IMPACTS OF THE PROPOSED ‘‘WATERS OF

 

THE UNITED STATES’’ RULE ON STATE AND

 

LOCAL GOVERNMENTS

 

Wednesday, February 4, 2015

HOUSE OF REPRESENTATIVES,

 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE,

 

 

 

JOINT WITH THE

UNITED STATES SENATE,

 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

 

 

 

 

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

 

me.

 

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

 

today.

 

[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

 

statement.

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

 

ruling.

 

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

 

clarified?

 

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

 

out.

 

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

 

warranted.

 

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

 

truth.

 

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

 

Works.

 

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.

TESTIMONY OF THE HON. GINA MCCARTHY, ADMINISTRATOR,

 

U.S. ENVIRONMENTAL PROTECTION AGENCY; AND THE HON.

 

JO–ELLEN DARCY, ASSISTANT SECRETARY OF THE ARMY

 

FOR CIVIL WORKS

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

 

certainty.

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

 

questions.

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

 

rule.

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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

 

 

 

correct?

Ms. MCCARTHY. That is correct.

 

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

 

 

 

those going to be regulated under your rule?

Ms. MCCARTHY. No.

 

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?

Ms. MCCARTHY. No.

 

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

 

that.

 

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—

 

Mr. GIBBS. OK.

 

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

 

agencies.

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.

 

Mr. DEFAZIO. OK.

 

 

 

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.

 

Ms. MCCARTHY. Yes.

 

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

 

 

 

changes?

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.

 

Mr. DEFAZIO. OK.

 

 

 

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.

Ms. MCCARTHY. Yes.

 

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

 

that.

 

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.

Mr. DEFAZIO. OK.

 

 

 

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

 

jurisdictional?

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

 

 

 

isolated—

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

 

covered.

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

 

ground.

 

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

 

to?

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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

 

Act.

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.

Ms. MCCARTHY. Yes.

 

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?

Ms. MCCARTHY. Mr.—

 

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

 

 

 

after—

Ms. MCCARTHY. Yeah.

 

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

 

Ms. MCCARTHY. OK.

 

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.

Ms. MCCARTHY. OK.

 

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

 

 

 

protection—

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

 

record.

 

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

 

world.

 

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

 

to—

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

 

concerns.

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

 

questioning.

 

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

 

toes.

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

 

here.

 

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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27

 

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.

Ms. MCCARTHY. Yeah.

 

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

 

sources.

 

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

 

that.

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.

Ms. MCCARTHY. Yeah.

 

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

 

you.

 

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

 

rule.

 

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

 

watershed.

 

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-

 

sized.

Ms. MCCARTHY. Yeah.

 

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

 

left.

Ms. MCCARTHY. Oh, thank you.

 

Mr. WEBSTER. Hi.

 

 

 

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

 

there.

 

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

 

clean.

 

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

 

record.

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

 

streams?

 

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

 

 

 

either.

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

 

fashion.

 

As you can imagine, in Alaska, we have a lot of concerns. We

 

love our environment—most pristine environment in the world.

Ms. MCCARTHY. Yes.

 

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

 

rule.

 

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—

 

Ms. MCCARTHY. Yes.

 

Senator SULLIVAN. —when we start out—

 

Ms. MCCARTHY. Yes.

 

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—

Senator SULLIVAN. OK.

 

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.

 

RPTR MCCONNELLEDTR WILTSIE[12:03 p.m.]

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

 

 

 

well.

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

 

 

 

that?

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

 

rule.

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

 

communities.

 

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.

 

Ms. MCCARTHY. Yes.

 

Mr. MEADOWS. And my good friend from Kentucky mentioned the

 

 

 

cost.

Ms. MCCARTHY. Yes.

 

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?

 

Ms. MCCARTHY. No.

 

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.

Ms. MCCARTHY. OK.

 

Mr. MEADOWS. Ms. Darcy and you and Mr. P, as I would call him

 

 

 

before he retired—

Ms. MCCARTHY. Bob Perciasepe.

 

Mr. MEADOWS. Yes.

