    [Senate Hearing 114-27]
    [From the U.S. Government Publishing Office]

                                                             S. Hrg. 114-27

                        LEGISLATIVE HEARING ON S. 1140,
                    THE FEDERAL WATER QUALITY PROTECTION ACT

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON FISHERIES, WATER,
                                  AND WILDLIFE

                                     OF THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 19, 2015

                                   __________

      Printed for the use of the Committee on Environment and Public Works

      [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

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

                                   __________

                           U.S. GOVERNMENT PUBLISHING OFFICE
    94-997 PDF                 WASHINGTON : 2015

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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                        ONE HUNDRED FOURTEENTH CONGRESS
                                 FIRST SESSION

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

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

                 Subcommittee on Fisheries, Water, and Wildlife

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

                                  ----------
                                                                       Page

                                  MAY 19, 2015
                               OPENING STATEMENTS

    Sullivan, Hon. Dan, U.S. Senator from the State of Alaska........     1
    Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     3
    Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
      Island.........................................................     4
    Boxer, Hon. Barbara, U.S. Senator from the State of California,
      prepared statement.............................................   109
    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma,
      prepared statement.............................................   151

                                   WITNESSES

    Metzger, Susan, Assistant Secretary, Kansas Department of
      Agriculture....................................................    41
        Prepared statement...........................................    43
        Response to an additional question from Senator Inhofe.......    45
    Pifher, Mark, Manager, Southern Delivery System, Colorado Springs
      Utilities, on behalf of the National Water Resources
      Association....................................................    46
        Prepared statement...........................................    48
        Responses to additional questions from Senator Inhofe........    56
    Pierce, Robert, Wetland Training Institute, Inc..................    58
        Prepared statement...........................................    60
        Response to an additional question from Senator Fischer......    76
    Parenteau, Patrick, Professor of Law, Senior Counsel,
      Environmental and Natural Resources Law Clinic, Vermont Law
      School.........................................................    83
        Prepared statement...........................................    85
        Responses to additional questions from:
            Senator Boxer............................................    93
            Senator Gillibrand.......................................    97
    Lemley, Andrew, Government Affairs Representative, New Belgium
      Brewing Company................................................   102
        Prepared statement...........................................   104
        Responses to additional questions from Senator Inhofe........   106

                              ADDITIONAL MATERIAL

    May 19, 2015, Statement for the Record from the National Stone,
      Sand & Gravel Association......................................   153
    May 19, 2015, letter from the Society for Freshwater Science.....   158
    May 20, 2015, letter from the American Chemistry Council.........   161
    S. 1140 Federal Water Quality Protection Act Summary.............   163
    Need for S. 1140 the ``Federal Water Quality Protection Act''....   165

     LEGISLATIVE HEARING ON S. 1140, THE FEDERAL WATER QUALITY PROTECTION
                                      ACT

                                  ----------

                             TUESDAY, MAY 19, 2015

                                   U.S. Senate,
             Committee on Environment and Public Works,
                Subcommittee on Fisheries, Water, and Wildlife,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:02 a.m. in
    room 406, Dirksen Senate Building, Hon. Dan Sullivan (chairman
    of the subcommittee) presiding.
        Present: Senators Sullivan, Barrasso, Capito, Boozman,
    Sessions, Fischer, Rounds, Whitehouse, Gillibrand, 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.
        Thank you to all of you for your attendance here this
    morning on an important bipartisan bill offered by my colleague
    Senator Barrasso.
        I am proud to be an original co-sponsor of S. 1140, The
    Federal Water Quality Protection Act, as this bill would
    address many of the concerns we have all been hearing regarding
    the EPA and Army Corps' proposed Waters of the United States
    Rule or the WOTUS rule.
        Over the last few months, we have held several hearings,
    including two field hearings in Alaska, on the proposed rule
    where we heard testimony from a variety of witnesses including
    the EPA Administrator, Assistant Secretary of the Army, State
    and local government representatives, as well as other
    stakeholders.
        This bill is a continuation of those efforts and would
    require the agencies to withdraw the current proposed WOTUS
    rule and issue a revised rule proposal that adheres to a series
    of principles delineated by Congress, only after completing
    numerous procedural requirements bypassed the first time
    around.
        In our first hearing on this issue, I asked the EPA
    Administrator McCarthy to share with me the agency's internal
    analysis justifying this rule. I am still waiting for a
    response. It was a simple request and I believe it is
    outrageous that the EPA cannot issue a legal opinion citing the
    legal justification for this rule.
        It would be useful for the EPA Administrator to not only
    address that legal justification of that rule but the front
    page article in the New York Times today on accusations that
    the EPA is violating the anti-Federal lobbying law in relation
    to this rule. It would be good to have both of those legal
    analyses from the EPA as soon as possible.
        Three-fifths of the States oppose the proposed WOTUS rule
    along with more than 300 trade groups and associations from
    across the Country. While it is Congress' job to prevent this
    massive expansion of Federal jurisdiction, we must do it in a
    way that protects our waters and allows States the opportunity
    to fulfill their roles as co-regulators under the Clean Water
    Act.
        A huge percentage of Alaska already falls under Federal
    Clean Water Act jurisdiction. This means that those building or
    doing business on or near these waters have to wrangle with the
    Federal Government to obtain costly permits and approvals.
        While there is no doubt that many of these waters, such as
    the Yukon and Kuskokwim Rivers, and their tributaries, are
    clearly jurisdictional under the Clean Water Act. The proposed
    rule seeks to go further and would encompass many waters that
    Congress never intended to be jurisdictional.
        This massive expansion of Federal authority will have harsh
    consequences for not only those who are trying to develop the
    land but State and local governments charged with protecting
    their own unique resources. It is also an expansion of Clean
    Water Act jurisdiction that I believe only Congress can grant.
        Alaska has some of the cleanest waterways in the world
    resulting in vibrant, world class fisheries and award-winning
    drinking water. We need to ensure that any effort to clarify
    Federal jurisdiction under the Clean Water Act does not
    jeopardize these characteristics that are so fundamental to the
    identity of Alaska and other States throughout the Country.
        Today we are here to discuss a bipartisan bill that would
    not only help to clarify jurisdiction and prevent unlawful
    Federal overreach, but it would also help to ensure that the
    protection of Alaska's precious resources remain in the hands
    of those who live near and rely on them.
        Thank you all again for being here this morning and I look
    forward to hearing from our witnesses.
        I yield the remainder of my time to my colleague, Senator
    Barrasso.
        [The prepared statement of Senator Sullivan follows:]

                 Statement of Hon. Dan Sullivan, U.S. Senator
                            from the State of Alaska

        Good morning and thank you all for being here today to
    discuss an important bipartisan bill, offered by my colleague
    Senator Barrasso. I am proud to be an original cosponsor of S.
    1140, The Federal Water Quality Protection Act, as this bill
    would address many of the concerns we've all been hearing
    regarding the EPA and Army Corps' proposed ``waters of the
    United States'' rule.
        Over the last few months, we have held several hearings,
    including two in Alaska, on the proposed rule where we heard
    testimony from a variety of witnesses including the EPA
    Administrator, Assistant Secretary of the Army, State and local
    government representatives, as well as other stakeholders. This
    bill is a continuation of those efforts and would require the
    agencies to withdraw the current proposed rule and issue a
    revised proposal that adheres to a series of principles, only
    after completing numerous procedural requirements bypassed the
    first time around.
        Three-fifths of the States oppose the proposed rule along
    with more than 300 trade groups and associations from across
    the country. While it is Congress's job to prevent this massive
    expansion of Federal jurisdiction, we must do it in a way that
    protects our waters and allows States the opportunity to
    fulfill their roles as co-regulators under the Clean Water Act
    (CWA).
        A huge percentage of Alaska already falls under Federal CWA
    jurisdiction. This means that those building or doing business
    on or near these waters have to wrangle with the Federal
    Government to obtain costly permits and approval. While there
    is no doubt that many of these waters, such as the Yukon,
    Kuskokwim, and Susitna rivers, and their tributaries, are
    clearly jurisdictional under the Clean Water Act, the proposed
    rule seeks to go further and would encompass many waters that
    Congress never intended to be jurisdictional. This massive
    expansion of Federal authority will have harsh consequences for
    not only industry but State and local governments charged with
    protecting their own unique resources.
        Alaska has some of the cleanest waterways in the world
    resulting in vibrant, world class fisheries and award-winning
    drinking water. We need to ensure that any effort to clarify
    Federal jurisdiction under the CWA does not jeopardize these
    characteristics that are so fundamental to the identity of
    Alaska.
        Today we are here to discuss a bipartisan bill that would
    not only help to clarify jurisdiction and prevent unlawful
    Federal overreach, but it would also help to ensure that the
    protection of Alaska's precious resources remains in the hands
    of those who live near and rely on them.
        Thank you all again for being here this morning and I look
    forward to hearing from our witnesses.

               OPENING STATEMENT OF HON. JOHN BARRASSO,
                 U.S. SENATOR FROM THE STATE OF WYOMING

        Senator Barrasso. Thank you very much, Mr. Chairman.
        I want to tell you how much I appreciate your holding this
    hearing today, as you said, on a bipartisan environmental
    protection piece of legislation.
        S. 1140, The Federal Water Quality Protection Act, is
    legislation I introduced, along with Senators Donnelly,
    Heitkamp, Manchin, along with others members of this committee,
    including you, Mr. Chairman, that will protect our Nation's
    navigable waterways and our pristine wetlands.
        This bill is a testament to the hard work that both sides
    of the aisle have done in achieving an agreement on a
    comprehensive environmental protection bill.
        I would like to thank Chairman Inhofe and other co-sponsors
    for showing environmental legislation to protection our air,
    land and water can be introduced in this committee in a
    bipartisan way.
        I think it bodes well for the future and I look forward to
    continuing to work with our colleagues on both sides of the
    aisle who want to get work done for the American people.
        With regard to this legislation, it is the subject of
    today's hearing. I would like to say that our rivers, lakes,
    wetlands and other waterways are among America's most treasured
    resources. In my home State of Wyoming, we have some of the
    most beautiful rivers in the world such as the Snake River, the
    Wind River and dozens of others.
        The people of Wyoming are devoted to keeping these
    waterways safe and pristine for our children and grandchildren.
    We understand that there is a right way and a wrong way to do
    it. It is possible to have reasonable regulations to help
    preserve our waterways while still allowing them to be used as
    natural resources.
        Rather than wait for a rule that likely will not represent
    the interests of farmers, ranchers, families, communities, let
    us move forward with a bipartisan, Federal Water Quality
    Protection Act to assure the people that we hear and understand
    their concerns.
        Thank you, Mr. Chairman. I look forward to the testimony.
        Senator Sullivan. Thank you, Senator Barrasso.
        I now want to recognize Ranking Member Whitehouse for his
    opening statement.

