[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
POTENTIAL IMPACTS OF PROPOSED CHANGES TO THE CLEAN WATER ACT
JURISDICTIONAL RULE
=======================================================================
(113-73)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 11, 2014
__________
Printed for the use of the
Committee on Transportation and Infrastructure
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available online at: http://www.gpo.gov/fdsys/browse/
committee.action?chamber=house&committee=transportation
______
U.S. GOVERNMENT PUBLISHING OFFICE
88-239 PDF WASHINGTON : 2015
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
BILL SHUSTER, Pennsylvania, Chairman
DON YOUNG, Alaska NICK J. RAHALL, II, West Virginia
THOMAS E. PETRI, Wisconsin PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina ELEANOR HOLMES NORTON, District of
JOHN J. DUNCAN, Jr., Tennessee, Columbia
Vice Chair JERROLD NADLER, New York
JOHN L. MICA, Florida CORRINE BROWN, Florida
FRANK A. LoBIONDO, New Jersey EDDIE BERNICE JOHNSON, Texas
GARY G. MILLER, California ELIJAH E. CUMMINGS, Maryland
SAM GRAVES, Missouri RICK LARSEN, Washington
SHELLEY MOORE CAPITO, West Virginia MICHAEL E. CAPUANO, Massachusetts
CANDICE S. MILLER, Michigan TIMOTHY H. BISHOP, New York
DUNCAN HUNTER, California MICHAEL H. MICHAUD, Maine
ERIC A. ``RICK'' CRAWFORD, Arkansas GRACE F. NAPOLITANO, California
LOU BARLETTA, Pennsylvania DANIEL LIPINSKI, Illinois
BLAKE FARENTHOLD, Texas TIMOTHY J. WALZ, Minnesota
LARRY BUCSHON, Indiana STEVE COHEN, Tennessee
BOB GIBBS, Ohio ALBIO SIRES, New Jersey
PATRICK MEEHAN, Pennsylvania DONNA F. EDWARDS, Maryland
RICHARD L. HANNA, New York JOHN GARAMENDI, California
DANIEL WEBSTER, Florida ANDREE CARSON, Indiana
STEVE SOUTHERLAND, II, Florida JANICE HAHN, California
JEFF DENHAM, California RICHARD M. NOLAN, Minnesota
REID J. RIBBLE, Wisconsin ANN KIRKPATRICK, Arizona
THOMAS MASSIE, Kentucky DINA TITUS, Nevada
STEVE DAINES, Montana SEAN PATRICK MALONEY, New York
TOM RICE, South Carolina ELIZABETH H. ESTY, Connecticut
MARKWAYNE MULLIN, Oklahoma LOIS FRANKEL, Florida
ROGER WILLIAMS, Texas CHERI BUSTOS, Illinois
MARK MEADOWS, North Carolina
SCOTT PERRY, Pennsylvania
RODNEY DAVIS, Illinois
MARK SANFORD, South Carolina
DAVID W. JOLLY, Florida
(ii)
Subcommittee on Water Resources and Environment
BOB GIBBS, Ohio, Chairman
DON YOUNG, Alaska TIMOTHY H. BISHOP, New York
GARY G. MILLER, California DONNA F. EDWARDS, Maryland
SHELLEY MOORE CAPITO, West Virginia JOHN GARAMENDI, California
CANDICE S. MILLER, Michigan LOIS FRANKEL, Florida
ERIC A. ``RICK'' CRAWFORD, ELEANOR HOLMES NORTON, District of
Arkansas, Columbia
Vice Chair EDDIE BERNICE JOHNSON, Texas
DANIEL WEBSTER, Florida GRACE F. NAPOLITANO, California
JEFF DENHAM, California STEVE COHEN, Tennessee
REID J. RIBBLE, Wisconsin JANICE HAHN, California
THOMAS MASSIE, Kentucky RICHARD M. NOLAN, Minnesota
STEVE DAINES, Montana ANN KIRKPATRICK, Arizona
TOM RICE, South Carolina DINA TITUS, Nevada
MARKWAYNE MULLIN, Oklahoma SEAN PATRICK MALONEY, New York
MARK MEADOWS, North Carolina NICK J. RAHALL, II, West Virginia
RODNEY DAVIS, Illinois (Ex Officio)
MARK SANFORD, South Carolina
DAVID W. JOLLY, Florida
BILL SHUSTER, Pennsylvania (Ex
Officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vii
TESTIMONY
Panel 1
Hon. Robert W. Perciasepe, Deputy Administrator, U.S.
Environmental Protection Agency................................ 7
Hon. Jo-Ellen Darcy, Assistant Secretary of the Army (Civil
Works)......................................................... 7
Panel 2
J.D. Strong, executive director, Oklahoma Water Resources Board,
on behalf of the Western Governors' Association and Western
States Water Council........................................... 52
Mark T. Pifher, manager, Southern Delivery System, Colorado
Springs Utilities, on behalf of the National Water Resources
Association and Western Urban Water Coalition.................. 52
Warren ``Dusty'' Williams, general manager/chief engineer,
Riverside County, California, Flood Control and Water
Conservation District, on behalf of the National Association of
Counties and the National Association of Flood and Stormwater
Management Agencies............................................ 52
Bob Stallman, president, American Farm Bureau Federation......... 52
Kevin Kelly, president, Leon Weiner and Associates, Inc., and
chairman of the board, National Association of Home Builders... 52
Eric Henry, president, TS Designs, on behalf of the American
Sustainable Business Council................................... 52
PREPARED STATEMENT SUBMITTED BY MEMBER OF CONGRESS
Hon. Sam Graves, of Missouri..................................... 75
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Hon. Robert W. Perciasepe........................................ 77
Hon. Jo-Ellen Darcy.............................................. 95
J.D. Strong...................................................... 106
Mark T. Pifher................................................... 137
Warren ``Dusty'' Williams........................................ 148
Bob Stallman..................................................... 157
Kevin Kelly...................................................... 177
Eric Henry....................................................... 188
SUBMISSIONS FOR THE RECORD
Hon. Donna F. Edwards, a Representative in Congress from the
State of Maryland, submission of a letter from the following
organizations: American Fly Fishing Trade Association,
Backcountry Hunters and Anglers, B.A.S.S., LLC, Berkley
Conservation Institute, Bull Moose Sportmen's Alliance,
International Federation of Fly Fishers, Izaak Walton League of
America, National Wildlife Federation, North American Grouse
Partnership, Pheasants Forever, Quail Forever, Snook and
Gamefish Foundation, The Nature Conservancy, Theodore Roosevelt
Conservation Partnership, and Trout Unlimited, June 3, 2014.... 25
Warren ``Dusty'' Williams, general manager/chief engineer,
Riverside County, California, Flood Control and Water
Conservation District, on behalf of the National Association of
Counties and the National Association of Flood and Stormwater
Management Agencies, slides accompanying his opening remarks... 58-60
Hon. Robert W. Perciasepe, Deputy Administrator, U.S.
