[Senate Hearing 115-249]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 115-249

THE APPROPRIATE ROLE OF STATES AND THE FEDERAL GOVERNMENT IN PROTECTING 
                              GROUNDWATER

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             APRIL 18, 2018

                               ----------                              

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





[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]









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



































                                                        S. Hrg. 115-249

THE APPROPRIATE ROLE OF STATES AND THE FEDERAL GOVERNMENT IN PROTECTING 
                              GROUNDWATER

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 18, 2018

                               __________

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



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




        Available via the World Wide Web: http://www.govinfo.gov
        
                                  ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

30-137 PDF                     WASHINGTON : 2018         
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                     ONE HUNDRED FIFTEENTH CONGRESS
                             SECOND SESSION

                    JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware, 
SHELLEY MOORE CAPITO, West Virginia      Ranking Member
JOHN BOOZMAN, Arkansas               BENJAMIN L. CARDIN, Maryland
ROGER WICKER, Mississippi            BERNARD SANDERS, Vermont
DEB FISCHER, Nebraska                SHELDON WHITEHOUSE, Rhode Island
JERRY MORAN, Kansas                  JEFF MERKLEY, Oregon
MIKE ROUNDS, South Dakota            KIRSTEN GILLIBRAND, New York
JONI ERNST, Iowa                     CORY A. BOOKER, New Jersey
DAN SULLIVAN, Alaska                 EDWARD J. MARKEY, Massachusetts
RICHARD SHELBY, Alabama              TAMMY DUCKWORTH, Illinois
                                     CHRIS VAN HOLLEN, Maryland

              Richard M. Russell, Majority Staff Director
               Gabrielle Batkin, Minority Staff Director  
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
                            C O N T E N T S

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                                                                   Page

                             APRIL 18, 2018
                           OPENING STATEMENTS

Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     2

                               WITNESSES

Waters, Amanda, General Counsel, National Association of Clean 
  Water Agencies.................................................     4
    Prepared statement...........................................     7
    Responses to additional questions from:
        Senator Barrasso.........................................    13
        Senator Carper...........................................    17
        Senator Merkley..........................................    20
Mettler, Martha Clark, Assistant Commissioner, Office of Water 
  Quality, Indiana Department of Environmental Management........    48
    Prepared statement...........................................    50
    Responses to additional questions from:
        Senator Carper...........................................    58
        Senator Merkley..........................................    59
Guild, Joe, Treasurer, National Cattlemen's Beef Association.....    61
    Prepared statement...........................................    63
    Responses to additional questions from:
        Senator Barrasso.........................................    70
        Senator Carper...........................................    71
        Senator Merkley..........................................    72
Holleman, Frank III, Senior Attorney, Southern Environmental Law 
  Center.........................................................    74
    Prepared statement...........................................    76
    Response to an additional question from Senator Carper.......    97
Brown, Anthony, CEO and Principal Hydrologist, Aquilogic.........    98
    Prepared statement...........................................   101
    Response to an additional question from Senator Carper.......   132

                          ADDITIONAL MATERIAL

Environmental Protection Agency Request for Comment, Clean Water 
  Act Coverage of ``Discharges of Pollutants'' via a Direct 
  Hydrologic Connection to Surface Water, Federal Register, 
  February 20, 2018..............................................   908
Text of Division G--Department of the Interior, Environment, and 
  Related Agencies Appropriations Act, 2018......................   911

 
THE APPROPRIATE ROLE OF STATES AND THE FEDERAL GOVERNMENT IN PROTECTING 
                              GROUNDWATER

                              ----------                              


                       WEDNESDAY, APRIL 18, 2018

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:08 a.m. in 
room 406, Dirksen Senate Office Building, Hon. John Barrasso 
(Chairman of the Committee) presiding.
    Present: Senators Barrasso, Carper, Inhofe, Capito, 
Boozman, Wicker, Fischer, Rounds, Ernst, Cardin, Gillibrand, 
Booker, Markey, and Van Hollen.

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

    Senator Barrasso. Good morning. I call this hearing to 
order.
    Today we are here to discuss a timely and an important 
issue: what is the best way to protect groundwater, and what is 
the appropriate role of the Federal Government? This issue has 
come to a forefront recently before all three branches of 
Government.
    As we will hear from our witnesses today, a number of 
Federal courts have generated confusing and conflicting 
opinions on the issue. In February EPA recognized this 
confusion and asked for members of the public to file comments 
with the Agency by May 21st of this year.
    Finally, last month Congress weighed in. Congress directed 
EPA to resolve this issue as part of the omnibus spending bill. 
The bill's report specified releases through groundwater should 
not be regulated as point sources under the Clean Water Act. As 
Chairman of the Senate Committee with jurisdiction over the 
Clean Water Act, I want our members to hear from the experts 
and determine what additional actions are needed.
    In 1971 the predecessor of this Committee, the Committee on 
Public Works, rejected attempts to set Federal standards for 
groundwater. Now, 37 years later, States, cities, farmers, 
water utilities, and private citizens have grave concerns that 
Congress's intent has been turned on its head by recent court 
decisions. Those decisions place Washington in charge of 
permitting when groundwater connects a source of pollution to a 
``water of the United States.'' This is a disturbing 
development.
    A broad group of municipalities and water utilities have 
opposed the idea, including the city of San Francisco, the city 
of New York, and the Narragansett Bay Commission in Rhode 
Island. They voiced their opposition in a brief filed in the 
Federal court last year.
    Under the misguided theory, everyday activities, including 
farming, ranching, or having a septic tank in your backyard, 
could require a Federal discharge permit. This isn't what 
Congress intended when it passed the Clean Water Act.
    Eighteen States also recently filed a brief in opposition 
to this expanded and unreasonable interpretation. My home State 
of Wyoming jointed that brief. The States explain the alarming 
consequences of a recent Federal court's ruling in California. 
If the court's ruling stands, many more individuals and 
companies will need to apply for Federal permits.
    In the brief, the State of Arizona pointed out the number 
of activities it would require Federal permits could jump more 
than 200,000 percent. For example, up to 282,867 septic systems 
in that State could become federally regulated. Making matters 
worse, the additional permitting would come with significant 
added costs, but no additional environmental benefit.
    States already have comprehensive groundwater protection 
laws. In addition, the Safe Drinking Water Act and the Resource 
Conservation Recovery Act already protect groundwater at the 
Federal level. The additional permitting would sow great 
confusion and result in tremendous cost. I believe it is a 
harmful expansion of Washington's authority.
    I would now like to turn the time to the Ranking Member, my 
friend, Senator Tom Carper, for his opening statement.

