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FULL COMMITTEE HEARING ON 

THE NEEDS OF SMALL BUSINESSES 

AND FAMILY FARMERS IN 

REGULATING OUR NATION’S WATERS 

HEARING 

BEFORE THE

COMMITTEE ON SMALL BUSINESS 

UNITED STATES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

HEARING HELD 

JULY 22, 2009 

Small Business Committee Document Number 111-038 

Available via the GPO Website: http://www.access.gpo.gov/congress/house 


Congress.#13
HOUSE COMMITTEE ON SMALL BUSINESS 

NYDIA M. VELA ́ ZQUEZ, New York, Chairwoman 

DENNIS MOORE, Kansas 

HEATH SHULER, North Carolina 

KATHY DAHLKEMPER, Pennsylvania 

KURT SCHRADER, Oregon 

ANN KIRKPATRICK, Arizona 

GLENN NYE, Virginia 

MICHAEL MICHAUD, Maine 

MELISSA BEAN, Illinois 

DAN LIPINSKI, Illinois 

JASON ALTMIRE, Pennsylvania 

YVETTE CLARKE, New York 

BRAD ELLSWORTH, Indiana 

JOE SESTAK, Pennsylvania 

BOBBY BRIGHT, Alabama 

PARKER GRIFFITH, Alabama 

DEBORAH HALVORSON, Illinois 

SAM GRAVES, Missouri, Ranking Member 

ROSCOE G. BARTLETT, Maryland 

W. TODD AKIN, Missouri 

STEVE KING, Iowa 

LYNN A. WESTMORELAND, Georgia 

LOUIE GOHMERT, Texas 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

BLAINE LUETKEMEYER, Missouri 

AARON SCHOCK, Illinois 

GLENN THOMPSON, Pennsylvania 

MIKE COFFMAN, Colorado 

MICHAEL DAY, Majority Staff Director 

ADAM MINEHARDT, Deputy Staff Director 

TIM SLATTERY, Chief Counsel 

KAREN HAAS, Minority Staff Director 

(II) 

STANDING SUBCOMMITTEES 

Subcommittee on Contracting and Technology 

GLENN NYE, Virginia, Chairman 

YVETTE CLARKE, New York 

BRAD ELLSWORTH, Indiana 

KURT SCHRADER, Oregon 

DEBORAH HALVORSON, Illinois 

MELISSA BEAN, Illinois 

JOE SESTAK, Pennsylvania 

PARKER GRIFFITH, Alabama 

AARON SCHOCK, Illinois, Ranking 

ROSCOE BARTLETT, Maryland 

W. TODD AKIN, Missouri 

MARY FALLIN, Oklahoma 

GLENN THOMPSON, Pennsylvania 

Subcommittee on Finance and Tax 

KURT SCHRADER, Oregon, Chairman 

DENNIS MOORE, Kansas 

ANN KIRKPATRICK, Arizona 

MELISSA BEAN, Illinois 

JOE SESTAK, Pennsylvania 

DEBORAH HALVORSON, Illinois 

GLENN NYE, Virginia 

MICHAEL MICHAUD, Maine 

VERN BUCHANAN, Florida, Ranking 

STEVE KING, Iowa 

W. TODD AKIN, Missouri 

BLAINE LUETKEMEYER, Missouri 

MIKE COFFMAN, Colorado 

Subcommittee on Investigations and Oversight 

JASON ALTMIRE, Pennsylvania, Chairman 

HEATH SHULER, North Carolina 

BRAD ELLSWORTH, Indiana 

PARKER GRIFFITH, Alabama 

MARY FALLIN, Oklahoma, Ranking 

LOUIE GOHMERT, Texas 

(III) 

Subcommittee on Regulations and Healthcare 

KATHY DAHLKEMPER, Pennsylvania, Chairwoman 

DAN LIPINSKI, Illinois 

PARKER GRIFFITH, Alabama 

MELISSA BEAN, Illinois 

JASON ALTMIRE, Pennsylvania 

JOE SESTAK, Pennsylvania 

BOBBY BRIGHT, Alabama 

LYNN WESTMORELAND, Georgia, Ranking 

STEVE KING, Iowa 

VERN BUCHANAN, Florida 

GLENN THOMPSON, Pennsylvania 

MIKE COFFMAN, Colorado 

Subcommittee on Rural Development, Entrepreneurship and Trade 

HEATH SHULER, North Carolina, Chairman 

MICHAEL MICHAUD, Maine 

BOBBY BRIGHT, Alabama 

KATHY DAHLKEMPER, Pennsylvania 

ANN KIRKPATRICK, Arizona 

YVETTE CLARKE, New York 

BLAINE LUETKEMEYER, Missouri, Ranking 

STEVE KING, Iowa 

AARON SCHOCK, Illinois 

GLENN THOMPSON, Pennsylvania 

(IV) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Vela ́zquez, Hon. Nydia M. ....................................................................................... 1 

Graves, Hon. Sam .................................................................................................... 2 

WITNESSES 

Kruse, Mr. Charlie, President, Missouri Farm Bureau, Jefferson City, MO. 

On behalf of American Farm Bureau Federation .............................................. 3 

Pebley, Mr. Trey, McAllen Construction, Inc., McAllen, TX. On behalf of 

Associated General Contractors .......................................................................... 5 

Chilton, Mr. Jim, Arivaca, AZ. On behalf of Arizona Cattle Growers Association, Public Lands Council, and National Cattlemen’s Beef Association ........ 7 

Gray, Mr. Bob, Executive Director, Northeast Dairy Farmers Cooperatives ..... 8 

Schellenberg, Mr. Lyle, President, Armadillo Underground, Salem, OR. On 

behalf of National Utility Contractors Association ........................................... 11 

APPENDIX 

Prepared Statements: 

Vela ́zquez, Hon. Nydia M. ....................................................................................... 35 

Graves, Hon. Sam .................................................................................................... 37 

Kruse, Mr. Charlie, President, Missouri Farm Bureau, Jefferson City, MO. 

On behalf of American Farm Bureau Federation .............................................. 39 

Pebley, Mr. Trey, McAllen Construction, Inc., McAllen, TX. On behalf of 

Associated General Contractors .......................................................................... 71 

Chilton, Mr. Jim, Arivaca, AZ. On behalf of Arizona Cattle Growers Association, Public Lands Council, and National Cattlemen’s Beef Association ........ 83 

Gray, Mr. Bob, Executive Director, Northeast Dairy Farmers Cooperatives ..... 91 

Schellenberg, Mr. Lyle, President, Armadillo Underground, Salem, OR. On 

behalf of National Utility Contractors Association ........................................... 93 

Statements for the Record: 

Dalhkemper, Hon. Kathy ........................................................................................ 98 

Natural Resources Defense Council ....................................................................... 100 

National Council of Farmer Cooperatives ............................................................. 106 

Nebraska Cattlemen ................................................................................................ 109 

National Rural Electric Cooperative Association .................................................. 112 

Independent Petroleum Association of America ................................................... 116 

(V) 

(1) 

FULL COMMITTEE HEARING ON 

THE NEEDS OF SMALL BUSINESSES 

AND FAMILY FARMERS IN 

REGULATING OUR NATION’S WATERS 

Wednesday, July 22, 2009 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON SMALL BUSINESS, 

Washington, DC. 

The Committee met, pursuant to call, at 1:00 p.m., in Room 2360 

Rayburn House Office Building, Hon. Nydia Vela ́zquez [chairwoman of the Committee] presiding. 

Present: Representatives Vela ́zquez, Dahlkemper, Schrader, 

Kirkpatrick, Ellsworth, Halvorson, Graves, Westmoreland, 

Gohmert, Luetkemeyer, Schock and Thompson. 

Chairwoman VELA ́ ZQUEZ. Good morning. I call this hearing of the 

House Small Business Committee to order. In our nation’s recovery 

efforts, green policies have been a top priority and with good reason. Already, investments in sectors like efficiency and renewable 

energy are creating jobs and driving growth. At the forefront of this 

growing movement are our entrepreneurs: the innovators who are 

leading the way in both conservation and economic resurgence. 

It is no surprise that entrepreneurs and family farmers are 

powering the green economy. They recognize that a clean, sustainable environment is critical to the health of both the planet and the 

business world. And it makes sense because small firms, like all 

other businesses, rely on natural resources to run their operations. 

Of those critical resources, water is one of the most important. 

Our nation’s waterways play a vital role in all acts of commerce. 

In one form or another, water is used for everything from paving 

roads to raising livestocks. In recent years, however, the process for 

regulating our waterways has become complex. Today, we will examine the current regulatory framework and look for ways to make 

sure small firms can comply. 

When first introduced, the Clean Water Act sought to restore and 

maintain the integrity of our nation’s ‘‘navigable waters.’’ Today, 

that term is increasingly hard to define. How exactly does one identify a navigable water? If a ditch drains into a stream that flows 

into a river, does the ditch then need to be regulated? 

A 2006 Supreme Court ruling sought to answer that question. 

But rather than clearing up the ambiguity, the court only compounded it further. The resulting red tape now reaches all aspects 

of the CWA, including the permitting process. 

Before starting projects that affect our waterways, entrepreneurs 

must obtain federal permits. Ninety-five percent of the time, those 

licenses are granted. Still, small firms say that the authorization 

2 

process is overly complicated and that a tangle of regulations has 

created significant backlogs. In fact, the current number of unmet 

requests falls somewhere between 15,000 and 20,000. 

On average, a business will wait anywhere from 2 to 3 years to 

secure an individual license. These kinds of delays are particularly 

challenging today, as small contractors vie to win shovel-ready 

stimulus projects, the sort that have to begin right away, not two 

or three years down the road. 

Nearly four decades ago, the Clean Water Act cemented America’s commitment to conservation. We want to continue that legacy 

today, but in order to do so, we will need to be sure small firms 

understand their options and know what is at stake. When it 

comes to the navigable waters issue, a clarification of terms could 

go a long way. So could efforts to streamline the permit process. 

Everyone wants a clean, safe water supply. That goes without 

saying. But in protecting our waterways, it is critical that entrepreneurs, particularly small businesses, not be unduly burdened. 

Hindering small firms will cripple efforts to create a greener, more 

efficient economy. 

Small businesses need common sense solutions, the kinds that 

are both environmentally sound and economically viable. I know 

that, given a voice in the process, entrepreneurs can help us find 

a middle ground. 

I would like to take this opportunity to take all the witnesses in 

advance for your testimony. And I am glad that they were able to 

make this trip to Washington to be with us today and look forward 

to hearing from them. 

With that, I will yield to Ranking Member Graves for his opening 

statement. 

Mr. GRAVES. Good afternoon. Thank you, Madam Chairman, for 

having this hearing and choosing an initiative that is so critically 

important to business and to agriculture. I appreciate it. 

As a farmer myself, I fully appreciate the land that I farm. My 

brothers and I farm about 2,800 acres of corn and soybeans. In 

order for us to achieve the greatest yields on our property, we have 

to take care of that land. 

So trust me when I say that farmers are the very best stewards 

of the land that they farm. It is absolutely in their best interest. 

However, I grow increasingly frustrated when the government dictates to me how I can use my property. As suggested, it knows better than those who live off of it. 

In the 109th and 110th Congress, legislation was introduced that 

would have been an unprecedented expansion of federal government intrusion into the lives of property and business owners 

across the country. 

The Clean Water Restoration Act would expand the scope of the 

Clean Water Act to essentially regulate anything that is wet: 

ditches, ponds, gutters, you name it. This bill would further the recent trend of more government while limiting the role of the rights 

of states, businesses, farmers, and property owners. Although legislation has yet to be introduced in the House this Congress, recent 

activity in the Senate has elevated concerns that this bill will soon 

be before us. 

3 

One look at the expansive list of entities opposed to the Clean 

Water Restoration Act and you can immediately conclude that this 

legislation would have broad negative impacts. Litigation from 

third party act in this group would dramatically increase as the 

government and stakeholders struggle to clarify the new meaning 

of the legislation. 

This Committee has extensively explored the economic consequences of an out-of-control legal system. Expanded federal jurisdiction over the waters of the United States would mean a significant increase in permit applications for people with as little as a 

puddle on their property. These costs and delays will slow down a 

host of economic activity, including agriculture, real estate development, electricity transmission, transportation infrastructure development, and various energy-related tasks, such as mining and energy exploration. 

