“CONSTRUCTED WATER CONVEYANCES REFORM ACT OF 1995” published by the Congressional Record on Jan. 23, 1996

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Volume 142, No. 8 covering the 2nd Session of the 104th Congress (1995 - 1996) was published by the Congressional Record.

The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.

“CONSTRUCTED WATER CONVEYANCES REFORM ACT OF 1995” mentioning the Environmental Protection Agency was published in the House of Representatives section on pages H750-H757 on Jan. 23, 1996.

The publication is reproduced in full below:

CONSTRUCTED WATER CONVEYANCES REFORM ACT OF 1995

The Clerk called the bill (H.R. 2567) to amend the Federal Water Pollution Control Act relating to standards for constructed water conveyances.

The Clerk read the bill, as follows:

H.R. 2567

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Constructed Water Conveyances Reform Act of 1995''.

SEC. 2. CONSTRUCTED WATER CONVEYANCES.

Section 303(c)(2) of the Federal Water Pollution Control Act (33 U.S.C. 1313(c)(2)) is amended by adding at the end the following:

``(C) Standards for constructed water conveyances.--

``(i) Relevant factors.--If a State exercised jurisdiction over constructed water conveyances in establishing standards under this section, the State shall consider any water quality impacts resulting from any return flow from a constructed water conveyance to navigable waters and the need to protect downstream uses and may consider the following:

``(I) The existing and planned uses of water transported in a conveyance system.

``(II) Management practices necessary to maintain the conveyance system.

``(III) Any State or regional water resources management and water conservation plans.

``(IV) The intended purposes for the constructed conveyance.

``(ii) Relevant uses.--If a State adopts or reviews water quality standards for constructed water conveyances, it shall not be required to establish recreational, aquatic life, or fish consumption uses for such systems if the uses are not existing or reasonably foreseeable or the uses interfere with the intended purposes of the conveyance system.

``(iii) Statutory construction.--Nothing in this subparagraph shall be construed to require a State to exercise jurisdiction over constructed water conveyances in establishing standards or to prohibit a State from considering any relevant factor in establishing standards or from establishing any relevant use.

``(iv) Constructed water conveyances defined.--In this subparagraph, the term `constructed water conveyance' means a manmade water transport system constructed for the purpose of transporting water for agricultural purposes or municipal and industrial water supply purposes in a waterway that is not and never was a natural waterway.''.

Committee Amendment in the Nature of a Substitute

The SPEAKER pro tempore. The Clerk will report the committee amendment in the nature of a substitute.

The Clerk read as follows:

Committee amendment in the nature of a substitute:

Strike out all after the enacting clause and insert in lieu thereof the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Constructed Water Conveyances Reform Act of 1995''.

SEC. 2. CONSTRUCTED WATER CONVEYANCES.

Section 303(c)(2) of the Federal Water Pollution Control Act (33 U.S.C. 1313(c)(2)) is amended by adding at the end the following:

``(C) Standards for constructed water conveyances.--

``(i) Relevant factors.--If a State exercises jurisdiction over constructed water conveyances in establishing standards under this section, the State shall consider any water quality impacts resulting from any return flow from a constructed water conveyance to navigable waters and the need to protect downstream uses and may consider the following:

``(I) The existing and planned uses of water transported in a conveyance system.

``(II) Management practices necessary to maintain the conveyance system.

``(III) Any State or regional water resources management and water conservation plans.

``(IV) The intended purposes for the constructed conveyance.

Mr. SHUSTER (during the reading). Mr. Speaker, I ask unanimous consent that the committee amendment be considered as read and printed in the Record.

The SPEAKER pro tempore. Is there objection to the request of the gentleman from Pennsylvania?

There was no objection.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from Pennsylvania [Mr. Shuster] and the gentleman from Pennsylvania [Mr. Borski] will each be recognized for 30 minutes.

The Chair recognizes the gentleman from Pennsylvania [Mr. Shuster].

Mr. SHUSTER. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in support of H.R. 2567, the Constructed Water Conveyances Reform Act. This correction day bill, which is the first of 1996, fixes a specific problem under the Clean Water Act that will benefit State and local officials and agricultural interests and continue, at the same time, to protect our Nation's waters.

It is also the first piece of legislation for the House to consider this year under the new constraints imposed by the Unfunded Mandate Reform Act of 1995. This bill not only passes the test of not imposing unfunded Federal mandates, it passes it with flying colors. In fact, the Congressional Budget Office finds that this bill is likely to reduce State and local costs by interjecting flexibility to avoid unnecessary water use designations.

This legislation amends the Clean Water Act to allow States greater flexibility in setting water quality standards for so-called constructed water conveyances; that is, manmade drains, canals, and other conduits to transport water for agricultural and water supply purposes.

The bill is essentially the same as provisions in the House-passed clean water bill, and is based on testimony gathered from several hearings.

It is before us today by a bipartisan coalition of Members; and, indeed, there are nine original cosponsors, five Republicans, four Democrats. So it is totally bipartisan.

Our Committee on Transportation and Infrastructure responded by reporting the bill on December 21, 1995. I particularly want to commend the gentleman from Minnesota [Mr. Oberstar], the ranking Democrat of the Committee on Transportation and infrastructure, the gentleman from New York [Mr. Boehlert], the chairman of the Water Resources and Environment Subcommittee, and the gentleman from Pennsylvania [Mr. Borski], the ranking Democrat on the Water Resources and Environment Subcommittee. They all cooperated in putting together a very reasonable package.

I also would be quite remiss if I did not commend and congratulate the primary sponsors of the bill, the gentleman from California [Mr. Condit] and the gentleman from California [Mr. Matsui] along with others who have continued to press for this legislation.

The bill fixes a problem, and that is EPA's overly stringent interpretation and implementation of the Clean Water Act as it applies to these manmade water conveyances. It fixes the problem without weakening the act. Indeed, the bill helps make the Clean Water Act even more acceptable to the public by making it more flexible and more realistic.

Over the years certain manmade ditches and canals, particularly in the arid Western States, have been designated as navigable waters that must be regulated under the Clean Water Act. States, in turn, must then establish water quality standards for the manmade canals that in some cases presume that they will be used for fishing, swimming, or even drinking.