          OPENING STATEMENT OF HON. THOMAS R. CARPER, 
            U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Carper. Thanks so much, Mr. Chairman.
    To our witnesses, welcome. It is great to have somebody on 
this particular subject whose last name is Waters. I don't know 
how you figured that one out, Mr. Chairman. That is good staff 
work.
    Senator Barrasso. And she is a witness for the majority.
    [Laughter.]
    Senator Carper. Well, we look forward to what she has to 
say and our other witnesses.
    Martha Clark, what is your middle name, Martha what?
    Ms. Mettler. Ellen.
    Senator Carper. I am married to a Martha Ann. It is always 
good to have a Martha on board, too.
    Frank, it is nice to see you again. Frank and I were 
actually in elementary school together. I think in the late 
1990s, when I was Governor, he was with the Department of 
Education. It is good to have you here as well.
    Welcome, Mr. Brown and Mr. Guild, too. Thank you for 
coming.
    The purpose of this hearing is to determine the appropriate 
role of States and the Federal Government in protecting 
groundwater, an important subject. But I say, frankly, I didn't 
know the role of States and the Federal Government in this 
regard were in question.
    For over 40 years, as far as I know, it has been perfectly 
clear what Congress intended. In part, that is because the 
language in the Clean Water Act is clear, crystal clear.
    The bottom line is this: if pollution travels from a divine 
point source, like a coal ash pond, to surface water by way of 
a direct hydrological connection, like groundwater, then the 
Clean Water Act regulates that pollution.
    That is not just me speaking. Justice Scalia agreed in his 
opinion in the now famous Rapanos decision. This is what 
Justice Scalia wrote: ``The Act does not forbid the addition of 
any pollutant directly to navigable waters from any point 
source, but rather the addition of any pollutant to navigable 
waters. Thus, from the time of the Clean Water Act's enactment, 
lower courts have held that the discharge into intermittent 
channels of any pollutant that naturally washes downstream 
likely violates Section 1311(a), even if the pollutants 
discharged from a point source do not emit directly into 
covered waters, but pass through conveyances in between.'' 
Again, not my words, but the words of Justice Scalia.
    It seems to me that if the EPA is willing to rely on 
Justice Scalia's majority opinion about what constitutes the 
``waters of the U.S.,'' EPA should surely agree with him on 
this point, too.
    Justice Scalia also correctly noted the nearly unanimous 
agreement among the lower courts. Of course, it is not a real 
legal struggle when the law is so clear. The real role of 
courts in these cases is to parse the facts in each unique 
situation they face to determine whether the hydrological 
connection, a point source with navigable water, is clear 
enough for the Clean Water Act to apply.
    It is not hard for me to understand why some industries, 
such as oil, gas, utilities, mining, and others, might be 
interested in trying to inject some uncertainty into the 
question of whether or not to regulate pollution that flows 
from their leaky ponds and from their lagoons into the waters 
we depend on for drinking, for fisheries, for recreation.
    Citizens whose health and property values have been hurt by 
petroleum products or arsenic or mercury or lead and other 
toxic materials seeping into the waterways have exercised their 
invaluable right to sue under the Clean Water Act, where State 
agencies and EPA have failed to protect them adequately, and 
they are winning. Why? Because the law is clear, and they have 
the right to be heard.
    The only way to silence those in the public who have been 
harmed is if we in Congress choose to weaken the Clean Water 
Act and strip them of this ultimate tool to protect themselves. 
I cannot--and will not--support such an effort.
    Let me also add here that EPA cannot unilaterally change 
the law, no matter how passionately its leaders may wish to do 
so. Any change in the EPA's 40 year old position that 
groundwater pollution can reach and contaminate surface water 
would be arbitrary, and the change would likely be overturned 
by the courts.
    So, Mr. Chairman, I am happy to welcome our witnesses here 
today. We welcome you all warmly. We look forward to hearing 
your testimonies and to the opportunity to discuss with you and 
our colleagues an important issue.
    Having said that, we should be aware that EPA is currently 
taking public comment on an important environmental issue that 
has been regarded as a matter of settled law for decades, and 
that law essentially says this: if you are responsible for 
polluting our rivers, streams, lakes, and oceans by spilling, 
injecting, or leaking contaminants into groundwater, and that 
groundwater is hydrologically connected to surface water, then 
you are liable for that pollution, period. I believe that law 
should not change.
    Thanks, Mr. Chairman.
    Senator Barrasso. Thank you very much, Senator Carper.
    I would like to now welcome and introduce our witnesses.
    We have Amanda Waters here, General Counsel of the National 
Association of Clean Water Agencies; Martha Clark Mettler, 
Assistant Commissioner in the Office of Water Quality at the 
Indiana Department of Environmental Management; Joe Guild, who 
is the Treasurer of the National Cattlemen's Beef Association; 
Frank Holleman, the Senior Attorney at the Southern 
Environmental Law Center; and Anthony Brown, the CEO and 
Principal Hydrologist at Aquilogic.
    Welcome to each and every one of you. I want to remind the 
witnesses that your full testimony--your written testimony--
will be made part of the official record for today. We ask that 
you keep your statements to 5 minutes so that we have more time 
for questions. We look forward to hearing your testimony.
    Ms. Waters, please begin.

     STATEMENT OF AMANDA WATERS, GENERAL COUNSEL, NATIONAL 
              ASSOCIATION OF CLEAN WATER AGENCIES

    Ms. Waters. Chairman Barrasso, Ranking Member Carper, and 
members of the Committee, thank you for the opportunity to 
appear before you this morning.
    NACWA, National Association of Clean Water Agencies, is a 
not for profit association that represents the interests of 
over 300 public clean water agencies nationwide who share a 
common objective to protect the environment and public health, 
and on behalf of NACWA, I thank you for holding this important 
hearing. The question before us this morning is not whether 
releases to groundwater that reach navigable waters should be 
regulated, but how such releases are and should be regulated.
    The Clean Water Act is one of the most successful 
environmental statutes in the Nation's history, and public 
utilities continue to be a paramount contributor to that 
success. These utilities operate the Nation's most essential 
infrastructure systems, providing wastewater treatment for 
approximately 76 percent of the U.S. population.
    The Clean Water Act's prohibition against the discharge of 
any pollutant--unless authorized by an NPDES permit--is limited 
to the addition of pollutants to navigable waters from a point 
source. Groundwater is neither a point source nor a navigable 
water, and the direct hydrologic connection language appears 
nowhere in the Clean Water Act. Even the Ninth Circuit recently 
acknowledged that.
    Congress foresaw that an NPDES permit is not always the 
solution to address pollutants that reach navigable waters. 
When the Clean Water Act was enacted Congress rejected 
proposals to extend the Clean Water Act's reach, with full 
knowledge that pollutants in groundwater may enter navigable 
waters, because the jurisdiction regarding groundwater is so 
complex, and it varies from State to State.
    The Clean Water Act itself contains other tools, including 
total maximum daily loads and non-point source management 
programs, to deal with this type of pollution. In addition, 
there are other Federal environmental laws, as the Chairman 
mentioned, that are better designed and are utilized to address 
this, including the Safe Drinking Water Act.
    Most importantly, by design, groundwater and non-point 
source pollution is primarily the responsibility of the States, 
and all 50 States have adopted laws that prohibit or regulate 
the release of pollutants into groundwater.
    There are many different entities and interests that are 
impacted by the issue the Committee examines today, but it is 
important to note that NACWA members are public entities that 
do not make a profit from their operations, nor do they answer 
to shareholders. They answer only to their local communities 
and ratepayers, many of whom could bear additional and 
unnecessary financial costs if this issue is not correctly 
addressed.
    Thus, public utilities have a compelling interest in 
ensuring the NPDS permitting program and attendant Clean Water 
Act liability remains predictable and lawfully within the Act. 
Regulatory certainty is necessary so that public utilities can 
plan prudently for the expenditure of public funds.
    In addition to the lack of statutory authority, there are 
considerable practical and policy reasons to reject EPA's 
interpretation. The existence of a direct hydrologic connection 
is a fact specific inquiry; it involves topography, hydrology, 
and geology, and will require complex technical assessments. 
Yet there is no clarity on how long and how far pollutants can 
travel for a connection to be considered direct.
    This extension of liability could affect countless systems, 
including public drinking water pipelines and sewer collection 
systems. These leak due to age and to episodic failures. 
Determinations necessary to issue a permit would often be 
infeasible, if not impossible, in the context of a release to 
groundwater, given that a permitting authority must assess, at 
the end of pipe, the potential to exceed water quality 
standards, anti-degradation policy consistency; they have to 
calculate effluent limits and determine appropriate monitoring.
    If a permit cannot be obtained, the Clean Water Act is a 
strict liability statute, which would expose NACWA members to 
hefty civil penalties and attorneys' fees. And this is not an 
abstract fear. Two NACWA members are currently facing Clean 
Water Act citizen suits, and in fact, in the Second Circuit 
today there is oral argument for a New Haven NACWA member.
    Approximately $600 billion is needed over the next 20 years 
to address aging public sewer systems, and to require utilities 
and local communities to shoulder this unnecessary regulatory 
burden would divert limited resources from infrastructure 
priorities that have more significant environmental and public 
health benefits.
    Expanding the universe for NPDES permits could also have 
the unintended consequence of impeding beneficial projects, 
such as groundwater recharge and even green infrastructure, a 
wet weather management tool fully embraced by EPA and Congress.
    There are also serious process deficiencies with EPA's 
approach. The agency has never gone through a rulemaking to 
establish the direct hydrologic theory. EPA has bypassed the 
transparency and due process framework and has failed to 
consider the costs and burdens through a public process.
    Public utilities are on the front lines of environmental 
and public health protection, and we fully support a strong 
regulatory framework to protect water resources, but such 
regulations must be grounded in the statute and consistent with 
congressional intent. EPA's hydrologic connection 
interpretation fails on both accounts and threatens to hamper 
utilities in carrying out their critical public missions. 
Moreover, using the ill suited NPDES permitting program to 
regulate discharges that are better addressed by other Federal 
programs and State law will have a ripple effect of deterring 
projects that are otherwise environmentally beneficial.
    I look forward to answering questions. Thank you very much.
    [The prepared statement of Ms. Waters follows:] 
    
    
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            
    Senator Barrasso. Thank you so much, Ms. Waters.
    Ms. Mettler.

