Unofficial Statement







Wednesday, February 4, 2015















Washington, DC.

The committees met, pursuant to call, at 10:06 a.m., in Room


HVC–210, Capitol Visitor Center, Hon. Bill Shuster (Chairman of


the Committee on Transportation and Infrastructure) presiding.

Mr. SHUSTER. The hearing will come to order.




I want to first take the opportunity to welcome everybody here


today and especially our witnesses, Administrator McCarthy and


Secretary Darcy. Thanks for being here today.


And, again, welcome to the ‘‘waters of the United States,’’ the


proposed rule, on how it is going to work with State and local governments.


Before we get started, I would like to explain how we will begin


our hearing today. And, first of all, full disclosure: I have never run


a bicameral hearing today. So if I stumble and bumble a little bit,


please bear with me.


As I mentioned, on the House side, when the gavel went down,


everybody’s name has been logged in, and we will go in the order


of seniority if you were here at the gavel. The Senate will follow


with Senator Inhofe’s, Chairman Inhofe’s direction.


Opening statements will be limited to 5 minutes, and there will


just be four: both full committee chairs and both full committee


ranking members. Other Members wishing to make statements


may use their questioning time to do so, or they can have their


statements entered into the record.


There will be a single round of questioning on each panel. We


have two panels. The 5-minute rule will be strictly enforced. I have


a quick gavel hand, so when you hear me tapping, please wrap up.


Please try to watch.


Again, there is a lot of interest here today. There were 59 members


of our committee, which is the entire committee, who said they


will be attending today. I believe all the Senators also said, so potential


for 79 people to be here asking questions. So, again, I would


encourage you to watch the time so I don’t have to gavel you down.

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Again, Members will be recognized—we will be alternating between


the Senate and the House, Republicans and Democrats—


Senate Republican, House Republican, Senate Democrat, House


Democrat. That doesn’t sound like the way we worked it out. I will


figure it out as we go along.


OK. Again, as I mentioned, Members arriving for the gavel will


be recognized first, and those that arrived after the gavel will be


put in the queue.


Again, I want to thank Senator Inhofe and Senator Boxer for


agreeing to hold this bicameral hearing. Senator Boxer has experience


with this. We held a bicameral hearing in Los Angeles that


I took part in a couple years ago. So she is the pro at this.


As we all know, last April, the administration proposed a rule


that would expand the reach of the Federal Government under the


Clean Water Act. This proposal is troubling for a variety of reasons,


but I will sum up my biggest concerns.


The rule undermines the Federal-State partnership under the


Clean Water Act. This partnership is the basis of the act’s success


over the last 4 decades in improving our water quality. Let me repeat


again: Our water quality has continued to improve over the


last 4 decades. And Republicans as much as Democrats, people at


the Federal level as much as State and local, care about clean


water deeply. And that is a positive thing, that we have seen our


water continue to become cleaner and cleaner.


Many States and local governments, including my State of Pennsylvania,


are objecting to this erosion of the partnership and the


authority. This rule wrongly assumes that States and local governments,


including Pennsylvania, don’t know how or don’t care about


protecting the waters. And, as I mentioned, I think we all deeply


care about that.


And while the agencies has had an opportunity to develop a reasonable


rule, they instead chose to write the proposed rule vaguely


in order to give the Federal regulators free rein to claim Federal


jurisdiction over most any water or wet area.


This rule was developed by the administration without consulting


State and local authorities, without considering their rights,


their responsibilities, their liabilities, and their budgets, and without


realistically examining the potential economic and legal impacts


on agriculture and other stakeholders.


If this rule goes into effect, it will open the door for Federal Government


to regulate just about anyplace where water collects and,


in some cases, regulate land-use activities. This will cause serious


consequences for the economy. It will threaten jobs and result in


costly litigation. It will negatively impact businesses, farmers,


homes, road builders, and other job creators. And, most importantly,


it will negatively impact hardworking, middle-class Americans.


It will trample the rights of State and local governments and


their ability to make economic development decisions and, more importantly,


public safety decisions. It will restrict the rights of private


citizens to decide what they do on their own land.


Make no mistake, as I said, it will hurt the middle class, driving


up the cost of food, driving up the cost to own a home. And, again,


hardworking, middle-class Americans will be affected.

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This rule is an end-run around Congress and another example of


overreach by the administration. It was twice rejected by Democratic


majorities. It was twice rejected by the Supreme Court. This


proposal tries to force Federal control over the lives of our citizens,


and not all water needs to be subjected to Federal jurisdiction.


States should have primary responsibility for regulating waters


within their individual boundaries.


Instead of racing to pass down another Federal edict, these agencies


should collaborate with the States and local governments and


other affected stakeholders.


I am pleased that we are having this hearing today.


And, once again, I want to make note to my colleagues that the


5 minutes just expired and I am finished with my statement. So,


with that, I would now like to recognize Chairman Inhofe for an


opening statement.


[Mr. Shuster’s prepared statement follows:]******** COMMITTEE


INSERT ********

Senator INHOFE. Thank you, Chairman Shuster.




It is an honor to be here with our witnesses also.


I have a number of the same concerns that you do and that you


stated in your opening statement, which I will not be redundant,


but my concerns stem not only from the substance of the rule but


also from the thought process employed by your agencies in developing


it, I say to Ms. McCarthy.


And let me also make this statement too. The other day, Senator


Boxer and I, we remembered, recalled, that the Clean Air Act was


successful, that we were both in the House at that time, and we


both were cosponsors of the amendments of 1990, was it?

Senator BOXER. Uh-huh.


Senator INHOFE. And so we have had successes. But we have




some problems right now that we are looking at that do concern




First, I take issue with the fact that the proposed rule, if finalized,


would significantly expand Federal authority under the Clean


Water Act beyond what was intended both by the act and by the


amendments. Agencies can only carry out the authority that Congress


gives them; they can’t create it unilaterally. And that is what


I believe is happening now.


I am troubled by the fact that, for many years, the EPA and the


Corps have embarked on what seems to be a relentless quest to expand


the definition of ‘‘waters of the United States’’ and, therefore,


Federal authority under the Clean Water Act. This agenda has


been advanced in individual permit decisions by the Corps districts


across our country.


But the Supreme Court drew the line when you tried to claim jurisdiction


over isolated ponds and wetlands because birds could fly


there and again when you tried to claim jurisdiction over wetlands


adjacent to ditches and dry channels. The Supreme Court expressly


rejected broad assertions over regulatory authority and made it


clear that all water is not subject to Federal jurisdiction under the


Clean Water Act.


Instead of respecting these limits on your authority, you then


tried to memorialize the most extreme examples of bureaucratic

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overreach, first in the 2011 guidance document and now in this


proposed rule.


If this rule is finalized without change, few water bodies and, indeed,


few areas of land would escape the regulatory grip of the


Federal Government, an outcome the Supreme Court deemed unlawful


and impermissible.


We all remember what happened in other efforts legislatively.


They made an effort to try to change this and, at that time, take


the word ‘‘navigable’’ out. As I recall, that was Senator Feingold


and Congressman Oberstar. We defeated their efforts. In fact, they


were both defeated at the polls shortly after that.


So I think that this is an issue that certainly has everyone’s attention,


and I think it is really wise to have this first hearing. This


is the first time I remember in 8 years that we have had a joint


hearing, but it is that significant.


Now, granted, I am from a rural State, I am from a farm State,


and they are very much concerned, in an arid State like Oklahoma,


that we could end up with jurisdiction of the Federal Government


coming in and doing things that are very punitive. And we are


going to do everything we can to see that that doesn’t happen.


So I thank you for joining us and having this as a joint hearing




[Prepared statement of Senator Inhofe follows:]******** COMMITTEE


INSERT ********

Mr. SHUSTER. Thank you, Mr. Chairman.




And, with that, we will recognize Mr. DeFazio for an opening



Mr. DEFAZIO. Thank you, Mr. Chairman.




Broadly, we are here because I remember this, and many of the


Members sitting on this panel are old enough to remember this:


The Cuyahoga River actually burned. They used to have signs on


the bridges, ‘‘Do not throw lighted object from bridge. Flammable


object below.’’ That is good.


So, you know, we passed the Clean Water Act. Good start, based


strongly in 20th-century, mid-20th-century science. But Congress


has failed to revisit the Clean Water Act meaningfully since 1987.


Science has advanced. Our understanding of waters and their value


and their permeability over artificial boundaries between States


has grown during that time period. Yet Congress hasn’t acted.


The Supreme Court has. We have confusing, conflicting guidance,


a 4–1-4 decision by the Supreme Court. They basically begged Congress


to act or the agencies to clarify when they put forward that




Yet what we have had is, you know, we had the Bush administration


attempting to put forward guidance, 2003 and 2008. And


their guidance was said to be, quote, ‘‘a hodgepodge of ad-hoc and


inconsistent jurisdictional theories.’’ That was a comment by the


Farm Bureau at the time.


I think their guidance failed on two counts. One is to give us the


protections we need and, secondly, to give us the regulatory certainty


that the economy needs and those who are working in and


around waters of the U.S. Failed on both counts. I think there is


some agreement on that, yet last year the House passed a bill that

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would have locked us into the 2003/2008 guidance forever. No


changes could be made, no matter what was brought forward.


And that is what brings us here today. The issue is, was the rule


as proposed initially confusing? Yes. Did it raise concerns, tremendous


concerns? Yes. They have had about a million comments. The


question is, what has happened since? Has the Agency heard from


those million comments? Have they clarified? Have they modified


it? I hear they have and they are working on that, and yet there


are some who want to bring that process to a halt before it is mature.


If the Agency goes forward with a rule and it is not stopped by


Congress—Congress has many tools at its disposal, including the


60-day regulatory review process where, if it is found to be objectionable,


Congress can register its objections by overturning the


rule. Or we have other tools at our disposal.


But I believe we should let the Agency go forward. I believe they


have heard the concerns. I mean, I am going to be questioning on


the issues of ditches, on the issues of agriculture practices and


erosional features and those sorts of things. Have those things been




You know, I believe that, in acting, they need to do three things:


It should be conducted more transparently. They should post all


the comments that have been submitted. They should continue to


meet with stakeholders. The final rule should be guided by science


and the law. It should not expand Federal authority over waters


never before covered by this act. And, third, they need to move


quickly to end the confusion and the uncertainty and get the rule




So I think what we are here today is to figure out if they are on


that path or not. And if they are on that path, I believe we should


let them proceed. If they are not, then perhaps further action is




Thank you, Mr. Chairman.


[Mr. DeFazio’s prepared statement follows:]******** COMMITTEE


INSERT ********

Mr. SHUSTER. Thank you, Mr. DeFazio.




Now I will recognize Senator Boxer.

Senator BOXER. Thank you so much, Mr. Chairman, for this joint




hearing, where I think if everyone shows up maybe half the Congress


will be here. It is great for me to be with my House colleagues.


I served proudly there for 10 years. I have ultimate respect


for the House as well as, of course, for the Senate.


Mr. Chairman, as you know, I have been around a while. I have


never had a constituent of either party come up to me and say,


Barbara—or Senator Boxer, depending on how well they knew


me—Barbara, the water is too clean, you know, the air is too pure.


Never. On the contrary, they want their families protected. And


this goes for people of every party. And it has been kind of my


mantra for so many years to protect them.


And I want to remind folks that the Senate committee is called


the Environment and Public Works Committee, not the anti-environment


public works committee. And so my concern here today is


that we are focusing on the wrong thing. I want to focus on what


we need to do to keep our families safe.

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We heard eloquently from all my colleagues. Congressman


DeFazio reminded us that a long time ago, decades ago, the Cuyahoga


River in Cleveland was on fire. Lakes were dying from pollution.


Why do you think Congress, in the most bipartisan way,


passed the Clean Water Act? Because the people demanded it.


And, unfortunately, the beat goes on. Even with our landmark


laws—and my colleague is correct. We agree that the Clean Air Act


was successful. He doesn’t love it so much now, but he liked it


then, and I liked it then. And I think we need to keep on top of


the challenges.


Let me tell you one. Recent events in Toledo, Ohio, on the shores


of Lake Erie remind us that the battle to protect our Nation’s


water continues. Last summer, a half-million Toledo residents went


without drinking water for days because nutrient pollution washed


into Lake Erie, causing toxic algae to bloom. Because what happens


is what goes on upstream and flows into our recreational


lakes and our drinking water is what this rule is all about, how


do we protect that water.


Now, one in three Americans, 117 million people, get some or all


of their drinking water from water systems that rely, in part, on


small streams, including many that may not flow year-round.


The point is, what we do here—and I want to compliment the


Obama administration, represented ably by two fantastic women,


I might say—what they are doing is in the tradition of bipartisanship.


Because when you look back, defending our waterways from


pollution used to be bipartisan. The Reagan administration and the


George W. Bush administration defended the broad scope of the


Clean Water Act before the Supreme Court. And, for decades,


Members of both parties understood that wetlands, lakes, and


small streams are interconnected and water pollution must be controlled


at its source.


This is not hyperbole. I would not be here were it not for Republicans


in my State who support a clean environment. That is the




Now, I guess what I need to tell you is that a variety of stakeholders


support the proposed Clean Water rule. A September 2012


poll found that, regardless of political affiliation, 79 percent of


hunters and anglers favor restoring Clean Water Act protections to


wetlands and waterways, including smaller creeks and streams. A


2014 poll found 80 percent of small-business owners support protections


for upstream headwaters and wetlands in the proposed


Clean Water rule.


There has been a lot of misinformation. When I heard my colleagues


say, ‘‘Oh, my God, the Obama administration wants to protect


a puddle,’’ I thought, ‘‘That can’t be.’’ Well, it isn’t. You don’t,


at all. A puddle, swimming pools, stock ponds are not regulated.


We know that for a fact. And isolated ponds that were mentioned


by my friend, my dear friend Senator Inhofe, they are not involved


in this at all.


So let’s set aside fact from fiction. Let’s work together on a rule


that makes sense. So many people have spoken and given their


opinions. I have it in this testimony, which I ask unanimous consent


to include in the record.

Mr. SHUSTER. With no objection, so ordered.





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[The information follows:]******** COMMITTEE INSERT



Senator BOXER. And I am going to ask about some of their comments.




But it is time to restore much-needed certainty, consistency, and


effectiveness to the Clean Water Act and put our Nation back on


track toward clean and healthy waters for every one of our constituents.


Thank you very much.


[Senator Boxer’s prepared statement follows:]******** COMMITTEE


INSERT ********

Mr. SHUSTER. I thank the Senator.




And, again, it is my pleasure to welcome our first panel again.


Today, it is the Honorable Gina McCarthy, who is the Administrator


of the U.S. Environmental Protection Agency, and the Honorable


Jo-Ellen Darcy, Assistant Secretary of the Army for Civil




I ask unanimous consent that our witnesses’ full statements be


included in the record.


Without objection, so ordered.


And since your full statements are part of the written testimony,


I would ask you to limit your testimony today to 5 minutes.


And, with that, Administrator McCarthy, you may proceed.








Ms. MCCARTHY. Good morning, Chairman Inhofe, Ranking Member




Boxer, Chairman Shuster, Ranking Member DeFazio, and


members of both committees. I am very pleased to be here to testify


with Assistant Secretary Jo-Ellen Darcy to discuss EPA and


the U.S. Army Corps of Engineers’ proposed Clean Water rule.


Our goal in this rule is very straightforward. It is to respond to


requests from stakeholders across the country to make the process


of identifying waters protected under the Clean Water Act easier


to understand, to make it more predictable and more consistent


with the law and peer-reviewed science.


We believe the result of this rulemaking will be to improve the


process for making jurisdictional determinations under the Clean


Water Act by minimizing delays in costs, to make protections of the


Nation’s clean waters more effective, and to improve predictability


and consistency for landowners.


The foundation of the agencies’ rulemaking effort to clarify protections


under the Clean Water Act is the goal of providing clean


and safe water for all Americans.


Consider these facts about the value of clean water to Americans:


Manufacturing companies use 9 trillion gallons of freshwater every


day. Thirty-one percent of all water withdrawals in the U.S. are for


irrigation. About 40 million anglers spend $45 billion annually to


fish in U.S. waters. The beverage industry uses more than 12 billion


gallons of water annually to produce products valued at $58


billion. And approximately 117 million people get their drinking

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water from public systems that rely on seasonal, rain-dependent,


and headwater streams.


In recent years, several Supreme Court decisions have raised


questions regarding the geographic scope of the Clean Water Act.


In response to these questions as well as significant stakeholder requests


for our rulemaking, the agencies began developing a proposed


rule. The agencies’ proposed rule provides continuity with existing


regulations where possible. And we can reduce confusion and


transaction costs for the regulated community and the agencies as


we move forward with the final rule.


To that end, the agencies proposed specific categories of rules


that are and are not jurisdictional. The proposed rule also discusses


several regulatory alternatives that would reduce or eliminate


the need for case-specific evaluations and provide greater clarity.


Using the input from our discussions with the agriculture community,


EPA and the Corps are coordinating with USDA to ensure


that concerns raised by farmers in the agriculture industry are effectively


addressed in the final rule. The final rule will not change


in any way existing Clean Water Act exemptions from permitting


for discharges of dredged and/or fill materials into the waters of the


U.S. associated with agriculture, ranching, and forestry activities.


I also want to emphasize that farmers, ranchers, and foresters


who are conducting the activities conducted by the exemptions, like


plowing, tilling, planting, harvesting, building and maintaining


roads, ponds, and ditches, and many other activities, can continue


these practices after the new rule without the need for any approval


from the Federal Government.


Additionally, we expect to clarify for the first time in regulation


that groundwater is not subject to the Clean Water Act. The proposed


rule reduces jurisdiction over ditches and maintains the longstanding


exclusions of prior converted cropland and waste treatment


systems, including treatment ponds and lagoons.


In preparation for the proposed rule, the EPA reviewed and summarized


more than 1,200 peer-reviewed scientific papers and other


data, and the EPA’s Office of Research Development prepared a


draft peer-reviewed synthesis of public peer-reviewed scientific literature.


This draft report informed the agencies’ development of


the proposed rule.


The draft report itself underwent independent peer review, led


by EPA’s Science Advisory Board. And the final report was published


in the Federal Register on January 15, 2015. The final rule


will carefully reflect the SAB’s recommendations and all the data


and information presented in the final report.


We also want to emphasize that EPA responded to a request


from the Scientific Advisory Board to review the effectiveness in


basing the agencies’ proposed rule on the best available peer-reviewed


science, and that conclusion is also part of the docket and


supportive of this rulemaking moving forward.


So let me conclude by emphasizing my strong belief that what is


good for the environment is good also for farmers, ranchers, foresters,


manufacturers, homebuilders, small businesses, and everyone


in the United States. We all want clean water, and this rule

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will help ensure that we can identify the waters necessary to protect


with clarity so that all these activities can continue.


So I look forward to answering your questions.


[Ms. McCarthy’s prepared statement follows:]******** INSERT


1–1 ********

Mr. SHUSTER. Thank you, Administrator McCarthy.




And now I will recognize Secretary Darcy for her statement.

Ms. DARCY. Thank you. Thank you, Mr. Chairman.




Chairman Shuster, Chairman Inhofe, Ranking Member DeFazio,


Ranking Member Boxer, thank you for letting me testify today


alongside my friend and colleague Gina McCarthy.


We believe that the proposed rule provides the clarity, the consistency,


and the predictability that Members of Congress and the


regulated public have requested. It balances the protection of our


Nation’s aquatic resources while allowing fair and reasonable development.


Most importantly, our proposal is based upon science,


including a peer-reviewed report on connectivity and the recommendations


of EPA’s Science Advisory Board.


Under section 404 of the Clean Water Act, the Corps regulates


discharges of dredged or fill materials into waters of the United


States, including wetlands. Nationwide, the Corps makes final decisions


on over 81,000 permit-related activities and approximately


56,000 jurisdictional determinations annually, so efficiency is very


important to us as well as the regulated community that we serve.


The proposed rule is fully consistent with several Supreme Court


decisions regarding the Clean Water Act jurisdiction, specifically


the Riverside Bayview Homes, regarding adjacent wetlands; the


SWANCC decision, having to do with isolated water bodies; and


the Rapanos decision, which dealt with waters that are not navigable


in the traditional sense. It was in the Rapanos decision that


Justice Kennedy stressed the notion that waters that possess a significant


nexus to navigable waters could reasonably be made, so


are subject to Clean Water Act jurisdiction.


Based upon policy guidance that was promulgated in 2003 and


in 2008, we have been doing case-specific significant-nexus analysis


determination for many categories of nonnavigable streams and


wetlands. These determinations require extensive documentation,


fieldwork requiring significant resources and time.


Permit applications have on a regular basis—or, permit applicants


have expressed concern about how significant-nexus determinations


are being made. We have received comments from Congress,


business, industry, agriculture interests, scientists, other


stakeholders, and the public urging us to pursue a notice-and-comment


rulemaking. Chief Justice Roberts himself, in the Rapanos


decision, stated that the agencies would be in a better position if


they had conducted a notice-and-comment rulemaking.


As noted by the Administrator, the proposed rule retains much


of the structure of the Agency’s longstanding definition of ‘‘waters


of the United States,’’ including many of the existing provisions not


directly impacted by Rapanos and SWANCC. The agencies are not


proposing to substantively change the provisions of traditional navigable


waters, interstate waters, and the territorial seas.


For the first time, we are proposing a regulatory definition for


the term ‘‘tributaries.’’ Only those waters that flow into a tradi-

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tional navigable water, interstate water, or territorial sea are jurisdictional


as tributaries. We also propose that the term ‘‘adjacent’’


cover both adjacent wetlands and other adjacent water bodies.


These new definitions will significantly clarify what waters are


jurisdictional by rule using well-understood ecological concepts. For


some categories of waters, no additional site-specific analysis would


be required for certain adjacent waters.


Our decision to regulate by rule all tributaries and adjacent waters


and wetlands is based on our understanding that these waters,


alone or in combination with similarly situated waters in a watershed,


have a significant nexus to a traditional navigable water,


interstate water, or territorial sea. And this is based on the currently


available science.


By decreasing the number of jurisdictional determinations that


require a case-specific significant-nexus analysis evaluation, the


proposed rule is expected to reduce documentation requirements


and processing times for these.


The agencies propose for the first time to exclude by rule certain


waters and features over which the agencies have a policy to assert


jurisdiction, such as certain ditches. Waters and features that are


determined to be excluded from the jurisdiction will not be jurisdictional


under ‘‘waters of the U.S.’’


Over a million comments were received, as the Administrator indicated,


and we intend to consider each of those comments when


we develop the final rule.


And thank you. I see my time has expired. Thank you.


[Ms. Darcy’s prepared statement follows:]******** INSERT 1–2



Mr. SHUSTER. Thank you, Madam Secretary.




And, with that, again, we are going to go to questions. And the


way we are going to run it, again, is I will go to a Senate Republican,


Senate Democrat, then back to a House Republican and


House Democrat.


So, with that, I yield 5 minutes of questions to Chairman Inhofe.

Senator INHOFE. Thank you, Mr. Chairman.




Ms. McCarthy, when you first opened up, you said that you were


responding to the stakeholders across the country. And as I read


the statements from the stakeholders across the country, they all


seem to be on the other side of this. I would almost have to ask


you who you are referring to.


The Small Business Office of Advocacy states, ‘‘Advocacy advises


the agencies to withdraw the rule’’ and conduct a small-business


review panel prior to promulgating the rule.


And I would ask unanimous consent that that letter be placed in


the record at this point, Mr. Chairman.

Mr. SHUSTER. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Senator INHOFE. The Regulatory Flexibility Act requires the examination




of impacts of proposed rules. This is something that


wasn’t done.


Groups like municipal groups, the U.S. Conference of Mayors,


National League of Cities, National Association of Counties, Na-

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tional Association of Regional Councils—all of them are very much


on the other side.


Now, we are going to hear, I know, from our attorney general,


Scott Pruitt, and from others in the second panel, and I am anxious


to get to that second panel.


Let me make one comment, Mr. Chairman, that we are having,


right now, our confirmation hearing on Ash Carter to be Secretary


of Defense. I may have to be leaving from time to time for that purpose.


Ms. McCarthy, our attorney general, Scott Pruitt, believes that


your proposal exceeded your authority under the Clean Water Act


and points out in his testimony that the Supreme Court stopped


the Corps from regulating nonnavigable isolated intrastate water,


but your proposal would bring all of these under Federal control


because of use by the birds and animals.


Can you explain to us how the use of water by a bird or animal


can be a legal basis for regulating water under the Clean Water


Act, briefly?

Ms. MCCARTHY. Senator, it is my understanding that that is not




sufficient as a sole reason for jurisdiction. And that was indicated—

Senator INHOFE. All right. That is—


Ms. MCCARTHY. —by the Supreme Court. But that is not what




this rule intends to do or specifically does.

Senator INHOFE. All right.




Adam Putnam, the Florida Commissioner of Agriculture, says


that on farms in Florida there are low spots, ditches, irrigation


channels that capture, store, and carry water from rainfall.


Will your final rule make it clear that these features are not ‘‘waters


of the United States’’?

Ms. MCCARTHY. In this final rule, we actually reduce the jurisdiction




of the Clean Water Act relative to ditches by making clear


that there are a variety of other ditches that should be excluded


from jurisdiction.


And we do the best we can to explain those from erosional features,


but I will say that there has been a lot of comment that indicate


confusion there. And we are really looking forward to clarifying


that, because in no way do we intend to reduce the exclusions


or exemptions that are currently in the Clean Water Act.

Senator INHOFE. Thank you.




The EPA has described concerns about Federal control over fields


and industrial facilities, really any piece of land that is not flat, because


when it rains, that water runs downhill and forms drainage


features such as—and they declare that as a myth.


Now, this thing here is from Tennessee. It is a picture of a farmer’s


field in Tennessee. The State of Tennessee said it was a wetweather


conveyance. In other words, it only had moving water


when it rains. But the Corps called it a stream, subjecting it to


your proposed new regulation.


Do you agree with the Corps?

Ms. MCCARTHY. I am sorry, sir. I can’t, on the basis of a picture,




make a science determination.


Part of the reason to do this rule is to look at the current science


and to try to provide the clarity that people need so that the determinations


are clear, the reasons why are clear, and people can ac-

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tually do farming and agriculture and ranching with much more



Senator INHOFE. Ms. Darcy, was that an accurate representation




of your or the Corps’ comments?

Ms. DARCY. Yes, sir.


Senator INHOFE. All right.




And you also said in a press conference, you said that the increase—


talking about the President’s budget—the increase that


would be going to the Corps was linked to the proposed rule that


we are talking about today. Was that accurate?

