[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
NEW FEDERAL SCHEMES TO SOAK UP WATER AUTHORITY: IMPACTS ON STATES,
WATER USERS, RECREATION AND JOBS
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Tuesday, June 24, 2014
__________
Serial No. 113-78
__________
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Jared Huffman, CA
Raul R. Labrador, ID Raul Ruiz, CA
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Steve Daines, MT Katherine M. Clark, MA
Kevin Cramer, ND Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
TOM McCLINTOCK, CA, Chairman
GRACE F. NAPOLITANO, CA, Ranking Democratic Member
Cynthia M. Lummis, WY Jim Costa, CA
Scott R. Tipton, CO Jared Huffman, CA
Paul A. Gosar, AZ Tony Cardenas, CA
Raul R. Labrador, ID Raul Ruiz, CA
Doug LaMalfa, CA Alan S. Lowenthal, CA
Jason T. Smith, MO Peter A. DeFazio, OR, ex officio
Bradley Byrne, AL
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Tuesday, June 24, 2014........................... 1
Statement of Members:
DeFazio, Hon. Peter, a Representative in Congress from the
State of Oregon............................................ 5
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 4
LaMalfa, Hon. Doug, a Representative in Congress from the
State of California........................................ 6
McClintock, Hon. Tom, a Representative in Congress from the
State of California........................................ 1
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 3
Smith, Hon. Jason, a Representative in Congress from the
State of Missouri.......................................... 7
Statement of Witnesses:
Clark, Roger, Director, Engineering and Operations,
Associated Electric Cooperative, Inc., Springfield,
Missouri................................................... 41
Prepared statement of.................................... 43
Lemley, Andrew, Government Affairs Representative, New
Belgium Brewing Company, Fort Collins, Colorado............ 28
Prepared statement of.................................... 29
Martin, Lawrence, Attorney, Halverson Northwest Law Group,
Yakima, Washington, representing the National Water
Resources Association...................................... 9
Prepared statement of.................................... 11
Parker, Randy, Chief Executive Officer, Utah Farm Bureau
Federation, Sandy, Utah.................................... 31
Prepared statement of.................................... 32
Tyrrell, Patrick, State Engineer, State of Wyoming, Cheyenne,
Wyoming.................................................... 23
Prepared statement of.................................... 24
Additional Materials Submitted for the Record:
Bureau of Reclamation, U.S. Department of the Interior,
Prepared statement of...................................... 73
Family Farm Alliance, Klamath Falls, Oregon, Dan Keppen,
Executive Director, Prepared statement of.................. 74
List of documents submitted for the record retained in the
Committee's official files................................. 86
Members of Congress, May 1, 2014 letter to Gina McCarthy, EPA
and John McHugh, Dept. of the Army, submitted for the
record by Rep. Costa....................................... 62
National Stone, Sand and Gravel Association (NSSGA), Prepared
statement of............................................... 81
Portland Cement Association, Cary Cohrs, Chairman of the
Board, June 24, 2014, Letter submitted for the record...... 83
Trout Unlimited, Arlington, VA, Steve Moyer, Vice President
for Government Affairs, June 25, 2014, Letter submitted for
the record................................................. 84
U.S. Department of Agriculture, Prepared statement of........ 71
OVERSIGHT HEARING ON NEW FEDERAL SCHEMES TO SOAK UP WATER AUTHORITY:
IMPACTS ON STATES, WATER USERS, RECREATION AND JOBS
----------
Tuesday, June 24, 2014
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 10:00 a.m., in
room 1324, Longworth House Office Building, Hon. Tom
McClintock, [Chairman of the Subcommittee] presiding.
Present: Representatives McClintock, Lummis, Tipton, Gosar,
Labrador, LaMalfa, Smith, Byrne, Hastings (ex officio);
Napolitano, Costa, Huffman, DeFazio (ex officio).
Mr. McClintock. The Subcommittee on Water and Power will
come to order.
The Water and Power Subcommittee meets today to hear
testimony on a hearing titled ``New Federal Schemes to Soak up
Water Authority: Impacts on States, Water Users, Recreation,
and Jobs.''
I will begin with 5-minute opening statements by the
committee, and the Chair will begin.
STATEMENT OF THE HON. TOM McCLINTOCK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. McClintock. The subcommittee meets today in response to
urgent protests made by a wide range of state and local
governments, farmers, ranchers, and public land users, and
private land owners in response to threatened action by the EPA
and the Forest Service to vastly expand their authority over
water use at the expense of long established state
jurisdictions, rights and prerogatives and in direct violation
of the constitutional separation of powers.
This subcommittee met 2 years ago to discuss how the Forest
Service planned to extort ski areas of their water rights in
exchange for operating permits. The House passed a bill to
remedy that.
Now the Forest Service threatens through executive fiat to
assert management control over ``surface and groundwater
resources that are hydraulically interconnected and to consider
them interconnected in all planning and evaluation
activities.'' It also asserts Federal supremacy over state
water rights not only on national Forest Service land, but on
adjacent lands that could conceivably affect the Federal lands.
The unconstitutional and illegal assertion of such
authority would impose Federal riparian rights in direct
violation of current Federal law. It overturns western state
doctrines of prior appropriations that have guided water policy
in those states for more than 150 years. As we will hear, the
economic impact of this action is devastating to those states.
Meanwhile, the EPA now threatens, again through executive
fiat, to vastly increase its jurisdiction over virtually all
water in the United States. The Clean Water Act provided the
EPA with jurisdiction only over navigable waters. In 2010,
then-Congressman Oberstar proposed legislation to delete the
term ``navigable waters,'' to vastly redefine ``Waters of the
United States''. The Democratic majority in that Congress
declined even to hear the bill. Under a Constitution that gives
Congress exclusive authority to legislate, the EPA now
threatens to change the law itself to vastly increase its power
and jurisdiction.
By this act, the EPA is seizing control over virtually
every body of water in the United States, including many
agricultural and drainage ditches, ornamental lakes, conduits
people use for water recycling, and small creeks and streams,
including those that exist only during heavy runoffs.
What this means in practice is the Forest Service and the
EPA can, under these proposals, require cost-prohibitive
Federal permits for any proposal tangentially affecting
virtually any body of water in the United States.
What this means constitutionally is that legislative power
exclusively assigned to Congress has now passed unrestricted to
the Executive, including the power to repeal existing laws,
such as the McCarran Amendment that guarantees to states
supremacy in establishing and enforcing the water rights within
their jurisdictions, and the power to amend laws, in direct
defiance of Congress, including changing the fundamental terms
of executive jurisdictions.
These proposals not only threaten to upend 150 years of
state water laws, but to present us with a constitutional
crisis the significance of which cannot be overstated. To add
arrogance to injury, the Agencies responsible for these
proposals have refused the invitation of this subcommittee to
explain themselves and their conduct, submitting at the last
minute fatuous and wholly unresponsive written testimony.
Their absence speaks volumes about their lack of defense
for these proposals and makes a mockery of this
administration's pledge for transparency.
These proposals must be withdrawn, and there is bipartisan
support to do just that. Many Democrats have joined Republicans
to urge this administration to withdraw the ``Waters of the
U.S.'' proposal. Chairman Hastings and many members of the
Natural Resources Committee and the House and Senate Western
Caucus are sending a letter today urging the Agriculture
Secretary to withdraw its Forest Service Groundwater Directive.
We will pursue legislation through both the appropriation
and authorization powers of Congress to stop this
unconstitutional and illegal overreach.
I believe that these proposals open a new chapter in
executive agencies running amuck, seizing powers by their own
edicts that have been specifically denied them by the
legislation that created them in the first place. They
fundamentally alter the relationship between the legislative
and executive branches, and the relationship between the states
and the Federal Government, all in a manner wholly antithetical
to the structure and construct of our system of checks and
balances and of the sworn duty of every official to abide by
the laws and the Constitution.
With that I yield back the balance of my time and recognize
the Ranking Member, Mrs. Napolitano, for 5 minutes.
STATEMENT OF THE HON. GRACE F. NAPOLITANO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Napolitano. Thank you, Mr. Chairman.
Today's hearing focuses on the two proposed rules by the
administration, the proposed definition of ``Waters of the
United States'' under the Clean Water Act, and the Forest
Service's Groundwater Directive.
I am proud to serve on this subcommittee as well as the
Water Resources and Environment Subcommittee and on the
Transportation and Infrastructure Committee. The Transportation
Committee's Water Resources Subcommittee has jurisdiction over
the Clean Water Act, not Natural Resources.
I attended the Water Resources Subcommittee hearing 2 weeks
ago regarding the administration's proposed rulemaking on the
term ``Waters of the United States.'' Some of the topics being
brought up by witnesses today had already been totally
addressed at the Transportation and Infrastructure hearing, and
some of the issues have also already been addressed in last
week's Agricultural hearing. This will be the third time we
will be discussing many of these same concerns.
While I support the proposed ``Waters of the United
States'' rule, I also know that the rule is complex and
complicated. Numerous stakeholders have raised valid concerns,
and I repeat, valid concerns, about the potential implications
of this particular rule or rules. We want to help our
constituents to get the clarity they need to alleviate their
concerns.
Both the ``Waters of the United States'' and the Forest
Service's Groundwater Directive are not final. Both are in the
process of public comments. EPA recently announced that the
public comment for the ``Waters of the United States'' will be
extended through October of this year, and we urge all of the
witnesses who are interested to provide public comment in this
process or be part of the process and submit your comments so
that the agencies may fully consider all of the concerns.
I would also ask that as you finalize your comments that
you share them with this committee so that we may also better
understand your concerns. It is really important for all of us
to be able to have information on both sides so that we can
better deal with this issue here in Congress.
And I thank you for our witnesses, to all of them, for
being here today. I hope you have a good trip going home.
Thank you, and I yield back.
Mr. McClintock. The Chair is now pleased to recognize the
Chairman of the Natural Resources Committee, Chairman Doc
Hastings of Washington.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Mr. Hastings. Thank you, Mr. Chairman, and thank you for
the courtesy in allowing me to participate in your subcommittee
hearing.
Today's examination of how proposed Federal regulations
will impact multipurpose land and water uses on and off Federal
lands is important when it comes to protecting and expanding
our water and power supplies.
Republicans on the Natural Resources Committee have pursued
an ``all of the above'' agenda not only on energy, but for
water supply also. Our efforts to provide future supplies from
new or expanded water storage, canals, conservation, and
efficiency through common sense regulatory improvements and
financial incentives is the exact opposite approach that has
been taken by this administration.
We can foster water development for people and species if
the Federal Government chooses not to erect hurdles to new
projects. Yet the two proposals in front of us--the EPA's
``Waters of the United States'' and the Forest Service's new
Groundwater Directive do nothing more than make it more
difficult to rehabilitate or build new projects that benefit
agriculture, municipalities, species, and habitat.
Our witness before us today, Mr. Larry Martin, who lives
and works in the Yakima Valley in my Central Washington
District and representing the National Water Resources
Association will testify today about the benefits of the Yakima
River Integrated Water Resource Management Plan.
This diverse, stakeholder-based approach could provide new
and expanded water storage to help both people and fish in that
part of Washington. Yet, you will hear today the Forest Service
top-down Groundwater Directive could, and I quote, ``delay or
derail the implementation of this vital, innovative, and
broadly supported plan'' because the reservoir improvements are
on Forest Service lands.
To make matters worse, EPA's ``Waters of the U.S.''
proposal could shut down development on a broad scale outside
of Federal lands. We are told that the proposal does not impact
irrigation districts, canals, ditches. Yet this Washington, DC-
based regulation has so many ill-defined terms in its
regulation that it will make it much easier for litigious
groups to sue and, therefore, stop such projects, even projects
such as conservation and efficiency projects.
This administration's mantra seems to be that if it flows,
even for a few weeks out of the year, then it must be regulated
by the Federal Government. Yet the administration's failure to
defend these proposals to the American people and to this
subcommittee today is telling. It is telling especially so in
the face of the water and power experts before us who must live
on the front lines of Federal regulations every day.
So I commend the witnesses for traveling here today to
enlighten this committee and, by extension, the House of
Representatives on how such ill-conceived regulations would add
cost to consumers and may actually harm the environment, and I
commend the Subcommittee Chairman for holding this hearing.
And I yield back my time.
Mr. McClintock. I thank the Chairman.
The Chair now recognizes the Ranking Member of the House
Natural Resources Committee, Mr. DeFazio of Oregon, for 5
minutes.
STATEMENT OF THE HON. PETER DeFAZIO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. I thank the Chairman.
I would just like to put a little bit of why we are here
today in context. When I was a kid, the Willamette River in
Oregon was an open sewer, and back East they actually had signs
posted at bridges when you drove over them saying ``Flammable
object below. Do not throw lighted objects, i.e., cigarettes,
from bridge.'' Those were rivers, and they caught fire, most
famously the Cuyahoga and others.
So the Nation came together and we adopted the Clean Water
Act. The Clean Water Act has never been reauthorized. I was
involved in an exercise in 1994 on the Transportation, then
called the--gosh, I do not know. It has changed its name a
number of times--Public Works Committee, I think, and it was
back in the days when we really legislated or attempted to. It
was in 1995 actually. The Republicans had taken over, and it
was their version of a bill. It went on for 5 days, dozens and
dozens of amendments and debate.
The bottom line of the bill they proposed, which never was
brought to the Floor because it was a very radical change, was
that users should be responsible, not polluters. That was
rejected back then.
So I think there is consensus that we want to prevent
pollution. We want to prevent degradation. We want to prevent
wetland loss and all the associated problems with that. It is
an immensely difficult, complicated issue. You know, we have
had two Supreme Court cases. We have had guidance and then we
have had new guidance, and then we have had a former proposed
withdrawn rule, and now we have a proposed rule.
So what I caution the witnesses here today is, this is a
proposed rule. That means that it is out for comment. The
comment period has been extended. I welcome you to provide us
specifics today about problems. There are problems, I believe,
with some definitions in the bill, but I am hearing about
problems that are no longer covered by the bill.
Specifically, I raised a whole issue about rills and
basically runoff, gullies, rills, et cetera, which I felt in
the former guidance and in some former proposed legislation by
our deceased colleague, Jim Oberstar, I think would have been
covered. In Oregon it rains a lot, and we have sloat. Those
would have been specifically exempted.
Some other things seem to have been exempted, but they are
not really defined. So we are not sure if they are exempted,
and those things merit, many things merit exemption. Ornamental
ponds, those things seem to have been taken care of, but I am
still hearing about that.
So I want to hear about real problems with the proposed
rule and things that are common sense that need to be changed,
simplified, clarified so that we do not end up in court again.
We do not want to go to court again. We want to protect our
waters. We want to protect our wetlands. We want to provide for
future generations, and you know, lawyers can get plenty of
other business out there. Let us get this one right.
So those are the kinds of concerns and comments I would
like to hear today and in the ensuing couple of months before
the comment period closes, productive ideas, not just like
``no,'' you know, ``no, no.'' ``No'' is not helpful, but here
is a problem with what you are doing and how it relates to
farming. Here is a problem with forestry. Here is a problem
with power production, all legitimate activities.
I mean, if there is a problem with wastewater, which I
think they may have taken care of, but again, it is a very
complicated rule with the handling of wastewater and water
recycling and that; I think they have taken care of it, but
maybe there is some point that they have not really taken care
of exempting those activities. So those are the sorts of
comments I would like to hear today.
With that, Mr. Chairman, I thank you for the time.
Mr. McClintock. The Chair is now pleased to recognize the
gentleman from California, Mr. LaMalfa, for 5 minutes.
STATEMENT OF THE HON. DOUG LaMALFA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. LaMalfa. Thank you, Mr. Chairman.
I appreciate this hearing today. It is very timely and very
key from what we hear are some proposals out there. It is
important that we do this because I believe the EPA is
attempting to seize control of virtually all land use in the
United States through this extremely creative interpretation of
the law.
The EPA views the rule so expansive that the draft included
an exemption for puddles, which has since been removed. Does
this mean the administration now intends to regulate puddles?
It certainly appears to be the case.
It is especially interesting to see the administration use
the Clean Water Act as part of the pretext to expand its
jurisdiction as it routinely ignores this law in its day-to-day
activities. We have seen Federal agencies, none of whom
bothered to show up today, attack activities that are
specifically exempted in the Act, exempted in the Act from
regulation, particularly farming activities like maintaining
irrigation systems.
An example we have in northern California, a family's
effort to shift from ditch irrigation to a more efficient pipe
irrigation which one would think this administration would like
and support, water efficiency and all of that. This effort was
stymied when Federal agencies argued that the work would
somehow negatively impact the Sacramento River. Never mind that
the Sacramento River is 7 miles away from this project. Any
possible sediment runoff effect could be collected, would be
collected in a manmade pond that the family has on their
property with no outlet from that pond. So there is no
connection between these fields and a 7 mile away river. The
family is forced to spend thousands of dollars to fight
regulations that do not even exist on this.
We have seen the administration splitting hairs to a
ridiculous degree when it comes to other exempted agriculture
activities, especially plowing fields. It has decided in some
cases plowing to a certain depth is, in fact, not plowing
despite the fact the tool used for the work is a plow.
Mr. Chairman, it is not an exaggeration to say that the
administration's proposal would insert Federal control into
land use decisions in virtually all of California and the
Central Valley. The proposed ``Waters of the United States''
rule would give the Federal Government control over every
tributary of every navigable water and tributaries to those
streams and even unconnected bodies of water which are adjacent
to such waters.
The administration also claims control over every area of
dry land that is subject to inundation under moderate to high
flows, which effectively would include the entire Central
Valley. Again, a lot of room for interpretation, ``subject to
inundation under moderate to high flows,'' what does that even
mean?
Combining these areas with the riparian areas along every
natural or artificial tributary to navigable rivers and their
tributaries, which would include every waterway in the Central
Valley and certainly most waterways in the Sierra Nevada and
Cascade Mountain ranges. You begin to get a picture of the
impact we are talking about.
The rule would create Federal control of a vast portion of
the state, including areas far from any waterway considered to
be navigable. There is a word that really needs to be defined
or re-defined in my opinion, ``navigable.''
Do Americans truly want the Federal Government to decide
whether they can remodel their home or landscape their
backyard? Do Americans want the Federal Government deciding
that some plowing is not actually plowing? Do Americans want
the Federal Government in the guise of unelected, unaccountable
bureaucrats that do not tend to show up in front of the
people's elected body, to decide that they cannot operate a
business, maintain roads, clear brush or simply continue
farming the land as they have always done for generations?
This is a proposed rule that the people need to weigh in
upon. We do need to say ``no'' to proposed rules. ``No'' can be
helpful because they do not enforce the rules, the laws right
as it is now, not consistently and not where people are
landowners that come and complain to me about, could not even
tell what they are supposed to do to comply. They do not hear
back for months. They cannot get definitive answers, and yet
this group wants to move forward and regulate to an even wider
range than what they have right now. They do not follow their
own rules.
Mr. Chairman, I do not believe that is what the American
people want. So I yield back. Thank you.
Mr. McClintock. The chair now recognizes Mr. Smith of
Missouri for 5 minutes.
STATEMENT OF THE HON. JASON SMITH, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MISSOURI
Mr. Smith. Thank you, Mr. Chairman. Thank you for convening
this hearing today on two key issues facing my constituents,
the so-called ``Waters of the United States'' rule currently
being advanced by the EPA and the Corps of Engineers, and the
Forest Service Groundwater Directive.
I want to thank the witnesses who took the time to be here
today, including Mr. Roger Clark from Missouri. Roger is the
Director of Engineering and Operations of Associated Electric
Cooperative in Springfield, Missouri.
Associated, through their member cooperatives, is the
source of electricity for most of my constituents.
These witnesses' presence today stands in stark contrast to
the Federal agencies charged with either proposing these rules
or having to live them who failed to even show up today. If
this administration cannot be bothered to explain these
proposed regulations to this committee and answer simple
questions from Republicans and Democrats in front of this panel
of assembled experts, how can we expect them to explain these
regulations to our affected constituents? They cannot and they
are not.
I have joined with my colleagues and other members of this
committee to ask the administration to withdraw both the
proposed ``Waters of the United States'' rule and the new
Forest Service groundwater rule. If this administration is not
prepared to explain or defend these rules today, then perhaps
it is time that these rules were withdrawn.
To call these issues important to my constituents would be
an understatement. Water is everywhere in southeastern
Missouri. Much of my district used to be a swamp, but now that
it has been drained, it is one of the most productive and
diverse agriculture areas in the Nation. We grow everything but
citrus and sugar.
Agriculture is the number one industry in Missouri and
about one-third of Missouri's agriculture income is produced in
the seven Boot Hill counties in the Eighth Congressional
District which used to be swampland. Instead of a swamp, there
are now over 1,000 miles of manmade ditches draining 1.2
million acres of farmland.
Applying the Federal permitting process to every pond,
gully, dry creek bed, irrigation ditch, puddle or other similar
collection of water would be a huge increase in our regulatory
burden. The government regulators claim that these are
exemptions in the rules for these ditches and other manmade
collections of water, but these exemptions are not well defined
leaving many to believe that they may not be exemptions clearly
at all.
I have many questions about these so-called exemptions and
how they would apply. Unfortunately, this administration did
not send anyone here today to answer any questions.
In addition to this rich agriculture area of southeast
Missouri, my district also contains large sections of the 1.5
million acre Mark Twain National Forest. The Forest Service
groundwater rule that we are discussing today would require
consideration of the effects on the groundwater resources on
Forest Service lands of all proposed and authorized groundwater
uses prior to the authorization or re-authorization of their
use.
Additionally, the Directive assumes that groundwater and
surface water have a hydrological connection. What does this
mean? If these rules go through as is, now the Forest Service,
the EPA, and the Corps of Engineers may all get involved in
regulating a drainage ditch that only holds water 2 months out
of the year because there is a hydrologic connection between
the ditch and the groundwater in the Mark Twain National
Forest.
Let me remind you that my district has around 1,000 miles
of these ditches. These rules are so vaguely written and so
expansive that if they were proposed by anyone other than this
administration, I might be shocked. Unfortunately, this process
has become all too familiar.
I hope that this hearing today will help to further the
case that these regulations are executive overreach in its
worse form and that they should be withdrawn immediately before
they have the chance to severely harm the farmers, small
business owners, and individuals in my district that use and
work on a daily basis their land.
Thank you, Mr. Chairman. I yield back the remainder of my
time.
Mr. McClintock. I thank the gentleman.
If there are no further opening statements, we will now
hear from our panel of witnesses. Each witness's written
testimony will appear in full in the hearing record. So I would
ask witnesses to keep their oral statements to 5 minutes as
outlined in our invitation letter to you under Committee Rule
4(a).
We have some helpful timing lights to keep you within those
parameters. The yellow light indicates there is 1 minute
remaining, and the red light indicates that your time has
expired.
Before we begin, I would like to note that Forest Service
Chief Tom Tidwell and Mr. Lowell Pimley, the Acting
Commissioner of the Bureau of Reclamation, were invited to
testify at today's hearing, as I indicated in my opening
statement and Mr. Smith referenced. The administration has
provided witness statements from these agencies, yet failed to
provide a witness to answer any questions stemming from that
testimony.
That said, I now recognize Mr. Lawrence Martin, the
attorney at the Halverson Northwest Law Group and representing
the National Water Resources Association from Yakima,
Washington, to testify.
You are recognized for 5 minutes.
STATEMENT OF LAWRENCE MARTIN, ATTORNEY, HALVERSON NORTHWEST LAW
GROUP, YAKIMA, WASHINGTON, REPRESENTING THE NATIONAL WATER
RESOURCES ASSOCIATION
Mr. Martin. Thank you, Mr. Chairman and members of the
subcommittee. Thank you for giving me the opportunity to appear
today.
My name is Larry Martin. I am here on behalf of the
National Water Resources Association. NWRA represents state
associations, irrigation districts, other water providers, and
their collective interests in the management of irrigation and
municipal water supplies in the western states.
We fully support the need for keeping our water safe and
clean, not only for purposes of crop production, but also for
drinking water and fish and wildlife habitat.
I will focus on the proposals regarding the definition of
the ``Waters of the U.S.'' and management of U.S. Forest
Service groundwater, but I must mention that these are only two
of the pending rules. Water users are also struggling to review
and comprehend Forest Service directives on BMPs and ski area
water rights, and three other draft rules and policies related
to the Endangered Species Act.
All of these proposals have the potential to seriously
impact water users. These are not easy reads. They are highly
technical documents that cited numerous studies.
The proposed ``Waters of the U.S.'' rule continues to
expand Federal and legal jurisdiction to the detriment of local
communities and water users who rely on the efficient delivery
of water for crops, jobs and our economy. The agencies may
claim the proposed rule will provide clarity to regulated
entities. That assertion is contradicted by the imprecise terms
contained in the rule.
Despite its length, the proposal creates more questions
than answers on whether a minor body of water is a ``Water of
the U.S.'' and has the potential to expand Federal jurisdiction
over thousands, if not millions, of acres.
Compliance with permitting requirements can take years and
cost many thousands of dollars. These costs cannot be avoided
because the Act imposes criminal liability and civil fines on a
broad range of ordinary activities.
We do commend the agencies with proposing exemptions from
Federal jurisdiction. However, the uncertainties in some of the
definitions provide only vague answers as to whether certain
waters will be excluded. Every year irrigation districts, water
companies and farmers perform routine maintenance work on
thousands of miles of canals and ditches. If required to obtain
a permit for each such activity, these routine activities will
become anything but routine.
One of my clients is in the Sunnyside Valley Irrigation
District (SVID) in the Yakima Valley. It serves nearly 100,000
acres of the most productive farm ground in the Nation growing
hops, apples, cherries, grapes, mint, and other important food
crops. SVID has received numerous awards for its environmental
and conservation activities. Its conservation project has
increased efficiencies to its farmers, plus will return over
43,000 acre-feet per year for ensuring flows to the Yakima
River.
Despite its leadership, SVID was the unfortunate subject of
the uncertainty regarding ``Waters of the U.S.'' SVID was
performing routine maintenance to fix an erosion and a drainage
issue in a ditch. This activity is likely performed on an
almost daily basis by other irrigation providers in the West.
The Corps advised SVID the ditch was subject to jurisdiction
and was told to return the ditch back to its original, but not
working condition. The Corps added that in its opinion, the
work performed on the ditch was not necessary.
After 4 years of negotiation, numerous meetings, and trips
to Washington, DC to meet with EPA and the Corps, and the
issuance of a new regulatory guidance letter, SVID was
eventually advised its work on the ditch did not require a
permit.
Similar situations to SVID's experience will continue to
occur until there are clear definitions distinguishing between
jurisdictional waters. Irrigation ditches were never intended
to be considered a ``Water of the U.S.,'' and the final rule
should expressly provide that exclusion.
Similarly, reclamation and reuse facilities should also be
exempt. I have submitted for those reclamation facilities in
California which under the proposed rule will likely now be
jurisdictions.
NWRA is also concerned with the new Forest Service
Groundwater Directive which is contrary to longstanding Federal
policy respecting the roles of states and private property
rights in regulating groundwater. This directive was developed
without any meaningful outreach to water users, many of which
have existing water systems on Forest Service lands.
The Directive would place additional permitting
requirements on water infrastructure and will make meeting
current and future needs and responding to climate variability
more difficult and expensive.
We are also concerned that the Forest Service will attempt
to tie permit approval to the modification of a state-issued
water right and has the real risk of jeopardizing the
integrated plan in the Yakima Basin. NWRA members will continue
to meet their obligations to provide an efficient and safe
water supply and remain dedicated to the protection of our
natural resources.
Unfortunately the rules expand Federal jurisdiction,
imposing additional regulatory burdens on water suppliers.
On behalf of NWRA's members, I thank you for your attention
to the critical water supply issues.
[The prepared statement of Mr. Martin follows:]
Prepared Statement of Lawrence E. Martin, Attorney, Halverson Northwest
Law Group, Yakima, Washington, submitted on behalf of the National
Water Resources Association
introduction
Chairman McClintock, Ranking Member Napolitano, and members of the
subcommittee, thank you for giving me the opportunity to appear before
you today, and for your attention to the many water challenges facing
our Nation. My name is Larry Martin and I am here on behalf of the
National Water Resources Association; more commonly known as NWRA. NWRA
represents state associations, irrigation districts, other water
providers, and their collective interests in the management of
irrigation and municipal water supplies in the western states. NWRA
members provide clean water to millions of individuals, as well as
families, agricultural producers and other businesses. For more than 80
years our members have worked to provide water in a manner that
provides both economic and ecosystem benefits to communities in the
West.
NWRA and its many members are stewards, dedicated to the efficient
management of water supplies; one of our country's most important
resources. I am the Co-Chair of the Regulatory Committee for NWRA, and
serve as a member of the Federal Affairs, Water Quality, and Litigation
Task Forces. NWRA has long been involved in matters regarding the
administration of the Clean Water Act (``Act'' or ``CWA'') and its
interpretation by the Courts, and regularly provides briefings for
Congressional staff. NWRA is committed to working with the agencies to
provide a clearly defined, efficient process for all permitting
requirements.
NWRA members have historically been, and will continue to be
supporters of the goals of the Clean Water Act. NWRA members fully
understand and support the need for keeping our waters safe and clean,
not only for purposes of crop production, but also for drinking water,
fish and wildlife habitat, and recreational uses. To further those
goals, NWRA members continue to make necessary improvements to their
systems to increase efficiencies, conservation, and environmental
protections. In my testimony this morning I will focus on the recently
proposed rule regarding the definition of the ``Waters of the United
States'' and its impacts on Bureau of Reclamation customers. I will
also discuss a U.S. Forest Service groundwater proposal that, as
currently drafted, has the potential to undermine state rights,
increase the cost of water, and make meeting future water supply needs
more difficult.
