U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

99–734 PDF 2017

S. HRG. 114–552 

AN EXAMINATION OF PROPOSED ENVIRONMENTAL 

REGULATION’S IMPACTS ON AMERICA’S SMALL 

BUSINESSES 

HEARING 

BEFORE THE

COMMITTEE ON SMALL BUSINESS 

AND ENTREPRENEURSHIP 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MAY 19, 2015 

Printed for the Committee on Small Business and Entrepreneurship 

( 

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

DeShaun on LAP51NQ082 with DISTILLER

(II) 

COMMITTEE ON SMALL BUSINESS AND ENTREPRENEURSHIP 

ONE HUNDRED FOURTEENTH CONGRESS 

DAVID VITTER, Louisiana, Chairman 

JEANNE SHAHEEN, New Hampshire, Ranking Member 

JAMES E. RISCH, Idaho 

MARCO RUBIO, Florida 

RAND PAUL, Kentucky 

TIM SCOTT, South Carolina 

DEB FISCHER, Nebraska 

CORY GARDNER, Colorado 

JONI ERNST, Iowa 

KELLY AYOTTE, New Hampshire 

MICHAEL B. ENZI, Wyoming 

MARIA CANTWELL, Washington 

BENJAMIN L. CARDIN, Maryland 

HEIDI HEITKAMP, North Dakota 

EDWARD J. MARKEY, Massachusetts 

CORY A. BOOKER, New Jersey 

CHRISTOPHER A. COONS, Delaware 

MAZIE K. HIRONO, Hawaii 

GARY C. PETERS, Michigan 

ZAK BAIG, Republican Staff Director 

ANN JACOBS, Democratic Staff Director 

DeShaun on LAP51NQ082 with DISTILLER

(III) 

C O N T E N T S 

OPENING STATEMENTS

Page 

Vitter, Hon. David, Chairman, and a U.S. Senator from Louisiana ................... 1 

Shaheen, Hon. Jeanne, a U.S. Senator from New Hampshire ............................ 2 

Ernst, Hon. Joni, a U.S. Senator from Iowa .......................................................... 20 

WITNESSES

Panel 1: 

Maresca, Charles, Director of Interagency Affairs, Small Business Administration, Office of Advocacy, Washington, DC ..................................................... 4 

Panel 2: 

Dougherty Maulsby, Darcy, Fifth-Generation Iowa Farmer, Dougherty Farm, 

Lake City, IA ........................................................................................................ 21 

Noel, Karl Randall, President, Reve Inc., Laplace, LA ........................................ 27 

Milito, Hon. Elizabeth, Senior Executive Counsel, National Federation of 

Independent Business, Washington, DC ............................................................ 40 

Bulis, Benjamin, President, American Fly Fishing Trade Association, Bozeman, MT ................................................................................................................ 48 

ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED

American Sustainable Business Council 

Statement .......................................................................................................... 81 

Bulis, Benjamin 

Testimony .......................................................................................................... 48 

Prepared statement .......................................................................................... 50 

City of Baltimore Council Bill 14–0185R 

Resolution Introduced and Adopted September 8, 2014 ............................... 83 

Dougherty Maulsby, Darcy 

Testimony .......................................................................................................... 21 

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

EPA 

Summary of the Discretionary Small Entity Outreach for Planned Proposed Revised Definition of ‘‘Waters of the United States’’ ....................... 85 

Summary of the Small Entities Outreach Meeting on the Proposed Rule 

for Redefining Waters of the United States under the Clean Water 

Act, October 15, 2014 .................................................................................... 99 

Ernst, Hon. Joni 

Testimony .......................................................................................................... 20 

Latino Business Council 

Opinion by Ruben Guerra ................................................................................ 111 

Maresca, Charles 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 6 

Markey, Hon. Edward J. 

Advocacy Waters of the United States Contacts: Small Businesses and 

their Representatives .................................................................................... 62 

Milito, Hon. Elizabeth 

Testimony .......................................................................................................... 40 

Prepared statement .......................................................................................... 42 

National Farmers Union 

DeShaun on LAP51NQ082 with DISTILLER

Page

IV 

—Continued 

Letter Dated September 22, 2014 ................................................................... 113 

National Federation of Independent Business 

Jurisdictional Comments ................................................................................. 66 

RFA Comments ................................................................................................. 75 

National Wildlife Federation 

Letter Dated May 18, 2015 .............................................................................. 124 

Noel, Karl Randall 

Testimony .......................................................................................................... 27 

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

Shaheen, Hon. Jeanne 

Testimony .......................................................................................................... 2 

Small Business Owners Favor Regulations to Protect Clean Water 

Phone Poll Dated July 2014 ............................................................................ 132 

Vitter, Hon. David 

Opening statement ........................................................................................... 1 

DeShaun on LAP51NQ082 with DISTILLER

(1) 

AN EXAMINATION OF PROPOSED 

ENVIRONMENTAL REGULATION’S IMPACTS 

ON AMERICA’S SMALL BUSINESSES 

TUESDAY, MAY 19, 2015 

UNITED STATES SENATE, 

COMMITTEE ON SMALL BUSINESS

AND ENTREPRENEURSHIP, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:02 p.m., in Room 

428A, Russell Senate Office Building, Hon. David Vitter, Chairman 

of the Committee, presiding. 

Present: Senators Vitter, Fischer, Gardner, Ernst, Ayotte, Shaheen, Markey, and Booker. 

OPENING STATEMENT OF HON. DAVID VITTER, CHAIRMAN, 

AND A U.S. SENATOR FROM LOUISIANA 

Chairman VITTER. Good afternoon, everyone, and we will call the 

committee to order. 

Welcome to the Senate Committee on Small Business and Entrepreneurship’s hearing assessing the economic and regulatory impacts of the EPA and the Army Corps of Engineers’ proposed rule 

to redefine the term ‘‘waters of the United States,’’ which will be 

finalized in the near future. 

The purpose of this hearing is to examine the impact that the 

proposal will have on small businesses as well as the agencies’ 

egregious circumvention of the very regulatory process set in place 

to protect small businesses. Specifically, the EPA and the Corps 

have publicly concluded that the proposed rule will not have any 

significant impact on a substantial number of small entities, and 

they also concluded that the proposal will have no direct impacts 

on small entities. 

Now, I think this is flat out outrageous, that the administration 

would pretend that the proposal would not have a substantial and 

a direct impact on small businesses. It is so outrageous, in fact, 

that I will soon introduce a Sense of the Senate Resolution condemning the administration’s circumvention of this important process and will hold a vote on that resolution in this committee. 

Regarding the content of the rule, the sweeping language in the 

proposal represents a direct threat to private property rights. By 

expanding the types and numbers of water bodies subject to federal 

control, these agencies will further expand their authority enormously to tell home owners, small businesses, and others what 

they can do on their own property. 

DeShaun on LAP51NQ082 with DISTILLER

2 

This provides an opening for the federal government to increase 

its role yet again, and dramatically, in local land use planning and 

decisions. State and local zoning commissions will see their rules 

displaced by Washington bureaucrats who do not truly understand 

the implications of the policy changes they will be pushing forward 

with. This will lead to costly litigation and expand the ability of 

radical environmental groups to sue land owners over how they 

manage and use their own property. Additionally, the rule as proposed will have a significant negative impact on agriculture, and 

particularly smaller family farms. 

On October 1, 2014, the Office of Advocacy, an independent office 

of the SBA, sent a letter to the EPA and the Army Corps that was 

highly critical of their finding that the proposal will not have any 

significant impact on a substantial number of small entities. The 

Office of Advocacy’s role is to represent small entities in the federal 

rulemaking process. In fiscal year 2014, it achieved regulatory cost 

savings to small businesses of more than $4.8 billion. A substantial 

part of these savings—in fact, the great majority, $4.6 billion— 

arose from changes to proposed EPA regulations. 

In its October letter, Advocacy unequivocally stated, and I quote, 

‘‘Advocacy believes that EPA and the Corps have improperly certified the proposed rule under the Regulatory Flexibility Act because it would have direct significant effects on small businesses. 

Advocacy recommends that the agencies withdraw the rule and 

that the EPA conduct a Small Business Advocacy Review Panel before proceeding any further with this rulemaking,’’ close quote. As 

we know, EPA has completely ignored that input. 

Under the Regulatory Flexibility Act, when an agency finds that 

a proposed rule will have a significant economic impact on a substantial number of small entities, it must evaluate the impact, consider alternatives, and in the case of EPA, convene a Small Business Advocacy Review Panel to consider the input of the Office of 

Advocacy and the small business community. But, by certifying 

that the rule will not have that impact, which is clearly just not 

the case, the EPA and the Corps effectively shut down this process 

mandated by law. 

As Chair of the Small Business Committee, I am committed to 

ensuring that we do not allow that sort of action to proceed unchecked. That is why we are having this hearing. That is why we 

are going to have this resolution, which I will be introducing soon 

and certainly hope can gain bipartisan support in this committee 

and in the Senate overall. 

Now, I turn to our distinguished Ranking Member, Senator Shaheen, for her opening comments. 

OPENING STATEMENT OF HON. JEANNE SHAHEEN, RANKING 

MEMBER, A U.S. SENATOR FROM NEW HAMPSHIRE 

Senator SHAHEEN. Thank you, Mr. Chairman. 

Good afternoon, everyone. Welcome to today’s hearing. I want to 

begin by thanking both panels who are here to testify. 

As the Chairman noted, today, we are discussing the impact of 

environmental regulations on small business, and specifically, we 

are going to focus on the joint efforts by the Environmental Protection Agency and the Corps of Engineers to amend their definition 

DeShaun on LAP51NQ082 with DISTILLER

3 

of Waters of the United States. This term is integral to clarifying 

which bodies of water will be covered under the Clean Water Act. 

