House Transportation and Infrastructure Committee Hearing on H.R. 2421  

The Clean Water Restoration Act (CWRA) of 2007

Family Farm Alliance

April 23, 2008 

The House Transportation and Infrastructure Committee held a hearing one week ago on H.R. 2421 – the Clean Water Restoration Act (CWRA) of 2007. The legislation, sponsored by Representative James Oberstar (D-Minnesota) would amend the Clean Water Act to replace the phrase “navigable waters” with “waters of the United States .” The following has been prepared by The Ferguson Group, the Family Farm Alliance’s Washington , D.C. representative. 

To date, a committee vote (“markup”) has not been scheduled for H.R. 2421 or its Senate counterpart (S 1870).  House staff believes the House Transportation and Infrastructure Committee may hold a markup sometime in May.   

Testimony in the House Committee hearing focused on H.R. 2421’s central provision, Section 4, which defines “waters of the United States” as “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”  

Opening Statements

Chairman Oberstar began the hearing by stating the Clean Water Act (CWA) is one of the most important environmental statutes ever written but it has been undermined by the Rapanos and SWANCC Supreme Court cases.   His opening statement characterized those cases and the recent joint Environmental Protection Agency and Army Corps of Engineers Implementation Guidance as failures.  Chairman Oberstar said H.R. 2421 is intended to repeal the Supreme Court cases and return CWA jurisprudence to its previous state.  He concluded his opening statement by saying he was willing to work with all interested parties on ways to improve the legislation.  “I invite constructive proposals and remain open to adaptations to this bill,” Chairman Oberstar said, adding that the bill “is a starting point for discussions.” 

Ranking Member John Mica’s (R-Florida) opening remarks included the statement, “This bill represents an unprecedented and historic federal jurisdiction grab.”  He said that he has received a vast number of letters and statements in opposition to the legislation and that he would be submitting the statements for the hearing record.  He said that the “potentially harsh consequences” of the legislation will likely generate additional opposition.  “Federal regulation of virtually every wet area of the United States is not necessary,” Rep. Mica said, asserting that there is no evidence to support the argument that the Rapanos and SWANCC decisions have hurt wetlands or water quality.

Testimony

The hearing featured 23 witnesses organized into five panels.  

Panel I  

The first consisted of testimony from the federal government.   Assistant Secretary of the Army for Civil Works, John Paul Woodley, Jr.; USDA Natural Resources Conservation Service Chief Arlen Lancaster; Environmental Protection Agency Assistant Administrator for Water, Benjamin Grumbles, and Deputy Assistant Attorney General John Cruden testified on behalf of the Administration.  

Assistant Secretary Woodley testified the Army Corps of Engineers has several concerns with H.R. 2421.  He stated a consequence of the bill is extending jurisdiction beyond those waters determined to be not jurisdictional under the SWANCC and Rapanos decisions.  A second concern, he said, is the bill could open up a new line of litigation regarding the limits of Congress’s legislative power, thereby creating additional uncertainty and unpredictability for the environment, the regulated community, and State and Federal agencies.  Assistant Secretary Woodley also stated he was concerned with the question of whether it is appropriate to upset the Federal-State balance established in the original Clean Water Act by extending Federal jurisdiction to essentially all isolated waters and every ephemeral aquatic feature on the landscape.  Another important question, he said, is whether H.R. 2421 would upset over 30 years of established precedent.

Chief Arlen Lancaster testified the Natural Resources Conservation Service (NRCS) authorities for wetlands compliance and restoration activities would not be affected by H.R. 2421.  He stated the bill potentially could lead to more producers falling under CWA jurisdiction, which could lead to increased compliance costs. 

Assistant Administrator Grumbles testified the EPA has several concerns with H.R. 2421 as drafted.  He said the legislation raises concerns of constitutional and programmatic issues.  Assistant Administrator Grumbles said the use of the term “activities” rather than “discharge” might be construed to expand the scope of CWA authorities and lead to litigation. Another concern, according to Assistant Administrator Grumbles, is H.R. 2421’s savings clause fails to include the long-standing regulatory exemptions for “prior converted cropland” and waste treatment systems. The last concern he stated was the legislation alters the Federal-State balance of authorities.