There are so many things working against our economy right 

now. With government spending spiraling out of control, climate 

change legislation with the potential to drive energy costs through 

the roof, and a new health care bill estimated to cost over a trillion 

dollars, it is important to fully understand the economic consequences of our legislative actions. 

Again, Madam Chairman, I appreciate that you are holding this 

hearing. I want to thank all of the witnesses for being here today. 

I know some of you have come a long ways, and we do appreciate 

it very much in this Committee and look forward to hearing the 

testimony. 

Chairwoman VELA ́ ZQUEZ. The Chair recognizes Ranking Member 

Graves for the purpose of introducing our first witness. 

Mr. GRAVES. Thank you, Madam Chair. 

I would like to introduce a friend of mine, Charlie Kruse, who is 

from Dexter, Missouri. He and his wife farm down in Dexter, Missouri, which is some of the best ground you can find in the State 

of Missouri. Charlie is President of the Missouri Farm Bureau and 

is testifying on behalf of the American Farm Bureau, which is the 

nation’s largest general farm organization. 

Charlie, it is always good to see you, and I thank you for making 

the trip out here to testify before the Small Business Committee 

on such an important issue. 

Mr. KRUSE. Thank you very much. 

STATEMENT OF CHARLIE KRUSE, PRESIDENT, MISSOURI 

FARM BUREAU, ON BEHALF OF AMERICAN FARM BUREAU 

FEDERATION 

Mr. KRUSE. Madam Chairwoman and members of the Committee, thank you so much for having this hearing today and for 

giving us an opportunity to express our views on this very important issue. I am very pleased to have the opportunity to testify before this Committee with my good friend Ranking Member Sam 

Graves. We have been friends a long time. I have great respect for 

Sam. 

My name is Charlie Kruse. I am a fourth generation farmer from 

Dexter, Missouri, in the Bootheel of the State of Missouri. I serve 

as the President of the Missouri Farm Bureau, and I am very 

4 

pleased to offer this testimony on behalf of the American Farm Bureau Federation and farmers and ranchers nationwide. 

We appreciate the invitation to comment on the regulatory implications and associated costs to small business of deleting the term 

‘‘navigable’’ from the Clean Water Act. The cases I am going to tell 

you about are real. And they show that small words do indeed 

make a big difference sometimes. 

If we were to take the word ‘‘navigable’’ out of the Clean Water 

Act and let the Corps of Engineers and EPA regulate all interstate 

and intrastate waters, many more farmers and ranchers will be 

caught in regulatory quicksand that can mean years of delay and 

over a million dollars in costs. 

A study backs up what farmers and ranchers have been telling 

all of us. It takes two to four years to prepare and obtain a 404 

permit. The average cost can range from over $270,000--and that 

figure doesn’t include the cost of mitigation, design changes, and 

the cost of carrying capital--down to several thousand dollars, in either case a very large sum of money for someone trying to operate 

a small business. 

The first example is about a farmer who wanted to transition his 

pastureland to grape production and was told that he had to obtain 

a 404 permit. It took two years for the agencies to issue the permit. 

The farmer spent over $6,000 in consulting fees, over $3,000 in permit and mapping fees, and over $135,000 to mitigate 10 acres that 

were arguably not wetlands. 

The second example is about a small farmer who wanted to improve the existing drainage on 11 acres of his land. He first went 

to USDA, who told him they did not consider his land a wetland. 

He then went to the state agency that had jurisdiction over this 

issue in his state. The state agency told him the same thing. They 

did not consider his land a wetland. Therefore, he would not need 

to have a permit. 

But the Corps of Engineers did tell him that he had to have a 

permit. They told him he needed both a permit and 17.7 acres of 

mitigation. The cost of compliance, $77,000 more than the property 

was worth, and the farmer just simply couldn’t afford to comply. 

So he left his land as it was. 

The third example is about private ponds and lakes. I dare say 

that practically every, if not every, member of Congress has privately owned lakes and privately owned ponds in their state. In my 

State of Missouri, we have a large number. We have over 300,000 

ponds, privately owned ponds, in the State of Missouri. 

If the word ‘‘navigable’’ were to be taken out of the Clean Water 

Act, the federal government would then have jurisdiction over 

every privately owned pond and every privately owned lake, not 

only in the State of Missouri but in every state in the nation. That 

is just something that makes no sense to us in any way. 

Lastly, I want to highlight the regulatory treatment of prior converted cropland. Deleting the term ‘‘navigable’’ opens the door for 

the agencies to regulate the use and value of over 55 million acres 

of cropland, a value conservatively estimated to be $110 billion. 

A 1993 regulation codified longstanding policy of not treating 

prior converted cropland as a water of the United States and recognize that prior converted cropland could be used for either agriculVerDate Aug 31 2005 13:08 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\51033.TXT DARIEN
5 

tural or nonagricultural uses. Changing this important regulatory 

exemption will devastate and devalue the assets of hundreds of 

thousands of landowners currently making plans to use their property, sell development rights, or give conservation easements. 

We as farmers consider our land our 401(k). In many cases, that 

is all that a farmer has. And to dramatically reduce the value of 

this land, which if we remove the word ‘‘navigable’’ from the Clean 

Water Act is something that we think would be a very devastating 

process. So we would urge you to keep the word ‘‘navigable’’ in the 

Clean Water Act as it has been for years and years, since its inception. 

Thank you very much, Madam Chairwoman. 

[The statement of Mr. Kruse is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Thank you, Mr. Kruse. 

Our next witness is Mr. Trey Pebley. He is the Vice President 

of McAllen Construction in McAllen, Texas. His firm is a small, 

family-owned and operated business with 133 employees and annual revenues of around $18 to $20 million. 

Mr. Pebley is testifying on behalf of the Associated General Contractors, which is the largest and oldest national construction trade 

association in the United States. 

Sir, you will have five minutes to make your statement. 

Mr. PEBLEY. Thank you. 

STATEMENT OF TREY PEBLEY, McALLEN CONSTRUCTION, INC. 

ON BEHALF OF ASSOCIATED GENERAL CONTRACTORS OF 

AMERICA 

Mr. PEBLEY. Good afternoon, Chairwoman Vela ́zquez, Ranking 

Member Graves, and members of the Committee. Thank you for 

the opportunity to testify on how federal regulation of water and 

wetlands impacts my company and my community. 

My name is Trey Pebley. I am Vice President of McAllen Construction, located in McAllen, Texas. McAllen is a small familyowned and operated business that builds bridges and installs municipal utilities, such as water lines, sanitary sewers, and storm 

sewers. We have 133 employees and annual revenues of around 

$20 million. 

I am an active member of the Associated General Contractors of 

America, on whose behalf I am pleased to represent today, and 

serve in a leadership role on AGC’s Environmental Network Steering Committee. 

AGC is the largest and oldest national construction trade association in the United States, representing more than 33,000 firms. 

AGC members are engaged in the construction of private and public facilities and are a major contributor to employment, gross domestic product, and manufacturing. 

I am also an elected trustee to the McAllen Public Utilities 

Board. This is an at-large position that oversees water and wastewater infrastructure and management in my community. As an 

elected official and a public steward, water quality is very important to me. 

In my position, I am challenged to make decisions about how to 

best protect water quality and the health and welfare of our citizens. And because our resources are limited, I must also make sure 

6 

the projects we fund are done in a timely and cost-effective manner. 

That is why I am concerned about a bill called the Clean Water 

Restoration Act that would fundamentally expand the federal jurisdictional scope of the Clean Water Act and displace state and local 

jurisdiction over land and water use. 

Such efforts would cause significant disruption to the construction industry and adversely affect not only AGC’s membership but 

also the health and welfare of the general public. 

Construction projects that lie in waters of the United States 

within the meaning of the Clean Water Act require federal discharge permits that are both costly and time-consuming to obtain. 

Many of our projects require permits and have been delayed while 

we have waited for the Corps’ district office to issue them. These 

delays have cost us money. 

As delays and costs increase, as they will under the proposal, 

some construction projects will inevitably go unbuilt. In my line of 

work, this means impeding water supply and wastewater treatment projects that are vital to improving public health and welfare 

and fixing our aging infrastructure. 

Other AGC members build highway and transit infrastructure, 

repair dams, construct flood control projects, and renovate schools, 

among many other things. Any delay in these types of projects deprives the general public of the benefits they would derive from 

them. 

Today my industry faces a lot of uncertainty regarding whether 

any one project lies in waters of the United States and requires a 

permit because the exact meaning of that term continues to be in 

debate. It can take a lot of time and effort just for the Corps and 

EPA to make a jurisdictional determination to see if a permit is 

even needed. 

Contractors and property owners alike have a right to predictability and consistency in the application of law and need fair notice of what activities are regulated. As the operators of construction sites, both property owners and their construction contractors 

risk civil and criminal penalties for failure to obtain a necessary 

permit. 

AGC is committed to protecting and restoring the nation’s waters, but we do not believe that it is in the nation’s best interest 

to put everything under federal jurisdiction in the interest of clarity. 

The Clean Water Restoration Act would do just that: make everything federal. As a result, any activity affecting any wet area in 

the United States would be subject to federal regulation. We think 

this goes too far. So do state and local governments that have long 

assumed primary responsibility for land and water use. 

The proposal would give the Corps and EPA unlimited regulatory 

authority over all waters, period, including groundwater. This is of 

serious concern to us as underground contractors. 

Under this expansion, contractors, especially underground contractors, like myself, would continually face the threat of legal liability for unforeseen and unpreventable encounters with groundwater. Every trenching operation, perhaps every hole dug in America, would require a permit to avoid risk of violation. 

7 

Finally I would like to add a thought on the so-called ‘‘compromise’’ version of the proposal that the Environment and Public 

Works Committee approved in June. It still results in the same 

outcome AGC opposes: fundamentally expanding the scope of federal jurisdiction. 

I understand that Representative Jim Oberstar may reintroduce 

this bill shortly and include the Senate’s changes. 

[The statement of Mr. Pebley is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Time has expired. During the question 

and answer period, you will have an opportunity to expand on any 

point that you were not able to make at this point. 

Mr. PEBLEY. Okay. Thank you, Madam. 

Chairwoman VELA ́ ZQUEZ. The Chair recognizes Ms. Kirkpatrick 

for the purpose of introducing our next witness. 

Ms. KIRKPATRICK. Madam Chairwoman, thank you very much for 

this opportunity to introduce a fellow rancher from my great State 

of Arizona. My mother’s family was ranchers in Navajo County. 

And we grew up knowing that healthy land makes healthy cattle, 

which makes healthy families. 

I am very pleased to introduce Mr. Jim Chilton, a fifth generation rancher in Arizona. He is here to testify on behalf of the Arizona Cattle Growers, the Public Land Council, and the National 

Cattlemen’s Beef Association. 

Along with his brother and family, Mr. Chilton ranches on 50,000 

acres near Arivaca, Arizona. Like many ranches in Arizona, the 

family ranch includes private property, state school trust land, and 

federal land, a combination that presents unique challenges and responsibilities. Though his ranch is outside my congressional district, Mr. Chilton speaks today for many of my constituents. 

Thank you, Mr. Chilton. And I know the Committee is interested 

in hearing your thoughts today. 

And thank you, Madam Chairwoman, for including ranchers as 

a critical part of our Small Business Committee. 

STATEMENT OF JIM CHILTON ON BEHALF OF ARIZONA CATTLE GROWERS ASSOCIATION, PUBLIC LANDS COUNCIL, AND 

NATIONAL CATTLEMEN’S BEEF ASSOCIATION 

Mr. CHILTON. Good afternoon, Madam Chairman, Ranking Member, and members of the Committee. And thank you, Congresswoman Kirkpatrick. I am testifying on behalf of the Arizona Cattle 

Growers Association, the Public Lands Council, and the National 

Cattlemen’s Beef Association, and my family. 

Protecting the quality of the nation’s surface water continues to 

be a priority for livestock producers. As cattlemen, we have a commitment to being good stewards of the land. And that job we take 

very seriously. 