I am pleased that on our first panel, we will have Mr. Maresca, 

who is the Director of Interagency Affairs with the Office of Advocacy of the Small Business Administration, testifying. You will 

bring an important voice to this afternoon’s hearing, given the role 

the Office of Advocacy has representing the interests of small businesses in the federal rulemaking process. 

In addition, I think it is beneficial that our second panel will provide small business perspectives across a variety of diverse industries, including agriculture, home building, and outdoor recreation. 

I am disappointed that we do not have officials from the two relevant federal agencies who are charged with promulgating this rule 

joining us today. I believe that in order for there to be a meaningful and constructive conversation about the proposed rule’s impact 

on small businesses, we need to have all parties who are part of 

this rulemaking process participating in the discussion. 

I hope that today’s hearing is not about attacking the Clean 

Water Act or obstructing the efforts of the federal government to 

make regulatory decisions. This hearing should focus on whether 

the agencies responsible for promulgating this rule, the Environmental Protection Agency and the U.S. Army Corps of Engineers, 

complied with their statutory requirements to ensure that small 

businesses are considered in the rulemaking process. 

As we all know, the EPA and the Corps of Engineers determined 

that the rule would not have a significant impact on small businesses, and I am disappointed that they are not here to answer 

questions and tell us how they arrived at their conclusions. 

It is my sincere hope that moving forward this Committee can 

work together in a bipartisan manner to effectively communicate 

the interests of small businesses with federal agencies charged 

with crafting federal regulations. 

So, thank you, Mr. Chairman, and I look forward to hearing from 

today’s witnesses. 

Chairman VITTER. Thank you very much, Senator Shaheen. 

And, just for the record, let me point out that we would have 

welcomed the EPA and the Corps to be here, and it is my understanding that the Minority staff reached out to them about that 

and were basically told that they were not going to be coming. So, 

that underscores, I think, the frustration of many of us with their 

decision and with the tone and the attitude they have taken in 

making this certification, which I think—I am just speaking for 

myself—is just flat out contrary to a whole, whole lot of evidence. 

Okay. At this point, I would like to introduce our first witness, 

Charles Maresca, Director of Interagency Affairs at the Small Business Administration’s Office of Advocacy. Mr. Maresca will be the 

lone witness on the federal panel because of what I just said. He 

leads Advocacy’s efforts to monitor federal agencies’ compliance 

with the Regulatory Flexibility Act, and, of course, that is what we 

are talking about with regard to this proposed waters of the United 

States rule today. 

Welcome, Mr. Maresca. 

DeShaun on LAP51NQ082 with DISTILLER

4 

STATEMENT OF CHARLES MARESCA, DIRECTOR OF INTERAGENCY AFFAIRS, OFFICE OF ADVOCACY, U.S. SMALL BUSINESS ADMINISTRATION 

Mr. MARESCA. Thank you, Chairman Vitter, Ranking Member 

Shaheen, members of the committee. I am honored to be here this 

afternoon to present testimony to you on behalf of the Office of Advocacy of the U.S. Small Business Administration regarding the 

Environmental Protection Agency and the Army Corps of Engineers’ proposed rule on the definition of waters of the United 

States under the Clean Water Act. 

Advocacy is an independent office within the SBA that speaks on 

behalf of the small business community before federal agencies, 

Congress, and the White House. The views in my testimony do not 

necessarily reflect the views of the administration or the SBA and 

this statement has not been circulated to the Office of Management 

and Budget for clearance. 

And, I ask that my complete testimony be entered into the 

record. It includes a detailed background on Advocacy’s work with 

this proposed rule, but I will just summarize my thoughts in these 

remarks. 

Chairman VITTER. Without objection, that will be entered into 

the record. 

Mr. MARESCA. As Director of Interagency Affairs in the SBA Office of Advocacy, I manage a team of attorneys that works with the 

federal government agencies during the rulemaking process to reduce the regulatory burdens on small businesses and oversee the 

requirements of the Regulatory Flexibility Act. The RFA requires 

federal agencies to consider the effects of their proposed rules on 

small businesses and other small entities, including small government jurisdictions and small nonprofits. 

The Clean Water Act was enacted in 1972 to restore and maintain the integrity of the nation’s waters. The Act requires a permit 

in order to discharge pollutants, dredged, or fill materials into any 

body of water deemed to be a water of the United States. The 

courts have left much uncertainty regarding what constitutes a 

water of the United States. This uncertainty makes it difficult for 

small entities to know which waters are subject to Clean Water Act 

jurisdiction and permitting. 

To address this uncertainty, the EPA and the Corps have proposed a rule which would revise the regulatory definition of waters 

of the United States and would apply to all sections of the Clean 

Water Act. Advocacy has been engaged with EPA, the Corps, and 

small entities on this issue from its inception, including holding 

roundtable discussions in Washington, D.C., and Los Angeles, California, in July and August of 2014. In addition, the Office participated in two small entity meetings held by EPA and the Corps in 

2011 and 2014. 

Advocacy has met with and spoken to numerous individuals, 

small entities concerned about the effects of this rule over the last 

four years. These small entities represent many different industries, including but not limited to agriculture, real estate, home 

builders, cattlemen, farmers, and the mining industry. Feedback 

from these small entities has remained consistent. Small businesses believe that the rule as proposed by EPA and the Corps is 

DeShaun on LAP51NQ082 with DISTILLER

5 

an expansion of jurisdiction and will increase costs to small businesses. 

On October 1, 2014, the Office of Advocacy sent a letter to EPA 

and the Corps expressing our concerns with their RFA compliance. 

Advocacy believes, first, the rule will impose direct costs on small 

businesses. Second, these costs will have a significant economic impact on those small businesses. And, third, the agencies incorrectly 

certified the rule and should have conducted a SBREFA panel. 

In conclusion, Advocacy and small businesses are concerned 

about the rule as proposed. The rule will have a direct and potential costly impact on small businesses. Advocacy has advised the 

agencies to withdraw the rule and conduct the SBREFA panel prior 

to promulgating any final rule on this issue. 

I would be happy to answer any questions you might have. 

Thank you. 

[The prepared statement of Mr. Maresca follows:] 

DeShaun on LAP51NQ082 with DISTILLER

6 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 1 here 99734.001
7 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 2 here 99734.002
8 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 3 here 99734.003
9 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 4 here 99734.004
10 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 5 here 99734.005
11 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 6 here 99734.006
12 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 7 here 99734.007
13 

Chairman VITTER. Thank you very much, and we will start those 

questions. 

Mr. Maresca, you stated in your testimony that EPA and the 

Corps should have certified that the proposal will have that significant economic impact on a substantial number of small business 

entities and, therefore, they should have convened an SBAR panel. 

Can you please explain how that panel process helps protect the interests of small businesses? 

Mr. MARESCA. Yes, Senator. The requirement of a panel that is 

in the RFA for EPA requires that they convene a meeting with 

small entity representatives. The panel consists of—would consist 

of EPA, Advocacy, and OMB. We would hear—they would present 

to those small entities any data that they had collected in support 

of the rule that they were proposing and they would suggest to the 

small entity representatives a number of regulatory alternatives, 

including a preferred option, in most cases, and the small entity 

representatives would have been given an opportunity to comment 

on all of those alternatives and to suggest ways that the rule could 

be—could mitigate the costs. 

Chairman VITTER. So, just to clarify and make sure I understand, it is significant in at least two senses. Number one, the 

agencies would have to present their factual evidence and basis for 

this rulemaking, proposed rulemaking. And, number two, they 

would have to present alternatives, correct? 

Mr. MARESCA. That is correct. That is the point of the SBREFA 

panels. 

Chairman VITTER. Okay. Your testimony also states that the 

agencies incorrectly used a standard from 1986, a standard that 

has been abrogated by the U.S. Supreme Court, to find that the 

rule will not expand the jurisdiction of the Clean Water Act and, 

therefore, not affect small businesses. However, in their economic 

analysis, the EPA and the Corps used the more recent and correct 

standard to show that the rule could expand the jurisdiction of the 

Clean Water Act. It seems like they are trying to have it both ways 

and use whatever standard is convenient at the time. Can you provide some additional detail on how the use of an incorrect baseline 

obscures what the real impacts of their proposal might be? 

Mr. MARESCA. Well, we believe that the impact of the rule is the 

change in practices that small businesses would have to begin. The 

way that agencies measure the costs of their rules in any regulatory analysis is governed by—generally governed by OMB Circular A–4, which tells them to use the world as it is, and the world 

as it is right now for waters of the United States is the EPA guidance from 2008. And, this rule would—the rule, as proposed, would 

expand the jurisdiction as compared to that guidance. 

Chairman VITTER. Okay. As we have discussed, the EPA and the 

Corps through this fraudulent certification are avoiding conducting 

this RFA analysis, including holding the SBAR panel. In your expert opinion, could the underlying RFA law be modified or 

strengthened to prevent this in the future? 

Mr. MARESCA. Senator, the problem with this rule as proposed 

is the misapplication of case law and the choice—the incorrect 

choice of a baseline. I am not sure how to—how we would amend 

the RFA to approach that, those problems. However, we do think 

DeShaun on LAP51NQ082 with DISTILLER

14 

that the RFA could be improved in the area of indirect effects and 

we would be happy to work with you on that. 

Chairman VITTER. Could this improper action under federal law 

be the basis for future litigation challenging the rule? 

Mr. MARESCA. Certain parts of the RFA are judicially reviewable, 

and an incorrect certification is one of the—could be a basis for a 

complaint in federal court. 

Chairman VITTER. Okay. Thank you. I will turn to Senator Shaheen. 

Senator SHAHEEN. Thank you, Mr. Chairman. 

I just wanted to clarify that it is my understanding, as well, that 

we asked both the EPA and the Army Corps to be present at today’s hearing and that they were not able to do so, they said, for 

scheduling reasons. So I wonder, Mr. Maresca, if you could talk 

about why neither of those agencies seems to feel—or said that 

there was no need to appoint a Small Business Advocacy Review 

Panel. What was the reasoning for that? 

