Update - Clean Water Act Legislation 

Family Farm Alliance

April 10, 2008 

The Senate Environment and Public Works Committee held a hearing April 9 on S 1870 – the Clean Water Restoration Act of 2007. The legislation, sponsored by Senator Feingold (D-Wisconsin) would amend the Clean Water Act to replace the phrase “navigable waters” with “waters of the United States .”

Section 4 of S 1870 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.” 

The following summary of yesterday’s Committee hearing was prepared by the The Ferguson Group, the Family Farm Alliance’s Washington , D.C. representative.

Stopping this bill was identified as a priority for the Alliance at our organization’s 20^th annual meeting earlier this year.

If you have any questions about this matter, please do not hesitate to contact our office.

Dan Keppen

Executive Director

Family Farm Alliance

Senate Environment and Public Works Committee Hearing on S 1870

Testimony

The hearing featured two panels of witnesses.  The first consisted of former Administrator of the Environmental Protection Agency, Carol Browner.  Administrator Browner testified in favor of S 1870.  She stated the Rapanos and SWANCC Supreme Court decisions limiting the scope of the Clean Water Act (CWA) did not reflect the original intent of Congress in implementing the CWA and overturned long standing precedent.  Administrator Browner further testified that the recent joint guidance from the Environmental Protection Agency and the Army Corps of Engineers has failed to clarify the boundaries of the Rapanos Supreme Court decision.  The guidance, according to Administrator Browner, will result in the loss of Clean Water Act protection for as many as 20 million acres of wetlands.  In concluding her prepared statement, she characterized S 1870 as not expanding CWA jurisdiction.  Instead, she said S 1870 would restore the law to its state prior to Rapanos and SWANCC.

Committee Members questions to Administrator Browner focused primarily on the scope of S 1870.  Several Senators on both the majority and minority sides of the committee asked the Administrator if S 1870 restored the pre-Rapanos and SWANCC understanding of the CWA or expanded its reach.  Administrator Brown repeatedly stated the legislation would not expand the CWA.  Senator Vitter (R-Louisiana) challenged Administrator Browner to identify “wet” areas that would not be under the jurisdiction of the CWA if S 1870 were to become law.  In response, Administrator Browner stated areas under the jurisdiction of the CWA have accepted scientific definitions and would be guided by the long history of decisions on what is and is not covered. Senator Barrasso (R-Wyoming) questioned Administrator Browner whether the legislation would undermine state control over water supply.  She responded by stating the legislation is about water quality and not quantity. 

Senators on the majority side of the Committee also questioned Administrator Browner about the issue of certainty. Majority members offered anecdotal evidence indicating the length of time to acquire a permit under the CWA has increased post-Rapanos.  Administrator Browner agreed with the characterization of Rapanos as causing uncertainty and said a benefit of the legislation would be to enable those applying for permits, as well as regulatory agencies, to draw upon previous case law to clarify the boundaries of the CWA.

The second panel featured testimony from Alexander Grannis, Commissioner, New York State Department of Environmental Conservation; Joan Card, Water Quality Division Director Arizona Department of Environmental Quality; David. Brand, Sanitary Engineer Madison County , Ohio ; and Randall Smith, Smith 6-S Livestock. Commissioner Alexander Grannis and Director Card testified in support of S 1870.  David Brand and Randall Smith testified in opposition.

Commissioner Grannis, testifying in favor of the legislation on behalf of the State of New York , characterized the Rapanos decision as lacking a scientific understanding of the connections between waters.  He testified S 1870 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 Card, on behalf of the State of Arizona , 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 .    

David Brand testified as a representative of the National Association of Counties. His testimony focused on the impacts the legislation would have on local governments.  He stated S 1870 would impact counties on several levels, including preemption of local authority by classifying intrastate waters as “waters of the United States ,” burdens on local governments to implement federal requirements, and delays and costs associated with permit requirements.

Randall Smith, a rancher from Montana , testified in opposition to S 1870.  His testimony stated the legislation would take state authority and transfer it to the federal government. 

He said he was concerned with how the legislation would impact Section 404 permitting requirements.  He stated S 1870 could lead to permitting requirements on every occasion where cattle or farm equipment impacted countless intermittent wet areas found on ranches and farms. Mr. Smith also said the legislation would impact private property rights.

There were few questions for the second panel of witnesses.  Senator Boxer asked Mr. Smith whether he had read the savings clause (reprinted below) in the bill because that would, according to Senator Boxer, alleviate Mr. Smith’s concerns on permitting requirements for ranching activities and normal farming activities. Senator Boxer commented to David Brand that local governments should support federal activity in this area or the burden will fall on local governments to ensure water quality. 

Outlook  

There are currently no plans for a markup of S 1870.  As reported earlier, Senate staff believes a full committee markup scheduled for later in April may or may not take up this legislation.   Senator Boxer ended the hearing by stating, “I am very hopeful we can work together. I don’t know there is room here… I know we’re going to try to get this resolved legislatively. If it is not going to happen this session of Congress I predict to you it will happen in the future.”  

SEC. 6. SAVINGS CLAUSE.

Nothing in this Act shall be construed as affecting the authority of the Administrator of the Environmental Protection Agency or the Secretary of the Army under the following provisions of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.):

(1) Section 402(l)(1), relating to discharges composed entirely of return flows from irrigated agriculture.

(2) Section 402(l)(2), relating to discharges of stormwater runoff from certain oil, gas, and mining operations composed entirely of flows from precipitation runoff conveyances, which are not contaminated by or in contact with specified materials.

(3) Section 404(f)(1)(A), relating to discharges of dredged or fill materials from normal farming, silviculture, and ranching activities.

(4) Section 404(f)(1)(B), relating to discharges of dredged or fill materials for the purpose of maintenance of currently serviceable structures.

(5) Section 404(f)(1)(C), relating to discharges of dredged or fill materials for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches and maintenance of drainage ditches.

(6) Section 404(f)(1)(D), relating to discharges of dredged or fill materials for the purpose of construction of temporary sedimentation basins on construction sites, which do not include placement of fill material into the waters of the United States.

(7) Section 404(f)(1)(E), relating to discharges of dredged or fill materials for the purpose of construction or maintenance of farm roads or forest roads or temporary roads for moving mining equipment in accordance with best management practices.

(8) Section 404(f)(1)(F), relating to discharges of dredged or fill materials resulting from activities with respect to which a State has an approved program under section 208(b)(4) of such Act meeting the requirements of subparagraphs (B) and (C) of that section.