The Clean Water Restoration Act will negatively impact small 

business owners, like me, by limiting my ability to improve my 

ranching operations. The legislation vastly expands the Corps of 

Engineers and the Environmental Protection Agency’s regulatory 

jurisdiction and will result in limitless control over all water in the 

nation and the dramatic expansion of bureaucracy. Ultimately bureaucrats would control not only water but citizens’ lives and land 

use and all watersheds. 

8 

The Chairwoman mentioned that there are 15 to 20 thousand existing 404 permits in the hopper waiting to be acted upon. Why add 

tens of thousands more? How many more bureaucrats will the 

Corps have to hire or the EPA? 

As the Supreme Court has recognized and my colleague Mr. 

Kruse has indicated, ′′it takes over 788 days and $271,596 to comply with the current process and the average applicant for a nationwide Corps of Engineers permit currently spends 313 days, the 

average cost of $28,915. As Mr. Kruse pointed out, this is not 

counting the substantial costs for changes in design and mitigation.′′ I am quoting the Supreme Court in the Rapanos decision. 

Prior to the Supreme Court Rapanos decision, I applied for a 404 

permit to construct a normal dirt ranch road across a dry wash. I 

had to hire an attorney, environmental consultants, which cost 

about $40,000. Hearing of the costs in terms of civil penalties, et 

cetera, I decided to drop and abandon the project. 

We later abandoned another needed improvement that would require culverts in two dry washes on existing roads that have been 

there for 50 years on our private land. We were again told that we 

would need a 404 permit, even though the total impact would be 

slightly more than one-tenth of an acre in a 100-acre pasture. 

I asked, ‘‘How can these two dry washes impact a navigable 

stream since the nearest navigable stream is the Colorado River, 

about 275 miles away?’’ 

The Clean Water Act of 1972 should not be expanded to include 

′′activities affecting water.′′ What life activity does not affect water? 

It would open the door to lawsuits regarding every human use. The 

citizen suit provision would allow radical environmentalists to stop 

or seriously delay any farmer’s or rancher’s improvement project 

anywhere in the nation due to the proposed expansion of jurisdiction. 

Another concern I have is the bias federal officers could have towards my livelihood: Raising livestock. A rogue Corps officer could 

dilly-dally and delay in approving a needed permit or may demand 

over-the-top mitigation. The act must remain as it is and be limited 

to navigable waters as defined by the Supreme Court’s Rapanos decision. 

[The statement of Mr. Chilton is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Time is up. Thank you, Mr. Chilton. 

Our next witness is Mr. Bob Gray. He is Executive Director of 

the Northeast Dairy Farmers Cooperatives. In this position, Mr. 

Gray is engaged in a wide array of issues affecting dairy farmers 

in the Northeast. Mr. Gray has been a long-time advocate and representative of the dairy industry as he is based in the Washington, 

D.C. area. 

Welcome. 

STATEMENT OF BOB GRAY, EXECUTIVE DIRECTOR, 

NORTHEAST DAIRY FARMERS COOPERATIVES 

Mr. GRAY. Thank you very much, Madam Chairman, Ranking 

Member Graves, and members of the Committee. I am pleased to 

have the opportunity to testify. And I apologize for coming in with 

my coat off, but I came over from a meeting in the Senate. And I 

9 

was perspiring so badly I thought if I put my coat on, I might faint. 

So I appreciate you not requiring that I put it back on. 

Chairwoman VELA ́ ZQUEZ. The gentleman is excused. 

Mr. GRAY. Thank you. 

I am Bob Gray. And, as the Chairwoman mentioned, I represent 

five major dairy cooperatives in the Northeast, from Maryland to 

Maine. We have 12,000 dairy farmer, family farm members. Our 

farms average about 125 in size. The Northeast region is very, very 

important, from a dairy standpoint, as we produce 20 percent of 

the U.S. milk supply, 30 billion pounds of milk. It is a $50 billion 

business just in the Northeast. 

My mention of coming over from the Senate side, we were just 

in a meeting over there on--and I think this is relevant to this legislation that the Committee is having this hearing on today. The 

dairy industry is in the worst crisis it has faced in years and years 

and years. 

And we were in a meeting we were having in the Senate--in fact, 

Congressman Thompson was at this meeting--was to try to find 

ways that we could resolve the crisis that dairy farmers are facing. 

Many of them are exiting the business. And we’re going to see a 

lot more leaving the business in the months ahead if prices do not 

improve. 

Now, our interest in this--I grew up on a dairy farm in upstate 

New York, in Cayuga County, New York. Actually, our farm was 

taken for a nuclear power plant siting, but the plant was never 

built because of Three Mile Island. But I am familiar in the farm 

that I grew up in with issues regarding waterways and wetland 

areas. 

I would first like to say, though, that our dairy cooperatives 

starting out really oppose S. 787. Provisions in this measure will 

have a detrimental impact on dairy producers all across the country, not only in the Northeast. 

This legislation would delete the term ‘‘navigable’’ from the underlying act, a term that appears in current law more than 80 

times and is a key concept in the act to establish a practical geographical limit on the scope of the federal government’s authority 

over water. 

Chairwoman VELA ́ ZQUEZ. Mr. Gray? 

Mr. GRAY. Yes? 

Chairwoman VELA ́ ZQUEZ. If the gentleman will suspend for a second? I just would like to clarify for the record we are not considering any pending legislation-- 

Mr. GRAY. Right. 

Chairwoman VELA ́ ZQUEZ. --since there is no legislation that has 

been introduced. 

Mr. GRAY. Okay. I just wanted to make the point, though, that 

the legislation that is under consideration in the Senate we have 

concerns with. 

By deleting that, this bill would expand federal jurisdiction over 

certain water features that the Supreme Court decided were not 

subject to the Clean Water Act. And it is taking the unprecedented 

action in the 37-year history of the Clean Water Act to expand federal government jurisdiction beyond what many legal experts tell 

us is appropriate under the commerce clause of the Constitution. 

10 

The term ‘‘navigable waters’’ for decades has described those waters that are clearly subject to federal control. It has been well-settled in law that the federal regulatory authority over navigable waters is based on Congress’ power to regulate navigation under the 

commerce clause. 

It is clear that Congress intended to use the term ‘‘navigable waters’’ when it passed the Clean Water Act in 1972. The conference 

report specifically states that Congress intends the term ‘‘navigable 

waters’’ be given its broadest possible constitutional interpretation, 

unencumbered by agency determinations, which have been made or 

may be made for administrative purposes. In making the statement, the conference report thought regulating navigable waters, 

Congress was exercising its authority under the commerce clause. 

Maintaining the term ‘‘navigable waters’’ makes it clear that 

while Congress has asserted its broad authority under the commerce clause, this jurisdiction is not limitless. 

Moreover, there are decades of cases that define the term that 

is why the Clean Water Act and many other statutes use that term 

as a fundamental basis for identifying federal waters in contrast to 

state waters. 

By deleting the term ‘‘navigable,’’ the bill, the Senate bill, S. 787, 

creates new questions and considerable confusion over the proper 

scope and limits of federal clean water jurisdiction under the Constitution and the commerce clause. As such, it will lead invariably 

to a whole new generation of litigation. That is why we have concerns for this legislation, and we wanted to pass them on to the 

Committee. 

And, again, I appreciate the opportunity to testify. And I will be 

glad to answer any questions that the Committee may have. Thank 

you. 

[The statement of Mr. Gray is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Thank you, Mr. Gray. 

And the Chair recognizes the gentleman from Oregon, Mr. 

Schrader, for the purpose of introducing our next witness. 

Mr. SCHRADER. Thank you, Madam Chair and Ranking Member 

Graves, for letting me introduce the President of the National Utility Contractors Association and one of my constituents: Mr. Lyle 

Schellenberg. 

Mr. Schellenberg was recently elected 43rd President of the National Utility Contractors Association, which represents the interests of contractors engaged in the construction of utility lines, excavation site work, and trenchless technology. It is also the oldest 

and largest trade association working solely for the utility construction industry. 

He is also President of Armadillo Underground, as we know, 

which is based in Salem, Oregon. Armadillo Underground is a 

small family-owned business he founded in 1972--his hair is a lot 

lighter than mine, I can see that, aged more gracefully--offers a 

wide variety of services but specializes in trenchless technology. 

He is well-known in my state as a leader in the utility contractor 

issue area, was appointed in 2001 by Governor John Kitzhaber as 

the contracting delegate to the Board of Directors for the Oregon 

Utility Notification Center. His commitment to educating and promoting the benefits of trenchless technology on a national level 

11 

earned him the prestigious National Utility Contractors Association 

Ditch Digger of the Year for his contributions to the industry on 

the national level. 

Lyle lives in Salem with his wife Linda and two children: John 

and Angela. And I really look forward to his testimony. Thanks for 

making the long trek from the West Coast. 

I yield back. 

Mr. SCHELLENBERG. Thank you, Congressman Schrader. I appreciate it. 

STATEMENT OF LYLE SCHELLENBERG, PRESIDENT, ARMADILLO UNDERGROUND ON BEHALF OF NATIONAL UTILITY 

CONTRACTORS ASSOCIATION 

Mr. SCHELLENBERG. Madam Chair, Ranking Member Graves, 

and honorable members of the Committee, we have 15 employees 

in Armadillo. We are down because of the economy. But we work 

on sewer and water and other infrastructure projects throughout 

the state. And I appreciate the opportunity to participate in this 

hearing on behalf of the National Utility Contractors Association. 

NUCA is a family of construction companies, manufacturers, suppliers from across the nation that build, repair, and maintain underground water, wastewater, gas, electric, and telecommunication 

systems. 

NUCA opposes the Clean Water Restoration Act as currently 

written. Our fundamental concern is the potential for increased 

permitting requirements for wet areas with little or no impact on 

the nation’s waters, higher compliance costs, in all likelihood significant increases in limitation. At the same time, desperately 

needed water and wastewater infrastructure projects could be delayed, even if they have no link to rivers, streams, or other navigable water bodies. 

Under current law, if a potential job site is considered a wetland 

under federal jurisdiction, a contractor must obtain not only the 

federal wetlands permit, known as a section 404 permit, but also 

protection in the form of contract clauses and insurance against 

any potential environmental problems. 

For example, we have a project in Oregon dealing with a road 

extension for the Port of Portland. The permit application was submitted well in advance of the project, but by the time it works its 

way through the bureaucracy. 

As finally approved, we anticipate it will be too late for the construction season to actually begin the work in this area. Therefore, 

the work will be postponed until next year. And that is typical of 

some of the delays that are caused by the existing rules. 

There is no secret the Northwest has its share of wet weather. 

In fact, it is notoriously wet. Think of the ramifications of new and 

time-consuming permit requirements of culverts, ditches, and other 

areas that might have standing water. 

Let’s now talk about the low areas of the project. Under the 

broad definition of all waters, it is very possible that a 404 permit 

could be required for the entire project. Giving the Corps and the 

EPA additional jurisdiction over all wet areas and activities that 

affect them, potentially including construction job sites themselves 

12 

will undoubtedly increase the time and the cost required to complete every construction project requiring a section 404 permit. 

Many of the regulated community have indicated that the passage of the current version of the CWRA would be the largest expansion of the Clean Water Act since its enactment in 1972. 

The ramifications of this bill are huge. As written, boundaries of 

the CWA jurisdiction would be removed. Enactment could in an instance subject ditches, water, sewer pipes, streets, gutters, manmade ponds, storm basin waters, and even puddles of rainwater to 

federal permitting requirements. 

For the first time in the 37-year history of the CWA, activities 

that have no impact on legitimate American waters would be subject to full federal regulation. 

This concept would introduce an overly broad definition of waters 

of the United States. It would eliminate the traditional basis for 

federal jurisdiction under the CWA by leaving the term ‘‘navigable’’ 

from the statute and expand federal jurisdiction. 

In the end, the only winners will be the countless attorneys who 

will question the interpretation of the law through endless litigation as all stakeholders would make their case in court. 

A do no harm approach to water regulation would be sound public policy. Our industry has demonstrated track record of creating 

jobs, increasing national output, and generating significant economic activity. 

Recognizing the potential for recovery in the underground environmental infrastructure industry, Congress should be looking at 

expanded market opportunities, not opportunities to stifle them. 

Any public works contractor will tell you that the current process 

in obtaining a federal section 404 permit is no cake walk. At the 

very least, the legislation will require considerable increases in resources needed to comply with the federal permitting process just 

to keep up with the increase in demand. 

