[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                          THE CLEAN WATER ACT
                      AFTER 37 YEARS: RECOMMITTING
                           TO THE PROTECTION
                         OF THE NATION'S WATERS

=======================================================================

                                (111-70)

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            October 15, 2009

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure


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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
Vice Chair                           DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
Columbia                             VERNON J. EHLERS, Michigan
JERROLD NADLER, New York             FRANK A. LoBIONDO, New Jersey
CORRINE BROWN, Florida               JERRY MORAN, Kansas
BOB FILNER, California               GARY G. MILLER, California
EDDIE BERNICE JOHNSON, Texas         HENRY E. BROWN, Jr., South 
GENE TAYLOR, Mississippi             Carolina
ELIJAH E. CUMMINGS, Maryland         TIMOTHY V. JOHNSON, Illinois
LEONARD L. BOSWELL, Iowa             TODD RUSSELL PLATTS, Pennsylvania
TIM HOLDEN, Pennsylvania             SAM GRAVES, Missouri
BRIAN BAIRD, Washington              BILL SHUSTER, Pennsylvania
RICK LARSEN, Washington              JOHN BOOZMAN, Arkansas
MICHAEL E. CAPUANO, Massachusetts    SHELLEY MOORE CAPITO, West 
TIMOTHY H. BISHOP, New York          Virginia
MICHAEL H. MICHAUD, Maine            JIM GERLACH, Pennsylvania
RUSS CARNAHAN, Missouri              MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii              LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania          JEAN SCHMIDT, Ohio
TIMOTHY J. WALZ, Minnesota           CANDICE S. MILLER, Michigan
HEATH SHULER, North Carolina         MARY FALLIN, Oklahoma
MICHAEL A. ARCURI, New York          VERN BUCHANAN, Florida
HARRY E. MITCHELL, Arizona           ROBERT E. LATTA, Ohio
CHRISTOPHER P. CARNEY, Pennsylvania  BRETT GUTHRIE, Kentucky
JOHN J. HALL, New York               ANH ``JOSEPH'' CAO, Louisiana
STEVE KAGEN, Wisconsin               AARON SCHOCK, Illinois
STEVE COHEN, Tennessee               PETE OLSON, Texas
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland
SOLOMON P. ORTIZ, Texas
PHIL HARE, Illinois
JOHN A. BOCCIERI, Ohio
MARK H. SCHAUER, Michigan
BETSY MARKEY, Colorado
PARKER GRIFFITH, Alabama
MICHAEL E. McMAHON, New York
THOMAS S. P. PERRIELLO, Virginia
DINA TITUS, Nevada
HARRY TEAGUE, New Mexico
VACANCY

                                  (ii)

  
                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................     v

                               TESTIMONY

Brown, R. Steven, Executive Director, Environmental Council of 
  the States.....................................................    53
Butterfield, Ph.D., R.N., Dr. Patricia, Dean, Professor, 
  Washington State University, testifying on behalf of the 
  American Nurses Association....................................    45
Jackson, Honorable Lisa P., Administrator, United States 
  Environmental Protection Agency................................    23
Kavanaugh, Dennis, Representative, Sandy Hook Waterman's Alliance    45
Mittal, Anu K., Director, National Resources and Environment 
  Team, Government Accountability Office.........................    53
Najjum, Wade T., Assistant Inspector General, Office of the 
  Inspector General, United States Environmental Protection 
  Agency.........................................................    53
Porta, Tom, Deputy Administrator, Nevada Division of 
  Environmental Protection, testifying on behalf of Association 
  of State and Interstate Water Pollution Control Administrators.    53
Rumpler, John, Senior Attorney, Environment America..............    53
Schaeffer, Eric, Executive Director, Environmental Integrity 
  Project........................................................    53
Shimshack, Dr. Jay P., Assistant Professor of Economics, Tulane 
  University, and Visiting Scholar, Erb Institute, University of 
  Michigan.......................................................    53
Treml, Judy, Luxemburg, Wisconsin................................    45

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Bishop, Hon. Tim, of New York....................................    73
Carnahan, Hon. Russ, of Missouri.................................    74
Graves, Hon. Sam, of Missouri....................................    75
Johnson, Hon. Eddie Bernice, of Texas............................    77
Latta, Hon. Robert E., of Ohio...................................    82
McMahon, Hon. Michael E., of New York............................    85
Mitchell, Hon. Harry E., of Arizona..............................    87
Richardson, Hon. Laura, of California............................    89

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Brown, R. Steven.................................................    93
Butterfield, Ph.D., R.N., Dr. Patricia...........................    99
Jackson, Honorable Lisa P........................................   106
Kavanaugh, Dennis................................................   135
Mittal, Anu K....................................................   138
Najjum, Wade T...................................................   156
Porta, Tom.......................................................   176
Rumpler, John....................................................   187
Schaeffer, Eric..................................................   190
Shimshack, Dr. Jay P.............................................   198
Treml, Judy......................................................   207

                       SUBMISSION FOR THE RECORD

Boozman, Hon. John, a Representative in Congress from the State 
  of Arkansas, written testimony from the American Road and 
  Transportation Builders Association, Nick Goldstein, Assistant 
  General Counsel and Director of Regulatory Affairs.............     7
Jackson, Honorable Lisa P., Administrator, United States 
  Environmental Protection Agency, responses to questions from 
  Rep. McMahon, a Representative in Congress from the State of 
  New York.......................................................   113
Moran, Hon. Jerry, a Representative in Congress from the State of 
  Kansas, written testimony, Kansas Farm Bureau, Steve Baccus, 
  President......................................................    29

                        ADDITIONS TO THE RECORD

Davis, Hon. Artur, a Representative in Congress from the State of 
  Alabama, letter to the Environmental Protection Agency.........   216
National Association of Realtors, Charles McMillan, CIPS, GRI, 
  2009 President, written testimony..............................   218
Stewards of the Sequoia, Chris Hogan, Executive Director, written 
  testimony......................................................   221

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  HEARING ON THE CLEAN WATER ACT AFTER 37 YEARS: RECOMMITTING TO THE 
                   PROTECTION OF THE NATION'S WATERS

                              ----------                              


                       Thursday, October 15, 2009

                   House of Representatives
     Committee on Transportation and Infrastructure
                                            Washington, DC.
    The Committee met, pursuant to call, at 10:00 a.m., in Room 
2167, Rayburn House Office Building, the Honorable James 
Oberstar [Chairman of the Full Committee] presiding.
    Mr. Oberstar. The Committee on Transportation and 
Infrastructure will come to order on this dreary, rainy day of 
a long commute into Washington.
    This hearing marks the 37th anniversary of passage of the 
Clean Water Act. Two years ago we did the 35th anniversary. But 
I set this hearing as an opportunity to reflect on the progress 
made in pollution cleanup; an opportunity to evaluate somewhat 
the successes of the Act but, more importantly, the 
shortcomings.
    This hearing also comes just two days short of the 
anniversary of President Nixon's veto of the Clean Water Act, 
particularly nostalgic to me since I spent 10 months of 1972, a 
good share of it in this room, as administrator of the 
Committee on Public Works, as it was known then, under the 
leadership of the gentleman whose portrait is in the corner, 
John Blatnik, who is my predecessor and Chairman of the 
Committee at the time. We spent 10 months negotiating with the 
Senate and the White House on the provisions of the Clean Water 
Act, which we expected would meet with hostility at the White 
House, and we were not disappointed.
    But I think it is remindful to look at again, to revisit 
President Nixon's veto message. October 17, 1972, he says, ``I 
am concerned that we attack pollution in a way that does not 
ignore other real threats to the quality of life.'' What? What 
is more fundamental to life than water? ``Legislation which 
would continue our efforts to raise water quality, but which 
would do so through extreme and needless overspending does not 
serve the public interest. There is a much better way to get 
this job done,'' said Mr. Nixon, ``a bill whose laudable intent 
is outweighed by its unconscionable $24 billion price tag.'' 
Twenty-four billion? That is kind of a footnote in today's 
budget.
    ``The bill that has now come to my desk would provide a 
staggering budget wrecking $24 billion.'' Of course, he didn't 
say it this way and I apologize for that, but that is the way I 
read it. ``Another provision would raise the Federal share of 
the cost of future facilities from 55 percent to 75 percent, 
actions which would not in any real sense make our waters any 
cleaner. I have nailed my colors to the mast on this issue. The 
political winds can blow where they may; I am prepared for the 
possibility that my action on this bill will be overridden''; 
and it was, 10 to 1. Ten to one, overwhelming bipartisan 
consensus.
    Two years ago, in our review of the Clean Water Act, I 
cheered the steps that had been made, or cited--probably a 
better way to express it--the steps made in improving the 
Nation's water quality. But that was not really a celebration. 
Two-thirds of the Nation's waters meet water quality goals as 
established by the Act, but a third of the Nation's waters 
remain impaired; and the assessment for today's hearing for me 
is just plain alarming. Some successes have been clear, but 
most of the big success came at a time when the Nation's waters 
were bubbling over with phenols and untreated sewage, and 
impairment was readily apparent to the naked eye.
    The challenges today are very different from those of the 
past. No longer is there an imminent fear that the Cuyahoga 
River will again catch on fire. No longer do we see the tidal 
basin just down the road from us bubbling over and foaming with 
raw sewage and toxic wastes, the best-dressed cesspool in 
America, as my predecessor, John Blatnik, called it. All that 
sewage ringed with the flowering Cherry Blossoms made him think 
of that image.
    The issues facing the Clean Water Act and the Nation's 
waters today are ever more complex and difficult to address; 
nonetheless malevolent, perhaps even more fearsome and more 
dangerous than the early threats of pollution. But there are 
still three fundamental elements of this Act. First, sound 
science and technology should guide our national discharge 
standards. Second, we need adequate funding, despite what 
Richard Nixon said way back when and the budgets he submitted 
that were repeatedly overturned and increased. Despite the 
Reagan budget in 1981 that converted the entire sewage 
treatment grant program into a loan program and cut it from $6 
billion a year to $2 billion, at a time when the smallest 
cities of America had to bear the sizeable burdens of cost of 
borrowing the money, repaying it with interest to State 
revolving loan funds. And, third, a strong enforcement program 
still is critical to consistent and effective implementation.
    The Federal Government and the States have to work in 
partnership. The Clean Water Act was intended as a partnership 
program. But we are losing ground. We are losing ground in that 
partnership; we are losing ground in oversight of publicly 
owned treatment works and private sector treatment activities. 
Over the past decade, I have repeatedly expressed my concerns.
    This Committee, under both Republican and Democratic 
leadership between 2001 and 2009, has issued numerous reports 
criticizing the prior administration for cutting Federal and 
State funding and personnel to implement the Act; repeatedly 
cited EPA for failing to provide a credible Clean Water Act 
enforcement program. Time and again the Committee documented 
cases where reduced funding for the Clean Water Act programs 
directly affected water quality programs of the States.
    Congressman Waxman and I, he the Chair of the Government 
Oversight Committee, detailed the drastic deterioration to be 
EPA's enforcement program during the previous administration.
    Simply put, enforcement has set back--or deterioration, I 
should say, of the enforcement program has set back progress in 
achieving the central goals of the Clean Water Act. The New 
York Times, just last month, ran a front page story detailing 
the systemic failure by Federal and State governments to 
enforce the Clean Water Act. The Times found that ``fewer than 
three percent of Clean Water Act violations resulted in fines 
or other significant punishment by State officials'' and that 
``unchecked pollution remains a problem in many States.''
    In the course of the interview I did for that story, I said 
EPA and the States have dropped the ball. It is time to pick up 
that ball and start moving it again.
    I am keen to hear from Administrator Jackson, who comes 
with resolve, the commitment, and with a directive from the 
President to make this clean water program an effective one. 
She sent a memorandum to EPA staff saying ``data available to 
EPA shows that, in many parts of the Country, the level of 
significant noncompliance with permitting is unacceptably high 
and the level of enforcement activity is unacceptably low.'' I 
agree. We are going to explore those issues in the course of 
today's hearing.
    If dischargers are allowed to violate permits, if 
enforcement remains only a threat, then the program is failing, 
and I look to Administrator Jackson to begin taking the 
management steps necessary to protect the water, the public 
health, and the environment; and she has already demonstrated 
her strength of character and determination to do so and is off 
to a very strong start. I welcome Administrator Jackson to this 
hearing.
    I now turn to Mr. Boozman, who is--or, Mr. Mica, do you 
wish to go at this point?
    Mr. Mica. Thank you, I will, and I won't take too much 
time. I had the great pleasure of being on the Committee for 17 
years and only as a Ranking Member for the full Committee the 
past three years; gotten more into some of these water 
resources issues.
    Let me say, for our side of the aisle, I don't know anybody 
that I have talked to in Congress and our Republican conference 
that is not a strong advocate of making certain that we have 
clean water, that we go after people who carelessly flaunt 
laws, regulations, that pollute. We should do everything we can 
in a bipartisan effort to make certain that the beautiful land 
and water that we have been given in this Country is preserved 
and not polluted. So I don't know anyone on our side of the 
aisle that isn't in favor of that.
    I think our emphasis is that we take our hard-earned 
taxpayers' money and we do the best job we can, cost-
effectively cleaning up, enforcing. Learned a little bit about 
the enforcement regiment, and one of the things I did learn is, 
of course, the Federal Government can't be everywhere enforcing 
every source point problem that we have across the Country. We 
do rely on States, and I am told 46 States are responsible for 
enforcement, and we want them to do a good job.
    One of the things that concerns me right now is they are 
strapped just like we are strapped, but even more so because 
they actually have to balance their budgets in almost every 
instance; we just print more money. But they are strapped, and 
if they are charged with enforcement, sometimes they do tend to 
cut back, and that could have an impact, an adverse impact 
going after people who are violating the laws, regulation, or 
polluting. So I think we have to figure out what to do in the 
meantime in assisting them, but in a meaningful manner and 
cost-effective manner to make certain that what we intend is to 
hold people's feet to the fire and hold them responsible if 
they are polluting.
    Another thing I have learned is some of the data that we 
collect, we need some way to get better information. I have 
seen some reports that just don't make sense. Some so-called 
violations end up being paperwork. I am not so concerned about 
people messing up paperwork as I am messing up our waters and 
polluting them and going after those violations.
    The other thing I will close with is I sat in a couple of 
the Chesapeake Bay hearings and that is an incredible national 
treasure, but I was interested to learn how you have different 
States that contribute to the pollution and different point 
sources, and controlling that. Some folks may do a good job; 
maybe Virginia does a good job, Maryland may do a good job, we 
will take it up to Pennsylvania and maybe not as good a job 
there, or some jurisdictions within those State lines. So how 
we effectively, in multi-jurisdictional situations, deal with 
violators or polluters and making certain that our efforts all 
come together and are successful in what we hope to achieve, 
which is clean water and dealing with source pollution point 
solution.
    So we are very open to suggestions working with our 
colleagues on the other side of the aisle, and, again, I think 
everyone has the same intent, but we want to get there as 
effectively and as cost-efficiently as we can for the taxpayer.
    Thank you, Mr. Chairman. I yield back.
    Mr. Oberstar. Thank you for those very pertinent and 
thoughtful reflections. I appreciate your comments.
    Now the Vice Chair of the Committee, Mr. Rahall. Welcome.
    Mr. Rahall. Thank you, Mr. Chair.
    Mr. Oberstar. You have sat here on the Committee with me 
through many, many years of hearings on this legislation.
    Mr. Rahall. I was just prepared to do that same recalling 
of our past histories on this legislation.
    I do appreciate your having these oversight hearings today, 
Mr. Chairman, and appreciate Administrator Lisa Jackson and her 
staff for taking the time to be with us.
    The Clean Water Act, as we all know, for the most part has 
served this Nation and its citizens well, but as we hold this 
hearing on the CWA after 37 years, it is apparent that this law 
is still a study in perpetual motion. As you have so well 
recalled, Mr. Chairman, I was a Member of this Committee, as, 
of course, you were when we passed major amendments to the 
Federal Water Pollution Control Act of 1972 in the form of the 
CWA Act of 1977, and, as well, the last time that significant 
amendments were made by the Water Quality Act of 1987.
    In 1977, myself, as a freshman Member of this body, in 
addition to passing amendments to the CWA that year, the 
Congress also enacted the landmark Surface Mining Control and 
Reclamation Act of 1977, otherwise known as SMCRA. That is the 
Federal law which regulates surface coal mining and reclamation 
in the U.S., short of water quality considerations, and that is 
where, of course, the Clean Water Act picks up.
    Ever since 1977 there has been an attempt to dovetail these 
two laws. At times they have worked relatively well together, 
but there have also been conflicts between them, as we are 
seeing today in the Appalachian coal fields.
    The Surface Mining Act explicitly provides for the practice 
known as mountain removal mining, MTR, under a prescribed set 
of circumstances. Meanwhile, under the Clean Water Act, 
companies engaging in this activity are required to obtain 
their Section 401 certification, NPDES permit, and Section 404 
permits. The situation we face today in the Appalachian coal 
fields is that the EPA has invoked its authority to, for lack 
of a better term, second-guess the U.S. Army Corps of 
Engineers' issuance of these Section 404 permits.
    At stake are not just 79 mining permits now subject to what 
is being called an enhanced review process, but also, and more 
fundamentally, the future of surface mining. In fact, many of 
my constituents believe that the future of coal, all coal, is 
at stake in this discussion. There is a great deal of 
frustration and concern in the Appalachian coal fields as a 
result of the current review, and I cannot under-emphasize that 
fact.
    I have to say that I share that concern. For many years, 
our coal miners, our coal operators, mining community 
residents, State agencies, and those best representing coal 
regions have sought clarity and certainty about the permitting 
process. We want to know what the rules are so that miners can 
stay on the job and continue to fuel America. We all want to do 
what is right by the environment. Of course we do. But we must 
also protect coal field jobs and the economy.
    So I do, as I conclude, thank the Administrator for being 
with us today and, most importantly, for maintaining an open 
line of communication, as she has, with me on this matter. We 
have had several meetings already; we will have more in the 
future. I also want to say thank you to the Assistant Secretary 
of the Army for Civil Works, Jo-Ellen Darcy, and the U.S. Army 
Corps of Engineers for also meeting with me on these issues. 
And thank you, Administrator Jackson, for being with us today.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Thank you, Mr. Rahall.
    Mr. Boozman?
    Mr. Boozman. Thank you, Mr. Chairman. We do appreciate your 
holding this very important hearing today, and we appreciate 
having you, Ms. Jackson, before us, and we appreciate your hard 
work.
    We celebrate the 37th anniversary of the Clean Water Act 
and review its compliance and enforcement programs today. When 
the Clean Water Act was enacted in 1972, it was during an era 
when raw sewage was being dumped into the Nation's rivers and 
streams. While the Clean Water Act has put a stop to this 
practice, today's pollutants are subtle and much more difficult 
to detect. Recently, The New York Times, based on EPA and State 
data, revealed that there were allegedly more than half a 
million Clean Water Act violations in the last five years.
    Unfortunately, the data is filled with unexplained 
anomalies. For instance, the World War II Memorial in 
Washington, D.C., less than three miles from here, is cited as 
having six separate Clean Water Act violations. The Blue Plains 
Waste Water Treatment Facility in Washington, D.C., is having 
as cited 62 separate violations. In another case, no violations 
were reported, but fines were collected by the agency.
    As the Chairman stated, there was overwhelming support of 
the Clean Water Act, and the challenge of today is to focus on 
bipartisan solutions as we go forward.
    I think one of the solutions is helping the agency to 
collect data in a uniform manner that will allow us to 
determine the effectiveness of compliance and enforcement. The 
database utilized by the EPA is full of anomalies which calls 
into question the value of the data being collected. For 
purposes of collected data, compliance, and enforcement, the 
agency divides national pollution discharge elimination system 
permits into two categories, those that involve major discharge 
flows of one million gallons or more and those with less 
volumes or flow. There are 6700 individual permits in the major 
category and 39,000 in the non-major category involving less 
effluent discharge.
    But the agency collects these data differently from major 
and non-major discharge permit holders, and there are 
differences in how States report information to the agency. It 
is not always clear whether a violation is a paperwork 
violation or something far more serious.
    EPA itself acknowledges that there are problems with the 
database. Until we solve the issues surrounding the database 
utilized by the agency, we will be unable to determine the 
effectiveness of the compliance enforcement programs. Congress 
and the Administration should continue to focus on water 
quality violations, not paperwork errors. The EPA and the 
States should work quickly to resolve water quality violations 
through compliance assistance. Only when compliance assistance 
does not resolve the violation, the agency and the States 
should then move towards more formal enforcement actions.
    Mr. Chairman, we stand ready to work with you and the 
Administration to ensure that the compliance and enforcement 
regime authorized by the Clean Water Act is robust and 
responsive to the rapidly changing needs of the Nation. I think 
it is clear that the agency's databases need to be improved, 
and I hope the witnesses today will help us in that effort.
    Thank you, Mr. Chairman.
    Mr. Oberstar. I thank the gentleman for those observations.
    Mr. Boozman. Mr. Chairman, with your permission, I have 
some testimony that I would like to be entered into the record, 
if that is okay.
    Mr. Oberstar. The statement from ARTBA and others we have 
also received, and we will include that in the Committee 
hearing record, with a notation, however, that the thrust of 
the testimony is directed toward the Clean Water Restoration 
Act, which is not the subject of today's hearing.
    [The information follows:]

