U.S. GOVERNMENT PUBLISHING OFFICE

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THE FUTURE OF WOTUS: 

EXAMINING THE ROLE OF STATES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT 

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 29, 2017 

Serial No. 115–39 

Printed for the use of the Committee on Science, Space, and Technology 

( 

Available via the World Wide Web: http://science.house.gov 
(II) 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

HON. LAMAR S. SMITH, Texas, Chair 

FRANK D. LUCAS, Oklahoma 

DANA ROHRABACHER, California 

MO BROOKS, Alabama 

RANDY HULTGREN, Illinois 

BILL POSEY, Florida 

THOMAS MASSIE, Kentucky 

JIM BRIDENSTINE, Oklahoma 

RANDY K. WEBER, Texas 

STEPHEN KNIGHT, California 

BRIAN BABIN, Texas 

BARBARA COMSTOCK, Virginia 

BARRY LOUDERMILK, Georgia 

RALPH LEE ABRAHAM, Louisiana 

DRAIN LAHOOD, Illinois 

DANIEL WEBSTER, Florida 

JIM BANKS, Indiana 

ANDY BIGGS, Arizona 

ROGER W. MARSHALL, Kansas 

NEAL P. DUNN, Florida 

CLAY HIGGINS, Louisiana 

RALPH NORMAN, South Carolina 

EDDIE BERNICE JOHNSON, Texas 

ZOE LOFGREN, California 

DANIEL LIPINSKI, Illinois 

SUZANNE BONAMICI, Oregon 

AMI BERA, California 

ELIZABETH H. ESTY, Connecticut 

MARC A. VEASEY, Texas 

DONALD S. BEYER, JR., Virginia 

JACKY ROSEN, Nevada 

JERRY MCNERNEY, California 

ED PERLMUTTER, Colorado 

PAUL TONKO, New York 

BILL FOSTER, Illinois 

MARK TAKANO, California 

COLLEEN HANABUSA, Hawaii 

CHARLIE CRIST, Florida 

SUBCOMMITTEE ON ENVIRONMENT

HON. ANDY BIGGS, Arizona, Chair 

DANA ROHRABACHER, California 

BILL POSEY, Florida 

MO BROOKS, Alabama 

RANDY K. WEBER, Texas 

BRIAN BABIN, Texas 

BARRY LOUDERMILK, Georgia 

JIM BANKS, Indiana 

CLAY HIGGINS, Louisiana 

RALPH NORMAN, South Carolina 

LAMAR S. SMITH, Texas 

SUZANNE BONAMICI, Oregon, Ranking 

Member 

COLLEEN HANABUSA, Hawaii 

CHARLIE CRIST, Florida 

EDDIE BERNICE JOHNSON, Texas 
(III) 

C O N T E N T S 

November 29, 2017 

Page 

Witness List ............................................................................................................. 2 

Hearing Charter ...................................................................................................... 3 

Opening Statements 

Statement by Representative Andy Biggs, Chairman, Subcommittee on Environment, Committee on Science, Space, and Technology, U.S. House of 

Representatives .................................................................................................... 4 

Written Statement ............................................................................................ 5 

Statement by Representative Suzanne Bonamic, Ranking Member, Subcommittee on Environment, Committee on Science, Space, and Technology, 

U.S. House of Representatives ............................................................................ 7 

Written Statement ............................................................................................ 9 

Witnesses: 

Mr. Wesley Mehl, Deputy Commissioner, Arizona State Land Department 

Oral Statement ................................................................................................. 11 

Written Statement ............................................................................................ 14 

Mr. James K. Chilton Jr., Rancher, Chilton Ranch 

Oral Statement ................................................................................................. 30 

Written Statement ............................................................................................ 32 

Mr. Ken Kopocis, Adjunct Associate Professor, American University Washington College of Law 

Oral Statement ................................................................................................. 41 

Written Statement ............................................................................................ 43 

Mr. Reed Hopper, Senior Attorney, Pacific Legal Foundation 

Oral Statement ................................................................................................. 56 

Written Statement ............................................................................................ 58 

Discussion ................................................................................................................. 77 

Appendix I: Answers to Post-Hearing Questions 

Mr. Ken Kopocis, Adjunct Associate Professor, American University Washington College of Law .......................................................................................... 100 

Appendix II: Additional Material for the Record 

Statement submitted by Representative Eddie Bernice Johnson, Ranking 

Member, Committee on Science, Space, and Technology, U.S. House of 

Representatives .................................................................................................... 104 

Documents submitted by Representative Colleen Hanabusa, Committee on 

Science, Space, and Technology, U.S. House of Representatives ..................... 106 

Letter submitted by Representative Mark Takano, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 120 

Documents submitted by Representative Paul Tonko, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 123 
Page

IV 

Letter submitted by Representative Andy Biggs, Chairman, Subcommittee 

on Environment, Committee on Science, Space, and Technology, U.S. House 

of Representatives ................................................................................................ 148 

Documents submitted by Representative Suzanne Bonamic, Ranking Member, 

Subcommittee on Environment, Committee on Science, Space, and Technology, U.S. House of Representatives ............................................................... 151 
(1) 

THE FUTURE OF WOTUS: 

EXAMINING THE ROLE OF STATES 

Wednesday, November 29, 2017 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 10:22 a.m., in Room 

2318 of the Rayburn House Office Building, Hon. Andy Biggs 

[Chairman of the Subcommittee] presiding. 
2 

tAMAR S. SMITH, Texas 

CHAIRMAN 

~ogress of the tinttcd ~tatcs 

'!louse of 'Rcprcscntntiocs 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

2321 RAYBURN HOUSE 0FRCE BUILDING 

WASHINGTON1 0C 20515-6301 

(202) 225-6.371 VNIW.~i&n.::e.hcusl!.gov 

Subcommittee on Environment 

The Future of WOTUS: Examining the Role of States 

Wednesday, November 29,2017 

10:15 a.m. 

2318 Rayburn House Office Builiing 

Wesley Mehl, Deputy Commissioner, Arizona Land Depmtment 

James K. Chilton Jr., Rancher, Chilton Ranch 

EDDIE BERNICE JOHNSON, Tuas 

RANKING MEMBER 

Ken Kopocis, Adjunct Associate Professor, American University Washington 

College of Law 

Reed Hopper, Senior Attorney, Pacific Legal Foundation 
3 

U.S. HOUSE OF REPRESENTATIVES 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

HEARING CHARTER 

Wednesday, November 29, 2017 

TO: Members, Subcommittee on Environment 

FROM: Majority Staff, Committee on Science, Space, and Technology 

SUBJECT: Subcommittee Hearing: 'The Future ofWOTUS: Examining the Role of States" 

The Subcommittee on Environment will hold a hearing 1tle Future of WOTUS: Examining the 

Role of States on Wednesday, November 29, 2017, at 10:00 a.m. in Room 2318 of the Rayburn 

House Office Building. 

Hearing Purpose: 

The purpose of this hearing is to survey the current status of federal water regulations and their 

impact at the state level. This hearing will also examine options to improve federal water rules 

moving forward. 

Witness List 

Mr. Wesley Mehl, Deputy Commissioner, Arizona State Land Depmiment 

• Mr. James K. Chilton Jr., Rancher, Chilton Ranch 

Mr. Ken Kopocis, Adjunct Associate Professor, American University Washington 

College of Law 

• Mr. Reed Hopper, Senior Attorney, Pacific Legal Foundation 

Staff Contact 

For questions related to the hearing, please contact Majority Staff at 202-225-6371. 
4 

Chairman BIGGS. Good morning. The Subcommittee on Environment will come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Subcommittee at any time. 

Welcome to today’s hearing entitled ‘‘The Future of WOTUS: Examining the Role of States.’’ 

And I thank all of our witnesses who are here. We’re glad to 

have all of you here and Members of the Committee. I recognize 

myself for five minutes for an opening statement. 

Welcome to today’s hearing, ‘‘The Future of WOTUS: Examining 

the Role of States.’’ I thank our expert panel of witnesses for being 

here today and agreeing to testify about this important topic. 

The Waters of the United States rule, or WOTUS, issued by the 

EPA in 2015, amounted to one of the biggest federal overreaches 

in modern history. Not only did the rule’s flimsy definitions and 

underlying science mean that the Agency had the ability to regulate private land, but it also placed significant financial burdens on 

some of our country’s hardest workers. 

I am very pleased to have representatives here today from my 

home State of Arizona to discuss how this rule would affect them 

and what changes they believe would make water regulations better for this country. 

We all want to be good stewards of the environment. We also 

want to be good stewards for the people we are here in Washington 

to represent. When a federal agency overlooks the needs of American citizens, we in Congress have a duty to ask questions and address the concerns of our constituents. For example, when WOTUS 

was proposed, there was a large outcry from stakeholders across 

the Nation that the rule’s vague definitions regarding navigable 

water could include sometimes dry drainage ditches on private 

farmland. It’s absurd to consider a dry ditch ‘‘navigable.’’ Our Nation depends on the hard work of farmers and ranchers. These men 

and women simply don’t have the time to deal with bureaucratic 

nonsense. Of course, it’s not just them who suffer. Costly and unnecessary government mandates have drastic economic impacts on 

each and every one of us. 

The shortcomings of WOTUS are so self-evident that it’s not surprising this onerous rule has been challenged across the country. 

And now we can point to a very encouraging action from the new 

Administration. President Trump recently issued an executive 

order directing EPA and the Army Corps of Engineers to review 

the WOTUS rule. I applaud the Administration for heeding the 

calls of Americans. A revision to the 2015 rule is desperately needed to provide greater clarity to States and stakeholders. Instead of 

rushing forward with burdensome federal regulations, the government needs to do its due diligence and propose a rule that is helpful, not harmful. 

Today, we will hear ideas about how some of those fixes to the 

regulation should look. Witnesses will inform Congress how federal 

water regulations affect them and what they need from the government to continue operating effectively. I look forward to a knowledgeable and substantive discussion. 

[The prepared statement of Chairman Biggs follows:] 
5 

COMMITTEE ON 

SCIENCE, 

Lamar Smith. Chairman 

For Immediate Release 

November29, 2017 

TECHNOLOGY 

Media Contacts: Thea McDonald, Brandon VerVelde 

(202) 225-6371 

Statement from Andy Biggs (R-Ariz.) 

The Future of WOTUS: Examining the Role of States 

Chairman Biggs: Welcome to today's hearing, "The Future of WOTUS: Examining the 

Role of States." I want to thank our expert panel of witnesses for being here today and 

agreeing to testify about this important topic. 

The Waters of the United States rule, or WOTUS, issued by the Environmental Protection 

Agency (EPA) in 2015, amounted to one of the biggest federal overreaches in modern 

history. Not only did the rule's flimsy definitions and underlying science mean that the 

agency had the ability to regulate private land, but it also placed significant financial 

burdens on some of our country's hardest workers. 

I am very pleased to have representatives here today from my home state of Arizona 

to discuss how this rule would affect them and what changes they believe would 

make water regulations better for this country. 

We all want to be good stewards of the environment. We also want to be good 

stewards for the people we are here in Washington to represent. When a federal 

agency overlooks the needs of American citizens, we in Congress have a duty to ask 

questions and address the concerns of our constituents. 

For example, when WOTUS was proposed, there was a large outcry from stakeholders 

across the nation that the rule's vague definitions regarding navigable water could 

include sometimes-dry drainage ditches on private farmland. It is absurd to consider a 

dry ditch "navigable." Our nation depends on the hard work of farmers and ranchers: 

these men and women simply don't have the time to deal with bureaucratic 

nonsense. Of course, it's not just them who suffer: costly and unnecessary government 

mandates have drastic economic impacts on each and every one of us. 

The shortcomings of WOTUS are so self-evident that it is not surprising this onerous rule 

has been challenged across the country. And now we can point to a very 

encouraging action from the new administration: President Trump recently issued an 

executive order directing EPA and the Army Corps of Engineers to review the WOTUS 

rule. 
6 

I applaud the administration for heeding the calls of Americans. A revision to the 2015 

rule is desperately needed to provide greater clarity to states and stakeholders. 

Instead of rushing forward with burdensome federal regulations, the government 

needs to do its due diligence and propose a rule that is helpful, not harmful. 

Today we will hear ideas about how some of those fixes to the regulation should look. 

Witnesses will inform Congress how federal water regulations affect them and what 

they need from the government to continue operating effectively. 

I look forward to a knowledgeable and substantive discussion. 

### 
7 

Chairman BIGGS. And I ask for unanimous consent to enter the 

comments of the American Road and Transportation Builders Association to the EPA regarding the regional WOTUS rule. 

[The information appears in Appendix II.] 

Chairman BIGGS. With that, I yield back and recognize the Ranking Member, Ms. Bonamici of Oregon, for her opening statement. 

Ms. BONAMICI. Thank you, Mr. Chairman. 

From Oregon’s Willamette Valley to the Chesapeake Bay, Americans want the Waters of the United States to be safeguarded from 

harmful pollutants. They want this protection because our national 

ecosystem is interconnected, and what happens upstream is going 

to influence what happens downstream, especially to drinking 

water. Clean water is essential for our survival, and humanity has 

been dealing with issues related to access to clean water since the 

dawn of civilization. 

The needs of individual States are far more similar than they are 

different. The Clean Water Act exists in part because there was a 

time when states had primary responsibility for keeping waters 

within their State clean and safe. Unfortunately, many of those 

States were not able to meet that responsibility, and Americans 

watched as some of those waters became dirty and polluted and 

others caught on fire. 

Back in 1972, amendments to the Clean Water Act redefined the 

waters covered under the act to include the Waters of the United 

States, including the territorial seas, but Court opinions addressing 

which bodies of water fit that definition have been inconsistent. 

The genesis of the Clean Water Rule comes from the 2006 U.S. Supreme Court case Rapanos v. United States in which the Court did 

not reach a majority decision about what constitutes a water of the 

United States, and the result of that decision was confusion. The 

purpose of the rule is to minimize confusion by clarifying the jurisdiction of the Clean Water Act. 

After the Rapanos case but prior to the rule, the EPA released 

a report titled ‘‘Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.’’ 

Mr. Chairman, I ask for unanimous consent to enter the executive 

summary of this report into the record. 

The report reviewed more than 1,200 publications from peer-reviewed scientific literature, and the report itself went through two 

separate independent peer reviews. The report drew five major conclusions, which provided initial support for the Clean Water Rule. 

One conclusion was the scientific literature unequivocally demonstrates that streams individually or cumulatively exert a strong 

influence on the integrity of downstream waters, all tributaries, 

streams, including perennial, intermittent, and ephemeral streams 

are physically, chemically, and biologically connected to downstream rivers. 

As Mr. Kopocis explains in his testimony, before the Waters of 

the United States rule was finalized in May of 2015 the EPA received and considered more than 1 million public comments and 

held more than 400 public meetings. And though some suggest that 

despite past performance, States rather than Environmental Protection agencies should conserve America’s waterways, watersheds, 

rivers, lakes, and streams, in response to such a suggestion in the 
8 

Rapanos case, former Supreme Court Justice John Paul Stevens 

said, quote, ‘‘The fact that the States have the power and the interest does not necessarily mean that the Federal Government does 

not also have the power.’’ 

Now, I don’t want to return to a time when our waters were 

dirty, polluted, and even caught on fire, and I know our constituents don’t want that either. It is for that very reason that we also 

need to hear not just from witnesses here today but also from representatives who are currently at the Environmental Protection 

Agency. This committee must meet its oversight responsibility and 

question the EPA about this issue and other issues—actions they 

are taking. The quality of the air we breathe and the water we 

drink is too important. This committee has a responsibility to keep 

the EPA accountable to the American people. 

Mr. Chairman, I ask for unanimous consent to enter into the 

record a letter signed by Members of the Science Committee requesting that Chairman Smith invite Administrator Pruitt to testify before our Committee as soon as possible, and in addition, I 

would like to enter into the record Chairman Smith’s response to 

the request, stating that a hearing request is underway. We appreciate that. 

I urge Chairman Smith, Chairman Biggs, and the EPA to schedule this hearing quickly. The American people have an ownership 

stake in their environment, and they deserve to know what the 

EPA and Administrator’s plans are—Administrator Pruitt’s plans 

are for the EPA. 

Thank you, Mr. Chairman, and without objection, I’d like to 

enter the letter and the report—executive summary into the record. 

Chairman BIGGS. Without objection. 

[The information appears in Appendix II.] 

Ms. BONAMICI. Thank you, and I yield back the balance of my 

time. 

[The prepared statement of Ms. Bonamici follows:] 
9 

OPENING STATEMENT 

Ranking Member Suzanne Bonamici (D-OR) 

of the Subcommittee on Environment 

House Committee on Science, Space, and Technology 

Subcommittee on Environment 

"The Future of WOTUS: nxamining the Role of States" 

November 29, 2017 

Mr. Chainnan, from Oregon's Willamette Valley to the Chesapeake Bay; Americans want the 

waters of the United States to be safeguarded from harmful pollutants. They want this protection 

because our national ecosystem is interconnected, and what happens upstream is going to 

influence what happens downstream, especially to drinking water. 

Clean water is essential for our survival, and humanity has been dealing with issues related to 

access to clean water since the dawn of civilization. The needs of individual states are far more 

similar than they are different. The Clean Water Act exists, in part, because there was a time 

when states had primary responsibility for keeping waters within their state clean and safe. 

Unfortunately, many of those stales were not able to meet that responsibility, and Americans 

watched as some of those waters became dirty and polluted, and others caught on tire. 

Back in 1972, amendments to the Clean Water Act redefined the waters covered under the Act to 

include "the waters of the United States, including the territmial seas." But court opinions 

addressing which bodies of water tit that definition have been inconsistent. The genesis of the 

Clean Water Rule comes from the 2006 U.S. Supreme Court case Rapanos v. United States, in 

which the Court did not reach a majority decision about what constitutes a water of the United 

States. The result of that decision was confusion. 

And the purpose of the rule is to minimize confusion by clatifying the jurisdiction of the Clean 

Water Act. 

After the Rapanos case but prior to the Rule, the EPA released a report titled, "Connectivity of 

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

Evidence." Mr. Chairman, I ask for unanimous consent to enter the executive summary of this 

report into the record. 

The report reviewed more than 1,200 publications from peer-reviewed scientific literature and 

the report itself went through two separate independent peer-reviews. The report drew tive major 

conclusions, which provided initial support for the Clean Water Rule. One conclusion was: 

'The scientific literature unequivocally demonstrates that streams, individually, or cumulatively, 

exert a strong influence on the integrity of downstream waters. All tributary streams, including 

perennial, intetmittent, and ephemeral streams, are physically, chemically, and biologically 

connected to downstream rivers ... " 

1 
10 

As Mr. Kopocis (Kah-poe-sis) explains in his testimony, before the Waters of the US rule was 

finalized in May of 2015, the EPA received more than I million public comments and held more 

than 400 public meetings. 

And though some suggest that, despite past performance, states, rather than the Environmental 

Protection Agency, should conserve America's waterways, watersheds, rivers, lakes, and 

streams. In response to such a suggestion in the Rapanos case, fanner Supreme Court Justice 

John Paul Stevens, said, "The fact that the States have the power and the interest does not 

necessarily mean that the Federal Government does not also have the power." 

l don't want to return to a time when our waters were dirty, polluted, and even caught on fire, 

and I know our constituents don't want that either. It is for that very reason that we also need to 

hear not just from the witnesses here today but also from representatives who arc currently at the 

EPA. This committee must meet its oversight responsibility and question the EPA about this 

issue and other actions they are taking. The quality of the air we breathe and the water we drink 

is too important. This committee has a responsibility to keep the EPA accountable to the 

American people. Mr. Chairman, I ask for unanimous consent to enter into the record a letter 

signed by members of the Science Committee requesting that Chairman Smith invite EPA 

Administrator Pruitt to testify before our Committee as soon as possible. In addition, I would like 

to enter into the record Chairman Smith's response to the request, stating that that a hearing 

request is underway. I urge Chairman Smith, Chairman Biggs, and the EPA to schedule this 

hearing quickly. The American people have an ownership stake in their enviromnent, and they 

deserve to know what Administrator Pruitt's plans arc for the EPA. 

Thank you. I yield back. 

2 
11 

Chairman BIGGS. I want to introduce our witnesses, and so let’s 

do that right now. Our first witness today is Mr. Wesley Mehl, 

Deputy Commissioner of the Arizona State Land Department. Mr. 

Mehl received his bachelor’s degree in political science from the 

University of Arizona and his law degree from Pepperdine University. He also received an LLM in real property law from the University of Miami. Glad to have you today. 

Our next witness is Mr. James Chilton, Jr., of Chilton Ranch. 

Mr. Chilton is a fifth-generation rancher and has received multiple 

awards, such as Rancher of the Year in 2002. He received his bachelor’s degree as well as master’s degrees in economics and political 

science from Arizona State University. Thank you, Mr. Chilton. 

Our third witness is Mr. Ken Kopocis, Adjunct Associate Professor at American University’s Washington College of Law. Mr. 

Kopocis previously served as the Deputy Assistant Administrator 

in the Office of Water at the U.S. Environmental Protection Agency. He received his bachelor’s degree from the University of Nebraska Omaha and his law degree from the Marshall-Wythe School 

of Law of the College of William and Mary. Thank you, Mr. 

Kopocis. 

And our last witness is Mr. Reed Hopper, Senior Attorney at the 

Pacific Legal Foundation. Mr. Hopper previously served as an Environmental Protection Officer and Hearing Officer in the U.S. 

Coast Guard. He received his bachelor’s degree from the University 

of California and his law degree from the University of the Pacific 

McGeorge School of Law. 

I now recognize Mr. Mehl for five minutes to present his testimony. And I’ll just remind all of you to be sure to turn on your 

microphone when you want to start. Thank you. 

TESTIMONY OF MR. WESLEY MEHL, 

DEPUTY COMMISSIONER, 

ARIZONA STATE LAND DEPARTMENT 

Mr. MEHL. Thank you, Mr. Chairman. Mr. Chairman and members of the committee, thank you for the opportunity to testify on 

behalf of the Arizona State Land Department. I am the Deputy 

Commissioner of the department. In 1915, the State formed the 

land department to manage 9.2 million acres of land that was 

given to us by the Federal Government to be held in trust for support of our public beneficiaries. Chiefly, this is our K–12 education 

system. 

The mandate of the department is to produce optimal revenue for 

our trust beneficiaries. To do this, we sell land; we lease land. 

There are 13 beneficiaries. 

If we could go to the next slide. 

[Slide.] 

So we have 9.2 million acres of trust land. You can see trust land 

identified on this map as blue. We’re spread throughout the State. 

Together, it’s 1.6 times larger than Maricopa County, which is the 

largest county in Arizona. 

The next slide, please. 

[Slide.] 
12 

We have 13 beneficiaries. As I said, the largest beneficiary is our 

K through 12 education system. We also have beneficiaries of our 

State universities. 

Next slide, please. 

[Slide.] 

This map represents the transactions we have done historically. 

These are sales and leases. We lease for mineral, agriculture, and 

grazing purposes and we sell. This revenue supports our trust 

beneficiaries. 

Next slide, please. 

[Slide.] 

As part of this mission, I’m here to discuss our experience in 

navigating section 404 of the Clean Water Act. And I think our 

frustrations with the rule can best be illustrated with an experience that we’ve had in permitting actions in an area of north Phoenix in an urban area, particularly a subdivision, master-planned 

community called Desert Ridge. In 1993, we sold land to a developer who master-planned this area, and it’s an area bordered by 

freeways, so the 101 freeway and the 51 freeway are an apex, and 

you can see that on this map. 

When the project was started, the first four or five subdivisions 

and developments were permitted under the EPA—or the Army 

Corps’ nationwide 404 permit, so each of these was allowed to proceed with—based on this recognition that minimal impacts were 

made to Waters of the United States. 

However, soon thereafter in the early 2000s the Corps came to 

the Land Department and said, ‘‘No longer are we going to allow 

development in this manner but, instead, we are going to require 

an individual permit for the entire master plan area of Desert 

Ridge.’’ 

You go to the next slide, please. 

[Slide.] 

So our first challenge with the rule has been the ambiguity with 

respect to what a project is under 404. So the Land Department 

doesn’t build anything and when—we rely on people we sell to to 

develop roadways, utility corridors, or commercial development. 

When we had to step in and get our permit, there were a number 

of challenges, and I’ll talk through those. 

The first challenge is determining jurisdiction. Regulations for 

404 have been ambiguous for a number of years. In the early 

2000s, the premise we received were based on some hydrology and 

it’s represented here. The picture on the left shows the jurisdictional delineations of 404 washes in this area. And you can see 

they form a web-like construct along the entirety of the property. 

The problem here for us is there really isn’t water present in this 

area. These are all channels that transport stormwater drainage, 

so it falls in the mountains and comes through this area, but these 

are not streams. They are simply temporary runs of stormwater. 

When you have a jurisdictional delineation, you translate that 

into permit with onsite mitigation. The picture on the right shows 

mitigation corridors in hatch blue. The major problem for the department has been developing under these onsite mitigation corridors. Desert Ridge is some of our most valuable land. It’s situated 

at the apex of these two freeways. To continue selling, we have to 
13 

be able to sell with affordable infrastructure. The connections between the corridors make infrastructure much more difficult. 

When Commissioner Atkins and I arrived—— 

Chairman BIGGS. Mr. Mehl, your five minutes has expired. If you 

can just real quickly sum up, and then we’ll put your statement 

into the record. 

Mr. MEHL. Yes, I apologize. 

In sum, the rule makes it hard to define jurisdiction. The washes 

in this area are—have no connection to downstream traditional waterways, and that’s demonstrated in a 2017 study that we just commissioned. A move toward the Administration’s executive order 

using Justice Scalia’s Rapanos rationale on the 404 rule would be 

beneficial to the Corps, to the regulated community, and to the 

State of Arizona. Thank you. 

[The prepared statement of Mr. Mehl follows:] 
14 

Written Statement of Testimony of Wesley P. Mehl 

Deputy Commissioner, Arizona State Land Department 

Committee on Science, Space and Technology 

Subcommittee on Environment 

U.S. House of Representatives 

The Arizona State Land Department and Section 404 Permitting 

November 29,2017 

Introduction 

My name is Wesley Mehl. I am the Deputy Commissioner of the Arizona State Land 

Department ("ASLD"). 1 As the manager of 9.2 million acres of State Trust Land, ASLD is the 

largest single non-federal landowner in Arizona, and as such has a strong interest in the 

administration and regulatory reach of the Section 404 permit program. 

Summary of Main Points 

The Section 404 permit, which is essentially a construction permit regulating land 

development, has proven to be the most burdensome and complicated permit requirement faced 

by ASLD. 

The Rule should be consistent with Congressional Intent: It is Arizona's view that the 

original intent of Congress was not to usc the Clean Water Act as a blanket regulation to cover 

all waters. Federal jurisdiction may extend beyond navigable waters to particular nonnavigable water bodies and wetlands, but only in cases where water features affect navigable 

waters and arc identifiable based on clear, objective characteristics. 

• The Rule Should Provide Clarity: The Executive Order on reviewing the WOTUS rule 

directs both EPA and the Department of the Army to consider interpreting the tem1 "navigable 

waters" in a manner consistent with Justice Scalia's opinion in Rapanos v. United States, 547 

U.S. 715 (2006). Two of the main tenets of this opinion are that WOTUS must be "relatively 

permanent waters", and that wetlands must have a "continuous surface connection" to a 

relatively permanent water to be considered a WOTUS. Arizona believes that relatively 

permanent waters in Arizona include perennial and seasonal waters. Seasonal waters include 

any waters that flow at any time during the year as a result of factors other than stom1 

flow. "Ephemeral" waters, i.e. waters that flow only in response to storm events, would not 

be included. Similarly, wetlands would only be considered a WOTUS if they have a 

continuous connection to a WOTUS, and the connection is at least seasonal. 

The ambiguity of the 404 rule, and the difficulty in applying the rule in the arid West, is clearly 

demonstrated in three existing 404 permit areas on ASLD Trust Land. The three permit areas, 

in urban infill areas of North Phoenix, have experienced significantly diminished demand as a 

result of complications arising from the permits: a significant loss of developable land 

1 On behalf of Arizona's Land Commissioner Lisa A. Atkins, we thank Robert Anderson, who represents ASLD on 

404 matters, for significanl assistance in the preparation of this written testimony. 
15 

(effectively 18-20%), severe complications arising from configuration problems presented by 

mandated on-site mitigation corridors, significantly increased infrastructure costs, 

disproportionate cost and complications arising from planting requirements. We estimate that 

the direct and indirect impact of these three permits alone will cost the State more than $700m, 

when accounting for loss of land, increased infrastructure costs, project delays and other 

impacts. 

All past iterations of the 404 rules have disproportionately affected arid climates, and m 

particular, those areas with alluvial fan conditions. 

The rules and guidance pertaining to "ordinary high water mark" are suited to perennial 

streams, and present significant ambiguity in the context of arid desert climates. What is an 

ordinary water mark for an ephemeral wash that runs less than 4% of the year, and is subject 

to change in course depending on rainfall patterns? In such a context, "bed and bank" analysis 

is misleading, and a significant nexus analysis can be economically unfeasible. 

• A clear rule that resolves ambiguity, including those ambiguities presented by the question of 

significant nexus would allow the United State Army Corps of Engineers (the "Corps") to 

fairly administer the program in an expeditious manner, and avoid significant costs to the 

regulated community and the public. 

Arizona appreciates the Environmental Protection Agency's ("EPA") recent push for 

cooperative federalism. Arizona believes that primacy on Section 404 would allow the State 

of Arizona to both improve 404 permit processing time for customers, and increase certainty 

and consistency in WOTUS determinations, thus improving environmental outcomes and 

minimizing regulatory uncertainty for businesses. 

ASLD enjoys a good relationship with the local Corps office. ASLD appreciates their 

professionalism, and has great respect for the staff with whom we have worked. ASLD also 

believes that the Corps would benefit greatly from a change in the Rule consistent with Justice 

Scalia's opinion in Rapanos. 

Background 

A Section 404 permit is a federal permit required pursuant to Section 404 of the Clean 

Water Act, 33 U.S.C. §1344, for discharging "dredged or fill material" to "navigable waters." 

Section 404 was enacted in 1972 as part of comprehensive amendments to the Federal Water 

Pollution Control Act, commonly referred to as the Clean Water Act. The Act included two permit 

programs typically encountered in land development and affecting how lands administered by 

ASLD are developed: Section 402, or the National Pollutant Discharge Elimination System 

("NPDES") program, id. at § 1342, which applies to pollutant discharges (other than dredge and 

fill) to regulated waters and is administered by the EPA, and Section 404, which requires a permit 

discharge or"dredge or fill material" (a type of pollutant by law, but generally composed oflocally 

available dirt, concrete and steel) into regulated waters and is administered by the Corps with EPA 

2 
16 

oversight. !d. at §§ 1344.2 The Section 404 permit, which is essentially a construction permit 

regulating land development, has proven to be the most burdensome and complicated permit 

requirement faced by us. Before explaining the challenges we have faced with the permit program, 

it is helpful to understand ASLD's role as a landowner, and the constitutional and statutory 

limitations under which we operate. 

Arizona State Trust Lands 

ASLD, like its sister agencies in other states in the West, is in a unique position among 

land owners in that it is a state agency which functions as the Trustee of lands deeded to the State 

of Arizona at Statehood by the Federal Government in trust for public institutions in the State, 

including our K-12 system, and state universities. 

The United States Congress, to encourage and support an expanding nation, entrusted the 

new territories and states with millions of acres of land to be managed specifically to provide 

funding for public education and other state institutions. Beginning in 1850 through 1912, when 

Arizona joined the Union, Congress granted in trust to the State of Arizona approximately 

10,790,000 acres of land to support the designated public purposes, including devoting sections 2, 

16, 32, and 36 in each township to the common schools (K-12). 

The Arizona Legislature created the Arizona State Land Department in 1915 and 

designated the State Land Commissioner to manage the land in the best interest of the beneficiaries 

and to maximize long-term revenue to the trust. All uses of the land must benefit the trust, 

distinguishing its use from that of public land, such as state parks or national forests. Not only did 

Congress grant the lands in trust, but Congress also placed specific restrictions on transactions, 

including requiring sale and long-tcrn1 lease of trust land at public auction for no less than 

appraised true value. 

In this role, ASLD manages over 9.2 million acres of Trust land and as such represents the 

largest single non-federal landowner in the State. The lands involved were transferred to the State 

of Arizona when Arizona was admitted as a State pursuant to the Arizona-New Mexico Enabling 

Act (the "Enabling Act"). ASLD accordingly is constrained by statutory and constitutional 

mandates which do not affect other land owners. The mandates include the Enabling Act, the 

Arizona Constitution, and Title 37 of the Arizona Revised Statutes, the latter two of which are 

intended to implement the Enabling Act restrictions. The ovcrarching obligation imposed on 

ASLD is to manage State Tmst lands for their "highest and best usc" and to maximize the return 

to its respective public beneficiaries. 

In exercising this obligation, ASLD is subject to a number of constraints. Probably the 

most obvious is that ASLD must deal with the Tmst lands given to it. It is not free to look at the 

open market for land, but instead must try to maximize the revenues it can obtain from the specific 

lands given to it under the Enabling Act. Further, under the way the Trust was set up, each piece 

of Tmst land has specific beneficiaries (i.e. different school districts, universities, etc.), so that it 

2 Both the 404 and NPDES programs allow for states to assume authority to issue permits under those programs; 

virtually all states have done so under the NPDES program while only two-- New Jersey and Michigan- have assumed 

the 404 program. 

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17 

is not generally permissible under the ASLD's trust obligations to give up rights on one piece of 

Trust land for the benefit of another piece of Trust land. As a result, the ASLD generally has less 

flexibility and financial room to maneuver than other land-owners. 

"Navigable waters" on State Trust Lands, and the Desert Ridge 404 Permits 

While one might think that "navigable waters" as defined by the Clean Water Act would 

be a rare feature in the Arid West, the reverse has been the case. The Clean Water Act defines 

"navigable waters" as "waters of the United States". 33 U.S.C. §502(7). EPA and the Corps 

adopted a regulatory definition of "waters of the United States that includes essentially any 

wetlands or surface water which affects interstate commerce. 33 C.F.R. § 328.3(a). The most 

controversial types of waters nationally are wetlands, but other types of waters are included too 

such as lakes, rivers, streams (including intermittent streams), playa lakes or natural ponds, and 

impoundments and tributaries of waters otherwise defined as waters of the U.S. I d. The validity 

of this rule has been called into question twice by the U.S. Supreme Court and no longer includes 

isolated waters or "non-relatively permanent waters" that have no "significant nexus" to 

"traditional" navigable waters. See Solid Waste Agency of Northern Cook County v. U.S. Army 

Corps o.f Engineers, 531 U.S. 675 (200l)("SWANCC'); Rapanos v. U.S., 126 S. Ct. 2208 (2006); 

"CWA Guidance to Implement the U.S. Supreme Court Decision for the Rapanos and Carabell 

Cases" (2008). 

For State Trust lands in Arizona, the most common category of "waters" encountered are 

dry washes or arroyos. These features are drainage areas with "ephemeral" flow, i.e., they flow 

only in direct response to rainfall and are otherwise dry the vast majority of the year. They have 

been regulated in the past under the Section 404 permit program because they were deemed to be 

"tributaries" of "navigable waters" and therefore considered to have a sufficient connection to 

interstate commerce to regulate them at the federal level. The presumption was that all ephemeral 

washes were regulated, and that the burden of proof fell on the land owner to show that such 

ephemeral flows were isolated waters rather than tributaries with a significant nexus to navigable 

waters, a very costly enterprise. 

Drainage features such as this arc ubiquitous across the landscape in desert areas. They 

are particularly problematic where "alluvial fans" form. These drainage features found on 

thousands of acres of State Trust land arc areas where high velocity flows coming off mountain 

ranges create unstable channels that shift and change with major storm events. The fans can form 

a web like network of channels that make development challenging without major construction 

improvements. A notable problem with such alluvial systems is that many of the channels result 

from major storm events that occur only on a 20, 50 or I 00 year basis. However, because of how 

these ephemeral channels form it is difficult to assess which channels represent ordinary path of 

rainfall versus isolated waters from infrequent storms that arc outside of the rule. At present, ASLD 

is actively engaged in entitlement or marketing on at least three major project areas with active 

alluvial fan systems. The mlc, as it stands, interjects risk and ambiguity into each of these efforts. 

One of the major challenges we face is determining the limit of these washes. Under Corps 

regulations, the limit of jurisdiction for tributaries is the "ordinary high water mark" ("OliWM"), 

which is defined as "that line on the shore established by the fluctuations of water and indicated 

by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in 

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the character of soil, destruction of terrestrial vegetation, the presence oflitter and debris, or other 

appropriate means that consider the characteristics of the surrounding areas." 33 C.F.R. § 328.3(e). 

This definition is borrowed from the Rivers and Harbors Act and describes the lateral limit of 

perennial streams, where the near constant presence of water forms a clear line on the bank. In 

ephemeral systems, which are characterized by a lack of water and generally have very "flashy" 

flows, a clear OHWM like that seen on perennial systems does not exist. Nevertheless, the Corps 

and EPA use the presence or absence of an OHWM as both the lateral limit of jurisdiction and the 

upstream limit ofjurisdiction, i.e., Clean Water Act jurisdiction extends upstream until the OHWM 

is no longer "perceptible". At the top of the watershed this is a very difficult determination, with 

no clear beginning or end of federal regulatory control. In practice, prior to Rapanos, the Corps 

generally considered dry washes as small as two to three feet in width to be jurisdictional. Even 

post Rapanos, the availability of hydrologic data is uncertain, and the cost of obtaining and 

analyzing that data is significant, and represents a significant burden to moving potential projects 

forward. Often a project will face a cost-benefit decision on whether to cede jurisdiction to expedite 

a project even where there is clear evidence suggesting that a significant nexus may not exist. The 

alternative, pursuing studies that demonstrate a lack of jurisdiction, is very time consuming, and 

uncertain, especially given the ambiguity of the Rule. 

ASLD has direct experience with such permitting standards, as it has three existing permits 

in an urban area of North Phoenix under which very small ephemeral washes were designated as 

Waters of the US. Under those permits, which cover an alluvial fan system known as the Rawhide 

Wash watershed, ASLD was subject to 6-1 on-site mitigation in the form of protected wash 

corridors. The resulting mitigation areas present significant challenges to land use and 

infrastructure. Implementation of guidance issued after the Rapanos decision has led to some 

regulatory relief. Many of the washes lack the "significant nexus" to downstream traditional 

navigable waters that would justifY federal regulation under the Rapanos decision. The challenge 

has been demonstrating this lack of nexus to the satisfaction of the Corps. Obtaining a 

determination on large land holdings such as State Trust lands is a challenge to efficient and timely 

development of land held by ASLD, impacting the ability of ASLD to obtain maximum return to 

the Trust. Many smaller landowners elect to concede jurisdiction, even where a lack of jurisdiction 

seems clear, to avoid the long wait and therefore risk associated with pursuing a finding of no 

significant nexus. However, for a seller such as ASLD, finding a buyer for a large tract of land is 

difficult where 404 issues are not resolved prior to a sale. When a buyer is found, it is generally at 

a price significantly discounted from what fair market value would have been without 404 risk. 

To illustrate the impact of 404 on the Trust, we can look to ASLD's prime current 

inventory. The Trust owns approximately 12,791 acres in three master planned areas in urban 

North Phoenix called Desert Ridge, Paradise Ridge and Azara. ASLD obtained a 404 Permit for 

each of these areas in the early-to-mid 2000s. The graphics in Appendix I and Appendix 2 illustrate 

this land area, where mountain ranges direct storm water discharge through a wide area a classic 

alluvial fan watershed. In this case, there is no source of water other than rain, so in the Phoenix 

climate this watershed is rarely active. 

In the early 2000s the master planned area of Desert Ridge was in the process of 

development, and a number of projects in the master plan were in the pipeline. The Army Corps 

had processed the first three or four of these projects under so-called Nationwide Permits. At some 

point there was a change in approach by the Corps, and ASLD was informed that further work 

5 
19 

would require an Individual Penni! for the remainder of the Desert Ridge area. As market demand 

was extremely high, ASLD proceeded to apply for a penni!. The result serves as a cautionary talc, 

both for ASLD and for those who study the impacts of the Section 404. 

The first, and primary problem with these penn it areas is the rationale for inclusion under 

Section 404 regulation. The watershed is driven only by stonn water runoff, and flows arc very 

infrequent owing to the arid desert climate. The nearest traditional navigable body of water is 

approximately 90 miles away, as water flows. Sec Appendix 3. The watershed is also interrupted 

by several freeways, the Central Arizona Project canal (which is protected by a dyke system to 

prevent water damage to the canal system) and almost the entirety of urban Phoenix. All of these 

interruptions detain flows, and suggest a lack of physical connection between the subject 

watershed and traditional navigable waters. ASLD might have challenged jurisdiction based on 

these factors, but the penn its predated Rapanos, and there was a lack ofhydrologic data at the time 

to fully support possible arguments. A recent flood control study of the watershed revealed flow 

data that helped convince ASLD to reexamine these pennit areas. (See flow data in Appendix 1.) 

The resulting study, completed earlier this year, concludes that this watershed has no physical 

connection to traditional navigable waters, much less an effect on the biological, chemical or 

physical traits of such water that would be required for jurisdiction under Rapanos. However, 

many landowners in this area have pursued 404 pcnnits, and may continue pursuing 404 pennits, 

as the ambiguity in the rule, and the high cost of a significant nexus analysis, make it difficult to 

proceed with often time-sensitive developments. 

Second, because of the alluvial fan system, there are many existing stonn runoff channels 

in the pennitted areas. Without flow data, it is difficult to assess potential chemical, biological or 

physical effects on downstream waters. In many cases, assuming a physical connection to 

regulated water exists, the difficulty will lie in determining which channels are jurisdictional, and 

which are not. In the case of the Desert Ridge areas, a lack of flow data contributed to over 

designation when the original pennits were obtained. ASLD's 2017 study showed that even if you 

assumed a physical connection, the jurisdictional delineation for these pcnnit areas were overdesignated by 50% or more. Some of this is likely the result of techniques, as our 2017 effort 

allocated significant resources for ground truthing, whereas the earlier efforts relied almost 

exclusively on conclusions drawn from aerial photographs. 

Third, a major cost associated with the pennits are the mitigation requirements. The three 

404 Permits required on-site mitigation amounting to approximately 12% of the total land mass, 

or 1,685 of the totall2,791 acres within Desert Ridge, Paradise Ridge and Azara. Not only is there 

a loss of usable land associated with the corridors themselves, there is also a substantial loss in 

land attributable to the configuration challenges presented by the on-site mitigation corridors, and 

their effect on land planning. As a result, the effective mitigation requirement is likely 20% or 

more in these penni! areas. See Appendix 4 as illustrative of this problem. The various 

intersections and paths of these on-site mitigation corridors, which were required to follow existing 

washes, were often incompatible with efficient and economical land planning, and caused a greater 

loss of net-usable land. Those same configuration problems also greatly compounded 

infrastructure cost. 

Finally, another example of how the 404 permitting program is not gcnnanc to the arid 

southwest, and which relates to our mitigation requirements, is found in the "Pennittee6 
20 

Responsible" or onsite mitigation that was originally the sole method of mitigation under our 404 

permits. Under this requirement, a developer was required to plant new trees and landscape 

materials to replace those removed by development. The consequence, given the lack of water in 

the system, was that it required permittees to irrigate the wash corridors to provide for sufficient 

water to the planted materials in order to achieve the required 80% survival rate after three years. 

This attempt to create a riparian environment in the dry desert uplands, has required extensive 

irrigation (of dubious environmental benefit in the dry desert) and has failed in many cases, as 

these so-called washes simply lack the water to meet Corps objectives. Because of this record, the 

Corps recently modified our pennits to allow developers to purchase off~sitc mitigation credits 

from In-Lieu Fee providers. However, the practical effect of this method is that developers are 

now paying $80,000 per acre in mitigation bank expenses to replace dry upland washes with 

dissimilar wetlands in other areas ofthe Arizona. See Appendix 5, an illustration of Desert Ridge 

wash versus In-Lieu Mitigation Bank area in Arizona. 

Desert Ridge has slowly developed since 1993, under a number of 404 permits issued from 

the mid-nineties to the mid-2000s. Other projects in the same watershed have also been permitted 

during and after this period, with the most recent in 2015. See Appendix 6, which shows 

significant difference in outcome on land adjacent to Desert Ridge. The outcomes have been 

inconsistent, and to my knowledge, no project has been given a determination that the Corps lacked 

jurisdiction. Despite this fact, ASLD's 2017 sh1dy showed that this watershed has no physical 

connection to traditional navigable waters. Earlier this year ASLD submitted this study to the 

Army Corps, and is awaiting determination from the Corps on jurisdiction. We believe that it is 

the high cost of analysis, including difficulty in obtaining reliable data, and most importantly, the 

ambiguity that has persisted in the Rule over this period that has caused this difficulty. 

Section 404 Permitting Requirements and State Trust Lands 

Section 404 pern1it requirements, when they apply to development of State Trust land, 

substantially affect the value of that land and its developability. There arc multiple challenges 

with permitting State Trust lands, and these challenges directly and appreciably impact the rehtm 

to the Trust Beneficiaries. 

The first challenge that ASLD faces is the need to resolve Section 404 permitting issues 

before offering land for auction. Section 404 pennitting from inception to permit issuance, can 

take several years to complete, with substantial uncertainty about the nature and scope of allowable 

development under an issued permit. While in some cases ASLD sells land without addressing 

Section 404, in many instances a far higher price for the land can be obtained at public auction if 

ASLD has first obtained a determination from the Corps regarding whether waters of the US arc 

present on site and, if so, obtaining a pcrn1it for development of the land. The regulatory process 

is time consuming and expensive, and ASLD often lacks the resources to obtain a permit (or a 

determination that a pcrn1it is not needed) in advance of public auction. 

As to the permit process itself, the major regulatory obstacle is the requirement to conduct 

an alternatives analysis in order to secure a permit. Section 404 requires that a permit comply with 

environmental guidelines developed by EPA pursuant to Section 404(b )(I) of the Act. The central 

requirement of the guidelines is the requirement to evaluate alternatives to the proposed discharge 

and only penni! the least environmentally damaging practicable alternative that accomplishes the 

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project purpose. 40 C.F.R. § 230.10(a). The guidelines further provide that "an alternative is 

practicable if it is available and capable ofbeing done after taking into consideration cost, existing 

technology, and logistics in light of overall project purposes." !d. In practice, this requirement 

pushes applicants to avoid ephemeral washes as much as possible, especially as mitigation costs 

can greatly exceed land value on a par basis in certain areas. This avoidance requirement 

significantly impedes efficient land development, resulting in substantial loss in value and, 

ironically, encourages development of land as low density residential which some would 

characterize as "sprawl", but in any event results in much lower returns to the Trust. 

The guidelines include an obligation to look at offsitc alternatives to accomplishing the 

project purpose: "If it is otherwise a practicable alternative, an area not presently owned by the 

applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the 

basic purpose of the proposed activity may be considered." Jd. This obligation is generally 

imposed on applicants when they "entered the market". The idea is that an applicant should avoid 

purchasing and trying to develop land that has significant aquatic resources. Since ASLD never 

"entered the market", but rather has a mandate to manage the lands given to it, this requirement 

makes no sense. If ASLD is forced to develop an alternative site, then the original site would not 

be developed and its value to the public education trusts marginalized. 

The guidelines also require the applicant to evaluate locations to the proposed project that 

do not involve any discharge to jurisdictional waters. !d. As discussed above, complete avoidance 

is often impossible due to the ubiquitous nature of ephemeral washes on State Trust lands. 

One of the most difficult aspects of the alternatives analysis requirement is setting the 

project purpose. In the context of permitting ephemeral washes, the project purpose used by the 

Corps tends to be more generic than the applicant's true purpose. For State Trust lands, ASLD's 

true purpose is in obtaining the highest and best use for the property and maximizing value to the 

Trust. The Corps, however, looks at the specific construction plans and then evaluates whether 

that type of project (industrial, residential, etc.) can be accomplished while avoiding as many 

washes as possible. 

In the context of Desert Ridge, a pressing question is what is a project? As discussed, Desert 

Ridge began development through nationwide permits issued to individual development projects 

after sales by ASLD. This made sense, as ASLD did not plan Desert Ridge, and ASLD does not 

build any portion of development, from roads to buildings. At that time the Corps interpreted a 

"project" to be the entirety of the Desert Ridge master-planned area, as it was zoned and entitled 

by the City of Phoenix as a whole. However, the zoning plan was flexible, anticipated a 20-plus 

year buildout, and was dependent on other builders and developers to construct improvements. 