Guidance is needed as to what area and activities are covered, 

but the legislation as written seems only to complicate the issue. 

I thank you for the opportunity to appear before the Committee 

today, and I look forward to answering any questions that you may 

have. 

[The statement of Mr. Schellenberg is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Thank you, Mr. Schellenberg. 

Mr. Pebley, I would like to address my first question to you. The 

EPA and the Army Corps issued guidance, rather than regulations, 

on water subjects to the Clean Water Act. And this happened despite the fact that there were over 66 comments to the 2008 guidance. Do you believe that bypassing the regulatory process limited 

opportunities for addressing small business concerns? 

Mr. PEBLEY. As AGC, we would ask that the EPA and the Corps 

of Engineers jointly work on rulemaking, regulatory rulemaking, 

and not reopen the statute. And in looking at the rulemaking, try 

and establish some clear and consistent definitions because that 

seems to be where a lot of the issue comes up is there are words 

that are used, but there are no definitions as to what certain words 

mean. And that has caused a lot of confusion. 

I think if we were to throw it back into the EPA and Corps, that 

they could work things out and it would be better for everybody. 

13 

Chairwoman VELA ́ ZQUEZ. Mr. Gray, many of those 66,000 comments that came from small businesses and family farmers, do you 

believe that the final guidance incorporated input from those comments that were submitted? 

Mr. GRAY. I think from a practical standpoint; for example, in 

dairy farms, which I am familiar with, where we have sod waterways--and coming from the Northeast, where we have drainage 

ditches, we have tile, we have filter strips, I think what we’re doing 

here is opening up a can of worms if we delete the term ‘‘navigable 

waters’’ because then we are open to almost anything. 

And I think that really worries my dairy producers who have 

small areas on their farms that are wetlands but also in the normal practices that farmers do to conservation practice, as I mentioned, such as sod waterways, these could all fall under the Corps 

and EPA. And that is what really concerns us. We don’t think they 

have been taken into account enough. 

Chairwoman VELA ́ ZQUEZ. Mr. Chilton, there are two major cases 

in the last decade affecting the landscape of waters subject to federal regulation. With the court split in the recent Rapanos case, it 

seems these matters are complicated further. 

So in making investments, small farmers, do you account for the 

interpretations that have or may come out of the courts? 

Mr. CHILTON. Absolutely. Thank you for the question. The 

Rapanos decision was kind of like a light from heaven, which in my 

opinion reined in a bureaucracy who had expanded the idea of 

what a navigable river is. 

Let me be very clear. In our area, I mentioned dry washes. Well, 

all of our dry washes run into Yellow Jacket Dry Wash which runs 

into Arivaca Dry Wash. Arivaca Dry Wash runs into the Brawley 

Dry Wash. And then it goes another 20 miles, and it seeps into the 

sand of the desert. Water never reaches another river. It just seeps 

in. 

So why should we in our area be subject to the Clean Water Act, 

period? And my view of Rapanos is that we are not. However, the 

Corps of Engineers in our Tucson area is determined at this very 

moment--I talked to people trying to get a permit--at this very moment is trying to say that ‘‘Yes, we have jurisdiction.’’ 

It’s absolutely ridiculous, and it does hurt. And I will never do 

anything that requires a permit. 

Chairwoman VELA ́ ZQUEZ. Mr. Kruse, certain farming activities 

are currently exempted from regulation and permit requirements 

under the Clean Water Act. These exemptions were designed to 

cover basic farming activities and include plowing, cultivating, and 

harvesting. 

Have these protections continued to reflect the realities of modern-day farming operations? 

Mr. KRUSE. Madam Chairwoman, I think, first of all, I agree 

with the comments made by the other panel members about the 

concerns. With regard to your question, I think one of the safeguards that we have today when it comes to agriculture is how 

prior converted cropland is treated currently under the Clean 

Water Act. 

One of the real concerns, whether you are a livestock producer 

or a row crop producer, is that removing the word ‘‘navigable’’ from 

14 

the Clean Water Act and changing how prior converted cropland is 

treated is of great concern for a couple of reasons. 

The litigation aspects are just overwhelming, but also the value 

of one’s land, which is a private property rights issue. As I stated 

in my testimony, many times a farmer’s and rancher’s land is their 

401(k). So if you were to change that from the way it is treated 

now, it could drastically reduce the value of one’s land. 

And so those are some of the real concerns we have that some 

of the safeguards we have now, as you mentioned, might be taken 

away and, in fact, I think undoubtedly would be taken away if the 

word ‘‘navigable’’ is removed. 

Chairwoman VELA ́ ZQUEZ. Okay. I would like to ask my next 

question to either Mr. Schellenberg or Mr. Pebley. The American 

Recovery and Reinvestment Act’s intent is to bring the money either to the states, the city, and get those ready shovel projects 

going. 

We hear anecdotal stories that some projects are on hold. And it 

seems related to your industries that water permits may be an obstacle to getting those shovel-ready projects up and running. 

I just would like to hear from any of you if you have seen any 

activity from either the Army Corps or EPA to expedite permit applications for Recovery Act projects. Yes? 

Mr. SCHELLENBERG. Well, I have not seen anything from the 

EPA or from the Corps to expedite permits. And this is a major 

concern. Even though plans may be ready for projects and they 

may be ready to go, if you don’t have those permits, you’re not moving ahead. 

That’s why a lot of people see paving projects because they can 

do paving projects that don’t require permits. But the utility work 

and stuff like that, a great majority of those projects, at least out 

in Oregon, do require those permits. 

And so the shovel-ready for a lot of stuff, it just doesn’t happen 

because of the permits. Even though the plans are sitting there, 

the projects are ready to go, the permits are delaying them. 

Chairwoman VELA ́ ZQUEZ. Any other witness who would like to 

comment? 

Mr. PEBLEY. I would just like to comment on that. In the State 

of Texas, we have not seen that many dollars come out of the stimulus package yet. There were some highway projects that have 

come out that Mr. Schellenberg brought up that were basically repaving existing roadways because they were quick and easy and 

didn’t require any permits. 

In the past, we have had some bridge projects where we had contracts signed, we were told to go to work by the State of Texas, we 

go to mobilize out there, and then they realize, oh, we don’t have 

a 404 permit or we have applied for it, but it hasn’t come back yet. 

So our whole operation stops, waits for the Corps to issue the permit, which they typically aren’t in a real big hurry on that because 

they’re dealing with a state agency and sometimes there might be 

some turf issues. And we were left holding the bag with 15 guys 

standing around trying to do a project. 

So it has been an issue in the past. Yes, ma’am. 

Chairwoman VELA ́ ZQUEZ. I recognize the Ranking Member. 

Thank you. 

15 

Mr. GRAVES. Thank you, Madam Chair. 

Each of you kind of just briefly touched on the litigation aspects 

as a result. What I am talking about is third party litigation if 

some of the proposals out there for the Clean Water Act were implemented. 

Could you tell me from your perspectives, each of you--and we’ll 

start with Mr Kruse. Can you tell me how you see third party activist groups, at least the litigation from them, increasing if this 

were implemented and what that is going to mean to agriculture 

and small business in the future? 

Mr. KRUSE. I think that is one of the greatest concerns we all 

have. And I would refer back, Congressman Graves, to a comment 

you made during your opening comments about farmers and ranchers striving to be good stewards of the land. And I think that, without a doubt, is something that we all strive to do is take care of 

the land that we are temporarily empowered to take care of. 

I think the worst case scenario--and I think this would indeed 

happen, and some of the panel members have already maintained 

it--you know, if the word ‘‘navigable’’ is taken out of the Clean 

Water Act, then we’re talking about every pond, every lake, every 

stream, every puddle, ephemeral areas, which are areas where 

after a rain, water may stand temporarily and then go away. And 

so you might have an area where water might stand after a rain 

for a few days a year and be dry the majority of the days of the 

year. But that would be under the jurisdiction of the federal government. 

And, you know, I can see a scenario which we see all the time 

where an attorney shows up and representing a client. And thousands and thousands and thousands of dollars later and much time 

and agony, you could well almost be without a farm or a ranch 

after trying to defend yourself because of a third party lawsuit. 

And, you know, I think the fear we all have is whatever the intent of Congress might be, the courts will probably end up--if the 

word ‘‘navigable’’ is taken out of this, the courts will end up deciding what is going to happen and what our fate is going to be. And 

that is not something we really want to think about. 

Mr. GRAVES. Mr. Pebley? 

Mr. PEBLEY. Thank you. 

I have the same concerns that Mr. Kruse has on the word ‘‘all,’’ 

instead of ‘‘navigable.’’ In my testimony, I mentioned basically 

groundwater. We install water lines, sanitary sewer lines, and 

don’t expect many of you members of Congress know this unless 

you are in the business where most people can--but there is typically groundwater everywhere. 

And in some locations, you know, like in my home city, you can 

go down eight feet. And you can hit groundwater. And it is not a 

rushing water, but it is water that seeps in. 

And in order to keep our excavation safe and keep the project 

moving forward, we have to pump the water out of that excavation 

and then put in a suitable backfill and then place the pipes in 

there. 

Under this rule, that groundwater, whether I know it is there or 

not, I have to get a 404 permit. So I could be going along at the 

start of my project, and the ground is perfectly dry. And I come up 

16 

to an area where there is groundwater coming in because there is 

no amount. It just says, ‘‘all waters.’’ 

And if I have to start pumping it, then I have to shut down, get 

a 404 permit, and I don’t know how far that groundwater is going 

to go. It could go for the entire length of the project or it only may 

go for 100 feet or so. 

So this opens up a huge, huge issue, especially in our market, 

for this issue. And I think it is something that is completely unattended by the word of inserting ‘‘all,’’ instead of ‘‘navigable.’’ 

And any third party who could be driving by and they see a 

pump running in an excavation could lead to asking where is your 

404 permit. And I see that as a very, very dangerous situation for 

all of us. 

Mr. GRAVES. Mr. Chilton? 

Mr. CHILTON. I am a victim of third party lawsuits. Our ranching 

operations have been affected by four separate lawsuits filed by the 

Center for Biological Diversity. The Center for Biological Diversity, 

standard operating procedure sues the federal government, in three 

cases the Forest Service, in one case the BLM, Bureau of Land 

Management. They accuse the Forest Service or BLM as having not 

done something. In three of the cases, it was properly consult with 

the U.S. Fish and Wildlife on endangered species. 

The problem is the Center for Biological Diversity submitted information in our case that was not even true. They were lies. They 

were misrepresentations. 

I got so angry because of being a victim of a third party lawsuit 

that I sued the Center for Biological Diversity for libel, misrepresentation, and plain lying. And the jury came back and said 10 to 

0 the Center for Biological Diversity was guilty, 9 to 1 that they 

awarded me $100,000 in damages, 9 to 1 that they gave me 

$500,000 punitive damages, punishment for the Center lying about 

us. 

And it is just really awful as a citizen of the United States to 

have your ranch and farm and you are being a good steward--and 

I have gotten all kinds of environmental awards for being a good 

steward. It is really, really awful to have a radical environmental 

group sue the government and they are really after you. They are 

suing the government to get rid of me. 

And as a citizen, it is just upsetting. You roll over and roll over 

at night. You get angry. And it is just awful. Why is a citizen of 

the United States put through such horrible, horrible circumstances? I really object. It is just awful, these third party lawsuits. 

Mr. GRAVES. Mr. Gray? 

Mr. GRAY. Yes, Congressman Graves. I certainly agree. I can’t 

add too much to what has been stated, although I would add a 

point. We had a dairy producer in my home county, Cayuga County, who was sued on a nutrient management issue by a third party. 

This lawsuit went on for almost 10 years. And the dairy producer 

won it in the end. It got some of the money back that they had put 

in the legal fees. No question this issue will spur more lawsuits. 

You can imagine having that hanging over you for that length of 

time. I mean, really, justice delayed is justice denied. And I can’t 

17 

believe that this won’t increase litigation by third party litigation 

much, much greater. 

Mr. GRAVES. Mr. Schellenberg? 

Mr. SCHELLENBERG. Yes. Mr. Graves, you know, one of the things 

that Armadillo does is we do a lot of culvert replacement and remediation work for both the highways as well as the railroads. And 

quite often we are working under the existing Clean Water Act and 

have all the permits. 

