[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]



 
                         THE FUTURE OF WOTUS: 
                      EXAMINING THE ROLE OF STATES

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

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON ENVIRONMENT

              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 29, 2017

                               __________

                           Serial No. 115-39

                               __________

 Printed for the use of the Committee on Science, Space, and Technology
 
 
 
 
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              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

                   HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma             EDDIE BERNICE JOHNSON, Texas
DANA ROHRABACHER, California         ZOE LOFGREN, California
MO BROOKS, Alabama                   DANIEL LIPINSKI, Illinois
RANDY HULTGREN, Illinois             SUZANNE BONAMICI, Oregon
BILL POSEY, Florida                  AMI BERA, California
THOMAS MASSIE, Kentucky              ELIZABETH H. ESTY, Connecticut
JIM BRIDENSTINE, Oklahoma            MARC A. VEASEY, Texas
RANDY K. WEBER, Texas                DONALD S. BEYER, JR., Virginia
STEPHEN KNIGHT, California           JACKY ROSEN, Nevada
BRIAN BABIN, Texas                   JERRY McNERNEY, California
BARBARA COMSTOCK, Virginia           ED PERLMUTTER, Colorado
BARRY LOUDERMILK, Georgia            PAUL TONKO, New York
RALPH LEE ABRAHAM, Louisiana         BILL FOSTER, Illinois
DRAIN LaHOOD, Illinois               MARK TAKANO, California
DANIEL WEBSTER, Florida              COLLEEN HANABUSA, Hawaii
JIM BANKS, Indiana                   CHARLIE CRIST, Florida
ANDY BIGGS, Arizona
ROGER W. MARSHALL, Kansas
NEAL P. DUNN, Florida
CLAY HIGGINS, Louisiana
RALPH NORMAN, South Carolina
                                 ------                                

                      Subcommittee on Environment

                    HON. ANDY BIGGS, Arizona, Chair
DANA ROHRABACHER, California         SUZANNE BONAMICI, Oregon, Ranking 
BILL POSEY, Florida                      Member
MO BROOKS, Alabama                   COLLEEN HANABUSA, Hawaii
RANDY K. WEBER, Texas                CHARLIE CRIST, Florida
BRIAN BABIN, Texas                   EDDIE BERNICE JOHNSON, Texas
BARRY LOUDERMILK, Georgia
JIM BANKS, Indiana
CLAY HIGGINS, Louisiana
RALPH NORMAN, South Carolina
LAMAR S. SMITH, Texas
                            C O N T E N T S

                           November 29, 2017

                                                                   Page
Witness List.....................................................     2

Hearing Charter..................................................     3

                           Opening Statements

Statement by Representative Andy Biggs, Chairman, Subcommittee on 
  Environment, Committee on Science, Space, and Technology, U.S. 
  House of Representatives.......................................     4
    Written Statement............................................     5

Statement by Representative Suzanne Bonamic, Ranking Member, 
  Subcommittee on Environment, Committee on Science, Space, and 
  Technology, U.S. House of Representatives......................     7
    Written Statement............................................     9

                               Witnesses:

Mr. Wesley Mehl, Deputy Commissioner, Arizona State Land 
  Department
    Oral Statement...............................................    11
    Written Statement............................................    14

Mr. James K. Chilton Jr., Rancher, Chilton Ranch
    Oral Statement...............................................    30
    Written Statement............................................    32

Mr. Ken Kopocis, Adjunct Associate Professor, American University 
  Washington College of Law
    Oral Statement...............................................    41
    Written Statement............................................    43

Mr. Reed Hopper, Senior Attorney, Pacific Legal Foundation
    Oral Statement...............................................    56
    Written Statement............................................    58

Discussion.......................................................    77

             Appendix I: Answers to Post-Hearing Questions

Mr. Ken Kopocis, Adjunct Associate Professor, American University 
  Washington College of Law......................................   100

            Appendix II: Additional Material for the Record

Statement submitted by Representative Eddie Bernice Johnson, 
  Ranking Member, Committee on Science, Space, and Technology, 
  U.S. House of Representatives..................................   104

Documents submitted by Representative Colleen Hanabusa, Committee 
  on Science, Space, and Technology, U.S. House of 
  Representatives................................................   106

Letter submitted by Representative Mark Takano, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   120

Documents submitted by Representative Paul Tonko, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   123

Letter submitted by Representative Andy Biggs, Chairman, 
  Subcommittee on Environment, Committee on Science, Space, and 
  Technology, U.S. House of Representatives......................   148

Documents submitted by Representative Suzanne Bonamic, Ranking 
  Member, Subcommittee on Environment, Committee on Science, 
  Space, and Technology, U.S. House of Representatives...........   151


                          THE FUTURE OF WOTUS:



                      EXAMINING THE ROLE OF STATES

                              ----------                              


                      Wednesday, November 29, 2017

                  House of Representatives,
                        Subcommittee on Environment
               Committee on Science, Space, and Technology,
                                                   Washington, D.C.

    The Subcommittee met, pursuant to call, at 10:22 a.m., in 
Room 2318 of the Rayburn House Office Building, Hon. Andy Biggs 
[Chairman of the Subcommittee] presiding.

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    Chairman Biggs. Good morning. The Subcommittee on 
Environment will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Subcommittee at any time.
    Welcome to today's hearing entitled ``The Future of WOTUS: 
Examining the Role of States.''
    And I thank all of our witnesses who are here. We're glad 
to have all of you here and Members of the Committee. I 
recognize myself for five minutes for an opening statement.
    Welcome to today's hearing, ``The Future of WOTUS: 
Examining the Role of States.'' I thank our expert panel of 
witnesses for being here today and agreeing to testify about 
this important topic.
    The Waters of the United States rule, or WOTUS, issued by 
the EPA in 2015, amounted to one of the biggest federal 
overreaches in modern history. Not only did the rule's flimsy 
definitions and underlying science mean that the Agency had the 
ability to regulate private land, but it also placed 
significant financial burdens on some of our country's hardest 
workers.
    I am very pleased to have representatives here today from 
my home State of Arizona to discuss how this rule would affect 
them and what changes they believe would make water regulations 
better for this country.
    We all want to be good stewards of the environment. We also 
want to be good stewards for the people we are here in 
Washington to represent. When a federal agency overlooks the 
needs of American citizens, we in Congress have a duty to ask 
questions and address the concerns of our constituents. For 
example, when WOTUS was proposed, there was a large outcry from 
stakeholders across the Nation that the rule's vague 
definitions regarding navigable water could include sometimes 
dry drainage ditches on private farmland. It's absurd to 
consider a dry ditch ``navigable.'' Our Nation depends on the 
hard work of farmers and ranchers. These men and women simply 
don't have the time to deal with bureaucratic nonsense. Of 
course, it's not just them who suffer. Costly and unnecessary 
government mandates have drastic economic impacts on each and 
every one of us.
    The shortcomings of WOTUS are so self-evident that it's not 
surprising this onerous rule has been challenged across the 
country. And now we can point to a very encouraging action from 
the new Administration. President Trump recently issued an 
executive order directing EPA and the Army Corps of Engineers 
to review the WOTUS rule. I applaud the Administration for 
heeding the calls of Americans. A revision to the 2015 rule is 
desperately needed to provide greater clarity to States and 
stakeholders. Instead of rushing forward with burdensome 
federal regulations, the government needs to do its due 
diligence and propose a rule that is helpful, not harmful.
    Today, we will hear ideas about how some of those fixes to 
the regulation should look. Witnesses will inform Congress how 
federal water regulations affect them and what they need from 
the government to continue operating effectively. I look 
forward to a knowledgeable and substantive discussion.
    [The prepared statement of Chairman Biggs follows:]
    
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    Chairman Biggs. And I ask for unanimous consent to enter 
the comments of the American Road and Transportation Builders 
Association to the EPA regarding the regional WOTUS rule.
    [The information appears in Appendix II.]
    Chairman Biggs. With that, I yield back and recognize the 
Ranking Member, Ms. Bonamici of Oregon, for her opening 
statement.
    Ms. Bonamici. Thank you, Mr. Chairman.
    From Oregon's Willamette Valley to the Chesapeake Bay, 
Americans want the Waters of the United States to be 
safeguarded from harmful pollutants. They want this protection 
because our national ecosystem is interconnected, and what 
happens upstream is going to influence what happens downstream, 
especially to drinking water. Clean water is essential for our 
survival, and humanity has been dealing with issues related to 
access to clean water since the dawn of civilization.
    The needs of individual States are far more similar than 
they are different. The Clean Water Act exists in part because 
there was a time when states had primary responsibility for 
keeping waters within their State clean and safe. 
Unfortunately, many of those States were not able to meet that 
responsibility, and Americans watched as some of those waters 
became dirty and polluted and others caught on fire.
    Back in 1972, amendments to the Clean Water Act redefined 
the waters covered under the act to include the Waters of the 
United States, including the territorial seas, but Court 
opinions addressing which bodies of water fit that definition 
have been inconsistent. The genesis of the Clean Water Rule 
comes from the 2006 U.S. Supreme Court case Rapanos v. United 
States in which the Court did not reach a majority decision 
about what constitutes a water of the United States, and the 
result of that decision was confusion. The purpose of the rule 
is to minimize confusion by clarifying the jurisdiction of the 
Clean Water Act.
    After the Rapanos case but prior to the rule, the EPA 
released a report titled ``Connectivity of Streams and Wetlands 
to Downstream Waters: A Review and Synthesis of the Scientific 
Evidence.'' Mr. Chairman, I ask for unanimous consent to enter 
the executive summary of this report into the record.
    The report reviewed more than 1,200 publications from peer-
reviewed scientific literature, and the report itself went 
through two separate independent peer reviews. The report drew 
five major conclusions, which provided initial support for the 
Clean Water Rule. One conclusion was the scientific literature 
unequivocally demonstrates that streams individually or 
cumulatively exert a strong influence on the integrity of 
downstream waters, all tributaries, streams, including 
perennial, intermittent, and ephemeral streams are physically, 
chemically, and biologically connected to downstream rivers.
    As Mr. Kopocis explains in his testimony, before the Waters 
of the United States rule was finalized in May of 2015 the EPA 
received and considered more than 1 million public comments and 
held more than 400 public meetings. And though some suggest 
that despite past performance, States rather than Environmental 
Protection agencies should conserve America's waterways, 
watersheds, rivers, lakes, and streams, in response to such a 
suggestion in the Rapanos case, former Supreme Court Justice 
John Paul Stevens said, quote, ``The fact that the States have 
the power and the interest does not necessarily mean that the 
Federal Government does not also have the power.''
    Now, I don't want to return to a time when our waters were 
dirty, polluted, and even caught on fire, and I know our 
constituents don't want that either. It is for that very reason 
that we also need to hear not just from witnesses here today 
but also from representatives who are currently at the 
Environmental Protection Agency. This committee must meet its 
oversight responsibility and question the EPA about this issue 
and other issues--actions they are taking. The quality of the 
air we breathe and the water we drink is too important. This 
committee has a responsibility to keep the EPA accountable to 
the American people.
    Mr. Chairman, I ask for unanimous consent to enter into the 
record a letter signed by Members of the Science Committee 
requesting that Chairman Smith invite Administrator Pruitt to 
testify before our Committee as soon as possible, and in 
addition, I would like to enter into the record Chairman 
Smith's response to the request, stating that a hearing request 
is underway. We appreciate that.
    I urge Chairman Smith, Chairman Biggs, and the EPA to 
schedule this hearing quickly. The American people have an 
ownership stake in their environment, and they deserve to know 
what the EPA and Administrator's plans are--Administrator 
Pruitt's plans are for the EPA.
    Thank you, Mr. Chairman, and without objection, I'd like to 
enter the letter and the report--executive summary into the 
record.
    Chairman Biggs. Without objection.
    [The information appears in Appendix II.]
    Ms. Bonamici. Thank you, and I yield back the balance of my 
time.
    [The prepared statement of Ms. Bonamici follows:]
    
