[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
CREATING ABUNDANT WATER AND POWER SUPPLIES AND JOB GROWTH BY RESTORING 
                  COMMON SENSE TO FEDERAL REGULATIONS

=======================================================================




                           OVERSIGHT HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                         Tuesday, April 5, 2011

                               __________

                           Serial No. 112-19

                               __________

       Printed for the use of the Committee on Natural Resources



         Available via the World Wide Web: http://www.fdsys.gov
                                   or
          Committee address: http://naturalresources.house.gov




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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
             EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Scott R. Tipton, CO                  Betty Sutton, OH
Paul A. Gosar, AZ                    Niki Tsongas, MA
Raul R. Labrador, ID                 Pedro R. Pierluisi, PR
Kristi L. Noem, SD                   John Garamendi, CA
Steve Southerland II, FL             Colleen W. Hanabusa, HI
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann, 
    TN
Jon Runyan, NJ
Bill Johnson, OH

                       Todd Young, Chief of Staff
                      Lisa Pittman, Chief Counsel
                Jeffrey Duncan, Democrat Staff Director
                 David Watkins, Democrat Chief Counsel
                                 ------                                

                    SUBCOMMITTEE ON WATER AND POWER

                      TOM McCLINTOCK, CA, Chairman
            GRACE F. NAPOLITANO, CA, Ranking Democrat Member

Louie Gohmert, TX                    Raul M. Grijalva, AZ
Jeff Denham, CA                      Jim Costa, CA
Scott R. Tipton, CO                  Ben Ray Lujan, NM
Paul A. Gosar, AZ                    John Garamendi, CA
Raul R. Labrador, ID                 Edward J. Markey, MA, ex officio
Kristi L. Noem, SD
Doc Hastings, WA, ex officio

                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, April 5, 2011...........................     1

Statement of Members:
    Garamendi, Hon. John, a Representative in Congress from the 
      State of California........................................     6
    Labrador, Hon. Raul R., a Representative in Congress from the 
      State of Idaho.............................................     5
        Prepared statement of....................................     6
    McClintock, Hon. Tom, a Representative in Congress from the 
      State of California........................................     1
        Prepared statement of....................................     3
    Napolitano, Hon. Grace F., a Representative in Congress from 
      the State of California....................................     3
        Prepared statement of....................................     5

Statement of Witnesses:
    Keppen, Dan, Executive Director, Family Farm Alliance, 
      Klamath Falls, Oregon......................................     7
        Prepared statement of....................................     9
    Noble, Wade, President, National Water Resources Association, 
      Yuma, Arizona..............................................    16
        Prepared statement of....................................    17
    Orme, Paul, General Counsel, Central Arizona, New Magma, and 
      Maricopa-Stanfield Irrigation and Drainage Districts, 
      Mayer, Arizona.............................................    30
        Prepared statement of....................................    32
    Pool, Richard, President, Pro-Troll Fishing Products, 
      Concord, California........................................    25
        Prepared statement of....................................    26
    Scholl, Jon, President, American Farmland Trust, Washington, 
      D.C........................................................    19
        Prepared statement of....................................    21
    Semanko, Norman M., Executive Director and General Counsel, 
      Idaho Water Users Association, Inc., Boise, Idaho..........    34
        Prepared statement of....................................    36

Additional materials supplied:
    Headrick, Doug, General Manager, San Bernardino Valley 
      Municipal Water District, on behalf of the Santa Ana Sucker 
      Task Force, Statement submitted for the record.............    62
    Modeer, David, General Manager, Central Arizona Project, 
      Statement submitted for the record.........................    65
    Rushin, Carol, Deputy Regional Administrator, U.S. 
      Environmental Protection Agency, Letter submitted for the 
      record by The Honorable Grace Napolitano...................    44
                                     



 OVERSIGHT HEARING ON ``CREATING ABUNDANT WATER AND POWER SUPPLIES AND 
     JOB GROWTH BY RESTORING COMMON SENSE TO FEDERAL REGULATIONS.''

                              ----------                              


                         Tuesday, April 5, 2011

                     U.S. House of Representatives

                    Subcommittee on Water and Power

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 2:21 p.m. in 
Room 1324, Longworth House Office Building, Hon. Tom McClintock 
[Chairman of the Subcommittee] presiding.
    Present: Representatives McClintock, Tipton, Gosar, 
Labrador, Napolitano, Grijalva, Costa, and Garamendi.
    Mr. McClintock. The Subcommittee on Water and Power will 
come to order. The Chair notes the presence of a quorum, which 
under Committee Rule 3(e) is two Members.
    The Water and Power Subcommittee meets today to hear 
testimony on a hearing entitled, ``Creating Abundant Water and 
Power Supplies and Job Growth by Restoring Common Sense to 
Federal Regulations.''
    We will begin with five-minute opening statements, starting 
with the Chair and Ranking Member. This hearing is being 
conducted pursuant to House Resolution 72, which directs all 
Committees of the House to identify current and pending 
regulations that threaten existing jobs, or impede the creation 
of new ones.
    This Subcommittee, with jurisdiction over water and 
hydroelectric resources administered by the Bureau of 
Reclamation, is going to have its hands full in meeting this 
obligation.

   STATEMENT OF THE HON. TOM McCLINTOCK A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. McClintock. In Southern Oregon, regulators have 
devastated Klamath Valley agriculture, and now threaten to 
squander $700 million of ratepayer and taxpayer funds to 
destroy four hydroelectric dams that are capable of producing 
155 megawatts of clean and cheap electricity, and to shut down 
operation of the Iron Gate Fish Hatchery that produces 5 
million salmon smolt each year.
    Last year, this government diverted 200 billion gallons of 
water away from Central Valley farms in California to dump into 
the Pacific Ocean for habitat restoration, destroying a 
quarter-million acres of the most productive farmland in the 
Nation, throwing tens of thousands of farm families into 
unemployment and contributing to unemployment rates in the 
Central Valley exceeding 40 percent in some communities.
    Even today, with the snowpack at 165 percent of normal for 
the season--the wettest year in the last 16--San Joaquin Valley 
farmers have only been guaranteed 65 percent of their 
contracted allotments.
    Family farms on the Rio Grande in New Mexico faced 
extinction to provide nicer accommodations for silvery minnows 
until its Delegation found the political will to act a few 
years ago.
    Just over the horizon, the Santa Ana suckerfish in Southern 
California could have devastating impacts on residents seeking 
to protect local water supplies. Across the Nation, the EPA has 
waged an assault on rural America by imposing greenhouse gas 
regulations that will destroy small livestock operations, 
creating unjustified buffer zones on pesticide applications, 
and opposing surface storage projects like the Two Forks 
Reservoir in Colorado.
    The great irony, of course, is that the very projects that 
have made sustained year-around water flows possible, and that 
have lowered water temperatures to the benefit of fish 
populations annually are precisely those under attack by the 
radical policies of the environmental left.
    Not only have these water projects stabilized water flows 
and lowered water temperatures, the employment of ample fish 
hatcheries can provide for unparalleled abundance of salmon and 
other species.
    Yet, the Federal Government refuses to recognize fish-
hatchery salmon as part of endangered fish counts and refuses 
to recognize the contributions that fish hatcheries can make to 
thriving fisheries.
    For many years, the central objective of our water and 
power policy was to create abundance, to make the desert bloom 
as the Bureau of Reclamation's founders put it. But this 
original mission seems to have been lost to a radical and 
retrograde ideology that seeks to create, maintain, and ration 
government-induced shortages. That is the policy crossroads 
where we have now arrived.
    It is true that with enough government force, fines, 
lawsuits, edicts, regulations, and bureaucracies, we can 
restore plant and animal populations to their original 
prehistoric conditions, but we have to do that by restoring the 
human population to its original prehistoric conditions.
    Or we can return abundance as the central objective of our 
water and power policy by providing abundant water, clean, and 
cheap hydroelectricity, new recreational centers, desperately 
needed flood protection, burgeoning fisheries, reinvigorated 
farms--not to mention lower electricity, water, and flood 
insurance bills for American families.
    It is toward that brighter and more prosperous future that 
this majority seeks to proceed. It is my hope that the 
testimony today will assist the House in identifying those 
changes in law that will be necessary to get there.
    With that, I will yield back the balance of my time, and 
recognize the Ranking Member, the gentlelady from California, 
Mrs. Napolitano.
    [The prepared statement of Chairman McClintock follows:]

         Statement of The Honorable Tom McClintock, Chairman, 
                    Subcommittee on Water and Power

    Today's hearing is conducted pursuant to House Resolution 72 which 
directs all committees of the House to identify current and pending 
regulations that threaten existing jobs or impede the creation of new 
ones.
    This sub-committee, with jurisdiction over water and hydro-electric 
resources administered by the Bureau of Reclamation, will have its 
hands full in meeting this obligation.
    In Southern Oregon, regulators have devastated Klamath Valley 
agriculture and now threaten to squander $700 million of ratepayer and 
taxpayer funds to destroy four hydroelectric dams capable of producing 
155 megawatts of clean and cheap electricity--and to shut down 
operation of the Iron Gate Fish Hatchery that produces five million 
salmon smolt annually.
    Last year, this government diverted 200 billion gallons of water 
away from Central Valley farms in California to dump into the Pacific 
Ocean for ``habitat restoration,'' destroying a quarter million acres 
of the most productive farmland in the nation, throwing tens of 
thousands of farm families into unemployment and contributing to 
unemployment rates in the Central Valley exceeding 40 percent in some 
communities.
    Even today, with snowpack at 165 percent of normal for the season--
the wettest year in the last 16--San Joaquin Valley farmers have only 
been guaranteed 65 percent of their contracted allotments.
    Family farms on the Rio Grande in New Mexico faced extinction to 
provide nicer accommodations for silvery minnows until its delegation 
found the political will to act a few years ago. Just over the horizon, 
the Santa Ana sucker fish in southern California could have devastating 
impacts on residents seeking to protect local water supplies.
    Across the nation, the EPA has waged an assault on rural America by 
imposing greenhouse gas regulations that will destroy small livestock 
operations, creating unjustified buffer zones on pesticide applications 
and opposing surface storage projects like the Two Forks reservoir in 
Colorado.
    The great irony, of course, is that the very projects that have 
made sustained year-round water flows possible and that have lowered 
water temperatures to the benefit of fish populations annually are 
precisely those under attack by the radical policies of the 
environmental left.
    Not only have these water projects stabilized water flows and 
lowered water temperatures, the employment of ample fish hatcheries can 
provide for unparalleled abundance of salmon and other species. Yet the 
federal government-refuses to recognize fish-hatchery salmon as part of 
endangered fish counts and refuses to recognize the contribution that 
hatcheries can make to thriving fisheries
    For many years, the central objective of our water and power policy 
was to create abundance--to make the desert bloom as the Bureau of 
Reclamation's Founders put it.
    But this original mission seems to have been lost to a radical and 
retrograde ideology that seeks to create, maintain and ration 
government-induced shortages. And that is the policy cross-road where 
we have now arrived.
    It is true that with enough government force, fines, lawsuits, 
edicts, regulations and bureaucracies we can restore plant and animal 
populations to their original prehistoric conditions by restoring the 
human population to its original pre-historic conditions.
    Or we can return abundance as the central objective of our water 
and power policy--by provide abundant water, clean and cheap 
hydroelectricity, new recreational centers, desperately needed flood 
protection, burgeoning fisheries, re-invigorated farms--not to mention 
lower electricity, water and flood insurance bills for American 
families.
    It is toward that brighter and more prosperous future that this 
majority seeks to proceed. It is my hope that the testimony today will 
assist the House in identifying those changes in law necessary to get 
there.
                                 ______
                                 

  STATEMENT OF THE HON. GRACE NAPOLITANO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mrs. Napolitano. Thank you, Mr. Chair, for today's hearing 
that does focus on indirect and direct regulations that affect 
the Bureau of Reclamation, and also specifically focused on the 
impacts of regulations to the agricultural community, and to 
our economy as such.
    I hope that we don't forget that Native American water 
rights are also impacted, and that we do include them in any of 
the discussions that we might continue to have. We do agree 
that we need to find a balance to ensure that regulations 
protect the health and safety of the public, and help sustain 
businesses and our economy--while protecting the environment 
and allowing for that job growth.
    This is one of the goals outlined in President Obama's 
Executive Order, and we support the Administration's efforts 
for regulatory review and job creation going hand-in-hand.
    Regulations protect the public and, when done right, help 
to provide a framework for partnership and collaboration, which 
is sometimes much needed. I have always maintained that, in 
some of these water wars, the only ones that win are the 
attorneys.
    Across the West, there are many instances of stakeholders 
partnering together to achieve the goals of sustaining 
agriculture, as well as improving our environment.
    These partnerships were not done at the expense of one 
party or the environment, but were done in a collaborative 
manner that allowed for water deliveries and power production, 
while minimizing and mitigating the risk to the environment.
    Regulations should not be done one-sided. We should not 
have to choose between the farmer who provides our food and the 
salmon fishermen who also makes a living depending on the same 
water resources, and economic sustainability in that area.
    It has also been mentioned that some of these regulations 
are decades old, and we agree that many of them have to be 
thrown out, amended, or replaced with something that reflects 
our current times.
    Some regulations do need some reviewing, and we support the 
efforts. We should also work with some of the other Federal 
agencies which overlap in some of our jurisdictions to address 
these issues collaboratively.
    What has not changed is how we as a country put in place 
these regulations, because we value our clean air, and we value 
our clean water, and we value our public safety, especially in 
our agricultural community and in our fishing industry.
    We have an even more important task of leaving the next 
generation with cleaner air, cleaner water, and a healthier 
environment than what we found during our time, and to do so in 
a way that allows for job growth--creating a win-win for all.
    Mr. Chairman, I have a great grandson, and another one on 
the way. I want to be sure that we leave something for our 
future generations that is going to make them proud of the work 
that was done, not that they will know about it, but that they 
enjoy better air, a better environment, than we had in our 
generation.
    And I can tell you when I moved to Southern California back 
in the early '60s that the pollution in the air was intolerable 
in California. Well, we have worked on that, and we have 
established a lot of new regulations, and now California does 
not have the cleanest air, but certainly is one of the best 
environments in the Nation.
    So I understand the need for regulations. I applaud it, but 
we also must understand how it impacts anything else that we 
work with, and work to sustain not only our economy, but ensure 
that we protect the future of our environment.
    I do look forward to hearing from our witnesses, and thank 
you for being here today. I yield back.
    [The prepared statement of Mrs. Napolitano follows:]

   Statement of The Honorable Grace F. Napolitano, a Representative 
                in Congress from the State of California

    Good morning. This hearing focuses on the indirect and direct 
regulations that affect the Bureau of Reclamation. This hearing also 
specially focuses on the impacts of regulations to the agricultural 
community.
    We agree that we need to find a balance to ensure that regulations 
protect the safety and health of the public and the environment while 
allowing for job growth. This is one of the goals outlined in President 
Obama's Executive Order and we support the Administration's ongoing 
efforts on regulatory review and job creation.
    Regulations, when done right, help to provide a framework for 
partnership and collaboration. There are many instances across the west 
of stakeholders partnering together to achieve the goals of sustaining 
agriculture as well as improving our environment.
    These partnerships were done not at the expense of one party or the 
environment, but in a collaborative manner that allows for water 
deliveries and power production, while minimizing and mitigating the 
risks to the environment. Regulations should also not be a one sided 
game where have to choose between the farmer who provides our food, and 
the salmon fisherman who also makes his living depending on the same 
water resource.
    It has been mentioned that some of these regulations are decades 
old, reflecting a different time. These regulations may need some 
reviewing, and we support those efforts. What has not changed is how we 
as a country put in place these regulations because we value our clean 
air, clean water and our public's safety.
    We have an even more important task of leaving the next generation 
with cleaner air, cleaner water, and a healthier environment than what 
we found, and do so in a way that allows for job growth.
    We look forward to hearing from our witnesses, thank you for being 
here today.
                                 ______
                                 
    [NOTE: Charts submitted for the record entitled ``California 2006 
Causes of Impairment for California Waters, Prepared by the U.S. EPA 
Office of Water'' and ``California Waters Impaired by Pesticides: 
Reporting Year 2006, Prepared by the U.S. EPA Office of Water'' have 
been retained in the Committee's official files.]
                                 ______
                                 
    Mr. McClintock. Thank you. The Chair recognizes Mr. 
Labrador for an opening statement.

   STATEMENT OF THE HON. RAUL LABRADOR, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IDAHO

    Mr. Labrador. Thank you, Mr. Chair. I will be very brief. 
Good afternoon, and thank you, Chairman McClintock, and Ranking 
Member Napolitano, for convening this important hearing today.
    I would like to especially welcome Norm Semanko, who is the 
Executive Director and General Counsel for the Idaho Water 
Users Association, for testifying at this hearing, and also a 
dear friend.
    Today's topic is a high priority of mine, reducing the 
burdensome regulations that the Federal Government has imposed 
as critical to the vitality of our Nation. The EPA continues to 
reach beyond their statutory authority to impose regulations 
that affect not only the people of Idaho, but also people 
nationwide.
    I would like to thank my colleagues for their support in 
passing H.R. 872, the Reducing Regulatory Burdens Act of 2011, 
which is extremely important to the producers in my State. I 
look forward to listening to the input our distinguished panel 
has to offer. Thank you.
    Mr. McClintock. Are there any other Members that wish to 
make an opening statement? Mr. Garamendi, five minutes.
    [The prepared statement of Mr. Labrador follows:]

      Statement of The Honorable Raul Labrador, a Representative 
                  in Congress from the State of Idaho

    Good afternoon and thank you, Chairman McClintock and Ranking 
Member Napolitano, for convening this important hearing today.
    I would also like to welcome Norm Semanko, the Executive Director 
and General Counsel for the Idaho Water Users Association for 
testifying at this hearing.
    Today's topic is a high priority of mine. Reducing the burdensome 
regulations that the federal government has imposed is critical to the 
vitality of our nation. The EPA continues to reach beyond their 
statutory authority to impose regulations that affect not only the 
people of Idaho but also people nationwide.
    I would like to thank my colleagues for their support in passing 
H.R. 872, the Reducing Regulatory Burdens Act of 2011, which is 
extremely important to the producers in my state.
    I look forward to listening to the input our distinguished panel 
has to offer.
    Thank you.
                                 ______
                                 

   STATEMENT OF THE HON. JOHN GARAMENDI, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Garamendi. Thank you, Mr. Chairman, and Ranking Member 
Napolitano, and the witnesses. I look forward to your 
testimony. We have been at this a long time, and the notion 
that regulations are bad, you may want to talk to the Japanese 
about the lack of regulations on their nuclear power 
facilities.
    Regulations are a mechanism that we use to provide a 
balance and an assurance that what we would like to see happen 
actually happens. Regulations to protect endangered species 
have had an incredibly positive impact on species, including 
the human species.
    When the very first regulation dealt with DDT, it was not 
just the raptors that were at risk. It was the human population 
that was at risk. So we ought to not throw the regulatory 
regimes out simply because they are called regulations.
    I have spent a good portion of my life in the regulatory 
environment as an insurance commissioner, and I can tell you 
without it, without any qualms whatsoever, that it is the 
regulatory environment in that sector that protects human 
beings from the rapacious nature of the insurance industry.
    The insurance industry does not like it, but then the 
public does not like to be ripped off either. With regard to 
endangered species, to substitute the natural environment for 
really an unnatural environment called fish hatcheries. Yes, we 
do need fish hatcheries but, at the same time, those fish 
hatcheries don't work if the water in the river is too warm for 
the fingerlings that leave the hatchery.
    And that is a regulatory environment that provides that 
opportunity for those fish to survive as they head down the 
river. So abundance, yes, but abundance only for the purpose of 
abundance will lead to destruction, and we have seen a lot of 
that.
    So we need to be balanced, and we need to be wise, and we 
need to recognize that the political rhetoric of anti-
regulation does not really solve the underlying problems. So 
with that, I look forward to hearing from the witnesses.
    Mr. McClintock. Any further opening statements? Seeing 
none, the Chair would like to begin by recognizing members of 
the National Water Resources Association, who have taken time 
out of their visit to the Capitol to attend today's hearing. 
Welcome to you all.
    And with that, we will begin with the statements of our 
witnesses. And there is some additional seating over on the 
other side if you get tired of standing.
    Our panel of witnesses today includes Mr. Dan Keppen, who 
is the Executive Director of the Family Farm Alliance, of 
Klamath Falls, Oregon; Mr. Wade Noble, President of the 
National Water Resources Association, in Yuma, Arizona; Mr. Jon 
Scholl, President of the American Farmland Trust, in 
Washington, D.C.; Mr. Richard Pool, President of Pro-Troll 
Products, in Concord, California; Mr. Paul Orme, representing 
the Central Arizona, New Magma, and Maricopa-Stanfield 
Irrigation and Drainage Districts of Mayer, Arizona; and Mr. 
Norm Semanko, Executive Director and General Counsel of the 
Idaho Water Users Association, in Boise, Idaho.
    Gentlemen, your written testimony will appear in full in 
the hearing record, and so I would ask you to keep your oral 
statements to five minutes, as outlined in our invitation 
letter to you, and under Rule 4(a).
    I also want to explain how our timing lights work. When you 
begin to speak, our clerk will start the timer, and a green 
light will appear on that device in front of you. After four 
minutes, a yellow light will appear, and at that time, you 
should begin to conclude your statement, and at five minutes a 
red light will come on. Please feel free to complete your 
sentence, but after that, I would ask you to wrap up. So I will 
now introduce Mr. Keppen for five minutes.

         STATEMENT OF DAN KEPPEN, EXECUTIVE DIRECTOR, 
          FAMILY FARM ALLIANCE, KLAMATH FALLS, OREGON

    Mr. Keppen. Good afternoon, Chairman McClintock, Ranking 
Member Napolitano, and Members of the Subcommittee. I am Dan 
Keppen, and I am the Executive Director for the Family Farm 
Alliance. We are a grassroots organization that represents 
family farmers, ranchers, irrigation districts, and allied 
industries in the 17 Western States.
    Last February, we had our annual meeting in Las Vegas, and 
staff members from this very Subcommittee participated in a 
video conference, where they were able to interact with our 
members.
    At that time, one of our board members, Mark Ricks, from 
Idaho, stood up and made a really impassioned speech, which I 
won't be able to replicate, but I did take notes, and I would 
like to share what he said at that time.
    Quote, ``When I talk to my sons and their friends, and 
start conversations, they often talk about the frustration they 
feel over the amount of time they spend dealing with 
regulations and bureaucracy.''
    Right now, my kids are spending roughly a third of their 
time trying to cut through what they see as unnecessary red 
tape. This is time that they know could be spent in a more 
productive way actually working the land, and starting to take 
the joy out of their work. It is making young people choose 
careers other than farming at a time when there are not many 
young farmer people in the profession.
    Mark Ricks is right and the statistics bear out his 
observations. Right now only six percent of our farmers in this 
country are younger than 35 years old. In my home state of 
Oregon, only four percent are 35 years or younger. So this 
oversight hearing comes at a real opportune time. We are in 
danger of losing a generation of farmers.
    And this is happening at a time when the United Nations 
projects that the world will need 70 percent more food by the 
year 2050 to keep pace with the world population growth and 
hunger.
    Today, our own western farmers and ranchers are being 
subjected to potential restrictive and duplicative Federal 
regulations on many fronts. Many of these rules have cropped up 
in just the past two years.
    My written testimony includes a nearly two page list of 
various rulemaking processes that pose threats to agriculture. 
Other witnesses on today's panel will further elaborate on some 
of those very issues.
    The related uncertainty that comes with all this increased 
regulatory scrutiny will make it much harder for these farmers 
to survive in such a harsh economy. Putting just a few of these 
farmers out of work could impart huge limitations on our future 
ability to feed our country and the world.
    The rural west faces challenges today that demand strong 
citizen engagement and aggressive outspoken leadership by our 
elected officials. As western producers of food and fiber 
continue to disappear, the ripple effect will extend far beyond 
the rural communities.
    As a country, we have become nearly complacent as food 
production has been taken for granted for far too long. The 
United States, for nearly four decades, helped defeat world 
hunger through its massive productive output of affordable 
food.
    Western family farmers and ranchers will continue to this 
campaign, but they need to be shown through leadership and 
development of common sense agriculture and water policy 
priorities that what they do really does matter to this 
country.
    Fortunately, policy leaders like you are beginning to 
recognize the economic and social burdens caused by the layers 
of regulations and bureaucracy. We were pleased to see 
President Obama issue his Executive Order that requires Federal 
agencies to ensure that regulations protect safety, health, and 
the environment, while promoting economic growth.
    The President's actions could provide an opportunity for a 
bipartisan marriage of interest leading to a real beneficial 
change in the way that the Federal Government adopts and 
implements rules and regulations that impact people's lives and 
livelihoods.
    The Family Farm Alliance strongly affirms the original 
goals of well intended laws like the Endangered Species Act, 
the Clean Water Act, and the National Environmental Policy Act.
    However, some of these laws are nearly 40 years old, and 
some targeted reforms may be needed, including common sense 
changes to make them work better, minimize confusion, and 
discourage unnecessary litigation.
    From the standpoint of the Western American farmer, it can 
be bewildering, daunting, and frustrating to view the specter 
of new rules, regulations, and guidance that are currently 
under development by Federal regulatory agencies.
    Unfortunately the very real impacts that existing laws and 
regulations already exert on agricultural producers have 
already been felt, and those rules do not appear to be going 
away anytime soon.
    I can see that it is simple enough to document these 
efforts to the best of our abilities and register our 
complaints as in our testimony. It is much more difficult to 
propose constructive resolutions that can make existing laws 
work better.
    The Family Farm Alliance prides itself on employing this 
very philosophy. We, and many other organizations representing 
American producers, have developed detailed recommendations 
over the past decade on how the negative effects of existing 
environmental regulations can be corrected and improved.
    We would be happy to provide a compilation of those efforts 
and make them available to this Subcommittee. With the right 
combination of incentives in the form of modernized streamlined 
regulations, western irrigated agriculture will be posed to 
help close the global productivity gap, and meet the world's 
food and fiber needs in the year 2050 and beyond. Thank you.
    [The prepared statement of Mr. Keppen follows:]

