[Senate Hearing 114-292]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 114-292

 EROSION OF EXEMPTIONS AND EXPANSION OF FEDERAL CONTROL_IMPLEMENTATION 
            OF THE DEFINITION OF WATERS OF THE UNITED STATES

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

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON FISHERIES, 
                          WATER, AND WILDLIFE

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 24, 2016

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
  [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


       Available via the World Wide Web: http://www.gpo.gov/fdsys

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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             SECOND SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska

                 Ryan Jackson, Majority Staff Director
               Bettina Poirier, Democratic Staff Director
                              
                              
                              ----------                              

             Subcommittee on Fisheries, Water, and Wildlife

                     DAN SULLIVAN, Alaska, Chairman
JOHN BARRASSO, Wyoming               SHELDON WHITEHOUSE, Rhode Island
SHELLEY MOORE CAPITO, West Virginia  THOMAS R. CARPER, Delaware
JOHN BOOZMAN, Arkansas               BENJAMIN L. CARDIN, Maryland
JEFF SESSIONS, Alabama               BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
JAMES M. INHOFE, Oklahoma (ex        BARBARA BOXER, California (ex 
    officio)                             officio)
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page

                              MAY 24, 2016
                           OPENING STATEMENTS

Sullivan, Hon. Dan, U.S. Senator from the State of Alaska........     1
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................     3
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................   203

                               WITNESSES

Parrish, Don, Senior Director, Regulatory Relations, American 
  Farm Bureau Federation, accompanied by: Jody Gallaway..........    10
    Prepared statement...........................................    12
    Responses to additional questions from Senator Whitehouse....    36
Schiff, Damien M., Principal Attorney, Pacific Legal Foundation..   148
    Prepared statement...........................................   150
    Responses to additional questions from Senator Inhofe........   159
Wilkinson, Valerie L., Chief Financial Officer, ESG Companies....   164
    Prepared statement...........................................   166
    Responses to additional questions from Senator Inhofe........   174
    Response to an additional question from Senator Whitehouse...   176
Buzbee, William W., Professor of Law, Georgetown University......   178
    Prepared statement...........................................   180
Kovarovics, Scott, Executive Director, Izaak Walton League of 
  America........................................................   194
    Prepared statement...........................................   196

 
EROSION OF EXEMPTIONS AND EXPANSION OF FEDERAL CONTROL--IMPLEMENTATION 
            OF THE DEFINITION OF WATERS OF THE UNITED STATES

                              ----------                              


                         TUESDAY, MAY 24, 2016

                               U.S. Senate,
         Committee on Environment and Public Works,
            Subcommittee on Fisheries, Water, and Wildlife,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:30 p.m. in room 
406, Dirksen Senate Office Building, Hon. Dan Sullivan 
(chairman of the subcommittee) presiding.
    Present: Senators Sullivan, Whitehouse, Barrasso, Capito, 
Boozman, Fischer, Rounds, Inhofe, Cardin, and Markey.

            OPENING STATEMENT OF HON. DAN SULLIVAN, 
             U.S. SENATOR FROM THE STATE OF ALASKA

    Senator Sullivan. The Subcommittee on Fisheries, Water, and 
Wildlife will now come to order.
    Good afternoon. I want to thank all the witnesses for being 
here. I want to thank the members for coming out to this 
important hearing.
    The purpose of the hearing is to discuss the implementation 
of the Waters of the United States and the expansion of Federal 
control that has come with it. Again, I would like to thank all 
the witnesses for their testimony. We have a distinguished 
panel of witnesses today, and it is very important for this 
subcommittee and for all of Congress to hear what is really 
happening on the ground when our constituents try to develop 
projects on their private property or build homes or expand 
economic opportunity in their States.
    Erosion of property rights, that I think we are going to 
hear about today, has been happening for years, not just this 
Administration. But it has been happening without any change in 
the Federal Clean Water Act and without any change in the 
regulatory definition of waters of the U.S. In fact, based on 
testimony we will hear today, it is clear that the purpose of 
the Obama administration's WOTUS rule was to paper over the 
gross expansion of Federal control that the Corps and the EPA 
have been trying and focusing on expanding for years.
    I want to take a minute to talk about what has been 
happening in my State, in Alaska. These are really important 
issues for Alaskans.
    Already a huge percentage of Alaska falls under the Federal 
Clean Water Act jurisdiction. Alaska has 43,000 miles of 
coastline, millions of lakes, and more than 43 percent of our 
State's surface area is composed to wetlands, which accounts 
for 65 percent of all the wetlands in the United States. Let me 
say that again. Sixty-five percent of all wetlands in the 
United States of America are in one State. This is why this is 
such an important issue for us.
    Now the Corps and the EPA are trying to expand their reach 
in terms of what constitutes a wetland by claiming that land 
with permafrost, a layer of frozen soil, is also within their 
jurisdiction, although there is no statutory or regulatory 
authority to grant them that jurisdictional expansion.
    Permafrost can be found beneath 80 percent of the State of 
Alaska. Alaska is 663,300 square miles. That means over 530,000 
square miles of Alaska overlays permafrost. That area, in case 
you are wondering, is twice the size of Texas and larger than 
three times the size of California.
    Currently, permafrost does not meet the regulatory 
definition of a wetland, which has not changed in decades. To 
change the definition to include permafrost, the Corps would 
have to revise their 1987 manual following notice and comment 
and rulemaking, which they have not done. But they have 
expanded the definition anyways.
    For example, the Corps is now telling constituents of mine, 
like the Schok family of North Pole, Alaska, that they cannot 
build on their land because of frozen soil. I want to thank the 
Pacific Legal Foundation for fighting for the Schoks and Damien 
Schiff for being here today to share their stories and other 
stories of landowners around the country who are experiencing 
similar Federal overreach.
    The stories in the written testimony of today's witnesses 
are incredible, and in many ways shocking. Not only do the EPA 
and the Corps think frozen ground in Alaska is waters of the 
United States, but Federal agencies are asserting authority 
over even more features, such as previously converted crop 
land, stock ponds, water and soil far beneath the surface, 
puddles in dirt roads, tire ruts, and depressions in gravel 
parking lots, and on activities in adjacent lands such as 
plowing and changing crops.
    Now, one of the things that I have tried to emphasize and 
seen in this committee is we all believe in the need for clean 
water, and we all believe in the need for clean air. And 
certainly there is no monopoly on the truth of that issue. 
Sometimes my colleagues on one side want to say it is only 
Democrats who believe in these things. We all believe in it.
    But we also all believe, I hope, that agencies have to 
abide by Federal regulations and by statutes, and they cannot 
expand their jurisdiction on their own. The expansion of the 
jurisdiction of the Clean Water Act and the Clean Air Act 
belong in one realm in our Federal Government, and that is the 
Congress of the United States.
    One of my biggest surprises on this committee is how often 
we are not conducting oversight for this kind of Federal 
overreach. The EPA and the Corps are bypassing Congress and 
ducking Supreme Court rulings to get to their jurisdictional 
conclusions, and this is happening all over the United States, 
and even though the WOTUS rule has been stayed by a Federal 
Court of Appeals.
    I want to thank the witnesses for being here this morning. 
I look forward to hearing the testimony of our witnesses.
    Now I would like to provide the Ranking Member, Senator 
Whitehouse, with his opportunity for opening comments.
    Senator Whitehouse.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Mr. Chairman. Before I get 
to my opening comments for this particular hearing, let me 
thank you again for the, I thought, terrific bipartisan hearing 
that you led on marine debris. It was a terrific opportunity, I 
think, for both sides of the aisle to come together on an issue 
where we have significant common cause in your very large ocean 
State and my much smaller ocean State.
    Today, however, we have a rather different agenda. The 
subcommittee meets again to paint the Environmental Protection 
Agency and Army Corps of Engineers' implementation of the Clean 
Water Act as an overreach of Government authority and a 
minefield of regulations aimed at taking down the little guy.
    In reality, for over 40 years the Clean Water Act, passed 
in a bipartisan manner, has strengthened the health of our 
waterways. Rivers and wetlands that were once unusable due to 
pollution are again swimmable and fishable.
    Just last week the Providence Journal ran a column from its 
nature columnist, Scott Turner, called Savoring the Smell of 
Salt Water. He wrote, ``When we moved to Providence in 1996, 
the smell of oil and sewage or rotting algae and shellfish 
signified the arrival of warm air. That was because the first 
southern air of the spring season showed up after passing over 
polluted Narragansett Bay. My, how things have changed,'' he 
continued. ``On May 11th this year, for example, the first 
sustained southern winds of the season puffed into Providence. 
That warm welcomed air did not stink. Instead, those breezes 
conveyed the salty smell of the sea from the reaches of upper 
Narragansett Bay. Hallelujah!''
    [The referenced article follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Whitehouse. That's Rhode Island's story.
    Last October I traveled to Ohio, and there I went out 
fishing with charter boat captains on Lake Erie. Significant 
rains last summer washed fertilizer and manure into Lake Erie, 
turning the lake thick as soup with algae and bacteria, 
requiring a drinking water advisory and ruining fishing 
grounds.
    I would like to submit for the record the September 2015 
article from the New York Times that highlights one of the most 
toxic blooms in recent history, as well as the piece from the 
Providence Journal.
    Senator Sullivan. Without objection.
    [The referenced article follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
           
    Senator Whitehouse. Thank you, Chairman.
    Lake Erie has seen similar events over and over again in 
recent years. Large rain bursts--expected more often due to 
climate change--pour agricultural runoff through the Clean 
Water Act's blanket loophole for agriculture.
    If you are an upstream State, you may say the Clean Water 
Act is too strong. Downstream States may have a different view.
    As a downstream State, Rhode Island understands the 
importance of headwaters and the influence of upstream 
pollution. Our streams and wetlands are vital for fish and 
wildlife and for Rhode Island's vibrant recreational industry. 
What enters waters upstream affects our Narragansett Bay, our 
ocean, our beachgoers, and our fishermen. Rhode Islanders love 
fishing. People come from everywhere to fish our waters. It is 
an important business.
    Strong enforcement of the Clean Water Act is our best 
defense against the upstream pollution that is marring our 
streams, rivers, lakes, and oceans. The jurisdictional 
confusion left in the wake of the Supreme Court's decisions in 
this area weakened the efficacy of the Clean Water Act and 
created uncertainty for both regulators and the regulated, 
which is why in 2014 the EPA and Army Corps promulgated the new 
Clean Water rule to provide brighter line rules for 
jurisdiction and add clarity to a blurred world.
    The Sixth Circuit Court of Appeals has temporarily stayed 
the rule nationwide, forcing the EPA and Army Corps to continue 
to rely on the guidance they developed before the Supreme Court 
decisions.
    Whether my colleagues are willing to accept it or not, the 
reality is that the Clean Water Rule is an important 
regulation. It will clear up years of uncertainty about 
protecting water resources. It has broad support from 
businesses and sportsmen alike, and it should have the support 
of my colleagues on the subcommittee. Attacks on this rule have 
been often based more on Government conspiracy theories than on 
the actual rule itself.
    For the record, let me emphasize first that the rule has 
substantive legal support, which was well documented by EPA and 
the Army Corps. The agencies included an entire chapter in 
their response to public comments on the legal grounding of the 
rule and published a technical support document entitled 
Statute, Regulations, and Case Law Legal Issues.
    Second, EPA and the Army Corps did not develop this rule in 
some secret lair in the base of a volcano. In promulgating the 
rule, the Corps and EPA compiled over 1,200 peer-reviewed 
scientific publications, held over 400 public meetings with 
stakeholders around the country, and considered over 1 million 
public comments, nearly 90 percent of which were in support of 
the rule.
    Third, and most important for this hearing, the rule does 
not represent an expansive power grab by the Federal 
Government, nor does it eliminate exemptions under the Clean 
Water Act. It simply aims to restore what was protected before 
Supreme Court decisions in 2001 and 2006.
    All previous exemptions and exclusions were maintained, and 
the rule went so far as to explicitly label some specific 
waters as non-jurisdictional for the first time. The rule 
actually reduces coverage of total waters protected by the 
Clean Water Act, and according to the Corps and EPA, would only 
lead to around 3 to 5 percent more assertions of jurisdiction 
over U.S. waters as compared to before the rule.
    And for those of us downstream, we like, Mr. Chairman, this 
protection. Thank you.
    Senator Sullivan. Thank you, Senator Whitehouse.
    I do want to comment on our hearing from last week. I agree 
fully with you, I think there is a lot of opportunity for 
bipartisan support to move forward on the issue of ocean 
debris, and I look forward to working with you on that.
    I will also mention, with regard to broad support, there 
are 34 States that have now sued to stop the Waters of the 
U.S., so in my view there is not that much broad support.
    But what I want to do right now is turn to the witnesses. 
Each witness will have 5 minutes for their opening statements, 
and we will provide any other additional written material for 
the record as you wish.
    We will begin with Mr. Don Parrish, the Senior Director of 
Regulatory Relations for the American Farm Bureau Federation.
    Mr. Parrish, you are recognized for 5 minutes.

