[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
THE FUTURE OF WOTUS:
EXAMINING THE ROLE OF STATES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 29, 2017
__________
Serial No. 115-39
__________
Printed for the use of the Committee on Science, Space, and Technology
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://science.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
27-678 PDF WASHINGTON : 2018
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma EDDIE BERNICE JOHNSON, Texas
DANA ROHRABACHER, California ZOE LOFGREN, California
MO BROOKS, Alabama DANIEL LIPINSKI, Illinois
RANDY HULTGREN, Illinois SUZANNE BONAMICI, Oregon
BILL POSEY, Florida AMI BERA, California
THOMAS MASSIE, Kentucky ELIZABETH H. ESTY, Connecticut
JIM BRIDENSTINE, Oklahoma MARC A. VEASEY, Texas
RANDY K. WEBER, Texas DONALD S. BEYER, JR., Virginia
STEPHEN KNIGHT, California JACKY ROSEN, Nevada
BRIAN BABIN, Texas JERRY McNERNEY, California
BARBARA COMSTOCK, Virginia ED PERLMUTTER, Colorado
BARRY LOUDERMILK, Georgia PAUL TONKO, New York
RALPH LEE ABRAHAM, Louisiana BILL FOSTER, Illinois
DRAIN LaHOOD, Illinois MARK TAKANO, California
DANIEL WEBSTER, Florida COLLEEN HANABUSA, Hawaii
JIM BANKS, Indiana CHARLIE CRIST, Florida
ANDY BIGGS, Arizona
ROGER W. MARSHALL, Kansas
NEAL P. DUNN, Florida
CLAY HIGGINS, Louisiana
RALPH NORMAN, South Carolina
------
Subcommittee on Environment
HON. ANDY BIGGS, Arizona, Chair
DANA ROHRABACHER, California SUZANNE BONAMICI, Oregon, Ranking
BILL POSEY, Florida Member
MO BROOKS, Alabama COLLEEN HANABUSA, Hawaii
RANDY K. WEBER, Texas CHARLIE CRIST, Florida
BRIAN BABIN, Texas EDDIE BERNICE JOHNSON, Texas
BARRY LOUDERMILK, Georgia
JIM BANKS, Indiana
CLAY HIGGINS, Louisiana
RALPH NORMAN, South Carolina
LAMAR S. SMITH, Texas
C O N T E N T S
November 29, 2017
Page
Witness List..................................................... 2
Hearing Charter.................................................. 3
Opening Statements
Statement by Representative Andy Biggs, Chairman, Subcommittee on
Environment, Committee on Science, Space, and Technology, U.S.
House of Representatives....................................... 4
Written Statement............................................ 5
Statement by Representative Suzanne Bonamic, Ranking Member,
Subcommittee on Environment, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 7
Written Statement............................................ 9
Witnesses:
Mr. Wesley Mehl, Deputy Commissioner, Arizona State Land
Department
Oral Statement............................................... 11
Written Statement............................................ 14
Mr. James K. Chilton Jr., Rancher, Chilton Ranch
Oral Statement............................................... 30
Written Statement............................................ 32
Mr. Ken Kopocis, Adjunct Associate Professor, American University
Washington College of Law
Oral Statement............................................... 41
Written Statement............................................ 43
Mr. Reed Hopper, Senior Attorney, Pacific Legal Foundation
Oral Statement............................................... 56
Written Statement............................................ 58
Discussion....................................................... 77
Appendix I: Answers to Post-Hearing Questions
Mr. Ken Kopocis, Adjunct Associate Professor, American University
Washington College of Law...................................... 100
Appendix II: Additional Material for the Record
Statement submitted by Representative Eddie Bernice Johnson,
Ranking Member, Committee on Science, Space, and Technology,
U.S. House of Representatives.................................. 104
Documents submitted by Representative Colleen Hanabusa, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 106
Letter submitted by Representative Mark Takano, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 120
Documents submitted by Representative Paul Tonko, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 123
Letter submitted by Representative Andy Biggs, Chairman,
Subcommittee on Environment, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 148
Documents submitted by Representative Suzanne Bonamic, Ranking
Member, Subcommittee on Environment, Committee on Science,
Space, and Technology, U.S. House of Representatives........... 151
THE FUTURE OF WOTUS:
EXAMINING THE ROLE OF STATES
----------
Wednesday, November 29, 2017
House of Representatives,
Subcommittee on Environment
Committee on Science, Space, and Technology,
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:22 a.m., in
Room 2318 of the Rayburn House Office Building, Hon. Andy Biggs
[Chairman of the Subcommittee] presiding.
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Chairman Biggs. Good morning. The Subcommittee on
Environment will come to order.
Without objection, the Chair is authorized to declare
recesses of the Subcommittee at any time.
Welcome to today's hearing entitled ``The Future of WOTUS:
Examining the Role of States.''
And I thank all of our witnesses who are here. We're glad
to have all of you here and Members of the Committee. I
recognize myself for five minutes for an opening statement.
Welcome to today's hearing, ``The Future of WOTUS:
Examining the Role of States.'' I thank our expert panel of
witnesses for being here today and agreeing to testify about
this important topic.
The Waters of the United States rule, or WOTUS, issued by
the EPA in 2015, amounted to one of the biggest federal
overreaches in modern history. Not only did the rule's flimsy
definitions and underlying science mean that the Agency had the
ability to regulate private land, but it also placed
significant financial burdens on some of our country's hardest
workers.
I am very pleased to have representatives here today from
my home State of Arizona to discuss how this rule would affect
them and what changes they believe would make water regulations
better for this country.
We all want to be good stewards of the environment. We also
want to be good stewards for the people we are here in
Washington to represent. When a federal agency overlooks the
needs of American citizens, we in Congress have a duty to ask
questions and address the concerns of our constituents. For
example, when WOTUS was proposed, there was a large outcry from
stakeholders across the Nation that the rule's vague
definitions regarding navigable water could include sometimes
dry drainage ditches on private farmland. It's absurd to
consider a dry ditch ``navigable.'' Our Nation depends on the
hard work of farmers and ranchers. These men and women simply
don't have the time to deal with bureaucratic nonsense. Of
course, it's not just them who suffer. Costly and unnecessary
government mandates have drastic economic impacts on each and
every one of us.
The shortcomings of WOTUS are so self-evident that it's not
surprising this onerous rule has been challenged across the
country. And now we can point to a very encouraging action from
the new Administration. President Trump recently issued an
executive order directing EPA and the Army Corps of Engineers
to review the WOTUS rule. I applaud the Administration for
heeding the calls of Americans. A revision to the 2015 rule is
desperately needed to provide greater clarity to States and
stakeholders. Instead of rushing forward with burdensome
federal regulations, the government needs to do its due
diligence and propose a rule that is helpful, not harmful.
Today, we will hear ideas about how some of those fixes to
the regulation should look. Witnesses will inform Congress how
federal water regulations affect them and what they need from
the government to continue operating effectively. I look
forward to a knowledgeable and substantive discussion.
[The prepared statement of Chairman Biggs follows:]
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Chairman Biggs. And I ask for unanimous consent to enter
the comments of the American Road and Transportation Builders
Association to the EPA regarding the regional WOTUS rule.
[The information appears in Appendix II.]
Chairman Biggs. With that, I yield back and recognize the
Ranking Member, Ms. Bonamici of Oregon, for her opening
statement.
Ms. Bonamici. Thank you, Mr. Chairman.
From Oregon's Willamette Valley to the Chesapeake Bay,
Americans want the Waters of the United States to be
safeguarded from harmful pollutants. They want this protection
because our national ecosystem is interconnected, and what
happens upstream is going to influence what happens downstream,
especially to drinking water. Clean water is essential for our
survival, and humanity has been dealing with issues related to
access to clean water since the dawn of civilization.
The needs of individual States are far more similar than
they are different. The Clean Water Act exists in part because
there was a time when states had primary responsibility for
keeping waters within their State clean and safe.
Unfortunately, many of those States were not able to meet that
responsibility, and Americans watched as some of those waters
became dirty and polluted and others caught on fire.
Back in 1972, amendments to the Clean Water Act redefined
the waters covered under the act to include the Waters of the
United States, including the territorial seas, but Court
opinions addressing which bodies of water fit that definition
have been inconsistent. The genesis of the Clean Water Rule
comes from the 2006 U.S. Supreme Court case Rapanos v. United
States in which the Court did not reach a majority decision
about what constitutes a water of the United States, and the
result of that decision was confusion. The purpose of the rule
is to minimize confusion by clarifying the jurisdiction of the
Clean Water Act.
After the Rapanos case but prior to the rule, the EPA
released a report titled ``Connectivity of Streams and Wetlands
to Downstream Waters: A Review and Synthesis of the Scientific
Evidence.'' Mr. Chairman, I ask for unanimous consent to enter
the executive summary of this report into the record.
The report reviewed more than 1,200 publications from peer-
reviewed scientific literature, and the report itself went
through two separate independent peer reviews. The report drew
five major conclusions, which provided initial support for the
Clean Water Rule. One conclusion was the scientific literature
unequivocally demonstrates that streams individually or
cumulatively exert a strong influence on the integrity of
downstream waters, all tributaries, streams, including
perennial, intermittent, and ephemeral streams are physically,
chemically, and biologically connected to downstream rivers.
As Mr. Kopocis explains in his testimony, before the Waters
of the United States rule was finalized in May of 2015 the EPA
received and considered more than 1 million public comments and
held more than 400 public meetings. And though some suggest
that despite past performance, States rather than Environmental
Protection agencies should conserve America's waterways,
watersheds, rivers, lakes, and streams, in response to such a
suggestion in the Rapanos case, former Supreme Court Justice
John Paul Stevens said, quote, ``The fact that the States have
the power and the interest does not necessarily mean that the
Federal Government does not also have the power.''
Now, I don't want to return to a time when our waters were
dirty, polluted, and even caught on fire, and I know our
constituents don't want that either. It is for that very reason
that we also need to hear not just from witnesses here today
but also from representatives who are currently at the
Environmental Protection Agency. This committee must meet its
oversight responsibility and question the EPA about this issue
and other issues--actions they are taking. The quality of the
air we breathe and the water we drink is too important. This
committee has a responsibility to keep the EPA accountable to
the American people.
Mr. Chairman, I ask for unanimous consent to enter into the
record a letter signed by Members of the Science Committee
requesting that Chairman Smith invite Administrator Pruitt to
testify before our Committee as soon as possible, and in
addition, I would like to enter into the record Chairman
Smith's response to the request, stating that a hearing request
is underway. We appreciate that.