   Statement of Dan Keppen, Executive Director, Family Farm Alliance

    Good afternoon, Chairman McClintock, Ranking Member Napolitano, and 
Members of the Subcommittee. My name is Dan Keppen, and I serve as the 
Executive Director of the Family Farm Alliance (Alliance).
    The Alliance is a grassroots organization of family farmers, 
ranchers, irrigation districts and allied industries in 16 Western 
states. The Alliance is focused on one mission: To ensure the 
availability of reliable, affordable irrigation water supplies to 
Western farmers and ranchers. We are also committed to the fundamental 
proposition that Western irrigated agriculture must be preserved and 
protected for a host of economic, sociological, environmental and 
national security reasons--many of which are often overlooked in the 
context of other national policy decisions.
    This oversight hearing could not have come at a more opportune 
time. We are in danger of losing a generation of young farmers, and 
productive farmlands and Western agriculture's traditional water 
supplies are disappearing as urban, environmental and energy demands 
increase. This is all happening at a time when the United Nations 
projects that the world will need to produce 70 percent more food by 
2050 to keep pace with world population growth and increased demand for 
calories.
    Today, our own Western farmers and ranchers are currently being 
subjected to potentially restrictive and duplicative federal 
regulations on everything from another added layer of water quality 
protections to air quality requirements that would significantly 
increase the cost of their water supplies. These farmers are facing 
potentially ruinous recommendations from a federally-sanctioned 
committee that could impose additional expensive but unfunded safety 
standards to their irrigation canals and ditches. The related 
uncertainty that comes with all of this increased regulatory scrutiny 
will make it much harder for these farmers to survive in such a harsh 
economy. Putting just a few of these farmers out of work could impart 
huge limitations on our future ability to feed our country and the 
world.
    I should emphasize that all these regulations in particular hit the 
small family farmer the hardest, as they are the least equipped to deal 
with the maze of sometimes overlapping requirements. We fear that we 
may be approaching a point where only the larger farm operators will be 
able to economically deal with these issues, and even they will face 
significant challenges and hardship.
    The rural West faces challenges today that demand strong citizen 
engagement and aggressive, outspoken leadership by our elected 
officials. As Western producers of food and fiber continue to 
disappear, the ripple effect will extend far beyond their rural 
communities. As a country, we have nearly become complacent as food 
production has been taken for granted for far too long. The United 
States for nearly four decades helped defeat world hunger through its 
massive productive output of affordable food. Western family farmers 
and ranchers will continue this campaign, but they need to be shown--
through leadership and development of common sense agriculture and 
water policy priorities--that what they do really does matter to this 
country.
    Fortunately, policy leaders like the Members of this Subcommittee 
are beginning to recognize the economic and social burdens caused by 
layers of regulations and bureaucracy. President Obama publicly noted 
in a recent Wall Street Journal Op Ed article that some federal 
regulations have gotten out of balance, placing unreasonable burdens on 
business--``burdens that have stifled innovation and have had a 
chilling effect on growth and jobs.'' We were pleased to see the 
president issue his Executive Order that requires federal agencies 
ensure that regulations protect safety, health and the environment 
while promoting economic growth. That order also directs a government-
wide review of the rules already on the books to remove outdated 
regulations that stifle job creation and make our economy less 
competitive. The President's actions, in our view, could provide an 
opportunity for a bipartisan marriage of interests leading to real 
beneficial change in the way the federal government adopts and 
implements rules and regulations that impact peoples' lives, and 
livelihoods. We will remain hopeful but vigilant, and watch what the 
regulatory agencies actually do on this front, instead of only what 
they say.
    While the Family Farm Alliance strongly affirms the original goals 
of well-intended laws like the Endangered Species Act (ESA), Clean 
Water Act (CWA) and National Environmental Policy Act (NEPA), some of 
these laws are nearly 40 years old, and some targeted reforms may be 
needed, including common-sense changes to make them work better, 
minimize confusion, and discourage unnecessary litigation. The Family 
Farm Alliance has a proven track record of providing solution-oriented 
recommendations along these lines. For example, we have previously 
testified before this subcommittee and provided recommendations for 
legislation that would require the establishment of quality standards 
for scientific and commercial data that are used to make decisions 
under the ESA and other important regulatory laws. We believe that 
greater weight should be given to data that have been field-tested or 
peer-reviewed. We support peer review of ESA listing decisions and ESA 
section 7 consultations by a disinterested scientific panel, and we 
believe legislation can be crafted to create procedures for that 
process.
IRRIGATED AGRICULTURE IS AN IMPORTANT COG IN OUR NATION'S ECONOMIC 
        ENGINE
    The development of Western water resources over the past one 
hundred years is one of the great success stories of the modern era. 
Millions of acres of arid Western desert have been transformed into one 
of the most efficient and productive agricultural systems in the world. 
The Bureau of Reclamation (Reclamation) is the largest supplier and 
manager of water in the 17 Western states west of the Mississippi. It 
maintains 480 dams and 348 reservoirs with the capacity to store 245 
million acre-feet of water. These facilities deliver water to one in 
every five western farmers to irrigate about ten million acres of land, 
and provide water to over 31 million people for municipal and 
industrial (M&I) uses as well as other non-agricultural uses. 
Reclamation is also the Nation's second largest producer of 
hydroelectric power, generating 44 billion kilowatt hours of energy 
each year from 58 power plants. In addition, Reclamation's facilities 
provide substantial flood control benefits, recreational opportunities, 
and extensive fish and wildlife habitat. All of this has been 
accomplished with a total federal investment of only $11 billion, 
according to the Bureau of Reclamation.
    In early 2010, Secretary of the Interior Ken Salazar released a 
first-of-its-kind report, Economic Impact of the Department of the 
Interior's Programs and Activities, as an analysis of the job creation 
and economic growth benefits associated with a wide range of 
Departmental activities, including those related to Reclamation's 
irrigation and hydroelectric projects in the West. The report estimates 
that Reclamation's total estimated economic impact in 2008 was $39.5 
billion, impacting an estimated 261,200 jobs. Of this total, 
Reclamation's irrigation activities generated an estimated 193,000 jobs 
and an economic impact of $25.3 billion, almost double the combined 
economic impacts ($14.2 billion, 68,200 jobs) associated with 
Reclamation's hydropower, municipal and industrial water, and 
recreation functions.
A LOST GENERATION OF FARMERS?
    One of the most troubling aspects of the on-going farm crisis is 
the decline in the number of young farmers entering the field. More 
than half of today's farmers are between the ages of 45 and 64, and 
only six percent of our farmers are younger than 35 (www.farmaid.org). 
Fewer than one million Americans list farming as their primary 
occupation and among those, 40 percent are age 55 or older. In my home 
state of Oregon, according to a State Board of Agriculture report 
released earlier this year only 4 percent of farmers are between 25 and 
34 years old and 8 percent are between 35 and 44 years old, and 39 
percent are older than 65.
    Both statistically and anecdotally, for the first time in many 
generations we see sons and daughters of farmers opting to leave the 
family farm because of uncertainty about agriculture as a career.
    Meanwhile, Western irrigators continue to grow more food and fiber 
using less water and land. For example, the California Farm Bureau 
Federation reports that, between 1980 and 2000, water use and irrigated 
acreage in California decreased, yet crop production still rose 35 
percent. And, according to USDA's Economic Research Service statistics, 
Americans are spending, on average, 9.7 percent of their disposable 
income on food. To put this into perspective, consider what citizens 
living in other countries pay. For example, in Brazil, 22.7% of annual 
household expenditures go for food, and in some underdeveloped 
countries these levels have reached 75%. Consider the following:
[GRAPHIC] [TIFF OMITTED] 65599.014


    .epsAt a time when average Americans are feeling the pinch of the 
economic recession in their pocket books, the foundation of our 
country's ability to provide safe and affordable food and fiber is also 
now at risk. Ironically, it is because Western irrigated agriculture 
has been so adaptive and successful at providing plentiful, safe and 
affordable food that it is now in a fight for its future existence--and 
nobody believes there is a problem. The last Americans to experience 
food shortages are members of the Greatest Generation and their 
parents. For the most part, they have left us, taking with them the 
memories of empty supermarket shelves, WWII Victory Gardens, the Dust 
Bowl, and other times of significant hardship and shortage. Their 
personal experiences helped build today's American agricultural 
successes, but when the issue has never been personalized, it's easy to 
become complacent.
WESTERN FARMERS & RANCHERS ARE NEEDED TO FEED A HUNGRY WORLD--NOW MORE 
        THAN EVER BEFORE
    Earlier this year, the Global Harvest Initiative released its 
Global Agricultural Productivity (GAP) Report, which measures ongoing 
progress in achieving the goal of sustainably doubling agricultural 
output by 2050. For the first time, the GAP Report quantifies the 
difference between the current rate of agricultural productivity growth 
and the pace required to meet future world food needs. The report 
predicts that a doubling of agricultural output by 2050 will be needed 
to meet future world requirements for food. This would require 
increasing the rate of productivity growth to at least 1.75 percent 
annually from the current 1.4 percent growth rate, a 25 percent annual 
increase in the productivity growth rate.
    Other signs point to the hard truth of a very real food crisis in 
the world today. The Food and Agriculture Organization of the United 
Nations (FAO) in June 2009 reported that over 1 billion people world-
wide go hungry every day. The world's population is growing by 79 
million people each year. The FAO estimates that the world needs to 
produce 70 percent more food by 2050 to keep pace with population 
growth and increased demand for calories.
    The G-8 agricultural ministers committed at a summit last year to 
increase international assistance for agricultural development to $20 
billion over the next three years. We believe a similar focus must be 
placed here in the United States closer to home, where less than two 
percent of the nation's population produces food for our country and 
the rest of the world.
    Agriculture Secretary Vilsack said at a recent hearing that one of 
his top priorities will be making sure farmers have access to capital 
and credit--and that there is a next generation of farmers. Yet we have 
not heard of any initiatives to reduce or eliminate redundant 
regulations impacting agriculture that add burdensome paperwork and 
additional restrictions on everything from critical irrigation water 
supplies to the use of necessary farm inputs, all of which impact all 
farmers, young and old, who want to stay in agriculture.
    Congress can help by closely examining how current and proposed 
rules and guidance regulating air and water quality protections are or 
are not working, identifying the economic impacts, costs and benefits 
associated with their implementation, and directing legislation that 
corrects deficiencies and streamlines and modernizes their on-the-
ground implementation. Farmers and ranchers are exposed to overlapping 
and inconsistent mandates from different regulatory agencies that 
continue to be piled on year after year. Harry Cline in 2008 addressed 
this point well in an article published in The Capital Press newspaper, 
underscoring the point that pressure is building on farmers to give up 
the lifestyle and preserve the remaining equity in their property for 
their families, or to do the unthinkable--move farming operations to 
other countries where labor is plentiful, environmental concerns 
relaxed and economic development is welcomed.
THE DISCONNECT BETWEEN ENVIRONMENTAL AND AGRICULTURAL POLICY
     The Family Farm Alliance has long worked on finding ways to 
streamline the regulatory process, and worked closely with past 
administrations and Congress towards that end. In the past two years, 
our members have become increasingly concerned about the number of 
environmental policies that are currently being re-written either as 
guidance or in the rulemaking process by this Administration.
    Currently, water and environmental policies seem to be considered 
separately from foreign and domestic agricultural goals and objectives. 
In the past year, federal agencies have steadily re-written numerous 
environmental policies that--if left unchecked--could carry the risk of 
real potential harm for Western agricultural producers. The list of new 
rulemaking and other potentially burdensome, duplicative, or even 
unattainable regulations and agency guidance that will impact the 
availability of Western water supplies continue to grow, and includes 
the following specific actions:
          Economic and Environmental Principles & Guidelines 
        for Water and Related Resources Studies. The White House 
        Council on Environmental Quality (CEQ) has drafted new 
        standards for federal water projects that for the first time 
        put environmental goals on the same plane as economic 
        development concerns. These proposed changes may have a 
        significant impact on new water project planning and federal 
        funding in the future;
          More stringent EPA pesticide restrictions, which 
        increases costs, liabilities, and risk of crop damage to 
        Western producers. Family Farm Alliance Advisory Committee 
        member Norm Semanko will testify to this in more detail at 
        today's hearing;
          USFWS consideration of wide-ranging policy revisions 
        to ESA administration that could lead to greater legal exposure 
        to water users with ties to federal projects;
          USFWS revisions to designations and critical habitat 
        associated with ESA-protected species, including Western bull 
        trout, the California red-legged frog, Greater Sage Grouse, and 
        Pacific smelt which could lead to even more restrictions on 
        western lands and water users, including family farmers and 
        ranchers;
          CEQ intent to ``modernize and reinvigorate'' the 
        National Environmental Policy Act (NEPA). Based on our review 
        of the guidance, it appears CEQ would place more emphasis on 
        monitoring and reporting requirements for NEPA activities 
        associated with categorical exclusions and the use of 
        ``frontloaded'' environmental mitigation where these exclusions 
        have traditionally been used. Western water managers often use 
        these legal NEPA mechanisms in conjunction with recurring 
        actions associated with annual operations and maintenance 
        activities on ditches or major rehabilitation and repair 
        projects on existing dams. If implemented as written, the CEQ 
        directives would definitely impact Western water users by 
        adding additional costs to formerly cost-effective NEPA 
        activities and analyses. Western irrigators and others in the 
        regulated community fear that the net result of these changes 
        will be more expense, delay and bureaucratic red tape in 
        pursuing federal actions as simple as the ongoing operation and 
        maintenance of existing water management facilities;
          EPA's Strategic Plan for 2011-2016, which strongly 
        indicates that EPA will place more emphasis on regulating 
        greenhouse gases, setting nutrient standards for water bodies, 
        environmental cleanup, chemical regulation, and enforcing 
        environmental laws through ``vigorous and targeted civil and 
        criminal enforcement'' actions;
          EPA emissions upgrades that may be mandated for the 
        Navajo Generating Station (NGS) in Arizona. The emission 
        requirements being considered by EPA are intended to satisfy 
        unique visibility criteria driven in part by the proximity of 
        NGS to Grand Canyon National Park, and they carry with them a 
        heavy cost to local farmers and ranchers. Family Farm Alliance 
        Advisory Committee member Paul Orme will testify to this matter 
        in greater detail at today's hearing;
          Recent guidance from EPA regional offices which 
        demonstrates a clear bias against the planning and construction 
        of any new water storage projects, which appears to prejudge 
        potential projects without consideration of important civic, 
        economic and environmental needs;
          The Obama administration reconsideration of a 2008 
        EPA rule recently upheld in the 11th Circuit Court of Appeals 
        that allows water transfers from one water body to another 
        without requiring a Clean Water Act (CWA) NPDES permit. This 
        new level of regulation, permitting and certain litigation 
        would hamstring the economies of states like Arizona, 
        California and Colorado, where millions of acre-feet of water 
        are transferred from one river basin to another every year;
          EPA's failure to establish clear procedures for its 
        pesticide effects determinations and subsequent actions in the 
        Pacific Northwest consistent with 1988 amendments to the 
        Endangered Species Act (ESA). This has resulted in unnecessary 
        restrictions on the use of agricultural pesticides without any 
        indication that Pacific Northwest salmon will benefit and puts 
        producers along the West coast at a competitive disadvantage;
          EPA has launched an effort to develop their ``Green 
        Book'', a project to ensure all EPA policies are driven by 
        ``sustainability''. EPA's current policies and regulations are 
        driven by statutes that oversee individual issues, such as 
        pesticides, air pollution and drinking water contaminants. But 
        this new project, undertaken at EPA's direction by the National 
        Academy of Science, will develop a framework for the EPA to 
        link all environmental issues and ensure its policies rely on 
        sustainable use of energy, water, land and other resources. 
        There is much speculation of the impacts to agriculture and 
        other resource-dependent industries arising from the outcome of 
        this effort.
          EPA late last year issued a memorandum that has the 
        effect of regulating air quality under the Clean Water Act 
        (CWA) based on the theory that air is tributary to waters of 
        the United States. The memorandum directs states to designate 
        waters bodies as impaired if they do not meet water quality 
        standards because of acidification caused by air pollution. In 
        other words, States or EPA could now regulate CO2 
        and other pollutant emissions under the CWA.
          In recent months, Western water managers have become 
        aware of and are becoming increasingly concerned with actions 
        undertaken by the National Committee on Levee Safety (NCLS). 
        This group, authorized and created in the Water Resources 
        Development Act of 2007, includes the U.S. Army Corps of 
        Engineers (Corps) and FEMA as the only federal agencies 
        represented on the Committee. The Committee was established to 
        deal with post-Katrina flood risk issues, with an emphasis on 
        Corps levees. However, the Committee has developed a plan that 
        essentially could apply Corps-level engineering specifications 
        and standards to both levees and water supply canal embankments 
        throughout the country, with little to no coordination with the 
        Bureau of Reclamation and Western water managers. The Committee 
        is now considering draft legislative language that could be 
        used to create a National Levee Safety Program to implement 
        this plan, and thus far, concerns raised by Reclamation and 
        Western irrigation interests do not appear to be gaining 
        traction with the Corps and FEMA. We believe Congress did not 
        intend for water delivery canals that are not part of a flood 
        control system to be subjected to new requirements administered 
        by the Army Corps of Engineers. Wade Noble, President of the 
        National Water Resources Association and a member of the Family 
        Farm Alliance Advisory Committee, will focus solely on this 
        troubling development in his testimony today.
    The above federal water resources policy actions and regulatory 
practices could potentially undermine the economic foundations of rural 
communities in the arid West by making farming and ranching 
increasingly difficult and costly. American family farmers and ranchers 
for generations have grown food and fiber for the world, and we will 
have to muster even more innovation and resolve to meet this critical 
challenge. That innovation must be encouraged rather than stifled with 
new federal regulations and uncertainty over water supplies for 
irrigated farms and ranches in the rural West.
    The Family Farm Alliance hopes that the Administration will give 
significant consideration to the concerns of agricultural 
organizations. We pledge to work with the Administration, Congress, and 
other interested parties to build a consensus for improving the 
regulatory processes associated with improving water management, water 
quality, and our environment. At a minimum, federal policies on these 
and various other water-related issues (Clean Water Act, aging water 
infrastructure, climate change, land-use, to name a few) should be 
informed and guided by the goals of preserving our domestic 
agricultural production capacity and the vitality of rural western 
communities.
ESA IMPLEMENTATION BY FEDERAL AGENCIES A MAJOR CONCERN
    A growing concern to Western irrigators is the employment of the 
ESA by the federal agencies as a means of protecting single species by 
focusing on one narrow stressor to fish: irrigation diversions. For the 
second time in a decade, Congress directed that the National Academy of 
Sciences (NAS) convene a high-level, independent scientific review of 
federal restrictions on water deliveries affecting thousands of Western 
farmers and ranchers. In 2009, those restrictions--based in large part 
on ESA biological opinions in the Sacramento-San Joaquin Delta 
(Delta)--were a primary cause for the water cutbacks and rationing 
afflicting hundreds of communities throughout California and the 
resulting economic devastation in the San Joaquin Valley. Last year, 
south-of-Delta water managers estimate that over 1 million acre-feet of 
water that would normally be diverted to supply San Joaquin Valley 
farms and Southern California communities were lost to the Pacific 
Ocean during a five-month period due to the requirements for Delta 
pumping restrictions of the biological opinions rendered by federal 
fisheries agencies to protect endangered fish species.
    A similar decision to focus exclusively on one stressor--a federal 
irrigation project--was made by federal agencies in the Klamath Basin 
in 2001, and that decision, and the science used by federal fish 
agencies to support the decision, was criticized later in a review 
conducted by the NAS.
    Unfortunately, agency biologists apparently continue to cling to 
their belief that the only ``switch'' that can be pulled to ``protect'' 
Klamath River fisheries is to reduce Klamath Project water supplies, 
because there is no other perceived immediate fix. True solutions to 
this complicated challenge cannot happen overnight, they are long-term 
in scope, and all stakeholders must be at the table to contribute to 
long-lasting success for all interests in this important watershed. We 
encourage federal agencies to work collaboratively with local interests 
to find realistic solutions that benefit fisheries in a way that avoids 
economic hardship to family farmers and ranchers in the Klamath Basin.
    The California and Klamath stories are very similar. The NAS 
stepped in after Klamath Irrigation Project supplies from Upper Klamath 
Lake were cut off by federal biological opinions under the ESA in 2001. 
The Academies' objective scientific review concluded that there was 
insufficient evidence to support these biological opinions in 
restricting agricultural diversions from the river, which had led to 
the near-collapse of the local agricultural community. In Klamath, the 
federal regulators looked at only one of the stressors contributing to 
the fisheries' decline and they focused on only one solution--cutting 
off water supplies to agriculture.
    Likewise, in California today, the same federal agencies have 
refused to assess the impacts of the many stressors affecting the 
health of the Delta. And for fifteen years, they have been restricting 
or cutting off water deliveries, even though their experience during 
those fifteen years have conclusively demonstrated that these 
restrictions have done little to prevent the fisheries' decline in the 
Delta.
    As in California, the effects of the Klamath restrictions were 
immediate and far-reaching- not just losses to the economy but also the 
wildlife benefits that were lost with the water diversions to farms and 
ranches (and a federal wildlife refuge). And yet, the federal 
regulators failed to perform any environmental impact analysis before 
they ordered cutbacks in California and Klamath.
    Last year, U.S. District Judge Oliver Wanger handed a victory to 
agricultural water users who were seeking to maintain pumping levels in 
the Sacramento-San Joaquin Delta. In separate decisions involving 
threatened delta smelt and endangered salmon, Judge Wanger found that 
the federal government must consider humans along with the fish in 
limiting use of the delta for irrigation. He also found that water 
users made convincing arguments that the federal government's science 
didn't prove that increased pumping from the delta imperiled the smelt.
    Among the reasoning for the ruling offered by the court:
          The federal agencies failed to undertake any 
        quantitative analysis to determine how many smelt there are;
          As a result, the agencies' claims with respect to the 
        detrimental impact of water pumping on the overall smelt 
        population were not supported;
          The agencies moreover failed to establish the 
        significance of pumping operations on smelt abundance in 
        relation to all of the other factors affecting the smelt; and
          The court further found that the federal agencies 
        failed to address alternative approaches to avoid jeopardy to 
        the smelt.
    Judge Wanger has directed the USFWS and the NMFS to revise the 
biological opinions for smelt and for salmon. He has found that the 
agencies have failed to meet the standards for scientific integrity 
that the ESA requires. And he has determined that both agencies 
violated the National Environmental Policy Act as well. As a result, in 
developing these new biological opinions, the government will finally 
be required to take into account the impact of these regulations on the 
human environment. And for the first time, they will be required to 
take public comment before imposing a new set of regulatory 
restrictions on the two water systems that serve two-thirds of 
California's population.
IMPEDIMENTS TO ON-FARM ENERGY OPPORTUNITIES
    Farmers and ranchers also face difficulties when they seek to 
develop new sources of clean, emission-free power using existing 
infrastructure. A 2010 USDA survey focusing on the 20,000 American 
farms using methane digesters, solar panels and wind turbines is part 
of a larger effort from the Obama administration to promote rural 
energy production. However, there are also tens of thousands of 
opportunities in the West to install low-head hydroelectric power 
facilities in existing irrigation canals. Many of our members operate 
existing irrigation canals and ditch systems that may provide 
opportunities to develop in-canal, low-head hydroelectric projects that 
have tremendous potential for producing significant amounts of 
renewable energy with virtually no negative environmental impacts. 
Historic irrigation structures can be retained while the system is 
updated with modern clean-energy producing technologies. Increased 
revenues from the sale of this renewable energy could result in lower 
irrigation costs to farmers. And, importantly, irrigation water 
delivery services can continue while utilizing flows for clean, 
emissions-free ``green'' energy production.
    Unfortunately, water users who seek to implement multiple low-head 
hydropower generation sites throughout their service area must undergo 
costly and time-consuming FERC licensing processes that sometimes 
impede their ability to implement these projects. Because there are 
virtually no environmental impacts associated with these easy-to build 
renewable projects, they should also be promoted and be accorded the 
same streamlined permitting as new solar and wind projects.
    The Alliance supports the ``Small-Scale Hydropower Enhancement Act 
of 2011''--co-sponsored by Congressmen Adrian Smith and Jim Costa--
which intends to exempt any conduit-type hydropower project generating 
less than 1.5 megawatts from FERC jurisdiction. This limited exemption 
would promote the development of small-scale hydropower while still 
protecting the environment. This would help stimulate the economy of 
rural America, empower local irrigation districts to generate revenue 
and decrease reliance on fossil fuels--all at no cost to taxpayers.
CONCLUSIONS AND RECOMMENDATIONS
    From the standpoint of the Western American farmer, it can be 
bewildering, daunting and frustrating to view the specter of new rules, 
regulations, and guidance that are currently under development by 
federal regulatory agencies. Unfortunately, the very real impacts that 
existing laws and regulations exert on agricultural producers have 
already been felt, and those rules do not appear to be going away any 
time soon. Admittedly, it is simple enough to document these efforts to 
the best of our abilities and register our complaints. While it is much 
more difficult to propose constructive solutions that can make existing 
laws work better, the Family Farm Alliance prides itself in employing 
this very philosophy. The Alliance and many other organizations 
representing American producers have developed detailed recommendations 
over the past decade on how the negative effects of existing 
environmental regulations can be corrected and improved. We would be 
happy to provide a compilation of those efforts and make them available 
to the subcommittee.
    Our farmers and ranchers are increasingly subjected to duplicative 
and expensive federal regulations and their related uncertainty of 
increased costs, lost critical farm inputs, and reduced water supplies, 
making it harder to survive in a harsh economy. And forcing farmers out 
of business and taking farmland out of production so that water 
supplies can be redirected to new environmental demands will impart 
huge limitations on our future ability to feed our country and the 
world.
    With the right combination of tools and incentives--the latter, in 
part, in the form of modernized, streamlined regulations--as well as 
both public and private sector investments in water management 
infrastructure for the future, Western irrigated agriculture will be 
poised to help close the global productivity gap and sustainably meet 
this Nation's and the world's food and fiber needs in 2050 and beyond.
    Thank you for this opportunity to present testimony to you.
                                 ______
                                 
    Mr. McClintock. Thank you very much. We welcome back Mr. 
Wade Noble to the Committee. He is the President of the 
National Water Resources Association in Yuma.

