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Summary of Hearings on Water Resources (4-18-08)
Witnesses Panel II Members Present On April 9, the Senate Environment and Public Works (EPW) Committee held a hearing to examine S. 1870, the Clean Water Restoration Act of 2007. The legislation, introduced by Senator Russ Feingold (D-WI) and co-sponsored by 20 senators, would replace the phrase “navigable waters” throughout the Clean Water Act (CWA) with the term “waters of the United States.” As indicated by the opening statements of EPW members, S.1870 will likely be a partisan issue. Republicans voiced concerns that the replacement phrase would greatly expand the jurisdiction of the CWA and infringe on states’ rights, specifically that water quality issues would override local water allocation authority. Ranking member James Inhofe (R-OK) stated “the federal government owes it to the American public and individual property owners, including the millions of homeowners across the country, to have a clean, concise and constitutional definition of “waters of the United States.” The Clean Water Restoration Act does not meet any of these goals and will simply result in more lawsuits and more confusion.” Democrats characterized the legislation as restoring the original intent of the CWA and according to Chair Barbara Boxer (D-CA) removes “the shadow [cast by two Supreme Court decisions] over nearly 30 years-worth of expert agency interpretations in protecting America's waters.” Democrats claim varying court opinions create more confusion in the regulated community and the uncertainty over covered waters will increase litigation and negate the historical interpretation of waters covered by the CWA. The Supreme Court decisions in question are Solid Waste Agency of Northern Cook County v. United States (SWANCC) and Rapanos and Carabell v. United States(Rapanos). The CWA act provides EPA with the authority to regulate the discharge of pollutants and maintain water quality standards for surface waters. The U.S. Army Corps of Engineers’ involvement in these regulatory activities center around the granting of permits for the dredging of or filling in of waters. In SWANCC the court ruled that the Corps exceeded its statutory authority under the CWA. The Corps claimed jurisdiction based on the use of the waters by migratory birds and denied a permit to fill in the ponds. The court retorted that the CWA does not extend to isolated ponds connected to navigable waters by migratory birds. The Rapanos decision held that CWA jurisdiction over covered waters did not extend to wetlands, man-made ditches, or intermittent wet areas that were not adjacent to navigable waters. Carol M. Browner, former U.S. Environmental Protection Agency (EPA) administrator, testified that she as well as her predecessors (both Republican and Democrat) interpreted the CWA to “cover all of our nation’s interconnected water resources, including watersheds, tributaries, and wetlands.” She joined four former EPA administrators in a petition to the Supreme Court calling for the broad interpretation of “navigable waters” citing CWA enforcement concerns over tributaries and wetlands. Browner was questioned about the potential expansion of CWA jurisdiction if the legislation were adopted. She testified that in her opinion as a former EPA administrator the legislation does not expand CWA jurisdiction, but clarifies the interpretation utilized by the EPA for over thirty years. The next two witnesses, Alexander B. Grannis and Joan Card, regulators from New York and Arizona respectively, also expressed their support for S.1870. Card highlighted Arizona’s concern that the Rapanos decision and EPA’s guidance in response to the case would limit protection of the ephemeral streams that dominate Arizona’s landscape. The final two witnesses, David P. Brand and Randall P. Smith, reiterated the concerns of the Republicans stating their fear that the legislation would expand the scope of waters regulated under the CWA, increase bureaucratic obstacles and increase costs. Smith additionally emphasized that expanded CWA jurisdiction would impede private property rights and harm those who make a living off the land. The House will examine identical legislation introduced by Congressman James L. Oberstar (D-MN), H.R. 2421 in a hearing on April 16th. Regardless of the outcome of the legislation the scope of waters covered by the CWA and subject to regulation will most likely continue to be contested through litigation. A link to witness testimony can be found here. Sources: Hearing testimony, E&E Daily, The Environmental Law Institute: Clean Water Act Jurisdictional Handbook. -MEG Witnesses The Honorable Ron Curry, Cabinet Secretary, New Mexico Environment