There were no construction plans to base a 404 permit on when ASLD was forced to obtain its 

Permits. Designing on-site mitigation for a pennit without a clear idea of what future 

improvements and infrastructure would require is one reason why the Desert Ridge 404 experience 

has been so difficult. 

A related prohlcm was the Corps interpretation of project purpose. ASLD's Trust mission 

is to optimize revenue to Trust Beneficiaries. Generally, however, a project purpose will relate to 

an actual construction project, not a mission. As ASLD had no construction project to base its 

pern1it on, there was an inability to point to a project purpose upon which ASLD could satisfy 

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various mitigation alternatives analysis. This contributed to difficulties with the established onsite mitigation corridors, which have proven to be a significant burden to further development in 

the area based on increased infrastructure costs, and land planning inefficiencies. 

Another significant regulatory obstacle is the need to comply with mitigation obligations 

imposed by the guidelines and Corps regulations. Broadly speaking, mitigation generally refers 

to efforts by the permit applicant to reduce or compensate for adverse environmental consequences 

of the proposed project. Agency policy speaks in terms of a mitigation "sequence" of avoidance, 

minimization and compensation. See Memorandum of Agreement between the Department of the 

Army and the Environmental Protection Agency Concerning The Determination of Mitigation 

Under the Clean Water Act Section 404 (b)(l) Guidelines (Feb. 6, 1990)("Mitigation MOA"). 

Basically, this means that in review of a permit application, the Corps must first ensure that 

jurisdictional waters are avoided to the maximum extent practicable. This is generally 

accomplished through the alternatives analysis requirement. Next, the impact of discharges that 

are allowed must be minimized. This can be done in a number of ways including ensuring that the 

material discharged will not cause a violation of water quality standards (e.g., use clean fill), 

ensuring that operation of the construction project will be done in a manner that minimizes other 

discharges, and ensuring that the fill that is discharged is secured so that it docs not wash away. 

See generally 40 C.F.R. Part 230 H. Finally, compensation is usually required for the loss of 

waters occasioned by the discharge. This is done to implement the general national policy of "no 

net loss" of aquatic functions and values, although it does not have to be accomplished on each 

and every application. 33 C.F.R. Part 332; 40 C.F.R. Part 230, Subpart J. 

Compensatory mitigation is one of the most challenging parts of a 404 permit application 

for large projects. Compensating for lost functions and values is generally accomplished through 

one or a combination of: (a) restoration of degraded aquatic areas; (b) enhancement of existing 

aquatic areas (basically raising the functions of an area that is already aquatic but not degraded) 

(c) establishment (also called "creation) of new aquatic areas; and (d) preservation of existing 

resources. 33 C.F.R. §332(a)(2).3 Each of these methods can be executed through three basic 

approaches which we list in order of preference (most preferred to least preferred): (a) purchase 

of credits in a mitigation bank (i.e., a facility that has restored or created wetlands or other aquatic 

areas in advance); (b) payment of an in lieu fee to an entity that will use the money to restore or 

create wetlands or other aquatic resources; or (c) development and implementation of a "permitteeresponsible" mitigation plan. That plan could be accomplished onsite or offsite (preferably within 

the same watershed) and could be in kind (addressing the same kind of aquatic resources impacted, 

which is preferred) or in some circumstances, out-of-kind (particularly of the resources that arc 

being addressed through the plan are of higher function or value than the resources impacted.) !d., 

§332(b). 

These compensatory requirements adversely impact development on State Trust lands in a 

number of ways. First, as discussed above, the cost of mitigation is high and obviously directly 

impacts the value of land subject to mitigation requirements. Second, as of now, Arizona has no 

mitigation banks and relatively few in lieu fee projects. Therefore in many instances, permit 

applicants are required to develop their own mitigation plans. This has been done on State Trust 

3 There are parallel cites to the Corps compensatory mitigation regulations in the EPA 404(b)(l) Guidelines at 40 

C.F.R. Part 230, Subpart J. 

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lands permitted by the Corps in the past, but has resulted in substantial land set asides that reduce 

overall land values and impose maintenance burdens on potential purchasers. Furthermore, 

development of permittee specific mitigation plans arc a significant expense. All in all, 

compensatory mitigation significantly devalues land and is a difficult regulatory obligation to 

meet. 

Primacy 

The State of Arizona is currently investigating obtaining CWA Section 404 primacy. 

Program authorization for CW A § 404 will allow Arizona to improve permit processing time for 

customers, improve coordination between the dredge and fill permit program and the Arizona 

Section 402 permit program and increase certainty and consistency in WOTUS determinations, 

thus minimizing regulatory uncertainty for businesses. Even with these improvements, primacy 

docs not offer relief for the concerns elaborated on above. 

In ASLD's view, process improvement will continue to be difficult without substantial 

improvement in the Rule. However, primacy will give Arizona a say in how it prioritizes 

processing such permits, and will move regulatory control closer to the regulated community. A 

frustration with the current system is that the State has no control over a permitting process that 

can significantly affect economic development in the State. To ASLD this is not because of Corps 

staff, but is a result of divergent interests oflhe State and Federal governments. Desert Ridge is an 

illustration of how economic progress can stall, in part because of the 404 program. Assuming a 

clear 404 were to be put in place, primacy would allow Arizona to prioritize projects like Desert 

Ridge that arc recognized to have a probable impact for the State. 

Conclusion 

Section 404 pern1itting is a major regulatory consideration affecting the value of State Tmst 

lands. The Desert Ridge area is an illustration of the effects of ambiguity in regulation under 

Section 404. Regulation of small ephemeral washes in particular, substantially diminish the value 

and marketability of State Tmst lands, with little and oftentimes no discemable environmental 

benefit. ASLD supports protection and conservation of valuable aquatic resources in the State, 

but believes that extending Section 404 permitting requirements to small ephemeral washes 

imposes far too great a burden. In our view there would be tremendous benefit from a clear 404 

mle that minimizes unknown risks, and gives proper consideration of the unique character of arid 

desert lands. While the guidance in Rapanos has improved the picture under existing regulation, 

the burden of significant nexus analysis often puts that benefit out of reach, and has a tremendous 

impact on project timelines. An improved and clear Rule would assist both the regulated 

community and the agencies involved in permitting. 

Mr. Chairman and Members of the Committee, thank you for the opportunity to testifY on 

behalf of Arizona and the Arizona State Land Department. I am happy to answer any questions 

that you might have, and pleased to provide any additional information you may require. 

10 
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Appendix 1. This photo depicts maximum storm water flow rates from recent hydrologic studies 

on the Pinacle Peak West ADMS. This study, which was performed for flood control purposes, 

provided ASLD with data to pursue a significant nexus analysis of the Rawhide Wash Watershed 

in Desert Ridge, Paradise Ridge and Azara. As you can sec, flow rates vary widely, and there arc 

many minor discharges in this alluvial fan system, which present the most significant challenge 

for ASLD. 

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Appendix 2. This graphic depicts the on-site mitigation corridors required under the respective 

404 permits for Desert Ridge, Paradise Ridge and Azara. The configuration of these corridors 

present tremendous obstacles for development in this urban area of North Phoenix, and have 

diminished the value of the underlying Trust land. 

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Appendix 3. This graphic illustrates the distance from the Desert Ridge (Rawhide) watershed to 

the nearest traditional navigable water (Powers Butte). The water is interrupted by the 101 

Freeway, the CAP canal, and numerous gravel detention areas. ASLD's 2017 study concluded 

there is no physical connection between the Desert Ridge (Rawhide) watershed and any traditional 

navigable water. 

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Appendix 4. This graphic illustrates the configuration problems that are common with the Desert 

Ridge, Paradise Ridge and Azara 404 permits. The blue hatched areas arc on-site mitigation 

corridors. The development on the bottom left of the graphic is the Mayo Hospital. A bio-science 

park has long been planned for adjacent land, but a number of factors have delayed progress, high 

among those, the very significant loss of land between the mitigation corridors. The Northeast 

corner of 56'11 Street and Mayo Boulevard should provide an ideal entry area for the bio-science 

campus, but is undevelopable as a result of the corridors. This is a sparse desert area, with very 

infrequent ston11 water runoff 

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Appendix 5. These pictures show the difference between several representative washes in the 

ASLD permit areas in North Phoenix, and typical 404 in-lieu fee mitigation properties. 

15 

An example of an upland desert 

ephemeral wash in Desert Ridge. 

A second example of an upland 

desert ephemeral wash in Desert 

Ridge. 

An example of an existing 404 InLieu Fcc Mitigation property in 

Arizona 
29 

Appendix 6. The graphic on the bottom left shows the jurisdictional delineations performed for 

permitting Desert Ridge, Paradise Ridge and Azara. The top left graphic shows a similar 

delineation made in 2006 as part of ASLD's permit work. The top right graphic shows the same 

piece ofland, delineated in 2015 by a subsequent purchaser. The location of the land is shown by 

the red arrow, and is directly adjacent to Desert Ridge. Note the significant difference in outcome. 

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Chairman BIGGS. Thank you, Mr. Mehl. 

Mr. Chilton. 

TESTIMONY OF MR. JAMES K. CHILTON JR., 

RANCHER, CHILTON RANCH 

Mr. CHILTON. Chairman Biggs and distinguished Committee 

Members, thank you for having me today. My name is Jim Chilton, 

and I’m a fifth-generation Arizona rancher. Our ranch is adjacent 

to the town of Arivaca and continues south to the international 

boundary with Mexico. We’ve been in the cattle business in Arizona 

for 127 years. Our family all came from Texas, so I’m happy to see 

Texans here. 

We are thankful for the 2015 Waters of the United States rule 

that has been proposed to be withdrawn. Our experience convinces 

us that it was an unjustifiable overreach by the Environmental 

Protection Agency and the Corps of Engineers. It represented a federal power grab not supported by the Clean Water Act or the Constitution. 

For ranches in the Western United States, a requirement to obtain a Corps of Engineers section 404 permit or other permit is 

time-consuming and very expensive. The map on the monitor 

shows Arizona, and the red X is where I wanted to put a road 

across a dry wash. The dark line leading north marks the end of 

the Brawley Wash with no connection to the Santa Cruz River, and 

the end of the dry Santa Cruz River that has no connection to a 

navigable river. The dark line on the left represents the lower Gila 

River. These are all dry riverbeds, not streams of flowing water. 

In the 1990s, I had to retain consultants and an attorney in an 

effort to comply with the requirements of Section 404 to put a 

small dirt road across a dry wash. That wash only carries water 

briefly during occasional rainstorms. It connects with the Brawley 

Wash about 10 miles west of my proposed road crossing. The dry 

Brawley Wash spreads out into the desert 70 miles north from the 

wash where I needed a ranch road. The wash is not even connected 

to the Santa Cruz River. The dry Santa Cruz riverbed vanishes as 

it spreads out like fingers in the desert 68 miles south of the usually dry Gila River. The Gila River extends another 100 miles or 

so across the desert to the Colorado River, which is the closest 

year-round navigable water. And it’s 265 miles from the spot where 

I wanted to cross the dry wash. It is laughable to think that a 

desert wash is navigable in any way. 

My second experience was before the Supreme Court decision on 

Rapanos. I wanted to improve a small dirt road on my private 

property and place a culvert in the bottom of a wash on that road. 

You’ll see on the monitor the wash and you’ll see how steep it was. 

I used to have to drive down into the wash and up over it on my 

private land. However, I was told by my environmental consultant, 

I paid good money for that, it was a water of the United States. 

Well, excitedly, I read the Rapanos decision several years later 

after I had abandoned the dry wash road. I decided it’s easier to 

drive down and up than hire attorneys and consultants to go 

through the section 404 process. 

However, I abandoned the project, and after reading Rapanos, I 

said, ’’Ah, it doesn’t have a significant impact to the Colorado River 
31 

265 miles away,’’ so I put in this bridge. Well, I might go to jail 

now if I did it again. 

In conclusion, the 2015 rule would allow the EPA and the Corps 

to trump States’ rights to manage intrastate waterways and even 

dry washes. Any future rule should recognize the authority of State 

and local governments to make land use and water decisions. It is 

our position that the intrastate rivers such as the Santa Cruz in 

southern Arizona should be regulated by the State and counties, 

not the federal government. Any new WOTUS rule should minimize adverse impacts on farmers and ranchers and other small 

businesses, and it must be designed to reduce the potential for 

abuse through bureaucrats sitting around and expanding the interpretation. 

Please refer to my written testimony for precise recommendations of the National Cattlemen’s Beef Association and the Public 

Lands Council. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Chilton follows:] 
32 

Statement on behalf of the 

NATIONAL CATTLEMEN'S BEEF ASSOCIATION 

& 

PUBLIC LANDS COUNCIL 

On 

The Future ofWOTUS: Examining the Role ofthe States 

Submitted to the 

Subcommittee on Environment 

The Honorable Andy Biggs, Chairman 

House Committee on Science, Space, and Technology 

The Honorable Lamar Smith, Chairman 

By 

Mr. Jim Chilton, Chilton Ranch LLC 

November 29, 2017 

National Cattlemen's 

Beef Association 
33 

Testimony before the House Subcommittee on Environment, U.S. House of Representatives 

James K. Chilton, Jr. 

11-29-2017 

My name is Jim Chilton and I am a 5'h generation rancher from Arivaca, Arizona. Arivaca is 

approximately 55 miles southwest of Tucson, Arizona. Our 50,000-acre ranch is adjacent to the 

town of Arivaca and continues south to the international border with Mexico. The ranch 

includes private property, state trust lands and three federal grazing permits within the Coronado 

National Forest. I am very proud of my wife Sue Chilton, my two sons, my partner (my brother) 

and ancestors. The entire family is blessed to be able to live preserving our western ranching 

customs, culture, and heritage dating back to pioneering ancestors who entered Arizona Territory 

in the late 1800's. We have been in the cattle business in Arizona for about 127 years and have a 

long-term view of the necessity to be excellent stewards of the grasslands we respectfully 

manage. 

2015 Waters of the United States Rule 

We are thankful and appreciative that the Waters of the United States Rule, 80 Fed. Reg. 37,054 

(June 29, 2015) has been proposed to be withdrawn. Our experience convinces us that it was an 

unjustifiable over-reach by the Environmental Protection Agency (EPA) and the Corps of 

Engineers (Corps). It represented to us a federal agency power grab not supportable by either the 

Clean Water Act or the US Constitution's grant of authority to the federal government over 

genuinely navigable waters. 

The 2015 Rule, in my opinion, unlawfully burdened my ranching operation since I could not 

determine whether I would be in compliance or out of compliance on any necessary ranch 

improvement involving any of the typical Southern Arizona dry washes on my ranch, due to the 

vagueness of the Rule. The possibility that features like small dry washes on Chilton Ranch 

could be treated as waters of the United States (WOTUS) created uncertainty about whether and 

how Chilton Ranch could use its private land and what regulatory requirements would apply to 

particular uses. 

United States Supreme Court Rapanos Decision 

A new rule must be drafted by the Environmental Protection Agency and the Corps of Engineers 

that follows the meaning and spirit of the Supreme Court Rapanos Decision (Rapanos, 447 U.S. 

at 719 (plurality opinion) and clearly adheres to what the public and an agricultural producer can 

see is really a navigable waterway. 

My Neighbors and I have No Navigable Streams Nor any Nexus to a Na\<igable Stream 

As is the case for most ranches in the Western United States, a requirement to obtain a Corps Section 

404 permit or other permits for routine work in a desert grassland is totally irrationaL There are no 

navigable streams for an estimated 265 miles from my ranch. More specifically, the following are 

examples of my experience with the expensive, time consuming and burdensome Section 404 

permitting process as it was fmmerly applied. These experiences underpin my hope that a future rule 

will adhere to the U.S. Constitution and Rapanos Decision. 

2 
34 

Abandoned 404 Project 

During the late 1990s, prior to the Rapanos Decision, I had to retain environmental 

consultants and an attorney in an effort to comply with requirements imposed to obtain a permit to 

put a small dirt road across a dry wash. That wash only carries water briefly during occasional 

summer rainstorms. My environmental consultants believed, at that point in time, building a small 

dirt ranch road across the wash was subject to the the 1972 Clean Water Act regulations. It is 

laughable or enough to provoke anger, to think of this desert wash as a "navigable" water of the 

United States. No one could float anything-not even a leaf-from my land to the nearest navigable 

river because the supposed connections do not connect and are almost always dry and are never, ever 

navigable. 

The dry wash in question connects with the Brawley dry wash about ten miles west of my proposed 

road crossing. The Brawley Wash ends and any ephemeral water it ever canics spreads out into the 

desert approximately 70 miles north from the wash where I needed a ranch road. The Brawley Wash 

is not connected to the next feature: the dry Santa Cruz River. The dry Santa Cruz River bed virtually 

vanishes as it spreads out like fingers in the desert 68 miles detached from the usually dry Gila River. 

The intermittent and ephemeral Gila River bed extends through sandy, dry terrain until it reaches the 

Colorado River, another hundred or so miles across the desert from the city of Gila Bend. The 

Colorado River is, of course, the first truly year-round navigable river; it is located approximately 

265 miles from the spot where I wanted to cross that dcscr1 wash with a road. See Figure I on the 

following page which illustrates the vast, and hydrologically disconnected, expanse of space between 

the Santa Cruz basin near Chilton Ranch and the Colorado River. It is an unsupportable assertion of 

authority for the EPA and Corps to claim that the entire Santa Cruz basin, liberally covered with dry 

washes that are ephemeral at best, has a navigable or even seasonal nexus with the Colorado River. 

My desire to obtain a Corps 404 permit to cross a desert wash with a small ranch road, on the welldocumented right-of-way I owned, became so time-consuming (over three years) and expensive that 

I abandoned the project altogether. The $40,000 I had spent was entirely the result of the vague and 

expansive requirements of EPA and the Corps of Engineers; not a penny went to a constrnctive or 

productive agricultural need; it was all for a permit writing expert, consultants, an environmental 

assessment and engineering report, a survey, and attorney fees. 

3 
35 

Figure 1. The Chilton Ranch is located at the red "X". The dark line leading north of the ranch 

represents the Santa Cruz basin. The dark line on the left represents the Gila River basin. Note: the 

dark lines represent river beds, not flowing water. As you can see, these river beds do not connect 

and therefore no nexus exists between my ranch and the navigable Colorado River, which constitutes 

the western border of Arizona along the left side of the map. 

4 
36 

Another ranch improvement abandoned 

A second personal experience emphasizes the point that, when a bureaucracy writes rules, it 

is always tempted to expand its authority. This time I wanted to improve a small dirt road on my 

private land by placing a culve!1 in a (UY wash which had twelve inches wide of sand in the bottom. I 

needed this improvement so the dip would be more easily crossed by ranch trucks. This little road 

and the dty wash are located more than 270 miles from the navigable Colorado River. My 

environmental consultant again told me that, at that point in time, this dry wash would be considered 

a Water of the United States and therefore a 404 permit would be required to improve this road. 

Based on my expensive and time-consuming experience with the other dry wash, I did not pursue the 

permit and did not improve the road. 

Later, the Supreme Court Rapanos decision was issued. With a carefi.tl reading of the Rapanos 

decision, 1 concluded that there was clearly not a significant nexus between my culvert project 

and the navigable Colorado River. Therefore, I installed the culvert in the dry wash and 

significantly improved my road. Please see Figure 2, below, depicting the actual bridge with 

culvert Chilton Ranch LLC constructed after the Supreme Court Rapanos decision. 

Unfortunately, two years ago, the EPA and the Corps promulgated the 2015 WOTUS Rule which 

would have made it again highly questionable whether I could improve a ranch road to cross any 

dry wash, of which there are probably hnndrcds on my ranch, without a 404 Permit. 

Figure 2. The dry wash and constructed bridge and culvert at Chilton Ranch. 

5 
37 

Corps 404 Permitting Costs 

Language in the Supreme Court Rapanos Decision described costs typically incurred due to the 

former interpretation: 

... "the average applicant for an individual Clean Water Act permit spends 788 days and 

$271,596 in complying with the current process and the average applicant for a 

nationwide permit currently spends 313 days and $28,915 - not counting the substantial 

costs of mitigation or design changes." Rapanos, 447 U.S. at 719 (plurality opinion). 

Clearly, the Court found that the Clean Water Act permitting process was unjustifiably expensive in 

both time and money. Farn1ers and ranchers are concerned now about future rule development that 

could return us to the situation we, as well as small businesses, small communities, forestry, mining, 

manufacturing and all productive land uses, faced prior to the Rapanos decision. 

Tyranny of the Bureaucracy 

In my view, the 2015 WOTUS Rule empowered bureaucrats to impose their personal views without 

concern for being called to account for their actions. Any future rule should be designed to restrict 

such behavior by removing any subjectivity from interpreting what is a federal water. We need a 

reasonable interpretation shared by citizens on what constitutes a navigable river and what is a 

genuine nexus to navigable water. 

Unfortunately, when a vague and expansive rule is adopted, it opens the door for activists to freely 

interpret federal regulations to advance their personal philosophy. This de facto license results in a 

form of tyranny that supplants the rule oflaw and undermines public respect for government. From 

our own experience and that of other western ranchers, every past EPA and Corps expansion of 

jurisdiction has eventually resulted in enabling agenda-driven individuals within the bureaucracies to 

drive federal policy toward their wildland vision. I have personally had to conduct decades-long 

battles to redress unjustified bureaucratic attacks and to defend the right to produce food and to 

protect our multi-generation ranching heritage. 

Respect for Private Property 

As George Washington said, "private property and freedom arc inseparable." 

As a Supervisor on our Pima County Natural Resource Conservation District Board, I recognize that 

our Disl1ict Cooperators, small ranchers, and farmers rely on their property rights and the right to 

produce without federal imposition of undue burdens. Consequently, the question of potential rule 

development that could again inappropriately label dry washes on our land as navigable waters 

directly concems us and our Resource Conservation Cooperators. W c advocate that future rule 

development on WOTUS properly construe the limits of the federal government and the role of the 

agents enforcing that rule. 

6 
38 

Conclusion 

It is clear the 2015 Rule would have allowed the EPA and the Corps of Engineers to trump 

states' rights to manage intrastate waterways and even dry washes and river beds. Any future rule 

should recognize the authority of state and local governments to make local land and water use 

decisions. It is, for example, our position that intra-state rivers, such as the Santa Cruz in southern 

Arizona, should be regulated by the State, not the Federal Govemment. We request that Congress 

take action to ensure that any new EPA and Corps rule minimize adverse impact on farmers, 

ranchers, businesses, and individuals, and that it must be designed to reduce the potential for 

abuse through expansive interpretation, and to recognize the reality that a navigable water is 

exactly that: a waterway with sufficient water to be an avenue of shipping commerce. It is 

simply unacceptable to require family ranchers, farmers, and other small businesses to hire expensive 

legal and environmental experts to navigate compliance with a federal rule that is both overexpansive and ambiguous. Any future rule must clearly delineate agricultural exclusions; small 

agricultural producers cannot wait on ranch and farm improvements for years while the wheels of 

bureaucracy slowly tum out the required permits. 

In our area, a significant nexus with the Colorado River does not exist in the Santa Cruz Dry River 

Basin since the Santa Cruz spreads out and disappears in the Santa Cruz Flats south of Eloy, Arizona 

approximately 68 miles distant from the dry Gila River. Southem Arizona does not have a 

"significant nexus with a navigable water." 

Future EPA and Corps rules must be simple, straight-forward, and easily interpreted. Likewise, 

future rules must not infringe on private propetty rights or States' rights. The following are the 

recommendations of the National Cattlemen's Beef Association and Public Lands Council: 

I. Producers living in states with an approved section 402 pennitting program need a clear 

rule that defines WOTUS based on objectively identifiable characteristics to 

reasonably administer the program within their borders. Such a definition will go a long 

way towards avoiding litigation and other costs that divert scarce resources from 

protecting state and federal waters. 

2. The EPA should conduct a thorough review of congressional intent and judicial 

interpretations, including Justice Scalia's opinion in the Rapanos case, and develop an 

independent interpretation of the various Clean Water Act terms, including "waters 

of the United States," rather than relying strictly on one judge's view. 

3. The tenn "navigable waters" must be given importance and effect. We recognize that 

Congress intended to regulate at least some waters that are not navigable in the traditional 

sense. This is clear from prior U.S. Supreme Court decisions in Riverside Bayview, 

SWANCC, and Rapanos. However, federal jurisdiction cannot extend to isolated or 

intrastate waters that are not navigable. Nor does it extend to any ordinarily dry features, 

such as ephemeral streams. Justice Kennedy concurred with notion in the Rapanos case, 

criticizing the Agencies for leaving "wide room for regulation of drains, ditches, and 

streams remote from any navigable-in-fact water and carrying only minor water volumes 

7 
39 

toward it," and for asserting jurisdiction over wetlands "little more related to navigablein-fact waters" than the isolated ponds at issue in SWANCC. 

4. In defining those non-navigable water bodies or wetlands that are "waters of the U.S.", 

EPA should focus on water features that have an actual surface connection to 

traditional navigable waters and that arc identifiable based on clear, objective 

characteristics, to provide clarity and certainty to regulators and the producers. Mere 

adjacency to a tributary is insufficient to create jurisdiction. 

5. A water feature that is "relatively permanent" must contain water persistently and 

frequently. At a minimum, they must continuously carry water on a seasonal basis (such 

as throughout the spring and summer season). Features that are usually dry and only 

carry water when it rains are not "relatively permanent" waters. 

6. \Vetlands should only be "waters ofthe U.S." when they are adjacent to traditional 

navigable waters and their tributaries, meaning they directly touch or share a common 

border with those waters. The presence of a hydrologic connection to navigable-in-fact 

waters is not enough to support federal jurisdiction. 

7. Administrative clarity and regulatory certainty arc key goals of this rulemaking. Because 

the Clean Water Act is a strict liability statute that includes an absolute prohibition on 

unauthorized discharges into WOTUS, the new definition must provide clear lines to 

put regulated entities on notice and meet administrative due process requirements. 

8. An appropriately narrow and clear WOTUS definition will go a long way to fix the issues 

that many agricultural producers face when attempting to comply with the Clean Water 

Act. That being said, the EPA and Army Corps should carefully consider the need to 

retain the long-standing agricultural exclusions from WOTUS and should consider 

the need for additional exclusions, depending on the scope of the revised WOTUS 

definition. 

8 
40 

JAMES K. CHILTON, JR. 11-29-17 

Jim Chilton, a fifth generation Arizona rancher, was born in 1939 and raised on farms and 

ranches. In 1979, Mr. Chilton, together with his father and brother formed a partnership, Chilton 

Ranch & Cattle Company, a cow-calf ranching company. In 1987, Mr. Chilton and his wife Sue 

and two sons purchased a 50,000-acre ranch south of Arivaca, Arizona that expanded the family 

operation. 

Mr. Chilton was honored as Rancher of theY ear in 2002 by the Arizona Cattle Growers' 

Association and three years later received a similar award from the Arizona Farm Bureau. In 

2005, he received the True Grit Award from the Arizona Cattle Growers' Association and the 

Individual of the Year Award from the Arizona/New Mexico Coalition of Counties. In 1991, the 

Chiltons were awarded the Pima County Natural Resource Conservation District Award of Merit 

for Outstanding Accomplishments in Resource Conservation. In 2005, his wife and he received 

The Arizona Farm Bureau Environmental Stewardship Award. 

Mr. Chilton has been a principal in municipal financial advisory firms since 1970. Prior to 

fonning his own municipal investment banking finns, Mr. Chilton was Senior Vice President 

and Manager of the Shearson!American Express Public Finance Division for the western United 

States. 

A graduate of Arizona State University, he received a Bachelor of Science, a Master of Science 

in Economics, and a Master of Arts in Political Science. Mr. Chilton also served U.S. Senator 

Carl Hayden of Arizona for three years as a Special Assistant. 

He and his wife Sue have been married for over 54 years, raised two sons and are enjoying five 

grandchildren. 

9 
41 

Chairman BIGGS. Thank you, Mr. Chilton. 

Mr. Kopocis. 

TESTIMONY OF MR. KEN KOPOCIS, 

ADJUNCT ASSOCIATE PROFESSOR, 

AMERICAN UNIVERSITY 

WASHINGTON COLLEGE OF LAW 

Mr. KOPOCIS. Thank you. Chairman Biggs, Ranking Member 

Bonamici, and other Members of the Subcommittee, thank you for 

the request to appear today to discuss the future for protecting 

water quality under the Clean Water Act and the role of the 

States. I appear today in my personal capacity. 

In 1972, Congress enacted the Clean Water Act to restore and 

maintain the integrity of the nation’s waters. If a water subject to 

the act is not going to be polluted or destroyed, it does not come 

under the authority of the Clean Water Act. 

Congress has also created significant roles for the States in the 

implementation of the Clean Water Act, often referred to as cooperative federalism. The Trump EPA has put forward a false choice 

that providing protection against polluting and destroying 

waterbodies somehow is adverse to states’ interests. Today, most of 

the day-to-day activities for implementing the Clean Water Act are 

carried out by the states. States decide how clean their waters will 

be, not EPA, plus a significant number of States have not challenged the Clean Water Rule, and their interests are adversely affected by the proposed rollback. Further reducing the scope of the 

Clean Water Act will only reduce State efforts to protect waters 

from pollution and destruction by eliminating their federal partner. 

The Trump Administration is pursuing a policy of repeal and retreat, repeal the Clean Water Rule and retreat to jurisdiction based 

on the excessively narrow plurality opinion in Rapanos. But that 

opinion was expressly rejected by five of the nine Justices of the 

Court. A Scalia-based rule is guaranteed to continue the postRapanos confusion and litigation for many, many years to come, 

and it is not likely to withstand judicial challenge. 

A Scalia-based rule also has adverse practical effects for protecting state waters from pollution and destruction. Eliminating 

the protection for intermittent and ephemeral streams will remove 

Clean Water Act protection for as much a 60 percent of the Nation’s waters, and in some areas this could be 80 to 90 percent. 

These waters would no longer be protected by water quality standards; no Clean Water Act permits would be required for discharges 

of pollutants; funding to address municipal wastewater, 

stormwater, and nonpoint source pollution would be less available; 

and federal authority to respond to oil spills would be curtailed. 

While some argue that States can and will fill this void, since the 

scope of the Clean Water Act was limited in 2001 and 2006, there 

is no evidence that any State has done so. The act refers to navigable waters, which Congress defined as Waters of the United 

States, including the territorial seas. The Supreme Court has considered this definition three times, and in each case, every Justice 

has agreed that the term ‘‘navigable waters’’ applies to waters beyond those considered to be traditionally navigable. This debate 

should be over. 
42 

Although neither SWANCC nor Rapanos invalidated the Agency’s regulations, the EPA and the Corps spent several years developing the Clean Water Rule in response to demands of interested 

parties across the entire interested spectrum, yet the Trump Administration’s current plans for repeal and retreat will bring back 

the confusion and litigation everyone said they wanted to end. 

The agencies developed a rule based upon Justice Kennedy’s significant nexus test, a test that would have the support of five of 

the nine Justices on the Court, unlike the Scalia standard, which 

only had four. The rule is supported and informed by the best 

available peer-reviewed science on the relationship of waters and 

the impacts of upstream waters on downstream and adjacent 

waters. The validity and credibility of the science used by the agencies to support the Clean Water Rule has not been seriously denied 

or refuted. If there is better science, then bring it to the attention 

of the public and the agencies for their consideration. 

The rule establishes which waters will be jurisdictional in which 

circumstances and expanded the list of waters that would not be 

subject to jurisdiction. People would for the first time be able to 

read the rule and better know that a waterbody or feature was or 

was not subject to the act and—without the need for an expert or 

an individual analysis. The rule also establishes transparency in 

how the agencies will make significant nexus determinations instead of leaving those decisions within the discretion of an agency 

employee. For greater detail, I attached the rule to my testimony. 

The Clean Water Rule is a carefully considered rule that was developed with unprecedented public engagement and comment. It 

was available for public comment for 207 days. During that period, 

EPA held over 400 public meetings, and I personally attended 

about 70 of those in my prior capacity, including multiple visits to 

farms. Unfortunately, the rule’s benefits of clarity, predictability, 

and consistency have been put on hold, but that will be resolved. 

The Trump Administration does a disservice to the public with its 

path of repeal and retreat. It will only continue the post-Rapanos 

confusion and litigation for many, many years. 

The work of the Clean Water Act is far from finished. State-generated water quality reports indicate hundreds of impaired waters 

in need of reduced pollution and increased protection. Narrowing 

the scope of the act does not advance these joint state and federal 

efforts. No one ever says that the water in our rivers, lakes, 

streams, and ponds is too clean, there are too many healthy fish 

to catch and eat, or that drinking water is too clean and abundant. 

The Trump policy of repeal and retreat only imperils the integrity 

of our nation’s waters. 

Thank you, and I’m happy to answer any questions you may 

have. 

[The prepared statement of Mr. Kopocis follows:] 
43 

Opening Statement 

Ken Kopocis 

Hearing before the Subcommittee on Environment 

Committee on Science, Space, and Technology 

U.S. House of Representatives 

November 29, 2017 

Chairman Biggs, Ranking Member Bonamici, and other members of the subcommittee, 

thank you for the request to appear today to discuss the future for protecting water quality of the 

"waters of the United States" under the Clean Water Act and the role of the States. I appear 

today in a personal capacity. 

In 1972, Congress established the objective of the Clean Water Act, to restore and 

maintain the chemical, physical, and biological integrity of the Nation's waters. Congress made 

clear that this objective would be best achieved by controlling pollutant discharges at their 

source, and reemphasized that objective through the substantial amendments of 1977 and 1987 

that tightened controls on pollutant discharges. Congress made water quality the heart of the 

statutory and regulatory program. 

Congress also created significant roles for the States in the implementation of the Clean 

Water Act, these roles are often referred to as a partnership or cooperative federalism. Today, 

most of the day-to-day activities for implementing the Clean Water Act are carried out by the 

States. Further reducing the scope of the Clean Water Act will only reduce State efforts to 

protect waters from pollution and destruction. 

Clean water in adequate supply is essential to our existence. Whether illustrated by the 

recent drought in California or the lead contamination in Flint, Michigan, we have daily 

reminders that water is essential to life. Waters arc also important to the environment in which 

we live. Rivers, lakes, ponds and wetlands supply and cleanse our drinking water, ameliorate 

storm surges, provide invaluable storage capacity for flood waters, and enhance our quality of 

life by providing essential habitat, myriad recreational opportunities, as well as important water 

supply and power generation benefits. 

Consider these facts about the value of clean water to Americans: 

• Manufacturing companies use nine trillion gallons of fresh water every year. 
44 

• 31 percent of all water withdrawals in the U.S. are for irrigation, highlighting the extent 

to which the nation's farmers depend on clean water. 

• About 40 million anglers spend $45 billion annually to fish in U.S. waters. 

• The beverage industry uses more than 12 billion gallons of water annually to produce 

products valued at $58 billion. 

• About 60 percent of stream miles in the U.S. only flow seasonally or after rain, but are 

critically important to the health of downstream waters. 

• Approximately 117 million people one in three Americans get their drinking water 

from public systems that rely on seasonal, rain-dependent, and headwater streams. 

The U.S. Environmental Protection Agency and Department of the Army issued the 

Clean Water Rule in 2015 to ensure that the Nation's waters could continue to provide these 

essential benefits, making waters better protected from pollution and destruction by having the 

scope of the Clean Water Act easier to understand, more predictable, and more consistent with 

the law and peer-reviewed science. 

The Supreme Court considered the scope of waters protected by the Clean Water Act 

from pollution and destruction three times- U.S. v. Riverside Bayview Homes in 1985, Solid 

Waste Agency of Northern Cook County v. Army Corps of Engineers in 2001, and Rapanos v. 

U.S. in 2006. In each of those cases, in every opinion written by the justices, whether it was 9 

0 in Riverside Bayview, 5 4 in SWANCC, or 4- 1 - 4 in Rapanos, every justice has supported 

that the Clean Water Act term "navigable waters" is broader than the traditional understanding of 

that term. The Clean Water Act applies to waters beyond those considered to be traditionally 

navigable. The Supreme Court has been completely consistent on this point. 

The Clean Water Rule was developed to address the uncertainty and confusion following 

the U.S. Supreme Court decisions usually referred to simply as SWANCC and Rapanos. 

In SWANCC, a majority of the Court invalidated the agencies' practice of using the 

presence of migratory birds as a sole basis for establishing Clean Water Act jurisdiction, and the 

agencies stopped that practice. The Court in SWANCC did not invalidate any aspect of the 

agencies' regulations. 

In Rapanos, the Court considered two consolidated cases involving wetlands that did not 

immediately abut traditionally navigable waters. In Rapanos, no opinion could gather a 

majority, and the nine justices wrote five separate opinions. The confusion evident on the Court 

carried over into the regulatory responsibilities ofthe two agencies and resulted in the George W. 

Bush administration issuing guidance in 2003 and 2008 to reconcile the several opinions of the 

2 
45 

Court with the existing regulations defining the scope of the Clean Water Act. Again in 

Rapanos, the agencies' regulations were left intact by the Court. 

Following the confusion generated by Rapanos, interested parties demanded that the 

agencies take action to clarify which waters would have their quality and existence protected by 

the Clean Water Act, and equally important which would not. Every interest group that 

approached the agencies, and this includes the agriculture community, the property development 

and construction community, the environmental community, the resource extraction community, 

the hunting and fishing community, mayors, governors and Federal and State legislators on both 

sides of the aisle, and countless others recommended that the agencies take action to address the 

post-Rapanos confusion. No one argued for the agencies to do nothing and retain the status quo. 

Yet, that is the course the Trump administration is currently pursuing. 

To respond to these requests, the agencies spent several years developing the Clean 

Water Rule. This development was subject to countless conversations with outside groups, 

including all of those I mentioned previously- State, local and Federal interests in the public and 

private sectors. When the agencies considered issuing additional guidance as an interim 

measure, that effort had both strong support and strong criticism. The agencies abandoned the 

idea of developing guidance and chose to pursue formal rule-making under the Administrative 

Procedure Act. While more time consuming, rule-making provides more certainty since 

guidance is not binding on the agencies. 

The Clean Water Rule clarifies the jurisdiction of the Clean Water Act and would reduce 

the costly and time-consuming case-specific significant nexus analysis that resulted from the 

Rapanos decision. The Rule interprets the Clean Water Act, it does not expand it. In fact, 

because of the implementation of the Supreme Court decisions and the added exclusions, the 

Clean Water Rule narrows the coverage of the Clean Water Act compared to the 1986 Rule it 

replaces, and does so consistent with the Act's legislative history and the court cases interpreting 

it. 

The Rule is supported by the best available peer-reviewed science on the relationship of 

waters, their connectivity, and the impacts of protecting water quality or not protecting water 

quality on downstream and adjacent waters. EPA's Office of Research and Development 

prepared an exhaustive synthesis of peer-reviewed science on how waters are connected to each 

other and how they impact downstream waters. This Science Report was also peer-reviewed by 

EPA's independent Science Advisory Board and subjected to public comment. The Science 

Report informed the agencies' actions in response to the policy guidance provided by the 

Supreme Court in both the SWANCC and Rapanos decisions- how best to consider the 

significant nexus between upstream and downstream waters when determining the jurisdiction of 

the Clean Water Act. 

3 
46 

The final Science Report provides several key conclusions based on review of the peerreviewed scientific literature: 

1. All tributary streams, including perennial, intennittent, and ephemeral streams, are 

physically, biologically, and chemically co1mected to downstream rivers and this 

connection influences the integrity of downstream rivers. 

2. Wetlands and open waters in floodplains and riparian areas are physically, chemically 

and biologically connected with downstream rivers and influence the ecological integrity 

of such rivers. 

3. Non-floodplain wetlands and open waters (i.e., isolated waters) provide many 

functions that benefit downstream water quality and ecological integrity. 

4. The connectivity of streams, wetlands and other surface waters, taken as a whole, to 

downstream waters occurs along a continuum from highly connected to highly isolated 

but these variations in the degree of connectivity are critical to the ecological integrity 

and sustainability of downstream waters. 

5. The critical contribution of upstream waters to the chemical, physical, and biological 

integrity of downstream waters results from the accumulative contribution of similar 

waters in the same watershed and in the context of their function considered over time. 

Continuing even to today, the validity and credibility of the science used by the agencies 

to support the Clean Water Rule has not been seriously challenged. The agencies have not 

denied or refi.lted the science. The various litigants challenging the Rule have not put forward 

newer or better science to dispute the conclusions of the Science Report. If there is better 

science, those challenging the conclusions, whether public or private, have an obligation to bring 

such science to the attention of the public and the agencies for their consideration. Without such 

new information, the agencies must stand behind the prior work. 

Because of the Clean Water Rule's greater clarity and specificity compared to the rule it 

replaced, no longer would many waters, such as some tributaries, adjacent waters, ditches and 

wetlands, need a level of individual analysis to determine whether there was a significant nexus 

to a downstream water that Rapanos required and the old regulatory definition did not provide. 

Because of the new exclusions in the Clean Water Rule, people would for the first time be able 

to read the Rule and better know that a water body or feature was not subject to the Clean Water 

Act without the need for an individual analysis. 

The Clean Water Rule continues to apply the protections of the Clean Water Act to 

traditionally navigable waters, interstate waters, the territorial seas, impoundments of otherwise 

jurisdictional waters, tributaries, and adjacent wetlands. The Clean Water Rule deletes the 

4 
47 

jurisdiction of the Clean Water Act over waters "the use, degradation or destruction of which 

could affect interstate or foreign commerce" and replaces it with the significant nexus analysis 

first established by the majority opinion in SWANCC and carried forward in Rapanos by Justice 

Kennedy. The Rule also establishes transparency in how the agencies will make significant 

nexus detcnninations by listing specific factors instead of leaving those decisions within the 

discretion of an agency employee. 

The Clean Water Rule carries forward the jurisdictional exclusions for waste treatment 

systems and prior converted cropland. It also adds new regulatory exclusions such as for certain 

ditches, artificially irrigated areas, fann and stock water ponds, irrigation ponds, settling basins, 

fields flooded for rice growing, log cleaning ponds, cooling ponds, reflecting and swimming 

pools, ornamental waters, water-filled depressions incidental to mining or construction, erosional 

features and grassed waterways, groundwater including tile drains, storm water features, 

wastewater recycling and groundwater recharge. 

For greater detail on the inclusions and exclusions, the complete text of the Clean Water 

Rule is attached as an appendix to this statement. 

The Clean Water Rule is a carefully considered rule that was developed with 

tmprecedented public engagement and comment. The agencies received and considered over one 

million public comments over a period of 207 days. The agencies held over 400 public meetings 

all across the country. I personally attended about 70 of those meetings in my prior capacity, 

both in Washington and around the country, including multiple visits to farms. The Rule applies 

the law as written by Congress and interpreted by the Supreme Court; it relies upon the best 

available peer-reviewed science to support its scope; and it is the product of over 40 years of 

technical expe1tise of the U.S. EPA and the Department of the Anny working with the Corps of 

Engineers in administering the Clean W atcr Act. 

Unfortunately, the Rule's benefits of clarity, predictability and consistency have been put 

on hold by the courts, but that will ultimately be resolved. I personally am very aware of the 

controversy surrounding the scope of the Clean Water Act over these many years, but I also 

believe it is a disservice to the public that the Trump administration has indicated that it will 

undertake a new rule-making to retreat from the Clean Water Rule. Of even greater concern is 

the stated intent of the Trump administration to develop a new rule based upon the plurality 

opinion authored by Justice Scalia in Rapanos. This would be a retreat from the 1986 Rule 

adopted by the Reagan administration. 

The plurality opinion in Rapanos was expressly rejected by five of the nine justices 

rejected by a majority of the court. In addition to the four dissenting justices who rejected the 

plurality opinion, Justice Kennedy wrote that the plurality opinion "makes little practical sense" 

and was "unpersuasive." He concluded, "In sum, the plurality's opinion is inconsistent with the 

5 
48 

Act's text, structure, and purpose." The current effort to develop a Scalia-based rule is 

guaranteed to continue the post-Rapanos confusion and litigation for many, many years to come, 

and is not likely to withstand judicial challenge. 

The Trump EPA has put forward a false choice that providing protection against 

polluting and destroying waterbodies somehow is adverse to States' interests. Under the Clean 

Water Act, States decide how clean their waters will be by establishing the designated use for 

waters within the State. States are also able to establish water quality criteria that support those 

uses. Forty-six of the fifty States already implement many day-to-day aspects of the Clean 

Water Act through state permitting programs. Plus, a significant number of States have not 

challenged the Clean Water Rule and their interests are undercut by the proposed rollback. 

A Scalia-based rule also has many adverse practical effects for protecting State waters 

from pollution and destruction. For example, eliminating the protection for intermittent and 

ephemeral streams will remove Clean Water Act protection for a significant number of waters 

as much as 60 percent nationally. In more arid areas of the country, this could be as high as 80 

to 90 percent. These waters would no longer be protected by water quality standards, no Clean 

Water Act permits would be required for discharges of pollutants, funding to address municipal 

wastewater, stormwater, and nonpoint source pollution would be less available, and Federal 

authority to respond to oil spills would be curtailed. While some argue that States can and will 

fill this void, since the scope of the Clean Water Act was first limited in 200 I and further limited 

in 2006, there is no evidence that any State has done so. 

The Clean Water Act is often referred to as our most effective environmental law, and it 

has resulted in great improvements in water quality. However, the work is far from finished -

State generated water quality reports indicate hundreds of impaired waters in need of reduced 

pollution and increased protection. Abandoning upstream waters and continuing the confusion 

on how to protect water quality does not advance these joint efforts at the State and Federal level. 

In my thirty-plus years in water law, I have never heard that the water in our rivers, lakes, 

streams and ponds is too clean, that there arc too many healthy fish to catch and eat, that our 

drinking water is too clean and abundant, or that we need more beach closures due to pollution. 

The Clean Water Rule advances the cause of protecting human health and the environment. This 

is not a time for retreat. 

Thank you again, I am pleased to answer any questions you may have. 

6 
49 

APPENDIX to Statement of Ken Kopocis 

The following definition was published on June 29,2015 by EPA and the Department of the 

Army as the Clean Water Rule. On October 9, 2015, the 61

h Circuit Court of Appeals 

stayed the use of the revised rule. The revised rule is reproduced below. 

Code of Federal Regulations 

(Revised 2015 by Clean Water Rule, currently stayed by 6'h Circuit.) 

Title 40- Protection of Environment. CHAPTER I- ENVIRONMENTAL PROTECTION 

AGENCY (CONTINUED). SUBCHAPTER D- WATER PROGRAMS. PART 122- EPA 

ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE 

ELIMINATION SYSTEM. Subpart A- Definitions and General Program Requirements. 

Authority: The Clean Water Act, 33 U.S.C. 1251 et seq. 

Source: 80 FR 37054, June 29, 2015 

§ 122.2 Definitions. 

The following definitions apply to parts 122, 123, and 124. Terms not defined in this section 

have the meaning given by CW A. When a defined term appears in a definition, the defined term 

is sometimes placed in quotation marks as an aid to readers. 

* * * * * 

Waters of the United States or waters of the US. means: 

(!)For purposes ofthe Clean Water Act, 33 U.S.C. 1251 et seq. and its implementing 

regulations, subject to the exclusions in paragraph (2) of this definition, the term "waters of the 

United States" means: 

(i) All waters which are currently used, were used in the past, or may be susceptible to 

use in interstate or foreign commerce, including all waters which are subject to the ebb and flow 

of the tide; 

(ii) All interstate waters, including interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters otherwise identified as waters of the United States under 

this section; 

7 
50 

(v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in 

paragraphs (l)(i) through (iii) of this section; 

(vi) All waters adjacent to a water identified in paragraphs (l)(i) through (v) of this 

definition, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters; 

(vii) All waters in paragraphs (l)(vii)(A) through (E) of this definition where they are 

determined, on a case-specific basis, to have a significant nexus to a water identified in 

paragraphs (l)(i) through (iii) of this definition. The waters identified in each of paragraphs 

(l)(vii)(A) through (E) of this definition arc similarly situated and shall be combined, for 

purposes of a significant nexus analysis, in the watershed that drains to the nearest water 

identified in paragraphs (l)(i) through (iii) of this definition. Waters identified in this paragraph 

shall not be combined with waters identified in paragraph (l)(vi) of this definition when 

performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (1 )(vi), they are an adjacent water and no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually 

occurring in depressions that lack pennanent natural outlets, located in the upper 

Midwest. 

(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, 

depressional wetlands that occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins arc evergreen shrub and tree dominated wetlands found 

predominantly along the Central Atlantic coastal plain. 