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    Mr. Oberstar. The gentleman made an interesting observation 
and it does seem somewhat incongruous that a monument on the 
National Mall should be cited. But I recall very clearly in the 
construction the contractor did not take appropriate steps to 
control sediment from the construction site that was running 
down 14th Street, and that point is the lowest point in 
Washington, D.C., and discharges actually reached the Potomac 
directly along 14th Street, so the contractor was indeed cited. 
And the monument, with the pool that has chlorine in it, also 
runs into the gutters on 14th Street and goes directly into the 
Potomac. That has to be stopped. And it does seem incongruous 
that a monument should be a pollution source, but it is.
    Do others wish to be heard? Ms. Johnson, Chair of our Water 
Resource Subcommittee.
    Ms. Johnson. Thank you very much, Mr. Chairman, for holding 
this hearing. This is an important anniversary, and one thing 
we do know, that our water is cleaner and safer than it was 37 
years ago, and I look forward to hearing the witnesses, and I 
ask unanimous consent to put my statement in the record.
    Mr. Oberstar. Without objection, so ordered.
    Mr. Ehlers?
    Mr. Ehlers. Thank you, Mr. Chairman. It is a pleasure to be 
here and note this important event, and I certainly want to 
thank Administrator Jackson for being here. You hold one of the 
most important jobs in the Federal Government and we certainly 
appreciate it and realize it here.
    I also would note that, coming from a solid Dutch 
background, I will not offer this statement with as much 
emotion as you offered yours, Mr. Chairman, but I totally agree 
with your comments and what you said, and I appreciate the 
fervor that you show on this particular subject. You can tell 
we are both from the Great Lakes area.
    But as an environmentalist, a scientist, and a 
representative from the Great Lakes State of Michigan, I know 
that water is our most important natural resource. However, 
water is virtually useless unless it is appropriately clean. 
Regrettably, for hundreds of years, we as a Nation neglected 
our God-given responsibility to preserve and protect our clean 
water resources. We degraded our water so badly that some river 
surfaces actually caught on fire and fish died in mass 
quantities. However, we were able to reverse this degradation 
by passing the Clean Water Act in 1972.
    Since that time, we have made significant progress in 
bringing our waters back to a healthy state. That being said, 
we still have a long way to go, especially in the Great Lakes; 
and I am pleased that the Legacy Act has enabled us to make 
considerable progress there. But, in fact, I am afraid that we 
may once again be on a downward path of neglect due to 
regulatory uncertainty caused by two differing U.S. Supreme 
Court cases. Hopefully, we will l earn from our past mistakes 
and clarify these uncertainties so that we can ensure clean 
waters are passed along to our children and their children.
    We must act as a Congress to clarify the scope of the Clean 
Water Act. And, in the interest of time, I will not go into all 
the details, but Chairman Oberstar has been a leader on this 
and I have been pleased to support his efforts in the past, and 
I hope we will be able to continue to make progress on that 
issue.
    Although may people fixate on the interpretation of legal 
terms such as navigable waters and waters of the United States, 
it is important that we not lose sight of the basic intent of 
the Clean Water Restoration Act, which is to protect our waters 
from pollution. We must never forget that and we must earnestly 
and sincerely pursue that.
    Mr. Chairman, I look forward to working with you and the 
rest of the Committee to ensure the continuing success of the 
Clean Water Act, and thank you for all your good work on it. We 
have a lot of work to do yet.
    Mr. Oberstar. We most certainly do. I am grateful for your 
scientific input and assessment, and your thoughtful approach 
to these issues. Thank you for your participation.
    Do other Members wish to be heard? Mrs. Capito?
    Mrs. Capito. Thank you, Mr. Chairman. Thank you for holding 
this very important hearing on a very important issue. It is 
clear that protecting our Nation's water is important to all of 
us, and we depend on Federal and State agencies to monitor 
water conditions.
    As Members of Congress, we have a responsibility to 
exercise legitimate oversight of these agencies. With that in 
mind, I would like to thank all of today's witnesses and, 
Administrator Jackson, I appreciate your being here.
    As you are well aware, your agency is engaged in an 
elevated review process for coal mining permits in the 
Appalachian Corps district. Generally speaking, the process of 
obtaining Federal coal mine permits is complicated and can 
involve years of coordinated effort before the companies, 
interest groups, and State and Federal agencies. Now the EPA 
has added another layer of review, in essence, a do-over, 
further delaying permitting decisions at the cost of West 
Virginia jobs. We are very frustrated.
    This new process is second-guessing decisions made by 
qualified experts in Federal and State agencies, including 
permits on which the EPA has already commented. EPA is 
essentially holding back critical permits until National 
Headquarters reviews and approves them. The way I and many of 
my States see this, this is a veiled attempt to block not just 
surface mining, but all mining of coal.
    Over the course of the summer, I met with officials from 
your agency and highlighted the stakes associated with 
continued delays in the permit review process. In my 
discussions with officials at EPA, I have regularly stressed 
that their decisions stand to have real implications on West 
Virginians. I was, however, repeatedly assured of an expedient 
review process. Administrator Jackson, it has now been 18 weeks 
since that meeting, added to the years these permits have been 
active, and there has been very little or no movement.
    Administrator, West Virginians are becoming very frustrated 
and there are a lot of unanswered questions. We are concerned 
about our jobs, our families, and our communities. We are 
hearing what you say, but we are watching much more closely 
what you do, and we are extremely concerned. Miners across 
Appalachia want to play by the rules. We want clean water. They 
want to know and work with your agency to resolve these permits 
in a way that protect both jobs and the environment. But as it 
stands right now, we don't know what rules you want us to play 
by, and your agency's indecision is jeopardizing many jobs in 
my State. I look forward to your testimony clearing up this 
uncertainty.
    Thank you, Mr. Chairman.
    Mr. Oberstar. Thank you, Mrs. Capito.
    Mrs. Napolitano?
    Mrs. Napolitano. Thank you, Mr. Chair. I add my thanks for 
holding this very important hearing.
    In my Subcommittee of Water and Power, we are very 
concerned. And thank you, Ms. Jackson, the work that EPA has 
done in my area in California has been exemplary.
    I caution some of the Members and I can tell you that for 
years we have been looking at contaminated aquifers as a result 
of discharges from either farming or some of the aerospace 
industry that has contaminated our waterways. And while we may 
think that these may be a little bit harsh, I would protect the 
water that my grandchildren and my great-grandson are going to 
be utilizing, and that we must be vigilant to ensure that any 
waters that are affected are cleaned for the use of those 
following us.
    It is very important. We find that we don't have any new 
water sources. Mother Earth hasn't given us any more, so we 
need to be able to ensure that what we have we recycle, we 
retreat, whatever needs to be done to it, and that the 
responsible parties own up to it or take steps not to pollute 
those waters.
    So it is a very key issue for me and for some of those that 
I know feel the same way. So thank you, Mr. Chair.
    Mr. Oberstar. Thank you.
    Gentleman from Ohio, Mr. Latta.
    Mr. Latta. Well, thank you very much, Mr. Chairman. I 
appreciate the opportunity of being here today on this hearing.
    Administrator Jackson, thank you so much for being with us.
    If I may, Mr. Chairman, I would like to summarize my 
written remarks for the record today.
    I want to echo Mr. Mica's remarks that we are all in favor 
of clean water. One of the things, though, that he mentioned, I 
think just to paraphrase it, is that we need to be very, very 
practical with what we are doing.
    In a later life or earlier life, I should say, I served as 
a Wood County Commissioner for six years, and as a 
commissioner, besides all of the things from the budget to you 
name it, water and sewer was one of our areas that we were 
assigned in the State of Ohio. Wood County is approximately 619 
square miles; we have all or part of five cities, 21 villages; 
many, many unincorporated areas in the county. I have the 
Maumee River as my northern boundary, which flows into Lake 
Erie, so we are all very cognizant of that. Also, before the 
settlers came, it was also known as the Great Black Swamp. So 
we have a very unique ecosystem in my area.
    But one of the things, to be honest, when I was a county 
commissioner, your day was going to start off bad when the mail 
came and we got a letter from the EPA that started off Dear 
Commissioners. What that usually meant was one of our 
communities in our counties was being placed under orders. And 
when you are out in your communities all the time, you really 
get to know it and you get to know what they can afford to do.
    Now, as a Member of Congress, I have all or part of 16 
counties in northwest and north central Ohio, and, as I said, I 
am out in my district all the time. There is great 
consternation out there when these orders are received. Just to 
give you a couple points, in some cases it would actually be 
cheaper for us to actually buy the community than do the 
projects that these localities are being put under, and that is 
not a joke. Not too long ago, I was at one of my smaller 
villages, and when you have folks that are in these villages 
that are now senior citizens, they have very limited incomes, 
or folks that can't move away because of their economic status 
and this is their home. But the Toledo Metropolitan Council of 
Governments has done a study for us not too long ago, and if 
you live in a large metropolitan area, some of these projects 
would cost around $2,000 per household. But in some of these 
areas, where they only have 300 and some people left in the 
entire village, it would be over $22,000. Literally, that is 
what I mean, it would be cheaper for us to buy them out.
    In other cases, cities that have intakes out into the 
different rivers in my area have situations where they are 
expected to put the water back into the river cleaner than they 
pulled it out. And my question always is how clean is it and 
how far down the river is it before it is commingled to be at 
the exact same level it was before the city had it come out of 
the intake.
    So one of the problems we run into, then, we have a lot of 
companies in my area and I have the largest manufacturing 
district in Ohio, the 15th largest in Congress, and we are hard 
hit with unemployment and trying to get people back to work. So 
we have companies out there now that are actually saying, you 
know, if these projects have to go through, we are just going 
to move out because their parent companies say we can't have 
you there, we can't afford to compete with somebody else with 
those high costs.
    So one of the things I would like to stress is I think that 
when these orders are being placed and when the rules are being 
made, I think they have to be cognizant of the fact of what is 
going on out there. And as was already mentioned by our Ranking 
Member and also by Mr. Boozman, we are pretty hard hit out 
there, and we have to really look at what we are doing.
    So I appreciate your being here and hear from your 
testimony today, and, Mr. Chairman, I appreciate the 
opportunity. Thank you.
    Mr. Oberstar. I thank the gentleman for those comments. I 
am particularly touched by his reference to the cost of cleanup 
shouldered by local government. We had intended in the Clean 
Water, while not in legislation, but as a matter of policy, 
that the early going would be some 70 percent of the funds 
would be directed toward the biggest waste streams in the 
Nation, and by the early 1980s that would be reversed, that 60 
percent of the funding would go to smaller communities, those 
under 50,000 population. That was at the point at which the 
Reagan Administration converted from a grant to a loan program 
and reduced the total size of the program.
    In the stimulus this year we had $4.6 billion for 
wastewater treatment and an additional $100 million for 
drinking water systems. That was to go out by rankings of the 
States. I think we need--and with some initial problems due to 
the Buy America language, that funding is underway. We need to 
continue it and we need to continue that commitment to deliver 
on the commitment we made to small communities to help them 
with the costs of cleanup. In the end, it is a cost, but it is 
a shared cost that all America has an interest in clean water 
and all America has an interest in cleaning up.
    So I welcome the gentleman's comments and welcome his 
participation.
    Mr. Hall.
    Mr. Hall. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    Administrator Jackson, thank you for being here.
    In my district also we have all kinds of water problems, a 
district that spans from the Delaware across the Hudson River, 
all the way to the Connecticut border, and have waterways that 
flow directly into Long Island Sound through Connecticut and 
others that flow into Delaware Bay and, of course, the Hudson 
flowing down through New York Harbor.
    We have, in Hopewell Junction, my home county in Dutchess, 
we have a trichloroethylene spill that has contaminated a plume 
of aquifer a mile and a half long and I believe three dozen 
families or so on bottled or trucked-in water because their 
wells are unsafe for them to drink, and they have vapor 
intrusion systems that are being provided by EPA and DEC. We 
have schools right now in my district where students with high 
blood pressure problems are being warned not to drink the water 
from the drinking fountains because of high sodium levels. We 
have every lake, virtually, in my district suffering from 
eutrophication from over-fertilization of nitrates and runoff 
from either lawn chemicals or from inadequate sewage treatment 
plants that are old and failing.
    My towns also can't afford it, but the question they are 
asking me first is not--they do ask how we are going to pay for 
it, but the first thing they say is we need clean water for our 
children and ourselves and our future generations; and the cost 
will be borne somehow by a combination of Federal, State, and 
local funds, but we do need to figure out the most efficient 
way to do it, but especially we need to do it.
    So thank you so much for being here, and I yield back.
    Mr. Oberstar. I thank the gentleman.
    The gentleman from Maryland, Mr. Cummings.
    Mr. Cummings. Thank you very much, Mr. Chairman. First of 
all, I want to associate myself with the comments of Mrs. 
Napolitano and I want to thank you, Mr. Chairman, for calling 
this hearing on the importance of reviving real enforcement of 
the Clean Water Act.
    The past eight years were an era of conscious neglect of 
environmental laws, and the data collected by both EPA and The 
New York Times bears that out. Staggering statistics have been 
recently released by each of these entities. As Administrator 
Lisa Jackson points out in her testimony, roughly one in four 
major facilities subject to Clean Water Act enforcement was in 
substantial noncompliance. Possibly more disturbing was the 
conclusion reached by this Committee and others that the data 
accumulated by The New York Times was more comprehensive than 
the EPA's own information.
    I am pleased to read of the new initiatives taking place at 
the EPA under the leadership of Ms. Jackson. She has made a 
commitment both to her employees at the EPA and to the American 
public that it is a new day at the EPA. Based upon her stellar 
reputation and her actions so far, I believe that her 
leadership will bring about real institutional reform, because 
it will take nothing short of that to rebuild the public's 
trust in this agency.
    When, according to The New York Times, only 2.2 percent of 
the Clean Water Act violations led to enforcement actions, 
there is a natural skepticism as to whether this agency was 
truly committed to its mission. As I am sure the Chairman will 
agree, delegation of responsibility to the States is no excuse 
for dropping the ball. While the States had their failures, 
EPA's unwillingness to exercise its own authority and to ensure 
enforcement at the State level was negligent disregard for the 
American people at best. This is our watch.
    As I mentioned, I am encouraged by Ms. Jackson's bold 
actions in her short tenure at the EPA. I look forward to her 
testimony, as well as the testimony of all of our witnesses, 
and hope that this yields a productive discussion about this 
critical issue.
    With that, Mr. Chairman, I yield back.
    Mr. Oberstar. I thank the gentleman.
    Mr. Arcuri.
    Mr. Arcuri. Thank you, Mr. Chairman. Thank you for holding 
this hearing.
    I would like to thank Administrator Jackson and the other 
witnesses for being here.
    The enactment of the Clean Water Act was a seminal event in 
our Nation's history and the preservation of its natural 
beauty. Being from New York, I consider myself exceptionally 
fortunate; we not only have the benefits of the Great Lakes, 
being on the Great Lakes, but also abundant water. It is a 
wonderful natural resource to have and it certainly makes the 
quality of life substantially higher.
    But I am very concerned with the fact that the Energy 
Policy Act of 2005 exempted some of the exploration activities 
for natural gas from the Clean Water Act. We are very fortunate 
in New York, we are on the Marcellus shale deposit and the 
Utica shale deposit, which means that we have access to a 
wonderful natural resource, that is, natural gas, and clearly 
it is important that we do all we can to bring that natural gas 
and use it to develop energy independence. But we shouldn't do 
it at the expense of our greatest natural resource, which is 
our water.
    I have a concern because while the State of New York takes 
strong measures to regulate and to enforce the same type of EPA 
laws, other States don't necessarily have to do that. 
Obviously, just to give you an example, the northernmost point 
of Chesapeake Bay begins in my district, in the Village of 
Cooperstown, and that runs right through the Marcellus shale 
deposits. So, obviously, it is incumbent upon New York and it 
is important that New York takes steps to make sure that the 
water that runs through there is clean so that the Chesapeake 
Bay doesn't experience the pollution as a result of what we 
call hydraulic fracking the natural gas development. So I think 
it is very important that we take measures to ensure that the 
Energy Policy Act of 2005 is changed and amended so that the 
Clean Water Act also applies to that.
    There is no question that achieving energy independence is 
important, but it should not come at the cost of protecting our 
greatest natural resource, which is our water.
    Thank you, Mr. Chairman, again, for holding this hearing, 
and I yield back the balance of my time.
    Mr. Oberstar. Thank you very much.
    We will now proceed with our very patient Administrator. 
You have heard a wide range of views from Members and will hear 
a lot more after your testimony is delivered. Thank you very 
much for participating today and for your vigorous start with 
EPA.