Assistant Attorney General Cruden’s testimony did not address specific provisions of H.R. 2421.  His testimony detailed the legal history of the CWA, the Rapanos case, and litigation post-Rapanos. Assistant Attorney General Cruden stated the Department of Justice has taken the position that the United States may establish CWA jurisdiction under either the plurality’s standard or Justice Kennedy’s standard articulated in the Rapanos decision. He said circuit courts have adopted different standards, with some Circuits adopting the Department of Justice position that jurisdiction may be established under either the plurality standard or Justice Kennedy’s standard, and some Circuits adopting Justice Kennedy’s significant nexus test.

Committee Members’ questions to the panel focused on the scope of the legislation. Several Representatives on both the majority and minority sides of the committee asked the panel if H.R. 2421 restored the pre-Rapanos and SWANCC understanding of the CWA or expanded its reach.  The panel referred to its testimony stating H.R. 2421 would expand the reach of the CWA. Chairman Oberstar asked the panel to identify waters under the jurisdiction of the CWA before Rapanos and SWANCC that are not now protected and to identify situations where the EPA and Corps have declined to assert jurisdiction because of those decisions.  Assistant Administrator Grumbles stated isolated ponds and some ephemeral streams have lost protection since Rapanos and SWANCC. Assistant Secretary Woodley responded by saying the Guidance has not been in place long enough for the Corps of Engineers to have made many decisions on jurisdiction. 

Representative DeFazio (D-OR) stated that, by the expansion of the CWA to encompass all intrastate waters, he felt the fundamental question becomes “what is a jurisdictional water?”  He asked the panel if rivulets filled by rainwater in the mountains of the Northwest would be considered a water of the United States under H.R. 2421?  Assistant Secretary Woodley responded by saying it was a fair question.

Further questions by Committee Members dealt with a number of concerns. Representative Rahall (D-WV) asked the panel if they were concerned H.R. 2421, in its efforts to clarify the reach of the CWA, could potentially unravel over 30 years of CWA precedence?  The panel responded by saying that was a possibility.  Representative Boozer (R-Alabama) asked the panel if H.R. 2421 could apply to groundwater?  The panel responded by saying H.R. 2421 is broad enough it could be read in that manner.  

Panel II

The second panel focused on legal and academic opinions.  Witnesses included:  Professor Mark Squllace, Director of the Natural Resources Law Center at the University of Colorado School of Law; Professor William Buzbee, Director of the Environmental and Natural Resources Law Program at Emory Law School; Professor Jonathan Adler, Director of the Cneter for Business Law and Regulation at Case Western Reserve University School of Law; and Ms. Virginia Albrect; Partner at Hunton & Williams LLP.   Professor Squllace and Professor Buzbee testified in support of H.R. 2421 while Professor Adler and Ms. Albrect testified in opposition. 

Professor Squllace testified Rapanos and SWANCC undermined the CWA.  He said federal regulation is necessary and appropriate to protect the nation’s water supply.  He stated the CWA is constitutional and provides a state-federal balance by providing authority to the federal government while reserving to the states the opportunity to approve and manage individual permitting programs.  He said there is broad federal jurisdiction under the Commerce Clause because water is an article of commerce. 

Professor Buzbee testified the Supreme Court unsettled a bipartisan three decade consensus on the CWA and weakened the CWA by limiting its reach.  He said there is widespread regulatory confusion that H.R. 2421 will, in his opinion, remedy.   Professor Buzbee stated the portion of the H.R. 2421 that gives jurisdiction “to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution” is necessary in order to require broad judicial construction of the CWA. 