I have limited time today, so I will focus my comments on the Clean
Water Act and groundwater proposals. But I would do the committee and
water users a disservice if I failed to mention that these are only two
of the numerous pending rules, regulations, or policies proposed by the
agencies that are currently out for comment. As I sit here today water
users are struggling to review, comprehend, and comment on:
Proposed Rule: Definition of ``Waters of the United
States'' Under the Clean Water Act
Proposed Directive: Proposed Directive on Groundwater
Resources Management, Forest Service Manual 2560
Proposed Directive: Proposed Directives for National Best
Management Practices for Water Quality Protection on
National Forest System Lands
Proposed Rule: Ski Area Water Rights on Forest Service
Lands
Proposed Rule: Listing Endangered and Threatened Species
and Designating Critical Habitat; Implementing Changes to
the Regulations for Designating Critical Habitat
Draft Policy: Policy Regarding Implementation of Section
4(b)(2) of the Endangered Species Act
Proposed Rule: Interagency Cooperation--Endangered Species
Act of 1973, as Amended; Definition of Destruction or
Adverse Modification of Critical Habitat
All of these proposals are currently open for comment and have the
potential to seriously impact water users. These provisions are not
easy reads; they are highly technical documents that cite numerous
studies, which in some cases are not even finalized. As an example of
the kind of document we are reviewing, let me read one sentence from
the ``Definition of Destruction or Adverse Modification of Critical
Habitat.'' It states: ``Therefore, an action that would preclude or
significantly delay the development or restoration of the physical or
biological features needed to achieve that capability, to an extent
that it appreciably diminishes the conservation value of critical
habitat relative to that which would occur without the action under
going consultation, is likely to result in destruction or adverse
modification.'' This is just one sentence from the hundreds of pages of
regulations currently out for comment.
All of these regulations have come out within the last few months,
the same time that many of NWRA's members are busiest, focusing on
irrigating, planting and growing crops that feed and clothe our Nation.
I do not understand how the agencies expect our Nation's farmers and
ranchers to meaningfully review and comment on all of these
regulations. We want to work collaboratively with our Federal partners
to provide meaningful comment, but the sheer mass and complexity of
these regulations makes that charge exceedingly difficult. We have
asked for extensions or will ask for extensions to all of these comment
periods in coming weeks. I hope the agencies will heed this request;
otherwise I fear this recent flood of regulation will drown
agricultural and municipal water users in red tape.
nwra position on proposed rule on ``waters of the united states'' under
the clean water act
The proposed rule by EPA and the U.S. Army Corps of Engineers (the
Corps) continues to expand the historical scope of Federal jurisdiction
under the Clean Water Act, and the various Court decisions interpreting
the Act. This jurisdictional creep has been to the detriment of local
communities and water users who rely on the efficient delivery of water
for crops, jobs, and our economy. The reach and scope of the Clean
Water Act's jurisdiction has kept EPA and the courtrooms busy. Despite
the jurisdiction limitations contained in the original 1972 Act, and
the judicial recognition by the U.S. Supreme Court in SWANCC and
Rapanos that jurisdiction is not unlimited; the proposed rule goes
beyond what was intended with the passage of the Clean Water Act.
The agencies may claim the proposed rule will provide clarity to
regulated entities. That assertion is contradicted by the imprecise
terms and broad definitions contained in the proposed rule, along with
the agencies' statements that they will use their ``best professional
judgment and experience'' to interpret the terms. Instead, despite its
length, the proposal creates more questions than answers on whether a
minor body of water is a ``Water of the U.S.'' The primary question is
why is it necessary to expand jurisdiction to local waters that have
marginal connections to traditional navigable waters?
Another question is whether there is any appropriate cost/benefit
balance to increasing jurisdiction over remote and intermittent waters?
The proposed rule has the potential to expand categorical Federal CWA
jurisdiction over thousands, if not millions, of acres of property, and
will likely encourage litigation over the scope of the rule. If adopted
as presently proposed, the rule will increase costs and regulatory
burdens on farmers, business, private and public landowners, and state
and local governments by expanding the types of water bodies that
require CWA permits. The proposed rule will also increase the risk of
citizen suits due to the expanding scope of jurisdiction and regulatory
questions raised by the rule.
The proposed rule would change the Clean Water Act and dictate that
the following waters will always be jurisdictional:
All tributaries, including any waters such as wetlands,
lakes, and ponds, that contribute flow, either directly or
through another water, to downstream traditional navigable
waters or interstate waters.
All waters adjacent to such tributaries. The proposed rule
broadly defines ``adjacent'' to include all waters located
within the ``riparian area'' or ``floodplain'' of otherwise
jurisdictional waters, including waters with shallow
subsurface hydrologic connection or confined surface
hydrologic connection to jurisdictional water.
All man-made conveyances, including ditches, would be
considered jurisdictional tributaries if they have a bed,
bank and ordinary high water mark and flow directly or
indirectly into a ``Water of the U.S.'' regardless of
perennial, intermittent, or ephemeral flow.
The extension of jurisdiction to these water features has
implications for farming, permitting, land use options, and required
mitigation. Water suppliers and private and public landowners will
experience costs and delays associated with additional permits,
restrictions on options, and the continued uncertainty on the scope of
jurisdiction. Until the rule provides the specificity needed, persons
will still be subject to the sometimes inconsistent interpretations
offered by Corps of Engineer personnel. As often cited from the Rapanos
decision, a 2002 study reported the average applicant for an individual
permit spent 788 days and $271,596 in completing the process, and the
average applicant for a nationwide permit spends 313 days and $28,915--
not counting costs of mitigation or design changes. Close to $2 billion
is spent each year by the private and public sectors obtaining wetlands
permits. These costs cannot be avoided, because the Clean Water Act
imposes criminal liability, as well as steep civil fines, on a broad
range of ordinary activities. Expanding the scope of the Act to
additional and uncertain jurisdictional water bodies will only increase
those costs and delays.
We do commend the agencies with proposing categorical exemptions
from Federal jurisdiction; however the uncertainties and lack of
specificity in some of the definitions provide only vague answers as to
whether certain waters will be considered excluded from the scope of
``Waters of the U.S.''
For example, artificially irrigated areas that would
revert to upland should water application cease are exempt,
but there is no definite clarification as to what qualifies
as an ``upland.''
The proposed rule also properly excludes ``groundwater''
from its definition of ``Waters of the United States,'' but
it does not reconcile that exclusion with its inclusion of
certain waters based on a ``subsurface'' (groundwater)
connection.
Other exclusions that are not clearly defined include:
gullies, rills, non-wetland swales; and certain types of
upland ditches, or those ditches that do not contribute
flow to a ``Water of the U.S.'' Again, key terms like
``uplands'' and ``contribute flow'' are undefined. For the
people I represent, it is imperative that the rule define
how currently exempt ditches will be distinguished from
jurisdictional ditches. The proposed rule needs greater
clarity, ensuring that the historic exemptions for
irrigation ditches and associated infrastructure are
retained.
I represent numerous irrigation districts, water companies, and
farmers in Washington State. The most critical element to my clients'
livelihoods is the reliable, safe, and efficient delivery of water for
the production of food and crops. In 2011, the total production value
for the 17 states comprising the western U.S. region was about $171
billion; with about $117 billion tied to irrigated agriculture. There
is approximately 42 million irrigated acres for the western United
States.\1\
---------------------------------------------------------------------------
\1\ ``The Economic Importance of Western Irrigated Agriculture''
Water Resources--White Paper, prepared by Pacific Northwest Project,
August 2013.
---------------------------------------------------------------------------
Irrigation water providers, and farmers that rely on those waters,
use a distribution system of canals, ditches, and drains to move water
efficiently and reliably for crop production. It is mandatory that such
ditches be maintained in a proper manner. As the committee is well
aware based on recent droughts, any lack of water during critical
periods can be disastrous to crops, farmers, and our economy.
Irrigation ditches were never intended to be considered a ``Water
of the United States'' and yet the proposed rule perpetuates the
misconception. According to the majority opinion written by Justice
Scalia in Rapanos; ``Waters of the United States'' was intended to be
limited to ``relatively permanent, standing or flowing bodies of water.
The definition refers to water as found in `streams,' `rivers,'
`lakes,' and `bodies' of water `forming geographical features.' ''
Justice Scalia goes on to say that phrase does not include,
``ordinarily dry channels through which water occasionally or
intermittently flows.'' Nor are man-made irrigation and drain ditches
to be included as ``Waters of the United States.''
Irrigation facilities such as canals and drains are distinct from
natural waters both in their ``nature'' and their ``purpose.''
Irrigation ditches are constructed conveyances regularly maintained for
the purpose of delivering irrigation water or draining agricultural
lands. The purpose of drain ditches is to remove the surface and
subsurface flows that are present only because of the application of
irrigation water. Irrigation and drainage facilities cannot fairly be
characterized as either streams, rivers, lakes or other bodies of water
forming natural geographical features. These are artificial facilities
created for the purpose of irrigation and drainage. Normally, these
channels would otherwise be dry, but for the application of irrigation
water to produce crops.
Where irrigation drains carry water on a more permanent basis it is
due primarily to groundwater that is not jurisdictional to the Clean
Water Act. Most irrigation return flows return subsurface to irrigation
drains. The Corps regulatory approach would appear to control drains,
but if the continued flow in a drain is from groundwater, it is not
surface water, and therefore not jurisdictional. Irrigation drains
would not have the necessary surface connection with navigable waters,
but for the groundwater contribution caused by irrigation return flows.
Since the Clean Water Act is concerned with surface water and not
ground water, the flow in irrigation ditches and drains does not meet
the ``significant nexus'' requirement with navigable waters, and should
be specifically and clearly excluded from permitting requirements.
The primary goal of any rulemaking should be to clarify the scope
of the Federal agencies' jurisdiction under the Act. In particular, the
agencies should make clear that irrigation canals, ditches and drains
are not navigable waters, are not ``Waters of the U.S.,'' and are not
``tributary'' to waters of the United States, consistent with the 1975
and 1977 regulations. The Act specifically excludes ``return flows from
irrigated agriculture'' from the definition of ``point source''. 33
U.S.C. Sec. 1362(14); CWA Sec. 502(14). The Act also exempts ``return
flows from irrigated agriculture'' from the NPDES permit requirements.
33 U.S.C. 1342(l)(1); CWA Sec. 402(l)(1). Similarly, permits for
dredged or fill material are not required ``for the purpose of
construction or maintenance of . . . irrigation ditches, or the
maintenance of drainage ditches''. 33 U.S.C. Sec. 1344(f)(1)(C); CWA
Sec. 404(f)(1)(C).
The words chosen by Congress and the intent of the Act are clear:
irrigation canals, ditches, and drains were not meant to be regulated
under the Clean Water Act. This was reflected in the 1975 and 1977
regulations, which provided that ``manmade nontidal drainage and
irrigation ditches excavated on dry land are not considered waters of
the United States.'' 40 Fed. Reg. 31,321 (1975); 33 CFR
323.2(a)(5)(1982). This is the only practical approach for irrigation
canals, ditches, and drains under the statutory scheme of the Clean
Water Act. Congress has not expanded the Federal agencies' jurisdiction
under the Clean Water Act since the initial regulations were
promulgated in the 1970s. As a result, the Federal agencies should
implement Congress' determinations in their rulemaking, through the
inclusion of an express exemption for irrigation canals, ditches, and
drains from the definition of navigable waters, ``Waters of the U.S.,''
and tributary waters.
The Federal Government has a vested interest in seeing that its
Federal reclamation facilities are maintained in a condition that
allows irrigation districts to properly operate and maintain their
facilities for the continued conveyance of agricultural waters, and the
drainage of these waters, to protect the water users and the public
from deterioration and failure of these facilities. Irrigation
Districts and water providers maintain thousands of miles of canals and
ditches and perform routine maintenance work in their conveyance
facilities every year. If the Districts and water providers are
required to obtain a CWA permit for each such activity, these routine
activities would become exponentially more expensive, time consuming,
and difficult. Irrigation Districts and water providers are also
required to make more extensive improvements in the form of
rehabilitation or replacement of some of the works from time to time.
As demand for water in the West grows, water conservation activities
such as lining or piping canals and drains are also commonplace
activities. Without the ability to conduct these necessary activities,
free from time consuming and costly Federal processes, agricultural
water delivery, and many of the efforts aimed at improving efficiencies
and conserving water, would be severely challenged, if allowed at all.
Additionally, many of these facilities provide a flood control
function. In such cases, regular maintenance activities to maintain
channel capacity are necessary to protect life and property, and
prevent serious flood damage to property. The proposed rule should
focus on limiting the regulatory uncertainty of ``Waters of the U.S.''
and jurisdiction, and not create unnecessary burdens on entities such
as irrigation districts and water suppliers, whose purpose and
facilities have no relationship to the originally envisioned scope of
the Clean Water Act.
An increase in jurisdiction asserted by Federal agencies also
increases the costs to the consumers--both agricultural and municipal
users. This includes increased food costs to all, many of whom are
least able to absorb the costs. These costs come without any real
improvements in water quality and will likely divert resources away
from improvements to other water quality issues.
sunnyside valley irrigation district
One of my clients is the Sunnyside Valley Irrigation District
(``SVID''). SVID serves nearly 100,000 acres of land in the lower
Yakima Valley. It provides water to some of the most productive
farmground in the Nation with its farmers growing apples, cherries,
pears, grapes, mint, hops, and other important food crops.
Many years ago the Sunnyside Valley Irrigation District, along with
the neighboring Roza Irrigation District joined together to voluntarily
address water quantity and water quality projects. In a short 5-year
period, 95 percent of the suspended sediment was removed from the
return flows discharging back to the Yakima River. Twice the Irrigation
Districts have received the State of Washington's Environmental
Excellence Award. Additionally, SVID has participated in a multi-year
conservation project through the Federal Yakima River Basin Water
Enhancement Project Act. This conservation project has increased
efficiencies to its farmers within the project, plus will return over
43,000 acre feet per year for instream flows to the Yakima River for
purposes of fish and other environmental benefits. The conservation
program by SVID has received broad support from all parties in the
Yakima River basin and has been recognized with awards both locally and
nationally.
Despite its leadership role in water conservation and improvements
to water quality, SVID was the unfortunate subject of the uncertainty
regarding ``Waters of the United States'' and jurisdiction by the
Federal Government. In 2004, SVID was performing routine maintenance in
a ditch within its system. Because the ditch had meandered over the
years, it was creating erosion and drainage issues which needed to be
fixed. The ditch was straightened and armored with rock to correct the
problem. The activity performed by SVID was a routine action which is
likely performed on an almost daily basis by other irrigation providers
in the West. In SVID's 100 years of existence, at no time had it been
advised that a Section 404 permit would be needed for such routine
work. Later, a complaint was filed with the Army Corps of Engineers.
The Corps investigated and advised SVID that project ditches were
``Waters of the U.S.'' and therefore subject to the Corps' Sec. 404
permitting process.
SVID was advised by the Corps that SVID's only option was to return
the ditch back to its previous improperly working condition, and any
permit request by SVID to do the repair work was likely to be denied.
Despite its lack of expertise in the management of irrigation waters,
the Corps added that in its opinion, the work performed on the
irrigation ditch by SVID was not necessary or justified. The Corps also
advised SVID that virtually all of the operation and maintenance
activities that take place on a daily basis are subject to Corps
jurisdiction; meaning that even if such activities were to fall under
an exemption, contact must be made with the Corps for them to make that
determination. In other cases where permits could be required, it was
made clear the Corps would not approve much of the regular and
necessary work needed by the Irrigation District to maintain its canals
and ditches, and that requesting a permit to do such work could be
futile.
After 4 years of negotiation, numerous meetings and trips to
Washington, DC to meet with EPA and the Corps, and the issuance of the
Corps Regulatory Guidance Letter 07-02, Exemptions for Construction or
Maintenance of Irrigation Ditches and Maintenance of Drainage Ditches
Under Section 404 of the Clean Water Act; the Corps eventually advised
SVID that its work on the ditch did not require a permit. SVID and
other water suppliers can neither afford to wait 4 years nor afford the
costs for determinations as to whether a permit is required.
We commend any attempt by the agencies to avoid similar
circumstances from occurring again, but remain concerned the proposed
rule contains uncertainties as to what is covered. Similar situations
to SVID's experience will continue to occur until there are clear
definitions distinguishing between jurisdictional waters. The final
rule should expressly provide that waters in irrigation canals,
ditches, drains and other conveyance facilities are not navigable
waters, waters of the United States, or tributary waters, and,
therefore, are not subject to the Federal agencies' jurisdiction under
the CWA. This clarification is long overdue and we appreciate the
Federal agencies' willingness to tackle this important issue.
exempt water reclamation, reuse and title xvi facilities
Reclaimed and reused water is a beneficial use that develops local
water resources and reduces the demand for imported water. The
processes for reclaiming and reusing water are costly, but are becoming
increasingly feasible in areas of the country where groundwater and
surface water sources are strained and the cost or availability of
imported water are prohibitive. Water authorities across the country,
especially those in the arid west, are investing millions of dollars in
infrastructure to utilize this drought proof water resource. Treatment
and distribution costs of recycled water are already high, making this
valuable resource marginally cost effective in some places. Any
significant increase in regulation will escalate the cost of utilizing
this water and discourage its development.
Under the proposed rule, water reclamation and reuse facilities are
not exempt from being designated waters of the United States. Ditches
that transport effluent or discharged water can easily meet the
definition of ``tributary'' under the proposed rule and be
categorically regulated as waters of the United States. The proposed
rule defines as a ``tributary'' any natural or man-made feature that
has a bed, bank, ordinary high water mark, and conducts flow to another
water. Reclamation and reuse facilities are frequently located in a
floodplain or otherwise adjacent to jurisdictional water where all
waters are categorically defined as waters of the United States. While
the proposed rule includes an exemption for artificial lakes and ponds
used exclusively for settling basins, such reuse facilities can
function or take on the characteristics of a wetland and can receive
and discharge water into surface ditches that are not exempt. The
proposed rule's wastewater treatment exemption would not extend to an
associated water reuse facility because such facilities are not
expressly ``designed to meet the requirements of the Clean Water Act,''
a condition stipulated in the rule that would not cover a beneficial
use not addressed in the Act.
Western states like California acknowledge the value of recycled
water and established a statewide goal (California Water Plan) of
recycling 2.5 million acre feet of water by 2030. In 2009, .67 MAF was
recycled; and increasing to 2.5 MAF is ambitious, but necessary to help
drought-proof the state. Currently, 3.5 MAF of treated wastewater is
being discharged to the ocean, and not beneficially reused.
Eastern Municipal Water District (EMWD), a water and wastewater
agency in southern California utilizes nearly 100 percent of the
recycled water it generates, and recycled water comprises 30 percent of
its entire water supply portfolio--over 35,000 acre feet annually. With
the assistance of the U.S. Bureau of Reclamation's Title XVI program,
EMWD has developed 5,714 acre-feet of seasonal storage, five million
gallons of elevated storage (to pressurize the system), 200 miles of
recycled distribution water pipeline, and 19 pumping facilities. EMWD
currently has greater demand than supply for recycled water and in
response has prepared unique allocations for customers. Under the
proposed rule, 10 EMWD recycled water storage sites would become
jurisdictional because they are located in floodplains, are adjacent to
jurisdictional water, and likely possess a subsurface hydrologic
connection. After becoming jurisdictional, regular maintenance and
vegetation removal of these 500 acres of ponds would require Sec. 404
permits. This added regulatory burden would not only increase the cost
of recycled water, and potentially delay further development of
recycled water storage ponds, but could hamper the development of this
drought-proof water supply. Numerous agencies in the arid southwest
share this scenario, concern, and dilemma.
Water reclamation and reuse facilities should be expressly exempt
from this rule. Particularly in times of drought such as the one that
currently affects most western states, developing new sources of water
for consumption should be encouraged. This rule could discourage water
reuse and interfere with the successful deployment of Title XVI
programs. Of equal concern is that the economic analysis that
accompanies the propose rule completely ignores the potential impact on
water reuse. NWRA recognizes that water recycling and groundwater
recovery projects will greatly improve western states' water supply
reliability and provide environmental benefits through effective water
recycling and recovery of degraded groundwater. We appreciate the
efforts of members on this committee who have worked to highlight the
proposed rule's potential impacts on water recycling.
nwra position on forest service groundwater management directives
The EPA and Corps have consistently stated that they are not
proposing to regulate groundwater. Unfortunately, it appears that the
U.S. Forest Service (``NFS'' or ``Forest Service'') is attempting to do
just that. Its ``Proposed Directive on Groundwater Resources
Management'' (``Directive'') is extremely troubling to water users. As
currently drafted, the Forest Service Directive unnecessarily expands
the reach of the Federal Government into an area generally regulated by
the states. In this Directive, the Forest Service notes that they will
apply Federal reserved water rights under the Winters doctrine to both
surface water and groundwater. We question this claim and believe that
the Directive goes far beyond the Forest Services' legitimate
authorities.
The Forest Service Directive is contrary to long standing Federal
policy respecting the role of states in regulating groundwater. The
proposal threatens states rights and could adversely impact private
property rights. In addition, we are very concerned that this Directive
was developed in a vacuum without any meaningful outreach to water
users. While we appreciate the opportunity to comment on the Directive,
the lack of transparency surrounding its development is concerning.
During a meeting with congressional staff and stakeholders the Forest
Service told NWRA representatives that this policy had been in
development for 8 years. NWRA staff asked if the agency had reached out
to water users to discus this proposal during that time. Agency
personnel answered that no, they did not reach out to water users
during that 8-year period.
The Directive would place additional permitting requirements on
both existing and future water infrastructure. These permitting
requirements would make meeting current and future water needs, and
responding to climate variability, more difficult, more time consuming,
and more expensive. The Directive would take water supply decisions out
of the hands of water managers and put it in the hands of Forest
Service employees who may have little or no experience in water
management.
The Directive states that the Forest Service will: ``Deny proposals
to construct wells on or pipelines across NFS lands which can
reasonably be accommodated on non-NFS lands.'' The rule does not define
``reasonably.'' This requirement is excessively ambiguous and ignores
the fact that water infrastructure can be constructed in a manner that
benefits both people and the environment. Evaluating all alternatives
could be a very time consuming process, and could delay already planned
and vital water projects. There are few other ``reasonable''
alternatives to developing facilities off of NFS lands in the mountains
of the western United States.
The Forest Service is openly embracing a policy that they know will
directly increase water costs for people throughout the West.
The Forest Service also states that they will work to apply new
permit requirements to new and existing groundwater wells and water
pipelines. We are concerned that the Forest Service will attempt to tie
permit approval to the modification of a state issued water right. The
Forest Service has already attempted this in regard to ski area
permitting and we are concerned that the agency will attempt to apply
similar policies to water users.
Although the Directives provide for collaboration with other
Federal agencies, such as experts from the USGS, state, tribal, and
local agencies, and other organizations; noticeably absent is the
Bureau of Reclamation, Irrigation Districts, and other water providers
who are the largest distributors and users of water resources, many of
which have existing water systems on Forest Service lands.
The Forest Service is also assuming the role of states by an
evaluation of all applications not only on Forest Service lands, but
also on applications on adjacent lands. There is no clear definition of
``adjacent.'' If the Forest Service believes all waters are in
hydraulic continuity, will they assert all state water right
applications must be evaluated by the Forest Service regardless of the
distance from their boundaries?
In the Yakima Basin, after decades of fighting resulting in
inaction, water users representing agriculture; municipal; tribal; and
environmental interests throughout the region put aside their
differences to craft a water plan that meets everyone's needs; the
Yakima River Basin Integrated Water Resource Management Plan. The
Yakima Integrated Plan provides both instream and out-of-stream
benefits by:
Providing more water for stream flows that fish need to
survive.
Building fish passage to allow salmon, steelhead, and bull
trout to travel throughout the basin, and reestablishing
what could be the largest sockeye run in the lower 48 after
extirpation from the Yakima Basin over a century ago.
Providing greater water supply reliability for farmers and
communities.
Securing the water that communities need to meet current
and future demand.
Protecting over 200,000 acres of currently unprotected
forest, shrub steppe, and river habitat.
Stretching the amount of water available by using it more
efficiently.
Enhancing habitat along the Yakima River and its
tributaries.
Essential elements to the Yakima Basin Integrated Plan are
improvements to reservoirs located on Forest Service lands that provide
vital water to the Yakima River basin for fish, cities, and
agriculture. These reservoirs have been in place and in use for many
years and are the lifeblood to the communities and people served by the
reservoirs. The Forest Service Directive could delay or derail the
implementation of this vital, innovative, and broadly supported plan,
including already approved projects which will provide water for fish
and habitat.
NWRA members remain dedicated to providing a safe, reliable and
affordable water supply in an environmentally responsible manner. We
are concerned that the Forest Service Directive will make meeting
future water supply needs exponentially more difficult and will not
provide any additional environmental benefit.
summary
NWRA members, both agricultural and municipal water providers, and
the farmers and water users they represent, support the goals of the
Clean Water Act and are committed to working with the agencies in a
collaborative manner that respects states rights. Our members have, and
will continue to meet their obligations to provide an efficient and
safe water supply and remain dedicated to the protection of our natural
resources.
Unfortunately, the CWA proposed rules could impose additional
regulatory burdens on water suppliers, farmers, local communities, and
economies, with only marginal environmental benefits. Many geologic and
man-made water related features common to the arid West, including
ditches, dry arroyos, washes, and ephemeral streams that flow only in
response to agricultural return flows or infrequent storm events will
now become subject to Federal jurisdiction and permitting; negatively
impacting the ability of suppliers to timely and efficiently maintain
their systems and supply critical water to the water users.
NWRA also has many of the same concerns with the Forest Service
Groundwater Management Directives. The Forest Service is attempting to
assert authority over groundwater and surface water decisions which are
beyond its authority and within the scope of the states' jurisdiction
on water rights. The Forest Service needs to pull back on its
regulatory overreach.
We thank you for this opportunity to testify. Despite our concerns,
NWRA and its members are committed to assisting Congress and the
agencies to address these issues in providing certainty to
jurisdictional requirements under the Clean Water Act. . On behalf of
NWRA's members I thank you for your attention to the critical water
supply issues facing our Nation, and for supporting our members as they
continue to be stewards of our Nation's water supply and a critical
part of the economy.
Attachment
eastern municipal water district
The facilities pictured below offer just a few of the many examples of
EMWD water and recycled water facilities that are in jeopardy of
becoming waters of the United States under U.S. EPA's proposed rule
defining waters of the United States.
Example 1--Sun City Ponds (Near Salt Creek, Perris), Water Reuse
Facilities
Unlined ponds are adjacent to a creek, and have a subsurface
connection to Salt Creek.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Example 2--Alessandro Ponds (Near San Jacinto River), part of Water
Reuse Facilities
Recycled water storage ponds that could become jurisdictional based
on adjacency, subsurface hydrologic connection, and the location in the
flood plain of the San Jacinto River.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Example 3--Well Blowoff and Recharge (Mountain Avenue 2 Recharge
Pond, part of future for groundwater banking, recharge site)
Wells 33, 80 and 36, potable water system
Unlined pond is adjacent to the San Jacinto River, and has a
subsurface connection to the river. This is a closed groundwater basin,
there is no subsurface outflow. Groundwater recharge sites are often
located adjacent to, but not within riverbeds.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Example 4--Well Blowoff Pond (Lakeview on Nuevo Road), potable
water system
This unlined pond is about 2,000 feet from the San Jacinto River
and is in the 100-year flood plain. Overflow from this facility is
tributary to the San Jacinto River.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. McClintock. Thank you, Mr. Martin, for your testimony.
I now recognize Mr. Patrick Tyrrell, State Engineer for the
State of Wyoming from Cheyenne, Wyoming to testify.
STATEMENT OF PATRICK TYRRELL, STATE ENGINEER, STATE OF WYOMING,
CHEYENNE, WYOMING
Mr. Tyrrell. Chairman McClintock, Ranking Member
Napolitano, and members of the subcommittee, my name is Patrick
Tyrrell. I am the Wyoming State Engineer. My office is
responsible for the issuance and administration of rights to
surface and groundwater, both of which lay under the ownership
and control of the State of Wyoming.
I appreciate the opportunity to testify regarding the
Proposed Directive on Groundwater Resources Management, Forest
Service Manual 2560, noticed in the Federal Register on May 6,
and on Wyoming's perspective regarding the Clean Water Act
jurisdiction rule that the EPA and the Corps of Engineers
published in the Federal Register on April 21.
Regarding the Forest Service proposed directive, it is
intended to add Federal management responsibilities for
groundwater to USFS land. It changes the Forest Service
national policy on water management and challenges Wyoming's
authority over groundwater within our borders, including
Wyoming's primacy in appropriation and administration of that
groundwater.
The assumptions, definitions, and new permitting
considerations contemplated materially interfere with Wyoming's
authority over surface and groundwater. Our concerns are,
first, that the Forest Service fails to provide any substantive
citation with explicit authority to manage groundwater because
there is no such authority under Federal law.
In Section 2567, the proposal appears to assert reserved
rights to groundwater. However, there is no authority giving
National Forest the benefit of a Federal reserved right to
groundwater.
The proposed Directive seeks to give a role for the Forest
Service to assert itself uniquely in groundwater permitting
decisions on lands not part of, but adjacent to, Forest Service
property. Wyoming water law controls the issuance and
regulation of all water rights, including those on Forest lands
within the state.
The Forest Service also assumes for management purposes
that groundwater and surface water are connected unless
demonstrated otherwise, an assumption that runs counter to
Wyoming's presumption of non-connection, which is superior.
In 2012, the Forest Service in the State of Wyoming entered
into a Memorandum of Understanding that runs until 2016. In
this MOU the Forest Service agreed to recognize and respect the
laws and Constitution of the State of Wyoming and permitting
practices that apply equally to the United States and to water
right applications by our citizens.
The proposed directive contains several positions foreign
to that MOU. By noticing the State of Wyoming along with the
general public on the May 6 release, the Forest Service denied
the state an important consultative role counter to Executive
Order 13132.
The State of Wyoming is more than a simple stakeholder, and
we expect true consultation to occur. In short, the Forest
Service should retract the directive and honor the state's
authority over the issuance, adjudication and administration of
water rights within our boundaries.
Regarding the ``Waters of the U.S.'' jurisdictional rule,
the Clean Water Act limits Federal jurisdiction over state
waters, recognizing that the states are better situated to make
decisions regarding water, including water quality in minor
waters that are not of national significance.
By broadening definitions of existing regulatory
categories, such as tributaries, and regulating new areas that
are not jurisdictional under current regulations, the proposed
rule provides no limit to Federal jurisdiction. While EPA and
the Corps have added a specific statement in the proposed rule
that excludes groundwater, shallow subsurface flows are still
to be used to establish jurisdictional nexus.
Clean Water Act regulations cannot be applied to distinct
surface waters connected to shallow subsurface waters without
risking expansion of jurisdiction over all groundwater.
