[Senate Hearing 114-146]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 114-146
 
                      WATERS OF THE UNITED STATES:
                      STAKEHOLDER PERSPECTIVES ON
                   THE IMPACTS OF EPA'S PROPOSED RULE

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

                                HEARING

                               before the

                       COMMITTEE ON AGRICULTURE,
                        NUTRITION, AND FORESTRY

                          UNITED STATES SENATE


                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION


                               __________

                             MARCH 24, 2015

                               __________

                       Printed for the use of the
           Committee on Agriculture, Nutrition, and Forestry
           
           
           
  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]          
           
           


        Available via the World Wide Web: http://www.fdsys.gov/
                              ____________
                 
                              
                      U.S. GOVERNMENT PUBLISHING OFFICE
  96-174 PDF                  WASHINGTON : 2016       
_________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
      Internet:bookstore.gpo.gov. Phone:toll free (866)512-1800;DC area (202)512-1800
     Fax:(202) 512-2104 Mail:Stop IDCC,Washington,DC 20402-001                             
                              
                              
                              
                              
        
        
        


           COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY



                     PAT ROBERTS, Kansas, Chairman

THAD COCHRAN, Mississippi            DEBBIE STABENOW, Michigan
MITCH McCONNELL, Kentucky            PATRICK J. LEAHY, Vermont
JOHN BOOZMAN, Arkansas               SHERROD BROWN, Ohio
JOHN HOEVEN, North Dakota            AMY KLOBUCHAR, Minnesota
DAVID PERDUE, Georgia                MICHAEL BENNET, Colorado
JONI ERNST, Iowa                     KIRSTEN GILLIBRAND, New York
THOM TILLIS, North Carolina          JOE DONNELLY, Indiana
BEN SASSE, Nebraska                  HEIDI HEITKAMP, North Dakota
CHARLES GRASSLEY, Iowa               ROBERT P. CASEY, Jr., Pennsylvania
JOHN THUNE, South Dakota

               Joel T. Leftwich, Majority Staff Director

                Anne C. Hazlett, Majority Chief Counsel

                    Jessica L. Williams, Chief Clerk

             Christopher J. Adamo, Minority Staff Director

              Jonathan J. Cordone, Minority Chief Counsel

                                  (ii)
                                  
                                  

  
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing(s):

Waters of the United States: Stakeholder Perspectives on the 
  Impacts of EPA's Proposed Rule.................................     1

                              ----------                              

                        Tuesday, March 24, 2015
                    STATEMENTS PRESENTED BY SENATORS

Roberts, Hon. Pat, U.S. Senator from the State of Kansas, 
  Chairman, Committee on Agriculture, Nutrition, and Forestry....     1
Stabenow, Hon. Debbie, U.S. Senator from the State of Michigan...     2
Boozman, Hon. John, U.S. Senator from the State of Arkansas......     4
Tillis, Hon. Thom, U.S. Senator from the State of North Carolina.     5
Sasse, Hon. Ben, U.S. Senator from the State of Nebraska.........    20
Bennet, Hon. Michael, U.S. Senator from the State of Colorado....    27

                                Panel I

Rutledge, Hon. Leslie, Attorney General, State of Arkansas, 
  Little Rock, AR................................................     6
van der Vaart, Dr. Donald, Secretary, North Carolina Department 
  of Environment and Natural Resources, Raleigh, NC..............     7
Metzger, Susan, Assistant Secretary, Kansas Department of 
  Agriculture, Manhattan, KS.....................................     9
Baldi, Josh, Regional Director, Washington State Department of 
  Ecology, Bellevue, WA..........................................    11

                                Panel II

Padgett, Hon. Lynn M., Commissioner, Ouray County, Montrose, CO..    29
Brodie, Furman, Vice President, Charles Ingram Lumber Company, 
  Effingham, SC..................................................    30
Kinley, Jason, Director, Gem County Mosquito Abatement District, 
  Emmett, ID.....................................................    32
McLennan, Robert ``Mac'' N., President & CEO, Minnkota Power 
  Cooperative, Inc., Grand Forks, ND.............................    33
Metz, Jeff, Owner & Operator, Metz Land and Cattle Co., Bayard, 
  NE.............................................................    35
Peppler, Kent, President, Rocky Mountain Farmers Union, Denver, 
  CO.............................................................    36
                              ----------                              

                                APPENDIX

Prepared Statements:
    Baldi, Josh..................................................    52
    Brodie, Furman...............................................    55
    Kinley, Jason................................................    59
    McLennan, Robert ``Mac'' N...................................    65
    Metz, Jeff...................................................    69
    Metzger, Susan...............................................    74
    Padgett, Hon. Lynn M.........................................    76
    Peppler, Kent................................................   121
    Rutledge, Hon. Leslie........................................   133
    van der Vaart, Dr. Donald....................................   142
Document(s) Submitted for the Record:
Baldi, Josh:
    State of Washington letter...................................   150
Bennet, Hon. Michael:
    Clean Water Rule, letter from CO elected officials...........   157
    Colorado Elected Officials, EPA prepared statement...........   159
    Colorado Clean Water Coalition...............................   162
    Waters of the U.S., letter to Administrator McCarthy, Sec. 
      McHugh and Secretary Vilsack...............................   168
Metzger, Susan:
    Kansas Office of the Governor, prepared statement............   170
Roberts, Hon. Pat:
    National Association of REALTORS, prepared statement.........   185
    Association of American Railroads, prepared statement........   201
    National Cattlemen's Beef Association, prepared statement....   203
    David Sunding, Ph.D., The Waters Advocacy Coalition, prepared 
      statement..................................................   206
Stabenow, Hon. Debbie:
    Arkansas Game & Fish Commission, prepared statement..........   240
    Choose Clean Water Coalition, prepared statement.............   245
    Healing Our Waters Great Lakes Coalition, prepared statement.   249
    ``Harvest and Healthy Waters, Op Ed article by Joe Logan.....   155
    Kansas Department of Wildlife and Parks, prepared statement..   157
    North Carolina Division of Water Quality.....................   159
    North Carolina Wildlife Resources Commission.................   161
    National Wildlife Federation.................................   169
    Sportsmen Organizations......................................   177
    Sportsmen Conservation Organization..........................   179
    Trout Unlimited..............................................   186
    WOTUS sign on letter.........................................   190
    Ohio Farmers Union President Joe Logan.......................   195
Question and Answer:
Brodie, Furman:
    Written response to questions from Hon. Pat Roberts..........   202
Kinley, Jason:
    Written response to questions from Hon. Pat Roberts..........   203
McLennan, Robert ``Mac'' N.:
    Written response to questions from Hon. Pat Roberts..........   204
    Written response to questions from Hon. Debbie Stabenow......   205
Metz, Jeff:
    Written response to questions from Hon. Pat Roberts..........   207
    Written response to questions from Hon. Debbie Stabenow......   208
    Written response to questions from Hon. Joni Ernst...........   209
Metzger, Susan:
    Written response to questions from Hon. Pat Roberts..........   210
    Written response to questions from Hon. Debbie Stabenow......   211
Padgett, Hon. Lynn M.:
    Written response to questions from Hon. Pat Roberts..........   213
    Written response to questions from Hon. Debbie Stabenow......   215
Rutledge, Hon. Leslie:
    Written response to questions from Hon. Debbie Stabenow......   217
    Written response to questions from Hon. Joni Ernst...........   219
van der Vaart, Dr. Donald:
    Written response to questions from Hon. Pat Roberts..........   221
    Written response to questions from Hon. Debbie Stabenow......   223
    Written response to questions from Hon. Joni Ernst...........   225



                      WATERS OF THE UNITED STATES:



                      STAKEHOLDER PERSPECTIVES ON



                   THE IMPACTS OF EPA'S PROPOSED RULE

                              ----------                              


                        Tuesday, March 24, 2015

                              United States Senate,
         Committee on Agriculture, Nutrition, and Forestry,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10:00 a.m., in 
room 106, Dirksen Senate Office Building, Hon. Pat Roberts, 
Chairman of the Committee, presiding.
    Present: Senators Roberts, Cochran, Boozman, Hoeven, Ernst, 
Tillis, Sasse, Grassley, Thune, Stabenow, Klobuchar, Bennet, 
Gillibrand, Donnelly, Heitkamp, and Casey.

 STATEMENT OF HON. PAT ROBERTS, U.S. SENATOR FROM THE STATE OF 
  KANSAS, CHAIRMAN, COMMITTEE ON AGRICULTURE, NUTRITION, AND 
                            FORESTRY

    Chairman Roberts. Good morning. I call this meeting of the 
Senate Committee on Agriculture to order. Today, we will cover 
an important issue that impacts the agriculture sector and all 
of rural America.
    I know that my colleagues on this Committee hear regularly 
from a variety of constituents, whether it be from farmers, 
ranchers, state agency officials, or other representatives, 
about the Environmental Protection Agency's proposed rule that 
redefines ``Waters of the United States'' under the Clean Water 
Act.
    As I have said before, this Committee will be the platform 
for America's farmers, ranchers, small businesses, and rural 
communities. Too often, I hear from my constituents that they 
feel ruled and not governed. The genesis of today's hearing is 
in response to exactly that commitment.
    We have before us two panels of witnesses to provide 
firsthand concerns associated with the EPA's proposed rule on 
clarifying ``Waters of the United States.'' I thank each 
witness for traveling to Washington DC and for providing 
essential testimony before the Committee on such an important 
issue.
    The perspectives we will hear today range from legal 
interpretations of EPA's proposed action, agency officials, and 
state partners who will ultimately be responsible for the 
administration and, yes, enforcement of any changes to the 
Clean Water Act, and key stakeholders that will inevitably have 
to navigate the Clean Water Act permitting process and bear the 
unforeseen costs associated with expansion of what constitutes 
a jurisdictional water under the Clean Water Act.
    Despite EPA receiving over one million comments on this 
proposed rule, we will work to ensure that the voices of our 
constituents and stakeholders impacted by this proposed rule 
are heard by their government.
    I find it particularly troubling that, despite the 
unanimous outcry from a broad coalition of stakeholders and 
industries that have voiced concern about the manner and 
process by which EPA advanced this proposed rule, the EPA 
continues to plunge ahead.
    Just last week, EPA Administrator Gina McCarthy made public 
statements that the Agency is working to finalize the proposed 
rule as early as this spring or summer. However, the 
Administrator did say that they are changing the name of the 
rule from ``Waters of the United States,'' WOTUS--that is the 
acronym--to the ``Clean Water Rule.''
    Well, quite frankly, Administrator McCarthy, merely 
changing the name is not enough. We need to change the rule. If 
you want to protect clean water, it is time to listen and 
change the rule in a manner that allows for public input also 
collaboration and is effective for farmers, ranchers and rural 
America.
    EPA also claims that they have listened to farmers and 
ranchers about the concerns they have raised with the proposed 
rule and all of those concerns will be addressed in the final 
regulation. Other than talking points, the EPA has provided no 
assurances based on concrete evidence to alleviate any concerns 
from the agricultural sector or rural America about this rule.
    Given the economic impact this proposed rule will likely 
impose on farmers and ranchers and rural businesses, I have 
significant concerns about the administration's cost-benefit 
analysis for this rule. The EPA contends that the proposed rule 
would have a minimal economic impact. Many strongly disagree 
with that assertion and a study commissioned by a broad-based 
network of impacted stakeholders, the Waters Advocacy 
Coalition, suggests otherwise. The study raises critical 
questions and criticisms with regard to many assumptions the 
EPA factored into the Agency's cost-benefit analysis.
    If anything, more economic analysis is needed before any 
significant change to the current law is made.
    I look forward to hearing from our witnesses and with that, 
I recognize our distinguished chairperson emeritus, Senator 
Stabenow, for any remarks.

STATEMENT OF HON. DEBBIE STABENOW, U.S. SENATOR FROM THE STATE 
                          OF MICHIGAN

    Senator Stabenow. Thank you, Mr. Chairman, very much.
    We welcome all of our witnesses today to a very important 
discussion on a very important topic for all of us.
    For more than 40 years, the Clean Water Act has been a 
vital tool in promoting the health and livelihood of all 
Americans. Speaking as a Michigan native, those of us in the 
Great Lakes State feel a special connection to water, as you 
can imagine, and a strong appreciation for its importance to 
our everyday lives.
    As chair of the Great Lakes Task Force, I see firsthand the 
effect water has on our economy and our way of life, how it 
sustains our growing agricultural production. In fact, we are 
very proud of what our access to water has allowed us to do in 
terms of diversity of crops and strength of Michigan 
agriculture. It boosts our manufacturing base and powers a 
vibrant tourism industry, and frankly, it is just part of who 
we are in Michigan.
    Of course, quality of water is essential to quality of life 
in every state. All Americans need a clean, reliable source of 
water. It is for this reason we meet today to discuss the 
importance of maintaining the health and integrity of our 
nation's waters in a manner that will not unintentionally 
burden our nation's farmers and ranchers now or in the future.
    Last year, as a result of confusion created by Supreme 
Court decisions in 2001 and 2006, the Environmental Protection 
Agency proposed a rule to define the ``Waters of the United 
States.'' In fact, this is an issue that has been worked on for 
a number of years, with both the previous administration, the 
Bush administration as well as the Obama administration, to 
clarify the confusion.
    Although the proposal was not meant to target agriculture, 
the proposed rule has led many to question its intent as well 
as the standing of agriculture's historic exemptions from Clean 
Water Act regulations.
    In July, July of last year, 2014, I joined several of my 
colleagues in a letter to the EPA and the Army Corps, 
expressing strong concerns with certain parts of their proposed 
rule that we believe require clarification before a final rule 
is published. In the letter, we emphasized the importance of 
clean water and the need for providing certainty to the 
agricultural community. We also asked several hard questions, 
demanding better definitions on key issues that directly affect 
agriculture, including terms like ponds, ditches, and 
floodplains.
    Based on the response I received and several discussions I 
have had with the EPA since then, I believe the appropriate 
changes will be made to ensure that our agricultural producers 
get the certainty they need and that they deserve.
    This is critically important so that our farmers and 
ranchers can continue operating with the confidence that their 
farming activities will not be regulated under the Clean Water 
Act. In fact, I believe we are all committed to making sure 
that is the case.
    Since the Clean Water Act's inception, the vast majority of 
agricultural activities have not been targeted by the EPA and 
states that implement the Act. I do not believe this rule will 
change that fact, and I agree that agricultural producers need 
to feel confident that is the case.
    It is our responsibility to work with the EPA, and Mr. 
Chairman, I certainly want to work with you, to make sure that 
the final rule is clear concerning the historic role of the 
Clean Water Act and agriculture.
    I look forward to working with members of our Committee to 
accomplish this goal so that we can maintain two essential 
needs, two essential needs for our people--clean water and 
agricultural productivity.
    Mr. Chairman, there is a group of letters that I would like 
to submit for the record from sportsmen's groups like Trout 
Unlimited as well as the World Coalition comment letter, Ohio 
Farmers Union, a number of other organizations, who are part of 
the 87 percent of those 1 million comments you talked about 
that actually were supportive of moving forward.
    Chairman Roberts. Without objection.
    [The following information can be found on pages 240 
through 295 in the appendix.]
    Chairman Roberts. I thank the Senator for her statement.
    Welcome to our first panel of witnesses before the 
Committee this morning.
    Senator Boozman.