Ms. DARCY. Yes.


Senator INHOFE. So if this proposed rule goes final, are you going




to need those additional resources to regulate more waters?

Ms. DARCY. We will need those additional resources to implement




the rule, sir.

Senator INHOFE. Thank you, Mr. Chairman.


Mr. SHUSTER. Thank you, Mr. Chairman.




And, with that, Senator Boxer is recognized for 5 minutes for



Senator BOXER. Thank you, Mr. Chairman.




I would like to place into the record letters that I have received


at the committee from over 1,000 groups from 44 States supporting


this proposal.


And I am going to read just some of them to give colleagues an


idea of the broad support this rule is receiving: America’s Great


Waters Coalition, American Fisheries Society, American Public


Health Association, American Rivers, American Sustainable Business


Council, Association of State Floodplain Managers, Great


Lakes Coalition, Outdoor Alliance, Outdoor Industry Association,


Rural Coalition, Society of Wetland Scientists, Southern Environmental


Law Center, U.S. Shorebird Conservation Partnership,


Waterkeeper Alliance, Alaska Independent Fishermen’s Marketing


Association, EPA Region 10 Regional Tribal Operations Committee,


the Alabama Rivers Alliance.


In California, just to name a few: the California Association of


Sanitation Agency, California’s water boards, the Golden Gate


Salmon Association.


In Colorado, a joint comment letter from 43 elected officials.


In Oklahoma, the Conservation Coalition of Oklahoma, the


Groundwater Protection Council, the Indian Country Agriculture


and Resource Development Corporation, a number of others.


In Oregon, a number, including the city of Portland.


In Pennsylvania, a joint letter from 74 Pennsylvania NGOs, a


whole list from Pennsylvania, including a Philadelphia resolution


in support of the rule, League of Women Voters of Pennsylvania,


and it goes on.


So I want to put those letters in the record, if there is no objection.

Mr. SHUSTER. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Senator BOXER. Ms. McCarthy, we have heard claims that many




waters would be regulated that are actually exempted from your



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So can you clarify? If you can do it with a ‘‘yes’’ or ‘‘no’’ or a


‘‘maybe.’’ And then if you say ‘‘maybe,’’ we will go into it.


Isolated puddles.

Ms. MCCARTHY. Exempted.


Senator BOXER. I can’t hear you.


Ms. MCCARTHY. I apologize. They continue to be exempt.


Senator BOXER. So isolated puddles are not regulated. Is that





Ms. MCCARTHY. That is correct.


Senator BOXER. Isolated ponds not connected to other waters, are




those going to be regulated under your rule?



Senator BOXER. Artificially irrigated areas, will they be regulated




under your rule?

Ms. MCCARTHY. No, Senator.


Senator BOXER. Reflecting pools and summer pools, will they be




regulated under your rule?

Ms. MCCARTHY. No, Senator.


Senator BOXER. What about water-filled depressions that are incidental




to construction, will they be regulated under your rule?



Senator BOXER. Jo-Ellen Darcy, do you agree with that?


Ms. DARCY. I do, Senator.


Senator BOXER. OK.




I would ask unanimous consent to place into the record a very


interesting press release from business leaders who support this


rule, the American Sustainable Business Council. So I would ask


permission to get that into the record.

Mr. SHUSTER. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Senator BOXER. And, finally, I wanted to talk about the many




comments that were received. Could you tell us how many comments


were received approximately? My understanding is about a


million, but I am not sure I am right on that.

Ms. DARCY. Yes. The last number I saw was over 900,000, so we




are talking nearly a million comments.

Senator BOXER. OK.




And I want to make sure, because Congressman DeFazio talked


about transparency. Have you extended the rulemaking time so


that even more people could get their comments in? And are these


comments open, and can we all read the comments?

Ms. DARCY. We extended the comment period this fall till—I




think the public comment period closed November 14th of 2014. We


had added an additional, I think, 45 days from the initial comment


period, so there was additional time given. Because the proposed


rule went out last spring.

Senator BOXER. And the comments will be published; is that correct?


Ms. DARCY. Yes.


Senator BOXER. For all to see?


Ms. DARCY. Yes.


Senator BOXER. Well, Mr. Chairman, you know, I am confused




because I think people are arguing against some mythical rule.

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And I do think the Obama administration has been very careful


not to overreach on this.


And we keep hearing about how this President issues more Executive


orders. Now, this is a rule, but, just for the record, President


Obama has issued fewer Executive orders than President Reagan,


both Bushes, President Clinton.


And I think this rule is an example of your ability—two leading


voices here, who have common sense. We don’t want to regulate a


puddle. That is ridiculous. That doesn’t hurt anybody. We want to


regulate a body of water that has pollutants in it and those pollutants


wind up in the drinking-water system in Ohio or California


or Pennsylvania or Oklahoma or Oregon or any other place.


So I want to just thank you so much.


And, again, Mr. Chairman, thank you for this opportunity.

Mr. SHUSTER. Thank you, Senator Boxer.




With that, I am up first. And the chairman’s prerogative, I am


going to go first to the gentleman from Ohio, the gentleman who


is the subcommittee chairman on Water Resources, also a farmer,


also the former chairman of the Ag Committee in the Ohio State


legislature. So he is not only a policy expert, he knows practically


what this means to farmers out there.


So, with that, I yield 5 minutes for questions to Mr. Gibbs.

Mr. GIBBS. Thank you, Mr. Chairman.




And just to clarify from some of the opening statements, everybody


in this room wants clean water and clean drinking water and


to protect the environment. But, unfortunately, this rule, as proposed,


doesn’t get us there, and we do need clarification. And I am


going to try to demonstrate that in a couple minutes.


Secretary Darcy, I want to start where we left off in my committee


last year. We were talking about the erosional feature, and


I actually gave an example on my farm, and you said that would


not be under ‘‘waters of the United States.’’


And I happen to have the same picture; it is just a little bit


smaller than Senator Inhofe’s, but I want to bring that up a little


bit. I won’t even ask the question. I will just start.


This is in Tennessee, like Senator Inhofe said. This was declared


a tributary of ‘‘waters of the United States.’’ This was declared a


‘‘waters of the United States.’’


Now, it looks like to me it is an erosional feature. OK? And


maybe it looks like to me it should be a grass waterway. But if


they are going to already make that—and the reason it was already


declared, because this landowner had to go get a permit. And


here is the permit. And they spent a pile of money getting through




Now, the problem is, when that kind of land feature or farm land


layer is declared ‘‘waters of the United States,’’ that means they


have to get a section 404 permit to fill that in or to put in a grass


waterway. They would have to get a 402 permit from the EPA if


they are going to spray herbicides or pesticides.


And this is where I think you go backwards a little bit. Because


if farmers are working with the Soil Conservation Service, trying


to do the right thing, like I did on my farm, but now, if it is already


declared ‘‘waters of the United States’’ by the interconnectivity


rule, the neighbors in that watershed are automatically declared

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that, so then they have to go get a 404 permit to fix that. And that


might take some time, it is going to overburden the agencies, and


I don’t think we are going to enhance the protection of the environment.


And so that is the first concern I have on that aspect. Then, if


you the Corps is going to declare that ‘‘waters of the United


States,’’ obviously, then, township road ditches are going to be declared


‘‘waters of the United States,’’ if you are going to declare an


ephemeral like that. So that is my first concern.


And then we have a second picture. This was done by an engineering


firm who are experts in this field, and this is the current


jurisdiction of ‘‘waters of the United States’’ on some property just


south of Ohio and Kentucky. You can see the creeks there in the


blue and some of the intermittent streams. There are 96 miles of


intermittent streams, 47 miles of perennial.


Then the next picture—hold that up—is what it would be under


the proposed new rule. We now have 384 ephemeral streams. And


that just opens it up to the whole thing and causes a lot of concern.


So that is where the agriculture community is really concerned.


So, you know, I think the pictures say what the issue is here.


And if you want to comment, Secretary, quickly, you can, because


I want to move on.

Ms. DARCY. I would just say, Congressman, that the picture you




showed earlier, similar to the one from Senator Inhofe, that it was


determined jurisdictional under the current rule; however, under


the proposed rule, it would not be jurisdictional.

Mr. GIBBS. OK. So we have your commitment that those wouldn’t




be in the—

Ms. DARCY. Under the proposed rule—




Ms. DARCY. —they would not be jurisdictional.


Mr. GIBBS. Administrator McCarthy, you put out a press release




today and said that 60 percent of the streams and millions of acres


of wetlands across the country aren’t clearly protected from pollution


and destruction. And you went on to say that your agencies


have proposed to strengthen protections to Clean Water. I thought


this was all about clarifying, not strengthening.


But I want to back up here, where you say clearly—aren’t clearly


protected. It is my understanding that the State EPAs have to,


every 3 years, submit a plan of action to your agency. And that is


where the—you know, the oversight and the guidance, and that is


what creates the cooperative federalism to work together.


So, when I read your press release, I would have to kind of assume


that maybe your agency is not doing what you are supposed


to be doing.

Ms. MCCARTHY. Well, Congressman, it is our intent in this rulemaking




to make sure that the confusion that has arisen from earlier


Supreme Court decisions are clarified. And I think it is incredibly


important that we minimize delays and we minimize costs associated


with the implementation of this rule, that we make our


protections more effective.

Mr. GIBBS. Well, I would also—


Ms. MCCARTHY. And we are going to do that by—





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Mr. GIBBS. Excuse me. Reclaiming time, let me go on. Let me go




back here, you know, to this example in Tennessee. Tennessee, on


stormwater and the picture we had, had actually more stringent


rules than what the EPA currently has. So they are doing their job.


And now you are going to add more cost, because they are going


to have to redevelop their plans, and it is going to add more cost.


And when you look at some of the 900,000 comments, a lot of


them are by Governors, majority of the States, and they question—


the process is inadequate. You did not consult the States, you did


not consult the State EPAs. They say that in their comments.


So, you know, this process is broken. You need to stop the process


and go back, and let’s start over.


I yield back my time.

Mr. SHUSTER. And, with that, I will allow the witness to respond




to that.

Ms. MCCARTHY. Well, I think we have been working very closely




with the States for many years, and it is, in fact, the States, as


well as stakeholders and the Supreme Court, who told us we needed


to go back and take a look at the science and make this on much


more sure footing in terms of what the science tells us today about


what waters are essential for protection.


But I would just reinforce the fact that I understand that everybody


here wants clean water. I also understand that the agriculture


community is sincere in wanting to have clean water but


also certainty that they can continue to farm and ranch and do the


silviculture that we all rely on.


That is what we are trying to clarify with this rule. That is the


predictability. That is how we are going to get better and enhance


our relationship with the States and our effectiveness as Federal



Mr. SHUSTER. Thank you.




And, with that, I would like to ask unanimous consent that the


permit that Mr. Gibbs had be submitted to the record.


So, without objection, so ordered.


[The information follows:]******** COMMITTEE INSERT



Mr. SHUSTER. And, with that, I recognize Mr. DeFazio for 5 minutes.


Mr. DEFAZIO. Secretary Darcy, as I understood your response to




this case in Tennessee, you said, because of what has been referred


to as the Farm Bureau view, the hodgepodge of ad-hoc and inconsistent


jurisdictional theories in the Bush rules, that was ruled, apparently,


as a wetland. But you are saying, under the new clarified


rules, it would not be. If it is a farming activity, it would be exempt.


Is that correct?

Ms. DARCY. That is correct.






So if we are stuck with the Bush guidance, then that farmer is


stuck with that ruling. If we move beyond the Bush guidance, that


farmer and other farmers would be exempt, given similar circumstances—

Ms. DARCY. Correct.


Mr. DEFAZIO. —with erosional features. OK. Excellent.





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You know, you have received a million comments. I assume that,


you know, as we heard, they are all going to be posted. They


haven’t been. I think that would be useful. You don’t have to post


108,000, 200,000, 300,000 identical postcards but at least an example


of one thing. There are 300,000 postcards like this. But it


should all be posted.


Now, have you listened? Are we going to have clarifications and


changes in the final rule, Administrator McCarthy?

Ms. MCCARTHY. Yes, sir.


Mr. DEFAZIO. OK. So we are going to have changes.




Mr. DEFAZIO. Has any member of this panel seen those proposed





Ms. MCCARTHY. Not as yet, no.


Mr. DEFAZIO. OK. Have any of the advocacy groups on either




side of the issues seen those proposed changes?

Ms. MCCARTHY. Not as yet, no.






So you are going to be responsive to concerns that have been


raised about ditches, about erosional features, and other major, you


know, consistent, persistent concerns that I have heard in this rule.


You are going to clarify. And you go on to say that, in fact, ditches


will be—there will be more clarification and exemption for ditches


than under the Bush rule.

Ms. MCCARTHY. That is correct.


Mr. DEFAZIO. OK. So why would we want to stop that?


Ms. MCCARTHY. I think one of the reasons to go to rulemaking,




which was a judgment that this administration made, was to listen


to all of the people who said that this is important enough. And


the transparency and certainty of the rulemaking process is what


we need. We put a proposal out specifically to generate comment—

Mr. DEFAZIO. Right. But the comment—


Ms. MCCARTHY. —to learn from that.


Mr. DEFAZIO. You will admit that the initial rule did create a




good deal of confusion.



Mr. DEFAZIO. You had to keep issuing statements saying, it




doesn’t do this, it doesn’t do that, it doesn’t do this, it doesn’t do




And then now people think—and please clarify this; this is a


major objection—that if you haven’t specifically exempted something


in this rule or with your clarifications, that everything else


is covered. Will you please clarify that that is not true?

Ms. MCCARTHY. That is not true.




And you are absolutely right; we are looking to provide more


clarity on the basis of the comments we received. We are not expanding


the jurisdiction of the Clean Air Act. We are not taking


away current exemptions. We were making an attempt to take a


look at the science and provide as much clarity as we could.


And we are going to listen to those comments, and we are going


to make changes in a variety of areas where the comments have


been very robust and clear, and we will respond to those. We are


intending to use this rulemaking process in the way we described

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it. We are going to protect what we need to; we are going to leave


alone what we don’t.

Mr. DEFAZIO. Former subcommittee chairman Bishop offered an




amendment last year which prohibited the rule from going into effect


if it expanded the authority over waters never before covered


by the act.


Do you have any problem with that? Would that affect this rule?


Are you covering waters never before covered?

Ms. MCCARTHY. We cannot expand the jurisdiction of the Clean




Water Act. We are simply trying to provide clarity in terms of what


that is with this rulemaking.

Mr. DEFAZIO. OK. So if we passed an amendment or statute that




said that, it wouldn’t affect this rule because you are not expanding


the authority.

Ms. MCCARTHY. We are not expanding the authority of the Clean




Water Act. We cannot do that.





Let’s get back to ditches. To Ms. Darcy, you mentioned roadside


ditches. All exempt?

Ms. DARCY. The particular exemptions in the proposed rule relate




to upland ditches, which are dry ditches going from dry land


to dry land. And I am going to have to check my notes here as to


the other specific exemption for ditches.


However, within the public comment period, we have had a great


deal of focus on ditches and how do we define those for possible further


exclusion. So we will be looking at the ‘‘ditches’’ definition in


the proposed rule as well as those recommendations of clarification


from the public.

Mr. DEFAZIO. You mentioned agricultural practices. How about




a quarry that creates a pool of water within the quarry because as


you mine down you hit the water table? Is that going to become



Ms. DARCY. The way you define it, it sounds as though it is an





Mr. DEFAZIO. It is groundwater that is bubbling up. It is not




flowing out.

Ms. DARCY. We do not regulate groundwater in this rule.


Mr. DEFAZIO. OK. And even though there is a pond or whatever




body of water within the quarry that was artificially created, not



Ms. DARCY. Not covered.


Mr. DEFAZIO. OK. Thank you.




Thank you, Mr. Chairman.

Mr. SHUSTER. That you, Mr. DeFazio.




Now, just to give you a heads-up on the lineup so people know


who is in the queue to ask questions—OK, the Senate just through


a curve at me.


First, we are going to go to Senator Barrasso, then Senator


Whitehouse. Then I am going to take my turn questioning, and


then Ms. Norton will be fourth.


So, with that, I recognize Mr. Barrasso for 5 minutes.

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




Ms. McCarthy, thank you for being here.

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I want to show you a map of the State of Wyoming, my home


State. And this states it was prepared by INDUS Corporation


under contract with the U.S. Environmental Protection Agency.


The map has at the bottom the symbols of the U.S. Geological Survey,


the EPA, and the U.S. Forest Service.


And this map depicts surface-water features in Wyoming, including


perennial, intermittent, and ephemeral streams, which are all


color-coded here. That means that everywhere in this map that


isn’t white is a potential ‘‘water of the United States,’’ requiring


communities, requiring ranchers, requiring small-business owners


to obtain costly permits to do any sorts of activities.


Now, Wyoming is a High Plains State. It is considered an arid


State. So I can’t understand how the EPA can determine with this


map that most of the State of Wyoming is a potential ‘‘water of the


United States.’’ I can only conclude that the Agency is counting


Wyoming land covered in snow during the winter.


In 2014, one of my constituents was threatened with fines of


$75,000 a day—$75,000 a day—for building a stock pond that the


Corps said was somehow connected to a ‘‘water of the United


States.’’ And under this map, the entire State of Wyoming would


be subject to threats of fines for even putting a shovel into the




So both Congress and the Supreme Court said that the Federal


control over water should be limited. This map proves this rule


would be doing exactly the opposite.


And that is why I will once again introduce legislation, working


with Chairman Inhofe, to stop this bureaucrat overreach. So I urge


my colleagues to once again join me in this effort with this legislation


impacting the ‘‘waters of the United States.’’


Now, Ms. McCarthy, in a March 27, 2014, hearing before the


House Appropriations Subcommittee on the Interior Environment,


you told Chairman Rogers that the EPA has, quote, ‘‘some mapping


in the docket associated with this rule that people can access at


this point.’’ You went on to say that there had been no mapping


before and that you had taken the opportunity to map water bodies


that you felt the Federal Government needed to protect.


Now, can you explain to me why these maps that you obviously


considered significant were never made available for public comment?

Ms. MCCARTHY. I am sorry, Senator. I think the maps that you




are holding up are maps that EPA has worked with both USDA


and Fisheries to take a look at water bodies across the U.S. They


were, as far as I know, not used to determine jurisdiction and not


intended to be used for jurisdiction. They are entirely different,


with different data sets. They were not used specifically for the


purpose that we are here to talk about, and they are not relevant


to the jurisdiction of the ‘‘waters of the U.S.’’

Senator BARRASSO. Well, you said there had been—your actual




quote is there had been no mapping before, there has been no certainty,


so we are identifying the rivers and streams and tributaries


and other bodies that science tells us is really necessary to protect


the chemical, physical, and biological integrity of navigable waters.


So I would say, then where are the maps that you are referring



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Ms. MCCARTHY. Senator, I don’t know what the specific quote




was referring to. But I do know that those maps were commissioned


to have a better understanding of waters across the U.S.,


which I am very happy my water office wants to do. But those were


not done specifically to inform this rulemaking, as far as I know.


And I was the decisionmaker on this proposal, and those were not


called to my attention in any way, shape, or form. And they are not


consistent with how we look at the jurisdiction of the Clean Water



Senator BARRASSO. So my question is this: If these maps don’t




show the scope of the waters protected, could your proposed rule


capture even more than what is on this Wyoming map and other


State maps? You know, more specifically, is this map, is this a ceiling


of what you intend to capture, which would be terrible, or is


this map a floor of what may be captured? Then this is actually


catastrophic for people all across the country. What is your—

Ms. MCCARTHY. It is neither of those. This proposed rule speaks




to what characteristics water bodies need to have in order to be jurisdictional.


Those are in no way related to the maps that you have


behind you.


And, again, we are not expanding the jurisdiction of the Clean


Water Act. We are not eliminating any exemptions or exclusions


from the Clean Water Act in this proposal. We are in fact narrowing


the jurisdiction of the Clean Water Act, consistent with


sound science and the law.

Senator BARRASSO. So if you are not going to use these maps, can




you commit to me and to this committee that the final rule will


rely on actual field observations to identify Federal jurisdiction as


opposed to EPA and the Corps establishing Federal jurisdiction


over Wyoming’s water from your desks in Washington using some


other tool?

Ms. MCCARTHY. This proposed rule actually identifies what we




believe should be jurisdictional, what we believe should not be jurisdictional,


and then, on a case-by-case basis, you make determinations.

Senator BARRASSO. Thank you, Mr. Chairman.


Mr. SHUSTER. Thank you, Senator.




With that, we will go to Senator Whitehouse.


Hold it a second. Somebody else is—

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


Mr. SHUSTER. Hold on 1 second, Mr. Whitehouse. We are operating




on your side under Senate rules, so I have to defer to Mr.


Inhofe. And I believe that since Mr. Cardin is senior, he gets the


5 minutes now.


Mr. Cardin?

Senator WHITEHOUSE. Works for me.


Senator CARDIN. I think there will be virtually no difference between




Senator Whitehouse and my view on the work being done by


EPA on the ‘‘waters of the U.S.’’


So let me first, though, welcome the Administrator and thank


her very much.


The Administrator knows my concerns for the Chesapeake Bay.


All of our stakeholders have been involved in cleaning up the bay.

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The Clean Water Act is a critically important part of everyone


working together.


The headwaters are critically important to the efforts, and our


farmers are making a real effort to help us clean up the bay. Our


developers are making efforts. Our local governments, private sector—


all working together in a collaborative way to deal with the


challenges of the Chesapeake Bay, the largest estuary in our hemisphere.


The concern is, if we don’t deal with the headwaters, it is a huge


problem. Now, before the Rapanos decision, I think it was pretty


clear as to what was regulated waters and what were not. The


Rapanos decision put that in question. And then there was a desire


for clarification.


Congress should have acted. Congress did not. The opponents of


these rules didn’t really want Congress to act. And now we need


regulation, and they are saying there is confusion, but they are


fighting regulation.


So I just really want to give you a chance to tell us what these


regulations are all about. Are we trying to do something different


than we have done in the past? Or are we trying to have clarity


on waters that affect water qualities in bodies of water such as the


Chesapeake Bay, that we have sensible definitions for what is included—


but it seems to me you have gone to an extreme, to exclude


those areas that may be of concern. Which, quite frankly, I think


you probably pulled it back further than we had before the


Rapanos decision.

Ms. MCCARTHY. Well, thank you for a few minutes.




First of all, thank you for your commitment to Chesapeake and


other beautiful areas that are so important to us.


This rule is really about responding to the confusion that has


arisen over the years. And it is a conversation we have been having,


frankly, for decades.


And what we really need to do with this rule is to clearly explain


what waters the Clean Water Act was intended to protect. And


those are waters that are most important to protecting drinkingwater


supplies, that are most important to protect us from flood


damage, that are most important in many different ways for both


fishing as well as the recreational opportunities that we all enjoy.


And so we have used the opportunity to spend many years looking


at the science, telling us what waters we need to protect, so


that we can minimize our focus and our resources in areas where


it is not critically important.


So this rule is about clarifying what is in, about maintaining the


examinations, in fact, expanding the exemptions based on what we


know now on the science, and making it abundantly clear so that


people can go about their business with more clarity and more certainty.


We won’t have to spend the resources. Stakeholders won’t have


to spend the resources. But, frankly, this is all about the science.


They told us, the Supreme Court told us, get the science right. And


we are doing that with this rulemaking.


Clearly, there is work to do between proposal and final. We are


up to this task. And one of the reasons to do this with a rulemaking


instead of guidance is to gather the information we need

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to get it right. And we will.RPTR HUMISTONEDTR


HOFSTAD[11:04 a.m.]

Senator CARDIN. You have given some clarity, some detail in the




regulation. As you pointed out, it is open for comment right now—

Ms. MCCARTHY. It is.


Senator CARDIN. —so people who have concerns can express




those concerns.


And in our conversations with EPA, we have seen a willingness


to make sure that is a very open process. You want to be judged


by the best science, but you want to make sure you get it right.


Now, you have given a lot of detail. So if people have questions


about the details, it is up to them now to comment, is it not? Isn’t


this an open process?

Ms. MCCARTHY. It is. And if you look at the comments, you




know, nobody is going to say, I think you got it all right or all


wrong. They are very good, substantive comments.


And so when we raised issues of did we get the definition of


‘‘tributary’’ right, did we narrow it appropriately—we looked at how


do you define ‘‘adjacent waters.’’ We set up ideas for how to do that.


We solicited comments on alternatives. We tried to narrow where


the uncertainty was, limit the amount of case-by-case analysis that


would need to be done. And we teed up these issues specifically to


get these comments.


We have had over 400 meetings, met with 2,500 people, had a


local government advisory committee going across the U.S. We are


doing what we need to get this right.

Senator CARDIN. I will just make one final comment, if I could,




and that is, there needs to be action.



Senator CARDIN. If Congress wants to pass a law, fine. If not, we




need to have regulation on clarity. That was very clear from the


Supreme Court decision. And I thank you very much for carrying


out the responsibility that you have by proposing these regulations.

Ms. MCCARTHY. Thank you, Senator.


Mr. SHUSTER. Thank you, Senator.




Now I will recognize myself for 5 minutes for questions.


First, Administrator McCarthy, did you say on that map that


Senator Barrasso put forth that you weren’t aware of that map?

Ms. MCCARTHY. No, not specifically. I was made aware of it after




last summer.

Mr. SHUSTER. OK. Well, that is a huge concern of mine, that the




Administrator—and it is not just the EPA; it is all these departments


across the Federal Government. The political appointees


don’t get the real information from folks down below. When these


laws come out, they are significantly changed and interpreted in a


different way.


And, you know, my good friend talked about the mythical rule.


Well, but history shows us that it is mythical to have a view that


the EPA or the Corps is not going to interpret these things in a


much different way as we go down the road. So that is the huge


concern we have here today. There is a lot of uncertainty for all


of us.

Ms. MCCARTHY. Well, Mr. Chairman, I—


Mr. SHUSTER. Well, let me finish.





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Ms. MCCARTHY. Oh, I am sorry. I apologize.


Mr. SHUSTER. My good friend from California, she had a list.




Well, I want to give you my list, and it is 34 States: Colorado,


Georgia, Maine, Michigan, Missouri, Montana, New York, Ohio,


South Carolina, Tennessee, Wisconsin, Wyoming, Arkansas, Alabama,


Arizona, Iowa, Indiana, Pennsylvania, on and on. There are


34 States that oppose and want this revised or oppose and withdraw.


That is a real list of people that have to deal with these, and


that brings us to why we are here today.


