STATUS OF THE NATION’S WATERS,

INCLUDING WETLANDS, UNDER THE

JURISDICTION OF THE FEDERAL

WATER POLLUTION CONTROL ACT

(110–61)

HEARINGS

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JULY 17 AND JULY 19, 2007

Printed for the use of the 

Committee on Transportation and Infrastructure

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STATUS OF THE NATION’S WATERS, INCLUDING WETLANDS, UNDER THE JURISDICTION OF THE FEDERAL WATER

STATUS OF THE NATION’S WATERS, INCLUDING WETLANDS, UNDER THE JURISDICTION OF THE FEDERAL WATER POLLUTION CONTROL ACT

POLLUTION CONTROL ACT

STATUS OF THE NATION’S WATERS, INCLUDING WETLANDS, UNDER THE JURISDICTION OF THE

FEDERAL WATER POLLUTION CONTROL ACT

STATUS OF THE NATION’S WATERS, INCLUDING WETLANDS, UNDER THE JURISDICTION

OF THE FEDERAL WATER POLLUTION CONTROL ACT

STATUS OF THE NATION’S WATERS, INCLUDING WETLANDS, UNDER

TROL ACTTHE JURISDICTION OF THE FEDERAL WATER POLLUTION CONSTATUS OF THE NATION’S WATERS, INCLUDING

WETLANDS, UNDER THE JURISDICTION OF THE

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36–734 PDF 2007

STATUS OF THE NATION’S WATERS,

INCLUDING WETLANDS, UNDER THE

JURISDICTION OF THE FEDERAL

WATER POLLUTION CONTROL ACT

(110–61)

HEARINGS

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JULY 17 AND 19, 2007

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 

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 

JULIA CARSON, Indiana 

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 

VACANCY 

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 

RICHARD H. BAKER, Louisiana 

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 

(II)

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

EDDIE BERNICE JOHNSON, Texas, Chairwoman 

GENE TAYLOR, Mississippi 

BRIAN BAIRD, Washington 

DORIS O. MATSUI, California 

JERRY F. COSTELLO, Illinois 

TIMOTHY H. BISHOP, New York 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

MAZIE K. HIRONO, Hawaii 

HEATH SHULER, North Carolina 

HARRY E. MITCHELL, Arizaon 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

JERRY MCNERNEY, California 

ELEANOR HOLMES NORTON, District of 

Columbia 

BOB FILNER, California 

ELLEN O. TAUSCHER, California 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

MICHAEL A ARCURI, New York 

JAMES L. OBERSTAR, Minnesota 

(Ex Officio) 

RICHARD H. BAKER, Louisiana 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TODD RUSSELL PLATTS, Pennsylvania 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

JOHN L. MICA, Florida 

(Ex Officio) 

(III)

(V)

CONTENTS Page

Summary of Subject Matter .................................................................................... viii

Proceedings of:

July 17, 2007 ........................................................................................................ 1

July 19, 2007 ........................................................................................................ 572

July 17, 2007

TESTIMONY 

Connolly, Kim Diana, Associate Professor of Law, Department of Clinical 

Legal Studies, University of South Carolina School of Law ............................. 28

Curry, Hon. Ron, Secretary, New Mexico Environment Department, Santa 

Fe, New Mexico .................................................................................................... 20

Hopper, M. Reed, Principal Attorney, Pacific Legal Foundation ......................... 28

Percival, Robert, Robert F. Stanton Professor of Law and Director, Environmental Law Program, University of Maryland .................................................. 28

Schweitzer, Hon. Brian, Governor, State of Montana, Helena, Montana ........... 5

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Altmire, Hon. Jason, of Pennsylvania .................................................................... 53

Baker, Hon. Richard H., of Louisiana .................................................................... 54

Costello, Hon. Jerry F., of Illinois .......................................................................... 59

Ehlers, Hon. Vernon J., of Michigan ...................................................................... 62

Mica, Hon. John L., of Florida ................................................................................ 65

Mitchell, Hon. Harry E., of Arizona ....................................................................... 70

PREPARED STATEMENT SUBMITTED BY THE WITNESSES 

Connolly, Kim Diana ............................................................................................... 73

Curry, Ron ................................................................................................................ 212

Hopper, M. Reed ...................................................................................................... 217

Percival, Robert V. ................................................................................................... 237

Schweitzer, Hon. Brian ........................................................................................... 266

SUBMISSIONS FOR THE RECORD 

Baker, Hon. Richard H., a Representative in Congress from the State of 

Louisiana, supplemental photographs ................................................................ 56

Connolly, Kim Diana, Associate Professor of Law, Department of Clinical 

Legal Studies, University of South Carolina School of Law:

Brief of the Honorable John D. Dingell, the Honorable John Conyers, Jr., 

the Honorable Robert F. Drinan, the Honorable Gary W. Hart, the Honorable Kenneth W. Hechler, the Honorable Charles McCurdy Mathias, Jr., 

the Honorable Paul N. McCloskey, Jr., the Honorable Charles B. Rangel, 

and the Honorable Senator Richard Schultz Schweiker, as Amici Curiae 

in Support of the Respondent, Rapanos v. United States, Carabell v. 

United States Army Corps of Engineers, Nos. 04-1034, 04-1348, Supreme 

Court of the United States, Jan. 13, 2006 ...................................................... 88

‘‘Any Hope for Happily Ever After? Reflections on Rapanos and the Future 

of the Clean Water Act Section 404 Program,’’ Vermont Law School 

publication ......................................................................................................... 129

‘‘Survey Says: Army Corps No Scalian Despot,’’ 37 Env’l Law Reporter 

10317 (May 2007) ............................................................................................. 150

‘‘Anchoring the Clean Water Act: Congress’s Constitutional Sources of 

Power to Protect the Nation’s Waters’’ ........................................................... 195

Page

VI

ADDITIONS TO THE RECORD 

Submitted by the Committee: Lance D. Wood, ‘‘Don’t Be Misled: CWA Jurisdiction Extends to All Non-Navigable Tributaries of the Traditional Navigable Waters and to Their Adjacent Wetlands,’’ Environmental Law Reporter’s News & Analysis, 34 (2004) .......................................................................... 269

American Association of State Highway and Transportation Officials, John 

Horsley, Executive Director, written statement ................................................ 300

The American Institute of Architects, Paul Mendelsohn, Vice President, written statement ....................................................................................................... 304

American Rivers, Katherine Baer, Director, Healthy Waters Campaign, bibliography of documents relevant to both hearings .............................................. 305

Association of State Floodplain Managers, Inc., Larry Larson, Executive Director, written statement ..................................................................................... 312

The Association of State Wetland Managers, Inc., Peg Bostwick, Chairman, 

written statement ................................................................................................. 313

California Association of Sanitation Agencies, Catherine Smith and Tim 

Quinn, Executive Directors, written statement ................................................. 315

Chamber of Commerce of the United States of America, R. Bruce Josten, 

Executive Vice President, written statement .................................................... 317

Chesapeake Bay Foundation:

Roy A. Hoagland, written statement .................................................................. 319

Additional written statement .............................................................................. 321

Citizens Campaign for the Environment, Adrienne Esposito, Executive Director, written statement .......................................................................................... 330

Coachella Valley Water District, Steve Robbins, General Manager-Chief Engineer, written statement ....................................................................................... 333

Friends of Wetlands, John Katko, written statement .......................................... 341

Great Lakes Aquatic Habitat Network and Fund, Jill Ryan, Executive Director .......................................................................................................................... 343

Lake Erie Region Conservancy, Tom Fuhrman, President, written statement . 344

State of Montana, Office of the Governor, written statement ............................. 346

National Association of Home Builders, written statement ................................. 348

National Mining Association, written statement .................................................. 361

The Nature Conservancy

Steven H. McCormick, President and Chief Executive Officer, written statement ................................................................................................................... 365

Nat Williams, Director of U.S. Government Relations, written statement ..... 366

Natural Resources Defense Council, Sierra Club, Earthjustice, American Rivers, National Audubon Society, U.S. PIRG, Southern Environmental Law 

Center, Environmental Integrity Project, Clean Water Action, joint written 

statement .............................................................................................................. 370

State of New Mexico, Office of the Governor, written statement ........................ 391

Northeast Ohio Watershed Council for Grand River Partners, Inc., David 

A. Lipstreu, AICP, Member, written statement ................................................ 393

Tip of the Mitt Watershed Council, Jennifer McKay, Policy Specialist, written 

statement .............................................................................................................. 395

Comments for the EPA Water Docket, Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of ‘‘Waters of the 

United States’’ ...................................................................................................... 400

Western Coalition of Arid States, Charlie Nylander, President, written statement ...................................................................................................................... 566

July 19, 2007

TESTIMONY 

Browner, Carol M., Principal, The Albright Group, LLC, and former Administrator of the Environmental Protection Agency ................................................ 584

Forester, Hon. Larry, City Councilman, Signal Hill, California .......................... 608

Hall, Marcus J., P.E, Public Works Director/County Engineer, Duluth, Minnesota .................................................................................................................... 608

Logan, Joe, President, Ohio Farmers Union ......................................................... 608

Meyer, Dr. Judith L., Distinguished Research Professor of Ecology Emeritus, 

University of Georgia, Athens, Georgia ............................................................. 616

Moyer, Steve, Vice President, Government Affairs and Volunteer Operations, 

Trout Unlimited ................................................................................................... 608

Page

VII

Semanko, Norman M., Executive Director and General Counsel, Idaho Water 

Users Association, Inc. ......................................................................................... 608

Yaich, Dr. Scott C., Director of Conservation Operations, Ducks Unlimited, 

Inc., Memphis, Tennessee .................................................................................... 616

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Altmire, Hon. Jason, of Pennsylvania .................................................................... 622

Baker, Hon. Richard H., of Louisiana .................................................................... 623

Costello, Hon. Jerry F., of Illinois .......................................................................... 626

Hirono, Hon. Mazie K., of Hawaii .......................................................................... 628

Matsui, Hon. Doris O., of California ...................................................................... 630

Mitchell, Hon. Harry E., of Arizona ....................................................................... 632

Oberstar, Hon. James L., of Minnesota ................................................................. 635

PREPARED STATEMENT SUBMITTED BY THE WITNESSES 

Browner, Carol M. ................................................................................................... 639

Forester, Hon. Larry ................................................................................................ 641

Hall, Marcus J. ........................................................................................................ 651

Logan, Joe ................................................................................................................ 655

Meyer, Judith L. ...................................................................................................... 661

Moyer, Steve ............................................................................................................. 713

Semanko, Norman M. .............................................................................................. 720

Yaich, Scott C. .......................................................................................................... 730

SUBMISSIONS FOR THE RECORD 

Meyer, Dr. Judith L., Distinguished Research Professor of Ecology Emeritus, 

University of Georgia, Athens, Georgia:

‘‘The Role of Headwater Streams in Downstream Water Quality,’’ Richard 

B. Alexander et al., Journal of the American Water Resources Association, American Water Resources Association ................................................. 668

‘‘Where Rivers are Born: The Scientific Imperative for Defending Small 

Streams and Wetlands,’’ Sierra Club, American Rivers ................................ 687

Westmoreland, Hon. Lynn, a Representative in Congress from the State of 

Georgia, response to request for information from Rep. Bishop ...................... 576

Yaich, Dr. Scott C., Director of Conservation Operations, Ducks Unlimited, 

Inc., Memphis, Tennessee, letter to Rep. Gilchrest ........................................... 738

ADDITIONS TO THE RECORD 

Submitted by the Committee: Rapanos v. United States, 547 U.S. 715; 126 

S. Ct. 2208; 165 L. Ed. 2d 159 (2006) (Nos. 04-1034 and 04-1384) ................. 740

American Farm Bureau Federation, written statement ....................................... 806

American Road and Transportation Builders Association, written statement ... 812

American Society of Civil Engineers, written statement ..................................... 819

The Associated General Contractors of America, Stephen E. Sandherr, CEO, 

written statement ................................................................................................. 840

The Edison Electric Institute on Clean Water Act Jurisdictional Issues, written statement ....................................................................................................... 849

The National Stone, Sand and Gravel Association, written statement .............. 856

National Wildlife Federation, Ducks Unlimited, Trout Unlimited, Izaak Walton League of America, joint written statement ................................................ 864

The Nationwide Public Projects Coalition, written statement ............................. 871

North American Benthological Society, R. Han Stevenson, Ph.D., President, 

written statement ................................................................................................. 873

Letters to the Committee from former Administrators of the U.S. Environmental Protection Agency .................................................................................... 875

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(1)

HEARING ON STATUS OF THE NATION’S WATERS, INCLUDING WETLANDS, UNDER THE 

JURISDICTION OF THE FEDERAL WATER 

POLLUTION CONTROL ACT 

Tuesday, July 17, 2007

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The Committee met, pursuant to call, at 2:00 p.m., in Room 

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

Oberstar [Chairman of the Committee] presiding. 

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

We meet to discuss one of the most important environmental 

issues of our time, the jurisdictional scope of the Federal Water 

Pollution Control Act Amendments of 1972. This is the first of two 

hearings and perhaps others that will follow on the history of the 

Clean Water Act and the intent of Congress over three decades ago 

in enacting this landmark legislation and on the effect of two decisions by the U.S. Supreme Court which in my judgment and that 

of many, many others has undermined the most successful environmental statute ever enacted. 

This October marks the 35th anniversary of the Clean Water Act 

and, more importantly, the 51st anniversary of the Federal Water 

Pollution Control Act of 1956, authored by that gentleman portrayed in the portrait in the corner, John Blatnik, my predecessor 

in Congress, former Chairman of this Committee who first hired 

me in January of 1963 as Clerk of the Subcommittee on Rivers and 

Harbors. 

I spent 44 years, much of that time in this Committee room and 

a good deal of it in another Committee room where the Public 

Works Committee started in the Cannon Office Building. 

He had the vision as he assumed the Chairmanship in 1955 of 

the Subcommittee on Rivers and Harbors, traveled the Mississippi 

River to understand what was needed in the way of works by the 

Corps of Engineers to support the navigability of the Mississippi 

and its tributaries: the Missouri, the Ohio, the Illinois and many 

others. 

But as he moved down the Mississippi River, a biochemist by 

training himself and a teacher of biochemistry, he said, what 

struck me was the increasing pollution of this mighty father of waters. By the time, he said, we got to New Orleans, there were raw 

2

phenols boiling in the water, dumped by countless cities along that 

2,000 mile journey of the mighty Mississippi to the Gulf. 

He came back to Washington, resolved to deal with the navigation needs and the dredging needs of traffic on the Mississippi but, 

more importantly, to deal with cleaning up discharges into the Nation’s waterways that were polluting, poisoning our waters. Shortly 

after that, he went down to the Tidal Basin in full cherry blossom 

dress and called it the best dressed cesspool in America. Out of 

that came the Federal Water Pollution Control Act of 1956 signed 

by President Eisenhower. 

A subsequent amendment to that act to expand the funding under the program from $30 million, 30 percent Federal grants to 

$50 million was vetoed by President Eisenhower. His veto message 

was written by Bryce Harlow, later a lobbyist for Procter and Gamble, with the salient two sentiments: Pollution is a uniquely local 

blight. Federal involvement will only impede local efforts at cleanup. 

That year, John F. Kennedy was elected President Kennedy was 

elected President, and one of his critical elements of his platform 

was cleaning up the Nation’s waters. That resulted in amendments 

of 1961 that expanded the program, subsequent amendments that 

improved it and then the far-reaching classic act of 1972 vetoed by 

President Nixon, a veto overridden by a vote of 10 to 1 by the Congress in October of 1972. 

An historic commitment to cleaning up the Nation’s precious resource, irreplaceable, all the water, all the water we have that ever 

existed that ever will be is here now. We are not going to create 

more water. 

This Committee bears responsibility for determining the future 

success of this Clean Water Act or its failure, and our work has 

been made difficult by the interpretation of the Supreme Court. In 

crafting that legislation and much of the House-Senate conference 

took place right in this room, I was part of that over many months. 

It was an 11 month conference. We clearly intended the broadest 

possible constitutional interpretation of the Act. 

I have read the SWANCC case. I have read the Rapanos case. 

I strongly disagree with the Court’s invention of a fiction, a fictional juncture between authority to protect and so-called traditional navigable waters. All those who participated in that HouseSenate conference understood the traditions of Congressional authority for traditionally navigable waters, but they purposely 

moved away from those notions in order to establish a new national commitment for clean water. 

We understood after extensive hearings on the subject, extensive 

practice under the 1956, 1961, 1967 Act amendments that we needed broader authority to deal with the quality of receiving waters 

than just dealing with the lakes and streams themselves. 

John Blatnik, in Floor consideration of the bill, said: In this 

measure, we are totally restructuring the Federal Water Pollution 

Control program and making a far-reaching national commitment 

to clean water. As much as our space program was restructured a 

decade ago when the late President Kennedy committed America to 

land on the moon, the legislation we are considering is of immeasurable significance to the Nation. 

3

In many ways and very predictive, he said, it is a far more difficult undertaking than the 42,500 mile interstate highway program which the Public Works Committee initiated in 1956. That 

has been hailed as the greatest public works undertaking in all history. The Water Pollution Control program we are initiating in this 

body will, in my judgment, be an even more monumental task. 

That was a visionary statement. 

The late Justice Rehnquist and current Justice Scalia pointed to 

the use of the term, navigable waters, which appears 86 times in 

the Clean Water Act, but the legislative history is very clear. The 

very opening paragraph of the Act says the purpose of this Act is 

to maintain the chemical, physical and biological integrity of the 

Nation’s waters. The very opening statement makes the definition 

of terms, makes it very clear what the purpose of the Act was. 

We have learned over many years that dealing with isolated waters, only receiving waters or only intermittent streams was not 

sufficient to protect waters. The language specifically referred to 

waters of the United States and the territorial seas. Our Committee report clearly said: ‘‘The Committee was reluctant to define 

the term, navigable waters, on the fear that any interpretation 

would be read narrowly which is not the Committee’s intent.’’

Then when we got into conference, ‘‘The conferees fully intend 

that the term, navigable waters, be given the greatest possible constitutional interpretation.’’

In the decades after enactment of the Clean Water Act, the 

Corps and EPA broadly interpreted that authority consistent with 

the intent of the committee of conference, consistent with the term 

of the legislation itself. So over 30 years, we have a body of practice, a body of application of this Act to address potential impairments of the water at their source, not just further downstream. 

Federal Government agencies have been able to administer this 

program very, very effectively and within keeping of the original 

purpose of the Act. 

The objective of the legislation that I have introduced with a 

large number of co-sponsors is to restore, post-Supreme Court decision, the original purpose of that Act and to reinstate the way the 

Act has been administered for over 30 years. We come back to this 

Committee room to do what visionaries before us undertook to do 

in the name of their generation and of future generations. 

Thank you. I yield to the Ranking Member, Mr. Mica. 

Mr. MICA. I thank the Chairman and appreciate his convening 

this hearing today, the first of several hearings that will deal with 

the status of our nation’s waters, including wetlands, under the jurisdiction of the Federal Water Pollution Control Act. 

I might say that I think we are all here for the same purpose 

and the same interest. I think everyone with any modicum of common sense would want to preserve and protect our natural areas 

in this Country, our wetlands and our environmentally sensitive 

bodies of water. 

I think we are here partially too, as we all know, because the 

U.S. Supreme Court kept a narrow definition of what we have 

come to know as a definition of wetlands, and that has resulted in 

a re-examining of that definition and also the status of our Clean 

Water Act performance. 

4

Any definition, redefinition or expansion of the definition of wetlands, if not carefully crafted, can result and I think we have to 

be careful that it would result in initiating costly litigation, more 

red tape and even more uncertainty for future efforts to clean up 

the environment and our natural bodies of water. 

Not only do we have that problem that we could impair future 

infrastructure development; we could halt projects around the 

Country that are necessary for development. We could depress employment opportunities. We could do all this, and we might in fact 

fail to achieve our original goal, and the original goal is cleaner 

water and natural bodies of water. 

Today, we are going to hear about some of the problems and successes of the Clean Water Act and probably hear some recommendations on how to improve the law. 

Some in Congress, including Mr. Oberstar and Mr. Dingell, have 

already introduced proposals to revise the Clean Water Act’s wetlands program. It is doubtful, however, that these proposals will 

really clarify, as they are currently drafted, Clean Water Act jurisdiction or create any certainty for the regulated public. 

Rather, I am concerned that these provisions could vastly expand 

Federal powers over private property, upset longstanding cooperative relationships that the Federal Government and the States 

have had with regard to water management and water quality, and 

create even more confusion and uncertainty over application and 

interpretation of the Act which will start all over again. 

The legislation that has been introduced proposes a much broader definition of ‘‘waters of the United States.’’ It will eliminate the 

traditional basis for Federal jurisdiction under the Clean Water Act 

by deleting the term, navigable, from the statute and expand the 

scope of Federal jurisdiction to its maximum limits under the Constitution. So all this opens a whole new can of worms. 

These changes would effectively erase many of the decades of jurisprudence and invite the Federal courts to decide the constitutional limits of Federal authority under the Clean Water Act. This, 

in turn, will spur even more litigation as the Government and 

stakeholders struggle to clarify the uncertain scope of jurisdiction 

under these new proposals and this new language and these new 

definitions. 

Congress has the responsibility to state clearly the jurisdictional 

limits of Federal regulatory programs, and I support that, but it 

shouldn’t create more confusion and more controversy and more 

litigation, more uncertainty, as I am afraid might happen with the 

proposal that has been introduced in Congress. 

I am pleased that our witnesses today and on Thursday will address their experiences with the Clean Water Act regulation. I anticipate we will hear about some of their problems and concerns 

with the way the program is currently working or not working. 

I do reserve the right, however, to work with both the former 

Chairman of the Subcommittee, Mr. Duncan, and also with our 

current Ranking Member, Mr. Baker, to look at the possibility of 

crafting a legislative alternative and something that could provide 

a better definition, less controversy and less uncertainty in reaching our mutual goal. So I hold that in abeyance. 

5

I hope the Members will listen to the testimony this week so that 

we can all work together to create legislation that is clear, legislation that is predictable, legislation that is reasonable and legislation that is truly protective of our water resources. 

I yield back. 

Mr. OBERSTAR. I thank the gentleman. 

We will have ample time to debate the issues the Ranking Member has raised, and I appreciate him being frank and straightforward about his thoughts. 

Governor, thank you very much for being with us today. 

I say to my Committee colleagues that others who have statements can summarize them during their five minute questioning 

period of time, but we don’t want to keep the Governor waiting. He 

has come a long way from Montana. I assume by Northwest Airlines since that is the best way out, but I know it is a trepidatious 

trip from out there. 

You are awfully good to spend time with us. Governor, I just 

have one question, and that is: How were the poll ratings of your 

dog? 

TESTIMONY OF THE HONORABLE BRIAN SCHWEITZER, 

GOVERNOR, STATE OF MONTANA, HELENA, MONTANA 

Governor SCHWEITZER. Higher than mine. 

[Laughter.] 

Mr. OBERSTAR. They were higher than most of us from what I 

heard not some time ago. Generous of you to be with us today. 

Thank you very much. 

I refer to a humorous comment the Governor made, speaking to 

a meeting of the Democratic Issues Conference a year or so ago. I 

wish I had the dog’s poll ratings. Thank you. 

Governor SCHWEITZER. Well, I have to be honest with you, Mr. 

Chairman and Ranking Member and the Members of this Committee. I try not to go places that I can’t bring my dog along with 

me. So if I made an exception here today, it is an important issue 

that we are here today. I come before you not just as the Governor 

of Montana but as a soil scientist, as a rancher, as a third generation farmer in Montana. 

Montana is known as the Treasure State, and it affects each and 

every one of you because for thousands of years in the high country 

of Montana we get large quantities of snow and through the summer this snow is melting and it renews America’s water supply 

every single year. In Montana, we provide the snow that is 70 percent of the Missouri River system. We provide 50 percent of the 

water that is stored in the Columbia River basin system. 

In Montana, at our Continental Divide, it is the only place in the 

United States that water flows to the Pacific, to the Atlantic and 

yes, indeed, also to the Arctic. We are the Headwater State and we 

are the Treasure State. 

A hundred years ago, we were the Treasure State because of all 

the wonderful minerals in the mountain. Of course, we were 

blessed. God spent six days making the rest of the world and the 

rest of the States, and on the seventh day after all of that practice, 

he created the Big Sky Country where in our mountains we have 

gold and we have silver. We have copper. We have 30 percent of 

6

the Nation’s coal supply. We have oil, we have gas, and we have 

the only platinum and palladium deposits in the Western Hemisphere. 

So, indeed, we are the Treasure State. But as we have come to 

find out and find out during the recent years, probably the greatest 

treasure that we have is not necessarily the minerals in the mountain but the mountains themselves and this cleansing snow that we 

send to the rest of the States every year. 

Now I seldom come before Congress and ask you to help us with 

anything because our history in Montana is that your help is very 

expensive. In fact, you help us manage the Missouri River draining 

system. 

We already described for you how we provide 70 percent of the 

water in the Missouri River system. We have the first big reservoir 

on the Missouri River system, and we think that we ought to have 

the opportunity to keep that first reservoir full for recreation, for 

irrigation, but we only have one Member of Congress and North 

Dakota only has one Member of Congress and South Dakota, the 

same. 

In fact, as it turns out, all of the States upstream from Missouri 

have fewer collectively than the State of Missouri. So the Missouri 

River ends up getting managed for the benefit of the State of Missouri and floating their boats as opposed to all of the concerns that 

we have upstream. 

If we, as leaders, could learn a single thing from the people who 

have occupied Montana and the Great Plains, the Indian people 

that have occupied it for as much as 5,000 years. Their leadership 

understood that you need to protect the future. 

We, as politicians, I bet you have all done this once or twice. You 

say we need to do something for our children, and some of you are 

visionaries and you say for our grandchildren, and some will even 

say the future generations. 

But the people who have occupied Montana and the Treasure 

State sustainably for more than 5,000 years, when they made their 

decisions, they always considered the seventh generation. If we 

were to consider the seventh generation, I think we would make 

different decisions than we have been making relative to our Nation’s water. 

Let us talk about this bill. To use as the barometer as to whether 

we are going to manage this water for clean water as to whether 

it is navigable or not is ludicrous. The natural filtration system at 

the headwaters of our water systems, that natural purifier, by definition, are these streams and streams that only flow when the 

snow is melting. Some of these headwater streams only flow for a 

few months per year, and yet that is your supply of clean water. 

We ask you to support this legislation, but we also ask you for 

some common sense because if you were to put the map of Montana on the northeast, it would run from New York City to Indianapolis, and yet we only have 930,000 people. 

We have a natural filtration system, and we make a living in 

Montana running cows on the range, and sometimes those cows 

drink water out of a pond or out of a river. We don’t want the long 

arm of the Federal Government telling us we can’t do that. 

7

We don’t want the long arm of the Federal Government stopping 

us from sustainable logging in Montana, and we don’t want the 

long arm of the Federal Government telling us what we ought to 

do with our fisheries at the high reaches of the Rocky Mountains. 

We want you to be our partner and collaborator. 

We don’t want to put the Federal Government in the position of 

managing our waterways all the way to the Rocky Mountains. We 

want you to be our partner, our collaborator. We want you to help 

us protect the water supply for the rest of the Country, but we 

don’t want to put our farmers out of business, our loggers out of 

business, our cattlemen out of business. 

I think that is the intent of what we are attempting to do here 

is to help protect the water and to maintain those natural resource 

businesses that we have in places like Montana. So, again, I thank 

you for considering this legislation. 

It is important because I understand the way lawyers look at 

things. They went off to law school, and there is a lot of words and 

a lot a books, and they try and draw a line between navigable, nonnavigable, but that is not the way you manage resources on the 

ground. Clean water isn’t necessarily a place that you can float 

your boat. Clean water actually has more to do with the places that 

you don’t float your boat because those are our natural filtration 

systems. 

So, again, I thank you. I encourage you to support this legislation, but I want to make sure that you protect those of us who are 

upstream, providing your water and don’t put our livestock people 

out of business, our loggers out of business and those who use 

water for irrigation. 

Let us protect the waterways, let us protect the fisheries, and let 

us protect the seventh generation. Thank you very much. 

Mr. OBERSTAR. Governor, I think that reference to the Native 

American people, the seventh generation, is something of great significance for all of us to ponder and to weigh carefully. I have read 

several of the treaties of 1837 and 1854 in which the promises were 

made by the great white father in Washington to the Native Americans as long as rivers flow. Let us make sure we keep the rivers 

flowing. 

Mr. Duncan. 

Mr. DUNCAN. Well, thank you very much, Mr. Chairman, and let 

me say that, first of all, I don’t suppose there is anybody in the 

Congress that admires and respects your knowledge of this Committee and its work more than I do. 

I think what we are all attempting to achieve here is balance. 

Last year in this Subcommittee, we passed a resolution commemorating the 30th anniversary of the Clean Water Act. We are 

all proud of the great progress we have made in making our waters 

cleaner over the last 30 years, and much of that progress was made 

because of the work of this Committee and because of the work of 

our Chairman over the last 44 years both on this Committee staff 

and on this Committee. 

Governor, certainly, it is an honor to have you with us. I have 

a first cousin who is a radiologist in Libby, Montana, and has been 

there for many, many years and loves it. 

8

I think the philosophy that you have expressed in your opening 

statement is one that is shared by almost everybody on our side 

when you say that you don’t want the long arm of the Federal Government managing your waters or preventing sustainable logging 

or hurting your farmers and ranchers. As I said, I think that is 

what we need to try to achieve. 

There are some groups who don’t want to admit that we have 

made progress over the last 30 years because they have got to keep 

telling us how bad everything is so they can keep their contributions coming in. 

Also, at the same time while we are proud of the progress we 

have made, we want to try to do better, but we have also noticed 

that in almost every industry or area that if we regulate too much, 

the little guys are the ones that are driven out of business. 

And so, I hope you will help us since you have come here today 

and testified and you are assuming a leadership role in regard to 

this legislation. I hope that you will meet with the smallest of your 

ranchers and farmers in Montana and maybe even other States 

and make sure that we are not going to do anything that hurts 

them or drives them out of business because they already have it 

tough enough as it is. 

Are you willing to do that? 

Governor SCHWEITZER. I do that pretty near every day of the 

week. 

Mr. DUNCAN. You have got in your statement that you are afraid 

that if we go with the Supreme Court decision that you would lose 

some Federal funding under the Clean Water Act. How much Federal funding does Montana get from the Clean Water Act right 

now? 

Governor SCHWEITZER. I can’t answer that question. I don’t have 

that number in front of me. You might have that. 

Mr. DUNCAN. Possibly what we could do would be to make sure 

in this legislation that you don’t lose any Federal funding. 

What I am thinking about is this. Governor McWherter, who was 

our Democratic Governor in Tennessee for many years, he would 

come to us every year and he would say, please, no more unfunded 

mandates. We have heard that from governors all over the Country, and it is a problem. 

I think, again, you expressed the philosophy of the people on our 

side when you said you want us to be a partner rather than some 

type of dictator. With that, I don’t think there is anything in your 

statement that I disagreed with, so I will just thank you for being 

here and let the Chairman move on. 

Governor SCHWEITZER. May I respond? 

Mr. DUNCAN. Yes, sir. 

Governor SCHWEITZER. Then you know with having a relative in 

Libby, in Montana, we have had a history, being the Treasure 

State, of a lot of companies coming in and mining the minerals, 

and so we have a hundred years of mining activity, and that mining activity that we conducted a hundred years ago doesn’t look 

anything like the way we do today. 

We have a lot of those glory holes that have been dug into the 

side of those mountains, and now we have pH 2.5, 2.8 water flowing out of the highest reaches of the Rocky Mountains, flowing into 

9

your water supply. So we need to continue to rectify those concerns 

that we have to protect your water supply. 

Of course, in Libby, probably one of the largest environmental catastrophes in the history of this Country where W.R. Grace was 

mining vermiculite mixed with asbestos and poisoned an entire 

town in one of the most remarkable places in America. The consequences of the actions that we have taken in the past are some 

of the things that we need to rectify in the future, not the kind of 

management that is conducted on the ground today but what has 

happened in the past. We still have hundreds of millions of dollars 

worth of cleanup to do in places like Montana. 

Thank you. 