STATEMENT OF HON. JOHN BOOZMAN, U.S. SENATOR FROM THE STATE OF 
                            ARKANSAS

    Senator Boozman. Thank you, Mr. Chairman, Ranking Member 
Stabenow.
    We want to welcome Attorney General Rutledge from Arkansas 
to testify before the Committee today.
    We appreciate the fact that you have extended the 
invitation for this distinguished witness from Arkansas to come 
up.
    In fact, we thank all of you all for being here.
    Attorney Rutledge was elected our state's 56th attorney 
general last November, and she is the first woman in Arkansas 
history to be elected to this office.
    In her legal career, Ms. Rutledge served as legal counsel 
to the governor of Arkansas, was a prosecuting attorney, and 
provided legal services to the Arkansas Division of Children 
and Family Services, where she advocated for some of our most 
vulnerable young Arkansans.
    Additionally, the attorney general has a personal 
connection to farming and ranching. She grew up on a cattle 
farm near Batesville, Arkansas. So she understands that 
protecting our land and our water is very important to Arkansas 
farm families and farm families in general.
    The attorney general's written testimony highlights a few 
of the serious legal problems with the EPA's attempted power 
grab, and it demonstrates that Arkansas jobs and jobs across 
the country are really at risk if this rule is carried out.
    I appreciate that the attorney general's testimony 
emphasizes that water quality has being well protected in the 
past through cooperation between the states and the Federal 
Government.
    Unfortunately, I have got to--the only problem right now 
with being in the Senate is that you have got all of these 
different things that you have to be at. I am Chairman of a 
subcommittee, Financial Services, in Appropriations.
    So I have got to run out. I will be back in a little bit, 
though, after I rapidly dispense with my committee.
    Welcome to all of you.
    Thank you once again for having our attorney general here 
to testify, Mr. Chairman.
    Chairman Roberts. Ms. Rutledge, thank you very much.
    Thank you very much, Senator.
    Senator Tillis.

 STATEMENT OF HON. THOM TILLIS, U.S. SENATOR FROM THE STATE OF 
                         NORTH CAROLINA

    Senator Tillis. Thank you, Mr. Chairman. Thank you for the 
opportunity to attend this hearing and for the personal 
opportunity for me to introduce one of the members of the 
panel, Dr. van der Vaart, our secretary of the Department of 
the Environment and Natural Resources down in North Carolina.
    Dr. van der Vaart started his career in science about the 
same time that leisure suits and disco were popular. He has 
been in it for a long time. For two-thirds of that time, he has 
been in the State in a very important agency, and he has worked 
his way through that agency.
    He has a Ph.D. in chemical engineering from Trinity 
College, University of Cambridge. He also has degrees from 
University of North Carolina-Chapel Hill and N.C. State, 2 of 
the 3 North Carolina schools in the Sweet 16.
    If you take a look at his CV, I would point out he has 
written extensively on issues related to the environment and he 
spent a career in North Carolina serving under Republican and 
Democrat administrations and has shown a high degree of 
independence throughout that.
    He has written numerous papers, many of which have titles I 
cannot quite pronounce, but he wrote one back in 2005 that I 
think is worth note. It is ``EPA's Startup, Shutdown, and 
Malfunction Policy: The Cart and the Horse Are in the Ditch.''
    I think what strikes me most about Dr. van der Vaart is he 
has shown great independence and he is willing to come before 
this Committee, while serving as a head of an environmental 
agency in North Carolina, and he is here to talk about 
government overreach.
    I hope everybody will listen to his words and his advice. I 
think we can learn a lot from it.
    Thank you, Dr. van der Vaart.
    Senator Stabenow. Mr. Chairman, might I have a word of 
personal privilege.
    Chairman Roberts. Yes. The Senator is recognized.
    Senator Stabenow. I just want to recognize also that 
Michigan State University is in the Sweet 16. We will see you 
there.
    [Laughter.]
    Chairman Roberts. I am happy to introduce to the Committee 
today, Ms. Susan Metzger, who serves as the Assistant Secretary 
of the Kansas Department of Agriculture.
    Susan and I say ``Go Shockers.'' A very unusual team, they 
play basketball like it should be played.
    We are a little off-topic here.
    Ms. Metzger brings a wealth of experience and knowledge 
about the topic of today's hearing. Prior to her role at the 
Kansas Department of Agriculture, Ms. Metzger served as Chief 
of Planning and Policy at the Kansas Water Office for 11 years.
    One thing you may not know about her is that she is a 
licensed professional wetlands scientist.
    I look forward to Susan's testimony and insight.
    I would also like to introduce Mr. Josh Baldi, who 
currently serves as the Regional Director of the Washington 
State Department of Ecology. Previously, Mr. Baldi has served 
in several capacities at the Washington State Department of 
Ecology as well working in the conservation nonprofit sector.
    Mr. Baldi, welcome, and I look forward to your testimony.
    Ms. Rutledge.

 STATEMENT OF THE HONORABLE LESLIE RUTLEDGE, ATTORNEY GENERAL, 
                       STATE OF ARKANSAS

    Ms. Rutledge. Good morning, Chairman Roberts, Ranking 
Member Stabenow, members of the Committee.
    I am Leslie Rutledge, attorney general of Arkansas. It is 
an honor to appear before this Committee that includes my own 
Senator, John Boozman.
    As Arkansas' chief legal officer, I wish to raise concerns 
with the proposed rule to amend the definition of ``Waters of 
the United States'' under the Clean Water Act and the practical 
effects this unlawful expansion of Federal jurisdiction will 
have on the Delta Farm Region of East Arkansas and the timber 
industries of the Southwest.
    I grew up on a cattle farm near Batesville close to the 
White River and understand the impact this proposed rule would 
have on agriculture.
    The Clean Water Act achieves its regulatory goals through 
jurisdiction of our navigable waters, which it defines as 
``Waters of the U.S.''
    The EPA and the Corps of Engineers have attempted to define 
and interpret ``Waters of the U.S.'' through regulation. Often, 
the agencies' interpretation was applied too broadly and was 
struck down by the Supreme Court.
    Recently, in the Rapanos case, a test emerged that requires 
the water or wetland in question to possess a significant 
nexus, or connection, to traditionally navigable waters. The 
agencies assert that the proposed rule is necessary to clarify 
the test, but nothing in the proposed rule offers clarity. 
Instead, it is complicated, overreaching, and infringes on 
states' rights.
    First, the proposed definition of a tributary goes beyond 
the significant nexus test.
    In Rapanos, Justice Kennedy stated that the Clean Water Act 
would not apply to drains, ditches, and streams remote from any 
navigable waters and carry only minor water volumes toward it.
    However, the agencies expand the definition of tributary to 
include waters that contribute flow, whether directly or 
through another source. Even a trickle or roadside ditch can be 
characterized as flowing water. An irrigation canal running 
through a farmland to a local creek could be covered under the 
proposed rule in direct contradiction of Justice Kennedy's 
holding.
    Second, the proposed case-specific determination of what 
qualifies as a significant nexus is vague and ambiguous, 
causing confusion and extra cost for states and business 
owners.
    The Supreme Court has stated that administrative rules 
cannot be so vague that they fail to provide a reasonable 
opportunity to understand what is prohibited. The vague terms 
used in the proposed rule would confuse a reasonable person.
    Farmers and business owners should not have to wait until 
faced with a penalty to learn that the stream or wetland on 
their property falls under the Clean Water Act. Regardless of 
size, no farm or ranch can operate under such conditions.
    At the same time as this rule was proposed, the agencies 
released an interpretive rule to clarify normal farming 
practices.
    The Delta Region is home to advanced farming technologies 
that are cutting-edge and not considered normal in other parts 
of the country but provide benefits to our farmers and the 
environment through efficient use of water and fertilizer.
    Although the rule was withdrawn, it is an example of the 
EPA to arbitrarily expand the Act without public notice and 
comment.
    The scope of the proposed rule will have negative impacts 
on Arkansas beyond the legal arguments. In 2012, agriculture 
added over $20 billion to the Arkansas economy; that is 18 
cents of every dollar added, 1 in every 6 jobs. Arkansas is 
first in rice production, third in cotton, fifth in timber, and 
tenth in soybeans and grains. Clearly, overreaching 
administrative rules would put this sector of our economy in 
jeopardy.
    As the first conservationists protecting the land and 
water, farmers and ranchers want to follow the law. Restrictive 
and confusing administrative rules will inhibit their ability 
to farm and drive future generations out of agriculture, 
ultimately impacting the food supply of all Americans.
    My office has urged the agencies to withdraw the rule and 
will pursue all legal challenges necessary to prevent an 
unlawful rule from impacting the State of Arkansas.
    Thank you, again, Mr. Chairman for the opportunity to 
appear before you today.
    This concludes my testimony, and I am happy to answer any 
questions that you or other members of the Committee may have.
    [The prepared statement of Ms. Rutledge can be found on 
page 133 in the appendix.]
    Chairman Roberts. We thank you very much for your 
testimony.
    Secretary van der Vaart.

 STATEMENT OF DONALD VAN DER VAART, SECRETARY, NORTH CAROLINA 
        DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES

    Mr. van der Vaart. Chairman Roberts, Ranking Member 
Stabenow, and members of the Committee, thank you for inviting 
me to testify today.
    Governor Pat McCrory, Agriculture Commissioner Steve 
Troxler, and I would like to recognize Senator Tillis, who sits 
on this Committee, and thank him for being such a great 
advocate for North Carolina's agricultural industry.
    As Secretary of the North Carolina Department of 
Environment and Natural Resources, I appreciate the opportunity 
to share my views on the topic of the proper definition of 
WOTUS, particularly as it affects the agricultural industry in 
North Carolina.
    I would note that my remarks today are consistent with the 
positions taken by the North Carolina Department of Agriculture 
and Consumer Services on these proposed rules.
    The agricultural industry contributes approximately $78 
billion to our state economy annually and employs 16 percent of 
the workforce. North Carolina's 52,000 farmers grow more than 
80 different commodities and utilize more than a quarter of the 
state land to furnish consumers a dependable and affordable 
supply of food and fiber.
    We are greatly concerned that the proposed rule will cause 
this important industry, and other significant segments of our 
state's economy and infrastructure, to fall victim to ever-
expanding Federal overreach that will unnecessarily stifle 
economic growth and prosperity with little, if any, 
environmental benefit.
    The Clean Water Act delegates primary responsibility for 
managing land and water resources to the states. North 
Carolina, like many other states, has programs in place to 
protect water quality that are comprehensive and sophisticated. 
Our effective regulatory framework nullifies any justification 
for the Federal agencies' proposed expansion of the meaning of 
WOTUS.
    I agree with other stakeholders, including the North 
Carolina Farm Bureau, that expanding the definition will likely 
be particularly problematic for farmers, especially those in 
Eastern North Carolina. If the proposed rule goes into effect 
in its current form, large swaths of farmland could become 
WOTUS, and land that is close to those newly determined waters 
could also be subject to state and Federal regulatory programs.
    One way the EPA proposal will subject farms in North 
Carolina to more pervasive Federal intrusion is through the 
newly proposed definition of ``adjacent.'' The proposed 
redefinition adds the extreme and the entirely new terms, 
``riparian areas'' and ``floodplains'' and ``surface'' or 
``shallow subsurface hydrologic connection'' as a basis for 
inclusion into features into the jurisdiction.
    Their definitions for floodplain and riparian area are both 
exceedingly elastic, providing no time reference or limitation 
on scope, and leaving critical determinations ultimately to be 
made by the EPA.
    The effect of these proposed definitions will be akin to an 
unfunded mandate. Many more waters will be brought into the 
Clean Water Act jurisdiction, requiring the issuance of more 
Federal and state permits. Increases in state permit 
applications will further tax our limited state resources. 
Additional permitting requirements and added costs will apply 
not only to the agricultural industry but will span many other 
sectors, including construction, manufacturing, transportation 
and tourism industries as well as local governments.
    North Carolina already has regulatory programs in place for 
the protection of our surface and groundwater resources. The 
inclusion of many more features within the scope of WOTUS will 
trigger the applicability of these exclusively state law-based 
programs on areas that were never intended to be regulated.
    The lack of EPA's transparency during this rule development 
is also deplorable. The EPA assembled maps that demonstrate the 
massive Federal takeover of dryland in America, but the Agency 
was reticent to make them public. It was only in response to 
questioning at the congressional hearing in July of 2014 that 
the EPA admitted they had even assembled these maps which show 
that, for example, almost all of North Carolina could be 
considered to be streams and water bodies under the new rule.
    Finally, there are legal concerns to consider as well. If 
EPA, based on the claim of statutory ambiguity, moves forward 
with this new interpretation, claiming that drylands are 
navigable waters, it will yet be another example of the EPA 
abusing the public trust it was granted by the judiciary 
through the Chevron decision. This raises the question of 
whether the EPA should be afforded any deference in 
interpreting statutory provisions.
    Simply stated, before EPA buries the most efficient and 
productive farmers in the world with red tape, I would urge 
them to sit down with scientists and engineers that actually 
implement these rules and listen to what they have to say.
    Thank you for the opportunity to provide this testimony, 
and I would be happy to answer any questions you may have.
    [The prepared statement of Mr. van der Vaart can be found 
on page 142 in the appendix.]
    Chairman Roberts. Thank you, Mr. Secretary.
    We are under very strict time restrictions because we have 
10 witnesses and we have votes at noon.
    Secretary Metzger.

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

    Ms. Metzger. Thank you, Mr. Chairman, and thank you for the 
opportunity to appear today and share Kansas's perspective on 
the impact of the Clean Water Rule on Kansas agriculture and 
water management.
    According to the EPA web site on the Clean Water Rule the 
rule is purported to help states manage their water resources 
and will not broaden the coverage of the Clean Water Act. I am 
here today to testify that presumption is not true when 
describing the rule's application in Kansas.
    We contend that while certain tributaries are ``Waters of 
the U.S.'' under the existing regulation, the proposed rule 
gives a regulatory definition of tributary that covers waters 
to include all streams with or without flow. There will be no 
more need to make a significant nexus determination for dry 
streams or their adjacent waters because the rule automatically 
considers them to be ``Waters of the U.S.''
    Applying this blanket definition of tributary in Kansas 
will result in a nearly 460 percent increase in the number of 
stream miles classified as ``Waters of the U.S.'' in Kansas, 
subject to all programs and provisions of the Act.
    A nationally defined one-size-fits-all definition for terms 
like ``tributaries'' is not appropriate given the scarcity of 
flow in western states, such as Kansas, and the inherent 
variability of those streams to impact downstream waters.
    Rainfall across Kansas ranges from about 15 inches or less 
with our border with Colorado to more than 40 inches in 
Southeast Kansas.
    Low rainfall in the west combined with deep depths to the 
high plains aquifer make all but the major streams in the west, 
ephemeral, with their channel beds permanently above the water 
table. These streams, now and forever, only flow in response to 
localized rainfall. Yet, under the proposed rule, any stream 
with a bed, bank, and ordinary high-water mark will be deemed a 
tributary and, in such, considered jurisdictional under the 
Act.
    In 2001, the Kansas legislature defined a classified stream 
for purposes of applying the Clean Water Act and water quality 
standards in implementing programs. The statute and associated 
regulations directs protection and water quality to the State's 
significant water resources while, logically, excluding 
ephemeral streams, grass, vegetative or other waterways, 
culverts, and ditches.
    Kansas has demonstrated great success in managing our water 
resources through the implementation of locally driven water 
quality plans. Kansas has produced improvements in water 
quality, including the removal of several water bodies from the 
State's list of impaired waters. These improvements are the 
result of appropriate, positive coordination of state agencies 
with local jurisdictions and individual landowners.
    The proposed rule and the intervention of Federal agencies 
into management of marginal waters will degrade those positive 
relationships.
    The distraction and diversion brought forth by this rule 
will incur additional expenditures at the state level for 
marginal environmental benefit and diminished success in water 
quality improvements in Kansas.
    The inevitable slowdown in permit reviews and increase in 
bureaucratic paperwork will unnecessarily delay and deter 
economic growth and impede the adoption of soil and water 
conservation practices by the farmer and ranchers of Kansas
    As shared during the public comment period by many of the 
agriculture-related organizations and state agencies in Kansas, 
as well as Governor Sam Brownback, we request the proposed rule 
be withdrawn and any future discussions begin anew with the 
full consultation and advice of the State.
    Mr. Chairman, as we saw with the now withdrawn interpretive 
rule, Federal rulemaking without proper consultation with the 
states lead to unintended consequences.
    I believe that today's panel discussion restores state-
level discussion toward the development of a better, meaningful 
rulemaking under the Act. We hope that the states, as primary 
implementers of the Act, begin to have a significant role in 
crafting the future of rules by the Federal agencies.
    Thank you for the opportunity to share Kansas's 
perspective.
    [The prepared statement of Ms. Metzger can be found on page 
74 in the appendix.]
    Chairman Roberts. We thank you for your testimony.
    Mr. Baldi.