And the question is, why haven’t we included the States in this?


And why do we have 34 States, two-thirds of the States, saying, revise


or withdraw? They oppose with a revise or oppose and withdraw.


Can you answer that question?



Mr. SHUSTER. About the States.


Ms. MCCARTHY. Mr. Chairman, the States have been very actively




involved in this and other issues. In fact, the States wrote


to us and said, stop using guidance, get to a rulemaking process.


The only thing I am asking this joint committee is to take a look


at how we are going—have we proposed this, the robust outreach.


The comments we have received, you say two out of three don’t like


everything? Two out of three gave us robust comments that will inform


the final.

Mr. SHUSTER. I have—


Ms. MCCARTHY. This is a partnership with the States that we




are going to maintain.

Mr. SHUSTER. Two out of three want this—they oppose this with




significant revisions, and almost half the States, 22, say they want


you to withdraw it.

Ms. MCCARTHY. It depends on who you are talking to, Mr. Chairman.


Mr. SHUSTER. I don’t believe you are consulting, and the States




aren’t full partners in this, in this rulemaking. And it is based


upon what they are telling us.


Also—it was mentioned in Mr. Gibbs’ questioning—I wanted to


know if both of you would commit to explicitly stating in the rule


that erosional and ephemeral features on farm fields are exempt


from the regulation. Are you willing to put that in the regulation?

Ms. MCCARTHY. We have actually made a very good attempt to




identify those erosional features, not—

Mr. SHUSTER. That doesn’t sound—


Ms. MCCARTHY. No, no—


Mr. SHUSTER. That sounds to me like—


Ms. MCCARTHY. We have maintained the exemption, and we are




trying to explain it more so that people will have more certainty.

Mr. SHUSTER. That sounds to me like that an ‘‘attempt,’’ you are




‘‘trying’’ to—when the rule goes in and it is that vague, as it trickles


down to the middle management of the EPA or the Corps, over


the years, this is where the reach is going to come from. This is


what the farmers, this is what the developers, this is what people


that do things around this country, this is what they are concerned


about. And this rule I do not think makes it clear.


Another question.

Ms. MCCARTHY. Mr. Chairman, we will clarify—





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Mr. SHUSTER. Let me ask one other question. I will let you answer







Mr. SHUSTER. You can answer any way you want to.




Mr. SHUSTER. Are we defining navigable waterways as tributaries?




We are going from navigable to tributaries; that is sort of


what my understanding is of the rule.



Mr. SHUSTER. Is that actual?


Ms. MCCARTHY. Actually, we are helping to apply the Supreme




Court’s understanding that navigable waters include tributaries.

Mr. SHUSTER. OK. So water, doesn’t it eventually, maybe it takes




years and years, but doesn’t it eventually seep into bigger bodies


of water that are navigable under today’s definition?

Ms. MCCARTHY. I think that is the challenge, is for us to recognize




what tributaries are significant contributors enough that they


can impact navigable waters.

Mr. SHUSTER. So you would say that in a farm field that was




shown earlier, there is water laying there; eventually, 2 years, 10


years, 20 years, it eventually seeps into navigable waters. Is that


true or not? I am not a scientist, so I am asking the question.

Ms. MCCARTHY. The science establishes connections, but it is on




a gradient. And what the Supreme Court made clear to us and


what this rule attempts to do is to identify only those that could


significantly impact the physical, chemical, and biological integrity


of downstream waters. So just because you are connected, it does


not mean you are jurisdictional.

Mr. SHUSTER. But it could mean it does.


Ms. MCCARTHY. If that connection is significant for drinkingwater





Mr. SHUSTER. That is the basis why I believe these 34 States are




opposing this rule. That is why my colleagues believe—and what


Mr. Cardin said. I think it is time for Congress to act. I think it


is time for us to come forth and help to clarify the rule, because


there is no doubt it needs to be clarified.


And I do not believe that this rule is going to clarify it. It is


going to make it vague. And I would predict, if this rule goes into


effect, 5, 10 years down the road, it will cost working and middleclass


Americans more to buy homes, more to buy food, because of


the EPA and the Corps and the regulations that they are putting


out there, making it far more difficult for them to do their work.

Ms. MCCARTHY. Mr. Chairman, I am sorry that I interrupted you




earlier. I just—

Mr. SHUSTER. That is all right.


Ms. MCCARTHY. —wanted to let you know that I understand this




confusion between tributaries and erosional features. We are going


to tackle that confusion head-on.

Mr. SHUSTER. I appreciate it. And I am sorry I got exercised, but




this rule is of great, great concern to me, my constituents—

Ms. MCCARTHY. I appreciate that.


Mr. SHUSTER. —and 34 other States.


Ms. MCCARTHY. I appreciate that.





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Mr. SHUSTER. So, with that, I recognize Ms. Norton for 5 minutes.


Ms. NORTON. Thank you, Mr. Chairman.




And I do want to say you, Administrator McCarthy and Secretary


Darcy, in less than an hour of testimony, you have already


exploded some of the major myths surrounding the rule.


And I want to say that we already know that our roads and our


transit and our underwater infrastructure and our ports are falling


apart. Congress is letting it happen as we speak. Please spare us


our clean water.


Mr. Chairman, I want to ask that a letter from the Department


of the Environment of the District of Columbia be included in the




Mr. Chairman? I ask that a—

Mr. SHUSTER. I am sorry about that.




With unanimous consent, so ordered.

Ms. NORTON. Thank you.




[The information follows:]******** COMMITTEE INSERT



Ms. NORTON. I have a question that is fairly representative, I




think, of urban jurisdictions around the country.


Administrator McCarthy, as you know, because we appreciate


that you came out to the District of Columbia to tour our own efforts


to revise our stormwater overflow system, these systems


around the United States are often a century or more old, and they


are being remodeled, I must say, with almost no Federal help.


Now, these rules are being criticized both for being too vague and


too broad. For myself, I think rules ought to have some breadth,


particularly in this area where we are dealing with the waters of


the United States of America in the most diverse landmass in the




So this is my question, and I apologize because it is particular.


I am trying to find out whether the kind of work we are doing and


is being done all over the United States with stormwater overflow,


under the rule, would include piped sections of streams in the definition


of ‘‘tributary.’’


As you know, many of these pipes run under tributaries, and if


they are required to go through the permitting process for municipal


stormwater, then, of course, there would be considerable delay


and considerable cost.


My question really goes to clarification. I think the way the rule


is structured I don’t have any criticism of, but I want to clarify


whether or not such underwater, don’t-see-the-daylight streams,


pipes under streams, would need to be permitted.

Ms. MCCARTHY. Thank you. And I am actually glad you raise the




issue because there has been some confusion about this.


And let me be very clear that EPA has not intended to capture


features as you described them that have already been captured in


what we call MS4 permits, which was part of, I think, what you


and many other urban areas are concerned about. It is our intent


to continue to encourage and to respect those decisions and to also


encourage water reuse and recycling, which very much is consistent


with the Clean Water Act and our overall intent.

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I would also mention green infrastructure. It was never our intent



Ms. NORTON. So does that mean that the projects to repair these




under water would be subject to—

Ms. MCCARTHY. No. It means they would not.


Ms. NORTON. —to permitting?


Ms. MCCARTHY. It means we are trying to make very clear in the




final rule, working with these urban areas that have these issues,


what features that are involved in the capture of stormwater in


urban areas, what features would be specifically not jurisdictional


under the Clean Water Act, because people are concerned that it


doesn’t have the specific clarity.


We will build that in. They will not be jurisdictional. And we will


be outlining those with much more specificity just to avoid any additional



Ms. NORTON. Thank you for that clarification.




I yield back, Mr. Chairman.

Mr. SHUSTER. I thank the gentlelady.




And, with that, I now recognize Senator Crapo for 5 minutes for




And just a heads-up, Mr. Whitehouse. I assume you will be next,


as long as no Senator more senior to you comes in, so stay on your



Senator WHITEHOUSE. Stand by.


Senator CRAPO. Thank you much, Mr. Chairman.




And, Administrator McCarthy, welcome here to the hearing. I appreciate


your being here and our conversations that we have had


privately about this regulation.


As you know, I am one of those who is very, very concerned


about the regulation. And the concern I have is that, as we have


gone through now several Supreme Court cases trying to provide


some clarity on what the actual jurisdiction of the agency is over


the Clean Water Act, it has become clear that the word ‘‘navigable’’


is in the statute and that the courts intend to insist that that be


the definition and the nexus of what we are trying to deal with




It seems to me that where the agency is headed in interpreting


what the Supreme Court has required, however, is beyond what I


read as the Court’s approach.


And what I am asking you is this. In the case in which—excuse


me. In the Rapanos case, the four-Justice plurality held that, to be


subject to the Clean Water Act, water must be relatively permanent


surface water. There was a concurring opinion by Justice Kennedy


that said that water must have a significant nexus. And then


there were four Justices who dissented, who would have applied a


broader jurisdiction based on intertwined ecosystems.


Am I correct about that legal analysis?

Ms. MCCARTHY. I hate to play lawyer, especially here, but I understand




the point you are making, and it is very challenging.

Senator CRAPO. I think that is a fair general explanation of




where we were.


And, as I see it, where the agency is heading right now is to


identify significant connections between intertwined ecosystems, in


essence. And if that is the case, then it appears that the agency

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has flipped the Supreme Court case and is essentially pursuing the


rationale of the minority and the dissenting opinions.


And I would just like you to comment on that.

Ms. MCCARTHY. Well, let me be clear what our intent was, and




hopefully that intent is reflected in the proposal.


We are trying to be very clear. And I think the one thing that


everybody did agree to on the Supreme Court was that the definition


of ‘‘navigable’’ is not the traditional one, and so we had to do


a better science job at defining the connections between these upstreams


and downstreams that would have a significant—potentially


a significant impact on navigable waters.


So we tried really hard to basically use the science to further define


what we knew, based on science, would be the types of waters


that would be in. We tried to make sure that we proposed additional


exemptions or exceptions where we could based on science.


And then the third area was where we were looking at what are


the other waters.


But you are absolutely right that the challenge for us is to look


at individual tributaries and adjacent waters but, also, to look at


where we may have systems that, because of their geography and


function, may work as a system.


So it is challenging, but we tried not to make assumptions there,


as opposed to propose a number of alternative ways to try to narrow


this case-by-case resource—

Senator CRAPO. Well, let’s take a—because we have run out of




time very quickly in this, let’s take a specific example.



Senator CRAPO. Evaporation. If water can evaporate from a relatively




arid area after a rainstorm and by evaporating and going


into the clouds and then ultimately raining on a navigable water


or an ocean, does that mean that the water is navigable?

Ms. MCCARTHY. It has to have a connection to downstream that




is certainly more than evaporation. It has to be a significant connection


where that water supply or that water body, wetland, or


system would be able to significantly impact and degrade the


downstream waters.

Senator CRAPO. But I guess the question is, is evaporation is significant?


Ms. MCCARTHY. No. No, sir.


Senator CRAPO. Would the agency conclude that the evaporated




water that went—

Ms. MCCARTHY. No, sir.


Senator CRAPO. —that could have rained on a navigable water




was significant?

Ms. MCCARTHY. No, sir.


Senator CRAPO. So you are saying that would not be a jurisdictional




claim under the rule.

Ms. MCCARTHY. No, sir. It would not. And we tried to make this




very clear, specifically for ditches. We tried to make this very clear,


but we know there is additional work that needs to be done.

Senator CRAPO. Well, what about—let’s go to the—well, not the




reverse, but another example. What about water that seeps into


the groundwater from a ditch or from a puddle or a rainstorm and


then, eventually, over time, moves through the groundwater and

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ends up in a navigable river? Is that going to be a jurisdictionally


claimed significant connection or nexus?

Ms. MCCARTHY. Well, groundwater is not regulated under the




Clean Water Act, but it can be a—establish a connection between


upstream and downstream. It can be.

Senator CRAPO. So I am hearing you say, yes, it could be.


Ms. MCCARTHY. Well, there are conditions that you need to look




at, sir. But, again, it doesn’t need to just be connected; it needs to


be a really significant connection sufficient to warrant Federal jurisdiction.

Senator CRAPO. I see my time is up.


Mr. SHUSTER. I thank the gentleman.




And we have Senator Whitehouse, 5 minutes.

Senator WHITEHOUSE. Thank you very much, Chairman.




It is kind of interesting, we seem to have two hearings going on


here, one on a mythical rule that would regulate any place where


water collects or most any water or any wet place and doesn’t consult


with States and local officials, and then this actual rule, which


is in the middle of a very robust Administrative Procedure Act


process with millions of comments and a very active role taken by


the States.


With respect to the latter hearing on the actual rule, I would like


to ask unanimous consent that a letter from Rhode Island’s Trout


Unlimited, along with the Massachusetts Trout Unlimited, and a


letter from Rhode Island Attorney General Peter Kilmartin, along


with several other attorneys general, in favor of the actual proposed


rule be entered into the record.

Mr. SHUSTER. Without objection, so ordered.


Senator WHITEHOUSE. Thank you.




[The information follows:]******** COMMITTEE INSERT



Senator WHITEHOUSE. Ms. McCarthy, in Rhode Island, as you




know, we take the health of Narragansett Bay very, very seriously.


And, as you know, we have spent an enormous amount of effort


and money to protect Narragansett Bay, specifically through the


combined sewer overflow project, which is the biggest public works


project in Rhode Island’s history, all to protect the bay. As a result,


our current threats to the bay primarily come from nonpoint




How frequent a problem around the country are nonpoint sources


at contributing to water pollution?

Ms. MCCARTHY. Well, point-source pollution—we have, I think,




done a good job at regulating point-source pollution. Then, by comparison,


it continues to be one of the more challenging issues.

Senator WHITEHOUSE. And return flows from irrigated agriculture,




for instance, would qualify as a nonpoint source.

Ms. MCCARTHY. Return flows from irrigation would actually be




exempt under the Clean Water Act.

Senator WHITEHOUSE. Well, that is precisely my point.




Return flows from irrigated agriculture could well contain fertilizer,


pesticides, chemicals, manure, all of the above?

Ms. MCCARTHY. It could, sir, but it is not regulated under the




Clean Water Act today, and it wouldn’t be under the proposal.

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And one of the good things about working with the agriculture


community is I recognize that they are taking great efforts to both


conserve land where it can help as a filter for those pollutants, but


they are also looking at erosional features. Because it is essential


to not have runoff for a couple of reasons, not just because it


spreads pollution potentially, but it is also important to keep soil


on the land enriched.


And so there are many efforts that are underway with USDA


and EPA to enrich that relationship and partnership and to recognize



Senator WHITEHOUSE. But it is clear and it is a matter of record




that this rule would allow pesticides, fertilizers, manure, and other


types of runoff to come off of return flows from irrigated agriculture,


to flow through ditches that have less than perennial flow,


and to allow leakage from settling basins all to go into our waters.

Ms. MCCARTHY. The Clean Water Act exempts stormwater from




agriculture from regulation.

Senator WHITEHOUSE. Irrespective of whether it is carrying pesticides




and other fertilizers, manure and other contaminates.

Ms. MCCARTHY. There is. But, as I indicate, I think there are




many programs that seek to make sure that those issues are resolved


in a collaborative way with the agriculture community, and


I am confident we can expand those partnerships.

Senator WHITEHOUSE. Yeah. I just want to make the point that




no rule is perfect.



Senator WHITEHOUSE. And there are arguments, frankly, on both




sides. And for those of us who have vital bays—Chesapeake Bay is


another one that Senator Cardin just talked about—where the


greatest vulnerability is nonpoint-source pollution, then the failure


of this proposal to deal with that will have environmental consequences.


Which isn’t to say that I am going to oppose it, because I think


the perfect doesn’t necessarily always have to be the enemy of the


good. But hearing the criticism about the extent of the regulation,


at least when not imaginary, causes me to raise the concerns on


the other side, that this will allow a significant amount of contamination


to flow into waters that we would otherwise want to see protected.


And, with that, I will yield back my time.

Mr. SHUSTER. I thank the Senator.




And, with that, the next three up, just to give you a heads-up,


we will go next to Mr. Hanna, then Ms. Johnson will be after that,


then Senator Capito after that.


So I recognize Mr. Hanna for 5 minutes.

Mr. HANNA. Thank you, Chairman.




And thank you both for being here.


It strikes me this conversation is not really about clean water.


It is absurd to suggest that anybody here or in this country isn’t


interested in that. And the 36,000 farms that are in New York certainly


are vested in that, and I have complete confidence in the


New York State DEC.


For me, when you talk about this and you say to us we have


nothing to worry about and it is based on science, I think the fun-

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damental concern is, what do you mean by ‘‘science’’? And the subjective


nature and the kind of flow of this conversation is more


around the fact that people don’t believe it, that people are uncomfortable


with whatever outcome you might produce, because, frankly,


no one trusts big agencies and big government. And where I


live, we don’t need—you know, the theme would be, we don’t need




So how do you separate that distrust, moving forward, to come


up with a rule that is based on science, knowing the subjective nature


and the suspicion that, with all due respect, because we are


all—and Mr. DeFazio did a great job of laying out the concerns


that people have. They are legitimate, they are real.


And the pushback you feel is not a function of people who aren’t


interested in having a great outcome. It is a function of people not


trusting the process, not trusting the rule, not being comfortable.


It is a huge credibility gap that I am concerned that, no matter


what you do, you can’t get through that. And yet I would like to


believe that the outcome will be in the direction that you want it


to go.


But, saying that, I am perfectly comfortable with New York State


and what we have going on now.


With that, I would just give you a chance to speak to that.

Ms. MCCARTHY. Well, let me just say that, first of all, I really




appreciate your raising this issue, because you are not wrong. I


think we have a communication challenge.


We did a very good job on the science. And it wasn’t us; it is scientists


all over the country and, frankly, the world who have


looked at this issue. But the current situation is, at least as we


have been told by all of the stakeholders and the States, untenable.


Because it takes too long, it costs too much money, there is no predictability,


there is inconsistency across the U.S., and, as a result,


we are overprotecting in some areas and under in others.


And so we are trying very hard to bring certainty to make the


situation better. And you are not wrong that we have received a


lot of comments that said we didn’t get it right, and they are really


concerned about whether we are going to listen to those comments.


And what I would ask you is to look at the history of EPA in


terms of how we are listened—we listen to comments that have


come in. This is a robust dialogue with the States. This is not just


criticism; it is dialogue back and forth. And the proof will be in the


pudding, which is, does the final rule clarify this? That is how rulemaking


works. I want to get to that.

Mr. HANNA. I couldn’t agree with you more. The difficulty is people




don’t trust the agency. People don’t believe what—generally,


they are concerned. The 36,000 farmers in New York, in my district,


they are in somewhat of a panic. Now, you could say to me,


there is a lot of misinformation, wrong information. So what you


said it true; the proof is in the pudding.


I am deeply concerned that we—the notion of government overreach


and the Federal Government impugning all this on a State


like New York that does a great job is not only not helpful but not


necessary and adds a degree of additional burden that people are


going to always reject. And I don’t blame them.

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Ms. MCCARTHY. Senator, I just don’t want to overstate our—




leave the impression that we have not received tremendous support


for this rule. Because I don’t think—I think that is correct. We


have received both tremendous support and comments that question


whether or not we got it right. But you have to remember that


folks like the Association of State Wetland Managers have actually


written in support of the rule. They are trying to make it better.


What should be untenable to this body is leaving the uncertainty


on the table today that is costing everybody time and money.

Mr. HANNA. I think some of the absurd things that we have seen,




like we saw on the photograph, you really have to push back on


that, if you can. And if it is real, I think that also has to be addressed.


But thank you very much for being here.

Ms. MCCARTHY. Thank you, sir.


Mr. SMITH. I thank the gentleman.


Mr. HANNA. I yield back.


Mr. SHUSTER. And, with that, we go to Ms. Johnson, 5 minutes




of questions.

Ms. JOHNSON. Thank you. Thank you very much, Mr. Chairman




and Chairman Inhofe and Ranking Members Boxer and DeFazio.


In my home State of Texas, the EPA estimates that upward of


11.5 million Texans receive some of their drinking water from some


of the small streams and wetlands that could be protected by the


proposed rule.


This is important to all of our communities, and that is why I


would ask unanimous consent to enter into the record a letter from


25 State elected and local elected officials and another letter from


25 NGOs in support of the rule.

Mr. SHUSTER. I am sorry. What—


Ms. JOHNSON. I ask unanimous consent—


Mr. SHUSTER. Without objection, so ordered.


Ms. JOHNSON. Thank you.




[The information follows:]******** COMMITTEE INSERT



Ms. JOHNSON. Administrator McCarthy, your agency has been




criticized on the science used to support the agency’s rulemaking,


including the science behind protecting clean water in this proposed




However, last month, the EPA’s Office of Research and Development


completed the ‘‘Connectivity of Streams and Wetlands to


Downstream Waters’’ report, which noted that the scientific literature


unequivocally demonstrates that streams, regardless of


their size or frequency of flow, are connected to downstream waters


and strongly influence their function.


Mr. Chairman, I would like to ask unanimous consent again to


make a summary of this report available to the record.

Mr. SHUSTER. Without objection, so ordered.


Ms. JOHNSON. Thank you.




[The information follows:]******** COMMITTEE INSERT



Ms. JOHNSON. And, in addition, EPA solicited input from EPA’s




Science Advisory Board, the SAB, on this report before it was final-

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ized, and the SAB completed its review of the agency’s draft report


in October of 2014.


Again, Mr. Chairman, I ask unanimous consent to include a letter


from the SAB to EPA that outlines the board’s recommendations


and advise that—in this hearing record.

Mr. SHUSTER. Without objection, so ordered.


Ms. JOHNSON. Thank you.




[The information follows:]******** COMMITTEE INSERT



Ms. JOHNSON. I would like to read, Ms. McCarthy, some excerpts




from these documents and ask for your comments.


First, in commenting on the connectivity report, the SAB finds


that the review and synthesis of the literature described in


‘‘Connectivity of Streams to Downstream Waters’’ reflects the pertinent


literature and is well-grounded in current science.


In addition, the connectivity report notes that the scientific literature


strongly supports the conclusion that incremental contributions


of individual streams and wetlands are cumulative across entire


watersheds, and their effects on downstream water should be


evaluated within the context of other streams and wetlands in the




Now, Ms. McCarthy, I am not a scientist, but it appears that the


scientific literature supports the broad protection of rivers and


streams as a necessity to protect the downstream water quality


and quantity, as well as a host of other benefits, such as flood control,


aquifer protection, and habitat protection.


Can you comment on the connectivity report and whether this


science supports what your agencies are proposing as part of this


Clean Water protection rule?


And then, secondly, are there areas where the Science Advisory


Board review of this report urged the agency to change the report


to reflect the best available scientific information on protection of


clean water?

Ms. MCCARTHY. Thank you for raising the question.




As I indicated in some of my opening statements and beyond, I


am very proud of the work that the agency did to develop the


science that the Supreme Court asked us to look at so that we


could have a more certain and secure way of determining what waters


were jurisdictional and necessary to protect.


Our Office of Research and Development looked at 1,200-plus


peer-reviewed scientific literature. They also conducted their own


peer-reviewed process. It was also peer-reviewed by our Science Advisory


Board. I think the science is very strong.


The real question is, how well have we reflected the science in


the rule itself? And I think the Science Advisory Board was very


supportive of what we did, but we need to make sure that we look


at comments and know all of the nuances that are in the outside


world and we are cognizant of those as we draft the final report.

Ms. JOHNSON. Thank you very much.




I think my time has expired.

Mr. SHUSTER. I thank the gentlelady.




It is now my pleasure—I didn’t know I get to do this this soon—


to recognize my former colleague, the Senator from West Virginia,


Ms. Capito, for 5 minutes.

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Senator CAPITO. Thank you, Mr. Chairman.




And thank you all for being with us here today.


Administrator McCarthy, first of all, I would like to say, living


in the Kanawha Valley in Charleston, West Virginia, we suffered,


a year ago, a catastrophe in our drinking water. And I know you


are well aware of it. I would like to thank the EPA’s help in trying


to mitigate that disaster.


But I would caution all my colleagues here, don’t take your clean


drinking water for granted. I know we don’t. But it has a lot more


ramifications than just putting the tap on and being able to have


a nice glass of water.


So thank you for that.


One of the more alarming provisions, I think, that I am concerned


about in the State of West Virginia is the authority over


lands that are wet only—and I have heard some of the conversation


before—when it rains, called ephemeral streams.


My concern is that ‘‘ephemeral’’ appears over 75 times in your


preamble to the proposed rule, yet it is not clearly defined. And it


says it is a stream—and your connectivity report defines ‘‘ephemeral


stream’’ as a stream or river that flows briefly in direct response


to precipitation.


Well, I have a map that the EPA created, and it is a high-resolution


map of the streams of West Virginia. Here it is. You really


can’t see it too well, but it is the green and the blue. It is basically


covering the entire State, which is designated streams and waters.


So, in West Virginia, we have a lot of land, as you know, that


is not flat, so when it rains the water runs downhill. We have more


real streams per square mile than any other State, which I think


a lot of the larger States would find remarkable.


But this map, that is almost totally covered in color that was


done by the EPA to show water, does not even cover any of the


ephemeral drainages. And if you bring these so-called ephemeral


waters into the rule—and I noticed in your statements that you are


going to try to exempt that—I think it really brings a lot of confusion


and uncertainty.


And so, I guess, this is unacceptable in a State like West Virginia.


You can’t let the whim of a particular Corps or EPA employee


decide which private property is now federally regulated.


I have another picture of a gully here. I call it a West Virginia


gully, but is it a West Virginia gully or is it an ephemeral stream?


We have yet to figure that out, and how can you tell.


So I guess I would ask from you a commitment, a solid commitment,


that the final rule will not take control over these ephemeral


streams that are ill-defined and, for a State like ours, could have


great impact.

Ms. MCCARTHY. I just dropped my pen. Sorry.




First of all, thank you, Senator, for the thank you. And my heart


goes out to West Virginia, and it did during the spill and beyond.


So thank you for working with us on that, and I was happy to be


able to help.


On the ephemeral-stream question, I think people may not be


aware, but ephemeral streams are often found to be jurisdictional


today. And so the intent of this rule was to try to provide much


more certainty on the basis of the science so that we could be clear-

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er about what streams are important to protect and what were not


as important and wouldn’t have a significant impact on those


downstream waters that we are seeking to protect.


You have my absolute word that we are going to try to narrow


what we are claiming jurisdiction over so that we are consistent


with the law and the science and we are as clear as possible about


what is in and what is out.