  STATEMENT OF MARTHA CLARK METTLER, ASSISTANT COMMISSIONER, 
 OFFICE OF WATER QUALITY, INDIANA DEPARTMENT OF ENVIRONMENTAL 
                           MANAGEMENT

    Ms. Mettler. Chairman Barrasso, Ranking Member Carper, and 
members of the Committee, my name is Martha Clark Mettler, and 
it is my pleasure to appear before you today to provide the 
Association of Clean Water Administrators' perspectives on the 
appropriate role of States and the Federal Government in 
protecting groundwater. I am here today representing the 
members of ACWA as a long time member and past president.
    ACWA is the national, non-partisan professional 
organization representing the State, interstate, and 
territorial water quality officials responsible for the 
implementation of surface water protection programs throughout 
the Nation. ACWA members are on the front lines of Clean Water 
Act monitoring, permitting, inspection, compliance, and 
enforcement across the country and are dedicated to Congress's 
goal of restoring and maintaining the chemical, physical, and 
biological integrity of our Nation's waters.
    As the primary entities responsible for carrying out the 
Clean Water Act, States are uniquely positioned to provide 
input on the appropriate role of States and the Federal 
Government in regulating discharges of pollutants to 
groundwater, specifically those discharges that may lead to 
surface waters via direct hydrologic connection. Discharges to 
groundwater are often site specific and complex, and defining 
direct hydrologic connection can be challenging.
    Due to this complexity, as well as varying State legal 
frameworks, there is great diversity in State opinion on and 
approaches to the appropriate manner of regulating discharges 
to groundwater. However, States are consistent in their desire 
to retain their current flexibilities to regulate these 
discharges using their discretion to determine which laws and 
regulatory structures apply.
    ACWA members are currently reviewing relevant case law, 
Federal law, and their own State laws to submit comments 
responsive to EPA's recent request. My statement today does not 
supersede or alter the perspective or input of any individual 
State, including Indiana. I encourage the Committee to review 
individual State comments sent to the docket to fully 
understand the diversity among the States.
    States are currently equipped with legal frameworks to 
regulate discharges of pollutants to groundwater, including 
discharges that may lead to surface waters via direct 
hydrologic connection. However, there is significant variety in 
the approaches States employ to regulate these discharges.
    Some States, like New York, Wisconsin, Wyoming, and 
Oklahoma, include groundwater in their definitions of ``Waters 
of the State,'' allowing for regulation of direct discharges of 
pollutants to groundwater through State programs.
    Some States, like Tennessee, Connecticut, South Dakota, 
West Virginia, and Nevada, utilize the Federal Safe Drinking 
Water Act Underground Injection Control program to regulate 
certain discharges of pollutants to groundwater. Some States, 
like Maine and Kentucky, employ the Resource Recovery and 
Conservation Act to address groundwater pollution. And some 
States, like Colorado and Alaska, use Federal NPDES permitting 
authority to regulate discharges of pollutants to groundwater. 
Additionally, many States, including those listed, use 
variations and combinations of these regulatory controls.
    It is critical that States retain maximum flexibility to 
regulate discharges to groundwater in ways that work for the 
States. Therefore, States prefer that EPA neither demand nor 
deny the use of NPDES for groundwater that may lead to surface 
water. Therefore, ACWA supports the empowerment of States to 
manage discharges to groundwater.
    We recognize there are multiple Federal courts currently 
addressing Clean Water Act citizen suits on this issue. It is 
unclear how these courts will rule on each case; however, there 
is a chance that the Circuit Court decisions will be 
inconsistent, causing national uncertainty. This would be 
problematic for States implementing the Clean Water Act. 
Therefore, States encourage EPA to clarify its previous 
statements on discharges to groundwater and explicitly empower 
States to continue to make decisions using their own 
discretion.
    EPA's request for comment is an excellent opportunity for 
the Agency to work with States in the spirit of cooperative 
federalism. Therefore, Congress should allow the process to 
progress before taking legislative action on this issue. But at 
a minimum, this Committee should encourage EPA to explicitly 
empower the States. Further, we urge the Committee to direct 
the Agency to coordinate with State programs and continue to 
monitor EPA's efforts, especially as the Agency reviews public 
comments and determines what future actions to take.
    Mr. Chairman, Ranking Member Carper, and members of the 
Committee, I thank you for this opportunity to share ACWA's 
perspectives. ACWA remains ready to answer any questions or 
concerns EPA or Congress may have, and would be pleased to 
facilitate further dialogue with our State members.
    I am happy to answer any questions.
    [The prepared statement of Ms. Mettler follows:] 
    
    
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    
 
    Senator Barrasso. Thank you very much, Ms. Mettler.
    Mr. Guild.

              STATEMENT OF JOE GUILD, TREASURER, 
             NATIONAL CATTLEMEN'S BEEF ASSOCIATION

    Mr. Guild. Good morning, Chairman Barrasso, Ranking Member 
Carper, and members of the Committee. My name is Joe Guild. I 
am a rancher for Washoe County, Nevada, where I live with my 
wife, Catherine. I operate a cow-calf ranch and alfalfa ranch 
on private and public lands in Nevada and California. I am a 
member of the Public Lands Council and the current treasurer 
for the National Cattlemen's Beef Association. Thank you for 
allowing me to visit with you today.
    One of the most complex environmental issues facing our 
country in recent history has been the EPA's attempted 
definition of Waters of the United States. NCBA works hard to 
ensure that the definition of WOTUS is not expanded to include 
water Congress never intended to regulate. However, if EPA 
finds authority to regulate discharges via groundwater, any 
progress made on this front will be lost. The regulation of 
groundwater has the potential to negatively impact even more 
cattle operations than the damaging 2015 WOTUS rule.
    The Carson River runs through a portion of the range on the 
smaller ranch that I manage. The water is used to irrigate hay 
fields and valley pastures. There is a tributary that runs 
right through one of the valleys on the range of that ranch. To 
prevent degradation of the stream bed, we move the cattle away 
from the stream a few times a week. I don't have an NPDES 
permit for this operation because, quite frankly, I don't think 
I need one; my cattle are not point sources, and thus do not 
meet the Clean Water Act's discharge standard.
    Through the USDA's Natural Resource Conservation Service, I 
have implemented voluntary conservation practices on my 
operations, including the strategic placement of wells and 
underground pipelines to move water more efficiently and 
effectively throughout that operation. Such voluntary practices 
increase efficiency and maintain natural resource quality, both 
on my operation and downstream from me. However, the expansion 
of the Clean Water Act to regulate discharges into groundwater 
would change all of this. Not only would such an expansion 
directly contradict the intent of the law, but take authority 
away from States who are best positioned to manage groundwater 
quality.
    The conduit theory that groundwater may be regulated as a 
point source defeats the Clean Water Act's bifurcated approach 
by blurring the line between point sources and non-point 
sources. Bringing non-point sources into the realm of Clean 
Water Act regulation will exponentially expand EPA's permitting 
and enforcement authority, while providing little environmental 
benefit at great cost to the Government.
    Ranchers work hard to maintain the soil and water quality 
on our operations through the implementation of voluntary NRCS 
programs. Due to the unpredictable diffuse flow of groundwater, 
which varies depending on the hydrological and geological 
features in each region of each State, it is difficult to 
calculate what amount of nutrients could be coming from my 
ranching operation flowing through the groundwater to a distant 
or even an adjacent surface water.
    By regulating groundwater, the EPA accomplishes nothing 
other than a significant expansion of Clean Water Act authority 
to manage operations, which, frankly, do not need to be 
federally managed. Presently, discharges to groundwater are 
managed at the State level, and that should remain in place.
    Additionally, groundwater regulation via the Clean Water 
Act prevents significant risk to any diversified producer. I 
assist in managing a large range livestock ranch of sheep and 
cattle in eastern Nevada. On that ranch we also produce a large 
quantity of alfalfa for our own use and for sale to dairies. If 
the direct hydrological theory becomes the law throughout our 
country, I will be required to get an NPDES permit for the 
diversified ranch because our irrigation water may discharge to 
a surface water through groundwater percolation.
    If Congress allows the expanded interpretation of the Clean 
Water Act to include groundwater, all sectors of the cattle 
industry will face additional Federal regulation and scrutiny, 
with minimal environmental benefit. Farmers and ranchers will 
become further disenfranchised, leading to a halt in innovation 
and voluntary conservation programs that are successfully 
protecting water quality as we speak. Ultimately, increased 
regulation will lead to small ranchers perhaps selling their 
cattle and further consolidation of our industry.
    Thank you for your time, Senators, and I look forward very 
much to your questions.
    [The prepared statement of Mr. Guild follows:]
    
    
   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    
    Senator Barrasso. Thank you very much, Mr. Guild, for your 
testimony.
    Mr. Holleman.

