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88–042 2014

WILL EPA’S ‘WATERS OF THE UNITED STATES’ 

RULE DROWN SMALL BUSINESSES? 

HEARING 

BEFORE THE

COMMITTEE ON SMALL BUSINESS 

UNITED STATES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD 

MAY 29, 2014 

Small Business Committee Document Number 113–071 

Available via the GPO Website: www.fdsys.gov 

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Congress.#13
(II) 

HOUSE COMMITTEE ON SMALL BUSINESS 

SAM GRAVES, Missouri, Chairman 

STEVE CHABOT, Ohio 

STEVE KING, Iowa 

MIKE COFFMAN, Colorado 

BLAINE LUETKEMEYER, Missouri 

MICK MULVANEY, South Carolina 

SCOTT TIPTON, Colorado 

JAIME HERRERA BEUTLER, Washington 

RICHARD HANNA, New York 

TIM HUELSKAMP, Kansas 

DAVID SCHWEIKERT, Arizona 

KERRY BENTIVOLIO, Michigan 

CHRIS COLLINS, New York 

TOM RICE, South Carolina 

NYDIA VELA ́ ZQUEZ, New York, Ranking Member 

KURT SCHRADER, Oregon 

YVETTE CLARKE, New York 

JUDY CHU, California 

JANICE HAHN, California 

DONALD PAYNE, JR., New Jersey 

GRACE MENG, New York 

BRAD SCHNEIDER, Illinois 

RON BARBER, Arizona 

ANN McLANE KUSTER, New Hampshire 

PATRICK MURPHY, Florida 

LORI SALLEY, Staff Director 

PAUL SASS, Deputy Staff Director 

BARRY PINELES, Chief Counsel 

MICHAEL DAY, Minority Staff Director 

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(III) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Hon. Sam Graves ..................................................................................................... 1 

Hon. Nydia Vela ́zquez ............................................................................................. 2 

WITNESSES 

Mr. Jack Field, Owner, Lazy JF Cattle, Yakima, WA, testifying on behalf 

of the National Cattlemen’s Beef Association and Washington Cattlemen’s 

Association ............................................................................................................ 3 

Mr. Alan Parks, Vice President, Memphis Stone and Gravel Co., Memphis, 

TN, testifying on behalf of the National Stone, Sand and Gravel Association ........................................................................................................................ 5 

Mr. Tom Woods, President, Woods Custom Homes, Blue Springs, MO, testifying on behalf of the National Association of Home Builders ......................... 7 

Mr. William Buzbee, Professor of Law, Director, Emory Environmental and 

Natural Resources Law Program, Emory Law School, Atlanta, GA ................ 9 

APPENDIX 

Prepared Statements: 

Hon. Blaine Luetkemeyer ................................................................................ 32 

Mr. Jack Field, Owner, Lazy JF Cattle, Yakima, WA, testifying on behalf 

of the National Cattlemen’s Beef Association and Washington Cattlemen’s Association .......................................................................................... 34 

Mr. Alan Parks, Vice President, Memphis Stone and Gravel Co., Memphis, TN, testifying on behalf of the National Stone, Sand and Gravel 

Association ..................................................................................................... 39 

Mr. Tom Woods, President, Woods Custom Homes, Blue Springs, MO, 

testifying on behalf of the National Association of Home Builders .......... 47 

Mr. William Buzbee, Professor of Law, Director, Emory Environmental 

and Natural Resources Law Program, Emory Law School, Atlanta, 

GA .................................................................................................................. 56 

Questions for the Record: 

None. 

Answers for the Record: 

None. 

Additional Material for the Record: 

American Public Gas Association (APGA) ...................................................... 64 

American Road & Transportation Builders Association (ARTBA) ............... 68 

National Agricultural Aviation Association (NAAA) ..................................... 72 

National Federation of Independent Business (NFIB) .................................. 75 

National Wildlife Federation (NWF) ............................................................... 83 

Responsible Industry for a Sound Environment (RISE) ............................... 85 

Trout Unlimited ................................................................................................ 88 

United Ag .......................................................................................................... 91 

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(1) 

WILL EPA’S ‘WATERS OF THE UNITED 

STATES’ RULE DROWN SMALL BUSINESSES? 

THURSDAY, MAY 29, 2014 

HOUSE OF REPRESENTATIVES, COMMITTEE ON SMALL BUSINESS, Washington, DC. 

The Committee met, pursuant to call, at 1:00 p.m., in Room 

2360, Rayburn House Office Building. Hon. Sam Graves [chairman 

of the Committee] presiding. 

Present: Representatives Graves, Chabot, King, Luetkemeyer, 

Tipton, Herrera Beutler, Huelskamp, Schweikert, Bentivolio, Collins, Rice, Vela ́zquez, Schrader, Chu, and Payne. 

Chairman GRAVES. Good afternoon, everyone. We will call the 

hearing to order. I want to thank our witnesses for being here. 

In my four years as chairman, the Committee on Small Business 

has held more than 20 hearings examining the effects of regulations on small businesses and the economy. However, few regulations examined at these previous hearings are as expansive and potentially damaging to small businesses as the recently proposed 

‘‘Waters of the United States’’ rule. This rule as currently drafted 

could extend the regulatory reach of the Clean Water Act to thousands of small streams, ditches, ponds, and other isolated waters, 

some of which have very little or no connection to traditionally navigable waterways. 

The agency claims that the proposed rule will increase clarity as 

to which waters are subjected to the Clean Water Act jurisdiction. 

However, this proposed rule creates more confusion, not less. 

Terms like neighboring, floodplain, riparian an area, tributary, and 

significant nexus are vaguely defined and fail to clarify where the 

Clean Water jurisdiction will end. 

Under this proposed rule, farmers, ranchers, home builders, and 

a variety of other small businesses could find their lands and livelihoods subject to the Clean Water Act jurisdiction for the very first 

time. And the burdens of this regulatory regime extend beyond the 

need to obtain federal permits and will also require costly and 

time-consuming mitigation activities and project modifications. 

While this proposed rule clearly has significant consequences for 

small businesses, the EPA and Army Corps of Engineers failed to 

assess those impacts. Had the agencies conducted research and gotten input from small businesses as required by the Regulatory 

Flexibility Act, perhaps they would have identified and fixed some 

of the problems with the rule before it was proposed. This rule 

threatens to drown small businesses in unnecessary regulatory requirements, and for that reason, I hope the EPA and the Corps will 

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2 

withdraw the rule and conduct the required small business impact 

analysis and outreach before proceeding. 

And again, I want to thank all of our witnesses for being here, 

each one of you. We look forward to your testimony, and I now 

yield to Ranking Member Vela ́zquez for her opening statement. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. 

Since its establishment in 1970, the Environmental Protection 

Agency has been vital to protecting public health and safety. Over 

the last 40 years, a series of laws passed by Congress have placed 

greater responsibility on the agency for ensuring the water we 

drink and the air we breathe is safe and not a threat to human 

health. Most of us, including many on both sides of the aisle, likely 

agree that the goals of the EPA, protecting our health and environment, should be a priority. Reducing pollution and environmental 

risk is not only important to public health, but carries important 

economic benefits as well. However, as the EPA carries out its vital 

mission, it must always be mindful of how new rules and regulations impact our nation’s small businesses. 

One of the EPA’s primary responsibilities is the enforcement of 

the Clean Water Act, whose implementation is shared in part with 

the Army Corps of Engineers. Through these steps and the implementation of the act, Americans are healthier, our waterways are 

being remediated, and as a result, many industries are seeing 

greater opportunities. In light of this, it is clear that no small business wants our water supply to be compromised. In fact, we have 

heard time and again in this committee, how entrepreneurs are 

pioneering many of the clean technologies that are reducing pollution. Still, when we talk about regulations, the truth of the matter 

is that such rules almost always impact small firms. 

Today, we will examine one such regulation—the EPA and Army 

Corps’ proposed rule redefining which waters are subject to the 

Clean Water Act. Under this proposal, new bodies of water will become subject to the act, while others will be excluded. Additionally, 

steps are taken to preserve further exemptions for normal farming 

and ranching activities, such as irrigation and the runoff of 

stormwater, activities that are often undertaken by small firms. 

Regardless, these changes will result in winners and losers, and 

unfortunately, some small businesses, particularly those involved 

in construction and agriculture, will likely be subject to greater 

regulatory costs. It is important to note, however, that there are 

many sectors also dominated by small businesses which will benefit. This includes companies engaged in recreation, tourism, hunting, fishing, and boating. For those companies, their livelihood is 

often tied to clean water. This rule also brings with it water economic benefits, making our drinking water safer and providing 

farms with clean water to irrigate their crops. Unbalanced, it appears that there will be small businesses on both sides of this 

issue. 

Regardless, small businesses need a rule that works for everyone, not just a few. With this in mind, it is concerning that no regulatory flexibility analysis was performed. While the agency certified this proposed rule would not have a significant economic impact on a substantial number of small entities, it provided no justification for this finding. Such agency indifference is something 

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that this committee is all too familiar with. Similarly, the EPA’s 

analysis found that there was no need to conduct a small business 

advocacy review panel, a special requirement for the EPA. 

During today’s hearing, I am interested in witnesses’ perspectives on the agency’s rationale for not taking these steps. These 

issues are not new to this committee. It is critical that as new rules 

are developed, small business interests must be balanced against 

our desire to preserve the environment. Central to this is making 

sure small firms have the ability to provide input and make substantive comments throughout the regulatory process. 

Today, I hope to hear very clearly how EPA concluded or did not 

conduct outreach to small firms. I want to know what is working 

and what is not, and most of all, how the process can be improved. 

Such steps are critical, especially as we continue to consider 

changes to the Regulatory Flexibility Act. As with most regulatory 

matters, there are small businesses on both sides of this issue, and 

given this, it is important that we hear from them. The reality is 

that small firms and their job creating potential are central to our 

economy as is a clean and healthy environment. Balancing these 

two goals has never been more important and more difficult, and 

I look forward to today’s hearing to gain insight into these very 

matters. 

With that, I thank our witnesses for their participation, and I 

yield back the balance of my time. Thank you, Mr. Chairman. 

Chairman GRAVES. If any other Committee members have an 

opening statement prepared, I would ask that you submit it so we 

can include it in the record. 

I would also like to take just a minute to explain the lights. 

There are five minutes for testimony, and when it comes down to 

one minute, the yellow light will come up. And we ask that you try 

to adhere to it, but if you go over, we are not going to stop you. 

And with that, we will start with introductions. And our first 

witness is Jack Field. He is the owner of a small commercial cattle 

operation, the Lazy JF Cattle Company in Yakima, Washington. 

Mr. Field also serves as the executive vice president of the Washington Cattlemen’s Association, and in that role he works with livestock producers and educates them about state and federal water 

quality regulations. Mr. Field is also a member of the National 

Cattlemen’s Beef Association, and he is testifying today on behalf 

of both organizations. Thanks for being here and coming all this 

way. And we look forward to your testimony. 

STATEMENTS OF JACK FIELD, OWNER, LAZY JF CATTLE COMPANY; ALAN PARKS, VICE PRESIDENT, MEMPHIS STONE AND 

GRAVEL COMPANY; TOM WOODS, PRESIDENT WOODS CUSTOM HOMES; WILLIAM BUZBEE, PROFESSOR, EMORY ENVIRONMENTAL AND NATURAL RESOURCES LAW PROGRAM, 

EMORY LAW SCHOOL 

STATEMENT OF JACK FIELD 

Mr. FIELD. Thank you, Mr. Chair. 

Good afternoon. My name is Jack Field. I am a cattle rancher 

from Yakima, Washington, and the executive vice president of the 

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Washington Cattlemen’s Association. WCA is an affiliate of the National Cattlemen’s Beef Association of which I am also a member. 

Thank you to the chairman and ranking member for allowing me 

to testify today on the impacts of the EPA and Army Corps’ proposed expanded definitions of waters of the United States. I will 

also provide my concerns with the interpretive role that was promulgated alongside this proposal. 

I own and manage 120 head of cattle, which is about the average 

number of cattle for a rancher in the U.S., which means the average producer falls under what the law considers a small business. 

My cattle drink from tanks which I pump from a stream so I can 

protect potential bull trout habitat. They also water from irrigation 

ditches, ponds, creeks, seeps, and puddles that they find. It is important to me and my operation to have clean water. 

The cattle industry prides itself on being good stewards of our 

country’s natural resources. We maintain open spaces, and provide 

wildlife habitat. We also provide the country with those juicy 

ribeyes we love to throw on the grill on summer days like today. 

To provide these important functions, cattlemen must be able to 

operate without excessive federal burdens like the one we are discussing today. As a producer and the head of a state association, 

I can tell you after reading this proposal, it has the potential to 

negatively impact every aspect of my operation by dictating land 

use activities in Washington State from 2,600 miles away. After 

reading the proposal, I can say one thing is clear—this proposal is 

not clear. 

There are undefined terms and phrases throughout the rule. The 

proposal would include ditches as waters of the U.S. if a regulator 

can distinguish a bed, a bank, and an ordinary high water mark. 

The proposal would also make everything within a floodplain and 

a riparian area a water by considering them adjacent waters. The 

result could be to eliminate the use of my entire summer pasture 

which is located wholly in a floodplain. 

As you can see looking on the screen, I have a ditch running 

through my pasture. Cattle utilize this for drinking. In my judgment, this could easily qualify as a water of the U.S., opening me 

and my ranch up to significant liability. Not only could I be required to obtain a 404 permit for grazing cows in the pasture, but 

making it a federal water there are now considerations under the 

National Environmental Policy Act (NEPA) and the Endangered 

Species Act due to the federal decision-making in granting and denying a permit. 

There also is a citizens’ supervision under section 505 of the 

Clean Water Act that would keep me up at night. Instead of improving water quality, it is my belief, and the belief of both WCA 

and NCBA that this proposal will decrease water quality by discouraging conservation. I recently—next picture—completed a voluntary project which you can see here. I installed a fence that creates a riparian pasture so I can manage grazing that occurs within 

the riparian area, which also protects water quality. If this proposal and the interpretive rule I enforced when I started this 

project, I would not have completed it due to the significant legal 

liability the proposal created. If I implemented a conservation practice that is not on this prescriptive list of 56 practices outlined as 

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5 

part of the interpretive rule, I could fall outside of the exemption 

and be subject to a 404 dredge and fill program. While this may 

not have been the intent, this was the result of the proposal. 

The fence in the picture was cost-shared with local dollars from 

my conservation district, which does not meet the strenuous NRCS 

standards due to wider post spacing and reduced numbers of wires 

and stays. I would not go through the hassle of obtaining the 404 

permit for such a small project like this. The total fence was roughly a quarter mile with an approximate cost of $1,400. My estimate 

in looking at this, with NRCS standards, it would cost me additionally another $300 per quarter mile. That may not sound like a lot, 

but when you expand that over several hundreds of acres and the 

fencing that goes with that, it adds up. And on a small operation 

like mine, every dollar counts. 

Future conservation projects will not be implemented if this interpretive rule and the definitions are allowed to move forward. I 

could not afford to be at risk of being in violation of the Clean 

Water Act with violations and fines that could add up to $37,000 

day and the risk of potential criminal sanctions. I want to do my 

part for the environment, but I cannot if it would jeopardize my entire operation. 

This did not have to be the result. All the agencies had to do was 

to engage stakeholders early in the process, incorporate our suggestions, and we would be much further along in crafting a rule that 

actually clarifies the scope of the Clean Water Act jurisdiction. Despite what EPA is saying, they did not have a meaningful dialogue 

with the small business community. There was zero outreach to the 

agricultural community before the rule was proposed and before 

the interpretive rule went into effect. What we are left with now 

is a proposal that does not work for small businesses, does not 

work for cattle ranchers, and does not work for the environment. 

I would ask that the agencies ditch the rule. I believe we can do 

a lot better than this. Thank you. 

Chairman GRAVES. Thank you, Mr. Field. 

I am trying to decide if we try to go through one more witness. 

We will go through one more witness. Unfortunately, we have had 

a series of votes called. 

Our next witness is Alan Parks. He is the vice president of Memphis Stone and Gravel Company, which is a locally owned and operated aggregate supplier in Memphis, Tennessee and North Mississippi. As vice president, Mr. Parks is involved in all phases of 

the company’s development of sand and gravel resources, including 

permitting and environmental compliance, and he has a degree in 

mining engineering. He previously worked for the Tennessee Department of Environment and Conservation. Mr. Parks is testifying 

on behalf of the National Stone, Sand, and Gravel Association. 

Thanks for being here. 

STATEMENT OF ALAN PARKS 

Mr. PARKS. Chairman Graves and members of the Committee, 

thank you for inviting me to testify on behalf of the National Stone, 

Sand, and Gravel Association. 

My name is Alan Parks, and I am vice president of Memphis 

Stone and Gravel Company, which was started in 1910 and reSBREP-219 with DISTILLER

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mains a family-owned business. We have eight active mining facilities in Tennessee and Mississippi. 

There are more than 10,000 construction aggregate operations 

nationwide. Of particular relevance to this hearing, 70 percent of 

our members are considered small business. 

Aggregates are the chief ingredient in asphalt pavement and concrete, and used in nearly all building construction. As the industry 

that provides essential construction materials, we are deeply concerned by EPA’s expansion of the Clean Water Act. This would 

cause further harm to an industry that has seen production drop 

by 39 percent since 2006. 

The companies in our industry remove resources from the 

ground, then process them into usable construction products. We do 

not use or discharge any hazardous chemicals. After we recover 

these resources, we return the land to other productive uses, such 

as farm land and recreational lakes. 

While stone, sand, and gravel resources may seem to be everywhere, these materials must meet strict technical guidelines to 

make our roads and infrastructure safe and durable. Unlike other 

businesses, we cannot simply choose where we operate. We are limited to where natural forces have deposited these materials. Because high quality aggregate deposits were often created by water, 

they are often located near water. Water management is a significant issue for any company in our industry. 

EPA claims this rule is needed because so many waters are unprotected. We believe that is not the case. Before breaking ground 

on any project, we evaluate whether we are affecting jurisdictional 

water, which requires consultation with the Corps and state officials. There is an extensive review of all of our projects to ensure 

compliance with local, state, and federal rules governing how we 

can or cannot affect land and water resources. 

While there are many inefficiencies in the current regulatory system, adding vague terms and undefined concepts to an already 

complicated program is not the way to improve the process. For example, EPA states groundwater is excluded from this rule, but the 

rule also says that shallow subsurface connections are included. 

Does this mean that water that fills our pits is jurisdictional? 

From Memphis Stone and Gravel Company’s point of view, it 

would be a rare event not to encounter shallow groundwater in 

sand and gravel deposits. Will a separate permit be required for reclaiming the pit and returning it to another beneficial use? These 

are just some of the many questions this rule poses but does not 

answer. 

Having a clear jurisdictional determination for each site is critical to the aggregates industry. These decisions impact the planning, financing, construction, and operating of our facilities. Because the Clean Water Act dredge and fill permit and the corresponding states’ 401 certification process is so long and costly for 

a small company like ours, we attempt to avoid jurisdictional areas. 

Now under the proposed revisions, many previously nonjurisdictional areas could be considered jurisdictional. It will make nearly 

any area we try to access require additional permits. 

The delay caused by multiple surveys, reports, and additional authorizations will add significant new costs during the permitting 

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process, which could lead to abandoning projects once considered 

viable. One NSSGA member calculated that to do the additional 

mitigation of a stream required under this rule would be more than 

$100,000. This is just one site and one project in our industry. 

We make business decisions to buy or lease properties for 15 to 

30 years in advance of our operations. A change in what is considered jurisdictional can have a significant impact on our material reserves, which will affect the life of our facilities and delay the startup of new sites. If it is determined that development of a site will 

take too long or cost too much to acquire permits or perform mitigation, we will not move forward. That means a whole host of economic activity in a community will not occur. 

Given that infrastructure investment is essential to economic recovery and growth, any change in the way land use is regulated 

places additional burden on the aggregates industry. This is a serious change in the rules that dictate how we can or cannot conduct 

business. 

NSSGA appreciates this opportunity to speak on this matter. 

Thank you, Mr. Chairman. I will be happy to respond to any questions. 

Chairman GRAVES. Thank you, Mr. Parks. 

And with that, we will break. We have got a 15-minute vote and 

four five-minute votes at this point, so we should not be too terribly 

long. But I would ask everybody to stay and come back. But I 

apologize for this. The ranking member and I do not get to make 

the schedule on voting, unfortunately. But we will be back shortly. 

So the Committee is in recess. 

[Recess] 

Chairman GRAVES. All right. We will go ahead and call the 

hearing back to order. 

Our next witness is going to be Tom Woods, who is a home builder with more than 40 years experience in the home building industry. He is the president of Woods Custom Homes, a building company based in Blue Springs, Missouri, in my district. Tom serves 

as the 2014 first vice chairman of the Board of the National Association of Home Builders and is testifying on behalf of that association. 

Tom, thanks for being here today. I look forward to your testimony. 

STATEMENT OF TOM WOODS 

Mr. WOODS. Chairman Graves and members of the Subcommittee, I appreciate this opportunity to testify today. My name 

is Tom Woods, and I am the president of Woods Custom Homes 

based in Blue Springs, Missouri, and NAHB’s 2014 first vice chairman of the board. 

Since its inception, the Clean Water Act has made significant 

strides in improving the quality of our water resources. Home 

builders have a vested interest in the protection of our water resources. Home building is one of the most regulated activities in 

this country, and as a small business owner, I can tell you that the 

key to a successful regulatory regime is consistency, predictability, 

timeliness, while focusing on protecting true aquatic resources. 

When it comes to the Clean Water Act, we get none of that. 

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For years, landowners and regulators alike have been frustrated 

with the confusion over what are ‘‘Waters of the United States.’’ 

When the EPA and Army Corps proposed this most recent rule, we 

hoped it would finally provide clarity and certainty. Unfortunately, 

the rule falls well short of that goal. 

The rule establishes broader definitions of existing regulatory 

categories, such as tributaries, and seeks to regulate new areas 

that are not currently federally regulated, such as adjacent nonwetlands, riparian areas, floodplains, and other waters. 

The agencies intentionally created overly broad terms so they 

have the authority to interpret them. Under this rule, the federal 

government would regulate roadside ditches or water features that 

may flow, only after a heavy rainfall. 

I am a businessman. I need to know the rules. I can’t play a 

guessing game of ‘‘is it federally jurisdictional?’’ But that’s just 

what this proposal would force me to do. 

Builders would face new, costly delays just waiting for the agencies to determine if a road ditch is a ‘‘Water of the United States.’’ 

The only winners are the lawyers, as this rule will certainly lead 

to increased litigation. 

My business has already been a victim of permitting delays. For 

one of my building projects, I was entangled in the Army Corps 

permitting process for over two years. 

These delays will only increase as the agencies work to extend 

federal protections to smaller waters. 

While many aspects of the Clean Water Act are vague, it is clear 

that Congress intended to create a partnership between the federal 

agencies and the state governments to protect our nation’s water 

resources. There is a point where federal authority ends and state 

authority begins. Unfortunately, defining that point has proven incredibly difficult. 