     STATEMENT OF DON PARRISH, SENIOR DIRECTOR, REGULATORY 
  RELATIONS, AMERICAN FARM BUREAU FEDERATION, ACCOMPANIED BY: 
                         JODY GALLAWAY

    Mr. Parrish. Thank you, Mr. Chairman. Thank you, Ranking 
Member.
    My name is Don Parrish, and I appreciate the opportunity to 
share with you what our members are already experiencing with 
the regulation of low spots and ephemeral drains. What I will 
describe are real on-the-ground experiences for farmers who are 
facing the consequences of this regulation. We are going to 
draw from information provided by a Farm Bureau member, a 
farmer, a biologist, a senior consultant in Northern 
California, Ms. Jody Gallaway. Ms. Gallaway is sitting behind 
me here today. Her experiences are provided for the committee 
in more detail in the attachment to my testimony.
    But I want to be clear. This regulation is a growing 
disaster for farmers and ranchers. Farm Bureau and others have 
testified before this committee and other committees regarding 
what we believe is the real scope of the WOTUS rule. The 
reality, despite testimony from top Corps and EPA officials, 
contrary to what they are saying, normal farming exemptions 
will not protect commonplace farming and ranching practices 
from burdensome Federal regulation.
    Before the rule was finalized, and despite a nationwide 
stay by the Sixth Circuit Court of Appeals, we began hearing 
from our members that California Corps districts were already 
implementing some of the rule's most controversial provisions, 
such as asserting jurisdiction based on features that are not 
visible to the human eye. The Corps is making jurisdictional 
determinations and tracking farming activities based solely on 
imagery that is not publicly available, such as classified or 
proprietary aerial photography and LIDAR imagery.
    The Corps has used historical aerial photographs dating 
back to unknown periods of time to determine historical 
landscape conditions and evaluate changes in agricultural 
activities and farming practices. For example, two farmers 
invested tens of thousands of dollars to proactively map their 
private property to ensure that their farming activities would 
avoid WOTUS and any impacts to WOTUS only to have the Corps 
threaten enforcement proceedings for activities related to road 
building and the construction of stock ponds, both--both--
exempt activities conducted years before these landowners 
actually owned the property.
    EPA Administrator McCarthy assured Congress that farmers 
would not be impacted because of the agricultural exemptions. 
Farm Bureau has been telling Congress that is not true. In 
practice, the Corps routinely narrows the farming exemptions 
and interprets the recapture provision too broadly. For 
example, in California, any plowing--any plowing, no matter how 
shallow--in or near a WOTUS draws threats or permit 
requirements. The Corps routinely sends threatening letters to 
farmers if they plow their fields, if they change from growing 
alfalfa hay to cattle grazing and then back to alfalfa hay 
growing. The California districts routinely require wetland 
delineations to include puddles in dirt roads, puddles in tire 
racks, and depressions, depressions in parking lots, gravel 
parking lots, claiming they provide habitat for endangered 
species.
    The new rule allows the Corps to broadly assert 
jurisdiction based on indicators, not actual ordinary high 
water mark. Ms. Gallaway, who sits behind me, has seen the 
Corps regulators make ordinary high water mark determinations 
that differ by as much as 50 feet. That has huge implications 
for on-the-ground projects.
    I will conclude with this example. A farmer requested an 
official jurisdictional determination, but the Corps ignored 
it, ignored it. After the farmer expressed frustration, the 
Corps assigned a new regulator. He promptly rejected Ms. 
Gallaway's delineation and requested more information.
    Ms. Gallaway completed an ordinary high water mark 
datasheet at significant cost to the landowner. The regulator, 
without collecting any field data--any field data--rejected the 
field data; instead, identified the ordinary high water mark 
based on an interpretation of an aerial photograph. When Ms. 
Gallaway asked to see the aerial photograph, she was denied. 
The Corps district said it was proprietary information.
    Based on what we see in California, red tape, the use of 
secret information, and delays are going to be enormous 
problems for farmers and ranchers, and they are only going to 
get worse. Importantly, normal farming exemptions are going to 
be further narrowed, and we are going to see more and more 
permit requirements for normal farming practices. Congress has 
to step in.
    I will be happy to answer any questions.
    [The prepared statement of Mr. Parrish follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
           
    Senator Sullivan. Thank you, Mr. Parrish.
    The next witness is Mr. Damien Schiff, the principal 
attorney for the Pacific Legal Foundation.
    Mr. Schiff, you are recognized for 5 minutes.

  STATEMENT OF DAMIEN M. SCHIFF, PRINCIPAL ATTORNEY, PACIFIC 
                        LEGAL FOUNDATION

    Mr. Schiff. Thank you, Mr. Chairman, and thank you also to 
the Ranking Member, Senator Whitehouse, for the opportunity to 
talk today about this critically important issue of the scope 
of the Clean Water Act.
    The Clean Water Act is a law that has been controversial 
for many decades. The Foundation and its attorneys have 
participated in many cases concerning the scope of the Clean 
Water Act, including the Supreme Court's two most recent cases 
addressing that statute, Rapanos v. United States and Sackett 
v. EPA.
    The recent controversy has focused, of course, on the scope 
of the WOTUS rule, but in my testimony this afternoon I would 
like to draw the committee's attention to issues that are not 
directly raised by the WOTUS rule but nevertheless, in my view, 
represent the extravagance with which the EPA and the Corps 
view their authority under the Clean Water Act.
    And I would like to begin with a case that, Mr. Chairman, 
you mentioned in your opening remarks, concerning the Schok 
family in Alaska. The Schoks own a pipe fabrication business, 
and they want to expand their business and acquire a new 
location for that purpose. But the Corps has intervened and 
asserted jurisdiction over approximately 200 acres of that 
property, calling it permafrost that is subject to the Clean 
Water Act.
    Now, no one disputes that determining whether a site 
contains wetlands can be exceptionally difficult. And to 
provide some measure of predictability, Congress in 1992 
mandated that the Corps use its 1987 wetlands manual for 
delineating wetlands until a final manual would be adopted.
    Now, under the manual it is clear that permafrost does not 
qualify as a wetland. But to get around that obstacle, the Army 
Corps, in 2007, promulgated a so-called Alaska supplement. This 
supplement changes a key criterion for wetlands delineation 
which allows the agency to regulate permafrost. Again, that is 
a result that could not be reached under the congressionally 
mandated, nationally applicable 1987 wetlands manual.
    Now, although permafrost is not that common in the lower 
48, the principal raised by the Schok family's case pertains 
throughout the country. Should a Federal agency be allowed to 
deviate from its published, nationally applicable rules just to 
expand its power? The answer clearly is no.
    Another example of agency excess under the Clean Water Act 
comes out of Andy Johnson's battle with EPA over his stock 
pond. Johnson owns an 8-acre parcel in Fort Bridger, Wyoming. 
The rural property contains both his home as well as some 
surrounding land which he uses to raise various farm animals, 
including horses and cattle. Johnson obtained a permit from the 
State of Wyoming to construct a stock pond in order to improve 
the water quality on his property.
    Unfortunately, EPA didn't care for that, and in January 
2014 issued a compliance order against Mr. Johnson, saying that 
his construction of the stock pond violated the Clean Water 
Act, this notwithstanding the fact that the Clean Water Act, 
since the late 1970s, has clearly exempted the construction and 
maintenance of farm and stock ponds from Clean Water Act 
regulation.
    Nevertheless, the EPA said that the Clean Water Act applied 
to Mr. Johnson's stock pond because he did not construct it 
simply for the use of his livestock but also for the aesthetic 
pleasure that it might give himself and his family; and 
therefore, because his intent was not limited to simply 
providing water for his livestock, the exemption did not apply. 
And the compliance order that was issued against Mr. Johnson 
not only told him that he had to undo everything that he had 
done, but also threatened tens of thousands of dollars per day 
in civil penalties if he did not immediately respond to the 
compliance order.
    Now, thankfully, following a lawsuit brought by Pacific 
Legal Foundation attorneys, EPA agreed to a reasonable 
settlement with Mr. Johnson, allowing him to keep his stock 
pond without having to obtain a permit. But there is no reason 
to think that the Agency will not continue to enforce its very 
narrow interpretation of the stock pond exemption to farmers 
and landowners throughout the country.
    So, in closing, I would just like to emphasize that 
regardless of the WOTUS rule's fate, the history of the 
enforcement of the Clean Water Act by the Army Corps of 
Engineers as well as the EPA demonstrates that, frankly, all 
too often these agencies allow a misguided zeal for protecting 
the environment to override key constitutional and statutory 
protections for the Nation's farmers and landowners throughout 
the country.
    I thank you again for the opportunity, Mr. Chairman, and I 
look forward to answering any questions the committee may have.
    [The prepared statement of Mr. Schiff follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
        
    Senator Sullivan. Thank you, Mr. Schiff.
    Our next witness is Ms. Valerie Wilkinson. She is the Chief 
Financial Officer of the ESG Companies, on behalf of the 
National Association of Homebuilders.
    Ms. Wilkinson, you have 5 minutes. Thank you.