(D) Western vernal pools. Western vernal pools arc seasonal wetlands located in parts of 

California and associated with topographic depression, soils with poor drainage, mild, 

wet winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands 

that occur as a mosaic of depressions, ridges, intermound flats, and mima mound 

wetlands located along the Texas Gulf Coast. 

(viii) All waters located within the 1 00-year floodplain of a water identified in paragraphs 

(l)(i) through (iii) of this definition and all waters located within 4,000 feet of the high tide line 

or ordinary high water mark of a water identified in paragraphs (l)(i) through (v) of this 

definition where they are determined on a case-specific basis to have a significant nexus to a 

water identified in paragraphs (l)(i) through (v) of this definition. For waters detennined to have 

a significant nexus, the entire water is a water of the United States if a portion is located within 

the I 00-year floodplain of a water identified in ( l)(i) through (iii) of this definition or within 

4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph 

shall not be combined with waters identified in paragraph (1 )(vi) of this definition when 

8 
51 

performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (l)(vi), they arc an adjacent water and no case-specific significant nexus 

analysis is required. 

(2) The following are not "waters of the United States" even where they otherwise meet 

the terms of paragraphs (l)(iv) through (viii) of this definition. 

(i) Waste treatment systems, including treatment ponds or lagoons designed to meet the 

requirements of the Clean Water Act. This exclusion applies only to manmade bodies of 

water which neither were originally created in waters of the United States (such as 

disposal area in wetlands) nor resulted from the impoundment of waters of the United 

States. [See Note I of this section.] 

(ii) Prior converted cropland. Notwithstanding the determination of an area's status as 

prior converted cropland by any other Federal agency, for the purposes of the Clean 

Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that arc not a relocated tributary or excavated in a 

tributary. 

(B) Ditches with intermittent flow that are not a relocated tributary, excavated in a 

tributary, or drain wetlands. 

(C) Ditches that do not flow, either directly or through another water, into a water 

identified in paragraphs ( l )(i) through (iii) of this definition. 

(iv) The following features: 

(A) Artificially irrigated areas that would revert to dry land should application of water to 

that area cease; 

(B) Artificial, constructed lakes and ponds created in dry land such as fann and stock 

watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log 

cleaning ponds, or cooling ponds; 

(C) Artificial reflecting pools or swimming pools created in dry land; 

(D) Small ornamental waters created in dry land; 

(E) Water-filled depressions created in dry land incidental to mining or construction 

activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; 

9 
52 

(F) Erosional features, including gullies, rills, and other ephemeral features that do not 

meet the definition of tributary, non-wetland swales, and lawfully constructed grassed 

waterways; and 

(G) Puddles. 

(v) Groundwater, including groundwater drained through subsurface drainage systems. 

(vi) Stormwater control features constructed to convey, treat, or store stormwater that are 

created in dry land. 

(vii) Wastewater recycling structures constructed in dry land; detention and retention 

basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for 

wastewater recycling; and water distributary structures built for wastewater recycling. 

(3) [n this definition, the following terms apply: 

(i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water 

identified in paragraphs (1)(i) through (v) of this definition, including waters separated by 

constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of 

adjacency, an open water such as a pond or lake includes any wetlands within or abutting its 

ordinary high water mark. Adjacency is not limited to waters located laterally to a water 

identified in paragraphs (l)(i) through (v) of this definition. Adjacent waters also include all 

waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are located 

at the head of a water identified in paragraphs (1)(i) through (v) of this definition and are 

bordering, contiguous, or neighboring such water. Waters being used for established normal 

farming, ranching, and silviculture activities (33 U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term neighboring means: 

(A) All waters located within I 00 feet of the ordinary high water mark of a water 

identified in paragraphs (l)(i) through (v) ofthis definition. The entire water is 

neighboring if a portion is located within I 00 feet of the ordinary high water mark; 

(B) All waters located within the 1 00-year floodplain of a water identified in paragraphs 

(l)(i) through (v) of this definition and not more than 1,500 feet from the ordinary high 

water mark of such water. The entire water is neighboring if a portion is located within 

1,500 feet of the ordinary high water mark and within the l 00-year floodplain; 

(C) All waters located within 1,500 feet of the high tide line of a water identified in 

paragraphs (1)(i) or (iii) of this definition, and all waters within 1,500 feet of the ordinary 

high water mark of the Great Lakes. The entire water is neighboring if a portion is 

10 
53 

located within 1,500 feet of the high tide line or within I ,500 feet of the ordinary high 

water mark of the Great Lakes. 

(iii) Tributary and tributaries. The tenns tributary and tributaries each mean a water that 

contributes flow, either directly or through another water (including an impoundment identified 

in paragraph (l)(iv) of this definition), to a water identified in paragraphs (l)(i) through (iii) of 

this definition that is characterized by the presence ofthe physical indicators of a bed and banks 

and an ordinary high water mark. These physical indicators demonstrate there is volume, 

frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water 

mark, and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made 

water and includes waters such as rivers, streams, canals, and ditches not excluded under 

paragraph (2) of this definition. A water that otherwise qualifies as a tributary under this 

definition does not lose its status as a tributary if, for any length, there are one or more 

constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks 

(such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows 

underground) so long as a bed and banks and an ordinary high water mark can be identified 

upstream of the break. A water that otherwise qualifies as a tributary under this definition does 

not lose its status as a tributary if it contributes flow through a water of the United States that 

does not meet the definition of tributary or through a non-jurisdictional water to a water 

identified in paragraphs (l)(i) through (iii) of this definition. 

(iv) Wetlands. TI1e term wetlands means those areas that are inundated or saturated by 

surface or groundwater at a frequency and duration sufficient to support, and that under normal 

circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil 

conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. 

(v) Significant nexus. The tenn significant nexus means that a water, including wetlands, 

either alone or in combination with other similarly situated waters in the region, significantly 

affects the chemical, physical, or biological integrity of a water identified in paragraphs (l)(i) 

through (iii) of this definition. The tenn "in the region" means the watershed that drains to the 

nearest water identified in paragraphs (l)(i) through (iii) of this definition. For an effect to be 

significant, it must be more than speculative or insubstantial. Waters are similarly situated when 

they function alike and are sufficiently close to function together in affecting downstream waters. 

For purposes of determining whether or not a water has a significant nexus, the water's effect on 

downstream (1 )(i) through (iii) waters shall be assessed by evaluating the aquatic functions 

identified in paragraphs (3)(v)(A) through (I) of this definition. A water has a significant nexus 

when any single function or combination of functions performed by the water, alone or together 

with similarly situated waters in the region, contributes significantly to the chemical, physical, or 

biological integrity of the nearest water identified in parabrraphs (l)(i) through (iii) of this 

definition. Functions relevant to the significant nexus evaluation are the following: 

II 
54 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, filtering, and transport, 

(D) Retention and attenuation of flood waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision oflife cycle dependent aquatic habitat (such as foraging, feeding, nesting, 

breeding, spawning, or use as a nursery area) for species located in a water identified in 

paragraphs (l)(i) through (iii) of this definition. 

(vi) Ordinary high water mark. The term ordinary high water mark means that line on the 

shore established by the fluctuations of water and indicated by physical characteristics such as a 

clear, natural line impressed on the bank, shelving, changes in the character of soil, destmction 

of terrestrial vegetation, the presence of litter and debris, or other appropriate means that 

consider the characteristics of the surrounding areas. 

(vii) High tide line. The term high tide line means the line of intersection of the land with 

the water's surface at the maximum height reached by a rising tide. The high tide line may be 

determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or 

less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings 

or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general 

height reached by a rising tide. The line encompasses spring high tides and other high tides that 

occur with periodic frequency but does not include stonn surges in which there is a departure 

from the normal or predicted reach of the tide due to the piling up of water against a coast by 

strong winds such as those accompanying a hurricane or other intense stom1. 

12 
55 

Kenneth 1. Kopocis 

Currently employed as an associate professor oflaw at American University Washington 

College of Law, Washington, DC. 

Previously served as the Deputy Assistant Administrator in the Office of Water at the 

U.S. Environmental Protection Agency. As the chief official for the Office of Water, managed a 

staff of approximately 550 at Washington headquarters and approximately I ,500 in I 0 EPA 

regions, with a total annual budget of approximately S3 billion. 

Prior to EPA, held several senior positions on the staffs of both the Committee on 

Transportation and Infrastructure of the House of Representatives and the Committee on 

Environment and Public Works of the Senate. The combined Congressional career spanned 

nearly 27 years. 

The Capitol Hill career included hundreds of congressional hearings, scores of legislative 

accomplishments, and interaction with the public, State and local officials, and interest groups. 

Areas oflegislative and policy experience are: matters relating to water pollution control 

and water infrastructure; water resources development, conservation and management; hazardous 

waste cleanup; transportation; and, emergency and disaster response. 

Graduated the Marshall-Wythe School of Law of the College of William and Mary in 

1980, and the University ofNebraska-Omaha in 1977. 

13 
56 

Chairman BIGGS. Thank you, Mr. Kopocis. 

Mr. Hopper. 

TESTIMONY OF MR. REED HOPPER, 

SENIOR ATTORNEY, 

PACIFIC LEGAL FOUNDATION 

Mr. HOPPER. Thank you, Chairman Biggs, and honorable Committee Members, for this opportunity. I’d like to address three particular questions. The first is why is it important to be precise in 

identifying the Waters of the United States? The simple answer is 

that the designation of Waters of the United States affects millions 

of property owners nationwide, and the impact on these property 

owners is quite severe. When an area is designated as subject to 

the Clean Water Act, it essentially gives the Federal Government 

complete control over that property, allowing it to exercise a veto 

power over the land use. 

It also leaves the landowner in a no-win situation. The landowner who has designated property really only has a few options. 

They could simply abandon all use of the property at ruinous cost; 

they could get a permit, which has been estimated to cost, for an 

individual permit, $270,000 and 800 days in processing; or they can 

simply go forward without federal approval and risk civil fines of 

$75,000 a day and/or criminal prosecution. In addition, if the designation of the scope of the Clean Water Act is not properly drawn, 

it raises constitutional questions related to due process, impingement on State rights, and exceedance of the commerce power. 

The second question is, is the revision of the 2015 WOTUS rule 

justified? Again, the short answer is yes. Two courts have already 

determined on a preliminary basis that, on its face, the 2015 

WOTUS rule is probably invalid because it is likely overbroad in 

that it overextends or exaggerates the significant nexus test under 

Rapanos and is incompatible with the SWANCC decision, which 

prohibited regulation of isolated waterbodies. Also, the distance 

limitations the Court has held are likely arbitrary and not supported by scientific evidence. 

In addition, the final rule doesn’t look like the proposed rule, 

which denied the public proper notice and opportunity for comment. More importantly, these courts held that in order to protect 

the States’ primary responsibility to regulate local land and water 

use and to avoid the diminishment of state sovereignty, that the 

rule needed to be stayed not only locally but nationwide. And one 

of the courts also stated that in order to protect the public from 

overreaching government, the rule needed to be enjoined. 

Another reason why it’s appropriate to revise the rule is as I outlined in my law review article called ‘‘Running Down the Controlling Opinion in Rapanos v. United States,’’ all nine Justices—not 

five or four, but all nine Justices would agree that when you use 

the Scalia plurality test and find jurisdiction, Justice Kennedy 

would agree and the four in the dissent would agree so all nine 

Justices would concur. These factors not only justify but necessitate 

pushing the reset button on the WOTUS rule. 

Finally, the third question I would address is where do we go 

from here? I think the real problem is not so much the language 

we’re dealing with but with the inability or unwillingness of the 
57 

Agency to show some constraint. The EPA and the Corps of Engineers need to focus on protecting core water resources instead of 

pushing the envelope on federal power by prosecuting minor or 

imaginary infractions such as digging a ditch; creating a stock 

pond, as in our Johnson case; plowing farmland, as in our Duarte 

case; building a house in a built-out subdivision, as in our Sackett 

case; or asserting jurisdiction over isolated waterbodies, as in our 

Hawkes case. 

Justice Roberts took the Corps of Engineers and the EPA to task 

in the Rapanos decision for not heeding the direction of the Supreme Court in the SWANCC case and said that the agencies continued to rely on a boundless interpretation of the act which is not 

justified. 

So what do we do? How do we constrain the agencies? There are 

two possibilities. One is a legislative fix. This would be more appropriate because it would clarify congressional intent and is more defensible legally. The other one is a regulatory fix with specific language more constrained than the WOTUS rule relying on the 

Scalia plurality. And for specifics on a proposal, I refer you to my 

written testimony, page 15. Thank you very much. 

[The prepared statement of Mr. Hopper follows:] 
58 

November 29, 2017 

Subcommittee on Environment 

The Future of WOTUS: Examining the Role of States 

United States House of Representatives 

Committee on Science, Space, and Technology 

M. Reed Hopper 

Senior Attorney 

Pacific Legal Foundation 

930 G Street 

Sacramento, CA 95814 

916-419-7111 

A SUMMARY 

The 2015 WOTUS rule may be the broadest expansion of federal power in the 

history of the Nation. Through an unprecedented interpretation of"waters of the 

United States," the WOTUS rule imposes complete federal control over virtually all 

waters and much of the land in the Country subjecting millions of citizens to 

potential civil and criminal sanctions for ordinary land use contrary to express 

congressional intent and Supreme Court precedent. The rule also usurps the 

traditional power of the States to manage and regulate local land and water 

resources in violation of the U.S. Constitution. 

More than 30 States and 70 private and community parties, including 

counties, industry, ranchers, farmers, builders, and other landowners, sued to 

overturn the rule. Two federal courts determined the WOTUS rule may be invalid 

because it is likely inconsistent with the Clean Water Act, the Supreme Court's 

Rapanos decision, including Justice Kennedy's broad "significant nexus" test, and 

appears arbitrary and lacking in scientific support. Moreover, these courts held the 

rule must be stayed to protect the States from losing their sovereignty and the 

general public from irreparable harm that follows from government overreaching. 

Revision of the WOTUS rule is therefore prudent and necessary. 

To address the concerns raised in the 2015 WOTUS rule, overzealous agency 

action must be restrained by statutory amendment or regulatory directive. In either 

case, the law must be clear and unambiguous. It must be understandable to 

ordinary citizens and consistently and fairly applied. To that end, the government 

should focus on protecting core water resources and not small, insubstantial 

threats. Faithful adherence to the Scalia plurality in Rapanos offers the most 

judicious approach to Clean Water Act enforcement. 
59 

November 29, 2017 

Subcommittee on Environment 

The Future of WOTUS: Examining the Role of States 

United States House of Representatives 

Committee on Science, Space, and Technology 

Statement 

By 

M. Reed Hopper 

Senior Attorney 

Pacific Legal Foundation 

930 G Street 

Sacramento, CA 95814 

916-419-7111 

Rhopper@pacificlegal.org 

INTRODUCTION 

Chairman Biggs and honorable committee members, as an attorney with the 

Pacific Legal Foundation (PLF), a nonprofit, public interest organization dedicated 

to the protection of individual liberties and private property rights, I thank you for 

this opportunity to provide my analysis of the future of WOTUS. I was privileged to 

represent John Rapanos in the U.S. Supreme Court, in Rapanos v. United States,I 

that is the impetus for the 2015 WOTUS rule. And, on behalf of PLF, I represent 

numerous farmers, ranchers, counties, and other landowners currently challenging 

the rule. The WOTUS rule authorizes federal regulation of virtually all waters in 

the Nation and much of the land. On its face, the rule conflicts with the language of 

the Clean Water Act and Supreme Court cases interpreting the act. The rule also 

usurps the traditional power of the States to manage local land and water resources 

and nullifies constitutional limits on federal authority. 

BACKGROUND 

The Clean Water Act2 prohibits the discharge of pollutants, including 

dredged and fill material, into "navigable waters" without a federal permit3 and 

l 547 u.s. 715 (2006). 2 Clean Water Act, 33 U.S. C.§§ 1251, et seq. 

"33 U.S. C. § 1344(a). 

1 
60 

defines the term "navigable waters" as "waters of the United States." 4 In Rapanos 

v. United States, the Army Corps of Engineers ("Corps") claimed the Clean Water 

Act covered the shallow wetlands on John Rapanos's Michigan lots. 5 When he 

graded the lots for construction, Corps officials cited Mr. Rapanos for filling 

"navigable waters" without a permit in violation of the Clean Water Act. 6 The 

district court found Mr. Rapanos liable because the wetlands on his property 

bordered a manmade drainage ditch that flowed intermittently through a series of 

conduits to a navigable-in-fact watercourse miles away. 7 The Sixth Circuit Court of 

Appeals upheld the district court on the theory that any hydrological connection 

with a traditional navigable water was sufficient for federal jurisdiction, no matter 

how slight.R The U.S. Supreme Court reversed the Sixth Circuit, however, 

invalidating this expansive interpretation of the Clean Water Act. 9 

Five of the nine Justices ruled the Corps had gone too far and could not 

regulate all waters based solely on a hydrological (or tributary) connection to a 

downstream navigable-in-fact waterway. 

Justices Scalia, Thomas, Alito, and Roberts, determined the language, 

structure, and purpose of the Clean Water Act limited federal authority to 

"relatively permanent, standing or continuously flowing bodies of water" commonly 

recognized as "streams, oceans, rivers and lakes" directly connected to traditional or 

navigable-in-fact waterways. 10 The Scalia plurality would also authorize federal 

regulation of wetlands physically abutting these water bodies, but only if they have 

a continuous surface water connection whereby the wetland and water body are 

literally "indistinguishable." 11 

Although Justice Kennedy joined the four-justice plurality in rejecting federal 

regulation of any and all tributaries to navigable-in-fact waterways, providing a 

five-member majority in favor of Mr. Rapanos, he proposed a different standard for 

determining "waters of the United States" pursuant to the Clean Water Act. Under 

a "significant nexus" 12 test, Justice Kennedy would allow the federal government to 

regulate a wetland if it significantly affects a navigable-in-fact waterway.L1 

According to Justice Kennedy, this approach would exclude from federal regulation 

'33 U.S. C. § 1362(7). 5 Rapanos, 547 U.S. at 719, 729-30 (2006). 

G Jd. 

7 See United States v. Rapanos, 190 F.Supp. 2d lOll, 1013 (E.D. Mich. 2002). 

'See United States v. Rapanos, 376 F.3d 629, 642 (6th Cir. 2004). See id. at 639. 

9 Rapanos, 517 U.S. at 757. 

10 !d. at 716, 739. 

"!d. at 755. 

12 !d. at 759 (Kennedy, J., concurring). 

I3 !d. at 780. 
61 

remote drains, ditches, and streams (and adjacent wetlands) with insubstantial 

flows and only speculative evidence of a "significant nexus."I4 

The four Justices in the dissent (Stevens, Souter, Ginsburg, and Breyer) took 

the view that the Corps could regulate essentially any feature that advanced the 

statutory goal of maintaining the "chemical, physical, and biological integrity of the 

Nation's waters."I5 The dissent would therefore authorize federal regulation of the 

entire hydrological chain on the premise that virtually all waters are interconnected 

and therefore affect the integrity of the Nation's waters. 

The 2015 WOTUS rule was adopted in putative reliance on the Kennedy 

"significant nexus test," but in effect the rule incorporated the view of the Rapanos 

dissent authorizing the regulation of virtually all waters based on their 

interconnectedness.IG 

PROBLEMS WITH THE 2015 WOTUS RULE 

The 2015 WOTUS rule17 is unprecedented. Under the guise of redefining the 

statutory term "waters of the United States" under the Clean Water Act, as 

interpreted by the Supreme Court in Rapanos, the Army Corps of Engineers and 

the Environmental Protection Agency expanded the scope of their own authority to 

encompass nearly all waters and huge swaths of land throughout the country. 

These agencies arrogated to themselves a virtually limitless power to regulate local 

land and water use in direct opposition to congressional intent, judicial precedent, 

and constitutional constraints. The implications of this rule for national land-use 

regulation, executive power, and constitutional norms cannot be overstated. 

The 2015 WOTUS rule defines navigable "waters of the United States" 

expansively to include: 

1. All waters which are or were or may be used in interstate 

or foreign commerce; 

2. All interstate waters; 

3. The territorial seas; 

4. All impoundments of any "waters of the United States;" 

5. All tributaries to waters 1-3. A "tributary" means a water 

that contributes flow directly or through another water 

l<Jd. at 779-81. 

15Jd. at 787. (Stevens, J., dissenting). 

'" See Technical Support Document for the Clean Water Rule: Definition of Waters of the United 

States (May 27, 2015). 

!7 Clean Water Rule: Definition of 'Waters of the United States. 80 Fed. Reg. 37054 (June 29, 2015). 

3 
62 

(including any impoundment), to waters 1-3, that has 

physical indicators of a bed and bank and an ordinary high 

water mark. A tributary may be natural or man-made; 

6. All waters adjacent to waters 1-5. "Adjacent" means 

bordering, contiguous, or neighboring. "Neighboring" 

means within 100 feet of the ordinary high water mark of 

waters 1-5. And, all waters within the 100-year floodplain 

of waters 1-5 and not more than 1,500 feet from the 

ordinary high water mark. Also, all waters within 1,500 

feet of the high tide line of waters 1-3; 

7. All of the following waters that have been determined on a 

case-by-case basis to have a significant nexus to waters 1-3: 

prairie potholes, Carolina and Delmarva bays, pocosins, 

western vernal pools, and Texas coastal prairie wetlands. 

"Significant nexus" means that a water, alone or in 

combination with similarly situated waters in the region, 

significantly affects the chemical, physical, or biological 

integrity of waters 1-3. "Significant" means more than 

speculative or insubstantial and includes effects on any of 

nine factors; 

8. All waters located within the 100-ycar floodplain of waters 

1-3 and all waters within 4,000 feet of the high tide line or 

ordinary high water mark of waters 1-5 when they have a 

significant nexus to waters 1-3; and, 

9. Some waters arc excluded from federal regulation under the 

Final Rule. 18 

Attesting to the remarkable sweep of the WOTUS rule, and its onerous effect 

on the regulated public, the rule was immediately challenged by 31 states and 

approximately 70 other parties representing industry, landowners, ranchers, 

farmers, builders, and others. The parties challenged the rule on several grounds, 

some of which I summarize here. 

Illegal Inclusion of All Tributaries 

The 2015 WOTUS Rule defines "waters of the United States" to include all 

tributaries with a bed and bank and ordinary high water mark. In Rapanos, however, 

a majority of the Supreme Court held the term "waters of the United States" does not 

include all tributaries. See plurality opinion, Scalia, J. (Rejecting the regulation of 

IS !d. at 37104-37106. 

4 
63 

tributaries based on an ordinary high water mark because "[t]his interpretation 

extended 'the waters of the United States' to virtually any land feature over which 

rainwater or drainage passes and leaves a visible mark--even if only 'the presence of 

litter and debris."'19 See also Justice Kennedy's concurrence (Rejecting categorical 

regulation of tributaries with an ordinary high water mark because "the breadth of 

this standard ... [would] leave wide room for regulation of drains, ditches and 

streams remote from any navigable-in-fact water and carrying only minor water 

volumes toward it .... ").20 

Overbroad Definition of Adjacent Waters 

It is axiomatic that if the regulation of all tributaries is invalid then the 

categorical regulation of all waters adjacent to such tributaries is also invalid. See 

Kennedy concurrence (Holding that the overly broad regulation of all tributaries 

"precludes its adoption as the determinative measure of whether adjacent wetlands 

are likely to play an important role in the integrity of an aquatic system comprising 

navigable waters as traditionally understood. Indeed, in many cases wetlands 

adjacent to tributaries covered by this standard might appear little more related to 

navigable-in-fact waters than were the isolated ponds held to fall beyond the Act's 

scope in SWANCC21.").22 

Lack of Scientific Evidence 

The distance-based definitions on which the rule relies fail for lack of 

evidentiary support. The Agencies' only explanation for this approach is that the 

various distances are "reasonable and practical boundar[ies]," consistent with 

unspecified "experience" and "the implementation value of drawing clear lines."23 

But the Agencies' own experts specifically rejected the Corps and EPA's distancebased approach, explaining that "the available science supports defining adjacency 

or determination of adjacency on the basis of functional relationships, not on how 

close an adjacent water is to a navigable water." 24 Nothing in the record explains, 

for example, why a 1,500 or "a 4,000 foot standard is scientifically supportable."25 As 

the District of North Dakota explained, "[w]hile a 'bright line' test is not in itself 

arbitrary, the Rule must be supported by some evidence why a 4,000 foot standard 

is scientifically supportable. On the record before the court, it appears that the 

standard is the right standard [only] because the Agencies say it is."2G 

19 Rapanos, 54 7 U.S. at 725. 

2o Id. at 781. 21 Solid Waste Agency of Northern Cook Connty v. U.S. Army Corps of Engineers. 531 U.S. 159 

(2001)(SWANCC), 

22 Rapanos, 547 U.S. at 781-82. 2" 80 Fed. Reg. at 37,085·91 24 Letter from Science Advisory Board to Gina McCarthy, EPA-SAB-14·007, at *2-3 (Sept. 30, 2014). 25 District of North Dakota Preliminary Injunction at 13. 

zs Id. 

5 
64 

According to a detailed Bloomberg article, 27 top officials at the Corps of 

Engineers warned the WOTUS rule was shoddy and ill-advised. "To briefly 

summarize: our technical review ... indicate[s] the [C]orps data provided to EPA 

has been selectively applied out of context, and mixes terminology and disparate 

datasets. In the [C]orps' judgment, the documents contain numerous inappropriate 

assumptions, with no connection to the data provided, misapplied data, analytical 

deficiencies, and logistical inconsistencies." Maj. Gen. John Peabody, Deputy 

Commanding General for Civil and Emergency Operations. 

The article concludes with this statement: "The documents reveal a 

dysfunctional process within and between the agencies, where political officials 

were making decisions over the vigorous objections and against the findings of 

agency staff, without taking the time to address the concerns," Don Parrish, the 

[American Farm Bureau's] senior regulatory relations director, told Bloomberg BNA 

in an e-mail. "They show an 'ends justify the means-get it done now, no matter 

what' mentality that is not appropriate for agency rulemaking on such an important 

issue.2s 

Invalid Inclusion oflsolated Waters 

The WOTUS rule purports to regulate all waters within 4,000 feet of another 

jurisdictional water if it has a "significant nexus" to an interstate water or 

navigable-in-fact water. This necessarily includes "isolated waters" which the 

Supreme Court held in SWANCC cannot be regulated under the Clean Water Act. 29 

In Rapanos all nine justices acknowledged that SWANCC precluded the regulation 

of isolated water bodies. See, e.g., Scalia, J., for the plurality (In SWANCC "we held 

that 'nonnavigable, isolated, intrastate waters,' 0-which, unlike the wetlands at 

issue in Riverside Bayview, did not 'actually abu[t] on a navigable waterway,' 0- were not included as 'waters of the United States."');30 (Kennedy, J.: "Congress' 

choice of words creates difficulties, for the Act contemplates regulation of certain 

'navigable waters' that are not in fact navigable. O Nevertheless, the word 

'navigable' in the Act must be given some effect. Thus, in SWANCC the Court 

rejected the Corps' assertion of jurisdiction over isolated ponds and mudflats 

bearing no evident connection to navigable-in-fact waters."); 31 and, see Stevens, J. 

(dissent, recognizing isolated water bodies are not jurisdictional under SWANCC).32 

27 "Support Documents for Water Rule 'Flawed:' Corps Memo," dated July 28, 2015. 

zs Id. 

29 SWANCC, 531 U.S. at 172. 

30 Rapanos, 54 7 U.S. at 726. 

31 ld.at 779. 

32 Id. at 795. 

6 
65 

Failure to Provide Notice and Comment 

Federal agencies must conduct rule-making in accordance with the 

Administrative Procedure Act which requires public notice of substantive rule 

changes and an opportunity for public comment on those changes.33 

Among other things, the Final 2015 WOTUS rule substantially changed the 

category of "adjacent waters" from the Proposed Rule by adding a definition of 

"neighboring" that includes: (1) all waters located within 100 feet of the ordinary 

high water mark of certain waters; (2) all waters within the 100-year floodplain and 

1,500 feet of the ordinary high water mark of certain waters; and (3), all waters 

located within 1,500 feet of the high tide line of certain waters. 

The WOTUS rule substantially changed the category of "other waters" from 

the Proposed Rule by aggregating normally isolated waters to determine if they will 

have a "significant nexus" with downstream navigable-in-fact-waters including: 

Prairie potholes; Carolina and Delmarva bays; pocosins; western vernal pools in 

California; and, Texas coastal prairie wetlands. 

The WOTUS rule also substantially changed the category of "other waters" 

from the Proposed Rule by allowing case-by-case analysis of all waters within 4,000 

feet of any other covered water. 

And, the WOTUS rule substantially changed the case-by-case analysis for 

determining a "significant nexus" from the Proposed Rule by defining such a nexus 

based on the effect of any one of nine factors including: (i) sediment trapping; (ii) 

nutrient recycling; (iii) pollutant trapping, transformation, filtering, and transport; 

(iv) retention and attenuation of flood waters; (v) runoff storage; (vi) contribution of 

flow; (vii) export of organic matter; (viii) export of food resources; and, (ix) provision 

of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, 

spawning, or use as a nursery area) for species located in certain waters. 

None of these changes were subject to public notice and comment. 

Exceeding the Commerce Power 

In SWANCC,81 the Supreme Court recognized that federal regulation of small 

water bodies, such as ponds and mudflats, likely exceeded the scope of the 

commerce power as limited by that court's decisions in United States v. Lopez-15 and 

United States v. Morrison.36 The Supreme Court raised similar concerns in 

ss 5 U.S. C. § 553(b)&(c). 

3-t SWANCC, 531 U.S. at 173. 

35 514 U.S. 549 (1995), 

36 529 U.S. 598 (2000). 

7 
66 

Rapanos over the Corps' broad interpretation of tributaries and adjacent wetlands. 

"Likewise, just as we noted in SWANCC, the Corps' interpretation stretches the 

outer limits of Congress's commerce power." 37 But the WOTUS rule goes even 

further than the interpretation of"waters of the United States" advanced in 

SWANCC and Rapanos to encompass waters, and even normally dry land (e.g, 

within the 100-year floodplain), with absolutely no connection to navigable waters 

or interstate commerce in clear violation of constitutional authority. 38 

Usurpation of State Authority 

One of the more egregious problems with the WOTUS rule is its flagrant 

disregard for principles of federalism inherent in the constitutional structure and 

expressly acknowledged by Congress in the text of the Clean Water Act. 

The WOTUS rule extends federal jurisdiction so far into local land and water 

resources that it necessarily undermines State power, in violation of the Tenth 

Amendment. The Tenth Amendment Provides that "[t]he powers not delegated to 

the United States by the Constitution ... are reserved to the States respectively, or 

to the people."39 Congress did not mince words on the role of the States in maintaining 

the integrity of the Nation's waters: "It is the policy of the Congress to recognize, 

preserve and protect the primary responsibilities and rights of the States to 

prevent, reduce, and eliminate pollution, to plan the development and use 

(including restoration, preservation, and enhancement) of land and water 

resources .... "40 Rather than preserve and protect these rights and responsibilities, 

the WOTUS Rule eviscerates them. 

The Clean Water Act is clear; to achieve the act's objective, Congress 

intended to rely on the States, not usurp their power. Maintaining the integrity of 

the Nation's waters would necessarily involve shared responsibilities. The statutory 

text suggests the Federal Government would regulate downstream navigable 

waters (as it has historically done) while the States regulate upstream nonnavigable waters (as they have historically done). Moreover, Congress would not 

dictate to the States but would defer to the States to "prevent, reduce, and eliminate 

pollution" in their land use planning. 

This approach to "cooperative federalism" provides an equitable allocation of 

scarce regulatory resources while preserving and protecting the acknowledged 

rights and responsibilities of the States to control local land and water resources in 

"'Rapanos, 54 7 U.S. at 738 (Scalia, J., for the plurality 38 For a more detailed analysis ofthis argument, 1 refer the committee to my testimony at the Joint 

Hearing on Impacts of the Proposed Waters of the United States Rule on Local and State 

Governments, House Committee on Transportation and Infrastructure and Senate Committee of 

Environment and Public Works, dated February 4, 2015. 

39 U.S. Canst. amend. X. 

<o 33 U.S. C. § 1215(b)(emphasis added). 

8 
67 

furtherance of the balance of power established by the Framers. And, of equal 

importance, it demonstrates Congress' recognition that it has limited constitutional 

power to regulate local land and water resources. 

However, the 2015 WOTUS rule only gives lip service to this congressional 

mandate suggesting that the States are adequately protected because they can 

impose more rigorous standards on pollutant discharges than the federal 

regulations. But this is an empty power because it still subjects the States' 

traditional land use authority to federal mandates. This robs the States of any 

meaningful control over their land and water resources that both Congress and the 

Framers explicitly sought to protect. 

Permitting respondents to claim federal jurisdiction over ponds 

and mudflats ... would result in a significant impingement of the 

States' traditional and primary power over land and water use. 

See, e.g., Hess v. Port Authority Trans-Hudson Corporation, 513 

U.S. 30, 44, 130 L.Ed.2d 245, 115 S. Ct. 394 (1994) ("Regulation of 

land use [is] a function traditionally performed by local 

governments"). Rather than expressing a desire to readjust the 

federal-state balance in this manner, Congress chose to "recognize, 

preserve, and protect the primary responsibilities and rights of 

States ... to plan the development and use ... of land and water 

resources .... " 33 U.S.C. §1251(b). We thus read the [Clean Water 

Act] as written to avoid the significant constitutional and 

federalism questions raised by respondents' interpretation, and 

therefore reject the request for administrative deference. 41 

These arguments are not academic. The courts relied on these 

arguments, and others, to enjoin the rule from active enforcement. They 

serve as a caution to the Corps and EPA in revising a new WOTUS rule. 

THE COURTS STAY THE WOTUS RULE 

Many state and private plaintiffs challenged the 2015 WOTUS rule 

in the federal district and appellate courts. Some of the district court cases 

are still pending while others were dismissed when the Sixth Circuit Court 

of Appeals asserted sole jurisdiction to hear any challenges to the WOTUS 

rule. None of these courts has issued a definitive ruling on the validity of 

the rule. However, two courts issued stays of the rule pending further 

litigation on the merits. 

The first court to issue a stay was the District Court of North Dakota 

where 13 States brought suit to overturn the rule. 42 That court issued a stay 

(or preliminary injunction) within the plaintiff States based on a number of 

" 1 SWANCC, 531 U.S. at 174. 4' North Dakota v. U.S. E.P.A., 127 F.Supp.3d 1047 (DND 2015). 

9 
68 

factors, including: (1) the likelihood the States will succeed on the merits; 

(2) the potential for irreparable harm to the States if the rule is not stayed; 

(3) the balance of harms; and ( 4), the public interest. 

The district court ruled the States are likely to succeed on the merits 

because the rule appears overbroad and does not satisfy the Kennedy 

"significant nexus" test as set forth in Rapanos. 43 And further, the inclusion 

of all tributaries and the distance limitations is likely not supported by 

scientific evidence or authorized by the Clean Water Act. 44 Also, the court 

held the final rule was not likely a proper outgrowth of the proposed rule 

thus depriving the States proper notice and opportunity for comment under 

the rule-making process set forth in the Administrative Procedure Act. 45 

With respect to the second factor, the court held the WOTUS rule will 

cause the States irreparable harm in two respects. First, if the rule is 

implemented it will diminish the States' "traditional and primary power 

over land and water use" resulting in a loss of sovereignty over intrastate 

waters. 46 Second, the States will suffer uncompensated monetary loss from 

the increased costs associated with complying with a likely invalid rule. 47 

Finally, the court weighed the balance of harm to the States against 

the benefit ofthe rule to the public and concluded that while a small portion 

of the public would benefit from the greater certainty the WOTUS rule 

would provide, "[a] far broader segment of the public would benefit from the 

preliminary injunction because it would ensure that federal agencies do not 

extend their power beyond the express delegation from Congress."48 

Therefore, "the greater public interest favors issuance of the preliminary 

injunction."49 

In the Sixth Circuit, 18 additional states challenged the WOTUS rule 

calling for the Court to stay the rule and halt its enforcement nationwide.5D 

That court applied the same analysis as did the District of North Dakota 

and with the same result. The court concluded the States would likely 

prevail on their arguments that the WOTUS rule is not supported by the 

scientific evidence, the Kennedy "significant nexus" test is not met, and the 

rule exceeds statutory authority. 51 Moreover, the Sixth Circuit stated: 

"What is of greater concern to us, in balancing the harms, is the burdenpotentially visited nationwide on governmental bodies, state and federal, as 

•a I d. at 1056. 

•• Jd. at 1056-1057. 45 Id. at 1058. 

46 ld. at 1059. 

47Jd. 

48 Id. at 1060. 

49 I d. 

5o In re E.P.A., 803 F.3d 804 (6th Cir. 2015). 

51 ld. at 807-808. 

10 
69 

well as private parties-and the impact on the public in general, implicated 

by the Rule's effective redrawing jurisdictional lines over certain of the 

nation's waters."52 The court concluded, therefore, that "the sheer breadth 

of the ripple effects caused by the Rule's definitional changes counsels 

strongly in favor of maintaining the status quo for the time being." 

Accordingly, the 2015 WOTUS rule is stayed nationwide. 

THE EFFECT OF THE STAY 

The Sixth Circuit addressed the effect of its stay by addressing the 

court's rationale for granting the stay and explaining the necessary result. 

A stay allows for a more deliberate determination whether this 

exercise of Executive power, enabled by Congress and explicated 

by the Supreme Court, is proper under the dictates of federal law. 

A stay temporarily silences the whirlwind of confusion that springs 

from uncertainty about the requirements of the new Rule and 

whether they will survive legal testing. A stay honors the policy of 

cooperative federalism that informs the Clean Water Act and must 

attend the shared responsibility for safeguarding the nation's 

waters. See 33 U.S.C. § 1251(b) ("It is the policy of Congress to 

recognize, preserve, and protect the primary responsibilities and 

rights of the States to prevent, reduce, and eliminate pollution."). 

In light of the disparate rulings on this very question issued by 

district courts around the country--enforcement of the Rule having 

been preliminarily enjoined in thirteen states 4-a stay will, 

consistent with Congress's stated purpose of establishing a 

national policy, 33 U.S.C. § 1251(a), restore uniformity of 

regulation under the familiar, if imperfect, pre-Rule 

regime, pending judicial review.53 

The problem with this approach is that the "pre-Rule regime,"which relied on 

the 1977/1988 regulations and the 2008 Rapanos Guidelines, is not much better 

than the 2015 WOTUS rule. To the contrary, the "pre-Rule regime" lead to the very 

excesses and inconsistencies the Corps and EPA claimed would be remedied with 

the ill-fated WOTUS rule. 

The Corps and the EPA have a history of exceeding their authority under the 

Clean Water Act. Some of this can be attributed to ambiguity in the law, but the 

primary problem is willful overreach. 

According to the General Accountability Office (GAO), local districts of the 

Corps "differ in how they interpret and apply the federal regulations when 

52 Id. 

53 Id. at 808 (emphasis added). 

11 
70 

determining what wetlands and other waters fall within the [Clean Water Act's] 

jurisdiction."54 But worse than the inter-district inconsistencies are the intradistrict inconsistencies. The GAO reports that even Corps staff working in the 

same office disagree on the scope of the Act and that "three different district staff' 

would likely make "three different assessments" as to whether a particular water 

feature is subject to the Clean Water Act. 55 

But this is by design. The Corps and EPA have not strived for clarity. To the 

contrary, federal enforcement practices differ from district to district because '"the 

definitions used to make jurisdictional determinations' are deliberately left 

'vague."'5G This allows federal officials the freedom to assert the broadest possible 

interpretation of Clean Water Act jurisdiction, on a case-by-case basis, so as to 

avoid any facial challenge to their regulatory authority. In fact, the 2008 Rapanos 

Guidelines encourage this sort of ad hoc analysis. 

Examples of vague "pre-Rule" regulatory definitions abound. The definition 

of"wetland" is so broad it encompasses areas that are wet only "for one to two 

weeks per year."57 In other words, a "wetland" may be mostly dry land. 58 A more 

ironic characterization of a wet land would be hard to conceive. Under this 

definition, approximately 100,000,000 acres of wetlands are located in the lower 48 

states-an area the size of California. 59 About 75% of these wetlands arc located on 

private land_ so Wetlands cover half the State of Alaska.61 Next to Alaska, the states 

with the largest wetland acreage are Florida (11 million), Louisiana (8.8 million), 

Minnesota (8.7 million), and Texas (7.6 million).G2 

Likewise, under the "pre-Rule regime," the Corps and EPA interpret the term 

"discharge" to include the mere movement of soil in the same area without any 

addition of material.63 Contrary to ordinary use and commonsense, "adjacent" 

54 U.S. General Accounting Offi.ce, Report to the Chairman, Subcommittee on Energy Policy, Natural 

Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, 

Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in 

Determining Jurisdiction, GA0-04-297 (Feb. 2004)(GAO Report). 

55 Id. at 22. 

56 Rapanos v. Urdted States, 547 U.S. 715, 727, 781 (2006) (citing GAO Report). 

57 Gordon M. Brown, Regulatory Takings and Wetlands: Comments on Public Benefits and 

Landowner Cost, 21 Ohio N.U. L. Rev. 527, 529 (1994). 

58 See United States v. Mills, 817 F. Supp. 1546, 1548 (N.D. Fla. 1993). 

59 See http://water.epa.gov/tvpe/wetlands/vital status.cfm (last visited Nov. 2, 2011). 60 See Jonathan H. Adler, Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause 

Jurisprudence and the Limits of Federal Wetland Regulation, 29 Envtl. L.1, 26, 52 (1999). 

61 See http://water.epa.gov/tvpe/wetlands/vital status.cfm (last visited Nov. 2, 2011). 

62 Id. 

63 See Borden Ranch Partnersh,:p u. United States Army Corps of Engineers, 261 F.3d 810 (9th Cir. 

2001). See also, Duarte Nursery v. United States Army Corps of Engineers, 2016 WL4717986 (EDC 

2016). 

12 
71 

becomes "neighboring"6-Lsometimes miles away-and "tributary" includes "swales" 

and "storm drains."65 The 2008 Rapanos Guidelines add to the confusion because 

they are inconsistent with the Rapanos decision; unduly expanding the Scalia 

plurality and Justice Kennedy's "significant nexus" test. 

This jurisdictional ambiguity is more than a theoretical concern. Regulatory 

uncertainty permeates the enforcement decisions of the Corps and EPA. Those 

decisions become the basis for imposing multimillion dollar penalties and seeking 

criminal prosecution. 

Nevertheless, the Administration appears to endorse this approach. On 

November 16, 2017, the Corps and EPA issued a joint press release announcing 

they would soon publish a rule-making in the Federal Register that would delay the 

effective date of the 2015 WOTUS rule for two years. This would codify the result of 

the Sixth Circuit stay and reinstate the prior regulatory scheme that has proved so 

problematic. 

THE EFFECT OF THE EXECUTIVE ORDER 

The aforementioned two-year delay in the effective date for the 2015 WOTUS 

rule is to allow the agencies time to revise and reissue the WOTUS rule in accord 

with the Presidential Executive Order on Restoring the Rule of Law, Federalism, 

and Economic Growth, by Reviewing the 'Waters of the United States: Rule, dated 

February 28, 2017. Legally, this is a prudent move. As noted above, although no 

court has definitively ruled on the validity of the 2015 WOTUS rule, a district court 

and an appellate court have determination that the rule is likely invalid and cannot 

stand. This is a sufficient basis for replacing the rule more in keeping with the 

statute, Supreme Court precedent, and constitutional constraints on federal power. 

The key to successfully revising the rule to adhere to the rule-of-law, while 

protecting economic growth, is to focus the rule on a proper interpretation of the 

Rapanos decision. The 2015 WOTUS rule relied on an exaggerated interpretation of 

Justice Kennedy's "significant nexus" test which the North Dakota Court and the 

Sixth Circuit both found suspect. The President's Executive Order properly directs 

the Corps and EPA to revise the WOTUS rule "in a manner consistent with the 

opinion of Justice Scalia" in Rapanos, which was adopted by four Justices, as 

opposed to Justice Kennedy's lone concurring opinion. The Scalia plurality is more 

in keeping with the original intent of Congress to protect and preserve the 

traditional and primary power of the States to regulate local land and water 

resources free of the dictates of federal officials. And, it's the only opinion in the 

Rapanos decision consistent with the Supreme Court's standard for interpreting 

split decisions. In defense of this view, I have written a law review article entitled, 

'"33 CFR 328.3(c). 

65 Rapanos, 547 U.S. 722 (J. Scalia). 

13 
72 

Running Down the Controlling Opinion in Rapanos v. United States, which is 

available for reading at SSRN.com66 Here is a summary of the article: 

In Rapanos v. United States, the Supreme Court sought to define 

the scope of the Clean Water Act.G7 The Court split on a 4-1-4 

vote.GS Consequently, the lower courts must decide the controlling 

opinion. In putative reliance on the Supreme Court's standard for 

interpreting fractured decisions, set forth in Marks v. United 

States,69 the circuit courts have either adopted the lone Kennedy 

concurrence or rejected Marlls as unworkable in favor of an 

either/or test allowing the government to establish federal 

jurisdiction under either the Kennedy concurrence or the Scalia 

plurality in Rapanos. In each case, the circuit court either 

misconstrued Marks or misinterpreted Rapanos. This article 

makes the case that Marks is readily adaptable to the Rapanos 

decision and the Scalia plurality is controlling. Whenever the 

plurality would find a jurisdictional water, Justice Kennedy would 

agree because the plurality test is a logical subset of Justice 

Kennedy's broader "significant nexus" test. Together, the four 

Justices in the plurality and Justice Kennedy constitute a fivemember majority-in accordance with Marks. 

THE REVISED WOTUS RULE (A PROPOSAL) 

Even if the Corps and EPA draft a WOTUS rule that textually achieves the 

President's laudable goal of balancing the rule-of-law with economic growth, and 

satisfies all the appropriate statutory, judicial, and constitutional standards, it will 

all be for naught if these agencies do not fairly and consistently apply the rule. 

What's really needed in the short and long term is agency restraint, whatever rule 

the agencies adopt. The problem doesn't lie only with the regulatory language, but 

with overzealous enforcement. Government officials should focus on protecting core 

water resources instead of pushing the envelope on federal power by prosecuting 

minor or imaginary infractions such as digging a drainage ditch, creating a stock 

pond, plowing farmland, or building a house in a built-out subdivision, like it does 

now under the "pre-Rule regime.". I fear these agencies arc incapable, 

institutionally, of reining in abusive agency action. 

GG https://papers.ssrn.com/sol3/papers.cfm?abstract id-2983915 

67 Rapanos v. United States, 547 U.S. 715, 730-32 (2006). 

Gs !d. at 718. 

69 Marks v. United States, 430 U.S. 188, 193 (1977). 

14 
73 

The ultimate remedy for this problem is a clear, unambiguous statutory 

definition of "waters of the United States" that cannot be misunderstood, 

misinterpreted, or misapplied through subsequent regulation, guidance, or practice. 

But, a regulatory "fix' is better than no "fix" at all. Mter long study of the 

Scalia opinion and review of many different proposals for a new WOTUS rule, I 

suggest this simplified approach to defining "waters of the United States" under the 

Clean Water Act. 

Amend 33 C.F.R. § 328.3 to read: 

a. The term "waters of the United States" includes ONLY: 

1. Those waters that are navigable-in-fact and currently 

used or susceptible to use in interstate or foreign commerce. 

These waters include the territorial seas. 

2. Permanent, standing or continuously flowing streams, 

rivers, and lakes directly connected to navigable-in-fact waters 

described in a.l. Continuously flowing means an uninterrupted 

flow except in extreme weather conditions such as drought. These 

waters do not include groundwater or channels through which 

waters flow intermittently or ephemerally, or channels that 

provide only periodic drainage, such as from rainfall. 

3. Those wetlands that directly abut and are 

indistinguishable from the waters described in a.l. and a.2. 

Wetlands are those areas inundated or saturated by surface or 

groundwater at a frequency and duration sufficient to support, 

and that under normal circumstances do support, a prevalence of 

vegetation typically adapted for life in saturated soil conditions. 

Wetlands generally include swamps, marshes, and bogs. 

Wetlands are indistinguishable from the waters described in a.l. 

and a.2. when the wetlands and waters have merged so there is 

no clear demarcation between the two. 

This definition would reduce federal regulation of local waters that the States 

can and should regulate while providing a measure of certainty to the regulators 

and regulated public consistent with the Scalia opinion, the text of the Clean Water 

Act, the President's Executive Order, and constitutional limitations. 

