[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
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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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