Environmental Protection Agency, answers to questions for the
record from the following Representatives:
Hon. Timothy H. Bishop, of New York.......................... 87
Hon. Lois Frankel, of Florida................................ 89
Hon. Grace F. Napolitano, of California...................... 91
Hon. Dina Titus, of Nevada................................... 92
Hon. Jo-Ellen Darcy, Assistant Secretary of the Army (Civil
Works):
Cover letter to Hon. Timothy H. Bishop, a Representative in
Congress from the State of New York, accompanying responses
to questions for the record................................ 102
Answers to questions for the record from the following
Representatives:
Hon. Grace F. Napolitano, of California.................. 104
Hon. Dina Titus, of Nevada............................... 104
J.D. Strong, written testimony in the capacity of his role as
executive director, Oklahoma Water Resources Board............. 129
Eric Henry, president, TS Designs, on behalf of the American
Sustainable Business Council, answers to questions for the
record from Hon. Timothy H. Bishop, a Representative in
Congress from the State of New York............................ 191
ADDITIONS TO THE RECORD
American Rivers, written testimony of Stacey Detwiler, associate
director, clean water supply and government relations.......... 193
American Road and Transportation Builders Association, written
testimony...................................................... 201
Clean Water Action, written testimony of Jennifer Peters,
national water campaigns coordinator........................... 205
Colorado Clean Water Coalition, written testimony of Hon. Jack
Hilbert, chairman.............................................. 208
Frank A. Logoluso Farms, Inc., written testimony of Janie
Logoluso, CEO.................................................. 214
Healing Our Waters--Great Lakes Coalition, written testimony of
Todd Ambs, coalition director.................................. 216
International Council of Shopping Centers, written testimony..... 219
Michigan Farm Bureau, written testimony of Laura A. Campbell,
manager, Agricultural Ecology Department....................... 221
National Association of Realtors, written testimony.............. 223
National Stone, Sand and Gravel Association, written testimony... 239
National Parks Conservation Association, written testimony of
Chad W. Lord, senior director, water policy.................... 243
National Wildlife Federation, written testimony of Jan Goldman-
Carter, senior manager, wetlands and water resources; and
Daniel Hubbell, water resources and restoration................ 247
Natural Resources Defense Council, written testimony of Jon P.
Devine, Jr., senior attorney, water program.................... 250
Portland Cement Association, written testimony of Cary Cohrs,
chairman of the board; and president, American Cement Company,
LLC............................................................ 253
Portland Cement Association, Ohio cement industry data........... 255
Southern Environmental Law Center, written testimony of Navis A.
Bermudez, deputy legislative director.......................... 257
Theodore Roosevelt Conservation Partnership, written testimony of
Whit Fosburgh, president and CEO............................... 260
Trout Unlimited, written testimony of Steve Moyer, vice president
of government affairs.......................................... 262
WateReuse Association, written testimony of Melissa L. Meeker,
executive director............................................. 265
Waters Advocacy Coalition, written testimony of Deidre G. Duncan. 268
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
POTENTIAL IMPACTS OF PROPOSED
CHANGES TO THE CLEAN WATER ACT
JURISDICTIONAL RULE
----------
WEDNESDAY, JUNE 11, 2014
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:05 a.m., in
Room 2167, Rayburn House Office Building, Hon. Bob Gibbs
(Chairman of the subcommittee) presiding.
Mr. Gibbs. The Subcommittee on Water Resources and
Environment of the Committee on Transportation and
Infrastructure will come to order.
Today we are having a hearing on the impacts of a proposed
rule by the U.S. EPA and the Army Corps of Engineers on waters
of the United States.
A couple housekeeping issues here first. We have received
numerous requests for written testimony to be submitted to the
record. I ask for unanimous consent that all written testimony
be included and the hearing record be kept open for 30 days
after this hearing in order to accept these and other
submissions of written testimony.
Any objection? Hearing none, so ordered.
Welcome to our first panel. After a couple of opening
statements, we have the Deputy Administrator of the U.S. EPA
and the Assistant Secretary of the Army for Civil Works,
Assistant Secretary Darcy.
Then after the first panel we will have a second panel of
six individuals representing various Government entities and
associations and the challenges that they see with the proposed
rule and the impacts.
I yield myself time here to provide an opening statement.
First of all, I would again like to welcome everybody to
the hearing today on the potential impacts of proposed changes
to the Clean Water Act Jurisdiction Rule, which aims to
redefine the term ``waters of the United States.''
On April 21st of this year, the EPA and the Army Corps of
Engineers published a proposed rule in the Federal Register
that, according to the agencies, would clarify the scope of the
Federal jurisdiction under the Clean Water Act. After reviewing
the proposed rule, I have serious concerns about the rule and
the process the agencies are following to develop it.
Since 1972, the Clean Water Act has been instrumental in
dramatically improving the quality of our Nation's waters.
Fundamentally, to that progress, it has been the Federal-State
partnership which recognizes that not all waters need to be
subject to Federal jurisdiction, and that the States should
have the primary responsibility of regulating waters within
their individual boundaries.
However, I am concerned that this rule will undermine the
Federal-State partnership and erode State authority by granting
sweeping new Federal jurisdiction to waters never intended for
regulation under the Clean Water Act, including ditches,
manmade ponds, flood plains, riparian areas and seasonally wet
areas.
In promoting this rule, the agencies are implying to the
public that massive amounts of wetlands and stream miles are
not being protected by the States, and that this rule which
will essentially Federalize all waters is needed to save them.
However, nothing is further from the truth. States care about
and protect our waters.
I also am concerned how the proposed rule misconstrues and
manipulates the legal standards announced in their SWANCC and
Rapanos Supreme Court cases, effectively turning those cases
that placed limits in Clean Water Act jurisdiction into Federal
justifications for the agencies to expand their assertion of
Federal authority over all waters nationally.
The agencies have had an opportunity to develop clear and
reasonable bright line rules on what is jurisdictional versus
not, but they instead chose to write many of the provisions in
the proposed rule vaguely, in order to give Federal regulators
substantial discretion to claim Federal jurisdiction over
almost any water or wet area. This is dangerous, because this
vagueness will leave the regulated community without any
clarity and certainty as to their regulatory status and will
leave them exposed to citizens' lawsuits.
In addition, since many of these jurisdictional decisions
will be made on a case-by-case basis, as they have stated, and
this will give the Federal regulators free reign to find
jurisdiction, this rule, in essence, will establish a
presumption that all waters are jurisdictional. Thus, the
burden of proving otherwise will shift to property owners and
others in the regulated community.
This rule sets a very high bar for the regulated community
to overcome. Nevertheless, the agencies continue to claim that
no new waters will be covered by the rulemaking. The agencies
cannot, through guidance or rule, change the scope and meaning
of the Clean Water Act as they are trying to do here. I also am
troubled that the sequence and timing of the actions of the
agencies that have been taken to develop this rule are
undermining the credibility of the rule and the process to
develop it.
First, instead of initiating a rulemaking process by
soliciting input from and developing consensus with the general
public, scientific communities, the Federal and State resources
agencies on how to identify the appropriate scope of
jurisdiction, the agencies rushed ahead on their own and
developed the draft guidance that would by the agencies' own
admission increase significantly the scope of the Clean Water
Act's jurisdiction over more waters and more provisions of the
act.
Then after facing substantial bipartisan opposition to the
expansive new guidance, the Agency proceeded ahead again on
their own with a rulemaking that is simply based on the
expansive guidance.
And to hide the inadequacies of the rulemaking process that
the agencies have embarked on, EPA decided to develop a so-
called scientific study that is supposed to provide a basis for
determining the reach of Federal jurisdiction on the Clean
Water Act.
It is disturbing that the EPA intentionally precluded from
the study a review, and discussion of the scientific concepts
that are highly relevant to determining which waters should be
subject to the Clean Water Act coverage. The interconnectedness
of the science and the policy issue here warrants rigorous,
scientific peer review prior to the ruling's crafting. However,
instead of waiting until the science study was completed, the
agencies wrote the rule long before the study's report was peer
reviewed and finalized.
The Agency also took steps to hide the regulatory impacts
of the rulemaking by preparing a fraud economic analysis that
did not comprehensively assess all the cost and benefits. This
is very troubling because this rule, if not carefully crafted,
will have sweeping economic and regulatory implications for the
entire Nation, by impacting nearly all sectors of the economy,
threatening jobs, increasing compliance costs, restricting the
rights of landowners, inviting costly litigation and
undermining the ability of States and local governments to make
decisions about their lands and waters. Regulations on the
Nation's waters can and must be done in a manner that
responsibly protects the environment without unnecessary and
costly expansion of the Federal Government.
Finally, I am pleased to hear the agencies have just
announced a 91-day extension of the public comment period of
the proposed rule. However, the agencies should extend the
comment period on the proposed rule until after the EPA Science
Advisory Board has completed its review of the science study
and the study's report is thoroughly vetted to ensure that any
final rule is based on the final peer reviewed report.