WHAT ABOUT JURISDICTION? 

It is certain that the new WOTUS rule will be challenged in court as too 

narrow or too broad. It is essential therefore that affected parties know where to 

15 
74 

bring such challenges-in the district courts or the courts of appeals. This is still an 

open question but one that will soon be answered by the Supreme Court in National 

Association of Manufacturers v. DOD (No. 16-299), to which PLF is party. 

One of the most fundamental rights of American citizens is the right to seek 

redress from illegal government action in a court of law. But the federal government 

has an arsenal of weapons it wields to deny or curtail this right. Nowhere is this 

more prevalent than in the government's attempts to stifle landowner suits 

challenging federal agency action under the Clean Water Act. 

When a landowner challenges the federal government's legal authority to 

regulate local land or water use under the act, the government response is as 

predictable as night follows day. First, the government attacks the landowner's 

standing to bring the suit arguing the landowner suffered no unique harm from the 

agency's illegal conduct. If that does not work, the government argues the 

landowner has not exhausted all administrative remedies or the case is not yet ripe 

for judicial review because the agency action iR not final. Failing that, the 

government may argue the courts owe the agency complete deference in its 

interpretation of the law and its "expert opinions" should not be disturbed. 

The EPA employed these tactics against the Sacketts70 when they sought 

judicial review of an EPA "compliance order" directing the Sacketts to cease all 

work on the construction of a modest home they intended to build on an apparently 

dry half-acre lot in a built-out subdivision that no ordinary person would call a 

navigable "water of the United States." The Corps of Engineers relied on similar 

arguments in seeking dismissal of suits brought by Hawkes Company71 and Kent 

Recycling72 when they went to court to overturn blatantly invalid "Jurisdictional 

Determinations" issued by tho Corps that allowed the government to stop their 

wetland projects the government opposed. 

In each of these cases, the landowners sought only one thing--their 

constitutional right to their day in court. For over forty years, the courthouse doors 

were closed to landowners who simply wanted a court of law to declare whether the 

federal government had the power to dictate the use of their land under the Clean 

Water Act when it was apparent the government had gone too far and exceeded its 

statutory or constitutional authority. This attempt to stifle citizen access to the 

courts is a breach of the public trust. It elevates the subjective values of government 

officials, which are not protected by the constitution, above the rights of American 

citizens, which are protected by the constitution. In short, when illegal government 

7o Sackett v. EPA, 566 U.S. 120 (2012). 71 U.S. Army Corps of Engineers v. Haw/,es Co., 136 S.Ct.1807 (2016). 

7Z Kent Recycling Services v. U.S. Army Corps of Engineers, 136 S.Ct.2427 (2016). 

16 
75 

action is exempt from judicial review, government officials become a law unto 

themselves. 

Fortunately, in each of these PLF cases--Sachett, Hawhes, and Kent 

Recycling--the U.S. Supreme Court unanimously held that landowners could 

exercise their right to seek redress in the courts in the face of overreaching 

government actions under the Clean Water Act. But this was not enough to deter 

the government from seeking to curtail judicial review of the Corps' and EPA's 

controversial WOTUS rule. 

When PLF challenged the rule in district court, representing eleven 

landowners from seven states, the government sought to have the case dismissed 

claiming the proper venue for such a challenge is the Court of Appeals. This would 

have the effect of narrowing the window for challenging the WOTUS rule, and rules 

like it that define federal jurisdiction under the act, to 120 days, instead of the 

usual 6 years afforded review in the district courts. 

Last month, the Supreme Court heard oral argument on this very issue in 

National Association of Manufacturers v. Department of Defense (Case No. 16-299). 

The justices appeared to side with National Association of Manufacturers, PLF, the 

States, and others that the text of the Clean Water Act is clear and does not support 

the government's interpretation. 

Several justices were concerned that the government's interpretation, which 

relies on a "practical reading" of the act, rather than on an "ordinary reading" of the 

act, would cause confusion because no one could rely on the plain text to determine 

when and where they could challenge the WOTUS rule. Chief Justice Roberts 

expressed the concerns raised by PLF that the government's narrow reading would 

harm landowners who may not know for several years whether the WOTUS rule 

even applies to them. They would be cut off from directly challenging the rule, and 

federal jurisdiction, if they missed the short 120-day window the government urged 

on the court. The primary reason the government gave for its crabbed reading of the 

act is that it would be more efficient for the government and the courts if challenges 

to the WOTUS rule were funneled through a single appeals court rather than 

multiple district courts throughout the country. However, the Petitioners countered 

that the Supreme Court held in PLF's Sachett case that administrative efficiency 

and convenience does not trump the People's right to meaningful access to the 

courts to counter overreaching government. 

It is likely the High Court will rule in favor oflandowners and that a decision 

will be issued soon so that the parties are clear about which court has jurisdiction to 

review the WOTUS rule, new or old. 

17 
76 

CONCLUSION 

Once again, I thank the committee for the opportunity to comment on the 

future of the WOTUS rule. The rule affects literally millions of private and public 

landowners nationwide. I commend the committee for its interest in this important 

matter. 

18 

Sincerely, 

M. Reed Hopper 

Senior Attorney 

Pacific Legal Foundation 
77 

Chairman BIGGS. Thank you, Mr. Hopper. I now recognize myself 

for my five minutes of questions. 

Mr. Mehl, since the rule has been stayed, you have a chance now 

to voice your concerns and discuss a mutual path forward for water 

regulations. The question is, do you think water regulations in this 

country need updating? And if so, what revisions do you think 

would be helpful and necessary, particularly in light of Arizona’s 

case? Please turn on your mic. Thank you. 

Mr. MEHL. Yes, absolutely, I think some changes need to be 

made for clarity. At least in Arizona’s case you have a high degree 

of prevalence of dry washes, especially in alluvial wash areas 

where water comes off mountains and sort of spreads out over the 

land, creating a high degree of complexity in analyzing where 

waters are and where waters aren’t with respect to the existing 

rules. 

The 2015 rule resolve ambiguity in preference of total inclusion, 

but there’s a high cost of this. There’s a high cost in terms of what 

you pay for the analysis and just in the overall land taken through 

that rule. Where in Arizona where you have the only short number 

of days of rainfall a year and there just simply isn’t much water 

in the system, you need to be able to use land for its highest and 

best purpose, and that’s the mission of the State Land Department. 

If you have a rule that can show clearly what is and what is not 

included in jurisdiction, then you create a great benefit. And I 

think on the environmental side, you preserve what should be preserved and leave for development what should be higher density to 

prevent further sprawl and other environmental problems. 

Chairman BIGGS. Thank you, Mr. Mehl. 

And, Mr. Chilton, five generations raising cattle in Arizona, 

that’s not an easy thing to do. With these regulations, do you know 

of—besides the couple that you’ve mentioned, your projects on your 

ranch, do you know of other ranchers that have had to abandon 

projects because the permitting process was too expensive and 

time-consuming? 

Mr. CHILTON. I do not know of other ranchers who have had to 

abandon projects. Basically, ranchers avoid having to bump up 

against the EPA and the Corps of Engineers. It’s costly. It’s outrageous that if you want to build a road on your private land and 

drive across a wash that you have to get a permit. And Mr. Hopper’s point about the costs of permitting is outrageous. We need, 

and other ranchers need, a clear definition of a significant nexus 

with a navigable river. Thank you. 

Chairman BIGGS. Thank you. And, Mr. Hopper, my understanding is that the EPA expanded the various definitions of water 

in its rulemaking. Does this potentially increase EPA’s jurisdiction 

to regulate private property? 

Mr. HOPPER. Yes—excuse me. Yes. The EPA claims that their 

new rule only expands three to four percent of the area that they 

previously recognized. However, you have to keep in mind that, as 

I just mentioned in my testimony, that the Supreme Court, particularly Justice Roberts, has already castigated the agencies for exceeding their authority and using a boundless interpretation. So 

this is three to four percent in addition to the boundless interpretation on which they’ve already relied. 
78 

Chairman BIGGS. Have you seen any other federal agencies attempting to expand their jurisdiction like we’re seeing here—— 

Mr. HOPPER. Yes. 

Chairman BIGGS. —at the EPA? 

Mr. HOPPER. Yes. The Fish and Wildlife Service has done the 

same under the Endangered Species Act, and in fact we have a 

case now pending in the Supreme Court to address this very issue 

called Markle v. U.S. Fish and Wildlife Service. 

Chairman BIGGS. Great. Thank you. I’m going to go ahead and 

yield back and recognize the Ranking Member of the subcommittee, 

Ms. Bonamici. 

Ms. BONAMICI. Thank you, Mr. Chairman. 

The Supreme Court plurality decision in Rapanos created an uncertain regulatory environment and the Clean Water Rule as a result of the decision by the EPA and the Army Corps to provide regular—regulatory clarity in light of the Rapanos decision and to better define Waters of the United States. And this effort involved 

considering how to address the two distinct tests in Rapanos, one 

by Justice Kennedy and one by Justice Scalia, about what constitutes a water of the United States. And every federal court of appeals decision to consider this question, including one just two days 

ago in United States v. Robertson in the Ninth Circuit has held 

that Justice Kennedy’s test to define a water of the United States 

is a valid test to apply. 

Now, some have held that either test can be used. However, 

some critics of the Clean Water Rule suggest that Justice Scalia’s 

test should be the exclusive test. The reason federal courts have 

used Justice Kennedy’s test as an appropriate basis for determining what is protected is because of Supreme Court precedent 

describing how plurality decisions should be interpreted. This 

precedent makes clear that Justice Kennedy’s test at a minimum 

should be used and that Justice Scalia’s test should not be the exclusive basis for protection. 

Mr. Kopocis, in light of these federal court decisions, is there any 

legally justifiable reason for using Justice Scalia’s test as an exclusive basis for Clean Water Act coverage? 

Mr. KOPOCIS. No, there is not. When I was at the Agency, our 

Office of General Counsel consulted extensively with the Department of Justice as to how to best interpret the Rapanos case and 

how to apply it, and it was the decision of all of the attorneys involved that the precedent from the Supreme Court was very clear 

as to how to interpret a plurality decision, and that’s been reflected 

in all of the circuit courts to date that have ruled on the issue. 

Ms. BONAMICI. Thank you. And, Mr. Kopocis, now, I’ve heard 

from some Oregonians. They’ve expressed some concern that the 

Clean Water Rule might affect their family farms and how they 

manage their lands. And you heard Mr. Chilton’s story. What 

would you say in response to those who express those concerns? 

Mr. KOPOCIS. We at the Agency in developing the rule took the 

interest of agricultural properties very much into consideration. We 

expanded upon the existing agricultural exclusions from jurisdiction, which is significant because if it’s outside of the jurisdiction 

of the act, you don’t even have to worry about whether a permit 

is required. We preserved all of the existing exclusions from juris-
79 

diction, the ones for prior converted cropland, for example, all the 

permit exclusions or exemptions that are in the act. We even went 

back in response to the comments and specifically excluded the concept of puddles. The agencies had long said that puddles were not 

jurisdictional in their informal documents, but—we didn’t think it 

was necessary to put that in the proposal, but we were criticized 

for not doing so, so we put it back in. So we wanted to make sure 

that there was no ambiguity that things such as puddles, erosional 

features, and the like on agricultural lands or any other land would 

not be jurisdictional. 

Ms. BONAMICI. And you heard the testimony this morning by the 

other witnesses. Are the points that they brought up any different 

from the points that were brought up during the whole Clean 

Water Rule public comment process? 

Mr. KOPOCIS. No. We received, as you said, over a million comments on the rule. They covered every aspect of what the Agency 

should or should not do from the standpoint of the proposal, plus 

also how to make the program work better. We carefully evaluated 

all those comments and we made changes to the rule based on 

those comments. 

Ms. BONAMICI. And could you also address the issue of the 

ephemeral or intermittent streams and elaborate on the role that 

intermittent and ephemeral streams play on the health of downstream waters? And also—and there’s just a minute left, but could 

you also talk about wetlands and, considering the great economic 

and environmental benefits associated with wetlands, what would 

be the consequences of wetland habitat if the Clean Water Rule 

were not implemented? 

Mr. KOPOCIS. Well, intermittent and ephemeral streams are the 

feeder streams of all of our Nation’s rivers, lakes, ponds, et cetera. 

So if they are destroyed or polluted, then you will not be able to 

protect the larger waterbodies because it’s simply impossible. They 

are basically the capillaries of the circulatory system of the hydrologic cycle. So it is important. And it’s also important to note that 

the agencies have long asserted jurisdiction over intermittent and 

ephemeral streams. This is not a concept that was new to the rule. 

As to the value of wetlands, the values of wetlands have been 

stated multiple times and have been calculated, but there are tens 

of millions of people who spend billions of dollars a year in wetlands-related activities, and that can be monetized. There is also 

the value of wetlands that they provide in terms of water quality 

and stormwater retention and reducing floods. If anybody doubts 

the value of wetlands, they don’t need to look farther than the 

State of Louisiana, which is spending billions of dollars to restore 

their coastal Louisiana wetlands to protect the city of New Orleans 

and other communities. 

Ms. BONAMICI. Thank you. My time is expired. Thank you, Mr. 

Chairman. 

Chairman BIGGS. Thank you. The Chair recognizes the Vice 

Chair of the Subcommittee, Mr. Banks from Indiana. 

Mr. BANKS. Thank you, Mr. Chairman, and thank you for holding this important hearing today. After hearing the testimony, I am 

more convinced than ever that the original WOTUS rule is an assault on transparency and accountable government. It was overly 
80 

vague; it ignored the legitimate concerns raised by farmers, ranchers, and business owners; utilized an overly broad interpretation of 

navigable waters unjustified by the underlying statute; and encroached on the rights of States to regulate waters within their jurisdictions. 

I was proud to lead a letter earlier this year to Secretary Pruitt 

in support of the Agency’s decision to review and rescind the original rule while also urging for its permanent withdrawal. I’m glad 

that the Administration is taking this issue seriously by working 

to rollback this rule. 

WOTUS is a great example of what is wrong with our current 

regulatory process. Instead of working with stakeholders and carefully weighing trade-offs, the EPA looked to punish farmers and 

ranchers with no concern as to the rule’s detrimental effects. The 

rule failed to acknowledge any limits on its own authority by ignoring the plaintext of the Clean Water Act, as well as the Supreme 

Court precedent in order to implement its ideological agenda. 

Unelected bureaucrats making laws is a direct threat to our constitutional system of government, and it is our job as elected representatives to make sure that these gross oversteps are stopped. 

So with that, Mr. Hopper, in your testimony you write, quote, 

‘‘On its face, the rule conflicts with the language of the Clean 

Water Act and Supreme Court cases interpreting the act. The rule 

also usurps the traditional power of the States to manage local 

land and water resources and nullifies constitutional limits on federal authority,’’ end quote. Your testimony then goes on into detail 

about the lack of scientific justification for the rule and the regulatory overreach of the EPA. 

So with that, could you provide a brief overview again of the 

ways that the EPA overstepped its authority of the rule? 

Mr. HOPPER. Yes. Thank you for the question. I would refer you 

not merely to my testimony but to what my testimony relies on, 

which is the conclusion of the District Court of North Dakota, as 

well as Sixth Circuit, which arrived at those same conclusions. 

Even if the Kennedy test were to be the applicable standard, these 

courts found that the Agency exceeded the significant nexus standard. 

In addition, it seems obvious to me that, as we look back at this 

2001 SWANCC decision wherein the Supreme Court said that the 

regulation of ponds and mudflats exceeded the traditional power of 

the States to regulate local land and water use and raised constitutional questions that the same thing applies here, so I think if you 

simply look at what the Supreme Court has already said, what the 

two courts said that have stayed the rule, and one’s own reading 

and common sense suggests that this goes beyond any statutory or 

constitutional limit recognized by the Court so far. 

Mr. BANKS. Okay. There are nearly 12,000 farms in my district, 

and since a severe rainstorm could create standing water on every 

farm, it is conceivable that every one of the farms I represent could 

have been subject to this rule. So as a follow-up, what kind of effect—do you agree with that? Could a severe rainstorm create 

standing water on every farm that could be subject to the rule? 

And what kind of effect would that have on agricultural output? 
81 

Mr. HOPPER. In 2012, Pacific Legal Foundation won a unanimous 

Supreme Court victory in what’s called the Sackett case in which 

we challenged the right of an individual or sought to seek the right 

of an individual to go to court to question federal jurisdiction when 

the EPA issues a compliance order. In the opinion that followed in 

our favor, as I said, unanimously, Justice Alito himself said that 

under the Agency’s interpretation of the Clean Water Act it covers 

virtually any wet spot in the country, so I would affirm what you 

just said. 

Mr. BANKS. Okay. Thank you. I yield back. 

Chairman BIGGS. Thank you. The Chair recognizes the 

gentlelady from Hawaii, Ms. Hanabusa. 

Ms. HANABUSA. Thank you, Mr. Chair. Mr. Chair, I’d like to have 

unanimous consent to put into the record a 2013 report from the 

Environmental Law Institute entitled ‘‘State Constraints: State-imposed Limitations on the Authority of Agencies to Regulate Waters 

Beyond the Scope of the Federal Clean Water Act.’’ This assessment found only half of all the States currently protect waters 

more stringently than the federal Clean Water Act requires. This 

report determined that the States are not currently filling the gap 

left by the United States court ruling limiting the Clean Water Act 

and face significant obstacles doing so. 

Chairman BIGGS. Without objection. 

[The information appears in Appendix II.] 

Ms. HANABUSA. Thank you. Mr. Chairman, I’d also like to have 

the letter from sportsmen and women’s groups including the National wildlife Federation, the Theodore Roosevelt Conservation 

Partnership, Trout Unlimited, and the Arizona Wildlife Federation 

and others, all supporting the Clean Water Act protections laid out 

in the Clean Water Act rule and oppose rolling back these protections. They note hunters and anglers broadly celebrated the Clean 

Water Rule because it would help clarify federal jurisdictions over 

Waters of the United States and conserve roughly 60 percent of the 

stream miles and 20 million acres of wetlands at risk of being polluted or destroyed because of the jurisdictional confusion. 

Chairman BIGGS. Without objection. 

[The information appears in Appendix II.] 

Ms. HANABUSA. Thank you, Mr. Chair. 

Mr. Kopocis, I have some questions of you. First of all, you use 

a very interesting phrase called repeal and retreat. So what is it 

that you are so concerned about that the repeal of the rule would 

result with? 

Mr. KOPOCIS. Well, repealing the rule will eliminate the advantages of the rule to provide greater clarity as to what is and is not 

jurisdictional under the Clean Water Act in a post-SWANCC and 

post-Rapanos world. The trouble that the agencies had to deal with 

particularly after Rapanos was that the agencies were told that the 

reliance on waters that the pollution or destruction of which could 

have an adverse effect on interstate commerce was not the test to 

be used. So you had a rule that was out of sync with boththe Scalia 

opinion and the Kennedy opinion. 

So as the Agency attempted to address that—and obviously, 

there’s some disagreement as to how successful the Agency was— 

but the Agency was trying to address that particular issue. So re-
82 

pealing it only restores the very confusion that everybody—and I 

will say everybody, whether it was the environmental community, 

the fish and wildlife community, it was the construction community, it was Republicans, Democrats, State, local, federal. Everybody that came said you’ve got to fix this. And so what they’re 

about to do is unfix it and put it back to those days. 

The reason I refer to retreat is that if there’s going to be an effort 

to form a rule based on the Scalia opinion, it will cover a very narrow set of waters which will eliminate the protection for as much 

as 60 percent of the Nation’s waters. That is a serious, serious retreat from what this Congress enacted in 1972. 

Ms. HANABUSA. Mr. Kopocis, one of the things that I do follow 

is administrative rulemaking, and I did want to confirm with you 

that you had over a million public comments over a period of 207 

days, and the Agency held over 400 public meetings all across the 

country. And you personally attended about 70 of these meetings 

in your prior capacity both in Washington and across the country. 

Can you tell me, after hearing all of this, why you still remain so 

confirmed—so firm in your belief that the rule should not be repealed? 

Mr. KOPOCIS. Well, I think that when we set out to undertake 

it, we also set out to develop what was the best available science, 

and the work of our Office of Research and Development at EPA 

in developing that science was extensive. They originally looked at 

over 1,000 previously peer-reviewed documents. EPA did not create 

any of the science. They then, through the course of review and 

public comment, added another couple hundred documents to that 

report and came up with the conclusion on the interaction of 

waters and how upstream waters and their pollution or destruction 

affects downstream and adjacent waters. And so it was critical that 

the agencies apply the best available science. 

As I said, nobody has brought forward better science or said that 

the science the agencies used was bad. And then the agencies had 

to apply the law as interpreted both from the legislative history 

and the words of the Clean Water Act and as interpreted by the 

three Supreme Court cases where the Court had opined. 

Ms. HANABUSA. Thank you very much, and, Mr. Chair, I yield 

back. 

Chairman BIGGS. Thank you. And the Chair recognizes the gentleman from California, Mr. Rohrabacher. 

Mr. ROHRABACHER. Thank you very much, Mr. Chairman. 

Let me just—we have a cattlemen with us here, Mr. Chilton. Mr. 

Chilton, you are really not in the cattle business; you are in the 

moneymaking business. Everything you do is aimed, just like everybody else. We’re working our jobs, but we really are doing it to 

earn a living. 

But in your earning your living, you’re providing meat for my 

family and I appreciate that, and I’d just like to know that—do 

these water issues impact on the price of the hamburgers that I’m 

buying? 

Mr. CHILTON. I would say yes. The cattle business is one of the 

largest businesses in the Nation, and as it’s impacted adversely by 

bureaucrats at the Environmental Protection Agency and the Corps 

of Engineers, it raises the cattlemen’s costs. And it’s absolutely ab-
83 

surd to think that the rules—the 2015 rules, which were over a 

half-inch thick, are easy to understand or—they’re ambiguous and 

I can’t—— 

Mr. ROHRABACHER. Did you have to hire a lawyer to—— 

Mr. CHILTON. Yes. And consultants and lawyers. 

Mr. ROHRABACHER. Now, let me ask about the consultants and 

lawyers. The fee that you had to pay them, did you add it on to 

the price of the meat for the hamburger that I have to buy for my 

kids? 

Mr. CHILTON. No, it took away from my profits. 

Mr. ROHRABACHER. Okay. Well, that’s good. That’s a fair answer. 

And let me just note if the cattlemen don’t make a profit, my kids 

are going to pay more for their hamburger. And—just like every 

other business unless you take away a profitability. 

Now, let me ask you this. When I was a kid, my family came 

from North Dakota and we’d go back and visit. My dad was a marine, and we’d go back and visit our relatives. And we were relatively poor people, I might add. I remember that there were—on 

these roadsides out in the middle of nowhere there were these gullies, and I guess ditches was a better description of them, and 

they’d fill up with water and my cousins would go out and they 

could actually get some crawfish out of those ditches. 

And let me ask you this. Today, if—according to the rules, if 

something goes on with those ditches and a federal bureaucrat or 

a Federal Government employee now has power, do they have 

power over the water in those ditches? I’d ask that I guess to Ken. 

You go right ahead. 

Mr. KOPOCIS. Thank you for the opportunity to answer that question because one of the items that we did take care of in the rule 

from proposal to final was we excluded virtually all the roadside 

ditches from the jurisdiction. We wanted to make that clear. So the 

answer—I can’t speak to the specifics, but it is highly much more 

likely than not that the ditches you describe would not—— 

Mr. ROHRABACHER. Okay. So the question—I think the question 

we have to have now is do we really want to expand the federal 

definition of what those ditches are like you have just described? 

We took those ditches out? Why do we have the Federal Government making that determination? Shouldn’t that be—I mean, that 

should be left up to local people. Why are local people any more 

less sympathetic with these important issues we’re talking about, 

the cost of this man’s doing business or the cleanliness of the water 

that everybody consumes in that area? Why is the Federal Government more sympathetic to the needs of the people than a local bureaucrat or a local government official? 

Mr. KOPOCIS. Well, that’s—the 2015 rule would have given all of 

that authority to State and local officials. By saying that these 

would not be jurisdictional, the Federal Government would have no 

role. 

Mr. ROHRABACHER. Yes, I—on those ditches? 

Mr. KOPOCIS. On those ditches, yes. 

Mr. ROHRABACHER. But not on these dried-up riverbeds that 

we’re talking about and they will determine what’s a ditch and 

what’s a dried-up riverbed. 
84 

Now, let me just ask one last thing. Of course, when it comes 

down to California, you have to understand we were just in a big 

drought in California. And this was a drought that lasted 3 or four 

years. And in the middle of the drought we had people who were 

so nutty that we actually channeled millions and hundreds of millions of gallons of fresh water into the ocean in order to save a little thing called Delta smelt. Now, let me just note that crawfish 

are really important, I think, but they’re not important enough to 

give all this power to the Federal Government and maybe to have 

some really horrible economic decisions on the industry that provides us our meat. And what we learned in California, sometimes 

people are so crazy and so fanatic about every—about endangered 

species and things such as that that they will hurt the well-being 

of regular people, as they did when they put all of that water, fresh 

water into the ocean in the middle of a drought in California. 

Chairman BIGGS. The gentleman’s time is expired. 

Mr. ROHRABACHER. Oh, thank you very much, Mr. Chair. 

Chairman BIGGS. Thank you. Thank you. The Chair recognizes 

the gentleman from Texas, Mr. Weber. 

Mr. WEBER. Thank you, sir. All right here we go. I’m going to 

read from the President’s executive order. I just can’t hardly be 

quiet anymore if I can get my iPad here working. 

In his order February 28, 2017, section 1 policy, ‘‘It is in the national interest to ensure that the Nation’s navigable waters are 

kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty,’’ which was referred to by the gentlelady from Oregon—we’ll talk about that in 

a minute—‘‘and showing due regard for the roles of Congress and 

the States under the Constitution.’’ Mr. Chairman, I’d like permission—unanimous consent to read into the record the Tenth Amendment—have it placed in the record rather. 

Chairman BIGGS. Without objection. 

[The information appears in Appendix II.] 

Mr. WEBER. Thank you. Mr. Chilton, you said you’ve been farming or you’ve been ranching—your family has for 127 years. Is that 

true? 

Mr. CHILTON. That’s exactly true, yes. 

Mr. WEBER. Are you glad that your great-grandparents, your 

grandparents, and your parents took care of their property and you 

were able to do the same kind of ranching? 

Mr. CHILTON. I am. 

Mr. WEBER. They did a good job, didn’t they? 

Mr. CHILTON. They really did a good job, and we really have an 

excellent ranch with wonderful grasses, and we take care of our 

land. 

Mr. WEBER. It’s in your vested interest, isn’t it? 

Mr. CHILTON. It is. 

Mr. WEBER. You said early in your testimony that you had to get 

a permit and you had to pay a lot of good money to an environmental attorney. Is there any other kind of money, Mr. Chilton, 

than good money? 

Mr. CHILTON. All money is good and—— 

Mr. WEBER. Absolutely. And you’re tired of giving it to a lawyer, 

right? 
85 

Mr. CHILTON. I hate giving it to the lawyers—— 

Mr. WEBER. I don’t—— 

Mr. CHILTON. —and I hate listening to lawyers. 

Mr. WEBER. I don’t blame you at all. 

Mr. Kopocis, I’m going to come to you. Is the Supreme Court ever 

wrong? 

Mr. KOPOCIS. The Supreme Court is the law of the land. There 

are—— 

Mr. WEBER. That’s not what I asked. Does Brown v. Board of 

Education, Plessy v. Ferguson, or Dred Scott cases ring a bell with 

you where they actually reversed themselves? 

Mr. KOPOCIS. Yes, they—yes—— 

Mr. WEBER. Okay. So they—we do know they are wrong? 

Mr. KOPOCIS. They do reverse themselves from time to time, yes. 

Mr. WEBER. Okay. So they do make mistakes. All right. So in 

your discussion—in your exchange with the gentlelady from Oregon, she made the comment that it created regulatory uncertainty, 

but I will tell you that the regulatory uncertainty was created long 

before the case got to the Supreme Court. It was created by an 

overreach of the Federal Government. The Tenth Amendment, the 

reason I want it read into the record is because you just got 

through with Dana Rohrabacher saying that the 2015 rule gave the 

States the authority. I will tell you that is so patently false on its 

face. Read your Constitution. The Federal Government is delineated with what their responsibilities and what their powers are by 

the Founders of this country. All others are given to the States and 

the people respectively, period, end of sentence. That’s just exactly 

the way it is. When the Federal Government starts feeling like it 

has to dole out power to the States, something is wrong, terribly 

wrong with this country. 

Let me continue. That’s my op-ed for the minute, okay? I hope 

I wasn’t too forceful to you. If I was, tough. 

Mr. KOPOCIS. Well, perhaps—— 

Mr. WEBER. I’m going to go—— 

Mr. KOPOCIS. Perhaps I should’ve said that they basically just 

took the Federal Government out of it. 

Mr. WEBER. Okay. 

Mr. KOPOCIS. It wasn’t an affirmative—— 

Mr. WEBER. If we can get you on record of wanting to take the 

Federal Government out of the WOTUS, we’re all for that. Are you 

on record saying you want to take the Federal Government out of 

it? 

Mr. KOPOCIS. I don’t believe that the Federal Government—— 

Mr. WEBER. Okay. Mr. Hopper, I’m going to come to you. In 

President Trump’s executive order February 28, ’17, I just read, he 

directs EPA and the Army Corps to consider the Scalia opinion in 

the Rapanos case in its revisions to WOTUS. I’ve got two questions 

really. I’ve got about a minute left. What is the difference between 

Justice Scalia’s approach and Justice Kennedy’s and why does it 

make more sense to follow Justice Scalia’s, Mr. Hopper? 

Mr. HOPPER. First, to the second question, as I outlined in my 

law review article, it’s required by law to rely on the plurality decision authored by Justice Scalia than it is the Kennedy approach 

under the Supreme Court’s Marks decision, which says when you 
86 

have a split decision, you look at those Justices who agreed in the 

final judgment, which would be the four in the Scalia plurality and 

Justice Kennedy. You never look to the dissent. All these other 

courts that have held that the Kennedy test is controlling have relied on the dissent. This is—— 

Mr. WEBER. And isn’t that interesting? 

Mr. HOPPER. Yes, it is. And that’s contrary to the express decision by the Supreme Court in Marks. 

Your other question was? 

Mr. WEBER. What was the difference between the Scalia approach and the Kennedy’s? 

Mr. HOPPER. Yes, the difference is significant. Mr. Kopocis is 

right that there’s no question that the Scalia plurality is going to 

be narrower, and that’s why it falls under the Marks decision. 

When you have two competing concurring opinions, you look to see 

whether one is a subset of the other, and the Scalia plurality decision is a subset of the larger interpretation of Justice Kennedy. 

Mr. WEBER. Good point. 

Mr. HOPPER. The major difference, however, is that under the 

Scalia plurality, it’s fairly definite in that it describes relatively 

permanent tributaries and abutting wetlands that are indistinguishable. However, through the significant nexus test, it’s—it can 

only be applied on a case-by-case basis, and that’s where the lack 

of clarity comes. And the WOTUS rule that was published in 2015 

continues to rely on this case-by-case analysis, which gives nobody 

any security or certainty. Judge Kelly in the Eighth Circuit said, 

interestingly enough, the Clean Water Act is the only law I know 

of where you have to hire an expert to determine if it even applies 

to you, not to mention an attorney. 

Mr. WEBER. Thank you, Mr. Hopper. 

Thank you for your indulgence, Mr. Chairman. 

Chairman BIGGS. Thank you. The Chair recognizes the gentleman from Texas, Mr. Babin. 

Mr. BABIN. Thank you, Mr. Chairman, and I thank you, witnesses, for being here. 

Mr. Hopper, you mentioned in your testimony that the draft 2015 

WOTUS rule in the final rule had substantial differences within it. 

Were these differences subject to public notice and to public comment? 

Mr. HOPPER. Yes, absolutely. That was one of the reasons why 

the rule was stayed by the District Court of North Dakota and the 

Sixth Circuit Court of Appeals is because there was such a substantial difference between the proposed rule and the final rule, 

particularly with respect to these distance limitations of 4,000 feet 

and the 1,500 feet, and the 100-year floodplain. 

Mr. BABIN. Absolutely. So these changes are substantial enough 

to have warranted this extension period? 

Mr. HOPPER. Without question. 

Mr. BABIN. Yes. Okay. And then also in a May 29, 2015, interview with PBS NewsHour, previous EPA Administrator Ms. Gina 

McCarthy stated the following, quote, ‘‘The farmers will know very 

clearly here that we are clearly explaining that irrigation ditches 

are not included. We have clearly said in the rule and beyond this 
87 

rule as absolutely no new regulatory or permitting issue for agriculture whatsoever.’’ Do you agree with this statement? 

Mr. HOPPER. No. In fact, I remember reading—writing a blog 

post saying that the Administrator’s a prankster because if she had 

read her own rule, she’d realize that it’s not clear. Even if the— 

there’s been no change in the exemptions, the statutory exemptions 

for agriculture, that in itself constitutes a problem because the 

Agency has a history of defining these exemptions so narrowly as 

to eviscerate them. For example, there’s an exemption for farming. 

Common farming practices should not be subject to Clean Water 

Act jurisdiction. However, common farming practices are interpreted to mean what’s common and ordinary on that particular 

farm, not what’s common and ordinary in the industry. We think 

that’s bogus, undermines the exemption and the statute, and I 

think we’re going to see the same type of thing with any other exemption like ditches. 

Mr. BABIN. Right. So we’re looking at an enormous overreach by 

unelected federal bureaucracy. 

Mr. HOPPER. By any definition. 

Mr. BABIN. Absolutely. Okay. And then, Mr. Chilton, how can a 

landowner possibly be expected to know prior to any digging that 

any water encountered would be, quote, ‘‘groundwater’’ and therefore exempt or shallow sub service and therefore subject to the 

Clean Water Act requirements or even to fines? 

Mr. CHILTON. Well, most farmers and ranchers want to do a good 

job and earn a living, and you can’t really determine when you 

have an ambiguous overreaching rule that isn’t easily understood. 

I don’t know how you tell the difference between a groundwater 

issue and whether it’s a surface water issue. It’s very difficult, and 

one has to, under the 2015 rule, hire consultants and attorneys to 

answer that question. Is there a significant impact? In our area the 

Santa Cruz River doesn’t even reach a navigable river here. I 

mean, it’s outrageous the way the County of Pima has to go 

through all the treacherous paperwork that is imposed on them by 

the Environmental Protection Agency and the Corps of Engineers 

when the Santa Cruz River doesn’t even reach a navigable river. 

It’s outrageous. And in terms of groundwater, let the State control 

what is groundwater and what is surface water. 

It’s difficult. It’s ambiguous, and it’s expensive. We have an overreaching Federal Government. Remember, the States created the 

Federal Government, and now the Federal Government is ruling 

with a high—with an iron hand. And I hate to say this, Ken, but 

bureaucrats like you are overreaching. It’s outrageous. 

Mr. BABIN. Thank you, Mr. Chilton. My time is expired, Mr. 

Chairman. 

Chairman BIGGS. Thank you. 

Mr. BABIN. I appreciate it, though. 

Chairman BIGGS. Thank you. The Chair recognizes the gentleman from Georgia, Mr. Loudermilk. 

Mr. LOUDERMILK. Thank you, Mr. Chairman. I thank all the 

panel for being here. 

I want to just open with one quick question, yes or no question. 

Commissioner Mehl, do you agree with the Waters of the United 

States rule? 
88 

Mr. MEHL. The 2015? 

Mr. LOUDERMILK. Yes. 

Mr. MEHL. No, I do not. 

Mr. LOUDERMILK. No. Mr. Chilton, do you agree with that? 

Mr. CHILTON. Absolutely no. 

Mr. LOUDERMILK. Mr. Hopper, do you agree with it? 

Mr. HOPPER. No. 

Mr. LOUDERMILK. Seventy-five percent of our panel just said no, 

they don’t agree with it, but, Mr. Kopocis, back in August of this 

year you co-authored an op-ed on the Hill that was entitled ‘‘Trump 

Plans to Roll Back Environmental Rule Everyone Agrees On.’’ Can 

you define who everyone is? I mean, I—when I go back to my district, I do not hear this, that everyone agrees with it, so I think 

that the title may be a bit misleading at the best. But I would say 

that’s kind of consistent from what I’ve seen in the three years I’ve 

been in Congress with the EPA has a history of using any means 

or method to achieve a goal that it wants, regardless of fact, law, 

or public opinion, and I want to address some of those issues with 

you today. 

I think possibly maybe some of the reason you say everyone 

agrees with this rule is, as you said several times in your statement and responding to questions was there was unprecedented 

public comment. I believe I read somewhere recently that you or 

someone commented that 87.1 percent of those commented in favor 

of the Waters of the United States. Do you recall that, that—— 

Mr. KOPOCIS. I don’t believe that was a statement that I made. 

Mr. LOUDERMILK. Okay. But—— 

Mr. KOPOCIS. That sounds about right. 

Mr. LOUDERMILK. Okay. The majority of the people were in favor 

it, but it’s interesting because the New York Times came out in 

2015 with an article that uncovered that the Agency was actually 

involved in what the GAO has now determined was an illegal social 

media campaign called Thunderclap. Are you familiar with that? 

Mr. KOPOCIS. Yes, I am. 

Mr. LOUDERMILK. You’re familiar with that. So in fact one of 

your colleagues at the American University stated that the Agency 

is supposed to be more of an honest broker, not a partisan advocate 

in the process. Now, I was surprised to learn that the Agency was 

actually using social media to generate support for Waters of the 

United States. In fact, through a FOIA request by Judicial Watch, 

the former EPA Director of Web Communications admitted that 

she did not want, quote, ‘‘it to look like EPA used its own social 

media accounts to gain support for the rule’’ even though you 

partnered with Sierra Club and some other grassroots organizations. In fact, as I mentioned, the Government Accounting Office 

stated that you had ‘‘violated publicity or propaganda and anti-lobbying provisions contained in appropriations acts in association 

with its Waters of the United States rulemaking.’’ 

So do you agree with the statements of your colleague? In fact, 

again, Professor Lubbers said that a guide to federal agency— 

that—I’m sorry. ‘‘I have not seen before from a federal agency this 

stark of an effort to generate endorsements of a proposal during an 

open comment period.’’ Were you aware of the Thunderclap in the 
89 

generating of popular public opinion during this rulemaking period? 

Mr. KOPOCIS. I became aware of the Thunderclap incident after 

it had occurred. The—I was not—that was something that was 

handled by our communications—our communications staff. We 

did—I’m familiar with the GAO letter on the issue where they 

found—they found some minor violations of the appropriations law. 

The Agency disagreed with the Agency’s conclusions—with GAO’s 

conclusions, as did the Department of Justice. 

Mr. LOUDERMILK. Okay. Well, I mean, I think most of the people 

in the country expect our agencies to—when you have a public comment period to be honest brokers in listening to public opinion, not 

generating public opinion but again—and I’ll close with this—I 

think it’s been in the history of the Agency following this. In 2015, 

the Science Committee obtained documents from the EPA demonstrating the EPA had avoided the regulatory impact analysis 

process at the Office of Management and Budget. If you recall, 

there was a question that you have to do an impact analysis if a 

rule or regulation exceeds a certain fiscal impact on the Nation, 

which was the question. 

Can we bring up the slide, please? 

[Slide.] 

Mr. LOUDERMILK. Okay. This was an email that we actually 

brought up in a hearing when we had Director McCarthy in a 

while back, and I want you to follow along. And let’s start at the 

bottom of the email. This was an email from Jim Pendergast, who 

I think you’re familiar with, and basically, in the second sentence 

of the first paragraph in the last part says, ‘‘You relayed to us that 

Greg Peck said the rule now considered significant that OMB was 

like—was unlikely to change that designation and that’’—and basically that you have to do this impact study. It went on in the second paragraph that the rule is now considered economically significant by OMB, so it would require this impact study. 

If you go up to the next email, ‘‘So just got off the phone with 

Sandy and Tomeka. They say that Nancy and Ken know that an 

RIA may be necessary but they are—but that there are some economically significant rules EPA haven’t had an RIA,’’ even though 

the law says you have to do it. 

Chairman BIGGS. The gentleman’s time has expired. Perhaps Mr. 

Higgins who’s next on the list will yield you some time. 

Mr. LOUDERMILK. Thirty seconds. 

Mr. HIGGINS. I’d like to yield to my colleague. 

Chairman BIGGS. He yields 30 seconds, Mr. Loudermilk. 

Mr. LOUDERMILK. Thank you, Mr. Chairman. And with this, ‘‘At 

last, good news. Tomeka and Sandy talked to Ken. Ken said it has 

been agreed that we do not need an RIA.’’ This kind of fits into 

what we’ve seen is that the law doesn’t matter, the public opinion 

obviously doesn’t matter, and rules don’t matter—is—do you think 

that you—that it’s acceptable just to make an opinion that you 

don’t need an impact analysis and then go forward with that? 

Mr. KOPOCIS. The requirement to do the impact analysis comes 

out of an executive order, does not come out of a statute or the public laws. It is something that is routinely negotiated between the 

agencies and the Office of Management and Budget, their Office of 
90 

Information and Regulatory Affairs, OIRA, and that is something 

that there were extensive conversations between the Agency and 

OIRA—— 

Mr. LOUDERMILK. Did Gina McCarthy negotiate that? 

Mr. KOPOCIS. I am not—I don’t recall that Gina McCarthy was 

personally involved. 

Mr. LOUDERMILK. Thank you, Mr. Chair. 

Chairman BIGGS. Thank you. The Chair recognizes the gentleman from Louisiana, Mr. Higgins. 

Mr. HIGGINS. Thank you, Mr. Chairman. In the interest of time, 

I’ll ask your answers to be brief. Mr. Kopocis testified that the 2015 

Waters of the United States rule used the best science available. 

Mr. Hopper, do you agree that the rule used sound science and the 

best science available? 

Mr. HOPPER. The answer is no, and the two courts agreed. 

Mr. HIGGINS. Thank you for your answer. Mr. Kopocis, thank you 

for appearing before us today. Are you familiar with the enumerated powers of our Constitution? 

Mr. KOPOCIS. Yes. I—— 

Mr. HIGGINS. Article II, sections 2 and 3 gives the President constitutional authority to issue proclamations and orders, thereby 

the—according to the constitutional parameters, the 2015 Waters 

of the United States rule, as amended by President Obama, would 

be legal, don’t you agree? 

Mr. KOPOCIS. I’m sorry. I didn’t follow the question, Mr. Higgins. 

Mr. HIGGINS. In other words, there’s executive authority for altering of rules at the federal level granted to the President of the 

United States. So—— 

Mr. KOPOCIS. Yes, sir—— 

Mr. HIGGINS. President Obama’s ruling was legal. Do you agree? 

Mr. KOPOCIS. The Clean Water Rule that was—— 

Mr. HIGGINS. That was amended. 

Mr. KOPOCIS. —2015 was—yes, I believe it was legally promulgated. 

Mr. HIGGINS. All right. So if it was constitutionally sound for 

President Obama to alter the rule, don’t you agree that it is constitutionally sound for President Trump to do the same? 

Mr. KOPOCIS. Oh, I don’t raise any question about his constitutional authority. 

Mr. HIGGINS. All right. Let’s move forward. I’d like to give you 

an example, sir, of a town that exists within the district I represent, south Louisiana. This is a small town of just a few thousand folks. It’s economically sound. A railroad runs through it. 

Those folks work hard to develop their community, and they of 

course have to deal with rain. 

Decades ago at the southern parameters of that municipality, a 

ditch was dug. A 12-mile ditch was dug through private property 

owned by five Americans, all of whom had—have family, grown up 

together, they’ve known each other for generations, they’re family 

within this community. This drainage ditch was designed to collect 

the rainwater and runoff and bring it to a more major navigable 

waterway 12 miles through private land. 

Over the course of decades, the ditch deteriorated. And because 

of the 2015 Waters of the United States rule, although this munici-
91 

pality of American citizens and the five private landowners that 

owned the land where the original ditch was established were not 

allowed to reestablish the original parameters of this relatively 

small ditch through their own land because of the interpretations 

of the Waters of the United States regarding wetlands, do you feel 

that that’s reflective of our Founding Fathers’ intent regarding the 

union of 50 sovereign States and the rights of the citizens that live 

therein? 

Mr. KOPOCIS. Well, first of all, I’m a little puzzled as to how the 

2015 rule could have affected this ditch since it was in effect for 

only a matter of a few days. It has been on—it’s been stayed—— 

Mr. HIGGINS. Because the interpretation of the Corps of Engineers determined that that private land was wetlands based on 

broad interpretations from one Corps command-and-control center 

to the next. 

Mr. KOPOCIS. Well, Mr. Higgins, the waters in question may 

have been jurisdictional, and they may have been jurisdictional 

since 1972. I really can’t speak to the specifics of that. 

Mr. HIGGINS. I’ll just ask you as an American, sir. Do you think 

that that’s right, that a private landowner cannot reestablish a 

ditch as decades-old to allow water to flow to protect his neighboring communities? 

Chairman BIGGS. The gentleman time is expired. If you choose 

to answer, Mr. Kopocis, you may. 

Mr. KOPOCIS. Thank you. I will briefly. Since 1977, the service 

and maintenance of existing ditches is exempt from permitting requirements under the Clean Water Act. And as to your point as to 

private property, a lot of the waters that are subject to the clean 

water jurisdiction are on private property. If we were to exclude all 

waters that are on private property, the only waters left would be 

those that form interstate boundaries or are on federal land. 

Mr. HIGGINS. Thank you, Mr. Chairman. 

Chairman BIGGS. Thank you. The Chair recognizes the gentleman from South Carolina, Mr. Norman. 

Mr. NORMAN. First, I want to thank each of you for taking the 

time. 

Mr. Chilton, your experiences with what you went through with 

trying to cut a small ditch is ridiculous, and it’s unelected bureaucrats who are causing this country more trouble. And my response 

back to most of them is to let you pay for it. 

Mr. Mehl, let me ask you. The EPA under the previous Administrations claimed that they are not regulating land with this rule. 

If you regulate water in a real sense, aren’t you really regulating 

land use? And even though the Agency has that it does not intend 

to take over private property, how can the Agency deny that by expanding vastly its definition of the Waters of the United States, it 

effectively is limiting the activities that can occur on your private 

property? Is this not the case? 

Mr. MEHL. Yes, sir. The rule does affect land use. Obviously, it 

affects density, it affects configurations of what you can develop. In 

Arizona where you have situations where water spreads over large 

areas, you have a tremendous impact as you really have to make 

decisions about what goes where, and those are traditionally decisions made at a local level about zoning. 
92 

And with respect to the water it’s not even a question of polluting or preventing water from going from one place to another because largely engineering will do that. We want to develop certain 

lands. You can direct the water around these developments so that 

they go from the same point A to the same point B. And our only 

subject to fill such as dirt and concrete and steel. 

The true impact is on what you can do with that land, and so 

it is a land-use regulation. And it’s tremendously destructive for 

value. 

Mr. NORMAN. And that’s the effect that you’re basically taking 

somebody’s private land. 

Mr. MEHL. Yes. 

Mr. NORMAN. Mr. Chilton, the 2015 WOTUS rule sought to regulate isolated waterbodies like dry washes. This is a significant 

stretch in the federal authority from the previous interpretations 

of the Waters of the United States. How would regulations over 

these isolated waterbodies impact your operation? And as you’ve 

got a pretty big operation—in other agricultural operations in Arizona? 

Mr. CHILTON. First, our dry washes run into other dry washes 

that run into dry rivers and dissipate, as Mr. Mehl says, in the 

desert. They never reach the Colorado River. And for us to have to 

try to judge under the 2015 rule what is or isn’t a water of the 

United States and some sort of language saying high watermark, 

I kind of think of Noah. What was the high watermark when Noah 

was there? Do we have to—does that mean all the world is subject 

to the 2015 rule? I mean, why do we have to live under the rule 

of the EPA and the Corps of Engineers? It’s very expensive, it’s 

costly, and it’s time-consuming. 

Mr. NORMAN. Well, I appreciate you expressing your views. And 

it’s sad to read in our notes what you had to go through and, you 

know, the money that you had to spend. That’s one truck that you 

can’t buy. That’s one hiree that you can’t put food on the table with 

a salary. So I appreciate you telling your side of the story and 

being willing to come up and express your concern. Thank you so 

much. 

Mr. CHILTON. Thank you. 

Mr. NORMAN. I yield back. 