Department Committee Members Present Chair Barbara Boxer (D-CA) The Clean Water Act (CWA) has been protecting U.S. waters from pollution for over 30 years. The act requires all entities that discharge pollutants into U.S. water bodies to obtain a permit from the U.S. Environmental Protection Agency (EPA) or the U.S. Army Corps of Engineers. Recent Supreme Court rulings (Rapanos v. United States, June 2006 and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, January 2001) have upheld the protection of "navigable" U.S. waters, as is written in the text of the legislation, but do not mandate the protections of the CWA on water bodies not considered navigable or directly connected to navigable waters. Two pieces of legislation have been introduced to broaden the definition of waters that fall under the jurisdiction of CWA. One is the "Oberstar-Feingold Clean Water Restoration Act of 2007" (H.R. 2421), which would replace each mention of "navigable waters of the United States" with "waters of the United States." The Senate companion bill is the "Water Resources Restoration Act" (S. 1870). This hearing provides testimony from legal, environmental, and business organizations regarding the recent CWA Supreme Court Decisions. The Honorable Ron Curry, Cabinet Secretary of the New Mexico Environment Department, testified that CWA is the "main tool" used to keep water clean in the U.S., and its effectiveness has been lessened by the recent Supreme Court decisions. Mr. Curry believes that all water bodies are valuable and should be protected. He said "basing the decision on what water deserves to be clean by whether or not you can float a boat on it is complete lunacy." Curry stated that the southwest U.S. has a dry season and a monsoon season, so many of the main water resources for the area are ephemeral and thus not covered by CWA as defined by the Supreme Court. The costs of not protecting such important water bodies would be high. He implored Congress to restore the purpose of CWA by broadening jurisdiction over a greater range of water bodies through legislation such as H.R. 2421 and its companion bill. Dr. Scott Yaich, the Director of Conservation Operations for Ducks Unlimited, Inc., testified about the importance of wetland protection. Over one half of wetlands in the U.S. have already been lost, and those remaining need to be protected. All wetlands are connected at some point to usable water resources, and the recent Supreme Court decisions put the wetlands and the water resources at higher risk for pollution. Dr. Yaich asked the committee to fulfill the primary purpose of CWA and protect all U.S. wetlands. Duane Desiderio, from Legal Affairs of the National Association of Home Builders, asked the committee to consider the recent housing industry problems and to help alleviate these issues. He believes that changing CWA to include more water bodies in its jurisdiction will hurt homebuilders because it will require more permits. Unlike the previous witnesses, Mr. Desiderio stated that expanding the jurisdiction of CWA would not be consistent with the act's original purpose. He said that originally Congress had "no intent" to apply the legislation to ephemeral waters or similar water bodies, and that including them would create serious constitutional questions and possibly overstep federal authority. He also noted the Supreme Court Justices ruling that a water body needs to provably connect to navigable waters for CWA to have jurisdiction. George J. Mannina Jr., an attorney at law, testified on the complexity of jurisdiction in CWA. He said there "always has been and will be confusion about what is the jurisdiction of water in the U.S.," and the confusion has been compounded as the legislation has been changed through time. Different standards are used in different regions, and often no written standard is available. Mr. Mannina noted that previous congresses have used navigability as the basis for authority, and broadening the legislation to cover all waters would create a much larger jurisdiction. He asked the committee to define their purpose in CWA. If they want to protect all waters, then they should broaden the jurisdiction. If they want to limit CWA to covering navigable waters, the current Supreme Court rulings uphold that purpose. He noted that using the term "navigable" waters to define authority may not make upholding the CWA easier. Dr. William W. Buzbee, professor of law at Emory Law School, testified that the Supreme Court rulings were a "partial success" because some protections have been lost. He said that a key prerequisite of many water laws, including CWA, is understanding what waters are under the law's jurisdiction. Dr. Buzbee stated that even small water bodies are very important to the ecosystem and that it makes sense to protect all waters because costs are "not exorbitant" to do so. He further stated that the current status of CWA as redefined by the Supreme Court rulings "is really not acceptable" and undercuts the effectiveness of the legislation. Dr. Buzbee supports H.R. 2421 and its expanded jurisdiction of CWA. Chair Barbara Boxer (D-CA) stated that the division among the committee has been reflected in the testimony of the panel. All committee members can submit questions to the panel, but could not do so during the hearing due to time restrictions. She also presented a chart with EPA data showing that 111 million Americans get their drinking water from ephemeral sources. Boxer noted there are ways to fix CWA, but they are a long way off. She referred to this hearing as an "opening round" for further discussion. Opponents of the Supreme Count rulings believe CWA will no longer protect important waterways. Proponents argue that the ruling protects businesses from undue costs and does not affect important U.S. waters. While this hearing was not directly about H.R. 2421, those that agree with the Supreme Court rulings limiting CWA jurisdiction are likely to oppose the bill, while those that disagree with the rulings generally support the bill. The committee Chair stated that additional hearings will be heard regarding the Supreme Court decisions. A link to witness testimony can be found here.
