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88–504 PDF 2015

NEW FEDERAL SCHEMES TO 

SOAK UP WATER AUTHORITY: 

IMPACTS ON STATES, WATER 

USERS, RECREATION AND 

JOBS 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER AND POWER 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

Tuesday, June 24, 2014 

Serial No. 113–78 

Printed for the use of the Committee on Natural Resources 

( 

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

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

PETER A. DEFAZIO, OR, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Markwayne Mullin, OK 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Vance M. McAllister, LA 

Bradley Byrne, AL 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA 

Katherine M. Clark, MA 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Penny Dodge, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

SUBCOMMITTEE ON WATER AND POWER 

TOM McCLINTOCK, CA, Chairman 

GRACE F. NAPOLITANO, CA, Ranking Democratic Member 

Cynthia M. Lummis, WY 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Bradley Byrne, AL 

Doc Hastings, WA, ex officio 

Jim Costa, CA 

Jared Huffman, CA 

Tony Ca ́ rdenas, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Peter A. DeFazio, OR, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Tuesday, June 24, 2014 .............................................................. 1 

Statement of Members: 

DeFazio, Hon. Peter, a Representative in Congress from the State of 

Oregon ............................................................................................................ 5 

Hastings, Hon. Doc, a Representative in Congress from the State of 

Washington .................................................................................................... 4 

LaMalfa, Hon. Doug, a Representative in Congress from the State of 

California ....................................................................................................... 6 

McClintock, Hon. Tom, a Representative in Congress from the State 

of California ................................................................................................... 1 

Napolitano, Hon. Grace F., a Representative in Congress from the State 

of California ................................................................................................... 3 

Smith, Hon. Jason, a Representative in Congress from the State of 

Missouri ......................................................................................................... 7 

Statement of Witnesses: 

Clark, Roger, Director, Engineering and Operations, Associated Electric 

Cooperative, Inc., Springfield, Missouri ...................................................... 41 

Prepared statement of ............................................................................... 43 

Lemley, Andrew, Government Affairs Representative, New Belgium 

Brewing Company, Fort Collins, Colorado .................................................. 28 

Prepared statement of ............................................................................... 29 

Martin, Lawrence, Attorney, Halverson Northwest Law Group, Yakima, 

Washington, representing the National Water Resources Association .... 9 

Prepared statement of ............................................................................... 11 

Parker, Randy, Chief Executive Officer, Utah Farm Bureau Federation, 

Sandy, Utah ................................................................................................... 31 

Prepared statement of ............................................................................... 32 

Tyrrell, Patrick, State Engineer, State of Wyoming, Cheyenne, Wyoming . 23 

Prepared statement of ............................................................................... 24 

Additional Materials Submitted for the Record: 

Bureau of Reclamation, U.S. Department of the Interior, Prepared statement of ........................................................................................................... 73 

Family Farm Alliance, Klamath Falls, Oregon, Dan Keppen, Executive 

Director, Prepared statement of .................................................................. 74 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 86 

Members of Congress, May 1, 2014 letter to Gina McCarthy, EPA and 

John McHugh, Dept. of the Army, submitted for the record by Rep. 

Costa .............................................................................................................. 62 

National Stone, Sand and Gravel Association (NSSGA), Prepared statement of ........................................................................................................... 81 

Portland Cement Association, Cary Cohrs, Chairman of the Board, June 

24, 2014, Letter submitted for the record ................................................... 83 

Trout Unlimited, Arlington, VA, Steve Moyer, Vice President for Government Affairs, June 25, 2014, Letter submitted for the record .................. 84 

U.S. Department of Agriculture, Prepared statement of .............................. 71 

(1) 

OVERSIGHT HEARING ON NEW FEDERAL 

SCHEMES TO SOAK UP WATER AUTHORITY: 

IMPACTS ON STATES, WATER USERS, 

RECREATION AND JOBS 

Tuesday, June 24, 2014 

U.S. House of Representatives 

Subcommittee on Water and Power 

Committee on Natural Resources 

Washington, DC 

The subcommittee met, pursuant to notice, at 10:00 a.m., in room 

1324, Longworth House Office Building, Hon. Tom McClintock, 

[Chairman of the Subcommittee] presiding. 

Present: Representatives McClintock, Lummis, Tipton, Gosar, 

Labrador, LaMalfa, Smith, Byrne, Hastings (ex officio); Napolitano, 

Costa, Huffman, DeFazio (ex officio). 

Mr. MCCLINTOCK. The Subcommittee on Water and Power will 

come to order. 

The Water and Power Subcommittee meets today to hear testimony on a hearing titled ‘‘New Federal Schemes to Soak up Water 

Authority: Impacts on States, Water Users, Recreation, and Jobs.’’ 

I will begin with 5-minute opening statements by the committee, 

and the Chair will begin. 

STATEMENT OF THE HON. TOM MCCLINTOCK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. MCCLINTOCK. The subcommittee meets today in response to 

urgent protests made by a wide range of state and local governments, farmers, ranchers, and public land users, and private land 

owners in response to threatened action by the EPA and the Forest 

Service to vastly expand their authority over water use at the expense of long established state jurisdictions, rights and prerogatives and in direct violation of the constitutional separation of 

powers. 

This subcommittee met 2 years ago to discuss how the Forest 

Service planned to extort ski areas of their water rights in exchange for operating permits. The House passed a bill to remedy 

that. 

Now the Forest Service threatens through executive fiat to assert 

management control over ‘‘surface and groundwater resources that 

are hydraulically interconnected and to consider them interconnected in all planning and evaluation activities.’’ It also asserts 

Federal supremacy over state water rights not only on national 

Forest Service land, but on adjacent lands that could conceivably 

affect the Federal lands. 

The unconstitutional and illegal assertion of such authority 

would impose Federal riparian rights in direct violation of current 

Federal law. It overturns western state doctrines of prior approVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
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priations that have guided water policy in those states for more 

than 150 years. As we will hear, the economic impact of this action 

is devastating to those states. 

Meanwhile, the EPA now threatens, again through executive fiat, 

to vastly increase its jurisdiction over virtually all water in the 

United States. The Clean Water Act provided the EPA with jurisdiction only over navigable waters. In 2010, then-Congressman 

Oberstar proposed legislation to delete the term ‘‘navigable waters,’’ to vastly redefine ‘‘Waters of the United States’’. The 

Democratic majority in that Congress declined even to hear the 

bill. Under a Constitution that gives Congress exclusive authority 

to legislate, the EPA now threatens to change the law itself to vastly increase its power and jurisdiction. 

By this act, the EPA is seizing control over virtually every body 

of water in the United States, including many agricultural and 

drainage ditches, ornamental lakes, conduits people use for water 

recycling, and small creeks and streams, including those that exist 

only during heavy runoffs. 

What this means in practice is the Forest Service and the EPA 

can, under these proposals, require cost-prohibitive Federal permits 

for any proposal tangentially affecting virtually any body of water 

in the United States. 

What this means constitutionally is that legislative power exclusively assigned to Congress has now passed unrestricted to the 

Executive, including the power to repeal existing laws, such as the 

McCarran Amendment that guarantees to states supremacy in establishing and enforcing the water rights within their jurisdictions, 

and the power to amend laws, in direct defiance of Congress, including changing the fundamental terms of executive jurisdictions. 

These proposals not only threaten to upend 150 years of state 

water laws, but to present us with a constitutional crisis the significance of which cannot be overstated. To add arrogance to injury, 

the Agencies responsible for these proposals have refused the invitation of this subcommittee to explain themselves and their 

conduct, submitting at the last minute fatuous and wholly unresponsive written testimony. 

Their absence speaks volumes about their lack of defense for 

these proposals and makes a mockery of this administration’s 

pledge for transparency. 

These proposals must be withdrawn, and there is bipartisan support to do just that. Many Democrats have joined Republicans to 

urge this administration to withdraw the ‘‘Waters of the U.S.’’ proposal. Chairman Hastings and many members of the Natural 

Resources Committee and the House and Senate Western Caucus 

are sending a letter today urging the Agriculture Secretary to withdraw its Forest Service Groundwater Directive. 

We will pursue legislation through both the appropriation and 

authorization powers of Congress to stop this unconstitutional and 

illegal overreach. 

I believe that these proposals open a new chapter in executive 

agencies running amuck, seizing powers by their own edicts that 

have been specifically denied them by the legislation that created 

them in the first place. They fundamentally alter the relationship 

between the legislative and executive branches, and the relationVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
3 

ship between the states and the Federal Government, all in a manner wholly antithetical to the structure and construct of our system 

of checks and balances and of the sworn duty of every official to 

abide by the laws and the Constitution. 

With that I yield back the balance of my time and recognize the 

Ranking Member, Mrs. Napolitano, for 5 minutes. 

STATEMENT OF THE HON. GRACE F. NAPOLITANO, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

CALIFORNIA 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

Today’s hearing focuses on the two proposed rules by the administration, the proposed definition of ‘‘Waters of the United States’’ 

under the Clean Water Act, and the Forest Service’s Groundwater 

Directive. 

I am proud to serve on this subcommittee as well as the Water 

Resources and Environment Subcommittee and on the Transportation and Infrastructure Committee. The Transportation Committee’s Water Resources Subcommittee has jurisdiction over the 

Clean Water Act, not Natural Resources. 

I attended the Water Resources Subcommittee hearing 2 weeks 

ago regarding the administration’s proposed rulemaking on the 

term ‘‘Waters of the United States.’’ Some of the topics being 

brought up by witnesses today had already been totally addressed 

at the Transportation and Infrastructure hearing, and some of the 

issues have also already been addressed in last week’s Agricultural 

hearing. This will be the third time we will be discussing many of 

these same concerns. 

While I support the proposed ‘‘Waters of the United States’’ rule, 

I also know that the rule is complex and complicated. Numerous 

stakeholders have raised valid concerns, and I repeat, valid concerns, about the potential implications of this particular rule or 

rules. We want to help our constituents to get the clarity they need 

to alleviate their concerns. 

Both the ‘‘Waters of the United States’’ and the Forest Service’s 

Groundwater Directive are not final. Both are in the process of 

public comments. EPA recently announced that the public comment 

for the ‘‘Waters of the United States’’ will be extended through 

October of this year, and we urge all of the witnesses who are interested to provide public comment in this process or be part of the 

process and submit your comments so that the agencies may fully 

consider all of the concerns. 

I would also ask that as you finalize your comments that you 

share them with this committee so that we may also better understand your concerns. It is really important for all of us to be able 

to have information on both sides so that we can better deal with 

this issue here in Congress. 

And I thank you for our witnesses, to all of them, for being here 

today. I hope you have a good trip going home. 

Thank you, and I yield back. 

Mr. MCCLINTOCK. The Chair is now pleased to recognize the 

Chairman of the Natural Resources Committee, Chairman Doc 

Hastings of Washington. 

4 

STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON 

Mr. HASTINGS. Thank you, Mr. Chairman, and thank you for the 

courtesy in allowing me to participate in your subcommittee 

hearing. 

Today’s examination of how proposed Federal regulations will 

impact multipurpose land and water uses on and off Federal lands 

is important when it comes to protecting and expanding our water 

and power supplies. 

Republicans on the Natural Resources Committee have pursued 

an ‘‘all of the above’’ agenda not only on energy, but for water supply also. Our efforts to provide future supplies from new or expanded water storage, canals, conservation, and efficiency through 

common sense regulatory improvements and financial incentives is 

the exact opposite approach that has been taken by this administration. 

We can foster water development for people and species if the 

Federal Government chooses not to erect hurdles to new projects. 

Yet the two proposals in front of us—the EPA’s ‘‘Waters of the 

United States’’ and the Forest Service’s new Groundwater Directive 

do nothing more than make it more difficult to rehabilitate or build 

new projects that benefit agriculture, municipalities, species, and 

habitat. 

Our witness before us today, Mr. Larry Martin, who lives and 

works in the Yakima Valley in my Central Washington District and 

representing the National Water Resources Association will testify 

today about the benefits of the Yakima River Integrated Water 

Resource Management Plan. 

This diverse, stakeholder-based approach could provide new and 

expanded water storage to help both people and fish in that part 

of Washington. Yet, you will hear today the Forest Service topdown Groundwater Directive could, and I quote, ‘‘delay or derail 

the implementation of this vital, innovative, and broadly supported 

plan’’ because the reservoir improvements are on Forest Service 

lands. 

To make matters worse, EPA’s ‘‘Waters of the U.S.’’ proposal 

could shut down development on a broad scale outside of Federal 

lands. We are told that the proposal does not impact irrigation districts, canals, ditches. Yet this Washington, DC-based regulation 

has so many ill-defined terms in its regulation that it will make it 

much easier for litigious groups to sue and, therefore, stop such 

projects, even projects such as conservation and efficiency projects. 

This administration’s mantra seems to be that if it flows, even 

for a few weeks out of the year, then it must be regulated by the 

Federal Government. Yet the administration’s failure to defend 

these proposals to the American people and to this subcommittee 

today is telling. It is telling especially so in the face of the water 

and power experts before us who must live on the front lines of 

Federal regulations every day. 

So I commend the witnesses for traveling here today to enlighten 

this committee and, by extension, the House of Representatives on 

how such ill-conceived regulations would add cost to consumers and 

may actually harm the environment, and I commend the 

Subcommittee Chairman for holding this hearing. 

5 

And I yield back my time. 

Mr. MCCLINTOCK. I thank the Chairman. 

The Chair now recognizes the Ranking Member of the House 

Natural Resources Committee, Mr. DeFazio of Oregon, for 5 minutes. 

STATEMENT OF THE HON. PETER DEFAZIO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. DEFAZIO. I thank the Chairman. 

I would just like to put a little bit of why we are here today in 

context. When I was a kid, the Willamette River in Oregon was an 

open sewer, and back East they actually had signs posted at 

bridges when you drove over them saying ‘‘Flammable object below. 

Do not throw lighted objects, i.e., cigarettes, from bridge.’’ Those 

were rivers, and they caught fire, most famously the Cuyahoga and 

others. 

So the Nation came together and we adopted the Clean Water 

Act. The Clean Water Act has never been reauthorized. I was involved in an exercise in 1994 on the Transportation, then called 

the—gosh, I do not know. It has changed its name a number of 

times—Public Works Committee, I think, and it was back in the 

days when we really legislated or attempted to. It was in 1995 actually. The Republicans had taken over, and it was their version 

of a bill. It went on for 5 days, dozens and dozens of amendments 

and debate. 

The bottom line of the bill they proposed, which never was 

brought to the Floor because it was a very radical change, was that 

users should be responsible, not polluters. That was rejected back 

then. 

So I think there is consensus that we want to prevent pollution. 

We want to prevent degradation. We want to prevent wetland loss 

and all the associated problems with that. It is an immensely difficult, complicated issue. You know, we have had two Supreme 

Court cases. We have had guidance and then we have had new 

guidance, and then we have had a former proposed withdrawn rule, 

and now we have a proposed rule. 

So what I caution the witnesses here today is, this is a proposed 

rule. That means that it is out for comment. The comment period 

has been extended. I welcome you to provide us specifics today 

about problems. There are problems, I believe, with some definitions in the bill, but I am hearing about problems that are no 

longer covered by the bill. 

Specifically, I raised a whole issue about rills and basically runoff, gullies, rills, et cetera, which I felt in the former guidance and 

in some former proposed legislation by our deceased colleague, Jim 

Oberstar, I think would have been covered. In Oregon it rains a lot, 

and we have sloat. Those would have been specifically exempted. 

Some other things seem to have been exempted, but they are not 

really defined. So we are not sure if they are exempted, and those 

things merit, many things merit exemption. Ornamental ponds, 

those things seem to have been taken care of, but I am still hearing 

about that. 

So I want to hear about real problems with the proposed rule 

and things that are common sense that need to be changed, simVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
6 

plified, clarified so that we do not end up in court again. We do not 

want to go to court again. We want to protect our waters. We want 

to protect our wetlands. We want to provide for future generations, 

and you know, lawyers can get plenty of other business out there. 

Let us get this one right. 

So those are the kinds of concerns and comments I would like to 

hear today and in the ensuing couple of months before the comment period closes, productive ideas, not just like ‘‘no,’’ you know, 

‘‘no, no.’’ ‘‘No’’ is not helpful, but here is a problem with what you 

are doing and how it relates to farming. Here is a problem with forestry. Here is a problem with power production, all legitimate activities. 

I mean, if there is a problem with wastewater, which I think 

they may have taken care of, but again, it is a very complicated 

rule with the handling of wastewater and water recycling and that; 

I think they have taken care of it, but maybe there is some point 

that they have not really taken care of exempting those activities. 

So those are the sorts of comments I would like to hear today. 

With that, Mr. Chairman, I thank you for the time. 

Mr. MCCLINTOCK. The Chair is now pleased to recognize the gentleman from California, Mr. LaMalfa, for 5 minutes. 

STATEMENT OF THE HON. DOUG LAMALFA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. LAMALFA. Thank you, Mr. Chairman. 

I appreciate this hearing today. It is very timely and very key 

from what we hear are some proposals out there. It is important 

that we do this because I believe the EPA is attempting to seize 

control of virtually all land use in the United States through this 

extremely creative interpretation of the law. 

The EPA views the rule so expansive that the draft included an 

exemption for puddles, which has since been removed. Does this 

mean the administration now intends to regulate puddles? It certainly appears to be the case. 

It is especially interesting to see the administration use the 

Clean Water Act as part of the pretext to expand its jurisdiction 

as it routinely ignores this law in its day-to-day activities. We have 

seen Federal agencies, none of whom bothered to show up today, 

attack activities that are specifically exempted in the Act, exempted in the Act from regulation, particularly farming activities like 

maintaining irrigation systems. 

An example we have in northern California, a family’s effort to 

shift from ditch irrigation to a more efficient pipe irrigation which 

one would think this administration would like and support, water 

efficiency and all of that. This effort was stymied when Federal 

agencies argued that the work would somehow negatively impact 

the Sacramento River. Never mind that the Sacramento River is 7 

miles away from this project. Any possible sediment runoff effect 

could be collected, would be collected in a manmade pond that the 

family has on their property with no outlet from that pond. So 

there is no connection between these fields and a 7 mile away 

river. The family is forced to spend thousands of dollars to fight 

regulations that do not even exist on this. 

7 

We have seen the administration splitting hairs to a ridiculous 

degree when it comes to other exempted agriculture activities, especially plowing fields. It has decided in some cases plowing to a 

certain depth is, in fact, not plowing despite the fact the tool used 

for the work is a plow. 

Mr. Chairman, it is not an exaggeration to say that the administration’s proposal would insert Federal control into land use decisions in virtually all of California and the Central Valley. The 

proposed ‘‘Waters of the United States’’ rule would give the Federal 

Government control over every tributary of every navigable water 

and tributaries to those streams and even unconnected bodies of 

water which are adjacent to such waters. 

The administration also claims control over every area of dry 

land that is subject to inundation under moderate to high flows, 

which effectively would include the entire Central Valley. Again, a 

lot of room for interpretation, ‘‘subject to inundation under moderate to high flows,’’ what does that even mean? 

Combining these areas with the riparian areas along every natural or artificial tributary to navigable rivers and their tributaries, 

which would include every waterway in the Central Valley and certainly most waterways in the Sierra Nevada and Cascade 

Mountain ranges. You begin to get a picture of the impact we are 

talking about. 

The rule would create Federal control of a vast portion of the 

state, including areas far from any waterway considered to be navigable. There is a word that really needs to be defined or re-defined 

in my opinion, ‘‘navigable.’’ 

Do Americans truly want the Federal Government to decide 

whether they can remodel their home or landscape their backyard? 

Do Americans want the Federal Government deciding that some 

plowing is not actually plowing? Do Americans want the Federal 

Government in the guise of unelected, unaccountable bureaucrats 

that do not tend to show up in front of the people’s elected body, 

to decide that they cannot operate a business, maintain roads, clear 

brush or simply continue farming the land as they have always 

done for generations? 

This is a proposed rule that the people need to weigh in upon. 

We do need to say ‘‘no’’ to proposed rules. ‘‘No’’ can be helpful because they do not enforce the rules, the laws right as it is now, not 

consistently and not where people are landowners that come and 

complain to me about, could not even tell what they are supposed 

to do to comply. They do not hear back for months. They cannot 

get definitive answers, and yet this group wants to move forward 

and regulate to an even wider range than what they have right 

now. They do not follow their own rules. 

Mr. Chairman, I do not believe that is what the American people 

want. So I yield back. Thank you. 

Mr. MCCLINTOCK. The chair now recognizes Mr. Smith of 

Missouri for 5 minutes. 

STATEMENT OF THE HON. JASON SMITH, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF MISSOURI 

Mr. SMITH. Thank you, Mr. Chairman. Thank you for convening 

this hearing today on two key issues facing my constituents, the soVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
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called ‘‘Waters of the United States’’ rule currently being advanced 

by the EPA and the Corps of Engineers, and the Forest Service 

Groundwater Directive. 

I want to thank the witnesses who took the time to be here 

today, including Mr. Roger Clark from Missouri. Roger is the 

Director of Engineering and Operations of Associated Electric 

Cooperative in Springfield, Missouri. 

Associated, through their member cooperatives, is the source of 

electricity for most of my constituents. 

These witnesses’ presence today stands in stark contrast to the 

Federal agencies charged with either proposing these rules or having to live them who failed to even show up today. If this administration cannot be bothered to explain these proposed regulations to 

this committee and answer simple questions from Republicans and 

Democrats in front of this panel of assembled experts, how can we 

expect them to explain these regulations to our affected constituents? They cannot and they are not. 

I have joined with my colleagues and other members of this committee to ask the administration to withdraw both the proposed 

‘‘Waters of the United States’’ rule and the new Forest Service 

groundwater rule. If this administration is not prepared to explain 

or defend these rules today, then perhaps it is time that these rules 

were withdrawn. 

To call these issues important to my constituents would be an 

understatement. Water is everywhere in southeastern Missouri. 

Much of my district used to be a swamp, but now that it has been 

drained, it is one of the most productive and diverse agriculture 

areas in the Nation. We grow everything but citrus and sugar. 

Agriculture is the number one industry in Missouri and about 

one-third of Missouri’s agriculture income is produced in the seven 

Boot Hill counties in the Eighth Congressional District which used 

to be swampland. Instead of a swamp, there are now over 1,000 

miles of manmade ditches draining 1.2 million acres of farmland. 

Applying the Federal permitting process to every pond, gully, dry 

creek bed, irrigation ditch, puddle or other similar collection of 

water would be a huge increase in our regulatory burden. The government regulators claim that these are exemptions in the rules for 

these ditches and other manmade collections of water, but these exemptions are not well defined leaving many to believe that they 

may not be exemptions clearly at all. 

I have many questions about these so-called exemptions and how 

they would apply. Unfortunately, this administration did not send 

anyone here today to answer any questions. 

In addition to this rich agriculture area of southeast Missouri, 

my district also contains large sections of the 1.5 million acre Mark 

Twain National Forest. The Forest Service groundwater rule that 

we are discussing today would require consideration of the effects 

on the groundwater resources on Forest Service lands of all proposed and authorized groundwater uses prior to the authorization 

or re-authorization of their use. 

Additionally, the Directive assumes that groundwater and surface water have a hydrological connection. What does this mean? 

If these rules go through as is, now the Forest Service, the EPA, 

and the Corps of Engineers may all get involved in regulating a 

9 

drainage ditch that only holds water 2 months out of the year because there is a hydrologic connection between the ditch and the 

groundwater in the Mark Twain National Forest. 

Let me remind you that my district has around 1,000 miles of 

these ditches. These rules are so vaguely written and so expansive 

that if they were proposed by anyone other than this administration, I might be shocked. Unfortunately, this process has become 

all too familiar. 

I hope that this hearing today will help to further the case that 

these regulations are executive overreach in its worse form and 

that they should be withdrawn immediately before they have the 

chance to severely harm the farmers, small business owners, and 

individuals in my district that use and work on a daily basis their 

land. 

Thank you, Mr. Chairman. I yield back the remainder of my 

time. 

Mr. MCCLINTOCK. I thank the gentleman. 

If there are no further opening statements, we will now hear 

from our panel of witnesses. Each witness’s written testimony will 

appear in full in the hearing record. So I would ask witnesses to 

keep their oral statements to 5 minutes as outlined in our invitation letter to you under Committee Rule 4(a). 

We have some helpful timing lights to keep you within those parameters. The yellow light indicates there is 1 minute remaining, 

and the red light indicates that your time has expired. 

Before we begin, I would like to note that Forest Service Chief 

Tom Tidwell and Mr. Lowell Pimley, the Acting Commissioner of 

the Bureau of Reclamation, were invited to testify at today’s hearing, as I indicated in my opening statement and Mr. Smith referenced. The administration has provided witness statements from 

these agencies, yet failed to provide a witness to answer any questions stemming from that testimony. 

That said, I now recognize Mr. Lawrence Martin, the attorney at 

the Halverson Northwest Law Group and representing the 

National Water Resources Association from Yakima, Washington, 

to testify. 

You are recognized for 5 minutes. 

STATEMENT OF LAWRENCE MARTIN, ATTORNEY, HALVERSON 

NORTHWEST LAW GROUP, YAKIMA, WASHINGTON, 

REPRESENTING THE NATIONAL WATER RESOURCES 

ASSOCIATION 

Mr. MARTIN. Thank you, Mr. Chairman and members of the subcommittee. Thank you for giving me the opportunity to appear 

today. 

My name is Larry Martin. I am here on behalf of the National 

Water Resources Association. NWRA represents state associations, 

irrigation districts, other water providers, and their collective interests in the management of irrigation and municipal water supplies 

in the western states. 

We fully support the need for keeping our water safe and clean, 

not only for purposes of crop production, but also for drinking 

water and fish and wildlife habitat. 

10 

I will focus on the proposals regarding the definition of the 

‘‘Waters of the U.S.’’ and management of U.S. Forest Service 

groundwater, but I must mention that these are only two of the 

pending rules. Water users are also struggling to review and comprehend Forest Service directives on BMPs and ski area water 

rights, and three other draft rules and policies related to the 

Endangered Species Act. 

All of these proposals have the potential to seriously impact 

water users. These are not easy reads. They are highly technical 

documents that cited numerous studies. 

The proposed ‘‘Waters of the U.S.’’ rule continues to expand 

Federal and legal jurisdiction to the detriment of local communities 

and water users who rely on the efficient delivery of water for 

crops, jobs and our economy. The agencies may claim the proposed 

rule will provide clarity to regulated entities. That assertion is contradicted by the imprecise terms contained in the rule. 

Despite its length, the proposal creates more questions than answers on whether a minor body of water is a ‘‘Water of the U.S.’’ 

and has the potential to expand Federal jurisdiction over thousands, if not millions, of acres. 

Compliance with permitting requirements can take years and 

cost many thousands of dollars. These costs cannot be avoided because the Act imposes criminal liability and civil fines on a broad 

range of ordinary activities. 

We do commend the agencies with proposing exemptions from 

Federal jurisdiction. However, the uncertainties in some of the definitions provide only vague answers as to whether certain waters 

will be excluded. Every year irrigation districts, water companies 

and farmers perform routine maintenance work on thousands of 

miles of canals and ditches. If required to obtain a permit for each 

such activity, these routine activities will become anything but routine. 

One of my clients is in the Sunnyside Valley Irrigation District 

(SVID) in the Yakima Valley. It serves nearly 100,000 acres of the 

most productive farm ground in the Nation growing hops, apples, 

cherries, grapes, mint, and other important food crops. SVID has 

received numerous awards for its environmental and conservation 

activities. Its conservation project has increased efficiencies to its 

farmers, plus will return over 43,000 acre-feet per year for ensuring flows to the Yakima River. 

Despite its leadership, SVID was the unfortunate subject of the 

uncertainty regarding ‘‘Waters of the U.S.’’ SVID was performing 

routine maintenance to fix an erosion and a drainage issue in a 

ditch. This activity is likely performed on an almost daily basis by 

other irrigation providers in the West. The Corps advised SVID the 

ditch was subject to jurisdiction and was told to return the ditch 

back to its original, but not working condition. The Corps added 

that in its opinion, the work performed on the ditch was not necessary. 

After 4 years of negotiation, numerous meetings, and trips to 

Washington, DC to meet with EPA and the Corps, and the issuance 

of a new regulatory guidance letter, SVID was eventually advised 

its work on the ditch did not require a permit. 

11 

Similar situations to SVID’s experience will continue to occur 

until there are clear definitions distinguishing between jurisdictional waters. Irrigation ditches were never intended to be considered a ‘‘Water of the U.S.,’’ and the final rule should expressly 

provide that exclusion. 

Similarly, reclamation and reuse facilities should also be exempt. 

I have submitted for those reclamation facilities in California 

which under the proposed rule will likely now be jurisdictions. 

NWRA is also concerned with the new Forest Service Groundwater Directive which is contrary to longstanding Federal policy 

respecting the roles of states and private property rights in regulating groundwater. This directive was developed without any 

meaningful outreach to water users, many of which have existing 

water systems on Forest Service lands. 

The Directive would place additional permitting requirements on 

water infrastructure and will make meeting current and future 

needs and responding to climate variability more difficult and 

expensive. 

We are also concerned that the Forest Service will attempt to tie 

permit approval to the modification of a state-issued water right 

and has the real risk of jeopardizing the integrated plan in the 

Yakima Basin. NWRA members will continue to meet their obligations to provide an efficient and safe water supply and remain 

dedicated to the protection of our natural resources. 

Unfortunately the rules expand Federal jurisdiction, imposing 

additional regulatory burdens on water suppliers. 

On behalf of NWRA’s members, I thank you for your attention 

to the critical water supply issues. 

[The prepared statement of Mr. Martin follows:] 

PREPARED STATEMENT OF LAWRENCE E. MARTIN, ATTORNEY, HALVERSON

NORTHWEST LAW GROUP, YAKIMA, WASHINGTON, SUBMITTED ON BEHALF OF THE

NATIONAL WATER RESOURCES ASSOCIATION

INTRODUCTION

Chairman McClintock, Ranking Member Napolitano, and members of the subcommittee, thank you for giving me the opportunity to appear before you today, and 

for your attention to the many water challenges facing our Nation. My name is 

Larry Martin and I am here on behalf of the National Water Resources Association; 

more commonly known as NWRA. NWRA represents state associations, irrigation 

districts, other water providers, and their collective interests in the management of 

irrigation and municipal water supplies in the western states. NWRA members provide clean water to millions of individuals, as well as families, agricultural producers and other businesses. For more than 80 years our members have worked to 

provide water in a manner that provides both economic and ecosystem benefits to 

communities in the West. 

NWRA and its many members are stewards, dedicated to the efficient management of water supplies; one of our country’s most important resources. I am the CoChair of the Regulatory Committee for NWRA, and serve as a member of the 

Federal Affairs, Water Quality, and Litigation Task Forces. NWRA has long been 

involved in matters regarding the administration of the Clean Water Act (‘‘Act’’ or 

‘‘CWA’’) and its interpretation by the Courts, and regularly provides briefings for 

Congressional staff. NWRA is committed to working with the agencies to provide a 

clearly defined, efficient process for all permitting requirements. 

NWRA members have historically been, and will continue to be supporters of the 

goals of the Clean Water Act. NWRA members fully understand and support the 

need for keeping our waters safe and clean, not only for purposes of crop production, 

but also for drinking water, fish and wildlife habitat, and recreational uses. To further those goals, NWRA members continue to make necessary improvements to 

their systems to increase efficiencies, conservation, and environmental protections. 

12 

In my testimony this morning I will focus on the recently proposed rule regarding 

the definition of the ‘‘Waters of the United States’’ and its impacts on Bureau of 

Reclamation customers. I will also discuss a U.S. Forest Service groundwater proposal that, as currently drafted, has the potential to undermine state rights, increase the cost of water, and make meeting future water supply needs more 

difficult. 

I have limited time today, so I will focus my comments on the Clean Water Act 

and groundwater proposals. But I would do the committee and water users a disservice if I failed to mention that these are only two of the numerous pending rules, 

regulations, or policies proposed by the agencies that are currently out for comment. 