I look forward to that testimony from our witnesses today,
and I would recognize Chairman Shuster of the Transportation
and Infrastructure Committee for any statement or comments he
may have.
Mr. Shuster. Thank you, Mr. Chairman.
The President's public proposed rule, which of course Mr.
Gibbs did a great job of going through it, will dramatically
extend the reach of the Federal Government when it comes to
regulating ponds, ditches and wet areas and I don't believe
anybody is going to dispute that. I mean, we may attempt to
hear that today, but that is what is going to happen.
But this is another example of this administration seeking
to use executive action, brute force by bypassing Congress,
ignoring Supreme Court rulings of the past. Unilaterally
broadening the scope of the Clean Water Act and the Federal
Government's reach into everyday lives, will adversely effect
the Nation's economy, threaten jobs, invite costly litigation
and restrict the rights of landowners, States and local
governments to make decisions about their own lands.
This massive Federal jurisdictional grab was the subject of
failed legislation in the 110th and 111th Congress and I know
my colleagues over there were in the majority at the time, and
I hope we can join together to fight back on this. Because once
again, this is going to be Congress seeding power to the
executive branch, and if we do that, if we allow this to go
forward, we will never get that back and I don't care if it is
a Republican President or a Democratic President, we give it up
and they will never give it back to us.
So this is a fight we need to have, and we need to win. In
the 110th and 111th Congress, it was strong bipartisan support
to prevent those bills from moving forward, and as I said, the
administration is now doing an end around Congress to try to
gain that Federal power expansion through this rulemaking. The
rule supposedly aims at clarifying water bodies subject to
Federal jurisdiction under the Clean Water Act, but as I said,
I am concerned that there is serious flaws in this rule and the
executive branch will take power away from the Congress.
Twice this Supreme Court has told the Agency that there are
limits to the Federal jurisdiction under the Clean Water Act
and they had gone too far in asserting their authority. Now the
administration appears to be cherry-picking those Supreme Court
rulings, picking out language in attempt to gain this expanded
authority, rather than heeding the directive of the Court.
It is the responsibility of Congress, not the
administration, to divide the scope of the jurisdiction under
the Clean Water Act. This rule will have sweeping economic
regulatory implications for the entire Nation, and I believe
that the agencies will be better off correcting the
deficiencies in this rulemaking and develop a rule that is
credible, reasonable and consistent with the law.
Regulation of our Nation's waters must be done in a manner
that protects the environment without unnecessary and costly
expansion of the Federal Government. We can continue to protect
our waters without unreasonable and burdensome regulations on
our businesses, farmers and families.
So, again, I have tremendous concern. This is something
that I know that those of us on our side of the committee are
going to fight to make sure this doesn't move forward and that
we as Congress, and I would, again, encourage my Democratic
colleagues to look at this as a fight between the executive
branch and the legislative branch. This is our constitutional
duty, and they are going to take it away from us.
And I said to you, if this were a public administration, I
would be saying the same thing and fighting it just as hard. So
I encourage you all to keep an open mind as we go through this
and let's fight to keep Congress relevant in this process.
I yield back.
Mr. Gibbs. At this time, I recognize the ranking member of
the full Transportation and Infrastructure Committee, Mr.
Rahall.
Mr. Rahall. Thank you very much, Mr. Gibbs. I appreciate
you as chairman holding this hearing, and I appreciate very
much our witnesses being with us today on both panels.
This is an excellent opportunity to examine and question
the regulations that are pouring out of the Environmental
Protection Agency. We are told that this latest regulation
defining waters of the United States, is an attempt to address
the muddled mess of what waters are subject to the permitting
processes of the Clean Water Act.
Certainly, the most recent Supreme Court decisions on the
matter have only left the question increasingly murky, opening
a legal void that is begging to be addressed. Unfortunately,
from all that I have seen and heard to date, this latest
proposed rule has only further muddied the waters. I have heard
many times from proponents of this rule that the intention in
crafting it was to provide certainty, so that businesses and
individuals before setting off on some undertaking would know
whether or not they needed to go through the lengthy and
expensive permitting process.
On that score, I have to give credit where credit is due.
This proposal certainly does provide certainty, the certainty
that if you want to undertake an activity whatsoever that may
involve so much as a puddle, you must seek a permit. So I
confess, I am terribly frustrated. I represent a State that has
been brutally beaten up by the barrage of regulations gushing
out of the EPA.
We feel we are under siege from an agency so power hungry
that it is gobbling up jurisdiction and taking power away from
our States, away from other Federal agencies, and ultimately,
away from the people, and any serious person looking at this
agency would have to question if it has bitten off more than it
can chew already.
The EPA likes to cultivate the impression that science and
pragmatism govern the day and that it is not swayed by
ideology. But I see it differently. I see an agency that is so
hard over against coal that it will gloss over the science in
doing so, and if doing so, helps to stop the construction of
coal-fired power plants. I see an agency that is so blinded by
an anti-coal philosophy that it will stonewall efforts to
provide coal-field residents with modern sewer systems and
safer water. It is an agency that is willing to block
construction of a major national highway at huge savings to the
American taxpayers if it would involve the mining of a little
coal.
This committee is right to view this new proposal with
skepticism. We must look candidly and matter of factly at the
cost of this latest EPA proposal on the waters of the United
States and its effects on our jobs, on our economy and on the
course of our Nation.
So I thank the chairman for allowing me these opening
comments, and I thank him again for having this hearing today.
Mr. Gibbs. Thank you.
At this time, I recognize my Ranking Member Bishop for any
comments he may have.
Mr. Bishop. Thank you very much, Mr. Chairman, and thank
you for holding today's hearing.
Let me take a moment to frame out the context of today's
hearing and try to highlight some of the factors that brought
us to where we are today. The starting point of all of this was
Congress' passage of the Clean Water Act in 1972, which was
approved by a veto override by a 10-to-1 margin over President
Nixon's veto.
In that law, the Congress broadly defined the scope of the
act as the navigable waters, meaning the waters of the United
States and the territorial seas, and directed the agencies
before us today to fill in the details. For almost 30 years,
the agencies' regulatory definition of those terms were the law
of the land and since enactment of the Clean Water Act, we have
seen dramatic improvement in the number of water bodies that
are safe for fishing and swimming, up from one-third of the
Nation's waters in 1972 to approximately two-thirds of the
Nation's waters today. I hope we can all agree that is a good
thing, and I hope we can also all agree that that improvement
would not have happened were it not for the Clean Water Act.
Then in 2001, a stakeholder challenged on the act's
application with respect to an Illinois landfill, resulted in
the Supreme Court questioning the application of these
definitions. Later, in 2006, the Supreme Court again questioned
the application of these rules to two wetlands in the State of
Michigan. In the latter case, the Rapanos case, Chief Justice
Roberts wrote that the core and the EPA needed to do a better
job in defining the scope of the Clean Water Act. So if this
is, in fact, a conflict between branches of Government, perhaps
the conflict is between the judicial branch and the executive
branch.
This is something that has been attempted by the last two
administrations. The administration of President George W. Bush
and the current administration. In 2003, the Bush
administration initiated a public rulemaking to define the term
``waters of the United States'' consistent with the rulings of
the Supreme Court as well as took public comment on whether
other regulatory definitions on the scope of the Clean Water
Act jurisdiction also needed clarification.
In response, several outside stakeholders, including some
of the groups represented here this morning, recommended that
the Agency used the rulemaking process as a means of providing
increased clarity to the, quote, ``hodgepodge of ad hoc and
inconsistent jurisdictional theories,'' closed quote, as well
as to define other terms in the regulations including such
terms as ``tributary'' and ``adjacent.''
The 2003 rulemaking attempt by the agencies never reached
its conclusion. Following in the footsteps of the Rapanos
decision, the Federal agencies released two interpretive
guidance documents, one in 2007 and a second in 2008, the
latter of which remains in force today.