Witnesses Panel I Panel II Members Present Chairman Jeff Bingaman (D-NM) Chairman Jeff Bingaman (D-NM) said that today the "stakes are higher than ever before" for water availability. Issues such as increased droughts, climate change, and population increases have decreased water supplies to lower levels than ever before. Chairman Bingaman noted the "dire predictions about water supplies" often in the news. In June of 2007, a scientist from the U.S. Geological Survey (USGS) testified that the majority of climate models were in agreement that there will be a 20 percent or more reduction in water supplies in the future in the U.S. Putting additional funds towards assessing and managing water supplies now however, can help decrease that loss by about half. The SECURE Water Act (S.2156), will increase water efficiency and help us better understand water uses and availability, which may provide the management necessary to keep the U.S. from suffering water shortages in the future. The other senators agreed that water availability is important, especially in the western U.S. Senator Jon Tester (D-MT) said that "quite simply, water is life" and that the SECURE Act would give important new assessments of water supplies in the U.S. He noted it is "better to find out what we have before we find out we do not have enough" water. Senator John Barrasso (R-WY) is concerned that the legislation is not comprehensive enough. He believes S.2156 will only look at climate effects on water resources. He is also apprehensive that the legislation will cause environmental lawsuits to increase and cost tax payers large amounts of money. He suggested that the federal government could help states complete their own water supply assessments instead. The honorable Robert Johnson, Commissioner of the U.S. Bureau of Reclamation (BR), said that water is the foundation of the economy. Fast population growth and climate change will alter water availability. He said the BR supports the SECURE Act, and applauded the grants programs and cooperative research agreements, especially the Water 2025 grants, which will allow states to obtain funding for water surveys in growing areas of the West. Dr. Robert Hirsch from the U.S. Geological Survey (USGS) testified that the goals of S.2156 are "vital to the nation" and that major organizations, such as USGS, support the legislation because a strong science base, which is crucial to water management, would be used. Hirsch stated that the last comprehensive water supply assessment in the U.S. regarding water use and groundwater availability was published in 1978. A pilot program of the type of assessment that would be conducted under S.2156 is already being used in the Great Lakes region. Senator Barrasso asked if BR could already do these types of assessments without the authorization of S.2156. Johnson replied that BR does have some of this authority, but the bill focuses assessment work and helps prioritize to achieve the best possible cost-benefit ratio. Senator Ken Salazar (D-CO) asked how agencies are looking at climate change and getting estimates of water use and availability. Hirsch said these assessments have been worked on for nearly 20 years by USGS, BR, and the Army Corps of Engineers and include data from stream flow studies and paleoclimate research. Salazar asked if, in Hirsch's opinion, the federal agencies have a coherent plan to present. Hirsch replied that knowledge of the science of climate change and its impacts on water are still very limited, and the field is "in its infancy." Johnson said a plan included research partnerships and getting specific availability data for each basin, which is included in the bill. Ranking Member Pete V. Domenici (R-NM) asked the panel if they thought Congress should do more to help, and if FEMA and USGS have sufficient resources to carry out their work. Hirsch replied that USGS is very concerned about the continuity of monitoring in the longer-term. He said stream gauges often need to be shut down due to lack of funds, which eliminates valuable data and reduces the ability to complete comprehensive assessments. Mr. John D'Antonio, a New Mexico state engineer representing Western States Water Council, testified in support of S.2156, stating that it will help us better understand "water needs and strategies for a sustainable future." He said much more knowledge of U.S. water resources is needed to make educated decisions about use and conservation for the future. Mr. D'Antonio also noted one of the bill's benefits will be increased collaboration between the government, universities, and other organizations to conduct research and analyze data. Mr. Patrick O'Toole, President of the Family Farm Alliance, stated that farmers support S.2156. Farms are losing water as populations increase and climate changes. He believes the increased coordination between federal agencies will enable greater research capability and future resource planning. Mr. O'Toole also supports the cost-shared grants in the bill that will allow water managers to obtain additional funding to increase water efficiency. He