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WATERS OF THE UNITED STATES: 

STAKEHOLDER PERSPECTIVES ON 

THE IMPACTS OF EPA’S PROPOSED RULE 

HEARING 

BEFORE THE

COMMITTEE ON AGRICULTURE, 

NUTRITION, AND FORESTRY 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 24, 2015 

Printed for the use of the 

Committee on Agriculture, Nutrition, and Forestry 

( 

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

COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY 

PAT ROBERTS, Kansas, Chairman 

THAD COCHRAN, Mississippi 

MITCH MCCONNELL, Kentucky 

JOHN BOOZMAN, Arkansas 

JOHN HOEVEN, North Dakota 

DAVID PERDUE, Georgia 

JONI ERNST, Iowa 

THOM TILLIS, North Carolina 

BEN SASSE, Nebraska 

CHARLES GRASSLEY, Iowa 

JOHN THUNE, South Dakota 

DEBBIE STABENOW, Michigan 

PATRICK J. LEAHY, Vermont 

SHERROD BROWN, Ohio 

AMY KLOBUCHAR, Minnesota 

MICHAEL BENNET, Colorado 

KIRSTEN GILLIBRAND, New York 

JOE DONNELLY, Indiana 

HEIDI HEITKAMP, North Dakota 

ROBERT P. CASEY, Jr., Pennsylvania 

JOEL T. LEFTWICH, MAJORITY STAFF DIRECTOR

ANNE C. HAZLETT, MAJORITY CHIEF COUNSEL

JESSICA L. WILLIAMS, CHIEF CLERK

CHRISTOPHER J. ADAMO, MINORITY STAFF DIRECTOR

JONATHAN J. CORDONE, MINORITY CHIEF COUNSEL

(II) 

(III) 

C O N T E N T S 

Page 

HEARING(S): 

Waters of the United States: Stakeholder Perspectives on the Impacts of 

EPA’s Proposed Rule ............................................................................................ 1 

Tuesday, March 24, 2015 

STATEMENTS PRESENTED BY SENATORS 

Roberts, Hon. Pat, U.S. Senator from the State of Kansas, Chairman, Committee on Agriculture, Nutrition, and Forestry ................................................. 1 

Stabenow, Hon. Debbie, U.S. Senator from the State of Michigan ..................... 2 

Boozman, Hon. John, U.S. Senator from the State of Arkansas ......................... 4 

Tillis, Hon. Thom, U.S. Senator from the State of North Carolina ..................... 5 

Sasse, Hon. Ben, U.S. Senator from the State of Nebraska ................................ 20 

Bennet, Hon. Michael, U.S. Senator from the State of Colorado ......................... 27 

Panel I 

Rutledge, Hon. Leslie, Attorney General, State of Arkansas, Little Rock, 

AR .......................................................................................................................... 6 

van der Vaart, Dr. Donald, Secretary, North Carolina Department of Environment and Natural Resources, Raleigh, NC ........................................................ 7 

Metzger, Susan, Assistant Secretary, Kansas Department of Agriculture, 

Manhattan, KS ..................................................................................................... 9 

Baldi, Josh, Regional Director, Washington State Department of Ecology, 

Bellevue, WA ........................................................................................................ 11 

Panel II 

Padgett, Hon. Lynn M., Commissioner, Ouray County, Montrose, CO .............. 29 

Brodie, Furman, Vice President, Charles Ingram Lumber Company, 

Effingham, SC ...................................................................................................... 30 

Kinley, Jason, Director, Gem County Mosquito Abatement District, Emmett, 

ID ........................................................................................................................... 32 

McLennan, Robert ‘‘Mac’’ N., President & CEO, Minnkota Power Cooperative, 

Inc., Grand Forks, ND ......................................................................................... 33 

Metz, Jeff, Owner & Operator, Metz Land and Cattle Co., Bayard, NE ............ 35 

Peppler, Kent, President, Rocky Mountain Farmers Union, Denver, CO ........... 36 

APPENDIX 

PREPARED STATEMENTS: 

Baldi, Josh ......................................................................................................... 52 

Brodie, Furman ................................................................................................. 55 

Kinley, Jason .................................................................................................... 59 

McLennan, Robert ‘‘Mac’’ N. ............................................................................ 65 

Metz, Jeff ........................................................................................................... 69 

Metzger, Susan ................................................................................................. 74 

Padgett, Hon. Lynn M. ..................................................................................... 76 

Peppler, Kent .................................................................................................... 121 

Rutledge, Hon. Leslie ....................................................................................... 133 

van der Vaart, Dr. Donald ............................................................................... 142 

Page

IV 

DOCUMENT(S) SUBMITTED FOR THE RECORD: 

Baldi, Josh: 

State of Washington letter ............................................................................... 150 

Bennet, Hon. Michael: 

Clean Water Rule, letter from CO elected officials ....................................... 157 

Colorado Elected Officials, EPA prepared statement .................................... 159 

Colorado Clean Water Coalition ...................................................................... 162 

Waters of the U.S., letter to Administrator McCarthy, Sec. McHugh and 

Secretary Vilsack .......................................................................................... 168 

Metzger, Susan: 

Kansas Office of the Governor, prepared statement ..................................... 170 

Roberts, Hon. Pat: 

National Association of REALTORS, prepared statement ............................ 185 

Association of American Railroads, prepared statement .............................. 201 

National Cattlemen’s Beef Association, prepared statement ........................ 203 

David Sunding, Ph.D., The Waters Advocacy Coalition, prepared statement ............................................................................................................... 206 

Stabenow, Hon. Debbie: 

Arkansas Game & Fish Commission, prepared statement ........................... 240 

Choose Clean Water Coalition, prepared statement ..................................... 245 

Healing Our Waters Great Lakes Coalition, prepared statement ................ 249 

‘‘Harvest and Healthy Waters, Op Ed article by Joe Logan ......................... 155 

Kansas Department of Wildlife and Parks, prepared statement ................. 157 

North Carolina Division of Water Quality ..................................................... 159 

North Carolina Wildlife Resources Commission ............................................ 161 

National Wildlife Federation ........................................................................... 169 

Sportsmen Organizations ................................................................................. 177 

Sportsmen Conservation Organization ........................................................... 179 

Trout Unlimited ................................................................................................ 186 

WOTUS sign on letter ...................................................................................... 190 

Ohio Farmers Union President Joe Logan ..................................................... 195 

QUESTION AND ANSWER: 

Brodie, Furman: 

Written response to questions from Hon. Pat Roberts .................................. 202 

Kinley, Jason: 

Written response to questions from Hon. Pat Roberts .................................. 203 

McLennan, Robert ‘‘Mac’’ N.: 

Written response to questions from Hon. Pat Roberts .................................. 204 

Written response to questions from Hon. Debbie Stabenow ......................... 205 

Metz, Jeff: 

Written response to questions from Hon. Pat Roberts .................................. 207 

Written response to questions from Hon. Debbie Stabenow ......................... 208 

Written response to questions from Hon. Joni Ernst .................................... 209 

Metzger, Susan: 

Written response to questions from Hon. Pat Roberts .................................. 210 

Written response to questions from Hon. Debbie Stabenow ......................... 211 

Padgett, Hon. Lynn M.: 

Written response to questions from Hon. Pat Roberts .................................. 213 

Written response to questions from Hon. Debbie Stabenow ......................... 215 

Rutledge, Hon. Leslie: 

Written response to questions from Hon. Debbie Stabenow ......................... 217 

Written response to questions from Hon. Joni Ernst .................................... 219 

van der Vaart, Dr. Donald: 

Written response to questions from Hon. Pat Roberts .................................. 221 

Written response to questions from Hon. Debbie Stabenow ......................... 223 

Written response to questions from Hon. Joni Ernst .................................... 225 

(1) 

WATERS OF THE UNITED STATES: 

STAKEHOLDER PERSPECTIVES ON 

THE IMPACTS OF EPA’S PROPOSED RULE 

Tuesday, March 24, 2015 

UNITED STATES SENATE, 

COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY, 

Washington, DC 

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

106, Dirksen Senate Office Building, Hon. Pat Roberts, Chairman 

of the Committee, presiding. 

Present: Senators Roberts, Cochran, Boozman, Hoeven, Ernst, 

Tillis, Sasse, Grassley, Thune, Stabenow, Klobuchar, Bennet, Gillibrand, Donnelly, Heitkamp, and Casey. 

STATEMENT OF HON. PAT ROBERTS, U.S. SENATOR FROM THE 

STATE OF KANSAS, CHAIRMAN, COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY 

Chairman ROBERTS. Good morning. I call this meeting of the 

Senate Committee on Agriculture to order. Today, we will cover an 

important issue that impacts the agriculture sector and all of rural 

America. 

I know that my colleagues on this Committee hear regularly 

from a variety of constituents, whether it be from farmers, ranchers, state agency officials, or other representatives, about the Environmental Protection Agency’s proposed rule that redefines 

‘‘Waters of the United States’’ under the Clean Water Act. 

As I have said before, this Committee will be the platform for 

America’s farmers, ranchers, small businesses, and rural communities. Too often, I hear from my constituents that they feel ruled 

and not governed. The genesis of today’s hearing is in response to 

exactly that commitment. 

We have before us two panels of witnesses to provide firsthand 

concerns associated with the EPA’s proposed rule on clarifying 

‘‘Waters of the United States.’’ I thank each witness for traveling 

to Washington DC and for providing essential testimony before the 

Committee on such an important issue. 

The perspectives we will hear today range from legal interpretations of EPA’s proposed action, agency officials, and state partners 

who will ultimately be responsible for the administration and, yes, 

enforcement of any changes to the Clean Water Act, and key stakeholders that will inevitably have to navigate the Clean Water Act 

permitting process and bear the unforeseen costs associated with 

2 

expansion of what constitutes a jurisdictional water under the 

Clean Water Act. 

Despite EPA receiving over one million comments on this proposed rule, we will work to ensure that the voices of our constituents and stakeholders impacted by this proposed rule are heard by 

their government. 

I find it particularly troubling that, despite the unanimous outcry from a broad coalition of stakeholders and industries that have 

voiced concern about the manner and process by which EPA advanced this proposed rule, the EPA continues to plunge ahead. 

Just last week, EPA Administrator Gina McCarthy made public 

statements that the Agency is working to finalize the proposed rule 

as early as this spring or summer. However, the Administrator did 

say that they are changing the name of the rule from ‘‘Waters of 

the United States,’’ WOTUS—that is the acronym—to the ‘‘Clean 

Water Rule.’’ 

Well, quite frankly, Administrator McCarthy, merely changing 

the name is not enough. We need to change the rule. If you want 

to protect clean water, it is time to listen and change the rule in 

a manner that allows for public input also collaboration and is effective for farmers, ranchers and rural America. 

EPA also claims that they have listened to farmers and ranchers 

about the concerns they have raised with the proposed rule and all 

of those concerns will be addressed in the final regulation. Other 

than talking points, the EPA has provided no assurances based on 

concrete evidence to alleviate any concerns from the agricultural 

sector or rural America about this rule. 

Given the economic impact this proposed rule will likely impose 

on farmers and ranchers and rural businesses, I have significant 

concerns about the administration’s cost-benefit analysis for this 

rule. The EPA contends that the proposed rule would have a minimal economic impact. Many strongly disagree with that assertion 

and a study commissioned by a broad-based network of impacted 

stakeholders, the Waters Advocacy Coalition, suggests otherwise. 

The study raises critical questions and criticisms with regard to 

many assumptions the EPA factored into the Agency’s cost-benefit 

analysis. 

If anything, more economic analysis is needed before any significant change to the current law is made. 

I look forward to hearing from our witnesses and with that, I recognize our distinguished chairperson emeritus, Senator Stabenow, 

for any remarks. 

STATEMENT OF HON. DEBBIE STABENOW, U.S. SENATOR 

FROM THE STATE OF MICHIGAN 

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

We welcome all of our witnesses today to a very important discussion on a very important topic for all of us. 

For more than 40 years, the Clean Water Act has been a vital 

tool in promoting the health and livelihood of all Americans. 

Speaking as a Michigan native, those of us in the Great Lakes 

State feel a special connection to water, as you can imagine, and 

a strong appreciation for its importance to our everyday lives. 

3 

As chair of the Great Lakes Task Force, I see firsthand the effect 

water has on our economy and our way of life, how it sustains our 

growing agricultural production. In fact, we are very proud of what 

our access to water has allowed us to do in terms of diversity of 

crops and strength of Michigan agriculture. It boosts our manufacturing base and powers a vibrant tourism industry, and frankly, it 

is just part of who we are in Michigan. 

Of course, quality of water is essential to quality of life in every 

state. All Americans need a clean, reliable source of water. It is for 

this reason we meet today to discuss the importance of maintaining 

the health and integrity of our nation’s waters in a manner that 

will not unintentionally burden our nation’s farmers and ranchers 

now or in the future. 

Last year, as a result of confusion created by Supreme Court decisions in 2001 and 2006, the Environmental Protection Agency 

proposed a rule to define the ‘‘Waters of the United States.’’ In fact, 

this is an issue that has been worked on for a number of years, 

with both the previous administration, the Bush administration as 

well as the Obama administration, to clarify the confusion. 

Although the proposal was not meant to target agriculture, the 

proposed rule has led many to question its intent as well as the 

standing of agriculture’s historic exemptions from Clean Water Act 

regulations. 

In July, July of last year, 2014, I joined several of my colleagues 

in a letter to the EPA and the Army Corps, expressing strong concerns with certain parts of their proposed rule that we believe require clarification before a final rule is published. In the letter, we 

emphasized the importance of clean water and the need for providing certainty to the agricultural community. We also asked several hard questions, demanding better definitions on key issues 

that directly affect agriculture, including terms like ponds, ditches, 

and floodplains. 

Based on the response I received and several discussions I have 

had with the EPA since then, I believe the appropriate changes will 

be made to ensure that our agricultural producers get the certainty 

they need and that they deserve. 

This is critically important so that our farmers and ranchers can 

continue operating with the confidence that their farming activities 

will not be regulated under the Clean Water Act. In fact, I believe 

we are all committed to making sure that is the case. 

Since the Clean Water Act’s inception, the vast majority of agricultural activities have not been targeted by the EPA and states 

that implement the Act. I do not believe this rule will change that 

fact, and I agree that agricultural producers need to feel confident 

that is the case. 

It is our responsibility to work with the EPA, and Mr. Chairman, 

I certainly want to work with you, to make sure that the final rule 

is clear concerning the historic role of the Clean Water Act and agriculture. 

I look forward to working with members of our Committee to accomplish this goal so that we can maintain two essential needs, 

two essential needs for our people—clean water and agricultural 

productivity. 

4 

Mr. Chairman, there is a group of letters that I would like to 

submit for the record from sportsmen’s groups like Trout Unlimited 

as well as the World Coalition comment letter, Ohio Farmers 

Union, a number of other organizations, who are part of the 87 percent of those 1 million comments you talked about that actually 

were supportive of moving forward. 

Chairman ROBERTS. Without objection. 

[The following information can be found on pages 240 through 

295 in the appendix.] 

Chairman ROBERTS. I thank the Senator for her statement. 

Welcome to our first panel of witnesses before the Committee 

this morning. 

Senator Boozman. 

STATEMENT OF HON. JOHN BOOZMAN, U.S. SENATOR FROM 

THE STATE OF ARKANSAS 

Senator BOOZMAN. Thank you, Mr. Chairman, Ranking Member 

Stabenow. 

We want to welcome Attorney General Rutledge from Arkansas 

to testify before the Committee today. 

We appreciate the fact that you have extended the invitation for 

this distinguished witness from Arkansas to come up. 

In fact, we thank all of you all for being here. 

Attorney Rutledge was elected our state’s 56th attorney general 

last November, and she is the first woman in Arkansas history to 

be elected to this office. 

In her legal career, Ms. Rutledge served as legal counsel to the 

governor of Arkansas, was a prosecuting attorney, and provided 

legal services to the Arkansas Division of Children and Family 

Services, where she advocated for some of our most vulnerable 

young Arkansans. 