States have adequately regulated their own waters and wetlands 

for years. As a former mayor, I have a firsthand understanding of 

the lengths that the states and local governments go in order to 

protect their waters. The agencies have bypassed the safeguards of 

the Regulatory Flexibility Act by failing to consider the true economic costs on small business. Since the agencies failed to hold a 

small business panel, it is clear that they are not interested in 

hearing from small businesses like mine. Unfortunately, all too 

often the EPA completely ignore the RFA requirements. The agency’s economic analysis of the proposed rule failed to consider the 

economic impact on small businesses and is therefore fatally 

flawed. 

According to economist Dr. David Sunding, ‘‘the errors and omissions in EPA’s study are so severe as to render it virtually meaningless.’’ That should give us all pause. 

It is clear that the EPA should withdraw the economic analysis 

and prepare a more thorough and accurate analysis. Any final rule 

should provide understandable definitions and preserve the partnership between all levels of government, while also considering 

the impacts on small businesses. All are sorely lacking here. I request that the agency start over and develop a more meaningful 

and balanced rule that respects the spirit of the RFA. 

Thank you for the opportunity to testify today. 

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Ms. VELA ́ ZQUEZ. Mr. Chairman, it is my pleasure to introduce 

Professor William Buzbee. Professor Buzbee is a professor of law 

at Emory University School of Law, where he is also the director 

of the Environmental and Natural Resources law program. He will 

next be joining the faculty of Georgetown Law Center. Before becoming a professor, he counseled industry, municipalities, and governmental authorities about environment law, pollution control, 

and land use issues. Professor Buzbee has written extensively 

about related issues with a focus on regulatory federalism. Welcome. 

STATEMENT OF WILLIAM BUZBEE 

Mr. BUZBEE. Thank you very much. And thank you to all the 

members of the Committee. 

I am pleased to accept the invitation to testify before the Committee. I think I was invited to testify due to my expertise, not as 

a partisan or representative of any organization, so what I will try 

to do is provide a little bit of context about what is going on with 

these proposed regulations and offer a few comments about the legality and logic of the regulations. 

I should add that this is not my first involvement with the question of what is waters of the United States. Earlier, I represented 

a bipartisan group of former EPA administrators before the Supreme Court in the Rapanos case. They are aligned with the 

George W. Bush administration in trying to uphold the longstanding protections of the regulations about waters of the United 

States, and then subsequently, I testified at a few hearings about 

the very confusing ruling that emerged. 

I will make five main points in my testimony. First, although 

people have focused on wetlands protections, it is important to understand that what is a water of the United States is a lynchpin 

of the whole Clean Water Act, including pollution discharges from 

industry, oil, and other sorts of spills and water concerns. 

Second, there have been some comments about these regulations 

questioning if they are legal in response to what the Supreme 

Court has done in three major cases, and I will show that they are. 

In addition, there have been persistent claims, and we have heard 

some today, that the regulatory claims here are too broad. And I 

will show how these proposed regulations actually cut back on EPA 

and the Army Corps’ jurisdiction. Very importantly, the regulations 

here are linked to a massive survey of peer reviewed science on 

wetlands. In an era when people think agencies should respect 

sound science and peer reviewed science, it is important to acknowledge that is the underpinning of this regulation. And then 

lastly, I will show how the regulations here reduce a commercelinked rationale that long has been an underpinning of federal 

power. 

So first, again, it is important to understand the Clean Water 

Act. Waters of the United States is the entire root of federal power 

here. So if you are concerned about industrial discharges into 

America’s waters, industrial discharges into what might be a dry 

riverbed in the southwest and what would happen during a heavy 

rain flow, that is as much a concern as is wetlands filling. It is important to keep that in mind. And certainly given the importance 

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of fishing industries, the use of waters for drinking water, municipal uses and the like, protecting waters is of critical importance 

across the entire nation. Businesses are on all sides of this issue. 

Second, this point about people’s claim that this is an illegal grab 

of power beyond what the Supreme Court has allowed, this is clearly incorrect. Six Supreme Court justices in the Rapanos case agreed 

that EPA and the Army Corps, by regulation, could clarify what 

counts as a water of the United States. And then earlier in a case 

called Riverside Bayview Homes, a unanimous Supreme Court also 

talked about this being an area appropriate for rulemaking authority. There is no doubt this is something where authority exists. 

People may skirmish over what the appropriate bounds are, but is 

there room for rulemaking here? The answer is absolutely. 

Point three. These people have failed to acknowledge that in 

these regulations for the first time the Army Corps and EPA have 

very explicitly carved out jurisdiction saying they will no longer assert jurisdiction in several areas. I will not list them off in depth 

because of the limited time, but it includes waste treatment systems, prior converted crop land, ditches that are upland and do not 

contribute flow to other waters, and really, if you look through 

these, several of them seem to be a direct answer to some previous 

testimony, which will have talked about efforts to regulate puddles 

and meaningless things like gutters and birdfeeders. They have 

clearly said that they are not reaching out to the outermost limits. 

Point four has to do with the peer reviewed science. I am sure 

it is great reading for all of us, but there is a 300 some odd page 

science report that goes through all of the peer reviewed science on 

why you should protect waters, and the proposed regulations here 

tie in very directly. And so again that is an important change now 

in these regulations, really hinging federal jurisdiction to that 

science. 

Now, point five, in my last few seconds, is there was a longstanding regulation 328.3(a) or (a)(3), I am sorry, that allowed the 

federal government to assert jurisdiction over disputed waters if 

they could show the harm or the use of waters was linked to commerce and industry. And EPA and the Army Corps have deleted 

that provision, and so they now are no longer asserting that. At 

this point, under these regulations, all jurisdictions are hinged to 

what the science shows about the need to protect waters. 

So I will stop there. Thank you very much, members. 

Chairman GRAVES. Thank you very much. We are going to start 

our questions with Mr. Tipton. 

Is Jamie here? 

Mr. Huelskamp? 

Mr. HUELSKAMP. Thank you, Mr. Chairman. I appreciate moving to the front of the line here. That kind of surprised me a little 

bit. 

Gentlemen, thanks for your testimony. I apologize for Mr. Field 

coming and winning the award for traveling the furthest distance, 

oftentimes coming from halfway across the country. I wish I were 

further away from the regulators in Washington, but I appreciate 

your description of what actually happens on a ranch and what you 

fear these proposed regulations might do for you. It certainly is a 

vast overreach and certainly being in agriculture myself, I am worSBREP-219 with DISTILLER

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ried about what happens, whether it is dry stream beds, backyard 

ponds. You know, we wish we actually had road ditches with water 

in them, but my understanding of the rule would mean that they 

would have a regulatory nexus from Washington to interfere with 

those as well and creating that regulatory uncertainty in these vast 

overreaches is creating some problems. 

I wish, for Mr. Field and Mr. Parks, if you would describe a little 

further what changes you believe you might have to make. And 

again, that is the difficulty, is the regulatory uncertainty, because 

this is not the first time there has been a proposal to strike the 

word ‘‘navigable’’ and say, hey, that does not count anymore, even 

though that is certainly the intention of Congress. So if you will describe a little bit more specifically what you think you might have 

to do and the cost of doing those in the future. 

Mr. FIELD. Absolutely. Thank you very much, Congressman. 

The biggest question, as you have highlighted, is being asked to 

explain hypothetically what will happen when I cannot clearly tell 

you what the rule means is very difficult, but I will do my very 

best. 

The biggest challenge—and I reference this list—this is a list of 

the 56 preapproved practices that EPA has deemed are not going 

to create a discharge if an individual—and these are related to 

farming and agricultural activities—if an individual executes those 

as prescribed by NRCS. 

So just for my example, and we talked a little bit earlier about 

fencing or prescribed grazing. Clearly, it would create additional 

expense and burden on my operation to have to go through and create NRCS approved grazing plans to ensure that in areas where I 

have a riparian pasture, if I have a fence that touches that riparian 

area, meaning if it floods at any time of the year and then that 

water drains back into a tributary, which the EPA may deem has 

connectivity under their broad definition of authority, I then, if I 

am not grazing, in accordance to my NRCS approved plan, could 

be found out of compliance. Thus, being required to obtain a 404 

permit for cattle grazing in a riparian area. 

Hearing the good gentleman to my right speak about the challenges they have in obtaining permits for constructing homes, I 

have no expectation whatsoever to do that. I am a small—extremely small business. I have got 55 momma cows. That is one 

truckload. I cannot afford an attorney or an environmental consultant. I would like to think I am a fairly intelligent individual being 

able to read the law, but I cannot honestly tell you what the expense would mean to my operation in terms of compliance with the 

environmental regulation. 

I want clean water. I drink the same water that my neighbors 

down the stream do. I want good, clean groundwater. I want good, 

clean surface water. But in my opinion, the best way we get there 

is through local decisions, and that happens at the local level and 

the state and county. 

Mr. HUELSKAMP. Thank you, Mr. Field. 

Mr. Parks? 

Mr. PARKS. If I can sum this up in three words, I would say 

cost, delay, and uncertainty. Those are going to be the big three 

things that come out of this. 

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I believe that increased regulated area is going to be significant. 

I think one concern that we have is we have developed a level of 

competency over the years understanding how to play this game, 

and now the rules are going to change significantly. So there is 

going to be a pretty significant learning curve for that, both for the 

regulated community, as well as those that are in charge of regulating. That causes delay, and there is a cost to that. 

We make substantial investments on these natural resources. We 

lease those many years down the road, and we are concerned that 

because jurisdictional determinations are subject to review every 

five years, what is going to happen to deposits that we had banked 

on mining that are now going to be off limits? So there is a lot of 

uncertainty that exists with this, and it creates the potential for a 

much, much broader regulated area. 

Mr. HUELSKAMP. Mr. Parks, one last quick follow-up as far as 

planning ahead. How many years out do you make purchases in 

order to secure those deposits? I mean, certainly more than five 

years? 

Mr. PARKS. Absolutely. It is not uncommon typically in a 15 to 

30 year range is what most of our leases’ terms are. 

Mr. HUELSKAMP. Thank you, Mr. Chairman. I yield back. 

Chairman GRAVES. Ranking Member Vela ́zquez. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. 

Professor Buzbee, you indicated in your testimony that while 

some small businesses have come out against the proposed rule, 

there are business interests on both sides. Can you explain why the 

split? 

Mr. BUZBEE. Yes. Based on past, if you kind of track who has 

supported changes, who has testified, and who has participated in 

some of the Supreme Court cases, there are very substantial interests linked to hunting and fishing as one area, and then there is 

also commercial fishing on a large scale, which is very much dependent on rivers and their tributaries. In addition, recreational interests are a huge business in the United States, and they very 

much depend on this. 

While not first level small business, municipal uses of the waters 

that we are trying to protect through the Clean Water Act has a 

direct effect on many businesses who depend on safe and good 

water for their businesses. So if you have looked historically, the 

reason why there has been—there was for about 30 years—really 

bipartisan support across party lines was that people realized it 

was both environmentally and good business to have improved 

clean waters. 

Ms. VELA ́ ZQUEZ. It appears the main fear of many is that the 

proposed rule would broaden the scope of the Clean Water Act and 

that there would be limitless claims of federal power. Is this an accurate criticism of the proposed rule? 

Mr. BUZBEE. No, it is not. It is not an accurate description. As 

I said, first, there is for the first time an explicit carve-out of a 

number of areas plus very importantly there is the explicit deletion 

of this longstanding commerce link grounds for jurisdiction. And 

then there are also several other grounds that have long been explicit in the Clean Water Act, and they remain. 

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Very importantly here is what the EPA and the Corps have done 

is they set three categories. They have some areas they call jurisdictional. Then they have others and they talk about them by category. And then they have others that still require case by case 

analysis for a significant nexus. And so while I do think there are 

concerns with delay, any time you have a case specific judgment it 

also gives people the chance, whether they are building houses or 

working on a cattle ranch, to argue about whether an area deserves 

protection. 

Ms. VELA ́ ZQUEZ. Thank you. 

Mr. Field, you indicated that there was zero outreach to the agriculture community before the rule was proposed and that you were 

told to ‘‘wait and see.’’ Why do you think there was this reluctance 

from EPA to have input from those stakeholders? 

Mr. FIELD. Thank you. 

I cannot answer why EPA failed to reach out. However, it is clear 

to see the result. We are experiencing it right now. 

Just if I may answer a follow-up to the professor’s comment regarding the section 505 of the Clean Water Act, I would argue adamantly that the citizen supervision is by far anything but clear. 

Having the opportunity as we drive down the road to simply pick 

up the phone and contact EPA and say, ‘‘I question an activity that 

is occurring. I think there is a discharge.’’ Click. That is an anonymous call. We, as land owners, the target of the call, never have 

an opportunity to know who is making the call, who is making the 

claim, and I have seen this happen in Washington State where the 

citizens—the opportunity to make anonymous calls leads to countless inspections, follow-up, and does nothing in terms of protecting 

water quality, but causing a continuous do-loop. 

But back to your point, in terms of outreach, it is beyond frustrating as to why EPA did not reach out. I know in February, at 

the National Cattlemen’s Annual Meeting, EPA was asked that 

very question, and they were told to wait and see what the proposal looked like. 

Ms. VELA ́ ZQUEZ. So now that you have this forum, you have 

the opportunity to tell me and the committee what the number one 

concern or complaint is that you have regarding the proposed rule? 

Mr. FIELD. The absolute vagueness. It is a dramatic overreach, 

in my opinion, of what the original intent was. And the idea that 

simply having again to show a bed, a bank, and an ordinary high 

water mark, then being able to make the deem that it is adjacent, 

that is limitless. 

Ms. VELA ́ ZQUEZ. Thank you. 

Mr. Woods, in your testimony, you point to an economist who 

found that EPA’s cost-benefit analysis was flawed because it used 

a time period in which there was low construction activity as its 

baseline. During the time, construction spending was 24 percent 

below that of the previous two years. Can you give us a sense of 

what the true cost would be if the analysis had used a period that 

was more reflective of the construction industry? 

Mr. WOODS. I can only give you a guesstimate, I guess, I would 

say. If you look at 2009–2010, yes, they are 24 percent behind 

2007–2008. However, remember, 2008 was the absolute cliff. Construction overall dropped by 80 percent. So if you take that as a 

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number, you can assume that there would be five times the permits 

if we were able to get back to normal construction. So if there were 

five times the permits, there would be at least a minimum of five 

times the cost, and I see very little benefit whatsoever. That is the 

other flaw in the thing. There will be cost, and in my estimation, 

no benefit. 

And if I might, the other problem you have here when you say 

a cost benefit and the way I think their method is flawed, because 

your real cost, not only the physical cost of hiring the attorneys 

and the consultants to go through this process, but your real cost 

in the construction industry is in the time because houses have 

very short time periods. They have very short commitments on 

loans and appraisals and those kinds of things, and if you stretch 

it out, those commitments are usually only six months. 

Ms. VELA ́ ZQUEZ. Okay. 

Mr. WOODS. If you stretch it out, you just lost those sales. 

Ms. VELA ́ ZQUEZ. Thank you. Thank you for your answer. 

Professor Buzbee, one other concern that has been expressed is 

how the proposed rule will affect their businesses, and among those 

is the fear that the new rule will be subject to lawsuits. My question to you is what safeguards are there in the act that will prevent 

businesses being subject to a lawsuit? 

Mr. BUZBEE. Well, first, the most important thing is first that 

you have an Army Corps of Engineers that making jurisdictional 

determinations does react with alacrity and reviews and gives people prompt feedback. That is essential. Citizen suits are actually 

very hard to bring, and that is actually only when people go into 

the courts. Whether phone tips or something like that would be a 

different issue. And so in the end they would have to basically 

show that there was a violation and convince a court and show that 

they were harmed by it, and that is difficult. And I think for that 

reason there are not as many—you do not hear about a lot of section 404 water-related—waters of the United States-related citizenlitigation suits. 

Ms. VELA ́ ZQUEZ. Thank you. 

Thank you, Mr. Chairman. I yield back. 

Chairman GRAVES. Mr. Tipton? 

Mr. TIPTON. Thank you, Mr. Chairman. I would like to thank 

our panel for taking the time to be here. 

I have to tell you, gentlemen, I think this is the greatest water 

grab that we have seen by the federal government in the history 

of the United States. The overreach of the EPA in terms of being 

able to control. 

Mr. Field, you are out of the west? 

Mr. FIELD. Yes, sir. 

Mr. TIPTON. This is a private property right in the west? 

Mr. FIELD. Absolutely correct. 

Mr. TIPTON. You have state law in the west. We have prioritybased systems, and we are now seeing the federal government trying to be able to step in to be able to regulate virtually all of the 

waters of the United States. 

When you read through this, ‘‘Traditional navigable waters, 

interstate waters and wetlands, territorial seas, impoundments of 

the first three categories in tributaries, tributaries of the first four 

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categories, waters and wetlands adjacent to the first five categories 

and other waters.’’ 

Does that sound like everything to you, Mr. Field? 

Mr. FIELD. It sounds to me, once that drop falls out of the sky, 

it is under EPA’s jurisdiction. 

Mr. TIPTON. It is going to be under the EPA’s jurisdiction. 

You were just talking about the ditch that you diverted off the 

stream to be able to get water to your cattle, to be able to irrigate, 

I assume, some of your fields so that you can actually grow hay, 

some feed for the cattle. How is this going to impact your business? 

Mr. FIELD. I honestly cannot tell you that. That is why I am 

here, sir. The picture that we had is an irrigation ditch. There is 

about an acre foot of water that flows through that to a few of my 

neighbors right now, and the question I have and the sincere fear 

is the riparian pasture that is between that irrigation ditch and the 

tributary that flows to a water of the U.S. and the question of am 

I in violation of the Clean Water Act? I subject myself to more liability today by putting the pictures on the screen and talking than 

I can afford to pay. 

Mr. TIPTON. Now, do you have ever sense if the EPA is allowed 

to be able to move forward with these rules, it is no longer your 

land, no longer your property, no longer your water; that it is now 

owned by the federal government and it will be controlled out of 

Washington? 

Mr. FIELD. That is most certainly a concern I think that is 

shared by every private landowner. And an additional fear that I 

have, and in speaking with Mr. Parks that I think would be equitable on other natural resource industries, is the concern that this 

rule, if it goes forward unchanged and unamended, that it may 

have a chilling impact on landowners who may not be directly involved. I lease all of my property for grazing. This may have a 

chilling impact and a landowner might say, ‘‘Boy, Jack, I would 

love to help you out and lease some pasture, but I am afraid your 

activity brings too much liability under the Clean Water Act. Go 

maybe try the neighbor.’’ 

Mr. TIPTON. Yes, I think, you know, because I think we can 

agree, everybody in this room is an environmentalist. We all like 

clean air and we all like clean water. You were describing for us 

an effort that you had made in terms of being able to put in some 

conservation. Now, if these rules move forward, if the overreach of 

the federal government is put into place, you are not going to be 

able to afford, nor would you be willing to move into those conservation areas. Is that correct? 

Mr. FIELD. Well, you are absolutely correct. I would certainly 

not partner with NRCS or my conservation district. I would try to 

do what I can at a much slower pace just on my own because—and 

do not get me wrong. The NRCS standards are excellent. They 

work perfectly. But I do not need to implement those practices exactly to the standard. I can get by with a three strand high tensile 

fence that I can build in a much faster time than a four or five 

strand barbed wire fence that delivers the exact same benefits at 

a much lower cost. And again, in my operation, I have got to try 

to spread the dollar just as everybody else on this panel as far as 

we can. 

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Mr. TIPTON. And, you know, just for the point of clarity, I happen to view our farm and ranch community as part of our national 

defense. We certainly need to be able to feed this country. Did you 

state, and did I write this down correctly, there was zero outreach 

by the EPA to the ag community. Is that correct? 

Mr. FIELD. Yes, sir. Questions were made in February requesting for meaningful dialogue and input, and again, being told to 

wait and see. And that is, unfortunately, not a very productive 

means of promulgating rule, and especially something that will be 

this effective. 

Mr. TIPTON. So an agency that says you will follow the rules 

does not follow its own rules when it comes to being able to reach 

out and find out what the business impacts are going to be. 

Mr. Parks, would you like to comment on that? 

Mr. PARKS. Yes, sir. I would. 

Fortunately, our company is a member of a great trade association who made us aware of these developments and keeps us informed and in the loop. The Home Builders Association, National 

Cattlemen’s Association, that is the type of—you know, that is why 

we are members of these associations. By and large, we do not 

have the management and the support staff to stay engaged with 

these types of issues. I would say for the most part the small business community has a cursory understanding of what is being proposed at best, and most folks have no idea the enormity that these 

changes could bring to the regulated community. 

Mr. TIPTON. I see I am out of time. Gentlemen, I thank you for 

your comments, and I share your concerns over this overreach by 

the government and the EPA. 

Chairman GRAVES. Mr. Schrader? 

Mr. SCHRADER. Thank you, Mr. Chairman. 

Well, I guess I find Professor Buzbee’s testimony on his five 

points actually pretty incredulous. I respect his previous experience 

and expertise, but the idea that this is a simple definition of waters 

of the United States, we have heard from people that live, work, 

and try and build our great country and the economy that that is 

not the case. This is a vast expansion. As a matter of fact, it is not 

legally responsive even to the courts. 

Let us go back to the Supreme Court decision, Professor Buzbee. 

That was supposed to be about navigable rivers or have some juxtaposition or nexus to navigable rivers. CWA does not include every 

bloody water in the United States of America. It is supposed to be 

dealing with those rivers that actually have some nexus to navigability. Otherwise, to the good gentleman from Colorado’s point, it 

becomes a grab of private property throughout the United States 

of America. That is not what the CWA was all about. 

I think the fact that this is actually not a broad interpretation 

is ludicrous. We have 56 different exceptions, and I bet Mr. Field, 

are you competent every single exception that they are going to 

come up with is listed right there? Are there going to be some others you are going to run up against? 

Mr. FIELD. You are absolutely correct. This is, again, the list, 

if you follow the 56 preapproved NRCS practices by the letter you 

would be exempt. But if you, again, my fence. Not having a NRCS 

plan, it does not meet the standard, I do not fall under—— 

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Mr. SCHRADER. Well, and I think that is unfortunately going 

to be the case for everybody. The commerce caused a deletion almost is a direct contravention from the plurality’s decision of the 

Supreme Court. You are supposed to still take the navigability 

piece into consideration. Even Justice Kennedy talks about significant nexus in his decision. There is none of that. None of that with 

EPA. We are on primary, secondary, tertiary, quaternary, septuagenarian relationships to navigability here. This is ludicrous. I 

mean, I do not think anybody in a straight face can say that this 

is anything but a huge grab of jurisdictional power at the end of 

the day. 

Let us talk about peer reviewed research here. I guess I am a 

little concerned about how committed the EPA was as they developed this rule to coming up with the accepted peer reviewed research when their own EPA draft study, ‘‘Connectivity of Streams 

to Wetlands to Downstream Waters: A Review and Synthesis of the 

Scientific Evidence,’’ was sent to the EPA’s Science Advisory Board 

to begin review on the same day they sent their final rule to OMB. 