also suggested including more federal-state partnerships for water monitoring and availability. Mr. Jon Lambeck of the Metropolitan Water District of Southern California testified that S.2156 is "essential" to understand water supply and mitigation in a time of growing populations. He said a key issue for water managers is that decreased water levels allow less hydropower to be generated, which in turn increases prices and forces energy companies to rely on power sources that emit greenhouse gases, adding to the climate change problem and decreasing water supplies even more. Federal assistance should be given to help optimize power production with low water supplies to get the most value out of the current supply. Mr. Lambeck stressed that the U.S. "cannot afford to wait" on water assessment and planning. Mr. Brian Richter of the Global Freshwater Program at the Nature Conservancy stated that "protection of ecosystems is critical for human beings," and ecosystems need water. Policies that address adaptation such as S.2156 are beneficial in a changing world. To better understand water use, the government needs better data on the availability and use of water, increased state and federal investment in water accounting, and improved management of water infrastructure. Mr. Richter suggested including incentives for storing water in natural aquifers, using flood controls such as levees and dams to naturally store flood waters, and adding a stronger research component to the bill. Dr. David R. Wunsch, representing the National Groundwater Association, testified that S.2156 is "overdue." He suggested including assessment of recharge rates, groundwater storage and recovery, and brackish water availability in the legislation. He stated that some states need federal funding to conduct surveys, and encouraged the committee to extend additional grants to states conducting water resource assessments. Chairman Bingaman asked the panel how much groundwater storage is happening in the West. Mr. D'Antonio replied that several states use groundwater storage, and more want to use it but need to know more about the quality and quantity of storage available in aquifers. Mr. O'Toole said that some areas do not allow groundwater storage, but in other areas it has worked well. Mr. Lambeck responded that over $400 million has been spent on groundwater storage research. Ranking Member Domenici stated that he plans on introducing a bill regarding "energy for water and water for energy" research next week. Witnesses showed overwhelming support of S.2156, the SECURE Water Act. Each witness suggested additions to the bill, including increased funding for state assessments and additional research. A sense of urgency is apparent in their testimony, with emphasis on the effects of climate change and population increase on already depleted water supplies. Congress is close to adjourning for the end of the year, and S.2156 will likely not surface again until the next session. A link to hearing testimony can be found here.
-EAL
Witnesses:
As Oberstar could not attend, Rep. Eddie Bernice Johnson (D-TX) chaired the hearing. In her opening statements, Johnson spoke positively about the need to protect the nation's waterways and wetlands. She criticized the Supreme Court and its 2006 ruling in Rapanos v. United States, which limits the number of waterways that may be regulated under the Federal Water Pollution Control Act, also known as the Clean Water Act (CWA). She accused the Court of making decisions driven by ideology and expressed interest in better understanding the reasons for the ruling. Reps. Richard Baker (R-LA), Lynn Westmoreland (R-GA), Doris Matsui (D-CA), and Eleanor Holmes Norton (D-DC) also made opening statements. Reps. Timothy Bishop (D-NY) and Brian Higgins (D-NY) submitted statements for the record. Baker urged clarity in the definition of the word "navigable" a key word to describe which waterways are protected by the CWA rather than removing the word from the CWA. Westmoreland called Oberstar's amendment to the CWA "alarming," and expressed considerable concern that agencies were "reaching over the bounds" of the original act. Matsui expressed concern that the permitting process "is not administered equally." Matsui's district, includes Sacramento, the city at the greatest risk for catastrophic flooding in her view. In her comments, Norton cited a same-day headline about the district's water quality in the Washington Post that addressed rising concern about potential toxins put into the district's municipal water during the treatment process. She argued that protecting the natural source of water could help avoid problems that arise due to treatment. Also present at the hearing were Reps. Thelma Drake (R-VA), Rick Larsen (D-WA), Brian Baird (D-WV), Howard Coble, (R-NC), John Duncan (R-TN), Mary Fallin (R-OK), and Henry Brown, Jr. (R-SC). The first panel featured only one witness, the Honorable Carol M. Browner, former Administrator of the Environmental Protection Agency (EPA) under the Clinton administration. The EPA is in charge of enforcing the CWA. In her