Now, it does not make any sense to regulate an agricultural drainage canal or a ditch the same way that you quite properly would regulate a pristine lake or a navigable river. It simply does not make sense to put farmers and municipal and State water officials in a regulatory straitjacket.

So this legislation fixes that problem, Mr. Speaker. For example, rice growers in California have manmade ditches and drains which help remove excess water from the fields. It does not make sense to treat the water before it enters the drains as if it were entering a swimming hole or a lake. Rice and cotton and other commodity growers in other States, such as Missouri, Louisiana, Texas, and Colorado have cited similar problems.

And what is the cost of this overregulation? An EPA mandated use attainability analysis alone, this is simply the analysis, could cost several hundred thousand dollars. For example, the municipal water officials in Arizona tell us that the canals transporting raw water to drinking water treatment plants should not be subject to water quality standards designed for water bodies that people swim in and fish in and drink from.

Fro Phoenix alone, one city, the cost of these added, unnecessary requirements would be $66 million. In addition, annual maintenance costs would be $12 million. That is over 25 times their current annual cost.

This needs to be fixed and that is only one city, so you can extrapolate it to see what the overall cost would be for the American people.

{time} 1430

In an effort to accommodate the minority and to reflect comments from EPA, we have made several changes to the bill that was introduced, and those changes are described in detail in the committee report.

We have clarified that nothing in this bill prevents a State from considering any relevant factors or uses in setting standards. In other words, nothing, absolutely nothing, prevents States from doing what they need to do.

We have revised provisions so that the States are authorized, not mandated, to consider certain factors and uses.

Among the many supporters of this legislation are included the Western Governors Association, the Western States Water Council, the Western Coalition for Arid States, the National Water Resources Association, the Western Growers Association, the California rice industry, the USA Rice Federation and the city of Phoenix, AZ. This is a bipartisan bill, supported by Members across the country, and I urge its adoption.

Mr. Speaker, I reserve the balance of my time.

Mr. BORSKI. Mr. Speaker, I yield myself such time as I may consume.

(Mr. BORSKI asked and was given permission to revise and extend his remarks.)

Mr. BORSKI. Mr. Speaker, I rise to support H.R. 2567, the Constructed Water Conveyances Reform Act. I particularly want to commend my California colleagues, Mr. Fazio, Mr. Matsui, and Mr. Condit, who have worked to get this bill onto the House floor today.

We have worked with them and with the majority to develop a bill that will meet the specific needs of the districts represented by my California colleagues while assuring protection of human health and the environment. It deserves the approval of the House.

When H.R. 2567 was introduced, I was concerned that it was too broad and that it lacked clear standards for States to use in setting designated uses for constructed water conveyances. However, the chairman was willing to work in a bipartisan manner to modify the bill, and to include explanatory language in the committee report which alleviated most of my concerns.

Mr. Speaker, the Constructed Water Conveyances Reform Act reflects the desire of owners of constructed water conveyance systems to have greater flexibility in how the standards of the Clean Water Act apply to those conveyances. It has been modified to assure that this flexibility is tempered with the responsibility to take reasonable, affordable measures to assure protection of water quality.

Obviously there may be situations where the fishable and swimmable standards applicable to natural waterways would not be appropriate for constructed waterways. However, we should not automatically assume that all constructed conveyance systems would be subject to lower standards under this bill. There must be some meaningful interference with the authorized purposes of the conveyance to justify any lesser level of protection.

Mr. Speaker, I believe that H.R. 2567 will allow States the flexibility which they seek while assuring protection of human health and the environment. I thank the chairman for his willingness to work in a bipartisan manner to address my concerns about the bill, and I urge my colleagues to support it.

Mr. Speaker, I reserve the balance of my time.

Mr. SHUSTER. Mr. Speaker, I yield 3 minutes to the gentleman from New York [Mr. Boehlert], the distinguished chairman of the Subcommittee on Water Resources and Environment.

Mr. BOEHLERT. Mr. Speaker, I want to thank the chairman for the openness that has been evident all through the consideration of this bill. It is noncontroversial now. As a matter of fact, the provisions of this bill were included in the committee bill, H.R. 961, and the substitute that my colleague the gentleman from New Jersey [Mr. Saxton] and I offered to that.

Frankly, I wish the bill was not necessary, but the truth is there are times when the Clean Water Act is interpreted and applied too narrowly and the views of State and local water officials are not adequately taken into account. This bill improves the Clean Water Act and the flexibility and responsiveness to site-specific circumstances, while keeping in place all the successes and important goals of the Act.

Because certain so-called constructed water conveyances are interpreted to be navigable waters under the Clean Water Act, States are required to set water quality standards for the conveyances. The problem is that in some situations the standards are set with the automatic assumption that the ditches or drains or canals will be used for swimming or fishing or drinking. This can lead to, as we understand it, very costly and unnecessary requirements.

In response, the bill makes clear that States do not automatically have to establish standards based on recreational, aquatic, or fish consumption uses for these constructed water conveyances. Nothing in the bill, however, prevents a State from doing so if it wants.

So we would say to the States, ``If you want to do it, you can do it. We're not going to prevent you from doing it.'' Also, nothing in the bill exempts constructed water conveyances from regulation under the act.

The committee added additional safeguards and clarifications to the introduced bill and worked with all interests to reach a reasonable compromise. I want to emphasize that: worked with all interests to reach a reasonable compromise.

No one can say this bill weakens the Clean Water Act. Boy, I would not be identified with anything that would weaken the Clean Water Act. It simply gives State officials more flexibility to take into account specific situations.

I urge my colleagues to support this bill, and I want to thank the chairman for the leadership that he has provided and for the opportunity he has afforded me to work with him.

Mr. Speaker, I would invite those Members who have not done so, to visit the committee room and witness the new portrait of our chairman. It is a magnificent work of art.

Mr. BORSKI. Mr. Speaker, I yield 5 minutes to the distinguished gentleman from California [Mr. Condit], the original sponsor of this bill.