As I sit here today water users are struggling to review, comprehend, and comment 

on: 

• Proposed Rule: Definition of ‘‘Waters of the United States’’ Under the Clean 

Water Act 

• Proposed Directive: Proposed Directive on Groundwater Resources Management, Forest Service Manual 2560 • Proposed Directive: Proposed Directives for National Best Management 

Practices for Water Quality Protection on National Forest System Lands 

• Proposed Rule: Ski Area Water Rights on Forest Service Lands 

• Proposed Rule: Listing Endangered and Threatened Species and Designating 

Critical Habitat; Implementing Changes to the Regulations for Designating 

Critical Habitat 

• Draft Policy: Policy Regarding Implementation of Section 4(b)(2) of the 

Endangered Species Act 

• Proposed Rule: Interagency Cooperation—Endangered Species Act of 1973, as 

Amended; Definition of Destruction or Adverse Modification of Critical 

Habitat 

All of these proposals are currently open for comment and have the potential to 

seriously impact water users. These provisions are not easy reads; they are highly 

technical documents that cite numerous studies, which in some cases are not even 

finalized. As an example of the kind of document we are reviewing, let me read one 

sentence from the ‘‘Definition of Destruction or Adverse Modification of Critical 

Habitat.’’ It states: ‘‘Therefore, an action that would preclude or significantly delay 

the development or restoration of the physical or biological features needed to 

achieve that capability, to an extent that it appreciably diminishes the conservation 

value of critical habitat relative to that which would occur without the action under 

going consultation, is likely to result in destruction or adverse modification.’’ This 

is just one sentence from the hundreds of pages of regulations currently out for comment. 

All of these regulations have come out within the last few months, the same time 

that many of NWRA’s members are busiest, focusing on irrigating, planting and 

growing crops that feed and clothe our Nation. I do not understand how the agencies expect our Nation’s farmers and ranchers to meaningfully review and comment 

on all of these regulations. We want to work collaboratively with our Federal partners to provide meaningful comment, but the sheer mass and complexity of these 

regulations makes that charge exceedingly difficult. We have asked for extensions 

or will ask for extensions to all of these comment periods in coming weeks. I hope 

the agencies will heed this request; otherwise I fear this recent flood of regulation 

will drown agricultural and municipal water users in red tape. 

NWRA POSITION ON PROPOSED RULE ON ‘‘WATERS OF THE UNITED STATES’’ UNDER THE

CLEAN WATER ACT

The proposed rule by EPA and the U.S. Army Corps of Engineers (the Corps) continues to expand the historical scope of Federal jurisdiction under the Clean Water 

Act, and the various Court decisions interpreting the Act. This jurisdictional creep 

has been to the detriment of local communities and water users who rely on the 

efficient delivery of water for crops, jobs, and our economy. The reach and scope of 

the Clean Water Act’s jurisdiction has kept EPA and the courtrooms busy. Despite 

the jurisdiction limitations contained in the original 1972 Act, and the judicial recognition by the U.S. Supreme Court in SWANCC and Rapanos that jurisdiction is 

not unlimited; the proposed rule goes beyond what was intended with the passage 

of the Clean Water Act. 

The agencies may claim the proposed rule will provide clarity to regulated entities. That assertion is contradicted by the imprecise terms and broad definitions 

contained in the proposed rule, along with the agencies’ statements that they will 

use their ‘‘best professional judgment and experience’’ to interpret the terms. InVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
13 

stead, despite its length, the proposal creates more questions than answers on 

whether a minor body of water is a ‘‘Water of the U.S.’’ The primary question is 

why is it necessary to expand jurisdiction to local waters that have marginal connections to traditional navigable waters? 

Another question is whether there is any appropriate cost/benefit balance to increasing jurisdiction over remote and intermittent waters? The proposed rule has 

the potential to expand categorical Federal CWA jurisdiction over thousands, if not 

millions, of acres of property, and will likely encourage litigation over the scope of 

the rule. If adopted as presently proposed, the rule will increase costs and regulatory burdens on farmers, business, private and public landowners, and state and 

local governments by expanding the types of water bodies that require CWA permits. The proposed rule will also increase the risk of citizen suits due to the expanding scope of jurisdiction and regulatory questions raised by the rule. 

The proposed rule would change the Clean Water Act and dictate that the 

following waters will always be jurisdictional: 

• All tributaries, including any waters such as wetlands, lakes, and ponds, 

that contribute flow, either directly or through another water, to downstream 

traditional navigable waters or interstate waters. 

• All waters adjacent to such tributaries. The proposed rule broadly defines 

‘‘adjacent’’ to include all waters located within the ‘‘riparian area’’ or ‘‘floodplain’’ of otherwise jurisdictional waters, including waters with shallow subsurface hydrologic connection or confined surface hydrologic connection to 

jurisdictional water. 

• All man-made conveyances, including ditches, would be considered jurisdictional tributaries if they have a bed, bank and ordinary high water mark 

and flow directly or indirectly into a ‘‘Water of the U.S.’’ regardless of perennial, intermittent, or ephemeral flow. 

The extension of jurisdiction to these water features has implications for farming, 

permitting, land use options, and required mitigation. Water suppliers and private 

and public landowners will experience costs and delays associated with additional 

permits, restrictions on options, and the continued uncertainty on the scope of jurisdiction. Until the rule provides the specificity needed, persons will still be subject 

to the sometimes inconsistent interpretations offered by Corps of Engineer personnel. As often cited from the Rapanos decision, a 2002 study reported the average 

applicant for an individual permit spent 788 days and $271,596 in completing the 

process, and the average applicant for a nationwide permit spends 313 days and 

$28,915—not counting costs of mitigation or design changes. Close to $2 billion is 

spent each year by the private and public sectors obtaining wetlands permits. These 

costs cannot be avoided, because the Clean Water Act imposes criminal liability, as 

well as steep civil fines, on a broad range of ordinary activities. Expanding the scope 

of the Act to additional and uncertain jurisdictional water bodies will only increase 

those costs and delays. 

We do commend the agencies with proposing categorical exemptions from Federal 

jurisdiction; however the uncertainties and lack of specificity in some of the definitions provide only vague answers as to whether certain waters will be considered 

excluded from the scope of ‘‘Waters of the U.S.’’ 

• For example, artificially irrigated areas that would revert to upland should 

water application cease are exempt, but there is no definite clarification as 

to what qualifies as an ‘‘upland.’’ 

• The proposed rule also properly excludes ‘‘groundwater’’ from its definition of 

‘‘Waters of the United States,’’ but it does not reconcile that exclusion with 

its inclusion of certain waters based on a ‘‘subsurface’’ (groundwater) connection. 

• Other exclusions that are not clearly defined include: gullies, rills, nonwetland swales; and certain types of upland ditches, or those ditches that do 

not contribute flow to a ‘‘Water of the U.S.’’ Again, key terms like ‘‘uplands’’ 

and ‘‘contribute flow’’ are undefined. For the people I represent, it is imperative that the rule define how currently exempt ditches will be distinguished 

from jurisdictional ditches. The proposed rule needs greater clarity, ensuring 

that the historic exemptions for irrigation ditches and associated infrastructure are retained. 

I represent numerous irrigation districts, water companies, and farmers in 

Washington State. The most critical element to my clients’ livelihoods is the reliable, safe, and efficient delivery of water for the production of food and crops. In 

2011, the total production value for the 17 states comprising the western U.S. region 

14 

1 ‘‘The Economic Importance of Western Irrigated Agriculture’’ Water Resources—White Paper, 

prepared by Pacific Northwest Project, August 2013. 

was about $171 billion; with about $117 billion tied to irrigated agriculture. There 

is approximately 42 million irrigated acres for the western United States.1

Irrigation water providers, and farmers that rely on those waters, use a distribution system of canals, ditches, and drains to move water efficiently and reliably for 

crop production. It is mandatory that such ditches be maintained in a proper manner. As the committee is well aware based on recent droughts, any lack of water 

during critical periods can be disastrous to crops, farmers, and our economy. 

Irrigation ditches were never intended to be considered a ‘‘Water of the United 

States’’ and yet the proposed rule perpetuates the misconception. According to the 

majority opinion written by Justice Scalia in Rapanos; ‘‘Waters of the United States’’ 

was intended to be limited to ‘‘relatively permanent, standing or flowing bodies of 

water. The definition refers to water as found in ‘streams,’ ‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming geographical features.’ ’’ Justice Scalia goes on to say that 

phrase does not include, ‘‘ordinarily dry channels through which water occasionally 

or intermittently flows.’’ Nor are man-made irrigation and drain ditches to be included as ‘‘Waters of the United States.’’ 

Irrigation facilities such as canals and drains are distinct from natural waters 

both in their ‘‘nature’’ and their ‘‘purpose.’’ Irrigation ditches are constructed conveyances regularly maintained for the purpose of delivering irrigation water or draining 

agricultural lands. The purpose of drain ditches is to remove the surface and subsurface flows that are present only because of the application of irrigation water. 

Irrigation and drainage facilities cannot fairly be characterized as either streams, 

rivers, lakes or other bodies of water forming natural geographical features. These 

are artificial facilities created for the purpose of irrigation and drainage. Normally, 

these channels would otherwise be dry, but for the application of irrigation water 

to produce crops. 

Where irrigation drains carry water on a more permanent basis it is due primarily to groundwater that is not jurisdictional to the Clean Water Act. Most irrigation return flows return subsurface to irrigation drains. The Corps regulatory 

approach would appear to control drains, but if the continued flow in a drain is from 

groundwater, it is not surface water, and therefore not jurisdictional. Irrigation 

drains would not have the necessary surface connection with navigable waters, but 

for the groundwater contribution caused by irrigation return flows. Since the Clean 

Water Act is concerned with surface water and not ground water, the flow in irrigation ditches and drains does not meet the ‘‘significant nexus’’ requirement with navigable waters, and should be specifically and clearly excluded from permitting 

requirements. 

The primary goal of any rulemaking should be to clarify the scope of the Federal 

agencies’ jurisdiction under the Act. In particular, the agencies should make clear 

that irrigation canals, ditches and drains are not navigable waters, are not ‘‘Waters 

of the U.S.,’’ and are not ‘‘tributary’’ to waters of the United States, consistent with 

the 1975 and 1977 regulations. The Act specifically excludes ‘‘return flows from irrigated agriculture’’ from the definition of ‘‘point source’’. 33 U.S.C. Sec. 1362(14); 

CWA Sec. 502(14). The Act also exempts ‘‘return flows from irrigated agriculture’’ 

from the NPDES permit requirements. 33 U.S.C. 1342(l)(1); CWA Sec. 402(l)(1). 

Similarly, permits for dredged or fill material are not required ‘‘for the purpose of 

construction or maintenance of . . . irrigation ditches, or the maintenance of drainage ditches’’. 33 U.S.C. Sec. 1344(f)(1)(C); CWA Sec. 404(f)(1)(C). 

The words chosen by Congress and the intent of the Act are clear: irrigation canals, ditches, and drains were not meant to be regulated under the Clean Water 

Act. This was reflected in the 1975 and 1977 regulations, which provided that ‘‘manmade nontidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States.’’ 40 Fed. Reg. 31,321 (1975); 33 CFR 

323.2(a)(5)(1982). This is the only practical approach for irrigation canals, ditches, 

and drains under the statutory scheme of the Clean Water Act. Congress has not 

expanded the Federal agencies’ jurisdiction under the Clean Water Act since the initial regulations were promulgated in the 1970s. As a result, the Federal agencies 

should implement Congress’ determinations in their rulemaking, through the inclusion of an express exemption for irrigation canals, ditches, and drains from the definition of navigable waters, ‘‘Waters of the U.S.,’’ and tributary waters. 

The Federal Government has a vested interest in seeing that its Federal reclamation facilities are maintained in a condition that allows irrigation districts to 

properly operate and maintain their facilities for the continued conveyance of agricultural waters, and the drainage of these waters, to protect the water users and 

the public from deterioration and failure of these facilities. Irrigation Districts and 

15 

water providers maintain thousands of miles of canals and ditches and perform routine maintenance work in their conveyance facilities every year. If the Districts and 

water providers are required to obtain a CWA permit for each such activity, these 

routine activities would become exponentially more expensive, time consuming, and 

difficult. Irrigation Districts and water providers are also required to make more extensive improvements in the form of rehabilitation or replacement of some of the 

works from time to time. As demand for water in the West grows, water conservation activities such as lining or piping canals and drains are also commonplace activities. Without the ability to conduct these necessary activities, free from time 

consuming and costly Federal processes, agricultural water delivery, and many of 

the efforts aimed at improving efficiencies and conserving water, would be severely 

challenged, if allowed at all. Additionally, many of these facilities provide a flood 

control function. In such cases, regular maintenance activities to maintain channel 

capacity are necessary to protect life and property, and prevent serious flood damage to property. The proposed rule should focus on limiting the regulatory uncertainty of ‘‘Waters of the U.S.’’ and jurisdiction, and not create unnecessary burdens 

on entities such as irrigation districts and water suppliers, whose purpose and facilities have no relationship to the originally envisioned scope of the Clean Water Act. 

An increase in jurisdiction asserted by Federal agencies also increases the costs 

to the consumers—both agricultural and municipal users. This includes increased 

food costs to all, many of whom are least able to absorb the costs. These costs come 

without any real improvements in water quality and will likely divert resources 

away from improvements to other water quality issues. 

SUNNYSIDE VALLEY IRRIGATION DISTRICT

One of my clients is the Sunnyside Valley Irrigation District (‘‘SVID’’). SVID 

serves nearly 100,000 acres of land in the lower Yakima Valley. It provides water 

to some of the most productive farmground in the Nation with its farmers growing 

apples, cherries, pears, grapes, mint, hops, and other important food crops. 

Many years ago the Sunnyside Valley Irrigation District, along with the neighboring Roza Irrigation District joined together to voluntarily address water quantity 

and water quality projects. In a short 5-year period, 95 percent of the suspended 

sediment was removed from the return flows discharging back to the Yakima River. 

Twice the Irrigation Districts have received the State of Washington’s Environmental Excellence Award. Additionally, SVID has participated in a multi-year conservation project through the Federal Yakima River Basin Water Enhancement 

Project Act. This conservation project has increased efficiencies to its farmers within 

the project, plus will return over 43,000 acre feet per year for instream flows to the 

Yakima River for purposes of fish and other environmental benefits. The conservation program by SVID has received broad support from all parties in the Yakima 

River basin and has been recognized with awards both locally and nationally. 

Despite its leadership role in water conservation and improvements to water quality, SVID was the unfortunate subject of the uncertainty regarding ‘‘Waters of the 

United States’’ and jurisdiction by the Federal Government. In 2004, SVID was performing routine maintenance in a ditch within its system. Because the ditch had 

meandered over the years, it was creating erosion and drainage issues which needed 

to be fixed. The ditch was straightened and armored with rock to correct the problem. The activity performed by SVID was a routine action which is likely performed 

on an almost daily basis by other irrigation providers in the West. In SVID’s 100 

years of existence, at no time had it been advised that a Section 404 permit would 

be needed for such routine work. Later, a complaint was filed with the Army Corps 

of Engineers. The Corps investigated and advised SVID that project ditches were 

‘‘Waters of the U.S.’’ and therefore subject to the Corps’ Sec. 404 permitting process. 

SVID was advised by the Corps that SVID’s only option was to return the ditch 

back to its previous improperly working condition, and any permit request by SVID 

to do the repair work was likely to be denied. Despite its lack of expertise in the 

management of irrigation waters, the Corps added that in its opinion, the work performed on the irrigation ditch by SVID was not necessary or justified. The Corps 

also advised SVID that virtually all of the operation and maintenance activities that 

take place on a daily basis are subject to Corps jurisdiction; meaning that even if 

such activities were to fall under an exemption, contact must be made with the 

Corps for them to make that determination. In other cases where permits could be 

required, it was made clear the Corps would not approve much of the regular and 

necessary work needed by the Irrigation District to maintain its canals and ditches, 

and that requesting a permit to do such work could be futile. 

After 4 years of negotiation, numerous meetings and trips to Washington, DC to 

meet with EPA and the Corps, and the issuance of the Corps Regulatory Guidance 

16 

Letter 07–02, Exemptions for Construction or Maintenance of Irrigation Ditches and 

Maintenance of Drainage Ditches Under Section 404 of the Clean Water Act; the 

Corps eventually advised SVID that its work on the ditch did not require a permit. 

SVID and other water suppliers can neither afford to wait 4 years nor afford the 

costs for determinations as to whether a permit is required. 

We commend any attempt by the agencies to avoid similar circumstances from occurring again, but remain concerned the proposed rule contains uncertainties as to 

what is covered. Similar situations to SVID’s experience will continue to occur until 

there are clear definitions distinguishing between jurisdictional waters. The final 

rule should expressly provide that waters in irrigation canals, ditches, drains and 

other conveyance facilities are not navigable waters, waters of the United States, 

or tributary waters, and, therefore, are not subject to the Federal agencies’ jurisdiction under the CWA. This clarification is long overdue and we appreciate the 

Federal agencies’ willingness to tackle this important issue. 

EXEMPT WATER RECLAMATION, REUSE AND TITLE XVI FACILITIES

Reclaimed and reused water is a beneficial use that develops local water resources 

and reduces the demand for imported water. The processes for reclaiming and 

reusing water are costly, but are becoming increasingly feasible in areas of the country where groundwater and surface water sources are strained and the cost or availability of imported water are prohibitive. Water authorities across the country, 

especially those in the arid west, are investing millions of dollars in infrastructure 

to utilize this drought proof water resource. Treatment and distribution costs of recycled water are already high, making this valuable resource marginally cost effective in some places. Any significant increase in regulation will escalate the cost of 

utilizing this water and discourage its development. 

Under the proposed rule, water reclamation and reuse facilities are not exempt 

from being designated waters of the United States. Ditches that transport effluent 

or discharged water can easily meet the definition of ‘‘tributary’’ under the proposed 

rule and be categorically regulated as waters of the United States. The proposed 

rule defines as a ‘‘tributary’’ any natural or man-made feature that has a bed, bank, 

ordinary high water mark, and conducts flow to another water. Reclamation and 

reuse facilities are frequently located in a floodplain or otherwise adjacent to jurisdictional water where all waters are categorically defined as waters of the United 

States. While the proposed rule includes an exemption for artificial lakes and ponds 

used exclusively for settling basins, such reuse facilities can function or take on the 

characteristics of a wetland and can receive and discharge water into surface ditches 

that are not exempt. The proposed rule’s wastewater treatment exemption would 

not extend to an associated water reuse facility because such facilities are not expressly ‘‘designed to meet the requirements of the Clean Water Act,’’ a condition 

stipulated in the rule that would not cover a beneficial use not addressed in the Act. 

Western states like California acknowledge the value of recycled water and established a statewide goal (California Water Plan) of recycling 2.5 million acre feet of 

water by 2030. In 2009, .67 MAF was recycled; and increasing to 2.5 MAF is ambitious, but necessary to help drought-proof the state. Currently, 3.5 MAF of treated 

wastewater is being discharged to the ocean, and not beneficially reused. 

Eastern Municipal Water District (EMWD), a water and wastewater agency in 

southern California utilizes nearly 100 percent of the recycled water it generates, 

and recycled water comprises 30 percent of its entire water supply portfolio—over 

35,000 acre feet annually. With the assistance of the U.S. Bureau of Reclamation’s 

Title XVI program, EMWD has developed 5,714 acre-feet of seasonal storage, five 

million gallons of elevated storage (to pressurize the system), 200 miles of recycled 

distribution water pipeline, and 19 pumping facilities. EMWD currently has greater 

demand than supply for recycled water and in response has prepared unique allocations for customers. Under the proposed rule, 10 EMWD recycled water storage sites 

would become jurisdictional because they are located in floodplains, are adjacent to 

jurisdictional water, and likely possess a subsurface hydrologic connection. After becoming jurisdictional, regular maintenance and vegetation removal of these 500 

acres of ponds would require Sec. 404 permits. This added regulatory burden would 

not only increase the cost of recycled water, and potentially delay further development of recycled water storage ponds, but could hamper the development of this 

drought-proof water supply. Numerous agencies in the arid southwest share this 

scenario, concern, and dilemma. 

Water reclamation and reuse facilities should be expressly exempt from this rule. 

Particularly in times of drought such as the one that currently affects most western 

states, developing new sources of water for consumption should be encouraged. This 

rule could discourage water reuse and interfere with the successful deployment of 

17 

Title XVI programs. Of equal concern is that the economic analysis that accompanies the propose rule completely ignores the potential impact on water reuse. 

NWRA recognizes that water recycling and groundwater recovery projects will 

greatly improve western states’ water supply reliability and provide environmental 

benefits through effective water recycling and recovery of degraded groundwater. 

We appreciate the efforts of members on this committee who have worked to highlight the proposed rule’s potential impacts on water recycling. 

NWRA POSITION ON FOREST SERVICE GROUNDWATER MANAGEMENT DIRECTIVES

The EPA and Corps have consistently stated that they are not proposing to regulate groundwater. Unfortunately, it appears that the U.S. Forest Service (‘‘NFS’’ or 

‘‘Forest Service’’) is attempting to do just that. Its ‘‘Proposed Directive on Groundwater Resources Management’’ (‘‘Directive’’) is extremely troubling to water users. 

As currently drafted, the Forest Service Directive unnecessarily expands the reach 

of the Federal Government into an area generally regulated by the states. In this 

Directive, the Forest Service notes that they will apply Federal reserved water 

rights under the Winters doctrine to both surface water and groundwater. We question this claim and believe that the Directive goes far beyond the Forest Services’ 

legitimate authorities. 

The Forest Service Directive is contrary to long standing Federal policy respecting 

the role of states in regulating groundwater. The proposal threatens states rights 

and could adversely impact private property rights. In addition, we are very concerned that this Directive was developed in a vacuum without any meaningful outreach to water users. While we appreciate the opportunity to comment on the 

Directive, the lack of transparency surrounding its development is concerning. During a meeting with congressional staff and stakeholders the Forest Service told 

NWRA representatives that this policy had been in development for 8 years. NWRA 

staff asked if the agency had reached out to water users to discus this proposal during that time. Agency personnel answered that no, they did not reach out to water 

users during that 8-year period. 

The Directive would place additional permitting requirements on both existing 

and future water infrastructure. These permitting requirements would make meeting current and future water needs, and responding to climate variability, more difficult, more time consuming, and more expensive. The Directive would take water 

supply decisions out of the hands of water managers and put it in the hands of 

Forest Service employees who may have little or no experience in water management. 

The Directive states that the Forest Service will: ‘‘Deny proposals to construct 

wells on or pipelines across NFS lands which can reasonably be accommodated on 

non-NFS lands.’’ The rule does not define ‘‘reasonably.’’ This requirement is excessively ambiguous and ignores the fact that water infrastructure can be constructed 

in a manner that benefits both people and the environment. Evaluating all alternatives could be a very time consuming process, and could delay already planned 

and vital water projects. There are few other ‘‘reasonable’’ alternatives to developing 

facilities off of NFS lands in the mountains of the western United States. 

The Forest Service is openly embracing a policy that they know will directly increase water costs for people throughout the West. 

The Forest Service also states that they will work to apply new permit requirements to new and existing groundwater wells and water pipelines. We are concerned that the Forest Service will attempt to tie permit approval to the modification of a state issued water right. The Forest Service has already attempted this 

in regard to ski area permitting and we are concerned that the agency will attempt 

to apply similar policies to water users. 

Although the Directives provide for collaboration with other Federal agencies, 

such as experts from the USGS, state, tribal, and local agencies, and other organizations; noticeably absent is the Bureau of Reclamation, Irrigation Districts, and other 

water providers who are the largest distributors and users of water resources, many 

of which have existing water systems on Forest Service lands. 

The Forest Service is also assuming the role of states by an evaluation of all applications not only on Forest Service lands, but also on applications on adjacent 

lands. There is no clear definition of ‘‘adjacent.’’ If the Forest Service believes all 

waters are in hydraulic continuity, will they assert all state water right applications 

must be evaluated by the Forest Service regardless of the distance from their boundaries? 

In the Yakima Basin, after decades of fighting resulting in inaction, water users 

representing agriculture; municipal; tribal; and environmental interests throughout 

the region put aside their differences to craft a water plan that meets everyone’s 

18 

needs; the Yakima River Basin Integrated Water Resource Management Plan. The 

Yakima Integrated Plan provides both instream and out-of-stream benefits by: 

• Providing more water for stream flows that fish need to survive. 

• Building fish passage to allow salmon, steelhead, and bull trout to travel 

throughout the basin, and reestablishing what could be the largest sockeye 

run in the lower 48 after extirpation from the Yakima Basin over a century 

ago. 

• Providing greater water supply reliability for farmers and communities. 

• Securing the water that communities need to meet current and future 

demand. 

• Protecting over 200,000 acres of currently unprotected forest, shrub steppe, 

and river habitat. 

• Stretching the amount of water available by using it more efficiently. 

• Enhancing habitat along the Yakima River and its tributaries. 

Essential elements to the Yakima Basin Integrated Plan are improvements to reservoirs located on Forest Service lands that provide vital water to the Yakima River 

basin for fish, cities, and agriculture. These reservoirs have been in place and in 

use for many years and are the lifeblood to the communities and people served by 

the reservoirs. The Forest Service Directive could delay or derail the implementation of this vital, innovative, and broadly supported plan, including already approved projects which will provide water for fish and habitat. 

NWRA members remain dedicated to providing a safe, reliable and affordable 

water supply in an environmentally responsible manner. We are concerned that the 

Forest Service Directive will make meeting future water supply needs exponentially 

more difficult and will not provide any additional environmental benefit. 

SUMMARY

NWRA members, both agricultural and municipal water providers, and the farmers and water users they represent, support the goals of the Clean Water Act and 

are committed to working with the agencies in a collaborative manner that respects 

states rights. Our members have, and will continue to meet their obligations to provide an efficient and safe water supply and remain dedicated to the protection of 

our natural resources. 

Unfortunately, the CWA proposed rules could impose additional regulatory burdens on water suppliers, farmers, local communities, and economies, with only marginal environmental benefits. Many geologic and man-made water related features 

common to the arid West, including ditches, dry arroyos, washes, and ephemeral 

streams that flow only in response to agricultural return flows or infrequent storm 

events will now become subject to Federal jurisdiction and permitting; negatively 

impacting the ability of suppliers to timely and efficiently maintain their systems 

and supply critical water to the water users. 

NWRA also has many of the same concerns with the Forest Service Groundwater 

Management Directives. The Forest Service is attempting to assert authority over 

groundwater and surface water decisions which are beyond its authority and within 

the scope of the states’ jurisdiction on water rights. The Forest Service needs to pull 

back on its regulatory overreach. 

We thank you for this opportunity to testify. Despite our concerns, NWRA and 

its members are committed to assisting Congress and the agencies to address these 

issues in providing certainty to jurisdictional requirements under the Clean Water 

Act. . On behalf of NWRA’s members I thank you for your attention to the critical 

water supply issues facing our Nation, and for supporting our members as they continue to be stewards of our Nation’s water supply and a critical part of the economy. 

19 

ATTACHMENT

EASTERN MUNICIPAL WATER DISTRICT

The facilities pictured below offer just a few of the many examples of EMWD water 

and recycled water facilities that are in jeopardy of becoming waters of the United 

States under U.S. EPA’s proposed rule defining waters of the United States. 

Example 1—Sun City Ponds (Near Salt Creek, Perris), Water Reuse 

Facilities 

Unlined ponds are adjacent to a creek, and have a subsurface connection to Salt 

Creek. 


88504.001.eps
20 

Example 2—Alessandro Ponds (Near San Jacinto River), part of Water 

Reuse Facilities 

Recycled water storage ponds that could become jurisdictional based on adjacency, 

subsurface hydrologic connection, and the location in the flood plain of the San 

Jacinto River. 


88504.002.eps
21 

Example 3—Well Blowoff and Recharge (Mountain Avenue 2 Recharge 

Pond, part of future for groundwater banking, recharge site) Wells 33, 

80 and 36, potable water system 

Unlined pond is adjacent to the San Jacinto River, and has a subsurface connection to the river. This is a closed groundwater basin, there is no subsurface outflow. 

Groundwater recharge sites are often located adjacent to, but not within riverbeds. 


88504.003.eps
22 

Example 4—Well Blowoff Pond (Lakeview on Nuevo Road), potable water 

system 

This unlined pond is about 2,000 feet from the San Jacinto River and is in the 

100-year flood plain. Overflow from this facility is tributary to the San Jacinto 

River. 


88504.004.eps
23 

Mr. MCCLINTOCK. Thank you, Mr. Martin, for your testimony. 

I now recognize Mr. Patrick Tyrrell, State Engineer for the State 

of Wyoming from Cheyenne, Wyoming to testify. 

STATEMENT OF PATRICK TYRRELL, STATE ENGINEER, STATE 

OF WYOMING, CHEYENNE, WYOMING 

Mr. TYRRELL. Chairman McClintock, Ranking Member 

Napolitano, and members of the subcommittee, my name is Patrick 

Tyrrell. I am the Wyoming State Engineer. My office is responsible 

for the issuance and administration of rights to surface and 

groundwater, both of which lay under the ownership and control of 

the State of Wyoming. 

I appreciate the opportunity to testify regarding the Proposed 

Directive on Groundwater Resources Management, Forest Service 

Manual 2560, noticed in the Federal Register on May 6, and on 

Wyoming’s perspective regarding the Clean Water Act jurisdiction 

rule that the EPA and the Corps of Engineers published in the 

Federal Register on April 21. 

Regarding the Forest Service proposed directive, it is intended to 

add Federal management responsibilities for groundwater to USFS 

land. It changes the Forest Service national policy on water management and challenges Wyoming’s authority over groundwater 

within our borders, including Wyoming’s primacy in appropriation 

and administration of that groundwater. 

The assumptions, definitions, and new permitting considerations 

contemplated materially interfere with Wyoming’s authority over 

surface and groundwater. Our concerns are, first, that the Forest 

Service fails to provide any substantive citation with explicit authority to manage groundwater because there is no such authority 

under Federal law. 

In Section 2567, the proposal appears to assert reserved rights 

to groundwater. However, there is no authority giving National 

Forest the benefit of a Federal reserved right to groundwater. 

The proposed Directive seeks to give a role for the Forest Service 

to assert itself uniquely in groundwater permitting decisions on 

lands not part of, but adjacent to, Forest Service property. 

Wyoming water law controls the issuance and regulation of all 

water rights, including those on Forest lands within the state. 

The Forest Service also assumes for management purposes that 

groundwater and surface water are connected unless demonstrated 

otherwise, an assumption that runs counter to Wyoming’s presumption of non-connection, which is superior. 

In 2012, the Forest Service in the State of Wyoming entered into 

a Memorandum of Understanding that runs until 2016. In this 

MOU the Forest Service agreed to recognize and respect the laws 

and Constitution of the State of Wyoming and permitting practices 

that apply equally to the United States and to water right applications by our citizens. 

The proposed directive contains several positions foreign to that 

MOU. By noticing the State of Wyoming along with the general 

public on the May 6 release, the Forest Service denied the state an 

important consultative role counter to Executive Order 13132. 

The State of Wyoming is more than a simple stakeholder, and we 

expect true consultation to occur. In short, the Forest Service 

24 

should retract the directive and honor the state’s authority over the 

issuance, adjudication and administration of water rights within 

our boundaries. 

Regarding the ‘‘Waters of the U.S.’’ jurisdictional rule, the Clean 

Water Act limits Federal jurisdiction over state waters, recognizing 

that the states are better situated to make decisions regarding 

water, including water quality in minor waters that are not of national significance. 

By broadening definitions of existing regulatory categories, such 

as tributaries, and regulating new areas that are not jurisdictional 

under current regulations, the proposed rule provides no limit to 

Federal jurisdiction. While EPA and the Corps have added a specific statement in the proposed rule that excludes groundwater, 

shallow subsurface flows are still to be used to establish jurisdictional nexus. 