  TESTIMONY OF THE HONORABLE LISA P. JACKSON, ADMINISTRATOR, 
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

    Ms. Jackson. Thanks, Mr. Chairman. I will try to be brief, 
but I ask for your patience too, because there are a number of 
things I want to make sure I present to the Members of the 
Committee.
    Thank you to the Committee for having me here today. I am 
delighted to be here to discuss the state of our Nation's 
waters. I would like to focus my remarks on our Nation's water 
quality and the challenges we face to improve it, along with 
EPA's implementation of the Clean Water Act and the steps we 
are taking to improve Clean Water Act compliance and strengthen 
our clean water enforcement program.
    We certainly all agree, and I heard this morning, that 
having clean and safe water in our communities is a right for 
all Americans. We also know that clean water is essential to 
our health, our environment, and our economy. As we commemorate 
the 37th anniversary of the Clean Water Act, I want to begin by 
thanking you, Mr. Chairman, for your steadfast leadership and 
constant concern for the issue of clean water. I do not believe 
it is an understatement to say that we would not be where we 
are today were it not for your leadership and many Members of 
this Committee, and I thank you for that.
    But we must also reflect on the progress that has been made 
over the past 37 years and also focus on the enormous 
challenges ahead. To put it in a phrase, Mr. Chairman, we have 
a long way to go.
    The Clean Water Act was enacted to restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters, and EPA is the agency that has primary responsibility 
to achieve these goals. As such, it is EPA's mandate to use its 
resources effectively, including vigorously enforcing the rule 
of law to achieve this result.
    There are significant water quality problems facing too 
many communities. There are many diffuse pollution sources that 
are not regulated by the Clean Water Act. There is inadequate 
information about some sources, which can limit the ability to 
identify serious problems quickly and the ability to take 
prompt actions to correct them. And adding to our challenges, 
recent Supreme Court decisions have increased the difficulty of 
determining which water bodies are covered by the Clean Water 
Act in many parts of the Country.
    The main tool that EPA has to achieve positive water 
quality results is the National Pollutant Discharge Elimination 
System, or the NPDES program. EPA established this program soon 
after the passage of the Clean Water Act, and its 
implementation by EPA and authorized States has resulted in 
significant water quality improvements throughout the Country.
    Under the Clean Water Act adopted in 1972, the universe to 
be covered by the NPDES permit program was estimated to be 
100,000 point sources. Today, nearly 1 million point sources 
are covered by the NPDES program. This increase has 
significantly affected the ability of EPA and the States to 
administer and enforce the NPDES program. We are falling short 
of this Administration's expectations for the effectiveness of 
our clean water enforcement programs. Simply put, Mr. Chairman, 
the time is long overdue for EPA to reexamine its approach to 
Clean Water Act NPDES enforcement to be better equipped to 
address the water pollution challenges of this century.
    Data available to EPA shows that, in many parts of the 
Country, the level of significant noncompliance with permitting 
requirements is unacceptably high and the level of enforcement 
activity is unacceptably low. For example, one of every four of 
the largest Clean Water Act dischargers had significant 
violations in 2008. Many of these violations were serious 
effluent violations or failure to comply with existing 
enforcement orders.
    The Government's enforcement response to the violations is 
uneven across the Country. For example, a violation in one 
State results in the assessment of mandatory minimum penalties, 
while in another State no enforcement action is taken for the 
exact same violation. This situation creates a competitive 
disadvantage for States that are enforcing the law, and we need 
to change this.
    Strong and fair compliance and enforcement across the 
Country is vital to establishing a level playing field for 
industrial facilities, preventing some regions from attempting 
to achieve an economic advantage over others. Most importantly, 
clean water is not a luxury. Rather, we need to make sure that 
all citizens, regardless of the State that they live in, should 
be able to drink safe water and swim and play in clean lakes, 
rivers, and bays.
    We need to address these key problems, and that is why I am 
happy today to announce EPA's new Clean Water Act enforcement 
plan.
    EPA's Enforcement Office, led by Cynthia Giles, has decided 
to act on three crucial steps to strengthen Federal and State 
Clean Water Act enforcement to better protect water quality.
    First, we need to develop more innovative approaches to 
target our enforcement to the most serious violations and the 
most significant sources. We need to ensure that the million 
permits out there we find them to be protective and that 
appropriate civil and criminal enforcement for factories and 
large wastewater treatment plants that unlawfully discharge 
pollutants to our waterways exist. We need to reshape our 
enforcement program to be more effective in tackling violations 
from the many dispersed sources that continue to be serious 
threats to our waters and a major reason many of our waters 
don't meet standards. Some of the biggest threats are posed by 
concentrated animal feeding operations and by contaminated 
stormwater flows from industrial facilities, construction 
sites, and urban streets that end up in our waters.
    Second, we need to strengthen our oversight of State 
permitting and enforcement programs. Many States have strong 
water quality protection programs and take enforcement to 
ensure compliance, but we have seen great variability amongst 
the States in enforcement performance. It is EPA's job to 
clearly articulate the acceptable bar for State clean water 
programs and consistently hold States accountable. In 
situations where States are not issuing protective permits or 
taking enforcement, EPA needs to act to strengthen programs and 
pursue Federal enforcement as necessary.
    Third, we are and will continue to take immediate steps to 
improve transparency and accountability. We have a 
responsibility to tell it like it is to the American public.
    We have already published the data and information that EPA 
has on Clean Water Act compliance and enforcement across the 
Country on our Web site. We will continue this practice as new 
information becomes available. We are also working to 
accelerate the development of 21st century information 
technology tools to help us gather information more efficiently 
and make it easier for the public to access that information.
    For example, I am directing my staff to quickly develop a 
proposed rule requiring electronic reporting from regulated 
facilities to replace the current paper-based system. 
Electronic reporting could save regulated facilities, EPA, and 
the States millions of dollars each year. At the same time, 
providing that information to the public shines a spotlight on 
facility performance.
    We believe that making information on environmental 
discharges available to the public will increase the pressure 
on regulated facilities to self-police and reduce their 
pollution, just as we have seen with the Toxics Release 
Inventory.
    EPA plans to work closely with States to implement these 
actions and make long-term improvements in our Clean Water Act 
enforcement and compliance plan.
    I could quickly highlight some actions we are taking now to 
focus our enforcement actions on those actions that pose a 
serious threat to water quality.
    We are strengthening our efforts to enforce existing rules 
from limiting pollution from concentrated animal feeding 
operations. Where there are facilities or clusters of 
facilities with large numbers of animals that are discharging 
without a permit or in violation of their permits, they can 
cause significant pollution problems and concerns to 
communities. It is difficult to know where these facilities are 
when they do not have to apply for permits; however, we are 
working to develop innovative strategies that will identify the 
facilities that are violating requirements and present the most 
significant threats, and we will ensure that appropriate 
enforcement action is taken in these situations.
    Mr. Chairman, enforcement is one tool that we can use to 
address water quality problems, but long experience has shown 
that effective enforcement is essential to the integrity of our 
Clean Water Act protections and enforcement makes a real 
difference in our ability to deliver the water quality the 
American public expects.
    EPA is committed to building the Nation's confidence that 
these resources will be protected.
    We greatly appreciate the leadership of this Committee and 
we look forward to coordinating with the Chairman and the 
entire Committee as we work to achieve these important goals. 
Thank you.
    Mr. Oberstar. Thank you very much, Madam Administrator. 
Your testimony is refreshing; it shows a firm commitment, a 
determination to move ahead, and you have already laid that on 
the table. You got it going in the right direction.
    Just a comment before I go to Members for our overall sort 
of structure, and that is Section 309 of the Clean Water Act 
sets the requirements for calculation of a civil penalty for 
violation of the permitting requirements. It establishes as 
criteria seriousness of the violation, the history of 
violations, and the economic benefit resulting from the 
violation, that is, the economic benefit that would result if 
the violation is lifted, cured. The law is clear that economic 
benefit from violation of the Clean Water Act should be 
recaptured in the potential enforcement not only to reduce the 
incentive to pollute, but to promote deterrents.
    So I want to say that I want Members to keep that in mind 
as they go forward, and I am going to now recognize Members who 
did not make an opening statement, in the order in which they 
serve on the Committee. So we will begin with Mr. Kagen.
    Mr. Kagen. Thank you, Mr. Chairman. It is an honor to 
follow you at any point in time. Because of your great efforts, 
this Committee is going to move forward a bill that really will 
address its title, the Clean Water Act.
    Administrator Jackson, thank you for being here this 
morning. Thank you for the work you are about to do. I don't 
envy you in your position. I came to Congress in 2006 as a 
doctor; I thought all I had to do was fix health care. Then the 
roof caved in on the economy and everything else that we are 
doing. So I understand what it is like to have a large mess to 
clean up.
    You mentioned in your opening remarks about the importance 
of enforcement, the importance of oversight and providing 
accountability and transparency in everything that you intend 
to be doing, and you hadn't focused on prevention. We are going 
to be hearing testimony after yours of one of my constituents 
from northeast Wisconsin, Mrs. Treml, about her situation that 
her family and her neighbors and many people in the region 
experience when farming and agricultural activities take place 
over an escarpment, a land mass that allows nutrient material 
and manure to seep directly into the drinking water.
    But what are you doing in terms of prevention? What is your 
orientation?
    Ms. Jackson. Thank you, Congressman. The entire NPDES 
structure, the idea of requiring a permit from those who intend 
to discharge into waters of the United States was intended to 
say up front that we know that any amount of pollution acts as 
a detriment to water quality. There are some times when we have 
to allow some amount of pollution; that is what the permits 
are, but also gives us a framework to come back later to find 
out if people are abiding by it.
    The particular case that you reference--and I have read the 
testimony--is that of an issue where we do not have 
jurisdiction, per se. The Clean Water Act does not cover 
permitting or prevention for groundwater seepage of nutrients. 
In this case, I understand it actually wasn't through 
groundwater, it sort of ran over a snow pack or land and into a 
well.
    Mr. Kagen. So it is true, then, that in the existing 
legislation and laws there is no legislative language for you 
to follow that would allow for your jurisdiction over the 
runoff of agricultural wastes?
    Ms. Jackson. The runoff, yes. If it ends up into surface 
water and it is jurisdictional surface water, there is a 
potential for permitting and enforcement in those cases, and we 
are committing, as I said in my testimony, to vigorous 
enforcement there. The particular case in Ms. Treml's case was 
one in which there was no surface water nexus, so I am not sure 
that there would have----
    Mr. Kagen. Is it also true that entities in agriculture and 
other businesses can self-regulate themselves and self-
determine what they are going to allow to run off their 
properties or into our waterways?
    Ms. Jackson. Well, the current CAFO rules say that a 
concentrated animal feeding operation should identify whether 
it believes it will discharge, and then, and only then, will it 
be required to get a permit. So for inadvertent discharges or 
discharges that end up entering surface water, we cannot say, 
right now, to a facility you are required to have this permit, 
they must self-identify.
    Mr. Kagen. Well, it is an obvious thing to point out, but I 
will point it out, that no matter how perfect we are in 
crafting legislation to help prevent runoffs, to help prevent 
the pollution of our waterways, it really does come down to 
human behavior and to the judgment of people who are operating 
their businesses, whether it is an agricultural industry or 
otherwise, to not just interpret the law, but to understand 
what would be good for their environment and also for their 
neighbors.
    Along those lines, do you feel that the local Department of 
Natural Resources in States like Wisconsin are adequately 
staffed?
    Ms. Jackson. I believe, sir, that resources are a real 
concern. As we have learned more about the threats to our 
drinking water and our surface water, a great deal of the 
program really does fall not only on State governments, but 
oftentimes--I know from my experience in New Jersey--to local 
jurisdictions--county, health departments; very important to 
ensuring safe drinking water. And I know and agree with 
comments made earlier that these are tough times and that 
resources are a real concern.
    Mr. Kagen. Thank you for your comments. As someone who 
represents some of the greatest measurement of coastline, not 
just Lake Michigan, but many of the lakes and rivers in 
northeast Wisconsin, it is a pleasure to look forward to 
working with you and making certain that we can prevent 
additional problems. It is a lot easier to prevent a problem 
than to clean it up after it has already taken up, and it is 
also more cost-effective.
    And I yield back my four seconds.
    Mr. Oberstar. The gentleman from Kansas, Mr. Moran.
    Mr. Moran. Mr. Chairman, thank you. I have no questions, 
but I would like to seek consent to offer a statement of the 
Kansas Farm Bureau regarding the Clean Water Act letter dated 
October the 14th from its President, Steve Baccus.
    Mr. Oberstar. Without objection, the letter will be 
included in the record.
    Mr. Moran. Thank you, Mr. Chairman.
    [The information follows:]

