[Senate Hearing 116-45]
[From the U.S. Government Publishing Office]
S.Hrg. 116-45
A REVIEW OF WATERS OF THE U.S. REGULA-
TIONS: THEIR IMPACT ON STATES AND THE
AMERICAN PEOPLE
=======================================================================
JOINT HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
AND THE
SUBCOMMITTEE ON FISHERIES,
WATER, AND WILDLIFE
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JUNE 12, 2019
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
37-426 PDF WASHINGTON : 2019
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware,
SHELLEY MOORE CAPITO, West Virginia Ranking Member
KEVIN CRAMER, North Dakota BENJAMIN L. CARDIN, Maryland
MIKE BRAUN, Indiana BERNARD SANDERS, Vermont
MIKE ROUNDS, South Dakota SHELDON WHITEHOUSE, Rhode Island
DAN SULLIVAN, Alaska JEFF MERKLEY, Oregon
JOHN BOOZMAN, Arkansas KIRSTEN GILLIBRAND, New York
ROGER WICKER, Mississippi CORY A. BOOKER, New Jersey
RICHARD SHELBY, Alabama EDWARD J. MARKEY, Massachusetts
JONI ERNST, Iowa TAMMY DUCKWORTH, Illinois
CHRIS VAN HOLLEN, Maryland
Richard M. Russell, Majority Staff Director
Mary Frances Repko, Minority Staff Director
----------
Subcommittee on Fisheries, Water, and Wildlife
KEVIN CRAMER, North Dakota, Chairman
SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois,
MIKE BRAUN, Indiana Ranking Member
DAN SULLIVAN, Alaska BENJAMIN L. CARDIN, Maryland
JOHN BOOZMAN, Arkansas BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi SHELDON WHITEHOUSE, Rhode Island
RICHARD SHELBY, Alabama JEFF MERKLEY, Oregon
JOHN BARRASSO, Wyoming (ex officio) CHRIS VAN HOLLEN, Maryland
THOMAS R. CARPER, Delaware (ex
officio)
C O N T E N T S
----------
Page
JUNE 12, 2019
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.. 3
Cramer, Hon. Kevin, U.S. Senator from the State of North Dakota.. 5
WITNESSES
Goehring, Doug C., Commissioner, North Dakota Department of
Agriculture.................................................... 46
Prepared statement........................................... 48
Responses to additional questions from Senator Carper........ 54
Response to an additional question from Senator Cramer....... 56
Fornstrom, Todd, President, Wyoming Farm Bureau Federation....... 59
Prepared statement........................................... 61
Responses to additional questions from:
Senator Barrasso......................................... 69
Senator Carper........................................... 70
Response to an additional question from Senator Cramer....... 72
Responses to additional questions from Senator Merkley....... 72
Elias, Richard, Supervisor, District 5 of the Pima County Board
of Supervisors in Arizona...................................... 74
Prepared statement........................................... 76
Response to an additional question from Senator Carper....... 81
Responses to additional questions from Senator Merkley....... 81
ADDITIONAL MATERIAL
From Preventing Pollution of Navigable and Interstate Waters to
Regulating Farm Fields, Puddles and Dry Land: A Senate Report
on the Expansion of Jurisdiction Claimed by the Army Corps of
Engineers and the U.S. Environmental Protection Agency under
the Clean Water Act. United States Senate Committee on
Environment and Public Works; Majority Staff. Released
September 20, 2016............................................. 171
Submitted by Senator Barrasso:
Letters:
To Hon. E. Scott Pruitt, Administrator, U.S.
Environmental Protection Agency, and Douglas W. Lamont,
Deputy Assistant Secretary of the Army, from Senator
Barrasso, et al., September 27, 2017................... 209
To Michael McDavit, Office of Water, U.S. Environmental
Protection Agency, from Jim Magagna, Executive Vice
President, Wyoming Stock Growers Association, April 11,
2019................................................... 218
To the U.S. Environmental Protection Agency from Mark
Gordon, Governor of Wyoming, April 15, 2019............ 219
To Senator Barrasso from the Peaks & Prairies Chapter of
the Golf Course Superintendents Association of America,
June 8, 2019........................................... 241
To Senator Barrasso from the National Association of Home
Builders, June 10, 2019................................ 243
To Senators Barrasso and Carper from the U.S. Chamber of
Commerce, et al., June 12, 2019........................ 244
To Senators Barrasso, Carper, Cramer, and Duckworth from
the Edison Electric Institute, June 12, 2019........... 298
United States District Court, Southern District of Texas,
Galveston Division, State of Texas, et al, Plaintiffs, vs.
United States Environmental Protection Agency, et al,
Defendants. Memorandum Opinion and Order, Entered May 28,
2019....................................................... 300
Submitted by Senator Carper:
Letter to Senators Barrasso and Carper from the National
Parks Conservation Association, June 11, 2019.............. 314
Letter to Senators Barrasso and Cramer from the Natural
Resources Defense Council, June 11, 2019................... 319
Opinion, The proposed change to the definition of ``waters of
the United States'' flouts sound science. S. Mazeika, et
al. Proceedings of the National Academy of Sciences, June
11, 2019................................................... 321
A REVIEW OF WATERS OF THE U.S. REGULATIONS: THEIR IMPACT ON STATES AND
THE AMERICAN PEOPLE
----------
WEDNESDAY, JUNE 12, 2019
U.S. Senate,
Committee on Environment and Public Works,
jointly with the Subcommittee on Fisheries,
Water, and Wildlife,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m. in
room 406, Dirksen Senate Office Building, Hon. John Barrasso
(Chairman of the Committee) presiding.
Present: Senators Barrasso, Carper, Inhofe, Capito, Cramer,
Braun, Rounds, Sullivan, Boozman, Ernst, Cardin, Merkley, 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 holding a joint hearing of the full Committee,
as well as the Subcommittee on Fisheries, Water, and Wildlife,
on Waters of the United States regulations, or WOTUS.
Since this is a joint hearing, both the full Committee and
Subcommittee Chairmen and Ranking Member will give opening
statements.
This is the Committee's first hearing on WOTUS since the
Trump administration published its proposal to redefine the
term earlier this year. The Trump administration is not the
first to examine the term ``waters of the United States.'' For
more than 45 years, all three branches of Government have
struggled to interpret the phrase.
We have heard many times in this Committee about the undue
regulatory burden placed on American farmers and ranchers when
the term is defined too broadly. Previous definitions have
inappropriately and illegally expanded Washington's control
over water features all across the country.
You can look no further than the Obama administration's
illegal so-called Clean Water Rule. In 2017, the Committee held
a hearing on the legal, scientific, and technical basis for the
rule. We heard how the U.S. Army Corps of Engineers was cut out
of the rulemaking process. Major General John Peabody, who was
leader at the Corps during the Clean Water Rule's development,
testified to this Committee that the Clean Water Rule was not
based on the Corp's expertise or experience.
Under the prior Administration's rule, ranchers and farmers
across the country were told that their irrigation ditches,
their ponds, and their puddles were navigable waters and could
be regulated by the Federal Government.
The Clean Water Act is a strict liability statute. If the
Federal Government claims a landowner has violated the Clean
Water Act, that landowner can face thousands or millions of
dollars in penalties.
This has played out in my home State of Wyoming. During the
Obama administration, the EPA alleged that Andy Johnson, a
farmer in Fort Bridger, Wyoming, owed $16 million in fines for
putting a stock pond on his land in 2012. It was outrageous.
Congress opposed the Obama administration's rule. Under a
joint resolution introduced by Senator Ernst, both houses of
Congress disapproved the rule under the Congressional Review
Act. President Obama vetoed the resolution and allowed the rule
to be implemented.
The courts have since stepped in and blocked the rule from
going into effect in a majority of States across the country.
Many of those legal battles continue to this day.
Just a few weeks ago, on May 28th, 2019, a Federal judge in
Galveston, Texas, was the first judge to rule on the merits of
the Obama administration's rule. The judge found that the Obama
administration had violated the Administrative Procedure Act
when it issued the rule.
While the rule is blocked in a majority of States, it does
remain the law in 23 States and in some counties in Arizona.
That is why it is critical that the Trump administration
expeditiously repeal the Obama administration's rule and issue
a new, lawful definition for waters of the United States, a
definition that everyone can understand; a definition that
doesn't take away States' rights; and a definition that
respects the Clean Water Act and the Constitution.
In the past, the complex WOTUS regulations have forced
landowners to hire expensive consultants in order to figure out
whether a water body on their land is a water of the United
States. The Trump administration's proposed rule is an attempt
to bring more regulatory certainty to American landowners.
That is why I am so pleased that we have this panel of
witnesses today. I look forward to hearing their reactions to
the Trump administration's proposal. I want to know if the rule
is workable for them. The Administration needs to get this
definition right. We need to remove the cloud of uncertainty
that landowners, business owners, businesses, and States have
faced over the years.
Today's hearing is an important opportunity to hear from
stakeholders on how past definitions have gotten it wrong and
what the Trump administration can do to get it right.
Before we move to our witnesses today, I would like to turn
to Ranking Member Carper for his remarks.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thanks, Mr. Chairman.
People ask me what I like about my job and what gives me
joy in my work, and one of the things that gives me joy in my
work is working across party lines and getting things done.
There is a surprising amount of agreement here amongst us on
really important issues that affect our air, our water, our
planet. This is an issue that there is less agreement, so I
just want to telegraph my pitch and ask you to hear me out.
Thanks, Mr. Chairman, for bringing us together, and our
thanks to our three witnesses for joining us today.
As I have said before in this Committee, there is perhaps
no other sector of the economy more intrinsically tied to
environmental quality than our agricultural sector. After all,
our farmers need clean water; they need healthy soil to produce
high quality crops, and that is something I often hear when I
am in Sussex County, which is Delmarva's southernmost county
and home to some of the world's finest farms and farmers and
producers.
If you drive through Sussex County, you will see sprawling
fields, you will see farms growing soybeans, poultry, corn, and
grain. You will see a lot of chicken houses, too. If you stop
at a farm stand, chances are you will meet someone whose family
has farmed in Delaware for generations. Back home in the First
State, we have proven time and time again that we can have
environmental protection for our environment without hampering
our agricultural sector's ability to grow and to prosper.
Unfortunately, however, our farmers today are facing real
adversity, and it is tangible, and it is hurtful. Just this
week, my staff heard from someone whose family has been farming
for more than a century. Over the years they have figured out
how to budget and adjust their growing seasons around
unexpected droughts or floods or freezing temperatures, but
they could never foresee the impact of this President's trade
wars.
I am hearing from farmers who are literally unable to plant
a crop because we have so much rain. Too many of our fields are
mud. Commodity prices are depressed. Our ability to sell
soybeans, for example, to China and other countries has
diminished, and we are hurting. Farmers never tell you they are
having a great year, but I have never heard so many folks say
that it is this bad. I think I am fearful that we are pursuing
some policies that are not helping, but making it worse.
Meanwhile, in the Midwest, farmers are still reeling from
catastrophic floods. This Administration's surrender on climate
change ensures that more devastating floods, worsening
droughts, and fires the size of States like my State will
continue to keep farmers and crops off their fields. Add to
this the erratic tariffs and climate denial this
Administration's confusing renewable fuels gamesmanship, which
is clearly intended to please everyone, and sadly, satisfies no
one.
This is not the way to do business. So I ask a simple
question: Why should anyone trust the changes that this
Administration proposes to the definition of waters of the U.S.
are going to deliver for our agricultural producers? I think
the answer is we can't.