Clean Water Act regulations cannot be applied to distinct surface 

waters connected to shallow subsurface waters without risking expansion of jurisdiction over all groundwater. 

The proposed rule defines all ditches with a bad bank and high 

water line as tributaries potentially subject to Federal jurisdiction. 

This accompanies what was earlier described as roadside irrigation 

or storm water ditches. While there remains an exemption for 

ditches that do not contribute flow to waters identified as navigable, there is no bright line rule that excludes ditches under the 

proposal. 

Semi-arid Wyoming had an amazing 3,200 miles of ditches at 

statehood in 1890, and all are apparently at risk now. Wyoming is 

concerned that EPA and the Corps are attempting to implement a 

policy that all connections between waters are significant without 

regard to how much or how often they actually contain water or influence truly navigable waters. 

The proposal expands the Clean Water Act regulatory coverage 

of tributaries and includes broad new categories such as ditches, 

adjacent waters, riparian areas, and floodplains, making the 

changes sweeping in nature. The proposed rule contains a confusing list of exemptions, including the narrow ditch exemption I 

described. These exemptions apply to a limited set of features applicable wholly on uplands, another critical term which is undefined. 

It is imperative that with a rulemaking process which directly affects the state’s implementation as co-regulators of Clean Water 

Act programs that significant input and review be provided to coregulator entities on the substance of the proposed rule. However, 

Wyoming and other states were not consulted early in the rulemaking process. 

Thank you for the opportunity to testify here today. 

[The prepared statement of Mr. Tyrrell follows:] 

PREPARED STATEMENT OF PATRICK TYRRELL, P.E., WYOMING STATE ENGINEER, 

CHEYENNE, WYOMING

Introduction 

Chairman McClintock, Ranking Member Napolitano, and members of the subcommittee, my name is Patrick Tyrrell. I am the Wyoming State Engineer. The 

Wyoming State Engineer’s Office is responsible for the administration, regulation, 

25 

and adjudication of water rights to surface and groundwater, both of which lay 

under the ownership and control of the State of Wyoming. 

I appreciate the opportunity to first testify today regarding the Proposed Directive 

on Groundwater Resources Management, Forest Service Manual 2560, (hereafter the 

‘‘Proposed Directive’’) noticed in the Federal Register on May 6, 2014. Second, I will 

comment on Wyoming’s perspective regarding the Clean Water Act (CWA) jurisdiction rule the Environmental Protection Agency (EPA) and the U.S. Army Corps of 

Engineers (the Corps) proposed on March 25, and published in the Federal Register 

on April 21. 

FOREST SERVICE PROPOSED DIRECTIVE

Background 

The United States Forest Service (USFS) asserts that its Proposed Directive is intended to add Federal management responsibilities for groundwater on USFS lands 

(79 FR 25815, May 6, 2014). It changes the Forest Service’s national policy on water 

management and challenges Wyoming’s authority over groundwater within our borders, including Wyoming’s primacy in appropriation, allocation and development of 

groundwater. The USFS states that this Proposed Directive does not harm state 

rights. This is not accurate. The assumptions, definitions, and new permitting considerations contemplated under the Proposed Directive materially interfere with 

Wyoming’s authority over surface and groundwater, and will negatively impact the 

state’s water users. 

Concerns 

The Proposed Directive challenges state prerogatives. 

1. Authority for the Proposed Directive on groundwater management does not 

exist. The USFS fails to cite any Federal statute or court ruling which provides for or describes its authority to manage groundwater because there is 

no such authority under Federal law. In section 2567, the Proposed Directive 

appears to assert reserved rights to groundwater. However, there is no authority giving National Forests the benefit of a Federal reserved right to 

groundwater. 

2. The Proposed Directive seeks to give a role in paragraph 6f for the USFS to 

insert itself in groundwater permitting away from USFS property. This is an 

extra-territorial reach beyond USFS authority, and conflicts with Wyoming 

water law which establishes the Wyoming State Engineer as the exclusive 

permitting agency. It also places a burden on water users who might have 

their water source proposal thwarted by USFS action. Under Wyoming law, 

the burden would lie with the USFS to prove a hydraulic connection sufficient 

to warrant conjunctive administration, not on individual appropriators as 

presumed by the Proposed Directive. In many cases, groundwater is not 

meaningfully connected to surface water, and Wyoming’s presumption of nonconnection is superior. This is not to concede that there is even a legal basis 

for a debate on this subject, since Wyoming water law controls the permitting, 

adjudication, and regulation of water rights on USFS lands within the state. 

It is entirely inappropriate for the USFS to attempt to extend its administrative reach onto lands they do not manage. 

3. Conflict with recent MOU. In January 2012, the USFS and the State of 

Wyoming entered into a Memorandum of Understanding (MOU) that runs 

through 2016. In this MOU, the USFS agreed to recognize and respect the 

laws and Constitution of the State of Wyoming and to honor permitting practices that apply equally to the United States and to water right applications 

by Wyoming citizens. The Proposed Directive, creating a Federal reach into 

an area where states have been recognized as the exclusive entity for water 

right permitting, is contrary to the recent MOU. (A copy of the MOU has been 

retained in the Committee’s official files) 

4. The Proposed Directive puts a burden on Wyoming water users. From the proposed required measurement and reporting of produced groundwater (paragraph 8), to the possible hydrogeologic studies needed to show that an aquifer 

is not connected to surface waters (paragraph 2), Wyoming appropriators will 

be faced with a new slate of obligations and costs for water use on these public lands. 

5. The Proposed Directive was created without state consultation. By noticing the 

State of Wyoming along with the general public in the May 6 release, the 

USFS denied the state an important consultative role. As the primary water 

manager in an appropriative state like Wyoming, the State Engineer’s Office 

26 

is more than a simple stakeholder—we follow a system of water laws under 

which the Federal agencies are water users like anyone else. Treating the 

state as a simple commenter on Federal directives ignores the state’s primary 

authority as recognized by Congress dating from the 1800s including the 

McCarran Amendment (relied upon by the states since 1952), and the U.S. 

Supreme Court. Importantly, the notice indicates that USFS has consulted 

with Indian Tribal Governments in preparation of this document under E.O. 

13175, but for some reason has decided not to enter consultation with the 

states under E.O. 13132. This action wrongfully diminishes Wyoming’s role. 

Time prohibits me from additional comment at this hearing, but I anticipate that 

Wyoming will prepare additional and thorough comments by the comment deadline 

established by the USFS. The best action the USFS could take would be to retract 

the current notice and comment period and thereby honor the law that give the 

states authority over the adjudication, administration and regulation of water rights 

within their boundaries. 

WATERS OF THE U.S. (WOTUS) JURISDICTIONAL RULE

Background 

The Clean Water Act limits the Federal jurisdiction over state waters recognizing 

that the states are better situated to make decisions regarding water, including 

water quality in minor waters that are not of national significance. The Wyoming 

Department of Environmental Quality, Water Quality Division is the agency responsible for establishing water quality standards and TMDLs, administering the 

NPDES discharge permitting program and providing section 401 water quality certifications for federally permitted projects on waters in Wyoming. The proposed rule 

attempts to erode Wyoming’s primary authority over low flow, remote, headwater 

stream channels and isolated ponds and wetlands by expanding the concept of national significance. 

Concerns 

1. The proposed WOTUS rule expands Federal jurisdiction beyond Federal authority. By broadening definitions of existing regulatory categories, such as 

‘‘tributaries,’’ and regulating new areas that are not jurisdictional under current regulations, the proposed rule provides no limit to Federal jurisdiction. 

Water in a riparian area or a floodplain, a connection through shallow subsurface water or directly or indirectly through other waters, and aggregation 

of similarly situated waters, are waters that may not be within Federal jurisdiction but are waters that the proposed rule attempts to capture. 

a. The proposed rule’s extension of jurisdiction to remote and insubstantial 

waters runs afoul of both the plurality and Justice Kennedy’s standards 

in Rapanos. The plurality in Rapanos declined to find jurisdiction beyond 

‘‘relatively permanent, standing or continuously flowing bodies of water,’’ 

specifically excluding ‘‘channels through which water flows intermittently 

or ephemerally, or channels that periodically provide drainage for rainfall.’’ Rapanos v. United States, 547 U.S. 715, 739–42 (2006). Likewise 

Justice Kennedy refused to find jurisdiction over ‘‘remote and insubstantial’’ waters that ‘‘may flow into traditional navigable waters.’’ Id. at 778. 

b. Asserted Jurisdiction over groundwater. The proposed rule does not ensure that Wyoming’s groundwater is off limits. While EPA and the Corps 

have added a specific statement in the proposed rule that excludes 

groundwater, they continue to assert that shallow subsurface flows could 

be used to establish jurisdictional nexus. In Wyoming, surface and 

groundwater quantity are regulated separately unless they are determined to be a single source of supply. That determination is exclusively 

within the purview of the Wyoming State Engineer. As a practical matter, 

CWA regulations cannot be applied to distinct surface waters connected 

only through subsurface waters without expanding jurisdiction over all 

groundwater in contravention of the Wyoming Constitution and without 

any authority to do so. 

c. Clean Water Act success depends upon state and local implementation. Expansion of EPA and Corps jurisdiction over any waters not previously considered as WOTUS is not justified by science, fact or law. The states are 

in the best position to protect and manage these waters. 

2. Problem elements of the proposed rule. 

27 

a. Jurisdiction over ditches. The proposed rule defines all ditches with a bed, 

bank and high water line as tributaries potentially subject to Federal jurisdiction. This encompasses roadside, irrigation, and storm water ditches. 

There remains an exemption for ditches that do not contribute flow, either 

directly or indirectly, to water identified as navigable, interstate waters, 

territorial seas, and impoundments. However, the ‘‘waters are muddied’’ 

which places citizens, governments, and other entities in a position that 

they can no longer rely on the workable bright line rule categorically excluding ditches. This will disrupt agricultural, governmental and emergency operations. 

b. The rule does not clarify which waters fall under CWA jurisdiction (unless 

we are to assume that nearly all waters fall under such jurisdiction) and 

in fact, creates confusion and potential conflict with the Supreme Court’s 

interpretation. Given the expedited review timeline and the glaring lack 

of state involvement, Wyoming is concerned that EPA and the Corps are 

attempting to implement a policy decision that all connections between 

waters are ‘‘significant’’ without regard to how much or how often they 

actually contain water or influence truly navigable waters. 

The proposed rule establishes newly created, far-reaching consequences 

and key concepts are undefined and subject to agency discretion. The rule 

fosters subjectivity—a result diametrically opposed to principles of regulation, leaving us to question the authoring agencies’ intent. The proposal 

expands the CWA’s regulatory coverage of tributaries and includes broad 

new categories of waters, such as ditches, adjacent waters, riparian areas 

and floodplains, making the changes sweeping in nature and negative in 

consequence. 

c. Vague exemptions. The proposed rule contains confusing list of exemptions, including the narrow ditch exemption. These exemptions apply to 

a limited set of features applicable wholly on uplands (another critical 

term left undefined in the proposed rule). It is noteworthy that in the 

rule’s preamble, EPA and the Corps acknowledge the difficulty of distinguishing excluded ‘‘gullies and rills’’ from potentially regulated ‘‘ephemeral streams.’’ 

3. Flaws with the Science Advisory Board Report 

a. The Science Advisory Board Report is void of information from actual 

Corp Section 404 and 401 determinations or state environmental quality 

offices. If the draft Report had included this information, it is difficult to 

conceive that a neutral reviewer would have supported the proposed CWA 

rulemaking and the conclusions outlined in the Connectivity Report. 

b. The Science Advisory Board lacked any state representative, even though 

states like Wyoming specifically requested to have a member of its regulating agency appointed. Conversely, environmental interests were represented on the Board. The states’ role would be better protected by state 

representation on the Board, and more effective CWA policies and regulations would result. 

c. The Connectivity Report fails to adequately address ephemeral drainages 

and their impact to downstream waters of the United States. Ephemeral 

water bodies may be streams, wetlands, springs, streams, ponds or lakes 

that only exist for a short period of time following precipitation or 

snowmelt. Under this rule, ephemeral streams might now be considered 

tributaries to navigable streams if they exhibit a bed, banks and a high 

water mark. Jurisdictional determination of these waters would require 

application of principals announced in Rapanos, which cannot be met 

through sweeping statements which attempt to alter the definition and 

are unrelated to actual characteristics of the water body. 

d. The EPA and the Corps expedited submittal of the draft Connectivity Report to the EPA Science Advisory Board and, at the same time, they submitted the proposed rule to OMB. This action cuts off scientific deliberation vital to the fundamental questions underlying this proposed rule. 

4. The proposed WOTUS rule was also created without state consultation. Like 

other states, the State of Wyoming plays a significant role in ensuring effective implementation of the Clean Water Act. Our co-regulator status elevates 

the State of Wyoming, and every other state, above the multitude of other 

stakeholders now engaged in the public review process. It is imperative that 

with a rulemaking process of this magnitude, which directly impacts the 

28 

states’ implementation of CWA programs, that significant input and review 

be provided to co-regulator entities on the substance of the proposed rule. 

However, Wyoming and other states were not included in the WOTUS rulemaking process. 

As state co-regulators, we bring a unique perspective on the western environmental issues that we handle day to day. Failing to consult with Wyoming 

and other states not only violates executive and congressional mandates, but 

also erodes the very trust and cooperation upon which we co-regulators depend. The process employed here adds insult to the injury inflicted by an illegal and unwise rule. 

The Wyoming State Engineer administers water quantity. Questions related specifically to water quality may be best answered by the Wyoming Department of 

Environmental Quality. If questions arise that I cannot answer, I will provide written answers to the subcommittee after consulting with the appropriate expert. 

Thank you for the opportunity to testify here today. 

Mr. MCCLINTOCK. Thank you, Mr. Tyrrell. 

I now recognize Mr. Andrew Lemley, a Government Affairs 

Representative for New Belgium Brewing Company based in Fort 

Collins, Colorado, to testify. 

STATEMENT OF ANDREW LEMLEY, GOVERNMENT AFFAIRS 

REPRESENTATIVE, NEW BELGIUM BREWING COMPANY, 

FORT COLLINS, COLORADO 

Mr. LEMLEY. Thank you, Chairman McClintock, Ranking 

Member Napolitano, and committee members, for your time this 

morning. 

My name is Andrew Lemley, and it is an honor and a privilege 

to be here this morning representing my 550 co-workers and fellow 

employee owners at New Belgium Brewing Company. 

The main message I have here today is that we depend on clean 

water for our success. Beer is, after all, at least 90 percent water, 

and that is why, frankly, we are pleased that the Environmental 

Protection Agency issued these new draft rules, to clarify protections for water bodies under the Clean Water Act. This action by 

the EPA gives us the confidence that our growing brewery needs. 

We will continue to grow if we can count on clean water, which is 

essential to brewing our beers and being a prosperous business. 

Our journey in crafting world class beers and running a successful business show just that. Over the past 23 years, we have 

learned that when smart regulation exists for all and when clean 

water is available for all, that business thrives. We have grown 

from the basement of our co-founder’s home to a 900,000 barrel 

brewery in Fort Collins, Colorado, and right now as we sit here, we 

are building another 500,000 barrel brewery in Asheville, North 

Carolina. 

We have been able to grow from 2 to 550 co-workers because of 

the protection that the EPA and Army Corps of Engineers guarantee for our water supply. Clarity in regulation and the protection 

of natural resources are keys to economic development. 

We believe that the administration’s Clean Water Rule would restore clear national protections against unregulated pollution and 

destruction for nearly two million miles of streams and tens of millions of acres of wetlands in the continental United States. 

29 

The cost-benefit analysis done for the Clean Water Rule by the 

EPA estimates that it would generate between $388 million and 

$514 million in economic benefit, exceeding the expected costs. 

That is one of the reasons that the American Sustainable Business 

Council, of which we are business partners, supports it. 

Clean water is part of our own triple bottom line business model. 

We focus on making a profit, caring for the planet, and doing what 

is right for people, and our journey has led us to take innovative 

steps to reduce our impact on the water supply. We have built an 

onsite wastewater treatment plant. We have cut water use, and we 

give dollars directly to nonprofit organizations engaged in water 

conservation and restoration. 

We do what we can to honor the environment in our own process. 

We advocate for sound policies, and we give dollars directly to organizations doing work to clean up our rivers, lakes and streams. 

Making world class beer, being profitable, and honoring the environment, for us, go hand in hand. 

The craft beer industry in the United States is thriving. In 

Colorado alone, we have over 240 licensed brewers that employ 

over 5,000 people. Nationwide the numbers are over 27,000 craft 

brewers that employ over 110,000 people, and we rely on clean, 

plentiful water supplies to craft great beers and employ tens of 

thousands of Americans, and these jobs are jobs that cannot be 

outsourced. They range from technicians on bottling lines to brewers, to microbiologists, to chemists, to human resources professionals, to sales and marketing professionals, and everything in 

between. These are good jobs to growing companies, and we rely on 

responsible regulations that limit pollution and protect water at its 

source. 

In addition to water as a beer ingredient, we also rely on clean 

water nationwide to be available for barley, hops—thank you, 

Yakima Valley—and other agricultural products that we use. 

I am certain that some will see a downside, we have heard some 

of that already this morning, to these protections and worry about 

higher costs, but we just think that is a misguided view. Under 

these new safeguards, we believe that hundreds of communities 

will now enjoy the full protections of our Nation’s clean water laws. 

According to EPA’s analysis, in Colorado alone, more than 3.7 

million Coloradans get drinking water from systems drawing in 

whole or in part from intermittent ephemeral or headwater 

streams. We believe that we have the opportunity and responsibility for thriving businesses like New Belgium to do everything in 

our power to protect the water that we need to grow our company 

and expand local economies in which we work. 

I thank you again for the opportunity to be here and testify in 

front of you. 

[The prepared statement of Mr. Lemley follows:] 

PREPARED STATEMENT OF ANDREW LEMLEY, GOVERNMENT AFFAIRS REPRESENTATIVE, 

NEW BELGIUM BREWING COMPANY, FORT COLLINS, COLORADO

Mr. Chairman, committee members, thank you for your time this morning. My 

name is Andrew Lemley, and it is an honor and a privilege to be here today representing my 550 co-workers and fellow employee owners of New Belgium Brewing 

Company in Fort Collins, Colorado. 

30 

We depend on clean water for our success. Beer, after all, is 90 percent water. 

That’s why we’re pleased that the Environmental Protection Agency (EPA) issued 

new draft rules to clarify protections for water bodies under the Clean Water Act. 

This action by the EPA gives us the confidence that our growing brewery needs. We 

will continue to grow if we can count on clean water which is essential to brewing 

our beers and being a prosperous business. 

It makes sense to protect tributary streams and nearby waters—the science 

shows, without doubt, that they are linked to downstream water quality. And other 

waters should be protected when they have similar impacts downstream. Not polluting those resources, and minimizing your impact when you do, is just being a 

good neighbor—something that we at New Belgium Brewing strive to do in our operations. 

Our journey in crafting world class beers and running a successful business show 

that. Over the past 23 years we’ve learned that when smart regulation exists for 

all—and when clean water is available for all business thrives. We’ve grown from 

the basement of our co-founders’ house in Fort Collins to our 900,000 barrel per 

year brewery in Fort Collins, Colorado. We’re also building a new 500,000 barrel 

brewery in Asheville, North Carolina. We have been able to grow from 2 to 550 coworkers because of the protection that the EPA and Army Corps of Engineers guarantee for our water supply. 

Clarity in regulation and the protection of natural resources are keys to economic 

development. 

The administration’s Clean Water Rule would restore clear national protections 

against unregulated pollution and destruction for nearly two million miles of 

streams and tens of millions of acres of wetlands in the continental United States. 

These water bodies prevent flooding, filter pollution, supply drinking water to millions of Americans, and provide critical fish and wildlife habitat. What’s more, they 

provide these valuable services for free. In fact, the cost-benefit analysis done for 

the Clean Water Rule estimates that it would generate between $388 million and 

$514 million per year in economic benefits, far exceeding expected costs ($162 to 

$278 million annually). That’s one of the reasons the American Sustainable 

Business Council so strongly supports it. 

Clean water is a part of our own triple bottom line business model. We focus on 

making profit, caring for the planet and doing what is right for people. Our journey 

has led us to take innovative steps to reduce our own impact on the water supply. 

We’ve built an onsite process wastewater treatment plant. We’ve cut water use. We 

give philanthropic dollars to nonprofits engaged in water conservation. In 2013 we 

gave grants to 22 groups engaged in water conservation and restoration activities. 

We do what we can to honor the environment in our own process. We advocate for 

sound policies. We give dollars directly to nonprofit organizations doing the work to 

clean up our rivers, lakes and streams. 

Making world class beer, being profitable and honoring the environment for us go 

hand in hand. Our beer lovers appreciate and respect our work with philanthropy 

and advocacy for clean water. They know that our efforts result in making great 

beer, protecting drinking water and having great recreational waters. They appreciate that we take steps to make sure our business, our country and our planet are 

on a course that can be sustained for future generations. 

And it’s not just us. The craft beer industry in the United States is thriving. In 

Colorado alone we have over 242 licensed breweries employing over 5,000 people. 

Nationwide there are 2,722 craft breweries employing 110,000 people. We rely on 

clean, plentiful water supplies to craft great beers and employ tens of thousands of 

Americans. These jobs cannot be outsourced and they range from production technicians to brewers to microbiologists and chemists to sales and marketing, human resources (or co-workers and culture as we call it) and everything in between. These 

are good jobs at growing companies. We rely on responsible regulations that limit 

pollution and protect water at its source for our growth. 

In addition to water as a beer ingredient we also rely on clean water nationwide 

to be available for barley, hops and other agricultural products that we use. 

I’m certain that some will see a downside to these protections and worry about 

higher costs. This is a short sighted view and misguided. I mentioned that we are 

building a new brewery in Asheville, North Carolina. One of the reasons that we 

chose Asheville is its abundant and clean water supply. And just this spring a coal 

ash pond broke through its banks and is causing a massive cleanup effort that will 

cost millions. No one benefits from occurrences like these. The company responsible 

for cleanup pays, and my co-workers and I worry about the next human caused disaster that will threaten our livelihood. 

Under the new safeguards proposed by the Obama administration, hundreds of 

communities will now enjoy the full protections of our Nation’s clean water laws. 

31 

Bringing these streams and wetlands under the umbrella of the Clean Water Act 

will also help protect drinking water for 117 million people. It will safeguard natural flood protection, since wetlands and streams help catch and soak up rain. This 

is no small benefit; 9.6 million homes and $360 billion dollars-worth of properties 

lie in flood-prone areas. We witnessed firsthand in the last 2 years how wildfires 

and floods can affect the water supply. We do not need the added anxiety of human 

introduced pollutants in wetlands, headwaters and streams. 

According to the EPA’s analysis, more than 3.7 million Coloradans get drinking 

water from systems drawing in whole or part from intermittent, ephemeral or headwater streams. http://water.epa.gov/lawsregs/guidance/wetlands/upload/2009_12_28_ wetlands_science_surface_drinking_water_surface_drinking_water_results_state.pdf. 

We have the opportunity and the responsibility for thriving businesses like New 

Belgium to do everything in our power to protect the water that we need to grow 

our company and expand the local economies in which we work. We are in the midst 

of a public comment process on this rule—comments are being accepted until October. While there have been numerous attempts to stop this process, we think this 

is a mistake—it would effectively cut off the open opportunity for people who care 

about their water to ask the agencies to protect these resources and determine the 

best way to do so. 

Thank you again for this opportunity. 

Mr. MCCLINTOCK. Thank you, Mr. Lemley. 

I now recognize Mr. Randy Parker, Chief Executive Officer of the 

Utah Farm Bureau Federation from Sandy, Utah to testify. 

STATEMENT OF RANDY PARKER, CHIEF EXECUTIVE OFFICER, 

UTAH FARM BUREAU FEDERATION, SANDY, UTAH 

Mr. PARKER. Mr. Chairman, Ranking Member and committee 

members, my name is Randy Parker. I am CEO of the Utah Farm 

Bureau Federation. I am here today representing more than 28,000 

member families in Utah and more than six million member families across the country. It is an honor to be here with you today. 

Farm Bureau members are greatly concerned with the expansion 

of government regulations, including challenges to sovereign state 

water rights and historic livestock grazing on public lands. Federal 

agencies are hurting hard working farm and ranch families who 

pay taxes and contribute to their local economies. 

As a country we are at a crossroads. Today we see more aggressive control of our natural resources through growing government 

rules and regulations, while the Federal agencies ignore congressional limits in place to protect the historic Federal-state 

framework. Federal agencies are testing the boundaries of their 

regulatory authority as witnessed by EPA’s expansion of the Clean 

Water Act and ‘‘Waters of the United States’’ as well as global 

warming regulations. 

Now, the Forest Service has served notice that they, too, want 

greater command and control, challenging the sovereign rights of 

the states as established by Congress. To be clear, the waters originating within the boundaries of the State of Utah, including on the 

lands managed by the Forest Service, are not the waters of the 

Federal Government, nor are they the waters of the American people. They are the sovereign waters of the State of Utah and belong 

to the citizens of Utah. 

Grazing livestock on lands held in common has been a part of 

Utah’s landscape since our pioneer settlement. These lands serve 

the common good of the people just as the 1960 Multiple Use 

Sustained Yield Act requires that the public lands meet and serve 

32 

human needs. The regulatory culture of the Forest Service has dramatically increased the level of uncertainty. According to Nevada 

Federal Judge Robert Jones, the history of the Forest Service is 

about seeking reductions in AUMs and even elimination of cattle 

grazing. 

For Utah, that is a stark reality. According to Utah State 

University, in 1940 the Forest Service administered 2.7 million 

sheep and cattle AUMs in Utah. In 2012 that number was 614,000, 

or a whopping 78 percent reduction in grazing AUMs. 

The State of Utah ranchers and sportsmen have invested tens of 

millions of dollars into habitat restoration on public lands to increase livestock and wildlife feed. Although there is more feed to 

eat, the Federal land management agencies continue to cut or suspend grazing permits. The Forest Service Directive is another challenge to state authority. The Forest Service has a long history of 

actions seeking to soak up more state water rights, including 

16,000 diligence claims in Utah, ownership of ski area water rights, 

joint ownership of livestock water rights, fencing cattle off of their 

water, and cutting livestock grazing AUMs that gives the Federal 

Government de facto water rights. 

The Agency argues the directive is not regulatory. However, the 

Forest Service directive system requires its employees to implement the manual, and failure to do so has consequences. 

With 70 percent of Utah’s waters originating on Forest lands, 

connectivity creates a major shift of jurisdictional bounds. The 

Utah State Engineer is concerned for the uncertainty created with 

state sanctioned existing water rights. The Utah Constitution protects private property against government taking or diminishment 

of value, and that includes water. 

The Forest Service is seeking Federal supremacy over state 

water rights by imposing permitting written authorization and reporting. This costly and time consuming process overlaid on state 

regulatory functions will cause confusion and is detrimental to the 

economic future of states that rely on water flowing from the 

Forest system lands. The agency’s ongoing obsession with obtaining 

water rights and massive watershed management sets up a major 

Federal-state conflict. The Forest Service is carrying out this broad 

objective at taxpayer expense in direct competition for waters originating on the system lands with communities, farmers and ranchers and future economic growth. The USDA says the directive is not significant at $100 million a 

year. That analysis is shocking. Water is the economic lifeblood of 

the West. Regulatory actions against grazing cattle or reducing 

water flows to California, Arizona farms and ranches will cost 

much more than USDA estimates. It is the right and obligation of 

the Congress to set boundaries for Federal agencies. Please reign 

in USDA, Forest Service and EPA in this job-killing overreach. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Parker follows:] 

PREPARED STATEMENT OF RANDY N. PARKER, CHIEF EXECUTIVE OFFICER, UTAH

FARM BUREAU FEDERATION, SANDY, UTAH

The Utah Farm Bureau Federation is the largest general farm and ranch organization in the state of Utah representing more than 28,000 member families. We represent a significant number of livestock producers who use the Federal lands for 

33 

sheep and cattle grazing. Livestock ranching is an important part of the historic, 

cultural and economic fabric of the state of Utah and is a major contributor to the 

state’s economy. In the second most arid state in the Nation, water was and continues to be of critical importance. 

Utah’s food and agriculture sector contributes to the state’s economic health and 

well-being generating billions of dollars in economic activity and providing jobs to 

tens of thousands of Utah citizens. Utah farm gate sales in 2013 exceeded $1.7 billion and according to Utah State University the economic ripple effect is dramatic. 

Forward and backward linkages to industries like transportation, processing, packaging and determined food and agriculture are the catalyst for $17.5 billion in economic activity, or about 14 percent of the state GDP providing nearly 80,000 jobs. 

As water has historically been developed in the west, it was for the production 

of food and fiber. According to the Utah State Engineer, farmers, ranchers and agriculture interests own and control 82 percent of Utah’s developed water. The landscape of the west is changing with growing populations and increased demand for 

limited water resources. With nearly 70 percent of Utah owned and controlled by 

the Federal Government, sovereignty and state control of our water resources is critical to food security, growth and future prosperity. 

Utah Farm Bureau delegates in November 2013 adopted policy that calls on the 

Federal Government to ‘‘not claim ownership of water developed on Federal land.’’ 

In addition, Farm Bureau policy calls for ‘‘state control of water rights, stock water 

rights to be held by the individual grazing permittee and protection against Federal 

encroachment on state waters.’’ 

HISTORY

Scarcity of water in the Great Basin and southwest United States led to the development of a system of water allocation that is very different from how water is allocated in regions graced with abundant moisture. Rights to water are based on 

actual use of the water and continued use for beneficial purposes as determined by 

state laws. Water rights across the west are treated similar to property rights, even 

though the water is the property of the citizens of the states. Water rights can be 

and often are used as collateral on mortgages as well as improvements to land and 

infrastructure. 

The idea of a ‘‘riparian’’ interest in water that appears to be factored into the 

Forest Service Groundwater Resources Management Directive is not a legally recognized concept by most western states, holders of western water rights and under 

western water law. 

The arid west was transformed by our pioneer forefathers through the judicious 

use of the precious water resources. Utah is the Nation’s second most arid state, 

second only to Nevada. For our ancestors, protecting and maximizing the use of the 

water resources was not only important, it was a matter of life and death. Water 

retains that same level of importance today! 

CONGRESSIONAL ACTIONS 

‘‘ESTABLISHING SOVEREIGN WATER RIGHTS OF THE STATES’’ 

The settlers in the arid west developed their own customs, laws and judicial determinations to deal with mining, agriculture, domestic and other competing uses recognizing first in time, first in right. Out of these grew a fairly uniform body of laws 

and rights across the western states. The Federal Government as original sovereign 

and owner of the land and water prior to Congress granting statehood ultimately 

chose to acquiesce to the territories and later the states on control, management and 

allocation of water. 

Act of July 26, 1866: 

The U.S. Congress passed the Act of July 26, 1866 [subsequently the Ditch Act 

of 1866] that became the foundation for what today is referred to ‘‘Western Water 

Law.’’ The Act recognized the common-law practices that were already in place as 

settlers made their way to the western territories including Utah. Congress 

declared: 

‘‘Whenever, by priority of possession, rights to the use of water for mining, 

agriculture, manufacturing, or other purposes, have vested and accrued, and 

the same are recognized and acknowledged by the local customs, laws and 

decisions of courts, the possessors and owners of such vested rights shall be 

maintained and protected.’’ (43 U.S.C. Section 661) 

34 

This Act of Congress obligated the Federal Government to recognize the rights of 

the individual possessors of water, but as important, recognized ‘‘local customs, laws 

and decisions of state courts.’’ 

The Desert Land Act of 1877: 

‘‘All surplus water over and above such actual appropriation and use . . . 

shall remain and be held free for appropriation and use of the public for 

irrigation, mining and manufacturing . . .’’ 

The Taylor Grazing Act of 1934: 

‘‘nothing in this Act shall be construed or administered in a way to diminish 

or impair any right to the possession and use of water for mining, agriculture, manufacturing and other purposes . . .’’ 