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    Mr. Oberstar. Mr. Duncan.
    Mr. Duncan. Well, thank you very much, Mr. Chairman. I just 
have a couple questions.
    Administrator Jackson, have you considered and do you 
support or would you support setting up a clean water trust 
fund and wastewater trust fund similar to the aviation and 
highway trust funds? Have you ever thought about that?
    Ms. Jackson. The Administration has no position on any 
additional trust funds for water quality. I would point out 
that there has been a significant influx of money in the 
revolving funds right now for infrastructure investments in 
communities, as the Chairman mentioned, $6 billion for 
wastewater and drinking water infrastructure investments, 
against, admittedly, a need that is much, much greater than 
that.
    Mr. Duncan. As I was going through your testimony, it was 
very brief, and in that brief testimony I counted up there were 
26 times where you used the word enforcement or enforcing. 
Maybe you are trying to send a message that you intend to get 
very tough, but what I am wondering about, will the EPA try to 
help communities, first, to comply, or are you just going to 
come down on them without first trying to work with them to 
help them come into compliance?
    Ms. Jackson. I do, sir, believe that enforcement plays a 
very important role. Research shows that enforcement, that the 
belief on the part of those who hold permits, that they mean 
something, that there is a penalty if they are violated is very 
important to changing behavior, it is one of the ways to do it.
    In the case of communities, I think EPA has a strong and 
long history of trying to work hard to come up with meaningful 
time lines to get into compliance, so that when you are talking 
about municipal impacts, when you are talking about impacts on 
ratepayers, to try to spread that out over a period of time to 
be in compliance.
    When it comes to industrial facilities, especially 
significant noncompliance, remember, this is noncompliance that 
often shows a pattern, that in order to be in significant 
noncompliance like 25 percent of these facilities are, it is 
oftentimes a severe problem and it could be one that has gone 
on over time. So the ideal of enforcement is that the 
punishment, if you will, should sort of fit the nature of the 
crime. If it is a severe problem, we should have some 
deterrents and people should know that that is not going to be 
tolerated.
    Mr. Duncan. I noticed in our briefing paper that all but 
four States have assumed the regulatory authority for water 
pollution programs. Do you intend to work primarily through the 
States first, since 46 States have that primary authority, or 
do you see problems with that?
    Ms. Jackson. No, sir. I think we absolutely must work with 
the States. Forty-six out of 50 have jurisdiction; they are 
delegated to run these programs and they are delegated 
essentially to stand in EPA's footsteps and permit and enforce 
under the Clean Water Act. As I said in my testimony, I think 
EPA's role, 37 years after the Act was passed, is to act as a 
fair arbiter, look across the Country and ensure that a 
violation in one State is being handled similarly to another; 
otherwise, there is an unfair playing field for business and an 
unfair playing field, frankly, for clean water.
    Mr. Duncan. Do you think that the States are doing an 
adequate or good or excellent job on this in those duties at 
this point?
    Ms. Jackson. I think that it varies across the Country. 
There are States who run very good programs, and it also 
depends on the program. I think almost every--I would hesitate 
to guess, this is an educated guess, that every State is 
balancing its resources as best it can. With the explosion in 
the universe of permitted facilities from 100,000 expected to 
over a million, there is some juggling, and I think it is EPA's 
job to help States figure out where enforcement should be 
targeted to get clean water. Not to get huge penalties, to get 
cleaner water. Where can we have a big impact on water quality? 
And that is where we should use limited resources.
    Mr. Duncan. What you have now, you have two-thirds of the 
counties in the U.S. are losing population. But then you have 
real fast growth in certain other areas, so the circumstances 
and the needs and the resources vary widely across the Country. 
So it seems to me that it is going to be pretty difficult to 
come up with one size fits all solutions when you have such a 
wide variation in the population movement in the Country.
    Thank you very much, Mr. Chairman.
    Mr. Oberstar. I want to acknowledge the gentleman's work as 
Chair of the Water Resources Subcommittee for six years, 
holding hearings frequently on the issue that he raised of a 
funding mechanism, including a trust fund, including other 
ideas such as infrastructure bank. He has been very persistent 
and very participatory in discussions of this issue, and this 
Committee, in the last Congress, under Ms. Johnson's 
leadership, and again in this Congress, continued searching for 
an acceptable mechanism to create a trust fund. We look forward 
to any ideas the Administration may have on this issue, but the 
vexing problem is a revenue source, revenue stream, and we have 
to work with Ways and Means Committee on that.
    We have already passed our State revolving loan fund, the 
reauthorization, passed it in the 110th Congress. The Senate 
didn't act on it under threat of veto from the previous 
administration, and now the Senate seems to be impaled on its 
own procedural problems, so we look forward to them hopefully 
doing something--if we were a unicameral legislature, I tell 
you we would have a whole lot of stuff in law.
    Ms. Richardson.
    Ms. Richardson. Thank you, Mr. Chairman. Out of respect to 
my colleagues, I am only going to ask one of my questions, 
because I know they would like to ask before we break for 
votes.
    Ms. Jackson, you recently came to my district on October 
3rd. Unfortunately, I wasn't aware you were coming; otherwise, 
I would have shown you a few things and would have liked to 
have chatted with you about my question. I notice in your 
testimony you make reference to factories, large wastewater 
treatment plants, animal feeding, industrial facilities, 
construction sites, urban streets into our waters, but you 
failed to say anything about beaches and flood channels that 
are going into our water that is serious pollutants and many 
problems in my community.
    In 2007, the beach closings and advisories nationwide hit 
their second highest level in 18 years. The Natural Resources 
Defense Council has been tracking them since that time, and in 
Los Angeles County alone there were over 1,696 beach closings 
and advisory days due to elevated bacteria levels, sewage 
spills, and stormwater runoff.
    What do you intend upon doing about this and what 
additional resources do you think the EPA can bring to bear to 
focus enforcement in this area?
    As I said, I was a little disappointed that in your 
testimony there was absolutely no reference to these areas, 
which for me, coastal communities that many of us represent, is 
a very serious problem.
    Ms. Jackson. Thank you. I do apologize for the oversight, 
and I will get back out and I would love to see you in your 
district, Ms. Richardson. Let me say, coming from New Jersey, 
that perhaps it was an era of taking for granted something, 
which is that, yes, our coastal areas tend to be the final 
outfall. You know, we spend so much time trying to prevent any 
major contamination entering waterways, but EPA has had, for 
years, a strong emphasis on wet weather flows on combined sewer 
overflows, municipal sanitary sewer systems, trying to get old 
facilities under contract to try to ensure that, whether it be 
floatables or pathogen contamination, that we reduce and, over 
time, see fewer and fewer beach closures and other water 
quality incidents further upstream of the beaches. So it is an 
oversight not to mention that. Beaches ultimately see quite 
clearly the impacts of water quality degradation.
    All of the things that I mentioned in my testimony would 
have the kinds of impacts that I think you would hope for, 
specifically the emphasis on looking for enforcement on the 
places that have the most potential to impact water quality and 
also to impact recreation or places like beaches, where people 
congregate in order to specifically enjoy water quality and 
enjoy the resource of the water.
    I believe that the emphasis on the major permittees is 
important, but the non-point source pollution, the kinds you 
mentioned, especially stormwater discharge, whether it be from 
agricultural operations or urban streets, is a huge issue that 
is quite visible along our beaches as well. So as we look to 
step up enforcement to target our enforcement, I commit that we 
will make sure that one of the things we look at are impacts on 
outfalls that can potentially impact beach water quality and 
beach closure issues as well.
    Ms. Richardson. Thank you very much.
    Ms. Jackson. Thank you.
    Mr. Oberstar. Ms. Schmidt, before you leave, would you like 
to--we have plenty of time to vote.
    Ms. Schmidt. I am fine.
    Mr. Oberstar. All right.
    Ms. Fallin.
    Ms. Fallin. Ms. Jackson, I appreciate your coming today. 
Thank you for being here. Do you feel like States are doing all 
that they need to be doing to make sure that we have clean 
water and enforcing the rules and regulations that we have 
right now?
    Ms. Jackson. I think State performance varies. Let me also 
point out that the four States where EPA implements the Clean 
Water Act, our performance varies, and I think that one of the 
things we need to be able to do is hold up an honest mirror, 
give information, as much accurate information as we can about 
State performance, and allow States certainly to tell their 
story, but also as an agency sort of hold States to a steady 
bar.
    Ms. Fallin. I understand the need to have uniform 
consistency around our Nation as it comes to the States and the 
different divisions that they have for enforcement regulations, 
but I have been hearing, back in my home State of Oklahoma, 
from business communities that they have seen a big difference 
in the administration of the EPA since the new Administration 
took over, and have just said that they felt like there is a 
heavy hand on business right now during this economic 
recession.
    I guess my only comment would be that as we continue to 
make sure that we do keep our environment clean--I am all for 
keeping clean water and our environment clean and being 
responsible in the business sector--that we also make sure that 
we work with the States, that we work with the communities as 
we are dealing with the rules and regulations and enforcement 
to give them a chance to try to do the right thing.
    And I heard your comments that you want to make sure that 
they understand there are laws, rules, and regulations, and 
they have to comply with that, but I have heard from several 
businesses in my community that they are feeling a lot of 
pressure right now during a tough time, and they want to 
comply, they want to do the right thing, but they want to have 
a chance to do the right thing.
    That is just my comment.
    Ms. Jackson. And I really appreciate it. It gives me a 
chance to make a couple of points. First, about Oklahoma, good 
inspection coverage of facilities, accurate reporting of 
noncompliance, and high rate of timely enforcement. So I think 
one of the things that having a level playing field does is 
those States who have sort of been on the job, I would hope, 
that facilities wouldn't see a huge difference as we say we are 
going to raise the bar, because they have already sort of been 
working to that standard.
    So I am troubled by what I would say to those businesses is 
that the idea here is to continue to realize that this is a 
program that works through the States, for the most part, that 
we need to help States with technical assistance in those cases 
where they need it, but we also need to put the data out there 
and challenge them and, in some cases, be ready to step in if 
we are not met with agreement. But I wouldn't think that would 
be a case back home.
    Ms. Fallin. Okay.
    Ms. Jackson. Thank you.
    Ms. Fallin. Well, I appreciate your comments, and I guess 
my comment is, especially during these challenging times, just 
to enforce the law, but yet work with the States and work with 
the local authorities, especially the business community. Thank 
you.
    Ms. Jackson. Thank you.
    Mr. Oberstar. I thank the gentlewoman. We have now four 
minutes remaining on this vote. We will recess and return 
hopefully within 20 minutes. I know the Administrator has a 
noon departure obligation, so we will try to honor that.
    The Committee stands in recess.
    [Recess.]
    Mr. Oberstar. The Committee on Transportation and 
Infrastructure will resume its sitting. When we left, the 
rotation goes to the Democratic side and the Chair recognizes 
Mr. Teague.
    Mr. Teague. Thank you, Mr. Chairman, for hosting this 
meeting and for allowing me the opportunity to ask some 
questions.
    Ever since being elected to Congress, there is an issue 
that constituents of mine in New Mexico have brought up time 
and time again. What I have found most remarkable about this 
issue is that it is not just one organization or one industry 
that is talking about it. I hear from a wide range of New 
Mexicans representing diverse constituencies. It could be a 
dairy farmer or cattle grower, an oil and gas producer, or a 
developer, or someone who builds our roads, or local government 
official, but they have a central concern. The issue they are 
concerned with is the extent of Federal authority under the 
Clean Water Act.
    Many of my constituents fear that the effective State and 
local regulation will be replaced by vague, all-encompassing 
Federal term ``waters of the United States.'' They fear--and I 
share this concern--that the legislation expanding Federal 
authority under the Clean Water Act would result in unneeded 
Federal jurisdiction over the work that many of our businesses 
and agriculture producers do on a daily basis.
    Keeping our water clean is one of our most important 
responsibilities because, where I come from, there is not much 
water and we need to keep what we have clean. But the 
regulation needs to be smart and honor the effective roles that 
States and local governments have in managing our most precious 
resource.
    I guess one of the questions I would like to ask is 
assessing the jurisdiction of the Clean Water Act, while it may 
be difficult, but the deletion of the term ``navigable'' from 
the definition of waters of the United States, as proposed by 
the Clean Water Restoration Act, is a blunt instrument that 
could lead to an unreasonable expansion of the legislation to 
waters it was never intended to apply to. Wouldn't an 
alternative approach, one that perhaps leaves the definition 
alone but lists the precise type of waters the Clean Water Act 
would apply to, resolve all of EPA's jurisdictional problems 
without creating the uncertainty deletion of the term 
``navigable'' would cause?
    Ms. Jackson. Thank you. I appreciate your recognition of 
the jurisdictional issues associated with implementation of the 
Clean Water Act right now, and I also appreciate your 
suggestion and, with the Chairman, look forward to continuing 
dialogue on this issue, because I know jurisdictional issues 
are something that he has indicated and the Administration has 
joined him in believing can only be fixed by Congress, and must 
be fixed. We are actually calling on your help.
    With respect to your specific question, I would enjoy a 
conversation on it as well. There are certainly many different 
ways to do it, but what I can tell you is that the scope of the 
Supreme Court decisions have made it such that the Federal 
agencies, and State agencies as well, face significant 
challenges right now in implementing, permitting, and 
enforcement programs because so much time and effort is spent 
simply trying to determine whether or not jurisdiction can be 
asserted. So recognition, I believe that we need to fix this, 
is a very, very important thing.
    Mr. Teague. You know, one of the questions is some things--
this was partially asked and answered earlier, but it has to do 
with the jurisdiction through the Clean Water Restoration Act. 
The New York Times ran an article, and in the article it said 
that there are not problems with the Act's jurisdictions but, 
rather, the permit violations that were enforced. So, in other 
words, if jurisdiction was not taken and a permit had not been 
issued, States would never have found the violation in the 
first place, and I was wondering how you see is there 
association between a supposed lack of enforcement and the need 
for more jurisdiction?
    Ms. Jackson. Enforcement, Mr. Teague, is made harder when 
you are not sure whether you have jurisdiction. So we have 
actually seen cases that are lost over--water quality cases 
that are lost over the question of whether or not jurisdiction 
had or could be established because, right now, the Supreme 
Court cases, and now, increasingly, circuit court cases behind 
the Supreme Court cases, make it so that nobody is quite sure 
what the rules of the road are. So there certainly is an 
impact.
    Where I thought you were going on your question, as well, 
is that we know that about a third of the U.S. population gets 
some or all of their drinking water from intermittent, 
ephemeral, or headwater streams, many of which are the water 
bodies where jurisdiction is most in question right now.
    Mr. Teague. Okay. Thank you for answering those questions.
    Ms. Jackson. Thank you.
    Mr. Oberstar. In further response to the question the 
gentleman raised about the Supreme Court decisions, I want to 
state once again the Act of 1972, the Clean Water Act, to 
provide for water pollution control activities, public health 
service of the Federal Security Agency and the Federal Works 
Agency and for other purposes, that goes back to the origins of 
the Act in 1956.
    But in the 1972 Act, Section 101, declaration of goals and 
policy, the objective of this Act--and you stated it in your 
opening remarks--is to restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters. No 
distinction about it, the Nation's waters; and that is how the 
Act has been administered for all these many years.
    Now, Mr. LoBiondo.
    Mr. LoBiondo. Thank you, Mr. Chairman, very much.
    Madam Administrator, welcome. It is good to see you.
    Madam Administrator, as you are aware, the EPA was recently 
forced by the courts to develop a permit under the Clean Water 
Act, the NPDES system, to regulate the discharge of ballast 
water and other incidental discharges like bilge water and deck 
wash from vessels. While we all agree that the discharges 
should be subject to regulation, I am very concerned and many 
of the people that I represent are very concerned that under 
this system the States are adding additional and often 
contradictory requirements on vessel operators that impair the 
flow of commerce and undermine the economic viability of our 
maritime sector.
    An example of this would be, in Michigan, vessel operators 
are required to treat their ballast water with chemicals. But 
if you travel across the lake, you cannot discharge any ballast 
treated with chemicals in Wisconsin because of Wisconsin's 
regulations. And now the Coast Guard is coming out with a 
separate standard for ballast water discharge and your staff 
has informed us that it will be impossible for you to ensure 
uniformity between the EPA standard, the Coast Guard standard, 
and standards implemented by the various States.
    So, in a few months we are going to have the EPA, the 
United States Coast Guard, and what looks like to be about 30 
States with different standards for discharge of ballast water. 
It is an impossible situation for our folks to sort through 
when they are transporting along our coast, the Great Lakes, 
and the inland rivers.
    So, Chairman Oberstar, I want to particularly thank you for 
working with me and those of us who find this issue critical--
and many of them are involved in the fishing industry--and for 
your commitment to solve the problem before the move the Coast 
Guard bill forward. That is a tremendous help, Mr. Chairman, 
and I know this is a daunting task.
    But, Madam Administrator, my question to you is how would 
you recommend we best regulate ballast water and other 
incidental discharges to avoid the problems we have now?
    Ms. Jackson. Thanks, Congressman, and thanks for your 
leadership on this and so many clean water issues in New Jersey 
and for the Country as a whole.
    I believe that you, in your question, lay the foundation 
for an answer we must come up with. States feel very strongly 
that because of a lack of regulation for such a long period of 
time, they were watching invasive species--which is what these 
ballast water regulations are aimed at--becoming increasing 
problems. Places like the Great Lakes, California, and other 
great water systems see invasive species as a huge threat, so 
there has been a response.
    But you point out the countervailing view, which is, 
nationally, it is almost impossible for any shipper now to know 
what the rules of the water are as they move through national 
commerce; and international adds an even greater level of 
complexity because much of the Coast Guard's work, as I 
understand it, is also dealing with the international community 
on ballast water standards as well.
    I am happy to work on this issue with you further and with 
the Committee. I believe it is important to get all the players 
