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94–271 PDF 2015

PROPOSED FEDERAL WATER 

GRABS AND THEIR POTENTIAL IMPACTS ON STATES, 

WATER AND POWER USERS, 

AND LANDOWNERS 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER, POWER AND OCEANS 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

Tuesday, April 14, 2015 

Serial No. 114–1 

Printed for the use of the Committee on Natural Resources 

( 

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

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Doug Lamborn, CO 

Robert J. Wittman, VA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Doug LaMalfa, CA 

Bradley Byrne, AL 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Dan Newhouse, WA 

Ryan K. Zinke, MT 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Thomas MacArthur, NJ 

Alexander X. Mooney, WV 

Cresent Hardy, NV 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Jared Huffman, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Matt Cartwright, PA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Debbie Dingell, MI 

Mark Takai, HI 

Ruben Gallego, AZ 

Lois Capps, CA 

Jared Polis, CO 

Jason Knox, Chief of Staff 

Lisa Pittman, Chief Counsel 

David Watkins, Democratic Staff Director 

Sarah Parker, Democratic Deputy Chief Counsel 

SUBCOMMITTEE ON WATER, POWER AND OCEANS 

JOHN FLEMING, LA, Chairman 

JARED HUFFMAN, CA, Ranking Democratic Member 

Don Young, AK 

Robert J. Wittman, VA 

Tom McClintock, CA 

Cynthia M. Lummis, WY 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Doug LaMalfa, CA 

Bradley Byrne, AL 

Jeff Denham, CA 

Dan Newhouse, WA 

Thomas MacArthur, NJ 

Rob Bishop, UT, ex officio 

Grace F. Napolitano, CA 

Jim Costa, CA 

Ruben Gallego, AZ 

Madeleine Z. Bordallo, GU 

Gregorio Kilili Camacho Sablan, CNMI 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Norma J. Torres, CA 

Debbie Dingell, MI 

Rau ́l M. Grijalva, AZ, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Tuesday, April 14, 2015 .............................................................. 1 

Statement of Members: 

Fleming, Hon. John, a Representative in Congress from the State of 

Louisiana ....................................................................................................... 1 

Prepared statement of ............................................................................... 2 

Gosar, Hon. Paul A., a Representative in Congress from the State of 

Arizona ........................................................................................................... 3 

Huffman, Hon. Jared, a Representative in Congress from the State of 

California ....................................................................................................... 5 

Statement of Witnesses: 

Buzbee, William W., Professor of Law, Georgetown University Law 

Center, Washington, DC ............................................................................... 22 

Prepared statement of ............................................................................... 23 

Heinen, Mike, General Manager, Jefferson Davis Electric Cooperative, 

Inc., Jennings, Louisiana ............................................................................. 38 

Prepared statement of ............................................................................... 40 

Mauck, Timothy, Commissioner, District 1, Clear Creek County, 

Colorado ......................................................................................................... 17 

Prepared statement of ............................................................................... 19 

Myrum, Tom, Executive Director, Washington State Water Resources 

Association, Olympia, Washington .............................................................. 29 

Prepared statement of ............................................................................... 31 

Questions submitted for the record ......................................................... 37 

Ogsbury, James, Executive Director, Western Governors’ Association, 

Denver, Colorado ........................................................................................... 7 

Prepared statement of ............................................................................... 8 

Questions submitted for the record ......................................................... 11 

Sullivan, Ron, Board of Directors, Division 4, Eastern Municipal Water 

District, Perris, California ............................................................................ 12 

Prepared statement of ............................................................................... 13 

Weldon, Leslie, Deputy Chief, U.S. Forest Service, Washington, DC .......... 58 

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

Questions submitted for the record ......................................................... 62 

Additional Materials Submitted for the Record: 

Bureau of Reclamation, U.S. Dept. of the Interior, Prepared statement 

of ..................................................................................................................... 67 

California Association of Sanitation Agencies, November 5, 2014, Letter 

submitted for the record ............................................................................... 68 

California Water Boards, November 14, 2014, Letter submitted for the 

record ............................................................................................................. 72 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 80 

(1) 

OVERSIGHT HEARING ON PROPOSED FEDERAL WATER GRABS AND THEIR POTENTIAL IMPACTS ON STATES, WATER AND 

POWER USERS, AND LANDOWNERS 

Tuesday, April 14, 2015 

U.S. House of Representatives 

Subcommittee on Water, Power and Oceans 

Committee on Natural Resources 

Washington, DC 

The subcommittee met, pursuant to notice, at 1:53 p.m., in room 

1324, Longworth House Office Building, Hon. John Fleming [Chairman of the Subcommittee] presiding. 

Present: Representatives Fleming, McClintock, Lummis, Gosar, 

LaMalfa, Newhouse, MacArthur; Huffman, Napolitano, and Costa. 

Also present: Representatives Tipton, Westerman, Graves, and 

Zinke. 

Dr. FLEMING. The Subcommittee on Water, Power, and Oceans 

will come to order. The Water, Power, and Oceans Subcommittee 

meets today to hear testimony on a hearing entitled, ‘‘Proposed 

Federal Water Grabs and Their Potential Impacts on States, Water 

and Power Users, and Landowners.’’ 

Before we begin, I ask unanimous consent to allow our colleagues, Congressmen Westerman, Graves, Zinke, and Tipton to 

participate in our hearing today. 

[No response.] 

Dr. FLEMING. Hearing no objection, so ordered. 

We will begin with 5-minute opening statements by myself and 

the Ranking Member, Congressman Huffman of California. I now 

recognize myself for opening statement. 

STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA 

Dr. FLEMING. Today the Subcommittee on Water, Power, and 

Oceans meets to review Federal proposals that could increase 

water and power rates, and help perpetuate drought. 

Adequate and reliable water supplies are necessary for our continued success as a Nation. Historically, most of our water 

resources have been managed at the state and local levels, and 

rightly so. Even Federal dams and reservoirs deliver water based 

on the premise of state-granted water rights. Many have experienced firsthand the frustration of the Federal Endangered Species 

Act and other Federal laws overriding state water rights. Indeed, 

this administration has pushed the envelope with proposals aimed 

at superseding historical state and local water actions. 

It has a history of rolling out ill-explained and ill-informed 

Washington, DC-Knows-Best proposals in recent years, only to 

stand down later, after hearing backlash from the public. The soVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
2 

called Blueways Program was the first, followed by the ski areas 

water clause, then followed by the Forest Service’s Groundwater 

Directive, which could have impacted 155 national forests, including the Kisatchie in Louisiana. 

The people who depend on multiple uses of our waters and public 

lands have felt they have played the Whack-a-Mole game with 

these administration proposals. There seems to be no end in sight. 

These proposals, and the Waters of the U.S. regulations sitting 

at the White House now, have been drafted on the guise of 

‘clarifying’ the authority of Federal agencies. Only in Washington, 

DC would ‘clarification’ mean Federal expansion. The end result 

could be Federal jurisdiction over ditches and other water bodies 

currently regulated at the state and local levels, and regulatory 

chaos. 

These proposals would be a litigant’s dream and a private property owner’s nightmare, and potentially, higher water and power 

rates, which we will hear about today. 

Throughout today we will hear about the Administration’s inability to communicate with those most affected by these proposals. 

The EPA and the Forest Service have reacted with what some have 

termed ‘‘apology tours.’’ It begs the question of why they failed to 

engage our Nation’s governors, water users, and others in the first 

place, to help avoid this mess. 

The witnesses before us today represent some of the stakeholders 

who were forgotten in the Federal agency process. I would especially like to welcome the hard-working folks from the National 

Water Resources Association, many of which are in the audience 

today. They see firsthand how these proposals will impact the 

water customers they serve. 

It is telling, from what the President called ‘‘the most transparent administration in history,’’ that the Federal agency NWRA’s 

members primarily work with, the Bureau of Reclamation, refused 

to show up and answer questions about the potential impacts of 

these proposals. 

I would also like to welcome Mr. Mike Heinen—I hope I am saying that right—the General Manager of the Jeff Davis Electric 

Cooperative in Jennings, Louisiana, for being here today. Did I say 

that right? Heinen, I am sorry. It was a 50/50 chance, and, of 

course, I got it wrong. I commend Mike for his efforts to keep the 

lights on for Louisianans, and for telling his story on how these 

proposals will make it harder for him to do so. 

It is simply time for these Federal agencies to start over and do 

it right. Communication with the American people is the first step. 

[The prepared statement of Dr. Fleming follows:] 

PREPARED STATEMENT OF THE HON. JOHN FLEMING, CHAIRMAN, SUBCOMMITTEE ON

WATER, POWER AND OCEANS

Today, the Subcommittee on Water, Power and Oceans meets to review Federal 

proposals that could increase water and power rates and help perpetuate drought. 

Adequate and reliable water supplies are necessary for our continued success as 

a Nation. 

Historically, most of our water resources have been managed at the state and 

local levels—and rightly so. Even Federal dams and reservoirs deliver water based 

on the premise of state-granted water rights. 

3 

While the Federal Endangered Species Act and some Federal laws continue to 

override some of those state water rights, this administration has pushed the envelope with proposals aimed at super-ceding historical state and local water actions. 

The Administration has a history of rolling out ill-explained and ill-informed 

Washington, DC-knows-best proposals in recent years only to stand down later after 

hearing backlash from the public. The so-called Blueways program was the first, 

followed by the ski areas water clause, then followed by the Forest Service’s 

Groundwater Directive which could have impacted 155 national forests, including 

the Kisatchie in Louisiana. 

The people who depend on multiple uses of our waters and public lands have felt 

they’ve played the Whack-a-Mole game with these administration proposals. There 

seems to be no end in sight. 

These proposals—and the Waters-of-the-U.S. regulation sitting at the White 

House now—have been drafted under the guise of quote ‘‘clarifying’’ unquote the authority of Federal agencies. Only in Washington, DC would ‘clarification’ mean 

Federal expansion. The end result could be Federal jurisdiction over ditches and 

other water bodies currently regulated at the state and local levels and regulatory 

chaos. 

These proposals would be a litigant’s dream and a private property owner’s nightmare . . . and potentially higher water and power rates which we will hear about 

today. 

Throughout today, we will hear about the Administration’s inability to communicate with those most affected by these proposals. The EPA and the Forest Service 

have reacted with what some have termed apology tours. It begs the question of 

why they failed to engage our Nation’s Governors, water users and others in the 

first place to help avoid this mess. 

The witnesses before us today represent some of the stakeholders who were forgotten in the Federal agency process. I would especially like to welcome the hardworking folks from the National Water Resources Association, many of which are 

in the audience today. They see firsthand how these proposals will impact the water 

customers they serve. 

It’s telling from what the President called ‘‘the most transparent administration 

in history’’ that the Federal agency NWRA’s members primarily work with—the 

Bureau of Reclamation—refused to show up and answer questions about the potential impacts of these proposals. 

I would also like to welcome Mr. Mike Heinen, the General Manager of the Jeff 

Davis Electric Cooperative in Jennings, Louisiana for being here today. I commend 

Mike for his efforts to keep the lights on for Louisianans and for telling his story 

on how these proposals will make it harder for him to do so. 

It’s simply time for these Federal agencies to start over and do it right. 

Communication with the American people is the first step. 

Dr. FLEMING. OK. We are still waiting on the Ranking Member. 

So the Chair now recognizes the Vice Chair, the gentleman from 

Arizona, for his opening statement. 

STATEMENT OF THE HON. PAUL A. GOSAR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Dr. GOSAR. Thank you very much, Mr. Chairman. Our subcommittee meets today to conduct oversight on expansive Federal 

regulations that ignore the primary role of the states in regulating 

groundwater and issuing water rights. For those of us in the West, 

state water laws and the rights that they protect are paramount 

to our economy, our environment, and our way of life. 

Westerners suffer from drought on a constant basis, which is 

why we have invested in water storage and delivery projects that 

supply water and hydropower in dry times. The proposals before us 

today will erode those benefits. 

Nearly a year ago, we held a hearing on this very same topic. 

While the Forest Service has temporarily withdrawn its unnecessary groundwater directive, states, localities, and private entities 

4 

still face regulatory uncertainty under the shadow of the Federal 

Government. Instead of creating clarity, this administration has 

created chaos. 

This is not new, however. Three years ago, the people of the 

White River Watershed in Arkansas and Missouri learned that 

250-feet Federal buffer zones were part of a federally designated 

blueway regulatory blueprint. At the same time, the Forest Service 

tried to extort privately held water rights by holding public use 

permits for ski resorts captive. 

Last year, the Forest Service proposed a sweeping groundwater 

directive under the guise of eliminating future litigation. That directive only caused further confusion and potential litigation. We 

will hear today from the bipartisan Western Governors’ Association 

that the directives asserted new Federal ownership of groundwater, 

and how there was little to no communication with any of those impacted by the document. 

You will also hear how the proposed Waters of the U.S. proposal 

could impact state-based groundwater regulations, and make it 

even harder for Westerners suffering from serious drought to finish 

groundwater recharge and conservation projects aimed at eliminating drought. 

Based on these repeated actions, clearly, this administration is 

out of touch with those who work, care for, and preserve our waters 

and lands. The Obama administration has made it clear that it has 

no intention of following the law or respecting the legislative process when developing Federal rules and regulations. This President 

has repeatedly chosen to ignore the will of the people, American 

people, and govern by executive fiat to implement his far-left 

ideology. And that is why legislation is necessary for long-term 

certainty. 

The House passed Congressman Scott Tipton’s bill last year to 

limit these excessive Federal attempts that undermine long-held 

state water laws, and I look forward to working with him and 

others this year to pass similar legislation. 

I also introduced Waters of the United States Regulatory 

Overreach Protection Act earlier this year. This bipartisan bill requires the relevant Federal agencies to go back to the drawing 

board and consult with states and other local officials to formulate 

a proposal. Everyone wants clean water. But crafting regulations 

without first speaking with stakeholders is a foolish approach in 

good governance. 

We are privileged today to hear from several witnesses impacted 

firsthand by these proposals. I also want to welcome those from the 

National Water Resources Association, who have traveled to 

Washington, DC to protect and grow their local regional economies. 

Thank you for your hard work. 

I look forward to today’s testimony and moving forward on efforts 

to resolve these issues. I yield back the balance of my time, Mr. 

Chairman. 

Dr. FLEMING. The gentleman yields back. 

The Chair now recognizes Ranking Member, Mr. Huffman. 

5 

STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. HUFFMAN. Thank you, Mr. Chairman. I apologize that I was 

a little slow getting back. I have a boot on my left foot, and I am 

not quite as mobile as I would like to be right now. 

I want to welcome our witnesses today to discuss the proposed 

definition of ‘‘Waters of the United States’’ under the Clean Water 

Act, and also the Forest Service’s previously proposed groundwater 

directive, which—we know, but bears emphasis—was put on hold 

in February. 

I think, Mr. Chair and Mr. Vice Chair, we have a very constructive start on the committee and subcommittee this year. We had 

a reasonable budget hearing. We discussed real issues. It was respectful, it was constructive, and I am pleased and encouraged by 

the conversations that I have had with each of you about opportunities to work together this year on items of mutual interest. And 

that is why I am disappointed that today’s hearing is a step backward to the partisan warfare of the last Congress, complete with 

a loaded, inflammatory title to this particular hearing. 

A similar hearing in the last Congress was called, ‘‘Federal 

Schemes to Soak up Water Authority.’’ This time it is about socalled water grabs. I am sorry to say this approach is premised on 

a straw man argument that the Obama administration is somehow 

bent on a radical, power-hungry quest to illegally assert authority 

over virtually every drop of water in the country. That is nonsense. 

The simple reality is that the draft administration proposal we 

are discussing today on the jurisdiction of the Clean Water Act is 

very narrowly tailored. Under President Ronald Reagan, hardly a 

radical, big-government expansionist, hardly an environmentalist, 

the Clean Water Act covered any body of water that could serve as 

habitat for migratory birds, a much more far-reaching standard 

than the one the Obama administration is currently considering. 

The GAO determined in 2004 that the Reagan clean water rule 

would have allowed the Army Corps to regulate almost any body 

of water or wetland. Let’s remember that when we hear the characterizations that the Obama administration’s draft proposal is some 

unprecedented overreach of executive power. It raises the question 

whether this concern about the proposed rule, which is far narrower than the Ronald Reagan rule, is about the substance, or is 

it more about who happens to be in the White House right now. 

Mr. Chairman, many of the concerns that are expressed in the 

testimony from today’s witnesses have been expressed in other 

committees. In addition to serving on this committee, I serve on the 

Transportation and Infrastructure Committee, which actually has 

jurisdiction over the Clean Water Act—this committee does not— 

raising another question about whether this is about the substance 

of the clean water rule, or just another chance to attack the Obama 

administration. 

Question after question about this rule has been posed on whether it would expand Federal authority, require new permitting. The 

Administration has been asked specifically multiple times about 

ditches on mine sites, prior converted crop lands, wastewater treatment, other ditches, uplands, artificial lakes, a channel created by 

a washed out irrigation ditch, swimming pools. On point after 

6 

point, the answer has been very clear: no, there is no expansion of 

authority, there is no new permitting requirement. There is no 

‘‘there’’ there. There is just partisan hysteria with no basis in fact. 

And yet, here we are today, once again, having a hearing on the 

scope of this proposed clean water rule with the same tired discredited arguments, conspiracy theories that this draft rule is some 

type of an expansion of jurisdiction. If we are going to have an honest discussion on this subject, I think we need to start by acknowledging that the draft rule is not an expansion of the Clean Water 

Act authority. It is just not. 

Now, I have visited with ranchers and landowners from my district. I understand there have been some anxieties about what this 

rulemaking means. Some have actually sought to foment some of 

that fear and anxiety. And when the draft rule was released last 

year, I agreed that there could be some additional specificity in a 

few areas before the final rule was released. It is understandable 

on a complex, complicated subject, that there might be some areas 

that need clarity. 

The Administration has responded. They have responded to these 

points saying, time and again, they would evaluate comments, 

make changes in the final rule to provide more specific definition, 

to provide more clarity, clearer designations for tributaries, assurances that the current exemptions for agriculture are going to stay 

on the books. That is why we have a public comment process, and 

it seems to be working. 

On the Forest Service Groundwater Directive, Mr. Chair, the 

Forest Service has put that directive on hold. But it is worth noting 

that Congress has directed the Forest Service in numerous laws to 

help manage and protect groundwater resources on national forest 

land. So it is an issue that needs attention. But right now it seems 

to me that it is really rather moot. 

When we are done with this exercise, Mr. Chair, I do hope that 

we can get back to trying to work together to solve real problems 

that are within the jurisdiction of this committee. There are many 

of them that need our attention, and I will look forward to the time 

when we can do that together. 

I yield back. Thank you. 

Dr. FLEMING. The gentleman yields back. 

We will now hear from our witnesses. Each witness’ written testimony will appear in full in the hearing record, so I ask that witnesses keep their oral statement to 5 minutes, as outlined in our 

invitation letter to you under Committee Rule 4(a). 

I will explain the timing lights very simply. You have 5 minutes. 

You will be under the green light for the first 4. Then it turns yellow, and then, at the end of that 1 minute, when it turns red, we 

need for you to immediately conclude so that we can hear 

everybody’s testimony and get to questions. 

I would also like to note, in addition to the witnesses we have 

today, we have Mr. Estevan Lopez, the Commissioner of the 

Bureau of Reclamation, who was also invited to testify at today’s 

hearing. As I indicated in my opening statement, the Bureau has 

refused for the second year in a row to provide a witness to answer 

any questions stemming from written testimony. That vacancy 

speaks volumes of the Administration’s defense of its proposal. 

7 

That said, I now recognize Mr. James Ogsbury, Executive 

Director of the Western Governors’ Association, based in Denver, 

Colorado, to testify. 

STATEMENT OF JAMES OGSBURY, EXECUTIVE DIRECTOR, 

WESTERN GOVERNORS’ ASSOCIATION, DENVER, COLORADO 

Mr. OGSBURY. Thank you, Chairman Fleming, Ranking Member 

Huffman, and members of the subcommittee. My name is Jim 

Ogsbury, and I am the Executive Director of the Western 

Governors’ Association. WGA is an independent, non-partisan organization representing 19 Western Governors and 3 U.S. flag 

islands. I appreciate this opportunity to share the perspective of 

Western Governors on recent Federal water-related regulatory 

proposals. 

The Western Governors have adopted a policy resolution that directly speaks to water resource management. The resolution states, 

‘‘States are the primary authority for allocating, administering, 

protecting, and developing water resources, and they are primarily 

responsible for water supply planning within their boundaries. 

States have the ultimate say in the management of their water 

resources, and are best suited to speak to the unique nature of 

Western water law and hydrology.’’ 

The Governors’ resolution is based on the prior appropriation 

doctrine, the foundation of Western water law, under which states 

are the authority to issue rights for water use. State authority 

should be the starting point of any Federal regulatory action on 

water. 

In recent years, however, several regulatory proposals have inadequately recognized this principle. Whatever the issue at hand, 

WGA’s position on Federal water regulation is the same: agencies 

must recognize state authority in water management. Again, 

quoting from the Governors’ policy resolution, ‘‘nothing in any regulatory action should be construed as intending to affect states’ primacy over the allocation and administration of their water 

resources.’’ 

This articulates the Governors’ principal concern about the 

Federal actions being discussed today. They inadequately recognize 

the fact that states have the authority and the competency to manage water resources. 

With respect to the Forest Service’s proposed directive on 

groundwater resource management, the Western Governors identified several concerns with the directive, and requested meaningful 

consultation with the states. I am pleased to report that the 

Service has informed me that it has suspended work on the directive all together, and has assured me that the agency will work 

more closely and meaningfully with states in the future. We applaud this development and this commitment. 

In the meantime, I would emphasize that states do possess sole 

and exclusive management authority for groundwater. This 

authority has been recognized by Congress and upheld by the U.S. 

Supreme Court. Congress has created limited Federal Reserve 

rights to surface water, but no Federal statute or Federal appellate 

court has ever extended those rights to groundwater. Western 

Governors differ regarding the substance of the draft Waters of the 

8 

1Western Governors’ Association. Policy Resolution 2014–03, Water Resource Management in 

the West. 2014. http://www.westgov.org/policies/301-water/597-water-resource-management-inthe-west-resolution-wga. 

United States rule issued by the EPA and the Army Corps of 

Engineers. 

All Western Governors, however, recognize the primacy of state 

authority over water resources within state boundaries. And the 

WGA is concerned that the rulemaking process did not involve 

meaningful consultation with the states during the draft rule’s development. Western Governors continue to appeal to Federal agencies to be treated as authentic partners at the earliest stages of 

rulemaking, and throughout the process, because of the potential 

impact of these rules on state authority. 

On this point it is worth noting that the EPA Science Advisory 

Board panel for the review of the agency’s water body connectivity 

report—purportedly the scientific basis for the rule—included no 

state representation. The report was developed without, therefore, 

the regulatory experience, scientific resources, and on-the-ground 

knowledge possessed by state water professionals. 

In conclusion, state authority is the cornerstone of effective water 

management in the West. This is not simply a matter of precedent 

or legal authority; states are best situated to understand their own 

unique legal frameworks, local hydrology, and citizen needs. Congress and the Supreme Court have a long-standing tradition of deference to state water law, and state authority over the resource. 

Western Governors are honored to work with the subcommittee to 

maintain that rich tradition. Thank you. 

[The prepared statement of Mr. Ogsbury follows:] 

PREPARED STATEMENT OF JAMES D. OGSBURY, EXECUTIVE DIRECTOR, WESTERN

GOVERNORS’ ASSOCIATION

Mr. Chairman and members of the subcommittee, I sincerely appreciate your invitation to testify today on behalf of the Western Governors’ Association (WGA). My 

name is James D. Ogsbury and I am the Association’s Executive Director. WGA is 

an independent, non-partisan organization representing the Governors of 19 western 

states and 3 U.S.-flag islands. I am honored to share with the subcommittee the 

perspective of the Western Governors regarding recent Federal water-related 

regulatory proposals. 

Water is a precious resource everywhere but especially in the West, where arid 

conditions—currently exacerbated by drought in many states—mean that water is 

particularly prized. Water is different in the West: our hydrology and legal structures governing water rights and usage are distinct from other parts of the Nation. 

The Western Governors have a policy resolution that directly speaks to water resource management.1 In that resolution, the Governors reiterate a fact recognized 

by both Congress and the U.S. Supreme Court: 

States are the primary authority for allocating, administering, protecting 

and developing water resources, and they are primarily responsible for 

water supply planning within their boundaries. States have the ultimate 

say in the management of their water resources and are best suited to 

speak to the unique nature of western water law and hydrology. 

The Governors’ statement is the basis of all of WGA’s work on water. The resolution is based on the prior appropriation doctrine, the foundation of western water 

law under which states are the authority to issue rights for water use. The premises 

of prior appropriation and state authority should be the starting point of any 

Federal regulatory action on water as well. In recent years, however, several regulatory proposals from the Federal agencies have inadequately recognized state 

authority. 

I will share perspectives from the Governors on each of the proposed regulatory 

directives and rules under consideration today, but my primary point will be the 

9 

2Western Governors’ Association. ‘‘Comments on FS–2014–0001—Proposed Directive on 

Groundwater Resource Management, Forest Service Manual 2560.’’ Formal comments to USDA 

Forest Service. 2 Oct. 2014. http://www.westgov.org/letters-testimony/342-water/803-commentsusfs-groundwater-proposed-directive. 3Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560. 79 

FR 25815. 6 May 2014. See Section 2560.02–01 of draft available from U.S. Forest Service, 

http://www.fs.fed.us/geology/groundwater.html. 4The proposed directive on groundwater references Forest Service Manual 2540 (FSM) which 

claims that ‘‘groundwater as well as surface water is included’’ in the Federal reserved water 

rights recognized in Winters v. U.S., 207 U.S. 564 (1908) (FSM 2541.01, September 4, 2007). 

The Winters doctrine acknowledges Federal reserved rights to water to secure adequate flows 

(as required by the Organic Act), but Winters has never been recognized as applicable to groundwater by any Federal appellate court. The Forest Service Manual language regarding 

groundwater was never available for public comment and thus was never challenged in a formal 

comment period. 5Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560. 79 

FR 25815. 6 May 2014. See Sections 2560.03–4–a, 2561–2, and 2562.1–3 of draft available from 

U.S. Forest Service, http://www.fs.fed.us/geology/groundwater.html. 6Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560. 79 

FR 25815. 6 May 2014. See Sections 2560.03–2 and 2561.1 of draft available from U.S. Forest 

Service, http://www.fs.fed.us/geology/groundwater.html. 

same for all three issues: Federal agencies must recognize state authority in water 

management. Again quoting from the Governors’ policy resolution, ‘‘nothing in any 

. . . regulatory action should be construed as . . . intending to affect states’ primacy over the allocation and administration of their water resources.’’ Therein lies 

the key concern underlying all of the pending Federal regulations relating to water: 

they inadequately recognize the simple fact that states have the authority and competency to manage water resources. 

GROUNDWATER

In formal comments to the U.S. Forest Service (Forest Service or USFS) regarding 

the agency’s proposed directive on groundwater resource management, the Western 

Governors identified several concerns with the directive and requested meaningful 

consultation with the states. I am pleased to tell you that the Forest Service is, indeed, engaging in an active conversation with western water resource managers at 

this time. WGA applauds that effort. I hope that the discussions occurring now will 

serve as a model for Federal-state consultation before proposals are issued in the 

future. 

If the Forest Service issues a revised groundwater proposal, WGA urges the agency to fully recognize and defer to the states’ management authority. As the 

Governors stated in their formal comments to USFS, the proposed directive could 

be construed to assert USFS ownership of state groundwater through use of the 

phrase ‘‘National Forest System (NFS) groundwater resources’’ throughout the document.2 This vague and insufficient acknowledgement of the states’ authority over 

groundwater is also evident in the stated objective of the proposed directive, which 

is to ‘‘manage groundwater underlying NFS lands cooperatively with states.’’ 3 This 

language misleadingly suggests that the USFS has equal authority with the states 

over groundwater management, which it does not.4

The Governors also expressed concern that the proposed directive would lead 

USFS employees to make decisions regarding special use permits based on the 

amount of water withdrawn with a state issued water right; that is, a quantity that 

the state has already authorized for diversion and depletion.5 The proposal calls on 

USFS employees to consider the effects of proposed actions on groundwater quantity 

and to require conservation strategies to limit total water withdrawals before 

issuing special use authorizations. While these provisions are surely wellintentioned, they ignore the fundamental concept of the states’ authority to determine how much groundwater can be withdrawn within their boundaries. 

Moreover, the proposed directive instructs employees to assume that surface 

water and groundwater are hydraulically connected, regardless of whether state law 

treats these resources separately.6 Not only does this disregard individual states’ 

law, it also creates potential for misinterpretation of the directive to mean that the 

USFS holds management authority for both groundwater and, by extension, the surface water to which it assumes to be hydraulically connected. 

The Forest Service has been made well aware of these concerns through comments from the Western Governors’ Association, the Western States Water 

Council—an organization for state water managers—and through individual comments from states. The agency has responded with an offer to discuss our concerns 

and is currently engaged in such discussions with members of the Western States 

Water Council. WGA encourages that dialog to proceed and we hope that if a reVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
10 

7The Chevron Questa Mine site (formerly known as the Molycorp, Inc. site) is undergoing remediation per the Comprehensive Environmental Response, Compensation, and Liability Act. 

The Western Governors’ Association issued a letter expressing concerns about the trustees’ 

claims on May 25, 2012. Twelve members of the Council of Western Attorneys General also 

issued a letter dated March 7, 2012. Both letters are available from WGA staff. 8Western Governors’ Association. ‘‘Comments on FS—FRDOC—0001–1886—Ski Area Water 

Rights on NFS Lands.’’ Formal comments to USDA Forest Service. 21 Aug. 2014. http:// 

www.westgov.org/letters-testimony/299-letters-testimony-2014/774-comments-wga-weighs-in-onforest-service-ski-area-water-rights. 9Proposed directive on Ski Area Water Rights on National Forest System Lands. 79 FR 

35513. 23 June 2014. See paragraph F–4–b of draft available from U.S. Forest Service, http:// 

www.fs.fed.us/specialuses/. 10Western States Water Council. ‘‘Attention—Docket ID No. EPA–HQ–OW–2011–0880’’ (Definition of ‘Waters of the United States’ Under the Clean Water Act). Formal comments to the 

Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). 15 Oct. 