STATEMENT OF VALERIE L. WILKINSON, CHIEF FINANCIAL OFFICER, ESG 
                           COMPANIES

    Ms. Wilkinson. Thank you, Chairman Sullivan, members of the 
committee. I appreciate the opportunity to testify. My name is 
Valerie Wilkinson. I am a CPA and the Vice President and Chief 
Financial Officer of the ESG Companies, a small business based 
in Virginia Beach, Virginia.
    Homebuilders have become frustrated with the expansion of 
Federal authority over private property and believe the current 
permitting process is broken. For almost three decades we have 
been held hostage by the EPA and the Corps, who have 
continually altered the Clean Water Act 404 permit 
requirements. This is perplexing, as irrelevant sections of the 
Act have not changed since 1972.
    Our nightmare began when our company proposed plans for a 
multiuse community to address local housing demand. While we 
were clearing our land in 1989, the Corps asserted that our 
property contained jurisdictional wetlands and that a wetland 
delineation was required. This surprised us, as we had 
developed land with identical characteristics for years. 
Clearly, the rules had changed.
    We hired environmental experts to survey the land; however, 
the Corps dismissed their assessments. The delineation took 
years to complete because Corps officials disagreed on the 
criteria for determining wetlands. The regulatory environment 
changed again in 1999, when Virginia adopted the Federal 404 
regulations to create an expedited one-stop permitting system 
and required a permit to excavate the land. We hired more 
experts to complete another wetland delineation for the 
Virginia DEQ wetland permit.
    DEQ staff confirmed our expert's delineation, and we 
submitted our State permit request. We agreed to revise our 
plan to further avoid and minimize impacts, and provided 
mitigation so that for every one acre impacted, two acres of 
wetlands would be restored and another acre placed in 
preservation, resulting in no net loss of wetland acreage or 
functions. The DEQ applauded the fact of our exceeding the 
typical protective measures and issued a 15-year permit.
    Since the State and Federal requirements are the same, we 
were stunned when the Corps disregarded DEQ's delineation and 
added 36.7 acres of impacted wetlands to the project. The basis 
of their decision for this 25 percent increase was vague and 
unsubstantiated. And although we strongly disagreed, we tried 
to move the permit forward by offering a number of amendments 
to our proposal that further lessened the environmental impact 
and provided an extensive alternatives analysis which proved 
the other options unfeasible.
    Five years after we received the State permit, the Corps, 
utilizing the same regulations, denied our request. The Corps 
wrongly claimed that we had not adequately addressed 
information requests even though we had replied to every one, 
provided offsite analysis, as well as 17 onsite alternatives, 
and addressed every public comment to multiple public notices.
    Frustrated, we modified our project again in an effort to 
stay out of court and salvage some of our extensive investment. 
The significantly reduced plan decreased wetland impacts by 84 
percent and the Corps accepted this as a modification to our 
original application. However, the Corps adopted a new regional 
supplement which expanded the definition of a wetland, and we 
were forced to start over again with a new set of rules.
    It has been 11 years since filing our Federal application. 
We have responded to countless requests for information, 
studies, and data, only to be met with more delays and requests 
to update and revise the information. We have hired consultants 
and experts for an additional delineation, and although many 
requests appeared to be stalling mechanisms, we have complied 
again and again. We have been prevented from developing any of 
our 428 acres for 27 years, and our 15-year State permit will 
expire in 2018. Our efforts are reflected in the files on these 
boards.
    We fear that the worst is yet to come. The EPA and Corps 
have finalized a rule further expanding their authority under 
the Clean Water Act. This rule will lead to increased 
litigation and delays. Small businesses will not survive under 
these rules, as most do not have the time and resources to 
fight. We have spent over $4.5 million in the process and over 
$40 million in our investment and still are not close to a 
permit. If constructed, our project will create jobs, increase 
property tax revenue, and provide affordable housing.
    Thank you for the opportunity to testify, and I look 
forward to your questions.
    [The prepared statement of Ms. Wilkinson follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
           
    Senator Sullivan. Thank you, Ms. Wilkinson. That is very 
powerful testimony. I appreciate this.
    Our next witness is Mr. William Buzbee, Professor of Law at 
Georgetown University Law Center.
    Professor Buzbee, you have 5 minutes for your opening 
statement.

 STATEMENT OF WILLIAM W. BUZBEE, PROFESSOR OF LAW, GEORGETOWN 
                           UNIVERSITY

    Mr. Buzbee. Thank you, Chairman Sullivan, Ranking Member 
Whitehouse, and other committee members. I am William Buzbee, a 
professor at Georgetown University Law Center. I am pleased to 
testify today about both application of current Federal law 
under Clean Water Act and also briefly comment on the Waters of 
the United States rule, known as the Clean Water Rule.
    I should also note that previously I have testified at 
congressional hearings in the House and the Senate on these 
questions and also represented a bipartisan brief of former EPA 
administrators in the Rapanos case, which was also aligned with 
the George W. Bush administration.
    I think it is important to remember this has been an area 
of bipartisan support in the past, and I hope it will be again, 
too.
    Rather than covering the remarks I submitted in writing, I 
want to focus on two main issues. One is given the claims of 
regulatory overreach, I will address some of those claims and 
make a few suggestions. And then I will turn to issues of the 
Clean Water Rule and ways in which I believe it would be a 
beneficial and good turn in the law.
    So, first, on this issue of regulatory overreach, I think 
first, and most importantly, Federal policy should never be 
based on a story, but an assessment of how a regulatory program 
works overall. And I note today, as in many past hearings, and 
really since the SWANCC case, up until today, critics of Clean 
Water Act jurisdiction focus on wetlands and section 404. It is 
important to recall that the Waters of the United States issue 
and jurisdiction is the linchpin for all jurisdiction under the 
Clean Water Act, including industrial pollution discharges.
    Second, it is important to look at where the law stands 
today compared to where it stood prior to the SWANCC case. The 
Clean Water Act, as measured now, protects less water or fewer 
waters than it did during the Administration of President 
Ronald Reagan.
    Then, as I read the witness statements for today, a few 
things jumped out at me. First, as is not to be a surprise to 
any of us, you see unavoidable interaction of Federal, State, 
and local regulators, and it is important to remember that 
States' actions here, although sometimes disliked, are 
protected under the Clean Water Act; they are never forced to 
accept a project merely because at times it will be federally 
protected; they are subject to a strong savings clause.
    Second, thinking about the Army Corps' work and EPA's work, 
for a country as large as the United States, there is a 
formidable task in trying to provide regulatory consistency and 
also show sensitivity to local differences; and there is 
probably no area more than the Clean Water Act where the 
jurisdictional determinations call for this balance of rule-
like clarity and sensitivity to local circumstances.
    Part of this is a result of the Rapanos case. Several of 
the groups here today on this panel and past witnesses in 
similar hearings were ardent advocates in the Supreme Court, 
that the Supreme Court should embrace the so-called significant 
nexus rule, which required in many circumstances close 
attention to individual waters and their characteristics.
    Justice Kennedy's now authoritative opinion in Rapanos 
embraced that, and for good or bad, unless the Clean Water Rule 
is allowed to take effect, it requires substantial case-
specific judgment by regulators about how lands and waters 
function, including for things like filtering of pollutants and 
reducing flooding. So this sort of individual discretionary 
judgments is unfortunately, right now, in part the result of 
the significant nexus test embraces in Rapanos.
    If this is disliked, the Clean Water Rule would bring 
greater clarity. Also, the earlier Clean Water Restoration Act 
that was proposed would also bring greater clarity. And you 
can't have it both ways; you either need rule-like clarity with 
more law or you need to have discretionary judgments, and right 
now the law requires quite a bit of regulatory individual 
judgments.
    Looking at the overall data--I was looking it up in 
response to testimony today--it is important to understand that 
skirmishes and permit denials are not the norm here. The recent 
Army Corps data says that there were 79,000 permit activities 
this past fiscal year; that the Army Corps authorized 57,000 
permits, completed 49,000 jurisdictional determinations, and 95 
percent were authorized. The remainder received individual 
permits, and only 1 to 3 percent are subject to denials.
    Now, with my last few seconds I would suggest that the 
Clean Water rule is well grounded in law and science. I notice 
in statements there are some arguments that EPA and the Army 
Corps did not have power to act here. It is important to note 
that six Supreme Court justices in Rapanos called for action by 
regulation to bring clarity to the law.
    Second, as mentioned by Senator Whitehouse, the Clean Water 
Rule solidifies exemptions and carve-outs, and actually 
proposes to eliminate completely the longstanding Commerce 
clause sweep-up provision that allowed regulators to act based 
on the existence of commerce and industrial linkages. My sense 
is that the Clean Water Rule is well founded in science and the 
connectivity report and should be embraced.
    Thank you very much.
    [The prepared statement of Mr. Buzbee follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
         
    Senator Sullivan. Thank you, Professor Buzbee.
    Our final witness today is Mr. Scott Kovarovics. He is the 
Executive Director of the Izaak Walton League of America.
    Scott, you have 5 minutes for your opening statement. Thank 
you.