in a room to try to come up with a set of rules of the road for 
the Country as a whole that we can work on together.
    Mr. Oberstar. Would the gentleman yield?
    Mr. LoBiondo. Certainly.
    Mr. Oberstar. If I might supplement the gentleman's 
question with an approach we discussed in meetings with States, 
authorities and shippers, and with EPA as a possibility of, 
rather than amending the Clean Water Act on the issue of 
priority or preemption, to engage the States in a compact in 
which they would agree to abide by a single national standard 
and engage EPA in the shaping of that compact. That could work 
for both the Great Lakes and the east and west coast States. It 
would still be within the ambit of the Clean Water Act. We 
would not have to deal with the preemption issue and we would 
achieve the goal.
    Have I stated it right, Mr. LoBiondo?
    Mr. LoBiondo. Yes, sir.
    Mr. Oberstar. What do you think about that? Give it some 
thought?
    Ms. Jackson. Yes, I am happy to give it thought, Mr. 
Chairman. I think it is an intriguing idea and I think it, 
again, highlights the importance of having all the folks at the 
table who have the ability to regulate here agree on the need 
to come up with a set of rules on the road that allow business 
to operate, quite frankly, to bring us the products we need and 
export the products that we want to sell, but also recognize 
that invasive species are increasingly a huge threat and a huge 
concern, and it is hard to put that genie back in the bottle. 
But I think it is an intriguing idea and I would be happy to 
work with you on it.
    Mr. LoBiondo. I think it would be great, although it would 
take a whole bag of pixie dust to get all the States to agree 
on this. I think a system like we deal with with the sewage 
from vessels, where we can get together might be the one, but 
you can see the dilemma. And I want to make it clear that my 
vessel operators, fishing boats, and otherwise, it is not the 
regulations they are upset with. You can set the standard 
wherever you want to set it, but they want that to be the 
standard so they know that, when they are moving from port to 
port, they are not going to be put out of business and then 
have a whole different set of regulations to work with; and I 
don't think that is unreasonable.
    So this genie is out of the bottle here. We are going to 
have to somehow either figure out how to get it in the bottle 
or come up with something else.
    Mr. Chairman, I have all the confidence in the world that 
your leadership abilities will get us to that point.
    Mr. Oberstar. I am not sure about that bag of pixie dust, 
though.
    Mr. LoBiondo. Okay. Thank you.
    Mr. Oberstar. Maybe if we get them all in one room, we can 
reason together and achieve some good.
    Mr. Rahall?
    Mr. Rahall. Thank you, Mr. Chairman.
    Administrator Jackson, I would like to ask you, just for 
the record, so we can be very clear, whether you believe that 
clarity and certainty is the goal of the EPA in the reviewing 
of coal mining permits. There are concerns that EPA is not 
providing clear cut directions, that coal operators are not 
being told what requirements with which they need to comply. 
There is the fear that there are no clear rules of the game by 
which to seek mining permits.
    Would you care to comment on those concerns and 
frustrations that are out there?
    Ms. Jackson. Yes, thank you, Congressman. I certainly have 
heard them and I am happy to address them. Yes, I absolutely 
believe that the end of the road should be clarity and 
certainty in the regulations that EPA is imposing through the 
Clean Water Act. You highlighted in your opening remarks the 
interplay between SMCRA and the Clean Water Act, and it is 
sometimes rocky as well.
    On individual permits, on the permits that are currently 
being reviewed, those permits have been in litigation for 
literally years and years, and that is a normal outcome of what 
happens when there isn't clarity in regulation up front and 
when all the regulators who may have a stake and an issue are 
not consulted up front on that issue. So you get sort of this 
step-wise process where people apply for applications and it 
seems endless, and litigation results as well. So I believe 
that clarity is something that EPA owes the regulated community 
and the American public in its implementation of the Clean 
Water Act.
    Mr. Rahall. As you are aware, some of the more ardent and 
vocal opponents to what EPA is doing claim that you want to end 
all coal mining. Again, I just wanted to give you a chance for 
the record to clarify that.
    Ms. Jackson. Yes, I am happy to state for the record and 
say unequivocally that neither EPA nor I personally have any 
desire to end coal mining, have any hidden agenda, any agenda 
whatsoever that has to do with coal mining as an industry. I 
believe that coal can be mined safely and cleanly; I believe 
that it can be done in a way that minimizes impacts to water 
quality; and I believe it is EPA's role and responsibility and 
duty under the Clean Water Act to speak to those issues and 
only those issues.
    Mr. Rahall. Thank you. I appreciate the opportunity to meet 
with you prior to this hearing and prior to the questioning 
period, and look forward to meeting with you more in the 
future.
    Ms. Jackson. Absolutely, sir.
    Mr. Rahall. Thank you.
    Ms. Jackson. Thank you.
    Mr. Oberstar. Continuing those who had not--Mr. Young--made 
an opening statement.
    Mr. Young. Thank you, Mr. Chairman. I am sorry I am a 
little bit late.
    In this legislation we are talking about water. Where does 
the EPA stand and the Administration stand on the 
constitutionality of navigable waters, and who has authority 
over operating those waters?
    Ms. Jackson. The Administration, in a letter that was 
signed by the Council on Environmental Quality, myself, USDA, 
Department of the Interior, and the U.S. Army Corps of 
Engineers, put forth principles about the need to address the 
jurisdictional uncertainty around what is and isn't a water of 
the United States. The letter I think best outlines the 
Administration's position.
    The first principle essentially says that waters need to be 
looked at broadly; that we need to look at jurisdiction broadly 
over the waters of the United States. I believe it is the 
second principle that says it should be a clear test, it should 
not be a test that requires, as it does now, almost half of our 
staff time at the Federal level just trying to determine 
jurisdiction. We need to be able to get on to the business of 
protecting waters as well.
    Mr. Young. That is well and good, but it sounds to me like 
the Administration and EPA and the rest of them are really 
looking for a seizure of the authority on what is navigable and 
what is not. Now, in my Constitution in the State of Alaska, 
which was ratified by this Congress and by the people of 
Alaska, it specifically mentions the State has control over 
navigable waters and I am very concerned that there is a desire 
for a Federal agency to take and start asserting use of waters 
within a State that are State waters. Now, the Federal waters I 
am not particularly concerned about that, but the State waters 
are State waters.
    Ms. Jackson. You know, we are not asking for an expansion 
of jurisdiction; it is really putting the stated law back to 
what it has been for 30 years. The jurisdictional issues that 
we deal with now are over the state of the Clean Water Act as 
it was interpreted for literally 30 years. So what we are 
seeing now as a result is a huge logjam in the system, where 
there is so little clarity on jurisdiction----
    Mr. Young. But the legislation does not do that, and I am 
suggesting, Mr. Chairman, with all due respect to the author of 
this bill, before we move any legislation, it has to be 
perfectly clear, especially as has been ratified by the 
citizens and by this Congress when we became a State, that the 
waters belong to the State. There was never any argument about 
the State; it is by your agencies, you, EPA, Interior, start 
interpreting how they think it should be, not as the law says.
    Now, Mr. Chairman, with all due respect, this bill is not 
on my wish list if that isn't clarified, because that is a 
taking from a constitutional act of this Congress by agencies.
    Mr. Oberstar. Would the gentleman yield?
    Mr. Young. Gladly.
    Mr. Oberstar. What legislation is the gentleman----
    Mr. Young. The water legislation that you are proposing, I 
believe.
    Mr. Oberstar. Oh, that is not the subject of this hearing.
    Mr. Young. Well, I am bringing it up----
    Mr. Oberstar. We are not holding a hearing on that bill.
    Mr. Young.--because I think she is in the seat and she is 
part of it.
    Mr. Oberstar. And that bill has not been introduced yet, by 
the way.
    Mr. Young. I understand, Mr. Chairman, but when I have a 
witness--because I have a hard time getting hold of 
Administration chiefs of staff, etcetera, when I ask. When I 
was in the majority, there was no problem. But they have a 
tendency not to answer. So I am asking this question 
specifically for the reason for the State of Alaska.
    Mr. Oberstar. Well, in the Supreme Court decision, SWANCC, 
Justice Rehnquist clearly recognized authority of the Federal 
Government over navigable waters, but the opening paragraph of 
the Clean Water Act of 1972 makes it very clear that the 
objective of the Act is to establish and maintain the chemical, 
physical, and biological integrity of the Nation's waters. It 
did not distinguish.
    While there are references within the Act to navigable 
waters, what the Administrator has said is the confusion 
created by the SWANCC decision and Rapanos decision has caused, 
both in the Bush Administration and now for this 
Administration, excessive amount of time consumed in the 
permitting trying to delineate the meaning of the Court's 
decision.
    And if you are referring to the bill that I introduced in 
the previous Congress, the purpose was to establish consistency 
and clarity, and to incorporate into law the previous 
regulatory body by which the Act was administered, to respect 
some of those concerns that you have already expressed.
    Mr. Young. I thank the Chairman, but one of the things we 
have is how do you define what water is. Everybody knows what 
water is, but in the definition of water, is it a navigable 
stream, is it a puddle, is it a swimming pool? Whatever it is. 
And I am just very reluctant, when we deal with water--we have 
water battles in California, water battles in Arizona, water 
battles over the Colorado River, and we have water battles from 
Lake Michigan; and States have to have a real part of this 
program, and just not the Federal Government.
    Mr. Oberstar. That is correct, and that is the purpose. And 
we will have hearings further on specifically on the Clean 
Water Restoration Act, as it was called in the previous 
Congress. We are going to call it something else. We have heard 
all these concerns and I have several adjustments to the Act 
that I think the gentleman will be interested in.
    Mr. Young. Well, I am always interested in what the 
Chairman likes to adjust. Thank you, Mr. Chairman.
    Mr. Oberstar. Ms. Hirono?
    Ms. Hirono. Thank you, Mr. Chairman.
    Mr. Oberstar. Administrator, if you can hold off for just a 
few more minutes, there are three more Members.
    Ms. Hirono. Ms. Jackson, when we took our break, I was able 
to apprise you of a particular situation affecting the city and 
county of Honolulu. Mainly, I was very gratified to hear you 
say that when you are dealing with enforcement actions relative 
to municipalities, the impact of adverse decisions has a huge 
effect on ratepayers and that you want to be able to work with 
the municipalities and, of course, based on science and those 
conclusions that should be drawn. I was gratified to learn that 
you would be sending someone to my office to talk about that 
particular circumstance.
    You have been asked earlier about the witness who will be 
testifying right after you, and you noted that EPA would not 
have jurisdiction, did not have jurisdiction in that situation 
because it involved drinking water, not surface water.
    Ms. Jackson. Not quite, Ms. Hirono. The jurisdiction has to 
do with--we certainly have a safe drinking water act, which 
governs water safety of drinking water, and there is some 
amount of wellhead protection there. As I understand it--and I 
am cognizant that the witness is sitting right behind me, so 
she knows her situation better than me. But as I understand it, 
we would not have been able to assert jurisdiction over the 
application of the manure that eventually ran off and 
contaminated the well, as I understand the situation.
    Ms. Hirono. So you actually would have had jurisdiction 
over some elements of that whole situation.
    Ms. Jackson. We certainly have jurisdiction over any manure 
that enters surface water. I don't know, I am assuming this 
might be a private well, so whether or not we have jurisdiction 
over that private well, I would say no.
    Ms. Hirono. I think that is what gets so confusing for our 
people who are impacted by these kinds of actions. It is really 
hard for a normal person, regular person to figure out who to 
contact. So if this is an area that needs to also be clarified, 
perhaps you can look at it. And knowing that the water doesn't 
just stay in one place, that it just goes all over, right? And 
I don't know how you draw the line as to who has jurisdiction 
when. So perhaps that is something you can look at, because the 
circumstances described are really outrageous.
    Thank you.
    Ms. Jackson. I am happy to do that. Thank you.
    Ms. Hirono. Thank you, Mr. Chair.
    Mr. Kagen. [Presiding] Thank you, Ms. Hirono.
    The Chair recognizes Mrs. Capito.
    Mrs. Capito. Yes.
    Madam Administrator, thank you for being here. I would like 
to have a one-on-one conversation because I am sure you could 
tell from my opening statement I have a lot of concerns about 
what is going on with EPA in my State and the coal mining 
permits, so I appreciate that if that could occur.
    I have just been informed I get one question, so, in 
response to my colleague from West Virginia on the clarity 
issue and the definite steps that need to be taken, this is 
where a lot of the frustration is coming from our constituents, 
is the delaying, the inability to really see where not so much 
the end is, but how to get to the end. Whether it is an up or 
down, yes or no, it is this maybe land that we are living in 
that is extremely frustrating and is threatening a lot of jobs 
in West Virginia.
    So I guess what I would ask you--and in your statement 
here, when you talk about transparency and accountability, you 
state, quite rightly so, that it is your responsibility to tell 
it like it is. But even I have had meetings to try to figure 
out where this process is going and how it actually is going to 
be resolved in the end.
    My understanding is that, of the 79 permits, only 4 have 
gone to the Corps and those would be under a 60-day time. So 
that leaves another 75. Where are they? When could I tell my 
constituents that they will have an answer on that? And then 
once the Corps makes their decision after the EPA has had a 
chance to weigh in on these decisions, then it is my 
understanding that the EPA can then come back in and render 
another decision. So there again it is more uncertainty and 
lack of clarity as to what the end is.
    So I guess I would ask you would the EPA seek to suspend or 
revoke a permit further down the road? Can you go back to the 
former permits? And does this process really lend itself to the 
clarity that you have stated in your mission under your 
administrator-ship want to see at the EPA?
    Ms. Jackson. Thank you.
    Mrs. Capito. And, again, I would emphasize a lot of 
economic environmental issues are so intertwined in our State, 
as in many of these States, as you have heard.
    Ms. Jackson. Yes, thank you, and I am happy to meet with 
you on this issue separately, since time is limited. In 
response to your question, I will say this. As I mentioned 
earlier, these 79 permits have been held up for years by 
litigation. It is also no secret that EPA had significant staff 
level concerns that were raised with the Department of the 
Interior when the stream buffer rule, the rule that came out in 
2008, that is, ostensibly authorizes some of this work and is 
interpreted a long time by the State of West Virginia to allow 
large amounts of these valley fills. There has been scientific 
concern about it for quite some time.
    So we found ourselves, as I took over at EPA, at a 
situation where we had 79 permits that have been held up by 
litigation, some that EPA had never reviewed. These are not re-
reviewed permits, they had not been reviewed because of the 
litigation. All work had been stopped. And what we committed to 
was a process that we would outline the work, as much as 
possible, with the Corps of Engineers to work through those 79.
    Now, the 75 or so that are remaining are with the Corps of 
Engineers. As they notify us, they begin a 60-day clock for 
review of those permits----
    Mrs. Capito. They are not at the Corps yet.
    Ms. Jackson. Well, they are not physically there.
    Mrs. Capito. They are not on the 60-day clock yet.
    Ms. Jackson. The Corps starts the 60-day clock under the 
Memorandum of Understanding when they initiate review of these 
projects. It was EPA's job to determine which of the projects 
it wanted to have enhanced review on. We have done that and we 
did it after a 15-day period we went final on that list. So now 
as the Corps opens these permits for review and there begins 
the work of working with the permit applicants to try to 
address whether or not they have minimized valley fill and 
potential water impacts.
    What we are seeing with the science here is that, as these 
watersheds have more and more valley fill in them, frankly, we 
see water quality impacts, and it starts at the ecosystem level 
with conductivity increases that indicate selenium and other 
increases, and we believe that over time that is going to be a 
larger problem, not a smaller one. So what really has to happen 
is rolling up the sleeves to minimize in these instances.
    Mr. Kagen. Meaning no disrespect, the gentlewoman's time 
has expired.
    The Chair recognizes Mr. Hare for a single question to move 
things along.
    Mr. Hare. Thank you, Mr. Chairman.
    Welcome, Ms. Jackson. I just want to say I think the 
President did a wonderful job selecting you.
    I know you have to leave, so maybe you can just even send 
the answer to my office so you can get out of here. But you 
said that EPA is developing innovative strategies that will 
identify animal feeding operations that are violating discharge 
requirements and present a significant threat to water quality. 
I was wondering you or your office might be able to elaborate 
on these identification strategies that you are developing.
    Ms. Jackson. I am happy to send information over. Cynthia 
Giles is right here. And I didn't introduce Pete Silva, so you 
give me an excuse to do that. He runs our water program. 
Cynthia runs our enforcement program.
    We are, right now, collaborating to try to identify ways to 
really look for large sources, and those concentrated animal 
feeding operations that either inadvertently or by practice are 
not getting permits, or get them and then violate them, are 
real concerns for water quality. So we would be interested in 
working with you if there are ideas on how to find the worst--
--
    Mr. Hare. That would be wonderful. Thank you very much and 
thank you for coming.
    Ms. Jackson. Thank you.
    Mr. Kagen. Thank you.
    The Chair recognizes our gentleman from down south, Mr. 
Taylor.
    Mr. Taylor. Thank you, Mr. Chairman.
    Ms. Jackson, thank you for sticking around longer than you 
were supposed to. Mine is a little bit different. As you know, 
the President is touring the Gulf Coast today. His schedule did 
not permit him to go to Mississippi, which is where the storm 
hit; Louisiana got the flood. One of the things that has 
happened since the storm is communities that, prior to the 
storm, had taken out loans for water and sewer based on the 
population at that time have had, in many instances, 40 percent 
population reductions from people who lost their homes and have 
not returned.
    We have made Ms. Woodcow, who is the Gulf Coast Recovery 
person, aware of this problem and asked for some, as best as 
you can, even loan restructuring or loan help for those 
communities that are down 40 percent through no fault of their 
own four years after the storm. We are going to send you some 
of that information today and I would ask the folks in your 
Department--I would have told this to the President had he 
visited Mississippi today, but I am going to ask the folks in 
your Department to take a look at that and see what we can do 
to help those communities, again, through no fault of them own 
with 40 percent fewer people than they had on August 28th of 
2005 to help pay back those loans.
    Ms. Jackson. Okay, thank you, sir. I will look for that 
information and I am happy to discuss it with you.
    Mr. Kagen. Administrator Jackson, thank you for appearing 
here. You are now dismissed and we will now call our next panel 
of witnesses, if they would please move to the table.
    We will be hearing from Judy Treml from Luxemburg, 
Wisconsin, Dennis Kavanaugh, who is a Representative of the 
Sandy Hook Waterman's Alliance; and Dr. Patricia Butterfield, 
our nurse and Dean and Professor, College of Nursing, 
Washington State University.
    The Chair is pleased to recognize Ms. Treml from Luxemburg, 
Wisconsin, a tremendous community of caring people. Thank you 
for coming here to Washington to give us your story.