Now, let's fast forward to 2014. The list of stakeholders
publicly recommending that agencies carry out a rulemaking has
expanded and now includes groups ranging from the National
Wildlife Federation to the Waters Advocacy Coalition. In
response, earlier this year, the administration initiated its
own rulemaking to do just that, to clarify the scope of the
Clean Water Act consistent with the parameters laid down by the
Supreme Court over the years.
Now, I am not naive enough to expect that the various
groups following this proposed rule would agree on how to
clarify the scope of the Clean Water Act or where the bright
lines of jurisdiction should lie. However, I do believe it is
reasonable for the agencies to be allowed to continue this open
process in providing the clarity that these stakeholders have
demanded over the years.
If the stakeholders have concerns or recommendations for
changes to the proposed rule, that is what the public comment
period was created for, and I strongly encourage all interested
parties to utilize this open process to make their views known.
However, I do not support throwing out the entire rulemaking
process simply because there is disagreement with the initial
draft.
Going back to the legal state of play. In the past 30
years, the Supreme Court has issued three rulings that directly
address the scope of the Clean Water Act, the Bayview Homes
case, the SWANCC case and the Rapanos case. Each of these
decisions outlined a piece of the puzzle for defining the scope
of the Clean Water Act.
In the Bayview Homes case, the justice unanimously agreed
that certain wetlands fell within the protections of the Clean
Water Act. In the SWANCC decision, the five-to-four majority of
the Court ruled that the presence of migratory birds on a water
of the United States could not be the sole basis for
determining jurisdiction.
Finally, in Rapanos, the Court issued a four-one-four
decision where four justices lead by Justice Scalia outlined a
relatively permanent waters test for determining jurisdiction,
while Justice Kennedy established a complimentary test, the so-
called significant nexus test for determining jurisdiction, and
the remaining four justices agreed with the Agency's current
authorities. These three decisions outline the four corners of
the Supreme Court's interpretation of the scope of the Clean
Water Act.
So in my view, the question becomes, how does the April
2014 proposed rule compare with tests on the Clean Water Act
scope as outlined by the Supreme Court? This will be the area
of questioning that I will focus in on today as this hearing
progresses. If the stakeholders today suggest a different
approach, I welcome their input, as well.
Mr. Chairman, I hope that all involved with today's hearing
will use this hearing as a learning experience about what this
rulemaking does, and as important, what it does not do.
I welcome the witnesses here this morning. I look forward
to your testimony.
And I yield back.
Mr. Gibbs. If any other Members have opening statements,
they can submit their written testimony for the record.
At this time, we will recognize our panel 1. We have the
Honorable Robert Perciasepe, the Deputy Administrator for the
United States Environmental Protection Agency; and we also have
the Honorable Jo-Ellen Darcy, who is the Assistant Secretary of
the Army for Civil Works.
Mr. Perciasepe, I will recognize you first. The floor is
yours. Welcome.
TESTIMONY OF HON. ROBERT W. PERCIASEPE, DEPUTY ADMINISTRATOR,
U.S. ENVIRONMENTAL PROTECTION AGENCY; AND HON. JO-ELLEN DARCY,
ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS)
Mr. Perciasepe. Thank you, Mr. Chairman, and Members,
Ranking Member, thank you so much for inviting us today.
Mr. Gibbs. Can you pull your mic up a little bit closer?
Mr. Perciasepe. I apologize. I think we all agree, and I
have heard this already, that we want clean and safe waters for
ourselves, our economy, our environment, our children, our
future. I also want to express my appreciation to my colleague
and friend, Assistant Secretary of the Army Jo-Ellen Darcy for
her leadership and commitment to protecting the Nation's
waters.
We are undertaking a process to clarify the geographic
scope of the Clean Water Act and to improve a regulation that
has been in place for nearly 30 years. The proposed rule will
help provide families, manufacturers, farmers, sportsmen,
energy producers and the American people with the clean water
they depend on.
The written testimony that I have submitted will provide
more details about the proposed rule, including the Agency's
goal to respond to the request from stakeholders across the
country to make a process of identifying waters protected under
the Clean Water Act easier to understand, more predictable and
more consistent with the law and peer-reviewed science. We
believe this rulemaking will minimize delays, costs, and
improve predictability, clarity, consistency for everyone who
may or may not need a Clean Water Act permit.
I will focus my opening remarks this morning on some of the
misinformation that exists regarding the potential effects of
this rule, and I am concerned that incorrect information may
have the effect of distracting the attention from the legal
policy and scientific underpinnings of the proposed rule.
The agencies are meeting with Americans across the country
including farmers, energy companies, small business, State and
local governments, sportsmen, developers and many others to
solicit their comments, because, remember, this is a proposal,
and to answer their questions about it.
We are hearing from a public directly and personally about
how to improve the rule and how to make it most fair, flexible
and effective for everyone, in addition to providing valuable
insights to our discussions are also revealing an unfortunate
pattern of misinformation.
For example, I have heard in my discussions with
stakeholders that this regulation will require farmers to get
permits for their cows to cross a stream; that this legislation
will make dry washes that carry water only once in a thousand
years protected under the Clean Water Act; that this rule will
make entire flood plains subject to the Clean Water Act
jurisdiction, and I can tell the committee that categorically,
none of these are correct statements.
In contrast, here are some of the examples about what the
proposed rule does and does not do. In adherence with the
Supreme Court, it would reduce the scope of waters protected
under the Clean Water Act compared to the existing regulations
on the book. It would not assert jurisdiction over any type of
waters not previously protected over the past 40 years.
The rule does not apply to lands, whole flood plains,
backyards, wet spots or puddles. It will increase transparency,
consistency and predictability in making jurisdictional
determinations and reduce existing cost confusion and delays.
It represents the best peer-reviewed science about functions
and values of the Nation's waters. The agencies will not
finalize this rule until the Science Advisory Board completes
its review, which you have mentioned, Mr. Chairman.
It would reduce Clean Water Act jurisdiction over ditches
compared to the previous 2008 guidance. The rule will maintain
all existing Clean Water Act exemptions and exclusions. In
addition, the agencies also identify agricultural conservation
practices conducted in waters that do not require a 404 permit.
We want to encourage conservation work on agricultural land.
We have published a proposed rule not a final rule. We are
currently taking public comment, and we have extended the
comment period, as you have already heard. We expect a
tremendous amount of public response from a broad range of
interests, and we are actively working to meet with a wide
range of stakeholders. This outreach has already been
tremendously helpful to us in understanding the concerns and
discussing effective solutions. We are going to continue to
work hard and listen more effectively and learn more and better
understand.
Let me just conclude by emphasizing my strong belief that
what is good for the environment and clean water is also good
for farmers, ranchers, foresters, manufacturers, homebuilders,
small businesses, communities, energy producers and all
Americans.
We look forward to working with all stakeholders to reflect
this important goal in the final rule in defining geographic
role of the Clean Water Act.
And I thank you, and I look forward to your questions.
Mr. Gibbs. Assistant Secretary Darcy, welcome. The floor is
yours.
Ms. Darcy. Thank you.
Good morning, Chairman Gibbs, Ranking Member Bishop and
other members of the committee.
Thank you for this opportunity today to discuss the
proposed rule clarifying the definition of waters of the United
States under the Clean Water Act. Once implemented, this rule
will enable the Army Corps of Engineers to more effectively and
efficiently protect our Nation's aquatic resources while
enabling appropriate development proposals to move forward.
Clean Water Act jurisdiction applies to ``navigable
waters,'' defined in the statute as ``waters of the United
States including the territorial seas.'' Our 1986 regulations
define ``waters of the United States'' as traditional navigable
waters, interstate waters, all other waters that could affect
interstate or foreign commerce, impoundments of the waters in
the United States, tributaries, the territorial seas and
adjacent wetlands.