STATEMENT OF SCOTT KOVAROVICS, EXECUTIVE DIRECTOR, IZAAK WALTON 
                       LEAGUE OF AMERICA

    Mr. Kovarovics. Thank you, Chairman Sullivan and Senator 
Whitehouse, members of the subcommittee. I appreciate the 
opportunity to testify today on the Clean Water Rule. I am 
Scott Kovarovics, the Executive Director of the Izaak Walton 
League of America, and I am pleased to be here on behalf of not 
only the League, but the much broader community of Americans 
who enjoy hunting and angling and outdoor recreation.
    The League's 43,000 members nationwide are leading efforts 
locally to conserve and restore habitat and improve and monitor 
water quality. Our members enjoy hunting, angling, recreational 
shooting sports, and a myriad of other outdoor recreation. And 
our members and sportsmen nationwide understand that healthy 
natural resources provide the foundation for the outdoor 
traditions that tens of millions of Americans enjoy every year.
    Ensuring our Nation's streams, wetlands, and other waters 
are healthy is vitally important to Americans who hunt and fish 
for communities nationwide and for the outdoor recreation 
economy.
    Wetlands and streams provide essential habitat for fish, 
ducks, and other wildlife. Prairie potholes throughout the 
northern plains and southern Canada support 50 percent of the 
North American duck population in an average year. Ducks that 
grow to adulthood and hatch in those wetlands are harvested 
throughout the United States every fall. Headwaters and other 
small streams provide vital habitat for coldwater fish, provide 
essential spawning habitat for trout, salmon, and other fish, 
and support those fish throughout their lifecycles.
    Each year, nearly 50 million Americans go into the field to 
hunt or fish. The money that sportsmen and sportswomen spend 
benefits major manufacturing industries and small businesses in 
communities all across this country. These expenditures 
directly and indirectly support more than 1.5 million American 
jobs and ripple through the economy to the tune of $200 billion 
annually.
    And many other forms of outdoor recreation 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 additional jobs in this country.
    The Clean Water Rule is science-based, limited, and more 
specifically defines waters that are and are not covered by the 
Clean Water Act. The final rule narrows the historic scope of 
Clean Water Act jurisdiction. It clearly defines and limits 
tributaries through physical features and distinguishes 
tributaries from dry land ditches and erosional features, and 
it preserves and enhances existing exemptions for farming, 
ranching, and other land uses.
    Hunting, angling, and conservation groups, including the 
League, strongly support the final rule. It is also supported 
by businesses and industries that depend on clean water and a 
healthy environment. I will give you two quotes that offer 
examples.
    ``The Clean Water Rule is good for our business, which 
depends on clean fishable water. Improving the quality of 
fishing in America translates directly to our bottom line, to 
the numbers of employees we hire right here in America, and to 
the health of our brick and mortar stores all over the 
country.'' That is from Dave Perkins, the Executive Vice 
Chairman of the Orvis Company that has some 80 retail 
operations across the country and employs 1,700 people.
    Next, ``EPA's rule gives the business community more 
confidence that clean water sources, including streams and 
wetlands, are protected and removes uncertainty surrounding the 
Agency's authority to protect our waterways. This is good for 
the economy and vital for businesses that rely on clean water 
for their success.'' That is from Richard Eidlin, the Vice 
President of Policy and Campaigns at the American Sustainable 
Business Council, which represents 250,000 businesses across 
the country.
    The exemptions from the Clean Water Act are maintained and 
enhanced in the Clean Water Rule. As mentioned, since 1977, the 
Clean Water Act has included a number of exemptions from the 
404 permit process for discharges associated with farming, 
construction, mining, and other activities. Moreover, in an 
effort to provide even more clarity and certainty about the 
types of waters covered by the Clean Water Act, the final rule 
maintains existing regulatory exemptions and for the first time 
in regulation explicitly excludes specific waters and features 
from the definition of waters of the United States.
    The following summarizes some of those exemptions: prior 
converted cropland; many drainage ditches; artificially 
irrigated areas; artificial reflecting pools or swimming pools; 
small ornamental waters; erosional features, including gullies 
and rills; puddles; groundwater, including groundwater drained 
through subsurface drainage systems.
    Conserving and protecting streams, wetlands, and other 
waters is essential to Americans who hunt and fish and enjoy a 
wide array of other outdoor recreation. These activities depend 
on clean water and healthy habitat, including abundant 
wetlands. And these activities fuel the outdoor recreation 
economy, which totals hundreds of billions of dollars annually 
and supports millions of American jobs.
    The Clean Water Rule is vitally important to safeguarding 
our Nation's water resources, hunting and angling traditions, 
and the outdoor recreation economy. The final rule provides 
more clarity about the waters that are and are not covered by 
the Clean Water Act. It is based on overwhelming science and 
common sense, and it responds to common calls from Supreme 
Court justices, industry, and landowners to clarify agency 
regulations.
    I appreciate the opportunity to testify and happy to answer 
any questions. Thank you.
    [The prepared statement of Mr. Kovarovics follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Sullivan. Well, thank you.
    I want to thank all the witnesses. We have a very 
distinguished panel, a lot of different views, so I think we 
are going to have a good hearing this afternoon.
    I do want to emphasize again that I don't think that any of 
us, certainly I can say from my experience on this committee, 
we are all very focused on clean water, clean air. But the 
issues that have been raised here about certainty, about the 
Federal agencies' statutory authority are very, very important 
from a perspective of oversight, and it is not just members of 
this committee who have concerns.
    In the last 2 years, whether it is the WOTUS rule that has 
now had a Federal judge put a stay on that, whether it is the 
Clean Power Plan, which the Supreme Court, first time in its 
history, has put a stay on that before a district court has 
even ruled on it; several other cases, or even EPA 
Administrator McCarthy's statement on the eve of the EPA v. 
Michigan case, where, when asked if she thought she was going 
to win, she said, yes, but then she said, ``Even if we don't, 
we promulgated this rule 3 years ago. Most companies and 
everybody else are already in compliance. Investments have been 
made. We'll catch up.'' Essentially, even if we lose, we win, 
and that is not how the law works.
    So there is a lot of concern.
    And I do want to mention, again, Ms. Wilkinson, your point 
about uncertainty in changing the rules, how that impacts our 
economy, is also very, very powerful.
    So let me start with a question that relates to your case, 
and this is for Mr. Schiff or Ms. Wilkinson. My understanding 
is the Corps told Ms. Wilkinson's company that they can 
regulate land even if there is no surface connection to 
navigable water.
    First, I want to know did they actually say that. And can 
anyone explain to me how a high groundwater table creates 
Federal jurisdiction, particularly if the groundwater never 
reaches the surface? Wouldn't all of the State of Florida, for 
example, be subject to the EPA's jurisdiction if that is 
actually their legal view of their jurisdiction?
    Mr. Schiff, why don't you take a shot at that?
    Mr. Schiff. Thank you, Mr. Chairman. For a long time the 
Corps has used the idea of what they call shallow subsurface 
connection to justify the basis of Federal jurisdiction, and at 
bottom it is really an attempt to regulate groundwater and to 
expand surface jurisdiction without a congressionally 
appropriate change in the legislation.
    So, under the WOTUS rule, this is carried forward under the 
idea of adjacency jurisdiction, that if there is that shallow 
subsurface connection, then the Corps will consider your 
property to be adjacent to, and therefore subject to regulation 
under the Clean Water Act, adjacent to whatever the nearest 
navigable water may be where that shallow subsurface flow ends 
up.
    Senator Sullivan. So doesn't that greatly expand the 
jurisdictional reach?
    Mr. Schiff. It is hard to imagine, really, any area that 
otherwise would at least be, prima facie, subject to 
jurisdiction, because to some extent you are going to have that 
shallow groundwater flow in almost any part of the country.
    Senator Sullivan. Let me ask you another question. In a 
hearing last year I asked EPA Administrator Gina McCarthy if 
permafrost itself was jurisdictional under the proposed WOTUS 
rule. And if so, what is the significant nexus between 
permafrost, which, again, is frozen water and a navigable 
water, interstate water, or territorial sea. Her response was 
that permafrost specifically refers to permanently frozen soil. 
And while permafrost may underlie wetlands or open waters, it 
is not, in and of itself, a water of the U.S. subject to the 
rule and the jurisdiction of the rule.
    If that is her response, this is the head of the EPA, do 
the Corps and Alaska agree, in particular with regard to the 
Schok case that you are working on or more broadly in terms of 
their guidance?
    Mr. Schiff. No. And it is surprising that the administrator 
would take that position. But the Corps is certainly not 
reconcilable, its position is not reconcilable with what 
Administrator McCarthy said. The position of the Corps is that 
permafrost can qualify not just as a wetland, but much more 
importantly, as a water of the United States.
    Senator Sullivan. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. Just to follow up on that, it is not 
your position that because something is permafrost it could not 
be regulable under the Clean Water Act; i.e., something that is 
permafrost could, for other reasons, in addition to it being 
permafrost, make itself properly regulable under the Clean 
Water Act, correct?
    Mr. Schiff. Senator Whitehouse, certainly under existing 
law it can't be regulated.
    Senator Whitehouse. It can't be regulated as permafrost, 
per se, but one can have an area that is permafrost that is 
also a wetland, that is also an area through which a stream 
runs and so forth. So the fact that there is permafrost 
underneath a wetland feature doesn't disqualify the wetland 
feature from being regulable.
    Mr. Schiff. I think perhaps, Senator Whitehouse, there may 
be a semantic issue, because the Corps would say that we are 
not talking about permafrost underlying a wetland; we are 
talking about essentially just permafrost.
    Senator Whitehouse. And that, I think, is the difference 
here, and that is what I want to make sure. But your position 
is not that something just because it is permafrost can't be 
regulated under the Clean Water Act no matter what other 
conditions it may be exhibit. Your point is that just because 
it is permafrost shouldn't be enough to trigger Clean Water Act 
regulation.
    Mr. Schiff. At the very least, yes, that is correct.
    Senator Whitehouse. OK.
    And then to go to Mr. Parrish, you have indicated that the 
Army Corps, to quote you, ``still regulates puddles, including 
puddles in dirt roads, tire ruts, and depressions in gravel 
parking lots.'' Could I ask, as a question for the record, that 
you send me any and all information that you have, any and all 
paperwork from the Army Corps that substantiates that 
statement? That is worth, I think, pursuing. It doesn't have to 
be right now, but we can take that as a question for the 
record.
    Mr. Parrish. I can do that, but I can also bring forth a 
technical witness that can support that.
    Senator Whitehouse. The other question that I had had to do 
with arroyos. In your testimony, Mr. Schiff, I believe you said 
because sediment and fertilizer collected in stormwater could 
flow through the arroyo into the Rio Grande, the arroyo was 
regulated under the Clean Water Act. If you are a downstream 
water user, and somebody upstream is dumping pesticides, 
manure, waste, anything else into an arroyo that they know, you 
know, everybody knows is a couple times a year going to just 
flood and wash all that stuff down into the waterway, isn't 
that something that the EPA should be able to consider in 
protecting the downstream waterway?
    Mr. Schiff. Senator Whitehouse, I would say, first of all, 
it is hard to imagine any State in the Nation where that sort 
of activity would also be legal. So I think that it is a clear 
example of even in that extreme----
    Senator Whitehouse. Well, if it is outright illegal, then 
it certainly shouldn't be a great burden for the EPA to come in 
and say, look, we are regulating that, too.
    Mr. Schiff. Well, then you have a question of duplication 
of effort. And wouldn't it be much better if EPA could focus 
its authorities and limited budget on those issues that truly 
raise a Federal question?
    Senator Whitehouse. Perhaps. But your question was 
jurisdictional. You are not suggesting that an arroyo, because 
it is sometimes dry, is always beyond EPA's jurisdiction, no 
matter what the polluting effects to that arroyo on the 
downstream waters when it floods?
    Mr. Schiff. Well, it is not so much, Senator Whitehouse, 
what I am suggesting.
    Senator Whitehouse. But it is your testimony, so I am 
trying to clarify it. So it is exactly what you are suggesting.
    Mr. Schiff. Well, what I meant to say, Senator Whitehouse, 
is that it is not my position so much as it is Justice 
Kennedy's position in the Rapanos case, where he said that 
there are some tributaries that, because of the quality or 
quantity of their flow is so small, that it is not in the 
appropriate----
    Senator Whitehouse. Correct. But one can have an arroyo 
that is on both sides of the Kennedy test. One could have one 
where there is a significant enough nexus that even though it 
is dry sometimes, it could still properly be regulated. Or is 
it your testimony today that no streambed that ever runs dry 
should be regulable under the Clean Water Act?
    Mr. Schiff. No, that is not certainly my testimony. But I 
would say that ultimately even the Corps, in the case that you 
mentioned from my written testimony, the Corps itself realized 
that this was an arroyo that fell on the other side of the 
line, so to speak, even under Justice Kennedy's test.
    Senator Whitehouse. Good. OK. I agree with you, they could 
be regulable or not, depending on local conditions and what the 
actual factual circumstances there on the ground are.
    Let me make a concluding point in my last 30 seconds. One 
is that people who are downstream of manure lagoons or heavily 
pesticide-laden farmland, or extensive use of fertilizer very 
often experience really significant effects when that runs off 
and hits the waterways that they love; whether they want to 
protect the insects that the fish feed on or whether they just 
want to have a clean stream going by their children's backyard, 
I do think that they have an interest in that we should 
protect.
    And the second point is that I think that there is a 
difference we should reflect between, particularly in a large 
organization, bad bureaucracy that creates a problem by not 
being helpful and responsive to individual applicants versus an 
underlying bad statute. And I think that is an important 
distinction for us to bear in mind.
    Ms. Wilkinson, I am sorry that you had a horrible 
experience, and I gather it continues.
    Senator Sullivan. Chairman Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman. I want to put a 
statement in the record that I didn't want to give in the 
beginning.
    Senator Sullivan. Without objection.
    [The prepared statement of Senator Inhofe follows:]