The proposed rule defines all ditches with a bad bank and
high water line as tributaries potentially subject to Federal
jurisdiction. This accompanies what was earlier described as
roadside irrigation or storm water ditches. While there remains
an exemption for ditches that do not contribute flow to waters
identified as navigable, there is no bright line rule that
excludes ditches under the proposal.
Semi-arid Wyoming had an amazing 3,200 miles of ditches at
statehood in 1890, and all are apparently at risk now. Wyoming
is concerned that EPA and the Corps are attempting to implement
a policy that all connections between waters are significant
without regard to how much or how often they actually contain
water or influence truly navigable waters.
The proposal expands the Clean Water Act regulatory
coverage of tributaries and includes broad new categories such
as ditches, adjacent waters, riparian areas, and floodplains,
making the changes sweeping in nature. The proposed rule
contains a confusing list of exemptions, including the narrow
ditch exemption I described. These exemptions apply to a
limited set of features applicable wholly on uplands, another
critical term which is undefined.
It is imperative that with a rulemaking process which
directly affects the state's implementation as co-regulators of
Clean Water Act programs that significant input and review be
provided to co-regulator entities on the substance of the
proposed rule. However, Wyoming and other states were not
consulted early in the rulemaking process.
Thank you for the opportunity to testify here today.
[The prepared statement of Mr. Tyrrell follows:]
Prepared Statement of Patrick Tyrrell, P.E., Wyoming State Engineer,
Cheyenne, Wyoming
Introduction
Chairman McClintock, Ranking Member Napolitano, and members of the
subcommittee, my name is Patrick Tyrrell. I am the Wyoming State
Engineer. The Wyoming State Engineer's Office is responsible for the
administration, regulation, and adjudication of water rights to surface
and groundwater, both of which lay under the ownership and control of
the State of Wyoming.
I appreciate the opportunity to first testify today regarding the
Proposed Directive on Groundwater Resources Management, Forest Service
Manual 2560, (hereafter the ``Proposed Directive'') noticed in the
Federal Register on May 6, 2014. Second, I will comment on Wyoming's
perspective regarding the Clean Water Act (CWA) jurisdiction rule the
Environmental Protection Agency (EPA) and the U.S. Army Corps of
Engineers (the Corps) proposed on March 25, and published in the
Federal Register on April 21.
forest service proposed directive
Background
The United States Forest Service (USFS) asserts that its Proposed
Directive is intended to add Federal management responsibilities for
groundwater on USFS lands (79 FR 25815, May 6, 2014). It changes the
Forest Service's national policy on water management and challenges
Wyoming's authority over groundwater within our borders, including
Wyoming's primacy in appropriation, allocation and development of
groundwater. The USFS states that this Proposed Directive does not harm
state rights. This is not accurate. The assumptions, definitions, and
new permitting considerations contemplated under the Proposed Directive
materially interfere with Wyoming's authority over surface and
groundwater, and will negatively impact the state's water users.
Concerns
The Proposed Directive challenges state prerogatives.
1. Authority for the Proposed Directive on groundwater management
does not exist. The USFS fails to cite any Federal statute
or court ruling which provides for or describes its
authority to manage groundwater because there is no such
authority under Federal law. In section 2567, the Proposed
Directive appears to assert reserved rights to groundwater.
However, there is no authority giving National Forests the
benefit of a Federal reserved right to groundwater.
2. The Proposed Directive seeks to give a role in paragraph 6f for
the USFS to insert itself in groundwater permitting away
from USFS property. This is an extra-territorial reach
beyond USFS authority, and conflicts with Wyoming water law
which establishes the Wyoming State Engineer as the
exclusive permitting agency. It also places a burden on
water users who might have their water source proposal
thwarted by USFS action. Under Wyoming law, the burden
would lie with the USFS to prove a hydraulic connection
sufficient to warrant conjunctive administration, not on
individual appropriators as presumed by the Proposed
Directive. In many cases, groundwater is not meaningfully
connected to surface water, and Wyoming's presumption of
non-connection is superior. This is not to concede that
there is even a legal basis for a debate on this subject,
since Wyoming water law controls the permitting,
adjudication, and regulation of water rights on USFS lands
within the state. It is entirely inappropriate for the USFS
to attempt to extend its administrative reach onto lands
they do not manage.
3. Conflict with recent MOU. In January 2012, the USFS and the State
of Wyoming entered into a Memorandum of Understanding (MOU)
that runs through 2016. In this MOU, the USFS agreed to
recognize and respect the laws and Constitution of the
State of Wyoming and to honor permitting practices that
apply equally to the United States and to water right
applications by Wyoming citizens. The Proposed Directive,
creating a Federal reach into an area where states have
been recognized as the exclusive entity for water right
permitting, is contrary to the recent MOU. (A copy of the
MOU has been retained in the Committee's official files)
4. The Proposed Directive puts a burden on Wyoming water users. From
the proposed required measurement and reporting of produced
groundwater (paragraph 8), to the possible hydrogeologic
studies needed to show that an aquifer is not connected to
surface waters (paragraph 2), Wyoming appropriators will be
faced with a new slate of obligations and costs for water
use on these public lands.
5. The Proposed Directive was created without state consultation. By
noticing the State of Wyoming along with the general public
in the May 6 release, the USFS denied the state an
important consultative role. As the primary water manager
in an appropriative state like Wyoming, the State
Engineer's Office is more than a simple stakeholder--we
follow a system of water laws under which the Federal
agencies are water users like anyone else. Treating the
state as a simple commenter on Federal directives ignores
the state's primary authority as recognized by Congress
dating from the 1800s including the McCarran Amendment
(relied upon by the states since 1952), and the U.S.
Supreme Court. Importantly, the notice indicates that USFS
has consulted with Indian Tribal Governments in preparation
of this document under E.O. 13175, but for some reason has
decided not to enter consultation with the states under
E.O. 13132. This action wrongfully diminishes Wyoming's
role.
Time prohibits me from additional comment at this hearing, but I
anticipate that Wyoming will prepare additional and thorough comments
by the comment deadline established by the USFS. The best action the
USFS could take would be to retract the current notice and comment
period and thereby honor the law that give the states authority over
the adjudication, administration and regulation of water rights within
their boundaries.
waters of the u.s. (wotus) jurisdictional rule
Background
The Clean Water Act limits the Federal jurisdiction over state
waters recognizing that the states are better situated to make
decisions regarding water, including water quality in minor waters that
are not of national significance. The Wyoming Department of
Environmental Quality, Water Quality Division is the agency responsible
for establishing water quality standards and TMDLs, administering the
NPDES discharge permitting program and providing section 401 water
quality certifications for federally permitted projects on waters in
Wyoming. The proposed rule attempts to erode Wyoming's primary
authority over low flow, remote, headwater stream channels and isolated
ponds and wetlands by expanding the concept of national significance.
Concerns
1. The proposed WOTUS rule expands Federal jurisdiction beyond
Federal authority. By broadening definitions of existing
regulatory categories, such as ``tributaries,'' and
regulating new areas that are not jurisdictional under
current regulations, the proposed rule provides no limit to
Federal jurisdiction. Water in a riparian area or a
floodplain, a connection through shallow subsurface water
or directly or indirectly through other waters, and
aggregation of similarly situated waters, are waters that
may not be within Federal jurisdiction but are waters that
the proposed rule attempts to capture.
a. The proposed rule's extension of jurisdiction to remote
and insubstantial waters runs afoul of both the plurality and
Justice Kennedy's standards in Rapanos. The plurality in
Rapanos declined to find jurisdiction beyond ``relatively
permanent, standing or continuously flowing bodies of water,''
specifically excluding ``channels through which water flows
intermittently or ephemerally, or channels that periodically
provide drainage for rainfall.'' Rapanos v. United States, 547
U.S. 715, 739-42 (2006). Likewise Justice Kennedy refused to
find jurisdiction over ``remote and insubstantial'' waters that
``may flow into traditional navigable waters.'' Id. at 778.
b. Asserted Jurisdiction over groundwater. The proposed
rule does not ensure that Wyoming's groundwater is off limits.
While EPA and the Corps have added a specific statement in the
proposed rule that excludes groundwater, they continue to
assert that shallow subsurface flows could be used to establish
jurisdictional nexus. In Wyoming, surface and groundwater
quantity are regulated separately unless they are determined to
be a single source of supply. That determination is exclusively
within the purview of the Wyoming State Engineer. As a
practical matter, CWA regulations cannot be applied to distinct
surface waters connected only through subsurface waters without
expanding jurisdiction over all groundwater in contravention of
the Wyoming Constitution and without any authority to do so.
c. Clean Water Act success depends upon state and local
implementation. Expansion of EPA and Corps jurisdiction over
any waters not previously considered as WOTUS is not justified
by science, fact or law. The states are in the best position to
protect and manage these waters.
2. Problem elements of the proposed rule.
a. Jurisdiction over ditches. The proposed rule defines all
ditches with a bed, bank and high water line as tributaries
potentially subject to Federal jurisdiction. This encompasses
roadside, irrigation, and storm water ditches. There remains an
exemption for ditches that do not contribute flow, either
directly or indirectly, to water identified as navigable,
interstate waters, territorial seas, and impoundments. However,
the ``waters are muddied'' which places citizens, governments,
and other entities in a position that they can no longer rely
on the workable bright line rule categorically excluding
ditches. This will disrupt agricultural, governmental and
emergency operations.
b. The rule does not clarify which waters fall under CWA
jurisdiction (unless we are to assume that nearly all waters
fall under such jurisdiction) and in fact, creates confusion
and potential conflict with the Supreme Court's interpretation.
Given the expedited review timeline and the glaring lack of
state involvement, Wyoming is concerned that EPA and the Corps
are attempting to implement a policy decision that all
connections between waters are ``significant'' without regard
to how much or how often they actually contain water or
influence truly navigable waters.
The proposed rule establishes newly created, far-
reaching consequences and key concepts are undefined
and subject to agency discretion. The rule fosters
subjectivity--a result diametrically opposed to
principles of regulation, leaving us to question the
authoring agencies' intent. The proposal expands the
CWA's regulatory coverage of tributaries and includes
broad new categories of waters, such as ditches,
adjacent waters, riparian areas and floodplains, making
the changes sweeping in nature and negative in
consequence.
c. Vague exemptions. The proposed rule contains confusing
list of exemptions, including the narrow ditch exemption. These
exemptions apply to a limited set of features applicable wholly
on uplands (another critical term left undefined in the
proposed rule). It is noteworthy that in the rule's preamble,
EPA and the Corps acknowledge the difficulty of distinguishing
excluded ``gullies and rills'' from potentially regulated
``ephemeral streams.''
3. Flaws with the Science Advisory Board Report
a. The Science Advisory Board Report is void of information
from actual Corp Section 404 and 401 determinations or state
environmental quality offices. If the draft Report had included
this information, it is difficult to conceive that a neutral
reviewer would have supported the proposed CWA rulemaking and
the conclusions outlined in the Connectivity Report.
b. The Science Advisory Board lacked any state
representative, even though states like Wyoming specifically
requested to have a member of its regulating agency appointed.
Conversely, environmental interests were represented on the
Board. The states' role would be better protected by state
representation on the Board, and more effective CWA policies
and regulations would result.
c. The Connectivity Report fails to adequately address
ephemeral drainages and their impact to downstream waters of
the United States. Ephemeral water bodies may be streams,
wetlands, springs, streams, ponds or lakes that only exist for
a short period of time following precipitation or snowmelt.
Under this rule, ephemeral streams might now be considered
tributaries to navigable streams if they exhibit a bed, banks
and a high water mark. Jurisdictional determination of these
waters would require application of principals announced in
Rapanos, which cannot be met through sweeping statements which
attempt to alter the definition and are unrelated to actual
characteristics of the water body.
d. The EPA and the Corps expedited submittal of the draft
Connectivity Report to the EPA Science Advisory Board and, at
the same time, they submitted the proposed rule to OMB. This
action cuts off scientific deliberation vital to the
fundamental questions underlying this proposed rule.
4. The proposed WOTUS rule was also created without state
consultation. Like other states, the State of Wyoming plays
a significant role in ensuring effective implementation of
the Clean Water Act. Our co-regulator status elevates the
State of Wyoming, and every other state, above the
multitude of other stakeholders now engaged in the public
review process. It is imperative that with a rulemaking
process of this magnitude, which directly impacts the
states' implementation of CWA programs, that significant
input and review be provided to co-regulator entities on
the substance of the proposed rule. However, Wyoming and
other states were not included in the WOTUS rulemaking
process.
As state co-regulators, we bring a unique perspective on the
western environmental issues that we handle day to day. Failing
to consult with Wyoming and other states not only violates
executive and congressional mandates, but also erodes the very
trust and cooperation upon which we co-regulators depend. The
process employed here adds insult to the injury inflicted by an
illegal and unwise rule.
The Wyoming State Engineer administers water quantity. Questions
related specifically to water quality may be best answered by the
Wyoming Department of Environmental Quality. If questions arise that I
cannot answer, I will provide written answers to the subcommittee after
consulting with the appropriate expert.
Thank you for the opportunity to testify here today.
______
Mr. McClintock. Thank you, Mr. Tyrrell.
I now recognize Mr. Andrew Lemley, a Government Affairs
Representative for New Belgium Brewing Company based in Fort
Collins, Colorado, to testify.
STATEMENT OF ANDREW LEMLEY, GOVERNMENT AFFAIRS REPRESENTATIVE,
NEW BELGIUM BREWING COMPANY, FORT COLLINS, COLORADO
Mr. Lemley. Thank you, Chairman McClintock, Ranking Member
Napolitano, and committee members, for your time this morning.
My name is Andrew Lemley, and it is an honor and a
privilege to be here this morning representing my 550 co-
workers and fellow employee owners at New Belgium Brewing
Company.
The main message I have here today is that we depend on
clean water for our success. Beer is, after all, at least 90
percent water, and that is why, frankly, we are pleased that
the Environmental Protection Agency issued these new draft
rules, to clarify protections for water bodies under the Clean
Water Act. This action by the EPA gives us the confidence that
our growing brewery needs. We will continue to grow if we can
count on clean water, which is essential to brewing our beers
and being a prosperous business.
Our journey in crafting world class beers and running a
successful business show just that. Over the past 23 years, we
have learned that when smart regulation exists for all and when
clean water is available for all, that business thrives. We
have grown from the basement of our co-founder's home to a
900,000 barrel brewery in Fort Collins, Colorado, and right now
as we sit here, we are building another 500,000 barrel brewery
in Asheville, North Carolina.
We have been able to grow from 2 to 550 co-workers because
of the protection that the EPA and Army Corps of Engineers
guarantee for our water supply. Clarity in regulation and the
protection of natural resources are keys to economic
development.
We believe that the administration's Clean Water Rule would
restore clear national protections against unregulated
pollution and destruction for nearly two million miles of
streams and tens of millions of acres of wetlands in the
continental United States.
The cost-benefit analysis done for the Clean Water Rule by
the EPA estimates that it would generate between $388 million
and $514 million in economic benefit, exceeding the expected
costs. That is one of the reasons that the American Sustainable
Business Council, of which we are business partners, supports
it.
Clean water is part of our own triple bottom line business
model. We focus on making a profit, caring for the planet, and
doing what is right for people, and our journey has led us to
take innovative steps to reduce our impact on the water supply.
We have built an onsite wastewater treatment plant. We have cut
water use, and we give dollars directly to nonprofit
organizations engaged in water conservation and restoration.
We do what we can to honor the environment in our own
process. We advocate for sound policies, and we give dollars
directly to organizations doing work to clean up our rivers,
lakes and streams. Making world class beer, being profitable,
and honoring the environment, for us, go hand in hand.
The craft beer industry in the United States is thriving.
In Colorado alone, we have over 240 licensed brewers that
employ over 5,000 people. Nationwide the numbers are over
27,000 craft brewers that employ over 110,000 people, and we
rely on clean, plentiful water supplies to craft great beers
and employ tens of thousands of Americans, and these jobs are
jobs that cannot be outsourced. They range from technicians on
bottling lines to brewers, to microbiologists, to chemists, to
human resources professionals, to sales and marketing
professionals, and everything in between. These are good jobs
to growing companies, and we rely on responsible regulations
that limit pollution and protect water at its source.
In addition to water as a beer ingredient, we also rely on
clean water nationwide to be available for barley, hops--thank
you, Yakima Valley--and other agricultural products that we
use.
I am certain that some will see a downside, we have heard
some of that already this morning, to these protections and
worry about higher costs, but we just think that is a misguided
view. Under these new safeguards, we believe that hundreds of
communities will now enjoy the full protections of our Nation's
clean water laws.
According to EPA's analysis, in Colorado alone, more than
3.7 million Coloradans get drinking water from systems drawing
in whole or in part from intermittent ephemeral or headwater
streams. We believe that we have the opportunity and
responsibility for thriving businesses like New Belgium to do
everything in our power to protect the water that we need to
grow our company and expand local economies in which we work.
I thank you again for the opportunity to be here and
testify in front of you.
[The prepared statement of Mr. Lemley follows:]
Prepared Statement of Andrew Lemley, Government Affairs Representative,
New Belgium Brewing Company, Fort Collins, Colorado
Mr. Chairman, committee members, thank you for your time this
morning. My name is Andrew Lemley, and it is an honor and a privilege
to be here today representing my 550 co-workers and fellow employee
owners of New Belgium Brewing Company in Fort Collins, Colorado.
We depend on clean water for our success. Beer, after all, is 90
percent water. That's why we're pleased that the Environmental
Protection Agency (EPA) issued new draft rules to clarify protections
for water bodies under the Clean Water Act. This action by the EPA
gives us the confidence that our growing brewery needs. We will
continue to grow if we can count on clean water which is essential to
brewing our beers and being a prosperous business.
It makes sense to protect tributary streams and nearby waters--the
science shows, without doubt, that they are linked to downstream water
quality. And other waters should be protected when they have similar
impacts downstream. Not polluting those resources, and minimizing your
impact when you do, is just being a good neighbor--something that we at
New Belgium Brewing strive to do in our operations.
Our journey in crafting world class beers and running a successful
business show that. Over the past 23 years we've learned that when
smart regulation exists for all--and when clean water is available for
all business thrives. We've grown from the basement of our co-founders'
house in Fort Collins to our 900,000 barrel per year brewery in Fort
Collins, Colorado. We're also building a new 500,000 barrel brewery in
Asheville, North Carolina. We have been able to grow from 2 to 550 co-
workers because of the protection that the EPA and Army Corps of
Engineers guarantee for our water supply.
Clarity in regulation and the protection of natural resources are
keys to economic development.
The administration's Clean Water Rule would restore clear national
protections against unregulated pollution and destruction for nearly
two million miles of streams and tens of millions of acres of wetlands
in the continental United States. These water bodies prevent flooding,
filter pollution, supply drinking water to millions of Americans, and
provide critical fish and wildlife habitat. What's more, they provide
these valuable services for free. In fact, the cost-benefit analysis
done for the Clean Water Rule estimates that it would generate between
$388 million and $514 million per year in economic benefits, far
exceeding expected costs ($162 to $278 million annually). That's one of
the reasons the American Sustainable Business Council so strongly
supports it.
Clean water is a part of our own triple bottom line business model.
We focus on making profit, caring for the planet and doing what is
right for people. Our journey has led us to take innovative steps to
reduce our own impact on the water supply. We've built an onsite
process wastewater treatment plant. We've cut water use. We give
philanthropic dollars to nonprofits engaged in water conservation. In
2013 we gave grants to 22 groups engaged in water conservation and
restoration activities. We do what we can to honor the environment in
our own process. We advocate for sound policies. We give dollars
directly to nonprofit organizations doing the work to clean up our
rivers, lakes and streams.
Making world class beer, being profitable and honoring the
environment for us go hand in hand. Our beer lovers appreciate and
respect our work with philanthropy and advocacy for clean water. They
know that our efforts result in making great beer, protecting drinking
water and having great recreational waters. They appreciate that we
take steps to make sure our business, our country and our planet are on
a course that can be sustained for future generations.
And it's not just us. The craft beer industry in the United States
is thriving. In Colorado alone we have over 242 licensed breweries
employing over 5,000 people. Nationwide there are 2,722 craft breweries
employing 110,000 people. We rely on clean, plentiful water supplies to
craft great beers and employ tens of thousands of Americans. These jobs
cannot be outsourced and they range from production technicians to
brewers to microbiologists and chemists to sales and marketing, human
resources (or co-workers and culture as we call it) and everything in
between. These are good jobs at growing companies. We rely on
responsible regulations that limit pollution and protect water at its
source for our growth.
In addition to water as a beer ingredient we also rely on clean
water nationwide to be available for barley, hops and other
agricultural products that we use.
I'm certain that some will see a downside to these protections and
worry about higher costs. This is a short sighted view and misguided. I
mentioned that we are building a new brewery in Asheville, North
Carolina. One of the reasons that we chose Asheville is its abundant
and clean water supply. And just this spring a coal ash pond broke
through its banks and is causing a massive cleanup effort that will
cost millions. No one benefits from occurrences like these. The company
responsible for cleanup pays, and my co-workers and I worry about the
next human caused disaster that will threaten our livelihood.
Under the new safeguards proposed by the Obama administration,
hundreds of communities will now enjoy the full protections of our
Nation's clean water laws. Bringing these streams and wetlands under
the umbrella of the Clean Water Act will also help protect drinking
water for 117 million people. It will safeguard natural flood
protection, since wetlands and streams help catch and soak up rain.
This is no small benefit; 9.6 million homes and $360 billion dollars-
worth of properties lie in flood-prone areas. We witnessed firsthand in
the last 2 years how wildfires and floods can affect the water supply.
We do not need the added anxiety of human introduced pollutants in
wetlands, headwaters and streams.
According to the EPA's analysis, more than 3.7 million Coloradans
get drinking water from systems drawing in whole or part from
intermittent, ephemeral or headwater streams. http://water.epa.gov/
lawsregs/guidance/wetlands/upload/2009_12_28_
wetlands_science_surface_drinking_water_surface_drinking_water_results_s
tate.pdf.
We have the opportunity and the responsibility for thriving
businesses like New Belgium to do everything in our power to protect
the water that we need to grow our company and expand the local
economies in which we work. We are in the midst of a public comment
process on this rule--comments are being accepted until October. While
there have been numerous attempts to stop this process, we think this
is a mistake--it would effectively cut off the open opportunity for
people who care about their water to ask the agencies to protect these
resources and determine the best way to do so.
Thank you again for this opportunity.
______
Mr. McClintock. Thank you, Mr. Lemley.
I now recognize Mr. Randy Parker, Chief Executive Officer
of the Utah Farm Bureau Federation from Sandy, Utah to testify.
STATEMENT OF RANDY PARKER, CHIEF EXECUTIVE OFFICER, UTAH FARM
BUREAU FEDERATION, SANDY, UTAH
Mr. Parker. Mr. Chairman, Ranking Member and committee
members, my name is Randy Parker. I am CEO of the Utah Farm
Bureau Federation. I am here today representing more than
28,000 member families in Utah and more than six million member
families across the country. It is an honor to be here with you
today.
Farm Bureau members are greatly concerned with the
expansion of government regulations, including challenges to
sovereign state water rights and historic livestock grazing on
public lands. Federal agencies are hurting hard working farm
and ranch families who pay taxes and contribute to their local
economies.
As a country we are at a crossroads. Today we see more
aggressive control of our natural resources through growing
government rules and regulations, while the Federal agencies
ignore congressional limits in place to protect the historic
Federal-state framework. Federal agencies are testing the
boundaries of their regulatory authority as witnessed by EPA's
expansion of the Clean Water Act and ``Waters of the United
States'' as well as global warming regulations.
Now, the Forest Service has served notice that they, too,
want greater command and control, challenging the sovereign
rights of the states as established by Congress. To be clear,
the waters originating within the boundaries of the State of
Utah, including on the lands managed by the Forest Service, are
not the waters of the Federal Government, nor are they the
waters of the American people. They are the sovereign waters of
the State of Utah and belong to the citizens of Utah.
Grazing livestock on lands held in common has been a part
of Utah's landscape since our pioneer settlement. These lands
serve the common good of the people just as the 1960 Multiple
Use Sustained Yield Act requires that the public lands meet and
serve human needs. The regulatory culture of the Forest Service
has dramatically increased the level of uncertainty. According
to Nevada Federal Judge Robert Jones, the history of the Forest
Service is about seeking reductions in AUMs and even
elimination of cattle grazing.
For Utah, that is a stark reality. According to Utah State
University, in 1940 the Forest Service administered 2.7 million
sheep and cattle AUMs in Utah. In 2012 that number was 614,000,
or a whopping 78 percent reduction in grazing AUMs.
The State of Utah ranchers and sportsmen have invested tens
of millions of dollars into habitat restoration on public lands
to increase livestock and wildlife feed. Although there is more
feed to eat, the Federal land management agencies continue to
cut or suspend grazing permits. The Forest Service Directive is
another challenge to state authority. The Forest Service has a
long history of actions seeking to soak up more state water
rights, including 16,000 diligence claims in Utah, ownership of
ski area water rights, joint ownership of livestock water
rights, fencing cattle off of their water, and cutting
livestock grazing AUMs that gives the Federal Government de
facto water rights.
The Agency argues the directive is not regulatory. However,
the Forest Service directive system requires its employees to
implement the manual, and failure to do so has consequences.
With 70 percent of Utah's waters originating on Forest
lands, connectivity creates a major shift of jurisdictional
bounds. The Utah State Engineer is concerned for the
uncertainty created with state sanctioned existing water
rights. The Utah Constitution protects private property against
government taking or diminishment of value, and that includes
water.
The Forest Service is seeking Federal supremacy over state
water rights by imposing permitting written authorization and
reporting. This costly and time consuming process overlaid on
state regulatory functions will cause confusion and is
detrimental to the economic future of states that rely on water
flowing from the Forest system lands. The agency's ongoing
obsession with obtaining water rights and massive watershed
management sets up a major Federal-state conflict. The Forest
Service is carrying out this broad objective at taxpayer
expense in direct competition for waters originating on the
system lands with communities, farmers and ranchers and future
economic growth.
The USDA says the directive is not significant at $100
million a year. That analysis is shocking. Water is the
economic lifeblood of the West. Regulatory actions against
grazing cattle or reducing water flows to California, Arizona
farms and ranches will cost much more than USDA estimates. It
is the right and obligation of the Congress to set boundaries
for Federal agencies. Please reign in USDA, Forest Service and
EPA in this job-killing overreach.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Parker follows:]
Prepared Statement of Randy N. Parker, Chief Executive Officer, Utah
Farm Bureau Federation, Sandy, Utah
The Utah Farm Bureau Federation is the largest general farm and
ranch organization in the state of Utah representing more than 28,000
member families. We represent a significant number of livestock
producers who use the Federal lands for sheep and cattle grazing.
Livestock ranching is an important part of the historic, cultural and
economic fabric of the state of Utah and is a major contributor to the
state's economy. In the second most arid state in the Nation, water was
and continues to be of critical importance.
Utah's food and agriculture sector contributes to the state's
economic health and well-being generating billions of dollars in
economic activity and providing jobs to tens of thousands of Utah
citizens. Utah farm gate sales in 2013 exceeded $1.7 billion and
according to Utah State University the economic ripple effect is
dramatic. Forward and backward linkages to industries like
transportation, processing, packaging and determined food and
agriculture are the catalyst for $17.5 billion in economic activity, or
about 14 percent of the state GDP providing nearly 80,000 jobs.
As water has historically been developed in the west, it was for
the production of food and fiber. According to the Utah State Engineer,
farmers, ranchers and agriculture interests own and control 82 percent
of Utah's developed water. The landscape of the west is changing with
growing populations and increased demand for limited water resources.
With nearly 70 percent of Utah owned and controlled by the Federal
Government, sovereignty and state control of our water resources is
critical to food security, growth and future prosperity.
Utah Farm Bureau delegates in November 2013 adopted policy that
calls on the Federal Government to ``not claim ownership of water
developed on Federal land.'' In addition, Farm Bureau policy calls for
``state control of water rights, stock water rights to be held by the
individual grazing permittee and protection against Federal
encroachment on state waters.''
history
Scarcity of water in the Great Basin and southwest United States
led to the development of a system of water allocation that is very
different from how water is allocated in regions graced with abundant
moisture. Rights to water are based on actual use of the water and
continued use for beneficial purposes as determined by state laws.
Water rights across the west are treated similar to property rights,
even though the water is the property of the citizens of the states.
Water rights can be and often are used as collateral on mortgages as
well as improvements to land and infrastructure.
The idea of a ``riparian'' interest in water that appears to be
factored into the Forest Service Groundwater Resources Management
Directive is not a legally recognized concept by most western states,
holders of western water rights and under western water law.
The arid west was transformed by our pioneer forefathers through
the judicious use of the precious water resources. Utah is the Nation's
second most arid state, second only to Nevada. For our ancestors,
protecting and maximizing the use of the water resources was not only
important, it was a matter of life and death. Water retains that same
level of importance today!
CONGRESSIONAL ACTIONS
``establishing sovereign water rights of the states''
The settlers in the arid west developed their own customs, laws and
judicial determinations to deal with mining, agriculture, domestic and
other competing uses recognizing first in time, first in right. Out of
these grew a fairly uniform body of laws and rights across the western
states. The Federal Government as original sovereign and owner of the
land and water prior to Congress granting statehood ultimately chose to
acquiesce to the territories and later the states on control,
management and allocation of water.
Act of July 26, 1866:
The U.S. Congress passed the Act of July 26, 1866 [subsequently the
Ditch Act of 1866] that became the foundation for what today is
referred to ``Western Water Law.'' The Act recognized the common-law
practices that were already in place as settlers made their way to the
western territories including Utah. Congress declared:
``Whenever, by priority of possession, rights to the use of
water for mining, agriculture, manufacturing, or other
purposes, have vested and accrued, and the same are recognized
and acknowledged by the local customs, laws and decisions of
courts, the possessors and owners of such vested rights shall
be maintained and protected.'' (43 U.S.C. Section 661)
This Act of Congress obligated the Federal Government to recognize
the rights of the individual possessors of water, but as important,
recognized ``local customs, laws and decisions of state courts.''
The Desert Land Act of 1877:
``All surplus water over and above such actual appropriation
and use . . . shall remain and be held free for appropriation
and use of the public for irrigation, mining and manufacturing
. . .''