Additionally, the attorney general has a personal connection to 

farming and ranching. She grew up on a cattle farm near Batesville, Arkansas. So she understands that protecting our land and 

our water is very important to Arkansas farm families and farm 

families in general. 

The attorney general’s written testimony highlights a few of the 

serious legal problems with the EPA’s attempted power grab, and 

it demonstrates that Arkansas jobs and jobs across the country are 

really at risk if this rule is carried out. 

I appreciate that the attorney general’s testimony emphasizes 

that water quality has being well protected in the past through cooperation between the states and the Federal Government. 

Unfortunately, I have got to—the only problem right now with 

being in the Senate is that you have got all of these different 

things that you have to be at. I am Chairman of a subcommittee, 

Financial Services, in Appropriations. 

So I have got to run out. I will be back in a little bit, though, 

after I rapidly dispense with my committee. 

Welcome to all of you. 

Thank you once again for having our attorney general here to 

testify, Mr. Chairman. 

Chairman ROBERTS. Ms. Rutledge, thank you very much. 

Thank you very much, Senator. 

5 

Senator Tillis. 

STATEMENT OF HON. THOM TILLIS, U.S. SENATOR FROM THE 

STATE OF NORTH CAROLINA 

Senator TILLIS. Thank you, Mr. Chairman. Thank you for the opportunity to attend this hearing and for the personal opportunity 

for me to introduce one of the members of the panel, Dr. van der 

Vaart, our secretary of the Department of the Environment and 

Natural Resources down in North Carolina. 

Dr. van der Vaart started his career in science about the same 

time that leisure suits and disco were popular. He has been in it 

for a long time. For two-thirds of that time, he has been in the 

State in a very important agency, and he has worked his way 

through that agency. 

He has a Ph.D. in chemical engineering from Trinity College, 

University of Cambridge. He also has degrees from University of 

North Carolina-Chapel Hill and N.C. State, 2 of the 3 North Carolina schools in the Sweet 16. 

If you take a look at his CV, I would point out he has written 

extensively on issues related to the environment and he spent a career in North Carolina serving under Republican and Democrat administrations and has shown a high degree of independence 

throughout that. 

He has written numerous papers, many of which have titles I 

cannot quite pronounce, but he wrote one back in 2005 that I think 

is worth note. It is ‘‘EPA’s Startup, Shutdown, and Malfunction 

Policy: The Cart and the Horse Are in the Ditch.’’ 

I think what strikes me most about Dr. van der Vaart is he has 

shown great independence and he is willing to come before this 

Committee, while serving as a head of an environmental agency in 

North Carolina, and he is here to talk about government overreach. 

I hope everybody will listen to his words and his advice. I think 

we can learn a lot from it. 

Thank you, Dr. van der Vaart. 

Senator STABENOW. Mr. Chairman, might I have a word of personal privilege. 

Chairman ROBERTS. Yes. The Senator is recognized. 

Senator STABENOW. I just want to recognize also that Michigan 

State University is in the Sweet 16. We will see you there. 

[Laughter.] 

Chairman ROBERTS. I am happy to introduce to the Committee 

today, Ms. Susan Metzger, who serves as the Assistant Secretary 

of the Kansas Department of Agriculture. 

Susan and I say ‘‘Go Shockers.’’ A very unusual team, they play 

basketball like it should be played. 

We are a little off-topic here. 

Ms. Metzger brings a wealth of experience and knowledge about 

the topic of today’s hearing. Prior to her role at the Kansas Department of Agriculture, Ms. Metzger served as Chief of Planning and 

Policy at the Kansas Water Office for 11 years. 

One thing you may not know about her is that she is a licensed 

professional wetlands scientist. 

I look forward to Susan’s testimony and insight. 

6 

I would also like to introduce Mr. Josh Baldi, who currently 

serves as the Regional Director of the Washington State Department of Ecology. Previously, Mr. Baldi has served in several capacities at the Washington State Department of Ecology as well working in the conservation nonprofit sector. 

Mr. Baldi, welcome, and I look forward to your testimony. 

Ms. Rutledge. 

STATEMENT OF THE HONORABLE LESLIE RUTLEDGE, 

ATTORNEY GENERAL, STATE OF ARKANSAS 

Ms. RUTLEDGE. Good morning, Chairman Roberts, Ranking 

Member Stabenow, members of the Committee. 

I am Leslie Rutledge, attorney general of Arkansas. It is an 

honor to appear before this Committee that includes my own Senator, John Boozman. 

As Arkansas’ chief legal officer, I wish to raise concerns with the 

proposed rule to amend the definition of ‘‘Waters of the United 

States’’ under the Clean Water Act and the practical effects this 

unlawful expansion of Federal jurisdiction will have on the Delta 

Farm Region of East Arkansas and the timber industries of the 

Southwest. 

I grew up on a cattle farm near Batesville close to the White 

River and understand the impact this proposed rule would have on 

agriculture. 

The Clean Water Act achieves its regulatory goals through jurisdiction of our navigable waters, which it defines as ‘‘Waters of the 

U.S.’’ 

The EPA and the Corps of Engineers have attempted to define 

and interpret ‘‘Waters of the U.S.’’ through regulation. Often, the 

agencies’ interpretation was applied too broadly and was struck 

down by the Supreme Court. 

Recently, in the Rapanos case, a test emerged that requires the 

water or wetland in question to possess a significant nexus, or connection, to traditionally navigable waters. The agencies assert that 

the proposed rule is necessary to clarify the test, but nothing in the 

proposed rule offers clarity. Instead, it is complicated, overreaching, and infringes on states’ rights. 

First, the proposed definition of a tributary goes beyond the significant nexus test. 

In Rapanos, Justice Kennedy stated that the Clean Water Act 

would not apply to drains, ditches, and streams remote from any 

navigable waters and carry only minor water volumes toward it. 

However, the agencies expand the definition of tributary to include waters that contribute flow, whether directly or through another source. Even a trickle or roadside ditch can be characterized 

as flowing water. An irrigation canal running through a farmland 

to a local creek could be covered under the proposed rule in direct 

contradiction of Justice Kennedy’s holding. 

Second, the proposed case-specific determination of what qualifies as a significant nexus is vague and ambiguous, causing confusion and extra cost for states and business owners. 

The Supreme Court has stated that administrative rules cannot 

be so vague that they fail to provide a reasonable opportunity to 

7 

understand what is prohibited. The vague terms used in the proposed rule would confuse a reasonable person. 

Farmers and business owners should not have to wait until faced 

with a penalty to learn that the stream or wetland on their property falls under the Clean Water Act. Regardless of size, no farm 

or ranch can operate under such conditions. 

At the same time as this rule was proposed, the agencies released an interpretive rule to clarify normal farming practices. 

The Delta Region is home to advanced farming technologies that 

are cutting-edge and not considered normal in other parts of the 

country but provide benefits to our farmers and the environment 

through efficient use of water and fertilizer. 

Although the rule was withdrawn, it is an example of the EPA 

to arbitrarily expand the Act without public notice and comment. 

The scope of the proposed rule will have negative impacts on Arkansas beyond the legal arguments. In 2012, agriculture added 

over $20 billion to the Arkansas economy; that is 18 cents of every 

dollar added, 1 in every 6 jobs. Arkansas is first in rice production, 

third in cotton, fifth in timber, and tenth in soybeans and grains. 

Clearly, overreaching administrative rules would put this sector of 

our economy in jeopardy. 

As the first conservationists protecting the land and water, farmers and ranchers want to follow the law. Restrictive and confusing 

administrative rules will inhibit their ability to farm and drive future generations out of agriculture, ultimately impacting the food 

supply of all Americans. 

My office has urged the agencies to withdraw the rule and will 

pursue all legal challenges necessary to prevent an unlawful rule 

from impacting the State of Arkansas. 

Thank you, again, Mr. Chairman for the opportunity to appear 

before you today. 

This concludes my testimony, and I am happy to answer any 

questions that you or other members of the Committee may have. 

[The prepared statement of Ms. Rutledge can be found on page 

133 in the appendix.] 

Chairman ROBERTS. We thank you very much for your testimony. 

Secretary van der Vaart. 

STATEMENT OF DONALD VAN DER VAART, SECRETARY, 

NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND 

NATURAL RESOURCES 

Mr. VAN DER VAART. Chairman Roberts, Ranking Member Stabenow, and members of the Committee, thank you for inviting me to 

testify today. 

Governor Pat McCrory, Agriculture Commissioner Steve Troxler, 

and I would like to recognize Senator Tillis, who sits on this Committee, and thank him for being such a great advocate for North 

Carolina’s agricultural industry. 

As Secretary of the North Carolina Department of Environment 

and Natural Resources, I appreciate the opportunity to share my 

views on the topic of the proper definition of WOTUS, particularly 

as it affects the agricultural industry in North Carolina. 

8 

I would note that my remarks today are consistent with the positions taken by the North Carolina Department of Agriculture and 

Consumer Services on these proposed rules. The agricultural industry contributes approximately $78 billion 

to our state economy annually and employs 16 percent of the workforce. North Carolina’s 52,000 farmers grow more than 80 different 

commodities and utilize more than a quarter of the state land to 

furnish consumers a dependable and affordable supply of food and 

fiber. 

We are greatly concerned that the proposed rule will cause this 

important industry, and other significant segments of our state’s 

economy and infrastructure, to fall victim to ever-expanding Federal overreach that will unnecessarily stifle economic growth and 

prosperity with little, if any, environmental benefit. 

The Clean Water Act delegates primary responsibility for managing land and water resources to the states. North Carolina, like 

many other states, has programs in place to protect water quality 

that are comprehensive and sophisticated. Our effective regulatory 

framework nullifies any justification for the Federal agencies’ proposed expansion of the meaning of WOTUS. 

I agree with other stakeholders, including the North Carolina 

Farm Bureau, that expanding the definition will likely be particularly problematic for farmers, especially those in Eastern North 

Carolina. If the proposed rule goes into effect in its current form, 

large swaths of farmland could become WOTUS, and land that is 

close to those newly determined waters could also be subject to 

state and Federal regulatory programs. 

One way the EPA proposal will subject farms in North Carolina 

to more pervasive Federal intrusion is through the newly proposed 

definition of ‘‘adjacent.’’ The proposed redefinition adds the extreme 

and the entirely new terms, ‘‘riparian areas’’ and ‘‘floodplains’’ and 

‘‘surface’’ or ‘‘shallow subsurface hydrologic connection’’ as a basis 

for inclusion into features into the jurisdiction. 

Their definitions for floodplain and riparian area are both exceedingly elastic, providing no time reference or limitation on 

scope, and leaving critical determinations ultimately to be made by 

the EPA. 

The effect of these proposed definitions will be akin to an unfunded mandate. Many more waters will be brought into the Clean 

Water Act jurisdiction, requiring the issuance of more Federal and 

state permits. Increases in state permit applications will further 

tax our limited state resources. Additional permitting requirements 

and added costs will apply not only to the agricultural industry but 

will span many other sectors, including construction, manufacturing, transportation and tourism industries as well as local governments. 

North Carolina already has regulatory programs in place for the 

protection of our surface and groundwater resources. The inclusion 

of many more features within the scope of WOTUS will trigger the 

applicability of these exclusively state law-based programs on areas 

that were never intended to be regulated. 

The lack of EPA’s transparency during this rule development is 

also deplorable. The EPA assembled maps that demonstrate the 

massive Federal takeover of dryland in America, but the Agency 

9 

was reticent to make them public. It was only in response to questioning at the congressional hearing in July of 2014 that the EPA 

admitted they had even assembled these maps which show that, for 

example, almost all of North Carolina could be considered to be 

streams and water bodies under the new rule. 

Finally, there are legal concerns to consider as well. If EPA, 

based on the claim of statutory ambiguity, moves forward with this 

new interpretation, claiming that drylands are navigable waters, it 

will yet be another example of the EPA abusing the public trust 

it was granted by the judiciary through the Chevron decision. This 

raises the question of whether the EPA should be afforded any deference in interpreting statutory provisions. 

Simply stated, before EPA buries the most efficient and productive farmers in the world with red tape, I would urge them to sit 

down with scientists and engineers that actually implement these 

rules and listen to what they have to say. 

Thank you for the opportunity to provide this testimony, and I 

would be happy to answer any questions you may have. 

[The prepared statement of Mr. van der Vaart can be found on 

page 142 in the appendix.] 

Chairman ROBERTS. Thank you, Mr. Secretary. 

We are under very strict time restrictions because we have 10 

witnesses and we have votes at noon. 

Secretary Metzger. 

STATEMENT OF SUSAN METZGER, ASSISTANT SECRETARY, 

KANSAS DEPARTMENT OF AGRICULTURE 

Ms. METZGER. Thank you, Mr. Chairman, and thank you for the 

opportunity to appear today and share Kansas’s perspective on the 

impact of the Clean Water Rule on Kansas agriculture and water 

management. 

According to the EPA web site on the Clean Water Rule the rule 

is purported to help states manage their water resources and will 

not broaden the coverage of the Clean Water Act. I am here today 

to testify that presumption is not true when describing the rule’s 

application in Kansas. 

We contend that while certain tributaries are ‘‘Waters of the 

U.S.’’ under the existing regulation, the proposed rule gives a regulatory definition of tributary that covers waters to include all 

streams with or without flow. There will be no more need to make 

a significant nexus determination for dry streams or their adjacent 

waters because the rule automatically considers them to be 

‘‘Waters of the U.S.’’ 

Applying this blanket definition of tributary in Kansas will result 

in a nearly 460 percent increase in the number of stream miles 

classified as ‘‘Waters of the U.S.’’ in Kansas, subject to all programs 

and provisions of the Act. 

A nationally defined one-size-fits-all definition for terms like 

‘‘tributaries’’ is not appropriate given the scarcity of flow in western 

states, such as Kansas, and the inherent variability of those 

streams to impact downstream waters. 

Rainfall across Kansas ranges from about 15 inches or less with 

our border with Colorado to more than 40 inches in Southeast Kansas. 

10 

Low rainfall in the west combined with deep depths to the high 

plains aquifer make all but the major streams in the west, ephemeral, with their channel beds permanently above the water table. 

These streams, now and forever, only flow in response to localized 

rainfall. Yet, under the proposed rule, any stream with a bed, 

bank, and ordinary high-water mark will be deemed a tributary 

and, in such, considered jurisdictional under the Act. 

In 2001, the Kansas legislature defined a classified stream for 

purposes of applying the Clean Water Act and water quality standards in implementing programs. The statute and associated regulations directs protection and water quality to the State’s significant 

water resources while, logically, excluding ephemeral streams, 

grass, vegetative or other waterways, culverts, and ditches. 

Kansas has demonstrated great success in managing our water 

resources through the implementation of locally driven water quality plans. Kansas has produced improvements in water quality, including the removal of several water bodies from the State’s list of 

impaired waters. These improvements are the result of appropriate, positive coordination of state agencies with local jurisdictions and individual landowners. 

The proposed rule and the intervention of Federal agencies into 

management of marginal waters will degrade those positive relationships. 

The distraction and diversion brought forth by this rule will 

incur additional expenditures at the state level for marginal environmental benefit and diminished success in water quality improvements in Kansas. 

The inevitable slowdown in permit reviews and increase in bureaucratic paperwork will unnecessarily delay and deter economic 

growth and impede the adoption of soil and water conservation 

practices by the farmer and ranchers of Kansas 

As shared during the public comment period by many of the agriculture-related organizations and state agencies in Kansas, as well 

as Governor Sam Brownback, we request the proposed rule be 

withdrawn and any future discussions begin anew with the full 

consultation and advice of the State. 

Mr. Chairman, as we saw with the now withdrawn interpretive 

rule, Federal rulemaking without proper consultation with the 

states lead to unintended consequences. 

I believe that today’s panel discussion restores state-level discussion toward the development of a better, meaningful rulemaking 

under the Act. We hope that the states, as primary implementers 

of the Act, begin to have a significant role in crafting the future 

of rules by the Federal agencies. 