2014. http://www.westernstateswater.org/wp-content/uploads/2012/10/Combined-CWA-WOTUSRule-Document-Final-101514.pdf. These comments were incorporated by reference into the 

Western Governors’ Association’s comments. The comments reference: Definition of ‘‘Waters of 

vised directive is issued, that state authority will serve as the cornerstone of the 

document. 

Despite these productive conversations, WGA believes it is important to reiterate 

the point that states are the sole management authority for groundwater. In 2012, 

Federal trustees asserted claims for damages to groundwater in a natural resource 

damage case in New Mexico.7 This action was unprecedented, as the Federal 

Government does not inherently own groundwater to damage. Congress has created 

Federal reserved rights to surface water, but no Federal statute or Federal appellate 

court has extended those rights to groundwater. The Federal trustees’ legal position 

thus challenged the western states’ exclusive management of the groundwater resources within their respective boundaries. 

These damage claims demonstrate a history of Federal attempts to lay claim to 

a resource that Congress has recognized—and the Supreme Court has affirmed— 

belongs to the states. It is because of this history that I believe it is important to 

speak to you today on behalf of the Western Governors. While I am hopeful about 

the outlook for a productive relationship with the USFS on the groundwater directive, other issues remain—and continue to arise—that would challenge state authority over water resources. I ask the subcommittee to help the Western Governors protect this long-standing authority. 

SKI AREA WATER RIGHTS

Another proposal from the Forest Service that could be construed as challenging 

state authority is a proposed addition to the agency’s employee handbook regarding 

ski area water rights. As the Governors stated in their formal comments on the proposal, some language within the proposed ski area directive appears to be an effort 

by USFS to utilize special use authorization as a means to manage water use and 

water rights on NFS lands.8 Any such effort must be consistent with underlying 

state law regarding the acquisition and transfer of water rights. 

Certain terms within the proposed directive are undefined, creating ambiguity for 

states and permittees. For instance, the clause requires water right holders to obtain advance written approval from the USFS before water rights can be divided, 

transferred, or modified if such action will ‘‘adversely affect’’ the availability of those 

rights to support operation of the ski area.9 The term ‘‘adversely affect’’ is not defined, nor does the paragraph explain who makes this determination. Regardless of 

its precise meaning, the overall intent of the directive is apparent: to add a layer 

of Federal regulatory oversight to state-managed water right systems on NFS lands. 

WATERS OF THE UNITED STATES

While the proposed rule from the Environmental Protection Agency (EPA) and 

Army Corps of Engineers (Corps) to redefine the jurisdiction of the Clean Water Act 

(CWA) is meant to clarify the scope of the regulation, the current proposal has, instead, created new points of ambiguity. One point lacking clarity is the matter of 

connectivity. The proposed rule would allow ‘‘shallow subsurface flow connection’’— 

a term it does not define—to establish jurisdiction between surface waters. While 

groundwater itself is not included in the rule, the document needs measures to reiterate that groundwater is indeed solely the purview of the states. 

As the Western States Water Council noted in its comments on the proposed rule, 

the preamble of the document explicitly states that ‘‘nothing . . . would cause the 

shallow subsurface connections themselves to become jurisdictional.’’ 10 However, the 

11 

the United States’’ Under the Clean Water Act. 79 FR 22269, pg. 22210. 21 Apr. 2014 (to be 

codified at 40 CFR Part 230.3). 11Western Governors’ Association. ‘‘Comments on Docket ID No. EPA–HQ–OW–2011–0880— 

Definition of ‘Waters of the United States’ Under the Clean Water Act.’’ Formal comments to 

EPA and the Corps. 14 Nov. 2014. http://www.westgov.org/letters-testimony/342-water/837- 

comments-Governors-submit-comments-on-definition-of-waters-of-the-united-states-under-theclean-water-act. 12 EPA. ‘‘Members of the Panel for the Review of the EPA Water Body Connectivity Report.’’ 

Accessed 17 Oct. 2014. http://yosemite.epa.gov/sab/sabpeople.nsf/WebExternalSubCommittee 

Rosters?OpenView&committee=BOARD&subcommittee=Panel%20for%20the%20Review%20of% 

20the%20EPA%20Water%20Body%20Connectivity%20Report. 

preamble will not be published once the rule is codified. Without this clarifying 

statement, confusion could arise regarding the jurisdictional status of subsurface 

water. 

Furthermore, the EPA’s Scientific Advisory Board report on the connectivity of 

water indicated support for using connectivity as a scientific basis for even broader 

CWA jurisdiction than what is now suggested under the proposed rule. Though that 

recommendation will not necessarily change the content of the final rule, the implications are troubling. Legal authority and precedent are at the core of the question 

of Federal jurisdiction under the CWA. Both laws and hydrology vary from state to 

state. As the Governors stated in their formal comments on the proposed rule, the 

best policy when considering the intersection of science and law is one that allows 

for regional flexibility and acknowledges the role of state experts who live with— 

and intimately understand—the issue at hand.11

It is worth noting that the SAB panel for the review of the EPA water body 

connectivity report included no state representatives.12 The report was therefore developed without the regulatory expertise, scientific resources and on-the-ground 

knowledge possessed by state professionals. EPA inadequately recognized the role 

of the states in forming its SAB panel. Likewise, the agency’s reasoning that its proposed rule is needed to ensure protection of waters that we all value inadequately 

recognizes the role of the states in ensuring water quality. 

CONCLUSION

State authority is the cornerstone of effective water management in the West. 

This is not simply a matter of precedent; states are best situated to understand 

their own unique legal frameworks, local hydrology and citizen needs. Federal efforts to assume greater authority over water jeopardize the distinct advantages of 

having on-the-ground resource management. 

Even though legal precedent is not the only justification for state water management, it is one of the most powerful mechanisms Governors have to maintain their 

authority. Congress and the Supreme Court are squarely on the side of the states. 

That management authority is something that Western Governors intend to fight 

for vehemently and vocally. We welcome the opportunity to partner with the subcommittee to maintain the states’ authority on water. 

QUESTIONS SUBMITTED FOR THE RECORD BY THE HON. DAN NEWHOUSE TO

JAMES OGSBURY, WESTERN GOVERNORS’ ASSOCIATION

Question 1. Is it true that the states have authority to determine how much 

groundwater can be withdrawn within their boundaries? 

Answer. Yes. The U.S. Supreme Court held in California Oregon Power Co. v. 

Beaver Portland Cement Co., 295 U.S. 142 (1935), that states have exclusive authority over groundwater, finding that following the Desert Land Act of 1877 ‘‘. . . all 

non-navigable waters then a part of the public domain became publici juris, subject 

to the plenary control of the designated states. . . .’’ 

Question 2. When it comes to surface water withdrawals on some Federal lands, 

the Federal Government can have reserved water rights on these withdrawals. Does 

the Federal Government have reserved water rights on groundwater? 

Answer. No. Certain Federal agencies have reserved water rights provided by the 

Organic Administration Act of 1897 and affirmed by the U.S. Supreme Court in 

Winters v. U.S., 207 U.S. 564 (1908). The reserved rights recognized in the Winters 

doctrine have never been recognized as applicable to groundwater by Congress or 

any Federal appellate court. 

12 

1Western Governors’ Association. ‘‘Comments on FS–2014–0001—Proposed Directive on 

Groundwater Resource Management, Forest Service Manual 2560.’’ Formal comments to USDA 

Forest Service. 2 Oct. 2014. http://www.westgov.org/letters-testimony/342-water/803-commentsusfs-groundwater-proposed-directive. 2Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560. 79 

FR 25815. 6 May 2014. See Section 2560.02–01 of draft available from U.S. Forest Service. 

http://www.fs.fed.us/geology/groundwater.html. 

Question 3. Does the Forest Service Groundwater Directive give more power to the 

Federal Government on groundwater at the expense of states? What will be the impact of this change? 

Answer. As the Governors stated in their formal comments to USFS, the proposed 

directive could be construed to assert USFS ownership of state groundwater through 

use of the phrase ‘‘National Forest System (NFS) groundwater resources’’ throughout the document.1 This vague and insufficient acknowledgement of the states’ 

authority over groundwater is also evident in the stated objective of the proposed 

directive, which is to ‘‘manage groundwater underlying NFS lands cooperatively 

with states.’’ 2 This language misleadingly suggests that the USFS has equal authority with the states over groundwater management, which it does not. Because of differences in state laws, the unique hydrological characteristics of states and other 

considerations, states continue to be the appropriate entity to manage groundwater 

resources. 

The Western Governors’ Association is pleased that the U.S. Forest Service has 

stopped its work on the proposed directive regarding groundwater resource management, which will help avoid unforeseen impacts. 

Dr. FLEMING. Thank you, Mr. Ogsbury. 

Next we have the Honorable Ron Sullivan, an elected board 

member of the Eastern Municipal Water District in Perris, 

California. 

You are recognized for 5 minutes, sir. 

STATEMENT OF RON SULLIVAN, BOARD OF DIRECTORS, 

DIVISION 4, EASTERN MUNICIPAL WATER DISTRICT, PERRIS, 

CALIFORNIA 

Mr. SULLIVAN. Thank you, Mr. Chairman, Chairman Fleming, 

and Ranking Member Huffman from California, members of the 

subcommittee. We thank you for the opportunity to testify today. 

My name is Ron Sullivan, and I am speaking today on behalf of 

the National Water Resources Association. 

The NWRA members are the people who deliver safe drinking 

water and irrigation water, and we ensure that the objectives of 

the Clean Water Act are met on a daily basis. I have served 12 

years on the board of Eastern Municipal Water District in Riverside County, California. We are a leader in efficient water management, most particularly reuse and reclamation of water, also 

known as water recycling. 

Providing water services in my district requires a regular engagement of at least 28 Federal, state, and local agencies. Water 

travels a long pipeline of government regulation before it comes out 

of the tap or is returned to a river or, in our case, is recycled for 

beneficial use. We support the goals of the Clean Water Act. However, the proposed rule to redefine ‘‘Waters of the U.S.’’ is problematic. It will make it harder for places like my home state of 

California to meet the water needs and deal with the drought as 

it currently exists. 

The subcommittee should be particularly concerned with the potential impacts of this rule on water delivery systems operated by 

13 

the Bureau of Reclamation and its customers. The current drought 

has emphasized the importance of water supply. The Administration’s national climate assessment in 2014 declared—‘‘Climate 

changes pose challenges for an already parched region that is expected to get hotter and, in its southern half, significantly drier. 

Increased heat and changes to rain and snow pack will send ripple 

effects throughout the region’s critical agricultural section, affecting the lives and economies of approximately 15 million.’’ 

NWRA shares this concern, but we are worried that the proposed 

rule will make it more difficult to meet the water needs and challenges proposed by the changing climate. Recycled water is an environmentally friendly method to utilize local water resources. Water 

recycling storage and conveyance facilities are frequently located in 

a flood plain or otherwise adjacent to jurisdictional water, where 

all waters would be categorically defined as ‘‘Waters of the U.S.’’ 

The proposed rule’s wastewater treatment exemption would not extend to an associated water recycling facility, because such facilities are not expressly designed to meet the requirements of the 

Clean Water Act, a condition stipulated in the rule. 

California has established a statewide goal of recycling 2.5 million acre-feet of water by 2030. In the year 2000, we attained about 

25 percent of that, which is going to make the remaining part of 

it very difficult to get 2.5 million acre-feet, especially if the permitting on this rule would take some of these districts another 3 to 

8 years to get through the process. 

The proposed rule impact on recycled water projects can be illustrated in my own water district. At Eastern Municipal Water 

District, we utilize 100 percent of the recycled water that we generate in all four of our plants. Recycled water constitutes 

30 percent of our entire water supply portfolio, over 38,000 acrefeet annually. And this is a year-in, year-out, day-in, day-out flow 

that we can always depend on. 

We are concerned that, under the proposed rule, 10 of Eastern 

Municipal Water District’s recycled storage facilities could become 

jurisdictional, because they are located in flood plains, or adjacent 

to jurisdictional waters, and may possess a subsurface hydrologic 

connection to a jurisdictional water. After becoming jurisdictional, 

regular maintenance and vegetation removal of these 500 acres of 

ponds would require an additional 404 permit, as well as a Section 

401 permit. This added regulatory burden could hamper us in the 

development of this drought-proof water supply that we so dearly 

depend on. 

We are concerned with the Forest Service. We know that it has 

been put on the table a little bit. But we did have our concerns because we do have water rights out of the flow that comes out of 

the national forest, and it is of deep concern to us, because it is 

highly potable water, and it is terrific water. Thank you. 

[The prepared statement of Mr. Sullivan follows:] 

PREPARED STATEMENT OF RONALD SULLIVAN, EASTERN MUNICIPAL WATER DISTRICT, 

ON BEHALF OF NATIONAL WATER RESOURCES ASSOCIATION

Mr. Chairman, Ranking Member Huffman, members of the committee, thank you 

for this opportunity to testify today regarding the impact that Federal actions have 

on water and power users and landowners. My name is Ron Sullivan, and I am 

speaking today on behalf of the National Water Resources Association. NWRA memVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
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bers are agricultural and municipal water providers, state associations, and individuals dedicated to the conservation, enhancement and efficient management of water. 

We are the people who deliver safe drinking water and irrigation water, and we ensure that the objectives of the Clean Water Act are met. 

I have served 12 years on the board of Eastern Municipal Water District 

(‘‘Eastern MWD’’) in Riverside County, California. My District provides water and 

wastewater services to 785,000 people in the growing Inland Empire. We are a leader in efficient water management, most particularly reuse and reclamation of water, 

also known as water recycling, where we are considered industry leaders. Providing 

water services in my District requires the regular engagement of at least 8 Federal 

agencies, 5 state agencies, several county agencies, and at least 15 municipal agencies. Water travels a long pipeline of government regulation before it comes out of 

the tap or is returned to a river—or in our case, is recycled for beneficial use. 

The Federal Government plays a significant but not the only role in ensuring an 

adequate and safe supply of water. In fact, in Eastern MWD’s case, the Federal 

Government’s contribution to funding water infrastructure for supply, treatment, 

and environmental benefits is minuscule, at less than 2 percent of the capital investment we make in people and habitats. Yet Federal agencies too often act as if 

they alone are charged with managing resources and protecting public interest in 

water. 

I and my fellow board members, the public officials who treat and serve water, 

and the elected and appointed public servants who manage water resources across 

the country have all taken oaths to protect the public and its investment in water. 

We are partners with the Federal Government in providing this essential public 

service, and we need to be integrated into the decisionmaking process for policies 

that affect our mandate. When that process short-circuits local and state government involvement, the public suffers cost increases, bureaucratic delays, and ultimately a degraded, less efficient level of service to the public. This subcommittee 

has a degree of jurisdiction over two recent examples of the breakdown between 

Federal and local engagement: 

WATERS OF THE UNITED STATES

The first of these examples is the proposed rule published by the U.S. 

Environmental Protection Agency and the U.S. Army Corps of Engineers last April 

to redefine ‘‘Waters of the U.S.’’ that are subject to the Clean Water Act. The rule 

was recently referred to the Office of Management and Budget for final review, after 

the agencies sifted through more than one million public comments. I understand 

that most comments from public agencies expressed opposition to the rule, citing 

concerns about the proposed rule’s impact on storm water, waste water and recycled 

water facilities, conveyance ditches, and water delivery systems. Under the agencies’ 

proposal, jurisdiction of the rule would be expanded to include all waters, not just 

wetlands, adjacent to traditional navigable waters and undefined riparian areas and 

floodplains. Without a clear definition for a ‘‘significant’’ nexus to traditional navigable waters, ephemeral and intermittent streams would be considered categorically 

jurisdictional. During numerous congressional hearings with administration officials, it became clear that Federal regulators failed to adequately confer with and 

accommodate concerns raised by state and local governments. NWRA is concerned 

that the proposed rule misses the mark. As drafted it does not provide the additional clarity and certainty that water users and others have asked for and will 

make meeting current and future water supply needs more difficult. In fact, we are 

concerned that the cost of compliance will far out-weigh any marginal benefit in 

water quality. 

This subcommittee should be particularly concerned with the potential impacts of 

this rule on water delivery systems owned and operated by the Bureau of 

Reclamation. Water delivery systems in the 17 Reclamation states will be subject 

to new permitting requirements and additional infrastructure costs as these facilities are redefined as waters of the United States. Certainly the current drought 

across much of the West has emphasized the importance of water storage and delivery and the need to maintain the capacity and operating efficiency and flexibility 

of these systems. The Administration’s own National Climate Assessment in 2014 

declared: 

The Southwest is the hottest and driest region of the United States, where 

the availability of water has defined its landscapes, history of human settlement, and modern economy. Climate changes pose challenges for an already 

parched region that is expected to get hotter and, in its southern half, significantly drier. Increased heat and changes to rain and snowpack will send 

ripple effects throughout the region’s critical agriculture sector, affecting 

15 

the lives and economies of 56 million people—a population that is expected 

to increase 68 percent by 2050, to 94 million. Severe and sustained drought 

will stress water sources, already over-utilized in many areas, forcing increasing competition among farmers, energy producers, urban dwellers, and 

plant and animal life for the region’s most precious resource. 

The Administration is correct to express concern about meeting water supply 

needs in coming decades. NWRA shares this concern. However, we are genuinely 

concerned that the proposed rule will make it more difficult to meet water needs. 

We strongly support the Clean Water Act and the need for a rule that clarifies jurisdiction of the Act. We do not support this proposed rule and ask that Congress take 

action to ensure a more inclusive rulemaking process. 

In order to meet water supply and wastewater treatment needs, as well as storm 

water control requirements, municipal utilities and irrigation districts must make 

substantial infrastructure investments, often requiring creative and innovative approaches. These investments will include new or expanded storage reservoirs; water 

reuse facilities, desalinization plants; water collection, delivery, and distribution 

pipelines; pump-back projects; groundwater recharge facilities; and reverse osmosis 

water treatment plants. Many of these facilities will, of necessity, be in close proximity to traditional navigable waters, in a riparian area or floodplain, and include 

features that meet the definition of a ditch, tributary or wetland. Any one of those 

conditions would subject the entire system or elements thereof to higher regulatory 

requirements, additional bureaucratic review, and much greater cost. 

As the demand for water continues to rise, NWRA’s members are committed to 

undertaking a variety of innovative efforts to meet this need. These efforts include 

extensive water conservation as well as water recycling. Recycled water, which is 

generated from the treatment and purification of wastewater, is a safe, effective and 

environmentally friendly method to fully utilize local water resources, and reduces 

the demand for imported water in the arid Southwest. The processes and infrastructure to treat, store and distribute recycled water are costly, but are becoming increasingly feasible in areas of the country where groundwater and surface water 

sources are strained and the cost or availability of imported water is prohibitive. 

Water authorities across the country are investing billions of dollars in infrastructure to utilize this drought-proof water resource. My water district alone has made 

$188 million in capital investments in its recycled water system, and has $154 million of recycled water investments planned over the next 5 years. Treatment and 

distribution costs of recycled water are already high, making this valuable resource 

marginally cost-effective in some places. Any significant increase in regulation will 

escalate the cost of utilizing this water and discourage its further development. 

Under the proposed rule, water reclamation and reuse facilities are not exempt 

from being designated ‘‘Waters of the U.S.’’ Further, ditches that transport effluent 

or discharged water could also be considered a ‘‘tributary’’ under the proposed rule 

and could be categorically regulated. The proposed rule defines as a ‘‘tributary’’ any 

natural or man-made feature that has a bed, bank, ordinary high water mark, and 

conducts flow to another water. In addition, water recycling storage and conveyance 

facilities are frequently located in a floodplain or otherwise adjacent to jurisdictional 

water where all waters are categorically defined as ‘‘Waters of the U.S.’’ While the 

proposed rule includes an exemption for artificial lakes and ponds used exclusively 

for settling basins, such reuse facilities can function or take on the characteristics 

of a wetland and can receive and discharge water into surface ditches that are not 

exempt. The proposed rule’s wastewater treatment exemption would not extend to 

an associated water recycling facility because such facilities are not expressly ‘‘designed to meet the requirements of the Clean Water Act;’’ a condition stipulated in 

the rule. Many states have acknowledged the value of recycled water. Some states 

like California have established a statewide goal (California Water Plan) of recycling 

2.5 million acre feet (MAF) of water by 2030. In 2009, 0.67 MAF was recycled; increasing to 2.5 MAF is ambitious, but necessary to help drought-proof the state. 

Currently 3.5 MAF of treated wastewater is being discharged to the ocean, and not 

beneficially reused. 

The proposed rule’s impact on recycled water projects can be illustrated in my 

own water district. Eastern MWD is a water and wastewater agency that utilizes 

100 percent of the recycled water it generates, with recycled water constituting 30 

percent of our entire water supply portfolio—over 38,000 acre feet annually. This 

critical supply is used for municipal irrigation and industrial uses, and is also used 

to irrigate over 10,800 acres of production agriculture in our service area. In recent 

years, EMWD in cooperation with Federal partners at the Bureau of Reclamation, 

has developed 5,714 acre-feet of seasonal storage ponds, 16 million gallons of elevated storage tanks (to pressurize the system), over 200 miles of recycled distribuVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
16 

tion water pipelines, and 19 pumping facilities. EMWD currently has greater 

demand than supply for recycled water, and in response has prepared unique allocations for customers. 

We are concerned that under the proposed rule, 10 EMWD recycled water storage 

sites could become jurisdictional because they are located in floodplains, are adjacent to jurisdictional waters, and may possess a subsurface hydrologic connection to 

jurisdictional waters. After becoming jurisdictional, regular maintenance and vegetation removal of these 500 acres of ponds would require Section 404 Army Corps 

of Engineers permits as well as Section 401 water quality permits from the state. 

This added regulatory burden would not only increase the cost of recycled water, 

and potentially delay further development of recycled water storage ponds, but could 

hamper the development of this drought-proof water supply. Numerous agencies in 

the arid Southwest share this scenario, concern, and dilemma. 

Despite verbal assurances that the rule with not regulate groundwater, we also 

remain concerned that groundwater banking and recharge projects will be enveloped 

by this rule. Multiple NWRA members operate groundwater banking and recharge 

projects to capture and store unused irrigation water and treated effluent from municipal treatment plants. Some of these shallow banking aquifers are adjacent to 

rivers. The agencies should provide additional clarity in the rule that groundwater, 

shallow subsurface aquifers, and groundwater banking and recharge projects will 

not be considered waters of the United States. 

My testimony is largely focused on municipal water supplier concerns, and I understand that other witnesses will discuss agricultural water user perspectives in 

depth. However, it is vital I note that the proposed ‘‘Waters of the United States’’ 

rule is also very concerning to NWRA’s agricultural water providers. The proposed 

rule would largely capture irrigation features that are currently not jurisdictional. 

Last week Administrator McCarthy stated in a blog post that the EPA would address these concern in the revised rule. This statement encourages us. However, we 

are not wholly confident that agricultural concerns will be addressed because similar assertions about protecting agriculture were made when the rule was unveiled 

last April. 

In summary, we need Congress to act on this proposed rule. The scope of the proposed rule is so broad and its potential impacts are so great, that we cannot entrust 

the Federal agencies to address all the concerns that have been raised with this 

rule. And Congress cannot wait and hope that reason will prevail in a final rule. 

Under the Clean Water Act, water managers are civilly and criminally liable for violations, and any citizen can file suit for a perceived non-compliance. We are vulnerable to litigation the very day this rule is finalized. NWRA members would prefer 

to invest public funds in infrastructure and environmental enhancement rather than 

litigation. Legislation that mandates intergovernmental and stakeholder involvement in defining waters of the United States will do far more to protect the public 

and the environment and provide certainty to water managers and users. 

FOREST SERVICE GROUNDWATER MANAGEMENT DIRECTIVE

The second example of the breakdown between Federal and local agency engagement is the Forest Service’s Proposed Directive on Groundwater Resource Management. This is deeply concerning to many of NWRA’s members because it creates a 

great deal of uncertainty about the management and use of groundwater. With limited exception Congress and the Courts have largely relegated groundwater management authorities to the states. The Groundwater Directive creates a number of 

concerns from a state’s rights perspective and from a practical management perspective. Our fundamental concern is that the Forest Service does not have the statutory 

authority to establish a groundwater directive. However, as an on-the-ground water 

provider, I will focus my comments today on the practical challenges and uncertainties that this proposal would create from a water supply perspective. 

Eastern MWD is designated by the state of California as the Monitoring Entity 

to collect and report regional groundwater data throughout the California Statewide 

Groundwater Elevation Monitoring program. The agency also has existing water 

rights and water supply components that are adjacent to, or downstream from, 

Forest Service lands. As a result, Eastern MWD is uniquely positioned to provide 

insight as both a regional agency engaged by the state in aspects of groundwater 

management, and as a water provider with resources that could be directly affected 

by the proposed groundwater directive. 

Like many water providers, Eastern MWD manages a broad portfolio of water 

supply resources to meet municipal, industrial and agricultural demands. As previously noted, we utilize surface water supplies, recycled water supplies and groundwater supplies. In relation to groundwater, Eastern MWD has several important 

17 

components that could be significantly affected by the Forest Service Groundwater 

Directive. We accrue a water supply credit for groundwater that seeps into the San 

Jacinto Tunnel, which is a regional water transmission facility that brings imported 

water into our region. The construction of the San Jacinto Tunnel intercepted a local 

aquifer in which groundwater seeped. Eastern MWD had been pumping this groundwater and as a result, negotiated an agreement with the Tunnel owner to provide 

a credit for this seepage. This water is important because Eastern MWD is currently 

credited for the roughly 4,588 acre feet of tunnel seepage water annually. However, 

because the Tunnel is in the proximity of Forest Service land, we are concerned that 

the proposed groundwater directive could create an avenue for the Federal Government, through the Forest Service, to make a claim against this water supply. Additionally, Eastern MWD has water rights in the San Jacinto River watershed which 

begins in Forest Service land. We are concerned that the proposed groundwater directive would not only limit our ability to manage this resource, but could adversely 

affect our water rights. 

The nature of groundwater varies significantly from one region of the country to 

another. Water rights and legal agreements affecting surface and groundwater can 

be complicated. The proposed directive fails to recognize the nuances of geography 

and existing agreements and instead provides blank assumptions that may be detrimental to many long-standing water rights holders. 

We are seeking assurances from the Forest Service that western water rights and 

management abilities will not be limited by this proposal. NWRA’s concerns are significant enough that it has requested a withdrawal of this ambiguous and farreaching proposal. We understand that the Forest Service has pulled back from this 

proposal and has indicated that they will try to address state and water user concerns. As with explanations provided by the Federal agency regarding our concerns 

with the Clean Water Act rule, we are heartened by this news, but remain concerned that agency objectives might short-change consultations with state and local 

governments. We also want to emphasize that the Forest Service needs to improve 

its outreach efforts to stakeholders. Prior to issuing this directive, the Forest Service 

failed to reach out to either water users or the states. 

Respecting the role of states in water management and respecting state allocated 

water rights is fundamental to meeting current and future water needs. Any future 

proposal needs to consider these facts and ensure that water rights and the role of 

states are clearly protected. 

CONCLUSION

Again, I would like to thank the committee for holding this hearing and inviting 

NWRA to share its views. We have enjoyed long and constructive relationships with 

numerous Federal agencies responsible for water supply, management, and protection. And we fully anticipate maintaining and enhancing those relationships in the 

future. However, we are concerned when Federal agencies presume a disproportionate share of authority or influence, neglecting other water partners at the state 

and local levels. We appreciate the oversight and, when necessary, the intervention 

in Congress to restore balance. Thank you for accepting that responsibility. We look 

forward to working with you and the Federal agencies as we protect the public and 

its investments in water resources and infrastructure. 

Dr. FLEMING. Thank you, Mr. Sullivan. 

The Chair now recognizes Mr. Mauck, Commissioner for 

District 1 of Clear Creek County, Colorado, to testify. 

You have 5 minutes, sir. 

STATEMENT OF TIMOTHY MAUCK, COMMISSIONER, 

DISTRICT 1, CLEAR CREEK COUNTY, COLORADO 

Mr. MAUCK. Thank you, Chairman Fleming, Ranking Member 

Huffman, members of the committee. My name is Timothy Mauck, 

Commissioner from Clear Creek County, Colorado. Thank you for 

this opportunity to convey how important clean water is for my 

community. The proposed clean water rule will protect the headwaters, tributaries, and wetlands that are essential for providing 

the high-quality water that supports the hunting, fishing, rafting, 

18 

and outdoor recreation that are an economic backbone for my 

community. 

Clean water from streams and wetlands also provides drinking 

water for thousands of our residents. Clear Creek County is truly 

a headwater county. We are bordered by the Continental Divide 

and provide clean water for downstream communities within the 

Denver Metropolitan Area. We face the legacy impacts of historic 

silver and gold mining. We have struggled with maintaining water 

quality due to mine runoff, and have worked consistently to treat 

contaminated water to reclaim abandoned mine sites. 

Clear Creek has made a remarkable rebound over the past 30 

years, as we have made progress, like so much of the country, toward the Clean Water Act goals of fishable and swimmable waters. 

In addition, these strides in water quality, while important in 

their own right, have also made Clear Creek County an outdoor 

recreation destination. Clear Creek hosts the second-most commercial rafting trips in Colorado. White water rafting alone has a total 

economic impact to the community of approximately $23 million. 

Hunting and angling generates a total economic impact of nearly 

$6 million to the county. This is not only the story of Clear Creek, 

but also across Colorado and the Nation. 