Mr. CONDIT. Mr. Speaker, I want to thank Chairman Shuster and Ranking Member Oberstar for helping move H.R. 2567, the Water Conveyance Reform Act of 1995, expeditiously through the committee and to the House floor today.

Without your leadership and bipartisan effort, none of this could be accomplished.

I also want to thank the corrections day advisory task force for their understanding of the need for this legislation and the support it deserves.

Basically, the problem exists with EPA's interpretation of the Clean Water Act.

The EPA has interpreted constructed water conveyance facilities to be waters of the United States and therefore subject to the same Clean Water Act standards as California's most pristine mountain streams.

In the case of California rice, many facilities proposed for regulations were specifically constructed as part of the tremendous and widely acclaimed successful effort to keep agricultural drain water out of the Sacramento River and the Sacramento-San Joaquin Delta.

Basically my bill is designed to easily rectify this situation by amending the Clean Water Act to make it clear that no State need regulate water within a constructed conveyance facility except to ensure the facility's continued use for the purpose for which it was constructed; and to prevent water quality problems in downstream natural waterways.

I firmly believe this is a unique opportunity to address a problem that has confronted the rice industry for a couple of years and portends to turn into a significant economic and environmental hardship for the Central Valley if not repaired.

Lastly, I want to especially point out Congressman Matsui and Congressman Fazio for their efforts with this bill and also thank Members who cosponsored H.R. 2567.

In a time when there has been limited bipartisan effort on legislation, the Constructed Water Conveyance Reform Act of 1995 truly demonstrates we can work together to find solutions to real problems.

I would ask all my colleagues to support this legislation.

Mr. SHUSTER. Mr. Speaker, I want to be certain that I also acknowledge the tremendous contribution to this effort of the gentleman from California [Mr. Fazio]. We certainly very much appreciate it.

Mr. Speaker, I yield 3 minutes to the gentlewoman from California

[Mrs. Seastrand], a member of the committee.

Mrs. SEASTRAND. I thank the gentleman for yielding me the time.

Mr. Speaker, I rise in strong support of this legislation. This bill is a commonsense reform to the Clean Water Act, it has significant bipartisan support and it is a necessary amendment and I thank Mr. Condit and Shuster for their leadership in bringing it to the House floor.

It must be stressed that when the original Clean Water Act was constructed it was designed to require States to establish water quality standards for navigable waters used for fishing, swimming, or water supply purposes. This amendment to the act gives States the authority rather than the Federal Government to regulate facilities constructed to transport water for municipal, agricultural, or industrial purposes which were never meant to support recreation or aquatic life.

This legislation will realize savings for U.S. EPA. The agency will no longer have to review and approve State's plans for water conveyance systems. Savings will also be seen at the State level in that they will no longer be mandated to oversee the implementation of constructed conveyance facilities. These total more than 6,300 in central California that have a combined excess of 20,000 miles. Similarly, the correction will save State and local governments money so they will not be forced to develop control plans for constructed conveyances or develop implementation plans. Finally, private citizens will see a reduced cost for their water supply or at least a slowing in the rate of increase.

Again, Mr. Speaker, I wish to thank Mr. Condit and Mr. Shuster for their hard work on this sound legislation which I wholeheartedly support.

Mr. BORSKI. Mr. Speaker, I yield 2 minutes to the distinguished gentleman from California [Mr. Fazio], a prime sponsor of the legislation before us.

Mr. FAZIO of California. Mr. Speaker, I would like to thank both the gentlemen from Pennsylvania and the gentlemen from Minnesota and New York for helping those of us in the West solve a problem. This is something that means a lot to us in Nevada, Arizona, and California where we have many thousands of miles of canals, of water conveyances constructed largely on private property maintained by reclamation districts, irrigation districts that are basically made up of the property owners who pool their resources to make it possible for us to evacuate these conveyances into streams and rivers in a way that is most beneficial for clean water.

But we did not need the regulation of EPA and the Clean Water Act, and this bill makes clear we do not need it. The State of California, for example, and I believe the State of Arizona as well, maintained that they needed to follow a rigorous policy of enforcing the Clean Water Act in these private drainage canals because of the Federal requirements. We make it clear that if any further action is taken on this level, it will be at the requirement and the behest of the State and local government.

As has already been indicated, this is a great potential savings not only to EPA and to the State water quality agencies and entities, regional as well as statewide, but most of all to the local landowners who have been in most cases already in the lead in trying to handle the environmental problems that they encounter in their crop patterns, in their rice industry or in the cotton industry, as the case may be. They deserve the attention of the administration, they have gotten it from the President, and even though the administration indicates they have some work they want to see done on this bill in the Senate, I think they have indicated that they understand the problem needs to be addressed and they are willing to work with us to make sure that it will be before the end of this Congress.

Legislation very similar to this was included in the Clean Water Act that passed this House. This problem is of such a magnitude that the gentleman from California, Mr. Condit, along with Mr. Matsui and myself, felt it needed to come up on the Corrections Day occasion. I appreciate the leadership he has provided. I appreciate the fact that we could bring it here and attempt to solve this problem, which stands out from others, in a way that will not require us to come to the conclusion of the Clean Water Act fix which remains controversial and may yet fail to get to the President.

Mr. Speaker, I would like to thank all of my colleagues for allowing this legislation to come to the floor. It means a great deal to agriculture in my district. They will be very gratified to see that reason has prevailed here in Washington on something that makes so much sense to them.

Mr. Speaker, I include my statement on this legislation for the Record, as follows:

Mr. Speaker, I want to make my colleagues aware of a serious problem in my district in California. Currently, the Clean Water Act is being applied somewhat capriciously to agricultural drainage conveyances. One of the legitimate concerns in my community is that when we apply Federal regulations we do so with good intentions but sometime with a bad outcome. In this case, the Government--in its effort to protect the water quality of natural waterways--is extending its reach to man-made systems that are designed to protect against contamination in the natural waterways to which these facilities ultimately drain.

Several months ago President Clinton visited the State of California and met with growers including constituents from my area. They conveyed to the President how burdensome this expansion of the Clean Water Act was becoming to California agriculture. President Clinton agreed. It was clearly not the intent of the Clean Water Act to try and bring agriculture drainage systems up to the standards applied to pristine mountain streams.