Even more important, I think, is that despite the
incredible hardships besetting of farmers today, they do not
really need the false promises of the Administration's new
WOTUS definition. Since the days of Republican President
Richard Nixon, Congress and EPA have ensured that farmers
engaged in normal farming activities are not covered or
affected by Clean Water obligations.
In fact, the economic analysis of the WOTUS rule conducted
by this Administration's EPA and U.S. Army Corps of Engineers
determined that, on average--get this, on average--only eight
farmers per year needed 404 permits requiring mitigation. That
is right, eight. Not 800, not 80, not 108. Eight.
Developers, on the other hand, required about 990 permits
per year. Eight on the one hand for the farmers; 990 for the
developers. If you look at the total of 390,000 permits these
agencies included in their economic analysis, you will find
that less than 1 percent of the permits were issued for
agricultural related purposes. With that, I would ask all of us
in this room to consider who truly benefits from the proposals
from this Administration on this front.
Instead of the promised clarity and simplicity, I am afraid
that the faulty and incomplete definitions in the President's
proposal will end up demanding a great deal of time and money,
and a boatload of consultants, to figure it out. At the same
time, instead of reducing costs and cumbersome hurdles for our
constituents, with this rollback, the only thing we are sure to
have are degraded wetlands and polluted headwaters. The
ephemeral and intermittent streams of our headwaters may be
small enough to hop across, but under this proposal they will
deliver more pollution, higher costs, and economic burdens,
especially to poor and disadvantaged communities downstream.
These communities will see drinking water bills rise as
their utilities have more pollution to scrub. These are neither
hypothetical nor hysterical predictions. The American Public
Works Association, in its comments on the proposed Trump rule,
said recently, and I quote--this is not me, this is the
American Public Works Association. Here is the quote: ``The new
proposed rule would likely impose higher costs on local
agencies and water providers for those bodies to deliver those
services. As a result, those bodies would be faced with a
choice between raising rates and potentially pricing members of
the community out of those services or risking noncompliance by
trying to stretch already thin budgets for water and wastewater
treatment.''
Meanwhile, many fishermen and hunters will see wetland
habitats destroyed, along with major disruptions to the outdoor
recreation industry. And what about farmers downstream? Under
the Trump proposal, in those waters no longer defined as waters
of the U.S., industries would be free to discharge pollutants
as they see fit, and land developers will be able to dredge and
fill upstream wetlands. I wonder how farmers in Delaware and
elsewhere would feel about having to install water treatment
facilities to ensure that they have the clean water they need
to raise healthy crops and livestock.
I just don't understand why this Administration would
propose a definition for waters of the U.S. that provides less
clarity--not more clarity--dirtier water--not cleaner water--
disrupted wetlands, and higher costs to just about everybody
represented in this room and far beyond.
My dad used to say to my sister and me when we were little
kids growing up and we would pull some bone headed stunt, he
would always say, ``Just use some common sense.'' He said that
a lot. We must not have had any common sense. You can probably
recall things that your parents said to you when you were
little and growing up. If my dad were here with us today, he
would probably say the same thing about common sense, and he
would probably be right. We just need to use some common sense.
Thank you, Mr. Chairman.
Thank you all for joining us.
Senator Barrasso. Thank you, Senator Carper.
We will now hear from Senator Cramer, Chairman of the
Subcommittee on Fisheries, Wildlife, and Water.
OPENING STATEMENT OF HON. KEVIN CRAMER,
U.S. SENATOR FROM THE STATE OF NORTH DAKOTA
Senator Cramer. Thank you, Mr. Chairman. Thank you to you
and your staff, and to Senator Carper and his staff for working
with me to convene this joint hearing and really for
highlighting the importance of this issue by having a joint
hearing and raising it here to the full Committee level.
Common sense. I like that. I could probably incorporate
that a little bit into my comments; we will see.
Really, ever since the passage of the Clean Water Act in
1972, North Dakota landowners, farmers, ranchers have had to
navigate, if you excuse the expression, this very complex
regulatory field that changes with water, but also changes with
political tides and sort of the culture of the moment.
Under the Obama administration, the uncertainty really
reached a pinnacle with the 2015 WOTUS rule when it was
proposed and then finalized. There was nothing simple about it.
In fact, I have a tendency to be pretty good at simplifying
complicated things, and then the lawyers get it.
But remember the EPA Administrator at the time promised us,
``that this rule would save us time, keep money in our pockets,
cut red tape, and give certainty to business.'' Well, she was
right, it gives certainty: certain death to business, certain
death to lots of farmers if in fact it was to go into effect.
But certainty isn't always the best. The rule did exactly the
opposite, really, especially in North Dakota.
Rather than focusing on our shared goal of clean water--I
think we all have to admit we all want clean water--this rule
really was a new, massive Federal power grab of farmers' land
that Congress never intended the Federal Government to have.
The importance of the issue is demonstrated when the State of
North Dakota successfully led several States in challenging the
2015 regulation in Federal court in North Dakota v. the EPA.
The debate that has surrounded WOTUS for decades is really
a legal question, a legal and constitutional question, rather
than one of science or the water cycle. A lot of members like
to go to the water issue. I want to stick with the Constitution
and the legal issue. This is a legal question.
It is important to note, again, that we all share the
common goal of clean water. In fact, North Dakota farmers, as
well as farmers all around the country, know better than
anybody; they are the stewards of their own land and water.
They have the most to gain by keeping it clean and the most to
lose by ruining it. It is very serious, and it is very personal
to them.
So we should dispel the notion that those of us who oppose
the 2015 WOTUS rule are somehow advocating for dirty water and
unscientific water management. It is a matter of who manages
your water, not whether it should be managed.
The reality is we have to live within the confines of the
law and of the Constitution. In 2001 and again in 2005, the
Supreme Court ruled that the Federal agencies went too far when
they tried to claim regulatory authority over wetlands and non-
navigable waters that had no significant connection to
interstate commerce. In both cases the Supreme Court made clear
that the Federal Government has limited jurisdiction under the
Clean Water Act.
Now, Commissioner Goehring knows this about us, about me,
and where we all live. A lot of us have pontoons, and we drive
them on the Missouri River. It is pretty clear to us it is
navigable. Now, of course, you can't go to the next State
anymore because there is a dam every few hundred miles, but
that is navigable. But I can't put it on my uncle's slough and
get to the Missouri River; I can only stay on my uncle's
slough.
It is not complicated. Interstate commerce requires the
movement of let's say North Dakota grain on the Mississippi
River. We understand that to be navigable. We understand that
to be interstate commerce. When it gets more complex than that,
that is when my brain starts hurting.
When the Obama administration released the rule in 2015, a
Federal District Court in North Dakota granted a preliminary
injunction blocking implementation of the rule in 13 States.
The Chairman referenced that as part of a group of lawsuits.
After the 2019 proposal was released, outside groups like Ducks
Unlimited expressed opposition, citing supposed scientific
evidence. To quote them specifically, they said that the
proposed rule will leave geographically isolated wetlands
without protection.
Now, there are two problems with that statement. First of
all, it makes my argument. Isolated is not navigable. Isolated
is the very definition that opposes the idea of navigable.
Second of all, it ignores that the Federal Government is not
the only protector of water in the country. In fact, the
Constitution gives the primary responsibility of that to
States. So, with all due respect, it is incorrect, and it is
not very sound legal argument. The key question is what the
legal constraints are established under the law.
I am going to submit the rest of my opening statement for
the record and spare you the rest of it.
[The prepared statement of Senator Cramer was not received
at time of print.]
Senator Cramer. I do want to, if I could, Mr. Chairman,
without objection, place into the record some of the documents
that the comments that were presented by North Dakota farm
groups and our attorney general, Wayne Stenehjem.
Senator Barrasso. Without objection.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Cramer. With that, I look forward to the questions.
Senator Barrasso. Thank you very much.
Senator Inhofe, you have something you wanted to place in
the record as well.
Senator Inhofe. Yes, I have something, unanimous consent to
put something in the record. You know, I have learned just now
that farmers in North Dakota and the farmers in Oklahoma are
about the same. The Obama rule, back when I was Chairman of
this Committee, was not one of the concerns of farmers and
ranchers; it was the concern, No. 1. No. 1 concern. And it goes
beyond farmers and ranchers, so I do want to put this into the
record. This is from the Oklahoma chapter of the Golf Course
Superintendents Association, very supportive of what the
President is trying to do.
Senator Barrasso. Without objection.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Senator Duckworth, who is the Ranking
Member of the Committee, has an unavoidable conflict. She won't
be able to be here. We will include her statement, as well, in
the record, and I know that she is going to be monitoring the
Committee and the activities today.
[The prepared statement of Senator Duckworth was not
received at time of print.]
Senator Barrasso. Senator Cramer, could I ask you to
introduce Commissioner Goehring before he makes his statement?
Senator Cramer. I would be honored to.
I have known Doug for a long time. He and I have been on
the campaign trail together. We have been in lots of policy
discussions together.
He is a farmer, first and foremost. He is a producer of
food for a hungry world. He does it, of course, extremely well,
along with his sons, his family. It is a family business like
it is in most places in this country. He has been the
Commissioner of Agriculture for an awfully long time.
Doug, I don't even remember how many years it has been.
He is also Vice Chair of the national organization, very
active on the national scene, if you will, on agricultural
policy.
A very good friend. Above everything else, Doug is a
personal friend, faithful brother, and I am grateful for his
testimony today and his service to our State.
Senator Barrasso. Thank you, Senator Cramer.
I am going to take the privilege also of introducing Todd
Fornstrom, who is here and has served as the President of the
Wyoming Farm Bureau Federation since November 2016. He was
elected to serve on the Board of Directors of the American Farm
Bureau Federation in January of this year.
He owns and operates a farm with his father and his two
brothers on the Fornstrom feedlot near Pine Bluffs, Wyoming.
His farm consists of irrigated corn, wheat, alfalfa, dry beans,
and a cattle and sheep feedlot as well.
He also runs a trucking business, custom harvest business,
and runs premium hay products and alfalfa pellet mills.
He is a very busy man in our State. Over the years, Todd
and his wife Laura have held many leadership roles at the
county level, the district level, the State level. He is also a
local school board member, so I assure you that this hearing
today will be no more challenging than a local school board
meeting.
Also want to congratulate your son, who has just finished
his first year at West Point. I know he is getting ready to
have 2 weeks off, and I know you are looking forward to having
him home.
I want to thank you for everything you do for the people of
Wyoming and for being here today.
Senator Carper. Can I ask a question of Richard Elias?
Thank you. I think you are two majority witnesses, one minority
witness.
Are you from Arizona?
Mr. Elias. Yes.
Senator Carper. And are you from a county that is spelled
P-I-M-A and pronounced Pima?
Mr. Elias. Pardon me, sir?
Senator Carper. Are you from a county that is spelled P-I-
M-A and is pronounced Pima?
Mr. Elias. Pima County.
Senator Carper. Where is it?
Mr. Elias. It is in southern Arizona. We have about 100
miles of border with the nation of Mexico. It is a large county
geographically, bigger than six States in the United States;
have about a million residents.
Senator Carper. Any States represented here? Probably one
or two. And you are a supervisor there.
Mr. Elias. I am a county supervisor there, and I am
currently the Chair of the Board, and I have been on the Board
of Supervisors for 16 years.
Senator Carper. All right; good. We are delighted you are
here. Thanks for coming.
Senator Barrasso. And you pronounce it Alias?
Mr. Elias. Alias, yes.
Senator Barrasso. Alias. All right, well, thank you very
much, Mr. Chairman, for being with us today as well.