According to the National Shooting Sports Foundation, hunting and angling’s total economic impact is $192 billion. Outdoor recreation in Colorado generates $13.2 billion, and employs more than 

124,000 people. Across the country it generates $646 billion and 6.1 

million jobs. Many of these jobs are dependent on clean water, and 

will benefit from the EPA and Army Corps of Engineers’ efforts. 

In fact, 55 percent of stream miles in the historic range of native 

trout in our state are intermittent or ephemeral, and would be 

clearly protected by the clean water rule. Even with seasonal flow, 

these waters provide habitat for trout, or simply maintain the 

water quality needed by fish in downstream rivers. 

As an avid waterfowler, I have spent many cold mornings in the 

wetlands of sloughs and creeks feeding the South Platte, and know 

how important it is to protect these places from irresponsible 

development. 

As an elected official with the responsibility of looking after our 

county’s finances, I am concerned about undue regulatory burden. 

However, the rule will restore jurisdiction to fewer of the waters 

than had been covered from the passage of the Clean Water Act in 

1972, until the first Supreme Court decision in 2001 weakened the 

law. 

During that time period, the population of Clear Creek increased 

from approximately 5,900 to 9,400. Colorado’s population nearly 

doubled from 2.2 million to 4.4 million. The state’s gross domestic 

product increased more than tenfold, from $13.6 to $181 billion. 

Furthermore, natural gas production increased from 116 trillion 

cubic feet to 817 trillion cubic feet, and coal production increased 

from 5,500 short tons to 33,000 tons. 

Colorado and Clear Creek County are proof that the Clean Water 

Act is not the barrier to growth critics would have you believe. Opponents should realize that protecting intermittent and ephemeral 

streams in wetlands is fully consistent with population growth, 

energy production, and economic development writ-large. While I 

19 

understand the need for further clarity on some outstanding issues 

in the proposed rule, so do the EPA and Corps of Engineers. 

The agencies held more than 400 stakeholder meetings, the public comment period, and received over 1 million comments— 

86 percent of them were positive, in support of the proposal. And 

the agencies have clearly stated that this will lead to changes in 

the final rule. These changes should make the law clearer and 

more predictable for all parties, while protecting the waters that 

matter most. 

My county is expected to grow in the future. An expansion of 

Interstate 70 is underway and, along with it, growth in home and 

road development. In addition, we face the challenge of economic 

diversification as we approach the end of life of the Henderson 

Mine, which provides a large portion of our property tax base. 

There are hundreds of mine claims that exist in undeveloped or 

under-developed areas, many of which are very near headwater 

streams. The rule will help us balance the need for diversification, 

while providing the necessary protection for streams and wetlands 

as we encourage development of all kinds. 

I am ready to have my county’s headwaters and wetlands clearly 

protected under the Clean Water Act. 

[The prepared statement of Mr. Mauck follows:] 

PREPARED STATEMENT OF TIMOTHY MAUCK, COMMISSIONER, CLEAR CREEK COUNTY, COLORADO

My name is Timothy Mauck, a commissioner of Clear Creek County in Colorado. 

I was elected to the Clear Creek Board of County Commissioners in 2010 and reelected in 2014. 

Clear Creek County is a historic gold and silver mining community located in the 

Rocky Mountains 30 minutes west of Denver. We have a population of about 9,000 

residents, and are the proud home of four 14,000 foot peaks, the Loveland Ski Area, 

and the Henderson Mine—North America’s largest producer of primary 

molybdenum. 

As Commissioner, I have focused on economic development, enhancing Clear 

Creek’s recreational and tourism industries and working to bring about sensible development strategies to improve transportation along the Interstate 70 Mountain 

Corridor. I am passionate about hunting and angling and am an active member of 

Trout Unlimited and Ducks Unlimited, and a 4–H youth archery instructor. 

I also serve on the boards of the Denver Regional Council of Governments, 

Jefferson Center for Mental Health, and as chair of the Clear Creek Greenway 

Authority and Clear Creek Fire Authority boards. 

As an elected county commissioner, I am testifying to convey how important clean 

water is for my community. The proposed clean water rule will protect the headwaters, tributaries, and wetlands that are essential for providing the high quality 

water that supports the hunting, fishing, rafting, and outdoor recreation that are 

an economic backbone for my community. Clean water from streams and wetlands 

also provides drinking water for thousands of our residents. 

Clear Creek County is truly a headwater county. We are bordered by the continental divide and provide clean water for downstream communities within the 

Denver Metropolitan Area. In fact, Clear Creek flows right into the Coors Brewing 

Company brewery in Golden, Colorado, before merging into the South Platte River 

which provides drinking water for Colorado residents and irrigation for our agricultural industries. We are also facing the legacy impacts of historic silver and gold 

mining in the area. We have struggled with maintaining water quality due to mine 

runoff, and have worked consistently to treat contaminated water and reclaim abandoned mine sites. I know too well the impacts of contaminated water and the costs 

and time it takes to mitigate and treat it. I also know Clear Creek has made a remarkable rebound over the past 30 years, as we have made progress—like so much 

of the country—toward the Clean Water Act goals of fishable and swimmable 

waters. 

In addition, these strides in water quality, while important in their own right, 

have also made Clear Creek County an outdoor recreation destination. By river segVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
20 

1 Commercial River Use in the State of Colorado: http://www.croa.org/wp-content/uploads/2015/ 

01/2014-Commercial-Rafting-Use-Report.pdf. 2 Hunting and Fishing: Bright Stars of the American Economy: http://www.nssf.org/PDF/ 

research/bright%20stars%20of%20the%20economy.pdf. 3The Outdoor Recreation Economy: http://outdoorindustry.org/advocacy/recreation/ 

economy.html. 4Waters of the United States, Colorado: http://www.tu.org/sites/default/files/ 

colorado_wotus.pdf. 5 U.S. Census Data: https://www.google.com/publicdata/explore?ds=kf7tgg1uo9ude_&met_ y=population&idim=county:08019&hl=en&dl=en#!ctype=l&strail=false&bcs=d&nselm=h&met_ 

y=population&scale_y=lin&ind_y=false&rdim=country&idim=county:08019&idim=state:08000& 

ifdim=country&hl=en_US&dl=en&ind=false. 6 Real Gross Domestic Product By State: http://www.eia.gov/state/seds/sep_use/notes/ 

use_gdp.pdf. 7State Energy Data System 1960–2012: http://www.eia.gov/state/seds/seds-datacomplete.cfm?sid=CO. 

ment, Clear Creek hosts the 2nd most commercial rafting trips in Colorado, behind 

only the Arkansas River which is the number one rafting destination in the world. 

Whitewater rafting alone has a total economic impact to the community of approximately $23 million.1 Hunting and angling generate a total economic impact of nearly $6 million to the county. This is not only the story of Clear Creek but also across 

Colorado and the Nation. According to the National Shooting Sports Foundation, 

hunting and angling’s total economic impact is $192 billion.2 Outdoor recreation in 

Colorado generates $13.2 billion and employs more than 124,000 people. Across the 

country, it generates $646 billion and 6.1 million jobs.3 Many of these jobs are dependent on clean water, and will benefit from the EPA and Army Corps of 

Engineers’ efforts. 

In fact, 55 percent of stream miles in the historic range of native trout in our 

state are intermittent or ephemeral, and would clearly be protected by the clean 

water rule. The upper stretches of the world famous Arkansas River nearby are 68 

percent intermittent or ephemeral.4 Even with seasonal flow, these waters provide 

habitat for trout, or simply maintain the water quality needed by fish in downstream rivers. As a duck hunter, too, I’ve spent many cold mornings in the wetlands, sloughs, and creeks feeding the South Platte and know how important it is 

to protect these places from irresponsible development. 

As an elected official with the responsibility of looking after our county’s finances 

I am also concerned about undue regulatory burden. I have heard concerns from 

other county commissioners about the rule’s potential for overreach. While I take 

their opinions very seriously, I respectfully disagree with their position. The rule 

will restore jurisdiction to fewer of the waters than had been covered from the passage of the Clean Water Act in 1972 until the first Supreme Court decision in 2001 

weakened the law. During that time period, the population of Clear Creek County 

increased from approximately 5,900 to 9,400. Colorado’s population nearly doubled 

from 2.2 million to 4.4 million.5 The state’s gross domestic product increased more 

than tenfold from $13.6 to $181 billion.6 Furthermore, natural gas production increased from 116 trillion cubic feet to 817 trillion cubic feet, and coal production 

increased from 5,500 short tons to 33,000 tons.7

Colorado and Clear Creek County are proof that the Clean Water Act is not the 

barrier to growth critics would have you believe. If opponents of the rule are worried 

about returning to the previous jurisdiction of the Clean Water Act, they should 

realize that protecting intermittent and ephemeral streams and wetlands is fully 

consistent with population growth, energy production, and economic development 

writ-large. 

Indeed, the rule should help provide more regulatory certainty and more timely 

review of permit applications. Currently, the need for case-by-case jurisdictional determinations on intermittent and ephemeral streams—nearly all of which are ultimately found jurisdictional—creates significant backlogs and delays. By clarifying 

and simplifying the question of jurisdiction for these tributaries and adjacent wetlands, applicants should be able to more quickly get the substance of their proposals 

reviewed without those lengthy delays created by doing case-by-case jurisdictional 

analyses. 

Another consistent criticism of the rule has been about process. A multitude of 

interests have called for everything from a complete withdrawal of the rule, to a 1- 

year delay, to requesting another comment period. While I understand the need for 

further clarity on some outstanding issues, so do the EPA and Corps of Engineers. 

The agencies held more than 400 stakeholder meetings during the public comment 

period and received over 1 million comments—86 percent of them were positive in 

support of the proposal—and the agencies have clearly stated that this input will 

21 

8Local officials support the administration’s proposal to protect clean water: http:// 

org.salsalabs.com/o/2155/p/salsa/web/common/public/content?content_item_KEY=12837. 

lead to changes, consistent with the law and science, in the final rule. For instance, 

the EPA has said it never intended to give the impression the rule would regulate 

roadside ditches or erosional features on farm fields, and will fix those in the final 

rule. These changes should make the law clearer and more predictable for all parties while protecting the water that matters most. 

The ongoing discussion about the Clean Water Act’s jurisdiction is not a new one. 

We have been dealing with the impacts of unclear jurisdiction for nearly a decade 

and a half. We have seen a series of guidance and rulemakings, both proposed and 

finalized, as well as numerous court cases. The issues and positions of interested 

parties have been widely known for years. I fail to see how another year or even 

60 days will resolve the outstanding issues for all parties. In the meantime I am 

ready to have my county’s headwaters and wetlands clearly protected under the 

Clean Water Act. 

I am not alone as a local elected official who supports this rule. More than 280 

local elected officials signed letters in support of this rule during the comment period. Cities as large as Pittsburgh, Philadelphia, Austin, Boston and Baltimore 

passed resolutions or submitted comments in favor of the rule, as did counties from 

New Jersey to Michigan.8 Collectively, a non-exhaustive count of the residents 

whose elected officials support clean water on their behalf exceeds 10 million people, 

a strong showing on top of the more than 800,000 supportive comments the EPA 

received. Those are impressive numbers to someone who represents a county of only 

9,500 people, but we share their passion for protecting our waters. 

Although we are small, we are expected to grow in the future. An expansion of 

Interstate 70 is underway, and along with it a growth in home and road development for those from nearby metropolitan areas seeking solace in the mountains. In 

addition, we face a challenge of economic diversification as we approach the end of 

the life of the Henderson Mine, which provides a large portion of our property tax 

base. There are hundreds of mine claims that exist in undeveloped or underdeveloped areas, many of which are very near headwater streams. The rule will help 

us balance the need for diversification while providing the necessary protection for 

streams and wetlands as we encourage development of all kinds. 

Finally, I will conclude by conveying that this issue extends beyond my duties as 

an elected official, or even the economic benefits provided by clean water. As someone who grew up hunting and fishing with my father throughout Colorado, I have 

a deeply personal connection to clean water. My outdoor pursuits begin in the early 

summer chasing trout at elevations of 10,000 feet just above my home. By fall, I 

follow these same headwaters as they flow into the South Platte, and meander 

northeast of Denver to the agricultural communities of Brush and Fort Morgan 

where I hunt waterfowl. The Clean Water Act is an indispensable part of providing 

those hunting and fishing opportunities and passing America’s sporting tradition 

across generations. In all my time spent on the water, I see firsthand a simple 

truth: what happens upstream in the headwaters and connected wetlands makes its 

way downstream to our rivers and streams. The proposed rule simply recognizes 

this reality. 

From a personal passion about hunting and angling to my responsibility as a 

county commissioner to provide clean water for drinking and outdoor recreation, I 

strongly support the clean water rulemaking. The EPA and Corps of Engineers can, 

and undoubtedly will provide more clarity to interested parties about what waters 

are and are not covered. I urge the committee to allow this process to play out without delaying, derailing, or significantly altering the intent of the rule. 

Dr. FLEMING. Thank you, Mr. Mauck. 

The Chair now recognizes Mr. William Buzbee, Professor of Law, 

Georgetown University Law Center in Washington, DC, for 5 minutes to give your testimony. 

22 

STATEMENT OF WILLIAM W. BUZBEE, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC 

Mr. BUZBEE. I also will focus on the Waters of the United States 

regulation, and I will make seven brief points, several of which relate to the opening remarks. 

Point one is the extent of federally protected waters matters to 

much more than just wetlands or what some people sometimes 

characterize as land that should not be protected. The Clean Water 

Act and Waters of the United States is not just about marginal waters. The Waters of the United States jurisdiction is central to all 

of the Clean Water Act. So, as you think about the extent of 

Federal protection, you have to think not just about Section 404 

dredge and fill, but you also have to think about Section 402’s permitting of industrial discharges, as well as other efforts to protect 

water quality, protect drinking water, aquatic habitat, and buffer 

against storm surges and flooding. 

Also, as Ranking Member Huffman mentioned, this has been— 

for, actually, decades—for about 30 years, was an issue of bipartisan consensus, that protecting of waters broadly—and, in fact, 

much more broadly through the Reagan administration—was an 

area of bipartisan agreement. In the Rapanos case itself, I represented a bipartisan group of former EPA administrators who 

were aligned with the Bush administration in arguing for ongoing 

protection of waters. There is reason for this bipartisan agreement; 

this is of great importance. 

Point two, there have been a number—relates to this question of 

whether the rulemaking is legitimate. I have heard a brief reference earlier, and certainly have heard from critics, a question if 

there is room for rulemaking here, as though there is kind of an 

illegitimacy to the rulemaking exercise that the Army Corps of 

Engineers and EPA have proposed. Very importantly, six members 

of the Supreme Court in the Rapanos case called specifically for 

regulation to clear up the law. Earlier, a unanimous Supreme 

Court on the same issue, Riverside Bayview Homes, called for rulemaking to bring clarity to the law, and also point out the need for 

expert regulatory judgments. 

There is no doubt that rulemaking is a legitimate exercise. People may disagree about what exactly is protected, but the idea that 

this is appropriate for rulemaking really is beyond disagreement. 

Point three, people have also talked about broad overreach. And 

certainly the water grab title of today’s hearing reflects a concern 

with Federal overreach. Very importantly, this proposed rule did 

not expand on Federal jurisdiction. In fact, it did several important 

things. Most importantly, it took a number of areas of ongoing debate and disagreement, and very explicitly, in Section 328.3(b), 

specified a whole slew of categories that are no longer going to be 

subject to Federal jurisdiction. And that is the first time there has 

been such explicit carve-out in these regulations. 

Point four, there has long been a concern with protecting waters 

for no logical reason. And, in particular, the idea there is not 

science to back up the protections. What the Army Corps and EPA 

did here is they went and gathered the best peer-reviewed science 

on waters, and their connectivity and protections, collected that 

massive data, put it out for notice and comment, allowed comVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
23 

ments, and took almost 9 months to issue the final report this past 

January. Then the regulations tied directly into that massive, comprehensive survey of peer-reviewed science on what is protected. 

This is, I think, something we should all applaud. 

Point five, there is a huge reduction in Federal power in this regulation. For decades—for 30 years, roughly—there was a commerce-linked sweep-up provision in the regulations about the Clean 

Water Act. If there was a commerce and industrial link, the 

Federal Government had power to protect waters, even if there 

might have been other questions about whether they deserved protection. That has been deleted explicitly, and substituted instead 

for science-based protection. 

Point six, there have been a number—has to do with this risk 

that kind of everything will lead to illegality and liability under the 

law. Very importantly, you can only be liable under the statute if 

you have a jurisdictional water, and you have a discharge into that 

water. And many of the sorts of conduct people have pointed to 

simply do not involve a discharge, and hence, could never give rise 

to liability. 

Last point, this has been a lengthy and contentious rulemaking 

process. Public statements indicate EPA and the Corps have heard 

criticisms. They have explicitly indicated a plan to cut back in some 

areas where there have been particularly vociferous criticisms. And 

I hope that this committee and Congress will allow this rulemaking 

process to come to its conclusion. Thank you. 

[The prepared statement of Mr. Buzbee follows:] 

PREPARED STATEMENT OF WILLIAM W. BUZBEE, PROFESSOR OF LAW, GEORGETOWN

UNIVERSITY LAW CENTER, WASHINGTON, DC 

My name is William Buzbee. I am a Professor of Law at Georgetown University 

Law Center. I am also a member-scholar of the not-for-profit regulatory policy 

think-tank the Center for Progressive Reform. 

I am pleased to accept this committee’s invitation to testify regarding ‘‘Proposed 

Federal Water Grabs and Their Potential Impacts on States, Water Users, and 

Landowners.’’ I will focus in my testimony on the new proposed ‘‘Waters of the 

United States’’ regulations published in the Federal Register by the Army Corps of 

Engineers (the Army Corps) and the U.S. Environmental Protection Agency (EPA) 

on April 21, 2014. As a professor asked to testify due to my expertise, not as a partisan or representative of any organization, I will seek to provide context leading 

to these proposed regulations, comment on the choices made by EPA and the Army 

Corps, and assess the legality and logic of the proposed regulations. Because these 

regulations are now nearing the end of a lengthy notice and comment process, 

undergoing review now by the Office of Management and Budget’s Office of 

Information and Regulatory Affairs, I will also briefly comment on why, at this 

point, allowing EPA and the Army Corps to finish this participatory and judicially 

scrutinized process makes sense. 

My background and past involvement with the ‘‘Waters of the United States’’ 

question: 

This is not my first involvement with the question of what is protected as a 

‘‘Water of the United States’’ under the CWA. I have been involved in past related 

Supreme Court litigation and legislative hearings. 

As a result of my work on environmental law and federalism, I served as cocounsel for an unusual bipartisan amicus brief filed in United States v. Rapanos, 

547 U.S. 715 (2006) (Rapanos). This brief was filed on behalf of a bipartisan group 

of four former Administrators of the U.S. Environmental Protection Agency (EPA). 

Those former U.S. EPA Administrators had served under Presidents Nixon, Ford, 

Carter, the first President Bush, and President Clinton. Despite their different 

party backgrounds and years of service, all four agreed on the importance of retaining longstanding regulations protecting America’s waters. This bipartisan EPA 

Administrators’ brief was also aligned in Rapanos with the George W. Bush adminVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
24 

istration’s arguments before the Supreme Court, several dozen states, many local 

governments, and an array of environmental groups as well as hunting and fishing 

interests. 

This substantial, bipartisan coalition, including the Bush administration, all 

asked the Supreme Court to uphold longstanding regulatory and statutory interpretations regarding what is protected as a ‘‘Water of the United States,’’ emphasizing 

the centrality of the ‘‘waters’’ determination to all of the Clean Water Act. After all, 

although this question of what are protected ‘‘waters’’ is often discussed with a focus 

on wetlands and tributaries and especially dredging and filling restrictions long set 

by Section 404 of the Clean Water Act, the ‘‘waters’’ issue is the key jurisdictional 

hook for virtually all of the Clean Water Act. This includes, among other things, 

direct pollution industrial discharges under Section 402 of the Clean Water Act and 

its National Pollutant Discharge Elimination System (NPDES) program, as well as 

oil spill and water quality components of the Act. 

Since the Court’s splintered and confusing ruling in Rapanos, I testified in House 

and Senate hearings on implications, potential fixes, and regulatory responses in 

2006, 2007, 2008, and 2014. I have continued to follow developments on this proposed rule and body of law. 

Earlier in my legal career, I counseled industry, municipalities and governmental 

authorities, states and environmental groups about environmental law, pollution 

control, and land use issues under all of the major Federal environmental laws, as 

well as state and local laws. As a scholar, I have written extensively about related 

issues, with a special focus in recent years on regulatory federalism, especially environmental laws and their frequent reliance on overlapping Federal, state and local 

environmental roles. I have published books with Cornell and Cambridge University 

Presses, and Wolters Kluwer/Aspen. My publications have appeared in Stanford 

Law Review, Cornell Law Review, NYU Law Review, Michigan Law Review, 

University of Pennsylvania Law Review, Harvard Environmental Law Review, and 

in an array of other journals and books. In addition to teaching at Georgetown, I 

previously taught at Emory University and have been a visiting professor at 

Columbia, Cornell, Georgetown and Illinois Law Schools. 

My testimony, in brief: 

These proposed regulations and a massive accompanying science report referenced 

and summarized in the Federal Register notice—and that science report has now 

been finalized—are an attempt to reduce uncertainties created by three Supreme 

Court decisions bearing on what sorts of ‘‘waters’’ can be federally protected under 

the Clean Water Act. Furthermore, the proposed rule and science report are directly 

responsive to the pleas and rulings of a majority of U.S. Supreme Court justices. 

I will make seven main points in this testimony: 

First, I will explain very briefly how the question of what ‘‘waters’’ are protected 

matters not just for wetlands and tributary protections, but for industrial discharges 

of pollution. Furthermore, the various types of waters protected perform many functions of importance to businesses and governments at all levels. Business, health, 

recreational, and environmental interests are all at stake here. Surely this committee will hear from some business interests arguing against the proposal of the 

Army Corps and EPA, but business interests are undoubtedly on both sides of this 

issue, with hunting, fishing, boating, recreation, and tourism linked businesses especially dependent on protection of America’s waters. And because pollution and filling 

of America’s waters threaten low cost but high value wetlands functions and waters 

used for agricultural purposes and for drinking water, and also water quality in 

drought prone areas, the despoiling or filling of America’s waters would be immensely costly. In addition, state and local governments are also on both sides of 

this issue. Degraded water quality can lead to costly obligations for state and local 

governments. Of great importance, legislators and other critics make both a scientific and legal error when they assume that periodically dry areas cannot be 

worth protecting as a water of the United States. No majority of the Supreme Court 

has ever so held, and the science contradicts this view. After all, much of the United 

States is often dry if not suffering from drought; when waters do flow, those channeling and connecting geographic features are of critical importance and require 

protection against pollutant discharges that will degrade precious and scarce water. 

Second, I will show how the regulatory choices reflected in these regulations are 

responsive to Supreme Court law and also the views of a majority of the Supreme 

Court that regulations on this issue are needed and appropriate. 

Third, these proposed regulations reveal that EPA and Army Corps have responded to criticisms of supposed limitless claims of Federal power by retaining and 

solidifying exemptions. 

25 

Fourth, the regulations link a massive survey of peer-reviewed science of waters’ 

functions with a tiered and nuanced approach. This approach answers criticism that 

the Federal Government is going too far and protecting areas of no value relevant 

to the Clean Water Act. If critics have found flaws in the science or proposed regulatory categories, they surely have participated in this notice and comment process 

and called for adjustments in the final rule. 

Fifth, in the initial heated attacks on these proposed regulations, critics failed to 

note and credit a major change that removes the most expansive and least waterlinked historic grounds for Federal claims of jurisdiction. The proposed regulation 

deleted power to regulate ‘‘other waters’’ based on showing that the harming activity 

or uses of the waters were linked to industry or commerce. This was, in effect, a 

commerce-linked sweep up provision. Instead, the proposed rule links Clean Water 

Act jurisdiction to what the best peer-reviewed science indicates deserves protection. 

This science-based effort should be applauded, even in a time of partisan acrimony. 

Sixth, past hearings and public comments about this rule at times reveal a fundamental confusion. For liability and permit obligations to arise under CWA in connection with farming and other typical land and water uses, a discharge of pollutants 

must be involved. Basically, neither ordinary farming activities nor basic uses of 

lands, wetlands, and other covered waters are prohibited. It is the act of discharging 

pollutants subject to Section 402 or Section 404 permits that typically creates permitting obligations. (Oil spill prevention obligations are subject to their own separate measures that are not relevant here.) Hence, many activities are non-events 

under the CWA, and most actions that are covered are subject to permits that typically constrain but allow activities. If someone discharges pollutants into or destroys 

a protected water without a required permit or in violation of a permit, then liability arises. 

Seventh, and last, I will discuss the implications of where this proposed rule 

stands in the regulatory process. Because it is near final, EPA, the Army Corps, and 

many thousands of people and organizations have expended vast resources on this 

rule. We all should wait and see how EPA and the Corps have addressed the many 

comments and concerns, whether supportive or critical. 

Point I: The extent of federally protected waters matters to far more than just 

wetlands regulation and explains the longstanding Federal bipartisan consensus 

The question of what ‘‘waters’’ are federally protected is not a matter that only 

concerns allegedly marginal waters that, as often presented by critics of the longstanding protective consensus, look more like land or involve the outermost reaches 

of wetlands protection. The question of what are protected ‘‘Waters of the United 

States’’ concerns the very linchpin of Federal Clean Water Act jurisdiction. It does 

indeed supply the hook for Section 404 ‘‘dredge and fill’’ coverage, but also provides 

the jurisdictional prerequisite for Section 402’s requirement of permits for industrial 

pollution discharges under the National Pollution Discharge Elimination System (or 

NPDES). It also underpins efforts to protect water quality, protect drinking water, 

provide habitat, and buffer against storm surges and flooding. Furthermore, since 

the 1970s and still today on the Supreme Court, the longstanding consensus has 

been to protect far more than just waters used in the literal sense for shippinglinked navigation. 

It is critical to remember that the Clean Water Act has been one of America’s 

great success stories, helping to restore many of America’s rivers from highly polluted conditions to water that often now is clean enough for fishing, recreation, and 

even drinking water. The Act also greatly reduced the pre-Clean Water Act tendency to see wetlands as worthless and appropriate for filling. Many of the countries 

we compete with for talent and business vitality suffer from a hugely degraded environment. Our cleaner environment is a major comparative advantage in the increasingly globalized economy. After-the-fact efforts to clean polluted waters are costly, 

and harms to health, business, governmental, and recreation interests when a water 

is polluted can be vast. 

Despite the great progress in improving U.S. water quality, many parts of the 

country still suffer from degraded water quality, and threats to wetlands and tributaries still arise. Everyone shares a common interest in protecting water quality and 

wetlands’ hugely valuable functioning. Nevertheless, individuals may see business 

advantage in being able to pollute with impunity or convert for private gain a tributary or wetland into land for development or other commercial use, even if others 

downstream are economic losers. Hence, despite a broad consensus that America’s 

rivers, tributaries and wetlands should be protected, clashes over particular applications of the law are a near constant. All environmental protection laws, by their 

very nature, ask for a degree of restraint, forbearance, and attention to shared interests and resources. Congress, and under the CWA EPA and the Army Corps, play 

26 

a critical role in protecting our critically important and shared water resources. 

That the CWA is one of America’s great success stories, and a success with bipartisan roots, should not be forgotten. 

Point II: The new proposed ‘‘Waters of the United States’’ regulations are an 

appropriate response to the Supreme Court’s recent cases: 

Protecting jurisdictional waters was an area of bipartisan consensus right through 

the recent Bush administration. Until the 2001 Supreme Court Solid Waste Agency 

of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) 

(SWANCC) decision, the law and underlying regulations reflected a stable bipartisan consensus of almost 30 years that protection of America’s waters through stable Part 328 regulations was good policy. A unanimous Court deferred to agency 

line-drawing about what sorts of waters deserved protection in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). However, SWANCC and then 

United States v. Rapanos, 547 U.S. 715 (2006) (Rapanos) unsettled that longstanding bipartisan consensus, breeding legal uncertainty that the new Army Corps 

and EPA regulations seek to address. Greater regulatory clarity and explicit reference to the relevant best science could reduce such uncertainty, both protecting 

waters that matter and reducing regulatory uncertainty and costs that benefit no 

one. Issuing new clarifying regulations on ‘‘waters’’ was explicitly embraced by a majority of Supreme Court justices in Rapanos and is consistent with 40 years of CWA 

understandings. The act of rulemaking is in no way illegitimate. A six justice majority in Rapanos embraced the role of expert regulation to clarify the appropriate line 

between land and water. This included Chief Justice Roberts, who bemoaned the 

lack of responsive clarifying regulations post-SWANCC, and Justice Kennedy, who 

penned a swing vote opinion that is widely viewed as the most authoritative 

Rapanos opinion. Justice Kennedy fleshed out how a ‘‘significant nexus’’ needs to 

be shown to federally protect some waters whose linkages to navigable waters and 

functioning makes them of possibly marginal importance; ‘‘alone or in combination,’’ 

the relationship with navigable waters must be more than ‘‘speculative or insubstantial.’’ Rapanos, 547 U.S. at 780. Justice Kennedy explicitly recognized that 

many questions about what sorts of waters deserve protection could be addressed 

via categories set forth by regulation. The four dissenters, all of whom joined an 

opinion by Justice Stevens, would have affirmed the regulators’ judgments attacked 

in Rapanos; they emphasized the importance of judicial deference to expert regulatory judgments about what waters should be protected. 

Thus, six justices embraced an ongoing role for regulation to bring clarity to the 

law. In addition, an earlier unanimous Supreme Court in Riverside Bayview Homes 

embraced deference to regulatory judgments about where to draw the line between 

land and water. There undoubtedly remains legitimate room for regulations to bring 

greater clarity to this body of law. 