I have a large majority of rice growers in my area and they are committed to making progress in protecting the environment. The difficulty they face is when they are forced to meet unreasonable measures that do nothing to meet that goal.

I appreciate President Clinton's support for this clarification. I understand that the Administration may have some concerns regarding the bill's expansion to include industrial and municipal conveyances. I will do everything I can to see that these concerns are addressed in the Senate. It is critical, however, that this measure move forward and that the agriculture industry in my State be reassured that Congress is willing and able to address this problem.

I strongly ask my colleagues' support.

Mr. SHUSTER. Mr. Speaker, I yield 2 minutes to the gentlewoman from Nevada [Mrs. Vucanovich].

Mrs. VUCANOVICH. Mr. Speaker, I am happy to rise in support of H.R. 2567 our 12th corrections day bill and the first bill of the 2d session of the 104th Congress. I congratulate Chairman Shuster for moving this legislation so quickly to the floor. I also congratulate Mr. Condit for introducing this bill.

In only 5 months time the House has considered 11 bills under this calendar and passed all of them. The Senate has sent three of those bills to the President for signature. I believe we are compiling a record of success and that the corrections calendar will become heavily relied upon by the House as a way to fix past errors.

The American people are demanding a more responsive Government, and corrections day is a key part of delivering on their demands.

On the floor today, we again have a prime example of the need for the corrections day process. Here we have the EPA interpreting the Clean Water Act to require the State of California to consider irrigation ditches as waters of the United States, and, therefore, subject to the same Clean Water Act standards as the most pristine mountain streams. Everyone can recognize this as being ridiculous but a strict reading of the act results in this problem.

The only reasonable solution is for Congress to step in and make the much needed change. Mr. Condit's bill was introduced only a couple of months ago and already we have it here on the House floor. I want to recognize Chairman Shuster for his hard work in getting this bill to the floor in such short order. I am hopeful that the other body will recognize the need for quick action and send this bill to the President without delay.

{time} 1445

Mr. BORSKI. Mr. Speaker, I yield 2 minutes to the distinguished gentleman from California [Mr. Miller].

(Mr. MILLER of California asked and was given permission to revise and extend his remarks.)

Mr. MILLER of California. Mr. Speaker, I rise in opposition to this legislation and when I say that, when I say in opposition, I say in opposition in its current form because I believe the bill, as it currently is written, is overly broad and allows an exemption far greater than that that is necessary.

I also want to recognize the work of my colleagues from California, the gentleman from California [Mr. Fazio], the gentleman from California [Mr. Condit], and the gentleman from California [Mr. Matsui], for the attention they have given this problem to address what has been considered a very legitimate problem in California with respect to the use of these facilities.

My concern with this legislation is that in fact what we now see is that this use of these facilities will override, should the State so decide, will override the public health and safety and environmental quality. These facilities, in many instances, are used to discharge agricultural water from the lands, as my colleagues have pointed out, but I would also suggest to you that these facilities are being used for a multiple of other purposes, including fish and wildlife and water-based recreation contact and noncontact use of these waters. Some of these facilities are rather large and, in fact, in the State of California now in the Delta-Mendota Canal and the California aqueduct dedicated under the Clean Water Act, including contact and noncontact recreation, warm-water fish and wildlife habitat and used by thousands of people over the year for sport fishing. In southern California, water from the Colorado River flows into many canals serving the Palo Verde irrigation district, Imperial irrigation district, and, again, fishing and contact use of the water is made by other than agricultural interests.

The Imperial irrigation district and in several locations in Texas near the border with Mexico, low-income people, unfortunately, in this country live alongside these irrigation canals and depend upon them for subsistence fishing, for bathing and even drinking supplies because of the of the tragic situations they find themselves in with respect to housing conditions in those areas.

In the Palo Verde Basin, a significant amount of sport fishing takes place in the Palo Verde Outfall Dam. Some swimming and boating also occurs here.

The point is this. Here, Mr. Speaker, I think this legislation, and I think the gentleman from California [Mr. Fazio] already mentioned it, the administration is continuing negotiations. I would hope this legislation could be more narrowly drawn to protect those public health and safety issues that can occur under the legislation as currently drafted.

The EPA memorandum follows:

U.S. Environmental Protection Agency,

San Francisco, CA, January 18, 1996.Subject: Status of Corrections Day Bill HR 2567 Constructed

Water Conveyance Reform Act of 1995.From: Catherine Roberts, Congressional Liaison Officer.To: Felicia Marcus, Regional Administrator.

The Corrections Day bill HR 2567 introduced by Representative Gary Condit and co-sponsored by Representatives Robert Matsui and Vic Fazio was passed by the Committee on Transportation and Infrastructure by voice vote on December 14, 1995. Headquarters expects the bill to move to the House floor as soon as January 23, 1996 although it is possible that a delay will occur until the next Corrections Day.

The original purpose of the bill as described by Representative Condit's staff was to provide relief to the rice industry from the designation of uses for irrigation return flows. It was on this basis that Representatives Fazio and Matsui were persuaded to be co-sponsors although Mr. Fazio withheld support until a few days before Committee mark up of the bill. However, the Committee had entirely different intentions than the ones expressed by the California sponsors. Indeed, it became evident that the Committee, Chaired by Representative Bud Shuster (R-PA), wished to provide relief to any state nationwide with manmade/constructed water conveyances for agriculture, municipal and industrial purposes.

Historically, Region 9, at the request of Senator Harry Reid during the 103rd Congress, participated in a working group comprised of arid west states to develop amendments to provide flexibility in the Clean Water Act for states in the Arid West. The proposed amendments were originally designed for a more broad set of physical characteristics such as ephemeral streams in the arid west than just constructed water conveyances. Nevertheless these types of conveyances were recognized in a subsection of the amendments and were given relief under specific criteria. These amendments were included in the Clean Water Act reauthorization and passed by the Senate in the summer of 1994. In the House of Representatives, the reauthorization of the Clean Water Act failed to emerge from the Committee on Transportation and Infrastructure. Arid west amendments were subsequently included in HR961 passed by the House during the first session of the 104th Congress but the language and intent was changed significantly from the original Reid amendment.