The Taylor Grazing Act of 1934:
``nothing in this Act shall be construed or administered in a
way to diminish or impair any right to the possession and use
of water for mining, agriculture, manufacturing and other
purposes . . .''
The McCarran Amendment of 1952:
Congress established a unified method to allocate the use of water
between Federal and non-Federal users in the McCarran Amendment. (43
U.S.C. Section 666) The McCarran Amendment waives the sovereign
immunity of the United States for adjudications for all rights to use
water.
``waives the sovereign immunity of the United States for
adjudications for all rights to use water.''
The 1976 Federal Land Policy Management Act:
``All actions by the Secretary concerned under this act shall
be subject to valid existing rights.''
Congress has been explicit in the limits it has established on
sovereignty and state's rights for the U.S. Forest Service and other
land management agencies.
OBAMA ADMINISTRATION
``increasing command & control''
In the public lands states of the American West, there has been a
growing distrust of the Federal land management agencies as they have
imposed greater command and control over the natural resources of the
region. The uncertainty of changing attitudes within the agencies often
driven by the politics of the day creates economic challenges for
farmers, ranchers, businesses, communities and the western states.
For grazing of livestock that began as the first pioneers entered
the Salt Lake Valley in 1847, the lands held in common were utilized in
the best interests of the common good. The Multiple Use--Sustained
Yield Act of 1960 held to the same important values--Meet and Serve
Human Needs!
The production of meat protein from the lands held in common
(public lands) provides a value to all Americans, even those who are
physically or financially unable to travel to the west. Agency actions
have dramatically reduced generation's old livestock grazing rights
(Animal Unit Months--AUMs) with water often cited as the reason. In the
trespass case United States v. the Estate of Wayne Hage, grazing
rights, livestock water rights and access to the state's sovereign
waters on Federal lands came to a boiling point in a Nevada Federal
Courtroom in 2012. Nevada Federal District Court Chief Judge Robert C.
Jones in a striking and revealing statement said:
``Anybody of school age or older knows the history of the
Forest Service in seeking reductions in AUMs and even the
elimination of cattle grazing during the last four decades.''
The pervasive culture and attitude of the leaders and employees of
the U.S. Forest Service has become even more confrontational during the
Obama administration. They are seeking to exercise greater control over
the System lands that includes reductions in grazing rights,
controlling water and challenging access. These detrimental actions are
seemingly without regard for the history, culture and economics as
required by Federal laws including the Federal Land Policy Management
Act.
Some of the aggressive agency actions that imperil property rights,
state sovereignty, economic opportunities and jobs are listed below.
They are representative of a growing list of regulatory and legal
actions that challenge opportunity and hinder economic growth.
UNITED STATES FOREST SERVICE
``water--a troubled history''
It is important to recognize and remember as one analyzes and
deliberates over the proposed U.S. Forest Service proposed Groundwater
Resources Management Directive--these waters originating on System
lands are the sovereign water rights of the people of the State of Utah
and do not belong to the Federal Government nor the American people!
Utah Diligence Claims:
The aggressive posture of the Forest Service in collecting western
water rights is highlighted in its filing of 16,000 diligence claims on
livestock water rights scattered across the Utah landscape belonging to
Utah sheep and cattle ranchers. This decades old strategy was defended
by now retired Regional Forester Harv Forsgren who argued ``these
diligence claims are made on behalf of the United States, which was the
owner of the land where livestock grazed prior to statehood and
livestock watering took place which action established the Federal
Government's claim to water rights.''
A ``Diligence Right'' or ``Diligence Claim'' under Utah law is a
claim to use the surface water where the use was initiated prior to
1903. In 1903, statutory administrative procedures were first enacted
in Utah to appropriate water. Prior to 1903, the method for obtaining
the right to use water was simply to put the water to beneficial use.
To memorialize a diligence claim, the claimant has the burden of proof
of the validity of beneficial use prior to 1903. The agency's argument
continues to be that the livestock beneficially use the water in the
name of the United States prior to Utah's statehood. These claims will
ultimately require a determination to be made by the State Engineer
under the guidance of the Utah Legislature.
Tooele County Utah Grazing Association:
In the spring of 2012, livestock grazing permittees meeting with
the local Forest managers were confronted by Forest land managers
seeking a ``sub-basin claim'' from the State of Utah. Where a sub-basin
claim is granted by the Utah Division of Water Rights, changes in use
and diversion can be done without state approval. The permittees were
asked to sign a ``change of use'' application which would have allowed
the agency greater ease in determining what the use would be, including
changing use from livestock water to wildlife, recreation or elsewhere.
When permittees objected, they were told that not complying with
the Forest Service request could adversely affect their ``turn out''--
the release of their sheep and cattle onto their Forest allotments.
2004 Forest Service ``Water Clause'':
In 2008 Utah passed the Livestock Water Rights Act to define the
water rights of permittees on the Federal lands based on the ability to
place the state's water to beneficial use. The Legislature said:
``the beneficial user of a livestock watering right is defined
as the grazing permit holder for the allotment to which the
livestock watering right is appurtenant.''
The Forest Service filed an ownership claim on all livestock water
rights on Forest System lands in Utah claiming they are ``the person
who owns the grazing permit.''
Using the ``water clause'' as leverage, the Forest Service pushed
the Utah Legislature to amend the Act to include ``joint ownership'' in
livestock water rights. The agency argued it was necessary to assure
continued water for livestock grazing of Forest lands. Utah did amend
the statute to as requested providing for a ``Certificate of Joint
Ownership.'' This action and creation of a certificate however did not
convey a right of ownership to the Forest Service because rights are
based on the ability to beneficially use the state's water.
It is important to recognize Utah law provides greater assurance of
water remaining on the livestock grazing allotment than any Federal
agency assurances, including internal policies like the Water Clause or
the proposed Groundwater Resources Management Directive. Utah law
states:
``A livestock water right is appurtenant to the allotment on
which the livestock is watered.''
In 2014 the Utah Legislature deleted reference to the ``Certificate
of Joint Ownership'' based on concerns in the Forest Service Water
Clause and a claim of sole possession. The Clause says:
``In the event of revocation of this permit, the United States
shall succeed to the sole ownership of such joint water
rights.''
It is troubling and offensive to consider that through an adverse
agency action on a permitted activity on System lands, the agency
``claims'' sole possession of previous jointly held private water
rights.
It is a government taking without just compensation!
Over-Filing on Historic Water Rights:
In Joyce Livestock Company v. United States, the Owyhee County
based cattle operation had ownership dating back to 1898 including in-
stream stock water rights. The United States over-filed on the Joyce
water rights based on a priority date of June 24, 1934--the date of
passage of the Taylor Grazing Act. The United States could not show
that Joyce or any of its predecessors were acting as it agents when
they acquired or claimed to have acquired the water rights. In 2007,
after nearly a decade of legal actions and hundreds of thousands of
dollars in legal costs, the Idaho Supreme Court denied the United
States claim and defined the standard of beneficial use. The Idaho
Supreme Court said:
``The District Court held that such conduct did not constitute
application of the water to beneficial use under the
constitutional method of appropriation, and denied the claimed
rights. The Idaho Supreme Court concurred holding that because
the United States did not actually apply the water to a
beneficial use the District Court did not err in denying its
claimed water rights.''
In 1991 in Hage v. United States, the Forest Service and BLM over-
filed on the livestock rights established in 1865 that ultimately
became a landmark ``Constitutional Takings'' case that went before the
U.S. Court of Federal Claims. The USCFC award of $4.4 million was
appealed to the Federal Court of Appeals for Washington, DC where the
award was overturned in 2012. While awaiting a decision, the U.S.
Forest Service and BLM in 2007 filed suit in Nevada Federal District
Court against the estate of Wayne Hage alleging trespass on Federal
lands. In what could only be called a contentious proceeding, Nevada
Federal Judge Robert C. Jones heard testimony from Humbolt-Toiabe
Forest Ranger Steve Williams stating that:
``despite the right (of the Hages) to use the water, there was
no right to access it, so someone with water rights but no
permit from the U.S. Forest Service would have to lower a cow
out of the air to use the water, for example, if there were no
(agency granted) permit to access it.''
June 6, 2012 Judge Jones made two very important observations on
the Forest Service and livestock grazing policies:
``. . . the Forest Service is seeking reductions in AUMs and
even the elimination of cattle grazing . . .''
``I find specifically that beginning in the late '70s and '80s,
first, the Forest Service entered into a conspiracy to
intentionally deprive the defendants here of their grazing
rights, permit rights, preference rights.''
Both the Appeals Court and the Nevada District Court were in
agreement that there is ``a right of access'' to put livestock water to
beneficial use on Federal lands. Judge Jones ruling even included an
access corridor with grazing rights while beneficially using the
state's waters.
In the Tombstone, Arizona scenario, the Forest Service overreach
begins with the agency overfiling on the city's 25 developed springs
and wells located in the Huachuca Mountains. For more than 130 years
Tombstone piped its privately held water rights some 30 miles for use.
Even after the Huachuca's were designated a Federal wilderness area in
1984, Tombstone was allowed to maintain its road and critical access to
its springs providing Tombstone with water for culinary needs and maybe
more important in this hot, arid place--fire protection and public
safety.
Tombstone won the water ownership challenge, but found the agency
combative and stonewalling following torrential rains in 2011. After
notifying the Forest Service of their need to repair damage as in the
past, they were denied access. They sought relief based on the state's
public health, safety and welfare obligations. When the city received
authorization to do badly needed repairs they were forbidden from using
the previously approved mechanized equipment. As city employees showed
up with hand-tools and wheelbarrows--armed Forest agents would not
allow the ``mechanized'' wheelbarrows onto the Forest administered
lands! As of April 24, the Forest Service has allowed Tombstone access
to only 3 of their 25 springs.
Fencing Cattle From Their Water:
In drought stricken Otero County, New Mexico, the Forest Service is
blocking rancher's cattle from accessing long held water and recognized
as private property rights under state law. The agency told the
ranchers with thirsty cattle that they merely replaced old barbed wire
fences with new, much stronger metal based fences to establish
enclosures to protect a ``vital wetland habitat.''
Otero County Commissioners issued a ``cease and desist'' order in
an attempt to allow the cattle access to the rancher's water and to
protect the state's sovereign water rights. The elected county
commissioners charged the Forest agents with an illegal action that
could ultimately lead to animal cruelty. The county is threatening the
arrest of Federal personnel who are keeping the ranchers from their
privately held water rights.
Intermountain Regional Water Policy:
National and Intermountain Region Forest Service policies authorize
and instruct agency personnel on the ``establishment of water rights in
the name of the United States'' and provide guidance with ``State
Specific Considerations'' outlining the steps to obtain livestock water
rights. In an August 15, 2008 Briefing Paper, Regional Forester Harv
Forsgren explained the ``United States, through the Forest Service, has
filed thousands of claims for livestock water on Federal lands. The
Forest Service in the Intermountain Region has filed on or holds in
excess of 38,000 stock water rights . . .''
The briefing paper continues, ``In recent years, ranchers and
community leaders have contested ownership of livestock water rights.
Some ranchers believe that they should hold the water rights because
their livestock actually use the water. Land management agencies, such
as the U.S. Forest Service, have argued that water sources used to
water livestock on Federal Lands are integral to the land where the
livestock grazing occurs, therefore the United States should hold the
water rights.'' When addressing water development on Forest System
lands, the Regional Forester said:
``The Intermountain Region will not invest in livestock water
improvements, nor will the agency authorize water improvements
to be constructed or reconstructed with private funds where the
water right is held SOLELY by the livestock owner.''
Restricting the use of private water rights through greater agency
control challenges state sovereignty and private property protections
under Utah's Constitution.
Defacto Water Rights:
Shrinking livestock grazing rights in Utah have been troublesome
for elected officials and livestock ranchers for generations. Following
the enactment of the Taylor Grazing Act of 1934 and establishment of
Grazing Districts where ``chiefly valuable for grazing'' was the
congressional mandate the Forest Service and BLM authorized more than
5.5 million AUMs (the amount of forage consumed by a 1,000 pound cow
and calf) in Utah.
On June 18, 2014 the Utah Legislature held hearings on why in 2014
there are only 1.6 million AUMs, or a loss of nearly 70 percent over
the past 70 years. Forest Service and BLM representatives asked to
justify the dramatic drop and how those cuts affect water rights,
access, and rural economics.
As permitted AUMs have been dramatically reduced, there has been a
corresponding increase in ``suspended'' AUMs--or currently obligated
grazing rights that are being held by the Federal land managers in non-
use. Through this process, the Federal Government has gained unused
ranchers livestock water rights--defacto water rights illegally
absorbed by the United States without compensation. Along with 340,000
suspended AUMs that continue to languish in non-use even while the
state of Utah, ranchers and sportsmen invests tens of millions of
dollars in feed for livestock and wildlife habitat without Federal
agencies increasing livestock grazing.
UNITED STATES FOREST SERVICE
proposed groundwater resources management directive
The Federal Register May 6, 2014, page 25823 states under
Regulatory Impact that USDA has determined this is not a ``significant
directive.'' It continues, ``This directive will not have and annual
effect of $100 million or more on the economy, nor would it adversely
affect productivity, competition, jobs the environment, public health
or safety or State or local governments.''
This statement seems to dismiss very real and widespread economic
impacts and under further scrutiny appears to be misleading! The Forest
Service has a recognized history of reducing livestock grazing in Utah
and across the West based citing water as a major reason. Any reduction
of sheep or cattle grazing on System lands impacts real ranching
families and western communities. In the arid west and particularly in
Utah with 67 percent of the state controlled by Federal land managers,
there are many counties with 85, 90 and even 95 percent Federal lands.
The Forest System lands are where winter snows fall and rain
accumulates. This high mountain terrain is generally where water flows
and springs are recharged for livestock use and captured for use by
rural communities.
The ranching families who depend on Forest access for livestock
grazing not only generate real economic activity--they pay taxes, fund
hospitals, schools and other critical infrastructure across the Utah
and Western landscape!
In the event actions reducing livestock stocking rates are taken by
the agency for reduced moisture as proposed in the Directive, with as
little as 10 or 25 percent cuts in cattle grazing or as dramatic as 50
percent--the economic impact is dramatic. In southern Utah's Kane and
Garfield Counties for example, with private lands making up only 10
percent and 5 percent of the total county land base respectively,
cattle ranching is the foundation economic industry. With 12,500 beef
cows, all of which spend some time on Forest lands, if the Forest
Service cut 25 percent of the cattle, that would reduce cattle sales by
more than $3 million and cut economic activity by more than $6 million
annually. With a 50 percent cut in cattle grazing those numbers
double--more than $12 million is taken from these rural counties
annually until the Forest Service restores AUMs.
Considering these potential grazing cut scenarios under the
proposed Directive in just two rural Utah counties, it doesn't take
very many counties with grazing reductions across the west to meet and
surpass the USDA dismissed $100 million mark.
The history of the Forest Service and livestock grazing in Utah is
striking when the numbers are analyzed. Utah Forest Service permitted
AUMs between 1940 and 2012--the number of sheep and cattle grazing
System lands has been dramatically reduced. In 1940, according to Utah
State University researchers there were 2,754,586 sheep and cattle
grazing AUMs permitted in Utah. In 2012, 72 years later, the Forest
Service has reduced that number to 614,682 AUMs--a reduction of
2,139,904 AUMs or a whopping 78 percent!
The history and its economic impact on rural Utah and the state's
economy by Forest Service grazing cuts is dramatic. An average sized
500 beef-cow operation grazing on the common lands generates more than
$500,000 in direct sales stimulates more than $1 million in economic
activity. The heavy cuts in grazing AUMs has robbed hundreds of
millions of dollars from rural communities.
The internal obligation of Forest Service employees to implement
the agency's Manual, including the proposed Directive, provides an
undeniable opportunity to facilitate the agency's historic and
recognized attack on western livestock ranching and undermining of
longstanding western water rights.
Forest Service Directive System:
The Forest Service Manual contains legal authorities, objectives,
policies, responsibilities, instructions and guidance needed on a
continuing basis by the Forest Service line officers and primary staff.
For Forest Service employees, the agency issues the following warning
for not following the agency directives:
``The Manual contains the more significant policy and standards
governing Forest Service programs, and thus the consequence of
not complying with the Manual is generally more serious . . .''
The Directive seeks greater authority and control obligating
employees to integrate the Forest Service Manual ``directives'' based
on terms like ``require,'' ``report,'' ``prevent,'' and ``obtain.''
These are ``action words'' that convey to Forest employees and
permitted users there is an obligation of compliance and that there are
or will be consequences for ``not complying!''
Seeking Greater Control of Western Water:
According to the Utah State Engineer, ``in Utah the Forest Service
lands are those lands where most of our annual precipitation falls and
accumulates as snow . . .'' There is not a definitive study on what
percent of Utah precipitation originates on System lands but it ``may
well be as much as 70 percent.'' (See Attachment A)
2560.03 Policy:
2. Water Resource Connectivity: The agency cites they will ``manage
surface and groundwater resources as hydraulically connected, and
consider them interconnected in all planning and evaluation activities,
unless it can be demonstrated otherwise . . .'' This is an obvious
attempt to expand the agency's authority. With such a large portion of
Utah's waters originating on System lands, this Directive could impede
Utah's current water uses and future water needs.
It is alarming when the agency seeks jurisdictional control based
on ``interconnectivity''--surface and groundwater. What are the
jurisdictional bounds the Forest Service seeks or can legally exercise
based on state's rights? Utah's State Engineer expressed concerns about
existing diversions and use and the potential for reissuing of permits.
He is concerned that the Forest Service may seek and unilaterally
establish authority to create restrictions on existing uses under this
policy if they decide what they already approved doesn't fit within
their new interpretation. And what authority does the policy suggest
the agency can exert in not allowing as much use of the water from a
source located on System lands as has previously been allowed under
state authority and beneficially used under state law. This could
create a tremendous frustration and potential legal issues for holder
of existing water rights where Utah's Constitution protects against the
government ``taking or diminishing value'' in private property right.
This proposed new policy creates tremendous uncertainty. What might
be the impact of Federal dictates on private property rights and what
Congress has conveyed as the sovereign waters of the state of Utah?
Utah's State Engineer expressed concern interpreting the policy and
implementing what they think the words in the Directive say. There are
existing state authorized with long established rights. The holders of
water rights must have assurances that their uses and dependency on
those sanctioned uses will continue.
4. Effects of Proposals on Groundwater Resources: (a) The policy
seeks ``consideration of effects'' and ``approving a proposed use''
which appears to be the agency seeking to establish a permitting
process. Permitting the use of water that is clearly the property and
authority of the state of Utah is Federal regulatory overreach. In
addition, the slowdown and costs associated with meeting an additional
level of Federal review would be unacceptable based on access to and
use of private property and the water resources of the state.
(c & d) Policy requiring written authorization, monitoring and
mitigation are troubling and suggest the agency is seeking to usurp
sovereign states rights while establishing a level of Federal
supremacy! This policy proposal could have dramatic impacts including
delayed use of groundwater and even surface water resources and
potential loss of individual property rights based on time requirement
for beneficial use and ultimately forfeiture under state law.
(e) ``Obtain water rights'' as related to this proposed groundwater
policy and in the context of a potentially massive watershed basis--
portends major Federal/state framework conflicts. The scope of the
overall Directive and the state policy to obtain water rights ``for
groundwater and groundwater dependent surface water'' could provide
regional Forest staff the ability to seek and purchase water rights
originating on and even off, if they deem that water necessary to carry
out the very broad objective of the Manual. This puts the Federal
Government, at taxpayer expense, in direct competition with
municipalities, farmers, ranchers and other businesses for the state's
water resources.
2560.04h--Forest and Grasslands Supervisors:
(5). ``Evaluate all applications for state water rights on NFS
lands and those adjacent lands with a potential to effect System
groundwater resources.'' This directive seems to challenge or seeks to
establish Federal supremacy over state water rights and where the
state's are granting water rights and permitting beneficial use
activities under state law. The additional assumption that the Federal
Government has authority to evaluate and influence in any way the use
of water related to ``adjacent lands'' is in direct violation of Utah's
Constitution and protection against ``taking or diminishing value'' of
private property rights.
Groundwater Recharge Zones:
Groundwater recharge zones, located on public or private property,
falls under the prevue of Utah Division of Drinking Water. Utah has
aggressive state statutes and local ordinances that address the current
and future drinking water needs of the citizens of the state. The
Federal land managers have an obligation under ``federalism'' to
provide state and local authorities full and unfettered access to
implement groundwater protection activities on System lands without
Federal interference to carry out its regulatory mandates.
Actions by the Forest Service to reduce or eliminate livestock
grazing based on recharge areas and on riparian areas are outside of
Federal authority. Addressing water quality and meeting water quality
standards is the responsibility of the state. Utah's Strategy for Clean
Water has established long standing and successful incentive-based
partnership with Utah's farmers and ranchers in place to address non-
point sources of water pollution. The EPA Award Winning Program should
be utilized on both public and private lands.
Congressional Oversight:
The Congress of the United States not only has the right, but has
the obligation to determine the reach of Federal regulatory agencies.
The Farm Bureau calls on Congress to maintain the historic Federal/
state framework as it relates to the sovereign waters of the states.
This relationship is critically important based on the difference in
between eastern and western states and the source of available water
supply. (See Attachment B)
Attachment A
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Attachment B
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. McClintock. I thank you, Mr. Parker.
I now recognize Mr. Roger Clark, Director of Engineering
and Operations of the Associated Electric Cooperative, Inc.,
which is based in Springfield, Missouri, to testify.
STATEMENT OF ROGER CLARK, DIRECTOR, ENGINEERING AND OPERATIONS,
ASSOCIATED ELECTRIC COOPERATIVE, INC., SPRINGFIELD, MISSOURI
Mr. Clark. Thank you, sir. Chairman McClintock, Ranking
Member Napolitano, and members of the committee, it really is
an honor to be here. I appreciate the opportunity.
Roger Clark, Associated Electric Cooperative, Springfield,
Missouri.
I would be remiss if I did not take a chance to at least
shout out to Congressman Smith. Associated has a longstanding
relationship with the Congressman, and I know he has not been
in Congress that long, but he has still proven a commitment to
the rural ratepayers in Missouri for affordable, reliable
electricity. We appreciate those efforts.
Associated Electric, formed in 1961, had a pretty simple
mission, and that was to provide wholesale power to Missouri,
northeast Oklahoma, southeast Iowa, and I emphasize the word
``cooperative.'' That is near and dear. As such, we are a not-
for-profit, a private business that essentially is governed by,
regulated by, if you will, the people who write the checks for
the electricity that we provide.
The other thing that may be of relevance to the committee,
Associated Electric is the largest preference power customer
from Southwestern Power Administration. We receive about 25
percent of the low cost hydropower that comes out of
Southwestern, a very, very important asset for our affordable
rates in Missouri.
Associated has a very longstanding commitment to the
environment, and as you have heard up here, we are proud of
that. We have been recognized nationally for our land
reclamation efforts and the work we have done in wildlife
habitat. We have been an established partner with Missouri's
Department of Conservation, and we have even been recognized as
a Conservation Organization of the Year.
We have been involved in a lot of voluntary efforts with
U.S. Fish and Wildlife, trying to do things proactively for
those species that have been proposed under the Endangered
Species Act.
I say that because that is what we have done, but that is
not why we have done it. We are committed to the environment
because we are owned by the people who live on the land. We are
owned by the people who own the land, that make a living from
the land. No less than anyone out there, they want to protect
water resources. They want to protect air resources. They are
concerned.
But that said, we have some serious, significant concerns
with the rule proposed recently by the EPA and the Army Corps,
specifically with the definition of ``Waters of the United
States.'' Probably the easiest way to say it is as this draft
is proposed, electric cooperatives just are not going to be
able to do what we do best, and that is provide affordable,
reliable electricity.
We are dying here. We are drowning under reams and reams of
Federal regulation, and while it all may be well intentioned,
at the end of the day it is really clear when you are out there
trying to put these things into force. It adds delay. It adds
complexity, and it adds cost. And plain and simple, the cost is
at the expense of the people who are writing the checks, and in
our case those are rural Missourians.
One out of every five of our almost 900,000 customers has a
total household income of less than $25,000. Almost half of our
member owners have a total combined gross income of less than
$50,000. These costs are not misguided. These costs put people
at--to make very difficult decisions. This is not corporate
America. This is not burdening stockholders. This is coming at
the expense of rural America and the people that I work and
live with.
It boils down to doing the right thing in an efficient way.
For us to do our job, we have to maintain almost 10,000 miles
of transmission line, and the ambiguity in this rule makes it
impossible to understand the exact impact, but what I can tell
you is, because we are dealing with what we call a bar ditch
and the fact that the bar ditch is now going to be something
that is protected as a ``Water of the United States'' and not
understanding how to do that is just going to make it near
impossible for us to do our job.
I appreciate the attention of the subcommittee. This and
other proposed rulemaking is important to Associated and the
other electric cooperatives of this country. I would be happy
to discuss issues and answer questions.
Thanks for your time.
[The prepared statement of Mr. Clark follows:]
Prepared Statement of Roger S. Clark, Director, Engineering &
Operations, Associated Electric Cooperative, Inc., Springfield,
Missouri
Chairman McClintock, Ranking Member Napolitano, members of the
subcommittee. Thank you for inviting me to testify today on ``New
Federal Schemes to Soak Up Water Authority: Impacts on States, Water
Users, Recreation, and Jobs.'' My name is Roger Clark, and I am the
Director of Engineering and Operations for the Associated Electric
Cooperative, Inc. (Associated).
Before I begin my testimony, I'd like to thank Congressman Jason
Smith from my home state of Missouri. We've had a long-standing
relationship with Congressman Smith, but during his short time in
Congress he's already proven his commitment to supporting reliable,
affordable electricity for the people of rural Missouri. Associated
supplies electricity to over 400,000 individuals in Congressman Smith's
district, and we know that their interests are well represented here in
Washington, DC.
associated background
Associated is owned by six generation and transmission (G&T)
cooperatives, which formed Associated in 1961 to provide the G&Ts with
a wholesale power supply. These six G&Ts are owned by 51 distribution
cooperatives in Missouri, southeast Iowa and northeast Oklahoma that
are owned by about 875,000 member consumers. As an electric
cooperative, Associated is a not-for-profit, private business governed
by our consumers. More than 900 electric cooperatives serve 42 million
consumers in 47 states.
Associated has a long-standing commitment to environmental
stewardship. We're committed to this cause because we are owned by
people who live on the land and want to protect rural America's water
and air resources for future generations. To this end, we have 750
megawatts of wind generation under contract, representing 10 percent of
the energy used to serve our members. In 2007, this investment earned
us the Department of Energy's Wind Cooperative of the Year award. We
have also spent over $30 million on energy efficiency for our
cooperative members. Over the lifetime of the equipment, these efforts
will save enough electricity to serve 60,000 rural Americans for 1
year.
Associated has been nationally recognized for our land reclamation
efforts and wildlife habitat development. We've invested $1.1 billion
in emission control equipment and have proactively developed and
deployed mercury removal technology well in advance of EPA regulations.
We've established a partnership with Missouri's Department of
Conservation to manage the fishery at Thomas Hill Lake. These efforts
earned us the distinguished title of ``Conservation Organization of the
Year'' by the Conservation Federation of Missouri. Finally, it is worth
mentioning, that we are proactively involved in voluntary state efforts
to develop habitat for species that the U.S. Fish and Wildlife Service
has proposed for listing under the Endangered Species Act (ESA). We are
committed to these voluntary efforts in hopes that they will give the
Federal Government a reason to avoid listing these species under the
ESA.
Notably, about 6 percent of our power supply comes from hydropower
provided by the Southwestern Power Administration (SWPA). Associated is
SWPA's largest customer, receiving 25 percent of the power produced by
SWPA. The business relationship between Associated and SWPA represents
a long-standing partnership between electric cooperatives and the
Federal Government. It is a model that works well for providing our
consumers with reliable, affordable electricity. I would like to thank
the members of this subcommittee for your continued efforts to protect
electric cooperative access to this vital source of renewable energy.
associated's concerns with the ``waters of the united states'' proposed
rule
Associated has significant concerns with the rule proposed recently
by the U.S. Environmental Protection Agency (EPA) and the U.S. Army
Corps of Engineers (Corps) to revise the definition of ``Waters of the
United States'' under the Federal Clean Water Act. Under this draft
proposal, electric cooperatives will face significant challenges as we
strive to provide our member-owners with reliable and affordable
energy. In my testimony, I will highlight several activities related to
the transmission, distribution, and generation of energy that may
require Federal permits under the proposed rule, causing uncertainty,
delay, and cost. The activities we are concerned about include
transmission and distribution facilities, vegetation management, new
generation, pond management, and mine reclamation.
transmission and distribution facilities
Associated generates electricity at 15 generating units located in
Kansas, Missouri, Arkansas and Oklahoma to serve customers throughout a
multi-state region requiring an expansive transmission network. As we
increase our generating capacity to meet the growing demands of our
members, we may also need to build new transmission facilities. Looking
forward, Associated and the G&Ts plan to invest an estimated $115
million on primary transmission facilities in the next 10 years, and
our experience has been that Federal permit requirements add
substantial cost and delays to these projects.
Transmission facilities require regular maintenance, including
necessary repair and replacement of poles and towers. In addition,
these facilities require upgrades to make the system more resilient in
the event of extreme weather events. SWPA and other Federal Power
Marketing Administrations that own transmission systems will be
affected similarly and any increased costs will be passed on to our
member consumers.
Along these lines, we are concerned that under the proposed rule,
transmission rights of way may be considered waters of the U.S.
Transmission rights of way are often simple ditches alongside roads.
These ditches receive road runoff, which could grow cattails even
though they infrequently hold water. EPA and the Corps have said that
they are exempting ditches that drain only upland and are constructed
in uplands, but the term ``upland'' is not defined. This gives the
Federal Government the final say on whether or not ditches are eligible
for the exemption.
As a result, we will need a permit from the Corps of Engineers to
maintain our transmission facilities. The Corps has a nationwide permit
for utility line activities that authorizes up to \1/2\ acre of
disturbance for each ``single and complete project.'' Under the current
permit, each stream crossing is considered a separate project. However,
under the proposed rule, ``ephemeral streams'' that only have water
when it is raining would be considered streams so it will be hard to
tell where a ``water'' ends and land begins.