The proposed regulations at issue in today’s hearing respond directly and reasonably to these Supreme Court calls. They protect some waters by category, basing 

that judgment on a comprehensive review of peer-reviewed science about the linkages, value and functions of such categories of waters. Some other types of waters 

are identified as possibly falling under Federal jurisdiction, but the jurisdictional determination has to follow a water site-specific review to see if a ‘‘significant nexus’’ 

exists adequate to justify Federal protection. Furthermore, the proposed regulations 

offer additional guidance about what ‘‘significant nexus’’ analysis should consider, 

building on Justice Kennedy’s Rapanos language and providing additional guidance 

for what regulators and those seeking a jurisdictional determination should consider. 

Hence, by protecting some waters by category and others on a case-by-case basis 

if satisfying ‘‘significant nexus’’ analysis, and in all instances linking such regulatory judgments to a comprehensive survey of peer-reviewed science, the Army 

Corps and EPA have respected Supreme Court edicts and signals. Furthermore, 

these proposed regulations also show fealty to the Clean Water Act’s explicit textually stated goal of protecting the ‘‘chemical, physical, and biological integrity’’ of 

America’s waters by reducing pollution discharges and requiring permits before discharging any pollutants into such waters, whether in the form of industrial pollution or fill. 

I am aware that the proposed regulations have been much criticized by some for 

how they deal with some categories of tributaries and ditches, with claims that they 

go too far in light of common agricultural practices or common road or railroad features, for example. EPA and the Corps have had to review such comments and have 

surely also consulted with other relevant departments and agencies. Comments from 

EPA indicate that responsive changes on some of these issues are likely. If, as critVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
27 

ics claim, EPA and the Corps ignore science or salient and accurate comments and 

criticisms, the final rule will be legally vulnerable and will either be challenged in 

court or possibly subject to petitions for regulatory correction. But maybe those comments are overblown, or have been heard and led to regulatory improvements. We 

should know soon. 

Point III: The proposed regulations make explicit several categories of activities or 

waters not subject to Federal jurisdiction 

A persistent refrain in recent years and regarding the proposed regulations under 

discussion today is that the jurisdiction being claimed borders on the limitless. Today’s hearing, with its ‘‘Federal water grabs’’ title, evidently reflects similar concerns. Federal jurisdiction under this law has long been expansive, but the proposed 

rule did not, in fact, expand on Federal jurisdiction. This claim of limitless Federal 

power is most evidently erroneous in light of the proposal’s creation of both categorically protected waters and others that must be assessed on a case-by-case basis. 

However, the proposed regulations go further, in new Section 328.3(b) making explicit that several types of otherwise potentially debatable waters are not ‘‘Waters 

of the United States.’’ These include (with additional more precise language): waste 

treatment systems; prior converted cropland; several sorts of ditches that are upland 

or do not contribute flow to otherwise regulated waters; and several types of 

‘‘features’’ such as artificially irrigated areas that would revert to upland without 

irrigation water, artificial lakes, ponds, pools and ornamental waters, constructionlinked water-filled depressions, groundwater, and gullies, rills and non-wetland 

swales. Several of these exemptions appear to be in direct answer to criticisms in 

court briefs and congressional testimony that Federal jurisdiction has bordered on 

the limitless. 

Point IV: The proposed regulations’ link to a massive survey of peer-reviewed science 

about waters’ connectivity, values and function responds to the most prevalent 

criticism of ‘‘waters’’ Federal jurisdiction and puts all on notice 

Over the past decade, a common claim of critics of Federal jurisdiction has been 

that waters—or sometimes lands—can and are claimed to be protected for no reason 

relevant to the Clean Water Act’s purposes. And on this issue and in other battles 

over regulation, critics in Congress, the courts, and in the academy have called for 

‘‘sound science’’ and ‘‘peer-reviewed’’ science to underpin regulatory judgments. The 

Army Corps and EPA have taken this to heart, for the first time pulling together 

a massive survey of peer-reviewed publications about the connectivity, values, and 

functions of various types of waters. This report was last year released in draft 

form, reviewed by the Science Advisory Board, and was made public for review and 

comment. On January 15, 2015, EPA announced in the Federal Register release of 

a final version of this report. In addition, the Corps and EPA in their proposed regulation’s Federal Register notice explained how they interpreted this report and the 

science in deciding what types of waters are categorically protected, subject caseby-case to ‘‘significant nexus’’ analysis, or not protected. 

This sort of notice and comment process and public vetting of the accompanying 

science report, with the overt linkages to the proposed ‘‘Waters of the United States’’ 

rule, have provided a valuable open, transparent, and judicially challengeable process. Supporters and critics have now had an opportunity to critique this report. We 

will soon be able to assess if the final rule is fairly based on the overwhelming peerreviewed science that confirms the functional importance of many types of waters. 

Point V: The Army Corps and EPA in the proposed regulations deleted the longstanding ‘‘other waters’’ commerce-linked sweep-up provision, instead linking 

protections to science and limiting Federal power 

In the proposed regulations, a longstanding additional grounds for Federal jurisdiction has been deleted. This provision, the former Section 328.3(a)(3) ‘‘other 

waters’’ paragraphs, provided Federal jurisdiction to protect over a dozen sorts of 

waters upon a showing that their ‘‘use, degradation or destruction . . . could affect 

interstate or foreign commerce’’ or be used by ‘‘interstate or foreign travelers’’ for 

‘‘recreational or other purposes,’’ for fishing-linked commerce, or for ‘‘industrial purposes by industries in interstate commerce.’’ This provision basically identified types 

of waters but made them protectable based on their commerce-linked uses or values. 

This regulation was consistent with longstanding understandings of the 1972 Clean 

Water Act amendments and the congressionally intended reach of Federal power. 

However, both the SWANCC and Rapanos decisions raised questions about whether 

Clean Water Act jurisdiction could focus on a water’s commercial or industrial uses 

or the impacts of a water’s degradation without regard to the water’s functions or 

links to navigable waters. 

28 

I will not here opine on whether this section’s deletion was legally necessary or 

prudent. I will, however, note that the Corps and EPA answered critics and eliminated uncertainty by deleting this section in favor of linking all jurisdictional 

‘‘Waters of the United States’’ determinations to what the science shows, as applied 

to the particular sites and activities at issue. Since most pollution and filling activity is undoubtedly commercial and industrial in nature, and little today is not linked 

to interstate commerce, this regulatory deletion is a significant concession and reduction in Federal power. Again, the proposed regulations link regulation to peerreviewed science and cut back on the broadest possible grounds for jurisdiction. 

Point VI: An Unpermitted Discharge of a Pollutant is a Central Prerequisite for CWA 

Liability, Not Ordinary Uses of Lands and Waters 

Both in past legislative hearings and in many statements about this proposed 

rule, critics have asserted that virtually everything farmers and others do in lands 

near waters and around or in supposed waters will now create indeterminate liability or legal prohibitions. These claims seem to be rooted in a misunderstanding of 

the CWA. Apart from some provisions applicable to oil spill planning that require 

preventive planning, permitting obligations and linked liabilities under the CWA 

only arise when a person will be discharging pollutants from a point source into a 

jurisdictional water. Section 402 industrial discharges and Section 404 ‘‘dredge and 

fill’’ permits are most relevant here. Most ordinary agricultural activities and other 

uses of lands and waters simply do not constitute covered discharges. First, as mentioned above, there are explicit statutory as well as regulatory carveouts, especially 

for categories of agricultural activity. In addition, assorted ‘‘nationwide’’ or ‘‘general’’ 

permits create presumptive permission for some categories of activities. And not everything is a point source; many sorts of pollutant flows, especially connected to agriculture or flowing across lands or roads, are nonpoint sources and not reached by 

the CWA. It is when someone decides to dump pollutants or destroy a water, yet 

without a permit, that legal liability arises. (Again, oil spill prevention is subject to 

different additional obligations.) But often such discharges will be subject to permitting and hence escape liability. So it is the unpermitted discharge of pollutants from 

a point source into a jurisdictional water that gives rise to concerns. Furthermore, 

it is extraordinarily rare that unintentional or even clearly illegal intended conduct 

gives rise to liability; citizens seeking to enforce the law have to give notice so there 

is an opportunity for cure, and government enforcers also typically try to head off 

trouble by telling potential law violators of their concerns. Basically, liability does 

not come out of the blue, but requires several stages of intentional conduct and often 

something approaching willful disregard of the law. 

Point VII: The Notice and Comment Process Should Run Its Course So All Can 

Assess the Actual Final Regulation 

A high stakes regulatory action like the ‘‘Waters of the United States’’ rule triggers vast investments of time and resources by private and public actors. Congress 

should let this process come to a regulatory conclusion. 

EPA and the Corps have participated in hundreds of public sessions around the 

country about this proposal. Many thousands of hours have been spent on this rule 

by a vast array of interested actors, including months of surely painstaking review 

by EPA and the Army Corps, and now by OIRA, which tends to look at proposed 

rules with an eye to efficiency goals, through cost-benefit analysis, and in coordinating among sometimes clashing parts of the executive branch. During such a notice and comment process, the executive branch has to comport itself with a vast 

body of administrative law that the courts police; agencies need to read comments, 

respond to salient criticisms, and justify the final regulatory choices in light of statutory language, court decisions, and relevant science and facts. If an agency violates 

any of these obligations, courts can and do step in and reject the agency’s action. 

Or, sometimes, a flaw that is found and pointed out by critics will lead an agency 

to make further revisions, sometimes with yet another more focused notice and comment process. All of us—whether in or outside government—must be stewards of 

limited private and taxpayer resources. To try to block a new rule without seeing 

what it actually looks like in its final form is both unnecessary and threatens just 

such waste. If the final rule is deeply flawed in its final form, then corrective actions 

can be sought in Congress, with the agencies again, or in the courts. And if it is 

a sound and responsive document, then much of the criticism may abate. America 

will benefit if important waters are again protected, and all will benefit from less 

regulatory uncertainty. At a minimum, the array of supportive and opposed constituencies will likely change when the final rule’s choices are disclosed. I hope that 

Congress will let this regulation run its course. 

29 

Conclusion 

The legal uncertainty of recent years about what are protected Federal waters has 

benefited no one. For those concerned about protection of America’s waters, 

regulatory uncertainty has led to regulatory forbearance, problematic or erroneous 

regulatory and judicial decisions, and increased regulatory costs. By now linking the 

‘‘Waters of the United States’’ question to peer-reviewed science and clarifying which 

waters are subject to categorical or case-by-case protection and revealing the reasons for such judgments, the Corps and EPA have moved the law in the direction 

of certainty and clarity. This is an area calling for difficult, expert regulatory judgments. There was a reason for the 30 years of bipartisan consensus in favor of 

broadly protecting America’s waters. These proposed regulations, if finalized in a 

substantially similar form but with explanations and changes addressing concerns 

voiced during the process, could once again bring clarity and stability to the law, 

while also respecting the protective mandates of the Clean Water Act. We are nearing the end of lengthy, intensive, and contentious regulatory process. I hope that 

Congress will allow the process to reach its conclusion so we can all assess the legality and wisdom of the newly released final rule. Little is bipartisan these days, but 

protection of America’s waters is surely valued on both sides of the aisle and embraced broadly at the Federal, state, and local level. Certainly no one can be against 

the protection of America’s invaluable water resources. Let’s see if the final rule will 

deserve broad support. 

Dr. FLEMING. Thank you, Mr. Buzbee. I would now like to recognize Congressman Newhouse to introduce our next witness on this 

panel. 

Mr. NEWHOUSE. Thank you, Mr. Chairman. I am delighted to be 

able to introduce and welcome Mr. Tom Myrum. He is one of the 

most respected and recognized voices in Washington State’s water 

community. 

For the last 20 years, Tom has been serving as Executive 

Director and Counsel of the Washington State Water Resources 

Association, which is the coordinating agency for irrigation districts 

in the state of Washington. Tom is also the immediate past president of the National Water Resources Association, which represents water users throughout the western and southeastern 

United States. 

I should say Tom grew up in Wyoming, graduated the University 

of Utah, received his JD from the University of Idaho College of 

Law. A member of both Washington and Oregon Bar Associations, 

he has worked with irrigation districts in Oregon before taking his 

current role with the WSWRA. 

And Tom, I certainly welcome you. I know you understand the 

challenges of Western water law, and look forward to your contribution to this conversation. Thank you. 

Thank you, Mr. Chairman. 

Dr. FLEMING. Therefore, Mr. Myrum, you are now recognized for 

5 minutes. 

STATEMENT OF TOM MYRUM, EXECUTIVE DIRECTOR, 

WASHINGTON STATE WATER RESOURCES ASSOCIATION, 

OLYMPIA, WASHINGTON 

Mr. MYRUM. Thank you. Chairman Fleming, Ranking Member 

Huffman, thank you for this invitation to speak before you today. 

I won’t read from the script, because my eyes are getting worse 

every day, and it seems like today was one of the worst. But I will 

say that irrigation districts westwide are into about 150 years of 

development, either privately or with the assistance of the Bureau 

30 

of Reclamation through the Reclamation Act of 1902. As a result, 

we have been able to reclaim much of the West and cause it to 

bloom, turn it into fertile agricultural land, which has really built 

a very strong agricultural economic base in the West. 

We are no strangers to the Clean Water Act. It has been mentioned earlier that ditches are exempt from the Clean Water Act. 

If only that were so, if someone could put that in writing, we would 

breathe much easier. And I can give you some specific examples. 

In Washington State—I will speak specifically, since it is most 

close to my knowledge—Clean Water Act has visited us in a few 

different ways. In our irrigation delivery canals and drains, some 

of them are already on the 303(d) list of water quality limited 

stream segments. They have new space standards applied to them, 

and efforts to try to remove them through use attainability analyses have often been, well, difficult, if not impossible. The EPA and 

the State Department of Ecology find that process very cumbersome, and we would like that we can move that. But the point 

I want to make is it is both delivery canals and return flow drains 

where that applies. 

We are currently subject to 402 permits, NPDES permits, for the 

use of aquatic pesticides to remove the aquatic weeds from the canals. As a result, when we put the pesticides both into delivery 

canals and drains, we must use these permits. 

In 2007, after a couple years of working with the Bureau of 

Reclamation and the Corps of Engineers, we were successful, with 

the help of NWRA, in getting regulatory guidance on our 0702, 

which lined out when irrigation district drains are not 404- 

jurisdictional. That was very helpful. And, as a matter of fact, it 

was one of our state fisheries people who had asked the Corps of 

Engineers to look to see if these drains were, indeed, 404- 

jurisdictional. A great interface with the Corps of Engineers then 

led to that regulatory guidance letter. 

One of the interesting facts about that is, if you went to the 

Seattle District or the Walla Walla District, you might get a slightly different reading of that regulatory guidance letter. I bring that 

up for the point that, with the new clarification of this very large 

rule, it is entirely possible that this specific regulatory guidance 

letter, and many more, could be reinterpreted. They could be rewritten, thus leading to the jurisdictional elements of our drains 

suddenly having to have 404 permits: something we haven’t had to 

have to date. 

Let me give an example of some positives in the Clean Water 

Act. The TMDL, appropriately set in the Lower Yakima River, 

where Congressman Newhouse’s district, the Sunnyside Valley 

Irrigation District, gets their water—two drains were listed for 

TMDLs on sediments. The districts, the Rosa District and the 

Sunnyside District, both worked together with their farmers to 

meet the goal of the TMDL in less than the 10 years allowed. They 

did it within, I think, about a 3-year period. And, as a result, they 

got two environmental excellence awards from our then-Governor 

Locke. So, the irrigation districts have familiarity with the Clean 

Water Act, and being positive actors within it, and getting to good 

environmental results. 

31 

What we see here from this very large clarification is it will lend 

itself toward reinterpretation by the agencies and, ultimately, find 

its way back through the courts to determine whether or not the 

clarification was, indeed, an appropriate clarification. And so, the 

cycle works its way back through, and the court, from Rapanos, will ultimately get to decide if what the agency did was correct. 

This could be, then, a never-ending cycle, leading to a lot of concern 

within the regulated community as to what the standard truly is. 

And I thank you very much for this opportunity to testify. 

[The prepared statement of Mr. Myrum follows:] 

PREPARED STATEMENT OF TOM MYRUM, WASHINGTON STATE WATER RESOURCES

ASSOCIATION, ON BEHALF OF NATIONAL WATER RESOURCES ASSOCIATION

Chairman Fleming, Ranking Member Huffman, and members of the subcommittee, thank you for giving me the opportunity to appear before you today, and 

for your attention to the many water challenges facing our Nation. My name is Tom 

Myrum, I am the Executive Director of the Washington State Water Resources 

Association. I am also the immediate past President of the National Water 

Resources Association, more commonly known as NWRA. I am here today to testify 

on behalf of NWRA and its members from around the United States. 

NWRA is a nonpartisan, nonprofit federation made up of agricultural and municipal water providers, state associations, and individuals dedicated to the conservation, enhancement and efficient management of our Nation’s most important 

natural resource, water. The NWRA represents a diverse group of agricultural and 

municipal water users and water providers from throughout the American West and 

portions of the southern United States. Our members provide clean water to millions of individuals, families, agricultural producers and other businesses in a manner that supports communities, the economy and the environment. 

For more than 80 years our members have worked, oftentimes in partnership with 

Federal agencies, to provide water in a manner that provides both economic and 

ecosystem benefits to communities. NWRA is committed to working with the 

Congress and the agencies to provide a clearly defined, efficient process for all permitting requirements. 

Our members’ ability to provide the water that our Nation depends on is directly 

influenced by the role and scope of Federal regulation. 

IMPORTANCE OF WATER

I’m here today because water is a fundamental element for life and our economy, 

but until it is gone many Americans pay little attention to it. Federal regulations 

have a direct affect on NWRA and our members’ ability to deliver this vital resource. We are blessed to have one of the most comprehensive water infrastructure 

systems the world has ever seen, and while not perfect, this infrastructure allows 

almost all Americans to access water with the turn of a tap. It is truly a wonder 

of the modern world. 

The development of this system was not always easy and sometimes was met with 

failure. In fact some of the West’s most iconic figures including ‘‘Buffalo Bill’’ Cody 

and Sheriff Pat Garrett tried and failed to develop water systems. Despite these 

challenges our forbearers in water persisted because they saw the vital need for access to water. This is true not only in the United States, but also worldwide. 

Water is one of the cornerstones of our society and a building block for life. Another building block is food. According to the USDA, the United States is responsible for approximately 20 percent of the world’s food exports by volume. Input costs 

for U.S. agricultural production affect costs both domestically and globally. Keeping 

food affordable is extremely important because price spikes can have disproportionate adverse affects on vulnerable populations. According to U.N. and World 

Bank figures, price spikes in 2008 drove 110 million people into poverty and added 

44 million to the undernourished globally. As the world’s population continues to 

grow in coming decades, the need to produce food will also grow. It is estimated that 

by 2050 the demand for food will grow by 70 percent. 

Food production in the United States must play a role in meeting this demand. 

This is a daunting challenge but one that NWRA members are ready to help our 

Nation’s agricultural producers meet. Our Nation’s farmers and ranchers have successfully doubled U.S. food production over the last half century. Much of this 

improvement has come during a time when agriculture is working to become more 

32 

1http://graphics.latimes.com/food-water-footprint/. 

efficient in its water use. According to the USGS, since peaking in 1980 water used 

for irrigation has dropped from almost 150 billion gallons per day to about 115 billion gallons a day in 2010. Since 2005 alone, 950 thousand more acres of land have 

been put into irrigated agricultural production while water use has been reduced 

9 percent. 

Increased production with less water is made possible because agricultural water 

users are making significant investments in water use technologies. As an example, 

NWRA members in New Mexico have invested in subsurface drip irrigation systems 

that help reduce water lost to evaporation. Producers in Arizona are laser leveling 

their fields to help reduce water lost to runoff. In my home state of Washington 

irrigators are using SCADA technology to help measure and respond to water demands in real time, which yields water savings. 

Despite improvements in agricultural water use the world remains a thirsty place. 

According to the USGS the average American uses between 80 and 100 gallons of 

water a day. Much of this water is used for sanitary needs. This 80- to 100-gallon 

figure is only part of the picture of water use in the United States. 

Last week, the Los Angles Times had a number of articles discussing the water 

footprint for a variety of crops. It also featured an interactive page on it’s Web site 

which allows you to construct a meal and get the total water footprint associated 

with that meal. This web page featured a ‘‘random plate’’ option that builds a meal 

for you, selecting a protein, grain, vegetable and beverage for you and totaling the 

associated water use. The random plate I selected, which is pictured below, gave me 

a meal consisting of: 

• 8 ounces of chickpeas with an associated water footprint of 608.6 gallons; 

• 6 ounces of wheat bread with an associated water footprint of 86.8 gallons; 

• 8 ounces of carrots with an associated water footprint of 7.4 gallons; and 

• 8 ounces of wine with an associated water footprint of 27.8 gallons 

This heart health meal had a total water value of 730 gallons. 

Figure 1: LA Times Food Water Footprint 1

Food isn’t the only product with a water footprint. As an example, a cotton T-shirt 

can utilize approximately 700 gallons of water, a 32-megabyte computer chip— 

which weighs about 2 grams—has a water footprint of about 8 gallons, and a single 

33 

2https://www.whitehouse.gov/the-press-office/2012/01/25/remarks-president-intel-ocotillocampus-chandler-az. 3https://fas.org/sgp/crs/misc/R43056.pdf. 

piece of paper has a water footprint of around 2.6 gallons. This means that one copy 

of my testimony has a water footprint of 26 gallons. 

It is important to note that a water footprint is only one part of a complex picture. 

A product’s water footprint is only one indicator that doesn’t actually represent the 

water contained in a product. It considers larger issues associated with the full supply chain. Water is still an important component of input and should be considered 

but it isn’t the only component that should be considered. 

Should we stop growing avocados in California and instead only purchase them 

from more water rich places like New Zeeland? If so what about other environmental factors like the carbon footprint needed to transport that avocado nearly 

9,000 miles to grocery store shelves here in DC? 

Should Intel stop building computer components in Arizona at a factory that 

President Obama said is an example of: ‘‘An America that attracts the next generation of good manufacturing jobs. An America where we build stuff and make stuff 

and sell stuff all over the world.’’ 2

Should the Federal Government stop issuing final rules because, according to the 

Congressional Research Service, the government published 26,417 pages worth of 

final rules in the Federal Register in 2013? 3 That’s more than 68,000 gallons of 

water to print just one copy of rules finalized 2013. 

I ask these questions not to make light of the importance of considering water 

inputs, but rather to highlight the fact that these are complex questions. We use 

water every day in ways that most individuals don’t realize. This makes addressing 

current and future water supply needs a major responsibility. Meeting these needs 

will require collaboration, creativity and flexibility. NWRA members are ready to 

work with the subcommittee and Federal agencies to meet these needs. 

PENDING REGULATORY PROPOSALS—POTENTIAL IMPLICATIONS FOR WATER SUPPLY

NWRA and our members do not oppose regulation outright. We see value in regulations when appropriately applied and are active members of the regulated community. Our members take great pride in providing water while meeting ecosystem 

needs. NWRA members fully understand and support the need for keeping our waters safe and clean, not only for purposes of crop production, but also for drinking 

water, fish and wildlife habitat, and recreational uses. To further those goals, 

NWRA members continue to make necessary improvements to their systems to increase efficiencies, conservation, and environmental protections. 

However, we also believe that Federal regulations are not, by default, universally 

good ideas. In many cases there is a fine line between appropriate regulation and 

unnecessary overreach. In these instances it is our responsibility to work to address 

these problems. That responsibility is why I am here today. 

In my testimony this morning I will focus on three items: the Environmental 

Protection Agency (EPA) and Army Corps of Engineers (Corps) proposed rule regarding the definition of the ‘‘Waters of the United States’’ and its impacts on 

Bureau of Reclamation customers; the Forest Service’s Ski Area Water Rights 

Clause; and the Forest Service’s proposed groundwater management directive. 

However, I would do the subcommittee and water users a disservice if I failed to 

mention that these three items are only a small sample of the numerous pending 

rules, regulations, or policies proposed by Federal agencies that could significantly 

and adversely affect water users. Last year NWRA filed 11 sets of comments on regulatory proposals. In the first quarter of this year we have filed comments on three 

additional items. All 14 of our comment letters highlight that Federal regulations 

can unnecessarily hinder water supply operations if not correctly implemented. 

We file these comments because it is vital that Federal agencies understand and 

appreciate the complex process and unique circumstances surrounding water delivery. If our members can’t do our job many of your constituents can’t get water. 

It is also important to note that the absence of Federal regulation does not translate to a total lack of regulation. All states have, at some level, statutes that protect 

water and address water quality issues. In fact some of these protections are more 

stringent than Federal requirements and exceed the protections offered under the 

Federal Clean Water Act. In addition, many municipalities and water districts undertake additional efforts to protect water quality, often at great cost, without any 

requirement to do so. 

34 

CLEAN WATER ACT AND PROPOSED DEFINITION OF WATERS OF THE UNITED STATES

Last year NWRA members testified before both the House Transportation and 

Infrastructure Committee and the House Natural Resources Committee on the 

pending rule defining ‘‘Waters of the United States’’. During these hearings it became evident that there is bipartisan interest in ensuring the Clean Water Act is 

appropriately applied. It also became evident that the proposed rule created an immense amount of confusion and needed clarification. 

Prior to the issuance of this rule many NWRA members sought clarification to the 

jurisdictional questions under the Clean Water Act. Many hoped that the proposed 

rule would provide additional clarity that would help agencies and water users more 

effectively implement the Act. 

The primary goal of any rulemaking should be to clarify the scope of the Federal 

agencies’ jurisdiction under the Act. Unfortunately, the rule that has been proposed 

by the agencies only adds to the confusion over jurisdictional determinations. And 

now, almost a year after we first discussed this issue with Congress, we find ourselves back testifying again. In the intervening year the clarity we have long sought 

remains illusive. 

Under the agencies’ proposed rule all ditches are jurisdictional unless specifically 

exempted. The only ditches that are exempted are those which are excavated wholly 

in uplands, drain only uplands and have less than perennial flow or ditches that 

do not contribute flow to a traditional navigable water, interstate water, the territorial seas or impoundments thereof. 

Contrary to EPA public statements, these exemptions are of limited utility. As an 

example, in many western states, ditches are often used to move water to fields for 

irrigation purposes or to municipal intakes. Hence, they commence at a ditch 

headgate ‘‘on the stream,’’ i.e., not in an ‘‘upland’’. In addition, they oftentimes eventually provide return flows back to the stream after use in accordance with water 

court decree requirements. Further, under the proposal, the ditches themselves 

would be treated as jurisdictional waters even though point source discharges into 

the ditch that may reach a traditional navigable water will be regulated under state 

law. 

The use of ditches is critical in meeting Western municipal and agricultural water 

supply needs. Most ditches are not excavated wholly in uplands or drain to another 

waterbody and therefore are not exempt under the current proposal. 

We do not believe that Congress or the Courts ever intended for features like irrigation ditches to be jurisdictional under the Clean Water Act. The words chosen by 

Congress and the intent of the Act are clear: irrigation canals, ditches, and drains 

were not meant to be regulated under the Clean Water Act. This was reflected in 

the 1975 and 1977 regulations, which provided that ‘‘manmade nontidal drainage 

and irrigation ditches excavated on dry land are not considered waters of the United 

States.’’ 40 Fed. Reg. 31, 321 (1975); 33 CFR 323.2(a)(5)(1982). 

The Federal Government has a vested interest in seeing that irrigation facilities 

are operated and maintained in a manner that protects the public from deterioration and failure of these facilities. Without the ability to conduct necessary maintenance activities, free from time consuming and costly Federal processes, agricultural 

water delivery, and many of the efforts aimed at improving efficiencies, protecting 

public safety and conserving water, would be severely challenged, if allowed at all. 

It also needs to be noted that many of the facilities that could now be jurisdictional for the first time provide flood control or public safety functions. In such 

cases, regular maintenance activities to maintain channel capacity are necessary to 

protect life and property. In addition catastrophic forest fires and floods are growing 

more commonplace events in the West. When these catastrophic fires occur it is essential to quickly undertake remedial activities after such events, including sediment and debris detention, in order to protect health, safety, infrastructure/property 

and environmental values. Categorizing all small drainages as jurisdictional, with 

accompanying regulatory requirements, will impede the ability to appropriately respond to such disasters and could jeopardize public safety and property. 

The proposed WOTUS rule in its current form will make meeting future water 

and food supply needs more difficult. We hope that the final rule proposed by the 

agencies reflects NWRA’s concerns and focuses on limiting the regulatory uncertainty of ‘‘Waters of the U.S.’’ and jurisdiction, and not create unnecessary burdens 

on entities such as irrigation districts and water suppliers, whose purpose and facilities have no relationship to the originally envisioned scope of the Clean Water Act. 

FOREST SERVICE SKI AREA WATER RIGHTS CLAUSE

Over the last several years the Forest Service has issued proposals relating to the 

management of water rights associated with ski areas and special use permits. The 

35 

Proposed Ski Area Water Rights Directive (Water Rights Directive) ostensibly appears to apply to ski areas, but we are concerned that it could have broader policy 

implications that would harm people, local governments and other entities that own 

state allocated water rights. This proposal threatens to vastly increase Forest 

Service control over state allocated water rights. This is counter to state law and 

stands to harm water users by interfering with the management and use of their 

state allocated water rights. 

Collectively, NWRA members have spent billions of dollars investing in the development of state issued water rights and associated infrastructure in order to provide 

a safe and reliable water supply to their customers. Their ability to continue meeting the Nation’s growing demand for clean water is dependent upon access to this 

vital resource. Water rights constitute a valuable property right and as such are valuable assets that are often irreplaceable. 

The Water Rights Directive would require that a state allocated water right be 

tied to a special use permit issued by the Forest Service. Further it stipulates that 

these water rights can only be sold to the subsequent ski area special use permit 

holder and that the water can only be used in support of a ski area. 