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

        Senator Whitehouse. Thank you, Mr. Chairman.
        Once again we are here to consider a Republican attack
    against environmental protection. It is becoming a recurring
    theme.
        This is an attempt to kill the proposed rule by EPA and the
    Army Corps of Engineers under the Clean Water Act. The so-
    called Federal Water Quality Protection Act, an ironic name if
    there ever was one, would prohibit EPA from finalizing any
    change to its regulations until it conducts a new 120-day
    comment period, responds to all comments received on the
    current rulemaking which number in the millions, carries out a
    180-day consultation with State and local governments, conducts
    analyses under five different statutes and Executive Orders and
    reports to Congress.
        The EPA rule is based on sound, scientific analysis. In my
    home State of Rhode Island, this rule is going to protect our
    environment and support our economy. Small streams and wetlands
    are vital for fish and wildlife and Rhode Island's vibrant
    recreational industry.
        The U.S. Fish and Wildlife Service reports that Rhode
    Island residents and non-residents spent $360 million on
    wildlife recreation, including $130 million on fishing in 2011.
    More than 402,000 Rhode Islanders participated in wildlife
    recreation activities in 2011.
        Contrary to what my Republican colleagues claim, this rule
    is good economic news in Rhode Island and probably across the
    Country. That is way the American Sustainable Business Council,
    which represents 200,000 businesses that rely on clean water,
    supports the EPA clean water rule.
        Polling commissioned by the Council found that 89 percent
    of small business owners, including 78 percent of Republicans,
    favor Federal rules like those proposed by the EPA to protect
    upstream headwaters.
        Seventy-one percent of small business owners agree that
    clean water is necessary for jobs and the economy. Sixty-seven
    percent are concerned that water pollution could hurt their
    business in the future.
        I ask unanimous consent that the letter from the Council
    opposing S. 1140 be entered in the record.
        Senator Sullivan. Without objection.
        [The referenced information follows:]
        [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

        Senator Whitehouse. It isn't just the business industry
    that is ready for the waters of the United States rule, I would
    also like to submit for the record letters signed by the
    American Fisheries Society, the American Fly Fishing Trade
    Association, Backcountry Hunters and Anglers, Berkley
    Conservation Institute, Bull Moose Sportsmen's Alliance, Dallas
    Safari Club, Isaak Walton League of America, the National
    Wildlife Federation, Theodore Roosevelt Conservation
    Partnership and Trout Unlimited opposing this bill and further
    delay.
        Senator Sullivan. Without objection.
        [The referenced information follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

            Senator Whitehouse. I also ask unanimous consent to submit
    for the record letters opposing S. 1140 from the Washington
    Department of Ecology, the National Wildlife Federation, a
    joint letter from American Rivers, BlueGreen Alliance, Clean
    Water Action, Earthjustice, Environment America, League of
    Conservation Voters, Natural Resources Defense Council, Prairie
    Rivers Network, Sierra Club and the Southern Environmental Law
    Center, a letter from Stroud Water Research Center and a joint
    letter from 10 scientists and a joint letter from 23 law
    professors.
        Senator Sullivan. Without objection.
        [The referenced information follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Whitehouse. Attacks on this rule from my Republican
    colleagues have been extreme and seemingly based more on
    government conspiracy theories than on the actual rule. Here is
    just a sampling. ``Under this plan, there would be no body of
    water in America, including mud puddles and canals, that would
    not be at risk from job destroying Federal regulation,'' said
    Representative Doc Hastings.
        House Small Business Committee Chairman Sam Graves claims,
    ``Permits may be required for activities such as removing
    debris and vegetation from a ditch, applying pesticides,
    building a fence or pond or discharging pollutants. Republican
    Representative Glenn Thompson of Pennsylvania calls the rule
    ``a fundamental threat to our way of life.''
        ``What this means in practice,'' says Representative Tom
    McClintock, ``is that the Forest Service and the EPA can, under
    these proposals, require cost prohibitive Federal permits for
    any proposal tangentially affecting virtually any body of water
    in the United States.''
        We have even heard from colleagues on this committee that
    the rule will jeopardize fireworks on July 4th. I am confident
    that there will be fireworks on July 4th after this rule goes
    into effect and it will not be a fundamental threat to our way
    of life.
        The rule maintains the exclusion of prior converted crop
    land meaning over 50 million acres of Clean Water Act
    permitting is still not required, excludes the vast majority of
    roadside ditches and ditches on agricultural land, eliminates
    jurisdiction over artificially irrigated areas, constructed
    stock watering ponds, irrigation basins and the like, fully
    preserves the permitting exemptions for farming, ranching and
    forestry and clearly states that the Clean Water Act does not
    apply to groundwater.
        In fact, there are areas where I think rational people
    could say the rule is too weak.
        I hope today we will get back to a discussion of this rule,
    not of the conspiracy theories around it, and that, in my home
    State of Rhode Island, as in many other States, we see these
    issues are far too important to our environment and our economy
    to be talking about imaginary rules.
        Thank you.
        Senator Inhofe [presiding]. Thank you.
        Let me welcome our witnesses. Susan Metzger is the
    Assistant Secretary, Kansas Department of Agriculture. Mark
    Pifher is Manager, Southern Delivery System, Colorado Springs
    Utilities. Robert Pierce is with the Wetland Training
    Institute, Inc., Maryland. Andrew Lemley is the Government
    Affairs Representative, New Belgium Brewing Company. Patrick
    Parenteau is Professor of Law and Senior Counsel, Environmental
    and Natural Resources Law Clinic, Vermont Law School.
        Each of the witness will have 5 minutes for an opening
    statement. We will start with Susan Metzger.

        STATEMENT OF SUSAN METZGER, ASSISTANT SECRETARY, KANSAS
                       DEPARTMENT OF AGRICULTURE

        Ms. Metzger. Thank you, Mr. Chairman. Thank you for the
    opportunity to appear today to provide our support for S. 1140,
    The Federal Water Quality Protection Act.
        In March, we had the opportunity to appear before the
    Senate Committee on Agriculture, Nutrition and Forestry to
    share Kansas' perspective on the negative impacts of the
    Federal rulemaking on Waters of the United States on Kansas
    water management.
        S. 1140 addresses many of those comments and concerns
    expressed by the States, including Kansas, in response to the
    draft rule.
        With this legislation, the States, as primary implementers
    of the Clean Water Act, will play a more appropriate and
    necessary role in crafting a rule that clearly defines Waters
    of the United States.
        S. 1140 recognizes the shortcomings of the original
    engagement put forth by the Federal agencies by promoting
    renewed federalism and proper coordination with the States
    before publication of the rule.
        For Kansas, the opportunity for public hearings in
    different geographic regions, especially in the arid west, is
    important. Rainfall in western Kansas averages 15 inches per
    year, generating little runoff, making connectivity in our
    western stream network tenuous and episodic.
        In requiring consultation with the Governors and State
    water resource agencies, this bill recognizes the variability
    and uniqueness of each State's hydrology and invites the
    Federal agencies to use existing State expertise to determine
    which marginal waters fall under Federal jurisdiction.
        S. 1140 clearly establishes groundwater and isolated ponds
    should not be defined as Waters of the United States. Of
    particular significance to Kansas is the exclusion of stream
    reaches that do not contribute flow in a normal year to
    downstream navigable waters, a typical situation in Western
    Kansas.
        As part of that policy, the legislation requires the
    establishment of quantifiable measures to determine the volume,
    duration and frequency of normal flows that constitute
    significant downstream contributions.
        We encourage the Federal agencies to consult with western
    State water resource agencies and use their in-house knowledge
    of water availability when establishing these measures.
        In Kansas' comment letter to the agencies regarding the
    proposed rule, we identified the increased costs that would be
    incurred by the State with the expansion of waters requiring
    monitoring and assessment.
        The letter also identifies other indirect cost impacts
    related to a rise in third party litigation, increases in
    mitigation for impacts, and changes in permitting conditions
    for pesticide and land waste application. S. 1140 appropriately
    addresses this concern in requiring an analysis of both direct
    and indirect costs and evaluating the potential for an unfunded
    mandate.
        Of paramount importance, this bill acknowledges that an
    exclusion of waters from Federal jurisdiction does not mean
    such excluded waters lack protection through State regulation
    and management. Kansas has a track record of progressive and
    innovative protection of the important waters of the State,
    whether under Federal jurisdiction or not, noting that not all
    waters are equally important.
        As an example of our State approach, Kansas ranks second in
    the Nation in sediment reduction and sixth in the Nation for
    phosphorous reductions through best management and conservation
    practices.
        Allowing for State administrative discretion without
    ubiquitous, counter-productive Federal oversight, ensures the
    critical waters of the State, as well as the Nation, will be
    protected.
        The proposed legislation addresses the most significant
    concerns shared by the State of Kansas in response to the
    proposed rulemaking on Waters of the U.S.
        Thank you for the opportunity to share Kansas' perspective
    and support for the Federal Water Quality Protection Act.
        [The prepared statement of Ms. Metzger follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Ms. Metzger.
        You could just as well have been describing Oklahoma as
    Kansas.
        Mr. Pifher.

     STATEMENT OF MARK PIFHER, MANAGER, SOUTHERN DELIVERY SYSTEM,
      COLORADO SPRINGS UTILITIES, ON BEHALF OF THE NATIONAL WATER
                         RESOURCES ASSOCIATION

