Hearing of the Senate Committee on Environment and Public Works - S. 1870, The Clean Water Restoration Act of 2007

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SEN. JOHN BARRASSO (R-WY): Thank you very much, Madam Chairman.

In Wyoming almost nothing has been more important in our state's history than water. And as we say across the West and certainly in Wyoming, whiskey is for drinking and water is for fighting over. And when someone says water in Wyoming all ears tune in.

In Wyoming where the frontier spirit of smaller government and individual liberty are still sacred traditions there is overwhelming objection to this bill. The people of Wyoming do not want the federal government to go where this bill wants to go.

I recently heard from the Wyoming Association of Rural Water Systems and I'd ask that their letter be added as part of the record.

SEN. BOXER: No objection, so ordered.

SEN. BARRASSO: Thank you very much, Madam Chairman.

They oppose any legislative efforts which would expand the federal Clean Water Act jurisdiction over all water within the United States. The concern I hear at home is that this legislation would grant to the EPA and to the Army Corps virtually unlimited regulatory control over all wet areas within a state.

So let's be clear. This bill then trumps states rights. This bill preempts states and local governments from making local land and water use decisions. For Wyoming there is even a larger concern because this bill undoes the legacy of one of Wyoming's great statesmen, Senator Malcolm Wallop. Senator Wallop is still recognized as an authority on Western water law.

He authored and passed an amendment to the Clean Water Act and that amendment blocks Washington from overriding state control of water. This bill wipes that out and leads to an even more expensive cumbersome bureaucracy. The bureaucracy will increase delays in securing permits and that will slow or stop vital economic activities all across the country.

Now that's going to include agriculture, electric transmission, transportation, mining, real estate development, we'll all be affected. And these are not activities that we want to hurt deliberately especially while the housing market is in decline, while people are paying higher electric bills, while family farms are on decline, while our nation's infrastructure may be crumbling, and while the mining industry is facing new regulations.

These are the industries that create economic growth and we need them to be strong and viable. I have serious concerns on how this bill will affect my home state. There is significant unintended consequences of this legislation that will lead to absurd results in Wyoming.

It's now springtime in the Rockies and as the snow melts large temporary water holes are formed on ranches and farms all across the state. Under this bill any activity on that land that touches these waterholes would require a federal permit.

Ranchers that use stock water ponds for watering livestock would be required to obtain a federal permit before any upgrades or modifications to the pond occur. Let's talk about the larger issue for westerners across the spectrum and that is the water shortage in the West. The West is growing, but the Rocky Mountain West never has all the water that it needs.

This bill will needlessly delay construction or repair of pipelines, ditches, canals, diversion structures, and wells with more permitting requirements. Water is vital to the sustainability of Wyoming and so many other states. We should not delay such pipelines, canals, diversion structures, and wells, from being built.

Delays in providing, for water delivery not only hurts our citizens, it also hurts endangered species who need that water as part of habitat conservation plans and recovery plans across the West. Given the reasons that I have mentioned I have come to the conclusion that on behalf of the citizens of Wyoming I want to say thanks but no thanks.

Thank you, Madam Chairman.

(Applause.)

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SEN. BARRASSO: Thank you very much, Madam Chairman.

When the Clean Water Act passed initially there were some assurances made unanimously to western senators regarding allocation of water. And I think that helped ensure passage of the bill at that time. And suddenly the amendment from Senator Wallop was part of that that essentially barred Washington from overriding state control of water.

The National Water Resource Association states that this bill dramatically undermines the assurances made by Congress to the states, which was part of the Wallop Amendment.

Does this bill in your opinion erode or undermine the language in the statute included by Senator Wallop?

MS. BROWNER: No, I do not believe it does. And I think -- and I'm sure that you know that there is always just worth reminding ourselves the Clean Water Act is about water quality. It is not about water quantity. And I think what Senator Wallop was attempting to do was to make that distinction very clear. Now obviously there are times when water quantity affects water quality. But the heart of this -- of the Clean Water Act is water quality.

SEN. BARRASSO: But you continue maintaining this is not an expansion, but a clarification although everyone I talked to at home views this as an expansion not, as you claim, a clarification. And you talked about your opinion on these. And isn't just -- that's just -- your opinion is not what a judge may rule if a suit is filed.

MS. BROWNER: Let me say if I were at EPA and this bill were to pass nothing would change in terms of what EPA would be doing. EPA would continue to do the same thing it had done prior to the Rapanos decision.

There's no -- I wouldn't send out some guidance -- I mean, I take your point I'm not a judge. I do have 20 years of experience in the regulatory arena and I can continue to follow these issues. But I'm not a judge.