By restricting the market for a state allocated water right the Forest Service is 

essentially driving down the value of that water right. This amounts to a taking of 

property. The Forest Service seems to acknowledge this problem in the Proposed 

Directive and would require a water right holder to waive any claim against the 

United States for compensation. Specifically, the proposal states: ‘‘The holder waives 

any claims against the United States for compensation for any water rights that it 

transfers, removes, or relinquishes as a result of the foregoing provisions; any 

claims for compensation in connection with imposition of restrictions on severing 

any water rights; and any claims for compensation in connection with imposition of 

any conditions on installation, operation, maintenance, and removal of water facilities in support of the ski area authorized by this permit.’’ 

The Forest Service itself appears to admit that this provision is problematic and 

would adversely impact property rights and may run counter to the Fifth Amendment. In the June 23, 2014, Federal Register notice the Forest Service states that: 

‘‘The waiver provision is constitutional, because constitutional rights, including 

those protected by the Fifth Amendment, can be waived.’’ It is disconcerting that 

the Forest Service, an agent of the U.S. Government, is encouraging the parties that 

it negotiates with to waive constitutional rights as a condition of a special use permit. Our members do not believe that waiving a constitutional right should be considered so lightly. We also have great concern that a special use permit holder 

should be faced with a Hobson’s choice requiring the waiver of their constitutional 

rights in exchange for access to water. 

This proposal exceeds the agency’s authority as Congress has not provided the 

Forest Service power over water rights owned by a third party under state law. In 

addition, we are concerned the Proposed Directive would lead to the decreased value 

of a water right, would limit water management flexibility and increase the workload for both water users and the Forest Service alike. 

The creation of a process through which water deliveries could be made 

contingent on the modification, relinquishment or surrender of a water right is unacceptable. 

FOREST SERVICE GROUNDWATER PROPOSAL—PRACTICAL MANAGEMENT

CONSIDERATIONS

Last year the U.S. Forest Service proposed a directive aimed at groundwater management. Its ‘‘Proposed Directive on Groundwater Resources Management’’ (Groundwater Directive) is extremely troubling to water users. As currently drafted, the 

Forest Service Directive unnecessarily expands the reach of the Federal Government 

into an area generally regulated by the states. The Groundwater Directive is also 

concerning because it makes numerous mentions to adjacent non-Federal lands. 

While we are extremely concerned by this proposal, we do want to state that we 

recognize and appreciate the efforts that the Forest Service has undertaken to communicate with our members following the initial release of the Groundwater 

Directive. These interactions helped establish a productive dialog and we believe 

that they were mutually beneficial. However, we remain concerned that the 

Proposed Groundwater Directive is fundamentally flawed. 

The Forest Service lacks the authority to implement the Groundwater Directive 

and does not adequately consider the importance of state water law. It also does 

not appreciate the differences in water law between eastern states, individual western states and the territories. The Forest Service manages 155 National Forests and 

20 National Grasslands on nearly 193 million acres of land in 44 states, Puerto Rico 

36 

and the Virgin Islands. The water laws and water management needs in these areas 

vary greatly. As an example, the water laws and needs in New York are vastly different from the water laws and needs in New Mexico. The Agency’s proposal does 

not sufficiently address this. One of our fundamental concerns is that the Proposed 

Groundwater Directive creates substantial uncertainty about the management of 

water supplies and the interaction of the Agency with respect to state allocated 

water rights. 

Historically, Congress and the courts have recognized limits on the Forest 

Service’s authority relating to the management of water resources. Congress passed 

the McCarran Amendment in 1952. Under the McCarran Amendment the United 

States waived its sovereign immunity to be sued in a dispute relating to water 

rights and cannot object to the application of a state law under such a proceeding. 

The McCarran Amendment also ratified the legal framework that the Federal 

Government must utilize to validate its state granted water rights, treating Federal 

and non-Federal water right holders alike. In addition, as noted by the Supreme 

Court in 1978, in U.S. v. New Mexico, this authority is not boundless. It largely extends to surface water resources and, as Justice Rehnquist stated in the opinion of 

the Court: ‘‘Congress intended that water would be reserved only where necessary 

to preserve the timber or to secure favorable water flows for private and public uses 

under state law (emphasis added).’’ 

In addition to creating an additional permitting burden we are worried that these 

provisions would adversely impact water supply affordability. Millions of individuals 

depend on NWRA’s members to provide a clean, reliable and affordable supply of 

water. Our members are dedicated to meeting this charge. We are concerned that 

the Proposed Groundwater Directive would drive up water costs. There are many 

portions of the Proposed Groundwater Directive that we could note to discuss these 

concerns but we will highlight section 2562.1 and section 2563.3. 

Section 2562.1 states: 

In lieu of accessing water from NFS lands, encourage public water suppliers 

and other water users to employ new treatment technology to meet water 

supply needs when water quality in an existing water source has degraded 

or become polluted. 

NWRA’s members are proud to be on the cutting edge of water supply technologies and many of our members are actively engaged in researching, planning 

and implementing these technologies. It is unclear what the Agency would do to ‘‘encourage’’ water suppliers to use new treatment technologies. We believe that water 

supply decisions should be conducted in an environmentally sensitive manner and 

driven by water supply demands and community needs. Responding to climate variability and the growing demand for water will require the responsible consideration 

of all available options. Our members are concerned that the Proposed Groundwater 

Directive may unnecessarily limit these options. It is also important to note that 

new treatment technologies can be more costly than traditional water supply options 

and can also be very energy intensive. 

NWRA believes that Section 2563.3 could also lead to increased water costs. It 

states that the Forest Service will: 

Deny proposals to construct wells on or pipelines across NFS lands which 

can reasonably be accommodated on non-NFS lands and which the 

proponent is proposing to construct on NFS lands because they afford a 

lower cost and less restrictive location than non-NFS lands (FSM 2703.2). 

NWRA does not understand why the Forest Service would issue a de-facto denial 

of a water supply project that could yield a more affordable water supply. The 

Groundwater Directive does not define ‘‘reasonably.’’ This requirement is excessively 

ambiguous and ignores the fact that water infrastructure can be constructed in a 

manner that benefits both people and the environment. Evaluating all alternatives 

could be a very time consuming process, and could delay already planned and vital 

water projects. There are few other ‘‘reasonable’’ alternatives to developing facilities 

off of NFS lands in the mountains of the western United States. In some western 

counties the Forest Service can hold upwards of 80 percent of the land. We also fail 

to understand why the Forest Service is openly embracing a policy that they know 

will directly increase water costs for people throughout the West. 

The Groundwater Directive provides for collaboration with other Federal agencies, 

such as experts from the USGS, state, tribal, and local agencies, and other organizations; noticeably absent is the Bureau of Reclamation, irrigation districts, and other 

water providers who are the largest distributors and users of water resources, many 

of which have existing water systems on Forest Service lands. 

37 

Our primary concerns with the Groundwater Directive are centered on its interaction with state water law. However, I also wanted to note that this proposal 

wouldn’t be implemented in a vacuum. We are concerned that the Forest Service 

will attempt to tie permit approval to the modification of a state issued water right. 

As discussed earlier in my testimony, the Forest Service has already attempted this 

in regard to ski area permitting and we are concerned that the agency will attempt 

to apply similar policies to water users. 

CONCLUSION

NWRA and our members are proud to perform a vital service by helping to supply 

the water that grows food that the world depends on. Regulations have a role in 

our society and when appropriately implement can be beneficial. However, if implemented in their current forms the pending WOTUS, Ski Area Water Rights 

Directive and Groundwater Directive will make it harder to meet current and future 

water needs for both agricultural and municipal water users. These proposals will 

make it harder to respond to the challenges posed by climate change, make it harder to feed the world and grow the economy. 

Meeting current and future water supply needs a major challenge. Meeting these 

needs will require collaboration, creativity and flexibility. NWRA members are 

ready to work with the subcommittee and Federal agencies to meet these needs. 

Thank you for the opportunity to testify today and for your attention to the 

critical issues facing water users. 

QUESTIONS SUBMITTED FOR THE RECORD BY THE HON. DAN NEWHOUSE TO

TOM MYRUM, WASHINGTON STATE WATER RESOURCES ASSOCIATION

Question 1. Testimony presented to this committee last year indicated that 

current proposed water storage sites in the Yakima Basin could be impacted by the 

Forest Service’s Groundwater Directive since many of the sites are on Forest Service 

lands. As you know, some of the new storage planned in the Yakima Basin would 

be for multiple uses, including cold-water fish flows. Would the Groundwater 

Directive make it harder for conservation projects like this to get built? 

Answer. The Yakima Basin Integrated Plan presents each action such as the coldwater fish flow objectives as a single unified set of actions each dependent on the 

other. Any additional regulatory overlays could affect the entire project. The Forest 

Service’s Groundwater Directive seeking to establish a Federal reserved groundwater right would affect the water supply balance in the Yakima Basin thus effecting the most fundamental underpinnings of the Integrated Plan. Any future 

attempts by the U.S. Forest Service or other Federal agency to establish water 

rights must be part of the state’s water right system managed by the Washington 

State Department of Ecology. Following Ecology’s necessary path will insure that 

water rights are allocated in accordance with the well-established prior appropriation doctrine of ‘‘first in time is first in right.’’ Any new water right would be junior 

to all others. 

Question 2. Throughout today’s testimony, we’ve heard time and again that 

there’s confusion as to what some of these proposed regulations could mean at the 

local level. We have also heard that there was little to no communication prior to 

the issuance of these proposals—particularly the Forest Service’s Groundwater 

Directive—with the states and local governmental entities. Was there a breakdown 

in communication between the Federal Government and the state and local governments and water and power districts impacted by the proposals? What is the practical impact of this lack of communication? 

Answer. The U.S. Forest Service’s lack of communication and general disregard 

for the state and local impact of their misguided attempt to establish a Federal reserved groundwater right led to confusion and alarm at the local level. I can only 

assume that the state agencies were caught off guard at the same time. The sensitive nature of the water balance associated with a prior appropriation system of 

water rights, such as we have in Washington State, cannot be understated. It is 

hard to believe that the U.S. Forest Service professionals could not have had some 

appreciation for the potential chaotic impact of their proposal as it relates to water 

rights. Water rights establish key relationships among water users in any river 

basin. The U.S. Forest Service’s attempt to interject themselves into this system 

without going through the proper process threatened to upset the delicate balance 

of water use and water user relationships. 

38 

Question 3. You testified that the Bureau of Reclamation’s facilities could be 

significantly impacted by the Waters of the U.S. and the Groundwater Directive. 

Fortunately, the Forest Service is here to answer the latter but the Bureau of 

Reclamation chose not to answer questions today. Mr. Myrum, is it correct to say 

that the Bureau of Reclamation has made investments in Washington State and 

could make investments in new storage at a later point? Would these investments 

be impacted by both proposals? 

Answer. The EPA and USACE Water of the United States jurisdictional clarifying 

rule injects uncertainty into any project permitting system. Projects are planned 

with certain permitting expectations established during the project planning phase 

and the environmental compliance phase. If Clean Water Act jurisdictional waters 

are expanded to areas not previously considered jurisdictional, it is conceivable that 

projects such as the Yakima Basin Integrated Plan and its numerous individual 

projects could face new permitting or at least the uncertainty of whether or not additional permitting is necessary. This confusion can cost time and money for any 

project. As I have mentioned above the U.S. Forest Service’s guidance could affect 

the fundamental water balance in any basin. The fully appropriated Yakima Basin’s 

water rights system would be thrown into chaos without the protection of the state’s 

water right permitting system. 

Dr. FLEMING. Thank you, Mr. Myrum. 

And, finally, last, but not least, Mr. Heinen, General Manager of 

the Jefferson Davis Electric Co-op, from my home state of 

Louisiana. You are recognized, sir, for 5 minutes. 

STATEMENT OF MIKE HEINEN, GENERAL MANAGER, 

JEFFERSON DAVIS ELECTRIC COOPERATIVE, INC., 

JENNINGS, LOUISIANA 

Mr. HEINEN. Thank you. Chairman Fleming, Ranking Member 

Huffman, members of the subcommittee, thank you for inviting me 

to testify today. My name is Mike Heinen, I serve as General 

Manager of Jeff Davis Electric Cooperative Headquarters in 

Jennings, Louisiana. 

Our member-owned, member-controlled electric cooperative provides power for nearly 10,000 residential, commercial, industrial 

customers across five parishes in the immediate southwest corner 

of our state, representing more than 30,000 consumers. 

To us, in southwest Louisiana, which is home to 3 million acres 

of coastal wetlands, wetland does not mean wasteland. Our coast 

is very much an active coast, with nearly one-third of our state’s 

population living and working on or very near the Gulf of Mexico. 

We are concerned that the Environmental Protection Agency’s 

proposed Federal water grab goes too far in disturbing a delicate 

public-private balance by imposing additional unnecessary permitting requirements, adding great burdens and bureaucratic red tape, 

while further restricting our opportunity to continue economic 

progress, and threatening our cooperative’s ability to deliver safe, 

affordable, reliable electric power to our members. 

In my opinion, the current rules go beyond far enough. 

A prime example of the manner in which overreaching Federal 

policies have proven problematic and wasteful for our cooperative 

occurred in the wake of Hurricane Rita nearly 10 years ago. The 

storm completely destroyed our branch office located in Cameron, 

Louisiana, which was established to serve the residents and 

commercial consumers along the coast. A track of land was then 

generously donated to the cooperative by one of the cooperative’s 

39 

long-term directors, Mr. Charles S. Hackett. He donated 5 acres of 

land 25 miles north of Cameron to rebuild our branch office. 

The current level of Federal oversight through the Clean Water 

Act caused delays and expenses to the cooperative in the form of 

environmental surveys, flood plain surveys, permits, and inspections that amounted to thousands of dollars being spent before the 

first shovel of dirt was even turned. 

During that process it was discovered that 1.5 of the 5 acres was 

declared wetlands because of the presence of a certain species of indigenous vegetation. This land was farm land, and laid idle for several years because Mr. Hackett no longer wanted to have it farmed. 

It was not wetlands. Because this certain vegetation was found on 

the property, according to Federal guidelines, nothing could be 

done with the land until mitigation took place. 

In order to take advantage of Mr. Hackett’s generosity, Jeff 

Davis Electric was forced to purchase 1.5 acres of wetlands from 

the Federal Government in an unknown location for environmental 

mitigation. The cost to Jeff Davis Electric Co-op and its members 

was $30,000. This was an unforseen expense that had to be passed 

on to our consumers, who ultimately bear the cost for unnecessary, 

burdensome Federal oversight and regulation. 

This is the type of burdensome Federal regulation that we need 

less of, not more. An expansion of the Clean Water Act, as currently proposed in EPA’s Waters of the United States rule, would 

complicate, not simplify our Co-op’s routine operations and maintenance. Ambiguous definitions in the proposed rule will vastly expand the reach of the Clean Water Act, cause major problems for 

our consumers in Louisiana’s coastal plains. For instance, simply 

performing maintenance on our power lines, poles, and other infrastructure to ensure reliability for our customers would require additional permitting, additional costs, and unreasonable delays. 

It is my personal view, and the view of Jeff Davis Electric, that 

the stringent Federal rules and regulations currently in place, in 

addition to those imposed by state and local authorities, are useful 

and effective in protecting our wetlands, our precious resources, 

and our natural habitat. The stringent existing requirements already make it difficult to build infrastructure to new commercial 

enterprises, and adequately maintain right-of-way to ensure costeffective service reliability for our members. 

I urge the subcommittee to seriously consider the impact of 

Federal rules and regulations on the people of southwest Louisiana 

and the members of Jeff Davis Electric, many of whom have spent 

their lives in the area. Our region has benefited greatly from the 

efforts of the state and Federal Government, as well as private 

agencies, to protect and preserve our wetlands. For this we are 

grateful. However, there is a tipping point where unnecessary mandates and restrictions intended to help our people become punitive 

and inhibit the ability of our economy to grow and our people to 

prosper. Any policies adopted by the Federal Government need to 

be smart and effective in achieving the desired outcome without 

negative consequences that diminish the ability of our rural cooperative members to continue their way of life and provide for their 

families. Thank you. 

[The prepared statement of Mr. Heinen follows:] 

40 

PREPARED STATEMENT OF MICHAEL J. HEINEN, GENERAL MANAGER, JEFFERSON

DAVIS ELECTRIC COOPERATIVE, JENNINGS, LOUISIANA

INTRODUCTION

Chairman Fleming, Ranking Member Huffman, members of the subcommittee, 

thank you for inviting me to testify today on ‘‘Proposed Federal Water Grabs and 

Their Potential Impacts on States, Water and Power Users and Landowners.’’ My 

name is Michael J. Heinen and I serve as General Manager of Jeff Davis Electric 

Cooperative headquartered in Jennings, Louisiana. Our member-owned, membercontrolled electric cooperative provides power for nearly 10,000 residential, commercial and industrial consumers across five parishes in the immediate southwestern 

corner of our state, representing more than 30,000 consumers. I am a proud native 

and life-long resident of our cooperative’s service territory, which is bordered by the 

state of Texas to the west and the Gulf of Mexico to the south, with numerous rivers 

and tributaries flowing from the north and three substantial bodies of brackish 

water in Calcasieu, Grand and White lakes. 

To us in southwest Louisiana, which is home to 3 million acres of coastal wetlands, ‘‘wetland’’ does not mean ‘‘wasteland.’’ Our coast is very much an active coast 

with nearly one-third of our state’s population living and working on or very near 

the Gulf of Mexico. The area’s proximity to the Gulf waters makes it an attractive 

draw for a variety of industries including oil and gas interests, fisheries, transportation, livestock, farming and much more. As a key part of the region’s economic 

development engine, Jeff Davis Electric serves eight natural gas processors along 

with other commercial and industrial enterprises. Moreover, our service area is a 

national leader in waterfowl and alligator harvests, is home to important state and 

Federal wildlife refuges which cover 285,000 acres and attract 20,000 visitors a 

month to the coast’s 26 miles of public beaches. Cameron Parish, for example, is a 

source point for the U.S. strategic oil reserve, a major portal for the petrochemical 

industry, a vital link to major ports located in New Orleans, Lake Charles, Houston 

and Galveston and an anchor for oil and gas maritime repair and service. More than 

$2.3 billion in Liquefied Natural Gas and related projects are either under construction or on the drawing board in the heart of our service territory, while agriculture 

and aquaculture enterprises total $41.6 million each year. 

Those of us who have lived our entire lives in this sportsman’s paradise know that 

while the region has its rewards both tangible and intangible, it also has its share 

of challenges. We are intimately familiar with the many factors that threaten the 

very existence of our homeland. Many of our citizens are fully aware of the fragility 

of our land and our water and are well-versed in the conditions that have the potential to undermine our way of life. Erosion, storms and storm surge, drought, repeated flooding, saltwater intrusion and even ‘‘man-made’’ disasters such as the BP 

oil spill of 2010 all threaten the sustainability of our region. 

JEFF DAVIS ELECTRIC’S CONCERN WITH ‘‘PROPOSED FEDERAL WATER GRABS’’ 

In the interest of fairness, we are mindful of the fact that it was an executive 

order signed by President Franklin Delano Roosevelt on May 11, 1935, and subsequent Federal action that catalyzed the electric cooperative movement and led to the 

economic advancement and improved quality of life for millions of rural citizens 

across the country. And while it’s true that rural electrification was sparked by an 

act of the executive branch of the Federal Government, I would like to point out 

that the formation of the Rural Electrification Administration did not directly build 

one rural electric cooperative, nor did it force, mandate or require that one cooperative be constructed; this progressive New Deal initiative simply and appropriately 

provided those residing in the U.S. countryside a less cumbersome pathway for creating cooperative organizations for themselves, on their own, according to their own 

vision, in their own communities, to serve their own interests. It was a low-cost loan 

mechanism made available to privately held, independent, locally controlled power 

providers. It was, and was intended to be, a public-private partnership in every 

sense of the term, one that worked best when government provided the proper support and then stepped out of the way to let the local people apply the solutions that 

made the most sense for their particular circumstances. 

We are concerned that the Environmental Protection Agency’s proposed Federal 

water grab goes too far in disturbing a delicate public-private balance by imposing 

additional unnecessary permitting requirements, adding greater burdens and bureaucratic red tape while further restricting our opportunity to continue economic 

progress and threatening our cooperative’s ability to deliver safe, affordable, reliable 

electric power to our members. In my opinion, the current rules go beyond far 

enough. 

41 

A prime example of the manner in which overreaching Federal policies have 

proven problematic and wasteful for our cooperative occurred in the wake of 

Hurricane Rita nearly 10 years ago. On Sept. 24, 2005, roughly 3 weeks after Hurricane Katrina more famously made landfall on the eastern side of our state, Hurricane Rita struck our coastline in southwest Louisiana, causing $4.7 billion in damage across the region and destroying roughly 40 percent of Jeff Davis Electric’s 

10,086 accounts along 1,600 miles of electrical power distribution and transmission 

lines. The storm completely destroyed our branch office located in Cameron, LA, 

which was established to serve the residents and commercial consumers along the 

coast. A 5-acre tract of land was generously donated to the cooperative by one of 

the cooperative’s long-time directors, Mr. Charles S. Hackett 25 miles north of Cameron to rebuild the branch office. The current level of Federal oversight through the 

Clean Water Act caused delays and expenses to the cooperative in the form of environmental surveys, floodplain surveys, permits and inspections that amounted to 

thousands of dollars being spent before the first shovel of dirt could be turned. During that process, it was discovered that two of the 5 acres were declared wetlands 

because of the presence of a certain species of indigenous vegetation. This land was 

farm land that had lain idle for several years because Mr. Hackett no longer wanted 

to have it farmed. It was not wetlands. Because this certain vegetation was found 

on the property, according to Federal guidelines, nothing could be done with the 

land until mitigation took place. In order to take advantage of Mr. Hackett’s generosity, Jeff Davis Electric was forced to purchase 2 acres of wetlands from the Federal Government in an unknown location for environmental mitigation. The purchase cost Jeff Davis Electric and its members $30,000. This was an unforeseen expense that had to be passed on to our consumer/members who ultimately bear the 

cost of unnecessarily burdensome Federal oversight and regulation. Expanding the 

oversight of the Federal Government would only add to the cost of providing electrical distribution service to our members who already face burdensome regulations 

and restrictions of use to land which they presently own. Again, this is just one 

example. 

This is the type of burdensome Federal regulation that we need less of, not more. 

An expansion of the Clean Water Act as currently proposed in the EPA’s ‘‘Waters 

of the United States’’ rule would complicate, not simplify, our Co-op’s routine operations and maintenance. The ambiguous definitions in the proposed rule will vastly 

expand the reach of the Clean Water Act and cause major problems for our customers in Louisiana’s coastal plains. For instance, simply performing regular maintenance of our power lines, poles and other infrastructure to ensure reliability for 

our customers would require additional permitting, additional costs, and unreasonable delays. 

We have faced and overcome major challenges as we lie in the direct path of occasional hurricanes. However, under additional Federal regulations as proposed by the 

EPA, restoring the electrical lifeline to our customers after a similar natural disaster would be much more arduous and perhaps unattainable. 

CONCLUSION

It’s my personal view and the view of Jeff Davis Electric that the stringent 

Federal rules and regulations currently in place, in addition to those imposed by 

state and local authorities, are useful and effective in protecting our wetlands, our 

precious water resources and our natural habitat. The stringent existing requirements already make it difficult to build infrastructure to new commercial enterprises and adequately maintain right-of-way to ensure cost-effective service 

reliability for our members. 

Again, as a lifelong resident of southwest Louisiana and an avid outdoorsman, I 

have seen our land besieged by numerous disasters both natural and man-made. 

And I have also witnessed the resilience of our land and how it has the capacity 

to renew, reinvigorate and heal itself despite the degree of damage sustained. Major 

Hurricanes, from Audrey and Andrew to Rita and Ike, have pummeled our coastline 

over the decades, yet the land and its people continue to stand strong in the face 

of hardship. 

I urge the subcommittee to seriously consider the impact of Federal rules and regulations on the people of southwest Louisiana and members of Jeff Davis Electric, 

many of whom have spent their entire lives in the wetlands. Our region has benefited greatly from the efforts of the state and Federal Government, as well as private agencies, to protect and preserve our wetlands, and for this we are grateful. 

However, there is a tipping point where unnecessary mandates and restrictions intended to help our people become punitive and inhibit the ability of our economy 

to grow and our people to prosper. Any policies adopted by the Federal Government 

42 

need to be smart and effective in achieving the desired outcome without the negative unintended consequences that diminish the ability of our rural cooperative 

members to continue their way of life and provide for their families. We prefer to 

see the Federal Government as a partner in environmental preservation, not a deterrent to progress. 

The five Louisiana Parishes served by Jeff Davis Electric 

Dr. FLEMING. Thank you, Mr. Heinen. Thank you, panel, for your 

testimony. At this point we will begin our questions for witnesses. 

To allow Members to participate, and to ensure we can hear from 

all of our witnesses today, Members are limited to 5 minutes for 

their questions. However, if Members have additional questions, we 

can have additional rounds of questioning, where Members can 

submit their questions for the hearing record. 

After the Ranking Member and I pose our questions, I will then 

recognize Members alternatively on both sides of the aisle, in order 

of seniority. I now recognize myself for 5 minutes. 

My first question is for both Mr. Sullivan and Mr. Heinen. The 

statement was made that the Clean Water Act is not under this 

committee’s jurisdiction, but that is hardly the point. The point is 

that we have many people who are under our jurisdiction who are 

being harmed or potentially harmed by what we are talking about 

here today. 

So, here is the question. Everyone shares the goal of having 

clean water and safe drinking water, but there has been some confusion on the implementation of the Clean Water Act due to two 

43 

Supreme Court rulings. The proposed Waters of the U.S. rule purports to clear up this confusion and provide regulatory certainty. 

Do you think it achieves this purpose? 

Mr. Sullivan and Mr. Heinen, do you think that these new regulatory positions that have been taken help clear up that confusion? 

Mr. SULLIVAN. No, I think it adds—— 

Dr. FLEMING. Microphone, please. 

Mr. SULLIVAN. No, I think it adds to the confusion. Everything 

that we have dealt with, starting going back to guidance— 

guidance, we had some clarification, we thought, from both the 

Army Corps of Engineers and the EPA, as far as reclamation and 

recycled water goes. And when it came to the draft rule, there 

wasn’t one thing that they had agreed upon. It was far more draconian and no specificity as to what we were trying to deal with. It 

just made it unwieldy, and that is—— 

Dr. FLEMING. So you have seen expansion—— 

Mr. SULLIVAN. We have seen—— 

Dr. FLEMING [continuing]. Of powers, of Federal powers, without 

clarification, perhaps even more vagueness. 

Mr. SULLIVAN. Yes, it made it much more vague in what we 

would try to deal with. 

Dr. FLEMING. And you have to deal with the technicalities of 

these regulations. So you are right there, on the ground, in terms 

of having to implement these, or abide by these. 

Mr. SULLIVAN. On a daily basis. 

Dr. FLEMING. Right. OK. Mr. Heinen? 

Mr. HEINEN. Plain and simple, until I see it, the final in writing, 

nothing is clarified, because it changes constantly. We have been 

dealing with that for many years. So let me see it in writing, let 

me have a chance to look at it and see what the final ruling is. 

So—as far as for clarification, there is none. 

Dr. FLEMING. Well, we had a hearing on this just a year ago, and 

both sides of the aisle agreed there need to be clarifications. Have 

we sent any? 

Mr. HEINEN. No. 

Dr. FLEMING. OK. Thank you. Now—again, Mr. Heinen—an 

electric cooperative witness testified last year that it would take 

longer to permit the building of a new electricity transmission and 

distribution line than to build it. You testified that your ratepayers 

had to pay for Clean Water Act mitigation costs that resulted from 

Hurricane Rita. How will the WOTUS proposal impact new electricity lines built by your cooperative, or built by the Southwestern 

Power Marketing Administration, which serves some rural utilities 

in Louisiana? 

Mr. HEINEN. Basically, more regulations, more permits, more red 

tape to deal with adds cost, and cost adds that to the basic consumer at the end of our line, who is already struggling to make 

ends meet. 

Dr. FLEMING. OK. More regulation, more red tape, more cost. 

Mr. HEINEN. That is correct. 

Dr. FLEMING. Mr. Ogsbury, Mr. Sullivan, Mr. Myrum, and Mr. 

Heinen, throughout today’s testimony we have heard time and 

again there is confusion as to what some of these proposed regulations could mean at the local level. We have also heard that there 

44 

is little or no communication prior to the issuance of these proposals, particularly the Forest Service’s Groundwater Directive 

with the states and local governmental entities. 

Was there a breakdown in communication between the Federal 

Government and the state and local governments, and were governments and water and power districts impacted by these proposals? Just quick answers from each of you. 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

there was insufficient communication with states during the development of those proposals. 

Dr. FLEMING. OK. Mr. Sullivan? 

Mr. SULLIVAN. Yes, we didn’t learn about it until the last minute, 

and then there was actually no communication. 

Dr. FLEMING. OK. Mr. Myrum? 

Mr. MYRUM. Came as a surprise to all of us, I can assure you. 

And our State Department of Ecology had no idea. 

Dr. FLEMING. Mr. Heinen? 

Mr. HEINEN. Short answer is yes. 

Dr. FLEMING. OK. So, in the last seconds of my questions, I 

would have to say that this administration is notable for its overreach in many areas, in terms of administration. In fact, the 

Supreme Court—even decisions as one lopsided as now nine to 

zero, has shown that this administration has gone way past its authority. And I would just have to say this is just another example 

of what we are seeing today in the name of clarification. 

With that, I yield to the Ranking Member for questions. 

Mr. HUFFMAN. Thank you, Mr. Chairman, and thanks to the 

witnesses. 

Professor Buzbee, you talked about the Supreme Court rulings 

that have clarified, but also added uncertainty to this issue of what 

constitutes Clean Water Act jurisdiction over various waters. How 

many different tests do we now have under Supreme Court decisions by different justices that are supposed to tell us the answer 

of what constitutes the scope of authority under the Clean Water 

Act? 