Mr. DUNCAN. Well, I will say this. The people in Tennessee sometimes drink the water in California and Montana and places like 

that and vice versa. So I have always thought there was an important Federal role in regard to all of this that we are talking about 

here today. On the other hand, we can’t do it all. There has to be 

an important State role and a local role. 

But, as I said, I just think we have got to be careful and not 

over-regulate so that we drive the smallest of our businesses out 

of existence. In that case, you end up destroying jobs and driving 

up prices. The wealthy always come out all right, but who you hurt 

in that process are the poor and the lower income and the working 

people, and I think that is what we have got to be concerned about. 

We have got to do everything we can for the environment, but 

we have got to make sure we don’t harm humanity in the process. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Thank you. I appreciate the gentleman’s thoughtful remarks on my service on the Committee as well. 

Ms. Johnson, our Chair of the Water Resources Subcommittee. 

Ms. JOHNSON. Thank you, Mr. Chairman. 

Governor, what are the water resources in Montana most at risk 

of being polluted or filled and destroyed in the scope of the Clean 

Water Act if it is reduced and the law is read to exclude certain 

tributaries, streams and wetlands? 

Governor SCHWEITZER. The highest reaches of the Rocky Mountains often times contain the most minerals, and so near the Continental Divide is where we have been mining gold and silver and 

copper for well over a hundred years. 

In many cases, with the Mining Law of 1872, people came from 

all over the world to Montana for a very short period of time, and 

their aim was to dig a hole in the side of that mountain big enough 

so that they could collect enough gold that they could go back and 

buy their home town out. A lot of them did that, and what they 

left behind was these big old holes in the side of a mountain. 

That mountain is a living place. There is water that flows 

through that mountain. It is part of the filtration system. When 

you excavate the side of that mountain and you expose pyrite To 

air and to water, pyrite is a mineral that will change the pH of the 

water from its native 7, 7.2, even 7.5 down to 2, 2.5 and that water 

flows out from the Continental Divide in streams that don’t even 

flow all year into the next creek to the next creek to the next creek 

and to the river and finally to the Missouri River where it flows 

all the way to the Gulf of Mexico. 

10

The greatest challenge that we have collectively is to protect the 

water supply for some 20 States that starts high in the Rocky 

Mountains of Montana. A great part of the problem we have isn’t 

the things that we are doing today, but it was activity that was 

conducted as much as a hundred years ago, and we have no permanent solution to solve the problem. So we will have ongoing water 

treatment for as long as the snow lands in the high countries of 

Montana. 

So we need your help. Thank you. 

Ms. JOHNSON. Thank you very much. 

Mr. OBERSTAR. Mr. Petri? 

Mr. Coble. 

Mr. COBLE. Thank you, Mr. Chairman. 

Governor, good to have you with us. 

Governor, you mentioned your ranchers earlier. What sort of response have you had from your farmers and ranchers and localities 

to this proposal? 

Governor SCHWEITZER. Well, farmers and ranchers in Montana 

like clean water because the most likely folks to drink the water 

on their ranches are themselves and their livestock. The ranchers 

in Montana want to make sure that we maintain a high quality of 

water because that is the water for their livestock. The farmers in 

Montana want to continue with a clean water supply because we 

export our agricultural products all over the world, and a great 

part of our production is with irrigation. 

So farmers and ranchers are supportive of clean water. Farmers 

and ranchers would like the Federal government to help us. Remember, most of these farms and ranches are more out on the prairie and the water starts high in the Continental Divide at those old 

mines that we have there. The last thing a rancher wants is for 

some of that water to flow down out that mountain with low pH 

or heavy metals that would destroy his land or his livestock. 

Again, the farmers and ranchers would like your help, but they 

wouldn’t like to be in a position where the Federal Government 

says, oh, boy, you know that stock pond that you have got there 

on your ranch where you built it or your granddaddy built that 

thing 75 years ago? Well, you no longer can have your cattle take 

water out of that because now we in Washington, D.C. think we 

own that water. 

That is something that we don’t want to see happen. 

We also don’t want the Federal Government to come in and say, 

the way you are irrigating, sir, has got to change today without the 

resources to change. 

So if you want us to change in Montana, you bring us the dollars 

and we will do some of those changes. 

Mr. COBLE. Water, the essential commodity for generations has 

generated much controversy in a way. So I think we all want clean 

water. 

Governor, I am told that western Montana is currently experiencing a boom in natural gas production, presumably greatly benefitting your State’s economy. How will H.R. 2421 affect, if it will 

affect, Montana’s economy and the ability of what is probably a 

regulated energy sector to develop natural gas with every small 

11

and presumably intermittent body of water may well be under Federal regulation? Will that have any adverse or negative effect? 

Governor SCHWEITZER. Our natural gas is actually for the most 

part in eastern Montana. Our dry natural gas which is drilled 

much deeper to as much as 8,000 and 12,000 feet, probably not affected at all. 

But coal bed methane which are shallow wells that are drilled 

to coal seams, 500 to 1,000 feet, that have been aquifers, it would 

affect us a great deal. The way you develop coal bed methane is 

you drill a well to the coal seam 500 or 1,000 feet deep and you 

start pumping the water out and you release the pressure and then 

the gas starts to flow. 

We already have some great concerns with coal bed methane because the water that is associated with that coal is often very high 

in sodium. The sodium absorption ratio is very high. If you just 

dump that water in one of our rivers and the irrigator downstream 

brings that water back out and irrigates his farm, after about eight 

or ten years, he is going to have big reductions in yield because his 

soil will start turning to cement. 

So probably not going to affect us that much because we are already regulating that coal bed methane industry. We are saying to 

them, if you have got high sodium water, you are going to have 

treat it before you put it in the river or you are going to have to 

reinject it back into a deeper geological structure. 

Montana already has some regulations that are dealing with coal 

bed methane and, frankly, our regulations are different than Wyoming’s. Wyoming now has about a hundred times as many of these 

coal bed methane wells as us, and they are dumping their water 

into the Tongue and the Powder Rivers that flow up into Montana. 

Then we become the recipient of that sodium. So there is kind of 

a rub between us right now in Wyoming and Montana. 

Mr. COBLE. I thank you, Governor. Good to have you with us, 

Governor. 

I yield back, Mr. Chairman. 

Mr. OBERSTAR. I appreciate the gentleman’s question. I just want 

to remind the gentleman that in the Energy Act of 2005 Congress 

exempted oil and gas exploration from the provisions of the Clean 

Water Act, and that covers the question you asked, not that I agree 

with that. I opposed it vigorously, but I lost that argument on the 

Floor. 

Mr. COBLE. Mr. Chairman, you don’t lose many arguments. 

Mr. OBERSTAR. The gentleman from Washington, Mr. Baird. 

Mr. BAIRD. Governor, I very much appreciate it. It is good to see 

you again and good to have a fellow westerner out here. 

I think you have hit the nail on the head in terms of the challenge. This is it. As we say, we are a pretty wet State, but we have 

also got a dry east side as you know. 

The challenge we face is let us suppose you are a farmer and it 

rains a fair bit. Water collects on part of your farm, and that gets 

your farm classified as a wetland. Then you have to get the permitting to do anything you want around there. 

One thing I would like to ask you about for the edification of the 

whole Committee is if we were to pass legislation preserving the 

status of the Clean Water Act protects for wetlands but not do anyVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
12

thing on the permitting side, particularly vis-a-vis salmon and 

other things like that, could you enlighten us a little bit about the 

challenges your State, my State and other northwestern States face 

with environmental permitting that doesn’t affect States impacted 

by an ESA listing of a species that swims right by your major properties? 

Governor SCHWEITZER. Well, as you know, in Washington and 

Oregon, they are primarily concerned about a species of salmon 

that likes to swim upriver, and then we built those dams. In Montana, we have a white sturgeon. 

It is the doggonedest thing. The time that we need to release 

water from the reservoirs in Montana so that we can improve the 

habitat for the white sturgeon is exactly the wrong time for the 

salmon and vice versa. So since there are more Congressmen from 

Washington and Oregon than we have in Montana, we often times 

end up releasing the waters for the benefit of the salmon. 

Here is the way it works on the ground in a place like Montana. 

You want to do some work around your stream or wetland or something like that. You go right on into your local conservation district, and you first get a 310 permit. 

You have local on the ground farmers and ranchers elected from 

that community that come out and take a look at it and see if it 

makes sense and whether there is going to be any deleterious effect 

to folks around because of that activity. They think it is going to 

be okay. You get your 310 permit. 

If it is on a little bit bigger river, then you need the Army Corps 

of Engineers to come in and do a little work for you, to decide 

whether it is going to be okay. In some unusual cases, you are 

going to have to have the EPA do something. But for most of this 

work, small streams, wetlands, it is probably just a 310 permit and 

it will be issued by your conservation district that has been locally 

elected. 

Mr. BAIRD. See, we have it different, and I think that illustrates 

one of the challenges that led to the Court decision and that is before us today. Even if you have a relatively small holding, you may 

well need to get a Corps of Engineers permit, and that is a much 

more difficult process than that which you have just described. 

I think that would be one of the questions, Mr. Chairman, the 

people would have about this is how the permitting interface with 

this legislation will be affected in terms of if you don’t. 

It is particularly consequential for us in that because of the listing of salmon and steelhead and bull trout, we have got so many 

listed species proximal to major metropolitan areas and because of 

lack of staff of Corps of Engineers permitting officials. 

The more water areas that fall under jurisdiction, the more the 

permitting demand is. Without a commensurate increase in permitting personnel, you have these enormous backlogs. Two, three, 

four, five years is not uncommon. That money that is spent both 

in opportunity costs, direct expenditures, permitting, et cetera, 

could be used in other ways, and it could be deeply frustrating to 

our private landowners. So we face this paradox. 

Your point is well taken, Governor, that we want to protect the 

water supply. That includes the aquifers. We get aquifer supply 

13

from Montana as you know well. Some of our aquifers in Washington State are sourced out of Montana. 

Governor SCHWEITZER. We will send you the bill. 

Mr. BAIRD. Well, the reason I say that is there is some legitimate 

commerce issues here. Some people say, well, there is no commerce 

clause here. I think there is a commerce clause applicable because 

it does cross State lines, but at the same point we have got to deal 

with this regulatory situation because it has a profound impact. 

The Corps, by the way, parenthetically, not only have they traditionally been underfunded in terms of permitting staff, but the Iraq 

conflict has pulled some of their best staff. This is an anti-Iraq 

statement. It is just a statement of fact. It has pulled some of their 

best staff off mid-processing time, thereby further extending the 

backlog. 

As we deliberate the Chairman’s well intentioned legislation, I 

think we need to look realistically at permitting consequences, particularly in States where this has an impact. 

I am glad to see you here, Governor, and I yield back the balance 

of my time. Thank you. 

Governor SCHWEITZER. Thank you. 

Mr. OBERSTAR. We dealt successfully with permit streamlining in 

the SAFETEA-LU legislation for highways, and I hope we can work 

out a streamlining proposition for the Clean Water Act. 

Mr. Gilchrest. 

Mr. GILCHREST. I thank the Chairman. 

I came in a little bit late, but I appreciate your recognizing me. 

I won’t be too long because I know Mr. Ehlers has been sitting here 

longer than I have. 

Mr. OBERSTAR. If you wish to yield to Mr. Ehlers, I will be happy 

to recognize him at this time. 

Mr. GILCHREST. I will just ask two quick questions to the gentleman from Montana, and I will yield two minutes to Mr. Ehlers 

who will later get five minutes, so he will get seven minutes. 

Mr. OBERSTAR. In my State, we call that Minnesota nice. Now 

that is Maryland nice. 

Mr. GILCHREST. Maryland nice. We are trying to mix it up with 

Minnesota, Maryland, Michigan, Montana, all the M States. 

Governor, I appreciate you being here and your knowledge on 

this issue. 

I just want to make some quick comments for the Members that 

are here, that the present Clean Water Act, Section 402 but specifically 404, exempts the following activity from needing a permit: 

normal farming practices, silviculture, ranching activities such as 

plowing, seeding, cultivating, minor drainage, harvesting for production of food, fiber, forest products, upland soil and water conservation practices. 

All those practices right now do not need a permit. They are exempted from a permit in 404. 

Maintenance including dykes, dams, levies, groins, riprap, breakwaters, causeways, bridge abutments, et cetera., they don’t need a 

permit, not even a nationwide permit; prior converted cropland. 

So there are numerous provisions in the Clean Water Act right 

now that recognize the need for that type of commerce, especially 

in the agricultural community. 

14

The question is and I think Mr. Oberstar has included this in the 

provision of taking the word, navigable, which it seems to me in 

the history of the bill, the word, navigable, up until recent years, 

recent Supreme Court decisions, has basically been broadly interpreted as meaning waters of the United States. 

But since we are now faced with a couple of Supreme Court decisions that make that a little bit difficult to interpret that way, my 

question to you, Governor, is Mr. Oberstar wants to take the word, 

navigable, out and replace waters of the United States in the same 

way that it has been interpreted since 1972 up until recent years. 

Now putting in a provision to ensure the agricultural community, 

that the exemptions that now exist for permits under the Clean 

Water Act, will continue to persist after this change has taken 

place. 

Do you see any problem down the road with past judicial precedence or reinterpretation by outside groups that could bring lawsuits as being a problem with the proposed changes by Mr. Oberstar? 

Governor SCHWEITZER. Well, it has been my experience that as 

long as we hatch lawyers from our law schools, there is going to 

be reinterpretations of laws that we have written. That is how they 

make a living. And so, whether you pass any new legislation or you 

maintain the legislation that you have got right now, you are likely 

to have some challenges as we go forward. 

My caution is simply this: Make sure that the unintended consequences do not occur which are to shut down legitimate businesses in the natural resource industry that already have good filtration systems, that are maintaining a filtration system that already exists, that are just simply trying to continue an irrigation 

business in a place that has already been irrigating for the last 

hundred years, and there has been no significant damages to the 

land or any endangered species. 

I think that in the implementation of the rules, we can get there. 

But I would just caution that in writing this legislation, make sure 

that you give adequate authority to local folks on the ground to interpret these rules. For example, the conservation districts that I 

mentioned earlier that are locally elected, that have the charge of 

protecting the water in each of these conservation districts in nearly every agricultural county in America. 

Mr. GILCHREST. Governor, you would not oppose taking the word, 

navigable, out? 

Governor SCHWEITZER. Actually, I think that the term, navigable, 

has no place in deciding a bill about clean water because it doesn’t 

really define those places that are actually filtration systems. 

As I have described before, Montana’s greatest problems are the 

mines that were left behind at the Continental Divide, and you 

can’t float a boat over the top of the mountains because if you did, 

Lewis and Clark would have arrived at the ocean about two 

months earlier. 

Mr. GILCHREST. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. I thank the gentleman. 

We will now go to Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

15

Governor, it is good to see you again, and you talk my language, 

sir. 

Water is a big issue in most of the western States. One of the 

questions I would have for you is have you seen marked change in 

the water yield, the amount of water? Is the climate change affecting the amount of water that you are seeing whether it is in your 

streams, in your aquifers, in your flows? 

Governor SCHWEITZER. I got to tell you. Montana being the Headwater State, and I already described to you that our water flows 

to the East Coast and the West Coast and up to the Arctic and 70 

percent of the water in the Missouri River system and 50 percent 

makes it on to Washington and Oregon, the Columbia River system 

from Montana. 

The driest 10 years in history have been during the last 11 years. 

We are getting less snow in the high country. It is melting sooner 

in the spring. And so, this recharge system that we have created 

in Montana for the rest of the Country, we are finding that that 

snow that used to last all the way into August until we would get 

some replenishing snow, it is disappearing, and some of those high 

mountain streams are drying up. 

We have springs that are disappearing all across Montana. Artesian wells are drying up. We are getting less precipitation in the 

high country in Montana, and that affects each and every one of 

you in this Country. 

As we get less snow there, we have less water for the rivers that 

recharge other rivers all across both the Pacific Basin, Atlantic 

Basin, all the way to the Arctic. It is affecting our irrigation supply. It is affecting our drinking water. It is affecting wildlife habitat. 

Some of our fisheries in the high country, for example, we have 

had to suspend fishing in the afternoon at some of the best blue 

ribbon trout streams in America because we have less of that cold 

water flowing down out of those glaciers, and the water has become 

so warm that it can’t contain as much oxygen as those fish need, 

and we are losing them. 

That is something I can’t control. The Governor of Montana is a 

pretty powerful guy, but I can’t place more snow in the mountains 

in Montana. 

I think you can argue about what is creating the climate change, 

but I don’t think there are many people in Montana who would be 

willing to argue that there isn’t something going on here. There is 

a climate change occurring. 

Mrs. NAPOLITANO. What are you proposing to do to be able to reduce? A lot of conservation, possibly recycling storage? One of my 

biggest issues is recycling. 

How do we educate our people to change with the climate, if you 

will? 

Governor SCHWEITZER. It is a tough one. 

Mrs. NAPOLITANO. Yes. 

Governor SCHWEITZER. We don’t respond well to things that 

aren’t a crisis in this Country. Some of the things that we could 

do are to allow Montana to fill our reservoirs to full pool and not 

send it all down the Missouri so they could float a few boats. That 

would help us in Montana. 

16

But, ultimately, there is only one way that I can deliver more 

water to the Missouri River drainage system because I can’t guarantee you any more snow, and I can’t make it rain just because I 

pray. 

What I can do is I can tell you about a treaty that we had with 

Canada, Alberta, a hundred years ago. Coming out of Glacier National Park, right up at the highest reaches of the Continental Divide, there are a couple of rivers. There is the Milk River and there 

is the St. Mary’s. We made an agreement with Alberta a hundred 

years ago that we would share the water equally in those two 

drainages. 

Now this is where it gets interesting. The Milk River and the St. 

Mary start in Montana. Then they both flow up into Alberta. The 

Milk River comes back into Montana and ultimately flows into the 

Missouri River. Okay, now you know how you have got a dog in 

this hunt. 

The St. Mary River just heads on up and goes to the Arctic. Well, 

we made a deal. We built an aqueduct that would bring half the 

water over from the St. Mary to the Milk, and then they would irrigate with a little bit in Alberta, and it would flow down into Montana and it would ultimately go into the Missouri. 

Well, that old aqueduct has worn out, and we are not getting our 

full dose of water into the Milk River, so you are getting less water 

in the Missouri River. If you would help us out with a few shekels 

in Montana so we could maintain that system, I will promise you 

we will deliver more water to the Missouri River system. 

Mrs. NAPOLITANO. And you would do that by? 

Governor SCHWEITZER. Well, this aqueduct system that we have 

already built that is leaking and it is worn out, it is not able to 

haul as much water as we used to. If we can get the dollars in a 

cost-share with the State of Montana and with Alberta who will 

put some money in, we can move more water from the St. Mary 

into the Milk River drainage system that ultimately goes into the 

Missouri River instead of just going on up to the Arctic. 

Help us out; we will bring you some water. 

Mrs. NAPOLITANO. We will talk later. That is one of my issues. 

Thank you, Mr. Chair. I yield back. 

Mr. OBERSTAR. Mr. Ehlers? 

Mr. EHLERS. Thank you, Mr. Chairman. 

First of all, Governor, thank you for being here. You are a very 

refreshing witness, and I appreciate not only your comments but 

the wisdom behind those comments. 

Mr. Chairman, first of all, I would like to ask unanimous consent 

that my opening statement be entered into the record. 

Mr. OBERSTAR. Without objection, so ordered. 

Mr. EHLERS. Thank you. 

I think what came through your comments is simply that all 

water is connected, and that is in a sense why I support Mr. Oberstar’s bill because we can’t assume that isolated ponds are not connected with other aquifers under ground and above ground. They 

are all connected and we have to take that into account. 

That means if you are going to worry about applying the law, 

someone has to go out and look at a particular situation and make 

a judgment as to how that is to be regulated. 

17

On another issue which is related to water but not related to 

your testimony, Mr. Chairman, I just want to enter into the record 

here my concern over the sad news that British Petroleum plans 

to dump thousands of tons of ammonia and refinery sludge into 

Lake Michigan just north of Gary and under current law is allowed 

to do that. I found that astounding. 

That must be a remnant of the old rule of thumb that dilution 

is a solution to pollution because dumping thousands of gallons of 

ammonia into Lake Michigan and thousands of cubic feet of sludge 

containing heavy metals does not seem to be a good solution, but 

apparently it is legal at this point. So I hope we will take that situation under consideration too. 

With that, I will yield back. 

Mr. OBERSTAR. That is appalling, absolutely appalling. We will 

have to join forces to prevent that from happening. 

Mr. EHLERS. Thank you. 

Mr. OBERSTAR. We have about an hour of voting ahead of us, and 

I would propose that we recess and not hold the Governor. Before 

we do so, I would like to just go around the room and invite Members who have not yet spoken to ask at least one question of the 

Governor without making a speech on it. 

Ms. Hirono? 

Mr. Miller. 

Mr. MILLER. Yes, I really have some concerns with the bill. California is a different situation than you might face in your State. 

You talked about water carrying pollutants coming down from the 

mountains on the farmers. 

The Clean Water Act in California has been applied so broadly 

through the courts that instead of source of pollution going to an 

industrial source, as it should since they are polluting the waters, 

it goes to a subdivision building homes. They say that might be a 

source of pollution, so you need retain all on your water onsite in 

the subdivision. 

Mr. Chairman, I know who you are and you are a good man. 

My concern that I have in this bill is that it appears to me that 

it is rather vague what waters could be construed to be of the U.S. 

If it is challenged in court by a special interest group, it could 

mean ditches, pipes, streets, gutters, drainage, farmland, groundwater, even a wastewater treatment plant. It could go to that degree. In many cases, it is being expanded beyond the intent today. 

My concern is that that could be the result of this bill because 

I am not sure that the definition is clear enough in this bill, what 

the definition of waters and virtually anything that carries waters 

could be determined to be. I would strongly encourage you to review that section of the bill because I think if we pass this bill as 

drafted, the intent in my State is going to be horrendous as it applies to try and provide affordable housing for the growth that we 

expect in our State. 

But we all agree on wanting clean water. We all agree that we 

need to do something about that. 

My concern in your State is if this bill is not defined more properly, it could mean any waters running off of one of your dairies 

or your farms or whatever, and you could be required to keep all 

that onsite, which in California we really do. Our dairy guys have 

18

to retain all the water on their property that comes from their 

property. It has been litigated to that degree. 

I think that should be a huge concern for your State, and I would 

please ask the Chairman to look into that and make sure we are 

more definitive. 

Mr. OBERSTAR. I would invite the gentleman’s attention to Section 6 of the Act, the savings clause which restates the key provisions of the Clean Water Act of 1972 and addresses those issues, 

limiting the Act to the purposes of the original law and not expanding it beyond that. 

Mr. MILLER. I think the original law needs to be more defined. 

Mr. OBERSTAR. Well, if you want to have a debate about the 

Clean Water Act of 1972, that is a different matter but about my 

bill that reinstates, I don’t think there is a debate. 

Mr. Arcuri? Mr. Carney? Mrs. Capito. 

Mrs. CAPITO. Yes. Governor, I represent the State of West Virginia, and like my colleague from Washington, Mr. Baird, I share 

some concerns. Our permitting processes with the Corps for our 

coal mining are all held up in litigation. It is very lengthy, very 

costly and very discouraging to those who want to get coal out 

which I do to power America. 

Do you have these same kinds of problems in Montana in terms 

of your permitting for your coal mines and how do you think this 

act will influence that? 

Governor SCHWEITZER. Well, in all due respect to you and my 

good friend, Joe Manchin, our coal is real close to the surface, and 

so we just peel back 30, 40 feet of soil and go in with a front loader 

and dig it out like gravel. Then when the coal is gone, we push all 

that back in and replant it to native vegetation. 

Mrs. CAPITO. You never have to worry about the intermittent 

stream and all that ephemeral stream? 

Governor SCHWEITZER. The country where we have most of our 

coal is 10, 11 inch rainfall. There are no creeks running through 

there. We are well above where the aquifers are for the most part. 

Once again, God blessed us on the seventh day when he created 

the Treasure State and we didn’t have to be in the situation of having to dig inside a mountain in order to get our coal. We get it pretty close to the surface with a tractor. 

Mrs. CAPITO. Thank you. 

I have concerns over the navigable water clause or removing 

that. I certainly am like everybody, wanting the clean water. I 

think it is something we need to work with. I look forward to working with the Chairman on this. 

Thank you. 

Mr. OBERSTAR. I look forward to it. Thank you. 

Mr. Westmoreland. 

Mr. WESTMORELAND. Thank you, Mr. Chairman. 

Governor, have you read the bill? 

Governor SCHWEITZER. Yes, I have. 

Mr. WESTMORELAND. Okay. Did you read the section where it 

talks about waters of the United States and what all that includes? 

Governor SCHWEITZER. I haven’t got the bill in front of me. You 

can remind me. 

19

Mr. WESTMORELAND. Okay, I will remind you: lakes, rivers, 

streams, intermittent streams, mudflats, sandflats, wetlands, 

sloughs, prairie potholes, wet meadows, playa lakes, natural ponds 

and all impoundments of the foregoing or activities affecting these 

waters. 

Your 310 permit will be a thing of the past because what this 

bill does, it expands the EPA’s and the Corps of Engineers’ authority to these things where now it is navigable water. That long arm 

of Government is going to come into Montana, and I hate that because I think you are a very sincere person. I know the Chairman 

is very sincere on clean water. We all want clean water. 

This is giving the Corps and the EPA authority over the State 

that you already regulate those things in a way that is beneficial 

for all of us, but that power will now be transferred to the Federal 

Government. 

So that is all the comment I have, Mr. Chairman. Thank you. 

Mr. OBERSTAR. I want to observe for the gentleman from Georgia 

who has cited this provision and invite his attention to the Corps 

of Engineers Code of Federal Regulations, Part 328, Definition of 

Waters of the United States. 

Section 328.3, Definitions: All waters such as intrastate lakes, 

rivers, streams including intermittent streams, mudflats, sandflats, 

wetlands, sloughs, prairie potholes, wet meadows, playa lakes and 

all the other words that we have used in this bill are drawn exactly 

from 30 years of Corps of Engineers regulation in accordance with 

the term, waters of the United States. 

This is not a new creation. This is not new regulatory authority. 

It is existing authority, I say to the gentleman and I yield to him. 

Mr. WESTMORELAND. I thank the Chairman for that. I think the 

only thing that has kept the Corps and the EPA out of that is the 

navigable water portion of this bill which we are taking out. 

But I respect the Chairman. I know that he has been here a lot 

longer than I have. 

It is just that I have dealt with this in my business. I know the 

Corps. I am going to enter things into the record on the Corps that 

has held up reservoirs for drinking water for my county since the 

early 1970s, and we have not received a permit yet. I am very familiar with it, and I understand it. 

I agree with Mr. Miller that we need some redefinition in the 

Clean Water Act, and I know that is a subject for another day. 

Mr. OBERSTAR. Mr. Diaz-Balart? 

All right, thank you. 

The call of the House is more powerful than the call of questioning the Governor of Montana. We all have to go and vote. 

I just want to reference some very thoughtful comments made in 

your testimony: We believe that all upstream tributaries, the waters that discharge into the Missouri, Yellowstone, Kootenai and 

Clark Fork, along with wetlands, are an integral part of our Nation’s watersheds and affect the health of all waters of the United 

States—a very prescient, very thoughtful statement. 

You reference the wetlands that are less than a percent of the 

State, and you say the ecologic and economic importance of the waters far outweighs their relative size. You picture for us a 50 gallon 

drum of PCBs leaking into one of the depressional wetlands, and 

20

the connection between these isolated waters and waters of the 

United States—a very powerful image to us. 

It brings us back to the days of the forties and fifties when power 

companies were changing out their transformers, and they gave the 

spent liquid, that inert liquid to county highway departments. They 

spread that on the dirt roads to keep the dust down, not realizing, 

not knowing that it was PCB and that it would be washed off the 

road, into the ditch and from the ditch into the creek and from the 

creek into the tributary and the tributary into the river and then 

into the lake and then into the Mississippi, and generations have 

been poisoned because of it. 

That is what you were talking about. That is what you have the 

prescience to understand. We will take to heart your counsel and 

that of Native American people to protect these waters into the 

seventh generation. 

Thank you for your testimony. 

Governor SCHWEITZER. Thank you very much. 

Mr. OBERSTAR. The Committee will stand in recess until the conclusion of these votes, and we will resume. 

[Recess.] 

Mr. OBERSTAR. The Committee will resume its sitting. 

We escaped with fewer votes than anticipated, and we will continue with testimony of Secretary Curry of the New Mexico Department of Environment. 

We thank you very much for journeying a long distance to be 

with us today. 

Please give Governor Richardson my great appreciation for making you available. 

He and I served in the House together and traveled to El Salvador in pursuit of human rights issues in the early eighties, 1982, 

1983, where Governor, then-Congressman Richardson visited hospitals where there were both wounded citizens who had been attacked by the ruling class and soldiers who had been attacked by 

the people resisting oppression. In his wonderful way, his warm 

and his native speaker Spanish fluency was able to comfort people 

on both sides of the conflict. 

I think that is where he got his appetite for involvement internationally in human affairs issues and later went on to the United 

Nations and to being an intermediary in international conflicts. It 

started with our common excursion into El Salvador in pursuit of 

human rights in Central America. I have only the fondest memories of Bill Richardson. 

Mr. CURRY. Mr. Chairman, I will certainly pass that on to him. 

Mr. OBERSTAR. We welcome you today on a subject of similar 

magnitude, the Clean Water Act. 

TESTIMONY OF THE HONORABLE RON CURRY, SECRETARY, 

NEW MEXICO ENVIRONMENT DEPARTMENT, SANTA FE, NEW 

MEXICO 

Mr. CURRY. Thank you, Mr. Chairman. My name is Ron Curry 

and I am the Cabinet Secretary of the New Mexico Environment 

Department in the Administration of Governor Bill Richardson. 

The Clean Water Act has been our Nation’s main tool, as you 

know, in ensuring the continued protection of the water we drink, 

21

enjoy for recreation and that wildlife communities rely upon. Unfortunately, the effectiveness of this tool has been blunted by two 

recent Supreme Court decisions. This is especially troubling in New 

Mexico, a very arid State that has relied on the Clean Water Act 

to help us protect our limited but very, very precious water resources there. 

It is important for us to remember that the passing of the Clean 

Water Act is one of our Nation’s successes. Waters that 30 years 

ago were thick with waste discharges now support thriving recreation and economic activities. Our quality of life has improved and 

so too has the sustainability of aquatic species and wildlife, but 

now those protections are mired in widespread confusion amidst judicial and bureaucratic gridlock because it is no longer clear what 

waters will continue to be protected. 

In effect, the Supreme Court has ruled that there are two classes 

of water, one that is tied directly to navigability and deserves Federal protection from pollution and the second class that is completely abandoned. 

As the man put in charge by Governor Richardson with protecting New Mexico’s limited water supply from pollution, I can tell 

you and I would hope that those of you have been to New Mexico 

can see this. I will tell you that basing the decision on what water 

deserves to be clean or whether you can float a boat on it is an extremely limited view. Quite simply, it is lunacy. 

There are times during the summer months when you can’t float 

a boat down the mighty Rio Grande. I can tell you since the mighty 

Rio Grande is New Mexico’s main water source, there have been 

times when I have been able to walk across the Rio Grande without touching any water. So it is indeed lunacy. 

To put it another way, many of you today have glasses or bottles 

of water in front of you. As an analogy, imagine that those glasses 

collectively made up the waters of the United States as you look 

around this room. Before 2001 and the SWANCC decision, the 

water in those glasses was protected by the Clean Water Act. However, today because of the SWANCC and Rapanos decisions, as 

much as half of those bottles of water or glasses that you have in 

front of you may no longer be protected. 

I want you to have good clean water in those glasses or bottles 

that you are drinking out of, but if the Supreme Court decisions 

stand, no one can say for sure if that will be the case if those were 

the waters of the United States. 

Nowhere have the limitations created by these two recent Supreme Court decisions been felt more acutely than in the desert 

Southwest. We simply have no water to waste in New Mexico and 

in Arizona and the rest of the Southwest. The water we do have 

and its quality is of utmost importance to our continued health, 

citizens and the future economic development of our region. 

Additionally, waters within the closed basins that cover up to 

one-fifth of New Mexico would also be left vulnerable to pollution. 