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    Chairman Biggs. I want to introduce our witnesses, and so 
let's do that right now. Our first witness today is Mr. Wesley 
Mehl, Deputy Commissioner of the Arizona State Land Department. 
Mr. Mehl received his bachelor's degree in political science 
from the University of Arizona and his law degree from 
Pepperdine University. He also received an LLM in real property 
law from the University of Miami. Glad to have you today.
    Our next witness is Mr. James Chilton, Jr., of Chilton 
Ranch. Mr. Chilton is a fifth-generation rancher and has 
received multiple awards, such as Rancher of the Year in 2002. 
He received his bachelor's degree as well as master's degrees 
in economics and political science from Arizona State 
University. Thank you, Mr. Chilton.
    Our third witness is Mr. Ken Kopocis, Adjunct Associate 
Professor at American University's Washington College of Law. 
Mr. Kopocis previously served as the Deputy Assistant 
Administrator in the Office of Water at the U.S. Environmental 
Protection Agency. He received his bachelor's degree from the 
University of Nebraska Omaha and his law degree from the 
Marshall-Wythe School of Law of the College of William and 
Mary. Thank you, Mr. Kopocis.
    And our last witness is Mr. Reed Hopper, Senior Attorney at 
the Pacific Legal Foundation. Mr. Hopper previously served as 
an Environmental Protection Officer and Hearing Officer in the 
U.S. Coast Guard. He received his bachelor's degree from the 
University of California and his law degree from the University 
of the Pacific McGeorge School of Law.
    I now recognize Mr. Mehl for five minutes to present his 
testimony. And I'll just remind all of you to be sure to turn 
on your microphone when you want to start. Thank you.

                 TESTIMONY OF MR. WESLEY MEHL,

                      DEPUTY COMMISSIONER,

                 ARIZONA STATE LAND DEPARTMENT

    Mr. Mehl. Thank you, Mr. Chairman. Mr. Chairman and members 
of the committee, thank you for the opportunity to testify on 
behalf of the Arizona State Land Department. I am the Deputy 
Commissioner of the department. In 1915, the State formed the 
land department to manage 9.2 million acres of land that was 
given to us by the Federal Government to be held in trust for 
support of our public beneficiaries. Chiefly, this is our K-12 
education system.
    The mandate of the department is to produce optimal revenue 
for our trust beneficiaries. To do this, we sell land; we lease 
land. There are 13 beneficiaries.
    If we could go to the next slide.
    [Slide.]
    So we have 9.2 million acres of trust land. You can see 
trust land identified on this map as blue. We're spread 
throughout the State. Together, it's 1.6 times larger than 
Maricopa County, which is the largest county in Arizona.
    The next slide, please.
    [Slide.]
    We have 13 beneficiaries. As I said, the largest 
beneficiary is our K through 12 education system. We also have 
beneficiaries of our State universities.
    Next slide, please.
    [Slide.]
    This map represents the transactions we have done 
historically. These are sales and leases. We lease for mineral, 
agriculture, and grazing purposes and we sell. This revenue 
supports our trust beneficiaries.
    Next slide, please.
    [Slide.]
    As part of this mission, I'm here to discuss our experience 
in navigating section 404 of the Clean Water Act. And I think 
our frustrations with the rule can best be illustrated with an 
experience that we've had in permitting actions in an area of 
north Phoenix in an urban area, particularly a subdivision, 
master-planned community called Desert Ridge. In 1993, we sold 
land to a developer who master-planned this area, and it's an 
area bordered by freeways, so the 101 freeway and the 51 
freeway are an apex, and you can see that on this map.
    When the project was started, the first four or five 
subdivisions and developments were permitted under the EPA--or 
the Army Corps' nationwide 404 permit, so each of these was 
allowed to proceed with--based on this recognition that minimal 
impacts were made to Waters of the United States.
    However, soon thereafter in the early 2000s the Corps came 
to the Land Department and said, ``No longer are we going to 
allow development in this manner but, instead, we are going to 
require an individual permit for the entire master plan area of 
Desert Ridge.''
    You go to the next slide, please.
    [Slide.]
    So our first challenge with the rule has been the ambiguity 
with respect to what a project is under 404. So the Land 
Department doesn't build anything and when--we rely on people 
we sell to to develop roadways, utility corridors, or 
commercial development. When we had to step in and get our 
permit, there were a number of challenges, and I'll talk 
through those.
    The first challenge is determining jurisdiction. 
Regulations for 404 have been ambiguous for a number of years. 
In the early 2000s, the premise we received were based on some 
hydrology and it's represented here. The picture on the left 
shows the jurisdictional delineations of 404 washes in this 
area. And you can see they form a web-like construct along the 
entirety of the property. The problem here for us is there 
really isn't water present in this area. These are all channels 
that transport stormwater drainage, so it falls in the 
mountains and comes through this area, but these are not 
streams. They are simply temporary runs of stormwater.
    When you have a jurisdictional delineation, you translate 
that into permit with onsite mitigation. The picture on the 
right shows mitigation corridors in hatch blue. The major 
problem for the department has been developing under these 
onsite mitigation corridors. Desert Ridge is some of our most 
valuable land. It's situated at the apex of these two freeways. 
To continue selling, we have to be able to sell with affordable 
infrastructure. The connections between the corridors make 
infrastructure much more difficult.
    When Commissioner Atkins and I arrived----
    Chairman Biggs. Mr. Mehl, your five minutes has expired. If 
you can just real quickly sum up, and then we'll put your 
statement into the record.
    Mr. Mehl. Yes, I apologize.
    In sum, the rule makes it hard to define jurisdiction. The 
washes in this area are--have no connection to downstream 
traditional waterways, and that's demonstrated in a 2017 study 
that we just commissioned. A move toward the Administration's 
executive order using Justice Scalia's Rapanos rationale on the 
404 rule would be beneficial to the Corps, to the regulated 
community, and to the State of Arizona. Thank you.
    [The prepared statement of Mr. Mehl follows:]
    
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    Chairman Biggs. Thank you, Mr. Mehl.
    Mr. Chilton.

             TESTIMONY OF MR. JAMES K. CHILTON JR.,

                     RANCHER, CHILTON RANCH

    Mr. Chilton. Chairman Biggs and distinguished Committee 
Members, thank you for having me today. My name is Jim Chilton, 
and I'm a fifth-generation Arizona rancher. Our ranch is 
adjacent to the town of Arivaca and continues south to the 
international boundary with Mexico. We've been in the cattle 
business in Arizona for 127 years. Our family all came from 
Texas, so I'm happy to see Texans here.
    We are thankful for the 2015 Waters of the United States 
rule that has been proposed to be withdrawn. Our experience 
convinces us that it was an unjustifiable overreach by the 
Environmental Protection Agency and the Corps of Engineers. It 
represented a federal power grab not supported by the Clean 
Water Act or the Constitution.
    For ranches in the Western United States, a requirement to 
obtain a Corps of Engineers section 404 permit or other permit 
is time-consuming and very expensive. The map on the monitor 
shows Arizona, and the red X is where I wanted to put a road 
across a dry wash. The dark line leading north marks the end of 
the Brawley Wash with no connection to the Santa Cruz River, 
and the end of the dry Santa Cruz River that has no connection 
to a navigable river. The dark line on the left represents the 
lower Gila River. These are all dry riverbeds, not streams of 
flowing water.
    In the 1990s, I had to retain consultants and an attorney 
in an effort to comply with the requirements of Section 404 to 
put a small dirt road across a dry wash. That wash only carries 
water briefly during occasional rainstorms. It connects with 
the Brawley Wash about 10 miles west of my proposed road 
crossing. The dry Brawley Wash spreads out into the desert 70 
miles north from the wash where I needed a ranch road. The wash 
is not even connected to the Santa Cruz River. The dry Santa 
Cruz riverbed vanishes as it spreads out like fingers in the 
desert 68 miles south of the usually dry Gila River. The Gila 
River extends another 100 miles or so across the desert to the 
Colorado River, which is the closest year-round navigable 
water. And it's 265 miles from the spot where I wanted to cross 
the dry wash. It is laughable to think that a desert wash is 
navigable in any way.
    My second experience was before the Supreme Court decision 
on Rapanos. I wanted to improve a small dirt road on my private 
property and place a culvert in the bottom of a wash on that 
road. You'll see on the monitor the wash and you'll see how 
steep it was. I used to have to drive down into the wash and up 
over it on my private land. However, I was told by my 
environmental consultant, I paid good money for that, it was a 
water of the United States. Well, excitedly, I read the Rapanos 
decision several years later after I had abandoned the dry wash 
road. I decided it's easier to drive down and up than hire 
attorneys and consultants to go through the section 404 
process.
    However, I abandoned the project, and after reading 
Rapanos, I said, ''Ah, it doesn't have a significant impact to 
the Colorado River 265 miles away,'' so I put in this bridge. 
Well, I might go to jail now if I did it again.
    In conclusion, the 2015 rule would allow the EPA and the 
Corps to trump States' rights to manage intrastate waterways 
and even dry washes. Any future rule should recognize the 
authority of State and local governments to make land use and 
water decisions. It is our position that the intrastate rivers 
such as the Santa Cruz in southern Arizona should be regulated 
by the State and counties, not the federal government. Any new 
WOTUS rule should minimize adverse impacts on farmers and 
ranchers and other small businesses, and it must be designed to 
reduce the potential for abuse through bureaucrats sitting 
around and expanding the interpretation.
    Please refer to my written testimony for precise 
recommendations of the National Cattlemen's Beef Association 
and the Public Lands Council. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Chilton follows:]
    
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    Chairman Biggs. Thank you, Mr. Chilton.
    Mr. Kopocis.