Mr. MARESCA. The reasoning, as stated, is that the costs that are 

imposed by the rule are indirect and there is case law on the point 

that whether an agency needs to consider the indirect effects of a 

rule. We believe that the case law was misapplied. They also based 

their certification on the choice—on whether there was an expansion of jurisdiction or not. As compared with the 1986 rule, there 

is not. As compared with the 2008 guidance, there is. 

Senator SHAHEEN. Right. I understand that, and I know that you 

pointed that out in the letter. What was the response when you did 

that? Because it would seem that it might be prudent to err on the 

side of, given the discrepancies in the statutes, to err on the side 

of making sure that they had responded to any potential small 

business concerns. 

Mr. MARESCA. Senator, we would agree with that. In their own 

economic analysis, EPA points out that there are, in fact, costs to 

this rule. 

Senator SHAHEEN. As I have talked to representatives from small 

business, I have heard from some people who feel like there will 

be a significant impact because of this proposed rule. There are 

others who feel like they support it. There are others who feel like 

it does not really make any difference. So, I am sure you heard 

those different perspectives, and can you explain how Advocacy 

weighted those diverse perspectives as you were trying to make 

recommendations and consider the position? 

Mr. MARESCA. Senator, the statute requires us to do outreach to 

small businesses, and we have done an extraordinary amount of 

outreach on this rule, and we have heard from many, many small 

businesses in every industry that we have talked to that there are 

costs to this rule. We have examined EPA’s numbers as they are 

in their own economic analysis and we conclude, along with EPA, 

that there are costs. We do not know at this moment how expensive those costs are. We do know that, according to EPA’s own figures, the cost for a Section 404 permitting, for example, will increase by $50 million, and we think that is at least $50 million, 

and there are many, many other costs that have not been counted. 

DeShaun on LAP51NQ082 with DISTILLER

15 

Senator SHAHEEN. So, when you were looking at the determination of impact, it was the cost issue that you were weighing as opposed to anything else that might be affecting small businesses? 

Mr. MARESCA. That is typically what we look at, is the cost. The 

RFA does require us to look at ways to mitigate, to examine with 

the agencies ways to mitigate the cost of the rule in order to 

achieve the same regulatory objective. 

Senator SHAHEEN. And, did you do that? Did you—when you 

brought those concerns about cost to the attention of the agencies, 

what was their response and did you have any discussions about 

potential mitigation to address those? 

Mr. MARESCA. Senator, in the several meetings that we have had 

with EPA, with the small entity representatives, with small business stakeholders, that has been brought up. I would suggest the 

response of EPA is this proposed rule. But, there has been—there 

is no—if there had been a SBREFA panel, there would have been 

a presentation of alternatives and there could have been a consideration of whether those alternatives—which of those alternatives 

would mitigate the cost to small entities the best. 

Senator SHAHEEN. So, basically, they said, we do not need to appoint a panel because we do not think there are any costs involved. 

Mr. MARESCA. That is correct. 

Senator SHAHEEN. Okay. Thank you, Mr. Chairman. 

Chairman VITTER. As we go to Senator Ernst, I just want to clarify something. A couple of times, Senator Shaheen asked about 

their response. In terms of your written letter strongly objecting to 

their certification, has there been any direct written response? 

Mr. MARESCA. No, Senator, there has not been a written response. That is not unusual. The statute requires that EPA respond in writing to our written comments, so we do expect there 

will be a written response, but there is not one at this point. 

Chairman VITTER. There has not been to date? 

Mr. MARESCA. No. 

Chairman VITTER. Is there any assurance that they are going to 

do that, even before they come up with this proposed rule? 

Mr. MARESCA. It would—as I say, it would be unusual for an 

agency to respond in writing to our comment letters before they 

issue a final rule. 

Chairman VITTER. Okay. Senator Ernst. 

Senator ERNST. Thank you, Mr. Chair, and thank you, Mr. 

Maresca, for being here today. 

It is greatly concerning. I wish we would have had the Corps 

members and the EPA representatives here. Very early this year, 

I sent a letter to the EPA Administrator and asked her to come to 

Iowa. I would love to have her in Iowa with some of her leadership 

just to show her the impact on small businesses, manufacturers 

and members of our agriculture community, when it comes to 

waters of the United States. I have yet to hear back from the EPA, 

which I thought was—at least they could have responded to me. So, 

very disappointed that they are not able to join us and give their 

perspective on this particular rule. 

I am also concerned—you mentioned that the EPA, because they 

are not direct costs, just maybe indirect costs, they did not feel the 

need to look at this any further. That is deeply troubling to me beDeShaun on LAP51NQ082 with DISTILLER

16 

cause there are so many times that we talk through the implications of legislation or rules and regulations and what are those secondary and tertiary effects that will hurt our small businesses. So, 

disappointed to hear that. 

But, in addition to the work here in the Small Business Committee, I also sit on Homeland Security and Governmental Affairs, 

and one of the subcommittees that I sit on also focuses on regulatory reform. And, through that particular subcommittee we have 

done a few hearings on the regulatory climate that we have right 

now, and one of the recurring themes I have heard about and we 

have discussed seems to be the trend of these federal agencies 

going around the necessary and appropriate economic and cost 

analysis—cost/benefit analysis. 

And, as an independent office within the SBA, can you speak a 

little more about these issues as it pertains to the federal agencies 

and them trying to circumvent what I see as a specified process. 

Can you speak to that? 

Mr. MARESCA. Certainly, Senator. In general, we find the agencies are very good at complying with the Regulatory Flexibility Act. 

We have worked with the agencies to train them in how to do that 

since 2003. And, in fact, EPA is one of our model agencies. So, 

when they make these kinds of judgments, it seems it is unusual. 

But, when they do, there are costs involved, and the RFA requires 

that they, in this case, convene a SBREFA panel. 

Senator ERNST. Very good. Do you think that in this case, they 

did take any public comment into judgment? Did they look at 

those, do you believe? Have they indicated any of that to you? 

Mr. MARESCA. Well, they have—they also convened several 

roundtables and participated in stakeholder events. The outcome, 

again, is this rule that does have significant economic impact on 

small business. 

Senator ERNST. Very good. Thank you. 

Thank you, Mr. Chair. 

Chairman VITTER. Sure. Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much. 

Welcome, sir. 

Mr. MARESCA. Thank you. 

Senator MARKEY. Thank you for being here. Clean water is important to everyone. Eighty percent of small business owners, a 

clear majority, favor the rules, clarifications in wetlands protection 

set forth in the Clean Water rule, and EPA and Army Corps of Engineers have spent years engaging in a transparent rulemaking 

process. The agencies have met with stakeholder small businesses, 

received over one million comments, held over 400 outreach meetings, used important time and resources, and above all, important 

taxpayer dollars, and are now just weeks away from producing a 

final Clean Water rule that will protect our nation’s vulnerable waterways and drinking water for 117 million Americans. 

But, what you are saying is the agency should put the brakes on 

the implementation of this economically critical and scientifically 

rigorous rule before the public has even had a chance to see the 

finished product. A decision like that would disrupt and prolong 

the rulemaking and forces the agencies to go back and solicit input 

from stakeholders they have already consulted, consider factors 

DeShaun on LAP51NQ082 with DISTILLER

17 

they have already considered, and then propose the rule all over 

again. 

Has your office considered the impact on small businesses of delaying the rulemaking and prolonging the uncertainty for small 

businesses about what will be regulated under the Clean Water 

Act? 

Mr. MARESCA. Yes, Senator. Those are concerns of our office. The 

main concern that we have is compliance with the Regulatory 

Flexibility Act. Every rule that EPA produces has to comply with 

the RFA, and in this instance, it did not—they did not comply with 

the RFA. And, so we—and, so, our job at Advocacy is to speak for 

small businesses in that instance. 

Senator MARKEY. Well, in the Environment and Public Works 

Committee, we heard testimony from the New Belgium Brewery on 

behalf of the businesses around the country that rely on clean 

water for the success of their business. How does the Office of Advocacy take the needs of those companies into effect? 

Mr. MARESCA. Senator, we take the needs of every small business that we possibly can into account. Again, our statutory obligation is to get federal agencies to comply with the Regulatory Flexibility Act, and in this instance, EPA should have convened a 

SBREFA panel. 

Senator MARKEY. Well, the EPA has estimated that waste from 

mountaintop removal coal mining has buried between 1,200 and 

2,000 miles of Appalachian streams. This mining practice has in 

some communities been linked to contamination of water supplies, 

endangered wildlife, and threatened public health, all so that much 

of the coal produced from the Appalachian region can be exported 

to other countries in the world to increase profits for the coal companies. 

By opposing the Clean Water rule, coal companies are continuing 

their assault on the administration’s actions to protect the public 

health and the environment from mountaintop removal mining. 

Fossil fuel companies have also threatened legal challenges to the 

rule before it has even been issued. 

Will you please tell the committee the groups and associations 

that your office met with or which groups encouraged the Office of 

Advocacy to submit your comments about the Clean Water rule. 

Mr. MARESCA. Senator, we met with small businesses in every 

industry that we could find. They all said that there were going to 

be costs to this rule. 

Senator MARKEY. Will you submit to the committee the companies that you met with, just so that we can have an understanding 

of who it was that was seeking to lobby you on this issue? 

Mr. MARESCA. We would be happy to do that. 

Senator MARKEY. Okay. That would be very helpful. 

A delay in the Clean Water rule would provide confusion, not 

clarity, for small businesses and add to the delay of important infrastructure projects and will create jobs—that will create jobs and 

grow our economy. What would you say to an unemployed iron 

worker, laborer, or American driver that just crossed a near-crumbling bridge or pothole about the delay in the final Clean Water 

rule? 