That includes 84 miles of perennial streams, 3,900 miles of intermittent waters, 4,000 playa wetlands in New Mexico and numerous 

headwaters, springs, cienegas and isolated wetlands. Threatened 

basins include the Tularosa, Mimbres, San Augustine, Estancia 

and Salt in central, south and southwestern New Mexico. 

22

The misguided Court rulings that we have been speaking about 

today also threaten New Mexico’s precious limited groundwater resources, the source of 90 percent of our clean drinking water in the 

State of New Mexico. Surface water bodies are often directly linked 

to ground water resources. Unregulated damaging surface dumping 

will therefore ultimately lead to pollution of the aquifers. We cannot and I ask your help in not allowing this to happen. 

The water beneath just one of those basins, the Salt Basin, has 

been estimated by the United States Geological Survey to contain 

as much as 57 million acre feet of water including 15 million acre 

feet that is potable. That could prove to be a vital and needed future water supply for the rapidly growing City of Las Cruces. 

Therefore, New Mexico also supports efforts to ensure that this bill 

preserves our traditional authority over ground water resources. 

Governor Richardson has fought to restore protections to New 

Mexico’s waters. In March, 2003, he filed comments with the EPA, 

petitioning that New Mexico’s closed basins and other imperiled 

waters remain protected under the Federal Clean Water Act. He 

also has strongly supported the Clean Water Authority Restoration 

Act of 2003, a precursor of the legislation before you today. 

The citizens of New Mexico depend on the protection of a clean 

environment and sustainable water supply. El agua es la vida. In 

New Mexico, we say, water is life, and water is life in New Mexico 

and the United States. 

Thank you, Mr. Chairman. I look forward to your questions. 

Mr. OBERSTAR. I thank you for your very thoughtful testimony 

and your well expressed understanding of the Clean Water Act as 

written and as administered over the years. 

You say whether you can float a boat on the water is an extremely limited view and go on to say there are summer months 

when you can’t float a boat down the mighty Rio Grande, and that 

is true of much of the arid West, that rivers simply dry up. But 

if you say, well, they have to be running all year long in order to 

be protected, then we won’t be able to protect waters. 

You correctly observe that the legislation simply restores protections, as you put it very well, in place for three decades. That is 

what we are trying to do, just restore the purpose of the Act to 

what it was before the Supreme Court legislated on this major 

water protection legislation. 

I love that you say we in the Southwest have no water to waste. 

That is so true. We have no water to waste anywhere frankly. 

I yield to the gentleman from Louisiana, Mr. Baker. 

Mr. BAKER. Thank you, Mr. Chairman. 

I want to make an observation that in all things, there is balance. I understand certainly your interest in preserving the quality 

of environmental assets for those who follow, and I strongly support that. Perhaps there is a difference in the manner in which we 

may choose to follow that. 

I think in the discussion of navigable waterway, adjacent wetlands thereto or isolated wetlands, we really in the discussion 

should just move past all that and say we want the Corps to have 

jurisdiction along with the EPA nationwide. Just make it simple. 

In fact, have all those legal hocus pocus from SWANCC on. I don’t 

23

go there, but I think in fairness of the philosophic discussion, we 

ought to at least say that is what we want to do. 

In the example previously cited by the Chairman before the recess, talking about the distribution of polychlorinated biphenyls on 

a roadway, the fact that occurred is illegal in itself because PCBs 

are prohibited chemicals or very constrained utilization. If you distribute that in any unsafe or unsound manner, the EPA has statutory authority to pursue, fine and, as necessary, take criminal actions against those who intentionally violate the environment. 

So I see there are two tracks. On one side, we can have a very 

well defined role for the EPA on all fronts to go after anything. If 

it is someone polluting your ground water in your home State, we 

ought to go after those folks. I don’t defend that at all, obviously. 

But, at the same time, there is a consequence to actions which 

would define South Mountain in Maricopa, Arizona, which I am 

going to enter the photograph in the record because I think it is 

such a great one. From 1993 to 2000, this, what is called a drainage area, carried water 5 times with 182 reported rainfall events 

for a total flow in over seven years of seven hours. Now this becomes a waterway, navigable waterway subject to the jurisdiction 

of the Corps. That is where I think the equities are not balanced. 

The consequence of that to a landowner is that whatever your intended utilization for that property can and most likely will be impaired by the findings of a 404 permitting process. Now if we were 

to reach the conclusion that that is in the social best interest of all 

parties affected, then we at least ought to have a provision that 

would enable the Federal Government to compensate that landowner whose right of use has been taken by the finding by the 

Corps that the rocks of Maricopa were a wetland. That is the balance we are trying to find here. 

Do those issues resonate with you or do you think that the adoption of the bill as currently proposed overwhelms any of those 

counterbalancing concerns? 

Mr. CURRY. Member and Mr. Chairman, I think the bill as it is 

proposed will provide necessary protections not only for the environment and the waters that we are concerned about, but I think 

it will provide necessary protections for the property owners that 

you speak of. 

I think in New Mexico, we are concerned many times about 

closed basins, and those closed basins often times have the potential to be used for illegal dumping of some sort or another. 

Mr. BAKER. On that point, let me ask as to your authority with 

the Department of Environment in your home State. What are you 

empowered to do when you see an action being taken that is 

against the public interest or any of the things you are concerned 

about? 

Somebody is playing with the drinking water. What are your authorities under State law to prohibit that action from taking place? 

Mr. CURRY. Mr. Chairman and Member, we are empowered by 

the State legislature to take necessary action to protect the health 

and the environment of New Mexico. 

But what we don’t want to run into and why we support this bill 

and why Governor Richardson supports this bill is to find clarity 

in what is being enforced upon, to find clarity in our State, like I 

24

said earlier, where we don’t have the ability to navigate down the 

Rio Grande, where we don’t have the ability to navigate down the 

arroyos of northern New Mexico and southern New Mexico but 

where we have situations where there is a point source discharge 

along those arroyos that may only flow for only 30 days out of the 

year. We have to have the ability to go in there and enforce in 

those areas even though certainly no boat can ever float down 

those arroyos. 

Mr. BAKER. Defining that property as a navigable waterway for 

the purposes of enforcement under the Clean Water Act is a separate and distinct issue from your regulatory authority to proceed in 

the public’s interest. When you couple State’s rights together with 

Federal environmental rights, there are very few things that can 

occur in this Country today that are detrimental to the environment for which there is not a civil or criminal penalty. That is the 

only point I am making. 

I don’t know that we need to adopt this particular language to 

resolve your concerns, but I thank you for your appearance, sir. 

Mr. CURRY. Okay, thank you. 

Mr. OBERSTAR. I thank the gentleman. 

The gentlewoman from California, Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

Sir, it is great to have you in this hearing. I listened to great interest as I was walking in, although late, to your remark on the 

Rio Grande. I was born and raised in Brownsville, Texas, and there 

were pictures in the Brownsville Herald of where a shoe would not 

fit into the river. So I understand from that vantage point. 

I am also very concerned some of the issues that most of the 

West is facing in regard to the drought, climate change and all of 

the issues that you are talking about. In the more arid parts of the 

Country, especially in New Mexico, there are many entire watersheds, the closed basins, if you will. They are very important resources for all of us, but they never connect to traditional navigable 

waters. 

Now, will this make it difficult if not impossible to prove a significant nexus to the waters based on the Kennedy test and the 

Agency’s new guidance? 

Would you talk about that, the water resources in New Mexico, 

and why are they protected and what is New Mexico done to protect them and where does the Federal Government fit in to help 

protect them? 

Mr. CURRY. Mr. Chairman and Member, in New Mexico, on the 

area of climate change, just as a note on that because I note that 

you mentioned that earlier, Governor Richardson set up a task 

force. The task force was made up of stakeholders from business, 

from oil and gas which is obviously big in our State, from the dairy 

industry, from people who are advocates for the environment. They 

came up with 69 recommendations, 67 of which were passed unanimously by a task force consisting of over 20 people. 

Some of these recommendations addressed issues like the clean 

car standards, clean tailpipe standards. Some of them talked about 

what we could do to increase our snow pack in northern New Mexico and make sure that we were able to continue to have that. So 

the climate change issue is very much aware, and we think that 

25

we are taking a very forward moving progress on that issue as far 

as what we can do in New Mexico to address it. 

When we look at navigable waters in New Mexico, we find very 

few, and that is why it is important that we don’t consider the waters of New Mexico which cannot be navigated to become second 

class waters. That is what we don’t want. 

That is why we support this bill because if this bill does not pass, 

then New Mexico will not only not have the complete ability to protect its waters like it has for the last 30 years. I believe that our 

waters will become second class waters just like a second class citizen. I don’t think that is good for the next generation or the seventh generation as we look forward. 

The Rio Grande is the river that most people who have never 

been to New Mexico think of. The Rio Grande at one time in our 

history of our State was a mile wide at the City of Albuquerque. 

Today, there are times like in Brownsville where the river is less 

than a yard wide for one reason or another. It was very navigable 

back in the early history of Albuquerque. It is not now. 

There is an occasion raft race down the Rio Grande, but that 

doesn’t mean that we shouldn’t protect it. We are protecting the silvery minnow in New Mexico. We are protecting the river for agricultural purposes in New Mexico, and it must be continued to be 

protected for the historical acequia uses in the State of New Mexico. 

The last thing I would say, Member, is that you talk about the 

shoe in Brownsville. I have had the opportunity to be a commercial 

balloon pilot, a hot air balloon pilot for 25 plus years in New Mexico. Often times, we had the opportunity to fly our craft into the 

Rio Grande, and we are happy to call it a splash and dash. Some 

days when there is no water flowing in the Rio Grande, we refer 

to it as a mud and thud. It certainly is not navigable at that point. 

A lot of times as you move up and down the Rio Grande, what 

you see are people on air boats moving along much as you see airboats in the Everglades. So we look to keep New Mexico’s waters 

from becoming second class citizens. 

Mrs. NAPOLITANO. What role would the Federal Government 

have in helping you protect them? 

Mr. CURRY. Passing this law would be the biggest role that I can 

tell you right now because with the Federal decisions, we have 

been left with the morass of uncertainty. 

Mrs. NAPOLITANO. Is there anything that would enlighten us? 

I chair the Subcommittee on Water and Power. I have a great 

concern about climate change, about pollution, if you will, because 

even though we may have enough water in the rivers and in our 

streams, if they are polluted they are going downstream and hurting somebody or going to endanger the ecosystem or hurt the fish. 

How are you protecting your streams from that happening? 

Mr. CURRY. Member and Mr. Chairman, I want to focus again 

back on the Rio Grande. We have 19 Native American pueblos 

along the Rio Grande in New Mexico. Some of those pueblos have 

attained the ability from the Federal Government to set their own 

water quality standards, and that has caused some economic concerns. 

26

There is a pueblo of Ysleta that sits south of Albuquerque. There 

is a pueblo of Sandia that sits north of Albuquerque. The pueblo 

if Ysleta back in the early nineties set its own standards for water 

quality, and the City of Albuquerque has to adhere to those standards. So in a very direct yet indirect way the Federal Government, 

by empowering the Native Americans in our State to set their own 

water quality standards has helped improve the water quality 

standards in New Mexico. 

The other thing that I would ask the Federal Government to continue to help us on: In the lower Rio Grande in New Mexico, we 

have a number of studies going on to remove and understand the 

salinity problems that exist in the lower Rio Grande in New Mexico 

before it passes over in to become a border river with the State of 

Texas in Chihuahua. So those two issues, the salinity issue in the 

lower Rio Grande is very important to the State of New Mexico. 

Mrs. NAPOLITANO. Thank you for your indulgence, Mr. Chair. 

Thank you, Mr. Curry. 

Mr. OBERSTAR. The gentleman from Pennsylvania, Mr. Carney. 

Mr. CARNEY. Thank you, Mr. Chairman. 

Thank you, Secretary Curry, for joining us today. 

Many of the opponents of the clean water protection say that 

they think that the protection of so-called isolated waters, non-navigable tributaries and many types of wetlands should be left up to 

each individual State. Often times, however, when States try to 

pass their own statutes or regulations, many of these efforts are 

vigorously resisted by polluters. 

We understand that the State of New Mexico has recently undergone such a contentious debate and won its case. Congratulations. 

Can you tell us more about that? 

Mr. CURRY. Yes, sir, Member and Mr. Chairman. Through what 

we have in the New Mexico, the Water Quality Control Commission, we went through an exercise where we essentially tried to decouple the State of New Mexico from the Federal standards. So we 

would have the opportunity so that we would have a better chance 

of having our own water quality standards that were separate from 

the confusion that existed at the Federal level. 

We were successful through the Water Quality Control Commission, and then those efforts were appealed to the State Court of Appeals. We prevailed. 

At this point, we are in the process of continuing to decouple in 

that area, and that will give us the authority to continue to do in 

New Mexico that which we lost in 2001 but what we had been 

doing for the 30 years, 3 decades, prior to that. It will give us the 

ability to continue to protect those rivers because of that court of 

appeals decision. We graciously accept your congratulations. 

Mr. CARNEY. Thank you. No further questions, Mr. Chairman. 

Mr. OBERSTAR. Mr. Arcuri, no further questions? 

Mr. Gilchrest. 

Mr. GILCHREST. Thank you, Mr. Chairman. 

I guess I would ask the same question I asked the Governor of 

Montana. Do you see any problems with the Chairman’s legislation 

which will essentially in my judgment, and you can correct me if 

I am wrong on this, keep intact the jurisdiction of the Corps and 

EPA for the Clean Water Act over waters of the United States, not 

27

change essentially the legal precedents that have evolved over the 

last so many decades but make it clearer that waters of the United 

States include tidal waters, non-tidal waters, ephemeral streams, 

those kinds of things for a myriad of purposes: flood storage, erosion control, sediment control, nutrient management and those 

kinds of things? 

Do you see or foresee any problem with taking that term, navigable waters, out of the Clean Water Act and leaving intact essentially what I think you just described as protecting waters of the 

United States? 

Mr. CURRY. Member and Mr. Chairman, I would say no. We are 

concerned in New Mexico about ephemeral waters because we have 

so many areas and so many sources in New Mexico that run intermittently. We want to have the ability to protect those even though 

they are not navigable. Just on that basis alone, we feel confident 

in supporting this legislation. 

Mr. GILCHREST. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. I thank the gentleman. 

Again, the gentleman from Maryland has reaffirmed what our 

witness today, Mr. Curry, has said and what I have—how should 

I say—elucidated on numerous occasions and in my opening remarks today, and that is the purpose of the Clean Water Act was 

stated very clearly in the opening paragraph’s definition of terms 

in 1972: ‘‘to restore and maintain the chemical, physical and biological integrity of the waters of the United States.’’ The Act has 

been interpreted in that broad sense for 30 years. 

The Supreme Court, in an activist decision, this group of justices 

came in saying, well, we don’t want an activist court, but then they 

became one. They overturned the meaning of the Congress in this 

legislation. They said, no, there has to be a connection to navigability, but for 30 years the Act has been interpreted in this broad 

sense of the 1972 Act, the waters of the United States. 

Deleting the term, navigable, in the body of the Act simply reaffirms 30 years of practice by the Corps of Engineers and the EPA 

and the States and all their subdivisions in administering this Act. 

That is purely and simply what I attempt to do with this legislation, what all the co-sponsors want done and what so many others 

throughout the Country want to accomplish. 

To make it clear that we are not expanding this authority, we 

included Section 6, the savings clause that deals with, that restates 

all the limitations on the Act that were enacted in 1972. 

Now, your statement on the second or third page of your testimony, I think, is so illustrative of the importance of this broad interpretation, and that is your reference to the Salt Basin estimated 

to contain as much as 57 million acre feet including 15 million acre 

feet potable. But if the aquifer, you say, is allowed to be polluted 

by surface dumping, its benefits for future New Mexicans will be 

severely curtailed. 

Now that dumping could come from an intermittent stream 

above that basin or in another State that only a few weeks or a 

few months of the year is an operating body of water in which you 

could float a boat, a canoe maybe or pirogue if you are in LouVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
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isiana. Yet, toxics dumped into that water could get into this aquifer and poison it. Isn’t that what we are trying to get at? 

Isn’t that what the purpose of the 1972 Act was to give the Federal Government, give the State Governments authority to prevent 

such pollution? 

Mr. CURRY. Mr. Chairman, I concur completely. I can think of an 

example if you would bear with me. 

In Albuquerque, about three years ago, there was an oil spill in 

the south valley of Albuquerque. It was a relatively small spill, several thousand gallons, and it came from a used oil company. It ran 

down, and it was within a mile of the Rio Grande in Albuquerque. 

It ran down a concrete ditch. When the concrete ditch ended, it ran 

into a dry arroyo, a dry earthen ditch. 

We looked around, and we were concerned that we didn’t have 

the authority to go in there with the proper enforcement activity 

to get after the particular polluter involved in this. We ended up 

using some other acts within our State’s ability to get in there to 

ensure that we got it cleaned up. There was, if I remember, a small 

penalty, but our concern was getting it cleaned up so that it would 

not go from the arroyo into the Rio Grande. That is an example of 

what you speak, of what we are trying to do. 

Mr. OBERSTAR. I greatly appreciate your thoughtful and wise testimony and the experience of your State. We particularly appreciate the views of the governors who represent those arid regions 

of the Nation for whom water is so precious and whose protection 

is so critical. Thank you very much for your contribution today. 

Our next panel includes Professor Robert Percival, the Robert F. 

Stanton Professor of Law from the University of Maryland, Professor Kim Diana Connolly, University of South Carolina School of 

Law, and Mr. Reed Hopper of the Pacific Legal Foundation. 

We welcome you all and thank you for being with us today and 

for your contribution. I have read your testimony, respective testimonies previously, and I am very impressed with your thoughtful 

presentations. 

Professor Percival, we will begin with you. 

TESTIMONY OF ROBERT PERCIVAL, ROBERT F. STANTON PROFESSOR OF LAW AND DIRECTOR, ENVIRONMENTAL LAW 

PROGRAM, UNIVERSITY OF MARYLAND; KIM DIANA 

CONNOLLY, ASSOCIATE PROFESSOR OF LAW, DEPARTMENT 

OF CLINICAL LEGAL STUDIES, UNIVERSITY OF SOUTH CAROLINA SCHOOL OF LAW; M. REED HOPPER, PRINCIPAL ATTORNEY, PACIFIC LEGAL FOUNDATION 

Mr. PERCIVAL. Chairman Oberstar, Congressman Baker and 

Members of the Committee, thank you for inviting me to testify 

today. 

I am Robert Percival, the Robert Stanton Professor of Law and 

Director of the Environmental Law program at the University of 

Maryland School of Law. 

The topic of this hearing is extremely important. The U.S. has 

been a world leader in environmental law. During the 1970s and 

1980s with overwhelming bipartisan support, Congress enacted 

landmark legislation to protect the environment. Due to the foresight of those Congresses, our water and air are much cleaner and 

29

our citizens are safer and healthier than in countries that only belatedly developed environmental laws. 

Yet now, 35 years after enactment of the Federal Water Pollution 

Control Act, we find some of the most fundamental premises of our 

environmental laws under assault in the courts. The sharply divided Supreme Court has created confusing new loopholes in the 

vital legal infrastructure that protects our environment, and it is 

essential that Congress repair our legal safety net. 

There are four basic points that are covered more extensively in 

my written testimony that I would like to emphasize in my brief 

oral statement today. 

First, Congress properly recognized in 1972 that a comprehensive 

approach would be necessary to protect the Nation’s water. Thus, 

it intended to exercise the fullest extent of its constitutional powers 

when it adopted legislation requiring permits for all discharges of 

pollutants or dredged or filled material that would degrade the Nation’s waters. 

Second, initially, the courts—and for 30 years nearly—properly 

recognized that Congress had acted wisely when it entrusted the 

U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency with the responsibility to implement this program. 

Thus, in its 1985 Riverside Bayview decision, the Supreme Court 

unanimously deferred to these agencies in upholding the broad application of the Clean Water Act to wetlands not contiguous to open 

waters. 

Third, as a result of two sharply divided Supreme Court decisions, one 5-4 and the other 4-1-4, SWANCC in 2001 and Rapanos 

in 2006, every one now agrees that confusion reigns over the scope 

of Federal jurisdiction to protect the Nation’s waters. This confusion benefits no one and can only be dispelled by the adoption of 

new legislation clarifying the scope of the Act. 

Fourth, Congress has ample constitutional authority to restore 

the Act to its initial premises. 

As a result of the SWANCC and Rapanos decisions, the most 

fundamental question one asks about any regulatory statute—to 

what does it apply—is in a state of confusion today. This confusion 

threatens to undermine not only the particular program challenged 

in those cases, the Section 404 program to protect wetlands, but 

also other programs that rely on the same jurisdictional term, waters of the United States. These include the Section 402 permit program for point source discharges of water pollutants and the Act’s 

oil spill prevention program. 

Rapanos has produced the bizarre result that the law currently 

defining the scope of Federal jurisdiction reflects the views of a single Justice that were rejected by each of the eight other Justices. 

Moreover, no one seems to know how to apply the significant nexus 

test created by Justice Kennedy in this case. This has spawned 

new legal challenges and enormous uncertainty. 

In light of the enormous confusion created by the Court’s 4-1-4 

split in Rapanos, Congress should amend the Act to clarify the 

scope of Federal jurisdiction. The simplest approach would be for 

Congress to return to the scope of Federal jurisdiction under the 

Clean Water Act which prevailed for 30 years prior to SWANCC 

and Rapanos. 

30

This approach should command bipartisan support because it 

would endorse the very interpretation of the waters of the United 

States so ably advanced by the Bush Administration’s Solicitor 

General in the Rapanos cases. This approach would also have the 

virtue of ensuring that agencies need not revise their regulations 

that predate SWANCC and Rapanos. It would promote legal stability by retaining long-held interpretations well known to agency 

officials and the private Bar. 

When I was a law clerk to Justice White, who was the author 

of the unanimous decision in Riverside Bayview, he once said to me 

he couldn’t understand why some justices believe that what Noah 

Webster had in his mind when he came out with this first dictionary in the 19th Century was more important for statutory interpretation than what was in the minds of the Members of Congress who passed the actual legislation. I suggest that those are 

very wise words. 

When Justice Scalia responded to the criticism that his extreme 

view in the Rapanos case would be very damaging to the environment, he essentially said: So what? It is not my fault. Congress did 

not speak clearly enough. 

I urge you to take this opportunity to speak clearly by amending 

the Act to restore it to the long-held interpretation prior to these 

two decisions. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Thank you for those very enlightening remarks 

and for that explicit insight into the mind of Justice Scalia. Thank 

you. 

Professor Connolly. 

Ms. CONNOLLY. Mr. Chairman, Congressman Baker, distinguished Members, good afternoon. It is an honor and privilege to 

be here today. 

My ultimate message will boil down to one important truth. Congress must take immediate action and enact legislative language to 

straighten out the mess that regulating wetlands and other waters 

in the United States has become in recent years. 

You can read more about my background in my written submission, but it might be interesting to know that I have come to this 

conclusion after years of work including practice here in Washington, D.C., representing the regulated community as well as 

scholarly work. 

Your staff has prepared an excellent background paper, and Professor Percival has provided coverage of crucial points. So I am not 

going to go over these remarks about the current state of the law. 

I do want to make a couple of other important points. 

Wetlands and other waters differ depending on locations due to 

a variety of factors including soil differences, topography, climate, 

hydrology, water chemistry. Yet, regardless of their differing nature, scientists have demonstrated that adjacent wetlands, tributaries of virtually of all types and headwaters are inseparably 

bound up with other waters. Through their connectivity, they are 

essential to the maintenance of the quality of our Nation’s waters. 

I believe that in 1972 and again in 1977, Members of Congress 

did their best to set forth a clear path for what the Clean Water 

Act should cover in terms of navigable waters. As I argued on beVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
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half of a bipartisan group of current and former Members of Congress in a Supreme Court brief in the Rapanos case that I was 

privileged to co-author last year, it is clear the intent of Congress 

when passing the Clean Water Act was to embrace the broadest 

possible definition of navigable waters when it defined that term 

as all waters of the United States. 

You have read in your staff-prepared memo about the Riverside 

Bayview Homes case. You have read and heard today about the 

Solid Waste Agency case. The subsequent legal interpretations of 

the 2001 Solid Waste Agency decision by various courts did find it 

to be very narrow in most cases. 

But the agencies gave mixed signals as to how they were going 

to proceed in dealing with the areas of jurisdiction. GAO studies 

demonstrated there was confusion among Corps staff. Stakeholders 

on both sides continued to battle in interpreting the geographic jurisdiction. 

During these years, the first and second Clean Water Authority 

Restoration Acts were introduced in Congress, and some good 

progress was made, but perhaps because of the then leadership, 

those legislative efforts did not receive the attention that I think 

they deserved. 

But it has become more important. The United States Supreme 

Court got involved again, leading to the most recent set of opinions 

that we have heard about today in the consolidated Rapanos and 

Carabell cases. These are very, very academically interesting cases. 

They leave stakeholders, except for law professors who like to write 

about these kinds of things, without much comfort. 

Now we have got guidance. We have got this set of guidance that 

the Corps and EPA has put out almost a year later to interpret 

how the term, navigable waters, should be read in the field, but I 

use the term guidance loosely. It does not read as a document I 

would find very guiding if I were an EPA or Corps employee trying 

to make a particularized decision in the field with respect to a particularized permit application. It leaves more questions unanswered than answered. 

As the frontline regulator, the Corps processes close to 90,000 

permit applications and 100,000 jurisdictional determinations a 

year. Significantly, less than 1 percent of permit applications are 

denied. So the odds are if you apply for a permit that you want to 

undertake development in waters of the United States, you are 

likely to receive such a permit. Admittedly, it will require some investment of resources, take some time, but at the end of the day 

you are likely to get your permit and be allowed to undertake activities. 

Recent research that I did and was published in an article in the 

Environmental Law Reporter shows customer service surveys filled 

out by thousands of permit applicants after undertaking the process of going through this Corps process show that they are happy, 

if not delighted, with the permitting process. Though some applicants express concern about the time the permit process requires, 

a few others have some other complaints, an impressive percentage 

give the Corps perfect marks in their overall ranking of the permitting experience. 

32

So, contentment with the current system? Yes, but it is my belief 

that Congress must act, must amend the Clean Water Act now. 

I personally believe that the bill before this Committee could 

have gone farther. I think that it might have wanted to deal with 

the so-called Tulloch Rule interpretations of the term, discharge, 

maybe even mitigation, but I think it is an important step. 

I am aware that there are some who question constitutionality 

of the pending legislation. I will not belabor the point here because 

of time constraints but simply state it is my belief that this proposed legislation is constitutional. 

Finally, in closing, I want to reiterate something I wrote to conclude a recent piece published in a book of essays. My essay was 

looking into whether there could be a happy ending in the jurisdictional debates. I wrote there: It seems to be precisely some new 

magic words from Congress that are needed to rectify the situation. 

H.R. 2421 contains appropriate words to bring us closer to happily 

ever after when it comes to our Nation’s waters. 

Thank you. 

Mr. OBERSTAR. Thank you very much for your thoughtful and 

well expressed testimony. 

Mr. Hopper, welcome and you are recognized. 

Mr. HOPPER. Thank you, Mr. Chairman. 

I think that the best indicator of Congressional intent is to be 

found in the language actually adopted by Congress. After all, this 

is what the Federal officials have to work with, the regulated public and the courts themselves. 

As you have noted, Mr. Chairman, the broad statement of the objective was clear. The objective of this Act indicated, as you mentioned in the first line of the Clean Water Act, it was to restore and 

maintain the integrity of the Nation’s waters. 

However, in the next line, Congress adopted this language: In 

order to achieve this objective, consistent with the provisions of the 

Act, the national goal is to eliminate discharges into the navigable 

waters. 

The other provisions referred to here of Section 404 and other 

provisions of the Act used these terms, navigable waters and waters of the United States, which had been employed in previous 

acts and for 150 years did have a settled meaning, meaning actual 

navigable channels. These same terms were employed in the Clean 

Water Act without being redefined. 

In addition, on the same first page of the Act, Congress indicated 

another objective which was to recognize as a policy of Congress 

that it is the primary responsibility and rights of States to prevent, 

reduce and eliminate pollution and plan the development and use 

of land and water resources. 

Still, for 30 years, no consistent jurisdictional standard was applied by the Corps. This was proven in a GAO audit in 2004 in 

which the GAO reported and demonstrated that if you take any 

three officials from a Corps district office, you will get three different interpretations as to the jurisdiction of the Corps. 

In ensuing years, we had the development of the Supreme Court 

decision, Riverside Bayview, which indicated a broad authority 

under the Clean Water Act followed by SWANCC which implied a 

33

narrow authority under the Clean Water Act. We had split decisions. 

So to clarify the Federal jurisdiction under the Clean Water Act, 

we brought the case of Rapanos to the United States Supreme 

Court. We did not get the clarity we had hoped. As is clear now, 

we have a 4-1-4 split. 

We have the dissent, four justices indicating that anything goes. 

All water should be subject to Federal control. We have Justice 

Kennedy in his lone concurrence, providing for a jurisdictional 

standard under his significant nexus test. Then we have the four 

in the plurality who suggest that the jurisdiction should be limited 

to relatively permanent traditional standard type of streams, lakes 

and rivers and abutting wetlands that are inseparably bound up. 

There has been a three-fold response on the Federal level. The 

courts now are split again. The Seventh Circuit in the Gerke case 

and the First Circuit in the Johnson case have come at loggerheads 

as to how to understand or interpret the 4-1-4 split in Rapanos. We 

have the Seventh Circuit that says that the Kennedy approach is 

controlling along with the Ninth Circuit. We have the First Circuit 

saying that Federal jurisdiction could be established under either 

the Scalia plurality or the Kennedy significant nexus test. 

Then we have, as was already mentioned, the reference to the 

new agency guidance, which is anything but. It means, I think, 

business as usual. What the Corps will not regulate categorically, 

it will regulate under the significant nexus standard. We think 

that this is a pro forma test because the Corps of Engineers is already on record as arguing that all wetlands and indeed all waters 

are significant. 

That brings us to the current state of affairs where we have the 

proposal here of the Clean Water Restoration Act. The language in 

this Act suggests that Congress would exercise authority over all 

intrastate waters and with the exception of the farm exemptions 

that are mentioned, it would intrude, I think, in an unprecedented 

way into States’ rights. 

I think it far exceeds any reasonable interpretation of the language that was actually adopted in the Clean Water Act. I think 

it does exceed the current regulations, and I think in addition it 

raises constitutional questions. Under current Supreme Court commerce clause analysis, it is unlikely that this broad reach would be 

sustained. 

Thank you. 

Mr. OBERSTAR. Thank you very much, Mr. Hopper, for being with 

us and for a contrasting view on this subject. I know you argued 

before the Supreme Court on the SWANCC case. Am I correct? 

Mr. HOPPER. Yes, that is correct. 

Mr. OBERSTAR. You do refer in your testimony and you repeated 

a moment ago to the intradistrict inconsistencies and the interdistrict disagreements, but most of those were post-SWANCC case 

where there was a great deal of confusion sowed. 

Not to say that the Corps in all of its districts throughout the 

Country has had a consistency, a slavish sort of consistency to interpretation of the Clean Water Act. To be sure, there are differences in the way the Act was applied. Those differences, in my 

experience sitting in hearings in this Committee over 33 years now, 

34

are because of differing conditions within the various Corps districts. 

But in your view of consistent application of the Clean Water 

Act, does the body of water have to be navigable? That is one on 

which a boat can be operated even down to a canoe? 

Mr. HOPPER. Are you referring to what the Supreme Court has 

now decided under the Rapanos decision? 

Mr. OBERSTAR. Your view of the Act. You have read the Clean 

Water Act. You argued the case. You know it. Tell me what your 

view is, not the Supreme Court’s views, your view. 

Mr. HOPPER. Well, we thought that the Supreme Court was correct in the SWANCC decision when the Court looked at the history 

of the Act, looked at the legislative structure and the language of 

the Act and concluded that Congress did not intend to exercise anything more than its power over navigation. We think that was a 

correct reading of the Act as written. 

However, the Supreme Court has come to a different conclusion 

under the Rapanos decision. Even the plurality has backed off of 

SWANCC and given a broader reading than appeared to occur with 

the SWANCC decision. 

Mr. OBERSTAR. You would not insist on navigability. That is actually assuring that the smallest water conveyance would have to 

operate on the water in order for authority to be regulated. 

Mr. HOPPER. That is correct. I would not insist on that, and I 

don’t think that the Supreme Court now does under any reading 

of the Rapanos decision. 