                 TESTIMONY OF MR. KEN KOPOCIS,

                  ADJUNCT ASSOCIATE PROFESSOR,

                      AMERICAN UNIVERSITY

                   WASHINGTON COLLEGE OF LAW

    Mr. Kopocis. Thank you. Chairman Biggs, Ranking Member 
Bonamici, and other Members of the Subcommittee, thank you for 
the request to appear today to discuss the future for 
protecting water quality under the Clean Water Act and the role 
of the States. I appear today in my personal capacity.
    In 1972, Congress enacted the Clean Water Act to restore 
and maintain the integrity of the nation's waters. If a water 
subject to the act is not going to be polluted or destroyed, it 
does not come under the authority of the Clean Water Act.
    Congress has also created significant roles for the States 
in the implementation of the Clean Water Act, often referred to 
as cooperative federalism. The Trump EPA has put forward a 
false choice that providing protection against polluting and 
destroying waterbodies somehow is adverse to states' interests. 
Today, most of the day-to-day activities for implementing the 
Clean Water Act are carried out by the states. States decide 
how clean their waters will be, not EPA, plus a significant 
number of States have not challenged the Clean Water Rule, and 
their interests are adversely affected by the proposed 
rollback. Further reducing the scope of the Clean Water Act 
will only reduce State efforts to protect waters from pollution 
and destruction by eliminating their federal partner.
    The Trump Administration is pursuing a policy of repeal and 
retreat, repeal the Clean Water Rule and retreat to 
jurisdiction based on the excessively narrow plurality opinion 
in Rapanos. But that opinion was expressly rejected by five of 
the nine Justices of the Court. A Scalia-based rule is 
guaranteed to continue the post-Rapanos confusion and 
litigation for many, many years to come, and it is not likely 
to withstand judicial challenge.
    A Scalia-based rule also has adverse practical effects for 
protecting state waters from pollution and destruction. 
Eliminating the protection for intermittent and ephemeral 
streams will remove Clean Water Act protection for as much a 60 
percent of the Nation's waters, and in some areas this could be 
80 to 90 percent. These waters would no longer be protected by 
water quality standards; no Clean Water Act permits would be 
required for discharges of pollutants; funding to address 
municipal wastewater, stormwater, and nonpoint source pollution 
would be less available; and federal authority to respond to 
oil spills would be curtailed.
    While some argue that States can and will fill this void, 
since the scope of the Clean Water Act was limited in 2001 and 
2006, there is no evidence that any State has done so. The act 
refers to navigable waters, which Congress defined as Waters of 
the United States, including the territorial seas. The Supreme 
Court has considered this definition three times, and in each 
case, every Justice has agreed that the term ``navigable 
waters'' applies to waters beyond those considered to be 
traditionally navigable. This debate should be over.
    Although neither SWANCC nor Rapanos invalidated the 
Agency's regulations, the EPA and the Corps spent several years 
developing the Clean Water Rule in response to demands of 
interested parties across the entire interested spectrum, yet 
the Trump Administration's current plans for repeal and retreat 
will bring back the confusion and litigation everyone said they 
wanted to end.
    The agencies developed a rule based upon Justice Kennedy's 
significant nexus test, a test that would have the support of 
five of the nine Justices on the Court, unlike the Scalia 
standard, which only had four. The rule is supported and 
informed by the best available peer-reviewed science on the 
relationship of waters and the impacts of upstream waters on 
downstream and adjacent waters. The validity and credibility of 
the science used by the agencies to support the Clean Water 
Rule has not been seriously denied or refuted. If there is 
better science, then bring it to the attention of the public 
and the agencies for their consideration.
    The rule establishes which waters will be jurisdictional in 
which circumstances and expanded the list of waters that would 
not be subject to jurisdiction. People would for the first time 
be able to read the rule and better know that a waterbody or 
feature was or was not subject to the act and--without the need 
for an expert or an individual analysis. The rule also 
establishes transparency in how the agencies will make 
significant nexus determinations instead of leaving those 
decisions within the discretion of an agency employee. For 
greater detail, I attached the rule to my testimony.
    The Clean Water Rule is a carefully considered rule that 
was developed with unprecedented public engagement and comment. 
It was available for public comment for 207 days. During that 
period, EPA held over 400 public meetings, and I personally 
attended about 70 of those in my prior capacity, including 
multiple visits to farms. Unfortunately, the rule's benefits of 
clarity, predictability, and consistency have been put on hold, 
but that will be resolved. The Trump Administration does a 
disservice to the public with its path of repeal and retreat. 
It will only continue the post-Rapanos confusion and litigation 
for many, many years.
    The work of the Clean Water Act is far from finished. 
State-generated water quality reports indicate hundreds of 
impaired waters in need of reduced pollution and increased 
protection. Narrowing the scope of the act does not advance 
these joint state and federal efforts. No one ever says that 
the water in our rivers, lakes, streams, and ponds is too 
clean, there are too many healthy fish to catch and eat, or 
that drinking water is too clean and abundant. The Trump policy 
of repeal and retreat only imperils the integrity of our 
nation's waters.
    Thank you, and I'm happy to answer any questions you may 
have.
    [The prepared statement of Mr. Kopocis follows:]
    
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    Chairman Biggs. Thank you, Mr. Kopocis.
    Mr. Hopper.

                 TESTIMONY OF MR. REED HOPPER,

                        SENIOR ATTORNEY,

                    PACIFIC LEGAL FOUNDATION

    Mr. Hopper. Thank you, Chairman Biggs, and honorable 
Committee Members, for this opportunity. I'd like to address 
three particular questions. The first is why is it important to 
be precise in identifying the Waters of the United States? The 
simple answer is that the designation of Waters of the United 
States affects millions of property owners nationwide, and the 
impact on these property owners is quite severe. When an area 
is designated as subject to the Clean Water Act, it essentially 
gives the Federal Government complete control over that 
property, allowing it to exercise a veto power over the land 
use.
    It also leaves the landowner in a no-win situation. The 
landowner who has designated property really only has a few 
options. They could simply abandon all use of the property at 
ruinous cost; they could get a permit, which has been estimated 
to cost, for an individual permit, $270,000 and 800 days in 
processing; or they can simply go forward without federal 
approval and risk civil fines of $75,000 a day and/or criminal 
prosecution. In addition, if the designation of the scope of 
the Clean Water Act is not properly drawn, it raises 
constitutional questions related to due process, impingement on 
State rights, and exceedance of the commerce power.
    The second question is, is the revision of the 2015 WOTUS 
rule justified? Again, the short answer is yes. Two courts have 
already determined on a preliminary basis that, on its face, 
the 2015 WOTUS rule is probably invalid because it is likely 
overbroad in that it overextends or exaggerates the significant 
nexus test under Rapanos and is incompatible with the SWANCC 
decision, which prohibited regulation of isolated waterbodies. 
Also, the distance limitations the Court has held are likely 
arbitrary and not supported by scientific evidence.
    In addition, the final rule doesn't look like the proposed 
rule, which denied the public proper notice and opportunity for 
comment. More importantly, these courts held that in order to 
protect the States' primary responsibility to regulate local 
land and water use and to avoid the diminishment of state 
sovereignty, that the rule needed to be stayed not only locally 
but nationwide. And one of the courts also stated that in order 
to protect the public from overreaching government, the rule 
needed to be enjoined.
    Another reason why it's appropriate to revise the rule is 
as I outlined in my law review article called ``Running Down 
the Controlling Opinion in Rapanos v. United States,'' all nine 
Justices--not five or four, but all nine Justices would agree 
that when you use the Scalia plurality test and find 
jurisdiction, Justice Kennedy would agree and the four in the 
dissent would agree so all nine Justices would concur. These 
factors not only justify but necessitate pushing the reset 
button on the WOTUS rule.
    Finally, the third question I would address is where do we 
go from here? I think the real problem is not so much the 
language we're dealing with but with the inability or 
unwillingness of the Agency to show some constraint. The EPA 
and the Corps of Engineers need to focus on protecting core 
water resources instead of pushing the envelope on federal 
power by prosecuting minor or imaginary infractions such as 
digging a ditch; creating a stock pond, as in our Johnson case; 
plowing farmland, as in our Duarte case; building a house in a 
built-out subdivision, as in our Sackett case; or asserting 
jurisdiction over isolated waterbodies, as in our Hawkes case.
    Justice Roberts took the Corps of Engineers and the EPA to 
task in the Rapanos decision for not heeding the direction of 
the Supreme Court in the SWANCC case and said that the agencies 
continued to rely on a boundless interpretation of the act 
which is not justified.
    So what do we do? How do we constrain the agencies? There 
are two possibilities. One is a legislative fix. This would be 
more appropriate because it would clarify congressional intent 
and is more defensible legally. The other one is a regulatory 
fix with specific language more constrained than the WOTUS rule 
relying on the Scalia plurality. And for specifics on a 
proposal, I refer you to my written testimony, page 15. Thank 
you very much.
    [The prepared statement of Mr. Hopper follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
        
