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94–997 PDF 2015

S. HRG. 114–27 

LEGISLATIVE HEARING ON S. 1140, 

THE FEDERAL WATER QUALITY PROTECTION ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON FISHERIES, WATER, 

AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MAY 19, 2015 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

SUBCOMMITTEE ON FISHERIES, WATER, AND WILDLIFE

DAN SULLIVAN, Alaska, Chairman 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

JAMES M. INHOFE, Oklahoma (ex officio) 

SHELDON WHITEHOUSE, Rhode Island 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

BARBARA BOXER, California (ex officio) 
(III) 

C O N T E N T S 

Page 

MAY 19, 2015 

OPENING STATEMENTS 

Sullivan, Hon. Dan, U.S. Senator from the State of Alaska ................................ 1 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 3 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ......... 4 

Boxer, Hon. Barbara, U.S. Senator from the State of California, prepared 

statement .............................................................................................................. 109 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, prepared 

statement .............................................................................................................. 151 

WITNESSES 

Metzger, Susan, Assistant Secretary, Kansas Department of Agriculture ......... 41 

Prepared statement .......................................................................................... 43 

Response to an additional question from Senator Inhofe ............................. 45 

Pifher, Mark, Manager, Southern Delivery System, Colorado Springs Utilities, 

on behalf of the National Water Resources Association ................................... 46 

Prepared statement .......................................................................................... 48 

Responses to additional questions from Senator Inhofe ............................... 56 

Pierce, Robert, Wetland Training Institute, Inc. .................................................. 58 

Prepared statement .......................................................................................... 60 

Response to an additional question from Senator Fischer ............................ 76 

Parenteau, Patrick, Professor of Law, Senior Counsel, Environmental and 

Natural Resources Law Clinic, Vermont Law School ....................................... 83 

Prepared statement .......................................................................................... 85 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 93 

Senator Gillibrand ..................................................................................... 97 

Lemley, Andrew, Government Affairs Representative, New Belgium Brewing 

Company ............................................................................................................... 102 

Prepared statement .......................................................................................... 104 

Responses to additional questions from Senator Inhofe ............................... 106 

ADDITIONAL MATERIAL 

May 19, 2015, Statement for the Record from the National Stone, Sand 

& Gravel Association ........................................................................................... 153 

May 19, 2015, letter from the Society for Freshwater Science ............................ 158 

May 20, 2015, letter from the American Chemistry Council ............................... 161 

S. 1140 Federal Water Quality Protection Act Summary .................................... 163 

Need for S. 1140 the ‘‘Federal Water Quality Protection Act’’ ............................. 165 

(1) 

LEGISLATIVE HEARING ON S. 1140, THE 

FEDERAL WATER QUALITY PROTECTION ACT 

TUESDAY, MAY 19, 2015 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON FISHERIES, WATER, AND WILDLIFE, Washington, DC. 

The committee met, pursuant to notice, at 10:02 a.m. in room 

406, Dirksen Senate Building, Hon. Dan Sullivan (chairman of the 

subcommittee) presiding. 

Present: Senators Sullivan, Barrasso, Capito, Boozman, Sessions, 

Fischer, Rounds, Whitehouse, Gillibrand, and Markey. 

OPENING STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM THE STATE OF ALASKA 

Senator SULLIVAN. The Subcommittee on Fisheries, Water, and 

Wildlife will now come to order. 

Thank you to all of you for your attendance here this morning 

on an important bipartisan bill offered by my colleague Senator 

Barrasso. 

I am proud to be an original co-sponsor of S. 1140, The Federal 

Water Quality Protection Act, as this bill would address many of 

the concerns we have all been hearing regarding the EPA and 

Army Corps’ proposed Waters of the United States Rule or the 

WOTUS rule. 

Over the last few months, we have held several hearings, including two field hearings in Alaska, on the proposed rule where we 

heard testimony from a variety of witnesses including the EPA Administrator, Assistant Secretary of the Army, State and local government representatives, as well as other stakeholders. 

This bill is a continuation of those efforts and would require the 

agencies to withdraw the current proposed WOTUS rule and issue 

a revised rule proposal that adheres to a series of principles delineated by Congress, only after completing numerous procedural requirements bypassed the first time around. 

In our first hearing on this issue, I asked the EPA Administrator 

McCarthy to share with me the agency’s internal analysis justifying this rule. I am still waiting for a response. It was a simple 

request and I believe it is outrageous that the EPA cannot issue 

a legal opinion citing the legal justification for this rule. 

It would be useful for the EPA Administrator to not only address 

that legal justification of that rule but the front page article in the 

New York Times today on accusations that the EPA is violating the 

anti-Federal lobbying law in relation to this rule. It would be good 
2 

to have both of those legal analyses from the EPA as soon as possible. 

Three-fifths of the States oppose the proposed WOTUS rule along 

with more than 300 trade groups and associations from across the 

Country. While it is Congress’ job to prevent this massive expansion of Federal jurisdiction, we must do it in a way that protects 

our waters and allows States the opportunity to fulfill their roles 

as co-regulators under the Clean Water Act. 

A huge percentage of Alaska already falls under Federal Clean 

Water Act jurisdiction. This means that those building or doing 

business on or near these waters have to wrangle with the Federal 

Government to obtain costly permits and approvals. 

While there is no doubt that many of these waters, such as the 

Yukon and Kuskokwim Rivers, and their tributaries, are clearly jurisdictional under the Clean Water Act. The proposed rule seeks to 

go further and would encompass many waters that Congress never 

intended to be jurisdictional. 

This massive expansion of Federal authority will have harsh consequences for not only those who are trying to develop the land but 

State and local governments charged with protecting their own 

unique resources. It is also an expansion of Clean Water Act jurisdiction that I believe only Congress can grant. 

Alaska has some of the cleanest waterways in the world resulting in vibrant, world class fisheries and award-winning drinking 

water. We need to ensure that any effort to clarify Federal jurisdiction under the Clean Water Act does not jeopardize these characteristics that are so fundamental to the identity of Alaska and 

other States throughout the Country. 

Today we are here to discuss a bipartisan bill that would not 

only help to clarify jurisdiction and prevent unlawful Federal overreach, but it would also help to ensure that the protection of Alaska’s precious resources remain in the hands of those who live near 

and rely on them. 

Thank you all again for being here this morning and I look forward to hearing from our witnesses. 

I yield the remainder of my time to my colleague, Senator 

Barrasso. 

[The prepared statement of Senator Sullivan follows:] 

STATEMENT OF HON. DAN SULLIVAN, U.S. SENATOR

FROM THE STATE OF ALASKA

Good morning and thank you all for being here today to discuss an important bipartisan bill, offered by my colleague Senator Barrasso. I am proud to be an original 

cosponsor of S. 1140, The Federal Water Quality Protection Act, as this bill would 

address many of the concerns we’ve all been hearing regarding the EPA and Army 

Corps’ proposed ‘‘waters of the United States’’ rule. 

Over the last few months, we have held several hearings, including two in Alaska, 

on the proposed rule where we heard testimony from a variety of witnesses including the EPA Administrator, Assistant Secretary of the Army, State and local government representatives, as well as other stakeholders. This bill is a continuation of 

those efforts and would require the agencies to withdraw the current proposed rule 

and issue a revised proposal that adheres to a series of principles, only after completing numerous procedural requirements bypassed the first time around. 

Three-fifths of the States oppose the proposed rule along with more than 300 

trade groups and associations from across the country. While it is Congress’s job to 

prevent this massive expansion of Federal jurisdiction, we must do it in a way that 

protects our waters and allows States the opportunity to fulfill their roles as co-regulators under the Clean Water Act (CWA). 
3 

A huge percentage of Alaska already falls under Federal CWA jurisdiction. This 

means that those building or doing business on or near these waters have to wrangle with the Federal Government to obtain costly permits and approval. While there 

is no doubt that many of these waters, such as the Yukon, Kuskokwim, and Susitna 

rivers, and their tributaries, are clearly jurisdictional under the Clean Water Act, 

the proposed rule seeks to go further and would encompass many waters that Congress never intended to be jurisdictional. This massive expansion of Federal authority will have harsh consequences for not only industry but State and local governments charged with protecting their own unique resources. 

Alaska has some of the cleanest waterways in the world resulting in vibrant, 

world class fisheries and award-winning drinking water. We need to ensure that 

any effort to clarify Federal jurisdiction under the CWA does not jeopardize these 

characteristics that are so fundamental to the identity of Alaska. 

Today we are here to discuss a bipartisan bill that would not only help to clarify 

jurisdiction and prevent unlawful Federal overreach, but it would also help to ensure that the protection of Alaska’s precious resources remains in the hands of those 

who live near and rely on them. 

Thank you all again for being here this morning and I look forward to hearing 

from our witnesses. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

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

I want to tell you how much I appreciate your holding this hearing today, as you said, on a bipartisan environmental protection 

piece of legislation. 

S. 1140, The Federal Water Quality Protection Act, is legislation 

I introduced, along with Senators Donnelly, Heitkamp, Manchin, 

along with others members of this committee, including you, Mr. 

Chairman, that will protect our Nation’s navigable waterways and 

our pristine wetlands. 

This bill is a testament to the hard work that both sides of the 

aisle have done in achieving an agreement on a comprehensive environmental protection bill. 

I would like to thank Chairman Inhofe and other co-sponsors for 

showing environmental legislation to protection our air, land and 

water can be introduced in this committee in a bipartisan way. 

I think it bodes well for the future and I look forward to continuing to work with our colleagues on both sides of the aisle who 

want to get work done for the American people. 

With regard to this legislation, it is the subject of today’s hearing. I would like to say that our rivers, lakes, wetlands and other 

waterways are among America’s most treasured resources. In my 

home State of Wyoming, we have some of the most beautiful rivers 

in the world such as the Snake River, the Wind River and dozens 

of others. 

The people of Wyoming are devoted to keeping these waterways 

safe and pristine for our children and grandchildren. We understand that there is a right way and a wrong way to do it. It is possible to have reasonable regulations to help preserve our waterways while still allowing them to be used as natural resources. 

Rather than wait for a rule that likely will not represent the interests of farmers, ranchers, families, communities, let us move forward with a bipartisan, Federal Water Quality Protection Act to 

assure the people that we hear and understand their concerns. 

Thank you, Mr. Chairman. I look forward to the testimony. 

Senator SULLIVAN. Thank you, Senator Barrasso. 
4 

I now want to recognize Ranking Member Whitehouse for his 

opening statement. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Once again we are here to consider a Republican attack against 

environmental protection. It is becoming a recurring theme. 

