[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
  
  
  
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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.
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    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.
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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:]
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    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:]
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