Bureau of Reclamation Banner

For The Record
Bureau of Reclamation
U.S. Department of the Interior
Before the
Natural Resources Committee
Subcommittee on Water and Power
U.S. House of Representatives
on
"New Federal Schemes to Soak Up Water Authority: Impacts on States, Water Users, Recreation, and Jobs"

June 24, 2014

The Bureau of Reclamation (Reclamation) submits the following statement in response to the Subcommittee's hearing titled "New Federal Schemes to Soak Up Water Authority: Impacts on States, Water Users, Recreation, and Jobs". We recognize the Subcommittee's interest in assuring that federal regulations do not adversely impact our environment and economy, and we welcome the opportunity to help foster a clear understanding of the recently proposed rule under the Clean Water Act (Act) and its potential impacts on Bureau of Reclamation activities.

On April 21, 2014, the Federal Register published the proposed rule from the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps)1 that is the subject of today's hearing. Titled the "Definition of 'Waters of the United States' Under the Clean Water Act", the proposed rule responds to widespread and longstanding uncertainty about the scope of waters regulated under the Act. As stated in the materials accompanying the proposed rule's release, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public have asked for nearly a decade that a rulemaking occur to provide clarity on the scope of federal jurisdiction under the Act.

While we will leave it to EPA and the Corps to discuss the details of the proposed rule, it is our understanding that the proposed rule is not designed to expand the Act's applicability beyond existing regulation; that it is not designed to cover groundwater; and that the rule does not expand the Act's reach to cover additional irrigation ditches or alter the existing water transfers exclusion, which are obviously of special relevance for Reclamation. For the purposes of Reclamation's water and power mission areas that are of interest to this Subcommittee, Reclamation shares the interest of our stakeholders in preserving our shared ability to operate and maintain facilities and deliver water and power. To that end, we are pleased that EPA and the Corps, for the first time, have included a proposed exclusion in the rule for ditches excavated wholly in uplands and draining only uplands, with less than perennial flow, including those that may carry groundwater. The significance of this detail is that ditches excavated for drainage purposes in uplands on agricultural lands are unlikely to serve their intended function unless they carry flow at least intermittently, so it is important that ditches with intermittent flow be eligible for the proposed exemption.

We are encouraged that the EPA and Corps are working with State and tribal partners to assure these voices are effectively represented during this rule-making process. We appreciate EPA and the Corps' efforts to improve clarity and preserve existing Clean Water Act exemptions and exclusions for agriculture. We also appreciate that the rule does not change, in any way, existing Clean Water Act exemptions from permitting for discharges of dredged and/or fill material in waters of the U.S. associated with agriculture, ranching and forestry activities, including exemptions for normal farming, silviculture, and ranching practices; upland soil and water conservation practices; agricultural stormwater discharges; return flows from irrigated agriculture; construction and maintenance of farm or stock ponds or irrigation ditches; maintenance of drainage ditches; and construction or maintenance of farm, forest, and temporary mining roads, where constructed and maintained in accordance with best management practices.

As the members of this Subcommittee know, EPA and the Corps have announced plans to accept public comment on the proposed rule through October 20 of this year. The Clean Water Act is over four decades old, with several instances of litigation over Congress's true intentions in passing the law, and we recognize the value in updated regulations to guide its implementation. Reclamation shares the interest of our stakeholders in preserving our shared ability to operate and maintain facilities and deliver water and power. As with the proposed rule, Reclamation will continue to participate in the interagency process in support of our collective interests, as the services work to finalize the rule.

Thank you for the opportunity to participate in today's hearing.



1 http://www2.epa.gov/sites/production/files/2014-04/documents/fr-2014-07142.pdf