This is an attempt to kill the proposed rule by EPA and the 

Army Corps of Engineers under the Clean Water Act. The so-called 

Federal Water Quality Protection Act, an ironic name if there ever 

was one, would prohibit EPA from finalizing any change to its regulations until it conducts a new 120-day comment period, responds 

to all comments received on the current rulemaking which number 

in the millions, carries out a 180-day consultation with State and 

local governments, conducts analyses under five different statutes 

and Executive Orders and reports to Congress. 

The EPA rule is based on sound, scientific analysis. In my home 

State of Rhode Island, this rule is going to protect our environment 

and support our economy. Small streams and wetlands are vital for 

fish and wildlife and Rhode Island’s vibrant recreational industry. 

The U.S. Fish and Wildlife Service reports that Rhode Island 

residents and non-residents spent $360 million on wildlife recreation, including $130 million on fishing in 2011. More than 402,000 

Rhode Islanders participated in wildlife recreation activities in 

2011. 

Contrary to what my Republican colleagues claim, this rule is 

good economic news in Rhode Island and probably across the Country. That is way the American Sustainable Business Council, which 

represents 200,000 businesses that rely on clean water, supports 

the EPA clean water rule. 

Polling commissioned by the Council found that 89 percent of 

small business owners, including 78 percent of Republicans, favor 

Federal rules like those proposed by the EPA to protect upstream 

headwaters. 

Seventy-one percent of small business owners agree that clean 

water is necessary for jobs and the economy. Sixty-seven percent 

are concerned that water pollution could hurt their business in the 

future. 

I ask unanimous consent that the letter from the Council opposing S. 1140 be entered in the record. 

Senator SULLIVAN. Without objection. 

[The referenced information follows:] 
5 
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Senator WHITEHOUSE. It isn’t just the business industry that is 

ready for the waters of the United States rule, I would also like to 

submit for the record letters signed by the American Fisheries Society, the American Fly Fishing Trade Association, Backcountry 

Hunters and Anglers, Berkley Conservation Institute, Bull Moose 

Sportsmen’s Alliance, Dallas Safari Club, Isaak Walton League of 

America, the National Wildlife Federation, Theodore Roosevelt 

Conservation Partnership and Trout Unlimited opposing this bill 

and further delay. 

Senator SULLIVAN. Without objection. 

[The referenced information follows:] 
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Senator WHITEHOUSE. I also ask unanimous consent to submit 

for the record letters opposing S. 1140 from the Washington Department of Ecology, the National Wildlife Federation, a joint letter 

from American Rivers, BlueGreen Alliance, Clean Water Action, 

Earthjustice, Environment America, League of Conservation Voters, Natural Resources Defense Council, Prairie Rivers Network, 

Sierra Club and the Southern Environmental Law Center, a letter 

from Stroud Water Research Center and a joint letter from 10 scientists and a joint letter from 23 law professors. 

Senator SULLIVAN. Without objection. 

[The referenced information follows:] 
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Senator WHITEHOUSE. Attacks on this rule from my Republican 

colleagues have been extreme and seemingly based more on government conspiracy theories than on the actual rule. Here is just a 

sampling. ‘‘Under this plan, there would be no body of water in 

America, including mud puddles and canals, that would not be at 

risk from job destroying Federal regulation,’’ said Representative 

Doc Hastings. 

House Small Business Committee Chairman Sam Graves claims, 

‘‘Permits may be required for activities such as removing debris 

and vegetation from a ditch, applying pesticides, building a fence 

or pond or discharging pollutants. Republican Representative 

Glenn Thompson of Pennsylvania calls the rule ‘‘a fundamental 

threat to our way of life.’’ 

‘‘What this means in practice,’’ says Representative Tom McClintock, ‘‘is that the Forest Service and the EPA can, under these proposals, require cost prohibitive Federal permits for any proposal 

tangentially affecting virtually any body of water in the United 

States.’’ 

We have even heard from colleagues on this committee that the 

rule will jeopardize fireworks on July 4th. I am confident that 

there will be fireworks on July 4th after this rule goes into effect 

and it will not be a fundamental threat to our way of life. 

The rule maintains the exclusion of prior converted crop land 

meaning over 50 million acres of Clean Water Act permitting is 

still not required, excludes the vast majority of roadside ditches 

and ditches on agricultural land, eliminates jurisdiction over artificially irrigated areas, constructed stock watering ponds, irrigation 

basins and the like, fully preserves the permitting exemptions for 

farming, ranching and forestry and clearly states that the Clean 

Water Act does not apply to groundwater. 

In fact, there are areas where I think rational people could say 

the rule is too weak. 

I hope today we will get back to a discussion of this rule, not of 

the conspiracy theories around it, and that, in my home State of 

Rhode Island, as in many other States, we see these issues are far 

too important to our environment and our economy to be talking 

about imaginary rules. 

Thank you. 

Senator INHOFE [presiding]. Thank you. 

Let me welcome our witnesses. Susan Metzger is the Assistant 

Secretary, Kansas Department of Agriculture. Mark Pifher is Manager, Southern Delivery System, Colorado Springs Utilities. Robert 

Pierce is with the Wetland Training Institute, Inc., Maryland. Andrew Lemley is the Government Affairs Representative, New Belgium Brewing Company. Patrick Parenteau is Professor of Law and 

Senior Counsel, Environmental and Natural Resources Law Clinic, 

Vermont Law School. 

Each of the witness will have 5 minutes for an opening statement. We will start with Susan Metzger. 
41 

STATEMENT OF SUSAN METZGER, ASSISTANT SECRETARY, 

KANSAS DEPARTMENT OF AGRICULTURE 

Ms. METZGER. Thank you, Mr. Chairman. Thank you for the opportunity to appear today to provide our support for S. 1140, The 

Federal Water Quality Protection Act. 

In March, we had the opportunity to appear before the Senate 

Committee on Agriculture, Nutrition and Forestry to share Kansas’ 

perspective on the negative impacts of the Federal rulemaking on 

Waters of the United States on Kansas water management. 

S. 1140 addresses many of those comments and concerns expressed by the States, including Kansas, in response to the draft 

rule. 

With this legislation, the States, as primary implementers of the 

Clean Water Act, will play a more appropriate and necessary role 

in crafting a rule that clearly defines Waters of the United States. 

S. 1140 recognizes the shortcomings of the original engagement 

put forth by the Federal agencies by promoting renewed federalism 

and proper coordination with the States before publication of the 

rule. 

For Kansas, the opportunity for public hearings in different geographic regions, especially in the arid west, is important. Rainfall 

in western Kansas averages 15 inches per year, generating little 

runoff, making connectivity in our western stream network tenuous 

and episodic. 

In requiring consultation with the Governors and State water resource agencies, this bill recognizes the variability and uniqueness 

of each State’s hydrology and invites the Federal agencies to use 

existing State expertise to determine which marginal waters fall 

under Federal jurisdiction. 

S. 1140 clearly establishes groundwater and isolated ponds 

should not be defined as Waters of the United States. Of particular 

significance to Kansas is the exclusion of stream reaches that do 

not contribute flow in a normal year to downstream navigable waters, a typical situation in Western Kansas. 

As part of that policy, the legislation requires the establishment 

of quantifiable measures to determine the volume, duration and 

frequency of normal flows that constitute significant downstream 

contributions. 

We encourage the Federal agencies to consult with western State 

water resource agencies and use their in-house knowledge of water 

availability when establishing these measures. 

In Kansas’ comment letter to the agencies regarding the proposed rule, we identified the increased costs that would be incurred 

by the State with the expansion of waters requiring monitoring and 

assessment. 

The letter also identifies other indirect cost impacts related to a 

rise in third party litigation, increases in mitigation for impacts, 

and changes in permitting conditions for pesticide and land waste 

application. S. 1140 appropriately addresses this concern in requiring an analysis of both direct and indirect costs and evaluating the 

potential for an unfunded mandate. 

Of paramount importance, this bill acknowledges that an exclusion of waters from Federal jurisdiction does not mean such excluded waters lack protection through State regulation and man-
42 

agement. Kansas has a track record of progressive and innovative 

protection of the important waters of the State, whether under 

Federal jurisdiction or not, noting that not all waters are equally 

important. 

As an example of our State approach, Kansas ranks second in 

the Nation in sediment reduction and sixth in the Nation for phosphorous reductions through best management and conservation 

practices. 

Allowing for State administrative discretion without ubiquitous, 

counter-productive Federal oversight, ensures the critical waters of 

the State, as well as the Nation, will be protected. 

The proposed legislation addresses the most significant concerns 

shared by the State of Kansas in response to the proposed rulemaking on Waters of the U.S. 

Thank you for the opportunity to share Kansas’ perspective and 

support for the Federal Water Quality Protection Act. 

[The prepared statement of Ms. Metzger follows:] 
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Senator INHOFE. Thank you, Ms. Metzger. 

You could just as well have been describing Oklahoma as Kansas. 

Mr. Pifher. 

STATEMENT OF MARK PIFHER, MANAGER, SOUTHERN DELIVERY SYSTEM, COLORADO SPRINGS UTILITIES, ON BEHALF 

OF THE NATIONAL WATER RESOURCES ASSOCIATION 

Mr. PIFHER. Thank you. 

Members of the committee, my name is Mark Pifher. I am here 

today to provide you with the perspective of the members of the 

National Water Resources Association on S. 1140. 

NWRA is a nonpartisan, nonprofit federation whose members are 

located in the reclamation States of the West and include agricultural and municipal water providers, State water associations, and 

numerous individuals, including farmers and ranchers. 

Our members provide clean water to millions of individuals, families, businesses and agricultural producers. 

We have historically been ardent supporters of the Federal Clean 

Water Act and its goals. Achievement of the goals will assist in the 

protection of this most valuable resource and assist in protecting 

our source water for our municipalities and farmers and businesses. 

By way of further background, I am the former director of the 

Colorado Water Quality Control Division and a recent member of 

the Colorado Water Quality Control Commission, so I am very familiar with these water quality issues and the importance of the 

Clean Water Act and the Safe Drinking Water Act to our water 

bodies. 

However, that said, we have closely monitored the scope of the 

rulemaking proposed by the agencies, as have many other western 

water interests. We filed extensive comments. 

As those responsible for providing the water supplies, we believe 

it is of vital importance to ensure not only that water quality is 

protected, but also that we have the ability to build the infrastructure necessary to meet water demands without undue impediments 

that could be raised by the rule as initially proposed. 

We acknowledge, based on agency comments given after the rulemaking closed, that there may be some substantive changes to the 

final version of the rule. We hope that those changes are responsive to some of our express concerns. 

We would thank the agencies for their diligent work in this regard. They have been open to receiving our input. That said, it is 

unfortunate that this proposal has proven to be so controversial 

from the outset as it need not be because we all share the same 

goals. 