        Mr. Pifher. Thank you.
        Members of the committee, my name is Mark Pifher. I am here
    today to provide you with the perspective of the members of the
    National Water Resources Association on S. 1140.
        NWRA is a nonpartisan, nonprofit federation whose members
    are located in the reclamation States of the West and include
    agricultural and municipal water providers, State water
    associations, and numerous individuals, including farmers and
    ranchers.
        Our members provide clean water to millions of individuals,
    families, businesses and agricultural producers.
        We have historically been ardent supporters of the Federal
    Clean Water Act and its goals. Achievement of the goals will
    assist in the protection of this most valuable resource and
    assist in protecting our source water for our municipalities
    and farmers and businesses.
        By way of further background, I am the former director of
    the Colorado Water Quality Control Division and a recent member
    of the Colorado Water Quality Control Commission, so I am very
    familiar with these water quality issues and the importance of
    the Clean Water Act and the Safe Drinking Water Act to our
    water bodies.
        However, that said, we have closely monitored the scope of
    the rulemaking proposed by the agencies, as have many other
    western water interests. We filed extensive comments.
        As those responsible for providing the water supplies, we
    believe it is of vital importance to ensure not only that water
    quality is protected, but also that we have the ability to
    build the infrastructure necessary to meet water demands
    without undue impediments that could be raised by the rule as
    initially proposed.
        We acknowledge, based on agency comments given after the
    rulemaking closed, that there may be some substantive changes
    to the final version of the rule. We hope that those changes
    are responsive to some of our express concerns.
        We would thank the agencies for their diligent work in this
    regard. They have been open to receiving our input. That said,
    it is unfortunate that this proposal has proven to be so
    controversial from the outset as it need not be because we all
    share the same goals.
        One factor at the root of the controversy was the failure
    of the agencies to timely initiate consultation with State and
    local governments and others over the draft rule. The Federal
    Water Quality Protection Act would assist in rectifying this
    failure by requiring expanded outreach efforts.
        It is the State and local governments and individuals that
    shoulder much of the cost burden and expense associated with
    issuing the 401 water quality certifications at the State
    level, the costs of meeting project permitting requirements
    under Sections 402 and 404 of the Act, and the expense
    associated with the accompanying NEPA reviews once you trigger
    Federal jurisdiction. It is very important that we get this
    right.
        In particular, we think the agencies fail to recognize
    unique geologic, hydrologic, and climatic differences across
    this Country, with particular reference to the arid regions. In
    that regard, we have many water bodies that are effluent
    dependent and effluent dominated, dry arroyos, isolated ponds,
    artificial conveyance systems to move water to places of need,
    including ditches, and geographically large basins.
        I would refer you to the pictures we have attached to my
    testimony of areas in the arid West that are typical that would
    probably be included under the new rulemaking that would make
    it very difficult, frankly, for us to fulfill our individual
    missions.
        Under the rule, adjacent waters and tributaries would all
    be jurisdictional by rule. You would not have an opportunity to
    rebut that presumption of jurisdiction. That would be very
    detrimental to the arid West.
        Another shortcoming of the initial proposal was the lack of
    definitional clarity relative to what is a significant nexus,
    the word ``significant'' is not defined, and a failure to focus
    on the need for water quality impacts, not just hydrologic
    impacts or other unrelated impacts. We think S. 1140 would
    rectify those shortcomings.
        Also related to the above is a scope of work that was given
    to the scientists under the Connectivity Report. We think it is
    undeniable that almost all waters, from rain to evaporation to
    surface flow to subsurface flow are connected in some manner.
        That does not answer the question of whether the connection
    is significant or whether water quality would be impacted. We
    think it is imperative to clarify the scope of Federal
    jurisdiction and to meet the objectives shared by all.
        That is especially true in the West where we have a time of
    drought, floods and fires. The recent fires in Arizona, the
    drought in California, the unprecedented 2013 floods on the
    South Platte River in Colorado all underscore the need to
    build, repair and replace more basin infrastructure and to do
    it in a very prompt manner without undue restrictions.
        This includes reuse facilities; reservoirs, pump-back
    projects, recycle and reuse facilities, reverse osmosis
    treatment and groundwater recharge but we cannot do that if our
    hands are tied.
        NWRA supports S. 1140 and looks forward to working with the
    committee and others, including the agencies, in an attempt to
    get it right the next time through.
        Thank you.
        [The prepared statement of Mr. Pifher follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Sullivan [presiding]. Thank you, Mr. Pifher.
        Mr. Pierce, please.

      STATEMENT OF ROBERT PIERCE, WETLAND TRAINING INSTITUTE, INC.

        Mr. Pierce. Thank you, Mr. Chairman and members of the
    committee, for this opportunity.
        I have watched the ever continuing geographical expansion
    of regulation. I fully support the goals of S. 1140 to restore
    the proper relationship between the Federal and State
    authorities as specified in Section 101(b).
        If EPA's expansive upper limit of Federal jurisdiction is
    accurate, then Congress did not need an expansive definition of
    point source in the Clean Water Act including pipes, ditches
    and channels, all of which the EPA has included under the
    definition of Waters of the U.S. already.
        Within weeks of the Rapanos decisions, many streets in D.C.
    were flooded by a large storm. Some EPA facilities were flooded
    as were parts of the National Archives. It sounds like Waters
    of the U.S. to me.
        In 1979, then-Attorney General Civilletti opined that
    Congress intended EPA to have the ultimate authority to
    determine the reach of navigable waters. Since that time, the
    Corps has had no programmatic authority to determine the
    geographic limits of Section 404.
        From 2003 to 2006, I studied flow data from streams in
    Maricopa County, Arizona. For one project, the Corps told the
    local delineator that ephemeral channels in the desert that
    were three to five feet wide should be flagged as
    jurisdictional. Later, the EPA challenged the Corps and said
    the channels that were only six inches wide should be flagged.
        My analysis revealed that on average streams flowed 1.5
    times per year for an average cumulative total of 22.9 hours
    per year, not even 1 day. How do you define an ordinary high
    water mark when the ordinary condition of a stream is dry?
        In 2014, I testified in the Los Angeles Federal Court in
    the criminal proceedings against John Appel, charged with
    discharging fill below the ordinary high water mark into the
    Ventura River. The EPA and DOJ based their case on a non-EPA
    technical report that claimed in the arid West, the ordinary
    high water mark extended to the outer limits of the active
    flood plain.
        In fact, all of Mr. Appel's activities were conducted well
    away from the true ordinary high water mark as defined in
    regulation. The jury found him not guilty after just 45 minutes
    deliberation.
        Groundwater is regulated under the Safe Drinking Water Act.
    Yet, the regional wetland delineation supplements define a
    water table that is 12 inches below the surface as equivalent
    to the surface.
        Worse, the EPA Connectivity Study allows that water as much
    as tens of meters below the surface is shallow enough to
    represent a surface connection. Rather than a technical study
    focused on connectivity, what was needed was a study on what
    constitutes significant in the context of significant nexus.
        On one occasion, I followed flow on the Santa Cruz River in
    Arizona in a helicopter. I observed 23 million gallons per day
    of treated sewage effluent flowing into the river at Tucson and
    followed the flow until it completely dissipated many miles
    from its morphological confluence with the Gila River which is
    still over 200 miles from the Colorado River.
        S. 1140 is a good start and will rectify some of the more
    egregious aspects of the proposed rule and restore balance to a
    program that has spun out of control. However, I think that it
    should go further.
        S. 1140 should define ordinary high water mark on a
    quantitative basis. There are multiple methods existing today
    for determining flow and the ordinary water mark in streams.
        While EPA has declared absolutely no uplands located in
    riparian areas in flood plains can ever be Waters of the U.S.,
    it also endorsed the same report that justified prosecution of
    John Appel as a good example of local guidance on interpreting
    ordinary and high water marks. S. 1140 should clarify that
    streams crossing tribal land boundaries in a single State are
    not interstate waters under 33 CFR 328.382.
        Activities permitted under Section 404 generally are not
    wasting activities. Nobody discharges fill so that it will wash
    away. They stabilize it so that it will remain in place,
    completely intact in perpetuity.
        I really think what is needed is a Water Resources
    Conservation Act. Conservation is wise use and the Corps has
    been broker for it for over 100 years. I recognize that this is
    beyond the scope of S. 1140.
        If I had the authority, I would excise the Corps' 404
    permitting role from the Clean Water Act and put it into a
    Water Resource Conservation Act. This would cause no increase
    in pollution and EPA could have an advisory role like other
    agencies and continue to enforce unpermitted discharges.
        Finally, I would not provide dual agency control of
    different aspects of the program as is in effect with Section
    404 of the Clean Water Act. S. 1140 provides a good starting
    point for straightening out the broken Section 404 program.
        Congress needs to compartmentalize responsibilities between
    the States, tribes and the Federal Government for the upper
    regions of water courses where the impact on navigable waters
    of the U.S. under the commerce clause is so tenuous as to not
    warrant usurpation of State sovereignty.
        I will be happy to try and answer any questions you might
    have.
        [The prepared statement of Mr. Pierce follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Sullivan. Thank you, Mr. Pierce.
        Professor Parenteau, please.

       STATEMENT OF PATRICK PARENTEAU, PROFESSOR OF LAW, SENIOR
       COUNSEL, ENVIRONMENTAL AND NATURAL RESOURCES LAW CLINIC,
                           VERMONT LAW SCHOOL

        Mr. Parenteau. Thank you, Mr. Chairman and members of the
    committee. I appreciate the opportunity to be here.
        I appear here in my own individual capacity. I am not here
    representing any particular interest. I do have over 40 years
    of experience with the Clean Water Act.
        I served as senior counsel with the Environmental
    Protection Agency for the New England region for a number of
    years during the Reagan administration. I was also the head of
    the Vermont Department of Environmental Conservation with
    responsibility for implementing the Clean Water Act at the
    State level. I represented business interests and I represented
    environmental interests.
        I have a 360-degree view of how the Clean Water Act has
    evolved over the years and how it is currently operating.
        With due respect to Senator Barrasso and the sponsors of
    this bill, my message today is simple and unfortunately, fairly
    direct. I think this is a bad bill. I think it is based on bad
    science, bad law and bad policy. I think it is going to make a
    difficult and unfortunate situation even worse.
        I think it is going to confuse what is already a very
    confused jurisdictional question under the Clean Water Act. It
    is going to increase conflict and I suppose, from the
    standpoint of an environmental law professor, some good news is
    it is certainly going to create jobs for lawyers for a very
    long time to come, years, if not decades. I say that knowingly.
        We are still litigating some of the fundamental questions
    of the text of the 1972 Act, 45 years after the law passed. It
    is no exaggeration to say we are looking, if this bill passes,
    at decades of litigation to try to untangle the difficulties
    that it is creating.
        First, as to the science, the best available science is
    represented in EPA's Connectivity Study. This was a blue ribbon
    panel of some of the finest aquatic scientists in the Nation
    appointed under the auspices of the Scientific Advisory Board,
    which this body created to oversee EPA's rulemakings.
        Their study conclusively shows, on the basis of all the
    existing literature, some 1,200 peer-reviewed studies, the
    critical importance of headwater streams and associated
    wetlands regardless of size, regardless of location on the
    landscape in an integrated system of water quality maintenance
    and biological integrity that supports traditionally navigable
    waters, rivers, lakes and estuaries.
        That science is the best science there is. The science is
    always looking for better science but as of today, that study,
    which has been rigorously reviewed, represents the best
    available science.
        There is no science that this bill is based on. This bill
    uses terms that have no grounding in science. The concept of
    isolated waters, looking at waters in isolation without regard
    to their interconnection within a system that functions
    together is not scientific. There are many other problems with
    terms used in this bill that time does not permit me to discuss
    but I will refer the subcommittee to my testimony for more
    detail. The science is clearly on the side of the approach that
    EPA is taking.
        Second is law. I continually hear that EPA is expanding the
    scope of Federal jurisdiction under the Clean Water Act. That
    is flatly wrong. Before SWANCC, before Rapanos, the considered
    judgment of all the hundreds of courts and hundreds of judges
    that looked at the question was that the entire tributary
    system of the Nation's navigable waters was subject to the
    jurisdiction of the Clean Water Act. That is all the way to the
    U.S. Supreme Court.
        The most outstanding example of this is the United States
    v. Deaton in the Fourth Circuit that was issued after the
    SWANCC decision notably in which a very conservative panel, two
    of which were on President Reagan's short list for the Supreme
    Court, ruled unequivocally that the Corps had jurisdiction over
    non-navigable tributaries and associated wetlands. The law,
    this rule, is reducing dramatically the scope of the
    jurisdiction that existed prior to these two troublesome
    decisions.
        As to policy, I hear a lot of talk about the States being
    against this rule. It depends on who you ask in a State. I was
    in a State that had tension between the agriculture agency and
    the water quality agency. You get different answers from
    different agencies depending on the type of question you ask.
        When the Rapanos case was before the Supreme Court, over 30
    States filed an amicus brief strongly supporting the extension
    of Federal jurisdiction over non-navigable tributaries and
    associated wetlands for the simple reason that downstream
    States are powerless to protect their water quality without the
    Clean Water Act, powerless.
        The U.S. Supreme Court has eliminated Federal common law
    for water quality. There is no other recourse for a downstream
    State to protect its water quality other than through the Clean
    Water Act.
        I would be happy to answer your questions.
        [The prepared statement of Mr. Parenteau follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Sullivan. Thank you, Professor Parenteau.
        Mr. Lemley, please.