DeShaun on LAP51NQ082 with DISTILLER

18 

Mr. MARESCA. Senator, the point of the Regulatory Flexibility 

Act is to create an environment for small businesses to thrive and 

grow and provide more jobs, ultimately, and our job is to ensure 

that the federal agencies comply with the requirements of the statute. 

Senator MARKEY. How many public meetings should an agency 

have to hold on a proposed rule, in your opinion? 

Mr. MARESCA. Senator, I would say that probably varies with the 

impact of the rule. But, in this instance, EPA should have convened a SBREFA panel. 

Senator MARKEY. Is 400 outreach meetings insufficient to solicit 

input on a proposed rule? 

Mr. MARESCA. Senator, in none of those outreach meetings, to my 

knowledge, did EPA present regulatory alternatives or preferred 

options. In none of them did they present the data on which they 

were basing the rule. 

Senator MARKEY. And, finally, are you aware that OMB reviewed 

the proposed rule and made the determination that the proposed 

rule would not have significant impact on small businesses? Are 

you aware of that? 

Mr. MARESCA. Senator, it is our statutory obligation to speak on 

behalf of small businesses when it comes to issues under the Regulatory Flexibility Act. In our opinion, EPA should have convened a 

SBREFA panel because this rule will have impacts. 

Senator MARKEY. I think that we should let the EPA do its job. 

I think delaying the Clean Water rules makes no sense. Small 

business owners need clarity, not confusion. That is what your recommendations are going to create and we are just going to repeat 

the same process and, I think, come to the same conclusions. 

Thank you, Mr. Chairman. 

Chairman VITTER. Thank you. 

Senator SHAHEEN. Mr. Chairman, can I just ask that when we 

receive the list from the Office of Advocacy about the businesses 

you met with, that that be shared with all of the members of the 

committee? 

Chairman VITTER. Certainly. Of course. Without objection. 

Senator SHAHEEN. Thank you. 

Chairman VITTER. And, now we will go to Senator Gardner. 

Senator GARDNER. Thank you, Mr. Chairman. Thank you for 

holding this hearing, and to Ranking Member Shaheen, thank you, 

as well, and to Mr. Maresca, thank you for being here. 

I, unfortunately, came in later to the discussion on waters of the 

United States, but I do want to stress one of the challenges that 

we have in Colorado. Of course, we are unique among the states. 

We are the only state in the country that distributes our water 

rights the way we do, through a court system. We are entirely 

unique in that in the lower 48 states, all of the water flows out of 

Colorado. No water flows into Colorado. 

In conversations with the EPA Administrator, Gina McCarthy, at 

a hearing last year in the Energy and Commerce Committee, I 

asked point blank if she was familiar with Colorado water law and 

her response back was she is not familiar with Colorado water law. 

And, I think the challenges—just one of the many challenges that 

we face, that this rule would apply to rivers that are intermittent 

DeShaun on LAP51NQ082 with DISTILLER

19 

flow. Two-thirds of Colorado waterways are intermittent flow, and 

yet waters of the United States would still affect and impact every 

single one of them, even though they do not have water in them 

year-round. 

In meetings with Colorado water districts, whether it is Northern 

Colorado Water Conservancy Districts, whether it is Denver Water, 

Colorado Springs Utilities, or the Colorado Farm Bureau, every one 

of them is concerned about the federalization of every molecule of 

water in the State of Colorado, and so I think you are right to 

make sure and demand that these hearings proceed in terms of understanding all that the waters of the United States rule would do 

to small businesses, particularly in light of the way a state like 

Colorado manages its water rights. 

I wanted to shift focus a little bit to the Endangered Species Act. 

A few years ago, the Small Business Administration’s Office of Advocacy submitted comments to the Fish and Wildlife Service on a 

proposed rule on designation of critical habitat for the New Mexico 

jumping mouse. The Office of Advocacy expressed several concerns 

about listing the mouse under the Endangered Species Act and 

stated that the designation would impose direct costs on the nation’s small businesses. 

As we have seen in Colorado, we have got the Gunnison and 

greater sage grouse. The Gunnison was just listed. I believe there 

is litigation coming forward from Governor Hickenlooper in the 

state. We have challenges with the lesser prairie chicken and, of 

course, the Preble jumping mouse. 

Just yesterday, the administration announced proposed updates 

to the implementation of the Endangered Species Act, which, it is 

my understanding, are intended to give states a greater voice in 

the listing determinations. How can the Office of Advocacy further 

insert themselves into this type of policy making, since small businesses are our nation’s job creators? 

Mr. MARESCA. Well, with regard—thank you, Senator. With regard to the Endangered Species Act, we believe that Fish and Wildlife Service could do a better job in considering the impacts, not of 

the listing, necessarily, but of the critical habitat designations, and 

we have been working with that agency over many, many different 

CHDs. 

Senator GARDNER. So, how would you improve the critical habitat designation? Does that mean taking into account, for instance, 

in the greater sage grouse, the 11 states, would that suggestion 

say, take a look at the large land area that would be involved and 

then doing an economic analysis of the impact that land area would 

have for critical habitat? 

Mr. MARESCA. We believe that Fish and Wildlife could take better account of the economic analysis. They have broad authority to 

exclude certain parts of an initial CHD, and we have been working 

with the agency on that. 

Senator GARDNER. And, your concern about critical habitat, of 

course, is because that land then is taken out of either production 

value or recreational interest activities. Is that why, primarily? 

Mr. MARESCA. That would be the impact. That would be the impact. The point of the Regulatory Flexibility Act is not to avoid the 

outcomes that another statute might require, but that whatever 

DeShaun on LAP51NQ082 with DISTILLER

20 

regulatory option an agency considers, it considered that with the 

least impact on small businesses. 

Senator GARDNER. Okay. Under the Regulatory Flexibility Act, 

do you believe that we are right now properly evaluating listings 

prior—excuse me, that we are taking actions and considering them 

properly under the RFA prior to ESD listing? 

Mr. MARESCA. Prior to the listing? 

Senator GARDNER. Yes. 

Mr. MARESCA. Uh—— 

Senator GARDNER. And how could we improve that process so 

that Fish and Wildlife Service does this—— 

Mr. MARESCA. We believe that post-listing, prior to the critical 

habitat designation, improvements could be made. 

Senator GARDNER. What kind of improvements? 

Mr. MARESCA. Improvements in how Fish and Wildlife considers 

the economic impact and takes that into account. 

Senator GARDNER. What would that improvement—what would 

that consideration look like in how they take it into account? 

Mr. MARESCA. It would probably—it would—Senator, I believe it 

would take a combined effort by our office and Fish and Wildlife 

to come up with a system that would actually accomplish that. 

Senator GARDNER. Thank you. 

Thanks, Mr. Chairman. 

Chairman VITTER. Thank you. 

And, before we go on to our second panel, I just wanted to follow 

up on Senator Markey’s thoughts. Mr. Maresca, in the Regulatory 

Flexibility Act, is there sort of an ‘‘ends justifies the means’’ section 

that says, you know, if the rule is really, really good, we do not 

have to worry about following the law, or if we consult stakeholders 

in a different way, we do not have to worry about convening this 

sort of panel? 

Mr. MARESCA. Senator, there is no exception to the requirement 

of convening a panel, at least not without consulting with the Chief 

Counsel for Advocacy. Under a section of the RFA, it could be 

waived, but that is only under extraordinary circumstances. 

Chairman VITTER. Okay. Thank you. 

Senator Shaheen, anything else? 

Senator SHAHEEN. No further questions. 

Chairman VITTER. Great. Thank you very much, Mr. Maresca. 

We will move on to our second panel, and as the second panel 

gets seated, I will invite Senator Ernst to recognize and introduce 

Mrs. Maulsby on the second panel. 

OPENING STATEMENT OF HON. JONI ERNST, A U.S. SENATOR 

FROM IOWA 

Senator ERNST. Yes. Thank you, Mr. Chairman, very much. 

As the second panel is getting settled, I will go ahead and start 

off by thanking all of you for joining us here today. It is good to 

have you with us. 

I do appreciate your testimony and attention to this important 

widespread economic and regulatory issue. The EPA’s proposed expanded definition of waters of the United States, or as we fondly 

call it, WOTUS, will add unnecessary bureaucratic red tape for our 

producers in the agriculture and small business communities. 

DeShaun on LAP51NQ082 with DISTILLER

21 

The EPA has stated that the rule has been crafted with the intentions of creating clarity and increasing efficiency for key stakeholders. However, in reality, the proposed rule has only expanded 

confusion and uncertainty as to how far the jurisdiction of the 

Clean Water Act reaches. 

It is incredibly important that before this rule is finalized, we 

stop it from having any negative consequences on our producers 

and businesses. And, if the EPA still fails to listen to the many 

voices raising concerns, including those of many of you in this room 

today, then we should all come together and oppose this rule. 

Today, it is my great pleasure to introduce one of those voices. 

Darcy Maulsby is a fifth-generation corn and soybean farmer and 

small business owner from Lake City, Iowa. Her work, both on the 

farm and in owning a communications and marketing business, has 

given her a unique opportunity to engage local, national, and world 

leaders to promote the benefits of agriculture to our economy. Mrs. 

Maulsby has used her skills in journalism and mass communications to reach untold audiences, promoting the importance of improving production and conservation practices and life in rural 

America. 

Mrs. Maulsby, Darcy, it is always good to have a fellow Iowan 

in Washington, and thank you very much for testifying today. Your 

words are going to be very important for this panel. I will not be 

able to stay for questions, but I will submit those for the record. 

And, just so everybody knows, they did have quite an episode a 

few weeks ago with a tornado that came through Lake City, and 

so, Darcy, we appreciate the extra effort that it took for you to 

come and be with us today, so thank you very much, and thanks 

to everybody on the panel, as well. 

Thank you. 

Chairman VITTER. Thank you, Senator, and let me just round out 

the introductions. 