Given the large number of runoff channels that crisscross the
landscape, we could easily exceed the \1/2\ acre limit provided under
the nationwide permit. If so, we would have to get an individual permit
for each project, which will take time and money. Of course, the
additional cost and time associated with the permit do not take into
consideration NEPA litigation or Clean Water Act citizen suits that may
occur as a result of Federal involvement in the project.
Finally, it's worth noting that along transmission routes
Associated operates substations where we store oil requiring a Spill
Prevention Control and Countermeasure (SPCC) Plan. The increased scope
set forth in the proposed rule would require Associated to expand these
plans to take into account the areas not currently considered waters of
the United States. This is yet another cost that will impact our member
consumers.
The permitting requirements that apply to Associated's distribution
cooperatives will delay electric service to new residential, small
business, and farm members, as well as any proposed economic
development projects. Delays in line construction may force companies
that can't wait for permitting in the United States to locate
elsewhere.
vegetation management
To maintain the reliable delivery of electricity, we also have to
maintain our transmission routes, keeping them clear by controlling
vegetation. To do this, we use herbicides. If our rights of way are
considered waters of the United States, we will need a permit to spray
herbicides for weed control. EPA and states have issued general permits
for weed control, but if you spray more than 20 linear miles, there are
added burdens. And, if the area is considered a waters of the United
States or potential habitat for endangered species, there will be even
more requirements, all triggered by the assertion of Federal
jurisdiction.
We also maintain the property around our generating facilities and
transfer stations. Using herbicides in these areas will give rise to
the same issues. We are concerned that SWPA will face similar issues,
incur similar costs, and pass those costs along to electric
cooperatives.
new generation
Currently coal is our primary source of generation, but looking
forward, Associated will continue to invest in a broad portfolio of
energy resources to meet the needs of our member consumers. The
challenges previously outlined facing transmission facilities also
apply to the construction of new generation, and are further
complicated by the lack of a nationwide permit for new fossil fuel
generation capacity. In fact, the situation will be even more
challenging with respect to natural gas plants that require pipelines
to transport gas to any new gas-fired plants. As we look to bring new
sources of generation on line, we are concerned that the siting and
permitting of new natural gas pipelines will be further delayed. These
activities become even more critical for cooperatives if we are to meet
EPA's proposed requirements to replace coal generation with renewable
energy sources and additional combined cycle natural gas generation.
It's also worth noting that the Corps does have a nationwide permit
for land-based renewable energy development, but the permit only allows
\1/2\ acre of land to be disturbed and just 300 linear feet of stream
(unless the Corps waives the 300 feet limit). Given the expanded
definitions and uncertainty discussed above, this nationwide permit may
have little practical application. For example, most wind farms likely
will exceed \1/2\ acre of land.
pond management
Associated built Thomas Hill Lake to provide cooling water for our
member consumers' power plant, but the lake also provides recreation
for the community and habitat for wildlife. Associated works with the
Missouri Department of Conservation, which manages the lake for fishing
and wildlife habitat. Water is vital for power plant operations, and
we're committed to ensuring the quality of the small quantity we
consume, as well as the quality of the water we return to the pond.
Thomas Hill Lake is a water of the United States and therefore we have
a permit to discharge our cooling water into the lake. However, under
the proposed rule, we are concerned about the status of canals used to
channel water to the lake.
In addition to providing cooling water, Associated manages coal
combustion byproducts through a combination of practices including
beneficial use, mine reclamation, as well as permanent disposal using
permitted storage facilities, including ponds. If these ponds are
determined to be waters of the United States, Associated may no longer
be able to use them for storage and could incur significant costs for
alternative management options, costs that we would have to pass on to
our member consumers.
mine reclamation
In the past, Associated operated coal mines to provide fuel for its
coal-fired power plants. We closed those mines after we switched to
low-sulfur coal and have been reclaiming the former mining sites, as
required under the Surface Mining Control and Reclamation Act (SMCRA).
We are very proud of our mine reclamation efforts, having restored
thousands of acres of once-mined land to productive pasture, forests
and wetlands receiving national awards for ``exemplary reclamation.''
Our concern now is that these activities will subject us to duplicative
and perhaps conflicting Federal regulations.
conclusion
Throughout the years of change and challenge Associated has never
lost focus on the reason it was formed: to provide economical and
reliable power and support services to its members. As we go about
providing this necessary service, we are troubled by new regulations
that seem to have an outsized impact on rural America. These new
regulations make simple business decisions increasingly difficult, and
in fact, may conflict with other policy goals. We appreciate the
subcommittee's attention to this proposal of importance to Associated
and electric cooperatives throughout the country. We look forward to
continued discussion of these issues and are pleased to provide real-
world examples of how decisions made in Washington, DC affect the day-
to-day lives of rural Americans. Thank you for the opportunity to
testify. I would be happy to answer any questions.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. McClintock. All right. Thank you. I thank all of the
witnesses for their testimony.
I will now begin 5-minute questioning by the Members, and
the Chair will begin.
Mr. Martin, numerous communities in the United States are
currently dealing with extended drought conditions. Will these
proposals make it more difficult to deal with the drought or
less difficult?
Mr. Martin. No question it would make it more difficult.
Any time you have additional regulatory permitting, it delays
many improvements and many projects across the West.
Mr. McClintock. What is involved in obtaining these permits
from either the EPA or the Forest Service?
Mr. Martin. Well, to get a permit from the EPA, it is
usually through the Corps of Engineers. In the State of
Washington, it is also through the Washington Department of
Fish and Wildlife. It is a joint permitting process. Depending
on the type of project, it can take years and can takes
thousands of dollars.
Mr. McClintock. Suppose you just want to grade a road that
crosses a ditch, for example.
Mr. Martin. Those can take many, many, many months.
Mr. McClintock. Many months. How much money is involved in
the permitting process?
Mr. Martin. How much money? The permit itself is not that
expensive.
Mr. McClintock. No, but meeting the requirements.
Mr. Martin. It is all of the time and effort, and many
times you have to hire experts who can analyze what the sort of
effect will be to get that permit.
Mr. McClintock. I represent a large portion of the Sierra
Nevada which have gullies running throughout it. There are an
awful lot of water conveyances dating back to the mining days
over 100 years ago that are still operational, pass through
many, many people's properties, small creeks, streamlets and
the like.
If a small gulley running through your property joins
another creek that joins another creek that joins a stream that
joins a navigable river that runs through Forest Service land,
under the proposed Forest Service rule, would I have to obtain
a permit if I wanted to grade a driveway that crossed that
gulley?
Mr. Martin. I wish I could tell you for sure, but my guess
under the proposed rule would be yes.
Mr. McClintock. And what would that involve me doing as a
property owner?
Mr. Martin. You would have to go through the Corps and the
EPA and probably additional maybe state regulatory agencies.
Mr. McClintock. Now, the EPA says that the ``Waters of the
U.S.'' rule is going to create more certainty. Does anybody
agree with that?
Mr. Martin. Not I.
Mr. McClintock. Anyone?
[No response.]
Mr. McClintock. Mr. Clark, how would the ``Waters of the
U.S.'' proposal make permitting more difficult and costly for
your members?
Mr. Clark. Quite simply, it is going to add time. Time is
delay. We have crossed over to the point now where even with
our given regulations, it takes longer to permit a transmission
line than it takes to build one.
Mr. McClintock. And I assume delay means money.
Mr. Clark. Delay means money.
Mr. McClintock. And who ends up paying for that?
Mr. Clark. It is the ratepayers of the rural Missouri.
Mr. McClintock. Both the Forest Service and the EPA failed
to consult with the states during the development of these
proposals. This is on top of the fact that the Forest Service
has been working on the Groundwater Directive for 8 years.
On the Clean Water Act rule, the EPA denied requests by the
states to have representatives on the Scientific Advisory Board
that was instrumental in informing that rule.
Mr. Tyrrell, was there any consultation from the Forest
Service with your state over these 8 years?
Mr. Tyrrell. Mr. Chairman, no, not to my recollection. We
were not consulted in the preparation of the draft.
Mr. McClintock. And on the EPA's water rule, did the EPA
give you any good reason why a state expert could not sit on
the Scientific Advisory Board that informed the rules
development?
Mr. Tyrrell. Mr. Chairman, I know that the State of Wyoming
DEQ asked to have a representative on that board and that was
not allowed.
Mr. McClintock. Were you afforded any meaningful
opportunity to review and comment on the science used to
justify the rulemaking before the EPA sent the rule to the
Office of Management and Budget?
Mr. Tyrrell. Mr. Chairman, no, we were not, and I think
Western States Water Council has also opined on the lack of
consultation with the states in general.
Mr. McClintock. Mr. Martin, your testimony details how the
existing Clean Water Act impaired your client's ability to
implement state or local conservation planning. After 4 years
of negotiations and discussions, your client was able to go
forward on this project.
Witnesses have said that the proposals we are considering
today will actually complicate regulatory matters. How will the
proposed ``Waters of the U.S.'' rule and the Forest Service
Groundwater Directive impact local irrigation districts that
want to create storage and conservation projects that benefit
people and species?
Mr. Martin. It will slow the process down and cost a
tremendous amount of money just to obtain any sort of a permit.
Mr. McClintock. Mr. Clark, final question. Could you
explain the ambiguity of the ``Waters of the U.S.'' rule in
terms of how transmission rights-of-way might be treated?
Mr. Clark. I can explain it in terms of words like
``upland.'' There are things that we do not understand. They
are not clearly defined. The impact of that is just going to be
misinterpretation. It is going to be challenges. It is going to
be lawsuits, and it is going to be financial consequences.
Mr. McClintock. Thank you.
The Chair now recognizes Mrs. Napolitano for 5 minutes.
Mrs. Napolitano. Thank you, sir.
And while it has been brought up several times that the
administration did not show up, I would like to clarify that
EPA was not invited.
For the record, Mr. Chairman, I have a letter I sent to
Gina McCarthy, dated June 19, with some questions that would
have clarified some of it for the record, and the second one is
a memo from the Department of the Interior in regard to today's
hearing.
Mr. McClintock. Without objection.
Mrs. Napolitano. And I will state for the record I will
quote from it that there are other issues, and I would like to
share this with you after the hearing so that you understand
what they are answering to us as a committee.
What they do state in paragraph 3 is that they will leave
it to EPA and the court to discuss the details of the proposed
rule. It is our understanding that the proposed rule is not
designed to expand the applicability beyond existing
regulation, and that is not designed to cover groundwater, and
the rule does not expand the access reach to cover additional
irrigation or alter existing water transfers, et cetera, et
cetera.
I would like to make sure that we share that with you so
that you understand what they are saying.
Also, if you are interested, we have and will get to you
via some email capability the answers to some of the questions
that were in the Transportation and Infrastructure Subcommittee
to deal with some of the issues that you bring up today, Mr.
Chair. I will deal with that later.
But I would like to ask Mr. Martin. You are concerned about
the proposed rule, that it would dictate the tributaries be
jurisdictional along with water adjacent to tributaries and
manmade conveyances. Are these features you raise concerns
about jurisdictional under current rule? Are they
jurisdictional under the current rule?
Mr. Martin. If I understand your question, it is subject to
the interpretation usually of local Corps people, and the
people that we have run into have said that, yes, they are
jurisdictional.
Mrs. Napolitano. Well, I would like to be able to see
something so that we can take it up with the Corps because if
it is not in the rule, then they should not be acting
differently.
Mr. Martin. We agree.
Mrs. Napolitano. And again, Mr. Martin, in general, if the
jurisdictional determination has already been made and they are
considered ``Waters of the U.S.,'' now then they would continue
to be considered ``Waters of the U.S.''
If a jurisdictional decision has been made and they are not
covered, then the rule would not expand coverage to them.
Where in the proposal do you read that this expands
coverage to those facilities?
Mr. Martin. Because it talks about all ditches. Even though
it says that they will be excluded, if you look at the
definition of exclusion, there are enough questions there that
it appears they come in the backdoor and they particularly
include all ditches because of their connection to tributary
waters.
Mrs. Napolitano. Well, that is something that maybe needs
some clarification rather than the assumptions that it will
impact them.
Mr. Martin. We would like to have that type of
clarification.
Mrs. Napolitano. Mr. Lemley, you spoke about the importance
of clean water to the craft beer industry. I have one of those
facilities in my area. So I understand the issue that they have
already spoken to us about.
Would you tell us the importance of the industry as an
employer and also as to the local economies nationwide?
Mr. Lemley. Of course. Thanks for the question.
According to the Brewers Association, which is our national
trade group for craft brewers, the 2012 economic impact study
was their latest available. The craft brewing industry
contributes $33.9 billion to the U.S. economy. That represents
the impact of those 2,700 brewers, those 110,000 jobs, plus
another estimated 250,000 jobs in both distribution and retail
tiers.
And all of those businesses by the Brewers Association
definition are American owned companies.
Mrs. Napolitano. Would there be any other benefits that you
could enumerate on?
Mr. Lemley. Oh, of course. The number one benefit will be
to ensure there is clean water to craft beer with. Of course,
agriculture is very important to us. We may not completely
agree on this one, but we need those agricultural products. It
will ensure safe drinking water, we believe, to be available to
approximately 117 million more Americans.
And, you know, these rules as we have seen in Fort Collins,
they hopefully prevent flooding, filter pollution, and supply
critical fish and wildlife habitat. We saw that first hand in
Fort Collins last year when we experienced flooding.
Mrs. Napolitano. I think it is related to it, but do you
believe that the clean water rule helps provide clarity to
businesses that depend on our clean water?
Mr. Lemley. We believe that it helps provide clarity for
our business, absolutely.
Mrs. Napolitano. Thank you.
Mr. Tyrrell, your testimony brings up concerns regarding
the treatment of groundwater and the proposed ``Waters of the
United States'' rule, yet for the first time the proposal
explicitly excludes the definition of groundwater. Would you
not agree that that is an improvement over the previous rule
that does not explicitly exclude groundwater?
Mr. Tyrrell. Ranking Member Napolitano, I think that the
confusion is that there is an exclusion for groundwater, but
the inclusion of shallow subsurface water. In Wyoming,
subsurface water is groundwater. So conceivably you will have a
shallow subsurface connection between surface water bodies that
may be jurisdictional aside from the exemption of groundwater
in the rule. So it is really a clarity issue.
We do not understand how shallow subsurface is not
groundwater.
Mrs. Napolitano. Again, clarity. Thank you, Mr. Chairman.
Mr. McClintock. Mr. Tipton.
Mr. Tipton. Thank you, Mr. Chairman.
I would like to thank our panel for taking the time to be
able to be here.
This is a disturbing onslaught, Mr. Chairman, that we are
seeing come out of this administration, again, with the blue
rays. Then we had conditional use of permit. We now have the
regulatory scheme coming out of the EPA, which is essentially
the biggest water grab in American history in my estimation,
now being supplemented by the Forest Service with their
groundwater rules, impacting our states, impacting our
communities, impacting our ability to be able to deliver
affordable electricity for many of our communities.
My district is much like the one you described in Missouri,
not a lot of income coming in, but our senior citizens, our
young families trying to be able to get a start are seeing more
and more of their income being eroded by regulatory taxation,
and this is of deep concern running throughout the West where
water is a private property right.
We have state law, and we have priority-based systems,
which have worked well, to be able to provide clean, affordable
water, hydroelectric power, ability to be able to grow our
crops.
But as I have listened to your comments going through, we
are seeing that we are not seeing clarity come out. Mr. Martin,
you just talked about the ditches once again. We are going to
exclude ditches, but ditches are covered.
So do you have any idea what you are talking about, what
the end game is, what the result is going to be?
And have they asked you?
Mr. Martin. I do not. I think I would probably have to hire
either a hydrologist or a hydrogeologist to make a
determination every time I needed to do a little bit of work on
a canal or ditch to figure out whether it was excluded or not
excluded.
Mr. Tipton. So essentially the government is ringing the
door saying, ``We are here to help you.'' You are actually
going to see some hurt come out of this. It is going to cost
more money, is it not?
Mr. Martin. And it is going to delay very needed and very
good projects.
Mr. Tipton. Does the Forest Service Directive, Mr. Martin,
run contrary to longstanding Federal policy respecting the
rights of states in regulating groundwater?
Mr. Martin. No question. Every state has their own
authorities and laws on how they regulate groundwater. The
Forest Service is apparently trying to jump over that.
Mr. Tipton. What impact, if any, will the proposed rule,
the Forest Service Directive on groundwater, have on pending
reserved water right claims in states like mine, Colorado?
Mr. Martin. It is going to have an adverse effect because
now states are going to have to determine how the Forest
Service rules and directives apply to state groundwater rights.
Mr. Tipton. And particularly when you are a headwater state
like Colorado and some of our neighboring states in the West,
right?
Mr. Martin. That is correct. The State of Washington is
very similar to Colorado. I believe all of our reservoirs in
the Yakima Basin are on Forest Service lands.
Mr. Tipton. I think this is important because this is
supposed to be a transparent administration. These are policies
coming out of appointees who are put into office right now. Do
you feel that the impacted stakeholders like yourself were
adequately consulted during the development of this Directive?
Mr. Martin. Not at all. My understanding, this Rule has
been under consideration for 8 years, and this is the first we
have heard about it.
Mr. Tipton. So we have a policy that has been moving for 8
years. It is the first you have heard about, no real contact
coming through. How does that make you feel?
Mr. Martin. Not very good.
Mr. Tipton. Not very good. I can imagine.
So, Mr. Tyrrell, in the State of Wyoming, you guys are
feeling some of the impacts that I know we are in Colorado as
well. The Forest Service has stated in its submitted testimony,
and I will quote this, ``Nothing in the proposed directive
would affect states' role in the management of water rights.''
If the Forest Service would actually have shown up here
today to be able to testify, they could probably go into
details about that statement, but you deal in state water
rights every day. In your expert opinion, the Forest Service
statement I read, is that correct?
Mr. Tyrrell. I do not believe it is, Representative Tipton.
I do think it certainly had clarity problems much like the
WOTUS rulemaking. We do not know the effect of their
groundwater management implications on forests. We do know that
they are seeking by assertion a reserved right to groundwater,
which I think is inappropriate. That would put a priority pinch
on junior appropriators already on the force.
So the effects of the Directive are unknown and certainly
scary at this point.
Mr. Tipton. I think that is part of the challenge that we
are seeing, do you not? We are going after the surface water.
Now we are going after the subsurface water that is coming in,
the groundwater that is coming in, and these policies and the
impacts that they are going to have on our communities have the
great potential literally to be devastating to our farm and
ranch communities and our ability to be able to generate that
hydroelectric power and to be able to provide for some of the
essential needs that we have in each of our states.
So thank you for being here.
Mr. Chairman, my time has expired.
Mr. McClintock. Thank you, Mr. Tipton.
Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman.
First to Mr. Lemley, I appreciate the fact that you
mentioned the hops and barley in the Yakima Valley, but be it
known that we are doing some great barley and doing a lot of
hops research in the Willamette Valley, and before our blight
back in the 1930s, we were the principal producer, and we are
coming back.
Mr. Lemley. And we use both. So thank you.
Mr. DeFazio. Yes. Just added. Sorry, but I had to.
Mr. Clark, regarding the co-ops, there are a number of
questions you raise in your testimony that I wonder if you have
directed them to the Agency and asked specifically because none
of these are concerns about the transmission distribution and
the ditches that might run along your right-of-way to get in
there and maintain those, and whether or not even though those
are uplands, whether those would become regulated in any way,
et cetera?
I mean, have you directed some of the issues you are
raising in your testimony to the Agency to say, ``Can you
clarify this for us now?''
Mr. Clark. It is my understanding that there have been some
questions asked. I believe that that is going to be an
interpretation that is going to be on a project-by-project
basis. Where the next new transmission or where we are working
to maintain the existing transmission line, what structures are
going to be replaced? As you are standing there, someone is
going to be faced with the decision of does this particular
ditch, creek, stream apply to this definition.
And I do not believe without clarification in the document
beforehand that you can address your questions adequately in
advance. It is going to be administered in the field by the
boots on the ground, the local Corps administrations and their
interpretation as to whether or not you need a 404 permit.
Mr. DeFazio. But if they were to better defined ``upland,''
I mean, I assume that most of these ditches you are talking
about are not permanent flowing and they do not directly
connect into another body of water which is jurisdictional or
into a wetland, which is jurisdictional.
Mr. Clark. I believe in most cases that would be correct.
Mr. DeFazio. OK. So if you had a clear definition of
``upland,'' it would mean some certainty.
Mr. Clark. It would provide additional clarity, yes, sir.
Mr. DeFazio. OK. And then there was one on ponds
management. Again, you are concerned about the status of canals
used to channel water to the lake. Has that one been addressed
directly, you know, to the Agency?
I mean, it seems to me the way to comment on the proposed
rule is either to raise these questions in the proposed rule
and say, ``We are concerned. These things need further
definition. You know, they should be exempt activities,'' or to
try and get the Agency now--it is not always easy to get them
to do that--to say, you know, ``No, actually that will be
exempt under this rule.''
I mean one way or another, because this is a proposed rule.
Mr. Clark. There have been general questions submitted, but
with regard to how it applies to a specific project, you are
never going to get clarity until you are faced with that
decision.
Mr. DeFazio. Well, there can be categorical exclusions of
certain types of projects.
Mr. Clark. And our experience and what I have seen in this
proposed rule is these exemptions. The category exclusions are
strict to the point where a half of an acre for a transmission
line does not allow for the exclusion that I believe the
exclusion was intended for. It is going to require every
crossing to pass a litmus test of whether or not that qualifies
as a ``Waters of the United States.''
Mr. DeFazio. Half acre, is that for the entire length of
the line no matter how long it is?
Mr. Clark. It is a by project definition, yes, sir.
Mr. DeFazio. And what is a project definition? I mean, if I
am building a 20-mile long transmission line, is that a
project?
Mr. Clark. It used to be a project, and now I believe it is
going to require a by body crossing, and that is exactly my
point. The rules are changing such that there is not clarity as
to what you are even permitting when you go for an initial
permit.
Mr. DeFazio. OK. Well, again, as I did in my opening
statements, I suggest you make these as very specific concerns
addressed to the Agency in its rulemaking. I have to admit that
I am not intimately familiar with this particular rulemaking. I
have been working on another one which has to do with oil tank
cars I am more familiar with and just talked to the head of
OMB, was doing that yesterday about how that rule might be, and
he agreed with a number of concerns I raised.
So I mean, we should not just say they will not listen. We
should try and make them listen and propose reasonable concerns
to them during this comment period. That is what the law allows
for and that is why we got an extended comment period.
Mr. Clark. I appreciate your comments, and we do
participate in those comment periods.
Mr. DeFazio. Thank you.
Thank you, Mr. Chairman.
Mr. McClintock. Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Clark, thanks for being here today. Your testimony
noted, I think, 5 to 6 percent of Associated's power supply
comes from hydropower provided by the Federal Government's
hydropower projects. As an electric co-op, please provide
additional detail about the importance of the Federal
hydropower to your member consumers.
And I would love to hear your concerns in general about how
these new regulations like the ``Waters of the U.S.'' proposal
may affect electricity for all rural Missourians.
Mr. Clark. Specifically with regard to Southwestern Power
Administration, I made a brief reference to that earlier. Low
cost hydropower is very important to us in two ways. We are
able to schedule the low cost hydro at the most critical times
when the electricity is the most expensive, and also the
supplemental, the gift from God rain that we get provides us
with the cheapest form that we can use to provide power to our
neighbors or to our members. Very critical to manage our
system, and it keeps costs low.
Southwestern Power Administration, by the way, is also an
owner and maintainer of transmission, and what I would say is
they will be faced with the exact same challenges to interpret
and implement these same forms of overregulation that any
utility will, whether it be a cooperative, Southwestern is
going to have the same costs that they will charge through to
the reference power customers. Associated will pay 25 percent
of that.
Mr. Smith. I thought your testimony in making the statement
that it is longer to go through the permit process to build the
transmission lines than to build it feels like it is something
very similar. It is longer to get the permit approved for the
Keystone Pipeline than it is to build the Empire State
Building. So it is like a common theme right now that we are
facing.
Mr. Parker, I have a clarifying question about the
testimony submitted by the Bureau of Reclamation. I would ask
them, but apparently, of course, they are not here. They wrote,
``We also appreciate that the rule does not change in any way
existing Clean Water Act exemptions from permitting for
discharges of dredged and/or fill material in Waters of the
U.S. associated with agriculture.''
Mr. Parker, that statement seems to me to be quite
misleading at best. Is it your understanding that this rule
will not affect Clean Water Act exemptions for agriculture?
Mr. Parker. Well, I think that is a misstatement. As you
look at the impact on agriculture, there is an exemption for 56
practices, I believe it is, but you have to follow NRCS
guidelines in order to establish and meet that exemption.
Now, I guess some questions and uncertainty come into play
here. Is NRCS, that heretofore has been a friend of farmers and
ranchers, are they becoming regulatory and are they going to be
a policing agency?
Also, not all producers participate with NRCS. How do they
participate in the exemption?
I think the most telling concern we have is that this new
level of potential regulation, if you don't meet, opens our
farmers and ranchers up to citizen lawsuits. So if somebody was
to establish and tell us there is more uncertainty in
agriculture as exempted, I think just the opposite, Mr. Smith,
is occurring.
Mr. Smith. Thank you.
Mr. Martin, in the Bureau of Reclamation submitted
testimony today they also stated that the EPA and the Corps
included a proposal exclusion in the rule for ditches,
excavated wholly in uplands and draining only uplands with less
than perennial flow, including those that may carry
groundwater.
In light of your testimony today, can you explain how this
statement is also misleading and may lead individuals who
operate drainage districts, like those throughout my district,
believe that they have an exemption when they actually do not?
Mr. Martin. Well, if you look at the first part of the
exemption when they just say ``ditches,'' you would think you
might be excluded, but then you have to get into the as long as
they meet these certain requirements, which is the ``wholly''
in uplands. Uplands is not well defined. Draining only uplands,
not well defined.
Many ditches can be hundreds of miles long. Are they
draining only uplands for the whole 100 miles? And even if they
drain something that is not an upland for just a small portion
of that ditch, does that bring the whole ditch into the
jurisdiction, Federal jurisdiction?
And then you also talk about less than perennial flows.
Many of these ditches do flow on a year-round basis, but the
source of the water is no different than if they were an
intermittent stream. These are irrigation Ag. return flows in
these ditches, and just because you have them on a year-round
basis, now are all ditches now back-included?
Those are just some of the questions that we have on the
Rule.
Mr. Smith. Thank you, Mr. Chairman.
Mr. McClintock. Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chair.
I want to thank the witnesses for their testimony.
You know, maybe there is some valid criticism to the point
that some additional specificity would be desirable in a few of
these areas, after listening to the testimony and reading
through the record. However, I think it is unfair to proceed
with all of these worst case scenarios and hyperboles and
colloquies about what if this interpretation was given to this
type of ditch and additional permitting and additional burdens,
et cetera, extending into some fairly wildly exaggerated
scenarios.
To have that kind of colloquy as if there has not been very
specific testimony from the administration on many of these
exact same points, the Transportation and Infrastructure
Subcommittee had a hearing where the administration was asked
about these things, many of the same scenarios that the
Majority and the witnesses here have brought up as fears and
concerns, and they were answered quite specifically.
And it is very clear from this record, and if we are going
to have an honest discussion about this we need to acknowledge
it, that this is not an expansion of Clean Water Act authority.
It is just not. In fact, fewer ditches are covered under this
proposed new guidance than were covered under the 2008
guidance.
We have question after question that has been asked of
administration witnesses: ditches on mine sites, prior
converted croplands, wastewater treatment, other ditches,
uplands, artificial lakes, a channel created by a washed out
irrigation ditch, on and on. All of these scenarios were put to
administration witnesses.
And on point after point after point the answer was very
clear: no, those are not covered. Those are not jurisdictional.
There is no new expansion of authority. There is no new
permitting.
So to continue to pretend like this is some vast overreach,
frankly, I think, calls into question the credibility of this
hearing.
I am also struck by the selective interest in deference to
states on water rights because I am hearing that theme a little
bit, especially with respect to groundwater.
And, by the way, I want to commend Wyoming and other states
that do regulate groundwater. I come from California where it
is the wild Wild West truly, and we have no regulation of
groundwater. So hats off to you folks in other western states.
But it was just a few months ago that this House passed,
with the Republican Majority largely passing it, a bill that
would have run roughshod over 100 years of California water
rights, would have stripped control and authority from the
State Water Resources Control Board, and basically laid waste
to all sorts of water rights provisions in the State of
California.
My understanding is there are negotiations, possibly a
coming Conference Committee, taking place on that bill right
now, but water rights in the State of California did not seem
to trouble the Majority one bit when we passed that sweeping,
preemptive piece of legislation a few months ago.
And if I am not mistaken, a couple of my colleagues on the
Majority served with me in California when I and others were
always trying to give the state more authority to regulate
groundwater. We never were successful. That was always fiercely
opposed.
However, we see here a hearing that is sort of premised
around the idea that the Federal Government on the Forest
Service lands should leave this groundwater stuff to the
states. Well, it seems to me now we are really in an
interesting predicament because if you do not want the State of
California to regulate groundwater and you do not want the
Federal Government to regulate groundwater, then I guess we are
in a situation where this is just not a very serious policy
inquiry. Whatever this hearing may be about, it does not appear
to be about any kind of consistent or coherent deference to
states or water policy or an honest look at the record that has
actually been produced by the administration on what these
proposed rules actually mean.
So that was a statement and not a question, but I will ask
Mr. Tyrrell one question in the time I do have remaining. I
appreciate your testimony because it goes to the point that our
clean water laws are actually important to our country, to our
economy.
And I guess I want to ask you in a fairly open ended way.
You are a businessman. Do you think it is appropriate as a
business operation that you are required to have pollution
controls if you discharge into small streams and wetlands and
tributaries that contribute to the Waters of the United States?
Mr. Lemley. Sir, are you asking me or Mr. Tyrell?
Mr. Huffman. Mr. Tyrrell. I am sorry. No, my witness from
the New Belgium Brewery.
Mr. Lemley. Yes, sir. That is me.
Mr. Huffman. Yes.
Mr. Lemley. Of course we believe that if it were to
discharge water into stream, headwaters, ephemeral streams that
we should be regulated. We have a storm water permit for our
storm water at the brewery and all of the required permits for
our wastewater treatment plant.
Mr. Huffman. Great. Thank you all for your testimony. I
appreciate it.
Mr. McClintock. Mr. Gosar.