 STATEMENT OF JOSH BALDI, REGIONAL DIRECTOR, WASHINGTON STATE 
                     DEPARTMENT OF ECOLOGY

    Mr. Baldi. Chairman Roberts, Ranking Member Stabenow, 
members of the Committee, thank you for the opportunity to 
testify before you today.
    The region I oversee in Northwest Washington includes a 
large portion of Puget Sound, is home to Washington's tech and 
aerospace industry, and is also an important part of the 
State's $49 billion agricultural sector. Notable commodities 
produced in the region are milk, nursery, potatoes, and we are 
the nation's leader in raspberry production. Washington State 
is also renowned for unique resources such as shellfish and 
salmon, which are important to our economy, way of life, and 
tribal cultures.
    As the water quality authority for Washington State, 
Ecology is responsible for implementing all Federal Clean Water 
laws and regulations, including 401 water quality 
certifications for Federal Clean Water Act Section 404 permits.
    Ecology was one of 4 Washington State agencies that signed 
a consensus comment letter on November 12, 2014, expressing 
support for the Corps and EPA to clarify the definition of 
``Waters of the U.S.'' The other signatory agencies were the 
State Departments of Transportation, Fish and Wildlife, and 
Agriculture. That comment letter has been submitted for the 
record.
    We appreciate the Corps' and EPA's attempts to clarify 
jurisdiction for ``Waters of the U.S.'' through the proposed 
rule. As the Federal agencies worked through the public comment 
process last summer and fall, we have been appreciative of 
their interaction with the states. Work does remain, but the 
EPA, in particular, has been responsive to many of the concerns 
that have been raised.
    Ecology believes the rule helps to clarify what types of 
water would be considered jurisdictional under the Clean Water 
Act and, specifically, where proponents may need Section 404 
permits from the Corps and related Section 401 water quality 
certifications from the State. The increased clarity provided 
by the proposed rule should help increase predictability and 
streamlining where permits are justified.
    The proposed rule does not resolve all the uncertainty over 
what ditches are jurisdiction. So case-by-case determinations 
will still be needed. However, the rule attempts to narrow the 
number of individual jurisdictional calls needed by identifying 
those ditches that are clearly non-jurisdiction, such as those 
excavated in, and draining only, uplands.
    As a practical matter, the types of waters that the rules 
identifies as the ``Waters of the U.S.'' are consistent with 
the jurisdictional calls that we have seen in practice by the 
Corps in Washington State for many years. Consequently, the 
rule will not result in regulatory change for permittees in our 
State.
    At the Federal level, we also do not believe the proposed 
rule affects the existing broad exemptions under the Clean 
Water Act for farming and ranching activities. Under the 
``Waters of the U.S.'' Rule, some farm ditches may be 
jurisdictional tributaries, but maintaining them in the course 
of normal agriculture does not require a Section 404 permit.
    The rule does acknowledge that some ditches are tributaries 
that should be protected. Some Washington ditches are actually 
channelized streams, and as such, they are appropriately 
designated as tributaries.
    In our experience, the Corps has not exerted jurisdiction 
over ditches that are not streams or which drain only uplands.
    Ecology believes there are some definitions that can, and 
should, be further refined on a regional basis. We recommend 
development of these regional appropriate definitions of 
matters such as floodplains and riparian areas so that state 
and Federal agencies have a common understanding of those 
terms.
    In closing, Washington State supports the proposed rule 
because efforts to date between Federal agencies and the states 
have been interactive and positive. Additional work does 
remain, but we would like to build upon that interagency 
cooperation.
    The proposed rule will clarify that a small, but important, 
number of streams and wetlands deserve coverage under ``Waters 
of the U.S.''
    The increased clarity sought in the rule will help create a 
more predictable and efficient permitting system.
    Lastly, the approach embodied in the EPA and Corps proposed 
rule adheres closely to the system Washington State has had in 
place for more than 25 years. It is an approach that has worked 
for people, farms, and fish, and we believe Washington State's 
approach can be strengthened by the proposed rule.
    Thank you for the opportunity to appear before this 
Committee and share our State's perspective on this important 
rule.
    [The prepared statement of Mr. Baldi can be found on page 
52 in the appendix.]
    Chairman Roberts. I ask unanimous consent to enter the 
following into the hearing record: A statement on behalf of the 
Association of American Railroads, a statement on behalf of the 
National Cattlemen's Beef Association, a statement on behalf of 
the National Association of Realtors, and a study entitled 
``Review of 2014 EPA Economic Analysis of the Proposed Revised 
Definition of Waters of the U.S.,'' without objection.
    [The following information can be found on page 185 through 
206 in the appendix.]
    Chairman Roberts. Secretary Metzger, simply put, given your 
role at the Kansas Department of Agriculture, what do you hear 
most from producers in Kansas about the proposed rule?
    Ms. Metzger. Well, 90 percent of the land use in Kansas is 
devoted to agricultural production. So, mostly, we hear that 
any expansion has a great impact on the land use in Kansas. We 
rank third in the nation in agricultural production of acres in 
land use.
    I would say the primary concern that we hear is that the 
expansion of those waters that are now classified as ``Waters 
of the U.S.'' and fall under Federal jurisdiction means an 
expansion of potential Federal oversight into basic water 
management and land management from an agricultural 
perspective.
    I also hear increasing reluctance from producers to 
participate in Federal cost-share programs for conservation 
practices as a result of the proposed rule.
    Chairman Roberts. Thank you for that.
    To date, the EPA has not released any mapping capabilities 
associated with the proposed rule to illustrate exactly what 
water bodies they are trying to capture.
    Given what you know today, how many water bodies in Kansas 
do you think will be considered ``Waters of the U.S.'' and how 
will this impact an agriculture producer in Kansas?
    Ms. Metzger. Sure. Mr. Chairman, today, under the existing 
regulation, we classify ``Waters of the U.S.'' to be those 
classified streams in Kansas. Those are those water bodies with 
a designated use according to Kansas statute, which is about 
30,400 stream miles in Kansas.
    In the absence of a map or different information from the 
EPA, we are going by what we consider to be the definition as 
described in the proposed rule and using the national 
hydrographic database. Using that and the defined streams in 
Kansas would result in an increase of those ``Waters of the 
U.S.'' now being around 170,000 stream miles. So that is where 
we come up with the 460 percent increase in classified waters 
or ``Waters of the U.S.''
    Again, that reaches now into water bodies throughout 
Western Kansas and has a significant impact not only in 
traditional Clean Water Act 404 regulations but then bleeds 
into pesticide applications and NPDES permits and livestock 
waste management.
    Chairman Roberts. Well, let the record show we have not had 
much water in Western Kansas for three years, but we hope that 
changes.
    This is for the entire panel:
    What economic impacts would this proposed rule have on your 
state?
    Would any other industries that support rural America be 
affected?
    Would there be any potential impacts on the number of acres 
in production or an adverse impact on land values because of 
the regulatory burden associated with this proposed rule?
    Ms. Rutledge.
    Ms. Rutledge. Thank you, Mr. Chairman.
    I believe that the economic impact alone could be 
devastating for Arkansas, particularly, as I mentioned in my 
statement, the eastern part of Arkansas. Again, Arkansas is 
first in rice, third in cotton, fifth in timber, tenth in 
soybeans and grains. The Delta Region of Arkansas would simply 
be crippled.
    If you are a farmer in Arkansas, trying to determine 
whether or not one of your fields would fall under this 
proposed rule, you would look to this. I hold not a copy of 
``War and Peace,'' not a copy of the ``Good Book,'' but a copy 
of the proposed rule. Nearly every farmer in Arkansas would 
have to obtain legal counsel to determine whether or not a 
field on their land falls under this EPA proposed rule.
    Chairman Roberts. Can you hold that a little higher?
    Ms. Rutledge. I do not know that my muscles can, sir, but I 
will try.
    Chairman Roberts. We will have a little exercise, if you 
can wave that around.
    Secretary van der Vaart.
    Mr. van der Vaart. Well, I would like to add to comments 
already made. In looking at North Carolina's--or, I should say 
EPA's view of, North Carolina's wetlands, which has massively 
expanded how we regulate them a concern that has not been 
raised so far is the uncertainty and the devaluation in land 
prices that uncertainty will bring.
    If farmers need to go to the bank, the uncertainty will 
bear a cost. Their land values clearly will go down until this 
is all sorted out, and that results in a reduction in the 
farmers ability to expand their operations.
    Chairman Roberts. Susan, I think your testimony pretty well 
covered it. Do you want to add something real quick?
    Ms. Metzger. Sure. Thank you, Mr. Chairman.
    I might note from our State's perspective we do spend about 
$300,000 every year on our classified waters, monitoring them, 
and updating our use attainability analyses. If this rule is 
adopted, that would certainly expand our universe of those 
waters and need to expend state limited resources on those use 
attainability analyses.
    Chairman Roberts. Mr. Baldi, you are for this rule, and you 
want to build on it. Any comment on my question?
    Mr. Baldi. Just again, in the State of Washington, we have 
been implementing a system with the Federal Corps and EPA for 
about 25 years that is very similar.
    We believe this rule clarifies our approach in Washington 
State. The Federal Clean Water Act clearly exempts from 
permitting under Section 402 and 404 permits.
    We do not see this proposed rule as changing that.
    Chairman Roberts. Senator Stabenow.
    Senator Stabenow. Thank you, Mr. Chairman.
    First, let me say one of the things that I think is 
important just to emphasize we certainly want clarity. We 
certainly want agriculture not to have the impacts you are 
talking about.
    The good news is, Ms. Rutledge, what you held up. All the 
historic agricultural exemptions are in there. So that is the 
good news--that, in fact, if you are in agriculture, those 
exemptions are in there, and we want to make sure they are in 
there, and the fact that we want to make sure that we are 
clarifying so that our farmers have the certainty that they 
need.
    Mr. Baldi, could you talk a little bit more about what, if 
any, practices that you have, as it relates to regulating 
agriculture, would change under the proposed rule?
    Mr. Baldi. Yeah. In general terms, the agricultural 
community is encouraged to implement best management practices 
through 319 funding, other funding sources, in terms of the 
exclusion rules for Section 402 and 404.
    Again, clearly, we do not believe that any additional 
permitting would result from this rule.
    It is important to note that concentrated animal feeding 
operations, are not exempt. Those require NPDES permits in the 
State of Washington. There are 11 facilities that are covered 
under the CAFO permit. But that is the only Federal regulation 
through permits that we do in the agricultural sector in the 
State of Washington.
    Chairman Roberts. That is current law, correct?
    Mr. Baldi. Correct.
    Senator Stabenow. That is under current law.
    Mr. Baldi. Correct.
    Senator Stabenow. So that would not change.
    Did you have concerns about the proposed rule?
    I am wondering if you felt that you were heard by the EPA 
and the Army Corps as it relates to the outreach and the 200 
and, I think it is, 7 days of input that they have received on 
the comments.
    I mean, do you think that the final rule is going to 
reflect the concerns that you raised, if you raised any?
    Mr. Baldi. We certainly raised concerns early in the 
process. When the Corps and EPA announced this rule, like the 
members of the Committee, like the other states, we had 
significant concerns with the original proposal that was 
introduced last summer.
    Perhaps in response to this Committee's intervention or 
perhaps just in response to the outcry, subsequent late summer/
fall, EPA in particular; they held webinars. They had 
conference calls. They met in person. They really doubled their 
efforts, in our opinion, to work with the states and listen to 
the states and be responsive, working towards clarification.
    As has been mentioned, we believe there are some additional 
details that could be worked out--regional details. There are 
regional differences.
    There has been other types of rulemaking, such as the 
electronic reporting for the NPDES rule, that EPA has worked 
very closely with the states to finalize that e-reporting rule. 
We would recommend as they finalize that rule that they engage 
in a similar process to recognize regional differences for the 
proposed ``Waters of the U.S.'' Rule.
    Thank you.
    Senator Stabenow. Thank you very much.
    For Ms. Rutledge and Secretary van der Vaart and Ms. 
Metzger, I think it is important to clarify sort of the 
historical positions of your states because after the 2001 
Supreme Court decision that limited the reach of the Clean 
Water Act the EPA, at that time under the Bush administration, 
began writing a rule in response to the decision. Many states, 
including each of your states, submitted comments to the EPA in 
2003, asking the Agency not to reduce the jurisdictional reach 
of the Clean Water Act.
    In fact, Mr. Chairman, I want to submit those letters for 
the record.
    [The following information can be found on page 245 in the 