    Chairman Biggs. Thank you, Mr. Hopper. I now recognize 
myself for my five minutes of questions.
    Mr. Mehl, since the rule has been stayed, you have a chance 
now to voice your concerns and discuss a mutual path forward 
for water regulations. The question is, do you think water 
regulations in this country need updating? And if so, what 
revisions do you think would be helpful and necessary, 
particularly in light of Arizona's case? Please turn on your 
mic. Thank you.
    Mr. Mehl. Yes, absolutely, I think some changes need to be 
made for clarity. At least in Arizona's case you have a high 
degree of prevalence of dry washes, especially in alluvial wash 
areas where water comes off mountains and sort of spreads out 
over the land, creating a high degree of complexity in 
analyzing where waters are and where waters aren't with respect 
to the existing rules.
    The 2015 rule resolve ambiguity in preference of total 
inclusion, but there's a high cost of this. There's a high cost 
in terms of what you pay for the analysis and just in the 
overall land taken through that rule. Where in Arizona where 
you have the only short number of days of rainfall a year and 
there just simply isn't much water in the system, you need to 
be able to use land for its highest and best purpose, and 
that's the mission of the State Land Department. If you have a 
rule that can show clearly what is and what is not included in 
jurisdiction, then you create a great benefit. And I think on 
the environmental side, you preserve what should be preserved 
and leave for development what should be higher density to 
prevent further sprawl and other environmental problems.
    Chairman Biggs. Thank you, Mr. Mehl.
    And, Mr. Chilton, five generations raising cattle in 
Arizona, that's not an easy thing to do. With these 
regulations, do you know of--besides the couple that you've 
mentioned, your projects on your ranch, do you know of other 
ranchers that have had to abandon projects because the 
permitting process was too expensive and time-consuming?
    Mr. Chilton. I do not know of other ranchers who have had 
to abandon projects. Basically, ranchers avoid having to bump 
up against the EPA and the Corps of Engineers. It's costly. 
It's outrageous that if you want to build a road on your 
private land and drive across a wash that you have to get a 
permit. And Mr. Hopper's point about the costs of permitting is 
outrageous. We need, and other ranchers need, a clear 
definition of a significant nexus with a navigable river. Thank 
you.
    Chairman Biggs. Thank you. And, Mr. Hopper, my 
understanding is that the EPA expanded the various definitions 
of water in its rulemaking. Does this potentially increase 
EPA's jurisdiction to regulate private property?
    Mr. Hopper. Yes--excuse me. Yes. The EPA claims that their 
new rule only expands three to four percent of the area that 
they previously recognized. However, you have to keep in mind 
that, as I just mentioned in my testimony, that the Supreme 
Court, particularly Justice Roberts, has already castigated the 
agencies for exceeding their authority and using a boundless 
interpretation. So this is three to four percent in addition to 
the boundless interpretation on which they've already relied.
    Chairman Biggs. Have you seen any other federal agencies 
attempting to expand their jurisdiction like we're seeing 
here----
    Mr. Hopper. Yes.
    Chairman Biggs. --at the EPA?
    Mr. Hopper. Yes. The Fish and Wildlife Service has done the 
same under the Endangered Species Act, and in fact we have a 
case now pending in the Supreme Court to address this very 
issue called Markle v. U.S. Fish and Wildlife Service.
    Chairman Biggs. Great. Thank you. I'm going to go ahead and 
yield back and recognize the Ranking Member of the 
subcommittee, Ms. Bonamici.
    Ms. Bonamici. Thank you, Mr. Chairman.
    The Supreme Court plurality decision in Rapanos created an 
uncertain regulatory environment and the Clean Water Rule as a 
result of the decision by the EPA and the Army Corps to provide 
regular--regulatory clarity in light of the Rapanos decision 
and to better define Waters of the United States. And this 
effort involved considering how to address the two distinct 
tests in Rapanos, one by Justice Kennedy and one by Justice 
Scalia, about what constitutes a water of the United States. 
And every federal court of appeals decision to consider this 
question, including one just two days ago in United States v. 
Robertson in the Ninth Circuit has held that Justice Kennedy's 
test to define a water of the United States is a valid test to 
apply.
    Now, some have held that either test can be used. However, 
some critics of the Clean Water Rule suggest that Justice 
Scalia's test should be the exclusive test. The reason federal 
courts have used Justice Kennedy's test as an appropriate basis 
for determining what is protected is because of Supreme Court 
precedent describing how plurality decisions should be 
interpreted. This precedent makes clear that Justice Kennedy's 
test at a minimum should be used and that Justice Scalia's test 
should not be the exclusive basis for protection.
    Mr. Kopocis, in light of these federal court decisions, is 
there any legally justifiable reason for using Justice Scalia's 
test as an exclusive basis for Clean Water Act coverage?
    Mr. Kopocis. No, there is not. When I was at the Agency, 
our Office of General Counsel consulted extensively with the 
Department of Justice as to how to best interpret the Rapanos 
case and how to apply it, and it was the decision of all of the 
attorneys involved that the precedent from the Supreme Court 
was very clear as to how to interpret a plurality decision, and 
that's been reflected in all of the circuit courts to date that 
have ruled on the issue.
    Ms. Bonamici. Thank you. And, Mr. Kopocis, now, I've heard 
from some Oregonians. They've expressed some concern that the 
Clean Water Rule might affect their family farms and how they 
manage their lands. And you heard Mr. Chilton's story. What 
would you say in response to those who express those concerns?
    Mr. Kopocis. We at the Agency in developing the rule took 
the interest of agricultural properties very much into 
consideration. We expanded upon the existing agricultural 
exclusions from jurisdiction, which is significant because if 
it's outside of the jurisdiction of the act, you don't even 
have to worry about whether a permit is required. We preserved 
all of the existing exclusions from jurisdiction, the ones for 
prior converted cropland, for example, all the permit 
exclusions or exemptions that are in the act. We even went back 
in response to the comments and specifically excluded the 
concept of puddles. The agencies had long said that puddles 
were not jurisdictional in their informal documents, but--we 
didn't think it was necessary to put that in the proposal, but 
we were criticized for not doing so, so we put it back in. So 
we wanted to make sure that there was no ambiguity that things 
such as puddles, erosional features, and the like on 
agricultural lands or any other land would not be 
jurisdictional.
    Ms. Bonamici. And you heard the testimony this morning by 
the other witnesses. Are the points that they brought up any 
different from the points that were brought up during the whole 
Clean Water Rule public comment process?
    Mr. Kopocis. No. We received, as you said, over a million 
comments on the rule. They covered every aspect of what the 
Agency should or should not do from the standpoint of the 
proposal, plus also how to make the program work better. We 
carefully evaluated all those comments and we made changes to 
the rule based on those comments.
    Ms. Bonamici. And could you also address the issue of the 
ephemeral or intermittent streams and elaborate on the role 
that intermittent and ephemeral streams play on the health of 
downstream waters? And also--and there's just a minute left, 
but could you also talk about wetlands and, considering the 
great economic and environmental benefits associated with 
wetlands, what would be the consequences of wetland habitat if 
the Clean Water Rule were not implemented?
    Mr. Kopocis. Well, intermittent and ephemeral streams are 
the feeder streams of all of our Nation's rivers, lakes, ponds, 
et cetera. So if they are destroyed or polluted, then you will 
not be able to protect the larger waterbodies because it's 
simply impossible. They are basically the capillaries of the 
circulatory system of the hydrologic cycle. So it is important. 
And it's also important to note that the agencies have long 
asserted jurisdiction over intermittent and ephemeral streams. 
This is not a concept that was new to the rule.
    As to the value of wetlands, the values of wetlands have 
been stated multiple times and have been calculated, but there 
are tens of millions of people who spend billions of dollars a 
year in wetlands-related activities, and that can be monetized. 
There is also the value of wetlands that they provide in terms 
of water quality and stormwater retention and reducing floods. 
If anybody doubts the value of wetlands, they don't need to 
look farther than the State of Louisiana, which is spending 
billions of dollars to restore their coastal Louisiana wetlands 
to protect the city of New Orleans and other communities.
    Ms. Bonamici. Thank you. My time is expired. Thank you, Mr. 
Chairman.
    Chairman Biggs. Thank you. The Chair recognizes the Vice 
Chair of the Subcommittee, Mr. Banks from Indiana.
    Mr. Banks. Thank you, Mr. Chairman, and thank you for 
holding this important hearing today. After hearing the 
testimony, I am more convinced than ever that the original 
WOTUS rule is an assault on transparency and accountable 
government. It was overly vague; it ignored the legitimate 
concerns raised by farmers, ranchers, and business owners; 
utilized an overly broad interpretation of navigable waters 
unjustified by the underlying statute; and encroached on the 
rights of States to regulate waters within their jurisdictions.
    I was proud to lead a letter earlier this year to Secretary 
Pruitt in support of the Agency's decision to review and 
rescind the original rule while also urging for its permanent 
withdrawal. I'm glad that the Administration is taking this 
issue seriously by working to rollback this rule.
    WOTUS is a great example of what is wrong with our current 
regulatory process. Instead of working with stakeholders and 
carefully weighing trade-offs, the EPA looked to punish farmers 
and ranchers with no concern as to the rule's detrimental 
effects. The rule failed to acknowledge any limits on its own 
authority by ignoring the plaintext of the Clean Water Act, as 
well as the Supreme Court precedent in order to implement its 
ideological agenda. Unelected bureaucrats making laws is a 
direct threat to our constitutional system of government, and 
it is our job as elected representatives to make sure that 
these gross oversteps are stopped.
    So with that, Mr. Hopper, in your testimony you write, 
quote, ``On its face, the rule conflicts with the language of 
the Clean Water Act and Supreme Court cases interpreting the 
act. The rule also usurps the traditional power of the States 
to manage local land and water resources and nullifies 
constitutional limits on federal authority,'' end quote. Your 
testimony then goes on into detail about the lack of scientific 
justification for the rule and the regulatory overreach of the 
EPA.
    So with that, could you provide a brief overview again of 
the ways that the EPA overstepped its authority of the rule?
    Mr. Hopper. Yes. Thank you for the question. I would refer 
you not merely to my testimony but to what my testimony relies 
on, which is the conclusion of the District Court of North 
Dakota, as well as Sixth Circuit, which arrived at those same 
conclusions. Even if the Kennedy test were to be the applicable 
standard, these courts found that the Agency exceeded the 
significant nexus standard.
    In addition, it seems obvious to me that, as we look back 
at this 2001 SWANCC decision wherein the Supreme Court said 
that the regulation of ponds and mudflats exceeded the 
traditional power of the States to regulate local land and 
water use and raised constitutional questions that the same 
thing applies here, so I think if you simply look at what the 
Supreme Court has already said, what the two courts said that 
have stayed the rule, and one's own reading and common sense 
suggests that this goes beyond any statutory or constitutional 
limit recognized by the Court so far.
    Mr. Banks. Okay. There are nearly 12,000 farms in my 
district, and since a severe rainstorm could create standing 
water on every farm, it is conceivable that every one of the 
farms I represent could have been subject to this rule. So as a 
follow-up, what kind of effect--do you agree with that? Could a 
severe rainstorm create standing water on every farm that could 
be subject to the rule? And what kind of effect would that have 
on agricultural output?
    Mr. Hopper. In 2012, Pacific Legal Foundation won a 
unanimous Supreme Court victory in what's called the Sackett 
case in which we challenged the right of an individual or 
sought to seek the right of an individual to go to court to 
question federal jurisdiction when the EPA issues a compliance 
order. In the opinion that followed in our favor, as I said, 
unanimously, Justice Alito himself said that under the Agency's 
interpretation of the Clean Water Act it covers virtually any 
wet spot in the country, so I would affirm what you just said.
    Mr. Banks. Okay. Thank you. I yield back.