  STATEMENT OF FRANK HOLLEMAN III, SENIOR ATTORNEY, SOUTHERN 
                    ENVIRONMENTAL LAW CENTER

    Mr. Holleman. Thank you. Mr. Chairman and Senator Carper, 
members of the Committee, thank you for the opportunity to 
speak with you today about the future of clean water.
    I live in Greenville, South Carolina, and for the last 7 
years I have worked with citizens in the southeast to protect 
their families and their property values and their clean water 
from coal ash pollution.
    The current notice by the EPA is the beginning of an effort 
to take rights away from those citizens and allow large 
polluters to continue polluting lakes, rivers, and drinking 
water supplies.
    If the proposed interpretation were adopted and the law was 
changed, it would blow a hole in the Clean Water Act, because 
any polluter could move their discharge 10 feet, 100 feet back 
from the water's edge and avoid the protections of the Nation's 
waters. Let me give you an example.
    Throughout the south, utilities have stored millions of 
tons of coal ash in huge unlined pits, often sitting deep in 
groundwater directly on the banks of lakes and rivers. These 
pits leak toxic pollution through their bottoms and sides, and 
that pollution is carried by groundwater directly to drinking 
water wells and public waterways. Public drinking water sources 
have been damaged, property values have dropped, and pollution 
has flowed into recreational lakes.
    Our State agencies have been ineffective in stopping this 
pollution. The most notorious examples are the 2008 collapse of 
TVA's Kingston coal ash dam and the catastrophic failure of 
Duke Energy's Dan River coal ash lagoons. By 2011 communities 
across the southeast had given up on waiting for their State 
agencies to take meaningful action and began enforcing the 
Clean Water Act themselves against pollution leaking from these 
unlined pits, and the coal ash utilities have been losing.
    In Tennessee, a court ordered TVA to remove all its ash 
from pits sitting on top of coal field karst that flowed 
pollution directly into the Cumberland River. Duke Energy is 
now required to excavate all the ash from 10 of its 16 sites in 
the Carolinas, and in my home State every waterfront coal ash 
pit is being excavated.
    Southeastern utilities are now committed to excavating over 
90 million tons of ash from unlined polluting pits, and 
citizens made that happen, not State agencies. Just in March, 
under the 2015 coal ash rule, utilities were forced to reveal 
that they are polluting groundwater across America, with toxic 
and even radioactive pollution.
    So, why are we here? Because large polluters see that if 
citizens exercise their rights, the polluters will no longer be 
able to get away with polluting community water supplies; it is 
that simple.
    Since the adoption of the Clean Water Act, the EPA has 
consistently confirmed what the plain language clearly 
provides. The Act forbids unpermitted pollution that flows and 
leaks from a point source, for example, an industrial pit or a 
pipe, to a lake or river through groundwater with a direct 
hydrological connection. This is a point that the 
administrations of Ronald Reagan and Barack Obama agreed upon, 
and this is a key type of illegal water pollution that citizens 
have been fighting through Clean Water Act enforcement.
    The polluters well know that if this pollution is left to 
the State agencies alone, the polluters will get off the hook. 
If the State agencies take on the utilities, they anger the 
most powerful forces in the State legislatures, on which the 
agencies are dependent for their jobs and budgets.
    The agencies lack the resources to fight the utilities' 
well paid lawyers and lobbyists, and in some instances the 
State agencies are very close to the utilities against whom 
they are supposed to enforce the law. Just as one example, only 
1 month after Duke Energy companies were placed on nationwide 
criminal probation for coal ash crimes, the North Carolina 
State agency director and the Governor hosted Duke Energy 
officials at the Governor's mansion for a private, secret 
dinner at which they discussed environmental issues.
    The EPA notice is not about regulatory uncertainty; it is 
about allowing large polluters to pollute without meaningful 
enforcement. On behalf of the communities I have worked for 
throughout the southeastern United States, we ask you all to 
stand up for the rights of citizens, for property and water 
rights, and for clean water by rejecting any attempt to change 
the longstanding position of the EPA and the clear, 
longstanding language of the Clean Water Act itself.
    Thank you, Senators.
    [The prepared statement of Mr. Holleman follows:]  
    
    
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    Senator Barrasso. Thank you, Mr. Holleman. Appreciate your 
testimony.
    Mr. Brown.

                  STATEMENT OF ANTHONY BROWN, 
            CEO AND PRINCIPAL HYDROLOGIST, AQUILOGIC

    Mr. Brown. Chairperson Barrasso, Ranking Member Carper, and 
members of the Committee, good morning. My name is Anthony 
Brown, and I am a hydrologist with Aquilogic, an environmental 
and water resources consulting firm. I would like to thank you 
for the opportunity to testify on the appropriate role of 
States and the Federal Government in protecting groundwater.
    As stated, I am a hydrologist, and as such, my professional 
focus is on the science and the engineering of water. I am 
currently working on projects in 10 States, and over the course 
of my more than 30 years of professional experience, I have 
worked on projects in an additional 12 States.
    Unlike other witnesses you will hear from today, I am not a 
lawyer, lobbyist, regulator, or politician. My testimony will 
focus on the science and engineering of water, and will address 
the following key issues: the natural connection between 
groundwater and surface waters, the contamination of 
groundwater by releases of pollutants, the migration of this 
contamination with the movement of groundwater from the 
contaminant source to its discharge in proximate surface 
waters. Additional written information related to these issues 
and other pertinent topics has been provided to the Committee.
    First, let me talk about the hydrologic connection between 
groundwater and surface waters. As can be seen in the poster 
board I have provided, and in Figure 1 provided to the 
Committee, groundwater and surface waters are part of the 
hydrologic cycle, or water cycle.
    As part of this cycle, precipitation infiltrates into the 
soil and percolates down to recharge the groundwater in 
aquifers. The groundwater flows laterally and vertically in an 
aquifer until it reaches a point of discharge, which can be to 
a manmade well or surface waters. This is the natural course of 
water on and beneath the land surface.
    Surface waters such as streams, lakes, and wetlands are 
easier for a layperson to understand, as they can be seen and 
are more easily monitored and tested, whereas groundwater lies 
beneath the ground and is more difficult to visualize, monitor, 
or test.
    What a layperson is likely not aware of is that groundwater 
aquifers contain 100 times more fresh water than all the lakes, 
rivers, swamps, and marshes on Earth. These aquifers may extend 
thousands of feet below the ground and can be localized or 
extend over thousands of square miles, such as the High Plains 
or Ogallala Aquifer and the California Central Valley Aquifer 
system.
    As we know and can see, most surface waters flow downhill. 
In general, groundwater also flows downhill, away from areas of 
recharge, where precipitation infiltrates, to areas of 
discharge, such as surface waters. The direction and velocity 
of groundwater flow is controlled by numerous hydrogeologic 
factors that need to be considered on a site specific basis.
    However, given the resistance posed by the aquifer 
materials, groundwater flow is much slower than the flow in 
streams or rivers. Streams many flow many miles in a day, 
whereas groundwater in an aquifer usually only flows at 
hundreds of feet per year.
    Now I will discuss the contamination of groundwater, 
subsequent migration of groundwater contamination, and its 
discharge to surface waters. For contamination, as in 
toxicology, dose makes the poison. Small releases of highly 
toxic chemicals, such as perfluorinated chemicals, can create 
more water pollution than even large releases of less toxic 
chemicals, such as diesel fuels. The toxicity of a pollutant 
when regulated is reflected in the Federal maximum contaminant 
level, or surface water quality standard.
    The USEPA has adopted MCLs for 87 pollutants and surface 
water quality criteria for about another 120 pollutants, and 
109 pollutants are on the contaminant candidate list. However, 
according to the USEPA's Toxic Substances Control Act 
Inventory, there are over 85,000 chemicals in commercial use 
within the United States as of April 2018. Therefore, more than 
99 percent of all the chemicals have not been regulated.
    Many regulatory programs define violations and clean up 
relative to these MCLs or similar standards; therefore, most 
pollutants are inadequately addressed, whereas some regulatory 
actions, such as the Clean Water Act, define violations and 
clean up above a background concentration for any pollutant. 
Thus, they address any pollutant above its natural 
concentration, rather than just those with regulatory 
standards.
    Once pollutants mix with the flowing groundwater, they will 
move with that groundwater. As noted, groundwater flow is quite 
slow compared to surface water; therefore, contaminant 
migration will also be relatively slow. Over years or even 
decades, many inorganic pollutants and some organic pollutants 
may form contaminant plumes that are many miles long. However, 
most pollutants are unlikely to migrate great distances in 
groundwater due to the natural processes in the subsurface, 
which retard their transport, notably dilution and dispersion. 
This is referred to as natural attenuation.
    In general, groundwater proximate to surface waters will 
discharge those waters. Also, any pollutant dissolved into 
groundwater will migrate with the groundwater. For many 
pollutants, the distance migrated by the contaminant pollutant 
will be limited by natural attenuation. Therefore, in general, 
only releases of pollutants into groundwater proximate to 
surface water migrate all the way to and discharge to that 
surface water. Given the complexity of hydrogeologic 
contaminant conditions, the migration of pollutants in 
groundwater and their discharge to proximate surface waters has 
to be evaluated on a site specific basis.
    I have also brought with me a chart today just showing some 
recent articles that demonstrate where contaminated groundwater 
has discharged to surface water.
    Now I will talk briefly about groundwater contamination. 
Cleanup of contaminated groundwater is often directed using 
various Federal and State statutory authorities, such as CERCLA 
or RCRA, or the Leaking Underground Storage Tank Fund. These 
cleanups usually require cleanup to a defined goal, such as an 
MCL or a risk based. They target groundwater contamination 
itself, rather than discharge of that contamination to surface 
water. However, for a variety of reasons, there are still tens 
of thousands of groundwater contaminant pollutants across the 
country that have yet to be fully remediated under these 
mechanisms.
    In conclusion, in most situations, groundwater will 
discharge to proximate surface waters. If pollutants are 
released and impact groundwater proximate to the surface 
waters, then the pollutants will transport via groundwater, 
where they will subsequently discharge to the surface waters. 
Court rulings have round that these types of discharges are a 
violation of the Clean Water Act when they fall within the 
Act's terms and must be remedied.
    Thank you for the opportunity to testify, and I am happy to 
answer your questions.
    [The prepared statement of Mr. Brown follows:] 
    