              STATEMENT OF WADE NOBLE, PRESIDENT, 
      NATIONAL WATER RESOURCES ASSOCIATION, YUMA, ARIZONA

    Mr. Noble. Thank you, Mr. Chairman, Ranking Member 
Napolitano, and Members of the Committee. I am Wade Noble, 
President of the National Water Resources Association. I want 
to state at the outset that the NWRA is not opposed to Federal 
regulations.
    However, we are opposed to duplicative regulations which 
serve no purposes and impose unnecessary paperwork, and 
unwarranted expense, on America's farmers and communities.
    In the wake of Hurricane Katrina, and the catastrophic 
levee failure in New Orleans' Ninth Ward, we clearly understand 
and support Congress' desire to ensure the safety of levees 
throughout the Nation.
    The establishment of the National Committee on Levee Safety 
to make recommendations to Congress to ensure the future of 
safety of levees contiguous with population centers is 
essential.
    However, we fear that the committee has taken on a life of 
its own, and the extension of its Congressional mandate to the 
United States Bureau of Reclamation's canals, is unsupportable.
    The recommendations contained in the report identified 
14,000 miles of core levees, and 8,000 miles of Reclamation's 
canals. Irrigation canals and flood protection levees are very 
different structures, and should not be regulated under a one 
size fits all regime.
    Therefore, we believe Congress should consider the 
following facts regarding the United States Bureau of 
Reclamation irrigation canals before embracing the Committee's 
recommendation.
    Reclamation inspects its facilities, including water 
delivery canals, on a regular basis. In addition, Subtitle G of 
Public Law 111-11, the Omnibus Public Land Management Act of 
2009, directed Reclamation to conduct inspections of their 
facilities in proximity to urbanized areas.
    Reclamation has completed inspections on urban canals in 
the Salt River project, Maricopa County, Arizona; the central 
Arizona project, Maricopa County, Arizona; and the Yuma County 
Water Users Association, Yuma County, Arizona.
    Reports on the inspections are being completed. The 
inspections were comprehensive and extensive. Of Reclamation's 
8,000 miles of canals, West-wide, only one in eight, 
approximately 1,000 miles, are in proximity to urbanized areas.
    Unlike levees, if a breach occurs, the water can be shut 
off in a short period of time, eliminating or greatly reducing 
the potential of property damage and making the risk of loss of 
life remote.
    Equating canals to levees will require canal operators and 
agriculture to pay the increased flood insurance premiums in 
areas potentially impacted by a canal failure. Such unnecessary 
additional costs will further compromise farmers' abilities to 
provide a reliable and secure food supply to this Nation's 
citizens.
    In summary, we believe that this Committee needs to assert 
its jurisdiction to ensure that future legislation resulting 
from the recommendations of the National Committee on Levee 
Safety does not adversely impact American agriculture.
    Thank you, Mr. Chairman, and Members of the Committee, for 
the opportunity to bring our concerns to your attention. The 
NWRA stands ready to assist the Committee in any manner that it 
deems appropriate.
    [The prepared statement of Mr. Noble follows:]

     Statement of Wade Noble, President, National Water Resources 
                              Association

    Good afternoon Chairman McClintock, Ranking Member Napolitano and 
Members of the Subcommittee, my name is Wade Noble and I am here on 
behalf of the National Water Resources Association (NWRA). I am the 
President of the Association and also an attorney in Yuma, Arizona.
    NWRA is a federation of state water associations representing 
agricultural and municipal water providers in the seventeen Western 
Reclamation states. Its strength is due to ``grassroots'' participation 
on virtually every national issue affecting western water and power 
resources conservation, management, and development.
    We appreciate the opportunity to comment on federal regulations 
impacts on water and power supplies. NWRA unequivocally supports common 
sense federal regulations. We are increasingly concerned about 
duplicative and unnecessary regulations, many of which may have 
negative consequences for western water users. Specifically, I will 
address the direct impacts the recommendations of the National 
Committee on Levee Safety will have on Bureau of Reclamation projects 
and irrigators west wide.
    Western water managers are progressively apprehensive with actions 
of the National Committee on Levee Safety (NCLS). The group, authorized 
in the Water Resources Development Act of 2007 (WRDA), includes the 
U.S. Army Corps of Engineers (Corps) and the Federal Emergency 
Management Agency (FEMA) as the only federal agencies. The Bureau of 
Reclamation, with thousands of miles of levees and canals, is not at 
the table.
    The Committee, established to deal with post-Katrina flood risk 
issues emphasizing Corps levees, plans to apply Corps-level engineering 
specifications and standards to levees and canals. There will be little 
or no coordination with the Bureau of Reclamation and Western water 
managers. Thus far, concerns raised by Reclamation and Western 
irrigation interests do not appear to be gaining traction with the 
Corps and FEMA.
    Congress created the NCLS to develop recommendations for a national 
levee safety program, including a strategic plan for implementation of 
the program. The NCLS began development of recommendations in October 
2008. The result so far is twenty recommendations for creating a 
National Levee Safety Program which were in a January 15, 2009 draft 
report, Recommendations for a National Levee Safety Program: A Report 
to Congress from the National Committee on Levee Safety.
    The recommendations for a National Levee Safety Program (NLSP) are 
grouped into three concepts: (1) the need for leadership via a National 
Levee Safety Commission which would--support state delegated programs, 
provide national technical standards and risk communication, and 
coordinate environmental and safety concerns; (2) the building of 
strong levee safety programs in all states which would--provide 
oversight, regulation, and critical levee safety processes; and (3) a 
foundation of well aligned federal agency programs.
    Federal legislation will be necessary to implement 12 of the 20 
recommendations. The Corps and FEMA are working within existing 
authorities and funding to implement several recommendations addressing 
the basics of communication and outreach, use of common language and 
refinement of their existing programs. The nonfederal members of the 
NCLS have drafted a NLSP addressing areas where NCLS foresees needed 
implementation legislation. The Corps is considering NCLS 
recommendations in development of levee safety standards and risk 
assessment and communication methodologies.
    NWRA supports NCLS efforts applicable to Corps facilities. It is, 
however, not appropriate to apply similar standards and methodologies 
to water delivery facilities operated by the Bureau of Reclamation and 
its local partners.
Bureau of Reclamation Position on NLSP Applicability to Reclamation 
        Facilities
    Prior to the release of the draft Report, the Bureau of Reclamation 
circulated an internal memo regarding (non-) applicability of the Levee 
Safety Act (``Act'') to Bureau of Reclamation canals. The memo noted 
that the Corps' interpretation of the Act included Reclamation canals.
    Reclamation consulted the Interior Department Solicitor's Office 
and was told the provisions of the Act do not apply to Reclamation. The 
Solicitor determined the Act applies to levees defined as embankments 
providing protection relating to seasonal high water and other weather 
events. In contrast, Reclamation canals are designed to deliver water.
    Additionally, the Act does not include inspection of Reclamation 
canals among the responsibilities of the Secretary of the Army. The 
test of agency jurisdiction assertion over another agency requires a 
clear congressional statement of intent that one agency have 
jurisdiction over another.
    In this case, there is no clear statement of intent that the 
Secretary of the Army have jurisdiction over Reclamation regarding 
levees or canals. Further, there is no indication in the Act that 
Congress intended to subject Reclamation to the jurisdiction of the 
Secretary of the Army.
    We agree with the Department of the Interior's and Reclamation's 
position.
Concerns of Western Water Users
    There is a need to address deterioration of aging flood control 
facilities and preventing failures like the one which occurred in New 
Orleans. It should be an immediate national priority.
    However, after reviewing the NCLS' recommendations in detail, we 
have critical concerns.
        (1)  The approach is overly broad.
        (2)  It mandates new standards that would apply to existing 
        Bureau of Reclamation water delivery facilities.
        (3)  The focus should be on control facilities that pose actual 
        risk to life or property in the flood plain.
        (4)  The Act was intended to deal with levees in and around New 
        Orleans into which flood waters were pumped to be conveyed away 
        from the low points in the city.
        (5)  Legislation should not define ``levee'' as used in the Act 
        which created the NCLS.
        (6)  The legislation should only address a program for 
        ``levees'' as that term is traditionally understood, with the 
        embankment sections of water delivery canals and dams excluded.
    Canals are designed and engineered different than levees. Applying 
flood control levee standards to water delivery canals is a non-
sequitur. It will be expensive and for many, unaffordable. The nation-
wide inspection program and new project condition and maintenance 
standards required in the legislative proposal would in most cases be 
duplicative and undermine existing operation and maintenance (O&M) 
standards and inspection procedures built into Reclamation contracts 
for both reserved and transferred facilities. The cost increase, both 
federal and non-federal, in almost every case would provide no increase 
in public safety.
    There would be a potential for greater liability to water project 
operators because applying levee standards not meant for canal delivery 
structures would make compliance difficult, if not impossible, due to 
the excessive costs of rebuilding such structures. Although the draft 
legislation would authorize financial assistance to non-federal 
entities responsible for the maintenance of federally-owned facilities, 
it is not clear how or when that assistance would be realized.
    Finally, and perhaps most important, Congress and this Committee 
recently provided new authority to Reclamation through P.L. 111-11, 
signed into law in March 2009. The law addresses aging canal systems in 
urbanized areas of the West. These authorities were proposed by Senate 
Majority Leader Harry Reid (D-NV) who in early 2008 introduced a bill 
(S. 2842) designed to make aging federally-owned canals safer across 
the West. Reclamation is inspecting urban area canals. This program for 
canal safety addresses the risk of canal failure in areas of highest 
risk. The NLSP should not duplicate or hinder this effort with more 
layers of federal bureaucracy.
    The examples of the negative impact of the NLSP on irrigation 
projects with federally owned facilities in Arizona are:
        1.  Salt River Project, Maricopa County, Arizona
                  Reclamation project
                  131 miles of canals
                  30 miles of ``urban'' canals
                  Regular periodic inspections of canals
                  ``Urban'' canals have been inspected by 
                Reclamation within the last year
        2.  Yuma County Water Users' Association, Yuma County, Arizona
                  Reclamation project
                  60 miles of canals
                  14 miles of ``urban'' canals
                  Periodic canal inspection by Reclamation
                  ``Urban'' canals have been inspected by 
                Reclamation within the last year
        3.  North Gila Valley Irrigation and Drainage District, Yuma 
        County, Arizona
                  6,587 authorized irrigable acres
                  2.5 employees
                  20 miles of canals
                  0 miles ``urban'' canals
                  Regularly safety inspected by Reclamation
Conclusion
    In the American West, water supply systems are essential components 
of communities, farms, and the environment. These facilities are an 
integral part of the nation's food-production system and their 
consistent operation helps ensure our farmers' ability to provide a 
reliable and secure food supply for our own citizens and the rest of 
the world. Population growth, environmental demands and climate change 
are placing an unprecedented strain on aging water storage and 
conveyance systems designed primarily for agricultural use. The NCLS, 
with no membership or representation from Reclamation or Reclamation 
states in the West, represents a real and significant threat to the 
continued operation of the canals with no additional public safety 
benefit.
    Our members have a long standing tradition of good working 
relationships with the Bureau of Reclamation and have supported 
updating Reclamation guidelines for analyzing projects to include 
considerations for urbanization and other effects that did not exist 
when these facilities were originally designed many decades ago. 
However, one-size still does not fit all, and blanket inspections and 
expensive, nonsensical standards for all Reclamation water delivery 
facilities are not appropriate or cost-effective. Further, many local 
districts do not have the financial capability to conduct required 
repairs or upgrades to their facilities to comply with a national levee 
standard on their canals, resulting in little or no commensurate 
increase in public safety. We believe this Committee and Reclamation 
have the appropriate knowledge and tools to develop strong safety 
standards for our water supply systems and should not be subjected to a 
``one size fits all'' approach by the NCLS.
                                 ______
                                 
    Mr. McClintock. Thank you, Mr. Noble, and thank you doubly 
for your brevity today. Our next guest is Mr. Jon Scholl, 
President of the American Farmland Trust.

              STATEMENT OF JON SCHOLL, PRESIDENT, 
           AMERICAN FARMLAND TRUST, WASHINGTON, D.C.

    Mr. Scholl. Good afternoon, Chairman McClintock, and 
Ranking Member Napolitano, and other Members of the Committee. 
Thank you for inviting me to testify. My name is Jon Scholl, 
and I am the President of the American Farmland Trust, a 
national conservation organization dedicated to protecting 
farmland, promoting sound stewardship, and helping to assure a 
sustainable future for farms and ranches.
    I am a partner in a family corn and soybean farm in McLean 
County, Illinois. Prior to joining the AFT, I was the Counselor 
to the Administrator for Agricultural Policy at the U.S. EPA, 
and before that, I worked for the Illinois Farm Bureau for 25 
years.
    I began by acknowledging the tremendous demands and 
pressures facing United States agriculture. With a global 
population anticipated to reach nine billion, we will need to 
produce more with less, nearly doubling production with less 
land, less water, and less inputs.
    I also acknowledge that there are legitimate environmental 
concerns associated with agricultural production, but I firmly 
believe that farmers and ranchers, if engaged properly, can be 
the solution to a lot of the environmental challenges that our 
Nation faces.
    Last year the USDA published conservation effects 
assessment project reports for the Upper Mississippi River 
Basin and the Chesapeake Bay. The reports documented 
significant progress of farmers in improving environmental 
performance.
    For example, in the bay, sediment loss has been reduced 55 
percent, nitrogen, 42 percent, and phosphorus, 41 percent. 
These are real reductions, real improvements. However, these 
reports also highlight serious environmental concerns yet to be 
addressed.
    In the Upper Mississippi, it stated 8.5 million acres, or 
15 percent of the crop takers, are critically under-treated for 
one or more of water, sediment, nitrogen, phosphorus, and these 
are real challenges at a real area of focus to be working on.
    So the question then becomes what is the most effective way 
to change the behavior of farmers on a landscape scale if we 
are to take the steps toward cleaner air and water, and play 
the role that agriculture can play in that.
    I submit that economic incentives and markets, not 
widespread regulation, are the most effective ways to change 
behavior in the field. However, we must recognize the fact that 
a regulatory framework is needed to propel progress.
    An effective regulatory framework is important because it 
provides several things. First, it assures a basic level of 
performance that is needed to control pollution.
    Second, it assures fair competition and a more level 
playing field for those who do the right thing to protect their 
farms and ranches.
    And, third, it provides a measure of accountability. We 
will not know if we are making sufficient progress if we don't 
have a yardstick by which to measure.
    I suggest three points on a way to move forward. First, 
build a culture of collaboration. Every farmer wants to leave 
their farm in better shape for their children than when they 
got it.
    In my years at the EPA, it was evidence to me that these 
regulators cared about the environment, and wanted to assure 
effective actions. We shared common objectives, but our 
approach to solving problems, and the language that we used to 
communicate, was very, very different.
    A recent example helps illustrate what I mean. Eighteen 
months ago, Region III EPA staff began a series of farm 
inspections in the Chesapeake Bay States to assess compliance 
with State and Federal regulations.
    When EPA inspectors arrived in the Watson Run Water Shed in 
Lancaster, Pennsylvania, not many doorbells were answered. 
After an inauspicious start, the head of the county 
conservation district suggested that district staff could help 
by arranging visits and accompanying the inspection team.
    With the assistance of trusted local partners, all 24 farms 
were visited in relatively short order. What did they find? 
Things weren't perfect. Many of the farms did not have 
conservation and manure management plans required by State law.
    But the EPA staff also discovered significantly more 
conservation practices on the ground than what they expected to 
find. What started as a predictably contentious regulatory 
process turned into a collaborative effort focused on what 
needed to be done.
    The second point, combine incentives and regulations. Use 
both carrots and sticks. We should rely on incentives in 
markets to drive the change in behavior, and not the regulation 
of each producer.
    Simply applying traditional point source regulation to all 
farmers, to all non-point sources for that matter, won't work. 
It will not get us where we want and need to go, and that is 
clean water and viable farms.
    And, third, provide regulatory certainty. A common 
complaint that I have heard from producers has been that they 
are never certain if they take the prescribed actions that will 
satisfy the regulators.
    Our environmental policy must provide some sort of safe 
harbor or regulatory relief. If a farmer has a plan and is on 
track to making changes in conservation practices, they should 
not be faced with the onerous regulatory burdens making it 
difficult for them to stay in business.
    Farming is one of the few businesses where multiple 
generations of the family members continue to own and operate 
family businesses. As farmers, we have to take a long term view 
if our farms are to thrive for our children and their children.
    We need an approach that builds trust, cooperation, and 
innovation to make agriculture a part of our solution to our 
Nation's efforts to clean water and air. Thank you.
    [The prepared statement of Mr. Scholl follows:]

      Statement of Jon Scholl, President, American Farmland Trust

    Good Afternoon, Chairman McClintock, Ranking Member Napolitano and 
other Members of the Committee, thank you for inviting me to testify 
today. My name is Jon Scholl. I am the President of the American 
Farmland Trust headquartered in Washington, DC. I am a partner in a 
family farm in McLean County, Illinois.
    American Farmland Trust is an organization that has for the last 
thirty years worked at the intersection of agriculture and the 
environment. We work to protect farmland and promote sound stewardship 
while also looking out for the economic viability of agriculture. 
Before joining American Farmland Trust, I had the privilege of serving 
for four years as the Counselor to the Administrator for Agricultural 
Policy at the United States Environmental Protection Agency during the 
Administration of George W. Bush. Before that, I worked at the Illinois 
Farm Bureau for 25 years in a variety of capacities.
    As someone involved in my family's farm operation, a former EPA 
agricultural appointee, and the President of American Farmland Trust, 
let me be the first to say that our Nation faces serious environmental 
problems and that agriculture is both a contributor and a big part of 
the solution to these challenges. Having spent my life in agriculture, 
I know that farmers and ranchers across this country feel increasing 
environmental pressure as a result of these challenges, especially with 
respect to water. This pressure is coming on many fronts. It's not just 
coming from the federal government but also states, localities and 
increasingly corporations to whom we sell our products. I can 
appreciate why you have called this hearing and thank you for the 
opportunity to contribute to this discussion and the search for 
answers.
I. Defining the Challenge
    I begin my testimony by acknowledging that there are legitimate 
environmental concerns associated with agricultural production. Let me 
give you just a few concrete examples using two recent reports 
published by the United States Department of Agriculture.
    Last year USDA published the first report from their Conservation 
Effects Assessment Project for the 8 states encompassing the Upper 
Mississippi River Basin. In that report, USDA highlighted serious 
environmental concerns attributable to the agricultural sector. USDA 
found for example, 36 million acres (62 percent of cropped acres in the 
watershed) ``are under-treated for one or more of sediment loss, 
nitrogen lost with surface runoff, nitrogen in subsurface flow, or 
total phosphorus loss,'' of which 8.5 million acres (15 percent of 
cropped acres in the UMRB) are critically under-treated and are among 
the most vulnerable cropped acres in the region; most of these acres 
have either a high or moderately high soil runoff or leaching 
potential'' (United States Dept of Agriculture, National Resources 
Conservation Service, Summary of Findings of the Assessment of the 
Effects of Conservation Practices on Cultivated Cropland in the Upper 
Mississippi River Basin, June 2010, page 7).
    Likewise, USDA's report evaluating the Chesapeake Bay watershed 
shows that 19 percent of cropped acres have a high level of need for 
additional conservation treatment. ``Acres with a high level of need 
consist of the most vulnerable acres with the least conservation 
treatment and the highest losses of sediment and nutrients.'' (United 
States Dept of Agriculture, National Resources Conservation Service, 
Summary of Findings of the Assessment of the Effects of Conservation 
Practices on Cultivated Cropland in the Chesapeake Bay Region, March 
2011, page 3). Using USDA's data, it is evident that agriculture has 
legitimate environmental concerns that require attention.
    Interestingly, those same two reports also help point the way on 
how to move forward. Namely, both reports highlight the potential for 
substantial progress that agriculture could make in years to come. In 
the Upper Mississippi, for example, the report estimates that if we 
apply a combination of fairly common nutrient management and soil 
erosion prevention techniques onto the 36 million undertreated acres, 
compared to the baseline, runoff of sediment could be reduced by 21 
percent, nitrogen by 44 percent, phosphorus by 27 percent and Atrazine 
by 18 percent. (United States Dept of Agriculture, National Resources 
Conservation Service, Summary of Findings of the Assessment of the 
Effects of Conservation Practices on Cultivated Cropland in the Upper 
Mississippi River Basin, June 2010, page 7.) These gains would be in 
addition to the significant record of accomplishment already evident in 
the region. Existing application and treatment of conservation 
practices has reduced sediment loads by 37 percent, nitrogen loads by 
21 percent, phosphorus loads by 40 percent, and Atrazine loads by 51 
percent (Id. at p. 4).
    In the Chesapeake Bay, USDA reports that adoption of additional 
conservation practices on undertreated acres would, compared to the 
2003-06 baseline, ``further reduce edge-of-field sediment loss by 37 
percent, losses of nitrogen with surface runoff by 27 percent, losses 
of nitrogen in subsurface flows by 20 percent, and losses of phosphorus 
(sediment-attached and soluble) by 25 percent'' (United States Dept of 
Agriculture, National Resources Conservation Service, Summary of 
Findings of the Assessment of the Effects of Conservation Practices on 
Cultivated Cropland in the Chesapeake Bay Region, March 2011, page 3). 
Again a focus on these acres would add to the impressive record of 
achievement that conservation has had on the landscape in which 
adoption of conservation practices has reduced edge-of-field sediment 
loss by 55 percent, losses of nitrogen with surface runoff by 42 
percent, losses of nitrogen in subsurface flows by 31 percent, and 
losses of phosphorus (sediment attached and soluble) by 41 percent 
(Id.).
    It strikes me that an important place to start in addressing 
agriculture's contribution to environmental problems is to recognize 
and learn from the gains that agriculture has made.
II. What needs to be done?
    So what then needs to be done to both address environmental 
concerns and reduce burdens on producers - burdens which in some cases 
lead to significant financial stress? I would suggest three general 
courses to follow:
1) Build a ``culture of collaboration''
    Farmers are pragmatic and they will acknowledge that the industry 
can and should do more to address environmental concerns. But they also 
need to be recognized for the progress they've made. Virtually every 
farmer will tell you that he or she wants to leave their farm in better 
shape for their children than it was when they got it. In the many 
years I spent working at EPA during the Bush Administration, I can 
attest to spending many hours talking about, explaining and working 
through concerns that staff had with agriculture. It was quickly 
evident to me that these ``regulators'' cared deeply about the 
environment and wanted to assure that appropriate actions were taken to 
achieve their worthy objectives. While we shared common objectives, our 
approach to solving problems and the language we used to communicate 
about them were very different. My time working with state government 
likewise informed me that we need a lot more effort to overcome the 
barriers to achieving common objectives if we are to assure a 
productive agriculture and a clean environment.
    A more recent field example also helps illustrate what I mean. 
About 18 months ago, the staff in EPA Region III began a series of 
inspections on farms in Bay states to assess environmental performance 
and compliance with state and federal laws. When EPA inspectors arrived 
in the driveways of farms in the Watson Run watershed in Lancaster 
County, PA, not many doorbells were answered. After an inauspicious 
start, the head of the county conservation district suggested that he 
might help in arranging visits and accompany the inspection team. With 
this local assistance all 24 farms were visited in relatively short 
order. What did they find? Things weren't perfect. Many of the farms 
did not have conservation and manure management plans required by 
Pennsylvania state law. But EPA staff also learned that conservation 
practices and stewardship performance was significantly higher than 
what they expected, particularly in adoption of no till, soil testing 
and use of cover crops. In the end, what had started as a predictably 
contentious process that created ill will in the farming community 
turned into a more collaborative effort that showed that farmers are 
committed to good stewardship and the work yet to be done. An important 
outcome of all this is that the Lancaster County Conservation District 
is now implementing a program to ensure that farms are doing all they 
need to do, both in terms of practices and paperwork, using education, 
careful planning, follow-up, and, when necessary, compliance 
enforcement by the local district board. I believe this serves as a 
lesson in the value of collaborative action that can turn around an 
adversarial relationship to one of engagement. In the end, EPA needed 
local cooperation and guidance to do its job and local and state 
officials were able to use momentum created by the inspections to focus 
the attention of the community in a constructive manner.
2) Back up collaboration with action
    I believe in that old adage that ``actions speak louder than 
words.'' As a result not only do we need more talking, we need more 
action to create real collaboration.
    One measure of action is the commitment the federal government 
applies to non-point sources under our water policies. Since 1988 the 
federal government has made a significant commitment to wastewater 
treatment and collectively has spent more than $30 billion dollars of 
the Clean Water State Revolving Fund which has wastewater as a primary 
purpose (Environmental Protection Agency, FY 2011 Budget in Brief, page 
86). Indeed, in FY10 the federal government spent more than $2 billion 
in the CWSRF with large sums flowing to wastewater (Environmental 
Protection Agency, FY 2012 Budget in Brief, page 109). While that money 
no doubt is necessary, by comparison, EPA's section 319 non-point 
source funds measure in the millions, and in FY10 the federal 
government spent $200 million, with most of this money directed towards 
planning, not implementing (Id at page 89). While money is not the only 
measure and it is a difficult resource to come by in a tough budget 
environment, this disparity points out that we haven't really put a 
priority on solving non-point problems, certainly as compared to what 
we have invested in point source pollution issues.
    Another way to translate collaboration into action is to work to 
reduce farmers' and ranchers' fears. I can't tell you the number of 
times I talk to producers and I am told that he or she doesn't want to 
collect data, implement practices voluntarily or participate in EPA 
monitoring for fear their actions will subsequently lead to additional 
regulation. American Farmland Trust is currently working, for example, 
in the Ohio River watershed with the electric power industry to develop 
a region-wide water trading system. Utilities would pay farmers to 
reduce nitrogen runoff and, in turn, those reductions would satisfy EPA 
and state level water pollution standards. This is a classic win-win 
scenario in which producers earn income, utilities avoid costlier 
compliance obligations, and society gains cleaner water. Yet many 
farmers have said that while they are attracted to the concept, they 
fear that as soon as they begin implementing nitrogen reduction 
practices, those practices will be used against them as the basis for 
further regulation. This is one example of many I could give, the point 
of which is we must create regulatory certainty for producers so when 
they step up to help, they don't feel as though they will be 
contributing to the establishment of a new regulatory standard that 
different farms, climate conditions or evolving technology might not 
find workable.
    A strong emphasis on a classical regulatory approach to farm 
conservation issues causes many farmers to fear the expensive, 
unmanageable and tangled web in which they might get caught instead of 
focusing their energy and resources on a more appropriate and natural 
desire to strive for continuous improvement in their operations. 
Incentivizing good behavior draws people into action; the threat of 
regulations makes them hide.
    Last year American Farmland Trust supported a bill (HR 5509) by 
Congressman Goodlatte from Virginia and Holden from Pennsylvania that 
created safe harbors for conservation practice adoption in the 
Chesapeake Bay. Under this approach producers would be responsible for 
undertaking certain conservation practices but doing so relieves them 
of regulatory burdens. I encourage this Committee to explore changes 
like that in order to create collaboration through certainty.
3) Overcome unnecessary barriers
    In addition to creating a culture of collaboration, we need to 
break down silos that send dramatically mixed signals to those whose 
behavior we seek to influence. Since the Chairman and Ranking Member 
are both from California, I use an example from your state. As all of 
us know the State of California has created, with voter agreement, a 
carbon cap and trade system. Under that system, the California Air 
Resources Board has the power to create offsets. This means that 
farmers and ranchers could be paid to capture and sequester carbon. One 
well known technique to do that is by creating methane digesters that 
destroy harmful methane gas generated from livestock manure. The Air 
Resources Board has in fact acknowledged the high value of digesters by 
approving them as one of California's first offset types. Yet while one 
arm of ARB approved use of digesters, another arm of ARB refuses to 
issue permits to build digesters over a concern they may violate 
NOx standards.
    Commonsense dictates that something is wrong here. I believe we 
should be trying to examine the net environmental benefits of carbon 
versus potential NOx emissions. I believe a culture of 
collaboration, one of thinking with the parties involved about how to 
get things done, would have the federal and state governments working 
together to explore this problem and resolve it so that those digesters 
can be built. In fact, at a recent meeting with the EPA, I asked them 
to do just that - work outside the box, break down silos and help ARB 
solve this obvious problem. I would note that in the world of water, 
that sort of federal and state breaking down of silos and looking for 
ways to overcome barriers has lead to recent work in the Chesapeake 
Bay. USDA, the state departments of agriculture, state departments of 
environment and the EPA are all now working together in the Bay to 
tackle pressing environmental problems in which agriculture is part of 
the problem but also a key to their solution.
III. Finding a better way
    I find the current level of contention between agriculture and 
those charged with protecting society's interest in a clean environment 
to be very sad. We share common objectives but we can't seem to get 
beyond classical means of dealing with pollution to creative and 
workable ways to engage each other. At American Farmland Trust, we know 
that there is a right way and a wrong way to work with farmers on 
environmental issues. The environmental challenges farmers and ranchers 
grapple with are complex, and difficult to identify and resolve. While 
we know that regulations have their place and indeed are sometimes 
necessary, we need to approach these issues differently because the 
classic 1970s-era regulatory approach to environmental clean-up is a 
poor fit for agriculture. Many of these laws, which have helped to 
clean our air and clean our water, were expressly designed to deal with 
industrial point source polluters. If we are entering a world in which 
non-industrial, non-point source pollution is now one of our central 
challenges then we must look to another approach.
    It's critical to understand that protecting the environment is an 
important issue to farmers and ranchers. They feel the effects first, 
and often in their pocketbooks, if problems persist. They have a strong 
incentive to keep their land productive and clean. Building upon these 
natural and long standing realities of farm life while reaching out and 
seeking ways to build trust and cooperation are vital to the future 
success of our Nation's efforts to clean our air and water. We stand 
ready to assist in this worthy endeavor.
                                 ______
                                 
    Mr. McClintock. Thank you very much. Our next witness is 
Mr. Richard Pool, President of Pro-Troll Products, in Concord, 
California. You have five minutes.