The McCarran Amendment of 1952: 

Congress established a unified method to allocate the use of water between 

Federal and non-Federal users in the McCarran Amendment. (43 U.S.C. Section 

666) The McCarran Amendment waives the sovereign immunity of the United 

States for adjudications for all rights to use water. 

‘‘waives the sovereign immunity of the United States for adjudications for 

all rights to use water.’’ 

The 1976 Federal Land Policy Management Act: 

‘‘All actions by the Secretary concerned under this act shall be subject to 

valid existing rights.’’ 

Congress has been explicit in the limits it has established on sovereignty and 

state’s rights for the U.S. Forest Service and other land management agencies. 

OBAMA ADMINISTRATION 

‘‘INCREASING COMMAND & CONTROL’’ 

In the public lands states of the American West, there has been a growing distrust of the Federal land management agencies as they have imposed greater command and control over the natural resources of the region. The uncertainty of 

changing attitudes within the agencies often driven by the politics of the day creates 

economic challenges for farmers, ranchers, businesses, communities and the western 

states. 

For grazing of livestock that began as the first pioneers entered the Salt Lake 

Valley in 1847, the lands held in common were utilized in the best interests of the 

common good. The Multiple Use—Sustained Yield Act of 1960 held to the same important values—Meet and Serve Human Needs! 

The production of meat protein from the lands held in common (public lands) provides a value to all Americans, even those who are physically or financially unable 

to travel to the west. Agency actions have dramatically reduced generation’s old 

livestock grazing rights (Animal Unit Months—AUMs) with water often cited as the 

reason. In the trespass case United States v. the Estate of Wayne Hage, grazing 

rights, livestock water rights and access to the state’s sovereign waters on Federal 

lands came to a boiling point in a Nevada Federal Courtroom in 2012. Nevada 

Federal District Court Chief Judge Robert C. Jones in a striking and revealing 

statement said: 

‘‘Anybody of school age or older knows the history of the Forest Service in 

seeking reductions in AUMs and even the elimination of cattle grazing 

during the last four decades.’’ 

The pervasive culture and attitude of the leaders and employees of the U.S. 

Forest Service has become even more confrontational during the Obama administration. They are seeking to exercise greater control over the System lands that includes reductions in grazing rights, controlling water and challenging access. These 

detrimental actions are seemingly without regard for the history, culture and economics as required by Federal laws including the Federal Land Policy Management 

Act. 

Some of the aggressive agency actions that imperil property rights, state sovereignty, economic opportunities and jobs are listed below. They are representative 

of a growing list of regulatory and legal actions that challenge opportunity and 

hinder economic growth. 

35 

UNITED STATES FOREST SERVICE 

‘‘WATER—A TROUBLED HISTORY’’ 

It is important to recognize and remember as one analyzes and deliberates over 

the proposed U.S. Forest Service proposed Groundwater Resources Management 

Directive—these waters originating on System lands are the sovereign water rights 

of the people of the State of Utah and do not belong to the Federal Government nor 

the American people! 

Utah Diligence Claims: 

The aggressive posture of the Forest Service in collecting western water rights is 

highlighted in its filing of 16,000 diligence claims on livestock water rights scattered 

across the Utah landscape belonging to Utah sheep and cattle ranchers. This decades old strategy was defended by now retired Regional Forester Harv Forsgren who 

argued ‘‘these diligence claims are made on behalf of the United States, which was 

the owner of the land where livestock grazed prior to statehood and livestock watering took place which action established the Federal Government’s claim to water 

rights.’’ 

A ‘‘Diligence Right’’ or ‘‘Diligence Claim’’ under Utah law is a claim to use the 

surface water where the use was initiated prior to 1903. In 1903, statutory administrative procedures were first enacted in Utah to appropriate water. Prior to 1903, 

the method for obtaining the right to use water was simply to put the water to beneficial use. To memorialize a diligence claim, the claimant has the burden of proof 

of the validity of beneficial use prior to 1903. The agency’s argument continues to 

be that the livestock beneficially use the water in the name of the United States 

prior to Utah’s statehood. These claims will ultimately require a determination to 

be made by the State Engineer under the guidance of the Utah Legislature. 

Tooele County Utah Grazing Association: 

In the spring of 2012, livestock grazing permittees meeting with the local Forest 

managers were confronted by Forest land managers seeking a ‘‘sub-basin claim’’ 

from the State of Utah. Where a sub-basin claim is granted by the Utah Division 

of Water Rights, changes in use and diversion can be done without state approval. 

The permittees were asked to sign a ‘‘change of use’’ application which would have 

allowed the agency greater ease in determining what the use would be, including 

changing use from livestock water to wildlife, recreation or elsewhere. 

When permittees objected, they were told that not complying with the Forest 

Service request could adversely affect their ‘‘turn out’’—the release of their sheep 

and cattle onto their Forest allotments. 

2004 Forest Service ‘‘Water Clause’’: 

In 2008 Utah passed the Livestock Water Rights Act to define the water rights 

of permittees on the Federal lands based on the ability to place the state’s water 

to beneficial use. The Legislature said: 

‘‘the beneficial user of a livestock watering right is defined as the grazing 

permit holder for the allotment to which the livestock watering right is 

appurtenant.’’ 

The Forest Service filed an ownership claim on all livestock water rights on 

Forest System lands in Utah claiming they are ‘‘the person who owns the grazing 

permit.’’ 

Using the ‘‘water clause’’ as leverage, the Forest Service pushed the Utah Legislature to amend the Act to include ‘‘joint ownership’’ in livestock water rights. The 

agency argued it was necessary to assure continued water for livestock grazing of 

Forest lands. Utah did amend the statute to as requested providing for a ‘‘Certificate of Joint Ownership.’’ This action and creation of a certificate however did not 

convey a right of ownership to the Forest Service because rights are based on the 

ability to beneficially use the state’s water. 

It is important to recognize Utah law provides greater assurance of water remaining on the livestock grazing allotment than any Federal agency assurances, including internal policies like the Water Clause or the proposed Groundwater Resources 

Management Directive. Utah law states: 

‘‘A livestock water right is appurtenant to the allotment on which the livestock is watered.’’ 

In 2014 the Utah Legislature deleted reference to the ‘‘Certificate of Joint Ownership’’ based on concerns in the Forest Service Water Clause and a claim of sole possession. The Clause says: 

36 

‘‘In the event of revocation of this permit, the United States shall succeed 

to the sole ownership of such joint water rights.’’ 

It is troubling and offensive to consider that through an adverse agency action on 

a permitted activity on System lands, the agency ‘‘claims’’ sole possession of 

previous jointly held private water rights. 

It is a government taking without just compensation! 

Over-Filing on Historic Water Rights: 

In Joyce Livestock Company v. United States, the Owyhee County based cattle operation had ownership dating back to 1898 including in-stream stock water rights. 

The United States over-filed on the Joyce water rights based on a priority date of 

June 24, 1934—the date of passage of the Taylor Grazing Act. The United States 

could not show that Joyce or any of its predecessors were acting as it agents when 

they acquired or claimed to have acquired the water rights. In 2007, after nearly 

a decade of legal actions and hundreds of thousands of dollars in legal costs, the 

Idaho Supreme Court denied the United States claim and defined the standard of 

beneficial use. The Idaho Supreme Court said: 

‘‘The District Court held that such conduct did not constitute application of 

the water to beneficial use under the constitutional method of appropriation, 

and denied the claimed rights. The Idaho Supreme Court concurred holding 

that because the United States did not actually apply the water to a 

beneficial use the District Court did not err in denying its claimed water 

rights.’’ 

In 1991 in Hage v. United States, the Forest Service and BLM over-filed on the 

livestock rights established in 1865 that ultimately became a landmark ‘‘Constitutional Takings’’ case that went before the U.S. Court of Federal Claims. The USCFC 

award of $4.4 million was appealed to the Federal Court of Appeals for Washington, 

DC where the award was overturned in 2012. While awaiting a decision, the U.S. 

Forest Service and BLM in 2007 filed suit in Nevada Federal District Court against 

the estate of Wayne Hage alleging trespass on Federal lands. In what could only 

be called a contentious proceeding, Nevada Federal Judge Robert C. Jones heard 

testimony from Humbolt-Toiabe Forest Ranger Steve Williams stating that: 

‘‘despite the right (of the Hages) to use the water, there was no right to access 

it, so someone with water rights but no permit from the U.S. Forest Service 

would have to lower a cow out of the air to use the water, for example, 

if there were no (agency granted) permit to access it.’’ 

June 6, 2012 Judge Jones made two very important observations on the Forest 

Service and livestock grazing policies: 

‘‘. . . the Forest Service is seeking reductions in AUMs and even the elimination of cattle grazing . . .’’ 

‘‘I find specifically that beginning in the late ’70s and ’80s, first, the Forest 

Service entered into a conspiracy to intentionally deprive the defendants here 

of their grazing rights, permit rights, preference rights.’’ 

Both the Appeals Court and the Nevada District Court were in agreement that 

there is ‘‘a right of access’’ to put livestock water to beneficial use on Federal 

lands. Judge Jones ruling even included an access corridor with grazing rights while 

beneficially using the state’s waters. 

In the Tombstone, Arizona scenario, the Forest Service overreach begins with 

the agency overfiling on the city’s 25 developed springs and wells located in the 

Huachuca Mountains. For more than 130 years Tombstone piped its privately held 

water rights some 30 miles for use. Even after the Huachuca’s were designated a 

Federal wilderness area in 1984, Tombstone was allowed to maintain its road and 

critical access to its springs providing Tombstone with water for culinary needs and 

maybe more important in this hot, arid place—fire protection and public safety. 

Tombstone won the water ownership challenge, but found the agency combative 

and stonewalling following torrential rains in 2011. After notifying the Forest 

Service of their need to repair damage as in the past, they were denied access. They 

sought relief based on the state’s public health, safety and welfare obligations. When 

the city received authorization to do badly needed repairs they were forbidden from 

using the previously approved mechanized equipment. As city employees showed up 

with hand-tools and wheelbarrows—armed Forest agents would not allow the 

‘‘mechanized’’ wheelbarrows onto the Forest administered lands! As of April 24, the 

Forest Service has allowed Tombstone access to only 3 of their 25 springs. 

37 

Fencing Cattle From Their Water: 

In drought stricken Otero County, New Mexico, the Forest Service is blocking 

rancher’s cattle from accessing long held water and recognized as private property 

rights under state law. The agency told the ranchers with thirsty cattle that they 

merely replaced old barbed wire fences with new, much stronger metal based fences 

to establish enclosures to protect a ‘‘vital wetland habitat.’’ 

Otero County Commissioners issued a ‘‘cease and desist’’ order in an attempt to 

allow the cattle access to the rancher’s water and to protect the state’s sovereign 

water rights. The elected county commissioners charged the Forest agents with an 

illegal action that could ultimately lead to animal cruelty. The county is threatening 

the arrest of Federal personnel who are keeping the ranchers from their privately 

held water rights. 

Intermountain Regional Water Policy: 

National and Intermountain Region Forest Service policies authorize and instruct 

agency personnel on the ‘‘establishment of water rights in the name of the United 

States’’ and provide guidance with ‘‘State Specific Considerations’’ outlining the 

steps to obtain livestock water rights. In an August 15, 2008 Briefing Paper, 

Regional Forester Harv Forsgren explained the ‘‘United States, through the Forest 

Service, has filed thousands of claims for livestock water on Federal lands. The 

Forest Service in the Intermountain Region has filed on or holds in excess of 38,000 

stock water rights . . .’’ 

The briefing paper continues, ‘‘In recent years, ranchers and community leaders 

have contested ownership of livestock water rights. Some ranchers believe that they 

should hold the water rights because their livestock actually use the water. Land 

management agencies, such as the U.S. Forest Service, have argued that water 

sources used to water livestock on Federal Lands are integral to the land where the 

livestock grazing occurs, therefore the United States should hold the water rights.’’ 

When addressing water development on Forest System lands, the Regional Forester 

said: 

‘‘The Intermountain Region will not invest in livestock water improvements, 

nor will the agency authorize water improvements to be constructed or reconstructed with private funds where the water right is held SOLELY by 

the livestock owner.’’ 

Restricting the use of private water rights through greater agency control challenges state sovereignty and private property protections under Utah’s Constitution. 

Defacto Water Rights: 

Shrinking livestock grazing rights in Utah have been troublesome for elected officials and livestock ranchers for generations. Following the enactment of the Taylor 

Grazing Act of 1934 and establishment of Grazing Districts where ‘‘chiefly valuable 

for grazing’’ was the congressional mandate the Forest Service and BLM authorized 

more than 5.5 million AUMs (the amount of forage consumed by a 1,000 pound cow 

and calf) in Utah. 

On June 18, 2014 the Utah Legislature held hearings on why in 2014 there are 

only 1.6 million AUMs, or a loss of nearly 70 percent over the past 70 years. Forest 

Service and BLM representatives asked to justify the dramatic drop and how those 

cuts affect water rights, access, and rural economics. 

As permitted AUMs have been dramatically reduced, there has been a corresponding increase in ‘‘suspended’’ AUMs—or currently obligated grazing rights 

that are being held by the Federal land managers in non-use. Through this process, 

the Federal Government has gained unused ranchers livestock water rights—defacto 

water rights illegally absorbed by the United States without compensation. Along 

with 340,000 suspended AUMs that continue to languish in non-use even while the 

state of Utah, ranchers and sportsmen invests tens of millions of dollars in feed for 

livestock and wildlife habitat without Federal agencies increasing livestock grazing. 

UNITED STATES FOREST SERVICE 

PROPOSED GROUNDWATER RESOURCES MANAGEMENT DIRECTIVE

The Federal Register May 6, 2014, page 25823 states under Regulatory Impact 

that USDA has determined this is not a ‘‘significant directive.’’ It continues, ‘‘This 

directive will not have and annual effect of $100 million or more on the economy, 

nor would it adversely affect productivity, competition, jobs the environment, public 

health or safety or State or local governments.’’ 

This statement seems to dismiss very real and widespread economic impacts and 

under further scrutiny appears to be misleading! The Forest Service has a recogVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
38 

nized history of reducing livestock grazing in Utah and across the West based citing 

water as a major reason. Any reduction of sheep or cattle grazing on System lands 

impacts real ranching families and western communities. In the arid west and particularly in Utah with 67 percent of the state controlled by Federal land managers, 

there are many counties with 85, 90 and even 95 percent Federal lands. The Forest 

System lands are where winter snows fall and rain accumulates. This high mountain terrain is generally where water flows and springs are recharged for livestock 

use and captured for use by rural communities. 

The ranching families who depend on Forest access for livestock grazing not only 

generate real economic activity—they pay taxes, fund hospitals, schools and other 

critical infrastructure across the Utah and Western landscape! 

In the event actions reducing livestock stocking rates are taken by the agency for 

reduced moisture as proposed in the Directive, with as little as 10 or 25 percent cuts 

in cattle grazing or as dramatic as 50 percent—the economic impact is dramatic. In 

southern Utah’s Kane and Garfield Counties for example, with private lands making up only 10 percent and 5 percent of the total county land base respectively, cattle ranching is the foundation economic industry. With 12,500 beef cows, all of 

which spend some time on Forest lands, if the Forest Service cut 25 percent of the 

cattle, that would reduce cattle sales by more than $3 million and cut economic activity by more than $6 million annually. With a 50 percent cut in cattle grazing 

those numbers double—more than $12 million is taken from these rural counties annually until the Forest Service restores AUMs. 

Considering these potential grazing cut scenarios under the proposed Directive in 

just two rural Utah counties, it doesn’t take very many counties with grazing reductions across the west to meet and surpass the USDA dismissed $100 million mark. 

The history of the Forest Service and livestock grazing in Utah is striking when 

the numbers are analyzed. Utah Forest Service permitted AUMs between 1940 and 

2012—the number of sheep and cattle grazing System lands has been dramatically 

reduced. In 1940, according to Utah State University researchers there were 

2,754,586 sheep and cattle grazing AUMs permitted in Utah. In 2012, 72 years 

later, the Forest Service has reduced that number to 614,682 AUMs—a reduction 

of 2,139,904 AUMs or a whopping 78 percent! 

The history and its economic impact on rural Utah and the state’s economy by 

Forest Service grazing cuts is dramatic. An average sized 500 beef-cow operation 

grazing on the common lands generates more than $500,000 in direct sales stimulates more than $1 million in economic activity. The heavy cuts in grazing AUMs 

has robbed hundreds of millions of dollars from rural communities. 

The internal obligation of Forest Service employees to implement the agency’s 

Manual, including the proposed Directive, provides an undeniable opportunity to facilitate the agency’s historic and recognized attack on western livestock ranching 

and undermining of longstanding western water rights. 

Forest Service Directive System: 

The Forest Service Manual contains legal authorities, objectives, policies, responsibilities, instructions and guidance needed on a continuing basis by the Forest 

Service line officers and primary staff. For Forest Service employees, the agency 

issues the following warning for not following the agency directives: 

‘‘The Manual contains the more significant policy and standards governing 

Forest Service programs, and thus the consequence of not complying with 

the Manual is generally more serious . . .’’ 

The Directive seeks greater authority and control obligating employees to integrate the Forest Service Manual ‘‘directives’’ based on terms like ‘‘require,’’ ‘‘report,’’ 

‘‘prevent,’’ and ‘‘obtain.’’ These are ‘‘action words’’ that convey to Forest employees 

and permitted users there is an obligation of compliance and that there are or will 

be consequences for ‘‘not complying!’’ 

Seeking Greater Control of Western Water: 

According to the Utah State Engineer, ‘‘in Utah the Forest Service lands are those 

lands where most of our annual precipitation falls and accumulates as snow . . .’’ 

There is not a definitive study on what percent of Utah precipitation originates on 

System lands but it ‘‘may well be as much as 70 percent.’’ (See Attachment A) 

2560.03 Policy: 

2. Water Resource Connectivity: The agency cites they will ‘‘manage surface and 

groundwater resources as hydraulically connected, and consider them interconnected in all planning and evaluation activities, unless it can be demonstrated 

otherwise . . .’’ This is an obvious attempt to expand the agency’s authority. With 

39 

such a large portion of Utah’s waters originating on System lands, this Directive 

could impede Utah’s current water uses and future water needs. 

It is alarming when the agency seeks jurisdictional control based on 

‘‘interconnectivity’’—surface and groundwater. What are the jurisdictional bounds 

the Forest Service seeks or can legally exercise based on state’s rights? Utah’s State 

Engineer expressed concerns about existing diversions and use and the potential for 

reissuing of permits. He is concerned that the Forest Service may seek and unilaterally establish authority to create restrictions on existing uses under this policy if 

they decide what they already approved doesn’t fit within their new interpretation. 

And what authority does the policy suggest the agency can exert in not allowing 

as much use of the water from a source located on System lands as has previously 

been allowed under state authority and beneficially used under state law. This could 

create a tremendous frustration and potential legal issues for holder of existing 

water rights where Utah’s Constitution protects against the government ‘‘taking or 

diminishing value’’ in private property right. 

This proposed new policy creates tremendous uncertainty. What might be the impact of Federal dictates on private property rights and what Congress has conveyed 

as the sovereign waters of the state of Utah? 

Utah’s State Engineer expressed concern interpreting the policy and implementing what they think the words in the Directive say. There are existing state 

authorized with long established rights. The holders of water rights must have assurances that their uses and dependency on those sanctioned uses will continue. 

4. Effects of Proposals on Groundwater Resources: (a) The policy seeks ‘‘consideration of effects’’ and ‘‘approving a proposed use’’ which appears to be the agency 

seeking to establish a permitting process. Permitting the use of water that is clearly 

the property and authority of the state of Utah is Federal regulatory overreach. In 

addition, the slowdown and costs associated with meeting an additional level of 

Federal review would be unacceptable based on access to and use of private property 

and the water resources of the state. 

(c & d) Policy requiring written authorization, monitoring and mitigation are troubling and suggest the agency is seeking to usurp sovereign states rights while establishing a level of Federal supremacy! This policy proposal could have dramatic 

impacts including delayed use of groundwater and even surface water resources and 

potential loss of individual property rights based on time requirement for beneficial 

use and ultimately forfeiture under state law. 

(e) ‘‘Obtain water rights’’ as related to this proposed groundwater policy and in 

the context of a potentially massive watershed basis—portends major Federal/state 

framework conflicts. The scope of the overall Directive and the state policy to obtain 

water rights ‘‘for groundwater and groundwater dependent surface water’’ could provide regional Forest staff the ability to seek and purchase water rights originating 

on and even off, if they deem that water necessary to carry out the very broad objective of the Manual. This puts the Federal Government, at taxpayer expense, in direct competition with municipalities, farmers, ranchers and other businesses for the 

state’s water resources. 

2560.04h—Forest and Grasslands Supervisors: 

(5). ‘‘Evaluate all applications for state water rights on NFS lands and those adjacent lands with a potential to effect System groundwater resources.’’ This directive 

seems to challenge or seeks to establish Federal supremacy over state water rights 

and where the state’s are granting water rights and permitting beneficial use activities under state law. The additional assumption that the Federal Government has 

authority to evaluate and influence in any way the use of water related to ‘‘adjacent 

lands’’ is in direct violation of Utah’s Constitution and protection against ‘‘taking or 

diminishing value’’ of private property rights. 

Groundwater Recharge Zones: 

Groundwater recharge zones, located on public or private property, falls under the 

prevue of Utah Division of Drinking Water. Utah has aggressive state statutes and 

local ordinances that address the current and future drinking water needs of the 

citizens of the state. The Federal land managers have an obligation under ‘‘federalism’’ to provide state and local authorities full and unfettered access to implement groundwater protection activities on System lands without Federal 

interference to carry out its regulatory mandates. 

Actions by the Forest Service to reduce or eliminate livestock grazing based on 

recharge areas and on riparian areas are outside of Federal authority. Addressing 

water quality and meeting water quality standards is the responsibility of the state. 

Utah’s Strategy for Clean Water has established long standing and successful incentive-based partnership with Utah’s farmers and ranchers in place to address nonVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
40 

point sources of water pollution. The EPA Award Winning Program should be 

utilized on both public and private lands. 

Congressional Oversight: 

The Congress of the United States not only has the right, but has the obligation 

to determine the reach of Federal regulatory agencies. The Farm Bureau calls on 

Congress to maintain the historic Federal/state framework as it relates to the sovereign waters of the states. This relationship is critically important based on the 

difference in between eastern and western states and the source of available water 

supply. (See Attachment B) 

Attachment A 


88504.005.eps
41 

Attachment B 

Mr. MCCLINTOCK. I thank you, Mr. Parker. 

I now recognize Mr. Roger Clark, Director of Engineering and 

Operations of the Associated Electric Cooperative, Inc., which is 

based in Springfield, Missouri, to testify. 

STATEMENT OF ROGER CLARK, DIRECTOR, ENGINEERING 

AND OPERATIONS, ASSOCIATED ELECTRIC COOPERATIVE, 

INC., SPRINGFIELD, MISSOURI 

Mr. CLARK. Thank you, sir. Chairman McClintock, Ranking 

Member Napolitano, and members of the committee, it really is an 

honor to be here. I appreciate the opportunity. 

Roger Clark, Associated Electric Cooperative, Springfield, 

Missouri. 


88504.006.eps
42 

I would be remiss if I did not take a chance to at least shout out 

to Congressman Smith. Associated has a longstanding relationship 

with the Congressman, and I know he has not been in Congress 

that long, but he has still proven a commitment to the rural ratepayers in Missouri for affordable, reliable electricity. We appreciate 

those efforts. 

Associated Electric, formed in 1961, had a pretty simple mission, 

and that was to provide wholesale power to Missouri, northeast 

Oklahoma, southeast Iowa, and I emphasize the word ‘‘cooperative.’’ That is near and dear. As such, we are a not-for-profit, a private business that essentially is governed by, regulated by, if you 

will, the people who write the checks for the electricity that we provide. 

The other thing that may be of relevance to the committee, 

Associated Electric is the largest preference power customer from 

Southwestern Power Administration. We receive about 25 percent 

of the low cost hydropower that comes out of Southwestern, a very, 

very important asset for our affordable rates in Missouri. 

Associated has a very longstanding commitment to the environment, and as you have heard up here, we are proud of that. We 

have been recognized nationally for our land reclamation efforts 

and the work we have done in wildlife habitat. We have been an 

established partner with Missouri’s Department of Conservation, 

and we have even been recognized as a Conservation Organization 

of the Year. 

We have been involved in a lot of voluntary efforts with U.S. 

Fish and Wildlife, trying to do things proactively for those species 

that have been proposed under the Endangered Species Act. 

I say that because that is what we have done, but that is not 

why we have done it. We are committed to the environment because we are owned by the people who live on the land. We are 

owned by the people who own the land, that make a living from 

the land. No less than anyone out there, they want to protect water 

resources. They want to protect air resources. They are concerned. 

But that said, we have some serious, significant concerns with 

the rule proposed recently by the EPA and the Army Corps, specifically with the definition of ‘‘Waters of the United States.’’ Probably 

the easiest way to say it is as this draft is proposed, electric cooperatives just are not going to be able to do what we do best, and 

that is provide affordable, reliable electricity. 

We are dying here. We are drowning under reams and reams of 

Federal regulation, and while it all may be well intentioned, at the 

end of the day it is really clear when you are out there trying to 

put these things into force. It adds delay. It adds complexity, and 

it adds cost. And plain and simple, the cost is at the expense of the 

people who are writing the checks, and in our case those are rural 

Missourians. 

One out of every five of our almost 900,000 customers has a total 

household income of less than $25,000. Almost half of our member 

owners have a total combined gross income of less than $50,000. 

These costs are not misguided. These costs put people at—to make 

very difficult decisions. This is not corporate America. This is not 

burdening stockholders. This is coming at the expense of rural 

America and the people that I work and live with. 

43 

It boils down to doing the right thing in an efficient way. For us 

to do our job, we have to maintain almost 10,000 miles of transmission line, and the ambiguity in this rule makes it impossible to 

understand the exact impact, but what I can tell you is, because 

we are dealing with what we call a bar ditch and the fact that the 

bar ditch is now going to be something that is protected as a 

‘‘Water of the United States’’ and not understanding how to do that 

is just going to make it near impossible for us to do our job. 

I appreciate the attention of the subcommittee. This and other 

proposed rulemaking is important to Associated and the other electric cooperatives of this country. I would be happy to discuss issues 

and answer questions. 

Thanks for your time. 

[The prepared statement of Mr. Clark follows:] 

PREPARED STATEMENT OF ROGER S. CLARK, DIRECTOR, ENGINEERING & OPERATIONS, 

ASSOCIATED ELECTRIC COOPERATIVE, INC., SPRINGFIELD, MISSOURI

Chairman McClintock, Ranking Member Napolitano, members of the subcommittee. Thank you for inviting me to testify today on ‘‘New Federal Schemes to 

Soak Up Water Authority: Impacts on States, Water Users, Recreation, and Jobs.’’ 

My name is Roger Clark, and I am the Director of Engineering and Operations for 

the Associated Electric Cooperative, Inc. (Associated). 

Before I begin my testimony, I’d like to thank Congressman Jason Smith from my 

home state of Missouri. We’ve had a long-standing relationship with Congressman 

Smith, but during his short time in Congress he’s already proven his commitment 

to supporting reliable, affordable electricity for the people of rural Missouri. 

Associated supplies electricity to over 400,000 individuals in Congressman Smith’s 

district, and we know that their interests are well represented here in Washington, 

DC. 

ASSOCIATED BACKGROUND

Associated is owned by six generation and transmission (G&T) cooperatives, 

which formed Associated in 1961 to provide the G&Ts with a wholesale power supply. These six G&Ts are owned by 51 distribution cooperatives in Missouri, southeast Iowa and northeast Oklahoma that are owned by about 875,000 member 

consumers. As an electric cooperative, Associated is a not-for-profit, private business 

governed by our consumers. More than 900 electric cooperatives serve 42 million 

consumers in 47 states. 

Associated has a long-standing commitment to environmental stewardship. We’re 

committed to this cause because we are owned by people who live on the land and 

want to protect rural America’s water and air resources for future generations. To 

this end, we have 750 megawatts of wind generation under contract, representing 

10 percent of the energy used to serve our members. In 2007, this investment 

earned us the Department of Energy’s Wind Cooperative of the Year award. We 

have also spent over $30 million on energy efficiency for our cooperative members. 

Over the lifetime of the equipment, these efforts will save enough electricity to serve 

60,000 rural Americans for 1 year. 

Associated has been nationally recognized for our land reclamation efforts and 

wildlife habitat development. We’ve invested $1.1 billion in emission control equipment and have proactively developed and deployed mercury removal technology well 

in advance of EPA regulations. We’ve established a partnership with Missouri’s 

Department of Conservation to manage the fishery at Thomas Hill Lake. These efforts earned us the distinguished title of ‘‘Conservation Organization of the Year’’ 

by the Conservation Federation of Missouri. Finally, it is worth mentioning, that we 

are proactively involved in voluntary state efforts to develop habitat for species that 

the U.S. Fish and Wildlife Service has proposed for listing under the Endangered 

Species Act (ESA). We are committed to these voluntary efforts in hopes that they 

will give the Federal Government a reason to avoid listing these species under the 

ESA. 

Notably, about 6 percent of our power supply comes from hydropower provided by 

the Southwestern Power Administration (SWPA). Associated is SWPA’s largest customer, receiving 25 percent of the power produced by SWPA. The business relationship between Associated and SWPA represents a long-standing partnership between 

44 

electric cooperatives and the Federal Government. It is a model that works well for 

providing our consumers with reliable, affordable electricity. I would like to thank 

the members of this subcommittee for your continued efforts to protect electric cooperative access to this vital source of renewable energy. 

ASSOCIATED’S CONCERNS WITH THE ‘‘WATERS OF THE UNITED STATES’’ PROPOSED RULE

Associated has significant concerns with the rule proposed recently by the U.S. 

Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers 

(Corps) to revise the definition of ‘‘Waters of the United States’’ under the Federal 

Clean Water Act. Under this draft proposal, electric cooperatives will face significant challenges as we strive to provide our member-owners with reliable and affordable energy. In my testimony, I will highlight several activities related to the transmission, distribution, and generation of energy that may require Federal permits 

under the proposed rule, causing uncertainty, delay, and cost. The activities we are 

concerned about include transmission and distribution facilities, vegetation management, new generation, pond management, and mine reclamation. 

TRANSMISSION AND DISTRIBUTION FACILITIES

Associated generates electricity at 15 generating units located in Kansas, 

Missouri, Arkansas and Oklahoma to serve customers throughout a multi-state 

region requiring an expansive transmission network. As we increase our generating 

capacity to meet the growing demands of our members, we may also need to build 

new transmission facilities. Looking forward, Associated and the G&Ts plan to invest an estimated $115 million on primary transmission facilities in the next 10 

years, and our experience has been that Federal permit requirements add substantial cost and delays to these projects. 

Transmission facilities require regular maintenance, including necessary repair 

and replacement of poles and towers. In addition, these facilities require upgrades 

to make the system more resilient in the event of extreme weather events. SWPA 

and other Federal Power Marketing Administrations that own transmission systems 

will be affected similarly and any increased costs will be passed on to our member 

consumers. Along these lines, we are concerned that under the proposed rule, transmission 

rights of way may be considered waters of the U.S. Transmission rights of way are 

often simple ditches alongside roads. These ditches receive road runoff, which could 

grow cattails even though they infrequently hold water. EPA and the Corps have 

said that they are exempting ditches that drain only upland and are constructed in 

uplands, but the term ‘‘upland’’ is not defined. This gives the Federal Government 

the final say on whether or not ditches are eligible for the exemption. 

As a result, we will need a permit from the Corps of Engineers to maintain our 

transmission facilities. The Corps has a nationwide permit for utility line activities 

that authorizes up to 1⁄2 acre of disturbance for each ‘‘single and complete project.’’ 

Under the current permit, each stream crossing is considered a separate project. 

However, under the proposed rule, ‘‘ephemeral streams’’ that only have water when 

it is raining would be considered streams so it will be hard to tell where a ‘‘water’’ 

ends and land begins. 