The significance of the changes made to the original language on constructed water conveyances were associated with: (1) broadening applicability to the whole country instead of limiting it to the arid west; (2) broadening the definition of constructed conveyance and; (3) the addition of a clause describing relevant uses. These changes were made in HR961 and then extended further in HR2567. Representative Condit's office initially did not realize that HR2567 had been taken out of the arid west context and thus made relevant nationwide. This issue was immediately raised by Region 9 and was recognized by Mr. Condit's staff as needing further discussion. However, we were to discover that the majority staff on the Committee were not receptive to the limitation to arid west states. During our conference calls with Committee staff, it was expressed that it was their intention to retain the original language in HR961 since it had already passed the House however the Committee markup resulted in expanding the language further and well beyond the carefully phrased language in the original Reid Bill.

The passage of this bill is a high priority for Mr. Condit for several reasons not least of which is that a

``commitment'' was made to the rice industry President Clinton's Central Valley visit regarding constructed water conveyances. The substance of this discussion has been narrowly summarized as providing relief through a Correction's Day Bill. The efforts of the WMD and the State of California to work with the rice industry on their concerns has been seriously overlooked by the bill's co-sponsors. We believe that the Clean Water Act already provides the flexibility to address their concerns and indeed exemptions have been made by the State.

The debate on this bill has been further complicated by the very different concerns raised by the state of Arizona. Arizona actively supports the bill and is in the process of trying to dedesignate uses for some of their constructed water conveyances. It appears that the preferred approach is to carve out permanent legislative relief rather that working within the parameters of the existing CWA. Furthermore, the efforts of EPA staff to work with the various stakeholders whether from Colorado or California through a consensus process is being forfeited to political expediency.

At this point HQ is recommending to OMB that the bill as written be vetoed by the President. The recommendation is based on a number of concerns that were presented to OMB as official Agency comments (attachment). In essence, HQ stated that HR2567 would exempt States from establishing standards for constructed water conveyances, specifically for the adoption of standards for recreation, aquatic life and fish consumption. HQ comments further state that the purpose of the water conveyance system is given a higher priority than the protection of human health and the environment. There are a significant number of water bodies defined as waters of United States that could be impacted by HR2567 and we have provided a preliminary list of these areas for HDQ and the House Minority staff (attachment). Unfortunately, HQ has very limited information on impacts to waters in Regions other than Region 9 and 6.

The House Transportation and Infrastructure Committee is chaired by Bill Shuster (R-PA) who will be taking the lead along with Sherwood Boehlert (R-NY) on the floor debate. It is expected that the argument for passage will be a simplistic reference to this bill as being part of the already passed HR961. The Region 9 Members on this Committee are as follows: Bill Baker (R), Jay Kim (R), Steve Horn (R), Andrea Seastrand (R) and Bob Filner (D). In addition, Representatives Condit, Fazio and Matsui will also be there to encourage their colleagues to vote for a bill that will give relief for the rice industry. I have included for your review a copy of HR2567, the original Reid amendments, Region 8 comments and a statement by Representative James Oberstar

(D-MN) the ranking minority Member on the Committee

(attachment).

If you have any questions or need further assistance please let me know at x1560.

Attachments.

epa comments on h.r. 2567

EPA believes that H.R. 2567, relating to standards for constructed water conveyances within the context of the Clean Water Act (CWA), is unnecessary. Current CWA authority already provides the necessary flexibility to address standards for constructed water conveyances.

H.R. 2567 would:

Exempt States from establishing standards of any kind for constructed water conveyances and

Exempt States (when they do develop standards for constructed water conveyances) from adopting recreation, aquatic life, fish consumption uses if these uses ``are not existing or reasonably foreseeable or such uses impede the authorized uses of the conveyance system.''

This language essentially sets the water conveyance use above the protection of human health and the environment and lacks a mechanism to ensure that the basic water quality protections of the CWA, even if existing, are maintained. Such categorical exclusions are inappropriate. Site-specific analyses and use attainability analyses under current authority and implementing regulations can and should be conducted to determine the appropriate requirements for water conveyance systems on a case-by-case basis.

Because of the blanket exclusion in H.R. 2567 for all water conveyances anywhere in the country, this bill could have resulting adverse impacts on water quality affecting not only water quality in arid/semi-arid areas, but a substantial number of water bodies nation-wide. In addition the H.R. 2567 does not anticipate any additional impacts due to new, non-agricultural development which could add stormwater discharge to the conveyance and result in increased flows during storm events (see suggested changes in (C)(i)(II) below).

Whether a use is existing or not does not mean that it is not attainable (see #2 above). Also, the meaning of

``reasonably foreseeable'' should be clearly defined.

The statutory construction provision in subsection (iii) would allow States to avoid exercising jurisdiction over constructed conveyances at all, although they may be supporting at least limited aquatic life, wildlife or irrigation uses, clearly avoiding the goals of the Act set out in Sections 101(a)(2) and 303(c). Since many of the conveyances are functionally perennial rivers, the definition of constructed water conveyance is similarly flawed.

If this bill were to go forward we offer the following suggested changes (If however, the intent of this bill expands to include municipal water conveyances, we would need to reevaluate the specific language to be protective of human health and the environment.):

Suggested changes are in italics deleted matter in bold brackets:

Section 1. Arid West Constructed Water Conveyances

(i) Relevant Factors.--

* * * * *

(II) Any water quality impacts resulting from any [return] flow from a constructed water conveyance to navigable waters and the need to protect hydrologic integrity at the confluence with navigable waters, as well as downstream

[users] uses.

* * * * *

(ii) Relevant Uses.--If a State adopts or reviews water quality standards for constructed water conveyances, it shall not be required to establish recreation, aquatic life, or fish consumption uses for such systems it the uses are not existing or reasonably foreseeable [or] and such uses unreasonably impede the authorized [uses] purposes of the conveyance system.''

* * * * *

(iv) Constructed Water Conveyances Defined.--In this subparagraph, the term `constructed water conveyance' means a manmade agricultural drainage water transport system....''