Mr. OBERSTAR. I have read so much in the aftermath of the Supreme Court decisions, so much commentary about the Act and 

how it has been interpreted before I crafted the legislation pending 

before us. I marvel at various commentators’ view of what Congress intended. 

First of all, there is the very plain language of the Act. Secondly, 

there is the very plain application of that Act over a period of 25, 

27 years until the SWANCC case. How the Court could have gotten 

so far off base is a puzzlement to me. 

I sat right here in this room. We negotiated for 11 months with 

our Senate counterparts on the provisions of the Clean Water Act. 

It was very clear to us as staff and then to our principals, the 

Members of the House and Senate, that they wanted a departure 

from the past, from the Federal Water Pollution Control Act of 

1956, 1961 and subsequent, that clearly it wasn’t doing the job. We 

weren’t getting at the problem. 

You had to deal with watersheds. You had to go to the source. 

You had to go to protect particularly the wetlands, the marshes, 

the peat bogs which are the filtering agents, the coastal wetlands 

that are the buffering agents against storms to give this Act the 

broadest authority to clean up our waters. 

The term, navigable, stayed in the Act in various places because 

we were recycling the 1899 Rivers and Harbors Act or also known 

as the Refuse Act. Thirty years of practice ought to mean something, but apparently it didn’t for that first court case. 

Mr. HOPPER. You do recall, Mr. Chairman, that in SWANCC the 

Supreme Court pointed out that in 1974, two years after the passage of the Federal Water Pollution Control Act, that the Court inVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
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terpreted the term, navigable waters and waters of the United 

States, to mean traditional navigable waters and said that the 

Corps got it right then, the correct understanding of the intent of 

Congress. 

I would differ with you about this so-called 30 years of consistent 

application. The fact is that the Corps has never defined the word, 

tributary. This was a bone of contention in the Rapanos case. This 

was a free-wheeling definition, ever changing. 

Originally, the Corps just disclaimed any jurisdiction over ditches 

and the like. Then now suddenly only in the litigation in the 

Rapanos case, for the first time, did we hear the Government arguing that navigable waters and waters of the United States meant 

anywhere water flows regardless of its impact on downstream navigable waters. That was not a 27 or 30 year consistent application 

or interpretation of the law. That was ad hoc. 

Mr. OBERSTAR. You are right. Initially, the Corps didn’t quite 

know what to do with this new authority. They were puzzled about 

what to do with the much broader authority the Congress intended 

for them, and they stumbled around. 

Then they published a set of regulations on Section 404 which is 

two paragraphs, and they produced 34 pages of regulation in the 

Federal Register which one of my colleagues called the Miracle of 

the Loaves and Fishes, the multiplication of terms, but the Act was 

implemented. 

Now, Professor Percival, you say and rightly so that more than 

98 percent of the Nation’s waters are not navigable and, in fact, the 

quality of navigable waters is significantly affected by pollution entering their non-navigable tributaries. Can you protect waters of 

the United States without having a broad interpretation? 

Mr. PERCIVAL. No, absolutely not, and that is why Congress intended to be as comprehensive as possible. 

I would just commend to the Committee for historical purposes 

the excellent article written by Lance Wood who has been legal 

counsel to the Corps for all these years, that was published. It is 

cited in footnote 31 of my testimony and was published in the Environmental Law Reporter in 2004. 

He specifically responds to what he deems the misguided notion 

that that original 1974 interpretation by the Court should carry 

any weight at all, given that they were doing precisely what you 

just indicated that they were doing. It was their first cut, and they 

didn’t really think about it very much. 

It is now absolutely clear that unless you have a broad interpretation of the jurisdictional scope of the Clean Water Act, it is not 

going to accomplish what Congress intended because polluters will 

simply be able to move further upstream, dump their pollutants 

and escape all Federal jurisdiction. 

Mr. OBERSTAR. Thank you. 

What this legislation is turning into is something I didn’t intend 

and didn’t foresee—maybe I should have—that it was going to unleash a great redebate over the Clean Water Act. That is a good 

thing. That is a healthy thing. 

Before I go on to Mr. Baker, let me ask. From the standpoint of 

the Constitution, is the commerce clause authority of the Congress 

limited to traditionally navigable waters, Mr. Hopper? 

36

Mr. HOPPER. No, I think it is clear that it is not. Under the recent Supreme Court decisions of Lopez and Morrison, the Court 

has adopted a standard whereby commerce clause jurisdiction can 

be established if the activity that is regulated substantially affects 

a traditional navigable water, and so I think that is the standard 

now. 

I do not think that the bill that is proposed would pass muster 

under those standards, but you are correct to say it is not limited 

to channels. 

Mr. OBERSTAR. Thank you. 

Professor Connolly? 

Ms. CONNOLLY. I believe that the bill as proposed would pass 

muster. I think that it is clear that when you look at the jurisprudence of the commerce clause, particularly in the environmental 

setting, there hasn’t been a Court decision that has found that 

there has been overreaching. 

I think that what you have done in the bill is very clearly set 

forth that the tests that currently exist in the constitutionality 

under the commerce clause and other sections of the Constitution 

that are impacted by this are met by this standard and that Congress clearly has the authority to regulate activities in waters 

under the Constitution. 

Mr. OBERSTAR. Professor Percival? 

Mr. PERCIVAL. I would just emphasize that even Justice 

Rehnquist, who is the architect of the Court’s new jurisprudence 

limiting Congressional power in the commerce clause as far back 

as 1979, conceded in the Kaiser Aetna case that Congressional authority over the waters of this Nation does not depend on a 

stream’s navigability, that if you are really trying to protect the 

waters of the United States, Congress has very broad powers. 

I would just add that it is certain that this bill could not be unconstitutional because your objective is simply to extend Federal 

authority to the limit of Congress’ powers, so it is almost a tautology. Congress is not saying that we are going to exceed our constitutional powers. It is just that you are going to give the Corps 

and EPA as broad authority as is possible under the Constitution, 

and it is undoubtedly the case that the Corps’ longstanding regulations would satisfy those constitutional tests even under the 

Court’s current constitutional jurisprudence. 

Mr. OBERSTAR. Thank you very much. 

Mr. Baker. 

Mr. BAKER. Thank you, Mr. Chairman. 

For the sake of defending the Court’s honor, I want to revisit just 

briefly judicial and regulatory history on the matter, Professor, and 

ask your comment as to where you think I might have missed it. 

In the case of the 1972 amendments, I will refer to as the Act, 

when you look to the Act and as to the definition of navigable waters, it simply states the waters of the United States including the 

territorial seas and there is no further clarification at that point. 

In looking to legislative guidance in the matter, I read with interest the Floor remarks of Senator Muskie, a Democrat from 

Maine, who made the following statement, and I read an excerpt 

acknowledging that. 

37

‘‘One matter of importance throughout the legislation is the 

meaning of the term, navigable waters of the United States The 

conference agreement does not define the term. The conferees fully 

intend the term, navigable waters, be given the broadest possible 

interpretation unencumbered by agency determinations which have 

been made or may be made for administrative purpose.’’

Everybody gets excited when they hear that, but they have got 

to read the next line. That statement is made in the context of the 

debate forum in which they were in. At that time, there were navigable waters not subject to jurisdictional claim. 

‘‘Based on the history of consideration of this legislation, it is obvious that its provisions and the extent of application should be 

construed broadly. It is intended the term, navigable waters, include all water bodies such as lakes, streams and rivers regarded 

as public navigable waters in law which are navigable in fact.’’

So the Senator made a statement which, to me, makes clear that 

in the context of the regulatory regime in 1972, there were in fact 

navigable waters not subject to the Corps’ jurisdiction, and he was 

making a statement of clarity that the Clean Water Act was to extend that jurisdictional reach to all navigable waters at that time. 

We go on. Pursuant to the actions of the Congress in the adoption of the 1972 Act, the EPA and the Corps then proceeded to take 

two differing approaches in interpreting the legislative direction. 

The EPA navigable waters definition was much broader. I won’t 

read that. I will go on for time’s sake. 

The Corps, on the other hand, rejected the EPA’s broader interpretation and viewed the Clean Water Act as requiring it to assert 

jurisdiction over all the traditional navigable waters including 

those traditional navigable waters that it had previously declined 

to regulate. 

That seems to legitimate the Senator’s view that expanding the 

jurisdiction was, in essence, expanding it to navigable waterways, 

not to, at this point, isolated wetlands. We get to that down the 

road. 

The National Resources Defense Council then, in response to the 

Corps’ definition in 1975, filed in district court a D.C. action which 

the Court then ordered the Corps to develop regulations clearly recognizing the regulatory mandate of the Water Act. It did not specify what that action was, but it said do better than where you are. 

It took the Corps a while, until 1977, before the final rule was 

issued. By that time, the EPA had taken additional aggressive actions through regulation expanding and continuing the inconsistencies between the Corps and the EPA because the Corps could not 

catch up to the EPA because of the slowness of their rule promulgation. 

In 1985, the Court, pursuant to Riverside Bayview Homes case, 

seemed to give a victory back to the EPA, requiring wetlands regulation but that directly abutted open navigable waters consistent 

with the Clean Water Act. So we still have at the root of the definition as of the Riverside case a basement using navigable waters 

but extending the Clean Water Act reach now to wetlands abutting 

a navigable waterway or a distributary to that waterway. 

SWANCC comes along. For those who have not—I think for purposes of record—had the delightful time sitting down, reading that 

38

a page at a time should know that this was a gravel strip mine 

which had trenches left by the mining that resulted in the formation of seasonal ponds that were from a tenth of an acre to several 

acres in size on which migratory birds would nest in the season. 

The Supreme Court concluded in that case that the Corps had 

extended beyond its jurisdiction in enforcing the migratory bird 

rule in this instance. After evaluating the plain meaning of the 

statute and the contemporaneous interpretations of the Corps as 

well as its own precedent, the Court found the migratory bird rule 

to exceed the Corps’ jurisdiction over the plain language of the 

CWA. The CWA grants jurisdiction only over navigable waters, so 

we get that same repeat language. 

What I am trying to establish for the record is that this Court 

did not wake up after drinking bad water and come up with this 

navigable waters idea. It started from the Floor statements of Senators during the course of legislative consideration and is replete 

with repetitive explanation through the jurisprudential record. 

Then we move on to Rapanos, and even there we find that the 

regulation of wetlands with a continuous surface connection to a 

tributary to a navigable water body. We still can’t get away from 

it. 

Now I am not a purist when it comes to legislative construction. 

The goal here is to provide enhanced regulatory authority for the 

Clean Water Act over all land, all waters anywhere. It is my reading of it that if we were to have a rainstorm this afternoon and a 

few inches of water would accumulate on top of that very expensive 

visitors center, that that would classify it, at least for the purposes 

of this activity, as a wetland subject to jurisdiction claim. 

Do you see in the history that I have recited to you an inconsistency in the defense of navigable waters as a basic building block 

through which the Court, District and Supreme, have always 

looked at the critical right for extension of the provision of CWA 

authority? 

Mr. PERCIVAL. I think you have done a very good job, but I don’t 

think you have given the complete picture. You have done an excellent job of pointing out why navigability has caused so much confusion over time. 

Mr. BAKER. I wish you would stop there. That would be better, 

but go ahead. 

Mr. PERCIVAL. It is important. It is important to bear in mind, 

though, that what Congress did do in 1972 is it defined navigable 

waters to mean waters of the United States, a term of art whose 

meaning was to reflect the desire of Congress to have it as comprehensive as possible. 

Mr. BAKER. But that is all they said. 

Mr. PERCIVAL. Right. 

Mr. BAKER. They said navigable waters, and that is it. 

Mr. PERCIVAL. That is all they said in the text of the Act. 

Now I think the Supreme Court got it exactly right in Riverside 

Bayview when it looked carefully at the legislative history, carefully at the debates that you looked at and noted that the purpose 

of Congress was to do more than just protect navigability. It was 

also to protect water quality and that required deference to the 

39

Corps’ judgment that you also needed to include wetlands that had 

hydrologic impacts on the quality of traditionally navigable waters. 

Mr. BAKER. That was a provision in the holding which said you 

could literally walk from waste-deep wetlands directly to the navigable waterway, but the holding was because of its association with 

a navigable waterway, not that it was principally a wetlands. It 

was wetlands with a navigable waterway that led them to their 

conclusion. Is that wrong? 

Mr. PERCIVAL. Well, the Court also, Justice White in his opinion 

said that Federal jurisdiction over adjacent wetlands was not dependent on the flow of water between wetlands and traditionally 

navigable waters but rather the fact that in the judgment of the 

Corps, they had an impact on those other waters. 

Mr. BAKER. They shared certain hydrologic conditions. 

Mr. PERCIVAL. Here is his quote: ‘‘The wetlands adjacent to 

lakes, rivers, streams and other bodies of water may function as integral parts of the aquatic environment even when the moisture 

created in the wetlands does not find its source in the adjacent bodies of water.’’

Now, just one final point and that would be the visitors center. 

It is not a wetland. It doesn’t meet the Corps definition of wetlands. There is no conceivable way, no matter how hard it rains 

here, that Federal jurisdiction would be extended to the visitors 

center. 

Mr. BAKER. But that definition is not statutory and it is really 

unclear if we were to go to the record and look at what the Corps 

has declared as a navigable waterway. 

Mr. Chairman, I am going to enter this one into the record. I will 

get the source for it. I just happen to have it in my file. 

Mr. OBERSTAR. Entered into the record without objection. 

Mr. BAKER. I thank you, Mr. Chairman. 

The title says Regulated Navigable Waters in Elk Grove, California, and it is just this little trench created by the farmer which 

is fenced on either end. So it would be a very short haul for a commerce operation. I can’t remember off the top, but I know it is less 

than five inches a year annual rainfall. That is already a wetlands. 

That is the operational concern that I have, sir, is not that we 

shouldn’t protect aggressively all environmental resources, but the 

unintended consequence of a bureaucracy let loose with the authority of law to back them will take private property rights without 

compensation almost at will. I know that is a reach for some who 

are strongly advocates of this position, but I think it is one equally 

strongly held by those who have been the recipient of these 

judgmental determinations. 

I thank you for your courtesy. I have gone on too long. Thank 

you. 

Mr. OBERSTAR. No. The gentleman has time. 

Mr. BAKER. I am fine. What I would like to do, Mr. Chairman, 

is I will put that little diatribe into a memo and deliver it to the 

Professor for further analysis. 

Mr. OBERSTAR. That was a very thoughtful legal analysis that 

falls somewhat short, but I would instruct the Clerk to print the 

gentleman’s remarks upside down. It was too good for the record. 

[Laughter.] 

40

Mr. BAKER. I thank the Chairman for his kind comments. Living 

in Louisiana means you are upside down. So I take no offense. 

Mr. OBERSTAR. Well, my wife is from Louisiana. 

Mr. BAKER. I strike that from the record then. 

[Laughter.] 

Mr. OBERSTAR. And the Mississippi rises in my district or just 

outside my district and finishes in her town. 

Professor Connolly. 

Ms. CONNOLLY. Just I would commend to you the brief that I had 

the opportunity to co-author that goes into the legislative history. 

In addition to some of the quotes that you have, there are some additional quotes that you might want to look at as you are considering the legislative history here. 

Mr. OBERSTAR. It was my intention, without objection, to include 

in the Committee record Anchoring the Clean Water Act of the Environmental Law Institute. I think it is a very cogent document. 

Mr. Hopper, did you have comments on what Mr. Baker said? 

Mr. HOPPER. Yes, I did if I could just make a comment on Mr. 

Baker’s comments. 

I agree with Professor Percival that water on the roof is not a 

wetland, but it doesn’t need to be a wetland in order to be regulated, and that is the key point. We have been engaging in a long 

debate about how clear the language of the statute is, and what is 

clear about the bill is that it applies to all intrastate and interstate 

waters, all waters. It is just as clear as the Chairman believes that 

navigable waters and waters of the United States was in 1972. 

I would also remind Professor Percival that it is a matter of established judicial canon of statutory interpretation that a contemporaneous interpretation is given more weight than a subsequent 

interpretation, and so therefore the 1974 interpretation of the 

Clean Water Act by the Corps is not to be set aside so easily. It 

was contemporaneous. 

Mr. BAKER. If I may, Mr. Chairman. 

Mr. OBERSTAR. Certainly. 

Mr. BAKER. Just as a quick follow-up, let me see if I understand 

your constrained definition of isolated wetland. 

Were it in fact, for example, where a farm tractor cuts across a 

field, where the field itself prior to the crossing was not deemed 

wetlands by the Corps, you have the residual tire marks that subsequently fill with water. There are cases where those marks or 

that area has been defined as wetlands. Do you think that jurisdictional reach is appropriate or inappropriate? 

Mr. HOPPER. Oh, it is inappropriate. I think that you are right. 

We have seen some bizarre interpretations of what constitutes of 

what constitutes a wetland. 

Mr. BAKER. Well, but there may be some middle ground here. I 

am not opposed to protection of waters, but what I am suggesting 

is there have been, as you have acknowledged, determinations that 

are not cemented in logic. 

Mr. HOPPER. Oh, absolutely. 

Mr. BAKER. For example, in construction of the interstate between Baton Rouge and Lafayette, there were isolated wetlands 

that were maintained by the contractor during the constructed of 

the elevated interstate, but when he left, those died. They were not 

41

wetlands of a permanent or natural nature. They were creations of 

the construction effort. 

Those are the kinds of concerns that practical people have about 

the extension of this authority in an unbridled fashion. If there are 

ways you can suggest to better clarify without extraordinary overreach. 

I am not suggesting that the Chairman’s bill isn’t going to pass 

as it is. He can pretty much do what he chooses here, but if there 

is a way to suggest a modest improvement in a definitional arena, 

I certainly would like to explore that with you. 

Mr. HOPPER. I can think of no modest improvement. I can suggest an improvement. 

I think clearly if you are going to, this Clean Water Restoration 

Act, as proposed, simply says we are going to regulate all waters 

until a court says we can’t. That is what it says, and it will cover 

all waters. All right, now. 

Mr. BAKER. Except on the visitors center. 

Mr. HOPPER. No. It will cover that. It will cover that on the visitors center, but it won’t be called a wetland. 

Mr. BAKER. Okay. 

Mr. EHLERS. Will the gentleman yield? 

Mr. BAKER. I would be happy to yield, yes. 

Mr. EHLERS. I would have to agree with the professor from the 

State of Maryland. This area over here would not. The visitors centers is not going to meet the test of hydrology, of soil type or vegetation. So the visitors centers is not now or ever will be considered 

a wetland or a non-tidal wetland. 

Mr. HOPPER. But if I could finish with my recommendation. 

Mr. BAKER. I reclaim my time. 

Mr. HOPPER. I think that this bill, as proposed, simply puts us 

in another round of intense litigation. I am volunteering. I do not 

think that this would pass constitutional muster. 

Now I think that if we want to adopt a standard that is respectful of States’ rights and avoids a lot of the problems with intruding 

on the takings clause and property rights and still is protective of 

waters, I think that I would recommend adoption statutorily of the 

standard put forward by the Scalia plurality. 

Then I think what we need to do is continue our efforts with the 

States. The way I read the Clean Water Act of 1972, Congress intended to rely on the States to regulate at the source upstream 

whereas the Federal Government regulates downstream in the navigable waters. That is an entirely rational approach to address a 

nationwide issue. I think that we need to rely on greater States’ 

rights. 

In addition to trying to protect the environment for future generations, we also want to protect the constitutional structure for future generations. The rule of law is an important thing as well. 

Mr. BAKER. Thank you. 

Mr. OBERSTAR. Before I go to Mr. Carney, we have heard a lot 

of discussion about Congressional intent, and I would just like to 

enter into the record at this point the Committee report from this 

Committee when we reported the bill from Committee to the House 

Floor and before going to conference. 

42

‘‘One term the Committee was reluctant to define was the term, 

navigable waters. The reluctance, however, was based on the fear 

that any interpretation would be read narrowly. This is not the 

Committee’s intent. The Committee fully intends that the term, 

navigable waters, be given the broadest possible constitutional interpretation unencumbered by agency determinations which have 

been made or may be made for administrative purposes.’’

That is Congressional intent. That is what the Supreme Court ignored. 

Mr. Carney. 

Mr. CARNEY. Thank you, Mr. Chairman. 

Mr. Hopper, I guess I need you to help me follow a couple things 

here. 

In the very first sentence of your testimony, you assert that, and 

please let me quote you: ‘‘In over 30 years of enforcement of the 

Clean Water Act, agency officials were never able to provide a predictable consistent standard for Federal jurisdiction.’’

Mr. HOPPER. That is correct. 

Mr. CARNEY. You then go on to support this sentence with reference to the 2004 GAO report. Now, while you imply that the report supports this 30 year record, you do not make any references 

whatsoever to the time period actually covered in the GAO analysis, interviews that took place over a 10 month period regarding 

the less than 3 years following the SWANCC decision. 

Could you please explain how the time period assessed in the 

GAO report, 2001-2004, accounts for that 30 year period? 

Are there non-anecdotal references to the Committee that supports the 27 and some years you refer to in the first sentence? 

Mr. HOPPER. I don’t think I can cite to you any non-anecdotal references. I am not sure what you are asking with respect to this 

three year time frame. 

All I am suggesting is that, in both the SWANCC and in the 

Rapanos decision, the pluralities and the majority castigated the 

Corps for its ever changing regulatory framework. The migratory 

bird rule was adopted subsequent to the regulations that now exist. 

It was an underground regulation. It was never formally adopted, 

but it was followed and used. 

The Corps has specifically disclaimed in formal regulations that 

it does not have authority to regulate certain discharges and certain types of ditches, drainage ditches and the like. But, subsequently, it asserted authority over that. 

Let me just point out that with respect to SWANCC even though 

it was quite clear. 

Mr. CARNEY. It has done this over 30 years in other words. 

Mr. HOPPER. Well, if it were consistent over 30 years, it wouldn’t 

have been inconsistent in the past 3 years or 5 years or 10 years. 

Mr. CARNEY. Basically, you are saying over 30 years using a 3 

year period to mark 30 years of inconsistency, is that right? 

Mr. HOPPER. I am just saying that in the 30 years experience 

that the Corps has had to enforce, it has not come up with a consistent jurisdictional standard. 

Mr. CARNEY. I see, okay. 

Professor Percival, do you care to weigh in on that. 

43

Mr. PERCIVAL. Yes. I have read the GAO report, and the whole 

motivation behind having the GAO do the report was to find out 

how the Corps was responding to SWANCC. So, if anything, it actually supports the notion that SWANCC is the source of any inconsistencies that are referenced in that report, that the Corps 

didn’t understand what its limits were for the scope of Federal jurisdiction, and that is why the report documents cases where they 

are applying different interpretations. 

If anything, that reinforces the case for going back to a preSWANCC interpretation as the Chairman’s bill would do. 

Mr. CARNEY. Thank you. 

Professor Connolly? 

Ms. CONNOLLY. Yes. I think that I have to pleasure every summer of working with Corps employees, teaching them an environmental laws and regulations course. So I actually get to meet with 

people who are in the field, trying to work with these regulations 

on a regular basis, and I have the utmost of respect for the employees who are trying to do this. 

As the Chairman pointed out, waters are different in different 

places, and there does need to be some different interpretations. 

The other interesting thing when you are looking at the data, I 

think that SWANCC put things into a very different perspective 

and that there was a lot of confusion. 

I think the GAO report. I was privileged to help prepare the folks 

who were doing the GAO report, and I know exactly what they 

were focusing on. They were trying to figure out what was happening in the field then. 

There has been an additional data call, and there are additional 

data that the Corps has gathered. It shows that, yes, there is confusion, and that is precisely why this legislation is needed to help 

the folks who are in the field, to help the folks who are in the permitted community, to help the folks who are all stakeholders figure 

out where go to from here. 

Litigation about this will continue absent some sort of directive, 

and it will continue to be a mess. There needs to be a directive 

from Congress to help us get past where we have gotten in light 

of these two Supreme Court decisions. 

Mr. CARNEY. Mr. Hopper, would legislative clarity clear up this 

cloudiness, do you think or, no, it will create more? What is your 

impression? 

Mr. HOPPER. Well, if the legislation were clear, then it would 

help, I suppose. I don’t see it. I don’t see that with this proposal. 

I mean it is clear that if it were adopted, it says we will regulate 

all waters. I mean that is clear. 

However, again, I think that that will only last until the Court 

has addressed it. It invites. Because the legislation says we are 

going to regulate to the fullest extent of the law, it invites the 

Court to determine what that full extent is. I suggest that is an 

abdication of the Congressional role. Congress has its own responsibility to determine the reasonable limits of its constitutional powers. 

I think that it is clear that the Supreme Court under the commerce clause will require some limits to the commerce clause. This 

44

proposal offers or recognizes no limits to Federal control over State 

waters. 

Mr. CARNEY. Okay. I guess I am trying to work through is your 

concern with the scope or the definition? 

Mr. HOPPER. Well, I don’t think you can separate them. I think 

it is too broad from a scope standpoint. The definition, I could talk 

to you for hours about the ambiguities in the current definition. 

Mr. CARNEY. I really wish you wouldn’t. 

[Laughter.] 

Mr. HOPPER. For example, it does not define tributaries, so that 

is still an open question. Again, as the Court has recognized in 

Rapanos, and we argued in that case, it is a moving target. There 

has never been a regulatory definition of tributaries. We don’t have 

a statutory definition of tributaries. It is going to continue to be a 

bone of contention and subject to litigation. 

Mr. CARNEY. Professor Percival? 

Mr. PERCIVAL. I just would like to state that the consequences of 

adopting Justice Scalia’s definition as Mr. Hopper has been advocating is that there would be a tremendous restriction of the Federal Government’s ability to regulate under the Clean Water Act, 

not just to protect wetlands but also to stop point source dischargers and also to prevent oil pollution. 

In fact, it would have it exactly backwards because the area 

where you wouldn’t have Federal jurisdiction would be in those upstream areas of the watershed where the States themselves would 

have little incentive to adopt protections because it would primarily 

benefit States downstream. 

I think that is precisely the reason that the overwhelming majority of States supported the Federal Government’s position in both 

SWANCC and Rapanos and resisted efforts to try to narrow the 

regulatory jurisdiction of the Corps. This bill in no way would be 

an unprecedented intrusion on States’ rights. In fact, it would restore the ability of the Federal Government to protect States that 

otherwise are relative helpless about the pollution that flows into 

their State from other States. 

Mr. CARNEY. Thank you. 

Ms. Connolly. 

Ms. CONNOLLY. SWANCC actually specifically called on the 

States to respond, and I find it interesting that most did not respond. I think in part and as somebody who is active in the debates 

in South Carolina, the States honestly feel that the Federal Government has an important role here. 

In fact, there were the vast majority, 33 States, signed onto a bill 

supporting the Government’s interpretation in the Rapanos and 

Carabell decisions. I think that they recognize that having Congress set forth workable language that will achieve the Congressional purpose, as the Chairman pointed out so well, the chemical, 

physical and biological integrity of the Nation’s waters is necessary 

and not the responsibility of the States. 

Mr. CARNEY. All right, thank you. 

Mr. Chairman, I thank you for the indulgence of your time. 

Mr. OBERSTAR. I appreciate the gentleman’s questions. 

Professor Gilchrest. 

Mr. GILCHREST. That is my brother, Mr. Chairman. 

45

I would like just a statement first to clarify the intent of this 

Congressman, make that very clear. Rivers and Harbors Act, Clean 

Water Act, legislative history going back 100 years, 30 years, 3 

years, what my intention is along with a number of my colleagues 

is to get a grasp or an understanding of the change in the hydrologic cycle of water in the United States over the last 500 years. 

What was the hydrologic cycle 500 years ago, 400 years ago, 300 

years ago, all the way up the present day? It has drastically been 

changed and, to a large extent, been degraded. 

I would also say, and I don’t say this in a flippant manner, but 

I remember the definition of tributary in my seventh grade geography class. We could probably take Mr. Bussey’s definition from 

my seventh grade and apply that somewhere for the tributary. 

What do we do now with our intent as Members of Congress? Do 

we apply navigable waters just to the Federal Government just for 

downstream purposes and allow the States to deal with upstream 

regulations or do we have a better sense? 

We do have to deal with the legality of this. We have to deal with 

statutes. We have to deal with regulations. We have to deal with 

judicial interpretations of those things. But underneath all of this 

is an ephemeral stream that provides a magnificent ecological 

niche in vast areas of this Country or there are tributaries or there 

are intermittent streams or there are non-tidal wetlands or there 

are coastal areas that depend on streams and tributaries and rivers 

coming from the interior of the U.S. which provide coastal area 

habitat for spawning fish of which 75 percent we use on our dinner 

plates. 

The understanding that there is nature’s design, especially nature’s design that is dependent upon the hydrologic cycle, upon 

which we are dependent. So the intent of Congress is to understand 

how human activity can and must now with a bulging population 

be compatible with nature’s design. 

For all those legal wrangling, the intent of this Committee to 

have some understanding about when you drive a tractor across a 

field too many times, you are going to leave a rut, but that is already taken care of because normal farming practices are exempt 

from these regulations. 

I guess my question is if we take out in the present legislation 

the term, navigable waters, and we use the language of this legislation, what else needs, in your judgment, to be done with the language of the legislation to clarify the intent of Congress? Not to become over-bureaucratic to a mining operation where they leave a 

couple of ditches and they fill up with water and they are waters 

of the United States, so you can’t do anything else with them, or 

a farmer that might want to change from corn to a nursery operation to growing lodgepole pines or something like that. 

What else do you think in the present legislation needs to be 

changed, if any, to clarify the intent of Congress to restore the 

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

and what do you think might need to be changed in the regulatory 

structure that should be made into statute? 

Mr. PERCIVAL. A couple of things that come to mind: First, I 

think the most important thing you can do is make it clear as this 

hearing is doing by contributing to the legislative history that your 

46

intent is not to expand in any way Federal authority but simply 

to restore it to the state it was in prior to the SWANCC and 

Rapanos decisions. 

The fact that Chairman Oberstar’s bill has a savings clause that 

specifically references the existing exemptions in the Act certainly 

will make it clear that normal farming activities are not subject to 

the Section 404 program even though we keep hearing about these 

anecdotes that supposedly this would cause some problem there. 

I think Justice Breyer said it right in his dissent, his separate 

dissent in the Rapanos case where he said that the waters of the 

U.S. are so various and so intricately interconnected that the only 

way to achieve the Congressional goal of restoring their chemical, 

physical and biological integrity is to do what essentially Chairman 

Oberstar’s bill would do, to extend Federal authority to the limits 

of Congress’ constitutional power while entrusting to the Corps and 

EPA the responsibility of exercising that power intelligently, subject to Congressional oversight. 

Mr. HOPPER. I don’t think that protecting the Nation’s waters requires federalizing the Nation’s waters. 

Mr. GILCHREST. Can I just interrupt the gentleman just for one 

second? 

I live in the Chesapeake Bay Region of Maryland, and the biggest contributor of freshwater and also the biggest contributor of 

nitrogen to the Chesapeake Bay comes from the Susquehanna 

River which is Pennsylvania. Of course, that is a navigable water 

but what goes into the Susquehanna River from as far away as 

Cooperstown, New York and Harrisburg, Pennsylvania. There are 

numerous ephemeral and small tributaries. 

Mr. HOPPER. I think that the Federal structure requires that any 

legislation accommodate States’ rights and individual rights. The 

Supreme Court said, I think, best when they said that notwithstanding our desire to improve the human condition, we cannot do 

so by means shorter than the constitutional way. 

One of the virtues of the plurality approach in the Rapanos, even 

though I can see as Professor Percival rightly pointed out that it 

would greatly reduce the reach of Federal control, is that that approach at least has the virtue of being clearly demarking, fairly 

clearly demarking where Federal control ends and State control begins. 

One of the reasons why a lot of the States have not been able 

to step up subsequent to SWANCC was because it was not clear 

where the Federal Government was going to draw the line after 

SWANCC. After SWANCC, it should have been clear that the 

Corps had no authority to regulate isolated water bodies, but it is 

still doing so and has narrowly interpreted SWANCC. 

So, in response to your question, I think what is needed is a clear 

demarcation of Federal authority versus State authority. I don’t 

think the answer is to cut the States out of it in the sense of federalizing it as this proposal seems to do, and I do think that the 

Supreme Court has at least indicated that Federal control could go 

as far as the plurality has said. 

