[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

                               __________

       Printed for the use of the Committee on Natural Resources


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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

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    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.
---------------------------------------------------------------------------
    \1\ www.fs.fed.us/pnw/pubs/pnw_gtr812.pdf.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ 79 Fed. Reg. 25815.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \1\ http://www2.epa.gov/sites/production/files/2014-04/documents/
fr-2014-07142.pdf.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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]