Professor Adler testified H.R. 2421 would increase existing uncertainty about the scope of federal regulatory authority.  He said the legislation would likely impede efforts by federal agencies to set meaningful regulatory priorities that could enhance federal environmental protection efforts. Professor Adler stated he believes courts will ultimately end up determining CWA protections because the legislation does not adequately define “waters” and “activities affecting waters”. 

Ms. Virginia Albrect, on behalf of the Waters Advocacy Coalition, testified in opposition. She stated that the legislation broadly expands the reach of the CWA.  She said by  altering the CWA’s definitional structure there could be unintended consequences by imposing regulatory burdens on states and local communities, usurping state authorities to manage vital water resources, including groundwater, and imposing substantial costs and delays in the replacement of aging water infrastructure.

Panel III

The third panel featured representatives of local governments.  Witnesses included:  Brett Hulsey, Supervisor, Dane County , Wisconsin ; Kristen Jacobs, Commissioner, Broward County , Florida ; Robert Cope, Commissioner, Lemhi County , Idaho ; and Don Munks, Commissioner, Skagit County , Washington . Supervisor Husley and Commissioner Jacobs testified in support of H.R. 2421 while Commissioners Cope and Munks testified in opposition. 

Supervisor Husley’s testimony focused on the impact of the Rapanos decision on the protection for ephemeral streams.  He stated Rapanos and SWANCC placed in doubt the protection of ephemeral streams comprising the headwaters of drinking supplies.  He said almost 60% of the nation’s streams, 20% of wetlands and one-third of drinking water sources will lose protection if H.R. 2421 is not enacted.  

Commissioner Jacobs testified in favor of the legislation.  She said H.R. 2421 does not expand federal jurisdiction, preempt the traditional roles of state and local governments in water quality protection or land use, or disturb the regulation of federal projects by state or local governments.  

Commissioner Cope testified as a representative of the National Association of Counties (NACo). He stated H.R. 2421 does not define the boundary between state and federal waters, leading to concerns about preemption of state law.  He said local governments would be burdened by implementing new federal requirements, and delays and costs associated with section 404 permit requirements.

Commissioner Munks’ testified H.R. 2421 would broadly impact municipalities.  He stated the legislation places all bodies of water under the purview of the federal government.  Commissioner Munks echoed Commissioner Cope’s comments by saying local governments would be forced to administer what he termed a “cumbersome permitting process” and local governments may be required to obtain a permit for routine activities. 

Panel IV

The fourth panel featured representatives from state agencies and the legal community.   Witnesses included:  Joan Card, Director, Water Quality Division of the Arizona Environmental Quality Department; Robert Trout, Trout, Raley, Montano, & Witwer PC, Colorado ; James Tierney, Assistant Commissioner, New York Department of Environmental Conservation; and Mark Pifher, Deputy Director, Aurora Water, Colorado .  Director Card and Commissioner Tierney testified in favor of the legislation while Robert Trout and Directory Pifher testified in opposition. 

Director Card, on behalf of the State of Arizona , repeated her testimony from the prior Senate Environment and Public Works Committee hearing on S 1870.  In support of the legislation, she stated Arizona ’s specific concerns about the CWA in wake of Rapanos and the recently released guidance from the Corps of Engineers and EPA.  The main concern highlighted in her testimony relates to the Section 402 point source permits. She testified that 96 percent of stream miles in Arizona were non-perennial.  Director Card said Rapanos and the guidance cast doubt on Arizona ’s ability to issue or enforce permits for wastewater and stormwater discharges in to state waters other than the Colorado River .   

Robert Trout testified in opposition on behalf of agricultural interests in Colorado .  He expressed concerns with several provisions of H.R. 2421, with a particular emphasis on the definitions section.  He testified “wet meadows” should not be included in the definition of “waters of the United States .”  He said “wet meadows” are created through lawful irrigation practices and should not be included as a “water” for that reason.  He also stated the broad definition of “wetlands” encompasses numerous small wetlands created by leakage from irrigation facilities and practices; meaning that repairing a leak could impact a “waters of the United States .”  