                  Statement of Hon. James M. Inhofe, 
                U.S. Senator from the State of Oklahoma

    I want to thank Senator Sullivan for holding this very 
important hearing. This committee has conducted extensive 
oversight of both the development and the implications of the 
new Waters of the United States--or WOTUS--rule. On behalf of 
Oklahomans and farmers and property owners across the United 
States, I was very relieved when the 6th Circuit Court of 
Appeals issued a stay on October 9, 2015, that prevented this 
rule from going into effect.
    However, I have heard concerns that the Corps and EPA are 
continuing to expand Federal control over land and water 
without any change in the statute or regulations.
    This hearing validates those concerns with concrete 
examples of how the Corps and EPA are already implementing the 
expanded Federal control that they are trying to codify in the 
WOTUS rule. The examples presented by these witnesses are not 
hypothetical. They are based on the experiences of farmers, 
developers, and wetlands experts.
    The WOTUS rule allows use of remote sensing and aerial 
photographs to assert Federal control over dry land. The 
testimony presented today demonstrates that the Corps is 
already regulating land based on information from these tools, 
even when there is no on-the-ground evidence of a wetland or 
water.
    The WOTUS rule allows use of water that is below the 
surface of the land to assert Federal control. The testimony 
presented today demonstrates that the Corps is already claiming 
that groundwater and even water in soil creates Federal 
jurisdiction.
    The WOTUS rule erodes ordinary farming exemptions with its 
broad definition of tributary. The testimony presented today 
demonstrates that Federal officials are claiming authority over 
farming activities even on land that has no streams and no 
wetlands. As far as EPA and the Corps are concerned all plowing 
is regulated, and the farming exemptions no longer exist.
    This testimony is tremendously important because EPA has 
tried to convince Members of Congress that its new rule does 
not expand Federal jurisdiction, and exemptions for farmers 
will remain.
    In fact, as our witnesses today explain, EPA's and the 
Corps' claim of Federal control over land and water has 
expanded significantly over the last several years, and the 
WOTUS rule would codify that expansion.
    I don't know which is more shocking:
     Ms. Wilkinson's testimony about how the buildable acres 
of her company's property have shrunk from 144.6 acres down to 
6--with no change in the law,
     Mr. Parrish's testimony that the Corps is regulating 
farmland based on light sensing radar and aerial photographs 
and then refusing to share these documents with the landowner, 
claiming that they are classified, or
     Mr. Schiff's testimony about how Corps districts are 
issuing Regional Supplements to change the definition of a 
wetland without going through notice and comment rulemaking.
    I will do everything within my power to expose these abuses 
so my colleagues--including the seven Senators who wrote a 
letter to EPA instead of voting for 
S. 1140--are no longer fooled by EPA's assurances. Working 
together, we can stop this Federal overreach.