Given the large number of runoff channels that crisscross the landscape, we could 

easily exceed the 1⁄2 acre limit provided under the nationwide permit. If so, we 

would have to get an individual permit for each project, which will take time and 

money. Of course, the additional cost and time associated with the permit do not 

take into consideration NEPA litigation or Clean Water Act citizen suits that may 

occur as a result of Federal involvement in the project. 

Finally, it’s worth noting that along transmission routes Associated operates substations where we store oil requiring a Spill Prevention Control and Countermeasure (SPCC) Plan. The increased scope set forth in the proposed rule would 

require Associated to expand these plans to take into account the areas not currently considered waters of the United States. This is yet another cost that will impact our member consumers. 

The permitting requirements that apply to Associated’s distribution cooperatives 

will delay electric service to new residential, small business, and farm members, as 

well as any proposed economic development projects. Delays in line construction 

may force companies that can’t wait for permitting in the United States to locate 

elsewhere. 

VEGETATION MANAGEMENT

To maintain the reliable delivery of electricity, we also have to maintain our 

transmission routes, keeping them clear by controlling vegetation. To do this, we 

45 

use herbicides. If our rights of way are considered waters of the United States, we 

will need a permit to spray herbicides for weed control. EPA and states have issued 

general permits for weed control, but if you spray more than 20 linear miles, there 

are added burdens. And, if the area is considered a waters of the United States or 

potential habitat for endangered species, there will be even more requirements, all 

triggered by the assertion of Federal jurisdiction. 

We also maintain the property around our generating facilities and transfer stations. Using herbicides in these areas will give rise to the same issues. We are concerned that SWPA will face similar issues, incur similar costs, and pass those costs 

along to electric cooperatives. 

NEW GENERATION

Currently coal is our primary source of generation, but looking forward, 

Associated will continue to invest in a broad portfolio of energy resources to meet 

the needs of our member consumers. The challenges previously outlined facing 

transmission facilities also apply to the construction of new generation, and are further complicated by the lack of a nationwide permit for new fossil fuel generation 

capacity. In fact, the situation will be even more challenging with respect to natural 

gas plants that require pipelines to transport gas to any new gas-fired plants. As 

we look to bring new sources of generation on line, we are concerned that the siting 

and permitting of new natural gas pipelines will be further delayed. These activities 

become even more critical for cooperatives if we are to meet EPA’s proposed requirements to replace coal generation with renewable energy sources and additional combined cycle natural gas generation. 

It’s also worth noting that the Corps does have a nationwide permit for landbased renewable energy development, but the permit only allows 1⁄2 acre of land to 

be disturbed and just 300 linear feet of stream (unless the Corps waives the 300 

feet limit). Given the expanded definitions and uncertainty discussed above, this nationwide permit may have little practical application. For example, most wind farms 

likely will exceed 1⁄2 acre of land. 

POND MANAGEMENT

Associated built Thomas Hill Lake to provide cooling water for our member consumers’ power plant, but the lake also provides recreation for the community and 

habitat for wildlife. Associated works with the Missouri Department of Conservation, which manages the lake for fishing and wildlife habitat. Water is vital for 

power plant operations, and we’re committed to ensuring the quality of the small 

quantity we consume, as well as the quality of the water we return to the pond. 

Thomas Hill Lake is a water of the United States and therefore we have a permit 

to discharge our cooling water into the lake. However, under the proposed rule, we 

are concerned about the status of canals used to channel water to the lake. 

In addition to providing cooling water, Associated manages coal combustion byproducts through a combination of practices including beneficial use, mine reclamation, as well as permanent disposal using permitted storage facilities, including 

ponds. If these ponds are determined to be waters of the United States, Associated 

may no longer be able to use them for storage and could incur significant costs for 

alternative management options, costs that we would have to pass on to our member consumers. 

MINE RECLAMATION

In the past, Associated operated coal mines to provide fuel for its coal-fired power 

plants. We closed those mines after we switched to low-sulfur coal and have been 

reclaiming the former mining sites, as required under the Surface Mining Control 

and Reclamation Act (SMCRA). We are very proud of our mine reclamation efforts, 

having restored thousands of acres of once-mined land to productive pasture, forests 

and wetlands receiving national awards for ‘‘exemplary reclamation.’’ Our concern 

now is that these activities will subject us to duplicative and perhaps conflicting 

Federal regulations. 

CONCLUSION

Throughout the years of change and challenge Associated has never lost focus on 

the reason it was formed: to provide economical and reliable power and support 

services to its members. As we go about providing this necessary service, we are 

troubled by new regulations that seem to have an outsized impact on rural America. 

These new regulations make simple business decisions increasingly difficult, and in 

fact, may conflict with other policy goals. We appreciate the subcommittee’s attenVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
46 

tion to this proposal of importance to Associated and electric cooperatives throughout the country. We look forward to continued discussion of these issues and are 

pleased to provide real-world examples of how decisions made in Washington, DC 

affect the day-to-day lives of rural Americans. Thank you for the opportunity to 

testify. I would be happy to answer any questions. 

Mr. MCCLINTOCK. All right. Thank you. I thank all of the 

witnesses for their testimony. 

I will now begin 5-minute questioning by the Members, and the 

Chair will begin. 

Mr. Martin, numerous communities in the United States are currently dealing with extended drought conditions. Will these 


88504.007.eps
47 

proposals make it more difficult to deal with the drought or less 

difficult? 

Mr. MARTIN. No question it would make it more difficult. Any 

time you have additional regulatory permitting, it delays many improvements and many projects across the West. 

Mr. MCCLINTOCK. What is involved in obtaining these permits 

from either the EPA or the Forest Service? 

Mr. MARTIN. Well, to get a permit from the EPA, it is usually 

through the Corps of Engineers. In the State of Washington, it is 

also through the Washington Department of Fish and Wildlife. It 

is a joint permitting process. Depending on the type of project, it 

can take years and can takes thousands of dollars. 

Mr. MCCLINTOCK. Suppose you just want to grade a road that 

crosses a ditch, for example. 

Mr. MARTIN. Those can take many, many, many months. 

Mr. MCCLINTOCK. Many months. How much money is involved in 

the permitting process? 

Mr. MARTIN. How much money? The permit itself is not that 

expensive. 

Mr. MCCLINTOCK. No, but meeting the requirements. 

Mr. MARTIN. It is all of the time and effort, and many times you 

have to hire experts who can analyze what the sort of effect will 

be to get that permit. 

Mr. MCCLINTOCK. I represent a large portion of the Sierra 

Nevada which have gullies running throughout it. There are an 

awful lot of water conveyances dating back to the mining days over 

100 years ago that are still operational, pass through many, many 

people’s properties, small creeks, streamlets and the like. 

If a small gulley running through your property joins another 

creek that joins another creek that joins a stream that joins a navigable river that runs through Forest Service land, under the proposed Forest Service rule, would I have to obtain a permit if I 

wanted to grade a driveway that crossed that gulley? 

Mr. MARTIN. I wish I could tell you for sure, but my guess under 

the proposed rule would be yes. 

Mr. MCCLINTOCK. And what would that involve me doing as a 

property owner? 

Mr. MARTIN. You would have to go through the Corps and the 

EPA and probably additional maybe state regulatory agencies. 

Mr. MCCLINTOCK. Now, the EPA says that the ‘‘Waters of the 

U.S.’’ rule is going to create more certainty. Does anybody agree 

with that? 

Mr. MARTIN. Not I. 

Mr. MCCLINTOCK. Anyone? 

[No response.] 

Mr. MCCLINTOCK. Mr. Clark, how would the ‘‘Waters of the U.S.’’ 

proposal make permitting more difficult and costly for your members? 

Mr. CLARK. Quite simply, it is going to add time. Time is delay. 

We have crossed over to the point now where even with our given 

regulations, it takes longer to permit a transmission line than it 

takes to build one. 

Mr. MCCLINTOCK. And I assume delay means money. 

Mr. CLARK. Delay means money. 

48 

Mr. MCCLINTOCK. And who ends up paying for that? 

Mr. CLARK. It is the ratepayers of the rural Missouri. 

Mr. MCCLINTOCK. Both the Forest Service and the EPA failed to 

consult with the states during the development of these proposals. 

This is on top of the fact that the Forest Service has been working 

on the Groundwater Directive for 8 years. 

On the Clean Water Act rule, the EPA denied requests by the 

states to have representatives on the Scientific Advisory Board that 

was instrumental in informing that rule. 

Mr. Tyrrell, was there any consultation from the Forest Service 

with your state over these 8 years? 

Mr. TYRRELL. Mr. Chairman, no, not to my recollection. We were 

not consulted in the preparation of the draft. 

Mr. MCCLINTOCK. And on the EPA’s water rule, did the EPA give 

you any good reason why a state expert could not sit on the 

Scientific Advisory Board that informed the rules development? 

Mr. TYRRELL. Mr. Chairman, I know that the State of Wyoming 

DEQ asked to have a representative on that board and that was 

not allowed. 

Mr. MCCLINTOCK. Were you afforded any meaningful opportunity 

to review and comment on the science used to justify the rulemaking before the EPA sent the rule to the Office of Management 

and Budget? 

Mr. TYRRELL. Mr. Chairman, no, we were not, and I think Western States Water Council has also opined on the lack of consultation with the states in general. 

Mr. MCCLINTOCK. Mr. Martin, your testimony details how the existing Clean Water Act impaired your client’s ability to implement 

state or local conservation planning. After 4 years of negotiations 

and discussions, your client was able to go forward on this project. 

Witnesses have said that the proposals we are considering today 

will actually complicate regulatory matters. How will the proposed 

‘‘Waters of the U.S.’’ rule and the Forest Service Groundwater 

Directive impact local irrigation districts that want to create storage and conservation projects that benefit people and species? 

Mr. MARTIN. It will slow the process down and cost a tremendous 

amount of money just to obtain any sort of a permit. 

Mr. MCCLINTOCK. Mr. Clark, final question. Could you explain 

the ambiguity of the ‘‘Waters of the U.S.’’ rule in terms of how 

transmission rights-of-way might be treated? 

Mr. CLARK. I can explain it in terms of words like ‘‘upland.’’ 

There are things that we do not understand. They are not clearly 

defined. The impact of that is just going to be misinterpretation. 

It is going to be challenges. It is going to be lawsuits, and it is 

going to be financial consequences. 

Mr. MCCLINTOCK. Thank you. 

The Chair now recognizes Mrs. Napolitano for 5 minutes. 

Mrs. NAPOLITANO. Thank you, sir. 

And while it has been brought up several times that the administration did not show up, I would like to clarify that EPA was not 

invited. 

For the record, Mr. Chairman, I have a letter I sent to Gina 

McCarthy, dated June 19, with some questions that would have 

49 

clarified some of it for the record, and the second one is a memo 

from the Department of the Interior in regard to today’s hearing. 

Mr. MCCLINTOCK. Without objection. 

Mrs. NAPOLITANO. And I will state for the record I will quote 

from it that there are other issues, and I would like to share this 

with you after the hearing so that you understand what they are 

answering to us as a committee. 

What they do state in paragraph 3 is that they will leave it to 

EPA and the court to discuss the details of the proposed rule. It 

is our understanding that the proposed rule is not designed to expand the applicability beyond existing regulation, and that is not 

designed to cover groundwater, and the rule does not expand the 

access reach to cover additional irrigation or alter existing water 

transfers, et cetera, et cetera. 

I would like to make sure that we share that with you so that 

you understand what they are saying. 

Also, if you are interested, we have and will get to you via some 

email capability the answers to some of the questions that were in 

the Transportation and Infrastructure Subcommittee to deal with 

some of the issues that you bring up today, Mr. Chair. I will deal 

with that later. 

But I would like to ask Mr. Martin. You are concerned about the 

proposed rule, that it would dictate the tributaries be jurisdictional 

along with water adjacent to tributaries and manmade conveyances. Are these features you raise concerns about jurisdictional 

under current rule? Are they jurisdictional under the current rule? 

Mr. MARTIN. If I understand your question, it is subject to the 

interpretation usually of local Corps people, and the people that we 

have run into have said that, yes, they are jurisdictional. 

Mrs. NAPOLITANO. Well, I would like to be able to see something 

so that we can take it up with the Corps because if it is not in the 

rule, then they should not be acting differently. 

Mr. MARTIN. We agree. 

Mrs. NAPOLITANO. And again, Mr. Martin, in general, if the jurisdictional determination has already been made and they are considered ‘‘Waters of the U.S.,’’ now then they would continue to be 

considered ‘‘Waters of the U.S.’’ 

If a jurisdictional decision has been made and they are not 

covered, then the rule would not expand coverage to them. 

Where in the proposal do you read that this expands coverage to 

those facilities? 

Mr. MARTIN. Because it talks about all ditches. Even though it 

says that they will be excluded, if you look at the definition of exclusion, there are enough questions there that it appears they come 

in the backdoor and they particularly include all ditches because of 

their connection to tributary waters. 

Mrs. NAPOLITANO. Well, that is something that maybe needs 

some clarification rather than the assumptions that it will impact 

them. 

Mr. MARTIN. We would like to have that type of clarification. 

Mrs. NAPOLITANO. Mr. Lemley, you spoke about the importance 

of clean water to the craft beer industry. I have one of those facilities in my area. So I understand the issue that they have already 

spoken to us about. 

50 

Would you tell us the importance of the industry as an employer 

and also as to the local economies nationwide? 

Mr. LEMLEY. Of course. Thanks for the question. 

According to the Brewers Association, which is our national trade 

group for craft brewers, the 2012 economic impact study was their 

latest available. The craft brewing industry contributes $33.9 billion to the U.S. economy. That represents the impact of those 2,700 

brewers, those 110,000 jobs, plus another estimated 250,000 jobs in 

both distribution and retail tiers. 

And all of those businesses by the Brewers Association definition 

are American owned companies. 

Mrs. NAPOLITANO. Would there be any other benefits that you 

could enumerate on? 

Mr. LEMLEY. Oh, of course. The number one benefit will be to ensure there is clean water to craft beer with. Of course, agriculture 

is very important to us. We may not completely agree on this one, 

but we need those agricultural products. It will ensure safe drinking water, we believe, to be available to approximately 117 million 

more Americans. 

And, you know, these rules as we have seen in Fort Collins, they 

hopefully prevent flooding, filter pollution, and supply critical fish 

and wildlife habitat. We saw that first hand in Fort Collins last 

year when we experienced flooding. 

Mrs. NAPOLITANO. I think it is related to it, but do you believe 

that the clean water rule helps provide clarity to businesses that 

depend on our clean water? 

Mr. LEMLEY. We believe that it helps provide clarity for our business, absolutely. 

Mrs. NAPOLITANO. Thank you. 

Mr. Tyrrell, your testimony brings up concerns regarding the 

treatment of groundwater and the proposed ‘‘Waters of the United 

States’’ rule, yet for the first time the proposal explicitly excludes 

the definition of groundwater. Would you not agree that that is an 

improvement over the previous rule that does not explicitly exclude 

groundwater? 

Mr. TYRRELL. Ranking Member Napolitano, I think that the confusion is that there is an exclusion for groundwater, but the inclusion of shallow subsurface water. In Wyoming, subsurface water is 

groundwater. So conceivably you will have a shallow subsurface 

connection between surface water bodies that may be jurisdictional 

aside from the exemption of groundwater in the rule. So it is really 

a clarity issue. 

We do not understand how shallow subsurface is not groundwater. 

Mrs. NAPOLITANO. Again, clarity. Thank you, Mr. Chairman. 

Mr. MCCLINTOCK. Mr. Tipton. 

Mr. TIPTON. Thank you, Mr. Chairman. 

I would like to thank our panel for taking the time to be able 

to be here. 

This is a disturbing onslaught, Mr. Chairman, that we are seeing 

come out of this administration, again, with the blue rays. Then we 

had conditional use of permit. We now have the regulatory scheme 

coming out of the EPA, which is essentially the biggest water grab 

in American history in my estimation, now being supplemented by 

51 

the Forest Service with their groundwater rules, impacting our 

states, impacting our communities, impacting our ability to be able 

to deliver affordable electricity for many of our communities. 

My district is much like the one you described in Missouri, not 

a lot of income coming in, but our senior citizens, our young families trying to be able to get a start are seeing more and more of 

their income being eroded by regulatory taxation, and this is of 

deep concern running throughout the West where water is a private property right. 

We have state law, and we have priority-based systems, which 

have worked well, to be able to provide clean, affordable water, hydroelectric power, ability to be able to grow our crops. 

But as I have listened to your comments going through, we are 

seeing that we are not seeing clarity come out. Mr. Martin, you just 

talked about the ditches once again. We are going to exclude 

ditches, but ditches are covered. 

So do you have any idea what you are talking about, what the 

end game is, what the result is going to be? 

And have they asked you? 

Mr. MARTIN. I do not. I think I would probably have to hire either a hydrologist or a hydrogeologist to make a determination 

every time I needed to do a little bit of work on a canal or ditch 

to figure out whether it was excluded or not excluded. 

Mr. TIPTON. So essentially the government is ringing the door 

saying, ‘‘We are here to help you.’’ You are actually going to see 

some hurt come out of this. It is going to cost more money, is it 

not? 

Mr. MARTIN. And it is going to delay very needed and very good 

projects. 

Mr. TIPTON. Does the Forest Service Directive, Mr. Martin, run 

contrary to longstanding Federal policy respecting the rights of 

states in regulating groundwater? 

Mr. MARTIN. No question. Every state has their own authorities 

and laws on how they regulate groundwater. The Forest Service is 

apparently trying to jump over that. 

Mr. TIPTON. What impact, if any, will the proposed rule, the 

Forest Service Directive on groundwater, have on pending reserved 

water right claims in states like mine, Colorado? 

Mr. MARTIN. It is going to have an adverse effect because now 

states are going to have to determine how the Forest Service rules 

and directives apply to state groundwater rights. 

Mr. TIPTON. And particularly when you are a headwater state 

like Colorado and some of our neighboring states in the West, 

right? 

Mr. MARTIN. That is correct. The State of Washington is very 

similar to Colorado. I believe all of our reservoirs in the Yakima 

Basin are on Forest Service lands. 

Mr. TIPTON. I think this is important because this is supposed 

to be a transparent administration. These are policies coming out 

of appointees who are put into office right now. Do you feel that 

the impacted stakeholders like yourself were adequately consulted 

during the development of this Directive? 

52 

Mr. MARTIN. Not at all. My understanding, this Rule has been 

under consideration for 8 years, and this is the first we have heard 

about it. 

Mr. TIPTON. So we have a policy that has been moving for 8 

years. It is the first you have heard about, no real contact coming 

through. How does that make you feel? 

Mr. MARTIN. Not very good. 

Mr. TIPTON. Not very good. I can imagine. 

So, Mr. Tyrrell, in the State of Wyoming, you guys are feeling 

some of the impacts that I know we are in Colorado as well. The 

Forest Service has stated in its submitted testimony, and I will 

quote this, ‘‘Nothing in the proposed directive would affect states’ 

role in the management of water rights.’’ 

If the Forest Service would actually have shown up here today 

to be able to testify, they could probably go into details about that 

statement, but you deal in state water rights every day. In your expert opinion, the Forest Service statement I read, is that correct? 

Mr. TYRRELL. I do not believe it is, Representative Tipton. I do 

think it certainly had clarity problems much like the WOTUS rulemaking. We do not know the effect of their groundwater management implications on forests. We do know that they are seeking by 

assertion a reserved right to groundwater, which I think is inappropriate. That would put a priority pinch on junior appropriators 

already on the force. 

So the effects of the Directive are unknown and certainly scary 

at this point. 

Mr. TIPTON. I think that is part of the challenge that we are seeing, do you not? We are going after the surface water. Now we are 

going after the subsurface water that is coming in, the groundwater that is coming in, and these policies and the impacts that 

they are going to have on our communities have the great potential 

literally to be devastating to our farm and ranch communities and 

our ability to be able to generate that hydroelectric power and to 

be able to provide for some of the essential needs that we have in 

each of our states. 

So thank you for being here. 

Mr. Chairman, my time has expired. 

Mr. MCCLINTOCK. Thank you, Mr. Tipton. 

Mr. DeFazio. 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

First to Mr. Lemley, I appreciate the fact that you mentioned the 

hops and barley in the Yakima Valley, but be it known that we are 

doing some great barley and doing a lot of hops research in the 

Willamette Valley, and before our blight back in the 1930s, we 

were the principal producer, and we are coming back. 

Mr. LEMLEY. And we use both. So thank you. 

Mr. DEFAZIO. Yes. Just added. Sorry, but I had to. 

Mr. Clark, regarding the co-ops, there are a number of questions 

you raise in your testimony that I wonder if you have directed 

them to the Agency and asked specifically because none of these 

are concerns about the transmission distribution and the ditches 

that might run along your right-of-way to get in there and maintain those, and whether or not even though those are uplands, 

whether those would become regulated in any way, et cetera? 

53 

I mean, have you directed some of the issues you are raising in 

your testimony to the Agency to say, ‘‘Can you clarify this for us 

now?’’ 

Mr. CLARK. It is my understanding that there have been some 

questions asked. I believe that that is going to be an interpretation 

that is going to be on a project-by-project basis. Where the next 

new transmission or where we are working to maintain the existing transmission line, what structures are going to be replaced? As 

you are standing there, someone is going to be faced with the decision of does this particular ditch, creek, stream apply to this definition. 

And I do not believe without clarification in the document beforehand that you can address your questions adequately in advance. 

It is going to be administered in the field by the boots on the 

ground, the local Corps administrations and their interpretation as 

to whether or not you need a 404 permit. 

Mr. DEFAZIO. But if they were to better defined ‘‘upland,’’ I 

mean, I assume that most of these ditches you are talking about 

are not permanent flowing and they do not directly connect into another body of water which is jurisdictional or into a wetland, which 

is jurisdictional. 

Mr. CLARK. I believe in most cases that would be correct. 

Mr. DEFAZIO. OK. So if you had a clear definition of ‘‘upland,’’ 

it would mean some certainty. 

Mr. CLARK. It would provide additional clarity, yes, sir. 

Mr. DEFAZIO. OK. And then there was one on ponds management. Again, you are concerned about the status of canals used to 

channel water to the lake. Has that one been addressed directly, 

you know, to the Agency? 

I mean, it seems to me the way to comment on the proposed rule 

is either to raise these questions in the proposed rule and say, ‘‘We 

are concerned. These things need further definition. You know, 

they should be exempt activities,’’ or to try and get the Agency 

now—it is not always easy to get them to do that—to say, you 

know, ‘‘No, actually that will be exempt under this rule.’’ 

I mean one way or another, because this is a proposed rule. 

Mr. CLARK. There have been general questions submitted, but 

with regard to how it applies to a specific project, you are never 

going to get clarity until you are faced with that decision. 

Mr. DEFAZIO. Well, there can be categorical exclusions of certain 

types of projects. 

Mr. CLARK. And our experience and what I have seen in this proposed rule is these exemptions. The category exclusions are strict 

to the point where a half of an acre for a transmission line does 

not allow for the exclusion that I believe the exclusion was intended for. It is going to require every crossing to pass a litmus 

test of whether or not that qualifies as a ‘‘Waters of the United 

States.’’ 

Mr. DEFAZIO. Half acre, is that for the entire length of the line 

no matter how long it is? 

Mr. CLARK. It is a by project definition, yes, sir. 

Mr. DEFAZIO. And what is a project definition? I mean, if I am 

building a 20-mile long transmission line, is that a project? 

54 

Mr. CLARK. It used to be a project, and now I believe it is going 

to require a by body crossing, and that is exactly my point. The 

rules are changing such that there is not clarity as to what you are 

even permitting when you go for an initial permit. 

Mr. DEFAZIO. OK. Well, again, as I did in my opening statements, I suggest you make these as very specific concerns addressed to the Agency in its rulemaking. I have to admit that I am 

not intimately familiar with this particular rulemaking. I have 

been working on another one which has to do with oil tank cars 

I am more familiar with and just talked to the head of OMB, was 

doing that yesterday about how that rule might be, and he agreed 

with a number of concerns I raised. 

So I mean, we should not just say they will not listen. We should 

try and make them listen and propose reasonable concerns to them 

during this comment period. That is what the law allows for and 

that is why we got an extended comment period. 

Mr. CLARK. I appreciate your comments, and we do participate 

in those comment periods. 

Mr. DEFAZIO. Thank you. 

Thank you, Mr. Chairman. 

Mr. MCCLINTOCK. Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Clark, thanks for being here today. Your testimony noted, I 

think, 5 to 6 percent of Associated’s power supply comes from hydropower provided by the Federal Government’s hydropower 

projects. As an electric co-op, please provide additional detail about 

the importance of the Federal hydropower to your member 

consumers. 

And I would love to hear your concerns in general about how 

these new regulations like the ‘‘Waters of the U.S.’’ proposal may 

affect electricity for all rural Missourians. 

Mr. CLARK. Specifically with regard to Southwestern Power 

Administration, I made a brief reference to that earlier. Low cost 

hydropower is very important to us in two ways. We are able to 

schedule the low cost hydro at the most critical times when the 

electricity is the most expensive, and also the supplemental, the 

gift from God rain that we get provides us with the cheapest form 

that we can use to provide power to our neighbors or to our 

members. Very critical to manage our system, and it keeps costs 

low. 

Southwestern Power Administration, by the way, is also an 

owner and maintainer of transmission, and what I would say is 

they will be faced with the exact same challenges to interpret and 

implement these same forms of overregulation that any utility will, 

whether it be a cooperative, Southwestern is going to have the 

same costs that they will charge through to the reference power 

customers. Associated will pay 25 percent of that. 

Mr. SMITH. I thought your testimony in making the statement 

that it is longer to go through the permit process to build the transmission lines than to build it feels like it is something very similar. 

It is longer to get the permit approved for the Keystone Pipeline 

than it is to build the Empire State Building. So it is like a common theme right now that we are facing. 

55 

Mr. Parker, I have a clarifying question about the testimony submitted by the Bureau of Reclamation. I would ask them, but apparently, of course, they are not here. They wrote, ‘‘We also appreciate 

that the rule does not change in any way existing Clean Water Act 

exemptions from permitting for discharges of dredged and/or fill 

material in Waters of the U.S. associated with agriculture.’’ 

Mr. Parker, that statement seems to me to be quite misleading 

at best. Is it your understanding that this rule will not affect Clean 

Water Act exemptions for agriculture? 

Mr. PARKER. Well, I think that is a misstatement. As you look 

at the impact on agriculture, there is an exemption for 56 practices, 

I believe it is, but you have to follow NRCS guidelines in order to 

establish and meet that exemption. 

Now, I guess some questions and uncertainty come into play 

here. Is NRCS, that heretofore has been a friend of farmers and 

ranchers, are they becoming regulatory and are they going to be a 

policing agency? 

Also, not all producers participate with NRCS. How do they participate in the exemption? 

I think the most telling concern we have is that this new level 

of potential regulation, if you don’t meet, opens our farmers and 

ranchers up to citizen lawsuits. So if somebody was to establish 

and tell us there is more uncertainty in agriculture as exempted, 

I think just the opposite, Mr. Smith, is occurring. 

Mr. SMITH. Thank you. 

Mr. Martin, in the Bureau of Reclamation submitted testimony 

today they also stated that the EPA and the Corps included a proposal exclusion in the rule for ditches, excavated wholly in uplands 

and draining only uplands with less than perennial flow, including 

those that may carry groundwater. 

In light of your testimony today, can you explain how this statement is also misleading and may lead individuals who operate 

drainage districts, like those throughout my district, believe that 

they have an exemption when they actually do not? 

Mr. MARTIN. Well, if you look at the first part of the exemption 

when they just say ‘‘ditches,’’ you would think you might be excluded, but then you have to get into the as long as they meet 

these certain requirements, which is the ‘‘wholly’’ in uplands. 

Uplands is not well defined. Draining only uplands, not well defined. 

Many ditches can be hundreds of miles long. Are they draining 

only uplands for the whole 100 miles? And even if they drain something that is not an upland for just a small portion of that ditch, 

does that bring the whole ditch into the jurisdiction, Federal jurisdiction? 

And then you also talk about less than perennial flows. Many of 

these ditches do flow on a year-round basis, but the source of the 

water is no different than if they were an intermittent stream. 

These are irrigation Ag. return flows in these ditches, and just because you have them on a year-round basis, now are all ditches 

now back-included? 

Those are just some of the questions that we have on the Rule. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. MCCLINTOCK. Mr. Huffman. 

56 

Mr. HUFFMAN. Thank you, Mr. Chair. 

I want to thank the witnesses for their testimony. 

You know, maybe there is some valid criticism to the point that 

some additional specificity would be desirable in a few of these 

areas, after listening to the testimony and reading through the 

record. However, I think it is unfair to proceed with all of these 

worst case scenarios and hyperboles and colloquies about what if 

this interpretation was given to this type of ditch and additional 

permitting and additional burdens, et cetera, extending into some 

fairly wildly exaggerated scenarios. 

To have that kind of colloquy as if there has not been very specific testimony from the administration on many of these exact 

same points, the Transportation and Infrastructure Subcommittee 

had a hearing where the administration was asked about these 

things, many of the same scenarios that the Majority and the witnesses here have brought up as fears and concerns, and they were 

answered quite specifically. 

And it is very clear from this record, and if we are going to have 

an honest discussion about this we need to acknowledge it, that 

this is not an expansion of Clean Water Act authority. It is just 

not. In fact, fewer ditches are covered under this proposed new 

guidance than were covered under the 2008 guidance. 

We have question after question that has been asked of administration witnesses: ditches on mine sites, prior converted croplands, 

wastewater treatment, other ditches, uplands, artificial lakes, a 

channel created by a washed out irrigation ditch, on and on. All of 

these scenarios were put to administration witnesses. 

And on point after point after point the answer was very clear: 

no, those are not covered. Those are not jurisdictional. There is no 

new expansion of authority. There is no new permitting. 

So to continue to pretend like this is some vast overreach, frankly, I think, calls into question the credibility of this hearing. 

I am also struck by the selective interest in deference to states 

on water rights because I am hearing that theme a little bit, especially with respect to groundwater. 

And, by the way, I want to commend Wyoming and other states 

that do regulate groundwater. I come from California where it is 

the wild Wild West truly, and we have no regulation of groundwater. So hats off to you folks in other western states. 

But it was just a few months ago that this House passed, with 

the Republican Majority largely passing it, a bill that would have 

run roughshod over 100 years of California water rights, would 

have stripped control and authority from the State Water 

Resources Control Board, and basically laid waste to all sorts of 

water rights provisions in the State of California. 

My understanding is there are negotiations, possibly a coming 

Conference Committee, taking place on that bill right now, but 

water rights in the State of California did not seem to trouble the 

Majority one bit when we passed that sweeping, preemptive piece 

of legislation a few months ago. 

And if I am not mistaken, a couple of my colleagues on the 

Majority served with me in California when I and others were always trying to give the state more authority to regulate groundwater. We never were successful. That was always fiercely opposed. 

57 

However, we see here a hearing that is sort of premised around 

the idea that the Federal Government on the Forest Service lands 

should leave this groundwater stuff to the states. Well, it seems to 

me now we are really in an interesting predicament because if you 

do not want the State of California to regulate groundwater and 

you do not want the Federal Government to regulate groundwater, 

then I guess we are in a situation where this is just not a very serious policy inquiry. Whatever this hearing may be about, it does not 

appear to be about any kind of consistent or coherent deference to 

states or water policy or an honest look at the record that has actually been produced by the administration on what these proposed 

rules actually mean. 

So that was a statement and not a question, but I will ask Mr. 

Tyrrell one question in the time I do have remaining. I appreciate 

your testimony because it goes to the point that our clean water 

laws are actually important to our country, to our economy. 

And I guess I want to ask you in a fairly open ended way. You 

are a businessman. Do you think it is appropriate as a business operation that you are required to have pollution controls if you discharge into small streams and wetlands and tributaries that 

contribute to the Waters of the United States? 

Mr. LEMLEY. Sir, are you asking me or Mr. Tyrell? 