I urge Chairman Smith, Chairman Biggs, and the EPA to
schedule this hearing quickly. The American people have an
ownership stake in their environment, and they deserve to know
what the EPA and Administrator's plans are--Administrator
Pruitt's plans are for the EPA.
Thank you, Mr. Chairman, and without objection, I'd like to
enter the letter and the report--executive summary into the
record.
Chairman Biggs. Without objection.
[The information appears in Appendix II.]
Ms. Bonamici. Thank you, and I yield back the balance of my
time.
[The prepared statement of Ms. Bonamici follows:]
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Chairman Biggs. I want to introduce our witnesses, and so
let's do that right now. Our first witness today is Mr. Wesley
Mehl, Deputy Commissioner of the Arizona State Land Department.
Mr. Mehl received his bachelor's degree in political science
from the University of Arizona and his law degree from
Pepperdine University. He also received an LLM in real property
law from the University of Miami. Glad to have you today.
Our next witness is Mr. James Chilton, Jr., of Chilton
Ranch. Mr. Chilton is a fifth-generation rancher and has
received multiple awards, such as Rancher of the Year in 2002.
He received his bachelor's degree as well as master's degrees
in economics and political science from Arizona State
University. Thank you, Mr. Chilton.
Our third witness is Mr. Ken Kopocis, Adjunct Associate
Professor at American University's Washington College of Law.
Mr. Kopocis previously served as the Deputy Assistant
Administrator in the Office of Water at the U.S. Environmental
Protection Agency. He received his bachelor's degree from the
University of Nebraska Omaha and his law degree from the
Marshall-Wythe School of Law of the College of William and
Mary. Thank you, Mr. Kopocis.
And our last witness is Mr. Reed Hopper, Senior Attorney at
the Pacific Legal Foundation. Mr. Hopper previously served as
an Environmental Protection Officer and Hearing Officer in the
U.S. Coast Guard. He received his bachelor's degree from the
University of California and his law degree from the University
of the Pacific McGeorge School of Law.
I now recognize Mr. Mehl for five minutes to present his
testimony. And I'll just remind all of you to be sure to turn
on your microphone when you want to start. Thank you.
TESTIMONY OF MR. WESLEY MEHL,
DEPUTY COMMISSIONER,
ARIZONA STATE LAND DEPARTMENT
Mr. Mehl. Thank you, Mr. Chairman. Mr. Chairman and members
of the committee, thank you for the opportunity to testify on
behalf of the Arizona State Land Department. I am the Deputy
Commissioner of the department. In 1915, the State formed the
land department to manage 9.2 million acres of land that was
given to us by the Federal Government to be held in trust for
support of our public beneficiaries. Chiefly, this is our K-12
education system.
The mandate of the department is to produce optimal revenue
for our trust beneficiaries. To do this, we sell land; we lease
land. There are 13 beneficiaries.
If we could go to the next slide.
[Slide.]
So we have 9.2 million acres of trust land. You can see
trust land identified on this map as blue. We're spread
throughout the State. Together, it's 1.6 times larger than
Maricopa County, which is the largest county in Arizona.
The next slide, please.
[Slide.]
We have 13 beneficiaries. As I said, the largest
beneficiary is our K through 12 education system. We also have
beneficiaries of our State universities.
Next slide, please.
[Slide.]
This map represents the transactions we have done
historically. These are sales and leases. We lease for mineral,
agriculture, and grazing purposes and we sell. This revenue
supports our trust beneficiaries.
Next slide, please.
[Slide.]
As part of this mission, I'm here to discuss our experience
in navigating section 404 of the Clean Water Act. And I think
our frustrations with the rule can best be illustrated with an
experience that we've had in permitting actions in an area of
north Phoenix in an urban area, particularly a subdivision,
master-planned community called Desert Ridge. In 1993, we sold
land to a developer who master-planned this area, and it's an
area bordered by freeways, so the 101 freeway and the 51
freeway are an apex, and you can see that on this map.
When the project was started, the first four or five
subdivisions and developments were permitted under the EPA--or
the Army Corps' nationwide 404 permit, so each of these was
allowed to proceed with--based on this recognition that minimal
impacts were made to Waters of the United States.
However, soon thereafter in the early 2000s the Corps came
to the Land Department and said, ``No longer are we going to
allow development in this manner but, instead, we are going to
require an individual permit for the entire master plan area of
Desert Ridge.''
You go to the next slide, please.
[Slide.]
So our first challenge with the rule has been the ambiguity
with respect to what a project is under 404. So the Land
Department doesn't build anything and when--we rely on people
we sell to to develop roadways, utility corridors, or
commercial development. When we had to step in and get our
permit, there were a number of challenges, and I'll talk
through those.
The first challenge is determining jurisdiction.
Regulations for 404 have been ambiguous for a number of years.
In the early 2000s, the premise we received were based on some
hydrology and it's represented here. The picture on the left
shows the jurisdictional delineations of 404 washes in this
area. And you can see they form a web-like construct along the
entirety of the property. The problem here for us is there
really isn't water present in this area. These are all channels
that transport stormwater drainage, so it falls in the
mountains and comes through this area, but these are not
streams. They are simply temporary runs of stormwater.
When you have a jurisdictional delineation, you translate
that into permit with onsite mitigation. The picture on the
right shows mitigation corridors in hatch blue. The major
problem for the department has been developing under these
onsite mitigation corridors. Desert Ridge is some of our most
valuable land. It's situated at the apex of these two freeways.
To continue selling, we have to be able to sell with affordable
infrastructure. The connections between the corridors make
infrastructure much more difficult.
When Commissioner Atkins and I arrived----
Chairman Biggs. Mr. Mehl, your five minutes has expired. If
you can just real quickly sum up, and then we'll put your
statement into the record.
Mr. Mehl. Yes, I apologize.
In sum, the rule makes it hard to define jurisdiction. The
washes in this area are--have no connection to downstream
traditional waterways, and that's demonstrated in a 2017 study
that we just commissioned. A move toward the Administration's
executive order using Justice Scalia's Rapanos rationale on the
404 rule would be beneficial to the Corps, to the regulated
community, and to the State of Arizona. Thank you.
[The prepared statement of Mr. Mehl follows:]
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Chairman Biggs. Thank you, Mr. Mehl.
Mr. Chilton.
TESTIMONY OF MR. JAMES K. CHILTON JR.,
RANCHER, CHILTON RANCH
Mr. Chilton. Chairman Biggs and distinguished Committee
Members, thank you for having me today. My name is Jim Chilton,
and I'm a fifth-generation Arizona rancher. Our ranch is
adjacent to the town of Arivaca and continues south to the
international boundary with Mexico. We've been in the cattle
business in Arizona for 127 years. Our family all came from
Texas, so I'm happy to see Texans here.
We are thankful for the 2015 Waters of the United States
rule that has been proposed to be withdrawn. Our experience
convinces us that it was an unjustifiable overreach by the
Environmental Protection Agency and the Corps of Engineers. It
represented a federal power grab not supported by the Clean
Water Act or the Constitution.
For ranches in the Western United States, a requirement to
obtain a Corps of Engineers section 404 permit or other permit
is time-consuming and very expensive. The map on the monitor
shows Arizona, and the red X is where I wanted to put a road
across a dry wash. The dark line leading north marks the end of
the Brawley Wash with no connection to the Santa Cruz River,
and the end of the dry Santa Cruz River that has no connection
to a navigable river. The dark line on the left represents the
lower Gila River. These are all dry riverbeds, not streams of
flowing water.
In the 1990s, I had to retain consultants and an attorney
in an effort to comply with the requirements of Section 404 to
put a small dirt road across a dry wash. That wash only carries
water briefly during occasional rainstorms. It connects with
the Brawley Wash about 10 miles west of my proposed road
crossing. The dry Brawley Wash spreads out into the desert 70
miles north from the wash where I needed a ranch road. The wash
is not even connected to the Santa Cruz River. The dry Santa
Cruz riverbed vanishes as it spreads out like fingers in the
desert 68 miles south of the usually dry Gila River. The Gila
River extends another 100 miles or so across the desert to the
Colorado River, which is the closest year-round navigable
water. And it's 265 miles from the spot where I wanted to cross
the dry wash. It is laughable to think that a desert wash is
navigable in any way.
My second experience was before the Supreme Court decision
on Rapanos. I wanted to improve a small dirt road on my private
property and place a culvert in the bottom of a wash on that
road. You'll see on the monitor the wash and you'll see how
steep it was. I used to have to drive down into the wash and up
over it on my private land. However, I was told by my
environmental consultant, I paid good money for that, it was a
water of the United States. Well, excitedly, I read the Rapanos
decision several years later after I had abandoned the dry wash
road. I decided it's easier to drive down and up than hire
attorneys and consultants to go through the section 404
process.
However, I abandoned the project, and after reading
Rapanos, I said, ''Ah, it doesn't have a significant impact to
the Colorado River 265 miles away,'' so I put in this bridge.
Well, I might go to jail now if I did it again.
In conclusion, the 2015 rule would allow the EPA and the
Corps to trump States' rights to manage intrastate waterways
and even dry washes. Any future rule should recognize the
authority of State and local governments to make land use and
water decisions. It is our position that the intrastate rivers
such as the Santa Cruz in southern Arizona should be regulated
by the State and counties, not the federal government. Any new
WOTUS rule should minimize adverse impacts on farmers and
ranchers and other small businesses, and it must be designed to
reduce the potential for abuse through bureaucrats sitting
around and expanding the interpretation.
Please refer to my written testimony for precise
recommendations of the National Cattlemen's Beef Association
and the Public Lands Council. Thank you, Mr. Chairman.
[The prepared statement of Mr. Chilton follows:]
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Chairman Biggs. Thank you, Mr. Chilton.
Mr. Kopocis.
TESTIMONY OF MR. KEN KOPOCIS,
ADJUNCT ASSOCIATE PROFESSOR,
AMERICAN UNIVERSITY
WASHINGTON COLLEGE OF LAW
Mr. Kopocis. Thank you. Chairman Biggs, Ranking Member
Bonamici, and other Members of the Subcommittee, thank you for
the request to appear today to discuss the future for
protecting water quality under the Clean Water Act and the role
of the States. I appear today in my personal capacity.
In 1972, Congress enacted the Clean Water Act to restore
and maintain the integrity of the nation's waters. If a water
subject to the act is not going to be polluted or destroyed, it
does not come under the authority of the Clean Water Act.
Congress has also created significant roles for the States
in the implementation of the Clean Water Act, often referred to
as cooperative federalism. The Trump EPA has put forward a
false choice that providing protection against polluting and
destroying waterbodies somehow is adverse to states' interests.