If you are talking about peer reviewed science and actually watching science, they did not follow their own gosh darn science. That 

is an indictment that I think is beyond the pale here. All I know 

is that back in Oregon we have a lot of federal land, just like every 

western state legislator here. And we have a tough time dealing 

with all the federal rules on a regular basis. And what we are seeing here is unfortunately more rules, more regulations. 

I think Mr. Parks summed it up nicely, ‘‘More cost, more delay, 

more uncertainty.’’ Even if it does not go to a lawsuit—you know, 

Professor Buzbee, not every dang small businessman has a lawyer 

in their pocket that they have on retainer that they can fight these 

things. The threat of someone driving down the highway, seeing a 

practice and they are worried about it, all of a sudden you have got 

EPA or in my state DEQ coming in and investigating you, that 

costs a business money. This is an abomination. 

Thank you, Mr. Chairman. I yield back. 

Chairman GRAVES. Mr. Schweikert? 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. 

We did a little workgroup about a month ago with a number of 

lawyers who basically work in this area, environmental law, and 

we set sort of a game theory. We read through the rule and basically turned to those who it was within their specialty and said, 

‘‘Take it to an extreme. Take it to—maximize the language.’’ 

And so, Professor, I was going to ask for your help on a couple 

things that still echo in my mind. A river that only once every 100 

years—let me back up. A wash that only on occasion contributes 

to a navigable stream. Does that wash fall under these rules? 

Mr. BUZBEE. I think the way they have set them up, they are 

proposing to look by different regions to figure out, but if an area 

is a dry riverbed in an area that is, say, Arizona, an area that 

tends to be dry that has major rain torrents that come down and 

during those times water is carried on—— 

Mr. SCHWEIKERT. It would fall under? 

Mr. BUZBEE. I believe that it would fall under for those instances. 

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Mr. SCHWEIKERT. Okay, so, because I remember sitting 

through a meeting on this, lordy, 15, 20 years ago, where the salt 

riverbed, which we damned up before statehood, so it has basically 

been dry for 100 years except for that 100-year flood that we had 

a few years—actually, back in the 1980s. And at that time, EPA 

wanted to designate that as a navigable river. So the wash that 

goes behind my property, my home, so I have a property, a big 

wash under it, when we get our 14 inches of rain a year, which 

comes on a Tuesday—no, it really does—and that would contribute 

to that dry salt riverbed, and that dry salt riverbed once every 100 

years or so contributes down to the Colorado, would fall under the 

rule. Right? 

Mr. BUZBEE. I do not know about if there is a time limit. I am 

not aware. I mean, you are saying once every 100 years. I do not 

know. My guess is that would be because they seem to be talking 

more about with periodic rainfalls that would be heavy that would 

flow. 

Mr. SCHWEIKERT. So now we are into the definition of periodic, 

ultimately. 

And my concern is also in this rule there is also some cleanup 

of the language of, we will call it, ‘‘citizen litigation.’’ You know, the 

ability. And before speaking to one of the minority members you 

said, ‘‘Well, you do not think this happens often.’’ I, literally, in Arizona, have multiple law firms that literally their sole practice is 

suing the Forest Service. And that is how they make their money. 

Now, a lot of the suing is actually all about we will sue and get 

a settlement, and that is how we enforce policy. So under this, 

could I get sued for the dry wash behind my house that contributes 

to the dry salt riverbed that contributes eventually to the Colorado 

River once every 100 years? 

Mr. BUZBEE. Under the Clean Water Act, you would have to 

show that you had discharged a pollutant into the river from a 

point source, which would mean either industrial discharges, or if 

you went in and, say, built a concrete pier blocking it, then there 

would be a possibility of liability if it was jurisdictional. But you 

can only sue if you have that and there is an advance notice requirement. So they would have to give you an advance notice, and 

the state, and the fed—— 

Mr. SCHWEIKERT. But in that same concept, so in my property, 

I go out and dig and plant some desert trees, and I use the appropriate fertilizers for my area. Haven’t I just now walked over that 

line? 

Mr. BUZBEE. As far as I know, I am not aware of that from 

what I read. I am not clear if there would be. I cannot see one in 

that. 

Mr. SCHWEIKERT. Okay. When we modeled it and actually 

read it through line by line, and look, that may not be the intent, 

but my great fear is as we have seen over and over and over and 

over, when we end up—we create these—the government creates 

these rules and then over the next 10 years, 15 years, 20 years, litigation after litigation after litigation, expansion, expansion, expansion, all of a sudden I am not allowed to plant a desert tree in the 

back of my property because there is a wash. And I know that 

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sounds absurd, but I can model you through the language and 

show you how that reads in there. 

And with that, I yield back, Mr. Chairman. 

Chairman GRAVES. Ms. Chu? 

Ms. CHU. Yes, Professor Buzbee, there has been a representation 

that nearly every drop of water that falls would be regulated by the 

federal government and that even if not every drop of water is regulated, any place that water collects will be including all manmade 

bodies of water, ponds, ditches, floodplains, and even standing 

water in potholes. And yet, from what I read, the actual increase 

of jurisdiction would be three percent, which does not sound like 

every body of water that is out there. So could you please clarify 

that? 

Mr. BUZBEE. Yes. I agree. Your read is consistent with mine, 

that there is a clarification of the grounds for jurisdiction, but I do 

not see a substantial increase, and because of these explicit carveouts that are now part of the proposed regulations, areas that previously had been raised as a kind of parade of horribles of extensive regulation, I do not think you would find them. And so, for example, there was a mention earlier that just by having cattle grazing, that that would create a need for a section 404 permit. I am 

not aware of any basis for that. 

Ms. CHU. Is three percent a correct number do you think? 

Mr. BUZBEE. I have not looked at that. I have seen other people 

have estimated three percent, but I have not, myself, tried to figure 

out across the country the percentage. 

Ms. CHU. From what I read, 117 million Americans who consume water from public systems that rely on seasonal or intermittent water sources would have greater protection of their drinking 

water. Is that true? 

Mr. BUZBEE. Yes, it is. The science does show more and more 

that protecting rivers, riverbeds, and the buffers around them, especially, is critically important to maintaining water quality, both 

for human use, as well as fisheries and other purposes. And so especially for municipalities that depend on water from flowing rivers, maintaining the purity of that water is extremely important. 

Ms. CHU. Now, it is my understanding that the EPA is, in proposing these regulations, is actually trying to limit the pollution in 

our drinking water and therefore, they have define which waters 

may be subject to these kinds of pollutants and also carry pollutants downstream. Could you elaborate on that point and help us 

understand how the definition of waters facilitates the main goal 

of protecting constituents from pollution? 

Mr. BUZBEE. Sure. As you can read in the very extensive proposed regulation, a lot of the focus is trying to track, based on peer 

reviewed science, how pollutants move through waters from areas 

where the waters collect and then essentially move from tributaries 

into larger navigable-in -fact, waters, or traditionally navigable waters. And so basically, they found that both wetlands and tributaries do tremendous work, essentially functioning for free and reducing pollutants so what eventually goes into the larger water 

bodies is substantially cleansed by the process itself. And so in that 

respect it is critically important to maintain the purity of water. 

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Ms. CHU. And then in your testimony you said that several categories of waters are exempted from the rule. For example, waste 

water treatment systems, prior converted cropland, and several 

sorts of ditches. Could you tell us how and why these exemptions 

were made and why they are necessary? 

Mr. BUZBEE. There has been, I think, in some cases these were 

kind of in actual enforcement practices were largely followed, but 

there have been a lot of claims of excessive claims of jurisdiction. 

So looking at their explanation, the view was it was time not to 

leave them open to debate but just to make crystal clear these 

would not be jurisdictional, and that would remove them from any 

debate and argument. People would not be able to later say, oh, 

there was a significant nexus. No, these are removed from federal 

power. 

Mr. FIELD. Congresswoman, if I may, just to one question. You 

had done an excellent job of highlighting the problem with this rule 

when you asked Professor Buzbee if in his opinion this rule would 

only yield three percent of additional regulation. The problem is I 

can bring my attorney and they will argue the opposite saying, no, 

I do not think it is three percent; I think it is 10 percent. It is not 

clear to us what truly is going to be the regulated water under this 

rule. 

And the other question, in terms of a carve-out on a waste treatment plant, they are regulated under the National Pollution Discharge Permit. That is NDPES. That is a point-source polluter. 

That is apples and oranges. In this discussion, we are talking about 

non-point. 

Ms. CHU. Well, I still have another question, so if I could continue with Professor Buzbee. 

Mr. FIELD. Excuse me. 

Ms. CHU. In your testimony, you explained that what appears 

to be a vague language of the law will actually allow regulators to 

provide case by case decisions following site-specific inspections. 

Can you explain how the law’s reliance on case by case analysis 

will actually allow regulators to adhere more closely to the intent 

of the Clean Water Act? 

Mr. BUZBEE. Sure, I would be happy to. 

This is partly the outgrowth of Justice Kennedy’s opinion in the 

Rapanos case when he called for a significant nexus analysis so you 

would not be regulating marginal, insignificant waters. And so the 

Army Corps and EPA, in proposing this regulation, have basically 

tried to figure out what by category does need to be regulated and 

then carve-out certain areas, these are ones that need case-by-case 

analysis. And so those ones, it is not clear until you look in particular context. They have sought comment. I assume the colleagues here at the table will provide comments that would analyze 

by different regions why certain areas might be more likely to be 

jurisdictional or not. That is something they sought. 

Ms. CHU. Thank you. I yield back. 

Chairman GRAVES. Mr. Collins? 

Mr. COLLINS. Thank you, Mr. Chairman. And I want to start 

by thanking Mr. Schrader for his excellent summary of the issues 

that we are bringing. Mr. Schrader and I cosponsored a letter to 

the administrator of the EPA, as well as the secretary of the DeSBREP-219 with DISTILLER

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partment of Army that was signed by 231 members of Congress. 

It is not easy to get members to sign such letters, let alone 231 letters on a bipartisan way, including the chairman of every committee in Congress. 

So when Professor Buzbee speaks about the impact or what he 

would suggest is not, as I agree with Mr. Schrader, the greatest expansion land grab, power grab that has ever occurred in the history 

of the EPA. And certainly, I think our testimony from Mr. Field, 

Mr. Parks, and Mr. Woods confirms that. 

So for the record, I would like to point out to Professor Buzbee, 

not to nitpick, but I think it is important, Professor, when you were 

questioned by Ms. Chu about certain issues, let me reiterate how 

you responded. ‘‘I am not aware. As far as I know. A possibility. 

I do not know. My guess is. I believe that.’’ 

Those were your words, Professor. So when we talk about uncertainty, and I hear our farmers, and Mr. Schrader and I were asked 

to lead this letter by the Farm Bureau, our farmers, which grow 

the food that feed Americans and actually feed many around the 

world, are scared to death of this overreach and what it might 

mean. And again, it goes back to uncertainty. It goes back to the 

fact that outreach was not made to small business, to the farming 

community and the like. Frankly, the rule needs to be returned. 

That is what Mr. Schrader and I and 229 other members of Congress have simply asked at this point. They got too far out ahead 

as has been pointed out. 2008, 2009, 2010. It is fundamentally 

flawed as a beginning data point. And the fact that we have not 

done a true economic analysis is, I think, a reasonable request that 

we have made. Simply return the rule. Let us take this off the fast 

track that it is on. Let us get back to regular order. Let us do what 

we should be doing with the Farm Bureau, the Home Builders, the 

construction trades. We are not making a mountain out of a mole 

hill. 

And my other concern, and maybe I will just ask for a brief comment, are the economy and jobs. We have an economy that is sputtering, that has lost steam. Our kids are graduating. They do not 

have the jobs. We need to grow our way out of the deficits and debt 

problem that we have and just, you know, Mr. Field, the simple 

kind of question, does a rule like this—because I certainly believe 

it is another hindrance in growing our economy. Uncertainty brings 

lack of investment. Certainly, I would like your opinion. 

Mr. FIELD. You have just hit the nail on the head, sir. The lack 

of clarity on this rule, regardless of the industry you are involved 

in, not knowing, not being able to tell your lender with certainty 

that the activity you are about to enter into is not going to carry 

the potential legal liability of a violation of the Clean Water Act 

or the ability to have the citizens suit provision of section 505, it 

is unthinkable. 

Mr. COLLINS. Uncertainty means lack of investment. 

Mr. Parks? 

Mr. PARKS. Yes. Just to add to what Mr. Field indicated. Most 

of our holdings, I would say roughly 80 percent, are leased. These 

issues affect private landowners. It is not just Memphis Stone and 

Gravel Company. So the bottom line is if we are able—if the rules 

require more area subject to regulation, then that certainly can 

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limit the amount of resources that we can recover. And that translates into cost and value to the property owner, as well as us. 

Mr. COLLINS. Mr. Woods? 

Mr. WOODS. Yes. It is going to have a devastating effect. I will 

give you an example. 

One of my subdivisions in Mr. Graves’s district has over 800 

units. If it were built out, it would be subject to this. It is, in fact, 

the one that I mentioned took two and a half years and several 

hundreds of thousands of dollars to get the permit in the first place 

under the old rule. I would not go forward with getting it under 

the new rule. But if you take that and just extrapolate it, every 

house or every unit by our standards means about 3.7 jobs. You 

know, if you look at the tax bills and burdens and what they generate, it is in the thousands of dollars to the municipality and the 

state and federal government, and that is just one subdivision. I 

am not the big developer in Kansas City. I am just one of the medium-size guys, but you would have to take that number and add 

it and then go across the country and say how many are there. You 

are talking millions of jobs that will be lost simply because we cannot get the permits. 

Mr. COLLINS. Thank you all very much. 

Real quick, Mr. Parks. Our time is expired. 

Mr. PARKS. Congressman, if I could just add that our biggest 

customers are DOTs. Mississippi Department of Transportation, 

Tennessee Department of Transportation. They have to deal with 

the same issues that we as industry have to deal with in determining what is jurisdiction and getting permits to do what they do. 

Mr. COLLINS. All right. Thank you. 

Thank you all very much. I yield back, Mr. Chairman. 

Chairman GRAVES. Mr. Payne? 

Mr. PAYNE. Thank you, Mr. Chairman, and to the ranking 

member. I appreciate everyone’s testimony today. 

Mr. Field, in your testimony, you mentioned that for business 

and moral reasons you protect the quality of water around your 

ranch. 

Mr. FIELD. Yes, sir. 

Mr. PAYNE. That is very admirable. However, in my home district, which takes in Newark, New Jersey and surrounding communities, we have the Passaic River, which was a place where a lot 

of industry was created in the 1800s and 1900s, and really drove 

a lot of the industrial revolution around cities. Newark is the third 

oldest city in the country. But it became a dumping ground. Agent 

Orange was produced in Newark, New Jersey, and a lot of issues 

that we still have with the river come from the toxins and those 

type of different agents. So do you really think that we can rely on 

moral integrity of businesses to not pollute our nation’s waters? I 

mean, everyone is, you know, and I commend you, and it is around 

your ranch and that is important to you because that is where you 

are, but do you think we can rely on businesses not to pollute or 

follow your example? 

Mr. FIELD. Well, that is an excellent question, Congressman, 

and I certainly understand your concerns where you sit. And you 

also bring up an excellent point. Effectively, what I would recommend, I think the best decision for your problem is—the solution 

SBREP-219 with DISTILLER

23 

will be found locally in New Jersey, not by me in Washington State 

saying, well, I think the best way to clean up your reach of river, 

the local decisions. Nobody on this panel is saying we do not think 

we need to be able to regulate and protect water quality. When I 

go out to the tap to get a drink of water, I want to make sure it 

is safe. I want to make sure you and your family have safe water. 

But I do not believe creating a rule that does not clearly define, 

and as one that will be covered under the regulation, I need to 

know clearly is this jurisdictional? Is this not? Just what it means. 

But to your point, in terms of being able to address your water 

quality issues, I absolutely think that solutions can be found locally, watershed by watershed. The most effective way to address 

the issue on your river is to get the local—all the stakeholders together, whether it be a total maximum daily load, to be able to get 

everybody there that is on the water body, identify what the issue 

is, and collaboratively come up with a solution. If there is buy-in 

from everybody, you can certainly address the issue. 

Mr. PAYNE. Yes, and that is a very good point. The key there 

is buy-in. But, you know, as I stated, you protect the water around 

your ranch. A lot of these larger industries, the people that are involved in that business, do not live in that community, so it does 

not matter very much to them what their water quality is in that 

area. So my concern, and what we are trying to do, is make sure 

that we can make sure that everyone has the same opportunity in 

their community to have safe drinking water. 

Mr. FIELD. Are these all nonpoint facilities or are these point 

source facilities as well as nonpoint? Because I am a nonpoint. I 

am a nonpermitted facility right now. If you are talking about a 

chemical manufacturer, that is a point source. If they are permitted 

to discharge whatever their discharge is into a water body, they are 

regulated right now under EPA, and I am not sure if you are delegated, but you may have a state authority regulating that as well. 

But there is regulation, and if they violate the numbers in terms 

of their permit, that is most certainly something that can be penalized. But it is a little difficult if we are talking about the applicability of point source regulation to nonpoint operations as well. 

Mr. PAYNE. Well, I mean, you know, and that is quite true, but 

what we find is people tend to like to cut corners, and even though 

they are regulated, there are situations where we find that they 

have not followed the rules. So that is the actual important piece 

of that. 

According to the EPA, over 117 million people drink from water 

systems in areas that currently lack full and clear protection under 

the law. Do you think it would be fair to exempt the polluter from 

the Clean Water Act, which would force them—force the community to pay for the clean-up of its water supply? I would like to ask 

Professor Buzbee—the whole panel, please. 

Mr. BUZBEE. I think that the need for clear prohibition, so people know what to do so they are not disadvantaged. Then business 

has been shown again and again. So having clear rules, I think everyone at the table here would agree, clear rules are important, but 

it is important not to rely on just self-policing, but that does tend 

to be a recipe for disaster. 

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Mr. PAYNE. Okay. And my time is up, but quickly, if you could 

each give a quick brief answer. 

Mr. Woods? 

Mr. WOODS. I am not sure that I have the expertise to address 

your problem directly. As an old mayor, I believe that the best people to deal with it in the community are those people in the local 

community. They have the best knowledge of it, and I think that 

they can come up with the best solution, quite frankly. 

Mr. PAYNE. Thank you, sir. 

Mr. PARKS. Congressman, if I may, all of our projects require 

extensive site review. We open it up at the local level. There are 

tremendous opportunities for public participation. Most of our 

projects are governed by site-specific conditional use permits where 

conditions can be imposed on that at the local level. Both of our 

states, Mississippi and Tennessee, are authorized to implement the 

federal NPDS programs. 

And with regard to water pollution in general, our company—the 

companies in our industry, and I would suggest probably to most 

industries—you cannot just allow water to discharge off your site 

uncontrolled. There is an extensive framework that is there already. How you manage any waters that leave your site, whether 

it be processed water or stormwater, we have to develop a pretty 

extensive stormwater prevention plan for every one of our projects 

that details exactly how we will manage stormwater runoff before 

it can impact anything. And those sites are open for inspection. 

They are inspected by state and federal regulators. 

Mr. PAYNE. All right. Thank you. 

And Mr. Field, I have gone way over my time so I will yield back 

to the chair. Thank you. 

Chairman GRAVES. Mr. Luetkemeyer? 

Mr. LUETKEMEYER. Thank you, Mr. Chair. 

It is interesting that we are discussing this rule today because 

I know the chairman and I fought this battle a couple, three years 

ago. Whenever the various powers that be and tried to do the same 

thing with—I am going to take the word ‘‘navigable’’ out of the 

Clean Water Act. And here we are again today back in the same 

situation. 

And so I know Mr. Buzbee, with his comments, indicated that we 

have had the Clean Water Act basically in force, and with the EPA, 

the authority to make rules for over 30 years, and I think we have 

seen probably some good things come from out of that from the 

standpoint we have much better clean water today, but as we see 

over those few years, the last number of years, bureaucracy tends 

to expand its limits or expand its authority, and it seems that we 

are in this process now. 

If you look at what is going on with the administration, this is 

the biggest fear why we are looking at this rule in this light is the 

tremendous fear of overreach. And I think that the gentleman from 

Oregon and the gentleman from New York behind me here, both 

were very articulate in explaining the concerns that they have, the 

amount of overreach here from the standpoint that there is this 

fear that it continues to be that this administration will overreach 

bureaucratically. Every time there is a rule or regulation, it goes 

SBREP-219 with DISTILLER

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one step beyond what their intent is, and therefore, it impacts our 

business community in a very negative way. 

And I appreciate all of you being here today. I think if this rule 

goes forward, I see no way that it does not wind up in the Supreme 

Court, because this is something that is going to impact all three 

of the business people before us today in a way that is going to 

drive you either to have an extreme amount of cost or drive you 

completely out of business. 

And so I guess my question to each one of the three of you to 

begin with is Mr. Field, if this thing goes forward, are you going 

to be able to stay in business? 

Mr. FIELD. I honestly do not know. It would depend on whether 

or not EPA would determine the parcels that I graze to be within 

their jurisdiction or not, and I cannot honestly answer that. I am 

sorry. 

Mr. LUETKEMEYER. Mr. Parks? 

Mr. PARKS. Well, the question may be at what cost will we stay 

in business? I mean, there are limits. I mean, assuming that the 

cost increases can be supported, perhaps. But, you know, who is to 

know? There is a limit on what we can absorb. What it will definitely do is reduce the amount of resources that we can recover and 

will make permitting a much more complicated endeavor. And as 

a small company, we try to manage as much of that in-house as 

possible. We try to avoid going to consultants because that is a cost 

that we cannot afford to bear because that is a tradeoff. 

Mr. LUETKEMEYER. Mr. Woods, I think you kind of already 

answered that before, but do you want to get on the record one 

more time? Get one more hammer at this? 

Mr. WOODS. I would, if you do not mind. Quite frankly—— 

Mr. LUETKEMEYER. Push your button, please. 

Mr. WOODS. I am sorry. 

Quite frankly, I doubt that we would stay in business, and I 

doubt that most builders and small developers would stay in business. You have to remember one thing. The costs that are incurred 

are before you can do anything, so there is not a return until you 

get the delineation of whether you are involved or not involved, and 

that does not mean that your plans are going to be accepted. 

Mr. LUETKEMEYER. There is a huge capital outlay here before 

you ever get one cent of return on your investment, and it all has 

to be recovered at some point, hopefully from the sale of your property. 

Mr. WOODS. And I think we do not understand small business. 

For the most part, small business is mom and pop, and it is mom 

and pop making a living for their family so that the kids can go 

to college. And if you have got a decision to make between spending 

$200,000 to see if you might be able to develop a small piece of 

ground and come up with a plan that might then, two, three, four, 

five years later get a permit, I can tell you the kids’ college or the 

dental bill is going to win out. 