One factor at the root of the controversy was the failure of the 

agencies to timely initiate consultation with State and local governments and others over the draft rule. The Federal Water Quality 

Protection Act would assist in rectifying this failure by requiring 

expanded outreach efforts. 

It is the State and local governments and individuals that shoulder much of the cost burden and expense associated with issuing 

the 401 water quality certifications at the State level, the costs of 
47 

meeting project permitting requirements under Sections 402 and 

404 of the Act, and the expense associated with the accompanying 

NEPA reviews once you trigger Federal jurisdiction. It is very important that we get this right. 

In particular, we think the agencies fail to recognize unique geologic, hydrologic, and climatic differences across this Country, with 

particular reference to the arid regions. In that regard, we have 

many water bodies that are effluent dependent and effluent dominated, dry arroyos, isolated ponds, artificial conveyance systems to 

move water to places of need, including ditches, and geographically 

large basins. 

I would refer you to the pictures we have attached to my testimony of areas in the arid West that are typical that would probably be included under the new rulemaking that would make it 

very difficult, frankly, for us to fulfill our individual missions. 

Under the rule, adjacent waters and tributaries would all be jurisdictional by rule. You would not have an opportunity to rebut 

that presumption of jurisdiction. That would be very detrimental to 

the arid West. 

Another shortcoming of the initial proposal was the lack of definitional clarity relative to what is a significant nexus, the word 

‘‘significant’’ is not defined, and a failure to focus on the need for 

water quality impacts, not just hydrologic impacts or other unrelated impacts. We think S. 1140 would rectify those shortcomings. 

Also related to the above is a scope of work that was given to 

the scientists under the Connectivity Report. We think it is undeniable that almost all waters, from rain to evaporation to surface 

flow to subsurface flow are connected in some manner. 

That does not answer the question of whether the connection is 

significant or whether water quality would be impacted. We think 

it is imperative to clarify the scope of Federal jurisdiction and to 

meet the objectives shared by all. 

That is especially true in the West where we have a time of 

drought, floods and fires. The recent fires in Arizona, the drought 

in California, the unprecedented 2013 floods on the South Platte 

River in Colorado all underscore the need to build, repair and replace more basin infrastructure and to do it in a very prompt manner without undue restrictions. 

This includes reuse facilities; reservoirs, pump-back projects, recycle and reuse facilities, reverse osmosis treatment and groundwater recharge but we cannot do that if our hands are tied. 

NWRA supports S. 1140 and looks forward to working with the 

committee and others, including the agencies, in an attempt to get 

it right the next time through. 

Thank you. 

[The prepared statement of Mr. Pifher follows:] 
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Senator SULLIVAN [presiding]. Thank you, Mr. Pifher. 

Mr. Pierce, please. 

STATEMENT OF ROBERT PIERCE, WETLAND TRAINING 

INSTITUTE, INC. 

Mr. PIERCE. Thank you, Mr. Chairman and members of the committee, for this opportunity. 

I have watched the ever continuing geographical expansion of 

regulation. I fully support the goals of S. 1140 to restore the proper 

relationship between the Federal and State authorities as specified 

in Section 101(b). 

If EPA’s expansive upper limit of Federal jurisdiction is accurate, 

then Congress did not need an expansive definition of point source 

in the Clean Water Act including pipes, ditches and channels, all 

of which the EPA has included under the definition of Waters of 

the U.S. already. 

Within weeks of the Rapanos decisions, many streets in D.C. 

were flooded by a large storm. Some EPA facilities were flooded as 

were parts of the National Archives. It sounds like Waters of the 

U.S. to me. 

In 1979, then-Attorney General Civilletti opined that Congress 

intended EPA to have the ultimate authority to determine the 

reach of navigable waters. Since that time, the Corps has had no 

programmatic authority to determine the geographic limits of Section 404. 

From 2003 to 2006, I studied flow data from streams in Maricopa 

County, Arizona. For one project, the Corps told the local delineator that ephemeral channels in the desert that were three to five 

feet wide should be flagged as jurisdictional. Later, the EPA challenged the Corps and said the channels that were only six inches 

wide should be flagged. 

My analysis revealed that on average streams flowed 1.5 times 

per year for an average cumulative total of 22.9 hours per year, not 

even 1 day. How do you define an ordinary high water mark when 

the ordinary condition of a stream is dry? 

In 2014, I testified in the Los Angeles Federal Court in the criminal proceedings against John Appel, charged with discharging fill 

below the ordinary high water mark into the Ventura River. The 

EPA and DOJ based their case on a non-EPA technical report that 

claimed in the arid West, the ordinary high water mark extended 

to the outer limits of the active flood plain. 

In fact, all of Mr. Appel’s activities were conducted well away 

from the true ordinary high water mark as defined in regulation. 

The jury found him not guilty after just 45 minutes deliberation. 

Groundwater is regulated under the Safe Drinking Water Act. 

Yet, the regional wetland delineation supplements define a water 

table that is 12 inches below the surface as equivalent to the surface. 

Worse, the EPA Connectivity Study allows that water as much 

as tens of meters below the surface is shallow enough to represent 

a surface connection. Rather than a technical study focused on 

connectivity, what was needed was a study on what constitutes significant in the context of significant nexus. 
59 

On one occasion, I followed flow on the Santa Cruz River in Arizona in a helicopter. I observed 23 million gallons per day of treated sewage effluent flowing into the river at Tucson and followed 

the flow until it completely dissipated many miles from its morphological confluence with the Gila River which is still over 200 miles 

from the Colorado River. 

S. 1140 is a good start and will rectify some of the more egregious aspects of the proposed rule and restore balance to a program 

that has spun out of control. However, I think that it should go further. 

S. 1140 should define ordinary high water mark on a quantitative basis. There are multiple methods existing today for determining flow and the ordinary water mark in streams. 

While EPA has declared absolutely no uplands located in riparian areas in flood plains can ever be Waters of the U.S., it also endorsed the same report that justified prosecution of John Appel as 

a good example of local guidance on interpreting ordinary and high 

water marks. S. 1140 should clarify that streams crossing tribal 

land boundaries in a single State are not interstate waters under 

33 CFR 328.382. 

Activities permitted under Section 404 generally are not wasting 

activities. Nobody discharges fill so that it will wash away. They 

stabilize it so that it will remain in place, completely intact in perpetuity. 

I really think what is needed is a Water Resources Conservation 

Act. Conservation is wise use and the Corps has been broker for 

it for over 100 years. I recognize that this is beyond the scope of 

S. 1140. 

If I had the authority, I would excise the Corps’ 404 permitting 

role from the Clean Water Act and put it into a Water Resource 

Conservation Act. This would cause no increase in pollution and 

EPA could have an advisory role like other agencies and continue 

to enforce unpermitted discharges. 

Finally, I would not provide dual agency control of different aspects of the program as is in effect with Section 404 of the Clean 

Water Act. S. 1140 provides a good starting point for straightening 

out the broken Section 404 program. 

Congress needs to compartmentalize responsibilities between the 

States, tribes and the Federal Government for the upper regions of 

water courses where the impact on navigable waters of the U.S. 

under the commerce clause is so tenuous as to not warrant usurpation of State sovereignty. 

I will be happy to try and answer any questions you might have. 

[The prepared statement of Mr. Pierce follows:] 
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Senator SULLIVAN. Thank you, Mr. Pierce. 

Professor Parenteau, please. 

STATEMENT OF PATRICK PARENTEAU, PROFESSOR OF LAW, 

SENIOR COUNSEL, ENVIRONMENTAL AND NATURAL RESOURCES LAW CLINIC, VERMONT LAW SCHOOL 

Mr. PARENTEAU. Thank you, Mr. Chairman and members of the 

committee. I appreciate the opportunity to be here. 

I appear here in my own individual capacity. I am not here representing any particular interest. I do have over 40 years of experience with the Clean Water Act. 

I served as senior counsel with the Environmental Protection 

Agency for the New England region for a number of years during 

the Reagan administration. I was also the head of the Vermont Department of Environmental Conservation with responsibility for 

implementing the Clean Water Act at the State level. I represented 

business interests and I represented environmental interests. 

I have a 360-degree view of how the Clean Water Act has evolved 

over the years and how it is currently operating. 

With due respect to Senator Barrasso and the sponsors of this 

bill, my message today is simple and unfortunately, fairly direct. 

I think this is a bad bill. I think it is based on bad science, bad 

law and bad policy. I think it is going to make a difficult and unfortunate situation even worse. 

I think it is going to confuse what is already a very confused jurisdictional question under the Clean Water Act. It is going to increase conflict and I suppose, from the standpoint of an environmental law professor, some good news is it is certainly going to create jobs for lawyers for a very long time to come, years, if not decades. I say that knowingly. 

We are still litigating some of the fundamental questions of the 

text of the 1972 Act, 45 years after the law passed. It is no exaggeration to say we are looking, if this bill passes, at decades of litigation to try to untangle the difficulties that it is creating. 

First, as to the science, the best available science is represented 

in EPA’s Connectivity Study. This was a blue ribbon panel of some 

of the finest aquatic scientists in the Nation appointed under the 

auspices of the Scientific Advisory Board, which this body created 

to oversee EPA’s rulemakings. 

Their study conclusively shows, on the basis of all the existing 

literature, some 1,200 peer-reviewed studies, the critical importance of headwater streams and associated wetlands regardless of 

size, regardless of location on the landscape in an integrated system of water quality maintenance and biological integrity that supports traditionally navigable waters, rivers, lakes and estuaries. 

That science is the best science there is. The science is always 

looking for better science but as of today, that study, which has 

been rigorously reviewed, represents the best available science. 

There is no science that this bill is based on. This bill uses terms 

that have no grounding in science. The concept of isolated waters, 

looking at waters in isolation without regard to their interconnection within a system that functions together is not scientific. There 

are many other problems with terms used in this bill that time 

does not permit me to discuss but I will refer the subcommittee to 
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my testimony for more detail. The science is clearly on the side of 

the approach that EPA is taking. 

Second is law. I continually hear that EPA is expanding the 

scope of Federal jurisdiction under the Clean Water Act. That is 

flatly wrong. Before SWANCC, before Rapanos, the considered 

judgment of all the hundreds of courts and hundreds of judges that 

looked at the question was that the entire tributary system of the 

Nation’s navigable waters was subject to the jurisdiction of the 

Clean Water Act. That is all the way to the U.S. Supreme Court. 

The most outstanding example of this is the United States v. 