    Senator Inhofe. Mr. Parrish, do you know Tom Buchanan from 
Oklahoma, who is the Farm Bureau President there?
    Mr. Parrish. Yes, sir.
    Senator Inhofe. He testified before this committee just a 
few weeks ago, sitting in the same chair where you are now. He 
was really quite outspoken. He had contended for a long period 
of time that of all the problems that farmers and ranchers in 
the State of Oklahoma, and he contended outside also, was 
nothing that is really found in the agriculture bill, but was 
overregulation by the EPA and specifically the WOTUS bill. Do 
you agree with Tom Buchanan?
    Mr. Parrish. I do, sir.
    Senator Inhofe. He was really quite emotional about it, and 
it is one that we are all concerned about. The last time 
Secretary Darcy testified before this committee I specifically 
asked her why she was ignoring the language in the energy and 
water appropriation bills that says the Corps cannot require a 
permit for ordinary farming activity, and she claimed that they 
were not doing that now.
    Do you think they are doing that now? Do you have an 
example?
    Mr. Parrish. Yes. We believe that they are doing that now.
    Senator Inhofe. Well, you know, one of the things that they 
say, I am not sure how formal this is, but I have heard the 
Corps and the EPA claim jurisdiction if a farmer wants to 
change just from grazing to growing hay, or from rice farming 
or to walnuts or something else. Have you heard that?
    Mr. Parrish. I have, sir, and I keep hearing that from my 
members. If the Chairman would like even more information, Ms. 
Gallaway here has actually seen on-the-ground results of that.
    Senator Inhofe. Mr. Chairman, I would like to ask 
permission for her to join, without objection, to respond to 
that question.
    Senator Sullivan. Without objection, Ms. Gallaway, you are 
welcome to join the panelists for additional expertise and 
information that you want to provide.
    Ms. Gallaway. Thank you. Yes, it is my experience on the 
ground. I am a senior regulatory biologist, work mainly in 
northern California, and my main role is to help farmers, a 
variety of clients, public works, cities and States, navigate 
the Clean Water Act process.
    Lately, it has been my experience that the Army Corps of 
Engineers has considered changing from one crop to another a 
land use change, and when you incur a land use change, that 
change becomes under their jurisdiction. For example, a rice 
farmer going from rice to walnuts, the Corps considers that a 
land use change and has submitted letters of inquiry notifying 
my clients that they are under investigation for potential 
violations to the Clean Water Act. These land use changes they 
consider from temporary to permanent crops now fall under their 
jurisdiction, and they are requesting farmers to go consult 
with them before they change crops.
    Senator Inhofe. OK, now, that is interesting. You are 
saying they actually have a written communication to that 
effect?
    Ms. Gallaway. Several.
    Senator Inhofe. All right. I would like to ask if you would 
give this committee some of the copies of that, where they are 
actually making that statement. Would you do that for us?
    Ms. Gallaway. I would be happy to.
    Senator Inhofe. All right.
    Last, Mr. Schiff, you referred to this, so I direct this to 
either Ms. Gallaway or Mr. Parrish or Ms. Wilkinson, that the 
WOTUS rule has been stayed by the Second Circuit Court of 
Appeals. So that means that we are still operating under the 
law; nothing has changed. Now, despite this, are you seeing a 
Federal expansion of Federal jurisdiction in on-the-ground 
activities of the EPA and the Corps of Engineers?
    Mr. Schiff, you already mentioned that, but how about you, 
Ms. Wilkinson?
    Ms. Wilkinson. Thank you, Senator Inhofe. It has been our 
experience that each time the rules are further modified or 
clarified, that this results on on-the-ground increase in 
jurisdictional impacts. We have had it happen several times now 
on our property, since this has been going on for so long. I 
would also say that these changing regulations just make it so 
difficult for a small business to play for the future or to run 
their business when the interpretations are constantly changing 
and expanding.
    Senator Inhofe. Any comment on that?
    Ms. Gallaway. I would like to echo Ms. Wilkinson. That is 
what I see on a daily basis interacting with the Corps, is each 
regulator has a different interpretation of what is and what 
isn't waters of the United States, and that creates a lot of 
confusion on the ground.
    Senator Inhofe. Well, let me just, in my final few seconds 
here, remind this panel up here that they tried to do this 
through legislation 6 years ago. That was an effort. In fact, 
it was Senators Feingold and Oberstar. And not only did they 
lose their legislation, they lost their careers, too, at the 
same time. So this is an issue that has been there for a long 
time. It is very typical of things that are not being able to 
be done through legislation are now trying to be done through 
regulation, and that, I believe, is what we are experiencing 
now.
    Thank you, Mr. Chairman.
    Senator Sullivan. Thank you, Chairman Inhofe.
    Senator Rounds.
    Senator Rounds. Thank you, Mr. Chairman.
    Mr. Parrish, in your testimony you have identified numerous 
examples of the Army Corps implementing the waters of the U.S. 
rule despite the nationwide stay. Because of this 
implementation, farmers are losing the ability to manage their 
land and utilize it in the best way possible. Can you explain 
the impact of this early implementation of the WOTUS rule and 
what it could have in terms of an impact on ag production in 
the United States?
    Mr. Parrish. From a global perspective, we saw a shift in 
the EPA and the Corps exerting jurisdiction back about 3 years. 
What we are seeing is not just them having an impact on the 
practices that farmers use; we are seeing an actual impact on 
the way farmers can use their land and actually prohibitions on 
the way that they propose to use their land. They do everything 
possible, in a lot of cases, to try to avoid WOTUS or any 
impacts to WOTUS. And what we are seeing here are things that 
are going to have ripple effects throughout the agricultural 
economy, not only impacting farmers and ranchers, but impacting 
the quality and the abundance of our food supply.
    Senator Rounds. Mr. Schiff, today we have heard multiple 
examples of the Army Corps implementing the WOTUS rule, nearly 
to the point where the property that is subject to the 
permitting loses its value. When ag land is subject to 
burdensome and unreasonable permitting requirements based on 
incomplete information or the illegal implementation of 
regulations, landowners use the ability to cultivate and 
properly manage their land, which essentially prohibits farmers 
and ranchers from using the land which they rightfully own.
    Would you consider this illegal implementation of the WOTUS 
rule a regulatory taking by the Army Corps of Engineers? And, 
if so, what recourse do the property owners have to prevent the 
Army Corps from devaluing their property to the point that it 
becomes practically unsaleable?
    Mr. Schiff. Thank you, Senator Rounds, for that question. I 
do believe that in many of these instances there would be a 
regulatory taking. The idea is that the Constitution says that 
the Government cannot take your property for public use without 
just compensation. And the Supreme Court has made clear that 
includes in cases where, through environmental or other 
regulation, you can no longer do anything with your property, 
and therefore no longer have any value left. And oftentimes, 
with respect to the implementation of the Clean Water Act, that 
is the result.
    One big obstacle that property owners have, though, to 
vindicating their property rights when they are told they can't 
use it and they seek compensation is the general rule that one 
cannot seek compensation until one has first applied for a 
permit. Unfortunately, Federal agencies, including the Army 
Corps, oftentimes know this and will drag out the permitting 
process in order to prevent a claim from being ripened, or what 
they may do, they may very well recognize that just the 
permitting process itself can oftentimes cost more than the 
value of the property in question, so essentially it gives a 
landowner no effective remedy.
    Senator Rounds. Mr. Parrish or Ms. Gallaway, would you like 
to comment on that?
    Ms. Gallaway. Yes, I agree. I mean, just the cost of 
getting a permit, a nationwide 40 permit in California is close 
to $40,000, and that is just with a half-acre or 300 linear 
feet of fill. So, if you exceed that, you are at an individual 
permit. The cost of that in California is $350,000. Those costs 
do not include mitigation, which can also be $300,000, $400,000 
an acre.
    Senator Rounds. I think the Ranking Member has brought up 
something which I think is important, and that is what we have 
to begin with is a statute, and I don't think any of us 
disagree with the statute itself. I think the challenge for us 
is whether or not the implementation of the statute within 
either the existing language of rules prior to the 
implementation of WOTUS are appropriate or if they are so 
ambiguous that we literally need to upgrade them, or if the 
WOTUS would have been a better alternative, which I don't think 
it was; I think they went way beyond that.
    But I do think that we have to get back to, as the Ranking 
Member suggested, a more clear and definitive definition and 
understanding of what the statute really implied in the first 
place. And if we want to change it to the point where it looks 
something like what WOTUS did, I think they have to come back 
to Congress to actually request permission to expand it over 
and above what the statute provided for in the first place.
    With that, Mr. Chairman, thank you.
    Senator Sullivan. Thank you, Senator Rounds.
    Senator Markey.
    Senator Markey. Thank you, Mr. Chairman, very much.
    The Clean Water Act is an American success story. We don't 
talk about the Cuyahoga River being on fire anymore. We don't 
talk about the Charles River as dirty water up in Boston; it is 
a big success story. Summertime in the Bay State is now filled 
with students sailing on the Charles and beach days at Revere 
Beach, which is the first public beach in America. These are 
success stories of the Clean Water Act.
    But the next chapter in protecting our Nation's waterways 
is still not complete. There is still work to be done. When the 
Environmental Protection Agency and the Army Corps of Engineers 
finalized the recent Clean Water Rule, they did so to clarify 
longstanding regulatory uncertainty. In fact, many groups on 
both sides of the aisle asked for clarification. And the 
foundation of the rule was based on the latest scientific 
developments.
    Over 1,200 scientific studies were reviewed. The conclusion 
was that upstream wetlands and small streams are vital to 
health of rivers and lakes downstream. The outreach from EPA 
and the Army Corps was tremendous and demonstrated they 
understood seriousness and importance that had to attach to 
this rule. More than 400 stakeholder group meetings were held 
across the country. More than 1 million public comments were 
reviewed after an extended comment period.
    The uncertainty about the Clean Water Rule is not good for 
business, not good for our communities, not good for our 
environment. We have a choice in our story's next chapter. We 
can acknowledge the interconnectedness of our Nation's 
waterways and the importance of ensuring clean water or allow 
regulatory uncertainty to endanger our Nation's waterways and 
the drinking water for one-third of Americans.
    I prefer the chapter with clarity, with clean water, and 
with a healthy future.
    Mr. Buzbee, there have been questions at the start of this 
hearing about dry areas being regulated. Perhaps you can talk 
legally about how a seemingly dry area can be important to 
protect under the Clean Water Rule.
    Mr. Buzbee. Thank you, Senator. In the Rapanos case, 
Justice Scalia wrote a plurality opinion were wanted and called 
for permanent surface flows and connections but never received 
a majority vote in support of that. Justice Kennedy's 
significant nexus opinion, which is now viewed as the governing 
one, explicitly calls for attention to a waters functioning. 
And if you look at the science, and especially the science in 
the connectivity report, areas like arroyos and other seemingly 
dry features can--during seasonal rains, especially heavy 
flows--can be critically important to carrying pollutants 
downstream and impairing water uses that are of great 
importance; also helping to control, sometimes, flooding. So 
what seems to be dry can in fact be very important water for 
much of this country.
    Senator Markey. Do you feel, Mr. Buzbee, that the 
regulatory certainty in the definition of waters of the United 
States would help to resolve some of the jurisdictional 
confusions we have heard about today?
    Mr. Buzbee. Yes, I think it would help a great deal. The 
regulation, as written, ties its lines and strengthens its 
exclusions, but with lots of reference to the connectivity 
report and peer-reviewed science.
    Senator Markey. OK. So given the contradictory, conflicting 
court decisions, why is this recent Clean Water Rule an 
appropriate response to those court cases?
    Mr. Buzbee. That is a good question. And basically it is if 
you look at the three major Supreme Court cases, one case 
unanimously said there was room for rulemaking under the Clean 
Water Act and defining what is water of the United States. The 
next case, the SWANCC case, avoided a constitutional question 
and also didn't question that possibility, and then six 
justices in the Rapanos case either applauded regulation or 
called for regulation to bring greater clarity.
    Senator Markey. So they are begging for clarification.
    Mr. Buzbee. Yes.
    Senator Markey. Please help us. Please don't leave this so 
confusing. And that is in fact what has been happening.
    Mr. Kovarovics, in your written testimony you discuss 
exclusions. Why do you feel the EPA and the Army Corps 
specifically listed exclusions in the new Clean Water Rule?
    Mr. Kovarovics. I think, again, as Professor Buzbee alluded 
to, this was designed to provide more clarity, and as you were 
suggesting, more clarity about what is in and what is out, and 
I would defer to the professor about the legality of that, but 
I think, you know, what we have heard about so long in this 
process is some more clarity, some more bright lines, and that 
is what I believe the agencies attempted to do.
    Senator Markey. Thank you.
    Thank you, Mr. Chairman.
    Senator Sullivan. Thank you, Senator Markey.
    I am going to ask Ms. Gallaway if you can just take your 
seat again in the audience, and if there are other questions, 
and I might have one, we will have you come up again. So thank 
you very much for doing that.
    Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    As we look into the Waters of the U.S. rule, I can tell you 
in Nebraska, Nebraskans from across the State understand that 
these are rules that are providing an agency with so much 
overreach that every Nebraskan's life is affected. It is not 
just what I call the usual suspects, people in agriculture; it 
is every taxpayer who has to pay more because of these rules in 
order to construct or to maintain a road; it is homebuilders 
who continue to see regulations increased on the cost of a new 
home, which is an American dream that is not out of reach for 
most of us. So when we talk about waters of the U.S., we need 
to realize the negative impact it has on all citizens across 
this country.
    Mr. Parrish, I would ask you, in your testimony you discuss 
the Corps' use of classified aerial photographs to evaluate 
changes in agricultural activities in relation to historical 
jurisdictional waters. What does that mean, and why are these 
photographs classified?
    Mr. Parrish. Thank you, Senator, for that question. 
Classified and proprietary. It is pretty amazing to me that the 
Government, our Government, a Government that is supposed to 