Mr. GILCHREST. Thank you very much. 

Ms. CONNOLLY. In answer to your question, I would change nothing. I think that the definition and the bill are sufficient, and I 

47

think that what we need to bear in mind is that our constitution 

and our Nation have designed the system that the Executive 

Branch are the experts. 

I am not a scientist, but the science shows—and I have got this 

in my submitted text—that broader regulation is essential. And so, 

I think that this is an example, that the language before this Committee will satisfy those requirements. 

Mr. GILCHREST. Thank you very much. 

My closing comment, Mr. Chairman, is Oliver Wendell Holmes 

said the Constitution was made for people with fundamentally differing views, so we are seeing that play out here. Thank you. 

Mr. OBERSTAR. Thank you very much, Mr. Gilchrest. 

Mr. Arcuri. 

Mr. ARCURI. Thank you, Mr. Chairman. 

I would just like to thank the panel. I learned a great deal, listening to the three of you. Thank you very much for sharing your 

thoughts. 

I just would like to point out that I certainly share the Ranking 

Member’s concerns with respect to creating a bill that would in 

places like in my district where we have extensive farmland, where 

if it rains very hard you are going to get temporary wet spots, certainly creating a situation where then there can be regulation or 

that the farmer would have to submit a permit before using fertilizer or farming his land is a concern. 

However, to the point that Mr. Gilchrest made in referencing 

Cooperstown which is in my district. I happen just last week to 

have been by the very small stream that actually is the beginning 

of the Susquehanna Basin in Cooperstown, and it clearly is not a 

navigable stream. 

My concern is this: If we narrow the definition to the point where 

we are only applying to navigable streams, clearly we are missing 

the boat because again the Susquehanna Basin starts in a small 

little stream in Cooperstown. If that is being polluted somewhere 

along the way in many, many very small former mill towns, we are 

not going to be able to regulate it if the State of New York chooses 

not to regulate it. 

So my concern is how do we do that federally? How do we deal 

with it if a State chooses not to regulate it in its own State? 

Mr. HOPPER. Well, I don’t see the State not regulating any water 

body. I think I can say with confidence that it is illegal in every 

State to discharge pollutants to water bodies. Nobody on the Supreme Court, absolutely nobody on the Supreme Court has suggested that Federal regulation is limited to actual navigable waters. It is beyond that. 

So your concern, I think, is something you can put behind you. 

There is no precedent now for limiting Federal jurisdiction to actual navigable waters. We are beyond that. 

I think that there has been an awakening, environmental awakening among the people and among State legislators. I just think 

that in keeping with the constitutional structure and what Congress expressed as a policy to defer to the State’s primary responsibility to protect against pollution, then I think States will step up 

and assume that proper role once it is clear where Federal jurisdiction ends. 

48

Ms. CONNOLLY. With respect to your question, Congressman, 

about the exemptions, one thing that is very clear, the savings 

clause makes sure to clarify something in a way that I actually 

don’t think is necessary. I think it is extra. I think that the exemptions that are currently in place 404(f) would remain in place and 

that farmers putting down fertilizers are exempt from 404 regulation and would remain exempt from 404 regulation. 

Mr. ARCURI. That is the fear that we get. That is the number one 

question that we get from people with respect to this, to the 

change. 

Ms. CONNOLLY. I understand that is why the savings clause was 

included even though it, under most analyses, would not be necessary. 

Mr. PERCIVAL. I concur with Professor Connolly’s remarks. 

Mr. ARCURI. Thank you very much. 

Mr. OBERSTAR. I think this panel’s testimony may be the most 

important of our inquiry while not denigrating any other testimony. The issue of constitutionality, the issue of intent of Congress 

is critical to moving forward with the pending bill. I think these 

very thoughtful, scholarly presentations from one end of the spectrum to another are extremely important. 

I would like to ask Professor Percival. How can the same justice 

be on two sides of the issue? 

Your research on Justice Rehnquist’s opinion in 1979: ‘‘Reference 

to the navigability of a waterway adds little, if anything, to the 

breadth of Congress’ regulatory power over interstate commerce. It 

has long been settled that Congress has extensive authority over 

this Nation’s waters under the commerce clause. It cannot properly 

be said that the constitutional power of the United States over its 

waters is limited to control for navigation.’’

Then he goes further to hold that the regulatory program established by the Clean Water Act was so comprehensive it preempted 

the federal common law of interstate nuisance. 

Then how could he side with Justice Scalia? What intellectual 

leap of faith did he make? 

Mr. PERCIVAL. Well, I actually think that that is not really an 

inconsistency. 

Justice Rehnquist had his own particular vision of federalism 

which he adhered to consistently regardless of whether it supported a conservative or liberal cause. He had already, at the time 

he made those statements about Congress having such broad constitutional power to protect the waters of the United States, said 

in his dissent in Fry v. United States that there can be no more 

important issue before the Court than how to resuscitate States’ 

rights. 

In 1981, what he was doing when he said the federal common 

law of nuisance that the Supreme Court had used throughout the 

early 20th Century to try to resolve interstate pollution disputes 

between States, when he said that was preempted, he was doing 

so for two reasons: first, because he did indeed believe that the 

Clean Water Act was so comprehensive because it required a permit for any discharge to the waters of the United States, that that 

would take care of the problem and, secondly, he thought that the 

judiciary was uniquely ill suited to serve as a kind of national EPA 

49

umpiring these disputes. It is best left to the administrative agencies. 

I think that explains why in 1985 he joined the unanimous decision by Justice White in the Riverside Bayview case, that that was 

the proper view of the law. 

Now it is true that in the SWANCC decision, he was in the majority in that case, but I suspect that was because he viewed the 

facts of that case very differently. I don’t know how he would have 

come out in Rapanos. 

But, again, you have to bear in mind that both SWANCC and 

Rapanos are not constitutional decisions. The Court didn’t question 

the constitutional authority of Congress under the Clean Water 

Act. Instead, what they said is even though this might have bad 

consequences for the environment, it is not our fault. We think 

Congress adopted a narrower interpretation, and it is up to Congress to tell them they are wrong if that is the case. 

Mr. OBERSTAR. Thank you. 

Mr. Hall has arrived, and we are glad to welcome him back to 

the Committee. The gentleman is recognized. 

Mr. HALL. Thank you, Mr. Chairman. I appreciate your tolerance 

with my scheduling and thank you, panel, who I am sure I will 

read up on all of your testimony that preceded my arrival. 

There are two questions I have. One is under the current guidance which proposes to use both the Scalia test and then failing 

that the Kennedy significant nexus test, evaluations of waters 

could add significant time, maybe two to three months, to water 

protection projects. Assuming that type of burden, doesn’t the regulatory confusion created by the Supreme Court threaten to shortcircuit the already overwhelmed system? 

Nodding is noted. 

Ms. CONNOLLY. I agree completely, and that is something that I 

have got in my written testimony and I mentioned briefly as well. 

I think that the Corps of Engineers, and I work with Corps people on a regular basis, do their best to keep up with things, but 

there is a huge workload. They process 90,000 permit applications 

and over 100,000 jurisdictional determinations every year. 

The so-called guidance that leaves a lot of unanswered questions 

is going to add a huge burden to them or, in the alternative, it is 

going to cause a decision just not to regulate things that should be 

regulated because it is too difficult or there is too much pushback. 

That is my real concern is that there may be a great falloff in regulation as a result of this guidance. 

Mr. HOPPER. I think it will result in just the opposite. 

Mr. HALL. Okay. 

Professor, do you want to weigh in? 

Mr. PERCIVAL. I would tend to agree with Professor Connolly. 

I would also emphasize that if you look at the history of the 1972 

legislation, one of the things Congress was doing was rejecting the 

notion of relying primarily on site-specific assessments of environmental impact on ambient water quality. That is why we went to 

this comprehensive system of national technology-based effluent 

standards because we realized that we just couldn’t accomplish it 

if you had to, for every discharger, make such an assessment. Here, 

it is for jurisdictional purposes as well. 

50

Mr. HALL. The second question is because I have a strong farming presence in my community and concerns have been expressed 

about reaction to the Supreme Court ruling on the future of clean 

water regulation, I would appreciate any comments on the way the 

impacts of the current regulatory situation would affect farming 

practices. 

Also, to what extent, if any, would removal of the word, navigable, from the underlying statute have on fields with grass waterways for temporary wet spots? 

Mr. PERCIVAL. I would again reiterate that the legislation expressly in its savings clause reiterates the existing exemption for 

normal farming activities from the Section 404 program. 

I think the one thing the legislation might do that would affect 

farmers is that by ensuring that the confusion created by the Supreme Court decisions will not lead to a great cutback in the scope 

of Federal jurisdiction, it will do a better job of protecting watersheds and thus improve the quality of waters that many of those 

farmers may use for irrigation. 

Mr. HOPPER. One of the problems with the farm exemptions is 

that even though the language is broad the interpretation is quite 

narrow. For example, what is exempt is ordinary farming practices, 

but the way the Corps applies that, that doesn’t mean ordinary 

farming practices throughout the Country or even throughout a region but on this particular farm. So if you are switching from row 

crops to vineyards, as was the case in the Borden Ranch case, you 

will run afoul of Federal regulation because this narrow interpretation would not apply the farm exemption to that type of activity. 

Deep plowing was at issue there where a shank is brought into 

the ground to tear it up so you get better drainage for the vineyard 

as opposed to the row crops, and the Corps of Engineers determined that that was an ordinary practice on this particular ranch. 

It couldn’t be used and was subject to Federal control. 

As to whether the proposed bill would regulate you said small 

areas that become wet, if they fall outside of the farm exemption, 

they would be regulated. Small ponds or swales, those types of 

areas may well be regulated. I think that what is clear here is that 

all waters are going to be regulated unless they fall within this 

narrow interpretation of the farm exemption. 

Mr. HALL. Thank you. 

I have one last question for both Professor Connolly and for you, 

Mr. Hopper, and that is some States including New York have an 

ongoing discussion about the ramifications of the waterway being 

navigable in terms of public access on private land. In other words, 

if one can canoe in or kayak in on a two inch deep stream or so 

on, that then could be construed as allowing public access. 

Is there a crossover between what under these rulings are for the 

purpose of water quality protection what is determined navigable 

and what is determined navigable in terms of access? 

Ms. CONNOLLY. What you are referring to, I believe, are the 

issues related to public trust and when you get into the concepts 

of navigability and protection of access to water. Historically, that 

is coming from ancient Roman times, and that is a separate question. The definitions that would be put in place by this proposed 

legislation, I do not think, would come into play there. 

51

I also would like to go back just briefly to your previous question 

about the farming exemptions and just wanted to add one little 

thought which is even in the event that certain activities such as 

changing from one type of farming operation to an entirely different type of farming operation that would involve great disturbance, many, many of those activities would fall under a streamlined permitting process. 

Even though the Corps does undertake 90,000 permit applications, 90,000 permit actions a year, only about 5,000 of those are 

the full individual permitting process where there is a public interest review and public notice and comment. For the most part, most 

of those activities proceed through a streamlined process, and most 

farming activities, even if they were captured, would likely proceed 

through a streamlined permitting process. 

Mr. HOPPER. Streamlined permitting is a misnomer. The cost is 

very high even for a nationwide permit, and the length of time to 

get a nationwide permit is very long. 

Beyond that, what the statistics about permit grants don’t tell 

you is the impact on the permittee. I just got a call yesterday from 

a fellow in Florida who wants to fill 11 acres on his property. He 

can get a permit if he provides 273 acres in mitigation. That is 

what the statistics don’t tell you. 

Now with respect to this access, I agree with the professor. I am 

not so sure. I don’t see an immediate impact on crossover. I don’t 

see this as really affecting the access question immediately. I would 

just say, however, that there is an issue of incrementalism that 

goes on where we see the silent encroachment of Federal power in 

one area does bleed over into other areas. 

Mr. HALL. The finishing creeps. 

Mr. HOPPER. So I would not say as a matter of law that this 

would have no impact on access rights. 

Mr. HALL. Professor Percival? 

Mr. PERCIVAL. I would just say I don’t see any conceivable way 

in which this bill could change rights of access. 

The second point I would make is that there was one case before 

the Supreme Court where a private landowner actually dug a channel to his lake in order to connect it to the ocean. That is the Kaiser Aetna case. What the Supreme Court ruled in that case is even 

though the landowner had made it navigable, the navigation servitude did not mean that that became anything that the public had 

a right of access to unless the Government actually took the property and paid compensation to the landowner. So I don’t see any 

conceivable way that could be a problem. 

Mr. HALL. Thank you. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Well, I thank you very much for your contribution, Mr. Hall, and for the questions and for the responses. 

Coming back to my reading earlier into the record the Committee 

report language which clearly expresses the intent of Congress in 

addition to and supplementing the actual words, that the Committee was reluctant to define. 

‘‘One term that the Committee was reluctant to define was the 

term, navigable waters. The reluctance was based on the fear that 

any interpretation would be read narrowly. However, this is not 

52

the Committee’s intent. The Committee fully intends that the term, 

navigable waters, be given the broadest possible constitutional interpretation, unencumbered by agency determinations which have 

been made or may be made for administrative purposes.’’

Is there any way, Mr. Hopper, that we could refine the language 

in the bill I have introduced, pending before the Committee, that 

would resolve fears that Congress is overreaching in light of the 

legislative history and intent of Congress? 

Mr. HOPPER. Yes, well, you could shelve it. I think that is the 

only way it would resolve my concerns about overreaching. 

Mr. OBERSTAR. But that would then close off opportunities for attorneys like you to litigate? 

Mr. HOPPER. We have got plenty of work to do. 

I think that what you just read was also cited by Mr. Baker, and 

he went on further in that citation to indicate. 

Mr. OBERSTAR. No. He was referring to the law. I am referring 

to the Committee report. 

Mr. HOPPER. It sounded like the same language to me. In any 

event, it was similar language that was cited by the Corps of Engineers in the SWANCC case, and the Court looked at that and said, 

we still don’t feel that that was an adequate expression of Congressional intent to go beyond traditional powers over navigation. 

But as I said at the beginning, Mr. Chairman, I think what is 

important here, at least one thing that your bill does is that it 

clearly states that in the bill that Congress intends to exercise its 

full extent of its authority. 

We, as a regulated public, public officials don’t have access to 

these Committee reports, and we have to live with the law as it 

is written. And so, it is the language in the Act that is important. 

It is not some subjective interpretation of any one of us or even any 

eloquent statement of purpose in these reports. They really don’t 

count. The courts don’t even get to them unless there is some ambiguity in the language of the Act itself. 

Mr. OBERSTAR. Well, that is true, that the courts have traditionally not reviewed, except where there is great uncertainty, the 

Committee reports. Yet, Committee reports very consistently interpret the language in layman’s terms rather than in legislative 

terms. 

The courts try to avoid that, but they gratuitously come in and 

say, well, we know what Congress intended. It certainly had to 

mean thus and so. 

We deal with that constantly while we continue to refine our legislation. 

I think in the purpose of protecting the Nation’s waters, we intend to move forward with clarity, and clarity means taking the 

term, navigable, out if that confuses the Court. 

I appreciate the contributions of all three of you in helping us in 

these deliberations. 

Mr. HOPPER. Thank you. 

Mr. OBERSTAR. The Committee is adjourned. 

[Whereupon, at 6:00 p.m., the Committee was adjourned.]

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572

STATUS OF THE NATION’S WATERS INCLUDING WETLANDS, UNDER THE JURISDICTION 

OF THE FEDERAL WATER POLLUTION CONTROL ACT 

Thursday, July 19, 2007

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, Washington, DC. 

The Committee met, pursuant to call, at 2:05 p.m., in Room 

2167, Rayburn House Office Building, Hon. James Oberstar [Chairman of the Committee] Presiding. 

Ms. JOHNSON OF TEXAS. [Presiding.] Good afternoon. I would like 

to welcome today’s witnesses to our hearing, and, I am certain, the 

Ranking Member. Today we will hear from former EPA Administrator Carol Browner, scientists, and other interested stakeholders. 

In addition to this being an important issue in its own right, I am 

also looking forward to learning more about the original purpose 

and intent of the Federal Water Pollution Control Act Amendments 

of 1972, more commonly known as the Clean Water Act. Our witnesses here today will provide informative testimony on where the 

Clean Water Act has worked and where it needs to be improved. 

Members of the Committee, while the 1972 Clean Water Act 

Amendments were passed many years ago, and while those laws 

and regulations worked quite well for a long period, times have 

changed. In recent years the Supreme Court has stepped in and 

subverted the purpose and protections of the Clean Water Act. Like 

water under a bridge, congressional intent was simply washed 

away. When the Court makes decisions that are driven by ideology, 

driven by politics, it makes a mistake. 

Sadly, though, we know all too well the ramifications of the Bush 

v. Gore decision. We will soon see the mess that is a result of the 

Rapanos and Carabell decisions. 

The Rapanos decision and the muddy guidance that has followed 

will only result in continued confusion and added expense for the 

regulated community. This, Members of the Committee, is confusion that simply did not exist prior to 2001, the SWANCC decision. 

And it is not just regulatory confusion that has resulted from these 

decisions. 

Grave environmental harm, damage to our streams and wetlands 

have come about from the unwarranted actions taken by the Court. 

The issue is a matter of clean drinking water for all of this country’s citizens, and it is a matter of protecting our so very valuable 

water resources. I look forward to today’s hearing to learn more 

about the implications of these Court decisions on the important 

issue of wetlands and water quality protection. Thank you. 

The Chair now recognizes Mr. Baker. 

Mr. BAKER. I thank the gentlelady for recognition, and appreciate the willingness of the Chair to again convene a hearing on 

this important matter. This is the second in a series, and I think 

573

will help the Committee to better understand the important issues 

before us. 

I would like to perhaps review the history of the matter from a 

slightly different perspective. From the 1899 Harbors and Rivers 

Act to the 1972 Clean Water Amendments, the history was fairly 

clear and certain. As a result of the 1972 amendments and the congressional debate that ensued with the adoption of that act, the 

Corps took one direction with regard to rules promulgation, while 

the EPA was in a slightly different perspective. The resulting conflict between the two agency interpretations was litigation in the 

District Court of D.C., which consequently ordered the Corps to 

take on a more aggressive regulatory posture. 

From that point forward, there was much uncertainty as to what 

constitutes a navigable water of the United States subject to the 

authority of the Clean Water Act. And from my reading of the Supreme Court cases over time, it becomes clear that navigable waters does in fact mean navigable as to use, or may become navigable with minor modifications to the water system. That was 

again extended to tributaries of the navigable waterway, to wetlands that abut a navigable waterway. 

But throughout all court findings, the term ′′navigable waterway′′ is the building block upon which jurisdiction of the Clean Water 

Act flowed. The SWANCC and Rapanos cases did in fact reach an 

appropriate balance, in my view, in restoration of the responsibilities of the States to act in preserving environmental quality as 

well as better defining the role of the Federal Government by not 

extending coverage to isolated waters or wetlands. 

Although there appears to be some confusion as to the current 

meaning of the Court’s findings, it is clear to me that there is a 

perhaps more appropriate balance between State and Federal role 

and between private property ownership and public interest. 

We should tread carefully as we move forward. As I am from a 

State which relies to great extent on water quality, fisheries and 

our navigability of our most important asset, the Mississippi River, 

we do have great interest in preserving water quality within reasonable bounds. However, the bureaucratic decisions in many 

cases, identifying tractor tire ruts across a wet field, which subsequently fill with water as a wetlands subject to the Clean Water 

Act jurisdiction, do not lead one to conclude that logic is always applied in these matters. 

And so I am anxious to work with the Chair to find a reasonable 

balance in moving forward to ensure that private property rights 

are regarded, that the States are given full responsibility for supervision of their own environmental habitat, and that the Federal 

role is relegated behind those two in order to preserve environmental balance. 

I appreciate the opportunity to participate, Madam Chair, and 

yield back my time. 

Ms. JOHNSON OF TEXAS. Thank you very much. 

Mr. Bishop? 

Mr. BISHOP. I will submit a statement for the record, Madam 

Chair, thank you very much. 

Ms. JOHNSON OF TEXAS. Thank you very much. 

Mr. Higgins, would you have an opening statement? 

574

Mr. HIGGINS. I will just submit a statement for the record as 

well, Madam Chair. Thank you. 

Ms. JOHNSON OF TEXAS. Okay. 

Anyone else? Yes, Mr. Westmoreland. 

Mr. WESTMORELAND. Thank you, Madam Chair. And I would like 

to thank you for holding this series of hearings and the proposal 

to adjust the Clean Water Act. I want to thank Ms. Browner for 

being here also to testify. I am looking forward to hearing your testimony. 

However this legislation’s objectives are alarming. I have several 

questions and concerns that I want to address. The bill overtly intends to expand the Clean Water Act which has maintained our 

Nation’s waters for 35 years. If we remove the word ′′navigable,′′

which is used 81 times in the clean water legislation—so I don’t 

think it was misunderstood that ′′navigable′′ was supposed to be in 

there—it will result in the expansion of the Clean Water Act since 

the 1972 inception. 

If we replace ′′navigable waters′′ with ′′waters of the United 

States,′′ and expand the scope of Federal jurisdiction to its maximum limits under the Constitution, the bill would effectively negate decades of jurisprudence. This will become the courts to decide 

the constitutional limits of Federal jurisdiction under the Clean 

Water Act, at a great cost to the American people. And as the 

Chairlady spoke today, it would end up back in the high Court, and 

presumably with the same result. 

The Chairman’s bill claims to restore the original intent of Congress. And I don’t know how much more the original intent could 

be than to use a term 81 times. But the reality is that the bill is 

only broadening the jurisdiction of the Clean Water Act to cover 

any and every wet area of the United States, the most troubling 

of all has yet to come. The business and activities of farmers, 

ranchers, road builders, property owners, water planners, and so 

on will be all included under this new expansion of government. 

The only way to decide if water is subject to the new terms would 

be through excessive permitting and oversight, and of course costly 

and time-consuming litigation. The Chairlady spoke about the 

court cases. Those court cases were to stop the overreach of the 

EPA, Fish and Wildlife, and the Corps. It was trying to show them 

that there were bounds under the Clean Water Act that they had 

to work within. They weren’t destroying the Clean Water Act. 

These agencies were reaching over the bounds that the constitutional authority of Congress gave them. 

And, Madam Chairman, what we are talking about with this proposal, and I have only been here 3 years, but I think this is the 

most devastating proposal to the people who grow our food chain 

that I have seen. But this will give EPA and the Corps of Engineers the authority over every wet piece of property in our United 

States. That is something that I hope we can stop, and that we can 

work together to negotiate a solution that we can all live with, 

work with. 

I think we need to look at the original Clean Water Act, clarify 

some of the stuff in that to make sure that EPA and the Corps 

knows their regulations. 

575

Now, let me say this. I have projects that I know of that people 

have been working on for 30 years trying to get a 404 permit. Thirty years. That is too long. And it is a process, and it is a bureaucratic process, and it is the expansion of government that is causing people to go without drinking water today. 

So with that, Madam Chairman, I yield back the balance of my 

time, and I look forward to the testimony. 

Ms. JOHNSON OF TEXAS. Thank you very much, Mr. Westmoreland. 

The Chair now recognizes Ms. Matsui. 

Ms. MATSUI. Thank you, Madam Chair. I think this is a very important hearing. The Clean Water Act has been the subject of quite 

a bit of legislative speculation quite recently, as well as legal interpretation over the years. And one thing I believe that hits a lot of 

us as we deal with our districts and our constituents is we can 

agree that the permitting process is not equally administered everywhere, and in some districts it is broken and needs to be fixed. 

What those fixes are and how they are made are issues that all 

of us will have to work through. What is clear is that we need to 

start somewhere in addressing the immediate and long-term water 

quality issues facing our country and our communities. 

My district is Sacramento, California, located at the confluence 

of two rivers, the Sacramento and the American. As my colleagues 

have heard me say before, we are the most at-risk river city for catastrophic flooding in the country. The Sacramento region and the 

Sacramento River watershed as a whole is undergoing dynamic 

changes. We are experiencing a huge population growth. We expect 

almost 2 million more people in the Sacramento region alone in the 

next 4 years. 

As we grow, we need to make sure the tools, whether they be policy or regulatory, are in place so that communities like Sacramento 

can address this type of growth and ensure that the overall health 

of our watershed and its communities remain intact. 

Today’s hearing is a good step in sharing perspectives, concerns, 

and experiences in this complex area, and I look forward to working with Madam Chairman on these issues as we move forward, 

and I look forward to hearing today’s witnesses. 

And I thank you very much, and I yield back. 

Ms. JOHNSON OF TEXAS. Thank you very much. 

I would like to, at the request of our Chairman——

Mr. BISHOP. Would the Chairman yield for a second? Thank you. 

I was very interested and truly troubled to hear Mr. Westmoreland’s comments about a 30-year delay. And could I ask that you 

submit to the Committee the details of the case or cases that have 

a 30-year delay? I think all of us on the Committee would like to 

see those. 

Mr. WESTMORELAND. I have those coming. 

Mr. BISHOP. Thank you very much. I appreciate that. Thank you 

for yielding. 

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Ms. JOHNSON OF TEXAS. Thank you. Our Chair is unable to be 

here. Just before I introduce our first witness, I will read his statement. Unfortunately, due to a variety of reasons and scheduling 

conflicts, only our esteemed colleague, Administrator Browner, was 

able to join us this afternoon. However, I ask unanimous consent 

that the testimony of former Administrators William Ruckelshaus, 

Russell Train, and William Reilly, as well as former Assistant Administrators for EPA’s Office of Water, Bob Perciasepe and G. 

Tracy Meehan, be a part of the hearing record. 

Any objections? Hearing none, so ordered. 

Combined, the testimony of these four Administrators and two 

Assistant Administrators span the nearly 35 years of implementation of the Clean Water Act, and represent both Republican and 

Democratic administrations charged with protecting the Nation’s 

waters. 

I would like to read a few excerpts from the testimony for my colleagues to consider. First, from William Ruckelshaus, former EPA 

Administrator for both the Nixon and Reagan administrations: 

′′EPA supported a broad definition of ‘navigable waters’ as ‘waters of the U.S.’ Like Congress, we recognized that the chemical, 

physical, and biological integrity of the Nation’s waters could not 

be maintained and restored unless pollutants could be controlled at 

the source, before they entered traditionally navigable waters. To 

faithfully interpret the key jurisdictional term ’navigable waters’ 

that Congress had just broadly redefined as ’waters of the United 

States,’ EPA proposed a regulatory definition of the term ′′waters 

of the United States′′ that included interstate and intrastate waters. Broad Clean Water Act jurisdiction is not only necessary to 

clean up the Nation’s waters, it is necessary to ensure that the responsibility for maintaining and restoring clean water is shared equitably throughout the watershed and from State to State. 

‘‘In passing the Clean Water Act, Congress recognized that the 

State-by-State approach to water pollution control had failed, and 

that it was necessary to maintain a Federal floor for water pollution control to ensure that discharges in one State do not jeopardize water quality in another.’’

Next, from Russell Train, former Chairman of the Council on Environmental Quality, and former EPA Administrator during the 

Ford administration: 

‘‘A fundamental element of the Clean Water Act is broad jurisdiction over water for pollution control purposes. It has been well established that water moves in interrelated and interdependent hydrologic cycles and it is therefore essential that pollutants be controlled at their source to prevent contamination of downstream waters. When focusing on controlling pollutants, navigable waters, 

portions of those waters, their tributaries, and wetlands all must 

be included in the scope of protected waters. If we did not protect 

these streams, creeks, and wetlands, the course of abating pollution 

in this country would be much more difficult and more expensive 

because of the additional costs of technological fixes that would be 

necessary and in the absence of what nature has provided. Simply 

put, we cannot protect and restore our Nation’s water resources 

without providing appropriate safeguards for the entire resource. 

582

‘‘Comprehensive jurisdiction is necessary to protect the natural 

environment. It is also important to avoid unfair competition. Unless Federal jurisdiction is uniformly implemented for all waters, 

discharges located on nonnavigable tributaries from larger rivers, 

lakes, and other water bodies would not be required to comply with 

the same procedural and substantive standards imposed upon their 

downstream competitors. Artificially limiting jurisdiction to only 

certain waters will create comprehensive disadvantages for certain 

dischargers.’’

Also, from William Reilly, former EPA Administrator during the 

first Bush administration, and participant in the creation of the national goal of ‘‘no less loss of wetlands:’’

‘‘EPA has worked closely with the States over the last 30 years 

to make steady progress in reducing water-borne contamination 

and restoring the commercial, recreational, and ecological health of 

our country’s aquatic resources. This successful Federal-State partnership and the long-settled administrative practices on which it is 

built should not be weakened by an excessively narrow interpretation of the Clean Water Act. 

‘‘Since the Clean Water Act passed, U.S. courts and regulatory 

agencies have consistently complied with Congress’ intent by interpreting the term ’navigable waters’ to cover all interconnected waters, including nonnavigable tributaries and their adjacent wetlands, as well as other waters with ecological, recreational, and 

commercial values, such as so-called ‘isolated’ wetlands and closed 

basin watersheds common in the Western United States. 

‘‘This interpretation of the statute’s jurisdiction is to ensure a robust State-Federal partnership. The key phrase at issue, ’waters of 

the United States,’ applies to all the water pollution control programs established in the Clean Water Act, not just the wetlands 

permit program. 

‘‘Perhaps the most important implication of any change to the 

definition of ’waters of the United States’ is found by looking at the 

Act’s basic prohibition against discharging pollutants into waters 

without a permit in the National Pollution Discharge Elimination 

System (NPDES) program established by section 402 of the Act and 

the Act’s water quality requirements. 

‘‘By using a broad definition of ’waters of the United States,’ Congress recognized the need to address pollution at its source, no 

matter what size water. In reality, there are few isolated waters. 

Indeed, many are linked in their hydrology. 

Congress needs to step up to clarify its intent. It is reasonable 

and sensible to have a broad definition of ’waters of the United 

States’ for the purposes of the Clean Water Act. The goals of the 

Act require it. We need the commonsense approach that Congress 

intended the Clean Water Act to protect our Nation’s waters broadly so that we can reduce discharges of pollutants and ultimately 

achieve the goals of the Act, making all waters swimmable, fishable, and safe for other uses.’’

And finally, from G. Tracy Meehan, former Administrator for the 

Office of Water during the current Bush administration: 

‘‘Mandating navigability as a basis of jurisdiction is inconsistent 

with the Act’s overall objective of restoring and maintaining the 

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

583

It is an artifact of an earlier law, dating back to the 19th century, 

which was designed to avoid obstacles to waterborne commerce 

rather than to implement integrated watershed management or environmental protection. 

‘‘I believe that our unique approach to ‘environmental federalism’ 

under the Clean Water Act, and a science-based watershed approach to protecting America’s aquatic resources, merit congressional action to clarify an extremely confusing and Byzantine situation which now exists in our law and regulation.’’

I thank my colleagues and our witness for their indulgence. This 

is requested by our Chairman, and which is completed. 

I now recognize Congresswoman Norton. 

Ms. NORTON. I thank you, Madam Chairman. I had desired to 

stay at this hearing. I have another hearing. And I did want to 

make a short opening statement because of the nexus between 

what has been reported in chlorine spikes in water here in the Nation’s Capital this very day and the condition of the Potomac River. 

Lest we believe that rigid circumvention of the definition of a 

river or a waterway is the way to health and safety for the American people, we have already had a water scare in this region, a 

lead water scare, where people were not informed of lead spikes. 

And we are using a new chlorine in the river they want to refine. 

There is a report this morning of chlorine toxins found in water 

by a national environmental group. With 1.1 million consumers, including the Federal sector, northern Virginia, and, of course, the 

residents of the District of Columbia, the Agency is very much between a rock and a hard place. The chlorine toxins come from what 

is necessary in order to make drinkable water from the Potomac 

River. Now, if that water gets toxins of every kind, in order to 

make sure we are not truly in a Third World country, you pour in 

all kinds of chemicals. And now you get another reaction. 

What is the answer? All informed experts say the answer is go 

to the water itself. You will always find yourself, it would appear, 

in the position we in this region are in. We have responded to lead 

in the water, we have responded to toxins in the water with a chlorine chemical. It now is producing the possibility of chlorine toxins. 

That kind of seesaw is as dangerous to the health and safety of 

those in this region, and we are informed that this is the choice in 

other regions as well where this particular derivative is being used 

as what we are trying to combat. 