Deaton in the Fourth Circuit that was issued after the SWANCC 

decision notably in which a very conservative panel, two of which 

were on President Reagan’s short list for the Supreme Court, ruled 

unequivocally that the Corps had jurisdiction over non-navigable 

tributaries and associated wetlands. The law, this rule, is reducing 

dramatically the scope of the jurisdiction that existed prior to these 

two troublesome decisions. 

As to policy, I hear a lot of talk about the States being against 

this rule. It depends on who you ask in a State. I was in a State 

that had tension between the agriculture agency and the water 

quality agency. You get different answers from different agencies 

depending on the type of question you ask. 

When the Rapanos case was before the Supreme Court, over 30 

States filed an amicus brief strongly supporting the extension of 

Federal jurisdiction over non-navigable tributaries and associated 

wetlands for the simple reason that downstream States are powerless to protect their water quality without the Clean Water Act, 

powerless. 

The U.S. Supreme Court has eliminated Federal common law for 

water quality. There is no other recourse for a downstream State 

to protect its water quality other than through the Clean Water 

Act. 

I would be happy to answer your questions. 

[The prepared statement of Mr. Parenteau follows:] 
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Senator SULLIVAN. Thank you, Professor Parenteau. 

Mr. Lemley, please. 

STATEMENT OF ANDREW LEMLEY, GOVERNMENT AFFAIRS 

REPRESENTATIVE, NEW BELGIUM BREWING COMPANY 

Mr. LEMLEY. Thank you, Chairman Sullivan, Ranking Member 

Whitehouse, and members of the committee. 

My name is Andrew Lemley. It is an honor and a privilege to be 

before you today representing my 630 co-workers and fellow employee owners of New Belgium Brewing Company in Fort Collins, 

Colorado and Asheville, North Carolina. 

I am here today for one reason and to deliver one message, which 

is that our brewery and our communities depend on clean water. 

Beer, after all, is over 90 percent water. If something happens to 

our source of water, the negative effect on our business is almost 

unthinkable. 

Colorado breweries in 2013 contributed $249 million in direct 

value to our economy and provided more than 5,000 jobs. Each of 

our fellow brewers is equally dependent on a clean, reliable water 

supply. 

Nationally, there are more than 3,400 craft breweries directly 

employing over 110,000 people. These jobs cannot be outsourced 

and they range from production technicians to brewers to microbiologists and chemists to sales and marketing, human resources, 

sales and marketing professionals and everything in between. 

These are good jobs at growing companies. 

We rely on responsible regulations that limit pollution and protect water at its source for our growth. Our journey in crafting 

world class beers and running a successful business shows that we 

depend on these regulations. 

Over the past 23 years we have learned that when smart regulation exists for all and when clean water is available for everyone, 

business thrives. We have grown from the basement of our cofounders house in Fort Collins, Colorado to our 900,000-barrel-peryear brewery in Fort Collins. We are also in the midst of building 

a new 500,000 barrel brewery in Asheville, North Carolina. 

We have been able to grow from 2 to over 630 co-workers in part 

due to the protections that the EPA and Army Corps of Engineers 

guarantee for our water supply. Clarity in regulation and the protection of natural resources are keys to economic development. 

That is why we support the proposed Clean Water Rule from EPA. 

It will restore clear safeguards against unregulated pollution and 

destruction for nearly 2 million miles of streams and tens of millions of acres of wetlands in the continental U.S. Bringing these 

streams and wetlands under the umbrella of the Clean Water Act 

will help protect the drinking water for one in three Americans. 

These water bodies do more than just that. In addition to supplying drinking water, these are the streams and wetlands that 

communities rely on to prevent flooding, filter pollution, and provide critical fish and wildlife habitat. They provide these valuable 

services for free. 

In fact, the cost-benefit analysis done for the Clean Water Rule 

estimates that it would generate between $388 million and $514 

million per year in economic benefits, far exceeding expected costs. 
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That is one of the reasons the American Sustainable Business 

Council so strongly supports it. 

As Ranking Member Whitehouse mentioned, ASBC released a 

poll recently that showed that over 80 percent of small business 

owners favor Federal rules to protect upstream headwaters as proposed in the Clean Water Rule. I should also note that New Belgium is a member of the American Sustainable Business Council. 

More than 1 million Americans submitted comments on the draft 

rule, with an estimated 87 percent in support. New Belgium submitted supportive comments, as did many of our brewer partners, 

along with sportsmen, religious leaders, public health advocates 

and environmental organizations. 

I understand there have been many claims about what the Clean 

Water Rule will and will not do, especially when it comes to agriculture. It was our great honor to host EPA Administrator Gina 

McCarthy recently at our Craft Brewers Conference in Portland, 

our industry’s annual gathering. More than 11,000 brewers and 

suppliers attended. 

Administrator McCarthy was very clear that nothing in the 

Clean Water Rule changes the exemptions and exclusions agricultural producers have received since the Clean Water Act was 

passed in 1972. She assured the brewers in attendance that nothing would change for their agricultural producers after the Clean 

Water Rule is finalized. 

That is critically important to us, because while beer may be 90 

percent water, it is our agricultural partners who provide the raw 

materials that supply everything else, from barley and hops to 

spices, fruits and other ingredients. 

We believe in being a good neighbor because we know that our 

success is intrinsically linked to the success of our agricultural 

partners, beer lovers and fellow brewers. Just as we are connected 

to our neighbors, science shows how small streams and wetlands 

are linked to downstream water quality. 

The EPA and Army Corps of Engineers proposed Waters of the 

U.S. Rule is extensively vetted and has taken a significant amount 

of time to develop. To stop the process at this point after the agencies have engaged in an extensive and transparent process to elicit 

stakeholder input would be an unnecessary delay in the finalization of the rule. 

S. 1140 would continue the current state of confusion around 

Clean Water Act jurisdiction and would leave our waterways open 

to risk for pollution and destruction while requiring EPA and the 

Army Corps of Engineers to do what they have already ably and 

thoroughly accomplished. 

Thank you. 

[The prepared statement of Mr. Lemley follows:] 
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Senator SULLIVAN. Thank you for that outstanding testimony 

from all our witnesses. We will now turn to a period of some questions. 

I want to start by addressing a few comments from Ranking 

Member Whitehouse. I think it is important for all of us to recognize. 

We certainly all want clean water. As I mentioned, my State 

probably has the cleanest water of anyplace in the world. We are 

recognized for that. The State does a great job of protecting that. 

We care more about our clean water and clean environment than 

any bureaucrat from Washington, DC. and the EPA. I think a lot 

of the States feel the same way. 

Just to remind everyone here, there were some comments about 

Republicans wanting to undermine the Clean Water Act. This is a 

bipartisan bill. I think a lot of members on both sides of the aisle 

recognize that there are some serious issues with this. 

We can all trot out that several different groups oppose or support this bill or the regulation but it is pretty dramatic when threefifths of the States of the United States have serious problems with 

this Federal regulation. 

Mr. Lemley, you mentioned a million comments. I think you 

might want to take a look at the New York Times article today on 

the front page and how those comments are coming about. I think 

the EPA has a lot of questions they need to answer. 

Let me start with Ms. Metzger. How important to Kansas is 

clean water and what does the State do in terms of focusing your 

State efforts on clean water? 

Ms. METZGER. Thank you, Mr. Chairman. 

I would echo that a State priority for clean water is similar as 

you stated. It is a high priority for our State. I appreciate that the 

Act recognizes that just because waters might lack Federal jurisdiction from protection, it does not lack the protection from State regulations. 

Perhaps even more important in Kansas is the cooperative nonregulatory partnership amongst our landowners. We have a really 

robust program in Kansas that relies on stakeholder feedback and 

stakeholder cooperation for voluntary approaches to addressing 

water quality approaches. 

That approach has been very successful. We call it our Watershed Restoration and Protection Strategy. It takes funding from 

EPA and matches that with State and local dollars. It allows us to 

put in really robust conservation practices. It allows us to achieve 

those types of successes I noted, being second in the Nation in sediment reduction and sixth in the Nation in phosphorous reduction. 

Senator SULLIVAN. Let me ask both you and Mr. Pifher, in terms 

of consultation, when we held field hearings in Alaska, the universal kind of concern, almost universal, was that there was no serious consultation with key stakeholders, whether States or local 

municipalities. 

Can you two address the issue? Do you think there was significant, substantial or adequate consultation by the EPA with regard 

to this rule? 

Ms. METZGER. For Kansas, we felt that the consultation fell short 

of what was expected in Executive Order 13132. Instead, the State 
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comments were just relegated to some of those million comment 

letters and really diluted our feedback. 

Mr. PIFHER. In Colorado, we felt the same, that the consultation 

prior to the issuance of the rule was far short of what it should 

have been because we believe we could have assisted the agencies 

in crafting a rule that would have proven not so controversial. 

Senator SULLIVAN. Thank you. 

I also want to go to the issue of whether this is an expansion of 

the Clean Water Act’s jurisdiction. I believe Professor Parenteau 

that you said it was a shrinking of the jurisdiction. I think even 

the EPA admits that it is an expansion. They say it is about 3 percent. 

Let me ask a purely legal question. Does the EPA have the authority as a regulatory agency to unilaterally expand the jurisdiction of the Clean Water Act or is that only the realm and the authority of Congress? 

Mr. PIFHER. The EPA is not expanding the jurisdiction. 

Senator SULLIVAN. Could you just answer the question I asked? 

Mr. PARENTEAU. The EPA is not expanding the jurisdiction. 

Senator SULLIVAN. That is not the question I posed. 

Mr. PARENTEAU. They are under an order, basically. 

Senator SULLIVAN. Will you answer the question I posed? We do 

not have a lot of time here. Does the EPA have the authority to 

unilaterally expand the jurisdiction of the Clean Water Act or is 

that only the realm of the Congress? 

Mr. WHITEHOUSE. Mr. Chairman, I think he is entitled to answer 

your question as he sees fit. 

Mr. PARENTEAU. The answer is EPA has the authority to interpret the geographic scope of the Clean Water Act consistent with 

the way the courts, including the Supreme Court, have interpreted 

the language of the Act. That is exactly what EPA is doing. 

Senator SULLIVAN. Ms. Metzger, do you have an answer to that? 

Ms. METZGER. I can give the example of how we interpret the expansion under the proposed rule for Kansas. 

Currently, what is approved by EPA as our Waters of the U.S. 

in the absence of the proposed rule is what we consider those waters with designated uses that are by State statute put into our 

surface water quality standards. That encompasses a little better 

than 30,000 stream miles in Kansas. 

As we interpret the blanket definition of tributary in the proposed rule, that would result in about 174,000 stream miles. That 

is a 460 percent increase. 

Senator SULLIVAN. Thank you. 

Ranking Member Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. 