Thank you for the opportunity to share Kansas’s perspective. 

[The prepared statement of Ms. Metzger can be found on page 74 

in the appendix.] 

Chairman ROBERTS. We thank you for your testimony. 

Mr. Baldi. 

11 

STATEMENT OF JOSH BALDI, REGIONAL DIRECTOR, 

WASHINGTON STATE DEPARTMENT OF ECOLOGY 

Mr. BALDI. Chairman Roberts, Ranking Member Stabenow, members of the Committee, thank you for the opportunity to testify before you today. 

The region I oversee in Northwest Washington includes a large 

portion of Puget Sound, is home to Washington’s tech and aerospace industry, and is also an important part of the State’s $49 billion agricultural sector. Notable commodities produced in the region are milk, nursery, potatoes, and we are the nation’s leader in 

raspberry production. Washington State is also renowned for 

unique resources such as shellfish and salmon, which are important to our economy, way of life, and tribal cultures. 

As the water quality authority for Washington State, Ecology is 

responsible for implementing all Federal Clean Water laws and 

regulations, including 401 water quality certifications for Federal 

Clean Water Act Section 404 permits. 

Ecology was one of 4 Washington State agencies that signed a 

consensus comment letter on November 12, 2014, expressing support for the Corps and EPA to clarify the definition of ‘‘Waters of 

the U.S.’’ The other signatory agencies were the State Departments 

of Transportation, Fish and Wildlife, and Agriculture. That comment letter has been submitted for the record. 

We appreciate the Corps’ and EPA’s attempts to clarify jurisdiction for ‘‘Waters of the U.S.’’ through the proposed rule. As the Federal agencies worked through the public comment process last summer and fall, we have been appreciative of their interaction with 

the states. Work does remain, but the EPA, in particular, has been 

responsive to many of the concerns that have been raised. 

Ecology believes the rule helps to clarify what types of water 

would be considered jurisdictional under the Clean Water Act and, 

specifically, where proponents may need Section 404 permits from 

the Corps and related Section 401 water quality certifications from 

the State. The increased clarity provided by the proposed rule 

should help increase predictability and streamlining where permits 

are justified. 

The proposed rule does not resolve all the uncertainty over what 

ditches are jurisdiction. So case-by-case determinations will still be 

needed. However, the rule attempts to narrow the number of individual jurisdictional calls needed by identifying those ditches that 

are clearly non-jurisdiction, such as those excavated in, and draining only, uplands. 

As a practical matter, the types of waters that the rules identifies as the ‘‘Waters of the U.S.’’ are consistent with the jurisdictional calls that we have seen in practice by the Corps in Washington State for many years. Consequently, the rule will not result 

in regulatory change for permittees in our State. 

At the Federal level, we also do not believe the proposed rule affects the existing broad exemptions under the Clean Water Act for 

farming and ranching activities. Under the ‘‘Waters of the U.S.’’ 

Rule, some farm ditches may be jurisdictional tributaries, but 

maintaining them in the course of normal agriculture does not require a Section 404 permit. 

12 

The rule does acknowledge that some ditches are tributaries that 

should be protected. Some Washington ditches are actually channelized streams, and as such, they are appropriately designated as 

tributaries. 

In our experience, the Corps has not exerted jurisdiction over 

ditches that are not streams or which drain only uplands. 

Ecology believes there are some definitions that can, and should, 

be further refined on a regional basis. We recommend development 

of these regional appropriate definitions of matters such as 

floodplains and riparian areas so that state and Federal agencies 

have a common understanding of those terms. 

In closing, Washington State supports the proposed rule because 

efforts to date between Federal agencies and the states have been 

interactive and positive. Additional work does remain, but we 

would like to build upon that interagency cooperation. 

The proposed rule will clarify that a small, but important, number of streams and wetlands deserve coverage under ‘‘Waters of the 

U.S.’’ 

The increased clarity sought in the rule will help create a more 

predictable and efficient permitting system. 

Lastly, the approach embodied in the EPA and Corps proposed 

rule adheres closely to the system Washington State has had in 

place for more than 25 years. It is an approach that has worked 

for people, farms, and fish, and we believe Washington State’s approach can be strengthened by the proposed rule. 

Thank you for the opportunity to appear before this Committee 

and share our State’s perspective on this important rule. 

[The prepared statement of Mr. Baldi can be found on page 52 

in the appendix.] 

Chairman ROBERTS. I ask unanimous consent to enter the following into the hearing record: A statement on behalf of the Association of American Railroads, a statement on behalf of the National Cattlemen’s Beef Association, a statement on behalf of the 

National Association of Realtors, and a study entitled ‘‘Review of 

2014 EPA Economic Analysis of the Proposed Revised Definition of 

Waters of the U.S.,’’ without objection. 

[The following information can be found on page 185 through 206 

in the appendix.] 

Chairman ROBERTS. Secretary Metzger, simply put, given your 

role at the Kansas Department of Agriculture, what do you hear 

most from producers in Kansas about the proposed rule? 

Ms. METZGER. Well, 90 percent of the land use in Kansas is devoted to agricultural production. So, mostly, we hear that any expansion has a great impact on the land use in Kansas. We rank 

third in the nation in agricultural production of acres in land use. 

I would say the primary concern that we hear is that the expansion of those waters that are now classified as ‘‘Waters of the U.S.’’ 

and fall under Federal jurisdiction means an expansion of potential 

Federal oversight into basic water management and land management from an agricultural perspective. 

I also hear increasing reluctance from producers to participate in 

Federal cost-share programs for conservation practices as a result 

of the proposed rule. 

Chairman ROBERTS. Thank you for that. 

13 

To date, the EPA has not released any mapping capabilities associated with the proposed rule to illustrate exactly what water bodies they are trying to capture. 

Given what you know today, how many water bodies in Kansas 

do you think will be considered ‘‘Waters of the U.S.’’ and how will 

this impact an agriculture producer in Kansas? 

Ms. METZGER. Sure. Mr. Chairman, today, under the existing 

regulation, we classify ‘‘Waters of the U.S.’’ to be those classified 

streams in Kansas. Those are those water bodies with a designated 

use according to Kansas statute, which is about 30,400 stream 

miles in Kansas. 

In the absence of a map or different information from the EPA, 

we are going by what we consider to be the definition as described 

in the proposed rule and using the national hydrographic database. 

Using that and the defined streams in Kansas would result in an 

increase of those ‘‘Waters of the U.S.’’ now being around 170,000 

stream miles. So that is where we come up with the 460 percent 

increase in classified waters or ‘‘Waters of the U.S.’’ 

Again, that reaches now into water bodies throughout Western 

Kansas and has a significant impact not only in traditional Clean 

Water Act 404 regulations but then bleeds into pesticide applications and NPDES permits and livestock waste management. 

Chairman ROBERTS. Well, let the record show we have not had 

much water in Western Kansas for three years, but we hope that 

changes. 

This is for the entire panel: 

What economic impacts would this proposed rule have on your 

state? 

Would any other industries that support rural America be affected? 

Would there be any potential impacts on the number of acres in 

production or an adverse impact on land values because of the regulatory burden associated with this proposed rule? 

Ms. Rutledge. 

Ms. RUTLEDGE. Thank you, Mr. Chairman. 

I believe that the economic impact alone could be devastating for 

Arkansas, particularly, as I mentioned in my statement, the eastern part of Arkansas. Again, Arkansas is first in rice, third in cotton, fifth in timber, tenth in soybeans and grains. The Delta Region 

of Arkansas would simply be crippled. 

If you are a farmer in Arkansas, trying to determine whether or 

not one of your fields would fall under this proposed rule, you 

would look to this. I hold not a copy of ‘‘War and Peace,’’ not a copy 

of the ‘‘Good Book,’’ but a copy of the proposed rule. Nearly every 

farmer in Arkansas would have to obtain legal counsel to determine whether or not a field on their land falls under this EPA proposed rule. 

Chairman ROBERTS. Can you hold that a little higher? 

Ms. RUTLEDGE. I do not know that my muscles can, sir, but I will 

try. 

Chairman ROBERTS. We will have a little exercise, if you can 

wave that around. 

Secretary van der Vaart. 

14 

Mr. van der Vaart. Well, I would like to add to comments already 

made. In looking at North Carolina’s—or, I should say EPA’s view 

of, North Carolina’s wetlands, which has massively expanded how 

we regulate them a concern that has not been raised so far is the 

uncertainty and the devaluation in land prices that uncertainty 

will bring. 

If farmers need to go to the bank, the uncertainty will bear a 

cost. Their land values clearly will go down until this is all sorted 

out, and that results in a reduction in the farmers ability to expand 

their operations. 

Chairman ROBERTS. Susan, I think your testimony pretty well 

covered it. Do you want to add something real quick? 

Ms. METZGER. Sure. Thank you, Mr. Chairman. 

I might note from our State’s perspective we do spend about $300,000 every year on our classified waters, monitoring them, and 

updating our use attainability analyses. If this rule is adopted, that 

would certainly expand our universe of those waters and need to 

expend state limited resources on those use attainability analyses. 

Chairman ROBERTS. Mr. Baldi, you are for this rule, and you 

want to build on it. Any comment on my question? 

Mr. BALDI. Just again, in the State of Washington, we have been 

implementing a system with the Federal Corps and EPA for about 

25 years that is very similar. 

We believe this rule clarifies our approach in Washington State. 

The Federal Clean Water Act clearly exempts from permitting 

under Section 402 and 404 permits. 

We do not see this proposed rule as changing that. 

Chairman ROBERTS. Senator Stabenow. 

Senator STABENOW. Thank you, Mr. Chairman. 

First, let me say one of the things that I think is important just 

to emphasize we certainly want clarity. We certainly want agriculture not to have the impacts you are talking about. 

The good news is, Ms. Rutledge, what you held up. All the historic agricultural exemptions are in there. So that is the good 

news—that, in fact, if you are in agriculture, those exemptions are 

in there, and we want to make sure they are in there, and the fact 

that we want to make sure that we are clarifying so that our farmers have the certainty that they need. 

Mr. Baldi, could you talk a little bit more about what, if any, 

practices that you have, as it relates to regulating agriculture, 

would change under the proposed rule? 

Mr. BALDI. Yeah. In general terms, the agricultural community 

is encouraged to implement best management practices through 

319 funding, other funding sources, in terms of the exclusion rules 

for Section 402 and 404. 

Again, clearly, we do not believe that any additional permitting 

would result from this rule. 

It is important to note that concentrated animal feeding operations, are not exempt. Those require NPDES permits in the State 

of Washington. There are 11 facilities that are covered under the 

CAFO permit. But that is the only Federal regulation through permits that we do in the agricultural sector in the State of Washington. 

Chairman ROBERTS. That is current law, correct? 

15 

Mr. BALDI. Correct. 

Senator STABENOW. That is under current law. 

Mr. BALDI. Correct. 

Senator STABENOW. So that would not change. 

Did you have concerns about the proposed rule? 

I am wondering if you felt that you were heard by the EPA and 

the Army Corps as it relates to the outreach and the 200 and, I 

think it is, 7 days of input that they have received on the comments. 

I mean, do you think that the final rule is going to reflect the 

concerns that you raised, if you raised any? 

Mr. BALDI. We certainly raised concerns early in the process. 

When the Corps and EPA announced this rule, like the members 

of the Committee, like the other states, we had significant concerns 

with the original proposal that was introduced last summer. 

Perhaps in response to this Committee’s intervention or perhaps 

just in response to the outcry, subsequent late summer/fall, EPA in 

particular; they held webinars. They had conference calls. They 

met in person. They really doubled their efforts, in our opinion, to 

work with the states and listen to the states and be responsive, 

working towards clarification. 

As has been mentioned, we believe there are some additional details that could be worked out—regional details. There are regional 

differences. 

There has been other types of rulemaking, such as the electronic 

reporting for the NPDES rule, that EPA has worked very closely 

with the states to finalize that e-reporting rule. We would recommend as they finalize that rule that they engage in a similar 

process to recognize regional differences for the proposed ‘‘Waters 

of the U.S.’’ Rule. 

Thank you. 

Senator STABENOW. Thank you very much. 

For Ms. Rutledge and Secretary van der Vaart and Ms. Metzger, 

I think it is important to clarify sort of the historical positions of 

your states because after the 2001 Supreme Court decision that 

limited the reach of the Clean Water Act the EPA, at that time 

under the Bush administration, began writing a rule in response 

to the decision. Many states, including each of your states, submitted comments to the EPA in 2003, asking the Agency not to reduce the jurisdictional reach of the Clean Water Act. 

In fact, Mr. Chairman, I want to submit those letters for the 

record. 

[The following information can be found on page 245 in the appendix.] 

Senator STABENOW. We have, in fact, in there, North Carolina 

specifically asked the EPA to allow the Clean Water Act jurisdiction over ‘‘intermittent and small perennial streams.’’ 

Kansas defended the Clean Water Act jurisdiction over ‘‘isolated, 

interstate, non-navigable waters.’’ 

Arkansas argued against the EPA reducing the Clean Water Act 

reach over any areas they currently regulated before the court case, 

including ‘‘perennial, intermittent, and ephemeral streams and 

wetlands.’’ 

16 

Arkansas specifically stated, ‘‘In 1985, the Supreme Court upheld 

Congress’s grant of broad jurisdiction based on the recognition that 

all waters are connected. The narrow Swank decision should not 

completely undermine that previous broader ruling.’’ 

So that is clearly different. 

I realize there has been a second decision that muddied the 

waters even more in terms of confusion, but this seems to be the 

opposite of what you are saying today. So I am wondering about 

the reason for the reversals. 

Mr. van der Vaart. Senator Stabenow, from North Carolina’s 

viewpoint, we do not see that as a reversal. The position back then 

is, in fact, not consistent with the proposed rule. 

The proposed rule far expands jurisdictional waters from the 

heady days of early 2000. We do regulate intermittent streams in 

North Carolina, but that is not the limit of the definition in the 

proposed rule. 

So we think we are being consistent. 

Ms. METZGER. Great. Thank you, Senator Stabenow. 

I would concur that Kansas appreciated that there was the effort 

in the past two years to provide some additional clarity on ‘‘Waters 

of the United States.’’ We were offered the opportunity to provide 

that input. We provided that input both as a State and through the 

Western States Water Council. 

We do not believe that what is embodied now in the proposed 

rule reflects the concerns and the ideas that we brought forward 

at that time. 

In fact, after 2001, when we adopted our state regulations for defining classified waters and asked the EPA to review those, they 

provided a concurrence on the waters that we defined to be classified waters and ‘‘Waters of the United States’’ and agreed with our 

exemption of certain ephemeral waters from that. We feel that this 

proposed rule goes back on that agreement. 

Ms. RUTLEDGE. Senator Stabenow. 

Senator STABENOW. Yes. 

Ms. RUTLEDGE. I thank you for the question. 

Yes, this proposed rule goes far beyond the intent of Congress 

and the Clean Water Act. It flies in the face of the Congress. It 

flies in the face of the judiciary in the Rapanos holding, which was 

a plurality holding; so it is not majority law. 

What is being proposed by the EPA expands so far beyond that 

it includes waters that might flow into the waters whereas, before, 

it was a set piece of water, and I think that is the difference that 

you have seen, as Mr. Secretary pointed out, that this is such a 

great expansion of the rule. 

I conclude with the confusing rule before us and that clarity— 

it does not provide clarity. It provides confusion, and it would violate the due process of those in our State. 

Senator STABENOW. Thank you. 

Chairman ROBERTS. It would appear that was then, and then is 

now. 

Senator Tillis. 

Senator TILLIS. Thank you, Mr. Chairman. 

In the case of Secretary van der Vaart, back then, he was in the 

same department that he is now the head of now, and I am glad 

17 

that you were able to make that clarification with respect to the 

prior question asked. 

Before I get to my question, I do want to make the statement 

that we are talking about the uncertainty and the cost within the 

agriculture sector, but this rule goes far beyond that. If you take 

a look at transportation costs, infrastructure costs, this is a significant, potentially unfunded, certainly unfunded, mandate to the 

states. I think it is disruptive. 