    STATEMENT OF ANDREW LEMLEY, GOVERNMENT AFFAIRS REPRESENTATIVE,
                      NEW BELGIUM BREWING COMPANY

        Mr. Lemley. Thank you, Chairman Sullivan, Ranking Member
    Whitehouse, and members of the committee.
        My name is Andrew Lemley. It is an honor and a privilege to
    be before you today representing my 630 co-workers and fellow
    employee owners of New Belgium Brewing Company in Fort Collins,
    Colorado and Asheville, North Carolina.
        I am here today for one reason and to deliver one message,
    which is that our brewery and our communities depend on clean
    water. Beer, after all, is over 90 percent water. If something
    happens to our source of water, the negative effect on our
    business is almost unthinkable.
        Colorado breweries in 2013 contributed $249 million in
    direct value to our economy and provided more than 5,000 jobs.
    Each of our fellow brewers is equally dependent on a clean,
    reliable water supply.
        Nationally, there are more than 3,400 craft breweries
    directly employing over 110,000 people. These jobs cannot be
    outsourced and they range from production technicians to
    brewers to microbiologists and chemists to sales and marketing,
    human resources, sales and marketing professionals and
    everything in between. These are good jobs at growing
    companies.
        We rely on responsible regulations that limit pollution and
    protect water at its source for our growth. Our journey in
    crafting world class beers and running a successful business
    shows that we depend on these regulations.
        Over the past 23 years we have learned that when smart
    regulation exists for all and when clean water is available for
    everyone, business thrives. We have grown from the basement of
    our co-founders house in Fort Collins, Colorado to our 900,000-
    barrel-per-year brewery in Fort Collins. We are also in the
    midst of building a new 500,000 barrel brewery in Asheville,
    North Carolina.
        We have been able to grow from 2 to over 630 co-workers in
    part due to the protections that the EPA and Army Corps of
    Engineers guarantee for our water supply. Clarity in regulation
    and the protection of natural resources are keys to economic
    development. That is why we support the proposed Clean Water
    Rule from EPA.
        It will restore clear safeguards against unregulated
    pollution and destruction for nearly 2 million miles of streams
    and tens of millions of acres of wetlands in the continental
    U.S. Bringing these streams and wetlands under the umbrella of
    the Clean Water Act will help protect the drinking water for
    one in three Americans.
        These water bodies do more than just that. In addition to
    supplying drinking water, these are the streams and wetlands
    that communities rely on to prevent flooding, filter pollution,
    and provide critical fish and wildlife habitat. They provide
    these valuable services for free.
        In fact, the cost-benefit analysis done for the Clean Water
    Rule estimates that it would generate between $388 million and
    $514 million per year in economic benefits, far exceeding
    expected costs. That is one of the reasons the American
    Sustainable Business Council so strongly supports it.
        As Ranking Member Whitehouse mentioned, ASBC released a
    poll recently that showed that over 80 percent of small
    business owners favor Federal rules to protect upstream
    headwaters as proposed in the Clean Water Rule. I should also
    note that New Belgium is a member of the American Sustainable
    Business Council.
        More than 1 million Americans submitted comments on the
    draft rule, with an estimated 87 percent in support. New
    Belgium submitted supportive comments, as did many of our
    brewer partners, along with sportsmen, religious leaders,
    public health advocates and environmental organizations.
        I understand there have been many claims about what the
    Clean Water Rule will and will not do, especially when it comes
    to agriculture. It was our great honor to host EPA
    Administrator Gina McCarthy recently at our Craft Brewers
    Conference in Portland, our industry's annual gathering. More
    than 11,000 brewers and suppliers attended.
        Administrator McCarthy was very clear that nothing in the
    Clean Water Rule changes the exemptions and exclusions
    agricultural producers have received since the Clean Water Act
    was passed in 1972. She assured the brewers in attendance that
    nothing would change for their agricultural producers after the
    Clean Water Rule is finalized.
        That is critically important to us, because while beer may
    be 90 percent water, it is our agricultural partners who
    provide the raw materials that supply everything else, from
    barley and hops to spices, fruits and other ingredients.
        We believe in being a good neighbor because we know that
    our success is intrinsically linked to the success of our
    agricultural partners, beer lovers and fellow brewers. Just as
    we are connected to our neighbors, science shows how small
    streams and wetlands are linked to downstream water quality.
        The EPA and Army Corps of Engineers proposed Waters of the
    U.S. Rule is extensively vetted and has taken a significant
    amount of time to develop. To stop the process at this point
    after the agencies have engaged in an extensive and transparent
    process to elicit stakeholder input would be an unnecessary
    delay in the finalization of the rule.
        S. 1140 would continue the current state of confusion
    around Clean Water Act jurisdiction and would leave our
    waterways open to risk for pollution and destruction while
    requiring EPA and the Army Corps of Engineers to do what they
    have already ably and thoroughly accomplished.
        Thank you.
        [The prepared statement of Mr. Lemley follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Sullivan. Thank you for that outstanding testimony
    from all our witnesses. We will now turn to a period of some
    questions.
        I want to start by addressing a few comments from Ranking
    Member Whitehouse. I think it is important for all of us to
    recognize.
        We certainly all want clean water. As I mentioned, my State
    probably has the cleanest water of anyplace in the world. We
    are recognized for that. The State does a great job of
    protecting that. We care more about our clean water and clean
    environment than any bureaucrat from Washington, DC. and the
    EPA. I think a lot of the States feel the same way.
        Just to remind everyone here, there were some comments
    about Republicans wanting to undermine the Clean Water Act.
    This is a bipartisan bill. I think a lot of members on both
    sides of the aisle recognize that there are some serious issues
    with this.
        We can all trot out that several different groups oppose or
    support this bill or the regulation but it is pretty dramatic
    when three-fifths of the States of the United States have
    serious problems with this Federal regulation.
        Mr. Lemley, you mentioned a million comments. I think you
    might want to take a look at the New York Times article today
    on the front page and how those comments are coming about. I
    think the EPA has a lot of questions they need to answer.
        Let me start with Ms. Metzger. How important to Kansas is
    clean water and what does the State do in terms of focusing
    your State efforts on clean water?
        Ms. Metzger. Thank you, Mr. Chairman.
        I would echo that a State priority for clean water is
    similar as you stated. It is a high priority for our State. I
    appreciate that the Act recognizes that just because waters
    might lack Federal jurisdiction from protection, it does not
    lack the protection from State regulations.
        Perhaps even more important in Kansas is the cooperative
    non-regulatory partnership amongst our landowners. We have a
    really robust program in Kansas that relies on stakeholder
    feedback and stakeholder cooperation for voluntary approaches
    to addressing water quality approaches.
        That approach has been very successful. We call it our
    Watershed Restoration and Protection Strategy. It takes funding
    from EPA and matches that with State and local dollars. It
    allows us to put in really robust conservation practices. It
    allows us to achieve those types of successes I noted, being
    second in the Nation in sediment reduction and sixth in the
    Nation in phosphorous reduction.
        Senator Sullivan. Let me ask both you and Mr. Pifher, in
    terms of consultation, when we held field hearings in Alaska,
    the universal kind of concern, almost universal, was that there
    was no serious consultation with key stakeholders, whether
    States or local municipalities.
        Can you two address the issue? Do you think there was
    significant, substantial or adequate consultation by the EPA
    with regard to this rule?
        Ms. Metzger. For Kansas, we felt that the consultation fell
    short of what was expected in Executive Order 13132. Instead,
    the State comments were just relegated to some of those million
    comment letters and really diluted our feedback.
        Mr. Pifher. In Colorado, we felt the same, that the
    consultation prior to the issuance of the rule was far short of
    what it should have been because we believe we could have
    assisted the agencies in crafting a rule that would have proven
    not so controversial.
        Senator Sullivan. Thank you.
        I also want to go to the issue of whether this is an
    expansion of the Clean Water Act's jurisdiction. I believe
    Professor Parenteau that you said it was a shrinking of the
    jurisdiction. I think even the EPA admits that it is an
    expansion. They say it is about 3 percent.
        Let me ask a purely legal question. Does the EPA have the
    authority as a regulatory agency to unilaterally expand the
    jurisdiction of the Clean Water Act or is that only the realm
    and the authority of Congress?
        Mr. Pifher. The EPA is not expanding the jurisdiction.
        Senator Sullivan. Could you just answer the question I
    asked?
        Mr. Parenteau. The EPA is not expanding the jurisdiction.
        Senator Sullivan. That is not the question I posed.
        Mr. Parenteau. They are under an order, basically.
        Senator Sullivan. Will you answer the question I posed? We
    do not have a lot of time here. Does the EPA have the authority
    to unilaterally expand the jurisdiction of the Clean Water Act
    or is that only the realm of the Congress?
        Mr. Whitehouse. Mr. Chairman, I think he is entitled to
    answer your question as he sees fit.
        Mr. Parenteau. The answer is EPA has the authority to
    interpret the geographic scope of the Clean Water Act
    consistent with the way the courts, including the Supreme
    Court, have interpreted the language of the Act. That is
    exactly what EPA is doing.
        Senator Sullivan. Ms. Metzger, do you have an answer to
    that?
        Ms. Metzger. I can give the example of how we interpret the
    expansion under the proposed rule for Kansas.
        Currently, what is approved by EPA as our Waters of the
    U.S. in the absence of the proposed rule is what we consider
    those waters with designated uses that are by State statute put
    into our surface water quality standards. That encompasses a
    little better than 30,000 stream miles in Kansas.
        As we interpret the blanket definition of tributary in the
    proposed rule, that would result in about 174,000 stream miles.
    That is a 460 percent increase.
        Senator Sullivan. Thank you.
        Ranking Member Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        First of all, to respond to your comments, it appears to me
    that every single time we have a hearing in this committee, at
    least since John Warner, the Republican from Virginia, left,
    every single time every Republican effort is antagonistic to
    the environmental protection involved and every single
    Republican member is opposed to the environmental protection
    involved.
        It happens every time and it is a continuing theme. I stand
    by my remarks. It is unfortunate and it is very inconsistent
    with the tradition and history of your party but it is the way
    we are right now.
        I have a statement from Ranking Member Boxer. I would ask
    unanimous consent that her statement be made a part of the
    record.
        Senator Sullivan. Without objection.
        [The prepared statement of Senator Boxer follows:]