appendix.]
    Senator Stabenow. We have, in fact, in there, North 
Carolina specifically asked the EPA to allow the Clean Water 
Act jurisdiction over ``intermittent and small perennial 
streams.''
    Kansas defended the Clean Water Act jurisdiction over 
``isolated, interstate, non-navigable waters.''
    Arkansas argued against the EPA reducing the Clean Water 
Act reach over any areas they currently regulated before the 
court case, including ``perennial, intermittent, and ephemeral 
streams and wetlands.''
    Arkansas specifically stated, ``In 1985, the Supreme Court 
upheld Congress's grant of broad jurisdiction based on the 
recognition that all waters are connected. The narrow Swank 
decision should not completely undermine that previous broader 
ruling.''
    So that is clearly different.
    I realize there has been a second decision that muddied the 
waters even more in terms of confusion, but this seems to be 
the opposite of what you are saying today. So I am wondering 
about the reason for the reversals.
    Mr. van der Vaart. Senator Stabenow, from North Carolina's 
viewpoint, we do not see that as a reversal. The position back 
then is, in fact, not consistent with the proposed rule.
    The proposed rule far expands jurisdictional waters from 
the heady days of early 2000. We do regulate intermittent 
streams in North Carolina, but that is not the limit of the 
definition in the proposed rule.
    So we think we are being consistent.
    Ms. Metzger. Great. Thank you, Senator Stabenow.
    I would concur that Kansas appreciated that there was the 
effort in the past two years to provide some additional clarity 
on ``Waters of the United States.'' We were offered the 
opportunity to provide that input. We provided that input both 
as a State and through the Western States Water Council.
    We do not believe that what is embodied now in the proposed 
rule reflects the concerns and the ideas that we brought 
forward at that time.
    In fact, after 2001, when we adopted our state regulations 
for defining classified waters and asked the EPA to review 
those, they provided a concurrence on the waters that we 
defined to be classified waters and ``Waters of the United 
States'' and agreed with our exemption of certain ephemeral 
waters from that. We feel that this proposed rule goes back on 
that agreement.
    Ms. Rutledge. Senator Stabenow.
    Senator Stabenow. Yes.
    Ms. Rutledge. I thank you for the question.
    Yes, this proposed rule goes far beyond the intent of 
Congress and the Clean Water Act. It flies in the face of the 
Congress. It flies in the face of the judiciary in the Rapanos 
holding, which was a plurality holding; so it is not majority 
law.
    What is being proposed by the EPA expands so far beyond 
that it includes waters that might flow into the waters 
whereas, before, it was a set piece of water, and I think that 
is the difference that you have seen, as Mr. Secretary pointed 
out, that this is such a great expansion of the rule.
    I conclude with the confusing rule before us and that 
clarity--it does not provide clarity. It provides confusion, 
and it would violate the due process of those in our State.
    Senator Stabenow. Thank you.
    Chairman Roberts. It would appear that was then, and then 
is now.
    Senator Tillis.
    Senator Tillis. Thank you, Mr. Chairman.
    In the case of Secretary van der Vaart, back then, he was 
in the same department that he is now the head of now, and I am 
glad that you were able to make that clarification with respect 
to the prior question asked.
    Before I get to my question, I do want to make the 
statement that we are talking about the uncertainty and the 
cost within the agriculture sector, but this rule goes far 
beyond that. If you take a look at transportation costs, 
infrastructure costs, this is a significant, potentially 
unfunded, certainly unfunded, mandate to the states. I think it 
is disruptive.
    While I was serving as the Speaker of the House just last 
year, I recall us having discussions about this. Preparing for 
it as a state, I think is problematic.
    Secretary van der Vaart, the question I had for you: The 
EPA says that the proposed rule does not really change the way 
they have been implementing the Clean Water Act. I assume that 
you disagree with that.
    Can those of the panelists who also think that this is a 
significant change give me some ideas of why you feel that way?
    We will start with you, Secretary.
    Mr. van der Vaart. Right, and that is puzzling to me 
because, first of all, the proposal itself is very vague. So it 
is not absolutely clear what in the world it does say other 
than it provides the EPA a lot of discretion, and perhaps 
through third-party suits, to further extend the ideas of 
navigable waters.
    But, nevertheless, the EPA did assemble, in spite of saying 
that it is all the status quo, these maps which do not 
represent the current extent regulation in North Carolina, the 
scope of which has been approved by the EPA.
    We have agreed with the Wilmington District of the Army 
Corps of Engineers when we issue 401 certifications. The Corps 
issues the 404. We have an understanding; the understanding is 
not this map.
    All I can conclude is that the EPA, if we are to believe 
this has done an abysmal job of enforcing the Clean Water Act 
on their own. If they think that they are consistent in any 
way, shape, or form with this proposal--that is, the status quo 
is consistent--then they have done an abysmal job of 
implementing the Clean Water Act.
    Senator Tillis. Any other panelists have anything to add?
    Ms. Metzger. Thank you, Mr. Tillis.
    From Kansas's perspective, our interpretation is it is a 
substantial increase in the miles of waters that are now going 
to be under Federal jurisdiction. We contend we have been doing 
a remarkable job of protecting the waters in Kansas. This new 
Act will now divert resources from getting a job well done to 
waters that have marginal impact on the improvement of our 
water resources.
    Senator Tillis. Ms. Rutledge.
    Ms. Rutledge. In Arkansas, we have a number of state 
agencies that oversee water and clean water and clean air, 
including the Arkansas Department of Environmental Quality, the 
National Resources Commission, and Oil and Gas Commission, to 
name a few.
    Likewise, in all 75 counties in Arkansas, we have 
conservation districts. These are local controlled. They know 
exactly what is going on. They talk to the farmers. They talk 
to the landowners and the business owners in their area. They 
are elected from those bodies. So they know the land, and they 
know the complications, and they are very protective of their 
land because it is a way of life.
    So what the EPA has done, as I have said, is gone beyond 
the scope of the intentions of the Clean Water Act and has 
created something so vague that it cannot be followed.
    Senator Tillis. Mr. Baldi.
    Mr. Baldi. Again, as mentioned in testimony, there are 
clearly regional differences here. The system we have been 
implementing in the State of Washington for more than 25 
years--our understanding is this would be very similar to what 
we are currently implementing.
    EPA has estimated that the rule may result in an additional 
3 percent of permittees.
    Senator Tillis. Mr. Baldi, if I may because I am about to 
run out of time, I want to ask one other question. It relates 
to something that your State has determined was necessary to 
manage water quality in your State, and so the--what I am 
trying to get to is it appears as though rules that you have 
decided to apply in Washington that may make sense based on the 
geography in the region that you are in now are going to be 
applied more on a national basis.
    Is that a fair assessment, to kind of compare Washington 
policy to the rest of the nation?
    Mr. Baldi. Well, that is what we have mentioned. One of the 
pieces that needs to be worked out is the regional definitions 
for the different states. So we would encourage the Federal 
agencies to continue working with the states. That may address 
some of the concerns you have heard from the other panelists.
    Senator Tillis. Mr. Chairman, my time is about out. I am 
going to honor the time commitment.
    I hope at some point we can have a discussion about the 
Chevron deference and how it plays into this.
    Thank you.
    Chairman Roberts. Next we have Senator Klobuchar.
    Senator Klobuchar. Well, thank you very much, Mr. Chairman, 
and thank you for holding this hearing and to all the witnesses 
that are here.
    I especially want to acknowledge on the second panel--I 
have two other hearings going on, so I do not know if I will 
quite make it back, but--Robert McLennan. He is the president 
and CEO of Minnkota Power Coop, which serves more than 125,000 
customers in both Northwestern Minnesota and Eastern North 
Dakota. Anyone that can straddle Minnesota and North Dakota 
must be pretty smart. So we welcome him here today.
    I also wanted to note I know there will be a witness from 
the counties, but I have heard a lot of concerns about this 
from our rural counties as well as our farmers, and I just 
wanted to note that. I told them I would share.
    As we know, this proposed rule, in the wake of the two 
Supreme Court cases, created significant uncertainty for states 
and businesses and ag. We know there are also issues with these 
rules.
    I have been one that has written letters and called. One of 
the things--I am still trying to go back and forth.
    I know that you, Ms. Metzger and Ms. Rutledge, said it is 
better to actually scrap the final rule.
    I think you, Mr. Secretary van der Vaart, have a little 
different view.
    Could I just hear that debate? I have a specific question I 
want to ask, but I guess I would start with you, Ms. Metzger.
    Ms. Metzger. Sure. Thank you, Senator.
    Our decision for just completely rescinding the rule and 
starting from ground zero is at this point it is all in the 
hands of the agencies, of coming back and deciding what they 
have heard from us and putting that into writing. There is 
certainly a level of mistrust and uncertainty of what that 
actual proposed rule would look like and if it would actually 
reflect the changes that we have recommended.
    I think we have seen from the panel, just with the four of 
us, there is such diversity in our regions that the best 
approach is to sit with us in a room and craft it out together.
    Senator Klobuchar. Okay. Secretary?
    Mr. van der Vaart. Well, I am afraid we are in favor of 
scrapping this rule. We are worried about the lack of 
transparency that the EPA followed. So we very much, as I said 
in my statement, would love to sit down with the EPA and 
develop this, using our scientists' and engineers' experience, 
who are the ones who actually are on the ground, implementing 
these rules day to day.
    Senator Klobuchar. Okay. So you do not think exemptions or 
changing the rule would be better than just sort of going with 
the uncertainty from before?
    Mr. van der Vaart. Well, the uncertainty is amplified under 
the current rule.
    Certainly, everybody likes certainty, but the EPA simply 
saying that this is more certain does not get it with us. This 
is an agency that has used fraudulent e-mails to avoid Freedom 
of Information Act. They have been reticent to share these maps 
with us.
    You know, we are concerned.
    Senator Klobuchar. Okay. Thank you.
    Ms. Rutledge?
    Ms. Rutledge. Thanks, Senator Klobuchar.
    As the chairman noted at the beginning, changing the name 
is not enough. What the EPA has done with this rule is simply 
rearranged the words.
    In light of the Rapanos ruling, as I have mentioned time 
and again, it has gone far beyond legally what that ruling 
held. That ruling was a plurality; it is not even considered 
clear law.
    The EPA took a simple definition, which is a traditional 
navigable waters, interstate waters----
    Senator Klobuchar. No, I----
    Ms. Rutledge. --et cetera----
    Senator Klobuchar. Yes.
    Ms. Rutledge. --and they have made it into a very long, 
lengthy, three-parts, multiple subparts, seven new definitions.
    Senator Klobuchar. So you would rather go back to just 
where it was.
    Ms. Rutledge. I would rather throw this rule out with the 
bath water, yes, ma'am.
    Senator Klobuchar. Okay. Thank you.
    I had one question about this: The EPA's proposed rule adds 
new language explicitly exempting certain waters from 
jurisdiction that are not currently exempt. These exemptions 
will be enforced by the Army Corps as they are under current 
regulations.
    Now I have heard from producers in my State who feel that 
existing exemptions are not always enforced uniformly across 
the different Army Corps districts. For example, the St. Paul 
District of the Army Corps of Engineers, which includes 
Minnesota, requires a Section 404 permit for the installation 
of drain tile through a wetland, but in neighboring North 
Dakota in the Omaha District installation of drain tile is 
exempt from Section 404 permitting.
    Have you heard from states in different Army Corps 
districts that they are not consistently applying, and how 
would we fix this?
    Anyone?
    Mr. van der Vaart. I will simply vote that, yes, we have 
seen inconsistencies. We are fortunate to work with 
professionals and some of our own folks who have worked 
elsewhere in the country, and we have sat down with the Army 
Corps out of Atlanta to raise this issue of consistency, and we 
hope to meet some level in our district.
    Senator Klobuchar. Okay. Anyone else?
    Ms. Metzger.
    Ms. Metzger. Thank you, Senator.
    I think a good example from Kansas is we actually fall 
under the jurisdiction of just one regulatory district, the 
Kansas City District. Other states sometimes have several 
jurisdictions that fall under their purview.
    We go through battles in the discrepancies of the way that 
the Federal mitigation rule is applied in Kansas versus some of 
our neighboring states and that there is a requirement in 
Kansas that we have a permanent, in perpetuity, conservation 
easement placed on all of our mitigation projects. That is not 
universally applied in other Corps districts throughout the 
states.
    So we do see quite a bit of diversity in the way that the 
existing rules are applied.
    Senator Klobuchar. Okay. Well, thank you very much, and 
thank you for coming today and sharing these concerns which I 
have heard a lot of in our state.
    Thank you.
    Chairman Roberts. Senator Sasse.

