[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

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                                                                   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:]
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    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:]
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    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.

[[Page 37]]

    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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