                 Statement of Hon. Barbara Boxer, U.S. Senator
                          from the State of California

        Today, the Subcommittee on Fisheries, Water, and Wildlife
    is meeting to consider legislation that would undermine one of
    our nation's landmark laws--the Clean Water Act--and roll back
    protections for small streams and wetlands that provide
    drinking water to roughly 1 in 3 Americans--or 117 million
    people.
        Decades ago, the United States experienced widespread
    damage and degradation to our environment--the Cuyahoga River
    in Cleveland, Ohio, was on fire and our lakes were dying from
    pollution. The American people demanded action, and in 1972
    Congress passed the Clean Water Act by an overwhelming
    bipartisan majority.
        Unfortunately, the legislation before us today, S. 1140,
    would take us in the wrong direction by removing protections
    and creating more confusion and uncertainty about which waters
    are protected.
        Recent events in Toledo, Ohio, remind us of that our
    drinking water remains vulnerable to pollution. Half a million
    residents in this major American city went without drinking
    water for days because nutrient pollution washed into Lake
    Erie, causing toxic algae to bloom.
        If we are serious about ensuring that the waterways our
    children and families rely on for drinking water are free from
    pollution, we must uphold Clean Water Act protections that have
    existed for decades.
        In response to calls from industry, environmental
    organizations, and 30 of my Senate Republican colleagues who
    requested a full rulemaking to clarify the scope of the Clean
    Water Act, the Obama administration proposed a rule that
    defines which waters are protected under the Act.
        Defending our waterways from pollution used to be a
    bipartisan issue. And for decades, members of both parties
    understood that wetlands, lakes, and small streams are
    interconnected, and water pollution must be controlled at its
    source.
        William Ruckelshaus, EPA Administrator under Nixon and
    Reagan, highlighted this understanding when he wrote, ``Broad
    Clean Water Act jurisdiction is not only necessary to clean up
    the Nation's waters. It is necessary to ensure that the
    responsibility for maintaining and restoring clean water is
    shared equitably throughout the watershed and from state to
    state.''
        S. 1140 ignores the long and successful history of the
    Clean Water Act. In fact, the bill would change the goal of the
    Clean Water Act from restoring the ``chemical, physical, and
    biological integrity of the Nation's waters'' to instead focus
    on protecting ``traditional navigable waters''. When it
    originally passed the Clean Water Act, Congress rejected the
    idea that the Act is limited to navigable waters and the courts
    have consistently said the Act is much broader. Furthermore,
    this bill arbitrarily excludes large categories of water bodies
    that are important for water quality and provide drinking water
    to millions of Americans.
        The Obama administration's efforts are about protecting
    drinking water for American families and businesses, and the
    process it has undertaken has been open and inclusive. More
    than 1 million comments were received during a comment period
    that lasted over 200 days, and over 400 outreach meetings with
    stakeholders and State and local governments were conducted.
        The bill before us would waste millions of taxpayer dollars
    by requiring EPA to repeat robust outreach efforts that have
    already been carried out. This is unnecessary and wasteful and
    does nothing to ensure American families and businesses have
    clean water.
        Instead of advancing a bill that would allow our nation's
    waterways to become more polluted, we should listen to the wide
    variety of stakeholders that support the proposed clean water
    rule. A poll released yesterday shows that 78 percent think
    Congress should allow the rule to move forward. In addition, a
    July 2014 poll found that 80 percent of small business owners
    support protections for upstream headwaters and wetlands in the
    proposed clean water rule.
        It is time to restore much-needed certainty, consistency,
    and effectiveness to the Clean Water Act. S. 1140 does just the
    opposite. It would result in further delay, more uncertainty,
    and less protection for our nation's waterways.