While I was serving as the Speaker of the House just last year, 

I recall us having discussions about this. Preparing for it as a 

state, I think is problematic. 

Secretary van der Vaart, the question I had for you: The EPA 

says that the proposed rule does not really change the way they 

have been implementing the Clean Water Act. I assume that you 

disagree with that. 

Can those of the panelists who also think that this is a significant change give me some ideas of why you feel that way? 

We will start with you, Secretary. 

Mr. van der Vaart. Right, and that is puzzling to me because, 

first of all, the proposal itself is very vague. So it is not absolutely 

clear what in the world it does say other than it provides the EPA 

a lot of discretion, and perhaps through third-party suits, to further 

extend the ideas of navigable waters. 

But, nevertheless, the EPA did assemble, in spite of saying that 

it is all the status quo, these maps which do not represent the current extent regulation in North Carolina, the scope of which has 

been approved by the EPA. 

We have agreed with the Wilmington District of the Army Corps 

of Engineers when we issue 401 certifications. The Corps issues the 

404. We have an understanding; the understanding is not this 

map. 

All I can conclude is that the EPA, if we are to believe this has 

done an abysmal job of enforcing the Clean Water Act on their 

own. If they think that they are consistent in any way, shape, or 

form with this proposal—that is, the status quo is consistent—then 

they have done an abysmal job of implementing the Clean Water 

Act. 

Senator TILLIS. Any other panelists have anything to add? 

Ms. METZGER. Thank you, Mr. Tillis. 

From Kansas’s perspective, our interpretation is it is a substantial increase in the miles of waters that are now going to be under 

Federal jurisdiction. We contend we have been doing a remarkable 

job of protecting the waters in Kansas. This new Act will now divert resources from getting a job well done to waters that have 

marginal impact on the improvement of our water resources. 

Senator TILLIS. Ms. Rutledge. 

Ms. RUTLEDGE. In Arkansas, we have a number of state agencies 

that oversee water and clean water and clean air, including the Arkansas Department of Environmental Quality, the National Resources Commission, and Oil and Gas Commission, to name a few. 

Likewise, in all 75 counties in Arkansas, we have conservation 

districts. These are local controlled. They know exactly what is 

going on. They talk to the farmers. They talk to the landowners 

and the business owners in their area. They are elected from those 

18 

bodies. So they know the land, and they know the complications, 

and they are very protective of their land because it is a way of 

life. 

So what the EPA has done, as I have said, is gone beyond the 

scope of the intentions of the Clean Water Act and has created 

something so vague that it cannot be followed. 

Senator TILLIS. Mr. Baldi. 

Mr. BALDI. Again, as mentioned in testimony, there are clearly 

regional differences here. The system we have been implementing 

in the State of Washington for more than 25 years—our understanding is this would be very similar to what we are currently implementing. 

EPA has estimated that the rule may result in an additional 3 

percent of permittees. 

Senator TILLIS. Mr. Baldi, if I may because I am about to run 

out of time, I want to ask one other question. It relates to something that your State has determined was necessary to manage 

water quality in your State, and so the—what I am trying to get 

to is it appears as though rules that you have decided to apply in 

Washington that may make sense based on the geography in the 

region that you are in now are going to be applied more on a national basis. 

Is that a fair assessment, to kind of compare Washington policy 

to the rest of the nation? 

Mr. BALDI. Well, that is what we have mentioned. One of the 

pieces that needs to be worked out is the regional definitions for 

the different states. So we would encourage the Federal agencies 

to continue working with the states. That may address some of the 

concerns you have heard from the other panelists. 

Senator TILLIS. Mr. Chairman, my time is about out. I am going 

to honor the time commitment. 

I hope at some point we can have a discussion about the Chevron 

deference and how it plays into this. 

Thank you. 

Chairman ROBERTS. Next we have Senator Klobuchar. 

Senator KLOBUCHAR. Well, thank you very much, Mr. Chairman, 

and thank you for holding this hearing and to all the witnesses 

that are here. 

I especially want to acknowledge on the second panel—I have 

two other hearings going on, so I do not know if I will quite make 

it back, but—Robert McLennan. He is the president and CEO of 

Minnkota Power Coop, which serves more than 125,000 customers 

in both Northwestern Minnesota and Eastern North Dakota. Anyone that can straddle Minnesota and North Dakota must be pretty 

smart. So we welcome him here today. 

I also wanted to note I know there will be a witness from the 

counties, but I have heard a lot of concerns about this from our 

rural counties as well as our farmers, and I just wanted to note 

that. I told them I would share. 

As we know, this proposed rule, in the wake of the two Supreme 

Court cases, created significant uncertainty for states and businesses and ag. We know there are also issues with these rules. 

I have been one that has written letters and called. One of the 

things—I am still trying to go back and forth. 

19 

I know that you, Ms. Metzger and Ms. Rutledge, said it is better 

to actually scrap the final rule. 

I think you, Mr. Secretary van der Vaart, have a little different 

view. 

Could I just hear that debate? I have a specific question I want 

to ask, but I guess I would start with you, Ms. Metzger. 

Ms. METZGER. Sure. Thank you, Senator. 

Our decision for just completely rescinding the rule and starting 

from ground zero is at this point it is all in the hands of the agencies, of coming back and deciding what they have heard from us 

and putting that into writing. There is certainly a level of mistrust 

and uncertainty of what that actual proposed rule would look like 

and if it would actually reflect the changes that we have recommended. 

I think we have seen from the panel, just with the four of us, 

there is such diversity in our regions that the best approach is to 

sit with us in a room and craft it out together. 

Senator KLOBUCHAR. Okay. Secretary? 

Mr. van der Vaart. Well, I am afraid we are in favor of scrapping 

this rule. We are worried about the lack of transparency that the 

EPA followed. So we very much, as I said in my statement, would 

love to sit down with the EPA and develop this, using our scientists’ and engineers’ experience, who are the ones who actually 

are on the ground, implementing these rules day to day. 

Senator KLOBUCHAR. Okay. So you do not think exemptions or 

changing the rule would be better than just sort of going with the 

uncertainty from before? 

Mr. van der Vaart. Well, the uncertainty is amplified under the 

current rule. 

Certainly, everybody likes certainty, but the EPA simply saying 

that this is more certain does not get it with us. This is an agency 

that has used fraudulent e-mails to avoid Freedom of Information 

Act. They have been reticent to share these maps with us. 

You know, we are concerned. 

Senator KLOBUCHAR. Okay. Thank you. 

Ms. Rutledge? 

Ms. RUTLEDGE. Thanks, Senator Klobuchar. 

As the chairman noted at the beginning, changing the name is 

not enough. What the EPA has done with this rule is simply rearranged the words. 

In light of the Rapanos ruling, as I have mentioned time and 

again, it has gone far beyond legally what that ruling held. That 

ruling was a plurality; it is not even considered clear law. 

The EPA took a simple definition, which is a traditional navigable waters, interstate waters—— 

Senator KLOBUCHAR. No, I—— 

Ms. RUTLEDGE. —et cetera—— 

Senator KLOBUCHAR. Yes. 

Ms. RUTLEDGE. —and they have made it into a very long, 

lengthy, three-parts, multiple subparts, seven new definitions. 

Senator KLOBUCHAR. So you would rather go back to just where 

it was. 

Ms. RUTLEDGE. I would rather throw this rule out with the bath 

water, yes, ma’am. 

20 

Senator KLOBUCHAR. Okay. Thank you. 

I had one question about this: The EPA’s proposed rule adds new 

language explicitly exempting certain waters from jurisdiction that 

are not currently exempt. These exemptions will be enforced by the 

Army Corps as they are under current regulations. 

Now I have heard from producers in my State who feel that existing exemptions are not always enforced uniformly across the different Army Corps districts. For example, the St. Paul District of 

the Army Corps of Engineers, which includes Minnesota, requires 

a Section 404 permit for the installation of drain tile through a 

wetland, but in neighboring North Dakota in the Omaha District 

installation of drain tile is exempt from Section 404 permitting. 

Have you heard from states in different Army Corps districts 

that they are not consistently applying, and how would we fix this? 

Anyone? 

Mr. van der Vaart. I will simply vote that, yes, we have seen inconsistencies. We are fortunate to work with professionals and 

some of our own folks who have worked elsewhere in the country, 

and we have sat down with the Army Corps out of Atlanta to raise 

this issue of consistency, and we hope to meet some level in our 

district. 

Senator KLOBUCHAR. Okay. Anyone else? 

Ms. Metzger. 

Ms. METZGER. Thank you, Senator. 

I think a good example from Kansas is we actually fall under the 

jurisdiction of just one regulatory district, the Kansas City District. 

Other states sometimes have several jurisdictions that fall under 

their purview. 

We go through battles in the discrepancies of the way that the 

Federal mitigation rule is applied in Kansas versus some of our 

neighboring states and that there is a requirement in Kansas that 

we have a permanent, in perpetuity, conservation easement placed 

on all of our mitigation projects. That is not universally applied in 

other Corps districts throughout the states. 

So we do see quite a bit of diversity in the way that the existing 

rules are applied. 

Senator KLOBUCHAR. Okay. Well, thank you very much, and 

thank you for coming today and sharing these concerns which I 

have heard a lot of in our state. 

Thank you. 

Chairman ROBERTS. Senator Sasse. 

STATEMENT OF HON. BEN SASSE, U.S. SENATOR FROM THE 

STATE OF NEBRASKA 

Senator SASSE. Thank you, Mr. Chairman, both for holding this 

particular hearing and for making oversight a priority of this Committee. 

As my colleagues have noted, addressing the ‘‘Waters of the U.S.’’ 

Rule as it relates to producers across the country and rural life 

across our country is not only entirely appropriate, but it is an urgent necessity. You hear about it in all 93 of Nebraska’s counties 

when you travel our State. 

I am scheduled to be presiding on the Senate floor later this 

morning. So, before turning to my questions, with the chairman’s 

21 

indulgence, I want to introduce Jeff Metz of Morrill County, Nebraska, who will be testifying on the second panel. 

His son is with him today as well and told me yesterday that he 

is happy to be missing three days of school, 

transferring his education to Washington, DC over the course of 

this week. So we are happy to oblige. 

Mr. Metz is the owner and operator of Metz Land and Cattle 

Company of Angora, Nebraska, where runs a cow-calf operation 

and farms winter wheat and other crops. Since 2010, Mr. Metz has 

also served as a county commissioner in Morrill County. So his perspective is informed not just by his role as a producer but also by 

his role in local government. 

Mr. Metz is here because, like so many Nebraskans, including 

myself, he cares deeply about the land and water that helps form 

the backbone of the agriculture of our State but also is the place 

where he is raising his kids. 

I suspect that he is here because he expects that at least one, 

and maybe both, of his sons will one day be farming the ground 

that he currently farms. 

I would also mention that his great grandfather first homesteaded the land that he lives on today. So he is the fifth generation of producers living on that land. 

There is nobody in Washington, DC who cares more about the 

environment in Morrill County than he does. Mr. Metz’s commitment to clean water, as his testimony today makes clear, should be 

understood in the light of the legacy of five generations living and 

working that land and one that he expects to pass on to the next 

generation. 

So thank you for being here today. We look forward to hearing 

from you on the second panel. 

As far as—thank you, Mr. Chairman. 

As far as questions for this panel, I would like to begin with Secretary van der Vaart. Your written statements talk a good bit 

about Chevron deference, and I wonder if you could unpack that a 

little bit and also to speak about whether or not you think that regulatory agencies are increasingly incentivized to find ambiguities in 

statutes so as to exploit Chevron later. 

Mr. van der Vaart. Thank you. 

That is exactly right. I testified here last week on Section 111(d), 

curiously called the Clean Power Plan. 

The issue here is that Congress bestowed upon the EPA the authority that—the trust to implement the Clean Water Act, and over 

time the EPA has successively done a poorer and poorer job of that. 

If you take a look at appellate level and above cases, the EPA 

loses more than they win, and that is in the cases that are socalled non-ambiguous. In the ambiguous side, they are meant to 

take deference. 

But that is a public trust that was bestowed on them, both by 

this Congress as well as by courts in the Chevron case. 

My question is, increasingly, how often does the EPA have to 

miss, how often do they have to misinterpret laws before Congress 

revokes this public trust? 

That is a very serious question because, as you said, it has now 

been used in a lot of cases to develop sue-and-settle strategies 

22 

where we do not really even go through rulemaking. EPA finds 

some benevolent Federal judge to define rules for us through a 

cherry-picked process. 

So it is very concerning, and I hope that we—that Congress takes 

a look at it. 

Senator SASSE. Thank you. 

General Rutledge, I wonder if you have views on that question 

as well. 

Ms. RUTLEDGE. Thank you, Senator Sasse, Mr. Chairman. 

Yes, I believe that the EPA has continually gone beyond its 

scope. 

Recently, in a Supreme Court case of Perez v. Mortgage Bankers, 

the holding in that case simply stated that administrative agencies 

do not have to submit interpretive rules to public notice and comment. This should frighten everyone who hears that because what 

will prevent the EPA or any agency from claiming to offer further 

clarity on issues and pushing through an interpretive rule without 

public comment. 

This rule alone received one million public comments. 

Senator SASSE. Mr. Chairman, I recognize that I am about at 

time. 

So I will simply say that when you travel—I am new here. When 

you travel across our State, people actually believe in a Madisonian 

system of checks and balances. They believe in three separate, but 

equal, branches that check and balance one another. 

The increasing executive unilateralism we see out of this administration did not begin simply because of this administration but 

because the Congress has regularly passed laws that need to be 

passed before people can find out what is in them. 

We need a government that is more self-consciously self-limiting 

because it believes in the Federalism that many of you have advocated more. Most governance should be delivered at the state and 

local level where possible. 

Thank you, sir. 

Chairman ROBERTS. We thank the Senator. 

Senator Heitkamp. 

Senator HEITKAMP. Thank you, Mr. Chairman. 

Obviously, this is a rule that has generated a lot of discussion 

in every state, especially states like ours, in Kansas and North Dakota, where over 90 percent of our land mass is engaged in farming. 

Unlike Kansas, we have had an unusual wet cycle. I recently had 

another member touring the border, and we were in a helicopter. 

I pointed down to Northwestern North Dakota, where it has never 

been wet like this before—and I said, do you think EPA and the 

Corps have jurisdiction over that water? 

That is the question. Do they have jurisdiction, or don’t they 

have jurisdiction? 

I think the most important thing we can do is provide certainty. 

I understand what you are all saying about this or that. But I 

would point out, General Rutledge, the IRS issues letters of opinions, interpretative opinions, every day. You have to be careful 

when you are saying all interpretive rules would be subject to notice and rulemaking because there is a lot of that going on. 

23 

We are engaged—Senator Lankford and I are engaged in a process where we are actually trying to sort out how this process 

should go forward. 

But the point that I want to make, I think, is that what is the 

‘‘Waters of the United States?’’ 

[No response.] 

Anyone want to give me a one-minute definition of what the 

‘‘Waters of the United States’’ are? 

[No response.] 

Senator HEITKAMP. It is pretty hard. It is pretty complicated. We 

all know it is complicated, from jurisdictions to when we used to 

have the EPA cow that we drank out of the pothole and that created interstate commerce jurisdiction. 

We know it is not navigable, and I think the court told us in 

Rapanos it is not navigable in the traditional sense. So that has 

created a whole lot of uncertainty that we need to resolve. 

But I think that we need to appreciate that all of us are in this 

together. The worst thing that we can do is create, I think, a subindustry here of people coming and spending and spending, and we 

spend millions of dollars on controversy when we should be sitting 

down, answering that question, because the court did not do a very 

good job. 

I would suggest, Secretary, that when you talk about 111(d)—the 

EPA was pretty certain they did not have jurisdiction over CO2. 

But what did the Supreme Court tell them? They had jurisdiction 

over CO2 and had to at least contemplate regulation. 

So regulation through litigation is not our path forward. It is expensive, and it creates uncertainty. So we need to figure that piece 

out. 