Chairman BIGGS. Thank you. And we appreciate the interest of 

some Members—some folks—Members of the whole Committee 

who are here for the Subcommittee because of the interest on this 

important issue, and so I recognize them for their patience and will 

recognize first Mr. Tonko from New York. 

Mr. TONKO. Thank you, Mr. Chair. 

I have letters from more than 250 scientists and the Society of 

Wetland Scientists who strongly oppose a repeal of the Clean 

Water Rule. They note that the rule is supported overwhelmingly 

by scientific evidence and that a repeal of the rule, and I quote, 

‘‘poses a significant threat to the integrity and security of our 

drinking water, public health, fisheries, and wildlife habitat,’’ close 

quote. 

So I ask, Mr. Chair, that these letters be included in the record. 

Chairman BIGGS. Without objection. 

[The information appears in Appendix II.] 
93 

Mr. TONKO. Thank you. 

Every life and every job in this country depends on clean water. 

We must protect this precious resource and not throw away all the 

progress we have made. Earlier this year members of the House 

Sustainable Energy and Environment Coalition, or SEEC, led a 

comment letter to EPA opposing Administrator Pruitt’s efforts to 

rescind the Clean Water Rule. 

Since the 1970s, we have learned so much about our waterways. 

Years of research and peer-reviewed science have told us that the 

Waters of the United States are connected. What do we do—we do 

to one will impact the health and the safety of another. 

The Clean Water Rule protects the drinking water of roughly 1/ 

3 of Americans. One hundred and seventeen million Americans rely 

on drinking water sources fed by intermittent or ephemeral 

streams. Rolling back this rule also jeopardizes waterways that 

Americans use for recreation. The bottom line is Americans need 

an EPA that will use the best possible science to protect our health 

and our national—natural heritage. 

In his testimony Mr. Hopper claims that the Clean Water Rule 

is not supported by scientific evidence. To the contrary, EPA issued 

a comprehensive science report known as the Connectivity Report 

which reviewed and summarized the relevant peer-reviewed scientific literature. Mr. Kopocis, how do you respond to the claim 

that the Clean Water Rule is unsupported by scientific evidence? 

Mr. KOPOCIS. Well, quite frankly, sir—thank you for the question—I find it to be a little troubling in how to answer that because 

typically when science is disputed, somebody brings science to the 

table and says, ‘‘Well, I disagree with your science and here’s my 

science as to why.’’ To date, the opponents of the rule have not 

brought forward credible science to counter what the Agency put 

together. 

And as I said in my opening remarks, the Agency did not create 

any of the science associated with the Connectivity Report. It was 

based on about 1,200 previously peer-reviewed studies and articles 

that had been put together by the experts in the field. EPA’s compilation then was subject to public comment. It was sent to the 

Independent Science Advisory Board for its views, a science advisory panel that was made up of 27 experts in the field. They held 

public meetings and reviewed the document and ultimately came 

with the final document and the conclusions that were contained 

therein. As I said, since that time, nobody has come forward and 

said, ‘‘I have science that debunks yours.’’ 

Mr. TONKO. And just why is this Connectivity Report so important? 

Mr. KOPOCIS. Well, when Justice Kennedy in his opinion opined 

on the significant nexus test, he said it was the relationship of 

waters upstream to downstream that was important, that those 

downstream waters of course—the upstream relationship to downstream waters that are navigable waters, jurisdictional waters. 

And so because the agencies in the past had looked at the effects 

on interstate commerce instead of how waters were interconnected 

with each other, it was important for us to develop that science so 

that we could be informed on where the Clean Water Act jurisdiction starts and where it ends. And it was important to note that 
94 

some of the waters that are—that the science report suggested 

could be jurisdictional under the Clean Water Act were not included in the final rule. 

Mr. TONKO. And in terms of informing us or policymakers as to 

any future actions to repeal or replace the rule, what role does the 

Connectivity Report play? 

Mr. KOPOCIS. Well, the Connectivity Report is there. If the Agency follows its path and issues a new rule, it is going to have to explain why it does not follow the science that the Agency itself already prepared and already sent through the public process. 

Mr. TONKO. And in your testimony you discussed the importance 

of clean water to the Nation’s economy listing a number of businesses and industries that need a reliable supply of clean water to 

function. Can you elaborate on the role of clean water in supporting the American economy, please? 

Mr. KOPOCIS. Well, clean water is important and required for virtually every aspect of the American economy. There is no sector of 

the economy that can exist without fresh, clean, and abundant 

water. When companies come to look at creating new—a new factory or a new endeavor, they look at what is the availability of 

water, whether that’s the soft drink industry—Coca-Cola spends 

enormous amounts of money trying to figure out where fresh water 

is available. Manufacturers use water; farmers use water. It’s—virtually every segment of society uses water. It has to have it, an 

adequate and clean supply. 

Mr. TONKO. Thank you very much. Mr. Chair, I yield back. 

Chairman BIGGS. Thank you. The Chair recognizes the very patient gentleman from California, Mr. Takano. 

Mr. TAKANO. Thank you, Mr. Chairman. I appreciate the opportunity. 

Mr. Kopocis—before I begin, Mr. Chairman, I have a letter from 

60 different groups around the country including Earth Justice, the 

League of Conservation Voters, the Natural Resources Defense 

Council, Alaska Wilderness League, the Puget Sound Keeper Alliance all supporting the clean water protections laid out in the 

Clean Water Rule and opposing rollbacks of the rule. I ask that 

this letter be included in the record. 

Chairman BIGGS. Without objection. 

[The information appears in Appendix II.] 

Mr. TAKANO. Thank you, Mr. Chairman. 

Mr. Kopocis, the witnesses today have identified many problems 

they think exist with the Clean Water Rule, and I wanted to give 

you an opportunity to address some of the concerns raised in the 

written testimony directly. If you could briefly respond to each of 

these concerns. A, why is the conclusion of all tributaries legal— 

in the rule legal? 

Mr. KOPOCIS. The rule actually doesn’t include all tributaries. 

For the first time it placed restrictions on the definition of what 

constituted—constitutes a tributary. The old rule used to refer to 

the presence of an ordinary high watermark. The new rule says ordinary high watermark, plus there has to be a bed and banks, so 

there would be waterbodies that could be thought of and would be 

thought of as tributaries that would be excluded under the new 

rule. It does not cover all tributaries. 
95 

Mr. TAKANO. Okay. So actually compared to the old rule this new 

rule—— 

Mr. KOPOCIS. Correct. 

Mr. TAKANO. —actually—— 

Mr. KOPOCIS. It’s more narrow—— 

Mr. TAKANO. —is more narrow. 

Mr. KOPOCIS. —because it’s more specific in the physical requirements to be considered a tributary. 

Mr. TAKANO. Well, is the definition of adjacent waters overbroad? 

Mr. KOPOCIS. No. In fact, it’s been interesting that many of the 

criticisms of the definition of adjacency have focused on the distance limitations, the use of the 100-year floodplain, the 4,000 feet, 

the 1,500 feet, et cetera. In the proposal what went out it was 

floodplains and riparian areas without limitation, so the limitations 

that are in the final rule that are being criticized as overly broad 

are in fact limitations on what was in the proposal. 

Mr. TAKANO. Thank you. Does the rule contain an invalid inclusion of isolated waters? 

Mr. KOPOCIS. No. There is obviously some disagreement as to the 

holding in SWANCC. SWANCC, that case said that it was inappropriate for the agencies to rely on the presence of migratory birds 

to assert jurisdiction over an intrastate isolated water, and the 

agencies don’t do that. The agencies have always looked at isolated 

waters and have been able to find jurisdiction under other theories. 

And Justice Kennedy in particular said that it was in fact sometimes the lack of a physical connection that provided the nexus to 

the downstream water. 

Mr. TAKANO. Thank you very much for that. Did the EPA—did 

EPA fail to provide notice and comment of substantial rule 

changes? 

Mr. KOPOCIS. No. Every one of the changes that we made from 

proposal to final were part of a test—the legal test of a logical outgrowth. In the proposal we asked over 50 specific questions for 

commenters, asking them for their views on a variety of issues, including items such as what was the correct floodplain, how should 

we define the riparian area, are there limits how—what should the 

Agency do? So, no, we did not believe so. 

Mr. TAKANO. Thank you. Does the rule exceed—— 

Mr. KOPOCIS. I shouldent say we—the Agency. 

Mr. TAKANO. Thank you. Thank you for that. Does the rule exceed the scope of commerce power—of the commerce power? 

Mr. KOPOCIS. Well, the Agency—working within the Agency and 

the Department of Justice believes the answer is no. Obviously, the 

ultimate decision on the extent of Congress’ power under the commerce clause will be made by the Supreme Court. It’s an issue 

they’ve ducked three times. 

Mr. TAKANO. Okay. Is the rule flagrantly disregarding the principles of federalism and usurping the rights of States? 

Mr. KOPOCIS. No, it does not usurp the rights of the States. The 

States have always been free to do whatever they choose to do in 

addition under the Clean Water Act, and some States have done 

so. They have more stringent requirements are they apply State 

law to waters that are not subject to federal jurisdiction. 
96 

The—I find it ironic that—when people talk about usurping 

State powers, the Clean Water Act only restricts the ability of people to pollute or destroy waters, so if States’ powers are being 

somehow usurped, it would be the power of the State to destroy or 

pollute their own waters. 

Mr. TAKANO. Well, Mr. Kopocis, you know, I’ve had the privilege 

of being able to travel to many countries that are extraordinarily 

beautiful, but I find that the management of the water, whether 

it’s near the ocean, whether it’s near a river or creek in a populated 

area can often be disappointing. I will smell the waft of pollution, 

human pollution, and it strikes me that one of the great things 

about our country is the impressive reliability from community to 

community that we can trust the water systems to actually not 

have to rely on bottled water if we don’t want to buy the bottled 

water. But in America we have a tremendous trust in water from 

jurisdiction to jurisdiction. That’s my experience. 

Thank you so much for your response. 

Mr. KOPOCIS. Thank you. 

Mr. TAKANO. I appreciate it. 

Chairman BIGGS. Thank you. The Chair recognizes the gentleman from Virginia, Mr. Beyer. 

Mr. BEYER. Mr. Chairman, thank you. Thank you all for coming. 

I want to begin by just defending unelected bureaucrats, also 

known as civil servants. You know, it’s the character of our governments at every level—state, local, federal—that determines the 

quality of our lives, the health of our economy, the health of our 

ranches, and these are our police, our military, education, virtually 

every part, and they’re all unelected bureaucrats. And they fulfill 

the duties and the obligations that we the Congress gives them or 

county government, state government. So a government without 

unelected bureaucrats is no government at all, and all we have to 

look at the lawless ungoverned nations around the world right now 

and think we don’t want to live there. So let’s be careful about 

trashing these people. They are there to serve us. 

And by the way, much as we like elected, it’s sort of difficult to 

imagine having elected Members of Congress or even the county to 

determine what can happen on every given ditch or river or landuse project. 

I want to start off in line with what my friend Barry Loudermilk 

did by asking you a yes or no question down the line starting with 

Mr. Mehl. Do you believe it’s important for the American public to 

be able to offer their opinions like you are today on the nature of 

federal oversight for our water? 

Mr. MEHL. Yes, sir. 

Mr. BEYER. Yes. Mr. Chilton, should there be public input on 

this? 

Mr. CHILTON. There should be public input, but it’s a local matter, not a federal matter. 

Mr. BEYER. Mr. Kopocis? 

Mr. KOPOCIS. Yes, absolutely. 

Mr. BEYER. And, Mr. Hopper? 

Mr. HOPPER. Yes. 

Mr. BEYER. And I think that’s what Mr. Loudermilk was trying 

to point out, too, when he had the debate about social media. 
97 

That’s why I was so dismayed when twice Republican leadership 

tried to sneak into the appropriations bill language that would suspend the comment period on the current Administration’s efforts to 

repeal the rule. And as you suggested, Mr. Kopocis, there’s nothing 

illegitimate about the current Administration trying to change the 

rule as previous Administrations have also. But we do believe the 

public deserves to have a say on this, and Republican leadership 

should stop trying to sneak in provisions to eliminate public comment. I wanted to raise this issue to make sure that we all have 

a chance to do this. 

I also want to highlight that we’re reviewing the Clean Water 

Rule in the Science Committee, and naturally, the average American would think that the Science Committee would be weighing 

the scientific merits of the rule, but that’s not what we have today. 

We have a witness panel that doesn’t have scientists. We have administrative, legal, land management experience, ranching experience, but the key thing to note is that the Clean Water Rule was 

stayed by the courts, is now waiting consideration by the Supreme 

Court. They just had an oral argument. So it makes sense to have 

legal administrative experts, but the rule was never put in place. 

So let’s just make the assumption that the arguments against 

the never-enacted Clean Water Rule were justified and that what 

we’re hearing today are not just lobbyist talking points relayed 

from industries that want to dirty our drinking water. 

Mr. Kopocis, you’re the clean water expert here. And Mr. Chilton 

said that the rule is overly burdensome and would regulate the 

small dry washes on his estate, the dirt road they want to put 

across. In his testimony he claims that the Clean Water Rule does 

not respect private property. Is this true? Is this your perspective? 

Mr. KOPOCIS. No, I don’t agree with that assertion. Obviously, I 

can’t speak to whether that feature he had in his photograph was 

jurisdictional or not. It’s very hard to say from a photograph. I 

would say that the ability to construct a road crossing on a small 

waterbody like that is authorized by a nationwide permit by the 

Corps of Engineers. I don’t know why it would not have qualified 

for that on Mr. Chilton’s ranch. 

Mr. BEYER. Yes. I want to also highlight how drastically different 

the Administrations have been on this—their engagement on this 

issue. We only recently received Secretary Pruitt’s calendar thanks 

to a FOIA request by journalists and something that was once very 

transparent in previous Administrations. And now we know unequivocally that, unlike his predecessor in the Obama Administration, Mr. Pruitt has done very little engagement with anyone beyond industry hostile to this rule. In fact, he appeared in a National Cattlemen’s Beef Association video as Secretary lobbying 

against the Clean Water Rule, and now, there’s an active investigation into whether this action is a violation of his role as Secretary. 

The Administration should be listening to scientists, not industry 

that wants to dump or endanger our drinking water, and that’s 

why I led a letter with Ms. Johnson and Ms. Bonamici to Chairman 

Smith asking that Mr. Pruitt testify before this Committee. So we 

deserve answers for this concerning behavior of ignoring science 

and focusing on industry lobbying. The mission of the EPA is to 

protect the human health and the environment, not work for indus-
98 

try’s whims. And Mr. Pruitt is still not confirmed to testify before 

our committee. We deserve better. 

Mr. Chair, I yield back. 

Chairman BIGGS. Thank you. And I appreciate all the Members 

and their very interesting questions, but I most especially express 

gratitude to our panel, very excellent testimony. 

And the record will remain open for two weeks for additional 

comments and written questions from the Members. This hearing 

is adjourned. 

[Whereupon, at 12:05 p.m., the Subcommittee was adjourned.] 
(99) 

Appendix I 

ANSWERS TO POST-HEARING QUESTIONS
100 

ANSWERS TO POST-HEARING QUESTIONS

Responses by Mr. Ken Kopocis 
101 

In addition to imperiling drinking water sources, water quality goals cannot be 

maintained in downstream waters if upstream waters are contributing unchecked pollution. 

When downstream waters become polluted by uncontrolled upstream pollution, the burden of 

cleaning downstream waters would fall on the downstream communities and industry. In arid 

states, excluding the overwhelming number of waters would make it impossible to achieve water 

quality in the downstream major waters. Either the costs of cleanup would be prohibitive, or 

water quality goals of the Clean Water Act would need to be abandoned. Neither is a desirable 

outcome. 

The Army Corps of Engineers and the Environmental Protection Agency have long 

asserted that certain, but not all, intermittent and ephemeral tributary streams are provided 

protection from pollution and destruction under the Clean Water Act. This position is not new to 

the Clean Water Rule. What was new under the Clean Water Rule (CWR) is that making 

determinations of which waters would be subject to the Clean Water Act would occur with 

greater clarity, predictability, and transparency. 

The CWR addressed intermittent and ephemeral tributary streams by reducing the costly 

and time-consuming case-specific significant nexus analysis that resulted from the Rapanos 

decision. The CWR establishes physical indicator characteristics that must be necessary for 

intermittent and ephemeral tributary streams to be subject to and protected by the Clean Water 

Act. These indicators are the presence of a bed and banks and an ordinary high water mark. 

These characteristics indicate a volume, frequency, and duration of flow sufficient to create the 

required significant nexus. The requirement for these indicators also operates to exclude 

episodic water features such as sheet flow across land. Additionally, the CWR for the first time 

specifically excluded erosional features from jurisdiction. 

2. Many states have self-imposed limitations that prevent state regulatory agencies.from 

regulating waters more stringently than the Clean Water Act. A 2013 report by the 

Environmental Law lnstitute,.fimded hy the EPA, found that over two-thirds of the states "have 

laws that could restrict the authority of state agencies or localities to regulate waters le.fi 

unprotected hy the federal Clean Water Act." 

a. How would states that have these restrictions he capable of :filling the gap' when it 

comes to protecting waters not covered by the Clean Water Act? What are the potential 

results of such a restriction? 

h. Could you describe the potentia/negative effects on downstream water sources if a 

definition of waters of the US were to he adopted that caused certain waterways to fall 

out of .federal Clean Water Act protections? Are states equipped to step in and ensure 

that current water quality standards are maintained? 

Answer: The Environmental Law Institute (ELI) report clearly indicates that the ability and 

willingness of states to "fill the gap" is severely constrained. ELI found that the bulk of the 

restrictions either prohibiting or limiting the authority of state environmental protection agencies 

are statutory. As such, the practical ability of state agencies to protect waters from pollution and 

2 
102 

destruction outside of Clean Water Act jurisdiction is severely limited. A change to state laws 

would require "substantial expense"' undertaken "with potential difficulty."' 

The results of limiting the jurisdiction of waters protected by the Clean Water Act will be 

adverse to state ability to protect water quality. For example, waters outside the scope of the 

Clean Water Act would no longer be protected by water quality standards that ensure the 

cleanliness and health of the waters; no state or federal Clean Water Act permits would be 

required for discharges of pollutants no matter how toxic and destructive; funding to address 

municipal wastewater, stormwater, and nonpoint source pollution would be Jess available 

because Clean Water Act funding provided to the states is targeted to waters subject to the Act; 

state authority to place requirements to protect water quality on federal permits and licenses 

would be eliminated for waters no longer under the Act; federal authority to respond to oil spills 

would be curtailed because both the Clean Water Act and the Oil Pollution Act provide federal 

funding and authority for waters subject to the interpretation of "navigable waters;"' and, states 

would not be able to rely on federal authorities to recover natural resource damages from oil 

spills in these waters. 

Because the majority ofthe restrictions are statutory, states have the theoretical ability to 

step in where the Clean Water Act no longer applies. However, as ELI documents, this would be 

at substantial expense and difficulty for the states. Recent experience indicates that states do not 

have the increased state resources for environmental programs that would allow for such 

additional responsibility to be assumed even if the restrictive provisions were removed. As EI J 

states in its conclusion: "These provisions are so prevalent nationwide, and many of them are of 

such breadth, that it is unrealistic to expect state agencies or localities to comprehensively protect 

surface waters left outside of federal Clean Water Act coverage in the wake of the U.S. Supreme 

Court's decisions in SWANCC and Rapanos."' There is no indication that the conclusion of ELl 

docs not remain sound. 

3 
(103) 

Appendix II 

ADDITIONAL MATERIAL FOR THE RECORD
104 

STATEMENT SUBMITTED BY EBJ 

OPENING STATEMENT 

Ranking Member Eddie Bernice Johnson (D-TX) 

House Committee on Science, Space, and Technology 

Subcommittee on Environment 

"The Future of the WOTUS Rule: Examining the Role of States " 

November 29, 2017 

Good morning. I want to join in welcoming our witnesses, and I look forward to your testimony. 

A clear definition of what is considered 'waters of the U.S.' is important to protecting public 

health and the environment. A narrow definition would lead to less water bodies being protected 

under the Clean Water Act. In turn, protecting fewer water bodies could endanger sources of 

clean drinking water and wetlands that support hunting and fishing. But that is exactly what this 

administration appears to be trying to do. 

The impact of the Clean Water Rule, also known as the WOTUS rule, and its potential repeal 

and replacement with a narrower definition of waters of the U.S., is deserving of a thoughtful 

discussion and debate. However today, at a hearing ostensibly to examine the roles of states in 

the next phase of defining waters of the US, only one state has been brought in to testify, the 

Subcommittee Chairman's home state of Arizona. And there is also no one at the table from the 

EPA to provide an understanding of where things stand at the federal level. It's now almost 

December, and the Majority has yet to have a single political appointee from the Trump 

Administration testify in front of the Committee. This is an abdication of our Committee's 

oversight responsibilities. 

The "de-facto deregulation" that this Administration is attempting by repealing the Clean Water 

Rule and replacing it with a narrower definition of waters of the U.S. will have broad impacts on 

downstream water sources under the Clean Water Act. By allowing certain headwaters, rain-fed 

or seasonal streams to fall out of jurisdiction of the Clean Water Act, we could potentially 

adversely impact over 117 million Americans whose public drinking water supplies rely on these 

sources. 

That is why it is vital that we have a comprehensive discussion on this issue. Instead we are 

again having another incomplete hearing with no representation from the EPA at a hearing 

focusing on an Agency program. This is a disservice to the American people. With a multitude 

of changes in EPA priorities and practices being undertaken by this Administration and this 

Administrator, it is important for Congress to get a full accounting of what is happening at the 

EPA. This will help to ensure the Agency is being managed in an effective way that is to the 

benefit of the public. 

Earlier this month I led a letter with my fellow Democratic colleagues on this Committee to 

Chairman Smith requesting a formal hearing with EPA Administrator Scott Pruitt. Since then, it 

has been reported that Administrator Pruitt will be testifying before both the House Energy and 

Commerce Committee as well as the Senate Environment and Public Works Committee over the 

next few months. But we still have not heard of a hearing date for the Administrator to come 
105 

before this Committee. As members of the Science Committee, it is our duty to conduct serious 

oversight of the agency that is in charge of protecting our nation's public health and the 

environment. I again urge the Chairman to commit to holding a hearing with Administrator 

Pruitt, and to conduct future hearings with representatives from the EPA present to ensure a wellrounded dialogue. 

Thank you, and I yield back the balance of my time. 
106 

REPORT SUBMITTED BY REPRESENTATIVE COLLEEN HANABUSA
107 

STATE CONSTRAINTS 

State-Imposed Limitations on the Authority of 

Agencies to Regulate Waters Beyond the 

Scope of the Federal Clean Water Act 

An ELI 50-State Study 

May 2013 

A PuBLICATION OF THE 

ENVIRONMENTAL LAW INSTITUTE 

WASHINGTON, DC 
108 

ACKNOWLEDGMENTS 

This report was prepared by the Environmental Law Institute (ELI) with funding from 

the U.S. Environmental Protection Agency under GSA contract No. GS-IOF-0330P (P.O. # 

EP I OH000246). The contents of this report do not necessarily represent the v~ews of EPA, and 

no official endorsement of the report or its findings by EPA may be inferred. 

Principal ELI staff contributing to the project were Bruce Myers, Catherine McLinn, and 

James M. McEifish, Jr. Additional research and editing assistance was provided by Carolyn 

Clarkin, Michael Liu, Jocelyn Wiesner, Masumi Kikkawa, Katrina Cuskelly, Katelyn Tsukada, 

Jamie Friedland, Sean Moran, Brian Korpics, Meredith Wilensky, Chelsea Tu, and Kicra 

Zitclman. 

ELI extends its thanks to Donna Downing and Sonia Kassambara of EPA, as well as to 

Et~n Flannery and Damaris Christensen. 

Any enors and omissions are solely the responsibility of ELI. The authors welcome 

additions, corrections, and clarifications for purposes of future updates to this report. 

About ELI Publications-·-

ELI publishes Research Reports that present the analysis and conclusions of the policy studies 

ELI undertakes to improve em~ronmental law and policy. In addition, ELI publishes several 

journals and reporters-including the Environmental Law Reporter, The Environmental Forum, and the 

National 11'etlands New.rlette~~and books, which contribute to education of the profession and 

disseminate diverse points of view and opinions to stin1ulate a robust and creative exchange of 

ideas. Those publications, which express opinions of the authors and not necessarily those of the 

Institute, its Board of Directors, or funding organizations, exemplifY ELI's commitment to 

dialogue with all sectors. ELI welcomes suggestions for article and book topics and encourages 

the submission of draft manuscripts and book proposals. 

Stale Constraints: State-Imposed Limitations on the Authmit;' of Agencies to Regulate Waters Beyond the Scope 11/ 

the Federal Clean !Vater Act 

Copyright© 2013 Environmental Law InstituLe®, Washington, DC. All rights reserved. 

ELI Project No. 0931-01 

(Environmental Law Institute®, The Env~ronmental Forum®, and ELR® The Em~ronmental 

Law Institute Law Reporter® are registered trademarks of the Environmental Law Institute.) 
109 

CONTENTS 

EXECUTIVE SUMMARY .......................................................................................... 1 

INTRODUCTION AND BACKGROUND ......................................................................... 3 

NATIONAL CHARACTERIZATION OF LIMITATIONS CONTAINED IN STATE LAWS .............•..... 7 

PART! 

STATES WITH STRINGENCY LIMITATIONS ...........................................••...•........... 11 

A. STRINGENCY PROHIBITIONS •..........•............•.....•........•••.••••..••.••....... 12 

B. QUALIFIED STRINGENCY PROHIBITIONS ............................................. 13 

C. THREE KEY ASPECTS OF A STATE STRINGENCY PROVISION •.......•.......•• 15 

D. IMPLICATIONS FOR PROTECTING ADDITIONAL STATE WATERS ....•••..•••.•• 18 

PART II 

STATES WITH PROPERTY-BASED LIMITATIONS ....•..................•.........................••. 20 

A. COMPENSATION/ PROHIBITION PROVISIONS ..........•••..••......•.•..•..•....•... 21 

B. ASSESSMENT PROVISIONS .......•..•...•••....••...............••.......•............... 24 

C. OTHER PROVISIONS ....................•.....................•.......•.•...•............... 27 

D. IMPLICATIONS FOR PROTECTING ADDITIONAL STATE WATERS .••••.••••••.•. 29 

PART ill 

SYNTHESIS: COMPARING STATES THAT REGULATE BEYOND THE SCOPE OF THE 

FEDERAL CLEAN WATER ACT TO STATES THAT SELF-LIMIT ••••....•.•..........•....•..... 31 

CONCLUSION ................................................................................................•... 36 

APPENDIX 1: RESEARCH METHODOLOGY ............................................................... 38 

APPENDIX 2: STATE PROFILES ............................................................................ .40 

ALABAMA ............................................................................................... 41 

ALASKA .................................................................................................. 42 

ARIZONA .......................................................................•........................ 43 

ARKANSAS .............................................................................................. 4 9 

CALIFORNIA ............................................................................................ 52 
110 

COLORADO ............................................................................................. 54 

CONNECTICUT ......................................................................................... 57 

DELAWARE ............................................................................................. 59 

DISTRICT OF COLUMBIA ............................................................................ 61 

FLORIDA ................................................................................................ 62 

GEORGIA ............................................................................................... 78 

HAWAII .................................................................................................. 79 

IDAHO ................................................................................................... 80 

ILLINOIS ................................................................................................. 86 

INDIANA ................................................................................................. 87 

IOWA ..................................................................................................... 93 

KANSAS ................................................................................................. 97 

KENTUCK¥ ............................................................................................ 102 

LOUISIANA ............................................................................................ 106 

MAINE ................................................................................................. 114 

MARYLAND ...............................................................•........................... 123 

MASSACHUSETTS ........•.......................................................................... 126 

MICHIGAN ............................................................................................ 128 

MINNESOTA ...................................................................•...................... 132 

MISSISSIPPI .......................................................................................... 135 

MISSOURI. ............................................................................................ 141 

MONTANA ............................................................................................. 143 

NE:BRASKA ............................................................................................ 151 

NEVADA ............................................................................................... 154 

NEW HAMPSHIRE: ................................................................................... 157 

NEw JE:RSEY ........................................................................................ 158 

NEW ME:XIC0 ........................................................................................ 163 

NEW YORK ........•.............................................................•.................... 164 

NORTH CAROLINA .................................................................................. 166 

NORTH DAKOTA ..................................................................................... 169 

0HI0 ................................................................................................... 173 

OKLAHOMA ........................................................................................... 176 

OREGON ........................•..................................................................... 178 

PE:NNSYLVANJA ...................................................................................... 191 

RHODE ISLAND ...................................................................................... 194 

SOUTH CAROLINA .................................................................................. 196 

SOUTH DAKOTA ..................................................................................... 198 

TENNE:SSEE .......................................................................................... 200 

TE:XAS ................................................................................................. 204 

UTAH .................................................................................................. 213 

VE:RMONT ...............................................................................•............. 220 

VIRGINIA .............................................................................................. 221 

WASHINGTON ........................................................................................ 225 

WEST VIRGINIA ..................................................................................... 229 

WISCONSIN ........................................................................................... 234 

WYOMING ............................................................................................. 238 
111 

EXECUTIVE SUMMARY 

Twice in the last 12 years, the U.S. Supreme Court has issued decisions limiting the reach 

of the federal Clean Water Act: Solid Waste Agenry of Northern Cook County v. U.S. Am)' Corps qf 

Engineers, in 200 I, and Rapanos v. United States, in 2006. The result has been confusion among 

judges, regulators, the regulated community, and em~ronmentalists over which waters are "in" 

for purposes of the federal Clean \Vater Act, and which waters are "out" ~--with serious 

consequences for environmental protection, development planning, and enforcement. Absent 

comprehensive federal regulation lor particular surface waters, it falls to the states to decide 

whether or not to protect these waters under state law. 

State legislatures can, without question, enact or amend laws to protect state water 

resources that have lost federal protection, or whose coverage by federal law is now clouded by 

legal uncertainty. A few states have done so, with respect to some waters. But state environmental 

agencies, and some local governments, may also seek to usc their existing legal authorities to 

address water resources that are vulnerable and merit additional protection in the face of a newly 

limited Clean \Vater Act. This 50-state study examines limitations imposed by state law that 

could constrain the ability of state agencies (and, to a lesser extent, localities) to do this. 

findings. Over two-thirds of U.S. states, 36 in all, have laws that could restrict the 

authority of state agencies or localities to regulate waters left unprotected by the federal Clean 

V.'ater Act. These restrictions take the form of absolute or qualified prohibitions that require state 

law to be "no more stringent than" federal law; property rights limitations; or a combination of 

the two. Such provisions constrain, and in some instances eliminate, the authority of state or local 

regulators to protect aquatic resources whose Clean \Vater Act coverage has disappeared or been 

rendered uncertain as a result of the SWAJ'{CC and Rapanos decisions. In 14 states and the District 

of Columbia, there are no such state-law impediments. 

'~Vo more stringent than" laws. Twenty-eight states have laws that could operate to either 

prohibit state agencies from regulating waters more stringently than the federal Clean \Vater Act, 

or limit their authority to do so. The Clean Water Act establishes national minimum standardsessentially, a stringency "floor"-beneath which states are not allowed to fall in their protection 

of water quality. States may, however, protect their waters more rigorously. A "no more stringent 

than" prohibition, found in 13 states, ensures that the federal program floor also will be a slate 

"ceiling" with respect to whatever subject matter the sttingcncy prov~sion covers. A "qualified" 

stringency prov~sion, found in 23 states, makes it more difficult for states to regulate more 

stringently than the federal programs do, but slops short of creating a bar to state agency action. 

Private property rights laws. Twenty-two states have adopted legal protections, often 

contained in state private property rights acts, for the benefit of landovmers whose property 

values may be affected by government regulation. These statutes rarely reference water quality or 

water pollution directly, but they are likely implicated by any new state regulation that aflects the 

uses to which property may be put. Stale laws containing what this study calls 

"compensation/prohibition provisions" can bar or impede new env~ronmcntal regulation, as 

agencies generally cannot alford to pay compensation to have their regulations enforced. In other 

instances, state law requires agencies to perform property impact assessments or take other steps 
112 

that serve as a disincentive for an agency to regulate in any manner that arguably affects property 

rights. Finally, a handful of states have established a property rights ombudsman/ advocate, or set 

up a private property dispute resolution program, which facilitate property owners' ability to 

challenge state regulations. 

Abili!Y rif states to regulate non-CWA waters given these limitations. Half of the states-25 in allhave in place state regulatory protections that cover at least some waters that are either no longer 

subject to federal coverage following SWA.NCC and Rapanos, or whose federal coverage has been 

rendered uncertain. The list of states that attempt to afford these additional state protections 

intersects with the list of states identified by this study as having relevant limitations, as follows: 

• Eight states-including all EPA Region I states except Maine, as well as New York, 

Illinois, and California-have no relevant stringency or property-based limitations provisions and 

regulate waters more broadly than is required by the Clean Water Act. 

• Seven jurisdictions (including the District of Columbia) have no relevant limitations provisions, 

but also do not regulate waters more broadly than is required by the Clean 'Vater Act. 

• Seventeen states have relevant limitations provisions but also regulate waters more broadly than 

is required by the Clean Water Act. 

• Nineteen states have relevant limitations provisions and do not regulate waters more broadly 

than is required by the Clean Water Act. This category includes all EPA Region 8 states, 

and all Region 6 states but New Mexico. These states thus have an identifiable "gap" in 

the coverage of their waters following SWA.NCC and Rapanos, but are constrained (to 

vary:ing degrees) in regulating to fill that gap under exist1ng state laws. 

These findings are summarized in the table below. 

Conclusion. State laws imposing limitations on the authority of state agencies (and to some 

extent, municipalit1es) to protect aquatic resources are commonplace. Although these laws vary 

significantly in their scope and applicat1on, they can constrain, and in some cases eliminate, the 

ability of state regulators to protect waters no longer covered by the federal Clean 'Vater Act, or 

whose federal protection has become uncertain. Since these laws are statutory, they do not affect 

the ability of state legislatures to alter them or to enact additional water protect1ons. However, 

the prevalence of these state constraints across the country, together with the reality that only half 

of all states already protect waters more broadly than is required by federal law, suggest that 

states are not currently "filling the gap" left by U.S. Supreme Court rulings limiting the Clean 

Water Act, and face significant obstacles to doing so. 

2 
113 

INTRODUCTION AND BACKGROUND 

The protections of the federal Clean 'Water Act, enacted in 1972, apply to "navigable 

waters." 1 This jurisdictional term~-on which all of the Act's programs stand-is defined under 

the Act to mean "waters of the United Stales,"2 a phrase that the U.S. Army Corps of Engineers 

(Corps) and the U.S. Environmental Protection Agency (EPA) have further clarified by 

regulation.3 A water body-be it a river, a wetland, an ephemeral stream, a "prairie pothole," an 

oxbow lake, or any other kind of surface water--is covered by a Clean vVater Act program only 

if it is a water of the United States. A water deemed not to be a water of the United States lies 

outside the scope of the fi~deral Act. Protections for these waters, if any, must come from the law 

of the state where it is found. If no state law covers that water or the activity afiecting it, a 

property owner is typically free to dredge, fill, discharge pollutants to, or otherwise alter that 

water at will, for development or any other reason. 

As a result of two U.S. Supreme Court decisions over the last twelve years, the issue of 

state regulation of waters that lie outside of federal Clean vVatcr Act jurisdiction has assumed 

heightened importance. In 2001, the U.S. Supreme Court decided Solid Waste Agen~y of Northern 

Cook Coun!y v. U.5: Amry Corps of Engineers, 4 commonly known as the SWANCC case. In a five-tofour ruling, the Court concluded that Congress did not intend the federal Clean Water Act to 

reach "isolated ponds, some only seasonal" that were located wholly within one state, where the 

lone asserted basis fin· federal jurisdiction was their use as habitat by migratory birds. After 

SW.1JVCC, waters deemed to be "isolated" have been vulnerable to losing their Clean \Vater Act 

protection, and no intrastate, non-na\~gablc, isolated waters have been found to be jurisdictional. 

In 2006, the Supreme Court again addressed the jurisdictional scope of the Clean \Vater 

Act, this Lime in Rapanos u. United States. 5 This badly divided decision lacked a majority opinion 

and stands as the Court's latest word on the reach of the Clean Water Act. Rapanos established 

1 E.g.~ 33 U.S.C. § 12Sl(a), C\VA § IOI(a) (referencing national clean water goals and policies in the context of 

navigable waters); 33 U.S.C. § 13l3(c)(2)(a), C\YA § 303(c)(2)(a) (discussing requirement of water quality standards 

for navigable waters); 33 U.S.C. § 1342(a), C\VA § 402(a) (discussing permits for discharge of pollutants into 

navigable waters); 33 l!.S.C. § l344(a), C\\'A § 40+(a) (providing for issuance of permits for the discharge of dredged 

or fill material into na\·igable waters); 33 lJ.S.C. § l%2(12). CWA § 502(12) (defining "discharge of a pollutant" as 

an addition of any pollutant to navigabk waters). 

'33 U.S.C. § 136217), CWA § 502(7). 

3 33 C.F.R. § 328.3 (Corps); 40 C.F.R. § 230.3(s) (EPA). The two agencies also have issued various joint guidance 

documents on the scope of the term "waters of the United States." Sec '·U.S. Army Corps of 

Enginccrs/Em·ironmcntal Protection Agency, The Scope of Clean \'Vater Act jurisdiction after Sff'/LVCC," Jan. 15, 

2003. Sre also U.S. Army Corps of Engineers/Environmental Protection Agency, "Clean \Vater Act Juri.'5diction 

Following the U.S. Supreme Court's Decision in Rapanos u. Unitrd States & Cambell v. United States," Dec. 2, 2008 

(currently in effect), available at 

http:/ /watcr.cpa.gov/lawsrcgs/guidancc/wctlands/upload/2008_12_3_\~Ttlands_C\VA_Jurisdiction_Following_R 

apanosl20203.pdf; and U.S. Army Corps of Engineers/U.S. Environmental Protection Agency, "Draft Guidance 

on Identifying \.Vaters ProtcctC'cl by the Clean 'Vater Act," ~lay 2, 2011 (still under review and not in effect), 

available at http: //water .epa.gov /lawsrcgs/ guidance/ \Vctlands/ upload/ \\'ous_guidancc_ 4-20 ll.pdf. 

4 531 u.s. 159 (2001). 

'547 U.S. 715 (2006). 

3 
114 

two different rules for determining whether wetlands (and, perhaps, other waters) arc 

jurisdictional under the federal Act. justice Scalia's plurality opinion would find Clean Water Act 

coverage for a wetland where the wetland has a continuous surface connection with a relative!J pennanenl 

body of water that is connected to traditional interstate navigable waters6 Justice Kennedy's 

concurring opinion in Rapanos would find coverage for wetlands where there is a significant nexus 

between the wetlands and downstream waters~-~-i.e., where the wetlands, "either alone or in 

combination with similarly situated lands in the region, significantly affect the chemical, physical, 

and biological integrity of other covered waters more readily understood as 'navigable."'7 

Rapanos has generated federal litigation arising out of more than two thirds of all U.S. 

states. Now almost seven years since the case was decided, the courts of appeals still differ as to 

which Rapanos opinion, or opinions, provide the proper test for Clean \Yater Act jurisdiction. 

Three U.S. circuit courts of appeals have ruled that Clean \Vater Act jurisdiction exists if a water 

meets either the Kennedy significant nexus test or the Scalia plurality test.3 This is also the position 

taken by EPA, the Corps, and the Justice Departmcnt.9 Three other circuits have approved the 

use of the Kennedy significant nexus test to findjurisdiction~ without necessarily foreclosing the 

possibility that the Scalia plurality test could be used in future cases10 One circuit has held that 

Kennedy's significant nexus test alone provides the rule of Rapanos. 11 Finally, two circuits have 

each considered a post-Rapanos case presenting questions of Clean \Vater Act jurisdiction but 

declined to decide on a controlling legal standard. 12 The remaining federal circuit courts have 

6Jd. at 742 (Scalia,.J., plurality). In other \\.rords, the wetland must be linked to downstream waters by a "water of the 

United States." !d. However, the plurality \vould "not necessarily exclude" from the category of ''relatively 

permanent waters" rivers or streams that arc seasonal or that dry up under extraordinary circumstances. !d. at 733 

11.5. 

7 !d. at 780 (Kcnnrdy,J, concurring). 

8 See United States''· Johnson, 467 F.3d 56 (1st Cir. 2006); United States v. Donovan, 661 F.3d 174 (3d Cir. 2011); United 

States v. Bailry, 571 F.3d 791 (8th Cir. 2009). In Rapanos,.Justirc Stf'vcns foresaw the confusion that was likely to arise 

from the Court's divided ruling and proposed precisely this approach for interpreting the decision. Raparws, 547 U.S. 

at SIO (Stevens, J., dissenting) ("Given that all four Justices \vho have joined this opinion would uphold the Corps' 

jurisdiction in both of these cases-and in all other cases in which either the plurality's or Justice Kennedy's test is 

satisfied-on remand each of the judgments should be reinstated if either of those tests is mrt.") (emphasis in 

original). 

'See supm note 3, Corps/EPA 2008 guidance at 3, and Corps/EPA 20!! proposed draft guidance at 2. See alro 

"Interpreting the Effect of the U.S. Supreme Court's Recent Decision in the joint Cases of Rapanos v. Um.ted Staffs 

and Cambell v. LZS Amry Corps?! E~1.rineers on 'The 'Vaters of the United Stat\s,"' Hearing Before the Subcomm. on 

Fish, \ViJdlifc, and "rater of the S. Corum. on Environment and Puhlic \\'arks, I 09th Cong. 16 (2006) (statement of 

John C. Crudcn, then-Deputy Assistant Attorney General, Environment and Natural Resources Division, U.S. 

Department ofjusticr) (reporting that thr Department has argued to courts that a wetland is jurisdictional under the 

Clean 'Vater Act if either the Rapanos Scalia plurality test or Justice Kennedy's significant nexus test is met in a 

particular t:1.ct situation). 

10 See Precon Develapment Corp.J Inc. v. [}S. Arm)' Corps 

Excavating, Inc., 464 F.3cl 723 (7th Cir. 2006) (per 

993 (9th Cir. 2007), withdrawing and superseding on denial 

Watch v. Wilcox, 633 F.3d 766 (9th Cir. 20 !1 ), amending 

11 UnitedStatesv. Robison, 505 F.3d 1208 (llth Cir. 2007). 

633 F.3d 278 (4th Cir. 20!1); United States v. Gerke 

California River Watch v. City of Healdsburg, 496 F.3d 

457 F. 3d 1023 Cir. 2006); JVorthern California River 

at620 F.3d !075 (9th Cir. 2010). 

" United States v. Lucas, 516 F. 3d 3!6 (5th Cir. 2008); United States"· Cundiff, 555 F.3d 200 (6th Cir. 2009), affirming 480 

F. Supp. 2d 9+0 (W.O. Ky. 2007). 

4 
115 

not addressed the issue. No appeals court has ruled that the Scalia plurality test alone provides 

the rule of Rapanos. Essentially, the courts agree only that if a water satisfies the Kennedy 

significant nexus test, that water is jurisdictional. However, unless and until new federal 

regulations are issued by EPA and the Corps, the significant nexus test must be applied on a casehy-case basis, rather than to categories ofwaters. 13 

The legacy of SH~4NCC and Rapanos has been to sow confusion among judges, regulators, 

the regulated community, and cnv~ronmentalists over which waters are "in" and which waters 

are "out" for purposes of the federal Clean \Vater Act -with very real consequences both for 

protecting and using America's water resources 14 and for ensuring sound federal enforcement. 15 

The resulting post-SH'AJ{CC/Rapanos "gap" in federal Clean \Vater Act coverage has focused 

renewed attention on the states. They, of course, remain free to protect or otherwise regulate 

under state law any waters that lie heyond the reach of the Clean \Vater Act, or waters whose 

coverage under the federal Act has heen rendered uncertain by the two Supreme Court 

decisions. State legislatures can adopt new legal protections as they like, and several states have 

responded legislatively to the change in federal law. But enacting state legislation is a slow and 

difficult endeavor, given competing political priorities at the state capital. It is state agenciesand typically the state department of environmental protection---that usually possess the 

expertise (as well as a legislative mandate) to address water protection issues through regulatory 

and permitting processes that target the waters of greatest concern. Additionally, cities and 

counties, which arc often more knowledgeable about local conditions and needs than distant state 

legislators, may have the greatest incentive to protect their water resources. 

So the question becomes, in the wake of SW!LNCC and Rapanos, can state agencies and 

localities readily and effectively "fill the gap" in federal protection for state surface waters, relying 

on existing state legal authorities under water pollution control laws, dredge-and-fill laws, or 

other state statutes?1" The results of this study indicate that, in many instances, the practical 

answer is "no"-~or only at substantial expense and with potential difficulty. The explanation lies 

l3 See Rapanos, 547 U.S. at 782 (Kennedy,]. concurring). For more on the significant nexus test, and for a detailed 

treatment of the current science and law of Clean 'Vater Act jm;sdiction-····· including summaries of all post-Rapanos 

court rulings natiom,.ridc-sce E1nironmcntal La\V Institute, Clean JVater Act]urisdictional Handbook, Second Edition (l\iiay 

2012), available at http://w\vw.distorc.org/rcports_detaiLasp?ID= ll42S. 

H See, e.g., Environmental La\V Institute; Ame-rica's Vulnerable JVaters: Assessing the .Nation's Por!folio qf Vulnerable Aquatic 

Resources Since Rapanos v. United States (Aug. 20 II) (identifying a range of aquatic resource types that the U.S. Army 

Corps of Engineers often determines arc not protected by thC' G\VA), available at 

http:/ /w\vw.distore.org/rcports_dctaiLasp?ID= 11416. 

L'i See) e.,Jt., Charles Duhigg and janet Roberts, "Rulings RC'strict Clean \Vater Act, Foiling E.P.A.," J\fi.v 10rk Times, 

Feb. 28, 2010, at AI ("Thousands of the nation's largest water polluters arc outside the Clean \Vater Act's reach 

because the Supreme Court has left uncertain which \Vatcnvays arc protected by that law, according to interviews 

\vith regulators."). See also rvicmorandurn from Granta Y. Nakayama, EPA Ass't Administrator for Enforcement & 

Compliance Assurance, to Benjamin Grumbles, EPA Ass't Administrator for \Vater, Re: Clean \\'atcr .Act 

Enforcement) Post-Rapanos (Nlar. 4, 2008) (discussing negative effect of Rapanos on hundreds of enforcement cases). 

ltl Although this report focuses mainly on regulation by state agencies, localities, too, can act to protect their local 

water resources-including so-caHcd "isolated" .mrfacc waters. For example, Lake County, Illinois has an ordinance 

that expressly protects isolated wetlands and intermittent streams that arc not su~jcct to Clean \Vater Art 

jurisdiction. See Lake County Stormwatcr ~Ianagcmcnt Commission, \\'atcrshcd Development Ordinance at 72-73 

(eff. i'>,Tov. 18, 2008) (defining "isolated waters of Lake County"). 

5 
116 

in two kinds of state laws: those that bar or limit the adoption of regulations that are "more 

stringent" than corresponding federal laws or rules, and those that constrain government action 

in service of protecting private property rights. Past articles and reports have addressed the 

subject of so-called "no more stringent than" laws. In 1995, articles published in the Environmental 

Law Reporter and the A1aryland Law Review were among the first to explore the application of these 

state laws in the field of em~ronmental protectim1. 17 The former State Em~ronmental Resource 

Center also undertook work in this area.IG A 2004· law student article expanded the discussion of 

state-imposed regulatory limitations by examining the role of state private property rights acts·· 

and explored what state stringency and property rights laws meant for wetlands protection, postSWANCCI9 Other writings also have highlighted the rise of state private property rights laws.2° 

This study builds on and updates these earlier efforts, in the context of how state legal 

limitations could constrain the ability of state agencies and localities to regulate waters that lie 

outside of the scope of the Clean \Vater Act, as it is interpreted post-SWANCC and post-Rapanos. 21 

This report presents an overview, discussion, and synthesis of the study's findings and their 

implications. Appendix 2 contains a detailed profile for every state, including a discussion of and 

citations to that state's stringency prohibitions and property-based limitations. Each state profile 

concludes with a snapshot of how that state's existing legal framework may (or may not) already 

provide legal protections for waters that are subject to a loss of protection under federal law. 