And people come out. And they are opposed to you fixing existing 

culverts and infrastructure of these important railroads and highways. If we don’t fix those things, what happens is you get a washout on the railroad or highway, you have got far greater damage 

downstream. So people are opposed when you are doing things 

right. 

Now you take that further and you move it. You expand that out. 

You have got puddles. You have got this and that. Especially in Oregon, you know, I can see significant people coming here from 

groups, coming forward, just trying to stop urban growth, just trying to stop anything that ‘‘not in my backyard’’ type of things. 

And they are going to say, ‘‘Now we have a vehicle that we can 

use. We are going to say this is a wetland.’’ We can use that to prevent any kind of necessary infrastructure that we need in our communities. 

Mr. GRAVES. Thank you. 

Mr. CHILTON. May I add one more comment? 

Mr. GRAVES. Real quick, yes. 

Mr. CHILTON. The people who sue under third party lawsuits 

often then collect money from the U.S. Government under the 

Equal Access to Justice Law. So it is a cottage industry. It is an 

industry to sue the government and then collect money. This is 

wrong. This is not a democracy. The Federal Government ends up 

paying for their suing. 

Mr. GRAVES. Chair-- 

Chairwoman VELA ́ ZQUEZ. Ms. Kirkpatrick. 

Ms. KIRKPATRICK. Thank you, Madam Chairman. My question is 

for all of the panelists. I have strong concerns about the potential 

reach of the Clean Water Restoration Act, and I want to know your 

opinions. Do you think our current practice sufficiently protects our 

nation’s water interest, or is there a role for expanded jurisdiction 

if it stops short of removing navigable waters from the definition? 

So I will start with Mr. Schellenberg and then just work down. 

I would like to know your opinions about that. 

Mr. SCHELLENBERG. Well, we would like any changes that are 

made, if they are made, we would like them to be very clear and 

concise, so they are easy to understand. And that is not the case 

that typically happens in Government, so we--you know, we would 

only support something if it was very clear and concise. And without knowing what it is we are agreeing to, we really can’t agree 

to it. But I think leaving ‘‘navigable’’ in there is very good. 

Thank you. 

Mr. GRAY. I think it probably takes more work on the part of the 

Corps and EPA, because the word ‘‘navigable’’ is in there. But I 

think that is good, because then you make a determination that is 

more comprehensive. When you take that out, then I just think you 

18 

are going to--there is nothing to really be sort of the anchor as to 

how you make those determinations. So I think that it is very critical that it be left in. 

Mr. CHILTON. Thank you. That was a very good question. Bureaucrats over time expanded the original intent of the legislation. 

In the Clean Water Act, they have expanded since 1972 the concept 

that even my dry lands are part of the waters of the United States. 

So that is a real problem. 

Why can’t the Corps of Engineers, if they think there is a problem, identify the problem and work with the landowner about the 

problem, come to an agreement, for what might be done in a specific spot in a particular state, and then with the help perhaps of 

grant money, solve that particular problem, in contrast to throwing 

a net across the whole of the United States to regulate as contemplated by the expansion of the Act. 

Mr. PEBLEY. As an elected official who is in charge of water and 

wastewater for the city of McAllen, you know, I am all for clean 

water. I think it is--we pump our water for the citizens of McAllen 

out of the Rio Grande River, which shares a border with Mexico. 

So, you know, I want to make sure that the water that we are 

pumping out of that river is as clean as possible, and not only reduces the costs of purifying the water for the citizens, but also just 

ensures their safety and that they are getting a good product. 

So I think it is very important that the word ‘‘navigable’’ be left 

in the current role as it is, and that ‘‘all’’ should not be used to replace it. I think it would be very important for Congress to encourage and oversee the administrative rulemaking with the EPA and 

the Corps of Engineers jointly as was recommended by the Supreme Court in the Rapanos case, in order to try and get more clarity and consistency for all people. 

Mr. KRUSE. I think there is logic for the Federal Government to 

have oversight on navigable waters. And of course, as we all know, 

in 1972 when the Clean Water Act was written that is what it said. 

The courts have taken some liberty, as we know, and they have 

been mentioned here today, in expanding that. I believe, and it is 

just an opinion, but I think the intent, if we go back to ’72, was 

‘‘navigable waters.’’ 

And so it is a concern to see some of the things that have occurred. But I think there is no logic in removing the word ‘‘navigable’’ and giving the Federal Government jurisdiction over every 

drop of water, theoretically, that exists, including little puddles 

that develop after a rain. 

We all--I know you all hear all kinds of horror stories about the 

overreach of the Corps and the EPA, and we certainly hear them 

and live them every day. And I agree with Mr. Pebley, I think it 

is very important for you all to make sure that your intent is very 

present in the rulemaking. And, you know, I know that sometimes 

you all get frustrated by the overreach of the government bureaucracy and going beyond what your intent is. But this is a clear case 

where we really need to have a clear intent, and we need to keep 

the word ‘‘navigable.’’ 

Chairwoman VELA ́ ZQUEZ. Time has expired. 

Ms. KIRKPATRICK. Thank you. Thank you, panelists. 

Chairwoman VELA ́ ZQUEZ. Mr. Schock. 

19 

Mr. SCHOCK. Thank you, Madam Chairwoman. Thank you for 

having this hearing today to find out firsthand from those in the 

industry how this will affect your respective roles. I have a number 

of questions. 

Mr. Kruse, on behalf of the Farm Bureau, as the Farm Bureau 

President, you talk a little bit about some instances that you are 

aware of folks that have applied for a 404 permit in the past. Before we get to that, I guess I want to make it clear who is charged 

with overseeing who has jurisdiction with all of the non-navigable 

waters in your state, or in all states? 

Mr. KRUSE. Well, that varies from state to state. In our state, it 

is our Department of Natural Resources, and the NRCS within 

USDA have some oversight role to play in that. 

Mr. SCHOCK. So each state basically is in charge of overseeing 

and protecting those natural waterways, be it a pond or a lake or 

a stream, that do not have a, let us say, natural impact. 

Mr. KRUSE. Yes, sir. That is correct. 

Mr. SCHOCK. Okay. So it is not as though these waterways are 

not being protected. It is not as though no one has jurisdiction or 

oversight or is looking out for the protection of these waterways. 

Mr. KRUSE. Yes, sir. That is correct, and that is a very important 

point. 

Mr. SCHOCK. That is important to point out. 

Mr. KRUSE. Yes, sir. 

Mr. SCHOCK. Second, you did mention those farmers who have 

applied for 404. Remind me again how much was spent between 

mitigation and the legal work, and so on, for those that have applied for a 404. 

Mr. KRUSE. Well, it can vary. You know, the costs can go up into 

the hundreds of thousands of dollars. One instance I cited was a 

farmer who wanted to improve 11 acres of his land, and he did go 

to the NRCS and USDA. 

Mr. SCHOCK. And how long did that take? 

Mr. KRUSE. Well, it took almost two years, and then he finally, 

when he found out that the Corps was going to make him mitigate 

this with--mitigate the 11 acres with 17.7 acres, and all the expense that was going to be incurred, he finally just threw up his 

hands and said, ‘‘I can’t do it. It is just--it is going to cost me more 

than the land is worth.’’ 

Mr. SCHOCK. So it cost him a couple hundred thousand dollars, 

a few years of his time, and the end result was nothing. And basically, he couldn’t move forward on the project. 

Mr. KRUSE. Yes, sir. And I think in this case he didn’t spend-- 

it can cost well over $200,000, but I think he stopped the process 

before he spent that amount of money, because he just--when the 

Corps told him he had to have a permit, he had to mitigate it, he 

just said, ‘‘I can’t justify the expense.’’ 

Mr. SCHOCK. Okay. Thank you very much. 

Mr. Schellenberg on behalf of National Utility Contractors Association, you also detailed some of the problems with the permitting 

that would be required. I guess my question to you is, given the 

additional permitting that would be required, can you see instances 

where your utility contractors, rather than do the work, would turn 

20 

away work simply because of the number of years that would be 

required to get the necessary permitting to do the work? 

Mr. SCHELLENBERG. I think--I am not sure we would turn away 

work, but we would look at it differently. It is certainly going to 

be--going in, if you know it is going to take--you know, you are bidding a job here, and you are not going to get to do it for a couple 

of years, it makes it harder to bid, because you are calculating 

things in the future, you are going to have to allow for that. 

But those are the things that--it is going to make things--every 

project is going to become much more expensive. And if it gets 

changed, if ‘‘navigable’’ gets taken out, I know in Oregon it is just 

going to open it up that everything is--those delays are going to be 

just astronomical for all kinds of projects. 

Mr. SCHOCK. So while you will be happy to do the work, it might 

take a few more years before you get to do it, and it will cost the 

consumer more money. 

Mr. SCHELLENBERG. Right. You might have a $10,000 project, but 

it might take you two years to do it, you know, so you are going 

to have to have a little more money for--I mean, because some 

projects are big, some projects are small, so-- 

Mr. SCHOCK. Sure. 

Mr. SCHELLENBERG. --there is a lot of variation there, but-- 

Mr. SCHOCK. It is not exactly something we want to do while we 

are trying to stimulate the economy? 

Mr. SCHELLENBERG. It is not what we want to do as we stimulate 

the economy. 

Mr. SCHOCK. Thank you. 

Mr. Chilton, on behalf of the Cattlemen’s Association, I, too, 

share your frustration with frivolous lawsuits. But my question to 

you is really about your farmland. You said it was your greatest 

asset. And I guess my question is, how do you see removing ‘‘navigable waterways’’ from this legislation impacting the value of your 

farm ground? 

Chairwoman VELA ́ ZQUEZ. Mr. Schock, I am afraid the time is expired. 

Mr. SCHOCK. Okay. 

Chairwoman VELA ́ ZQUEZ. And we have other members, and there 

will be a vote on the floor today. 

Mr. Ellsworth. 

Mr. ELLSWORTH. Thank you, Madam Chair. 

Thank you, gentlemen. 

Mr. CHILTON. May I submit that answer to the record? 

Chairwoman VELA ́ ZQUEZ. Sure. 

Mr. CHILTON. Okay. 

Chairwoman VELA ́ ZQUEZ. Without objection. 

Mr. ELLSWORTH. First, let me say, Mr. Kruse, that Don Villwock 

called me and said trust anything you say. So I will take that to 

heart. And let me say that, first, I agree that ‘‘navigable’’ should 

be left in there. And my question would be--I know this document 

from ’77, I think the Clean Water Act was probably at least 10 or 

11 pages long. 

What do you think by the proposed removal of ‘‘navigable’’ that 

those rogue bureaucrats were trying to--what do you think they are 

trying to achieve, the folks on the other side of this, by picking that 

21 

one word out of that document that--is there this attempt to control 

every little pebble, every little pond, every little ditch, every little 

stream, that they want that jurisdiction, and that responsibility to 

control that? 

Mr. KRUSE. Well, Congressman Ellsworth, I will certainly pass 

along to Don Villwock that I appreciated his comments. He is a 

dear friend. 

Mr. ELLSWORTH. Great guy. 

Mr. KRUSE. I can only believe that the intent is to dramatically 

expand the reach of Federal Government agencies in a way that I 

believe will be very harmful to farmers and ranchers and small 

business people, both in terms of cost, which ultimately will be 

passed on to the consumer, and in terms of--as we have talked here 

today, in terms of time that it takes to complete some of these. 

It is really frightening to think that any pond in the State of Indiana or Missouri or any other state, with the word ‘‘navigable,’’ 

with one word taken out, which appeared I think 80 times in the 

Act, but that then the Federal Government is going to have jurisdiction over a pond that some individual built, and that some individual owns on their own land. 

That is a very, very frightening thought, and it is just--it can 

only--to your question, it seems to me it can only mean that there 

is a real desire to just continue the encroachment of jurisdiction by 

the Federal Government agencies. 

Mr. ELLSWORTH. Let me ask one more thing, and this may seem 

a little off subject. I was a sheriff in my former life, and so I probably felt I was the victim of frivolous lawsuits from inmates as 

much as anybody in the room. If I can go down the line, just a yes 

or no, how many of you have hired an attorney, been listed as a 

plaintiff on a lawsuit, or hired an attorney to initiate a proceeding? 