But I would suggest to you, Mr. Baldi, that if you were proposing 

a rule and it generated enough interest that we have to hold the 

hearing in this room and, literally, unanimous opposition from 

every farm group in North Dakota and every farm group across the 

country, wouldn’t you rethink that rule? 

Wouldn’t you step back and say, ‘‘well, obviously, one of the two 

things, they are not understanding what I am trying to do, or 

maybe I am overreaching and we need to have another conversation?’’ Wouldn’t you do that? 

Mr. BALDI. Rules are complicated business, and when you have 

interests on all sides you sometimes have strong opposition from 

one interest or another. That does not necessarily cause an agency 

to go back to the beginning. 

You started by asking the question, what are ‘‘Waters of the 

U.S.’’? 

I, actually, on the plane flight here, was doing the same thing, 

looking down at the waters as I was coming across the nation. Very 

difficult to tell from a picture or from a plane what are, and what 

are not, ‘‘Waters of the U.S.’’ 

What we believe the Corps and EPA have done here is clearly 

identified some waters that are clearly not ‘‘Waters of the U.S.’’ 

Senator HEITKAMP. But I would tell you that no one thinks what 

they have done here has clarified what, in fact, is ‘‘Waters of the 

United States.’’ 

24 

Does it mean a connection through subsurface connections? What 

exactly are we going to have? 

We need to remember we do not have an EPA rule that we are 

talking about. We have a proposed rule and a promise that we are 

going to fix it. 

I think there is a whole lot of distrust on whether we are, in fact, 

going to see a rule that clarifies and fixes some of the concerns, and 

I think that is where we are at right now. 

I guess my point is wouldn’t it be better to basically propose a 

new rule—and it can be the rule that they are working on now— 

and open it back up for comments so that people can have additional dialogue and additional consultation with states? 

Here are three states saying they want that additional discussion. Wouldn’t that be a better path forward? 

Mr. BALDI. Well, from Washington State’s perspective, we would 

like them to do additional work on the rule before it is finalized. 

So we agree that there are some improvements that we can see in 

the rule. However, we have seen the Federal agencies in other rulemaking actually improve and work with the states and, again, the 

last eight months, have been very different from when they proposed the rule. So we have believed that they have been much 

more interactive, EPA in particular. 

Senator HEITKAMP. But having the ability to see where their 

thinking is now and comment on it and have further dialogue before it is finalized, can’t you see some value in that? 

Mr. BALDI. We anticipate more interaction, and again, that is 

why we have called for these regional discussions, regional definitions, with the Federal agencies. They have been responsive in 

other rulemaking. We believe they will be here as well. 

Senator HEITKAMP. I guess my point is that we have had a lot 

of controversy around this rule. It seems to me that we ought to 

have more conversation and more certainty. 

Simply saying ‘‘trust us’’ probably is not going to sit very well 

with a lot of the witnesses and a lot of the discussion on this panel. 

Thank you, Mr. Chairman. 

Chairman ROBERTS. I thank the Senator. 

Mr. Baldi, you ought to take those EPA folks you are working 

with, and the Army Corps of Engineers, and send them down to 

Kansas and over to North Carolina and to Arkansas That would be 

very helpful. 

Mr. BALDI. I will see what I can do. 

Chairman ROBERTS. When you were flying over, trying to determine what was wet, that is what the EPA determines, and they 

have actually flown planes over Kansas to determine what is wet. 

So we will go from there. 

I apologize to Senator Donnelly, who is recognized at this point. 

Senator DONNELLY. Thank you, Mr. Chairman. No reason to 

apologize. 

I will note very quickly that my alma mater will be playing 

Wichita State in a few days. 

[Laughter.] 

Senator DONNELLY. I hope that the fact that you are the chairman and I am just one of the members is not going to influence 

the outcome. 

25 

To everybody here, I think we all know well the need for EPA 

to rework the rule, to provide greater clarity for our farmers, 

ranchers, and state regulatory agencies. We all want a rule that 

protects our waters from pollution, but we also need a rule that 

provides certainty and confidence for all stakeholders. Even EPA 

admits they need to improve the rule to reset balance. 

So, to all of you, would you feel more confident if EPA had to 

take all the information received from the public on this proposed 

rule, then go through all the procedural steps they skipped the first 

time, like consulting with states, consulting with small businesses, 

and finally, re-propose a WOTUS rule within some guidelines that 

say EPA cannot define things like erosional features or isolated 

ponds as ‘‘Waters of the U.S.’’? 

Ms. Rutledge, we will start with you. 

Ms. RUTLEDGE. Yes. Thank you, Senator Donnelly, for the question. 

Yes, in Arkansas, we would welcome the EPA to come visit with 

our farmers, our landowners, our business owners, and to read the 

comments submitted by those in our State and those in the other 

states, of those one million comments, before proposing another 

rule. 

Senator DONNELLY. Mr. Secretary? 

Mr. VAN DER VAART. Yes, exceedingly novel perhaps, but yes, we 

would very much encourage that. 

Senator DONNELLY. Ms. Metzger? 

Ms. METZGER. Thank you. 

Yes, if EPA and the Army Corps of Engineers truly took Executive Order 13132 seriously and consulted with the states in revising this rule and did not put our feedback in the same—relegate 

it to the same feedback as all those other million comments, then 

we would appreciate that, if it was reflected in the final rule. 

Go Shockers. 

Senator DONNELLY. We will strike the last part from the record. 

[Laughter.] 

Mr. Baldi? 

Mr. BALDI. Again, as the previous exchange demonstrated, we 

have been working with EPA. 

We do not recommend that they go back and start again. 

We do recommend strongly that they form these regional committees to work out the final details of the rule. 

Senator DONNELLY. I think what is important to understand— 

and I have mentioned this before—is that when I look at Indiana’s 

farmers and, I know, the ag community across the country, nobody 

wants to have cleaner water, nobody wants to have better land conditions, than the family that actually lives on the farm, right there. 

Our waters in our State are the cleanest they have been in my 

lifetime, and it is everybody working very, very hard to make 

progress. They are doing it because they care about it and they 

want to and they know it is their children’s future. 

I think it is really important for us to have some faith and confidence in the wisdom of the people and the ag community throughout this country and put a lot more faith in them than we have 

been. 

Thank you, Mr. Chairman. 

26 

Chairman ROBERTS. Senator Cochran. 

Senator COCHRAN. Mr. Chairman, thank you. 

It occurs to us that there are inevitably going to be costs imposed 

on landowners and others, state governments, on and on. EPA has 

estimated that the state governments alone would experience about 

a million dollars annually in additional costs to administer and 

process permits in addition to some other costs that are associated 

with the permitting process. 

What do you have in your testimony that would indicate to the 

Committee what the costs are expected to be? Have you done any 

analysis of that? 

Ms. METZGER. From Kansas’s perspective, we have estimated that we spend $300,000 annually from state general funds in the 

implementation of our state regulations for ‘‘Waters of the U.S.,’’ 

defining use attainability analysis and monitoring. We would expect that would certainly increase if this rule were adopted—funds 

we think are better spent by actually implementing best management practices on the ground that improve water quality. 

Senator COCHRAN. Other witnesses who have comments to make 

on that? 

Mr. VAN DER VAART. I would like to note—— 

Senator COCHRAN. —comments to make on that? 

Mr. VAN DER VAART. Yes, sir. I would also like to note that the 

exemptions are—that we have heard today do not apply to water 

quality standards or NPDES permitting or, for that matter, possible TMDLs. So I do not want anyone to think that this rule and 

this interpretation will not have impacts on existing farms right 

now. 

Senator COCHRAN. What is TMDL, as a matter of curiosity? 

Mr. VAN DER VAART. It is, essentially, when surface waters have 

exceeded water quality standards despite compliance with point 

source discharge limits and you need an additional plan to bring 

the surface waterbody into compliance with water quality standards. Under that program, we can regulate to any wetlands, including those newly designated and to so-called exempted farms. 

They are only exempted from 404 permitting. Sorry. 

Senator COCHRAN. Oh. 

Ms. RUTLEDGE. Senator Cochran, I do not have any specific data 

on how much it would cost the State to issue the permits. 

But I do have information that it is very costly for farmers or 

landowners to obtain these permits, but the cost of not obtaining 

them is even more so. A landowner could be penalized up to 

$37,500 per violation per day in violation of the Clean Water Act. 

That is a heck of a lot of money, sir. 

Senator COCHRAN. It is in Mississippi; that is for sure. 

Mr. BALDI. Senator, likewise, we have not performed an analysis. 

As I mentioned, this is very similar to the system we currently operate. 

I will say that EPA has estimated there will be an additional 3 

percent permittees nationwide. So there will be cost, but in our experience we do not believe it will be significant. 

Senator COCHRAN. Yes. Thank you, Mr. Chairman. 

Chairman ROBERTS. That will conclude the first portion of our 

hearing this morning. 

27 

Thanks to each of our witnesses very much for taking time out 

of your busy schedules to come to Washington and share your professional perspectives about the impact of the EPA’s proposed rule 

on the ‘‘Waters of the United States.’’ 

To my fellow members, we would ask that any additional questions you may have for the record be submitted to the Committee 

clerk 5 business days from today or by 5:00 p.m. next Tuesday, 

March the 31st. 

We now invite the second panel of witnesses to come to the table. 

[Pause.] 

Chairman ROBERTS. I would like to welcome our second panel of 

witnesses before the Committee. 

We have a vote at 12:00, and so, like King Tut, we are pressed 

for time. Sorry about that. 

Ms. Lynn Padgett joins us today on behalf of the National Association of Counties. 

Senator BENNET. Mr. Chairman. 

Chairman ROBERTS. Oh, I beg your pardon, Senator Bennet. 

Senator BENNET. Thank you. 

Chairman ROBERTS. Senator Bennet would like to introduce this 

witness. 

Senator BENNET. Well, it would be much classier to be introduced by the chairman than by me, but I would like to have 

the—— 

Chairman ROBERTS. You are welcome, sir. 

STATEMENT OF HON. MICHAEL BENNET, U.S. SENATOR FROM 

THE STATE OF COLORADO 

Senator BENNET. Thank you, Mr. Chairman. 

Actually, I have the chance this morning to introduce not one, 

but two, witnesses from Colorado. Thank you for allowing them to 

testify. 

First, I would like to introduce Lynn Padgett, second term county 

commissioner from beautiful Ouray County situated in Colorado’s 

San Juan Mountains. 

Lynn has been a great partner to me over a number of years, 

whether it has been working together to allow ‘‘Good Samaritans’’ 

to clean up abandoned hard rock mines or strategizing on the best 

way to ensure our rural communities get their full payment in lieu 

of taxes—PILT. Lynn worked with this Committee and the full 

Senate to help secure a one-year extension of PILT payments during the conference committee for the 2014 Farm Bill. 

Lynn, welcome, and thanks for being here today. 

I would like to introduce on the panel the other witness from 

Colorado, Kent Peppler, who is at the other end. We have got bookends today. 

Kent is a fourth-generation farmer from Mead, Colorado, where 

he grows barley, alfalfa, corn, and wheat on his 500-acre farm. In 

the past, Kent has also grown sugar beets and sunflowers and 

tended to hogs, sheep, and cattle. 

Kent knows the importance of clean water to his farm, and that 

is why he is here today, to support the Clean Water Rule. 

28 

Kent is the president of the Rocky Mountain Farmers Union, a 

graduate of Colorado State University, father of two kids, and has 

been married to his wife, Colleen, who is here today, for 3 years. 

Welcome, Kent. 

Mr. Chairman, thank you for the privilege of introducing these 

two witnesses. 

Chairman ROBERTS. I thank the Senator very much. 

Second, we have Mr. Furman Brodie, who joins us today, traveling from South Carolina on behalf of the Charles Ingram Lumber 

Company. 

In his professional capacity, Mr. Brodie currently serves as the 

Vice Chairman of the Southeastern Lumber Manufacturers Association, which represents the forest product industry and sawmills 

throughout that region of the country. Mr. Brodie also served as 

Chairman of the South Carolina Forestry Association and on the 

board of the Treated Wood Council. He is the present Chairman of 

the Southern Pine Inspection Bureau and the Vice Chairman of the 

American Lumber Standards Committee. 

Thank you for being here today. I look forward to your testimony. 

Jason Kinsley, pardon me, Kinley, joins us today from Emmett, 

Idaho, where he is the district director for the Gem County Mosquito Abatement District. Mr. Kinley also serves on the American 

Mosquito Control Association Board of Directors for the North Pacific Region. In this role, Mr. Kinley also serves as the Executive 

Director of the Northwest Mosquito and Vector Control Association 

since 2009. 

Welcome. I certainly look forward to your testimony, sir. 

Mr. Robert ‘‘Mac’’ McLennan of Minnkota. Senator Hoeven was 

scheduled to introduce this witness. In case, he is not here, and so 

I will proceed. 

Mr. Robert ‘‘Mac’’ McLennan is the president and CEO of 

Minnkota Power Cooperative, Inc., an electric generation and 

transmission co-op based in Grand Forks, North Dakota, that 

serves areas in North Dakota and Minnesota. 

Early in his career, Mr. McLennan has also worked for the National Rural Electric Cooperative Association as the director of Environmental Affairs. Pardon me. 

Welcome, and I look forward to your testimony. 

Mr. Jeff Metz, Senator Sasse, I think you have already introduced this witness. Would you like to add anything at this point? 

Senator SASSE. No, just that we are grateful that Jeff is here and 

that his son has accompanied him, and he is not only a farmer and 

producer in the Western Panhandle of Nebraska, but he is also the 

president of the Farm Bureau of Morrill County. 

So, glad you are here, Jeff. 

Chairman ROBERTS. What is Mr. Metz’s son’s name? 

Senator SASSE. I think we have Logan and Dylan. Just Dylan 

here. 

Chairman ROBERTS. Would he stand? 

Young man, there is going to be a test on this tomorrow. So, take 

good notes. 

[Laughter.] 

29 

Senator SASSE. This is when you are supposed to claim you are 

a Shockers fan. Just say, and we will talk football with the chairman later. 

Chairman ROBERTS. All right. Mr. Kent Peppler of the Rocky 

Mountain Farmers Union. Senator Bennet, I think, has already 

done that job. 

I think that pretty much concludes introductions. If I have left 

anybody out, I apologize. 

Let’s move right away to Commissioner Padgett. 

STATEMENT OF THE HONORABLE LYNN M. PADGETT, 

COMMISSIONER, OURAY COUNTY, MONTROSE, COLORADO 

Ms. PADGETT. Thank you, Chairman Roberts, Ranking Member 

Stabenow, and members of the Committee for the opportunity to 

testify on the ‘‘Waters of the U.S.’’ Proposed Rule. 

My name is Lynn Padgett. I am an elected county commissioner 

from Ouray County, Colorado, and today I am representing the National Association of Counties. 

Ouray County is considered rural, with a population of approximately 4,500 residents. Known as both the ‘‘Switzerland of America’’ and the ‘‘Gateway to the San Juan,’’ my county is home to scenic ranch lands, historic mining districts, wild lands, trails and 

public and private hot springs. Approximately 45 percent of our 

county is comprised of Federal public lands and 23 percent is agricultural. 

As a county commissioner and small business owner, I interact 

with constituents and businesses on a daily basis. Throughout Colorado, I have heard concerns about how the state and local governments, businesses and residents could be affected by the proposed 

rule. These concerns have been echoed by counties, large and 

small, across the country. 

After consultation with county experts, including county engineers, public works directors, stormwater managers, and legal 

staff, NACO called for the agencies to withdraw the proposed rule 

until after further analysis and consultation with local officials is 

completed. This decision was not taken lightly. 

Today, I will discuss the on-the-ground impacts on rural counties 

nationwide and why counties called for the proposed rule to be 

withdrawn. 

First, this issue is so important because counties build, own and 

maintain a significant portion of public safety infrastructure, and 

the proposed rule would have direct and extensive implications. 

Local governments own almost 80 percent of all public road miles 

and also own, and maintain, roadside ditches, bridges, flood control 

channels, stormwater systems and culverts. 