Senator CAPITO. Well, I think that is going to be a bureaucratic




nightmare for you and, thus, a bureaucratic nightmare for anybody


who is trying to get a definition. Because, as you know, these are


millions of these all throughout probably our State and across the


country. And it is exceedingly important.

Ms. MCCARTHY. I think—


Senator CAPITO. The other question, if I could ask one more




question real quickly, much of our manufacturing is small and medium-





Senator CAPITO. You know, the last thing a small or mediumsized




manufacturer or business needs to get caught up in is a bureaucratic


maze of, am I registered, am I not? How are you going


to mitigate that?


And I would sort of echo what one of my colleagues said. The


trust factor here with your agency is not as good in our State as


I am sure we would all like it to be. And that is a real question


I have from my employers in the State.

Ms. MCCARTHY. Well, we have done an extensive amount of outreach




to the small-business community, and we feel obligated and,


actually, honored to be able to spend a lot of time with them.


There are a lot of small businesses that have written in in support


of this rule for the very reason you are talking about, is they


rely on clean water, and sometimes their voice isn’t as loudly


heard. So we have brought them into the system. We have some


great comments, and we will resolve these issues and make this


more certainty.


Because the last thing a small business needs to do is ask questions


about their obligation when we could have spoken more clearly


in the rule to tell them what their obligation was. I don’t want


to waste their time and money, nor ours and others’, and I think


we can do a better job.


It is a difficult process, but we will work with the small-business


community, and we will make sure that we eliminate confusion as


best we can.

Senator CAPITO. Thank you.


Mr. SHUSTER. I just want to point out that the question was




asked before about these ephemeral features, and you still haven’t


declared that you will exempt them. I don’t know how we are going


to make it more consistent and put certainty out there if you are


not willing to do those types of things.


Second question, just a quick—were you aware of that map of


West Virginia and all the color that was there? It appears as


though the entire State of West Virginia—

Ms. MCCARTHY. It was hard for me see, but, again, Senator,




we—I mean, Congressman, we have not—

Mr. SHUSTER. No, don’t do that.





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Ms. MCCARTHY. Chairman.


Mr. SHUSTER. They will get upset if you—


Ms. MCCARTHY. Chairman. Chairman. How about if I say ‘‘chairman’’?


Mr. SHUSTER. People on both sides of the Capitol will get upset




if you call me a Senator.

Ms. MCCARTHY. Yeah, yeah. I will get in deep trouble.




Again, if that is a map similar to the one that Senator Barrasso


raised, that has nothing to do, as far as I know, with any decision


concerning jurisdiction of the Clean Water Act.

Mr. SHUSTER. That answer really concerns me, but we will go on




to Mr. Webster for 5 minutes.

Mr. WEBSTER. Thank you, Mr. Chair.




And thank you all for appearing today. I am over here on your



Ms. MCCARTHY. Oh, thank you.






And I am from Florida. Florida is basically a wetland. If you dig


down about a foot and a half just about anywhere you are, it is a


wetland. And so you can have these maps, but our map may be the


entire State, in some cases, if we thought about it.


I serve three counties. One of those is named Lake County. It


has thousands of lakes. They are all interconnected with all kinds


of canals and other things that could be above water, above the


surface, could be below. And, again, because of the aquifer being


so close to the top of the ground level, a lot of the flows happen




So I think the big concern that I am hearing, especially from our


agriculture community, is maybe some nondefinitive words. And


those words mean a lot.


So I was looking at the economic analysis, which, in there, in


several places, it says that the agencies project that the proposed


action to change the definition of ‘‘waters of the U.S.’’ would increase


assertion of the CWA. So the jurisdiction is going to increase.


I mean, you have said that several times in this report that


was done jointly by the EPA and the Army Corps.


But inside that, these words were what disturbs most of the people


in my area that have contacted me, and that is it says that it


is not—these things, these examples of these cost estimates and so


forth are not definitive but merely illustrative.


The fear is this. The fear is that maybe the data is incomplete


because the scope is not fully determined within this proposal, in


that the scope could increase just on a whim. And I think that is


the fear of these words that are used, especially the one that just


says ‘‘merely illustrative.’’ That is a scary statement, as opposed to


something definitive.

Ms. MCCARTHY. Let me try to explain it, because I totally appreciate




the fact that you are right, words do matter, and explaining


this better will be hopefully what we are able to do.


First of all, relative to the idea that the economic analysis indicates


that we are going to get more water into the system of Federal


regulation, it doesn’t change the jurisdiction of the Clean


Water Act. And, in fact, what we have tried to do is narrow the


applicability here based on sound science.

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But the most important thing to remember is that we wouldn’t


be here if there weren’t confusion about what is in and what is out.


And when we took a look at in practice what is happening, we believe


that this will clarify it, and some of the waters that are essential


to protect for drinking water and other resources will end up


being better protected.


The word ‘‘illustrative’’ is the one I want to explain most, is this


is a jurisdictional rule, and because it is a jurisdictional rule, it


doesn’t have a direct and immediate impact where we can estimate


the economics, for example, like other kinds of rules that directly


impact industry and set standards.


So the reason why we say it is illustrative is that it is all about


whether or not somebody wants to pollute or destroy a wetland,


and, if you do, there are costs associated with that. But what we


are trying to do is reduce the cost and time to ask the question


about what is jurisdictional so, if you actually do want to pollute


or destroy a wetland, you have a better idea of what needs a permit,


what doesn’t, and how go about getting that defined.

Mr. WEBSTER. OK. Well, and I appreciate that answer. All I will




tell you is ‘‘merely illustrative’’ is not as good as definitive. And if


that can change, I would very much appreciate it, because there


are just fears out there when you see words like that.


Thank you very much. I yield back.

Mr. SHUSTER. I thank the gentleman.




With that, recognize Mr. Cummings for 5 minutes of questioning.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.




Ladies, it is very good to see both of you.


And, Administrator McCarthy, it was good to be at EPA a few


weeks ago. I want to thank all of your employees for what they do


every day and both of your employees for trying to make our environment


safer and cleaner.


Let me begin by saying that one of my highest priorities is supporting


the restoration of the Chesapeake Bay. Restoration of the


bay has been and will continue to be a long-term project.


Furthermore, our work is made easier because we know what is


harming the bay. The Chesapeake Bay is one of if not the most


studied water bodies in the world. We understand in great detail


how nitrogen, phosphorous, and sediments enter the bay from runoff


that flows across impervious surfaces through eroding urban


streams and aging storm sewers and across farm fields. We understand


how the discharges that are produced by wastewater-treatment


facilities and that leach from septic systems flow into the bay.


We also understand the impact of the atmospheric deposition.


We do not need more studying. We need to stop the inflows of


pollutants harming the bay, and we need to ensure that we have


clean water throughout the Nation.


And I just have two questions, Administrator McCarthy.


Under section 303(d) of the Clean Water Act, the EPA has encouraged


some States to put into place total maximum daily load.


Maryland and other States in the Chesapeake Bay watershed have


led that charge. What gains do States like Maryland and, by extension,


the Chesapeake Bay watershed stand to receive from an updated


‘‘waters of the U.S.’’ rule?

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And my second question is: The Chesapeake Bay region has for


decades been working to identify and address ongoing sources of


pollution to the bay. How does this proposed rule affect these efforts?


Has the current confusion surrounding the scope of Clean


Water protections complicated these cleanup efforts?


And I will listen for your answer.

Ms. MCCARTHY. Well, first of all, thank you for coming to EPA




and for your congratulations and thanks to the staff, who are working


very hard.


First of all, let me thank you for all the work that Maryland and


others have done on TMDL. Let me explain to you what I think


the benefits of this rule are.


We are faced with significant uncertainty at the moment, which


means that people are asking sometimes questions that take a long


time to answer about whether or not something is an important


water to protect, whether if they intend to pollute it or destroy it


in some way, what process they need to go through. And so people


are focusing their resources sometimes and money on areas where


they don’t need to look, and they are missing areas that are significant


in terms of our ability to protect clean water and safe water


for everyone.


So this is an ability to try to look at the science, cut through


some of that uncertainty, focus people where the attention ought


to be focused, allow our agriculture community to farm and allow


folks to ranch and do all of the work that is so important to us,


but also make sure that we are focusing on the waters that we


really need to protect. It will save everybody time, everybody


money, and it will also be respectful of what the law requires us


to do and the science is telling us is most important.

Mr. CUMMINGS. And, you know, one of the things that Senator




Cardin talked about is that—and we find it a major problem in


Maryland; I am sure they find it throughout the United States—


is the trying to make sure that our farming community is protected


and, at the same time, trying to make sure that we keep our water




You talked about it a little bit, but, I mean, tell us a little bit


more about your interaction with the Secretary of Agriculture. And


how do we strike that balance?

Ms. MCCARTHY. Well, the USDA and EPA have been working




hand-in-hand in terms of understanding the concerns of the agriculture


community so we can better address those concerns in a


final rule.


We are working closely, as you know, with how we align what


we need to do to protect water, especially beautiful resources like


the Chesapeake, and how does USDA craft programs that work


with the agriculture community to support conservation efforts, to


support the building of buffer zones that connect as filters that can


protect water quality.


And so we are working hand-in-hand to understand what we


need to do to ensure that this is clear so that the agriculture community


recognizes that the exemptions in the law are indeed protected,


that they recognize that this rule is all about narrowing the


jurisdiction of the Clean Water Act based on what science is telling


us is important and not important, and that we continue to work

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hand-in-hand with them so they can produce the food, fuel, and


fiber we all really rely on—

Mr. CUMMINGS. Thank you very much, Mr. Chairman.


Ms. MCCARTHY. —and do it in a way that is certain.


Mr. CUMMINGS. Thank you.


Mr. SHUSTER. Thank you very much.




And just to give everybody a heads-up, we are going to go to Senator


Boozman next and then Senator Sullivan, Congressman


Massie and then Congresswoman Napolitano.


So, with that, I recognize for 5 minutes Senator Boozman.

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




Thank you for being with us, Administrator McCarthy.


I am concerned that the EPA is putting out misleading information


to justify its efforts to take control of almost all the water in


our country away from State and local communities’ jurisdiction.


Last summer, EPA’s Water Administrator posted a blog on your


agency Web site explaining which ditches the EPA wanted to control.


The blog described such ditches as, quote, ‘‘generally those


that are essentially human-altered streams which feed the health


and quality of larger downstream waters,’’ end quote.


And I would ask unanimous consent that this be included in the



Mr. SHUSTER. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Senator BOOZMAN. Also, you used the connectivity report to justify




this power grab. And it has a graphic where the only example


of a ditch is an altered natural stream.


The EPA is clearly trying to convince Americans and Arkansans


that this is no big deal and not a massive increase in Federal jurisdiction.


However, your proposed rule goes far beyond human-altered


streams when it comes to regulating ditches and other channels


and water conveyances built by people.


I would really ask three things.


First of all, will you commit to us that your final rule will actually


match the rhetoric that the agency is coming out with, posted


on such things as the Water Administrator’s blog?


Specifically, will you commit that the only artificial channels that


would be jurisdictional under the final rule will be channelized natural




And, lastly, I want to clarify, I don’t mean streams that were


channelized historically. Constitution Avenue, a major road in


Washington, D.C., used to be Tiber Creek. Potentially, your final


rule could make the curbs along Constitution Avenue into federally


controlled waters of the United States.

Ms. MCCARTHY. Senator, I am glad you brought up the issue of




ditches, because the proposal actually expands exclusions to the jurisdiction


of the Clean Water Act. It doesn’t cut jurisdiction. And


I can explain that, but let me go right to the heart of the matter.


What we are really most concerned about are ditches that are actually


channelized tributaries, that actually were tributaries and


look and smell and taste like them. The other issue, though, however,


is that there are ditches that are directly connected to the


tributary system that actually have the flow and the duration in

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them, where they have features that are consistent with how we


define tributaries.


So there are those two concerns that we need to address in the


final rule more clearly, but we are doing our best to indicate what


is in and what is out. And we, in fact, have very clearly reduced


what we are considering to be the jurisdiction under the Clean


Water Act in this proposal. And I can explain that if you would like


me to take the time.

Senator BOOZMAN. So you are committing that the only artificial




channels that would be jurisdictional under the final rule would be


channelized natural streams?

Ms. MCCARTHY. I think there is a flow component here that I




want to make sure that I don’t miss.


What is happening today is that, if you construct a ditch in dry


land and it flows less than intermittent, it is excluded. What we


are trying to say and what we have said in this proposal is that


ditches constructed in dry land and flow less than perennial would


be excluded. So it expands the exclusion.


So there is a flow component that needs to be considered.

Senator BOOZMAN. Along a separate issue, will you commit to




Congress that your final rule will not regulate groundwater or


groundwater withdrawals that affect flows to surface waters?

Ms. MCCARTHY. Groundwaters are exempt from jurisdiction




under the Clean Water Act, and we—

Senator BOOZMAN. Groundwaters or groundwater withdrawals?


Ms. MCCARTHY. Both. We are not impacting groundwater withdrawals





Senator BOOZMAN. OK.




Thank you, Mr. Chairman.

Mr. SHUSTER. Thank you.




I now recognize Senator Sullivan for 5 minutes.

Senator SULLIVAN. Thank you, Mr. Chair.




Administrator McCarthy, nice to meet you here. I look forward


to working with you, meeting with you and your staff in a respectful




As you can imagine, in Alaska, we have a lot of concerns. We


love our environment—most pristine environment in the world.



Senator SULLIVAN. We are really good at taking care of it, the




State is, our people are. But Alaska is also home to 63 percent of


the Nation’s water subject to Clean Water Act jurisdiction and 65


percent of the Nation’s wetlands. So, as you can imagine, this is a


very big deal for the people I represent, many of whom oppose this




The Resource Development Council in Alaska believes, looking at


this rule, that it could expand that already-incredible jurisdiction


in Alaska by a third.


So I just want to ask a few important questions to start out with.


As you know, Ms. McCarthy, the EPA is a creation of Congress,


and all regulations promulgated by the EPA must have a substantial


basis in the law. Do you agree with that?

Ms. MCCARTHY. Yes. The regulations should reflect what is in




the law. Yes.

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Senator SULLIVAN. So one request I had, kind of going forward,




is a commitment, out of respect for this committee and the Members


of Congress, from you and your staff that any action, any regulations


going forward, that every time you are testifying, that you


or your staff specifically point out the specific provisions of the law


that you are acting under, whether it is action or regulation.


Will the EPA commit to doing that in the future?

Ms. MCCARTHY. I am sorry, Senator. I don’t exactly know what




you are asking—

Senator SULLIVAN. But just—


Ms. MCCARTHY. —me to commit to. But, certainly, we will—


Senator SULLIVAN. A regulation like this—




Senator SULLIVAN. —when we start out—




Senator SULLIVAN. —come to the committee of Congress that has




jurisdiction and say, here is the exact provision in the statute that


gives us the power to promulgate this reg.

Ms. MCCARTHY. We make it clear, when we propose a rule, what




the actual rule language is and how it changes. And we certainly


discuss what the law says and our interpretation of the law—



Ms. MCCARTHY. —and how the regulations are consistent.


Senator SULLIVAN. Great.




So let me get to a little bit of the specifics on this regulation. So,


just in terms of chronology, how I understand it, the Clean Water


Act defines ‘‘waters of the U.S.’’ Several Supreme Court cases—Riverside,


Rapanos—defined it, further limited it.


In May 2009, the EPA came to Congress, urged Congress to expand


the jurisdiction of the Clean Water Act to the furthest extent


possible. And, from my perspective, that is so far, so good. When


you want to expand the jurisdiction of the EPA, you have to do it


through the Congress, not through regulations.


Congress didn’t do this. And, in the meantime, the EPA was sued


by several States on a Clean Air Act regulation, and the Supreme


Court reprimanded the EPA for what it viewed as a significant


Federal overreach in terms of separation of powers in the Utility


Air Regulatory Group v. the EPA.


Did you have an opportunity to read that case, the Supreme


Court case?

Ms. MCCARTHY. Yes, I did.


Senator SULLIVAN. So there was a provision in that Supreme




Court case where the Justices said the ‘‘EPA’s interpretation is also


unreasonable because it would bring about an enormous and transformative


expansion in EPA’s regulatory authority without clear


congressional authorization. When an agency claims to discover in


a long-extant statute an unheralded power to regulate a significant


portion of the American economy, we typically greet its announcement


with a measure of skepticism. We expect Congress to speak


clearly if it wishes to assign to an agency decisions of vast economic


and political significance.’’


I am quoting that because I think that is exactly what is happening


here, a significant expansion of EPA jurisdiction over the

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U.S. economy, over certainly my State, and I don’t think that the


Congress has authorized that authority to the EPA.


So I will just be a little bit frank. I don’t even think this is a


close call. I don’t think the EPA has the power to issue this regulation


under the Constitution and the statute. I think you are trying


to change the statute, and that clearly is a power that belongs to


the Congress.


So I want to work with you on this, but I want to request that


you withdraw this regulation, start over. There are 22 States that


have made a similar request. And I think that that is an important


way that you show respect not only to the States but to Congress.



Ms. MCCARTHY. Senator, I very much respect Congress as well




as your opinions, and I will do my best to work with you. I would


say that I don’t think the Agency is in any way seeking congressional


action or otherwise to expand the jurisdiction of the Clean


Water Act. What we are just trying to do here is to better define


that in a way that everybody can be more sure of its implementation


and we can save everybody time and resources.


And I know this is a big issue in your State, Senator, and I am


happy to sit down with you. I think we worked very hard to align


ourselves with a good government in Alaska, and we are trying to


continue that partnership. And if there is anything that we can do


to address your issues more specifically, I would enjoy working


with you on it.

Senator SULLIVAN. Well, I look forward to working with you as





Mr. SHUSTER. The gentleman’s time is expired.


Senator SULLIVAN. Thank you.


Mr. SHUSTER. Thank you, Senator.




And, with that, just to give everybody the lineup, we are going


to go to Congressman Massie, then Napolitano, then Meadows and


Edwards, in that order.


So we have 5 minutes for Mr. Massie.

Mr. MASSIE. Thank you, Mr. Chairman.




After sitting here for 2 hours in this hearing talking about


‘‘science-based rules,’’ I am reminded why a lot of people think that


Washington, D.C., is a 10-mile square surrounded by reality.


You know, I studied science and engineering at MIT for 6 years,


but you don’t have to be a scientist or an engineer to understand


you can’t do science without numbers and you can’t do science


without units.


I have heard terms like ‘‘flow,’’ ‘‘duration,’’ ‘‘wet,’’ ‘‘dry,’’ ‘‘intermittent,’’


but these things have not been defined today and are not defined


in your rule. I have read the rule. It uses terms of art, but


it doesn’t use terms of science.


And that is why we are going around the bush here chasing our


tails, is because we are not talking about numbers and units. The


units we should be using and the units that I see in State law are


acre-feet, gallons per minute, 100-year flood, 500-year flood. Let me


give you an example.


Here is a definition of ‘‘flood plain’’ from your rule. It means ‘‘an


area bordering inland or coastal waters that was formed by sedi-

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ment deposition from such water under present climatic conditions


and is inundated during periods of moderate to high water flows.’’


What the heck does ‘‘moderate to high’’ mean? Could you put


these rules—you say they are based on science. A science-based


rule would say 100-acre flood or a—I am sorry—a 100-year flood


or a 500-year flood. That is what I see missing from these rules,


and that is why we are concerned.


Why are there no numbers or units in the rule?

Ms. MCCARTHY. Actually, we put both definitions as well as we




teed up a number of potential ways to actually bring more bright


lines into the system. We actually took comment on whether or not


it should be 100-year flood plain. So we really were paying attention


to the science.

Mr. MASSIE. Well, I would recommend that you heed those comments




and use them. This is the fourth hearing we have had on


this. Mr. Perciasepe answered a few questions for me.


I believe he was your deputy administrator. Is that correct?

Ms. MCCARTHY. That is correct.


Mr. MASSIE. I asked him about the cost of implementing this




rule, and he once testified it was $100- to $200 million. And then


he later clarified it to say it was $160- to $280 million.


Do you agree with those numbers to implement it?

Ms. MCCARTHY. If you give me 1 second, I can tell you what the




numbers are. I see the costs identified in the proposal as $162 million


to $278 million.

Mr. MASSIE. OK. I am glad you agree with him.




Because on page 5 of your written testimony today, you say, ‘‘The


rule provides continuity with existing regulations where possible,


which will reduce confusion and’’—I am quoting you here—‘‘will reduce


transaction costs for the regulated community and the Agency.’’


So how can you say it is going to reduce transaction costs for the


community and the agencies and then testify that the cost is $160-


to $280 million?

Ms. MCCARTHY. Well, because we are looking at the overall cost




of implementation and then looking at how effective we are in


reaching those waters that are necessary to protect.


And I think I made it clear earlier that part of the implementation


challenge is that there are some waters which we are failing


to protect that need to be protected and there are others where we


are spending significant costs and money to go after waters that


are not essential for protection. And we are trying to clarify that.

Mr. MASSIE. Well, you know, outside of this 10-mile square, that




sounds like Washington, D.C., speak. You are saying it is going to


save money in your testimony, but you are testifying that it will


cost money.


I have one final question. This has to do with the farmers.


We have a lot of farming in Kentucky. I farm myself. And on


page 6 of your testimony, you say, ‘‘This rule maintains the longstanding


exclusions for prior converted cropland.’’ And I am glad


for that. That sounds generous.


But anybody who farms knows that you don’t always plow that


cropland every year. Some years you have good years. Some years

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you have bad years. Some years you use it for pasture. Some years


you merely let it go fallow.


And one concern that I have seen with the Army Corps and the


EPA is this term called ‘‘naturalization’’ or ‘‘renaturalization,’’


where, if something is untended for a period of time, they say it


is reverted back to its natural state, and now this exemption no


longer applies.


Will this exemption apply if somebody hasn’t farmed that cropland


or has used it for some other farming purpose or just let it


go fallow for some period of time?

Ms. MCCARTHY. You know, I would—I don’t think that I can specifically




answer your question other than to say this doesn’t change


the way in which the Agency has been working with the farming


community. And the definition—

Mr. MASSIE. Assistant Secretary Darcy, would you care to answer





Ms. DARCY. Well, I concur with the Administrator. The prior converted




cropland exemption remains. I think your question is how


far out does prior converted cropland extend.

Mr. MASSIE. Correct.


Ms. DARCY. And I think because what we have done historically




with prior converted cropland would still be the case under the proposed



Mr. MASSIE. What is that? What period of time?


Ms. DARCY. I would have to get back to you on that because I




don’t know if that—

Mr. GIBBS. [Presiding.] The gentleman’s time is expired.


Mr. MASSIE. Thank you. My time is expired.


Mr. GIBBS. Mrs. Napolitano.


Mrs. NAPOLITANO. Thank you, Mr. Chairman.




And I do ask unanimous consent to include in today’s hearing for


the record—

Mr. GIBBS. So ordered.


Mrs. NAPOLITANO. —comments from the California State and




Water Resources Control Board, which I quote, ‘‘Strongly supports


the Agency’s intent to, among other things, provide clarity to the


definition of ’waters of the United States’ in order to improve efficiency,


consistency, predictability, while protecting water quality,


public health, and the environment.’’

Mrs. NAPOLITANO. Mr. Chairman?


Mr. GIBBS. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Mrs. NAPOLITANO. Thank you.




And, also, Senator Boxer has already included in the record a letter


from California Association of Sanitization Agencies, which generally


is supportive of the administration’s efforts. Also, they are


requesting greater clarity on certain points.


And they state that the CWA is a ‘‘40-year-old statute that has


not been updated to address the needs and realities of today’s


water quality problems.’’ For the record.

Mr. GIBBS. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



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Mrs. NAPOLITANO. Thank you.




I applaud these and many other groups that recognize this proposed


rule in an attempt to undo confusion and uncertainty created


by the former administration so that we may protect both the Nation’s


economy as well as its water-related environment.


Bush guidance comments, which this rulemaking will replace,


are simply unsustainable. They fail to live up to the congressional


framework of the Clean Water Act as well as the framework outlined


by the courts.


Simply put, this guidance fails to protect our Nation’s water, especially


our drinking water. Rulemaking is necessary because nearly


125 million Americans, over one-third of the population, rely on


public drinking water systems that draw from surface waters.


Of that number, 117 million Americans obtain their drinking


water from intermittent ephemeral or headwater streams. In California


alone, my State, over 7 million rely on intermittent ephemeral


and headwater streams for their daily drinking water supply.


So we feel we must all do what we must to protect these water


resources because this is the only resources we all have. So when


this water dries up, our way of life and our local, regional and state


economies will dry up with it.


Opponents of the Clean Water rulemaking frame is an attack on


private interest, calling it a land grab fueled by Federal greed.


However, our Nation has never recognized a right to pollute, which


is what opponents of this rule are asking for.


Polluters would rather preserve the regulatory shadows created


by the former administration where they can fill wetlands or destroy


waters with little to no accountability, as was the case in San


Gabriel Valley, where we have a polluted area the size of a small


state that has taken over $95 million to start working to just get


it cleaned up. And we have got another $95- or more to go. This


is because of fertilizers, pesticides, et cetera, that have seeped into


the groundwater, into our drinking water.


If private interests are successful in blocking this rule, it is the


public who will suffer. In my State, it will mean less publicly available


drinking water, less protection over those drinking water


sources that remain, and an increased likelihood of flooding for our




So we need to let the administration finish what they started.


Protect the waters of the U.S. with this current rulemaking.


I do have a couple of things that I do have—in June of last year,


I did ask some questions in regard to stormwater drains and, also,


water recycling, which you have addressed, and I hope that you


will continue working with our agencies throughout the Western


States, which are heading into drought cycles again, to be able to


protect recycled water. As you say, stormwater cleanup is very important


to the whole Nation.


There are many other things that we have discussed ad nauseam,


I am sorry to say. We need to put it in language that people


will understand and publicly let the people know that EPA is there


to help clean the water, but do so in a way that is going to help


business, going to help farming.


And I applaud your effort to be able to clarify and reach out to


everybody. And I noticed in the reports there is not as much out-

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reach to California as I would have liked to see insofar as the


water agencies that I know are very critically involved in this.


So thank you very much for all the work you do. And let’s work


together, hopefully, to be able to ensure that the proposed rulemaking


comes before Congress and we can all agree to disagree,


but agree on the things we need to agree on.


Thank you very much.

Ms. MCCARTHY. Thank you.


Mr. GIBBS. Just real quick, I have two quick questions to the witnesses.