             STATEMENT OF RICHARD POOL, PRESIDENT, 
            PRO-TROLL PRODUCTS, CONCORD, CALIFORNIA

    Mr. Pool. Thank you, Mr. Chairman. My name is Richard Pool. 
I am a member of the California salmon fishing industry. I 
appreciate the opportunity to appear before you today.
    The fishing industry is a heavily regulated industry by 
both the Federal Government and States. There is virtually no 
fish in this country that does not have some sort of regulation 
on its take, on its survival, and so on.
    I am here today to talk about regulations that we are very 
concerned about relative to salmon. We need some regulations to 
remain intact. I was deeply disturbed to read the public 
announcement of the hearing by this Subcommittee scheduled for 
Fresno on April 11th.
    It appears to me that some on this Committee are willing to 
shut down the entire California salmon fishing industry and 
allow the salmon runs to go extinct in an effort to get more 
money for some junior water rights holders.
    I am very concerned about this and the jobs and economic 
repercussions that it could create. I am a manufacturer of 
salmon fishing equipment located in Concord, California. We 
have been in business for 32 years, and we are one of the 
largest manufacturers of specialized lures and attracters that 
catch salmon.
    I have been involved in salmon recovery for over 30 years. 
I am here today on behalf of my own company, other companies, 
and all the organizations involved in the California sport and 
commercial salmon industry.
    On the back of my testimony is a chart, and I am not sure 
that it was distributed to the Committee. It is a chart, and I 
hope if it was not distributed that you can see, but it is a 
chart which shows the decline of the most important salmon run 
in California.
    It is the fall run salmon of the Central Valley. The chart 
shows that between 2002 and 2009 that this run declined 97 
percent. Only three percent remain. This is the largest salmon 
crash in the history of the United States since the era of the 
dams.
    The fall run is the mainstay of the salmon fishing 
industry. Because of this crash, the entire salmon industry was 
shut down completely in 2008 and 2009 with only a token season 
in 2010.
    The economic and jobs impact of that shutdown was 
staggering. Tens of thousands of jobs were lost in coastal 
communities from Morro Bay to Crescent City, who lost their 
primary economic engine.
    The primary reason for the fall run crash was a lack of 
regulation in the policies of the government, which allowed 
unlimited pumping of water from the California-Sacramento delta 
between the years of 2000 and 2007.
    In the spring of each year, in excess of 30 million tiny 
salmon smolts attempt to migrate down the Sacramento River, and 
through the delta on their way to the ocean. Studies show that 
when the pumps are run to maximum without regulation, up to 92 
percent of these smolts are either lost in the river, or are 
pulled in the central delta, where there is no foliage cover 
and there is no food.
    The result is that most of these small smolts perish. If 
you look at my chart again, you will see that in 2010 the trend 
was finally reversed, and the run size increased. There are two 
factors that appear to be the primary reasons for the increase.
    First of all, in the spring of 2008 the Federal Court 
curtailed the pumping rate, which in-turn cut the smolt 
mortality in the delta. In essence, the Court brought in 
regulations.
    The result three years later in 2010 was that there were 
more mature adult salmon came back. Another factor which helped 
the 2010 recovery was trucking hatcheries smolts around the 
delta.
    In the spring of 2008 approximately 13 million hatchery 
smolts were trucked around the delta to San Pablo Bay. These 
two factors reduced pumping and the trucking of smolts around 
the delta and reduced the regulatory problem in the delta. The 
2010 returns increased.
    The Brown Administration and the State Legislature are 
working diligently to formulate the best water policies for all 
sectors of California. We believe interference with this 
process is counterproductive. It will only result in more 
delays and more lawsuits, which compound the problem.
    The salmon industry needs salmon recovery. We do not need 
policies which only exacerbate our problems. We urge the Water 
and Power Subcommittee, and the agricultural community, to work 
with us toward real solutions for both farmers and fish. Thank 
you.
    [The prepared statement of Mr. Pool follows:]

    Statement of Richard Pool, President, Pro-Troll Fishing Products

    My name is Richard Pool and I am a member of the California salmon 
fishing industry. I appreciate the opportunity to appear before you 
today.
    I was deeply disturbed to read the public announcement of the 
hearing by the Sub Committee on Water and Power scheduled for Fresno on 
April 11th. Based on some very strong words by several representatives, 
it appears that the objective of this hearing is to lay the groundwork 
to shut down the California salmon fishing industry and allow the 
Central Valley salmon runs to go extinct. Should these actions take 
place, my company and thousands of others will be out of business. I am 
here today to respond.
    I am a manufacturer of salmon fishing equipment located in Concord, 
California. My company has been in business 32 years. We are one of the 
largest manufacturers of the specialized lures and attractors that are 
used to catch salmon. I have been involved in salmon recovery efforts 
for thirty years and have served on numerous state and federal advisory 
committees involving salmon. I am here today on behalf of my own 
company, Pro-Troll Fishing Products, The Golden Gate Salmon Association 
and Water4Fish. I am also here on behalf of the thousands of businesses 
involved in the economic activity related to salmon fishing in 
California. This includes both sport and commercial businesses. We are 
the fishermen who catch the salmon. We are the seafood processors who 
handle the fish and bring it to market. We are the marinas and other 
infrastructure facilities that support the salmon industry. We are the 
manufacturers and distributors of the specialized equipment used to 
catch salmon. We are the salesmen who represent the manufacturers in 
the market. We are the retailers that provide the access to salmon 
equipment in our stores. We are the ocean charter operators and river 
guides that carry up to 300,000 salmon fishermen a year. We are the 
recreational fishermen who choose salmon fishing as a preferred healthy 
outdoor family activity. And finally, many of us are those that are 
100% unemployed and have lost our businesses, our boats and sometimes 
our homes.
    It seems rather clear that the target of those who represent the 
junior water rights holders of the West Side of the San Joaquin valley 
is to undo the biological opinion of the National Marine Fisheries 
Service that was put into place to keep salmon and steelhead from going 
extinct. To accomplish this they appear willing to destroy the billion 
dollar salmon industry and the economic engine for hundreds of coastal 
communities.
    For over one hundred years the salmon industry has been a mainstay 
of the California economy and a major food producer for California and 
the nation. As recently as 2002, 720,600 Central Valley salmon were 
harvested sending over 8.6 million pounds of fresh salmon to the market 
Since that time the policies of the state and federal water agencies 
have devastated most of this production. It can be recovered, but it 
cannot be recovered without policies that balance the water needs of 
the salmon with the other water needs of the state. A water grab by a 
few agricultural interests at the expense of the salmon industry and 
the other water users of the state is simply fallacious public policy.
    I am attaching a chart which shows the decline of the most 
important salmon run in the state. It is the fall run salmon of the 
Central Valley. The chart shows that between 2002 and 2009 the run 
declined 97%. This is the largest salmon decline in U.S. history since 
the era of dam construction. The fall run is the mainstay of the salmon 
industry. Because of this crash, the entire salmon industry was shut 
down in 2008 and 2009 with only a token season in 2010. The economic 
impact of the shutdown was staggering. Tens of thousands of jobs were 
lost and coastal communities from Morro Bay to Crescent City lost their 
primary economic engine.
    Last year Governor Schwarzenegger reported to the Commerce 
Department that the economic damage from the closure of salmon fishing 
in California amounted to at least $250 million per year. Southwick 
Associates calculated the real cost at approximately $1.4 billion to 
California alone and probably half that much again to Oregon. This 
calculation was based on the use of federal and state data. It also 
showed a job loss of 23,000.
    The primary reason for the fall run crash was the policies of the 
government which allowed unlimited pumping of water from the Delta 
between 2000 and 2007. In the spring of each year, in excess of 30 
million tiny salmon smolts migrate down the Sacramento River and 
through the Delta on their way to the ocean. Studies show that when the 
pumps run at maximum, up to 92% of these smolts are either lost in the 
river or are pulled into the central Delta where there is no foliage 
cover and there is no food. The result is that the smolts perish.
    If you look at the fall run chart again, you'll see that in 2010 
the trend was finally reversed and the run size increased. There are 
two factors that appear to be the primary reasons for this increase. In 
the spring of 2008, the Federal Court ruled that the biological opinion 
which was in place did not protect the salmon from extinction. Based on 
the scientific evidence, the court curtailed the spring 2008 pumping 
rate which cut the smolt mortality in the Delta. The result, three 
years later, was that the mature adults came back in increased numbers 
in the fall of 2010. Another factor which helped the 2010 recovery was 
trucking hatchery smolts around the Delta. In the spring of 2008, 
approximately 13 million hatchery smolts were trucked around the Delta 
to San Pablo Bay thereby avoiding the destruction by the Delta pumping. 
These two factors minimized the damage by the pumps. The improved 2010 
returns show the results.
    There are some who say the decline of salmon was caused by poor 
ocean conditions but this is contradicted by the fact that native delta 
fish, which never venture to the ocean, declined precipitously at the 
same time the pumps were ramped up and the salmon declined. In other 
words, the ocean conditions theory doesn't explain the loss of fish 
like the delta smelt that don't live in the ocean.
    There are three other salmon runs in the Central Valley. They are 
also in deep trouble. The table shows the current situation and how 
much they have dropped. Unfortunately, these runs are wild fish and 
cannot be trucked around the Delta. They suffer the full impact of the 
pumps. The Winter Run, which is listed as endangered, is once again 
very close to extinction.
[GRAPHIC] [TIFF OMITTED] 65599.015

    .epsThe political thrust to overturn the biological opinion of 2009 
is the wrong policy. In all likelihood the biological opinion is the 
only thing left between survival and extinction of the salmon runs and 
the thousands of jobs that depend on them.
    The biological opinion also represents the best available science. 
The National Marine Fisheries Service spent six years researching the 
causes of the salmon declines and the needed corrective actions. Their 
conclusions were peer reviewed three times. At the request of Congress, 
the National Academy of Sciences also reviewed the NMFS findings. The 
NAS supported the basic findings of the opinion.
    The future water policies in California are extremely important and 
are highly complex in nature. The Brown Administration and the State 
Legislature are working diligently to formulate the best policies for 
all sectors of the state. We believe the track which some in the Water 
and Power Sub Committee are currently proposing which attempts to put a 
small sector of the water users in a preferred position is highly 
counterproductive to the states best interests. It will only result in 
more delays and more lawsuits which compound the problem.
    The salmon industry in California is hurting badly and we are 
seeking government assistance for our plight. I am attaching two 
exhibits which demonstrate the problems we are facing. The first is a 
list of fifty salmon-related businesses that have completely shut down 
since 2008. The other exhibit shows three examples of salmon businesses 
that are hurting badly. I can add Pro-Troll to that list. We lost 40% 
of our business with the 2008 salmon closure. In spite of our best 
efforts at selling in other regions, we have not been able to replace 
that loss. We have not made money in three years, our credit line has 
been cut off and we have cut expenses to the bone to survive. We have 
laid off employees, cut nearly all advertising and stopped most new 
product development.
    The salmon industry needs salmon recovery. We do not need policies 
which only exacerbate our problems. We urge the Water and Power Sub 
Committee and the agricultural community to work with us towards real 
solutions for both the farmers and the fish.
                                 ______
                                 
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                                 .eps[GRAPHIC] [TIFF OMITTED] 65599.012
                                 
                                 .eps[GRAPHIC] [TIFF OMITTED] 65599.013
                                 
    .epsMr. McClintock. Thank you for your testimony. Our next 
witness is Mr. Paul Orme, who is an attorney for Stanfield, 
Central Arizona, and New Magma Irrigation and Drainage 
Districts, in Mayer, Arizona.

 STATEMENT OF PAUL ORME, ATTORNEY, CENTRAL ARIZONA IRRIGATION 
AND DRAINAGE DISTRICT, MARICOPA-STANFIELD IRRIGATION & DRAINAGE 
    DISTRICT, AND NEW MAGMA IRRIGATION AND DRAINAGE DISTRICT

    Mr. Orme. Chairman McClintock, Ranking Member Napolitano, 
and Members of the Committee, my name is Paul Orme, and I am an 
Arizona attorney representing three irrigation districts which 
receive irrigation water through the Central Arizona Project.
    Combined, these three districts total over 200,000 
irrigable acres in Pinal County, Arizona, and utilize 
approximately 60 percent of the agricultural water delivered 
annually through the CAP.
    These remarks concern the Navajo Generating Station located 
near Page, Arizona, and the emissions control options being 
considered for improving visibility in that area, which 
includes the Grand Canyon National Park.
    The Environmental Protection Agency is in the process of 
determining the best available retrofit technology, or BART, to 
reduce nitrogen oxide emissions at NGS. Litigation has also 
been filed by a coalition of environmental groups on these same 
visibility standards, which may or may not be partially driving 
this process.
    The EPA's ultimate BART decision will significantly impact 
the people and economy in and around Page, including the Hopi 
and Navajo Indian Reservations. Their stories deserve to be 
heard, and are being told by others.
    My focus will be the impact in the farm communities of 
Central Arizona. NGS is the source of power needed to deliver 
the major share of Arizona's entitlement of Colorado River 
water, over 300 miles, via the Central Arizona Project from 
Lake Havasu to Tucson.
    Twenty-four percent of the plant is held by the United 
States Bureau of Reclamation. The majority of water delivered 
through the CAP aqueduct is used by farmers. In a typical year, 
non-Indian agriculture uses nearly 50 percent of the total 
water delivered through the CAP. Agricultural water for Indian 
use adds another 200,000 acre-feet to the total.
    Vital to agriculture's future in Arizona is access to a low 
cost, affordable, and reliable supply of water. Some of the 
emissions control options being considered by the EPA at the 
Navajo plant could render CAP water an uneconomical water 
resource option for agriculture.
    And for those farmers unable to access water resources 
other than CAP water, these regulatory requirements will put 
agriculture's viability as a business in jeopardy. Family 
farmers, irrigation districts, associated farming and 
agricultural businesses, and the local economies of several 
farming communities in Central Arizona, face significant impact 
and economic hardship should the emissions controls at NGS 
render CAP water unaffordable for agricultural use.
    Currently, two emission control options are being 
considered. One are low NOx burners. The second is 
selective catalytic reduction, or SCR, with bag houses to 
collect particulates, options with a significant difference in 
associated costs, but with air visibility results imperceptible 
to the human eye.
    If the EPA selects the more costly option for BART, it is 
possible that the existing owners of the plant will decide to 
shut it down, requiring CAP to find an alternative source of 
power, resulting in water costs entirely beyond the capability 
of agriculture to pay.
    For a variety of reasons, a decision to shut down NGS would 
be the worst possible result for Arizona and the CAP. The SCR 
option is estimated to have an impact of adding $16 per acre-
foot to the water costs to agriculture, or a 33 percent 
increase.
    This increase will have a significant cascading negative 
impact on agriculture and the economy of Central Arizona. If 
available to farmers, they will increase their use of non-
renewable groundwater supplies, and some will have to 
discontinue farming.
    Local businesses that support agriculture will suffer, 
aquifer levels will decline, with related degradation of water 
quality, and increased unemployment can be expected due to 
agricultural related job losses during one of the worst 
recessions experienced by our country.
    This is of particular concern for a community such as 
Maricopa-Stanfield, which has seen astronomical population 
growth in the last 10 years, which growth is dependent or 
partially dependent on a stable groundwater supply for future 
urban use.
    The irony of this situation is that the 1968 CAP enabling 
legislation passed by Congress, and then the 1980 Groundwater 
Management Act passed by the State of Arizona, which is one of 
the most restrictive groundwater pumping laws in the country, 
both were passed with the idea that the CAP water would be a 
replacement supply for groundwater--not a supplemental supply.
    If the NGS is shut down, or the most expensive technology 
is adopted, much of Central Arizona farming will have to return 
to expensive groundwater pumping.
    Arizona and western water policies are extremely 
complicated, and interwoven throughout all water sectors. The 
2004 Arizona Water Settlements Act was signed into law to 
ensure certainly and reliability when it came to resource 
management and planning in Arizona.
    One such component resolved long term standing rights 
associated with the Gila River Indian community. To make the 
settlement work, non-Indian agricultural water users provided a 
substantial supply of long term CAP water in return for short 
term affordable CAP water use through the year 2030.
    The Tribes received assurance of affordable water in lieu 
of free winter rights water.
    Mr. McClintock. I am sorry, but I am going to have to ask 
you to wrap up here, and if you could summarize in a sentence.
    Mr. Orme. Yes. If the NGS technology requires a 33 percent 
increase in costs for agricultural water use, then the non-
Indian agricultural water use will be denied one of their main 
benefits under the Gila River Indian Water Rights Settlement, 
which will undoubtedly chill future water rights settlements if 
one Federal agency, such as the EPA, can deny the benefits that 
another Federal agency, the Department of the Interior, granted 
in the original settlement. Thank you.
    [The prepared statement of Mr. Orme follows:]

    Statement of Paul Orme, General Counsel to the Central Arizona 
   Irrigation and Drainage District, Maricopa-Stanfield Irrigation & 
   Drainage District, and New Magma Irrigation and Drainage District

    My name is Paul Orme and I am an Arizona Attorney representing 
three irrigation districts which receive irrigation water through the 
Central Arizona Project. Combined these three districts total over 
200,000 irrigable acres in Pinal County, Arizona and utilize 
approximately 60% of the agricultural water delivered annually through 
the CAP.
    These remarks concern the Navajo Generating Station (NGS), located 
near Page, Arizona, and the emissions control options being considered 
for improving visibility in that area which includes the Grand Canyon 
National Park. The Environmental Protection Agency (EPA) is in the 
process of determining the Best Available Retrofit Technology (BART) to 
reduce nitrogen oxide (NOX) emissions at NGS. Litigation has 
also been filed by a coalition of environmental groups on these same 
visibility standards, which may or may not be partially driving this 
process.
    EPA's ultimate BART decision will significantly impact the people 
and economies in and around Page, including the Hopi and Navajo 
Reservations. Their stories deserve to be heard and are being told by 
others. My focus will be the impact in the farm communities in Central 
Arizona.
    NGS is the source of power needed to deliver the major share of 
Arizona's entitlement of Colorado River water over 300 miles via the 
Central Arizona Project (CAP) aqueduct from Lake Havasu to Tucson. 
Twenty four percent of the output of the plant is held by the United 
States Bureau of Reclamation.
    The majority of water delivered through the CAP aqueduct is used by 
farmers. In a typical year, non-Indian agriculture uses nearly 50% of 
the total water delivered through the CAP. Agriculture water for Indian 
use adds another 200,000 acre feet to the total. Vital to agriculture's 
future in Arizona is access to a low cost and reliable supply of water. 
Some of the emission control options being considered by the EPA at the 
Navajo plant could render CAP water an uneconomical water resource 
option for agriculture. And for those farmers unable to access water 
resources other than CAP water, these regulatory requirements would put 
agriculture's viability as a business in jeopardy. Family farmers, 
irrigation districts, associated farming and agricultural businesses, 
and the local economies of several farming communities in Central 
Arizona face significant impact and economic hardship should the cost 
of emission controls at NGS render CAP water unaffordable for 
agricultural use.
    Currently two emission control options are being considered: 1) low 
NOX burners; and 2) selective catalytic reduction (SCR) with 
bag houses to collect particulates, options with a significant 
difference in associated costs, but with air visibility results 
imperceptible to the human eye. If the EPA selects the more costly 
option for BART, it is possible the existing owners of the plant will 
decide to shut it down, requiring CAP to find an alternative source of 
power resulting in water costs entirely beyond the capability of 
agriculture to pay. For a variety of reasons, a decision to shut down 
NGS would be the worst possible result for Arizona and the CAP.
    CAP estimates that the impact to energy charges within the water 
rates to install the low NOX burners at NGS are in the range 
of $0.50 per acre-foot. This is a manageable increase in exchange for a 
significant reduction on NOx emissions. Conversely, the SCR 
treatment is estimated to have an impact of over $16.00 per acre-foot. 
An increase of $16.00 per acre-foot will have a significant cascading 
negative impact on agriculture, the economy and environment of Central 
Arizona. Farmers will turn to increasing the use of non-renewable 
groundwater supplies and some will discontinue farming. Local 
businesses that support agriculture will suffer, aquifer levels will 
decline with related degradation of the water quality, and increased 
unemployment can be expected due to agriculture-related job losses 
during one of the worst recessions experience by our country.
    The introduction of CAP water as a renewable water supply to 
Central Arizona has benefited the agricultural economy and the State of 
Arizona--by assisting the agricultural user in meeting regulatory 
objectives to reduce groundwater use, ensuring long term availability 
of groundwater resources as a resource for future drought conditions, 
and through a reliable water supply helping to sustain economic growth 
and vitality of the agricultural communities that depend upon 
agriculture for their livelihoods.
    For example, one of my clients is the Maricopa-Stanfield Irrigation 
& Drainage District (MSIDD) located in Pinal County Arizona. That 
District pumped between 300,000--400,000 acre-feet of groundwater per 
year before the introduction of CAP water in the late 1980's. During 
calendar year 2010, MSIDD pumped a total of 81,000 acre-feet while 
providing irrigation water services to over 70,000 acres. CAP water 
during the same year constituted 70% of total water deliveries, or 
approximately 200,000 acre feet. Should water costs increase by $16 per 
acre foot as predicted through the installation of the SCR technology 
and bag houses, irrigation districts such as MSIDD will resume 
groundwater pumping as a less costly option for the farmers served by 
this District. The 200,000 acre-feet of CAP water that was used by the 
District in 2010 will be partially replaced with less expensive 
groundwater.
    To add further perspective, since 1987 MSIDD has delivered 3.8 
million acre feet of renewable CAP water, essentially preserving a like 
amount of groundwater in District aquifers for drought purposes. Where 
historically during the 1970's and 1980's there was significant 
overdraft of the aquifer within MSIDD boundaries and regularly 
occurring subsidence, today the aquifers in Central Arizona have 
stabilized or rebounded underlying those agricultural lands that have 
had access to CAP water. Should the CAP water become uneconomic to use 
due to NGS emission controls, aquifer overdraft and possible subsidence 
will return. The irony of the situation is that two epic and very 
successful Federal and State policies that were implemented in Central 
Arizona in the 1980's, the CAP Enabling Act and the Arizona Groundwater 
Management Act, originated to reduce groundwater overdraft and large 
scale pumping in Central Arizona. Now, if the EPA requires SCRs and bag 
houses on NGS, large scale groundwater pumping in central Arizona will 
return.
    If the EPA restrictions are fully implemented, MSIDD estimates 
agricultural lands will shrink by 35-50% reaching upwards of 35,000 
acres. With anticipated urban growth in the area over the next 50 
years, water supply and water quality problems may be further 
exacerbated due to over-pumping in the near term.
    For a typical farmer in Central Arizona, the cost of purchasing and 
delivering water is the single highest operating expense, comprising 
over 20% of the total expense to operate a farm. In order for the 
farmer to remain competitive, it is essential that all operational 
costs are managed closely. Cost increases not related to the 
agricultural market are difficult for the farmer to pass on to the 
consumer. With increased water costs, farmers will be forced to absorb 
those costs directly without the ability to pass on those cost 
increases. A $16 per acre-foot increase in water costs equates to a 
cost increase of over $50 per acre based on a farm using 4.5 acre feet 
per acre of water per year, and assuming 70% of the water is from the 
CAP. For a 1,000 acre farm, the total cost increase would be over 
$50,000. Crops typically grown in this region are of the variety that 
competes on the world market. There is very little room to pass on any 
cost increases due to the nature of this highly competitive market. 
Furthermore, the $16 per acre-foot will have the same impact on all the 
farmers in the CAP including the Native Americans sector.
    The impacts to an irrigation district such as MSIDD are also 
substantial. MSIDD estimates that almost 75% of its entire budget is 
devoted to water costs, both CAP and groundwater. Of those costs, 95% 
is energy. Should EPA require the SCR control option be employed, MSIDD 
would be facing a budget increase of over $3.0 million. It is this cost 
increase that is passed along to farmers. Should NGS be shuttered, CAP 
estimates that replacement energy costs would add $30--$115 an acre 
foot to the price of water, or a 60--200% cost increase for MSIDD, and 
all CAP agricultural water users.
    Arizona and western U.S. water policies are extremely complicated 
and interwoven throughout all water use sectors. In 2004, the Arizona 
Water Settlements Act was signed into law. This comprehensive act had 
several components associated with it in ensuring further certainty and 
reliability as it came to water resource management and planning in 
Arizona. One such component resolved a long standing dispute on 
determining the extent of the water rights associated with the Gila 
River Indian Community (GRIC). Substantial time and effort was spent by 
the federal government, Gila River Indian tribes, cities, and 
irrigation districts in negotiating a workable solution for all 
parties. The agricultural sector provided the largest allocation of 
water to settle the GRIC water claims. With the relinquishment of the 
long term CAP water allocations, the agricultural sector was to receive 
in turn an adequate and affordable supply of CAP water through the year 
2030. The Tribes received assurance of affordable CAP water in lieu of 
free Winters Rights water. Under the SCR emission control options 
proposed by the EPA, the principles associated with the assurance of 
affordable CAP water for agricultural use will be violated. 
Consequently, an uneconomical CAP water source will have far reaching 
impacts not only to the individual Indian and non-Indian farmers, but 
may also have the potential to undermine the water settlement 
agreement. It will certainly give potential parties to future water 
settlements pause, if one agency of the Federal government (EPA) can 
undo benefits agreed to by another agency (DOI) before the ink is 
barely dry on the settlement agreement.
    Unplanned or unforeseen adverse economic impacts due to 
catastrophic natural events are well understood risks that farmers 
accept as a cost of doing business. Farmers, where possible, protect 
the business by insuring for such occurrences. Adverse economic impacts 
that are purposefully planned without consideration on a broader scale 
on how those actions impact others are careless and irresponsible. 
Farmers going out of business, irrigation district and farming related 
job loss, and local communities economies harmed as a result of the 
questionable emission control options currently being considered at NGS 
are major economic implications for Central Arizona. Pinal County's 
economy will be hit particularly hard, with some of the nation's most 
productive farmland going fallow. The EPA's emission control options 
will have real impacts directly on many people's livelihoods not only 
on the Hopi and Navajo Reservations in Northern Arizona and in the Town 
of Page, but also on the farm and tribal communities of Central 
Arizona.
    We urge the House Water and Power subcommittee to recognize the 
damaging economic, social and environmental impacts these actions from 
the EPA may have on the agriculture industry in Central Arizona.
    Thank you for the opportunity to provide the Subcommittee with this 
testimony.
                                 ______
                                 
    Mr. McClintock. Thank you, and your full testimony will be 
included in the record. Our final witness is Mr. Norm Semanko, 
Executive Director and General Counsel of the Idaho Water Users 
Association, in Boise, Idaho. Welcome.