17 See James ~1. ~1cElfish, Jr., ":Minimal Stringency: Abdication of State Innovation," 25 Environmental Law 

Reporter 10003 (1995) (hereinafter ":Minimal Stringency"); Jerome NL Organ, ''Limitations on State Agency 

Authority to Adopt Environmental Standards :More Stringent than federal Standards: Po1icy Considerations and 

Interpretive Proble-ms," 54 rvid. L. Rev. 1373 (1995) (hereinafter "Limitations on State Agency Authoriti'). See also 

Environmental La\~;-· Institute, E'nforceable State A1echanisms)Or the Contml q/}1/onpoint Source JYater Pollution, Appendix: 

Statt "No rviore Stringent" Laws (Oct. I 997) (rollccting state stringency statutes applicable to regulation of nonpoint source po1lutants), reproduced by U.S. EPA at http:/ 1\vatcr.cpa.gov/polwastc/nps/appendix.cfm. 

ll:l See State Environmental Resource Center (SERC), "Issue: 'No :More Stringent Laws" (2004), available at 

http:/ hvww.scrconlinc.org/noi\1orcStringent.htmL In 20041 SERC became the \\lisconsin office of Defenders of 

Wildlife. 

19 Andrew Hecht, "Obstacles to the Devolution of Environmental Protection: States' Self-Imposed Limitations on 

Rulcmaking," 15 Duke Envtl. L & Pol'y F. 105 (2004) (student note) (hereinafter '"Obstacles to Devolution'} But see 

R. Benjamin Lingle, "The Constitutionality and Economic Impacts ofFederalJurisdiction of\VC't1ands: The Clean 

\Vater Restoration Act of 2009," 62 Fla. L. Rev. 1091, 1112~14 (ScpL 2010) (student note) (arguing that because 

state legislatures that wish to expand state protection of waters arc free to disable state stringcncr limitations that 

stand in the way, any prohihition on states created by such rules is, "'at !('ast in part, illusory''). 

Georgctmvn Environmental Law and Policy Institute, The Track Rerrm/ on Takings Le_!!,islation: Lessons from 

L1bomtories (2008), repuhlished at 28 Stan. EnvtL LJ. 439 (2009) (hereinafter Ti·ack Record) (examining 

passagr anrl application of st:1tc bws th<1t contain t~1king"; "cornp('nsation" rnC'asurcs, t.vith particular emphasis on the 

experiences of Florida and Oregon). See also John D. Echeverria, "The Politics of Property Rights," 50 Okla. L. Rev. 

:151 (1997) (critically analyzing property rights as a political issue; John R. Nolon, "Takings and Prope-rty Rights 

Legislation," Envtl. Outlook, v. 2, no. 2 (v,rinter 1996) (examining trends in state regulatory takings lcgi::,lation). 

21 This study docs not consider the follmving environmental subject matter areas vvherc state ''no more stringent 

than" laws have proliferated over the years: surface mining regulation, hazardous waste disposal, regulation of 

underground. storage tanks, and clean air rulemaking. For discussions of the state stringC'ncy statutes that cover these 

areas, sec generally "'Nlinima] Stringency" and. "Limitations on State Agency Authority/' supra note 17, and 

"Obstacles to Drvolution," supra note 19. 

It is also important to note, as discussed at page ~{5, that some states that do have stringency or property rights 

limitations nevertheless regulate waters more hroadly than is required under the Clean \VaEcr Act. 

6 
117 

*Visit https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf to view the entire report. 
118 

LETTER SUBMITTED BY REPRESENTATIVE COLLEEN HANABUSA

Chairman Andy Biggs 

House Committee on Science, Space, 

and Technology 

Subcommittee on Environment 

2321 Rayburn House Office Building 

Washington, DC 20515 

November 28,2017 

Ranking Member Suzanne Bonamici 

House Committee on Science, Space, 

and Technology 

Subcommittee on Environment 

2321 Rayburn House Office Building 

Washington, DC 20515 

Dear Chairman Biggs and Ranking Member Bonamici, 

On behalf of our millions of supporters, the undersigned hunting, fishing, and conservation 

groups write to express our support of the critical Clean Water Act protections laid out in the 

2015 Clean Water Rule and our opposition to rolling back those protections. 

The rulemaking process for the Clean Water Rule began in 2011 because the scope of the Clean 

Water Act- and which waters fell within its protection- had become unclear in the wake of two 

U.S. Supreme Court cases. Stakeholders representing the regulated community, irrigators, local 

governments, Congress, the Chief Justice on the Supreme Court, and others had all urged the 

agencies to write a clarifying rule. The agencies provided ample time for stakeholders to engage 

in the rulemaking process- they took comments for over 200 days, from April21 to November 

14, 2014 and held over 400 stakeholder meetings across the country. During the 2015 Clean 

Water Rule mlemaking process, over 800,000 people commented in support of Clean Water Act 

protections for smaller streams and wetlands, and over the past several months, more than 

500,000 stakeholders have commented in opposition of attempt to repeal the mle. 

In order to ensure a strong scientific and technical foundation for the 2015 Clean Water Rule, 

EPA's Office of Research and Development issued the report Connectivity ofStreams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. In the 

report, the EPA reviewed more than 1,200 peer-reviewed publications and summarized the 

current scientific understanding about the connectivity and mechanisms by which streams and 

wetlands, singly or in aggregate, affect the physical, chemical, and biological integrity of 

downstream waters. This report underwent an external review by EPA's Science Advisory Board 

consisting of 27 topic experts representing independent experts in their field providing a range of 

expertise required to assess the scientific and technical aspects of connectivity. The EPA 

Connectivity report represents the state-of-the-science on the connectivity and isolation of waters 

in the United States. Hunters and anglers strongly supported the report given its technical and 

scientific nature. 

Hunters and anglers broadly celebrated the Clean Water Rule because it would help clarify 

federal jurisdiction over "Waters of the United States" and conserve the roughly 60 percent of 

stream miles and 20 million acres of wetlands (and thereby the downstream waters into which 

they flow) at risk of being polluted or destroyed because or the jurisdictional confusion. These 

waters contribute to the drinking water supplies of 117 million Americans, protect communities 

from flooding, and provide essential fish and wildlife habitat that supports a robust outdoor 

recreation economy worth $887 billion. Moreover, wetlands filter pollution from agriculture and 
119 

storm water runoff, recharge groundwater supplies, and store large volumes of flood water. As 

we have seen from recent devastating natural disasters, protecting wetlands, which serve as flood 

mitigation systems, is critical. In the United States, 9.6 million homes and $390 billion in 

property arc located in 15,000 square miles of flood-prone areas. During Hurricane Sandy alone, 

wetlands prevented $625 million in direct t1ood damages. 

Every year, over 4 7 million Americans head into the field to hunt or fish. The hunting and 

fishing industries in the United States directly employ 483,000 Americans and adds billions of 

dollars in additional spending. The economic benefits of hunting and fishing- which total $200 

billion a year- are especially pronounced in rural areas, where money brought in during fishing 

and hunting seasons can be enough to keep small businesses operational for the entire year. 

However, hunting and fishing do not merely provide economic and conservation benefits. They 

are a heritage that we cherish and want to pass along to our children. If the nation loses streams 

to nutrient and other pollution and wetlands are drained, it loses fish, wildlife, and sporting 

access along with them. 

As the subcommittee also considers the role of states in its upcoming hearing, we ask members 

to keep in mind that while 46 states have sought- and obtained- delegation of the§ 402 point 

source discharge program, only two states conduct their own § 404 permit programs. It has been 

17 years since the U.S. Supreme Court issued its SWANCC decision and over a decade since the 

Rapanos decision, yet additional states have not asked for delegation of the § 404 permit 

program since that time. Mostly, it is just too expensive for states to assume responsibility for the 

§ 404 program, as a 7() 15 lllontunu stud' demonstrated. There is no evidence to support a claim 

that states would step in to protect wetlands through state regulatory programs should the Clean 

Water Act protections for headwater streams and wetlands be rolled back. This would put the 

wetlands that sportsmen and women love at risk once again. 

Our country's waterways and the American public have benefitted enormously from the Clean 

Water Act. Narrowing the scope of waters protected by the Clean Water Act jeopardizes our 

progress towards achieving fishable, swimmable, and drinkable water for all Americans. 

We thank the committee for its consideration of the views expressed in this letter. 

Sincerely, 

American Fisheries Society 

Arizona Wildlife Federation 

13ackcountry Hunters & Anglers 

Fly Fishers International 

Izaak Walton League of America 

National Wildlife Federation 

Theodore Roosevelt Conservation Partnership 

Trout Unlimited 
120 

LETTER SUBMITTED BY REPRESENTATIVE MARK TAKANO

November 29, 2017 

The Honorable Lamar Smith 

Chairman 

House Committee on Science, Space, 

and Technology 

2321 Rayburn House Office Building 

Washington, DC 20515 

The Honorable Andy Biggs 

Chairman 

Subcommittee on Environment 

House Committee on Science, Space, 

and Technology 

2321 Rayburn House Office Building 

Washington, DC 20515 

The Honorable Eddie Bernice Johnson 

Ranking Member 

House Committee on Science, Space, 

and Technology 

2321 Rayburn House Office Building 

Washington, DC 20515 

The Honorable Suzanne Bonamici 

Ranking Member 

Subcommittee on Environment 

House Committee on Science, Space, 

and Technology 

2321 Rayburn House Office Building 

Washington, DC 20515 

RE: 60+ Groups from Across the Country Urge Support for the Critical Safeguards in the 

2015 Clean Water Rule 

Dear Chairman Smith, Chairman Biggs, Ranking Member Johnson, and Ranking Member 

Bonamici, 

In light of the House Science, Space, and Technology Subcommittee on the Environment 

holding a hearing to discuss 'The Future of WOTUS: Examining the Role of States," we write 

on behalf of our millions of supporters to express our support of the critical clean water 

protections laid out in the 2015 Clean Water Rule, and our opposition to rolling back those 

necessary protections. 

The Clean Water Rule, finalized by EPA and Army Corps in 2015, was the result of vigorous 

public engagement over several years and developed using clear science and legal reasoning. The 

rulemaking was also a response to a request by stakeholders-ranging from states to regulated 

dischargers to environmental groups-for more clarity regarding which waterways were 

protected under the Clean Water Act. The agencies provided ample time for stakeholders to 

engage in the mlemaking process they took comments for over 200 days, from April 21 to 

November 14, 2014, and held over 400 stakeholder meetings across the country. Over one 

million people have commented in support oflhe protections laid out in the 2015 Clean Water 

Rule since it was first proposed in 2014. 

Years of scientific review, which included the findings of more than 1,200 peer-reviewed 

publications, led the agencies to conclude that headwater, seasonal, and rain-dependent streams, 

along with numerous wetlands and other water bodies, serve critical functions and should be 

entitled to the protections laid out in the Clean Water Act. Notably, one in three Americans 

receive drinking water from public water systems that draw supply from the kinds of streams the 

Clean Water Rule sought to protect. Moreover, wetlands filter pollution from contaminated 

runoff~ recharge groundwater supplies, and store large volumes of flood water. As we have seen 
121 

from recent extreme weather events, protecting wetlands, which serve as flood mitigation 

systems, is critical 9.6 million homes and $390 billion in property are located in 15,000 square 

miles of flood-prone areas. During Hurricane Sandy alone, wetlands avoided $625 million in 

direct flood damages. 

The Clean Water Rule also supports the outdoor recreation economy. According to the Outdoor 

Industry Association, Americans spend $887 billion annually in outdoor recreation, and the 

outdoor recreation economy is responsible for 7.6 million American jobs. Streams and wetlands, 

many of which would be protected by the 2015 rule, provide essential fish and wildlife habitat 

and other recreational opportunities that are crucial for hunters, anglers, paddlers, and hikers, as 

well as the small businesses they support. Indeed, according to a bipartisan survey, 83 percent of 

hunters and anglers supported the 20 15 Clean Water Rule. 

Our country's waterways and the American public have benefitted enormously from the 

protections laid out in the 1972 Clean Water Act. However, by attacking the Clean Water Rule 

and attempting to redefine the Waters ofthe United States to narrow the scope of waters 

protected, the Trump Administration is defying the intent of the Clean Water Act itself, 

jeopardizing progress towards achieving more fishable, swimmable, and drinkable water for all 

Americans. 

We thank the committee for its consideration ofthe views expressed in this letter and urge 

members to keep in mind the necessary public health and environmental protections laid out in 

the Clean Water Rule as it is discussed in the hearing today. 

Sincerely, 

National Groups 

Alaska Wilderness League 

American Rivers 

American Sustainable Business Council 

Clean Water Action 

Earth justice 

Endangered Species Coalition 

Environment America 

Hip Hop Caucus 

League of Conservation Voters 

League of United Latin American Citizens 

National Audubon Society 

National Parks Conservation Association 

Natural Resources Defense Council 

Physicians for Social Responsibility 

River Network 

Sierra Club 

Voces 
122 

Regional Groups 

Connecticut River Conservancy 

John Flannagan Dam Advisory Group 

Southern Environmental Law Center 

Tennessee Riverkeeper 

Local/State-Based Groups 

Alabama Rivers Alliance, Alabama 

Black Warrior Riverkeeper, Birmingham, Alabama 

Cahaba River Society, Birmingham, Alabama 

Choctawhatchee Riverkeeper, Troy, Alabama 

Hurricane Creekkeeper, Tuscaloosa, Alabama 

Little River Waterkeeper, Fort Payne, Alabama 

One World Adventure Company, Fort Payne, Alabama 

Copper River Watershed Project, Copper River Drainage, Alaska 

Dry Creek Conservancy, Sacramento, California 

Environment Florida, Florida 

Florida Wildlife Federation, Tallahassee, Florida 

Save the Manatee Club, Florida 

Hanalei Watershed Hui, Hanalei, Hawaii 

Idaho Conservation League, Idaho 

Prairie Rivers Network, Champaign Illinois 

Environmental Law & Policy Center, Chicago, Illinois 

Illinois Council of Trout Unlimited, Illinois 

Maine Rivers, Maine 

Massachusetts Rivers Alliance, Massachusetts 

Freshwater Future, Michigan 

New Hampshire Rivers Council, New Hampshire 

Hackensack Riverkeeper, Hackensack, New Jersey 

Onondaga Environmental Institute, Syracuse, New York 

Groundwork Cincinnati-Mill Creek, Cincinnati, Ohio 

Mill Creek Watershed Council of Communities, Cincinnati, Ohio 

Ohio Environmental Council, Columbus, Ohio 

WaterWatch of Oregon, Oregon 

Columbia Riverkeeper, Hood River, OR/Columbia River Basin 

Environment Oregon, Portland, Oregon 

TN Environmental Council, Nashville, Tennessee 

Environment Texas, Austin, Texas 

Utah Rivers Council, Salt Lake City, Utah 

Friends of the Russell Fork, Virginia 

Virginia League of Conservation Voters, Virginia 

Virginia Conservation Network, Virginia 

Milwaukee Riverkeeper, Milwaukee, Wisconsin 

Northwest Watershed Institute, Washington 

Puget Soundkeeper Alliance, Seattle, Washington 

River Alliance of Wisconsin, Wisconsin 

OVEC-Ohio Valley Environmental Coalition, Huntington, West Virginia 
123 

LETTER SUBMITTED BY REPRESENTATIVE PAUL TONKO

September 25, 2017 

Ms. Donna Downing 

Office of Water ( 4504-T) 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue NW 

Washington, DC 20460 

Ms. Stacey Jensen 

Regulatory Community of Practice (CECW-CO-R) 

U.S. Army Corps of Engineers 

441 G Street NW 

Washington, DC 20314 

RE: Public Comments on EPA-HQ-OW-2017-0203, Definition of"Waters of the United States"-

Recodification of Pre-existing Rules 

Dear Ms. Downing and Ms. Jensen: 

We the undersigned are professional aquatic scientists from across the United States with broad 

knowledge of the physical, chemical, and biological characteristics of streams, wetlands, and other 

aquatic ecosystems. We write in opposition to repeal of the Clean Water Rule because we support 

science-based environmental policy, and current science overwhelmingly supports the existing Clean 

Water Rule. 

We are concerned that rescinding the Clean Water Rule will have detrimental impacts on ephemeral and 

intermittent streams and wetlands. The EPA's Connectivity Report, and the over 1,200 peer-reviewed 

scientific publications on which it is based, clearly established the vital importance of these natural 

features to clean water and the health of the nation's rivers. Repealing the Clean Water Rule, and thus 

removing protections for a significant portion of waters in the United States, violates the letter and spirit 

of the Clean Water Act. 

The Clean Water Act (CW A) defines traditionally navigable waters, interstate waters, and territorial seas 

as "waters of the United States"; this definition has been further refined by case law and agency guidance 

over the last few decades. However, uncertainty regarding the jurisdictional reach of the CWA following 

several Supreme Court decisions [United States v. Riverside Bayview Homes, Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States J hampered 

protection for many of the nation's waters, putting our rivers, small streams, and wetlands at risk. The 

Clean Water Rule provides clarity regarding the scope of the protections afforded by the CWA and 

describes which types of waters are and are not categorially protected by the CWA. In so doing, the Clean 

Water Rule ensures that tributaries, including ephemeral and intermittent streams, and waters adjacent to 

those tributaries, including wetlands and oxbows, are protected as jurisdictional waters based on their 

connections to the navigable waterways that have traditionally been recognized as waters of the United 

States. Repealing the Rule will again put these ecologically significant waterways at risk. 
124 

Scientific studies demonstrate that tributary streams, adjacent waters, and wetlands are chemically, 

physically, and biologically connected to downstream waters, including traditional navigable waters, 

interstate waters, and territorial scas. 1 Streams, wetlands, and adjacent waters affect the functions and 

integrity of downstream waters through the delivery of water (i.e., flow); transport of nutrients, sediment, 

and contaminants; and by providing foraging, breeding, spawning, and nursery habitat for organisms 

(e.g., fish, macroinvertebrates, waterbirds) residing in, or associated with, waterways that are unarguably 

protected by the CW A, as well as pathways for the movement of these organisms. Streams, wetlands, and 

adjacent waters can also delay or control the release of materials to downstream waters: they store water 

and sediment; retain and transform nutrients, metals, and pesticides; and recharge groundwater. 

Degradation of these connected aquatic ecosystems can lead to the loss or reduction of important 

ecological functions that benefit downstream waterbodies-including flood attenuation, sediment 

trapping, and nutrient and pollutant removal. As a result, communities may be impacted by increased 

flood damage, reduced recreational opportunities, impeded navigation, compromised fisheries, and 

increased costs of water filtration for drinking supply and industrial use if these waterways are not 

protected. 

The Clean Water Rule was developed using the best available science from high-quality, peer-reviewed 

studies and was subject to an exhaustive outreach, review, and public comment process. We are 

disappointed that the current Administration has proposed dismantling the Rule with minimal 

consultation and without scientific justification. The undersigned scientists strongly oppose the repeal of 

the Clean Water Rule. 

Sincerely, 

Laura S. Craig, PhD 

Director 

Science & Economics Program 

American Rivers 

Washington, District of Columbia 

Michele Adams, PE 

Founder 

Meliora Environmental Design, LLC 

Phoenixville, PA 

Paul Adamus, PhD 

Courtesy Faculty 

Oregon State University 

Corvallis, OR 

1 U.S. Environmental Protection Agency, Office of Research and Development, Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, See 

httpsJ/cfpub.epa.qov!ncealrisk!recordisplay.cfm?deid•296414 
125 

Andrea Albertin, PhD 

Regional Water Resources Extension Agent 

Institute ofF ood and Agricultural Sciences 

University of Florida 

Quincy, FL 

Daniel Allen, PhD 

Assistant Professor 

Department of Biology 

University of Oklahoma 

Norman, OK 

Dennis Allen, PhD 

Research Professor 

Baruch Marine Field Laboratory 

University of South Carolina 

Georgetown, SC 

Cary Aloia 

Partner and Biologist 

Wetland Dynamics, LLC 

Monte Vista, CO 

Richard Ambrose, PhD 

Professor 

Institute of Environment and Sustainability 

University of California, Los Angeles 

Los Angeles, CA 

Steve Amish, MS 

Research Scientist 

Flathead Lake Biological Station 

University of Montana 

Missoula, MT 

John Anderson, MS 

Wetland Inventory and Mapping Specialist 

GeoSpatial Services 

Saint Mary's University of Minnesota 

Minneapolis, MN 

N Arbuckle, PhD 

Professor 

Corvallis, OR 

Marcelo Ardon, PhD 

Assistant Professor 

Department of Forestry and Environmental 

Resources 

North Carolina State University 

Raleigh, NC 

William Arnold, PhD, PE 

Professor 

Department of Civil, Environmental, and GeoEngineering 

University of Minnesota 

Minneapolis, MN 

John Arway, MS 

Executive Director 

Pennsylvania Fish & Boat Commission 

Harrisburg, P A 

Daniel Baker, PhD, PE 

Faculty Instructor 

Civil and Environmental Engineering 

Department 

Colorado State University 

Fort Collins, CO 

Michelle Baker, PhD 

Professor 

Department of Biology and the Ecology Center 

Utah State University 

Logan, UT 

Rebecca Barnes, PhD 

Assistant Professor 

Environmental Program 

Colorado College 

Colorado Springs, CO 

Louis Barr, MS 

Marine Biologist (Retired) 

National Marine Fisheries Service 

Juneau, AK 

Molly Baughman 

Environmental Scientist 

CHA Consulting, Inc. 

Indianapolis, IN 

Bruce Bayne, MS 

Principal Wetland Scientist 

Ardmore, PA 

Patrick Belmont, PhD 

Associate Professor 

Department of Watershed Sciences 

Utah State University 

Logan, UT 
126 

Sarah Brooke Benjamin, MS 

Environmental Monitoring Coordinator 

Public Works Department, Natural Resources 

City of Bellingham 

Bellingham, W A 

Emily Bernhardt, PhD 

Professor 

Department of Biology 

Duke University 

Durham, NC 

Elisabeth Brackney, MS, PWS 

Wetland Ecologist (Retired) 

Water Resources Division 

Nez Perce Tribe 

Moscow, ID 

Janice Brahney, PhD 

Assistant Professor 

Department of Watershed Sciences 

Utah State University 

Logan, UT 

Trevor Branch, MS, PhD 

Associate Professor 

School of Aquatic and Fishery Sciences 

University of Washington 

Seattle, WA 

Amanda Bronneck 

Senior Biologist 

AECOM 

Mechanicsburg, P A 

Bryan Brown, PhD 

Associate Professor 

Biological Sciences Department 

Virginia Polytechnic Institute and State 

University 

Blacksburg, VA 

Gordon Brown, PhD 

Senior Environmental Specialist 

Jupiter, FL 

Phaedra Budy, PhD 

Professor 

Department of Watershed Sciences 

Utah State University 

Logan, UT 

Amy Burgin, PhD 

Associate Professor 

Department of Ecology & Evolutionary Biology 

University of Kansas 

Lawrence, KS 

Analiese Burns, PWS 

Manager 

Bellingham, WA 

John Callaway, PhD 

Professor 

Department of Environmental Science 

University of San Francisco 

San Francisco, CA 

Laura Calvert 

Environmental Scientist II 

Dieffenbauch & Hritz, LLC 

Morgantown, WV 

Krista Capps, PhD 

Assistant Professor 

Odum School of Ecology 

University of Georgia 

Athens, GA 

Mark Carabetta, PWS 

Senior Environmental Sciences Project Manager 

Milone & MacBroom, Inc. 

New Paltz, NY 

Bradley Cardinale, PhD 

Professor and Cooperative Institute of Great 

Lakes Research Director 

School of Environment and Sustainability 

University of Michigan 

Ann Arbor, MI 

Scott Carlson 

Assistant Fisheries Manager 

New Brandon, LLC 

Paul Smiths, NY 

Stephen Carpenedo, MS, PWS 

Senior Wetland Scientist 

Montana Department of Environmental Quality 

Helena, MT 
127 

Kelly Carter-Lynn, MS 

Biological Sciences Laboratory Coordinator 

School of STEM 

University of Washington 

Seattle, WA 

Samuel Casne, MS 

Retired 

Regulatory Program; Department of Natural 

Resources 

Corps of Engineers; King County, W A 

Seattle, WA 

Benjamin Cayton, GIT 

Environmental Resources Specialist 

Landfill Closure Assistance Program 

West Virginia Department of Environmental 

Protection 

Charleston, WV 

Douglas Chabrak, PWS 

Senior Project Manager 

Amy S Greene Environmental Consultants, Inc. 

Flemington, NJ 

Sarah Chamberlain, MS 

Research Associate 

Geography Department 

Pennsylvania State University 

University Park, PA 

Richard Chinn, MS, PWS 

Environmental Instructor 

Richard Chinn Environmental Training, Inc. 

Brandon, FL 

Jason Chircop, MS 

Restoration Scientist 

Intermountain Aquatics, Inc. 

Driggs, ID 

Norman Christensen, PhD 

Professor Emeritus 

Division of Environmental Sciences & Policy 

Duke University 

Durham, NC 

Nichoel Church, PWS 

Environmental Scientist 

Snyder & Associates, Inc. 

Ankeny, IA 

Micky Clemmons, MS 

Senior Environmental Scientist 

Michael Baker International 

Waynesville, NC 

Emily Coba, MS 

Environmental Scientist 

RH2 Engineering, Inc. 

Bothell, WA 

Maureen Coleman, PhD 

Professor 

Department of the Geophysical Sciences 

University of Chicago 

Chicago, IL 

Bruce Collette, PhD 

Senior Scientist (Retired) 

National Systematics Laboratory 

National Marine Fisheries Service 

Casanova, VA 

Kasie Collins, PWS 

Wetland Scientist 

Belchertown, MA 

Susan Colvin, PhD 

Assistant Professor 

Dixmont, ME 

Michael Compton, MS 

Aquatic Zoologist 

Heritage Branch 

Kentucky State Nature Preserves Commission 

Frankfort, K Y 

Jan Conitz, MS 

Fisheries Biologist 

Alaska Region Subsistence Program 

US Fish & Wildlife Service 

Fairbanks, AK 

Jacqueline Cook, MS 

Senior Ecologist 

Quest Ecology, Inc. 

Wimauma, FL 

Michelle Cook, MS 

Environmental Scientist 

Georgetown, K Y 
128 

Sarah Cooke, PhD 

Senior Wetland Ecologist 

Cooke Scientific 

Seattle, WA 

Carrie Cook-Tabor, MS 

Fish Biologist 

Western Washington Fish & Wildlife 

Conservation Office 

US Fish & Wildlife Service 

Lacey, WA 

David Costello, PhD 

Assistant Professor 

Department of Biological Sciences 

Kent State University 

Kent, Oil 

David Cowell, MS, PWS 

Senior Wetland Scientist 

Hancock Associates 

Marlborough, MA 

Allison Cowie, MS 

Wetland Scientist 

Oregon Department ofTranspotiation 

Bend, OR 

Joan Daniels, MBA 

Emeritus Scientist 

US Geological Survey 

Department of Interior 

Lakewood, CO 

Jennifer DeBruyn, PhD 

Associate Professor 

Department ofBiosystems Engineering & Soil 

Science 

University of Tennessee 

Knoxville, TN 

Kimberly Degutis, PWS, CESCL 

Natural Resources Project Manager 

PBS Engineering and Environmental, Inc. 

Portland, OR 

Jeanne DiFranco, PWS 

Aquatic Biologist 

Portland, ME 

Walter Dodds, PhD 

University Distinguished Professor 

Division of Biology 

Kansas State University 

Manhattan, KS 

Joseph DosSantos, MS 

Emeritus 

American Fisheries Society 

American Institute of Fisheries Research 

Biologists 

Noxon, MT 

Becka Downard, PhD 

Environmental Scientist 

Division of Water Quality 

Utah Department of Environmental Quality 

Salt Lake City, UT 

Nathaniel Dulin 

Wetland Scientist and Biologist 

SWCA Environmental Consultants 

Portland, OR 

William Eakin 

Research Support Specialist II 

Department of Natural Resources 

Cornell University 

Ithaca, NY 

Anthony Echelle, PhD 

Professor 

Department of Integrative Biology 

Oklahoma State University 

Stillwater, OK 

David Edds, PhD 

Professor 

Department of Biological Sciences 

Emporia State University 

Emporia, KS 

Chant Eicke, PWS 

Senior Environmental Scientist 

Earth View Environmental, Inc. 

Coralville, lA 
129 

Erika Eliason, PhD 

Professor 

Department of Ecology, Evolution and Marine 

Biology 

University of California, Santa Barbara 

Santa Barbara, CA 

Summer Elmore, PWS 

Senior Environmental Scientist 

Indianapolis, IN 

Bryan Emerson, PWS 

Associate 

Stantec, Inc. 

North Yarmouth, ME 

Sally Entrekin, PhD 

Professor 

Biology Department 

University of Central Arkansas 

Conway,AR 

Christine Everett, MS 

Manager (Retired) 

Fairbanks Regulatory Field Office 

US Army Corps of Engineers 

Fairbanks, AK 

Derek Faust, PhD 

Research Biologist 

Agricultural Research Service 

US Department of Agriculture 

Mandan, ND 

Kevin Fisher, PWS 

Director 

Horizon Water and Environment 

Oakland, CA 

Virginia Flynn, MS 

Senior Environmental Scientist 

Kaskaskia Engineering Group, LLC 

Belleville, IL 

Ann Folli, MS, PWS 

Project Manager 

Hillsborough, NJ 

Johanna Freeman, PhD 

Biological Scientist 

Fish and Wildlife Research Institute 

Ecosystem Assessment and Restoration 

Florida Fish and Wildlife Conservation 

Commission 

Gainesville, FL 

Roger Freeman, MS 

Retired 

Ithaca, NY 

J. Brock Freyer, MS 

District Wetland Ecologist 

Vermont Department of Environmental 

Conservation 

Roxbury, VT 

Peter Fricke, PhD 

Senior Associate 

Ocean Associates, Inc. 

Hendersonville, NC 

Stephen Fried, PhD 

Fishery Scientist (Retired) 

Stratham, NH 

John Galbrait, PhD, CPSS 

Associate Professor 

Crop & Soil Environmental Sciences 

Virginia Polytechnic Institute and State 

University 

Blacksburg, VA 

Glenn Gebler, PhD 

Professor 

Department of Biology 

Prince George's Community College 

Largo, MD 

Emily Genuardi, MS 

Environmental Scientist 

Wetlands Department 

AECOM 

Conshohocken, PA 

Stephen Glaholt 

Professor 

School of Public and Environmental Affairs 

Indiana University 

Bloomington, IN 
130 

Michael Gooseff, PhD 

Associate Professor 

Institute of Arctic and Alpine Research 

University of Colorado 

Boulder, CO 

William L. Graf, PhD 

University Foundation Distinguished Professor 

Emeritus 

Department of Geography 

University of South Carolina 

Columbia, SC 

Suzanne Gray, PhD 

Associate Professor 

School of Environment and Natural Resources 

The Ohio State University 

Columbus, OH 

Ethan Green, MS 

Fish Habitat Biologist 

Kennewick, W A 

Chris Griffith 

Fish Biologist 

Idaho Fish and Wildlife Conservation Office 

US Fish & Wildlife Service 

Lewiston, ID 

Nancy Grimm, PhD 

Professor 

School of Life Sciences 

Arizona State University 

Tempe, AZ 

James Groton, PWS 

President 

Tennessee Citizens for Wilderness Planning 

Oak Ridge, TN 

Craig Gump, MNS 

Senior Ecologist 

Terra Technologies, Inc. 

Overland Park, KS 

Grant Gurnee, PWS 

Owner & Manager 

Ecosystem Services, LLC 

Longmont, CO 

Ryan Hale, PWS 

Conservation Agent 

Planning and Conservation 

Town of Wilmington 

North Andover, MA 

James Hall, PhD 

Professor Emeritus of Fisheries 

Department of Fisheries and Wildlife 

Oregon State University 

Corvallis, OR 

Betsy Hall 

Microbiologist 

Tribal Fish Health Lab 

Northwest Indian Fisheries Commission 

Olympia, WA 

Paul Hamidi, MS 

Senior Wetland Scientist 

Seattle, WA 

Edd Hammill, PhD, MS 

Assistant Professor 

Department of Watershed Sciences 

Utah State University 

Logan, UT 

Vivienne Handy, PWS 

Principal Ecologist 

Quest Ecology, Inc. 

Wimauma, FL 

Linda Hansen, MS, PE, PWS 

State Floodplain Engineer & Wetland Scientist 

Water Resources Division 

Michigan Department of Environmental Quality 

Marquette, Ml 

Raynie Harlan, MS 

CRS Supervisor 

Louisiana Coastal Protection and Restoration 

Authority 

Baton Rouge, LA 

William Hauser, PhD 

Regional Supervisor (Retired) 

Department ofFish and Game 

State of Alaska 

Anchorage, AK 
131 

Charles Hawkins, PhD 

Professor 

Department of Watershed Sciences 

Utah State University 

Logan, UT 

David Heller, MS 

Regional Fisheries Habitat Program Leader 

(Retired) 

Pacific NW Region 

US Forest Service 

Portland, OR 

Max Henschen, MS 

Retired 

Indianapolis, IN 

Erica Hernandez, MS 

Ecologist Staff Scientist 

Gainesville, FL 

Timothy Hoellein, PhD 

Associate Professor 

Department of Biology 

Loyola University Chicago 

Chicago, IL 

Lisa Hollingswoth-Segedy, AICP 

Director 

River Restoration 

American Rivers 

Pittsburgh, P A 

Jack Holt, PhD 

Professor of Biology 

Biology Department 

Susquehanna University 

Selinsgrove, PA 

Stephen Hope 

Biological Oceanographer 

Water Projects Department 

CH2M 

Revere, MA 

George Host, PhD 

Research Director 

Forest and Land Initiative 

Natural Resources Research Institute 

University of Minnesota, Duluth 

Duluth, MN 

Erin Hotchkiss, PhD 

Assistant Professor 

Biological Sciences Department 

Virginia Polytechnic Institute and State 

University 

13lacksburg, VA 

Jason Houck, MS, PWS 

Ecological Services Manager 

Inwood Consulting Engineers, Inc. 

Oviedo, FL 

CliffHupp, PhD 

Scientist Emeritus (Retired) 

US Geological Survey 

Reston, VA 

Palma Ingles, PhD 

Retired 

US Fish & Wildlife 

Anchorage, AK 

Holly Jennings, MS 

Fisheries Biologist 

US F ores! Service 

Ironwood, Ml 

Frank Jernejcic, MS 

Vice President 

Upper Monongahela River Association 

Morgantown, WV 

Lucinda 1 ohnson, PhD 

Associate Institute Director 

Natural Resources Research Institute 

University of Minnesota 

Duluth, MN 

Carol Johnston, PhD 

Professor 

Department of Natural Resource Management 

South Dakota State University 

Brookings, SD 

Jeffrey Jolley, PhD 

Research Fish Biologist 

US Geological Survey 

AL 
132 

Robert Jontos, MS 

Retired 

Summerville, SC 

David Kaplan, PhD 

Director 

Howard T. Odum Center for Wetlands 

University of Florida 

Gainesville, FL 

Lawrence Keenan, PhD 

Director of Research and Development 

Environmental Research Group 

Keystone Heights, FL 

John Kelly, PhD 

Professor 

Department of Biology 

Loyola University Chicago 

Chicago, IL 

Janet Keough, PhD 

Associate Director (Retired) 

MidContinent Ecology Division 

US Environmental Protection Agency 

Duluth, MN 

Jeffrey Klausmann, MS 

Restoration Ecologist and Owner 

Intermountain Aquatics, Inc. 

Driggs, ID 

Rebecca Knivcton, PWS 

Senior Biologist 

Seattle, WA 

Jaan Kolts, MS 

Wildlife Biologist 

Rocky Mountain Research Station 

US Forest Service 

Boise, ID 

John Kominoski, PhD 

Assistant Professor 

Ecosystems Ecology 

Florida International University 

Miami, FL 

Peter Konstantinidis, PhD 

Curator of Vertebrates 

Oregon State University 

Corvallis, OR 

Katya Kovalenko, PhD 

Research Scientist 

University of Minnesota Duluth 

Duluth,MN 

Stefanie Kroll, PhD 

Assistant Research Professor 

Biodiversity, Earth and Environmental Science 

Department 

Academy of Natural Sciences of Drexel 

University 

Philadelphia, PA 

Alec Lambert 

Environmental Scientist 

PG Environmental 

Golden, CO 

James Lam perth, MS 

Fish Biologist 

Washington Department ofFish and Wildlife 

State of Washington 

Olympia, WA 

Steve Lanigan, MS 

Aquatic Riparian Effectiveness Monitoring 

Program (Retired) 

US Forest Service 

Portland, OR 

Dina Leech, PhD 

Associate Professor 

Biological and Environmental Sciences 

Department 

Longwood University 

Farmville, VA 

Joanna Lemly, MS 

Wetland Ecologist 

Colorado Natural Heritage Program 

Fort Collins, CO 
133 

Kris Lepine, PWS 

Associate Ecologist 

Restoration Group 

Herrera Environmental Consultants 

Seattle, WA 

Dendy Lofton, PhD 

Limnologist 

LimnoTech 

Minneapolis, MN 

Paul Looney, MS 

Senior Scientist 

Pensacola, FL 

Scott Luchessa, MS 

Certified Ecologist 

Ecological Solutions, Inc. 

Seattle, WA 

James G. Macbroom, PE 

Senior Vice President 

Milone and MacBroom 

Cheshire, CT 

Amy Marcarelli, PhD 

Associate Professor 

Department of Biological Sciences 

Michigan Technological University 

Houghton, Ml 

Michael Marcus, PhD 

Retired 

Albuquerque, NM 

Terry Maret, MS 

Research Biologist (Retired) 

Water Resources Division 

US Geological Survey 

Boise, ID 

Robert Martin, Certified Wildlife Biologist 

Retired 

Regulatory Branch 

US Army Corps of Engineers 

Seattle, WA 

Kelsey Martin-Harbick 

Marine Biologist 

Wild Side Specialty Tours 

Kapolei, HI 

Niall McCarten, PhD 

Director 

Institute for Ecohydrology Research 

Woodland, CA 

Kim McDonald, PhD 

Principal 

Shelterwood Consulting 

Seattle, WA 

Katherine McMahon, PhD 

Professor 

Civil and Environmental Engineering 

Department 

University of Wisconsin Madison 

Madison, WI 

Harrison McNeil, MS 

Biologist 

Corpus Christi, TX 

Bruce Miller, PhD 

Professor Emeritus 

School of Aquatic and Fishery Sciences 

University of Washington 

Redmond, WA 

Stanley Moberly 

Past President (1987-1 988) 

American Fisheries Society 

Tenakee Springs, AK 

David R. Montgomery, PhD 

Professor 

Department of Earth and Space Sciences 

University of Washington 

Seattle, WA 

Cheryl Moody, PWS 

Executive Director 

Selkirk Conservation Alliance 

Priest River, ID 

Vicki Mooney, PWS 

Environmental Consultant 

VM Environmental Consulting 

Georgetown, TX 
134 

Patrick Moran, MS 

Scientist 

US Geological Survey 

Department of Interior 

Tacoma, WA 

Jennie Morgan, PhD 

Stormwater Program Manager 

Rogue Valley Sewer Services 

Central Point, OR 

Clinton Morgeson, MS 

Fisheries Biologist 

Fayetteville, NC 

Jennifer Morse, PhD 

Assistant Professor 

Environmental Science and Management 

Department 

Portland State University 

Portland, OR 

Jeffrey Mount, PhD 

Professor Emeritus 

Department of Earth and Planetary Sciences 

University of California, Davis 

Davis, CA 

Barbara Muhling, PhD 

Project Scientist 

University of California, Santa Cruz 

San Diego, CA 

Julia Munger 

Wetland Scientist 

Society of Wetland Scientists 

Seattle, WA 

Michael Muscari, PWS 

Senior Wetlands Ecologist 

Environmental Science Associates 

Seattle, WA 

Jenny Nehring, MS 

Biologist 

Wetland Dynamics, LLC 

Monte Vista, CO 

Jay Nelson, PhD 

Professor 

Department of Biological Sciences 

Towson University 

Towson, MD 

Katelin Nickerson 

Professional Wetland Scientist 

Professional Consultant 

Tetra Tech 

Portland, ME 

Jonathan Niles, PhD 

Director 

Freshwater Research Initiative 

Susquehanna University 

Selinsgrove, PA 

Sarah Null, PhD 

Associate Professor 

Department of Watershed Sciences 

Utah State University 

Logan, UT 

Jenna Odegard, MS 

Scientist 

Wetland and Ecological Consulting 

MAD Scientist Associates 

Westerville, OH 

Julian Olden, PhD 

Professor 

School of Aquatic and Fishery Sciences 

University of Washington 

Seattle, WA 

Isabella Oleksy, MS 

Aquatic Ecologist 

Ecosystem Science and Sustainability 

Colorado State University 

Fort Collins, CO 

Andrew O'Malley, MS 

Biologist 

Orono, ME 

Katherine Osborn, MS 

Fisheries Biologist 

McKinleyville, CA 
135 

Frank P, MS 

Fisheries Research Biologist (Retired) 

Alaska Fisheries Science Center 

NOAA 

US Department of Commerce 

Juneau, AK 

Margaret A. Palmer, PhD 

Distinguished University Professor 

University of Maryland 

College Park, MD 

Erin Pande 

Director 

Ecological Services 

Engineering Resource Associates, Inc. 

Warrenville, IL 

Frank Panek, PhD 

Owner and Manager 

Fishery and Aquatic Health Associates, LLC 

Warrenville, IL 

Richard Peel, PWS 

Professional Wetland Scientist 

Soundview Consultants, LLC 

Gig Harbor, W A 

Rebecca Pierce 

Program Manager 

Colorado Department of Transportation 

State of Colorado 

Denver, CO 

N. LeRoy Poff, PhD 

Professor 

Department of Biology 

Colorado State University 

Fort Collins, CO 

Kimberli Ponzio, MS, PWS 

President 2015-2016 

Society of Wetland Scientists 

Gainesville, FL 

Michael Porter, PhD 

Fishery Biologist 

US Army Corps of Engineers 

Albuquerque, NM 

Sandra L. Postel 

Director 

Global Water Policy Project 

Los Lunas, NM 

Robert M. Roseen, PhD, PE, D. WRE 

Principal 

W aterstone Engineering 

Stratham, NH 

Chris Powell, MS 

Adjunct Professor 

Marine Science Department 

Roger Williams University 

Bristol, Rl 

Nicholas Powers, PhD 

Consultant 

Washington, DC 

Rachel Puttmann, MS 

Biologist 

Bristol Environmental 

co 

Mark Pyron, PhD 

Professor 

Biology Department 

Ball State University 

Muncie, IN 

Philip Quarterman, MS, PWS 

Senior Wetland Scientist 

WHPacific, Inc. 

Portland, OR 

Patrick Rakes, MS 

Director 

Conservation Fisheries, Inc. 

Knoxville, TN 

Chet Rakocinski, PhD 

Professor 

University of Southern Mississippi 

Ocean Springs, MS 

Matthew Ramsay, MS 

Professional Ecologist 

Capitola, CA 
136 

Brian Remlinger, PWS 

Wetland and Water Scientist 

Alder Environmental LLC 

Jackson, WY 

Christina Remucal, PhD 

Assistant Professor 

Civil and Environmental Engineering 

University of Wisconsin-Madison 

Madison, WI 

Carl Richards, PhD 

Director (Retired) 

Office of Research and Development 

US Environmental Protection Agency 

Green Cove Springs, FL 

David Richardson, PhD 

Associate Professor 

Biology Department 

State University of New York at New Paltz 

New Paltz, NY 

Stephen Richter, PhD 

Professor 

Department of Biology 

Eastern Kentucky University 

Richmond, KY 

Amy Rosemond, PhD 

Professor 

Odum School of Ecology 

University of Georgia 

Athens, GA 

Stephen Ross, PhD 

Acting Curator of Fishes Museum of 

Southwestern Biology & Adjunct Professor of 

Biology 

Museum of Southwestern Biology 

University of New Mexico 

Albuquerque, NM 

Claire Ruffing, PhD 

Post-Doctoral Research Associate 

Institute of Arctic Biology 

University of Alaska, Fairbanks 

Fairbanks, AK 

Deborah Rutecki 

Senior Scientist 

Normandeau Associates, Inc. 

Falmouth, MA 

Ruth Schaefer, MS 

Senior Ecologist (Retired) 

Water and Land Resources Division 

King County Department of Natural Resources 

Seattle, WA 

John C. Schmidt, PhD 

Professor 

Department of Watershed Sciences 

Quinney College ofNatural Resources 

Utah State University 

Logan, UT 

Tiffany Schriever, PhD 

Professor 

Department of Biological Sciences 

Western Michigan University 

Kalamazoo, Ml 

Eric Schultz, PhD 

Professor 

Department of Ecology and Evolutionary 

Biology 

University of Connecticut 

Storrs, CT 

Rachel Schultz, PhD 

Lecturer 

University of Wisconsin-Stevens Point 

Stevens Point, WI 

Matt Schweisberg, PWS 

Manager (Retired) 

New England Region Wetland Protection 

Program 

US Environmental Protection Agency 

Boston, MA 

Robert Shannon, PhD, PWS 

Professor 

Environmental Resource Management 

Department 

Pennsylvania State University 

University Park, PA 
137 

Michael Sheehan, MS 

Senior Wetland and Soil Scientist 

Society of Soil Scientists of Southern New 

England 

Moosup, CT 

Deborah Sills, PhD 

Assistant Professor 

Civil and Environmental Engineering 

Department 

Bucknell University, 

Lewisburg, PA 

Don Silverberg, MS PWS 

Assistant Environmental Manager 

Florida Environmental Services 

GAl Consultants 

Orlando, FL 

Thomas Slowinski, MA, PWS 

Wetlands & Ecology Technical Director 

V3 Companies 

Woodridge, IL 

Sigrid Smith, PhD 

Assistant Professor 

Department of Agriculture and Natural 

Resources 

Delaware State University 

Dover, DE 

James Stahl, MS 

Aquatic Biologist and Ecotoxicologist 

Office of Water Quality Watershed Assessment 

and Planning Branch 

Indiana Department of Environmental 

Management 

Indianapolis, IN 

Reid Stamer, PWS 

Restoration Ecologist 

Earth View Environmental 

Coralville, lA 

Richard Standage, CFP 

Biologist and Fisheries Program Manager 

(Retired) 

Integrated Resources Fisheries 

Ouachita National Forest 

US F ores! Service 

Hot Springs, AR 

Shane Staten, MEM, PWS 

Senior Wetland Ecologist 

Wetland and Stream Mitigation Banking 

Terra Technologies 

St. Louis, MO 

TJ Stetz, MS 

Ecologist (Retired) 

Regulatory Program 

US Army Corps of Engineers 

Seattle, WA 

Quentin Stober, PhD 

Fishery Scientist (Retired) 

Science and Ecosystem Support Division 

Region IV 

US Environmental Protection Agency 

Carrollton, GA 

Kevin Stockton, BS 

Environmental Scientist 

PG Environmental 

Golden, CO 

Hannah Stout, PhD 

Freelance Entomologist and Certified 

Taxonomist 

Green Drake Restoration Project 

State College, PA 

Jane Sullivan, MS 

NMFS I Alaska Sea Grant Fellow 

Sustainable Fisheries Division 

NOAA Alaska Region 

Juneau, AK 

Mazeika Sullivan, PhD 

Associate Professor and Director 

School of Environment and Natural Resources 

and Shiermeier Oletangy River Wetland 

Research Park 

The Ohio State University 

Columbus, OH 

Christopher Swan, PhD 

Professor 

Department of Geography and Environmental 

Systems 

University of Maryland, Baltimore County 

Baltimore, MD 
138 

Chris Taylor, PhD 

Professor 

Biology Department 

University of Texas Rio Grande Valley 

Edinburg, TX 

Kenneth Teague, PWS 

Independent Coastal and Wetlands Scientist 

(Retired) 

Glen Flora, TX 

David Teesdale, MS 

Senior Wetland Ecologist 

Talasaea Consultants, Inc. 