You keep saying that you will fix things in the final rule, that


the questions have been raised.


Will you do a supplemental proposal so the public will have a


chance to review that before you do the final rule, then, since there


has been so many questions raised about what sort of things are


going to get fixed in the final rule?

Ms. MCCARTHY. Well, we received a number of comments, as you




know, and we are working with the stakeholders on the issue. But


a supplemental would only be required if we certainly go outside


the boundaries of what we have already teed up in the proposal.


And at this point we intend to finalized the rule.

Mr. GIBBS. OK. Mr. Meadows, you are recognized for 5 minutes.


Mr. MEADOWS. Thank you, Mr. Chairman.




Thank each of you for being back with us.


Ms. McCarthy, I wanted to wear my Boston Red Sox hat today


just so you would know that—

Ms. MCCARTHY. We did, too.


Ms. DARCY. I am from Massachusetts, too.


Mr. MEADOWS. And I do want to say that there are elements




where some of the issues that we are talking about today that we


do hear a responsive ear. I am troubled, however, by some of the


testimony, as you would probably be well aware.


I have in the past received permits from the EPA from our State,


and, as I deal with that, the ambiguous nature of rules and guidelines


for those permits, I don’t see that being clarified in this rulemaking.


So can you tell me today, how much quicker are those permits


going to get issued?

Ms. DARCY. Congressman—


Mr. MEADOWS. Because I don’t see anything in the rule. I read




it and—

Ms. DARCY. Could I answer that one, Congressman?


Mr. MEADOWS. Sure.


Ms. DARCY. We think that by getting more clarity as to what is




in and what is out is going to be able to inform our regulators within


the Agency.

Mr. MEADOWS. But this doesn’t do that. I mean, going back to




what Mr. Massie just said, the definitions are still ambiguous.


How in the world can you say, well, medium flow, moderate flow?


Moderate flow, to me, is very different, maybe, than moderate flow


to you. The definitions even in the rules are not specific.


So how can the average person look at those and say that they


can implement it any faster?


Ms. McCarthy?

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Ms. MCCARTHY. Well, I think we have done a good job at teeing




up opportunities for narrowing where there is uncertainty and,


also, narrowing where you have to do case-by-case study based on


what the science tells us is in and what the science tells us isn’t.


And I would just ask you to take a look at that as well as alternatives


we have teed up, because it is clearly our intent to reduce


uncertainty here, which will, in essence, reduce costs associated


with it.

Mr. MEADOWS. All right. So you mentioned the cost.




Mr. MEADOWS. And my good friend from Kentucky mentioned the







Mr. MEADOWS. So if we are regulating and making rules on less




water, how could that be more costly? How could it cost $200 million?

Ms. MCCARTHY. Well, let me try to clarify it because I frankly




think I did not do a very good job at that. So let me take another


shot at it.


The cost increase that we see relates specifically to what we believe


to be mitigation impacts and what would need to be done to


reduce pollution and impact on sensitive waters that we believe


will identify—

Mr. MEADOWS. So you are going to increase the mitigation cost?




Mr. MEADOWS. Because I have gone through mitigation and we




already have a two-for-one, one-for-one, four-for-one kind of mitigation.


What mitigation are you talking about?

Ms. MCCARTHY. I explained before that I think there are areas—




they are small, but there are areas where we are not sufficiently


protecting water that should be. We are being very clear, I think,


about what is in and what is out.


But when you apply that to what is being implemented today,


there are some areas where they would actually require a permit


and require mitigation associated with that.


That is not to increase the per capita transaction—the transaction


cost, but it is just a reflection that it will be clearer about


some areas that should be protected because they are significant


and what areas are not.

Mr. MEADOWS. All right. So maybe dumb it down for me.




How do we make it clearer and easier and it becomes more costly?


I don’t—explain it to the American people.

Ms. MCCARTHY. Well, we have made, I think, an opportunity




available to take a look at how you define tributaries. Right now,


that is not well defined. We have defined that—

Mr. MEADOWS. Yeah. Because I live on the Continental Divide.




Everything is downhill for me.

Ms. MCCARTHY. We have increased exclusions and exemptions.




We have done at least a step forward on ditches, what is in and


what is out.


We have tried very hard to identify this adjacency question,


which the Supreme Court told us we had to define. We defined it


by proposing a variety of options to take care of that.

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We have actually identified opportunities to take these other


water sections and to try to find ways of doing more categorical exemptions


or inclusions—

Mr. MEADOWS. All right. So let me reclaim my time real quickly




because I have got one last question.



Mr. MEADOWS. Ms. Darcy and you and Mr. P, as I would call him




before he retired—

Ms. MCCARTHY. Bob Perciasepe.






—mentioned that this would not affect farmers, that, really, they


are kind of quasi-grandfathered in, and, yet, I assume that the


American Farm Bureau, the North Carolina Farm Bureau—none of


them have come out to endorse this.


So if stakeholders are not endorsing this rulemaking, what is the



Ms. MCCARTHY. Well, it is a complicated rulemaking, and some




areas are clearer than others. And we will be working with them


on it.


But the agriculture community deserves to have more certainty


than what is available to them today, and we are going to try to


do that in working with the agriculture community.


And we have not done anything to narrow exclusions or exemptions


in the Clean Water Act. In fact, we are expanding those exemptions


and exclusions in this rule.

Mr. MEADOWS. I appreciate the patience of the chair.


Mr. GIBBS. The gentleman’s time is expired.




Ms. Edwards, you have 5 minutes.

Ms. EDWARDS. Thank you, Mr. Chairman.




And I thank the witnesses as well for your patience.


I would ask unanimous consent to enter into the record letters


of support and resolutions from various of our small municipal jurisdictions


out in my congressional district in our State—well, one


of those is not small, the City of Baltimore—but cities like College


Park, Capitol Heights, Edmonston, Forest Heights, Mount Rainier,


New Carrollton, and the City of Rockville—letters of support from


them as well as from Clean Water Action supporting their efforts,


from more than 30 of our State senators and legislators who have


deep experience in working on these issues in the State of Maryland,


a letter from Union Craft Brewing Company, Heavy Seas


Brewing Company, and the small bed and biscuit—Hereford Bed &


Biscuit in Parkton, Maryland. And I would offer those for the



Mr. GIBBS. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Ms. EDWARDS. Thank you.




And, again, thanks to the witnesses.


Because I have heard from you numerous times. And, to me, it


seems fairly, you know, clear. And I am no expert. But I think, like


most Americans, I want to just get up, turn on the water, know


that I can drink it, wash with it, and that it is clean, my children


aren’t going to get sick, my immune system won’t be jeopardized.

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And we depend on the Government to do that. We depend on the


EPA and on the Army Corps.


And so, with the two Supreme Court decisions and the guidance


documents that were issued in 2003 and 2008, it is my understanding


that the regulated community, conservation, and environmental


organizations, several States, concede that the current process


that has been in place—and, really, you know, for the better


part of a decade, that kind of uncertainty that has been in place


is confusing, it is inconsistent, it is costly, and it has provided little


environmental benefit. And from what I have heard, entities really


just want certainty, and I think that is what I have heard from the


witnesses today.


The two agencies released in March 2014 a proposed rule that


would clarify the jurisdiction of the Clean Water Act and requested


certainty. And so, to me, quite simply, it is a proposed rule. It is


not a final rule. There is a lot that has gone into the process. You


have already explained that there have been a couple of extensions


to allow for additional comments and consideration. I can’t actually


think of a more public process than has been engaged in this rulemaking.


And from what I further understand about the rulemaking process,


agencies take the comments that are received like you are


doing. You have hearings and consultations with a broad swath of


interested parties and then you make modifications to the proposed


rule before you issue the final rule.


That is where we are right now. And I think we have heard from


some of my colleagues that the gross exaggerations that have been


made about the scope of the rule are, in fact, that. They are exaggerations.


And so I am glad that you are here again today to clarify


for us what is in consideration and what is not.


I just want to point out that, in Maryland, 59 percent of our


streams have no other streams flowing into them, 19 percent don’t


flow year-round. And under the varying interpretations of the recent


Supreme Court decisions, these smaller bodies are among


those for which the extent of Clean Water Act protections has been


questioned. And so the EPA says that, basically, nearly 4 million


Marylanders—and that is about 70 percent of our population—receive


some of our drinking water from areas that contain these


smaller streams.


And, as I said, 70 percent of Marylanders get our drinking water


from sources that rely on headwater or seasonal streams. We, in


fact, in our State are welcoming this clarity.


And so, in view of that fact, I am proud that Maryland joined


over 30 States—I am a little confused. 30, 34. Like we have 64


states. But 30 states have joined in asking the Supreme Court to


uphold broad legal protection through small tributaries and their


adjacent wetlands.


And so I share with Senator Whitehouse that this is not a perfect


scenario, but we shouldn’t let the perfect be the enemy of the good.


And I wonder if you could just comment for me in the brief time


that I have left the agricultural exemptions that you have told this


committee about before and the fast-tracking process that the


Army Corps will put into place to make sure that discharges associ-

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ated with agricultural activities will not have the kind of impact


that some of our farmers perceive.

Ms. DARCY. I will take that one, Congresswoman.




The agricultural exemptions that currently exist in the Clean


Water Act are still there. That is unchanged by this rule. And they


include agriculture stormwater discharges, the return flows that


the Administrator talked about earlier, construction and maintenance


of farm and stock ponds, maintenance of drainage ditches,


upland soil and water conservation policies. These are all in place,


and they continue to be in place as a result of this rule.

Mr. GIBBS. Your time is expired.




Senator Fischer, you have 5 minutes.

Senator FISCHER. Thank you very much.




Nice to see you again, Administrator.

Ms. MCCARTHY. You, too, Senator.


Senator FISCHER. I have here many, many comments that were




filed by the League of Nebraska Municipalities, and I want to make


sure that their concerns are heard and not ignored, as I believe you


rushed to issue a final rule by April, assuming a 60-day OMB review


period instead of the usually 90 days. And it would give you


then only 3 months to review and address over the 1 million comments


you have received.


These comments provide a good overview of concerns about your


proposal because Nebraska municipalities not only run wastewater,


stormwater, and flood control systems, they also provide drinking


water, electricity, and natural gas to their citizens.


So I ask unanimous consent that these comments be placed in


the record.

Mr. GIBBS. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Senator FISCHER. Thank you.




Administrator, I also have a copy for you here, if you would take


that, and I hope that you will take the time to read through it.


My communities are deeply concerned about the proposal. You


know that. The reason they are so concerned is that your proposed


rule could regulate all waters in the State of Nebraska.


First of all, you are proposing to regulate all water that has a


shallow subsurface hydrologic connection or subsurface hydrology.


As you can see from a chart that I have, in large areas of Nebraska,


the groundwater table is only 50 feet below the surface. All


water located in these areas could be automatically regulated


under this proposal.


Second, you are proposing to regulate other water on a case-bycase


basis that includes consideration of connections through deeper


groundwater systems, and you are proposing to look at all waters


in the aggregate in a watershed or in an ecoregion. Most of


Nebraska falls in one of the ecoregions that you have identified.


Therefore, all water in these ecoregions would be reviewed collectively


to determine that they have connections through groundwater.


That makes them all waters of the United States.


I want you to understand that municipalities and landowners in


Nebraska cannot engage in development activities or construct and


maintain wastewater, stormwater, and flood control systems with-

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out creating some form of open water that would be regulated


under this proposal. I don’t believe that is a myth. These are real


impacts of the proposal that you are putting forward.


So I would ask: Will you commit that your final rule will not assert


Federal control over water based on groundwater connections?

Ms. MCCARTHY. Well, first of all, Senator, thank you.




We actually are working very hard to identify and resolve the


issues that you have raised. I would agree with you that there are


many legitimate issues that have been raised, and I will also agree


that we are not rushing to finalize the rule until we resolve these


issues to our satisfaction and so that we can explain to the stakeholders


how we listened to them. So I would appreciate walking


home with the comments that you have provided.


I am going to fall short of answering your specific question until


the dialogue with the stakeholders is concluded and we see how


we—we understand that groundwater, while it is not regulated


under the Clean Water Act, there are connections that may be important


for the quality of downstream waters. But, clearly, folks


are asking for a lot more clarity on this and this is one area where


we need to work hard together.

Senator FISCHER. Also, I would say to you that many of my




stakeholders feel that your staff has refused to provide them with


some clear answers during outreach sessions and they are concerned


about the intended scope of the proposed rule.


Cities and counties have repeatedly asked your staff if they intend


to include the municipal storm sewer systems in the definition


of ‘‘waters of the United States,’’ and, instead of clearly disavowing


any such intent, your staff seems to be very evasive and will only


say, ‘‘If you don’t need a permit today, you don’t need one under


the proposed rule.’’ I would hope that is correct, but we need clarification


on that.


I think that answer is unacceptable. It suggests to me that some


storm sewers are going to be considered ‘‘waters of the United


States.’’ The storm sewers and other water management ditches


and canals are not waters of the U.S., but I think your proposal


is broad enough that it would bring them under Federal control.


And we definitely would have issues with that. We have many


issues that come up with industrial facilities, with farmers, wastewater


treatment facilities, drinking water utilities, because they all


manage water in manmade conveyances.

Mr. GIBBS. The gentlelady’s time is expired.


Senator FISCHER. I see my time is up. Thank you.


Mr. GIBBS. Do you want to respond quickly?


Ms. MCCARTHY. Only that, Senator, I would really appreciate it




if our staffs could work together. And if there is clarity that we can


provide and additional outreach, I would be more than happy to do



Senator FISCHER. I appreciate your openness on that, Administrator,




and, hopefully, we can get answers to my stakeholders.

Ms. MCCARTHY. Thank you.


Senator FISCHER. Thank you.


Mr. GIBBS. Mr. Woodall, you are recognized for 5 minutes.


Mr. WOODALL. Thank you, Mr. Chairman.





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I appreciate you all being here, particularly for those of us at the


bottom end of the dais.


I wanted to follow up on Senator Fischer’s question, though. I


have been a staffer for a decade or so, and I appreciate that you


don’t always—if your name is on the door, you don’t always want


the staff disavowing things, because that is the job for the men and


women whose names are on the door.


But if it is clear that stormwater clearly is not within Federal


jurisdiction, why can’t those with their names on the door go ahead


and disavow that today and let us take that off the worry list for


folks back home?

Ms. MCCARTHY. Well, I would like to take anything off the worry




list that I can. So we will do whatever outreach we need to do to


be as clear as we possibly can. Staff are obviously conservative in


giving opinions during the middle of a rulemaking process, but we


need to be a little less so so that we can be frank and build confidence


in one another.

Mr. WOODALL. But it would be easy to—I think about the Assistant




Secretary. We have had conversations about water treatment


facilities in our district. They are built above and beyond. They are


just spectacular, a great expense to my constituents, because we


are invested in the environment. In fact, I would take issue with


anyone who says we are not doing more than our fair share.


And it would be easy to go ahead and disavow a whole string of


things that you have no intention of creating, but folks are talking


about exaggerations and people being worried for nothing.


I would tell you this. Waters of the U.S. is issue number one for


folks into my district. Water, in general, is issue number one. And


it seems that we do a disservice, as legislators and regulators, if


we have an opportunity to say, ‘‘Let’s focus on what really is important,


what really is a stakeholder contention, and let’s move these


red herrings off the table.’’


Why should we be concerned with that?

Ms. MCCARTHY. We had an earlier question about these facilities,




these MS4s and others, and I was, I think, very clear that there


will be exclusions articulated for those in the final rule.


I think what we see has happened here is our interest in expanding


exclusions wasn’t our intent to cover everything. And if we


didn’t articulate everything, people felt that we were specifically


narrowing those exclusions. We will do a job at articulating what


is in and what is out better than we certainly did it before.


And you will have my assurance that these things that have


never been in before, that we have never talked about, will not be


in the final rule. We will clarify these so that people will see in


writing what they have been asking us about.

Mr. WOODALL. I think about your goals of clarity, cost reduction.




These are all goals that every stakeholder in my district shares


and, I would argue, stakeholders across the Nation share.


And, yet, amongst your million comments will be letters from our


Attorney General taking issue with the proposal, citing the very


same case law that you cite to promulgate the proposal. Our Attorney


General would cite to negate it, our Chamber of Commerce, our


Council for Quality Growth, our Ag Commissioner, on and on and



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I am very proud of Georgia’s record of environmental stewardship,


particularly water stewardship. I am one of those anglers who


spends $50 billion a year in U.S. waters.


Can you tell me something that, in your collective experience,


that we have failed on in Georgia that—again, sharing the desire


that everyone has for clean water, I feel like we are meeting that


standard locally today. No one is asking for Federal help today.


Can you talk to me about some failures that we have had in my


State that this rulemaking would seek to train us up.

Ms. MCCARTHY. I don’t think—and, Jo-Ellen, I am sorry. I am




going to be very quick.


I don’t think that this should be looked at as an indication of failure


on the part of any State. This is trying to respond to States


telling the Federal Government that, ‘‘It is time that you were


clearer so that we can do our business, which is to co-regulate with


you in a way that is effective and efficient.’’


They are asking us to be clearer. So I would not want folks to


go thinking that this is a reflection of any failure on the part of


any State.

Mr. WOODALL. And so I am looking at a handout from the Water




Advocacy Coalition that lists 11 States submitting comments to


say, ‘‘We oppose the rules that are promulgated. We need lots of


revisions,’’ another 22 States that say, ‘‘We oppose it. We want it


withdrawn altogether.’’


You are saying that this process began as a response to these


State stakeholders. But given that the majority of those folks have


some degree of—or a substantial degree of concern today, would we


still say that the rulemaking has addressed those concerns that it


set out to address or have we gone far afield?

Ms. MCCARTHY. I think we still have work to do before the final




rule, and the final rule will respect that work getting done. I think


that it is incredibly important that we retain the partnership we


have with States working collaboratively together.


We went through this process specifically to tee up a range of


ideas that the States and stakeholders could respond to in the rulemaking.


That is what you see has happened.


This is not an easy rule, and I won’t suggest it is. But we will


get this done in a way that we are supposed to, and we will listen


and respond to the comments effectively.

Mr. WOODALL. I appreciate that recognition of Georgia’s success.




And, Mr. Chairman, I yield back.

Mr. GIBBS. Administrator McCarthy, I have just got a quick clarification.




You told Senator Fischer you will not rush to finalize the rule,


but your Web site, EPA’s Web site, says you plan to issue a final


rule in April.


Is that still the plan?

Ms. MCCARTHY. Well, certainly our goal is to issue it this spring.




I am not going to give you a specific timeline more than that because


I want to make sure that we are respectful of the full range


of comments that came in and we have—

Mr. GIBBS. I just wanted a clarification for what your Web site




says. OK. Thank you.


Ms. Titus, you are recognized for 5 minutes.

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Ms. TITUS. Thank you.




And thank you, Administrator, for being here.


I represent the First Congressional District of Nevada. That is


basically Las Vegas. We live in the desert. If you have ever been


there, you know our biggest body of water is the fountains in front


of the Bellagio. So we are kind of in a unique situation.

Ms. MCCARTHY. And they are beautiful.


Ms. TITUS. We get about 4 inches of water a year, but we also




depend on one source primarily. 90 percent of our water comes


from the Colorado River. It serves 2 million people who live there


in the valley and 42 million people who come as tourists.


So protecting that river is very important to us. And so I am very


supportive of your efforts and generally think what you are doing


is right on track.


I have talked to some of the local government agencies, however,


and they have a bit of a concern about the definition of ‘‘ephemeral




And I would like to enter their letters in the record, if I may.


One is from the Regional Flood Control District of Clark County,


and one is from the Las Vegas Valley Watershed Advisory Committee,


if that is all right.

Mr. GIBBS. Yes. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Ms. TITUS. Thank you.




The Flood Control District is concerned about the definition of


‘‘ephemeral washes’’ in the desert throughout the Southwest because


oftentimes they won’t carry water for years, but, when they


do, it may be a flash flood. So the water level is very high. We


would like to figure out how they will fit into the scheme of things.


And the second concern from the Las Vegas Watershed Advisory


also is about that same definition, and they would like to know if


some facilities that they construct for water projects will actually


be included, things like ditches, canals, ponds, manmade features


used in the operation of wastewater treatment and supply systems.


So could you address those two things or give me something that


I can take back to them—



Ms. TITUS. —to assure them that these things are being considered




in this process.

Ms. MCCARTHY. Yes. Let me answer two.




One is let us know who you would like us to talk to, because we


will be very clear, as we answered before, about the MS4 issues,


which is one of your issues. All of the construction that is done to


protect stormwater from urban areas and others is extremely important


for us to recognize and continue to incent that and not to


confuse that issue.


Let me mention the ephemeral washes, because the significant


issue for us is: When does an ephemeral flow? When is it sufficient


duration and intensity and frequency that it has an opportunity to


impact the quality of the water that is downstream? That is the




So what we are doing in this rule is trying to define the very


water features that you can articulate in the field that reflect a

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water flow in those washes that indicate that it is of sufficient flow,


duration, and frequency that it would have created a bed, a bank,


and a high water—well, I am sorry—ordinary high-water mark—


thank you very much—the ‘‘O’’ always eludes me—which are actually


features that reflect that it flows sufficiently and frequently


enough that it could significantly impact the biological and chemical


and physical integrity of the waters that it flows into.


So we are doing our best to define that in a way that you can


see it and you can know what is in and what is out and would certainly


find it an opportunity to talk to anybody about why we are


making those connections and why we think it is respectful of the


science and why it will also minimize confusion in a way that will


be helpful to everybody.

Ms. TITUS. I appreciate that.




If I can get them in touch with your office, then, to kind of reassure


them along—

Ms. MCCARTHY. We are happy to reach out to your office as well.


Ms. TITUS. Thank you so much.




I yield back.

Mr. GIBBS. Mr. Hardy, you are recognized for 5 minutes.


Mr. HARDY. Thank you, Mr. Chairman.




I, too, am from Nevada. I have the north portion of the Las


Vegas area and, also, further north to the rural counties. We come


from an area, like the Congresswoman said, where I have 7-yearold


frogs that don’t know how to swim. So it is a dry area.


So, with that, I want to go back to a comment that was made


earlier about the $162 million to $280 million number. Can you


elaborate on this analysis. And did you take into account the sheer


mitigating factors? Were there second- or third-layer effects of the


supply chain included in this analysis?


Let me go ahead and put it into perspective. As a former


businessperson, owner, trying to expand my company, I was not


only concerned with the immediate internal facts, like my products,


my employees, but I also had to look at the long-term external environment


and the legal and socioeconomic and political factors.


Have you looked into those to see what the costs of those would


be with this mitigation? You say it significantly outweighs the benefit.

Ms. MCCARTHY. To the extent that we—we followed the Office of




Management and Budget guidelines and EPA’s guidelines, and we


have done an economic analysis for this rule that is consistent with


what we believe our obligation is and to the extent that science allows


us to do this effectively.


There are benefits that we cannot capture in this cost that we


have estimated to the best of our ability. So we think we have done


a very thorough economic analysis. But times change.


We are going to relook at that economic analysis and, when we


issue the final rule, we will do the best we can to talk about all


of those, the benefits and costs associated with this rule not just


short term, but long term as well.

Mr. HARDY. OK. I would also like to read a comment from Nevada’s




Department of Conservation and Natural Resources and the


Nevada—Colorado Commission of Water. I would like to hear your


reaction to it.

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‘‘Nevada has very strong laws and regulations to preserve and


protect the waters of the State, which are defined as waters situated


wholly, partly, or within the bordering upon the State. The


State has the authority to protect all waters, whether or not they


are subject to the CWA jurisdiction, and has carried out authority


effectively and efficiently for decades.’’


I would like to hear your thoughts on this statement and why we


continue to need your authority within our State when we are


doing a great job.

Ms. MCCARTHY. Well, the States and EPA work with one another




in partnership to protect waters. Again, I do not want this rule to


look like it is an indication of a lack of diligence on the part of Nevada


or any State. Frankly, it is just making sure that the Federal


Government does its job to be as clear as we can.


The States have asked for this because they want to eliminate


challenges to some of their decisions and they want clarity on what


they should be paying attention to. We are just trying to be the


best partners we can with the States.

Mr. HARDY. And I think that is where this comes into effect. You




know, the Federal Government has a tendency to one-size-fits-all.


I don’t think one size for Nevada fits anybody else. It doesn’t fit


the West, nor does it fit any State in the United States.


We have 50 significant different States and different environments.


So this one-size-fits-all—we have to be very open on how we


are going to deal with this.


Another of the comments that was made here, if you wouldn’t


mind reading it: ‘‘The EPA has attempted to collaborate with the


States and other affected parties after the fact and address issues


of concern that have already been proposed.’’


That is a concern to me when you say you—you have specifically


said yourself that you have worked with the States, but they are


telling us it is after the fact you come to them with this—with your



Ms. MCCARTHY. These are issues that EPA and the States have




been working on, literally, for decades. But no matter how you perceive


the pre-proposal work that we did, there is no question, I


don’t think, that the docket will reflect that we have done significant


outreach with the States on this. We have reached out to them


through our regions and through headquarters. We are going to


continue that discussion.

Mr. HARDY. One final question before my time runs out.




‘‘The CWA has not intended to apply the management of groundwater.


While we applaud the proposed rule exclusion of groundwater,


the issue becomes blurred when the shallow subsurface hydraulic


connections are used to establish jurisdiction between surface


waters. This opens the door to interpretation and the argument


of extension of the CWA jurisdiction to groundwater resources.’’


Any comment on that?

Ms. MCCARTHY. That was the exact same issue that Senator




Fischer raised, and we are happy to continue that discussion.

Mr. HARDY. Thank you.




I yield back.

Mr. GIBBS. Mr. Huffman, you are recognized for 5 minutes.





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Mr. HUFFMAN. Thank you, Mr. Chairman.




And I want to thank Administrator McCarthy and Assistant Secretary


Darcy for your patience and testimony here today and, really,


for your good work over the course of several years.


It is remarkable how much public process you have brought to


this issue, how much science, and how many iterations of peer review


and analysis have gone into this, the fact that we have had


drafts and revisions and a listening tour that really is more extensive


than anything I have seen in my short time here in Congress.


And I think the real story of what you have done here is a story


of the way a serious rulemaking ought to work. You have, frankly,


just done good work, and I want to commend you for that. And you


have maintained your patience in the face of, I think, some pretty


outlandish accusations about this proposed rulemaking.


In fact, I think there is—if there is any story from today’s hearing,


I think it has to be how weak and unfounded and just plain


wrong some of the claims about this rulemaking are.