Many of these road systems are in very rural areas. Seventy percent of counties are considered rural with populations of less than 

50,000. 

Additional Federal regulation would be challenging, especially 

since rural counties own most of the road miles and ditches. My 

county is responsible for over 300 public road miles and the majority of bridges which help to support our local economy and tourism 

industry. 

30 

Because we own so much infrastructure and are responsible for 

public safety, defining which waters and conveyances fall under 

Federal jurisdiction has a direct impact on counties. 

Second, the agencies developing the proposed rule did not sufficiently consult with local governments. Counties are not just stakeholders in this discussion. We are partners in our nation’s intergovernmental system. 

By law, Federal agencies are required to consult with their state 

and local partners before a rule is published and throughout its development. However, this process was not completed by the agencies. 

Third, due to this inadequate consultation, many terms in the 

proposed rule are vague and create uncertainty at the local level. 

For example, the proposed rule introduces new definitions of ‘‘tributaries,’’ ‘‘significant nexus,’’ ‘‘adjacency,’’ ‘‘riparian areas’’ and 

‘‘floodplains.’’ Depending on how these terms are interpreted, additional public infrastructure could fall under Federal jurisdiction. 

The proposed rule, as currently written, only adds to the uncertainty over how it would be implemented consistently across all regions. 

Our final reason for calling for the withdrawal is that the current 

permitting process tied to the ‘‘Waters of the U.S.’’ already presents 

significant challenges for counties and the proposed rule only complicates matters. The jurisdictional determination process is already complex, time-consuming and often triggers other Federal 

laws. We have many examples from across the country, from the 

coastal areas to the arid West, of instances where existing rules 

under the Federal permitting process are being implemented inconsistently. 

In conclusion, while many have attempted to paint this as a political issue, in the eyes of county governments, it is a matter of 

practicality and partnership. We look forward to working with you 

and with the agencies to craft and clear and workable definition of 

the ‘‘Waters of the U.S.’’ that achieves our shared goal, which is to 

protect water quality without inhibiting the public safety and economic vitality of our communities. 

Thank you again for this opportunity. 

[The prepared statement of Ms. Padgett can be found on page 76 

in the appendix.] 

Chairman ROBERTS. Mr. Brodie. 

STATEMENT OF FURMAN BRODIE, VICE PRESIDENT, CHARLES 

INGRAM LUMBER COMPANY 

Mr. BRODIE. Thank you, Chairman Roberts. I would like to thank 

you and the Committee for holding this hearing on the impacts of 

the ‘‘Waters of the U.S.’’ Proposed Rule. 

I would also like to take this opportunity to thank the Committee 

for all your hard work on the 2014 Farm Bill, including your work 

on the Forest Roads Provision. 

My name is Furman Brodie, Vice President of Charles Ingram 

Lumber Company in Effingham, South Carolina. I also currently 

serve as Vice Chairman of the Southeastern Lumber Manufacturers Association, or SLMA. 

31 

Charles Ingram Lumber Company is a family-owned company 

that manufactures Southern Yellow Pine lumber. We also own 

timberland where we grow trees for pulpwood and saw timber. 

SLMA is a trade association that represents sawmills, lumber 

treaters, and their suppliers in 16 states throughout the Southeast. 

Charles Ingram Lumber Company originated in 1931 as the 

Bynum-Ingram Lumber Company, and the third generation of the 

Ingram Family now helps manage the operation of the mill. Our 

mill produces approximately 120 million board feet of Southern 

Yellow Pine annually, and we support 150 good paying jobs in our 

community. 

Our industry has reviewed this proposal, and we have identified 

a variety of concerns. Many of these concerns are similar to those 

expressed time and again by others in agriculture, forestry, and 

throughout rural America, namely, that the proposed rule is vague, 

excessively expands jurisdictional waters, and opens up stakeholders to endless and costly litigation. 

That said, as timber owners and sawmill operators, we do have 

some unique concerns that I would like to briefly outline. 

In South Carolina and other states, there are already best management practices, or BMPs, in place to ensure that proper precautions are taken to control water runoff during forest management activities. These BMPs are successful in large part because 

they are tailored for specific regions and terrains. 

We fear the complexity of this rule will create untenable administrative burdens on the state agencies. Additionally, the complexity of the rule could frustrate landowners’ inclination to reinvest in forest management and even push some landowners to consider other land use options. Such unintended consequences of the 

proposed rule could be devastating. 

The ‘‘Waters of the U.S.’’ Rule would also impact our sawmill operations. Our operations typically involve a number of operations 

that generate a water discharge. Some of these activities are already regulated by the Clean Water Act, but some are not. 

Our biggest fear is that, under this proposed rule, creative litigators could find a way to argue that virtually every aspect of our operation, from forest to mill, would be regulated by EPA. 

Administrator McCarthy has made several public statements to 

indicate that there will be significant changes. We would like to 

point out that her comments are not legally binding and provide 

little reassurance to those of us whose business are at risk. 

Fixing this rule in the way necessary to be supportive of rural 

economic engines such as ours will require major changes. If significant changes are made to the rule, then additional opportunity 

for stakeholder comment is necessary. 

We hope members on both sides of the aisle will appreciate that 

we simply cannot be asked to blindly trust the EPA to get it right. 

We respectfully request an opportunity to review the changes to 

the rule and comment on these changes before we are asked to 

comply with this new regulation. 

In conclusion, I would like to thank the Committee for taking the 

time to hold this hearing today and hear our perspective, and I 

look forward to answering any questions you may have. 

32 

[The prepared statement of Mr. Brodie can be found on page 55 

in the appendix.] 

Chairman ROBERTS. Thank you, Mr. Brodie. 

Mr. Kinley. 

STATEMENT OF JASON KINLEY, DIRECTOR, GEM COUNTY 

MOSQUITO ABATEMENT DISTRICT 

Mr. KINLEY. Good morning, Mr. Chairman and members of the 

Committee. 

My name is Jason Kinley, and I am the director of the Gem 

County Mosquito Abatement District, a special purpose district established in Emmett, Idaho, to control mosquitos. I welcome the opportunity to provide a public health perspective to the deliberations 

of this Committee concerning impacts the ‘‘Waters of the United 

States’’ Proposed Rule will have. 

Over one million people die worldwide each year from mosquitotransmitted diseases. The costs associated with the treatment of 

mosquito-borne illness run into the millions of dollars each year in 

the United States. 

Alarmingly, the future of public health protection through mosquito abatement itself is in jeopardy due to the increasing costs associated with pesticide registration, the reduction of epidemiology 

and laboratory capacity grants, and burdensome requirements of 

the Clean Water Act’s National Pollutant Discharge Elimination 

System Permits. These costs and the reduction of grant funding divert already scarce taxpayer dollars to regulatory compliance instead of using those funds to meet mandated public health missions and objectives. 

Indeed, the end result compromises both the quality and extent 

of protection mosquito control offers to the public and may result 

in the loss of protection for those constituencies who cannot afford 

to pay these increased costs. 

If the proposed rule is finalized consistent with its current form, 

the number of waters protected by the Clean Water Act will increase. EPA has stated that this increase in jurisdiction will aid in 

protecting the nation’s public health and aquatic resources. 

I certainly support the protection of our nation’s waterways and 

wetlands. However, I am also concerned that the expansion of 

‘‘Waters of the United States’’ under the proposed rule will increase 

regulatory burdens to conduct necessary, integrated mosquito management initiatives and, thus, inhibit such work. 

Mosquito control products are rigorously reviewed under FIFRA. 

If approved, those products will be required to carry labels that include application instructions and environmental considerations. 

The impact of pesticide application upon water bodies and aquatic 

species is thoroughly considered before a product is ever allowed on 

the market. 

In contrast to the Clean Water Act, violations under FIFRA are 

based on sound science, EPA-approved label language, and specific 

enforcement benchmarks. Violations under FIFRA are not based on 

personal perceptions or personal opinion, and only government 

agencies that have been empowered to process violations do so. 

33 

Currently, staff of the Gem County Mosquito Abatement District 

spend approximately three weeks per year tabulating and reporting 

activities for the season on ‘‘Waters of the United States.’’ 

The District has had to invest in the geographic information system for accurate reporting of applications to ‘‘Waters of the United 

States,’’ the purchase of the necessary hardware and software required, an investment of 20 percent of our annual operating budget. The District was forced to make this hardware and software investment to comply with NPDES reporting requirements solely as 

it was not necessary for FIFRA compliance. 

The costs associated with reporting compliance diverts funding 

away from the mission of protecting public health in Gem County. 

These costs would only increase with the expansion of defined regulated waters as there would be a larger number of water bodies 

where compliance is required. 

Again, all of these regulatory requirements would either require 

increased taxation of our citizens or a diversion of resources away 

from our public health mission. Either way, neither the environment nor the public would be well-served. 

The current climate of mosquito control in the United States is 

dynamic. Recently, there has been an influx of invasive species of 

mosquitos, such as Aedes albopictus and Aedes japonicus, in many 

parts of the country and new diseases, like chikungunya virus, that 

are not endemic to North America. The costs associated with addressing influxes and invasive species and new disease are exacerbated by redundant regulation and reporting requirements. 

The increase in jurisdictional scope of the proposed rule compounds these costs, making a great many mosquito management 

programs potentially unsustainable. This will ultimately result in 

adverse impacts on communities, recreation, and both animal and 

human health. 

Thank you for the opportunity. 

[The prepared statement of Mr. Kinley can be found on page 59 

in the appendix.] 

Chairman ROBERTS. Mr. McLennan. 

STATEMENT OF ROBERT ‘‘MAC’’ N. MCLENNAN, PRESIDENT 

AND CEO, MINNKOTA POWER COOPERATIVE, INC. 

Mr. MCLENNAN. Thank you, Mr. Chairman, Ranking Member 

Stabenow, and members of the Committee. 

I am happy to reflect the views today of America’s rural electric 

co-ops and particularly those within our region in Eastern North 

Dakota and Northwest Minnesota, sometimes referred to as the 

‘‘Land of 10,000 Lakes’’ and certainly the ‘‘Prairie Pothole Region’’ 

of this country. 

So as EPA begins to talk about redefining or reclarifying what 

‘‘Waters of the U.S.’’ means, it has a significant impact on the individuals in our area. We have a slightly different view than those 

of the farmers and ranchers who most of our members serve but, 

nonetheless, the same concerns as it relates to clarity associated 

with this proposal. 

We have about a 35,000-square-mile territory in that region that 

runs along the Red River Valley of North Dakota, which I will talk 

about specifically in just a moment. 

34 

We have about 3,000 miles of transmission line, and our members have tens of thousands of miles of distribution lines in those 

areas. 

So, as you talk about redefining the areas that we have to operate in, we take very close, and pay very close, attention to that. 

Our view is that the current rule, as it is proposed, is not really 

a clarification. It is a substantial expansion that results in, more 

likely than not, more costs, delays, and confusion but not likely to 

improve the environment—its stated goal. 

Today, utilities operate under a nationwide permit, No. 12, that 

allows us certain freedoms as it relates to ‘‘Waters of the U.S.’’ and 

our ability to do activities. We have the ability as long as in that 

project, or in a project, we do not disturb more than a half-acre of 

‘‘Waters of the U.S.’’—manageable most of the time in our region 

but still a challenge at times based on the nature of our topography. 

So when, under the proposed rule, ETA—or, EPA contemplates 

expanding that definition to include tributaries that directly or indirectly contribute flow to a navigable body of water, yet to be determined what that means—obviously, in the heart of this discussion—without defining to taking into consideration the frequency, 

duration, amount of flow, or its proximity to navigable waters, further complicates the issue for us and creates a challenging process. 

Further in this rule, when you add the challenges that wetlands 

and manmade features are being considered as it relates to part of 

this, it gets even more complicated. 

Finally, the last part for our part of the country and region of 

the world is when the proposed rule specifically refers to the ‘‘Prairie Pothole Region,’’ or those areas we live, for a potential jurisdiction. Getting that right is imperative and very troubling to us as 

it relates to how it might work. 

I mentioned the Red River Valley in North Dakota and Minnesota splits. That is the border between the states, and it is dead 

in the middle of our service territory. Grand Forks, where our office 

is located, is right on it. 

For those of you who are not familiar with the Red River Valley, 

we live in an extremely flat region subject to significant seasonal 

flooding. 

I live, personally, right on the river. At times, where I live, the 

river is two to three hundred yards wide. During the spring, it is 

several miles wide. 

So, when the water recedes and the spring fades, the water just 

does not flow back down to the river. Every low spot, every small 

pond, every ditch, every field, every wet area ends up staying there 

until such time as either the sun heats it up and it evaporates or 

it finds another way. 

Clearly, it is not a water that is there on a permanent basis nor 

is it navigable nor does it—and it occurs. So this year we will have 

a very easy spring, and it is unlikely that those waters will exist. 

So, as you look at that in our valley, as those recede or those— 

the question I think Senator Heitkamp asked earlier is are those 

‘‘Waters of the U.S.’’ The concern for us today is we do not know. 

So it becomes a potential nightmare to manage that as we move 

forward. 

35 

Those are a lot of what-ifs. 

On a practical front, our experience has been, however, that as 

the agencies enforce those what-ifs, they enforce them with an 

error on the side of caution, and that caution is out of fear or criticism that they are going to be challenged over that. 

On a practical front, that leads to numerous challenges and 

months of delay over the projects. 

I will just close by saying the preamble to the rule says we want 

to enhance protection for the nation’s public health and aquatic resources by increasing clarity. 

I would argue it does not increase clarity at all and, in fact, 

makes it much more difficult for those people in our region to figure out what it means. 

So, thank you, Mr. Chairman. 

[The prepared statement of Mr. McLennan can be found on page 

65 in the appendix.] 

Chairman ROBERTS. We thank you. 

Mr. Metz. 

STATEMENT OF JEFF METZ, OWNER AND OPERATOR, METZ 

LAND AND CATTLE COMPANY 

Mr. METZ. Good morning. My name is Jeff Metz. My family and 

I farm and ranch in the Western Nebraska Panhandle, where we 

raise cattle, wheat, and other dryland crops. 

Thank you for allowing me the opportunity to provide a farmerrancher and a local government perspective on this proposed rule. 

I want to thank the Chairman and Ranking Member for holding 

the hearing. 

The proposed ‘‘Waters of the U.S.’’ rule represents a dramatic expansion of the Federal Government’s reach into the everyday activities of farmers, ranchers, homebuilders, local county governments, and virtually everyone who turns earth with a shovel. 

Throughout my land, I have seasonal valleys, draws, and canyons, as well as ponds and other natural depressions, that at times 

fill or flow with water. In fact, there are many examples in Nebraska of waterways that have what the rule defines as jurisdictional—a bed and a bank and a high-water mark. 

Unless there is a significant amount of precipitation, many of 

those examples are waters that flow only a short distance before 

evaporating or seeping into the ground. Yet, it appears that I will 

now need a Federal permit to farm those areas. 

A Federal permit will cost me time and money, and even more 

problematic, the Federal Government is under no obligation to give 

me that permit, even if I need one to farm. 

Nebraska is also home to the Sand Hills, the center of Nebraska’s critical cow-calf industry. This area is also home to meadows 

that sit on top of a very shallow water table. These wet meadows 

will fill with water during the spring but will dry out during the 

summer, allowing ranchers to mow that grass for hay. As the mowing of these areas is extremely time-sensitive, a delay of a few days 

or even weeks to obtain a Federal permit could mean the loss of 

an entire year’s worth of cattle feed. 

As I said earlier, this rule’s impact will reach much further than 

just agriculture. As one of three county commissioners in Morrill 

36 

County, Nebraska, we are charged with maintaining 900 miles of 

county roads, all of which have ditches that run along each side. 

Maintaining these roads is expensive and time-consuming, and it 

is one of the most important tasks to a county government. We 

simply cannot afford a Federal permit each time we maintain these 

roads because of the ditches that run along each side. 

As I read the proposed rule, as well as portions of the Clean 

Water Act, it has become very clear to me that the only ones who 

seem to be confused as to where the regulatory limits lie is the 

EPA and the Corps, not farmers and ranchers. 