    Chairman Biggs. Thank you. The Chair recognizes the 
gentlelady from Hawaii, Ms. Hanabusa.
    Ms. Hanabusa. Thank you, Mr. Chair. Mr. Chair, I'd like to 
have unanimous consent to put into the record a 2013 report 
from the Environmental Law Institute entitled ``State 
Constraints: State-imposed Limitations on the Authority of 
Agencies to Regulate Waters Beyond the Scope of the Federal 
Clean Water Act.'' This assessment found only half of all the 
States currently protect waters more stringently than the 
federal Clean Water Act requires. This report determined that 
the States are not currently filling the gap left by the United 
States court ruling limiting the Clean Water Act and face 
significant obstacles doing so.
    Chairman Biggs. Without objection.
    [The information appears in Appendix II.]
    Ms. Hanabusa. Thank you. Mr. Chairman, I'd also like to 
have the letter from sportsmen and women's groups including the 
National wildlife Federation, the Theodore Roosevelt 
Conservation Partnership, Trout Unlimited, and the Arizona 
Wildlife Federation and others, all supporting the Clean Water 
Act protections laid out in the Clean Water Act rule and oppose 
rolling back these protections. They note hunters and anglers 
broadly celebrated the Clean Water Rule because it would help 
clarify federal jurisdictions over Waters of the United States 
and conserve roughly 60 percent of the stream miles and 20 
million acres of wetlands at risk of being polluted or 
destroyed because of the jurisdictional confusion.
    Chairman Biggs. Without objection.
    [The information appears in Appendix II.]
    Ms. Hanabusa. Thank you, Mr. Chair.
    Mr. Kopocis, I have some questions of you. First of all, 
you use a very interesting phrase called repeal and retreat. So 
what is it that you are so concerned about that the repeal of 
the rule would result with?
    Mr. Kopocis. Well, repealing the rule will eliminate the 
advantages of the rule to provide greater clarity as to what is 
and is not jurisdictional under the Clean Water Act in a post-
SWANCC and post-Rapanos world. The trouble that the agencies 
had to deal with particularly after Rapanos was that the 
agencies were told that the reliance on waters that the 
pollution or destruction of which could have an adverse effect 
on interstate commerce was not the test to be used. So you had 
a rule that was out of sync with boththe Scalia opinion and the 
Kennedy opinion.
    So as the Agency attempted to address that--and obviously, 
there's some disagreement as to how successful the Agency was--
but the Agency was trying to address that particular issue. So 
repealing it only restores the very confusion that everybody--
and I will say everybody, whether it was the environmental 
community, the fish and wildlife community, it was the 
construction community, it was Republicans, Democrats, State, 
local, federal. Everybody that came said you've got to fix 
this. And so what they're about to do is unfix it and put it 
back to those days.
    The reason I refer to retreat is that if there's going to 
be an effort to form a rule based on the Scalia opinion, it 
will cover a very narrow set of waters which will eliminate the 
protection for as much as 60 percent of the Nation's waters. 
That is a serious, serious retreat from what this Congress 
enacted in 1972.
    Ms. Hanabusa. Mr. Kopocis, one of the things that I do 
follow is administrative rulemaking, and I did want to confirm 
with you that you had over a million public comments over a 
period of 207 days, and the Agency held over 400 public 
meetings all across the country. And you personally attended 
about 70 of these meetings in your prior capacity both in 
Washington and across the country. Can you tell me, after 
hearing all of this, why you still remain so confirmed--so firm 
in your belief that the rule should not be repealed?
    Mr. Kopocis. Well, I think that when we set out to 
undertake it, we also set out to develop what was the best 
available science, and the work of our Office of Research and 
Development at EPA in developing that science was extensive. 
They originally looked at over 1,000 previously peer-reviewed 
documents. EPA did not create any of the science. They then, 
through the course of review and public comment, added another 
couple hundred documents to that report and came up with the 
conclusion on the interaction of waters and how upstream waters 
and their pollution or destruction affects downstream and 
adjacent waters. And so it was critical that the agencies apply 
the best available science.
    As I said, nobody has brought forward better science or 
said that the science the agencies used was bad. And then the 
agencies had to apply the law as interpreted both from the 
legislative history and the words of the Clean Water Act and as 
interpreted by the three Supreme Court cases where the Court 
had opined.
    Ms. Hanabusa. Thank you very much, and, Mr. Chair, I yield 
back.
    Chairman Biggs. Thank you. And the Chair recognizes the 
gentleman from California, Mr. Rohrabacher.
    Mr. Rohrabacher. Thank you very much, Mr. Chairman.
    Let me just--we have a cattlemen with us here, Mr. Chilton. 
Mr. Chilton, you are really not in the cattle business; you are 
in the moneymaking business. Everything you do is aimed, just 
like everybody else. We're working our jobs, but we really are 
doing it to earn a living.
    But in your earning your living, you're providing meat for 
my family and I appreciate that, and I'd just like to know 
that--do these water issues impact on the price of the 
hamburgers that I'm buying?
    Mr. Chilton. I would say yes. The cattle business is one of 
the largest businesses in the Nation, and as it's impacted 
adversely by bureaucrats at the Environmental Protection Agency 
and the Corps of Engineers, it raises the cattlemen's costs. 
And it's absolutely absurd to think that the rules--the 2015 
rules, which were over a half-inch thick, are easy to 
understand or--they're ambiguous and I can't----
    Mr. Rohrabacher. Did you have to hire a lawyer to----
    Mr. Chilton. Yes. And consultants and lawyers.
    Mr. Rohrabacher. Now, let me ask about the consultants and 
lawyers. The fee that you had to pay them, did you add it on to 
the price of the meat for the hamburger that I have to buy for 
my kids?
    Mr. Chilton. No, it took away from my profits.
    Mr. Rohrabacher. Okay. Well, that's good. That's a fair 
answer. And let me just note if the cattlemen don't make a 
profit, my kids are going to pay more for their hamburger. 
And--just like every other business unless you take away a 
profitability.
    Now, let me ask you this. When I was a kid, my family came 
from North Dakota and we'd go back and visit. My dad was a 
marine, and we'd go back and visit our relatives. And we were 
relatively poor people, I might add. I remember that there 
were--on these roadsides out in the middle of nowhere there 
were these gullies, and I guess ditches was a better 
description of them, and they'd fill up with water and my 
cousins would go out and they could actually get some crawfish 
out of those ditches.
    And let me ask you this. Today, if--according to the rules, 
if something goes on with those ditches and a federal 
bureaucrat or a Federal Government employee now has power, do 
they have power over the water in those ditches? I'd ask that I 
guess to Ken. You go right ahead.
    Mr. Kopocis. Thank you for the opportunity to answer that 
question because one of the items that we did take care of in 
the rule from proposal to final was we excluded virtually all 
the roadside ditches from the jurisdiction. We wanted to make 
that clear. So the answer--I can't speak to the specifics, but 
it is highly much more likely than not that the ditches you 
describe would not----
    Mr. Rohrabacher. Okay. So the question--I think the 
question we have to have now is do we really want to expand the 
federal definition of what those ditches are like you have just 
described? We took those ditches out? Why do we have the 
Federal Government making that determination? Shouldn't that 
be--I mean, that should be left up to local people. Why are 
local people any more less sympathetic with these important 
issues we're talking about, the cost of this man's doing 
business or the cleanliness of the water that everybody 
consumes in that area? Why is the Federal Government more 
sympathetic to the needs of the people than a local bureaucrat 
or a local government official?
    Mr. Kopocis. Well, that's--the 2015 rule would have given 
all of that authority to State and local officials. By saying 
that these would not be jurisdictional, the Federal Government 
would have no role.
    Mr. Rohrabacher. Yes, I--on those ditches?
    Mr. Kopocis. On those ditches, yes.
    Mr. Rohrabacher. But not on these dried-up riverbeds that 
we're talking about and they will determine what's a ditch and 
what's a dried-up riverbed.
    Now, let me just ask one last thing. Of course, when it 
comes down to California, you have to understand we were just 
in a big drought in California. And this was a drought that 
lasted 3 or four years. And in the middle of the drought we had 
people who were so nutty that we actually channeled millions 
and hundreds of millions of gallons of fresh water into the 
ocean in order to save a little thing called Delta smelt. Now, 
let me just note that crawfish are really important, I think, 
but they're not important enough to give all this power to the 
Federal Government and maybe to have some really horrible 
economic decisions on the industry that provides us our meat. 
And what we learned in California, sometimes people are so 
crazy and so fanatic about every--about endangered species and 
things such as that that they will hurt the well-being of 
regular people, as they did when they put all of that water, 
fresh water into the ocean in the middle of a drought in 
California.
    Chairman Biggs. The gentleman's time is expired.
    Mr. Rohrabacher. Oh, thank you very much, Mr. Chair.
    Chairman Biggs. Thank you. Thank you. The Chair recognizes 
the gentleman from Texas, Mr. Weber.
    Mr. Weber. Thank you, sir. All right here we go. I'm going 
to read from the President's executive order. I just can't 
hardly be quiet anymore if I can get my iPad here working.
    In his order February 28, 2017, section 1 policy, ``It is 
in the national interest to ensure that the Nation's navigable 
waters are kept free from pollution, while at the same time 
promoting economic growth, minimizing regulatory uncertainty,'' 
which was referred to by the gentlelady from Oregon--we'll talk 
about that in a minute--``and showing due regard for the roles 
of Congress and the States under the Constitution.'' Mr. 
Chairman, I'd like permission--unanimous consent to read into 
the record the Tenth Amendment--have it placed in the record 
rather.
    Chairman Biggs. Without objection.
    [The information appears in Appendix II.]
    Mr. Weber. Thank you. Mr. Chilton, you said you've been 
farming or you've been ranching--your family has for 127 years. 
Is that true?
    Mr. Chilton. That's exactly true, yes.
    Mr. Weber. Are you glad that your great-grandparents, your 
grandparents, and your parents took care of their property and 
you were able to do the same kind of ranching?
    Mr. Chilton. I am.
    Mr. Weber. They did a good job, didn't they?
    Mr. Chilton. They really did a good job, and we really have 
an excellent ranch with wonderful grasses, and we take care of 
our land.
    Mr. Weber. It's in your vested interest, isn't it?
    Mr. Chilton. It is.
    Mr. Weber. You said early in your testimony that you had to 
get a permit and you had to pay a lot of good money to an 
environmental attorney. Is there any other kind of money, Mr. 
Chilton, than good money?
    Mr. Chilton. All money is good and----
    Mr. Weber. Absolutely. And you're tired of giving it to a 
lawyer, right?
    Mr. Chilton. I hate giving it to the lawyers----
    Mr. Weber. I don't----
    Mr. Chilton. --and I hate listening to lawyers.
    Mr. Weber. I don't blame you at all.
    Mr. Kopocis, I'm going to come to you. Is the Supreme Court 
ever wrong?
    Mr. Kopocis. The Supreme Court is the law of the land. 
There are----
    Mr. Weber. That's not what I asked. Does Brown v. Board of 
Education, Plessy v. Ferguson, or Dred Scott cases ring a bell 
with you where they actually reversed themselves?
    Mr. Kopocis. Yes, they--yes----
    Mr. Weber. Okay. So they--we do know they are wrong?
    Mr. Kopocis. They do reverse themselves from time to time, 
yes.
    Mr. Weber. Okay. So they do make mistakes. All right. So in 
your discussion--in your exchange with the gentlelady from 
Oregon, she made the comment that it created regulatory 
uncertainty, but I will tell you that the regulatory 
uncertainty was created long before the case got to the Supreme 
Court. It was created by an overreach of the Federal 
Government. The Tenth Amendment, the reason I want it read into 
the record is because you just got through with Dana 
Rohrabacher saying that the 2015 rule gave the States the 
authority. I will tell you that is so patently false on its 
face. Read your Constitution. The Federal Government is 
delineated with what their responsibilities and what their 
powers are by the Founders of this country. All others are 
given to the States and the people respectively, period, end of 
sentence. That's just exactly the way it is. When the Federal 
Government starts feeling like it has to dole out power to the 
States, something is wrong, terribly wrong with this country.
    Let me continue. That's my op-ed for the minute, okay? I 
