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87–698 PDF 2014

FEDERAL REGULATION OF WATERS: IMPACTS OF 

ADMINISTRATION OVERREACH ON LOCAL 

ECONOMIES AND JOB CREATION 

(113–66) 

FIELD HEARING 

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

APRIL 28, 2014 (Altoona, Pennsylvania) 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

(II) 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

BILL SHUSTER, Pennsylvania, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee, 

Vice Chair 

JOHN L. MICA, Florida 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

SAM GRAVES, Missouri 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

LOU BARLETTA, Pennsylvania 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

DANIEL WEBSTER, Florida 

STEVE SOUTHERLAND, II, Florida 

JEFF DENHAM, California 

REID J. RIBBLE, Wisconsin 

THOMAS MASSIE, Kentucky 

STEVE DAINES, Montana 

TOM RICE, South Carolina 

MARKWAYNE MULLIN, Oklahoma 

ROGER WILLIAMS, Texas 

MARK MEADOWS, North Carolina 

SCOTT PERRY, Pennsylvania 

RODNEY DAVIS, Illinois 

MARK SANFORD, South Carolina 

DAVID W. JOLLY, Florida 

NICK J. RAHALL, II, West Virginia 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

TIMOTHY J. WALZ, Minnesota 

STEVE COHEN, Tennessee 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

JOHN GARAMENDI, California 

ANDRE ́ CARSON, Indiana 

JANICE HAHN, California 

RICHARD M. NOLAN, Minnesota 

ANN KIRKPATRICK, Arizona 

DINA TITUS, Nevada 

SEAN PATRICK MALONEY, New York 

ELIZABETH H. ESTY, Connecticut 

LOIS FRANKEL, Florida 

CHERI BUSTOS, Illinois 

(III) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... iv 

TESTIMONY 

Kenneth Murin, environmental program manager, Division of Wetlands, Encroachment and Training, Bureau of Waterways, Engineering and Wetlands, Pennsylvania Department of Environmental Protection ....................... 6 

David Spigelmyer, president, Marcellus Shale Coalition ..................................... 6 

Tonya Winkler, AICP, midstream permitting and compliance manager, Rice 

Energy, Inc. .......................................................................................................... 6 

Warren Peter, founder and president, Warren Peter Construction, on behalf 

of the Indiana-Armstrong Builders Association, Pennsylvania Builders Association, and National Association of Home Builders ..................................... 6 

Thomas R. Nagle, Jr., president, Cambria County Farm Bureau, on behalf 

of the Pennsylvania Farm Bureau ...................................................................... 6 

Jacqueline Fidler, manager, environmental resources, CONSOL Energy, Inc. . 6 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Kenneth Murin ........................................................................................................ 34 

David Spigelmyer ..................................................................................................... 39 

Tonya Winkler ......................................................................................................... 46 

Warren Peter ............................................................................................................ 51 

Thomas R. Nagle, Jr. ............................................................................................... 60 

Jacqueline Fidler ..................................................................................................... 65 

SUBMISSION FOR THE RECORD 

Steve Brown, president, National Association of Realtors, letter to Hon. Bill 

Shuster, a Representative in Congress from the State of Pennsylvania, 

April 25, 2014 ....................................................................................................... 4 

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(1) 

FEDERAL REGULATION OF WATERS: IMPACTS 

OF ADMINISTRATION OVERREACH ON 

LOCAL ECONOMIES AND JOB CREATION 

MONDAY, APRIL 28, 2014 

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, WASHINGTON, DC. 

The committee met, pursuant to call, at 9 a.m., at the Blair 

County Convention Center, One Convention Center Drive, Altoona, 

PA 16602, Hon. Bill Shuster (Chairman of the committee) presiding. 

Mr. SHUSTER. The committee will come to order. I first want to 

take the opportunity to thank everybody for coming out here today. 

I am pleased to welcome our panel of distinguished witnesses 

today. First of all, Ken Murin, environmental program manager for 

the Division of Wetlands, Encroachment and Training of the Bureau of Waterways, Engineering and Wetlands from the Pennsylvania Department of Environmental Protection. That is a long title, 

Mr. Murin. Thank you for being here. Mr. David Spigelmyer, the 

president of the Marcellus Shale Coalition; Tonya Winkler, AICP, 

midstream permitting and compliance manager for Rice Energy. 

Thank you for coming today. Warren Peter, the president of Warren Peter Construction. Thomas Nagle, president of the Cambria 

County Farm Bureau and a local cattle farmer, and Jacqueline 

Fidler, manager of environmental resources for CONSOL Energy. 

Thank you all for being here today. Today we are going to explore 

the impact and executive actions that the administration is taking 

to regulate the waters and restrict the development of important 

energy resources in Pennsylvania and elsewhere in the country. 

Last week the President published a proposed rule that would 

dramatically extend the reach of the Federal Government when it 

comes to regulating ponds, ditches, and other wet areas. This is an 

example of the disturbing pattern of the imperial Presidency that 

seeks to circumvent Congress. Unilaterally broadening the scope of 

the Clean Water Act and the Federal Government’s reach into our 

everyday lives will have adverse effects on the economy and jobs, 

increase the likelihood of costly litigation, and restrict the rights 

that landowners and local governments enjoy regarding decisionmaking on their own land. 

This Federal jurisdiction—was the subject of failed legislation in 

the 110th and 111th Congress, and I would like to point out that 

both those Congresses were controlled by the Democrats in the 

House and Senate at the time. Strong bipartisan opposition prevented those Bills from moving forward. Even in Congress now the 

2 

Obama administration is trying to achieve the power of expansion 

through a rulemaking. This proposed rule supposedly aims to clarify which water bodies are subject to Federal jurisdiction under the 

Clean Water Act. Twice the Supreme Court has told the agencies 

that there are limits to the Federal jurisdiction under the Clean 

Water Act and they have gone too far in asserting authority. So 

twice the Congress told the Democrats and twice the Supreme 

Court had said to the administration, the EPA, you don’t have this 

jurisdiction. 

It is a responsibility of Congress, not the administration, to define the scope of jurisdiction under the Clean Water Act. Similarly, 

the administration is taking steps to restrict the development of 

important energy resources in Pennsylvania. The administration is 

utilizing the Wetlands permitting process under the Clean Water 

Act to throw obstacles in the way of developing and transporting 

to market the gathering lines of natural gas produced in the 

Marcellus Shale region. Since 2011 when the Army Corps of Engineers issued Pennsylvania State a pragmatic general permit forum, 

the inferred concerns from industry and the DEP regarding several 

key changes have increased the permitting review time for natural 

gas gathering lines, delaying the delivery of gas from the well to 

the marketplace and delaying royalty payments to property owners 

and revenues to the State. 

I have met with and worked with industry, DEP, and the Corps 

over the last 3 years to attempt to address these concerns. While 

I am told the timeline has improved somewhat, the underlying 

changes that caused these problems in the first place have not been 

addressed. Regulations to the Nation’s water must be done in a 

manner that responsibly protects the environment without unnecessary and costly expense to the Federal Government. We can continue to protect our waters without unreasonable and burdensome 

regulations on our businesses, farmers, and families. 

I look forward to hearing from all our witnesses today, about 

their experience and thoughts on both the issues, and thoughts on 

improvements on the next general permit issues in 2015. 

I now yield to Mr. Gibbs, who is the chairman of the Subcommittee on Water Resources and Environment, for an opening 

statement. 

Mr. GIBBS. Thank you, Mr. Chairman, and I want to thank the 

witnesses for being here. I look forward to the testimony today. 

I would also like to thank Chairman Shuster for holding this 

very important and timely hearing—in Altoona. I appreciate your 

leadership on these important issues. 

On March 25 the EPA and the Army Corps of Engineers released 

a proposal that according to the agencies would clarify the scope 

of the Federal jurisdiction within the Clean Water Act. In reviewing the proposal I have serious concerns about implementations of 

water previously regulated by States rather than the Federal Government. When the Clean Water Act was first passed by Congress 

it was done so under the constitutional authority of the—clause defining jurisdiction as—waters. The proposal would effectively remove—resulting in the erosion of State authority and granting Federal jurisdiction to waters never intended for inclusion of the Clean 

3 

Water Act, including ditches, manmade ponds, flood plains, and unseasonably wet areas. 

However, the agencies have continued to claim that no waters 

would be covered in the rulemaking—no new waters in the rulemaking. When I questioned Army Corps and agriculture officials in 

the hearings last month about this issue, I found that rather than 

clarifying the issue, they made it muddier. Additionally, we are 

here today to learn about the cost regulations permitting pipeline 

projects that appear to exist only in Pennsylvania. 

I am particularly concerned about this new time-consuming process that my own district in Ohio is located above a large portion 

of—formation. Ohio can expect to see development of natural gas 

lines—pipelines similar to here in Pennsylvania. 

Once again, I would like to thank the chairman for holding this 

important hearing and I look forward to hearing from the witnesses. 

Mr. SHUSTER. I thank the gentleman, and everybody—Mr. Gibbs 

from Ohio, as he said there, I want to introduce the other Members 

who made the trip here today. To my far left is Congressman Scott 

Perry from York County—York County, Adams and the center 

part—central Pennsylvania; Congressman Jeff Denham from California—the Central Valley in California; and Congressman Tom 

Rice from South Carolina, Myrtle Beach, the third most popular vacation spot in America. 

Mr. RICE. You mean you didn’t come here for business? 

Mr. SHUSTER. I told him he needed to show some love to Pennsylvania because quite a few of our folks travel to Myrtle Beach for 

vacation. 

Mr. RICE. It—— 

Mr. SHUSTER. And—Pennsylvania money, too. We appreciate you 

making the trip up here—— 

Mr. RICE [continuing]. Come back early and all. 

Mr. SHUSTER. I thank each of the Members for being here and 

the staff for traveling up, and again, I appreciate the witnesses 

making the trip here today. I ask unanimous consent that the full 

statements be included in the record of all the witnesses. Since we 

have written testimony we ask that you keep your testimony to 5 

minutes. I am pretty quick with the gavel, but I won’t be too quick 

today. It is important, so I want to make sure you are heard, and 

any Members that don’t get a chance to ask questions, we will keep 

the record open for 5 days following this to pass on to you that opportunity. 

I will ask unanimous consent that written testimony submitted 

on behalf of the National Association of Realtors be included in this 

hearing—on this record. 

Without objection, so ordered. 

[The information follows:] 

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Mr. SHUSTER. And with that, I will start with Mr. Murin. 