    
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    Senator Barrasso. Well, thank you very much, Mr. Brown.
    Thank you to all of you who have testified today.
    We will now start with some questions, and I would like to 
start with you, Mr. Guild.
    Western farmers and cattle ranchers like you face many 
unique water related challenges. Could you describe how a 
massive expansion of Federal control over groundwater would 
affect how you and other western farmers and ranchers--
certainly ones in Wyoming--how you carry out routine activities 
like irrigation?
    Mr. Guild. Thank you for the question, Senator Barrasso.
    Joe Guild, for the record.
    Currently, under the Clean Water Act, there are 
agricultural exemptions, so grazing my cattle on grass, feeding 
my cattle crops that I have grown are exempted as normal 
agricultural practices. We irrigate portions of the ranch with 
groundwater that we raise out of the ground and spread on the 
crops.
    As I see this expansion, that water eventually percolates 
into the soil, and in some cases, is nearly adjacent or 
certainly in the hydrologic basin of waters of the United 
States and could, through that percolation, reach the surface 
waters, and therefore be jurisdictional under the Clean Water 
Act.
    So, if I have to get a permit for all of these operations, 
to answer your question, it would change the way I do things. 
It might change what I did when I went and got an EQIP grant 
from NRCS and spent some of my own money to put my own 
irrigation system in a more efficient way.
    Hope that answers your question.
    Senator Barrasso. Thank you; it certainly does.
    Ms. Mettler, this new hydrologic connection theory appears 
to create really duplicative regulations, not only with our 
Federal laws, but also with State laws that already protect 
groundwater, which is what you are doing in Indiana.
    As a State regulator, do you feel that States are doing a 
good job protecting their groundwater resources?
    Ms. Mettler. Yes. Yes, I do. A lot of the members of ACWA 
who are responsible for implementing the Clean Water Act are 
also responsible in their States for implementing the Safe 
Drinking Water Act, so it is in our best interest to protect 
groundwater.
    Senator Barrasso. Do you feel it is helpful, then, for the 
Federal Government to suddenly step in with what could be 
duplicative and time consuming and expensive regulations?
    Ms. Mettler. No, duplicative is never helpful. For anyone 
that has ever done a do it yourself home improvement project, 
which my husband and I have done a few times, we have learned 
by experience that having the right tool is the key, and having 
the selection and the opportunity to pick the right tool is key 
for success.
    Senator Barrasso. Ms. Waters, your written testimony 
discussed the implementation of water recharge and green 
infrastructure projects. Could you explain a little bit about 
how an expanded interpretation of the Clean Water Act could 
impact the viability of these types of projects?
    Ms. Waters. Thank you, yes. So, the types of projects I am 
referring to are groundwater recharge. There is also injection 
of treated wastewater for seawater intrusion barriers and land 
subsidence issues, so this happens a lot in Florida and 
California.
    Those operations currently are permitted under the Safe 
Drinking Water Act underground injection control provisions, so 
they already have to meet certain requirements. If you have an 
NPDES overlay, then the entire cost-benefit of doing those 
projects could be brought into question. It is not like you 
just flip a switch and you can suddenly comply with a new 
permitting scheme. If there are more stringent parameters in 
the NPDES, then you may not have the infrastructure in place 
and the processes to comply with that.
    So, what it will do is, if you are doing it based on a 
cost-benefit analysis, and the costs then exceed the benefits, 
then you won't have people performing these types of beneficial 
projects.
    Senator Barrasso. Mr. Guild, she just talked about cost-
benefit analysis. In your testimony you discussed the practical 
implications of requiring Federal discharge permits for routine 
farming and ranching activities. How significant of a burden 
would this additional permitting be for you and for the 
ranchers you represent for the National Cattlemen's Beef 
Association?
    Mr. Guild. Well, taken by itself, Senator Barrasso, I can't 
argue that it would be a great burden; I mean, permitting is 
what we do. But as you add permitting processes and 
requirements to particularly an agricultural operation, I think 
it would impact greatly, negatively impact all across the West, 
thousands of ranchers. And here is the point. Our margins are 
so tight in agriculture that any additional burden really cuts 
right into that bottom line. I mean, the ranches I operate, if 
we get a 1.5 percent profit margin, we have had a great year.
    Senator Barrasso. I appreciate it.
    Ms. Mettler, the same question. From your perspective, how 
burdensome would the additional federally mandated permitting 
be on States' resources?
    Ms. Mettler. Well, I think each State will have to 
evaluate, but there definitely will be an additional burden, 
particularly if we try to do effective cross-program 
coordination to try to reduce redundancy in our regulatory 
structures.
    Senator Barrasso. Thank you.
    They are huddling.
    Senator Carper. Let me just say I am a recovering Governor 
and recovering State treasurer. I go home to Delaware almost 
every night. I will go to Salisbury, Maryland, tonight. I will 
go to every county in Delaware tonight, just in one night. 
Every one, south to north. I try to stay really in touch with 
my State.
    One out of every six families in Delaware gets their 
drinking water from a private well--one out of six. In northern 
Delaware, a lot of us get our drinking water from surface 
water. There is a river called Brandywine, which flows from 
Pennsylvania down into Delaware, and that is where the water 
comes from for the city of Wilmington. We have water that comes 
out of Pennsylvania--the Christina River--that is a source of 
drinking water for folks as well in my State.
    Currently, if an entity--I don't care if it is a utility or 
company, business, whatever--that puts pollution into the 
Brandywine River or the Christina River in Pennsylvania, and it 
comes down, and we end up having to clean it up because it is 
bad for us to drink, we have a remedy for that. We have a 
remedy for that.
    However, under what I think is before us, and I want to ask 
Frank and Anthony to tell us, but what I understand is before 
us, if that polluter in Pennsylvania decides not to put the 
pollution in the Brandywine or in the Christina, but to put it, 
like, 100 feet away, and the pollution travels underground and 
ends up in the Brandywine or the Christina River, then we are, 
pardon my French, screwed. Am I reading this right or wrong?
    Mr. Holleman.
    Mr. Holleman. You are absolutely right. I mean, that is 
what they are proposing. They are proposing that if it travels 
any distance with groundwater, the Clean Water Act doesn't 
cover it. And the discharge point has to be literally in the 
river or right on top of it, right above it.
    In that famous Rapanos decision, this is one thing every 
justice agreed on, including Justice Scalia, that that is not 
the law. Instead, the Clean Water Act protects any pollution 
that comes from a point source. And if this interpretation were 
adopted, we roll the clock back on these protections that we 
have enjoyed, and hopefully will enjoy more in the future from 
the Clean Water Act.
    Senator Carper. Let me say to my colleagues, these two 
fellows love their States. They are great States, and they are 
wonderful servants for their States. Not every State has people 
who are going to be running their Department of Natural 
Resources and Environmental Control, Environmental Protection 
who has the kind of commitment that I think those on this panel 
have to clean air, clean water, and the enforcements.
    There is a great temptation when a polluter is in violation 
of State laws, and it could be a utility, it could be a large 
company that has a lot of employees, when they are confronted 
by State legislators, and say you have to stop what you are 
doing, and the polluter could say, I could be doing this 
business in some other State. I could be running my business in 
some other State and push back. And I don't care if it is a 
utility, I don't care if it is a major employer, you have 
regulatory agencies that basically use kid gloves on these 
folks.
    Am I reading this wrong? The question is don't we have 
State laws that protect us? We do have State laws, but a lot of 
them, frankly, are not very well enforced by the regulatory 
agencies.
    Am I wrong, Mr. Brown?
    Mr. Brown. Yes, as I mentioned during my testimony, there 
are thousands of contaminant pollutants in groundwater 
currently in the United States that have yet to be fully 
addressed. That is a function of a variety of factors, notably, 
in some cases, the polluter makes no attempt to address these 
and tries to obstruct it. But also we have a registry structure 
in some States that is overburdened.
    There are numerous projects that regulators have to 
address, and they have to direct their resources, so therefore, 
some pollutants do not get appropriately addressed. And the 
regulatory tools they have, such as CERCLA, are very arduous 
and burdensome processes that take a very long time to actually 
institute any kind of restoration or remediation. It may take 
many years, if not decades, to actually achieve restoration 
under such programs.
    Senator Carper. One more, if I could, for Mr. Holleman, and 
I will ask you to be brief in your response.
    Didn't the Fourth Circuit hold that the groundwater itself 
is the point source, or was the point source the ruptured 
pipeline that spilled several hundred thousand gallons of 
gasoline? Would you elaborate on the distinction there, please?
    Mr. Holleman. Yes. As you know, the Fourth Circuit is a 
Court of Appeals, it covers the southeast, including where I 
live, and the Fourth Circuit clearly held groundwater is not a 
point source; it is not a water of the United States.
    The point source was the pipe that broke 1,000 feet uphill 
from a stream and dumped 369,000 gallons of gasoline, which 
flowed and is still flowing into that creek. That is what the 
Fourth Circuit held. The pipe was the point source, but it was 
discharging into that tributary of the Savannah River.
    Senator Carper. Just for clarification, would you agree, 
then, that Mr. Guild's fears about the ``lost progress'' from 
the recent court decisions concerning the waters of the U.S. 
are misplaced?
    Mr. Holleman. Yes. I am sympathetic to my friend here 
because my wife and I also own a farm with cows on it, cattle 
on it, and we have also done NRCS program.
    Senator Carper. I like the cows. I like when you say cows.
    Mr. Holleman. Cattle. Well, there are cattle, these aren't 
cows; nobody milks them.
    So, I am sympathetic to his work, but I do not think the 
fears expressed are real. In fact, on my farm or his, what he 
just described, we don't have anything to fear.
    Senator Carper. All right.
    I would just say, Mr. Chairman, and to Senator Inhofe, a 
couple days ago I had the privilege of being on a farm in 
southern Delaware, and we were there, and the NRCS was there as 
well, and they weren't raising cattle on the farm; I think they 
were raising some grain crops and chickens. But they are doing 
great work without the NRCS, the funding that you mentioned, 
with the buffers and all kinds of stuff.
    So, I applaud you, Mr. Guild, for taking advantage of those 
wonderful programs.
    Mr. Chairman, I ask unanimous consent to submit for the 
record several documents that support the proposition that 
pollution from a discrete point source traveling through 
groundwater that is hydrologically connected to regulated water 
or surface water is covered by the Clean Water Act.
    Senator Barrasso. Without objection.
    [The referenced information follows:] 
    