Mr. LUETKEMEYER. One of the things that concerns me, it 

seems like this is a solution in search of a problem from the standpoint that what are we trying to solve here? 

Professor Buzbee, can you tell me what we are trying to solve by 

the expansion of this rule to go as far as these gentlemen think it 

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26 

is going to go? Where is the problem that we are solving when you 

impact jobs at this level that they are talking about today? 

Mr. BUZBEE. I guess, first, it is important to remember the 

Clean Water Act is not limitless in its reach, and so you do have 

to show that something is a tributary wetland, adjacent wetland. 

Mr. LUETKEMEYER. These gentlemen have all testified here 

today that they believe if they interpret this to the lengths at 

which you can go, at which attorneys will stretch the law, which 

has been the case time and time again, especially with this administration, this is where we are headed. So where is the problem 

that this is trying to solve? 

Mr. BUZBEE. My sense here is that this is inaccurate; that people will be able to build, and people that can build will continue 

to have thriving cattle businesses. Not everything needs to be put 

in a tributary or a wash or a river or a wetland. There is plenty 

of land where businesses can thrive. The Clean Water Act is really 

about where you put these things and where you discharge pollutants. 

Mr. LUETKEMEYER. Well, Professor, I appreciate you living in 

a utopian society. Unfortunately, these three gentlemen do not live 

there. They live in the real world, and they have explained how the 

impact of this is going to be in the real world on real people on real 

jobs and real livelihoods, and that is what this Committee is all 

about today. 

Mr. Chairman, I yield back. 

Chairman GRAVES. Mr. Bentivolio? 

Mr. BENTIVOLIO. Thank you very much, Mr. Chairman. 

I would like to thank the chairman for holding this important 

hearing, and I would also like to thank the witnesses for taking 

part today and helping to enlighten us about the new waters of the 

United States rule. 

When I read your testimonies, it made me wonder if the EPA 

purposefully makes vague and controversial rules simply so that 

bureaucrats over there can see their office in newspaper headlines. 

Just a few weeks ago, I held a hearing in my district about the 

impact of federal regulations on small businesses in Michigan. Mr. 

Woods, one of those who testified, was Richard Kligman of Superb 

Custom Homes out of Plymouth, Michigan. He, too, brought the 

waters of the United States rule and concluded it this way—these 

federal consultations related to the Clean Water Act are just another layer of red tape that the federal government has placed on 

small businesses, and it is doubtful the agencies will be equipped. 

This nonsense has to stop, Mr. Chairman. Everyone here wants 

to protect the environment, but we also want to help people in our 

country succeed and prosper. I do not think that those are mutually exclusive so long as the EPA is proposing rules that are easily 

understood and make common sense. Unfortunately, this time it 

does not seem to. 

But I would like to go one step further. Mr. Chairman, you know, 

I went to—my wife said we had to replace the water closet in our 

bathroom, and so I went to her favorite hardware store and tried 

to find a water closet, a toilet, that would just take enough water, 

you know, and they said, ‘‘No, I am sorry. The only toilets we can 

see now are regulated to how much water can be flushed down at 

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a time.’’ And I asked the salesman why that is. He says, ‘‘Well, we 

have to conserve water.’’ And I said, ‘‘Well, you know, I live on a 

farm. We have a well and a septic. I recycle all my water. You 

know, that is how it works.’’ 

The government has this ‘‘one size fits all.’’ I also have a pond 

on my farm, and I have been recently notified after this hearing 

that the EPA is really concerned about the toxins in the pond. 

Well, you know, we live on a dirt road in the country, and all the 

ditches on the dirt road somehow, you know, there is about 60 

acres, feeds my pond, which then drains about two miles further 

downstream into some—I think it is the Rouge River eventually. 

But why am I suddenly responsible for the toxins that run off the 

road into my pond? Right? So do I have to—is the EPA going to 

regulate ditches like that and how they run into ponds? 

I understand some of these concerns, but I have made those arrangements on my own without the EPA. I built berms made of 

gravel. And that naturally cleans up. Sand and gravel naturally 

cleans up the toxins that were reaching my pond. So I am wondering, do I have to get EPA requirements and permits to do that? 

Or is that something I can do on my own because that is probably 

the wisest thing for me to do? Why do I have to have a government 

regulator telling me what I have to do for every single facet of my 

life? 

Mr. Parks, should I ask a question now? Sorry, I do not like the 

EPA. As far as I am concerned, China needs the EPA. So if we can 

send 15,000 employees to China for five years, I think we would 

all be better off. 

Mr. PARKS. Well, I would say ditto, but we do have to work with 

these folks, so I am not going to go there. But you do hit the nail 

on the head. As I read through the definitions, it is hard for us to 

see what would not be jurisdictional, or potentially could be interpreted that way. And that is really the problem. It opens a lot of 

things up to interpretations. Even exclusions are not clear. One 

part removes artificial ponds created by dyking dry land, yet a tributary can be a manmade pond or a ditch. So which is it? I mean, 

we create a lot of ditches. We create a lot of basins, a lot of ponds, 

that can sit there for 10, 20, 30 years before we are ready to close 

them down. And so it is a big question for us. Are we creating all 

this jurisdictional area through our business processes? 

Mr. BENTIVOLIO. Thank you very much. I think I have done 

my ranting. Thank you very much, Mr. Chairman. I appreciate it. 

Thank you. 

Chairman GRAVES. Mr. King? 

Mr. KING. Thank you, Mr. Chairman. I thank the witnesses for 

your testimony. 

I have a little bit of reminiscing I went through as I listened to 

some of this, too, but I wanted to turn to Professor Buzbee first and 

ask this question. We have got the issue out here of significant 

nexus, but there is another term that is back in the dusty reaches 

of my mind called ‘‘waters hydrologically connected to.’’ And I 

would ask Professor Buzbee are you familiar with the term? And 

would you define that for this Committee, please? 

Mr. BUZBEE. The exact term I am not sure, but I think what 

you are probably referring to is in the case Riverside Bayview 

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Homes. A unanimous Supreme Court upheld jurisdiction for waters 

that essentially were wetlands near other waters and part of the 

grounds for that was the importance of taking into account hydrologic connections and the importance that they serve. 

Mr. KING. But what is a hydrologic connection? 

Mr. BUZBEE. A hydrologic connection in that case and subsequent cases and the new regulations as I understand it has to do 

with essentially whether water is moving from one place into another which they look at through several different kind of functional analyses. 

Mr. KING. Stagnant water would not be hydrologically connected? 

Mr. BUZBEE. I am sorry; I missed it. 

Mr. KING. Stagnant water would not be hydrologically connected? 

Mr. BUZBEE. If the water is truly isolated so it is not flowing, 

no, it would not be. 

Mr. KING. I see. So then it would not be necessarily the flows; 

it would be the connection. So if you had two ponds and a conduit 

between them, say a small—just a stagnant stream, but as long as 

you could say, float a small boat, that would be hydrologically connected? 

Mr. BUZBEE. I do not believe so. I do not think that is correct. 

The way they walk about it, they look at different regions. I think 

what you would be describing would be what appears to be an isolated water and then the question is whether that, because of 

its—— 

Mr. KING. But if it is two ponds and there is a very small, nonflowing stream between the two of those, would those ponds be 

hydrologically connected? 

Mr. BUZBEE. The way hydrologically connected worked is I 

think they were ultimately talking about ultimately connecting to 

navigable waters or navigable-in-fact waters. 

Mr. KING. Yes. Yes. And I agree with that definition. And I 

bring this up in part of this discussion about significant nexus. I 

think I will do this. I will tell the narrative. 

Back in about 1994—first, I would let the Committee know that 

I have spent my life in soil conservation, water quality. I built 

more terraces probably than anybody in Congress or waterways or 

any kind of retention ponds you want to describe. It has been my 

life. And I remember walking into my construction office one night 

in about 1994 and there sat a farmer. And he said, ‘‘Did you see 

this DNR rule that they have published for comment?’’ And I read 

the rule and it said, ‘‘These 115 streams are proposed to be protected streams. These streams, to their geographical boundaries 

and ‘‘waters hydrologically connected to them.’’ And I went straight 

up in the air because I believe in property rights, and I oppose 

property takings by government or anybody else. At that time it 

was a Fifth Amendment property rights issue before Kelo and went 

straight to Cherokee, Iowa, for the public comment hearing. And I 

asked them the question, ‘‘Define it for me, hydrologically connected.’’ They said, ‘‘Well, we cannot.’’ Then I said, ‘‘Then take it 

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not define it and you cannot take it out? Then if you cannot define 

it, you cannot tell me why it is there.’’ 

Then the next night the hearing was in Algona, Iowa, and that 

was two hours up there and they saw me coming and said only one 

question per customer. Well, you can imagine that I did not walk 

away from that microphone until I had asked a lot of them. Subsequent to that I ran for the Iowa Senate because I had been boxed 

out of a hearing as a witness. They would not really let me testify 

to the answer to this. 

So this goes pretty deep to me. And when I see the language here 

that we are dealing with and the stretch of the rules—I know how 

rules get stretched, and I have lived it, and so have a lot of the 

members of this Committee. We are dealing with the traditional 

navigable waters of the United States. That goes back to 1948—or 

excuse me, 1848, when the Corps of Engineers was granted the authority to remove the debris from the navigable waters. Now we get 

added to that, the definition has been expanded through litigation 

and some statute, but it also now includes interstate waters and 

wetlands, the territorial seas, impoundments of the first three categories and tributaries, tributaries of the first four categories, and 

number six, waters and wetlands adjacent to the first five. But the 

language of ‘‘other waters,’’ which is all these categories that I have 

described, including riparian areas, floodplain, tributaries, significant nexus. When I see that language that says ‘‘significant nexus,’’ 

that is the 2014 term that substituted for ‘‘waters hydrologically 

connected to.’’ And how will they define hydrologically connected 

to? It is real simple. It is whenever two water molecules touch each 

other you can make the argument that they are hydrologically connected. You can argue the case law that is out there and how it 

is being interpreted, but in the end, if two water molecules touch, 

it is hydrologically connected. If you take a piece of nice, good, well 

moistened, freshly rained upon Iowa black soil, it is about 25 percent moisture today. Water molecules touch. They go all the way 

up through streams that water your cattle and all the way up to 

these homes that you are developing, and all the way into 

everybody’s property in the United States only by the stretch of the 

definitions that are put in these rules. 

And I would just pose one final question quickly to Professor 

Buzbee, and that is do you believe that if the federal government 

regulates the complete usage of property away from our property 

owners—whether it is the ranchers, whether it is developers—if 

they regulate the utilization of that property away and render it 

without value to the owner, is that a takings under the constitution? 

Mr. BUZBEE. I think if you are phrasing it like the Lucas case 

by the Supreme Court that a 100 percent taking of all use would 

be a taking under that precedent. 

Mr. KING. Useless to the owner for the purposes of—— 

Mr. BUZBEE. I think it is rendering it without value actually 

was the way it talked about it. So, again, it is more complicated 

than the subsequent cases. 

Mr. KING. We are close to a yes though, and I will settle for 

that. And I appreciate all your testimony, and I yield back to the 

Chairman. Thank you. 

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30 

Chairman GRAVES. I have a question for Mr. Woods. 

In your testimony, you stated that any waters or wetlands within 

a floodplain can be subject to the Clean Water Act. I was just curious—or Clean Water Act jurisdiction—how that is going to affect 

your industry, your business. What impact is that going to have? 

Mr. WOODS. I will speak to it relative to the Midwest and the 

Plains States, wherever you want to put us. As you well, now, if 

you are in Independence, Missouri, Blue Springs, Missouri, you are 

close to the Missouri River. You are close to the Little Blue and the 

Big Blue and the Caw. And we have got tons of what has been 

called for years ‘‘bottom ground.’’ Your first problem is you cannot 

get yourself too far away from a floodplain or a wetlands. 

The second problem that you have in that definition, and that is 

the one that probably bothers me more, in too many cases the 

maps that are used and have been used to delineate these nexus 

are erroneous. We have seen situations, one specific situation in 

Riverside, Missouri, where the floodplain was halfway up the hill. 

It is not where the creek is. Now, I defy you to put a floodplain 

halfway up a hill and not in the creek. And it took us almost two 

and a half years to get a determination and a change in the flood 

map. We had to go in and prove that the water did not usually run 

across the hill halfway up; it usually ran at the creek. 

So those are the kinds of problems you are going to run into, is 

it is not that it is truly a floodplain or it is not that it is truly a 

wetlands. 

The case that I pointed out here, the very first thing we did in 

the subdivision that I am talking about in Independence, Missouri, 

just to put it into perspective, is we had consultants come in and 

walk our site. It is almost 500 acres. It is a bottom land field, but 

it is not a floodplain. And actually it had been prior converted, 

which I just find out now may have changed. But it had been 

farmed for 150 years. There were none there. There were none 

found. And yet we still ended up subject to because we were close 

enough; we were adjacent to some things. We felt it best that we 

move forward, try to move forward in a very positive way. I 

thought we were being wise. We brought everybody out, let them 

tour the site and tried to put in place the very best practices and 

show off, and as I was told by the city engineer in Independence, 

we were justly rewarded for our good deeds. Two and a half years 

and $250,000 later we got a permit. That is what concerns me the 

most. 

Chairman GRAVES. Well, and you mention, too, and there are 

some carve-outs as has been pointed out by Professor Buzbee. However, it also states ‘‘adjacent to jurisdictional waters.’’ And that is 

what concerns me as much as anything else. 

And in closing, I want to kind of build on what Mr. Luetkemeyer 

said as well. We fought this before. Removing the term ‘‘navigable’’ 

out of the Clean Water Act. And we fought it under two different 

majorities. And it failed Congress. This failed the people’s house by 

folks that are voted on by constituents. And now here we are fighting it coming at it from the regulatory standpoint by individuals 

who are not elected, who are not responsible to anyone, and that 

is the most frustrating part. The will of the people was done, and 

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this was defeated. And now here we are going through this process 

under agency proposed rulemaking, and it is frustrating. 

But all of this testimony has showed us that the waters of the 

United States or this proposed rule is going to have a significant 

impact on small businesses. And the EPA and the Corps failed to 

do the assessments that they were supposed to do under the Regulatory Flexibility Act. And that is another thing that bothers me as 

much as anything else because when agencies fail to comply with 

the RFA, the result is always poorly crafted regulations, and it is 

going to impose a lot of unnecessary and costly burdens on small 

business, and this is going to be the case. We are going to be closely monitoring this and the development of this rule, and we are 

going to be engaging all of the agencies until they come in full compliance with the RFA. 

And with that, I would ask unanimous consent that all members 

have five legislative days to submit statements and supporting materials for the record. Without objection that is so ordered. 

And with that, I appreciate all of you coming in and your testimony. The hearing is adjourned. 

[Whereupon, at 3:41 p.m., the Committee was adjourned.] 

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A P P E N D I X 

Opening Statement: Congressman Blain Luetkemeyer (R-MO-3) 

I appreciate the opportunity today to examine the impacts of the 

proposed ‘‘Waters of the US’’ rule on our nation’s small businesses. 

This proposed rule will vastly expand federal jurisdiction over our 

nation’s waters and represents one of the most expansive federal 

land grabs in history. It will extend federal regulations to a whole 

host of waters that the CWA was never intended to apply to including ditches, ponds, and seasonally wet puddles. 

If finalized, this rule will stall development, cost jobs, and put a 

plethora of activities and decision-making under the heavy hand of 

federal regulation. With the stroke of a pen bureaucrats in Washington can do immense damage to our economy and, unfortunately, 

this appears to be just another example of this overreaching administration putting the federal regulatory train into overdrive 

while disregarding the impact their actions have on the lives of 

hard working Americans. 

Similar proposals have been defeated numerous times in Congress but their failure seems to only embolden this administration 

to expand its power through rulemaking. As with any policy of 

such vast impact, the American people deserve to have their voices 

heard through their elected representatives. Moreover, entities that 

will be affected have a right to be at the table to have their concerns addressed. 

Despite claims to the contrary, this proposed rule will establish 

broader, convoluted definitions of regulatory categories that will 

create even more uncertainty for our nation’s small businesses. 

Under the definition regulators will be given far-reaching authority 

to subjectively apply jurisdiction over all types of waters. This gives 

little confidence to small businesses trying to stay within the law. 

One thing is clear from the proposal; this rule will drastically increase the number and types of activities that are subject to CWA 

permitting. Obtaining such permits often require expertise, time, 

and resource that many small businesses simply don’t have. Permitting will in turn trigger additional review requirements under 

laws including the National Environmental Policy Act (NEPA) and 

the Endangered Species Act (ESA). Faced with these onerous and 

prohibitive costs small businesses will be forced to decide whether 

to spend massive amounts of money on permitting, drastically alter 

their activities, or close-up shop. 

As our economy struggles to regain its footing, small businesses 

will provide the engine that drive job creation and economic 

growth. It is frustrating that proposals like these threaten the very 

growth that our nation needs. Industries such as home building, 

farming, and energy exploration have been bright spots in our economic recovery and the proposed rule puts them directly in the 

cross hairs of the federal regulatory regime. 

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I look forward to receiving testimony from our witnesses to illustrate the potential impact this proposed rule will have on their respective businesses and industries. 

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Testimony 

Jack Field 

Owner, Lazy JF Cattle Co. 

with regards to 

Will EPA’s ‘Waters of the United States’ Rule Drown Small 

Businesses? 

submitted to the 

United States House of Representatives 

Committee on Small Business 

Representative Sam Graves, Chairman 

submitted by 

Mr. Jack Field 

Washington Cattlemen’s Association 

National Cattlemen’s Beef Association 

May 29, 2014 

Washington, DC 

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Good afternoon, my name is Jack Field. I am a cattle rancher 

from Yakima, Washington and the Executive Vice President of the 

Washington Cattlemen’s Association. WCA is an affiliate of the National Cattlemen’s Beef Association of which I am also a member. 

Thank you to the Chairman and Ranking Member for allowing me 

to testify today on the impacts of the Environmental Protection 

Agency and the U.S. Army Corps of Engineers’ proposed expanded 

definition of ‘‘waters of the United States.’’ I will also provide my 

concerns with the USDA-Natural Resources Conservation Service 

(NRCS) interpretive rule that was promulgated alongside this proposal. 

First and foremost, the cattle industry prides itself on being good 

stewards of our country’s natural resources. We maintain open 

spaces, healthy rangelands, provide wildlife habitat and provide 

the country with those juicy ribeyes we all love to throw on the 

grill on summer days like today. But to provide all these important 

functions, cattlemen must be able to operate without excessive federal burdens, like the one we are discussing today. I don’t think the 

negative impacts of this definition can be overstated. As a producer 

and the head of a state association, I can tell you that after reading 

the proposal rule it has the potential to impact every aspect of my 

operation and others like it by dictating land use activities in 

Washington state from 2,687 miles away. I would also feel confident in saying that I believe it will actually have a detrimental 

impact on water quality. 

After reading the proposal I can say that one thing is clear, the 

proposed definition is not clear. If the agencies’ goal was actually 

to provide clarity than they have missed the mark completely, 

making the status quo worse, not better. The proposal would include ditches as Water of the U.S. if a regulator can distinguish a 

bed, bank, and ordinary high water mark. The proposal also would 

make everything within a floodplain and a riparian area a federal 

water by considering them ‘‘adjacent waters.’’ The result could be 

to eliminate the use of my summer pasture, which is located wholly 

in a floodplain. I will show you what I think it could mean for my 

ranch and other small businesses like it. 

In total I own and manage 55 cow/calf pairs and 10 replacements, or 120 total head of cattle, which is the average number of 

head for a cattle rancher in the U.S. There are some bigger and 

some smaller, but I’m about your average size, which means the 

average cattle producer in the U.S. falls well under what the law 

considers a ‘‘small business.’’ We clearly manage the landscape and 

must utilize it to raise our animals. My cattle drink from tanks 

which I pump from a stream so I can protect potential bull trout 

habitat, they also water from irrigation ditches, ponds, creeks, 

seeps and puddles that they find. Therefore it is important to me 

and my operation to have clean water. Protecting the quality of the 

water I need for my cows does not require the federal government’s 

oversight. Myself, for profitability and moral reasons, and the state 

of Washington do a pretty darn good job. 

You can see in the first attached picture I have a small stream 

running through my pasture that my cattle utilize for drinking 

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water. It is my judgment, based on the language of the proposal 

that this could easily qualify as a water of the U.S., opening me 

and my ranch up to significant liability. Not only could I be required to get a 404 permit for grazing my cows in the pasture, but 

by making it a federal water there are now considerations under 

the National Environmental Policy Act, or NEPA, and the Endangered Species Act due to the federal decision-making in granting or 

denying a permit. There is also the citizen suit provision under Sec. 

505 of the Clean Water Act that would keep me up at night. For 

the price of a postage stamp someone who disagrees with eating 

red meat could throw me into court where I will have to spend time 

and money proving that I am not violating the Clean Water Act. 

I don’t think this is what anyone had in mind when Congress 

passed the Clean Water Act. 

Instead of improving water quality, it is my belief, the belief of 

the Washington Cattlemen’s Association, and the belief of the National Cattlemen’s Beef Association that this proposal will decrease 

the quality of our water because it would discourage ranchers like 

myself from implementing conservation practices that are designed 

to protect water quality. As an example, I recently completed a 

project that you can see in the second attached picture that creates 

a riparian pasture so I can manage the grazing that occurs within 

the riparian area. The fence has allowed me to better manage my 

forage and to protect water quality. I voluntarily installed the 

fence, not because I had to, but because I thought it would be good 

for the environment. If this proposal and the NRCS-EPA-Corps Interpretive Rule were in force when I started this project I would 

not have completed it due to the significant legal liability they have 

created. 

The Washington Cattlemen’s Association and the National 

Cattlemen’s Beef Association believe some presumptions have been 

created by the NRCS interpretive rule. First, that cattle grazing is 

a discharge activity subjecting me to legal liability if it occurs in 

a water of the U.S. I have never heard of the federal government 

declaring cattle to be either a point source or to create a fill activity 

under the Clean Water Act, but that’ exactly what they’ve done. 

Second, if I implement a conservation practice that is not on the 

prescriptive list of 56 NRCS practices, or not done to the NRCS 

standard, it could now fall outside the statutory exemption for normal farming and ranching. The result is that if I do not follow the 

exact specifications for NRCS’ prescribed grazing standard on my 

operation, I am no longer exempted from the 404 dredge and fill 

program. While this might not have been the agencies’ intent, it 

was the result. The fence that I put up in the attached picture was 

done with cost-shared dollars from the local conservation district. 

It was not required to meet the more strenuous NRCS standard for 

fencing and I would not have engaged in the project had it been 

a requirement. You can see in this picture that the posts are 

spaced further apart than NRCS specs require, and do not have the 

required number of wires. Both those requirements add costs. The 

entire project cost approximately $1,400. Had I been required to install a fence meeting the NRCS standard and specifications it 

would have cost me an additional $300, for a quarter mile fence. 