Today, most of the day-to-day activities for implementing the
Clean Water Act are carried out by the states. States decide
how clean their waters will be, not EPA, plus a significant
number of States have not challenged the Clean Water Rule, and
their interests are adversely affected by the proposed
rollback. Further reducing the scope of the Clean Water Act
will only reduce State efforts to protect waters from pollution
and destruction by eliminating their federal partner.
The Trump Administration is pursuing a policy of repeal and
retreat, repeal the Clean Water Rule and retreat to
jurisdiction based on the excessively narrow plurality opinion
in Rapanos. But that opinion was expressly rejected by five of
the nine Justices of the Court. A Scalia-based rule is
guaranteed to continue the post-Rapanos confusion and
litigation for many, many years to come, and it is not likely
to withstand judicial challenge.
A Scalia-based rule also has adverse practical effects for
protecting state waters from pollution and destruction.
Eliminating the protection for intermittent and ephemeral
streams will remove Clean Water Act protection for as much a 60
percent of the Nation's waters, and in some areas this could be
80 to 90 percent. These waters would no longer be protected by
water quality standards; no Clean Water Act permits would be
required for discharges of pollutants; funding to address
municipal wastewater, stormwater, and nonpoint source pollution
would be less available; and federal authority to respond to
oil spills would be curtailed.
While some argue that States can and will fill this void,
since the scope of the Clean Water Act was limited in 2001 and
2006, there is no evidence that any State has done so. The act
refers to navigable waters, which Congress defined as Waters of
the United States, including the territorial seas. The Supreme
Court has considered this definition three times, and in each
case, every Justice has agreed that the term ``navigable
waters'' applies to waters beyond those considered to be
traditionally navigable. This debate should be over.
Although neither SWANCC nor Rapanos invalidated the
Agency's regulations, the EPA and the Corps spent several years
developing the Clean Water Rule in response to demands of
interested parties across the entire interested spectrum, yet
the Trump Administration's current plans for repeal and retreat
will bring back the confusion and litigation everyone said they
wanted to end.
The agencies developed a rule based upon Justice Kennedy's
significant nexus test, a test that would have the support of
five of the nine Justices on the Court, unlike the Scalia
standard, which only had four. The rule is supported and
informed by the best available peer-reviewed science on the
relationship of waters and the impacts of upstream waters on
downstream and adjacent waters. The validity and credibility of
the science used by the agencies to support the Clean Water
Rule has not been seriously denied or refuted. If there is
better science, then bring it to the attention of the public
and the agencies for their consideration.
The rule establishes which waters will be jurisdictional in
which circumstances and expanded the list of waters that would
not be subject to jurisdiction. People would for the first time
be able to read the rule and better know that a waterbody or
feature was or was not subject to the act and--without the need
for an expert or an individual analysis. The rule also
establishes transparency in how the agencies will make
significant nexus determinations instead of leaving those
decisions within the discretion of an agency employee. For
greater detail, I attached the rule to my testimony.
The Clean Water Rule is a carefully considered rule that
was developed with unprecedented public engagement and comment.
It was available for public comment for 207 days. During that
period, EPA held over 400 public meetings, and I personally
attended about 70 of those in my prior capacity, including
multiple visits to farms. Unfortunately, the rule's benefits of
clarity, predictability, and consistency have been put on hold,
but that will be resolved. The Trump Administration does a
disservice to the public with its path of repeal and retreat.
It will only continue the post-Rapanos confusion and litigation
for many, many years.
The work of the Clean Water Act is far from finished.
State-generated water quality reports indicate hundreds of
impaired waters in need of reduced pollution and increased
protection. Narrowing the scope of the act does not advance
these joint state and federal efforts. No one ever says that
the water in our rivers, lakes, streams, and ponds is too
clean, there are too many healthy fish to catch and eat, or
that drinking water is too clean and abundant. The Trump policy
of repeal and retreat only imperils the integrity of our
nation's waters.
Thank you, and I'm happy to answer any questions you may
have.
[The prepared statement of Mr. Kopocis follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Biggs. Thank you, Mr. Kopocis.
Mr. Hopper.
TESTIMONY OF MR. REED HOPPER,
SENIOR ATTORNEY,
PACIFIC LEGAL FOUNDATION
Mr. Hopper. Thank you, Chairman Biggs, and honorable
Committee Members, for this opportunity. I'd like to address
three particular questions. The first is why is it important to
be precise in identifying the Waters of the United States? The
simple answer is that the designation of Waters of the United
States affects millions of property owners nationwide, and the
impact on these property owners is quite severe. When an area
is designated as subject to the Clean Water Act, it essentially
gives the Federal Government complete control over that
property, allowing it to exercise a veto power over the land
use.
It also leaves the landowner in a no-win situation. The
landowner who has designated property really only has a few
options. They could simply abandon all use of the property at
ruinous cost; they could get a permit, which has been estimated
to cost, for an individual permit, $270,000 and 800 days in
processing; or they can simply go forward without federal
approval and risk civil fines of $75,000 a day and/or criminal
prosecution. In addition, if the designation of the scope of
the Clean Water Act is not properly drawn, it raises
constitutional questions related to due process, impingement on
State rights, and exceedance of the commerce power.
The second question is, is the revision of the 2015 WOTUS
rule justified? Again, the short answer is yes. Two courts have
already determined on a preliminary basis that, on its face,
the 2015 WOTUS rule is probably invalid because it is likely
overbroad in that it overextends or exaggerates the significant
nexus test under Rapanos and is incompatible with the SWANCC
decision, which prohibited regulation of isolated waterbodies.
Also, the distance limitations the Court has held are likely
arbitrary and not supported by scientific evidence.
In addition, the final rule doesn't look like the proposed
rule, which denied the public proper notice and opportunity for
comment. More importantly, these courts held that in order to
protect the States' primary responsibility to regulate local
land and water use and to avoid the diminishment of state
sovereignty, that the rule needed to be stayed not only locally
but nationwide. And one of the courts also stated that in order
to protect the public from overreaching government, the rule
needed to be enjoined.
Another reason why it's appropriate to revise the rule is
as I outlined in my law review article called ``Running Down
the Controlling Opinion in Rapanos v. United States,'' all nine
Justices--not five or four, but all nine Justices would agree
that when you use the Scalia plurality test and find
jurisdiction, Justice Kennedy would agree and the four in the
dissent would agree so all nine Justices would concur. These
factors not only justify but necessitate pushing the reset
button on the WOTUS rule.
Finally, the third question I would address is where do we
go from here? I think the real problem is not so much the
language we're dealing with but with the inability or
unwillingness of the Agency to show some constraint. The EPA
and the Corps of Engineers need to focus on protecting core
water resources instead of pushing the envelope on federal
power by prosecuting minor or imaginary infractions such as
digging a ditch; creating a stock pond, as in our Johnson case;
plowing farmland, as in our Duarte case; building a house in a
built-out subdivision, as in our Sackett case; or asserting
jurisdiction over isolated waterbodies, as in our Hawkes case.
Justice Roberts took the Corps of Engineers and the EPA to
task in the Rapanos decision for not heeding the direction of
the Supreme Court in the SWANCC case and said that the agencies
continued to rely on a boundless interpretation of the act
which is not justified.
So what do we do? How do we constrain the agencies? There
are two possibilities. One is a legislative fix. This would be
more appropriate because it would clarify congressional intent
and is more defensible legally. The other one is a regulatory
fix with specific language more constrained than the WOTUS rule
relying on the Scalia plurality. And for specifics on a
proposal, I refer you to my written testimony, page 15. Thank
you very much.
[The prepared statement of Mr. Hopper follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Biggs. Thank you, Mr. Hopper. I now recognize
myself for my five minutes of questions.
Mr. Mehl, since the rule has been stayed, you have a chance
now to voice your concerns and discuss a mutual path forward
for water regulations. The question is, do you think water
regulations in this country need updating? And if so, what
revisions do you think would be helpful and necessary,
particularly in light of Arizona's case? Please turn on your
mic. Thank you.
Mr. Mehl. Yes, absolutely, I think some changes need to be
made for clarity. At least in Arizona's case you have a high
degree of prevalence of dry washes, especially in alluvial wash
areas where water comes off mountains and sort of spreads out
over the land, creating a high degree of complexity in
analyzing where waters are and where waters aren't with respect
to the existing rules.
The 2015 rule resolve ambiguity in preference of total
inclusion, but there's a high cost of this. There's a high cost
in terms of what you pay for the analysis and just in the
overall land taken through that rule. Where in Arizona where
you have the only short number of days of rainfall a year and
there just simply isn't much water in the system, you need to
be able to use land for its highest and best purpose, and
that's the mission of the State Land Department. If you have a
rule that can show clearly what is and what is not included in
jurisdiction, then you create a great benefit. And I think on
the environmental side, you preserve what should be preserved
and leave for development what should be higher density to
prevent further sprawl and other environmental problems.
Chairman Biggs. Thank you, Mr. Mehl.
And, Mr. Chilton, five generations raising cattle in
Arizona, that's not an easy thing to do. With these
regulations, do you know of--besides the couple that you've
mentioned, your projects on your ranch, do you know of other
ranchers that have had to abandon projects because the
permitting process was too expensive and time-consuming?
Mr. Chilton. I do not know of other ranchers who have had
to abandon projects. Basically, ranchers avoid having to bump
up against the EPA and the Corps of Engineers. It's costly.
It's outrageous that if you want to build a road on your
private land and drive across a wash that you have to get a
permit. And Mr. Hopper's point about the costs of permitting is
outrageous. We need, and other ranchers need, a clear
definition of a significant nexus with a navigable river. Thank
you.
Chairman Biggs. Thank you. And, Mr. Hopper, my
understanding is that the EPA expanded the various definitions
of water in its rulemaking. Does this potentially increase
EPA's jurisdiction to regulate private property?
Mr. Hopper. Yes--excuse me. Yes. The EPA claims that their
new rule only expands three to four percent of the area that
they previously recognized. However, you have to keep in mind
that, as I just mentioned in my testimony, that the Supreme
Court, particularly Justice Roberts, has already castigated the
agencies for exceeding their authority and using a boundless
interpretation. So this is three to four percent in addition to
the boundless interpretation on which they've already relied.
Chairman Biggs. Have you seen any other federal agencies
attempting to expand their jurisdiction like we're seeing
here----
Mr. Hopper. Yes.
Chairman Biggs. --at the EPA?
Mr. Hopper. Yes. The Fish and Wildlife Service has done the
same under the Endangered Species Act, and in fact we have a
case now pending in the Supreme Court to address this very
issue called Markle v. U.S. Fish and Wildlife Service.
Chairman Biggs. Great. Thank you. I'm going to go ahead and
yield back and recognize the Ranking Member of the
subcommittee, Ms. Bonamici.
Ms. Bonamici. Thank you, Mr. Chairman.