The U.S. Supreme Court has addressed the scope of waters
regulated under the Clean Water Act in three occasions,
specifically the Riverside Bayview Homes case of 1985, the
SWANCC decision in 2001, and the Rapanos decision in 2006. The
Court's decisions significantly altered the regulatory
landscape, and although the Corps and the Environmental
Protection Agency have done a fine job adjusting their
regulatory activities in response, a critical need exists for
this rulemaking.
We receive many comments from Congress, from organizations,
from stakeholders, from the public, urging the agencies to
pursue notice and comment rulemaking, including Chief Justice
Roberts himself, and the Rapanos decision strongly recommended
that the agencies initiate a rulemaking.
We have been working for several years now to develop a
science-based rule that will provide the clarity needed, the
transparency, as well as the efficiency. Under the proposed
rule, the process of identifying waters of the United States
will become less complicated and more efficient as to which
waters are and which waters are not jurisdictional. Our
proposal does not assert jurisdiction over any new category of
waters; however, we do expect that there will be a small
increase in jurisdiction over the existing 2008 guidance, but
the extent of jurisdiction is less inclusive than the 1986
regulations.
Our decision to propose to regulate by rule, all
tributaries and adjacent waters and wetlands is scientifically
based and is consistent with our understanding that these
waters, alone or in combination with similarly situated waters
in the watershed, have a significant nexus to jurisdictional
waters. Other waters may be determined jurisdictional only upon
a case-specific determination that a significant nexus exists
between the jurisdictional water. This is consistent with our
current practice.
The proposed rule will also exclude certain waters and
erosional features. Waste treatment systems and prior converted
croplands remain excluded. We anticipate receiving meaningful
comments on the proposed rule, and as you know, the comment
period has just been extended until October 20 of this year.
Mr. Chairman, and members of the committee, I am happy to
answer your questions and look forward to this hearing. Thank
you.
Mr. Gibbs. At this time, Mr. Chairman of the committee,
Bill Shuster, do you have--OK. He yields to former chairman Mr.
Young from Alaska.
Mr. Young. Thank you, Mr. Chairman. I want to thank the
witnesses.
I have a personal feeling about the EPA. I want you to know
what you have done in Alaska to me is a disgrace. Without any
input from the State of Alaska, any cooperation with the State
of Alaska, any understanding of the effect upon individuals in
the State of Alaska, preempting a State-owned property without
consulting, total arrogance on part of another agency.
The second thing, Mr. Perciasepe, is the influence you
have, Ms. Darcy, on your agency where we just now have a Corps
request of a new way to allow family mining to take place, and
I have information it was submitted by the Corps for permitting
because of the EPA. That is not right. You are a separate
agency, you should have the ability to make decisions based
upon other than, I call, a policy of an EPA that doesn't
understand that there is economics, there is a human life that
is involved, and that is the last of my statement.
But I would like to just ask the question to the EPA. In
this bill, you indicated costs were underestimated. Are you
doing anything about that? Are you looking at the cost of this
legislation upon the economy and upon the individual States?
Mr. Perciasepe. Thank you for the question. We have a draft
economic analysis that accompanies the proposal. Our draft
economic analysis does identify the costs, and it does identify
the benefits that we anticipate----
Mr. Young. But is it true you underestimated the cost in
this proposal?
Mr. Perciasepe. We do not believe we have underestimated
the cost.
Mr. Young. So you are not doing anything about it?
Mr. Perciasepe. Well, it is a proposal so we are taking
comment on the economic analysis, and if we do get comment that
demonstrates any modification or improvement that we can make
on it, we will obviously take that into account before we do
any final----
Mr. Young. Did you consult with any of the States involved
or any of the States in the United States on this proposal?
Mr. Perciasepe. We have had discussions, ongoing
discussions with the States, and we continue to have ongoing
discussions.
Mr. Young. Have you found one State that supported this
proposal?
Mr. Perciasepe. I don't have a polling of the States.
Mr. Young. So you really didn't consult. Because I don't
believe there is one of the 50 States that support this
proposal.
Mr. Perciasepe. I couldn't say that one way or the other.
Mr. Young. Well, you are the Agency. You should know that
if you are consulting them. There should be somebody, one State
saying this is a grand idea, and if you don't know, that means
you didn't consult with them.
Mr. Perciasepe. We did consult with them.
Mr. Young. Well, no, because you didn't do it well enough.
You didn't write it so the States could accept it. You got 50
States that say they don't like this program. Fifty States sir,
and you represent 50 States supposedly as an agency.
Mr. Perciasepe. I don't believe 50 States have said that,
sir.
Mr. Young. Oh, well, do you believe they said in one State?
Give me one State.
Mr. Perciasepe. The way we----
Mr. Young. One State.
Mr. Perciasepe. I am sure they will----
Mr. Young. You have not one State.
Mr. Perciasepe. I don't have one State?
Mr. Young. You have not one State that supports this
proposal?
Mr. Perciasepe. All right. You won't let me answer, so go
ahead.
Mr. Young. No. I am asking you a question. You can't do it?
Mr. Perciasepe. All right. Well, you have to stop talking
so I can answer.
Mr. Young. You can't do it. You can't do it. Now, that is
what bothers me. Now, if I have a private piece of property
under the Constitution is mine----
Mr. Perciasepe. Yes, correct.
Mr. Young [continuing]. And I have water on it, can you
under this rule go in and tell me I cannot make a difference in
the water that is on my property? I cannot drain my pond under
this rule?
Mr. Perciasepe. If those waters are jurisdictional under
the Clean Water Act, you would have to get a permit to do it.
Mr. Young. The question is very simple. I have a pond of
water. It is on my private land. It is my water. Is that not
true, it is my water?
Mr. Perciasepe. It is on your land.
Mr. Young. Is it my water?
Mr. Perciasepe. That varies from State to State on water
rights.
Mr. Young. I ask you as Federal. State has not proposed
this. It is my water. It is on my property, and I want to drain
it. Can I do that without your permission?
Mr. Perciasepe. The United States Congress has enacted a
law that requires a permit to do work in waters that are
jurisdictional under the Clean Water Act. So if it is, and I
have no idea whether it is or not because I don't know which
water you are talking about, it would require a permit.
Mr. Young. It is my property. This is my ranch.
Mr. Perciasepe. It would require a permit if it is
jurisdictional. If it isn't jurisdictional, you won't need a
permit.
Mr. Young. Mr. Chairman, if I say so in the committee, this
is an example, under the Constitution you have a right on your
property to protect your property. If I want to drain it
because I have got, what do you call these fish that walk
across the water on the land and get in the other area and I
want to kill those fish and I can do it by draining it, and now
I have to get a permit from you and your agency says, no, you
can't do it because we have not given you a permit. You are
taking from my right to run my land. That is unconstitutional.
And you, both of you swore to uphold the Constitution.
Mr. Perciasepe. That is correct.
Mr. Young. And you are not doing it if I can't run my land
and my water. Mr. Chairman, that is an example of giving the
overstepping of this Government. I have watched this for 81
years. We have a Government today, Mr. Chairman, that is taking
away the right of individual's rights, and I say to the Agency,
no. That people are going to stand up one of these days and
say, no more. That is enough. You are not going to go against
the Constitution. And my time is done. Let the chairman do it.
Let everybody else start asking these questions.
Mr. Gibbs. Thank you. Mr. Rahall.
Mr. Rahall. Thank you, Mr. Chairman. I will try to be a
little tamer.
Mr. Deputy Administrator, as we all know, the coal
industry, coal-mining jobs, crucial, vital to my home State. It
is our livelihood. Coal literally keeps the lights on, and when
we have downturns for a variety of factors or a variety of
reasons contribute to those downturns in the industry as we are
in now. There are layoffs, layoffs of law enforcement personnel
by county commissioners who cannot find the funding to keep
officers on the street or even keep the lights on in their
courthouses or keep staff employed.
So there is a lot of families watching these proposals in
my district as they did the recent proposals announced last
week and they are worried about their jobs. They are receiving
warn notices as we speak. Again, there is a variety of factors
for this downturn. I recognize that. Everybody recognizes that.