You can just--have you ever--down the line, yes or no. 

Mr. PEBLEY. Yes. 

Mr. CHILTON. Yes. 

Mr. ELLSWORTH. I see four yeses, and Mr. Kruse shakes his head 

no. So just curious how many--I know we talk a lot about lawsuits, 

and four out of the five have initiated some kind of plaintiff and 

hired a lawyer to initiate something. 

Thank you. I would yield back. 

Chairwoman VELA ́ ZQUEZ. Time is expired. 

Mr. Thompson. 

Mr. THOMPSON. Thank you, Chairwoman and Ranking Member, 

for holding this important hearing. I want to--I have an opening 

statement I will go ahead and submit for the record. 

Chairwoman VELA ́ ZQUEZ. Without objection. 

Mr. THOMPSON. Okay. Thank you. So we can get right to the 

questions here. 

Mr. Kruse, in your testimony I was struck, you mentioned that 

expanding the scope of the CWA would sweep many forestry activities under its regulations. I have Allegheny National Forest in my 

district, 513,000 acres. It is an economic engine, or it has been. 

Could you elaborate on specifically how forestry might be affected? 

Mr. KRUSE. Yes, sir. I think if we take the word ‘‘navigable’’ out, 

if the word ‘‘navigable’’ were taken out of the Clean Water Act, that 

is going to have, in my judgment, a serious impact on any type of 

22 

livestock, row crop, or forestry operation, because currently, if you 

take a 100-acre tract of timber, and you are going to find--after a 

rain, for example, you are going to find standing water in the areas 

of that timber, that goes away in a day or two. Currently, that is, 

as you know, not under the jurisdiction of the Corps of Engineers 

and EPA. If the word ‘‘navigable’’ is removed, it will become that. 

And I think Mr. Pebley made a really good point a while ago, it 

would apply to forestry. If you are going about your business and 

all of a sudden you discover water in a place that you didn’t realize 

it was going to be, you have a serious problem on your hands if the 

word ‘‘navigable’’ is not in there. And don’t get me wrong, I don’t 

think any of us would say that the Clean Water Act is perfect with 

the word ‘‘navigable’’ in. We are just saying it would be really scary 

if it were not in there. 

Mr. THOMPSON. A whole lot worse. You know, I mean, my--the 

ANF, we have issues now with, as I think Mr. Chilton described, 

radical environmentalists who do nuisance lawsuits for different 

reasons. Most recently we had the Sierra Club and some others 

that shut down oil and natural gas drilling for--on presumed environmental issues that really weren’t out there. 

So what is your impression in terms of the standing water, then? 

It seems like the standing--that this mud puddle, then, would provide an excellent motivation for radical environmentalists to file 

nuisance lawsuits? It would just, you know, wreak havoc on our 

economy. 

Mr. KRUSE. Absolutely. Without question. And a small ditch, a 

little stream, any water. Someone mentioned a while ago gutters. 

I mean, any place water exists, without the word ‘‘navigable,’’ I 

mean, theoretically, and I think practically, the Corps and the EPA 

are going to try to regulate it. 

Mr. THOMPSON. And not a question, but an observation. Mr. 

Chilton, you talked about the government paying these lawsuits. 

That is what happened in my congressional district with that forest. The Forest Service--no court handled the case, and the Forest 

Service voluntarily paid all of the court costs for the Sierra Club. 

Mr. Gray, good to see you again. You are all over the place, and 

that is a good thing. Dairy farmers, as you know, in both my home 

State of Pennsylvania and nationally, are severely struggling. It 

seems to me that changing the definition will only cause additional 

unnecessary costs to an already struggling industry. Would you 

agree with that statement? And where do you see those costs--what 

will those costs do to our dairy farmers that, you know, on the average I think they have not large operations, about 125 heads, 

something like that. 

Mr. GRAY. Right. Well, I agree. Absolutely. I mean, I don’t know 

how they would pay for litigation costs today. They can’t pay their 

feed bills. We have got farmers in the northeast that are using generators to run their farms today, because their electricity has been 

cut off. That is what the situation is. 

I can’t imagine what a dairy farmer would do if they were litigated by third party on a waterway. They wouldn’t be able to deal 

with it, because the money just isn’t there. So it would have a huge 

economic impact, particularly right now. 

23 

Mr. THOMPSON. How about the mitigation costs? Even if it 

doesn’t get--you don’t get a frivolous lawsuit, you have permitting 

costs, I heard consultant costs-- 

Mr. GRAY. Right. 

Mr. THOMPSON. --and mitigation costs. 

Mr. GRAY. It is just something that they couldn’t pay for right 

now, and so that would just add undue economic burden. 

Mr. THOMPSON. Can you just--we don’t have much time. Can you 

give me some brief specific examples of how changing the definition 

would affect dairy farmers in particular. 

Mr. GRAY. Well, changing it, yes. I added a couple of quick things 

before, and that is in ditches and in sod waterways and places 

where we normally do conservation practices on the land, so that 

we can get better drainage, and so forth, changing that definition, 

taking ‘‘navigable’’ out of there, could affect those kind of conservation practices, which are done to reduce soil erosion and nutrient 

runoff, and yet they could become expanded jurisdiction over those 

kind of practices and lands of that type. 

Chairwoman VELA ́ ZQUEZ. Time is expired. 

Ms. Halvorson. 

Ms. HALVORSON. Thank you, Madam Chairwoman. 

Thank you all for being here. And like many of the other people 

that serve on this Committee, I also serve on Agriculture. So this 

is something I hear about quite often. And when I go back home 

and talk to the people on my advisory committee and many of my 

farmers, this is something that I hear the most is about the ‘‘navigable.’’ And I just gave a speech just Monday to the chemical and 

fertilizer people in CropLife, and, again, this is something. 

With all of this being talked about, I am curious, how did this 

happen in the Senate? Is it not talked to the Senators like it is to 

us? Does anybody want to answer that? I guess I am just curious- 

- Mr. CHILTON. I would try. I don’t know, but I suspect that the 

environmental groups in this nation are thirsting for more power, 

and they have effectively lobbied the Senate to take out of Committee this S. 787. And our two Senators from Arizona were opposed. 

Ms. HALVORSON. Okay. Thank you, Mr. Chilton. 

A few other questions. Mr. Kruse, if you can maybe help me 

here, do you think the definition of ‘‘navigable,’’ that is also something that I guess I hear from different people. Some people’s definition of ‘‘navigable’’ is different from all of your definition of ‘‘navigable.’’ 

Now, I agree with all of you we don’t want to open a Pandora’s 

Box, and we don’t want anybody encroaching on your property, 

which is your rights. There is already a backlog. First of all, who- 

-if anybody wants to give me their definition of ‘‘navigable,’’ which 

maybe we shouldn’t, because we have already heard, that you 

think every pond, even if it is only there for a couple hours a year, 

would be part of--if we took it out. 

Who would then be able to do this, if we have already got a backlog of 15- to 30,000 permits? I mean, who would enforce this? And 

do think that this is just a slippery slope because the EPA wants 

to take over more jurisdiction than you think they should have? 

24 

So if I could just start with Mr. Kruse, and if anybody else wants 

to answer that, it is probably about three or four questions and we 

don’t have that much time. But basically it is about the slippery 

slope, EPA, and the definition of ‘‘navigable,’’ and how do we even- 

- Mr. KRUSE. I think you make an excellent point, because the 

backlog is horrible now. And, as you say, if we remove the word 

‘‘navigable,’’ the backlog will be unconscionable. I think as we have 

talked here today it will open the door to third party lawsuits like 

we can not even believe. It encroaches on private property. It is 

just totally void of common sense. 

And I think we would all agree that there is logic, as I said a 

moment ago, in the Federal Government having oversight of real 

navigable waters. And I think our definition of ‘‘navigable waters’’ 

would--we could all get together and come up with a pretty clear 

definition. As I said a moment ago, the courts have kind of 

stretched that out a little bit, but we are all just very frightened 

about what may happen and probably without a doubt will happen 

if the word ‘‘navigable’’ is removed. 

Ms. HALVORSON. If anybody else wanted to speak on that. 

Mr. CHILTON. I would like to. I think that ‘‘navigable,’’ as the 

U.S. Supreme Court referred to it, is the best approach in the 

Rapanos decision. 

Ms. HALVORSON. The one where it talks about even ponds and- - Mr. CHILTON. There has to be a nexus between a navigable river 

and the water in question. 

Ms. HALVORSON. Correct. Correct. 

Madam Chairwoman, I yield back. 

Thank you very much, panelists. 

Chairwoman VELA ́ ZQUEZ. Mr. Gohmert. 

Mr. GOHMERT. Thank you, Chair. Appreciate it. 

Appreciate all your testimony. This is quite a problem, and certainly in East Texas where I am from we have experienced the 

problem. We have seen rivers and creeks flood, and then immediately here come all of the federal bureaucrats say, ‘‘Whoa, this is 

wetlands now. You can’t do anything.’’ 

And have any of you guys had property that flooded, and you 

were told it is now wetlands and you can’t use it for anything? 

None of you have any wetlands on your property? 

Mr. GRAY. There is probably examples of that, Congressman, but 

I don’t--you know, in the farmers that I deal with, but I would have 

to ask them. 

Mr. GOHMERT. Well, didn’t one of you say you had some wetlands 

on one of your property? Yes, sir. Mr. Kruse. 

Mr. KRUSE. I have prior converted cropland that--in other words, 

as you know, land that I farm that is just great farmland, but at 

one time--I live in the very southeast part of Missouri, the 

‘‘Bootheel’’ they call it, and at one time it was all swampland. And 

it was cleared and drained, and now it is the start of the Mississippi River delta, so it has got--it is great farmland, as Congressman Graves said. 

But part of my farm in different areas of several fields is identified as prior converted. You would never know it walking over it, 

25 

but, you know, one of the concerns that not only I but so many 

landowners have is what may happen if we change the Clean 

Water Act, because, you know, it has been very clearly codified that 

prior converted is not under the jurisdiction of the Clean Water 

Act. And there is a real concern about what might happen if we 

change that. 

Mr. GOHMERT. Right. Do none of you know people that have had 

water end up standing either by Beaver Dam that was--later had 

federal officials come in and say, ‘‘That is now something we will 

regulate. You can’t use it’’? Surely you all know of people that have 

had that happen, correct? I am getting some nodding heads. Yes, 

sir. 

Mr. CHILTON. I know of a company that had a major manufacturing facility, and their cooling system, their air conditioning system, was such that it, as all systems, condenses water. Instead of 

putting it in the sewer, they piped the water out into adjacent 

property. And then, the Fish and Wildlife and I think the Corps of 

Engineers came along and said, after four or five years, ‘‘Oh, you 

have got a wetland,’’ and then wouldn’t let them build on an addition to the factory that would have created jobs and wealth. 

Mr. GOHMERT. Well, thank you. And that is exactly where I am 

going. You know, you have talked--we have talked about shovelready projects. But if we eliminate the word ‘‘navigable,’’ then some 

of these shovel-ready projects that were going to provide jobs, 

which puts food on the table and puts taxes in the coffer so we in 

Washington can squander it like we have been lately, all that 

comes to a stop because ‘‘navigable’’ has been put in legislation that 

starts creating permits that weren’t previously there. 

So that is something that hits me. And as an aside, you know, 

after Hurricane Katrina, and based on the experience we have had 

in East Texas with rivers flooding and all of the federal officials 

saying you can’t use it anymore, I kept wondering when some--one 

of those federal officials was going to run into New Orleans and 

say, ‘‘Whoa, this is all wetlands. Nobody can touch it. And see these 

high-rise hotels? We may lease those out as multi-level duck blinds 

next year.’’ But nobody ever did that, and it just seemed to be a 

real conflict in the way people were treated. 

But, Mr. Pebley, I was curious, as I understand you were proposing the rulemaking process to clarify the federal limits of our 

waters, rather than legislation. When it comes to legislation, you 

can vote me out if you don’t--I mean, constituents can, if they don’t 

like what we put in legislation. But on the rulemaking, you can’t 

really touch the federal rulemaking bureaucrats. Why would you 

prefer rulemaking over just fixing it right the first time in legislation? 