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While that may not seem like a lot, if you expand that over hundreds of acres it can really add up to a lot of money. And for small 

business like mine, $300 does matter. Future conservation projects 

will not be implemented if this interpretive rule and proposed definition are allowed to move forward. I could not afford to risk being 

in violation of the Clean Water Act with fines of $37,500 per day 

and possible criminal sanctions to put in a project. I also would not 

go through the hassle and high cost of getting a 404 permit to complete this small project. I want to do my part for the environment, 

but I can’t if it would jeopardize my entire operation. This is why 

the National Cattlemen’s Beef Association and the Washington 

Cattlemen’s Association are asking the agencies to withdraw the 

Interpretive Rule. 

This didn’t have to be the result; all the agencies had to do was 

engage stakeholders early on in the process, incorporate our suggestions and we would be much farther along in crafting a rule 

that actually would clarify the scope of Clean Water Act jurisdiction. We are particularly concerned with the lack of outreach with 

the small business community, contrary to the Regulatory Flexibility Act. Being the owner of a small business myself in the cattle 

industry and knowing the detrimental impact this regulation will 

have on my operation, it is appalling the agencies could assert that 

this regulation will not have a ‘‘significant economic impact on a 

substantial number of small entities.’’ It is clear to me that the 

rule’s primary impact will be on small landowners across the country. The agencies should have conducted a robust and thorough 

analysis of the impact, but is clear from the certification that they 

have not completed this important step in developing the regulation. 

There was also zero outreach to the agriculture community before the rule was proposed and before the interpretive rule went 

into effect. Despite what the EPA is saying, they did not have a 

meaningful dialogue with the small business community as a 

whole. Even when cattle producers asked the head of the office of 

water at our February meeting in Nashville about the proposal, all 

we were told was to ‘‘wait and see what the proposal says.’’ Well 

we were forced to wait instead of having input and this is what we 

got, a proposal that doesn’t work for small businesses, doesn’t work 

for cattle ranchers, and doesn’t work for the environment. 

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Chairman Graves and members of the Committee, thank you for 

inviting me to testify on behalf of the National Stone, Sand & 

Gravel Association (NSSGA) at this hearing: ‘‘Will EPA’s ‘Waters 

of the United States Rule’ Drown Small Businesses?’’ 

My name is Alan Parks and I am Vice President of Memphis 

Stone and Gravel Company, of Memphis, Tennessee, where I have 

worked for almost 15 years on permitting and environmental compliance. Additionally, I direct the company’s exploration drilling activity, long range mining, and reclamation work. I am a registered 

professional geologist in the State of Tennessee and have degree in 

mining engineering. My prior occupation was working as a geologist for the Tennessee Department of Environment and Conservation. 

NSSGA is the world’s largest mining association by product volume. NSSGA member companies represent more than 90% of the 

crushed stone and 70% of the sand and gravel consumed annually 

in the U.S., and there are more than 10,000 aggregates operations 

in the U.S. Of particular relevance to this hearing, 70% of NSSGA 

members are considered small businesses, and many are located in 

rural areas. 

Memphis Stone and Gravel Company was started in 1910 and remains a family-owned business. We have eight active mining facilities in Tennessee and Mississippi. Memphis Stone and Gravel 

Company has a long history of providing aggregates for the betterment of the nation. To assist with the war effort in 1942, Memphis 

Stone and Gravel Company was the prime contractor for Halls Air 

Force Base and Murfreesboro artillery ranges. We have won national and local awards for conservation, community service, and 

safety. 

Like all aggregates operations, Memphis Stone and Gravel Company is regulated by numerous entities including the city, county, 

and state governments, and federal agencies including the EPA, 

the Mine Safety and Health Administration, and the U.S. Army 

Corps of Engineers. Before we begin operations we must obtain 

permits to construct and operate our facilities. After we start operations, our facilities are routinely monitored to ensure we are operating in a safe and environmentally responsible manner. A safe 

and healthy environment in which to work is good business, and 

in the best interest of the employees. We work hard to make sure 

this happens. 

Aggregates are the chief ingredient in asphalt pavement and concrete, and are used in nearly all residential, commercial, and industrial building construction and in most public works projects, including roads, highways, bridges, dams, and airports. Aggregates 

are used for many environmental purposes including: treating 

drinking water and in sewage treatment plants, for erosion control 

and in cleaning air emissions from power plants. While Americans 

take for granted this essential natural material, they are imperative for construction. Unlike other businesses, we cannot simply 

choose where we operate. We are limited to where natural forces 

have deposited the materials we mine. There are also competing 

land uses that can affect the feasibility of any project. 

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Through its economic, social and environmental contributions, 

aggregates production helps to create sustainable communities and 

is essential to the quality of life Americans enjoy. Aggregates are 

a high-volume, low-cost product. Due to high product transportation costs, proximity to market is critical; thus 70% of our nation’s counties are home to an aggregates operation. Generally, 

once aggregates are transported outside a 25-mile limit, the cost of 

the material can increase 30% to 100%, in addition to creating environmental and transportation concerns. Because so much of our 

material is used in public projects, any cost increases are ultimately borne by the taxpayer. 

As the industry that provides that basic material for everything 

from the roads on which we drive to purifying the water we drink. 

NSSGA members are deeply concerned that EPA’s proposed rule 

will stifle our industry at a time when we are just now recovering 

from the economic downturn. The aggregates industry removes materials from the ground, then crushes and processes them. Hazardous chemicals are not used or discharged during removal or 

processing of aggregates. When aggregates producers are finished 

using the stone, sand or gravel in an area, they pay to return the 

land to other productive uses, such as residential and business 

communities, farm land, parks, or nature preserves. 

Over the past eight years, the aggregates industry has experienced the most severe recession in its history. This expansion of jurisdiction will have a severe impact on industry by increasing the 

costs and delays of the regulatory process, causing further harm to 

an industry that has been production drop by 39% since 2006. 

While stone, sand and gravel resources may seem to be ubiquitous, 

construction materials must meet strict technical guidelines to 

make durable roads and other public works projects. Because many 

aggregate deposits were created by water, they are often located 

near water. The availability of future sources of high quality aggregates is a significant problem in many areas of the country and 

permitting issues has made the problem worse. 

NSSGA members pride themselves on meeting or exceeding compliance with all pertinent environmental laws and regulations, and 

emphasize sustainable practices. Memphis Stone and Gravel Company pays very close attention to our resources, particularly water. 

Careful design of our plants ensures we maximize the recycling of 

precipitation and reuse of all of our water supplies. Additionally, 

we operate most of our facilities as a no-discharge system, keeping 

all process water on-site and requiring no hazardous chemicals in 

our production process. 

EPA claims this rule change is needed because so many waters 

are unprotected, but that is not true: states and local governments 

have rules that effectively manage these resources. For example, 

states and many municipalities regulate any potential negative impacts to storm water run-off and require detailed storm water pollution prevention plans. These plans are required for every project, 

both during construction and operations. States and local governments are best-suited to make land use decisions and balance economic and environmental benefits, which is what Congress inSBREP-219 with DISTILLER

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tended. While EPA states groundwater is excluded from this rule, 

the rule also says that ‘‘shallow subsurface connections’’ are included. Does this mean the water that fills our pits is jurisdiction? 

It would be a rare event to NOT encounter shallow, unconfined or 

perched groundwater in sand and gravel deposits that we typically 

mine. Will a separate permit be required for reclaiming the it and 

returning it to another, beneficial use? These are just some of the 

many questions this rule poses, but does not answer. And, that in 

many ways underscores the problem with the proposed rule, the 

uncertainty of the scope of jurisdiction. 

EPA contends the purpose of the proposed rule is to eliminate 

the time and resources allocated to make site-specific review of determinations. Before breaking ground, we always evaluate whether 

we are affecting jurisdictional water, which requires consultation 

with the Corps and sometimes hiring a consultant. Yet EPA doesn’t 

provide any set criteria on what a ‘‘significant nexus’’ is, so the inclusion ‘‘other waters’’ will require additional time for determinations to be made. The delay caused by multiple consultations, surveys, reports, and individual watershed permits processed will add 

significant new costs during the permitting process, which could 

lead to abandoning projects once considered viable. 

The aggregates industry requires large land areas to process and 

remove the extensive quantities of material needed for public 

works projects. Memphis Stone and Gravel Company can use up to 

25 acres a year per site. This proposed rule could effectively place 

many areas ‘‘off limits’’ due to cost of new permits and/or the mitigation required to off-set losses to now regulated streams. 

Having a clear jurisdictional determination for each site is critical to the aggregates industry. These decisions impact the planning, financing, constructing and operating aggregates facilities. 

Because the Clean Water Act 404 ‘‘dredge and fill’’ permitting process and the corresponding states’ 401 Certification process is so 

long and costly for a small company like Memphis Stone and Gravel Company, we attempt to avoid jurisdictional areas. Now, under 

the proposed revisions, many previously non-jurisdictional areas 

like floodplains, wet weather conveyances, upland headwaters, 

ephemeral streams or any riparian area could be considered jurisdictional. It will make nearly any area we try to access regulated 

and in need of additional permits. 

Even obtaining a jurisdictional determination can be a significant undertaking for a small company like ours. As a small company we attempt to do many of the jurisdictional determinations 

and other permitting in-house. However, Memphis Stone and Gravel Company will from time to time seek a consultant to help us obtain the required information for submission, because of time constraints. While jurisdictional determinations are good for five 

years, as an industry we make business decisions to buy or lease 

properties to extract aggregates for very long terms, 15 to 30 years 

is not uncommon for Memphis Stone and Gravel Company. The 

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nificant impacts on our material reserves, which will affect the life 

of our facilities and delay the start-up of new sites. Ultimately this 

change will disrupt the supply of aggregates to our biggest customers, government agencies; thus affecting highway programs, 

airports, and municipal projects. 

There is much inefficiency in the current regulatory system; however, adding vague terms and undefined concepts to an already 

complicated program is not the way to fix the problem. In some 

cases this rule could have a negative effect on the environment and 

safety. Ditches without maintenance can degrade and lead to increased erosion and sediment problems. 

EPA should undertake a full evaluation of the effects this rule 

will have on small businesses via a Small Business Advocacy Review (SBRFA) Panel. The proposed rule will put small businesses 

at risk of fines of up to $37,500 per day if a permit is required and 

not obtained, which could wipe out a small business that does not 

realize a permit is needed for work far from ‘‘navigable’’ water. We 

agree wholeheartedly with Chairman Graves that EPA is required 

to comply with the Regulatory Flexibility Act and get input from 

affected small businesses before proposing a rule. EPA claims this 

rule is based on sound science, but the Science Advisory Board, the 

group of independent scientists reviewing it, are still not near completion; in fact they have raised serious questions EPA has not answered. 

EPA’s economic analysis of this rule does not accurately show 

what businesses like ours will end up paying if this rule is finalized. It is not even close. One NSSGA member calculated that to 

do the additional mitigation of a stream required under this rule 

would be more than $100,000; this is just for one site in our industry. This is more than EPA has estimated the stream mitigation 

costs are for entire states in its economic analysis. For our business, time is money. Any new requirements lead to a long learning 

curve for both the regulators and the regulated. Just getting a jurisdictional determination can take momths—permits can take 

years; how much longer will it take to break ground with so many 

vague and undefined terms in this rule? 

The proposed rule has no clear line on what is ‘‘in’’ and what is 

‘‘out,’’ making it very difficult for our industry and other businesses 

to plan new projects and make hiring decisions. If it is determined 

development of a site will take too long or cost too much in permitting or mitigation, we won’t move forward. That means a whole 

host of economic activity in a community will not occur—all of this 

in the name of protecting a ditch or farm pond. 

Taken further, a significant cut in aggregates production could 

lead to a shortage of construction aggregate, raising the costs of 

concrete and hot mix asphalt products for state and federal road 

building and repair, and commercial and residential construction. 

NSSGA estimates that material prices could escalate from 80% up 

to 180%. As material costs increase, supply becomes limited, which 

will further reduce growth and employment opportunities in our industry. Increases in costs of our materials for public works would 

be borne by taxpayers, and delay road repairs and other crucial 

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projects. Given that infrastructure investment is essential to economic recovery and growth, any change in the way land use is regulated places additional burden on the aggregates industry that is 

unwarranted and would adversely impact aggregates supply and 

vitally important American jobs. 

NSSGA appreciates this opportunity to speak on the devastating 

effects of a broad expansion of Clean Water Act jurisdiction on the 

aggregates industry. Thank you, Mr. Chairman, and I will be 

happy to respond to any questions. 

Attachments: NSSGA Clean Water Act Expansion 

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Testimony of Tom Woods 

First Vice Chairman of the Board 

National Association of Home Builders 

Before the 

United States House of Representatives 

Small Business Committee 

Hearing on ‘‘Will EPA’s ‘Waters of the United States’ Rule 

Drown Small Businesses’’ 

May 29, 2014 

Chairman Graves, Ranking Member Velazquez, members of the 

subcommittee, on behalf of the more than 140,000 members of the 

National Association of Home Builders (NAHB), I appreciate the 

opportunity to testify today. My name is Tom Woods and I am the 

president of Woods Custom Homes, a building company based in 

Blue Springs, Missouri, and NAHB’s 2014 First Vice Chairman of 

the Board. 

NAHB members are involved in the home building, remodeling, 

multifamily construction, land development, property management, 

and light commercial construction industries. Our industry is largely dominated by small businesses, with our average builder member employing 11 employees. Since the Association’s inception in 

1942, NAHB’s primary goal has been to ensure that housing is a 

national priority and that all Americans have access to safe, decent 

and affordable housing, whether they choose to buy or rent a home. 

Recognizing the need for a clean environment and the benefits 

that it brings to communities, residents, and potential home buyers, NAHB members have a vested interest in preserving and protecting our nation’s land and water resources. Since its inception 

in 1972, the Clean Water Act (CWA) has helped to make significant 

strides in improving the quality of our water resources and our 

lives. As environmental stewards, the nation’s home builders construct neighborhoods and help create thriving communities while 

maintaining, protecting, and enhancing our natural resources. 

Under the CWA, home builders must often obtain and comply with 

section 402 and 404 permits to complete their projects. For businesses navigating federal bureaucracies, what is most important to 

our compliance efforts is a regulatory scheme that is consistent, 

predictable, timely, and focused on protecting true aquatic resources. Unfortunately, this is becoming a more elusive goal. 

As a leader of my industry, I have a unique understanding of 

how the federal government’s regulatory process impacts businesses in the real-world. Additional regulations make it more difficult for me to provide homes at a price point that is affordable 

to working families—a reality that affects both renters and prospective buyers. 

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1Survey conducted by Paul Emrath, National Association of Home Builders, ‘‘How Government Regulation Affects the Price of a New Home,’’ 2011 

The home building industry would benefit from smarter and 

more sensible regulation. According to a study completed by 

NAHB, government regulations accounts for up to 25% of the price 

of a single-family home. Nearly two-thirds of this impact is due to 

regulations that affect the developer of the lot, with the rest due 

to regulations that are imposed on the builder during construction.1 The regulatory requirements we face as builders do not just 

come from the federal government. As the former Mayor of Blue 

Springs, Missouri, I believe a key component of effective regulation 

is ensuring that local, state and federal agencies are cooperating, 

where possible, to streamline permitting requirements and are respecting the appropriate responsibilities of each level of government. Importantly, more sensible regulation will translate into job 

growth in the construction industry. 

‘‘Waters of the United States’’ Proposed Rule: 

On April 21, 2014, the Environmental Protection Agency and 

U.S. Army Corps of Engineers (‘‘the agencies’’) proposed a rule redefining the scope of waters protected under the CWA. For years, 

landowners and regulators alike have been frustrated with the continued uncertainty over the scope of federal jurisdiction over ‘‘Waters of the United States.’’ By improving the CWA’s implementation, removing redundancy, and further clarifying jurisdictional authority, the agencies are hoping they can do an even better job at 

facilitating compliance while protecting and improving the aquatic 

environment. 

Unfortunately, the proposed rule falls well short of providing the 

clarity and certainty the construction industry seeks. This rule will 

increase federal regulatory power over private property and will 

lead to increased litigation, permit requirements, and delays for 

any business trying to comply. Equally important, these changes 

will not significantly improve water quality because much of the 

rule improperly encompasses water features that are already regulated at the state level. 

Addressing the Impacts on Small Entities 

The agencies completely ignore the impact this proposed rule will 

have on small entities. They claim ‘‘...(t)hat fewer waters will be 

subject to the CWA under the proposed rule than are subject to 

regulation under the existing regulations; this action will not affect 

small entities to a greater degree than the existing regulations.’’ 

This is not accurate. In reality, the proposed rule establishes 

broader definitions of existing regulatory categories, such as tributaries, and regulates new areas that are not jurisdictional under 

current regulations, such as adjacent non-wetlands, riparian areas, 

floodplains, and other waters. 

The agencies intentionally created overly broad terms so they 

have the authority to interpret them as they see fit in the field, including stepping in where they may think a state has not gone far 

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2 5 U.S.C. 601–612. 

3 5 U.S.C. 603(a). 

4 5 U.S.C. 603(c). 

enough. These new definitions will include substantial additions, 

such as a first time inclusion of ditches, conveyances and other 

water features that may flow, if at all, only after a heavy rainfall. 

Unless proper mapping is provided by the agencies it may be impossible for a home builder to independently identify what is jurisdictional. 

In addition, the proposal suggests that ‘‘neighboring’’ could include any wet feature within a ‘‘floodplain.’’ As I am sure you are 

aware, floodplains can extend for miles from traditional navigable 

waters, yet the agencies can now claim that those features, miles 

away, can be considered neighboring. This is a far cry from what 

Congress intended to be covered by the CWA. For any small business trying to comply with the law, the last thing it needs is a set 

of new, vague and convoluted definitions that only provide another 

layer of uncertainty. 

These definitions will leave home builders in a constant state of 

confusion. As a small business owner, this unpredictability will 

make it difficult for my business to comply and grow. The agencies 

suggest that the rule provides clarity; however all it does is 

produce more questions. Unfortunately, we have to rely on the 

agencies and costly consultants for answers. 

Regulatory Flexibility Act 

These changes have far reaching implications and will alter the 

way we conduct business. Recognizing that small businesses are 

frequently disproportionately impacted by federal regulations, Congress enacted, more than 30 years ago, the Regulatory Flexibility 

Act (RFA). The agencies are legally required to assess the true impacts this rule will have on small businesses under the RFA. 

The RFA requires federal agencies to consider the effect of their 

actions on small entities, including small businesses, small nonprofit enterprises, and small local governments.2 When an agency 

issues a rulemaking proposal, the RFA requires the agency to ‘‘prepare and make available for public comment an initial regulatory 

flexibility analysis. Such analysis shall describe the impact of the 

proposed rule on small entities.’’ 3

The RFA states that an initial regulatory flexibility analysis 

(IRFA) shall address the reasons that an agency is considering the 

action; the objectives and legal basis of the rule; the type and number of small entities to which the rule will apply; the projected reporting, recordkeeping, and other compliance requirements of the 

proposed rule; and all federal rules that may duplicate, overlap, or 

conflict with the proposed rule. The agency must also provide a description of any significant alternatives to the proposed rule which 

accomplish the stated objectives of applicable statutes which minimize any significant economic impact of the proposed rule on small 

entities.4

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5 5 U.S.C. 605. 

6 5 U.S.C. 609. 

7 5 U.S.C. 609(b) (1) through (6). 

8The Congressional Research Service examined 45 regulations it characterized as satisfying 

OMB’s ‘‘significance’’ threshold of $100 million annual effect on the U.S. economy in a report 

addressing the rate of issuing regulations during the first Obama Administration. Regulations: 

Too Much, Too Little, or On Track?, http://www.fas.org/sgp/crs/misc/R41561.pdf (last visited Mar. 

5, 2013). 

Section 605 of the RFA allows an agency, in lieu of preparing an 

IRFA, to certify that a rule is not expected to have a significant 

economic impact on a substantial number of small entities. If the 

head of the agency makes such a certification, the agency must 

publish the certification in the Federal Register along with a statement providing the factual basis for the certification.5

While the original Congressional intent and subsequent additions 

and enhancements to the RFA are to be lauded, the reality is that 

far too often agencies either view compliance with the Act as little 

more than a procedural ‘‘check-the-box’’ exercise or they artfully 

avoid compliance by other means. 

In this instance, the agencies have bypassed the safeguards of 

the RFA by certifying the proposed rule. NAHB believes that the 

agencies should have conducted an IRFA to truly assess the impact 

this rule will have on small business entities. A more thorough 

analysis of the proposed requirements would have revealed the disproportionate burdens that this rule places on small residential 

home builders. I take issue with the fact that the agencies have not 

considered these consequences. 

Small Businesses Regulatory Enforcement Fairness Act Requirements 

Under the 1996 amendments to the RFA, known as the Small 

Businesses Regulatory Enforcement Fairness Act (SBREFA),6 if the 

Occupational Safety and Health Administration (OSHA) or Environmental Protection Agency (EPA) prepares an IRFA, they must 

first notify the Chief Counsel for Advocacy of the Small Business 

Administration (‘‘Advocacy’’) and provide Advocacy with information on the potential impacts of the proposed regulation on small 

entities. Advocacy must then identify individual representatives of 

affected small entities for the purpose of obtaining advice and recommendations about the potential impacts of the proposed rule. 

The agency must convene a review panel made up of representatives from the agency, Advocacy, and the Office of Management 

and Budget to review the materials the agency has prepared, collect advice and recommendations from the small entity representatives (SERs), and issue a report of the panel’s findings. Following 

this process, the agency shall modify the proposed rule, the IRFA, 

or the decision on whether an IRFA is required if the panel report 

warrants any changes.7

In the 18 years since the RFA was amended by SBREFA to include the panel requirement, EPA has convened approximately 43 

panels. According to a report issues by the Congressional Research 

Service (CRS), EPA issued nearly the same number of significant 

regulations during the first Obama Administration.8 It defies belief 

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9Section 611(a)(1) states: ‘‘For any rule subject to this chapter, a small entity that is adversely 

affected or aggrieved by final agency action is entitled to judicial review of agency compliance 

with the requirements of sections 601, 604, 605(b), 608(b), and 610 in accordance with chapter 

7. Agency compliance with sections 607 and 609(a) shall be judicially reviewable in connection 

with judicial review of section 604.’’ 

that so few EPA regulations have met the threshold under 

SBREFA and these numbers illustrate how reluctant some agencies are to comply with the law. 

It was very surprising to me that the agencies decided to certify 

the rule, thereby completely bypassing the RFA process. The agencies are not interested in hearing from the regulated community. 

Their only objective is to move this regulation closer to the finish 

line. For a rule of this magnitude, the small business voice must 

be heard and the agencies have failed to provide that platform. 