The Supreme Court plurality decision in Rapanos created an
uncertain regulatory environment and the Clean Water Rule as a
result of the decision by the EPA and the Army Corps to provide
regular--regulatory clarity in light of the Rapanos decision
and to better define Waters of the United States. And this
effort involved considering how to address the two distinct
tests in Rapanos, one by Justice Kennedy and one by Justice
Scalia, about what constitutes a water of the United States.
And every federal court of appeals decision to consider this
question, including one just two days ago in United States v.
Robertson in the Ninth Circuit has held that Justice Kennedy's
test to define a water of the United States is a valid test to
apply.
Now, some have held that either test can be used. However,
some critics of the Clean Water Rule suggest that Justice
Scalia's test should be the exclusive test. The reason federal
courts have used Justice Kennedy's test as an appropriate basis
for determining what is protected is because of Supreme Court
precedent describing how plurality decisions should be
interpreted. This precedent makes clear that Justice Kennedy's
test at a minimum should be used and that Justice Scalia's test
should not be the exclusive basis for protection.
Mr. Kopocis, in light of these federal court decisions, is
there any legally justifiable reason for using Justice Scalia's
test as an exclusive basis for Clean Water Act coverage?
Mr. Kopocis. No, there is not. When I was at the Agency,
our Office of General Counsel consulted extensively with the
Department of Justice as to how to best interpret the Rapanos
case and how to apply it, and it was the decision of all of the
attorneys involved that the precedent from the Supreme Court
was very clear as to how to interpret a plurality decision, and
that's been reflected in all of the circuit courts to date that
have ruled on the issue.
Ms. Bonamici. Thank you. And, Mr. Kopocis, now, I've heard
from some Oregonians. They've expressed some concern that the
Clean Water Rule might affect their family farms and how they
manage their lands. And you heard Mr. Chilton's story. What
would you say in response to those who express those concerns?
Mr. Kopocis. We at the Agency in developing the rule took
the interest of agricultural properties very much into
consideration. We expanded upon the existing agricultural
exclusions from jurisdiction, which is significant because if
it's outside of the jurisdiction of the act, you don't even
have to worry about whether a permit is required. We preserved
all of the existing exclusions from jurisdiction, the ones for
prior converted cropland, for example, all the permit
exclusions or exemptions that are in the act. We even went back
in response to the comments and specifically excluded the
concept of puddles. The agencies had long said that puddles
were not jurisdictional in their informal documents, but--we
didn't think it was necessary to put that in the proposal, but
we were criticized for not doing so, so we put it back in. So
we wanted to make sure that there was no ambiguity that things
such as puddles, erosional features, and the like on
agricultural lands or any other land would not be
jurisdictional.
Ms. Bonamici. And you heard the testimony this morning by
the other witnesses. Are the points that they brought up any
different from the points that were brought up during the whole
Clean Water Rule public comment process?
Mr. Kopocis. No. We received, as you said, over a million
comments on the rule. They covered every aspect of what the
Agency should or should not do from the standpoint of the
proposal, plus also how to make the program work better. We
carefully evaluated all those comments and we made changes to
the rule based on those comments.
Ms. Bonamici. And could you also address the issue of the
ephemeral or intermittent streams and elaborate on the role
that intermittent and ephemeral streams play on the health of
downstream waters? And also--and there's just a minute left,
but could you also talk about wetlands and, considering the
great economic and environmental benefits associated with
wetlands, what would be the consequences of wetland habitat if
the Clean Water Rule were not implemented?
Mr. Kopocis. Well, intermittent and ephemeral streams are
the feeder streams of all of our Nation's rivers, lakes, ponds,
et cetera. So if they are destroyed or polluted, then you will
not be able to protect the larger waterbodies because it's
simply impossible. They are basically the capillaries of the
circulatory system of the hydrologic cycle. So it is important.
And it's also important to note that the agencies have long
asserted jurisdiction over intermittent and ephemeral streams.
This is not a concept that was new to the rule.
As to the value of wetlands, the values of wetlands have
been stated multiple times and have been calculated, but there
are tens of millions of people who spend billions of dollars a
year in wetlands-related activities, and that can be monetized.
There is also the value of wetlands that they provide in terms
of water quality and stormwater retention and reducing floods.
If anybody doubts the value of wetlands, they don't need to
look farther than the State of Louisiana, which is spending
billions of dollars to restore their coastal Louisiana wetlands
to protect the city of New Orleans and other communities.
Ms. Bonamici. Thank you. My time is expired. Thank you, Mr.
Chairman.
Chairman Biggs. Thank you. The Chair recognizes the Vice
Chair of the Subcommittee, Mr. Banks from Indiana.
Mr. Banks. Thank you, Mr. Chairman, and thank you for
holding this important hearing today. After hearing the
testimony, I am more convinced than ever that the original
WOTUS rule is an assault on transparency and accountable
government. It was overly vague; it ignored the legitimate
concerns raised by farmers, ranchers, and business owners;
utilized an overly broad interpretation of navigable waters
unjustified by the underlying statute; and encroached on the
rights of States to regulate waters within their jurisdictions.
I was proud to lead a letter earlier this year to Secretary
Pruitt in support of the Agency's decision to review and
rescind the original rule while also urging for its permanent
withdrawal. I'm glad that the Administration is taking this
issue seriously by working to rollback this rule.
WOTUS is a great example of what is wrong with our current
regulatory process. Instead of working with stakeholders and
carefully weighing trade-offs, the EPA looked to punish farmers
and ranchers with no concern as to the rule's detrimental
effects. The rule failed to acknowledge any limits on its own
authority by ignoring the plaintext of the Clean Water Act, as
well as the Supreme Court precedent in order to implement its
ideological agenda. Unelected bureaucrats making laws is a
direct threat to our constitutional system of government, and
it is our job as elected representatives to make sure that
these gross oversteps are stopped.
So with that, Mr. Hopper, in your testimony you write,
quote, ``On its face, the rule conflicts with the language of
the Clean Water Act and Supreme Court cases interpreting the
act. The rule also usurps the traditional power of the States
to manage local land and water resources and nullifies
constitutional limits on federal authority,'' end quote. Your
testimony then goes on into detail about the lack of scientific
justification for the rule and the regulatory overreach of the
EPA.
So with that, could you provide a brief overview again of
the ways that the EPA overstepped its authority of the rule?
Mr. Hopper. Yes. Thank you for the question. I would refer
you not merely to my testimony but to what my testimony relies
on, which is the conclusion of the District Court of North
Dakota, as well as Sixth Circuit, which arrived at those same
conclusions. Even if the Kennedy test were to be the applicable
standard, these courts found that the Agency exceeded the
significant nexus standard.
In addition, it seems obvious to me that, as we look back
at this 2001 SWANCC decision wherein the Supreme Court said
that the regulation of ponds and mudflats exceeded the
traditional power of the States to regulate local land and
water use and raised constitutional questions that the same
thing applies here, so I think if you simply look at what the
Supreme Court has already said, what the two courts said that
have stayed the rule, and one's own reading and common sense
suggests that this goes beyond any statutory or constitutional
limit recognized by the Court so far.
Mr. Banks. Okay. There are nearly 12,000 farms in my
district, and since a severe rainstorm could create standing
water on every farm, it is conceivable that every one of the
farms I represent could have been subject to this rule. So as a
follow-up, what kind of effect--do you agree with that? Could a
severe rainstorm create standing water on every farm that could
be subject to the rule? And what kind of effect would that have
on agricultural output?
Mr. Hopper. In 2012, Pacific Legal Foundation won a
unanimous Supreme Court victory in what's called the Sackett
case in which we challenged the right of an individual or
sought to seek the right of an individual to go to court to
question federal jurisdiction when the EPA issues a compliance
order. In the opinion that followed in our favor, as I said,
unanimously, Justice Alito himself said that under the Agency's
interpretation of the Clean Water Act it covers virtually any
wet spot in the country, so I would affirm what you just said.
Mr. Banks. Okay. Thank you. I yield back.
Chairman Biggs. Thank you. The Chair recognizes the
gentlelady from Hawaii, Ms. Hanabusa.
Ms. Hanabusa. Thank you, Mr. Chair. Mr. Chair, I'd like to
have unanimous consent to put into the record a 2013 report
from the Environmental Law Institute entitled ``State
Constraints: State-imposed Limitations on the Authority of
Agencies to Regulate Waters Beyond the Scope of the Federal
Clean Water Act.'' This assessment found only half of all the
States currently protect waters more stringently than the
federal Clean Water Act requires. This report determined that
the States are not currently filling the gap left by the United
States court ruling limiting the Clean Water Act and face
significant obstacles doing so.
Chairman Biggs. Without objection.
[The information appears in Appendix II.]
Ms. Hanabusa. Thank you. Mr. Chairman, I'd also like to
have the letter from sportsmen and women's groups including the
National wildlife Federation, the Theodore Roosevelt
Conservation Partnership, Trout Unlimited, and the Arizona
Wildlife Federation and others, all supporting the Clean Water
Act protections laid out in the Clean Water Act rule and oppose
rolling back these protections. They note hunters and anglers
broadly celebrated the Clean Water Rule because it would help
clarify federal jurisdictions over Waters of the United States
and conserve roughly 60 percent of the stream miles and 20
million acres of wetlands at risk of being polluted or
destroyed because of the jurisdictional confusion.
Chairman Biggs. Without objection.
[The information appears in Appendix II.]
Ms. Hanabusa. Thank you, Mr. Chair.
Mr. Kopocis, I have some questions of you. First of all,
you use a very interesting phrase called repeal and retreat. So
what is it that you are so concerned about that the repeal of
the rule would result with?
Mr. Kopocis. Well, repealing the rule will eliminate the
advantages of the rule to provide greater clarity as to what is
and is not jurisdictional under the Clean Water Act in a post-
SWANCC and post-Rapanos world. The trouble that the agencies
had to deal with particularly after Rapanos was that the
agencies were told that the reliance on waters that the
pollution or destruction of which could have an adverse effect
on interstate commerce was not the test to be used. So you had
a rule that was out of sync with boththe Scalia opinion and the
Kennedy opinion.
So as the Agency attempted to address that--and obviously,
there's some disagreement as to how successful the Agency was--
but the Agency was trying to address that particular issue. So
repealing it only restores the very confusion that everybody--
and I will say everybody, whether it was the environmental
community, the fish and wildlife community, it was the
construction community, it was Republicans, Democrats, State,
local, federal. Everybody that came said you've got to fix
this. And so what they're about to do is unfix it and put it
back to those days.
The reason I refer to retreat is that if there's going to
be an effort to form a rule based on the Scalia opinion, it
will cover a very narrow set of waters which will eliminate the
protection for as much as 60 percent of the Nation's waters.