Randy Noel is President of Reve Incorporated, a custom home 

building company based in La Place, Louisiana. 

Elizabeth Milito is Senior Executive Counsel with the National 

Federation of Independent Business’ Small Business Legal Center 

in Washington, D.C. 

And, Benjamin Bulis is President of the American Fly Fishing 

Trade Association on Bozeman, Montana. 

Welcome to all of you. We look forward to your testimony in the 

order in which you have been introduced. Ms. Maulsby. 

STATEMENT OF DARCY DOUGHERTY MAULSBY, FIFTHGENERATION FARMER, DOUGHERTY FARM, LAKE CITY, IA 

Mrs. MAULSBY. Well, good afternoon. I am Darcy Maulsby, a 

fifth-generation farmer and small business owner from Lake City. 

Let me begin by thanking you, Chairman Vitter, Ranking Member 

Shaheen, and members of the committee for allowing me the opportunity to share my story with you today. I especially want to thank 

my home state Senator for inviting me to testify. Thank you, Senator Ernst—even though she has left the room—for this opportunity and the warm introduction. 

Our farm is located in west central Iowa. This is a beautiful area 

where the fields are mainly flat or gently rolling and are filled with 

DeShaun on LAP51NQ082 with DISTILLER

22 

rich black soil. While this soil is extremely productive, it also needs 

proper management and drainage to protect the health of our corn 

and our soybean crops. 

My family and farmers all across Iowa are investing in conservation practices that prevent nutrient runoff and safeguard water 

quality. Ever since my ancestors settled in Calhoun County in the 

1880s, my family has adopted a variety of conservation practices to 

protect our precious natural resources. We have installed grass waterways to slow the flow of water and keep soil in place. We also 

use conservation tillage to leave cornstalks and soybean stubble in 

the fields over the winter to protect soil from water and wind erosion and to control surface runoff. 

We have taken some big steps to implement conservation efforts, 

but one thing we cannot control is Mother Nature. Just over a 

week ago, on Mother’s Day, an EF–1 tornado ripped through our 

area. Less than an hour later, a second storm blasted our farm 

with hail and dumped more than an inch-and-a-half of rain in a 

matter of minutes. This created some fairly large ponds in some of 

our fields, since the heavy clay soils just could not drain that water 

fast enough. The ponds are temporary, though, and they disappeared in a few days. 

Across my area and much of Iowa, it is not uncommon for puddles and ponds to appear after a heavy rain in areas that are otherwise dry most of the year. Expanding EPA’s regulatory authority 

under the Clean Water Act to include these and similar areas will 

have many negative consequences for my farm business. Not only 

will this rule affect my operation personally, but it will have dramatic and far-reaching potential and costly economic implications 

on farmers and ranchers all across the United States. 

One of the biggest problems with this rule is the uncertainty that 

it creates. I look around my family farm and I wonder what areas 

would be under EPA’s jurisdiction. There are many features on 

farmland that contain or carry water only when it rains. Farmers 

and ranchers consider these areas to be land, not water that could 

be regulated by the EPA. If this agency can regulate every body of 

water on my farm, including those that are dry most of the time, 

then there are effectively no limits to the agency’s regulatory reach. 

The regulation of these areas means that any activity, including 

everyday farming activities, could be a violation of the Clean Water 

Act, triggering heavy penalties, criminal fines, and possibly resulting in jail time. Not only would we be subject to enforcement from 

the EPA and the Corps, but also civil lawsuits from those who do 

not understand agriculture and belong to organizations who are opposed to our way of life. 

I am also concerned about how the rule will hinder the ability 

to keep our farm competitive, profitable, and sustainable. Tens of 

thousands of dollars to obtain permits along with fees for both lawyers and technical consultants is beyond the means of most farmers 

and ranchers and creates an undue burden for most farms, which 

are largely family owned operations. These permits may take 

months to more than two years to obtain. Having to wait to obtain 

a permit would hinder our ability to operate and do what we know 

is best for our land. As a result, the proposed rule puts EPA into 

DeShaun on LAP51NQ082 with DISTILLER

23 

the business of regulating whether, when, and how a farmer’s crops 

may be grown and protected. 

Perhaps the largest cost of this rule is not being allowed to apply 

crop nutrients and crop protection products in and around these 

EPA-controlled areas. We have always worked to be good stewards 

of our land and want to prepare now for a sustainable future for 

our farm. If we cannot do the right things for our land and our 

crops when the job needs to be done, farming and ranching will be 

much more costly and more difficult. 

I am also concerned about how permitting delays would hold up 

conservation efforts on our farm and farms nationwide. We have already experienced this on my farm when we applied for a permit 

for a drainage improvement. In this case, the permitting process 

was not completed in a timely manner due to delays from an agency. This cost us valuable time and hindered our ability to enhance 

our land, and it complicated the process of completing routine field 

work. 

We are continually implementing voluntary conservation efforts 

using our own time, energy, and money. The only thing that is 

clear and certain is that this rule will make it more difficult for 

farm families like mine to make changes in the land that will benefit the environment. Working with farmers collaboratively is a 

productive way to improve water quality, not more regulations. 

Ultimately, this rule will have a negative impact on the productivity and profitability of small farming businesses all across the 

country, those one percent of Americans who grow the food, fuel, 

and fiber for this country and the world. 

As a fifth-generation farmer, I truly care about the legacy my 

family will leave behind. I urge you to think about the legacy that 

will be left behind if this harmful rule is implemented. This rule 

should be repealed in full to protect the livelihood and way of life 

for my family and farm families all across this great land. Thank 

you. 

[The prepared statement of Mrs. Maulsby follows:] 

DeShaun on LAP51NQ082 with DISTILLER

24 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 8 here 99734.008
25 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 9 here 99734.009
26 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 10 here 99734.010
27 

Chairman VITTER. Thank you very much, Mrs. Maulsby. 

And now, we will hear from Mr. Randy Noel. Welcome. 

STATEMENT OF KARL RANDALL ‘‘RANDY’’ NOEL, PRESIDENT, 

REVE INCORPORATED, LA PLACE, LOUISIANA, AND THIRD 

VICE CHAIRMAN, NATIONAL ASSOCIATION OF HOME BUILDERS 

Mr. NOEL. Thank you, Chairman Vitter and Ranking Member 

Shaheen, for the opportunity to address you today. I am a home 

builder in La Place, Louisiana, which is just west of New Orleans, 

and I am also the NAHB, the National Association of Home Builders, 2015 Third Vice Chairman, and I represent about 140,000 people. 

Home building is one of the most regulated activities in the country, and as a small business owner, I can tell you from 30 years 

of home building experience what it will take to make a good rule. 

It needs to be consistent for all the citizens. It needs to be predictable to assure compliance. And, it needs to be timely to serve our 

citizens efficiently. Most important, it needs to focus on protecting 

true wetlands and streams. 

The proposed rule does none of that. For decades, landowners 

and regulators alike have been frustrated by confusion over the 

definition of waters of the United States. When EPA and the Army 

Corps of Engineers proposed this rule, we were actually optimistic 

that it would finally provide clarity and certainty. Unfortunately, 

the proposed rule falls far short of that. In a word, it is a mess. 

Instead of clarity, it provides broader definitions of existing regulatory categories, such as tributaries, and it seeks to regulate new 

areas that are not currently federally regulated, such as adjacent 

non-wetlands, riparian areas, flood plains, and other waters. It appears that the agencies have intentionally created overly broad 

terms so that they would have the authority to interpret them any 

way they would like. 

This rule is so extreme that the federal government would actually regulate roadside ditches, or water features that may flow only 

after a heavy rainfall. This rule would leave me playing a guessing 

game of whether my land requires a permit or not. That does not 

work. 

I am a small business owner. I need to know the rules, not have 

to guess at them. And, because of the vague definitions, builders 

would face new, costly delays just waiting for the agencies to determine if a roadside ditch is a water of the United States. 

My business has already been a victim of a costly permitting system. I have been forced to walk away from building projects due 

to excessive permitting and mitigation costs. The only winners with 

the proposed rule would be lawyers, because this rule would certainly lead to increased litigation. 

I think it is important to note that this proposed rule also destroys a key component of the Clean Water Act. The Act intended 

to create a partnership between the federal agencies and state governments to protect our nation’s water resources. Congress correctly recognized that there is a point where federal authority ends 

and state authority begins. The agencies’ solution is to federalize 

nearly every water feature. 

DeShaun on LAP51NQ082 with DISTILLER

28 

States have effectively regulated their own waters and wetlands 

for years. My home State of Louisiana is a perfect example of a 

state that has gone to great lengths in order to protect its waters. 

Louisiana already has multiple laws on the books designed to protect our state water resources. 

The agencies also failed to consider the rule’s impact on small 

businesses by ignoring, as you pointed out earlier, the Regulatory 

Flexibility Act. Since the agencies failed to convene a small business panel, it is clear that they are not interested in hearing from 

small businesses like mine. 

Unfortunately, the EPA completely ignores RFA requirements all 

the time. This is not something unique to this particular rule. In 

the 19 years since the small business panel requirement has existed, the EPA has convened approximately 47 panels. Just last 

year, the EPA reviewed 51 significant rules. It defies belief that in 

one year, EPA reviewed more regulations than the total number of 

SBREFA panels held over 19 years. This illustrates how reluctant 

some agencies are to comply with the law. 

And, the agencies’ economic analysis of the proposed rule is so 

full of errors that one noted economist said the study was virtually 

meaningless. That should give us all pause. 

I called this a mess, and it is, but we can start to fix the mess. 

The EPA should withdraw the economic analysis and prepare a 

more thorough and accurate analysis. The RFA’s legal requirements should be followed. And, any final rule should provide easily 

understood definitions and preserve the partnership between all 

levels of government. 

Let us get the agencies to withdraw the rule. Fix this mess. Provide the clarity we all need on what constitutes a water of the 

United States. 