Ensuring Compliance with Small Entity Feedback Requirements 

While section 611 of the RFA provides for judicial review of some 

of the act’s provisions, it does not permit judicial review of section 

609(b), which contains the panel requirement.9 NAHB believes that 

the RFA should be amended to include judicial review of the panel 

requirement to ensure the agencies adhere to the law. If the RFA 

allowed judicial review of section 609(b), agencies would feel more 

pressure to comply by convening a meaningful panel of SERs that 

can thoughtfully and substantively advise the agency, as Congress 

intended. Knowing that its decision whether to convene a panel 

could result in a judicial remand of a regulation presents a strong 

incentive to agencies to conduct a panel at the early stages in rule 

development. Without a judicial backstop or other enforcement 

mechanism, there is no way to compel the agency to implement a 

clear congressional directive. When agencies evade their responsibility to convene review panels, they remove small business input 

entirely from the equation. 

Acknowledging the True Costs to Small Entities 

Not only did the agencies fail to perform the required RFA analysis to determine the proposal’s economic impacts on small businesses, the agencies’ economic analysis of the proposal is fatally 

flawed. 

The Agencies’ Flawed Cost-Benefit Analysis 

The Environmental Protection Agency’s (EPA Economic Analysis 

of Proposed Revised Definition of Waters of the United States (analysis) fails to provide a reasonable assessment of costs and benefits 

as required by Executive Order 12866. Economist Dr. David 

Sunding, the Thomas J. Graff Professor at the University of California-Berkeley’s College of Natural Resources, has identified several major flaws with the analysis. 

According to Dr. Sunding, the analysis relies on a flawed methodology for estimating the extent of newly jurisdictional waters and 

thereby underestimating the incremental wetland acreage that will 

be impacted, excludes several important types of costs, and uses a 

flawed benefits methodology. In fact, he stated that ‘‘the errors and 

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10David Sunding, ‘‘Review of 2014 EPA Economic Analysis of Proposed Revised Definition of 

Waters of the United States,’’ 2014 

omissions in EPA’s study are so severe as to render it virtually 

meaningless.’’ For example, one of the many problems that he acknowledged was the unreliable data sample the EPA used in the 

analysis: 

‘‘The analysis uses FY 2009/2010 as the baseline year to estimate impacts. FY 2009/2010 was a period of significant contraction in the housing market due to the financial crisis. Construction spending during these two fiscal years was 24% below 

that of the previous two-year period. In statistical terms, this is 

an issue of sample selection, where due to exogenous events the 

sample selected for the analysis is not representative of the overall population. The report bases its finding on a period of extremely low construction activity, which will result in artificially-low number of applications and affected acreage. Even if 

the percent increase in added permits is correct, using the number or permits issued in 2010 as a baseline is very likely a significant underestimation of the affected acreage in years not 

subject to a crisis in the building sector.’’ 10

In addition, EPA’s calculation of incremental costs is deficient. 

EPA’s analysis excludes several important types of costs, such as 

costs associated with permitting delays, impact avoidance and 

minimization. Also, EPA’s analysis of Section 404 costs relies on 

permitting cost data that are nearly 20 years old and are not adjusted for inflation. 

Finally, EPA uses a flawed methodology for its calculation of 

benefits. EPA’s analysis adopts an all or nothing approach to assessing benefits by assuming that all wetlands affected by the 

rule’s definitional change would be filled. On the flip side, they 

make the assumption that the rule would preserve or mitigate land 

if federal jurisdiction is extended by the rule. These unrealistic assumptions contribute to an inflated benefits calculation. 

It is clear that the EPA should withdraw the economic analysis 

and prepare an adequate study of this major change to the CWA. 

Yet again, the agencies are painting an inaccurate picture of how 

this regulation will impact small businesses. 

Costs to the Home Building Industry 

Home building is a complex and highly regulated industry. As 

costs, regulatory burdens, and delays increase, the small businesses that make up a majority of the industry must adapt. This 

can include paying higher prices for land or purchasing smaller 

parcels, redrawing development or house plans, and/or completing 

mitigation. All of these adaptations must be financed by the builder 

and ultimately arrive in the market as a combination of higher 

prices for the consumers and lower output for the industry. As output declines and jobs are lost, other sectors that buy from or sell 

to the construction industry also contract and lose jobs. Builders 

and developers, already crippled by the economic downturn, cannot 

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11David Sunding and David Zilberman, ‘‘The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process,’’ 2002 

depend upon the future home buying public to absorb the multitude of costs associated with overregulation. 

Because compliance costs for regulations are often incurred prior 

to home sales, builders and developers have to essentially finance 

these additional carrying costs until the property is sold. Because 

of the increased price, it may take longer for the home to be sold. 

Carrying these additional costs only adds more risk to an already 

risky business, yet is one of the difficult realities that home builders face very day. This proposed rule only adds to the headwinds 

that our industry faces. 

Even moderate cost increases can have significant negative market impacts. This is of particular concern in the affordable housing 

sector where relatively small price increases can have an immediate impact on low to moderate income home buyers. Such buyers 

are more susceptible to being priced out of the market. As the price 

of the home increases, those who are on the verge of qualifying for 

a new home will no longer be able to afford this purchase. An analysis done by NAHB illustrates the number of households priced out 

of the market for a median priced new home due to a $1,000 price 

increase. Nationally, this price difference means that when a median new home price increases from $225,000 to $226,000, 232,447 

households can no longer afford that home. 

The picture becomes more stark when you consider the time and 

cost to obtain a CWA section 404 permit. A 2002 study found that 

it takes an average of 788 days and $271,596 to obtain an individual permit and 313 days and $28,915 for a ‘‘streamlined’’ nationwide permit. Over $1.7 billion is spent each year by the private and 

public sectors obtaining wetlands permits.11 Importantly, these 

ranges do not take into account the cost of mitigation, which can 

be exorbitant. When considering these excesses, it becomes clear 

that we need to fine a necessary balance between protecting our 

nation’s water resources and allowing citizens to build and develop 

their land. 

Construction projects rely on efficient, timely, and consistent permitting procedures and review processes under CWA programs. 

Builders and developers are generally ill-equipped to make their 

own jurisdictional determinations and must hire outside consultants to secure necessary permits and approval. This takes time and 

money. Delays often lead to greater risks and higher costs, which 

many developers would rather avoid given tight budgets and timeframes. Onerous permitting liabilities could delay or eventually kill 

a real estate deal. If the rule is finalized in its current form, the 

ability to sell, build, expand, or retrofit structures or properties will 

suffer notable setbacks, including added cost and delays for development and investment. 

Oftentimes, home builders will be at the mercy of the agencies. 

Builders will have to request a jurisdictional determination from 

the agencies to ensure they are not disturbing land near an aggregated water. Consequently, an increase in the number of jurisdicSBREP-219 with DISTILLER

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tional determination requests, across all industries, will result in 

greater permitting delays as the agencies are flooded with paperwork. My business has already been the victim of permitting delay. 

For one of my building projects, I was entangled in the Army Corps 

permitting process for over two years. These delays will only increase as the agencies work to extend federal protections to smaller 

waters. 

In addition, many federal statutes tie their approval/consultation 

requirements to those of the CWA, i.e. if one has to obtain a CWA 

permit, he/she must also obtain other permits. If more areas are 

considered jurisdictional, more CWA permits will be required. More 

federal permitting actions will trigger additional statutory reviews—by agencies other than the permitting agency—under laws 

including the Endangered Species Act, National Historic Preservation Act, and National Environmental Policy Act. Project proponents do not have a seat at the table during these additional reviews, nor are consulting agencies bound by a specific time limit. 

Lengthened permitting times will include an increased number of 

meetings, formal and informal hearings, and appeals. These federal 

consultations are just another layer of red tape that the federal 

government has placed on small businesses and it is doubtful the 

agencies will be equipped to handle this inflow. 

While my industry is complex and multifaceted, it is not beyond 

the agencies’ ability to adequately study and estimate realistic 

costs and burdens resulting from this proposal. 

Impacts on State and Local Governments 

While many aspects of the CWA are vague, it is clear that Congress intended to create a partnership between the federal agencies 

and state governments to protect our nation’s water resources. Congress states in section 101 of the CWA that ‘‘[f]ederal agencies shall 

cooperate with state and local agencies to develop comprehensive 

solutions to prevent, reduce and eliminate pollution in concert with 

programs for managing water resource.’’ Under this notion, there 

is a point where federal authority ends and state authority begins. 

The rule proposed by the agencies blatantly ignores this history of 

partnership and fails to recognize that there are limits on federal 

authority. 

States have adequately regulated their own waters and wetlands 

for years. States take their responsibilities to protect its natural resources seriously and do not need the federal government to assert 

jurisdiction. In fact, every state has the authority to exceed federal 

law, so long as there is a compelling reason. If you looked around 

the country you would find that many states are protecting their 

natural resources more aggressively than when the CWA was enacted. As a former Mayor, I am aware of this impact. I have a firsthand understanding of the lengths that state and local governments go to in order to protect their waters. 

In addition, if this rule is finalized it will slow down housing production which will have an adverse affect on state and local economies. Buyers of new homes and investors in rental properties add 

to the local tax base through business, income and real estate 

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taxes, and new residents buy goods and services in the community. 

NAHB estimates the first-year economic impacts of building 100 

typical single family homes to include $28 million in wage and 

business profits, $11.1 million in federal, state and local taxes, and 

297 jobs. In the multifamily sector, the impacts of building 100 typical rental apartments include $10.8 million in wages and business 

profits, $4.2 million in federal, state and local taxes and 113 jobs. 

Conclusion: 

Congress, in crafting the RFA, clearly intended for federal agencies to carefully consider the proportional impacts of federal regulations on small businesses. 

It is the purpose of this Act to establish as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulations. To 

achieve this principal, agencies are required to solicit and consider 

flexible regulatory proposals and to explain the rationale for their 

actions to assure that such proposals are given serious consideration. 

Unfortunately, all too often the EPA has completely skirted these 

requirements. They clearly view RFA compliance as an optional 

step in the rulemaking process. This proposed rule will have a significant impact on small businesses nationwide, an important notion that the agencies choose to ignore. I am at a loss as to why 

the agencies refuse to give small businesses a seat at the table to 

discuss these impacts. I request that the agencies start over and 

develop a more meaningful and balanced rule that respects the 

spirit of the RFA. 

Thank you again for the opportunity to testify today. 

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Testimony of William W. Buzbee 

Professor of Law 

Emory Law School 

Atlanta, Georgia 30322 

Telephone: 404 727 6507 

email: wbuzbee@law.emory.edu 

Georgetown University Law Center (starting July 2014) 

600 New Jersey Avenue, N.W. Washington, D.C. 20001 

email: wwb11@law.georgetown.edu 

Before the United States House of Representatives 

Committee on Small Business 

May 29, 2014 

Hearing on United States Environmental Protection Agency 

and Army Corps of Engineers ‘‘Waters of the United 

States’’ Proposed Regulations as Published in the Federal 

Register on April 21, 2014 

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My name is William Buzbee. I am a Professor of Law at Emory 

University School of Law, where I am director of Emory’s Environmental and Natural Resources Law Program. I am about to move 

to Washington where this summer I will be joining the faculty at 

the Georgetown University Law Center. I am also a member-scholar of the not-for-profit regulatory policy think-tank the Center for 

Progressive Reform. 

I am pleased to accept this Committee’s invitation to testify regarding the new proposed ‘‘waters of the United States’’ regulations 

published in the Federal Register by the Army Corps of Engineers 

(the Army Corps) and the United States Environmental Protection 

Agency (EPA) on April 21, 2014. As a professor asked to testify due 

to my expertise, not as a partisan, representative of any organization, I will seek to provide context leading to these proposed regulations, comment on the choices made by EPA and the Army Corps, 

and assess the legality and logic of the proposed regulations. 

My background and past involvement with the ‘‘waters of the 

United States’’ question: 

This is not my first involvement with the question of what is protected as a ‘‘water of the United States’’ under the CWA. As a result of my work on environmental law and federalism, I served as 

co-counsel for an unusual bipartisan amicus brief filed in United 

States v. Rapanos, 547 U.S. 715 (2006) (Rapanos). This brief was 

filed on behalf of a bipartisan group of four former Administrators 

of the United States Environmental Protection Agency (EPA). 

Those former US EPA Administrators included Russell Train, who 

served under Presidents Nixon and Ford, Douglas Costle, who 

served under President Carter, William Reilly, who served under 

the first President Bush, and Carol Browner, who served under 

President Clinton. Despite their different party backgrounds and 

years of service, all four shared the same views about the importance of retaining longstanding protections of America’s waters. 

This bipartisan EPA Administrators’ brief was aligned in Rapanos 

with George W. Bush Administration’s arguments before the Supreme Court, several dozen states, many local governments, and an 

array of environmental groups as well as hunting and fishing interests. All asked the Supreme Court to uphold longstanding regulatory and statutory interpretations regarding what is protected as 

a ‘‘water of the United States,’’ emphasizing the centrality of the 

‘‘waters’’ determination to all of the Clean Water Act. After all, although this question of what are protected ‘‘waters’’ is often discussed with a focus on wetlands and tributaries and especially 

dredging and filling restrictions long set by Section 404 of the 

Clean Water Act, the ‘‘waters’’ issue is the key jurisdictional hook 

for virtually all of the Clean Water Act. This includes, among other 

things, direct pollution industrial discharges under Section 402 of 

the Clean Water Act and its National Pollutant Discharge Elimination System (NPDES) program, as well as oil spill and water 

quality components of the Act. 

After the Court’s splintered and confusing ruling in Rapanos, I 

testified during the summer of 2006 before the Fisheries, Wildlife, 

and Water subcommittee of the United States Senate Committee 

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on Environment and Public Works about the implications of the 

Rapanos decision. Shortly thereafter, I testified at a December 

2007 hearing of the Senate Committee on Environment and Public 

Works, also discussing the implications of these cases and regulatory and judicial developments since Rapanos. I also testified in 

2008 at a House hearing held by the Committee on Transportation 

and Infrastructure regarding a proposed bill referred to as the 

Clean Water Restoration Act. 

Earlier in my legal career, I counseled industry, municipalities 

and governmental authorities, states and environmental groups 

about environmental law, pollution control, and land use issues 

under all of the major federal environmental laws, as well as state 

and local laws. As a scholar, I have written extensively about related issues, with a special focus in recent years on regulatory federalism, especially environmental laws and their frequent reliance 

on overlapping federal, state and local environmental roles. I have 

published books with Cornell and Cambridge University Presses, 

and Wolters Kluwer/Aspen. My publications have appeared in 

Stanford Law Review, Cornell Law Review, NYU Law Review, 

Michigan Law Review, University of Pennsylvania Law Review, and 

in an array of other journals and books. I have taught at Emory 

since 1993, but also visited at Columbia, Cornell, Georgetown and 

Illinois Law Schools. As mentioned above, I will be leaving Emory 

for Georgetown University Law Center in a few months. 

The purpose and logic of the new ‘‘waters’’ proposed regulations, 

in brief: 

These proposed regulations and a massive accompanying science 

report referenced and summarized in the Federal Register notice 

are an attempt to reduce uncertainties created by three Supreme 

Court decisions bearing on what sorts of ‘‘waters’’ can be federally 

protected under the Clean Water Act. The two most important recent cases are the Supreme Court’s decisions in Solid Waste Agency 

of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 

159 (2001) (SWANCC) and United States v. Rapanos, 547 U.S. 715 

(2006) (Rapanos). Judicial and regulatory treatments of these cases 

and the earlier related decision in United States v. Riverside 

Bayview Homes, 474 U.S. 121 (1985), have resulted in an increasingly confused body of law, creating both regulatory uncertainty 

and occasionally bold new assertions about reduced protections for 

previously jurisdictional ‘‘waters of the United States.’’ These cases, 

and resulting confusion, have increased regulatory transaction 

costs for everyone and reduced the protections afforded to America’s waters. The proposed 2014 ‘‘waters’’ regulations are a logical 

and legally well justified means to bring clarity to the law and, to 

the extent permissible under the Supreme Court’s recent decisions, 

restore protections long provided to America’s waters during three 

decades of bipartisan agreement about when and why various sorts 

of waters should be protected. If finalized, they should greatly reduce legal uncertainty, regulatory skirmishing, and attendant litigation resulting from the uncertain intersection of these three important cases. 

I will make five main points in this testimony: 

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First, I will explain very briefly how the question of what ‘‘waters’’ are protected matters not just for wetlands and tributary protections, but for industrial discharges of pollution. Furthermore, 

the various types of waters protected perform many functions of 

importance to businesses and governments at all levels. Business, 

health, recreational, and environmental interests are all at stake 

here. Surely this Committee will hear from some business interests 

arguing against the proposal of the Army Corps and EPA, but business interests are undoubtedly on both sides of this issue, with 

hunting, fishing, boating, recreation, and tourism linked businesses 

especially dependent on protection of America’s waters. And because pollution and filling of America’s waters threaten low cost 

but high value wetlands functions and water used for agricultural 

purposes and for drinking water, and also water quality in drought 

prone areas, the despoiling or filling of America’s waters would be 

immensely costly. 

Second, I will show how the regulatory choices reflected in these 

regulations are responsive to Supreme Court law and also the 

views of a majority of the Supreme Court, at least when it last addressed related questions. 

Third, these proposed regulations reveal that EPA and Army 

Corps have responded to criticisms of supposed limitless claims of 

federal power by retaining and solidifying exemptions. 

Fourth, and perhaps most importantly, the regulations link a 

massive survey of peer reviewed science of waters’ functions with 

a tiered and nuanced approach. This approach answers criticism 

that the federal government is going too far and protecting areas 

of no value relevant to the Clean Water act. If critics can find flaws 

in the science or proposed regulatory categories, they can and 

should produce their own contrary support and call for correction 

in the now ongoing notice and comment regulatory process. 

Lastly, in the initial heated attacks on these proposed regulations, critics failed to note and credit a major change that removes 

the most expansive and least water-linked historic grounds for federal claims of jurisdiction. For decades, federal jurisdiction has existed for ‘‘other waters’’ of various sorts merely upon several sorts 

of showing that the harming activity or uses of the waters were 

linked to industry or commerce. This was, in effect, a commercelinked sweep up provision. The new proposed regulations delete 

these longstanding grounds for protection, and if finalized would 

now link Clean Water Act jurisdiction to what the best peer reviewed science indicates deserves protection. 

Point I: The extent of federally protected waters matters to far 

more than just wetlands regulation and explains the longstanding 

federal bipartisan consensus 

The question of what ‘‘waters’’ are federally protected is not a 

matter that only concerns allegedly marginal waters that, as often 

presented by critics of the longstanding protective consensus, look 

more like land or involve the outermost reaches of wetlands protection. The question of what are protected ‘‘waters of the United 

States’’ concerns the very linchpin of federal Clean Water Act jurisdiction. It does indeed supply the hook for Section 404 ‘‘dredge and 

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fill’’ coverage, but also provides the jurisdictional prerequisite for 

Section 402’s requirements of permits for industrial pollution discharges under the National Pollution Discharge Elimination System (or NPDES). It also underpins efforts to protect water quality, 

protect drinking water, provide habitat, and buffer against storm 

surges and flooding. Furthermore, since the 1970s and still today 

on the Supreme Court, the longstanding consensus has been to protect far more than just waters used in the literal sense for shipping-linked navigation. The Clean Water Act has been one of 

America’s great success stories, helping to restore many of America’s rivers from highly polluted conditions to water that often now 

is clean enough for fishing, recreation, and even drinking water. 

The Act also greatly reduced the pre-Clean Water Act tendency to 

see wetlands as worthless and appropriate for filling. Nevertheless, 

many parts of the country still suffer from degraded water quality, 

and threats to wetlands and tributaries still arise. Everyone may 

share a common interest in protecting water quality and wetlands’ 

hugely valuable functioning. Nevertheless, the ability to pollute 

with impunity or convert for private gain a tributary or wetland 

into land for development or other commercial use can generate 

private wealth, even if others downstream are economic losers. 

Hence, despite a broad consensus that America’s rivers, tributaries 

and wetlands should be protected, clashes over particular applications of the law are a near constant. 

Until the 2001 Supreme Court SWANCC case, the law and underlying regulations reflected a stable bipartisan consensus of almost thirty years that protection of America’s waters through stable Part 328 regulations was good policy. However, SWANCC and 

the 2006 Rapanos case unsettled that longstanding bipartisan consensus, breeding legal uncertainty that the new Army Corps and 

EPA regulations seek to address. As suggested by a majority of Supreme Court justices in Rapanos, new regulations responding to 

these two cases and linking what are protected ‘‘waters’’ to sound 

science could reduce such uncertainty, both protecting waters that 

matter and reducing regulatory uncertainty that benefits no one. 

Point II: The new proposed ‘‘waters of the United States’’ regulations are an appropriate response to the Supreme Court’s recent 

cases: 

Although both SWANCC and Rapanos unsettled the longstanding protective and bipartisan consensus about what ‘‘waters’’ 

were federally protected, both cases created considerable legal uncertainty that has led now to over a decade of disagreement and 

skirmishing before Congress, agencies, and the courts. However, a 

six justice majority in Rapanos embraced the role of expert regulation to clarify the appropriate line between land and water. This 

included Chief Justice Roberts, who bemoaned the lack of responsive clarifying regulations post-SWANCC, and Justice Kennedy, 

who penned a swing vote opinion that is widely viewed as the most 

authoritative Rapanos opinion. Justice Kennedy fleshed out how a 

‘‘significant nexus’’ needs to be shown to federally protect some waters whose linkages to navigable waters and functioning makes 

them of possibly marginal importance; ‘‘alone or in combination,’’ 

the relationship with navigable waters much be more than ‘‘specuSBREP-219 with DISTILLER

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lative or insubstantial.’’ Rapanos, 547 U.S. at 780. Justice Kennedy 

explicitly recognized that many questions about what sorts of waters deserve protection could be addressed via categories set forth 

by regulation, although he also appeared to call for case-by-case determinations in other settings. The four dissenters, all of whom 

joined an opinion by Justice Stevens, would have affirmed the regulators’ judgments attacked in Rapanos; they emphasized the importance of judicial deference to expert regulatory judgments about 

what waters should be protected. Thus, along with Chief Justice 

Roberts and Justice Kennedy, six justices embraced an ongoing role 

for regulation to bring clarity to the law. In addition, an earlier 

unanimous Supreme Court in Riverside Bayview Homes embraced 

deference to regulatory judgments about where to draw the line between land and water. There undoubtedly remains legitimate room 

for regulations to bring greater clarity to this body of law. 

The proposed regulations at issue in today’s hearing respond directly and reasonably to these Supreme Court calls. They protect 

some waters by category, basing that judgment on a comprehensive 

review of peer reviewed science about the linkages, value and functions of such categories of waters. Some other types of waters are 

identified as possibly falling under federal jurisdiction, but the jurisdictional determination has to follow a water site-specific review 

to see if a ‘‘significant nexus’’ exists adequate to justify federal protection. Furthermore, the proposed regulations offer additional 

guidance about what ‘‘significant nexus’’ analysis should consider, 

building on Justice Kennedy’s Rapanos language and providing additional guidance for what regulators and those seeking a jurisdictional determination should consider. 