That is a serious, serious retreat from what this Congress
enacted in 1972.
Ms. Hanabusa. Mr. Kopocis, one of the things that I do
follow is administrative rulemaking, and I did want to confirm
with you that you had over a million public comments over a
period of 207 days, and the Agency held over 400 public
meetings all across the country. And you personally attended
about 70 of these meetings in your prior capacity both in
Washington and across the country. Can you tell me, after
hearing all of this, why you still remain so confirmed--so firm
in your belief that the rule should not be repealed?
Mr. Kopocis. Well, I think that when we set out to
undertake it, we also set out to develop what was the best
available science, and the work of our Office of Research and
Development at EPA in developing that science was extensive.
They originally looked at over 1,000 previously peer-reviewed
documents. EPA did not create any of the science. They then,
through the course of review and public comment, added another
couple hundred documents to that report and came up with the
conclusion on the interaction of waters and how upstream waters
and their pollution or destruction affects downstream and
adjacent waters. And so it was critical that the agencies apply
the best available science.
As I said, nobody has brought forward better science or
said that the science the agencies used was bad. And then the
agencies had to apply the law as interpreted both from the
legislative history and the words of the Clean Water Act and as
interpreted by the three Supreme Court cases where the Court
had opined.
Ms. Hanabusa. Thank you very much, and, Mr. Chair, I yield
back.
Chairman Biggs. Thank you. And the Chair recognizes the
gentleman from California, Mr. Rohrabacher.
Mr. Rohrabacher. Thank you very much, Mr. Chairman.
Let me just--we have a cattlemen with us here, Mr. Chilton.
Mr. Chilton, you are really not in the cattle business; you are
in the moneymaking business. Everything you do is aimed, just
like everybody else. We're working our jobs, but we really are
doing it to earn a living.
But in your earning your living, you're providing meat for
my family and I appreciate that, and I'd just like to know
that--do these water issues impact on the price of the
hamburgers that I'm buying?
Mr. Chilton. I would say yes. The cattle business is one of
the largest businesses in the Nation, and as it's impacted
adversely by bureaucrats at the Environmental Protection Agency
and the Corps of Engineers, it raises the cattlemen's costs.
And it's absolutely absurd to think that the rules--the 2015
rules, which were over a half-inch thick, are easy to
understand or--they're ambiguous and I can't----
Mr. Rohrabacher. Did you have to hire a lawyer to----
Mr. Chilton. Yes. And consultants and lawyers.
Mr. Rohrabacher. Now, let me ask about the consultants and
lawyers. The fee that you had to pay them, did you add it on to
the price of the meat for the hamburger that I have to buy for
my kids?
Mr. Chilton. No, it took away from my profits.
Mr. Rohrabacher. Okay. Well, that's good. That's a fair
answer. And let me just note if the cattlemen don't make a
profit, my kids are going to pay more for their hamburger.
And--just like every other business unless you take away a
profitability.
Now, let me ask you this. When I was a kid, my family came
from North Dakota and we'd go back and visit. My dad was a
marine, and we'd go back and visit our relatives. And we were
relatively poor people, I might add. I remember that there
were--on these roadsides out in the middle of nowhere there
were these gullies, and I guess ditches was a better
description of them, and they'd fill up with water and my
cousins would go out and they could actually get some crawfish
out of those ditches.
And let me ask you this. Today, if--according to the rules,
if something goes on with those ditches and a federal
bureaucrat or a Federal Government employee now has power, do
they have power over the water in those ditches? I'd ask that I
guess to Ken. You go right ahead.
Mr. Kopocis. Thank you for the opportunity to answer that
question because one of the items that we did take care of in
the rule from proposal to final was we excluded virtually all
the roadside ditches from the jurisdiction. We wanted to make
that clear. So the answer--I can't speak to the specifics, but
it is highly much more likely than not that the ditches you
describe would not----
Mr. Rohrabacher. Okay. So the question--I think the
question we have to have now is do we really want to expand the
federal definition of what those ditches are like you have just
described? We took those ditches out? Why do we have the
Federal Government making that determination? Shouldn't that
be--I mean, that should be left up to local people. Why are
local people any more less sympathetic with these important
issues we're talking about, the cost of this man's doing
business or the cleanliness of the water that everybody
consumes in that area? Why is the Federal Government more
sympathetic to the needs of the people than a local bureaucrat
or a local government official?
Mr. Kopocis. Well, that's--the 2015 rule would have given
all of that authority to State and local officials. By saying
that these would not be jurisdictional, the Federal Government
would have no role.
Mr. Rohrabacher. Yes, I--on those ditches?
Mr. Kopocis. On those ditches, yes.
Mr. Rohrabacher. But not on these dried-up riverbeds that
we're talking about and they will determine what's a ditch and
what's a dried-up riverbed.
Now, let me just ask one last thing. Of course, when it
comes down to California, you have to understand we were just
in a big drought in California. And this was a drought that
lasted 3 or four years. And in the middle of the drought we had
people who were so nutty that we actually channeled millions
and hundreds of millions of gallons of fresh water into the
ocean in order to save a little thing called Delta smelt. Now,
let me just note that crawfish are really important, I think,
but they're not important enough to give all this power to the
Federal Government and maybe to have some really horrible
economic decisions on the industry that provides us our meat.
And what we learned in California, sometimes people are so
crazy and so fanatic about every--about endangered species and
things such as that that they will hurt the well-being of
regular people, as they did when they put all of that water,
fresh water into the ocean in the middle of a drought in
California.
Chairman Biggs. The gentleman's time is expired.
Mr. Rohrabacher. Oh, thank you very much, Mr. Chair.
Chairman Biggs. Thank you. Thank you. The Chair recognizes
the gentleman from Texas, Mr. Weber.
Mr. Weber. Thank you, sir. All right here we go. I'm going
to read from the President's executive order. I just can't
hardly be quiet anymore if I can get my iPad here working.
In his order February 28, 2017, section 1 policy, ``It is
in the national interest to ensure that the Nation's navigable
waters are kept free from pollution, while at the same time
promoting economic growth, minimizing regulatory uncertainty,''
which was referred to by the gentlelady from Oregon--we'll talk
about that in a minute--``and showing due regard for the roles
of Congress and the States under the Constitution.'' Mr.
Chairman, I'd like permission--unanimous consent to read into
the record the Tenth Amendment--have it placed in the record
rather.
Chairman Biggs. Without objection.
[The information appears in Appendix II.]
Mr. Weber. Thank you. Mr. Chilton, you said you've been
farming or you've been ranching--your family has for 127 years.
Is that true?
Mr. Chilton. That's exactly true, yes.
Mr. Weber. Are you glad that your great-grandparents, your
grandparents, and your parents took care of their property and
you were able to do the same kind of ranching?
Mr. Chilton. I am.
Mr. Weber. They did a good job, didn't they?
Mr. Chilton. They really did a good job, and we really have
an excellent ranch with wonderful grasses, and we take care of
our land.
Mr. Weber. It's in your vested interest, isn't it?
Mr. Chilton. It is.
Mr. Weber. You said early in your testimony that you had to
get a permit and you had to pay a lot of good money to an
environmental attorney. Is there any other kind of money, Mr.
Chilton, than good money?
Mr. Chilton. All money is good and----
Mr. Weber. Absolutely. And you're tired of giving it to a
lawyer, right?
Mr. Chilton. I hate giving it to the lawyers----
Mr. Weber. I don't----
Mr. Chilton. --and I hate listening to lawyers.
Mr. Weber. I don't blame you at all.
Mr. Kopocis, I'm going to come to you. Is the Supreme Court
ever wrong?
Mr. Kopocis. The Supreme Court is the law of the land.
There are----
Mr. Weber. That's not what I asked. Does Brown v. Board of
Education, Plessy v. Ferguson, or Dred Scott cases ring a bell
with you where they actually reversed themselves?
Mr. Kopocis. Yes, they--yes----
Mr. Weber. Okay. So they--we do know they are wrong?
Mr. Kopocis. They do reverse themselves from time to time,
yes.
Mr. Weber. Okay. So they do make mistakes. All right. So in
your discussion--in your exchange with the gentlelady from
Oregon, she made the comment that it created regulatory
uncertainty, but I will tell you that the regulatory
uncertainty was created long before the case got to the Supreme
Court. It was created by an overreach of the Federal
Government. The Tenth Amendment, the reason I want it read into
the record is because you just got through with Dana
Rohrabacher saying that the 2015 rule gave the States the
authority. I will tell you that is so patently false on its
face. Read your Constitution. The Federal Government is
delineated with what their responsibilities and what their
powers are by the Founders of this country. All others are
given to the States and the people respectively, period, end of
sentence. That's just exactly the way it is. When the Federal
Government starts feeling like it has to dole out power to the
States, something is wrong, terribly wrong with this country.
Let me continue. That's my op-ed for the minute, okay? I
hope I wasn't too forceful to you. If I was, tough.
Mr. Kopocis. Well, perhaps----
Mr. Weber. I'm going to go----
Mr. Kopocis. Perhaps I should've said that they basically
just took the Federal Government out of it.
Mr. Weber. Okay.
Mr. Kopocis. It wasn't an affirmative----
Mr. Weber. If we can get you on record of wanting to take
the Federal Government out of the WOTUS, we're all for that.
Are you on record saying you want to take the Federal
Government out of it?
Mr. Kopocis. I don't believe that the Federal Government--
--
Mr. Weber. Okay. Mr. Hopper, I'm going to come to you. In
President Trump's executive order February 28, '17, I just
read, he directs EPA and the Army Corps to consider the Scalia
opinion in the Rapanos case in its revisions to WOTUS. I've got
two questions really. I've got about a minute left. What is the
difference between Justice Scalia's approach and Justice
Kennedy's and why does it make more sense to follow Justice
Scalia's, Mr. Hopper?
Mr. Hopper. First, to the second question, as I outlined in
my law review article, it's required by law to rely on the
plurality decision authored by Justice Scalia than it is the
Kennedy approach under the Supreme Court's Marks decision,
which says when you have a split decision, you look at those
Justices who agreed in the final judgment, which would be the
four in the Scalia plurality and Justice Kennedy. You never
look to the dissent. All these other courts that have held that
the Kennedy test is controlling have relied on the dissent.
This is----
Mr. Weber. And isn't that interesting?
Mr. Hopper. Yes, it is. And that's contrary to the express
decision by the Supreme Court in Marks.
Your other question was?
Mr. Weber. What was the difference between the Scalia
approach and the Kennedy's?