TESTIMONY OF KENNETH MURIN, ENVIRONMENTAL PROGRAM MANAGER, DIVISION OF WETLANDS, ENCROACHMENT 

AND TRAINING, BUREAU OF WATERWAYS, ENGINEERING 

AND WETLANDS, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; DAVID SPIGELMYER, PRESIDENT, MARCELLUS SHALE COALITION; TONYA WINKLER, 

AICP, MIDSTREAM PERMITTING AND COMPLIANCE MANAGER, RICE ENERGY, INC.; WARREN PETER, FOUNDER AND 

PRESIDENT, WARREN PETER CONSTRUCTION, ON BEHALF 

OF THE INDIANA-ARMSTRONG BUILDERS ASSOCIATION, 

PENNSYLVANIA BUILDERS ASSOCIATION, AND NATIONAL 

ASSOCIATION OF HOME BUILDERS; THOMAS R. NAGLE, JR., 

PRESIDENT, CAMBRIA COUNTY FARM BUREAU, ON BEHALF 

OF THE PENNSYLVANIA FARM BUREAU; AND JACQUELINE 

FIDLER, MANAGER, ENVIRONMENTAL RESOURCES, CONSOL 

ENERGY, INC. 

Mr. MURIN. Thank you, Chairman Shuster. Thanks again for inviting the Department of Environmental Protection here this morning to provide testimony before the Committee on Transportation 

and Infrastructure on Pennsylvania’s program for issuing permits 

for projects under a consolidated permitting process, and more specifically, for oil and gas pipeline projects. 

Before providing details on the process, I would like to address 

another recent Federal matter that may be impacting Pennsylvania 

permitting activities. Last week the Environmental Protection 

Agency, EPA, and the United States Army Corps of Engineers, or 

the Corps as I’ll refer to, published a proposed rule regarding the 

definition of waters of the United States. This definition is to be 

used in determining the jurisdiction of the Clean Water Act with 

respect to the requirements for permits under section 404 as well 

as other Federal Clean Water Act programs. 

As the publication of the rule is recent and the rule is lengthy, 

the Department has not yet completed its review of the proposal. 

However, as Pennsylvania is home to over 86,000 miles of streams 

and rivers, and 404,000 acres of fresh water wetlands, DEP feels 

that this proposed rule may be particularly relevant to Pennsylvania and fully anticipates providing formal comments to EPA. 

Prior to finalization of the waters in the United States rule, DEP 

recommends the EPA and the Corps of Engineers reach out to 

Pennsylvania to discuss the comments provided by the Department. Once completed, DEP can provide these comments to the 

committee members and make them available to the public as well. 

Due to our ongoing review and our planned stakeholder outreach 

I will not be providing testimony on that proposed rule today. 

The Commonwealth of Pennsylvania is a water-rich State and 

the protection of these abundant water resources is vital to the 

health and the vitality of the Pennsylvania citizens’ environment 

and economy. Pennsylvania has a vast energy portfolio, ranking 

second in the Nation, in natural gas production and fourth in the 

Nation in coal production. Pennsylvania is the only producer in the 

Nation of high-heat anthracite coal. The role of the Department of 

Environmental Protection is to ensure environmentally responsible 

7 

development of the Commonwealth’s vast energy resources, which 

includes protection of the equally abundant fresh water resources. 

In Pennsylvania, the Dam Safety Encroachments Act and the accompanying regulations found at 25 PA Code, chapter 105, require 

permits for stream and wetland encroachments complimentary to 

those required under section 404 of the Federal Clean Water Act. 

Under Federal regulations the Corps has the flexibility to develop 

general permits on a statewide, regional or national basis. The Department has worked with the Corps to develop a joint permitting 

process that consolidates the State and Federal permitting process 

making it more efficient and less time-consuming without sacrificing environmental protection. 

In 1995 the Department and the Corps negotiated a statewide 

general permit, State Programmatic General Permit, or SPGP–1, 

for projects in Pennsylvania that impacted one acre or less of waters of the United States, including wetlands. Projects with greater 

impact cannot be authorized under this permit and were required 

to obtain the individual section 404 permit directly from the Corps. 

The Corps first issued its Pennsylvania State Programmatic General Permit on March 1, 1995. This general permit is renewed 

every 5 years, with the most recent renewal or the fourth generation, also known as SPGP–4, having been issued on July 1, 2011. 

During the review process that led to the most recent renewal of 

SPGP–4, the Corps’ interpretation and application of several terms, 

concepts and definitions used in the permit, as they relate it to 

pipeline projects, were modified. Specifically, these changes were 

intended to provide clarification of the process of permitting pipeline projects. Prior to the issuance of SPGP–4 in July 2011 the Department, in cooperation with the Pennsylvania representatives to 

Congress, attempted to negotiate some changes to the Corps’ clarifications; ultimately, however, the Corps did not make the changes 

recommended by the Department and the Pennsylvania congressional representatives. This is noteworthy as DEP will begin the 

process of negotiating the next permit renewal with the Corps next 

year, which is 2015, in order to have the SPGP–5 in place by July 

1, 2016. 

Under SPGP–4 the Corps defined three broad categories of impacts. Category 1 and 2 activities normally do not trigger any additional review by the Corps and authorize when a department provides State law approval. Category 3 activities, however, are reviewed by the Corps as well as the State, and some examples of 

projects that require the Corps’ review include projects with impacts that threaten endangered species, impact more than one acre 

of wetland, impact more than 250 linear feet of stream. Recent 

data provided by the Corps indicates that approximately 13 percent 

of the projects authorized from 2011 to 2013 require concurrent review by DEP and the Corps. Of these projects, approximately 32 

percent were pipeline projects. 

To provide a perspective in context on the joint permitting program, between July 1, 2011, and June 30, 2013, DEP reviewed approximately 9,500 authorizations under PA SPGP–4. It is important to point out that this statewide general permit covers more 

than just pipelines. It covers many activities associated with land 

8 

development in general, such as culverts, small bridges, docks, 

temporary stream crossings and intake and outfall structures. 

During the period of July 1, 2006, through June 30, 2011, over 

90 percent of the Corps’ authorizations were issued in less than 60 

days from the date of receipt of a complete application. From there 

the review delays, they were typically associated with deficient application submissions. 

SPGP–4 has been a critical tool used in consolidating the Federal 

section 404 and State chapter 105 permitting processes in Pennsylvania, although it was tailored to allow for one-stop authorization 

of the projects under both section 404 of the Federal Clean Water 

Act and the State chapter 105 regulations. PA SPGP–4 is a Corps 

permit and the Corps controls the extent to which a Corps review 

is necessary. 

Mr. SHUSTER. If you can just sum up—— 

Mr. MURIN. OK. How much time do I have? 

Mr. SHUSTER. About another 30 seconds. 

Mr. MURIN. OK. All right. 

The consolidated State and Federal permitting processes under 

SPGP have been effective, allows environmental responsible development of the Commonwealth’s vast energy resources. As we look 

to the upcoming renewal of the State Programmatic General Permit in 2016 the Department is optimistic that working together 

with the Corps we will be able to reevaluate the requirements of 

Nationwide Permit 12 and the State Programmatic General Permit 

with regard to the use of certain critical terms/definitions that 

bring in greater consistency and efficiency into the implementation 

of these important Clean Water Act requirements. 

Thank you for your interest regarding this issue and opportunity 

for the Department to provide this testimony. 

Mr. SHUSTER. Thank you, and your testimony is—we have it full 

in the record here and we are going to get into some questions and 

we will talk to you about some of those issues. 

Mr. MURIN. OK. Thank you. 

Mr. SHUSTER. And with that, Mr. Spigelmyer. 

Mr. SPIGELMYER. Good morning, Chairman Shuster, distinguished members of the House Committee on Transportation and 

Infrastructure. My name is Dave Spigelmyer. I am the president of 

the Pittsburgh-based Marcellus Shale Coalition, a trade association 

representing some 300-some producer pipeline and supply chain 

members. Our members represent the largest and most active companies producing, gathering and transporting more than 95 percent 

of the natural gas now being produced here in the region in the 

Commonwealth of Pennsylvania. You have a copy of my formal testimony which I will summarize this morning in my comments. 

Increased development of natural gas here in the region has 

made game-changing contributions to our economy, our energy security, and due to the increased use of natural gas, EPA has reported that we have significantly reduced carbon dioxide emissions 

in the region, bettering our environment. We have done so well reducing energy costs for nearly every citizen in the United States. 

In 2008 prices of natural gas at the well had hit $13.71 per Mcf, 

or thousand cubic feet. After a nearly record-cold winter here in the 

Northeast this year our well had prices and delivered utility prices 

9 

are less than half of what they were just 6 years ago. In 2008 our 

vertical drilling conventional industry produced 25 percent of the 

natural gas we consume here in the Commonwealth. Today, unconventional horizontal development accounts for more than 14.3 billion cubic feet of production per day, equaling 5.2 trillion cubic feet 

annually or more than 20 percent of America’s natural gas demand 

being developed right here in our backyard. 

These contributions are huge in terms of change in our national 

energy picture, and putting men and women to work right here in 

the Commonwealth of Pennsylvania. According to the Department 

of Labor and Industry here in Pennsylvania more than 241,000 

people in Pennsylvania are now employed either directly or indirectly by our industry. One great aspect of this work is that we can 

employ men and women right here at home trade in a hard hat in 

Pennsylvania—trade in a helmet and military uniform abroad for 

a hard hat here in the Commonwealth. And with nearly every consumer product, all steel, glass, plastics, chemicals, fertilizers and 

powdered metals that we touch today being manufactured through 

the use of natural gas, we believe that abundant, affordable and reliable supplies of natural gas are poised to open up huge new manufacturing opportunities here in Pennsylvania and likely all over 

this Nation. 

However, a critical in—shale development, including the 

Marcellus and Utica Plains, is the requirement to gather and 

transport natural gas to consumers. Predictable and consistent authorization in the permitting process for pipelines is critical if the 

benefits of shale development are to continue in our region. Today, 

hundreds of completed wells await a pipeline connection to transport that gas to consumers here in Pennsylvania and throughout 

the region. Wells that are unable to be tied into a pipeline slows 

the delivery of that product to market, and slows the royalty revenues that would flow to mineral owners across the State. 

The primary reason for the delay is that approving pipeline 

projects rests in the review process now embraced by the Baltimore 

District of the U.S. Army Corps of Engineers. Federal jurisdiction 

applies to these projects in the location where pipelines cross the 

waters of the United States, pursuant to section 404 of the Clean 

Water Act. In Pennsylvania, authorization of these projects typically has been provided under the State Programmatic General 

Permit, issued pursuant with the Clean Water Act, section 404(e). 

The Pennsylvania State Programmatic General Permit #4 was 

reissued effective July 1, 2011, by the Baltimore District of the U.S. 

Army Corps of Engineers. As a result of this change by the Baltimore District, the requirements for a review embodied in the State 

Programmatic General Permit have created an inefficient process 

that is now duplicative of the State’s review. Today, the process 

being followed by the Baltimore District of the U.S. Army Corps requires nearly all pipeline projects, both large and small, to undergo 

individual review by the Corps, reviewing the total impacts of a 

project, and not just the individual water crossing being authorized. 