What we need is something far more focused on common sense 

rather than a regulation which grants the Federal Government 

blanket authority over virtually all bodies of water. 

Thank you for the time today, and I will be happy to answer any 

questions. 

[The prepared statement of Mr. Metz can be found on page 69 

in the appendix.] 

Chairman ROBERTS. We thank you very much. 

Mr. Peppler. 

STATEMENT OF KENT PEPPLER, PRESIDENT, ROCKY 

MOUNTAIN FARMERS UNION 

Mr. PEPPLER. Good morning. My name is Kent Peppler. I am 

president of Rocky Mountain Farmers Union, a general farm organization whose members live in Colorado, New Mexico, and Wyoming. 

Water is critical to the livelihoods of family farms and ranches. 

The rulemaking process is designed to encourage conversation 

with, and feedback from, the regulated community. It is unreasonable to expect the proposed rule to get all the nuances precisely 

correct. 

Despite confusion over the rule, the basic process is still in place. 

EPA issued a proposed rule, sought feedback from the agricultural 

community, and fully expects to make changes, acknowledging 

farmers’ and ranchers’ expertise and insights. 

Our understanding of this process compelled us to stress the advantages of the new rule and present EPA with instructions on 

how to make the rule work for family farmers rather than resist 

the process entirely. We believe EPA’s efforts to define these regulations puts all farmers and ranchers on the same page rather than 

having to guess what is or what is not allowed project by project, 

permit by permit. 

RMFU echoes National Farmers Union’s four critiques of EPA’s 

proposed rules. 

First, while NFU argues wetlands should not be considered tributaries, RMFU believes that wetlands should not be considered 

tributaries unless they are in a floodplain. 

Second, there must be strict limits on what waters can be considered similarly situated. 

Third, groundwater connections warrant further examinations 

before they may be used as a basis for jurisdiction. 

Fourth, the definition of ‘‘perennial flow’’ should be clearly defined, allowing farmers to know with certainty whether ditches on 

their property are jurisdictional or not. 

37 

Right now, family farmers are subject to a convoluted pair of Supreme Court decisions on a statute that has not substantially been 

revisited since 1987. EPA and the Army Corps have had trouble 

applying the rules of the court rulings with consistency, preventing 

farmers from anticipating the jurisdiction status of the water on 

their land with any confidence. 

RMFU does not view the proposed rule, as some groups do, as 

a greedy grab for power or land. It is an attempt to meet the demands of the Supreme Court and allow commerce and agriculture 

to proceed without fear of unexpected permitting complications. 

The current regulatory landscape is unacceptable. We need more 

clarity and reliability. While the proposed rule did not accommodate all of agriculture’s concerns, I understand that the EPA will 

take all feedback, including that offered by Farmers Union members, under serious consideration. I expect a final rule from the 

EPA that will protect the nation’s water resources without obstructing our ability to farm and ranch productively. 

I would encourage all parties presenting testimony today to stop 

politicizing this matter and be good advocates for American farm 

families by telling EPA what needs to change in the rule. 

The value of our communities in the West is based on having 

pristine water for communities, for recreation, for agriculture, and 

for food processing. Eastern States are blessed with ample supplies 

of water. In the West, water is the most critical resource we have. 

We do not want that water to waste, and we cannot afford to pollute it. 

In conclusion, concerns over proposed definitions of ‘‘tributary’’ 

and ‘‘adjacent’’ are unwarranted because those definitions merely 

clarify existing jurisdiction. The final rule should establish that 

wetlands cannot be considered tributaries. Groundwater connections to jurisdictional water needs to be more. 

Rocky Mountain Farmers Union stands ready to provide this 

Committee with any further information or explanation that may 

be helpful in this matter. 

Thank you. 

[The prepared statement of Mr. Peppler can be found on page 

121 in the appendix.] 

Chairman ROBERTS. We thank you, Mr. Peppler. 

Mr. Kinley, I have three questions for you. 

Number one, you said that one million lives are lost every year 

worldwide due to the various problems with mosquitos and other 

infections. Is that correct, sir? 

Mr. KINLEY. Yes, Mr. Chairman, that is correct. 

Chairman ROBERTS. Do you have any figures for the United 

States? 

Mr. KINLEY. Any figures for the United States, they fluctuate 

given each year and each mosquito season, depending on the situation, and we have seen this in past year. 

If you look at just the State of Idaho, in 2006, we had—— 

Chairman ROBERTS. Right. You had the West Nile. 

Mr. KINLEY. —West Nile virus, a severe outbreak where 40-some 

people lost their lives, and there were over 1,000 human cases in 

a state where the population is only 1.2 million. 

38 

Since numbers fluctuate year by year, I do not have actual averages over the course of time for the United States. 

One thing we have working in our favor is that we have robust 

mosquito control programs established in many jurisdictions, and 

that helps balance the impact that these diseases have. 

Chairman ROBERTS. So we are talking about lives here, and I 

think people ought to understand that. 

With a proposed rule that is—we worry about costs. We also, obviously, worry about overregulation. My favorite commentary is 

regulating a farm pond where no self-respecting duck would ever 

land. 

That is all well and good, but you are talking about actual lives. 

I want to know if added costs—are there added costs that your 

county is having to pay as a result of the new permitting requirement, and if so, does this impact the frequency or type of treatments you are able to use? 

Mr. KINLEY. There are added costs, Mr. Chairman. Some of the 

costs are not necessarily quantifiable in terms of the amount of 

money that is spent. 

But, ultimately, what happens is to comply with these regulations time is spent identifying waters and in seeing what appropriate applications can be made to abate mosquitos and other pests 

in those waters and then costs associated with the time that it requires to report these activities. 

We actually have to delineate what applications we make to 

‘‘Waters of the United States’’ from applications that we make to 

private lands and state lands and other waters that are not necessarily under the jurisdiction of the Clean Water Act. 

Mosquitos do not care about time, and that is the bottom line, 

Mr. Chairman. 

Chairman ROBERTS. If the scope of regulated waters is expanded 

as EPA has proposed—and you have already answered this partially—how would this impact the work that you do? 

Mr. KINLEY. As jurisdiction is increased, we fear that more and 

more agencies—and these are Federal agencies, such as the Bureau 

of Reclamation or the Bureau of Land Management—will put further restrictions on what we can and cannot do on those lands as 

they pertain to water that exists on those lands, therefore, prohibiting the applications that we could make to control mosquitos that 

are actually developing on those Federally regulated lands and prohibiting our ability to do our jobs for the citizens that live near and 

around those properties. 

Chairman ROBERTS. Are you aware of this same type of concern 

in other counties in other states? 

Mr. KINLEY. I am very much so, Mr. Chairman. California, Oregon, and the State of Washington have very real issues with trying to deal with the NPDES reporting requirements, the NPDES 

permit as it stands at the state level, and so it is a very real concern, especially in the western part of the United States. 

Chairman ROBERTS. I thank you for your comments. 

Senator Stabenow. 

Senator STABENOW. Well, thank you very much, Mr. Chairman. 

Thanks to each of you. 

39 

Just one clarification, though, Mr. Kinley. It is my understanding 

that there has not been any general permit denied under the new 

law for spring. You do very important work, and it is my understanding there has not been any permits that have been denied. Is 

that your knowledge as well? 

Mr. KINLEY. As far as I know, Senator, that is correct. 

Senator STABENOW. Thank you. 

Mr. Peppler, I wonder if you could talk a little bit more about 

your family farm operation. 

By the way, thank you to everyone who has talked about the 

Farm Bill, on which we pride ourselves in working together and 

across party lines together on behalf of agriculture, farmers, and 

ranchers, and appreciate the comments that have been made about 

the work we were able to get done. 

But I wonder if you might talk about how your operation is currently affected by the Clean Water Act and what you will have to 

change, in your judgment, under the proposed rule and what your 

interaction has been related to the EPA. 

You talked about feeling that agriculture’s concerns will be addressed, and certainly, we all want that to happen. 

But talk a little bit about how you are affected by the Clean 

Water Act and what you would anticipate changing in terms of 

what you do, as you understand what will happen in terms of the 

rule. 

Mr. PEPPLER. Well, first of all, I would like to take this time on 

behalf of the farmers in the Rocky Mountain Farms Union to thank 

all of you for the fine job that you did on the Farm Bill. That was 

a feat that is not very common in Washington these days, and we 

respect all of you a great deal for it and thank you. 

Senator STABENOW. Thank you. 

Mr. PEPPLER. You asked me to talk about my farm. We cannot 

be here all day. 

[Laughter.] 

Mr. PEPPLER. I farm 500 acres of flood-irrigated ground in Northern Colorado. Our water source—I do not have wells. So our water 

source comes strictly from the mountains and snow pack. We have 

storage lakes along the front range of Colorado, Northern Colorado, 

to store this water, as well as we get some water from the other 

side of the Continental Divide through a reclamation project. 

I have upland ditches on our property that probably will not 

come under the rule, but our wastewater runs into sloughs that 

probably will come into the rules. 

We also have pretty significant oil and gas development on our 

farms also. 

To talk about the changes, what we would like to see as the fallout from the changes from the rule is that we would like to have 

more clarity. At this point, we are farming a little bit in the dark. 

I watched a World War II show last night, and General Montgomery said the Americans, they just do not know the rules. It is 

so much easier to play the game when you know the rules. 

Well, that is kind of the way I feel agriculture is. We just do not 

know the rules of the game, and we are hoping that this provides 

clarity and we will be able to utilize best management practice and 

40 

plan down the road those best management practices to help with 

our farming operation. 

Senator STABENOW. You know, Mr. Peppler, I wonder if I 

might—just on that point, talking about certainty, we have heard 

a lot of concerns about keeping the comment period going, going 

back and doing it over, and so on. 

Since people want and need certainty, it seems to me I would be 

concerned about going back and starting over another 200 days and 

still not knowing. 

I mean, the court created a mess, this last decision with five different opinions. I never heard of that before. 

There is no question everyone feels they are trying to figure out 

what is going on. 

So I am wondering if you think limiting the Clean Water Rule 

and starting all over again would be wise for creating certainty at 

this point in agriculture. 

Mr. PEPPLER. The Rocky Mountain Farmers Union thinks that 

we ought to continue the course that we are on in the rulemaking. 

To just ditch the rule, as some would say—time is money, and 

it will be costly, and it will cause a rise. We think it will cause a 

rise to more lawsuits, which puts the decision-making in the hands 

of the court. I would rather put the decision-making in those of us 

on this panel and those of you up there. 

Senator STABENOW. Thanks very much, Mr. Chairman. 

Chairman ROBERTS. We have a vote at 12. So we would—the 

Chair would like to advise Senators if we could keep it down to a 

reasonable time. 

Senator Boozman, please. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

In the interest of time, I really just want to—in fact, I will ask 

Commissioner Padgett. 

A lot has been said about certainty. My understanding, as somebody that has been in water resources, in one form or another for 

the last 13, 14 years while I have been in Congress, is the new rule 

is so broad. You know, it can be interpreted so many ways. Instead 

of making things certain, it really creates a lot of uncertainty. 

So I guess my question would be: Because of the situation that 

we are in, wouldn’t it make sense to provide legislation that would 

make these things crystal clear as far as the concerns that we have 

in agriculture? 

Ms. PADGETT. Yes. Thank you, Senator. 

It would make the most sense at this point to follow what NACO 

is requesting, which is to withdraw the rule and go back to having 

a good consultation process with partners. We are calling for a 

stronger collaborative rulemaking process. 

What I am hearing here at the table, Mr. Senator, is that from 

the various perspectives there is uncertainty, not just for counties 

but for all of the stakeholders. But counties are partners and we 

have public safety mandates that are very serious. So we really 

need to make sure it is done right. 

We have provided the agencies with a list of questions that was 

very detailed since they did not consult with us prior to publishing 

in the Federal Register, and those questions largely are still unanVerDate Nov 24 2008 10:59 Feb 12, 2016 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 C:\USERS\MW42035\DESKTOP\DOCS\96174.TXT MICAH
41 

swered. Only a handful were able to get answered, which, again, 

just keeps highlighting this uncertainty and confusion. 

If we cannot have certainty, we really do need to go back. 

I just want to point out a couple things about the flawed process. 

If we go back to—the Corps will tell you that the Corps did consult with counties a little bit before, 10 years ago, before they published in the Federal Register. 

They did not consult with the counties prior to publishing, and 

in fact, the 17 months leading up to that publishing for public comment there was absolute silence. 

Questions that we have from counties: The roadside ditches. If 

culverts flood, are we going to be able to save our assets, and save 

our residents and visitors, when the roads flood. In the arid West 

we have monsoons that quickly turn into flash floods. 

That is just one example, sir. 

Senator BOOZMAN. Thank you. 

Thank you, Mr. Chairman. 

I think the reality is they do not know the answer to those questions themselves, which is a real problem. 

So, thank you, Mr. Chairman. 

Chairman ROBERTS. Thank you. 

Senator Bennet. 

Senator BENNET. Thank you, Mr. Chairman. 

Before I ask my questions, I would like to submit several documents into the hearing record. 

The first is a letter that our office authored, with help from elected officials and leaders in Colorado’s water community, to the EPA, 

asking for clarity on several provisions of the rule that have heightened importance for those of us from the arid West. 

Secondly, I would like to enter several letters in the record from 

elected officials in Colorado. 

I would ask unanimous consent. 

Chairman ROBERTS. Without objection. 

Senator BENNET. Thank you, Mr. Chairman. 

[The following information can be found on page 159 in the appendix.] 

Senator BENNET. I know time is short. So I am just going to ask 

one question of each Coloradan that is here today. 

Kent, this panel has heard today that EPA’s stated goal in this 

rulemaking is to restore the Clean Water Act to its historic reach, 

to return it to the law that was enforced by President Reagan, by 

two President Bushes. 

You were born and raised in Colorado and have had the chance 

to see the importance of the Clean Water Act on the ground firsthand, both as a farmer and as a citizen of a state where water is 

truly the lifeblood of our economy, and our culture, for that matter. 

Can you talk a little bit about your experience having seen Colorado’s rivers and streams before and after the Clean Water Act was 

passed? 

Mr. PEPPLER. I think I can shed some light on that. 

First of all, you are exactly right. In Colorado—and I do not care 

what farm organization you belong to. I do not care what rotary 

club you belong to—water is the number one issue, and clean, pristine water is the key to our economy. 

42 

We were just talking about this the other day, that people beat 

up on the environmental movement. They beat up on the EPA. But 

those of us that have lived along these rivers, along the front range 

in Colorado, know the significant improvements that have come in 

the last 40 to 50 years. 

When I was a young boy and we would go to Denver, the Platte 

River was so putrid you did not even want to look at. There were 

all kinds of different industries dumping pollutants in there. 

Isn’t your office at Confluence Park? 

Senator BENNET. Yes it was. 

Mr. PEPPLER. I will tell you when I was a little boy you would 

have never had your office at Confluence Park because you could 

not stand the stench, and today, there are people out there 

kayaking in it. That is the change that we have seen. 

So the importance of clean water to the State of Colorado and to 

this country, you cannot put a value on it. It is absolutely priceless. 

Senator BENNET. Thank you, Kent. 

Commissioner Padgett, Lynn, you have been a tireless advocate 

for clean water in Colorado as well. 

One issue that we have worked on together in the past is the socalled ‘‘Good Samaritan’’ legislation that provides regulatory flexibility for groups like Trout Unlimited or the Boy Scouts of America 

to get out on the ground and clean up abandoned hard rock mines 

that are harming water quality. 

You have been one of the nation’s leaders on this issue, and since 

we are discussing clean water here I was hoping you could share 

some of the challenges your community is facing that stem from 

the legacy of abandoned hard rock mining operations. 

Ms. PADGETT. Thank you, Senator. 

Yes, it is true I have been very active on the ability of parties 

who have no connection, financial connection, to historic mines that 

were mined before there were even permits, to measurably and demonstrably improve water quality. 