provide clarity, can use information that the public has no 
access to it. And it is more than just having access to. We are 
talking about, from a clarity standpoint, Professor Buzbee, 
allowing our Federal Government to declare something 
jurisdictional the naked eye cannot identify. That is a 
problem.
    Senator Fischer. That doesn't really help with certainty, 
does it?
    Mr. Parrish. Absolutely not.
    Senator Fischer. Thank you.
    I would ask Ms. Gallaway, if I could, Mr. Chairman, has she 
requested access to those photographs.
    Senator Whitehouse. Mr. Chairman, we have an order in this 
committee, and we have witnesses who are identified in advance. 
This was not a witness who was identified in advance. I think 
we have given the majority an enormous amount of leeway with a 
person who has been sort of plucked spontaneously from the 
audience, and I think that should probably run its course about 
now.
    Senator Fischer. I was just following other members, I 
would answer to the Ranking Member.
    Senator Whitehouse. I appreciate it, but I think we have 
been out of order for quite a while on this subject.
    Senator Sullivan. The Chairman would ask unanimous consent 
to allow Ms. Gallaway.
    Senator Whitehouse. To answer his questions, which she did, 
not to refer a witness for all purposes----
    Senator Sullivan. And if Senator Fischer wants to do the 
same----
    Senator Whitehouse. Then I will object.
    Senator Sullivan. OK.
    Senator Fischer. Thank you.
    As a follow up, Mr. Parrish, if the Corps can selectively 
enforce section 404 permits based on that historical ordinary 
high water marks in California, can they do it in Nebraska?
    Mr. Parrish. Senator Fischer, we are very afraid that, 
based on the way we have changed our landscape, if the EPA and 
the Corps can look back into some kind of ethos out in whatever 
and determine that we have made mistakes as a society, and go 
back and start fining individual landowners with criminal and 
civil penalties, that is a problem. It is a problem because it 
is not only going to be a problem in California; we are already 
seeing problems in Louisiana and in Georgia, here in Virginia. 
We are seeing that all across the country. So, yes, whether you 
are talking shallow groundwater connections, whether you are 
talking invisible, secret science or secret data and maps, it 
is going to be a problem in Nebraska, yes, ma'am.
    Senator Fischer. I would agree.
    On this committee, and especially in this subcommittee, we 
focus on the impacts of these overreaching regulations, and it 
is my understanding that even though the courts have ordered a 
stay on WOTUS, Federal agencies are still implementing that 
rule. If the EPA and the Corps succeed in this regulation, what 
do you think the impacts are going to be on our rural economies 
in this country and on our Nation's food supply?
    Mr. Parrish. Senator Fischer, when we look at what the 
impacts are, the regulatory footprint of this regulation and 
what it means, I mean, technically you are talking about trying 
to regulate navigable waters. EPA says they are providing 
clarity. We think we see 4-, 5-, 10-fold increase in the 
jurisdiction as a result of this regulation into things that 
the public has no real understanding of. We all support clean 
water. And most of the support for this regulation comes from 
people that clicked on the I Support Clean Water icon, and they 
never read a word of this proposal.
    Senator Fischer. Well, we all support clean water.
    Mr. Parrish. Absolutely.
    Senator Fischer. We support the Clean Water Act. We make 
that clear in this committee and on the floor and in our States 
all the time.
    I would ask Ms. Wilkinson to follow up. In March 2015 I 
chaired an EPW Committee hearing in Nebraska on the possible 
impacts at that time on waters of the U.S., and at the hearing 
we did have that local homebuilder who spoke about what I 
thought was a very startling statistic, and that was that 25 
percent of the cost of a new home is now due to regulations. 
Would you agree that regulations are going to continue to go up 
as a direct result of the rules and regulations under Waters of 
the U.S.? And what impact is that going to have?
    Ms. Wilkinson. Yes, Senator, I would. And it creates such 
extensive costs that become a hidden burden. Most homeowners 
don't realize what they are spending their money on when they 
purchase a home or are unable to purchase a home due to that. 
So our costs have certainly been tremendous because we have 
just been in this changing environment and with an increased 
assertion of jurisdiction.
    Senator Fischer. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Sullivan. Thank you, Senator Fischer.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman. I want to thank 
all of the witnesses. I was here at the beginning of the 
hearing, and I listened to the Chairman and the Ranking Member 
both talk about the importance of clean water, and I thought I 
just really wanted to make a couple points, and I would be glad 
to get response.
    It is one thing to be for clean water. It is another thing 
to recognize where we were before we had the Clean Water Act, 
when rivers caught fire, when bodies of water were not safe to 
be near. I was involved in the development of the Chesapeake 
Bay Partnership Program. It started in Maryland under Governor 
Hughes when I was in the State legislature. We got the 
surrounding States to join us.
    It was never a partisan issue; we always had Democrats and 
Republicans working together. We not only had governmental 
partners; we had private sector partners. We had partners from 
States that did not border the Chesapeake Bay; Pennsylvania, 
New York. The headwaters, the waters that come into the 
Chesapeake Bay come through those areas; and yes, the watershed 
areas, the wetlands are all critically important to the 
Chesapeake Bay.
    So I know what it took to get everyone together and dealing 
with it, and what Senator Whitehouse said is absolutely 
accurate. Before the two Supreme Court decisions, I don't think 
the enforcement of the Clean Water Act was controversial. I 
didn't hear from stakeholders that they thought there was a 
real problem the way that the Clean Water Act was being 
enforced. But then we had two Supreme Court decisions, and 
those two Supreme Court decisions basically brought uncertainty 
as to what is going to be regulated and what is not going to be 
regulated, and we have been dealing with that for a long time.
    The Supreme Court decisions was really a challenge to 
Congress to clarify, to make sure that we had it moving 
forward, and I can tell you, I tried. I remember introducing 
legislation and working on legislation and trying to get 
Democrats and Republicans, as we did with the Clean Water Act, 
to come together, and the premise was simple: let's just get us 
back to where we were before the Supreme Court decisions, 
because that is where most stakeholders said they were 
comfortable. And we couldn't get congressional action.
    And now you have the Obama administration with a rule that 
tries to take us to where we were before the Supreme Court 
decisions, where a lot of things are said about it that just 
aren't true, and we are trying to get predictability. And one 
thing I hear from my stakeholders: let us know what the rules 
are. Let us have predictability. We will deal with it. As long 
as it is rational, we can deal with the rules. What we can't 
deal with is the uncertainty as to whether something is 
regulated or not.
    So I am somewhat perplexed, I really mean this, as to why 
there isn't more cooperation to try to give direction to what 
is regulated and what is not. We have exemptions that have been 
in law. The farming activities, regular farming activities are 
protected. That is not what is aimed at the Clean Water Act. 
Standing bodies of water that do not affect the clean water 
issues are not regulated.
    So why isn't there more of a sense to get something done? 
Why is it always we are going to be opposed to this? I haven't 
really heard of an effort to try to get where we were before 
the Supreme Court cases, where I thought most stakeholders 
thought we should be.
    So what am I saying that doesn't make sense? Nothing. I 
liked your answer.
    Mr. Chairman, I will just yield back the balance of my 
time. I think I made my point. And I am going to continue to 
fight on behalf of the people of Maryland and the people of 
this country who recognize the importance of clean water, the 
number of people whose drinking water comes from these water 
supplies in this country and my State, the people who depend 
upon clean water for their commercial businesses, the people 
who depend upon clean water for recreation, the people who 
depend upon clean water for public health. They want me to 
fight to make sure that we don't return to the days we had 
before the Clean Water Act, and I am going to do everything I 
can to make sure that we protect America's public health.
    Senator Sullivan. Thank you, Senator Cardin.
    I think the Ranking Member and I are going to wrap up with 
a few additional questions, so I appreciate the witnesses here.
    I wanted to go back to Mr. Parrish, Mr. Schiff. In your 
experience, back to farming activities, do the EPA and the 
Corps now claim that ordinary farming activities like plowing 
constitute a discharge or a pollutant?
    Mr. Parrish. Yes, sir. We are seeing the Corps explicitly 
regulate activities now that 3 or 4 years ago they would not. 
And again, we think the statute is clear. We think the 
congressionally authorized exemptions are clear.
    But what you have now is not only is the Corps parsing what 
a farm exemption is, they are parsing what a ranching exemption 
is, what a farm exemption is. They are trying to parse out 
specifically any changes in use. That is tantamount to land use 
and the control of land use at the local level.
    We see big problems in that because, just for instance, in 
California alone there has been a drought. Farmers sometimes 
need to shift from crops that use a lot of water to crops that 
don't use so much water. If they can't make those kinds of 
decisions without seeking a permit that takes 2 or more years 
to complete, there are some real problems.
    Senator Sullivan. And how long have you been farming?
    Mr. Parrish. Sir, I grew up in a farm, and I started my 
agricultural career back in the 1980s.
    Senator Sullivan. And so that has not always been the case, 
that kind of requirement for Federal permits when you are 
shifting crops or shifting activities on your farmland?
    Mr. Parrish. That is correct.
    Senator Sullivan. So you said you have started to see that 
kick in about 3 years ago?
    Mr. Parrish. Actually, we saw a more intense focus on 
agriculture after the economy had the big downturn in 2008 and 
2009. My friends over here in the homebuilding industry 
ultimately stopped; they were in a depression. They stopped 
building. And we have seen the Corps turn their attention to 
agricultural uses, agricultural land, and we have seen more 
focus on agriculture and land use activities since that time.
    Senator Sullivan. And let me ask you to follow up. Another 
question that you talked about is that in the WOTUS rule there 
is an assertion that the Corps can identify a stream complete, 
bed, bank, ordinary high water mark from an aerial photograph 
and that the Corps does not need to do a site visit to confirm 
where the actual water is present on the property.
    Now, in contrast, current Corps guidance requires a site 
visit, it is mandatory. So are you seeing them implement that 
aspect of the WOTUS rule, where they are just using aerial 
photography to make that determination, which, remember, that 
rule has been stayed. Without that rule, they would have no 
authority to do that. Are you seeing them do that right now?
    Mr. Parrish. Senator Sullivan, I will refer you to Ms. 
Gallaway's testimony, and in her testimony she explicitly says 
that she has collected on-the-ground data and presented that to 
the Corps and had it rejected based on information that the 
Corps had, aerial photos, imagery that they would not even 
share with the permittee.
    Senator Sullivan. Let me turn to the legal issues that I 
think are very important, very vexing. To Senator Cardin's 
statement, we did pass out of this Committee S. 1140, which 
would have provided very much detail, very much certainty on 
the WOTUS rule, and when we brought it to the Senate floor it 
was filibustered on the ability to proceed. So just to be 
clear, this committee, the Senate, we have tried to clarify 
this rule, and it has been stymied. So I think that that needs 
to be stated.
    Let me just ask Ms. Wilkinson and Mr. Schiff, can you help 
us understand how a so-called regional supplement can actually 
change the definition of what a wetland is either in Virginia 
or even Alaska, and how that, again, raises the issue of 
uncertainty that you have focused on in your testimony?
    Ms. Wilkinson. Yes. Thank you, Senator. Specifically, the 
supplement that applies to our area, I first want you to 
understand is very extensive. The supplement itself is one and 
a half times the 1987 manual. So these are extensive changes 
that are in the supplement.
    Some of the key changes is it changed the wetland hydrology 
criteria to reduce the time the water must be within 12 inches 
of the surface, which is what the Corps calls the surface, not 
where you place your foot, from 30 to 14 days. And it also 
redefined the growing season from starting at March 15th to 
essentially year-round based on indicators such as bud break. 
And it expanded, this is very important, the list of primary 
and secondary indicators that can be used in certain 
circumstances to identify a wetland.
    Very specifically, on our property, we had a Corps-
confirmed delineation on our reduced development in 2007, 
before the implementation of the regional supplement, and they 
confirmed 30 acres of wetland impacts. They have done a new 
confirmation of the wetland delineation since the regional 
supplement and said we had 47 acres of wetland impact. That is 
a 57 percent increase. So that is the specific effect of the 
regional supplement on our property.
    Senator Sullivan. Thank you.
    Professor Buzbee, I wanted to ask just a few legal 
questions, very basic. If the EPA is looking at its 
jurisdictional reach of the Clean Water Act, can it expand its 
own jurisdiction? Can it say, well, we know that we have, say, 
20,000 square miles of wetlands; we are going to expand it with 
a broader definition? Or is that something that only the 
Congress can do in terms of expansion of its jurisdictional 
reach?
    Mr. Buzbee. The statute would govern what the agencies can 
do, the Army Corps and EPA, but the Army Corps and EPA need to 
look at the best science and respond to that. So as science 
changes and develops, whether it is Chesapeake hydrology or 
understanding of Alaska, the agencies have an obligation to 
look again at that best information, and that may lead to 
adjustments one way or the other.
    Senator Sullivan. So one thing, and Senator Whitehouse 
mentioned at the outset, he mentioned that even under the new 
rule the EPA has admitted that it is going to expand its 
jurisdiction under the Clean Water Act by up to 5 percent, 
which doesn't sound like a lot. We were running the numbers. 
Five percent of the clean water jurisdiction in Alaska would be 
expansion of 15,000 square miles. That is 10 times the size of 
Rhode Island.
    Senator Whitehouse. Thanks so much for pointing that out, 
by the way.
    [Laughter.]
    Senator Sullivan. Sorry. We have a lot of fun with that 
issue.
    [Laughter.]
    Senator Sullivan. It is a serious point, though. An even 5 
percent expansion of its own jurisdiction, its self-declared 
expansion in certain States can be an enormous expansion. Don't 
they need the legal authority to undertake that? I mean, the 
EPA can't expand its own jurisdictional reach, can they?
    Mr. Buzbee. Two things. One is the legal standard is the 
same, but it is important to understand that science and 
hydrological science has improved vastly in recent years, and 