The approach for project authorization for these type of projects 

reflected in the State Programmatic General Permit is inconsistent 

with the goal—of the Corps’ own goal, inconsistent with its regulaVerDate Aug 31 2005 13:37 Dec 15, 2014 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 P:\HEARINGS\113\FULL\4-28-1~1\87698.TXT JEAN
10 

tion, and represents a marked departure from the longstanding approach of evaluating each water crossing individually, which leads 

to substantial permitting delays. 

Combining the total impacts of an overall project for 

preauthorization review of each individual water crossing is also 

inconsistent with the Corps’ definition of a single and complete 

project, and is inconsistent with the rationale expressed by the 

Corps when it adopted this review process. No other district in the 

Army Corps where our members operate approaches the permitting 

function for gathering lines and midstream pipelines in the manner 

now in place in Pennsylvania. 

In all other areas of the country where gathering lines are being 

built, the Corps adheres to its regulatory definition of single and 

complete, and evaluates each crossing of water individually. The 

adherence by other Army Corps districts to the regulatory definition of a single and complete project is in accord with the Corps’ 

own rules, and allows for efficient and effective review of those 

projects. Furthermore, the review by the Baltimore District of the 

Army Corps, under the State Programmatic General Permit, does 

not alter the manner in which these projects are designed or constructed. 

Their review of these projects is unnecessary, it is duplicative, 

and it does not provide meaningful environmental benefit, yet the 

Army Corps process imposes substantial administrative burden, 

adds additional costs, and significant delays that could be eliminated. The delays being experienced in Pennsylvania erode our 

competitive standing as a location to invest capital, and can impact 

the job growth that has revitalized communities all across this 

Commonwealth. 

I appreciate the opportunity to appear before you today, and 

thank you for allowing me to testify. I welcome your questions. 

Mr. SHUSTER. Thank you very much. And with that, Ms. 

Winkler, you may proceed. 

Ms. WINKLER. Good morning, gentlemen. I am Tonya Winkler. I 

am the midstream permitting and compliance manager for Rice Energy, Inc. Rice Energy is engaged—it is not on. There we go. I will 

borrow this one. Start over. 

Good morning, gentlemen. I am Tonya Winkler, midstream permitting and compliance manager for Rice Energy, Inc. Rice Energy 

is engaged in exploration and production of natural gas wells, and 

gathering and transportation of natural gas from our wells to our 

sales points, as well as installation and operation of water transfer 

lines for the use in production of our natural gas wells in Pennsylvania and Ohio. 

Rice Energy currently owns and operates approximately 40 miles 

of natural gas gathering lines, with a proposed 110 miles to construct in the next year. Additionally, we currently operate 33 miles 

of water transfer lines, with a proposed 73 miles to construct in the 

next year. An integral part of that successful development of both 

the Marcellus and the Utica Plains is the construction of that midstream infrastructure. Consistent and timely authorization of these 

pipelines, as we propose them, and other midstream projects is 

vital to ensure that these constructions proceed as planned, on 

schedule, and within our budgets. 

11 

Rice Energy currently has millions of cubic feet of natural gas waiting to flow to market, estimated $56 million this year alone in 

lost revenue, just due to orphaned wells. Uncertain permitting review times and delays resulting in that lost revenue not only for 

Rice Energy, but loss of royalties for our landowners, loss of jobs, 

both for our midstream construction, as well as our oil and gas— 

or our drilling operations, loss of tax base for local, State, and Federal Government agencies as well. 

The delays that Rice Energy has experienced throughout the review process is not just isolated issues. For example, our midstream and completions team work together and collaborate methods to utilize water transfer lines for various stages of our operations, but the untimely authorization process has led to stalled 

progress more often than not. The company now has 18 wells in inventory, with no pipeline installed to transport the water necessary 

for production, or to produce this gas and get it to market in Pennsylvania. These unanticipated delays in completions have resulted 

in the loss of millions of dollars over an operating year, in addition 

to the $56 million stated above. 

As recent—as a recent of—I apologize. As a result of these unpredictable delays, Rice Energy has now started to focus our operations elsewhere, where permit review times are a little more predictable, such as in Ohio, that is—Nationwide Permit 12 review 

process. As an example of what we—our permitting reviews in 

Pennsylvania, we presently have 85 percent of our midstream 

projects that are under DEP review also going under Corps review 

for the total impacts of the overall project, rather than the limited 

impact of an individual cross that is being authorized. 

This does lead to regular, substantial delays in authorization of 

our projects, and is hindering the ability of Rice Energy to develop 

and construct our infrastructure necessary to collect, gather, and 

transport this gas into market. Using recent data, Rice Energy estimates it takes an average of 80 days for projects that have only 

minimal and temporary impacts to waters of the United States to 

receive approval. Based upon our experience, it now takes at least 

11⁄2 or more years to get even the most basic midstream infrastructure pipeline project into sales. 

Rice Energy is wholly committed to working with the local, county, State, and Federal Government officials and regulators to facilitate our safe, responsible installation of natural gas gathering lines 

and water transfer lines, both in Pennsylvania, and in Ohio. However, the delays and increased costs in connecting these producing 

wells into market will continue, and does influence Rice Energy’s 

strategy for future development. The loss of development relates 

not only to our wells already completed and produced, but also for 

future wells yet to be drilled. 

I thank you for the opportunity that you gave me today to speak 

to you, and I look forward to answering any of your questions. 

Thank you. 

Mr. SHUSTER. Thank you very much. Mr. Peter, proceed. It is 

working. 

Mr. PETER. Thank you, Chairman Shuster, and thank you, members of the committee, for allowing me to testify here today. Again, 

my name is Warren Peter. I am founder and president of Warren 

12 

Peter Construction. I am located in Indiana, Pennsylvania. I am 

also here on behalf of the Builders Associations, national and Pennsylvania, and our local association. 

Home builders have been advocates for Clean Water Act since its 

inception. We have a responsibility to protect the environment, and 

it is a responsibility I know well, for, under the Clean Water Act, 

I must obtain permits for building projects. When it comes to Federal regulatory requirements, what I desire, as a small business 

owner, is a permitting scheme that is consistent, timely, and focused on protecting true aquatic resources. 

Landowners have been frustrated with the continued uncertainty 

over the scope of the Clean Water Act over the waters of the 

United States. There is a need for additional clarity, and the administration recently proposed a rule intended to do just that. Unfortunately, the proposed rule falls short. There is no certainty 

under this proposal, just an expansion of the Federal authority. 

These changes will not even improve water quality, as the rule improperly encompasses waters that are already regulated at the 

State level. 

The rule would establish broader definitions of existing regulatory categories, such as tributaries, and regulates new areas that 

are not currently federally regulated, such as adjacent non-wetlands, riparian areas, flood plains, and other waters. And these 

changes are far-reaching, affected all Clean Water Act programs, 

but provide no additional protection, for most of these areas already comfortably rest under State and local authority. 

I am also concerned that the terms are overly broad, giving the 

agencies broad authority to interpret them. I need to know the 

rules. I can’t play a guessing game of ‘‘is it jurisdictional?’’ We don’t 

need a set of new, vague, and convoluted definitions. Under the 

Clean Water Act, Congress intended to create a partnership between the Federal agencies and State governments to protect our 

Nation’s water resources. 

There is a point where Federal authority ends and State authority begins, and the Supreme Court has twice affirmed that the 

Clean Water Act places limits on Federal authority over waters, 

and the States do regulate the waters under their jurisdiction. In 

Pennsylvania, wetlands have been regulated under State law since 

1980. Since that time, Pennsylvania has set an annual gain of wetland acreage. Pennsylvania takes its responsibility to protect its 

natural resources seriously. I also believe that Pennsylvania’s story 

is not unique. If you look around the country, you will find many 

other States are protecting their natural resources more aggressively since the passage of the Clean Water Act in 1972. 

The proposed rule will have significant impacts on my business. 

Construction projects rely on efficient, timely, and consistent permitting procedures and review processes under Clean Water Act 

programs. An onerous permitting process could delay projects, 

which leads to greater risks and higher costs. Also, more Federal 

permitting actions will trigger additional statutory reviews by outside agencies under laws including the Endangered Species Act, 

the National Historic Preservation Act, and National Environmental Policy Act. It is doubtful the agencies will be equipped to 

handle this inflow of additional permitting requests. 

13 

I am uncertain of what environmental benefits are gained by this 

paperwork, but I am certain of the massive delays in permitting 

that will result. The cost of obtaining a Clean Water Act permit 

ranges from $28,915 to $271,956. Permitting delays will only increase these costs and prevent me from expanding my business and 

hiring more employees. 

The agencies have not considered the unintended consequences 

of this rule. Under this proposed rule, low-impact development 

stormwater controls could be federally jurisdictional. Many builders 

voluntarily select LID controls, such as rain gardens and swales, 

for the general benefit of their communities. This rule would discourage these voluntary projects if they required Federal permits. 

This proposed rule does not add new protections for our Nation’s 

water resources. It just shifts the regulatory authority from the 

State to the Federal Government. The proposed rule is inconsistent 

with previous Supreme Court Decisions and expands the scope of 

waters to be federally regulated beyond what Congress envisioned. 

Any final rule should be consistent with Supreme Court Decisions, 

provide understandable definitions, and preserve the partnership 

between all levels of government. All are sorely lacking here. 

And, again, thank you for the opportunity to testify today. I look 

forward to any questions. 

Mr. SHUSTER. Thank you very much. And with that, Mr. Nagle, 

proceed. 

Mr. NAGLE. Good morning, Chairman Shuster, and members of 

the committee. I am a cattle and grain farmer in Cameron County, 

Pennsylvania. Clean water is important to all of us, but the hearing is not about the water quality. Rather, it is about Federal agencies attempting to gain regulatory control over the land use, and 

using the claim clean water. 

Federal Clean Act—Water Act was signed into law before I was 

even born, but some have been saying—trying to claim power that 

the 1972 law never intended it to give. Farmers are straightforward people who believe the words mean something. Those of us 

in agriculture believe that the authors of the Clean Water Act include the term navigable for a reason, and, you know, as the Supreme Court case—have said that the Federal Government can 

only regulate navigable waters. 

However, recent proposals released by EPA and the Army Corps 

gives conflicting messages. It also seems it is trying to gain control 

over additional water bodies and lands that they touch. Just because homeowners’ lawns, or farm fields, or a school playground 

collects water after rain does not mean that they should be regulated under waters of the United States, but from the—what I understand, the regulatory proposal would do exactly that. 

EPA has stated that farmers are exempt from the proposed rule, 

and nothing will change, yet they also state that the rule will extend Federal regulations to most seasonal and rain—seasonal rain 

depending streams. This is confusing. It is my understanding that 

there are no protection in this proposal for common farming activities, and exemptions are available only for farmers continuing 

since—farming practices since 1977. Since I was born in 1979, does 

this mean the exemptions do not apply to me? 