We have seen a map that was never intended to depict Clean


Water Act jurisdiction or even jurisdictional expansion, but it was


represented that way. And then, when you clarified that the map


appeared to be prepared for fisheries purposes or for completely unrelated


purposes, some of my colleagues across the aisle said they


were very troubled by your answer. It is really rather remarkable


what passes for congressional oversight sometimes.


We saw a photo of something that seemed to be represented as


a bit of a smoking gun, an erosion feature in a farm field. And, yet,


when we had a chance to listen to you, we found that that is actually


something that was found to be jurisdictional under the current


rules, not under your proposed rulemaking, sort of illustrating


the problem, the problem we have with the status quo that comes


to us not through the exhaustive science and public process that


you have brought to this issue, but it comes to us from policy guidance


that was handed down without any process, without any


science, without any advanced notice or comment from the Bush


administration in response to some Supreme Court decisions.


And the guidance that we are left with draws from two different


Supreme Court Justices’ opinions who had two different ideas


about how one ought to find jurisdiction under this matter and


leaves with us a case-by-case analysis that is cumbersome, that has


been litigation prone, that frankly leaves us with a status quo that


nobody should be very satisfied about.


So I am glad you have taken on this tough issue at the request,


we need to always remember, of stakeholders, of the Supreme


Court, of so many folks that have asked you to do this. And, again,


I think you have done very good work.


I represent a lot of farmers and ranchers, a lot of forestry in the


north coast of California, and I do continue to hear some of these


concerns that you have very clearly, I think, spoken to on many,


many occasions.


But I just want to ask you one more time: Are there any farming,


ranching, or forestry discharge activities that are exempt from permitting


today that would lose that exempt status because of anything


you are doing in this rulemaking?

Ms. DARCY. No, Congressman.





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Mr. HUFFMAN. All right. And I know we continue to hear concerns




about dry washes and even truck tire ruts and things that


you have clarified many, many times. But I want to ask you where


you are going with that process of clarification.


Because, clearly, no matter how many times you say it, it doesn’t


appear to satisfy the folks who keep trotting out these examples.


And I think I understand that you are going to try to address this


through defining the term ‘‘bed and bank.’’


We saw a picture, I think, from Senator Capito that was represented


as a dry wash. But, to me, it looked like it might have


had a bed and bank. I don’t know. But I think we have heard that


you may be in the process of providing some real definition of this


‘‘bed and bank’’ standard, science-based definition.


Can you just tell us what we might expect in the final rule on


that point.

Ms. DARCY. Because of the public comment on that issue in particular—




because that is part of the definition of ‘‘tributary,’’ which


is being defined for the first time ever in the Clean Water Act and


in regulation.


And I think, because it was the first time the definition was out


there and the definition is it has to have a bed and bank and ordinary


high-water mark, that is getting a lot of comment.


And I think part of the comment is, ‘‘So further define that.’’ And


I think, in response to public comments, that is probably a challenge


for us to address in the final rule.

Mr. HUFFMAN. So you think we can expect some specific definition




of this ‘‘bed and bank’’ standard?

Ms. DARCY. I think we need to consider it, especially because it




has raised concerns. And, again, we are trying to get certainty and,


if we can better get some certainty here, that is the way to do it.

Mr. HUFFMAN. All right. Thank you.


Mr. GIBBS. Senator Carper, you are recognized for 5 minutes.


Senator CARPER. Thanks, Mr. Chairman.




It is great to be here with all of you at FedEx stadium. This is


a big room. And it is nice to be with my—some of my former House


colleagues with whom I served a number of years ago.


It is nice to see you from afar, from all the way up here to down


there. To our Administrator and to our Assistant Secretary, thank


you for coming today and for hanging in here for all of this time.


I think you are just the first panel, which has been a pretty long


morning, I am sure, for you.


I have just come from a hearing on Homeland Security and Government


Affairs Committee and we focused on the President’s action


with respect to immigration and providing some protections, if


you will, for those that are here in certain status as opposed to others


that are not allowed to stay any longer.


And one of the messages that came out of that hearing was the


reason why we are having that hearing in the Homeland Security


and Government Affairs Committee is because the Congress hadn’t


done its job, that we didn’t pass comprehensive immigration reform,


and if we had, the issues that we were discussing would have


been moot.


And I think there is a parallel here. And I think the parallel is,


if we had done our job, if we had actually passed legislation to pro-

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vide for the clarification that was needed following some Supreme


Court intervention, we wouldn’t be holding this hearing. Is that



Ms. MCCARTHY. It could have reduced some of the existing confusion,




that we can and will reduce the regulatory action as well.

Senator CARPER. All right. I am really tempted to ask what is a




question that you wish had been asked you. Let me ask that. What


is a question you wish had been asked? Out of all of the questions


fielded today, what do you wish you had been asked that never was


asked? Anything at all? Did we exhaust everything?

Ms. MCCARTHY. I actually was going to say: Would you like a




bathroom break? But I thought that would be too rude at this point


in time.

Senator CARPER. Well, in that case, I will hurry this up.




All right. Can both of you name for us two concerns that you


have heard from stakeholders that you intend on addressing in the


final rule. Each of you, two. A double shot, if you will. Two concerns


that you heard from stakeholders that you intend on addressing


in the final rule.

Ms. DARCY. The continued lack of clarity, which is what we are




attempting to do in the rule, was to be more clear and definitive


about, as Gina has continued to say, what is in and what is out.


And I think that is what we have to continue to look to improve


upon in the proposed rule.


That, as well as how we can better cut down the time that permits


take. And I think, by providing some more clarity and definition,


we might be able to get after that as well.

Senator CARPER. All right. Thank you.


Ms. MCCARTHY. Let me just add, the definition of ‘‘tributary’’ and




how it relates to ephemeral streams is extremely important, how


that all relates to erosional features that are exempt, are excluded,


from the Clean Water Act jurisdiction. I think people have asked


for more clarity on significant nexus. I think we need to provide it.


And the ditch issue, it drives me crazy, as it does everybody else.


So there is a lot of issues that have been raised around ditches,


and we need to be very clear about the fact that we are not just


respecting the current exemptions, but we are expanding on those.


But we are also defining those unique ditches that actually deserve


to be protected from pollution and destruction through a normal


permit process.

Senator CARPER. All right. Good. Thank you for that.




It is my understanding that attorney generals from, I think, a


half dozen or more States, including my own State, former Delaware


Attorney General Beau Biden who just stepped down a month


or so ago. But I understand that they sent a letter to the EPA and


the Army Corps—I want to say last September—and in their letter


they were in support of the waters of the U.S. proposal.


In that letter, the AGs pointed out the need for predictability.


They spoke to the need to address discharges that can happen in


one State, but impact States downstream.


And I just want to say: Is that correct? Just yes or no. Is that


a fair statement?

Ms. MCCARTHY. I believe so.





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Senator CARPER. However, I understand the EPA has also heard




from other States with extreme concerns over the rule. I am sure


you have heard that today.


Why do you believe there is such a diversity of views from State


to State on this issue? Do you believe this rule does provide needed


predictability? And do you believe that there are some changes that


you can make in the final rule to address some of the concerns we


are hearing from these other States?


You already answered the second question, in part, because you


told me you actually think some followup needs to happen. So why


such a disparity? I mean, you have got some States that say, ‘‘This


is good. Let’s do this’’ and other States who raise all kind of heck


about it.

Ms. MCCARTHY. I think it points out that there is a tremendous




amount of lack of clarity and uncertainty today. And so part of it


is, I think, when we explained what is actually jurisdictional today,


some people were surprised by that.


And when we tried to explain exclusions, they didn’t understand


that that list was not exhaustive. So if they didn’t see themselves


in the exclusions, even though it was much larger than current exclusions,


they thought we were sending a signal that they weren’t




So there was a lot of misinformation and legitimate misunderstandings


and legitimate need for continued clarity on these issues.

Senator CARPER. OK.


Ms. MCCARTHY. And we just need to face that and deal with it




in the final rule effectively.

Senator CARPER. Thank you both so much.




Thank you, Mr. Chairman.

Mr. GIBBS. Ms. McCarthy, I have got just a quick question here




to follow up.



Mr. GIBBS. You told us about you are resolving all these issues




before the final rule and you are working with the States and




But what specifically is the process for resolving these outstanding



Ms. MCCARTHY. To continue to look at the comments received, to




continue to have discussions as appropriate and docketed with the



Mr. GIBBS. So you are having interaction with the States?


Ms. MCCARTHY. Absolutely. Yes, we are.


Mr. GIBBS. OK. Mr. Mica, you are recognized for 5 minutes.


Mr. MICA. Well, thank you.




And let me follow up a little bit with the EPA administrator. It


is my understanding that 34 States expressed concern and asked


for withdrawal or significant revision.


Is that a correct number?

Ms. MCCARTHY. It is a—I don’t have any number—


Mr. MICA. Well, that is what I am told, 34. It is not—


Ms. MCCARTHY. It may be, but—


Mr. MICA. It is not just a few States. It is 34.


Ms. MCCARTHY. The only thing I would indicate is that the same





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Mr. MICA. And 34 is about two-thirds of the States. I think we




still have 50 States. Seems like it is a significant number.


How long have you been working on this proposed rule?

Ms. MCCARTHY. When did we first propose it? Last April in 2014.




But certainly well beyond that.

Mr. MICA. And you came out with your proposed language and




consulted different folks, States, which aren’t happy.


When was the exact date you came out with your proposed rule?

Ms. MCCARTHY. April 21st of 2014.


Mr. MICA. 2014.


Ms. MCCARTHY. But that reflected the guidance document that—


Mr. MICA. And how much longer would you take before you finalize




the decision on the rule?

Ms. MCCARTHY. We have not finalized the decision.


Mr. MICA. No. I want to know how much longer it would take




to come out with a final rule. What is your prediction?

Ms. MCCARTHY. Well, we are hoping to propose it—we are hoping




to finalize it this spring. I do not have an exact date.

Mr. MICA. This spring. OK. But I am trying to get some time.




Mr. MICA. I did everything I could to block changing the law




after the Supreme Court decision because there were other definitions.


I found in that discussion that one of the things that happens—


and I heard earlier testimony from the Corps of Engineers


that there is some significant impacts.


In fact, you testified earlier, didn’t you, Corps representative,


that there will be additional costs, additional services required of


the Corps, to take on this new responsibility?

Ms. DARCY. There will be some additional implementation costs




if the rule is finalized. Yes.

Mr. MICA. OK. So there is additional cost.




One of the things that concerns me—maybe the big corporations


can comply with this. First of all, having been in business, when


you change this rule, you are going to create legal havoc because


you are changing years and years of law and definitions.


And there is—you talk about clarity. Well, when you adopt a new


rule with new language, it creates uncertainty. It creates lawsuits.


It will create havoc for many businesspeople. And maybe the big


guys can handle this. The small guys can’t handle it.


What concerns me, too, the information we have is the Small


Business Administration’s Office of Advocacy recently concluded


that EPA and the Corps have improperly certified the proposed


rule under the Regulatory Flexibility Act because it would have direct


and significant effects on small business. This isn’t something


I am saying. This is what they are saying.


So, again, the small guy is going to get screwed—pardon—that


is a highly technical term, but—with whatever you do because it


will be new. It will be subject to suit. It will be subject to interpretation.


It will be subject to new regulation which you are imposing


that has a cost.


So the ones that were—you know, what is the biggest job creator


in the United States? Do you two know? Where do we get the most


jobs from? Do you know?



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Ms. MCCARTHY. Small businesses is what I understand.


Mr. MICA. Small business.




And according to, again, their advocacy group, they don’t feel


consulted. They don’t even feel that you complied with the requirements


to consult them.


So any change, I think, is going to raise havoc and some costs


documented here, uncertainty. Possibly there are things that we


need to do for improvement. And I think you can do many of those


things for water quality in this country without changing this definition.


Again, if you implement the rule—if you adopt the rule this


spring, when would it be implemented?

Ms. MCCARTHY. It would be effective on publication in the Federal





Mr. MICA. So everyone would have to comply with that. That is




kind of handy-dandy because that is the rule. You create the chaos,


the uncertainty, the havoc.


We could pass a bill, and I think there is enough support to pass


a bill in the House and Senate to undo your rule. More than likely,


that will take time. We have seen the slow roll on Keystone.


Did you want to comment or—

Ms. MCCARTHY. I just wanted to—I neglected to indicate that it




is actually 60 days beyond that date, which does allow Congress to


take a look at it.

Mr. MICA. OK. That is probably even worse.




But, in any event, what that does is give the President a bill that


will rescind what you are doing. I predict that will happen. And


then the President would veto it, and it will be much more difficult


for us to override that veto.


That is the scenario I see, Mr. Chairman, and it is not a pretty


one for small business or anyone who is concerned with government


regulations or its impact.RPTR HUMISTONEDTR


HOFSTAD[1:04 p.m.]

Mr. GIBBS. The gentleman’s time has expired.




Just for a point of information, they will be calling votes here in


the next 15, 20 minutes, and we are monitoring that. So we will


break for a recess when it is the appropriate time so nobody misses




Mr. Garrett Graves, you are recognized for 5 minutes.

Mr. GRAVES OF LOUISIANA. Thank you, Mr. Chairman.




Thank you very much for being here today. Good to see you. And


I also appreciate your perseverance through this hearing. I know


you have been sitting there a long time, so thank you.


I am from south Louisiana and have very strong concerns about


the approach that you are taking in the rule and the regulation.


I think we all know, if you look back at the statute, the Clean


Water Act, you have the reference to ‘‘navigable waters.’’ And you


have seen the Supreme Court come in and repeatedly narrow or reject


the rules that have been promulgated in an effort to regulate


wetlands in particular.


I am concerned that we are actually headed down the same


course right now with this proposed regulation, that we are going


to see a perhaps third rejection and narrowing of the regulations


as it pertains to the Clean Water Act. And I think that probably

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what is happening is that the agencies are writing a rule in an effort


to try to recapture a similar scope and just taking a different


direction, as happened after SWANCC, as I recall.


In particular, you know, I want to focus on the word ‘‘navigable.’’


That word, you know, it seems that we may have a disconnect in


the statute versus what you often referred to was the science. And


if that disconnect is there, it seems like it is Congress’ job to actually


modify the statute if that is something that Congress and the


agencies believe need to be done. But I am concerned that we are


stretching these regulations in order to create the same footprint—


in fact, perhaps a growing footprint.


An example of that is your own cost analysis that you have done


that has been, I guess, rejected or some concerns have been expressed


by small business, among others, showing that you actually


have a higher regulatory cost. I don’t understand how you have a


higher regulatory cost if you have more certainty, greater certainty,


and if you do not have an expanded footprint of jurisdiction here.


That seems to be inconsistent, and I am very concerned about that.


Secondly, when you actually go through and read the regulation,


you have terms like ‘‘case-specific basis,’’ ‘‘significant nexus’’ that I


note was part of the Kennedy statement, not part of the plurality


opinion. You have comments like ‘‘waters with a shallow subsurface


hydrologic connection or confined surface hydrologic connection


to such a jurisdictional water.’’


This is Louisiana. The whole thing is water. You could take some


of these terms that you have in here, ‘‘tributary,’’ ‘‘ephemerals,’’ you


could apply—I am going to guess that, if you look at this, you could


probably give me 90 percent of the undeveloped property in south


Louisiana and I could figure out a way to apply your proposed rule


to south Louisiana. Nationwide permits don’t apply down there. We


have much greater compliance challenges.


This is your own—Secretary Darcy, I am sure you recognize this


one. This is your picture of the watershed.


And, Mr. Chairman, I want to ask for—hang on, I am getting


ready to ask unanimous consent to get double pay for holding my


own placard. But—thank you. I am sorry.


No, but this is your own picture of the watershed. We have everywhere


from Montana to New York coming down and draining


through south Louisiana. That gives you an idea of why this first


map looked like it did.


If you look at the definitions that you have here and you say


things like—you talk about tributaries ‘‘even if they lack a bed and


banks or ordinary high-water mark,’’ and it says, ‘‘if they contribute


flow.’’ Well, again, I think that if you wanted to—and, Administrator


McCarthy, I am not saying that you are going to be


egregious or do bad things, but if you wanted to, I think that you


could absolutely take some of these terms and stretch them to


apply to virtually anything here, which doesn’t provide certainty or


clarity, especially when you combine it with some of the other


terms that are used.


You also have a term in there that was interesting that pertained


to—it said something about areas that were established


through sediment deposition. Well, over on the left, that is Louisiana


60 million years ago, and, as you can see, it doesn’t exist,

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because the entire State was created through a deltaic plain


through the Mississippi River system.


Again, not saying you are trying to be egregious or regulate my


house, but, potentially, if someone wanted to be egregious, I am


concerned that could be the case.


Lastly—and I think this is one of the bigger ones. This is south


Louisiana. And I want to be clear, Administrator—and Secretary


Darcy and I have known each other for a while, but I am not a


knuckle-dragger. I am not a guy who is sitting here saying, let’s


pave all the wetlands. I believe that in my previous life I have


probably restored thousands of acres of wetlands and probably, in


the last 6 years, more than your two agencies combined,


uncompelled, not for mitigation purposes, because it was my job.


And so I am a big believer, defender of wetlands.


But we have lost 1,900 square miles of wetlands in south Louisiana.


The big concern that I have is that the majority of this loss


is attributable to channelization of the Mississippi and Atchafalaya


Rivers. That was an action of the U.S. Army Corps of Engineers.


This is the greatest historic, current, and prospective rate of jurisdictional


wetlands loss in this Nation. And the agency that is


now being charged with the actual administration of these regs,


these potential regs, is the greatest cause of wetlands loss in the


United States.


The hypocrisy there and the lack of credibility is, I think, one of


the greatest concerns. Because the Federal Government, the Corps


of Engineers has not come in and restored these wetlands. They


have made our communities more vulnerable, and it is a great concern


on the part of the residents of south Louisiana.


Thank you.

Mr. GIBBS. The gentleman’s time has expired.




Mr. Perry, you are recognized for 5 minutes.

Mr. PERRY. Thank you, Mr. Chairman.




Over here. Ladies, thank you very much for your patience. I


know it has been a long that day. And I think that is maybe a testimonial


to how important this subject is to everybody and every


State and every Representative in every State. We really can’t help




And, with all due respect, I think that—I come from Pennsylvania—


when you say that the Agency has worked hand-in-hand,


my experience as a civilian, as a legislator in Pennsylvania is that


we have felt put upon by the Agency and in a very heavy-handed


way that has been punitive and that has been uneven in its meting


out of penalties and of solution sets that we have been forced to


abide by.


And so, because of that, we have, I think, a reasonable trust


issue. And because of the scope of this—and when the Agency characterized


‘‘navigable’’ in the same context as ‘‘subsurface connections,’’


you know—I said to a lady at a hearing in Altoona on this


subject, I said, so you are telling me that the water that flows


through the rock strata and the limestone of Pennsylvania is to be


considered navigable, and it is navigable? And she said, yes, it is.


I said, well, I am waiting for the submarine that is drilling through


the rock and doing that, because I haven’t seen one yet, but maybe


DARPA has one. And so we are skeptical.

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But, with that, I want to give you a couple questions here.


You know, we have a clean streams law that gives our DEP jurisdiction


over all the commonwealth’s waters. And, under this


rule, there will be overlap in that jurisdiction, with this clarification,


as you call it. And, of course, there is going to be confusion


and costs with the additional layer, what we consider an additional


layer of regulatory authority.


Under the proposed rule, will Pennsylvania now only have jurisdiction


over those waters specifically excluded from inclusion in the


rule, i.e., or what I would characterize as groundwater and ditches


that drain uplands only?

Ms. MCCARTHY. I am not sure I understood the question because




you had a couple of negatives in there. Can you just do it again?

Mr. PERRY. OK. I will try and be more clear.




Mr. PERRY. Under the proposed rule, will Pennsylvania now only




have jurisdiction over those waters specifically excluded from inclusion


in the rule? So everything that is specifically excluded would


be under Pennsylvania’s jurisdiction, i.e., what we—and I clarify


that by saying groundwater and ditches that drain upland only.

Ms. MCCARTHY. No, that wasn’t the intent. If you are excluded




from the Clean Water Act in the final rule, then that would not be


jurisdictional under Federal law.

Mr. PERRY. OK. And that is a concern.




In addition to that, during and after local development, who has


jurisdiction over swales, basins, ponds, and ditches that will be constructed,


altered, filled in, left for drainage, and/or questioned? And


how will the answer to those questions—how will they come about?


What is that process? And who is paying for that?

Ms. MCCARTHY. Nobody is changing who has jurisdiction to implement




the rule or the relationship between the Federal Government


and the States to actually address these Federal issues. Nothing


has changed.

Mr. PERRY. So if during—




Mr. PERRY. I am sorry.


Ms. MCCARTHY. I am sorry. I just wanted—it is a function of the




Clean Water Act and how it is implemented today.

Mr. PERRY. So if during construction there is a nexus made by




what is now not considered navigable but someone considers it,


some—the Corps comes out—I have done work with the Corps; I


used to fly with them and do jurisdiction and so on and so forth—


and comes out and says, this falls within the jurisdiction, and the


local conservation district says, no, it doesn’t, what is the answer?


What is the redress?


Because somebody is standing there with a machine that costs


$500 a day and workers and so on and so forth, and here we are.


So what is the conclusion to that? What is the process for adjudication?

Ms. DARCY. If a person is seeking a permit or seeking a jurisdictional




determination of a water in order to go forward with a construction


project of some kind, the Corps of—

Mr. PERRY. With all due respect, what happens is that somebody




comes and visits during the project and makes the claim at that

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time, at that location, at that time, and everything stops until it


is resolved. I am looking for the resolution process, if it is being


changed, or what you foresee based on the scenario that I have portrayed.

Ms. DARCY. The resolution process that you just portrayed would




not be changed by this proposed rule. Is that your question?

Mr. PERRY. If that is your answer, that is fine. That is not what




people believe, but I will accept your answer.


And, finally—ah, my time has expired. Thank you, Mr. Chairman.

Mr. GIBBS. Ms. Comstock, you are recognized for 5 minutes.


Mrs. COMSTOCK. Thank you, Mr. Chairman. I have no questions.


Mr. GIBBS. That speeds it up.




Mr. Davis, you are recognized for 5 minutes. And I am sure you


have questions.

Mr. DAVIS. Thank you, Mr. Chairman. You are correct.




I wish I had something like a big portrait to have Mr. Graves


drag his knuckles over here and hold it for me, but—

Mr. GIBBS. Well, at least the House pictures got bigger than the




Senate’s as we went on.

Mr. DAVIS. We are the House.




Thank you very much, Secretary Darcy and Administrator


McCarthy, for being here today.


As this hearing is about WOTUS, you have heard a lot about the


impact or possible impact of the proposed rule on our ag community,


and I think there is really a trust gap between both your


agencies and our farmers. And that is why one of the things I advocated


for in the farm bill was to include agriculture to have a seat


at the table as part of your EPA Science Advisory Board.


In my view, it has been a slow rollout. I know applications are


being accepted till March 30th. And as you review the candidates,


I want to make it very loud and clear that our intent in negotiating


this bipartisan provision was to have voices on this committee that


didn’t only have scientific expertise but also real-life experience


with production agriculture. So having voices on this committee


with the real-world experience can help bridge this trust gap.


Can I have your commitment that you will honor our congressional


intent by ensuring that Members of this Committee will be


part of production agriculture?

Ms. MCCARTHY. I certainly will do the best and as expeditiously




as I can to meet what Congress has advised us we should do. And


I would look forward to the establishment of this committee so that


early on in every process we have an ability to hear what these informed


stakeholders have to say.

Mr. DAVIS. Well, thank you. As the author of that provision, I




mean, I am clearly stating for the record what our intent is: to


make sure that we have not just scientists but people involved in


production agriculture. So thank you.

Ms. MCCARTHY. But before you leave, I want to make sure that




you know that we did get a request from our ag stakeholders to extend


the time for nomination by 60 days.

Mr. DAVIS. Yes.


Ms. MCCARTHY. So I don’t want you to think we are being inconsistent





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Mr. DAVIS. I am not complaining about the process.




Mr. DAVIS. I just want you to know the intent of what the result




could and should be.


Secondly, I sent a letter to your agency on January 22nd in regards


to the Mahomet Aquifer and its proposed designation to be


considered a sole-source aquifer. That aquifer in central Illinois actually


serves over 700,000 people. And I would like you—I will submit


this letter to you and your staff to make sure your eyes see


this. And I would like to get an update from you, even after this


hearing, as to when we could expect a decision on this very important


issue to my constituents.

Ms. MCCARTHY. I am happy to look into it. Thank you.


Mr. DAVIS. Thank you.




And, lastly, there has been some concern being raised by many


of my colleagues, and I hope that this process is taken very seriously,


about this disconnect that we sometimes feel like we see.


And not just between the EPA as a whole and the Corps as a whole


and all of our districts; really, I think there is some disconnect between


what happens and what you think is happening out here in


Washington versus what your regional offices, your district offices,


are actually doing on the ground.


And just one of the last hearings we had with one of your deputies,


Mr. Perciasepe—forgive me if I have mispronounced his name.


‘‘Davis’’ is easier.

Ms. MCCARTHY. We will call him ‘‘Mr. P.’’ It is OK.


Mr. DAVIS. ‘‘Mr. P,’’ perfect. I haven’t gotten any feedback from




him when I asked him if, in this new provision, the clarification for


sewage treatment facilities, if it includes aboveground individual


septic system units. Will they be required to get a permit?

Ms. MCCARTHY. The clarity is, no, they won’t.


Mr. DAVIS. OK. Will you please, then, take the extra step and




call the Region 5 office and let them know that the NPDES permit—

Ms. MCCARTHY. You tricked me into this.


Mr. DAVIS. I tricked him, too. So, obviously, he didn’t talk with




you after that. But if you could—

Ms. MCCARTHY. If there is any lack of clarity, I will call.


Mr. DAVIS. Well, I have the frequently asked questions for the




NPDES permit—



Mr. DAVIS. —and it clearly uses the Clean Water Act as the justification




for asking my homeowners in many rural areas that I


represent to actually apply through the EPA for this national permit


just to be able to flush their toilet.


And where it disconnects with the proposed rule, the clarified


rule that we have been hearing all morning, is that, you know,


ditches that are excavated and have less than perennial flow are


supposed to not be regulated under the Clean Water Act. That is


where many of these discharges go, like in a swale between my


home. And gullies and rills and non-wetland swales are not to be



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So you can see the disconnect and the concern that my constituents


have when we see what is happening out here, what we are


being told, versus what is actually in action in the district. So—

Ms. MCCARTHY. Let me look at it and make sure that there isn’t




more to this than meets the eye. And I will certainly get back to


you as soon as—

Mr. DAVIS. I didn’t mean to throw Mr. P under the bus with you,




but I am glad I did.