The answer is that there is no way to avoid the source of the 

problem. The source of the problem is in the water itself. We will 

never decontaminate enough the water without, in fact, producing 

new issues for us. And in the process we do not know how many 

men, women, and children, and especially children, may be put in 

danger. 

So I could not be more grateful for this hearing, this series of 

hearings, to deal with water and try to correct the Supreme Court 

decision. 

Ms. JOHNSON OF TEXAS. Thank you very much, Congresswoman. 

Now the Committee will hear from our witnesses. Our first panelist is the Honorable Carol Browner, who is a principal at The 

Albright Group, but she was the Administrator under the Clinton 

584

administration of EPA. Thank you for being here, and you can 

begin your testimony. 

TESTIMONY OF CAROL M. BROWNER, PRINCIPAL, THE 

ALBRIGHT GROUP, LLC; AND FORMER ADMINISTRATOR OF 

THE ENVIRONMENTAL PROTECTION AGENCY 

Ms. BROWNER. Thank you very much, Madam Chair, and Congressman Baker, and Members of the Committee, for the opportunity to speak to you today about the status of our Nation’s waters. If I might take a moment to congratulate Chairman Oberstar 

for his lifelong leadership on the issue of clean water for the people 

of this country. In fact, I think it dates back to his role as a staff 

person here before he was even elected, a quite admirable commitment. 

I want to speak to you today as a former Administrator of the 

Environmental Protection Agency, and I specifically want to lend 

my support to Chairman Oberstar’s bill, which reaffirms the long 

understanding of which waters in this country are protected by the 

Clean Water Act. 

As the Chairwoman noted, I am joined in supporting this bill by 

a number of former Administrators, both Democrats and Republicans, and by the former Deputy Administrator for Water under 

the current administration. The issue that has brought us here is 

obviously the Supreme Court decisions as they relate to wetlands. 

And there is no denying the importance of wetlands for our Nation’s public health, our economy, our ecosystems. 

Wetlands protect and purify our waters, they shield our homes 

and businesses from flooding, and they provide valuable habitat to 

a wide range of wildlife. We have already lost far too many of these 

valuable resources and, in all, the United States has lost nearly 50 

percent of its wetlands, and continues to lose about 60,000 acres of 

wetlands per year. 

Having said that, I think it is very important to remember that 

the definition which is the subject of this legislation would not only 

be applied to which wetlands are protected, but it would impact all 

of our water bodies, because the Clean Water Act also looks at 

what can be discharged from a pipe into the river that becomes our 

drinking water, what can be discharged into the streams and the 

tributaries that then flow into our rivers. 

And so when we think about this legislation, we can’t simply 

think about the wetlands that sort of brought this bill front and 

center, but we should think about the entirety of our commitment 

as a country to protect our water resources. 

For three decades, 35 years following the Clean Water Act’s passage, agencies and courts have agreed on what waters are protected. We can go back and forth on what this or that word meant, 

but when you look at the day-to-day interpretation and the application of that understanding, there has been widespread agreement. 

Obviously, with these recent Supreme Court decisions, there are 

some ambiguities. As a former regulator, I believe very strongly 

that the Congress should clarify and resolve these ambiguities. 

What will happen is in the permitting process, either in the wetlands permitting process or in the discharge permitting process, 

these ambiguities will lead to delays, they will lead to litigation. 

585

If Congress can make the decision to embrace the interpretation 

that has withstood the test of time, we can resolve the ambiguities 

that have risen up because of the decisions. In the most recent Supreme Court case, the Rapanos case, I was joined by three former 

Administrators in filing an amicus brief supporting the 35-year interpretation of the definition. It is also, I think, very important for 

the Committee to note that we shared the same position in that 

litigation as the current administration shared before the Court. 

Let me close by encouraging you to move as quickly as possible. 

These ambiguities are a real problem for the regulators. And let me 

also close by noting that before I joined the Environmental Protection Agency under President Clinton, I served as a State Secretary 

of the Environment. I served as the Secretary of the Environment 

for my home State of Florida. We ran a very, very serious wetlands 

protection program in Florida. Wetlands are essential to our economy in Florida. Even with as serious a program as we had in Florida, we could not have done the job of protecting our citizens’ water 

resources without a Federal program. It takes both a Federal and 

a State program. 

Again, I thank you for the opportunity to be here, and I look forward to answering any questions. 

Ms. JOHNSON OF TEXAS. Thank you very much for being here. 

Congressman Baker. 

Mr. BAKER. Thank you, Madam Chair. 

Ms. Browner, in order to understand more fully your view of 

scale or scope of the subject at hand, you make reference in the 

written testimony to the hydrologic cycle of water. Can you give me 

just a brief description in your mind of what that hydrologic cycle 

narrative would look like? Is it groundwater which flows into a 

wetlands which flows into the oceans, or is it broader than that? 

What constitutes your picture of that cycle? 

Ms. BROWNER. Well, I would actually probably explain it slightly 

in the reverse of what you said, but along those lines. There are 

any number of parts of the country where a wetland essentially is 

filtering water. It may be rainwater, it may be water that has come 

from a tributary, it may be floodwaters that are filtering those waters as they seep down into the groundwater. That, in my mind, 

is a hydrological connection. 

Mr. BAKER. So it is surface water through the geologic structure 

that winds up in some sort of discharge ultimately to an ocean. I 

am trying to get your big picture. 

Ms. BROWNER. Not necessarily to an ocean. A good example 

would be in Florida. The State of Florida is dependent upon an underground aquifer for its drinking water. And so that doesn’t have 

a connection to the ocean—at least none that scientists have discovered yet, maybe someday they will. But you want to protect that 

drinking water source. And the best way to do it is to think about 

what is happening in the recharge areas above that underground 

aquifer, which may be a wetland, which may be a river. You know, 

the connections can happen in many ways. 

Mr. BAKER. In the case of the Baton Rouge aquifer, we have rainfall in Mississippi that does go through the sandstone to a depth 

of about 12,000 feet. The trouble is we do have oceanwater interVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00613 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
586

vention coming from the gulf that is creating a wedge of saltwater 

intrusion, so I got it. My point is larger than that. 

You look at water in the universal context, from pond inland to 

ocean international. That would include rainfall. That is a way to 

recharge the aquifers. 

Ms. BROWNER. Correct. 

Mr. BAKER. The scope of your jurisdictional reach is that if it is 

subject to any of those moving parts and there is a problem, the 

Clean Water Act protections should be invoked to cure that problem. 

Ms. BROWNER. I believe that the interpretation that the EPA, the 

Corps, and the Congress relied on for 30-some years is the proper 

interpretation. I am not here advocating an expansion of those authorities. 

Mr. BAKER. I understand. 

Ms. BROWNER. Just preserve what we have been relying on. 

Mr. BAKER. I understand. I am not suggesting you need an expansion. I think your definition is an expanded view. And I am 

merely trying to get a clear understanding of the moving parts of 

the water systems you think should be subject to the Clean Water 

Act. And I will move on, because we can’t get resolution here. 

Ms. BROWNER. With just a point of clarity, I am not suggesting 

to expand the definition. I am simply saying reaffirm the definition 

that has been relied on for 35 years. 

Mr. BAKER. Well, I am standing on the definition that comes 

from the debate on the House and Senate floors from the 1972 

amendment adoption in which the scope of argument was not beyond navigable waters, because there were navigable waters not 

then subject to the Clean Water Act. And the scope of the definition in that context was to make the act applicable to all navigable 

waterways, not bodies that were not adjacent to or abutted navigable waterways. And I can provide you that text. 

But, secondly and more importantly, even in the Rapanos case, 

when you read the holding carefully, one of the principal elements 

in the finding that led to the conclusion that that wetlands were 

subject to Clean Water Act’s jurisdiction was because one of the 

justices said you could literally go from ankle to waist-deep water 

directly into a navigable waterway. And it was because of the abutment of the wetlands to a navigable waterway that made jurisdiction attach. 

But navigable waterway was the block on which all of this jurisdictional claim was built. That is the troubling aspect in the current debate. By removing the term ′′navigable′′ from ′′navigable waterway,′′ we will now make waters of the United States literally 

any pond holding of water anywhere in the country, without the requirement of its ultimate relationship to a navigable waterway, as 

the principal regulatory component. 

That is why I was pressing on the subject of hydrologic cycle, because I believe your definition of hydrologic cycle and jurisdictional 

reach of the CWA is much broader than that which abuts to a navigable waterway. 

In any event, I asked the question about your view of the hydrologic cycle. If it were to rain, and that rain then becomes the recharge mechanism for the aquifer, shouldn’t that area where the 

587

rain fell be subject to clean water concerns? And the reason why 

I bring that up is the Chairlady earlier had in the year a very educational and interesting hearing on atmospheric deposition of mercury. If we are worried about pollutants, and we are worried about 

water quality, and we are worried about getting it right, shouldn’t 

be worried about mercury coming down in rainfall on a plain in 

west Oklahoma? 

Ms. BROWNER. As you might be aware, I tried very hard to regulate mercury while I was at the EPA. 

Mr. BAKER. I am fully aware. 

Ms. BROWNER. And this administration has not chosen to continue those regulations. I do share your concern about mercury. 

Mr. BAKER. And rainwater? 

Ms. BROWNER. No. Again, I want to be very clear, I am not advocating an expansion of the jurisdiction of the Clean Water Act. If 

the rain falls in what is currently covered under the Clean Water 

Act, a wetland, then I think that wetland should be protected 

under the Clean Water Act. It doesn’t mean someone can’t get a 

permit and go through the process, or it doesn’t mean where there 

are exclusions in the permitting process. They can’t take advantage 

of those. But if that rainwater falls in an area that is currently protected under the Clean Water Act, I would hope that all of us 

would agree to continuing to protect that area so that rainwater 

which is polluted, as you noted, can be cleaned by nature as it 

seeps through the wetland into the recharge area. 

Mr. BAKER. And this will be my final question, because I know 

my time has expired, but that presses the question a bit. And that 

is, if the wetland is not connected in some form or fashion, by tributary or other means, to the navigable waterway, in my view that 

is not a regulated wetlands. 

However, when someone makes a tractor tire in an agricultural 

field, and it is filled with water—and I have cases that I will provide the Committee, 46—when the tractor tire filled with water it 

became a regulated wetland. 

Secondly, construction projects under the Interstate between 

Baton Rouge and Lafayette, where there are isolated wetlands 

under the elevated expressway, those were maintained by law by 

the contractor during the course of construction as isolated wetlands. 

If the bad rain we don’t like falls on either of those two wetlands, 

your view would be that is subject to the Clean Water Act jurisdiction. You don’t think it is? 

Ms. BROWNER. If there is a connection to a water of the United 

States, it is covered. But you know, there are many ways those connections have to be demonstrated. And you know, it is obviously a 

scientific question. And there are experts in the field who do this. 

And it is quite possible—the hardest thing about this issue, and I 

fought this for the 20 years I have been involved in it, is that the 

least best indication of what is a wetland is water. We are far better off looking at what is the hydrology, what is the——

Mr. BAKER. Vegetation. 

Ms. BROWNER. —vegetation. 

Mr. BAKER. Porosity. I have spent a lot of time on it, and I have 

innumerable cases in my files which I intend to—and am in the 

588

process of providing to the Committee—where the hydrology, the 

porosity, vegetational quality, all of the elements that go into south 

Louisiana, where it is constructed of seven different Mississippi 

River deltas, most of which is beyond the Continental Shelf by 

depositional factor. We have 42,000 feet of squish. It is all put 

there by Mother Nature. It is not part of the Continental Shelf. But 

there is stuff that is there that does not constitute wetlands. 

Ms. BROWNER. I don’t doubt. I don’t doubt. 

Mr. BAKER. Well, the EPA does and so does the Corps, because 

people can’t get permitted. I yield back. 

Ms. JOHNSON OF TEXAS. Thank you very much. The Chair now 

recognizes Mr. Bishop. 

Mr. BISHOP. Thank you, Madam Chair. Thank you for your testimony, and welcome back to Capitol Hill. 

Ms. BROWNER. Thank you. 

Mr. BISHOP. I just want to make sure that your position is well 

understood by all of us. The current law, the Clean Water Act, defines navigable waters as, quote, ′′the waters of the United States.′′

and then the Army Corps of Engineers has developed a set of definitions which in effect flesh out that rather broad statement, and 

the EPA has done the same. And what you are indicating to the 

Committee is that it is your position that you believe we should 

continue to honor those definitions. 

Ms. BROWNER. Correct. 

Mr. BISHOP. You are not advocating any expansion of those definitions? 

Ms. BROWNER. No. 

Mr. BISHOP. Thank you. 

Now, the Rapanos case severely limits the definition of navigable 

waters, or defines navigable waters in a way that is much less expansive than current law. Can you walk us through the environmental implications if that becomes our guiding principle in terms 

of how we regulate waters? 

Ms. BROWNER. Let me just say one quick thing about the 

Rapanos case. It is a very confusing case, because Justice Kennedy 

sort of moves back and forth, if you will. On the technical aspect 

of the decision, there are five of them agreeing. And then on the 

procedural aspect, Justice Kennedy joins with another four, and so 

the case gets sent back. So it is a confusing case. 

The concern that I have with respect to Rapanos is that there are 

waters of the U.S. that are—that would have historically been protected may no longer be protected. It could depend in part on how 

the administration chose to read Rapanos. 

The simplest thing to do is for Congress to clarify that those 

things which we have been protecting under the Clean Water Act 

for 30-some years we will continue to protect. The real day-to-day 

problem if we don’t continue these protections is that we could see 

changes, not just in the wetlands program in terms of what is protected, but potentially changes in terms of which water bodies are 

protected from discharges, pollutants, that then get into our drinking water supplies and have to be cleaned up. 

Mr. BISHOP. Okay. Thank you very much. 

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I have a bill that I am hoping that will get a fair hearing in this 

Congress called—I need a better title—but it is called the Raw 

Sewage Community Right to Know Act. And——

Ms. BROWNER. A good one. 

Mr. BISHOP. If you can come up with a title, I would appreciate 

it. But that is—what we are hoping to do with that is create a 

standard for notification of the kind of discharges that right now 

take place without any form of national standard for what the notification requirements are. 

Ms. BROWNER. I assume what you are talking about are combined sewer overflows. 

Mr. BISHOP. That is indeed what I am talking about. 

Ms. BROWNER. If I might, we worked with Congress to pass a national Safe Drinking Water Act during the Clinton administration. 

And one of the things that we were able to secure in that bill was 

a right-to-know program. So people now receive on an annual basis 

from their drinking water company a list of what pollutants were 

found, where they had exceedances. And you might want to take 

a look at that, because I think it has been a very successful public 

right to know. 

Mr. BISHOP. Thank you very much. Madam Chair, I yield back. 

Thank you. 

Ms. JOHNSON OF TEXAS. Thank you very much. Congressman 

Coble. 

Mr. COBLE. Thank you, Madam Chair. 

Ms. Browner, good to have you with us today. Ms. Browner, in 

the original drafting of the Clean Water Act, Congress carefully 

chose to divide regulatory authority between the Federal Government and the States, recognizing the vital interests that the States 

have in protecting their own waters. 

Would H.R. 2421 undo this partnership, and therefore transfer 

virtually all regulatory authority over to the EPA and the Corps? 

Ms. BROWNER. No. It does not change the partnership between 

the States and the Federal Government. It simply codifies the definition, if you will, that we have relied on for 32 years. 

Mr. COBLE. Well, is this bill an appropriate reorganization of authority, considering the structure of the original Clean Water Act 

and the States’ knowledge of their own water issues? 

Ms. BROWNER. This bill doesn’t change the relationship, if you 

will, between the Federal and State governments. I should have 

noted in my testimony 34 States also filed amicus briefs in the 

Rapanos litigation, taking the same position as the former Administrators, which is we wanted to preserve the level of protections. 

I think there is absolutely no State in the country that doesn’t 

share a water body with at least, you know, one other State. 

My home State of Florida, we share 18 different rivers with our 

neighbors to the north. And so you need a Federal program and 

you need a Federal-State partnership if you are going to be able 

to provide a level of protection. And nothing in this legislation 

would change that. 

Mr. COBLE. Well, let me ask you this Ms. Browner. This may be 

a quasi-hypothetical question. In North Carolina we have a vast 

number of wetlands, particularly in the east, as well as river basins 

and tributaries that drain from the Appalachian and the Blue 

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Ridge Mountain range. Much of this runoff comes through the district I represent via the Yankton River Basin. 

What is your comment—Strike that. Let me ask it a different 

way. I think you and I may not be in agreement, but we can disagree agreeably, however. 

Ms. BROWNER. There you go. 

Mr. COBLE. Let me ask you to comment about the effect of federalizing waters, if in fact that would be the case in the United 

States, particularly as it pertains to runoff from higher elevations. 

Ms. BROWNER. I can’t imagine why anyone would want to federalize runoff. I simply can’t. You need the Federal and State government working together if you are going to deal with the ongoing 

issues of what we call surface water pollution. So the runoff as you 

are referring to frequently ends up in a river or a lake or a stream, 

a surface water. It may on occasion move through a wetland into 

the surface waters or through a wetland into a groundwater. But 

it requires both Federal and State actions to protect those surface 

waters and those groundwaters. 

I don’t know why you would have one or the other entity with 

exclusive responsibility. We have been very, very successful in this 

Federal-State partnership. 

Mr. COBLE. Well, I thank you for that. I think much of this is 

very likely, Madam Chairman, subject to interpretation. I think 

some of us believe that this is going to probably be over-federalizing. Perhaps others think that perhaps will not be the case. So 

that is the beauty of a hearing such as this. We can probably get 

to the core of it. 

Ms. BROWNER. Madam Chair, it might, just quickly to remind 

people of how the program works. EPA delegates the day-to-day operation of permitting to States. I can’t speak to how many States 

have those delegations today. I can tell you when I was at EPA, 

we were very aggressive in turning over the operation of the permitting programs, both wetland permitting authorities and 

NPDES, or discharge permitting authorities. 

You know, the idea of quote, ′′federalizing,′′ one, I don’t think it’s 

a good idea. But let’s say you went down that path; you would then 

have to provide the resources to EPA to handle all of those permitting programs that the States are currently handling. And I can’t 

imagine anyone intends to do that. 

And so I think the Clean Water Act, the Clean Air Act, a number 

of our Federal environmental laws have very wisely—Congress has 

very wisely said, EPA, you look at the big picture. But then when 

it comes to day-to-day operation, if the States have their State authority, if they have the resources, if they have the personnel and 

the expertise, let them do it. 

Mr. COBLE. Thank you for that. 

Madam Chairman, do you award credit for yielding back time before the red light illuminates? If so, I yield back. 

Ms. JOHNSON OF TEXAS. Thank you very much, Congressman. 

The Chair recognizes Congressman Larsen. 

Mr. LARSEN. Thank you, Madam Chair. Just a note for Mr. 

Bishop. It is a rare bill in Congress that actually describes what 

it does. That is why that title is a good one. 

591

Ms. Browner, thanks for helping us out today. As I understand 

the Scalia reasoning versus the Kennedy reasoning on Rapanos, 

Scalia basically said there is a line to be drawn. Over this line is 

navigable water and then on the other side is nonnavigable. What 

Kennedy said is that there is some confusion about what is navigable or not, but there is a—he called it significant nexus test. Is 

that pretty accurate? 

Ms. BROWNER. Correct. 

Mr. LARSEN. What I didn’t get from our staff memo was what are 

you saying Scalia used to determine, to draw that line? 

Ms. BROWNER. Well, Scalia starts by looking to Webster’s Dictionary for a definition of wetlands. I do not agree with that. I 

think Webster’s definition is something that has water. And as I 

said previously, water may be the least—presence of water may be 

the least best indicator of whether or not something is a wetland. 

So you have to go to where his reasoning starts, and it gets you 

to this point where waters that are currently protected would no 

longer be protected. 

You know, I think this is more logical than perhaps it can appear 

at first glance. I mean the waters—the fact that for 32 years everyone could agree on what was the scope and, you know, there 

weren’t any real debates about that, is a pretty good test in my 

mind of a successful definition. 

Mr. LARSEN. Let me just pronounce it the SWANCC decision. 

Ms. BROWNER. SWANCC is how it is pronounced. 

Mr. LARSEN. The SWANCC decision. 

Ms. BROWNER. Sounded better than SWANCC. 

Mr. LARSEN. At least in the staff memo we have, it discusses a 

footnote in which the majority, the 5-4 majority—well, actually 

Rehnquist opines that Congress must have intended that there be 

some nexus to actual navigation, but the majority referenced the 

legislative history, and noted Congress intended the phrase 

′′navigable waters′′ to include at least some waters that would not 

be deemed navigable under the classical understanding of that 

term. That was a 2001 decision. 

What then informed the Court in 2006? 

Ms. BROWNER. I think the change in the makeup of the Court. 

Mr. LARSEN. Okay. Perhaps I was getting there. So what did 

Scalia mean by intermittent or ephemeral waters? That is the waters that would be on the other side of the line that would not be 

included as navigable water? 

Ms. BROWNER. I am not sure what he means. There are scientific 

definitions which I would be happy to have someone provide to you 

about what those terms mean. 

Mr. LARSEN. I would appreciate that. And I would have the staff 

follow up on that question for me. I would appreciate it. 

Ms. BROWNER. What is complicated in Rapanos, you have to remember, are what are the facts, which is there clearly was a connection in the most obvious sort of way at one point in time, and 

then a berm gets put. 

Mr. LARSEN. In the actual case. 

Ms. BROWNER. Yes, in the actual case. So this manmade structure comes along and suddenly we are going to have a different inVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00619 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
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terpretation of what is protected because of a manmade structure? 

That is what I think is particularly troubling. 

Mr. LARSEN. Uh-huh. So in moving forward perhaps on Mr. 

Oberstar’s bill, the issue—I mean what is the issue facing us if 

we—what do we have to do if we are going to—if the majority of 

the Congress, regardless of how the majority is made up in Congress, is going to fix this to be responsive to the Supreme Court? 

Because essentially we have to do something that is responsive to 

the Supreme Court. 

Ms. BROWNER. I think you could, obviously, do nothing. The problem is that with the SWANCC and the Rapanos decision there is 

an ambiguity. A lot of people can read that ambiguity—different 

people can read it different ways. And I think that clarifying that 

the original jurisdiction is what the Congress intends to be carried 

forward is the simplest thing to do. And that is essentially what 

Oberstar does. If you don’t clarify that, I suspect there will be permitting delays and there will be litigation. So a clarification I think 

for those people who seek permits could be very valuable. 

Mr. LARSEN. Just to restate what we believe the original intent 

of the CWA is? Of the Clean Water Act? 

Ms. BROWNER. To protect the waters of the U.S. 

Mr. LARSEN. Yeah. 

Ms. BROWNER. I mean it is very clear. 

Mr. LARSEN. All right. Thank you. 

Ms. BROWNER. Thank you. 

Mr. LARSEN. Thank you, Madam Chair. 

Ms. JOHNSON OF TEXAS. Thank you very much. Congressman 

Brown of South Carolina. 

Mr. BROWN. Thank you, Madam Chairwoman. 

Ms. Browner, glad to have you here today. Let me see if I can 

get my questions together. Here I am. I apologize. You stated that 

H.R. 2421 defines ′′waters of the United States′′ and they are nearly identical to the definition promulgated in rules and used by the 

Corps and EPA for over 30 years. 

However, when the text of the rule you mentioned is compared 

to the text of the bill, there is substantial differences in the wording, including major omissions and changes that would expand the 

scope of Federal jurisdiction under the Clean Water Act to all waters and all activities affecting those waters to the fullest extent 

under the Constitution. Neither current law nor the Corps’ current 

regulations say that. Further, the bill’s definition leaves an important exemption in the regulation for prior converted croplands and 

waste treatment systems. 

If you would please explain how you can characterize the bill’s 

definition as nearly identical to the definition promulgated in the 

Corps and EPA’s rules. 

Ms. BROWNER. Mr. Oberstar’s bill simply picks up the definition 

that has been relied on by EPA and the Corps for the last 30 years, 

the regulations which EPA and the Corps have adopted pursuant 

to the Clean Water Act, and that definition will remain in effect. 

There is nothing in this legislation that changes those regulations. 

So when people talk about some of the exemptions that EPA and 

the Corps have seen fit to put forward over the years, there is 

nothing in this that changes those exemptions. This bill is not 

593

amending those sections that EPA and the Corps may have relied 

on in putting forth those exemptions. 

Mr. BROWN. So I guess the bottom line is you feel like that this 

bill does not further encroach on undefined wetlands as we see 

them today. 

Ms. BROWNER. I do not think it further encroaches. I don’t know 

that I would use the word ′′encroach,′′ but——

Mr. BROWN. And all the exemptions that have been identified in 

the past will be continued; the farming practices and some of the 

other issues? 

Ms. BROWNER. Correct. I should be clear, I don’t get to speak for 

the current administration. That is probably obvious. And they 

may decide, if the bill passes, to read it and change some regulation. I will tell you if I were sitting at the EPA, I would look at 

this bill and I would say it is a recodification of what EPA has understood to be the definition for 32 years, and therefore the regulations would be maintained. 

Mr. BROWN. Madam Chair, if I might just give one example. In 

my region in South Carolina along the coast, we have lots of isolated rice fields, I guess for better word, which means they are 

diked-in wetlands, but they don’t have a traveling path to the navigable waters unless there are reasons to lower the levels within 

that confinement. How would this bill——

Ms. BROWNER. If they are not currently regulated, they would 

not be regulated. If they are currently regulated by Federal law, 

then whatever that permitting program is would continue. I don’t 

know what the State law implications might be. I don’t know what 

your State law is in terms of those areas. 

Mr. BROWN. Okay. Thank you very much. Thank you, Madam 

Chair. 

Ms. JOHNSON OF TEXAS. Thank you very much. The Chair now 

recognizes Congressman Baird. 

Mr. BAIRD. Administrator, thanks for being here and for your 

many years of service to this country. 

Ms. BROWNER. Thank you. 

Mr. BAIRD. As we look at the challenge of trying to protect clean 

water for all the things that the Clean Water Act was meant to, 

when I hear from folks it is not just a matter of who has jurisdiction over what, which is really the focus of the bill we are kicking 

around today, but it is also the permitting process itself which can 

be lengthy, which can be idiosyncratic, which can sometimes be inconsistent with one agency telling an individual landowner or business to do one thing and another saying another. 

So for me, I think there would be a great deal of less trepidation 

or concern about this particular language in this bill if the process 

at the permitting agencies were itself reformed. 

Can you give us any insights from your experience, if you could 

wave the magic wand and improve the permitting process across 

all the various agencies that could be impacted by the regulatory 

process, what kind of things would you recommend? 

Ms. BROWNER. Well, we are talking about two different permitting processes under the Clean Water Act. We are talking about 

402, which is the NPDES program, and then we are talking about 

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404, which is managed by the Corps, and is the wetlands permitting. 

I think a very important thing to do is to turn over the day-today operation of these permitting programs to State programs that 

have the resources and the qualifications to handle them. You 

know, the States—I come from State government originally. I think 

States will generally make a very, very suitable decision. You need 

to retain Federal oversight, because you do have these instances, 

as I mentioned earlier, where waters are shared. 

You know, Florida shares rivers with Alabama and Georgia. And 

so you need some sort of Federal oversight. 

Ms. BROWNER. But I do not know, as of today, how many of these 

permitting responsibilities have been delegated to individual 

States, but I think that that has certainly proven, in many instances, to be successful. 

Secondly, I certainly think where there are well-recognized exemptions and practices, that will not require a permit. On that, we 

can all agree. We did a streamlining initiative when I was at the 

EPA, and we articulated a set of those. I do not know if those have 

been maintained. I presume they have. 

Look, practices change in ways in which development can occur. 

Ways in which dredging and filling can occur also change, and so 

it is the responsibility of the Agency to sort of keep up with what 

are those changes and whether or not any of those practices might 

fit into—it is not really an exemption. There is a legal process that 

gets sort of created in a regulation, so you do not have to go 

through a permitting decision individually, but nevertheless, you 

know, those activities can be on a list and be respected as activities 

that the Agency thinks can be handled in a way that are protective 

of the Nation’s waters. 

Mr. BAIRD. Do you——

Ms. BROWNER. The other thing I would just say is, you know, 

throughout my tenure at the EPA, we heard from many Members 

of Congress of situations that appeared to be very, very troubling. 

You know, we always did our best to fully understand those situations, and there were situations where there were some troubling 

matters, but in the vast majority of them, what was going on was 

the Department, the Agency, the State thought that ′′no′′ was the 

right answer, that you had finally found a resource, and the kind 

of impacts that the permitter was seeking were just inappropriate 

under the law. The Agency is not free to act outside of the law—

under the law. So, you know, as people talk about various stories, 

I think it is really important to have all of the facts. 

Mr. BAIRD. I think that is true, and my guess would be that almost everybody in this body has had some calls from people who 

want us to intervene and try to move the Agency in one direction 

or another, and as you looked at the case, you thought they just 

got a ′′no′′ they did not like, but at the same time, my guess would 

also be that many of us have heard several horror stories of people 

who are trying to do fairly reasonable things. 

We had a meeting on permit streamlining in my district, and one 

old-time guy, a farmer, got up, and he said, ′′You know, sometimes 

I think agencies could never be on ’Who Wants to be a Millionaire’ 

because they could never say, ’That is my final answer.’′′

595

Ms. BROWNER. Well, I think the problem is agencies frequently 

say, ′′It is my final answer,′′ and no one wants to hear it as their 

final answer. ‘‘No’’ is not a word that many people like to hear. 

Mr. BAIRD. The other question arises when you have got multiple 

agencies with multiple jurisdictions for multiple pieces of legislation, all of which have a piece of the pie. 

Any quick comments before my time runs out on that? You have 

got EPA, NPDES, plus possibly State and local agencies. 

Ms. BROWNER. Well, the State and local authorities stem from 

the Federal authority, so it is for the EPA to delegate and to oversee it. I think, certainly during my tenure, we did a pretty good job 

of working across agency lines. I mean it is not a clean water example, but with the passage of the Food Quality Safety Act, I mean 

there was a huge amount of cooperation that had to go on between 

the Department of Agriculture and the EPA, and it went on, you 

know, respectfully and fairly successfully. 

You know, I cannot speak for this administration what level of 

cooperation is going on. There will be differences, but that is why 

you have a White House. That is why you have a President. You 

know, they ultimately get to decide between the two views that departments or agencies might take. 

Mr. BAIRD. I appreciate the input. 

I will just close by saying that I asked similar questions yesterday, and I think if we as a Committee address the issues of permit 

streamlining, efficiency and fairness, there will be a lot less concern about some of the other matters addressed in this legislation. 

Thank you for your services. 

Ms. JOHNSON. Thank you very much. 

Congressman Westmoreland. 

Mr. WESTMORELAND. Thank you, Madam Chair. 

Ms. Browner, how long were you a public servant with the State 

and with the Federal Government? 

Ms. BROWNER. In public office or—I also worked as a staffer. 

Mr. WESTMORELAND. Just working. 

Ms. BROWNER. Working for government? Gosh, more than 20 

years. I have not added it all up. I was really young when I started. 

Mr. WESTMORELAND. I understand. You still are. 

Ms. BROWNER. No, I am not. 

Mr. WESTMORELAND. Now you are a principal of the Albright 

Group? 

Ms. BROWNER. Uh-huh. 

Mr. WESTMORELAND. What do you all do? What does the Albright 

Group do? 

Ms. BROWNER. At the end of the Clinton-Gore administration, 

Secretary Albright, myself and several others formed a consulting 

firm. We work with companies outside of the United States—American companies, mostly American companies—when they have 

problems outside of the United States. 

I also serve on a number of nonprofit boards. I chair the National 

Audubon Board. I am a founding board member of the Center for 

American Progress. I just joined the League of Conservation Voters 

with your former colleague, Mr. Boehlert, and the list goes on. 

Mr. WESTMORELAND. So your company mainly works out of the 

country? 

596

Ms. BROWNER. Most of our representation—I am not a registered 

lobbyist. I do not lobby. 

Mr. WESTMORELAND. Okay. 

Ms. BROWNER. I do not have clients with matters—I might have 

clients who might have matters before the United States Congress, 

but I do not represent them. I leave that to my husband. 

Mr. WESTMORELAND. But environmental issues, is that what the 

issues are that you are involved in? 