hope I wasn't too forceful to you. If I was, tough.
    Mr. Kopocis. Well, perhaps----
    Mr. Weber. I'm going to go----
    Mr. Kopocis. Perhaps I should've said that they basically 
just took the Federal Government out of it.
    Mr. Weber. Okay.
    Mr. Kopocis. It wasn't an affirmative----
    Mr. Weber. If we can get you on record of wanting to take 
the Federal Government out of the WOTUS, we're all for that. 
Are you on record saying you want to take the Federal 
Government out of it?
    Mr. Kopocis. I don't believe that the Federal Government--
--
    Mr. Weber. Okay. Mr. Hopper, I'm going to come to you. In 
President Trump's executive order February 28, '17, I just 
read, he directs EPA and the Army Corps to consider the Scalia 
opinion in the Rapanos case in its revisions to WOTUS. I've got 
two questions really. I've got about a minute left. What is the 
difference between Justice Scalia's approach and Justice 
Kennedy's and why does it make more sense to follow Justice 
Scalia's, Mr. Hopper?
    Mr. Hopper. First, to the second question, as I outlined in 
my law review article, it's required by law to rely on the 
plurality decision authored by Justice Scalia than it is the 
Kennedy approach under the Supreme Court's Marks decision, 
which says when you have a split decision, you look at those 
Justices who agreed in the final judgment, which would be the 
four in the Scalia plurality and Justice Kennedy. You never 
look to the dissent. All these other courts that have held that 
the Kennedy test is controlling have relied on the dissent. 
This is----
    Mr. Weber. And isn't that interesting?
    Mr. Hopper. Yes, it is. And that's contrary to the express 
decision by the Supreme Court in Marks.
    Your other question was?
    Mr. Weber. What was the difference between the Scalia 
approach and the Kennedy's?
    Mr. Hopper. Yes, the difference is significant. Mr. Kopocis 
is right that there's no question that the Scalia plurality is 
going to be narrower, and that's why it falls under the Marks 
decision. When you have two competing concurring opinions, you 
look to see whether one is a subset of the other, and the 
Scalia plurality decision is a subset of the larger 
interpretation of Justice Kennedy.
    Mr. Weber. Good point.
    Mr. Hopper. The major difference, however, is that under 
the Scalia plurality, it's fairly definite in that it describes 
relatively permanent tributaries and abutting wetlands that are 
indistinguishable. However, through the significant nexus test, 
it's--it can only be applied on a case-by-case basis, and 
that's where the lack of clarity comes. And the WOTUS rule that 
was published in 2015 continues to rely on this case-by-case 
analysis, which gives nobody any security or certainty. Judge 
Kelly in the Eighth Circuit said, interestingly enough, the 
Clean Water Act is the only law I know of where you have to 
hire an expert to determine if it even applies to you, not to 
mention an attorney.
    Mr. Weber. Thank you, Mr. Hopper.
    Thank you for your indulgence, Mr. Chairman.
    Chairman Biggs. Thank you. The Chair recognizes the 
gentleman from Texas, Mr. Babin.
    Mr. Babin. Thank you, Mr. Chairman, and I thank you, 
witnesses, for being here.
    Mr. Hopper, you mentioned in your testimony that the draft 
2015 WOTUS rule in the final rule had substantial differences 
within it. Were these differences subject to public notice and 
to public comment?
    Mr. Hopper. Yes, absolutely. That was one of the reasons 
why the rule was stayed by the District Court of North Dakota 
and the Sixth Circuit Court of Appeals is because there was 
such a substantial difference between the proposed rule and the 
final rule, particularly with respect to these distance 
limitations of 4,000 feet and the 1,500 feet, and the 100-year 
floodplain.
    Mr. Babin. Absolutely. So these changes are substantial 
enough to have warranted this extension period?
    Mr. Hopper. Without question.
    Mr. Babin. Yes. Okay. And then also in a May 29, 2015, 
interview with PBS NewsHour, previous EPA Administrator Ms. 
Gina McCarthy stated the following, quote, ``The farmers will 
know very clearly here that we are clearly explaining that 
irrigation ditches are not included. We have clearly said in 
the rule and beyond this rule as absolutely no new regulatory 
or permitting issue for agriculture whatsoever.'' Do you agree 
with this statement?
    Mr. Hopper. No. In fact, I remember reading--writing a blog 
post saying that the Administrator's a prankster because if she 
had read her own rule, she'd realize that it's not clear. Even 
if the--there's been no change in the exemptions, the statutory 
exemptions for agriculture, that in itself constitutes a 
problem because the Agency has a history of defining these 
exemptions so narrowly as to eviscerate them. For example, 
there's an exemption for farming. Common farming practices 
should not be subject to Clean Water Act jurisdiction. However, 
common farming practices are interpreted to mean what's common 
and ordinary on that particular farm, not what's common and 
ordinary in the industry. We think that's bogus, undermines the 
exemption and the statute, and I think we're going to see the 
same type of thing with any other exemption like ditches.
    Mr. Babin. Right. So we're looking at an enormous overreach 
by unelected federal bureaucracy.
    Mr. Hopper. By any definition.
    Mr. Babin. Absolutely. Okay. And then, Mr. Chilton, how can 
a landowner possibly be expected to know prior to any digging 
that any water encountered would be, quote, ``groundwater'' and 
therefore exempt or shallow sub service and therefore subject 
to the Clean Water Act requirements or even to fines?
    Mr. Chilton. Well, most farmers and ranchers want to do a 
good job and earn a living, and you can't really determine when 
you have an ambiguous overreaching rule that isn't easily 
understood. I don't know how you tell the difference between a 
groundwater issue and whether it's a surface water issue. It's 
very difficult, and one has to, under the 2015 rule, hire 
consultants and attorneys to answer that question. Is there a 
significant impact? In our area the Santa Cruz River doesn't 
even reach a navigable river here. I mean, it's outrageous the 
way the County of Pima has to go through all the treacherous 
paperwork that is imposed on them by the Environmental 
Protection Agency and the Corps of Engineers when the Santa 
Cruz River doesn't even reach a navigable river. It's 
outrageous. And in terms of groundwater, let the State control 
what is groundwater and what is surface water.
    It's difficult. It's ambiguous, and it's expensive. We have 
an overreaching Federal Government. Remember, the States 
created the Federal Government, and now the Federal Government 
is ruling with a high--with an iron hand. And I hate to say 
this, Ken, but bureaucrats like you are overreaching. It's 
outrageous.
    Mr. Babin. Thank you, Mr. Chilton. My time is expired, Mr. 
Chairman.
    Chairman Biggs. Thank you.
    Mr. Babin. I appreciate it, though.
    Chairman Biggs. Thank you. The Chair recognizes the 
gentleman from Georgia, Mr. Loudermilk.
    Mr. Loudermilk. Thank you, Mr. Chairman. I thank all the 
panel for being here.
    I want to just open with one quick question, yes or no 
question. Commissioner Mehl, do you agree with the Waters of 
the United States rule?
    Mr. Mehl. The 2015?
    Mr. Loudermilk. Yes.
    Mr. Mehl. No, I do not.
    Mr. Loudermilk. No. Mr. Chilton, do you agree with that?
    Mr. Chilton. Absolutely no.
    Mr. Loudermilk. Mr. Hopper, do you agree with it?
    Mr. Hopper. No.
    Mr. Loudermilk. Seventy-five percent of our panel just said 
no, they don't agree with it, but, Mr. Kopocis, back in August 
of this year you co-authored an op-ed on the Hill that was 
entitled ``Trump Plans to Roll Back Environmental Rule Everyone 
Agrees On.'' Can you define who everyone is? I mean, I--when I 
go back to my district, I do not hear this, that everyone 
agrees with it, so I think that the title may be a bit 
misleading at the best. But I would say that's kind of 
consistent from what I've seen in the three years I've been in 
Congress with the EPA has a history of using any means or 
method to achieve a goal that it wants, regardless of fact, 
law, or public opinion, and I want to address some of those 
issues with you today.
    I think possibly maybe some of the reason you say everyone 
agrees with this rule is, as you said several times in your 
statement and responding to questions was there was 
unprecedented public comment. I believe I read somewhere 
recently that you or someone commented that 87.1 percent of 
those commented in favor of the Waters of the United States. Do 
you recall that, that----
    Mr. Kopocis. I don't believe that was a statement that I 
made.
    Mr. Loudermilk. Okay. But----
    Mr. Kopocis. That sounds about right.
    Mr. Loudermilk. Okay. The majority of the people were in 
favor it, but it's interesting because the New York Times came 
out in 2015 with an article that uncovered that the Agency was 
actually involved in what the GAO has now determined was an 
illegal social media campaign called Thunderclap. Are you 
familiar with that?
    Mr. Kopocis. Yes, I am.
    Mr. Loudermilk. You're familiar with that. So in fact one 
of your colleagues at the American University stated that the 
Agency is supposed to be more of an honest broker, not a 
partisan advocate in the process. Now, I was surprised to learn 
that the Agency was actually using social media to generate 
support for Waters of the United States. In fact, through a 
FOIA request by Judicial Watch, the former EPA Director of Web 
Communications admitted that she did not want, quote, ``it to 
look like EPA used its own social media accounts to gain 
support for the rule'' even though you partnered with Sierra 
Club and some other grassroots organizations. In fact, as I 
mentioned, the Government Accounting Office stated that you had 
``violated publicity or propaganda and anti-lobbying provisions 
contained in appropriations acts in association with its Waters 
of the United States rulemaking.''
    So do you agree with the statements of your colleague? In 
fact, again, Professor Lubbers said that a guide to federal 
agency--that--I'm sorry. ``I have not seen before from a 
federal agency this stark of an effort to generate endorsements 
of a proposal during an open comment period.'' Were you aware 
of the Thunderclap in the generating of popular public opinion 
during this rulemaking period?
    Mr. Kopocis. I became aware of the Thunderclap incident 
after it had occurred. The--I was not--that was something that 
was handled by our communications--our communications staff. We 
did--I'm familiar with the GAO letter on the issue where they 
found--they found some minor violations of the appropriations 
law. The Agency disagreed with the Agency's conclusions--with 
GAO's conclusions, as did the Department of Justice.
    Mr. Loudermilk. Okay. Well, I mean, I think most of the 
people in the country expect our agencies to--when you have a 
public comment period to be honest brokers in listening to 
public opinion, not generating public opinion but again--and 
I'll close with this--I think it's been in the history of the 
Agency following this. In 2015, the Science Committee obtained 
documents from the EPA demonstrating the EPA had avoided the 
regulatory impact analysis process at the Office of Management 
and Budget. If you recall, there was a question that you have 
to do an impact analysis if a rule or regulation exceeds a 
certain fiscal impact on the Nation, which was the question.
    Can we bring up the slide, please?
    [Slide.]
    Mr. Loudermilk. Okay. This was an email that we actually 
brought up in a hearing when we had Director McCarthy in a 
while back, and I want you to follow along. And let's start at 
the bottom of the email. This was an email from Jim Pendergast, 
who I think you're familiar with, and basically, in the second 
sentence of the first paragraph in the last part says, ``You 
relayed to us that Greg Peck said the rule now considered 
significant that OMB was like--was unlikely to change that 
designation and that''--and basically that you have to do this 
impact study. It went on in the second paragraph that the rule 
is now considered economically significant by OMB, so it would 
require this impact study.
    If you go up to the next email, ``So just got off the phone 
with Sandy and Tomeka. They say that Nancy and Ken know that an 
RIA may be necessary but they are--but that there are some 
economically significant rules EPA haven't had an RIA,'' even 
though the law says you have to do it.
    Chairman Biggs. The gentleman's time has expired. Perhaps 
Mr. Higgins who's next on the list will yield you some time.
    Mr. Loudermilk. Thirty seconds.
    Mr. Higgins. I'd like to yield to my colleague.
    Chairman Biggs. He yields 30 seconds, Mr. Loudermilk.
    Mr. Loudermilk. Thank you, Mr. Chairman. And with this, 
``At last, good news. Tomeka and Sandy talked to Ken. Ken said 
it has been agreed that we do not need an RIA.'' This kind of 
fits into what we've seen is that the law doesn't matter, the 
public opinion obviously doesn't matter, and rules don't 
matter--is--do you think that you--that it's acceptable just to 
make an opinion that you don't need an impact analysis and then 
go forward with that?
    Mr. Kopocis. The requirement to do the impact analysis 
comes out of an executive order, does not come out of a statute 
or the public laws. It is something that is routinely 
negotiated between the agencies and the Office of Management 