    
    
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    Senator Barrasso. I submit also for the record a number of 
briefs from New York City et al., across the country, there is 
strong bipartisan opposition to a Federal takeover of 
groundwater regulation. I want to submit for the record a court 
brief filed by more than 20 cities, public wastewater 
utilities, and associations that represent them. The 
signatories to the brief include New York City, San Francisco, 
the Maryland Association of Municipal Wastewater Agencies, and 
the Narragansett Bay Commission in Rhode Island. These entities 
explain that an expansion of Federal authority ``is not only 
contrary to law, but unmanageable.''
    Without objection.
    Senator Carper. I object. No, I am not objecting. We have 
fun up here sometimes. I have no objection.
    [The referenced information follows:] 
    
    
    
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    Senator Carper. Mr. Chairman, I am going to apologize. One 
of my other committees is meeting right now. We don't have any 
Governors on the Postal Board of Governors, not one, and we 
haven't had any. It is like the second largest company in the 
world not having a board of directors. We are having a hearing 
on three nominees. I need to run over to that, but I will be 
back, so don't go anywhere.
    I leave you in good hands.
    Senator Barrasso. Senator Inhofe.
    Senator Inhofe. Well, thank you, Mr. Chairman.
    Before you leave, let me thank you for taking 7 minutes, 
because I may need 7 minutes to get through the three 
questions.
    Senator Carper. I will not object.
    Senator Inhofe. I do have three questions I want to make 
sure we get on the record, so I am going to talk fast, all 
right? The first one, I chaired this Committee, I spent a lot 
of time about the overregulation. Right now we are in much 
better shape in this country with the regulations that we are 
dropping down that have caused us to really be suffering here.
    Our economic activity is increasing now, and things are 
good. But of all the regulations, when I talk to my farmers in 
Oklahoma, the WOTUS one was the big one, and I think the 
American Farm Bureau officially listed that as their most 
concerning one.
    Out in the western part of my State, it is pretty arid out 
there in the panhandle. They used to call it no man's land out 
there, and there is a reason for that. But anyway, when you get 
out there, it is very arid, but I think the farmers out there 
tell me that if we change this, before the WOTUS rule went 
through, so that the Federal Government has the jurisdiction 
instead of the State government, that would probably be 
considered a wetland.
    So, we have been talking about the WOTUS rule, and that is 
how significant it is. But then when I look at what is 
happening now, I would have to say how would this Federal 
groundwater expansion impact the progress being made to repeal 
and replace the 2015 WOTUS rule?
    Mr. Guild, would you answer that, please, briefly?
    Mr. Guild. Thank you, Senator Inhofe. It would change it 
dramatically because currently a point source is defined in the 
law as any discernible, confined, and discrete conveyance. The 
groundwater is not discernible, not confined, and not discrete.
    I mentioned percolation earlier in an answer to Senator 
Barrasso's question. This percolation of water, irrigation 
water, if you will, into the groundwater, and subsequently 
potentially getting into surface water, is defined in cases as 
a non-point source. In fact, the EPA Office of Water Guidance 
Number 3-1987 said that percolation is a non-point source. So, 
once we change that, Senator Inhofe, I think it is a dramatic 
difference in our agricultural world.
    Senator Inhofe. OK, that is very good.
    Ms. Mettler, in your written statement--actually, your 
opening statement--you singled out Oklahoma with some other 
States that includes groundwater in its definition of water of 
the State. Because of this, we regulate direct releases of 
pollutants to groundwater. It is also my understanding that all 
50 States have laws of regulation regarding the release of 
pollutants into groundwater.
    I want to make sure I get your answer on the record. 
Wouldn't the Federal regulation be duplicative? And it seems 
the costs would be higher while there would be little 
environmental benefit. Do you agree with that?
    Ms. Mettler. Yes.
    Senator Inhofe. Do you agree with that, Ms. Waters?
    Ms. Waters. Yes.
    Senator Inhofe. All right.
    The last question, then, I want to get to is we just had a 
subcommittee hearing in this Committee on cooperative 
federalism under the Clean Water Act and how it is the basis of 
our environmental laws. This includes the Clean Water Act. 
Congress defined the waters that fall under the Federal 
jurisdiction and left the rest to the States. OK?
    In reaching out to our Oklahoma stakeholders, we heard that 
if these cases are to stand, it would eliminate any concept of 
cooperative federalism. So, I would say to Ms. Mettler, can you 
explain why it is best that States are in the best position to 
manage groundwater than the Federal Government?
    Ms. Mettler. Well, the Clean Water Act was set up so that 
we can evaluate our own particular State hydrology and certain 
elements of how the water flows so that we can set our own 
standards and do our own regulations, as appropriate for the 
State. So, taking that away from us will just be a burden to 
evaluate and possibly detract from the actual implementation of 
protections that we want to focus on.
    Senator Inhofe. Do you have anything to add to that, Ms. 
Waters?
    Ms. Waters. Well, I would. We have talked a lot about 
States that aren't enforcing their regulations for a variety of 
reasons, and I think what is important is the cooperative 
federalism framework of the Clean Water Act, that it was set up 
so that States would have control over this because of the site 
specific and varied conditions at the State level.
    So, I think if there are problems with the enforcement of 
existing regs, then you have to look at those regs; you don't 
go back and change the Clean Water Act. And if you do, there is 
an entire process that goes along with that.
    Senator Inhofe. It is very consistent, and I don't say this 
in any detrimental sense about anyone, but there are different 
philosophies that you see in Government here, Democrats and 
Republicans.
    As a general rule, Democrats think things are done better 
when they are regulated from the Federal Government, and we 
live with this every day. I am of the opposite view. I always 
feel the closer we are to the people, the better job we can do 
of regulating. I think that applies here, too.
    Thank you, Mr. Chairman.
    Senator Barrasso. Thank you, Senator Inhofe.
    Senator Van Hollen.
    Senator Van Hollen. Thank you, Mr. Chairman.