But I can tell you as someone who has written regulations, as someone who has written legislation, who has read a lot of these -- this in my considered opinion does not in any way change the jurisdiction of EPA and the Army Corps of Engineers when it come to protecting our nation's water quality.

SEN. BARRASSO: It would just seem that removing the word "navigable" does expand, does not just clarify and if didn't we wouldn't -- this piece of legislation wouldn't be necessary.

The -- in your opinion how is this bill going to benefit ranchers, farmers all across Wyoming and the Rocky Mountain West?

MS. BROWNER: Well, I think it benefits them in the same way it benefits all of us, which is, we are facing increasing dilemmas when it comes to water in this country. And making sure that we are able to protect areas that act as recharge, protect areas that contribute to a water body that becomes our drinking water that -- you know, our water resources are interconnected. And protecting them in a coherent way makes sense for everybody whether you're a farmer, or a mother, you know, turning on the tap water to fix their baby's bottle.

SEN. BARRASSO: I think we're just going to have --

Thank you very much, Madam Chairman. I think we just have a fundamental difference of opinion on this as a clarification or expansion, thank you.

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SEN. BARRASSO: Thank you very much, Madam Chairwoman. I would just like the record to reflect that of all of us here the only guy that brought his own water with him was the rancher from Montana. So thank you, Mr. Smith.

SEN. BOXER: (Laughs.) He doesn't trust that water at the Capitol that ---

SEN. BARRASSO: No, ma'am, no, ma'am, he knows more about it than we do, I'm ---

SEN. BOXER: Yeah, and I think we ought to change what we do up here, maybe.

SEN. BARRASSO: (Laughs) --- Mr. Smith, I appreciate your being here because I read the bill the same way you do, and as do the ranchers and water users in Wyoming. I'm just wondering if Wyoming as well as Montana, strong ranching industry , and Idaho --- can you further elaborate on what you as a rancher and Wyoming ranchers can expect in terms of these day-to-day operations of your ranchers if this bill's passed?

MR. SMITH: Senator, I guess we really don't know what the bill's going to do. It frightens me because it's taking away local control. And yes, the Clean Water Act has worked but it's being defined more critically, I guess, for lack of a better word. To take out the navigable part of the streams just opens up a whole can of worms.

On our ranch which isn't a large ranch, but we're a family ranch, I can see the potential for hundreds if not thousands of permits if this goes into --- if this bill was passed. And at the time of getting those permits from the federal government --- right now it's terribly slow if at best and it always has been slow. I guess there is some sort of fast track movement within the Corps of Engineers, but in our watershed committee just to do some watershed work along the Big Hole River, it's taken several months to get permits, maybe even almost a year just for doing water quality work. So it's a terrible effect of the ranching community in my opinion.

SEN. BARRASSO: The Wyoming stockgrowers wrote to me and they said it's their opinion that the expansion of federal jurisdiction of this bill would effectively give the federal government an authority over private lands in Wyoming and obviously Montana as well, and over the ranches, kind of equal to the authority that they currently --- that are currently exercised over public lands and national forests. Is that your concern as well?

MR. SMITH: Yes, and we maintain our water systems on a lot of our federal land out of necessity, and if we had to, for instance have a permit for the cows to cross the stream, every time they cross a stream, I mean you can see, it's a little bit ridiculous. Maybe it's mindboggling, I don't know, to me. It certainly doesn't have much common sense. Now there may be areas in the country where we need to have this sort of legislation, but out West we don't need it.

SEN. BARRASSO: And this is something you wouldn't want to have to go to the courts, go to a judge and try to deal with it on day-to- day basis and make your life very difficult I would imagine.

MR. SMITH: Yes, all the --- you know, every time we do anything, it seems like it's litigated, and this looks to me like it's a dream for a litigated, a lawyer's dream. And I don't want to offend anybody but --- (laughs) --- we use lawyers enough already, and I --- sometimes the best interests aren't always followed.

SEN. BARRASSO: Thank you, Madam Chairwoman.

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SEN. BARRASSO: Thank you very much, Madam Chairwoman. Just to say it from my opening statement, in Wyoming where the frontier spirit of smaller government and individual liberty are still sacred traditions, where we have a state of people like Mr. Smith, we are always very concerned about the federal governments' involvement in issues and more specifically related to our water. And we read these bills very carefully, we think about them very carefully and we see all of the things that Mr. Smith testified today as potential downside risks and we don't see any upside risks or upside benefit for the hardworking ranchers of our community. So thank you, Madam Chairwoman.

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