  STATEMENT OF HON. BEN SASSE, U.S. SENATOR FROM THE STATE OF 
                            NEBRASKA

    Senator Sasse. Thank you, Mr. Chairman, both for holding 
this particular hearing and for making oversight a priority of 
this Committee.
    As my colleagues have noted, addressing the ``Waters of the 
U.S.'' Rule as it relates to producers across the country and 
rural life across our country is not only entirely appropriate, 
but it is an urgent necessity. You hear about it in all 93 of 
Nebraska's counties when you travel our State.
    I am scheduled to be presiding on the Senate floor later 
this morning. So, before turning to my questions, with the 
chairman's indulgence, I want to introduce Jeff Metz of Morrill 
County, Nebraska, who will be testifying on the second panel.
    His son is with him today as well and told me yesterday 
that he is happy to be missing three days of school,
    transferring his education to Washington, DC over the 
course of this week. So we are happy to oblige.
    Mr. Metz is the owner and operator of Metz Land and Cattle 
Company of Angora, Nebraska, where runs a cow-calf operation 
and farms winter wheat and other crops. Since 2010, Mr. Metz 
has also served as a county commissioner in Morrill County. So 
his perspective is informed not just by his role as a producer 
but also by his role in local government.
    Mr. Metz is here because, like so many Nebraskans, 
including myself, he cares deeply about the land and water that 
helps form the backbone of the agriculture of our State but 
also is the place where he is raising his kids.
    I suspect that he is here because he expects that at least 
one, and maybe both, of his sons will one day be farming the 
ground that he currently farms.
    I would also mention that his great grandfather first 
homesteaded the land that he lives on today. So he is the fifth 
generation of producers living on that land.
    There is nobody in Washington, DC who cares more about the 
environment in Morrill County than he does. Mr. Metz's 
commitment to clean water, as his testimony today makes clear, 
should be understood in the light of the legacy of five 
generations living and working that land and one that he 
expects to pass on to the next generation.
    So thank you for being here today. We look forward to 
hearing from you on the second panel.
    As far as--thank you, Mr. Chairman.
    As far as questions for this panel, I would like to begin 
with Secretary van der Vaart. Your written statements talk a 
good bit about Chevron deference, and I wonder if you could 
unpack that a little bit and also to speak about whether or not 
you think that regulatory agencies are increasingly 
incentivized to find ambiguities in statutes so as to exploit 
Chevron later.
    Mr. van der Vaart. Thank you.
    That is exactly right. I testified here last week on 
Section 111(d), curiously called the Clean Power Plan.
    The issue here is that Congress bestowed upon the EPA the 
authority that--the trust to implement the Clean Water Act, and 
over time the EPA has successively done a poorer and poorer job 
of that.
    If you take a look at appellate level and above cases, the 
EPA loses more than they win, and that is in the cases that are 
so-called non-ambiguous. In the ambiguous side, they are meant 
to take deference.
    But that is a public trust that was bestowed on them, both 
by this Congress as well as by courts in the Chevron case.
    My question is, increasingly, how often does the EPA have 
to miss, how often do they have to misinterpret laws before 
Congress revokes this public trust?
    That is a very serious question because, as you said, it 
has now been used in a lot of cases to develop sue-and-settle 
strategies where we do not really even go through rulemaking. 
EPA finds some benevolent Federal judge to define rules for us 
through a cherry-picked process.
    So it is very concerning, and I hope that we--that Congress 
takes a look at it.
    Senator Sasse. Thank you.
    General Rutledge, I wonder if you have views on that 
question as well.
    Ms. Rutledge. Thank you, Senator Sasse, Mr. Chairman.
    Yes, I believe that the EPA has continually gone beyond its 
scope.
    Recently, in a Supreme Court case of Perez v. Mortgage 
Bankers, the holding in that case simply stated that 
administrative agencies do not have to submit interpretive 
rules to public notice and comment. This should frighten 
everyone who hears that because what will prevent the EPA or 
any agency from claiming to offer further clarity on issues and 
pushing through an interpretive rule without public comment.
    This rule alone received one million public comments.
    Senator Sasse. Mr. Chairman, I recognize that I am about at 
time.
    So I will simply say that when you travel--I am new here. 
When you travel across our State, people actually believe in a 
Madisonian system of checks and balances. They believe in three 
separate, but equal, branches that check and balance one 
another.
    The increasing executive unilateralism we see out of this 
administration did not begin simply because of this 
administration but because the Congress has regularly passed 
laws that need to be passed before people can find out what is 
in them.
    We need a government that is more self-consciously self-
limiting because it believes in the Federalism that many of you 
have advocated more. Most governance should be delivered at the 
state and local level where possible.
    Thank you, sir.
    Chairman Roberts. We thank the Senator.
    Senator Heitkamp.
    Senator Heitkamp. Thank you, Mr. Chairman.
    Obviously, this is a rule that has generated a lot of 
discussion in every state, especially states like ours, in 
Kansas and North Dakota, where over 90 percent of our land mass 
is engaged in farming.
    Unlike Kansas, we have had an unusual wet cycle. I recently 
had another member touring the border, and we were in a 
helicopter. I pointed down to Northwestern North Dakota, where 
it has never been wet like this before--and I said, do you 
think EPA and the Corps have jurisdiction over that water?
    That is the question. Do they have jurisdiction, or don't 
they have jurisdiction?
    I think the most important thing we can do is provide 
certainty.
    I understand what you are all saying about this or that. 
But I would point out, General Rutledge, the IRS issues letters 
of opinions, interpretative opinions, every day. You have to be 
careful when you are saying all interpretive rules would be 
subject to notice and rulemaking because there is a lot of that 
going on.
    We are engaged--Senator Lankford and I are engaged in a 
process where we are actually trying to sort out how this 
process should go forward.
    But the point that I want to make, I think, is that what is 
the ``Waters of the United States?''
    [No response.]
    Anyone want to give me a one-minute definition of what the 
``Waters of the United States'' are?
    [No response.]
    Senator Heitkamp. It is pretty hard. It is pretty 
complicated. We all know it is complicated, from jurisdictions 
to when we used to have the EPA cow that we drank out of the 
pothole and that created interstate commerce jurisdiction.
    We know it is not navigable, and I think the court told us 
in Rapanos it is not navigable in the traditional sense. So 
that has created a whole lot of uncertainty that we need to 
resolve.
    But I think that we need to appreciate that all of us are 
in this together. The worst thing that we can do is create, I 
think, a subindustry here of people coming and spending and 
spending, and we spend millions of dollars on controversy when 
we should be sitting down, answering that question, because the 
court did not do a very good job.
    I would suggest, Secretary, that when you talk about 
111(d)--the EPA was pretty certain they did not have 
jurisdiction over CO2. But what did the Supreme Court tell 
them? They had jurisdiction over CO2 and had to at least 
contemplate regulation.
    So regulation through litigation is not our path forward. 
It is expensive, and it creates uncertainty. So we need to 
figure that piece out.
    But I would suggest to you, Mr. Baldi, that if you were 
proposing a rule and it generated enough interest that we have 
to hold the hearing in this room and, literally, unanimous 
opposition from every farm group in North Dakota and every farm 
group across the country, wouldn't you rethink that rule?
    Wouldn't you step back and say, ``well, obviously, one of 
the two things, they are not understanding what I am trying to 
do, or maybe I am overreaching and we need to have another 
conversation?'' Wouldn't you do that?
    Mr. Baldi. Rules are complicated business, and when you 
have interests on all sides you sometimes have strong 
opposition from one interest or another. That does not 
necessarily cause an agency to go back to the beginning.
    You started by asking the question, what are ``Waters of 
the U.S.''?
    I, actually, on the plane flight here, was doing the same 
thing, looking down at the waters as I was coming across the 
nation. Very difficult to tell from a picture or from a plane 
what are, and what are not, ``Waters of the U.S.''
    What we believe the Corps and EPA have done here is clearly 
identified some waters that are clearly not ``Waters of the 
U.S.''
    Senator Heitkamp. But I would tell you that no one thinks 
what they have done here has clarified what, in fact, is 
``Waters of the United States.''
    Does it mean a connection through subsurface connections? 
What exactly are we going to have?
    We need to remember we do not have an EPA rule that we are 
talking about. We have a proposed rule and a promise that we 
are going to fix it.
    I think there is a whole lot of distrust on whether we are, 
in fact, going to see a rule that clarifies and fixes some of 
the concerns, and I think that is where we are at right now.
    I guess my point is wouldn't it be better to basically 
propose a new rule--and it can be the rule that they are 
working on now--and open it back up for comments so that people 
can have additional dialogue and additional consultation with 
states?
    Here are three states saying they want that additional 
discussion. Wouldn't that be a better path forward?
    Mr. Baldi. Well, from Washington State's perspective, we 
would like them to do additional work on the rule before it is 
finalized. So we agree that there are some improvements that we 
can see in the rule. However, we have seen the Federal agencies 
in other rulemaking actually improve and work with the states 
and, again, the last eight months, have been very different 
from when they proposed the rule. So we have believed that they 
have been much more interactive, EPA in particular.
    Senator Heitkamp. But having the ability to see where their 
thinking is now and comment on it and have further dialogue 
before it is finalized, can't you see some value in that?
    Mr. Baldi. We anticipate more interaction, and again, that 
is why we have called for these regional discussions, regional 
definitions, with the Federal agencies. They have been 
responsive in other rulemaking. We believe they will be here as 
well.
    Senator Heitkamp. I guess my point is that we have had a 
lot of controversy around this rule. It seems to me that we 
ought to have more conversation and more certainty.
    Simply saying ``trust us'' probably is not going to sit 
very well with a lot of the witnesses and a lot of the 
discussion on this panel.
    Thank you, Mr. Chairman.
    Chairman Roberts. I thank the Senator.
    Mr. Baldi, you ought to take those EPA folks you are 
working with, and the Army Corps of Engineers, and send them 
down to Kansas and over to North Carolina and to Arkansas That 
would be very helpful.
    Mr. Baldi. I will see what I can do.
    Chairman Roberts. When you were flying over, trying to 
determine what was wet, that is what the EPA determines, and 
they have actually flown planes over Kansas to determine what 
is wet.
    So we will go from there.
    I apologize to Senator Donnelly, who is recognized at this 
point.
    Senator Donnelly. Thank you, Mr. Chairman. No reason to 
apologize.
    I will note very quickly that my alma mater will be playing 
Wichita State in a few days.
    [Laughter.]
    Senator Donnelly. I hope that the fact that you are the 
chairman and I am just one of the members is not going to 
influence the outcome.
    To everybody here, I think we all know well the need for 
EPA to rework the rule, to provide greater clarity for our 
farmers, ranchers, and state regulatory agencies. We all want a 
rule that protects our waters from pollution, but we also need 
a rule that provides certainty and confidence for all 
stakeholders. Even EPA admits they need to improve the rule to 
reset balance.
    So, to all of you, would you feel more confident if EPA had 
to take all the information received from the public on this 
proposed rule, then go through all the procedural steps they 
skipped the first time, like consulting with states, consulting 
with small businesses, and finally, re-propose a WOTUS rule 
within some guidelines that say EPA cannot define things like 
erosional features or isolated ponds as ``Waters of the U.S.''?
    Ms. Rutledge, we will start with you.
    Ms. Rutledge. Yes. Thank you, Senator Donnelly, for the 
question.
    Yes, in Arkansas, we would welcome the EPA to come visit 
with our farmers, our landowners, our business owners, and to 
read the comments submitted by those in our State and those in 
the other states, of those one million comments, before 
proposing another rule.
    Senator Donnelly. Mr. Secretary?
    Mr. van der Vaart. Yes, exceedingly novel perhaps, but yes, 
we would very much encourage that.
    Senator Donnelly. Ms. Metzger?
    Ms. Metzger. Thank you.
    Yes, if EPA and the Army Corps of Engineers truly took 
Executive Order 13132 seriously and consulted with the states 
in revising this rule and did not put our feedback in the 
same--relegate it to the same feedback as all those other 
million comments, then we would appreciate that, if it was 
reflected in the final rule.
    Go Shockers.
    Senator Donnelly. We will strike the last part from the 
record.
    [Laughter.]
    Mr. Baldi?
    Mr. Baldi. Again, as the previous exchange demonstrated, we 
have been working with EPA.
    We do not recommend that they go back and start again.
    We do recommend strongly that they form these regional 
committees to work out the final details of the rule.
    Senator Donnelly. I think what is important to understand--
and I have mentioned this before--is that when I look at 
Indiana's farmers and, I know, the ag community across the 
country, nobody wants to have cleaner water, nobody wants to 
have better land conditions, than the family that actually 
lives on the farm, right there.
    Our waters in our State are the cleanest they have been in 
my lifetime, and it is everybody working very, very hard to 
make progress. They are doing it because they care about it and 
they want to and they know it is their children's future.
    I think it is really important for us to have some faith 
and confidence in the wisdom of the people and the ag community 
throughout this country and put a lot more faith in them than 
we have been.
    Thank you, Mr. Chairman.
    Chairman Roberts. Senator Cochran.
    Senator Cochran. Mr. Chairman, thank you.
    It occurs to us that there are inevitably going to be costs 
imposed on landowners and others, state governments, on and on. 
EPA has estimated that the state governments alone would 
experience about a million dollars annually in additional costs 
to administer and process permits in addition to some other 
costs that are associated with the permitting process.
    What do you have in your testimony that would indicate to 
the Committee what the costs are expected to be? Have you done 
any analysis of that?
    Ms. Metzger. From Kansas's perspective, we have estimated 
that we spend $300,000 annually from state general funds in the 
implementation of our state regulations for ``Waters of the 
U.S.,'' defining use attainability analysis and monitoring. We 
would expect that would certainly increase if this rule were 
adopted--funds we think are better spent by actually 
implementing best management practices on the ground that 
improve water quality.
    Senator Cochran. Other witnesses who have comments to make 
on that?
    Mr. van der Vaart. I would like to note----
    Senator Cochran. --comments to make on that?
    Mr. van der Vaart. Yes, sir. I would also like to note that 
the exemptions are--that we have heard today do not apply to 
water quality standards or NPDES permitting or, for that 
matter, possible TMDLs. So I do not want anyone to think that 
this rule and this interpretation will not have impacts on 
existing farms right now.
    Senator Cochran. What is TMDL, as a matter of curiosity?
    Mr. van der Vaart. It is, essentially, when surface waters 
have exceeded water quality standards despite compliance with 
point source discharge limits and you need an additional plan 
to bring the surface waterbody into compliance with water 
quality standards. Under that program, we can regulate to any 
wetlands, including those newly designated and to so-called 
exempted farms.
    They are only exempted from 404 permitting. Sorry.
    Senator Cochran. Oh.
    Ms. Rutledge. Senator Cochran, I do not have any specific 
data on how much it would cost the State to issue the permits.
    But I do have information that it is very costly for 
farmers or landowners to obtain these permits, but the cost of 
not obtaining them is even more so. A landowner could be 
penalized up to $37,500 per violation per day in violation of 
the Clean Water Act. That is a heck of a lot of money, sir.
    Senator Cochran. It is in Mississippi; that is for sure.
    Mr. Baldi. Senator, likewise, we have not performed an 
analysis. As I mentioned, this is very similar to the system we 
currently operate.
    I will say that EPA has estimated there will be an 
additional 3 percent permittees nationwide. So there will be 
cost, but in our experience we do not believe it will be 
significant.
    Senator Cochran. Yes. Thank you, Mr. Chairman.
    Chairman Roberts. That will conclude the first portion of 
our hearing this morning.
    Thanks to each of our witnesses very much for taking time 
out of your busy schedules to come to Washington and share your 
professional perspectives about the impact of the EPA's 
proposed rule on the ``Waters of the United States.''
    To my fellow members, we would ask that any additional 
questions you may have for the record be submitted to the 
Committee clerk 5 business days from today or by 5:00 p.m. next 
Tuesday, March the 31st.
    We now invite the second panel of witnesses to come to the 
table.
    [Pause.]
    Chairman Roberts. I would like to welcome our second panel 
of witnesses before the Committee.
    We have a vote at 12:00, and so, like King Tut, we are 
pressed for time. Sorry about that.
    Ms. Lynn Padgett joins us today on behalf of the National 
Association of Counties.
    Senator Bennet. Mr. Chairman.
    Chairman Roberts. Oh, I beg your pardon, Senator Bennet.
    Senator Bennet. Thank you.
    Chairman Roberts. Senator Bennet would like to introduce 
this witness.
    Senator Bennet. Well, it would be much classier to be 
introduced by the chairman than by me, but I would like to have 
the----
    Chairman Roberts. You are welcome, sir.

 STATEMENT OF HON. MICHAEL BENNET, U.S. SENATOR FROM THE STATE 
                          OF COLORADO

    Senator Bennet. Thank you, Mr. Chairman.
    Actually, I have the chance this morning to introduce not 
one, but two, witnesses from Colorado. Thank you for allowing 
them to testify.
    First, I would like to introduce Lynn Padgett, second term 
county commissioner from beautiful Ouray County situated in 
Colorado's San Juan Mountains.
    Lynn has been a great partner to me over a number of years, 
whether it has been working together to allow ``Good 
Samaritans'' to clean up abandoned hard rock mines or 
strategizing on the best way to ensure our rural communities 
get their full payment in lieu of taxes--PILT. Lynn worked with 
this Committee and the full Senate to help secure a one-year 
extension of PILT payments during the conference committee for 
the 2014 Farm Bill.
    Lynn, welcome, and thanks for being here today.
    I would like to introduce on the panel the other witness 
from Colorado, Kent Peppler, who is at the other end. We have 
got bookends today.
    Kent is a fourth-generation farmer from Mead, Colorado, 
where he grows barley, alfalfa, corn, and wheat on his 500-acre 
farm. In the past, Kent has also grown sugar beets and 
sunflowers and tended to hogs, sheep, and cattle.
    Kent knows the importance of clean water to his farm, and 
that is why he is here today, to support the Clean Water Rule.
    Kent is the president of the Rocky Mountain Farmers Union, 
a graduate of Colorado State University, father of two kids, 
and has been married to his wife, Colleen, who is here today, 
for 3 years.
    Welcome, Kent.
    Mr. Chairman, thank you for the privilege of introducing 
these two witnesses.
    Chairman Roberts. I thank the Senator very much.
    Second, we have Mr. Furman Brodie, who joins us today, 
traveling from South Carolina on behalf of the Charles Ingram 
Lumber Company.
    In his professional capacity, Mr. Brodie currently serves 
as the Vice Chairman of the Southeastern Lumber Manufacturers 
Association, which represents the forest product industry and 
sawmills throughout that region of the country. Mr. Brodie also 
served as Chairman of the South Carolina Forestry Association 
and on the board of the Treated Wood Council. He is the present 
Chairman of the Southern Pine Inspection Bureau and the Vice 
Chairman of the American Lumber Standards Committee.
    Thank you for being here today. I look forward to your 
testimony.
    Jason Kinsley, pardon me, Kinley, joins us today from 
Emmett, Idaho, where he is the district director for the Gem 
County Mosquito Abatement District. Mr. Kinley also serves on 
the American Mosquito Control Association Board of Directors 
for the North Pacific Region. In this role, Mr. Kinley also 
serves as the Executive Director of the Northwest Mosquito and 
Vector Control Association since 2009.
    Welcome. I certainly look forward to your testimony, sir.
    Mr. Robert ``Mac'' McLennan of Minnkota. Senator Hoeven was 
scheduled to introduce this witness. In case, he is not here, 
and so I will proceed.
    Mr. Robert ``Mac'' McLennan is the president and CEO of 
Minnkota Power Cooperative, Inc., an electric generation and 
transmission co-op based in Grand Forks, North Dakota, that 
serves areas in North Dakota and Minnesota.
    Early in his career, Mr. McLennan has also worked for the 
National Rural Electric Cooperative Association as the director 
of Environmental Affairs. Pardon me.
    Welcome, and I look forward to your testimony.
    Mr. Jeff Metz, Senator Sasse, I think you have already 
introduced this witness. Would you like to add anything at this 
point?
    Senator Sasse. No, just that we are grateful that Jeff is 
here and that his son has accompanied him, and he is not only a 
farmer and producer in the Western Panhandle of Nebraska, but 
he is also the president of the Farm Bureau of Morrill County.
    So, glad you are here, Jeff.
    Chairman Roberts. What is Mr. Metz's son's name?
    Senator Sasse. I think we have Logan and Dylan. Just Dylan 
here.
    Chairman Roberts. Would he stand?
    Young man, there is going to be a test on this tomorrow. 
So, take good notes.
    [Laughter.]
    Senator Sasse. This is when you are supposed to claim you 
are a Shockers fan. Just say, and we will talk football with 
the chairman later.
    Chairman Roberts. All right. Mr. Kent Peppler of the Rocky 
Mountain Farmers Union. Senator Bennet, I think, has already 
done that job.
    I think that pretty much concludes introductions. If I have 
left anybody out, I apologize.
    Let's move right away to Commissioner Padgett.

STATEMENT OF THE HONORABLE LYNN M. PADGETT, COMMISSIONER, OURAY 
                   COUNTY, MONTROSE, COLORADO

    Ms. Padgett. Thank you, Chairman Roberts, Ranking Member 
Stabenow, and members of the Committee for the opportunity to 
testify on the ``Waters of the U.S.'' Proposed Rule.
    My name is Lynn Padgett. I am an elected county 
commissioner from Ouray County, Colorado, and today I am 
representing the National Association of Counties.
    Ouray County is considered rural, with a population of 
approximately 4,500 residents. Known as both the ``Switzerland 
of America'' and the ``Gateway to the San Juan,'' my county is 
home to scenic ranch lands, historic mining districts, wild 
lands, trails and public and private hot springs. Approximately 
45 percent of our county is comprised of Federal public lands 
and 23 percent is agricultural.
    As a county commissioner and small business owner, I 
interact with constituents and businesses on a daily basis. 
Throughout Colorado, I have heard concerns about how the state 
and local governments, businesses and residents could be 
affected by the proposed rule. These concerns have been echoed 
by counties, large and small, across the country.
    After consultation with county experts, including county 
engineers, public works directors, stormwater managers, and 
legal staff, NACO called for the agencies to withdraw the 
proposed rule until after further analysis and consultation 
with local officials is completed. This decision was not taken 
lightly.
    Today, I will discuss the on-the-ground impacts on rural 
counties nationwide and why counties called for the proposed 
rule to be withdrawn.
    First, this issue is so important because counties build, 
own and maintain a significant portion of public safety 
infrastructure, and the proposed rule would have direct and 
extensive implications. Local governments own almost 80 percent 
of all public road miles and also own, and maintain, roadside 
ditches, bridges, flood control channels, stormwater systems 
and culverts.
    Many of these road systems are in very rural areas. Seventy 
percent of counties are considered rural with populations of 
less than 50,000.
    Additional Federal regulation would be challenging, 
especially since rural counties own most of the road miles and 
ditches. My county is responsible for over 300 public road 
miles and the majority of bridges which help to support our 
local economy and tourism industry.
    Because we own so much infrastructure and are responsible 
for public safety, defining which waters and conveyances fall 
under Federal jurisdiction has a direct impact on counties.
    Second, the agencies developing the proposed rule did not 
sufficiently consult with local governments. Counties are not 
just stakeholders in this discussion. We are partners in our 
nation's intergovernmental system.
    By law, Federal agencies are required to consult with their 
state and local partners before a rule is published and 
throughout its development. However, this process was not 
completed by the agencies.
    Third, due to this inadequate consultation, many terms in 
the proposed rule are vague and create uncertainty at the local 
level. For example, the proposed rule introduces new 
definitions of ``tributaries,'' ``significant nexus,'' 
``adjacency,'' ``riparian areas'' and ``floodplains.'' 
Depending on how these terms are interpreted, additional public 
infrastructure could fall under Federal jurisdiction.
    The proposed rule, as currently written, only adds to the 
uncertainty over how it would be implemented consistently 
across all regions.
    Our final reason for calling for the withdrawal is that the 
current permitting process tied to the ``Waters of the U.S.'' 
already presents significant challenges for counties and the 
proposed rule only complicates matters. The jurisdictional 
determination process is already complex, time-consuming and 
often triggers other Federal laws. We have many examples from 
across the country, from the coastal areas to the arid West, of 
instances where existing rules under the Federal permitting 
process are being implemented inconsistently.
    In conclusion, while many have attempted to paint this as a 
political issue, in the eyes of county governments, it is a 
matter of practicality and partnership. We look forward to 
working with you and with the agencies to craft and clear and 
workable definition of the ``Waters of the U.S.'' that achieves 
our shared goal, which is to protect water quality without 
inhibiting the public safety and economic vitality of our 
communities.
    Thank you again for this opportunity.
    [The prepared statement of Ms. Padgett can be found on page 
76 in the appendix.]
    Chairman Roberts. Mr. Brodie.