I would like to remind all of the witnesses that your full
written testimony is going to be part of the official hearing
record. Please keep your statements to 5 minutes so that we
will have time for questions.
Commissioner Goehring, please proceed.
STATEMENT OF DOUG C. GOEHRING, COMMISSIONER,
NORTH DAKOTA DEPARTMENT OF AGRICULTURE
Mr. Goehring. Good morning, Chairman Barrasso, Minority
Ranking Member Carper, Subcommittee Chairman Cramer, and
Minority Ranking Member Duckworth, who could not join us today,
and members of the Committee. Thank you.
Thank you for the opportunity to present to you today about
waters of the United States regulations and their impact on
States and on our agricultural producers.
My name, for the record, is Doug Goehring, North Dakota
Agriculture Commissioner.
Our more than 26,000 farmers and ranchers own, operate, and
manage almost 90 percent of the land, or nearly 40 million
acres in North Dakota. Agriculture is our State's largest
industry. It accounts for 25 percent of our total economy.
Although only 2 percent of our population are farmers and
ranchers, it supports 24 percent of our State's work force.
Now, comparatively, that is higher than nationally, which
is approximately 19 percent of the Nation's work force is
supported by agriculture.
As you can see, we have a map up here. This relates back to
the State and as I get into prairie potholes.
Under the longstanding traditional navigable water
definition, there were 5,100 miles of jurisdictional waters in
our State. The 2015 rule would have expanded that Federal
jurisdiction to 85,604 miles in North Dakota.
North Dakota is one of five States in the prairie pothole
region, and the 2015 rule would have asserted jurisdiction over
a wide array of dry land features, isolated features, and
vaguely defined other waters. It almost would have encompassed
the entire prairie pothole region in our State.
It conceivably placed every river, creek, stream, and vast
amounts of adjacent lands in our State under Federal
jurisdiction. North Dakota would have witnessed the takings of
approximately 80 percent of our State.
I am greatly concerned about the 2015 rule as it attempted
to infringe and encroach upon the sovereignty of our States.
The most fundamental management practice in agriculture is
effective water management. It is either to retain, conserve,
or convey. An overly rigid one size fits all Federal regulatory
scheme is not reasonable, it is not workable, and it is not
appropriate.
Unlike the 2015 rule, the 2019 rule was crafted with input
from the States. We advocated for a new rule not for partisan
reasons, but because the previous rule creates uncertainty for
producers, it conflicts with State jurisdiction, and regulates
large tracts of land where no rivers or streams exist.
Overall, we are seeking a new rule that will allow farmers
and ranchers to visually see what is and is not jurisdictional
without forcing them to hire a consultant. We need to craft a
rule that adheres to the text and the legal precedent of the
Clean Water Act and gives farmers and ranchers clear lines to
operate within. As such, I support further changes to the 2019
proposed rule that will clarify navigability, more clearly
define tributaries, and improve clarity regarding ditches and
wetlands.
In the 2019 proposed rule, I believe that the proposed
definitions of perennial and intermittent are confusing, and to
clarify these terms, I would encourage the Administration to
consider the value of physical indicators and continuous
surface water flow.
I agree with the intent to leave most ditches and
artificial channels out of the Federal jurisdiction. Across
this Nation, States, counties, and municipalities regulate
water flow through ditches to conserve, to allocate, and
maintain water quality.
I applaud the agency for providing a clear definition of
upland, though. That ensures isolated wetlands are not
jurisdictional.
North Dakota is the lead plaintiff for a coalition of
States with a preliminary injunction on the 2015 rule. It
continues to have significant interest in the Waters of the
U.S. rulemaking. In our State, through its laws, agencies
already properly, sensibly, and consistently protect the waters
of the State, both the surface and the subsurface.
States have intimate knowledge of their resources and are
much better equipped to understand the specific and unique
needs of our people and the industries.
Finally, I would like to say no one loves our land and our
resources more than we do. We drink the water, we produce the
food, and we raise our families on the land with the intent to
pass it on to the next generation.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Goehring follows:]
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Senator Barrasso. Well, thank you very much for your
testimony. We are grateful you are here.
Mr. Fornstrom.
STATEMENT OF TODD FORNSTROM, PRESIDENT,
WYOMING FARM BUREAU FEDERATION
Mr. Fornstrom. Chairman Barrasso, Chairman Cramer, Ranking
Member Carper, I am Todd Fornstrom, President of the Wyoming
Farm Bureau. I farm on a farm outside of Pine Bluffs, Wyoming,
with my father and two brothers and our families. We maintain a
diversified farm that produces corn, wheat, alfalfa, dry beans,
as well as a cattle and a sheep feedlot.
Our area is unique. We sit at 5,000 feet, and we get
between 12 and 14 inches of rain, so it is arid. It is
basically a desert, but we use groundwater.
My wife and I, Laura, have four kids, a set of twins that
are going to be seniors in high school; we have a senior in
college that is going to be out in the world next year, and
like Chairman Barrasso mentioned, I have a son at West Point. I
also am a member of the American Farm Bureau Board of
Directors.
I appreciate the opportunity to appear before this
Committee on behalf of the Wyoming Farm Bureau and the American
Farm Bureau, and also would like to thank the Committee members
for the important role this Committee plays in protecting the
Nation's water resources and its critical infrastructure.
On a personal level, I am deeply protective of this water
that we talk about. I have raised my children and my brother's
families on a well that we farm around every day, so it is not
something we talk lightly where we come from.
The Farm Bureau cannot overstate the importance of a clear
rule that farmers and ranchers can understand without needing
armies of consultants and lawyers. We believe the proposed rule
is an important step in bringing the WOTUS definition back in
line with what Congress intended to be the scope of the Federal
jurisdiction under the Clean Water Act.
The proposed rule gives meaning to the word ``navigable''
and recognizes that the essential policy underpinning the Clean
Water Act is to preserve the State's traditional and primary
authority over land and water use.
Congress also intended for the Federal Government to work
hand in hand with States, which is why the Act deals with
illegal dumping and water pollution in a bunch of different
ways that do not rely on treating every wet spot in the
landscape as waters of the U.S.
The proposal would not weaken the many existing Federal,
State, and local laws that protect our resources and wildlife.
Nor does it limit the ability of the State and local entities
to protect the sources of drinking water.
I want to draw your attention to one protection in
particular. Within our State of Wyoming, my operation with its
two feedlots is required to get a permit that is administered
by the State. This permit did require us to make structural
changes to our operation somewhere in the range of $350,000. It
was expensive, and it was not anything that we do on normal
farming days.
As part of the program, the State has conducted yearly
random inspections on our farm. They are doing a good job.
Wyoming's ability to effectively and thoroughly protect water
resources within the State through its own regulatory regime is
exactly what Congress intended to preserve through the Clean
Water Act, and nothing in the new proposed rule changes that.
Many people have spoken out against the rule, have gone out
of their way to mischaracterize the scope and impact that is
proposed by this rule. In reality, this proposal provides much
needed clarity in definition and throughout the whole. It also
maintains protections for clean water while preserving States'
traditional authority over the local land and water use.
Finally, it reflects legal and policy decisions informed by
science.
But there are still a few things that we could improve on.
We feel there could be more clarity in key terms that are
relevant to several jurisdictional categories of water, such as
intermittent. We also feel that the agency should eliminate
ditches as a standalone category of jurisdictional waters.
Finally, the agencies could make it more clear in the
definition of wetlands that a wetland must satisfy all three of
the Corps' delineation criteria.
I appreciate the opportunity to provide this testimony and
look forward to your questions. Remember, the goal of everybody
in this room is clean water and clear rules.
Thank you.
[The prepared statement of Mr. Fornstrom follows:]
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Senator Barrasso. Well, thank you very much for being here.
Thank you for your testimony. Sorry for the buzzes and whistles
that are going off reflecting what is going on on the Senate
floor. Thank you so much for your testimony and being with us
today.
Now, Mr. Elias.
STATEMENT OF RICHARD ELIAS, SUPERVISOR, DISTRICT 5
OF THE PIMA COUNTY BOARD OF SUPERVISORS IN ARIZONA
Mr. Elias. Good morning, Chairman Barrasso, Ranking Member
Carper, and Chairman Cramer. Thank you for inviting me here to
provide this testimony today.
Pima County, in southern Arizona, with Tucson its county
seat, has a deep and longstanding interest in protecting our
waterways from pollution. As residents of the Southwest, we are
keenly aware of the importance of clean water.
I am a seventh generation resident of Arizona and the arid
desert Southwest. Groundwater contamination from surface
discharges of the industrial solvent TCE and other toxins have
ravaged the district I represent.
TCE reached groundwater used for homes and businesses in
the early 1950s, but it was not discovered until 1981.
Thousands who were impacted have died. Countless others have
suffered painful and debilitating diseases linked to their
exposure.
Many of those who suffered or died from TCE exposure were
personal friends of mine. Those losses and that suffering still
pain me deeply. We cannot allow that to happen again.
The Clean Water Act has served as a critical protection for
our water supply because it has been applied since its 1972
enactment to the intermittent and ephemeral watercourses that
dominate our area and into which TCE and other toxins were
dumped. The proposed new definition of waters of the U.S.
eliminates protections for intermittent and ephemeral streams.
We need to protect our residents, and we need to protect
the habitat and wildlife corridors that provide nourishment and
shelter for our unique Sonoran Desert creatures. In my
homeland, much of this habitat and these wildlife corridors are
intermittent or ephemeral waterways. They require legal
protection.
What is now the city of Tucson was begun on the banks of
the Santa Cruz River by indigenous inhabitants more than 4,000
years ago. Its water gave them life, water to drink, and water
for food crops.
Groundwater pumping and use since the early years of the
20th century has dried up most of the ones verdant Santa Cruz.
But it, and the numerous intermittent and ephemeral tributaries
to it, remain vital parts of our lives and our heritage. They
must be protected.
Water still flows in the Santa Cruz, downstream from
wastewater treatment plants that serve our urban centers, and
its quality, and that of the biosolids from the plants, are
regulated under the Clean Water Act's existing regulatory
scheme.
In order to meet Clean Water Act standards, we recently
undertook a $650 million upgrade of our two largest wastewater
treatment plants. Their now clean discharges into the Santa
Cruz have recreated important riparian habitat and restored an
endangered native fish. We must not lose those wonderful
benefits.
The treatment plants' biosolids are transported to nearby
farms, where they serve as a soil amendment that increases the
per-acre production of crops, so they have value in our arid
region. We cannot afford to see them contaminated and no longer
useful.
Livestock ranching, a livelihood of my relatives and
ancestors, and once a significant economic factor in our
region, remains an active part of our heritage. This industry
relies on the very limited water that flows intermittently and
seasonally in ribbons meandering through our area. When water
flows, ranchers collect it in pools, known as stock ponds, for
their animals. They require clean water.
This proposed EPA regulation would rely on States to
protect water quality, but many States have limited their own
ability to develop State rules to protect water quality. Two-
thirds of the States, including Arizona, have laws requiring
that State or local water quality rules be no more stringent
than the Clean Water Act. Arizona has no State regulatory
program addressing the quality of surface water or wetlands.
The proposed new rule would adversely affect the health and
welfare of our community and the entire region. By removing
protections for intermittent and ephemeral streams, it
eliminates protections for virtually all of our watercourses,
needlessly jeopardizing our drinking water, our watersheds, our
agricultural producers, and numerous tribal nations.
Pima County residents deserve better. We strongly encourage
this body to oppose implementation of this proposed rule.