        Senator Whitehouse. Close on 5 years ago, Rhode Island had
    very significant flooding. Climate change is changing the rain
    patterns in the northeast. The heavy rain bursts are
    dramatically increasing. I think it is something like 70-some
    percent.
        I remember during the floods going around by helicopter and
    flying over Narragansett Bay. You could see the flooded rivers
    and all of the refuse, all of the mud, all of the waste,
    everything that had been pushed out into what is ordinarily a
    clean bay because of those storms. It did a lot of damage.
        It strikes me that the issue we should be looking at here
    is not whether a stream is intermittent or not, in fact I think
    as Mr. Parenteau pointed out, Justice Scalia, who is hardly a
    liberal, in the Rapanos decision said that seasonal tributaries
    are covered by this statute.
        I think that question is kind of over. Is it foreseeable
    that these tributaries will deliver significant amounts of
    waste, pollution, refuse or other things into the waters we all
    use is the real question.
        If it is foreseeable that it will happen, then why is it
    not logical that we would want to protect downstream users from
    upstream waste?
        Mr. Parenteau, you talked a bit about downstream States.
    Rhode Island is a downstream State. Will you elaborate a bit on
    what you mean by downstream States?
        Mr. Parenteau. Outside of perhaps Alaska and Hawaii, we are
    all downstream. That is the point. The Supreme Court, years
    ago, ruled that States no longer have authority under the
    Federal common law to go to the U.S. Supreme Court to resolve
    interstate water pollution control problems.
        The Supreme Court said the States' only remedy is through
    the Clean Water Act. That is what the court ruled. The capacity
    to the 1972 Clean Water Act preempted Federal common law, left
    the downstream States with no other remedy other than whatever
    exists under the Clean Water Act. That is the state of the law
    right now.
        Senator Whitehouse. Without this, we have nothing?
        Mr. Parenteau. That is right.
        Senator Whitehouse. Ms. Metzger, you are responsible for
    activities in the State of Kansas. This is a hypothetical
    question. If you knew that for 3 weeks a year a big rain was
    going to come and it was going to flood through what is
    otherwise a dry, intermittent creek bed and it was going to
    wash whatever was in there down into waters that your Kansans
    depend on to be clean and available to them, would you think
    that was important to regulate?
        Ms. Metzger. Those waters, if deemed necessary by the State
    are protected by our State regulations, not by Federal
    regulation. We appreciate that S. 1140 goes a little bit
    further and then says, then let us establish those quantifiable
    measures for determining those flows that would have Federal
    jurisdiction.
        Senator Whitehouse. Even where you can foresee that waste,
    pollution, refuse and other things would be washing into the
    waterways of Kansas, you would still say, no, that is not
    something that the Clean Water Act should regulate?
        Ms. Metzger. We feel they are adequately protected with
    State regulation.
        Senator Whitehouse. OK. Good luck with the Supreme Court on
    that.
        Senator Sullivan. I think it is a legitimate answer,
    myself.
        Senator Whitehouse. It is just legally wrong.
        Senator Sullivan. We will see.
        Senator Barrasso.
        Senator Barrasso. Thank you very much, Mr. Chairman.
        Ms. Metzger, I would like to read you a front page story
    today in the New York Times entitled, Critics Hear EPA's Voice
    in Public Comments.
        The story says, ``Late last year, the EPA sponsored a drive
    on Facebook and Twitter to promote its proposed Clean Water
    Rule in conjunction with the Sierra Club. At the same time,
    Organizing for Action, a grassroots group with deep ties to Mr.
    Obama, was also pushing the rule. They urged the public to
    flood the agency with positive comments to counter opposition
    from farming and industry groups.''
        This is important. As the article implies, it says ``The
    Justice Department, in a series of legal opinions going back
    nearly three decades, has told Federal agencies they should not
    engage in substantial grassroots lobbying defined as
    communications by executive officials directed to members of
    the public at large or particular segments of the public
    intended to persuade them in turn to communicate with their
    elected representatives on some issue of concern to the
    executive branch of government.''
        To me it sounds like the EPA is, at worst, violating the
    law, but if not, at least violating the spirit of the law.
        My question is, do you believe the EPA is serious about
    actually considering the opinions of people from Kansas, from
    Oklahoma, from Alaska, from Wyoming in drafting this rule if
    they are actively orchestrating a public relations campaign to
    support the rule they have drafted?
        Ms. Metzger. I can make a couple responses to that. First,
    I would agree with Mr. Pifher's comments earlier that had EPA
    fully engaged the States early on, I am not sure we would be
    here today.
        To Mr. Parenteau's comments that the State comments from
    Kansas do not represent all of the different perspectives and
    different agencies, our letter to the EPA and the Army Corps of
    Engineers was a joint letter from Governor Sam Brownback, the
    Department of Agriculture and our Department of Health and
    Environment, as well as our Wildlife, Parks and Tourism
    Divisions, collectively representing all of our different State
    agencies with the same feedback to the EPA.
        At this point, we appreciate that S. 1140 recognizes that
    fell short of true coordination and consultation with the
    States. If EPA really felt that was the right step forward and
    really respected our input in the process, they would not be
    fearful of S. 1140 and an additional 120-day comment period.
        Senator Barrasso. Thank you.
        Mr. Pifher, you mentioned in your written testimony the
    drought in the West means that States need to construct
    infrastructure such as new reservoirs and water pipelines to
    address the need for more water.
        Given that drought is a fact of life in many western
    States, do you believe the EPA's proposed Waters of the U.S.
    Rule will needlessly slow down much needed, long term and short
    term water development projects for these States?
        Mr. Pifher. I think it very well may have that effect,
    unfortunately. Let me give you two observations.
        First, I have been associated with the construction of
    probably two of the largest infrastructure projects in
    Colorado, water delivery projects, certainly in the last few
    decades. One was Aurora's Prairie Waters Project, a $600
    million pipeline pump station and treatment plant facility. The
    second was a current southern delivery system being constructed
    by Colorado Springs utilities at a cost of over $800 million.
        The former did not need, because it worked hand in hand
    with the Corps of Engineers, a Section 404 permit and
    individual permit and it never triggered NEPA. We went from
    conceptual design to construction to ribbon cutting in 5 years
    with mitigation costs of about $1.5 million.
        Southern delivery, on the other hand, could not avoid
    Section 404. It went through the NEPA process and it took over
    a decade, over $30 million investment in the permitting process
    and is going to be tens of millions of dollars of additional
    mitigation. That, in and of itself, is a disincentive.
        The other point I would like to make is if you decide to
    Federalize through rulemaking, what I would consider the
    arroyos, the washes, the very intermittent, as in once a
    decade, type of stream system in the West, you are going to
    force water providers, who need that additional storage for
    times of drought, to look to the main stem.
        What is the difference if you trigger Section 404 and NEPA
    on the isolated waters and trigger it on the main stem? You
    might as well increase the certainty of yield and increase the
    reliability of your project and go on the main stem where no
    one wants to be really because the environmental impacts could
    be more damaging.
        Senator Barraso. Thank you.
        Mr. Lemley, you referenced EPA Administrator McCarthy. You
    said she spoke before the Craft Brewers conference and said,
    according to your written testimony, that nothing in the clean
    water rules change the exemptions and exclusions agricultural
    producers have received since the Clean Water Act was passed in
    1972.
        If this proposed rule is so good for American agriculture,
    the following groups are supporting my bill: the American Farm
    Bureau, Agriculture Retailers Association, Soy Bean
    Association, Sugar Alliance, the Colorado Pork Producers, Corn
    Refiners, Milk Producers, National Association of Wheat
    Growers, Beef Association, Chicken Council, Corn Growers,
    Council of Farmer Cooperatives, the National Turkey Federation,
    U.S. Poultry, the United Egg Producers, and U.S. Rice
    Foundation.
        Mr. Chairman, I have a whole list of people supporting
    this. Could I please put that into the record?
        Senator Sullivan. Without objection.
        [The referenced information follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. I can go on and on but I would just say
    if this proposed rule is so good for agriculture and all of
    these groups that represent this broad spectrum of American
    agricultural products are all opposed to the proposed rule,
    they support this legislation, why are they opposed to this
    proposed rule then if it is so good for them?
        Mr. Lemley. Senator, I cannot speak to what their
    objections to the rule specifically or obviously. I think that
    is why EPA did have an extended comment period. I think that is
    why we are waiting for the final rule to come out to see how
    EPA will respond to their concerns.
        Senator Barrasso. I would just say, Mr. Chairman, it looks
    like EPA is really trying to game the system with their comment
    period as the front page of the New York Times today explains.
        Thank you, Mr. Chairman.
        Senator Sullivan. Thank you, Senator Barrasso.
        Senator Fischer.
        Senator Fischer. Thank you, Mr. Chairman. I appreciate you
    holding this very important hearing today.
        Mr. Pierce, in your testimony, you note that the proposed
    rule considers any water tens of meters below the surface or
    even lower to be a connection that creates Federal control over
    isolated water.
        What would this expansion mean in a State like Nebraska
    where we have areas of relatively shallow groundwater? Do you
    believe that S. 1140 will help prevent EPA and the Corps from
    controlling isolated water or the ephemeral streams based on
    those groundwater connections?
        Mr. Pierce. I have not seen the latest draft of the rule
    that is being talked about as being more expansive than what
    was proposed. The tens of meters below the ground was the EPA's
    Connectivity Study which they considered to be close enough to
    the surface for a connection.
        A place like Nebraska, there are many other States where
    groundwater remains quite close to the ground surface during
    the years, could be in jeopardy of having a much broader than
    currently existing jurisdictional review by the Corps and EPA
    based on an expansion by EPA if they allow connectivity.
        They have already taken things like clearly non-
    jurisdictional swales and they have connected wetlands. This
    was done about 6 months after the SWANCC court case. They say
    that a molecule of water could get from a wetland half a mile
    away, say in California, down a non-jurisdictional swale,
    therefore, that is connected.
        In fact, the entire planet is connected hydrologically, so
    we cannot argue that. The question is, according to the Supreme
    Court, whether it is a significant connection or not. That is
    what this study should have dealt with.
        As far as my reading of the EPA Connectivity Study, the
    only thing in ephemeral waters that they really addressed that
    was showed as a connection, I did not see it as a connection,
    they said some ephemeral waters will recharge groundwater.
        I looked at every place where they talked about ephemeral
    waters in that proposed study and that was it. That, to me, is
    not a connection to navigable waters of the U.S.
        Senator Fischer. Thank you.
        We have deep concerns with that in the State of Nebraska
    where we sit over the Ogallala Aquifer. At least twice a year
    in the spring and the fall, we have groundwater that rises and
    truly becomes surface water for a period of time before it then
    recedes again. I thank you for your perspective on that.
        Mr. Pifher, in your testimony, you discussed the failure of
    the EPA and the Corps to consult with State and local
    governments, even though they bear the burden of making the
    regulatory process work on a daily basis.
        I was able to chair a field hearing in the State of
    Nebraska on the proposed rule. I would note that it was brought
    out at that hearing that according to the EPA's numbers, 58
    percent of substantive comments of that almost 1 million
    comments were opposed to the rule.
        It was also brought out at that hearing by our attorney
    general's office in the State of Nebraska how the rule
    infringes on our State's authority to protect and manage our
    resources. Water in Nebraska, whether it is groundwater or
    surface water, is owned by the people of Nebraska. It is a
    State resource.
        This uncertainty now that we are facing over not just
    control but also cost helped to develop in Nebraska a very
    broad coalition opposed to this rule because of that
    uncertainty, whether it is ag groups, home builders, cities, or
    counties.
        Can you tell me how you think the rule would impact, in
    Colorado, your State and local programs? At the hearing, we
    heard about the cost to taxpayers, the cost to citizens,
    whether a city or county, that they would face by this Federal
    overreach. Could you address that for Colorado?
        Mr. Pifher. Yes, Senator.
        The concerns I have heard in Colorado sort of run the whole
    gamut among water suppliers, waste water dischargers, how need
    Section 402 permits, and also those responsible for stormwater,
    often the public utilities along with their water service
    duties.
        The concern relates to the infrastructure they feel they
    need to construct in the future, be they water delivery lines
    so they have redundancy in time of drought or newt storage
    vessels so they can store water in times of plenty for times
    where the water supply is lacking.
        Small towns with lagoon systems out on the plains of
    Colorado, for example, may be discharging to a dry arroyo, in
    fact. Historically, they did not need a Section 402 permit to
    discharge but under the new proposal could. It is a huge burden
    for a small town to retrofit, if you will, their wastewater
    treatment facilities.
        Stormwater, even EPA is a real advocate for green
    infrastructure. I think we all are. We want retention,
    detention, we want clean water, we want it cleansed before it
    gets back into our traditional navigable water bodies, yet most
    of the stormwater facilities that municipal entities and
    special districts need to construct are in natural swales or
    low spots, if you will, or drainageways. That is where
    stormwater goes.
        If every time you operate in those areas, you need to pull
    a Section 404 and potentially even trigger NEPA, it is going to
    make it very difficult.
        The final thing I will say, which I think being fairly
    close by you are aware of the fires in Colorado, it was of
    necessity that we got out a week or less after those fires went
    out, those large fires outside Colorado Springs and Denver.
        In the drainageways, we put in detention structures to hold
    back the sediment flows and debris that would come down the
    first time you got an athen train even. What would potentially
    be considered navigable waters of the United States under the
    proposal? That is problematic.
        Senator Fischer. It would be problematic in your response
    time, correct?
        Mr. Pifher. Yes, exactly.
        Senator Fischer. Thank you.
        Thank you, Mr. Chairman.
        Senator Sullivan. Thank you, Senator Fischer.
        Senator Markey.
        Senator Markey. Thank you, Mr. Chairman.
        The Clean Water Act is one of America's great success
    stories. The drama of rivers catching on fire propelled it into
    law and the importance of clean water to public health and the
    economy keep it going today.
        Cleaning up our waterways takes sustained efforts. In 2013,
    for the first time in 50 years, the Charles River in Boston was
    declared clean enough for swimming.
        While we have made large improvements in water quality
    since enactment of the Clean Water Act, there is still more to
    do. More than half of U.S. rivers are still unsuitable for
    aquatic life, largely due to fertilizer, runoff and pesticides.
        One in four fish are unsafe to eat due to high mercury
    levels. As much as fish are affected, analysis of 20 million
    tap water quality tests in 45 States found 316 different
    contaminants from industrial solvents to weed killers in water
    supplied to the public over a 5-year period. That is why a
    strong Clean Water Act is still important today.
        Today's hearing primarily concerns the definition of
    navigable waters, the term which is used in the Clean Water Act
    and has been the subject of competing interpretations. For all
    the controversy that surrounds it, however, Congress'
    legislative intent was clear.
        The 1972 conference report states, ``The conferees fully
    intend that the term `navigable waters' be given the broadest
    possible constitutional interpretation.''
        Mr. Parenteau, I would like to ask you some questions about
    that and the Supreme Court's ruling on the issue.
        The Supreme Court has held that wetlands are deemed waters
    of the United States if they significantly affect navigable
    waters, which term the Court has expressed includes something
    more than traditional navigable waters. In fact, the Court has
    twice stated that the meaning of navigable waters in the Act is
    broader than the traditional meaning of the term.
        Mr. Parenteau, is the proposed rule consistent with the
    Constitution and the decisions of the U.S. Supreme Court?
        Mr. Parenteau. In my view, it is, Senator Markey.
    Specifically, with the question of significant nexus, there
    have been 11 Circuit Court decisions since the Rapanos case was
    issued. All 11 have said the Kennedy test is either the
    controlling test, the Kennedy test is the significant nexus
    test, is either the controlling test or in one Circuit, the
    Eleventh Circuit, the exclusive test.
        No court has said that Justice Scalia's plurality opinion
    is the controlling opinion from the Rapanos case. Significant
    nexus means biological integrity. It does not mean simply the
    transport of a pollutant from point A to point B.
        The Supreme Court unanimously, in the Riverside Bayview
    case, said the purpose of the Clean Water Act is to protect the
    ecological integrity of the Nation's waters, an opinion written
    by Justice White of Colorado, who had knowledge of the western
    landscape.
        Senator Markey. Thank you.
        Will the proposed rule decrease litigation risk and reduce
    uncertainty over which types of water bodies are within Federal
    jurisdiction by defining which waters affect navigable waters
    and are subject to the Clean Water Act?
        Mr. Parenteau. Quite the contrary, it will increase
    litigation because this bill layers on a whole bunch of new
    terms and new concepts that will all have to be litigated on
    top of an existing body of case law, including the Supreme
    Court's decisions in Rapanos.
        You are now going to have a whole new wave of litigation
    trying to understand what this legislation would do in relation
    to the original legislation and the case law that exists.
        Senator Markey. Will the rule clarify?
        Mr. Parenteau. It will not.
        Senator Markey. It will not clarify.
        Mr. Parenteau. The Clean Water rule will clarify.
        Senator Markey. Will the rule clarify?
        Mr. Parenteau. The rule will clarify, to the extent it can
    be clarified.
        Senator Markey. The rule will clarify. The bill will not
    clarify?
        Mr. Parenteau. Right.
        Senator Markey. That is important to get out there.
        Mr. Lemley, history has shown that left unprotected,
    wetlands and the free water purification services they perform
    are often diminished or destroyed. Do you believe that by
    protecting these free water cleaning systems the proposed rule
    will have a positive economic impact on our industry and the
    economy?
        Mr. Lemley. Absolutely, there is no question. We are also
    in Colorado and with the fires we saw and then the flooding we
    saw, we are very concerned about water quality and the
    availability of water. We need, in our growing industry, as
    much clean and abundant water as we possibly can get.
        Senator Markey. Thank you.
        Thank you, Mr. Chairman.
        Senator Sullivan. Thank you, Senator Markey.
        Chairman Inhofe.
        Senator Inhofe. Thank you, Mr. Chairman.
        Senator Barrasso brought up the article in this morning's
    New York Times. I would ask unanimous consent that article be
    made a part of the record.
        Senator Sullivan. Without objection.
        [The referenced information follows:]
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        Senator Inhofe. I would also like to make sure the record
    notes what the EPA actually conducted, the New York Times
    suggests, was an unprecedented grassroots lobbying campaign
    that may violate Federal law.
        I want to make sure everyone knows I have already asked the
    Government Accountability Office to look into this matter.
        One of the things I hear different people discussing, the
    liberals in the U.S. Senate and in the House, I would say, is
    it is always offensive when people talk about the States, what
    they want, and the individuals.