Mr. PEBLEY. Where I come from on that is we know what we 

have right now. We know what the current law is. We know where 

the pitfalls are in that law. And with Congress overseeing and 

working with the EPA and the Corps to establish good administrative rulemaking through input by ourselves and other-- 

Mr. GOHMERT. Is that an oxymoron ‘‘good administrative rulemaking’’? It just sounds like there is a conflict there. Well, I understand your position, and my time has run out. But I have real conVerDate Aug 31 2005 13:08 Nov 10, 2009 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\51033.TXT DARIEN
26 

cerns when we don’t make it clear in legislation and leave it to bureaucrats you can’t touch when they screw up. 

Thank you. I yield time. 

Chairwoman VELA ́ ZQUEZ. Time is expired. 

Mr. Westmoreland. 

Mr. WESTMORELAND. Thank you. I am sorry. Parliamentary inquiry, Madam Chair. 

Chairwoman VELA ́ ZQUEZ. Yes? The gentleman can state his parliamentary-- 

Mr. WESTMORELAND. Are we going to have several rounds of 

questioning? 

Chairwoman VELA ́ ZQUEZ. In consultation with the Ranking Member, we are going to have one round of questioning. But I always, 

always--you know, Mr. Westmoreland, I don’t know where you are 

coming from. Here we are dealing with a very important issue, and 

you know that this Committee is run in a bipartisan way. 

Mr. WESTMORELAND. Absolutely. 

Chairwoman VELA ́ ZQUEZ. So if you need extra time in a second 

round, I will grant it to you. 

Mr. WESTMORELAND. So, but you said we are only going to have 

one round? 

Chairwoman VELA ́ ZQUEZ. If you haven’t finished with your questioning, I always ask, before we conclude our proceedings, if there 

is any member who wishes to ask any more questions. So I am 

going to give you your five time period, in consultation with the 

Ranking Member. It has always been the tradition of this Committee, and under Rule 6 of the Small Business Committee, I have 

the authority, in consultation with the Ranking Member. It has always been like that. But if you-- 

Mr. WESTMORELAND. So are you-- 

Chairwoman VELA ́ ZQUEZ. --need extra time, I will grant the extra 

time to you. 

Mr. WESTMORELAND. Well, just another parliamentary inquiry, 

Madam Speaker. 

Chairwoman VELA ́ ZQUEZ. Yes. 

Mr. WESTMORELAND. So are you saying Rule 6 of the Committee 

overrides the House rules? 

Chairwoman VELA ́ ZQUEZ. No, it is in concert with the House 

rules. 

Mr. WESTMORELAND. Okay. So you are saying it is in conjunction 

with that, or you are-- 

Chairwoman VELA ́ ZQUEZ. Correct. 

Mr. WESTMORELAND. --acting within the House rules. So Clause 

2J of 2A of Rule 11 of the House rules permits me to ask each 

member of the panel to have five minutes of questioning for each 

one of those members. Are you saying that the Committee rule will 

override the rules of the House? 

Chairwoman VELA ́ ZQUEZ. The Committee rules--the Committee 

rules give me the authority, with the Ranking Member-- 

Mr. WESTMORELAND. To override-- 

Chairwoman VELA ́ ZQUEZ. --so that we can-- 

Mr. WESTMORELAND. --the House rules? 

27 

Chairwoman VELA ́ ZQUEZ. --give an opportunity to every member. 

How long have you been in this Committee? And how long have 

you been in Congress? 

Mr. WESTMORELAND. This is my third term, but I don’t know 

that that has anything to do with the-- 

Chairwoman VELA ́ ZQUEZ. You were in the majority--when you 

were in the majority, did you ever raise this issue? 

Mr. WESTMORELAND. No, the-- 

Chairwoman VELA ́ ZQUEZ. To give every member five minutes to 

question every-- 

Mr. WESTMORELAND. No, ma’am, I didn’t, because I never had an 

opportunity. But let me explain to the Chair Lady, it doesn’t matter how long you have been in Congress, if you have been here one 

day or 20 years, the rules are the rules. And so that does not have 

any effect on how the rules are applied or-- 

Chairwoman VELA ́ ZQUEZ. The gentleman is being recognized for 

five minutes. 

Mr. WESTMORELAND. Well, and I thank the gentlelady for that. 

Mr. Chilton, just to give you some other things to look forward 

to, if you think the Clean Water Act, which I believe the gentle 

Chair Lady was an original co-sponsor of, that would be H.R. 2421, 

that was introduced last year with 166 Democratic co-sponsors and 

10 Republicans. But if you think taking ‘‘navigable’’ out of the 

Clean Water--wait until you get some information on Mr. Cass 

Sunstein, who is the President’s nominee for the Office of Information and Regulatory Affairs. 

He believes that livestock, wildlife, and pets have legal rights to 

file lawsuits. So if you think a third party lawsuit coming for a 

water issue is a problem, wait until your cows start suing you. 

My question to each one of you I guess is, how clean is clean? 

Mr. Kruse, we will start off with you. 

Mr. KRUSE. Well, I think, as has been stated by many of us 

today, and, again, Congressman Graves mentioned this in his comments, whether you talk about clean water or clean air, or whatever, I have always believed as a fourth generation farmer--in fact, 

my dad will be 99 years old in September, and from the time I was 

a little boy he continued to lecture me, ‘‘Son, you want to leave this 

farm in better shape than you took it over.’’ 

And so if we are talking about water, you know, we are concerned about the overreach of the Federal Government by taking 

the word ‘‘navigable’’ out. By the same token, we in no way, none 

of us here, are saying that we want to disregard trying to do everything we can to make sure our water is clean, our air is good, the 

soil is good. 

Most farmers and ranchers live on the land they care for. Their 

children and grandchildren run on the land and drink the water 

and breathe the air. So it is important to be good stewards of the 

land and the water and the soil. But at the same time, I think you 

have to strike a balance and have some common sense. And the 

fear that we have all expressed here today is the fear of taking the 

word ‘‘navigable’’ out of the Clean Water Act and what that could 

portend down the road. 

Mr. WESTMORELAND. And you have made reference to some of 

the instances that you would have, such as a pothole or a prairie 

28 

hole, so to speak, where maybe an animal or a deer has gone and 

tried to dig up some salt or whatever that creates a hole. In that 

same piece of legislation--and I think Mr. Chilton referred to this. 

It mentions anything that would affect the water. 

So if you were going to fertilize your land, that could require a 

404 permit, could it not? 

Mr. KRUSE. Yes, sir. I think you are exactly right. If you were 

going to spray a herbicide, that could conceivably require a permit. 

Mr. WESTMORELAND. And the Corps of Engineers, you know, I 

wish--it would have been very appropriate today, I think, to have 

somebody from the Corps on a separate panel or somebody from 

the EPA on a separate panel, so we could have questioned them 

about some of these things, because I would like to hear the Corps’ 

response to a question about, how long would it take them to review 404 permits for every farmer that wanted to fertilize his pasture, or wanted to spray some herbicide, or wanted to turn some 

soil over, or somebody might want to create a food plot for wildlife, 

or whatever. 

Those things would be involved in that process, if this legislation 

passed where the language said anything that affect water--and because, of course, the word ‘‘navigable’’ out of it, it would be any 

water, is that not true, Mr. Kruse? 

Mr. KRUSE. Yes, sir. That is exactly the way I see it. 

Mr. WESTMORELAND. Thank you. 

And, Mr. Chilton, I hate to keep coming back to you, but, you 

know, you talked about the lawsuits from the third party. Do you 

realize that your Federal Government funds a lot of those environmental groups that file suit against the government? 

Mr. CHILTON. That is correct. The Center for Biological Diversity, 

in 2003, received $900,000 from the Federal Government from 

suing the Federal Government. That is in their financial statements. 

In terms of your question on clean water, I am very proud to say 

that we hired a hydrologist from the University of New Mexico to 

come do a hydrological study on our ranch, and he found that we 

have so much grass and take such good care of our ranch that the 

natural erosion was far below what would be expected in a normal 

circumstance. 

We use no pesticides, we use no other products, except we have 

native grass. And so our water is clean, except sometimes there is 

a little mud in it. And it never goes anywhere. However, if I wanted to put insecticide on my farm, or if I wanted to fertilize the farm 

and I had to wait two years, what, 313 days for a nationwide permit, I mean, that is totally ridiculous. 

Chairwoman VELA ́ ZQUEZ. Time is expired. 

Mr. CHILTON. Thank you. 

Chairwoman VELA ́ ZQUEZ. Mr. Luetkemeyer. 

Mr. LUETKEMEYER. Thank you, Madam Chairman. 

It is interesting, I think we probably have more common sense 

on this panel today than we have in all of EPA and Fish and Wildlife put together. It is interesting to listen to your comments, and 

I certainly appreciate all of your efforts today. It was--it is great 

to listen to some common sense. It is really neat. 

29 

With regards to some of the Clean Water stuff, or some of the 

navigable stream stuff we are talking about, I think we are already 

there, gentlemen. I can give an example in my district. I have a 

gentleman who went out and tried to do a little something with a 

wet weather creek. In other words, in Missouri where I am from, 

you know, we have a lot of little ditches and what have you. And, 

you know, water is in it about, you know, 10 days out of the year, 

and the other 355 days a year it is dry. 

And so he tried to do something with it to clean it up, and he got fined $16,500 by the EPA. We are already there. In fact, we are 

already past that point, because now what is he going to do? As 

a result of this fine, he is not a wealthy man. How can he offset 

this? He has--we have got the full force of the government sitting 

here trying to sue him, and he has no ability to go back if he wants 

to fight it. And he could, because he has a legitimate suit. But he 

said, ‘‘I can’t afford this. I am going to settle the fine, if I can negotiate it down.’’ 

The practice of intimidation by the government is out there. It 

is there today and it is something that we have to stop, and this 

is one way to do it. So I appreciate your being here today. 

I think Mr. Chilton--I think Mr. Schock a while ago was trying 

to get to a point and trying to ask a question about the value of 

land. Can you give me an idea of all of the stuff that is going on 

with the Clean Water Act? How has that impacted the value of 

land in your area, or has it at all yet? 

Mr. CHILTON. My land is mainly grazing, except I have a 40-acre 

farm. And thank you for the question. Well, the Clean Water Act, 

as now interpreted by the local Tucson office, would be such that, 

if I were to try to sell my land, that would have to be a major disclosure item to the purchaser. 

And I do not know how much a purchaser would discount the 

fact that every bit of water, if this expansion of jurisdiction takes 

place, would be subject to the Clean Water Act in a 404 permit. I 

just can’t tell you exactly. 

Mr. LUETKEMEYER. Thank you. 

Mr. Kruse, want to try that one? 

Mr. KRUSE. Yes, sir. I think to some extent the main impact on 

land value so far has been, for example, where a tract of land that 

includes some wetlands on it has been sold, and also the whole 

thought of mitigation. I am aware, as I know you are, there are situations in our state where some people have been forced to mitigate five to one. 

In other words, they have got to provide five acres to one acre 

in a mitigation process. And so that obviously indirectly impacts 

land value. What would really impact land value is if the word 

‘‘navigable’’ is taken out and the way we treat prior converted cropland, which is being discussed, would be changed, because that is 

some 55 million acres of farmland that is prior converted. And that 

would dramatically have an impact on the value of the land. 

There are some who are saying that that ought to be clearly defined, as prior converted can only be used for agricultural purposes, 

and not for anything else. You can imagine what that would do to 

the value of the land. 

Mr. LUETKEMEYER. Thank you, Mr. Kruse. 

30 

I will yield back. Thank you, Madam Chairman. 

Chairwoman VELA ́ ZQUEZ. Mr. Graves, do you have any other 

questions? 

Mr. GRAVES. No. 

Chairwoman VELA ́ ZQUEZ. Mr. Thompson? 

Mr. THOMPSON. Thank you, Madam Chairman. Just one in terms 

of the complexities of this process. I would just throw this open to 

the whole panel. I mean, is this something--is this something you 

are able to--when you go through this permitting process, is this 

something the normal small business person or farmer is equipped 

to do? Or do you have to hire a consultant? Do you have to hire 

a lawyer? What is the complexities of this process? And what does 

that mean in expense? 