Mr. Hopper. Yes, the difference is significant. Mr. Kopocis
is right that there's no question that the Scalia plurality is
going to be narrower, and that's why it falls under the Marks
decision. When you have two competing concurring opinions, you
look to see whether one is a subset of the other, and the
Scalia plurality decision is a subset of the larger
interpretation of Justice Kennedy.
Mr. Weber. Good point.
Mr. Hopper. The major difference, however, is that under
the Scalia plurality, it's fairly definite in that it describes
relatively permanent tributaries and abutting wetlands that are
indistinguishable. However, through the significant nexus test,
it's--it can only be applied on a case-by-case basis, and
that's where the lack of clarity comes. And the WOTUS rule that
was published in 2015 continues to rely on this case-by-case
analysis, which gives nobody any security or certainty. Judge
Kelly in the Eighth Circuit said, interestingly enough, the
Clean Water Act is the only law I know of where you have to
hire an expert to determine if it even applies to you, not to
mention an attorney.
Mr. Weber. Thank you, Mr. Hopper.
Thank you for your indulgence, Mr. Chairman.
Chairman Biggs. Thank you. The Chair recognizes the
gentleman from Texas, Mr. Babin.
Mr. Babin. Thank you, Mr. Chairman, and I thank you,
witnesses, for being here.
Mr. Hopper, you mentioned in your testimony that the draft
2015 WOTUS rule in the final rule had substantial differences
within it. Were these differences subject to public notice and
to public comment?
Mr. Hopper. Yes, absolutely. That was one of the reasons
why the rule was stayed by the District Court of North Dakota
and the Sixth Circuit Court of Appeals is because there was
such a substantial difference between the proposed rule and the
final rule, particularly with respect to these distance
limitations of 4,000 feet and the 1,500 feet, and the 100-year
floodplain.
Mr. Babin. Absolutely. So these changes are substantial
enough to have warranted this extension period?
Mr. Hopper. Without question.
Mr. Babin. Yes. Okay. And then also in a May 29, 2015,
interview with PBS NewsHour, previous EPA Administrator Ms.
Gina McCarthy stated the following, quote, ``The farmers will
know very clearly here that we are clearly explaining that
irrigation ditches are not included. We have clearly said in
the rule and beyond this rule as absolutely no new regulatory
or permitting issue for agriculture whatsoever.'' Do you agree
with this statement?
Mr. Hopper. No. In fact, I remember reading--writing a blog
post saying that the Administrator's a prankster because if she
had read her own rule, she'd realize that it's not clear. Even
if the--there's been no change in the exemptions, the statutory
exemptions for agriculture, that in itself constitutes a
problem because the Agency has a history of defining these
exemptions so narrowly as to eviscerate them. For example,
there's an exemption for farming. Common farming practices
should not be subject to Clean Water Act jurisdiction. However,
common farming practices are interpreted to mean what's common
and ordinary on that particular farm, not what's common and
ordinary in the industry. We think that's bogus, undermines the
exemption and the statute, and I think we're going to see the
same type of thing with any other exemption like ditches.
Mr. Babin. Right. So we're looking at an enormous overreach
by unelected federal bureaucracy.
Mr. Hopper. By any definition.
Mr. Babin. Absolutely. Okay. And then, Mr. Chilton, how can
a landowner possibly be expected to know prior to any digging
that any water encountered would be, quote, ``groundwater'' and
therefore exempt or shallow sub service and therefore subject
to the Clean Water Act requirements or even to fines?
Mr. Chilton. Well, most farmers and ranchers want to do a
good job and earn a living, and you can't really determine when
you have an ambiguous overreaching rule that isn't easily
understood. I don't know how you tell the difference between a
groundwater issue and whether it's a surface water issue. It's
very difficult, and one has to, under the 2015 rule, hire
consultants and attorneys to answer that question. Is there a
significant impact? In our area the Santa Cruz River doesn't
even reach a navigable river here. I mean, it's outrageous the
way the County of Pima has to go through all the treacherous
paperwork that is imposed on them by the Environmental
Protection Agency and the Corps of Engineers when the Santa
Cruz River doesn't even reach a navigable river. It's
outrageous. And in terms of groundwater, let the State control
what is groundwater and what is surface water.
It's difficult. It's ambiguous, and it's expensive. We have
an overreaching Federal Government. Remember, the States
created the Federal Government, and now the Federal Government
is ruling with a high--with an iron hand. And I hate to say
this, Ken, but bureaucrats like you are overreaching. It's
outrageous.
Mr. Babin. Thank you, Mr. Chilton. My time is expired, Mr.
Chairman.
Chairman Biggs. Thank you.
Mr. Babin. I appreciate it, though.
Chairman Biggs. Thank you. The Chair recognizes the
gentleman from Georgia, Mr. Loudermilk.
Mr. Loudermilk. Thank you, Mr. Chairman. I thank all the
panel for being here.
I want to just open with one quick question, yes or no
question. Commissioner Mehl, do you agree with the Waters of
the United States rule?
Mr. Mehl. The 2015?
Mr. Loudermilk. Yes.
Mr. Mehl. No, I do not.
Mr. Loudermilk. No. Mr. Chilton, do you agree with that?
Mr. Chilton. Absolutely no.
Mr. Loudermilk. Mr. Hopper, do you agree with it?
Mr. Hopper. No.
Mr. Loudermilk. Seventy-five percent of our panel just said
no, they don't agree with it, but, Mr. Kopocis, back in August
of this year you co-authored an op-ed on the Hill that was
entitled ``Trump Plans to Roll Back Environmental Rule Everyone
Agrees On.'' Can you define who everyone is? I mean, I--when I
go back to my district, I do not hear this, that everyone
agrees with it, so I think that the title may be a bit
misleading at the best. But I would say that's kind of
consistent from what I've seen in the three years I've been in
Congress with the EPA has a history of using any means or
method to achieve a goal that it wants, regardless of fact,
law, or public opinion, and I want to address some of those
issues with you today.
I think possibly maybe some of the reason you say everyone
agrees with this rule is, as you said several times in your
statement and responding to questions was there was
unprecedented public comment. I believe I read somewhere
recently that you or someone commented that 87.1 percent of
those commented in favor of the Waters of the United States. Do
you recall that, that----
Mr. Kopocis. I don't believe that was a statement that I
made.
Mr. Loudermilk. Okay. But----
Mr. Kopocis. That sounds about right.
Mr. Loudermilk. Okay. The majority of the people were in
favor it, but it's interesting because the New York Times came
out in 2015 with an article that uncovered that the Agency was
actually involved in what the GAO has now determined was an
illegal social media campaign called Thunderclap. Are you
familiar with that?
Mr. Kopocis. Yes, I am.
Mr. Loudermilk. You're familiar with that. So in fact one
of your colleagues at the American University stated that the
Agency is supposed to be more of an honest broker, not a
partisan advocate in the process. Now, I was surprised to learn
that the Agency was actually using social media to generate
support for Waters of the United States. In fact, through a
FOIA request by Judicial Watch, the former EPA Director of Web
Communications admitted that she did not want, quote, ``it to
look like EPA used its own social media accounts to gain
support for the rule'' even though you partnered with Sierra
Club and some other grassroots organizations. In fact, as I
mentioned, the Government Accounting Office stated that you had
``violated publicity or propaganda and anti-lobbying provisions
contained in appropriations acts in association with its Waters
of the United States rulemaking.''
So do you agree with the statements of your colleague? In
fact, again, Professor Lubbers said that a guide to federal
agency--that--I'm sorry. ``I have not seen before from a
federal agency this stark of an effort to generate endorsements
of a proposal during an open comment period.'' Were you aware
of the Thunderclap in the generating of popular public opinion
during this rulemaking period?
Mr. Kopocis. I became aware of the Thunderclap incident
after it had occurred. The--I was not--that was something that
was handled by our communications--our communications staff. We
did--I'm familiar with the GAO letter on the issue where they
found--they found some minor violations of the appropriations
law. The Agency disagreed with the Agency's conclusions--with
GAO's conclusions, as did the Department of Justice.
Mr. Loudermilk. Okay. Well, I mean, I think most of the
people in the country expect our agencies to--when you have a
public comment period to be honest brokers in listening to
public opinion, not generating public opinion but again--and
I'll close with this--I think it's been in the history of the
Agency following this. In 2015, the Science Committee obtained
documents from the EPA demonstrating the EPA had avoided the
regulatory impact analysis process at the Office of Management
and Budget. If you recall, there was a question that you have
to do an impact analysis if a rule or regulation exceeds a
certain fiscal impact on the Nation, which was the question.
Can we bring up the slide, please?
[Slide.]
Mr. Loudermilk. Okay. This was an email that we actually
brought up in a hearing when we had Director McCarthy in a
while back, and I want you to follow along. And let's start at
the bottom of the email. This was an email from Jim Pendergast,
who I think you're familiar with, and basically, in the second
sentence of the first paragraph in the last part says, ``You
relayed to us that Greg Peck said the rule now considered
significant that OMB was like--was unlikely to change that
designation and that''--and basically that you have to do this
impact study. It went on in the second paragraph that the rule
is now considered economically significant by OMB, so it would
require this impact study.
If you go up to the next email, ``So just got off the phone
with Sandy and Tomeka. They say that Nancy and Ken know that an
RIA may be necessary but they are--but that there are some
economically significant rules EPA haven't had an RIA,'' even
though the law says you have to do it.
Chairman Biggs. The gentleman's time has expired. Perhaps
Mr. Higgins who's next on the list will yield you some time.
Mr. Loudermilk. Thirty seconds.
Mr. Higgins. I'd like to yield to my colleague.
Chairman Biggs. He yields 30 seconds, Mr. Loudermilk.
Mr. Loudermilk. Thank you, Mr. Chairman. And with this,
``At last, good news. Tomeka and Sandy talked to Ken. Ken said
it has been agreed that we do not need an RIA.'' This kind of
fits into what we've seen is that the law doesn't matter, the
public opinion obviously doesn't matter, and rules don't
matter--is--do you think that you--that it's acceptable just to
make an opinion that you don't need an impact analysis and then
go forward with that?
Mr. Kopocis. The requirement to do the impact analysis
comes out of an executive order, does not come out of a statute
or the public laws. It is something that is routinely
negotiated between the agencies and the Office of Management
and Budget, their Office of Information and Regulatory Affairs,
OIRA, and that is something that there were extensive
conversations between the Agency and OIRA----
Mr. Loudermilk. Did Gina McCarthy negotiate that?
Mr. Kopocis. I am not--I don't recall that Gina McCarthy
was personally involved.
Mr. Loudermilk. Thank you, Mr. Chair.
Chairman Biggs. Thank you. The Chair recognizes the
gentleman from Louisiana, Mr. Higgins.