But in these downturns in the past, we have always felt the
Government is trying to help us get out of these downturns in
the coal industry. That is not the feeling now. As a matter of
fact, just the opposite. I think our Government is trying to
keep us in a downturn and trying to finish us off during this
current down cycle.
So, you know, as I say, everybody is worried about
everything that comes out of EPA in the district I am honored
to represent. Several years ago the agencies went through an
extended exercise to align various definitions of fill material
that has a lot in the industry concerned. My question to you
would be, is the EPA planning now to revisit that and redefine
what is fill material?
Mr. Perciasepe. Congressman, we absolutely have no plans to
revisit that.
Mr. Rahall. OK. Let me ask you another question. On the
issue of properly permitted ditches on mine sites that are in
place to address stormwater runoff, is the rule expected to
capture these onsite draining systems?
Mr. Perciasepe. Looking specifically, for instance, at a
permitted coal mining site, we would expect that the waste
treatment exclusion in the rule that we are continuing in this
same way it has always been there, we will continue, which
covers many of those. Any stormwater ditches or ponds that were
constructed to convey or deal with stormwater control on mining
sites would not be covered, and we are not changing the water
treatment or the waste treatment system exclusion rule, the
imposing of the rule.
So with those clarifying points, which are reinforcing the
fact that the answer is no, that we would not have jurisdiction
over those treatment facilities that are on a permitted mine
site.
Mr. Rahall. So the industry could continue to rely upon
your longstanding Agency interpretations----
Mr. Perciasepe. Yeah, exactly.
Mr. Rahall [continuing]. Regarding these uses?
Mr. Gibbs. Madam Secretary.
Ms. Darcy. Yes, those exclusions will stay in place under
this proposed rule.
Mr. Rahall. OK. Thank you.
I yield back, Mr. Chairman.
Mr. Gibbs. I have some questions.
First of all, you are absolutely right. We need to make
sure we bring certainty to our businesses and our farmers and
everybody out there, but there is so much vagueness, and when I
hear your testimony, and I actually read the testimony of the
next panel, I hope you are able to stay around to hear the next
panel since you are the regulators and see what their concerns
are. So I really would appreciate if you are able to stay
around and hear their testimony because they are really
concerned about that, too, and they have a little different
take on that.
First of all, some of the things you, Mr. Perciasepe said,
I hope that you can put that in writing because sometimes
saying things, we like to see it down in writing for the
official record.
But Ms. Darcy, we are talking about vagueness. In your
testimony, it says, ``The agencies proposed that waters outside
of the riparian and flood plain areas would be jurisdictional
only if they have confined surface or shallow subsurface
connection to the traditional navigable waters,'' and so on.
Would you please explain to me what you mean by the
connectivity or the surface or a shallow subsurface connection?
Because you say you are not expanding the scope of your
jurisdiction, but I don't know what that means.
Ms. Darcy. Congressman, what it means is that if there is a
connection between that and the flood plain, and if the flood
plain is a navigable water, then a significant nexus
determination would need to be made.
Mr. Gibbs. Any connection or significant connection? I
don't mean to de minimis anything, but----
Ms. Darcy. No, significant connection, and we define
significant nexus in the rule as to how significant that would
be. It has to be able to impact----
Mr. Gibbs. OK. Would you explain to me how you define
significant?
Ms. Darcy. Pardon me?
Mr. Gibbs. Would you explain to me how you define
significant?
Ms. Darcy. I will read you the definition, if that will
help.
``Significant nexus means that a water, including a
wetland, either alone or in combination with other similarly
situated waters in the region in that watershed significantly
affects the chemical, physical or biological integrity of a
water identified as a jurisdictional water.''
Mr. Gibbs. So for example out West, I have been out West, I
have seen areas where they might get water flowing through an
area during a once-in-a-year rain event and you know, it is dry
beds, would that be significant?
Ms. Darcy. That, again, would be an individual case-by-case
determination depending on the circumstances in that area. For
example, some of those kinds of waters, if they are determined
to be a tributary, which is defined as a water body that has a
bed, a bank and ordinary high water mark and----
Mr. Gibbs. So let's say in my farm last month I had a
washout, and I went out there and I fixed it. It was probably
200 feet long. It washed out. It was close to 2 feet deep, 2
feet wide. You know, I had to fill that in, and I planted grass
and tried to do the right thing to fix that.
Now, if you came out, the Corps came out, would they say
that was a water bed? Or would I be able to fix that without
getting a permit?
Ms. Darcy. Congressman, what you have described would be an
erosional feature. That would not be subject to a
jurisdictional determination.
Mr. Gibbs. OK. I read through the testimony of the next
panel. There is a lot of concern that the States haven't been
consulted, local governments haven't been consulted, so I just
wanted to make you aware of that, Mr. Perciasepe, that there is
concern about that.
Also there is a huge concern of local governments, road
ditches, because you talked about, I think you used
significant, the bed. So I think you could define that as a
ditch now on the new definition as a tributary. Does that mean
when they are doing a dredge or clean out the ditch that they
are going to have to get a permit?
Ms. Darcy. Congressman, for the first time, we are
excluding in this rule ditches and if you would like, I can
give you the two examples of what kinds of ditches.
Mr. Gibbs. Well, I guess there is some controversy if you
really are or not, and I think the trust factor here, we have
seen some of the things that the EPA has done in the past with
the revocation of permits and veto of permits and preemption of
permits that I think there is a high level of distrust out
there, and I am really concerned about how we move forward on
that area.
OK. I am just about out of time. I think I will turn it
over to Mr. Bishop.
Mr. Bishop. Thank you, Mr. Chairman.
Assistant Secretary Darcy, first off, thank you for reading
the definition of significant nexus. Am I correct in
understanding that the language in the significant nexus
definition as included in the proposed rule, is lifted almost
verbatim from Justice Kennedy's ruling in the Rapanos case?
Ms. Darcy. I believe that to be the case and also, I would
just like to reiterate that the definitions are also part of
what is being proposed in this rule as being open for public
comment.
Mr. Bishop. OK. But you are staying wholly within the
confines of Justice Kennedy's definition of significant nexus
in this proposed rule; is that correct?
Ms. Darcy. That is correct.
Mr. Bishop. And is it also correct that Justice Scalia in
his definition of relatively permanent connection to
traditional navigable waters suggested a hydrological
connection in his ruling, and is it not the case that your
proposed definition adheres to Justice Scalia's definition; am
I right about that?
Ms. Darcy. That is correct.
Mr. Bishop. Thank you. Now, let me ask you this, there are
these two rules or two tests, the relatively significant nexus
tests and the relatively permanent connection test. Is there
any way in which any aspect of your proposed rule extends
jurisdiction beyond the four corners of those two definitions?
Ms. Darcy. No.
Mr. Bishop. Mr. Perciasepe, do you agree with that?
Mr. Perciasepe. I do, and, in fact, I would just augment
slightly that in addition to the definition that the colloquy
just discussed here, the discussion on the words in the Supreme
Court Judges, we actually are using this rulemaking to, by
rule, exclude certain things. So even with that test, some,
notwithstanding if they would pass that test or not, they are
excluded.
Things like, to go back to the Chair's question, ditches
that are excavated wholly in uplands, that drain only in
uplands and that have less than perennial flow, which is
virtually most of the highway drainage ditches in the country.
You know, they are not draining a wetland. They are not
draining a stream. They are just draining dry land when it
rains. Those are excluded in the definition of the rule. So I
just wanted to add that to Assistant Secretary Darcy's comment.
Mr. Bishop. But just to be clear, this has been described
as a power grab. It has been described in other ways somewhat
even more pejorative than that. Your definitions are
definitions that hue precisely to the definitions suggested by
the two Supreme Court rulings?
Ms. Darcy. That is correct.
Mr. Bishop. Thank you. Let me move to another area.
The operative guidance that we have right now is the 2008
guidance. The 2008 guidance asserts jurisdiction over dry land
ditches that flow less than year-round, yet your proposal
limits jurisdiction by requiring water year-round. Am I
correct, therefore, in determining that jurisdiction over fewer
ditches would be asserted under your ruling than is currently
the case today?