Mr. GIBBS. The gentleman’s time has expired.


Mr. DAVIS. Thank you.


Mr. GIBBS. We got one more Member to ask questions, and then




we can finish up with this, and we will come back at 2 o’clock. So


Mr. Barletta will have 5 minutes, and then we will recess. And we


will start with the second panel at 2 o’clock.

Mr. BARLETTA. Thank you, Mr. Chairman.




Ms. McCarthy, in my flood-prone district, many of my constituents


live in the flood plain, and I share the concerns of them and


the local elected officials about the definition of a flood plain.


Some of our local officials even sent comments. Here I have comments


sent to the EPA about their concerns that the term ‘‘flood


plain’’ is not clearly defined. And I ask unanimous consent that the


county commissioners from Columbia County’s letter be part of the



Mr. GIBBS. Without objection, so ordered.




[The information follows:]******** COMMITTEE INSERT



Mr. BARLETTA. Can you define for me right now how this rule interprets




the term ‘‘flood plain’’?

Ms. MCCARTHY. Well, first of all, I think the confusion arose over




the fact that, when we spoke about flood plain, people thought we


were regulating land use instead of just indicating that if you intend


to pollute or destroy a wetland within a flood plain that we


need to have an exchange about how to do that appropriately so


you won’t impact down—

Mr. BARLETTA. Is the EPA’s definition of a flood plain the same




definition that FEMA uses to draw—



Mr. BARLETTA. —its flood maps—




Mr. BARLETTA. —and determine the 100-year flood plain?




Mr. BARLETTA. Are there maps of your flood plains?


Ms. MCCARTHY. That they produce.


Mr. BARLETTA. That who produces?




Ms. MCCARTHY. FEMA produces.


Mr. BARLETTA. And that would be the same definition that you







Mr. BARLETTA. You know, in Pennsylvania, agriculture is the




number-one industry, and I—

Ms. MCCARTHY. I certainly didn’t want—I want to make it very




clear, we did not intend that normal farming and ranching activi-

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ties would stop being exempt from 404 permitting. They are exempt,


and we are not intending to change that.

Mr. BARLETTA. OK. I just wanted to know the definition of a




flood plain by your standards, and they are the same as FEMA.

Ms. MCCARTHY. It is. Yes.


Mr. BARLETTA. And agriculture is the number-one industry, so




you can imagine, you know, why the Pennsylvania farmers are so


worried that, when it rains, that any wet spot within a flood plain


would be federally regulated. And as I have said once before, sometimes


a mud puddle is just a mud puddle. And they would like to


know that, that that is the case, and that is not how they feel right





Mr. BARLETTA. I have one more clarification I need. Railroads operate




approximately 140,000 miles of right-of-way. Maintenance of


ditches is critical to safe rail transportation, obviously. Identifying


rail ditches as ‘‘waters of the United States’’ would create regulatory


hurdles that would make it almost impossible for railroads


to perform prompt rail ditch maintenance due to the extensive permitting


delay and expense, leading to less safe rail transportation.


Previously, representatives from EPA have said railroad ditches


would not be subject to Clean Water Act jurisdiction under this


rule. Will the final rule make this clear?

Ms. MCCARTHY. Senator—Mr. Barletta—sorry—I will get back to






I know that we have expanded the definition of ditches that


would be exempt under the clean water rule to make it clearer. We


have addressed ditches that basically drain dry land along public


lands and highways. I am not sure of the conversation that has


happened with rail ditches, but I certainly can get back to you. And


if you have heard it, I am hoping there will be a comment in the


record, and we can take this into consideration and make any necessary



Mr. BARLETTA. Yeah. You would agree that this would cause a




safety issue, and, obviously, those delays would not be in the best



Ms. MCCARTHY. We have been really clear in this rule that any




ditch that is in dry land that doesn’t connect to a tributary below


is not going to have the significant nexus required to be jurisdictional


under the Clean Water Act.


So we will see. Instead of a sector-by-sector approach, we are


hoping to do this in a little more scientific and broad way. But we


will take a look at that issue and make sure that we have addressed



Mr. BARLETTA. And since I am the last speaker, thank God, I




think it is clear that, from coast to coast, I could tell you, I have


been called out to farms, I have been called out to you name it, the


situation where they have literally shown me—I had pictures on


my cell phone—literally shown me a ditch that is going to be regulated.


This is a problem from the east coast to the west coast, and


I hope we can see that it needs to be addressed.

Ms. MCCARTHY. It will. Thank you, sir.


Mr. BARLETTA. Thank you.




Thank you, Mr. Chairman.

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Mr. SHUSTER. [Presiding.] This concludes our first panel, so you




will be excused.


And we will reconvene—we are recessed for now, and we will reconvene


at 2 o’clock with the second panel.



Mr. GIBBS. OK. The committee will come back to order.




At this time, I would like to call up the second panel of witnesses.


It is promptly 2 o’clock, so we are getting started.


On our second panel, we have the Honorable E. Scott Pruitt, the


attorney general of the State of Oklahoma; the Honorable Adam H.


Putnam, Florida Commissioner of Agriculture, on behalf of the National


Association of State Departments of Agriculture; the Honorable


Sallie Clark, District 3 Commissioner for El Paso County, Colorado,


on behalf of the National Association of Counties; the Honorable


Timothy Mauck, District 1 Commissioner for Clear Creek


County, Colorado; and Lemuel Srolovic, Environmental Protection


Bureau chief for the New York State attorney general.


Hope I got your name right.

Mr. SROLOVIC. You did. It is a tough one.






I ask unanimous consent that all witnesses’ full statements be


included in the record.


Hearing no objection, so ordered.


Since your written testimony has been made part of the record,


please limit your summary to 5 minutes if you can.


And, Attorney General Pruitt, welcome, and you may proceed.

Senator INHOFE. Sorry.


Mr. GIBBS. Go ahead.


Senator INHOFE. I want to make a brief—it will be a very brief




introduction. But, you know, a lot of times, you have people from


your own State come in, and you want to participate in it. In this


case, this is one who is not just really a great attorney general and


one who is doing things that other attorneys general are not doing,


but he also is a best friend.


So I was delighted, Scott, to have you here and participating in


sharing your thoughts with us today.


























Mr. PRUITT. Well, you are very kind, Senator Inhofe. Thank you




for those kind comments.


Chairmen Inhofe and Shuster, Ranking Members Boxer and


DeFazio, members of the Senate Committee on Environment and

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Public Works and House Committee on Transportation and Infrastructure,


thank you for this opportunity to discuss the Environmental


Protection Agency’s proposed rule to redefine ‘‘waters of the


United States’’ and the significant negative impact such a rule


would inflict on States and landowners within our borders.


Respect and protection of private-property rights sets the United


States apart from other nations and has fueled the greatest expansion


of economic freedom the world has ever known. Indeed, private-


property rights are among the foundational rights of any functional


democracy, not just our own.


President Obama’s EPA currently stands poised to strike a blow


to private-property rights through a proposed rule that unlawfully


expands EPA’s jurisdiction by subjecting land-use and water-management


decisions, historically reserved to the States, to the heavy


regulatory hand of the Federal Government.


The proposed rule aims to redefine what constitutes a navigable


water or ‘‘waters of the United States,’’ a term that has long been


understood to include only significant bodies of water capable of


serving as conduits for interstate commerce. The proposed rule redefines


those terms to now include virtually every body of water in


the Nation right down to the smallest of streams, farm ponds, and


ditches. This is a naked power grab by the EPA.


Now, don’t get me wrong. The EPA should have a role in solving


and contributing to interstate water-quality issues and answers.


But when having a role becomes having regulatory primacy at the


expense of State authority, the will of this body is undermined, and


landowners and States end up the losers, as they are left to the


mercy of Agency power, absent a voice, when the system wrongs


them. And wrong them it will.


Simply put, the proposed rule is a classic case of overreach and


flatly contrary to the will of Congress, who, with the passing of the


Clean Water Act, decided that it was the States who should plan


the development and use of local land and water resources.


The EPA has generally been unresponsive to concerns expressed


by States, local governments, and individual citizens, with their


primary tactic being a public relations campaign designed to sway


opinion and rule America. EPA Administrator Gina McCarthy has


been documented as dismissing many concerns wholesale, calling


them ludicrous and silly, while also asserting that the proposed


rule is all about protecting waters, quote/unquote, and providing




To Administrator McCarthy, who appeared before you today, I


say, forgive the skepticism of the States, but these reassurances


are from the same administration that said, if you like your health


insurance, you can keep your health insurance. So, as the old


adage says and commends us, trust, but verify. And though we


would like to trust the EPA’s intent, something doesn’t add up.


This rule smells far more like—far more than a clarification. Indeed,


it reeks of Federal expansion, overreach, and interference


with local land-use decisions.


Notably, there are several United States Supreme Court decisions


illustrating that the intended regulatory jurisdiction of the


EPA has been limited to the navigable waters of the United States,


with all other waters rightly left to the States to regulate.

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At the time that the Clean Water Act was passed, the Supreme


Court had previously defined ‘‘navigable waters of the United


States’’ as interstate waters that are navigable in fact or readily


susceptible of being rendered so.


In recent cases, the Supreme Court has made clear that any examination


of Federal jurisdiction must first begin with an understanding


that Congress intended the States to retain primacy over


the development and use of local land and water resources. With


the proposed rule, the EPA is ignoring this core tenet of the CWA


and endeavoring to write itself a regulatory blank check.


On another note, and critically, the proposed rule includes a


vague catchall category, defeating the EPA’s claimed purpose of the


rule providing transparency, predictability, and consistency to the


scope of the CWA jurisdiction. Instead, the EPA has simply redefined


the meaning of ‘‘navigable waters’’ in an extraordinarily


broad way so that any landowner may be subject to owners permitting


requirements or severe civil penalties if violated, even if unknowingly.


Oklahoma has seen firsthand, Senator, how the Federal Government,


specifically the EPA, abuses its regulatory power in States


that have interest in energy, farming, and ranching. The States are


not and should not be used as a vessel to carry out the will of regulators


in Washington, who often seem to have little regard for how


their actions negatively impact the economy and private-property




During the comment period for this rule, Oklahoma filed its objections.


In fact, my office led a coalition of 16 States to file comments


about the lawfulness of this rule, or unlawfulness of it. Additionally,


as the chief law enforcement officer of the State of Oklahoma,


I can say with confidence that, if the EPA continues forward


with this rule as proposed, the rule will be challenged in court.


If this rule is issued as proposed, we will all live in a regulatory


state where farmers must go before the EPA to seek permission to


build a farm pond to keep their livestock alive, where homebuilders


must seek EPA approval before beginning construction on a housing


development that contains a dry creek bed, and where energy


producers are left waiting for months or even years to get permits


from the EPA, costing producers tens, if not hundreds, of thousands


of dollars that inevitably will be passed on to consumers.


Chairmen Inhofe and Shuster, Ranking Members Boxer and


DeFazio, the EPA’s proposed rule is unlawful and should be withdrawn.


We urge the EPA to meet with State-level officials, who can


help the agency understand the careful measures the States already


have in place to protect and develop the lands and waters


within their borders. But most of all, we urge the EPA to take note


of the harm that this rule will do to the property rights of citizens


across the country and their ability to make land-use decisions.


Thank you, Chairman, for the opportunity to speak to you today.


[Mr. Pruitt’s prepared statement follows:]******** INSERT 4–1



Mr. GIBBS. Thank you.




Mr. Putnam, you have the floor. Welcome.

Mr. PUTNAM. Thank you, Mr. Chairman.





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And I think I liked the old view better than this view, but I sincerely


hope that the plague which has overtaken these two great


committees will pass quickly, and our prayers will be with the


Members who are unable to join us for this.


But it is a pleasure to be on this panel and to represent not only


the Florida Department of Agriculture and Consumer Services but


also the National Association of State Departments of Agriculture.


I come here as a farmer of citrus, a cattleman, a former Member


of Congress, and an agriculture commissioner and someone who


has dedicated much of my career to water policy, water resource


development issues. I am proud of the record that our State has in


protecting water, including through agricultural best management


practices, putting 10 million acres of agricultural lands in the State


under best management practices, or 90 percent of our intensive


agricultural lands, and saving 20 billion gallons per year of water


through those practices.


The EPA asserts that the purpose of this rule is to clarify which


waters are and are not subject to the Clean Water Act. The EPA


claims that the proposed regulations will not significantly change


what currently is considered ‘‘waters of the U.S.’’ They also claim


that the proposed regulations will not substantially affect regulated


communities like ours. I believe this is yet another attempt by the


EPA to regulate areas outside their authority and in contradiction


to guidance given by the courts.


Counter to the claims by the EPA regarding intent, the proposed


rule, in fact, will lack clarity, significantly expand Federal jurisdiction,


impose burdensome requirements on agricultural producers,


and impede efforts to protect and restore the environment.


The proposed rule creates more ambiguity regarding what areas


are subject to the requirements of the Clean Water Act and will


most certainly result in an expansion of jurisdiction. Specifically,


the proposed rule does not clearly define ‘‘adjacent,’’ ‘‘neighboring,’’


‘‘riparian area,’’ and ‘‘flood plain.’’ In combination, the application


of these terms expand Federal jurisdiction to include all wetlands


or other waters similarly situated across a watershed or that share


a shallow, subsurface hydrologic connection.


What is more concerning is the intent by the EPA and the Corps,


as communicated in their narrative accompanying the rule, to


evaluate application of ‘‘flood plain’’ and ‘‘watershed’’ on an individual


basis. I fail to see how individual interpretation by EPA and


Corps staff guarantees clarity to the regulated community in implementation


of this rule.


Further, the EPA failed to take into account the unique landscape


of States like Florida when developing their approach. Florida’s


flat topography and broad expanse of flood plains, wetlands,


and sloughs could subject nearly all of Florida’s water to Federal


jurisdiction under the Clean Water Act.


Under this rule, isolated wetlands located miles from the nearest


navigable water and never before considered jurisdictional would


now be defined as ‘‘waters of the U.S.’’ simply because they are located


in the same watershed and, therefore, under Federal jurisdiction.


Even concrete-lined conveyances and other manmade systems


intended to capture and treat stormwater could be subject to Federal



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An independent analysis by Breedlove, Dennis, and Associates,


an environmental firm, found in specific instances where the proposed


rule, if implemented, would expand jurisdiction from 13 to 22


percent on the two subject parcels alone.


Across the Nation, farmers and ranchers are good stewards of


the land, and the expansion of the Federal jurisdiction under this


rule will deem many areas of farm land as ‘‘waters of the U.S.’’


and, therefore, subject to Federal jurisdiction.


With more areas of farmland categorized as ‘‘waters of the U.S.,’’


farmers will be forced to obtain new permits, including section 402


and 404 permits. The requirement to obtain additional permits will


involve fees for attorneys and technical consultants, whose expertise


is required to ensure an accurate application. An independent


analysis conducted in 2002 revealed that section 404 permits cost


an average of $338,000, or $300,000 more than the permit required


for areas not considered ‘‘waters of the U.S.’’


As a national leader in water-quality protection and restoration,


the State of Florida works closely with the EPA. And EPA, in the


past, has actually praised the work that we do as being among the


most rigorous protections in the Nation. But these proposed requirements


will impede and, in some cases, dismantle environmental


programs statewide.


The expansion of Clean Water Act jurisdiction to marginal waters,


such as stormwater ditches and ponds, will actually have the


effect of diverting local, State, and even Federal funds from restoration


efforts for truly critically impaired and important natural


areas. So, instead of funding those priorities, limited resources will


be diverted toward municipal storm system upgrades.


Florida’s best management practices are an example where farmers


and ranchers work cooperatively and in partnership to improve


wetlands and watershed areas. The implementation of this proposed


rule and the associated expansion of Federal jurisdiction will


decrease landowner willingness to voluntarily participate in these


programs. The proposed rule will decrease wetland protection and


restoration in our State because landowners will now fear that


their restoration activities will bring them under Federal wetlands




Thank you, Mr. Chairman, for the opportunity to be here, and I


look forward to your questions.


[Mr. Putnam’s prepared statement follows:]******** INSERT 4–


2 ********

Mr. GIBBS. Senator Inhofe, I recognize you.


Senator INHOFE. Thank you, Mr. Chairman.




I would ask unanimous consent that Senator Cory Gardner be


recognized for the purpose of introducing his good friend Commissioner



Mr. GIBBS. So ordered.


Senator GARDNER. Thank you, Mr. Chairmans.




And thank you very much to the committee for allowing me to


be here today to introduce not only Commissioner Clark but also


to welcome Commissioner Mauck, as well, from Colorado. And I


know that Senator Bennett was here earlier but, due to scheduling


conflicts, unable to, so please welcome both of you.

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To the committee, thank you for holding this very timely hearing


to discuss the EPA–Army Corps of Engineers’ proposed regulation


on ‘‘waters of the United States’’ under the Clean Water Act as we


continue to visit this very important discussion.


It is vital to the Federal Government and Congress have a comprehensive


understanding of the potential impacts that this rule


would have on our Nation’s counties, particularly those counties in


the western parts of the United States, where our water and our


water law is unique to any other place in the Nation. In Colorado,


it is the only State in the 48 contiguous States that all water flows


out of and not into, presenting a unique challenge for all of us.


In your effort to do so today, to discuss this issue, I am pleased


that you have invited Sallie Clark today. And I am honored to introduce


Commissioner Sallie Clark of El Paso County, who is testifying


on behalf of the National Association of Counties.


Commissioner Clark serves as the vice president of the National


Association of Counties and has been a longtime advocate for—and


recent upgrades, recent new promotions—longtime advocate for


Colorado, local government, and unwarranted Federal mandates to


and on our States.


And I appreciate your willingness and your commitment and


dedication to public service.


You know, it has been an incredible, challenging couple of years


for El Paso County, Colorado, dealing with forest fires and floods.


And in conversations with water districts, conservation districts in


Colorado, they continue to believe that, under the ‘‘waters of the


United States’’ rule, it could be very devastating for their ability to


deliver water for the needs of their customers, their constituencies,


and, indeed, the people of Colorado.


With the EPA’s own studies showing that 68 percent of the


streams in Colorado are intermittent, this proposal will have major


impacts on all Coloradans, including the energy and agricultural




If you go into the State capitol of Colorado, as both commissioners


know, there is a poem written on the wall right in the rotunda


that says—and it starts out by saying this: ‘‘Here is a land


where life is written in water.’’ Water is tied to Colorado’s history,


our land, and our success. And the last thing we need is for the


Federal Government to destroy that incredible legacy that we have


with a regulation that goes too far in impacting our agriculture,


our land, our water, and our people.



Mr. GIBBS. Thank you.




Commissioner Clark, welcome. The floor is yours.

Ms. CLARK. Thank you, Senator, so much.




Thank you, Chairmen Inhofe and Shuster, Ranking Members


Boxer and DeFazio, and Members of the Committee, for the opportunity


to testify today on the ‘‘waters of the United States’’ proposed


rule and the potential impact on State and local governments.


My name is Sallie Clark, and I am the first vice president of the


National Association of Counties, the only national organization


that represents county governments. For the past decade, I have


served as the county commissioner in El Paso County, Colorado,

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the home of Pikes Peak. My county is considered urban, with a


population of over 640,000, but with a mix of suburban and rural


areas and over 113,000 acres of Federal land.


In all my travels as a NACo leader, I have heard concerns from


across the country about how counties could be affected by the proposed


rule. Hearing these concerns and working closely with our


technical experts, county engineers, legal staff, public works directors,


and stormwater managers, NACo ultimately called for the


proposed rule to be withdrawn until further analysis and consultation


with local officials is completed. This decision was not taken




I want to be clear: Counties support clean water. Our goal is to


ensure the public safety and economic vitality of our communities


while protecting water quality. In my county and others, we accomplish


this through zoning and ordinances, regulating stormwater


runoff, prohibiting illegal discharges, and establishing penalties for




That said, I am here today to share with you the four main reasons


we decided to call for the withdrawal of this proposed rule.


First, this issue is so important because counties build, own, and


maintain a significant portion of public safety infrastructure, and


the proposed rule would have direct and extensive implications.


Local governments own almost 80 percent of all public road miles


and also own and maintain roadside ditches, flood-control channels,


stormwater systems, and culverts. Defining which waters and conveyances


fall under Federal jurisdiction has a direct impact on


counties, as we are legally responsible for maintaining public-safety


ditches and other infrastructure.


Second, the agencies developing the proposed rule did not sufficiently


consult with local governments. Counties are not just stakeholders


in this discussion; we are partners in our Nation’s intergovernmental


system. By law, Federal agencies are required to consult


with their State and local partners before a rule is published and


throughout its development. Although EPA did initiate discussions


on guidance documents, we were not consulted through the 17


months between the guidance consultation and the introduction of


the proposed rule, despite repeated requests.


This leads to my third point. Due to this inadequate consultation,


many terms in the proposed rule are vague and create uncertainty


and confusion at the local level. For example, the proposed rule


now defines terms like ‘‘tributary,’’ ‘‘significant nexus,’’ ‘‘adjacency,’’


‘‘riparian areas,’’ and ‘‘flood plains.’’ Depending on how these terms


are interpreted, additional public infrastructure could fall under


Federal jurisdiction. The proposed rule, as currently written, only


adds to the confusion and uncertainty over how it will be implemented


consistently across all regions.


Our fourth and final reason for calling for the withdrawal is that


the current permitting process tied to ‘‘waters of the U.S.’’ already


presents significant challenges for counties. The proposed rule only


complicates matters. For example, 1 Florida county applied for 18


maintenance exemptions on the county’s network of drainage


ditches and canals. The permitting process became so cumbersome


that the county had to hire a consultant to compile all of the technical


material required. And, 3 months later, as the county moved

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into its rainy season and after spending more than half-a-million


dollars invested, decisions on 16 of the exemptions were still pending.


Ditches began to flood, putting the public at risk. And this is


just one of many examples.


In conclusion, while many have attempted to paint this as a political


issue, in the eyes of county government this is a matter of


practicality and partnership. We look forward to working with you


and the agencies to craft a clear and workable definition of ‘‘waters


of the U.S.’’ that achieves our shared goal, which is to protect water


quality without inhibiting the public safety and economic vitality of


our communities.


Thank you again for this opportunity.


[Ms. Clark’s prepared statement follows:]******** INSERT 4–3



Mr. GIBBS. I thank you.




Mr. Mauck, the floor is yours. Welcome.

Mr. MAUCK. Thank you. Chairmen Inhofe, Shuster, Ranking




Members Boxer and DeFazio, I appreciate this opportunity to testify.


My name is Timothy Mauck. I was elected to the Clear Creek


Board of County Commissioners in 2010 and reelected in 2014.


As a county commissioner, I want to convey how important clean


water is for my community. The proposed Clean Water rule will


protect the headwaters, tributaries, and wetlands that are essential


for providing the high-quality water that supports the hunting,


fish, rafting, and outdoor recreation that are an economic backbone


of my community. Clean water from streams and wetlands also


provide drinking water for thousands of our residents.


Clear Creek County is truly a headwater county. We are bordered


by the Continental Divide and provide clean water for downstream


communities within the Denver metropolitan area. We are


also facing the legacy impacts of historic silver and gold mining.


We have struggled with maintaining water quality due to mine


runoff and have worked consistently to treat contaminated water


and reclaim abandoned mine sites.


I know too well the impacts of contaminated water and the cost


and time it takes to mitigate and treat it. I also know Clear Creek


has made a remarkable rebound over the past 30 years as we have


all made progress, like so much of the country, toward the Clean


Water Act goals of fishable, swimmable waters.


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


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


recreation destination. By river segment, Clear Creek hosts the second


most commercial rafting trips in Colorado. Whitewater rafting


alone has a total economic impact to the community of approximately


$23 million annually. Hunting and angling generates a


total economic impact of nearly $6 million to the county.


This is not only the story of Clear Creek but also across Colorado


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


hunting and angling’s total economic impact is $192 billion.


Outdoor recreation in Colorado generates $13.2 billion and employs


more than 124,000 people. Across the country, it generates $646


billion and 6.1 million jobs.

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Many of these jobs are dependent on clean water and will benefit


from the EPA and Army Corps of Engineers’ efforts. In fact, 55 percent


of stream miles in the historic range of native trout in our


State are intermittent or ephemeral and would clearly be protected


by the Clean Water rule.


Even with seasonal flows, these waters provide habitat for trout


or simply maintain the water quality needed by fish in downstream


rivers. And as an avid waterfowler, I have spent many cold mornings


in the wetlands, sloughs, and creeks feeding the South Platte


and know how important it is to protect these places from irresponsible




As an elected official with the responsibility of looking after our


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


The EPA and Corps of Engineers have consistently demonstrated


that this rule is not an expansion of the Clean Water Act


authority. It will restore jurisdiction to fewer of the waters than


had been covered from the passage of the Clean Water Act in 1972


until the first Supreme Court decision in 2001 weakened the law.


During that time period, the population of Clear Creek County


increased from approximately 5,900 to 9,400 individuals. Colorado’s


population doubled from 2.2 million to 4.4 million. The State’s


gross domestic product increased more than tenfold, from $13.6 billion


to $181 billion. Furthermore, natural gas production increased


from 116 trillion cubic feet to 817 trillion cubic feet, and coal production


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


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


An expansion of Interstate 70 is underway and, along with it, a


growth in home and road development from those from the nearby


metropolitan area seeking solace in the mountains.


In addition, we face a challenge of economic diversification as we


approach the end of life of the Henderson mine, which provides a


large portion of our property tax base. There are hundreds of mine


claims that exist in undeveloped or undeveloped areas, many of


which are very near headwater streams. The rule will help us balance


the need for diversification while providing the necessary protection


for streams and wetlands as we encourage development of


all kinds.


If opponents of the rule were worried about returning to the previous


jurisdiction of the Clean Water Act, they should realize that


protecting intermittent and ephemeral streams and wetlands is


fully consistent with population growth, energy production, and


economic development writ large. I am ready to have my county’s


headwaters and wetlands clearly protected under the Clean Water




Thank you, Mr. Chairman.


[Mr. Mauck’s prepared statement follows:]******** INSERT 4–4



Mr. GIBBS. Mr. Srolovic, welcome. The floor is yours.


Mr. SROLOVIC. Thank you.