Dr. Gosar. Thank you, Mr. Chairman.
On June 2, Congressman David Schweikert and I held a joint
field hearing in Arizona on the EPA's proposed rule to expand
the definition of navigable waters of the United States. Five
Members of Congress, including Lamar Smith, Chairman of the
House Science, Space and Technology Committee, participated in
the hearing, and we heard testimony from nine Arizona
witnesses.
That hearing provided some great insights in regards to
real people in Arizona who will be negatively impacted by a
rule made here by bureaucrats in Washington, DC. Let me
highlight some of those.
Stephanie Smallhouse, testifying on behalf of the Arizona
Farm Bureau, testified that the newly proposed EPA rule for
``Waters of the U.S.'' would be devastating to my family's
farming operation, as well as hundreds of others in
agricultural entities in Arizona. This proposed rule is an
economic disaster and a dream killer for my kids.
Bob Lynch, a very accomplished water attorney, testifying
on behalf of the Irrigation and Electrical Districts
Association of Arizona said, ``The EPA and the Corps have
driven a truck through Justice Kennedy's opinion in Rapanos.
This may be the biggest jurisdictional overreach I have
witnessed in 50 years of law practice. I hate to say it, but
the only people who are coming out ahead on this proposed rule
are lawyers.''
Just like the hearing we are holding today, the Agencies
are invited, and just like the hearing we are holding today,
not one Agency official showed up to hear from real people or
answer questions about the proposed rule.
I want to make sure that all the people who took the time
and effort to participate in the 3-hour June 2 Arizona hearing
have their voices heard. Mr. Chairman, I would like to ask
permission to submit the witness testimonies and statements
from the hearing for the Record.
Mr. McClintock. Without objection.
Dr. Gosar. I do have a few questions that I would like to
take the time to ask.
Now, the ``Waters of the U.S.'' proposed rule directly
contradicts aspects of four U.S. Supreme Court decisions. These
decisions have restrained Federal agencies and imposed limits
onto the extent of Federal Clean Water Act authority. Mr.
Martin, Mr. Tyrrell, Mr. Parker and Mr. Clark, do you believe
the EPA is overreaching with the ``Waters of the U.S.''
proposed rule in regard to the Supreme Court?
Mr. Martin. I do.
Dr. Gosar. Now, Mr. Lemley, are you familiar with the
Constitution?
Mr. Lemley. Yes, sir.
Dr. Gosar. And the law of the land is held by what? The
last jurisdiction would be what? Would it be the Supreme Court?
Mr. Lemley. Yes, sir.
Dr. Gosar. Are you kind of taken back that there were
actually four decisions that contradict this expansion of
power? Does that kind of concern you?
Mr. Lemley. No, sir, it does not because----
Dr. Gosar. Really? Whoa, whoa, whoa. So the law of the
land, the Supreme Court jurisdictionally is number ``uno,''
right? You just said that. So that does not bother you, that
you are accepting that the Federal bureaucracy is superseding
the Supreme Court? That does not bother you?
I think that is interesting.
Mr. Tyrrell, you testified that the authority for the
proposed directive on groundwater management does not exist. If
there is no statutory authority that exists, how does the
Federal Government satisfy asserting Federal reserve rights to
groundwater?
Mr. Tyrrell. Mr. Chairman, the only time I have seen a
Federal reserve right asserted in any type has been either
through congressional action or through the result of the state
or Supreme Court litigation or settlement. I have not seen it
asserted as policy before, and that was troubling to me.
Dr. Gosar. Especially in light of what I just cited.
Mr. Tyrrell, you also testified that the Forest Service
Groundwater Directive will harm state's rights negatively and
negatively impact your state's water users. In a time of
extreme drought in the West and scarce water resources, how
concerning is this directive?
And can you elaborate on some of the possible consequences
for state and private water users?
Mr. Tyrrell. Mr. Chairman, Representative Gosar, yes, the
concern, number one, would be timing. To the extent the
Directive would delay or impact anybody being able to get a
permit on the Forest if they are not the Forest, and we do
issue permits to grazing permittees, water right permits to
grazing permittees for wells, stock ponds on Forest property. I
do not know the impact at this point of the Groundwater
Directive on those people's ability not to get my permit, but
to get the ability to build it on their allotment.
Second, the purported connection or the presumed connection
of groundwater to surface water has impacts that we cannot see.
If that connection which is contrary to Wyoming State law, by
the way, which we presume that groundwater and surface water
are separate until they are shown to be connected, and then we
regulate them in that way; if the connection is presumed to
exist, there could be effects on surface water in the
regulation of those surface waters and work on diversions, et
cetera, because of the groundwater connection. That is a
concern of ours.
Dr. Gosar. Well, in Arizona, it is the same way. We have
some delineation just like Wyoming does. So we do have the same
concept of oversight.
So thank you, Mr. Chairman. I yield back.
Mr. McClintock. Mr. LaMalfa.
Mr. LaMalfa. Thank you, Mr. Chairman.
I, too, come from California, the far north part where we
fight against regulations, overreaches all the time. So we do
get into conundrums sometimes. Do we want to be more heavily
regulated by a state or a Federal body? For me it comes down to
what provides the most freedom.
In California that might more often be maybe a Federal reg.
In other free states like Wyoming, you might be safer under a
state reg. So it is kind of a tough deal one way or the other.
On my side, my tie goes to the citizens.
So it is fascinating the different ways things can be
interpreted in this process. So just a question for Mr. Lemley
from New Belgium Brewing Company.
You have growers you contract with for your barley and your
hops and some other inputs used, grains. Do they know about
your position on these? Are they part of your trifold on
sustainable growing and all of that that you have put out for
people to see in Fort Collins and stuff like that?
Mr. Lemley. I am sure they are aware of our position on
this. We have been very public about it.
Mr. LaMalfa. OK. All right. I have a lot of grain growers
in my district I know of and across the Fruited Plain, Farm
Bureau guys, and a lot of them are not happy with these new
regulations. They feel like, as in my opening statement, if
they want to change their irrigation system in any way now they
are going to be subject to that being a waterway of the United
States or somehow navigable.
What are the lines of beer that you all have? Fat Tire is
one of them?
Mr. Lemley. That is correct. Yes, Fat Tire, Ranger, Shift.
Mr. LaMalfa. Ranger, Shift. OK.
Mr. Lemley. Several beers every year.
Mr. LaMalfa. OK. My guys will be interested in what beer
products they will be drinking after work.
So Mr. Tyrrell, the EPA's proposed redefining of these
waterways of the United States under the Clean Water Act
broadens existing categories--I do know how it can be
interpreted this is somehow narrower or lesser--of Federal
jurisdiction in the tributaries, et cetera, and areas of
jurisdiction like shallow subsurface water connections. This is
new stuff.
We have heard about the Supreme Court opinion that states
that Federal water jurisdiction is not unlimited, or meaning is
limited. We heard EPA's proposed rules consider most, if not
all, waters interconnected without regard to how much or how
often they actually contain water.
There are supposed to be exemptions, such as a heavily
qualified exemption in the rule for ditches, draining upland as
we talked about a little bit earlier, not well defined,
subjective determinations and litigation. And this is the scary
part for my growers, for my constituents because they are
subjective.
So maybe you have one representative coming out to check on
what you are doing or flying over, whatever they do. They might
think it is OK this day, this week, and then the next time you
go to do it on a different field, changing a crop, plowing or
whatever, you might have a different bureaucrat that shows up
and says, ``You cannot do that, and we are going to haul you
into court,'' as some of my people have been threatened under
lawsuit, litigation, and it goes on for months, and years
before they even get an answer.
So they are sitting there with their land tied up, unable
to be productive on it, still paying taxes, still making land
payments, all of that because a bureaucrat or someone has a
threat against them.
So, Mr. Tyrrell, with all of the different ways EPA can
find a water to be jurisdictional under the proposed rule, can
you think of a water body that would not be under Federal
jurisdiction under the proposed rule?
Is there anything that can really and truly be exempt,
again, taking into account a different interpretation by a
different bureaucrat, different day to day?
Mr. Tyrrell. Mr. Chairman, Representative LaMalfa, I cannot
off the top of my head, and the concern is that with the
proposed rule we have talked to the local Corps office, for
example, and it looks to be case by case, which means there is
a lack of clarity in knowing whether you are impacted or not.
Mr. LaMalfa. If you get an opportunity to litigate or fight
or whatever, maybe in every case what you may want to do even
if you are putting in a pipeline for better water efficiency,
better water retention, in your own blankety-blank ditch, I
mean, I have a farm. OK? My family, those before me, built the
drainage ditches. They built the irrigation ditches. Now
someone is telling me that these are no longer mine. They
belong to the Federal Government basically.
I do not see them paying the taxes on it. If I just decide
to fill that ditch in because I am tired of it, am I going to
have to hear from them on this?
I mean, where does it stop?
Mr. Tyrrell. Once again, I think I do not know. The clarity
is the issue for me. When ditches are referred to as
constructed wholly in uplands, that is of no help to me because
our water users have to have one end of their ditch on the
creek, and most of the ditches that our water users are
concerned about and that I am concerned about on their behalf
are those that divert water for irrigation or even municipal
use.
And the question is those are not probably going to qualify
as wholly upland. Parts of them may cross uplands, but where
they divert and where they use water are not going to be in
uplands. They are going to be in lowlands, and that is the
question that we have, the effect on ditches defined as wholly
upland.
We do not have many of those that are of concern. It is the
other thousands of miles of ditches.
Mr. LaMalfa. OK. My time is up, sir, but thank you again.
Again, me and my beer drinking, grain growing friends are going
to be very interested in how this comes out. I think it needs
to be withdrawn because this is really a shot across the bow of
all of us in the West.
Thank you, Mr. Chairman.
Mr. McClintock. Mr. Costa.
Mr. Costa. Thank you very much, Mr. Chairman.
I think this subcommittee's focus today on this area is
important, and I think that the questions and the comments by
my colleagues really point out the frustration and the concern
as these proposed regulations are being considered and what
will occur if they are implemented while our worst case fears
come home.
Mr. Martin, in your written testimony you cite the numerous
regulations that are currently out for public comment. You
noted seven different rules that could have a significant
impact on water users and providers, three of which are
directly related to the implementation of the Endangered
Species Act, which has been very problematic as you may know in
California as it relates to the operations of both our Federal
and state water projects that have added to a Mother Nature
drought to a manmade regulated drought that has exacerbated the
circumstance.
On May 1, 2014, I along with many of my colleagues sent a
letter to Administrator McCarthy and Secretary McHugh
requesting that the Clean Water Act rule be returned to the
Agencies until scientific basis for the rule is complete.
Mr. Chairman, we have over a majority of the House of
Representatives on a bipartisan basis that have signed this
letter. I would like to submit it for the record.
Mr. McClintock. Without objection.
[The letter to Administrator McCarthy and Secretary McHugh
dated May 1, 2014 presented by Mr. Costa follows:]
Congress of the United States,
Washington, DC,
May 1, 2014.
Hon. Gina McCarthy, Administrator,
U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, NW,
Washington, DC 20460.
Hon. John M. McHugh, Secretary,
Department of the Army,
The Pentagon, Room 3E700,
Washington, DC 20310.
Dear Administrator McCarthy and Secretary McHugh:
We write to express our serious concerns with the proposed rule re-
defining the scope of Federal power under the Clean Water Act (CWA) and
ask you to return this rule to your Agencies in order to address the
legal, economic, and scientific deficiencies of the proposal.
On March 25, 2014, the Environmental Protection Agency (EPA) and
the U.S. Army Corps of Engineers (USACE) released a proposed rule that
would assert CWA jurisdiction over nearly all areas with any hydrologic
connection to downstream navigable waters, including man-made
conveyances such as ditches. Contrary to your agencies' claims, this
would directly contradict prior U.S. Supreme Court decisions, which
imposed limits on the extent of Federal CWA authority. Although your
agencies have maintained that the rule is narrow and clarifies CWA
jurisdiction, it in fact aggressively expands Federal authority under
the CWA while bypassing Congress and creating unnecessary ambiguity.
Moreover, the rule is based on incomplete scientific and economic
analyses.
The rule is flawed in a number of ways. The most problematic of
these flaws concerns the significant expansion of areas defined as
``waters of the U.S.'' by effectively removing the word ``navigable''
from the definition of the CWA. Based on a legally and scientifically
unsound view of the ``significant nexus'' concept espoused by Justice
Kennedy, the rule would place features such as ditches, ephemeral
drainages, ponds (natural or man-made), prairie potholes, seeps, flood
plains, and other occasionally or seasonally wet areas under Federal
control.
Additionally, rather than providing clarity and making identifying
covered waters ``less complicated and more efficient,'' the rule
instead creates more confusion and will inevitably cause unnecessary
litigation. For example, the rule heavily relies on undefined or vague
concepts such as ``riparian areas,'' ``landscape unit,''
``floodplain,'' ``ordinary high water mark'' as determined by the
agencies' ``best professional judgment'' and ``aggregation.'' Even more
egregious, the rule throws into confusion extensive state regulation of
point sources under various CWA programs.
In early December of 2013, your agencies released a joint analysis
stating that this rule would subject an additional 3 percent of U.S.
waters and wetlands to CWA jurisdiction and that the rule would create
an economic benefit of at least $100 million annually. This calculation
is seriously flawed. In this analysis, the EPA evaluated the fiscal
year 2009-2010 requests for jurisdictional determinations--a period of
time that was the most economically depressed in nearly a century. This
period, for example, saw extremely low construction activity and should
not have been used as a baseline to estimate the incremental acreage
impacted by this rule. In addition, the derivation of the 3 percent
increase calculation did not take into account the landowners who--
often at no fault of their own--do not seek a jurisdictional
determination, but rather later learn from your agencies that their
property is subject to the CWA. These errors alone, which are just two
of many in EPA's assumptions and methodology, call into question the
veracity of any of the conclusions of the economic analysis.
Compounding both the ambiguity of the rule and the highly
questionable economic analysis, the scientific report--which the
agencies point to as the foundation of this rule--has been neither
peer-reviewed nor finalized. The EPA's draft study, ``Connectivity of
Streams and Wetlands to Downstream Waters: A Review and Synthesis of
the Scientific Evidence,'' was sent to the EPA's Science Advisory Board
to begin review on the same day the rule was sent to OMB for
interagency review. The science should always come before a rulemaking,
especially in this instance where the scientific and legal concepts are
inextricably linked.
For all these reasons, we ask that this rule be withdrawn and
returned to your agencies. This rule has been built on an incomplete
scientific study and a flawed economic analysis. We therefore ask you
to formally return this rule to your agencies.
Sincerely,
Chris Collins,
Kurt Schrader,
Bill Shuster,
Lamar Smith,
Fred Upton,
Doc Hastings,
Frank Lucas,
Collin Peterson,
Hal Rogers,
Sam Graves,
Bob Goodlatte,
Dave Camp,
Darrell Issa,
John Kline
Pete Sessions,
Jeb Hensarling,
Jeff Miller,
Candice Miller,
Mike Rogers,
Bob Gibbs,
Mike McCaul,
Paul Ryan,
Members of Congress.
______
Mr. Costa. And we hope that an answer will be forthcoming.
We also understand that the rule, the EPA and the Corps
have relied on what they call a draft synthesis which is
currently under review by the Scientific Advisory Board of more
than 1,000 published, peer-reviewed scientific reports. In the
preamble of the proposed rule, the Agencies state that the rule
will not be finalized until the Scientific Advisory Board
review and final report are complete.
Many of us in California as a result and also the Western
States are concerned that the regulated community has expressed
serious concerns about the final report not being available in
time for public comment on the period of the rule.
A couple of questions, Mr. Martin. Do you believe that the
scientific basis for the rulemaking should be available for
review prior to the rulemaking process being initiated?
Mr. Martin. No question, Congressman.
Mr. Costa. OK.
Mr. Martin. These are very complex rules, and if they are
still in draft form, the underlying basis for that, it is very
difficult to read these rules.
Mr. Costa. And what are the challenges to the regulated
community if the scientific basis for the rule is also in a
draft form during the public comment period on the rule?
Mr. Martin. That's correct.
Mr. Costa. Therein lies the whole purpose of why we are
trying to call time out, in essence, to get an understanding
because the potential implications of this rulemaking is far
and wide, and I for one am very fearful of the law of
unintended consequences, and maybe that was not the intent, but
the regulatory framework and the challenges that we have had in
California just as an example, in the last decade in the use of
best science because a question as new science becomes
available and as other factors are considered in terms of the
contributions to the impacts of the waterways we are trying to
deal with.
So I am very concerned. The Environmental Protection Agency
needs to, I think, sit down and provide an opportunity for
those who are potentially to be regulated, an opportunity to
understand the breadth and width and scope of what these
proposed regulations will do, and that is not happening as far
as I can tell.
Do you care to comment?
Mr. Martin. We agree completely with that, Congressman.
Mr. Costa. Would any of the other witnesses care to
comment?
Mr. Lemley. I would like to. Thank you for a brief minute
here.
Obviously there needs to be clarity in the regulation,
which is exactly why I think we are talking about a proposed
comment. The comment period is open until October, I believe,
and I just do not want us to sit here and think like the rule
has already been accomplished, when there is time for a back-
and-forth with the Agency.
Mr. Costa. Mr. Chairman, I do not know if it is
appropriate, but certainly I think it ought to be under
consideration for a potential subcommittee hearing to allow
those in California to testify on this proposed rule and where
we might be able to make a difference.
I mean, this comes up time and time again about the
potential impacts and the fears and the concerns, given the
whole nature of what has taken place over the last just 8 years
in California.
My time has expired. I want to thank the members of the
subcommittee and the witnesses for your testimony and look
forward to continuing to work on this important issue.
Mr. McClintock. Thank you.
Ms. Lummis.
Mrs. Lummis. Well, thank you, Mr. Chairman.
I want to thank Pat Tyrrell, our Wyoming State Engineer,
for testifying today.
There really is no position more important in the State of
Wyoming than the State Engineer, and Mr. Tyrrell comes from a
long line of highly qualified advocates for Wyoming water, for
state regulation, and his work with state engineers throughout
the West has made for very cooperative relationships, and the
work that Western state engineers do on working with each other
on water issues, trying to resolve them before they reach the
courts, has been extraordinary.
And they can even be resolved in the courts if necessary.
Hence our concern, that now the Federal Government is weighing
in in areas where they have never weighed in before, and
bringing this issue through Federal rulemaking is something
that states just find contemptible.
Here is an example, and now I would like to start asking my
questions. Mr. Tyrrell, in Wyoming, is it not true that surface
water and groundwater are regulated separately unless studies
confirm that they are so connected as to constitute one source
of supply?
Mr. Tyrrell. Mr. Chairman and Representative Lummis, yes,
that is correct.
Mrs. Lummis. Now, does the Forest Service reverse this
presumption and presume interconnectivity unless proven
otherwise?
Mr. Tyrrell. Yes, they do in their Directive, proposed
Directive.
Mrs. Lummis. Now, can you explain the significance of that
Directive and what that would do and how it might impact water
rights holders in Wyoming and elsewhere in the West?
Mr. Tyrrell. The concern that I have is the connection to
surface water might then lead to regulatory effects in the
surface water regime. Another part of the proposed Directive I
failed to mention a minute ago is their reach onto adjacent
lands which are not Forest lands. My concern there might be a
water proposal, a permit application into my office off the
Forest that would purport or propose to produce groundwater or
build a stock dam or some other water feature that might then
be challenged because of a connection to groundwater on the
Forest, a presumed connection.
So the cost of disproving that connection would fall to the
applicant.
Mrs. Lummis. In order to do your job effectively as State
Engineer, how important is it that the Forest Service play by
the same rules as any other land owner or water user in the
state?
Mr. Tyrrell. It is vitally important, and it is part of the
reason we entered an MOU with them just 2 years ago. The Forest
uses water through their own uses at campground and offices and
for their own rights, and they get water rights from the State
of Wyoming to do that.
We also have private permittees on the Forest that get
permits in their name, and they have to be able to exercise
those water rights. It is vitally important to be able to
access that water whether you are an allottee or the Forest
itself.
Mrs. Lummis. Can you walk us through how the Forest Service
Directive intrudes on state water rights and contradicts the
MOU that you currently have with the Forest Service?
Mr. Tyrrell. The primary concern I have with contradiction
with state water rights, and I have mentioned this already, is
the proposed assertion of reserve rights. As relates to the
MOU, we negotiated that MOU to clarify our permitting process
when either private or Forest permit applications for water
rights come into my office. That MOU says nothing about reserve
rights to groundwater. That MOU says nothing about the Forest
Service commenting on applications on adjacent lands.
The MOU has a 30-day window for Forest comments on
applications by non-Forest applicants. The Directive has no
review period and no standard of review.
The MOU says the Forest will receive a courtesy notice for
time limited permits. The Directive does not mention time
limited permits.
And finally, the MOU says nothing about that hydrologic
connection or any review thereof for permit applications.
Mrs. Lummis. With all the different ways the EPA can find
water to be jurisdictional under the proposed rule, can you
think of a water body that would not be under the Federal
proposed rule?
Mr. Tyrrell. Off the top of my head, Representative Lummis,
I cannot.
Mrs. Lummis. What about the exemptions? Do they help?
Mr. Tyrrell. The exemptions, I think, and we have talked
about this, are more confusing than they were under previous
guidance. We have gone from maybe 25 exemptions to an
interpretive rule of over 100, and I think we still find the
analysis on the ground will be case by case.
Mrs. Lummis. Thank you.
Mr. Chairman, I may have to leave because oddly, we are
having a simultaneous hearing in the Science, Space and
Technology Committee on the use of secret science. I am trying
to get a handle on the use of secret science by the Federal
Government. That seems to be a pattern that we are seeing now
with regard to Federal agencies.
So the cross-pollination of what is happening in science
right now and in this committee is a serious concern and is a
commonly held problem.
Thank you for holding this hearing, Mr. Chairman. I yield
back.
Mr. McClintock. Thank you.
We have just been joined by Mr. Labrador. If you would like
a few minutes, we are going to go to a second round or you can
be recognized now or both.
Mr. Labrador. I will just ask a couple of questions. Thank
you, Mr. Chairman.
Mr. Martin, you state in your written testimony that the
National Water Resources Association and other water users are
currently reviewing no less than seven Agency rules currently
out for comment that have the potential to seriously impact
water users. Many of these rules are so complex it is almost
impossible to understand and review each rule because of their
heavy volume.
In your experience, are Agencies interested in an open and
transparent process that includes input from the water users?
Mr. Martin. Well, as stated earlier, the Forest Service
groundwater rule was done in a vacuum. It was not done with any
sort of input to our knowledge, and we are some of the biggest
water users and rely on water within the Forest Service.
It is difficult. These rules are hundreds of pages long,
and to get through them in the short period of time is a very
difficult process.
Mr. Labrador. So the EPA and the U.S. Army Corps of
Engineers claim the proposed rule clarifying the ``Waters of
the United States'' under the Clean Water Act will not expand
Federal jurisdiction. Can you give some examples and
possibilities of how that proposed rule will, indeed, expand
the EPA and Corps authority over millions of acres?
Mr. Martin. I believe even the EPA and Corps have
determined that there will be an expansion of jurisdiction. The
question is just how much, and for the people I represent our
biggest concerns are ditches, canals, artificial conveyances
that on the surface appear to be excluded, but if you look
behind the terms in the rule itself, it looks like it may be
back-included.
Mr. Labrador. OK. The EPA and Corps released the proposed
rule in an effort to clarify protection under the Clean Water
Act for streams and wetlands. However, the proposed rule has
raised numerous questions about definitions in the rule and how
they impact the irrigators, water companies, and other water
users.
What are some of the areas in the rule that lack clear
definitions and require further clarification?
And I would like all of you to answer that question as
well, but we start with you, Mr. Tyrrell.
Mr. Martin. I will start right off and just right off the
surface it is ditches and artificial conveyances and what is in
uplands. Those are two of the biggest issues for my clients.
Mr. Labrador. OK.
Mr. Tyrrell. I would agree with those. I think you have the
tributary definition that may be expansive, the upland
question, and the shallow subsurface water, which in our
lexicon would be groundwater.
Mr. Lemley. Well, of course, I am not the water expert, but
I'm sorry. Would you repeat the question please?
Mr. Labrador. Yes, absolutely. So what are some of the
areas in the rule that lack clear definitions and require
further clarification?
Mr. Lemley. Well, I think we are hearing that from the
other witnesses today, and I think that this is a comment
period at which time they can ask EPA for that clarification.
Mr. Labrador. OK.
Mr. Parker. And from a farming and ranching standpoint, you
in Idaho understand this very well. We do a lot of diversion of
streams and irrigation and do flood irrigation across farms and
then return flow because somebody has a downstream right to
that water.
I met with Region 8 EPA 2 weeks ago, and I asked about the
exemption on return flows, and if that water runs across the
farm, is delivered into an irrigation ditch and then returned
to the stream--the Region 8 EPA expressed an interest in that
now becoming a point source of pollution, and that changes the
whole dynamic, Representative.
Mr. Labrador. Thank you.
Mr. Clark, what are your thoughts?
Mr. Clark. Well, I think it is easiest to point to and we
have mentioned the upland definition. I think my biggest
concern is even if you can clarify a definition is getting a
consistent application of those tasks with enforcing what may
appear to be clear, but often is not consistent.
Mr. Labrador. OK. Thank you, Mr. Chairman. I yield back my
time.
Mr. McClintock. Thank you.
We are going to go to a quick second round and mainly
because I feel the need to correct the record on a number of
items. My colleague from California, Mr. Huffman, charges that
the House itself overruled state water rights laws in the Nunes
legislation of the last Congress and most recently in the
Valadao legislation.
I have had to correct him before on this. I feel compelled
to correct him again. That legislation specifically reinforced
state water rights law as it applied to joint Federal and state
operation of the Central Valley Project. It required the State
of California to obey its own water rights laws. They had
authority that clearly exists under the contracts clause of
Article 1 of the Constitution, the takings clause of the Fifth
Amendment and the privileges and immunities clause of the 14th
Amendment.
The Northern California Water Association, speaking as an
umbrella group for all of the water districts in northern
California wrote in reference to this provision, ``the bill if
enacted would provide an unprecedented Federal statutory
express recognition of and commitment to California State water
rights priority system and area of origin protections.''
That is exactly the opposite of what these EPA and U.S.
Forest Service regulations would do.
I also want to make it clear that the Bureau of Reclamation
was invited to this hearing to testify on how it would
implement the EPA's rule, and the U.S. Forest Service was
invited to testify to discuss its proposed rule. Both declined
the committee's invitation.
Finally, Mr. Lemley, you have given testimony involving the
entire brewing industry. Are you testifying on behalf of any
association of brewers or other trade association, or are you
just here representing your own company?
Mr. Lemley. That is correct, Mr. Chairman. I was simply
citing the statistics from the Brewers----
Mr. McClintock. So you are only representing your own
company, not the brewing industry or any trade associations?
Mr. Lemley. I am here on behalf of New Belgium Brewing
Company, yes, sir.
Mr. McClintock. OK. Mr. Parker, Mr. Huffman alleges that
these uncertainties that many of you have testified to are
simply speculative, and they are denied by the administration.
Are you satisfied by these assurances?
Mr. Parker. I do not think they are speculative at all when
you think of the groups that are out there looking for
opportunities to establish, sue and settle opportunities or to
attack farmers and ranchers for various practices.
Mr. McClintock. So it is not only the bureaucrats that you
have to worry about giving often wildly different
interpretations. You also have to worry about being sued by
every third party interest group?
Mr. Parker. That is exactly what it opens up, and we have
Western Watershed, one of those wonderful groups out of Idaho
that is down in Utah suing and settling and suing and harming
our industry down there, grazers or whatever, and, yes, it
opens the door much wider, Mr. Chairman.
Mr. McClintock. And, by the way, these rules would be
interpreted by the individual managers in the field, not by
whoever was testifying to the T&I Committee.
Mr. Parker. In fact, the Forest Service directive says that
it is the line employees that make those decisions.
Mr. McClintock. Mr. Martin, Mr. Tyrrell, are either of you,
Mr. Clark; are any of you satisfied with these assurances?
Mr. Martin. No, Mr. Chairman.
Mr. Clark. No, sir.
Mr. McClintock. Mr. Parker, I mentioned earlier in my
questioning of Mr. Martin the circumstances that exist
throughout the Sierra, you know, many, many properties that
have ditches running through them that run into gullies, that
run into streams, that run either into a navigable river or
onto Forest Service land.
Would these properties come under the jurisdiction of the
EPA and the U.S. Forest Service if they attempted to do
anything affecting the ditch, for example, grading a driveway
that passed over that ditch?
Mr. Parker. I believe so, and when you look at a state like
Utah and I think Idaho is in a similar circumstance, we have in
excess of 70 percent of the water that we rely on annually that
is deposited in snow or rain on the Forest system lands, and it
is delivered to communities, has been for 150 years, and I
think this explicitly goes into that area.
Mr. McClintock. So right now that individual just has to
get a grading permit from the county. Under this law they would
then have to go through the EPA and presumably the U.S. Forest
Service in order to get permission to make a simple
modification on their property?
Mr. Parker. I think that is the case. In Wyoming, there was
a pond built near where I ranched as a young boy up in the
Bridger Valley that they went through all of the state
permitting that was necessary, built the pond, and now they are
under some kind of duress from the EPA for building that and
affecting a wetland.
Mr. McClintock. OK. Thank you.
Mrs. Napolitano.
Mrs. Napolitano. Thank you.
Mr. Lemley, you were asked a question that you were not
finished giving an answer. Would you like to elaborate how the
proposed rule helps to clarify the uncertainty that resulted
from the Supreme Court's decision?
Mr. Lemley. Yes. Thank you.
I mean, I believe that this is the way that the government
operates, is that a regulatory agency looks to do its very best
for the people of the country, and whether that is something
new or in this case something that seems to restore protections
that were previously there, that is the agency's rule.
And so I believe that this hearing is good, and that the
comment period will continue to be good as we all express our
concerns, those who have them, to the EPA for how the rule will
be carried out, but I do not believe that the EPA is
challenging the Supreme Court.
Mrs. Napolitano. Thank you.