That means, for those of us in the room that are not from Colorado or from areas with hard rock mining to remove acidic conditions and remove metals that may be toxic in local water resources. 

But the Clean Water Act that we are talking about today, the 

proposed rule, is really about the proposed definition change to the 

‘‘Waters of the U.S.’’ Unfortunately, it does not change the situation of ‘‘Good Samaritans,’’ those who are not financially responsible, being able to improve water quality at hard rock abandoned 

mine sites without liability, without lawsuits. 

Counties, I just want to say, are very much in support of clean 

water. In Ouray County, as a headwaters community in the mountains, we very depend on this clean water, not just for agriculture 

but for municipal and industrial use. We depend on it for tourism, 

recreation, and our environment. 

We want to work with the Federal Government and the states 

and other partners to implement Clean Water Act programs that 

are clear and consistent, and that is what our concern is from counties—is that the current proposed definition does not address, in 

our opinion, the flaws in the current definition of the ‘‘Waters of 

the U.S.’’ in the Clean Water Act. 

43 

I will point out I am a Clean Water Act baby. I was one year old 

when the Clean Water Act was passed, and I am very grateful that 

the water and the whole nation has been improved by the Clean 

Water Act. 

But as a county commissioner, if I cannot provide public safety 

services because of the proposed ‘‘Waters of the U.S.’’ definition 

change and how that cascades to other Federal regulations—there 

are limitations on the number of acres you can treat with a permit, 

for example, and for counties that is a big concern. A limited number of acres you can do public safety services on in a single calendar year. 

We have concerns about being able to balance the clean environment, clean water, and our public safety, and also ensure that our 

agricultural patterns are also going to be intact. 

Senator BENNET. Thank you, Mr. Chairman. My time is up. 

Chairman ROBERTS. Senator Cochran. 

Senator COCHRAN. Mr. Chairman, thank you. 

My question is for Mr. Brodie, Vice President of Charles Ingram 

Lumber Company in South Carolina, dealing with ways to reduce 

impact on the ‘‘Waters of the U.S.’’ Rule. 

The lumber industry shareholders in my State of Mississippi are 

concerned, to me, and have expressed concern to me about the imposition of new costs and burdens on forestry operations that would 

provide no real benefits in addition to what existing regulations 

permit. 

Does the lumber industry in South Carolina have this same opinion? 

Mr. BRODIE. Yes, we do, Senator. I will just give you one example 

of an additional cost. 

Our BMPs require us to, when we are harvesting a tract of land, 

if there is an ephemeral stream or flowing body of water, to leave 

a buffer zone on either side of that water feature. 

If, in fact, ditches now become jurisdictional waters and we have 

to leave buffer zones on the sides of ditches, it is going to take out 

of production a vast amount of land in our area. We are in the 

coastal plain of South Carolina, and it is basically flat, and you 

have ditches everywhere. 

That is just one example of the additional costs. 

Then the other cost that really concerns us is it looks to me like 

the way this rule is written it is some lawyer’s ‘‘Dream Act’’ for 

bringing suits against industry, and then the courts will be deciding whether or not this applies, not Commissioner McCarthy. That 

is the biggest fear that we have right now. 

Thank you. 

Senator COCHRAN. Thank you, Mr. Chairman. 

Chairman ROBERTS. Senator Thune. 

Senator THUNE. Thank you, Mr. Chairman, and thanks to the 

panel today. 

What concerns me the most about this EPA-proposed ‘‘Waters of 

the U.S.’’ Rule is that it is just another example of what has become an all too common practice of this administration, to reach 

into the lives, livelihoods, and pocketbooks of the American people 

that it is supposed to be helping. 

44 

Even before this rule is finalized, the cost of just the proposed 

rule to the people that it is supposed to be helping is staggering. 

Think about the amount of time taken for respondents to file over 

a million comments to the proposed rule, the number of congressional hearings, including this one, and individuals, small businesses, and county and state governments who have worked hard 

to keep this rule from destroying their livelihoods. It has cost already millions of dollars to counter a government that was created 

to be of assistance. 

So, Mr. Chairman, I would like to just share some of the comments taken from the testimony of each of today’s witnesses. I 

think they tell the story of what is a misguided rule better than 

any of us on the Committee can tell it. 

These are just some of the excerpts about the proposed ‘‘Waters 

of the U.S.’’ Rule from today’s testimony: 

Lacks clarity, consistency, certainty. 

One-size-fits-all regulation is not the answer. 

State and local governments were not adequately consulted. 

Undefined and unclear and lack of clarity. 

I have yet to receive a direct answer from EPA. 

Adds to confusion. 

It complicates already inconsistent definitions. 

The number of waters protected by the Clean Water Act will increase. 

Increases regulatory burdens. 

Significant costs. 

Fails miserably at adding clarity. 

Threatens the agricultural community. 

Extensive legal arguments have been made explaining how the 

rule is unlawful. 

Vagueness and uncertainty surrounding the rule. 

States were not included in a meaningful way in creating the 

new definitions. 

EPA proposal will subject agricultural operations to more pervasive Federal intrusion. 

The rule is clearly focused on expanding the role of the Federal 

regulatory agencies into the daily lives of people around the country. 

It appears that I will now need a Federal permit in order to 

plough, apply fertilizer or pesticides, graze cattle, or even build a 

fence in these areas or even around them. 

A Federal permit will cost me time, money, and the Federal Government is under no obligation to even give me. 

Simply cannot afford to be required to obtain a Federal permit 

each time we go out to maintain these roads because of the ditches 

that run alongside them. 

There are ambiguities in the present regulatory landscape that 

many producers have found arbitrary and confusing. 

Those are just a few of the comments that were in the testimony 

that we received today from these various witnesses. 

I would submit, Mr. Chairman, that this is just a very, very 

wrongheaded move. The rule excessively expands jurisdictional authority and, due to a lack of clarity, creates opportunities for all 

45 

kinds of unintended consequences to plague the forestry sector and 

other sectors of our economy for years to come. 

So my question, I guess, I would say to all of you because I think 

is something that we have raised. We raised this last year in a 

meeting with the administrator, and that is do you believe that the 

EPA did an adequate job of reaching out and soliciting information 

from your respective industries, businesses, or entities before it 

published the proposed rule because EPA Administrator McCarthy 

told many of us on the Committee last year that her agency would 

make an intensive effort to solicit information from stakeholders 

before publication of the final ‘‘Waters of the U.S.’’ Rule. 

Did any of you believe that happened? 

Chairman ROBERTS. Let’s start with Commissioner Padgett. You 

each have about five seconds to respond to that. 

[Laughter.] 

Ms. PADGETT. No, sir, it was inadequate. 

Chairman ROBERTS. Mr. Brodie. 

Mr. BRODIE. No. 

Chairman ROBERTS. Mr. Kinley. 

Mr. KINLEY. The American Mosquito Control Association, Northwest Mosquito Control Association, and many mosquito abatement 

districts were not aware of this proposed rule until after it was 

published. 

Chairman ROBERTS. Mr. McLennan. 

Mr. MCLENNAN. No. 

Chairman ROBERTS. Mr. Metz, representing Nebraska, who left 

the Big 12 to go to the Big 10. 

[Laughter.] 

Mr. METZ. Not at all, sir. 

Chairman ROBERTS. Mr. Peppler. 

Mr. PEPPLER. I think the EPA has gone out of their way and is 

making a definite effort to reach out to all stakeholders. 

Chairman ROBERTS. Well, five out of six is not too bad. 

Mr. Hoeven. 

Senator THUNE. He is a very still—— 

Chairman ROBERTS. Batting cleanup. 

Senator THUNE. He is very sore about that Big 12 thing I feel 

you should know. 

[Laughter.] 

Senator HOEVEN. Thank you, Mr. Chairman. 

When Senator Thune started talking, I was not sure where he 

was. I found him there. 

Senator THUNE. I am down here in the kids section of the end 

bench. 

Senator HOEVEN. I want to begin by thanking Mac McLennan for 

joining this panel and for being here to testify on ‘‘Waters of the 

U.S.’’ and for leading a company, Minnkota Power, that is doing 

amazing things in producing cost-effective, dependable energy from 

both traditional and renewable sources, and doing it without outstanding environmental stewardship and, in fact, right now building transmission at a time when that is very hard to do, to produce 

more energy, again from both traditional and renewable sources. 

That is the way to do it. 

46 

The right guy to have here because we are talking about good environmental stewardship, but we are talking about doing it in a 

way that works. 

Mac, thanks for being here. Thanks for what you do. 

I know you will agree with me, both that ‘‘Waters of the U.S.’’ 

is not the way to accomplish good environmental stewardship and 

that, second, the UND hockey team, currently rated number one in 

the country, is going to march through the tournament to the Frozen 4. 

Mr. MCLENNAN. I would just say they better play better than 

they did last weekend. 

Senator HOEVEN. They are getting ready. They are going to do 

it. 

The question I want to start with, though, is to you, Mac, and 

then I am going to follow up and let everybody respond. 

But ‘‘Waters of the U.S.’’ has been put forward by the EPA as 

a proposed rule. Last year on the Appropriations Committee, we 

defunded the interpretive rule, which helps our farmers, but the 

underlying proposed regulation is still there. We need to defund it 

or, better, to deauthorize it, which myself and others here are 

working to do. 

But talk for a minute about the impact on costs—and then I 

want to go to the others here—because energy is a foundational industry sector. When you provide energy, everybody else uses that 

energy, and so when your costs are driven up, that affects everybody else. 

We have talked about the impact on our farmers, how EPA is 

going beyond their authorized authority. They have authority over 

navigable bodies of water. They have now extended it beyond what 

the Supreme Court has said they have authority to do. 

They not only make it almost impossible for our farmers and 

ranchers to know what they can do on their own farm or ranch, 

which is a private property right, but they are affecting every other 

industry sector. 

Talk for a minute about how this driving up your costs, a company that works very hard on environmental stewardship, will impact ag but all industry sectors as you work to provide power. 

Mr. MCLENNAN. Thank you, Senator Hoeven. 

A couple of comments on the cost side. 

You are right. The costs really come in two-fold. One is the processing cost, and everybody pays that as it relates to your permits 

and so on. Real cost comes in delay and uncertainty associated 

with what you do. 

I mentioned in my earlier testimony that today utilities operate 

under a nationwide permit which allows us flexibility and is manageable most of the time. 

The challenge with this is that if you redefine waters and you 

add wetlands and you add a whole series of things for which our 

ability to operate under that nationwide permit is not any longer 

allowed, now we go to a full permitting process, and so the real cost 

associated with that becomes delay. 

So the longer to get your projects done and the longer to get 

them permitted because it is not—water is not the only thing, particularly in a linear project like a transmission line, that you have 

47 

to worry about. So bird issues and any number of other things. 

They work in harmony. 

So we had a—I will use an example of what cost means. You referenced we just completed a 350-mile or a 250-mile transmission 

line for $353 million. We paid $30 million for that line more because of a challenge with the Corps of Engineers over what do we 

do with bird diverters—a simple, little plastic thing up there that 

the birds can see the lines so that it can work. 

So you talk about—that did not have anything to do with the 

cost of the diverters. That was just a delay to the line. 

So you increase, with this proposal, the opportunity that we end 

up with more of those, and those are the real expenses. 

We can probably all live with the processing of the permits. It 

is really the what happens to a project schedule and timeline and 

framework as it relates to projects that are linear and extremely 

expensive. 

Senator HOEVEN. Don’t those increased costs get passed on to 

your consumers? 

Mr. MCLENNAN. They do in our case. There is nowhere else to 

go in a co-op except to those rural electric consumers who are paying for it. 

Senator HOEVEN. So I would ask each one of our witnesses, briefly: 

One, are you for good environmental stewardship? Are you working to achieve that? 

But, in terms of ‘‘Waters of the U.S.,’’ doesn’t that create uncertainty that makes it more difficult to do not only what you are trying to do but make sure that you are complying and meeting good 

environmental standards? 

Start with Commissioner Padgett. 

Ms. PADGETT. Thank you, Senator. 

The costs come in two ways. 

They come in hard costs—costs of getting permits, costs of hiring 

consultants, for small counties especially, consultants for cultural 

resources, consultants for the Endangered Species Act—which cascade over what is jurisdictional. So not understanding what is 

clearly jurisdictional, is costly. 

Then, delays. Delays in performing those public safety duties can 

be costly in terms of money. We can lose tourists, we can lose sectors of our economy, and we can actually sometimes have injuries 

or lose worse. 

Senator HOEVEN. Mr. Brodie. 

Mr. BRODIE. We are certainly in favor of environmental conservation. That is the source of our livelihood. 

What does concern me is that we have a 35 to 40-year planning 

horizon. I am investing money in trees today that will be harvested 

35 to 40 years from now as all of these Federal regulations come 

along. 

You wonder, well, what is the next regulation? What is the next 

regulation? What is that going to do to us? 

At some point, that impacts the desire of people to plant trees 

and invest in forestry. The best way to clean up water is to plant 

more trees. 

Senator HOEVEN. Mr. Kinley. 

48 

Mr. KINLEY. I do not know a mosquito control profession out 

there, Senator, that is not an environmental steward, and we take 

that very, very seriously in our profession. 

To follow up with a previous question, while no NPDES permits 

have been denied to a mosquito control program, the costs of administering NPDES permits is substantial and is very significant. 

I mentioned it takes 3 weeks per year and a 20 percent investment in software and hardware to comply with the regulatory requirements and the reporting requirements associated with the 

Clean Water Act, the NPDES permits, and ‘‘Waters of the United 

States’’ pesticide applications. 

What we have seen over the course of the last several years is 

that there really is no additional environmental benefit. 

Senator HOEVEN. Mac, another? Anything else? 

Mr. MCLENNAN. I am good, Senator. 

Senator HOEVEN. Thanks. 

Mr. Metz. 

Mr. METZ. Thank you. 

The ‘‘Waters of the United States’’ expands the reach of the Federal Government. We are all for clean water, but this rule puts 

such a heavy burden on farmers and ranchers. 

Farmers and ranchers are the best stewards of the land. I mean, 

we are environmentalists. 

Senator HOEVEN. I know. 

Mr. METZ. We are the true environmentalists of this land. We 

have to have clean water to do our farming practices the right way. 

Otherwise, we are not in business. 

We have no way to pass that cost or extra burden or extra regulatory authority on. We are takers of what the market is, whether 

it is corn, wheat, cattle. We cannot set the price. We cannot pass 

that on to a consumer. We take what that market is per bushel or 

per pound. 

Thank you. 

Senator HOEVEN. You may have left the Big 12, but that was certainly well said. 

Mr. METZ. Thank you. 

Senator HOEVEN. Mr. Peppler. 

Mr. PEPPLER. You know, it is difficult for me to measure the 

costs to agriculture, and one of the reasons is we have a tremendous amount of exemptions involved with this rule. I think the 

costs will be less maybe compared to other industries. 

But I agree with Mr. Metz. The reason we have those exemptions 

is because we have earned them. We have embraced conservation. 

We have embraced increased productivity. We have embraced productivity; we have increased. 

We do not run away from issues. Whether it is a conservation 

issue or a rulemaking issue, we do not run. We have earned those 

exemptions. 

I just want it on the record because I have been dressed down 

a little bit on why agriculture gets treated better. But we are the 

true conservationists. 

Senator HOEVEN. Thank you, Mr. Peppler. 

Thank you, Mr. Chairman. 

Chairman ROBERTS. Thank you, Senator Hoeven. 

49 

Today, we have heard from members of both sides of this dais 

raise concerns with this rule and suggest EPA and the Corps of Engineers reconsider. 

I certainly hope the EPA and this administration listens to the 

vast majority of stakeholders and the views that have expressed 

here today. 

This concludes the second panel. 

Thank you again to each of our witnesses for being part of government in action. We hope that is two words. 

The testimony provided today is valuable for lawmakers to hear 

firsthand; it has been. 

Statements and questions for the record are to be submitted to 

the Committee clerk 5 business days from today. 

The Committee is adjourned. 

[Whereupon, at 12:21 p.m., the Committee was adjourned.] 

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