Ms. Darcy. That is correct.
Mr. Bishop. OK. So it limits, rather than expands the scope
of the Clean Water Act in that particular case. Am I right
about that?
Ms. Darcy. That is correct.
Mr. Bishop. All right. Let me just ask one more question.
Are there any examples where the proposed rule expands the
definition of jurisdictional waters that is currently the case
under the 2008 guidance?
Ms. Darcy. No.
Mr. Bishop. Mr. Perciasepe, do you agree with that?
Mr. Perciasepe. I do. There is no expansion.
Mr. Bishop. And does it, in fact, limit some of the
jurisdiction?
Mr. Perciasepe. It does. In fact, some of those
limitations, as I mentioned, have to be done through
rulemaking.
Mr. Bishop. OK. So those who are proposing that we prohibit
the use of Federal funds to allow this rulemaking to go forward
or to enforce that rule, this might be a falling under the
heading of be careful what you hope for because the 2008
guidance is more restrictive than what this rule is proposing?
Is that a correct interpretation?
Ms. Darcy. In some instances, that is correct.
Mr. Bishop. Mr. Perciasepe, do you agree with that?
Mr. Perciasepe. I do.
Mr. Bishop. OK.
Thank you very much. I will yield back.
Mr. Gibbs. Mr. Shuster.
Mr. Shuster. That you, Mr. Chairman.
You know, some words have been used here: ``Flexibility.''
Flexibility is a great thing when both parties get to use
flexibility. My concern is that when you talk about
flexibility, the stakeholders seem to never get the flexibility
to come under a rule and be able to mitigate the problem
themselves in a way that it would work.
What typically happens that I see is when you talk about
flexibility, it allows the EPA and the Corps the flexibility in
different districts, in different regional offices across the
country to interpret these things differently.
And we see that in Pennsylvania on the Marcellus gas play
where the Corps office in Baltimore is treating Pennsylvania
and wherever else, the other places it has jurisdiction
differently than what happens in Arkansas and other places in
this country because the local office is interpreting these
rules and regulations in a different way.
For instance, also the word ``significant.'' Significant,
what it means to me and what it means to you is different. I am
not a scientist. I am not a geologist. You don't have specifics
in there as to really what significant is. It requires a
measurement of some sort, then I can understand it, or
measurement that a farmer or a developer can understand.
So you have got all these nice terms in here but when you
look at how you have made these definitions, tributary,
adjacent, flood plain, neighboring waters, they are very vague
to my understanding and so when we talk to the stakeholders
today and have been talking to them, they are very vague to
them.
So can you tell us now what waters would definitely no
longer be regulated by the Federal Government under this
proposed rule?
Ms. Darcy. We have a series of exclusions that are defined
here, and if you would like, I can read those to you. It is
under section B1 of the definition of the rule. It is, waters
that are not going to be considered are wastewater treatments,
prior converted cropland, ditches that are excavated wholly in
uplands, ditches that do not contribute flow either directly or
through other waters to a water, and artificially irrigated
areas that would revert to uplands, artificial lakes. This
whole list. Do you want me to continue?
Mr. Shuster. So if the water somehow seeps into a body of
water that is flowing because of a flood or something
occurring, some extreme weather event occurs, will that enable
the regulators to change the definition of that ditch or that
pond to fall under the Federal jurisdiction?
Ms. Darcy. Congressman, if the water body contributes to
the flow of a tributary, then that would be considered a
jurisdictional----
Mr. Shuster. So we get a 100-year storm and floods with
typically irrigated field and a diversion ditch on a farm which
never really, it never flowed into the river that is close by.
If that event occurred, then, would that come under Federal
regulation?
Ms. Darcy. Congressman, it sounds as though you are
describing a flood event and the runoff from that flood event,
and that kind of runoff would not be considered a
jurisdictional water of the United States.
Mr. Shuster. When you talk about waste treatment--yes, sir.
Mr. Perciasepe. Just to add in, because I think this gets
at some of the potential need for continued dialogue. We are
using the term ``flood plain'' to try to get at the issue of
adjacency which has been in a number of the Supreme Court
cases.
But just because it is a flood plain doesn't mean it is
jurisdictional. It still would have to be a water in the flood
plain, you know, standing water or a wetland with the hydric
soils and the vegetation or an actual running stream through a
flood plain area. But the flood plain is an area that can help
identify, and that is what we are proposing to take comment on
that it is adjacent to the other traditional water.
So, I want to be really clear that the entire flood plain,
which may flood, is not jurisdictional and, in fact, I want to
remind that, agriculture is exempt from having to get permits
in that area regardless of whether it has got a wetland in part
of it.
So I wanted to just add to the Assistant Secretary's
comments on that.
Mr. Shuster. And, of great concern to me, because I have
seen it happen firsthand in Pennsylvania, where I just talked
about the Corps, we have a, I believe it is an EPA field office
up in State College Pennsylvania, that is staffed with, well,
used to be staff with, I don't know who is there today
presently, with people that are extreme environmentalists and
they will interpret the law differently than the folks in
Washington.
And I said with the Corps what is happening in Baltimore
versus what they do in Arkansas or other places of the country
doesn't conform to what the rule is necessarily. It is an
interpretation, and that happens, I think, I am willing to bet
that everybody in this room has faced that before where the
local office, whether it is the regional or the district
office, is looking at things differently.
And so how can you protect the stakeholders against that
occurring?
Mr. Perciasepe. Well, I will let Assistant Secretary Darcy
answer for the Corps, but we both have regional structures, as
you point out, and it is important for us to develop
consistency and predictability there. That is a high priority
for both of us, and we view the work we are doing in this rule
and when we get it finalized to help us provide that
consistency and predictability.
Mr. Shuster. Have you experienced that in the EPA where you
have seen regional directors look at something very, very
differently?
Mr. Perciasepe. Well, to the extent that we can
practically--I mean, there is always difference of opinions in
any organization. Our objective is always to try to reconcile.
Mr. Shuster. That is my point. What you are trying to do is
what we always try to do in Washington is a one-size-fits-all,
and then what you have is you have got differences of opinion
and that causes tremendous problems for people out there trying
to earn a living and farm the ground and run their businesses.
Mr. Perciasepe. You have hit the nail on the head of that.
We have to find a way to have enough predictability and
consistency so that there isn't vagaries of different opinions
all over the country. But at the same time, we can't be so
constrained, you know, in a one-size-fits-all world.
So what we are trying to do is get that right, so we have
definitions here and practice that will be established that can
deal with the different situations in the country.
Mr. Shuster. Well, and I know I have extended my time, but
just a final point, because I think Chairman Young made a very
good point, or a very good question, when he asked you, is
there one State out there that has said this is really good, we
embrace it? And I will let you finish answering the question.
Mr. Perciasepe. I am sorry about that before. I really
apologize. But let me just say draining a pond does not require
a permit, just, if I could have answered.
But filling it would require permit under the Federal law.
The State organizations have been very supportive, you know,
the Environmental Council of the States, some of the other
water organizations that represent State water. They have been
supportive as weave been building this, but we have yet to get
any specific comments on the rule from States.
So I can do a polling of them but I haven't done that
polling yet because we plan to do significant continued
outreach with them between now and when the comment period is
over, and I want to point out that we treat States differently
than normal commenters because they are coregulators with EPA.
So, we are going to be working with them differently, although
they will be submitting comments.
Mr. Shuster. Again, our DEP in Pennsylvania over the past
couple years hasn't seen eye to eye with the Corps or EPA, and
back when there was a different administration they saw eye to
eye. So again, a problem that we are going to face is this rule
is going to go into place with all these, there are a lot of
vague terms in there, and what is going to happen is these
stakeholders, and we are going to have them up next here, talk
about the damage it is going to cost them.