Thank you again for the opportunity to testify. 

[The prepared statement of Mr. Noel follows:] 

DeShaun on LAP51NQ082 with DISTILLER

29 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 11 here 99734.011
30 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 12 here 99734.012
31 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 13 here 99734.013
32 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 14 here 99734.014
33 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 15 here 99734.015
34 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 16 here 99734.016
35 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 17 here 99734.017
36 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 18 here 99734.018
37 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 19 here 99734.019
38 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 20 here 99734.020
39 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 21 here 99734.021
40 

Chairman VITTER. Thank you very much, Mr. Noel. 

Now, we will hear from Elizabeth Milito with NFIB. Welcome. 

STATEMENT OF ELIZABETH MILITO, SENIOR EXECUTIVE 

COUNSEL, NATIONAL FEDERATION OF INDEPENDENT BUSINESS 

Ms. MILITO. Thank you very much, Chairman Vitter and Ranking Member Shaheen, for inviting me to participate in the hearing 

today. 

The National Federation of Independent Business is very appreciative of the committee’s interest in this rule and your examination of what we believe was a failure by two federal agencies to 

comply with the Regulatory Flexibility Act. I would like to commend the work that SBA’s Office of Advocacy has done on this rule 

and I would also like to especially thank Mrs. Maulsby and Mr. 

Noel for coming here and making the trip here to Washington to 

testify today. 

The agencies have proposed to change the Clean Water Act’s definition for waters of the United States. Though traditionally limited to navigable waters and adjacent waters, this new proposal 

would classify land as waters of the United States if, at any point 

during the year, they have any water overflow. The new rule would 

bring seasonal streams, ponds, ditches, depressions in fields, and 

large puddles into the Clean Water Act’s jurisdiction. 

What does this mean for a small business owner? Well, if EPA 

and the Army Corps assert jurisdiction over your land, it will be 

essentially impossible, or at least tremendously expensive, to do 

anything with your land. This means you will not be allowed to 

alter land formations, which prevents land owners from digging or 

excavating on their properties or even laying gravel. 

While it is possible to obtain a special permit to begin using portions of land covered by the Clean Water Act, these permits are extremely expensive. Clean Water Act permits can cost tens of thousands of dollars, if not more. A major U.S. Supreme Court decision 

from 2006 cited the average cost at $270,000. And, there are inevitably long waits for permit processing with no guarantee that your 

permit will be approved. But, proceeding without a permit could be 

ruinous. The penalties for violations of the Clean Water Act can be 

up to $37,500 per day. 

NFIB and other small business stakeholders firmly believe that 

the agencies did not adequately consider the impact of this proposed rule on small businesses and, therefore, failed to meet their 

legal obligations under the RFA. 

EPA and the Corps is alleging that since there is a simple definition change, there are no major costs directly imposed on small 

businesses. But, as I have already noted, there are certainly costs 

directly imposed on small businesses through the permit process 

and other compliance requirements. In addition, the proposed rule 

makes it clear that many waters will need to be determined on a 

case-by-case basis, therefore providing little, if any, additional certainty. While multinational corporations with tremendous capital 

resources can obviously afford the permitting costs, most small 

businesses cannot. Usually, their only option is to swallow their 

losses and forego any development plans. 

DeShaun on LAP51NQ082 with DISTILLER

41 

In addition to the direct economic consequences on small businesses, the proposed rule will also have indirect adverse impacts on 

firms. Even in the absence of an affirmative assertion of Clean 

Water Act jurisdiction, landowners are going to be more hesitant 

to engage in development projects or make other economically beneficial uses of their property if the proposed rule is allowed. 

Landowners are aware that federal agencies have taken an aggressive posture in making jurisdictional assertions in recent years. 

NFIB already receives questions and concerns from small business 

owners who are worried about whether or not the agencies have jurisdiction over their land, and we expect to hear from many more 

concerned individuals if the rule is finalized. Indeed, under the proposed rule, a landowner may have legitimate cause for concern if 

at any point during the year, as Mrs. Maulsby indicated, any 

amount of water rests or flows over a property. 

And, contrary to the agency’s assertions, the proposed rule will 

do little or nothing to make Clean Water Act jurisdiction clearer or 

more certain for property owners. The reality is that landowners 

will have to seek out experts and legal counsel, which gets costly 

very quickly, before developing on any segment of land that occasionally has water overflow. And, the only way to have real clarity 

is to seek a formal jurisdictional determination from the agencies, 

which is going to cost even more money and lead to even more 

delays, delays which might cause a bank to pull financing on a 

project. 

In short, this proposed rule will be a boon for environmental consultants, and potentially lawyers, too, but it is going to be a bust 

for small businesses. 

In closing, I would like to underscore NFIB’s frustration with the 

agencies’ disregard for their statutory obligation under the RFA. 

We believe the agencies should acknowledge that the proposed rule 

will have a significant economic impact on a substantial number of 

small businesses. Withdraw the proposed rule and propose a new 

rule only after they have performed an initial Regulatory Flexibility Act analysis and convened a Small Business Advocacy Review Panel. 

Thank you again for the opportunity today. We remain eager to 

work with members of the committee on this issue. Thank you. 

[The prepared statement of Ms. Milito follows:] 

DeShaun on LAP51NQ082 with DISTILLER

42 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 22 here 99734.022
43 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 23 here 99734.023
44 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 24 here 99734.024
45 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 25 here 99734.025
46 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 26 here 99734.026
47 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 27 here 99734.027
48 

Chairman VITTER. Thank you, Ms. Milito. 

And now, we will hear from Benjamin Bulis with the American 

Fly Fishing Trade Association. Welcome. 

STATEMENT OF BENJAMIN BULIS, PRESIDENT, AMERICAN 

FLY FISHING TRADE ASSOCIATION 

Mr. BULIS. Thank you. Good afternoon, Mr. Chairman and members of the subcommittee. I appreciate the opportunity to provide 

testimony in support of the Clean Water Act today. 

I had the good fortune to be born and raised in the beautiful 

State of New Hampshire. I personally have fished in the United 

States and around the world, but the rivers and streams of New 

Hampshire will always stay close to my heart. Now, I have the 

great fortune to live in Bozeman, Montana, which one could argue 

is the epicenter of the fly fishing industry. 

AFFTA represents the business of fly fishing, which includes 

manufacturers, retailers, outfitters, and guides across the nation 

who all share the same bottom line, furthering the sport and industry of fly fishing. This cannot be accomplished without clean water 

and vibrant fisheries habitat. The formula that drives AFFTA is 

very simple. Access to healthy habitat creates recreational opportunity that drives economic activities and jobs. 

Our industry provides the waders, rods, guides, and boats that 

47 million sportsmen and women utilize every time they step foot 

in their favorite piece of water. Their quality of experience, and, 

thus, our return sales to enhance those days, is dependent on access to clean water. 

I am here to express our support for the Army Corps of Engineers and the Environmental Protection Agency’s efforts to restore 

protections for our nation’s headwaters, streams, and wetlands 

under the Clean Water Act. Simply put, the draft clean water rule 

is well crafted and appropriate. It should be allowed to move 

through the federal rulemaking process with the support of Congress, and here is why. 

The small waters to which this important draft rule applies are 

the lifeblood for many of our country’s prized fisheries. The health 

of these headwaters sets the tone and benefits for all waters downstream, supporting and creating even the backbone of our nation’s 

marine resources. They flow into rivers, streams, and lakes that 

provide the foundation of our industry, thus eventually concluding 

the voyage in our oceans. Our industry’s viability depends on intact 

watersheds, cold, clean rivers and streams, and healthy, fishable 

habitat. 

Given that fishing in America supports approximately 828,000 

jobs, results in nearly $50 billion annually in retail sales, and has 

an economic impact of about $115 billion every year, it stands to 

reason that the health of our nation’s waters is vital to the continued success of our industry and to the health of America’s economy. 

We urge you to allow the rulemaking process to continue 

unimpeded. Carefully review the final rule when it comes out and 

then determine what, if any, legislative action is warranted. 

We owe it to the more than one million Americans who took the 

time to comment on the proposal to allow the process to reach a 

conclusion. More than 80 percent of those who commented on the 

DeShaun on LAP51NQ082 with DISTILLER

49 

proposal were in favor of it. Such strong support for clean water 

and healthy watersheds is what our members experience every day 

as we interact with our customers across the nation. 

If we fail to protect our headwaters, streams, and wetlands, we 

may destroy the $200 billion annual economy of the hunting and 

fishing industry, as well as put 1.5 million people out of work. Of 

those 1.5 million jobs, many are located in rural areas with limited 

economic opportunity and few other employment options. 

In recent years, participation in fly fishing has grown. We are 

seeing robust interest in our sport and it is translating to our sales, 

to the numbers of employees we hire right here in America, and 

to the health of brick-and-mortar retailers all over the country. 

The fly fishing industry is the epitome of small business. The 

sustainable domestic industry is dependent on clean, fishable 

water. 

And, again, on behalf of my Association and our members, I appreciate the opportunity to testify today, and I would also like to 

thank the committee and staff for their dedication to our nation. 

Thank you. 

[The prepared statement of Mr. Bulis follows:] 

DeShaun on LAP51NQ082 with DISTILLER

50 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 28 here 99734.028
51 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 29 here 99734.029
52 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 30 here 99734.030
53 

Chairman VITTER. Thank you all very much. We will now go to 

questions. 

Let me start by asking each of you to respond, but as concisely 

as you can, and the question is this, not whether you are in favor 

of clean water, not whether you think the proposed rule is a good 

one, but whether you think the proposed rule would have a significant impact on a substantial number of small businesses, which is 

the small business issue we are talking about in terms of following 

the law. Could each of you respond, what you think about that. 