and Budget, their Office of Information and Regulatory Affairs, 
OIRA, and that is something that there were extensive 
conversations between the Agency and OIRA----
    Mr. Loudermilk. Did Gina McCarthy negotiate that?
    Mr. Kopocis. I am not--I don't recall that Gina McCarthy 
was personally involved.
    Mr. Loudermilk. Thank you, Mr. Chair.
    Chairman Biggs. Thank you. The Chair recognizes the 
gentleman from Louisiana, Mr. Higgins.
    Mr. Higgins. Thank you, Mr. Chairman. In the interest of 
time, I'll ask your answers to be brief. Mr. Kopocis testified 
that the 2015 Waters of the United States rule used the best 
science available. Mr. Hopper, do you agree that the rule used 
sound science and the best science available?
    Mr. Hopper. The answer is no, and the two courts agreed.
    Mr. Higgins. Thank you for your answer. Mr. Kopocis, thank 
you for appearing before us today. Are you familiar with the 
enumerated powers of our Constitution?
    Mr. Kopocis. Yes. I----
    Mr. Higgins. Article II, sections 2 and 3 gives the 
President constitutional authority to issue proclamations and 
orders, thereby the--according to the constitutional 
parameters, the 2015 Waters of the United States rule, as 
amended by President Obama, would be legal, don't you agree?
    Mr. Kopocis. I'm sorry. I didn't follow the question, Mr. 
Higgins.
    Mr. Higgins. In other words, there's executive authority 
for altering of rules at the federal level granted to the 
President of the United States. So----
    Mr. Kopocis. Yes, sir----
    Mr. Higgins. President Obama's ruling was legal. Do you 
agree?
    Mr. Kopocis. The Clean Water Rule that was----
    Mr. Higgins. That was amended.
    Mr. Kopocis. --2015 was--yes, I believe it was legally 
promulgated.
    Mr. Higgins. All right. So if it was constitutionally sound 
for President Obama to alter the rule, don't you agree that it 
is constitutionally sound for President Trump to do the same?
    Mr. Kopocis. Oh, I don't raise any question about his 
constitutional authority.
    Mr. Higgins. All right. Let's move forward. I'd like to 
give you an example, sir, of a town that exists within the 
district I represent, south Louisiana. This is a small town of 
just a few thousand folks. It's economically sound. A railroad 
runs through it. Those folks work hard to develop their 
community, and they of course have to deal with rain.
    Decades ago at the southern parameters of that 
municipality, a ditch was dug. A 12-mile ditch was dug through 
private property owned by five Americans, all of whom had--have 
family, grown up together, they've known each other for 
generations, they're family within this community. This 
drainage ditch was designed to collect the rainwater and runoff 
and bring it to a more major navigable waterway 12 miles 
through private land.
    Over the course of decades, the ditch deteriorated. And 
because of the 2015 Waters of the United States rule, although 
this municipality of American citizens and the five private 
landowners that owned the land where the original ditch was 
established were not allowed to reestablish the original 
parameters of this relatively small ditch through their own 
land because of the interpretations of the Waters of the United 
States regarding wetlands, do you feel that that's reflective 
of our Founding Fathers' intent regarding the union of 50 
sovereign States and the rights of the citizens that live 
therein?
    Mr. Kopocis. Well, first of all, I'm a little puzzled as to 
how the 2015 rule could have affected this ditch since it was 
in effect for only a matter of a few days. It has been on--it's 
been stayed----
    Mr. Higgins. Because the interpretation of the Corps of 
Engineers determined that that private land was wetlands based 
on broad interpretations from one Corps command-and-control 
center to the next.
    Mr. Kopocis. Well, Mr. Higgins, the waters in question may 
have been jurisdictional, and they may have been jurisdictional 
since 1972. I really can't speak to the specifics of that.
    Mr. Higgins. I'll just ask you as an American, sir. Do you 
think that that's right, that a private landowner cannot 
reestablish a ditch as decades-old to allow water to flow to 
protect his neighboring communities?
    Chairman Biggs. The gentleman time is expired. If you 
choose to answer, Mr. Kopocis, you may.
    Mr. Kopocis. Thank you. I will briefly. Since 1977, the 
service and maintenance of existing ditches is exempt from 
permitting requirements under the Clean Water Act. And as to 
your point as to private property, a lot of the waters that are 
subject to the clean water jurisdiction are on private 
property. If we were to exclude all waters that are on private 
property, the only waters left would be those that form 
interstate boundaries or are on federal land.
    Mr. Higgins. Thank you, Mr. Chairman.
    Chairman Biggs. Thank you. The Chair recognizes the 
gentleman from South Carolina, Mr. Norman.
    Mr. Norman. First, I want to thank each of you for taking 
the time.
    Mr. Chilton, your experiences with what you went through 
with trying to cut a small ditch is ridiculous, and it's 
unelected bureaucrats who are causing this country more 
trouble. And my response back to most of them is to let you pay 
for it.
    Mr. Mehl, let me ask you. The EPA under the previous 
Administrations claimed that they are not regulating land with 
this rule. If you regulate water in a real sense, aren't you 
really regulating land use? And even though the Agency has that 
it does not intend to take over private property, how can the 
Agency deny that by expanding vastly its definition of the 
Waters of the United States, it effectively is limiting the 
activities that can occur on your private property? Is this not 
the case?
    Mr. Mehl. Yes, sir. The rule does affect land use. 
Obviously, it affects density, it affects configurations of 
what you can develop. In Arizona where you have situations 
where water spreads over large areas, you have a tremendous 
impact as you really have to make decisions about what goes 
where, and those are traditionally decisions made at a local 
level about zoning.
    And with respect to the water it's not even a question of 
polluting or preventing water from going from one place to 
another because largely engineering will do that. We want to 
develop certain lands. You can direct the water around these 
developments so that they go from the same point A to the same 
point B. And our only subject to fill such as dirt and concrete 
and steel.
    The true impact is on what you can do with that land, and 
so it is a land-use regulation. And it's tremendously 
destructive for value.
    Mr. Norman. And that's the effect that you're basically 
taking somebody's private land.
    Mr. Mehl. Yes.
    Mr. Norman. Mr. Chilton, the 2015 WOTUS rule sought to 
regulate isolated waterbodies like dry washes. This is a 
significant stretch in the federal authority from the previous 
interpretations of the Waters of the United States. How would 
regulations over these isolated waterbodies impact your 
operation? And as you've got a pretty big operation--in other 
agricultural operations in Arizona?
    Mr. Chilton. First, our dry washes run into other dry 
washes that run into dry rivers and dissipate, as Mr. Mehl 
says, in the desert. They never reach the Colorado River. And 
for us to have to try to judge under the 2015 rule what is or 
isn't a water of the United States and some sort of language 
saying high watermark, I kind of think of Noah. What was the 
high watermark when Noah was there? Do we have to--does that 
mean all the world is subject to the 2015 rule? I mean, why do 
we have to live under the rule of the EPA and the Corps of 
Engineers? It's very expensive, it's costly, and it's time-
consuming.
    Mr. Norman. Well, I appreciate you expressing your views. 
And it's sad to read in our notes what you had to go through 
and, you know, the money that you had to spend. That's one 
truck that you can't buy. That's one hiree that you can't put 
food on the table with a salary. So I appreciate you telling 
your side of the story and being willing to come up and express 
your concern. Thank you so much.
    Mr. Chilton. Thank you.
    Mr. Norman. I yield back.
    Chairman Biggs. Thank you. And we appreciate the interest 
of some Members--some folks--Members of the whole Committee who 
are here for the Subcommittee because of the interest on this 
important issue, and so I recognize them for their patience and 
will recognize first Mr. Tonko from New York.
    Mr. Tonko. Thank you, Mr. Chair.
    I have letters from more than 250 scientists and the 
Society of Wetland Scientists who strongly oppose a repeal of 
the Clean Water Rule. They note that the rule is supported 
overwhelmingly by scientific evidence and that a repeal of the 
rule, and I quote, ``poses a significant threat to the 
integrity and security of our drinking water, public health, 
fisheries, and wildlife habitat,'' close quote.
    So I ask, Mr. Chair, that these letters be included in the 
record.
    Chairman Biggs. Without objection.
    [The information appears in Appendix II.]
    Mr. Tonko. Thank you.
    Every life and every job in this country depends on clean 
water. We must protect this precious resource and not throw 
away all the progress we have made. Earlier this year members 
of the House Sustainable Energy and Environment Coalition, or 
SEEC, led a comment letter to EPA opposing Administrator 
Pruitt's efforts to rescind the Clean Water Rule.
    Since the 1970s, we have learned so much about our 
waterways. Years of research and peer-reviewed science have 
told us that the Waters of the United States are connected. 
What do we do--we do to one will impact the health and the 
safety of another.
    The Clean Water Rule protects the drinking water of roughly 
1/3 of Americans. One hundred and seventeen million Americans 
rely on drinking water sources fed by intermittent or ephemeral 
streams. Rolling back this rule also jeopardizes waterways that 
Americans use for recreation. The bottom line is Americans need 
an EPA that will use the best possible science to protect our 
health and our national--natural heritage.
    In his testimony Mr. Hopper claims that the Clean Water 
Rule is not supported by scientific evidence. To the contrary, 
EPA issued a comprehensive science report known as the 
Connectivity Report which reviewed and summarized the relevant 
peer-reviewed scientific literature. Mr. Kopocis, how do you 
respond to the claim that the Clean Water Rule is unsupported 
by scientific evidence?
    Mr. Kopocis. Well, quite frankly, sir--thank you for the 
question--I find it to be a little troubling in how to answer 
that because typically when science is disputed, somebody 
brings science to the table and says, ``Well, I disagree with 
your science and here's my science as to why.'' To date, the 
opponents of the rule have not brought forward credible science 
to counter what the Agency put together.
    And as I said in my opening remarks, the Agency did not 
create any of the science associated with the Connectivity 
Report. It was based on about 1,200 previously peer-reviewed 
studies and articles that had been put together by the experts 
in the field. EPA's compilation then was subject to public 
comment. It was sent to the Independent Science Advisory Board 
for its views, a science advisory panel that was made up of 27 
experts in the field. They held public meetings and reviewed 
the document and ultimately came with the final document and 
the conclusions that were contained therein. As I said, since 
that time, nobody has come forward and said, ``I have science 
that debunks yours.''
    Mr. Tonko. And just why is this Connectivity Report so 
important?
    Mr. Kopocis. Well, when Justice Kennedy in his opinion 
opined on the significant nexus test, he said it was the 
relationship of waters upstream to downstream that was 
important, that those downstream waters of course--the upstream 
relationship to downstream waters that are navigable waters, 
jurisdictional waters. And so because the agencies in the past 
had looked at the effects on interstate commerce instead of how 
waters were interconnected with each other, it was important 
for us to develop that science so that we could be informed on 
where the Clean Water Act jurisdiction starts and where it 
ends. And it was important to note that some of the waters that 
are--that the science report suggested could be jurisdictional 
under the Clean Water Act were not included in the final rule.
    Mr. Tonko. And in terms of informing us or policymakers as 
to any future actions to repeal or replace the rule, what role 
does the Connectivity Report play?
    Mr. Kopocis. Well, the Connectivity Report is there. If the 
Agency follows its path and issues a new rule, it is going to 
have to explain why it does not follow the science that the 
Agency itself already prepared and already sent through the 
public process.
    Mr. Tonko. And in your testimony you discussed the 
importance of clean water to the Nation's economy listing a 
number of businesses and industries that need a reliable supply 
of clean water to function. Can you elaborate on the role of 
clean water in supporting the American economy, please?
    Mr. Kopocis. Well, clean water is important and required 
for virtually every aspect of the American economy. There is no 
sector of the economy that can exist without fresh, clean, and 
abundant water. When companies come to look at creating new--a 
new factory or a new endeavor, they look at what is the 
availability of water, whether that's the soft drink industry--