First of all, to respond to your comments, it appears to me that 

every single time we have a hearing in this committee, at least 

since John Warner, the Republican from Virginia, left, every single 

time every Republican effort is antagonistic to the environmental 

protection involved and every single Republican member is opposed 

to the environmental protection involved. 

It happens every time and it is a continuing theme. I stand by 

my remarks. It is unfortunate and it is very inconsistent with the 
109 

tradition and history of your party but it is the way we are right 

now. 

I have a statement from Ranking Member Boxer. I would ask 

unanimous consent that her statement be made a part of the 

record. 

Senator SULLIVAN. Without objection. 

[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Today, the Subcommittee on Fisheries, Water, and Wildlife is meeting to consider 

legislation that would undermine one of our nation’s landmark laws—the Clean 

Water Act—and roll back protections for small streams and wetlands that provide 

drinking water to roughly 1 in 3 Americans—or 117 million people. 

Decades ago, the United States experienced widespread damage and degradation 

to our environment—the Cuyahoga River in Cleveland, Ohio, was on fire and our 

lakes were dying from pollution. The American people demanded action, and in 1972 

Congress passed the Clean Water Act by an overwhelming bipartisan majority. 

Unfortunately, the legislation before us today, S. 1140, would take us in the 

wrong direction by removing protections and creating more confusion and uncertainty about which waters are protected. 

Recent events in Toledo, Ohio, remind us of that our drinking water remains vulnerable to pollution. Half a million residents in this major American city went without drinking water for days because nutrient pollution washed into Lake Erie, causing toxic algae to bloom. 

If we are serious about ensuring that the waterways our children and families 

rely on for drinking water are free from pollution, we must uphold Clean Water Act 

protections that have existed for decades. 

In response to calls from industry, environmental organizations, and 30 of my 

Senate Republican colleagues who requested a full rulemaking to clarify the scope 

of the Clean Water Act, the Obama administration proposed a rule that defines 

which waters are protected under the Act. 

Defending our waterways from pollution used to be a bipartisan issue. And for 

decades, members of both parties understood that wetlands, lakes, and small 

streams are interconnected, and water pollution must be controlled at its source. 

William Ruckelshaus, EPA Administrator under Nixon and Reagan, highlighted 

this understanding when he wrote, ‘‘Broad Clean Water Act jurisdiction is not only 

necessary to clean up the Nation’s waters. It is necessary to ensure that the responsibility for maintaining and restoring clean water is shared equitably throughout 

the watershed and from state to state.’’ 

S. 1140 ignores the long and successful history of the Clean Water Act. In fact, 

the bill would change the goal of the Clean Water Act from restoring the ‘‘chemical, 

physical, and biological integrity of the Nation’s waters’’ to instead focus on protecting ‘‘traditional navigable waters’’. When it originally passed the Clean Water 

Act, Congress rejected the idea that the Act is limited to navigable waters and the 

courts have consistently said the Act is much broader. Furthermore, this bill arbitrarily excludes large categories of water bodies that are important for water quality 

and provide drinking water to millions of Americans. 

The Obama administration’s efforts are about protecting drinking water for American families and businesses, and the process it has undertaken has been open and 

inclusive. More than 1 million comments were received during a comment period 

that lasted over 200 days, and over 400 outreach meetings with stakeholders and 

State and local governments were conducted. 

The bill before us would waste millions of taxpayer dollars by requiring EPA to 

repeat robust outreach efforts that have already been carried out. This is unnecessary and wasteful and does nothing to ensure American families and businesses 

have clean water. 

Instead of advancing a bill that would allow our nation’s waterways to become 

more polluted, we should listen to the wide variety of stakeholders that support the 

proposed clean water rule. A poll released yesterday shows that 78 percent think 

Congress should allow the rule to move forward. In addition, a July 2014 poll found 

that 80 percent of small business owners support protections for upstream headwaters and wetlands in the proposed clean water rule. 
110 

It is time to restore much-needed certainty, consistency, and effectiveness to the 

Clean Water Act. S. 1140 does just the opposite. It would result in further delay, 

more uncertainty, and less protection for our nation’s waterways. 

Senator WHITEHOUSE. Close on 5 years ago, Rhode Island had 

very significant flooding. Climate change is changing the rain patterns in the northeast. The heavy rain bursts are dramatically increasing. I think it is something like 70-some percent. 

I remember during the floods going around by helicopter and flying over Narragansett Bay. You could see the flooded rivers and all 

of the refuse, all of the mud, all of the waste, everything that had 

been pushed out into what is ordinarily a clean bay because of 

those storms. It did a lot of damage. 

It strikes me that the issue we should be looking at here is not 

whether a stream is intermittent or not, in fact I think as Mr. 

Parenteau pointed out, Justice Scalia, who is hardly a liberal, in 

the Rapanos decision said that seasonal tributaries are covered by 

this statute. 

I think that question is kind of over. Is it foreseeable that these 

tributaries will deliver significant amounts of waste, pollution, 

refuse or other things into the waters we all use is the real question. 

If it is foreseeable that it will happen, then why is it not logical 

that we would want to protect downstream users from upstream 

waste? 

Mr. Parenteau, you talked a bit about downstream States. Rhode 

Island is a downstream State. Will you elaborate a bit on what you 

mean by downstream States? 

Mr. PARENTEAU. Outside of perhaps Alaska and Hawaii, we are 

all downstream. That is the point. The Supreme Court, years ago, 

ruled that States no longer have authority under the Federal common law to go to the U.S. Supreme Court to resolve interstate 

water pollution control problems. 

The Supreme Court said the States’ only remedy is through the 

Clean Water Act. That is what the court ruled. The capacity to the 

1972 Clean Water Act preempted Federal common law, left the 

downstream States with no other remedy other than whatever exists under the Clean Water Act. That is the state of the law right 

now. 

Senator WHITEHOUSE. Without this, we have nothing? 

Mr. PARENTEAU. That is right. 

Senator WHITEHOUSE. Ms. Metzger, you are responsible for activities in the State of Kansas. This is a hypothetical question. If 

you knew that for 3 weeks a year a big rain was going to come and 

it was going to flood through what is otherwise a dry, intermittent 

creek bed and it was going to wash whatever was in there down 

into waters that your Kansans depend on to be clean and available 

to them, would you think that was important to regulate? 

Ms. METZGER. Those waters, if deemed necessary by the State 

are protected by our State regulations, not by Federal regulation. 

We appreciate that S. 1140 goes a little bit further and then says, 

then let us establish those quantifiable measures for determining 

those flows that would have Federal jurisdiction. 

Senator WHITEHOUSE. Even where you can foresee that waste, 

pollution, refuse and other things would be washing into the water-
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ways of Kansas, you would still say, no, that is not something that 

the Clean Water Act should regulate? 

Ms. METZGER. We feel they are adequately protected with State 

regulation. 

Senator WHITEHOUSE. OK. Good luck with the Supreme Court on 

that. 

Senator SULLIVAN. I think it is a legitimate answer, myself. 

Senator WHITEHOUSE. It is just legally wrong. 

Senator SULLIVAN. We will see. 

Senator Barrasso. 

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

Ms. Metzger, I would like to read you a front page story today 

in the New York Times entitled, Critics Hear EPA’s Voice in Public 

Comments. 

The story says, ‘‘Late last year, the EPA sponsored a drive on 

Facebook and Twitter to promote its proposed Clean Water Rule in 

conjunction with the Sierra Club. At the same time, Organizing for 

Action, a grassroots group with deep ties to Mr. Obama, was also 

pushing the rule. They urged the public to flood the agency with 

positive comments to counter opposition from farming and industry 

groups.’’ 

This is important. As the article implies, it says ‘‘The Justice Department, in a series of legal opinions going back nearly three decades, has told Federal agencies they should not engage in substantial grassroots lobbying defined as communications by executive officials directed to members of the public at large or particular segments of the public intended to persuade them in turn to communicate with their elected representatives on some issue of concern 

to the executive branch of government.’’ 

To me it sounds like the EPA is, at worst, violating the law, but 

if not, at least violating the spirit of the law. 

My question is, do you believe the EPA is serious about actually 

considering the opinions of people from Kansas, from Oklahoma, 

from Alaska, from Wyoming in drafting this rule if they are actively orchestrating a public relations campaign to support the rule 

they have drafted? 

Ms. METZGER. I can make a couple responses to that. First, I 

would agree with Mr. Pifher’s comments earlier that had EPA fully 

engaged the States early on, I am not sure we would be here today. 

To Mr. Parenteau’s comments that the State comments from 

Kansas do not represent all of the different perspectives and different agencies, our letter to the EPA and the Army Corps of Engineers was a joint letter from Governor Sam Brownback, the Department of Agriculture and our Department of Health and Environment, as well as our Wildlife, Parks and Tourism Divisions, collectively representing all of our different State agencies with the 

same feedback to the EPA. 

At this point, we appreciate that S. 1140 recognizes that fell 

short of true coordination and consultation with the States. If EPA 

really felt that was the right step forward and really respected our 

input in the process, they would not be fearful of S. 1140 and an 

additional 120-day comment period. 

Senator BARRASSO. Thank you. 
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Mr. Pifher, you mentioned in your written testimony the drought 

in the West means that States need to construct infrastructure 

such as new reservoirs and water pipelines to address the need for 

more water. 

Given that drought is a fact of life in many western States, do 

you believe the EPA’s proposed Waters of the U.S. Rule will needlessly slow down much needed, long term and short term water development projects for these States? 

Mr. PIFHER. I think it very well may have that effect, unfortunately. Let me give you two observations. 

First, I have been associated with the construction of probably 

two of the largest infrastructure projects in Colorado, water delivery projects, certainly in the last few decades. One was Aurora’s 

Prairie Waters Project, a $600 million pipeline pump station and 

treatment plant facility. The second was a current southern delivery system being constructed by Colorado Springs utilities at a cost 

of over $800 million. 

The former did not need, because it worked hand in hand with 

the Corps of Engineers, a Section 404 permit and individual permit 

and it never triggered NEPA. We went from conceptual design to 

construction to ribbon cutting in 5 years with mitigation costs of 

about $1.5 million. 

Southern delivery, on the other hand, could not avoid Section 

404. It went through the NEPA process and it took over a decade, 

over $30 million investment in the permitting process and is going 

to be tens of millions of dollars of additional mitigation. That, in 

and of itself, is a disincentive. 

The other point I would like to make is if you decide to Federalize through rulemaking, what I would consider the arroyos, the 

washes, the very intermittent, as in once a decade, type of stream 

system in the West, you are going to force water providers, who 

need that additional storage for times of drought, to look to the 

main stem. 

What is the difference if you trigger Section 404 and NEPA on 

the isolated waters and trigger it on the main stem? You might as 

well increase the certainty of yield and increase the reliability of 

your project and go on the main stem where no one wants to be 

really because the environmental impacts could be more damaging. 