Mrs. MAULSBY. Yes. From the farmers’ standpoint, it would have 

a huge impact on not just my farm and farms across Iowa, but 

farms and ranches across the whole country. It is a very serious 

issue that we are all very concerned about. 

Chairman VITTER. Okay. Mr. Noel. 

Mr. NOEL. Absolutely. We drain our neighborhood sometimes 

with roadside ditches and we have to put driveways over them. If 

we are forced to go get permits to put driveways in, it will obviously slow down the production of homes and houses for people. 

Chairman VITTER. All right. Ms. Milito. 

Ms. MILITO. And, yes, I would agree that it will have a substantial impact, and I think the agencies’ own administrative record 

also shows that it will, too. I mean, it is going to increase jurisdiction of the Clean Water Act by about three percent. 

Chairman VITTER. Okay. Mr. Bulis. 

Mr. BULIS. Yes. I think without this rule, it will have a significant impact on our industry. As I said, the 1.5 million jobs that are 

associated with the hunting and fishing industry, those could be at 

jeopardy. 

Chairman VITTER. Okay. I appreciate your answer to a different 

question, but let me restate my question. Do you think this proposed rule will have a significant impact on a substantial number 

of small businesses? 

Mr. BULIS. You know, I cannot speak for these other businesses. 

I can only speak for the fly fishing industry, and I am not sure how 

they would affect their businesses. 

Chairman VITTER. Okay. Ms. Maulsby, in general, how do you 

think the agricultural community has been engaged and their concerns have been incorporated into the substance of the proposed 

rule? 

Mrs. MAULSBY. One thing that we were disappointed about was 

that there were no hearings held in Iowa, and we would—just like 

Senator Ernst said, we would love to have EPA come out, and lawmakers, too. Our farms are open for tours. We would love to have 

people come out and see what we are doing on our land for conservation, the steps we are taking to keep the land more sustainable, and it is not just me. I have got lots of friends and neighbors 

that feel the same way. So, we would love to have people come out 

and actually see what is going on with conservation on the ground. 

Chairman VITTER. Okay. Mrs. Maulsby and Mr. Noel, let me ask 

you this. You all have brought up situations like temporary standing water ponds and roadside ditches and small amounts of water 

that driveways may go over, drainage ditches. Now, I know in a lot 

of these meetings and conversations, EPA and the Corps say, oh, 

DeShaun on LAP51NQ082 with DISTILLER

54 

no, no, no. We are not talking about that. Is there anything we can 

point to and read in the proposed rule that makes that very clear? 

Mrs. MAULSBY. No. That is the confusion. That is the uncertainty. There are no clear-cut answers to that type of information, 

and it is just that uncertainty that is so detrimental to the farm 

community and one of the things we are very concerned about with 

this proposed rule. 

Chairman VITTER. Mr. Noel. 

Mr. NOEL. Yes, Senator Vitter. It is disconcerting when you ask 

the Army Corps of Engineers to come out and give you a determination, and they are on a sugarcane farm where they have rows, 

and they are low between, right, and that tells me that that is wetlands, jurisdictional. And, then another Army Corps of Engineers 

comes out to make a determination and does not say it is. So, there 

is—you cannot plan to do developments and homes, et cetera, 

based on how this rule is written. You will have to hire a consultant. You will have to have the Corps come out and make a determination, and it delays everything—— 

Chairman VITTER. And, that determination—— 

Mr. NOEL [continuing]. Years. 

Chairman VITTER [continuing]. Could be different every time. 

Mr. NOEL. Absolutely, and it just—there is no way to run a small 

business not knowing what the rules are. 

Chairman VITTER. Right. 

Mrs. MAULSBY. Senator, I would add, too, that timing is everything in agriculture, and if you do not have the answers you need, 

your pests can get out of control quickly, your crop can be torn out 

right from under you if things cannot happen in a timely manner. 

Chairman VITTER. Sure. 

Mrs. MAULSBY. So, it is a very big issue. 

Chairman VITTER. Okay. And, Ms. Milito, let me ask you. If an 

RFA process had been used, what could that have done positively 

in terms of avoiding some of these concerns? 

Ms. MILITO. I think the consideration of less costly alternatives 

is the most important thing that the RFA process does and can do, 

as Mr. Maresca hit on. Thank you. 

Chairman VITTER. Okay. Thank you very much. 

I will turn to Senator Shaheen. 

Senator SHAHEEN. Thank you, Mr. Chairman, and thank you all 

very much for being here. Your testimony was very helpful. 

And, Mr. Bulis, I did not know until we got your biography that 

you are a New Hampshire native, and I appreciate your talking 

about fly fishing in New Hampshire. We think we have some great 

spots to do that. And, obviously, the outdoor industry is a very big 

economic contributor, not just to New Hampshire and Montana, 

but to the entire country. And, so, making sure that we have clean 

water that benefits everyone is very important. 

And, I am sure that all of you would agree with that. So, just 

to be clear, I do not assume that anybody here is suggesting that 

we should repeal the Clean Water Act. That is not what the concern is. 

So, let me go back. I thought, Mr. Noel, you were very helpful 

in terms of talking about the kinds of rules that would be helpful 

in providing some certainty for small businesses. As we all know, 

DeShaun on LAP51NQ082 with DISTILLER

55 

this is a proposed rule. It has not been finalized yet. And, so, in 

thinking about not just the process that was followed—I appreciate 

the concerns that have been raised about that, and I share some 

of those—but also in terms of trying to do a final rule that would 

provide more certainty for businesses, more understanding and 

clarity for businesses, would you talk a little bit more about that, 

Mr. Noel, and what you would like to see? 

Mr. NOEL. Certainly. You know, there was not very much clarity 

before. 

Senator SHAHEEN. Right, which is part of the problem. 

Mr. NOEL. Which is part of the problem. And, in the effort to 

clarify, they have grossly expanded it to cover areas that were, in 

our estimation, not determined to be waters of the United States, 

certainly like roadside ditches or ponds, temporary ponds. 

You know, with the work toward trying to come up with some 

very clear definitions, I mean, there was plant life, there was water 

on the soil, et cetera, that kind of led us in a direction to help do 

that. We thought they would be a little more specific for that as 

opposed to the rule that came out that said, basically, call us if you 

own a piece of land and we will tell you whether it is wetlands or 

not, based on whoever shows up that day. 

They need to define it in a way that any citizen that reads the 

rule can walk out there and say, yes, this is definitely wetlands. 

Where I live, it is clear what wetlands look like because we are 

surrounded by them in New Orleans and the South Louisiana area. 

But, the roadside ditches, flood plains, which we are also dealing 

with an Executive Order that expands the flood plains. And, so, it 

makes it very difficult to decide to buy a piece of land and develop 

when you have no idea what it is going to cost you to mitigate it, 

and the mitigation costs are not in the economic analysis, are significant. 

Senator SHAHEEN. And, Ms. Milito, can you share your thoughts 

about what would be helpful to small businesses in looking at any 

final rule and how, short of repealing what is being proposed, what 

would be helpful to small businesses in providing clarity? 

Ms. MILITO. I think—Senator, thank you for the question, too, 

and going back to your point, too, about the Clean Water Act itself, 

yes, I am not here to say that members of NFIB do not like clean 

water. What they do not like, and what we do not like about this 

rule in particular, is the agencies’, what I would say is kind of flagrant disregard for another law, another federal law, the Regulatory Flexibility Act, and what that law encompasses, and particularly the Small Business Advocacy Review Panel and the opportunity for the two agencies to hear from business owners, like Mr. 

Noel and like Mrs. Maulsby, in a very thoughtful and methodical 

way. So, not a big open forum where you have 100 business owners, but to hear specific, industry-specific things. So, to hear from 

the home builders with specific proposals. 

Senator SHAHEEN. And, I am not debating the process—— 

Ms. MILITO. Yes. 

Senator SHAHEEN [continuing]. And how that worked. I am trying to get a better sense from you of what you would like to see 

in terms of a final rule that would provide more clarity for businesses. 

DeShaun on LAP51NQ082 with DISTILLER

56 

Ms. MILITO. And the jurisdictional issue, which NFIB addressed 

in a letter to the agency, too, which I would be very happy to provide the committee in addition to a separate letter we did on the 

RFA, I would be happy to do that, too. But, I will just—— 

Senator SHAHEEN. That would be very—— 

Ms. MILITO. Yes, absolutely. That might be—— 

Senator SHAHEEN [continuing]. Very appreciated, if you 

would—— 

Ms. MILITO. Yes. 

Senator SHAHEEN [continuing]. Share that, and I am sure the 

Chairman will share that with the members. 

Ms. MILITO. Yes. Yes. Absolutely. 

Chairman VITTER. Sure. Absolutely. Without objection. 

[The information of Ms. Milito appears in the Appendix on page 

66.] 

Ms. MILITO. And, just going back, too, that we do feel, overall, 

there was an over-reach and going beyond what Congress intended 

with the Clean Water Act as far as what the agency’s authority is. 

Senator SHAHEEN. So, your objection is really the proposed rule. 

It is not that it does not provide clarity, it is more that you think 

it expands what is under existing law and that—— 

Ms. MILITO. That is part of—— 

Senator SHAHEEN [continuing]. NFIB does not like that. 

Ms. MILITO. Our objection is partly with regards to the jurisdictional issue, but also with regards to the RFA analysis, or lack 

thereof, that was done by the agencies. 

Senator SHAHEEN. Okay. Thank you. 

Ms. MILITO. Thank you. 

Senator SHAHEEN. That is helpful. 

And, Mr. Bulis, I am actually out of time, but I just wanted to 

give you the opportunity to comment. I assume—you talked very 

eloquently about the importance of our streams and rivers and to 

the outdoor industry. I assume that there are—we can continue to 

protect those waters and still come up with some rule that would 

do that, that could provide some clarity. Have you discussed that 

within your association and does that seem like something that is 

reasonable to expect? 