Mr. Tyrrell, you are aware that under a 2008 Bush guidance
shallow subsurface connections between water bodies would be
sufficient to demonstrate Clean Water Act jurisdiction. Yet
when asked about the groundwater subsurface connection, EPA
Deputy Director Preshevski, stated 2 weeks ago that ``excluded
from the proposed rule is groundwater, including groundwater
drained through subsurface drainage systems.''
Would you advocate that any subsurface connection be
eliminated under any circumstances?
Mr. Tyrrell. Mr. Chairman, Representative Napolitano, I
just want to understand, I guess, what the groundwater
exemption means. We know that there is a groundwater exemption.
I do not know, because the Science Advisory Report is still not
finalized and the draft rule is out, what the shallow
groundwater connection means from a regulatory standpoint.
If you would like, I can get additional depth to that
answer from our DEQ when I get home.
Mrs. Napolitano. If you would provide it to the
subcommittee we would be very grateful, sir.
Mr. Tyrrell. Thank you.
Mrs. Napolitano. And then to all of the panel, do you think
the status quo is acceptable? The status quo, would the status
quo be acceptable, in other words, no changes?
Mr. Parker. From an agricultural standpoint and a
federalism-state's rights standpoint, leave this up to the
states. The Forest Service and other land management agencies
need to allow the states to step out and do the jobs that they
have under the state regulations to manage these waters, to
protect the waters, to protect recharge zones.
The state already has that in place. The Federal Agencies
need to allow them to do that on the public lands.
Mrs. Napolitano. Anybody else?
Mr. Tyrrell. I believe that the status quo is not
acceptable in this case because I do think we need additional
clarity in things such as ``Waters of the U.S.,'' but I do not
think the instrument in front of us provides that clarity.
Mr. Lemley. Obviously I believe the status quo is not
adequate, and that headwaters, ephemeral streams and wetlands
require these additional protections by the EPA to make sure
that we all have clean water to do farming, to do ranching, and
to run our businesses.
Mr. Clark. And maybe last, it might be naive. I know for
where we are, through trial and error we work well with the
Corps. We work well with the other Agencies in applying the
Clean Water Act as it is today. I see that the existing is
sufficient.
Mr. Martin. It would be best if we could have a bright line
test that would provide clarity to everybody who is on the
ground. Unfortunately, I do not think this rule provides it.
Mrs. Napolitano. Well, I am hearing from most of you that
you need more clarity.
Are you participating? Are any of you participating in the
rulemaking process and will you be submitting the documents
recommending detailed improvements to the definition of
``Waters of the United States''?
Mr. Martin. Yes. Natural Water Resources Association will
be submitting comments.
Mr. Tyrrell. The State of Wyoming will comment.
Mr. Parker. The American Farm Bureau will be and has been.
Mr. Clark. Both individually and through our national
organization, yes, ma'am.
Mrs. Napolitano. Thank you, gentlemen.
Sir, Mr. Lemley?
Thank you very much.
My concern, and I do not have any farm community at all,
but I am very concerned about the contamination of water for
the drinking water for farm use, for industrial use, for all
the uses. So to me the clean waters needs to apply to
everybody, and being able to ensure that our general public,
the owners of the water which are the people of the United
States, not necessarily all the states but the people that
reside within those states, are affected by our non-activity or
by ignoring some of the contamination that has been polluting
some of our streams and waters.
And I look forward to working with you. Thank you very
much, Mr. Chair.
Mr. McClintock. Thank you.
I would like to thank 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. The hearing record will be open for 10 business days
to receive those responses.
And if there is no further business, without objection, the
subcommittee stands adjourned.
[Whereupon, at 12:01 p.m., the subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of U.S. Department of Agriculture
Chairman McClintock, Ranking Member Napolitano, and members of the
subcommittee, thank you for the opportunity to provide perspective on
the role of the U.S. Department of Agriculture (USDA) in the
stewardship of water resources on the National Forest System (NFS). The
Department recognizes the importance of water in the NFS for resource
stewardship, domestic use and public recreation.
All of the efforts of the USDA Forest Service (Forest Service)
regarding the management of water resources are conducted to ensure
that abundant clean water is available for the public's use and
enjoyment. Whether it is to create snow for downhill skiing, provide
for world class fishing experiences, sustain wildlife and domestic
animals, or to maintain community water supplies, everything is done
for the public's interest.
The Organic Administration Act (of June 4, 1897 as amended) and the
Multiple Use Sustained Yield Act, which designated and defined the
purposes of the National Forests recognize water as one of the primary
purposes for national forest designation. Today, water from national
forests contributes to the economic and ecological vitality of
communities across the Nation and plays a critical role in supplying
Americans with clean drinking water. National forests alone provide 18
percent of the Nation's water, and over half the water in the West.\1\
Several current initiatives highlight our role in protecting and
enhancing water resources on behalf of the public and communities we
serve, including the first national Watershed Condition Framework,
publishing a new National Land Management Planning Rule that emphasizes
water stewardship, implementing a National Climate Change Roadmap and
Scorecard and investing in national assessments like the Forests to
Faucets project.
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\1\ www.fs.fed.us/pnw/pubs/pnw_gtr812.pdf.
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The Forest Service recently published for public comment, a
proposed directive to ensure that the Forest Service's decisions and
activities undertaken within its existing authorities on NFS lands,
evaluate and address groundwater resources. Groundwater is considered
all water below the ground surface and is a key component of the
hydrologic cycle--the continuous movement of water on, above, and below
the surface of the Earth. Serving as a reservoir, groundwater supplies
cold, clean water to springs, streams, and wetlands, as well as water
for human uses. NFS lands provide sources of drinking water for people
in 42 states and the Commonwealth of Puerto Rico,\2\ there is a clear
need for the Forest Service--in cooperation with the states--to take an
active role in analyzing, evaluating, and monitoring groundwater
resources in the National Forest System.
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\2\ 79 Fed. Reg. 25815.
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The directive would set policy for Forest Service decisions and
activities that involve or potentially impact groundwater resources on
NFS lands, and would improve the Forest Service's ability to analyze
and monitor potential uses of NFS land that could affect groundwater
resources. The directive will also create a cohesive framework to
respond to groundwater development proposals, and will provide enhanced
certainty and predictability to our state partners and project
proponents.
By both executive action and legislation NFS lands were set aside
or acquired in part to protect and conserve water resources. The Forest
Service, along with most states, considers surface water and
groundwater to be connected and interdependent resources. The proposed
directive would establish policy for managing surface uses with the
understanding that surface water and groundwater are interconnected.
The Forest Service recognizes the states' roles in managing water
resources and administering water rights within their borders. Nothing
in the proposed directive would affect states' role in the management
of water rights.
The Forest Service is seeing increased interest and demands from
the public to address access to and protection of groundwater as part
of the decisions and activities the agency performs. This has been
particularly true with respect to oil and gas and minerals development.
Recent examples include lawsuits in the states of Idaho and Oregon
claiming that the Forest Service conducted inadequate analysis of the
potential impacts to groundwater from such activities.
Public demands with respect to groundwater show there is a clear
need to establish national policy to demonstrate to the public how the
Forest Service will address groundwater as part of its land management
duties, specifically that the Agency analyzes potential effects on
groundwater from proposed activities, and will institute protective
measures within the rights of a proponent. The Forest Service has an
obligation to analyze proposed development and protect resources,
including groundwater.
The proposed directive would establish goals and clarify
responsibilities for groundwater resource management at each level of
the Forest Service. It would also provide transparent and consistent
direction for evaluating proposed Forest Service activities and special
uses of groundwater resources on NFS lands and for measuring major
groundwater withdrawals.
The Forest Service expects that implementing the proposed directive
would raise the level of awareness of the importance of groundwater
resources for NFS lands. This would assist with the development of an
inventory of the groundwater-dependent ecosystems on NFS lands.
Through this proposed directive, the Forest Service could more
readily respond to changing conditions (such as drought, climate
change, land use changes, needs for additional water supplies) in an
informed manner, while sustaining the health and productivity of NFS
lands and meeting new demands in a responsible way. The proposed policy
was published in the Federal Register for public notice and comment on
May 6, 2014 with a 90-day public comment period and a 120-day tribal
consultation period.
Just this week, the Forest Service also published a proposal that
balances the interests of the public, the ski areas and our natural
resources by ensuring that the necessary water is provided for winter
recreation through our special-use permitting process. The Forest
Service's interest on behalf of the public is to protect the
availability of water dedicated to ski area operations on National
Forest System lands. Ski resorts build chair lifts and other related
facilities and modify the landscape to accommodate ski runs, and are
often located on lands managed by the agency. These capital
improvements are approved based on a determination that sufficient
water is available to operate them. Therefore, it is essential that
sufficient water remain committed to the activities authorized under a
ski area permit.
Ski areas, which cover approximately 180,000 acres of national
forest system lands, average 23 million visits annually. Those visits
contribute $3 billion every winter in direct spending to local
economies and create approximately 80,000 full, part-time and seasonal
jobs in rural communities.
The draft proposal addresses water provided for ski areas on NFS
lands through the permitting process. The proposal will help ensure
public winter recreation opportunities remain available in the long
term on Federal lands.
The Forest Service values the input of states, tribes and all
stakeholders and looks forward to receiving input on both of these
important proposals that are currently out for public comment. This
concludes our statement for the record.
______
Prepared Statement of Bureau of Reclamation, U.S. Department of the
Interior
The Bureau of Reclamation (Reclamation) submits the following
statement in response to the subcommittee's hearing titled ``New
Federal Schemes to Soak Up Water Authority: Impacts on States, Water
Users, Recreation, and Jobs.'' We recognize the subcommittee's interest
in assuring that Federal regulations do not adversely impact our
environment and economy, and we welcome the opportunity to help foster
a clear understanding of the recently proposed rule under the Clean
Water Act (Act) and its potential impacts on Bureau of Reclamation
activities.
On April 21, 2014, the Federal Register published the proposed rule
from the Environmental Protection Agency (EPA) and Army Corps of
Engineers (Corps) \1\ that is the subject of today's hearing. Titled
the ``Definition of `Waters of the United States' Under the Clean Water
Act,'' the proposed rule responds to widespread and longstanding
uncertainty about the scope of waters regulated under the Act. As
stated in the materials accompanying the proposed rule's release,
Members of Congress, state and local officials, industry, agriculture,
environmental groups, and the public have asked for nearly a decade
that a rulemaking occur to provide clarity on the scope of Federal
jurisdiction under the Act.
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\1\ http://www2.epa.gov/sites/production/files/2014-04/documents/
fr-2014-07142.pdf.
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While we will leave it to EPA and the Corps to discuss the details
of the proposed rule, it is our understanding that the proposed rule is
not designed to expand the Act's applicability beyond existing
regulation; that it is not designed to cover groundwater; and that the
rule does not expand the Act's reach to cover additional irrigation
ditches or alter the existing water transfers exclusion, which are
obviously of special relevance for Reclamation. For the purposes of
Reclamation's water and power mission areas that are of interest to
this subcommittee, Reclamation shares the interest of our stakeholders
in preserving our shared ability to operate and maintain facilities and
deliver water and power. To that end, we are pleased that EPA and the
Corps, for the first time, have included a proposed exclusion in the
rule for ditches excavated wholly in uplands and draining only uplands,
with less than perennial flow, including those that may carry
groundwater. The significance of this detail is that ditches excavated
for drainage purposes in uplands on agricultural lands are unlikely to
serve their intended function unless they carry flow at least
intermittently, so it is important that ditches with intermittent flow
be eligible for the proposed exemption.
We are encouraged that the EPA and Corps are working with state and
tribal partners to assure these voices are effectively represented
during this rulemaking process. We appreciate EPA and the Corps'
efforts to improve clarity and preserve existing Clean Water Act
exemptions and exclusions for agriculture. We also appreciate that the
rule does not change, in any way, existing Clean Water Act exemptions
from permitting for discharges of dredged and/or fill material in
waters of the United States associated with agriculture, ranching and
forestry activities, including exemptions for normal farming,
silviculture, and ranching practices; upland soil and water
conservation practices; agricultural stormwater discharges; return
flows from irrigated agriculture; construction and maintenance of farm
or stock ponds or irrigation ditches; maintenance of drainage ditches;
and construction or maintenance of farm, forest, and temporary mining
roads, where constructed and maintained in accordance with best
management practices.
As the members of this subcommittee know, EPA and the Corps have
announced plans to accept public comment on the proposed rule through
October 20 of this year. The Clean Water Act is over four decades old,
with several instances of litigation over Congress's true intentions in
passing the law, and we recognize the value in updated regulations to
guide its implementation. Reclamation shares the interest of our
stakeholders in preserving our shared ability to operate and maintain
facilities and deliver water and power. As with the proposed rule,
Reclamation will continue to participate in the interagency process in
support of our collective interests, as the services work to finalize
the rule.
Thank you for the opportunity to participate in today's hearing.
Prepared Statement of Dan Keppen, Executive Director, Family Farm
Alliance, Klamath Falls, Oregon
Thank you for this opportunity for the Family Farm Alliance
(Alliance) to submit comments to your subcommittee on this important
matter. 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. The Alliance has long advocated that
solutions to conflicts over the allocation and use of water resources
must begin with recognition of the traditional deference to state water
allocation systems. Federal agencies must recognize and respect state-
based water rights and develop their management decisions according to
state law and abide by state decrees defining both Federal and non-
Federal rights. Federal agencies need to work within the framework of
existing prior appropriation systems instead of attempting to fashion
solutions which circumvent current water rights allocation and
administration schemes.
Our comments summarize concerns the Alliance has with proposals put
forward by the U.S. Environmental Protection Agency and the U.S. Army
Corps of Engineers (``Waters of the U.S.'' rule) and the U.S. Forest
Service (groundwater management directive). Each of these issues is
dealt with at length, below.
``waters of the u.s.'' rule
The Alliance membership includes many irrigation districts, water
companies, and farmers and ranchers in 16 western states, with many
served by Bureau of Reclamation (Reclamation) owned facilities. The
Alliance in 2013 commissioned a study of the economic benefits to the
Nation from western irrigated agriculture, calculating that the total
direct and indirect production value for the 17 states comprising the
western U.S. region was around $156 billion annually, of which $117
billion was tied to crops produced on about 42 million irrigated acres
in the western United States.\1\ Without irrigation, these lands would
not yield the billions of dollars in economic benefits for the region
and the Nation, let alone the vast amounts of quality food and fiber
enjoyed every single day by the American public. And, since World War
II, the percentage contribution of (disposable) household income to
food costs has dropped from 25 percent to around 7 percent, allowing
for the continued growth of our consumer spending economy.\2\ Thus, the
importance of western irrigated agriculture to the Nation is well
documented.
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\1\ ``The Economic Importance of Western Irrigated Agriculture''
Water Resources--White Paper, prepared by Pacific Northwest Project for
the Family Farm Alliance and the Irrigation Association, August 2013.
\2\ Id.
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On April 21, 2014 the Environmental Protection Agency (EPA) and the
U.S. Army Corps of Engineers (Corps) announced a proposed rulemaking
under the Federal Clean Water Act (CWA) redefining the agencies'
jurisdiction over water bodies. The proposed rule is a complicated set
of regulatory definitions, including new ambiguously defined terms,
that seeks to ``clarify'' the authority of these two agencies to
regulate ``navigable waters'' which are defined in the CWA as the
``Waters of the U.S.'' (WOTUS).
In the Alliance' view, the proposal, if adopted, would not clarify
the agencies' jurisdictional determinations over WOTUS. In fact, it
would significantly expand the scope of waters protected under the
Federal CWA beyond those waters currently regulated by asserting
jurisdiction over waters, including many ditches, conveyances, isolated
waters and other waters, resulting in many negative economic and
societal impacts to irrigated agriculture in the West.
The proposed rule asserts that most waters categorically have a
``significant nexus'' to traditional navigable waters currently
regulated under the CWA, and yet allows the EPA or the Corps to
establish a ``significant nexus'' on a case-by-case basis over other
waters. The criteria for establishing a significant nexus is ambiguous
and could be easily applied to most waters (i.e. ``more than
speculative or insubstantial effect . . .''), and would increase
Federal control over most waters and any land activities that might
impact these waters, subjecting these lands and waters to more
complicated and layered reviews and potential third party citizen
lawsuits.
The proposed rule would change all sections of the CWA: Sections
303, 304, 305 (state Water Quality standards), 311 (oil spill
prevention), 401 (state Water Quality certification) 402 (effluent/
stormwater discharge permits) and 404 (dredge and fill permits). At a
minimum, the proposed rule will require substantial state resources to
administer, including issuance of all the additional permits, newly
developed/revised water quality standards, and total maximum daily
loads (TMDLs) required by the expanded jurisdiction. Third party
(citizen) actions will also almost certainly precipitate litigation,
leading to these required Federal and state administrative actions and
further delays in project implementation.
Under the proposal, all tributaries, newly defined as including a
bed, banks and an ordinary high water mark, and including any waters
such as wetlands, lakes, and ponds that contribute flow, either
directly or indirectly through another water body, to downstream
traditional navigable waters or interstate waters would be
jurisdictional. All waters adjacent to such tributaries would now be
jurisdictional, broadly defined as waters within floodplains and
riparian areas of otherwise jurisdictional waters, and including
subsurface hydrologic connection or confined surface hydrologic
connection to a jurisdictional water. And all man-made conveyances,
including ditches, would be considered jurisdictional tributaries if
they meet the new definition, regardless of perennial, intermittent, or
ephemeral flow.
Under the proposed rule, many private land and water conservation
projects designed to benefit watersheds, waterfowl and riparian
habitats may be subject to CWA permitting, acting as a disincentive to
such important projects. While the EPA and the Corps emphatically deny
projects like erosion control or soil stabilization work are exempt
from permitting under the proposed rule, this would not stop third
parties from raising the jurisdictional question in litigation,
creating the uncertainty and instability resource users fear the most.
There is nothing ``clear'' about this rule proposed to ``clarify'' CWA
jurisdiction over ``Waters of the U.S.'', only the uncertainty created
by using ambiguous definitions and convoluted analyses to define what
is jurisdiction and what is not. In its haste to get the proposed rule
out for comment, the EPA has out run the analysis of its own underlying
scientific documentation, the draft EPA Connectivity of Streams and
Wetlands to Downstream Waters: A Review and Synthesis of the Scientific
Evidence, which is still under agency and Science Advisory Board (SAB)
review.
The proposed rule has huge implications for irrigated agriculture
in the West. Under the proposal, third parties could assert that
features such as irrigation and drainage ditches, stormwater ditches,
and water storage or treatment ponds and reservoirs would now become
jurisdictional waters, and place the burden of proof on irrigation
water purveyors, farmers and ranchers to prove they are exempt from CWA
jurisdiction. Irrigation water suppliers and private and public
landowners will experience increased costs and delays associated with
the additional permitting requirements, restrictions on land use
options, and the continued uncertainty on the scope of CWA jurisdiction
under the proposal.
The costs associated with permitting under the CWA are astronomical
and time consuming, with permitting taking hundreds of days to complete
(on average) and with permitting costs ranging from the tens of
thousands to the hundreds of thousands of dollars. These costs cannot
be avoided, because the Clean Water Act imposes criminal liability, as
well as escalating civil fines, on a broad range of everyday
activities. Expanding the scope of the CWA to additional and uncertain
jurisdictional water bodies will only increase those costs and delays
as state and Federal regulators will simply not have the resources to
keep up with these expanded permit requirements.
The categorical exemptions from jurisdiction under the CWA provided
in the proposed rule, while laudable, lack the clarity and specificity
needed to provide the certainty irrigated agriculture needs to operate
on a daily basis. The Alliance believes the rule needs to provide such
clarity that the current exemptions for irrigation ditches, drains and
associated facilities will continue to be retained. This important
infrastructure is the lifeblood of irrigated agriculture in the West,
and the existing distribution system of ditches, canals, drains and
diversions work to provide water to thirsty farms and ranches in the
most efficient manner possible. If these facilities are not operated
and maintained in an efficient and timely manner during critically dry
periods during the growing season, the economic and societal result
will be devastating to farmers, rural communities and, ultimately, the
Nation.
Irrigation ditches are constructed conveyances regularly maintained
for the purpose of delivering irrigation water or draining agricultural
lands and are distinct from natural waters. These are artificial
facilities created for the purpose of irrigation and drainage of
irrigated lands from the application of water in the irrigation
process. The irrigation ditches and drains carry flows as needed to
deliver irrigation water or to drain the agricultural waters from
irrigated lands. These man-made canals and ditches would otherwise be
dry land, except for the application of irrigation water to produce
crops. Where irrigation drains have a more permanent flow, that flow is
due to the timing of irrigation water applied to crops and seeping down
through the soil until it reaches subsurface perched groundwater or a
non-permeable barrier in the soil profile, where these drains can
intercept this irrigation return flow to carry it away and prevent
water buildup in the plant root zone in the field. Permanent flows in
drains also can result from these irrigation drains actually picking up
flowing groundwater during certain periods of the year, which is exempt
from CWA jurisdiction.
Return flows from agriculture are specifically excluded from CWA
regulation in the Act, and permits are not required for constructing
and maintaining irrigation ditches excavated in dry land and the
maintenance of irrigation drains draining those irrigated lands. The
Alliance believes that the agencies should make clear in their proposed
rulemaking that irrigation canals, ditches and drains are not navigable
waters, are not ``Waters of the U.S.,'' and are not ``tributary'' to
WOTUS, and thus are not jurisdictional under the CWA. This was
Congress' intent when it passed the CWA, and requires that the proposed
rule should include an express exemption for irrigation canals, ditches
and drains, from the definition of navigable waters, waters of the
United States, and tributary waters.
Irrigation districts, canal companies and other water providers do
routine maintenance work in their conveyance facilities every year. In
addition, they are required to make more extensive improvements in the
form of rehabilitation or replacement of some of the works from time to
time. Water conservation activities such as lining or piping canals and
drains are also commonplace activities, along with relocating portions
of these water conveyance facilities for improved efficiencies. Without
the ability to conduct these necessary activities, agricultural water
delivery would come to a screeching halt.
The Corps of Engineers has, in certain cases in the past, asserted
that these activities are being conducted in ``Waters of the United
States'' and therefore require a Sec. 404 permit or reliance on one of
these existing exemptions contained in the Act. As a result, we worked
with the Corps, EPA and the Bureau of Reclamation to obtain a
Regulatory Guidance Letter (RGL) helping to clarify the scope and
breadth of the exemptions contained in the Act as they apply to these
activities. We are certainly appreciative of these efforts by the
Federal agencies, which culminated with the release of the RGL in 2007.
However, the new WOTUS proposal does not clarify whether these canals,
ditches and drains are jurisdictional under the CWA as WOTUS, nor is it
clear if the proposal provides the same application of the exemptions
proffered by the RGL.
Our member districts and water purveyors operate and maintain
literally thousands of miles of canals, ditches and drains serving
millions of acres of irrigated crop lands. These entities perform
routine maintenance work on these conveyance facilities constantly, and
at times may improve their facilities by piping or lining ditches and
canals to conserve water in the delivery process. If these water
providers are required to obtain a CWA permit for each of these routine
activities, delivering irrigation water to western farms and ranches
would become much more expensive and time consuming, and could make it
almost impossible to deliver water in time to irrigate crops.
The Bureau of Reclamation has a vested interest in ensuring that
water is delivered efficiently and on a timely basis, as these farms
and ranches are tasked with repaying the Federal construction debt on
these Federal projects. Water conservation and management improvements
have become an important part of the western irrigation landscape today
due to the challenges of drought, increased demand, and environmental
requirements. Making irrigation ditches and drains jurisdictional under
the CWA would hamstring the agency from accomplishing its mission of
managing, developing and protecting western water resources in the
delivery of water to water contractors.
Finally, the Alliance believes that the proposed rule is
inconsistent with congressional intent, the language of the CWA and
Supreme Court decisions. The Supreme Court has twice affirmed that
Federal jurisdiction under the CWA is limited, rejecting, first, the
agencies' broad assertion of CWA jurisdiction based on the use of
isolated waters by migratory birds and, second, the agencies' assertion
of jurisdiction based on ``any hydrological connection''. Yet the
proposed rule would continue to define CWA jurisdiction as broadly as
these previous theories rejected by the Supreme Court.
The administration and Congress have a unique opportunity to
instill a common-sense approach to protecting our water quality and
related resources; one that steers clear of creating certain havoc in
surface water operations throughout the country by clarifying that man-
made ditches are not jurisdictional. Unfortunately, the proposed WOTUS
rule is ambiguous and will lead to uncertainty and litigation. We urge
you to consider the appropriate protections already afforded U.S.
waters under the CWA, particularly via existing state programs. Please
reject the unprecedented Federal expansion proposed in this rule, and
instead find ways to streamline current CWA administration.
Western family farmers and ranchers urge clarity, not ambiguity and
expansion of the Clean Water Act.
u.s. forest service directive on groundwater management
On May 6, the U.S. Forest Service (USFS) released two separate
notices and distinct sets of directives dealing with water resources.
The directives, based on provisions found in the 2012 Forest Planning
Rule would open the door to even more regulation of national forests in
the name of ``water quality protection.'' Our comments will focus on
the draft directive where USFS proposes to assert authority over
groundwater--Chapter 2560 (``Groundwater Resource Management'') of
Forest Service Manual 2500. However, we would also alert the
subcommittee of the second USFS directive, which would put in place a
set of national Best Management Practices (BMPs) for water quality
management from non-point sources. The BMPs proposed by the USFS are
vaguely written, giving individual forests virtually free rein to
create their own BMPs in as strict or lax a manner as they choose. For
example, those guidelines call for ``special consideration'' of areas
within 150 feet of a stream--leaving the interpretation of ``special
consideration'' wide open for litigation. Based on the experience of
many Alliance members, we can expect certain conservation groups to
conclude that a forest's BMPs are too lax and sue based on their own
interpretation of the national BMP guidelines.
The USFS has proposed a new chapter for its Forest Service Manual
on managing groundwater resources. As discussed above, many Alliance
members have focused attention in recent months on the EPA/Corps
rulemaking effort intended to clarify which ``Waters of the U.S.''
would come under jurisdiction of the CWA. Meanwhile, directives that
are perhaps even more draconian than what EPA is contemplating are
already being forwarded by USFS through the public review process. The
new groundwater management and water quality BMP directives USFS has
proposed are alarming, and would open up the door to a jurisdictional
expansion that would most likely conflict with the laws of western
states. Notably, the Groundwater Directive automatically assumes that
groundwater and surface water are hydraulically connected, unless
demonstrated otherwise using site-specific information.
We believe the USFS cannot assume to hold the reserved water rights
to all waters--both surface and groundwater--in a National Forest, and
as such, does not have the authority to control or regulate those
waters, as proposed in the directives. Where such reserved rights are
actually held by the USFS (obtained through a McCarran Act state
adjudication of such rights), then the proper authority to control or
regulate those rights would be through existing state water right
administration processes, not through the policy directives of the
USFS.
The USFS is becoming more and more aggressive in the world of
western water resource management. In recent years, the agency has
attempted to require the transfer of privately held water rights to the
Federal Government as a permit condition on USFS lands. Additionally,
USFS has leveraged western water users in an effort to acquire
additional water supplies for the government by requiring water users
to apply for their rights under state law in the name of the United
States, rather than in the name of the beneficial user of those rights,
despite objections from elected officials, business owners, private
property advocates and a U.S. District Court ruling. Finally, our
members in Colorado are still battling with the USFS and the U.S.
Bureau of Land Management on the agencies' Joint Land Management Plan,
which includes more restrictive ``standards'' to assess stream
conditions in a permitting process that will likely lead to by-pass
flows. Any by-pass flows that could be imposed in a special use permit
process should be considered a ``takings'' and could have major impacts
on existing and future water rights. Colorado water districts, the
Colorado Department of Natural Resources, and the Colorado Water
Congress appealed the Record of Decision on the Forest Plan, but
recently found out the appeal had been denied by the USFS. All of these
entities have requested a discretionary review of these matters. If the
review is not successful, litigation is a possibility on the by-pass
issue.
Thankfully, with the leadership from your subcommittee, the House
has passed the ``Water Rights Protection Act'', which would put a halt
to the conditioning of permits and leases on the transfer,
relinquishment, or other impairment of any water right to the United
States by the Secretaries of the Interior and Agriculture. The latest
release of the new USFS directive, however, is seen by some as a way
skirting the District Court decision that prevents USFS from forcing
water-rights holders to hand over part of their water rights in
exchange special use permits. Why is the Groundwater Directive
troubling to western water users? We have worked with our membership
and have identified the following concerns.
The proposed directive goes beyond the authority of USFS and could
encroach into states' rights to manage groundwater. A significant
portion of the USFS directive is dedicated to listing numerous Federal
statutes that direct or authorize water or watershed management on NFS
lands. The directive states that ``several of these statutes'' grant
authority or provide direction to the Forest Service for the management
of groundwater resources. Actually, very few of them specifically grant
USFS groundwater management authority, and those that do are passive in
nature. Forest Service Directive FSM 2880 provides direction on
inventorying and monitoring groundwater resources. USDA Departmental
Regulation 9500-8 (DR 9500-8) provides for protection of water users
and the natural environment from exposure to harmful substances in
groundwater and enhancement of groundwater quality where appropriate
through prudent use and careful management of potential contaminants
and promotion of programs and practices that prevent contamination. In
fact, DR 9500-8 specifically notes that USDA will ``advocate and foster
programs, activities and practices that can prevent the harmful
contamination of ground water from agricultural, silvicultural, and
other rural sources to minimize, or make unnecessary, regulatory
restrictions on the use of chemicals essential to agricultural
production'' (emphasis added).
The new directive is much more aggressive in its management
approach, and opens the potential for conflict with state and local
groundwater management efforts. Our experience shows that the best
decisions on water issues are made at the local level. The Federal
Government has repeatedly recognized this fact. In 1952, Congress
passed the McCarran Amendment. This law specifically waives the
sovereign immunity of the United States in matters that pertain to
state water right adjudications.
One of our primary concerns about the USFS Groundwater Directive is
how this new directive may affect claims for reserved water rights by
the USFS. For example, there are a number of cases that were filed in
the mid-1970s for reserved water rights in Water Division 7 (which is
basically all of southwest Colorado). These cases have never been
resolved, and are still pending in water court. Our members in Colorado
have concerns that the USFS could try to amend these pending
applications to include references to groundwater, based on the new
directive. We hope the subcommittee can assist with having USFS explain
what the impact, if any, the proposed directive on groundwater will
have on pending reserved water rights claims in Colorado and elsewhere
in the West, where reserved water rights claims by the USFS have not
been resolved.