     TESTIMONY OF JUDY TREML, LUXEMBURG, WISCONSIN; DENNIS 
KAVANAUGH, REPRESENTATIVE, SANDY HOOK WATERMAN'S ALLIANCE; DR. 
    PATRICIA BUTTERFIELD, PH.D., R.N., DEAN AND PROFESSOR, 
 WASHINGTON STATE UNIVERSITY, TESTIFYING ON BEHALF OF AMERICAN 
                       NURSES ASSOCIATION

    Ms. Treml. Thanks for having me. My name is Judy Treml. I 
am here representing myself, my husband, Scott, and my three 
daughters, Kaitlyn, Emily, and Samantha. I am also speaking on 
behalf of many other families who find themselves facing the 
same potentially life-threatening effects from exposure to 
contaminated water in northeast Wisconsin.
    I brought today--actually, I can keep this. I brought today 
some water samples--I am more of a presentation kind of 
person--for your viewing. If you look at these three bottles of 
water, two of them are polluted with E. coli, one of them is 
not. I present this to my local legislators, my State, and all 
of them would pick this bottle as the clean water. If I asked 
you to pick which bottle you think is the clean water of the 
three, which one would you pick? If you pick this one and you 
drank this water or gave it to your infant daughter, you would 
be poisoning her with E. coli. This is the new safe drinking 
water flowing into my house after the DNR made recommendations 
to the depth of my well water to be 400 feet. I would not give 
my children a bath in this water; I would not drink this water. 
This water has to be filtered with three different filtering 
systems, to the tune of about $6,000.
    Like I was saying, my six-month-old daughter was poisoned. 
We went to the doctor, we found out that in the event that this 
illness would turn bad, the outcome for her would be death. To 
me, that is unconscionable. I had a safe water test on February 
4th, 2004, and by March 2nd, in a State-run lab test I had 
measurable counts of E. coli at 2800 parts per milliliter, that 
is, 1800 parts per milliliter more than what it takes to close 
a public beach in Wisconsin and near our home.
    Right now there are no laws protecting groundwater in 
Wisconsin or anywhere. I believe it is EPA's duty to install 
new laws that protect groundwater to address groundwater 
specifically. We all need groundwater to survive. It is 
unconscionable to me, as a mother and as a taxpayer, to see all 
the laws and regulations to protect our lakes, streams, fish, 
and wildlife, and absolutely no groundwater protection to 
protect people. Does anybody here see what is wrong with this 
picture of protecting fish and not children? Not that the 
environment isn't important, but does no one here see the 
problem that I see when our Federal laws protect fish and not 
people?
    I am also appalled by my State's mismanagement of Federal 
funding for enforcing the existing clean water rule. That may 
be neither here nor there to Wisconsin or people here in 
Washington, but when parents have to call a stay-at-home mom 
from Luxemburg, Wisconsin to help remedy a polluted well that 
is sickening their children, something needs to be done and 
these parents deserve better. We all deserve better.
    What I am asking for from this Committee and from the EPA, 
this Government, essentially, is protection from groundwater 
and surface water pollution from these tolerated practices.
    I am a hobby smoker. I am not allowed to smoke this in this 
building. Why? Because this Government and our State, 
Wisconsin, impose smoking bans in public places and in 
restaurant and workplaces and in these Federal buildings. Yet, 
there are absolutely no laws to protect my groundwater from 
pollution from another source. You all have protected 
yourselves from the air pollution that secondhand smoke causes; 
yet, nobody seems to think that when somebody pollutes somebody 
else's well, that there needs to be any kind of law against 
that.
    Please give us the same protection you gave yourselves from 
the secondhand smoke and create new regulations for the large-
scale farming operations that pollute our groundwater, sicken 
our families, and kill our fish. And please don't force us to 
have to wait for the tragedy to happen as what happened with 
the E. coli contaminated spinach a few years back. People had 
to die from that before anybody really paid attention. Just as 
it would be illegal for me to light this cigarette and force 
you to breathe in my smoke, it should be just as illegal for 
someone to poison my groundwater supply.
    Thank you.
    Mr. Kagen. Thank you, Judy, for your story and thank you 
for your written testimony as well.
    We now call on Mr. Kavanaugh.
    Mr. Kavanaugh. Thank you for the opportunity for to let me 
come down and address the Committee.
    The Sandy Hook Waterman's Alliance was formed to promote 
and protect commercial fishing in Northern Monmouth County, New 
Jersey. Currently, the most successful fishery we have now are 
shell fish, mainly mercenaria mercenaria, which are hard clams. 
Unfortunately, all of our available range is pollute. All of 
the Raritan Bay, Sandy Hook Bay, Navesink and Shrewsbury Rivers 
are under some form of harvest restriction. The current harvest 
uses depuration, which is a process where they submerge clams 
for 48 hours in radiated water. Unfortunately, or fortunately, 
we have an $8 million payroll, but we lose 40 to 60 percent of 
that due to handling and regulations.
    Shell fish are a good indicator of water quality because a 
significant amount of the catch is consumed raw, which leads to 
a number of health issues if not handled correctly. An 
indicator of water quality is fecal count, measured in parts 
per million. To dip a child in a fecal count of about 100 parts 
per million is a good target. Shellfish require 15 parts per 
million to be consumed raw. Aiming for shell fish would ensure 
good swimming quality for the children.
    Our enemies in Monmouth County are runoff and poor 
sanitation management. These are the same problems that killed 
a billion dollar oyster industry around the turn of the 
century. Without an aquaculture option, prohibited by water 
quality, the industry has been downgraded to working poor 
without a social network for support.
    Our first offender that we have, Monmouth Race Track, has a 
history of 15 years of allowing horse waste to enter the 
Shrewsbury River. This summer, a plan to contain the runoff was 
suggested by the track and has a completion date of 2012. The 
reason for the length of this is construction is not to 
conflict with track operations. 2009's improvements were to put 
gutters on the horse sheds. Funding has yet to be approved for 
any of these improvements. Monmouth Track is owned and operated 
by the Sports and Exposition Authority, a.k.a., the State of 
New Jersey. The worst polluter in Monmouth County is the State 
of New Jersey.
    Our second offender is the municipality of Colts Neck. This 
municipality has single-handedly defeated efforts to fund the 
Navesink River Water Shed Project. In March of 2007, Colts 
Neck's response for not participating and killing the funds was 
that their effort to control groundwater was better than what 
the county could come up with. The only problem was the report 
that came out in February 2008, done by the State, found human 
feces in local streams of Colts Neck. What made this 
particularly upsetting was that the site was 25 yards from 
Monmouth County's drinking supply, Swimming River Reservoir. It 
seems that Colts Neck surrounds the reservoir and all of Colts 
Neck is served by septic waste systems.
    Our last offender is the borough of Red Bank. An extensive 
study was done in the same report in February of 2008 by the 
State of New Jersey because of a downgrade in water quality. 
Red Bank's ground system is a colander with human, animal, and 
multiple antibiotic sources acknowledged. Sadly, the same 
report refers to discoveries of non-point, which means no 
accountability. This discussion is made easier because all 
these documents have Lisa Jackson's name on them. She is 
intimately familiar with all the problems that we have in 
Monmouth County.
    Groundwater pollution is based on economics. It is cheaper 
not to comply and externalize the responsibility and expense 
downstream. Over the past three generations, government has 
failed to slow the assault on New Jersey's coastal resources. 
We can defend our own interests given the right tools. The 
change will be expensive, dramatic, and correct.
    I would like to leave you with two thoughts. I am running 
out of time. All the offenses fall under the shadow of the EPA. 
Every summer, the Garden State Parkway, a main artery in New 
Jersey, is locked up with families going south for the summer. 
What happens to the kids that can't get on that artery? Clean 
water is a civil right that begins with permits issued by the 
EPA.
    Secondly, a substantial amount of racketeering, fraud, and 
tax evasion is sucking the life out of my industry. My pleas to 
three governors, three attorneys general, one inspector 
general, one Federal prosecutor, and two congressman have gone 
unanswered. Is there any chance one of you gentleman could 
place a call for me for some Federal help?
    Thank you.
    Mr. Kagen. Thank you, Mr. Kavanaugh.
    The Chair recognizes now Nurse Patricia Butterfield.
    Ms. Butterfield. Thank you.
    Chairman Oberstar, Subcommittee Chair Johnson, and other 
distinguished Members of the Committee, it is a privilege to 
speak to you today on behalf of the American Nurses Association 
and the Washington State Nurses Association to discuss 
regulatory and transparency issues relating to the Clean Water 
Act.
    As you know, the ANA is the only professional organization 
representing the interests of the Nation's 2.9 million 
registered nurses. The ANA recognizes the fundamental link 
between our environment and our Nation's health, and I am 
honored to discuss that link. As a public health nurse with 
expertise in environmental health, I am here to discuss the 
research we have conducted in the low-income homes of rural 
residents from Montana and Washington State.
    As you know, the Clean Water Act addresses surface water 
and coastal areas. Surface waters can contaminate drinking 
water sources in a variety of ways, including agricultural 
runoff, combined sewage overflow, and discharge of mining and 
industrial waste. In this context, I will discuss our research.
    Our study involved collecting biological and chemical data 
from the homes of more than 400 low-income rural children. Our 
research is funded by the National Institute of Nursing 
Research at NIH. Many of the families that we study live out in 
the country not by choice, but by necessity. They seek the 
least expensive housing available, a mobile home or a cabin 
poorly equipped for Montana's cold winters.
    Although we test for many contaminants, the most common 
reason that families sign up for our study is to learn about 
their water. Families tell us they want to know about their 
water. They cannot afford testing on their own and they seem 
willing to put up with our research team in order to find the 
answers that they want. Compared with every other environmental 
issue from radon to lead, mothers consistently tell us that 
their top priority is to know about their water.
    As you can imagine, our testing yields a variety of 
results. Many families receive results that their water 
contains no contaminants above threshold levels. This is very 
good news. However, 29 percent of the homes that we test test 
positive for at least one risk; 17 percent of the homes tested 
positive for chloroforms; 3 percent for E. coli; 6 percent 
exceeded the arsenic threshold; and 3 percent exceeded the 
nitrate threshold.
    One family we worked with had E. coli in their well. In 
such cases, we typically walk the family through disinfecting 
their well by adding bleach, letting it sit, and then flushing 
the bleach from the well and plumbing. After this well had been 
disinfected, we retested it and E. coli was found again. We had 
the family repeat the process and we found E. coli a third 
time. No matter what guidance we gave the family, their well 
remained contaminated. At this point we ran out of inexpensive 
options. We recommended that the family install a UV 
disinfection system or switch the children to bottled water. 
There was simply no other low-cost or no-cost solutions that we 
could provide.
    The tests we conduct don't differentiate between point and 
non-source point pollution, but for a mother it doesn't make 
any difference. Whether surface water source is from mine 
waste, a local feed lot, or agricultural runoff, it makes 
little difference to the mother. She only knows that yesterday 
she thought that giving her child a glass of water was a 
healthy action. Today she is not so sure.
    One thing we have learned is that families want their 
government to look out for them. They want to know that surface 
water contaminants being dumped into the watershed, either 
intentionally or inadvertently, are being monitored. They want 
to know that those that are doing the dumping are being held 
accountable because when we fail to hold the polluters 
accountable, we shift the cost of healthy water from the 
polluter to the family. When a well becomes contaminated and a 
family begins to purchase bottled water, that family incurs a 
very real cost, and the families we study can ill afford such 
costs.
    The simple truth is that, despite our recommendations, the 
families who find out their water is at risk almost always turn 
to bottled water. Even when we recommend other low-tech 
solutions, families rarely have the time, money, or expertise 
to look at other alternatives. When families turn to bottled 
water, they increase their own cost, as well as the Nation's 
cumulative burden of plastic bottles.
    As a scientist, as a nurse, and as a citizen, I want to 
know that the EPA and their State designates have the resources 
to enforce the Clean Water Act. I want to know that the more 
than one million people who are immunosuppressed and at very 
real risk of dying from water-borne disease are protected. It 
is important to me to know that intentional polluters who seek 
to profit by poisoning our Nation's coastal areas are 
prosecuted to the full extent of the law, because, in the end, 
we see too many parents who believe, no matter how egregious or 
how deliberate the actions of polluters are, the voices of 
citizens will not be heard.
    I thank you for taking action that recommits our Government 
to the Clean Water Act and provides our agencies with the 
resources they need to act proactively on behalf of public 
health. Trust can be restored by committing the requisite 
resources to the protection of our surface waters. Our citizens 
and your constituents deserve nothing less. Thank you.
    Mr. Kagen. Thank you, Ms. Butterfield. Appreciate all three 
of you being here.
    I will turn to Gene Taylor and ask if you have any 
questions at this moment, Mr. Taylor.
    Mr. Taylor. No.
    Mr. Kagen. Mr. Hare?
    Mr. Hare. Thank you.
    Ms. Treml, just a couple questions. First of all, how did 
you find out this was in your--this is well water?
    Ms. Treml. Yes.
    Mr. Hare. How did you come to find out that you had E. coli 
in your well?
    Ms. Treml. On a Sunday. It was February 28th. It was a 
Sunday morning. Our neighbor came over. She lives just 
adjacent; her property adjoins the field that was spread 80,000 
gallons of liquid manure in 18 inches of snow in 40 degree 
weather. The manure was running across her front lawn. She came 
over crying because her well water was black; it looked like 
the manure that was being spread. And she was selling her home 
and you can't sell a home in Wisconsin with a faulty well.
    And my husband had been talking to the DNR up until this 
point when he was spreading the manure and it was running off, 
and they were doing nothing about it. He actually took video of 
it and DNR didn't have an interest in it. So he took the water 
and he says to her, well, I am going to take this in for you 
and certainly they will be interested in this. He did that on 
Monday and there was no interest in it; they told us to call 
someone else. One of the employees, Charles Rehoben, from the 
northeast region, actually told my husband to pick up a phone 
book and call someone else. And when my husband asked who to 
call, he said, just open it and find someone. He gave us 
nothing.
    So my husband came home from work and told me what happened 
with our neighbor's well, and I was preparing dinner that night 
and I was washing some food off and I flipped the switch of my 
kitchen faucet and out comes brown cow manure smelling water, 
literally. I turned to my husband and he said--I said you need 
to call the DNR; they need to do something about this, that is 
his manure over there. We didn't have cows. We had a septic 
system that had just human waste in it. We didn't own any cows 
that we spread manure on our fields. We live on a farm. And my 
husband, just exasperated, told me, Judy, they aren't going to 
do anything. So I ended up calling the media and the media was 
interested because you could physically see--this is our 
water--chunks of manure coming out into my kitchen sink.
    This was our water. This is what my water looked like the 
night before when I gave my daughter a bath. What I learned 
subsequently through all of the research I did when she was 
sick, my pediatrician said this was grossly contaminated with 
manure, E. coli, when I gave her a bath. I couldn't tell; it 
didn't look bad, it didn't smell bad. It looked perfectly fine. 
She was six months old. You lay a baby in the water. What do 
they do in the bath? They suck on a wash rag. That is how she 
got exposed to the contaminated water.
    Mr. Hare. Well, I have to tell you, I don't know, whatever 
it takes to get this thing fixed, we have to fix it. That is 
just absolutely----
    Ms. Treml. Sadly, this happens to about 100 families a year 
in Mr. Kagen's district. He is ground zero, where his office is 
in Brown County, Kewaunee County. There is about 100 families a 
year and, like I said, they have no one to turn to in the 
government, no one. We are in a black hole of regulation; there 
is no regulation for this kind of----
    Mr. Hare. Well, you may be in a black hole right now, but 
we are going to fix that. I mean, we have to do that. I cannot 
imagine turning on your faucet and having manure coming out. It 
is almost----
    Ms. Treml. We have tons of video if you want to see it.
    Mr. Hare. No, I will pass on the video; I will take your 
word for it. But we have to fix that.
    Doctor, you bring up a good point. When people go to 
bottled water, they have the plastic bottles, so, A, you have 
the expense of output for people who can't afford it. They 
somehow have to try to afford it. And then, ultimately, 
environmentally, we are creating an additional problem on top 
of what we already have. And these are hitting families that 
just don't have anyplace else where to go.
    Ms. Butterfield. I agree, Congressman Hare. That makes a 
lot of sense and that is what we see all the time. We work with 
families under 250 percent poverty. None of them have the 
resources to make this type of switch.
    Mr. Hare. Then, lastly, Mr. Kavanaugh, if you need somebody 
to make a phone call, I will give you my card before you leave. 
I don't know if it will----
    Mr. Kavanaugh. I am sorry, I missed that.
    Mr. Hare. I said if you need somebody to make a call--I am 
from Illinois, not New Jersey, but I still have a big mouth 
anyway, so I would be happy to make a call for you.
    Mr. Kavanaugh. I sure could use some help.
    Mr. Hare. Well, I will do the best I can.
    I just want to say to all of you I appreciate your being 
here. This is my first tour of duty on this Committee and I am 
glad I am here today. When you hear about these things, I was 
sitting here as you were testifying, just kind of shaking my 
head, trying to get my mind around what you and your family and 
your kids are doing, and this has absolutely got to get fixed, 
and it has to get fixed now. This is nothing something that can 
be delayed. So we have to move and move very quickly, and get 
it done right.
    And for those people who wouldn't pay attention to your 
husband, I think it is shameful. They have a responsibility to 
protect you and your family. So we will try to get this thing 
done quickly and get it right for you and your family. But I 
cannot believe that a family would have to put up with that.
    Thank you, Mr. Chairman.
    Mr. Kagen. Thank you for your questions, Mr. Hare. And just 
to set the record straight, the State of Wisconsin, DNR did 
what they were supposed to do in following their rules, but 
their rules weren't sufficient to cover the harm. I would quote 
one of my favorite justices of the Supreme Court, Hugo Black, 
who, during one of his rulings--it may have been a bar fight, I 
am not sure--where he said, ``Sir, your freedom to swing ends 
where the other person's chin begins.'' So when it comes to a 
source of pollution, their freedom to pollute our air, our 
water, and our soil ends where the other person's environment 
begins, be it internal or external.
    My question really has more to do with all three of you 
come from different regions of the United States and you have a 
common problem, and that problem you feel, if I hear you 
correctly, is that our groundwater needs adequate protection. 
Is that correct?
    Ms. Treml. That is correct.
    Mr. Kagen. And yet there is an economic cost to this 
because once the groundwater has become polluted, once an 
aquifer has become polluted or collapses altogether, it is 
very, very expensive, if not impossible, to bring it back to 
life, so to speak. So I would like to hear your comments first, 
Mr. Kavanaugh, about how you think you can produce cleaner, 
healthier shell fish.
    Mr. Kavanaugh. Pretty simple: you have to put some teeth in 
the watchdog. In my particular case, we already got bounced out 
of Federal court once. In additional documentation that I 
brought in as part of my testimony, you will find out that a 
very expensive study was done in Red Bank. Nowhere did they use 
the word point source. I mean, you have to give me--I will 
fight the fight. We will defend our families and our way of 
life.
    But you have to give me a law I can fight with. When I am 
getting thrown out of Federal court--and nobody in the State is 
paying any attention to me. I only have the Federal arena. And 
I am willing to go to the Federal arena. We are willing to 
defend our shores and our families, but if I have no standing 
because it is a colander and you have to say--if everything is 
leaking sewage and antibodies and you say, well, it is not a 
point source, then I have to go home.
    Mr. Kagen. Thank you, Mr. Kavanaugh.
    Ms. Butterfield, do you feel that the EPA has what it needs 
now in terms of the legislative authority to oversee and 
enforce the actions that are taking place in Washington and 
Montana?
    Ms. Butterfield. Congressman Kagen, you spoke about the 
importance of prevention and that, once water is contaminated, 
it is extremely expensive to uncontaminate that water. That is 
why enforcement and resources for enforcement are key, so that 
when I drive on a highway and I see a highway construction 
project where the sediment and fumes and diesel are 
contaminating surface waters that will affect the water systems 
of people downstream, that people know that enforcement will be 
effective.
    The second thing would be stronger connections between 
local health departments about information and public awareness 
so that people can make the connections between water 
contamination and public health as an issue, and strengthening 
that so that communities can work together. Thank you.
    Mr. Kagen. Ms. Treml, any remarks in that regard?
    Ms. Treml. The only remark I have is just a clarification 
to Ms. Jackson. There was a question posed to her, and to you 
as well, that, in our case, the Clean Water Act was clearly 
violated when the manure ran off over the neighbor's property 
and into School Creek, which is a navigable waterway, it is a 
waters of the State. Our Federal lawsuit got seated in Federal 
court in April of 2004 and it was only three months later the 
State of Wisconsin decided to file its own lawsuit for 
violations of the Clean Water Act.
    So we did have the rules in place, so to speak, to have the 
DNR and the State of Wisconsin act on our water contamination 
claim--not our private drinking water claim--but what we found 
is that the State of Wisconsin became our adversaries versus 
our allies. When we were going toe-to-toe with DNR employees in 
depositions, when they were becoming a hindrance to our case 
rather than a help, that was when we realized we had a problem 
in Wisconsin and that other families in Wisconsin had a real 
big problem.
    Mr. Kagen. Well, thank you all very much and thank you 
again for appearing before the Committee. You have the full 
support of a majority of the Members of this Committee in 
taking actions to try and prevent further point source and non-
point source pollutions. Thank you very much and you are free 
to go.
    We have three votes.
    If panel three would get mentally prepared to take your 
chairs. That would be Anu Mittal, Wade Najjum, Steven Brown, 
Tom Porta, John Rumpler, Dr. Jay Shimshack, and Eric Schaeffer.
    We will adjourn for a period of time until we vote and come 
back.
    [Recess.]
    Mr. Oberstar. [Presiding] The Committee will resume its 
sitting following the series of votes, and we will begin with 
panel three. I believe it was already--counsel, was the panel 
already called?
    Voice. No, they were not.
    Mr. Oberstar. Oh, then I call the panel. We have Ms. Anu 
Mittal. That is quite an interesting name. It is of Indian 
origin and at least your namesake----
    Ms. Mittal. Is a very rich man, yes.
    Mr. Oberstar.--bought a steel company and is building a 
plant in my district.
    Ms. Mittal. Really?
    Mr. Oberstar. Yes. They also have an iron ore mining 
operation.
    Ms. Mittal. Every one of my family members has tried to 
find some relationship with him but has not been able to.
    Mr. Oberstar. It hasn't worked yet. Oh well, thank you for 
being with us today.
    Mr. Wade Najjum of Office of Inspector General at EPA; Mr. 
R. Steven Brown, Executive Director for Environmental Council 
of the States; Tom Porta, Deputy Administrator for the Nevada 
Division of Environmental Protection for ASIWPCA; Mr. John 
Rumpler, Senior Attorney for Environment America; Dr. Jay 
Shimshack, Assistant Professor of Economics at Tulane and 
Visiting Scholar at Erb Institute for the University of 
Michigan; and Mr. Eric Schaeffer, Executive Director for the 
Environmental Integrity Project.
    Welcome. Ms. Mittal, we will begin with you. Put your 
microphone on so we can hear every word of wisdom.