        I am reminded when this issue first came surfaced, it was
    to take the word ``navigable'' out. My good friend from
    Massachusetts will remember this because the authors of that
    bill were Senator Feingold and Representative Oberstar. This
    was many years ago.
        Not only did we overwhelmingly defeat that legislation but
    both of them were defeated the next time they came up for
    reelection. The people really are plugged into this thing.
        Right now, 32 States have already said they support this.
    This is what is coming from the States. It is almost offensive
    to people here in Washington.
        I do not think anyone has talked about the regional
    treasures yet I think it was Administrator McCarthy who told
    the National Farmers Union that the EPA plans to finalize a
    rule that will go even further than the original proposed by
    regulating regional treasures.
        Ms. Metzger, do you want to address that for us? It should
    be a part of this hearing.
        Ms. Metzger. Absolutely. Thank you, Mr. Chairman.
        I believe a map is being held up that shows that the
    Central Great Plains eco-region covers a good portion of
    Kansas. If we looked at the isolated waters mapped within that
    area, our wetlands that are not under Federal jurisdiction,
    number somewhere in the neighborhood of more than 480,000 acres
    that would then fall under the jurisdiction of the Clean Water
    Act if that was considered jurisdictional.
        Similar to expansion of the stream mile, that would divert
    State resources currently used for protecting our waters of the
    U.S. toward additional acres that could then be better used for
    other State programs. That would cause significant concerns.
        Senator Inhofe. If you look at that map, you see that
    Oklahoma and Kansas, almost exactly the same percentage, would
    fall into that category.
        In Oklahoma, Tom Buchanan is the President of the Oklahoma
    Farm Bureau. He made a statement and most of the rest of the
    Farm Bureaus have added their names to the statement. He said
    the major problems facing the farmers and the ranchers in my
    State of Oklahoma have nothing to do with anything that is
    found in the agriculture bill. Instead, it is over regulation
    by the EPA.
        When they talk about the endangered species and all these
    things that are happening through over regulation of the EPA,
    the No. 1 concern is the issue we are talking about today.
        I noticed, Mr. Pifher, I guess you are the one who had this
    picture. I asked to see a copy. Out in the panhandle of
    Oklahoma it is walking distance to both Kansas and Colorado.
    This could just as well have been in Oklahoma.
        Mr. Pifher, Mr. Lemley and Mr. Parenteau claim that the
    Waters of the United States Rule is needed to protect the
    drinking water of 117 million people and that S. 1140 does not
    provide that protection. Do you want to respond to that
    statement?
        Mr. Pifher. I believe the drinking water source for all
    citizens actually is adequately protected under the Clean Water
    Act and the Safe Drinking Water Act today. In fact, it has been
    over a decade I think since EPA issued a directive to all the
    States to identify what are called source water protection
    scenarios.
        At that time, I ran the Colorado Water Quality Control
    Division and we were very diligent in completing that task,
    working with local towns, cities and other water provider
    communities. They all submitted their delineation and that
    became part of our water quality standards program.
        I think we have adequate protection in place.
        Senator Inhofe. Thank you very much.
        Thank you, Mr. Chairman.
        Senator Sullivan. Thank you, Senator Inhofe.
        Senator Rounds.
        Senator Rounds. Thank you, Mr. Chairman.
        I have a question for Ms. Metzger and also Mr. Pifher. I
    would like to read the statement and then ask your thoughts.
        Claiming that a definition imposes no cost on State and
    local governments or small businesses, EPA and the Corps chose
    to ignore laws and Executive Orders that would have required
    them to develop the proposed rule in partnership with the
    States and after evaluating local government and small business
    impacts.
        In fact, the summary of the rulemaking on OMB's website
    says that the Waters of the United States Rule is not a major
    rule and makes the following statements. One, there is no
    regulatory flexibility analysis required. Two, there are no
    small entities affected, so there are no small business
    impacts. Three, there are no government levels affected. Four,
    there does not need to be a federalism consultation because of
    that.
        To both of you, I want to know, do you agree with these
    statements? Second, under S. 1140, would the EPA and the Corps
    be able to simply skip a regulatory flexibility analysis, small
    business impact analysis or a federalism impact analysis?
        Ms. Metzger. Regarding the first question, we would
    disagree. This is a major rule. We appreciate that S. 1140
    doesn't provide any wiggle room of doing the proper evaluation
    and consultations that you described.
        We talked a bit about the lack of consultation and the
    appropriate level of federalism related to the cost in our
    comment letter that we provided to the proposed rule. We gave a
    very specific example of the cost incurred by the States if the
    proposed rule were put in place.
        We expend about $300,000 of State funds every year
    conducting about 500 use attainability analyses on our
    designated waters. If this rule were to go into effect, we
    could expect that State expenditure for use attainability
    analysis, we would have to redo the 500 that we do on an annual
    basis and should expect we would have to do additional ones as
    new waters are brought into jurisdiction.
        Those are precious State resources that could be spent
    achieving other water quality protection.
        Senator Rounds. Mr. Pifher.
        Mr. Pifher. I would just add one, I agree with what was
    said by Ms. Metzger. It would increase the number of use
    attainability analyses that have to be performed not only by
    the State but by local governments who have to seek some water
    quality standard modifications to what historically were not
    treated as jurisdictional waters.
        The State would also bear the cost of doing Section 401
    certifications. If you need a Federal license or permit, like a
    Section 404 permit, the State has to certify that the project
    being permitted meets all appropriate State water quality
    requirements.
        Part of the Section 401 certification is an anti-
    degradation review which is also, at times, quite lengthy and
    expensive to perform. Generally, States do not have the
    resources to expand those programs.
        At the local level, utilities or special districts are
    responsible also for waste water from discharges and stormwater
    control facilities meeting MS-4 stormwater permit requirements.
    To the extent you Federalize more and more waterways, it
    becomes more difficult to ensure compliance with those types of
    permit requirements.
        Senator Rounds. Thank you.
        Mr. Pierce, in your testimony, you state that in the EPA
    Connectivity Study, which formed the basis for the rule, water
    that is as deep as 10 meters below the surface is shallow
    enough to represent a surface connection.
        You go on to say that rather than a technical study focused
    on connectivity, EPA should have undertaken a study on what
    constitutes significant in the context of significant nexus.
        Is it your contention that the EPA failed to ask the
    Science Advisory Board the proper relevant questions regarding
    the surface connections and what constitutes a significant
    nexus when seeking scientific advice regarding the proposed
    rule?
        Mr. Pierce. I think the fault was with whoever in EPA
    decided to do a study internally, first of all, because those
    people were directed to do a study on connectivity. They should
    have been directed to do a study on significant as in
    significant nexus.
        I cannot fault the Science Advisory Board because they
    simply were provided with a study that EPA produced and asked
    to evaluate it. They did it. I do not know that it is in their
    mandate to tell the EPA that you did the wrong study for a
    particular reason, but they simply evaluated the study that was
    done.
        Anybody who has ever been in science and dealt with
    hydrology knows that systems are all connected. That was kind
    of meaningless and most of the study that EPA did was based on
    flood plains being connected to their rivers in which their
    flood plain exists. That is kind of a no brainer.
        The question was, what about the connectivity of ephemeral
    streams way up in the far, removed from the navigable waters of
    the U.S. That was addressed very minimally.
        Senator Rounds. Thank you.
        Mr. Chairman, my time is up but I would like to ask your
    permission to enter into the record a copy of a letter to the
    Corps of Engineers from me regarding the question and the
    comment period and whether or not the comments sent to the EPA
    and the Corps of Engineers where there is a discrepancy or a
    misconnect between the EPA's comment about a million comments
    coming in and the favorability versus what the Corps of
    Engineers had done and the Corps of Engineers' response showing
    that of those unique responses, 60 percent of those unique
    responses were opposed to this new rule, Waters of the U.S.,
    versus 29 percent in favor, significantly different than what
    the EPA had suggested of 89 percent being favorable and their
    explanation.
        Senator Sullivan. Without objection.
        [The referenced material was not received at time of
    print.]
        Senator Rounds. Thank you.
        Senator Sullivan. I have a few more questions to wrap up.
        One of the issues I think has been controversial about the
    WOTUS rule is the legal basis of the rule. We have asked the
    EPA Administrator to provide us the legal opinion they have
    used as the basis for promulgating the rule.
        Senator Rounds also talked about the Connectivity Report.
    This question is open to any of the witnesses to comment.
        In terms of the process, Professor Parenteau, in your
    testimony, you talked about the science and some of the science
    for the rule was based on the Connectivity Report. One of the
    problems for people commenting was that the Connectivity Report
    was not finalized before the EPA issued the final proposed
    rule. The Final Connectivity Report was never available during
    the public comment period on the proposed rule.
        The report upon which the rule is based was never out in
    time for people to analyze it before the period of comment on
    the rule was closed. Would anyone like to comment on that?
        I have the specific dates with regard to when the rule came
    out, when the Connectivity Report came out, but the review and
    the final Connectivity Report was not completed until January
    15, 2015, over 2 months after the comment period had ended on
    the rule upon which it was based which to me seems to be the
    exact backward way in which to develop a rule based on science.
        Would any of the witnesses care to comment on that?
        Mr. Pierce. I commented on the draft study, EPA study,
    because that was all that was available. I personally found
    that you are absolutely right, that is not the way science
    should work, nor the way the Regulatory and Administrative
    Procedures Act should work.
        They based a proposed rule on something that was not
    finalized and then the SAB did not get its report done either
    because it was working with a proposed study. That is not the
    way this is supposed to work.
        I will say to their credit that this is the first time EPA
    has bothered to go through the APA procedures in changing
    jurisdiction. They have been doing it for a long time just
    through guidance documents. At least they made an effort but it
    certainly was not an effort one would think would be based on
    good science.
        First of all, there was the wrong study, connectivity
    instead of significant analysis, and then not even a completed
    study when they did the proposed rule.
        Senator Sullivan. Professor Parenteau.
        Mr. Parenteau. I have a couple of points. I am not going to
    apologize for EPA if they got things out of order. I will say
    that several things about the Connectivity Report need to be
    emphasized.
        One, EPA's rule does not go as far as the Connectivity
    Report suggests it could go. It does not go as far as the
    science suggests it could go. That is an important point that
    has been sort of overlooked here.
        Two, EPA asked the Science Advisory Board for information
    to inform its significant nexus determination. The reason they
    asked for the Connectivity Report approach is because Justice
    Kennedy, in his controlling opinion, said the key question is,
    in the aggregate, how do streams and wetlands affect the
    chemical, physical, biological integrity of the Nation's
    waters.
        It was this aggregate concept that Justice Kennedy imposed
    that had to be addressed in EPA's rulemaking. The science was
    designed to inform that aggregate analysis of headwaters,
    streams and their role. That is why the process works the way
    it did. The fact that the SAB validated EPA's approach is the
    most important point.
        Senator Sullivan. Thank you for that.
        Mr. Pifher.
        Mr. Pifher. I was just going to add that we did comment,
    NWRA and other western water interests, on the procedural flaw,
    if you will, in this process. Maybe more important was the
    scope of the charge, as Mr. Pierce has pointed out, was
    incorrect.
        The Science Advisory Board, in reviewing the work on the
    report, said there really was a failure to identify the
    gradient of connectivity that was necessary before you would
    Federalize a water body. This gradient concept really boils
    down, I think, to significance. There was a failure to
    determine what is significant relative to water quality.
        Senator Sullivan. Mr. Pierce, did you have an additional
    comment?
        Mr. Pierce. I was just going to respond to Mr. Parenteau's
    statement. The fact is that I am not an attorney but I have
    read Justice Kennedy's opinion also. Justice Kennedy is not
    saying all biological, chemical or physical interaction is
    something that brings an area into a water of the U.S. It is
    significant nexus.
        The other point is that the proposed rule right now will
    make things a lot easier because everything that is a physical
    channel will be regulated by the Federal Government. There will
    be no question about that whatsoever.
        If you want to get to the science of protecting water
    quality, you need to go to the dry land and regulate it because
    that is where most groundwater recharge occurs, not in wetlands
    and not in streams. That is where most runoff originates that
    goes into streams that washes down into Narragansett Bay from
    the uplands.
        If you dump material right here on the banks of the Potomac
    that is out of the jurisdiction and nobody is even claiming
    that it is in jurisdiction, it will get into the Potomac River
    far faster than it will if you dump something way up in the
    hinterlands in western Maryland and it has to come all the way
    down and try to get to the Potomac.
        Senator Sullivan. Thank you.
        I want to ask one final question. It goes to some of the
    comments Senator Inhofe made. Ms. Metzger, this is for you, but
    again, any of the panelists can comment.
        Senator Inhofe talked about the role of the States and how
    important that is. It is not just the sense of the Congress in
    terms of this committee, it is actually the foundation of the
    Clean Water Act.
        The beginning of the Clean Water Act stated ``It is the
    policy of the Congress to recognize, preserve and protect the
    primary responsibilities and rights of the States to prevent,
    reduce and eliminate pollution, to plan the development and use
    of land and water resources.''
        Do you think the WOTUS Rule, particularly the way in which
    the consultation provision occurred but more generally,
    overarching aspects of it, do you think that actually fits with
    this policy delineated at the outset of the Clean Water Act?
        Ms. Metzger. I would echo what we have stated before that
    proper consultation with the States really fell short in this
    process. Moving forward, I think even today's panel recognizes
    the diversity of feedback and concerns expressed with
    developing the proposed rule. I think there have even been
    concerns about delaying this even further.
        I think if the proposed rule were to be issued today
    without any further consultation, we would see much more
    significant delays in the form of lawsuits and other measures.
        S. 1140 gives really positive, clear steps forward in
    opening that consultation with the States appropriately and by
    wintertime, we would have more assurance of adequate Clean
    Water Act in the WOTUS definition with which we would feel more
    comfortable.
        Senator Sullivan. Other comments on that question?
        I ask unanimous consent that the following comments from
    the following organizations be included for the record: the
    U.S. Chamber of Commerce, the American Road and Transportation
    Builders Association, American Farm Bureau Federation, Arizona
    Farm Bureau Federation, Portland Cement Association,
    International Council of Shopping Centers, Oklahoma Farm
    Bureau, Kansas Farm Bureau, Public Lands Council, National
    Cattlemen's Beef Association and their State affiliates,
    National Association of Counties, U.S. Conference of Mayors,
    National League of Cities, National Association of Regional
    Councils, a letter signed by over 80 agricultural organizations
    from across the U.S., the Water Advocacy Coalition, a group of
    60 organizations from a diverse group of industries, and a list
    of 188 other organizations who support S. 1140.
        [The referenced information follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Sullivan. Senator Whitehouse, do you have anything
    else you would like to submit for the record?
        Senator Whitehouse. I have a closing comment if I may.
        Senator Sullivan. Yes.
        Senator Whitehouse. The Clean Water Act and clean water
    regulation has, for always since back when it was a common law
    doctrine and through the establishment by Congress of the Clean
    Water Act and through the EPA's administration of that law, had
    the purpose of defending the downstream recipient of upstream
    waste, pollution and bad disposal. That really is at the heart
    of what we need to do.
        I am from Rhode Island. We are a downstream State. Coastal
    States are downstream States. While I appreciate Ms. Metzger's
    concern for the well being of the waterways of Kansas, the idea
    that as a downstream sovereign State, I have to depend on what
    another State does in order to protect the waters that flow
    through me is inconsistent with the entire history of clean
    water regulation.
        I love Massachusetts. They are our neighboring State. Most
    of our rivers start in Massachusetts, but the idea that I, as
    Rhode Island, would be comfortable allowing the Massachusetts
    Department of Environmental Protection or the Massachusetts
    agricultural agency be the only agency that has a word to say
    about how the waters of Rhode Island, how Narragansett Bay, how
    my riparian users are treated, makes no sense. That is not
    acceptable.
        That is not proper federalism. It is not why we set up the
    Federal Government to begin with.
        To me, the notion that the U.S. Government has no role in
    protecting a downstream State and its members from upstream
    pollution is an extraordinary idea. It is an extraordinary
    idea.
        What often goes overlooked here is that those of us who
    want the environmental protection here are actually giving up a
    fair amount in this EPA rule as Professor Parenteau has said
    and as many observers have noted to the problem of under
    inclusion and over inclusion by this regulation.
        There is probably going to be error but there is going to
    be error on both sides. When you look at some of the
    agricultural activities and their capacity for pollution, which
    we are not protected from, when we look at the capacity of
    particular types of storm bursts we are seeing in New England,
    to wash that sort of stuff down predictably, foreseeably, to
    have an effect on our downstream users, I wish Mr. Lemley was
    in Rhode Island because we have great waters too, but he is
    very concerned, as our many people, about what the upstream use
    is.
        There has to be a method by this. There has to be a role
    for EPA, stuff that foreseeably is going go to flow into
    downstream waters has to be protected against in some way, even
    if it is only intermittent flow.
        If you know every September the big storms come through and
    are going to wash all that junk down into the next State's
    waters, that next State needs some place to go. Because State
    interests will always put the interest of their home State
    industries first, it is not adequate for our coastal States to
    count on that.
        I want to make sure that point is clear in the record.
    There are downstream States that need protection and there is
    very substantial under inclusion in the proposed rule as well.
    There is very significant pollution that will still be
    permitted without regulation at all to harm downstream users
    under the proposed rule. We are concerned about that as a
    downstream State.
        I thank all the witnesses and I thank the Chairman for the
    hearing.
        Senator Sullivan. I have one final comment.
        I think Senator Whitehouse raises an important point. I do
    think key elements of S. 1140 actually address the downstream
    issue. We can continue to work on that.
        Let the record reflect that I will leave the record of this
    hearing open for ten additional calendar days in order for
    additional comments to be submitted.
        The hearing is now adjourned. Thank you very much.
        [Whereupon, at 11:34 a.m., the subcommittee was adjourned.]
        [An additional statement submitted for the record follows:]