Woodinville, WA 

Steven Thomas, PhD 

Associate Professor 

School of Natural Resources 

University of Nebraska 

Lincoln, NE 

Jessie Thomas-Blate, MS 

Associate Director 

River Restoration 

American Rivers 

Washington, DC 

Kevin Thompson, PhD 

Research Scientist 

Florida Fish and Wildlife Conservation 

Commission 

St. Petersburg, FL 

Russell Thurow, MS 

Fisheries Research Scientist 

Rocky Mountain Research Station 

Boise.ID 

Thomas Touchet, MS, PWS 

Senior Wetland Scientist 

AECOM 

Chelmsford, MA 

Kate Traut, PWS 

Environmental Scientist 

Baltimore, MD 

Tiffany Trent, MS 

Environmental Scientist 

Water Resources 

St. John's Ricer WMD 

Palatka, FL 

Chelsea Tuohy, PhD 

Founder 

Isla Mar Research Expeditions 

Rincon, PR 

R. Eugene Turner, PhD 

Professor 

Oceanography and Coastal Sciences Department 

Louisiana State University 

Baton Rouge, LA 

Dirk Vanderklein, PhD 

Professor 

Biology Department 

Montclair State University 

Montclair, NJ 

Kevin Verweire, MS 

Senior Environmental Scientist 

Walton, NY 

Jenneke Visser, PhD 

Professor 

School of Goesciences 

University of Louisiana at Lafayette 

Lafayette, LA 

Thomas Wainwright, PhD 

Research Fishery Biologist (Retired) 

Bend, OR 

James Wakeley, PhD 

Research Wildlife Biologist (Retired) 

US Army Engineer Research and Development 

Center 

Dolores, CO 

John Wallace, PhD 

Professor and Director 

Biology and Center for Environmental Sciences 

Millersville University 

Millersville, PA 
139 

Elly Weber, MS 

Biologist 

Pinyon Environmental, Inc. 

Littleton, CO 

Theodore Weber, MS 

Conservation Science Manager 

The Conservation Fund 

Annapolis, MD 

Jeff Wesner, PhD 

Assistant Professor 

Biology Department 

University of South Dakota 

Vermillion, SD 

Joseph Wheaton, PhD 

Associate Professor 

Department of Watershed Sciences 

Utah State lJ niversity 

Logan, UT 

Joanna Whittier, PhD 

Assistant Research Professor 

School of Natural Resources 

University of Missouri 

Columbia, MO 

So lange Williams, PhD 

Research Associate Professor 

Chesapeake Biological Laboratory 

University of Maryland Center for 

Environmental Science 

Solomons, MD 

Lance Williams, PhD 

Professor and Director 

Department of Biology 

The University of Texas at Tyler 

Tyler, TX 

Marsha Williams, MS 

Research Associate 

Department of Biology 

The University of Texas at Tyler 

Tyler, TX 

Ellen Wohl, PhD 

University Distinguished Professor 

Geosciences Department 

Colorado State University 

Fort Collins, CO 

Jennifer Wollenberg, PhD 

Associate 

The ELM Group 

Chalfont, PA 

Wilfred Wollheim, PhD 

Associate Professor 

Department of Natural Resources and 

Environment 

University of New Hampshire 

Durham, NH 

Kirsten Work, PhD 

Professor 

Biology Department 

Stetson University 

DeLand, FL 

Sarah Yarnell, PhD 

Researcher 

University of California, Davis 

Davis, CA 

Stephanie Yarwood, PhD 

Professor 

Environmental Science and Technology 

University of Maryland 

College Park, MD 

Kendra Zamzow, PhD 

Staff Scientist 

Chickaloon, AK 

Koreen Zelasko, MS 

Research Associate 

Larval Fish Laboratory 

Fort Collins, CO 

FrankZomer 

Biologist 

Inland Fish and Wildlife 

Bay Mills Indian Community 

Brimley, MI 
140 

LETTER SUBMITTED BY REPRESENTATIVE PAUL TONKO

September 26, 2017 

The Honorable Scott Pruitt 

Administrator 

U.S. Environmental Protection Agency 

Office of Policy Regulatory Reform 

Mail Code 1803A 

1200 Pennsylvania Ave NW 

Washington, DC 20460 

The Honorable Douglas W. Lamont 

Senior Official Performing the Duties of the 

Assistant Secretary of the Army for Civil Works 

0 ffice of the Assistant Secretary of the Army for 

Civil Works 

Department of the Army 

1 04 Army Pentagon 

Washington, DC 20310-0104 

Re: Docket 1D No. EPA-HQ-OW-2017-0203; FRL-9962-34-0W; Definition of"Waters of the United 

States"- Recodification of Pre-existing Rules 

Dear Administrator Pruitt and Deputy Assistant Secretary Lamont: 

These comments are submitted regarding the proposed rule, Definition of"Waters of the United States"-

Recodification of Pre-existing Rules, EPA-HQ-OW-2017-0203; FRL-9962-34-0W, published in the 

Federal Register on July 27, 2017. On behalf of the approximately 3,000+ members of the Society for 

Wetland Scientists (SWS). Our society strongly opposes the proposed rule to rescind the definition of 

"Waters of the United States" (WOTUS) as promulgated by the Agencies in 2015 (Clean Water Rule: 

Definition of Waters of the United States; 80 FR 37054, June 29, 2015) (2015 CWR). 

The Society of Wetland Scientists (SWS) is an international scientific organization whose members study, 

manage, and restore wetlands. We are a science-based and non-profit organization. Our members have 

numerous areas of expertise in the ecological, chemical, geological and biological sciences, and they 

work in the private sector, academia, and tribal, state and federal agencies. SWS holds multiple scientific 

meetings each year focused on wetlands throughout the world and publishes the most important, peerreviewed journal dealing with wetlands (Wetlands) in the world. 

Wetlands have many significant attributes important to the national economy and citizen well-being. 

Wetlands play a disproportionately significant role in protecting our nation's waters by retaining, 

degrading. or transforming contaminants from urban, mining, timber harvesting and agricultural runoff 

that would otherwise pollute downstream areas in a watershed. Bottomland hardwood forests, swamps, 

and pocosin wetlands can provide flood protection for communities by absorbing stormwater runoff, 

which slows the rate of rising floodwaters and may save human lives and property. Many forested 

wetlands retain floodwaters that recharge aquifers and export nutrients that fertilize poorer soils in drier 

upland areas. Wetlands can serve as retention basins of precipitation that recharge aquifers, including the 
141 

Ogallala Aquifer, which is a major source of groundwater for agricultural operations and drinking water 

for municipalities in the Great Plains and southern High Plains. Prairie potholes and playa lake wetlands 

provide nesting and wintering habitat for dozens of species and millions of migratory birds on the North 

American continent, which generates millions of dollars in waterfowl hunting and bird watching 

revenues. Wetlands provide vital habitat for thousands of species, including federally listed endangered 

plant and animal species. 

Coastal wetlands directly provide nursery habitat for commercially important fish, crab, shrimp, and 

oysters that sustain the billion dollar U.S. seafood industry and thousands of American jobs. As the 

bumper sticker says: "no wetlands, no shrimp". These wetlands can mitigate disaster costs by reducing 

the storm surge of tropical cyclones. Lovelace (1994), for example, documented a l m decrease in stonn 

surge per 23 km over fairly continuous marsh during the second landfall of Hurricane Andrew. Similarly, 

a 2016 study (Narayan et al. 2016) found that coastal wetlands prevented $625 million in property 

damages during Hurricane Sandy, and that coastal wetlands reduced annual property damages in Ocean 

County, New Jersey by nearly 20%. 

The proposed repeal of the 2015 Clean Water Rule is unsupported by the peer-reviewed science and 

critical analysis that supported the 2015 Clean Water Rule. The proposed repeal has not been subjected to 

rigorous independent peer review, it has not undergone a robust public comment process, and it poses a 

significant threat to the integrity and security of our drinking water, public health, fisheries, and wildlife 

habitat- while significantly increasing the risks and costs associated with flood and stonn damage. We 

submit the following comments for your consideration. 

Comment #1: The Agencies should provide a body of peer-reviewed publications that has depth, 

breath and accuracy that is comparable to the literature analysis supporting the 2015 CWR. 

The 2015 CWR is supported overwhelmingly by the scientific evidence, documented in the EPA 

Connectivity of Streams and Wetland1 to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence report (US EPA 2013), which underwent external peer review by the EPA Science Advisory 

Board, and incorporates results from over I ,200 peer-reviewed scientific publications. Further support for 

the 2015 CWR is provided by a Brief of the Amici Curiae in Support of Respondents and in Support of 

Upholding the Clean Water Rule (Brief, Amici Curiae 20 17), filed with the U.S. Court of Appeals for the 

Sixth Circuit, as well as numerous peer-reviewed studies (e.g., Golden et al. 20 17), Agency experience 

and U.S. Supreme Court precedent. The Agencies should provide peer-reviewed publications that contain 

robust scientific evidence demonstrating that the repeal of the 2015 CWR is desirable and will not 

exacerbate ongoing problems. 

Here we discuss one watershed as an example of many- the Mississippi River basin -the largest in the 

US. This documentation should address how rescinding the 2015 CWA will avoid leading to financial 

losses resulting from deterioration of the associated wetland services of the Mississippi River watershed, 

as defined by the 2015 CWR. 

The Mississippi River watershed drains 41 percent of the contiguous United States and includes waters 

from several major river systems, including the Missouri/Platte River Basin, the Ohio/Tennessee River 

Basin, and the Arkansas/Red/White River Basin. Interspersed among the headwater streams in these 

basins are thousands of hectares of isolated wetlands that retain floodwaters, recharge aquifers, provide 

wildlife habitat, and ameliorate drought conditions. The repeal of the 2015 CWR will remove protections 

for these wetlands and provide 'perverse incemives· for husiness, real estate, and agricultural interests, 

which will continue the practice of unequal costs and benefits between private and public entities. For 

instance, the price of agricultural products or real estate developments that are generated from wetland 

destruction do not reflect the full environmental costs of non point pollution, lost wetland ecosystem 

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142 

services, natural resource damage, and lost socioeconomic and ecological opportunity costs of 

communities downstream. Opportunity costs are the financial resources that are diverted to repair 

environmental damage, community infrastructure, and care for ailing residents as a result of pollution 

from upstream agricultural and commercial activity. (See Florida's ordeal with harmful algal blooms: 

https://dcpncwsroom.wordpress.comh!lgal-bloom-monitoring-and-rcsponse/). 

Nutrient, herbicide, and pesticide loads (as well as other contaminants) emanate from agricultural, urban, 

and suburban areas of states that have sustained serious wetland losses; some states have even lost over 

75% of their wetlands (Association of State Wetland Managers 2015). These toxicants are transported 

downstream and damage aquatic ecosystems largely because wetlands have been lost from the watershed. 

Southern Louisiana, in particular, is still struggling to recover from Hun·icane Katrina, the Deepwater 

Horizon disaster, the Flood of2016, and Hurricane Harvey. Eighteen percent of the US petrochemical 

refining capacity, strategic oil reserves and 1.9 billion dollars of pipelines, are in southern Louisiana 

(httpjf}vww.lmoga.com/illil!!!!tfrSectors/). The port of New Orleans and five other ports therein are vital 

to interstate and international shipping, the nation's economy, and national defense. In this region, two 

wetland examples of restoration efforts aimed at ecological and economic recovery that would be 

undermined by repeal of the 2015 CWA are the Coastal Wetlands Planning Protection and Restoration 

Act (CWPPRA) and the Mississippi River- Gulf of Mexico Watershed Nutrient Task Force. These two 

restoration efforts have already spent billions of taxpayer dollars to combat and resolve these massive 

problems, which potentially could be wasted or significantly reduced in value if the 2015 CWA is 

repealed. 

The repeal of the 2015 CWR will exacerbate and accelerate land loss and Dead Zone catastrophes by 

facilitating the destruction of wetlands and headwater streams in the upper Mississippi River watershed. 

These nutrient loads from upstream are responsible for the formation of the massive hypoxic or 'Dead 

Zone' that forms annually off the Louisiana and Texas coasts. This hypoxic zone kills marine life, 

including commercially valuable species, disrupts marine ecology, and affects the billion dollar Louisiana 

seafood industry. Louisiana has lost 4877 km2 of land from 1932 to 2010, which is a direct threat to the 

industrial, commercial, and residential infrastructure, as well as to millions of American jobs in various 

sectors. The much higher nutrient loads since the 1960s is a driver of wetland loss (Deegan et al. 2012; 

Kearney et al. 20 12). These higher nutrient loads can facilitate the loss of wetland vegetation by 

degrading the root biomass and making plants more susceptible to erosion. The belowground biomass of 

these wetland plants act in a manner similar to reinforcement bars in concrete, and contribute to the 

strength and stability of the soil. Without these plants, the landscape becomes vulnerable to erosion 

caused by large disturbances such as floods and storm surge. 

Comment #2: Reduce uncertainty and unnecessary regulatory oversight. The Agencies should provide 

extensive, substantive and valid documentation to demonstrate how reverting to a case-by-case 

approach leads to greater certainty, consistency, clarity, and stability of regulation. 

The enactment of the 2015 CWR created a regulatory framework with a greater certainty, consistency, 

clarity, and stability of regulation than previous WOTUS definitions and agency guidance documents. 

Reverting to case-by-case "significant nexus" evaluations will add to the financial and permitting burden 

for businesses and communities, and perpetuates unnecessary confusion and inconsistency for an 

unknown period of time. The lack of scientific, peer-reviewed studies to support repeal of the 2015 CWR 

will likely trigger costly and time-consuming court challenges and contribute further to regulatory 

uncertainty, instability, and costs to both private and public sectors. Reverting to previous definitions of 

WOTUS and prior Agency guidance documents will lead to incomplete achievement of the CW A 

mandate, and be accompanied by costly and significant negative consequences for American citizens, 

businesses, and communities, as they experience deteriorated water quality, more limited water supplies, 

3 
143 

more severe flood and storm damage to properties and infrastructure, reduced fisheries, reduced 

recreational activities supporting American businesses, and degraded ecosystem and wildlife habitat 

conditions, etc. Compensating for these ecosystem service losses will incur significant additional financial 

losses. 

Comment #3: The Agencies should provide a complete economic analysis that includes economic 

benefits associated with wetlands protected by the 2015 CWR, as well as the costs and lost revenues 

associated with rescinding the 2015 CWR. A revised economic analysis should be supported by 

peer-reviewed publications, and shouhl provide peer-reviewed publications to support any removal 

of economic benefits or additions of economic costs associated with rescinding the 2015 CWR. This 

economic analysis should be subject to a robust and consequential peer review and public comment 

process. 

The proposed rule to rescind is dependent upon, and largely justified by, a highly flawed, incomplete, and 

weak economic analysis (see: https:l/www.epa.gov/sites/Qrod_uction/tlles/20 17-

06/documents/economic analvsis proposed step l rule.pdO. The Federal Agencies that drafted this 

rescission rely on an economic analysis conducted for the 2015 CWR, but with one major change-the 

Agencies removed the estimated $313 to $513 million in annual benefits that resulted from wetland 

protection under the 2015 CWR, and they failed to provide other means to estimate the economic value of 

wetlands protected by the 20 15 CWR. 

They justify this removal of benefits, in part, by stating that, "public attitudes towards nature protection 

could have changed" (paragraph 4 page 8 & 9, https://www.epa.gov/sites/production/files/2017-

06/documents/economic analysis proposed step l rule. pdf) over time, but provide no documentation to 

support this assertion. According to survey results (among others, see 

http://www. trcp. org/2 0 J 7/06/2 8/ new-national-poll-shows-hunter -angler-support -conservation-crossesparty-lines!), Americans place greater value on clean water than on any other environmental factor, and 

increasingly value wetlands (Costanza eta!. 2014). Further, the Agencies make the specious argument 

that they were unable to find updated studies of"willingness to pay" wetlands valuation studies, such as 

those that were part of the 2015 CWR economic analysis. Several contingent valuation studies were 

conducted between 2005 and 2014 (including Whitehead eta! (2005), Whitehead et al (2009), Awondo et 

a! (2011) and Petrolia eta! (2014)). In addition, according to John Loomis, Colorado State University 

proJessor, and author of"Statistical Efficiency of Double-Bounded Dichotomous Choice Contingent 

Valuation", which includes over 1,000 citations and received the Publication of Enduring Quality Award 

from the Agricultural and Applied Economics Association; there have been no major changes to the 

scientifically accepted methods for valuing clean water since the studies that support the 2015 CWR, and 

his semina! 1991 work continues to be used today (personal communication, 8/l 0/20 17). OMB and 

USACE continue to utilize the "willingness to pay'' approach, as do others. Two meta-analyses conducted 

by Brander ct al. (20 13) and Ghermandi et al. (2008) continue to support the conclusions of the studies in 

support of the 2015 CWR. 

Further, many additional studies documenting the economic value of wetlands, as measured in a variety 

of ways, have been produced recently, and are included in the list of economic valuation studies(see 

reference list #2). The references appended to this letter include "willingness to pay" studies, as well as 

other methods for assessing the economic value of wetland ecosystem services. It should be further noted 

that each of the references appended to this letter includes additional citations of work related to the topic 

of the article. 

The Agencies' economic cost-benefit analyses should include estimates of the costs to property owners, 

communities, governments, taxpayers, and health care insurers associated with replacing the ecosystem 

services provided by wetlands and headwater streams that would be unprotected with the repeal of the 

4 
144 

2015 CWR. These costs include those for: l) construction and operation of additional water quality 

treatment, water storage, and flood control facilities and infrastructure, 2) increased health care costs, and 

increased reconstruction and repair costs associated with higher levels of flood and storm damage to 

properties, roads, and other infrastructure, and 3) insurance. Additionally, there would be a loss of 

revenues to private businesses, including many rural small businesses that benefit from fishing, hunting, 

boating, and other recreation industries that are dependent upon clean and plentiful waters and the 

wetlands that sustain them. 

Comment #4: The Agencies should provide broadly-based, peer-reviewed, accurate and substantive 

documentation of the commitment of state agencies to take on wetland protection that would be lost 

if the 2015 CWR is rescinded. This documentation should be subject to a robust peer review and 

public comment process. 

The reduction of federal financial support must also be considered when evaluating the capability of state 

programs to evaluate wetland permitting. The Agencies assert that rescinding the 2015 CWR is justified 

because states will protect wetlands through state wetland protection programs. States have had the option 

to assume responsibility for the Section 404 permit program since the Clean Water Act (CWA) passed in 

1972, yet only two states have chosen to do so. An additional21 states have some type of dredge-and-fill 

permit program, many of which rely on federal grant funding and collaboration (Association of Wetland 

Managers 20 15). Furthermore, over two dozen states currently have budget deficits in 2017. These states 

and others face fiscal challenges such as health care, unfunded retirement obligations, and a backlog of 

repairs tor aging infrastructure which makes taking on more wetland-related management issues 

problematic, if not prohibitive. The majority of states rely on the technical and financial support oft he 

federal government in administering wetlands protection policies, and thus are not likely to have the 

capacity or the inclination to take on wetland protection in the absence of federal protection, which would 

lead to loss of the economic, ecological, and public healtl1 and safety benefits. Furthermore, the current 

US Administration has proposed drastic reductions to the EPA budget, which would result in diminished 

federal financial support of state wetland programs. A solely State-by-State regulation of wetlands makes 

the management of some migratory species that much more difficult, if not impossible. 

Comment #5: The current 60-day comment period for the proposed rescinding of the 2015 CWR 

should be extended for another six months, so that our members, and other stakeholders directly 

impacted by the proposed rule to rescind, have sufficient time to submit comments. 

There was a robust public participation to develop the 2015 CWR. The 2015 CWR underwent an 

extensive stakeholder process, involving over 400 meetings with small business owners, farmers, energy 

companies, states, counties, municipalities, other federal agencies, sportsmen, conservation groups and 

environmental organizations, and a public comment period that lasted for over 200 days. Americans 

submitted over 1.1 million comments on the 2015 CWR, and over 90% were in support of the 2015 CWR 

and protection of our nation's wetlands and waters. The broad public support for the 2015 CWR should 

not be overridden by an unduly foreshortened comment period and limited stakeholder process. 

Our nation's wetlands and headwater streams provide a broad suite of direct and indirect ecosystem 

services to society. There are costs associated with replacing those ecosystem services (if they could be 

replaced); there are far-reaching implications tor fish, wildlife, and their habitat from rescinding the 2015 

CWR. We therefore urge the EPA and the Army Corps of Engineers to either withdraw the proposed 

rule to rescind the 2015 CWR and reaffirm the 2015 CWR, or, to develop a revised mle that is as 

scientifically, legally, and ecologically robust as the 2015 CWR, and that is supported by an economic 

analysis that incorporates a valuation of ecosystem services provided by WOTUS as defined in the 2015 

CWR. Only in this way will the concerns and interests of American citizens, businesses, and communities 

be addressed in a responsible manner. 

5 
145 

Arnold van der V alk 

President 

Society of Wetland Scientists 

REFERENCES 

1. Cited References 

Association of State Wetland Managers (2015) Status and Trends Report on State Wetland Programs in 

the United States. http://bit.ly/ZfyOvBC 

Awondo SN, Egan KJ, Dwyer OF (2011) Increasing beach recreation benefits by using wetlands to 

reduce contamination. Marine Resource Economics 26(1):1-15. https://doi.org/1 0.5950/0738-1360-26.1 

Brander L (2013) Economic valuation of regulating services provided by wetlands in agricultural 

landscapes: A meta-analysis. Ecological Engineering 56:89-96. 

http:!/dx.doi.org/1 0.1 016/j.ecoleng.20 12.12.104 

Brief of the Amici Curiae (20 17) filed in support of respondents and in support of upholding the Clean 

Water Rule (2017) filed with the U.S. Court of Appeals for the Sixth Circuit, 

http://w\Vw.stetson.edu/law/international/biodiversity/media/amici curiae brief of wetland and wat 

er%"0 scientists-01-20-17 filed.pdf 

Costanza R, de Groot R, Sutton S, van der Ploeg S, Anderson I, Kubiszewski S, Farber S, Turner RK 

(20 14) Changes in the global value of ecosystem services. Global Environmental Change 26:152-15 8. 

Deegan LA, Johnson OS, Warren RS, Peterson BJ, Fleeger JW, Fagherazzi S, Wollheim WM (2012) 

Coastal eutrophication as a driver of salt marsh loss. Nature 490:388-392. 

Gherrnandi A, van den Bergh JCJM, Brander LM, Nunes PALO (2008) The economic value of wetland 

conservation and creation: A meta-analysis, Nota di lavoro//Fondazione Eni Enrico Mattei: 

Sustainable development 79.2008. http://hdl.handle.net/1 0419/53239 

Golden HE, Creed IF, Ali G, Basu N, NetfBP, Rains MC, McLaughlin 01, Alexander LC, Ameli AA, 

Christensen JR, Evenson GR, Jones CN, Lane CR, Lange M (2017) Integrating geographically 

isolated wetlands into land management decisions. Front. Ecol Environ. 15(6):319-327. doi 

I 0.1 002/fee/1504 

Kearney MS, Riter CA, Turner RE (20 II). Freshwater diversions for marsh restoration in Louisiana: 

Twenty-six years of changing vegetative cover and marsh area. Geophysical Research Letters 38, 

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Lovelace JK ( 1994) Storm-tide elevations produced by Hurricane Andrew along the Louisiana coast, 

August 25-27, 1992. USGS Open-File Report Open-File Report 94-371. 

Narayan, S, Beck, MW, Wilson, P, Thomas, C, Guerrero, A, Shepard, C, Reguero, BG, Franco, G, 

Ingram, CJ, Trespalacios, 0 (2016) Coastal wetlands and flood damage reduction: Using risk 

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Petrolia, OR, lnteris MG, Hwang J (2014) America's Wetland? A national survey of willingness to pay 

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U.S. Environmental Protection Agency (USEPA). (2013) Connectivity of streams and wetlands to 

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2. Additional References on the economic valuation of wetlands 

A wando SN, Egan KJ, Dwyer DF, (2011) Increasing beach recreation benefits by using wetlands to 

reduce contamination. Marine Resource Economics 26( I): 1-15. https://doi.org/1 0.5950/073 8-1360-

26.1.1 

Barbier EB (20 15) Valuing the storm protection service of estuarine and coastal ecosystems. Ecosystem 

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http://www.scienceclirect.com/science/artide/pii/S221204161400068(l"via%3 Dihub 

Barbier EB, Georgiou IY, Enchelmeyer B, Reed DJ (2013) The value of wetlands in protecting southeast 

Louisiana from hurricane storm surges. PLoS ONE 8(3): c58715. Doi:IO.l371/journal.pone.0058715 

BenDor, T, Lester, TW, Livengood, A, Davis A, Yonavjak L (2015) Estimating the size and impact of the 

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literature and its uses in decision-making. Water Resources and Economics 17: 9-19. 

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Brander LM, Florax GM, Vermaat JE (2006) The empirics of wetland valuation: a comprensive 

stummary and a meta-analysis of the literature. Environ. Resour. Econ. 33(2):233-250, Doi: 

10.1007/s 10640-005-3104-4 

Brander L (2013) Economic valuation of regulating services provided by wetlands in agricultural 

landscapes: A meta-analysis. Ecological Engineering 56:89-96. 

http://dx.doi.org/l 0.1 016/j.ecoleng.20 12.12.104 

Costanza R, de Groot R, Sutton S, van der Ploeg S, Anderson I, Kubiszewski S, Farber S, Turner RK 

(2014) Changes in the global value of ecosystem services. Global Environmental Change 26:152-158. 

Emerton L (2016) Economic valuation of wetlands: Total economic value. Springer Science+Business 

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8_301-1 

Ghennandi A, van den Bergh JCJM, Brander LM, Nunes PALD (2008) The economic value of wetland 

conservation and creation: A meta-analysis, Nota di lavoro//Fondazionc Eni Enrico Mattei: 

Sustainable development 79.2008. http://hdl.handle.net/l 0419/53239 

Ghermandi A, van der Bergh JCJM, Brander LM, de Groot HLF, Nunes PALD (2010) Value of natural 

and human-made wetlands: A meta-analysis. Water Resources Research 46: W12516. 

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Hanemann M, Loomis, J, Kanninen B, (1991) Statistical efficiency of double-bounded dichotomous 

choice contingent valuation. American Journal of Agricultural Economics 73(4): 1255-1263. 

Hey DL, Philippi NS (1995) Flood reduction through wetland restoration: The upper Mississippi River 

basin as a case history. Restoration Ecology 3( 1 ):4-17. 

lnteris M, Retrolia DR (20 16) Location, location, habitat: How the value ecosystem services varies across 

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Lalika MCS, Meire P, Ngaga YM, Gaddy JS (2017) Willingness to pay for watershed conservation: Are 

we applying the right paradigm? Ecohydrology & Hydrobiology 17(1):33-45. 

https://doi.orgll 0.10 16/j.ecohvd.20 16.12.004 

Mitsch W J, Bernal B, Hernandez ME (20 15) Ecosystem services of wetlands. International Journal of 

Biodiversity Science, Ecosystem Services & Management 11(1):1-4. 

http://dx.doi.org/l 0.1080/21513 732.2015.1006250 

Mueller JM, (2013) Estimating willingness to pay for watershed restoration in Flagstaff, Arizona using 

dichotomous-choice contingent valuation. Forestry: An International Journal afForest Research 

87(2):327-333. https://doi.oro:/ I 0.1 093/l(lrestrv/cpt035 

Mueller JM, Swaffer W, Nielsen EA, Springer AE, Masek Lopez S (2013) Estimating the value of 

watershed services following forest restoration. Water Resources Research 4(4): 1773-1781. 

doi: 10.1 002/wrer.20 163 

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Murray 13, Jenkins A, Kramer R, Faulkner SP (2009) Valuing ecosystem services from wetlands 

restoration in the Mississippi alluvial valley. The Nichols Institute for Environmental Policy 

Solutions, Duke University. NI R 09-02. 

Petrolia, DR, Intcris MG, Hwang J (2014) America's Wetland? A national survey of willingness to pay 

for restoration of Louisiana's coastal wetlands. Marine Resources Economics 29(1): 17-37. 

http://dx.doi.org/1 0. I 086/676289 

Petrolia DR, Kim T (2009) What are barrier islands worth? Estimates of willingness to pay for 

restoration. Marine Resource Economics 24:131-146. 

Petrolia DR, Kim T (2011) Preventing land loss in coastal Louisiana: Estimates ofWTP and WTA. 

Journal of Environmental Management 92:859-865. Doi.l 0.10 16/jenvman.20 I 0. I 0.040 

Petrolia DR, Moore RG, Kim T (20 II) Preferences for timing of wetland loss Prevention in Louisiana, 

Wetlands 31:295-307. DO! 10.1007/s13157-0ll-0150-2 

Watson, KB, Ricketts, T, Galford, G, Polasky S, O'Niei-Dunne, J (2016) Quantifying flood mitigation 

services: The economic value of Otter Creek wetlands and floodplains to Middlebury, VT. Ecological 

Economics 130:16-24. )H.!g;//dx.doi.org/1 0. l 0 l6/j.ecolecon.20 16.05.0 15. 

Whitehead JC, Groothuis PA (2005) The Economic Values of Saginaw Bay Coastal Marshes. Southwick 

Associates, Inc. Florida. 

Whitehead JC, Groothuis PA, Southwick R, Foster-Turley P (2009) Measuring the economic benefits of 

Saginaw Bay coastal marsh with revealed and stated preference methods. Journal of Great Lakes 

Research 35(3):430-437. https://doi.org/l 0. l 0 l6/j.jglr.2009.03 .005 

Woodward RT, Wui Y (2000) The economic value of wetland services: a meta-analysis. Ecological 

Economics 37:257-270. 

8 
148 

LETTER SUBMITTED BY REPRESENTATIVE ANDY BIGGS

American Road & Transportation 

Builders Association 

:250 E Stt'eet S.W. 

Suite 900 

Washington DC, 20024 

Nov. 28,2017 

p 202.289.4434 

f:. 202.289.4435 

W artba.org 

Re: Docket No. EPA·HQ·OW-2017·0480; Definition of "Waters oftha United States" 

On behalf of the more than 7,500 members of the American Road & Transportation Builders 

Association (ARTBA), I respectfully offer comments on the U.S. Enviromnental Protection 

Agency's (EPA) and U.S. Army Corps of Engineers' (Corps) continuing efforts to revise the 

definition of"Waters of the United States" (WOTUS). 

ARTBA's membership includes private and public sector members that are involved In the planning, 

designing, construction and maintenance of the nation's roadways, waterways, bridges, ports, 

ailpmts, rail and transit systems. Our industry generates more than $380 billion"annually In U.S. 

economic activity and sustains more than 3.3 million American jobs. 

ARTBA's public sector members adopt, approve, or fund transportation plans, programs, or projects. 

ARTBA's private sector members plan, design, construct and provide supplies for these federal 

transportation improvement projects. ARTBA members are directly involved with the federal 

wetlands permitting program and undertake a variety of construction-related activities under the 

Clean Water Act {CWA). ARTBA actively works to combine the complementary interests of 

improving our nation's transportation infi·astrocture with protecting essential water resources. 

One of the main reasons for the success of the CW A is the Act's clear recognition of a partnership 

between the federal and state levels of govenirnent In the area of protecting water resources. The 

lines offederal and state respoDBibility are set forth in Section I Vl(b) of the CWA: 

"It is the policy of Congress to recognize, preserve, and protect the 

primary responsibilities of State.• to prevent, reduce, and elimillate 

pollution, to plan the development and use (including restoration, 

preservation and enhancement) of land and water resources ... •• 

This structure of shared responsibility allows states the essential flexibility they need to protect truly 

ecologically important and environmentally sensitive areas within their borders while, at tbe same 

time, making necessary improvements to their transportation infrastructure. The success of the 

federal-state partnership is backed by dramatic results. Prior to the inception of the CW A, fium tbe 

l950s to the 1970s, an average of 458,000 acres of wetlands were lost each year. Subsequent to the 

CW A's passage, from 1986·1997, the loss rate declined to 58,600 acres per year and between 1998-

2004 overall wetland areas increased at a rate of 32,000 acres per year.1 

ARTBA supports the reasonable protectiqn of enviromnentally sensitive wetlands with policies 

balancing preservation, economic realities and public mobility requirements. Muchoftbe cuuent 

debate over federal jurisdiction, however, involves overly broad and ambiguous definitions of 

Draft 2007 Report on the Environment: Science, USb""P A, May 2007, available at 

http://cfuub.ena.gov/ncealcfm/rccordisplay.cfm?deid-I409l7 
149 

"wetlands."2 This ambiguity is frequently used by anti-growth gro\lps to stop desperately needed 

transportation improvements. For this reason, ARTBA has, and continues to, work towards a 

definition of''wetlands" that would be easily recognizable to both landowners and transportation 

planners aod is consistent with the original scope of the CWA'sjurlsdiction. As an example ofthis, 

official ARTBA policy recommends defming a "wetland" as follows: "If a land area is saturated with 

water at the surface during the normal growing season, has hydric soil and supports aquatic-type 

vegetation, it is a functioning wetland." 

A Revised WOTUS ;Rule Should Not Extend Federal Jurisdi£tjon to Roadsjde Ditches 

ARTBA is particularly concerned with the treatment of roadside ditches under any revisions to the 

WOTUS rule. Current federal regulations say nothing about ditches, but the 2015 WOTUS rule 

expanded EPA and Corps jurisdiction to the point where virtually any ditCh with standing water 

could be covered. Federal environmental regulation should be applied when a clear need is 

demonstrated and regulating all roadside ditches under the theory of interconnectedness fails to meet 

this threshold. A ditch's primary purpose is safety and they only have water present dw·ing aod after 

rainfall. In contrast, trarlitional wetlands are not typically man-made nor do they fulfill a specific 

safety function. As such, roadside ditches are not, and should not be, regulated as traditiooai 

jurisdictional wetlands because the only time they contain water is when they are fulfilling their 

intended purpose. 

The unacceptable fength of the environmental review and approval process for federal-aid highway 

projects has been routinely documented and acknowledged by both Republican and Democrat 

administrations. Adding more layers of review-for unproven benefits-will only lengthen this. 

process. Further, requiring wetland pennits for ditch constmctio:ll and maintenance would force 

project sponsors and the private sector to incur new administrative and legal costs which would lead 

to increased project costs. The potential delays and increased costs that would result from the 

WOTUS rule would divert resourees from timely ditch maintenance activities and potentially 

threaten the role ditches play in promoting roadway safety. 

In addition, the 2015 WOTUS rule created a completely new concept of allowing for "aggregation" 

of the contributions of all similar waters "within an entire watershed." This concept results in a 

blanket jwisdictional determination-meaning the EPA and Corps could regulate the complete 

watershed. Such a broadening of jurisdiction would literally leave no transportation project 

untouched regardless of its location, as there is no area in the United States not linked to at least one 

watershed. While there are certainly instances where a permit is appropriate fur the impacts of 

transportation con&tmction, these situations should be evaluated on a case-by-case basis where 

specific environmental benefits can be evaluated. 

Revisions to the WOTUS Rule Should Not Jeopardize Progress on Project Streamll11ing 

It should a1so be noted that there has been recent bipartisan progress in the area of streamlining 

the project review and approval process for transportation projects. Members of both political 

parties agree that transportation improvements can be built more quickly without sacrificing 

necessary environmental protections. The current surface transportation reauthorization law, the 

"Fixing America's Surface Transportation" (FAST) Act as well as its predecessor, the "Moving 

Many slates define wetlands as well other types ofwaterre.•ources and prescribe regulatory regimes that 

are appropriale to each. The federal government tries a one-size fits all approach essentially requiring water 

reBources viewed by states as not being wetlands to be regulated as if they were wetlands under federal law. 

2 
150 

Ahead for Progtess in the 21'" Century" (MAP-21) Act, both contained significant reforms to the 

project delivery process aimed at reducing delay, 

Under the 2015 W01US rule, the progtess of the project delivery refonns in both MAP-21 and 

the FAST Act would have been jeopardized. Any reduction in delay gained from improvements 

to the project delivery process would likely be negated by the ipcreased permitting requirements 

and opportunities for litigation caused by the 2015 WOTUS rule's expansion offederal ' 

jurisdiction. In revising the WOTUS rule, the EPA and Corps should seek to reduce unnecessary 

l'C!,'lllatory burdens to project delivery. 

EPA and the Corps Should Consider a "De Minimis" Threshold for Regulation Under a 

Revised WOTUS Definition 

One method of establishing clarity would be to develop a classification system for wetlands based on 

their ecological value. Thls would allow increased protection for the most valuable wetlands while 

also creating flexibility for projects impacting wetlands that are considered to have little or no value. 

Also, there should be a "de minimis" level of impacts defined which would not require any 

permitting process to encompass instances where impacts to wetlands are so minor that they do not 

have any ecological effect. A "de-minimis" standard for impacts would be particularly helpful for 

transportation projects and allow projects to avoid being delayed by minimal impacts to areas which 

are not environmentally sensitive. 

Conclusion. 

ARTBA supports the efforts of the EPA and the Corps to revise the WOTUS rule and looks 

forward to continuing to work with both EPA and the Corps to develop a new regulatory 

mechanism which continues to protect, sustain and improve our nation's infrastructure while 

addressing the future challenges of the CWA. 

ARTBA is also a member of the Waters Advocucy Coalition <WAC) which has also submitted 

comments to this docket. ARTBA wholly supports the WAC comments and incorporates them 

by reference into this submission. 

Sincerely, 

T. Peter Ruane 

President & C.E.O 

3 
151 

LETTER SUBMITTED BY REPRESENTATIVE SUZANNE BONAMICI

lAMAR S, SMITH, Texas 

CHAJAMAN 

(tonyrcss of the rmnitcd ~tetcs 

'tlOU.SC Of 'JRcprc.scntotiUCS COMMITIEE ON SCIENCE, SPACE, AND TECHNOLOGY 

2321 RAYBUHN HOl.JSF OFFICE BUILDING 

WASHINGTON, DC 20515-6301 

(202) 225-6371 

www.science.hous!l.gov 

November 8, 2017 

The Honorable Eddie Bemice Johnson 

Ranking Member 

House Committee on Science, Space, and Technology 

394 Ford Office Building 

Washington, D.C. 20515 

Dear Ranking Member Johnson: 

EDDIE BERNICE JOHNSON, Texas 

RANKING MEMBER 

Thank you for your letter ofNovember 7, 2017, regarding U.S. Environmental Protection 

Agency Administrator Scott Pmitt testifYing before the Committee. The Committee has already 

been talking to EPA to determine a mutually convenient time for a hearing with the 

Administrator about environmental policies, regulations, and sound science. The Committee will 

keep you infmmed on our progress in this regard. 

cc 

Sincerely, 

Rep. Lamar Smith 

Chairman 

Committee on Science, Space, 

and Technology 

The Honorable Donald S. Beyer, Ranking Member Subcommittee on Oversight 

The Honorable Suzanne Bonamici, Ranking Member Subcommittee on Environment 

The Honorable Zoe Lofgren 
152 

The Honorable Daniel W. Lipinski 

The Honorable Ami Bera 

The Honorable Elizabeth Esty 

The Honorable Marc Veasey 

The Honorable Jacky Rosen 

The Honorable Jerry McNemey 

The Honorable Ed Perlmutter 

The Honorable Paul Tonko 

The Honorable Bill Foster 

Tbe Honorable Mark Talcano 

The Honorable Colleen Hanabusa 

111e Honorable Charlie Crist 
153 

REPORT SUBMITTED BY REPRESENTATIVE SUZANNE BONAMICI
154 

CONNECTIVITY OF STREAMS AND WETLANDS 

TO DOWNSTREAM WATERS: 

A REVIEW AND SYNTHESIS OFTHE 

SCIENTIFIC EVIDENCE 

Office of Research and Development 

U.S. Environmental Protection Agency 

Washington, DC 

EPA/600/R-14/475F 

January 2015 
155 

DISCLAIMER 

This document has been reviewed in accordance with U.S. Environmental Protection Agency policy and 

approved for publication. Mention of trade names or commercial products does not constitute 

endorsement or recommendation for use. 

Stream and Wetland Connectivity: 

A Review and Synthesis January 201.5 
156 

BACKGROUND 

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological 

integrity of the nation's waters. The U.S. Environmental Protection Agency's (U.S. EPA's) Office of 

Research and Development developed this report to inform rulemakingby the U.S. EPA and U.S. Army 

Corps of Engineers (U.S. ACE) on the definition of"waters of the United States" under the Clean Water 

Act (CWA). lts purpose is to summarize current scientific understanding about the connectivity and 

mechanisms by which streams and wetlands, singly or in aggregate, affect the physical, chemical, and 

biological integrity of downstream waters. The focus of the review is on surface and shallow subsurface 

connections of small or temporary streams, nontidal wetlands, and certain open waters. Because this 

report is a technical review of peer-reviewed scientific literature, it neither considers nor sets forth legal 

standards for CWA jurisdiction, nor does it establish EPA policy. 

The report is organized into six chapters. Chapter 1 outlines the purpose, scientific context, and 

approach of the report. Chapter 2 describes the components of a river system and watershed; the types 

of physical. chemical. and biological connections that link those components; the factors that influence 

connectivity at various temporal and spatial scales; and methods for quantifying connectivity. Chapter 3 

reviews literature on connectivity in stream networks in terms of physical, chemical, and biological 

connections and their resulting effects on downstream waters. Chapter 4 reviews literature on the 

connectivity and effects of non tidal wetlands and certain open waters on downstream waters. Chapter 5 

applies concepts and evidence from previous chapters to six case studies from published literature on 

Carolina and Delmarva bays, oxbow lakes, prairie potholes, prairie streams, southwestern streams, and 

vernal pools. Chapter 6 summarizes key findings and conclusions, identifies data gaps, and briefly 

discusses research approaches that could fill those gaps. A glossary of scientific terms used in the report 

Stream and Wetland Connectivity: 

A Review and Synthesis ES-1 January 2015 
157 

and detailed case studies of selected systems (summarized in Chapter 5) are included in Appendix A and 

Appendix B, respectively. 

SUMMARY OF MAJOR CONCLUSIONS 

Based on the review and synthesis of more than 1,200 publications from the peer reviewed scientific 

literature, the evidence supports five major conclusions. Citations have been omitted from the text to 

improve readability; please refer to individual chapters for supporting publications and additional 

information. 

Conclusion 1: Streams 

The scientific literature unequivocally demonstrates that streams, individually or cumulatively, 

exert a strong influence on the integrity of downstream waters. All tributary streams, including 

perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically 

connected to downstream rivers via channels and associated alluvial deposits where water and 

other materials are concentrated, mixed, transformed, and transported. Streams are the 

dominant source of water in most rivers, and the majority of tributaries are perennial, 

intermittent, or ephemeral headwater streams. Headwater streams also convey water into local 

storage compartments such as ponds, shallow aquifers, or stream banks, and into regional and 

alluvial aquifers; these local storage compartments are important sources of water for 

maintaining baseflow in rivers. In addition to water, streams transport sediment, wood, organic 

matter, nutrients, chemical contaminants, and many of the organisms found in rivers. The 

literature provides robust evidence that streams are biologically connected to downstream 

waters by the dispersal and migration of aquatic and semiaquatic organisms, including fish, 

amphibians, plants, microorganisms, and invertebrates, that use both upstream and 

downstream habitats during one or more stages of their life cycles, or provide food resources to 

downstream communities. In addition to material transport and biological connectivity, 

ephemeral, intermittent, and perennial flows influence fundamental biogeochemical processes 

by connecting channels and shallow ground water with other landscape elements. Physical, 

chemical, and biological connections between streams and downstream waters interact via 

integrative processes such as nutrient spiraling, in which stream communities assimilate and 

chemically transform large quantities of nitrogen and other nutrients that otherwise would be 

transported directly downstream, increasing nutrient loads and associated impairments due to 

excess nutrients in downstream waters. 

Conclusion 2: Riparian/Floodplain Wetlands and Open Waters 

The literature clearly shows that wetlands and open waters in riparian areas and floodplains are 

physically, chemically, and biologically integrated with rivers via functions that improve 

downstream water quality, including the temporary storage ;md deposition of channel-forming 

sediment and woody debris, temporary storage of local ground water that supports baseflow in 

Stream and Wetland Connectivity: 

A Review and Synthesis ES-2 January 2015 
158 

rivers, and transformation and transport of stored organic matter. Riparian/floodplain wetlands 

and open waters improve water quality through the assimilation, transformation, or 

sequestration of pollutants, including excess nutrients and chemical contaminants such as 

pesticides and metals, that can degrade downstream water integrity. In addition to providing 

effective buffers to protect downstream waters from point source and nonpoint source 

pollution, these systems form integral components of river food webs, providing nursery habitat 

for breeding fish and amphibians, colonization opportunities for stream invertebrates, and 

maturation habitat for stream insects. Lateral expansion and contraction of the river in its 

floodplain result in an exchange of organic matter and organisms, including fish populations that 

are adapted to use floodplain habitats for feeding and spawning during high water, that are 

critical to river ecosystem function. Riparian/floodplain wetlands and open waters also affect 

the integrity of downstream waters by subsequently releasing (desynchronizing) floodwaters 

and retaining large volumes of stormwater, sediment, and contaminants in runoff that could 

otherwise negatively affect the condition or function of downstream waters. 

Conclusion 3: Non-floodplain Wetlands and Open Waters 

Wetlands and open waters in non-floodplain landscape settings (hereafter called "nonfloodplain wetlands") provide numerous functions that benefit downstream water integrity. 

These functions include storage of floodwater; recharge of ground water that sustains river 

baseflow; retention and transformation of nutrients, metals, and pesticides; export of organisms 

or reproductive propagules to downstream waters; and habitats needed for stream species. This 

diverse group of wetlands (e.g., many prairie potholes, vernal pools, playa lakes) can be 

connected to downstream waters through surface-water, shallow subsurface-water, and 

ground-water flows and through biological and chemical connections. 

In general, connectivity of non-floodplain wetlands occurs along a gradient (Conclusion 4), and 

can be described in terms of the frequency, duration, magnitude, timing, and rate of change of 

water, material, and biotic fluxes to downstream waters. These descriptors are influenced by 

climate, geology, and terrain, which interact with factors such as the magnitudes of the various 

functions within wetlands (e.g., amount of water storage or carbon export) and their proximity 

to downstream waters to determine where wetlands occur along the connectivity gradient. At 

one end of this gradient, the functions of non-floodplain wetlands clearly affect the condition of 

downstream waters if a visible (e.g., channelized) surface-water or a regular shallow subsurfacewater connection to the river network is present. For non-floodplain wetlands lacking a 

channelized surface or regular shallow subsurface connection (i.e., those at intermediate points 

along the gradient of connectivity), generalizations about their specific effects on downstream 

waters from the available literature are difficult because information on both function and 

co nnectivlty is needed. Although there is ample evidence that non-floodplain wetlands provide 

hydrologic, chemical, and biological functions that affect material fluxes, to date, few scientific 

studies explicitly addressing connections between non-floodplain wetlands and river networks 

have been published in the peer-reviewed literature. Even fewer publications specifically focus 

Stream and Wetland Connectivity: 

A Review and Synthesis ES-3 January 2015 
159 

on the frequency, duration, magnitude, timing, or rate of change of these connections. In 

addition, although areas that are closer to rivers and streams have a higher probability of being 

connected than areas farther away when conditions governing the type and quantity of flowsincluding soil infiltration rate, wetland storage capacity, hydraulic gradient, etc.-are similar, 

information to determine if this similarity holds is generally not provided in the studies we 

reviewed. Thus, current science does not support evaluations of the degree of connectivity for 

specific groups or classes of wetlands (e.g., prairie potholes or vernal pools). Evaluations of 

individual wetlands or groups of wetlands, however, could be possible through case-by-case 

analysis. 

Some effects of non-floodplain wetlands on downstream waters are due to their isolation, rather 

than their connectivity. Wetland "sink" functions that trap materials and prevent their export to 

downstream waters (e.g., sediment and entrained pollutant removal, water storage) result 

because of the wetland's ability to isolate material fluxes. To establish that such functions 

influence downstream waters, we also need to know that the wetland intercepts materials that 

otherwise would reach the downstream water. The literature we reviewed does provide limited 

examples of direct effects of wetland isolation on downstream waters, but not for classes of 

wetlands (e.g., vernal pools). Nevertheless, the literature we reviewed enables us to conclude 

that sink functions of non-floodplain wetlands, which result in part from their relative isolation, 

will affect a downstream water when these wetlands are situated between the downstream 

water and known point or nonpoint sources of pollution, and thus intersect flowpaths between 

the pollutant source and downstream waters. 

Conclusion 4: Degrees and Determinants of Connectivity 

Watersheds are integrated at multiple spatial and temporal scales by flows of surface water and 

ground water, transport and transformation of physical and chemical materials, and movements 

of organisms. Although all parts of a watershed are connected to some degree-by the 

hydrologic cycle or dispersal of organisms, for example-the degree and downstream effects of 

those connections vary spatially and temporally, and are determined by characteristics of the 

physical, chemical, and biological environments and by human activities. 

Stream and wetland connections have particularly important consequences for downstream 

water integrity. Most of the materials-broadly defined as any physical, chemical, or biological 

entity-in rivers, for example, originate from aquatic ecosystems located upstream or elsewhere 

in the watershed. Longitudinal flows through ephemeral. intermittent, and perennial stream 

channels are much more efficient for transport of water, materials, and organisms than diffuse 

overland flows, and areas that concentrate water provide mechanisms for the storage and 

transformation, as well as transport, of materials. 