Senator BARRASO. Thank you. 

Mr. Lemley, you referenced EPA Administrator McCarthy. You 

said she spoke before the Craft Brewers conference and said, according to your written testimony, that nothing in the clean water 

rules change the exemptions and exclusions agricultural producers 

have received since the Clean Water Act was passed in 1972. 

If this proposed rule is so good for American agriculture, the following groups are supporting my bill: the American Farm Bureau, 

Agriculture Retailers Association, Soy Bean Association, Sugar Alliance, the Colorado Pork Producers, Corn Refiners, Milk Producers, 

National Association of Wheat Growers, Beef Association, Chicken 

Council, Corn Growers, Council of Farmer Cooperatives, the National Turkey Federation, U.S. Poultry, the United Egg Producers, 

and U.S. Rice Foundation. 

Mr. Chairman, I have a whole list of people supporting this. 

Could I please put that into the record? 
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Senator SULLIVAN. Without objection. 

[The referenced information follows:] 
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Senator BARRASSO. I can go on and on but I would just say if this 

proposed rule is so good for agriculture and all of these groups that 

represent this broad spectrum of American agricultural products 

are all opposed to the proposed rule, they support this legislation, 

why are they opposed to this proposed rule then if it is so good for 

them? 

Mr. LEMLEY. Senator, I cannot speak to what their objections to 

the rule specifically or obviously. I think that is why EPA did have 

an extended comment period. I think that is why we are waiting 

for the final rule to come out to see how EPA will respond to their 

concerns. 

Senator BARRASSO. I would just say, Mr. Chairman, it looks like 

EPA is really trying to game the system with their comment period 

as the front page of the New York Times today explains. 

Thank you, Mr. Chairman. 

Senator SULLIVAN. Thank you, Senator Barrasso. 

Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. I appreciate you 

holding this very important hearing today. 

Mr. Pierce, in your testimony, you note that the proposed rule 

considers any water tens of meters below the surface or even lower 

to be a connection that creates Federal control over isolated water. 

What would this expansion mean in a State like Nebraska where 

we have areas of relatively shallow groundwater? Do you believe 

that S. 1140 will help prevent EPA and the Corps from controlling 

isolated water or the ephemeral streams based on those groundwater connections? 

Mr. PIERCE. I have not seen the latest draft of the rule that is 

being talked about as being more expansive than what was proposed. The tens of meters below the ground was the EPA’s 

Connectivity Study which they considered to be close enough to the 

surface for a connection. 

A place like Nebraska, there are many other States where 

groundwater remains quite close to the ground surface during the 

years, could be in jeopardy of having a much broader than currently existing jurisdictional review by the Corps and EPA based 

on an expansion by EPA if they allow connectivity. 

They have already taken things like clearly non-jurisdictional 

swales and they have connected wetlands. This was done about 6 

months after the SWANCC court case. They say that a molecule of 

water could get from a wetland half a mile away, say in California, 

down a non-jurisdictional swale, therefore, that is connected. 

In fact, the entire planet is connected hydrologically, so we cannot argue that. The question is, according to the Supreme Court, 

whether it is a significant connection or not. That is what this 

study should have dealt with. 

As far as my reading of the EPA Connectivity Study, the only 

thing in ephemeral waters that they really addressed that was 

showed as a connection, I did not see it as a connection, they said 

some ephemeral waters will recharge groundwater. 

I looked at every place where they talked about ephemeral waters in that proposed study and that was it. That, to me, is not a 

connection to navigable waters of the U.S. 

Senator FISCHER. Thank you. 
117 

We have deep concerns with that in the State of Nebraska where 

we sit over the Ogallala Aquifer. At least twice a year in the spring 

and the fall, we have groundwater that rises and truly becomes 

surface water for a period of time before it then recedes again. I 

thank you for your perspective on that. 

Mr. Pifher, in your testimony, you discussed the failure of the 

EPA and the Corps to consult with State and local governments, 

even though they bear the burden of making the regulatory process 

work on a daily basis. 

I was able to chair a field hearing in the State of Nebraska on 

the proposed rule. I would note that it was brought out at that 

hearing that according to the EPA’s numbers, 58 percent of substantive comments of that almost 1 million comments were opposed 

to the rule. 

It was also brought out at that hearing by our attorney general’s 

office in the State of Nebraska how the rule infringes on our State’s 

authority to protect and manage our resources. Water in Nebraska, 

whether it is groundwater or surface water, is owned by the people 

of Nebraska. It is a State resource. 

This uncertainty now that we are facing over not just control but 

also cost helped to develop in Nebraska a very broad coalition opposed to this rule because of that uncertainty, whether it is ag 

groups, home builders, cities, or counties. 

Can you tell me how you think the rule would impact, in Colorado, your State and local programs? At the hearing, we heard 

about the cost to taxpayers, the cost to citizens, whether a city or 

county, that they would face by this Federal overreach. Could you 

address that for Colorado? 

Mr. PIFHER. Yes, Senator. 

The concerns I have heard in Colorado sort of run the whole 

gamut among water suppliers, waste water dischargers, how need 

Section 402 permits, and also those responsible for stormwater, 

often the public utilities along with their water service duties. 

The concern relates to the infrastructure they feel they need to 

construct in the future, be they water delivery lines so they have 

redundancy in time of drought or newt storage vessels so they can 

store water in times of plenty for times where the water supply is 

lacking. 

Small towns with lagoon systems out on the plains of Colorado, 

for example, may be discharging to a dry arroyo, in fact. Historically, they did not need a Section 402 permit to discharge but 

under the new proposal could. It is a huge burden for a small town 

to retrofit, if you will, their wastewater treatment facilities. 

Stormwater, even EPA is a real advocate for green infrastructure. I think we all are. We want retention, detention, we want 

clean water, we want it cleansed before it gets back into our traditional navigable water bodies, yet most of the stormwater facilities 

that municipal entities and special districts need to construct are 

in natural swales or low spots, if you will, or drainageways. That 

is where stormwater goes. 

If every time you operate in those areas, you need to pull a Section 404 and potentially even trigger NEPA, it is going to make it 

very difficult. 
118 

The final thing I will say, which I think being fairly close by you 

are aware of the fires in Colorado, it was of necessity that we got 

out a week or less after those fires went out, those large fires outside Colorado Springs and Denver. 

In the drainageways, we put in detention structures to hold back 

the sediment flows and debris that would come down the first time 

you got an athen train even. What would potentially be considered 

navigable waters of the United States under the proposal? That is 

problematic. 

Senator FISCHER. It would be problematic in your response time, 

correct? 

Mr. PIFHER. Yes, exactly. 

Senator FISCHER. Thank you. 

Thank you, Mr. Chairman. 

Senator SULLIVAN. Thank you, Senator Fischer. 

Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman. 

The Clean Water Act is one of America’s great success stories. 

The drama of rivers catching on fire propelled it into law and the 

importance of clean water to public health and the economy keep 

it going today. 

Cleaning up our waterways takes sustained efforts. In 2013, for 

the first time in 50 years, the Charles River in Boston was declared 

clean enough for swimming. 

While we have made large improvements in water quality since 

enactment of the Clean Water Act, there is still more to do. More 

than half of U.S. rivers are still unsuitable for aquatic life, largely 

due to fertilizer, runoff and pesticides. 

One in four fish are unsafe to eat due to high mercury levels. As 

much as fish are affected, analysis of 20 million tap water quality 

tests in 45 States found 316 different contaminants from industrial 

solvents to weed killers in water supplied to the public over a 5- 

year period. That is why a strong Clean Water Act is still important today. 

Today’s hearing primarily concerns the definition of navigable 

waters, the term which is used in the Clean Water Act and has 

been the subject of competing interpretations. For all the controversy that surrounds it, however, Congress’ legislative intent 

was clear. 

The 1972 conference report states, ‘‘The conferees fully intend 

that the term ‘navigable waters’ be given the broadest possible constitutional interpretation.’’ 

Mr. Parenteau, I would like to ask you some questions about that 

and the Supreme Court’s ruling on the issue. 

The Supreme Court has held that wetlands are deemed waters 

of the United States if they significantly affect navigable waters, 

which term the Court has expressed includes something more than 

traditional navigable waters. In fact, the Court has twice stated 

that the meaning of navigable waters in the Act is broader than 

the traditional meaning of the term. 

Mr. Parenteau, is the proposed rule consistent with the Constitution and the decisions of the U.S. Supreme Court? 

Mr. PARENTEAU. In my view, it is, Senator Markey. Specifically, 

with the question of significant nexus, there have been 11 Circuit 
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Court decisions since the Rapanos case was issued. All 11 have 

said the Kennedy test is either the controlling test, the Kennedy 

test is the significant nexus test, is either the controlling test or in 

one Circuit, the Eleventh Circuit, the exclusive test. 

No court has said that Justice Scalia’s plurality opinion is the 

controlling opinion from the Rapanos case. Significant nexus means 

biological integrity. It does not mean simply the transport of a pollutant from point A to point B. 

The Supreme Court unanimously, in the Riverside Bayview case, 

said the purpose of the Clean Water Act is to protect the ecological 

integrity of the Nation’s waters, an opinion written by Justice 

White of Colorado, who had knowledge of the western landscape. 

Senator MARKEY. Thank you. 

Will the proposed rule decrease litigation risk and reduce uncertainty over which types of water bodies are within Federal jurisdiction by defining which waters affect navigable waters and are subject to the Clean Water Act? 

Mr. PARENTEAU. Quite the contrary, it will increase litigation because this bill layers on a whole bunch of new terms and new concepts that will all have to be litigated on top of an existing body 

of case law, including the Supreme Court’s decisions in Rapanos. 

You are now going to have a whole new wave of litigation trying 

to understand what this legislation would do in relation to the 

original legislation and the case law that exists. 

Senator MARKEY. Will the rule clarify? 

Mr. PARENTEAU. It will not. 

Senator MARKEY. It will not clarify. 

Mr. PARENTEAU. The Clean Water rule will clarify. 

Senator MARKEY. Will the rule clarify? 

Mr. PARENTEAU. The rule will clarify, to the extent it can be 

clarified. 

Senator MARKEY. The rule will clarify. The bill will not clarify? 

Mr. PARENTEAU. Right. 

Senator MARKEY. That is important to get out there. 

Mr. Lemley, history has shown that left unprotected, wetlands 

and the free water purification services they perform are often diminished or destroyed. Do you believe that by protecting these free 

water cleaning systems the proposed rule will have a positive economic impact on our industry and the economy? 