   STATEMENT OF NORM SEMANKO, EXECUTIVE DIRECTOR AND GENERAL 
      COUNSEL, IDAHO WATER USERS ASSOCIATION, BOISE, IDAHO

    Mr. Semanko. Thank you, Chairman McClintock, Ranking 
Member, and Members of the Subcommittee, my name is Norm 
Semanko, and I am the Executive Director and General Counsel of 
the Idaho Water Users Association.
    I appreciate the opportunity to provide testimony on this 
important topic. It is a particular pleasure for me to appear 
before my Congressman and good friend, Subcommittee Member Raul 
Labrador, from Idaho's First Congressional District. We 
appreciate his ongoing dedication and support on issues of 
importance to our membership.
    Recent regulatory efforts at the EPA carry the risk of real 
potential harm for western irrigators and the rural communities 
that they serve. Our concerns with EPA's actions are numerous. 
I focus my testimony on issues related to the use of pesticides 
and water storage.
    With regard to the issue of pesticides, the proposed 
regulations at the EPA, and the ongoing consultations regarding 
the use of pesticides threaten our very ability to deliver 
water.
    On June 2 of last year, the EPA released its draft NPDES 
permit for point source discharges from the application of 
pesticides to waters of the United States. This permit is also 
known as the Pesticide General Permit, the PGP.
    The PGP was developed in response to the 2009 decision of 
the Sixth Circuit Court of Appeals in National Cotton Council 
versus EPA case. The court vacated EPA's 2006 rule and 
longstanding interpretation that NPDES permits were not 
required for the applications of pesticides to United States 
waters.
    As a result of the court's decision, discharges to waters 
of the United States from the application of pesticides will 
now require NPDES permits when the court's mandate takes 
effect.
    The EPA intends to issue a final general permit by October 
31 of this year, just a few short months away. Western 
agricultural water users regularly apply aquatic herbicides in 
accordance with FIFRA approved methodologies to keep their 
water delivery systems clear and free from aquatic weeds.
    The use of aquatic herbicides provides the efficient 
delivery of water, avoids flooding, promotes water 
conservation, and helps avoid water quality problems associated 
with other methods of aquatic weed control.
    Working Americans rely upon the use of these products. We 
have several concerns with the pesticide general permit. First, 
the definition of water in the United States is expansively 
included in the Pesticide General Permit beyond what was 
interpreted and established by Congress.
    The PGP does not clearly exempt aquatic weed and algae 
control activates from expensive and duplicative Federal Clean 
Water Act regulations. Multiple opportunities exist for Stacked 
Clean Water Act violations and citizen suits in the PGP, with 
$37,500 per occurrence or day of violation.
    Implications of the Endangered Species Act requirements 
resulting from consultation are also extreme. The consultation 
process with the fishery services has not been completed, and 
we don't know what those requirements will look like in the 
PGP.
    The draft PGP requirements are unrealistic, impractical, 
and burdensome for local governments and small amount profit 
organizations to implement. It is just too much paperwork, too 
much red tape, and services no purpose beyond the requirements 
of FIFRA, which we are fully compliant with.
    The EPA did not properly solicit comments on the PGP. We 
showed up at a public hearing in Boise that was advertised in 
the Federal Register as an ability to give comments, and we 
were not allowed to give public comments at that hearing. We 
were allowed to ask a few questions, but we were not allowed to 
provide testimony.
    There are legal risks to operators associated with the 
likelihood of the EPA and the States meeting the current 
October 31, 2011 deadline. It is not just the EPA. It is also 
the 44 delegated States.
    If that process is not in place, if that permit is not in 
place, what will the regulators do? How will they view the 
ability of folks to continue to treat for mosquitos, to keep 
the canals clear? They will be in violation of the NPDES permit 
requirement.
    We are also very concerned about EPA's process for 
consultation on the use of aquatic herbicides and the ongoing 
process resulting from the different court actions as detailed 
in my written statement.
    Finally, I wanted to highlight that the EPA has shown a 
clear anti-water storage bias, thereby jeopardizing our ability 
to continue to provide sufficient water supplies. Both in 
Region IV and in Region VIII, clearly EPA staff have shown that 
instead of building storage, we first need to demonstrate how 
we can reduce the need for the water in the first place. This 
puts cities and rural communities pitted against one another. 
It is a shortsighted and arbitrary strategy by the EPA.
    Mr. Chairman, it appears that the EPA and other Federal 
agencies are moving in a direction where a heavier regulatory 
hammer will be wielded, and litigious actions will be 
encouraged through the use of citizen suits, and products used 
by American farmers and ranchers in the production of food and 
fiber will be regulated to death.
    While it may be difficult for the EPA and the 
Administration to change their policies, we appreciate your 
attention to these issues, and thank you for your time today.
    [The prepared statement of Mr. Semanko follows:]

 Statement of Norman M. Semanko, Executive Director & General Counsel, 
           Idaho Water Users Association, Inc., Boise, Idaho

    Chairman McClintock, Ranking Member Napolitano, and members of the 
House Subcommittee on Water and Power, my name is Norm Semanko and I am 
the Executive Director and General Counsel of the Idaho Water Users 
Association (IWUA), located in Boise, Idaho. I am also the Chairman of 
the Federal Affairs Committee and Past President of the National Water 
Resources Association, a long-standing member of the Advisory Committee 
for the Family Farm Alliance, and a past member of the Western States 
Water Council. I appreciate the opportunity to provide testimony on the 
important topic of creating abundant water and power supplies and job 
growth by restoring common sense to federal regulations. It is a 
particular pleasure for me to appear before my Congressman, 
Subcommittee member Raul Labrador from Idaho's First Congressional 
District. We appreciate his ongoing dedication and support on issues of 
importance to our membership.
    IWUA is a statewide, non-profit association dedicated to the wise 
and efficient use of our water resources. IWUA has more than 300 
members, including irrigation districts, canal companies, water 
districts, municipalities, hydropower companies, aquaculture interests, 
professional firms and individuals. Our members deliver water to more 
than 2.5 million acres of irrigated farms, subdivisions, parks, 
schoolyards and other lands in Idaho.
    Western water users are becoming increasingly concerned about the 
number of environmental regulations and policies that are currently 
being rewritten or reconsidered by the Obama Administration. In 
particular, recent rulemaking efforts at EPA and the White House 
Council on Environmental Quality carry the risk of real potential harm 
for Western irrigators and the rural communities that they serve.
    These types of federal water resource actions and regulatory 
practices threaten to undermine the economic foundations of rural 
communities in the arid West by making farming and ranching 
increasingly difficult and costly. In the rural West, water is 
critically important to farmers and ranchers and the communities they 
have built over the past century. However, in recent decades, we have 
seen once-reliable water supplies for farmers steadily being diverted 
away to meet new needs. Rural farming and ranching communities are 
being threatened because of increased demand for limited fresh water 
supplies caused by continued population growth, diminishing snow pack, 
increasing water consumption to support domestic energy production, 
continually expanding environmental demands--and additional, burdensome 
requirements imposed by EPA.
    Our concerns with EPA's actions are numerous. Many of them are 
addressed in the testimony of other witnesses. I have focused my 
testimony on issues related to the use of pesticides and water storage, 
as detailed below.
1.  Proposed Regulations and Consultations Regarding the Use of 
        Pesticides Threaten Our Ability to Deliver Water.
Pesticide General Permit (PGP) for Point Discharges to the Waters of 
        the United States from the Application of Pesticides (Draft)
    On June 2, 2010 EPA released its draft National Pollutant Discharge 
Elimination System (NPDES) permit for point source discharges from the 
application of pesticides to waters of the United States. This permit 
is also known as the Pesticide General Permit (PGP). The PGP was 
developed in response to a 2009 decision by the Sixth Circuit Court of 
Appeals (National Cotton Council, et al. v. EPA). The court vacated 
EPA's 2006 rule that said NPDES permits were not required for 
applications of pesticides to U.S. waters. As a result of the Court's 
decision, discharges to waters of the U.S. from the application of 
pesticides will require NPDES permits when the court's mandate takes 
effect. EPA intends to issue a final general permit by October 31, 
2011. Once finalized, the PGP will be implemented in six states, Indian 
Country lands and federal facilities where EPA is the NPDES permitting 
authority, and will be the benchmark for permit issuance in the 44 
delegated states.
    Western agricultural water users regularly apply aquatic 
herbicides, in accordance with FIFRA approved methodologies, to keep 
their water delivery systems clear and free from aquatic weeds. The use 
of aquatic herbicides provides for the efficient delivery of water, 
avoids flooding, promotes water conservation and helps avoid water 
quality problems associated with other methods of aquatic weed control. 
The organizations I represent include members responsible for 
irrigating millions of acres of farmland, as well as residential 
subdivisions, parks, schools, yards and other irrigated lands 
throughout the West. All of these working Americans and the general 
public stand to be directly impacted by regulations proposed by EPA in 
the draft PGP, as outlined further below.
Concern: Definition of ``Waters of the United States''
    One key concern with this draft general permit is that the 
definition of ``Waters of the United States'' used in the PGP is the 
one that existed in Federal Regulations prior to the U.S. Supreme 
Court's Rapanos decision. The decision was made by the Bush 
Administration not to issue a new rule, but instead to issue guidance 
in interpreting Clean Water Act jurisdiction under Rapanos. We have 
compared the December 2, 2008 guidance memo issued by the U.S. Army 
Corps of Engineers and EPA that takes into account the Rapanos decision 
to the current regulations and discovered discrepancies.
    However, as we understand it, the guidance was not prepared in 
accordance with the Administrative Procedures Act and instead merely 
provides guidance to field offices. It therefore does not rise to the 
level of a regulation and technically does not supersede the pre-
existing regulations. However, the guidance is, to our knowledge, the 
only post-Rapanos statement by either EPA or the U.S. Army Corps of 
Engineers on Clean Water Act jurisdictional determinations. 33 CFR 
Sec. Sec. 328.3(a)(1), (a)(5), and (a)(7), and 40 CFR 
Sec. Sec. 230.3(s)(1), (s)(5), and (s)(7) defining ``navigable waters'' 
and ``waters of the United States'' all predate the Supreme Court 
decision in Rapanos and, to the extent they are inconsistent with the 
Rapanos decision, have been effectively voided by that decision. The 
proposed permit thus: (i) uses a regulatory definition that is 
inconsistent with the current judicial interpretation; (ii) 
incorporates language from antiquated definitions; and (iii) 
effectively attempts by administrative action to overturn Supreme Court 
precedent.
    The guidance memo is much more detailed as to what is 
jurisdictional and what is not under Rapanos. We have recommended that 
the section of the draft permit that defines and addresses ``Waters of 
the United States'' be rewritten to provide consistency with the 
December 2, 2008 guidance memo. As was the case during the development 
of the guidance memo, EPA should coordinate with the Corps of Engineers 
in this endeavor.
    The draft definition of ``Waters of the United States'' in the PGP 
opens up the potential for non-navigable ``Waters of the State'' 
enforcement through CWA citizen suits and federal penalties. NPDES 
permits should limit their coverage to federally protected waters of 
the U.S., and not extend federal enforcement (e.g. citizen suits) to 
every pond or other water of the states.
    Our concern about EPA's expansive interpretation of ``Waters of the 
United States'' is further collaborated by the agency's statements that 
H.R. 5088--legislation introduced during the last Congress that would 
have radically expanded jurisdiction under the Clean Water Act--is 
consistent with previous agency interpretations. Through administrative 
fiat, EPA is attempting to expand its jurisdiction beyond what Congress 
has chosen to do.
Concern: The PGP Does Not Clearly Exempt Aquatic Weed and Algae Control 
        Activities from Expensive and Duplicative Federal Clean Water 
        Act Regulations
    The application of aquatic herbicides in canals, ditches, drains 
and other irrigation delivery and drainage facilities is statutorily 
exempt from the definition of ``point source'' under the Clean Water 
Act and therefore does not require an NPDES permit. The PGP fails to 
clearly state that NPDES coverage is not required for these activities. 
EPA appears to be employing the PGP as a vehicle to eliminate or dilute 
the existing statutory point source exemptions.
    Canals, ditches, drains and other irrigation delivery and drainage 
facilities are not uniformly ``waters of the U.S.''. Therefore, the 
application of aquatic herbicides to these facilities does not 
automatically require an NPDES permit. Once again, EPA is using the PGP 
as a vehicle to summarily and inappropriately make these jurisdictional 
determinations.
Concern: Multiple Opportunities for Stacked Clean Water Act Violations 
        and Citizen Suits
    The current draft creates numerous, overlapping opportunities for 
paper violations to be tacked onto a violation associated with a water 
quality criteria exceedance or the observance of an adverse effect on a 
water body use. Such additional violations include the requirement for 
very timely mitigation plus very timely reporting plus updating of the 
pesticide discharge management plan plus update of other records. Each 
of these could be separate violations according to EPA. We have 
suggested that EPA should eliminate such overlapping or stacked 
potential violations
Concern: Implications of Endangered Species Act requirements resulting 
        from consultation
    The current draft has a placeholder for the potential severe NPDES 
permit restrictions that the ongoing consultation with the U.S. Fish 
and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) 
could produce. EPA's economic analysis does not take into account any 
such ESA restrictions. However, we know from the extremely stringent 
requirements for buffers around all Pacific Northwest waters that both 
Services' requirements and the economic consequences thereof can be 
severe. If the Services add significant restrictions to the permit 
prior to its finalization, EPA should conduct a new economic analysis 
and then re-propose the permit for public comment.
Concern: Draft PGP Requirements Are Unrealistic, Impractical and 
        Burdensome for Local Governments and Small, Non-Profit 
        Organizations to Implement
    The measures set forth in the Draft PGP to ``identify the 
problem'', develop ``pesticide discharge management plans'' and provide 
new levels of record keeping and annual reporting are beyond the 
capacity of small government irrigation districts, and small non-profit 
canal company organizations. Irrigation districts and canal companies 
are responsible for irrigation delivery systems that often cover 
hundreds or thousands of square miles. These small government and small 
non-profit organizations do not have the staff or the budget to 
identify all areas with aquatic weed or algae problems, identify all 
target weed species, identify all possible factors contributing to the 
problem, establish past or present densities, or any of the other 
documentation requirements in the Draft PGP. Several of the measures 
set forth in the draft PGP are overly burdensome and, in many cases, 
impractical--if not impossible--to implement.
Concern: EPA Did Not Properly Solicit Public Comment on the PGP
    I have personally witnessed EPA's failure to provide meaningful 
public input on this matter. Relying upon EPA's Federal Register 
notice, my organization--the Idaho Water Users Association--encouraged 
our members to attend the public meeting in Boise and provide oral 
comments. However, at the meeting, EPA staff told meeting attendees 
that comments would not be accepted, but instead would need to be 
submitted in writing afterwards; oral comments were not accepted at 
all. This meeting certainly was not conducted in accordance with the 
notice published in the Federal Register.
Concern: There are Legal Risks to Operators Associated with the 
        Likelihood of EPA and States Meeting the Current October 31, 
        2011 Deadline
    Some significant questions remain surrounding the current October 
31, 2011 deadline. What is EPA's and states' contingency plan if the 
permits aren't operational? How are operators (applicators and 
decision-making organizations) expected to continue their work if their 
protections under the 2006 EPA rule disappear on October 31, 2011? How 
are these organizations expected to plan between now and then? While we 
appreciate EPA and the Obama administration securing a recent extension 
of the stay from the Sixth Circuit Court of Appeals, extending the 
deadline from April 9 to October 31, 2011, this does little to 
alleviate our underlying concerns.
Concern: The Time for Action by Congress is Now
    We are hopeful that a concerted good-faith effort working with EPA 
will result in a streamlined pesticide permitting regulatory process 
that will be efficient, fair and effective to American farmers and 
ranchers, as well as consistent with existing statutory exemptions in 
the Clean Water Act. However, because of our experience with EPA 
earlier on in the public comment process, and the agency's failure to 
defend the 2006 rule or pursue other reasonable alternatives, we have 
concerns about how serious our comments will be received. In addition, 
we are concerned about the possibility of so-called citizen lawsuits by 
activist environmental groups once the PGP is adopted and implemented. 
As a result, we believe the better course--and the necessary one--is 
for Congress to approve legislation to eliminate the double-permitting 
requirement imposed by the Sixth Circuit Court of Appeals' decision.
    We do not support, and believe it would be counterproductive, to 
pursue alternative regulatory or legislative approaches to the problem, 
as suggested by some. The solution is not to provide EPA with more 
regulatory authority under FIFRA or the Clean Water Act. Rather, the 
answer is to eliminate the unnecessary and burdensome double-permitting 
requirement imposed by the Court.
    We applaud the U.S. House of Representatives' approval of H.R. 872, 
the Reducing Regulatory Burdens Act of 2011, on March 31, 2011, by a 
vote of 292-130. This was a significant step in the process of 
clarifying that the additional regulatory requirements of the NPDES 
permitting process are not necessary and that continued use of 
pesticide products pursuant to FIFRA is sufficient. We look forward to 
your Senate counterparts moving forward in a similar fashion so that 
legislation can be signed into law later this year, prior to the 
current October 31 deadline imposed by the Sixth Circuit Court of 
Appeals.
EPA's Failure to Improve Implementation of the Endangered Species Act
    The Endangered Species Act (ESA) consultation process is broken. 
EPA and the National Oceanic and Atmospheric Administration (NOAA) have 
been required by a federal court to consult regarding how the pesticide 
registration process may affect salmon in the Pacific Northwest. The 
current process is not based on the ``best available data.'' It takes 
too long, excludes input from affected stakeholders, and results in 
unneeded restrictions on pesticide use which will be harmful to food 
production while failing to help salmon. In Washington State, 
monitoring data shows that salmon are already being protected by 
current labeling laws.
    Congress recognized the need to include agricultural producers in 
the implementation of the ESA when it wrote Section 1010 in the 1988 
Amendments to the ESA. [Pub. L. No. 100-478, 102 Stat. 2306, Section 
1010 (1988); codified as a note to 7 U.S.C.]. The intent of Section 
1010 is to minimize harm to agricultural producers. The Conference 
Report states:
    Agriculture is a major part of the U.S. economy and provides 
nutritional sustenance for our population and exports abroad. . .. The 
Conferees, therefore, anticipate that. . .[the Federal agencies shall] 
implement the Endangered Species Act in a way that protects endangered 
and threatened species while minimizing, where possible, impacts on 
production of agricultural foods and fiber commodities. [Conference 
Rpt. at 23-24 (Sept. 16, 1988).]
    In 2005, when EPA announced changes to the Endangered Species 
Protection Program [ESPP; 70 Fed. Reg. 66392, 66400 (Nov. 2, 2005)], it 
acknowledged that Section 1010 ``provided a clear sense that Congress 
desires that EPA should fulfill its obligation to conserve listed 
species, while at the same time considering the needs of agriculture 
and other pesticide users.''
    EPA committed at that time to provide an opportunity for input at 
three points in an ESA assessment:
          Prior to making a ``may affect'' determination
          In identifying potential mitigation options, if 
        necessary; and
          Prior to issuance of a Biological Opinion to EPA by 
        the Services.
    Despite a 20-plus year old statute and a 2005 commitment by EPA to 
include agricultural producers, pesticide applicators, and other end 
users in the effects determination and consultation processes, EPA has 
yet to establish procedures to do so. Last year, a coalition of Western 
grower organizations was forced to file a petition with the court 
requesting EPA take immediate action to establish clear procedures for 
EPA's pesticide effects determinations and subsequent actions 
consistent with Section 1010 of the 1988 amendments to the ESA.
    Failure to correct a process resulting in unnecessary restrictions 
without any indication that salmon will benefit puts producers along 
the West coast at a competitive disadvantage. The magnitude of the 
damage could be severe enough to drive fruit, berry, citrus and 
vegetable growers to foreign countries, costing both jobs and exports.
    An additional problem with the consultation process, very frankly, 
is that the ``federal family'' is a dysfunctional family--particularly 
EPA, NOAA and the U.S. Fish and Wildlife Service. The federal agencies' 
inability to coordinate--let alone agree--on critical aspects of the 
consultation process and resolution of important issues has adversely 
impacted agriculture and irrigators in terms of cost and time in 
meeting the requirements of the ESA.
    We welcome continued Congressional oversight in this area in the 
days to come.
2.  EPA Has Shown a Clear Anti-Water Storage Bias, Thereby Jeopardizing 
        Our Ability to Provide Sufficient Water Supplies.
    One key concern voiced by water users relates to administrative 
policy making occurring within EPA that will make it even tougher to 
accomplish what is already a daunting challenge: the obvious need to 
develop new water supplies to meet growing water demands and to adapt 
to, or mitigate for, the impacts on water supply due to climate change. 
For example--EPA Region 4 (which covers the Southeastern U.S.)--is 
implementing new guidelines that focus on proposals calling for 
additional storage capacity due to projected future demands. These 
guidelines were developed to inform local governments and water 
utilities of the actions EPA expects them to take ``in order to 
eliminate or minimize the need for additional capacity before 
consideration of a water supply reservoir project on a stream or 
river.'' EPA will also use these guidelines to evaluate water demand 
projections for new or significantly increased public surface water 
withdrawals or public ground water supply wells which are being 
reviewed through the National Environmental Policy Act or EPA programs.
    The Clean Water Act permit process requires a clearly stated 
project purpose, which for water supply reservoirs includes a projected 
demand analysis to support additional water capacity needs, and an 
analysis of alternatives. Before EPA considers a water supply reservoir 
as an alternative to address the need for additional water capacity, 
the water utility must take actions to ensure that, to the maximum 
extent practicable, they are implementing ``sustainable'' water 
management practices, which consist primarily of water use efficiency 
measures. According to EPA, these measures ``are designed to help an 
applicant eliminate the need for, or reduce the impacts to aquatic 
resources from future water facility expansions including the 
construction of water supply reservoirs.''
    While these guidelines have been proposed for Region 4, and we 
don't yet know if similar standards will be proposed for the Western 
U.S., it is troubling that EPA is so blatantly biased against 
structural solutions to water challenges. EPA is already one of the 
more obstructionist agencies when it comes to developing new storage 
projects, something Colorado interests recently learned. On August 9, 
2010, then-Colorado Governor Bill Ritter sent a letter to EPA 
Administrator Lisa Jackson describing the cooperative/collaborative 
efforts regarding the Chatfield Reservoir Reallocation Project, which 
involved numerous interests representing municipal, environmental and 
agricultural entities and would result in up to 20,600 acre-feet of 
additional storage space for beneficial uses in the Denver metro area. 
Although the U.S. Army Corps of Engineers supports the proposed 
reallocation plan, EPA Region 8 staff in June of 2010 stated that they 
would deny it, and recommended that the ultimate decision be elevated 
to higher levels in Washington, D.C.
        ``I am greatly concerned that a disagreement between two 
        federal agencies could result in denial of a project so 
        important to Colorado and fifteen of our communities,'' Gov. 
        Ritter wrote Jackson. The Governor also asked that EPA proceed 
        with ``a thoughtful and transparent process that does not 
        prejudge a project but instead balances important civic and 
        environmental needs.''
    This should never occur when all of the stakeholder interests have 
agreed on a workable solution for all parties.
    Unfortunately, based on the Region 4 guidelines and the behavior of 
Region 8 staff, it appears that some in EPA clearly have anti-storage 
biases and are not afraid to insert those biases into critical federal 
decision-making processes. This is reckless, arbitrary and short-
sighted. Without new sources of water, increasing urban and 
environmental demands threaten to deplete existing agricultural 
supplies and seriously threaten the future of Western irrigated 
agriculture.
    The often slow and cumbersome federal regulatory process is a major 
obstacle to realization of projects and actions that could enhance 
Western water supplies. We must continue to work with federal agencies 
and other interested parties to build a consensus for improving the 
regulatory process, instead of using administrative channels that 
create new obstacles.
Conclusion
    Mr. Chairman, it appears that EPA and other federal agencies are 
moving in a direction where a heavier regulatory hammer will be 
wielded, litigious actions will be encouraged through the use of 
``citizen suits'', and products used by American farmers and ranchers 
in the production of food and fiber will be foremost in the sights of 
federal regulators. Important water management and supply tools like 
pesticides and water storage have certainly been put at risk.
    American family farmers and ranchers for generations have grown 
food and fiber for the world, and we will have to become more 
innovative than ever before to meet this critical challenge. That 
innovation must be encouraged rather than stifled with new federal 
regulations and uncertainty. Unfortunately, many existing and proposed 
federal policies on water issues make it more difficult for farmers in 
an arena where agricultural values are at a disadvantage to federal 
ecological and environmental priorities. Right now, it seems that water 
policies being developed at EPA and the White House Council on 
Environmental Quality are being considered separately from foreign and 
domestic agricultural goals. Many of these administrative changes are 
drawing praise from environmental organizations that have been 
advocating for them for some time, but ultimately the huge negative 
impacts of such destructive policies will be aimed at the heart of the 
economy in rural America.
    We can only hope that the Obama Administration will give equal 
consideration to the concerns of agricultural organizations. We welcome 
your leadership to help make that possible.
    While it may be difficult to get EPA and other Administration 
agency policy makers to change the approach they are taking, we are 
pleased that this Congressional hearing is being provided and that you 
are paying attention. We look forward to working with you and other 
Members of Congress towards this end.
    Thank you for the opportunity to share this testimony with you 
today.
                                 ______
                                 