Connectivity of streams and wetlands to downstream waters occurs along a continuum that can 

be described in terms of the frequency, duration, magnitude, timing, and rate of change of water, 

material, and biotic fluxes to downstream waters. These terms, which we refer to collectively as 

Stream and Wetland Connectivity: 

A Review and Synthesis ES-4 January 2015 
160 

connectivity descriptors, characterize the range over which streams and wetlands vary and shift 

along the connectivity gradient in response to changes in natural and anthropogenic factors and, 

when considered in a watershed context, can be used to predict probable effects of different 

degrees of connectivity over time. The evidence unequivocally demonstrates that the stream 

channels and riparian/floodplain wetlands or open waters that together form river networks 

are clearly connected to downstream waters in ways that profoundly influence downstream 

water integrity. The connectivity and effects of non-floodplain wetlands and open waters are 

more variable and thus more difficult to address solely from evidence available in peerreviewed studies. 

Variations in the degree of connectivity influence the range of functions provided by streams 

and wetlands, and are critical to the integrity and sustainability of downstream waters. 

Connections with low values of one or more descriptors (e.g., low-frequency, low-duration 

streamflows caused by flash floods) can have important downstream effects when considered in 

the context of other descriptors (e.g., large magnitude of water transfer). At the other end of the 

frequency range, high-frequency, low-magnitude vertical (surface-subsurface) and lateral flows 

contribute to aquatic biogeochemical processes, including nutrient and contaminant 

transformation and organic matter accumulation. The timing of an event can alter both 

connectivity and the magnitude of its downstream effect. For example, when soils become 

saturated by previous rainfall events, even low or moderate rainfall can cause streams or 

wetlands to overflow, transporting water and materials to downstream waters. Fish that use 

nonperennial or perennial headwater stream habitats to spawn or rear young, and invertebrates 

that move into seasonally inundated floodplain wetlands prior to emergence, have life cycles 

that are synchronized with the timing of flows, temperature thresholds, and food resource 

availability in those habitats. 

Conclusion 5: Cumulative Effects 

The incremental effects of individual streams and wetlands are cumulative across entire 

watersheds and therefore must be evaluated in context with other streams and wetlands. 

Downstream waters are the time-integrated result of all waters contributing to them. For 

example, the amount of water or biomass contributed by a specific ephemeral stream in a give11 

year might be small, but the aggregate contribution of that stream over multiple years, or by all 

ephemeral streams draining that watershed in a given year or over multiple years, can have 

substantial consequences on the integrity of the downstream waters. Similarly, the downstream 

effect of a single event, such as pollutant discharge into a single stream or wetland, might be 

negligible but the cumulative effect of multiple disclmrges could degrade the integrity of 

downstream waters. 

In addition, when considering the effect of an individual stream or wetland, all contributions and 

functions of that stream or wetland should be evaluated cumulatively. For example, the same 

stream transports water, removes excess nutrients, mitigates flooding, and provides refuge for 

Stream and Wetland Connectivity: 

A Review and Synthesis ES·5 January 2015 
161 

fish when conditions downstream are unfavorable; if any of these functions is ignored, the 

overall effect of that stream would be underestimated. 

SUPPORT FOR MAJOR CONCLUSIONS 

This report synthesizes a large body of scientific literature on the connectivity and mechanisms by 

which streams, wetlands, and open waters, singly or in aggregate, affect the physical, chemical, and 

biological integrity of downstream waters. The major conclusions reflect the strength of evidence 

currently available in the peer-reviewed scientific literature for assessing the connectivity and 

downstream effects of water bodies identified in Chapter 1 of this report. 

The conclusions of this report were corroborated by two independent peer reviews by scientists 

identified in the front matter of this report. 

The term connectivity is defined in this report as the degree to which components of a watershed are 

joined and interact by transport mechanisms that function across multiple spatial and temporal scales. 

Connectivity is determined by the characteristics of both the physical landscape and the biota of the 

specific system. Our review found strong evidence supporting the central roles of the physical, chemical, 

and biological connectivity of streams, wetlands, and open waters-encompassing varying degrees of 

both connection and isolation-in maintaining the structure and function of downstream waters, 

including rivers, lakes, estuaries, and oceans. Our review also found strong evidence demonstrating the 

various mechanisms by which material and biological linkages from streams, wetlands, and open waters 

affect downstream waters, classified here into five functional categories (source, sink, refuge, lag, and 

transformation; discussed below), and modify the timing of transport and the quantity and quality of 

resources available to downstream ecosystems and communities. Thus, the currently available literature 

provided a large body of evidence for assessing the types of connections and functions by which streams 

and wetlands produce the range of observed effects on the integrity of downstream waters. 

We identified five categories of functions by which streams, wetlands, and open waters influence the 

timing, quantity, and quality of resources available to downstream waters: 

Source: the net export of materials, such as water and food resources; 

Sink: the net removal or storage of materials, such as sediment and contaminants; 

Refuge: the protection of materials, especially organisms; 

Transformation: the transformation of materials, especially nutrients and chemical 

contaminants, into different physical or chemical forms; and 

Lag: the delayed or regulated release of materials, such as stormwater. 

These functions are not mutually exclusive; for example, the same stream or wetland can be both a 

source of organic matter and a sink for nitrogen. The presence or absence of these functions, which 

Stream and Wetland Connectivity: 

A Review .and Synthesis ES·6 January 2015 
162 

depend on the biota, hydrology, and environmental conditions in a watershed, can change over time; for 

example, the same wetland can attenuate runoff during storm events and provide ground-water 

recharge following storms. Further, some functions work in conjunction with others; a lag function can 

include transformation of materials prior to their delayed release. Finally, effects on downstream waters 

should consider both actual function and potential function. A potential function represents the capacity 

of an ecosystem to perform that function under suitable conditions. For example, a wetland with high 

capacity for denitrification is a potential sink for nitrogen, a nutrient that becomes a contaminant when 

present in excessive concentrations. In the absence of nitrogen, this capacity represents the wetland's 

potential function. If nitrogen enters the wetland (e.g., from fertilizer in nmoff), it is removed from the 

water; this removal represents the wetland's actLial function. Both potential and actual functions play 

critical roles in protecting and restoring downstream waters as environmental conditions change. 

The evidence unequivocally demonstrates that the stream channels and riparian/floodplain wetlands or 

open waters that together form river networks are clearly connected to downstream waters in ways 

that profoundly influence downstream water integrity. The body of literature documenting connectivity 

and downstream effects was most abundant for perennial and intermittent streams, and for 

riparian/floodplain wetlands. Although less abundant, the evidence for connectivity and downstream 

effects of ephemeral streams was strong and compelling, particularly in context with the large body of 

evidence supporting the physical connectivity and cumulative effects of channelized flows that form and 

maintain stream networks. 

As stated in Conclusion 3, the connectivity and effects of wetlands and open waters that lack visible 

surface connections to other·water bodies are more difficult to address solely from evidence available in 

the peer-reviewed literature. The limited evidence currently available shows that these systems have 

important hydrologic, water-quality, and habitat functions that can affect downstream waters where 

connections to them exist; the literature also provides limited examples of direct effects of nonfloodplain wetland isolation on downstream water integrity. Currently available peer-reviewed 

literature, however, does not identify which types or classes of non-floodplain wetlands have or lack the 

types of connections needed to convey the effects on downstream waters of functions, materials, or 

biota provided by those wetlands. 

KEY FINDINGS FOR MAJOR CONCLUSIONS 

This section summarizes key findings for each of the five major conclusions, above and in Chapter 6 of 

the report. Citations have been omitted from the text to improve readability; please refer to individual 

chapters for supporting publications and additional information. 

Canclusion1, Streams: 1\ey Findings 

Streams are hydrologically connected to downstream waters via channels that convey surface 

and subsurface 1.'1'<!ter either year-round (i.e., perennial flow), weekly to seasonally (i.e., 

intermittent flow), or only in direct response to precipitation (i.e., ephemeral flow). Streams are 

Stre~m and Wetland Connectivity: 

A Review and Synthesis ES-7 January 2015 
163 

the dominant source of water in most rivers, and the majority of tributaries are perennial, 

intermittent, or ephemeral headwater streams. For example, headwater streams, which are the 

smallest channels where streamflows begin, are the cumulative source of approximately 60% of 

the total mean annual flow to all northeastern U.S. streams and rivers. 

In addition to downstream transport, headwaters convey water into local storage compartments 

such as ponds, shallow aquifers, or stream banks, and into regional and alluvial aquifers. These 

local storage compartments are important sources of water for maintaining baseflow in rivers. 

Streamflow typically depends on the delayed (i.e., lagged) release of shallow ground water from 

local storage, especially during dry periods and in areas with shallow ground-water tables and 

pervious subsurfaces. For example, in the southwestern United States, short-term shallow 

ground-water storage in alluvial floodplain aquifers, with gradual release into stream channels, 

is a major source of annual flow in rivers. 

• Infrequent, high-magnitude events are especially important for transmitting materials from 

headwater streams in most river networks. For example, headwater streams, including 

ephemeral and intermittent streams, shape river channels by accumulating and gradually or 

episodically releasing stored materials such as sediment and large woody debris. These 

materials help structure stream and river channels by slowing the flow of water through 

channels and providing substrate and habitat for aquatic organisms. 

• There is strong evidence that headwater streams function as nitrogen sources (via export) and 

sinks (via uptake and transformation) for river networks. For example, one study estimated that 

rapid nutrient cycling in small streams with no agricultural or urban impacts removed 20-40% 

of the nitrogen that otherwise would be delivered to downstream waters. Nutrients are 

necessary to support aquatic life, but excess nutrients lead to eutrophication and hypoxia, in 

which over-enrichment causes dissolved oxygen concentrations to fall below the level necessary 

to sustain most aquatic animal life in the stream and streambed. Thus, the influence of streams 

on nutrient loads can have significant repercussions for hypoxia in downstream waters. 

• Headwaters provide habitat that is critical for completion of one or more life-cycle stages of 

many aquatic and semiaquatic species capable of moving throughout river networks. Evidence 

is strong that headwaters provide habitat for complex life-cycle completion; refuge from 

predators, competitors, parasites, or adverse physical conditions in rivers (e.g., temperature or 

flow extremes, low dissolved oxygen, high sediment); and reservoirs of genetic- and specieslevel diversity. Use of headwater streams as habitat is especially critical for the many species 

that migrate between small streams and marine environments during their life cycles (e.g., 

Pacific and Atlantic salmon, American eels, certain lamprey species). The presence of these 

species within river networks provides robust evidence of biological connections between 

headwaters and larger rivers; because these organisms also transport nutrients and other 

materials as they migrate, their presence also provides evidence of biologically mediated 

chemical connections. In prairie streams, many fishes swim upstream into tributaries to release 

eggs, which develop as they are transported downstream. 

Stream and Wetland Connectivity: 

A Review and Synthesis ES·8 January 2015 
164 

Human alterations affect the frequency, duration, magnitude, timing, and rate of change of 

connections between headwater streams, including ephemeral and intermittent streams, and 

downstream waters. Human activities and built structures (e.g., channelization, dams, groundwater withdrawals) can either enhance or fragment longitudinal connections between 

headwater streams and downstream waters, while also constraining lateral and vertical 

exchanges and tightly controlling the temporal dimension of connectivity. ln many cases, 

research on human alterations has enhanced our understanding of the headwater streamdownstream water connections and their consequences. Recognition of these connections and 

effects has encouraged the development of more sustainable practices and infrastructure to 

reestablish and manage connections, and ultimately to protect and restore the integrity of 

downstream waters. 

Conclusion 2, Riparian/Floodplain Wetlands and Open Waters: Key Findings 

Riparian areas and floodplains connect upland and aquatic environments through both surface 

and subsurface hydrologic flowpaths. These areas are therefore uniquely situated in watersheds 

to receive and process waters that pass over densely vegetated areas and through subsurface 

zones before the waters reach streams and rivers. When pollutants reach a riparian or 

floodplain wetland, they can be sequestered in sediments, assimilated into wetland plants and 

animals, transformed into less harmful or mobile forms or compounds, or lost to the 

atmosphere. Wetland potential for biogeochemical transformations (e.g., denitrification) that 

can improve downstream water quality is influenced by local factors, including anoxic 

conditions and slow organic matter decomposition, shallow water tables, wetland plant 

communities, permeable soils, and complex topography. 

Riparian/floodplain wetlands can reduce flood peaks by storing and desynchronizing 

floodwaters. They can also maintain river baseflows by recharging alluvial aquifers. Many 

studies have documented the ability of riparian/floodplain wetlands to reduce flood pulses by 

storing excess water from streams and rivers. One review of wetland studies reported that 

riparian wetlands reduced or delayed floods in 23 of 28 studies. For example, peak discharges 

between upstream and downstream gaging stations on the Cache River in Arkansas were 

reduced 10-20% primarily due to floodplain water storage. 

• Riparian areas and floodplains store large amounts of sediment and organic matter from 

upstream and from upland areas. For example, riparian areas have been shown to remove 

80-90% of sediments leaving agricultural fields in North Carolina. 

Ecosystem function within a river system is driven in part by biological connectivity that links 

diverse biological communities with the river system. Movements of organisms that connect 

aquatic habitats and their populations, even across different watersheds, are important for the 

survival of individuals, populations, and species, and for the functioning of the river ecosystem. 

For example, lateral expansion and contraction of the river in its floodplain result in an exchange 

of matter and organisms, including fish populations that are adapted to use floodplain habitats 

Stream an(J Wetland Connectivity: 

A Review and Synthesis ES-9 January 2015 
165 

for feeding and spawning during high water. Wetland and aquatic plants in floodplains can 

become important seed sources for the river network, especially if catastrophic flooding scours 

vegetation and seed banks in other parts of the channel. Many invertebrates exploit temporary 

hydrologic connections between rivers and floodplain wetland habitats, moving into these 

wetlands to feed, reproduce, or avoid harsh environmental conditions and then returning to the 

river network. Amphibians and aquatic reptiles commonly use both streams and 

riparian/floodplain wetlands to hunt, forage, overwinter, rest, or hide from predators. Birds can 

spatially integrate the watershed landscape through biological connectivity. 

Canclusion 3, Non-floodplain Wetlands and Open Waters: Key Findings 

• Water storage by wetlands well outside of riparian or floodplain areas can affect streamflow. 

Hydrologic models of prairie potholes in the Starkweather Coulee subbasin (North Dakota) that 

drains to Devils Lake indicate that increasing the volume of pothole storage across the subbasin 

by approximately 60% caused simulated total annual streamflow to decrease SO% during a 

series of dry years and 20% during wet years. Similar simulation studies of watersheds that feed 

the Red River of the North in North Dakota and Minnesota demonstrated qualitatively 

comparable results, suggesting that the ability of potholes to modulate streamflow could be 

widespread across eastern portions of the prairie pothole region. This work also indicates that 

reducing water storage capacity of wetlands by connecting formerly isolated potholes through 

ditching or drainage to the Devils Lake and Red River basins could increase stormflow and 

contribute to downstream flooding. In many agricultural areas already crisscrossed by extensive 

drainage systems, total streamflow and baseflow are increased by directly connecting potholes 

to stream networks. The impacts of changing streamflow are numerous, including altered flow 

regime, stream geomorphology, habitat, and ecology. The presence or absence of an effect of 

prairie pothole water storage on streamflow depends on many factors, including patterns of 

precipitation, topography, and degree of human alteration. For example, in parts of the prairie 

pothole region with low precipitation, low stream density, and little human alteration, 

hydrologic connectivity between prairie potholes and streams or rivers is likely to be low. 

• Non-floodplain wetlands act as sinks and transformers for various pollutants, especially 

nutrients, which at excess levels can adversely impact human and ecosystem health and pose a 

serious pollution problem in the United States. In one study, sewage wastewaters were applied 

to forested wetlands in Florida for 4.5 years; more than 95% of the phosphorus, nitrate, 

ammonium, and total nitrogen were removed by the wetlands during the study period, and 

66-86% of the nitrate removed was attributed to the process of denitrification. In another 

study, sizeable phosphorus retention (0.3 to 8.0 mg soluble reactive P m-z d-1) occurred in 

marshes that comprised only 7% of the lower Lake Okeechobee basin area in Florida. A nonfloodplain bog in Massachusetts was reported to sequester nearly 80% of nitrogen inputs from 

various sources, including atmospheric deposition, and prairie pothole wetlands in the upper 

Midwest were found to remove >80% of the nitrate load via denitrification. A large prairie 

marsh was found to remove 86% of nitrate, 78% of ammonium, and 20% of phosphate through 

Stream and Wetland Connectivity; 

A Review and Synthesis ES-10 January 2015 
166 

assimilation and sedimentation, sorption, and other mechanisms. Together, these and other 

studies indicate that onsite nutrient removal by non-floodplain wetlands is substantial and 

geographically widespread. The effects of this removal on rivers are generally not reported in 

the literature. 

Non-floodplain wetlands provide unique and important habitats for many species, both common 

and rare. Some of these species require multiple types of waters to complete their full life cycles, 

including downstream waters. Abundant or highly mobile species play important roles in 

transferring energy and materials between non-floodplain wetlands and downstream waters. 

Biological connections are likely to occur between most non-floodplain wetlands and 

downstream waters through either direct or stepping stone movement of amphibians, 

invertebrates, reptiles, mammals, and seeds of aquatic plants, including colonization by invasive 

species. Many species in those groups that use both stream and wetland habitats are capable of 

dispersal distances equal to or greater than distances between many wetlands and river 

networks. Migratory birds can be an important vector of long-distance dispersal of plants and 

invertebrates between non-floodplain wetlands and the river network, although their influence 

has not been quantified. Whether those connections are of sufficient magnitude to impact 

downstream waters will either require estimation of the magnitude of material fluxes or 

evidence that these movements of organisms are required for the survival and persistence of 

biota that contribute to the integrity of downstream waters. 

• Spatial proximity is one important determinant of the magnitude, frequency and duration of 

connections between wetlands and streams that will ultimately influence the fluxes of water, 

materials and biota between wetlands and downstream waters. However, proximity alone is not 

sufficient to determine connectivity, due to local variation in factors such as slope and 

permeability. 

The cumulative influence of many individual wetlands within watersheds can strongly affect the 

spatial scale, magnitude, frequency, and duration of hydrologic, biological and chemical fluxes or 

transfers of water and materials to downstream waters. Because of their aggregated influence, 

any evaluation of changes to individual wetlands should be considered in the context of past and 

predicted changes (e.g., from climate change) to other wetlands within the same watershed. 

• N on-llooclplain wetlands can he hydrologically connected directly to river netvvorks through 

natural or constructed channels, nonchannelized surface flows, or subsurface flows, the latter of 

which can travel long distances to affect downstream waters. A welland surrounded by uplands 

is defined as "geographically isolated." Our review found that, in some cases, wetland types such 

as vernal pools and coastal depressional wetlands are collectively-and incorrectly-referred to 

as geographically isolated. Technically, the term "geographically isolated" should be applied only 

to the partin1lar wetlands within a type or class that are completely surrounded by uplands. 

Furthermore, "geographic isolation" should not be confused with functional isolation, because 

Stream and Wetland Connectivity: 

A Review and Synthesis ES-11 January 2015 
167 

geographically isolated wetlands can still have hydrologic, chemical. and biological connections 

to downstream waters. 

• Non-floodplain wetlands occur along a gradient of hydrologic connectivity-isolation with 

respect to river networks, lakes, or marine/estuarine water bodies. This gradient includes, for 

example, wetlands that serve as origins for stream channels that have permanent surface-water 

connections to the river network; wetlands with outlets to stream channels that discharge to 

deep ground-water aquifers; geographically isolated wetlands that have local ground-water or 

occasional surface-water connections to downstream waters; and geographically isolated 

wetlands that have minimal hydrologic connection to other water bodies (but which could 

include surface and subsurface connections to other wetlands). This gradient can exist among 

wetlands of the same type or in the same geographic region. 

• Caution should be used in interpreting connectivity for wetlands that have been designated as 

"geographically isolated" because (1) the term can be applied broadly to a heterogeneous group 

of wetlands, which can include wetlands that are not actually geographically isolated; (2) 

wetlands with permanent channels could be miscategorized as geographically isolated if the 

designation is based on maps or imagery with inadequate spatial resolution, obscured views, 

etc.; and (3) wetland complexes could have connections to downstream waters through stream 

channels even if individual wetlands within the complex are geographically isolated. For 

example, a recent study examined hydrologic connectivity in a complex of wetlands on the Texas 

Coastal Plain. The wetlands in this complex have been considered to be a type of geographically 

isolated wetland; however, collectively they are connected both geographically and 

hydrologically to downstream waters in the area: During an almost 4-year study period, nearly 

20% of the precipitation that fell on the wetland complex flowed out through an intermittent 

stream into downstream waters. Thus, wetland complexes could have connections to 

downstream waters through stream channels even when the individual wetland components 

are geographically isolated. 

Conclusion 4, Deg1·ees and Determinants of Connectivity: Key Findings 

• The surface-water and ground-water flowpaths (hereafter, hydrologic flowpaths), along which 

water and materials are transported and transformed, determine variations in the degree of 

physical and chemical connectivity. These flowpaths are controlled primarily by variations in 

climate, geology, and terrain within and among watersheds and over time. Climate, geology, and 

terrain are reflected locally in factors such as rainfall and snowfall intensity, soil infiltration 

rates, and the direction of ground-water flows. These local factors interact with the landscape 

positions of streams and wetlands relative to downstream waters, and with functions (such as 

the removal or transformation of pollutants) performed by those streams and wetlands to 

determine connectivity gradients. 

Gradients of biological connectivity (i.e., the active or passive movements of organisms through 

water or air and over land that connect populations) are determined primarily by species 

Stream and Wetland Connectivity: 

A Review and Synthesis ES-12 January 2015 
168 

assemblages, and by features of the landscape (e.g., climate, geology, terrain) that facilitate or 

impede the movement of organisms. The temporal and spatial scales at which biological 

pathways connect aquatic habitats depend on characteristics of both the landscape and species, 

and overland transport or movement can occur across watershed boundaries. Dispersal is 

essential for population persistence, maintenance of genetic diversity, and evolution of aquatic 

species. Consequently, dispersal strategies reflect aquatic species' responses and adaptations to 

biotic and abiotic environments, including spatial and temporal variation in resource availability 

and quality. Species' traits and behaviors encompass species-environment relationships over 

time, and provide an ecological and evolutionary context for evaluating biological connectivity 

in a particular watershed or group of watersheds. 

Pathways for chemical transport and transformation largely follow hydrologic flowpaths, but 

sometimes follow biological pathways (e.g., nutrient transport from wetlands to coastal waters 

by migrating waterfowl, upstream transport of marine-derived nutrients by spawning of 

anadromous fish, uptake and removal of nutrients by emerging stream insects). 

• Human activities alter naturally occurring gradients of physical, chemical, and biological 

connectivity by modifying the frequency, duration, magnitude, timing, and rate of change of 

fluxes, exchanges, and transformations. For example, connectivity can be reduced by dams, 

levees, culverts, water withdrawals, and habitat destruction, and can be increased by effluent 

discharges, channelization, drainage ditches and tiles, and impervious surfaces. 

Conclusion 5, Cumulative Effects: Key Findings 

Structurally and functionally, stream-channel networks and the watersheds they drain are 

fundamentally cumulative in how they are formed and maintained. Excess water from 

precipitation that is not evaporated, taken up by organisms, or stored in soils and geologic 

layers moves downgradient by gravity as overland flow or through channels carrying sediment, 

chemical constituents, and organisms. These channels concentrate surface-water flows and are 

more efficient than overland (i.e., diffuse) flows in transporting water and materials, and are 

reinforced over time by recurrent flows. 

Connectivity between streams and rivers provides opportunities for materials, including 

nutrients and chemical contaminants, to be transformed chemically as they are transported 

downstream. Although highly efficient at the transport of water and other physical materials, 

streams are dynamic ecosystems with permeable beds and banks that interact with other 

ecosystems above and below the surface. The exchange of materials between surface and 

subsurface areas involves a series of complex physical, chemical, and hiological alterations that 

occur as materials move through different parts of the river system. The amount and quality of 

such materials that eventually reach a river are determined by the aggregate effect of these 

sequential alterations that begin at the source waters, which can be at some distance from the 

river. The opportunity for transforrn<ltion of material (e.g., biological uptake, assimilation, or 

beneficial transformation) in intervening stream reaches increases with distance to the river. 

Stream and Wetland Connectivity: 

A Review and Synthesis E&-13 Jarluary 2015 
169 

Nutrient spiraling, the process by which nutrients entering headwater streams are transformed 

by various aquatic organisms and chemical reactions as they are transported downstream, is 

one example of an instream alteration that exhibits significant beneficial effects on downstream 

waters. Nutrients (in their inorganic form) that enter a headwater stream (e.g., via overland 

flow) are first removed from the water column by streambed algal and microbial populations. 

Fish or insects feeding on algae and microbes take up some of those nutrients, which are 

subsequently released back into the stream via excretion and decomposition (i.e., in their 

organic form), and the cycle is repeated. In each phase of the cycling process-from dissolved 

inorganic nutrients in the water column, through microbial uptake, subsequent transformations 

through the food web, and back to dissolved nutrients in the water column-nutrients are 

subject to downstream transport Stream and wetland capacities for nutrient cycling have 

important implications for the form and concentration of nutrients exported to downstream 

waters. 

• Cumulative effects across a watershed must be considered when quantifying the frequency, 

duration, and magnitude of connectivity, to evaluate the downstream effects of streams and 

wetlands. For example, although the probability of a large-magnitude transfer of organisms 

from any given headwater stream in a given year might be low (i.e., a low-frequency connection 

when each stream is considered individually), headwater streams are the most abundant type of 

stream in most watersheds. Thus, the overall probability of a large-magnitude transfer of 

organisms is higher when considered for all headwater streams in a watershed-that is, a highfrequency connection is present when headwaters are considered cumulatively at the 

watershed scale, compared with probabilities of transport for streams individually. Similarly, a 

single pollutant discharge might be negligible but the cumulative effect of multiple discharges 

could degrade the integrity of downstream waters. Riparian open waters (e.g., oxbow lakes), 

wetlands, and vegetated areas cumulatively can retain up to 90% of eroded clays, silts, and 

sands that otherwise would enter stream channels. The larger amounts of snowmelt and 

precipitation cumulatively held by many wetlands can reduce the potential for flooding at 

downstream locations. For example, wetlands in the prairie pothole region cumulatively stored 

about 11-20% of the precipitation in one watershed. 

• The combination of diverse habitat types and abundant food resources cumulatively makes 

floodplains important foraging, hunting, and breeding sites for fish, aquatic life stages of 

amphibians, and aquatic invertebrates. The scale of these cumulative effects can be extensive; 

for example, coastal ibises travel up to 40 km to obtain food from freshwater floodplain 

wetlands for nesting chicks, which cannot tolerate salt levels in local food resources until they 

fledge. 

Stream and Wetland Connectivity: 

A Review and Synthesis ES-14 January 2015 
170 

CLOSING COMMENTS 

The structure and function of downstream waters highly depend on materials-broadly defined as any 

physical. chemical, or biological entity-that originate outside of the downstream waters. Most of the 

constituent materials in rivers, for example, originate from aquatic ecosystems located upstream in the 

drainage network or elsewhere in the drainage basin, and are transported to the river through 

flowpaths illustrated in the introduction to this report. Thus, the effects of streams, wetlands, and open 

waters on rivers are determined by the presence of (1) physical. chemical, or biological pathways that 

enable (or inhibit) the transport of materials and organisms to downstream waters; and (2) functions 

within the streams, wetlands, and open waters that alter the quantity and quality of materials and 

organisms transported along those pathways to downstream waters. 

The strong hydrologic connectivity of river networks is apparent in the existence of stream channels 

that form the physical structure of the network itself. Given the evidence reviewed in this report, it is 

clear that streams and rivers are much more than a system of physical channels for efficiently conveying 

water and other materials downstream. The presence of physical channels, however, is a compelling line 

of evidence for surface-water connections from tributaries, or water bodies of other types, to 

downstream waters. Physical channels are defined by continuous bed-and-bank structures, which can 

include apparent disruptions (such as by bedrock outcrops, braided channels, flow-through wetlands) 

associated with changes in the material and gradient over and through which water flows. The 

continuation of bed and banks downgradient from such disruptions is evidence of the surface 

connection with the channel that is up gradient of the perceived disruption. 

Although currently available peer-reviewed literature does not identifY which types of non-floodplain 

wetlands have or lack the types of connections needed to convey functional effects to downstream 

waters, additional information (e.g., field assessments, analysis of existing or new data, reports from 

local resource agencies) could be used in case-by-case analysis of non-floodplain wetlands. Importantly, 

information from emerging research into the connectivity of non-floodplain wetlands, including studies 

of the types identified in Section 4.5.2 of this report, could close some of the current data gaps in the 

near future. Recent scientific advances in the fields of mapping, assessment, modeling, and landscape 

classification indicate that increasing availability of high-resolution data sets, promising new 

technologies for watershed-scale analyses, and methods for classifYing landscape units by hydrologic 

behavior can facilitate and improve the accuracy of connectivity assessments. Emerging research that 

expands our ability to detect and monitor ecologically relevant connections at appropriate scales, 

metrics to accurately measure effects on downstream integrity, and management practices that apply 

what we already know about ecosystem function will contribute to our ability to identifY waters of 

national importance and maintain the long-term sustainability and resiliency of valued water resources. 

Stream and Wetland Connectivity: 

A Revlew and Synthesis ES-15 January 2015 
171 

LETTER SUBMITTED BY REPRESENTATIVE SUZANNE BONAMICI

Lf.I.MAR S. SMITH, Texas 

CHAIRMAN 

Q:ongrnm of the iinitcd ~rates 

!'louse of 'Rcprrscntatiocs COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

The Honorable Lamar Smith 

Chairman 

2321 RAYBURN HOUSE 0FF!CE 8U!l .. D!NG 

WASHINGTON, DC 20515--6301 

(202) 225-6371 

www.SCJenctl.housll.gov 

House Committee on Science, Space and Technology 

2321 Rayburn House Office Building 

Washington D.C. 20515 

Dear Chairman Smith: 

EDDIE BERNICE JOHNSON, Texas 

RANKING MEMBER 

November 7, 2017 

We write to express our disappointment that Scott Pruitt, the Administrator of the Environmental 

Protection Agency (EPA), has yet to testify before the Committee on Science, Space and 

Technology.' Administrator Pruitt's predecessor, Gina McCarthy, testified before this Committee 

on three occasions during the second term of the Obama Administration, testifying first just four 

months after her confirmation. 2 By comparison, Administrator Pruitt was confirmed eight 

months ago. 

The Science Committee has oversight jurisdiction over the EPA's science programs and 

research. Further, Congress and the Science Committee have a constitutional role in holding the 

Executive Branch ofthe government accountable and providing legitimate oversight of federal 

agencies, particularly when questions of waste, inefficiencies, ineffectiveness, and potentially 

unethical behavior arise. During Administrator Pruitt's short tenure at EPA, multiple issues have 

already emerged regarding the costs of his travel, use of a 24/7 security detail, the vetting of 

scientific grants by political appointees, wasteful use of limited Agency financial resources, his 

tics and interactions with the industries he is expected to regulate, and other matters. 

We respectfully request that you invite EPA Administrator Pruitt to testify before the Science 

Committee as soon as possible. Specifically, we would like to hear concrete responses from 

Administrator Pruitt regarding the following issues: 

1 Coral Davenport, "Senate Confirms Scott Pruitt as E.P.A. Head," New York Times, February 17,2017, accessed 

here: https ://www .nytimes. \'Om/2 0 17/02/17/usloo litics/scott -pru itt -environ mental-protection-agency.html 2 As EPA Administrator Gina McCarthy testified before the Science Committee three times, on the following dates: 

November 14, 2013, lntps:llscience.house.govllegislation!hearingslfull-committee-hearing-stTengtheningtransparcncy-and-accountabilirv-within; July 9, 2015, https://sci_ence.house.govllegislation!hearingslexamining-epas-regulatory-overreach; and June 22, 2016, httDs:/lscience.house.oovllegislation/hearings/full-committee-hearingensurin!!-SOUnd-science-ena 
172 

Questionable Expenses, Trips, & Security: 

I. At the same time Administrator Pruitt has called for reducing the budget of the EPA by 

one-third, his office has contracted to spend more than $25,000 to construct a Sensitive 

Compartmented Infonnation Facility (SCIF) in his own office. Two SC!Fs already exist 

in the same building. He should account to Congress and the public for this duplicative 

and wasteful use of taxpayer funds 3 

II. For the first time ever in the EPA's history, the Agency is now providing a 24/7 security 

detail for its Administrator. This has come with more than just a financial cost to the 

agency. It has also delayed and diminished the ability of the EPA's Office of 

Enforcement and Compliance Assurance (OECA) to do its job. The OECA, according to 

their website, "goes after pollution problems that impact American communities through 

vigorous civil and criminal enforcement. Our enforcement activities target the most 

serious water, air and chemical hazards. As part of this mission, we work to advance 

environmental justice by protecting communities most vulnerable to pollution.'>'~ 

However, Administrator Pruitt now reportedly has 18 officials from OECA detailed to 

providing him round-the-clock security rather than pursuing criminal cases against 

corporations that violate federal environmental regulations and foul the environment. 

This office, which has been understatred for years, attempts to ensure the environmental 

security and safety of American citizens being harmed by pollution and other toxic 

hazards. 5 Diverting these officials to Pruitt's personal security detail further undercuts the 

mission and effectiveness of this office. 

III. Multiple media stories have detailed the excessive costs of Administrator Pruitt's travel, 

including the use of private charter and military aircraft at a cost to taxpayers of more 

than $58,000. He has also reportedly been flying in first class when he has flown on 

commercial flights, along with at least some of his security detail.6 Administrator Pruitt 

should justify the costs of his travel to the public. 

3 See: Timothy Cama, "EPA spending almost $25,000 for soundproof booth," The Hill, September 26,2017, 

accessed here: http://thehill.com/policy/energy~environment/352528-epa-spending-almost-25000-for-soundproofbooth; Miranda Green, "EPA chief getting his own $25,000 sound-proof booth," CNN, September 26,2017, 

accessed here: www.cnn.com/2017/09/26/politics/pruitt-sound-proof-boo!.h/index.html; Michael Biesecker, "EPA 

buys Pruitt a special booth for secret communications," Associated Press, September 27, 2017, accessed here: 

www.washingtonpost.com/politics/epa-buys-pruitt-a-special-booth-for-secretcommunications/2017/09/27/446a 13a2-a3c8-J I e7-b573-8ec86cdfe Jed storv.html?utm term=.78b652e0 194d 4 "About the Office of Enforcement and Compliance Assurance (OECA): What We Do," Environmental Protection 

Agency) accessed here: www.epa.gov/aboutepalabout-office-enforcement-and-compliance-assurance-oeca 5 See: Rene Marsh and Gregory Wallace, "EPA pulls agents from criminal investigations to guard Pruitt," CNN, 

September 21, 2017, accessed here: http://www.cnn.com/20 J 7109/21/politicslepa-pruitt-agents/index.html; Juliet 

Eilperin and Brady Dennis, "At EPA, guarding the chief pulls agents from pursuing environmental crimes," 

Washington Post, September 20, 2017, accessed here: https:/lwww.washin~tonpost.eom/national/health-science/atepa-guarding-the-chief-pulls-agents-from-pursuing-environmental-crimes/20 J 7/09/19!7b7b8b6c-9ce0-11 e7-8ea 1-

ed975285475e §_tory.html?utm term~.026af87ba494 

6 Brady Dennis and Juliet Eilperin, "EPA's Pruitt took charter, military flights that cost taxpayers more than 

$58,000," Washington Post, September 27, 2017, accessed here: https://www.washingtonpost.com/news/energyenvironment/wp/2 0 I 7/09/27/epas-pruitt ·took -charter-m i I itary-tl i ~hts-that -cost -taxpayers-more-than58000/?utm term-.c2ebal 57d74a 

2 
173 

IV. Many of Administrator Pmitt's taxpayer funded flights have been to his home state of 

Oklahoma and the justification for these flights has come into question. Press reports, 

based on data obtained through Freedom of Information Act (FOIA) requests to EPA, 

show that Administrator Pmitt often flies home on a Friday under the pretext of a 

business meeting and stays in his home state of Oklahoma over the weekend. From 

March through May 2017, he apparently spent 43 out of 92 days in Oklahoma.7 This 

gives the appearance that Secretary Pruitt is mixing political gatherings and personal 

destinations with official business. The disproportionate attention to Oklahoma has 

already fueled speculation that Secretary Pmitt plans to return to the State and run for 

office. Congress and the American public deserve a thorough accounting for, and 

justification of, these frequent t1ights. 

Industry and Political Interests vs. Scientific Facts: 

I. According to multiple media reports and substantiated by his own official calendar of 

meetings, which was released under a FOIA request, Administrator Pruitt has had a 

stream of corporate executives flowing through his office. From April 2017 through 

early September 2017, he met with senior officials from, or spoken at gatherings 

organized by, a multitude of corporate entities and industry associations. This included 

the Chemours Company, Shell Oil Company, Southern Company, Phillips 66, National 

Mining Association, National Association of Manufacturers, American Petroleum 

Institute, American Fuel & Petrochemical Manufacturers, Oklahoma Independent 

Petroleum Association, Crop Life America, Boeing, General Electric, BMW, General 

Motors and the Ford Motor Company, among others. During the same time period he 

reportedly met with only two environmental groups and one public health organization, 

the American Academy of Pediatrics. 8 

Most disturbingly he has issued policy directives, favored by these corporations and 

industry trade groups, following these meetings. In one case, hours after meeting with the 

CEO of a foreign mining company, the Pebble Limited Partnership (PLP), EPA 

Administrator Pruitt directed his staff to withdraw from a plan under the Clean Water 

Act's 404(c) process to protect the watershed of Bristol Bay, Alaska. His decision will 

help the mining company push forward a controversial proposal to build one of the 

world's largest open pit copper and gold mines at the headwaters of one of the world's 

7 Lisa Friedman, "Scott Pruitt Spent Much of Early Months at E.P.A. Traveling Home, Report Says," New York 

Times, July 24,2017, accessed here: www.nytimes.com/2017/07/24/climate/scott-pruitt-epa-travel-expenses.html 

'See, Steven Mufson and Juliet Elperin, "EPA chief Pruitt met with many corporate execs. Then he made decisions 

in their favor," Washington Post, September 23, 2017, accessed here: www. washingtonpost.com/news/energyenvironment/wp/20 17/09/22/epa-chief-pruitt-met-with-many-cornorate-execs-shortly-before-making-decisions-intheir-favor/?uJm term~.al400c7e358a; James Jacoby, Anya Bourg and Frank Koughan (producers), "War On The 

EPA," PBS Frontline, October ll, 2017, accessed here: www.pbs.org/wgbhJfrontline/film/war-on-the-epa/; 

Eric Lipton and Lisa Friedman, "E.P.A. Chiefs Calendar: A Stream oflndustry Meetings andTrips Home," New 

York Times, accessed here: www.nytimes.com/20 17/l 0/03/us/politics/cpa-scott-pruitt-calendar-industrics-coal-oilenvironmentalists.html 

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largest natural sockeye salmon fisheries. 9 These actions raise serious questions about 

whether the EPA Administrator is attempting to fulfill the Agency's mission to protect 

the public health of Americans or if he is simply carrying out the agenda of the very 

industries he is supposed to regulate. The public deserves an explanation from 

Administrator Pruitt. 

II. Administrator Pruitt has taken steps to remove independent scientists from the Agency's 

science advisory panels and stock these panels with industry representatives and 

scientists financed by industry interests. 10 Repopulating these science advisory boards 

with individuals who work for, or are financed by, those industries that are supposed to 

be regulated by the Agency undermines the scientific integrity of the EPA These actions 

undercut the mission of the EPA and endanger the health and safety of the public. II "The 

mission of EPA is to protect human health and the environment," according to the 

Agency's own wcb-siteP It is not to protect the interests of industry. Information from 

industry and the perspectives of industry are important, but they should not supplant 

sound objective scientific data. 

III. Rather than having scientific experts review potential EPA grant awards to nonprofits, 

universities and other institutions, which has traditionally been the case at EPA, 

Administrator Pruitt has placed that responsibility into the hands of political appointees. 13 

While new Administrations and new Administrators of federal agencies periodically reevaluate their programs and policies, Scott Pruitt has demanded that all competitive 

9 Drew Griffin, Scott Bronstein and John D. Sutter, "EPA head met with a mining CEO-- and then pushed forward a 

controversial mining project," CNN, September 22,2017, accessed here: 

http://www .cnn .com/20 J 7 /09/22/po I itics/pebble-epa-bristo !-bay-invs/i ndex. htm I 10 See: Chris Mooney and Juliet Eilperin, "EPA just gave notice to dozens of scientific advisory board members that 

their time is up," fVashington Post, June 20,2017, accessed here: https:!/www.washingtonpost.com/news/energyenviro nment/wp/20 17 /06/20/trump-admin i stration-to-dee I ine-to-renew-dozens-o f-scientists-for-key-epa -advisoryboard/?utm term~.e70070 171 039; Rene Marsh and Theodore Schleifer, "Pruitt removes scientists from key EPA 

board," May 8, 2017, CNN, accessed here: www.cnn.com/2017/05/08/politics/epa-scott-pruitt-board/index.html; 

Zach Coleman, "A Little Less Science for EPA's Science Advisory Boards," UN DARK, July 12,2017, accessed 

here: https://undark.org/20 17 /07/12/epa-science-advisory-board-pruitt/ 11 See: Chris Mooney and Juliet Eilpcrin, 11EPAjust gave notice to dozens of scientific advisory board members that 

their time is up," Washington Post, June 20, 2017, accessed here: https:l/www,washingtonpost.corn/news/energyenvironmen tlwp/20 17 /06/20/trump-adm in istration-to-dec line-to-renew-dozens-of-scientists-for-key-epa-advisoryboard/?utm term-.e7007017!039; Rene Marsh and Theodore Schleifer, "Pruitt removes scientists from key EPA 

board," May 8, 2017, CNN, accessed here: www.cnn.com/2017/05/08/politics/epa-seott-p,ruitt-board/index.html; 

Zach Coleman, "A Little Less Science for EPA's Science Advisory Boards," UN DARK, July 12, 2017, accessed 

here: https://undark.org/20 17/07 I 12/epa-seience-advisory-board-pruitt/ 12 "Our Mission and What We Do," Environmental Protection Agency (EPA), accessed here: 

https://www.epa.gov/aboutepalour-mission-and-what-we-do 

13 See: Sean Reilly, "Pruitt assigns political appointee to vet grant requests," E&E News, August 17, 2017, accessed 

here: https://www.eenews.net/stories/1060058907; Annie Snider, "EPA puts grants under scrutiny cuts some 

funding," Politico Pro, August, 24, 2017, accessed here: www.politieopro.com/energy/whiteboard/2017/08/epa-putsgrants-under-scrutiny-cuts-some-funding-092068; Juliet Elperin, "EPA now requires political aide's sign-off for 

agency awards, grant applications," Washington Post, September 4, 2017, accessed here: 

www.washingtonpost.com/pQiitics/epa-now-re_g_uires-political-aides-sirn:gff-for-agcncy-awards-grant: 

applications/20 17/09/04/2fd707a0-88fd-ll e7-a94f-3139abce39f5 storv.html?utm term-.c]-"§4ada8711; Daniella 

Diaz, "Report: Political aide signs off grant applications, awards at EPA," CNN, September 5, 2017, accessed here: 

www.cnn .com/20 17 /09/05/po 1 itics/epa-j ohn-kon k us-grant -award-appl ications/index.htm 1 

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scientific and other grant solicitations be reviewed by political appointees in the EPA's 

Office of Public Affairs (OPA)14 The individual assigned to vetting these scientific 

grants has no scientific background or expertise, ensuring that grants will be judged by 

political criteria rather than on their scientific and technical merits. This is bound to 

undermine the integrity of EPA-funded scientific studies and harm U.S. environmental 

research, scientific innovation and the safety of the public from potential exposure to 

harmful chemicals. Administrator Pruitt should explain the rationale for this questionable 

change in the EPA's grant-making process, as it appears to rely on politics rather than 

science as a barometer of integrity and necessity. 

IV. Since taking over as Administrator of the EPA, Administrator Pruitt has directed that 

terms he appears to dislike, such as "climate change," be scrubbed from the Agency's 

wcbsite. 15 An abundance of scientific evidence has clearly shown the climate is changing, 

the planet is warming, and human caused carbon emissions are largely to blame. Personal 

beliefs are not science and attempting to hide terms from the public won't make issues 

disappear. Administrator Pruitt should justify his actions and explain how these decisions 

were based on scientific evidence and not political beliefs. 

Moreover, it was concerning to hear that the EPA's Office of Public Affairs decided to 

cancel the speaking appearance of three agency scientists who were scheduled to report 

on their work and discuss climate change at a conference in Rhode Island. 16 The 

Narragansett Bay Estuary Progran1, funded through the EPA, was hosting the conference 

and the scientists were expected to discuss the state of the Bay. Given the lack of 

explanation from the Administration, this agency action reinforces concerns that the 

Agency is silencing science they dislike and preventing EPA scientists from engaging in 

scientific discussions. The EPA has a responsibility to the public to adequately address 

these issues, not silence scientists or scrub away scientific evidence that simply highlights 

the issue of climate change. 

We call on you as Chairman of the House Committee on Science, Space and Technology to 

request that Administrator Pruitt testify before the Committee as soon as possible. Not only is 

such oversight routine, but as a public official Administrator Pruitt has an obligation to address 

his conduct and management of EPA. His leadership of EPA in eight short months has already 

resulted in policies that favor the very industries he is supposed to regulate, potentially resulting 

in harm to Americans' public health and safety. 

14 "Protocol for Office of Public Affairs Review of Draft Competitive Grant Solicitations," Office of the 

Administrator, Environmental Protection Agency (EPA), accessed here: 

www.documentcloud.org/documents/3954249-EPA-s-new-procedures-for-drafting-competitive.html#documenr/pl 

15 See: Michael Hiltzik, "Trump's EPA has started to scrub climate change data from its website," Los Angeles 

Times, May I, 2017, accessed here: http://www.latimes.com/businesslhiltziklla-fi-hiltzik-epa-climate-20 170501-

ili)ry.html; Michael Collins, "EPA removes climate change data, other scientific information from website," USA 

Today, April 29, 2017, accessed here: https://www.usatoday.com/story/news/politics/20 17/04129/epa-removesclimate-change-data-other-scientific-information-website/1 01 072040/; Niina Heikkinen, "EPA Just Scrubbed Even 

More Mentions of Climate fi·om Its Web Site," Climate Wire, May 8, 2017, accessed here: 

https://www.scientificamerican.com/articie/epa-just-scrubbed-even-more-mentions-of-climate-from-its-web~site/ 

16 Friedman, Lisa, "E.P.A. Cancels Talk on Climate Change by Agency Scientists," New York Times. Oct. 22, 2017, 

accessed here: https://www.llYtimes.com/20 17/1 0/22/climate/epa-s.<J~ntists.html 

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Each of the items mentioned above deserves its own hearing. There has been no satisfactory 

response by either Mr. Pruitt or the EPA justifying the above issues. At a minimum, the 

Committee and the public deserve a detailed explanation of the actions taken by Administrator 

Pmitt and the EPA. It is critically important that the Committee engage in serious oversight of 

the Executive Branch and ensure that the policies and practices of the EPA are not banning the 

American people. It is important we hear from Administrator Pruitt to understand how he 

believes he is carrying out the core mission of the EPA to protect the American public from 

environmental risks while managing the Agency in an effective, efficient and ethical manner. 

Thank you for your attention to this matter. 

Sincerely, 

&ie-~~U- Representatlve Eddie Bernice ~o~ov-- Johnson 

Ranking Member 

Repr 

v-1/.oe-Y~I-<..L ntative Suzanne 

~ Bonamici 

Rankmg Member 

Subcommittee on Environment 

.J)~~~- Representative Dame! W. Lipinski 

6 

sentative Donal 

s~r S. Be r J 

Ranking Member 

Subcommittee on Oversi ht 

Representative Ami Bera 

.,::,~~ )n::~ 

ntative Jeny McNenC,/ 
177 

Æ 

Representative Ed Perlmutter Representative Paul Tonko 

Representative Bill Foster 

Representativ Colleen Hanabusa 

;1/ /' w 

epresentahve ~hl C ar w Cnst