Mr. BUZBEE. It is difficult to give an exact number. What you 

have is a unanimous Supreme Court, and Riverside Bayview Homes 

allowed the Federal Government to set the line between land and 

water and protected what are called adjacent waters. 

Then the Solid Waste Agency Northern Cook County case— 

SWANCC, as we all call it—said that protecting isolated waters, 

due to migratory bird use, was too far. And that had some other 

language that left things somewhat unclear, which is why the 

Rapanos case ended up so important. And then that case ended up 

actually splitting three different ways, and the ruling most people 

think is most important is one by Justice Kennedy that then had 

a two-pronged analysis that was called for. 

So, numerically—and then, to make it more complicated, you 

actually had two different majorities opining on what waters deserved protection. So you end up having a great deal of confusion, 

which increases permitting costs, makes it harder for people on the 

ground, both those who want to use land or want to permit, and 

those who are trying to act as responsible officials. They all 

struggle. 

45 

Mr. HUFFMAN. Right. Thank you for that. So, I guess I could understand, then, why Mr. Myrum would be concerned about reinterpretation and cycles of interpretation and litigation. But, at the 

same time, I think his testimony makes a strong case for why we 

need kind of, once and for all, to resolve all of these chaotic and 

conflicting interpretations, and have a single standard. 

We have a situation where Mr. Heinen was blindsided by the 

finding that a piece of property was designated a wetland based on 

a plant being present. Mr. Heinen, wouldn’t you agree that it 

would be far preferable to have a science-based rule that looks at 

the water connectivity to downstream waters for water quality 

purposes, rather than have something random, like the presence of 

a plant, given all this lack of certainty blindside you with a 

determination? 

Mr. HEINEN. It depends on who the scientist is. 

Mr. HUFFMAN. Well—— 

Mr. HEINEN. It is interpretation. A lot of people say that particular plant can only be in wetlands. A scientist has said that. 

Mr. HUFFMAN. Yes. 

Mr. HEINEN. That is not the case in my—— 

Mr. HUFFMAN. Wouldn’t you like to know what that means, 

though, so as a piece of property might be—— 

Mr. HEINEN. Clarification would be nice, yes—— 

Mr. HUFFMAN [continuing]. Given to you, you would know? 

Mr. HEINEN. Clarification would be nice. Yes, I agree. 

Mr. HUFFMAN. It seems to me that some of this comes down to 

getting the final rule and reading it, and seeing if it says what officials from the administration have been promising us it will say. 

So, Mr. Sullivan, to your point—and I want to commend you for 

your water recycling, by the way. We are going to need a lot more 

of that to get through the summer ahead of us. So thank you for 

your leadership there. But you are concerned that you haven’t yet 

seen anything in writing that would address your concerns about 

water recycling. 

I am aware, though, that the Administration has said as recently 

as a couple of months ago that they are working to define these 

things, that they are committed to making sure that the final 

rule—in fact, I will quote Director McCarthy—‘‘You will have my 

assurance that these things that have never been in before, that 

we have never talked about, will not be in the final rule.’’ She is 

talking about water re-use and recycling facilities. 

So, assuming she does what she says she is going to do, would 

that not address your concern about water recycling? 

Mr. SULLIVAN. Well, I think our concern is we don’t know what 

she is going to do. 

Mr. HUFFMAN. Well, she has told you what she is going to do. 

Mr. SULLIVAN. No, she—there is no clarification to that. We did 

that in guidance, and that didn’t work. And when it got to the 

rule—we don’t know what the final rule—the draft rule didn’t 

specify anything, wasn’t clear, was ambiguous, and would create 

some concern. So, when the rule comes out, we would hope—if the 

rule comes out, and to maybe satisfy everybody—that there be at 

least a 60-day final comment period, so that people could address 

it. 

46 

There is no one here that is against the Clean Water Act. It is 

how much further you are going to go with it—— 

Mr. HUFFMAN. Fair enough. 

Mr. SULLIVAN [continuing]. That doesn’t guarantee anything. 

Mr. HUFFMAN. I just want to wrap up with Mr. Ogsbury. Thanks 

for your testimony on behalf of the Western Governors. And I hear 

you loud and clear when you want to make sure that states have 

primacy when it comes to the allocation and administration of 

water. And I know that, in the past, the Western Governors have 

extended that position to legislation proposed in Congress that 

would preempt state water law—for example, in California. 

But I did not see a position by the Western Governors bill on a 

sweeping preemptive bill proposed by Mr. Valadao and others last 

year that would have preempted California water rights. The state 

of California vehemently opposed it. I am assuming that this position, though, remains constant, that you continue to oppose preemptive Federal acts on water that interfere with state primacy on 

water allocation, water rights, water management. 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

members of the subcommittee, I would submit that the statement 

in the Governors’ resolution that I recited before speaks for itself 

on the Governors’ commitment to state primacy over water 

resources. 

Mr. HUFFMAN. Thank you. 

Dr. FLEMING. The gentleman yields. The Chair recognizes Dr. 

Gosar for 5 minutes. 

Dr. GOSAR. Thank you very much, Mr. Chairman. 

Supervisor Sullivan, it is good to see you again. 

Mr. SULLIVAN. Thank you. 

Dr. GOSAR. Now, you testified that the National Water Resources 

Association is concerned that the proposed WOTUS rule will make 

it more difficult to meet water needs. Given the historic drought 

and other challenges we have in the West, can you elaborate a little more about why that is so concerning? I mean, particularly from 

your state and my state next door—the state of Arizona? 

Mr. SULLIVAN. Sure. We just believe that, because there is no 

specificity, what we are asking for here, that it makes it much 

more difficult for us to put in a new project, to create new water 

supply. And we have enough hoops to go through right now that 

is in compliance with the Clean Water Act. We don’t know why we 

are trying to add to it, because this, to us, looks like we are adding 

to the requirements. 

Dr. GOSAR. Now, you made a question that NWRA members 

would prefer to invest their public funds in infrastructure and environmental enhancements, rather than litigation. That is a great 

point. How concerned are you that the vagueness in WOTUS will 

lead to your members wasting considerable amounts of money on 

frivolous lawsuits? 

Mr. SULLIVAN. Right now we are dealing with one small group 

that is suing our district over the Clean Water Act. This particular 

group has about 130 lawsuits, starting in northern California, and 

now they are working their way down to southern California. It is 

a money grab and we are going to stand up on this one, because 

we don’t believe that we are violating anything within the Clean 

47 

Water Act. And because the Clean Water Act is not specific, it is 

wide open, it is hunting season for any attorney that would like to 

come in and take our money. 

Dr. GOSAR. So you also testified that you were very concerned 

that WOTUS would make groundwater jurisdictional. Even EPA 

Administrator McCarthy testified a couple of months ago that the 

rule was so vague it could apply to groundwater. I mean in her 

own words. 

Can you elaborate on why this is such a concern for the Ag community and private water users? 

Mr. SULLIVAN. Sure. We believe that, actually, everybody— 

especially in our agricultural areas, everybody is actually the steward of their own environment. And I think that we have had a 

pretty good chance, or pretty good opportunity, at this time to 

prove ourselves. We have been able to expand our agricultural uses 

through the use of reclaimed water. And part of that came through 

some grants from the Bureau of Reclamation. I mean we have been 

able to do a lot. 

Dr. GOSAR. Mr. Buzbee, with so many directives out there that— 

there are so many, it is just a myriad, it is mind-boggling. Don’t 

you think that the agency should work with Congress to make sure 

that its intent is right? 

Mr. BUZBEE. Certainly, I think the agency should always be respectful of Congress and work with it. But, at the same time, an 

agency has to abide by the law as enacted. 

Dr. GOSAR. Well, we are really interpreting it beyond the scope 

of what was intended. 

Mr. BUZBEE. I don’t believe so. And I think that we have, at this 

point, the Supreme Court and the three decisions have certainly 

left uncertainty where there had been certainty for three decades. 

But there really was a bipartisan, very stable period where, for 

three decades through the Reagan administration, there was a consensus on what was protected, and why, and how it should be protected, and those regulations barely changed. 

We still have the same Clean Water Act today, and I think, my 

sense is these regulations are—especially with the science report— 

really bring a lot of clarity. Someone who now has a piece of land 

is trying to figure out how they would be dealt with, you have the 

connectivity report, which I think—being over 400 pages long, and 

I assume the final regulations will, as with the draft, connect the 

two together, and people will have a much firmer sense of what is 

required. 

Dr. GOSAR. Director Ogsbury, would you agree on that conversation, that Congress should be consulted in regards to the new 

directives on WOTUS before pursuing? 

Mr. OGSBURY. I certainly agree that, because states have primacy with respect to management of water resources, that states 

should be consulted at the very front end. 

Dr. GOSAR. Supervisor Sullivan, how about you? I mean you see 

this from the application from time and on the ground. Would you 

agree that Congress should be part of this rulemaking process, engaged properly, to see if it is germane as to the application? 

Mr. SULLIVAN. Absolutely. I think that is where the representation of the people and the local elected officials reside, whether it 

48 

is from local government, state government, up to the Congress. 

And I believe that that is where the laws should be made, and 

should not, and that is where we ought to listen to it. 

Dr. GOSAR. So, one last point. The narrative that we heard from 

the rulemaking process was crystal clear. 

Mr. SULLIVAN. No. 

Dr. GOSAR. That is what I thought. Thank you. 

Dr. FLEMING. The gentleman yields. The Chair recognizes Mrs. 

Napolitano for 5 minutes. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. And welcome to 

the witnesses. 

I would like to, first off, introduce two letters to the record, one 

dated November 14th, last year and one November 5th. One is 

from the California Water Board, the other one is from CASA, the 

California Association of Sanitation Agencies. Water Board says 

that they strongly support the agency’s intent to adopt regs to provide clarity. That is what we are all asking for, is clarity. 

Comprehensive rulemaking represents a major improvement over 

status quo. 

The second letter says it does not—they also endorse a proposed 

rule clarification that the agencies do not intend to alter the regulation of groundwater at the Federal level. In fact, proposed rule 

codifies a number of waters and features. The agencies have a longstanding practice, generally considered not to be Waters of the 

United States. 

Now, both EPA and Army Corps fall under the jurisdiction of 

Transportation, of which I am the Ranking Member. And we have 

just recently held a hearing with Ms. McCarthy, and we asked repeatedly the same questions you are being asked today. And she 

has stated unequivocally that should there be questions after the 

final rule—and, by the way, there were over a million responses. 

Of course, a lot of them were duplicates. But the comment period 

was for 207 days. Did any of you reply? Did you submit any comments during that period, any of you? 

Mr. SULLIVAN. Yes, we did supply a lot of comments. And just 

so that you know, there basically were 216 water districts that replied with comments. They are all large water districts. There are 

14 storm water associations that—— 

Mrs. NAPOLITANO. OK, I get that. I understand that. But I wanted to know, because I don’t remember any one of you coming to me 

and talking to me about it, either. Have you? 

Mr. SULLIVAN. I believe that we did. 

Mrs. NAPOLITANO. When? 

Mr. SULLIVAN. It was in last October, November. 

Mrs. NAPOLITANO. All right. But I was not the Ranking Member 

then on Transportation, sir. So that makes a little bit more of a difference. And being able to understand the questions that you bring 

up that we can then take into consideration and ask those agencies 

to clarify, to be able to help us be able to be effective. 

Second, I understand that the rule will be clarified, what, some 

time before summer. Then it will be more comment period, I understand. Or at least I hope there will be. What are we looking at, in 

terms of being able to bring before this body, or the Transportation 

49 

Subcommittee, to be able to have information so, when you see the 

final rule, what is it that we need to work with? 

Because in some instances—and Ms. McCarthy was requested— 

why was there a difference between region’s interpretation of the 

application of the different rules or regulations? There are problems. We know that. She knows that. Why are we not dealing with 

those, instead of bringing to the forefront, and dealing at the local 

level, or directly with that chief of theirs, to be able to clarify and 

make sure that we understand that she gets to those individuals 

and brings them to the forefront or up to speed into what they need 

to do? 

[No response.] 

Mrs. NAPOLITANO. I mean, we can argue that unless we change 

that, we are not going to have the quality across—for the 

implementation of what should be to protect our waters. 

Comment, anybody? 

[No response.] 

Mrs. NAPOLITANO. None? 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

Congresswoman Napolitano, members of the committee, we would 

be happy to provide all of WGA’s comments on the proposed rule 

to the subcommittee and to you, individually. 

Mrs. NAPOLITANO. Well, that would be nice. I don’t want tomes. 

I would like just a synopsis. 

[Laughter.] 

Mrs. NAPOLITANO. We have enough reading, thank you very 

much. 

But in order for us to understand what your issues are, we need 

to be able to have our staff to be able to clarify where you are coming from, so then we can be more specific about where we need to 

go with them. And I would love to have them come to our districts. 

And maybe my—I have a son living near you, and near Lake 

Elsinore. 

Mr. OGSBURY. Right. 

Mrs. NAPOLITANO. I understand the issue that you have in those 

areas. But we also have issues in all of southern California with 

water. So we all are interested in making sure that the agencies, 

all of them, work with us to be able to address some of the things 

that we all need to work on, regardless. Water is water. It is life, 

it is business, it is economy. So I would be more than happy to 

later talk to any of you. 

Thank you, Mr. Chair. 

Dr. FLEMING. The gentlelady yields back. The Chair recognizes 

Mr. McClintock for 5 minutes. 

Mr. MCCLINTOCK. Thank you, Mr. Chairman. I would like to 

begin by once again gently correcting my friend from California, 

who once again in this subcommittee has asserted that the Valadao 

legislation preempted California water rights. It did exactly the opposite, as has been explained to him time and again. 

Mr. HUFFMAN. Would the gentleman yield? 

Mr. MCCLINTOCK. Not yet. It protected California water rights 

from any encroachments, whether by Federal or state authorities. 

It was this provision that actually strengthened those rights. It 

50 

was supported by the Northern California Water Association, representing the senior water rights holders. 

The assertion of vastly expanded Federal jurisdiction over our 

waters I find particularly terrifying at a time when we are in the 

midst, in California, of not only the worst drought in recorded history, hydrologists are telling us it could be the worst drought in the 

last 1,200 years. Our snow pack is at 6 percent of normal. Our reservoirs are, many of them are nearing empty. 

The New Melones Reservoir is currently at 22 percent of capacity. And yet, this week the Bureau of Reclamation is spilling 30,000 

acre-feet of water—that is 10 billion gallons of water—in order to 

encourage steelhead trout to migrate to the ocean, which they generally tend to do without our helpful assistance. Ten billion gallons 

is enough to meet the annual residential needs of a population of 

about 300,000 people at a time when we are at the end of the rainy 

season, there is virtually no snow left in the mountains, and our 

reservoirs are becoming nearly depleted. 

And now we have a proposal by the Administration to vastly 

increase Federal jurisdiction over these waters. Mr. Myrum, 

Mr. Sullivan, I know why that terrifies me. What are your 

thoughts on the subject? 

Mr. SULLIVAN. Up to you, Tom. 

[Laughter.] 

Mr. MYRUM. Well, I—— 

Mr. SULLIVAN. I talked enough. No, it terrifies us that we still 

have a lot of drought-supported water supply to take care of. To 

put additional regulations in front of us to create new water and 

to bring water from different areas makes it very difficult for us 

to sustain something if this drought lasts another couple of years. 

So, to have this rule be established when we are struggling with 

a water supply at this point—and I don’t know of anybody in my 

area or most of them in California that have any problem with 

clean water right now. They can turn on the tap, and they get 

water, and it is clean. 

Mr. MCCLINTOCK. Well, the point I am trying to get at is there 

seems to be a complete lack of simple common sense in the Federal 

Government’s approach to these water issues. Have you seen that 

in your jurisdiction? And is that one of the reasons why you might 

be reluctant to see the Federal Government assert even more 

authority? 

Mr. SULLIVAN. Yes, the simple answer is absolutely. We had our 

experience from guidance, and then from guidance it went to the 

rule. And from guidance to the rule it was far expanded. That is 

what worries us. 

Mr. MCCLINTOCK. Well, as you know, the Bureau of Reclamation 

was supposed to be here today, but refused to join us. In a 2008 

excerpt from an Interior Department letter on the Clean Water Act 

jurisdictional issue, they had written, ‘‘In general, Reclamation has 

particular interest in Clean Water Act jurisdictional issues. Indeed, 

Reclamation and its project beneficiaries are in need of guidance to 

better understand when or whether its dams and irrigation facilities, including ditches, canals, arroyos, and other water delivery 

channels and works—collectively referred to as ditches—are considered jurisdictional waters, subject to regulation by the Army Corps 

51 

of Engineers, and the Environmental Protection Act under the 

CWA, or as tributaries to such waters. Likewise, Reclamation has 

an interest in understanding when waters adjacent to these facilities are jurisdictional, and when discharges into or from those 

facilities are subject to CWA jurisdiction and attendant permitting 

requirements.’’ 

It is interesting, because Reclamation says that it submitted testimony that it is satisfied that their facilities, including ditches, are 

not covered by the Waters of the U.S. proposal. Do you agree? Mr. 

Sullivan? 

Mr. SULLIVAN. Yes, we would agree. 

Mr. MCCLINTOCK. Mr. Mauck, is that your understanding, as 

well? 

Mr. MAUCK. I am sorry, I am not familiar with the Bureau of 

Reclamation and those statements. I am here to testify about my 

experience as a Clear Creek County Commissioner—— 

Mr. MCCLINTOCK. I see, I am sorry. How about Mr. Myrum? 

Mr. MYRUM. I understand the Bureau of Reclamation has an interest in the jurisdiction of the Clean Water Act over their facilities. As I mentioned during my testimony, the Clean Water Act has 

exercised jurisdiction over our facilities, either through Federal 

court decisions, or in some unintended ways. And the Bureau has 

not stepped up to try to counter that. 

I did mention the regulatory guidance letter, where they were a 

particular help, and that is nice. But they could do more. It would 

have been nice to see them here today to show their concern for 

our facilities, at least as much concern as we have. 

Mr. MCCLINTOCK. Thank you. 

Dr. FLEMING. OK. The gentleman’s time is up. The Chair now 

recognizes Mrs. Lummis for 5 minutes. 

Mrs. LUMMIS. Thank you, Mr. Chairman. Mr. Ogsbury, is 

California part of the Western Governors’ Association? 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

Congresswoman Lummis, yes, it is. 

Mrs. LUMMIS. Did California dissent from the position of the 

Western Governors’ Association? 

Mr. OGSBURY. With respect to adoption of that resolution, it is 

a resolution that reflects the collective voice of the Western 

Governors. The individual votes are not disclosed, and I am not exactly sure what that might have been, anyway. 

Mrs. LUMMIS. OK, thank you. Mr. Ogsbury, who determines how 

much groundwater can be withdrawn from a state’s borders, the 

state or the Federal Government? 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

Congresswoman Lummis, members of the committee, that would be 

the state. 

Mrs. LUMMIS. Well, while the Federal Government can have reserved surface water rights on Federal lands—back in my day we 

used to call that the Winters Doctrine. Is it still called the Winters 

Doctrine, by the way? Does anybody know? 

Mr. OGSBURY. Sure. 

Mrs. LUMMIS. OK, good. Well, I am not that dated, then. 

[Laughter.] 

Mrs. LUMMIS. And no comments from the peanut gallery on that. 

52 

Can the Federal Government have reserved rights in groundwater? Mr. Ogsbury? 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

Congresswoman Lummis, no—— 

Mrs. LUMMIS. That is what states do. 

Mr. OGSBURY [continuing]. Statutory Act of Congress, no Federal 

appellate court has ever held that Federal reserves—have upheld 

Federal reserve rights to groundwater. 

Mrs. LUMMIS. By the states? So the Federal Government cannot 

have reserved water rights in groundwater, reserved water rights? 

Not surface water rights. Reserved water rights in groundwater? 

Mr. OGSBURY. No Act of Congress or decision of the court, of a 

Federal appeals court has so held. 

Mrs. LUMMIS. Do you believe that the groundwater directive 

shifts groundwater authority away from states and to the Federal 

Government? 

Mr. OGSBURY. I believe that our comments on that directive reflected a concern that certain provisions of the directive could be 

interpreted to erode state authority. Fortunately, we are very 

pleased that the Forest Service has stopped its work on that rule, 

on that directive. 

Mrs. LUMMIS. If there is a shift in authority, could it lead to 

litigation, regulatory uncertainty? 

Mr. OGSBURY. Again, I would hope that the question is academic. 

I would like to take the Forest Service on its word that they have 

stopped work on this directive, and if they reinitiate such a directive, they will start from the top and consult states at the very 

front end. But, yes, if there were a shift in authority, then there 

is certainly potential for more regulatory confusion, more litigation. 

Mrs. LUMMIS. Thank you. Question for Mr. Sullivan. Is it correct 

to say that the Bureau of Reclamation has invested taxpayer dollars into your agency’s water recycling and groundwater recharge 

projects? 

Mr. SULLIVAN. Absolutely. 

Mrs. LUMMIS. Mr. Myrum, has the Bureau of Rec made investments in Washington State? And could it make investments in new 

storage at a later point? 

Mr. MYRUM. They have made significant investments in 

Washington State. We have major projects. And they are in the 

process of developing a project for our new storage in the Yakima 

Valley, which we certainly hope they will contribute to that cause. 

Mrs. LUMMIS. Now, for both of you, would these investments be 

impacted if the Forest Service’s Groundwater Directive went forward, as well as the Waters of the U.S. proposal? I will start with 

you, Mr. Myrum. 

Mr. MYRUM. Well, thank you. Ma’am, absolutely, they would be 

impacted. 

Let’s start with the groundwater. If you take the groundwater 

through the Forest Service and the reserved water rights, that 

water, subsurface, is already flowing toward a river. But specifically, the Yakima Basin, uses a system called Total Water Supply 

Available. It would then be taking water out of that Total Water 

Supply Available in that system for their own needs, and they 

would be very much a junior appropriator under a fully adjudicated 

53 

system. So they would interrupt that process. So, if we are doing 

new storage, then the ability to get water for new storage could be 

an issue. 

The Waters of the United States rule is really an issue related 

to the construction of new facilities. A programmatic EIS has been 

done in the Yakima, and now the individual projects within that 

are starting to be constructed. If there are new jurisdictional waters after the fact that now have to be considered through the 

NEPA process, it could turn it back several years, if not change the 

result all together. 

So that is an example of some of the uncertainty that we have 

mentioned earlier. 

Mrs. LUMMIS. Thank you. Mr. Chairman, I yield back. 

Dr. FLEMING. Mr. LaMalfa is recognized for 5 minutes. 

Mr. LAMALFA. Thank you, Mr. Chairman. I have a tip from a colleague from California, from Mr. Huffman, about having difficulty 

with the one boot. I recommend two. I move around here pretty 

good with that. 

[Laughter.] 

Mr. LAMALFA. All right. I tease my colleague from the West. 

So to Mr. Heinen here again, just following up on the issue with 

power lines and that right-of-way, et cetera, of course, this is something we are trying to accomplish in northern California, as well. 

What will this do for the reliability of the grid, do you think, with 

this rule in place? You already mentioned it will raise cost, and the 

red tape of getting it done. How does that help with grid reliability? 

Then also, what do you see it actually doing in the bottom line 

for water quality, to have to go through this extra level of regulation and permitting? Is there actually a help to water quality? 

Mr. HEINEN. In my opinion, no. There would be no difference in 

water quality from what it is now. As far as reliability, any time 

you extend the process of maintaining and repairing your distribution, your transmission lines, it takes time, adds cost. And when 

the lights go out and reliability is not what it used to be, believe 

me, nobody cares about anything else but getting them back on. 

Mr. LAMALFA. My understanding that if the rule goes through— 

which is, indeed, just a rule, we haven’t had a whole lot of say in 

the Congress about if it happens—it would require every crossing 

of some type of an interpretation of a waterway to pass a litmus 

test of whether or not it qualifies as a waterway. 

So, how do you see that contributing to a timeliness or a cost 

effectiveness of accomplishing a project? 

Mr. HEINEN. Being from southwest Louisiana, and every place 

you have there is water, that would be very disastrous for us. 

Mr. LAMALFA. Mr. Sullivan, talking about recycled water for a 

moment, again, that is something that many of my colleagues in 

agriculture do. We don’t let water out at the end of the field on our 

own created irrigation and drainage ditches when we are using 

water—or if we at least have that power to. 

EPA has indicated products could be exempted, but will they? 

Because it is also being seen that the district is jurisdictional under 

the Clean Water Act. So which is it? 

54 

Mr. SULLIVAN. That is our concern, because most all of our facilities are either adjacent or close to jurisdictional properties. And 60 

percent of our reclaimed water goes to Ag. And it has been a really 

nice agreement with the Ag people, so that they do not pump highquality groundwater, and that they use the reclaimed water. They 

have come to rely on it, because it also contains about a bag-anda-half of fertilizer, hydrogen phosphorous. 

So, we have a significant investment in our reclaimed water system, recycled water system, and a lot of that is due to some money 

from the Bureau of Reclamation. 

Mr. LAMALFA. So we are talking in California—when we are 

looking at much more need for water supply, one way or the other, 

whether it is recycling, conservation, or water storage, does this 

proposal help to foment the expedited or even the ability at all to 

build and expand these types of facilities? 

Mr. SULLIVAN. No. In our humble opinion, it makes it much more 

difficult for us to create new water supplies, because the hoops you 

are going to have to go through will be incredible. 

Mr. LAMALFA. I guess, from my own experience from talking to 

people around northern California in the farming and ranching, et 

cetera, is that this isn’t some kind of a straw dog that isn’t happening. It is already happening, where I have had ranchers comment where they simply re-leveled their property, where they are 

controlling the water that runs on to and off their water that they 

irrigate with, that one farmer had to wait 3 years while somebody 

scared them to death with the idea they were going to bring 

charges against them. 

Another one, not too far away, actually did get 6-digit fines, 

because they changed their land that had been farmed to wheat before, to grazing for a while, and to olives, I believe. And now have 

been hit with gigantic fines for using their property as they see fit, 

that they have owned and operated for generations. 

This is something that is already going on. This isn’t simply 

something that is being dreamed up, or some kind of antiadministration thing. This cuts across all political lines, and is 

something, indeed, that I think is beyond the power of an agency 

without congressional input. So this is why we have this hearing, 

and these are just a couple of the anecdotes that we will be seeing 

of an overreach that goes way beyond anybody’s intention for when 

the Clean Water Act would have been passed many years ago. 

But, Mr. Chairman, I appreciate the opportunity to have this 

panel, these questions. I will yield back. 

Dr. FLEMING. The gentleman yields back. Mr. Zinke is recognized 

for 5 minutes. 

Mr. ZINKE. Thank you, Mr. Chairman. And, gentlemen, thank 

you for being here. I know your time is precious. 

There is a saying in Montana that whiskey is for drinking and 

water is for fighting. And Montana water—we have over 170,000 

miles of rivers and streams. And we rely on our water for commodities, for recreation, for energy. And most businesses, most families, 

and the future of Montana is predicated on water. 

We have seen recent EPA rules that just don’t make sense. For 

instance, in a little town like Eureka, Montana, where they are 

asked to filter the system, and they take it out of the river, where 

55 

the discharge is now cleaner than the intake. We have seen where 

little towns like Winnett, Montana were on storm drains because 

Montana isn’t New York City. And we get our water from point 

sources, we don’t get it from the tap or spigot. And generally, on 

discharge, it does not go into a municipal system. It goes into holding ponds that is appropriate in a state that is the size of from 

Washington, DC to Chicago, plus 2 miles. 

And it seems that the one-size-fits-all approach oftentimes either 

neglects, overlooks, or is not in the best interest to rural America, 

particularly Montana. And oftentimes these rules, like this one, is 

viewed, at least from our state, as by bureaucrats that don’t know 

the difference between Billings, Bozeman, and the Bayou. And 

there is a big difference between Bozeman and Billings. And I was 

just down in the Bayou, and I like that area, too. 

But where I am leading to is that this one-size-fits-all, what did 

Montana do? Did we violate something? Because the last time I 

looked, when the water leaves the great state of Montana from 

North Dakota or Idaho, it is pretty clean. And my concern is that 

every cow pond is going to be regulated like the Hudson, and the 

view from the Potomac is a lot different than the view from 

Yellowstone. 

So, I guess, for Mr. Ogsbury, that you are the Governor. Is there 

something that Montana did wrong that was justified, changing 

our groundwater, the way we handle our groundwater? Because I 

think everyone in this room appreciates clean water. 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

Congressman Zinke, members of the committee, Governors have 

certainly expressed concerns about a one-size-fits-all approach to 

Federal regulatory activity, as well. And that, I think, is what informs, or what largely informs, their position, that they should be 

consulted early in the process, so they could better sensitize the 

regulatory agencies to the hydrological differences, the differences 

in legal framework, and the different citizen needs that the 

Governors might have a little more command of. 

Mr. ZINKE. And a follow-up question. It seems there is confusion 

about what this set of rules really mean. There is confusion in this 

body, there is confusion within different sides. There is confusion 

in the definitions. And it seems to me there is a breakdown. Because in Montana there is a confusion between the cattlemen, there 

is confusion between the Ag guys. There is confusion with the recreational guys, and there is confusion—again, this body. 

So, was there a breakdown in lack of coordination at the local, 

the state, the Federal level? Do we need to send it back to where 

we can start coordinating it again? Because it seems to me there 

is a broad breadth of definitions that is not uniform. Is there—— 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

Congressman Zinke, members of the subcommittee, we do believe 

that consultation with states was inadequate, that states really 

should be treated more as authentic and equal partners in the development of a proposal that so directly impacts state authority. 

I think Governors recognize that they are more than stakeholders, that they have regulatory authorities, constitutional responsibilities, and delegated responsibilities that bear special 

consideration. 

56 

Mr. ZINKE. Thank you, Mr. Chairman. I yield the remaining 

time. Thank you, sir. 