Mr. HUFFMAN. Mr. Tyrrell. I am sorry. No, my witness from the 

New Belgium Brewery. 

Mr. LEMLEY. Yes, sir. That is me. 

Mr. HUFFMAN. Yes. 

Mr. LEMLEY. Of course we believe that if it were to discharge 

water into stream, headwaters, ephemeral streams that we should 

be regulated. We have a storm water permit for our storm water 

at the brewery and all of the required permits for our wastewater 

treatment plant. 

Mr. HUFFMAN. Great. Thank you all for your testimony. I appreciate it. 

Mr. MCCLINTOCK. Mr. Gosar. 

Dr. GOSAR. Thank you, Mr. Chairman. 

On June 2, Congressman David Schweikert and I held a joint 

field hearing in Arizona on the EPA’s proposed rule to expand the 

definition of navigable waters of the United States. Five Members 

of Congress, including Lamar Smith, Chairman of the House 

Science, Space and Technology Committee, participated in the 

hearing, and we heard testimony from nine Arizona witnesses. 

That hearing provided some great insights in regards to real people in Arizona who will be negatively impacted by a rule made here 

by bureaucrats in Washington, DC. Let me highlight some of those. 

Stephanie Smallhouse, testifying on behalf of the Arizona Farm 

Bureau, testified that the newly proposed EPA rule for ‘‘Waters of 

the U.S.’’ would be devastating to my family’s farming operation, 

as well as hundreds of others in agricultural entities in Arizona. 

This proposed rule is an economic disaster and a dream killer for 

my kids. 

Bob Lynch, a very accomplished water attorney, testifying on behalf of the Irrigation and Electrical Districts Association of Arizona 

said, ‘‘The EPA and the Corps have driven a truck through Justice 

Kennedy’s opinion in Rapanos. This may be the biggest jurisdicVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
58 

tional overreach I have witnessed in 50 years of law practice. I 

hate to say it, but the only people who are coming out ahead on 

this proposed rule are lawyers.’’ 

Just like the hearing we are holding today, the Agencies are 

invited, and just like the hearing we are holding today, not one 

Agency official showed up to hear from real people or answer questions about the proposed rule. 

I want to make sure that all the people who took the time and 

effort to participate in the 3-hour June 2 Arizona hearing have 

their voices heard. Mr. Chairman, I would like to ask permission 

to submit the witness testimonies and statements from the hearing 

for the Record. 

Mr. MCCLINTOCK. Without objection. 

Dr. GOSAR. I do have a few questions that I would like to take 

the time to ask. 

Now, the ‘‘Waters of the U.S.’’ proposed rule directly contradicts 

aspects of four U.S. Supreme Court decisions. These decisions have 

restrained Federal agencies and imposed limits onto the extent of 

Federal Clean Water Act authority. Mr. Martin, Mr. Tyrrell, Mr. 

Parker and Mr. Clark, do you believe the EPA is overreaching with 

the ‘‘Waters of the U.S.’’ proposed rule in regard to the Supreme 

Court? 

Mr. MARTIN. I do. 

Dr. GOSAR. Now, Mr. Lemley, are you familiar with the 

Constitution? 

Mr. LEMLEY. Yes, sir. 

Dr. GOSAR. And the law of the land is held by what? The last 

jurisdiction would be what? Would it be the Supreme Court? 

Mr. LEMLEY. Yes, sir. 

Dr. GOSAR. Are you kind of taken back that there were actually 

four decisions that contradict this expansion of power? Does that 

kind of concern you? 

Mr. LEMLEY. No, sir, it does not because—— 

Dr. GOSAR. Really? Whoa, whoa, whoa. So the law of the land, 

the Supreme Court jurisdictionally is number ‘‘uno,’’ right? You just 

said that. So that does not bother you, that you are accepting that 

the Federal bureaucracy is superseding the Supreme Court? That 

does not bother you? 

I think that is interesting. 

Mr. Tyrrell, you testified that the authority for the proposed directive on groundwater management does not exist. If there is no 

statutory authority that exists, how does the Federal Government 

satisfy asserting Federal reserve rights to groundwater? 

Mr. TYRRELL. Mr. Chairman, the only time I have seen a Federal 

reserve right asserted in any type has been either through congressional action or through the result of the state or Supreme Court 

litigation or settlement. I have not seen it asserted as policy before, 

and that was troubling to me. 

Dr. GOSAR. Especially in light of what I just cited. 

Mr. Tyrrell, you also testified that the Forest Service Groundwater Directive will harm state’s rights negatively and negatively 

impact your state’s water users. In a time of extreme drought in 

the West and scarce water resources, how concerning is this directive? 

59 

And can you elaborate on some of the possible consequences for 

state and private water users? 

Mr. TYRRELL. Mr. Chairman, Representative Gosar, yes, the concern, number one, would be timing. To the extent the Directive 

would delay or impact anybody being able to get a permit on the 

Forest if they are not the Forest, and we do issue permits to grazing permittees, water right permits to grazing permittees for wells, 

stock ponds on Forest property. I do not know the impact at this 

point of the Groundwater Directive on those people’s ability not to 

get my permit, but to get the ability to build it on their allotment. 

Second, the purported connection or the presumed connection of 

groundwater to surface water has impacts that we cannot see. If 

that connection which is contrary to Wyoming State law, by the 

way, which we presume that groundwater and surface water are 

separate until they are shown to be connected, and then we regulate them in that way; if the connection is presumed to exist, there 

could be effects on surface water in the regulation of those surface 

waters and work on diversions, et cetera, because of the groundwater connection. That is a concern of ours. 

Dr. GOSAR. Well, in Arizona, it is the same way. We have some 

delineation just like Wyoming does. So we do have the same concept of oversight. 

So thank you, Mr. Chairman. I yield back. 

Mr. MCCLINTOCK. Mr. LaMalfa. 

Mr. LAMALFA. Thank you, Mr. Chairman. 

I, too, come from California, the far north part where we fight 

against regulations, overreaches all the time. So we do get into conundrums sometimes. Do we want to be more heavily regulated by 

a state or a Federal body? For me it comes down to what provides 

the most freedom. 

In California that might more often be maybe a Federal reg. In 

other free states like Wyoming, you might be safer under a state 

reg. So it is kind of a tough deal one way or the other. On my side, 

my tie goes to the citizens. 

So it is fascinating the different ways things can be interpreted 

in this process. So just a question for Mr. Lemley from New 

Belgium Brewing Company. 

You have growers you contract with for your barley and your 

hops and some other inputs used, grains. Do they know about your 

position on these? Are they part of your trifold on sustainable 

growing and all of that that you have put out for people to see in 

Fort Collins and stuff like that? 

Mr. LEMLEY. I am sure they are aware of our position on this. 

We have been very public about it. 

Mr. LAMALFA. OK. All right. I have a lot of grain growers in my 

district I know of and across the Fruited Plain, Farm Bureau guys, 

and a lot of them are not happy with these new regulations. They 

feel like, as in my opening statement, if they want to change their 

irrigation system in any way now they are going to be subject to 

that being a waterway of the United States or somehow navigable. 

What are the lines of beer that you all have? Fat Tire is one of 

them? 

Mr. LEMLEY. That is correct. Yes, Fat Tire, Ranger, Shift. 

Mr. LAMALFA. Ranger, Shift. OK. 

60 

Mr. LEMLEY. Several beers every year. 

Mr. LAMALFA. OK. My guys will be interested in what beer products they will be drinking after work. 

So Mr. Tyrrell, the EPA’s proposed redefining of these waterways 

of the United States under the Clean Water Act broadens existing 

categories—I do know how it can be interpreted this is somehow 

narrower or lesser—of Federal jurisdiction in the tributaries, et 

cetera, and areas of jurisdiction like shallow subsurface water connections. This is new stuff. 

We have heard about the Supreme Court opinion that states that 

Federal water jurisdiction is not unlimited, or meaning is limited. 

We heard EPA’s proposed rules consider most, if not all, waters 

interconnected without regard to how much or how often they actually contain water. 

There are supposed to be exemptions, such as a heavily qualified 

exemption in the rule for ditches, draining upland as we talked 

about a little bit earlier, not well defined, subjective determinations 

and litigation. And this is the scary part for my growers, for my 

constituents because they are subjective. 

So maybe you have one representative coming out to check on 

what you are doing or flying over, whatever they do. They might 

think it is OK this day, this week, and then the next time you go 

to do it on a different field, changing a crop, plowing or whatever, 

you might have a different bureaucrat that shows up and says, 

‘‘You cannot do that, and we are going to haul you into court,’’ as 

some of my people have been threatened under lawsuit, litigation, 

and it goes on for months, and years before they even get an 

answer. 

So they are sitting there with their land tied up, unable to be 

productive on it, still paying taxes, still making land payments, all 

of that because a bureaucrat or someone has a threat against them. 

So, Mr. Tyrrell, with all of the different ways EPA can find a 

water to be jurisdictional under the proposed rule, can you think 

of a water body that would not be under Federal jurisdiction under 

the proposed rule? 

Is there anything that can really and truly be exempt, again, 

taking into account a different interpretation by a different bureaucrat, different day to day? 

Mr. TYRRELL. Mr. Chairman, Representative LaMalfa, I cannot 

off the top of my head, and the concern is that with the proposed 

rule we have talked to the local Corps office, for example, and it 

looks to be case by case, which means there is a lack of clarity in 

knowing whether you are impacted or not. 

Mr. LAMALFA. If you get an opportunity to litigate or fight or 

whatever, maybe in every case what you may want to do even if 

you are putting in a pipeline for better water efficiency, better 

water retention, in your own blankety-blank ditch, I mean, I have 

a farm. OK? My family, those before me, built the drainage ditches. 

They built the irrigation ditches. Now someone is telling me that 

these are no longer mine. They belong to the Federal Government 

basically. 

I do not see them paying the taxes on it. If I just decide to fill 

that ditch in because I am tired of it, am I going to have to hear 

from them on this? 

61 

I mean, where does it stop? 

Mr. TYRRELL. Once again, I think I do not know. The clarity is 

the issue for me. When ditches are referred to as constructed wholly in uplands, that is of no help to me because our water users 

have to have one end of their ditch on the creek, and most of the 

ditches that our water users are concerned about and that I am 

concerned about on their behalf are those that divert water for irrigation or even municipal use. 

And the question is those are not probably going to qualify as 

wholly upland. Parts of them may cross uplands, but where they 

divert and where they use water are not going to be in uplands. 

They are going to be in lowlands, and that is the question that we 

have, the effect on ditches defined as wholly upland. 

We do not have many of those that are of concern. It is the other 

thousands of miles of ditches. 

Mr. LAMALFA. OK. My time is up, sir, but thank you again. 

Again, me and my beer drinking, grain growing friends are going 

to be very interested in how this comes out. I think it needs to be 

withdrawn because this is really a shot across the bow of all of us 

in the West. 

Thank you, Mr. Chairman. 

Mr. MCCLINTOCK. Mr. Costa. 

Mr. COSTA. Thank you very much, Mr. Chairman. 

I think this subcommittee’s focus today on this area is important, 

and I think that the questions and the comments by my colleagues 

really point out the frustration and the concern as these proposed 

regulations are being considered and what will occur if they are implemented while our worst case fears come home. 

Mr. Martin, in your written testimony you cite the numerous regulations that are currently out for public comment. You noted 

seven different rules that could have a significant impact on water 

users and providers, three of which are directly related to the implementation of the Endangered Species Act, which has been very 

problematic as you may know in California as it relates to the operations of both our Federal and state water projects that have added 

to a Mother Nature drought to a manmade regulated drought that 

has exacerbated the circumstance. 

On May 1, 2014, I along with many of my colleagues sent a letter 

to Administrator McCarthy and Secretary McHugh requesting that 

the Clean Water Act rule be returned to the Agencies until scientific basis for the rule is complete. 

Mr. Chairman, we have over a majority of the House of 

Representatives on a bipartisan basis that have signed this letter. 

I would like to submit it for the record. 

Mr. MCCLINTOCK. Without objection. 

[The letter to Administrator McCarthy and Secretary McHugh 

dated May 1, 2014 presented by Mr. Costa follows:] 

62 

CONGRESS OF THE UNITED STATES, 

WASHINGTON, DC, 

MAY 1, 2014. 

Hon. GINA MCCARTHY, Administrator, 

U.S. Environmental Protection Agency, 

1200 Pennsylvania Avenue, NW, 

Washington, DC 20460. 

Hon. JOHN M. MCHUGH, Secretary, 

Department of the Army, 

The Pentagon, Room 3E700, 

Washington, DC 20310. 

DEAR ADMINISTRATOR MCCARTHY AND SECRETARY MCHUGH: 

We write to express our serious concerns with the proposed rule re-defining the 

scope of Federal power under the Clean Water Act (CWA) and ask you to return 

this rule to your Agencies in order to address the legal, economic, and scientific deficiencies of the proposal. 

On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. 

Army Corps of Engineers (USACE) released a proposed rule that would assert CWA 

jurisdiction over nearly all areas with any hydrologic connection to downstream navigable waters, including man-made conveyances such as ditches. Contrary to your 

agencies’ claims, this would directly contradict prior U.S. Supreme Court decisions, 

which imposed limits on the extent of Federal CWA authority. Although your agencies have maintained that the rule is narrow and clarifies CWA jurisdiction, it in 

fact aggressively expands Federal authority under the CWA while bypassing 

Congress and creating unnecessary ambiguity. Moreover, the rule is based on incomplete scientific and economic analyses. 

The rule is flawed in a number of ways. The most problematic of these flaws concerns the significant expansion of areas defined as ‘‘waters of the U.S.’’ by effectively 

removing the word ‘‘navigable’’ from the definition of the CWA. Based on a legally 

and scientifically unsound view of the ‘‘significant nexus’’ concept espoused by 

Justice Kennedy, the rule would place features such as ditches, ephemeral drainages, ponds (natural or man-made), prairie potholes, seeps, flood plains, and other 

occasionally or seasonally wet areas under Federal control. 

Additionally, rather than providing clarity and making identifying covered waters 

‘‘less complicated and more efficient,’’ the rule instead creates more confusion and 

will inevitably cause unnecessary litigation. For example, the rule heavily relies on 

undefined or vague concepts such as ‘‘riparian areas,’’ ‘‘landscape unit,’’ ‘‘floodplain,’’ 

‘‘ordinary high water mark’’ as determined by the agencies’ ‘‘best professional judgment’’ and ‘‘aggregation.’’ Even more egregious, the rule throws into confusion extensive state regulation of point sources under various CWA programs. 

In early December of 2013, your agencies released a joint analysis stating that 

this rule would subject an additional 3 percent of U.S. waters and wetlands to CWA 

jurisdiction and that the rule would create an economic benefit of at least $100 million annually. This calculation is seriously flawed. In this analysis, the EPA evaluated the fiscal year 2009–2010 requests for jurisdictional determinations—a period 

of time that was the most economically depressed in nearly a century. This period, 

for example, saw extremely low construction activity and should not have been used 

as a baseline to estimate the incremental acreage impacted by this rule. In addition, 

the derivation of the 3 percent increase calculation did not take into account the 

landowners who—often at no fault of their own—do not seek a jurisdictional determination, but rather later learn from your agencies that their property is subject 

to the CWA. These errors alone, which are just two of many in EPA’s assumptions 

and methodology, call into question the veracity of any of the conclusions of the economic analysis. 

Compounding both the ambiguity of the rule and the highly questionable economic analysis, the scientific report—which the agencies point to as the foundation 

of this rule—has been neither peer-reviewed nor finalized. The EPA’s draft study, 

‘‘Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence,’’ was sent to the EPA’s Science Advisory Board 

to begin review on the same day the rule was sent to OMB for interagency review. 

The science should always come before a rulemaking, especially in this instance 

where the scientific and legal concepts are inextricably linked. 

For all these reasons, we ask that this rule be withdrawn and returned to your 

agencies. This rule has been built on an incomplete scientific study and a flawed 

63 

economic analysis. We therefore ask you to formally return this rule to your agencies. 

Sincerely, 

CHRIS COLLINS, 

KURT SCHRADER, 

BILL SHUSTER, 

LAMAR SMITH, 

FRED UPTON, 

DOC HASTINGS, 

FRANK LUCAS, 

COLLIN PETERSON, 

HAL ROGERS, 

SAM GRAVES, 

BOB GOODLATTE, 

DAVE CAMP, 

DARRELL ISSA, 

JOHN KLINE

PETE SESSIONS, 

JEB HENSARLING, 

JEFF MILLER, 

CANDICE MILLER, 

MIKE ROGERS, 

BOB GIBBS, 

MIKE MCCAUL, 

PAUL RYAN, 

Members of Congress. 

Mr. COSTA. And we hope that an answer will be forthcoming. 

We also understand that the rule, the EPA and the Corps have 

relied on what they call a draft synthesis which is currently under 

review by the Scientific Advisory Board of more than 1,000 published, peer-reviewed scientific reports. In the preamble of the proposed rule, the Agencies state that the rule will not be finalized 

until the Scientific Advisory Board review and final report are 

complete. 

Many of us in California as a result and also the Western States 

are concerned that the regulated community has expressed serious 

concerns about the final report not being available in time for public comment on the period of the rule. 

A couple of questions, Mr. Martin. Do you believe that the scientific basis for the rulemaking should be available for review prior 

to the rulemaking process being initiated? 

Mr. MARTIN. No question, Congressman. 

Mr. COSTA. OK. 

Mr. MARTIN. These are very complex rules, and if they are still 

in draft form, the underlying basis for that, it is very difficult to 

read these rules. 

Mr. COSTA. And what are the challenges to the regulated community if the scientific basis for the rule is also in a draft form during 

the public comment period on the rule? 

Mr. MARTIN. That’s correct. 

Mr. COSTA. Therein lies the whole purpose of why we are trying 

to call time out, in essence, to get an understanding because the 

potential implications of this rulemaking is far and wide, and I for 

one am very fearful of the law of unintended consequences, and 

maybe that was not the intent, but the regulatory framework and 

the challenges that we have had in California just as an example, 

64 

in the last decade in the use of best science because a question as 

new science becomes available and as other factors are considered 

in terms of the contributions to the impacts of the waterways we 

are trying to deal with. 

So I am very concerned. The Environmental Protection Agency 

needs to, I think, sit down and provide an opportunity for those 

who are potentially to be regulated, an opportunity to understand 

the breadth and width and scope of what these proposed regulations will do, and that is not happening as far as I can tell. 

Do you care to comment? 

Mr. MARTIN. We agree completely with that, Congressman. 

Mr. COSTA. Would any of the other witnesses care to comment? 

Mr. LEMLEY. I would like to. Thank you for a brief minute here. 

Obviously there needs to be clarity in the regulation, which is exactly why I think we are talking about a proposed comment. The 

comment period is open until October, I believe, and I just do not 

want us to sit here and think like the rule has already been accomplished, when there is time for a back-and-forth with the Agency. 

Mr. COSTA. Mr. Chairman, I do not know if it is appropriate, but 

certainly I think it ought to be under consideration for a potential 

subcommittee hearing to allow those in California to testify on this 

proposed rule and where we might be able to make a difference. 

I mean, this comes up time and time again about the potential 

impacts and the fears and the concerns, given the whole nature of 

what has taken place over the last just 8 years in California. 

My time has expired. I want to thank the members of the subcommittee and the witnesses for your testimony and look forward 

to continuing to work on this important issue. 

Mr. MCCLINTOCK. Thank you. 

Ms. Lummis. 

Mrs. LUMMIS. Well, thank you, Mr. Chairman. 

I want to thank Pat Tyrrell, our Wyoming State Engineer, for 

testifying today. 

There really is no position more important in the State of 

Wyoming than the State Engineer, and Mr. Tyrrell comes from a 

long line of highly qualified advocates for Wyoming water, for state 

regulation, and his work with state engineers throughout the West 

has made for very cooperative relationships, and the work that 

Western state engineers do on working with each other on water 

issues, trying to resolve them before they reach the courts, has 

been extraordinary. 

And they can even be resolved in the courts if necessary. Hence 

our concern, that now the Federal Government is weighing in in 

areas where they have never weighed in before, and bringing this 

issue through Federal rulemaking is something that states just 

find contemptible. 

Here is an example, and now I would like to start asking my 

questions. Mr. Tyrrell, in Wyoming, is it not true that surface 

water and groundwater are regulated separately unless studies 

confirm that they are so connected as to constitute one source of 

supply? 

Mr. TYRRELL. Mr. Chairman and Representative Lummis, yes, 

that is correct. 

65 

Mrs. LUMMIS. Now, does the Forest Service reverse this presumption and presume interconnectivity unless proven otherwise? 

Mr. TYRRELL. Yes, they do in their Directive, proposed Directive. 

Mrs. LUMMIS. Now, can you explain the significance of that 

Directive and what that would do and how it might impact water 

rights holders in Wyoming and elsewhere in the West? 

Mr. TYRRELL. The concern that I have is the connection to surface water might then lead to regulatory effects in the surface 

water regime. Another part of the proposed Directive I failed to 

mention a minute ago is their reach onto adjacent lands which are 

not Forest lands. My concern there might be a water proposal, a 

permit application into my office off the Forest that would purport 

or propose to produce groundwater or build a stock dam or some 

other water feature that might then be challenged because of a connection to groundwater on the Forest, a presumed connection. 

So the cost of disproving that connection would fall to the 

applicant. 

Mrs. LUMMIS. In order to do your job effectively as State 

Engineer, how important is it that the Forest Service play by the 

same rules as any other land owner or water user in the state? 

Mr. TYRRELL. It is vitally important, and it is part of the reason 

we entered an MOU with them just 2 years ago. The Forest uses 

water through their own uses at campground and offices and for 

their own rights, and they get water rights from the State of 

Wyoming to do that. 

We also have private permittees on the Forest that get permits 

in their name, and they have to be able to exercise those water 

rights. It is vitally important to be able to access that water whether you are an allottee or the Forest itself. 

Mrs. LUMMIS. Can you walk us through how the Forest Service 

Directive intrudes on state water rights and contradicts the MOU 

that you currently have with the Forest Service? 

Mr. TYRRELL. The primary concern I have with contradiction 

with state water rights, and I have mentioned this already, is the 

proposed assertion of reserve rights. As relates to the MOU, we negotiated that MOU to clarify our permitting process when either 

private or Forest permit applications for water rights come into my 

office. That MOU says nothing about reserve rights to groundwater. That MOU says nothing about the Forest Service commenting on applications on adjacent lands. 

The MOU has a 30-day window for Forest comments on applications by non-Forest applicants. The Directive has no review period 

and no standard of review. 

The MOU says the Forest will receive a courtesy notice for time 

limited permits. The Directive does not mention time limited 

permits. 

And finally, the MOU says nothing about that hydrologic connection or any review thereof for permit applications. 

Mrs. LUMMIS. With all the different ways the EPA can find water 

to be jurisdictional under the proposed rule, can you think of a 

water body that would not be under the Federal proposed rule? 

Mr. TYRRELL. Off the top of my head, Representative Lummis, I 

cannot. 

Mrs. LUMMIS. What about the exemptions? Do they help? 

66 

Mr. TYRRELL. The exemptions, I think, and we have talked about 

this, are more confusing than they were under previous guidance. 

We have gone from maybe 25 exemptions to an interpretive rule 

of over 100, and I think we still find the analysis on the ground 

will be case by case. 

Mrs. LUMMIS. Thank you. 

Mr. Chairman, I may have to leave because oddly, we are having 

a simultaneous hearing in the Science, Space and Technology 

Committee on the use of secret science. I am trying to get a handle 

on the use of secret science by the Federal Government. That 

seems to be a pattern that we are seeing now with regard to 

Federal agencies. 

So the cross-pollination of what is happening in science right now 

and in this committee is a serious concern and is a commonly held 

problem. 

Thank you for holding this hearing, Mr. Chairman. I yield back. 

Mr. MCCLINTOCK. Thank you. 

We have just been joined by Mr. Labrador. If you would like a 

few minutes, we are going to go to a second round or you can be 

recognized now or both. 

Mr. LABRADOR. I will just ask a couple of questions. Thank you, 

Mr. Chairman. 

Mr. Martin, you state in your written testimony that the 

National Water Resources Association and other water users are 

currently reviewing no less than seven Agency rules currently out 

for comment that have the potential to seriously impact water 

users. Many of these rules are so complex it is almost impossible 

to understand and review each rule because of their heavy volume. 

In your experience, are Agencies interested in an open and transparent process that includes input from the water users? 

Mr. MARTIN. Well, as stated earlier, the Forest Service groundwater rule was done in a vacuum. It was not done with any sort 

of input to our knowledge, and we are some of the biggest water 

users and rely on water within the Forest Service. 

It is difficult. These rules are hundreds of pages long, and to get 

through them in the short period of time is a very difficult process. 

Mr. LABRADOR. So the EPA and the U.S. Army Corps of Engineers claim the proposed rule clarifying the ‘‘Waters of the United 

States’’ under the Clean Water Act will not expand Federal jurisdiction. Can you give some examples and possibilities of how that 

proposed rule will, indeed, expand the EPA and Corps authority 

over millions of acres? 

Mr. MARTIN. I believe even the EPA and Corps have determined 

that there will be an expansion of jurisdiction. The question is just 

how much, and for the people I represent our biggest concerns are 

ditches, canals, artificial conveyances that on the surface appear to 

be excluded, but if you look behind the terms in the rule itself, it 

looks like it may be back-included. 

Mr. LABRADOR. OK. The EPA and Corps released the proposed 

rule in an effort to clarify protection under the Clean Water Act for 

streams and wetlands. However, the proposed rule has raised numerous questions about definitions in the rule and how they impact 

the irrigators, water companies, and other water users. 

67 

What are some of the areas in the rule that lack clear definitions 

and require further clarification? 

And I would like all of you to answer that question as well, but 

we start with you, Mr. Tyrrell. 

Mr. MARTIN. I will start right off and just right off the surface 

it is ditches and artificial conveyances and what is in uplands. 

Those are two of the biggest issues for my clients. 

Mr. LABRADOR. OK. 

Mr. TYRRELL. I would agree with those. I think you have the tributary definition that may be expansive, the upland question, and 

the shallow subsurface water, which in our lexicon would be 

groundwater. 

Mr. LEMLEY. Well, of course, I am not the water expert, but I’m 

sorry. Would you repeat the question please? 

Mr. LABRADOR. Yes, absolutely. So what are some of the areas 

in the rule that lack clear definitions and require further clarification? 

Mr. LEMLEY. Well, I think we are hearing that from the other 

witnesses today, and I think that this is a comment period at 

which time they can ask EPA for that clarification. 

Mr. LABRADOR. OK. 

Mr. PARKER. And from a farming and ranching standpoint, you 

in Idaho understand this very well. We do a lot of diversion of 

streams and irrigation and do flood irrigation across farms and 

then return flow because somebody has a downstream right to that 

water. 

I met with Region 8 EPA 2 weeks ago, and I asked about the exemption on return flows, and if that water runs across the farm, 

is delivered into an irrigation ditch and then returned to the 

stream—the Region 8 EPA expressed an interest in that now becoming a point source of pollution, and that changes the whole dynamic, Representative. 

Mr. LABRADOR. Thank you. 

Mr. Clark, what are your thoughts? 

Mr. CLARK. Well, I think it is easiest to point to and we have 

mentioned the upland definition. I think my biggest concern is even 

if you can clarify a definition is getting a consistent application of 

those tasks with enforcing what may appear to be clear, but often 

is not consistent. 

Mr. LABRADOR. OK. Thank you, Mr. Chairman. I yield back my 

time. 

Mr. MCCLINTOCK. Thank you. 

We are going to go to a quick second round and mainly because 

I feel the need to correct the record on a number of items. My colleague from California, Mr. Huffman, charges that the House itself 

overruled state water rights laws in the Nunes legislation of the 

last Congress and most recently in the Valadao legislation. 

I have had to correct him before on this. I feel compelled to correct him again. That legislation specifically reinforced state water 

rights law as it applied to joint Federal and state operation of the 

Central Valley Project. It required the State of California to obey 

its own water rights laws. They had authority that clearly exists 

under the contracts clause of Article 1 of the Constitution, the 

68 

takings clause of the Fifth Amendment and the privileges and immunities clause of the 14th Amendment. 

The Northern California Water Association, speaking as an umbrella group for all of the water districts in northern California 

wrote in reference to this provision, ‘‘the bill if enacted would provide an unprecedented Federal statutory express recognition of and 

commitment to California State water rights priority system and 

area of origin protections.’’ 

That is exactly the opposite of what these EPA and U.S. Forest 

Service regulations would do. 

I also want to make it clear that the Bureau of Reclamation was 

invited to this hearing to testify on how it would implement the 

EPA’s rule, and the U.S. Forest Service was invited to testify to 

discuss its proposed rule. Both declined the committee’s invitation. 

Finally, Mr. Lemley, you have given testimony involving the entire brewing industry. Are you testifying on behalf of any association of brewers or other trade association, or are you just here 

representing your own company? 

Mr. LEMLEY. That is correct, Mr. Chairman. I was simply citing 

the statistics from the Brewers—— 

Mr. MCCLINTOCK. So you are only representing your own company, not the brewing industry or any trade associations? 

Mr. LEMLEY. I am here on behalf of New Belgium Brewing 

Company, yes, sir. 

Mr. MCCLINTOCK. OK. Mr. Parker, Mr. Huffman alleges that 

these uncertainties that many of you have testified to are simply 

speculative, and they are denied by the administration. Are you 

satisfied by these assurances? 

Mr. PARKER. I do not think they are speculative at all when you 

think of the groups that are out there looking for opportunities to 

establish, sue and settle opportunities or to attack farmers and 

ranchers for various practices. 

Mr. MCCLINTOCK. So it is not only the bureaucrats that you have 

to worry about giving often wildly different interpretations. You 

also have to worry about being sued by every third party interest 

group? 

Mr. PARKER. That is exactly what it opens up, and we have 

Western Watershed, one of those wonderful groups out of Idaho 

that is down in Utah suing and settling and suing and harming our 

industry down there, grazers or whatever, and, yes, it opens the 

door much wider, Mr. Chairman. 

Mr. MCCLINTOCK. And, by the way, these rules would be interpreted by the individual managers in the field, not by whoever was 

testifying to the T&I Committee. 

Mr. PARKER. In fact, the Forest Service directive says that it is 

the line employees that make those decisions. 

Mr. MCCLINTOCK. Mr. Martin, Mr. Tyrrell, are either of you, Mr. 

Clark; are any of you satisfied with these assurances? 

Mr. MARTIN. No, Mr. Chairman. 

Mr. CLARK. No, sir. 

Mr. MCCLINTOCK. Mr. Parker, I mentioned earlier in my questioning of Mr. Martin the circumstances that exist throughout the 

Sierra, you know, many, many properties that have ditches runVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
69 

ning through them that run into gullies, that run into streams, 

that run either into a navigable river or onto Forest Service land. 

Would these properties come under the jurisdiction of the EPA 

and the U.S. Forest Service if they attempted to do anything affecting the ditch, for example, grading a driveway that passed over 

that ditch? 

Mr. PARKER. I believe so, and when you look at a state like Utah 

and I think Idaho is in a similar circumstance, we have in excess 

of 70 percent of the water that we rely on annually that is deposited in snow or rain on the Forest system lands, and it is delivered 

to communities, has been for 150 years, and I think this explicitly 

goes into that area. 

Mr. MCCLINTOCK. So right now that individual just has to get a 

grading permit from the county. Under this law they would then 

have to go through the EPA and presumably the U.S. Forest 

Service in order to get permission to make a simple modification 

on their property? 

Mr. PARKER. I think that is the case. In Wyoming, there was a 

pond built near where I ranched as a young boy up in the Bridger 

Valley that they went through all of the state permitting that was 

necessary, built the pond, and now they are under some kind of duress from the EPA for building that and affecting a wetland. 

Mr. MCCLINTOCK. OK. Thank you. 

Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you. 

Mr. Lemley, you were asked a question that you were not finished giving an answer. Would you like to elaborate how the proposed rule helps to clarify the uncertainty that resulted from the 

Supreme Court’s decision? 