Mr. Higgins. Thank you, Mr. Chairman. In the interest of
time, I'll ask your answers to be brief. Mr. Kopocis testified
that the 2015 Waters of the United States rule used the best
science available. Mr. Hopper, do you agree that the rule used
sound science and the best science available?
Mr. Hopper. The answer is no, and the two courts agreed.
Mr. Higgins. Thank you for your answer. Mr. Kopocis, thank
you for appearing before us today. Are you familiar with the
enumerated powers of our Constitution?
Mr. Kopocis. Yes. I----
Mr. Higgins. Article II, sections 2 and 3 gives the
President constitutional authority to issue proclamations and
orders, thereby the--according to the constitutional
parameters, the 2015 Waters of the United States rule, as
amended by President Obama, would be legal, don't you agree?
Mr. Kopocis. I'm sorry. I didn't follow the question, Mr.
Higgins.
Mr. Higgins. In other words, there's executive authority
for altering of rules at the federal level granted to the
President of the United States. So----
Mr. Kopocis. Yes, sir----
Mr. Higgins. President Obama's ruling was legal. Do you
agree?
Mr. Kopocis. The Clean Water Rule that was----
Mr. Higgins. That was amended.
Mr. Kopocis. --2015 was--yes, I believe it was legally
promulgated.
Mr. Higgins. All right. So if it was constitutionally sound
for President Obama to alter the rule, don't you agree that it
is constitutionally sound for President Trump to do the same?
Mr. Kopocis. Oh, I don't raise any question about his
constitutional authority.
Mr. Higgins. All right. Let's move forward. I'd like to
give you an example, sir, of a town that exists within the
district I represent, south Louisiana. This is a small town of
just a few thousand folks. It's economically sound. A railroad
runs through it. Those folks work hard to develop their
community, and they of course have to deal with rain.
Decades ago at the southern parameters of that
municipality, a ditch was dug. A 12-mile ditch was dug through
private property owned by five Americans, all of whom had--have
family, grown up together, they've known each other for
generations, they're family within this community. This
drainage ditch was designed to collect the rainwater and runoff
and bring it to a more major navigable waterway 12 miles
through private land.
Over the course of decades, the ditch deteriorated. And
because of the 2015 Waters of the United States rule, although
this municipality of American citizens and the five private
landowners that owned the land where the original ditch was
established were not allowed to reestablish the original
parameters of this relatively small ditch through their own
land because of the interpretations of the Waters of the United
States regarding wetlands, do you feel that that's reflective
of our Founding Fathers' intent regarding the union of 50
sovereign States and the rights of the citizens that live
therein?
Mr. Kopocis. Well, first of all, I'm a little puzzled as to
how the 2015 rule could have affected this ditch since it was
in effect for only a matter of a few days. It has been on--it's
been stayed----
Mr. Higgins. Because the interpretation of the Corps of
Engineers determined that that private land was wetlands based
on broad interpretations from one Corps command-and-control
center to the next.
Mr. Kopocis. Well, Mr. Higgins, the waters in question may
have been jurisdictional, and they may have been jurisdictional
since 1972. I really can't speak to the specifics of that.
Mr. Higgins. I'll just ask you as an American, sir. Do you
think that that's right, that a private landowner cannot
reestablish a ditch as decades-old to allow water to flow to
protect his neighboring communities?
Chairman Biggs. The gentleman time is expired. If you
choose to answer, Mr. Kopocis, you may.
Mr. Kopocis. Thank you. I will briefly. Since 1977, the
service and maintenance of existing ditches is exempt from
permitting requirements under the Clean Water Act. And as to
your point as to private property, a lot of the waters that are
subject to the clean water jurisdiction are on private
property. If we were to exclude all waters that are on private
property, the only waters left would be those that form
interstate boundaries or are on federal land.
Mr. Higgins. Thank you, Mr. Chairman.
Chairman Biggs. Thank you. The Chair recognizes the
gentleman from South Carolina, Mr. Norman.
Mr. Norman. First, I want to thank each of you for taking
the time.
Mr. Chilton, your experiences with what you went through
with trying to cut a small ditch is ridiculous, and it's
unelected bureaucrats who are causing this country more
trouble. And my response back to most of them is to let you pay
for it.
Mr. Mehl, let me ask you. The EPA under the previous
Administrations claimed that they are not regulating land with
this rule. If you regulate water in a real sense, aren't you
really regulating land use? And even though the Agency has that
it does not intend to take over private property, how can the
Agency deny that by expanding vastly its definition of the
Waters of the United States, it effectively is limiting the
activities that can occur on your private property? Is this not
the case?
Mr. Mehl. Yes, sir. The rule does affect land use.
Obviously, it affects density, it affects configurations of
what you can develop. In Arizona where you have situations
where water spreads over large areas, you have a tremendous
impact as you really have to make decisions about what goes
where, and those are traditionally decisions made at a local
level about zoning.
And with respect to the water it's not even a question of
polluting or preventing water from going from one place to
another because largely engineering will do that. We want to
develop certain lands. You can direct the water around these
developments so that they go from the same point A to the same
point B. And our only subject to fill such as dirt and concrete
and steel.
The true impact is on what you can do with that land, and
so it is a land-use regulation. And it's tremendously
destructive for value.
Mr. Norman. And that's the effect that you're basically
taking somebody's private land.
Mr. Mehl. Yes.
Mr. Norman. Mr. Chilton, the 2015 WOTUS rule sought to
regulate isolated waterbodies like dry washes. This is a
significant stretch in the federal authority from the previous
interpretations of the Waters of the United States. How would
regulations over these isolated waterbodies impact your
operation? And as you've got a pretty big operation--in other
agricultural operations in Arizona?
Mr. Chilton. First, our dry washes run into other dry
washes that run into dry rivers and dissipate, as Mr. Mehl
says, in the desert. They never reach the Colorado River. And
for us to have to try to judge under the 2015 rule what is or
isn't a water of the United States and some sort of language
saying high watermark, I kind of think of Noah. What was the
high watermark when Noah was there? Do we have to--does that
mean all the world is subject to the 2015 rule? I mean, why do
we have to live under the rule of the EPA and the Corps of
Engineers? It's very expensive, it's costly, and it's time-
consuming.
Mr. Norman. Well, I appreciate you expressing your views.
And it's sad to read in our notes what you had to go through
and, you know, the money that you had to spend. That's one
truck that you can't buy. That's one hiree that you can't put
food on the table with a salary. So I appreciate you telling
your side of the story and being willing to come up and express
your concern. Thank you so much.
Mr. Chilton. Thank you.
Mr. Norman. I yield back.
Chairman Biggs. Thank you. And we appreciate the interest
of some Members--some folks--Members of the whole Committee who
are here for the Subcommittee because of the interest on this
important issue, and so I recognize them for their patience and
will recognize first Mr. Tonko from New York.
Mr. Tonko. Thank you, Mr. Chair.
I have letters from more than 250 scientists and the
Society of Wetland Scientists who strongly oppose a repeal of
the Clean Water Rule. They note that the rule is supported
overwhelmingly by scientific evidence and that a repeal of the
rule, and I quote, ``poses a significant threat to the
integrity and security of our drinking water, public health,
fisheries, and wildlife habitat,'' close quote.
So I ask, Mr. Chair, that these letters be included in the
record.
Chairman Biggs. Without objection.
[The information appears in Appendix II.]
Mr. Tonko. Thank you.
Every life and every job in this country depends on clean
water. We must protect this precious resource and not throw
away all the progress we have made. Earlier this year members
of the House Sustainable Energy and Environment Coalition, or
SEEC, led a comment letter to EPA opposing Administrator
Pruitt's efforts to rescind the Clean Water Rule.
Since the 1970s, we have learned so much about our
waterways. Years of research and peer-reviewed science have
told us that the Waters of the United States are connected.
What do we do--we do to one will impact the health and the
safety of another.
The Clean Water Rule protects the drinking water of roughly
1/3 of Americans. One hundred and seventeen million Americans
rely on drinking water sources fed by intermittent or ephemeral
streams. Rolling back this rule also jeopardizes waterways that
Americans use for recreation. The bottom line is Americans need
an EPA that will use the best possible science to protect our
health and our national--natural heritage.
In his testimony Mr. Hopper claims that the Clean Water
Rule is not supported by scientific evidence. To the contrary,
EPA issued a comprehensive science report known as the
Connectivity Report which reviewed and summarized the relevant
peer-reviewed scientific literature. Mr. Kopocis, how do you
respond to the claim that the Clean Water Rule is unsupported
by scientific evidence?
Mr. Kopocis. Well, quite frankly, sir--thank you for the
question--I find it to be a little troubling in how to answer
that because typically when science is disputed, somebody
brings science to the table and says, ``Well, I disagree with
your science and here's my science as to why.'' To date, the
opponents of the rule have not brought forward credible science
to counter what the Agency put together.
And as I said in my opening remarks, the Agency did not
create any of the science associated with the Connectivity
Report. It was based on about 1,200 previously peer-reviewed
studies and articles that had been put together by the experts
in the field. EPA's compilation then was subject to public
comment. It was sent to the Independent Science Advisory Board
for its views, a science advisory panel that was made up of 27
experts in the field. They held public meetings and reviewed
the document and ultimately came with the final document and
the conclusions that were contained therein. As I said, since
that time, nobody has come forward and said, ``I have science
that debunks yours.''
Mr. Tonko. And just why is this Connectivity Report so
important?
Mr. Kopocis. Well, when Justice Kennedy in his opinion
opined on the significant nexus test, he said it was the
relationship of waters upstream to downstream that was
important, that those downstream waters of course--the upstream
relationship to downstream waters that are navigable waters,
jurisdictional waters. And so because the agencies in the past
had looked at the effects on interstate commerce instead of how
waters were interconnected with each other, it was important
for us to develop that science so that we could be informed on
where the Clean Water Act jurisdiction starts and where it
ends. And it was important to note that some of the waters that
are--that the science report suggested could be jurisdictional
under the Clean Water Act were not included in the final rule.
Mr. Tonko. And in terms of informing us or policymakers as
to any future actions to repeal or replace the rule, what role
does the Connectivity Report play?
Mr. Kopocis. Well, the Connectivity Report is there. If the
Agency follows its path and issues a new rule, it is going to
have to explain why it does not follow the science that the
Agency itself already prepared and already sent through the
public process.
Mr. Tonko. And in your testimony you discussed the
importance of clean water to the Nation's economy listing a
number of businesses and industries that need a reliable supply
of clean water to function. Can you elaborate on the role of
clean water in supporting the American economy, please?