14 

What if ultimate effect of the rule prevents farmers from passing 

their operations to their children, or prevents young people like 

myself from becoming farmers? By expanding the regulation to rain 

dependent streams, EPA could regulate new areas, like dry land. 

What if the expansion leads to new regulations, or eliminates common accepted farm practices? What would it require for the permit 

to control—for permits to control pests or mowed grass across a 

ditch? There is not guarantee that such permits would be issued, 

or even evidence that stopping these activities would have any real 

effect on water quality. 

States like Pennsylvania already have significant laws, and regulations, and programs in practice—in place to protect water considered unregulated, including intermittent streams. My written testimony identifies many of them. What’s more, our State DEP official 

can show that water quality improvements for many of the Statedriven and State-administered programs, and what if expanded 

Federal regulation harms the State’s ability to continue to improve 

upon successful initiatives? I am seriously concerned about the proposal, and its 370-page document, and full compliance. I—and if I 

misunderstand the regulation, I could be fined $37,500 per day. 

That is a pretty scary thought for a producer like myself. 

Over the next 90 days farmers like myself will be hard at work 

in the fields, and at least the agency should extend the comment 

period to 180 days to allow farmers to fully access how the rule will 

impact our business, so we can provide proper feedback. It would 

even be better if Congress took action in—it would even be better 

that if Congress took action—in 1972, Congress proposed to limit 

EPA authority to navigable waters, and in 2010 Congress rejected 

the legislation proposal that would do—that EPA now is attempting to do. 

I hope that Congress will help the—help farmers convince the 

agencies to ditch the rule. And thank you for the opportunity to 

testify today, and I will answer any questions. Thank you. 

Mr. SHUSTER. Thank you very much. Ms. Fidler, proceed. 

Ms. FIDLER. Thank you. On behalf of CONSOL Energy—thank 

you. On behalf of CONSOL Energy, a leading diversified energy 

company headquartered in the Appalachian Basin, and CNX Gas 

Company, a subsidiary of CONSOL Energy, we would like to thank 

you for the opportunity to address the committee on the proposed 

rule changing the definition of waters of the United States as it applies to the Clean Water Act. 

The proposed rulemaking expands upon the definition of jurisdictional waters, and would include waters not traditionally covered 

under the Clean Water Act. The EPA has indicated that the intent 

to of the proposed rule is to streamline the decisionmaking process 

with regards to which waters are jurisdictional waters by increasing clarity as to the definition of waters of the U.S. 

CONSOL Energy feels that proposed change is unwarranted due 

to current Federal regulation and robust State programs that are 

already in place to protect waters of the U.S. The proposed change 

will absolutely lead to increased permitting review and processing 

time due to the uncertainty of jurisdictionality, which will be an 

undue burden on industry. The expansion of jurisdictional waters 

would have substantial impact across the energy industry, and all 

15 

industries, by requiring permits for impacts to otherwise isolated 

waters, therefore triggering additional Federal requirements with 

little to no environmental benefit. 

In September 2013, EPA published their draft ‘‘Connectivity of 

Streams and Wetlands to Downstream Waters’’ report. The report 

was used as a building block for expanding the Clean Water Act’s 

regulatory jurisdiction, however, this was done prior to the Science 

Advisory Board review of the report. Such expansion of jurisdiction 

should not be based on a report that does not address the fundamental question of significance of any hydrological connection. The 

Science Advisory Board has published a similar conclusion in their 

draft review of EPA’s draft connectivity report. 

In addition to the rivers, streams, and wetlands traditionally recognized as waters of the U.S., the proposed rule includes a third 

category, known as riparian areas. The isolated resources in riparian areas do not pose a significant or direct impact to waters of the 

U.S. 

The connectivity report also does not fully account for the Army 

Corps of Engineers’ ‘‘1987 Wetland Delineation Manual,’’ which requires three field tests for determining the existence of a wetland. 

The author’s selective literature choices led to an error in the required wetland determination analysis, illustrating that the report 

was not ready to be finalized when the EPA drafted the proposed 

rule. 

At CONSOL Energy, we pride ourselves on being excellent stewards of the environment. Compliance with all regulations intended 

to improve and protect the environment in the areas where we operate is one of our top core values. CONSOL Energy’s environmental standards go above and beyond regulatory requirements. In 

working toward these values, our environmental strategy relies on 

avoidance of jurisdictional waters, as currently defined. The proposed rule change would significantly limit our ability to avoid 

newly regulated jurisdictional waters. The additional planning, retraining, permitting, and mitigation associated with this limitation 

significantly impacts our project lead times and costs. 

To demonstrate these impacts on a coal project, we have prepared two exhibits. This first one shows stream resources in an impact area as the rule is today. This is a large project that is just 

in the planning and design phase. We haven’t had a JD completed 

on it yet. This project as is right now, we are impacting 82,000 linear feet of streams. Now, if the rule were to be approved, this is 

how the impact area is increased. And this is actually a liberal determination, and we are only assuming a 100-foot buffer zone. 

However, if the rule was interpreted in the most conservative 

way, this entire area could be considered wetland area, and our impact would be large. Overall, it is an increase of 10 percent stream 

resources, 15 percent wetland resources, and an additional 581 

acres of this riparian area. It is a significant—it has a significant 

effect on our cost, and we are estimating, to mitigate this area, it 

would add over $10 million just to this project. 

In closing, CONSOL Energy would like to re-emphasize that we 

do not support the proposed rule changing the definition of the waters of the U.S. These changes would lead to considerable permitting delays, additional mitigation cost, and a loss in our ability to 

16 

consistently avoid and minimize, while extending waters of the 

U.S. coverage into areas that have no significant hydrologic connection to jurisdictional waters. Thank you. 

Mr. SHUSTER. Well, thank you all. Thank you, Ms. Fidler. Just 

let me start with you, Ms. Fidler. You mentioned this project here. 

You are confident under the current rule, on the way you had it 

laid out in the first slide, that you can protect those streams and 

the quality of water there with what you are doing? 

Ms. FIDLER. We will impact those streams, and we are—we plan 

on impacting those streams. It is budgeted, it is planned for. We 

will be mitigating in the same watershed as our impact. However, 

when you look at the project, if the proposed rule were to be applied, we would still probably complete the project, however, it 

would have to get some really hard—we would have to take a really hard look on whether or not we would be able to mitigate—— 

Mr. SHUSTER. Right. 

Ms. FIDLER [continuing]. Our impact. 

Mr. SHUSTER. Right. Thank you. 

Ms. FIDLER. Um-hum. 

Mr. SHUSTER. And I think it has been pointed out here by a 

number of you that—especially Mr. Nagle, that this proposed rule, 

there is great uncertainty. You are not sure how it is going to be— 

once it is—if it is implemented, how it will be rolled out there by 

the agency. And so I think good for us to—for me to start with the 

question. Mr. Murin pointed out that when you did the first Pennsylvania State Programmatic General Permit, you said that you 

put your comments in to the Corps, and they didn’t pay attention 

to them. Is that correct? That is what your statement said? 

Mr. MURIN. Generally, yes. As part of the SPGP process, both the 

Corps and the Department conduct a negotiation. As I mentioned, 

it is an Army Corps permit, but we did have some concerns about 

some of the interpretations—— 

Mr. SHUSTER. Sure. 

Mr. MURIN [continuing]. That were being—— 

Mr. SHUSTER. Yeah, but, going back before that, is that typical 

of the Corps of Engineers, or when you are dealing with the Federal agency, that they disregard many of your suggestions? 

Mr. MURIN. I wouldn’t say it is typical. I mean, it is a negotiated 

process. 

Mr. SHUSTER. Sure. 

Mr. MURIN. So each time—especially with SPGP, as I mentioned, 

that we are in the fourth iteration of it now, and so each time there 

are some discussions, and some of our suggestions are taken, recommendations, sometimes they are not. 

Mr. SHUSTER. Right. And Mr. Peter and Mr. Nagle, what has 

your experience been in the past? Not looking forward to this new 

rule, because, again, we don’t know, you know, what kind of impact 

it is going to have. What has your experience been dealing with 

these different agencies at the Federal level? Has it been one that 

it is ever increasing the burden on you, and—with getting minimal 

results? 

Mr. PETER. That is correct. It is always a timely manner, you 

know, and it just delays projects extensively on the time factor, 

17 

which always increases costs. You know, there is not speedy correspondence and so on, so it is very timely. 

Mr. NAGLE. I have had no personal experience with any—prior 

to this ruling coming, because with me—part of becoming a farmer, 

I have not had to experience anything with the EPA, so that is why 

the uncertainty where we go—here. 

Mr. SHUSTER. And in your daily activities out there on the farm, 

there are times when, what you mentioned about playgrounds and 

your farm, that water will lay somewhere, maybe depending on 

your farming techniques? Is that a big concern of yours? 

Mr. NAGLE. That is a large concern of mine, because, you know, 

if you have a rainfall that produces, you know, 2 inches of rain in 

20 minutes, anyone’s ground, or especially our fields, are going to 

have some streams, you know, intermittent rain streams. And we 

work with—pretty closely with NRCS now to have compliance, as 

far as conservation plants, nutrient management plants, to ensure 

water safety. You know, we have our field conservation strip, a 90- 

foot strip to prevent erosion, so we are pretty much taking all the 

precautions now. And, with further regulations, things could be 

more difficult for us. 

Mr. SHUSTER. Right. And things like, at a construction site, or 

on a farm, if you get a wet day, and you get ruts from your equipment that you don’t tend to, that can potentially have an unintended consequence of having water lay in it. So things as simple 

as that can have an impact. Is that correct? 

Mr. NAGLE. Yes. 

Mr. PETER. Yeah, I would think so. I mean, something as small 

as a very minor tributary that only has water in it when you have 

an excessive amount of rain, if they look at that, you know, I 

mean—and with our topography, especially here in Pennsylvania, 

I mean, we are all hills and valleys, and, you know, we get a heavy 

rain that comes down, it is going to run somewhere. You know, it 

is just a rain shower, but those, you know, if they look at those as 

being protected waterways, just a little stream that only happens 

whenever it rains, or like you are saying, a low area, or something 

in a playground that lays water, that could be just detrimental to 

the construction industry, and I am sure to the overall economy. 

Mr. SHUSTER. Right. It has been my concern that, you know, in 

Washington, DC, we do a one size fits all for everything, and that 

somebody tells these bureaucrats in Washington that, you know, 

the Pennsylvanians don’t love their land. I look here, everybody 

here is drinking—everybody here drank, I think, Pennsylvania 

water this morning, and we all care about water quality. 

And for the Federal Government to—it is not just in the environment. It is everything we do that happens in Washington, that they 

feel as though we don’t love our children enough to educate them, 

we don’t love our environment enough to protect it. So, again, I 

have grave concerns that this is going to happen, if it does happen, 

that we will see a never-ending rampup of regulations. And, again, 

a site like this, it is going to cost $10 million, potentially more. 

Ms. Winkler, your experience has been with the stream crossings, it increases the cost of your doing business? 