 TESTIMONY OF ANU K. MITTAL, DIRECTOR, NATIONAL RESOURCES AND 
  ENVIRONMENT TEAM, GOVERNMENT ACCOUNTABILITY OFFICE; WADE T. 
   NAJJUM, ASSISTANT INSPECTOR GENERAL, OFFICE OF INSPECTOR 
  GENERAL, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; R. 
STEVEN BROWN, EXECUTIVE DIRECTOR, ENVIRONMENTAL COUNCIL OF THE 
  STATES; TOM PORTA, DEPUTY ADMINISTRATOR, NEVADA DIVISION OF 
 ENVIRONMENTAL PROTECTION, TESTIFYING ON BEHALF OF ASSOCIATION 
OF STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS; 
JOHN RUMPLER, SENIOR ATTORNEY, ENVIRONMENT AMERICA; DR. JAY P. 
SHIMSHACK, ASSISTANT PROFESSOR OF ECONOMICS, TULANE UNIVERSITY, 
 AND VISITING SCHOLAR, ERB INSTITUTE, UNIVERSITY OF MICHIGAN; 
AND ERIC SCHAEFFER, EXECUTIVE DIRECTOR, ENVIRONMENTAL INTEGRITY 
                            PROJECT

    Ms. Mittal. Thank you, Mr. Chairman and Members of the 
Committee. We are pleased to be here today to participate in 
your hearing on the 37th anniversary of the Clean Water Act.
    Since the Act was passed, GAO has been asked by Congress 
several times to monitor EPA's enforcement efforts under the 
Act, and my testimony today is based on several reports that we 
completed in the last nine years which highlight some 
longstanding issues with EPA's efforts. These include 
inconsistencies in regional enforcement activities, the impact 
of inadequate resource and workforce planning, efforts to 
improve national priority planning and oversight of State 
programs, and limitations in some measures of program 
effectiveness.
    With regard to inconsistencies in EPA's enforcement 
programs, while we recognize that some variation is necessary 
to take into account local conditions and concerns, core 
enforcement requirements must be consistently implemented and 
similar violations should be met with similar enforcement 
responses.
    However, in 2000, we found significant variations in the 
regions and this had led to inconsistent enforcement and more 
in-depth reviews in some regions than in others. Variations 
that we identified included inspection coverage, the number and 
type of actions taken, the size of the penalties assessed, and 
the criteria used to determine penalties. Several factors 
contributed to these variations, including differences in State 
laws and authorities, variations in resources, and incomplete 
and inadequate enforcement data.
    In 2007, when we again examined EPA's oversight of State 
programs, we found that by implementing the State review 
framework EPA had, for the first time, the potential of 
providing consistent oversight of the State programs. By using 
this framework, EPA had identified several weaknesses in the 
State programs that were consistent with our findings of 2000, 
but we concluded that until EPA addressed these weaknesses and 
their root causes, it would not be able to determine whether 
the States were performing timely and appropriate enforcement, 
and whether penalties were being applied fairly and 
consistently.
    With regard to the adequacy of enforcement resources, our 
past work has recognized that EPA's and the State's 
responsibilities and workload under the Clean Water Act have 
increased significantly and that EPA's work has shifted from 
direct implementation to oversight of State programs. Our work 
has also shown that while overall funding for enforcement has 
increased, these increases have not kept pace with inflation or 
growth in responsibilities.
    In this environment of constrained resources, what is more 
troubling is that EPA continues to lack a systematic data-
driven process for budgeting and allocating resources. We have 
repeatedly found that EPA makes incremental adjustments and 
relies on historical precedent when making resource 
allocations, instead of using a bottom-up data-driven approach. 
The most significant obstacle to comprehensive reform in this 
area is the agency's lack of complete and reliable workload 
data. As long as EPA lacks these data, it will be hampered in 
its ability to target limited resources to the areas of 
greatest risk.
    In contrast, we have found that EPA has made substantial 
progress in improving priority setting and enforcement planning 
with the States. Specifically, EPA's partnership system for 
those States that demonstrate strong environmental performance 
has provided States with greater flexibility and autonomy in 
planning and operating their programs. This partnership system 
has fostered a more cooperative relationship with the States 
and has helped with joint planning and resource allocation.
    Finally, in 2008, we reviewed three key measures that EPA 
uses to assess and report on the effectiveness of its 
enforcement programs. Specifically, we reviewed EPA's measures 
for assessed penalties, injunctive relief, and pollution 
reduction. Our review found a number of shortcomings in how EPA 
calculates and reports information on these measures, which may 
result in an inaccurate assessment of the program.
    In conclusion, over the past decade, we have identified and 
recommended a number of actions that EPA can take to strengthen 
its enforcement program under the Clean Water Act. However, 
EPA's implementation of our recommendations has been uneven 
and, as a result, many of the issues that we have identified in 
the past remain unaddressed even today. We continue to believe 
that the agency needs comprehensive, accurate, and reliable 
data; better resource allocation processes; and accurate 
performance measures to help ensure that it is implementing the 
Clean Water Act consistently across the Country and that like 
violations are being addressed in the same manner.
    Mr. Chairman, this concludes my prepared statement. I would 
be happy to respond to any questions.
    Mr. Oberstar. Thank you very much for your testimony and 
for the splendid work that GAO did on its evaluation of the 
Clean Water Act enforcement.
    Now, Mr. Najjum.
    Mr. Najjum. Thank you, Mr. Chairman. Good afternoon, Mr. 
Chairman. I am pleased to be here today marking the 37th 
anniversary of the Clean Water Act to talk about the OIG's work 
that bears on EPA's ability to manage, oversee, and enforce 
environmental laws, including clean water.
    Over the years, the OIG has issued many reports that 
pertain to aspects of the Clean Water Act, ranging from EPA's 
oversight of major facilities and long-term significant 
noncompliance, efforts to clean up the Chesapeake Bay and the 
Great Lakes, and delays in establishing water quality standards 
for nutrients. We are currently processing a report that will 
be released in the coming days on Wetlands Section 404 
enforcement. In these individual reports, we identified 
problems and made recommendations for corrective actions 
specific to the scopes of those reviews. Many of these reports 
are summarized in my full statement. While the Agency does not 
always agree with our assessments, we believe we have a good 
working relationship and that good faith efforts are made to 
resolve and correct the issues we report.
    We also have a significant body of work addressing 
enforcement and enforcement-related issues in other programs at 
EPA. For example, we just issued a report on high priority 
violations, a Clean Air Act enforcement process that is 
comparable to significant noncompliance of the Clean Water Act. 
Our work includes evaluating the process or basis for 
establishing the standards for enforcement. We have also 
evaluated aspects of the overall management of enforcement, 
like our report on EPA's Office of Enforcement and Compliance 
Assurance strategic planning for priority enforcement areas.
    I mention these other areas because we believe that there 
are common roots to many of the problems we identify in each of 
the media. We believe that some of the roots of these issues 
are beyond the Agency's ability to fix without assistance. We 
call these management challenges. We define management 
challenges as a lack of capability derived from internal, self-
imposed constraints or, more likely, externally imposed 
constraints that prevent an organization from reacting 
effectively to a changing environment. Each year we update and 
revise our list. For fiscal year 2009, we have ten.
    I would like to talk about one management challenge in 
particular that we believe directly impacts EPA's effectiveness 
regardless of the media or statute organization and 
infrastructure. Many of the other challenges also impact Clean 
Water Act enforcement, but organization is the major common 
denominator. We have repeatedly reported that EPA regions do 
not ensure consistent enforcement of environmental laws. The 
usual causes addressed are related to a lack of national 
guidance establishing an EPA position, lack of national 
oversight over the regions, and a lack of regional oversight 
over delegations to the States. Also, inconsistent data 
collected from the States and others as interpreted by ten 
regions adds to the problem. The OIG addresses these issues 
within the scope of our work, but underlying the Agency's 
problems is an organization not designed to do its mission.
    The Agency's current strategic plan calls for having the 
right people in the right place at the right time. However, 
since EPA's formation in 1970, a comprehensive study has not 
been completed to analyze EPA's mission, organization, and the 
related number and location of employees needed to most 
effectively carry out EPA's mission at least cost. This affects 
all functions, not just clean water.
    To quote from the 1970 memo creating an organization for 
environmental protection: ``The functions assigned to EPA are 
not the only determinants of its effectiveness. Performance 
will be helped or hindered by the way the programs and 
functions which make up the EPA are structured within the new 
organization.'' We also note that it specifically rejected 
trying to achieve EPA's objectives by organizing around media 
such as air, water, and land. According to EPA's history, there 
was a three-phased plan to streamline and consolidate 
functionally for efficiency. The Agency never implemented the 
third phase, which would have eliminated the media-oriented 
program offices altogether.
    In 1995, the House and Senate Appropriations Committees 
commissioned the National Academy of Public Administration to 
assess EPA's efforts in setting environmental priorities and 
allocating resources. In part, NAPA recommended the following: 
``The environmental control efforts should be integrated. In 
consultation with Congress, and as part of the process of 
integrating environmental statutes, the agency should begin 
work on a reorganization plan that would break down the 
internal walls between the agency's major `media' program 
offices for air, water, waste, and toxic substances.'' That did 
not happen.
    In our opinion, many of the problems we see that impact the 
efficiency and effectiveness of Agency operations have their 
roots in EPA's organization. We believe that the protection of 
the Nation's waters can be improved by an EPA that is 
strategically aligned to consistently enforce environmental 
statutes and provide oversight over the State delegations. This 
is not an original issue. The challenge is not to evaluate 
whether the task is needed or what the design would be; the 
challenge is to actually get it done.
    This concludes my prepared remarks. I would gladly answer 
any questions the Committee may have.
    Mr. Oberstar. Thank you very much, Mr. Najjum. Appreciate 
your testimony.
    Mr. Brown.
    Mr. Brown. Thank you, Mr. Chairman and Members of the 
Committee. First, ECOS's president, Mike Linder of Nebraska, 
couldn't be here today because his State is having a special 
session of the legislature to deal with tax revenue shortages, 
which is, I am sorry to say, an all too familiar story around 
the Country that I hear from my members. Mike and Administrator 
Jackson shared leadership of the ECOS Compliance Committee only 
last year, and he very much wanted to be here and sends his 
apologies for not being able to.
    The Committee is interested in what we can do to improve 
enforcement in the Clean Water Act. We very much share that 
desire and we look forward to the rest of the testimony that 
will be given here today.
    One of the things that I hope you understand is that States 
do conduct 95 percent of the enforcement that is conducted 
between us and EPA. It is not a qualitative statement, it is a 
quantitative statement. But we are now living in an era not of 
doing more with less, but of doing less with less.
    There are three main points I want to make to you today, 
and that is, one, both the States and EPA have a role in 
enforcement, and we must work cooperatively if we are both 
going to succeed, and that is something that we very much want 
to do. Secondly, that States are committed to achieving full 
compliance for all regulated sources and keeping them in 
compliance, and we will use the full spectrum of environmental 
enforcement tools to do that. And the third point is that State 
enforcement is under duress due to reductions in funding from 
both Federal and State sources.
    ECOS understands that EPA's Clean Water Act enforcement 
action plan, which was just released today--we haven't had a 
chance to study it, but it contemplates using regional and 
State staff work-sharing to utilize resources efficiently and 
maybe to ask States to certify data that goes to EPA. We think 
these are positive direction steps. We hope to work with EPA as 
we jointly implement that enforcement plan, and we anticipate 
doing that with them.
    From a State perspective, returning a facility to 
compliance to achieve clean water goals is our top priority. 
Enforcement occurs when compliance does not. But enforcement 
has many faces. For routine non-compliances, if there is such a 
thing--and we believe there is--States will often undertake so-
called informal enforcement actions.
    Having done these myself, I assure you that most facilities 
do not consider them informal. Such actions may include oral 
and written warnings and voluntary compliance agreements, and 
the important thing about them is they return the facility to 
compliance quickly about 80 percent of the time. Such actions 
also cost the State agencies less than the so-called formal 
enforcement actions, which States also regularly use.
    Formal actions are, however, what EPA measures. This is 
part of the reason that State and EPA compliance data sometimes 
don't match, because if a State completes an informal action 
and returns a facility to compliance, but EPA was under the 
impression that a formal action was needed, it will still show 
that a formal action was never taken, even though the facility 
is actually in compliance.
    To the funding issue. State enforcement implementation is 
under duress for two reasons: because of the budget deficits 
that are occurring in 48 of the 50 States and in the 
territories, and because of lackluster Federal support. States 
are imposing hiring freezes, they are furloughing employees, 
and they are reducing enforcement staff.
    In the period 2001 to 2009, inflation ran at about 24 
percent, but the increase in EPA's operational grants to States 
only rose 11 percent. Federal support for State environmental 
agencies increased to an all-time high in 2009 thanks to ARRA, 
and we should see many compliance improvements over the next 
few years at municipal sources because of that. However, this 
increase did not extend to the operational funds that States 
use to implement the Act, including enforcement, and States 
receive no Federal grants that are dedicated to enforcement.
    Furthermore, during this period of 2001 to 2009, EPA issued 
hundreds of new rules which the States are expected to 
implement and which we are eager to implement. EPA has 
estimated--and you have heard this testimony earlier today--
that as many as one million new sources will be regulated by 
the Clean Water Act. For example, over 60,000 vessels were 
added to the list of regulated facilities this year alone. New 
sources means more enforcement responsibilities under the Act.
    Finally, I agree with the Administrator that continuing 
uncertainty in the Clean Water Act due to several court cases 
has increased the difficulty in ascertaining jurisdictional 
authority over some polluters. ECOS has recommended steps to 
Congress to address this issue and worked with this Committee, 
and we continue to believe this is needed.
    I would be happy to take questions.
    Mr. Oberstar. Thank you very much. Very overall 
comprehensive review of matters.
    Mr. Porta.
    Mr. Porta. Good afternoon now, Mr. Chairman and Members of 
the Committee. My name is Tom Porta. I am the Deputy 
Administrator for the Nevada Division of Environmental 
Protection and the current President of the Association of 
State and Interstate Water Pollution Control Administrators, or 
ASIWPCA, as we are known.
    I have been working in the State environmental quality 
programs for over 25 years. The members of my association 
appreciate the opportunity to provide testimony before you 
today regarding States' administration of the Clean Water Act, 
particularly in the arenas of discharge, permit compliance, and 
enforcement. By far, the States and interstates do the lion's 
share of work in protecting and improving the quality of our 
Nation's waters.
    Our message to you today is that States are doing a good 
job enforcing the provisions of the Clean Water Act and should 
be commended, given the many constraints they work under.
    Recent headlines and news stories have highlighted 
potential Clean Water Act violations that have gone unchecked 
or unreported. While these situations warrant further 
investigation, they represent a small part of the compliance 
picture. It is important to consider other factors, including 
the total number of parameters permit holders are required to 
meet and report.
    In the short time we had to prepare for this hearing, we 
evaluated enforcement data from a handful of States. 
Additionally, we looked at effluent limit violations versus 
reporting violations. From the information compiled, the data 
shows compliance rates in excess of 99 percent when it comes to 
effluent violations and in excess of 95 percent when it comes 
to reporting violations. While this was only a sampling of 
States, I believe it is representative.
    That is not to say that all aspects of State compliance and 
enforcement programs are perfect. As with any environmental 
program, improvements can always be made.
    Administrator Jackson announced earlier this year her 
intent to improve on the Clean Water Act enforcement and 
compliance programs, and you heard her roll-out of the 90-day 
action plan this morning. ASIWPCA agrees that improvements 
should be made, and we have offered to closely work with EPA as 
co-regulators to make this initiative work, with the caveat 
that the expectations must be reasonable and will focus on 
adding value to our enforcement and compliance programs.
    So what should be done to enhance our States' efforts and 
provide for effective State enforcement and compliance 
programs? We believe there are five elements to effective 
program, and they include the following: first, identify the 
problems before they become violations through technical and 
compliance assistance. EPA must rethink the value placed on 
compliance assistance as the current oversight framework is 
primarily focused on enforcement. Enforcement is necessary and 
has its place, but is not the sole measure of success for the 
water programs.
    Second, water quality violations are top priority. Paint an 
accurate picture of enforcement by redefining what truly is 
significant noncompliance. The current definition is too broad 
and includes minor paperwork in reporting violations that do 
not impact water quality. While minor violations are important, 
separating out these types of infractions would show a true 
depiction of enforcement actions that impact water quality.
    Third, when appropriate, resolve violations quickly through 
non-formal enforcement actions. A wide variety of 
administrative tools exist, from warning letters to consent 
decrees. These approaches often result in prompt compliance and 
more effectively use staff resources.
    Fourth, take enforcement actions when necessary. The 
authority to issue formal actions and assess penalties is 
provided in Federal and State statutes, as well as regulations. 
Formal enforcement actions should be reserved for cases 
involving illicit dischargers, recalcitrant behavior, and other 
significant violations.
    And fifth and finally, track enforcement and compliance 
with reasonable data systems. We can achieve greater levels of 
information accuracy and transparency with the use of 
electronic reporting and strategic data integration across 
States. This would be a significant benefit to States and EPA, 
given the ever-increasing number of new sources.
    However, disincentives prevent full participation by the 
regulated community. As an example, the requirements for 
authenticating signatures for electronic filing are so onerous 
it is easier for permittees to submit their information by 
regular mail. The public should be able to easily obtain this 
information through a simple, accurate, and accessible 
database. Please note that enforcement information has always 
been available to the public through State records and 
databases, but the data has rarely been complete or accurate 
through Federal data systems.
    I have provided you with a few examples of problem areas in 
the Clean Water Act enforcement programs and suggestions for 
addressing these issues. In closing, ASIWPCA and its members 
look forward to working with Administrator Jackson and her 
staff to develop reasonable and sustainable measures to improve 
upon the success of compliance and enforcement programs.
    Thank you. That concludes my testimony.
    Mr. Oberstar. Thank you, Mr. Porta. Appreciate your 
participation and the information you have submitted.
    Mr. Rumpler.
    Mr. Rumpler. Chairman Oberstar, Members of the Committee, 
good afternoon. My name is John Rumpler, Senior Attorney with 
Environment America. We are a federation of 27 State-based 
citizen supported environmental advocacy organizations, and in 
my role as senior attorney I coordinate our clean water 
advocacy work from Puget Sound to the Great Lakes to the 
Chesapeake Bay. Just as the previous two speakers have talked 
about, the great deal of our work is at the State level.
    And while we don't exclusively focus on enforcement, we 
have worked on reducing the use of toxic chemicals, we have 
worked on runoff pollution, and a number of things. We have 
also been deeply involved directly in clean water enforcement. 
Most specifically, we have prevailed in 99 citizen suits to 
compel violators of Clean Water Act permits to curb their 
pollution and come in compliance with the law for our rivers, 
lakes, and streams.
    More systematically, we have done an overview of compliance 
of major facilities with their NPDES permits. I am afraid that 
our results paint a little bit of a different picture than Mr. 
Porta just represented. Now I want to note for the record that 
we were not talking about any paperwork violations. We were not 
talking about minor violations. We were talking about 
discharges of pollution in excess of limits set to protect 
water quality.
    Here is what we found in the year of 2005, and we had 
similar results in previous years when we did this assessment. 
Number one, the problem is widespread. Fifty-seven percent of 
major facilities violated at least one discharge limit that 
year. Overall, those facilities had 24,000 discharge 
exceedances, again exceeding limits to protect public health 
and the environment.
    Nor were these minor. Of these 24,000 violations of these 
permit limits, they averaged nearly four times the amount of 
pollution allowed under law. In many cases these were chronic 
repeat offenders. More than 600 of these facilities reported 
effluent violations again and again and again just in the year 
of 2005 alone.
    Indeed, the best indicator of whether we, America, the 
States, EPA, all of us, are doing a good job with the Clean 
Water Act is whether our rivers, lakes, and streams are clean. 
Unfortunately, with so many polluters dumping so much pollution 
from direct sources into those waterways, it is not surprising 
to us that nearly half of our rivers and streams are not safe 
for fishing, drinking, or other uses. That is a fundamental 
problem.
    We offer the following solutions: We believe we need 
tougher enforcement, more resources, and to restore the 
protection of the Clean Water Act to all of America's 
waterways.
    Tougher enforcement, it is time to put the environmental 
cop back on the beat. While there is some value to informal 
measures from time to time, the practical reality of the matter 
is that deterrence demands that penalties are certain, swift, 
and severe enough to ensure that pollution no longer pays.
    Moreover, we need to make sure that the underlying permits 
themselves are strong enough to protect water quality. The 
original Clean Water Act envisioned an end of direct discharges 
by 1985. We are nowhere near that. States are not 
systematically reviewing the permits and ratcheting down the 
permit levels. We need to toughen the permits to get to clean 
water.
    Now, all of this takes resources. I couldn't agree more 
that our State agencies and EPA--all of us--need more resources 
to be able to do this job well. Possibly we should consider a 
mandatory permit fee scheme, which I think some of my 
colleagues can speak more specifically to.
    But in addition to money for enforcement agencies, we also 
need money for infrastructure. I want to applaud Congress and 
the Obama Administration for the $4 billion in Clean Water 
infrastructure money in the stimulus package. But we need to 
build on that if we are ever going to end sewage overflows.
    Finally, I would be remiss if I did not note to this 
Committee the need to make sure that all of our waterways are 
protected. There are many problems and challenges that we have 
here today but that is one that this Committee has the power to 
directly solve.
    I thank you for your time. Let me make one final note, Mr. 
Chairman. Next Thursday, a week from today, we will be 
releasing a new report documenting the millions of gallons of 
toxic chemicals discharged into our waterways using TRI data.
    Thank you.
    Mr. Oberstar. We will certainly look forward to that 
report. Thank you for your testimony and your stout defense of 
clean water.
    Now, Mr. Shimshack?
    Mr. Shimshack. Mr. Chairman and distinguished Members of 
the Committee, thank you for the invitation to speak today. 
While there are many facets of water quality management, I will 
focus my remarks on understanding and strengthening the 
performance of Clean Water Act monitoring and enforcement from 
an independent research perspective.
    To fully appreciate the issues, it is useful to first 
provide some context. The first thing to note is that broadly 
characterizing Clean Water Act performance is challenging. 
Aggregate snapshots of Clean Water Act compliance are highly 
sensitive to the chosen measurement instrument. Some reasonable 
metrics suggest very high compliance while other reasonable 
metrics simultaneously suggest low compliance. This may explain 
some of the differences in opinion here today.
    Second, regardless of how one defines noncompliance, 
enforcement activity is infrequent compared to the number of 
violations. Third, monetary penalties are especially rare and 
levied fines tend to be extremely modest relative to fines 
allowable under the law. Fourth, on average, enforcement 
activity is declining over time.
    Despite the relative scarcity of enforcement, a growing 
academic and policy literature shows that State and Federal 
Clean Water Act monitoring and enforcement actions, when 
actually used, are highly effective. The research evidence 
suggests that Clean Water Act inspections and sanctions 
generate substantial specific deterrence, meaning that 
inspections and enforcement actions consistently reduce future 
violations at the evaluated or sanctioned facility. Formal 
Clean Water enforcement actions and especially fines also 
generate substantial general deterrence. Here, sanctions spill 
over to deter violations at facilities beyond the sanctioned 
entity. The essential intuition is that an enforcement action 
at one facility enhances the regulator's reputation for 
toughness across all facilities in the same State and sector.
    The evidence also suggests, perhaps surprisingly, that 
Clean Water Act enforcement actions not only meaningfully 
affect compliance but they meaningfully affect pollution 
discharges as well. When inspections and fines are deter 
violations, pollution is of course reduced. However, 
enforcement also encourages beyond compliance behavior. 
Facilities with discharges that are typically below their 
legally permitted levels often reduce discharges further when 
the regulatory threat increases. Also, likely non-compliant 
facilities often respond to increased regulatory threats by 
reducing discharges beyond those required simply to meet 
statutory limits.
    To reiterate, the published evidence suggests that Clean 
Water Act monitoring and enforcement actions, when used, 
importantly influence both compliance and pollution. Several 
implications follow.
    First, a substantial improvement in environmental 
performance may be achieved with a modest additional investment 
in traditional monitoring and enforcement activity. The speed 
and strength of observed pollution responses to relatively 
small changes in the likelihood of enforcement suggests that 