    Mr. McClintock. Thank you for your testimony. At this 
point, we will begin with questions of the witnesses. To allow 
all of our members to participate, and to ensure that we can 
hear from everyone today, we will be limiting Members to five 
minutes for their questions. But if there are additional 
questions, we will continue to a second round, and I will begin 
with five minutes, and begin with Mr. Keppen.
    Your testimony states that water supply restrictions 
benefit fish, quote, ``conclusively demonstrated that these 
restrictions have done little to prevent the fisheries decline 
in the Delta.'' Yet, Mr. Pool in his testimony suggests 
otherwise. How did you come up with that conclusion, and what 
are your observations?
    Mr. Keppen. Well, primarily based on my review of the 
National Academy of Sciences report that was done, and also 
some other reports that were done. In 2010, the Academy put out 
a report called Scientific Assessment of Alternatives to 
Reducing Water Management Effects on Threatened and Endangered 
Species in California's South Delta.
    In that report, there are flat out statements that suggest 
that there are other things than the pumps that are affecting 
the fish, and I will just stick to the facts. This comes out of 
page 33 of the study.
    It says that no scientific studies have demonstrated that 
pumping in the South Delta is the most important or the only 
factor accounting for the Delta's smolt population decline.
    Therefore, the multiple other stressors that are affecting 
the fish in the Delta environment, as well as in the other 
environments they occupy during their lives must be considered, 
as well as their comparative importance with respect to the 
effects of exporter pumping.
    And the report goes on to suggest a holistic approach to 
managing the ecology of the fish in the Delta will be required 
if species declines are to be reversed. It is very similar to 
the findings that the National Academy had in Klamath in 2003.
    Mr. McClintock. This is also similar to the National Marine 
Fisheries Service Southwest Science Center report to the 
Pacific Fisheries Management Council, where the NMFS scientist, 
Steve Lindley, concluded that the primary reason for the 
decline of the fall run was poor ocean conditions.
    I would also note that the claim that 92 percent of the 
salmon smolt died because they were lost in the river or pulled 
into the Central Delta when the pumps were operating at maximum 
capacity does not mean that the pumps caused 92 percent 
mortality.
    Most of the mortality, I am told, occurs in the main stem 
of the Sacramento River, and not at the pumps.
    Mr. Keppen. Good points, and there is another study, too, 
that I dug up on the flight out here. It is Bruce McFarland's, 
who did a report in 2008 to the Delta Stewardship Council, and 
he said that that year, all up and down the coast, the salmon 
population suffered, which again suggests that it might have 
been ocean conditions.
    Mr. McClintock. And I think I would also want to note for 
the record that the Sacramento hatchery fall chinook fish 
output increased dramatically in 2008, and in 2006, for 
example, the release was 3 million, and in 2008, it went up to 
8.5 million, and current shifts and dramatically increased 
hatchery releases coincided with increased salmon populations.
    Mr. Keppen, how would new water storage help overcome the 
negative impacts of water regulation?
    Mr. Keppen. Well, we always use a term, I guess, in our 
organization, and my board members like to say this term, that 
in the West right now, we have probably four competing sectors 
for water.
    We have agriculture, urban growth, the environment and 
ecology, and then power. Those are kind of the big four 
demands. And over the last several decades that pie has pretty 
much stated the same, the same size.
    I am talking about the water supply that is available, and 
we have not developed a lot of new infrastructure relative to 
storing water. However, what has happened particularly with the 
environmental demands that we now have, because society places 
greater value on that now than it did perhaps 40 years ago, we 
have a bigger slice of that pie going to the environment 
primarily.
    So storage makes the pie bigger, and I think that the new 
demands that we are seeing I don't think come from agriculture 
in the west. It is really coming from development, power, and 
the environment.
    Our guys are just saying let us have the water that we 
originally were provided when these projects were built, and 
thus create storage to meet some of these new demands.
    Mr. McClintock. Mr. Noble, the same question, additional 
water storage, good for the environment?
    Mr. Noble. Yes, Mr. Chairman, I believe it is. The 
additional water storage is good for the environment, but we 
have to be careful. All too often, we place the environment 
above human needs, and I believe they can be reconciled.
    But additional water storage is something that needs to be 
looked to in the future, and I find in the areas that I deal 
with that there is a lot more talk about providing that now.
    Mr. McClintock. Mr. Keppen, very briefly, what are the 
impediments to water storage in California these days?
    Mr. Keppen. Regulatory impediments. I think it is the way 
that the Endangered Species Act, and NEPA, and the Clean Water 
Act, are implemented. It is just the overlapping sense of 
regulations that you have.
    I would also say that it comes down to litigation. 
Environmental laws provide all kinds of opportunities for 
opponents to projects to stop all kinds of citizens 
supervision, and that sort of thing.
    And then finally I just think leadership. I think some 
folks are just concerned that if they stand up for storage that 
they are going to get blasted by some environmental community 
and the urban media.
    In fact, there are actually surveys out there that show 
that when average Americans are asked about what kinds of 
things need to be done to deal with these challenges, storage 
is way up there. Taking water away from farmers and giving it 
to cities is way down there.
    Mr. McClintock. Thank you very much. My time is expired. I 
will now yield to the Ranking Member, Ms. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chair, and this is my 
thirteenth year on this Subcommittee, and we have had great 
discussions, and lengthy discussions, about some of the 
impacts, especially on the Delta, and the fish, and the pumps, 
and all that good stuff.
    So in certain areas it is redundant. We have asked for 
collaboration, and we have asked for all of this that we keep 
hearing, but Mr. Keppen, in your testimony, you mentioned that 
the agencies should use the best available developing 
regulations.
    Would you agree that the agencies should use the best 
available science and developing regulations even if the use of 
those science results, those scientific results, result in 
reduced water deliveries to some of the farmers?
    Mr. Keppen. Well, definitely we support the use of the best 
available science, and I think again how do you define that. In 
my experience the agencies often times are given deference, and 
their science kind of trumps everybody else's science.
    We just want to make sure that we have a place at the table 
so that our science can be considered along with theirs, and 
with the same weight.
    Mrs. Napolitano. That is where we should view the 
partnerships, and I agree with you on being able to work 
together. But are you aware that the National Academy of 
Sciences determined that most of the restrictions in the Bay-
Delta biological opinions were scientifically justified?
    Mr. Keppen. I am aware of that.
    Mrs. Napolitano. All right. That is all. Thank you.
    Mr. Keppen. Yes.
    Mrs. Napolitano. Thank you. My time is running low. I would 
like to introduce a couple of things into the record:
      The California 2006 Causes of Impairment for 
California Waters, prepared by the USEPA Office of Water, 
Number 1 on the list is Pesticides.
      The California Waters Impaired By Pesticides 
Report, Year 2006, prepared by USEPA Office of Water. It lists 
all the water bodies in California that are affected.
      The National Summary Causes of Impairment. It 
says for rivers and streams that pesticides again are number 16 
on that list.
      Specific Causes of Impairment that makes up the 
National Pesticides cost of impairment and growth threatened 
for impairment of rivers and streams. Third is pesticides. 
Those I would like to have entered into the record, Mr. Chair.
    Mr. McClintock. Without objection.
    [NOTE: The documents submitted for the record have been 
retained in the Committee's official files.]
    Mrs. Napolitano. And to Mr. Semanko, you mentioned in your 
testimony that the EPA has taken an anti-storage position, 
citing the Chatfield Reservoir Reallocation Project. Were you 
aware that last October the EPA sent a letter to the Corps 
endorsing the Corps analysis in its proposal to permit the 
project?
    And I would like to introduce into the record a letter from 
Carol Ruskin, Deputy Regional Administrator, dated October 6, 
from the EPA, reversing the EPA statements made on September 
7th.
    Mr. McClintock. Without objection.
    [A letter from Carol Rushin, Deputy Regional Administrator, 
U.S. Environmental Protection Agency, to the U.S. Army Corps of 
Engineers submitted for the record by Mrs. Napolitano follows:]
[GRAPHIC] [TIFF OMITTED] 65599.010

