Hearing of the Senate Committee on Environment and Public Works - S. 1870, The Clean Water Restoration Act of 2007
BREAK IN TRANSCRIPT
SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Madam Administrator for being here. I appreciate it very much. Having run regulatory agencies myself and having served as a lawyer and attorney general, I am keenly aware of the value of the precedent that has been built up around a particular statute over very many years.
It's somewhat unrelated, but when I was attorney general one of the battles I fought was to get rid of our state definition of grand jury secrecy rules, so that we could model the federal grand jury secrecy rules.
And I did so not because the federal grand jury secrecy rules were word by word better than the state rules, but rather because they came with a body of precedent that span the country, that had innumerable glosses on them, and further definitions, and analysis, and discussion. And that body of precedent provided guidance to lawyers, provided stability to the process, and prevented my successors in this office from doing extraordinary, difficult, stupid, whatever things that they might have been able to slip through as state definition.
But that great body of precedent attached to the federal definition was enormously both restricting and provided practical guidance in a way that a new bill never could. So I think -- I just want to emphasize what you said. Because I think that the most important thing that you said in your testimony was exactly that. That there is this precedent developed under both Republican and Democratic administrations, correct?
MS. BROWNER: Yes.
SEN. WHITEHOUSE: Under Republican and Democratic administrators?
MS. BROWNER: Yes.
SEN. WHITEHOUSE: Primarily driven by technical, professional people, who are not partisans within the Environmental Protection Agency?
MS. BROWNER: And the Army Corps of Engineers, yes.
SEN. WHITEHOUSE: And the Army Corps of Engineers, hardly a hotbed of, you know, liberal environmentalism through a great deal over this period, correct?
MS. BROWNER: Correct.
SEN. WHITEHOUSE: And so you'd agree that there is real value to trying to revive that body of precedent.
MS. BROWNER: Yes.
SEN. WHITEHOUSE: In this case providing -- and it's valued to -- could you come out on how a developer might find value in having this body of precedent reactivated by the statute?
MS. BROWNER: Well, two points. You're exactly right. Precedent is very important and agencies are not free to do whatever they want. They have to follow the law and they have to follow the historical interpretations of the law by the agency and by the courts.
And you know, in this -- a developer should take a lot of comfort in knowing that the agency is not free to do anything. And this clarifies that in light of the Supreme Court decision. I might also note that in the Rapanos case 34 states submitted amicus briefs saying we can't do this without the assistance of the federal government.
And so there's this recognition that the precedent is as Senator as you speak to that has built up in the federal program is extremely important.
SEN. WHITEHOUSE: Yeah, including my state of Rhode Island. I'm very proud to be a part of it. But also including Kentucky, Louisiana, Senator's Vitter's state signed on, Montana, New Mexico. It's a very broad coalition.
One other quick question or observation, I guess. The Clean Water Act was passed back in 1970 --
MS. BROWNER: Two.
SEN. WHITEHOUSE: Two. And the Rapanos decision was in 2006?
MS. BROWNER: Correct.
SEN. WHITEHOUSE: So for 34 years --
MS. BROWNER: It worked.
SEN. WHITEHOUSE: We're trying to get back to whether the law of the land was developed over that great time period in which there were Republican presidents and Republican Congresses and Democratic presidents and Democratic Congresses. And if that's a pretty substantial track record for lawyers, developers, people trying to figure out whether to finance a project to look at, correct?
MS. BROWNER: Absolutely. And to put, you know, two finer points on it, most of the people interpreting the Clean Water Act over its history were Republican administrators, not Democratic administrators. And number two, I think I'm widely known for having had a very ingressive enforcement program at EPA going after the polluters.
And you know, we read this, the way it had been read historically. And at the same time the economy grew in this country. Lots of areas got developed. Things as we know it didn't grind to a halt. So you can interpret this law and still have a lot of the activities that people think are important to their communities and to their economy, to their agricultural production. It has been done before, it can be done again.
SEN. WHITEHOUSE: My time has expired.
I thank the Chair.
BREAK IN TRANSCRIPT
EN. WHITEHOUSE: Yes, I'd like to, if I may Madam Chair with unanimous consent put into the record a table showing a state-by-state analysis of the overlay between the stream categories at issue here, and the Rapanos decision, and the drinking water populations of the State which would indicate relevant, for instance, to my colleague from Wyoming's question that there are 177,871 Wyomings -- Wyomingans, sorry, whose drinking water risks being affected by waste, or sewage, or chemicals dumped into start reaches or intermittent ephemeral streams presently regulated, but at risk of losing regulation as a result of the Rapanos.
In -- Senator Carper was here, he's fortunate, he has none. Georgia it's 3.6 million people, in Idaho 242,589 (people), in Louisiana, Senator Vitter's state, 1,071,000 (people), in Maryland 3.7 million water drinkers, and the last, our Chairman's state, the great State of California, 14.2 million peoples drinking water could be affected by this decision.
And -- I would ask that to be made a matter of record.
BREAK IN TRANSCRIPT
Source