Ms. WINKLER. It does significantly increase our costs, not only in 

additional permitting, but in the delays, which has been mentioned 

18 

before, which increases total project costs overall. Not just in construction, but in just delay in getting gas in to market. 

Mr. SHUSTER. Right. Thank you. And with that, I will yield to 

Mr. Gibbs for some questions. We will probably have two rounds 

of questions. 

Mr. GIBBS. Thank you, Mr. Chairman. Mr. Murin, I am, you 

know, earlier this month, a few weeks ago, Secretary Darcy, the 

Secretary of Army Corps-Civil Works for my subcommittee, and— 

we talked about this proposed rule. And, you know, I kind of tend 

to almost interpret, maybe the general public might too, that by 

them putting out this proposed rule, they are implying that States 

aren’t doing their job. 

And I would first like you to comment on that, but, I am concerned, you know, Mr. Peter made some good comments about, you 

know, consistency, timely—delay—possibly delay permit—further. 

You know, as Chairman Shuster said, one-size-fits-all policy on 

Washington. Can you just kind of expand on what your thinking 

is? Is there really a need for the U.S. EPA and the Army Corps to 

expand their scope of jurisdiction, you know, how that applies to, 

you know, the job you are doing here in Pennsylvania as a State 

regulator? 

Mr. MURIN. OK. Yeah, I—at this point in time, as I mentioned 

in the testimony, is that we haven’t had a chance review the proposed rule yet, so, as far—it might be a little premature to anticipate what maybe the Corps or EPA is proposing. But at least currently, under the current rule, we see it as working pretty effectively, for the most part. Certainly, as I testified, that there are 

some anomalies as it deals with—especially the pipeline projects, 

and how certain definitions are interpreted, what the procedures 

are. 

But from Pennsylvania’s standpoint, we are looking for that efficiency. We want to have a consistent viewpoint. Anything that the 

State can certainly handle at the local—at the State level, or at the 

local level, that is something that we would like to promote. Certainly there are some differences. There will probably always be 

some differences because of the different legal authorities. But, 

from a State perspective, seems like things were—are working, for 

most part, pretty well. 

Mr. GIBBS. Does—to build on that a little bit more, I have heard 

some, I think, testimony today about the Baltimore District of the 

Army Corps, and it talks about the individual stream crossings, the 

pipelines. Is Baltimore District doing something different here in 

Pennsylvania than the rest of the districts around the country are 

doing, you know, in regards to the permitting process? 

Mr. MURIN. Overall in Pennsylvania, not just the Baltimore District—there are three Corps districts in Pennsylvania, Pittsburgh, 

Baltimore, and Philadelphia. And the Baltimore Corps District is 

the lead district, so it helps coordinate activities statewide. It is different from the standpoint that we do have the SPGP process. 

Some other States do rely upon the Nationwide Permit, the Nationwide Permit 12, as I mentioned, and some other folks that had testified as well. So, from that standpoint, there are some differences. 

I believe there are about 20 States around the country that have 

a SPGP process, rather than relying upon the Nationwide Permit. 

19 

Mr. GIBBS. All right. OK. Thank you. Mr. Nagle, a couple weeks 

ago, in Ag Committee, we had Secretary Vilsack before the committee, and I asked the Secretary if normal farming operations 

would be exempt under the rule, and he said absolutely. But then 

he had 52, I think it was, specific exemptions especially for dealing 

with the NRCS, the Natural Resources Conservation Services, 

farmers. Do you have any thoughts about why they would have to 

have a list of exempted rules if they think the rule—all farming opportunities are exempt? 

Mr. NAGLE. Yeah, I don’t know why they would have all farming 

exempt. I don’t know why they would have a list of exemptions 

that would have to do with our current thing with NRCS, technically involved with crop insurance, and things like that. We have 

to be in compliance with NRCS. So I would think, as a whole, generally, most farmers are already in compliance, so it kind of alarms 

me that they are asking for additional exemptions, if they are exempt. So that is kind of the problem that we—and I have, is the 

cloudiness of it. 

Mr. GIBBS. Yeah, I am really concerned about it too, because they 

make the statement that normal farming practices are exempt, but 

then they produce this list of specifics, and I don’t really know the 

necessity of that. And I also would be concerned, you know, just— 

I believe that this administration thinks that they already have jurisdiction of all waters of the United States, and then—State sovereignty issues are really concerning to me. I am going to yield 

back to the chairman, but we will do another round. Thank you. 

Mr. SHUSTER. Thank you, Mr. Gibbs. Like you say, we will have 

a second round. Now yield to Mr. Denham, chairman of the Subcommittee on Railroads, Pipelines, and Hazardous Materials, and 

he also happens to be a farmer from California, so he knows these 

issues that we have been talking about here today very, very well. 

So, with that, I yield to Mr. Denham. 

Mr. DENHAM. Thank you, Chairman Shuster. Ms. Fidler, looking 

at your map over here, what type of boats go on these different waterways here? Do you have any vessels that go on those? 

Ms. FIDLER. None that I am aware of. 

Mr. DENHAM. No? 

Ms. FIDLER. No. 

Mr. DENHAM. No boats? So—— 

Ms. FIDLER. These are very small—— 

Mr. DENHAM. You—— 

Ms. FIDLER. It is a very small stream. 

Mr. DENHAM. Could you even put a canoe, and maybe—put a 

paddle in the water, and—— 

Ms. FIDLER. Not even after a large rain event. 

Mr. DENHAM. So not navigable by any means? 

Ms. FIDLER. Not in my opinion. 

Mr. DENHAM. Do they ebb and flow with the tide? Does the tide 

create any movement in these? 

Ms. FIDLER. No, sir. 

Mr. DENHAM. How about interstate or foreign commerce? Do you 

have any vessels that go through those that create commerce in the 

local area? 

Ms. FIDLER. We do not. 

20 

Mr. DENHAM. Thank you. Now, obviously I asked those questions, because that is why the Clean Water Act was set up, from 

a national perspective. Mr. Murin, in California we have a State 

Water Board, and that State Water Board, has a great deal of regulatory authority over our farms, our water that comes off of our 

farms, certainly all of our different waterways. Do you have something similar here in Pennsylvania? 

Mr. MURIN. Not that I am aware of, no. 

Mr. DENHAM. So do you have any regulations over your local and 

State water usage? 

Mr. MURIN. Yes, yes, we do, and the Department of Environmental Protection has the laws and regulations that we implement. 

Mr. DENHAM. And do you feel the need to have greater regulation, from a Federal perspective, or is Pennsylvania getting the job 

done currently? 

Mr. MURIN. I believe that we are getting the job done currently, 

based upon the implementation of our laws and regulations. 

Mr. DENHAM. So moving the standard from navigable waters, 

which obviously these are not navigable waters, to jurisdictional 

waters, waters of the United States, how is that going to adversely 

affected your regulatory authority? 

Mr. MURIN. I don’t know if I can answer that right now. As I 

said, we haven’t fully—or fully reviewed the proposed rule. I think, 

from Pennsylvania’s perspective, based upon the definitions that 

we have, for what we regulate under our Acts and our regulation, 

that we pretty much have all those waters already covered. 

Mr. DENHAM. To what size? What size of water are you regulating? 

Mr. MURIN. It is—it doesn’t regulate as far as size. I mean, all 

wetlands are regulated in Pennsylvania. Under the Clean Streams 

Law, we do have regulation over all waters that are defined in the 

Clean Streams Law. Streams, creeks, rivulets, dammed water, 

ponds, it goes on. Under the chapter 105 regulations, as far as 

streams, it is pretty much everything that has a defined bed and 

bank, to keep it simple. 

Mr. DENHAM. A bed and bank, meaning? 

Mr. MURIN. A bed of a stream with an established bank. There 

is a difference in elevation between where the stream flows and the 

bank. 

Mr. DENHAM. But a pond as well? You would have regulatory authority over a pond? 

Mr. MURIN. We do have some regulatory authority over that, certainly in the Clean Streams Law, and then from the Dam Safety 

Encroachments Act and chapter 105; it would depend on certain 

factors. 

Mr. DENHAM. And this new jurisdictional—what I would consider 

an overreach would not only regulate everything that you have described, but even go further to mud hole, puddle? I mean, this becomes a land use policy, as well as just water use, would you 

agree? 

Mr. MURIN. If it is—if the—if it is as you described, it would expand it from that perspective. 

Mr. DENHAM. Thank you. Mr. Chairman, my time has about expired. I will yield back. 

21 

Mr. SHUSTER. Thank you. And, with that, go to Mr. Perry for 

questions. 

Mr. PERRY. Thanks, Mr. Chairman. Mr. Murin, I am trying to 

figure out, and it seems that you would be the best person on this 

panel, maybe, to enlighten us as to what tangible clean water benefits, what water quality benefits, will be realized if this rule is enacted? 

Mr. MURIN. Again, I am not sure the specifics of what is proposed, but based upon what is existing, certainly the tangible benefits are protecting wetlands—— 

Mr. PERRY. I know what is existing. I am—— 

Mr. MURIN. Yeah. 

Mr. PERRY [continuing]. Talking about what is proposed. 

Mr. MURIN. Yeah. And I can’t—— 

Mr. PERRY. OK. All right. 

Mr. MURIN. I am sorry, at this time I can’t—— 

Mr. PERRY. All right. So would—based on what we think is proposed, if Mr. Nagle drove his tractor through a field, and there 

was, you know, there had been a rain maybe a week before, and 

there is a portion of it that is a little lower, but he is trying to get 

his crops in or out, maybe he gets a little close to it and leaves a 

ditch. Maybe he has to pull his tractor out with another tractor because he gets it mired into the axle, and—so on and so forth, leaves 

a ditch, can’t repair the ditch for some time because it is muddy. 

Ditch fills up with rain, with water. Is that now, under the current—or under the proposed rule under the jurisdiction? 

Mr. MURIN. Again, I don’t know. As far as—if there is no change 

to what is defined as far as a wetland, the wetland area would 

have to have the soils, the hydrology, and the plant community—— 

Mr. PERRY. It says ephemeral bodies of water. 

Mr. MURIN. Yeah. 

Mr. PERRY. Is that—would that be considered ephemeral? 

Mr. MURIN. No. 

Mr. PERRY. It is transient, it is not permanent, but there is water 

in it. What would the length of it have to be for it to be ephemeral? 

Mr. MURIN. I think there would have to be connectivity to 

other—— 

Mr. PERRY. So if it was a low-lying area—— 

Mr. MURIN. Yeah. 

Mr. PERRY [continuing]. That is generally dry, but occasionally 

wet, there is a ditch in it with water in it now, could the connection 

be made? 

Mr. MURIN. I guess it could. 

Mr. PERRY. OK. 

Mr. MURIN. Yeah. 