I would also add that I have learned to forgive those folks
and companies and the Air Force who poisoned the water in
southern Arizona, but I have also learned that I should never
forget what happened to those folks who are not here to voice
their objections today.
Thank you very much for listening.
[The prepared statement of Mr. Elias follows:]
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Senator Barrasso. Thank you very much for your testimony.
I have a letter that I am going to introduce to the record.
The Arizona Governor has already indicated his support for a
new waters of the U.S. definition and his willingness to change
the State law if needed. He sent a letter to the EPA outlining
all of this, and I ask unanimous consent to enter this letter
into the record.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Senator Carper.
Senator Carper. I have a unanimous consent as well, this
from another Governor, Governor of the Commonwealth of
Virginia, a letter to enter into the record, and I would ask
that it be, a letter from Matt Strickler, Secretary of Natural
Resources from the Commonwealth of Virginia. I would like to
submit it to the record. The letter makes clear that many
States--not just Virginia, but many States--do not support a
retreat from the protection and certainty provided by the 2015
Clean Water Rule.
Thank you.
Senator Barrasso. Without objection, that is also
introduced.
[The referenced information follows:]
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Senator Barrasso. Due to some scheduling conflicts, I am
going to defer my opening line of questions and defer my time
to Senator Ernst.
Senator Ernst. Thank you very much, Mr. Chair. I appreciate
the flexibility.
As Senator Barrasso had mentioned in his opening statement,
back in 2015 I was proud to introduce legislation that would
have nullified the Obama administration's flawed WOTUS rule.
This was a rule that gave the Federal Government authority to
regulate 97 percent of the land in Iowa, and it posed serious
challenges for farmers, for our ranchers, and numerous other
stakeholders, and I can truly say this is one of those issues
where people that don't normally collaborate together came
together in opposition to this far reaching rule.
Unfortunately, after passing both the House and Senate with
bipartisan support--bipartisan support--my legislation was
vetoed by President Obama.
Getting this rule off the books has been one of my top
priorities, and I am encouraged by the Trump administration's
proposed rule, which provides much needed predictability and
certainty by establishing clear and reasonable definitions of
what qualifies as an actual water of the United States.
While the 2015 rule recognized ditches broadly as a water
of the U.S., what I would like to do is go ahead--we will talk
about ditches, but I do want to ask Mr. Goehring--the rule
recognized ditches broadly as waters of the U.S. The proposed
rule only defines certain ditches as waters of the U.S. Though
this can be seen as an improvement upon the 2015 rule, do you
believe that the EPA and the Corps should provide additional
clarification as to what ditches qualify as waters of the U.S.?
Mr. Goehring. Mr. Chairman and Senator Ernst, yes, I
believe they need to expand that definition, clarify it,
because in many cases ditches are an artificial feature,
generally moved to convey water, and many municipalities and
States which have authority over the waters of the State
already are going to make sure that they adhere to the Clean
Water Act and that water is appropriated, allocated, conserved,
and retained properly.
Senator Ernst. Very good. I appreciate that perspective.
So, ditches is one of those issues that we need to
overcome. Another area is, like was described earlier, standing
water, maybe perhaps in a field or so.
Mr. Fornstrom, under the proposed rule, intermittent water
features are jurisdictional and are defined as surface water
flowing continuously during certain times of a typical year. In
your testimony, you recommend including a minimum duration of
continuous flow for a feature to be considered intermittent.
What regulatory challenges or confusion would this change that
you have recommended help prevent?
Mr. Fornstrom. Thank you, Senator Ernst. The intermittent
issue that we have is we would appreciate a 90-day minimum on a
regulation to clarify. We have rainfalls in Wyoming that will
start the runoff, and sometimes that coincides with snowpack, a
true intermittent. So it would change and clarify the rule so
we would know. We are not lawyers; we are farmers.
Senator Ernst. Right. Right. Do you think there would be
challenges with trying to enforce the regulation as it is
proposed right now, because folks don't know necessarily what
the definition is?
Mr. Fornstrom. Yes. The idea that not knowing what the rule
actually is makes it hard to actually follow the rule. We want
to follow the law. That is what we want to do.
Senator Ernst. Exactly. No, I appreciate that very much.
I do have some time remaining, Chairman. I will yield back.
Thank you very much.
Senator Barrasso. Thank you so much, Senator Ernst.
Senator Carper.
Senator Carper. Again, our thanks to each of you.
Todd, I think the Chairman mentioned and you mentioned your
son is at West Point, is that right? What year?
Mr. Fornstrom. Yes, he is.
Senator Carper. What year?
Mr. Fornstrom. He just finished his plebe year.
Senator Carper. Oh, that is great. How is he doing?
Mr. Fornstrom. He is doing well.
Senator Carper. One of the joys of my life is nominating
people to attend the military, our service academies, including
West Point. I am a retired Navy captain. We have great service
academies.
Yesterday, our congressional delegation from Delaware, all
three of us, hosted a reception at the Capitol for our nominees
who have been admitted to West Point, to the Naval Academy, Air
Force Academy, and Merchant Marine Academy; and their parents
came as well, grandparents. It was a big family event. We are
close to Delaware, so a lot of people can come, and made a day
of it.
I said to the folks, as they were gathered yesterday, that
these young people who are going to our service academies are
so impressive, just so impressive. I told them all that they
had picked the right parents. Usually, when kids turn out that
well, it is because their parents had something to do with it,
so thanks to you and your wife for raising your son to that
commitment to service. Navy salutes Army.
Mr. Fornstrom. Thank you.
Senator Carper. You bet.
A question, if I could, for you, Mr. Fornstrom, and also
for Mr. Goehring. As you know, may farms have streams running
through them, and I am sure that yours do, too. I would ask you
to put yourself in the shoes of a farm located downstream of a
metal plating company at which the ephemeral stream next to the
plant was no longer a water of the U.S. under the proposed
Trump WOTUS definition. Direct discharge of heavy metals and
PFAS chemicals would now be permissible into that stream, which
would flow into the farm with the snow melt and after heavy
rainstorms.
Here is my question: Do you think that most farmers have an
alternative to using the water on their property if the water
quality was so bad they could not use it to water livestock or
irrigate crops? And do you think that solution is easier or
more complicated and expensive than requiring those discharges
to be permitted and thus controlled? Please. Two-part question.
Mr. Fornstrom. Thank you. You may have to remind me of all
the parts.
[Laughter.]
Senator Carper. I will restate the first question. Do you
think most farmers have an alternative to using the water on
their property if the water quality was so bad they could not
use it to water livestock or irrigate crops? That was the first
part.
Mr. Fornstrom. Thank you. First of all, that is the
assumption that the State is not regulating that water, rather
than WOTUS. In Wyoming, the State would most likely be all over
whatever regulation you wanted. I am actually regulated by the
State, not WOTUS. Water is very important to farmers, so they
would do what they can with what they have, and that is what
they always do.
Senator Carper. Second half of my question is do you think
that solution is easier or more complicated and expensive than
requiring those discharges to be permitted and thus controlled?
Mr. Fornstrom. I wouldn't be able to answer that.
Senator Carper. That is fine. That is fine.
Mr. Fornstrom. I apologize.
Senator Carper. Mr. Goehring, would you take a shot at
those two questions, please?
Mr. Goehring. Yes. Thank you, Senator Carper. First of all,
probably the two things on the table would be the Clean Water
Act and traditional navigable waters definition and how we get
there. The Clean Water Act is the law of the land; it has to be
adhered to. There is a difference between the State, who
understands their resources, understands the system, and their
ability to regulate and oversee that, versus the Federal
Government. As a regulator myself, and a farmer, I get those
challenges, and I understand the resources. In the situation
where all States have to monitor and have to adhere to the
Clean Water Act, they would be out there doing something with
respect to anything that is coming into that system and into
that watershed, just as we would do. I would suspect that they
would either start to mitigate, but they would probably prevent
any livestock from actually using that water until they find a
way in which to address the issue.
With respect to how that is going to happen, I couldn't
tell you because I don't have intimate knowledge of what that
may look like, but I know in my State how we would manage it.
Senator Carper. Thanks.
Mr. Goehring. And I am sorry, Senator Carper, about the
second question?
Senator Carper. That is OK. I need to go to Mr. Elias, if I
could.
The Trump administration claims it cannot estimate the
extent of water bodies that its proposal would exclude and
therefore cannot estimate the increased harm to waterways or
the economic impact on recreation, on drinking water, treatment
costs, on flooding damage, public health, and other things. My
question of you, Mr. Elias, is as a county official, do you
think it is responsible leadership to make decisions without
any meaningful idea about what the effects of those decisions
could be or would be?
Mr. Elias. As a county official, I think that would be a
very bad decision to make. The complex system of tributaries
and waterways in southern Arizona and the arid desert Southwest
makes water go all over the place underground in our aquifers.
In January, the Air Force Base, Davis-Monthan Air Force
Base there in Pima County, was found that they had released
some PFAs into the stormwater drains. Those toxins ended up in
a small community named Marana 30 miles away. Without knowing
how they got there, without knowing which waterways they
entered, it becomes impossible to do that, so protecting small
ditches, protecting arroyos, protecting the small tributaries
is critical for us, too. Those discharges, just this past week,
of the same material at the Air National Guard, same situation;
we don't know where those PFAs are going to end up. So, in my
mind, in my area, in my homeland, that is a very dangerous
precedent to set.
Senator Carper. I understand.
What I would just say in closing is for us to keep in mind,
Mr. Goehring and Mr. Fornstrom, keep in mind the many States
that cannot regulate waters more stringently than the EPA does.
As you know, there are a number of States that cannot.
All right, thanks very much.
Senator Barrasso. Thank you, Senator Carper.
I would like to introduce into the record a letter received
from the Pima Natural Resource Conservation District. They
commented in support of the proposed 2019 WOTUS rule.
The Conservation District has stated that it supports the
current proposed WOTUS rule because it restores property rights
to private landowners and to the Arizona State Lands
Department, and it provides those parties necessary regulatory
relief from Federal Government overreach without sacrificing
protection of genuinely navigable waters.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Senator Cramer.
Senator Carper. Before we do, Mr. Chairman, could I just
also ask unanimous consent to submit a letter from the
Backcountry Hunters and Anglers that emphasizes that
eliminating protection for 18 percent of America's streams and
half of our remaining wetlands threatens big game in the
Southwest in trout and salmon that need cold, clean waters, and
the supporting heritage dependent on those and many other
species and habitats threatened by the Trump WOTUS rule? I ask
unanimous consent.
Senator Barrasso. Without objection, both will be
introduced.
[The referenced information follows:]
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Senator Barrasso. Senator Inhofe, we will turn to you.
Senator Inhofe. Thank you, Mr. Chairman. First of all, I
appreciate this hearing probably more than anybody else does,
since I chaired this Committee during the last Administration.
I have been listening very carefully, and I have to tell
you, as I said in a comment earlier, that this issue was not
just one issue to our farmers and ranchers in Oklahoma; it was
the issue. It is No. 1. I know that Mr. Fornstrom, you are with
the American Farm Bureau, so I am sure you hear this from a lot
of the others that are out there.
Real quickly, Mr. Fornstrom, the rule that we have, the
Obama era WOTUS rule is not currently in effect in your State
of Wyoming, but it is in my State of Oklahoma. Now, you
broadly, in your opening statement, talked about some of the
costs. Would you specifically talk about some of the costs
associated with your situation as opposed to our situation or
what we are going to have to be subjected to that you now are
not because you are not under this regulation? What are the
similar things that States would suffer from under the previous
Administration's record? The costs.