  STATEMENT OF FURMAN BRODIE, VICE PRESIDENT, CHARLES INGRAM 
                         LUMBER COMPANY

    Mr. Brodie. Thank you, Chairman Roberts. I would like to 
thank you and the Committee for holding this hearing on the 
impacts of the ``Waters of the U.S.'' Proposed Rule.
    I would also like to take this opportunity to thank the 
Committee for all your hard work on the 2014 Farm Bill, 
including your work on the Forest Roads Provision.
    My name is Furman Brodie, Vice President of Charles Ingram 
Lumber Company in Effingham, South Carolina. I also currently 
serve as Vice Chairman of the Southeastern Lumber Manufacturers 
Association, or SLMA.
    Charles Ingram Lumber Company is a family-owned company 
that manufactures Southern Yellow Pine lumber. We also own 
timberland where we grow trees for pulpwood and saw timber.
    SLMA is a trade association that represents sawmills, 
lumber treaters, and their suppliers in 16 states throughout 
the Southeast.
    Charles Ingram Lumber Company originated in 1931 as the 
Bynum-Ingram Lumber Company, and the third generation of the 
Ingram Family now helps manage the operation of the mill. Our 
mill produces approximately 120 million board feet of Southern 
Yellow Pine annually, and we support 150 good paying jobs in 
our community.
    Our industry has reviewed this proposal, and we have 
identified a variety of concerns. Many of these concerns are 
similar to those expressed time and again by others in 
agriculture, forestry, and throughout rural America, namely, 
that the proposed rule is vague, excessively expands 
jurisdictional waters, and opens up stakeholders to endless and 
costly litigation.
    That said, as timber owners and sawmill operators, we do 
have some unique concerns that I would like to briefly outline.
    In South Carolina and other states, there are already best 
management practices, or BMPs, in place to ensure that proper 
precautions are taken to control water runoff during forest 
management activities. These BMPs are successful in large part 
because they are tailored for specific regions and terrains.
    We fear the complexity of this rule will create untenable 
administrative burdens on the state agencies. Additionally, the 
complexity of the rule could frustrate landowners' inclination 
to reinvest in forest management and even push some landowners 
to consider other land use options. Such unintended 
consequences of the proposed rule could be devastating.
    The ``Waters of the U.S.'' Rule would also impact our 
sawmill operations. Our operations typically involve a number 
of operations that generate a water discharge. Some of these 
activities are already regulated by the Clean Water Act, but 
some are not.
    Our biggest fear is that, under this proposed rule, 
creative litigators could find a way to argue that virtually 
every aspect of our operation, from forest to mill, would be 
regulated by EPA.
    Administrator McCarthy has made several public statements 
to indicate that there will be significant changes. We would 
like to point out that her comments are not legally binding and 
provide little reassurance to those of us whose business are at 
risk.
    Fixing this rule in the way necessary to be supportive of 
rural economic engines such as ours will require major changes. 
If significant changes are made to the rule, then additional 
opportunity for stakeholder comment is necessary.
    We hope members on both sides of the aisle will appreciate 
that we simply cannot be asked to blindly trust the EPA to get 
it right. We respectfully request an opportunity to review the 
changes to the rule and comment on these changes before we are 
asked to comply with this new regulation.
    In conclusion, I would like to thank the Committee for 
taking the time to hold this hearing today and hear our 
perspective, and I look forward to answering any questions you 
may have.
    [The prepared statement of Mr. Brodie can be found on page 
55 in the appendix.]
    Chairman Roberts. Thank you, Mr. Brodie.
    Mr. Kinley.

   STATEMENT OF JASON KINLEY, DIRECTOR, GEM COUNTY MOSQUITO 
                       ABATEMENT DISTRICT

    Mr. Kinley. Good morning, Mr. Chairman and members of the 
Committee.
    My name is Jason Kinley, and I am the director of the Gem 
County Mosquito Abatement District, a special purpose district 
established in Emmett, Idaho, to control mosquitos. I welcome 
the opportunity to provide a public health perspective to the 
deliberations of this Committee concerning impacts the ``Waters 
of the United States'' Proposed Rule will have.
    Over one million people die worldwide each year from 
mosquito-transmitted diseases. The costs associated with the 
treatment of mosquito-borne illness run into the millions of 
dollars each year in the United States.
    Alarmingly, the future of public health protection through 
mosquito abatement itself is in jeopardy due to the increasing 
costs associated with pesticide registration, the reduction of 
epidemiology and laboratory capacity grants, and burdensome 
requirements of the Clean Water Act's National Pollutant 
Discharge Elimination System Permits. These costs and the 
reduction of grant funding divert already scarce taxpayer 
dollars to regulatory compliance instead of using those funds 
to meet mandated public health missions and objectives.
    Indeed, the end result compromises both the quality and 
extent of protection mosquito control offers to the public and 
may result in the loss of protection for those constituencies 
who cannot afford to pay these increased costs.
    If the proposed rule is finalized consistent with its 
current form, the number of waters protected by the Clean Water 
Act will increase. EPA has stated that this increase in 
jurisdiction will aid in protecting the nation's public health 
and aquatic resources.
    I certainly support the protection of our nation's 
waterways and wetlands. However, I am also concerned that the 
expansion of ``Waters of the United States'' under the proposed 
rule will increase regulatory burdens to conduct necessary, 
integrated mosquito management initiatives and, thus, inhibit 
such work.
    Mosquito control products are rigorously reviewed under 
FIFRA. If approved, those products will be required to carry 
labels that include application instructions and environmental 
considerations. The impact of pesticide application upon water 
bodies and aquatic species is thoroughly considered before a 
product is ever allowed on the market.
    In contrast to the Clean Water Act, violations under FIFRA 
are based on sound science, EPA-approved label language, and 
specific enforcement benchmarks. Violations under FIFRA are not 
based on personal perceptions or personal opinion, and only 
government agencies that have been empowered to process 
violations do so.
    Currently, staff of the Gem County Mosquito Abatement 
District spend approximately three weeks per year tabulating 
and reporting activities for the season on ``Waters of the 
United States.''
    The District has had to invest in the geographic 
information system for accurate reporting of applications to 
``Waters of the United States,'' the purchase of the necessary 
hardware and software required, an investment of 20 percent of 
our annual operating budget. The District was forced to make 
this hardware and software investment to comply with NPDES 
reporting requirements solely as it was not necessary for FIFRA 
compliance.
    The costs associated with reporting compliance diverts 
funding away from the mission of protecting public health in 
Gem County. These costs would only increase with the expansion 
of defined regulated waters as there would be a larger number 
of water bodies where compliance is required.
    Again, all of these regulatory requirements would either 
require increased taxation of our citizens or a diversion of 
resources away from our public health mission. Either way, 
neither the environment nor the public would be well-served.
    The current climate of mosquito control in the United 
States is dynamic. Recently, there has been an influx of 
invasive species of mosquitos, such as Aedes albopictus and 
Aedes japonicus, in many parts of the country and new diseases, 
like chikungunya virus, that are not endemic to North America. 
The costs associated with addressing influxes and invasive 
species and new disease are exacerbated by redundant regulation 
and reporting requirements.
    The increase in jurisdictional scope of the proposed rule 
compounds these costs, making a great many mosquito management 
programs potentially unsustainable. This will ultimately result 
in adverse impacts on communities, recreation, and both animal 
and human health.
    Thank you for the opportunity.
    [The prepared statement of Mr. Kinley can be found on page 
59 in the appendix.]
    Chairman Roberts. Mr. McLennan.

  STATEMENT OF ROBERT ``MAC'' N. MCLENNAN, PRESIDENT AND CEO, 
                MINNKOTA POWER COOPERATIVE, INC.

    Mr. McLennan. Thank you, Mr. Chairman, Ranking Member 
Stabenow, and members of the Committee.
    I am happy to reflect the views today of America's rural 
electric co-ops and particularly those within our region in 
Eastern North Dakota and Northwest Minnesota, sometimes 
referred to as the ``Land of 10,000 Lakes'' and certainly the 
``Prairie Pothole Region'' of this country.
    So as EPA begins to talk about redefining or reclarifying 
what ``Waters of the U.S.'' means, it has a significant impact 
on the individuals in our area. We have a slightly different 
view than those of the farmers and ranchers who most of our 
members serve but, nonetheless, the same concerns as it relates 
to clarity associated with this proposal.
    We have about a 35,000-square-mile territory in that region 
that runs along the Red River Valley of North Dakota, which I 
will talk about specifically in just a moment.
    We have about 3,000 miles of transmission line, and our 
members have tens of thousands of miles of distribution lines 
in those areas.
    So, as you talk about redefining the areas that we have to 
operate in, we take very close, and pay very close, attention 
to that.
    Our view is that the current rule, as it is proposed, is 
not really a clarification. It is a substantial expansion that 
results in, more likely than not, more costs, delays, and 
confusion but not likely to improve the environment--its stated 
goal.
    Today, utilities operate under a nationwide permit, No. 12, 
that allows us certain freedoms as it relates to ``Waters of 
the U.S.'' and our ability to do activities. We have the 
ability as long as in that project, or in a project, we do not 
disturb more than a half-acre of ``Waters of the U.S.''--
manageable most of the time in our region but still a challenge 
at times based on the nature of our topography.
    So when, under the proposed rule, ETA--or, EPA contemplates 
expanding that definition to include tributaries that directly 
or indirectly contribute flow to a navigable body of water, yet 
to be determined what that means--obviously, in the heart of 
this discussion--without defining to taking into consideration 
the frequency, duration, amount of flow, or its proximity to 
navigable waters, further complicates the issue for us and 
creates a challenging process.
    Further in this rule, when you add the challenges that 
wetlands and manmade features are being considered as it 
relates to part of this, it gets even more complicated.
    Finally, the last part for our part of the country and 
region of the world is when the proposed rule specifically 
refers to the ``Prairie Pothole Region,'' or those areas we 
live, for a potential jurisdiction. Getting that right is 
imperative and very troubling to us as it relates to how it 
might work.
    I mentioned the Red River Valley in North Dakota and 
Minnesota splits. That is the border between the states, and it 
is dead in the middle of our service territory. Grand Forks, 
where our office is located, is right on it.
    For those of you who are not familiar with the Red River 
Valley, we live in an extremely flat region subject to 
significant seasonal flooding.
    I live, personally, right on the river. At times, where I 
live, the river is two to three hundred yards wide. During the 
spring, it is several miles wide.
    So, when the water recedes and the spring fades, the water 
just does not flow back down to the river. Every low spot, 
every small pond, every ditch, every field, every wet area ends 
up staying there until such time as either the sun heats it up 
and it evaporates or it finds another way.
    Clearly, it is not a water that is there on a permanent 
basis nor is it navigable nor does it--and it occurs. So this 
year we will have a very easy spring, and it is unlikely that 
those waters will exist.
    So, as you look at that in our valley, as those recede or 
those--the question I think Senator Heitkamp asked earlier is 
are those ``Waters of the U.S.'' The concern for us today is we 
do not know. So it becomes a potential nightmare to manage that 
as we move forward.
    Those are a lot of what-ifs.
    On a practical front, our experience has been, however, 
that as the agencies enforce those what-ifs, they enforce them 
with an error on the side of caution, and that caution is out 
of fear or criticism that they are going to be challenged over 
that.
    On a practical front, that leads to numerous challenges and 
months of delay over the projects.
    I will just close by saying the preamble to the rule says 
we want to enhance protection for the nation's public health 
and aquatic resources by increasing clarity.
    I would argue it does not increase clarity at all and, in 
fact, makes it much more difficult for those people in our 
region to figure out what it means.
    So, thank you, Mr. Chairman.
    [The prepared statement of Mr. McLennan can be found on 
page 65 in the appendix.]
    Chairman Roberts. We thank you.
    Mr. Metz.

   STATEMENT OF JEFF METZ, OWNER AND OPERATOR, METZ LAND AND 
                         CATTLE COMPANY

    Mr. Metz. Good morning. My name is Jeff Metz. My family and 
I farm and ranch in the Western Nebraska Panhandle, where we 
raise cattle, wheat, and other dryland crops.
    Thank you for allowing me the opportunity to provide a 
farmer-rancher and a local government perspective on this 
proposed rule.
    I want to thank the Chairman and Ranking Member for holding 
the hearing.
    The proposed ``Waters of the U.S.'' rule represents a 
dramatic expansion of the Federal Government's reach into the 
everyday activities of farmers, ranchers, homebuilders, local 
county governments, and virtually everyone who turns earth with 
a shovel.
    Throughout my land, I have seasonal valleys, draws, and 
canyons, as well as ponds and other natural depressions, that 
at times fill or flow with water. In fact, there are many 
examples in Nebraska of waterways that have what the rule 
defines as jurisdictional--a bed and a bank and a high-water 
mark.
    Unless there is a significant amount of precipitation, many 
of those examples are waters that flow only a short distance 
before evaporating or seeping into the ground. Yet, it appears 
that I will now need a Federal permit to farm those areas.
    A Federal permit will cost me time and money, and even more 
problematic, the Federal Government is under no obligation to 
give me that permit, even if I need one to farm.
    Nebraska is also home to the Sand Hills, the center of 
Nebraska's critical cow-calf industry. This area is also home 
to meadows that sit on top of a very shallow water table. These 
wet meadows will fill with water during the spring but will dry 
out during the summer, allowing ranchers to mow that grass for 
hay. As the mowing of these areas is extremely time-sensitive, 
a delay of a few days or even weeks to obtain a Federal permit 
could mean the loss of an entire year's worth of cattle feed.
    As I said earlier, this rule's impact will reach much 
further than just agriculture. As one of three county 
commissioners in Morrill County, Nebraska, we are charged with 
maintaining 900 miles of county roads, all of which have 
ditches that run along each side. Maintaining these roads is 
expensive and time-consuming, and it is one of the most 
important tasks to a county government. We simply cannot afford 
a Federal permit each time we maintain these roads because of 
the ditches that run along each side.
    As I read the proposed rule, as well as portions of the 
Clean Water Act, it has become very clear to me that the only 
ones who seem to be confused as to where the regulatory limits 
lie is the EPA and the Corps, not farmers and ranchers.
    What we need is something far more focused on common sense 
rather than a regulation which grants the Federal Government 
blanket authority over virtually all bodies of water.
    Thank you for the time today, and I will be happy to answer 
any questions.
    [The prepared statement of Mr. Metz can be found on page 69 
in the appendix.]
    Chairman Roberts. We thank you very much.
    Mr. Peppler.