Mr. CHILTON. Well, for me, I had to hire an attorney and two 

consultants. And we had to do an archaeological study. And it cost 

about $40,000, and I threw up my hands and said, ‘‘I am sorry.’’ 

I did get the permit, but I just gave up on the project. As it--you 

cannot navigate the language and legalese of the Corps of Engineers’ permit process without professional help. 

Mr. THOMPSON. Has anyone else experienced-- 

Mr. SCHELLENBERG. It has been my experience it takes engineers, it takes surveyors to survey the grounds, you have got your 

biologists out there and different people looking at the plants and 

looking at things and trying to define the area of the wetland. So 

you have--and then, possibly you need an attorney to help you determine whether or not what the Corps is telling you is right or 

not. 

So it is not something a person could do on their own, in most 

cases. It is something that is very complex. You have to have people with knowledge in this area and people that specialize in this 

to get you through it. 

Thank you. 

Mr. PEBLEY. I would just echo Mr. Schellenberg’s comments. This 

is something that I would not attempt to do on my own. There are 

too many pitfalls and minefields to try and traverse. And I am not 

interested in having civil or criminal penalties put upon me for 

misunderstanding of the law. 

So no, we hire engineers and attorneys to handle this for us, and 

the cost is passed on to the customer. And in our case, most of the 

time the customer is a political subdivision. And so that cost is 

then passed on to the taxpayer of that political subdivision. 

So, I mean, everything has its consequences, and we charge for 

those consequences. And I think it could be a whole lot simpler if 

some of the panelists who have said, Congressmen have said some 

common sense reigned it would make a big difference for everybody. 

Mr. THOMPSON. So it is fair to say that these costs obviously are 

not also unnecessary, but frankly are just going to be crushing 

upon the businesses and the jobs that are sustained and created 

by those businesses. 

Mr. PEBLEY. Yes. 

Mr. THOMPSON. Thank you, gentlemen. Thanks for your testimony. 

I yield back. 

31 

Chairwoman VELA ́ ZQUEZ. Mr. Westmoreland. 

Mr. WESTMORELAND. Thank you, Madam Chair. 

Mr. Gray, I recently visited a dairy farm that--they milk cows 

from about 2:00 in the morning until about 10:00 in the morning, 

and then from about 2:00 to 10:00 at night. So it is an unbelievable 

thing, so the dairy farm guys have my heart in what they do. 

Mr. GRAY. Thank you. 

Mr. WESTMORELAND. But going there it was very interesting at 

the innovative things that they are doing. And right now we are 

in a spirit of green, I guess. And the fact that these farmers took 

the dairy cows, they basically wash down where they stand, this 

water runs into a pond, and it is stirred up. And then, this water 

is used to irrigate corn that is used for the silage to feed the cows. 

So it is kind of a cycle of life I guess that goes on. 

The difference is that this--the thing is bordered by the Flint 

River. And having gone and witnessed how careful they are to use 

all of their assets I guess to make farming as cheap as they can, 

and to make it really as simple as it can, I am afraid that if they 

would have had to get a 404 permit for anything that somebody 

having looked at this navigable water, or anything that affects 

water, would come out, because, as you understand and somebody 

mentioned, that even though we as Congress pass laws, we do not 

write the rules for these laws. 

These laws are written by different agencies, and they may come 

up with some different interpretations of what the legislative intent was. Is this normal, that dairy farmers do this type of thing? 

And, Mr. Chilton, I will let you answer as far as ranchers go also. 

Mr. GRAY. Well, that is a good question, Congressman. As a matter of fact, I should have mentioned this in my testimony and in 

previous questions. And that hits on the issue, though, of handling 

manure from dairy cows. For example, a 1,500-cow Holstein will 

produce 75 pounds of manure a day. So in a sense-- 

Mr. WESTMORELAND. And how much water does-- 

Mr. GRAY. Well, that includes the water--that includes the--both 

the manure--the solid and the water. 

Mr. WESTMORELAND. But how much water one of those cattle a 

day drink? 

Mr. GRAY. Well, she will drink--well, she is given 100 pounds. 

She will drink, oh God, I don’t know how many gallons, 200 or 300 

gallons of water. I mean, they drink a lot. They consume a lot, they 

really do. But what we are lacking, and we are struggling with in 

the dairy business, because we have our cows confined to some degree--I mean, it depends on the herd--is the kind of manure handling, nutrient management practices that we can put on farms, as 

you were discussing and mentioning, that will handle manure so 

we have as little nutrient loss as possible. We are trying to eliminate that. 

But I can tell you we don’t have the range of technologies available to a dairy farmer who is 80 cows to one that is 1,000 cows that 

will work for everybody. Anaerobic digesters can be effective, but 

they are very costly. Our farmers are looking for these solutions. 

USDA, by the way, just did a report on animal manure and found 

that--I think it says between five and 10 percent of our renewable 

32 

energy could be created by using manure, so that would take that 

cycle, as you were discussing, one step further. 

So I think we need to do that, but we need some help in doing 

that. We don’t need more litigation. That is what we are trying to 

avoid. We want to do this, but we are going to need some help. 

Mr. WESTMORELAND. One further question for you. Have you 

ever had anybody from Department of Agriculture, EPA, Corps of 

Engineers, come out to any of the farms that you know of and ask 

you how they could help you? I know that is a funny question. I 

apologize for that. 

Mr. GRAY. Yes, I am not sure they have asked how they could 

help, but I know some of our farms have had Corps and EPA people come out asking questions and looking at certain parts of their 

farms regarding wetlands, and so forth. Yes. I mean, that has happened a lot. 

Mr. WESTMORELAND. Can I continue? 

Chairwoman VELA ́ ZQUEZ. Okay. Is it your intention--do you need 

five more minutes, or are you going to continue questioning witnesses five minutes each? 

Mr. WESTMORELAND. I probably have about five minutes more of 

questions. 

Chairwoman VELA ́ ZQUEZ. The gentleman can proceed. 

Mr. WESTMORELAND. Thank you. 

The reason I ask that is we had another hearing in this Committee, a Subcommittee hearing, that we had a lady from the EPA 

here that has been at the EPA for 29 years. She has been in charge 

of this department for 14 years that deals with the biofuels and 

feedstock, and so forth and so on. The reason I ask that, I had 

asked her in her 29 years with the EPA, because we had farmers 

and forestry people testify that these rules and regulations that 

they were coming up with was killing them, and the biofuel people. 

And I asked her how many farms she had visited in 29 years to 

see some of these problems they had discussed, and she mentioned 

none. So I didn’t know if any of these people writing the rules and 

regulations they have visited dairy farms, or if they just think milk 

comes from the grocery store. 

Let me go--Mr. Schellenberg, it was mentioned about shovelready projects. I know that when the stimulus package came out 

my commissioner--Department of Transportation and a group of 

other--I think in fact all of the DOT commissioners may have gotten together and sent a letter to the EPA, because a lot of these 

projects were shovel-ready, except the permit--the environmental 

study maybe that came. 

And so they asked the EPA if they would expedite the environmental studies or applications, so these shovel-ready projects could 

get on board. As far as the underground utility contractors, have 

you experienced any of that in any work that you all may see in 

the backlog, or in the background that is ready to come forward? 

Mr. SCHELLENBERG. I haven’t seen that in--coming from Oregon, 

I haven’t seen any expedited permits that I am aware of. 

Mr. WESTMORELAND. No, there is--no, trust me, there hasn’t been 

any. But I am saying, had there been, would there not have been 

some more shovel-ready projects that would have been ready to go? 

33 

Mr. SCHELLENBERG. Oh, certainly. There is a lot of projects that 

were ready. I discussed--had a meeting a week ago with the public 

works director of Salem, and we discussed this very issue that they 

had projects. If they could have had the permits in hand, they 

could have done other projects. But this is hampering them getting 

these projects out. 

Mr. WESTMORELAND. Mr. Schellenberg, I know that--and I am 

very familiar with underground utility contracting work coming 

from a building background. I know that on occasion that when you 

are doing tunneling and other things, if you are in the midst of 

doing it and a rainstorm comes up, or whatever, some of these 

ditches fill up with water. 

And whether you are doing highway construction or boring under 

a road, or just putting in a water line, sewer, or whatever, that 

these ditches fill up with water, an incredible amount of water, at 

some points in time, just depending on the elevation. 

If ‘‘navigable’’ was taken out of the Clean Water Act, would you 

feel, or do you think any of your members would feel, it necessary 

to get a permit to do something with the water that was retained 

in these ditches, ponds, work areas, before you could do anything 

to get rid of it? 

Mr. PEBLEY. If ‘‘navigable’’ is removed, I think we are going to 

be told by the EPA and the Corps that we are going to need to get 

permits before we can proceed with this type of work. I fully expect 

that to happen. 

Mr. WESTMORELAND. And, Mr. Pebley, let me ask you that same 

question coming from the Association of General Contractors, large 

commercial jobs where you do large excavation, such as, you know, 

digging down three and four stories to put in footings or foundation 

for some of these large structures. Would you think the same thing, 

that if you were in one of those situations, large rainfall, snow 

melt, or whatever, that you would be put into a situation of dealing 

with that water, because it is going to affect something if you are 

in a city, of having to get a 404 permit? 

Mr. PEBLEY. Yes. I think if the word ‘‘navigable’’ is taken out and 

replaced with ‘‘all,’’ yes, sir, I think it is pretty clear all waters, 

whether it is rainfall or drought, or that is now in a hole so it is 

part of groundwater, or if it seeps in while you are doing your 

work, yes, sir, I think you would have to get a 404, and then you 

are opening up to a whole host of problems, because now you have 

an open hole that is an attractive nuisance. 

And if somebody--if a child falls in that hole because you can’t 

fill it up because there is water in it, and you are waiting on your 

404 permit, then you are open to a lawsuit from a third party, because you have an attractive nuisance and a child fell in the hole, 

even if you have, you know, completely fenced it off. 

So it is a very tenuous slippery slope, as has been discussed earlier. And I don’t see any up side to it, sir. 

Mr. WESTMORELAND. Well, then you would be able to deal with 

OSHA for protecting the hole. 

Mr. PEBLEY. Yes, sir. 

Mr. WESTMORELAND. One final question, Madam Chair, if I 

could. 

34 

Chairwoman VELA ́ ZQUEZ. Time is expired, and I have given you 

enough time out of my time, and Mr. Graves’. 

Mr. WESTMORELAND. Okay. Well, you have been mighty nice, 

Madam Chair. I was-- 

Chairwoman VELA ́ ZQUEZ. The understanding that the Ranking 

Member and I have is-- 

Mr. WESTMORELAND. I understand. 

Chairwoman VELA ́ ZQUEZ. --in consultation to provide five minutes. And I have been quite-- 

Mr. WESTMORELAND. Well, this is something that we will discuss 

at a later time. I will yield to your authority on that, and then we 

will take it up with the Speaker’s office-- 

Chairwoman VELA ́ ZQUEZ. Thank you. 

Mr. WESTMORELAND. --or whoever. Thank you, ma’am. 

Chairwoman VELA ́ ZQUEZ. Thank you. 

Gentlemen, thank you all for coming here today. I believe this is 

a very important issue, very complex, and I am happy--I will ask 

you, have you ever been invited to this Committee since we passed 

the Clean Water Act? Small Business Committee have ever conducted a hearing dealing with this issue? 

Mr. SCHELLENBERG. Not that I am aware of. 

Mr. GRAVES. Not that I am aware of either. 

Mr. CHILTON. I have not, and I thank you very much for having 

the hearing. 

Chairwoman VELA ́ ZQUEZ. I am glad that it takes a Democrat to 

invite you to come over and discuss this issue. 

Mr. CHILTON. We really appreciate it. 

Chairwoman VELA ́ ZQUEZ. Because we understand the unintended 

consequences that regulations and legislation will have and might 

have on the work that small businesses are doing in this country. 

So it has been my intention to bring rural America and urban 

America closer, so that is why this Committee has held so many 

hearings with farmers, and we injected ourselves into the discussion of the farm bill. So I am very happy about that. 

I ask unanimous consent that members will have five days to 

submit a statement and supporting materials for the record. Without objection, so ordered. 

This hearing is now adjourned. Thank you. 

[Whereupon, at 3:01 p.m., the Committee was adjourned.] 

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