Mr. PERRY. Yeah. Point taken. So I have got a swing set in my 

backyard for my kids, and where they swing, you know, their feet 

grind out the dirt. There is much that—I try to put it back in and 

plant it, and so on and so forth, water in it. You are saying no, but 

it is up to—is it—would it be up to interpretation? 

Mr. MURIN. Yeah, I think that is—— 

Mr. PERRY. Yeah, that is a problem. 

Mr. MURIN [continuing]. When it comes down to—— 

Mr. PERRY. That is a problem for me. 

22 

Mr. MURIN. As far as the Department is concerned, those were— 

would not be areas that we would—— 

Mr. PERRY. As far as your Department is concerned right now. 

Mr. MURIN. Right. 

Mr. PERRY. However, you have been in a position on many occasions to enact things and enforce things foisted upon us by the Federal Government, even at your displeasure or disagreement. I 

would cite the Chesapeake Bay strategy, to a certain extent, to 

some of that. But I don’t want—— 

[Inaudible.] 

Mr. PERRY. Let me move on. I want to ask Mr. Spigelmyer a 

question. I have got a narrative here out of the Los Angeles Times, 

4/26, so this is just a couple days ago, regarding energy prices 

going up for good. And it says, ‘‘The Federal Government appears 

to have underestimated the impact as well. An Environmental Protection Agency analysis in 2011 had asserted that new regulations 

would cause few coal plant retirements. The forecast on coal plants 

turned out wrong almost immediately, as utilities decided it wasn’t 

economical to upgrade their plants, and scheduled them for decommission.’’ 

In vain—in light of that, in light of increasing prices, and in light 

of, you know, and other statistics in the same article, ‘‘Current regulations going into effect next year will result in 60 gigawatts of 

electricity out of the grid, which is tantamount to 60 nuclear reactors.’’ Based on that, when people say, you know, the regulations 

aren’t mattering all that much, you gas drillers, you oil people, you 

can go somewhere else. Taxes—you, you know, or no, you can’t go— 

the gas is here. If you want the gas and the oil, you have got to 

get it here. You folks in the energy industry, any other options? 

Mr. SPIGELMYER. First of all, yeah, Congressman, let me come 

back to the point that you made about electric power choice, and 

costs there. In 2007, 2008, the Public Utility Commission and the 

Commonwealth were actively talking to consumers across the— 

about the rate caps coming off, and power rates going up dramatically. At the same time, we were producing, you know, ample supplies of natural gas, and growing that supply rapidly through horizontal unconventional development. 

Prices dropped fairly rapidly. Power choice was made. Many of 

the generators in the Commonwealth, and this region, moved to 

natural gas, saving consumers billions from where we were going 

to be with rate caps coming off. Certainly added uncertainty with 

regulatory—with a regulatory environment. Added costs across the 

power generation sector will have an impact on price, no doubt 

about that. 

Mr. PERRY. Mr. Chairman, with your indulgence, just want to 

draw the thread. What I am trying to show and illustrate is that 

Mr. Murin, who is from the DEP, and this is his expertise, although he has, you know, he is not representing the Federal Government, the EPA, in this regard, but he is going to be the—they 

are going to be the agency that has to enforce a lot of this stuff 

in the State, and any other State, their—tantamount agencies 

would do the same thing, could quantify very little value in this 

regulation. 

23 

And the other side of the equation, whether you are in the farming industry, or whether—energy industry, additional regulation is 

going to cause significant tangible problems, especially in the energy industry, where there is a lack of power, especially during 

peak times, or unexpected things, like the polar vortex, or exceptionally hot periods of time, where everybody is running their air 

conditioning, that we are going to have blackouts, brownouts, not 

to mention—notwithstanding the increase—the great increase—46 

percent is what the article says the increases in prices will be. So 

nearly 50-more percent based on nothing else more than these regulations. And I yield back. 

Mr. SHUSTER. Thank the gentleman. Appreciate you making 

those points. With that, Mr. Rice is recognized. 

Mr. RICE. Thank you, Mr. Chairman. Well, at this panel here we 

have got represented food, energy, and construction, and regulation. Food, energy, and construction. We are talking about a process here that will lengthen the time for permitting, make it more 

difficult, and run up the costs, right? I don’t know what we are concerned about. We are just talking about food and energy, for God’s 

sake. Maybe we are overreacting here. Everybody in this room 

wants to protect the environment. This is one more example of Federal overreach. And my whole focus in Congress is on American 

competitiveness and jobs, and certainly food cost directly affects 

that, and certainly energy cost directly affects that. 

I believe the current administration thinks we need to be off fossil fuels altogether. I think that is their ultimate goal, and they 

want to run up the cost of fossil fuels to the point that alternative 

energy makes sense, because that is the only way it makes sense 

in the current environment. Hey, in the long run, I hope we are 

off fossil fuels eventually. I hope we are on alternative fuels. But 

we are not ready yet, are we? We don’t have the technology for it. 

So we have got to keep using what we have got. 

And, in my opinion, we should do everything we can to make 

that available, within reason. We need to protect the environment. 

But if we are going to be spending money on fossil fuels, we need 

to be doing it using our resources, I believe, and keeping our 

wealth here, instead of sending it overseas. 

I think that the cost of fuel is a fundamental factor in American 

competitiveness because, on the one hand, we create jobs right here 

using our own fuel, and we also keep our wealth here, which—and 

we create a tax base here, and we can use the taxes to build our 

own infrastructure, and all those things factor in competitiveness. 

But also, by putting these additional regulations on, by dragging 

our feet, not necessarily going out and stopping energy exploration, 

not necessarily going and putting up roadblocks to prevent it, but 

just not helping, by the Federal Government not helping with it, 

that we hold costs up. 

The war on coal, I have seen projections cost the average con- sumer $40 a month on their utility bill. When the President took 

office, fuel at the pump was $1.80 a gallon. Now it is $3.50 a gallon. Even though those monies don’t go to the Federal Government, 

there is still taxes. You still have to have the stuff. That is money 

out of consumers’ pockets. That consumer spending is two-thirds of 

the American economy. 

24 

And should we wonder why we have 2.8 percent growth 6 years 

after the Great Recession, should we wonder why we have 6.7 percent unemployment—who here believes that 6.7 percent is an accurate reflection of our unemployment in this Nation? I don’t either. 

So—no, I think that this is one more example of the administration 

maybe not putting up direct obstacles to energy exploration, but it 

is a way they could help, a way they are dragging their feet. Keystone pipeline, absolute case in point. 

There is a paragraph, Mr.—is Nagle or Nagle? 

Mr. NAGLE. Nagle. 

Mr. RICE. Nagle? In your written testimony that I thought was 

great. It says, ‘‘It is extremely difficult for me and my fellow farmers to trust the intentions of Federal officials in development of 

this proposed rulemaking, given the history of continuous effort of 

certain Federal agencies to expand their power and authority. 

These Federal agencies have tried to claim authority under the 

Clean Water Act of virtually any land area over which a bird flies. 

Federal agencies have openly tried to lobby Congress to remove the 

word navigable from the Clean Water Act. These types of actions 

make me, and other farmers, very doubtful that Federal officials 

will apply this new volume of regulations in a way that is fair or 

reasonable to us, or considerate of our needs and daily challenges.’’ 

Well, I don’t understand your concern. For goodness sake, you 

don’t trust the Federal Government? Yeah. Who was it? Was—I 

think it was you, Mrs. Winkler. Were you saying that in—looking 

at a stream crossing, that the Army Corps now looks at the gas 

flowing through the pipeline, and its effect when it is ultimately 

used? Was that you, or was that you, Mr.—one of you was talking 

about that. 

Ms. WINKLER. Go ahead. I think it was you. 

Mr. RICE. Yeah. 

Mr. SPIGELMYER. Actually, it wasn’t necessarily the gas flowing 

through the pipeline, but taking a look at overall impact, rather 

than the authorized use that we are trying to permit. 

Mr. RICE. So there—I know on the Keystone pipeline they are 

looking at the ultimate burning of the fuel, in terms of whether or 

not they are going to approve that pipeline. Are they doing that 

here as well? 

Mr. SPIGELMYER. Go ahead. 

Ms. WINKLER. In my experience, I haven’t noticed that so much 

as—really it has been the State of Pennsylvania to discuss about 

how we—a topic many of us have touched upon already. I think the 

State is doing a good job looking at each individual impact of every 

single stream, be it ephemeral, intermittent, or perennial. In my 

personal experience as a consultant, and working at Rice, I have 

yet to encounter a single permit in which the Army Corps comes 

in an requests anything different than what the State is already 

requesting us to do for protection. 

And so, in terms of the material flowing, I haven’t noticed that 

they are really looking at that. But in terms of each and every individual crossing, the State is already looking at that. The Army 

Corps isn’t adding anything but additional time. 

Mr. RICE. My time. 

25 

Mr. SHUSTER. Thank you. We could talk a little bit more about 

that, and I have been making the case that for the past 50 years 

or so the DEP in Pennsylvania has done just that, and the Corps 

just lays that layer over. I think it is Washington bureaucracy. 

Looking at the Marcellus Shale clay sand, there is 50 years of gas 

there. That means there is work for us, so that is why they put 

that layer in there. And we have been trying, in Congress, to push 

back on that. Unfortunately, we don’t have a Senate that is willing 

to work with us to do that. 

Can you talk about your experience, Pennsylvania versus Ohio, 

when it comes to permitting? Ms. Fidler, you can—— 

Ms. WINKLER. I think this will work better, thank you. Certainly. 

Rice is actually fairly new to our operations in Ohio. We just started within the past year. But what we have noticed is our ability 

to get into the construction phase our pipeline projects is incredibly 

fast. And from the time that we are ready to—we are—we start 

permitting to the time we are in construction, we are looking at 45 

to 60 days, versus my experience in Pennsylvania for a similar type 

of project, a short gathering line, maybe just a couple miles, in 

Pennsylvania I am probably looking, on an average, of about 100 

to 120 days. 

So, again, when you are looking at a cost of doing business—— 

Mr. SHUSTER. Time is money. 

Ms. WINKLER [continuing]. The exact same—similar type of 

project, Ohio is much faster under the Nationwide Permit 12 process. And, again, it is the exact same—similar type of controls. Rice 

Energy has actually gone above and beyond what Ohio currently 

requires, and we follow the Pennsylvania DEP rules for all our erosion control and sediment controls for our pipeline projects in 

Pennsylvania. But in just—we don’t have that double layer of regulation. We aren’t going through the DEP and the Army Corps. We 

are just going through one agency. 

Mr. SHUSTER. And the topography, the geology over in—— 

Ms. WINKLER. Where—— 

Mr. SHUSTER [continuing]. Ohio, is it similar to Pennsylvania? 

Ms. WINKLER. Where we are operating in Ohio, it is similar to 

Pennsylvania. We are in southeast Ohio, so the same type of rolling 

hill and terrain. Same type of concerns with, you know, sediment 

potentially running downhill. It is just—it is a difference of not 

having to get through as much regulation. But, again, you are getting the same type of controls, same result in the protection. 