(v) Arid West defined.--In this subparagraph, the term

``Arid West'' means an area in the western portion of the United States that typically receives less than fifteen inches of rain on an annual basis.

(v) Arid West defined.--In this subparagraph, the term

``Arid West'' means an area in the western portion of the United States west of the 100th meridian.

In summary, EPA believes that the legislation is unnecessary, that the flexibility contained in the CWA currently gives States the functional equivalent of this bill; and that a case-by-case analysis is the way to determine which conveyances deserve the exclusions provided in H.R. 2567.

Mr. SHUSTER. Mr. Speaker, I yield 2 minutes to the gentleman from Arizona [Mr. Hayworth].

Mr. HAYWORTH. Mr. Speaker, I would like to thank the gentleman from Pennsylvania and the distinguished chairman for yielding me the time, also for his hard work on this important issue.

I turn to this side of the aisle and see my very good friend, the gentleman from California [Mr. Condit], who has worked so hard on the same.

Mr. Speaker, one of many issues addressed here, and I have risen on many occasions to note that what this entire exercise should be all about, is what is reasonable, what makes sense, and I believe, as part of the Corrections Day, this piece of legislation is eminently reasonable because it resolves a problem that agricultural interests and endeavors have experienced with the Clean Water Act.

H.R. 2567 will modify the way the Clean Water Act applies to constructed agricultural drains, recognizing that this law was never intended to bring the quality of agricultural runoff to the level of a pristine stream.

I am pleased to be a cosponsor of H.R. 2567. I urge the adoption of this commonsense legislation, and, Mr. Speaker, I pause again and make note of the commonsense consensus in this Chamber on this act, on this corrections exercise.

Mr. BORSKI. Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Texas, Mr. Pete Geren, and, in fact, I welcome him back to the Committee on Transportation and Infrastructure.

Mr. PETE GEREN of Texas. Mr. Speaker, I rise in support of H.R. 2567, the Constructed Water Conveyances Reform Act of 1995.

This legislation, introduced by my colleague, the gentleman from California [Mr. Condit], corrects the improper application of the Clean Water Act to constructed water systems. Constructed water systems are otherwise known as ditches and canals.

It clearly is the intent of Congress to cover a wide array of natural waters or water bodies in establishing water quality standards. However, it was not Congress' intent to subject constructed water systems to the act's very strict requirements.

Earlier this session, the body passed H.R. 961, the Clean Water Act Amendments of 1995, to provide greater flexibility to the States in setting water quality standards. This legislation contains similar provisions allowing the States to recognize the special features and purposes of agricultural water conveyances. Under this bill, the State will be allowed to make distinction between a manmade water transport system and a constructed water body used for recreation, aquatic life or fish consumption, and establish appropriate standards. This legislation is critical for arid States such as California and Arizona, where farmers must construct manmade waterways and irrigation canals in order to support agricultural industry.

Mr. Speaker, lastly, I would like to note that this is the first piece of legislation that would fall into the new unfunded mandate law passed and signed into law last year, a bill also authored by the gentleman from California [Mr. Condit]. The supporters of this legislation are proud to point out CBO has certified H.R. 2567 would actually reduce costs to States because it would give States greater flexibility when establishing water quality standards for constructed water conveyances.

This is a win for the States. This is an effort to inject commonsense reform into the application of a very important act. I urge my colleagues to support this bill.

Mr. BORSKI. Mr. Speaker, I yield 2 minutes to the distinguished gentleman from New Jersey [Mr. Pallone].

Mr. PALLONE. Mr. Speaker, I am very concerned about continued efforts to use the Corrections Day Calendar for exceptions to the Clean Water Act, particularly with regard to the overall goal of the act of achieving fishable and swimmable waters.

As we know, water bodies are in no way isolated. They are all part of the cycle.

I am concerned, and I believe a lot of other people who swim, boat, and fish would be concerned, if water in water conveyances were being held up to a lesser standard than any river, lake, or stream, because one is not mutually exclusive of the other.

I share the concern of the gentleman from California [Mr. Miller], which I believe is also shared by the administration, that this bill will have a broader impact than is necessary and that, as a result, the negative impacts of the legislation will be greater than anticipated by its sponsors. No one can know the impact that relaxing standards on all conveyances will have on water quality overall, and substandard water that may flow from a conveyance into navigable waters will have a varying degree of impact over time.

However, this impact will be cumulative, and receiving water will in some ways degrade. The bottom line, in my opinion, is that maintaining certain water quality standards for conveyances will in no way interfere with the intended purposes of conveyance systems. It will, however, ensure the safety of those that fish and swim in our Nation's waters, as well as protect invaluable aquatic habitat.

For these reasons, Mr. Speaker, I do urge opposition to the bill.

Mr. BORSKI. Mr. Speaker, I yield 7 minutes to the gentleman from Minnesota [Mr. Oberstar], the distinguished ranking member who, in just a short few months, has done such an outstanding job on the Committee on Transportation and Infrastructure.

(Mr. OBERSTAR asked and was given permission to revise and extend his remarks.)

Mr. OBERSTAR. Mr. Speaker, I compliment our ranking member, the gentleman from Pennsylvania [Mr. Borski], for the splendid job he continues to do as our voice on the Subcommittee on Water Resources. I want to express my appreciation to the chairman, the gentleman from Pennsylvania [Mr. Shuster], and to the gentleman from New York [Mr. Boehlert], chairman of the Subcommittee on Water Resources, for their cooperative spirit as we worked our way through this legislation.

Initially, as introduced, I was opposed to H.R. 2567. However, due to the willingness of the chairman, the gentleman from Pennsylvania [Mr. Shuster], the chairman, the gentleman from New York [Mr. Boehlert], of the subcommittee, to work with us both in making substantive changes in the language of the bill and in committee report language to further clarify bill language, we have, I feel, addressed our concerns, certainly the concerns that we have had on this side of the aisle, and those that the administration had, and, as a result, I do not oppose its passage. I am not for it, but I do not oppose it.