    Thank all of you for your testimony.
    Mr. Holleman, I was reading your testimony. On page 5 you 
mention the case in Virginia regarding Dominion Energy's 
Chesapeake Energy Center polluting the groundwater which flows 
into the Elizabeth River, which is on the southern end of the 
Chesapeake Bay. My State of Maryland is one of the Bay States, 
so we take a keen interest in this.
    As you state, the U.S. District Court found that, indeed, 
they were violating the Clean Water Act, Dominion Energy, 
right?
    Mr. Holleman. Yes, Senator, that is correct. I would just 
like to underscore what we are emphasizing is not the rights of 
government, State or Federal, but the rights of citizens. And 
it was the citizens of that area, the Chesapeake area, who 
brought that case, enforced the law when the State was not, and 
made that happen. So, the important thing here is let's not 
take rights away from the citizens and lock them up in the 
government; let's protect the citizens' rights that the Clean 
Water Act is truly based on.
    Senator Van Hollen. And you have listed a whole line of 
legal cases that indicate that this is not some new 
interpretation; this has been going on for a long time, right?
    Mr. Holleman. Yes. It is entirely wrong to call this an 
expansion of the Clean Water Act or a new regulation. That 
certainly is not correct. EPA has been issuing permits for 
years in this arena. EPA has confirmed the meaning of the law 
since its enactment, and since 1977 courts across the country, 
from Alabama to Puerto Rico, have been applying the Clean Water 
Act in this way, according to its plain language.
    Senator Van Hollen. So, Mr. Guild, you bring up a very sort 
of sympathetic example. You are talking about a large ranch 
with cattle on it. I want to ask you and maybe some of the 
others, with respect to a clear case, where you have a company, 
whether it is Dominion Energy or a coal plant, that has a pipe 
that is discharging directly into the groundwater, and that 
groundwater is flowing right into a navigable water, is it your 
position that that situation is not covered by the current 
Clean Water Act?
    Mr. Guild. If I understand the question correctly, we don't 
do that.
    Senator Van Hollen. No, I know you don't. I know you don't, 
but the position that is being taken by people here is to say 
that that particular example, where you have what is 
unambiguously a point source injecting pollution into 
groundwater that then just flows into the Chesapeake Bay, or 
whatever else it may be, that that is not covered by the Clean 
Water Act. So I am asking you if you are subscribing to that 
position or if your concern is much more with respect to what 
is sometimes called non-point source pollution on a large area, 
you are a cattle rancher, and that somehow becoming a point 
source for the purpose of the interpretation here.
    Mr. Guild. Well, just to be clear, Senator, what you just 
described is not the position I am taking. But in a larger 
sense, if you take a western river valley, the Arkansas River, 
the Upper Missouri Platte River, and you take pivot irrigation 
water, and somehow that percolates back into the soil, under 
the current interpretations in the circuit courts, that is 
somehow a point source pollution; and that is what I completely 
disagree with. That is what I think will upset agriculture all 
across the country, including maybe even in places like 
Maryland, with all due respect.
    Senator Van Hollen. I understand where you are going, but 
as I understand your testimony, you do not dispute the fact 
that if you have what is unambiguously a point source, like a 
pipe coming out of petroleum, Duke Energy Company, or a coal 
ash pit, you are not arguing here today that the Clean Water 
Act does not apply to that, even if its conduit is through the 
groundwater. That is not your argument today?
    Mr. Guild. That is correct. As I said in answer to Senator 
Inhofe's question, the law defines what a point source is, 
discernible, confined, and discrete, so your description fits 
the description of what the law calls a point source.
    Senator Van Hollen. So, Ms. Water, would you take the same 
position, that the current interpretation of the Clean Water 
Act does not find that to be a violation?
    Ms. Waters. As I described in my testimony, that situation, 
first of all, it is always the extreme bad actor case, and 
under the situations I am describing they are permitted. It is 
not like we would have any operations that would inject into 
groundwater without a permit that is protective.
    So that is what I am saying, that absolutely we are 
concerned about pollution of groundwater. We are the ones who 
are largely responsible for water quality in this country. 
Those need to be permitted. But we cannot torture the Clean 
Water Act to extend it in a way that is not stated or in 
addition to congressional intent. It was not planned to be 
extended in that manner.
    Senator Van Hollen. Well, I am just reading these court 
opinions. But you are agreeing that at least in the cases that 
Mr. Holleman has raised, where you are talking about coal ash 
pits and other clear point sources being injected into the 
groundwater and then finding their way to navigable waters, 
that the Clean Water Act does apply. So, if everybody is in 
agreement that it applies in those circumstances--you are not 
in agreement?
    Ms. Waters. No.
    Senator Van Hollen. It is interesting you raise that.
    Ms. Waters. We have cases right now. We have one in the 
Second Circuit that there is a hearing today, so that is a 
situation. It is not a pipe, but it is a basement backup, where 
they are alleging that sewage seeped through the basement, got 
into groundwater, and eventually got into Long Island Sound. 
So, there is an example where we are saying that is not the 
intent of the point source provision in the Clean Water Act; it 
is not to be regulated that way.
    Senator Van Hollen. So, Mr. Chairman, you mentioned some 
Maryland municipalities. I just want to be on the record. The 
Maryland Attorney General, Brian Frosh, filed an amicus brief 
in this case that is before the Fourth Circuit to prevent these 
kinds of discharges into the Chesapeake Bay and other waters.
    Senator Barrasso. Thank you, Senator.
    Mr. Holleman. And Senator, the town of Chesapeake also--
local government in Chesapeake also supported that position.
    Senator Van Hollen. Thank you.
    Senator Barrasso. The Senator's time has expired.
    I would ask unanimous consent to submit for the record a 
brief filed by 18 States, including my home State of Wyoming, a 
State that increased Federal control would ``increase 
administrative and legal costs to the States and their 
environmental protection agencies without materially improving 
environmental quality.''
    Without objection.
    [The referenced information follows:] 
    
