[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
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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
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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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