Mr. LEMLEY. Yes. Thank you. 

I mean, I believe that this is the way that the government operates, is that a regulatory agency looks to do its very best for the 

people of the country, and whether that is something new or in this 

case something that seems to restore protections that were previously there, that is the agency’s rule. 

And so I believe that this hearing is good, and that the comment 

period will continue to be good as we all express our concerns, 

those who have them, to the EPA for how the rule will be carried 

out, but I do not believe that the EPA is challenging the Supreme 

Court. 

Mrs. NAPOLITANO. Thank you. 

Mr. Tyrrell, you are aware that under a 2008 Bush guidance 

shallow subsurface connections between water bodies would be sufficient to demonstrate Clean Water Act jurisdiction. Yet when 

asked about the groundwater subsurface connection, EPA Deputy 

Director Preshevski, stated 2 weeks ago that ‘‘excluded from the 

proposed rule is groundwater, including groundwater drained 

through subsurface drainage systems.’’ 

Would you advocate that any subsurface connection be eliminated under any circumstances? 

Mr. TYRRELL. Mr. Chairman, Representative Napolitano, I just 

want to understand, I guess, what the groundwater exemption 

means. We know that there is a groundwater exemption. I do not 

know, because the Science Advisory Report is still not finalized and 

70 

the draft rule is out, what the shallow groundwater connection 

means from a regulatory standpoint. 

If you would like, I can get additional depth to that answer from 

our DEQ when I get home. 

Mrs. NAPOLITANO. If you would provide it to the subcommittee 

we would be very grateful, sir. 

Mr. TYRRELL. Thank you. 

Mrs. NAPOLITANO. And then to all of the panel, do you think the 

status quo is acceptable? The status quo, would the status quo be 

acceptable, in other words, no changes? 

Mr. PARKER. From an agricultural standpoint and a federalismstate’s rights standpoint, leave this up to the states. The Forest 

Service and other land management agencies need to allow the 

states to step out and do the jobs that they have under the state 

regulations to manage these waters, to protect the waters, to protect recharge zones. 

The state already has that in place. The Federal Agencies need 

to allow them to do that on the public lands. 

Mrs. NAPOLITANO. Anybody else? 

Mr. TYRRELL. I believe that the status quo is not acceptable in 

this case because I do think we need additional clarity in things 

such as ‘‘Waters of the U.S.,’’ but I do not think the instrument in 

front of us provides that clarity. 

Mr. LEMLEY. Obviously I believe the status quo is not adequate, 

and that headwaters, ephemeral streams and wetlands require 

these additional protections by the EPA to make sure that we all 

have clean water to do farming, to do ranching, and to run our 

businesses. 

Mr. CLARK. And maybe last, it might be naive. I know for where 

we are, through trial and error we work well with the Corps. We 

work well with the other Agencies in applying the Clean Water Act 

as it is today. I see that the existing is sufficient. 

Mr. MARTIN. It would be best if we could have a bright line test 

that would provide clarity to everybody who is on the ground. 

Unfortunately, I do not think this rule provides it. 

Mrs. NAPOLITANO. Well, I am hearing from most of you that you 

need more clarity. 

Are you participating? Are any of you participating in the rulemaking process and will you be submitting the documents recommending detailed improvements to the definition of ‘‘Waters of the 

United States’’? 

Mr. MARTIN. Yes. Natural Water Resources Association will be 

submitting comments. 

Mr. TYRRELL. The State of Wyoming will comment. 

Mr. PARKER. The American Farm Bureau will be and has been. 

Mr. CLARK. Both individually and through our national organization, yes, ma’am. 

Mrs. NAPOLITANO. Thank you, gentlemen. 

Sir, Mr. Lemley? 

Thank you very much. 

My concern, and I do not have any farm community at all, but 

I am very concerned about the contamination of water for the 

drinking water for farm use, for industrial use, for all the uses. So 

to me the clean waters needs to apply to everybody, and being able 

71 

1www.fs.fed.us/pnw/pubs/pnw_gtr812.pdf. 2 79 Fed. Reg. 25815. 

to ensure that our general public, the owners of the water which 

are the people of the United States, not necessarily all the states 

but the people that reside within those states, are affected by our 

non-activity or by ignoring some of the contamination that has 

been polluting some of our streams and waters. 

And I look forward to working with you. Thank you very much, 

Mr. Chair. 

Mr. MCCLINTOCK. Thank you. 

I would like to thank our witnesses for their valuable testimony. 

Members of the subcommittee may have additional questions for 

witnesses, and we would ask that you respond to those in writing. 

The hearing record will be open for 10 business days to receive 

those responses. 

And if there is no further business, without objection, the subcommittee stands adjourned. 

[Whereupon, at 12:01 p.m., the subcommittee was adjourned.] 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

PREPARED STATEMENT OF U.S. DEPARTMENT OF AGRICULTURE

Chairman McClintock, Ranking Member Napolitano, and members of the subcommittee, thank you for the opportunity to provide perspective on the role of the 

U.S. Department of Agriculture (USDA) in the stewardship of water resources on 

the National Forest System (NFS). The Department recognizes the importance of 

water in the NFS for resource stewardship, domestic use and public recreation. 

All of the efforts of the USDA Forest Service (Forest Service) regarding the management of water resources are conducted to ensure that abundant clean water is 

available for the public’s use and enjoyment. Whether it is to create snow for downhill skiing, provide for world class fishing experiences, sustain wildlife and domestic 

animals, or to maintain community water supplies, everything is done for the 

public’s interest. 

The Organic Administration Act (of June 4, 1897 as amended) and the Multiple 

Use Sustained Yield Act, which designated and defined the purposes of the National 

Forests recognize water as one of the primary purposes for national forest designation. Today, water from national forests contributes to the economic and ecological 

vitality of communities across the Nation and plays a critical role in supplying 

Americans with clean drinking water. National forests alone provide 18 percent of 

the Nation’s water, and over half the water in the West.1 Several current initiatives 

highlight our role in protecting and enhancing water resources on behalf of the public and communities we serve, including the first national Watershed Condition 

Framework, publishing a new National Land Management Planning Rule that emphasizes water stewardship, implementing a National Climate Change Roadmap 

and Scorecard and investing in national assessments like the Forests to Faucets 

project. 

The Forest Service recently published for public comment, a proposed directive to 

ensure that the Forest Service’s decisions and activities undertaken within its existing authorities on NFS lands, evaluate and address groundwater resources. Groundwater is considered all water below the ground surface and is a key component of 

the hydrologic cycle—the continuous movement of water on, above, and below the 

surface of the Earth. Serving as a reservoir, groundwater supplies cold, clean water 

to springs, streams, and wetlands, as well as water for human uses. NFS lands provide sources of drinking water for people in 42 states and the Commonwealth of 

Puerto Rico,2 there is a clear need for the Forest Service—in cooperation with the 

states—to take an active role in analyzing, evaluating, and monitoring groundwater 

resources in the National Forest System. 

The directive would set policy for Forest Service decisions and activities that involve or potentially impact groundwater resources on NFS lands, and would improve 

the Forest Service’s ability to analyze and monitor potential uses of NFS land that 

72 

could affect groundwater resources. The directive will also create a cohesive framework to respond to groundwater development proposals, and will provide enhanced 

certainty and predictability to our state partners and project proponents. 

By both executive action and legislation NFS lands were set aside or acquired in 

part to protect and conserve water resources. The Forest Service, along with most 

states, considers surface water and groundwater to be connected and interdependent 

resources. The proposed directive would establish policy for managing surface uses 

with the understanding that surface water and groundwater are interconnected. The 

Forest Service recognizes the states’ roles in managing water resources and administering water rights within their borders. Nothing in the proposed directive would 

affect states’ role in the management of water rights. 

The Forest Service is seeing increased interest and demands from the public to 

address access to and protection of groundwater as part of the decisions and activities the agency performs. This has been particularly true with respect to oil and gas 

and minerals development. Recent examples include lawsuits in the states of Idaho 

and Oregon claiming that the Forest Service conducted inadequate analysis of the 

potential impacts to groundwater from such activities. 

Public demands with respect to groundwater show there is a clear need to establish national policy to demonstrate to the public how the Forest Service will address 

groundwater as part of its land management duties, specifically that the Agency 

analyzes potential effects on groundwater from proposed activities, and will institute 

protective measures within the rights of a proponent. The Forest Service has an obligation to analyze proposed development and protect resources, including groundwater. 

The proposed directive would establish goals and clarify responsibilities for 

groundwater resource management at each level of the Forest Service. It would also 

provide transparent and consistent direction for evaluating proposed Forest Service 

activities and special uses of groundwater resources on NFS lands and for measuring major groundwater withdrawals. 

The Forest Service expects that implementing the proposed directive would raise 

the level of awareness of the importance of groundwater resources for NFS lands. 

This would assist with the development of an inventory of the groundwaterdependent ecosystems on NFS lands. 

Through this proposed directive, the Forest Service could more readily respond to 

changing conditions (such as drought, climate change, land use changes, needs for 

additional water supplies) in an informed manner, while sustaining the health and 

productivity of NFS lands and meeting new demands in a responsible way. The proposed policy was published in the Federal Register for public notice and comment 

on May 6, 2014 with a 90-day public comment period and a 120-day tribal consultation period. 

Just this week, the Forest Service also published a proposal that balances the interests of the public, the ski areas and our natural resources by ensuring that the 

necessary water is provided for winter recreation through our special-use permitting 

process. The Forest Service’s interest on behalf of the public is to protect the availability of water dedicated to ski area operations on National Forest System lands. 

Ski resorts build chair lifts and other related facilities and modify the landscape to 

accommodate ski runs, and are often located on lands managed by the agency. 

These capital improvements are approved based on a determination that sufficient 

water is available to operate them. Therefore, it is essential that sufficient water 

remain committed to the activities authorized under a ski area permit. 

Ski areas, which cover approximately 180,000 acres of national forest system 

lands, average 23 million visits annually. Those visits contribute $3 billion every 

winter in direct spending to local economies and create approximately 80,000 full, 

part-time and seasonal jobs in rural communities. 

The draft proposal addresses water provided for ski areas on NFS lands through 

the permitting process. The proposal will help ensure public winter recreation opportunities remain available in the long term on Federal lands. 

The Forest Service values the input of states, tribes and all stakeholders and 

looks forward to receiving input on both of these important proposals that are currently out for public comment. This concludes our statement for the record. 

73 

1http://www2.epa.gov/sites/production/files/2014-04/documents/fr-2014-07142.pdf. 

PREPARED STATEMENT OF BUREAU OF RECLAMATION, U.S. DEPARTMENT OF THE

INTERIOR

The Bureau of Reclamation (Reclamation) submits the following statement in response to the subcommittee’s hearing titled ‘‘New Federal Schemes to Soak Up 

Water Authority: Impacts on States, Water Users, Recreation, and Jobs.’’ We recognize the subcommittee’s interest in assuring that Federal regulations do not adversely impact our environment and economy, and we welcome the opportunity to 

help foster a clear understanding of the recently proposed rule under the Clean 

Water Act (Act) and its potential impacts on Bureau of Reclamation activities. 

On April 21, 2014, the Federal Register published the proposed rule from the 

Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) 1 that 

is the subject of today’s hearing. Titled the ‘‘Definition of ‘Waters of the United 

States’ Under the Clean Water Act,’’ the proposed rule responds to widespread and 

longstanding uncertainty about the scope of waters regulated under the Act. As stated in the materials accompanying the proposed rule’s release, Members of Congress, 

state and local officials, industry, agriculture, environmental groups, and the public 

have asked for nearly a decade that a rulemaking occur to provide clarity on the 

scope of Federal jurisdiction under the Act. 

While we will leave it to EPA and the Corps to discuss the details of the proposed 

rule, it is our understanding that the proposed rule is not designed to expand the 

Act’s applicability beyond existing regulation; that it is not designed to cover 

groundwater; and that the rule does not expand the Act’s reach to cover additional 

irrigation ditches or alter the existing water transfers exclusion, which are obviously 

of special relevance for Reclamation. For the purposes of Reclamation’s water and 

power mission areas that are of interest to this subcommittee, Reclamation shares 

the interest of our stakeholders in preserving our shared ability to operate and 

maintain facilities and deliver water and power. To that end, we are pleased that 

EPA and the Corps, for the first time, have included a proposed exclusion in the 

rule for ditches excavated wholly in uplands and draining only uplands, with less 

than perennial flow, including those that may carry groundwater. The significance 

of this detail is that ditches excavated for drainage purposes in uplands on agricultural lands are unlikely to serve their intended function unless they carry flow at 

least intermittently, so it is important that ditches with intermittent flow be eligible 

for the proposed exemption. 

We are encouraged that the EPA and Corps are working with state and tribal 

partners to assure these voices are effectively represented during this rulemaking 

process. We appreciate EPA and the Corps’ efforts to improve clarity and preserve 

existing Clean Water Act exemptions and exclusions for agriculture. We also appreciate that the rule does not change, in any way, existing Clean Water Act exemptions from permitting for discharges of dredged and/or fill material in waters of the 

United States associated with agriculture, ranching and forestry activities, including 

exemptions for normal farming, silviculture, and ranching practices; upland soil and 

water conservation practices; agricultural stormwater discharges; return flows from 

irrigated agriculture; construction and maintenance of farm or stock ponds or irrigation ditches; maintenance of drainage ditches; and construction or maintenance of 

farm, forest, and temporary mining roads, where constructed and maintained in accordance with best management practices. 

As the members of this subcommittee know, EPA and the Corps have announced 

plans to accept public comment on the proposed rule through October 20 of this 

year. The Clean Water Act is over four decades old, with several instances of litigation over Congress’s true intentions in passing the law, and we recognize the value 

in updated regulations to guide its implementation. Reclamation shares the interest 

of our stakeholders in preserving our shared ability to operate and maintain facilities and deliver water and power. As with the proposed rule, Reclamation will continue to participate in the interagency process in support of our collective interests, 

as the services work to finalize the rule. 

Thank you for the opportunity to participate in today’s hearing. 

74 

1 ‘‘The Economic Importance of Western Irrigated Agriculture’’ Water Resources—White Paper, 

prepared by Pacific Northwest Project for the Family Farm Alliance and the Irrigation 

Association, August 2013. 2 Id. 

PREPARED STATEMENT OF DAN KEPPEN, EXECUTIVE DIRECTOR, FAMILY FARM

ALLIANCE, KLAMATH FALLS, OREGON

Thank you for this opportunity for the Family Farm Alliance (Alliance) to submit 

comments to your subcommittee on this important matter. The Alliance is a grassroots organization of family farmers, ranchers, irrigation districts and allied industries in 16 western states. The Alliance is focused on one mission: To ensure the 

availability of reliable, affordable irrigation water supplies to western farmers and 

ranchers. The Alliance has long advocated that solutions to conflicts over the allocation and use of water resources must begin with recognition of the traditional deference to state water allocation systems. Federal agencies must recognize and 

respect state-based water rights and develop their management decisions according 

to state law and abide by state decrees defining both Federal and non-Federal 

rights. Federal agencies need to work within the framework of existing prior appropriation systems instead of attempting to fashion solutions which circumvent current water rights allocation and administration schemes. 

Our comments summarize concerns the Alliance has with proposals put forward 

by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers 

(‘‘Waters of the U.S.’’ rule) and the U.S. Forest Service (groundwater management 

directive). Each of these issues is dealt with at length, below. 

‘‘WATERS OF THE U.S.’’ RULE

The Alliance membership includes many irrigation districts, water companies, and 

farmers and ranchers in 16 western states, with many served by Bureau of 

Reclamation (Reclamation) owned facilities. The Alliance in 2013 commissioned a 

study of the economic benefits to the Nation from western irrigated agriculture, calculating that the total direct and indirect production value for the 17 states comprising the western U.S. region was around $156 billion annually, of which $117 billion was tied to crops produced on about 42 million irrigated acres in the western 

United States.1 Without irrigation, these lands would not yield the billions of dollars 

in economic benefits for the region and the Nation, let alone the vast amounts of 

quality food and fiber enjoyed every single day by the American public. And, since 

World War II, the percentage contribution of (disposable) household income to food 

costs has dropped from 25 percent to around 7 percent, allowing for the continued 

growth of our consumer spending economy.2 Thus, the importance of western irrigated agriculture to the Nation is well documented. 

On April 21, 2014 the Environmental Protection Agency (EPA) and the U.S. Army 

Corps of Engineers (Corps) announced a proposed rulemaking under the Federal 

Clean Water Act (CWA) redefining the agencies’ jurisdiction over water bodies. The 

proposed rule is a complicated set of regulatory definitions, including new ambiguously defined terms, that seeks to ‘‘clarify’’ the authority of these two agencies to 

regulate ‘‘navigable waters’’ which are defined in the CWA as the ‘‘Waters of the 

U.S.’’ (WOTUS). 

In the Alliance’ view, the proposal, if adopted, would not clarify the agencies’ jurisdictional determinations over WOTUS. In fact, it would significantly expand the 

scope of waters protected under the Federal CWA beyond those waters currently 

regulated by asserting jurisdiction over waters, including many ditches, conveyances, isolated waters and other waters, resulting in many negative economic and 

societal impacts to irrigated agriculture in the West. 

The proposed rule asserts that most waters categorically have a ‘‘significant 

nexus’’ to traditional navigable waters currently regulated under the CWA, and yet 

allows the EPA or the Corps to establish a ‘‘significant nexus’’ on a case-by-case 

basis over other waters. The criteria for establishing a significant nexus is ambiguous and could be easily applied to most waters (i.e. ‘‘more than speculative or insubstantial effect . . .’’), and would increase Federal control over most waters and 

any land activities that might impact these waters, subjecting these lands and waters to more complicated and layered reviews and potential third party citizen lawsuits. 

The proposed rule would change all sections of the CWA: Sections 303, 304, 305 

(state Water Quality standards), 311 (oil spill prevention), 401 (state Water Quality 

certification) 402 (effluent/stormwater discharge permits) and 404 (dredge and fill 

permits). At a minimum, the proposed rule will require substantial state resources 

to administer, including issuance of all the additional permits, newly developed/ 

75 

revised water quality standards, and total maximum daily loads (TMDLs) required 

by the expanded jurisdiction. Third party (citizen) actions will also almost certainly 

precipitate litigation, leading to these required Federal and state administrative actions and further delays in project implementation. 

Under the proposal, all tributaries, newly defined as including a bed, banks and 

an ordinary high water mark, and including any waters such as wetlands, lakes, 

and ponds that contribute flow, either directly or indirectly through another water 

body, to downstream traditional navigable waters or interstate waters would be jurisdictional. All waters adjacent to such tributaries would now be jurisdictional, 

broadly defined as waters within floodplains and riparian areas of otherwise jurisdictional waters, and including subsurface hydrologic connection or confined surface 

hydrologic connection to a jurisdictional water. And all man-made conveyances, including ditches, would be considered jurisdictional tributaries if they meet the new 

definition, regardless of perennial, intermittent, or ephemeral flow. 

Under the proposed rule, many private land and water conservation projects designed to benefit watersheds, waterfowl and riparian habitats may be subject to 

CWA permitting, acting as a disincentive to such important projects. While the EPA 

and the Corps emphatically deny projects like erosion control or soil stabilization 

work are exempt from permitting under the proposed rule, this would not stop third 

parties from raising the jurisdictional question in litigation, creating the uncertainty 

and instability resource users fear the most. There is nothing ‘‘clear’’ about this rule 

proposed to ‘‘clarify’’ CWA jurisdiction over ‘‘Waters of the U.S.’’, only the uncertainty created by using ambiguous definitions and convoluted analyses to define 

what is jurisdiction and what is not. In its haste to get the proposed rule out for 

comment, the EPA has out run the analysis of its own underlying scientific documentation, the draft EPA Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence, which is still under agency and Science Advisory Board (SAB) review. 

The proposed rule has huge implications for irrigated agriculture in the West. 

Under the proposal, third parties could assert that features such as irrigation and 

drainage ditches, stormwater ditches, and water storage or treatment ponds and 

reservoirs would now become jurisdictional waters, and place the burden of proof 

on irrigation water purveyors, farmers and ranchers to prove they are exempt from 

CWA jurisdiction. Irrigation water suppliers and private and public landowners will 

experience increased costs and delays associated with the additional permitting requirements, restrictions on land use options, and the continued uncertainty on the 

scope of CWA jurisdiction under the proposal. 

The costs associated with permitting under the CWA are astronomical and time 

consuming, with permitting taking hundreds of days to complete (on average) and 

with permitting costs ranging from the tens of thousands to the hundreds of thousands of dollars. These costs cannot be avoided, because the Clean Water Act 

imposes criminal liability, as well as escalating civil fines, on a broad range of everyday activities. Expanding the scope of the CWA to additional and uncertain jurisdictional water bodies will only increase those costs and delays as state and Federal 

regulators will simply not have the resources to keep up with these expanded permit requirements. 

The categorical exemptions from jurisdiction under the CWA provided in the proposed rule, while laudable, lack the clarity and specificity needed to provide the certainty irrigated agriculture needs to operate on a daily basis. The Alliance believes 

the rule needs to provide such clarity that the current exemptions for irrigation 

ditches, drains and associated facilities will continue to be retained. This important 

infrastructure is the lifeblood of irrigated agriculture in the West, and the existing 

distribution system of ditches, canals, drains and diversions work to provide water 

to thirsty farms and ranches in the most efficient manner possible. If these facilities 

are not operated and maintained in an efficient and timely manner during critically 

dry periods during the growing season, the economic and societal result will be devastating to farmers, rural communities and, ultimately, the Nation. 

Irrigation ditches are constructed conveyances regularly maintained for the purpose of delivering irrigation water or draining agricultural lands and are distinct 

from natural waters. These are artificial facilities created for the purpose of irrigation and drainage of irrigated lands from the application of water in the irrigation 

process. The irrigation ditches and drains carry flows as needed to deliver irrigation 

water or to drain the agricultural waters from irrigated lands. These man-made 

canals and ditches would otherwise be dry land, except for the application of irrigation water to produce crops. Where irrigation drains have a more permanent flow, 

that flow is due to the timing of irrigation water applied to crops and seeping down 

through the soil until it reaches subsurface perched groundwater or a nonpermeable barrier in the soil profile, where these drains can intercept this irrigation 

76 

return flow to carry it away and prevent water buildup in the plant root zone in 

the field. Permanent flows in drains also can result from these irrigation drains actually picking up flowing groundwater during certain periods of the year, which is 

exempt from CWA jurisdiction. 

Return flows from agriculture are specifically excluded from CWA regulation in 

the Act, and permits are not required for constructing and maintaining irrigation 

ditches excavated in dry land and the maintenance of irrigation drains draining 

those irrigated lands. The Alliance believes that the agencies should make clear in 

their proposed rulemaking that irrigation canals, ditches and drains are not navigable waters, are not ‘‘Waters of the U.S.,’’ and are not ‘‘tributary’’ to WOTUS, and 

thus are not jurisdictional under the CWA. This was Congress’ intent when it 

passed the CWA, and requires that the proposed rule should include an express exemption for irrigation canals, ditches and drains, from the definition of navigable 

waters, waters of the United States, and tributary waters. 

Irrigation districts, canal companies and other water providers do routine maintenance work in their conveyance facilities every year. In addition, they are required 

to make more extensive improvements in the form of rehabilitation or replacement 

of some of the works from time to time. Water conservation activities such as lining 

or piping canals and drains are also commonplace activities, along with relocating 

portions of these water conveyance facilities for improved efficiencies. Without the 

ability to conduct these necessary activities, agricultural water delivery would come 

to a screeching halt. 

The Corps of Engineers has, in certain cases in the past, asserted that these activities are being conducted in ‘‘Waters of the United States’’ and therefore require 

a Sec. 404 permit or reliance on one of these existing exemptions contained in the 

Act. As a result, we worked with the Corps, EPA and the Bureau of Reclamation 

to obtain a Regulatory Guidance Letter (RGL) helping to clarify the scope and 

breadth of the exemptions contained in the Act as they apply to these activities. We 

are certainly appreciative of these efforts by the Federal agencies, which culminated 

with the release of the RGL in 2007. However, the new WOTUS proposal does not 

clarify whether these canals, ditches and drains are jurisdictional under the CWA 

as WOTUS, nor is it clear if the proposal provides the same application of the exemptions proffered by the RGL. 

Our member districts and water purveyors operate and maintain literally thousands of miles of canals, ditches and drains serving millions of acres of irrigated 

crop lands. These entities perform routine maintenance work on these conveyance 

facilities constantly, and at times may improve their facilities by piping or lining 

ditches and canals to conserve water in the delivery process. If these water providers are required to obtain a CWA permit for each of these routine activities, delivering irrigation water to western farms and ranches would become much more 

expensive and time consuming, and could make it almost impossible to deliver water 

in time to irrigate crops. 

The Bureau of Reclamation has a vested interest in ensuring that water is delivered efficiently and on a timely basis, as these farms and ranches are tasked with 

repaying the Federal construction debt on these Federal projects. Water conservation and management improvements have become an important part of the western 

irrigation landscape today due to the challenges of drought, increased demand, and 

environmental requirements. Making irrigation ditches and drains jurisdictional 

under the CWA would hamstring the agency from accomplishing its mission of managing, developing and protecting western water resources in the delivery of water 

to water contractors. 

Finally, the Alliance believes that the proposed rule is inconsistent with congressional intent, the language of the CWA and Supreme Court decisions. The Supreme 

Court has twice affirmed that Federal jurisdiction under the CWA is limited, rejecting, first, the agencies’ broad assertion of CWA jurisdiction based on the use of isolated waters by migratory birds and, second, the agencies’ assertion of jurisdiction 

based on ‘‘any hydrological connection’’. Yet the proposed rule would continue to define CWA jurisdiction as broadly as these previous theories rejected by the Supreme 

Court. 

The administration and Congress have a unique opportunity to instill a commonsense approach to protecting our water quality and related resources; one that 

steers clear of creating certain havoc in surface water operations throughout the 

country by clarifying that man-made ditches are not jurisdictional. Unfortunately, 

the proposed WOTUS rule is ambiguous and will lead to uncertainty and litigation. 

We urge you to consider the appropriate protections already afforded U.S. waters 

under the CWA, particularly via existing state programs. Please reject the unprecedented Federal expansion proposed in this rule, and instead find ways to streamline 

current CWA administration. 

77 

Western family farmers and ranchers urge clarity, not ambiguity and expansion 

of the Clean Water Act. 

U.S. FOREST SERVICE DIRECTIVE ON GROUNDWATER MANAGEMENT

On May 6, the U.S. Forest Service (USFS) released two separate notices and distinct sets of directives dealing with water resources. The directives, based on provisions found in the 2012 Forest Planning Rule would open the door to even more 

regulation of national forests in the name of ‘‘water quality protection.’’ Our comments will focus on the draft directive where USFS proposes to assert authority 

over groundwater—Chapter 2560 (‘‘Groundwater Resource Management’’) of Forest 

Service Manual 2500. However, we would also alert the subcommittee of the second 

USFS directive, which would put in place a set of national Best Management 

Practices (BMPs) for water quality management from non-point sources. The BMPs 

proposed by the USFS are vaguely written, giving individual forests virtually free 

rein to create their own BMPs in as strict or lax a manner as they choose. For example, those guidelines call for ‘‘special consideration’’ of areas within 150 feet of 

a stream—leaving the interpretation of ‘‘special consideration’’ wide open for litigation. Based on the experience of many Alliance members, we can expect certain conservation groups to conclude that a forest’s BMPs are too lax and sue based on their 

own interpretation of the national BMP guidelines. 

The USFS has proposed a new chapter for its Forest Service Manual on managing 

groundwater resources. As discussed above, many Alliance members have focused 

attention in recent months on the EPA/Corps rulemaking effort intended to clarify 

which ‘‘Waters of the U.S.’’ would come under jurisdiction of the CWA. Meanwhile, 

directives that are perhaps even more draconian than what EPA is contemplating 

are already being forwarded by USFS through the public review process. The new 

groundwater management and water quality BMP directives USFS has proposed 

are alarming, and would open up the door to a jurisdictional expansion that would 

most likely conflict with the laws of western states. Notably, the Groundwater Directive automatically assumes that groundwater and surface water are hydraulically 

connected, unless demonstrated otherwise using site-specific information. 

We believe the USFS cannot assume to hold the reserved water rights to all waters—both surface and groundwater—in a National Forest, and as such, does not 

have the authority to control or regulate those waters, as proposed in the directives. 

Where such reserved rights are actually held by the USFS (obtained through a 

McCarran Act state adjudication of such rights), then the proper authority to control 

or regulate those rights would be through existing state water right administration 

processes, not through the policy directives of the USFS. 

The USFS is becoming more and more aggressive in the world of western water 

resource management. In recent years, the agency has attempted to require the 

transfer of privately held water rights to the Federal Government as a permit condition on USFS lands. Additionally, USFS has leveraged western water users in an 

effort to acquire additional water supplies for the government by requiring water 

users to apply for their rights under state law in the name of the United States, 

rather than in the name of the beneficial user of those rights, despite objections 

from elected officials, business owners, private property advocates and a U.S. 

District Court ruling. Finally, our members in Colorado are still battling with the 

USFS and the U.S. Bureau of Land Management on the agencies’ Joint Land 

Management Plan, which includes more restrictive ‘‘standards’’ to assess stream 

conditions in a permitting process that will likely lead to by-pass flows. Any by-pass 

flows that could be imposed in a special use permit process should be considered 

a ‘‘takings’’ and could have major impacts on existing and future water rights. 

Colorado water districts, the Colorado Department of Natural Resources, and the 

Colorado Water Congress appealed the Record of Decision on the Forest Plan, but 

recently found out the appeal had been denied by the USFS. All of these entities 

have requested a discretionary review of these matters. If the review is not successful, litigation is a possibility on the by-pass issue. 

Thankfully, with the leadership from your subcommittee, the House has passed 

the ‘‘Water Rights Protection Act’’, which would put a halt to the conditioning of 

permits and leases on the transfer, relinquishment, or other impairment of any 

water right to the United States by the Secretaries of the Interior and Agriculture. 

The latest release of the new USFS directive, however, is seen by some as a way 

skirting the District Court decision that prevents USFS from forcing water-rights 

holders to hand over part of their water rights in exchange special use permits. Why 

is the Groundwater Directive troubling to western water users? We have worked 

with our membership and have identified the following concerns. 

78 

The proposed directive goes beyond the authority of USFS and could encroach into states’ rights to manage groundwater. A significant portion of the 

USFS directive is dedicated to listing numerous Federal statutes that direct or authorize water or watershed management on NFS lands. The directive states that 

‘‘several of these statutes’’ grant authority or provide direction to the Forest Service 

for the management of groundwater resources. Actually, very few of them specifically grant USFS groundwater management authority, and those that do are passive in nature. Forest Service Directive FSM 2880 provides direction on 

inventorying and monitoring groundwater resources. USDA Departmental 

Regulation 9500–8 (DR 9500–8) provides for protection of water users and the natural environment from exposure to harmful substances in groundwater and 

enhancement of groundwater quality where appropriate through prudent use and 

careful management of potential contaminants and promotion of programs and practices that prevent contamination. In fact, DR 9500–8 specifically notes that USDA 

will ‘‘advocate and foster programs, activities and practices that can prevent the 

harmful contamination of ground water from agricultural, silvicultural, and other 

rural sources to minimize, or make unnecessary, regulatory restrictions on the use 

of chemicals essential to agricultural production’’ (emphasis added). 

The new directive is much more aggressive in its management approach, and 

opens the potential for conflict with state and local groundwater management efforts. Our experience shows that the best decisions on water issues are made at the 

local level. The Federal Government has repeatedly recognized this fact. In 1952, 

Congress passed the McCarran Amendment. This law specifically waives the sovereign immunity of the United States in matters that pertain to state water right 

adjudications. 