Mr. LEMLEY. Absolutely, there is no question. We are also in Colorado and with the fires we saw and then the flooding we saw, we 

are very concerned about water quality and the availability of 

water. We need, in our growing industry, as much clean and abundant water as we possibly can get. 

Senator MARKEY. Thank you. 

Thank you, Mr. Chairman. 

Senator SULLIVAN. Thank you, Senator Markey. 

Chairman Inhofe. 

Senator INHOFE. Thank you, Mr. Chairman. 

Senator Barrasso brought up the article in this morning’s New 

York Times. I would ask unanimous consent that article be made 

a part of the record. 

Senator SULLIVAN. Without objection. 

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Senator INHOFE. I would also like to make sure the record notes 

what the EPA actually conducted, the New York Times suggests, 

was an unprecedented grassroots lobbying campaign that may violate Federal law. 

I want to make sure everyone knows I have already asked the 

Government Accountability Office to look into this matter. 

One of the things I hear different people discussing, the liberals 

in the U.S. Senate and in the House, I would say, is it is always 

offensive when people talk about the States, what they want, and 

the individuals. 

I am reminded when this issue first came surfaced, it was to 

take the word ‘‘navigable’’ out. My good friend from Massachusetts 

will remember this because the authors of that bill were Senator 

Feingold and Representative Oberstar. This was many years ago. 

Not only did we overwhelmingly defeat that legislation but both 

of them were defeated the next time they came up for reelection. 

The people really are plugged into this thing. 

Right now, 32 States have already said they support this. This 

is what is coming from the States. It is almost offensive to people 

here in Washington. 

I do not think anyone has talked about the regional treasures yet 

I think it was Administrator McCarthy who told the National 

Farmers Union that the EPA plans to finalize a rule that will go 

even further than the original proposed by regulating regional 

treasures. 

Ms. Metzger, do you want to address that for us? It should be 

a part of this hearing. 

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

I believe a map is being held up that shows that the Central 

Great Plains eco-region covers a good portion of Kansas. If we 

looked at the isolated waters mapped within that area, our wetlands that are not under Federal jurisdiction, number somewhere 

in the neighborhood of more than 480,000 acres that would then 

fall under the jurisdiction of the Clean Water Act if that was considered jurisdictional. 

Similar to expansion of the stream mile, that would divert State 

resources currently used for protecting our waters of the U.S. toward additional acres that could then be better used for other State 

programs. That would cause significant concerns. 

Senator INHOFE. If you look at that map, you see that Oklahoma 

and Kansas, almost exactly the same percentage, would fall into 

that category. 

In Oklahoma, Tom Buchanan is the President of the Oklahoma 

Farm Bureau. He made a statement and most of the rest of the 

Farm Bureaus have added their names to the statement. He said 

the major problems facing the farmers and the ranchers in my 

State of Oklahoma have nothing to do with anything that is found 

in the agriculture bill. Instead, it is over regulation by the EPA. 

When they talk about the endangered species and all these 

things that are happening through over regulation of the EPA, the 

No. 1 concern is the issue we are talking about today. 

I noticed, Mr. Pifher, I guess you are the one who had this picture. I asked to see a copy. Out in the panhandle of Oklahoma it 
126 

is walking distance to both Kansas and Colorado. This could just 

as well have been in Oklahoma. 

Mr. Pifher, Mr. Lemley and Mr. Parenteau claim that the Waters 

of the United States Rule is needed to protect the drinking water 

of 117 million people and that S. 1140 does not provide that protection. Do you want to respond to that statement? 

Mr. PIFHER. I believe the drinking water source for all citizens 

actually is adequately protected under the Clean Water Act and 

the Safe Drinking Water Act today. In fact, it has been over a decade I think since EPA issued a directive to all the States to identify 

what are called source water protection scenarios. 

At that time, I ran the Colorado Water Quality Control Division 

and we were very diligent in completing that task, working with 

local towns, cities and other water provider communities. They all 

submitted their delineation and that became part of our water 

quality standards program. 

I think we have adequate protection in place. 

Senator INHOFE. Thank you very much. 

Thank you, Mr. Chairman. 

Senator SULLIVAN. Thank you, Senator Inhofe. 

Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

I have a question for Ms. Metzger and also Mr. Pifher. I would 

like to read the statement and then ask your thoughts. 

Claiming that a definition imposes no cost on State and local 

governments or small businesses, EPA and the Corps chose to ignore laws and Executive Orders that would have required them to 

develop the proposed rule in partnership with the States and after 

evaluating local government and small business impacts. 

In fact, the summary of the rulemaking on OMB’s website says 

that the Waters of the United States Rule is not a major rule and 

makes the following statements. One, there is no regulatory flexibility analysis required. Two, there are no small entities affected, 

so there are no small business impacts. Three, there are no government levels affected. Four, there does not need to be a federalism 

consultation because of that. 

To both of you, I want to know, do you agree with these statements? Second, under S. 1140, would the EPA and the Corps be 

able to simply skip a regulatory flexibility analysis, small business 

impact analysis or a federalism impact analysis? 

Ms. METZGER. Regarding the first question, we would disagree. 

This is a major rule. We appreciate that S. 1140 doesn’t provide 

any wiggle room of doing the proper evaluation and consultations 

that you described. 

We talked a bit about the lack of consultation and the appropriate level of federalism related to the cost in our comment letter 

that we provided to the proposed rule. We gave a very specific example of the cost incurred by the States if the proposed rule were 

put in place. 

We expend about $300,000 of State funds every year conducting 

about 500 use attainability analyses on our designated waters. If 

this rule were to go into effect, we could expect that State expenditure for use attainability analysis, we would have to redo the 500 
127 

that we do on an annual basis and should expect we would have 

to do additional ones as new waters are brought into jurisdiction. 

Those are precious State resources that could be spent achieving 

other water quality protection. 

Senator ROUNDS. Mr. Pifher. 

Mr. PIFHER. I would just add one, I agree with what was said 

by Ms. Metzger. It would increase the number of use attainability 

analyses that have to be performed not only by the State but by 

local governments who have to seek some water quality standard 

modifications to what historically were not treated as jurisdictional 

waters. 

The State would also bear the cost of doing Section 401 certifications. If you need a Federal license or permit, like a Section 404 

permit, the State has to certify that the project being permitted 

meets all appropriate State water quality requirements. 

Part of the Section 401 certification is an anti-degradation review 

which is also, at times, quite lengthy and expensive to perform. 

Generally, States do not have the resources to expand those programs. 

At the local level, utilities or special districts are responsible also 

for waste water from discharges and stormwater control facilities 

meeting MS–4 stormwater permit requirements. To the extent you 

Federalize more and more waterways, it becomes more difficult to 

ensure compliance with those types of permit requirements. 

Senator ROUNDS. Thank you. 

Mr. Pierce, in your testimony, you state that in the EPA 

Connectivity Study, which formed the basis for the rule, water that 

is as deep as 10 meters below the surface is shallow enough to represent a surface connection. 

You go on to say that rather than a technical study focused on 

connectivity, EPA should have undertaken a study on what constitutes significant in the context of significant nexus. 

Is it your contention that the EPA failed to ask the Science Advisory Board the proper relevant questions regarding the surface connections and what constitutes a significant nexus when seeking scientific advice regarding the proposed rule? 

Mr. PIERCE. I think the fault was with whoever in EPA decided 

to do a study internally, first of all, because those people were directed to do a study on connectivity. They should have been directed to do a study on significant as in significant nexus. 

I cannot fault the Science Advisory Board because they simply 

were provided with a study that EPA produced and asked to evaluate it. They did it. I do not know that it is in their mandate to tell 

the EPA that you did the wrong study for a particular reason, but 

they simply evaluated the study that was done. 

Anybody who has ever been in science and dealt with hydrology 

knows that systems are all connected. That was kind of meaningless and most of the study that EPA did was based on flood plains 

being connected to their rivers in which their flood plain exists. 

That is kind of a no brainer. 

The question was, what about the connectivity of ephemeral 

streams way up in the far, removed from the navigable waters of 

the U.S. That was addressed very minimally. 

Senator ROUNDS. Thank you. 
128 

Mr. Chairman, my time is up but I would like to ask your permission to enter into the record a copy of a letter to the Corps of 

Engineers from me regarding the question and the comment period 

and whether or not the comments sent to the EPA and the Corps 

of Engineers where there is a discrepancy or a misconnect between 

the EPA’s comment about a million comments coming in and the 

favorability versus what the Corps of Engineers had done and the 

Corps of Engineers’ response showing that of those unique responses, 60 percent of those unique responses were opposed to this 

new rule, Waters of the U.S., versus 29 percent in favor, significantly different than what the EPA had suggested of 89 percent 

being favorable and their explanation. 

Senator SULLIVAN. Without objection. 

[The referenced material was not received at time of print.] 

Senator ROUNDS. Thank you. 

Senator SULLIVAN. I have a few more questions to wrap up. 

One of the issues I think has been controversial about the 

WOTUS rule is the legal basis of the rule. We have asked the EPA 

Administrator to provide us the legal opinion they have used as the 

basis for promulgating the rule. 

Senator Rounds also talked about the Connectivity Report. This 

question is open to any of the witnesses to comment. 

In terms of the process, Professor Parenteau, in your testimony, 

you talked about the science and some of the science for the rule 

was based on the Connectivity Report. One of the problems for people commenting was that the Connectivity Report was not finalized 

before the EPA issued the final proposed rule. The Final 

Connectivity Report was never available during the public comment period on the proposed rule. 

The report upon which the rule is based was never out in time 

for people to analyze it before the period of comment on the rule 

was closed. Would anyone like to comment on that? 

I have the specific dates with regard to when the rule came out, 

when the Connectivity Report came out, but the review and the 

final Connectivity Report was not completed until January 15, 

2015, over 2 months after the comment period had ended on the 

rule upon which it was based which to me seems to be the exact 

backward way in which to develop a rule based on science. 

Would any of the witnesses care to comment on that? 

Mr. PIERCE. I commented on the draft study, EPA study, because 

that was all that was available. I personally found that you are absolutely right, that is not the way science should work, nor the way 

the Regulatory and Administrative Procedures Act should work. 

They based a proposed rule on something that was not finalized 

and then the SAB did not get its report done either because it was 

working with a proposed study. That is not the way this is supposed to work. 

I will say to their credit that this is the first time EPA has bothered to go through the APA procedures in changing jurisdiction. 

They have been doing it for a long time just through guidance documents. At least they made an effort but it certainly was not an 

effort one would think would be based on good science. 
129 

First of all, there was the wrong study, connectivity instead of 

significant analysis, and then not even a completed study when 

they did the proposed rule. 

Senator SULLIVAN. Professor Parenteau. 