if you actually look at litigation under the Clean Water Act, 
people will rely on the best science all the time; and this 
committee and other committees in the past in the Senate have 
called for agencies to rely on the best peer-reviewed science. 
That can lead to changes in what an agency can justify. So that 
is not legally grabbing power; that is following what the 
science leads to.
    But also, importantly, my understanding is slightly 
different, that if you go to SWANCC and the pre-SWANCC period, 
that the level--the amount of water protected was substantially 
more than now. Then it dropped back as far as actual assertions 
of jurisdiction dropped back during the uncertain period. The 
Waters of the United States would restore I thought it was 3 to 
5 percent of the jurisdiction, but that it would still be less 
than it stood during the Reagan administration.
    Senator Sullivan. Senator Barrasso.
    Senator Barrasso. Thank you very much, Mr. Chairman.
    Mr. Parrish, EPA spent an enormous amount of time and 
resources defending their Waters of the U.S. proposal. Most, if 
not all, of the resources were focused on communications 
outside of the Federal Register and outside the formal 
rulemaking process to the point that they used social media to 
do more than just educate the public; they did what the GAO 
called ``covert propaganda.'' Covert propaganda. So do you 
think the EPA had an open mind, or even fairly evaluated public 
comments in the rulemaking process? And how do you think that 
this agency's social media campaign added confusion to the 
process?
    Mr. Parrish. Senator Barrasso, that is a great question. 
What we experienced during this rulemaking was unlike anything 
in my 30 years of regulatory effort that I have ever witnessed. 
From day one, the Agency campaigned to enact this rule. We 
think they used very, very carefully worded talking points that 
were true but misleading. They mislead the public, they mislead 
our members, they confused the members of the Farm Bureau as to 
the exact reach of this regulatory proposal.
    And not only did they do that; they used social media to do 
outreach to the public, and they did it during the rulemaking 
process, when they are supposed to be open minded and listen to 
what the stakeholders had to say about their proposal. Now only 
did they do it during the rulemaking process; they did it after 
the rulemaking process closed. And the only reason they would 
do that, the only reason they would do that is because your 
legislation, S. 1140, was before this Congress, and they were 
doing it to try to influence the public and to lobby the 
public, to lobby against your legislation.
    Senator Barrasso. So following up on that, both Mr. Parrish 
and Mr. Schiff, you take a look at your written testimony, it 
clearly documents the EPA and the Corps clearly attempted to 
expand what is a water of the United States, despite the 
current court stay says about the rule. I think it is important 
because, as you know, I introduced the legislation you just 
referred to; it was bipartisan, the so-called Federal Water 
Quality Protection Act. It was to repeal the rule and have the 
EPA go back and draft a new more tailored rule that basically 
protects families and farmers and small business owners.
    But rather than vote for the bill, we had 11 Senators who 
had expressed concerns with the Waters of the U.S. rule. They 
chose to write this letter rather than to vote against the 
legislation, and instead they wrote about their concerns to the 
EPA and the Corps. The letter stated, ``We call on the EPA and 
the Army Corps of Engineers to provide clear and concise 
implementation guidance to ensure that the rule is effectively 
and consistently interpreted.''
    They went on to say, ``Farmers, ranchers, water utilities, 
local governments and contractors deserve this clarity and 
certainty.'' They said, ``Should the EPA not provide this 
clarity or enforce this rule in a way that erodes traditional 
exemptions, then we reserve the right to support efforts in the 
future to revise the rule.''
    So, in your opinion, both of you, has the Corps and the EPA 
been eroding traditional exemptions since this rule has been 
issued? And how clear and consistent has the Corps and the EPA 
been in their decisionmaking since the rule has been issued?
    Mr. Parrish. Senator Barrasso, what we have seen is the 
agencies eroding the exemptions. We have seen them intrusively 
trying to not only influence the activities that farmers 
conduct on their land; they try to influence the way the 
farmers use their land, flat out. With regard to guidance, it 
is pure speculation on my part, but I would probably take a bet 
that EPA and the Corps will not do implementation guidance. 
They do not plan to; they have stated such. So we don't expect 
implementation guidance.
    No. 2, this rule, the specifics of this rule and what 
expands it, allowing the agencies to use tools that the human 
eye can't see as affirmative evidence that they can regulate a 
bed bank and ordinary high water mark, that cannot be changed 
by guidance. That is an expansion, it is a significant 
expansion, and the agencies have not been transparent about 
that. Thank you.
    Senator Barrasso. Mr. Schiff, would you like to weigh in on 
this?
    Mr. Schiff. I would just add that it shouldn't be 
surprising that we are seeing such a dramatic expansion under 
the WOTUS rule, in part because you look at the exceptions. Why 
would there be a need to call out an exception for the 
regulation of puddles or ornamental fixtures? The only reason 
for those exceptions is because, otherwise, legitimately, the 
scope of the rule would cover things like that. So it is not 
surprising, unfortunately, that the agencies have continued 
through the WOTUS rule to expand their authority.
    Senator Barrasso. Thank you.
    Thank you, Mr. Chairman.
    Senator Sullivan. Thank you, Senator Barrasso, and thank 
you for your leadership on this issue. I just wish that your 
bill would have been able actually to have a vote on the bill 
because that is what we were trying to do, is bring certainty 
to this issue.
    Again, it was a bipartisan bill, and yet we couldn't get 
over a filibuster threshold by some of the members of this 
body, even though it was voted out of this committee. Some of 
the members of this committee voted for the bill, I believe. So 
the Senate has been trying to bring clarity to this issue 
because we are hearing you, we are hearing you, and we are 
hearing from the States.
    One final quick question. Professor Buzbee, Mr. Schiff, 
anyone else, why do you think 34 States have sued to stop the 
WOTUS rule? That is a pretty big number of U.S. States. I think 
it is also bipartisan.
    Mr. Schiff. I think, Mr. Chairman, one reason is an issue 
that we haven't touched upon a great deal this afternoon, and 
that is the federalism implications of the Clean Water Act as 
interpreted by EPA and the Army Corps. Nobody is against clean 
water, but the problem is that the agencies have converted the 
Clean Water Act, through the WOTUS rule, into a de facto land 
use ordinance for Federal agencies; and that has traditionally 
been an area that the States and local governments have been 
sovereign in, as opposed to the Federal Government. And I think 
that is what is motivating so many of the States to challenge 
the rule as a direct threat to their sovereignty.
    Senator Sullivan. Professor Buzbee.
    Mr. Buzbee. Yes. I am not sure that the number should be 
taken for all that it appears to be. What started happening now 
both in Supreme Court litigation and in regulatory matters is 
different leading actors in States are taking positions in 
different cases. So you can have environmental regulators 
taking one position and the State attorney general is taking 
another, and then Governors taking yet another. So my guess is, 
if you look at the number of who filed supportive comments and 
who criticized, the numbers are far more mixed than the number 
you provided would indicate.
    Senator Sullivan. Just for the record, I want to mention a 
lot of statements about the support for this rule, a million 
comments. Actually, the head of the Corps testified that only 2 
percent of those were substantive comments; 98 percent were 
form letters or e-mails that weren't substantive and may have 
been part of what Senator Barrasso was talking about, the EPA's 
social media attempt to get support for their own rule, which 
was deemed out of line by the GAO.
    Senator Whitehouse, I know you want to finish with some 
questions.
    Senator Whitehouse. Thank you. I just wanted to wrap up 
with a couple of things.
    First, Mr. Parrish, same question for the record. Any 
documents you have that support the proposition that a mere 
crop change is a regulable activity, I would love to see an 
example of that, or two if you have two examples of it.
    Mr. Parrish. We can do that. But you also need to 
understand, Senator, that the way in which the Corps enforces 
the Clean Water Act, they scare the dickens out of farmers. 
They threaten their ability to be an ongoing concern going 
forward. And we are not talking about big farmers; we are 
talking about farmers that farm 100 acres or less. And if you 
are talking hundreds of thousands of dollars to challenge the 
Agency, they pretty much have to give up the use of their 
property or the proposed use of their property and back away 
from it.
    But we will supply that.
    Senator Whitehouse. Let's start with just supplying me 
where a crop change was seen as a regulable event by itself.
    Also, you are not suggesting that LIDAR is not a credible 
means for mapping? We use LIDAR all the time for coastal 
mapping, for storm mapping, for FEMA mapping, for all sorts of 
things. You are comfortable that LIDAR is a legitimate 
technology, aren't you?
    Mr. Parrish. I am comfortable that the Government has 
access to it; the landowners don't. And the way in which the 
Government is using it----
    Senator Whitehouse. So your issue isn't with the LIDAR.
    Mr. Parrish [continuing]. Is they are using it in ways----
    Senator Whitehouse. Your issue isn't with the use of the 
LIDAR issue----
    Mr. Parrish. They are identifying the----
    Senator Whitehouse. Let me just ask my question, if you 
don't mind. Your issue is not with the use of the LIDAR; your 
issue is with the fact that the landowner doesn't have access 
to the information that the Government has generated through 
LIDAR.
    Mr. Parrish. I am taking issue with the fact that they are 
using it to identify features that you and I could not walk 
onto the landscape and identify with the naked eye.
    Senator Whitehouse. Like altitude?
    Mr. Parrish. That is a problem. That is a problem.
    Senator Whitehouse. Well, maybe we need to follow up on 
this.
    Mr. Parrish. If they are affirmatively defining, 
affirmatively using as evidence that information to regulate 
when the human eye cannot understand or detect it. That is a 
problem.
    Senator Whitehouse. But LIDAR measures altitude.
    Mr. Parrish. It is, I believe, you know, and these guys are 
the----
    Senator Whitehouse. LIDAR measures the distance.
    Mr. Parrish. I believe it is unconstitutionally vague.
    Senator Whitehouse. LIDAR, you think, on its own, is 
unconstitutionally vague?
    Mr. Parrish. Using that to define features that are 
regulated under the Clean Water Act, bring and carry criminal 
and civil penalties.
    Senator Whitehouse. So it would be OK under the FEMA, for 
coastal protection, but somehow not under the Clean Water Act?
    Mr. Parrish. Are you going to find people criminally and 
civilly liable as a result of that information? That would be 
the question. And we think that is outside of bounds.
    Senator Whitehouse. There are a whole variety of----
    Mr. Parrish. We think that is outside of the bounds of a 
clear regulatory program. There is nothing clear about that, 
Senator.
    Senator Whitehouse. So the Farm Bureau is opposed 
categorically to the use of LIDAR in Clean Water Act 
determinations.
    Mr. Parrish. We do not have policy on that, but there is a 
big problem.
    Senator Whitehouse. But that is your testimony. Got it. OK.
    Just last, throw the ball to Mr. Buzbee. There have been 
tons of questions to the agricultural interest and deregulatory 
interest witnesses and not so many to you, so if you would like 
to sort of clean up with, I will give you my last minute and 45 
seconds.
    Mr. Buzbee. Thank you, Senator. I guess the only thing I 
would say, several people made statements either in questions 
or witness statements stating that the Army Corps and EPA were 
effectively enforcing the Waters of the United States rule, the 
Clean Water rule, despite it being stayed, and I don't think 
there is any evidence of that, and I think it is based on a 
misunderstanding of how rules work.
    So I would just make one quick point about that, which is 
if an agency promulgates a final regulation, and it is put in 
the Code of Federal Regulations, that becomes binding on 
everyone; it becomes binding on the courts, it becomes binding 
on the regulator. And those who are regulated can rely on it to 
their benefit or to their detriment, but it becomes the binding 
law. And that is well established in decades and decades of 
Supreme Court law.
    In the absence of that rule, the agencies still need to 
undertake regulatory actions. You still have the Clean Water 
Act, you still have all of the existing regulations which now 
have not been amended, and you still have these three Supreme 
Court cases, and you still have the connectivity report, which 
is what it is, it is a report on science.
    So the regulators have been basing actions on all of the 
existing law and science, as they must do. There is nothing 
illegitimate about it; indeed, it is their obligation. And if 
they didn't do so, they would deserve sound criticism.
    Senator Whitehouse. And be sued.
    Mr. Buzbee. Yes. And the only other point I would say is I 
don't think anyone would argue in favor of agencies hiding the 
basis on which they act. If that is going on, then they deserve 
criticism. But that is different than the issue whether the 
Clean Water Act itself is misguided. And I don't know enough 
about the particular actions that are being claimed here, but 
that is a totally different problem.
    Senator Whitehouse. Understood.
    Thank you, Chairman.
    Senator Sullivan. Thank you.
    I want to thank the members again. I do want to ask 
unanimous consent that a letter from the National Association 
of Realtors and testimony from Mr. Merlin Martin of Martin 
Firms also be included in the record.
    Senator Whitehouse. Without objection.
    [The referenced testimony follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Sullivan. And the record will be open for 2 weeks 
to this hearing, so if there is any additional information that 
you think that this committee needs to see, please make sure 
you get it in.
    I want to thank the witnesses for their testimony.
    Mr. Parrish, I want to respond to your comments about 
Federal agencies that can scare the dickens out of farmers. I 
know that some of you continue to deal with the EPA and the 
Corps on a regular basis. My view is that the vast, vast 
majority of our Federal Government officials do their job 
honorably.
    But as your testimony indicated, some of you may be 
concerned about retribution for speaking out. You still have 
permits, unfortunately decades long in terms of the wait, and 
if you feel that a Federal employee has in any way treated you, 
any of the witnesses here, differently because you had the 
courage to bring your concerns to this subcommittee and share 
them with the U.S. Senate, first of all, that would be 
unconscionable, it would be illegal. We would certainly want 
you to inform me or my office if you feel that any Federal 
official is retaliating against you for providing this very 
important information to Congress at this hearing today.
    Again, I want to thank all the witnesses. This was a very 
informative hearing for all of us.
    This hearing is adjourned.
    [Whereupon, at 4:12 p.m. the subcommittee was adjourned.]

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