One of our primary concerns about the USFS Groundwater Directive is how this 

new directive may affect claims for reserved water rights by the USFS. For example, 

there are a number of cases that were filed in the mid-1970s for reserved water 

rights in Water Division 7 (which is basically all of southwest Colorado). These 

cases have never been resolved, and are still pending in water court. Our members 

in Colorado have concerns that the USFS could try to amend these pending applications to include references to groundwater, based on the new directive. We hope the 

subcommittee can assist with having USFS explain what the impact, if any, the proposed directive on groundwater will have on pending reserved water rights claims 

in Colorado and elsewhere in the West, where reserved water rights claims by the 

USFS have not been resolved. 

One of the objectives of the new directive is to ‘‘manage groundwater underlying 

NFS lands cooperatively with States’’. The proposed policy directs USFS to manage 

groundwater quantity and quality on NFS lands ‘‘in cooperation’’ with appropriate 

state agencies and, if appropriate, EPA. Cooperation is certainly a key component 

to groundwater management, but USFS needs to demonstrate a stronger commitment to work within the framework of existing state water rights systems and defer 

to the states in these matters. Such a commitment would encourage states and 

water right holders to proactively address water allocation issues by eliminating the 

now omnipresent fear that a subsequent Federal mandate will either undermine 

local efforts to address an allocation issue or suddenly require unexpected additional 

reallocations of water which render local cooperation impossible. 

The directive expands USFS jurisdiction beyond National Forest Service 

lands. One of the policies of the USFS directive is to manage surface water and 

groundwater resources as hydraulically interconnected, and consider them interconnected in all planning and evaluation activities, unless it can be demonstrated 

otherwise using site-specific information. Another policy would focus groundwater 

resource management on those portions of the groundwater system that if depleted 

or contaminated, would have an adverse effect on surface resources or present or 

future uses of groundwater. Since surface water and groundwater are already assumed to be hydraulically connected in this directive, this essentially expands USFS 

jurisdiction to some uncertain range downstream along runoff channels and streams 

originating or flowing through NFS lands. Not only is the breadth of the jurisdictional expansion uncertain, the manner in which groundwater will be ‘‘managed’’ is 

also unclear. Groundwater management can consist of passive activities, such as 

data collection and well monitoring. It can also consist of more aggressive actions, 

including regulation or curtailment of pumping. The directive fails to adequately describe the level of groundwater management that is proposed, instead noting that 

management will occur ‘‘on an appropriate spatial scale’’. The policy directs the 

USFS to ‘‘prevent, minimize, or mitigate, to the extent practical, adverse impacts 

from Forest Service actions on groundwater resources and groundwater-dependent 

ecosystems located on NFS lands.’’ This too, is vague, as are other provisions in the 

79 

directive, and potentially could usurp the authority of the state in managing and 

regulating its surface and groundwater resources. 

The directive includes vague and uncertain terminology and provisions. The new policy requires implementation of water conservation strategies in Forest 

Service administrative and recreational uses and cites FSM 7420. This latter document relates to drinking water projects and it is unclear how it would apply to ensuring incorporation of ‘‘water conservation strategies’’ for administrative and 

recreational uses. The term ‘‘water conservation strategies’’ needs to be defined. 

The directive calls for USFS to follow applicable state and EPA SDWA regulations 

for evaluating whether a groundwater source of drinking water is under the direct 

influence of surface water. This would appear to conflict with the USFS policy in 

the directive that automatically considers groundwater and surface water to be hydraulically interconnected in all planning and evaluation activities, unless it can be 

demonstrated otherwise using site-specific information. 

The directive states that effects of proposals on groundwater resources will need 

to be considered and addressed when revising or amending applicable land management plans and evaluating project alternatives. The directive is not clear as to 

whether these actions apply only to proposed USFS activities or to proposed uses 

involving surface water or groundwater outside of USFS lands that could theoretically be viewed as ‘‘connected’’ using the new USFS policy. 

The directive is biased against human activities and discourages a flexible approach to water management contains a strong bias toward the environment and 

water demand management. The Forest Service directive proposes to address in 

planning documents the long-term protection and sustainable use of groundwater 

and groundwater-dependent resources on USFS lands. The policy directs USFS to 

appropriately protect groundwater resources on USFS lands that are critically important to surface water resources or to natural features, ecosystems, or organisms. 

No mention is made of the need to provide water for grazing, recreation, or other 

human activities on USFS lands. 

Several parts of the proposed directive demonstrate a bias against human activities and water infrastructure projects on USFS lands: 

• The proposed policy directs USFS to deny proposals to construct wells on or 

pipelines across USFS lands which can reasonably be accommodated on nonUSFS lands and which the proponent is proposing to construct on USFS 

lands because they afford a lower cost and less restrictive location than nonUSFS lands. • In lieu of accessing water from USFS lands, the directive encourages public 

water suppliers and other water users to employ new treatment technology 

to meet water supply needs when water quality in an existing water source 

has degraded or become polluted. • When issuing or reissuing an authorization or approving modification of an 

authorized use, the directive requires implementation of water conservation 

strategies to limit total water withdrawals from USFS lands ‘‘deemed appropriate by the authorized officer’’. • The directive requires that public water suppliers and other proponents and 

applicants for authorizations involving water supply facilities on USFS lands 

provide an evaluation of all other reasonable alternatives to the USFS before 

authorizing access to new water sources or increased capacity at existing 

water sources on USFS lands, unless the proposed use is entirely on USFS 

lands or the proponent or applicant is a public water supplier and the proposed water source is located in a designated municipal watershed. 

The USFS directive suggests to us that some within the agency clearly have antiinfrastructure biases and are inserting those biases into critical Federal decisionmaking processes. The Alliance has been very supportive of increased water use and 

management efficiencies, including the many voluntary water conservation projects 

currently implemented across the West. We also believe that to effectively meet future demands for water for people and the environment in the West, water conservation efforts alone will not suffice, and that water infrastructure, including new 

water storage projects, must be built in the future. 

The directive demonstrates a bias against water storage projects that could hamper future ability to address drought and climate change challenges in the West. 

Western snow-fed, irrigated agriculture will take on more importance to the Nation 

as climate change sparks more extremes in both flooding and droughts. In the West, 

we have high elevation moisture, and sophisticated storage and conveyance infrastructure, which make us more flexible and adaptive in our water management efforts. Western agricultural water users and the infrastructure that was originally 

constructed to support our communities will become even more important as climate 

80 

changes occur. An essential part of water management in the West lies in the past: 

visionary development of storage and irrigation under the auspices of the Bureau 

of Reclamation. This has allowed the bountiful production of food and fiber which 

are crucial to our national food supply. The importance of dams and water delivery 

infrastructure to western water supply certainty appears to have been forgotten as 

USFS prepared this directive. 

Interestingly—and what is surprising, coming from an agency like USFS—the directive proposes to protect local groundwater resources by encouraging the use of 

sources of water other than local groundwater, or ‘‘import surface or groundwater 

from outside the basin where laws, water quality and hydrological conditions in both 

the source and receiving areas allow’’. Is USFS actually advocating for expanded 

trans-basin diversions to avoid using local groundwater? 

The USFS directive would place unqualified personnel in positions where 

critical groundwater management decisions will be made. The directive defines ‘‘qualified groundwater personnel’’ as USFS staff or contractors with ‘‘appropriate education, training, and experience in groundwater science to satisfy project 

needs and, if applicable, licensed or registered to practice geology, hydrology, soil 

science, or engineering, as appropriate.’’ However, other provisions of the directive 

provide aquatic biologists, or ‘‘similarly trained professionals’’ with the authority to 

analyze whether groundwater withdrawals or injections would impact surface or 

groundwater quality and quantity. These professionals would also be authorized to 

develop analyses used to change or limit authorized activities and modify operations 

for those cases where monitoring shows potential impacts. These are very complicated, sophisticated duties that are likely beyond the training and experience obtained by aquatic biologists. Qualified groundwater personnel should oversee these 

activities, and those personnel should be state-licensed professional civil engineers 

or geologists. 

The Alliance has many concerns with the USFS groundwater management directive, but our biggest worry with this most recent move by the USFS to assert control 

over groundwater is that it unquestionably exceeds the agency’s statutory authority. 

Unfortunately, in recent years, similar actions by the USFS suggest a move toward 

Federal overreach, ignoring state water laws and processes, and violating private 

property rights. The USFS proposed directives on groundwater management and 

water quality Best Management Practices both need to be withdrawn, and USFS 

should go back to the drawing board and work toward developing a policy that falls 

within the limits of agency authority, pays deference to states water authorities and 

emphasizes a collaborative approach to water management that benefits human 

uses and the environment. 

CONCLUSION

One not familiar with this Nation’s regime for regulation of the environment 

would understandably conclude that there is some giant gap in the regulatory 

scheme that is allowing unchecked pollution and waste of water that are not currently within the jurisdiction of the CWA or the purview of the USFS. However, this 

is simply not the case. Even though groundwater, smaller intrastate waters and 

wetlands areas may not be within the jurisdiction of the Federal Government, they 

are within the jurisdiction of state and local governments. The implication derived 

by the perceived need by the Federal Government to further regulate all waters is 

that these state and local governments are incapable of, or somehow ignoring the 

need to effectively protect their water resources. Such arrogance by the Federal 

agencies is appalling and flies in the face of federalism in promoting state governance of these important resources. In addition, it is important to keep in mind that 

the Federal Government does have jurisdiction over discharges of solid wastes, hazardous wastes, and hazardous substances to non-jurisdictional waters through the 

Resource Conservation and Recovery Act and the Comprehensive Environmental 

Response, Compensation, and Liability Act. 

It is also worth noting that the CWA is widely recognized as an extremely successful statutory regime. All of this progress has been achieved under the current 

version of the CWA. And more than a decade’s worth of this progress has been 

achieved since the Supreme Court’s SWANCC decision in 2001, which some proponents of the proposed rulemaking allege was the beginning of the Court’s attempts to limit Federal jurisdiction. Simply put, the agencies crafting both of these 

rules have only spoken of the need for an expansion of Federal water resource management jurisdiction in the broadest, most vague terms possible, without establishing any real need. 

The results of this jurisdictional expansion will put actions and products used by 

American farmers and ranchers that are critical inputs necessary in the production 

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of food and fiber foremost in the sights of Federal regulators. American family farmers and ranchers for generations have grown food and fiber for the world, and we 

will have to muster even more innovation to meet this critical challenge, which 

grows every day. That innovation must be encouraged rather than stifled with new 

regulations and uncertainty. Unfortunately, many existing and proposed Federal 

policies on water issues,—including proposed rules discussed in this letter—make it 

more difficult for farmers to produce food and fiber in an arena where agricultural 

values are perceived as secondary to ecological and environmental priorities. Right 

now, it seems that water policies being developed at EPA, the Corps and the USFS 

are being considered separately from foreign and domestic agricultural goals. 

Thank you for this opportunity to provide comments for this important oversight 

hearing. 

PREPARED STATEMENT OF NATIONAL STONE, SAND AND GRAVEL ASSOCIATION

(NSSGA) 

On behalf of the National Stone, Sand and Gravel Association, we appreciate the 

opportunity to submit testimony to the Natural Resources Subcommittee hearing on 

‘‘New Federal Schemes to Soak Up Water Authority: Impacts on States, Water 

Users, Recreation, and Jobs’’ on the Environmental Protection Agency (EPA) and 

the U.S. Army Corps of Engineers (Corps) proposed rule defining the scope of waters 

protected under the Clean Water Act (CWA) (Docket ID No. EPA–HQ–OW–2011– 

0880). 

NSSGA is the world’s largest mining association by product volume. NSSGA 

member companies represent more than 90 percent of the crushed stone and 70 percent of the sand and gravel consumed annually in the United States, and there are 

more than 10,000 aggregates operations across the United States. 

Through its economic, social and environmental contributions, aggregates production helps to create sustainable communities and is essential to the quality of life 

Americans enjoy. Aggregates are a high-volume, low-cost product. Due to high product transportation costs, proximity to market is critical; unlike many other businesses, we cannot simply choose where we operate. We are limited to where natural 

forces have deposited the materials we mine. There are also competing land uses 

that can affect the feasibility of any project. Generally, once aggregates are transported outside a 25-mile limit, the cost of the material can increase 30 percent to 

100 percent, in addition to creating environmental and transportation concerns. 

Because so much of our material is used in public projects, any cost increases are 

ultimately borne by the taxpayer. 

Aggregates are the chief ingredient in asphalt pavement and concrete, and are 

used in nearly all residential, commercial, and industrial building construction and 

in most public works projects, including roads, highways, bridges, dams, and airports. Aggregates are used for many environmental purposes, including pervious 

pavements and other LEED building practices, the treatment of drinking water and 

sewage, erosion control on construction sites, and the treatment of air emissions 

from power plants. Aggregates operations are returned to the community as a variety of positive land uses from wetlands to lakes, wildlife habitats, recreational centers and even amusement parks and golf courses. While Americans take for granted 

this essential natural material, they are imperative for construction of our infrastructure, homes, and for positive growth in our communities. 

As the industry that provides the basic material for everything from the roads on 

which we drive to purifying the water we drink, NSSGA members are deeply concerned that the EPA’s proposed rule will stifle our industry at a time when we are 

just now recovering from the economic downturn. The aggregates industry removes 

materials from the ground, then crushes and processes them. Hazardous chemicals 

are not used or discharged during removal or processing of aggregates. When aggregates producers are finished using the stone, sand or gravel in an area, they pay 

to return the land to other productive uses, such as residential and business communities, farm land, parks, or nature preserves. 

Over the past 8 years, the aggregates industry has experienced the most severe 

recession in its history. This expansion of jurisdiction will have a severe impact on 

industry by increasing the costs and delays of the regulatory process, causing further harm to an industry that has seen production drop by 39 percent since 2006. 

While stone, sand and gravel resources may seem to be ubiquitous, construction materials must meet strict technical guidelines to make durable roads and other public 

works projects. Because many aggregate deposits were created by water, they are 

often located near water. The availability of future sources of high quality aggreVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
82 

gates is a significant problem in many areas of the country and permitting issues 

has made the problem worse. 

The aggregates industry requires large land areas to process and remove the extensive quantities of material needed for public works projects. This proposed rule 

could effectively place many areas ‘‘off limits’’ due to cost of new permits and/or the 

mitigation required to off-set losses to now regulated streams. Having a clear jurisdictional determination for each site is critical to the aggregates industry. These 

decisions impact the planning, financing, constructing and operating aggregates facilities. Because the Clean Water Act 404 ‘‘dredge and fill’’ permitting process and 

the corresponding states’ 401 Certification process is so long and costly that many 

companies attempt to avoid jurisdictional areas. 

Under the proposed revisions, many previously non-jurisdictional areas like 

floodplains, wet weather conveyances, upland headwaters, ephemeral streams or 

any riparian area could be considered jurisdictional. It will make nearly any area 

our members try to access regulated and in need of additional permits. 

Even obtaining a jurisdictional determination can be a significant undertaking. 

While jurisdictional determinations are good for 5 years, as an industry we make 

business decisions to buy or lease properties to extract aggregates for very long 

terms, 15 to 30 years is not uncommon. The companies in our industry are very concerned that past understandings of what would be jurisdictional will now be subject 

to review. A change in what is considered jurisdictional can have significant impacts 

on our material reserves, which will affect the life of our facilities and delay the 

startup of new sites. Ultimately this change will disrupt the supply of aggregates 

to our biggest customers, government agencies; thus affecting highway programs, 

airports, and municipal projects. 

EPA claims this rule change is needed because so many waters are unprotected, 

but that is not true: states and local governments have rules that effectively manage 

these resources. For example, states and many municipalities regulate any potential 

negative impacts to storm water runoff and require detailed storm water pollution 

prevention plans. These plans are required for every project; both during construction and continuously after operations begin. States and local governments are bestsuited to make land use decisions and balance economic and environmental benefits, 

which is what Congress intended. 

There is much inefficiency in the current regulatory system; however, adding 

vague terms and undefined concepts to an already complicated program is not the 

way to fix the problem. In some cases this rule could have a negative effect on the 

environment and safety. Ditches without maintenance can degrade and lead to increased erosion and sediment problems. EPA claims this rule is based on sound 

science, but the Science Advisory Board, the group of independent scientists reviewing it, are still not near completion; in fact they have raised serious questions EPA 

has not answered. 

EPA’s economic analysis of this rule does not accurately show what businesses 

will end up paying if this rule is finalized. It is not even close. One NSSGA member 

calculated that to do the additional mitigation of a stream required under this rule 

would be more than $100,000; this is just for one site in our industry. This is more 

than EPA has estimated the stream mitigation costs are for entire states in its economic analysis. For our industry, time is money. Any new requirements lead to a 

long learning curve for both the regulators and the regulated. Simply receiving a 

jurisdictional determination can take months—permits can take years; how much 

longer will it take to break ground with so many vague and undefined terms in this 

rule? The proposed rule has no clear line on what is ‘‘in’’ and what is ‘‘out,’’ making 

it very difficult for our industry and other businesses to plan new projects and make 

hiring decisions. 

If it is determined development of a site will take too long or cost too much in 

permitting or mitigation, then the aggregates industry won’t move forward. That 

means a whole host of economic activity in a community will not occur—all of this 

in the name of protecting a ditch or farm pond. 

Taken further, a significant cut in aggregates production could lead to a shortage 

of construction aggregate, raising the costs of concrete and hot mix asphalt products 

for state and Federal road building and repair, and commercial and residential construction. NSSGA estimates that material prices could escalate from 80 percent up 

to 180 percent. As material costs increase, supply becomes limited, which will further reduce growth and employment opportunities in our industry. Increases in 

costs of our materials for public works would be borne by taxpayers, and delay road 

repairs and other crucial projects. Given that infrastructure investment is essential 

to economic recovery and growth, any change in the way land use is regulated 

places additional burden on the aggregates industry that is unwarranted and would 

adversely impact aggregates supply and vitally important American jobs. 

83 

Additionally, EPA conducted no state outreach prior to releasing this proposed 

rule, and little to no outreach after the fact. States and localities will bear an enormous financial burden under this rule, as it will affect construction, recreation facilities, and even maintenance of roadside ditches. EPA should have consulted with the 

states prior to proposing the rule in order to incorporate local needs and capabilities. 

We urge that EPA withdraw this rule until a more thorough economic analysis 

has been performed, a Small Business Regulatory Flexibility Act (SBRFA) panel has 

been conducted, the states and affected communities have been consulted, and the 

Science Advisory Board has finished their analysis and allowed stakeholders to comment on their conclusions. Without a thorough outreach to affected communities— 

which EPA has not conducted—this rule will harm not only aggregates operators 

and our transportation infrastructure, but the economy as a whole. 

NSSGA appreciates this opportunity to submit a statement on the devastating effects of a broad expansion of Clean Water Act jurisdiction on the aggregates 

industry. 

PORTLAND CEMENT ASSOCIATION, 

WASHINGTON, DC, 

JUNE 24, 2014. 

Hon. DOC HASTINGS, Chairman, 

Hon. PETER DEFAZIO, Ranking Member, 

House Natural Resources Committee, 

Washington, DC 20515. 

Hon. TOM MCCLINTOCK, Chairman, 

Hon. GRACE F. NAPOLITANO, Ranking Member, 

House Subcommittee on Water and Power, 

Washington, DC 20515. 

DEAR CHAIRMAN HASTINGS, RANKING MEMBER DEFAZIO, SUBCOMMITTEE CHAIRMAN MCCLINTOCK AND RANKING MEMBER NAPOLITANO: 

Thank you for holding today’s hearing, entitled, ‘‘New Federal Schemes to Soak 

Up Water Authority: Impacts on States, Water Users, Recreation, and Jobs.’’ The 

Portland Cement Association (PCA) represents twenty-seven (27) cement companies 

operating eighty-two (82) manufacturing plants in thirty-five (35) states, with distribution centers in all fifty (50) states, servicing nearly every congressional district. 

PCA members account for approximately eighty (80) percent of domestic cementmaking capacity. On behalf of PCA, I wish to share the views of America’s cement 

manufacturing industry. 

PCA has serious concerns with the proposed changes to the Clean Water Act and 

the economic ramifications the rule would have on the building and construction 

sectors. The interpretative effects of the rule would directly impact domestic cement 

production as plant operators determine the new law’s jurisdiction on their property. 

In terms of production, the cement industry is regional in nature. Most cement manufacturing plants are located in rural areas near limestone deposits, the principal 

ingredient in producing cement. Cement manufacturing is a capital-intensive industry, and manufacturing sites are constructed near limestone deposits where possible 

with the presumption that the mineral will continue to be accessible. PCA is concerned that the proposed rule would prevent facilities from fully accessing these 

limestone deposits. At a minimum, the rule would require hydrological and geological surveys and increased layers of regulation that are costly and time consuming. 

Land developers also would be more susceptible to citizen lawsuits challenging 

local actions based on regulations that are poorly defined. Increased project delays 

and production costs for critical infrastructure and commercial development projects 

would be severe and damaging to a sector that continues to recover from the severe 

economic downturn. 

America’s cement manufacturers urge lawmakers to communicate industry concerns to the Environmental Protection Agency and the U.S. Army Corps of 

Engineers. PCA supports measures, including legislation, that address industry concerns, including withdrawal of the rule and limitations on funding to implement the 

rule. 

84 

Thank you for holding today’s hearing. PCA looks forward to working with you 

and members of the committee on this important issue. 

Sincerely, 

CARY COHRS, 

Chairman of the Board. 

TROUT UNLIMITED, 

ARLINGTON, VA, 

JUNE 25, 2014. 

Hon. TOM MCCLINTOCK, Chairman, 

Hon. GRACE F. NAPOLITANO, Ranking Member, 

House Subcommittee on Water and Power, 

Washington, DC 20515. 

Re: June 24 hearing on ‘‘New Federal Schemes to Soak Up Water Authority: 

Impacts on States, Water Users, Recreation, and Jobs’’ 

DEAR CHAIRMAN MCCLINTOCK AND RANKING MEMBER NAPOLITANO: 

I write on behalf of Trout Unlimited and its 155,000 members to comment on 

Federal policies regarding water resources, specifically the Forest Service’s Proposed 

Directive for Groundwater Resource Management and the Administration’s Clean 

Water Act jurisdiction rulemaking. The title of the hearing suggests that Federal 

policies have a negative influence on jobs and recreation. To the contrary, the aforementioned directive and rulemaking are designed to protect the clean water that 

provides for fishing, hunting, and other forms of outdoor recreation and substantial 

numbers of jobs and economic activity generated through those activities. 

Each year, 47 million Americans head into the field to hunt or fish. These are 

not simply traditions or hobbies—they are fundamental components of our Nation’s 

economy. The money sportsmen spend in pursuit of their passion supports everything from major manufacturing industries to small businesses in communities 

across the country. The economic benefits of hunting and angling are especially pronounced in rural areas, where money brought in during the hunting season can be 

enough to keep small businesses operational for much of the year. These expenditures directly and indirectly support more than 1.5 million jobs in every corner of 

the country and ripple through the economy to the tune of $200 billion per year. 

Many other forms of outdoor recreation also depend on clean water and a healthy 

environment. According to the Outdoor Industry Association, boating, including canoeing and kayaking, had a total economic impact of $206 billion in 2012 supporting 

1.5 million jobs. 

Forest Service’s Proposed Directive for Groundwater Resource 

Management 

The Forest Service Organic Administration Act directs the agency to secure 

‘‘favorable conditions of water flows.’’ 16 U.S.C. § 473, 475 (1897). The proposed 

Groundwater Directive is an essential step toward fulfilling the agency’s fundamental statutory mandate. TU applauds the Forest Service for taking this step to 

become the steward for supplies of fresh water for future generations that the 

Organic Administration Act contemplated in 1897. 

The hydrologic connection between groundwater and river systems is increasingly 

recognized as a key component to sustainable water management. Western states 

in particular have begun to integrate groundwater concerns with surface water 

management. The Forest Service has a role to play in sustainably managing water 

resources and ensuring fresh water supplies into the future. The Multiple-Use 

Sustained-Yield Act (MUSYA)—which recognizes watershed protection as one of five 

co-equal purposes of National Forests nationwide—authorizes the Forest Service to 

cooperate with state and local government agencies and other interested parties to 

advance management efforts. 16 U.S.C. § 528, 528, 530 (1960). 

The Forest Service plays a major role in minimizing both water filtration costs 

for downstream communities and flooding by managing healthy landscapes that 

allow rivers to connect to their floodplains. Prior to the proposed directive the Forest 

Service has not had a policy that provides comprehensive direction for management 

of groundwater resources on national forest lands. A national groundwater policy 

helps to clarify responsibilities for groundwater resource management at each level 

of the Forest Service. 

85 

Because existing Forest Service water policy is limited to surface water, the agency’s ability to address watershed-scale adaptation issues is seriously hampered. For 

example, groundwater leaking into mining works, and the resulting dewatering of 

streams due to interception of groundwater inflows, can cause serious problems. 

This can be mitigated with liners and patch-like corking at points of groundwater 

intrusion. Groundwater is an integral component of the hydrological cycle in all watersheds. The Forest Service’s proposed directive fills a major gap in existing agency 

resource management policy. 

Based on TU’s extensive work with state-held water rights and water policy, we 

believe the Forest Service can amend the existing Forest Service manual to recognize the hydrologic connection between surface water and groundwater while respecting state-managed water allocation procedures. This can be done without imposing any new requirements on holders of state-issued water rights, and without 

changing the way state groundwater or surface water quality regulations affect national forests and grasslands. 

Clean Water Act Jurisdiction and Waters of the United States Rulemaking 

The Environmental Protection Agency and Army Corps of Engineers have proposed a rule to clarify the jurisdiction of the Clean Water Act. Even though these 

agencies are outside the subcommittee’s jurisdiction we offer the following comments 

to share our position on the proposed rule. TU strongly supports the proposed rule 

because it will clarify and strengthen the very foundation of the Clean Water Act’s 

protections for important fish and wildlife habitat. Based on our long experience 

working in the field with the Clean Water Act, and the detailed analysis completed 

by the agencies and OMB for the proposal, we believe that the new rule is worthy 

of thoughtful engagement through the recently extended comment period. The proposed rule will provide landowners, conservationists, and businesses with substantial improvements in how the law is implemented. 

The Clean Water Act is very valuable to TU. Our mission is to conserve, protect 

and restore North America’s trout and salmon fisheries and their watersheds. Our 

volunteers and staff work with industry, farmers, and local, state and Federal agencies around the Nation to achieve this mission. On average, each TU volunteer 

chapter annually donates more than 1,000 hours of volunteer time to stream and 

river restoration and youth education. The Act, and its splendid goal to ‘‘restore and 

maintain the chemical, physical, and biological integrity of the Nation’s waters’’ 

serves as the foundation to all of this work. Whether TU is working with farmers 

to restore small headwater streams in West Virginia, removing acidic pollution 

caused by abandoned mines in Pennsylvania, or protecting the world famous salmon-producing, 14,000-jobs-sustaining watershed of Bristol Bay, Alaska, the Clean 

Water Act is the safety net on which we rely. 

The Clean Water Act has yielded positive results over the past 40 years. When 

the Clean Water Act was first enacted, many of Ohio’s waters, such as Lake Erie 

and the Cuyahoga River, were so polluted that the goal of making these waters 

‘‘fishable and swimmable’’ was nearly unthinkable in some locations. Similarly, Long 

Island Sound and many New York waterways were plagued by pollution problems. 

More than 40 years later, Lake Erie hosts thriving steelhead and other sport fisheries, the Carmans River on Long Island hosts one of the most unique brook trout 

fisheries in the eastern United States, and Montauk is a world class saltwater fishing destination. These successes would not have been possible without the Clean 

Water Act. 

Unfortunately, the Nation’s clean water safety net is broken, and if you appreciate 

clean water and the Clean Water Act, then you will appreciate the agencies’ efforts 

to resolve the law’s most fundamental question: which waters are—and are not— 

covered by the Clean Water Act. 

Over the last 15 years a series of Supreme Court decisions have confused these 

protections. The agencies’ proposal takes important steps to clarify and restore protections to intermittent and ephemeral streams that may only flow part of the year. 

These intermittent and ephemeral streams provide habitat for spawning and juvenile trout, salmon, and other species, and protecting these streams means protecting 

the water quality of larger rivers downstream. Thus, sportsmen strongly support the 

reasonable efforts embodied in the proposal from the agencies to clarify and restore 

the protection of the Clean Water Act to these bodies of water where we spend much 

of our time hunting and fishing. Because of the uncertainties caused by the 

Supreme Court cases, a rulemaking was sought by many business interests, as well 

as by Supreme Court Chief Justice Roberts who presided over the Rapanos case. 

The proposed rule works to clarify what waters are not jurisdictional. The proposed rule and preamble reiterates all existing exemptions from Clean Water Act 

jurisdiction, including many farming, ranching, and forestry activities. These exempVerDate Mar 15 2010 11:47 May 26, 2015 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05JU24 2ND SESS. PRINTING\88504.TXT DARLEN
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tions include activities associated with irrigation and drainage ditches, as well as 

sediment basins on construction sites. Moreover, for the first time, the proposed rule 

codifies specific exempted waters, including many upland drainage ditches, artificial 

lakes and stock watering ponds, and water filled areas created by construction activity. TU works with farmers, ranchers, and other landowners across the Nation to 

protect and restore trout and salmon habitat. We have a keen interest in ensuring 

that the proposal works well for landowners, on the ground, and on their properties. 

Last, we highlight the great, and direct, benefit that clean water and healthy watersheds provide to your districts and state. For example, California’s Water Action 

Plan prioritizes increasing protection for small headwater streams because watersheds in the Cascades, Sierra Nevada and other forested areas of the state are the 

places of origin for more than two-thirds of the state’s developed water supply. Just 

this month the state legislature and Governor’s office reached a budget deal that 

will bring new investment into headwaters and mountain meadow restoration for 

purposes of water supply reliability. Water originating in the Cascades and Sierra 

Nevada supplies all or part of the need for 23 million Californians and millions of 

acres of agricultural land. Up to one-half of the fresh water flowing into the Delta 

begins as snow and rain in these watersheds. The protections afforded by the Clean 

Water Act are needed now more than ever. 

Forty years after enactment the Clean Water Act has come to a major crossroads. 

The agencies authorized by the Transportation and Infrastructure Committee and 

full Congress to implement the Act, spurred by the Supreme Court itself and a wide 

range of stakeholders, have put forth a proposal that will help strengthen the very 

foundation of the law for years to come. 

Sincerely, 

STEVE MOYER, 

Vice President for Government Affairs. 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

Letter dated June 19, 2014, from Rep. Napolitano to Gina 

McCarthy, Environmental Protection Agency 

Memorandum of Understanding between the State of Wyoming 

State Engineer’s Office and the USDA Forest Service, Rocky 

Mountain Region 2 and Intermount Region 4, submitted by Patrick 

Tyrrell, Wyoming State Engineer 

Testimony given at a Joint Roundtable Hearing held on June 2, 

2014 in Phoenix, AZ, ′′Full Disclosure: What the EPA’s Water Rule 

Means for Arizona’’ 

—Schweikert, Hon. David, Chairman of the House Science, 

Space, and Technology Subcommittee on the Environment 

—Smith, Hon. Lamar, Chairman, House Science, Space, and 

Technology Committee 

—Franks, Hon. Trent, a Representative in Congress from the 

State of Arizona 

—Griffin, Hon. Gail, a Senator from the State of Arizona, 

Chairman of the Senate Government and Environment 

Committee 

—Salmon, Hon. Matt, a Representative in Congress from the 

State of Arizona 

—Engel, Dr. Kirsten, University of Arizona 

—Hinck, Matthew, Arizona Rock Products Association 

87 

—Kamps, Spencer, Home Builders Association of Central 

Arizona 

—Lacey, Michael J., Arizona Department of Water Resources 

—LaSlavic, Nicole, National Association of Realtors 

—Lynch, Robert S., Irrigation and Electrical Districts’ Association of Arizona 

—Mendoza, Gregory, Governor, Gila River Indian Community 

—Norton, Kelly, Arizona Mining Association 

—Smallhouse, Stefanie, Arizona Farm Bureau 

—Urton, J. Michael, San Carlos Irrigation and Drainage 

District, June 27, 2014 Letter 

Æ