Dr. FLEMING. The gentleman yields back. Mr. Tipton is 

recognized for 5 minutes. 

Mr. TIPTON. Thank you, Mr. Chairman. And just to clarify for my 

colleague from Montana, I think the origination of ‘‘whiskey is for 

drinking and water is for fighting’’ started in Colorado. 

[Laughter.] 

Mr. TIPTON. But, as Westerners, we do stand on common ground, 

that state law ought to be respected. Water is a private property 

right. Our priority-based systems ought to be respected by the 

Federal Government, as well. 

And, Chairman Fleming, I thank you for holding this hearing 

today and shining light on a very important topic. 

In recent years, the Federal Government has repeatedly attempted to circumvent long-established state water law in order to 

hijack water rights. These efforts constitute a gross Federal overreach in violation of private property rights. On multiple fronts, the 

U.S. Forest Service and other Federal land management agencies 

are currently attempting to ignore state law and take private water 

rights, despite objections from elected officials, business owners, 

and private property advocates. 

For example, the Federal Forest Service attempted to implement 

a process that requires the transfer of privately held water rights 

to the Federal Government as a permit condition on national forest 

lands, while offering no compensation for the transfer of these privately held water rights, despite the fact that many stakeholders 

have invested millions of their own capital in developing those 

rights. 

Although the Forest Service has announced its intention not to 

require transfer of ownership of water rights to ski areas special 

use permits outside the ski area permit context, the agency is keeping the policy on the books that requires permittees to transfer 

their water rights to the U.S., and apply for new water rights in 

the name of the U.S. 

These same nefarious tactics have been used in attempts to hijack private-held water rights associated with agricultural production in the heart of rural America, where farmers, ranchers rely on 

these rights to secure loans, as well as irrigate crops and livestock. 

This Federal water grab has brought implications that have begun 

to extend beyond recreation and farming and ranching communities, and are now threatening municipalities and businesses, as 

well. 

Furthermore, the Forest Service recently proposed the groundwater directive which would have expanded the agency’s reach over 

the groundwater, and established new bureaucratic hurdles to 

interfere with private water users’ ability to access their water. 

Make no mistake. The Forest Service seeks to further federalize 

water resources, erode state authority, and pave the way for unilateral mandates on state water resources, while overriding decades 

of longstanding policy that the states and the states alone hold 

jurisdiction over their own groundwater. 

Despite statements by Chief Tidwell that the agency is, for the 

time being, backing off its controversial groundwater directive, 

57 

Chief Tidwell offered no guarantees that the directive, or something similar, will not be back in the future. In fact, Chief Tidwell 

noted that the agency still intends to move forward with it in some 

form, after gathering more input. 

The need for permanent legislative solutions to be able to protect 

private water rights from Federal takings and interference cannot 

be overstated. For these reasons, I am reintroducing the Water 

Rights Protection Act, which passed through the House of 

Representatives with bipartisan support, and out of this committee 

with bipartisan support in the last Congress. 

The Water Rights Protection Act would protect communities, 

businesses, recreation opportunities, farmers, ranchers, as well as 

other individuals that rely on privately held water rights for their 

livelihood from Federal takings. It would do so by prohibiting the 

Federal agencies from extorting water rights through the use of 

permits and leases and other land management arrangements for 

which it would otherwise have to pay just compensation under the 

Fifth Amendment of the Constitution. 

The bill also prohibits the implementation of the groundwater resource management directive recently promulgated by the Forest 

Service, as well as any similar directives or regulations they may 

consider in the future. 

The Water Rights Protection Act has already received the endorsements of the National Ski Areas Association, the American 

Farm Bureau, the National Cattlemen’s Beef Association, the 

Family Farm Alliance, the Public Lands Council, and Club 20. And 

more groups continue to add to that support, as well. 

Mr. Ogsbury, is water a private property right in the West? 

Mr. OGSBURY. States, as I understand it, control the allocation 

of water rights. I am not the subject matter expert, and I would 

ask the committee’s indulgence and permission to provide a more 

thoughtful answer for the record. 

Mr. TIPTON. Well, I would certainly appreciate that. Since 1876, 

when Colorado became a state, the Federal Government has respected Colorado State law, Western State law, private property 

rights, our priority-based systems. But now we are continuing 

this—I have listened to the answers that you, on the panel, have 

given. Is it your sense, sir, that we are actually seeing the Federal 

Government trying to find a solution for a problem that they have 

apparently not strictly identified? 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

Congressman Tipton, we certainly think that there is ambiguity in 

all of the proposals that have been the subject of today’s discussion, 

and we actually would want to work more closely with those 

Federal agencies to better inform their policy proposals. 

Mr. TIPTON. You know, the National Governors Association—I 

think the comment was—and I—does this concern you? When we 

are seeing the Federal Government now—under state law, private 

property rights, state water law, now trying to define states as potentially affected parties, does this seem to you to be a complete 

disregard of state law that has been respected? 

Mr. OGSBURY. Chairman Fleming, Ranking Member Huffman, 

Congressman Tipton, we certainly feel that we are more than potentially affected parties. 

58 

Mr. TIPTON. Thank you, sir. And I yield back. Thank you for your 

indulgence, Mr. Chairman. 

Dr. FLEMING. Yes, gentleman yields back. I want to thank the 

panel for your valuable testimony and answering questions. We 

could easily go another couple of hours, but we are not going to do 

that to you. 

[Laughter.] 

Dr. FLEMING. Because we have another panel. But I want to 

thank you. And we may provide more questions in writing, and we 

appreciate a written response, as well. 

And, once again, thank you. And I thank my friend from 

Louisiana, Mr. Heinen. 

You are excused. And our second panel, our panelist, our one 

panelist, should step forward. 

[Pause.] 

Dr. FLEMING. We will now hear from our second panel witness. 

We are joined by Ms. Leslie Weldon, Deputy Chief of the U.S. 

Forest Service, based in Washington, DC. 

I would again like to express my disappointment and frustration 

that the Bureau of Reclamation was not willing to provide our committee with a witness for proper questioning. 

Deputy Chief Weldon, I would like to remind you that your complete written testimony will appear in the hearing record. And I 

ask that you keep your oral statement to 5 minutes. 

As a reminder, when you speak, our clerk will start the timer: 

the green for 5 minutes—excuse me, 4 minutes, and then yellow for 

a minute, and then red concludes your remarks. 

And certainly, everything will be submitted in the record. So if 

you don’t get everything in, it will certainly be on the record. 

So I now recognize Deputy Chief Weldon to testify for 5 minutes. 

STATEMENT OF LESLIE WELDON, DEPUTY CHIEF, U.S. FOREST 

SERVICE, WASHINGTON, DC 

Ms. WELDON. Thank you, Chairman Fleming, Ranking Member 

Huffman, and members of the subcommittee. And thanks for the 

opportunity to provide perspective on the role of the U.S. Department of Agriculture in the stewardship of water resources on the 

national forests and national forest system lands. 

I was asked to address concerns related to proposed water 

clauses for ski area permits, and the groundwater directive. Neither of these proposals are directly connected to the proposed rule 

under the Clean Water Act by the U.S. Army of Corps of Engineers 

and the EPA. 

Let me begin by emphasizing the sole interest of the Forest 

Service regarding the stewardship of water resources is to help ensure that abundant, clean water is available now and into the 

future. Whether it is to ensure reliable drinking water for communities, abundant flows for agriculture, to sustain domestic animals, 

as well as wildlife and fish population, or to make snow for skiing 

and other world class recreation, everything is done with an eye for 

the broad public interest, and in recognition of the critical role that 

national forests play as a vital source of water. 

In June of 2014, a notice of proposed ski area water clauses for 

the agency’s Special Uses Handbook was published in the Federal 

59 

Register. These clauses are intended to ensure the long-term 

availability of water for ski area operations without requiring 

Federal ownership of water rights associated with ski areas operating on national forest system lands by making sufficiency of 

water a requirement of the permit holder. We believe that the final 

clauses will ensure that ski areas have sufficient water to continue 

to be able to provide recreation opportunities to the public, and economic support to the communities that depend on their revenue, 

while addressing the concern of not inhibiting market forces associated with water resources. 

Since publishing our proposed groundwater directive in May of 

2014, and after 150 days of comments, several hearings, letters, 

and many conversations, we have heard loudly and clearly the concerns of both the content and our approach to the directive. Recognizing the importance of the need for full transparency, and for 

close coordination with other jurisdictions and stakeholders, we are 

not moving forward with a proposal at this time. 

Rather, we have shifted our efforts to actively engaging in a productive and collaborative dialog with states, tribes, and other 

stakeholders to develop a new proposal that will better protect 

against groundwater contamination, improve environmental analysis, reduce uncertainty and costs associated with potential litigation, and increase efficient use and conservation of groundwater. 

This will take time. 

We recognize that there is still much work to be done, and are 

committed to a transparent, collaborative, and cooperative 

approach to meet our shared stewardship responsibilities for 

groundwater-dependent resources on national forest system lands. 

Last December, Chief Tidwell issued a letter to regional foresters, directing them to engage with their State Governors to address their concerns. The agency is also working with the Western 

States Water Council to develop better policy. In fact, we are meeting with the Council later this week. These discussions have been 

positive and fruitful. We look forward to continuing this work, and 

will not move a new proposal until we have successfully engaged 

with states, tribes, and other interests, including working closely 

with Congress. 

On behalf of the Forest Service, I emphasize that nothing in the 

implementation of our stewardship responsibilities of national 

forest and grasslands will infringe on state authority for water allocation and state and tribal authority for water quality protection. 

As a direct result of the public will and congressional intent, the 

national forest system today provides sources of clean drinking 

water for people in more than 3,400 communities in 42 states and 

the Commonwealth of Puerto Rico. It is our goal that, in partnership with the states, tribes, and all water users, these resources remain abundant and clean for present and future generations. We 

will work with you on the direction that accomplishes just that. 

And I thank you for the opportunity to be here today, and 

welcome any questions. Thank you. 

[The prepared statement of Ms. Weldon follows:] 

60 

PREPARED STATEMENT OF LESLIE WELDON, DEPUTY CHIEF, NATIONAL FOREST

SYSTEM, U.S. DEPARTMENT OF AGRICULTURE FOREST SYSTEM

Chairman Fleming, Ranking Member Huffman, and members of the subcommittee, thank you for the opportunity to provide perspective on the role of the 

U.S. Department of Agriculture (USDA) in the stewardship of water resources on 

National Forest System (NFS) lands. Specifically, USDA has been asked to respond 

to concerns related to proposed ski area water clauses and a proposed groundwater 

directive, neither of which has any relationship to the proposed rule under the 

Clean Water Act by the U.S. Army Corps of Engineers and U.S. Environmental 

Protection Agency. 

SKI AREA WATER CLAUSES

On June 23, 2014, notice of proposed ski area water clauses for the agency’s 

Special Uses Handbook was published in the Federal Register. These clauses are 

intended to ensure the long-term availability of water for ski area operations without requiring Federal ownership of the water rights associated with ski areas operating on NFS lands. The Forest Service received nearly 13,000 comments in 

response to the proposal, of which 35 were unique. We are evaluating the comments 

and considering proposed revisions to the clauses. We believe the final clauses will 

provide for sufficiency of water, while addressing the concern of not inhibiting market forces associated with water resources. The intent will be to make sufficiency 

of water a requirement of the permit holder. We believe that the final clauses will 

ensure that ski areas have sufficient water to continue to be able to provide recreation opportunities to the public and economic support to the communities that depend on their revenue. 

PROPOSED GROUNDWATER DIRECTIVE

Since publishing our proposed groundwater directive for notice and comment on 

May 6, 2014, we have heard from a number of states and other parties concerns 

about the intent of and language in the proposal. By the end of the comment period, 

we had received 260 unique comment submittals from elected officials, states, tribes, 

organizations, and individuals from across the country. This committee, as well as 

several states, asked us to not proceed with the proposed draft and to consult with 

them before moving forward. We have listened and are actively having those conversations now. We will continue to work cooperatively with this committee and the 

states and will not move forward until we can address the concerns raised. In fact, 

in recent hearings the Chief of the Forest Service stated that the proposed directive 

has been put on hold. We will publish a new draft for a new round of public comment before any direction is finalized. It is the intent of the Forest Service that 

nothing in the implementation of our stewardship responsibilities for National 

Forests and Grasslands infringes on state authority for water allocation and state 

and tribal authority for water quality protection. 

The proposed directive on groundwater is intended to help the Agency establish 

a more consistent approach to evaluating and monitoring the effects on groundwater 

from actions on National Forest System (NFS) lands. 

The proposed directive did not specifically authorize or prohibit any uses and did 

not represent an expansion of authority. The Forest Service recognized and specifically acknowledged in the proposed directives, the role of states in the allocation of 

water use and protection of water quality. The proposed directive would not and was 

not intended to infringe in any way on state authority, nor would it impose requirements on private landowners or change the long-standing relationship between the 

Forest Service and states and tribes on water. 

Rather, it proposed a framework that would allow the Forest Service to clarify existing policy and better meet existing requirements in a more consistent way across 

NFS lands. Specifically, it was intended to: 

• Improve our understanding of groundwater systems that influence and are influenced by surface uses on NFS land by creating a more consistent approach 

for gathering information; 

• Support management and authorization of various multiple uses by creating 

a more consistent approach to evaluating, disclosing and monitoring the potential effects on groundwater resources of proposed activities on and uses of 

NFS lands in a way that supports informed and legally defensible decisions; 

• Provide transparent and consistent direction for evaluating proposed Forest 

Service activities affecting groundwater resources on NFS lands and for quantifying the nature and extent of large groundwater withdrawals; and 

61 

1http://www.fs.fed.us/publications/policy-analysis/water.pdf. 

2www.fs.fed.us/pnw/pubs/pnw_gtr812.pdf. 

• Emphasize cooperation with state, tribal and local agencies, recognizing all 

existing roles and responsibilities. 

In many instances, the Forest Service has a legal obligation to analyze and disclose the impacts that activities it authorizes, funds, or undertakes directly may 

have on natural resources, including groundwater. In a number of examples around 

the country, multiple use decisions made by the Agency have been challenged in 

court, with plaintiffs arguing that such impacts were not fully analyzed or disclosed. 

This responsibility stems from direction in the Forest Service’s Organic Act of 1897 

(directing the Forest Service to manage NFS lands to secure favorable conditions 

of water flow); the Weeks Act of 1911 (for navigable stream protection); the 

Bankhead-Jones Act of 1935 (to mitigate floods, conserve surface and subsurface 

moisture, and protect watersheds); and the Multiple-Use Sustained-Yield Act of 

1960, the National Forest Management Act of 1976, and the Federal Land Policy 

and Management Act of 1976 (all providing direction to the Forest Service regarding 

water, watersheds, and the management of natural resources including water). 

Water on NFS lands is important for many reasons, including resource stewardship, domestic use, and public recreation. Today, water from national forests and 

grasslands contributes to the economic and ecological vitality of rural and urban 

communities across the Nation, and those lands supply more than 60 million 

Americans with clean drinking water.1

This role is increasingly important as drought conditions worsen in many parts 

of the country. On Wednesday, April 1, 2015, Governor Jerry Brown issued an executive order announcing a mandatory 25 percent reduction in water consumption in 

cities and towns across the state, following his previous declarations in January and 

April of 2014 of a state of emergency throughout California due to severe and ongoing drought conditions. Other parts of the country also face drought conditions: for 

example, 13 counties in Oregon and 11 counties in Washington State have received 

drought emergency declarations. Persistence and intensification of drought conditions is anticipated across the West. 

NFS lands provide 18 percent of the Nation’s freshwater and over half the freshwater in the West.2 Groundwater plays a critical role in providing that freshwater, 

serving as a reservoir supplying cold, clean water to springs, streams, and wetlands, 

as well as water for human uses. Activities on national forests and grasslands can 

impact surface water, drinking water source areas, and groundwater reserves, including major aquifers (U.S. Geological Survey Principal Aquifers). 

Through this proposed directive, the Forest Service would be better positioned to 

respond to changing conditions, such as drought, climate change, land use changes 

and needs for additional water supplies, in an informed manner, while sustaining 

the health and productivity of NFS lands and meeting new societal demands for resources in a responsible way. Our goal is to improve the quality and consistency of 

our approach to understanding groundwater resources on NFS lands and to better 

incorporate consideration of those resources to inform agency decisionmaking. Establishing a consistent framework for evaluating groundwater resources will also 

help to ensure that the Forest Service’s decisions are well informed and can withstand legal challenge. 

By improving the agency’s ability to understand groundwater resources and have 

a more consistent, informed and legally defensible approach to evaluate, make decisions about, and monitor activities on NFS lands that could impact groundwater resources, the proposed directive would make the agency a better and more consistent 

partner to states, tribes, and project proponents, as well as to the downstream communities that depend on NFS lands for their drinking water. We look forward to 

continuing the productive conversations we are currently having with the committee, states, and other partners, as well as to receiving additional feedback 

through another formal comment period. 

This concludes my testimony and I would be happy to answer any questions. 

62 

QUESTIONS SUBMITTED FOR THE RECORD BY THE HON. DAN NEWHOUSE TO

DEPUTY CHIEF LESLIE WELDON, U.S. FOREST SERVICE

Ms. Weldon did not submit responses to the Committee by the appropriate 

deadline for inclusion in the printed record. 

Question 1. Recently, I have heard a lot of complaints about the Forest Service 

and the manner in which the Service has been interacting with communities in central Washington. I am very concerned with the lack of communication and the inability of the Service to hold forums and take comments on rulemakings and 

proposals without offending local constituencies. From the proposal to introduce 

grizzlies in the North Cascades and the proposed ‘‘groundwater directive,’’ to the 

Okanogan-Wenatchee National Forest Travel Management Plan and NW Forest 

Management Plan—I have heard numerous complaints that people feel their voices 

are not being heard and that the Service is not taking local concerns into consideration. One of my constituents from Kennewick recently sent a letter to the Forest 

Service and I would like to read this excerpt that really sums up these concerns: 

‘‘What happened to the Forest Service my Aunt, Father-in-Law, and I 

worked for? You know, the one where the Forest Service was part of the community and took part in the life of the community. It seems like too many 

of your folks don’t stay anywhere long enough to get any kind of feel for 

what works on any given forest. It’s time the FS got back to basics, and 

started acting like who you are, stewards, not owners. Where is the economic 

interest of so many communities being considered? It really isn’t. Rural communities that rely on the forests for resources and commodity production are 

suffering under the current regime.’’ 

I was pleased to hear that the Service corrected course and will now be holding 

additional listening sessions on the local forest plan revision. In that vein, can you 

tell me what measures are currently being undertaken to improve the way your 

agency interacts with local communities? Are there any efforts underway to improve 

your coordination with local stakeholders and to better incorporate their needs and 

concerns? 

Question 2. One of our witnesses stated that the language of the Groundwater 

Directive ‘‘misleadingly suggests that the U.S. Forest Service has equal authority 

with the state over groundwater management’’. Despite the fact that the Directive 

has been withdrawn, does the Forest Service believe that states have primacy over 

groundwater management? 

Question 3. As it relates to groundwater litigation, most of the examples you provided the committee were mining examples where BLM has responsibility for analyzing the activity. Does BLM analyze sub-surface impacts? Are they not doing their 

job? 

Question 4. Deputy Chief Weldon, you mentioned that you intend to coordinate 

with states and others. After you talk with the states and other Federal agencies, 

if the majority of the states are still not supportive of this Directive or a future 

Forest Service groundwater policy, do you still intend to move forward with the 

Groundwater Directive or a similarly focused policy? 

Dr. FLEMING. Thank you, Ms. Weldon. I now recognize myself for 

5 minutes for questions. 

One of our witnesses stated that the language of the Groundwater Directive ‘‘misleadingly suggests that the U.S. Forest Service 

has equal authority with the state over groundwater management.’’ 

Does the Forest Service believe that the states have primacy over 

groundwater management? 

Ms. WELDON. The work that we are doing now to respond to concerns is one that really has us digging in to understanding the authorities of the states. And we agree that the states do have that 

lead role in making determination on water quality and water 

availability. So we feel like we need to coordinate very closely with 

them on our goal of being able to ensure that we are assessing corVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
63 

rectly the resource impacts for any activities that are proposed on 

national forest land that may affect groundwater. 

Dr. FLEMING. Would ‘‘lead role’’ be the same as primacy? 

Ms. WELDON. I am not a lawyer, so I wouldn’t want to—but we 

definitely acknowledge that the states carry that lead role in making those determinations on availability. 

Dr. FLEMING. As it relates to groundwater litigation, most of the 

examples you provided the committee were mining examples, 

where BLM has responsibility for analyzing the activity. Does BLM 

analyze subsurface impacts? 

Ms. WELDON. BLM is predominantly responsible for analyzing 

subsurface impacts for minerals and for water use. 

Dr. FLEMING. OK. Are they not doing their job in this? 

Ms. WELDON. We work very closely and cooperatively with BLM. 

But this directive is really about our ability to make sure we are 

providing consistent, clear direction across our whole system. So, 

our goal with the directive was to put that in place, which I think 

will enable us to work more strongly with the BLM, and with the 

states. 

Dr. FLEMING. You indicated that you do not intend to go forward 

on a revised groundwater directive. Does that mean you are not 

coming up with a groundwater directive in the next year-and-ahalf? 

Ms. WELDON. We haven’t set a time frame. But at this point we 

have stopped with the current proposal, and we won’t move forward with another one until we have done the job of that close collaboration and co-development with the states, so that, when we 

get to that point—and I don’t have a date for it—of issuing a new 

proposal for that internal guidance, it will be one that comes with 

that strong support, and we will be sure to coordinate with 

Congress as we get to that point. 

Dr. FLEMING. What was the reason for standing down on moving 

forward with the directive? What was the main purpose of that, or 

the reason why you chose not to go forward? 

Ms. WELDON. What we found in the response to our comments, 

and from the concerns expressed by the states, by tribes, and others, that we needed to do a much stronger job of ensuring that our 

intent with this directive for guidance was one that wasn’t seen as 

compromising our relationships or ability for the states to do their 

jobs. 

So, we will have a stronger directive and proposal eventually, 

based on us pausing, having this level of coordination, that we can 

take this to a better place. 

Dr. FLEMING. You said you intended to coordinate with states 

and others after you talk with the states and other Federal agencies. If a majority of states are still not supportive, do you still intend to move forward with the policy? 

I hear again you are saying, ‘‘Well, the states should lead,’’ 

which, to me, to my ears, doesn’t sound like primacy, necessarily. 

So there may be a distinction without a difference, maybe not. And 

so you are saying we, the Federal Government, should work cooperatively with the state governments. But what if you come to an 

impasse, and they are not on board with what you want to do? 

What happens then? 

64 

Ms. WELDON. Well, we hope that we can come to as much clarity 

as possible. And that may mean that different states will have different requirements for implementing, or eventually moving 

forward, with a rule. We want to leave the space for those determinations to be made. But I can’t predict, ultimately, how we 

would resolve those, until we get further into the process. 

Dr. FLEMING. OK. I yield to the Ranking Member, Mr. Huffman. 

Mr. HUFFMAN. Thank you, Mr. Chairman. I just want to comment about this empty chair theater regarding the Bureau of 

Reclamation that has sort of been playing out as part of the 

hearing. 

It is true that the Bureau of Reclamation, which has no authority 

or jurisdiction involving the Clean Water Act, which was the stated 

purpose of this hearing, is not here. Neither is the Department of 

Defense, the Department of Homeland Security, NASA, or the 

Veterans Administration. They are not here, either. And all of 

those agencies have about as much relevance to the subject of the 

Clean Water Act as any of the others. The Bureau never agreed to 

be here. The Bureau is not required to be here. And the absence 

of the Bureau, frankly, in no way detracts from whatever legitimacy this hearing might have, which is not much. 

I did want to speak, though, to the comments from my colleague, 

Mr. McClintock, in apparently correcting me about state preemption in the Valadao bill. Fortunately, he and others don’t have to 

take my word for it—the state of California itself took a position 

that the bill would have been preemptive, including the state 

Attorney General, whose job it is to defend California water law. 

So I am happy to correct the correction on that point. 

And Ms. Weldon, turning to you, thank you for doing what the 

record clearly shows you did. You listened, you had a deliberative, 

inclusive process that had outreach, and you took comments, concerns, and you are now moving forward in a very collaborative, 

thoughtful way. I don’t think you are going to get a lot of thankyou notes from the Majority in this committee for being inclusive 

and thoughtful. Around here, no good deed goes unpunished. But 

I think it is obvious that the Forest Service is listening, and trying 

to get this right. And there is really nothing more that we can ask 

of you than that. 

Now, if we were to have an oversight hearing involving the 

Forest Service and water on a subject that is of relevance, that is 

ripe and important right now, it might involve the fact that, in 

California, where we are experiencing a critical drought, heading 

into the fourth year of a drought, the Forest Service has allowed 

Nestle Waters of North America to continue using a pipeline to 

transport spring water out of the San Bernardino National Forest 

on a permit that expired almost three decades ago. It has not conducted any scientific assessment of Nestle’s use of the water from 

those springs, how it could be impacting wildlife and groundwater. 

So, we might very well, if we were interested in problems involving the Forest Service and water management that are relevant, be 

asking whether the Forest Service is doing enough to protect 

California’s scarce water resources from a company like Nestle, operating without a permit right now in this critical drought 

environment. 

65 

I am going to give you an opportunity to speak to that, if you 

like. It is certainly a subject I would like to take up with you separately. But while we had you here, I thought I would at least raise 

the question. 

Ms. WELDON. And thank you for your question. We would be 

happy to meet with you to go into detail about our approach forward with the special use permit for Nestle, for their accessing 

water. 

I will share that the California region in the San Bernardino 

National Forest have seen the need now, and are actively pursuing 

their next steps, as far as evaluating this permit, looking to what 

is going to be necessary to evaluate the current work that is happening with accessing water. And we will be happy to share with 

you the next steps out of that, as it relates to resolving this permit 

that has gone so long without being renewed. 

Mr. HUFFMAN. All right. I appreciate that. Thanks for your 

testimony. I yield back. 

Dr. FLEMING. Before I recognize the next gentleman, I want to 

clarify for our committee, this committee does have jurisdiction 

over the Department of Reclamation. And issues are relevant to 

them, and we did ask them. We don’t have jurisdiction over DoD. 

They don’t have relevance to this, and we didn’t ask them to come. 

So I want to be sure everybody understands that. 

With that, I will recognize Dr. Gosar. 

Dr. GOSAR. Thank you, Mr. Chairman. And thank you, Ms. 

Weldon, for showing up. We certainly appreciate it. And thanks for 

the revocation of the groundwater rule. We appreciate that aspect. 

I want to touch on another aspect, because I want to talk about 

the Federal Government moving again in ski area jurisdictional aspects. So I have a couple statements here. 

The latest Forest Service ski area clauses are the fourth different 

proposal in 10 years on this matter. You all continue to come out 

with significantly flawed initiatives that receive considerable backlash from local stakeholders and Members of Congress in both parties. Then you revise these proposals to see what you can get away 

with. But I am convinced you just don’t get it. 

The Western Governors’ Association Executive Director testified 

today and expressed serious concern about the latest ski area 

clauses, stating—and I quote—‘‘Certain terms within the proposed 

initiative are undefined, creating ambiguity for states and permittees. For instance, the clause requires water rights holders to obtain advance written approval from the U.S. Forest Service before 

water rights can be divided, transferred, or modified if such action 

will adversely affect the availability of those rights to support operation of the ski area.’’ End of quote. 

Advance written approval from the Forest Service for water 

rights that the ski areas have invested hundreds of millions of dollars on to support their operations. Right? That is—in many cases, 

they have invested all this money for this infrastructure aspect, 

right? Sounds like more bureaucracy and red tape, to me. 

Who are the perceived bad actors in this issue? 

Ms. WELDON. I thank you for your question. And what I believe 

our intent is, or what our intent is, indeed, is to ensure that, as 

we are looking at continuing to provide this recreational opporVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
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tunity that is based on national forest land, that, as we look at 

transferring permits, or any other changes, that there is water 

available. 

So, we are working very closely right now, through the clauses 

that you have—— 

Dr. GOSAR. Yes, but you don’t—you, as a Federal agency, don’t 

have jurisdiction over that water. That is states rights. Is it not? 

Ms. WELDON. We agree, absolutely, that—— 

Dr. GOSAR. That is my whole point here, is the overreach of that 

aspect. I mean in rural Arizona, particularly, like, in Flagstaff, I 

mean, when you are considering groundwater, which also serves 

Flagstaff, but also the community up on the ski area up there, you 

are talking about 80 percent of that groundwater being utilized in 

this instance. So there is a reason why people—like, Flagstaff in 

Arizona, which rely on a lot of groundwater—are up in arms about 

this. Because you don’t need your hands on it. 

Now, can you name me one instance a ski area that sold off its 

water rights? 

Ms. WELDON. No, I cannot. 

Dr. GOSAR. It has never happened. In fact, even your boss, Forest 

Service Tom Tidwell, said as much in his testimony before this 

committee. It seems to me that the latest ski area clause is really 

just another proposed water grab of a different problem. Do you 

agree? 

Ms. WELDON. I do not agree. Our goal is to ensure that, if we 

are going to provide—— 

Dr. GOSAR. Once again, let’s go back—— 

Ms. WELDON [continuing]. National forest land, there needs to be 

water—— 

Dr. GOSAR. I don’t want to interrupt you, but who has primacy 

on that subsurface water? 

Ms. WELDON. That is the state. 

Dr. GOSAR. So what are you messing with, in this aspect? I 

mean, from that standpoint, that is part of the problem here, is the 

states have done a pretty darn good job. 

I mean, in Arizona we have this mantra, ‘‘whiskey is for drinking, water is for fighting over.’’ And it is true, because we should 

have probably served whiskey up here, because we are going to be 

in a hurting aspect. We are not probably going to be as bad as 

California. I don’t want to get between you and Mr. McClintock, 

though. 