Mr. SHUSTER. Ms. Fidler, did you have the same experience? 

Ms. FIDLER. Yeah, I think we have had the same experience as 

Ms. Winkler has with rights, and—on both the coal and gas side 

of our operations. You know, looking from State to State, and our 

coal operations in West Virginia even, it seems the permitting process is more organized, more consistent, and more clear. It seems a 

lot easier. And so, when you are evaluating a project, Pennsylvania 

kind of might land in second or third place. 

Mr. SHUSTER. Right. Mr. Spigelmyer? 

Mr. SPIGELMYER. Yeah. Mr. Chairman, due to the activities of 

both you and your office, as well as, you know the House Committee on Transportation and Infrastructure, we have seen some 

improvement in delay times at Army Corps. But, that said, it is 

26 

still redundant, it is duplicative, and it is time consuming to go 

through that process with little to no environmental benefit—— 

Mr. SHUSTER. Right. 

Mr. SPIGELMYER [continuing]. Being achieved. And, as you mentioned a moment ago, time is money, and delay is money. 

Mr. SHUSTER. Right. And, you know, that is the case we have 

been making—Mr. Spigelmyer has been making with your coalition. And whenever we bring in people from industry to sit across 

the table from the Corps of Engineers, the natural inclination is, 

because of the fear of the Federal Government, is the industry isn’t 

punching hard enough, making their case forceful enough, and so 

we have got to continue to do that. 

And again, you know, I understand, when you see what the IRS 

has done to groups out there, and the fear they have, again, coming 

up against a Government agency, the thought is, are they going to 

delay my permit a couple more days, or a couple more weeks, and 

cost me even more money? But we have got to make the case. And 

I guess Mr. Spigelmyer, you are the heavy hand of the industry, 

to come in and punch back. You have been doing a great job of 

that. But we have got to continue to make this case, because when 

we see this new regulation potentially coming out on the waters of 

the U.S.—I appreciate the fact that, Mr. Murin, you haven’t fully 

looked at this. It looks like CONSOL is really aggressively looking 

at it. That is because it is going to cost you lots of money, so you 

are looking at it aggressively, but this is the first hearing we have 

had on it. 

The rule only came out formally about a week ago, I guess, so 

Mr. Gibbs, I believe, has announced a hearing on May 8th on his 

Subcommittee on Water Resources and Environment, so I would 

encourage the State of Pennsylvania, DEP, to really come forward 

with your views on this. And we will, of course, be urging States 

across the country and industry that are going to be impacted by 

it. I know that the farmers and the construction industry have 

been looking at it, so again, we want to make sure that we get your 

views, because you are going to be the folks that live with this, if 

it is. 

We are fighting it. We are going to continue to fight it. But, you 

know, it is problematic, and it is—we think it is tough now with 

the stream crossings, I think this will probably—Mr. Murin, would 

you say that if this—although you haven’t looked at it in depth yet, 

but—if a reg comes out affecting the waters of the U.S., do you 

think that would affect stream crossing permitting in Pennsylvania? Add—— 

Mr. MURIN. It certainly could. I mean, certainly it is the Department’s perspective, again, to work with the Corps and the EPA to 

identify how we can best coordinate those activities, but—and we 

put in some policies and procedures ourselves to help ensure that 

that is done at the State level. But certainly the unknown is what 

would be done at the Federal. 

Mr. SHUSTER. Right. And, Mr. Perry, you mentioned that—is it 

the Los Angeles Times article that said a 46-percent increase? 

Mr. PERRY. Forty-six. 

Mr. SHUSTER. And what was the timeframe that they said—— 

Mr. PERRY. They said, I think, 15 years—— 

27 

Mr. SHUSTER. Fifteen years? 

Mr. PERRY [continuing]. Depends on what State you are in. 

Mr. SHUSTER. And I think that is something we haven’t seen 

here. I just had a coal-fired facility in my district close down, one 

next door in Congressman Murphy’s district, to two coal-fired 

plants. I think the estimates are, like, 390-some coal-fired plants 

will shut down in the coming years. 

And the American people haven’t realized the impact of energy 

costs going up as Mr. Perry quoted there. So that is a scary 

thought, to see that our energy costs are going to go up that much 

in the next decade or so because of these regulations. 

With that, I will yield to Mr. Denham for any questions that he 

has. OK. Any—Mr. Gibbs? 

Mr. GIBBS. Thank you, Mr. Chairman. I want to comment, I am 

glad Ohio is competitive. Welcome to Ohio. Come over to Ohio. I 

know we have got a lot of rigs from Pennsylvania there in Ohio 

right now, and you are very much welcome there. 

Mr. Spigelmyer, you know, on your permitting delays, when did 

the Marcellus kind of take off? What—how long has it been now? 

Mr. SPIGELMYER. The first Marcellus horizontal well was drilled 

in 2004, but real rampup in development began around 2008, late 

2007. 

Mr. GIBBS. How—what—roughly what percentage of current 

wells are shut in because they can’t get the connecting—— 

Mr. SPIGELMYER. It is probably less than 10 percent, but close to 

10 percent, and that is a pretty significant number when you think 

about the fact we have drilled about 7,000 wells in the Commonwealth to date, that have changed the outlook for natural gas supply not only for this Commonwealth. We have moved from a quarter of the natural gas that we consumed in the Commonwealth to 

being a net exporter, producing 20 percent of America’s natural gas 

demand from this region now. That is a pretty incredible feat in 

a short period of time. But when you start talking about 10 percent 

of your wells being shut in because of lack of pipeline infrastructure, or the delays associated with being able to build that infrastructure, it has significant impact on those—— 

Mr. GIBBS. Yeah, there is no doubt. I know in Ohio, in Utica, we 

have—it is more wet gas—— 

Mr. SPIGELMYER. Right. 

Mr. GIBBS [continuing]. And we are building 11 separation facilities—— 

Mr. SPIGELMYER. You bet. 

Mr. GIBBS [continuing]. Currently, and we have to connect them 

all up, and the gathering pipes—the pipelines to—break out the 

ethylene, and all the other wet gases, and dry gas, and it was a 

little different. 

Mr. SPIGELMYER. Yeah. We have an interesting situation in 

Pennsylvania, where we have a little bit of both. We have probably 

a world-class dry gas play in the northeastern part of the Commonwealth. Some would call it Gucci gas. It is pipeline capable gas almost right out of the well. And we have wells in northern Pennsylvania that may be the best in the world. Southwestern Pennsylvania is under-pressured. It does yield heavy hydrocarbons, ethane, 

pentane, butane, isobutene, propane. 

28 

All those liquid streams are there, and our operators are active, 

and need to do that same exact work that you are talking about 

in the eastern area of Ohio, building compression, building cryogenic facilities, pipelines, and gathering facilities. And we are very 

hopeful that soon we will also have cracking technology available 

to open up new opportunities of manufacturing. 

Mr. GIBBS. I will just open this up to the entire panel, but I am 

really concerned in the proposed nearly 400-page rule, which kind 

of blows me away. I know Secretary Darcy, in my committee a couple weeks ago, made the comment about case-by-case basis. And if 

you read through that rule, seems like there is a lot of discretion 

by the Feds to define what a tributary might be. You know, I think 

we had some discussion already. It could be a road ditch, obviously. 

But does anybody want to—I really want to hear case by case, 

if you talk about inconsistency, and a lack of certainty, and—I 

think we see a little bit here with the Baltimore Corps District, 

versus maybe the Huntington District, when—talk about pipeline 

permitting. Anybody want to expound on that case-by-case scenario 

that they are talking? 

Ms. WINKLER. OK. Well, I know, just from my experience, Rice 

is somewhat unique in that our operations in Pennsylvania, and 

our operations in Ohio, are all in the Pittsburgh Corps District. So 

to see the difference between a permit submitted in Pennsylvania, 

and a permit submitted in the—in Ohio, in the comments that 

you—the process is just amazing, even though it is going to the 

same Corps. 

Now, in terms of individual projects, and—I know right now in 

Pennsylvania, if it is a roadside ditch, we are already calling it a 

stream. It is an ephemeral stream. We do that. At least in the 

southwest region, we are required to do that. That—I think—really, all we are asking for, as an industry, we just want some consistency. You know, I don’t necessarily agree with having to call a 

roadside ditch a stream—— 

Mr. GIBBS. Yeah, I was just going to say, I would be careful with 

that, but—— 

Ms. WINKLER. Yeah. But what we are asking for—and I know 

Rice doesn’t either, but we just need—all we are asking for is just 

some consistency. If it is a roadside ditch, it is a roadside ditch. 

You know, it is not carrying—it is not navigable. You can’t put anything on it. It is not carrying any large amount of water any one 

time. And so—— 

Mr. GIBBS. I just wanted to ask a quick question—— 

Ms. WINKLER. Um-hum. 

Mr. GIBBS [continuing]. Of Ms. Fidler. You talk about the Science 

Advisory Committee hasn’t reported yet. I brought that up with 

Secretary Darcy, and I got kind of a gray answer. You stated in 

your comments that the report hasn’t been put out yet, is that correct, and that it is—or it is under review, and—but they put the 

proposed rule out there anyways? 

Ms. FIDLER. That is right. The EPA’s draft report was put out 

before the Science Advisory Board had an opportunity to review it. 

And right now, on their Web site, the Science Advisory Board’s review is in a draft form—draft form. 

Mr. GIBBS. OK. Thank you. Thank you, Mr. Chairman. 

29 

Mr. SHUSTER. Mr. Perry? 

Mr. PERRY. Thanks, Mr. Chairman. I am going to start out with 

Ms. Winkler. I understand that no other district of the Army Corps 

approaches the permitting function for gathering lines, water 

transfer lines, and other linear facilities in the manner, and with 

the requirements now in place in Pennsylvania. If you are, if you 

are able to explain, why the difference with the Corps, how it 

treats Pennsylvania, and everybody else? 

Ms. WINKLER. Well, I think that is in regards to the PA SPGP– 

4 with the aggregation of all of our impacts. If you are in Ohio, 

each stream of—each stream crossing is considered its own individual project. 

Mr. PERRY. Same work in Ohio, same work in Pennsylvania. 

Ms. WINKLER. Same work—— 

Mr. PERRY. Why is it treated differently? 

Ms. WINKLER. I cannot answer that question for—but I—— 

Mr. PERRY. OK. Mr. Murin, can you answer—— 

Ms. WINKLER [continuing]. They do. 

Mr. PERRY [continuing]. Answer that question? 

Mr. MURIN. I would answer it the same way, that it is in the way 

that the interpretation is of some of the terms. 

Mr. PERRY. So the point I want to make is that the Federal Government, whether it is the EPA, or the Corps of Engineers, or anybody, has the ability to interpret, based on what they view, and it 

can be completely different for one citizen or another based on that 

interpretation, and nothing else. Is that—am I right or wrong, 

based on what you know about the Corps’ decision in Pennsylvania, 

versus the neighboring State of Ohio, or any other of the 49 States? 