Coca-Cola spends enormous amounts of money trying to figure out 
where fresh water is available. Manufacturers use water; 
farmers use water. It's--virtually every segment of society 
uses water. It has to have it, an adequate and clean supply.
    Mr. Tonko. Thank you very much. Mr. Chair, I yield back.
    Chairman Biggs. Thank you. The Chair recognizes the very 
patient gentleman from California, Mr. Takano.
    Mr. Takano. Thank you, Mr. Chairman. I appreciate the 
opportunity.
    Mr. Kopocis--before I begin, Mr. Chairman, I have a letter 
from 60 different groups around the country including Earth 
Justice, the League of Conservation Voters, the Natural 
Resources Defense Council, Alaska Wilderness League, the Puget 
Sound Keeper Alliance all supporting the clean water 
protections laid out in the Clean Water Rule and opposing 
rollbacks of the rule. I ask that this letter be included in 
the record.
    Chairman Biggs. Without objection.
    [The information appears in Appendix II.]
    Mr. Takano. Thank you, Mr. Chairman.
    Mr. Kopocis, the witnesses today have identified many 
problems they think exist with the Clean Water Rule, and I 
wanted to give you an opportunity to address some of the 
concerns raised in the written testimony directly. If you could 
briefly respond to each of these concerns. A, why is the 
conclusion of all tributaries legal--in the rule legal?
    Mr. Kopocis. The rule actually doesn't include all 
tributaries. For the first time it placed restrictions on the 
definition of what constituted--constitutes a tributary. The 
old rule used to refer to the presence of an ordinary high 
watermark. The new rule says ordinary high watermark, plus 
there has to be a bed and banks, so there would be waterbodies 
that could be thought of and would be thought of as tributaries 
that would be excluded under the new rule. It does not cover 
all tributaries.
    Mr. Takano. Okay. So actually compared to the old rule this 
new rule----
    Mr. Kopocis. Correct.
    Mr. Takano. --actually----
    Mr. Kopocis. It's more narrow----
    Mr. Takano. --is more narrow.
    Mr. Kopocis. --because it's more specific in the physical 
requirements to be considered a tributary.
    Mr. Takano. Well, is the definition of adjacent waters 
overbroad?
    Mr. Kopocis. No. In fact, it's been interesting that many 
of the criticisms of the definition of adjacency have focused 
on the distance limitations, the use of the 100-year 
floodplain, the 4,000 feet, the 1,500 feet, et cetera. In the 
proposal what went out it was floodplains and riparian areas 
without limitation, so the limitations that are in the final 
rule that are being criticized as overly broad are in fact 
limitations on what was in the proposal.
    Mr. Takano. Thank you. Does the rule contain an invalid 
inclusion of isolated waters?
    Mr. Kopocis. No. There is obviously some disagreement as to 
the holding in SWANCC. SWANCC, that case said that it was 
inappropriate for the agencies to rely on the presence of 
migratory birds to assert jurisdiction over an intrastate 
isolated water, and the agencies don't do that. The agencies 
have always looked at isolated waters and have been able to 
find jurisdiction under other theories. And Justice Kennedy in 
particular said that it was in fact sometimes the lack of a 
physical connection that provided the nexus to the downstream 
water.
    Mr. Takano. Thank you very much for that. Did the EPA--did 
EPA fail to provide notice and comment of substantial rule 
changes?
    Mr. Kopocis. No. Every one of the changes that we made from 
proposal to final were part of a test--the legal test of a 
logical outgrowth. In the proposal we asked over 50 specific 
questions for commenters, asking them for their views on a 
variety of issues, including items such as what was the correct 
floodplain, how should we define the riparian area, are there 
limits how--what should the Agency do? So, no, we did not 
believe so.
    Mr. Takano. Thank you. Does the rule exceed----
    Mr. Kopocis. I shouldent say we--the Agency.
    Mr. Takano. Thank you. Thank you for that. Does the rule 
exceed the scope of commerce power--of the commerce power?
    Mr. Kopocis. Well, the Agency--working within the Agency 
and the Department of Justice believes the answer is no. 
Obviously, the ultimate decision on the extent of Congress' 
power under the commerce clause will be made by the Supreme 
Court. It's an issue they've ducked three times.
    Mr. Takano. Okay. Is the rule flagrantly disregarding the 
principles of federalism and usurping the rights of States?
    Mr. Kopocis. No, it does not usurp the rights of the 
States. The States have always been free to do whatever they 
choose to do in addition under the Clean Water Act, and some 
States have done so. They have more stringent requirements are 
they apply State law to waters that are not subject to federal 
jurisdiction.
    The--I find it ironic that--when people talk about usurping 
State powers, the Clean Water Act only restricts the ability of 
people to pollute or destroy waters, so if States' powers are 
being somehow usurped, it would be the power of the State to 
destroy or pollute their own waters.
    Mr. Takano. Well, Mr. Kopocis, you know, I've had the 
privilege of being able to travel to many countries that are 
extraordinarily beautiful, but I find that the management of 
the water, whether it's near the ocean, whether it's near a 
river or creek in a populated area can often be disappointing. 
I will smell the waft of pollution, human pollution, and it 
strikes me that one of the great things about our country is 
the impressive reliability from community to community that we 
can trust the water systems to actually not have to rely on 
bottled water if we don't want to buy the bottled water. But in 
America we have a tremendous trust in water from jurisdiction 
to jurisdiction. That's my experience.
    Thank you so much for your response.
    Mr. Kopocis. Thank you.
    Mr. Takano. I appreciate it.
    Chairman Biggs. Thank you. The Chair recognizes the 
gentleman from Virginia, Mr. Beyer.
    Mr. Beyer. Mr. Chairman, thank you. Thank you all for 
coming. I want to begin by just defending unelected 
bureaucrats, also known as civil servants. You know, it's the 
character of our governments at every level--state, local, 
federal--that determines the quality of our lives, the health 
of our economy, the health of our ranches, and these are our 
police, our military, education, virtually every part, and 
they're all unelected bureaucrats. And they fulfill the duties 
and the obligations that we the Congress gives them or county 
government, state government. So a government without unelected 
bureaucrats is no government at all, and all we have to look at 
the lawless ungoverned nations around the world right now and 
think we don't want to live there. So let's be careful about 
trashing these people. They are there to serve us.
    And by the way, much as we like elected, it's sort of 
difficult to imagine having elected Members of Congress or even 
the county to determine what can happen on every given ditch or 
river or land-use project.
    I want to start off in line with what my friend Barry 
Loudermilk did by asking you a yes or no question down the line 
starting with Mr. Mehl. Do you believe it's important for the 
American public to be able to offer their opinions like you are 
today on the nature of federal oversight for our water?
    Mr. Mehl. Yes, sir.
    Mr. Beyer. Yes. Mr. Chilton, should there be public input 
on this?
    Mr. Chilton. There should be public input, but it's a local 
matter, not a federal matter.
    Mr. Beyer. Mr. Kopocis?
    Mr. Kopocis. Yes, absolutely.
    Mr. Beyer. And, Mr. Hopper?
    Mr. Hopper. Yes.
    Mr. Beyer. And I think that's what Mr. Loudermilk was 
trying to point out, too, when he had the debate about social 
media. That's why I was so dismayed when twice Republican 
leadership tried to sneak into the appropriations bill language 
that would suspend the comment period on the current 
Administration's efforts to repeal the rule. And as you 
suggested, Mr. Kopocis, there's nothing illegitimate about the 
current Administration trying to change the rule as previous 
Administrations have also. But we do believe the public 
deserves to have a say on this, and Republican leadership 
should stop trying to sneak in provisions to eliminate public 
comment. I wanted to raise this issue to make sure that we all 
have a chance to do this.
    I also want to highlight that we're reviewing the Clean 
Water Rule in the Science Committee, and naturally, the average 
American would think that the Science Committee would be 
weighing the scientific merits of the rule, but that's not what 
we have today. We have a witness panel that doesn't have 
scientists. We have administrative, legal, land management 
experience, ranching experience, but the key thing to note is 
that the Clean Water Rule was stayed by the courts, is now 
waiting consideration by the Supreme Court. They just had an 
oral argument. So it makes sense to have legal administrative 
experts, but the rule was never put in place.
    So let's just make the assumption that the arguments 
against the never-enacted Clean Water Rule were justified and 
that what we're hearing today are not just lobbyist talking 
points relayed from industries that want to dirty our drinking 
water.
    Mr. Kopocis, you're the clean water expert here. And Mr. 
Chilton said that the rule is overly burdensome and would 
regulate the small dry washes on his estate, the dirt road they 
want to put across. In his testimony he claims that the Clean 
Water Rule does not respect private property. Is this true? Is 
this your perspective?
    Mr. Kopocis. No, I don't agree with that assertion. 
Obviously, I can't speak to whether that feature he had in his 
photograph was jurisdictional or not. It's very hard to say 
from a photograph. I would say that the ability to construct a 
road crossing on a small waterbody like that is authorized by a 
nationwide permit by the Corps of Engineers. I don't know why 
it would not have qualified for that on Mr. Chilton's ranch.
    Mr. Beyer. Yes. I want to also highlight how drastically 
different the Administrations have been on this--their 
engagement on this issue. We only recently received Secretary 
Pruitt's calendar thanks to a FOIA request by journalists and 
something that was once very transparent in previous 
Administrations. And now we know unequivocally that, unlike his 
predecessor in the Obama Administration, Mr. Pruitt has done 
very little engagement with anyone beyond industry hostile to 
this rule. In fact, he appeared in a National Cattlemen's Beef 
Association video as Secretary lobbying against the Clean Water 
Rule, and now, there's an active investigation into whether 
this action is a violation of his role as Secretary.
    The Administration should be listening to scientists, not 
industry that wants to dump or endanger our drinking water, and 
that's why I led a letter with Ms. Johnson and Ms. Bonamici to 
Chairman Smith asking that Mr. Pruitt testify before this 
Committee. So we deserve answers for this concerning behavior 
of ignoring science and focusing on industry lobbying. The 
mission of the EPA is to protect the human health and the 
environment, not work for industry's whims. And Mr. Pruitt is 
still not confirmed to testify before our committee. We deserve 
better.
    Mr. Chair, I yield back.
    Chairman Biggs. Thank you. And I appreciate all the Members 
and their very interesting questions, but I most especially 
express gratitude to our panel, very excellent testimony.
    And the record will remain open for two weeks for 
additional comments and written questions from the Members. 
This hearing is adjourned.
    [Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]

                               Appendix I

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                   Answers to Post-Hearing Questions




                   Answers to Post-Hearing Questions
Responses by Mr. Ken Kopocis

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                              Appendix II

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                   Additional Material for the Record



                       Statement submitted by EBJ
                       
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Report submitted by Representative Colleen Hanabusa
          
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    *Visit https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf 
to view the entire report.
          Letter submitted by Representative Colleen Hanabusa
          
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             Letter submitted by Representative Mark Takano
             
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             Letter submitted by Representative Paul Tonko
             
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             Letter submitted by Representative Paul Tonko
             
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             Letter submitted by Representative Andy Biggs
             
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          Letter submitted by Representative Suzanne Bonamici
          
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          Report submitted by Representative Suzanne Bonamici
          
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          Letter submitted by Representative Suzanne Bonamici
          
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