Ms. WELDON. We are running out of states, too, for—— 

Dr. GOSAR. Yes, but that is my point, that in defining water law, 

the subsurface water is that of the states. And hands need to be 

off from the Federal Government. And I think, from that standpoint, let’s not go back here and create more dissatisfaction—I can’t 

even speak any more today. That is what happens when you get 

between two Californians. 

Ms. WELDON. I—— 

Dr. GOSAR. My point is it ought to come off the table. Because 

that application is about extortion. You are extorting water rights 

that are primacy of the states. And I would hope that you would 

remove that. Otherwise, be prepared for taking more barrage from 

67 

1http://www2.epa.gov/sites/production/files/2014-04/documents/fr-2014-07142.pdf. 

communities like this, Flagstaff, Arizona, other states—Colorado is 

another one. So just my words of warning. 

Ms. WELDON. OK, thank you. 

Dr. GOSAR. Like I said, whiskey is for drinking, water is for 

fighting over. 

Thanks, Ms. Weldon. 

Ms. WELDON. Yes, thanks. 

Dr. FLEMING. OK. Well, we thank you, Deputy Weldon, for your 

valuable testimony. 

Ms. WELDON. Thank you. 

Dr. FLEMING. Members of the subcommittee may have additional 

questions for you, as our witness, and we ask that you respond in 

writing. 

And, there being no further business today, without objection, 

this subcommittee stands adjourned. 

[Whereupon, at 3:53 p.m., the subcommittee was adjourned.] 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

PREPARED STATEMENT OF THE BUREAU OF RECLAMATION, U.S. DEPARTMENT OF

THE INTERIOR

The Bureau of Reclamation (Reclamation) submits the following statement in response to the subcommittee’s hearing titled ‘‘Proposed Federal Water Grabs and 

their Potential Impacts on States, Water and Power Users, and Landowners.’’ This 

statement builds on last year’s statement to this subcommittee for the June 24, 

2014 hearing titled, ‘‘New Federal Schemes to Soak Up Water Authority: Impacts 

on States, Water Users, Recreation and Jobs’’, which was focused on the same 

proposed rulemaking. 

As noted in last year’s statement, we recognize the subcommittee’s interest in assuring that Federal regulations do not adversely impact our environment and economy, and we appreciate the desire for a clear understanding of the 2014 proposed 

rule regarding the definition of ‘‘Waters of the United States’’ under the Clean 

Water Act (Act). As this subcommittee is aware, the proposed rule was issued by 

the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) 

who have jurisdiction over the Clean Water Act. Reclamation has outlined its views 

on the proposed rule below; however, Reclamation does not have jurisdictional authority in interpreting the Clean Water Act nor implementing regulations thereunder. We believe that EPA and the Corps are the appropriate entities to discuss 

the details of their proposed rule, as they did in depth in a joint hearing before the 

Senate Committee on Environment and Public Works and House Committee on 

Transportation and Infrastructure on February 4, 2015. 

On April 21, 2014, the Federal Register published the proposed rule from the EPA 

and Corps 1 that is the subject of today’s hearing. Titled the ‘‘Definition of ‘Waters 

of the United States’ Under the Clean Water Act,’’ the proposed rule was published 

in response to longstanding uncertainty about the scope of waters regulated under 

the Act. As stated in the materials accompanying the proposed rule’s release, 

Members of Congress, state and local officials, industry, agriculture, environmental 

groups, and the public have asked for nearly a decade that a rulemaking occur to 

provide clarity on the scope of Federal jurisdiction under the Act. 

Since that time, interested congressional committees including those with jurisdiction over EPA and the Corps have held several hearings and Members have 

introduced at least three pieces of legislation or amendments to other bills, specifically targeting the proposed rule. Early this year, EPA and the Corps withdrew the 

interpretive rule which aimed to clarify the existing 404(f)(1)(A) exemption under 

the Clean Water Act in compliance with specific congressional direction to withdraw 

the interpretive rule, contained in Section 112 of the FY 2015 Consolidated 

Appropriation (P.L. 113–235). 

While we continue to believe that EPA and the Corps are the appropriate entities 

to discuss the details of their proposed rule, it remains our understanding that the 

68 

proposed rule was never designed to expand the Act’s applicability beyond existing 

regulation; that it is not designed to cover groundwater; and that the rule does not 

expand the Act’s reach to cover additional irrigation ditches or alter the existing 

water transfers exclusion, which are obviously of special relevance for Reclamation. 

For the purposes of Reclamation’s water and power mission areas that are of interest to this subcommittee, Reclamation shares the interest of our stakeholders in preserving our shared ability to operate and maintain facilities and deliver water and 

power. To that end, we were pleased that EPA and the Corps have included a proposed exclusion in the rule for ditches excavated wholly in uplands and draining 

only uplands, with less than perennial flow, including those that may carry groundwater. The significance of this detail is that ditches excavated for drainage purposes 

in uplands on agricultural lands are unlikely to serve their intended function unless 

they carry flow at least intermittently, so it is important that ditches with intermittent flow be eligible for the proposed exclusion. 

We are encouraged that the EPA and Corps worked with state and tribal partners 

to assure these voices are effectively represented during this rulemaking process. 

We appreciate EPA and the Corps’ efforts to improve clarity and preserve existing 

Clean Water Act exemptions and exclusions for agriculture. For example, we appreciate that the rule does not change, in any way, existing Clean Water Act exemptions from permitting under Section 404 for discharges of dredged and/or fill 

material in waters of the U.S. associated with normal farming, silviculture, and 

ranching activities, such as upland soil and water conservation practices; construction and maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches; and construction or maintenance of farm, forest, and 

temporary mining roads, where constructed and maintained in accordance with best 

management practices. We also appreciate that the rule does not change, in any 

way, existing Clean Water Act exemptions from permitting for agricultural 

stormwater discharges and return flows from irrigated agriculture. 

The EPA and the Corps extended the public comment period on the proposed rule 

twice until November 14, 2014 in order to provide a full and effective opportunity 

for public comment. The public docket shows that over one million public comments 

on the proposed rule have been gathered by the agencies, and as part of the rulemaking process the EPA and the Corps would review the comments received by all 

entities, including comments submitted by participants in today’s hearing, as they 

prepare revisions that provide additional clarity regarding the geographical scope of 

the Clean Water Act. 

The Clean Water Act is over four decades old, with several instances of litigation 

over Congress’s true intentions in passing the law, and we recognize the value in 

updated regulations to guide its implementation. Reclamation shares the interest of 

our stakeholders in preserving our shared ability to operate and maintain facilities 

and deliver water and power. As with the proposed rule, Reclamation will continue 

to participate in the interagency review process in support of our collective interests, 

as the agencies work to finalize or revise the rule consistent with congressional 

direction. 

Thank you for the opportunity to participate in today’s hearing. 

CALIFORNIA ASSOCIATION OF SANITATION AGENCIES, 

SACRAMENTO, CA, 

NOVEMBER 5, 2014. 

Water Docket, Environmental Protection Agency, Mail Code 2822T 

1200 Pennsylvania Avenue NW 

Washington, DC 20460 

Attention: Docket ID No. EPA–HQ–OW–2011–0880 

Re: Comments of the California Association of Sanitation Agencies on the Proposed 

Rule Defining ‘‘Waters of the United States’’ 

Dear Administrator McCarthy: 

The California Association of Sanitation Agencies (CASA) is pleased to provide 

comments on the proposed rule to define ‘‘Waters of the United States’’ (hereafter 

‘‘proposed rule’’) under the federal Clean Water Act (CWA). CASA represents more 

than 100 local public wastewater agencies engaged in collecting, treating and recyVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
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1See 40 C.F.R. § 35.2005(b)(12), defining ‘‘complete waste treatment system’’ as ‘‘all the treatment works necessary to meet the requirements of title III of the [CWA], involving . . . the ultimate disposal, including recycling or reuse, of the treated wastewater and residues which result 

from the treatment process.’’ (Emphasis added); see also 40 C.F.R. § 35.2005(b)(49) [definition 

of ‘‘treatment works’’ includes ‘‘storage of treated wastewater in land treatment systems before 

land application’’ among other things] 

cling wastewater to ensure protection of public health and the environment. Collectively, our agencies serve over 90 percent of the sewered population of California. 

CASA’s member agencies operate wastewater treatment and water recycling facilities that discharge into waters of the United States as well as to waters of the state, 

and as such they may be impacted by the proposed rule’s promulgation as well as 

its implementation. 

CASA appreciates that the proposed rule explicitly specifies that the agencies propose no changes to the longstanding regulations that exclude waste treatment systems designed to meet the requirements of the CWA and prior converted cropland 

from the definition of ‘‘Waters of the United States.’’ (79 FR 22217) These regulations provide an essential component of the existing regulatory framework that ensures effective agency operations. The retention of the waste treatment exemption 

is one of the highest priorities for clean water agencies. We also endorse the proposed rule’s clarification that the agencies do not intend alter the regulation of 

groundwater at the federal level and, in fact, the proposed rule codifies a number 

of the waters and features that the agencies have by longstanding practice generally 

considered not to be ‘‘Waters of the United States.’’ (Id. at 22218) 

CASA holds several concerns about the expansion of federal jurisdiction under the 

proposed rule and potentially adverse ramifications for wastewater agencies across 

the state and the Nation. Our primary concerns are: (1) the lack of clarity in the 

proposed rule as to what is included in the waste treatment exemption will create 

regulatory barriers to the effective implementation of recycled water projects without a commensurate benefit to the environment, thereby threatening recycled water 

projects that are vital to California water supply; and (2) expansion of jurisdictional 

waters under the proposed rule that could complicate and interfere with aspects of 

the wastewater treatment process. Specific issues and the manner in which the proposed rule could impact wastewater agencies are provided in more detail below. 

The Waste Treatment Exemption Should Specifically Include Water 

Recycling Facilities and Effluent Storage Ponds 

In order to address the historic drought conditions currently plaguing the western 

states, water and wastewater agencies must rely on a full suite of flexible options 

to provide potable and recycled water supplies for a variety of ongoing uses. Thus, 

CASA opposes any direct or indirect regulatory impacts on water recycling, water 

storage, and other mechanisms that playa part in recycled water infrastructure and 

processes as a result of the proposed rule. 

As noted above, we appreciate the explicit acknowledgement and codification of 

the waste treatment exemption in the proposed rule. However, we believe it is important that the proposed rule expressly states that the waste treatment exemption extends to recycled water facilities. California water recycling projects often 

depend upon artificially created wetlands and storage ponds to treat millions of gallons of water a day. If these features are considered waters of the U.S. and are excluded from the waste treatment exemption, they could theoretically no longer be 

used as an integral component of the waste treatment systems, forcing the closure 

of important recycled water projects critical to California’s water supply. Moreover, 

a lack of clarity on this issue may stall or halt the development of recycled water 

projects at a time when recycling is needed the most to address climate resiliency 

priorities. 

Because recycled water demand is variable with time of day and season, recycled 

water agencies maintain reservoirs or storage basins/ponds to store recycled water 

during periods of low usage in anticipation of peak demands. These features are an 

essential component of the recycled water process and integral to an agency’s ability 

to continue reliably producing and supplying recycled water in many instances. The 

proposed rule should affirm that such reservoirs along with influent and treated effluent storage ponds are within the scope of the waste treatment exemption, consistent with the regulatory definition of ‘‘complete waste treatment system’’ found 

in existing federal regulations.1 As the proposed rule and existing practice acknowledge, waste treatment systems designed to meet the requirements of the Clean 

Water Act are not waters of the U.S., and treatment systems should include any 

70 

facilities, including storage ponds and basins, related not only to traditional treatment facilities and processes, but also to the production of recycled water. 

In the alternative, recycled water facilities and features (including storage ponds, 

basins, artificially created wetlands, recycled water reservoirs and other features associated with water recycling) should be expressly exempted as part of the specifically identified features that are not considered waters of the U.S. within the 

proposed rule. In this case, recycled water facilities would be treated similar to artificial lakes, ponds, swimming pools, ornamental waters, and groundwater, which are 

specifically identified and expressly exempted. In either case, whether recycled 

water facilities are considered part of the waste treatment exemption or have their 

own specifically identified exemption, it is essential that the proposed rule not interfere with recycled water production and treatment by making those features 

jurisdictional. 

The failure to include an explicit statement in the final rule would leave open the 

question of whether these features are considered ‘‘Waters of the U.S.’’ Such a situation could lead to regulatory disincentives to produce recycled water in California 

and other western states, compounding a water scarcity situation that is already 

dire. Pending and adopted federal and state legislation to address the impacts of 

our historic drought contain a number of approaches to encourage recycled water 

projects. Transforming components of the recycled water process (including integral 

systems such as storage ponds) into jurisdictional waters would completely undercut 

efforts to address the drought and have resoundingly negative water supply ramifications across the state. We concur with the comments of Representative Grace 

Napolitano (D-CA) delivered to the House Committee on Transportation and 

Infrastructure Committee at the hearing held on June 11, 2014, as she questioned 

why in light of the severe drought in California, USEPA would not expressly include 

recycled water within the scope of the waste treatment exception. Given the drought 

and dire need to develop recycled water facilities in the arid west, clarification that 

excludes recycled water facilities from additional federal regulation is absolutely 

vital. 

Spreading Grounds and Related Features of the Wastewater Treatment 

Process Should Be Expressly Exempted Under the Final Rule 

As the proposed rule and existing practice acknowledge, waste treatment systems 

designed to meet the requirements of the Clean Water Act are not waters of the 

U.S., and CASA wants to ensure that as part of these proposed amendments spreading grounds/basins, treatment ponds/lagoons, and constructed treatment wetlands 

used as part of the wastewater process are subject to the same exemption. Since 

these facilities are clearly part of the treatment process, providing additional treatment, residence and settling prior to discharge, these facilities should be expressly 

recognized in the rule as falling under the Waste Treatment Exception. 

In addition, many CASA member agencies utilize spreading grounds or basins in 

order to facilitate groundwater replenishment; a vital part of water management 

throughout California. Others utilize artificially created effluent storage ponds as 

part of their treatment process. Many agencies maintain reservoirs or storage basins/ponds to store recycled water. These artificially created features and spreading 

grounds have not previously been defined or regulated as ‘‘Waters of the United 

States,’’ and should remain separate. For this reason, the proposed rule should expressly include treatment ponds/lagoons, spreading grounds/basins, and constructed 

treatment wetlands within the scope of the Waste Treatment Exception, along with 

effluent storage reservoirs and recycled water storage facilities discussed previously. 

The Proposed Amendments to What is Considered an ‘‘Adjacent Water’’ 

Must be Reexamined to Consider Wastewater Treatment Processes 

Many wastewater treatment processes, including man-made spreading basins, are 

located near or even ‘‘adjacent’’ to rivers and tributaries that have been (or under 

the proposed rule, would be) designated as waters of the U.S. and may be located 

in the riparian or floodplain areas of these rivers. Because the proposed rule defines 

‘‘adjacency’’ and includes the incorporation of waters within the flood plain or riparian area of a designated water of the U.S. as also being a jurisdictional water (see 

section 328.3(c)(2)–(4), FR 22263), this could lead to an interpretation that such 

spreading basins and artificial storage ponds are jurisdictional. 

Specifically, the proposed rule would revise the current category of an ‘‘adjacent 

wetland’’ to include all ‘‘adjacent waters.’’ (FR 22206) As a result, numerous treatment ponds, recycled water reservoirs, and spreading grounds/basins across 

California could become jurisdictional, creating a significant problem and interference with existing wastewater treatment processes. For example, under the proVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
71 

2 All references are to Part 328 and Part 122, however the language suggestions contained 

herein similarly apply to other regulatory sections that have the potential to impact wastewater 

entities, including Part 230 (79 FR 22268–22269), Part 232 (79 FR 22269–22270), and Part 401 

(79 FR 22273–22274). 

posed rule, the Montebello Forebay spreading grounds in southern California would 

appear to become jurisdictional. Under existing rules, regulations and case law, a 

waterbody is considered a water of the U.S. if it is a wetland adjacent to a water 

of the U.S. In contrast, under the proposed rule, all waterbodies (of many types) adjacent to a water of the U.S. could be considered themselves waters of the U.S., regardless of whether any sort of nexus or hydraulic connection has been shown and 

without any consideration of whether a berm or levee separates them. Under the 

proposed rule, a significant nexus appears to be assumed, as it states ‘‘. . . even 

in cases where a hydrologic connection may not exist, there are other important considerations . . . that result in a significant nexus between the adjacent wetlands or 

waters and the nearby ‘‘Waters of the United States’’ and (a)(1) through (a)(3) 

waters.’’ (79 FR 22244) As one seeming justification for this expanded interpretation, the proposed rule states that ‘‘many major species that prefer habitats at the 

interface of wetland and stream ecosystems remain able to utilize both habitats despite the presence of such a berm.’’ (Id. at 22245) This use of species preference and 

behavior to justify incorporation of a water with no proven hydrologic connection as 

a water of the U.S. closely resembles the previously invalidated migratory bird rule. 

As such, terrestrial species preference is not an acceptable basis for the assertion 

of jurisdiction. 

If these ‘‘adjacent’’ wastewater and recycled water facilities, including spreading 

grounds, are defined to be within the jurisdiction of the CWA, it would adversely 

impact CASA’s member agencies’ ability to augment groundwater supplies and to 

effectively provide wastewater treatment services. The plethora of additional and 

unnecessary requirements, regulations, and permitting associated with making 

these areas into jurisdictional waters, including but not limited to the procurement 

of an NPDES permit, assigning designated uses, exposure to penalties and potential 

third party liability for effluent violations, and impairment of the ability to operate 

and maintain these areas, would erect new mandates with no benefit to the surrounding ecosystems and waterbodies. Such a result represents an extreme disincentive to sustainable water supply development and a significant impairment of 

wastewater agencies’ ability to protect public health and safety through innovative 

and effective wastewater treatment. 

Within the proposed rule, there are two specific exemptions that could potentially 

address this issue. Pursuant to section 328.3(b)(5)(i) and 122.2(b)(5)(i),2 a spreading 

ground could fall under the definition of ‘‘[a]rtificially irrigated areas that would revert to upland should application of irrigation water to that area cease’’ (79 FR 

22263 and 22268) Spreading grounds utilized by wastewater treatment facilities are 

generally artificially created and might not otherwise exist aside from the application of wastewater effluent to the area. However, without being explicitly stated, it 

is not clear enough that this definition would apply to upland wastewater spreading 

grounds. Similarly, pursuant to section 328.3(b)(5)(ii) and 122.2(b)(5)(ii), wastewater 

and recycled water ponds and spreading grounds could fall under an expanded definition of ‘‘[a]rtificial lakes or ponds created by excavating and/or diking dry land and 

used exclusively for such purposes as stock water, irrigation, settling basins, or rice 

growing.’’ (79 FR 22263 and 22268) The word ‘‘such’’ seems to indicate that these 

are merely examples, not an exhaustive list, and thus spreading grounds utilized 

in conjunction with and/or as part of the overall wastewater treatment process could 

fall under this exclusion. However, without specific references within these provisions to treatment ponds and spreading grounds, CASA and its members are very 

concerned that these facilities could become jurisdictional and create significant 

problems for agencies attempting to protect public health and the environment. 

This, we would request the explicit inclusion of the terms such as ‘‘spreading 

grounds’’ and ‘‘wastewater and recycled water storage,’’ within this section. 

‘‘Tributary’’ is Defined Too Broadly and Will Likely be Construed to Include 

Certain Conveyances and Ditches 

For the first time, the proposed rule seeks to define what constitutes a ‘‘tributary’’ 

under the Clean Water Act. The proposed rule drastically expands the number of 

waters potentially subject to federal jurisdiction. Specifically, the proposed rule defines ‘‘tributary’’ as a water ‘‘physically characterized by the presence of a bed and 

banks and ordinary high water mark . . . which contributes flow, either directly or 

through another water . . .’’ to a water of the U.S. (79 FR 22201–22202) Even wetVerDate Mar 15 2010 07:52 Aug 27, 2015 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\WATER, POWER & OCEANS\04-14-15\94271.TXT DARLEN
72 

lands, lakes, and ponds without an ordinary high water mark (OHWM) or bed and 

banks would be considered tributaries if they contribute flow, either directly or 

through another water to a water of the U.S. (Id. at 22201–22202) Perhaps most 

significantly, under the proposed rule, a tributary, including wetlands, can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, 

lakes, ponds, impoundments, canals, and ditches not otherwise explicitly excluded. 

(Id. at 22202) 

This overly broad definition of tributary could potentially increase the number of 

man-made conveyances, ditches and conveyance facilities, including those utilized by 

wastewater entities, under federal jurisdiction, and the lack of certainty surrounding the rule’s definition of a tributary could lead to regulation of previously 

unregulated waters. This broad classification of ‘‘tributaries’’ would be considered 

jurisdictional regardless of perennial, intermittent or ephemeral flow. Even dry 

washes could be considered jurisdictional under the proposed rule. This is significant for a variety of reasons. 

One example of the potential impacts of defining what constitutes a ‘‘tributary’’ 

too broadly is the potential discharge from sanitary sewer systems to dry creeks/ 

sloughs/washes when no pollutants ever actually reach water. It is entirely unclear 

whether this constitutes a discharge of pollutants to a water of the U.S. Under the 

broad definition of tributary in the proposed rule, it is possible that spills to dry 

creeks, sloughs, or washes would be considered a ‘‘discharge’’ even if there is absolutely no real or potential impacts to surface waters of any kind. Similarly, there 

are circumstances where sewer spills occur in a street that drains to a roadside 

ditch or local creek bed that has no flow and is unconnected to a water of the U.S. 

The responsible party may fully remediate the spill and address all real and potential water quality impacts before the spill ever reaches a water source. It is difficult 

to understand how can this kind of circumstance could be envisioned as a discharge 

to ‘‘Waters of the United States’’ when there is no actual water in a dry creek or 

ditch nor an adverse impact to the environment. 

CASA appreciates your consideration of our comments. If you have questions or 

wish to discuss our perspective further, please contact Adam D. Link, CASA’s 

Director of Government Affairs at (916) 446–0388 or Eric Sapirstein, CASA’s federal 

representative, at (202) 466–3755. Thank you for your consideration of our 

comments. 

Sincerely, 

ADAM D. LINK, 

CASA Director of Government Affairs. 

CALIFORNIA WATER BOARDS,

STATE WATER RESOURCES CONTROL BOARD, 

SACRAMENTO, CA, 

NOVEMBER 14, 2014. 

Hon. GINA MCCARTHY, Administrator, 

Environmental Protection Agency, 

1200 Pennsylvania Avenue NW (4101M), 

Washington, DC 20460. 

Hon. JO-ELLEN DARCY, Assistant Secretary of the Army, 

Department of the Army, 

108 Army Pentagon, Room 3E446, 

Washington, DC 22310–0108. 

Re: WATERS OF THE UNITED STATES PROPOSED RULE DOCKET ID 

NO. EPA–HQ–OW–2011–0880 

Dear Administrator McCarthy and Assistant Secretary Darcy: 

Thank you for the opportunity to comment on the U.S. Environmental Protection 

Agency and U.S. Department of the Army’s (collectively the ‘‘Agencies’’) jointly 

73 

1 As published in 79 Fed. Reg. 22188–22274 (April 21, 2014)

Proposed Rule,1 which defines the scope of ‘‘Waters of the United States’’ protected 

under the federal Clean Water Act (CWA) in light of recent U.S. Supreme Court 

cases. The California State Water Resources Control Board (State Water Board), in 

conjunction with the nine California regional water quality control boards (collectively, ‘‘Water Boards’’), is designated as California’s water pollution control agency 

for the CWA. The Proposed Rule will affect all of the CWA programs that are administered by the Water Boards, including section 401 water quality certification, 

section 402 permitting, and section 303 water quality standards. Therefore, please 

accept the following general comments, as well as the attached specific comments, 

on the Proposed Rule on behalf of staff of the Water Boards. 

We strongly support the Agencies’ intent to adopt regulations to provide clarity 

to the definition of ‘‘Waters of the United States’’ in order to improve efficiency, consistency, and predictability while protecting water quality, public health, and the 

environment. Protection of water resources is of utmost importance in California. 

The availability of clean water, now and in the future, is vital to maintaining the 

health of our communities, businesses, agriculture, and natural environment, especially in the face of climate change and increased demand from a growing population. A comprehensive rulemaking represents a major improvement over the 

status quo, which is distinguished primarily by case-by-case jurisdictional determinations resulting in a patchwork of fact-specific, sometimes conflicting, judicial 

decisions. Neither the economy nor the environment is well served by the current 

regulatory uncertainty. 

We also strongly support the Agencies’ science-based approach to the rulemaking, 

particularly with respect to further defining the types of water bodies that are considered to be ‘‘Waters of the United States’’ because they significantly affect the 

chemical, physical, or biological integrity of traditional navigable waters, interstate 

waters, or the territorial seas. 

For example, the inclusion of all tributaries (including headwaters, ephemeral and 

intermittent streams, and tributary wetlands and ponds) as jurisdictional waters is 

an important step in protecting water quality in California. Both the Agencies’ peerreviewed scientific report and the Science Advisory Board’s October 17, 2014 review 

of the Agencies’ report correctly recognize the importance of all tributaries in maintaining the biological, physical, and chemical integrity of downstream waters. As 

shown in Attachment A of this letter, intermittent and ephemeral streams cover a 

significant portion of California’s surface area. As recommended by the Science 

Advisory Board in its September 30, 2014 letter to the Agencies, however, the 

Agencies should consider whether the proposed definition of ‘‘tributary’’ actually includes all ephemeral streams as intended, but also clearly distinguishes such tributaries from excluded non-tributary ditches. In addition, natural discontinuous 

channels in dry land stream systems should also be considered to be tributaries, 

even when there are one or more natural breaks in the channel. 

Similarly, we support the proposed definition of ‘‘adjacent’’ waters as applying to 

all types of waters, not just wetlands. We also support the proposed definition of 

‘‘neighboring’’ waters to include waters within ‘‘riparian’’ areas and ‘‘floodplains,’’ as 

well as waters with a hydrologic connection to jurisdictional waters, because the 

science clearly indicates that these types of waters have a significant nexus to the 

jurisdictional waters. 

These proposed new definitions of types of ‘‘Waters of the United States’’ offer increased clarity and consistency, which will result in more efficient and effective protection of headwaters, streams, their associated wetlands, and adjacent waters. This 

is important in states such as California that are characterized by a broad diversity 

of landscapes, climate, and hydrology. To the extent that the science justifies defining additional types of waters as ‘‘Waters of the United States,’’ either now or in 

the future, we would support doing so for the same reasons. For example, as suggested by the Science Advisory Board in its September 30, 2014 letter to the Agencies, the Agencies should consider whether geographically based subcategories of 

similarly situated ‘‘other waters’’ have a significant nexus to jurisdictional waters. 

To the extent that is necessary to continue to rely instead on case-by-case significant nexus determinations, however, we generally support the framework of the 

Proposed Rule for similarly situated ‘‘other waters.’’ 

As recommended by the Scientific Advisory Board in its September 30, 2014 letter 

to the Agencies, the Agencies should also consider whether non-wetland swales and 

other features that provide hydrologic connectivity to and between wetland complexes, such as vernal pools, should be excluded if they directly contribute flows, and 

74 

function as part of the tributary system to jurisdictional waters, even though they 

lack an ordinary high water mark and bed and bank. Additionally, while we generally support the exclusion of ditches, gullies, and rills from ‘‘Waters of the United 

States,’’ we recommend that these features be defined to avoid confusion. To the extent that any excluded features can contribute flow to waters of the United States, 

the Agencies should clarify that they may be considered point sources, as long as 

they are not statutorily exempt from regulation under the CWA. 

Some states, including California, have state laws that supplement the CWA’s authority to protect certain types of water bodies. Even so, we appreciate the necessity 

of relying on the authority provided by CWA section 401 to regulate discharges to 

waters of the United States, especially for discharges associated with projects licensed by the Federal Energy Regulatory Commission. A narrow definition of ‘‘Waters of the United States’’ would mean that state authority over more of these types 

of projects would be preempted by the Federal Power Act. 

In a similar vein, we rely heavily on the Agencies’ activities under the section 404 

dredge and fill program to leverage our limited staff resources in the section 401 

water quality certification program. A narrow definition of ‘‘Waters of the United 

States’’ would require additional state resources to achieve the same level of protection as is afforded under the section 404 program today. By contrast, the proposed 

definition of ‘‘Waters of the United States’’ will not increase the type and number 

of water bodies that are protected only under state law, and will also reduce the 

number of case-by-case determinations. This will facilitate the processing of CWA 

section 401 certification applications, and decrease Water Boards staffs’ time spent 

on ensuring that impacts to waters are addressed and appropriately mitigated and 

monitored. Improved alignment of federal and state jurisdictional waters will also 

likely decrease permit processing time to the benefit of applicants. 

In addition to these general comments, please find our specific comments on the 

language of the Proposed Rule in Attachment B to this letter. We appreciate the 

Agencies’ outreach to state agencies in discussing this rulemaking effort and encourage the Agencies to continue to consult with the states as the Agencies consider the 

public comments and the rulemaking moves forward. Once the rulemaking is final, 

we encourage continued early outreach and coordination, particularly when making 

jurisdictional determinations pursuant to the newly-adopted ‘‘Waters of the United 

States’’ rule. 

Thank you for considering these comments. If you have any questions regarding 

this submittal, please do not hesitate to call Bill Orme, Chief of the State Water 

Resources Control Board’s Water Quality Certification Unit, at (916) 341–5464. You 

may also email him at: Bill.Orme@waterboards.ca.gov. 

Sincerely, 

THOMAS HOWARD, 

Executive Director. 

75 

Attachment A 

STREAMS AND WATERBODIES IN CALIFORNIA 

THE NATIONAL HYDROGRAPHY DATASET

76 

Attachment B 

77 

78 

79 

80 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

— National Wildlife Federation—Prepared Statement 

— National Association of Realtors®—Prepared Statement 

Æ