 STATEMENT OF KENT PEPPLER, PRESIDENT, ROCKY MOUNTAIN FARMERS 
                             UNION

    Mr. Peppler. Good morning. My name is Kent Peppler. I am 
president of Rocky Mountain Farmers Union, a general farm 
organization whose members live in Colorado, New Mexico, and 
Wyoming.
    Water is critical to the livelihoods of family farms and 
ranches.
    The rulemaking process is designed to encourage 
conversation with, and feedback from, the regulated community. 
It is unreasonable to expect the proposed rule to get all the 
nuances precisely correct.
    Despite confusion over the rule, the basic process is still 
in place. EPA issued a proposed rule, sought feedback from the 
agricultural community, and fully expects to make changes, 
acknowledging farmers' and ranchers' expertise and insights.
    Our understanding of this process compelled us to stress 
the advantages of the new rule and present EPA with 
instructions on how to make the rule work for family farmers 
rather than resist the process entirely. We believe EPA's 
efforts to define these regulations puts all farmers and 
ranchers on the same page rather than having to guess what is 
or what is not allowed project by project, permit by permit.
    RMFU echoes National Farmers Union's four critiques of 
EPA's proposed rules.
    First, while NFU argues wetlands should not be considered 
tributaries, RMFU believes that wetlands should not be 
considered tributaries unless they are in a floodplain.
    Second, there must be strict limits on what waters can be 
considered similarly situated.
    Third, groundwater connections warrant further examinations 
before they may be used as a basis for jurisdiction.
    Fourth, the definition of ``perennial flow'' should be 
clearly defined, allowing farmers to know with certainty 
whether ditches on their property are jurisdictional or not.
    Right now, family farmers are subject to a convoluted pair 
of Supreme Court decisions on a statute that has not 
substantially been revisited since 1987. EPA and the Army Corps 
have had trouble applying the rules of the court rulings with 
consistency, preventing farmers from anticipating the 
jurisdiction status of the water on their land with any 
confidence.
    RMFU does not view the proposed rule, as some groups do, as 
a greedy grab for power or land. It is an attempt to meet the 
demands of the Supreme Court and allow commerce and agriculture 
to proceed without fear of unexpected permitting complications.
    The current regulatory landscape is unacceptable. We need 
more clarity and reliability. While the proposed rule did not 
accommodate all of agriculture's concerns, I understand that 
the EPA will take all feedback, including that offered by 
Farmers Union members, under serious consideration. I expect a 
final rule from the EPA that will protect the nation's water 
resources without obstructing our ability to farm and ranch 
productively.
    I would encourage all parties presenting testimony today to 
stop politicizing this matter and be good advocates for 
American farm families by telling EPA what needs to change in 
the rule.
    The value of our communities in the West is based on having 
pristine water for communities, for recreation, for 
agriculture, and for food processing. Eastern States are 
blessed with ample supplies of water. In the West, water is the 
most critical resource we have. We do not want that water to 
waste, and we cannot afford to pollute it.
    In conclusion, concerns over proposed definitions of 
``tributary'' and ``adjacent'' are unwarranted because those 
definitions merely clarify existing jurisdiction. The final 
rule should establish that wetlands cannot be considered 
tributaries. Groundwater connections to jurisdictional water 
needs to be more.
    Rocky Mountain Farmers Union stands ready to provide this 
Committee with any further information or explanation that may 
be helpful in this matter.
    Thank you.
    [The prepared statement of Mr. Peppler can be found on page 
121 in the appendix.]
    Chairman Roberts. We thank you, Mr. Peppler.
    Mr. Kinley, I have three questions for you.
    Number one, you said that one million lives are lost every 
year worldwide due to the various problems with mosquitos and 
other infections. Is that correct, sir?
    Mr. Kinley. Yes, Mr. Chairman, that is correct.
    Chairman Roberts. Do you have any figures for the United 
States?
    Mr. Kinley. Any figures for the United States, they 
fluctuate given each year and each mosquito season, depending 
on the situation, and we have seen this in past year.
    If you look at just the State of Idaho, in 2006, we had----
    Chairman Roberts. Right. You had the West Nile.
    Mr. Kinley. --West Nile virus, a severe outbreak where 40-
some people lost their lives, and there were over 1,000 human 
cases in a state where the population is only 1.2 million.
    Since numbers fluctuate year by year, I do not have actual 
averages over the course of time for the United States.
    One thing we have working in our favor is that we have 
robust mosquito control programs established in many 
jurisdictions, and that helps balance the impact that these 
diseases have.
    Chairman Roberts. So we are talking about lives here, and I 
think people ought to understand that.
    With a proposed rule that is--we worry about costs. We 
also, obviously, worry about overregulation. My favorite 
commentary is regulating a farm pond where no self-respecting 
duck would ever land.
    That is all well and good, but you are talking about actual 
lives.
    I want to know if added costs--are there added costs that 
your county is having to pay as a result of the new permitting 
requirement, and if so, does this impact the frequency or type 
of treatments you are able to use?
    Mr. Kinley. There are added costs, Mr. Chairman. Some of 
the costs are not necessarily quantifiable in terms of the 
amount of money that is spent.
    But, ultimately, what happens is to comply with these 
regulations time is spent identifying waters and in seeing what 
appropriate applications can be made to abate mosquitos and 
other pests in those waters and then costs associated with the 
time that it requires to report these activities.
    We actually have to delineate what applications we make to 
``Waters of the United States'' from applications that we make 
to private lands and state lands and other waters that are not 
necessarily under the jurisdiction of the Clean Water Act.
    Mosquitos do not care about time, and that is the bottom 
line, Mr. Chairman.
    Chairman Roberts. If the scope of regulated waters is 
expanded as EPA has proposed--and you have already answered 
this partially--how would this impact the work that you do?
    Mr. Kinley. As jurisdiction is increased, we fear that more 
and more agencies--and these are Federal agencies, such as the 
Bureau of Reclamation or the Bureau of Land Management--will 
put further restrictions on what we can and cannot do on those 
lands as they pertain to water that exists on those lands, 
therefore, prohibiting the applications that we could make to 
control mosquitos that are actually developing on those 
Federally regulated lands and prohibiting our ability to do our 
jobs for the citizens that live near and around those 
properties.
    Chairman Roberts. Are you aware of this same type of 
concern in other counties in other states?
    Mr. Kinley. I am very much so, Mr. Chairman. California, 
Oregon, and the State of Washington have very real issues with 
trying to deal with the NPDES reporting requirements, the NPDES 
permit as it stands at the state level, and so it is a very 
real concern, especially in the western part of the United 
States.
    Chairman Roberts. I thank you for your comments.
    Senator Stabenow.
    Senator Stabenow. Well, thank you very much, Mr. Chairman.
    Thanks to each of you.
    Just one clarification, though, Mr. Kinley. It is my 
understanding that there has not been any general permit denied 
under the new law for spring. You do very important work, and 
it is my understanding there has not been any permits that have 
been denied. Is that your knowledge as well?
    Mr. Kinley. As far as I know, Senator, that is correct.
    Senator Stabenow. Thank you.
    Mr. Peppler, I wonder if you could talk a little bit more 
about your family farm operation.
    By the way, thank you to everyone who has talked about the 
Farm Bill, on which we pride ourselves in working together and 
across party lines together on behalf of agriculture, farmers, 
and ranchers, and appreciate the comments that have been made 
about the work we were able to get done.
    But I wonder if you might talk about how your operation is 
currently affected by the Clean Water Act and what you will 
have to change, in your judgment, under the proposed rule and 
what your interaction has been related to the EPA.
    You talked about feeling that agriculture's concerns will 
be addressed, and certainly, we all want that to happen.
    But talk a little bit about how you are affected by the 
Clean Water Act and what you would anticipate changing in terms 
of what you do, as you understand what will happen in terms of 
the rule.
    Mr. Peppler. Well, first of all, I would like to take this 
time on behalf of the farmers in the Rocky Mountain Farms Union 
to thank all of you for the fine job that you did on the Farm 
Bill. That was a feat that is not very common in Washington 
these days, and we respect all of you a great deal for it and 
thank you.
    Senator Stabenow. Thank you.
    Mr. Peppler. You asked me to talk about my farm. We cannot 
be here all day.
    [Laughter.]
    Mr. Peppler. I farm 500 acres of flood-irrigated ground in 
Northern Colorado. Our water source--I do not have wells. So 
our water source comes strictly from the mountains and snow 
pack. We have storage lakes along the front range of Colorado, 
Northern Colorado, to store this water, as well as we get some 
water from the other side of the Continental Divide through a 
reclamation project.
    I have upland ditches on our property that probably will 
not come under the rule, but our wastewater runs into sloughs 
that probably will come into the rules.
    We also have pretty significant oil and gas development on 
our farms also.
    To talk about the changes, what we would like to see as the 
fallout from the changes from the rule is that we would like to 
have more clarity. At this point, we are farming a little bit 
in the dark.
    I watched a World War II show last night, and General 
Montgomery said the Americans, they just do not know the rules. 
It is so much easier to play the game when you know the rules.
    Well, that is kind of the way I feel agriculture is. We 
just do not know the rules of the game, and we are hoping that 
this provides clarity and we will be able to utilize best 
management practice and plan down the road those best 
management practices to help with our farming operation.
    Senator Stabenow. You know, Mr. Peppler, I wonder if I 
might--just on that point, talking about certainty, we have 
heard a lot of concerns about keeping the comment period going, 
going back and doing it over, and so on.
    Since people want and need certainty, it seems to me I 
would be concerned about going back and starting over another 
200 days and still not knowing.
    I mean, the court created a mess, this last decision with 
five different opinions. I never heard of that before.
    There is no question everyone feels they are trying to 
figure out what is going on.
    So I am wondering if you think limiting the Clean Water 
Rule and starting all over again would be wise for creating 
certainty at this point in agriculture.
    Mr. Peppler. The Rocky Mountain Farmers Union thinks that 
we ought to continue the course that we are on in the 
rulemaking.
    To just ditch the rule, as some would say--time is money, 
and it will be costly, and it will cause a rise. We think it 
will cause a rise to more lawsuits, which puts the decision-
making in the hands of the court. I would rather put the 
decision-making in those of us on this panel and those of you 
up there.
    Senator Stabenow. Thanks very much, Mr. Chairman.
    Chairman Roberts. We have a vote at 12. So we would--the 
Chair would like to advise Senators if we could keep it down to 
a reasonable time.
    Senator Boozman, please.
    Senator Boozman. Thank you, Mr. Chairman.
    In the interest of time, I really just want to--in fact, I 
will ask Commissioner Padgett.
    A lot has been said about certainty. My understanding, as 
somebody that has been in water resources, in one form or 
another for the last 13, 14 years while I have been in 
Congress, is the new rule is so broad. You know, it can be 
interpreted so many ways. Instead of making things certain, it 
really creates a lot of uncertainty.
    So I guess my question would be: Because of the situation 
that we are in, wouldn't it make sense to provide legislation 
that would make these things crystal clear as far as the 
concerns that we have in agriculture?
    Ms. Padgett. Yes. Thank you, Senator.
    It would make the most sense at this point to follow what 
NACO is requesting, which is to withdraw the rule and go back 
to having a good consultation process with partners. We are 
calling for a stronger collaborative rulemaking process.
    What I am hearing here at the table, Mr. Senator, is that 
from the various perspectives there is uncertainty, not just 
for counties but for all of the stakeholders. But counties are 
partners and we have public safety mandates that are very 
serious. So we really need to make sure it is done right.
    We have provided the agencies with a list of questions that 
was very detailed since they did not consult with us prior to 
publishing in the Federal Register, and those questions largely 
are still unanswered. Only a handful were able to get answered, 
which, again, just keeps highlighting this uncertainty and 
confusion.
    If we cannot have certainty, we really do need to go back.
    I just want to point out a couple things about the flawed 
process.
    If we go back to--the Corps will tell you that the Corps 
did consult with counties a little bit before, 10 years ago, 
before they published in the Federal Register.
    They did not consult with the counties prior to publishing, 
and in fact, the 17 months leading up to that publishing for 
public comment there was absolute silence.
    Questions that we have from counties: The roadside ditches. 
If culverts flood, are we going to be able to save our assets, 
and save our residents and visitors, when the roads flood. In 
the arid West we have monsoons that quickly turn into flash 
floods.
    That is just one example, sir.
    Senator Boozman. Thank you.
    Thank you, Mr. Chairman.
    I think the reality is they do not know the answer to those 
questions themselves, which is a real problem.
    So, thank you, Mr. Chairman.
    Chairman Roberts. Thank you.
    Senator Bennet.
    Senator Bennet. Thank you, Mr. Chairman.
    Before I ask my questions, I would like to submit several 
documents into the hearing record.
    The first is a letter that our office authored, with help 
from elected officials and leaders in Colorado's water 
community, to the EPA, asking for clarity on several provisions 
of the rule that have heightened importance for those of us 
from the arid West.
    Secondly, I would like to enter several letters in the 
record from elected officials in Colorado.
    I would ask unanimous consent.
    Chairman Roberts. Without objection.
    Senator Bennet. Thank you, Mr. Chairman.
    [The following information can be found on page 159 in the 
appendix.]
    Senator Bennet. I know time is short. So I am just going to 
ask one question of each Coloradan that is here today.
    Kent, this panel has heard today that EPA's stated goal in 
this rulemaking is to restore the Clean Water Act to its 
historic reach, to return it to the law that was enforced by 
President Reagan, by two President Bushes.
    You were born and raised in Colorado and have had the 
chance to see the importance of the Clean Water Act on the 
ground firsthand, both as a farmer and as a citizen of a state 
where water is truly the lifeblood of our economy, and our 
culture, for that matter.
    Can you talk a little bit about your experience having seen 
Colorado's rivers and streams before and after the Clean Water 
Act was passed?
    Mr. Peppler. I think I can shed some light on that.
    First of all, you are exactly right. In Colorado--and I do 
not care what farm organization you belong to. I do not care 
what rotary club you belong to--water is the number one issue, 
and clean, pristine water is the key to our economy.
    We were just talking about this the other day, that people 
beat up on the environmental movement. They beat up on the EPA. 
But those of us that have lived along these rivers, along the 
front range in Colorado, know the significant improvements that 
have come in the last 40 to 50 years.
    When I was a young boy and we would go to Denver, the 
Platte River was so putrid you did not even want to look at. 
There were all kinds of different industries dumping pollutants 
in there.
    Isn't your office at Confluence Park?
    Senator Bennet. Yes it was.
    Mr. Peppler. I will tell you when I was a little boy you 
would have never had your office at Confluence Park because you 
could not stand the stench, and today, there are people out 
there kayaking in it. That is the change that we have seen.
    So the importance of clean water to the State of Colorado 
and to this country, you cannot put a value on it. It is 
absolutely priceless.
    Senator Bennet. Thank you, Kent.
    Commissioner Padgett, Lynn, you have been a tireless 
advocate for clean water in Colorado as well.
    One issue that we have worked on together in the past is 
the so-called ``Good Samaritan'' legislation that provides 
regulatory flexibility for groups like Trout Unlimited or the 
Boy Scouts of America to get out on the ground and clean up 
abandoned hard rock mines that are harming water quality.
    You have been one of the nation's leaders on this issue, 
and since we are discussing clean water here I was hoping you 
could share some of the challenges your community is facing 
that stem from the legacy of abandoned hard rock mining 
operations.
    Ms. Padgett. Thank you, Senator.
    Yes, it is true I have been very active on the ability of 
parties who have no connection, financial connection, to 
historic mines that were mined before there were even permits, 
to measurably and demonstrably improve water quality.
    That means, for those of us in the room that are not from 
Colorado or from areas with hard rock mining to remove acidic 
conditions and remove metals that may be toxic in local water 
resources.
    But the Clean Water Act that we are talking about today, 
the proposed rule, is really about the proposed definition 
change to the ``Waters of the U.S.'' Unfortunately, it does not 
change the situation of ``Good Samaritans,'' those who are not 