Hence, by protecting some waters by category and others on a 

case-by-case basis if satisfying ‘‘significant nexus’’ analysis, and in 

all instances hinging such regulatory judgments to a comprehensive survey of peer reviewed science, the Army Corps and EPA 

have respected Supreme Court edicts and signals. Furthermore, 

these proposed regulations also show fealty to the Clean Water 

Act’s explicit goal of protecting the ‘‘chemical, physical, and biological integrity’’ of America’s waters by reducing pollution discharges 

and requiring permits before discharging any pollutants into such 

waters, whether in the form of industrial pollution or fill. 

Point III: The proposed regulations make explicit several categories of activities or waters not subject to federal jurisdiction 

A persistent refrain in recent years and regarding the proposed 

regulations under discussion today is that the jurisdiction being 

claimed borders on the limitless. This is most evidently erroneous 

in the proposal’s creation of both categorically protected waters and 

others that must be assessed on a case-by-case basis. However, the 

proposed regulations go further, in new Section 328.3(b) making explicit that several types of otherwise potentially debatable waters 

are not ‘‘waters of the United States.’’ These include (with additional more precise language): waste treatment systems; prior converted cropland; several sorts of ditches that are upland or do not 

contribute flow to otherwise regulated waters; and several types of 

‘‘features’’ such as artificially irrigated areas that would revert to 

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upland without irrigation water, artificial lakes, ponds, pools and 

ornamental waters, construction-linked water-filled depressions, 

groundwater, and gullies, rills and non-wetland swales. Several of 

these exemptions appear to be in direct answer to criticisms in 

court briefs and congressional testimony that federal jurisdiction 

has bordered on the limitless. 

Point IV: The proposed regulations’ link to a massive survey of 

peer-reviewed science about waters’ connectivity, values and function 

answers responds to the most prevalent criticism of ‘‘waters’’ federal 

jurisdiction and puts all on notice 

Over the past decade, a common claim of critics of federal jurisdiction has been that waters—or sometimes lands—can and are 

claimed to be protected for no reason relevant to the Clean Water 

Act’s purposes. And on this issue and in other battles over regulation, critics have called for ‘‘sound science’’ and ‘‘peer reviewed’’ 

science to underpin regulatory judgments. The Army Corps and 

EPA have taken this to heart, for the first time pulling together 

a massive survey of peer reviewed publications about the 

connectivity, values, and functions of various types of waters. This 

report is, I believe, under review by the Science Advisory Board, 

and also has been made public for review and comment. In addition, the Corps and EPA in their proposed regulation’s Federal 

Register notice explain how they interpret this report and the 

science in deciding what types of waters are categorically protected, 

subject case-by-case to ‘‘significant nexus’’ analysis, or not protected. 

I am unclear what action, if any, this Committee might choose 

to take about these proposed regulations, but this pending notice 

and comment process and public vetting of the accompanying 

science report are providing a value open, transparent, and judicially challengeable process. If critics can point to flaws and identify better peer reviewed published science, they now have such an 

opportunity. 

Point V: The Army Corps and EPA in the proposed regulations 

have deleted the longstanding ‘‘other waters’’ commerce-linked 

sweep-up provision, thereby linking protections to science and limiting federal power 

In the proposed regulations, a longstanding additional grounds 

for federal jurisdiction has been deleted. This provision, the former 

Section 328.3(3) ‘‘other waters’’ paragraphs, provided federal jurisdiction to protect over a dozen sorts of waters upon a showing that 

their ‘‘use, degradation or destruction . . . could affect interstate or 

foreign commerce’’ or be used by ‘‘interstate or foreign travelers’’ for 

‘‘recreational or other purposes,’’ for fishing-linked commerce, or for 

‘‘industrial purposes by industries in interstate commerce.’’ This 

provision basically identified types of waters but made them 

protectable based on their commerce-linked uses or values. This 

regulation was consistent with longstanding understandings of the 

1972 Clean Water Act amendments and the congressionally intended reach of federal power. However, both the SWANCC and 

Rapanos decisions raised questions about whether Clean Water Act 

jurisdiction could focus on a water’s commercial or industrial uses 

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or the impacts of a water’s degradation without regard to the water’s functions or links to navigable waters. 

I will not here opine on whether this section’s deletion was legally necessary or prudent. I will, however, note that the Corps and 

EPA have decided to answer critics and eliminate uncertainty by 

deleting this section in favor of now linking all jurisdictional ‘‘waters of the United States’’ determinations to what the science 

shows. Since most pollution and filling activity is undoubtedly commercial and industrial in nature, and little today is not linked to 

interstate commerce, this regulatory deletion is a potentially significant concession. Again, the proposed regulations choose to link 

regulation to peer reviewed science and cut back on the broadest 

possible grounds for jurisdiction. 

Conclusion 

The legal uncertainty of recent years has benefitted no one. For 

those concerned about protection of America’s waters, regulatory 

uncertainty has led to regulatory forbearance and some problematic or erroneous regulatory and judicial decisions leaving important waters unprotected. For those needing to make business decisions, regulatory uncertainty has also raised costs. By linking the 

‘‘waters of the United States’’ question to peer reviewed science and 

clarifying which waters are subject to categorical or case-by-case 

protection and revealing the reasons for such judgments, the Corps 

and EPA have moved the law in the direction of certainty and clarity. Undoubtedly some will not like where they have chosen to 

draw their lines, but this is an area calling for difficult, expert regulatory judgments. There was a reason for the thirty years of bipartisan consensus in favor of broadly protecting America’s waters. 

These proposed regulations, if finalized in a similar form, could 

perhaps once again bring clarity and stability to the law, while also 

respecting the protective mandates of the Clean Water Act. 

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1Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers, 531 U.S. 169, 175 

(2001) (dissent) (‘‘SWANCC’’). 

Submitted Testimony of the American Public Gas Association to the House Small Business Committee Hearing, ‘‘Environmental Protection Agency (EPA) and the U.S. Army 

Corps of Engineers (Corps) proposed rule defining the 

scope of waters protected under the Clean Water Act’’ 

A Consumer Perspective 

On behalf of the American Public Gas Association (APGA), we 

appreciate this opportunity to submit testimony on the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) proposed rule defining the scope of waters protected 

under the Clean Water Act (CWA) (Docket ID No. EPA–HQ–OW– 

2011–0880) 

APGA is the national association for publicly owned natural gas 

distribution systems. There are approximately 1,000 public gas systems in 37 states, and over 700 of these systems are APGA members. Publicly-owned gas systems are not-for-profit, retail distribution entities owned by, and accountable to, the citizens they serve. 

They include municipal gas distribution systems, public utility districts, county districts, and other public agencies that own and operate natural gas distribution facilities in their communities. Public 

gas systems’ primary focus is on providing safe, reliable, and affordable service to their customers. 

At the most basic level, APGA represents the views of American 

natural gas consumers. Our members serve homeowners and small 

businesses, which rely on affordable natural gas to heat their 

homes, cook their meals, power their restaurants, schools and hospitals, and service businesses of all types. 

On March 25, 2014, the EPA and Corps (hereafter collectively, 

the Agencies) published a Notice of Proposed Rulemaking (NOPR) 

to clarify the scope of CWA regulation over America’s streams and 

wetlands. APGA acknowledges that the CWA is fairly characterized 

as ‘‘watershed’’ legislation that is responsible for addressing successfully pollution in the waters of the United States,1 and applauds the Agencies for their work in that area. Our concern is 

that this proposed rule, while arguably well-intentioned, has been 

inadequately studied and, by appearing to broaden the Agencies’ 

reach under the CWA, will increase, rather than diminish, regulatory uncertainty, to the detriment of APGA’s members’ operations. Of course, at the end of the day, if the NOPR is adopted 

as a final rule, its validity will be determined by the judicial system, unless Congress intervenes to make clear that it did not intend for the scope of CWA to reach to the limits to which the Agencies now want to take it. 

APGA’s stake in this debate is that the effort of the Agencies to 

extend their CWA jurisdiction, if implemented, would raise safety 

concerns as related to the ongoing operation and maintenance of 

natural gas distribution systems and inflict an unnecessary and 

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2The time and cost burden of the federal permitting process was noted in Rapanos, 547 U.S. 

at 721. 3 E.g., SWANCC, 531 U.S. at 167–68. 

unwarranted financial burden on APGA’s members and their customers.2 In other words, the extension of federal jurisdiction to 

matters heretofore considered to be within the parameters of the 

States frequently has unintended consequences, and this is no exception. In addition, the downsides of enhanced jurisdictional reach 

are greatly heightened, if not accompanied by, sufficient increased 

funding to ensure timely action by the Agencies as it relates to 

CWA matters over which they exercise jurisdiction. 

Prejudges the Science 

There are certain aspects of the NOPR that APGA finds very 

troubling from the standpoint of fundamental administrative law 

principles. The need to broaden the scope under the proposed rule 

is based on EPA’s draft scientific study on the connectivity of waters ‘‘Connectivity of Streams and Wetlands to Downstream Waters: 

A Review and Synthesis of the Scientific Evidence.’’ The EPA’s 

Science Advisory Board panel is still in the process of peer-reviewing the draft connectivity report. At its December 2013 meeting, 

the panel identified significant deficiencies with the report. In addition, the Agencies base their analysis of ‘‘significant nexus’’—a key 

phrase in the judicial history of the reach of CWA jurisdiction 3— on a yet-to-be finished literature review which fails to examine 

what connections are ‘‘significant.’’ The final report will be released 

during the comment period, which will not allow the affected parties adequate time to review and comment. Moreover, it does not 

appear that the Agencies intend to give the public an opportunity 

to review the final connectivity report as part of the WOTUS rulemaking. There are numerous places throughout the preamble to 

the proposed rule wherein the Agencies have asked the public to 

provide specific information regarding the proposed rule’s scientific 

justifications. The purpose of the Science Advisory Board (SAB) review of the draft connectivity study was to evaluate the ‘‘evolving 

scientific literature on connectivity of waters,’’ and the public deserves the opportunity to comment on the conclusions of that review process. 

Expanding the Scope 

The EPA and the Corps both assert that the scope of CWA jurisdiction is narrower under the proposed rule than under existing 

regulations, and that the proposed rule does not extend jurisdiction 

over any new types of waters. However, under the manner in 

which the proposed rule is constructed, there is essentially no limit 

to CWA federal jurisdiction. The proposed rule establishes broader 

definitions of existing regulatory categories, such as tributaries, 

and regulates new areas that are not jurisdictional under current 

regulations, such as adjacent non-wetlands. The Congressional Research Service found that the proposed rule expands the agencies’ 

authority by proposing new definitions such as ‘‘tributary’’ and new 

categories of waters such as ‘‘adjacent waters.’’ Authority will be 

expanded over many new isolated waters through its ‘‘significant 

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4The CWA recognizes the ‘‘primary responsibilities and rights of States to prevent, reduce and 

eliminate pollution,...’’ Rapanos at 722–23. 

nexus’’ definition, which relies on a yet-to-be completed 

‘‘Connectivity of Streams and Wetlands to Downstream Waters’’ report that fails to address the ‘‘significance’’ of such connections. 

Impacts on APGA Members 

Due to the expansiveness of the proposed rule, the potential impact on public gas systems would be significant. The proposed rule 

increases the number of water features that would be subjected to 

federal permitting standards. These water features have been traditionally regulated at the local level. This system of shared responsibility, consistent with basic principles of federalism,4 has resulted in effective environmental protection without imposing unnecessary federal controls (or expanding federal dollars) where they 

are not needed. APGA believes that the Agencies should focus on 

maintaining a proper balance between Federal and State oversight 

of non-navigable waters wholly within State boundaries that do not 

affect interstate commerce. 

In 2013 the Chambersburg municipal gas system in Chambersburg, PA had to cross the Conococheague Creek with a gas main. 

To minimize impact to the creek, it directionally bored six feet 

under the stream bed. Notwithstanding taking such steps to avoid 

any impact to the creek, Chambersburg was required to complete 

a CWA Section 404 stream crossing permit, which took seven 

months to obtain (and could have taken much longer). What this 

illustrates is that permitting on CWA waters is slow now, and if 

the Agencies are successful in extending their jurisdictional reach, 

acquiring such permits will be even slower and more widespread 

in the future. This will be especially so, if as appears to be the 

case, the Agencies are not seeking any, much less adequate, additional funding to support their widened authority. Bottom line, this 

will make operating safe and efficient natural gas distribution systems more difficult and more expensive, without any offsetting benefit. 

With the potential increase in the number of geographical features that would have to undergo a review and likely additional 

permitting. APGA’s members are concerned with the impact the increased workload would have on the Agencies with respect to both 

the quickness of the review process and the quality of the review. 

Due to the nature of our business, timely review and issuance of 

permits are not only critical to maintain safety, but are also critical 

for maintaining a reliable and resilient system. 

APGA’s members spend a significant amount of time and resources replacing and servicing their systems, such as updating 

cast iron gas mains and older steel gas mains and services. This 

work is for the safety of their residents, as well as to satisfy Federal and State regulations whose goal is public safety. They regularly cross ditches and dry creek beds and properties in flood plains 

and/or properties that may drain into storm water ditches. Delaying pipe replacements for months or years would negatively impact 

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5 EPA and the Corps of Engineers prepared economic analysis ‘‘Economic Analysis of Proposed 

Revised Definition of Waters of the United States.’’ 

the safety of natural gas system consumers, with any offsetting 

benefits to the environment being either negligible or non-existent. 

Adversely Affects Jobs and Economic Growth: 

The Agencies state that the proposed rule will benefit businesses 

by increasing efficiency in determining coverage of the CWA. The 

reality, APGA believes, is that the proposed rule will subject far 

more activities to both federal and state CWA permitting requirements, NEPA analyses, mitigation requirements, and citizen lawsuits challenging the applications of new terms and provisions. The 

impact will be felt by our members and our member’s customers, 

especially small businesses that are likely to be least able to absorb 

the costs. The potential adverse effect on economic activity and job 

creation in many sectors of the economy has been largely dismissed 

by the Agencies and certainly is not reflected in EPA’s flawed economic analysis for the proposed rule. [CITES] Neither do the Agencies adequately address the effect on state and federal resources for 

permitting, oversight, and enforcement. 

The Economic Analysis suggests that the proposed rule will increase overall jurisdiction under the CWA by only 2.7 percent federalism.5 But the EPA arrives at this percentage using a flawed 

methodology that only accounts for the Section 404 program, relies 

on figures extrapolated from statistics from 2009–2010, and fails to 

consider waters and features that were not historically subjected to 

the CWA permitting process. Relying on these outdated data, the 

Agencies systematically and substantially underestimate the impact of the proposed rule’s new definition. 

Conclusion 

APGA has the utmost respect for the CWA and the Agencies’ actions thereunder to clean our nation’s waters. We are expressing 

our reservations about the NOPR because of our concerns regarding regulatory uncertainty and the adverse impacts of such uncertainty as it relates to the hundreds of communities in this country 

that will be adversely impacted by expanding the scope of the CWA 

beyond what we believe Congress intended or the courts have sanctioned. Neither agency has outlined a clear path to implementing 

this rule so as to prevent unnecessary permit backlog on an already overtaxed review staff. The unintended consequences of such 

expanded jurisdiction will make operating a safe and efficient local 

natural gas distribution system less likely and more expensive, to 

the detriment of the millions of consumers served by such systems. 

For these reasons, we urge Congress to look very carefully at the 

NOPR that is the subject of this hearing. 

APGA appreciates the opportunity to submit testimony before 

the House Committee on Small Business on this critical natural 

gas and public interest issue. We stand ready to work with the 

Committee on these and all other natural gas issues. 

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ARTBA - AMERICAN ROAD & TRANSPORTATION 

BUILDERS ASSOCIATION 

Will EPA’s ‘Waters of the United States’ Rule Drown Small 

Businesses? 

Statement of the 

American Road and Transportation Builders 

Association 

Submitted to the 

United States House of Representatives 

Committee on Small Business 

May 29, 2014 

On behalf of the American Road and Transportation Builders Association (ARTBA) and its more than 6,000 member firms and public agencies nationwide, the association would like to thank Chairman Graves and Ranking Member Vela ́zquez for holding today’s 

hearing, ‘‘Will EPA’s ‘Waters of the United States’ Rule Drown 

Small Businesses?’’ 

ARTBA’s membership includes public agencies and private firms 

and organizations that own, plan, design, supply and construct 

transportation projects throughout the country. ARTBA’s largest 

membership division is our contractors division—a significant number of which are small businesses. 

Transportation construction is directly tied to the economic 

health and development of this country. According to Federal Highway Administration data, every $1 billion spent on highway and 

bridge improvements supports almost 28,000 jobs, many of which 

are in small businesses. Given these broad direct and indirect economic contributions, the impact on transportation development 

should be taken into account when analyzing new federal regulations. 

ARTBA members are directly involved with the federal wetlands 

permitting program and undertake a variety of construction-related 

activities under the Clean Water Act (CWA). ARTBA actively 

works to combine the complementary interests of improving our nation’s transportation infrastructure with protecting essential water 

resources. 

One of the main reasons for the success of the CWA is the Act’s 

clear recognition of a partnership between the federal and state 

levels of government in the area of protecting water resources. The 

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1 CWA § 101(b). 

2Draft 2007 Report on the Environment: Science, USEPA, May 2007, available at http:// 

cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=140917 

lines of federal and state responsibility are set forth in Section 

101(b) of the CWA: 

‘‘It is the policy of Congress to recognize, preserve, and protect the primary responsibilities of States to prevent, reduce, 

and eliminate pollution, to plan the development and use (including restoration, preservation and enhancement) of land 

and water resources...’’ 1

This structure of shared responsibility between federal and state 

governments allows states the essential flexibility they need to protect truly ecologically important and environmentally sensitive 

areas within their borders while, at the same time, making necessary improvements to their transportation infrastructure. The 

success of the federal-state partnership is backed by dramatic results. Prior to the inception of the CWA, from the 1950s to the 

1970s, an average of 458,000 acres of wetlands were lost each year. 

Subsequent to the CWA’s passage, from 1986–1997, the loss rate 

declined to 58,600 acres per year and between 1998–2004 overall 

wetland areas increased at a rate of 32,000 acres per year.2

ARTBA supports the reasonable protection of environmentally 

sensitive wetlands with policies balancing preservation, economic 

realities, and public mobility requirements. Much of the current debate over federal jurisdiction, however, involves overly broad and 

ambiguous definitions of ‘‘wetlands.’’ Many states define wetlands 

as well other types of water resources and prescribe regulatory regimes that are appropriate to each body of water. However, the federal government often uses a one-size fits all approach essentially 

requiring water resources viewed by states as not being wetlands 

to be regulated as if they were wetlands under federal law. 

In its recently proposed rule regarding federal jurisdiction under 

the CWA, the U.S. Environmental Protection Agency (EPA) seeks 

to expand federal jurisdiction by stating, essentially, that all waters in the U.S. are ‘‘connected,’’ and therefore subject to federal 

regulation. Such a view of federal jurisdiction will increase the 

amount of instances in which permits would be required—regardless of ecological value or demonstrated need—for transportation 

improvements. While the benefit of additional wetlands permits in 

the transportation arena are in doubt, it is clear the new requirements would contribute to already lengthy delays in the project review and approval process. Further, in instances where the federal 

government declines to require a permit, the door would still be left 

open to unnecessary, time-consuming litigation initiated by project 

opponents. 

Over-inclusive views as to what constitutes a wetland are frequently used by anti-growth groups to stop desperately needed 

transportation improvements. For this reason, ARTBA has, and 

continues to, work towards a definition of ‘‘wetlands’’ that would be 

easily recognizable to both landowners and transportation planners 

and is consistent with the original scope of the CWA’s jurisdiction. 

As an example of this, official ARTBA policy recommends defining 

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a ‘‘wetland’’ as follows: ‘‘If a land area is saturated with water at 

the surface during the normal growing season, has hydric soil and 

supports aquatic-type vegetation, it is a functioning wetland.’’ 

ARTBA is particularly concerned with the treatment of ditches 

under EPA’s proposed rule. Roadside ditches are an essential part 

of the nation’s transportation network and contribute to the public 

health and safety of the nation by dispersing water from roadways. 

While current regulations say nothing about ditches, EPA’s expansive view of connectivity could be used to regulate all roadside 

ditches that have common characteristics, such as a channel or an 

ordinary high water mark. The purpose of roadside ditches is 

unique and distinct from the waters EPA seeks to connect. As such, 

ditches should not be regulated as traditional wetlands. 

In addition, the EPA proposal utilizes the concept of allowing for 

‘‘aggregation’’ of the contributions of all similar waters ‘‘within an 

entire watershed,’’ making it far easier to establish a significant 

nexus between these small intrastate waters and newly expanded 

roster of traditional navigable waters. This novel concept results in 

a blanket jurisdictional determination for an entire class of waters 

within an entire watershed. 

Such an interpretation of jurisdiction will literally leave no transportation project untouched from federal wetlands jurisdiction regardless of its location, as there is no area in the United States not 

linked to at least one watershed. Further, ‘‘connecting’’ all waters 

in order to establish federal jurisdiction is exactly what the Supreme Court has, on multiple occasions, told the EPA it cannot do. 

Rather, EPA may assert jurisdiction over only those water bodies 

with a ‘‘significant’’ connection to a traditionally navigable water. 

Instead of attempting to discern where there are truly ‘‘significant’’ 

connections between water bodies, EPA ‘‘connects’’ all of the waters 

of the United States and asserts essentially limitless jurisdiction. 

This completely eviscerates the federal/state partnership the CWA 

was founded on and leaves no wet area untouched by the possibility of federal regulation. 

It should also be noted that there has been recent bipartisan 

progress in the area of streamlining the project review and approval process for transportation projects. Members of both parties 

agree that transportation improvements can be built more quickly 

without sacrificing necessary environmental protections. The current surface transportation reauthorization law, the ‘‘Moving 

Ahead for Progress in the 21st Century’’ (MAP–21) Act contained 

significant reforms to the project delivery process aimed at reducing delay. Recently, the Obama Administration released the ‘‘Generating Renewal, Opportunity, and Work with Accelerated Mobility, Efficiency, and Rebuilding of Infrastructure and Communities 

throughout America’’ (GROW AMERICA) reauthorization proposal 

which continues MAP–21’s efforts at improving project delivery. 

If EPA’s rule is finalized, the progress of MAP–21 and the potential progress of the project delivery reforms in GROW AMERICA 

would be jeopardized. Any reduction in delay gained from improvements to the project delivery process would likely be negated by the 

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increased permitting requirements and opportunities for litigation 

caused by the rule’s expansion of federal jurisdiction. 

ARTBA instead, has urged EPA on multiple occasions to establish clarity in CWA regulation by developing a classification system 

for wetlands based on their ecological value. This would allow increased protection for the most valuable wetlands while also creating flexibility for projects impacting wetlands that are considered 

to have little or no value. Also, there should be a ‘‘de minimis’’ level 

of impacts defined which would not require any permitting process 

to encompass instances where impacts to wetlands are so minor 

that they do not have any ecological effect. A ‘‘de-minimis’’ standard for impacts would be particularly helpful for transportation 

projects, as it could reduce needless paperwork, delay and regulatory requirements where a project’s impacts do not rise to the 

level of having a significant effect on the environment. 