Mr. MURIN. My understanding is that the Corps can make those 

regional determinations. 

Mr. PERRY. Right. OK. So—and herein lies, you know, the problem with giving the blanket authority to the Federal Government, 

whether it is the EPA or the Corps of Engineers. Mr. Peter, you 

build houses, right? 

Mr. PETER. Correct. 

Mr. PERRY. So, based on your testimony, and I agree, based on 

what I have read, regarding the proposed rule, the term shallow, 

or shallow subsurface connection, leaves the door completely open, 

and unbounded jurisdiction by the Department, or blanket jurisdiction for determination. So you build houses, right? 

Mr. PETER. Um-hum. 

Mr. PERRY. You buy a piece of ground, you are doing a spec 

home. Maybe you are doing some townhomes, some low-cost housing so people can get in the first time. You are working with the 

local zoning commission, the local planning commission. You get 

your stuff in order, and you start building, and it is based on a 

price point for somebody to get in. Maybe a first time homeowner 

like I was at one point, $100,000, $150,000, something like that. 

And all of a sudden this subsurface connection, below the surface, is made between the ditch your pettibone made putting up the 

roof and the stream a quarter mile away. What does that do to 

your price point? What does that do to your business? 

Mr. PETER. Well, I could see, you know, definitely affecting the 

cost significantly because of it is happening to, you know, if they 

30 

take it into consideration as, you know, as a waterway, I mean, to 

protect that, and—— 

Mr. PERRY. How will you know about the subsurface connection? 

How do you know? 

Mr. PETER. You don’t. I mean, and that is—— 

Mr. PERRY. How do they know? 

Mr. PETER. Yeah. I don’t know what the—I don’t know how anybody would know what is there. 

Mr. PERRY. Well, how can you plan for that when you are doing 

your cost estimate about how much you are going to sell that home 

for to a new time home buyer—first time home buyer? 

Mr. PETER. It would be very difficult to plan for. You know, the 

only thing that you could do—— 

Mr. PERRY. Wouldn’t it be just a guess, like, a hope, that I could 

build it before EPA came in and made the connection? 

Mr. PETER. Right. It is—correct. It is either that, or, as I am indicating—some of which is—but sometimes you have to look at 

things and anticipate the worst. And, of course, then that increases 

the cost. And, you know, if that is—comes to that point, when you 

are looking at something like that, you may have to build a factor 

in there if you experience—and, you know, a money factor included 

into your project, which—and then, as I say, then, you know, we 

try to keep housing affordable, and that is our goal, all of us. So, 

if you have to do that, you know, and then maybe it wouldn’t be 

used, but maybe it would be. But everybody is going to have to 

build something in there in case something like that happens. 

Mr. PERRY. OK. Thank you. Mr. Nagle, you know, I think a lot 

of people don’t understand the cost of farming when you have got 

a head for a combine costing $100,000, and that doesn’t include the 

machine itself, and you need multiple heads, you need a corn head, 

you need a weed head. How does this potentially affect—you are— 

I don’t know how anybody young gets into farming. You have got 

to pay a mortgage based on crops or animals, and mortgage on 

land. And I don’t know what it goes for around here, but where I 

live, it is pretty darn expensive. 

Like, nobody gets into farming. Everybody sells their farm for development because they can’t afford to, even though they may love 

it. Explain to us how this proposed rule is going to affect new people, young people, whether they inherit the farm, or whether they 

want to buy the farm. How is it—how do you see it affecting them? 

Mr. NAGLE. Probably some of the biggest factors affecting is the 

$37,500 per day fine if you are found on a rule that you weren’t 

in compliance that you don’t know if you are or you are not in compliance. I know myself, and probably most farmers, we wouldn’t 

stay in business too long if we were out of compliance for 10 or 20 

days. I mean, we don’t have any—that much capital. 

And then as far as the land that we farm, we have—setbacks on, 

you know, if an intermittent stream comes through once a year, 

they say you have to set back, you know, 100 feet on each side, 

multiplied by—if I am farming 750 acres, and pretty hilly in parts 

of Pennsylvania, so I am just guessing off the top—30 or 40 different ditches, that is a lot of acres that are tillable and not on crop 

production. And, you know, we are on a—definitely a market-based 

relation. We have to, you know, our bushels per acre. So that would 

31 

be—definitely affect the amount of acres that we would be actually 

farming. 

Mr. PERRY. Let me ask you this. Do you—the acreage you currently farm, do you know all the subsurface connections right now? 

Do you know them? 

Mr. NAGLE. No. No, I do not. 

Mr. PERRY. Do you know how to figure that out? 

Mr. NAGLE. No, I don’t. 

Mr. PERRY. Who is going to determine that? 

Mr. NAGLE. I am not sure who determines that. 

Mr. PERRY. Mr. Chairman, thank you. I yield. 

Mr. SHUSTER. Thank you. Mr. Rice? 

Mr. RICE. I have to come back to you, Mr. Nagel. You say you 

don’t trust the Federal Government to fairly and efficiently administer these rules to farmers, and I think that equally applies to 

these energy companies and contractors here. It would be absurd 

to think that if you mishandled a ditch adjacent to one of your 

fields that the Federal Government might shut that field down 

until the dispute was resolved, and charge you $37,500 a day. 

But it is also absurd to realize that it takes 10 years to get approval to build a highway, and it takes 15 years to get approval 

to dig out a port that has been dug out five times before. It is also 

absurd to think that it takes 5 years, and counting, to get the Keystone pipeline approved. So, no, I think your mistrust is well 

placed. 

I believe that Federal regulation is a noose around the neck of 

the American economy. I think if we can compete fairly globally, 

then nobody can beat us, but we are strangling our own selves. We 

have a noose of regulation around our own necks, and we are 

strangling our own selves. I think you should keep your mistrust. 

I think that George Washington, and Thomas Jefferson, and John 

Adams, and Ben Franklin, they didn’t trust the Federal Government either, and they are the ones who wrote the Constitution. So 

I am with you in that camp. 

I think we need to do whatever we can to avoid this rule being 

promulgated, number one, and we need to look at Federal regulation in general, and see what we can’t—can do to streamline and 

make it much more efficient, because it has grown completely out 

of hand, and this is just one area. I mean, throughout the entire 

Federal Government, this is a big, big problem. I have never dealt 

much with transportation and infrastructure issues before I was in 

Congress, and I have only been in Congress 15 months, but before 

that I was a tax lawyer for 25 years, and believe me, I understand 

the impact of Federal regulation on business. Thank you very 

much. 

Mr. SHUSTER. Thank you for being here. I just have one request 

for Mr. Spigelmyer. The Rice Energy situation is—again, if you can 

talk to someone of your membership, and if they can get their 

Pennsylvania experience, versus—I know you have got people that 

operate all over the country. And, again, I understand, and that is 

the question to Ms. Winkler about Pennsylvania and Ohio. They 

are just on the other side of the river from each other. So if you 

can get us examples—we will even blot out the names, because, as 

Mr. Rice points out, and I think everybody here, you don’t trust the 

32 

Federal Government. You are afraid they are going to do something 

to harm you financially if you spout off too loud. 

Mr. SPIGELMYER. Mr. Chairman, I mean, I think there will be 

plenty of examples to provide you. Like you, and Congressman 

Perry, you represent districts in Pennsylvania. Without predictability, without certainty, capital flows elsewhere. I don’t think it 

was intentional, but Congressman Gibbs made it real clear, it is 

easy to do business right now in Ohio. That is a competitive disadvantage for our Commonwealth. It is harder for us to attract 

jobs. It is harder for us to attract capital. It is harder for us to grow 

the play if we are a less predictable, a less certain environment to 

invest. And, you know, again, appreciate the help that you have 

provided, and attention you provided to this issue. We will continue 

to work closely and get the answers for you. 

Mr. SHUSTER. Again, I guess the last question I will ask you, Mr. 

Spigelmyer. It is my view that, you know, one of the diplomatic 

tools that we have available today, especially as we are faced with 

folks in the Middle East who don’t like us—energy, and with Russia. And I believe that if the President were to get FERC to sign 

some of these permits to start to build liquefied natural gas plants 

at our ports around this country, we would stop Putin—we would 

stop the Russians in their tracks. Do you think that is reasonable? 

Mr. SPIGELMYER. Yeah. It is certainly a global competitive play 

for America. Certainly it has changed, the—shale gas development 

generally across this country. This isn’t a Marcellus or a Utica 

play. This is—shale plays all across the U.S. have changed the outlook for energy, and it is a global strength for us. It has put people 

to jobs. It has brought men and women home from foreign land 

that, you know, had a helmet on to wear a hard hat today produce 

natural gas, to produce oil. 

You know, when I was young, we were 57 percent dependent on 

oil. As early as 2005, 2006, today, we are 42 percent dependent on 

oil—on foreign oil because of the fact we are producing more and 

more of it here at home. We need to continue to do that. 

Mr. SHUSTER. Well, again, thank you. And, again, I would encourage everybody, especially the State of Pennsylvania, before Mr. 

Gibbs holds his next hearing—it is important that the States, and 

the different associations, whether it is the Farm Bureau, or the 

home builders, or the energy companies, really making sure you 

are looking deeply at this rulemaking on the U.S. waters, because 

I think that all of us up here share your concerns, and I think they 

are valid. So we want to make sure that we hear from you. Not 

only that Congress hears, but to make sure your members of your 

associations are out there talking to the communities out there, 

what it is going to do to the cost of food, the cost of housing, the 

cost of energy. It is going to come out of the consumer’s pocket. 

So again, I think all of us want to protect the environment, but 

we need to do it in a way that is science-based, not some knee jerk 

reaction to protecting the environment, because it is going to cost 

us all in the end, jobs, it is going to cost us money, and we are not 

going to get an environment that is necessarily cleaner, or more 

protected. So, again, I thank everybody for taking the time, thank 

the folks in the audience who took the time to come out today, and 

33 

thank the Members traveling from the various States, appreciate 

it. Mister—— 

Mr. DENHAM. From Myrtle Beach. 

Mr. SHUSTER. Mr. Denham, do you want to make a commercial 

for California? Again, I really appreciate the Members coming out 

and spending the time here today, and this is the way that Congress gets the facts. And, as we move forward, we are going to be 

pushing back hard on this new regulation that they are looking at. 

So, again, thank you all very much. And, with that, do I have to 

say anything? Hold on a second, I have got to do housekeeping 

here. I ask unanimous consent the record of today’s hearing remain 

open until such time as our witnesses have provided answers to 

any questions that may be submitting in writing, and unanimous 

consent that the record remain open for 15 days for additional comments and information submitted by a Member or witnesses to be 

included in today’s record. Without objection, so ordered, and with 

that, the committee stands adjourned. 

[Whereupon, at 10:36 a.m., the committee was adjourned.] 

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