Mr. BULIS. Yes. I mean, we have discussed it, and I think the 

biggest thing we need to come up with is a balance, is a fair balance, where the—you know, we do not put our environment at risk, 

but we also do not put small business at risk. I think that is the 

most important thing. 

Senator SHAHEEN. That is a very good way to say it. Thank you. 

Thank you all. 

Chairman VITTER. Thank you. Absolutely. 

Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman, and welcome to all 

of you. It is such a pleasure to have you here today. 

Earlier this year, I was able to chair a field hearing in the State 

of Nebraska, in Lincoln, Nebraska, on waters of the U.S. and the 

impact on every Nebraskan that those proposed rules will have. We 

were very fortunate on one of the panels to have a home builder 

from the State of Nebraska, and he made a comment, Mr. Noel, 

DeShaun on LAP51NQ082 with DISTILLER

57 

that really brought this home to me, and, again, the impact that 

it has. 

In Nebraska, we have a broad, broad coalition of organizations, 

of people who are very, very concerned about the impact of these 

regulations, and I always smile and say, as a rancher, it is the 

usual suspects, people in agriculture who have deep concerns, but 

it is also home builders. It is cities, it is counties, the cost to taxpayers that these proposed rules are going to have. It is our natural resources districts, all of these folks have come together in opposition—in opposition to this overreach, I believe, by the federal 

government. 

But, the home builders said that, right now, 25 percent of the 

current cost of a new home is due to current regulations. That puts 

an American dream out of reach for most Americans. You know, it 

is an American dream to purchase a home, and we already are 

looking at 25 percent of the cost being due to regulations. What is 

going to be the impact of these proposed rules and more and more 

and more coming down from the federal government? 

Mr. NOEL. Well, great question. We struggle now to get an entry 

home built for a first-time homebuyer because of the regulations 

that we deal with, and, you know, they come from a multitude of 

areas—local government, state government, and certainly federal 

government. 

If any—if this rule was to go into effect and we had to spend additional money to get jurisdictional issues taken care of, it surely 

would put the first-time buyer out of reach of a single-family home 

because of the—— 

Senator FISCHER. Yes. We are seeing more apartments built than 

homes. 

Mr. NOEL. Right. 

Senator FISCHER. You know, so we see the effect, I think, of regulations right now. But, that, to me, was very telling. 

Mr. NOEL. Well, and home ownership has so many benefits to the 

community—— 

Senator FISCHER. Yes. 

Mr. NOEL [continuing]. And to the American society, that to become a renter nation would not be what I think is in the best interest of the folks here. 

Senator FISCHER. I agree. 

And, Mr. Bulis, when you talk about fly fishing, my brother was 

an avid fly fisherman. I am the Vice Chair of the Sportsman’s Caucus here in the Senate. I happen to live in an area with pristine 

fly fishing, so it is not all in Montana or in New Hampshire. We 

have that in Nebraska, as well. 

But, I believe that current regulations that we have in place 

seem to be doing the job. That is why we have these pristine areas. 

It has been said earlier, no-one wants to change the strides that 

we have made under the Clean Water Act. I think what many of 

us are concerned about is just the overreach that we see here. 

And, when you mentioned the comments that had been received 

by the EPA, about a million comments, 58 percent of those comments, the substantive comments that were made, were opposed to 

the rule, and that comes from the EPA’s own numbers. So, as peoDeShaun on LAP51NQ082 with DISTILLER

58 

ple really drilled down on these proposed rules, they did have deep 

concerns with it. 

But, I guess, I would ask you, do you believe it is necessary that 

we continue to have those partnerships between the states and the 

federal government when we look at water quality and our water 

resources? You know, the Nebraska Department of Environmental 

Quality implements EPA rules now. That is a responsibility we 

have. And, I would also note that the water in Nebraska belongs 

to the people of Nebraska. It is a state resource. It is not a federal 

resource. It is a state resource. And, I think we manage it well. We 

manage it responsibly. I have a concern about that partnership and 

what would happen in the future and I just would like your views 

on that. 

Mr. BULIS. You have the concern with the federal government 

and the state partnership? 

Senator FISCHER. Yes. Yes. In the future, if the rules with waters 

of the U.S. go forward. 

Mr. BULIS. I guess it is hard for me to comment on your particular state, but there are places across our country where we 

have some really bad water quality issues, Florida being one of 

them, from Lake Okeechobee discharges that are coming out of the 

Caloosahatchee and the Indian River lagoon, where we have members in those areas that, when the effluent water comes out of Lake 

Okeechobee, they have these huge blooms of algae that form, and 

there are signs that go up, do not touch the fish, do not go in the 

water. 

I mean, we have places in Chesapeake Bay where a large, or one 

of the contributing factors to the decline of striped bass is because 

of the forage fish that are not living in those areas anymore because of the water quality. 

You know, in the Gulf Coast, there are places that are coming 

from the Mississippi River with the effluence that is coming off and 

creating dead zones. 

So, I think that there is a real good—there has got to be a way 

that the states and the federal government work together to make 

sure that the water is the cleanest it possibly can be for our people 

and our environment and the businesses. 

Senator FISCHER. And I appreciated your comments about striking a balance. Obviously, I believe in a more limited federal government, and I believe that a balance is necessary, and especially for 

our small businesses and our taxpayers and the burdens that we 

are going to see on taxpayers with these regulations. So, thank 

you. Thank you—— 

Mr. BULIS. I agree with you, and I believe in the limited government reach, as well. I mean, in the State of Montana we had a reasonable and prudent speed limit, and now that is gone because of 

government. 

Senator FISCHER. Thank you. 

Chairman VITTER. Thank you all very much. We really appreciate your being here. We really appreciate your testimony. 

As I mentioned, I will be following up on this issue with a resolution about the EPA and the Corps, in my opinion, flagrantly ignoring the Regulatory Flexibility Act. That Act is really important for 

small business. It is one of the core protections in the regulatory 

DeShaun on LAP51NQ082 with DISTILLER

59 

process for small business. It should be one of the things this committee is all about. So, following that law is really important. So, 

we will follow up on that. 

And, with regard to the substance of this rule, I just have a big 

concern, as many of you do, that there was lack of clarity. So, the 

agencies clarified all of that completely from their point of view, because if the question is, in the future, do the agencies have jurisdiction, the answer is going to be yes. You do not have to finish the 

sentence. You do not have to go on. You do not have to provide any 

details. The answer is yes. And, then, they will decide when and 

how to exercise it. Obviously, that is not clarity for you all, and I 

share that concern. 

Senator Shaheen, any closing thoughts? 

Senator SHAHEEN. Just thank you all very much for being here, 

and hopefully we will see a final rule that is proposed that strikes 

the balance that you suggested, Mr. Bulis, between protecting our 

water resources and making sure that small businesses are not adversely—too adversely affected. Thank you. 

Chairman VITTER. Thank you very much. 

With that, the hearing is adjourned. 

[Whereupon, at 3:26 p.m., the committee was adjourned.] 

DeShaun on LAP51NQ082 with DISTILLER

DeShaun on LAP51NQ082 with DISTILLER

(61) 

APPENDIX MATERIAL SUBMITTED 

DeShaun on LAP51NQ082 with DISTILLER

62 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 31 here 99734.031
63 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 32 here 99734.032
64 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 33 here 99734.033
65 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 34 here 99734.034
66 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 35 here 99734.035
67 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 36 here 99734.036
68 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 37 here 99734.037
69 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 38 here 99734.038
70 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 39 here 99734.039
71 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 40 here 99734.040
72 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 41 here 99734.041
73 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 42 here 99734.042
74 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 43 here 99734.043
75 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 44 here 99734.044
76 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 45 here 99734.045
77 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 46 here 99734.046
78 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 47 here 99734.047
79 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 48 here 99734.048
80 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 49 here 99734.049
81 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 73 here 99734.073
82 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 74 here 99734.074
83 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 50 here 99734.050
84 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 51 here 99734.051
85 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 75 here 99734.075
86 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 76 here 99734.076
87 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 77 here 99734.077
88 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 78 here 99734.078
89 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 79 here 99734.079
90 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 80 here 99734.080
91 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 81 here 99734.081
92 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 82 here 99734.082
93 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 83 here 99734.083
94 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 84 here 99734.084
95 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 85 here 99734.085
96 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 86 here 99734.086
97 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 87 here 99734.087
98 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 88 here 99734.088
99 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 89 here 99734.089
100 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 90 here 99734.090
101 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 91 here 99734.091
102 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 92 here 99734.092
103 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 93 here 99734.093
104 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 94 here 99734.094
105 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 95 here 99734.095
106 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 96 here 99734.096
107 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 97 here 99734.097
108 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 98 here 99734.098
109 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 99 here 99734.099
110 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 100 here 99734.100
111 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 52 here 99734.052
112 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 53 here 99734.053
113 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 54 here 99734.054
114 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 55 here 99734.055
115 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 56 here 99734.056
116 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 57 here 99734.057
117 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 58 here 99734.058
118 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 59 here 99734.059
119 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 60 here 99734.060
120 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 61 here 99734.061
121 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 62 here 99734.062
122 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 63 here 99734.063
123 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 64 here 99734.064
124 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 65 here 99734.065
125 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 66 here 99734.066
126 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 67 here 99734.067
127 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 68 here 99734.068
128 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 69 here 99734.069
129 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 70 here 99734.070
130 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 71 here 99734.071
131 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 72 here 99734.072
132 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 101 here 99734.101
133 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 102 here 99734.102
134 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 103 here 99734.103
135 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 104 here 99734.104
136 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 105 here 99734.105
137 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 106 here 99734.106
138 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 107 here 99734.107
139 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 108 here 99734.108
140 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 109 here 99734.109
141 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 110 here 99734.110
142 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 111 here 99734.111
143 

Æ 

DeShaun on LAP51NQ082 with DISTILLER


Insert offset folio 112 here 99734.112