Mr. Fornstrom. The costs to the producer? The costs of
consultants can be in the thousands, if not in the hundreds of
thousands. That is not an excuse to have dirty water. We, as
farmers, don't want dirty water. We are happy to do it, but if
the cost is more than what we will get out of it, it is a
business decision, and they will quit doing it if that is what
it comes down to.
Senator Inhofe. Well, you know, there is this assumption
that people who own the property are not going to be the best
stewards of the property. We had an interesting experience with
one of the people from the previous Administration coming out.
In fact, I made this a requirement before his confirmation, to
come out to Oklahoma on the Partnership program. You are both
familiar with that Partnership program. And they came back with
glowing reports that, yes, in fact, those property owners in my
State of Oklahoma, and I suspect all around the country, are
very much the most concerned people about their own properties;
that is not just unique to Oklahoma.
Now, there is this assumption that liberals generally have,
is that States are really not competent to get these things
done and that they have to rely on the wisdom of the Federal
Government to get it done. I would like to ask you,
Commissioner Goehring, some of the things that the States are
doing right now that we may not be aware of, that are actually
being done, in your opinion, better than the Federal
Government.
Mr. Goehring. Senator Inhofe, it is interesting that you
would ask that because I am confused about all this discussion
about the whole definition and reworking everything, revamping,
trying to take control of large tracts of land where there are
no rivers or no streams, and only ditches, and other problems,
isolated water features.
States have a responsibility under the Clean Water Act.
They have primacy. They have a cooperators agreement with EPA.
They have to maintain and respect the law of the land, which is
the Clean Water Act. So, to disregard it or say that States
can't be any more strict because their legislators won't allow
it, it is irrelevant. You still have to maintain the law of the
land. You still have to regulate; you still have to implement.
And if the Federal Government has control of it, it doesn't
mean that it is going to be any better regulated. In fact, you
might be missing unique opportunities in which you are going to
be addressing the unique situation of the watershed itself, and
that is where the State has the intimate knowledge to go in and
do the testing to mitigate issues, to have control without
requiring a farmer or a rancher to go get a permit, to pay for
a permit, to pay for a consultant to make sure that they are
not doing something because it is perceived that way. The
reality is the State is still there monitoring, regulating, and
they understand the resource better.
Senator Inhofe. That is an excellent statement. Let's stop
and look at what has happened since 1972. We have been very
successful in the system that we have used and giving the
States the powers of that regulation. Excellent response. Thank
you.
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 being here today.
I am afraid that the proposed Trump administration rule is
really going to guarantee a lot more litigation in an area that
has already been heavily litigated. I think all of you know the
history of interpreting the waters of the United States, back
and forth to the Supreme Court.
In the Rapanos case, Rapanos v. United States, you had a
split decision; you had Justice Scalia joined by four Justices
with a kind of narrow interpretation. Justice Kennedy, the
fifth vote, making up the majority in that case, said that the
intent behind the congressionally passed Clean Water Act
included waters with a ``significant nexus test.''
I think what we are going to see now, unfortunately, is
this is going to be tied up in the courts. So, it would have
been much better, in my view, if the Administration had been
more protective than the current rules proposed, because the
U.S. Geological Society has estimated that this rule is going
to remove Federal protections for 18 percent of stream and
river miles and 51 percent of wetlands.
Now, I represent the State of Maryland. We are in the
Chesapeake Bay area. Six States have their waters flowing into
the Chesapeake Bay, plus the District of Columbia. So it is
easy to say that one State or another is going to pass their
own State laws to protect their waters, but when their waters
are impacting people in another State, I can tell you that
there is not as much focus on the need to do that, and that is
exactly why we have a Federal Clean Water Act, and that is why
we are so worried in Maryland about the impact of this law. Our
Governor, who happens to be a Republican Governor, and his head
of the Maryland Department of Environment have expressed grave
concerns over the impact that these new proposals will have on
the Chesapeake Bay and the Chesapeake Bay watershed.
Mr. Elias, if you could just elaborate a little bit more on
the point you made, which is that waters that are intermittent
from time to time, by definition, that they in fact can have a
very damaging and harmful impact on waters downstream if you
get pollution into one of those water bodies, what impact it
has downstream; and the issue of the wetlands. We have a lot of
non-tidal wetlands in the Chesapeake Bay area, so there are
times that there is no water there; but then there are times
when they are filled with water, and they act as a filtration
system for the Chesapeake Bay, they are like the lungs of the
Bay. And if you essentially say that that is not covered
anymore, you are going to expose the Bay to a lot of harm.
Now, I keep hearing the argument that States are going to
backfill, but the reality is today on the books you have, as
Mr. Elias pointed out, two-thirds of States, including Arizona,
have State laws that prohibit the States from going any farther
than the Federal Clean Water Act does.
Now, you can say when we scale this back, these States are
going to change their laws to be more protective, but there is
no guarantee of that, and there is certainly no guarantee that
a State that is up-water, upstream, for example in the Bay, is
going to do that.
Mr. Elias, if you could just comment further on what you
foresee as the harm that could be done to these sort of
downstream, down-water areas, and the notion that we all know,
which is that a lot of water does travel, as you pointed out,
underground, and the question is who is responsible when that
water is contaminated, or who is responsible when that water is
eliminated because somebody happens to fill up a wetland.
Mr. Elias. Thank you, Senator. I understand the unique
situation in Maryland, and it mirrors Arizona in an odd sort of
way. We certainly don't have as big a body of water as the
Chesapeake Bay anywhere within the borders of Arizona, but what
we have is a complex set of aquifers that are fed by the
ephemeral rivers and streams that exist in Arizona and in
Mexico. So, we had some shared infrastructure issues, similar
to Maryland, and in fact, the aquifer that serves Pima County
and Tucson stretches from more or less from Imuris in Sonora
all the way to Casa Grande in Arizona. That is a distance of
probably 150 miles as the crow flies, so this is a huge aquifer
that serves many, many, many people with critical groundwater
supplies.
The history of Arizona in terms of providing protection to
these rivers and streams that seem to be dry all the time, or
at least since the 20th century they have been dry, it doesn't
bode well for us in southern Arizona and protecting the people
who already have experienced, like I said, a terrible history
related to all of this, so there is a specter of fear. There is
also a specter of misunderstanding from the State. Arizona is a
place of great differences geographically and geologically. The
northern half of the State is very green and very mountainous;
the southern half of the State, where I am from, resembles my
skin; it is somewhat dry.
So, what I would say is it is a complex set of issues that
shared infrastructure creates, and when we talk about an
aquifer that is shared by a huge expanse of space in southern
Arizona, all those minor tributaries become critical,
especially in a place where we have significant mining and
mineral exploration activities. That has been the source of
many discharges in our region for the last 200 years
especially.
Senator Barrasso. Thank you.
Senator Carper.
Senator Carper. A couple of additional unanimous consent
requests.
By the way, Senator Inhofe, I thought your point was very
well taken. Thank you.
Mr. Chairman, I ask unanimous consent to submit a letter
from Southern Environment Law Center into the hearing record
demonstrating the dramatic effect the Trump WOTUS rollback will
have on drinking water sources for well over half of the people
living in Alabama, Georgia, North Carolina, South Carolina,
Tennessee, and Virginia.
I would also ask unanimous consent to submit a letter from
Earthjustice into the hearing record demonstrating the
disproportionate impact the Trump rule would have on already
disenfranchised communities across our country.
Two unanimous consent requests, please.
Senator Barrasso. Without objection.
Senator Carper. Thanks so much.
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Senator Barrasso. Chairman Cramer.
Senator Cramer. Thank you, Mr. Chairman.
Mr. Elias, I appreciated your illustration about the dry
skin. It reminded me, coming from the semi-arid climate of
North Dakota to Washington, DC, the one thing my wife often
says in the summer is that this climate is good for your skin,
but it is bad for your hair.
[Laughter.]
Senator Cramer. So, we are adjusting.
There is another saying of mine that comes to mind as I
listened to several of my colleagues ask questions, and that is
I am fond of saying, Commissioner Goehring, to the Federal
Government, please don't impose your mediocrity on our
excellence. We are forever trying to dumb down to be more like
the Federal Government, and I don't know why we would ever want
to do that.
I want to ask you, Commissioner Goehring, a very simple and
direct question regarding the pending litigation. Again, there
is this other issue of the environmental discussion, but there
is a legal issue here that we sometimes like to forget about,
and it is the one that North Dakota is leading in Federal
court.
Do you think it is imperative during the stay and during
the rulemaking process that the litigation in North Dakota
continues to go forward?
Mr. Goehring. Chairman Cramer, yes, absolutely.
Senator Cramer. And why?
Mr. Goehring. Because of the patchwork of court decisions
that exist for the multiple States out there. I believe there
are 26 States that have some sort of stay, but it is all
founded on different issues that have been brought forward
within the courts. We need a final rule so that we can operate
with some certainty.
Senator Cramer. So whether that rule come from a final rule
that is upheld or litigation, we need to get to some finality,
and I would agree with you; I hope that that can continue.
With that in mind, and the blocking of the rule in North
Dakota district court nearly 3 years ago, many critics, as we
are hearing today of the new rule, have characterized the 2019
rule as a rollback of water regulations. I think it is
important to remember there is not a rollback of something that
has been deemed illegal. In fact, over the decades the Supreme
Court continually kicks this thing back because it goes too
far, and that is why there hasn't been a rule.
In your role as Commissioner, I know that you sit on lots
of other commissions both in official or voting capacity, as
well as ad hoc, and one of those commissions, of course, is the
North Dakota Water Commission. Given all that we have just been
talking about and the fact that there has been a stay for the
last 3 years, the ultimate conclusion that we draw from some of
our friends on the other side of this debate would be that
those other 25, 26 States, the water quality must just be
horrendous, given that the Obama rule hasn't been in place for
the last 3 years.
Is it your experience as a member of the Water Commission
in North Dakota that North Dakota's water is getting worse as a
result of the rollback of the Obama rule?
Mr. Goehring. Senator Cramer, actually, that is probably
what has been confusing for me in all of this discussion, is,
as I have stated before, the Clean Water Act is in place;
States have to adhere to it. Whether you choose to have more
stringent laws and regulations in place is up to your State,
but you still have to work within the confines of the Clean
Water Act. Whether the Federal Government has it or not isn't
going to mean you have any cleaner water, what it does mean is
how do you mitigate and manage those resources, and that is
really what it is about. And most States, the colleagues I work
with, have a very good understanding of what is in their
watersheds and how to deal with it. In fact, you can work with
EPA to get extra funds to deal with some unique situations in
your State also.
Our water quality has continued to improve in parts of our
watershed, and there are places where we have--because of
topography, because of nature, and because of the geology, some
have impacted waters, and we continue to try to deal with
nature to address those issues. Those are places where
agriculture doesn't even exist, where, quite frankly, it is
more residents and residential properties and lake homes that
have provided more problems and impacts for us.
So I get a bit frustrated at times when we try to help and
bring solutions to the table when sometimes they are pointing
the finger at agriculture. It is not agriculture. In fact, I am
proud of how much farmers and ranchers have contributed to the
success of managing the resource in the United States. Since
1996, USDA, I believe, recorded 100 million tons of topsoil
every year it saved from wind and water erosion because of
conservation practices and systems that have been put in place,
and because of new practices and technology in precision
agriculture we are doing a much better job with managing the
resource and protecting it.
Senator Cramer. Thank you.
Senator Carper. Would my colleague yield to me for just 15
seconds, if you don't mind?