 

 

 

—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

 

problem?

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

 

record.

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

 

that.

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

 

on.

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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

 

tributaries.’’

 

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. MCCARTHY. Sure.

 

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

 

question.

 

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

 

proposal.

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

 

correct?

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

 

excluded.

 

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.

Ms. MCCARTHY. Yes.

 

Mr. GIBBS. You told us about you are resolving all these issues

 

 

 

before the final rule and you are working with the States and

 

stakeholders.

 

But what specifically is the process for resolving these outstanding

 

issues?

Ms. MCCARTHY. To continue to look at the comments received, to

 

 

 

continue to have discussions as appropriate and docketed with the

 

stakeholders.

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

 

 

 

States—

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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.

 

Ms. MCCARTHY. Sure.

 

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?

 

Ma’am?

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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

 

 

 

Register.

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

 

votes.

 

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

 

ourselves.

 

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.

 

Ms. MCCARTHY. OK.

 

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—

 

Ms. MCCARTHY. It—

 

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

 

 

 

in—

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66

Mr. DAVIS. I am not complaining about the process.

 

Ms. MCCARTHY. OK.

 

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—

Ms. MCCARTHY. OK.

 

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

 

regulated.

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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

 

record.

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—

Ms. MCCARTHY. Yes.

 

Mr. BARLETTA. —its flood maps—

 

Ms. MCCARTHY. Yes.

 

Mr. BARLETTA. —and determine the 100-year flood plain?

 

Ms. MCCARTHY. Yes.

 

Mr. BARLETTA. Are there maps of your flood plains?

 

Ms. MCCARTHY. That they produce.

 

Mr. BARLETTA. That who produces?

 

Ms. DARCY. FEMA.

 

Ms. MCCARTHY. FEMA produces.

 

Mr. BARLETTA. And that would be the same definition that you

 

 

 

use?

Ms. MCCARTHY. Yes.

 

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

 

now.

Ms. MCCARTHY. OK.

 

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

 

 

 

you.

 

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

 

adjustments.

Mr. BARLETTA. Yeah. You would agree that this would cause a

 

 

 

safety issue, and, obviously, those delays would not be in the best

 

interest—

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

 

it.

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.

 

[Recess.]

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.

 

Mr. GIBBS. OK.

 

 

 

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.

TESTIMONY OF THE HON. E. SCOTT PRUITT, ATTORNEY GENERAL,

 

STATE OF OKLAHOMA; THE HON. ADAM H. PUTNAM,

 

FLORIDA COMMISSIONER OF AGRICULTURE, FLORIDA DEPARTMENT

 

OF AGRICULTURE AND CONSUMER SERVICES,

 

ON BEHALF OF THE NATIONAL ASSOCIATION OF STATE DEPARTMENTS

 

OF AGRICULTURE; THE HON. SALLIE CLARK,

 

COMMISSIONER, DISTRICT 3, EL PASO COUNTY, COLORADO,

 

ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES;

 

THE HON. TIMOTHY MAUCK, COMMISSIONER, DISTRICT 1,

 

CLEAR CREEK COUNTY, COLORADO; AND LEMUEL M.

 

SROLOVIC, BUREAU CHIEF, ENVIRONMENTAL PROTECTION

 

BUREAU, OFFICE OF NEW YORK STATE ATTORNEY GENERAL

 

ERIC T. SCHNEIDERMAN

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

 

clarification.

 

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

 

rights.

 

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

 

jurisdiction.

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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

 

jurisdiction.

 

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

 

Clark.

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

 

sectors.

 

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.

 

Welcome.

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

 

lightly.

 

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

 

violations.

 

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

 

development.

 

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

 

Act.

 

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

 

control.

 

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

 

decisions.

 

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

 

issues.

 

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’

 

authority.

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

 

identified.

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

 

MCCONNELLEDTR WILTSIE[2:40μp.m.]

 

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

 

hill.

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

 

issue.

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.

 

Chairman.

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

 

prison.’’

 

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

 

it.’’

 

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

 

Florida.

 

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,

 

executives.

 

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.]