This committee should also note that there have been multiple 

legislative attempts in recent years to expand the jurisdiction of 

the CWA to include all ‘‘waters of the United States.’’ Each of these 

efforts have met with broad bipartisan opposition and none have 

resulted in new law or even a successful committee mark-up. It is 

clear that consensus among policymakers and affected stakeholders 

has not yet been reached regarding appropriate federal wetlands 

jurisdiction. This committee should direct EPA to take note of these 

developments and instead of seeking to ‘‘connect’’ all waters, work 

with the regulated community to identify those specific types of 

water bodies which are currently not being covered and craft more 

appropriate, targeted measures to protect them. 

Finally, ARTBA is disheartened that EPA’s proposed rule was 

published prior to the conclusion of efforts by the agency’s own 

Science Advisory Board (SAB) to determine what constitutes a ‘‘significant’’ connection between water bodies. As ARTBA understood 

the process, the SAB’s work should have been finalized before any 

regulatory efforts began. Given that EPA’s rule has already been 

released, ARTBA is highly skeptical that any findings by the SAB 

will change a rule that has already been drafted. EPA should suspend its rulemaking efforts and start anew after the SAB findings 

have been finalized, allowing all members of the regulated community to have proper input into this conversation about where CWA 

jurisdiction begins and ends. 

ARTBA looks forward to continuing to work with the committee 

in order to continue continuing to protect the small businesses 

which improve and sustain our nation’s infrastructure while addressing the future challenges of the CWA. 

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The National Federation of Independent Business (NFIB) appreciates the opportunity to submit this statement for the record to 

the Committee on Small Business for the hearing entitled ‘‘Will 

EPA’s ‘Waters of the United States’ Rule Drown Small Businesses?’’ NFIB is the nation’s leading small business advocacy organization representing over 350,000 small business owners across 

the country, and we appreciate the opportunity to provide our perspective on this issue. NFIB represents small businesses in every 

region and every industry in the country. Accordingly, NFIB has a 

unique insight into the concerns of the small business community, 

and can speak with authority on these concerns. 

NFIB applauds the Committee for having this hearing today. We 

note at the outset that the proposed rule to define ‘‘waters of the 

United States’’ under the Clean Water Act (CWA) was jointly submitted, by the Environmental Protection Agency and the U.S. 

Army Corps of Engineers (the Agencies), for publication in the Federal Register on April 21, 2014. In that publication, the Agencies 

certified that the proposed rule will not have a significant adverse 

impact on the small business community. But as explained in this 

statement, this certification is patently false. Moreover, it is contravened by the Agencies’ administrative rulemaking record. 

Contrary to the Agencies’ assertions, the proposed rule will have 

a tremendous, direct, and immediate effect on many small businesses across all sectors of the economy. NFIB is concerned that 

the proposed rule represents an unprecedented jurisdictional landgrab, which will affect the rights of private landowners—including 

many small businesses. As such, NFIB believes that the Agencies 

have, thus far, ignored their statutory obligations—under the Regulatory Flexibility Act (RFA) and the Small Business Regulatory 

Enforcement Fairness Act (SBREFA)—requiring the Agencies to seriously consider the economic impact of the proposed rule on the 

small business community. 

The Agencies Have Failed to Comply with the Regulatory 

Flexibility Act 

NFIB believes the Agencies have failed to meet their statutory 

obligations under the RFA and SBREFA. Accordingly, NFIB believes the Agencies should (1) acknowledge that the proposed rule 

will have a significant adverse impact on a substantial number of 

small businesses; (2) withdraw the proposed rule; and (3) wait to 

propose a new rule until the Agencies have considered less burdensome alternative interpretations of the pertinent CWA jurisdictional provisions. As such, we applaud the Committee for its recent 

letter asking the Agencies to withdraw the proposed rule on these 

grounds. 

The RFA and SBREFA Require the Agencies to Seriously Consider Economic Impacts 

The RFA and SBREFA were enacted to address an unfortunate 

reality: regulations usually impose disproportionate costs on small 

businesses. Accordingly, the RFA and SBREFA require that federal 

agencies must seriously consider whether a proposed regulation 

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will have a significant adverse impact on a substantial number of 

small businesses before finalizing the rule. If an agency should determine that there will likely be significant adverse impacts, the 

agency is then required to consider less burdensome alternatives 

consistent with the language of the statute the agency has been 

charged with enforcing. Alternatively the agency might certify that 

there will be no significant adverse impact on the small business 

community, and forgo any further analysis. 

Unfortunately, we note that federal agencies are all too quick to 

certify that regulatory proposals will not impact small business, or 

that the impacts will not be significant. This is a serious problem 

and unfortunately courts typically rubberstamp these certifications 

so long as they are not ‘‘arbitrary or capricious.’’ This is an extraordinary low bar for the certifying agency may explain why federal 

agencies all too often include conclusive language—with little or no 

analysis—certifying that proposed rules will not have significant 

adverse impacts. 

For this reason, NFIB submits that Congress should consider 

measures to put more teeth in the RFA and SBREFA. We note that 

the House of Representatives has already passed the Regulatory 

Flexibility Improvements Act (H.R. 2542). We believe the provisions in this legislation would have presented the Agencies from ignoring their requirements under the RFA. 

In any event, NFIB maintains that the current forms of the RFA 

and SBREFA should be understood as imposing an affirmative requirement to seriously consider the economic impact of the proposed regulation. Unfortunately, the Agencies appear to have given 

short-shrift to this requirement in the present case. In this instance, the Agencies have proposed a rule that will have clear significant economic impacts on many small businesses throughout 

the country, but the Agencies have certified that there will be no 

adverse impact. The Agencies base this certification on the errant 

assertion that the proposed rule will actually narrow the CWA’s jurisdiction—an assertion that is plainly contradicted by the record. 

The proposed regulations will plainly expand the CWA’s jurisdictional reach as a matter of law. And as a matter of fact, the Agencies acknowledge elsewhere in the record that the proposed regulation will result in at least a three percent increase in jurisdictional 

wetlands. NFIB believes the three percent estimate is far too conservative; however, in any event, it patently contradicts the Agencies’ RFA certification that the rule will not hurt small business. 

The proposed rule will have direct adverse impacts on many 

small businesses 

The Agencies are pursuing a significant expansion of federal 

CWA jurisdiction, which will necessarily exert more government 

control over private properties—including many owned by small 

businesses. As a result, the proposed rule will have severe practical 

and financial implications for many. This is because a business 

owner cannot make economically beneficial uses of his or her land 

once it is considered a jurisdictional wetland. And if an owner proceeds with a project on a portion of land that might be considered 

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a wetland, the owner faces the prospect of devastating fines—up to 

$37,500 per day. 

Consequently, most landowners—especially small businesses— 

will be forced into keeping their properties undeveloped. If the purported jurisdictional wetland covers the entire property, the owner 

may well be dined the opportunity to make any productive or economically beneficial use of the property. In some cases, it may be 

possible for the owner to obtain a permit to allow for development; 

however, there is no guarantee a permit will be issued. Moreover, 

for small business owners and individuals of modest means, such 

a permit is usually cost prohibitive. Indeed, the Supreme Court 

noted, in Rapanos v. United States, that the average CWA permit 

costs more than $270,000. 

While multinational corporations with tremendous capital resources might be able to afford such costs, most small businesses 

are without recourse. Usually, their only option is to swallow their 

losses and forgo any development plans. Unfortunately, these small 

businesses suffer greatly because they have usually tied up much 

of their assets into their real estate investments and can neither 

afford necessary permits, nor legal representation to challenge improper jurisdictional assertions—lawsuits challenge these assertions are fact intensive and extremely costly to litigate. 

The proposed rule will also have indirect adverse impacts on 

many small businesses 

Even in the absence of an affirmative assertion of CWA jurisdiction, landowners will be more hesitant to engage in development 

projects or to make other economically beneficial uses of their properties if the proposed rule is approved. Landowners are already 

aware that federal agencies have taken an aggressive posture in 

making jurisdictional assertions in recent years. And now that the 

Agencies have proposed this rule, it is apparent that they are taking an even more aggressive approach to jurisdictional issues—a 

signal that landowners can expect greater enforcement actions in 

the future. 

NFIB already receives questions and concerns from small business owners who are worried about whether the Agencies have jurisdiction over their properties. And we expect to hear from many 

more concerned individuals if the proposed rule is finalized. Indeed, 

under the proposed rule a landowner may have legitimate cause for 

concern if—at any point during the year—any amount of water 

rests or flows over a property. 

And contrary to the Agencies’ assertions, the proposed rule will 

do little or nothing to make CWA jurisdiction clearer for most properties. The reality is that landowners will have to seek out experts 

and legal counsel—which gets costly quickly—before developing on 

any segment of land that occasionally has water overflow. And, the 

only way to have definitive clarity is to seek a formal jurisdictional 

determination from the Agencies, which costs more money and further delays development plans. 

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Of course, in the absence of a formal jurisdictional assessment, 

property owners proceed at their own risk if they wish to use portions of their property that might be viewed as jurisdictional. Indeed, they face ruinous fines of up to $37,500 per day if they 

errantly begin filling in—or dredging—land that the Agencies believe is a jurisdictional wetland. And for this reason any property 

that might be viewed as containing a jurisdictional wetland will be 

greatly devalued. In addition, even if the property owner is found 

to be in the right, he or she may use all their assets fighting to 

prove this fact. 

The Proposed Regulation Radically Expands CWA Jurisdictions 

NFIB views the proposed rule as a jurisdictional land-grab. It 

should be remembered that the Agencies are not writing on a blank 

slate here. The Supreme Court has made clear that there are constitutional limits on the jurisdictional reach of the Clean Water 

Act. The Agencies have been repudiated for overreaching in the 

past, and will be again if the proposed regulation is understood as 

reaching beyond the constitutional limitations recognized in 

Rapanos. 

There are undoubtedly grounds for disputing how far CWA jurisdiction reaches on a case-by-case basis; however, there is no question that Rapanos set the outer-limits. The Agencies cannot exceed 

those limits any more than Congress could. And for several reasons, NFIB believes the proposed regulation go beyond what the 

Rapanos tests allow. NFIB views the proposed rule as a jurisdictional land grab. For the reasons set forth below, we maintain the 

proposed regulation are inconsistent Rapanos and should therefore 

be amended or abandoned entirely. 

This is not an exhaustive list of our legal concerns over the jurisdiction the Agencies propose to assert. NFIB will provide a more 

detailed explanation of these concerns in our formal comments to 

the Agencies. We will be sure to provide the Committee with those 

comments once they are filed. 

(1) The Proposed Regulation Lowers the Threshold for Proving 

Navigability 

The proposed regulation defines ‘‘traditional navigable waters’’ as 

any waters that are used for commerce or that could be used for 

commerce in the future. But the proposed regulation would effectively expand CWA jurisdiction by lowering the threshold for demonstrating the potential for navigable use in commerce. Specifically, the proposed regulation provides that the potential for commercial navigation ‘‘can be demonstrated by current boating or 

canoe trips for recreation or other purposes.’’ While the proposed 

regulation suggests that the Agencies’ assessment must take into 

account physical characteristics of the waterway, it ultimately provides that the water will be viewed as ‘‘traditional navigable waters’’ if there is any evidence that a watercraft can navigate the 

waterway. This would seemingly justify the Agencies treating any 

waterway as ‘‘traditional navigable water’’ if any party can succeed 

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in a single downstream trip—an approach that we think is far too 

easy to satisfy. 

(2) The Proposed Regulation Disregards Whether Interstate Waters are Navigable 

The proposed regulation inappropriately treats all interstate waters as ‘‘waters of the United States,’’ regardless of whether they 

are in fact navigable, or even ‘‘connect[ed] to such waters.’’ But, the 

Supreme Court has made clear that jurisdiction may not be assumed in this manner. To assert jurisdiction, an agency must demonstrate that there is a connection to traditional interstate navigable waters. And the potential for commercial navigation must be 

proven in fact. 

(3) The Proposed Regulation Distorts Justice Kennedy’s ‘Nexus 

Test’ 

The proposed regulation expands CWA jurisdiction by distorting 

Justice Kennedy’s ‘‘significant nexus test,’’ such that it will liberally justify jurisdictional assertions beyond what the test would 

allow for if properly applied. The result is an expansion of CWA jurisdiction. It does so in three ways. One way is that the proposed 

regulation misstates the significant nexus test by replacing the conjunctive word ‘‘and’’ with the disjunctive word ‘‘or,’’ when listing the 

different factors to be considered in determining whether the subject wetland has a sufficient nexus to traditional navigable waters. 

The proposed regulation also seeks to lower the threshold for satisfying the significant nexus test by stating that the test will be satisfied if it can be demonstrated that the chemical, physical or biological effect on jurisdictional waters is more than ‘‘speculative or 

insubstantial.’’ Finally, the proposed regulation changes the significant nexus test by expanding the definition of ‘‘region.’’ 

(4) The Proposed Regulation Asserts Jurisdiction Over Anything 

with a High Water Mark 

The proposed regulation provides that any ‘‘natural, man-altered, 

or man-made water body’’ with an ordinary high water mark will 

be considered a tributary. This requires the Agencies to assert jurisdiction over practically any land over which water occasionally 

flows. But, both Rapanos tests rejects such an expansive interpretation of CWA jurisdiction. 

(5) The Proposed Regulation Places the Burden on the Landowner to Disprove Jurisdiction 

The most fundamental problem is that the proposed regulation 

operates so as to create a presumption of jurisdiction—a presumption that may not bear out in practice. This is highly problematic 

because the burden should not be on the landowner to disprove 

CWA jurisdiction. The burden should rest on the Agencies to prove 

the existence of a ‘‘significant nexus’’ in any given case. 

The small business community needs more time to comment on the proposed rule 

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NFIB believes that because of the substantial increase in jurisdiction under the proposed rule and its technical nature, the small 

business community needs an additional 90 days to adequately 

comment on the proposed rule. 

Specifically, NFIB is attempting to reach out to its membership 

to understand the full impact of this rule. In order to do that, we 

have to first educate our membership on its scope. This will take 

substantial time to do satisfactorily. In addition, NFIB’s Small 

Business Legal Center has filed a Freedom of Information Act request with the Agencies seeking information about how the Agencies determined they could certify the rule as not having a significant impact. We believe the NFIB Legal Center needs additional 

time to receive and review these materials, in order to properly 

comment on the certification. 

Only Congress can fix the CWA’s jurisdictional pitfalls 

As Justice Alito noted in the Sackett v. EPA, the ‘‘reach of the 

Clean Water Act is notoriously unclear.’’ This is undoubtedly true. 

The Supreme Court has addressed CWA jurisdictional questions on 

three different occasions. But, the exact reach of the CWA remains 

a murky question—so much sot hat some legal scholars contend 

that the CWA is unconstitutionally vague because the regulated 

community cannot readily determine whether a given property is, 

or is not, a jurisdictional wetland. 

While it is commendable that the Agencies apparently seek to resolve some of the confusion over the jurisdictional reach of the 

CWA in the proposed regulation, our view is that only Congress 

can fix this problem. The proposed regulation would resolve the 

vast majority of jurisdictional disputes by applying categorical 

rules, which will result in expansive assertions of jurisdiction. But 

Rapanos makes clear that categorical assertions of jurisdiction 

must be rejected. It is simply beyond the authority of the Agencies 

to expand CWA jurisdiction through the rulemaking process in a 

manner that conflicts with the jurisdictional tests set forth in 

Rapanos and her progeny. 

Therefore, NFIB believes action by Congress is necessary to ultimately provide the type of clarification that would allow small business owners to operate without fear of unknowingly violating the 

CWA. 

Conclusion 

NFIB greatly appreciates the efforts of the Committee to hold the 

Agencies to account on its requirements under the RFA. The Committee has demonstrated great leadership in expressing to the 

Agencies the tremendous impact this rule will have on small businesses across America. 

Thank you again for the opportunity to provide this statement 

for the record. NFIB remains eager to work with members of the 

Committee to ensure that the Agencies operate within the bounds 

Congress clearly intended. We also look forward to working with 

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sponsibilities under the RFA in all of its current and future 

rulemakings. 

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May 29, 2014 

The Honorable Sam Graves 

Chairman 

Small Business Committee 

U.S. House of Representatives 

Washington, DC 20515 

The Honorable Nydia M. Velazquez 

Ranking Member 

Small Business Committee 

U.S. House of Representatives 

Washington, DC 20515 

Dear Chairman Graves and Ranking Member Velazquez: 

On behalf of Trout Unlimited’s (TU) 153,000 members nationwide, I am writing to provide testimony for your hearing today titled: ‘‘Will EPA’s Waters of the United States Rule Drown Small 

Business’’? I ask that you please include our letter in the hearing 

record. 

The premise of the hearing appears to be that the recent Army 

Corps of Engineers and EPA proposal on defining the waters of the 

U.S. would, if finalized, be harmful to small businesses. TU strongly supports the proposed rule because it will clarify and strengthen 

the very foundation of the Clean Water Act’s protections for important fish and wildlife habitat. Based on our long experience and the 

detailed economic analysis completed by the agencies and Office of 

Management and Budget for the proposal, we believe that many 

small businesses will benefit from the rule. We urge Committee to 

take a closer look at the proposal and discuss it with the many 

small businesses around the nation which rely upon health of the 

waters of the U.S. We urge the Committee to approach this topic 

with an eye towards making suggestions that will improve the rule. 

When you do, we believe you will find this proposal to be worthy 

of your support. 

The Clean Water Act is very valuable to TU. Our mission is to 

conserve, protect and restore North America’s trout and salmon 

fisheries and their watersheds. Our volunteers and staff work with 

industry, farmers, and local, state and federal agencies around the 

nation to achieve this mission. On average, each TU volunteer 

chapter annually donates more than 1,000 hours of volunteer time 

to stream and river restoration and youth education. The Act, and 

its splendid goal to ‘‘restore and maintain the chemical, physical, 

and biological integrity of the nation’s waters’’ serves as the foundation to all of this work. Whether TU is working with farmers to 

restore small headwater streams in the Mississippi River watershed in Wisconsin, removing acidic pollution cause4d by abandoned 

mines in Colorado, or protecting the world famous salmon-producing watershed of Bristol Bay, Alaska—and its 14,000 jobs—the 

Clean Water Act is the safety net on which we rely. 

Unfortunately, the nation’s clean water safety net is broken, and 

if you appreciate clean water and the Clean Water Act, then you 

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mental question: which waters are—and are not—covered by the 

Clean Water Act. 

Over the last decade, a series of Supreme Court decisions have 

weakened and confused these protections. The Army Corps and 

EPA proposal takes important steps to clarify and restore protections to intermittent and ephemeral streams that may only flow 

part of the year, as well as isolated wetlands. These intermittent 

and ephmeral streams provide habitat for spawning and juvenile 

trout, salmon, and other species, and protecting these streams 

means protecting the water quality of larger rivers downstream. 

Thus, sportsmen strongly support the reasonable efforts embodied 

in the proposed rule to clarify and restore the protection of the 

Clean Water Act to these bodies of water where we spend much of 

our time hunting and fishing. 

I hope that the Committee recognizes the fact that, because of 

the uncertainties caused by the Supreme Court cases, a rulemaking was sought by many business interests, as well as by Supreme Court Justice Roberts who presided over the Rapanos decision which necessitated clarity over the Clean Water Act’s jurisdiction. 

I also urge the Committee to recognize that the proposal works 

to clarify what waters are not jurisdictional. The proposed rule and 

preamble reiterates all existing exemptions from Clean Water Act 

jurisdiction, including many farming, ranching, and forestry activities. These exemptions include activities associated with irrigation 

and drainage ditches, as well as sediment basins on construction 

sites. Moreover, for the first time, the proposed rule codifies specific 

exempted waters, including many upland drainage ditches, artificial lakes and stock watering ponds, and water filled areas created 

by construction activity. 

Small businesses lose when the water that communities rely on 

is polluted, or is at risk of being polluted. The very unfortunate 

chemical spill in the Elk River in West Virginia earlier this year 

makes this point crystal clear. During that event, thousands of 

West Virginians could not drink or utilize their waters. They could 

not fish in or recreate in their home waters. 

Conversely, small businesses win with clean water and healthy fish habitat. Hunting and fishing collectively represent a $200 billion a year economy, supporting 1.5 million jobs. These economic 

benefits are especially pronounced in rural areas, where money 

brought in during the hunting and fishing seasons can be enough 

to keep small businesses operational for the whole year. Through 

licenses, fees and excise taxes on sporting equipment, sportsmen 

also pay hundreds of millions of dollars each year for fish and wildlife management, habitat conservation, and public access. This economic engine runs on clean water. 

The prosperous connection between clean water and small business occurs across the nation many times over, but the guiding and 

outfitting business owned and operated by my friend Tim Linehan 

and his wife Joanne in Libby, Montana is a great example. Tim 

and his partners guide hundreds of anglers from around the U.S. 

who come to fish the beautiful Kootenai and Yaak rivers. Tim’s 

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business employs people in Libby directly, and the purchases he 

makes to keep the businesses running are made throughout Montana and across the nation in terms of fishing equipment and boats 

that he uses to run the business. Tim knows the value of clean 

water to his business and he is a passionate conservationist because of it. He is part of sport fishing business that yields an estimated $340 million dollars in Montana each year. It is the same 

story in many parts of U.S. Whether it is the sport fishing businesses associated with the outstanding fisheries of Missouri, the 

exciting steelhead fisheries of the rivers in northeastern Ohio, or 

the gold medal trout streams of Colorado, clean water and great 

fishing mean strong business opportunities. 

In January of 1991, I testified before this committee on a very 

similar issue, a proposal to revise and improve the Clean Water 

Act wetlands delineation manual used by these same agencies to 

define what were—and what were not—jurisdictional wetlands. I 

defended the Bush Administration’s efforts to improve the manual 

so that it would be a better tool for scientifically defining wetlands 

and providing more certainty for regulated businesses. Many of the 

Small Business committee members who participated in the 1991 

hearing complained about the agencies’ proposal. They said that it 

was a federal land grab, and that it would lead to regulation of 

mud puddles and bird baths. Sound familiar? The agencies proposal that is before us today is not about—as it was not in 1991— 

a federal land grab, nor an effort to regulate bird baths. It is about 

a worthy effort to make a great law, the Clean Water Act, work 

better to protect the waters of the U.S. 

Now 40 years old, the Clean Water Act has come to a major 

crossroads. The agencies which Congress authorized to implement 

the Act, spurred by the Supreme Court itself and a wide range of 

stakeholders, have put forth a proposal that will help strengthen 

the very foundation of the law for years to come. As you scrutinize 

the proposal, we urge you and the Committee to strongly consider 

the views of sportsmen and women, and the many small businesses 

that they sustain with their purchases, and support the reasonable 

and science-based efforts of the Corps and EPA to clarify and restore the Act’s jurisdictional coverage. 

Thank you for considering our views, 

Steve Moyer 

Vice President for Government Affairs 

Trout Unlimited 

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