opening statements, Browner began by mentioning the steadfast bipartisan support that the CWA has earned since its inception. She emphasized the importance of wetland areas and the current crisis they face. The nation loses 60,000 acres of wetlands per year, she said. Browner told lawmakers to step away from the specific cases that brought this issue to the forefront, and urged them to acknowledge the "widespread agreement" about how the EPA regulates wetlands. Addressing the Rapanos case, she said that she and three other former EPA Administrators wrote an amicus curiae brief to the Court on behalf of the EPA. Incidentally, this was the same position, she said, as the current administration. Ultimately, the Court ruled in favor of the plaintiff, Rapanos, thereby narrowing the jurisdiction of the CWA. The committee and Browner then engaged in a very lengthy question and answer session, which featured Browner repeatedly defending the CWA. She reiterated many times that since 1972, the EPA had clearly defined boundaries for the jurisdiction of the CWA and that the proposed bill would be clarification and not expansion of the act. Many committee members asked various questions about changes to regulatory authority, such as the scope, state-federal partnership, or exemptions, to which Browner kept on repeating that the proposed bill would clarify, but not change, what was the status quo prior to the Court case. Asked by several congressmen what she thought of the relationship between federal and state environmental officials, Browner said that a federal regulation was needed, but enforcement needed to be enacted at the state level, . The EPA allows state agencies to enforce the mandate of CWA if the states apply and show they have the ability to carry out the task. Citing her experience at the state level in Florida, she testified that state officials would better handle situations but that federal assistance should be available. Due to a congressional crunch time, when the committee had to disband for a series of important votes on the floor, the last two panels were combined into one. Witnesses only had time to read their opening statements, and few questions were allowed. Steve Moyer, testifying on behalf of Trout Unlimited described the new guidance of the Rapanos decision as "unnecessarily narrow." He stated the organizations support for the bill under current consideration. Representing the National Farmer's Union, Joe Logan, President of the Ohio Farmer's Union, reminded the committee of the important role that agriculture plays in the water cycle. He encouraged congressional efforts to ensure the availability and healthy use of the nation's water. By the same token, he said that farmers and ranchers play as much a role in the preservation of water supply as government agencies. Marcus Hall, a county public works director in St. Louis County, Minnesota, gave the perspective of a local official on water management. He argued that current guidelines are "unworkable." The county he represents has a large number of highways, and getting permits from the government in order to build highways in the county, of which 35% is covered in wetlands, is time-consuming and costly. Norman Semanko, testifying on behalf of the National Water Resources Association and the Family Farm Alliance, suggested that the CWA "has expanded significantly over the past thirty-five years, not narrowed." With regard to the proposed bill, he affirmed that both his organizations were "strongly opposed" to its passage, urging "clarity, not expansion of the Clean Water Act." Representing the Coalition for Practical Regulation, Larry Forester, a city councilman from California, advocated looking to his city of Signal Hill as a representation of future problems that will arise if H.R.2421 passes. Forester said that expansion of the CWA would open the door for third-party lawsuits to many smaller American communities, thereby burdening them with hefty legal fees. Scott Yaich, of Ducks Unlimited, described the state of the nation's wetlands, their ecological importance, and their current rate of destruction, upwards of 80,000 acres every year. Yaich and Ducks Unlimited stand behind congressional legislative action, saying that passage "is the only apparent remedy for restoring wetland protection." The last panelist to testify was Dr. Judith Meyer, Distinguished Research Professor of Ecology Emeritus at the University of Georgia. With thirty years of research experience, Meyer provided a scientific perspective on wetlands. She said that protection of small streams is "critical to the goal of the Clean Water Act." As the water in smaller bodies make their way to navigable waters, protection of small streams inherently protects larger bodies, she said. The text of Oberstar's bill can be found by clicking on the link
below: -SDJ
Sources: Hearing testimony Contributed by Sargon de Jesus, AGI/AIPG 2007 Summer Intern. Please send any comments or requests for information to AGI Government Affairs Program. Last updated on April 18, 2008. |
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