regulated entities can increase their current environmental 
performance without incurring large capital costs such as those 
required by installing new equipment.
    Second, a substantial improvement in environmental 
performance may be achieved with a modest additional investment 
in enforcement stringency. The evidence suggests, perhaps not 
surprisingly, that more stringent penalties deter more 
violations and reduce more pollution. The research evidence on 
informal actions, in contrast, is quite mixed. A reallocation 
of discretionary enforcement resources towards more rigorous 
sanctions may enhance performance.
    Third, improving the performance of the Clean Water Act may 
not require sweeping changes. Policy observers increasingly 
advocate for voluntary, cooperative, informational, or other 
alternative approaches to water pollution management. The 
published evidence on the effectiveness of these approaches is 
mixed.
    In contrast, the evidence for important deterrence effects 
from traditional enforcement is quite strong. In my opinion, 
greater and more nuanced use of our current tools will have 
predictable and meaningful results for environmental quality. 
The potential impacts of more radical changes are poorly 
understood.
    Fourth, environmental regulators should consider more 
vigorously publicizing their enforcement actions. Spillover 
effects of sanctions on non-sanctioned facilities require that 
companies know about monitoring and enforcement actions at 
other companies. State and EPA authorities should consider 
pilot programs that publicize sector-specific enforcement 
details.
    Finally, Congress, EPA, and the States should facilitate 
more research on environmental enforcement and compliance 
through enhanced research funding and improved data access.
    Mr. Chairman and Committee Members, it is an honor to be 
here today. Thank you for the opportunity.
    Mr. Oberstar. We are glad to have you. Thank you.
    Mr. Schaeffer?
    Mr. Schaeffer. Thank you, Mr. Chairman and Members of the 
Committee, for the opportunity to testify today. I am Eric 
Schaeffer, Director of the Environmental Integrity Project. We 
are a nonprofit organization that advocates for more effective 
enforcement of Federal law. Formerly I worked in the 
enforcement program at EPA.
    First and foremost, let me thank you for holding this 
hearing. I think, and many others think, that the Clean Water 
Act is one of the best things Congress ever did. But as you 
have heard today and as you have said yourselves, we have a lot 
of work left to do. The law's implementation needs your 
attention. So your oversight is very, very welcome and I think 
it will do a lot of good.
    As we have already heard, State agencies do bear most of 
the responsibility for writing and enforcing Clean Water Act 
permits under grants of authority from EPA. It is just a fact 
that some States do a reasonably good job carrying out those 
responsibilities while others have not. The Agency has got to 
step up oversight of State agencies where the States are either 
not able or willing to do the job. That is the only way we are 
going to make sure that all citizens have access to clean 
water, and that we get the level playing field that the law is 
actually supposed to provide.
    This is difficult, grinding work. We certainly need EPA to 
work in partnership with the States and give them assistance 
where they need it. But there are times when EPA has to say 
that what we are seeing from this particular agency on this 
issue is not good enough. That is just very difficult to do.
    EPA has to methodically look at permits, and sometimes 
object to bad permits. It certainly needs to be ready to take 
enforcement action where the States aren't doing it, or won't 
do it.
    We also need regular program reviews to see how not only 
State agencies are doing, but how EPA regional offices are 
doing. Perhaps that function ought to be set up and 
standardized at the Inspector General's Office so that you can 
get the kind of arm's length audit of the program to decide 
whether things are going in the right direction.
    Now, I agree with what we have heard from Mr. Brown. It is 
very difficult, impossible really, for States to run a complex 
Federal program like the Clean Water Act without adequate 
resources. States are badly under-funded. You spoke earlier, 
Mr. Chairman, and other Members of the Committee did as well, 
about stepping up public financing of wastewater treatment 
plants. That is critical, and I hope you are successful in that 
effort. But we also need to find a way to pay for the State 
agencies' staff that do the hard work of reading the permits, 
writing the permits, dealing with public comments, and carrying 
out the enforcement actions.
    Under the Clean Air Act, the Congress requires States to 
assess emission fees that are actually adequate to cover State 
program costs. That is a requirement in Federal law. It has 
worked pretty well. State air programs, while there is never 
quite enough money, are largely self-financed now through those 
emission fees. Perhaps you could consider the same thing under 
the Clean Water Act. That would be a Federal mandate to assess 
fees on the big dischargers that are high enough to pay for 
program costs.
    I will put in a plug for electronic data. I agree with Mr. 
Porta that we are in the electronic age. Information about 
violations and about discharges ought to be readily available 
on EPA's website and on State websites. EPA has tried to make 
this happen through the ECHO database. I should say that this 
was an initiative started under the Clinton Administration but 
strongly supported under the Bush Administration, to its 
credit, so it has a bipartisan track record. Certainly it can 
be improved. EPA will need State cooperation. Some data is not 
entered that ought to be into that national database. We need 
to get States to do that.
    I think the last point I will try to make quickly is that 
it is good, with all the complexities about trying to measure 
compliance and how we are doing, to just remember the first 
principles that ought to really underlie any law but are 
certainly true of the Clean Water Act: Polluters ought to pay 
for their violations. The more you pollute, the more you should 
have to pay.
    I have attached at the back of my testimony an example of 
effluent discharges at major power plants. As you can see, 
these are companies that are regularly reporting that they 
exceed their permit limits by a factor of 20 or 30 times. In 
other words, their discharges are 20, 30, 40 times what the 
permits actually allow. By all means, let us not waste our time 
with minor paperwork. There are plenty of large polluters that 
I think today are going unpunished. Basically, there is not 
really much of an enforcement response.
    I have taken this data from EPA's website. If it is 
correct, I would encourage you to follow up and ask EPA and the 
State agencies where these plants are located what they plan to 
do about these facilities. What is the enforcement status? Has 
anyone issued a notice of violation? How much are they going to 
pay? There are many other examples in the database that you 
could use. Focus on the illegal discharges, as everybody I 
think here has suggested, and I think you will find plenty of 
work to do.
    Thank you very much for the opportunity to testify.
    Mr. Oberstar. Thank you, Mr. Schaeffer. I appreciate your 
testimony as well.
    All witnesses have covered a wide range of issues of 
importance in this review of the EPA enforcement program.
    The law seems clear that economic benefit from a violation 
of the Clean Water Act should be recaptured in the enforcement 
both--I said this at the outset--to reduce the incentive or the 
temptation to pollute but also as a deterrence. How do you 
calculate economic benefits? Can the GAO do an assessment of 
that issue? Is this being done? Is that aspect of the Act being 
carried out?
    Ms. Mittal. We didn't actually do an assessment of how the 
penalties are being calculated. What we did find is that it is 
a very subjective process and different States do it 
differently. Some States have the authority to assess the 
economic benefit, some States do not. So what we found are huge 
variations in how the States were actually making the 
calculations of the penalty.
    Mr. Oberstar. Do others have a comment on that issue? Mr. 
Porta?
    Mr. Porta. Yes. EPA has what they call the BEN Model. It is 
an economic benefit model. In our State when we have run the 
model or tried to get the data to run the model, it comes up 
with a number that is fairly exorbitant for the smallest 
violation, in the six and seven figure range. So there is the 
tool out there but I would think the tool would need to be 
refined.
    To gather the data to determine economic benefit from a 
company, it is not easy. It is not an easy task to try to find 
out through tax records or what have you what their actual 
economic benefit was by going over the limit.
    So it is not an easy task to do but there is a tool that 
EPA has. I think it definitely needs refinement.
    Mr. Oberstar. This notion of benefits and costs runs 
through a number of programs under the jurisdiction of this 
Committee, including that of the Corps of Engineers and also 
the Federal Transit Agency. In the previous Administration, 
they used benefits analysis to deny projects or slow down 
transit projects by including some costs and excluding other 
benefits.
    I think what GAO is saying is that there is an 
inconsistency. In fact, the thrust of your testimony is that 
the whole management of the EPA program is shot through with 
inconsistencies.
    Ms. Mittal. That is correct. We believe that there is a lot 
of inconsistency in how the whole enforcement program is being 
managed by EPA.
    One of the biggest concerns we have is that they do not 
have the data that they need to find out what is causing these 
inconsistencies. Are these inconsistencies bad, are they okay? 
Is it all right for the States to continue to have inconsistent 
enforcement of the Act?
    We don't think inconsistency is a good thing. We believe 
that EPA should have some fundamental, basic principles to 
ensure that all State programs will provide a certain minimum 
level of enforcement. But right now they don't have the data to 
find out what is causing all of these variations in the State 
programs.
    Mr. Oberstar. I just made note of the various kinds of 
inconsistencies. You said the enforcement varies on inspection 
for facilities. Penalties vary by region. There is varied 
enforcement by region. There are different strategies for 
oversight by region. There are differences in State laws. That 
is something that EPA should work to develop consistency in, 
though not totally because water situations differ from place 
to place. Funding by EPA regions varies. Data on enforcement is 
incomplete and inadequate. That is a sorry state of affairs at 
EPA and one that leads to discrediting the program.
    Ms. Mittal. Well, we are very concerned about it, sir. The 
variations are in and of themselves not bad. That is what we 
try to emphasize. Sometimes you need to have variations because 
you have got local conditions, you have got local concerns. You 
have got to have a program that is flexible enough to address 
all of these concerns. The problem is when we look behind those 
variations.
    EPA could not provide us good information on what was 
causing those variations. We had to do that analysis ourselves. 
When we look at what causes those variations, that is what 
leads to inconsistency. We believe that inconsistency is bad.
    Mr. Oberstar. One of the thrusts of the Clean Water Act--we 
will go back to 1971 and 1972 when we were shaping the bill in 
this very Committee room and then the House-Senate conference--
was that a whole range of industries, the chemical industries, 
manufacturing of various kinds, and processing, supported the 
notion of the Clean Water Act because they wanted consistency 
among the States. They did not want to have runaway pollution-
friendly States where their competitors could seek comfort 
while they were locked in a State that has high standards and 
couldn't go to another one that has low standards or no 
standards. That was the thrust of the conferees, both House and 
Senate, establishing consistency. Now you are saying that 
consistency has deteriorated.
    Mr. Brown?
    Mr. Brown. ECOS also had a concern about the consistency 
back in 2005 when we proposed the State Review Framework to 
EPA. I think it is probably fair to say that it is no longer in 
development, but we are in the process now of doing the second 
tier of those. The first tier clearly was a learning experience 
for everyone involved. But it was because States were concerned 
about some of the inconsistencies that Ms. Mittal mentioned. So 
we agree, they need to be reconciled. We are hoping the other 
SRF, as we call it, the State Review Framework for enforcement, 
will help reveal those and eliminate them.
    Mr. Oberstar. Mr. Najjum?
    Mr. Najjum. Thank you, Mr. Chairman. We agree with a lot of 
what GAO has found in terms of inconsistency in policy across 
the regions. It is one of the things that we note constantly 
when we are looking at a national program and go out to see how 
it is being enforced and what is actually happening.
    We find that it is more of a symptom. The symptom is a lack 
of a national concept of what it is that EPA would like the 
regions to do. When they talk about flexibility, we find often 
that the flexibility is that there aren't really any rules. You 
are leaving it up to each of the regions to independently 
determine how they will actually enforce. When you have ten 
regions determining how they will enforce, recognizing that 
sometimes you do need to have some local thoughts in there, you 
really have a mishmash of enforcement sometimes. The 
flexibility reaches a point where it can become chaos.
    Mr. Oberstar. Thank you very much.
    I yield now to Mr. Boozman.
    Mr. Boozman. Thank you, Mr. Chairman. It sounds like we all 
agree, then, that we need much better data coming from EPA so 
we can evaluate what the problems actually are.
    I think you all found that there is inconsistency in 
enforcement. Yet, as was stated, sometimes there is a reason. 
Individual locations vary so there is going to be some 
inconsistency. But when you go back to the reason for that, the 
logic ought to be the same in every place. We can agree on 
that. The enforcement piece, that we have more consistent 
enforcement throughout the regions, I think we can agree on 
that.
    The other thing that I see is that there is inconsistent 
logic and inconsistent science behind some of the enforcement. 
Instead of things that are reasonable or that can be done where 
it is manageable from an expense standpoint, sometimes we get 
into such stringent enforcement. You can do a tremendous amount 
of good by enforcing in some manner. Then you get down and you 
get way below that and the cost becomes just so expensive that 
it becomes a real problem.
    I was visiting with the Chairman as we were sitting here 
earlier. I am here at all these hearings. I know all about the 
Chesapeake. I know all about all of our different water bodies 
now and their problems. One of the things I am hearing from 
Members more and more, though, is that they are getting these 
things thrust upon them that their constituents just can't meet 
in terms of the standards. Somebody mentioned earlier, I think 
Mr. Latta, that they would be better off just buying the 
communities out because the standard is so tough that they just 
can't meet it. If we have that trend continue, we are going to 
lose Congressional support. I really fear for that as we start 
doing that. You guys who are involved in these studies can 
understand that. That is a real, real problem.
    I guess what I would like to do is see what else we can, 
again, those three things that I mentioned with the enforcement 
piece, being more consistent, and better data, what else we can 
agree on that we can go forward with. Mr. Brown?
    Mr. Brown. I think you have a good list, but I would add 
one thing to the data part. It is not enough that we have a 
good exchange of data, that the data is clear, and that we 
agree on it. We also have to agree on how to interpret that 
data. That is something we have never really talked about much. 
We need to have methodologies of data interpretation that are 
defensible and that are based on good statistics. Many of the 
things that Dr. Shimshack said, I completely agreed with. You 
can look at the same data and come up with widely varying 
conclusions if you don't use good techniques for reviewing that 
data. That is something I think we also need to have.
    Mr. Boozman. Well, that is one of the leading causes, 
probably, of the inconsistency of enforcement in different 
regions. As you say, that data can mean different things to 
different regions and lead to different remedies. But I agree 
with you very much. So in that sense we need better science as 
to what that really means.
    What else can we agree on? Yes, sir?
    Mr. Schaeffer. Congressman, just reacting to Mr. Brown's 
response, I am all for better methodologies and finer 
statistics but I want to make sure we don't over-complicate the 
problem. For about 40 years, the law has required facilities to 
report their discharges. Those discharge limits that facilities 
have to meet are set in permits. Those are more often than not 
economically sensitive. They are set to be affordable. I think 
we don't need a lot of work on methodology to agree that if you 
are 20 or 30 times over your limit, something ought to be done. 
That is a serious violation and there ought to be a response. I 
am hoping we can at least agree on that.
    I understand there are issues with whether or not paperwork 
violations ought to have the agencies' attention. I just want 
to reiterate that we have lots and lots of information about 
discharges that are way over permit limits. The question in 
those cases is not whether enforcement is consistent or what 
are the differences in enforcement response? There is no 
enforcement at all. I hope that gets the Committee's attention 
as well.
    Mr. Boozman. I agree. Certainly, all crimes are not the 
same. Certainly those need to be enforced. Some of them really 
need to be enforced, I am sure.
    Yes, sir?
    Mr. Porta. When the New York Times article came out, 
obviously the States looked at their own enforcement and 
compliance data. I just want to give you an idea for that same 
four year period that the New York Times looked at in the State 
of Utah. Over four years they had 116 permitted facilities. 
There was a potential for effluent violations 236,976 times in 
that four year period. To have a compliance rate of 99.3, those 
are the data and percentages that I look at.
    If you have got that many potential points to violate, 
inevitably you are going to violate a standard at some point 
either through a plant malfunction or a system operator 
mistake. It is going to happen. Literally, the number of points 
for potential effluent violations throughout the Country is in 
the millions every year.
    Mr. Boozman. Very good.
    Thank you, Mr. Chairman. I hope that in working together on 
these things that we have agreed upon, the data piece and 
things like that, that we can get together and figure out 
either through oversight or legislation how to help EPA. It 
might be that we are just not giving them the resources that we 
might need to do a better job of oversight. But these things 
that we all seem to agree on we need to get straight.
    Mr. Oberstar. Thank you for that comment. This is the 
beginning of that process of inquiry and understanding, of 
establishing a database, finding the shortcomings, and then 
proceeding from there on how we ought to correct them.
    Mr. Taylor, the gentleman from Mississippi?
    Mr. Taylor. I will pass.
    Mr. Oberstar. You can't pass. You are the only one who 
hasn't spoken.
    Mr. Taylor. Mr. Chairman, I am very much aware that two 
thirds of the continental United States drains down the 
Mississippi River. When the wind blows out of the west, it goes 
right in front of my district.
    I am very much appreciative for your efforts to remind 
everyone that water moves from place to place. Pollution in one 
State ends up in another State. The dead zone in the Gulf of 
Mexico is very much a result of the over-use of fertilizers in 
some States and the levies along the Mississippi taking what 
used to flow into the marshes naturally and channeling it all 
into the Gulf.
    So I support your efforts. I understand where you are 
coming from. I welcome these folks' thoughts as we try to do 
this right.
    Mr. Oberstar. I thank the gentleman for that observation. 
My wife is from Louisiana, as Mr. Taylor knows. The Mississippi 
begins in my State, if not exactly in my district, and I have 
said we and the other ten States along the Mississippi are 
responsible, the Ohio, the Illinois, the Missouri River 
systems, for all the debris that wind up in Mississippi and 
Louisiana. Jean sometimes jokes that that is the reason their 
bread is so good, that it is taken from such sturdy water with 
all the flavors of the 11 States that drain into the Gulf of 
Mexico.
    Mr. Taylor. Mr. Chairman, it has a lot more to do with the 
oysters we harvest than the bread that is produced in someone 
else's State. That is why I have great empathy for the clam 
fisherman who was here a little while ago. Obviously all of 
that is a function of whether or not those industries will 
thrive and survive or will go out of business.
    Mr. Oberstar. Thank you.
    The Inspector General's testimony, Mr. Najjum, refers to a 
separation between media programs and functional categories. It 
was the intent of the Act that the program be administered 
according to water, air, pesticide, radiation, solid waste and 
so on. A few years later during the Nixon Administration these 
were all combined into functional categories which made the 
operation of the program difficult. Could you unwind that for 
us and tell us how we can get back to that in your experience 
and your overview of the program?
    Mr. Najjum. I am not sure I can unwind it completely. What 
we have noticed in looking at the stovepipes within EPA as we 
look at each of the programs, we think that there is a better 
use of resources in a functional basis particularly for 
enforcement. We mention the original 1970 memo on the 
Government reorganization. I think it was the Ash Council.
    Mr. Oberstar. The Ash Council is right, correct.
    Mr. Najjum. I am probably not the right one to be talking 
to you about the history of the Environmental Protection 
Agency. But the Agency's own history said that when they looked 
at it, they were organizing and combining functions, they had 
decided at that time that organizing by media was not the 
correct way to go. They had a three phase plan to get to it. 
They got through the second phase and the third phase became 
too hard because of the issues they were facing. It has come up 
again and again.
    We look at it from a point of view much like Goldwater-
Nichols in the Department of Defense where you had to take the 
three services and organize them into a modern-day Department 
of Defense that actually does its mission. I worked for DOD 
back in the 1980s and 1990s. That was a hard, hard thing. DOD 
would never have done that itself. I think we also have seen 
the quadrennial review that Homeland Security has taken on.
    Look at the organization from a mission perspective of what 
it is that you would like the Environmental Protection Agency 
to accomplish and how it should go about accomplishing it. Part 
of that may be the electronic infrastructure we talk about in 
terms of bringing information together. You certainly don't 
need to filter that through ten different regions. Maybe in 
1970 we did but in 2010 we don't. We have a whole different 
electronic infrastructure. EPA's infrastructure has pretty much 
been organized along media lines and not a functional line.
    So we think there are some big resource savings in 
organization and infrastructure.
    Mr. Oberstar. That is an administrative adjustment that can 
be made?
    Mr. Najjum. Correct.
    Mr. Oberstar. Mr. Rumpler, you made a very important 
distinction about enforcing discharge of pollutants versus 
enforcement on paper or reporting violations. Where does one 
end and the other begin? Where does paper end? Where does 
technical violation end and where does polluting of the waters 
begin?
    Mr. Rumpler. Well, I think it is quite simple. In terms of 
the discharge monitoring reports that the facilities themselves 
are required to submit to the State agencies and the EPA in 
those cases where EPA administers directly, on those forms they 
indicate exactly how much pollution of each type that is 
regulated they are putting into the water body. So these are 
self-admitted exceedances of a clearly defined pollution limit 
in the permit.
    Let me just say before we completely dismiss so-called 
paperwork or reporting problems that while I agree with all of 
my colleagues here that they are a less important priority than 
the obvious discharge of pollutants in excess of permit limits, 
it is possible that failure to report is masking substantive 
violations.
    Mr. Oberstar. Well, that is what I am getting at.
    Mr. Rumpler. We just won't ever know. I do believe that in 
California there are actually small but mandatory minimum 
penalties even for reporting violations to ensure that those 
reports are routinely and regularly put through. Because they 
are mandatory minimums that are administratively assessed, they 
take very little agency resources to do. So I am not suggesting 
that we should put a lot of agency resources into this. But 
there may be an automated way to clean up some of that stuff in 
addition to, of course, focusing most of the agency resources 
on the substantive pollution that is coming up.
    Mr. Oberstar. In aviation we place a heavy reliance on data 
and the paper trail of maintenance actions. Absence of 
reporting often leads to an absence of maintenance with the 
resulting failure of a part and a crash and fatalities.
    We have two minutes before we have to go--we probably 
should be leaving right now--so I want to make sure that I 
yield to Mr. Boozman.
    Mr. Boozman. I just very quickly want to say, because we do 
have to go, that the Federal Government under the past two 
Presidents has put a little bit more money into enforcement. In 
the States, is their enforcement money going down or is it 
staying the same as far as their budgets?
    Mr. Brown. Well, it is tough to say because we don't 
separate enforcement out from all the rest of it. As I said in 
my testimony, we don't----
    Mr. Boozman. How about all of it?
    Mr. Brown. You mean overall? It is going down right now, 
overall. That is not just for environment but across State 
government.
    Mr. Boozman. That is a problem. It is difficult for them to 
go down and then for us to take up the slack. So that is 
something else I think we need to look at, Mr. Chairman.
    Mr. Oberstar. Thank you very much, Mr. Boozman. I just want 
to say that we provided funding for State enforcement actions 
in the State Revolving Loan Fund bill that passed the Congress 
in the 110th. We have it again in this year's version of that 
bill. I also included such funding in the House version of the 
stimulus bill but it didn't make it through conference.
    Mr. Porta, you had something to add?
    Mr. Porta. Yes, just real quickly. With the States' 
economic situation, obviously as water administrators we have 
to make decisions. As the funding goes down, the first people 
we typically will look at are the data gatherers. I would 
rather have inspectors in the field than permit writers in 
terms of paying for those positions. So typically data is 
unfortunately a lower priority.
    With regard to Mr. Rumpler's comment about reporting, it is 
very significant. My response to him would be that if there are 
reporting violations, you deal with that. Once the reports come 
in, then if there are effluent violations, you deal with that. 
It is not like these are neglected.
    On the effluent violations, sometimes we are dealing with 
very small overages of the standard. Therefore, how do you deal 
with that? Do you bring out the heavy guns and assess a huge 
penalty because they were slightly over for iron but may have 
not affected the water quality?
    Mr. Oberstar. I have to interrupt you at that point, Mr. 
Porta, because we are down to zero. We have to get over to the 
Floor to vote. I have a series of other Committee activities 
before I rap the gavel.
    I just want to observe that Mr. Shimshack discussed issues 
of publication of enforcement action, data access, research 
funding, and traditional monitoring. Mr. Schaeffer discussed 
oversight of State programs and State agency staffing, which 
Mr. Porta has also referred to. That, combined with the 
inconsistency in enforcement and the functional problems within 
the program, is enough for us to continue a serious oversight 
of the EPA enforcement program. We will continue that work all 
throughout this session and the next session of Congress. We 
will impress upon the Agency those changes that can be done 
administratively and, where necessary, we will take legislative 
action.
    We appreciate your participation and the contributions that 
all of you have made to a deeper understanding of the state of 
our enforcement of EPA programs. Thank you very much.
    The Committee is adjourned.
    [Whereupon, at 2:45 p.m., the Committee was adjourned.]

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