Mr. PARENTEAU. I have a couple of points. I am not going to 

apologize for EPA if they got things out of order. I will say that 

several things about the Connectivity Report need to be emphasized. 

One, EPA’s rule does not go as far as the Connectivity Report 

suggests it could go. It does not go as far as the science suggests 

it could go. That is an important point that has been sort of overlooked here. 

Two, EPA asked the Science Advisory Board for information to 

inform its significant nexus determination. The reason they asked 

for the Connectivity Report approach is because Justice Kennedy, 

in his controlling opinion, said the key question is, in the aggregate, how do streams and wetlands affect the chemical, physical, 

biological integrity of the Nation’s waters. 

It was this aggregate concept that Justice Kennedy imposed that 

had to be addressed in EPA’s rulemaking. The science was designed to inform that aggregate analysis of headwaters, streams 

and their role. That is why the process works the way it did. The 

fact that the SAB validated EPA’s approach is the most important 

point. 

Senator SULLIVAN. Thank you for that. 

Mr. Pifher. 

Mr. PIFHER. I was just going to add that we did comment, NWRA 

and other western water interests, on the procedural flaw, if you 

will, in this process. Maybe more important was the scope of the 

charge, as Mr. Pierce has pointed out, was incorrect. 

The Science Advisory Board, in reviewing the work on the report, 

said there really was a failure to identify the gradient of 

connectivity that was necessary before you would Federalize a 

water body. This gradient concept really boils down, I think, to significance. There was a failure to determine what is significant relative to water quality. 

Senator SULLIVAN. Mr. Pierce, did you have an additional comment? 

Mr. PIERCE. I was just going to respond to Mr. Parenteau’s statement. The fact is that I am not an attorney but I have read Justice 

Kennedy’s opinion also. Justice Kennedy is not saying all biological, 

chemical or physical interaction is something that brings an area 

into a water of the U.S. It is significant nexus. 

The other point is that the proposed rule right now will make 

things a lot easier because everything that is a physical channel 

will be regulated by the Federal Government. There will be no 

question about that whatsoever. 

If you want to get to the science of protecting water quality, you 

need to go to the dry land and regulate it because that is where 

most groundwater recharge occurs, not in wetlands and not in 

streams. That is where most runoff originates that goes into 

streams that washes down into Narragansett Bay from the uplands. 
130 

If you dump material right here on the banks of the Potomac 

that is out of the jurisdiction and nobody is even claiming that it 

is in jurisdiction, it will get into the Potomac River far faster than 

it will if you dump something way up in the hinterlands in western 

Maryland and it has to come all the way down and try to get to 

the Potomac. 

Senator SULLIVAN. Thank you. 

I want to ask one final question. It goes to some of the comments 

Senator Inhofe made. Ms. Metzger, this is for you, but again, any 

of the panelists can comment. 

Senator Inhofe talked about the role of the States and how important that is. It is not just the sense of the Congress in terms 

of this committee, it is actually the foundation of the Clean Water 

Act. 

The beginning of the Clean Water Act stated ‘‘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 of land and water 

resources.’’ 

Do you think the WOTUS Rule, particularly the way in which 

the consultation provision occurred but more generally, overarching 

aspects of it, do you think that actually fits with this policy delineated at the outset of the Clean Water Act? 

Ms. METZGER. I would echo what we have stated before that 

proper consultation with the States really fell short in this process. 

Moving forward, I think even today’s panel recognizes the diversity 

of feedback and concerns expressed with developing the proposed 

rule. I think there have even been concerns about delaying this 

even further. 

I think if the proposed rule were to be issued today without any 

further consultation, we would see much more significant delays in 

the form of lawsuits and other measures. 

S. 1140 gives really positive, clear steps forward in opening that 

consultation with the States appropriately and by wintertime, we 

would have more assurance of adequate Clean Water Act in the 

WOTUS definition with which we would feel more comfortable. 

Senator SULLIVAN. Other comments on that question? 

I ask unanimous consent that the following comments from the 

following organizations be included for the record: the U.S. Chamber of Commerce, the American Road and Transportation Builders 

Association, American Farm Bureau Federation, Arizona Farm Bureau Federation, Portland Cement Association, International Council of Shopping Centers, Oklahoma Farm Bureau, Kansas Farm 

Bureau, Public Lands Council, National Cattlemen’s Beef Association and their State affiliates, National Association of Counties, 

U.S. Conference of Mayors, National League of Cities, National Association of Regional Councils, a letter signed by over 80 agricultural organizations from across the U.S., the Water Advocacy Coalition, a group of 60 organizations from a diverse group of industries, 

and a list of 188 other organizations who support S. 1140. 

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Senator SULLIVAN. Senator Whitehouse, do you have anything 

else you would like to submit for the record? 

Senator WHITEHOUSE. I have a closing comment if I may. 

Senator SULLIVAN. Yes. 

Senator WHITEHOUSE. The Clean Water Act and clean water regulation has, for always since back when it was a common law doctrine and through the establishment by Congress of the Clean 

Water Act and through the EPA’s administration of that law, had 

the purpose of defending the downstream recipient of upstream 

waste, pollution and bad disposal. That really is at the heart of 

what we need to do. 

I am from Rhode Island. We are a downstream State. Coastal 

States are downstream States. While I appreciate Ms. Metzger’s 

concern for the well being of the waterways of Kansas, the idea 

that as a downstream sovereign State, I have to depend on what 

another State does in order to protect the waters that flow through 

me is inconsistent with the entire history of clean water regulation. 

I love Massachusetts. They are our neighboring State. Most of 

our rivers start in Massachusetts, but the idea that I, as Rhode Island, would be comfortable allowing the Massachusetts Department of Environmental Protection or the Massachusetts agricultural agency be the only agency that has a word to say about how 

the waters of Rhode Island, how Narragansett Bay, how my riparian users are treated, makes no sense. That is not acceptable. 

That is not proper federalism. It is not why we set up the Federal Government to begin with. 

To me, the notion that the U.S. Government has no role in protecting a downstream State and its members from upstream pollution is an extraordinary idea. It is an extraordinary idea. 

What often goes overlooked here is that those of us who want the 

environmental protection here are actually giving up a fair amount 

in this EPA rule as Professor Parenteau has said and as many observers have noted to the problem of under inclusion and over inclusion by this regulation. 

There is probably going to be error but there is going to be error 

on both sides. When you look at some of the agricultural activities 

and their capacity for pollution, which we are not protected from, 

when we look at the capacity of particular types of storm bursts we 

are seeing in New England, to wash that sort of stuff down predictably, foreseeably, to have an effect on our downstream users, I 

wish Mr. Lemley was in Rhode Island because we have great waters too, but he is very concerned, as our many people, about what 

the upstream use is. 

There has to be a method by this. There has to be a role for EPA, 

stuff that foreseeably is going go to flow into downstream waters 

has to be protected against in some way, even if it is only intermittent flow. 

If you know every September the big storms come through and 

are going to wash all that junk down into the next State’s waters, 

that next State needs some place to go. Because State interests will 

always put the interest of their home State industries first, it is not 

adequate for our coastal States to count on that. 

I want to make sure that point is clear in the record. There are 

downstream States that need protection and there is very substan-
151 

tial under inclusion in the proposed rule as well. There is very significant pollution that will still be permitted without regulation at 

all to harm downstream users under the proposed rule. We are concerned about that as a downstream State. 

I thank all the witnesses and I thank the Chairman for the hearing. 

Senator SULLIVAN. I have one final comment. 

I think Senator Whitehouse raises an important point. I do think 

key elements of S. 1140 actually address the downstream issue. We 

can continue to work on that. 

Let the record reflect that I will leave the record of this hearing 

open for ten additional calendar days in order for additional comments to be submitted. 

The hearing is now adjourned. Thank you very much. 

[Whereupon, at 11:34 a.m., the subcommittee was adjourned.] 

[An additional statement submitted for the record follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR

FROM THE STATE OF OKLAHOMA

I am very pleased to be an original cosponsor of the Federal Water Quality Protection Act. Let me explain why this bipartisan legislation is so incredibly important. 

Last April, EPA and the Corps of Engineers proposed a rule that would significantly expand Federal control over land and water by expanding the definition of 

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

Claiming that this definition imposes no costs on State and local governments or 

small businesses, EPA and the Corps chose to ignore the laws and Executive Orders 

that would have required them to develop the proposed rule in partnership with 

States and after evaluating local government and small business impacts. 

Instead, they wrote it behind closed doors. The result was a disaster and the proposed rule was roundly criticized by States, local governments, small businesses, 

farmers, and many others. 

EPA’s response to this criticism is very telling. Rather than withdrawing their 

proposal and starting over with the input of farmers, small businesses, local governments and States, EPA went into campaign mode. 

EPA held over 400 meetings and calls. However, instead of acknowledging legitimate concerns, EPA’s outreach effort was focused on convincing people that EPA 

knows best. For some audiences, their message was: ‘‘The sky is falling. Without 

this rule, we can’t protect your drinking water.’’ For other audiences, particularly 

farmers, the message was: ‘‘Don’t worry; the rule will not change anything.’’ 

Despite all this outreach, EPA has still not responded to legitimate questions 

raised by State and local governments and others. In fact, we submitted questions 

to Administrator McCarthy on February 24 and after 3 months we still have not 

received her responses. 

At our February 4 hearing on the rule, EPA Administrator McCarthy told Congress they would make changes to address concerns, but she also told us that the 

substance of the final rule would not be significantly different from the proposal. 

It is clear that no amount of questions or concerns is going to change their minds 

and Congress needs to provide some direction. 

Our legislation does not allow the rule to forward in its current form. EPA and 

the Corps of Engineers will have to go back and comply with the laws and Executive 

Orders that are designed to improve regulations and report to Congress on how they 

met those obligations. 

The legislation does not write the rule for them. It does not address every water 

body that might be regulated by the Federal Government or left to State regulation. 

But, we do set forth some principles and guidelines for EPA and the Corps to follow when they rewrite the rule. 

Importantly, the bill tells EPA and the Corps that they need to focus on water 

bodies. Not puddles, ditches, groundwater, and overland sheet flow. 

They also need to focus on the ability of water pollution to reach navigable water. 

This means they cannot use the movement of birds, animals and insects, or nature’s 

water cycle to create Federal control over land and water. EPA may say that all 

water is connected, but that does not support Federal regulation. 
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By introducing this bill together, both Republicans and Democrats want to make 

sure that EPA and the Corps actually listen to States, local governments and other 

stakeholders, keep their promises, and issue a regulatory definition of ‘‘waters of the 

United States’’ that recognizes that Congress did not give the Federal Government 

control over all water. 

I look forward to hearing your thoughts on this legislation. 

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