What really troubles me about where we are today and what we are doing today, is that for the second time in this Congress, our Committee on Transportation and Infrastructure is on the floor with a bill considering an item under corrections day procedure on an issue where there is either nothing or relatively little to correct or something that is in the process of being corrected by the administration. We are here considering a bill which would more appropriately and more properly be considered under one of the other calendars of the House, either the Union Calendar, where there would be general debate and an open amendment process or on the Suspension Calendar, where an individual Member would have more leverage to express their concerns and have those concerns addressed because the bill has to pass by, we know, two-thirds on the Suspension Calendar.

I just viscerally oppose this corrections day process. In all of my 32-years' experience in the House, I think this is a very dangerous deviation from long-established process that protects interests that otherwise do not have an adequate voice.

Now, I know corrections day was intended to address inappropriate laws or laws that people called dumb or regulations that are inappropriate or where there is a consensus that they ought to be corrected. Bills under this calendar were supposed to be narrow in scope, to address an immediate need that could not await reauthorization legislation. Well, that is the framework within which this corrections day was spelled out in the advisory to House Members last year.

There is no reason this particular bill could not await the Clean Water Act reauthorization. In fact, a similar provision was included in H.R. 961. As we have already heard today, the bill is not noncontroversial.

My colleague, the gentleman from California [Mr. Miller], had very serious objections to it. The administration has expressed further reservations which they hope to have addressed when the bill reaches the Senate. If they are not addressed there, I suspect the administration would be opposed to the bill.

Rather than making a limited technical amendment, the bill has far-

reaching policy implications.

Now, the worst of those, fortunately and wisely, and I think in a very timely fashion, was addressed by the majority in our process of negotiation, and, thank goodness, this bill came through this committee and not through some other committee where things are very contentious. We might have something very lopsided on the floor. I think we have a bill that has a reasoned approach to this problem.

But, again, my objection is on the basis of process. There is no opportunity for amendment to this bill. There is no opportunity for votes on such amendments, and I think that we ought to have an issue of this magnitude considered under a process where it could be open to amendment.

If there is going to be a continuation of this corrections day procedure, it ought to be limited much more narrowly than it has been in the two instances arising out of our committee and in the 10 other instances of other bills that have been considered so far in this Congress.

I expressed concerns during our committee markup that the bill would allow States to forgo protection of human health and the environment in order instead to accommodate industrial, agricultural, and municipal interests who want to save money.

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Even in situations where it would be possible to strike a reasonable balance that would simultaneously accommodate multiple uses of a constructed water body and protect human health. I think we have to be sensitive, regardless of who owns this body of water, that all these waters eventually are in the public domain. There are many constructed water bodies that States have designated for uses both for irrigation, agriculture drainage, and for recreation, aquatic life, and for fisheries. Experience has shown us that we can use water bodies wisely, in a multiple-use way, for a wide range of purposes, for swimming, for example, and for irrigation, but also protect those individual multiple uses.

We should not obstruct our ability to work in the normal legislative process to address these issues in the normal legislative way, open to amendment, open to broad and extensive debate and discussion, and to address, particularly in the environment, particularly in this area, of staying on course, to achieve the objective of the Clean Water Act of 1972 to make our waters fishable and swimmable.

Mr. Speaker, corrections day was to address inappropriate or dumb laws or regulations about which there would be little controversy. Corrections bills are supposed to be ``narrow in scope'' and to

``address an immediate need which cannot await reauthorization * * * legislation.'' These are requirements spelled out by the Corrections Day Advisory Group in its letter to House Members last summer.

There is no reason this bill could not await Clean Water Act reauthorization, especially in view of the fact that a similar provision was included in H.R. 961. Moreover, this bill is not noncontroversial, and is not limited to a specific problem. Rather than making a limited technical amendment, this bill has far-reaching policy implications. Prior to committee action I recommended amending H.R. 2567 to address only the particular irrigation issue which gave rise to the bill, but that suggestion was rejected by the majority. Instead, we have a bill of national application with no consideration of its national implications.

Most disturbingly, there is no opportunity for amendment on this floor. Had this been brought to the floor as a freestanding bill on the Union Calendar, it would have been open to amendment. If it were brought on the Suspension Calendar, it would have been subject to a higher level of consideration, where a Member with concern over this issue could have insisted that his or her concerns be reflected in the final version of the bill considered on the floor. This bill should be considered either on the Suspension Calendar or in regular order, not on the Corrections Calendar.

Mr. Speaker, if there is to be a corrections day, let us limit it to true corrections, and not subvert the regular legislative process.

This bill would allow States to not establish recreational, aquatic life, or fish consumption uses for certain constructed water conveyances in limited circumstances where these uses would give rise to an unreasonable burden.

During markup of H.R. 2567 I expressed concerns that the bill could allow States to forego protection of human health and the environment in order to accommodate industrial, agricultural, and municipal interests in saving money, even in situations where it would be possible to strike a reasonable balance that simultaneously accommodates multiple uses of a constructed waterbody and protects human health.

There are many constructed waterbodies that States have designated both for uses such as irrigation, agricultural drainage, and flood control and for recreation, aquatic life, and fish consumption. Experience has proven that we can use waterbodies for a range of purposes--for example swimming and irrigation--and simultaneously protect those multiple uses. This Congress must not obstruct our proven ability to strike a reasonable balance that both protects people who swim and fish in constructed waterbodies, and avoids unreasonable burdens on agricultural and municipal and industrial interests.

Mr. Speaker, I would like to mention two of the most important improvements made during committee consideration of H.R. 2567:

First, under the bill as introduced, States were not required to establish water quality standards for recreation, aquatic life, or fish consumption uses if those uses would impede other authorized uses of the waterbody. I was vigorously opposed to this provision because it set a very low threshold for excusing the protection of recreation and other uses and thereby endangering human health. Where multiple uses, such as swimming and fishing and agriculture, can reasonably be accommodated, it would be a terrible precedent to allow for standards that fail to protect people who swim and fish in canals.

The preferable approach would have been to modify the bill by eliminating the clause concerning interference with the intended purposes of the conveyance system. The committee amendment substituted the word ``interfere'' for the word ``impede.'' This change and the explanation in the legislative history indicate the committee's intent to establish a meaningful, substantive threshold.