    .epsMr. Semanko. I believe there was a question. Thank you. 
No, I was not aware of that, and we will pass that information 
along to our members in California.
    Mrs. Napolitano. We would be glad to furnish you a copy of 
this if you don't mind. That way they will have that letter.
    Mr. Semanko. Thank you.
    Mrs. Napolitano. Because that kind of contradicts your 
statement, because they did reverse it according to that 
letter.
    Mr. Semanko. Thank you. We are still concerned about the 
bias, but thank you very much for the update. We appreciate 
that.
    Mrs. Napolitano. Thank you. Mr. Pool, you have shown us a 
list of 50 salmon related businesses that have completely shut 
down since 2008. Do you expect these businesses and the jobs 
that they have created to be permanently lost, and if they are 
permanently loss, what other forms of employment do these 
people are likely to turn to?
    We hear a lot about farming losing a lot of farmhands and 
farms being fallowed, and all of that. What about the 
fishermen?
    Mr. Pool. The 50 some-odd businesses on that list, it is 
only a partial list. When people go out of business, it is hard 
to identify them, but they are gone permanently. They have lost 
their equity in their businesses.
    One of them that I cite, two ladies lost their business, 
and they were very profitable, and the salmon closure came, and 
a year-and-a-half later, they lost their business, they lost 
their boat, and they lost their house, and they lost their life 
savings, and they left town on a Greyhound bus.
    Mrs. Napolitano. Mr. Pool, let me cut you because I only 
have a few more seconds left. Was it just in California or were 
there other places affected?
    Mr. Pool. No, about 50 percent of the impact occurs in the 
State of Oregon from the Central Valley Delta.
    Mrs. Napolitano. So it isn't just California?
    Mr. Pool. It is not.
    Mrs. Napolitano. How about Washington and Oregon?
    Mr. Pool. Some. I would say Southern Oregon mainly, and 
below the Columbia River, where the Central Valley fish 
migrate, and the impacts there are just as serious as along the 
California coast.
    Mrs. Napolitano. Thank you. Mr. Chair, I hear a lot about 
the use of pesticides, and as I sat in the State House, I 
remember going through the list of pesticides being used.
    And I know that they are used for vector control, for 
termite control, and for all those things. But those are very 
regulated by the States. So to me it makes no sense to equate 
them to the pesticides that are used in farms and other 
agricultural products. Thank you, Mr. Chair.
    Mr. McClintock. Next is Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman, and I appreciate our 
panel being here. Mr. Keppen, I was kind of interested. You 
started the closing of one question about the Academy of 
Sciences, and when you said but, and so go ahead and continue.
    Mr. Keppen. Thanks for that opportunity. Yes, what I was 
going to say is that the National Academy report found general 
conceptual support for aspects of the biological opinions, 
meaning that the smolt and salmon opinions.
    But it also criticized specific management measures as not 
being well supported. That was the rest of my sentence.
    Mr. Tipton. Thank you so much. Mr. Scholl, I was interested 
during some of your commentary where you had mentioned about a 
culture of collaboration and gave an example. When the EPA went 
through did they issue any fines?
    Mr. Scholl. I am not aware of any specific fines being 
levied in that case. I think the main point that we were trying 
to make is that having a regulation is one thing, but then what 
you do to try and get compliance with those regulations is 
something that certainly requires a lot of work to be done.
    Farmers don't want to see bad stuff get into the water. 
They care about the land, and trying to build upon their 
desires to run clean operations, and to be able to pass their 
farms on to future generations, is something that I think that 
we can build upon, and create a much more healthy environment 
on which to really solve environmental issues.
    Mr. Tipton. Great. Thank you. And, Mr. Noble, I was just a 
little interested about when you were talking about in regards 
to irrigation canals being related to levees down south, and 
farmers and ranchers being required to take out flood 
insurance.
    What does that add in terms of costs of operations and the 
rest?
    Mr. Noble. Congressman, I am not exactly sure what the cost 
of the flood insurance would be, but it does add a cost, and 
that was one of the recommendations that was contained in the 
report of 2009 by the NCLS committee, as well as when they 
equate them under the proposals, and then farmers would have to 
provide those types of coverages in areas that really have no 
risk of flooding, except for the failure of an irrigation 
canal.
    Mr. Tipton. Right. Are farmers and ranchers able to pass 
those costs on?
    Mr. Noble. Not really.
    Mr. Tipton. Not really? So that leads us back to Mr. 
Keppen. When you were talking about that six percent of our 
farmers and ranchers are under the age of 40. Is that a correct 
representation?
    Mr. Keppen. Under 35.
    Mr. Tipton. So we have an aging farm population, and to 
quote someone else who is saying that we are producing on less 
land, with less water, with fewer farmers, are we literally 
starting to drive farmers out of business in this country?
    Mr. Keppen. Well, I am seeing it. Mark Ricks, as I 
mentioned in my testimony, one of my directors from Idaho very 
passionately said the same thing, and a lot of our members are 
seeing that.
    I travel throughout the west, and going to irrigation 
district meetings, and water conferences all the time, and 
don't see to many folks under 40 at those meetings, and there 
are other factors, but the regulatory climate is definitely an 
issue.
    Where I live in Klamath Falls, certainly parents are 
telling their kids that you don't even want to go into farming.
    Mr. Tipton. And on a nationwide basis, we are seeing 
statistics that are showing that we are spending $1.750 billion 
a year in regulatory costs in this country. It is staggering.
    And we all know that there needs to be some sort of 
regulations to be able to manage things. We heard great 
testimony to that point. What are the regulatory costs? Do you 
have some overall regulatory costs? What type of burdens is it 
adding to driving more farmers out of their jobs?
    Mr. Keppen. I think that it would be very useful to get 
such a study done kind of nationwide, but what I have seen just 
in the community that I moved to Klamath Falls in 2001 when the 
farmers got their water supply shut off at the beginning of the 
irrigation season for the first time in 90 some years.
    And there are so many costs. I have actually provided 
testimony to this Subcommittee on impacts to the community. But 
in the Central Valley, it was tens of thousands of jobs, and 
hundreds of thousands of acres that went fallow.
    It has a ripple effect through the community that affects 
businesses, and that affects fertilizer, and implement dealers, 
and all those sort of things.
    It has a horrible dynamic on the community, just as far as 
relationships go, because some people are able to take 
advantage of programs and get assistance, and others are not. 
You get a have versus a have not mentality that can really tear 
up a community.
    Mr. Tipton. You bet. You know, we were talking a little bit 
about pesticide application, and I found coming from a farm and 
ranch community that they are pretty good stewards, and they 
all read, and they typically follow directions well.
    Are you seeing an overreach by the EPA clamping down and 
hurting our farmers and ranchers ability to be able to earn a 
living?
    Mr. Keppen. Is that directed at me?
    Mr. Tipton. Anybody that would like to take a short.
    Mr. McClintock. A brief shot.
    Mr. Semanko. I will take a shot at that. Thank you, 
Congressman. The issue here really is not whether the EPA is 
clamping down or not. There is a very comprehensive program 
under the Federal Insecticide, Fungicide, and Rodenticide Act, 
that requires that these products be tested against the 
environment, and make sure that they are not having an adverse 
impact on the environment. Then they are certified by the EPA 
for general sale and use out in the community, and our folks 
have used these products for any number of years to assist in 
the delivery of water.
    Mr. McClintock. I am going to interject. That is a brief 
answer. Mr. Garamendi.
    Mr. Garamendi. Thank you, Mr. Chairman. I have been in 
agriculture my entire life, and I have yet to have a farmer or 
a rancher not complain about everything. It is the nature of 
the beast.
    When they are complaining the loudest, it is usually when 
they are doing the best. When they shut up and don't complaint, 
then the bank is probably about to knock on their door.
    Enormous progress has been made over the years that I have 
been involved in agriculture. We have seen regulations in the 
cattle industry that have, in fact, been difficult. I endure 
those myself because I am a cattle rancher. But the end result 
has been a much better and more stable cattle industry, all the 
way from animal health to the regulations about the quality of 
the supply. You can scream and yell about quality, but you get 
bad meat on the market, and it is a serious problem for the 
cattle industry.
    One recall and serious. You want to shut down Japan, and do 
you want to shut down Korea? Have a bad meat issue. It will 
happen. Regulation is not bad. It is necessary to protect the 
industry as a whole.
    With regard to the report that you cited, sir, about the 
National Academy of Science, I think you are talking about a 
report that was in fact not peer reviewed, and was put aside as 
being not completely peer reviewed, and based upon a limited 
study.
    In fact, there are many, many stressors in the Delta. We 
understand that. And certainly pumping is one of the stressors. 
So is the ammonia released from the Sacramento Municipal 
Sanitation Project.
    We understand that. Also, from my own operation, I run a 
ranch or a farm in the Delta and, fortunately, the EPA 
regulations, the clean water regulations, require that all of 
us who operate in the Delta, and in the streams flowing into 
the Delta, we have gotten together, and we are monitoring our 
water. And when somebody is out of line, we find out who it is, 
and we go after that person, and require them to clean up their 
act. All of this is good for Jimmy Costa downstream, who wants 
to pump.
    But the reality is that the pumping is also a problem. We 
need to deal with all of these things, and to simply say that 
regulation is the problem is ignoring the fact that the problem 
is us. It is all of us. It is the demand for water in the 
urban, and it is the demand for water in the agriculture, and 
it is the demand for water for the environment, and it is those 
of us who are polluting the water. And we do it.
    We need the regulatory environment to set up the framework 
in place in dealing with the multiple interests. So, a 
committee hearing such as this, and for whatever its purpose 
is, OK, let's hear about the regulations. Fine. But, 
simultaneously, we need to understand that the regulatory 
environment is necessary because there are a whole heck of a 
lot more of us on this planet today than there were 50, 60, or 
100 years ago. We are going to have to live together and the 
regulatory environment allows us to do that.
    Now, with regard to the salmon, and let's focus directly on 
those. There was a crash, was there not? And it was directly 
associated with the pumping due to the dramatic increase in 
pumping. Is that what you----
    Mr. Pool. Are you directing that to me?
    Mr. Garamendi. I am.
    Mr. Pool. Well, yes. According to the study after study, 
those fish are being lost, and they have this acoustical 
tracking now where they can see exactly where fish is lost. And 
even in the upper river, the fish are being lost because of the 
pumping and the movement of the water, and the lifecycle of the 
salmon.
    Mr. Garamendi. In your opinion, and as someone who has been 
involved in this forever, is the solution more hatcheries?
    Mr. Pool. The solution--unfortunately, hatcheries are 
mitigating for the dams, but hatchery fish are not--they are 
inferior to wild fish. One of our problems in California is 
that our hatchery fish are increasing, and the wild fish are 
decreasing.
    We do not want to stop the hatcheries. We rely on that for 
business, but we have to improve the wild fish populations.
    Mr. Garamendi. OK. There are a whole series of questions 
that we ought to get into on hatcheries, and we ought to deal 
with it. You have laid out the foundation for a much further, 
and a much more detailed discussion on that.
    I am going to let it go at that. We are going to go round 
and round on this, I suspect, for some time, but we have to 
look at this in a very holistic and in a very comprehensive 
way.
    The regulation in and of itself is not the--is part of the 
overall solution, as well as part of the overall problem. There 
are duplications and there are foolish regulations along the 
way.
    Rather than just generally trash regulations, I appreciate 
your lists that you put together on the two pages. I would like 
more detail. Most of that deals with the potential problem, and 
not that the problem has been actually created. Thank you, Mr. 
Chairman.
    Mr. McClintock. Thank you. Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman. Norm, according to 
the statement just made, regulation is not bad. It is necessary 
to protect industry. I don't think you disagree with that, do 
you?
    Mr. Semanko. Congressman, no. We comply with FIFRA, and we 
understand the purpose for it, and we want to make sure that we 
can deliver clear, clean water to our folks.
    Mr. Labrador. So what exactly are you trying to say, 
because there seems to be an argument that is being made on the 
other side that we are completely against all regulations.
    Mr. Semanko. Well, Congressman, this issue arises from 
litigation, and it is what I call gamesmanship by certain 
national environmental groups who enjoy filing these lawsuits, 
and frankly recouping attorneys fees.
    Under FIFRA, there is no citizen suit provision. If someone 
violates the label, and does not do what they are supposed to 
do, and jeopardizes the environment, and kills fish, that is 
clearly a violation of law, and something that the EPA can 
enforce.
    But there is no hook under the Clean Water Act, and through 
years, and in fact decades of litigation, environmental groups 
have found the hook through the argument that these products 
are pollutants when they break down into the water, and 
therefore require a discharge permit under the Clean Water Act. 
So this entire regulatory standard that was not meant for this 
context is applied over the top of the regulatory context that 
was required.
    It is just another piece of paper. It is another permit. It 
brings in a whole another statute, and importantly for the 
environmental groups, it brings in the citizen suit provision.
    So, for example, if you under the regulations fail to do 
something that is in the label, now you can be accorded a 
$37,500 a day or occurrence Clean Water Act violation, and 
attorneys fees go to the citizen suit, and the folks that bring 
the citizen suit.
    So we are saying avoid the duplicative regulations. We 
understand FIFRA, and we agree with FIFRA. We agree with the 
registration, and re-registration processes, because they 
protect the environment.
    Our folks understand them, and they are trained on those, 
but this NPDES overlay on top of that. When you are talking 
about something that increases by five times the current 
regulated universe under NPDES, which is what this would do, 
increase what we have been doing over the last 40 years by five 
times. That is not what was intended, and so we appreciate 
Congress, and the House in particular, helping to clarify that.
    Mr. Labrador. So your concern is with taking advantage or 
overuse of regulations, and misuse of the regulatory process; 
is that correct?
    Mr. Semanko. Congressman, yes, and frankly, the misuse of 
the EPA's resources. The EPA has a lot of work to do out there 
under the NPDES permit program, and other programs, and doing 
this kind of paperwork exercise within an NPDES general permit, 
when the Office of Pesticides is already fully regulating that, 
the Office of Water that is over NPDES, has other things to do, 
and it is just inconceivable that that much regulation, and 
that much resources is going to be dedicated.
    So equally we are concerned about the wise use of precious 
taxpayer dollars that you all allocate.
    Mr. Labrador. OK. In Idaho, there are numerous Federal 
agencies that are responsible for the implementation of the 
Endangered Species Act, like the Bureau of Reclamation, and the 
United States Fish and Wildlife Services.
    How does the coordination or lack thereof of Federal 
agencies impact water users?
    Mr. Semanko. Well, Congressman, it is incredibly important. 
The Federal agencies sometimes look like a dysfunctional family 
in their inability to communicate and get on the same page on 
these regulations, and when they are frozen, and certainly when 
they don't know how to act, it boxes our folks out, in terms of 
getting the permissions, getting the permits granted, and 
getting the reasonable terms and conditions granted that allow 
us to proceed and to move forward.
    So at the end of the day, the lack of decision, and the 
delay in process, creates uncertainty amongst our folks, and an 
inability to operate and move forward. That is a worst case 
scenario.
    And when they operate together, and we are able to work 
with them, and when we get the biological opinion issued, as we 
did in the walk of the Nez Perce Water Rights Settlement, and 
the biological opinion that resulted from that, then things 
work well, and we all understand what needs to be done to 
protect the fish, and to deliver the water.
    Mr. Labrador. OK. Now, you mentioned the regulatory bias 
against water storage at EPA regional offices. Now, when water 
storage is taken off the table, does that place pressure on 
municipalities to find water from other sources, like the 
purchase of agricultural water rights and the fallowing up of 
farmland?
    Mr. Semanko. Congressman, absolutely, as Mr. Keppen said 
earlier, the pie is only so big. There is enough for 
irrigation, and if there need to be additional water supplies 
for other purposes, we need to look at building additional 
storage.
    Otherwise, it pits one interest against the other in this 
scarce resource, and once you get through NEPA, and ASA, and 
the Clean Water Act, the water is available, and it meets those 
requirements, there ought to be discussion about additional 
storage.
    I can't believe that in the past that if we had made these 
kinds of limitations that we would be where we are in the west 
with water development.
    Mr. Labrador. Thank you.
    Mr. McClintock. Mr. Grijalva.
    Mr. Grijalva. Thank you very much, Mr. Chairman. Mr. Pool, 
if I may, without the protections for salmon, will we see 
fishing communities also dry up? And what will this do to the 
opportunities that remain for a new generation of fishermen? A 
younger generation? We hear one side of it, but I want to ask 
you about this particular side.
    Mr. Pool. Sure. We are already seeing the opportunities dry 
up. The fishing season or the salmon fishing has essentially 
been shut down for three years. Thousands of boats have been 
abandoned, and they are in yards now being disposed of because 
they couldn't pay their fees.
    Communities from Morro Bay through Crescent City in 
California, and on into Oregon, are hurting very badly right 
now, and this can be recovered. Salmon can be recovered, and 
our organizations have outlined policies to the State and 
Federal Governments on what has to happen for them to be 
recovered. These communities can recover, but we have a big job 
ahead of us.
    Mr. Grijalva. Thank you. Mr. Orme, as I understand it, 
negotiations are ongoing, or are underway for the Navajo 
Generating Station with EPA, and can you maybe outline for the 
Committee what the owners are proactively doing at this point 
to improve air quality outside of the EPA BART process that is 
going on right now?
    Mr. Orme. Yes, Congressman. The owners are adopting the low 
NOx alternative, and implementing that before being 
required to do it by the EPA or whatever that the BART finally 
requires.
    The stakeholder group that has been working to come up with 
a recommendation to the EPA, which the EPA can accept or 
reject, would provide a situation where the low NOx 
option, which we favor, would be implemented initially, and 
then stricter standards would be adopted sometime in the 
future, which would allow a transition of time to those 
stricter admission standards, which could include the SCR 
technology, or something as effective, but maybe less costly.
    That appears to be the way the stakeholder process is 
moving. That will ultimately be a recommendation to the EPA, 
which they can reject or not.
    Mr. Grijalva. So at this point, if I may, at this point the 
negotiations are relative to the low NOx. It is an 
interim transition step that is--I am assuming the stakeholders 
will be recommending to the EPA as an interim step toward the 
full implementation of the regulations as time goes forth?
    And the timeline on that would be what? Do you know, from 
this initial transition step, to what year?
    Mr. Orme. The timeline has been discussed from the stricter 
admission standards anywhere from 2020 to 2030 time period. But 
I want to emphasize the point that the low NOx 
burners are being put in place now without any requirement by 
the EPA yet.
    The owners have just done that on their own accord to move 
forward with that.
    Mr. Grijalva. With the intention of making that 
installation part of the transition period?
    Mr. Orme. Correct.
    Mr. Grijalva. OK. Thank you. I don't have any further 
questions. Thank you, Mr. Chairman.
    Mr. McClintock. Thank you. Mr. Gosar.
    Dr. Gosar. Mr. Pool, just as a quick followup to the Member 
on the other side, fish hatcheries have had a big impact, 
particularly if I am not mistaken, in our war against Whirling 
Disease, has it not?
    Mr. Pool. Oh, fish hatcheries are the life blood of a lot 
of the industry. They take care of the losses of the fish for 
the dams. There is quite a movement to analyze. There has been 
a lot learned about fish, and fish hatcheries, and Whirling 
Disease, and a lot of other things.
    There is a big effort to improve hatchery quality, and to 
more closely match the wild fish.
    Dr. Gosar. I understand, but I wanted to make sure that got 
in there. I would like to focus my next questions on the 
regulatory aspect of NGS, Mr. Orme. And for Arizona, this is 
extremely--in the southwest, it is extremely important, not 
only that it has a thousand jobs that are on the line, and most 
of them Native American. But this has a severe consequence to a 
number of situations in Arizona.
    Can you express if we lost NGS what kind of impact that 
would have on the cost of irrigation, or water for irrigation 
down the southern part of the State, and the impact if the 
costs went up significantly?
    Mr. Orme. Yes, Congressman. If we were to lose NGS, and if 
the owners had to make the decision to shutter the plant, the 
Central Arizona Project estimates that alternative power supply 
to move CAP water would run in the range of 60 to 300 percent 
more than what we are paying right now.
    It would be completely and totally unaffordable for 
agriculture. Agriculture, which is over 50 percent of the use 
of CAP water now, would go off-line the minute that occurred.
    That would obviously cost many jobs, and be very harmful to 
the economy, and not only to the non-Indian areas of Central 
Arizona, but also the reservation areas that depend on CAP 
water for irrigation water as well, because they are required 
to pay the costs of energy just like the non-Indian agriculture 
users are.
    Dr. Gosar. Well, I think this is a fabulous story. I look 
particularly at the southern part of the State of Arizona. For 
example, the Teddy Roosevelt Dam. A lot of the landowners, and 
ranchers, and farmers, gave up their water just to get that dam 
put into place.
    The farmers, particularly in the southern part of the 
district, did that as well did they not with CAP water, and 
giving up some of those entitlements or water rights, to 
actually have some water?
    Dr. Gosar. Well, what we recently did in the 2004 Indian 
Water Rights Settlement is that non-Indian agricultural water 
users, the irrigation districts have held the long term 
contracts of CAP water, and gave up those long term contracts 
so the water would be available for reallocation, mostly for 
Indian settlements, but also a fairly significant piece of M&I, 
municipal and industrial use in the State.
    And in return for partial relief from payment of their 
distribution systems, and an assurance of a short term supply 
of affordable CAP water through the year 2030, while the non-
Indian irrigators could figure out a transition away from CAP 
water after that time.
    One of our concerns in this with the NGS is that affordable 
feature of CAP water to 2030 will not be provided because of 
these requirements on the Navajo Station.
    Dr. Gosar. Now, I know that we are sitting with a number of 
Native American water settlements coming up here. So this has 
some real dire consequences right now and in the future of 
shaping of Arizona's water supply, as well as their 
agriculture, does it not?
    Mr. Orme. Yes, I would say that it does. With respect to 
settlements in place, the largest is the Gila River Indian 
community, and one feature of that settlement is that they were 
to receive an affordable supply of CAP water indefinitely in 
return for their winter's rights, which was to be free water.
    And the cost of the energy increased for NGS threatens 
again that affordability feature for them. If NGS were to be 
shuttered altogether, and the Central Arizona Project would not 
be able to sell Navajo surplus power, it is the revenues from 
the sale of that power that go into the Lower Basin Development 
Fund to fund not only the Gila River settlement, but future 
Indian settlements as well.
    That revenue stream would no longer exist, and would 
jeopardize future settlements.
    Dr. Gosar. A real quick question. Is there anything on the 
horizon that could replace the Navajo Generating Station?
    Mr. Orme. In my opinion, there is not.
    Dr. Gosar. Five years?
    Mr. Orme. No.
    Dr. Gosar. Ten years?
    Mr. Orme. No.
    Dr. Gosar. Thank you.
    Mr. McClintock. Thank you. Mr. Costa.
    Mr. Costa. Thank you very much, Mr. Chairman, for this 
hearing, and the future hearings that we are going to hold on 
issues affecting waters of the west, and particularly obviously 
our focus this afternoon seems to be on California.
    Let me make just a couple of overlapping statements, 
because I think my problem with the regulatory environment, and 
the restrictions that we are dealing with, is the lack of 
flexibility as they are applied.
    But let me first make a couple of general statements. I do 
agree that there are a number of stress factors that are 
impacting fisheries. But the fact is that California produces 
half of the Nation's fruits and vegetables, half of the 
Nation's fruits and vegetables.
    And we have an issue of food not only in our country as it 
relates to hunger, but also the world, and water is going to be 
the big issue in how we ensure that we can grow as much as we 
can, not only in the Indian Nation, but in the world.
    We have a host of issues that we deal with as it relates to 
biological opinions that have been in place. We have had 
numerous biological opinions in place on the Columbia River, 
and they have been reconsulted, and we have established new 
biological opinions. And that is not different than in the 
Sacramento-San Joaquin Delta area.
    The mortality rate. Since 2000, the National Marine 
Fisheries established a jeopardy standard for winter runs of 
chinook salmon. Originally, it was a 25 percent of the adult 
population as a result of ocean fisheries. Now it is 20 percent 
as of 2010. But for the smolts, for the impacts of the exports 
that we were talking about here today, it is one percent. One 
percent.
    Now, Mr. Pool, I am symbiotical that the fishery, the 
salmon fishery, was closed down for the last two years. As you 
have testified, it has a dramatic impact. But when there was a 
zero allocation to the farm communities on the west side over 
the last three years, it had a devastating impact to us as 
well.
    And I am happy that they opened up the fisheries this year, 
the salmon fisheries, for your folks. But you are allowing a 20 
percent take. These are adult salmon that can come back and 
spawn and repopulate. Not hatchery fish.
    But we are saying a one percent take at the exports. I 
don't understand the fairness, nor do I understand the 
justification, for that extreme amount of differential on the 
take.
    Now, Mr. Pool, we have testified or we have stated that 
exports are not the only stress factors. Do you agree with that 
or not?
    Mr. Pool. I agree they are not the only stress factors. 
They are the most important stress factor.
    Mr. Costa. Well, then you and I disagree on that point. On 
the final draft on 11/28 of the San Joaquin River Fall Run 
Chinook Salmon Population, the Department of Fish and Game 
reviewed the scientific analysis on exports in salmon 
production, and found that it appears that the Delta export are 
not having the negative influence on the San Joaquin River 
salmon production they once thought they had.
    But you disagree with the Department of Fish and Game 
analysis don't you?
    Mr. Pool. Yes. I have to confess that I am not privy to all 
of those details, and so I am sorry, but I can't answer.
    Mr. Costa. OK. Well, can you refer to me the scientific 
analysis that supports your position that the pumping, that the 
export pumping, is the major reason of the decline of the 
salmon?
    Mr. Pool. Yes. I think if you go back to the biological 
opinion and the science behind that. There were six years of 
studies.
    Mr. Costa. But that was under reconsultation as ordered by 
the Court?
    Mr. Pool. Certain small pieces.
    Mr. Costa. Dr. Ken Newman wrote on a peer review report the 
evaluation of the Sacramento-San Joaquin River Scholl to 
Juvenile salmon survival studies, and have you reviewed Dr. 
Newman's report?
    Mr. Pool. Not on the San Joaquin. I have focused on the 
solution to our salmon problems are in the Sacramento for the 
most part. So that is where most of us in the industry have 
focused on.
    Mr. Costa. Well, you talked about, and you are familiar 
with, I am sure, the National Geographics study that talked 
about the decline of salmon from Alaska, all the way down the 
Canadian West Coast, down to Washington and Oregon, are you 
not?
    Mr. Pool. I am. Ocean conditions for two years impacted the 
fishery pretty much along the coast. A lot of those things have 
survived.
    Mr. Costa. And on the Napa River as well?
    Mr. Pool. Everywhere except the Central Valley, there have 
been some pretty good recoveries.
    Mr. Costa. Well, if there was not a recovery, you testified 
that there was a recovery, and that is why we have opened up 
the salmon season this year, right?
    Mr. Pool. There was a recovery, yes, for a couple of 
reasons. Regulatory reasons. The Court shut the pumps down in 
2008.
    Mr. Costa. But the Court also said that the scientific 
study did not support the biological opinion. The best science 
was not being used.
    Mr. Pool. Well, maybe----
    Mr. Costa. I mean, why are we having a reconsultation of 
both biological opinions?
    Mr. Pool. I don't think we are having----
    Mr. Costa. Well, we are.
    Mr. Pool. We are responding to lawsuits by the water 
contractors.
    Mr. Costa. The Judge has ruled that the best science was 
not used, and so they are reconsulting.
    Mr. McClintock. I am afraid that I am going to have to 
intervene here. The gentleman's time has expired. We will go to 
a second round of questions in a few minutes.
    Mr. Costa. Thank you.
    Mr. McClintock. Actually, we will go to that second round 
of questioning right now, and I will begin. Mr. Keppen, could 
you give us a picture of the human toll of these policies for 
the family farms in the San Joaquin Valley, or in the Klamath 
Valley?
    Mr. Keppen. Well, Mr. Chairman, as I testified here a 
little bit ago, in Klamath--and I would actually ask to have 
this document maybe resubmitted to the Subcommittee. I provided 
testimony of personal experiences of farmers and business 
people in the Klamath Falls area after the 2001 water shutoff, 
and how their lives were impacted in a lot of ways that you 
just don't read about in the papers. And it has to do with 
financing, ability to get loans, mental health issues, and so I 
guess to be brief, if I could perhaps submit that testimony to 
the Committee and the Committee could review that.
    Mr. McClintock. How many families have been thrown out of 
work by these policies?
    Mr. Keppen. Well, in 2001, and again this is just based on 
my personal experience in Klamath Falls, there were 1,400 
family farms that were impacted and did not receive water, and 
they were all impacted one way or the other.
    Mr. McClintock. How many in the San Joaquin Valley? I have 
seen estimates----
    Mr. Keppen. Tens of thousands I would say. There is a lot 
of controversy over the exact number, but I would say tens of 
thousands. I would say hundreds of thousands of acres to just 
generally characterize it.
    Mr. McClintock. Thank you. Mr. Pool, you said that there is 
a difference between hatchery salmon and wild salmon. Would you 
explain to us the genetic differences between those two types 
of fish? It seems to me that the difference is between a baby 
born at a hospital, and a baby born at home.
    Mr. Pool. In genetic differences, I am not sure that you 
will find a lot, but----
    Mr. McClintock. Do you find any?
    Mr. Pool. You find differences in their surviving.
    Mr. McClintock. Well, isn't that because we mutilate them 
when we release them by cutting off their fins in the case of 
the Klamath? I understand the policy is to remove the left or 
right lower mandible, and that is the jaw bone of the fish, 
before they are released?
    Mr. Pool. I think that most of those policies----
    Mr. McClintock. And we wonder why they don't do quite as 
well in the natural environment, and yet even so, tens of 
thousands return every year to spawn.
    Mr. Pool. Well, I agree that there is concern about those 
fins. They have to pull the fin, and it is perfectly safe to 
remove, and that is where most of the marking of the fish takes 
place.
    Mr. McClintock. Well, in Alaska, the marking is done simply 
by varying nutrients that does not require any mutilation, and 
those fish seem to get along just fine.
    Mr. Pool. A lot of fish get along fine if they have the 
ability to reproduce, and spawn, and migrate. Salmon will 
recover quickly if the conditions are good for them.
    Mr. McClintock. And again we want to see an abundance of 
salmon. We want to see healthy, thriving salmon populations as 
well. What struck me as being bizarre was to discover that the 
huge populations being produced by these fish hatcheries are 
simply ignored in the counts for Endangered Species Act 
population counts, as well as in mitigation to assure that we 
do have large abundant thriving populations. And again that is 
the objective that we are after. Mr. Keppen, and Mr. Semanko, 
and Mr. Noble, I have one question and if each of you could 
take a 30 second whack at it. There are a lot of water users 
that we are hearing from that believe that the Obama 
Administration has come up with proposed rules called the 
Principles and Guidelines That Govern New Water Infrastructure 
Construction, and that are going to stack the deck against new 
water storage. What are your views on these policies? Just very 
briefly in 30 seconds.
    Mr. Keppen. I will take a crack at it. In a nutshell, the 
old traditional analysis that they used to figure out if a 
water project was viable or not was kind of a cost benefit sort 
of approach.
    This factors in the environment. So the environment has to 
be looked at with the same sort of attention. I guess our 
concern is the environment issues might be elevated above other 
issues, and that is kind of the language that you see in the 
draft rules right now.
    Mr. McClintock. Mr. Noble.
    Mr. Noble. Mr. Chairman, I agree with Mr. Keppen. The risk 
that is being run by these guidelines is that we are going to 
elevate as the Endangered Species Act has the environment and 
the environmental uses threatened the endangered species above 
human consideration, without giving the flexibility to deal 
with the issue.
    Mr. McClintock. Mr. Semanko.
    Mr. Semanko. The only thing I would add, Mr. Chairman, is 
that these projects are projects largely that Congress has 
decided to authorize, and they are already subject to NEPA, and 
ESA, and the Clean Water Act, and all these things. And what 
you are doing potentially through the principles and guidelines 
is inserting the substitution of judgment for what Congress has 
decided, and intruding Congress' areas. That is one of the 
things that we are concerned about.
    Mr. McClintock. Great. Thank you. Ms. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chair, and I would start 
off with a clarification for the record. That the NOAA salmon 
biological opinion is not under reconsultation, and the science 
has been upheld by the National Academy of Sciences, and that 
is for the record.
    Now, Mr. Noble, in your testimony, you mentioned that 
Reclamation currently has programs in place to assist canal 
safety. How do we ensure that the reclamation of water canals 
is safe, and that another canal breach like the one in Fernley, 
Nevada, will not happen again?
    Mr. Noble. Congresswoman Napolitano, canals and levees are 
not designed or built to fail. But I am not sure that there is 
any program that can guarantee that they won't. Currently, 
Reclamation has introduced an aggressive program following 
Public Law 111-11 to inspect canals in urban areas, and the 
experience that we have had with those inspections is that they 
are thorough and detailed, and are looking at issues that 
present the greatest risk.
    Mrs. Napolitano. Thank you. Mr. Scholl, you mentioned in 
your testimony that a culture collaboration is necessary in 
solving our environmental concerns, while preserving industry.
    There are others who believe that removing all regulations 
would be the solution. Do you believe that removing all 
regulations would solve all of our Ag problems?
    Mr. Scholl. No.
    Mrs. Napolitano. Why?
    Mr. Scholl. Well, some of the reasons that I stated in my 
testimony, if you talk to farmers, and I think they understand 
that there needs to be rules and fair play. There are certain 
standards, or minimum standards, that need to be met.
    And lots of times, I think we have concerns in the farming 
communities ourselves. There are issues that we need to make 
sure that there is somebody there to make sure that the 
environment is clean, and that fair play is taking place.
    But again as I said in my statement, I think what we do 
from there is really the critical issue. You know, kind of the 
approach that we have taken to addressing point sources doesn't 
necessarily work for the way that we deal with non-point 
sources.
    Particularly when you are dealing with a group of people 
who have a lot of self-interest in making sure that they take 
steps, and take actions, to make sure that the environment is 
protected.
    That is really the part that we think the focus needs to be 
on, and that changes could be made.
    Mrs. Napolitano. Thank you. Mr. Pool, during 2009 and 2010, 
what percent of fishermen were put out of work?
    Mr. Pool. 100 percent. People talk about 40 percent. We had 
100 percent unemployment, and I know hundreds and hundreds of 
people that still have found no employment.
    Mrs. Napolitano. And so your economy has suffered?
    Mr. Pool. The economy has suffered tremendously.
    Mrs. Napolitano. Thank you, sir. Go ahead. OK. Mr. Orme, 
you mentioned Tribal trusts responsibilities, including water 
right settlements. Why is it important to settle Indian water 
rights?
    Mr. Orme. Representative Napolitano, it is important to 
give certainty to all water use sectors. Certainly my 
experience in Arizona has been that until you determine the 
Native American water rights in any particular adjudication, it 
is really hard to know what anybody else will have, given in 
most cases their winter rights claims.
    So it is important to settle Indian claims where you can to 
provide the certainty for what water is available to meet other 
claims within an adjudication and settlement.
    Mrs. Napolitano. Are Native Americans good stewards of 
water?
    Mr. Orme. I don't represent any Native Americans myself. My 
irrigation districts are adjoining to several large 
reservations, the Gila River Indian Reservation, and the Tohono 
O'odham Reservation, and as far as I am aware of, those Tribes 
do a good job with their water resources.
    Mrs. Napolitano. Thank you. Mr. Keppen, in your testimony, 
you say that Federal agencies should work collaboratively with 
stakeholders to find realistic solutions that benefit both 
fisheries and local economies.
    Do you believe the Klamath settlement agreements are an 
honest and cooperative effort to achieve by all affected 
parties realistic locally developed solutions in that area?
    Mr. Keppen. Well, I would say yes, and primarily based on 
my own experience, because again I used to run an association 
at a time when we were suing the Tribes, and the Tribes were 
suing us. We were attacking each other in the papers. Just the 
amount of conflict and the money that was just thrown down the 
drain because of that----
    Mrs. Napolitano. And who benefitted from that?
    Mr. Keppen. I have no answer, Congresswoman.
    Mrs. Napolitano. The attorneys.
    Mr. Keppen. And so I guess relatively speaking, what I see 
now is improved relations between some of those parties, and 
for me, I am not a big fan of litigation. No offense to my 
fellow attorneys up here. I am not an attorney by the way like 
these guys.
    I feel that there has just been an improved relationship. 
Some people are actually trying to work together 
collaboratively, instead of lobbying and suing each other.
    Mrs. Napolitano. Let's do that here in Congress.
    Mr. Keppen. I think that it is a pretty good example.
    Mrs. Napolitano. We should do that here in Congress, too. 
Thank you, Mr. Chairman.
    Mr. McClintock. You are welcome, and last but not least, 
Mr. Costa.
    Mr. Costa. Thank you very much, Mr. Chairman. Again, I 
think it is a false choice to be putting salmon against 
farmers. The fact is that we need successful, sustainable 
ability to farm, as well as to fish.
    And my problem has been that too often this is where the 
discussion and the debate ends up. We have a water system in 
California that was designed for 20 million people, and we have 
38 million people today, and we are going to have 50 million 
people by the year 2030.
    Unless we stop litigating and arguing about salmon fish 
versus food, versus farm workers, versus farmers, we are not 
going to solve the problems, and so we have to fix the problems 
in the Delta.
    Mr. Keppen, the 2010 National Academy of Sciences report--
it is a preliminary report--and the final report is not done 
yet, entitled, Scientific Assessment of Alternatives for 
Reducing Water Management Effects of Threatened and Endangered 
Species in the California Bay-Delta, found general conceptual 
support for the aspect that the biological opinions. But didn't 
the National Academy of Sciences criticized specific management 
measures as not being well supported?
    Mr. Keppen. Yes, Congressman Costa, and I think before you 
arrived, we discussed this briefly.
    Mr. Costa. Then let me go on, because I don't want to 
repeat that.
    Mr. Keppen. Sure.
    Mr. Costa. In listening to the river report that the 
Department of the Interior did in 2008, they again indicated 
that the reasonable and prudent alternatives were not working 
in the best science.
    And in particular regarding the Delta Smelt Biological 
Opinion, the National Academy of Sciences found that there is 
substantial uncertainty regarding the amount of flows that 
should trigger reduction in exports on page 5. Isn't that 
correct?
    Mr. Keppen. Yes.
    Mr. Costa. And the National Academy of Sciences found that 
a historical distribution of smelt in which the restrictions on 
exports were based no longer exist?
    Mr. Keppen. That is my understanding, yes.
    Mr. Costa. And with respect to the salmon biological 
opinion, the National Academy of Sciences concluded--and this 
is where I guess I take issue with my colleague--that the 
effectiveness of reducing exports to improve salmonid survival 
is less certain, and that the rates of the export have a weak 
influence on the survival rates, and that I believe was on page 
59.
    The final criticism of the two biological opinions 
expressed by the National Academy was a lack of quantitative 
analytical framework that ties the two biological opinions 
together within the species, between both smelt and salmonid.
    This type of systematic, formalized analysis, was we 
believe necessary to determine an objective opinion on the 
actions based upon the reports the report found to be a serious 
deficiency, Mr. Keppen. Have you seen that sort of deficient 
analysis employed in areas of restrictions on the project 
operations?
    Mr. Keppen. Yes, Congressman. Again, I would point to 
Klamath. The Klamath and Central Valley Project issues are very 
similar, and I think both reports identify that the National 
Academy put together, identify the need to do a holistic sort 
of approach, and look at all the stressors in the watershed.
    Mr. Costa. Do you believe that when we look at the 
regulatory framework that agency biologists often times claim 
preconceived, unsubstantiated beliefs about the effects of 
water projects on this?
    Mr. Keppen. You know, I do in some cases, and I think there 
are a lot of reports out there that have looked for some sort 
of a statistically significant relationship between exports and 
like salmon smolt survival.
    And each report kind of concludes that the relationship 
cannot be established, but the agency biologists continue to 
say that it is in there, but just masked by other data.
    Mr. Costa. They just have not found it?
    Mr. Keppen. Right. There are reports out there, and I can 
provide you with a list of those reports.
    Mr. Costa. I mean, we want to see the salmon recovery. It 
is in our interests to see the salmon recovery, just as we want 
to see farmers have a sustainable supply of water. I mean, 
those goals should not be mutually exclusive.
    The Judge said in the opinion as it related to the salmon 
biological opinion, that there are serious questions on whether 
there is support in the record for the general proposition that 
exports reduce the survival of salmonid in the interior Delta.
    Was that not correct on the consolidated salmonid case?
    Mr. Keppen. That is my understanding, but again I have not 
been real, real close to that particular situation, but that is 
my general understanding, yes.
    Mr. Costa. And the record is that the Judge went further on 
to say that the record does not support a finding that the 
specified flows to export ratios imposed by these actions that 
were necessary to avoid jeopardy, and adverse the modification 
of any listed species, which is why in essence we are going 
back to the drawing board just as they did with the Columbia 
River to try to get this right.
    Mr. Keppen. That is correct, and I think--you know, Mr. 
Semanko might want to weigh in on the issues on the Columbia, 
but again that is another project that comes to mind.
    And to get back to your earlier question of an area where 
it seems that the agencies focus usually just on irrigation 
flows or dams, and a lot of times these other stressors aren't 
reviewed.
    Mr. Costa. I guess the real debate, Mr. Chairman, and my 
time is expired, but let me just close on this note, is that we 
have a difficult time coming to agreement when we talk about 
the most multiple stress factors, and in this case, in the 
Sacramento and San Joaquin River Delta System, as to trying to 
accurately determine which of those stress factors are 
associated to the loss in the case of the salmon or the smelt.
    We know that they are all impacting them, but there is 
serious disagreement as to what degree certain stress factors 
over other stress factors are causing the decline.
    Mr. McClintock. Thank you. Mr. Garamendi.
    Mr. Garamendi. Thank you, Mr. Chairman, and Mr. Costa, for 
really raising this issue. What was being discussed here in the 
last few moments is really the science, not the regulations 
that require the science to be done.
    And I think we need to be pretty clear about exactly what 
we are talking about here. Clearly the science is and the Judge 
found it to be inadequate, and back to the scientific drawing 
board to see if we can get a more accurate description, or a 
more accurate understanding of the science.
    But again the regulations that are in place protecting the 
species are not being called into question here. What is being 
called into question is the science that follows that is to 
deal with those regulations.
    And I agree that we ought to follow the science. We ought 
not short-circuit the science at all, and I agree with Mr. 
Costa and others that there are multiple stressors in the 
Delta.
    As I said a few moments ago, some of those are caused by 
the Delta farming interests themselves, and we are working to 
clean that up, and undoubtedly the Delta--and I live in the 
Delta, and farm in the Delta.
    We will be hammered if we continue to dump pesticides or 
other bad things into the water, as we should, but again it is 
not the regulations. The question is about the science and the 
adequacy of the science.
    And an issue that I would like to move to is the storage 
issue. Now, this is really important, and for all of the west, 
the storage of water is important. Many studies on storage are 
underway as we speak, and some projects are underway.
    I believe the Los Vaqueros Reservoir will begin as soon as 
the rains stop, which is hopefully not soon. But nonetheless 
that will be done. I asked Jim a moment ago, Mr. Costa, about 
the Temperance Flat. I would hope that study proceeds, and we 
will out the issues there.
    I know that there is a hydroelectric power issue there, and 
there are also some environmental issues, as well as the effect 
that it may have on the San Joaquin itself. Other storage sites 
and other storage reservoirs, we ought to proceed with those 
studies, all of them, including the underground water storage 
potential throughout California.
    We do need storage, and we ought to proceed with those. 
Ultimately, we are going to have to deal with the costs of 
those systems and who is going to pay for it. But I would urge 
this Committee, in every case possible, to push the storage 
studies along so that we understand completely the benefits, 
the costs, and whatever the issues are involved in those.
    Mr. Costa. Would the gentleman yield?
    Mr. Garamendi. Sure.
    Mr. Costa. I just want to underline your point there, 
because this year, with 165 percent of snowpack, and we have 
record runoffs. We have flooding in California. Yet, Southern 
California is getting under the State Water Project like 70 
percent of their allocation.
    My westside area was receiving 55 percent until this week, 
and then they moved that to 65 percent. But the ability to 
plan, it gets back to a broken water system, and when you have 
great snow years and rain years like this year, you know that 
we need to do a better job on our storage, and in our water 
supply. I thank the gentleman for yielding.
    Mr. Garamendi. Well, you covered that point well. I just 
want to wrap up on the Delta here. The Delta is in deep trouble 
for a variety of reasons. The aquatic species in the Delta are 
in deep, deep trouble. There are a variety of reasons.
    It is incumbent upon all of us for the purposes of the 
economy, of the Delta, of the fishing economy, as well as the 
agricultural economy, that we proceed with considerable speed 
and attentiveness in including money for the studies to get the 
science right.
    And to do the very best that we can to understand the 
stressors, all of them, and to mitigate those that are possible 
to mitigate. It is of utmost importance for everybody involved.
    Again, it is not the regulatory system. That sets the 
parameters. It is the science underlying it that we need to 
really be busy about. With that, I guess I didn't ask a 
question, but Jimmy, thanks for your help. Excuse me, Mr. 
Costa, thank you for your help.
    Mr. McClintock. I believe that concludes all the time that 
we have allocated for questions. I would like to thank all of 
our witnesses for their valuable testimony. Members of the 
Subcommittee may have additional questions for witnesses, and 
we would ask that you respond to those in writing, and the 
hearing record will be open for 10 business days to receive 
those responses, and if there is no further business, then 
without objection, the Subcommittee stands adjourned.
    [Whereupon, at 4:08 p.m., the Subcommittee was adjourned.]