Senator Cramer. Sure.
Senator Carper. I am glad to hear what you are saying about
conservation and how we do good and do well at the same time
through smart conservation practices. I would just have us keep
in mind one of the things that concerns folks on our side, and
maybe some on your side, is that the Clean Water Act will not
apply--will not apply--to waters removed under the Trump WOTUS
rule. Will not apply. That is one of the reasons we are
concerned.
Senator Cramer. I yield back. Thank you.
Senator Barrasso. Senator Braun.
Senator Braun. Thank you, Chairman. For me, this is a dear
subject because I am actively involved in forestry and farming
on the weekends and still manage my tree farm and deal with
about seven or eight different farmers, and I am avid
outdoorsman. I am a member of the Nature Conservancy. So I have
the whole swirl of what we are talking about here.
All I would like to say is that over the last 30 years--I
remember when we couldn't fish out of our local river because,
just like I was worried about it then, something needed to be
done. We now cannot only fish, we can eat the fish out of that
river and feel safe about doing it.
I know what farming practices were like 30, 35 years ago,
and it was before no till. It was before farmers didn't really
realize the value of every grain of dirt on their farm, and now
do, I think, almost anything they can do to make sure to
preserve it. I don't want to backslide.
Then I get home about a month ago and was at one of our
local restaurants and had three different farmers come up to
me. They let me finish my meal and then they wanted to talk
about WOTUS, and I said, well, you know, I know a lot about it.
You know, I have been involved in farming. I knew the three
farmers personally.
What had happened with them, and the question that I am
eventually going to get to is how the current rules, the
variability between States in terms of enforcement, but they,
in the history of the EPA and up until a year ago, never had a
conservation officer run them down over their 160 acres because
they saw them out there doing ditch maintenance in ditches that
generally don't have water in them other than just maybe a
month or 2 out of the year.
And then I found out that it was not the Corps; it was not
the EPA; it was, in our case, IDEM, Indiana Department of
Environmental Management, and the Department of Natural
Resources that were in overdrive even in the context where I
think there is a sense of a little bit of movement back to
where farmers and States are being recognized as having as
vested an interest as the Federal Government or the EPA would
in their own well being and the health of their farms.
I was surprised that after I had that discussion, I
encouraged the State rep and senator to have a few meetings.
Two hundred-fifty farmers showed up from a county that is not
large. That told me that it was important. They felt that it
was the State that was maybe more actively enforcing than what
the Corps of Engineers and the EPA representative figured that
needed to be done. So, they had that whole ball of confusion.
Start with Doug and Todd, if you want to weigh in. Tell me
what is happening in your States. And are we just caught in
this crossfire of people so confused that don't know what the
degree of enforcement ought to be? Comment on that, please.
Mr. Goehring. Senator Braun, you are very much correct in
that farmers and ranchers are confused about who they need to
run to, what permit are they going to have to purchase, and how
are they going to have to address some perceived issue or
potential issue on their farm. States are very aggressive,
maybe not all States, and I am sure they operate at different
levels of activity depending on how much they are intimate with
that resource or issues made about it.
We have done a lot of work in our State to make sure that
where we have drainage ditches that they are maintained
properly, that they have the right amount of slope to them,
that the vegetation exists, and also access to that, because
any surface water coming in, you do need to monitor that. We do
monitor it. Between the Department of Environmental Quality and
the Ag Department in my State, we do monitor surface water for
certain things, and we make sure that we adhere to the Clean
Water Act. Even if it is waters of the State that we are
managing, the Clean Water Act is still applicable.
And if I could address something earlier that Senator Van
Hollen had said, he is absolutely right about the benefits of
wetlands; they do filter, and they do work. That is why, under
Swampbuster, you can't just drain a wetland. And I think we
have to keep everything in mind and think about the holistic
approach that is already in place and the laws that are there.
We just have to be careful that we don't put more burden on
those farmers and ranchers and those that are operating and
managing and producing out there on the land.
Senator Braun. Past my time.
Could Todd come in on that quickly?
Senator Barrasso. Mr. Fornstrom.
Mr. Fornstrom. The thing that always comes to mind when we
talk about regulations like this is the idea that farmers are
trying to do the least amount they can to pass a regulation,
and that is maddening to me. Farmers and ranchers have been
here since the dawn of time in this country, and they will be
here `til the end; and they have to live there, and they work
on that land, and they are there to make money.
They are there to live there. They are going to pass it
down to their grandkids, and they got it from their
grandparents. The idea that they want to pollute and rape and
pillage is crazy. I have no idea where that comes from. If it
has been done in the past, it is in the past. What we have done
now is we improve. The way that we farm now is like you said,
way better than it used to be. Our organic material, our
irrigation maintenance, our GPS driven tractors, they have done
nothing but improve the soils, the land, and the water.
Senator Braun. Thank you very much.
Mr. Fornstrom. Thank you.
Senator Barrasso. Senator Cardin.
Senator Cardin. Let me thank all of our witnesses.
I certainly want to underscore that the success of the
Chesapeake Bay program in our region is because all of the
stakeholders have bought into the responsibilities, including
our farmers. The farmers in Delaware, the farmers in Maryland,
the farmers in Virginia, the farmers in Pennsylvania, New York,
West Virginia all understand the importance of clean water, and
they are part of the process that we use in order to determine
the responsibilities for clean water.
So I agree with--they want to do the right thing, but let's
be also clear that the largest source of pollution going into
the Chesapeake Bay is from farming operations. The largest
increase in pollution is coming from runoff, but the largest
single source is still from farming, so it is an issue.
And in regards to the importance of wetland--and I know
that Senator Van Hollen talked about that--but recognize it is
the intermediate and ephemeral waterways that are critically
important to the preservation of wetlands. So, if we are not
regulating waters that end up into the navigable waters of
America, we are in danger of losing our wetlands, and that is
very true with the definitions that have been debated here and
what the experts tell me would be the result of what this
Administration is suggesting as the definition of waters of the
U.S.
Now, the courts caused this issue more so than Congress, in
my view. We have been in a state of confusion since the Supreme
Court decisions and Federal court decisions, and there have
been efforts made to try to get us back to where we were prior
to the court decisions. There has been disagreement about that.
One thing is clear that I think everyone can agree upon:
there is confusion that needs to be clarified. The lack of
certainty is the worst situation for someone to be in, to know
whether they can do something or can't do something. So we
really have to figure out a way to get together and get a rule
that makes sense. But I would urge us to recognize that the
waters that we are talking about that are not the direct
waters, but lead into the navigable waters, are critically
important for clean water; they are critically important for
our farmers; they are critically important for public health
and drinking water, et cetera.
So, to just say that these are potholes, or we are trying
to regulate that, I don't think advances the debate, so I would
just urge us to recognize that we have to find a common sense
way to deal with this, and to me, I am very much influenced by
what the scientists tell us, what the experts tell us. We have
a great model in the Chesapeake Bay program. It really has the
confidence of all stakeholders, and I would urge that model be
used as a way of trying to get us all together on this
particular issue.
So, Mr. Chairman, I have been following this hearing. I
appreciate the fact that we have a hearing, because I think it
is important for this Committee to be actively engaged. I do
recognize that all three branches of Government have weighed in
on waters of the U.S., and that is part of the problem, but it
is up to the Congress to make the final judgments here, and I
would hope that we could perhaps use this Congress where we
have a House controlled by Democrats, the Senate controlled by
Republicans, as a way of listening to each other and coming up
with the right solution. I don't believe the rule suggested by
the President is going to be the right answer, and I would urge
us to take a more active role.
Senator Barrasso. Thank you, Senator Cardin.
Senator Boozman.
Senator Boozman. Thank you, Mr. Chairman.
I also would like to talk a little bit about agriculture.
The Obama administration's EPA stated their Waters of the U.S.,
the WOTUS rule, circumvented agriculture, claiming farmers and
ranchers were protected from regulation by exempting them from
404 permits under 404(f) of the Clean Water Act. In truth, the
permitting exemption for ordinary farming and ranching
activities was meaningless.
Farmers were told that they would not be subject to the
WOTUS rule unless they were performing a new farming activity;
any continued farming would be exempted. However, Senate report
conducted by this Committee found examples proving that this is
not the case.
In 2015, the U.S. Army Corps of Engineers told a landowner
that changing the use of a field from growing alfalfa to
orchards would constitute a land use change that would allow
Corps regulators to pursue enforcement actions if plowing the
field to plant trees involved a discharge to wetlands.
The Corps regulator informed the landowner that despite an
extensive farming history, orchards were never planted on the
ranch, so they are not the same kind of farming and might not
be considered a normal farming activity.
According to testimony presented to the EPW Committee, the
5-year western drought has forced some farmers to shift their
operations from one agriculture commodity to another. However,
according to the Corps, planting a different commodity crop is
a change in use that eliminates the ordinary farming
exemptions.
So these get into all of this stuff. And I agree with
Senator Cardin; we have to come up with a common sense
approach. But what we are dealing with now, you can imagine the
frustration, and you know the frustration that farmers are
feeling, Mr. Goehring, as they go through these processes
dealing with the bureaucracy.
I guess the question is, Mr. Goehring, knowing what we know
now, do you believe the Obama administration's WOTUS rule was
good for agriculture?
Mr. Goehring. Senator Boozman, I had a great deal of
concerns, and that is why I was very supportive of when we
filed a lawsuit and asked for an injunction, a stay. The same
things that you referred to were the same conversations we had
with EPA about what constitutes a change in agricultural
practices and what happens when we change crops. You are
exactly right, everybody said we are going to deal with this
case by case. The problem is you never had a consistent answer
depending on who you talked to.
And if a producer all of a sudden wanted to go from raising
sunflowers and row crops to cereal grains, or that was part of
their rotation, or all of a sudden they put alfalfa in the mix
because we do that for soil health, or pulse crops, the problem
was it was perceived as a different farming practice, so all of
a sudden it could be detrimental or perceived detrimental, and
it was going to be harmful for those agriculture producers. A
normal common practice would have constituted a permit or
permission to actually farm and ranch in a responsible manner.
Senator Boozman. And you would have cases that the
rotation, as was done, because farmers do want to take care of
their soil, not being allowed to do that or the bureaucracy
involved in doing such, you would actually hurt the soil if you
didn't do it. Would that be correct?
Mr. Goehring. That is absolutely correct. Even the
incorporation of cover crops could be perceived as a different
farming practice because you aren't managing them the same way
that you would have managed a cereal grain or a row crop.
Senator Boozman. It is sad that you get into all these
Catch-22 situations, and the poor farmer is doing his best and
trying to operate under the rules. And again, nobody cares more
about--because it is their living--taking care of the soil and
doing the best that they can to prevent things that
disadvantage the quality of water. So thank you very much.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Boozman.
Senator Merkley.
Senator Merkley. Thank you very much.
Oregon is an agricultural State that has a huge diversity
of what it grows; dryland wheat to every possible crop, the
Willamette Valley to orchards. I go around the State, and I do
a townhall in every county every year; so we have 36 counties,
the vast majority of which are agricultural counties, and
during this conversation about WOTUS the question I asked was
does anyone have a specific example of where they have been
impacted in a negative way by the existing rules. So far, the
answer has been zero.
So I found the whole conversation, the emotional intensity
of it, very interesting because no one in Oregon could point to
a single obstruction. And that led to a conversation about all
the exemptions that are in the existing law; upland soil and
water conservation practices, agricultural stormwater
discharges exemption, return flows from irrigated agricultural
exemption, construction and maintenance of farm or stock ponds
or irrigation ditches, management of drainage ditches,
construction or maintenance of farm, forests, and temporary
mining roads.