The committee amendment reflects the intent that States will be required to establish water quality standards for recreation, aquatic life, and fish consumption uses, unless doing so would create an appreciable interference that diminishes the ability of the conveyance to accomplish its intended purpose. As the chairman noted in the committee report, ``[g]enerally speaking interference caused by reasonable, affordable measures to accommodate multiple uses would not be expected to exceed the threshold.''

For example, measures that would not be expected to meet the threshold for modifying the requirement to establish water quality standards for recreational, aquatic life, or fish consumption uses include rice growers in California who have changed irrigation practices in order to capture, hold, and reuse irrigation water contaminated with herbicides. The new practices significantly reduce the amount of chemicals discharged to the Sacramento River, while reducing the amount of water used and, therefore, the cost of the water. Measures such as these would not be expected to justify a State's decision to not establish water quality standards for recreational, aquatic life, or fish consumption uses.

The second amendment I would like to note narrows the breadth of the bill, by clarifying that it does not apply to conveyances constructed for navigational purposes. As introduced, H.R. 2567 applied to constructed conveyances regardless of their purpose. The bill reported by the Transportation Committee limits the application of the bill to those conveyances constructed for agricultural purposes or municipal and industrial water supply purposes. Although I believe that the bill should be narrower still, I believe that this modification is an important one.

Under H.R. 2567 as reported by the Transportation Committee, if a constructed water conveyance was constructed for or serves more than one purpose, and navigation is one of those purposes, then that conveyance is not covered by the bill.

Finally, Mr. Speaker, I would like to point out a few ways in which I believe H.R. 2567 does not alter current law under the Clean Water Act. The bill does not modify existing law relating to the authority of the Environmental Protection Agency to approve or disapprove water quality standards. Nor does the bill authorize the downgrading of existing uses. Finally, the factors for consideration under subparagraph (C)(i) of the bill are in addition to, not in lieu of, those under current law at section 303(c)(2) of the Clean Water Act.

Mr. Speaker, with the changes offered by the chairman and adopted by the committee, and with the explanation of the bill in the committee report and as outlined above, I do not oppose passage of this bill.

Mr. BORSKI. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.

Mr. SHUSTER. Mr. Speaker, in closing, I yield myself such time as I may consume.

Mr. Speaker, I wanted to emphasize as strongly as I know how that this bill is on the floor today not because the Republican majority wants to stuff it down the minority's throats. Quite the contrary, this bill is on the floor today because our Democrat colleagues are the ones who have provided the leadership to get this moving.

Indeed, as we mentioned at the start of this debate, it has been the gentleman from California [Mr. Condit], the gentleman from California

[Mr. Matsui], and the gentleman from California [Mr. Fazio], who have provided the leadership and the driving force behind this legislation. That is why this is here today, and the majority is happy to have been accommodating to our friends in the minority. That is why this legislation is here today. It is bipartisan in nature, with nine original cosponsors, five Republicans, four Democrats.

With regard to the substance of the legislation and some of the objections which have been expressed, first, to say that this should be limited to only a part of the West does not solve the real problem. Farmers in Arkansas, Florida, Louisiana, Mississippi, Missouri, and Texas are all affected. So we need to address those regions of the country as well. This legislation does that.

Further, to say, as the President has indicated, that this should apply only to agricultural conveyances, does not solve the real problem. It only solves a part of the problem. What do we say to the city of Phoenix and other cities who have concrete-lined culverts? Do we tell them they have to treat that water like it was a pristine stream, even though it is going to cost, in the case of Phoenix, $66 million and provide absolutely no additional environmental benefit? No, I think that is not wise.

So this legislation does go beyond agricultural conveyances, and indeed does address the real problems that many of the cities, particularly in the West, face.

Finally, let me emphasize that in this legislation, it is very, very clear, States may use more stringent environmental requirements if they choose to. So once again, some of the objections we hear really stem from a ``Washington knows best'' attitude. The States may impose much more stringent requirements. We trust the States. We have confidence in the States. So let us not fall back into the old trap of saying ``Washington knows best.'' Let us give flexibility to the States. Let us pass this bipartisan legislation overwhelmingly. I urge adoption of the bill before us.

Mr. MATSUI. Mr. Speaker, I am pleased to rise in strong support of H.R. 2567, the Constructed Water Conveyances Reform Act of 1995. I want to thank Representative Condit for his efforts to address this important issue.

California farmers have been very active in developing innovative strategies for reducing the discharge of pollutants into our natural waterways. Producers in the Sacramento Valley have used closed drainage systems that hold water until its pesticides degrade, making it safe for release. Such efforts have yielded extremely impressive results. However, the possibility that these closed drainage systems could be required to meet water quality standards similar to those for natural waterways has created a great deal or uncertainty for users of these pollution control methods.

H.R. 2567 would provide the certainty needed to ensure that these innovative efforts to improve water quality can continue to go forward. At the same time, its provisions will ensure that there is no change in the regulation of the impact of constructed water conveyances on natural waterways. In the Sacramento area, we already face significant challenges in protecting and improving the quality of our waterways. We must not make this task more difficult.

I am aware that the administration has expressed concern about certain aspects of this legislation. I am pleased, however, that they are committed to addressing the concerns of California agriculture on this matter, and I am ready to work with them to achieve resolution.

I urge my colleagues support for this issue of great importance to California's agricultural economy.

Mr. SHUSTER. Mr. Speaker, I yield back the balance of my time.

The SPEAKER pro tempore (Mr. White). Pursuant to the rule, the previous question is ordered.

The question is on the committee amendment in the nature of a substitute.

The committee amendment in the nature of a substitute was agreed to.

The SPEAKER pro tempore. The question is on the engrossment and third reading of the bill.

The bill was ordered to be engrossed and read a third time, and was read the third time.

The SPEAKER pro tempore. The question is on the passage of the bill.

The question was taken; and (three-fifths having voted in favor thereof) the bill was passed.

A motion to reconsider was laid on the table.

____________________

SOURCE: Congressional Record Vol. 142, No. 8

“CONSTRUCTED WATER CONVEYANCES REFORM ACT OF 1995” published by the Congressional Record on Jan. 23, 1996

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