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

        I am very pleased to be an original cosponsor of the
    Federal Water Quality Protection Act. Let me explain why this
    bipartisan legislation is so incredibly important.
        Last April, EPA and the Corps of Engineers proposed a rule
    that would significantly expand Federal control over land and
    water by expanding the definition of ``waters of the United
    States'' under the Clean Water Act.
        Claiming that this definition imposes no costs on State and
    local governments or small businesses, EPA and the Corps chose
    to ignore the laws and Executive Orders that would have
    required them to develop the proposed rule in partnership with
    States and after evaluating local government and small business
    impacts.
        Instead, they wrote it behind closed doors. The result was
    a disaster and the proposed rule was roundly criticized by
    States, local governments, small businesses, farmers, and many
    others.
        EPA's response to this criticism is very telling. Rather
    than withdrawing their proposal and starting over with the
    input of farmers, small businesses, local governments and
    States, EPA went into campaign mode.
        EPA held over 400 meetings and calls. However, instead of
    acknowledging legitimate concerns, EPA's outreach effort was
    focused on convincing people that EPA knows best. For some
    audiences, their message was: ``The sky is falling. Without
    this rule, we can't protect your drinking water.'' For other
    audiences, particularly farmers, the message was: ``Don't
    worry; the rule will not change anything.''
        Despite all this outreach, EPA has still not responded to
    legitimate questions raised by State and local governments and
    others. In fact, we submitted questions to Administrator
    McCarthy on February 24 and after 3 months we still have not
    received her responses.
        At our February 4 hearing on the rule, EPA Administrator
    McCarthy told Congress they would make changes to address
    concerns, but she also told us that the substance of the final
    rule would not be significantly different from the proposal. It
    is clear that no amount of questions or concerns is going to
    change their minds and Congress needs to provide some
    direction.
        Our legislation does not allow the rule to forward in its
    current form. EPA and the Corps of Engineers will have to go
    back and comply with the laws and Executive Orders that are
    designed to improve regulations and report to Congress on how
    they met those obligations.
        The legislation does not write the rule for them. It does
    not address every water body that might be regulated by the
    Federal Government or left to State regulation.
        But, we do set forth some principles and guidelines for EPA
    and the Corps to follow when they rewrite the rule.
        Importantly, the bill tells EPA and the Corps that they
    need to focus on water bodies. Not puddles, ditches,
    groundwater, and overland sheet flow.
        They also need to focus on the ability of water pollution
    to reach navigable water. This means they cannot use the
    movement of birds, animals and insects, or nature's water cycle
    to create Federal control over land and water. EPA may say that
    all water is connected, but that does not support Federal
    regulation.
        By introducing this bill together, both Republicans and
    Democrats want to make sure that EPA and the Corps actually
    listen to States, local governments and other stakeholders,
    keep their promises, and issue a regulatory definition of
    ``waters of the United States'' that recognizes that Congress
    did not give the Federal Government control over all water.
        I look forward to hearing your thoughts on this
    legislation.

        [Additional material submitted for the record follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

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