financially responsible, being able to improve water quality at 
hard rock abandoned mine sites without liability, without 
lawsuits.
    Counties, I just want to say, are very much in support of 
clean water. In Ouray County, as a headwaters community in the 
mountains, we very depend on this clean water, not just for 
agriculture but for municipal and industrial use. We depend on 
it for tourism, recreation, and our environment.
    We want to work with the Federal Government and the states 
and other partners to implement Clean Water Act programs that 
are clear and consistent, and that is what our concern is from 
counties--is that the current proposed definition does not 
address, in our opinion, the flaws in the current definition of 
the ``Waters of the U.S.'' in the Clean Water Act.
    I will point out I am a Clean Water Act baby. I was one 
year old when the Clean Water Act was passed, and I am very 
grateful that the water and the whole nation has been improved 
by the Clean Water Act.
    But as a county commissioner, if I cannot provide public 
safety services because of the proposed ``Waters of the U.S.'' 
definition change and how that cascades to other Federal 
regulations--there are limitations on the number of acres you 
can treat with a permit, for example, and for counties that is 
a big concern. A limited number of acres you can do public 
safety services on in a single calendar year.
    We have concerns about being able to balance the clean 
environment, clean water, and our public safety, and also 
ensure that our agricultural patterns are also going to be 
intact.
    Senator Bennet. Thank you, Mr. Chairman. My time is up.
    Chairman Roberts. Senator Cochran.
    Senator Cochran. Mr. Chairman, thank you.
    My question is for Mr. Brodie, Vice President of Charles 
Ingram Lumber Company in South Carolina, dealing with ways to 
reduce impact on the ``Waters of the U.S.'' Rule.
    The lumber industry shareholders in my State of Mississippi 
are concerned, to me, and have expressed concern to me about 
the imposition of new costs and burdens on forestry operations 
that would provide no real benefits in addition to what 
existing regulations permit.
    Does the lumber industry in South Carolina have this same 
opinion?
    Mr. Brodie. Yes, we do, Senator. I will just give you one 
example of an additional cost.
    Our BMPs require us to, when we are harvesting a tract of 
land, if there is an ephemeral stream or flowing body of water, 
to leave a buffer zone on either side of that water feature.
    If, in fact, ditches now become jurisdictional waters and 
we have to leave buffer zones on the sides of ditches, it is 
going to take out of production a vast amount of land in our 
area. We are in the coastal plain of South Carolina, and it is 
basically flat, and you have ditches everywhere.
    That is just one example of the additional costs.
    Then the other cost that really concerns us is it looks to 
me like the way this rule is written it is some lawyer's 
``Dream Act'' for bringing suits against industry, and then the 
courts will be deciding whether or not this applies, not 
Commissioner McCarthy. That is the biggest fear that we have 
right now.
    Thank you.
    Senator Cochran. Thank you, Mr. Chairman.
    Chairman Roberts. Senator Thune.
    Senator Thune. Thank you, Mr. Chairman, and thanks to the 
panel today.
    What concerns me the most about this EPA-proposed ``Waters 
of the U.S.'' Rule is that it is just another example of what 
has become an all too common practice of this administration, 
to reach into the lives, livelihoods, and pocketbooks of the 
American people that it is supposed to be helping.
    Even before this rule is finalized, the cost of just the 
proposed rule to the people that it is supposed to be helping 
is staggering. Think about the amount of time taken for 
respondents to file over a million comments to the proposed 
rule, the number of congressional hearings, including this one, 
and individuals, small businesses, and county and state 
governments who have worked hard to keep this rule from 
destroying their livelihoods. It has cost already millions of 
dollars to counter a government that was created to be of 
assistance.
    So, Mr. Chairman, I would like to just share some of the 
comments taken from the testimony of each of today's witnesses. 
I think they tell the story of what is a misguided rule better 
than any of us on the Committee can tell it.
    These are just some of the excerpts about the proposed 
``Waters of the U.S.'' Rule from today's testimony:
    Lacks clarity, consistency, certainty.
    One-size-fits-all regulation is not the answer.
    State and local governments were not adequately consulted.
    Undefined and unclear and lack of clarity.
    I have yet to receive a direct answer from EPA.
    Adds to confusion.
    It complicates already inconsistent definitions.
    The number of waters protected by the Clean Water Act will 
increase.
    Increases regulatory burdens.
    Significant costs.
    Fails miserably at adding clarity.
    Threatens the agricultural community.
    Extensive legal arguments have been made explaining how the 
rule is unlawful.
    Vagueness and uncertainty surrounding the rule.
    States were not included in a meaningful way in creating 
the new definitions.
    EPA proposal will subject agricultural operations to more 
pervasive Federal intrusion.
    The rule is clearly focused on expanding the role of the 
Federal regulatory agencies into the daily lives of people 
around the country.
    It appears that I will now need a Federal permit in order 
to plough, apply fertilizer or pesticides, graze cattle, or 
even build a fence in these areas or even around them.
    A Federal permit will cost me time, money, and the Federal 
Government is under no obligation to even give me.
    Simply cannot afford to be required to obtain a Federal 
permit each time we go out to maintain these roads because of 
the ditches that run alongside them.
    There are ambiguities in the present regulatory landscape 
that many producers have found arbitrary and confusing.
    Those are just a few of the comments that were in the 
testimony that we received today from these various witnesses.
    I would submit, Mr. Chairman, that this is just a very, 
very wrongheaded move. The rule excessively expands 
jurisdictional authority and, due to a lack of clarity, creates 
opportunities for all kinds of unintended consequences to 
plague the forestry sector and other sectors of our economy for 
years to come.
    So my question, I guess, I would say to all of you because 
I think is something that we have raised. We raised this last 
year in a meeting with the administrator, and that is do you 
believe that the EPA did an adequate job of reaching out and 
soliciting information from your respective industries, 
businesses, or entities before it published the proposed rule 
because EPA Administrator McCarthy told many of us on the 
Committee last year that her agency would make an intensive 
effort to solicit information from stakeholders before 
publication of the final ``Waters of the U.S.'' Rule.
    Did any of you believe that happened?
    Chairman Roberts. Let's start with Commissioner Padgett. 
You each have about five seconds to respond to that.
    [Laughter.]
    Ms. Padgett. No, sir, it was inadequate.
    Chairman Roberts. Mr. Brodie.
    Mr. Brodie. No.
    Chairman Roberts. Mr. Kinley.
    Mr. Kinley. The American Mosquito Control Association, 
Northwest Mosquito Control Association, and many mosquito 
abatement districts were not aware of this proposed rule until 
after it was published.
    Chairman Roberts. Mr. McLennan.
    Mr. McLennan. No.
    Chairman Roberts. Mr. Metz, representing Nebraska, who left 
the Big 12 to go to the Big 10.
    [Laughter.]
    Mr. Metz. Not at all, sir.
    Chairman Roberts. Mr. Peppler.
    Mr. Peppler. I think the EPA has gone out of their way and 
is making a definite effort to reach out to all stakeholders.
    Chairman Roberts. Well, five out of six is not too bad.
    Mr. Hoeven.
    Senator Thune. He is a very still----
    Chairman Roberts. Batting cleanup.
    Senator Thune. He is very sore about that Big 12 thing I 
feel you should know.
    [Laughter.]
    Senator Hoeven. Thank you, Mr. Chairman.
    When Senator Thune started talking, I was not sure where he 
was. I found him there.
    Senator Thune. I am down here in the kids section of the 
end bench.
    Senator Hoeven. I want to begin by thanking Mac McLennan 
for joining this panel and for being here to testify on 
``Waters of the U.S.'' and for leading a company, Minnkota 
Power, that is doing amazing things in producing cost-
effective, dependable energy from both traditional and 
renewable sources, and doing it without outstanding 
environmental stewardship and, in fact, right now building 
transmission at a time when that is very hard to do, to produce 
more energy, again from both traditional and renewable sources. 
That is the way to do it.
    The right guy to have here because we are talking about 
good environmental stewardship, but we are talking about doing 
it in a way that works.
    Mac, thanks for being here. Thanks for what you do.
    I know you will agree with me, both that ``Waters of the 
U.S.'' is not the way to accomplish good environmental 
stewardship and that, second, the UND hockey team, currently 
rated number one in the country, is going to march through the 
tournament to the Frozen 4.
    Mr. McLennan. I would just say they better play better than 
they did last weekend.
    Senator Hoeven. They are getting ready. They are going to 
do it.
    The question I want to start with, though, is to you, Mac, 
and then I am going to follow up and let everybody respond.
    But ``Waters of the U.S.'' has been put forward by the EPA 
as a proposed rule. Last year on the Appropriations Committee, 
we defunded the interpretive rule, which helps our farmers, but 
the underlying proposed regulation is still there. We need to 
defund it or, better, to deauthorize it, which myself and 
others here are working to do.
    But talk for a minute about the impact on costs--and then I 
want to go to the others here--because energy is a foundational 
industry sector. When you provide energy, everybody else uses 
that energy, and so when your costs are driven up, that affects 
everybody else.
    We have talked about the impact on our farmers, how EPA is 
going beyond their authorized authority. They have authority 
over navigable bodies of water. They have now extended it 
beyond what the Supreme Court has said they have authority to 
do.
    They not only make it almost impossible for our farmers and 
ranchers to know what they can do on their own farm or ranch, 
which is a private property right, but they are affecting every 
other industry sector.
    Talk for a minute about how this driving up your costs, a 
company that works very hard on environmental stewardship, will 
impact ag but all industry sectors as you work to provide 
power.
    Mr. McLennan. Thank you, Senator Hoeven.
    A couple of comments on the cost side.
    You are right. The costs really come in two-fold. One is 
the processing cost, and everybody pays that as it relates to 
your permits and so on. Real cost comes in delay and 
uncertainty associated with what you do.
    I mentioned in my earlier testimony that today utilities 
operate under a nationwide permit which allows us flexibility 
and is manageable most of the time.
    The challenge with this is that if you redefine waters and 
you add wetlands and you add a whole series of things for which 
our ability to operate under that nationwide permit is not any 
longer allowed, now we go to a full permitting process, and so 
the real cost associated with that becomes delay.
    So the longer to get your projects done and the longer to 
get them permitted because it is not--water is not the only 
thing, particularly in a linear project like a transmission 
line, that you have to worry about. So bird issues and any 
number of other things. They work in harmony.
    So we had a--I will use an example of what cost means. You 
referenced we just completed a 350-mile or a 250-mile 
transmission line for $353 million. We paid $30 million for 
that line more because of a challenge with the Corps of 
Engineers over what do we do with bird diverters--a simple, 
little plastic thing up there that the birds can see the lines 
so that it can work.
    So you talk about--that did not have anything to do with 
the cost of the diverters. That was just a delay to the line.
    So you increase, with this proposal, the opportunity that 
we end up with more of those, and those are the real expenses.
    We can probably all live with the processing of the 
permits. It is really the what happens to a project schedule 
and timeline and framework as it relates to projects that are 
linear and extremely expensive.
    Senator Hoeven. Don't those increased costs get passed on 
to your consumers?
    Mr. McLennan. They do in our case. There is nowhere else to 
go in a co-op except to those rural electric consumers who are 
paying for it.
    Senator Hoeven. So I would ask each one of our witnesses, 
briefly:
    One, are you for good environmental stewardship? Are you 
working to achieve that?
    But, in terms of ``Waters of the U.S.,'' doesn't that 
create uncertainty that makes it more difficult to do not only 
what you are trying to do but make sure that you are complying 
and meeting good environmental standards?
    Start with Commissioner Padgett.
    Ms. Padgett. Thank you, Senator.
    The costs come in two ways.
    They come in hard costs--costs of getting permits, costs of 
hiring consultants, for small counties especially, consultants 
for cultural resources, consultants for the Endangered Species 
Act--which cascade over what is jurisdictional. So not 
understanding what is clearly jurisdictional, is costly.
    Then, delays. Delays in performing those public safety 
duties can be costly in terms of money. We can lose tourists, 
we can lose sectors of our economy, and we can actually 
sometimes have injuries or lose worse.
    Senator Hoeven. Mr. Brodie.
    Mr. Brodie. We are certainly in favor of environmental 
conservation. That is the source of our livelihood.
    What does concern me is that we have a 35 to 40-year 
planning horizon. I am investing money in trees today that will 
be harvested 35 to 40 years from now as all of these Federal 
regulations come along.
    You wonder, well, what is the next regulation? What is the 
next regulation? What is that going to do to us?
    At some point, that impacts the desire of people to plant 
trees and invest in forestry. The best way to clean up water is 
to plant more trees.
    Senator Hoeven. Mr. Kinley.
    Mr. Kinley. I do not know a mosquito control profession out 
there, Senator, that is not an environmental steward, and we 
take that very, very seriously in our profession.
    To follow up with a previous question, while no NPDES 
permits have been denied to a mosquito control program, the 
costs of administering NPDES permits is substantial and is very 
significant.
    I mentioned it takes 3 weeks per year and a 20 percent 
investment in software and hardware to comply with the 
regulatory requirements and the reporting requirements 
associated with the Clean Water Act, the NPDES permits, and 
``Waters of the United States'' pesticide applications.
    What we have seen over the course of the last several years 
is that there really is no additional environmental benefit.
    Senator Hoeven. Mac, another? Anything else?
    Mr. McLennan. I am good, Senator.
    Senator Hoeven. Thanks.
    Mr. Metz.
    Mr. Metz. Thank you.
    The ``Waters of the United States'' expands the reach of 
the Federal Government. We are all for clean water, but this 
rule puts such a heavy burden on farmers and ranchers.
    Farmers and ranchers are the best stewards of the land. I 
mean, we are environmentalists.
    Senator Hoeven. I know.
    Mr. Metz. We are the true environmentalists of this land. 
We have to have clean water to do our farming practices the 
right way. Otherwise, we are not in business.
    We have no way to pass that cost or extra burden or extra 
regulatory authority on. We are takers of what the market is, 
whether it is corn, wheat, cattle. We cannot set the price. We 
cannot pass that on to a consumer. We take what that market is 
per bushel or per pound.
    Thank you.
    Senator Hoeven. You may have left the Big 12, but that was 
certainly well said.
    Mr. Metz. Thank you.
    Senator Hoeven. Mr. Peppler.
    Mr. Peppler. You know, it is difficult for me to measure 
the costs to agriculture, and one of the reasons is we have a 
tremendous amount of exemptions involved with this rule. I 
think the costs will be less maybe compared to other 
industries.
    But I agree with Mr. Metz. The reason we have those 
exemptions is because we have earned them. We have embraced 
conservation. We have embraced increased productivity. We have 
embraced productivity; we have increased.
    We do not run away from issues. Whether it is a 
conservation issue or a rulemaking issue, we do not run. We 
have earned those exemptions.
    I just want it on the record because I have been dressed 
down a little bit on why agriculture gets treated better. But 
we are the true conservationists.
    Senator Hoeven. Thank you, Mr. Peppler.
    Thank you, Mr. Chairman.
    Chairman Roberts. Thank you, Senator Hoeven.
    Today, we have heard from members of both sides of this 
dais raise concerns with this rule and suggest EPA and the 
Corps of Engineers reconsider.
    I certainly hope the EPA and this administration listens to 
the vast majority of stakeholders and the views that have 
expressed here today.
    This concludes the second panel.
    Thank you again to each of our witnesses for being part of 
government in action. We hope that is two words.
    The testimony provided today is valuable for lawmakers to 
hear firsthand; it has been.
    Statements and questions for the record are to be submitted 
to the Committee clerk 5 business days from today.
    The Committee is adjourned.
    [Whereupon, at 12:21 p.m., the Committee was adjourned.]

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


                            A P P E N D I X

                             MARCH 24, 2015



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







 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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


                   DOCUMENTS SUBMITTED FOR THE RECORD

                             MARCH 24, 2015



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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



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


                         QUESTIONS AND ANSWERS

                             MARCH 24, 2015



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

 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]