Mr. Kopocis. Well, clean water is important and required
for virtually every aspect of the American economy. There is no
sector of the economy that can exist without fresh, clean, and
abundant water. When companies come to look at creating new--a
new factory or a new endeavor, they look at what is the
availability of water, whether that's the soft drink industry--
Coca-Cola spends enormous amounts of money trying to figure out
where fresh water is available. Manufacturers use water;
farmers use water. It's--virtually every segment of society
uses water. It has to have it, an adequate and clean supply.
Mr. Tonko. Thank you very much. Mr. Chair, I yield back.
Chairman Biggs. Thank you. The Chair recognizes the very
patient gentleman from California, Mr. Takano.
Mr. Takano. Thank you, Mr. Chairman. I appreciate the
opportunity.
Mr. Kopocis--before I begin, Mr. Chairman, I have a letter
from 60 different groups around the country including Earth
Justice, the League of Conservation Voters, the Natural
Resources Defense Council, Alaska Wilderness League, the Puget
Sound Keeper Alliance all supporting the clean water
protections laid out in the Clean Water Rule and opposing
rollbacks of the rule. I ask that this letter be included in
the record.
Chairman Biggs. Without objection.
[The information appears in Appendix II.]
Mr. Takano. Thank you, Mr. Chairman.
Mr. Kopocis, the witnesses today have identified many
problems they think exist with the Clean Water Rule, and I
wanted to give you an opportunity to address some of the
concerns raised in the written testimony directly. If you could
briefly respond to each of these concerns. A, why is the
conclusion of all tributaries legal--in the rule legal?
Mr. Kopocis. The rule actually doesn't include all
tributaries. For the first time it placed restrictions on the
definition of what constituted--constitutes a tributary. The
old rule used to refer to the presence of an ordinary high
watermark. The new rule says ordinary high watermark, plus
there has to be a bed and banks, so there would be waterbodies
that could be thought of and would be thought of as tributaries
that would be excluded under the new rule. It does not cover
all tributaries.
Mr. Takano. Okay. So actually compared to the old rule this
new rule----
Mr. Kopocis. Correct.
Mr. Takano. --actually----
Mr. Kopocis. It's more narrow----
Mr. Takano. --is more narrow.
Mr. Kopocis. --because it's more specific in the physical
requirements to be considered a tributary.
Mr. Takano. Well, is the definition of adjacent waters
overbroad?
Mr. Kopocis. No. In fact, it's been interesting that many
of the criticisms of the definition of adjacency have focused
on the distance limitations, the use of the 100-year
floodplain, the 4,000 feet, the 1,500 feet, et cetera. In the
proposal what went out it was floodplains and riparian areas
without limitation, so the limitations that are in the final
rule that are being criticized as overly broad are in fact
limitations on what was in the proposal.
Mr. Takano. Thank you. Does the rule contain an invalid
inclusion of isolated waters?
Mr. Kopocis. No. There is obviously some disagreement as to
the holding in SWANCC. SWANCC, that case said that it was
inappropriate for the agencies to rely on the presence of
migratory birds to assert jurisdiction over an intrastate
isolated water, and the agencies don't do that. The agencies
have always looked at isolated waters and have been able to
find jurisdiction under other theories. And Justice Kennedy in
particular said that it was in fact sometimes the lack of a
physical connection that provided the nexus to the downstream
water.
Mr. Takano. Thank you very much for that. Did the EPA--did
EPA fail to provide notice and comment of substantial rule
changes?
Mr. Kopocis. No. Every one of the changes that we made from
proposal to final were part of a test--the legal test of a
logical outgrowth. In the proposal we asked over 50 specific
questions for commenters, asking them for their views on a
variety of issues, including items such as what was the correct
floodplain, how should we define the riparian area, are there
limits how--what should the Agency do? So, no, we did not
believe so.
Mr. Takano. Thank you. Does the rule exceed----
Mr. Kopocis. I shouldent say we--the Agency.
Mr. Takano. Thank you. Thank you for that. Does the rule
exceed the scope of commerce power--of the commerce power?
Mr. Kopocis. Well, the Agency--working within the Agency
and the Department of Justice believes the answer is no.
Obviously, the ultimate decision on the extent of Congress'
power under the commerce clause will be made by the Supreme
Court. It's an issue they've ducked three times.
Mr. Takano. Okay. Is the rule flagrantly disregarding the
principles of federalism and usurping the rights of States?
Mr. Kopocis. No, it does not usurp the rights of the
States. The States have always been free to do whatever they
choose to do in addition under the Clean Water Act, and some
States have done so. They have more stringent requirements are
they apply State law to waters that are not subject to federal
jurisdiction.
The--I find it ironic that--when people talk about usurping
State powers, the Clean Water Act only restricts the ability of
people to pollute or destroy waters, so if States' powers are
being somehow usurped, it would be the power of the State to
destroy or pollute their own waters.
Mr. Takano. Well, Mr. Kopocis, you know, I've had the
privilege of being able to travel to many countries that are
extraordinarily beautiful, but I find that the management of
the water, whether it's near the ocean, whether it's near a
river or creek in a populated area can often be disappointing.
I will smell the waft of pollution, human pollution, and it
strikes me that one of the great things about our country is
the impressive reliability from community to community that we
can trust the water systems to actually not have to rely on
bottled water if we don't want to buy the bottled water. But in
America we have a tremendous trust in water from jurisdiction
to jurisdiction. That's my experience.
Thank you so much for your response.
Mr. Kopocis. Thank you.
Mr. Takano. I appreciate it.
Chairman Biggs. Thank you. The Chair recognizes the
gentleman from Virginia, Mr. Beyer.
Mr. Beyer. Mr. Chairman, thank you. Thank you all for
coming. I want to begin by just defending unelected
bureaucrats, also known as civil servants. You know, it's the
character of our governments at every level--state, local,
federal--that determines the quality of our lives, the health
of our economy, the health of our ranches, and these are our
police, our military, education, virtually every part, and
they're all unelected bureaucrats. And they fulfill the duties
and the obligations that we the Congress gives them or county
government, state government. So a government without unelected
bureaucrats is no government at all, and all we have to look at
the lawless ungoverned nations around the world right now and
think we don't want to live there. So let's be careful about
trashing these people. They are there to serve us.
And by the way, much as we like elected, it's sort of
difficult to imagine having elected Members of Congress or even
the county to determine what can happen on every given ditch or
river or land-use project.
I want to start off in line with what my friend Barry
Loudermilk did by asking you a yes or no question down the line
starting with Mr. Mehl. Do you believe it's important for the
American public to be able to offer their opinions like you are
today on the nature of federal oversight for our water?
Mr. Mehl. Yes, sir.
Mr. Beyer. Yes. Mr. Chilton, should there be public input
on this?
Mr. Chilton. There should be public input, but it's a local
matter, not a federal matter.
Mr. Beyer. Mr. Kopocis?
Mr. Kopocis. Yes, absolutely.
Mr. Beyer. And, Mr. Hopper?
Mr. Hopper. Yes.
Mr. Beyer. And I think that's what Mr. Loudermilk was
trying to point out, too, when he had the debate about social
media. That's why I was so dismayed when twice Republican
leadership tried to sneak into the appropriations bill language
that would suspend the comment period on the current
Administration's efforts to repeal the rule. And as you
suggested, Mr. Kopocis, there's nothing illegitimate about the
current Administration trying to change the rule as previous
Administrations have also. But we do believe the public
deserves to have a say on this, and Republican leadership
should stop trying to sneak in provisions to eliminate public
comment. I wanted to raise this issue to make sure that we all
have a chance to do this.
I also want to highlight that we're reviewing the Clean
Water Rule in the Science Committee, and naturally, the average
American would think that the Science Committee would be
weighing the scientific merits of the rule, but that's not what
we have today. We have a witness panel that doesn't have
scientists. We have administrative, legal, land management
experience, ranching experience, but the key thing to note is
that the Clean Water Rule was stayed by the courts, is now
waiting consideration by the Supreme Court. They just had an
oral argument. So it makes sense to have legal administrative
experts, but the rule was never put in place.
So let's just make the assumption that the arguments
against the never-enacted Clean Water Rule were justified and
that what we're hearing today are not just lobbyist talking
points relayed from industries that want to dirty our drinking
water.
Mr. Kopocis, you're the clean water expert here. And Mr.
Chilton said that the rule is overly burdensome and would
regulate the small dry washes on his estate, the dirt road they
want to put across. In his testimony he claims that the Clean
Water Rule does not respect private property. Is this true? Is
this your perspective?
Mr. Kopocis. No, I don't agree with that assertion.
Obviously, I can't speak to whether that feature he had in his
photograph was jurisdictional or not. It's very hard to say
from a photograph. I would say that the ability to construct a
road crossing on a small waterbody like that is authorized by a
nationwide permit by the Corps of Engineers. I don't know why
it would not have qualified for that on Mr. Chilton's ranch.
Mr. Beyer. Yes. I want to also highlight how drastically
different the Administrations have been on this--their
engagement on this issue. We only recently received Secretary
Pruitt's calendar thanks to a FOIA request by journalists and
something that was once very transparent in previous
Administrations. And now we know unequivocally that, unlike his
predecessor in the Obama Administration, Mr. Pruitt has done
very little engagement with anyone beyond industry hostile to
this rule. In fact, he appeared in a National Cattlemen's Beef
Association video as Secretary lobbying against the Clean Water
Rule, and now, there's an active investigation into whether
this action is a violation of his role as Secretary.
The Administration should be listening to scientists, not
industry that wants to dump or endanger our drinking water, and
that's why I led a letter with Ms. Johnson and Ms. Bonamici to
Chairman Smith asking that Mr. Pruitt testify before this
Committee. So we deserve answers for this concerning behavior
of ignoring science and focusing on industry lobbying. The
mission of the EPA is to protect the human health and the
environment, not work for industry's whims. And Mr. Pruitt is
still not confirmed to testify before our committee. We deserve
better.
Mr. Chair, I yield back.
Chairman Biggs. Thank you. And I appreciate all the Members
and their very interesting questions, but I most especially
express gratitude to our panel, very excellent testimony.
And the record will remain open for two weeks for
additional comments and written questions from the Members.
This hearing is adjourned.
[Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]
Appendix I
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Answers to Post-Hearing Questions
Answers to Post-Hearing Questions
Responses by Mr. Ken Kopocis
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Appendix II
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Additional Material for the Record
Statement submitted by EBJ
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Report submitted by Representative Colleen Hanabusa
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
*Visit https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf
to view the entire report.
Letter submitted by Representative Colleen Hanabusa
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter submitted by Representative Mark Takano
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter submitted by Representative Paul Tonko
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter submitted by Representative Paul Tonko
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter submitted by Representative Andy Biggs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter submitted by Representative Suzanne Bonamici
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Report submitted by Representative Suzanne Bonamici
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Letter submitted by Representative Suzanne Bonamici
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]