Commissioner Tierney’s testimony in favor of the legislation, on behalf of the State of New York , was substantively identical to previous State of New York testimony submitted to the Senate Environment and Public Works Committee.  Commissioner Tierney characterized the Rapanos decision as lacking a scientific understanding of the connections between waters.  He testified H.R. 2421 is necessary to maintain a “strong federal floor for water pollution programs throughout the country.” His testimony also expressed concern states would be burdened with administrative and financial responsibility for regulating fill activities. 

Director Pifher, on behalf of the National Water Resources Association, testified in opposition.  He stated the bill would expand traditional federal jurisdiction and create uncertainty. He also said the language could delay and increase the cost of installation and repair of water supply infrastructure in the West.  His testimony said H.R. 2421 would impact local land use authority and construction of stormwater control facilities as well. 

Panel V

The fifth and final panel featured testimony from Chris Peterson, Iowa Farmers Union; Tim Recker, Iowa Corn Growers; Carl T. Shaffer, President, Pennsylvania Farm Bureau; Alex Matthiessen, Hudson Riverkeeper; Harold Quinn, National Mining Association; Darrell Gerber, Clean Water Action Alliance of Minnesota; and Linda Runbeck, President of the American Property Coalition.  Chris Peterson, Alex Matthiessen and Darrell Gerber testified in support of H.R. 2421 and Tim Recker, Carl Shaffer, Harold Quinn, and Linda Runbeck testified in opposition. 

Chris Peterson testified in favor of H.R. 2421.  He stated there is current regulatory uncertainty on the scope of the CWA and this causes delays in permit applications.  He said H.R. 2421 would establish a national set of guidelines for jurisdiction of the CWA and simply returns the CWA to its state prior to the 2001 SWANCC case. By creating national guidelines, his testimony stated, permitting times will be reduced.  

Tim Recker, on behalf of the Iowa Farm Growers Association, testified in opposition. He stated the legislation was an expansion of federal power by including intrastate waters in the definition of “waters of the United States .” He also testified the language of the bill was ambiguous.  He noted the bill language speaks in terms of   “activities affecting” waters of the United States .  In contrast, he said, the CWA section 402 and 404 speak in terms of “discharges.” His testimony said “activities” is much broader than “discharges.”  

Alex Matthiessen, Hudson Riverkeeper, testified in support of the legislation.  He testified developers have attempted to capitalize on confusion caused by these decisions to build in wetland areas that previously had been protected under the CWA. He stated the legislation is needed to restore the original intent of Congress, protect wetlands and intermittent and headwater streams, and reduce regulatory confusion. 

Carl Shaffer, on behalf of the Pennsylvania Farm Bureau., testified in opposition.  His testimony indicated several areas of concern. He stated H.R. 2421 would expand the scope of CWA jurisdiction.  He said the new definition of “waters of the United States ” would require federal agencies to conduct new rule-makings under the Administrative Procedures Act in order to implement the new statutory designation. His testimony said every existing regulatory provision would be open to reconsideration and amendment if new rulemakings were to commence.   

Harold Quinn, on behalf of the National Mining Association, testified in opposition.  He stated H.R. 2421 would dramatically expand federal power beyond the scope of the Commerce Clause.  He said it would overburden the already overwhelmed NPDES permitting system and cause undue delays for governments and businesses.   

Darrell Gerber, on behalf of the Clean Water Action Alliance of Minnesota, testified in support of the legislation. He stated the Rapanos and SWANCC decisions undermined the basis of the CWA.  He said it has caused regulatory uncertainty that was not cleared up by the EPA/Corps Guidance.  Mr. Gerber stated the legislation does not expand the CWA but restores protections for areas that lost them due to Rapanos and SWANCC.

Linda Runbeck, on behalf of the American Property Coalition, testified in opposition. Ms. Runbeck said H.R. 2421 requires national land use control through its expansion of the CWA. She said the “activities affecting waters” portion is ambiguous and this ambiguity will cause litigation. Her testimony also said the bill would lead to increased bureaucracy and federalization of all waters.