Ms. BROWNER. No, not necessarily. 

Mr. WESTMORELAND. A wide variety? 

Ms. BROWNER. A wide variety. 

Mr. WESTMORELAND. Okay. I want to ask you a question about 

the savings clause, if I could; and I am assuming you have read 

the bill and have read the savings clause. 

Ms. BROWNER. Uh-huh. 

Mr. WESTMORELAND. It has been suggested by supporters of the 

bill that the savings clause, section 6, should address the concerns 

of farmers, forest landowners and others who benefit from certain 

statutory exemptions enumerated in the clause. Given the limited 

scope of these exemptions, however, I fear that this legislation will 

sweep many of these agricultural and forestry activities into the 

scope of the Clean Water Act regulation simply because they are 

conducted in or are simply near some ditch, swell, gully or ephemeral stream that will now be deemed ′′a water of the United 

States.′′

Let me raise some specific examples, if you would consider them, 

and perhaps you can offer your views on how the savings clause 

benefits any of these activities. 

It seems that the list of statutory exemptions in the savings 

clause is incomplete because it includes only agricultural return 

flows, but not the agricultural storm water discharges. Agricultural 

return flows are exempted from the clean water regulation by exclusion by the statutory definition of the ′′point source′′ and by an 

additional permit provision as provided in 4201. 

Ms. BROWNER. 402. 

Mr. WESTMORELAND. 402, that is right. 

Agricultural storm water discharges, however, are exempt only 

by virtue of being excluded from the ′′point source′′ definition. Nevertheless, equally exempt, can you fathom any reason why the agricultural storm water discharges have not been listed as a specific 

exemption in the savings clause? 

Ms. BROWNER. I think there are a couple of questions, so can I 

kind of go through them? 

Mr. WESTMORELAND. Sure. 

Ms. BROWNER. Your first question is—the gist of it is: Are the 

current exemptions in any way shape or form changed by this legislation? As I said previously, I do not believe so. 

Then I think your second question is: Does the savings clause in 

some way or another preserve some exemptions, existing exemptions, and delete others? 

Well, if that is your concern, get rid of the savings clause. You 

do not need, in my opinion, a savings clause, because the bill is 

very clear. It is amending one section; it is not amending the secVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00624 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
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tions that the exemptions fall under, so those exemptions are retained. 

I do not fully understand what the logic of the savings clause 

was, but I suspect it was an effort to speak to some concerns that 

had been raised, but I do not actually think you need a savings 

clause. 

Mr. WESTMORELAND. So you think that it would not hurt to put 

the same exemptions that are in the Clean Water Act now into this 

bill? 

Ms. BROWNER. Well, I am not sure that—I will have to say that 

I am not sure your premise is accurate. I am not sure there actually is an exemption for agricultural point source discharges from 

the 402 permitting process. I would suspect there is not, but I do 

not know for a fact. 

Mr. WESTMORELAND. Okay. Let me ask you this: In the 

Corps——

Ms. BROWNER. I do not think under any scenario—the reason I 

am here supporting this is, it simply reaffirms what we have been 

doing for some years. 

Mr. WESTMORELAND. So you do not have a problem with using 

the same language? 

Ms. BROWNER. I have a problem if you change the exemptions. 

If you add a few more practices to the list of exemptions in this 

bill, I will oppose the bill. 

Mr. WESTMORELAND. Okay, but even if we add——

Ms. BROWNER. That is probably what you want. 

Mr. WESTMORELAND. Well, no. Even if they are the ones that are 

in the Clean Water Act now? 

Ms. BROWNER. But I think you are asking me about one that 

might not be in the Clean Water Act now. We are moving back and 

forth. 

Mr. WESTMORELAND. Let me rephrase my question. Let me rephrase my question. 

If we put exactly what is in the Clean Water Act now in this bill 

as it relates to farming, ranching, mining—agricultural uses—you 

would be okay with it? 

Ms. BROWNER. Any current exemption. 

Mr. WESTMORELAND. I said, as to exactly what is in there now. 

Ms. BROWNER. But you said ′′exactly what is in there,′′ and I said 

′′exemptions,′′ and exemptions are found in the rules. 

Mr. WESTMORELAND. Okay. 

As to the Corps and the EPA definition of ′′navigable waters,′′ do 

you know why they never used the word ′′navigable′′? 

Ms. BROWNER. I was not in office in 1972. 

Mr. WESTMORELAND. I understand. 

Ms. BROWNER. I do not know why. 

Mr. WESTMORELAND. Did you ever question that, being the Administrator, why the bill said ′′navigable waters′′; yet, the Corps’ 

and the EPA’s regulations never mentioned the word ′′navigable′′ or 

anything about navigation or anything else? 

Ms. BROWNER. Well, I think it is important to remember that the 

law says ′′the waters of the U.S.′′ and that the regulations were intended to put a fine point on exactly what was protected and how 

598

it would be protected. It is very common that an EPA regulation 

does not—because it is going down to another level of detail——

Mr. WESTMORELAND. I understand. 

Ms. BROWNER. —it might not use a word. 

Mr. WESTMORELAND. Excuse me. I understand, but since the 

term ′′navigational waters′′ was used in the bill 81 times and it 

talks about the navigational waters and the definition of the Corps 

and the EPA says the term or the definition for ′′waters of the 

United States,′′ are you saying those are interchangeable? 

Ms. BROWNER. I am not sure I understand your question. 

Mr. WESTMORELAND. ′′navigable waters.′′ what is the definition to 

you of a ′′navigable water′′? 

Ms. BROWNER. It does not really matter what my definition of it 

is. It is what the Congress said and how that has been interpreted 

and how that has been supported over 35 years; and I think that 

is pretty clear. 

If I might, Madam Chair, just add one point, I think the real 

test, and perhaps what we should all be looking at, is, has this law 

provided us with a program that has led us toward cleaner water 

in this country? That is not to suggest that the job is done and that 

all of our rivers, lakes and streams are pristine—they never will 

be. But we have certainly made real progress when it comes to 

cleaning up our surface waters, and that has been, in part, because 

we have a definition that has provided the agencies with the ability 

to regulate activities that impact those rivers, lakes and streams 

in a detrimental manner. 

Ms. JOHNSON. Thank you very much. 

I have a question or so. 

Currently, under the Rapanos guidance, some point sources that 

may have been governed by the Clean Water Act at one time may 

no longer be required to get a 402 permit. 

What are the likely implications to our efforts to protect water 

quality if the point sources are excluded? 

Ms. BROWNER. Well, the most significant progress we have made 

in protecting our Nation’s waters is through the point source program, without a doubt, through the 402 permitting program. If 

Rapanos is interpreted by the administration to change that program to limit the ability of the EPA in the States because the 

States use this authority to require reductions in point source or 

discharges from pipes, then we could see, and probably would see, 

an increase in pollution loadings in certain water bodies. It would 

be bad for water. 

Ms. JOHNSON. Now, currently about, I guess, 30 States have 

State water pollution laws that are less protective, actually, than 

they would be under the Clean Water Act. 

If no changes are made to the Clean Water Act under this 

Rapanos guidance, is it likely that all of our States will strengthen 

their laws to protect these waters that are no longer protected by 

the Clean Water Act? 

Ms. BROWNER. I do not know that I would—I would be concerned 

that not all States would actually strengthen their State laws. So 

rather than having sort of this broad Federal level of protection, 

you would have varying degrees of protection; and what would then 

happen is a downstream State would, no doubt, turn around and 

599

sue the upstream State because their lower water quality standards were suddenly endangering the drinking water or the oyster 

beds or, you know, some other fishing activities. 

I think that you want a strong Federal floor for protection of 

water because, you know, we are one country—we travel, we move 

around, our commerce moves around. If States want to choose to 

go further in protecting their rivers, lakes and streams, I believe 

they should be able to. 

You know, the Florida Everglades is a very different place than 

some of your water resources in Texas, and therefore, Florida 

might want to have a tougher phosphorus standard than, perhaps, 

another State might want to have; but you still need this Federal 

infrastructure to ensure sort of a level playing field between the 

States. 

Ms. JOHNSON. Thank you very much. 

Congresswoman Drake. 

Mrs. DRAKE. Thank you, Madam Chairman. 

Thank you, Ms. Browner, for being here today. 

I hate to keep asking the same question, and I have heard you 

say very clearly that this is not expanding, it is simply defining 

and that we are going to do what we did before. What has been 

confusing to me is that there are many people who think this language will encompass things that were previously never covered by 

the Clean Water Act, whether it is groundwater, whether it is roadside ditches or things of that nature. So it has been interesting 

hearing you and hearing, you know, what I have heard about it. 

I am wondering if you think there could be different language 

suggested to make sure it is doing exactly what you say but different from how people are interpreting it. 

We listened to the little exchange between you and Congressman 

Westmoreland where there was a lot of disagreement over what 

does that word actually mean, what exclusion and where is it? So 

I think that is part of what the public is dealing with and with 

what, I think, Congressman Baird just said, that the reason the 

public is so alarmed is because they do not feel the system is efficient, they do not feel the system is fair. 

There are multiple agencies and people who do everything exactly like they think it should be done, and a year later, you have 

someone at the EPA come back, and all of a sudden, they are in 

court; and now they have been in court for years and years. So the 

public does not feel they have been treated fairly. 

So while we are having this discussion, I am wondering—because 

what I am hearing and what you are saying are two different 

things. So is there a problem in this bill that needs to be clarified, 

maybe, with language that is much more specific? 

Ms. BROWNER. I actually think this bill does exactly what Mr. 

Oberstar intends it to do, and I will be honest with you. To start 

adding a lot more language will only lead to confusion as opposed 

to resolving confusion. That is my opinion. 

Mrs. DRAKE. Well, one of the questions about it is that the Clean 

Water Act does not use the term ′′activities′′; it uses ′′discharges,′′

but this bill, the way it is currently drafted, does reference the regulation of activities. 

600

I mean, why is that? If it is just redefining, if it is the same 

thing, why wouldn’t you use the same terminology that was used 

before? 

Ms. BROWNER. I would be happy to look at the section. I do not 

know which section you are in. 

Mrs. DRAKE. This is dealing with——

Ms. BROWNER. Do you know what page? 

Mrs. DRAKE. Yes. I am not looking at the——

Ms. BROWNER. I will be happy to look at it after the fact. 

Mrs. DRAKE. Yes. It deals with ′′activities′′ in the actual bill. So 

that is a question and a concern as to why it would be ′′activities.′′ Then my last question is: Will there be any increased workload 

either to the Army Corps of Engineers or to the EPA under the language of this bill? 

Ms. BROWNER. I cannot speak to what the current administration 

will do. 

I will tell you, if I were at the EPA, this would not increase our 

workload. In fact, it would probably decrease the workload because 

you would have a level of predictability. 

The problem with Rapanos is, there is a level of uncertainty; and 

that is going to lead to more litigation, which obviously means 

more annoyance to the public, more delays to the public, but also 

more work for the Federal agency. 

Mrs. DRAKE. Okay. Thank you. 

Ms. BROWNER. Thank you. 

Mrs. DRAKE. I yield back, Madam Chairman. 

Ms. JOHNSON. Thank you very much. 

Mr. McNerney. 

Mr. MCNERNEY. Thank you, Madam Chairman. 

Ms. Browner, I have heard significant feedback from constituent 

farms that the Oberstar bill will, in fact, negatively impact their 

day-to-day operations all the way to their saying, ′′If this law gets 

passed, we are going to have to close our farms down.′′ Now, I would like you to address that concern in a way that 

would make them comfortable. Specifically, do the savings clauses 

in section 6 offer them some sort of protection or are there other 

provisions that would help out? 

Ms. BROWNER. All of the agricultural activities that are currently 

allowed under the Clean Water Act can continue; nothing in this 

changes. And whether those activities are being undertaken because there are exemptions in the regulations or because there 

have been interpretations of the underlying statute, nothing in this 

changes. The sections that the agricultural community relies on for 

their exemptions are not amended by this bill. 

You know, obviously having run the EPA for 8 years and having 

run a large State agency prior to that and having worked on the 

Hill as a staffer, this debate about wetland protection has gone on 

for a really, really long time in this country; and it is probably 

going to go on for a really long time. 

I want to be clear. This bill, Mr. Oberstar’s bill, in my opinion, 

does not change the playing field. Everybody is going to be in just 

the same place as they were before in terms of what they can do, 

what is permissible and what needs a permit. Remember, there is 

always a permitting option that is available, but this is not changVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00628 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
601

ing. If you do not need a permit today, you are not going to need 

a permit after this passes. 

Mr. MCNERNEY. Well, there must be some basis for their concern. Would you be able to address that or—I mean, they want an 

explanation. 

Ms. BROWNER. Well, I think there are—and I do not want to 

speak to your particular constituents. I do not know them. I can 

simply tell you, from my experience, there are organizations that 

have for the last 15, 20 years gone about changing how our wetlands and how our surface waters are protected and have gone 

about minimizing the protections, and I think some of that effort 

is caught up in this discussion, but as I said before, for individual 

parties, what they are allowed to do and what they need a permit 

to do does not change. 

Mr. MCNERNEY. Okay. Thank you, Madam Chairman. 

Ms. JOHNSON. Thank you very much. 

I think Congresswoman Drake had a clarification. 

Mrs. DRAKE. I am sorry, Madam Chairman. 

Ms. JOHNSON. Did you have a clarification? 

Mrs. DRAKE. Yes, I did, and thank you very much. 

If you would, look at section 4 on page 8 and on line 14 where 

it is defining waters of the United States, and on line 14, it says 

′′or activities affecting these waters.′′

Ms. BROWNER. I have not found it yet. Hold on. 

Mrs. DRAKE. Section 4. Page 8. Line 14. 

Ms. BROWNER. Got it. 

Mrs. DRAKE. The question was because, in the Clean Water Act, 

it used ′′discharge,′′ not ′′activities.′′ so that was another question 

of what does that actually mean? 

Ms. BROWNER. I am happy to answer the question, but I need the 

current law in front of me. I need to understand what section you 

are referencing versus what section this is speaking to. 

No doubt, the Clean Water Act uses the word ′′discharge.′′ this 

may not be amending the section that you are talking about. I cannot do this without all of the sections. I am happy to do it after 

the fact. If you want to send them to me, I will be happy to look 

at them, but the fact that the word ′′discharge′′ appears somewhere 

in the Clean Water Act and does not appear here——

Mrs. DRAKE. Well, I think the difference is ′′activities′′ does not 

appear in the Clean Water Act, and in this it does; and so it is 

like—is this expanding the current, where you are saying it is not 

redefining, but that it is simply clarifying the definition? 

So, Madam Chairman, I think, if we could, let us submit that to 

her——

Ms. BROWNER. I would be happy to look at it for you. 

Mrs. DRAKE. —and ask her to do that. 

Thank you, Madam Chairman. 

Ms. JOHNSON. Thank you. 

Congresswoman Fallin. 

Ms. FALLIN. Thank you, Madam Chair. 

Thank you so much for being here today and for lending your expertise and tremendous background to this important topic. And I 

appreciate your comments about supporting cleaner water for the 

United States; I think we can all support that. 

602

And I think we have made some progress on your statement 

about permitting in the States being best left done by the States, 

and your concern that you stated that you support States’ being 

able to permit whenever possible and whenever they have the systems in place that need to be there; and then, also, your express 

concern about any unfunded Federal mandates and the lack of 

money that might come with that when it comes to——

Ms. BROWNER. Well, I actually did not say that, just to be clear. 

Really, I am not concerned about that. 

Ms. FALLIN. Well, I am when it comes to——

Ms. BROWNER. But States charge for permits. 

Ms. FALLIN. Right. Right. Well, passing down things to States 

and then States’ not having the money to do what the Federal law 

requires——

Ms. BROWNER. But the States in the instance of the Clean Water 

Act ask for the permission. It is not just handed down to them. 

They seek it. 

Ms. FALLIN. Right. Right. 

What I wanted to ask you was—you said you support permitting 

whenever possible. It has proven to be successful, and I agree with 

that, too. But I have been contacted by some major groups in my 

States, some that have authority over water in Oklahoma—some of 

the farmers, the ranchers, the ag community—who have expressed 

concern about the change of language in this piece of legislation 

from striking ′′navigable waters′′ to ′′waters of the United States.′′ My industry leaders state that the EPA already has full jurisdictional rights, and they have been pretty much opposed to changing 

that language about the ′′navigable waters′′ to ′′waters of the 

United States′′ and believe that this would impose upon our States’ 

rights. Some have said, in light of imposing upon the States’ rights, 

that it could result in massive permitting delays on projects, that 

it could preempt State and local rights and that it also could cause 

some unfunded mandates. 

So, in light of your general support that States have the right to 

do the permitting and of making sure that States have the resources to uphold the Federal law and the permitting itself, when 

we talk about the language in this bill encompassing water that 

has never previously been subject to the Clean Water Act by permitting requirements, including the groundwater, the roadside 

ditches, the waste treatment ponds, prior converted croplands, 

ditches, drains, pipes that convey wastewater to sewage treatment 

plants——

Ms. BROWNER. Can you refer me to the section of the bill that 

you are quoting——

Ms. FALLIN. Well, I am not quoting it. I am talking about——

Ms. BROWNER. —just so I can read it? It would be really helpful. 

Ms. FALLIN. I will get that for you. I am talking about the general summary of the bill that I am looking at. 

Ms. BROWNER. Oh, okay. 

Ms. FALLIN. I am just talking about, conceptually, do you think 

it is necessary? To accomplish the goals of just having cleaner 

water and having a permitting process that works, could we just 

leave the language as ′′navigable waters′′ versus changing it to ′′waters of the United States′′ and accomplish the same goals? 

603

Ms. BROWNER. Well, a couple of things if you do not mind. 

I think a number of the activities you mentioned are not in the 

bill. I will go back and read it carefully, but I do not think they 

are in the bill, so I think we need to be careful about what is in 

the bill and what is not in the bill. 

I support what is in the bill. I believe, after a careful reading of 

this bill, that it is a reaffirmation of how the Clean Water Act has 

been interpreted through the better part of three decades. 

With respect to the States, I think if a State wants to take responsibility under the Federal law, as passed by Congress, to handle the permitting on a day-to-day basis, that is a good thing. Obviously, because they are exercising the Federal authority, not State 

authority, it is absolutely the responsibility of the EPA to ensure 

that that Federal authority granted by Congress to the EPA and 

now down to the State is handled accordingly. 

It is not an unfunded mandate. Not all States have sought the 

authority; some States have and some have not. It is an individual 

State decision. When they seek the authority, they generally attach 

a permit fee so that they can cover some parts of the costs associated. I think more States have actually sought the discharge permitting authority, the section 402 authority, than the section 404 

authority, but certainly some States have sought both of those. 

Ms. FALLIN. I think the section I was asking about—and I do not 

have it in front of me right now, but the concerns I have had expressed, to me, are when you change the definition of the waters, 

that it could encompass those things that I mentioned before; and 

that is what I am hearing back from my community. Do you think 

it could? 

Ms. BROWNER. I do not. I do not think this bill suddenly will 

have the EPA and the Army Corps of Engineers regulating activities to protect our Nation’s waters that they have not previously 

regulated. And all I can tell you is that, you know, I have read it. 

I have worked on the Hill for a number of years. I wrote a lot 

of laws; I got to interpret some of the laws I wrote as the Administrator of the EPA. You know, based on that experience—I am not 

a legislative scholar, but based on that real-world experience, I am 

very comfortable that this will not change the activities that EPA 

and the Corps have historically been engaged in. 

I do not know what they are doing today. 

Ms. FALLIN. Well, I appreciate your telling me that because I 

would like to go back home and tell my folks that you have told 

me in the hearing that it will not cover those kinds of things. I 

think it is important to know. 

Ms. BROWNER. When you say ′′those kinds of things,′′ what I am 

saying is things that are not currently—I do not know if those 

things are; I would have to go back and research each of them. 

Thank you. 

Ms. FALLIN. Thank you. 

Ms. JOHNSON. Thank you very much. 

Congressman Carney. 

Mr. CARNEY. Thank you, Madam Chair. 

Ms. Browner, this horse is not quite dead yet. We have got one 

more beating on it here. 

604

What would be the implications of actually leaving the phrase 

′′navigable waters′′ in the bill? 

Ms. BROWNER. Here is what I have to think about—and I will 

think about it, but let me tell you what I think has to be thought 

about. 

I will have to go back and look at two Supreme Court decisions 

to understand the word ′′navigable,′′ but let us just use some common sense here, all right? 

Mr. CARNEY. That would be great. 

Ms. BROWNER. You know, for 35 years, as the EPA and the Corps 

were implementing this program either for wetland permitting—or 

let us not forget the discharges of pollutants. I mean, if we do not 

clarify things that could also be negatively affected—and we have 

done a really good job of getting that pollution that comes from 

point sources under control, and I think we want to stay there, and 

we want to continue to get even better about it. 

But, you know, it is not like the EPA was sitting around or the 

Army Corps was sitting around with a map and saying, ′′Well, a 

boat can fit on that, but a boat cannot fit on this, and therefore, 

we are not going to regulate this.′′

They were saying, ′′When we look at the waters of the U.S., when 

we look at our major rivers, we have to also think about the tributaries to those rivers and about the streams to those tributaries if 

we are going to actually protect that waterway.′′ and I know we 

keep going around and around, but it seems so commonsensical to 

me that if you are going to protect something that is down here, 

and there are bad things going on up here, you had better protect 

and regulate what is going on up here; otherwise, you are not going 

to have a lot left down here. Sorry. 

Mr. CARNEY. No. I appreciate common sense. It is a rare commodity around here. I am glad to have it. 

I am kind of on the same tone, though. 

Ms. BROWNER. You know, if you lived on a stream and you lived 

down at this end and somebody were doing something bad up here 

that was affecting your ability to swim down here, you would be 

really thankful that the EPA and the Army Corps of Engineers 

thought they should be able to regulate that thing up here. 

Mr. CARNEY. I am grateful to them anyway. Thank you very 

much. 

In your experience at the EPA, did you ever hear big influxes of 

complaints about the permitting process? I mean, were you getting 

feedback from the States that people were just up in arms? 

Ms. BROWNER. We heard directly from the people. We did not 

have to wait for the States. 

Of course. I mean, you run a permitting agency. 

Mr. CARNEY. Right. 

Ms. BROWNER. You know—I apologize if I said this while you 

were not here, but you know, a lot of times when you dug around, 

the problem was that the answer was ′′no,′′ and somebody did not 

like it but not all of the time. 

I mean, look, the EPA has 18,000 people. You have got, you 

know, States of 1,000 people per agency or so. You can get some 

bad things going on, but a lot of times when you actually went 

605

digging, you found out that the real problem was that people did 

not like the answer. 

Mr. CARNEY. Boy, that makes sense. 

We have actually heard from other folks that Governor Schweitzer from Montana, for example, said that the folks actually liked 

the idea of a process where they knew what the process was; and 

the permits were there, and they had them in hand, and they could 

do what they wanted to do. I think that makes a lot of sense. 

Of course, we hear the same complaints in our offices when we 

vote ′′no,′′ that we should have voted ′′yes,′′ and when we vote ′′yes,′′ that we should have voted ′′no.′′ so I get that. 

Ms. BROWNER. There you go. 

Mr. CARNEY. I just want to thank you for your testimony. In fact, 

you bring a breath of fresh air to this whole process, and I want 

to work with you and continue to keep the waters of this country 

clean. 

Thank you very much. 

Ms. JOHNSON. Thank you very much. 

Mr. Duncan. Congressman Duncan. 

Mr. DUNCAN. Thank you, Madam Chairwoman. 

Ms. Browner, let me see if I can partially explain why there is 

so much concern on the part of farmers from California to Oklahoma and Virginia and people in Tennessee—not just farmers, but 

home builders to private landowners. 

I am told that, you know, when the Clean Water Act was passed 

in 1972 and then for several years thereafter, there were a great 

many disputes about prior converted cropland, so much so—so 

many across the country—that a Farm Bill in the mid-1980s put 

an exclusion in there. 

Now, this bill as it is presently written takes that exclusion back 

out, and potentially you are talking about thousands of farms and 

pieces of land that are going to be back covered again; and that uproar that occurred between 1972 and the mid-1980s is going to 

start back up again, and that is what is creating a lot of the concern. 

Then, too, you have got this from—I have heard this decision 

pronounced different ways, the ′′Rah-pan-ose′′ or the ′′Rap-ah-noes,′′ whatever the pronunciation is. Mr. Rapanos moved a few dump 

truckloads of dirt a few hundred yards on a piece of property that 

he owned that was 54 acres. The decision says this was sometimes 

saturated soil. The nearest body of navigable water was 11 to 20 

miles away. 

Then you go on over here, and it says, ′′The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for nationwide permits spends even more days and money.′′ Now then, it goes on down further, and it talks about the immense expansion of Federal regulation of land use that has occurred under the Clean Water Act, and it says, ′′In the last three 

decades, the Corps and the Environmental Protection Agency have 

interpreted their jurisdiction over the waters of the United States 

to cover 270 million to 300 million acres of swampy lands in the 

U.S.′′

Now——

606

Ms. BROWNER. I am sorry. Is that from the opinion? 

Mr. DUNCAN. That is from the opinion. 

Ms. BROWNER. Okay, from Scalia. 

Mr. DUNCAN. That is from the opinion. 

What people are concerned about—I mean, I read this morning 

that where they are having the British Open golf tournament, they 

have got soggy fairways. What a lot of people are concerned about 

is that they think now we are going to see this big expanse. 

You see, when you make government so big and so bureaucratic, 

as we have done over these last many years, you go in and you require individual farmers to go through a permitting process that 

takes hundreds of days, on the average of 788 days, and $271,596, 

I mean you can wipe somebody out. And who you end up hurting 

in these deals is not the big, giant farmers or not the big, giant developers; who you hurt are the poor and those in the lower income 

and the working people and that small farmer and that small developer. That’s who gets eaten up and chewed up and thrown out 

by all of this, and that is why you are seeing all of this concern 

about this already, even though we are just starting this process. 

And yet, I get the impression that you do not really believe that 

people should be so concerned about this. 

Ms. BROWNER. I think anytime there are abuses in a government, any government permitting program, that is cause for concern. I absolutely share that concern. 

I did a lot of things while I was at the EPA to try and address 

problems that I thought were genuine, including, for example, in 

the Superfund Program where small businesses were being, I 

thought, needlessly drawn into the Superfund net. We created a 

whole program to protect small businesses from the Superfund liability. So I do not want to—where there are legitimate concerns, 

they absolutely need to be addressed. 

With respect to the Rapanos situation, I do want to just remind 

everybody—I am sure you know, but it is just worth noting, once 

again, the Bush administration—the current Bush administration—took exactly the same position with the Supreme Court that 

I took, that Mr. Reilly took, that Mr. Train took, and that Mr. 

Costle took, all former EPA Administrators, so——

Mr. DUNCAN. The Bush administration sometimes makes mistakes. Let me ask you this. 

Ms. BROWNER. I did not say that. I might have thought that. 

Mr. DUNCAN. Do you have any suggestions as to what we could 

do to this law that you said you have read thoroughly; do you have 

any suggestions or recommendations that you could make so that 

we could do something with this permitting process that would not 

make it take an average of 788 days and $271,000 for small people 

or small landowners? 

I mean, over 75 percent of the wetlands in this country are on 

private land. 

Ms. BROWNER. I think, in the short term, the single most important thing you can do is pass this legislation to clarify the ambiguities that have been created by SWANCC and Rapanos, and that 

will help mitigate some of the permitting problems that are going 

to arise. There are going to be permitting problems because of 

607

Rapanos; I strongly believe that. I think this is an important step 

to ensuring that those problems do not occur. 

Mr. DUNCAN. Well, if we pass this law, would you find it acceptable to exclude small farm operations or small landowners who 

cannot possibly afford these types of court challenges? 

Ms. BROWNER. This law is about protecting the Nation’s waters. 

There will be times when small businesses and small farm owners 

have waters that need to be protected. 

Now, having said that——

Mr. DUNCAN. You are protecting the big guys, not the little guys. 

Ms. BROWNER. No. 

Mr. DUNCAN. That is what it amounts to. You can say what you 

want to, but that is what it amounts to. 

Ms. BROWNER. I will speak for myself, thank you very much. I 

am not on the side of the big guys versus the little guys. I am on 

the side of making sure that we honor our Nation’s laws and do 

it in a fair and commonsense way. 

The best way to do that, I believe, is to embrace this, to pass 

this. There are, no doubt, problems in the permitting system that 

will extend beyond the impact of Rapanos, and they can be addressed, but I do not think they need to be addressed in this law. 

Mr. DUNCAN. Thank you. 

Ms. JOHNSON. Thank you very much. 

I was just looking at some of the Corps of Engineers’ opinions, 

and they think that 80-some percent of the permits can be done in 

under 60 days——

Ms. BROWNER. Right. 

Ms. JOHNSON. —and a total of 61 percent have been done in 

under 120 days, so it might be that efficiency set in somewhere. 

Let me thank you so very much for being here today. It has been 

very helpful. 

Ms. BROWNER. Thank you. 

Ms. JOHNSON. We appreciate your spending your time. 

Ms. BROWNER. Thank you. 

Ms. JOHNSON. The second panel: 

Mr. Steve Moyer is the Vice President of Government Affairs and 

Volunteer Operations for Trout Unlimited in Arlington, Virginia; 

Mr. Joe Logan is the President of Ohio Farmers Union; 

Mr. Marcus Hall is the Public Works Director and County Engineer in Duluth, Minnesota, for the St. Louis County Public Works 

Department; 

Mr. Norman Semanko is the Executive Director and General 

Counsel of the Idaho Water Users Association, Inc. in Boise, Idaho, 

on behalf of the National Water Resources Association and the 

Family Farm Alliance; and 

Mr. Larry Forester is a City Councilman of Signal Hill, California, on behalf of the Coalition for Practical Regulation; 

Thank you very much for being here. 

608

STATEMENTS OF STEVE MOYER, VICE PRESIDENT, GOVERNMENT AFFAIRS AND VOLUNTEER OPERATIONS, TROUT UNLIMITED; JOE LOGAN, PRESIDENT, OHIO FARMERS UNION; 

MARCUS J. HALL, P.E., PUBLIC WORKS DIRECTOR/COUNTY 

ENGINEER, ST. LOUIS COUNTY PUBLIC WORKS DEPARTMENT, DULUTH, MINNESOTA; NORMAN M. SEMANKO, EXECUTIVE DIRECTOR AND GENERAL COUNSEL, IDAHO WATER 

USERS ASSOCIATION, INC., ON BEHALF OF THE NATIONAL 

WATER RESOURCES ASSOCIATION AND THE FAMILY FARM 

ALLIANCE; THE HONORABLE LARRY FORESTER, CITY COUNCILMAN, SIGNAL HILL, CALIFORNIA 

Ms. JOHNSON. Mr. Moyer, you may begin your testimony. 

Mr. MOYER. Thank you, Madam Chairman. I really appreciate 

the opportunity to be here today and to participate in the hearing 

on this very important subject. 

Because of the two recent Supreme Court decisions and the Federal Government’s flawed guidance in interpreting those decisions, 

the status of the Nation’s waters under the jurisdiction of the 

Clean Water Act is threatened, shrinking and confused. If we, as 

a nation, are ever to have any prospect of achieving the Clean 

Water Act’s most laudable goal to restore and maintain the chemical, physical and biological integrity of the Nation’s waters, the situation needs to be rectified soon. 

T.U. supports the Clean Water Act and the Clean Water Restoration Act, H.R. 2421, as a critical step for restoring the historic 

scope of the act and the jurisdiction in placing the Nation back on 

track of achieving the goals of the act. 

T.U. is the Nation’s largest cold water fisheries conservation 

group. We are dedicated to protecting and restoring the Nation’s 

trout and salmon resources and the watersheds that they depend 

on. We have about 150,000 sportsmen and -women who are devoted 

to restoring trout and salmon. They devote a lot of time and energy 

to restoring the waters in their home waters and the fisheries that 

are there. We are not constitutional lawyers, though. 

T.U. staff and volunteers are not constitutional lawyers, but we 

think we know a good bit about restoring and maintaining the Nation’s waters. We always view these waters from a watershed perspective. Water resources within a watershed are all connected 

from the top of the mountain down to the smallest headwater into 

the remotest wetland to the majestic rivers in the valleys to the 

coastal bays and to the oceans. 