Good afternoon, Chairmen Inhofe and Shuster, Ranking Members


Boxer and DeFazio, and members of both honorable committees.


I am Lem Srolovic, the environmental bureau chief in the office


of New York State Attorney General Eric Schneiderman.

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Thank you for this opportunity to discuss with you the proposed


‘‘waters of the U.S.’’ rule.


Back when I was a boy growing up in Wildwood, Georgia, in the


early 1970’s, many of the creeks and rivers where I hunted and


fished were in a sorry state. The Tennessee River was contaminated


with toxic industrial waste. When my brother and I floated


down Lookout Creek, it started stinking when we reached the railway


yards in Wahatchee.


But the pollution problems in my boyhood waters were not local;


they were not regional problems. They were national problems. Up


in New York, the Bronx River, once the home of beavers, was described


as an open sewer. In central New York, people driving by


Onondaga Lake during the summer rolled up their windows because


the lake smelled so bad.


Fortunately, Congress responded and in 1972 passed the Clean


Water Act. With the act, Congress fundamentally rewrote Federal


water pollution control law. The old law had addressed water pollution


by authorizing Federal cures for water pollution problems on


an ad-hoc, water-by-water, problem-by-problem basis, but that narrow


approach had failed. With the Clean Water Act, Congress replaced


that failed scheme with a comprehensive approach to pollution




The waters protected by the act are broad, covering, as the U.S.


Supreme Court has written, virtually all surface waters in the


country. With the act, Congress implemented the tried and true


principle that an ounce of prevention is worth a pound of cure.


In the ensuing years, the States, EPA, and the U.S. Army Corps


together have implemented the statute, and it is working. My boyhood


Lookout Creek now hosts a popular nature center. A beaver


has returned to the Bronx River. And Onondaga Lake now is one


of America’s top 10 bass fishing destinations.


With the proposed rule, the Federal agencies that Congress


charged with implementing the Clean Water Act are doing their


job. They are providing much-needed clarification to the question


of whether the law applies to a particular water body. Presently,


jurisdiction decisions are made on a case-by-case basis subject to


fractured and inconsistent legal interpretation by the courts. The


result is uncertainty, delay, and further litigation. By clarifying


where the law applies, the rule will accelerate jurisdiction decisions


and make them more predictable and less costly.


The proposed rule is grounded in solid, peer-reviewed science.


EPA’s science report is based on more than 1,200 peer-reviewed scientific


studies and has been affirmed by the Agency’s independent


Scientific Advisory Board. The science report shows the powerful


influence that upstream waters have on the physical, chemical, and


biological integrity of downstream waters.


It is important to note that each of the continental States is both


upstream and downstream of one or more other States. New York,


for example, is downstream of 13 States and is upstream of 19. The


proposed rule advances the Clean Water Act’s protection of State


waters downstream of other States by anchoring a nationwide Federal


floor for water pollution control. The floor is critical for maintaining


the consistency and effectiveness of the downstream States’


water pollution programs. This is because the Federal statute pre-

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empts many common-law remedies traditionally used to address


interstate water pollution, leaving the Clean Water Act as the primary


mechanism for protecting downstream States from the effects


of upstream pollution.


Critically, by protecting interstate waters, the proposed rule allows


States to avoid imposing disproportionate and costly limits on


dischargers in their own State in order to offset upstream discharges


which might otherwise go unregulated.


A robust Clean Water Act is important to States and municipalities


because, by protecting our waters, it keeps billions of dollars


in taxpayers’ pockets and supports our State economies. In the interest


of clean water, the health and welfare of our citizens, and


the economy of our States, we should not go back to failed approaches.


We should go forward with what is working.


The ‘‘waters of the United States’’ rule provides much-needed


clarification regarding the applicability of the act and anchors an


essential nationwide Federal floor for water pollution control.


We look forward to the completion of a final rule, and I look forward


to answering any questions.


[Mr. Srolovic’s prepared statement follows:]******** INSERT 4–


5 ********

Mr. GIBBS. Thank you.




I recognize Senator Inhofe for 5 minutes. Thank you.

Senator INHOFE. Thank you, Mr. Chairman.




I will start off with my good friend Scott Pruitt.


Now, confession is good for the soul. I am not a lawyer, and so


I have to ask some obvious questions of people who are lawyers.


Now, I want to read something, and tell me, if you would, General,


what is ambiguous about this language.


Section 101(g) of the CWA states—and this is a quote. It says,


‘‘The authority of each State to allocate quantities of water within


its jurisdiction and that shall not be superceded, abrogated, or otherwise


impaired by this act.’’


What is unclear about that?

Mr. PRUITT. Mr. Chairman, I don’t think much. And I don’t think




that it takes a legal mind to draw that conclusion.


I would add this, as well: The CWA states in its text that agencies


must recognize, preserve, and protect the primary responsibilities


and rights of States to plan the development and use of land


and water resources.


This body, Congress, recognized at the creation of the Clean


Water Act that the role of the States was important, but, more


than important, it was primary in land-use and water-management




In the State of Oklahoma, we have a water resources board that


is required to measure out permits to those that seek to use water


in the State. We have a DEQ that is consistently involved in waterquality




The decision and the discussion here today is not whether the


EPA has any role in the process. They, in fact, do. But they only


have a role when we have navigable waters, interconnectivity, because


jurisdiction is at issue here, Mr. Chairman. And I think the


EPA, through this redefining of ‘‘waters of the United States,’’ is

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seeking to extend its authority to displace and duplicate the States’



Senator INHOFE. You know, Commissioner Putnam and Commissioner




Clark both said statements to the effect that we in Colorado,


we in Florida want clean land, we want clean air, we want clean


water. Why do you feel it is necessary to reaffirm that?


And I won’t ask you to answer it, because I will answer it for


you. There is this assumption that no decisions are good decisions


unless they are made in Washington. And whether you picked it


up or not during the opening statement of the first panel, they


feel—and those individuals who are embracing their new authorities


that they are seeking are ones who do not believe that you are


capable in the States to do as good a job as they would do in the


Federal Government.


What do you think of that?

Mr. PRUITT. Well, Senator, I think, in many instances, even beyond




the Clean Water Act, there are those in Washington that populate


the EPA and other agencies that see the States as a mere


vessel of Federal will. And so long as the States agree with the


view and the perspective of the agencies here, there is no conflict.


But when there is disagreement about how decisions should be


made—and I would add this, decisions that have been reserved by


this body, by Congress to the States—that is when the competition


and the conflict arises.


And that is what we have here. We have a situation where the


EPA is extending its authority into areas that are historically and,


I might say, almost exclusively the purview of the States. And they


are doing so because they want to dictate to the States how we


should manage our water and use our water.

Senator INHOFE. Well, I appreciate that. And we live with this




on a daily basis.


There is some other language in here I am going to ask the three


of you to respond to, because when I first read this, I know how


I interpret it. It says that agencies have told States that these


rules will not actually provide any certainty because most of the


decisions are left to the, quote, ‘‘best professional judgment of the


EPA and the Corps of Engineers.’’


What do you think about that language?

Mr. PRUITT. Well, I think that and also what the commissioner




mentioned, Mr. Chairman, about the catchall category, there is a


catchall category the EPA is proposing with this rule that they say


the purpose is to provide transparency and predictability and consistency


with respect to the scope of the CWA, that when it is reduced


down to the discretion, the judgment on a case-by-case basis,


that definitely does not provide certainty and predictability—

Senator INHOFE. Uh-huh.


Mr. PRUITT. —to those folks that are regulated across the country.




You know, the greatest benefit that we have of rule of law and


regulation is that those that are subject to regulation know what


to expect and know how to conform their conduct. And when we


have decisions made on a case-by-case basis, that is almost impossible


to happen.

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And so, Senator, I am very concerned not only about what you


have raised but also this catchall category that we have already



Senator INHOFE. Yeah.




And to Commissioners Putnam and Clark, does that phrase concern


you as much as it does me?

Ms. CLARK. Thank you, Senator.




Yes, it does. And I heard the EPA this morning even say that


it was confusing; there were a lot of components that are still confusing.


It broadens the number of county-maintained public safety


ditches and infrastructure that would require section 401 or 404


Federal permits, and it is a process that is already cumbersome.


There are counties across the Nation that I can look to examples


where it has increased the length of time. The clarity is a problem


as to how it is being enforced by regions as well as the headquarters.


And I think we heard today that very thing, that there is ambiguity


and clarification, and we need to be at the table to help solve


that problem.

Senator INHOFE. Thank you.


Mr. GIBBS. Mrs. Napolitano, the floor is yours.RPTR




Mrs. NAPOLITANO. Thank you, Mr. Chairman.




There is an area that we really haven’t delved into, and that is


the cost of inactivity. And I would like to ask either Mr. Mauck or


Mr. Srolovic.


Several comments on the proposed rules have expressed concerns


about the costs associated with the rule. But in your personal view


or that of your organization, is there a cost associated with the inactivity


when compared to the existing rule?

Mr. SROLOVIC. Thank you.




I believe there is a cost, and I think the cost is positive. As


things exist now, there is fractured conflicting case law. The courts


have invited the agencies to clarify that through a rulemaking.


And so I think that, as time goes by and the status quo remains,


there will be a continuing cost in greater delay of jurisdiction. I


think the rule will very much help clarify when, in most cases, the


law applies and when it does not.


It is not perfect. It is undergoing further work. There has been


a lot of comments. But I think it will help bring down the cost over


the status quo.

Mrs. NAPOLITANO. Mr. Mauck?


Mr. MAUCK. Yes, if I may. Thank you for the question.




As a headwater county, we are consistently under scrutiny in


terms of the water and the water quality that flows out of our


county and downstream to other users. And for a small county, the


treatment of that water continues to increase and it becomes very


expensive for us.


And the assurances that we could put in place to assure that the


intermittent streams, the headwater, especially in a former mining


community like mine where we still have sites out there—that the


water that is—it is coming down from those streams are protected.


The cleaner that that water is coming into our systems, the cheap-

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er it is for us, and easier for us to send better quality down the



Mrs. NAPOLITANO. Thank you, sir.




Mr. Srolovic, suggestion has been made that New York State is


opposed to the rulemaking. And is this position true?

Mr. SROLOVIC. Congresswoman, I think there are two points




here. The answer is no. New York is not opposed to the rule.


Our Environment and Agricultural Commissioner in New York


strongly support agency rulemaking to anchor a Federal water pollution


control floor on a national level, which is essential to protect


States from upstream pollution. The commissioners raised some


concerns about the lack of pre-rulemaking consultation with States


and some of the definitions of certain terms in the proposed rule.


While consultation before is always better than after, the Corps


and EPA have undertaken significant outreach to States, municipalities,


and other stakeholders, holding some 400 meetings around


the country. One of those was in was in Worcester, Massachusetts,


where our office participated and gave views, along with many others,


about these definitions and the importance of the rule.


So the agencies also extended their public comment period twice


and have taken strides to listen to everyone and craft a better,


clearer rule.

Mrs. NAPOLITANO. Thank you.




Mr. Mauck.

Mr. MAUCK. I am sorry. Could you repeat the question.


Mrs. NAPOLITANO. Well, the question to you would be the opponents




of the rule argue that the process was flawed, that the concerns


of the State and local governments were not adequately addressed.


Were you given ample time and opportunity? I know that they


have held—like Mr. Srolovic was indicating, there were over 400


meetings, et cetera. Was there ample opportunity for input?

Mr. MAUCK. Yes. You know, these discussions have been ongoing




for a number of years now. But there was a very lengthy—200 days


for public comment. I believe we have received—there have been


submitted about a million comments. I feel like I have had adequate


time. I have been able over the past year to actually address


this through letters to the editor, as a matter of fact. So absolutely.

Mrs. NAPOLITANO. Thank you, Mr. Chair. I yield back.


Mr. GIBBS. I yield 5 minutes to myself.




Mr. Srolovic, you were talking about that tough name. In your


testimony, you talk a lot about the need for clarification, and I


think there is all agreement on that on CWA.


But, however, I find it interesting. I am looking at the comments


made by New York State from the environmental department and


the agricultural department filed on November 13th, 2014, and


they are very concerned about the definitional concerns in the proposed


rule that prevents New York from providing meaningful comments,


the impact of the proposal, economic impacts, a one-sizefits-


all approach to redefine the regulated waters will only lead to


legal challenges, cause unnecessary harm to farmers, and could


lead to other unintended consequences, and they question the process


was inadequate because they weren’t consulted enough.

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So I guess my question is: Are you aware of those comments? I


think you are. Did you consult with these State agencies, besides


being the representative in the Attorney General’s Office in the


State of New York?

Mr. SROLOVIC. We do represent the State agencies in court and




on other legal issues. I think the fundamental point raised by the


commissioners in that letter was that, while there is a need for a


rule, it is very important for that rule to have as much clarity in


its terms as possible and, at the same time, maintain a flexibility


that reflects regional differences.


In New York, we have a lot of water. We are blessed with a lot


of water. We have a lot of wetlands. Other states, Colorado, a very


different circumstance.

Mr. GIBBS. Yeah. A one-size-fits-all policy I don’t agree with, especially




with water.


But do you agree with these State agencies in your State, that


this proposal would be an expansion of the regulatory authority of


the U.S. EPA under the Clean Water Act?

Mr. SROLOVIC. We do not see it as a significant expansion of the




jurisdiction of the waters of the United States. We think it codifies


the principles that have been applied, that it properly interprets


the guidance that a majority of Justices have provided from the


U.S. Supreme Court, and is an important step forward.

Mr. GIBBS. OK. I guess for the other panelists, costs to the counties,




States. If this rule, as proposed, goes into effect, what is it


going to do to the cost, cost of government—for local governments?

Ms. CLARK. Thank you, Mr. Chairman. I will try and go first and




be brief.


Financially, actually, it is—I mean, it is reaching farther out


based on the ambiguity and the confusion that has been placed on


the rules.


If you look at the Small Business Administration’s Office of Advocacy


and the analysis that they did, there would be a cost not


just to small businesses, but to small counties, 50,000 or less, and


that makes up about two-thirds of the Nation’s population.


In addition to that, if we look back and look at—the delay of


projects is a cost to us locally. The longer we delay, then it puts


safety at risk. It puts water at risk, frankly, and water quality.


And then the other component of that really is to look back and


see when the EPA did their analysis and what data they used. And


it was older data. It wasn’t based on today’s costs in place. So, yes,


there is a significant cost.

Mr. GIBBS. I want to get to one more question here.




So I am a firm believer that the CWA was put into place because


we had major problems—I mean, it is what you saw in the earlier


panel, the Cuyahoga River and all that—and it was structured to


be cooperative federalism between the States and the Feds and


with the Federal Government in oversight and guidance. That is


why the States had to submit the 3-year plan of action.


So maybe Mr. Pruitt or Mr. Putnam might want to comment on


how that partnership has been working or not working or what the


process has been, you know, just of implementing and enforcing the


Clean Water Act.

Mr. PUTNAM. I will be brief.





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In answer to your first question, we know from urban counties


just on stormwater and from an agricultural perspective the number


is easily in the billions, easily in the billions. Twenty percent


increase in jurisdictional wetlands minimum.


We know from the previous study that is now 12 years old that


it costs over $300,000 to get a 404, and we know the wetlands mitigation


is $100,000 per acre to mitigate.


So when you grow the impacted areas and you add the regulatory


cost and you add the mitigation factors, it is easily in the


billions not only for ag, but also for our counties.


And I will let my Attorney General friend speak to the partnership



Mr. PRUITT. You know, Mr. Chairman, I think that that is the




concern that you have identified. I think, historically, the relationship


has been strong. I mean, in Oklahoma, we have water quality


issues. The Illinois River in the eastern part of our State, there


have been ongoing concerns between Arkansas and Oklahoma


about phosphorus load in that body of water.


Both the EPA has been concerned about that, but so has the


State of Oklahoma. We have actually negotiated a memorandum of


understanding with Arkansas, and we have worked on both sides


of the border to take regulatory steps to reduce phosphorus levels


in the Illinois River. And so I think you see examples both at the


State level and at the Federal level of concern about water quality.


But here my comments to the panel and to the committee are focused


more upon this expanded view of the definition that gives the


EPA jurisdiction to interpose itself into those areas that are traditional,


historical, and, I believe, lawful to the States on primacy.


And that is what we are seeing on this expanded definition, Mr.



Mr. GIBBS. Thank you.




Mr. Duncan, you are recognized.

Mr. DUNCAN. Thank you, Mr. Chairman.




The Rapanos Clean Water decision was mentioned when I was


here this morning briefly. Let me read what the Federal district


judge said in that case.


He said, ‘‘I don’t know if it is just a coincidence that I just sentenced


Mr. Gonzales, a person selling dope on the streets of America.


He is here illegally. He is not an American citizen. He has a


prior criminal record.


‘‘So here we have a person that comes to the United States and


commits crimes of selling dope and the Government asked me to


put him in prison for 10 months.


‘‘And then we have an American citizen who buys land, pays for


it with his own money, and he moves some sand from one end to


the other and the Government wants me to give him 63 months in




And this Federal district judge said, ‘‘Now, if that isn’t our system


gone crazy, I don’t know what is. And I am not going to do




Well, he was reversed. But it shows you can take any of these


laws too far. And I can tell you no one is talking about doing away


with the Clean Water Act or going back to where we were in 1970.

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But it is also ridiculous to act like we haven’t made any progress


and that things are worse now than they were in the 1970’s. So we


have to make these rules even tougher.


And I remember, when I chaired this subcommittee, the mayor


of Los Angeles came to me and he said the EPA was coming down


with some new regulations about grease.


And he said, ‘‘We have got over 10,000 restaurants in Los Angeles.’’


He said, ‘‘Most of them are small mom-and-pop restaurants.’’


He said, ‘‘This is going to run several thousand of those small


mom-and-pops out of businesses.’’ And we got that stopped.


But I can tell you that people sit up here in Washington and they


write these rules and regulations. They are mostly people who have


spent their entire careers in government. Many of them have spent


their entire careers here.


They don’t realize the effect that these rules and regulations—


most of them help the big giants in the industry, but they really


hurt the small farmers and the small ranchers and the small businesses.


And, in fact, the SBA said of this rule that we are talking


about—the SBA Office of Advocacy put out this statement and said,


‘‘Small businesses are extremely concerned about the rule as proposed.


The rule will have a direct and potentially costly impact on


small businesses. The limited economic analysis which the Agency


submitted with the rule provides ample evidence of a potentially


significant economic impact.’’


And, you know, I noticed in the biographies—I was here for an


hour this morning and I listened to Administrator McCarthy and


Secretary Darcy. And I noticed in their biographies neither one of


them has ever managed a farm or a ranch or been in a small business.


They just don’t understand the pressures and how difficult these


positions—these jobs are and how tough it is when you have to


fight ordinary competition, but then you have to take on your Government


that has unlimited funds when you have to take them on,


to boot.


And then people wonder why so many small- and medium-sized


businesses go out of business, and all of these college graduates


wonder why we have so many of them working as waiters and


waitresses in restaurants because we sent millions of good jobs to


other countries for the last 40 years or so.


And a lot of it—an awful lot of it is because of the environmental


rules and regulations and red tape. And if we don’t wake up and


realize that, we are going to keep hurting these small businesses,


these small ranches, these small farms.


And I just get sick and tired of these bureaucrats sitting up here


coming up with these rules and regulations that they have no understanding


of who it is going to hurt, how much effect it is going


to have.


I remember, when I chaired this subcommittee, we had a cranberry


farmer from Massachusetts who broke down in tears talking


about the effect that some of these EPA Clean Water rules were


already having on his farm.


And to come in and expand them at this point now is just wrong,


in my opinion. And so I am opposed to it. And I notice that almost

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all the small business groups and almost all of the agriculture and


farm groups are opposed to it, too.


Finally, I will just say I think I am the only one here that has


served with Secretary Putnam. He was a great Member of Congress,


and he has got a great future ahead of him in the State of




I also had the privilege of serving, General, with your, governor,


and she was a fine Member and outstanding Member of this body,


also. And I am real proud of the work she is doing as your governor.


Mr. Chairman, thank you very much.

Mr. GIBBS. Mr. Rokita, 5 minutes.


Mr. ROKITA. Thank you, Chairman.




It is great to be on your subcommittee. I appreciate being here.


As you can tell, I am new to the Transportation and Infrastructure


Committee. That might explain the gap here.

Mr. GIBBS. This is a full committee hearing here.


Mr. ROKITA. Right. Right.




Panel 1, where all of the hubbub was, which, Secretary, that is


where I had the plague. I had the plague earlier this morning, but


I am here now.


I really enjoy being this close because I get to really focus in on


each of your testimonies and appreciate them. As the former Indiana


Secretary of State, I really looked to county government to


help solve our problems, just like I think Washington should be


looking to the States to do the same.


In fact, I was in Colorado, where I learned about vote centers


from one of your counties, and I know several Indiana clerks are


members of NACo. But we took vote centers back to Indiana and


implemented them there. It was good stuff.


In that vein, I am surprised to hear a local official like you, Commissioner


Mauck, look to the Federal Government almost solely to


solve your problems. And that is what I got from your testimony,


whether it was the Clean Water or the wildlife that helps—that the


water helps flourish.


I couldn’t understand when I was listening to your testimony


why you, as a reelected elected official, feel powerless to solve these


problems yourself or to go to your State legislature.


Now, remember, before you answer, unless Senator Gardner was


wrong—and feel free to correct him—all water flows out of Colorado.


Right? So you are in almost a unique or particularly good situation


to take care of the situation.


Why won’t you?

Mr. MAUCK. Well, like I said in my testimony, Clear Creek County




does. We do take an opportunity—we work with the Watershed


Foundation to clean up a lot of our water.

Mr. ROKITA. What is the need to expand this definition?


Mr. MAUCK. The need is the regulatory uncertainty in terms of




what waters are in, what waters are out, the delays in the permitting


as we work through the—

Mr. ROKITA. Yeah. I want to talk about the testimony about the




delays in the permitting.


This expands the jurisdiction of the Agency over water. So, by


definition, you are going to get more permits. So how is getting

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more permits—because there is going to be more water under jurisdiction—


going to speed up the permitting process?


The last thing we want to give these agencies—and I don’t just


mean the EPA. But they all seem pretty inept in terms of turning


work product around. Why would we give them more paperwork?

Mr. MAUCK. It is my understanding that this does not expand




the jurisdiction of the Clean Water Act.

Mr. ROKITA. Oh. It doesn’t expand the jurisdiction.


Mr. MAUCK. Does not, is my understanding.


Mr. ROKITA. Yeah. You state that in your testimony, too.




But, on the other hand, you suggest that the rule would protect


intermittent ephemeral streams and wetlands that are currently


not federally regulated.


Don’t these arguments contradict each other?

Mr. MAUCK. They were once regulated before, and I think there




was more certainty back then with the 2001 and 2006 court rulings.


We have kind of entered this gray area now where we don’t


understand what is and what is not.


Now, I am dealing with a small business community that is outdoor


recreation-centric and the small mom-and-pop delis and ice


cream shops that operate on the backs of the rafting companies,


the outfitter companies, the people that come into camp and recreate


and fish and angle.


Not having certain protections in place and not being clear, to


me, is rolling the dice on that outdoor recreation industry. And, for


me, that is all I have after the Henderson Mine for my community.


But it is a very robust economic engine for not only Colorado, but


also the rest of the United States.

Mr. ROKITA. Why couldn’t a county commission ordinance take




care of this? Why can’t you legislate this yourself?

Mr. MAUCK. I can’t speak to the legalities. I am not an attorney.


Mr. ROKITA. That is not a legality. It is called sovereignty of a




state and, in your situation, sovereignty of a county.


And you have been elected by people to act. And it sounds like


what you are doing is saying exactly what Attorney General Pruitt


was trying to get at where there are people in this country that unfortunately


think they have to be vessels of the Federal Government.


And I am going to let Attorney General Pruitt comment on it and


Secretary Putnam. We have about 30 seconds, if you can divide


that. And I appreciate your testimony. I want to see if you have


anything to add to this exchange we just had.

Mr. PRUITT. Well, I do want to provide a comment with respect




to the case law just momentarily. You know, there has been two


recent decisions, the Solid Waste Agency of Northern Cook County


and, also, the Rapanos decision that has already been highlighted.


And in the SWANCC decision, the court held that the Corps of


Engineers exceeded its authority by attempting to regulate nonnavigable,


isolated, interstate waters.


In the Rapanos decision, they held that the Corps waters must


be navigable waters or at least reasonably made to be so. There is


a reason for that. It is called the Interstate Commerce Clause.


And this body, Congress, has the authority with respect to issues


that involve interstate commerce as it relates to water. If you are

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dealing purely with intrastate water that cannot be regionally connected


to an interstate body of water, the jurisdiction is exclusively


within the States. And that is the tension here.


And so, when you talk about issues of federalism, I agree with


you, Congressman. I believe that the States are taking and, in fact,


have taken—I know Oklahoma has done this. We have a robust


regulatory regime. I have mentioned the Water Resources Board


and the DEQ working together to deal with land use and management


and water quality issues.


There are issues—and I mentioned one, the Illinois River—with


phosphorus load that is affecting us from Arkansas, where the EPA


has jurisdiction, that we should be very leery of an approach that


yields to the Federal Government a takeover of that land use and


water quality issues that are reserved to the States presently.

Mr. GIBBS. OK. Thank you.




Mrs. Napolitano, do you have something to enter for the record?

Mrs. NAPOLITANO. Yes, Mr. Chairman.




There was a statement by Ms. Clark, I believe, that the SBA Advocacy


was concerned about the impact this has on small business.


So I have a release dated October the 2nd from the American


Sustainable Business Council stating that it appears the SBA is arguing


that polluting industries have the right to externalize the


pollution and harm downstream businesses and communities. This


organization apparently has 200,000 businesses, 325,000 entrepreneurs,




I would like to introduce it into the record, please.

Mr. GIBBS. So ordered.




[The information follows:]******** COMMITTEE INSERT



Mr. GIBBS. I would like to thank our witnesses for your testimony




today. Your contribution to today’s discussion was very insightful


and will be very helpful. Hopefully, we are going to address


some legislation and we can get something passed. I do believe


it is the role of Congress to address this.


I ask unanimous consent that the record of today’s hearing remain


open until such time as our witnesses have provided answers


to any questions that may be submitted to them in writing and


unanimous consent that the record remain open for 15 days for additional


comments and information submitted by Members or witnesses


to be included in the record of today’s hearing.


Without objection, so ordered.


Any other Members have anything else? If not, then the meeting


is adjourned.


[Whereupon, at 3:03 p.m., the committees were adjourned.]


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