One of the objectives of the new directive is to ``manage
groundwater underlying NFS lands cooperatively with States''. The
proposed policy directs USFS to manage groundwater quantity and quality
on NFS lands ``in cooperation'' with appropriate state agencies and, if
appropriate, EPA. Cooperation is certainly a key component to
groundwater management, but USFS needs to demonstrate a stronger
commitment to work within the framework of existing state water rights
systems and defer to the states in these matters. Such a commitment
would encourage states and water right holders to proactively address
water allocation issues by eliminating the now omnipresent fear that a
subsequent Federal mandate will either undermine local efforts to
address an allocation issue or suddenly require unexpected additional
reallocations of water which render local cooperation impossible.
The directive expands USFS jurisdiction beyond National Forest
Service lands. One of the policies of the USFS directive is to manage
surface water and groundwater resources as hydraulically
interconnected, and consider them interconnected in all planning and
evaluation activities, unless it can be demonstrated otherwise using
site-specific information. Another policy would focus groundwater
resource management on those portions of the groundwater system that if
depleted or contaminated, would have an adverse effect on surface
resources or present or future uses of groundwater. Since surface water
and groundwater are already assumed to be hydraulically connected in
this directive, this essentially expands USFS jurisdiction to some
uncertain range downstream along runoff channels and streams
originating or flowing through NFS lands. Not only is the breadth of
the jurisdictional expansion uncertain, the manner in which groundwater
will be ``managed'' is also unclear. Groundwater management can consist
of passive activities, such as data collection and well monitoring. It
can also consist of more aggressive actions, including regulation or
curtailment of pumping. The directive fails to adequately describe the
level of groundwater management that is proposed, instead noting that
management will occur ``on an appropriate spatial scale''. The policy
directs the USFS to ``prevent, minimize, or mitigate, to the extent
practical, adverse impacts from Forest Service actions on groundwater
resources and groundwater-dependent ecosystems located on NFS lands.''
This too, is vague, as are other provisions in the directive, and
potentially could usurp the authority of the state in managing and
regulating its surface and groundwater resources.
The directive includes vague and uncertain terminology and
provisions. The new policy requires implementation of water
conservation strategies in Forest Service administrative and
recreational uses and cites FSM 7420. This latter document relates to
drinking water projects and it is unclear how it would apply to
ensuring incorporation of ``water conservation strategies'' for
administrative and recreational uses. The term ``water conservation
strategies'' needs to be defined.
The directive calls for USFS to follow applicable state and EPA
SDWA regulations for evaluating whether a groundwater source of
drinking water is under the direct influence of surface water. This
would appear to conflict with the USFS policy in the directive that
automatically considers groundwater and surface water to be
hydraulically interconnected in all planning and evaluation activities,
unless it can be demonstrated otherwise using site-specific
information.
The directive states that effects of proposals on groundwater
resources will need to be considered and addressed when revising or
amending applicable land management plans and evaluating project
alternatives. The directive is not clear as to whether these actions
apply only to proposed USFS activities or to proposed uses involving
surface water or groundwater outside of USFS lands that could
theoretically be viewed as ``connected'' using the new USFS policy.
The directive is biased against human activities and discourages a
flexible approach to water management contains a strong bias toward the
environment and water demand management. The Forest Service directive
proposes to address in planning documents the long-term protection and
sustainable use of groundwater and groundwater-dependent resources on
USFS lands. The policy directs USFS to appropriately protect
groundwater resources on USFS lands that are critically important to
surface water resources or to natural features, ecosystems, or
organisms. No mention is made of the need to provide water for grazing,
recreation, or other human activities on USFS lands.
Several parts of the proposed directive demonstrate a bias against
human activities and water infrastructure projects on USFS lands:
The proposed policy directs USFS to deny proposals to
construct wells on or pipelines across USFS lands which can
reasonably be accommodated on non-USFS lands and which the
proponent is proposing to construct on USFS lands because
they afford a lower cost and less restrictive location than
non-USFS lands.
In lieu of accessing water from USFS lands, the directive
encourages public water suppliers and other water users to
employ new treatment technology to meet water supply needs
when water quality in an existing water source has degraded
or become polluted.
When issuing or reissuing an authorization or approving
modification of an authorized use, the directive requires
implementation of water conservation strategies to limit
total water withdrawals from USFS lands ``deemed
appropriate by the authorized officer''.
The directive requires that public water suppliers and
other proponents and applicants for authorizations
involving water supply facilities on USFS lands provide an
evaluation of all other reasonable alternatives to the USFS
before authorizing access to new water sources or increased
capacity at existing water sources on USFS lands, unless
the proposed use is entirely on USFS lands or the proponent
or applicant is a public water supplier and the proposed
water source is located in a designated municipal
watershed.
The USFS directive suggests to us that some within the agency
clearly have anti-infrastructure biases and are inserting those biases
into critical Federal decisionmaking processes. The Alliance has been
very supportive of increased water use and management efficiencies,
including the many voluntary water conservation projects currently
implemented across the West. We also believe that to effectively meet
future demands for water for people and the environment in the West,
water conservation efforts alone will not suffice, and that water
infrastructure, including new water storage projects, must be built in
the future.
The directive demonstrates a bias against water storage projects
that could hamper future ability to address drought and climate change
challenges in the West. Western snow-fed, irrigated agriculture will
take on more importance to the Nation as climate change sparks more
extremes in both flooding and droughts. In the West, we have high
elevation moisture, and sophisticated storage and conveyance
infrastructure, which make us more flexible and adaptive in our water
management efforts. Western agricultural water users and the
infrastructure that was originally constructed to support our
communities will become even more important as climate changes occur.
An essential part of water management in the West lies in the past:
visionary development of storage and irrigation under the auspices of
the Bureau of Reclamation. This has allowed the bountiful production of
food and fiber which are crucial to our national food supply. The
importance of dams and water delivery infrastructure to western water
supply certainty appears to have been forgotten as USFS prepared this
directive.
Interestingly--and what is surprising, coming from an agency like
USFS--the directive proposes to protect local groundwater resources by
encouraging the use of sources of water other than local groundwater,
or ``import surface or groundwater from outside the basin where laws,
water quality and hydrological conditions in both the source and
receiving areas allow''. Is USFS actually advocating for expanded
trans-basin diversions to avoid using local groundwater?
The USFS directive would place unqualified personnel in positions
where critical groundwater management decisions will be made. The
directive defines ``qualified groundwater personnel'' as USFS staff or
contractors with ``appropriate education, training, and experience in
groundwater science to satisfy project needs and, if applicable,
licensed or registered to practice geology, hydrology, soil science, or
engineering, as appropriate.'' However, other provisions of the
directive provide aquatic biologists, or ``similarly trained
professionals'' with the authority to analyze whether groundwater
withdrawals or injections would impact surface or groundwater quality
and quantity. These professionals would also be authorized to develop
analyses used to change or limit authorized activities and modify
operations for those cases where monitoring shows potential impacts.
These are very complicated, sophisticated duties that are likely beyond
the training and experience obtained by aquatic biologists. Qualified
groundwater personnel should oversee these activities, and those
personnel should be state-licensed professional civil engineers or
geologists.
The Alliance has many concerns with the USFS groundwater management
directive, but our biggest worry with this most recent move by the USFS
to assert control over groundwater is that it unquestionably exceeds
the agency's statutory authority. Unfortunately, in recent years,
similar actions by the USFS suggest a move toward Federal overreach,
ignoring state water laws and processes, and violating private property
rights. The USFS proposed directives on groundwater management and
water quality Best Management Practices both need to be withdrawn, and
USFS should go back to the drawing board and work toward developing a
policy that falls within the limits of agency authority, pays deference
to states water authorities and emphasizes a collaborative approach to
water management that benefits human uses and the environment.
conclusion
One not familiar with this Nation's regime for regulation of the
environment would understandably conclude that there is some giant gap
in the regulatory scheme that is allowing unchecked pollution and waste
of water that are not currently within the jurisdiction of the CWA or
the purview of the USFS. However, this is simply not the case. Even
though groundwater, smaller intrastate waters and wetlands areas may
not be within the jurisdiction of the Federal Government, they are
within the jurisdiction of state and local governments. The implication
derived by the perceived need by the Federal Government to further
regulate all waters is that these state and local governments are
incapable of, or somehow ignoring the need to effectively protect their
water resources. Such arrogance by the Federal agencies is appalling
and flies in the face of federalism in promoting state governance of
these important resources. In addition, it is important to keep in mind
that the Federal Government does have jurisdiction over discharges of
solid wastes, hazardous wastes, and hazardous substances to non-
jurisdictional waters through the Resource Conservation and Recovery
Act and the Comprehensive Environmental Response, Compensation, and
Liability Act.
It is also worth noting that the CWA is widely recognized as an
extremely successful statutory regime. All of this progress has been
achieved under the current version of the CWA. And more than a decade's
worth of this progress has been achieved since the Supreme Court's
SWANCC decision in 2001, which some proponents of the proposed
rulemaking allege was the beginning of the Court's attempts to limit
Federal jurisdiction. Simply put, the agencies crafting both of these
rules have only spoken of the need for an expansion of Federal water
resource management jurisdiction in the broadest, most vague terms
possible, without establishing any real need.
The results of this jurisdictional expansion will put actions and
products used by American farmers and ranchers that are critical inputs
necessary in the production of food and fiber foremost in the sights of
Federal regulators. American family farmers and ranchers for
generations have grown food and fiber for the world, and we will have
to muster even more innovation to meet this critical challenge, which
grows every day. That innovation must be encouraged rather than stifled
with new regulations and uncertainty. Unfortunately, many existing and
proposed Federal policies on water issues,--including proposed rules
discussed in this letter--make it more difficult for farmers to produce
food and fiber in an arena where agricultural values are perceived as
secondary to ecological and environmental priorities. Right now, it
seems that water policies being developed at EPA, the Corps and the
USFS are being considered separately from foreign and domestic
agricultural goals.
Thank you for this opportunity to provide comments for this
important oversight hearing.
______
Prepared Statement of National Stone, Sand and Gravel Association
(NSSGA)
On behalf of the National Stone, Sand and Gravel Association, we
appreciate the opportunity to submit testimony to the Natural Resources
Subcommittee hearing on ``New Federal Schemes to Soak Up Water
Authority: Impacts on States, Water Users, Recreation, and Jobs'' on
the Environmental Protection Agency (EPA) and the U.S. Army Corps of
Engineers (Corps) proposed rule defining the scope of waters protected
under the Clean Water Act (CWA) (Docket ID No. EPA-HQ-OW-2011-0880).
NSSGA is the world's largest mining association by product volume.
NSSGA member companies represent more than 90 percent of the crushed
stone and 70 percent of the sand and gravel consumed annually in the
United States, and there are more than 10,000 aggregates operations
across the United States.
Through its economic, social and environmental contributions,
aggregates production helps to create sustainable communities and is
essential to the quality of life Americans enjoy. Aggregates are a
high-volume, low-cost product. Due to high product transportation
costs, proximity to market is critical; unlike many other businesses,
we cannot simply choose where we operate. We are limited to where
natural forces have deposited the materials we mine. There are also
competing land uses that can affect the feasibility of any project.
Generally, once aggregates are transported outside a 25-mile limit, the
cost of the material can increase 30 percent to 100 percent, in
addition to creating environmental and transportation concerns. Because
so much of our material is used in public projects, any cost increases
are ultimately borne by the taxpayer.
Aggregates are the chief ingredient in asphalt pavement and
concrete, and are used in nearly all residential, commercial, and
industrial building construction and in most public works projects,
including roads, highways, bridges, dams, and airports. Aggregates are
used for many environmental purposes, including pervious pavements and
other LEED building practices, the treatment of drinking water and
sewage, erosion control on construction sites, and the treatment of air
emissions from power plants. Aggregates operations are returned to the
community as a variety of positive land uses from wetlands to lakes,
wildlife habitats, recreational centers and even amusement parks and
golf courses. While Americans take for granted this essential natural
material, they are imperative for construction of our infrastructure,
homes, and for positive growth in our communities.
As the industry that provides the basic material for everything
from the roads on which we drive to purifying the water we drink, NSSGA
members are deeply concerned that the EPA's proposed rule will stifle
our industry at a time when we are just now recovering from the
economic downturn. The aggregates industry removes materials from the
ground, then crushes and processes them. Hazardous chemicals are not
used or discharged during removal or processing of aggregates. When
aggregates producers are finished using the stone, sand or gravel in an
area, they pay to return the land to other productive uses, such as
residential and business communities, farm land, parks, or nature
preserves.
Over the past 8 years, the aggregates industry has experienced the
most severe recession in its history. This expansion of jurisdiction
will have a severe impact on industry by increasing the costs and
delays of the regulatory process, causing further harm to an industry
that has seen production drop by 39 percent since 2006. While stone,
sand and gravel resources may seem to be ubiquitous, construction
materials must meet strict technical guidelines to make durable roads
and other public works projects. Because many aggregate deposits were
created by water, they are often located near water. The availability
of future sources of high quality aggregates is a significant problem
in many areas of the country and permitting issues has made the problem
worse.
The aggregates industry requires large land areas to process and
remove the extensive quantities of material needed for public works
projects. This proposed rule could effectively place many areas ``off
limits'' due to cost of new permits and/or the mitigation required to
off-set losses to now regulated streams. Having a clear jurisdictional
determination for each site is critical to the aggregates industry.
These decisions impact the planning, financing, constructing and
operating aggregates facilities. Because the Clean Water Act 404
``dredge and fill'' permitting process and the corresponding states'
401 Certification process is so long and costly that many companies
attempt to avoid jurisdictional areas.
Under the proposed revisions, many previously non-jurisdictional
areas like floodplains, wet weather conveyances, upland headwaters,
ephemeral streams or any riparian area could be considered
jurisdictional. It will make nearly any area our members try to access
regulated and in need of additional permits.
Even obtaining a jurisdictional determination can be a significant
undertaking. While jurisdictional determinations are good for 5 years,
as an industry we make business decisions to buy or lease properties to
extract aggregates for very long terms, 15 to 30 years is not uncommon.
The companies in our industry are very concerned that past
understandings of what would be jurisdictional will now be subject to
review. A change in what is considered jurisdictional can have
significant impacts on our material reserves, which will affect the
life of our facilities and delay the startup of new sites. Ultimately
this change will disrupt the supply of aggregates to our biggest
customers, government agencies; thus affecting highway programs,
airports, and municipal projects.
EPA claims this rule change is needed because so many waters are
unprotected, but that is not true: states and local governments have
rules that effectively manage these resources. For example, states and
many municipalities regulate any potential negative impacts to storm
water runoff and require detailed storm water pollution prevention
plans. These plans are required for every project; both during
construction and continuously after operations begin. States and local
governments are best-suited to make land use decisions and balance
economic and environmental benefits, which is what Congress intended.
There is much inefficiency in the current regulatory system;
however, adding vague terms and undefined concepts to an already
complicated program is not the way to fix the problem. In some cases
this rule could have a negative effect on the environment and safety.
Ditches without maintenance can degrade and lead to increased erosion
and sediment problems. EPA claims this rule is based on sound science,
but the Science Advisory Board, the group of independent scientists
reviewing it, are still not near completion; in fact they have raised
serious questions EPA has not answered.
EPA's economic analysis of this rule does not accurately show what
businesses will end up paying if this rule is finalized. It is not even
close. One NSSGA member calculated that to do the additional mitigation
of a stream required under this rule would be more than $100,000; this
is just for one site in our industry. This is more than EPA has
estimated the stream mitigation costs are for entire states in its
economic analysis. For our industry, time is money. Any new
requirements lead to a long learning curve for both the regulators and
the regulated. Simply receiving a jurisdictional determination can take
months--permits can take years; how much longer will it take to break
ground with so many vague and undefined terms in this rule? The
proposed rule has no clear line on what is ``in'' and what is ``out,''
making it very difficult for our industry and other businesses to plan
new projects and make hiring decisions.
If it is determined development of a site will take too long or
cost too much in permitting or mitigation, then the aggregates industry
won't move forward. That means a whole host of economic activity in a
community will not occur--all of this in the name of protecting a ditch
or farm pond.
Taken further, a significant cut in aggregates production could
lead to a shortage of construction aggregate, raising the costs of
concrete and hot mix asphalt products for state and Federal road
building and repair, and commercial and residential construction. NSSGA
estimates that material prices could escalate from 80 percent up to 180
percent. As material costs increase, supply becomes limited, which will
further reduce growth and employment opportunities in our industry.
Increases in costs of our materials for public works would be borne by
taxpayers, and delay road repairs and other crucial projects. Given
that infrastructure investment is essential to economic recovery and
growth, any change in the way land use is regulated places additional
burden on the aggregates industry that is unwarranted and would
adversely impact aggregates supply and vitally important American jobs.
Additionally, EPA conducted no state outreach prior to releasing
this proposed rule, and little to no outreach after the fact. States
and localities will bear an enormous financial burden under this rule,
as it will affect construction, recreation facilities, and even
maintenance of roadside ditches. EPA should have consulted with the
states prior to proposing the rule in order to incorporate local needs
and capabilities.
We urge that EPA withdraw this rule until a more thorough economic
analysis has been performed, a Small Business Regulatory Flexibility
Act (SBRFA) panel has been conducted, the states and affected
communities have been consulted, and the Science Advisory Board has
finished their analysis and allowed stakeholders to comment on their
conclusions. Without a thorough outreach to affected communities--which
EPA has not conducted--this rule will harm not only aggregates
operators and our transportation infrastructure, but the economy as a
whole.
NSSGA appreciates this opportunity to submit a statement on the
devastating effects of a broad expansion of Clean Water Act
jurisdiction on the aggregates industry.
______
Portland Cement Association,
Washington, DC,
June 24, 2014.
Hon. Doc Hastings, Chairman,
Hon. Peter DeFazio, Ranking Member,
House Natural Resources Committee,
Washington, DC 20515.
Hon. Tom McClintock, Chairman,
Hon. Grace F. Napolitano, Ranking Member,
House Subcommittee on Water and Power,
Washington, DC 20515.
Dear Chairman Hastings, Ranking Member DeFazio, Subcommittee
Chairman McClintock and Ranking Member Napolitano:
Thank you for holding today's hearing, entitled, ``New Federal
Schemes to Soak Up Water Authority: Impacts on States, Water Users,
Recreation, and Jobs.'' The Portland Cement Association (PCA)
represents twenty-seven (27) cement companies operating eighty-two (82)
manufacturing plants in thirty-five (35) states, with distribution
centers in all fifty (50) states, servicing nearly every congressional
district. PCA members account for approximately eighty (80) percent of
domestic cement-making capacity. On behalf of PCA, I wish to share the
views of America's cement manufacturing industry.
PCA has serious concerns with the proposed changes to the Clean
Water Act and the economic ramifications the rule would have on the
building and construction sectors. The interpretative effects of the
rule would directly impact domestic cement production as plant
operators determine the new law's jurisdiction on their property. In
terms of production, the cement industry is regional in nature. Most
cement manufacturing plants are located in rural areas near limestone
deposits, the principal ingredient in producing cement. Cement
manufacturing is a capital-intensive industry, and manufacturing sites
are constructed near limestone deposits where possible with the
presumption that the mineral will continue to be accessible. PCA is
concerned that the proposed rule would prevent facilities from fully
accessing these limestone deposits. At a minimum, the rule would
require hydrological and geological surveys and increased layers of
regulation that are costly and time consuming.
Land developers also would be more susceptible to citizen lawsuits
challenging local actions based on regulations that are poorly defined.
Increased project delays and production costs for critical
infrastructure and commercial development projects would be severe and
damaging to a sector that continues to recover from the severe economic
downturn.
America's cement manufacturers urge lawmakers to communicate
industry concerns to the Environmental Protection Agency and the U.S.
Army Corps of Engineers. PCA supports measures, including legislation,
that address industry concerns, including withdrawal of the rule and
limitations on funding to implement the rule.
Thank you for holding today's hearing. PCA looks forward to working
with you and members of the committee on this important issue.
Sincerely,
Cary Cohrs,
Chairman of the Board.
______
Trout Unlimited,
Arlington, VA,
June 25, 2014.
Hon. Tom McClintock, Chairman,
Hon. Grace F. Napolitano, Ranking Member,
House Subcommittee on Water and Power,
Washington, DC 20515.
Re: June 24 hearing on ``New Federal Schemes to Soak Up Water
Authority: Impacts on States, Water Users, Recreation, and
Jobs''
Dear Chairman McClintock and Ranking Member Napolitano:
I write on behalf of Trout Unlimited and its 155,000 members to
comment on Federal policies regarding water resources, specifically the
Forest Service's Proposed Directive for Groundwater Resource Management
and the Administration's Clean Water Act jurisdiction rulemaking. The
title of the hearing suggests that Federal policies have a negative
influence on jobs and recreation. To the contrary, the aforementioned
directive and rulemaking are designed to protect the clean water that
provides for fishing, hunting, and other forms of outdoor recreation
and substantial numbers of jobs and economic activity generated through
those activities.
Each year, 47 million Americans head into the field to hunt or
fish. These are not simply traditions or hobbies--they are fundamental
components of our Nation's economy. The money sportsmen spend in
pursuit of their passion supports everything from major manufacturing
industries to small businesses in communities across the country. The
economic benefits of hunting and angling are especially pronounced in
rural areas, where money brought in during the hunting season can be
enough to keep small businesses operational for much of the year. These
expenditures directly and indirectly support more than 1.5 million jobs
in every corner of the country and ripple through the economy to the
tune of $200 billion per year. Many other forms of outdoor recreation
also depend on clean water and a healthy environment. According to the
Outdoor Industry Association, boating, including canoeing and kayaking,
had a total economic impact of $206 billion in 2012 supporting 1.5
million jobs.
Forest Service's Proposed Directive for Groundwater Resource Management
The Forest Service Organic Administration Act directs the agency to
secure ``favorable conditions of water flows.'' 16 U.S.C. Sec. 473, 475
(1897). The proposed Groundwater Directive is an essential step toward
fulfilling the agency's fundamental statutory mandate. TU applauds the
Forest Service for taking this step to become the steward for supplies
of fresh water for future generations that the Organic Administration
Act contemplated in 1897.
The hydrologic connection between groundwater and river systems is
increasingly recognized as a key component to sustainable water
management. Western states in particular have begun to integrate
groundwater concerns with surface water management. The Forest Service
has a role to play in sustainably managing water resources and ensuring
fresh water supplies into the future. The Multiple-Use Sustained-Yield
Act (MUSYA)--which recognizes watershed protection as one of five co-
equal purposes of National Forests nationwide--authorizes the Forest
Service to cooperate with state and local government agencies and other
interested parties to advance management efforts. 16 U.S.C. Sec. 528,
528, 530 (1960).
The Forest Service plays a major role in minimizing both water
filtration costs for downstream communities and flooding by managing
healthy landscapes that allow rivers to connect to their floodplains.
Prior to the proposed directive the Forest Service has not had a policy
that provides comprehensive direction for management of groundwater
resources on national forest lands. A national groundwater policy helps
to clarify responsibilities for groundwater resource management at each
level of the Forest Service.
Because existing Forest Service water policy is limited to surface
water, the agency's ability to address watershed-scale adaptation
issues is seriously hampered. For example, groundwater leaking into
mining works, and the resulting dewatering of streams due to
interception of groundwater inflows, can cause serious problems. This
can be mitigated with liners and patch-like corking at points of
groundwater intrusion. Groundwater is an integral component of the
hydrological cycle in all watersheds. The Forest Service's proposed
directive fills a major gap in existing agency resource management
policy.
Based on TU's extensive work with state-held water rights and water
policy, we believe the Forest Service can amend the existing Forest
Service manual to recognize the hydrologic connection between surface
water and groundwater while respecting state-managed water allocation
procedures. This can be done without imposing any new requirements on
holders of state-issued water rights, and without changing the way
state groundwater or surface water quality regulations affect national
forests and grasslands.
Clean Water Act Jurisdiction and Waters of the United States Rulemaking
The Environmental Protection Agency and Army Corps of Engineers
have proposed a rule to clarify the jurisdiction of the Clean Water
Act. Even though these agencies are outside the subcommittee's
jurisdiction we offer the following comments to share our position on
the proposed rule. TU strongly supports the proposed rule because it
will clarify and strengthen the very foundation of the Clean Water
Act's protections for important fish and wildlife habitat. Based on our
long experience working in the field with the Clean Water Act, and the
detailed analysis completed by the agencies and OMB for the proposal,
we believe that the new rule is worthy of thoughtful engagement through
the recently extended comment period. The proposed rule will provide
landowners, conservationists, and businesses with substantial
improvements in how the law is implemented.
The Clean Water Act is very valuable to TU. Our mission is to
conserve, protect and restore North America's trout and salmon
fisheries and their watersheds. Our volunteers and staff work with
industry, farmers, and local, state and Federal agencies around the
Nation to achieve this mission. On average, each TU volunteer chapter
annually donates more than 1,000 hours of volunteer time to stream and
river restoration and youth education. The Act, and its splendid goal
to ``restore and maintain the chemical, physical, and biological
integrity of the Nation's waters'' serves as the foundation to all of
this work. Whether TU is working with farmers to restore small
headwater streams in West Virginia, removing acidic pollution caused by
abandoned mines in Pennsylvania, or protecting the world famous salmon-
producing, 14,000-jobs-sustaining watershed of Bristol Bay, Alaska, the
Clean Water Act is the safety net on which we rely.
The Clean Water Act has yielded positive results over the past 40
years. When the Clean Water Act was first enacted, many of Ohio's
waters, such as Lake Erie and the Cuyahoga River, were so polluted that
the goal of making these waters ``fishable and swimmable'' was nearly
unthinkable in some locations. Similarly, Long Island Sound and many
New York waterways were plagued by pollution problems. More than 40
years later, Lake Erie hosts thriving steelhead and other sport
fisheries, the Carmans River on Long Island hosts one of the most
unique brook trout fisheries in the eastern United States, and Montauk
is a world class saltwater fishing destination. These successes would
not have been possible without the Clean Water Act.
Unfortunately, the Nation's clean water safety net is broken, and
if you appreciate clean water and the Clean Water Act, then you will
appreciate the agencies' efforts to resolve the law's most fundamental
question: which waters are--and are not--covered by the Clean Water
Act.
Over the last 15 years a series of Supreme Court decisions have
confused these protections. The agencies' proposal takes important
steps to clarify and restore protections to intermittent and ephemeral
streams that may only flow part of the year. These intermittent and
ephemeral streams provide habitat for spawning and juvenile trout,
salmon, and other species, and protecting these streams means
protecting the water quality of larger rivers downstream. Thus,
sportsmen strongly support the reasonable efforts embodied in the
proposal from the agencies to clarify and restore the protection of the
Clean Water Act to these bodies of water where we spend much of our
time hunting and fishing. Because of the uncertainties caused by the
Supreme Court cases, a rulemaking was sought by many business
interests, as well as by Supreme Court Chief Justice Roberts who
presided over the Rapanos case.
The proposed rule works to clarify what waters are not
jurisdictional. The proposed rule and preamble reiterates all existing
exemptions from Clean Water Act jurisdiction, including many farming,
ranching, and forestry activities. These exemptions include activities
associated with irrigation and drainage ditches, as well as sediment
basins on construction sites. Moreover, for the first time, the
proposed rule codifies specific exempted waters, including many upland
drainage ditches, artificial lakes and stock watering ponds, and water
filled areas created by construction activity. TU works with farmers,
ranchers, and other landowners across the Nation to protect and restore
trout and salmon habitat. We have a keen interest in ensuring that the
proposal works well for landowners, on the ground, and on their
properties.
Last, we highlight the great, and direct, benefit that clean water
and healthy watersheds provide to your districts and state. For
example, California's Water Action Plan prioritizes increasing
protection for small headwater streams because watersheds in the
Cascades, Sierra Nevada and other forested areas of the state are the
places of origin for more than two-thirds of the state's developed
water supply. Just this month the state legislature and Governor's
office reached a budget deal that will bring new investment into
headwaters and mountain meadow restoration for purposes of water supply
reliability. Water originating in the Cascades and Sierra Nevada
supplies all or part of the need for 23 million Californians and
millions of acres of agricultural land. Up to one-half of the fresh
water flowing into the Delta begins as snow and rain in these
watersheds. The protections afforded by the Clean Water Act are needed
now more than ever.
Forty years after enactment the Clean Water Act has come to a major
crossroads. The agencies authorized by the Transportation and
Infrastructure Committee and full Congress to implement the Act,
spurred by the Supreme Court itself and a wide range of stakeholders,
have put forth a proposal that will help strengthen the very foundation
of the law for years to come.
Sincerely,
Steve Moyer,
Vice President for Government Affairs.
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Letter dated June 19, 2014, from Rep. Napolitano to Gina
McCarthy, Environmental Protection Agency
Memorandum of Understanding between the State of Wyoming State
Engineer's Office and the USDA Forest Service, Rocky Mountain
Region 2 and Intermount Region 4, submitted by Patrick Tyrrell,
Wyoming State Engineer
Testimony given at a Joint Roundtable Hearing held on June 2,
2014 in Phoenix, AZ, "Full Disclosure: What the EPA's Water
Rule Means for Arizona''
--Schweikert, Hon. David, Chairman of the House Science,
Space, and Technology Subcommittee on the
Environment
--Smith, Hon. Lamar, Chairman, House Science, Space, and
Technology Committee
--Franks, Hon. Trent, a Representative in Congress from the
State of Arizona
--Griffin, Hon. Gail, a Senator from the State of Arizona,
Chairman of the Senate Government and Environment
Committee
--Salmon, Hon. Matt, a Representative in Congress from the
State of Arizona
--Engel, Dr. Kirsten, University of Arizona
--Hinck, Matthew, Arizona Rock Products Association
--Kamps, Spencer, Home Builders Association of Central
Arizona
--Lacey, Michael J., Arizona Department of Water Resources
--LaSlavic, Nicole, National Association of Realtors
--Lynch, Robert S., Irrigation and Electrical Districts'
Association of Arizona
--Mendoza, Gregory, Governor, Gila River Indian Community
--Norton, Kelly, Arizona Mining Association
--Smallhouse, Stefanie, Arizona Farm Bureau
--Urton, J. Michael, San Carlos Irrigation and Drainage
District, June 27, 2014 Letter
[all]