My farmers said, you know, we are worried; we are being
told by the national that we have something to fear because
somehow something might happen to us, but not one example over
these years of this conversation. So, it is an interesting
insight on perhaps how there has been a determination to
elaborate on a set of fears in kind of a political context,
fears that certainly in my State, with an incredible diversity
of both irrigated and non-irrigated land, haven't manifested
themselves.
So I just wanted to make that point and continue to extend
the invitation to all of my farmers, because it has been years
now that I have been extending this invitation to point to an
actual challenge that they have encountered.
Now, we change crops all the time in Oregon. Our Willamette
Valley, you can grow anything. We grow flowers for export; we
grow grass seed. We grow everything you can imagine. We have
the largest production of hazelnuts, we have pears, we have
apples, we have cherries. We grow it all. People swap crops all
the time, and that is why I find the conversation that was just
held quite interesting, because not a single example of an
actual hurdle reached.
So, I am just going to conclude by saying that invitation
still exists, because it is one thing to have actual obstacles,
and then we can have a conversation about those actual
obstacles. It is another to have a highly politicized debate
that completely kind of misrepresents the real challenges in
the agricultural world, and I fear that is where we have ended
up, kind of a polarization that is so common in some many
issues that we wrestle with. We need more problem solving; we
need less polarization.
The people of Oregon care profoundly about the quality of
their water. We have an incredible system of wetlands and
streams and lakes. They care a lot about what comes into
their--our water largely comes from surface water, our drinking
water, so people really care about the quality of the water.
But we don't have some big battle going on of the nature that
is being suggested in this dialogue, in this conversation. We
don't find any incompatibility between clean water for drinking
or the health of our streams. We value our salmon; we value our
fish, so I think Oregon is a case model in how you can have
both good agricultural, strong agricultural practices and you
can have very high water quality standards, so maybe I would
invite anybody who wants to follow up with problems they are
experiencing in their State to come join us for a conversation
in Oregon.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much.
Senator Capito.
Senator Capito. Thank you, Mr. Chairman.
Thank all of you for being here.
Before I begin, we have talked a lot about agriculture, but
the WOTUS rule has had effect in other different arenas that I
want to get into a little bit later, but one is I would like to
ask unanimous consent to add to the record a letter on behalf
of the West Virginia Golf Course Superintendents Association
supporting a redefinition and clarification of this.
Senator Barrasso. Without objection.
Senator Capito. Thank you very much.
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Senator Capito. That might help my golf game, although I
doubt it. Yes, good luck with that.
Commissioner Goehring, I know that this may not be in your
bailiwick, but North Dakota and West Virginia have energy
production. Certainly, you have the Bakken and we have
Marcellus and Utica plays, and we are very excited about the
energy production. I am just wondering, with the rapid
acceleration of the discoveries there, much like what we have
in our area, in the Marcellus Shale arena, what kind of impacts
this WOTUS rule has on the energy production and the ability to
continue the full exploration of our resources.
Mr. Goehring. Senator Capito, thank you. Actually, part of
this is in my portfolio.
Senator Capito. Well, good.
Mr. Goehring. I have oil and gas production through the
Industrial Commission that I serve on, so I am very well aware
of energy in our State, both coal and oil and gas.
We have had concerns, or I should say the industry, energy
industry has had concerns as to what does this mean with
respect to how they access water, how they manage water, and
how they will treat water, and they have actually expressed
more concern making sure that the farmers and the ranchers in
the area and the watershed itself is being managed properly and
has proper oversight, because they fall under the jurisdiction
of the Department of DEQ in our State and under the Industrial
Commission or the Department of Mineral Resources. So, we have
played that role of providing that oversight and that
regulatory oversight and making sure that they manage properly.
They haven't expressed a whole lot on WOTUS, knowing that
they already answer to us when we regulate them, and it is our
job to make sure that we adhere to the Federal law and to the
State laws that exist. So I haven't heard a whole lot of
comments back from the energy industry on this issue other than
they are concerned with how it is being managed throughout the
entire watershed.
Senator Capito. OK, thank you.
The original Obama rule was called the Clean Water Rule,
and this is being touted as President Trump rolling back the
Clean Water Rule. Sounds terrible, doesn't it? So, I think if
we talk about the politicization of where we are going here, I
think we need to keep in mind that our goals are all basically
the same; it is just how are we going to get there.
So, I am a bit confused on the wetlands conversation
because I heard--Senator Cardin and I share the Chesapeake Bay
watershed issues from a different perspective, being at the
headwaters in West Virginia. He expressed concerns that
wetlands would be influenced, disrupted, be able to be
dismantled, et cetera, under this new rule. You said--just half
an hour ago, probably 20 minutes ago--that this is a great
filter for clean water and that it is a very protected region.
How do I square those two comments?
Mr. Goehring. Well, I think that is interesting because it
goes back to a State managing their own resources. Wetlands may
appear different in different areas. For example, if you have
an ephemeral stream that may be feeding a wetland, it may be a
closed basin. It serves in the same way, in the same manner of
filtering water that then ends up into subsurface water
systems.
But when you are talking about--and I will use North Dakota
because I know that a whole lot better. We have a lot of these
shallow water depressions that exist from glacial activity, and
it is through rain events or maybe even heavy snowfall during
the winter, and it is a concentration of those waters that can
be miles away from any intermediate stream or within the
watershed it would be so difficult because there is no surface
connection, which I find, at least in this new proposed rule,
in the 2019 proposed rule, they talk about the intermittent
streams as having seasonal flow, and that would be
jurisdictional.
And I get that, and I haven't heard very many people
actually argue on that, because it could be runoff from the
mountains. But at least on some of the ditches and the
ephemeral streams, if it is just a rain event, 6-inch rain
event in the area, that would not be.
Now, that brings a lot of comfort and peace to a lot of
agriculture producers because now they understand what is going
to constitute or at least there is some predictability as to
what is going to be considered jurisdictional.
Senator Capito. Right, and that goes back to also the point
that I think Senator Cardin made quite well, the uncertainty.
And then when we look at what States is this working for,
well, the vast majority of the States it is not even in effect,
so you can't say that just because it is working in certain
States, whatever the type of agriculture they might have or
interactions, the remaining States--as you made a great point,
we are all created different here, so it is going to have
different impacts in different areas.
Thank you very much.
Senator Barrasso. Thank you very much, Senator Capito.
Mr. Fornstrom, Section 404(f) of the Clean Water Act
clearly states that farmers and ranchers should not need
permits from the Corps for normal farming, for cultivating
forestries, and for ranching activities. Should not need a
permit. In the past, I believe the Corps has incorrectly
interpreted the provision; the Corps has demanded that farmers
and ranchers obtain permits under the Clean Water Act.
Beyond a new WOTUS rule, is more clarification needed to
address this issue?
Mr. Fornstrom. Thank you, Senator. Definitely more clear
lines of knowing whether we are talking about ephemerals or
whether we are talking about navigable water. All of those are
necessary so farmers and ranchers can tell what they are
dealing with. The Corps has misinterpreted some things, and I
really wanted to challenge Senator Merkley and give him his
first example, because in California we do have an example of
it, of a crop change where a certain individual was fined in
the millions, until they figured out that the CRP that it had
been in for two terms, was farmed before and it was a
misinterpretation by the Corps.
With that, it brings me to the idea that dealing with the
Federal Government isn't like dealing with the States and isn't
like dealing with the locals. Dealing with the Federal
Government is intimidating, one; and for two, they don't
understand the area like the local people do, like the States
do, and understand the prairie potholes in North Dakota that I
have never heard of.
There is a lot of clarification that would be very helpful.
Senator Barrasso. Well, we will make sure that Senator
Merkley is aware of the example that you brought, and if you
have others, we will make them also a part of the record. So I
would ask anyone who has that information to get it to us, and
we will include that as part of the permanent record of this
hearing.
Mr. Fornstrom. Thank you.
Senator Barrasso. Thanks for that.
Commissioner Goehring, in the Clean Water Act, Congress
clearly stated its intent. It says to recognize, preserve, and
protect the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution, and to plan the
development and use of land and water resources.
Do you believe the new proposed WOTUS definition more
faithfully implements this Clean Water Act and preserves
States' primary authority over land and water?
Mr. Goehring. Senator Barrasso, I absolutely believe so.
Simply stated, because it puts the accountability back where it
needs to be. If we understand the resource, we already have the
responsibility, we have primacy, and we have the cooperators'
agreement with EPA. They hold us accountable for making sure
that it is implemented and implemented properly.
Senator Barrasso. Mr. Fornstrom, as you know, under
previous versions of the Waters of the U.S. Rule, landowners
have been forced to hire expensive consultants--you raised that
in your statements--in order to determine if their land was
jurisdictionally under the Clean Water Act, because you just
can't tell how people are going to rule. Do you think it is
fair for our farmers and ranchers to bear that level of
regulatory burden?
Mr. Fornstrom. I think our Constitution tells us that we
should be able to read things simply and be able to tell for
ourselves what we do and don't do.
Senator Barrasso. You mentioned that you have a personal
interest in protecting the water on your property. We heard
about your son, who has now finished his first year at West
Point. We heard about your family, the work that you do with
your father, your brother. Can you please talk about just the
everyday practices that farmers and ranchers use to responsibly
manage the water on their land?
Mr. Fornstrom. I would start with, whether it be
conservation tillage, minimum till, no till, all of those
things are utilized in different ways and different farms. We
use low pressure water systems to save water, to help
infiltration rates reduce. We use GPS. There are a lot of
things that farmers do that not only helps their bottom line,
but it is good for the soil, and what is good for the soil is
good for the farmer.
Senator Barrasso. Commissioner Goehring, anything you would
like to add to that?
Mr. Goehring. I think it has been well said.
Senator Barrasso. Thank you.
Senator Carper.
Senator Carper. A couple more unanimous consent requests,
Mr. Chairman, if I could. The first, I would ask unanimous
consent to submit comments and an opinion piece from former
members of the EPA Science Advisory Panel that reviewed the
science report in the 2015 Clean Water Rule and find that the
proposed Trump rule ignores or misrepresents the results of
over 1,200 studies that form the foundation for that WOTUS
rule. I ask unanimous consent.
Senator Barrasso. Without objection.
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Senator Carper. And the second unanimous consent, if I
could, I would ask unanimous consent to submit a special
scientific report in the Fisheries journal that confirms the
critical role of headwater streams in sustaining fisheries and
ecosystem functions.
Senator Barrasso. Without objection.
Senator Carper. Thank you.
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Senator Carper. One of the things I like to do in the
hearings that we have that have a diverse panel is to see where
there is some consensus, where we agree. Not so much where we
disagree, but where we agree. I think we all agree we want
clean water. We want clean water. We want our families to drink
clean water. Whether we happen to be in an urban area, suburban
area, or rural area, I think we all agree on that. We want to
use some common sense. We always want to use some common sense.
We want to encourage sound conservation practices.
We have great examples of farms in Delaware where years ago
people started adopting conservation practices and their fellow
farmers almost laughed at them. But when those conservation
projects turned out to provide the enriched soil and just a
better environment in which to grow crops, they are not
laughing anymore; they are embracing those practices
themselves.
I think we want to provide greater certainty and
predictability. My understanding is when the Obama
administration worked on the Waters of the U.S. rule, their
goal was to provide clarity and certainty.