One of the most valuable lessons that we have learned is that 

watershed restoration is impossible without maintaining the health 

of headwater streams; and that is my main plea for you to consider 

here today, the health of headwater streams. Headwater streams, 

especially the intermittent and ephemeral streams that are dry for 

parts of the year, are the ′′Rodney Dangerfields′′ of the aquatic 

world. They do not get enough respect, but they really do deserve 

respect because the best science we have tells us how extremely 

valuable these headwater streams are. They really are the ′′roots′′

of all of our watersheds, and if we damage or kill the roots, we 

damage the trees, the large rivers that flow through the valleys 

and towns and cities. 

609

The two Supreme Court decisions and the guidance that followed 

each have done a great deal of damage to put these headwaters at 

risk, and H.R. 2421 is the bill that is needed to be passed as soon 

as possible to fix this situation, and here is why. I have just a few 

points to highlight. 

The two decisions have really narrowed and confused the extent 

of the act’s jurisdiction; and the plurality in Rapanos’ decision, in 

particular, was especially unfriendly to small headwater streams. 

Secondly, the EPA and the Corps responded to each of these decisions with guidance that went even further than the decisions 

themselves in curtailing the Clean Water Act jurisdiction. 

In particular, on the Rapanos’ guidance—on nonnavigable waters 

and wetlands, the Rapanos’ guidance insists on a narrowly focused, 

case-by-case evaluation that promises to be both highly time-intensive and unnecessarily narrow. The waters that are most at risk 

from the Rapanos and SWANCC decisions are small headwater 

streams, as I mentioned, and other intermittently flowing streams 

and wetlands associated with such streams and geographically separated wetlands, like prairie potholes. Far from being isolated or 

remote, these waters are, in fact, the lifeblood of larger waters and 

some of the most vital waters to fish and to wildlife. 

These resources are vast. These headwater streams comprise a 

very large portion of a lot of watersheds, especially in the western 

United States, and these waters are very valuable. They perform 

a whole variety of functions. Of course, the ones most useful to us 

are producing trout and salmon, but they also have great pollution 

controlling functions. 

Also, then, you have to talk about activities. If you do not have 

geographic jurisdiction, then you do not have activity regulation; 

and we are very concerned about the loss of section 404 and, potentially, the jeopardy of section 402, the point source discharge programs, because of the loss of geographic jurisdiction. T.U. members 

use these programs to make sure that development is done wisely 

and does not pollute or destroy aquatic resources. 

So, for those reasons, T.U. strongly supports H.R. 2421 and urges 

the Committee to pass it as soon as possible. 

Thanks for having me today to testify. 

Mr. MCNERNEY. [Presiding] Thank you, Mr. Moyer. Thank you 

for your testimony and for attending here this afternoon. 

Mr. Logan, you are up next. Would you begin when you are 

ready. 

Mr. LOGAN. Thank you very much, Mr. Chairman and Members 

of the Committee. I appreciate the opportunity to be here today to 

testify. 

My name is Joe Logan. I am the President of the Ohio Farmers 

Union. I am a fifth-generation family farmer from northern Ohio, 

where I graze cattle, produce row crops. We make maple syrup, 

grow grapes, and produce wine. I am here today on behalf of the 

National Farmers Union, a general commodity farm organization 

that represents family farmers, ranchers, fishermen, and rural residents from across the country. 

The NFU recognizes that the purpose of the Clean Water Act is 

to provide clean water—clean, safe, usable water—for all of the 

citizens of the United States. At the same time, the act reminds us 

610

that preserving clean water is a shared responsibility to be borne 

equally by all who use, benefit from and rely upon a healthy and 

safe supply of water. The NFU believes that family farmers and 

ranchers have historically been the best soil and water conservationists when given the economic incentives and the flexibility. 

Two Supreme Court cases involving the Clean Water Act have 

resulted in considerable confusion among the Corps of Engineers, 

the EPA and those seeking to abide by the law. Bipartisan legislation introduced by the House and Senate is seeking to clarify that 

act. However, considerable confusion exists surrounding the intent 

of the proposed legislation, which I hope can be clarified here 

today. 

Our members spend the vast majority of their time on their 

farming and ranching operations, day-to-day. They have not experienced a drastic difference between the pre- and post-SWANCC Supreme Court decisions. Some in the agricultural community have 

suggested that legislation introduced will expand the jurisdiction 

and scope of the original Clean Water Act and eliminate 32 years 

of regulatory precedent. It is my understanding that the legislation 

simply aims to clarify the responsibilities of the Corps of Engineers 

while, at the same time, it maintains the statutory and regulatory 

exemptions for agriculture; and I hope that the Chairman can clarify that intention to the agricultural community. 

It is important to keep in mind that although agriculture sometimes contributes to water pollution, the damage is uneven in scope 

and in severity. The highest vulnerabilities occur most often where 

farming is done at an industrial level. Therefore, blanket regulations are unwise and very hard to justify to the producers. Any legislation impacting the Clean Water Act must be clear enough for 

those in the agricultural community to be able to predict which 

lands and which waters will be covered. 

Farmers and ranchers have long acknowledged that clean, safe 

water is critical to the long-term success of their operations. What 

will help farmers and ranchers in the future is a less cumbersome 

and more expedient process when the agricultural community, the 

EPA and the Corps can come to a consensus about what problems 

do and do not need to be addressed and the most practicable way 

to address those challenges. 

As National Farmers Union members have demonstrated for generations, farmers, ranchers and fishermen are effective environmental stewards. Their astute understanding of natural resources 

deserves to be recognized and rewarded. 

With that, Mr. Chairman, I thank you again for the opportunity 

to testify. I would be happy to take any questions you might have. 

I thank the Members for their efforts in this regard. 

Mr. MCNERNEY. Thank you for your testimony, Mr. Logan, and 

for working with family farms, which, I think, is an important part 

of our national heritage and, hopefully, our future, our Nation’s future. 

Mr. Marcus Hall, representing the St. Louis County Public 

Works Department. 

We look forward to your testimony. You can begin when you are 

ready. 

Mr. HALL. Thank you. 

611

My name is Marcus Hall, and I am the Public Works Director 

with St. Louis County, Minnesota. I want to thank Chairman Oberstar and Ranking Member Mica and the Transportation and Infrastructure Committee for allowing me to testify today, and I hope 

to give you a glimpse of the national wetland issue from a county 

highway department perspective. 

St. Louis County is located in northeastern Minnesota and is a 

very large county. It extends from the most westerly tip of Lake 

Superior and goes north to the Canadian border. It is the largest 

county east of the Mississippi River, covering over 7,000 square 

miles. 

Between the rivers, lakes, marshes, and swamps, over 35 percent 

of our county is covered with wetlands. Covering this vast region 

is an extensive State and county transportation system. St. Louis 

County, itself, is responsible for over 3,000 miles of roadway, and 

we have an annual highway construction budget between $25 million and $30 million. 

It typically takes 3 to 5 years to go from the conception of a highway construction project, through a public input phase, a preliminary design phase, an environmental permit phase, a final planned 

phase, the right-of-way acquisition and bidding phase just to get to 

a point where you can begin construction. During this whole time, 

our constituents are watching this process, and most of the time, 

they are shaking their heads, wondering why it is taking so long. 

Now, Minnesota recognizes the importance of wetlands to both 

our natural environment and economics. We adopted the Comprehensive Wetland Conservation Act in 1991, and in many cases, 

our State and local regulations are more restrictive than the Army 

Corps and PCA regulations. 

I believe that the recent Supreme Court decisions have thrown 

the Federal regulatory agencies into turmoil and both the EPA and 

the Army Corps of Engineers into a scramble on how to implement 

the new rulings. The latest Agency guidelines, dated June 5th of 

this year, are very complex. The typical 60-to-120-day permit process has now slowed to a crawl. What the guidelines do is take a 

one-step process, consisting of applying for a permit, and turn it 

into a two-step process—first, applying to review your project to see 

if it falls under their jurisdiction and then, two, applying for a permit. 

Mr. HALL. Our current best estimate is that this will add anywhere from 4 to 6 months to the process, more than doubling the 

current process time. And in Northern States, this will mean a 

delay of our projects for a full construction season. With construction inflation running between 4 and 7 percent, this represents an 

annual cost of between $1- and $2 million in delays for St. Louis 

County each year. Please remember that in the State of Minnesota, 

the local and State regulations and requirements are more restrictive than the Corps, so this delay comes with no increase in environmental protection for us. 

A typical St. Louis County reconstruction project is our County 

State Aid Highway 47 project. It is a 4.7-mile project that is scheduled for reconstruction in 2008. The current estimated value of the 

project is $4.5 million. And under the new guidelines, the two-step 

process, it is my understanding the Corps will have to perform a 

612

jurisdictional determination on each of the 36 separate individual 

wetland crossings that we have on that project. If this forces a 

delay in our project, it will cost St. Louis County between $200,000 

and $300,000 for this one project. 

With numerous projects like this in the area, the local Army 

Corps of Engineers field personnel are currently overwhelmed by 

the amount of field work and paperwork that they are required to 

perform. I believe that the long-term solution to this issue is legislative action that clearly defines which wetlands falls under the 

Corps’ jurisdiction, and eliminating this current first step of the 

two-step process. 

However, a short-term solution would be to allow the permittee 

to waive the analysis portion, and on an individual case-by-case 

basis concede the Corps’ jurisdiction and move right to the permit 

phase. Needless to say, either solution is preferable to the guidelines, which are presently unworkable. 

In summary, I want to point out the county engineers understand the importance of our environment, and understand that our 

society has placed a great value on our wetlands. However, they 

have also placed a great value on a good transportation system, 

and it is up to us to balance these values and come up with a system and process that produces a great transportation system without harming our environment in the process. 

That concludes my oral statement, and I will be happy to answer 

any questions you may have. Thank you. 

Mr. MCNERNEY. [presiding.] Well, thank you for that testimony 

and for the insight into the operations of your municipal system, 

and how the Clean Water Act and the—how important it is that 

the Clean Water Act be clear so that people can follow its rules. 

The next witness is Norm Semanko of the Idaho Water Users Association. Thank you for coming, Norm, and you can begin your testimony when you are ready. 

Mr. SEMANKO. Mr. Chairman, thank you very much. My name is 

Norm Semanko, and I am here representing the National Water 

Resources Association and the Family Farm Alliance. The Family 

Farm Alliance advocates for family farmers and ranchers in 17 

Western states. The National Water Resources Association is a collection of State associations that together represent the agricultural and municipal water providers that take very seriously their 

role in providing safe and reliable water supplies to their consumers and their customers. 

I would like to review with you three areas today in the brief 

time that we have. 

Number one is the history and the intent, this definition question 

with regard to waters of the United States. 

Second is the impacts this legislation, H.R. 2421, is likely to have 

on the Federal-State partnership that has existed over the last 35 

years under the act. 

And then, third, I would like to talk about the impacts on water 

delivery providers, on our members. 

First, with regard to the definition of waters of the United 

States, trying to boil down what we heard here over the last hour 

and a half or so, there were three camps, three decisions really in 

the Rapanos decision. 

613

Number one, there were the folks that were able to get four 

votes, headed by Justice Scalia, that took the view that waters of 

the United States are the traditionally navigable waters, the ones 

that you can find the definition of in a dictionary or that you can 

look on a map and see blue lines. That got four votes. 

And then there were the folks represented by the prior panelist 

and other folks that advocated for an interpretation that all waters, 

interstate and intrastate, should all be covered by the Clean Water 

Act. The Federal Government should have jurisdiction over all of 

that. And if the State wants to have some jurisdiction, too, that is 

fine, but the Federal Government is always going to be there. That 

got four votes in the dissent. 

The middle vote was, of course, Justice Kennedy, which is widely 

considered the controlling opinion. And what he decided and what 

he said is that in addition to the traditionally navigable waters, 

you also have those waters that have a significant nexus to those 

navigable waters, those waters that actually have a physical, chemical, biological impact on the water quality. That is the real goal 

of the Clean Water Act. 

Now, the folks with Scalia and the folks with the dissent didn’t 

agree with that. If the folks that were with Scalia did what the 

folks in the dissent did, you would have a bill before you today 

that, instead of saying ′′navigable waters,′′ said those waters that 

are navigable in fact. In other words, they would want to have the 

jurisdiction under the Clean Water Act just be those blue lines on 

a map or those things that are defined as ′′waters′′ in the dictionary. 

That is not what happened. Instead what we have is the folks 

that lost on the dissenting side coming in with their argument as 

to what they believe waters of the United States should be, and 

that is the definition that is included in H.R. 2421. It represents 

a tremendous expansion, no matter what has been said here today, 

with regard to the definition of waters of the United States. By including the language that all interstate and intrastate waters to 

the fullest extent, that those waters or their activities are subject 

to the legislative powers of Congress under the Constitution, that 

includes all waters in the United States. 

What does this do for the Federal-State relationship? Well, traditionally the States, under section 101(b) and 101(g) of the Clean 

Water Act and other Federal acts, have had a tremendously important role with regard to the waters in the United States. Whether 

they were under Federal control or not wasn’t important. The 

States had control over their water. That would be upset. 

When you increase Federal jurisdiction, you are reducing, necessarily, the State jurisdiction. It is not enough to say that the 

States are delegated this responsibility by the Federal Government; 

that in essence they are given, if it’s not paid for, an unfunded Federal mandate. It drastically upsets the delicate balance between 

the States and the Federal Government. 

Then, third, the impact on our water delivery folks. There is no 

doubt with regard to section 303 if you are a waters of the United 

States, then water quality standards apply. If you are not meeting 

the water quality standards, cleanup plans have to be developed. 

So all the canals, and the drains, and the laterals, and the stock 

614

ponds—and the list can go on and on—they will all need to have 

TMDL plans developed. And the focus on the traditional waters of 

the United States that we have done such a good job of cleaning 

up will be lost. 

Under section 402, NPDES permits will be required in places 

they haven’t been. Section 404, permits will be required for routine 

maintenance activities, and things that are done in canals and 

laterals now. 

Most importantly, the view of what the Clean Water Act will 

mean, what that jurisdiction means, isn’t up to Carol Browner or 

to me or any of you. Any citizen can, with the cost of a stamp and 

a typewriter, put together a citizen lawsuit and file a lawsuit. 

Eighty percent of the enforcement actions under the Clean Water 

Act are brought by citizens, and they are able to convince a judge 

what the Clean Water Act means. And that is where you will have 

the encroachment and these vast interpretations under the act. 

I appreciate your time, and look forward to answering questions. 

Thank you. 

Mr. MCNERNEY. Thank you, Mr. Semanko. That was very enlightening and precise testimony. Thank you very much. 

The next witness is Larry Forester from Signal Hill, California. 

And I look forward to your testimony. You can begin when you are 

ready. 

Mr. FORESTER. I have a PowerPoint. I opened with the title The ′′Unintended and Foreseeable Consequences of Extending the Clean 

Water Act—the Southern California Experience.′′ We are living it. 

Honorable Chair and Members of the Committee, thank you for 

allowing me the opportunity to testify. Again, my name is Larry 

Forester, council member from the city of Signal Hill. Signal Hill 

is a member of the Coalition for Practical Regulation, 43 cities of 

the 88 in L.A. County working to improve water quality. CPR testified before this Committee in 2003. And we are pleased that you 

are taking a retrospective look at the Clean Water Act. I believe 

I am qualified. I have a degree in civil engineering, and master’s 

degree in ocean engineering, and with 9 years of local elected experience. To explore unintended and foreseeable consequences to local 

government by extending the Clean Water Act is my duty. 

CPR’s testimony—let’s see if I can work this—talks about what 

happened in Southern California, where we began to extend the 

Clean Water Act to public storm drains, isolated lakes, ponds, 

intermittent flood control channels. The problems in Southern California are now systemic, manifesting all Clean Water Act programs, from basin planning, NPDES permits, and Total Maximum 

Daily Load programs. Congress should see Southern California as 

a microcosm of the impractical, inflexible, unworkable, and costly 

approach which would be the result of expanding the Clean Water 

Act nationwide. 

Although well-intentioned, proposed legislation like H.R. 2421 

will have unintended and foreseeable consequences, requiring numeric Federal quality limits, including applying Federal toxic rules 

to local drains, gutters, ponds, reclaimed water, and drinking water 

reservoirs. 

A major consequence of extending the Clean Water Act will be 

to expose thousands of local governments to legal actions taken by 

615

third parties, as authorized by the Clean Water Act. Southern California is now the watershed of litigation. The majority of the litigation can be traced back to the imposition of Clean Water Act standards by regulators to what are clearly nonnavigable waters. 

My written testimony details examples of what I want to highlight. We will look at the San Diego permit. In 2001, the San Diego 

Regional Water Quality Board defined a municipal storm drain as 

waters of the United States. The entire storm drain system, starting at the curb, is regulated by the Clean Water Act. This permit 

has widely been copied by local regulators. The consequences are 

deeply troubling, since the Clean Water Act requires compliance at 

the point of discharge into the waters of the United States. This 

literally means compliance with the Clean Water Act at the driveway, house, or business. 

Constructed wetlands. Regional engineers have found that constructive wetlands will capture many of the pollutants in urban 

runoff. However, engineers have found that water within the constructed wetlands may not be capable of meeting Federal water 

quality standards. Proposed expansion of the Clean Water Act 

could preclude the use of constructed wetlands, since they are part 

of the drain system. 

Vertical box culverts. When I look at vertical box culverts, I am 

talking about channelized rivers. Engineers constructed hundreds 

of vertical, walled concrete-lined, box flood control channels in 

Southern California to deal with historic flooding beginning in the 

1930’s. With the adoption of the Clean Water Act in 1972, water 

quality standards have been attached to these culverts. Many were 

designated for swimming use, even though public access is restricted. These designations were made at a time when the regulators stated that the Federal standards were impractical to apply 

to urban runoff, and said local government had nothing to worry 

about. 

However, regulatory personnel changed over time, and so did the 

reach of the Clean Water Act. Regulators began requiring these 

channels meet recreational standards, but local governments protested, and the U.S. EPA regulators replied that the Clean Water 

Act required a Federal permit to approve or to remove impractical 

uses. There is a 4-year process to remove swimming from the L.A. 

River. There are hundreds of similar channels. 

Drinking water and reclaimed water. Many communities rely on 

above-ground storage of reclaimed water, for example, in small 

ponds and lakes. These ponds and lakes are isolated from rivers 

and oceans, yet many have designated habitat or other beneficial 

uses under the basin plan. The water quality objectives of these 

would require better water quality, a higher degree of treatment 

than for reclaimed water, absent these designations. Clearly, the 

application of the clean water standards to these reservoirs would 

require treatment with no tangible benefit. 

A similar contradiction exists when applying beneficial uses to 

drinking water reservoirs, several of which are uncovered and open 

to the environment. Although public access is denied, most of these 

reservoirs have been designated for potential recreational uses. As 

a result, they are regulated for uses that are not compatible with 

their actual function as closed water distribution systems. The apVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00643 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
616

plicable Clean Water Act standards of these reservoirs would create some illogical treatment, and especially the applicability of the 

toxic rule. 

In conclusion, our water board estimates the cost to local governments to comply with the metal TMDL of the Los Angeles River 

is $2.4 billion—′′B′′ as in boy—dollars. This is just one of hundreds 

of TMDLs that must be adopted on dozens of water bodies in the 

region. 

Local governments in Southern California do not know how they 

are going to afford these regulations. Expanding the scope of the 

Clean Water Act will create a major Federal mandate. These examples are illustrative as you contemplate the scope of the Clean 

Water Act. Well-intentioned regulations can have unintended consequences. Many of these unintended consequences can be seen in 

advance. Hopefully, practical regulations and common sense can 

prevail. 

Thank you for the time, and I am sorry I went over a little. 

Mr. MCNERNEY. Thank you for that testimony. That does shed 

some light on the concerns that you are facing in the municipalities, a different set of concerns. 

Unusual circumstances, so we are going to be called to a vote 

within the next 15 or 20 minutes. And it is expected to take an 

hour or so of voting, or maybe an hour and a half. So I am going 

to ask the panelists from the third panel, Mr. Yaich and Dr. Meyer 

to come forward and join the panel so that we will have the testimony before we start our questions and answers. And that way we 

can combine, and every one of the panelists will have an opportunity to speak this afternoon. 

So I would like to ask Mr. Yaich from Ducks Unlimited, Memphis, Tennessee, to take the stand and address this body. And I 

look forward to your discussion. And you can begin when you are 

ready. 

TESTIMONY OF DR. SCOTT C. YAICH, DIRECTOR OF CONSERVATION OPERATIONS, DUCKS UNLIMITED, INC., MEMPHIS, TENNESSEE; AND DR. JUDITH L. MEYER, DISTINGUISHED RESEARCH PROFESSOR OF ECOLOGY EMERITUS, 

UNIVERSITY OF GEORGIA, ATHENS, GEORGIA 

Mr. YAICH. Mr. Chairman, Members of the Committee, my name 

is Dr. Scott Yaich, and I am the Director of Conservation Operations at Ducks Unlimited’s national headquarters. I appreciate the 

opportunity to speak today on behalf of Ducks Unlimited and our 

more than 1 million supporters, as well as Pheasants Forever, the 

Theodore Roosevelt Conservation Partnership, Wildlife Management Institute, and the Wildlife Society. 

DU’s mission is to conserve, restore and manage wetlands and 

associated habitats for North America’s waterfowl and for the benefits they provide other wildlife and the people who enjoy and value 

them. 

DU and our partners are science-based conservation organizations, so our perspectives on the Clean Water Act are grounded in 

wetland and water-related scientific disciplines, and I offer our 

comments today from that perspective. 

617

To ensure that we begin with a common understanding, it is 

worthwhile to state that from a scientific perspective, a wetland is 

an area that has hydric soils, is subject to being flooded for a portion of the growing season, or at least saturated, and supports or 

is capable of supporting wetland vegetation. 

Our written testimony provides much more detail, but I would 

like to emphasize five primary points this afternoon: 

The first is that of the original 221 million acres of wetlands in 

the U.S., over half have been lost. This has significantly affected 

the ability of the remaining wetlands and other waters to fulfill 

Federal and public interests. For example, the capability of the Nation’s wetlands to support international waterfowl populations has 

been much reduced. I spent 17 years working in Arkansas, much 

of it in the Cache and White River Basins, historically among the 

most important wintering waterfowl habitats in North America. 

Arkansas has lost more than 80 percent of these wetlands, and the 

number of waterfowl coming to the region now are consequently 

much lower than they once were. 

My second point is that wetlands serve important ecological and 

societal functions, including providing habitat for waterfowl and 

other wildlife. Wetlands hold water and provide natural flood control during times of high rainfall, and subsequently slowly release 

it and help maintain base flows of streams and rivers. In Minnesota, for example, watersheds with higher percentages of wetlands and lakes have been shown to have lower levels of flooding. 

Wetlands recharge aquifers, such as the High Plains Aquifer, that 

provides water to eight States. Along the South Platte River in Colorado, geographically isolated wetlands provide water directly to 

the river via groundwater connections. The water from some wetlands takes 12 years or more to move from the wetlands to the 

river, but because of the certainty and predictability of these significant hydrologic nexuses, this water has real economic value 

that is being bought and sold as part of an interstate and Federal 

agreement. 

The negative side of these ubiquitous kinds of connections between geographically isolated wetlands and flowing waters, however, is that the water can transport pollutants. For example, there 

are a number of Superfund sites in one county in Michigan from 

which compounds such as polychlorinated biphenyls and heavy 

metals have leached from an isolated wetland into aquifers, private 

drinking wells, and ultimately to the Clinton River. 

A wealth of scientific studies and wetland systems across the 

country documents these hydrologic and ecologic linkages between 

wetlands and other waters. These studies support my third point, 

which is that virtually all wetlands, in combination with similar 

wetlands in a region, do possess significant nexuses with navigable 

and other waters and have a direct effect on their quantity and 

quality. In the Rapanos decision, Justice Kennedy gave a strong indication of the importance he placed on consideration of the aggregate impacts of wetland loss when he stated an example of the public purposes that should be served by the Clean Water Act was to 

address water quality issues such as the Gulf of Mexico’s hypoxic 

zone. This problem can only be addressed by approaching it at a 

landscape scale, a piece at a time, including protecting or restoring 

618

some of the 60 million acres of wetlands in the Mississippi River 

watershed, whose loss has contributed significantly to the growth 

of the problem in the first place. 

The fourth point is that, as a result of the Supreme Court decisions and subsequent agency guidance being based upon something 

other than the best available wetland science, tens of millions of 

acres of wetlands across the country are now at significantly increased risk of being lost. Although Justice Kennedy’s significant 

nexus test provides a science-based conceptual approach to wetland 

regulation, the nature of the nexuses between wetlands and navigable waters makes such a test virtually impossible to apply scientifically and efficiently within a regulatory context. We believe 

the effect will be decreased protection of wetlands and increased 

regulatory uncertainty, as well as increased administrative burdens 

and processing time required for permits. 

So my final point is that due to the nature and almost universal 

scope of the connection between wetlands and other waters of the 

U.S., fulfillment of the primary purposes of the Clean Water Act, 

which is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters, requires that the wetlands 

protections that existed prior to the SWANCC decision be restored. 

Legislation that clarifies that central point is the only apparent 

remedy for restoring the necessary Clean Water Act protections. 

Mr. Chairman, I thank you for the opportunity to present our 

views on this, and I will be happy to answer questions when the 

time comes. 

Mr. MCNERNEY. Thank you, Mr. Yaich. I appreciate your testimony and your expertise. 

And next we are going to turn to Dr. Judith Meyer. I look forward to your testimony, and you can start when you are ready. 

Ms. MEYER. Thank you for inviting me to testify today, and for 

the opportunity to provide the Committee with the scientific evidence for the importance of headwater streams in maintaining the 

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

My name is Judy Meyer, and I have been a professor at the University of Georgia, and conducted research on headwater streams 

for three decades. The scientific evidence is clear that small 

streams must be protected if we are to reach the goals of the Clean 

Water Act. Rivers are networks whose navigable portions are inextricably linked with headwaters, just as our own circulatory system 

is dependent on the functioning of healthy capillaries. Reaffirming 

a broad definition of waters in the text of the Clean Water Act is 

critical to the goal of the Clean Water Act, which is maintaining 

the physical, chemical, and biological integrity of our Nation’s waters. Longstanding and robust scientific evidence demonstrates that 

interdependence of small streams and navigable rivers. 

Today I am going to summarize four key points. But, recognize 

these points are supported by hundreds of peer-reviewed scientific 

publications. References to this extensive scientific literature are 

included in my testimony submitted for the record, and also have 

been more completely summarized in the document ′′Where Rivers 

Are Born.′′ These points have also been made in a letter to Chairman Oberstar and Ranking Member Mica from the North AmerVerDate 0ct 09 2002 15:25 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00646 Fmt 6633 Sfmt 6633 P:\DOCS\36734 HTRANS1 PsN: JASON
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ican Benthological Society, which is a scientific society whose members study rivers and streams. 

The first point on the critical importance of headwater streams 

is that they are ubiquitous. The smallest streams comprise the 

greatest number and length of channels in a river network. This 

is illustrated in this figure, which shows the percentage of stream 

miles in the smallest streams. The darkest colors are where small 

streams are over 59 percent of channel lengths, so that you can see 

in many parts of the U.S., well over half of the stream miles are 

in these smallest streams. Yet even this is an underestimate of the 

total length of small streams because of the scale of the maps. 

For example, standard topographic maps with the blue lines that 

were referred to earlier identify only 21 percent of the stream channel length in a North Carolina watershed. In addition, a sizable 

fraction of the channel length in a river network is in streams that 

do not flow permanently. This is shown in this figure. In this case, 

darker colors indicate where over 80 percent of the stream length 

is in intermittent channels. In arid States such as Arizona, 96 percent of stream miles do not flow continuously. Intermittent streams 

are also abundant and significant in States that get more rainfall. 

For example, intermittent streams in Michigan comprise 48 percent of the length of streams in that State. 

My second point: Headwater streams contribute to the physical 

integrity of the river network. Small streams are an important 

source of water for large rivers. Over half of the water in large rivers in the northeastern U.S. is delivered by headwater streams. 

Small streams hold and store water during storms and recharge 

groundwater. Where human activity has eliminated or degraded 

small streams, both the frequency and intensity of flooding increases downstream. In the face of global warming and increased 

threats of flooding, small streams will play an even more critical 

role in reducing flood damage. 

Small streams also retain sediments. If the storage is reduced, 

sediments are flushed downstream during storms. This reduces 

water quality and negatively impacts fish feeding, spawning, and 

overall stream health. 

Point number three. Tributaries are essential to the maintenance 

of the chemical integrity of navigable rivers. The basic chemical 

composition of unpolluted streams is largely established in their 

headwaters. For example, over 40 percent of the nitrogen that is 

found in navigable rivers in the northeastern U.S. originates in 

headwater streams. So therefore, pollutants and contaminants that 

are introduced into headwaters will make their way down to navigable waters. 

Small streams in the network are also the sites of the most active uptake, transformation, and retention of nutrients. When 

headwaters streams are eliminated or degraded, more of the nutrients that are being applied to lawns and farm fields are delivered 

to downstream lakes and estuaries. Nuisance algal blooms, low oxygen concentrations, and fish kills are potential consequences of 

these excess nutrients. 

My fourth and final point on the importance of headwaters is 

that they contribute to the biotic integrity of river networks. And 

they do this in three ways. They are the primary habitats of many 

620

aquatic and terrestrial species. My colleagues and I have found 290 

taxa in tiny little streams in North Carolina. 

Secondly, headwaters provide spawning habitat, serve as nursery 

areas, and offer a refuge from threats such as predators and stressful temperatures. Species may use small streams only part of the 

year, but it is essential that those streams are present and accessible when needed. For example, brook trout in the Ford River in 

Michigan retreat to cooler headwaters in summer. In coastal 

streams in Oregon, young coho——

Mr. MCNERNEY. We were called to a vote, so if you could wrap 

this up. 

Ms. MEYER. I will. I am on my last point. Headwaters supply 

food resources to downstream and riparian ecosystems. Fishless 

headwater streams in Alaska export enough food to support hundreds of thousands young-of-the-year salmon in each mile of salmon-bearing streams. 

So in conclusion, decades of scientific research have shown that 

permanent and intermittent headwater streams are an integral 

part of a river network. They are not isolated. They provide ecological goods and services. Whether they have a direct hydrologic connection to a navigable river, these headwater streams have a direct 

impact on the physical, chemical, and biotic integrity of navigable 

waters. They have traditionally been protected by the Clean Water 

Act. 

Recent court decisions and agency guidance have not adequately 

incorporated scientific understanding that the entire river network 

requires protection. Legislation to reaffirm the original intent of 

the Clean Water Act is needed to reunite the law with the science. 

Thank you. 

Mr. MCNERNEY. Thank you. That was very informative. Unfortunately, we had to cut that off. 

Mr. Gilchrest has been very patient. I would like to give him an 

opportunity to ask a couple of quick questions, and then I will ask 

Members of the Committee to submit questions in writing to the 

panel, and ask that the panel respond to those questions within 2 

weeks. 

Mr. Gilchrest, would you like to begin? 

Mr. GILCHREST. Thank you. I thank the Chairman. 

I would like to ask three questions. And maybe since the panel 

is so large, and we have a vote pending, I could also get the response to these questions to the Committee. 

First question is which waters of the United States should be 

clean? And keep in mind physical, chemical, biological factors. 

Number two, how should we think about gravity and its relationship to water and the Clean Water Act, keeping in mind the nexus 

that Mr. Kennedy is talking about? 

And number three, does it matter whether or not human activity 

regarding the hydrologic cycle of water, and understanding its necessary services to us human beings, is important? Does it matter 

whether or not human activity regarding the hydrologic cycle is important? 

And I will yield back, Mr. Chairman. Thank you very much. 

621

Mr. MCNERNEY. Thank you, Mr. Gilchrest. I don’t know how to 

characterize those somewhat philosophical—certainly the deepest 

questions we have had here today. 

So I thank the panel very much for their expert testimony. It has 

been very interesting. As I mentioned in my questions of the first 

panel, a lot of my constituents are concerned about the impact of 

the Oberstar bill. So this has been helpful. 

Hopefully you will get some questions from the Committee, and 

you will be able to answer those within a 2-week period. At this 

point I would like to adjourn this hearing. 

[Whereupon, at 4:30 p.m., the Committee was adjourned.]

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Æ


36734.813