    
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    Senator Barrasso. Senator Gillibrand.
    Senator Gillibrand. Thank you, Mr. Chairman.
    Mr. Brown, perfluorinated compounds, or PFCs, which include 
PFOA and PFOS, are serious public health and environmental 
concern in New York State and around the country. PFOA is 
present in the groundwater near Hoosick Falls and Petersburg, 
New York, as a result of a plastic manufacturing plant nearby. 
PFOS is present near two of our Air National Guard bases in 
Newburgh and West Hampton due to the use of firefighting foam 
containing the chemical. The presence of these chemicals has 
contaminated drinking water sources and resulted in a listing 
of Hoosick Falls as a Federal Superfund Site by the EPA.
    Have there been any instances of PFCs migrating from 
groundwater to surface waters that are jurisdictional under the 
Clean Water Act?
    Mr. Brown. The one example where I believe that has 
occurred is in Cape Fear, where a facility that I believe was 
operated by Nemours, formerly part of Dow Chemical, I believe, 
they had releases of PFOA and PFOS into groundwater, and those 
chemicals also were released into surface water. But also the 
groundwater migrated and discharged into the surface water.
    There is also now a new chemical that has also followed 
that exact same pathway called GenX, which, unfortunately, was 
designed to replace the PFCs, and unfortunately, that is now 
also discharging to groundwater and surface water.
    Senator Gillibrand. What is the impact of PFC contamination 
to those jurisdictional waters?
    Mr. Brown. Obviously, in that particular example, the 
concern is that the intake for the city of Wilmington is 
directly downgradient to those discharges; the city of 
Wilmington has had to face challenges in meeting its water 
demands for its customers because of the impact of its water 
supply from those chemicals.
    Senator Gillibrand. How difficult is it to clean up PFC 
contamination once it reaches a river or lake, and what can be 
done to prevent further contamination?
    Mr. Brown. Obviously, the cleanup, once it is in the 
surface water, can be very expensive; you are now dealing with 
very large volumes of water that have to be treated down to 
very, very low levels. We are talking about levels in the very 
low parts per trillion, so minute levels have to be removed 
from the water.
    Clearly, the most effective way to achieve long term 
treatment is to actually remove the source, to physically clean 
up the source and clean up the plume, in addition to treating 
the surface water. Otherwise, you would be treating the surface 
water essentially in perpetuity.
    Senator Gillibrand. Mr. Holleman, as you noted in your 
testimony, the Clean Water Act provides an important tool for 
citizens to compel polluters to clean up environmental 
degradation when environmental authorities fail to take action. 
If pollution that migrates from a point source to rivers and 
lakes through groundwater is not covered under the Clean Water 
Act, what impact would that have on communities that are living 
with this toxic contamination?
    Mr. Holleman. Well, it will be devastating to them because 
they won't have an effective way to stop it. There has been 
talk here about local governments. I can tell you, in the cases 
we have worked on, the local governments supported us.
    In the Fourth Circuit case, an amicus brief was filed by 
the County of Anderson, South Carolina, and I can tell you that 
is about as conservative a Republican county council you could 
ever find. There is no question that they thought their 
community needed to be protected.
    And in our Tennessee case the State agency in Tennessee 
even is supporting our position in an amicus brief as well, as 
is the County of Clermont, Ohio, because local communities that 
are close to their citizens know that if the citizens don't 
have the power to enforce the law, you can't always count on 
Washington or the State capital to protect you.
    Senator Gillibrand. Right. Also, the issue of resources, 
because how aggressive have States historically been in 
addressing this type of contamination absent intervention by 
the EPA or citizen action under the Clean Water Act?
    Mr. Holleman. Well, here is the problem. Some of these 
polluters--for example, I am working on Duke Energy, is one of 
the richest institutions on planet Earth. Our State agency in 
North Carolina simply does not have the legal horsepower to 
fight them, and we are handling one case. And not only does 
Duke Energy have the largest law firm in North Carolina working 
on it, they just added 8 to 10 new lawyers from L.A. and DC to 
come down to Roxboro, North Carolina, to fight us over 
pollution from a coal ash lagoon.
    The State agencies, amongst other things, know they just 
don't have the resources to fight these big entities, and all 
their lawyers and consultants, if they get into a real fight, 
so oftentimes they pick their fights, and the big pollution is 
allowed to continue, but my cousin, who owns a lot with an old 
gas tank on it, has to pull it out of the ground.
    Senator Gillibrand. Right. And what is the prevalence of 
communities with polluted groundwater and surface water that 
are predominantly communities of color and low income 
communities?
    Mr. Holleman. That is a big problem because a lot of these 
sites are located in rural areas where there are poor 
communities, often, as you say, people of color, but this 
pollution falls on everybody of every ethnic background. But 
what happens is when it impacts their drinking water supplies, 
when it impacts their wells, but also it is important when it 
impacts their home values, because they are living in an area 
that has polluted water, and some of these families worked all 
their lives in the mill or even for Duke, they can't sell their 
homes.
    Senator Gillibrand. Same thing is happening in my 
neighborhood.
    Mr. Holleman. Right. And they believe fervently that their 
health has suffered and that members of their communities have 
suffered illnesses as well.
    Senator Gillibrand. Thank you, Mr. Chairman.
    Senator Barrasso. Thank you very much.
    Senator Markey.
    Senator Markey. Thank you, Mr. Chairman.
    Court decision after court decision has supported the EPA's 
longstanding plain and obvious reading of the Clean Water Act. 
For decades, the Agency has had the authority to regulate point 
source pollution that travels through groundwater to navigable 
waters. Now this record includes a ruling from the Fourth 
Circuit just last week.
    Along with his litany of sins against the environment, 
Scott Pruitt has decided to reopen and may possibly upend these 
decades of decisions. By calling into question whether or not 
the EPA can regulate, for example, a pipe that drops pollution, 
water, sludge, 10 feet from a river, Scott Pruitt is leading 
yet another attack on the Clean Water Act. To redefine and 
undermine the EPA's authority here would be a blatant assault 
on public health and the health of our environment. Yet again, 
Scott Pruitt is turning the EPA into every polluter's ally.
    In Southbridge, Massachusetts, there is a landfill that has 
reportedly leaked dangerous and toxic chemicals through the 
groundwater and into nearby wetlands. Concerned citizens have 
brought suit against the town, the owner, and the operator of 
the landfill.
    Mr. Holleman, would a reversal by Scott Pruitt on whether a 
pipe spewing pollution can be regulated under the Clean Water 
Act make it harder for Americans, like these citizens in 
Southbridge, to fight back against pollution in their 
communities and waterways?
    Mr. Holleman. Well, it certainly would because the cadre, 
this huge flock of lawyers that follow these cases for industry 
from court to court, will trump that up. But of course, as you 
know, Senator, Scott Pruitt and no other person other than this 
Congress can change the language of the Clean Water Act, and 
what the EPA has been doing through every administration--from 
Jimmy Carter to the present day--has been to follow the plain 
language of the Act. But if Mr. Pruitt follows the path he is 
on now, he will give a tool to the lawyers who go from case to 
case around the country to frustrate the efforts of the 
community in your State and in North Carolina to protect 
themselves from this kind of pollution.
    Senator Markey. So, if the EPA went back on its 
interpretation of the Clean Water Act that it supported for 
decades, would that make it easier for landfills like the one 
in Southbridge, Massachusetts, and similar landfills in States 
like North Carolina to have polluters be able to avoid 
enforcement?
    Mr. Holleman. Yes, it would give their lawyers a leg up in 
court. Now they have to face the uniform, consistent 
interpretation of the EPA for over 40 years. I would emphasize, 
though, he can't change the law, and we say the law is clear; 
the EPA has simply been following it. He would be acting 
lawlessly to do otherwise.
    Senator Markey. So this would be par for the course for 
Scott Pruitt, another dirty attack on clean water, on clean 
air. It is all part of his profile at the Agency for the year 
and 3 months that he has been in office.
    The final question I have is has the Southern Environmental 
Law Center witnessed a chill in enforcement activity at 
Pruitt's EPA?
    Mr. Holleman. Oh, yes. Now, unfortunately, we have been 
spending our time and effort to help communities protect 
themselves. Now we have to spend time, money, and effort to 
fight with an environmental protection group. Now we have to 
fight what is supposed to be our country's Environmental 
Protection Agency. It is like you are in a never-never land, 
where what is supposed to be right is stood on its head.
    Senator Markey. So the Clean Water Act is very clear, to 
protect families against polluted water. And Scott Pruitt's 
record is very clear; it is to remove protections to ensure 
that families are not exposed to pollutants that could be 
harmful to their children, to the health of their families.
    That is what this debate is all about. It is settled law, 
but not in the mind of Scott Pruitt. It is almost as though 
they have put the fox in the chicken coop. They brought in 
someone who represents polluters in order to finally reclaim 
the EPA for its own, and that is something that is going to be 
fought every single day in this country.
    Thank you, Mr. Chairman.
    Senator Barrasso. Thank you very much, Senator.
    Well, the hearing record will be remaining open for 2 
weeks. I want to thank all of our witnesses for their testimony 
today on the important hearing and matter.
    The hearing is adjourned.
    [Whereupon, at 11:25 a.m. the Committee was adjourned.]
    [Additional material submitted for the record follows:] 
    
    
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