I remember hosting a town hall meeting not in a building in
southern Delaware, but on a farm. We had farmers, and we had
people who came, who helped actually draft pieces of the rule
that has been questioned by a number of States and at least a
couple of courts.
But I think we all want greater clarity in this regard, and
there is a strong effort by the people who crafted the rule
that is under fire to provide that kind of clarity. I think we
do want that clarity, and the question is do we get the clarity
that is wanted and needed under that rule or the proposed rule
that is before us from this Administration. Those are some of
the areas where we might agree, instead of just disagreeing.
I do have a question, and we will start with Mr. Elias. Do
you want to dispute, do you want to refute what I just said
earlier about areas of agreement, or maybe a couple others that
you think that are worth noting? Where do we agree?
Mr. Elias. Could you repeat that? I am sorry, I am a little
hard of hearing, and I didn't quite catch that.
Senator Carper. It was a long question. I ran through about
five or six examples of where I think we are in agreement, and
I wanted to ask you do you agree with that. Do I have the right
points, or are there some others that I should have mentioned
as well?
Mr. Elias. I think you are right, there is a lot of common
ground, and I think we all want to recognize that a proper
regulation would take a look at those ephemeral streams and
those waterways that seemingly----
Senator Carper. Most people who might be listening or
watching this will hear the word ephemeral and not have any
idea what we are talking about. It is in my statements and so
forth. My understanding of ephemeral means there would be a
stream that flows maybe only when we have snowmelts or when we
have really heavy rainstorms. Is that a fair description?
Mr. Elias. Yes, that is a fair definition. Typically, when
a big event happens, then those waterways are filled with water
and are actually recognized as traditional navigable waterways
before the Clean Water Rule of 2015 and since then, again. That
was an issue that was contemplated in 1972, when the Clean
Water Act was first passed, rivers and streams that run when
there are big events.
So, yes, I think we recognize that they need to be
protected. I think the question is how and who, and to what
level. And I think the thing that is important for us to
recognize for somebody like me, who comes from the arid
Southwest, is the history that we have of people and
communities that have had their faith damaged by discharges
into those types of streams and rivers.
So we need to have some kind of clarity that we are going
to be offered the same protections that everyone in the United
States is going to be offered as well, and I think that is a
good common ground that we all share, because we all don't want
to face the kind of things that have happened in the district I
represent. I can assure you that it is not a wonderful thing. I
hate to bring the subject up today, but I would be severely
remiss if we didn't because it is a common ground we share.
Everybody this morning has said we want clean water. The
question is, how do we go about getting that, and to what level
are we willing to protect areas that seem to be dry and not
active, when the truth is a really complicated set of science
behind it.
Senator Carper. Thank you.
Mr. Fornstrom, same issue, if you would, please.
Mr. Fornstrom. Of course, clean water. You won't sustain
life without it. We, in Wyoming, an arid climate also, have the
same issues. Our issue with the new rule isn't the idea that we
don't want clean water; the idea is that we want to know what
is and what isn't in the rule, simply.
Senator Carper. All right.
Mr. Goehring.
Mr. Goehring. Thank you, Senator Carper. Very much agree,
we need common sense, and I think we really do have consensus
that everybody wants clean water. And I think hearing all those
that are involved and engaged in this conversation is a first
step in the right direction; and second, going back to those
that are owning, operating, and managing that land, and
respecting their opinion and expertise will take us a long way
down that road.
Senator Carper. Thanks.
Mr. Chairman, I want to come back to something I raised
earlier, if the rule proposed by this Administration were
enacted, the question of whether or not waters in a number of
States would lose completely the protection of the Clean Water
Act. That is something that I raised earlier, and it was kind
of left on the table, but I want to come back to that again.
Christophe Tulou, sitting behind me, he used to run the
Department of Natural Resources and Environmental Control for
Delaware when I was Governor, and we worked a lot on ag issues,
as you might imagine. But he gave me a sentence that says the
Clean Water Act will not apply to waters removed under the
Trump WOTUS rule.
Think about that. The Clean Water Act will not apply to
waters removed under the Trump WOTUS rule. If that is true, and
I think it is, that has to be of concern really to all of us.
The other thing, if you have a place where waters are
coming out of springs, and then they may disappear under the
ground for miles, tens of miles, even 100 miles, and then come
back up to the surface again, or maybe we are drawing our
drinking water from those aquifers, what do we do about those?
I used to think if you don't see the water, if you don't
see it going in a river or stream or whatever, then it is not
water, it is not a waterway. Well, as it turns out, there are a
lot of waterways under the ground for miles in my State, and
probably your States, too, that we need to protect.
Anybody want to respond to that?
Mr. Goehring. Senator Carper, maybe that is why I have been
confused in this conversation. You would have to void the Clean
Water Act. It does not matter. The Clean Water Act is the law
of the land, and either the State or the Federal Government is
going to implement it. So when I hear that comment, I am
confused why someone has misinformed or stated that to all of
you, that the Clean Water Act will not be applicable if it is
not on jurisdictional waters, because subsurface and surface
water has to be managed and operated by someone; it is either
the State or the Federal Government.
So the State has a primary responsibility, every State
does, and the Federal Government has the responsibility in
those traditional navigable waters, or at least what I would
say would be the definition that has existed for many years,
for interstate and foreign commerce. Those are the waters that
we have always recognized, and they have the primary
responsibility there.
When we get into any of those tributaries where I would
probably have to say the tributaries still constitute
traditional navigable waters. Then, when we get up into the
rest of the watershed, the State still has the responsibility
for the groundwater and for any of the surface water. So maybe
I am confused, and I apologize for that, but the Clean Water
Act is going to hold someone responsible for that oversight.
Senator Carper. Mr. Chairman, this is something I want us
to drill down on and find out if indeed it is true that the
Clean Water Act will not apply to waters removed under the
Trump WOTUS rule. We need to know that, and we need to know
that with certainty.
Mr. Elias, do you have anything on that?
Mr. Elias. Yes, I would like to add to that.
Senator Carper. Sorry to go on so long.
Mr. Elias. Excuse me?
Senator Carper. I apologized to the Chairman for going on
so long.
Thank you for being patient with us.
Mr. Elias. Thank you. The reality is, once more, that
people who live in Tucson, especially on the west and south
side, as I said earlier, their faith has been shaken, and we
look to the Federal Government for their expertise because our
State does not have a good history in protecting the
environment and protecting the waterways of the State of
Arizona. That is an ugly legacy to discuss, but it is a reality
that we have to face, and I think the fears that people have
are perfectly legitimate.
Senator Carper. Mr. Chairman, I have one last unanimous
consent request, and that is to submit a letter from the
National Congress of American Indians into the hearing record
emphasizing our unique relationships with and our obligation to
Tribal Nations, particularly as it relates to safeguarding
tribal waters and water dependent resources.
Our thanks to each of you for being here today and helping
to inform our conversation and our understanding.
Thank you.
Senator Barrasso. Without objection.
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Senator Carper. I would just say, Mr. Chairman, there is a
lot of agreement here. There is clearly some disagreement, and
we need to try to figure this out. I appreciate this hearing.
Senator Barrasso. Thank you.
Senator Cramer.
Senator Cramer. Thank you, Mr. Chairman.
Thanks to all of you for the irrevocable gift of your time
and your expertise.
I might want to hone in just on something you said, Mr.
Elias, in responding to Senator Carper's question about the
things we agree on, because I think you hit the nail on the
head when you said we agree on these things; the question
remains who is it that we look to for protection. You just
articulated why you feel people at least in your area and your
county are looking to the Federal Government for help given,
evidently, a shortcoming in the State level.
That frightens me because, like I said, there are very few
people in North Dakota that ever look to the Federal Government
for help or expertise on particularly our natural resources.
But we are not all the same; it is 50 different experiences, 51
or 52, depending on who all you include.
Commissioner Goehring, you have talked a couple times, and
quite articulately, about what I think is the real discussion
of the day. In fact, I am intrigued by the letter from the
Congress of American Indians because sovereignty is a desire
for all of us, as States, as Tribes. Sovereignty implying that
we govern ourselves under the larger umbrella. We don't yield
that to the Federal Government. And yet, at the same time, when
there is a shortcoming, then we look to the Federal Government.
The issue of primacy, I want to hone in on that because we
haven't spent a lot of time talking about that. You have tried
to, and I think particularly under Clean Water Act issues, but
there are lots of areas. I was a regulator for 10 years in
North Dakota, overseeing environmental and particularly
environmental regula
[[Page 36]]
tion in the energy area, and one of the portfolios I carried
was the coal portfolio.
So SMCRA laws, which are Surface Mining Control and
Reclamation Act, which oversees the reclamation of mining, was
under my jurisdiction, but it was Federal laws that we
enforced. And that State primacy, that cooperative federalism
model works very well when you have the unique understanding
and intelligence of the local area under the umbrella of
Federal oversight and a relationship with the Federal
Government that is mutually respectful, so, regular audits,
reporting.
I just think this idea that somehow we are going to trust
gun toting Federal agents or the Corps of Engineers, a military
body, basically, or at least under the Department of Defense,
we have had more problems, whether it is Swampbuster--
Swampbuster is better because USDA tends to be more farmer
oriented, but whether it is Swampbuster or WPAs, wildlife
protection areas, under the Fish and Wildlife Service, which is
more concerning to me; gosh, the closer enforcement can be to
the people that you are enforcing, I can't think of many
examples where it would be worse than turning it all over to
the Federal Government.
So, I would like to see us get back to your point. We all
agree on these goals. What is the right mix of enforcement so
that people can have a sense of confidence, clarity, and
frankly, better oversight.
The other thing, one of you brought it up, and I don't
remember which one, but there actually--I think it was maybe
you, Mr. Fornstrom, that brought up the issue of--I call it
perverse incentives, that you can actually have an incentive, a
well intentioned goal that is actually perverted when you are
punished for your good deed, that it costs more money not to
comply than it does to comply, so, consequently, you give up.
I think we have to be very careful about that, too. I like
natural incentives that cause, again, the best enforcement and
really the best management at the closest level.
With that, if anyone wants to comment on that, you are
welcome to for the next minute and 39 seconds, but I just
wanted to make that point and just, again, thank all of you for
your expertise and your concern for this issue, and all of you
for this very good dialogue.
With that, I would either allow anybody to answer or yield
back.
Senator Barrasso. Mr. Fornstrom.
Mr. Fornstrom. I agree, and thank you. One of the biggest
things we want to put forth is the clarity in the rules, and
then knowing who is going to enforce those rules. We prefer the
local. But we would like to know, by looking at it, what it is
and where it is at, and it is that simple. It is not rolling
anything back; it is wanting to know who we are supposed to
find.
Senator Barrasso. Well, I want to thank all of you for
being here.
Senator Cramer has used the word clarity. Mr. Fornstrom,
you used the word clarity. I think you ended your testimony
earlier saying what we all want is clean water and clear rules,
which focuses on the clarity, and that may be the headline
coming out of this meeting today--clean water, clear rules.
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So, thank you all. Now, you subjected yourself to 11
Senators asking questions. Others who had unavoidable
scheduling conflicts may want to put questions in for the
record. We ask that you respond to those, so the hearing record
is going to remain open for 2 more weeks.
But I really want to thank all of you for being here. It
was a tremendous hearing. Thank the members who have also
attended. Obviously, you have 11 Senators that come and ask
questions; a couple of others came and had to leave before they
were able to ask their own questions, but may submit them, but
I think it was, I think, a quite fruitful discussion.
Thank you.
This hearing is adjourned.
[Whereupon, at 12:02 p.m. the Committee was adjourned.]
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