    [Additional material submitted for the record follows:]

    [A statement submitted for the record by Doug Headrick on 
behalf of the Santa Ana Sucker Task Force, follows:]

 Statement submitted for the record by Doug Headrick, General Manager, 
San Bernardino Valley Municipal Water District, on behalf of the Santa 
                         Ana Sucker Task Force

    Chairman McClintock and Members of the Committee, thank you for 
this opportunity to submit testimony for the record. My name is Doug 
Headrick, and I am the General Manager of the San Bernardino Valley 
Municipal Water District. I am contacting you today as a representative 
of the Santa Ana Sucker Task Force, a group of thirteen water agencies, 
flood control districts and cities from Southern California who have 
banded together in the face of regulatory overreach by the US Fish and 
Wildlife Service. The Task Force agencies serve almost three million 
Southern Californians and cross numerous Congressional districts. 
Member agencies of the Task Force are: San Bernardino Valley Municipal 
Water District, Western Municipal Water District, City of San 
Bernardino Municipal Water Department, City of Riverside Public 
Utilities Department, San Bernardino Valley Water Conservation 
District, East Valley Water District, City of Redlands, Yucaipa Valley 
Water District, Bear Valley/Crafton Water Companies, Riverside County 
Flood Control District, and Big Bear Municipal Water District.
    The USFWS, under heavy political and legal pressure by the Center 
for Biological Diversity, recently set aside their own carefully 
defined designation of the critical habitat of the Santa Ana Sucker and 
has now expanded the territory into areas that guarantee dire economic 
consequences for our communities. Worse, the addition of these new 
areas is not supported by the known biology of the species. This 
situation is the subject of my testimony.
Background on the Santa Ana Sucker and the Task Force:
    The Santa Ana Sucker is a small fish that lives in the Santa Ana 
River and has been listed as a Threatened Species under the Endangered 
Species Act since 2001. The fish has been the subject of much regional 
concern and has been protected for over ten years by the state of 
California and local agencies under a Species Management Plan. Members 
of our Task Force have worked with Fish and Wildlife to study the fish 
and monitor its progress, and many of us have spent great sums of time 
and money doing so. We all recognize the important role that we play in 
protecting the delicate ecosystems of Southern California, and we do so 
willingly.
    In 2005, the USFWS established an area of Critical Habitat for the 
fish, a process which my agency and many others in the Task Force 
participated in and remember well. At the time, the Service proposed 
that a very broad region be included in the designation. Ultimately, 
they decided not to designate the dry upper Santa Ana River areas as 
critical habitat, finding that these areas were not, and I quote, 
``essential to the conservation of the species'' and that the enormous 
costs to the Inland Empire's economy far outweighed any benefits to the 
species. Our water agencies have subsequently been successfully 
conserving the Santa Ana Sucker, and will continue to do so. Our 
efforts have included working with the California Department of Fish 
and Game to fund the efforts of the Santa Ana Sucker Conservation Team 
to recover and restore its habitats. In addition, we have clearly and 
repeatedly expressed to the USFWS our willingness to cooperatively 
design and protect habitat for the Santa Ana Sucker because we care 
about the health of the fish.
    After the 2005 process concluded, everyone in the region considered 
the issue to be well-settled. My agency and many others undertook long-
term planning for construction of infrastructure and water supply 
projects which are critical to our region. However, in December 2009, 
the USFWS announced that they would revise the Critical Habitat. This 
was done without giving any scientific or economic rationale for doing 
so. Certainly, nothing in the biological data showed the species to be 
in decline, and the USFWS has not produced any such data. A legal 
settlement between the USFWS and the Center for Biological Diversity 
directed the Service to undertake a review of the Sucker's habitat, but 
it did not require a habitat expansion. Moreover, the lawsuit 
settlement did not override existing law.
    The Task Force I represent today was organized in early 2010 in 
response to the US Fish and Wildlife Service's announcement that it 
would re-visit the Critical Habitat for the Santa Ana Sucker. We were 
alarmed at the announcement because of the lack of justification by the 
Service. With the USFWS' announcement of the Final Critical Habitat 
Designation for the Santa Ana Sucker in December of 2010, our fears 
were realized because the decision totally disregards the scientific 
and economic realities which should have been central to the agency's 
decision based on the requirements of the Endangered Species Act. In 
short, the Service did not follow its own rules or Federal law.
Problems with the Revised Critical Habitat
    Allow me to underscore the fact that none of the areas that USFWS 
has newly designated currently or have ever supported a population of 
Santa Ana suckers. The Endangered Species Act requires a very high 
standard for the designation of unoccupied territory, specifically: 
that the territory be ``essential'' for the species' preservation. 
USFWS' proposed rule ignores that requirement and also ignores its 
prior determination that these areas were not ``essential'' to the 
preservation of the species. By contrast, the California State Water 
Resources Control Board recently spent considerable time analyzing the 
needs of the Santa Ana Sucker before granting water rights to my agency 
and Western Municipal Water District of Riverside County. They found 
that the diversion of water from the upper reaches of the Santa Ana 
River, where the fish has never been in evidence, would not interfere 
with the public trust resource of the suckers. With the recent Critical 
Habitat expansion, we are worried that the millions of dollars of 
public money invested in securing this new water supply for the benefit 
of those we serve are in jeopardy.
    Amazingly, the USFWS has included areas of dry riverbed in the 
habitat for this fish. These stretches of river are periodically wet 
when Southern California gets a lot of rain, but they are bone dry for 
an average of nine to eleven months a year. No fish currently live, nor 
is there any evidence that a sustainable population of Suckers ever 
lived, in these reaches of the Santa Ana river. Members of the 
Committee, I am an engineer by training, but I picked up enough biology 
along the way to know that fish cannot live in dry riverbeds. This 
represents the USFWS's greatest overreach since there is no evidence 
that these areas have ever been occupied by Santa Ana suckers, let 
alone that they are ``essential'' to the species' preservation.
    There are some wet areas of the Santa Ana River that have been 
added in the revised habitat; however, they are subject to flooding and 
otherwise do not have the proper substrates, water temperatures or 
other environmental conditions needed for the Santa Ana sucker. 
Importantly, these creeks and the dry areas of the upper Santa Ana 
River are subject to periodic flooding that are an entirely normal part 
of Southern California's weather cycle. These floods send water and 
cobble stone down the river to the where the Suckers are located and 
fulfill its needs. A critical habitat designation is totally irrelevant 
since these flows are entirely natural. A habitat designation would 
have no meaningful impact on the volume of water or cobble involved.
    Membership of the Santa Ana Sucker Task Force includes cities, 
water districts and other agencies that provide critical services in 
the region and are undertaking projects to improve the quality of life 
for all Southern Californians. Together, we repeatedly presented 
scientific and economic information to the agency and participated at 
every available opportunity. Unfortunately, much of this effort was in 
vain.
Consequences of the USFWS Decision
    Members of the Committee, I would not be appearing today if it was 
not for the enormous water supply and economic consequences that the 
reopening of the Santa Ana Sucker habitat, just five years after the 
issue was settled, can have on the communities that I am representing 
here today. As you no doubt know, water is a huge issue in Southern 
California. In part, this is because of the impact of repeated 
droughts. In part, it is because Southern California's growth, 70% of 
which is simply the natural increase of births over deaths in our 
families with 2.1 million more people expected to live in the inland 
area between 2008-2035.
    Taking a very broad view of the problem, this decision aggravates 
the water shortages currently being experienced in the entire state of 
California and the Southwest region of our nation. Restrictions on 
drawing water from the Delta have a widespread effect, and one of the 
most effective methods of compensating for reduced Delta water supplies 
is the creation of reliable local water supplies.
    The expanded Critical Habitat for the Santa Ana Sucker directly 
opposes our efforts to capture stormwater, recharge our basins and 
reduce our reliance on imported water. Member agencies of the Task 
Force want to undertake water recycling projects, desalination efforts 
and flood control projects which will expand our supplies of local 
water and recharge our depleted groundwater basins. We know that these 
projects will save money for our customers and make our communities 
drought-proof while reducing pressure on the Sacramento--San Joaquin 
Delta. The Critical Habitat designation will prohibit important 
projects from going forward. Here, it is important to understand that 
the dry, ephemeral reaches of the upper Santa Ana River are where those 
of us concerned about water supplies have worked for years to capture 
and conserve water that our periodic rainfall would normally send to 
the Pacific Ocean. For a century, this dry riverbed has been the site 
of spreading basins where some of our mountain runoff is captured, 
allowing it to seep into an underground aquifer, equivalent in size to 
Lake Shasta. If this area becomes habitat, access to this historical 
local supply of water will be lost.
    Meanwhile, several years ago Congress financed the Seven-Oaks Dam 
on the Santa Ana River to provide downstream protection from what the 
Army Corps of Engineers called the greatest risk for catastrophic 
flooding west of the Mississippi River. This opened the possibility of 
storing some mountain runoff behind the dam, further increasing local 
water supplies. Together with monies from our local agencies, Congress 
authorized spending to alter the dam's design for that purpose. The 
California State Water Resources Control Board later spent considerable 
time analyzing the needs of the Sucker and granted rights to this 
``new'' water to our local agencies. They found that capturing this 
water would not harm the Sucker since it came from areas where the fish 
has never existed. Also, they found that it would not harm the Sucker 
since natural water and cobble moving flows below the dam were 
sufficient to satisfy its needs. Should the habitat expansion be 
granted, our rights and access to this water would be 
nullified...violating Congress's clear intention.
    Loss of the water from these two efforts, plus several others by 
local agencies working in the normally dry, ephemeral upper reaches of 
the Santa Ana River added to the Sucker habitat, would mean the loss of 
up to 125,800 acre feet of water a year to the Inland Empire. If it 
could be replaced, the 25 year cost would be $2.87 billion. If local 
taxpayers could put aside money today to buy this water, using a 3% 
interest rate that is logical in today's economy, the cost would be 
$1.87 billion. Fish & Wildlife used several tricks to have their 
economists lower this number, such as using an unrealistic 7% rate. 
Still, they ended up with a $694 million present day cost to local 
taxpayers. All this for the inclusion of a dry habitat zone that has 
nothing truly to do with helping the fish.
    Worse by far, however, is the fact that it is highly unlikely that 
the 125,800 acre feet of local water that would be lost could be 
replaced at any cost. Thus, in March 2011, with California's snow pack 
at 165% of normal, the State Water Project estimated that it will only 
be able to supply its regional water agencies with 70% of their current 
water allocations. In recent years those shares were 50% in 2010, 40% 
in 2009, 35% in 2008 and 60% in 2007. If we need more water from the 
State Water Project, we will very likely not be able to get it.
    California law mandates that local water agencies must certify a 20 
year supply of water before any major residential, retail, office or 
industrial project can be built. The San Bernardino and Riverside 
region, with a current unemployment rate of over 13%, desperately needs 
economic development. When that law is combined with the restricted 
flow of water to Southern California because of the Delta Smelt 
situation and the restriction of the Inland Empire's local water supply 
with the Santa Ana Sucker, we come close to having the Endangered 
Species Act control growth and economic activity in Southern 
California. Despite that chilling result, and the fact that this issue 
was repeatedly raised with Fish & Wildlife, their economic analysis of 
the proposed expansion of the Sucker habitat did not even evaluate this 
issue. Yet, the impact would run into the billions and billions of 
dollars.
Next steps for the Task Force:
    Right now, our Task Force is undertaking a thorough review of the 
ruling that the designation should be expanded into areas that will 
harm our economy, but do nothing for the Santa Ana Sucker. After that 
review is completed, the Task Force will file a formal notice with the 
Service outlining the deficiencies in their decision. From the point of 
that filing, the USFWS will have 60 days to either make changes to the 
Critical Habitat designation or leave it the same. The Task Force 
remains hopeful that the agency will consider all of the 
relevantscientific and economic information during this next phase of 
the process. In the meantime, I ask the Committee to please undertake 
an active role in oversight of the USFWS and its use of the Endangered 
Species Act as a regulatory tool.
                                 ______
                                 
    [A statement submitted for the record by David Modeer, 
General Manager, Central Arizona Project, follows:]

 Statement submitted for the record by David Modeer, General Manager, 
                        Central Arizona Project

    As General Manager of the Central Arizona Project (CAP), I thank 
Chairman McClintock, Ranking Member Napolitano, and other members of 
the Committee for the opportunity to submit for the record written 
testimony for the Oversight Hearing on ``Creating Abundant Water and 
Power Supplies and Job Growth by Restoring Common Sense to Federal 
Regulations.'' Our goal at CAP is to provide a reliable and sustainable 
supply of Colorado River water to cities, industries, farms, and Tribal 
users in a service area that includes over 80 percent of the state's 
population. We have successfully achieved this goal for the past 25 
years.
Background
    The Central Arizona Project, constructed by the Bureau of 
Reclamation (BOR) for the State of Arizona, is a multi-purpose water 
resource development and management project that delivers Colorado 
River water into central and southern Arizona. The largest supplier of 
renewable water in Arizona, the CAP delivers an average of over 1.5 
million acre-feet of Arizona's 2.8 million acre-foot Colorado River 
entitlement each year to municipal and industrial users, agricultural 
irrigation districts, and Indian communities. The CAP meets 
approximately 50 percent of municipal demand within its service area, 
including 45 percent of the City of Phoenix's total water demand and 
nearly 80 percent of the City of Tucson's water demand by the year 
2020. In addition, 47 percent of the long-term CAP entitlement is 
dedicated to Indian Tribal use, while 41 percent of current CAP 
deliveries support non-Indian agricultural production.
    These supplies of renewable water are integral to the economy of 
the State of Arizona and to the economies of the Navajo Nation, the 
Hopi Tribe, and other Native American communities. CAP has also helped 
the State of Arizona meet its water management and regulatory 
objectives of reducing groundwater use and ensuring availability of 
groundwater as a supplemental water supply during future droughts.
    CAP infrastructure includes a 336-mile-long delivery system with 14 
pumping plants and one combination pumping/generating facility; 10 
siphons that carry water under riverbeds and washes; three tunnels; 
over 45 turnouts that connect the CAP aqueduct with consumers' systems; 
a large storage reservoir; and a state-of-the-art control center. The 
Central Arizona Water Conservation District (CAWCD) was established in 
1971 as the state agency that manages and operates the CAP system, 
collects revenues from ratepayers and, since substantial project 
completion in 1993, repays the federal government for the reimbursable 
costs of construction.
    The Colorado River Basin Project Act allowed the federal government 
to participate in the non-federal Navajo Generating Station (NGS), near 
Page, Arizona, to provide power for pumping CAP water as an alternative 
to building additional dams on the Colorado River. Construction of NGS 
was the result of an environmental compromise brokered by then-
Secretary of the Interior Stewart Udall. In addition to providing CAP 
pumping energy, NGS also provides electricity to retail customers in 
Arizona, Nevada and California. BOR's share of NGS' annual output is 
24.3 percent, or 546,750 kilowatts per year for the benefit of CAP.
    NGS was constructed by the Salt River Project Agricultural 
Improvement and Power District of Arizona, now part of the Salt River 
Project (SRP). In addition to BOR and SRP, other participants in NGS 
are NVEnergy (formerly Nevada Power Co.), Tucson Electric Power Co., 
and Los Angeles Department of Water and Power.
    CAP maintains an ongoing, constructive dialogue with BOR and other 
federal agencies, including the Environmental Protection Agency, to 
discuss issues of mutual interest and concern. CAP also works closely 
with its customers regarding their needs and concerns. Our ongoing 
focus includes collaborative efforts to:
          Manage water resources sustainably in partnership 
        with CAP customers, BOR, the Colorado River states, and others 
        to assure long-term, affordable supplies of water;
          Maintain access to critical energy supplies, 
        including working with the NGS participants and others to 
        reduce air emissions and explore clean-energy options for the 
        future;
          Work with Tribes and others, as appropriate, to 
        fulfill provisions of Indian water rights settlements; and
          Collaborate with other agencies on data- and 
        information-sharing on water quality issues facing the Lower 
        Colorado River.
Critical Regulatory Issues--Water and Energy
    Energy Needs: To deliver water to its customers, CAP moves over 500 
billion gallons of Colorado River water over 300 miles and nearly 3,000 
feet uphill. Moving water across this distance and up this elevation 
requires approximately 2.8 million megawatt hours of electricity, 
making CAP the largest end user of electricity in Arizona. Nearly all 
of CAP's power is derived from the coal-fired Navajo Generating Station 
near Lake Powell; the plant is essentially the sole source of power for 
pumping CAP water.
    Regulatory Issues: NGS is near numerous national parks, monuments, 
and wilderness areas, and controlling plant emissions has been and 
still remains a priority for CAP and the plant participants. Pursuing 
that commitment, in the1990's NGS participants invested over $400 
million in scrubbers to reduce sulfur dioxide emissions. In 2008, the 
plant began voluntary installation of additional environmental controls 
to reduce smog-forming nitrogen oxide (NOx), with completion 
expected by the end of 2011. The low-NOx burners with 
separated over-fire air (LNB/SOFA) will cost approximately $45.2 
million for installation on all three units at NGS. This price tag 
translates into expected increases in CAP energy rates of about 1 
percent.
    Despite these ongoing investments in air quality improvements, NGS 
is now the focus of additional proposed regulatory requirements. The 
U.S. Environmental Protection Agency (EPA) is in the process of setting 
new rules to control NOx emissions at coal-burning power 
plants, including NGS, under the Regional Haze Rule of the Clean Air 
Act.
    Potential Regulatory Impacts: While EPA is looking at low-
NOx burners such as those currently being installed at NGS, 
the agency is also considering a different control system known as 
Selective Catalytic Reduction (SCR). In comparison to the low-
NOx technology, the SCR system (including baghouses), has a 
potential price tag of over $1 billion, as much as 20 times the cost of 
low-NOx burners. If SCR is required at NGS, CAP energy rates 
could climb 33 percent higher than 2010 rates (or even higher if 
financing of less than 20 years is required). These higher energy costs 
would affect water rates for the majority of Arizona's population. 
Agricultural water users, both Indian and non-Indian, would be 
particularly hurt by these higher rates. (For more details on this 
analysis, see the attached letter from CAP to EPA dated November 22, 
2010; for additional background, please also see the attached letter 
from CAP to EPA dated December 18, 2009).
    Impacts from such regulatory requirements extend beyond the 
increased costs for energy and water. As authorized by the Congress, 
NGS power not used for CAP pumping is sold to help repay CAP 
construction costs and to help fund Arizona Indian water rights 
settlements. These amounts are not trivial. Revenues from the sale of 
surplus NGS power now contribute about $22 million per year toward the 
$57 million in annual repayment obligations for the CAP. In the future, 
revenues from the sale of surplus NGS power are expected to contribute 
$50 million or more per year toward CAP repayments and toward Indian 
water rights settlements.
    The extremely high costs of the SCR/baghouse option could 
jeopardize continued operation of the NGS facility, with severe 
economic impacts to CAP users and to the Navajo Nation and the Hopi 
Tribe. Because a number of critical uncertainties face the Navajo 
plant, including the renewal of land and water leases and future 
federal air quality regulations, a near-term requirement to install SCR 
at Navajo could raise the specter of plant closure. Rather than risk a 
huge investment in retrofitting the plant with SCR technology prior to 
the resolution of these uncertainties, NGS participants could decide 
simply to close the plant and meet their energy needs through other 
means. As a consumer of NGS power rather than a retail marketer CAP, 
however, would be catastrophically impacted by closure of NGS, as would 
be Arizona Indian tribes.
          Should the NGS facility cease operations, CAP would 
        have to acquire a substitute source of pumping power at market 
        rates. Using several forecasts, CAWCD estimates that, CAP 
        pumping energy costs could increase by 50 to 300 percent 
        (rising from $65 per acre foot to $95--$180 per acre foot) by 
        2017.
          NGS employs 545 full-time employees, nearly 80 
        percent of whom are Navajo. The Kayenta Mine, which supplies 
        coal to the plant, employs another 422 tribal members. In 2010, 
        the power plant and mining operations contributed $137 million 
        in revenue and wages to the Navajo Nation and its tribal 
        members and $12 million annually (88 percent of the Tribe's 
        annual operating budget) to the Hopi Tribe.
          Arizona tribes that have accepted delivery of CAP 
        water in lieu of pursuing their claims to other water rights 
        could find their newly-developed agricultural operations 
        uneconomical.
    Collaboration and Information: The CAP, along with other interested 
stakeholders, has participated since January 2011 in a series of 
collaborative dialogues to identify reasonable solutions that would: 1) 
meet the energy needs of CAP so that the project can fulfill its 
mission of providing affordable and reliable water supplies to Arizona 
and Tribal communities; 2) result in continued reductions in regional 
haze; 3) uphold provisions of the 2004 Arizona Water Settlements Act; 
and 4) expand clean energy opportunities, including use of renewable 
energy. To date, these discussions continue but have not resulted in a 
consensus solution.
    In addition, the Department of the Interior, working with the 
National Renewable Energy Laboratory, has proposed to undertake a study 
of energy infrastructure development within the Colorado Plateau region 
of the Hopi and Navajo Reservations and possible options for use of 
renewable energy to meet CAP pumping energy requirements and other 
needs. The CAP supports initiation of this study. Pumping of CAP water 
requires large amounts of baseload power to meet the project's 24/7 
operational requirements. Despite many efforts by CAP to identify 
alternative sources of energy to meet its needs, no options exist now 
or in the immediate future of sufficient scale to supply those baseload 
needs. This proposed study could provide critical information and 
analysis to assist the CAP in evaluating and planning for future energy 
needs.
Improving Water Reliability and Sustaining Water Quality
    While facing numerous challenges as it strives to maintain a viable 
energy supply, CAP has actively invested in technologies and processes 
to improve water supply reliability, increase system efficiency and 
reduce system losses. These efforts include construction and operation 
of additional storage along the Lower Colorado River system to capture 
previously non-storable water ordered but not delivered to users as a 
result of changes in irrigation schedules. Through the 2010 completion 
of the Brock Reservoir along the All American Canal, funded by CAP 
along with the Metropolitan Water District of Southern California and 
the Southern Nevada Water Authority, more than 70,000 acre-feet of 
water per year will be saved, improving operational efficiency and 
reducing the impact of any periodic water shortages during droughts. 
Building upon analysis from a 2007 Drought Impacts Study, CAP also has 
developed plans to recover water stored underground for use in times of 
Colorado River supply shortages.
    In 2007, the seven Colorado River Basin States and the Bureau of 
Reclamation completed an agreement, the Shortage Sharing Guidelines, 
identifying steps to be taken should a shortage situation arise, 
including provisions to coordinate operations and storage at Lake 
Powell and Lake Mead. Water professionals throughout Arizona and the 
Basin states have spent many years developing infrastructure, programs, 
and practices to make the water supply system more resilient to changes 
in variable water levels. Examples include making efficiency 
improvements to the Colorado River delivery system; developing ways to 
reuse water and increase supplies; and treating agricultural drainage 
water for reuse. Careful CAP system design limits annual evaporation to 
4.4 percent from the aqueduct.
    As a service to its municipal and industrial customers and the 
millions of people who ultimately drink the water, CAP employs a 
comprehensive water quality testing program.
    These accomplishments underscore CAP's commitment to sustainable 
water management that meets the needs of Arizona, Tribes, and the 
Nation. I welcome the opportunity to discuss these issues with the 
Subcommittee and invite you and other members of the Subcommittee to 
visit the Central Arizona Project at an appropriate time.
Attachments
1.  Letter to Mr. Jared Blumenfeld, Regional Administrator, Region 9, 
U.S. Environmental Protection Agency, dated November 22, 2010
2.  Letter to Ms. Colleen McKaughan, Associate Director, Air Division 
Region IX, U.S. Environmental Protection Agency, dated December 18, 
2009
[NOTE: Attachments have been retained in the Committee's official 
        files.]

                                 
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