And again, to your point about you don't have to get a
permit to drain the pond, can you put that in the rule to make
sure we are clear on that? So when Chairman Young tries to
drain his pond he doesn't have to come get a permit.
Ms. Darcy. I think we can make that more clear.
Mr. Shuster. I yield back. Thank you, Chairman.
Mr. Gibbs. Mr. Perciasepe, just to make a comment. What we
are hearing from the State EPAs is that they are concerned
because they haven't been consolidated enough in this proposed
rule. So a point of information.
Mr. Nolan here, do you have questions?
Mr. Nolan. Yes. Thank you.
Thank you, Mr. Chairman, and thank you to the panel.
First of all, I would like to respond to my good friend of
over 40 years, Don Young, who is so shy and reticent about
expressing an opinion. I, too, have a farm, and we have a
little pond on it that my wife and I created. It is quite
beautiful, right alongside the house. I suspect that would not
be covered by jurisdiction and the courts have ruled that we
don't have unlimited control over those waters that are
navigable.
So we have a river, flows through my farm, as well, and the
courts have ruled that we have no right to dump toxic
substances and other things into that river that would be
harmful to people downstream. So with all due respect, to my
good friend, there are some constitutional restrictions and
limitations.
As to the proposed rule, I will reserve final judgment
until I have heard all the facts, but I do want to applaud you
to the extent that you do try to give us some predictability
and some consistency here. That would be very, very helpful to
many parties. I have a couple of quick questions. I will try to
be quick with them and please be quick with your answers so I
can get as many of them in as possible.
First of all, is I have a company that is talking about
investing $3 billion in my congressional district, and my
question of you is, how do you think that the jurisdiction that
is proposed in this rule, combined, you know, combined with
EPA's retroactive and preemptive 404 authority and action, how
do you think that impacts a company looking at making a rather
substantial investment?
Mr. Perciasepe. Well, I don't know if what they are
proposing is going to impact water or not.
Mr. Nolan. Pretty hard to do anything in Minnesota without
impacting water.
Mr. Perciasepe. So I am just going to say at a high level,
I think the Army Corps of Engineers through the permitting
process has authorized over 2 million permits and activities
under this section of law and 13 have been involved with the
so-called veto, which is essentially EPA designating a section
of water that can't have a discharge of the fill into it. So,
it is an extremely rare occurrence that that gets used, and
there is a significant amount of work and process that goes on
for it.
So, I would think in the normal realm of activities you are
talking about projects that go through the permitting process,
they get permitted, they may have to do mitigation, that is
some of what our economic analysis has shown, that there may be
some of that. But generally speaking, I don't see that as a
deterrent to business.
Mr. Nolan. Well, as someone who spent that last 32 years of
my life in business, I can tell you the prospect of that has a
very chilling, dampening effect on anyone considering any kind
of a substantial investment with regard to the Constitution. It
all raises the whole question of due process for companies in
that kind of a situation.
My next question is with regard with the trail systems,
snow mobilers, cross-country skiers, snow shoers and on frozen
water ways and wetlands that provide some multiuse recreational
opportunities for individuals. How would these regulations
impact them?
Ms. Darcy. I don't believe the proposed rule would change
the current status of what would be required under the current
law for those.
Mr. Nolan. Is that your understanding, as well?
Farmers continue to ask, who is ultimately in charge of
enforcement? The EPA? Army Corps? Who is going to do the
enforcement here?
Ms. Darcy. If someone has a Department of the Army permit
for an action and is in violation of that permit, it would be
the Army Corps of Engineers' responsibility to ensure that that
permit is being undertaken as agreed to, so it would be our
responsibility.
Mr. Nolan. Well, what if the EPA determines it is part of
their jurisdiction? I mean, who does the enforcement, then?
Mr. Perciasepe. Obviously, these things get very case
specific. We have somewhere in the vicinity of 30 to 40 cases
or so a year that we end up getting involved with, as well.
Mr. Nolan. Well, what do you do in those cases where, you
know, the Army Corps has one definition and the Natural
Resources Conservation Service has a different definition and
you are compliant with one and noncompliant with another? I
mean, what kind of methodologies or matters for resolving this
do you have in place?
Ms. Darcy. Could I just explain about the interpretive rule
that accompanies this proposed rule that deals with the
National Conservation Service regulations and practices.
We are exempting about 56 of those practices from any kind
of Clean Water Act permitting requirement in the interpretive
rule that we have put out at the same time as the proposed
rule.
So it would be the Natural Resources Conservation Service
and those local agents who would be responsible for assuring
that the practices undertaken by that farmer or silviculture or
rancher were being complied with.
Mr. Nolan. OK. And lastly, what kind of outreach do you
have planned to help get the word out of what, in fact, all
this is and isn't?
Ms. Darcy. We have conducted a number of conference calls,
webinars, over 64 to date since the issuing of the proposed
rule and will plan to continue to do that throughout now. Now
that this comment period has been extended, we may try to
increase those outreach efforts between now and then.
Mr. Nolan. And then my last question, we heard a lot of
questions here about the States, what do you think these
actions or how they will impact the ability the State and local
governments, to exercise their authority with respect to land
use management and planning?
Ms. Darcy. These jurisdictional determinations do not
impact their local authorities other than if they are looking
to do any kind of development in a water of the United States.
They would need to look to see whether that water is
jurisdictional and what sort of permit would be needed by the--
--
Mr. Nolan. Will they supersede State plans in any manner,
shape or form?
Ms. Darcy. Not land planning, no. That is local, planning
and zoning.
Mr. Nolan. OK.
Thank you, Mr. Chairman. I yield the balance of my time.
Mr. Gibbs. Mr. Crawford.
Mr. Crawford. Thank you, Mr. Chairman.
Assistant Secretary Darcy, you stated earlier in the course
of answering one of the questions that one of my colleagues
asked in the proposal we define, and you have also used
personal possessive pronouns. I am a little confused. Whose
proposal is this?
Ms. Darcy. It is the administration's proposal.
Mr. Crawford. The administration?
Ms. Darcy. Yes.
Mr. Crawford. So have you been working with the
administration to develop the proposed rule?
Ms. Darcy. Yes, EPA and the Corps of Engineers have
developed this rule together.
Mr. Crawford. OK. But this is ultimately, this an EPA
proposed rule, correct?
Ms. Darcy. No, it is the administration's rule.
Mr. Crawford. The administration is proposing now?
Ms. Darcy. Yes.
Mr. Crawford. OK. But you have been collaborating with the
Corps, I mean, with EPA rather?
Ms. Darcy. Yes, sir.
Mr. Crawford. OK. We are currently in the public comment
period, correct?
Ms. Darcy. Yes.
Mr. Crawford. Have you submitted public comment?
Ms. Darcy. No.
Mr. Crawford. OK. Do you intend to submit public comment?
Ms. Darcy. No, we intend to review the public comment with
the EPA.
Mr. Crawford. Collaboratively?
Ms. Darcy. Yes.
Mr. Crawford. OK. I was just a little confused by that.
Deputy Administrator, can you define a ditch? I just want
to get some clarity. I apologize if I am repeating myself, but
could you give me some clarity on what a ditch is.
Mr. Perciasepe. Well, I mean, what we have tried to do in
our proposal is make it clear that ditches that are built on
land that is normally dry and somebody puts a ditch through it
to drain it from rain or some other wet event and it has got
water in it sometime, that these are not covered no matter
what.
Mr. Crawford. OK. So here is the problem I have with that.
Mr. Perciasepe. OK.
Mr. Crawford. Ultimately, that ditch is designed to drain
water. It is going to drain into something. At some point it
drains into a body of water that is regulated and then
therefore becomes regulated; is that not correct?
Mr. Perciasepe. So the reason we are doing the rulemaking--
--
Mr. Crawford. I have only got 5 minutes. Is that correct?
Mr. Perciasepe. I understand, but let me answer, please. If
you just look at the definition of ``significant nexus,'' you
might start getting into those kinds of thoughts.
But, so what we did in the rulemaking is we specifically by
rule are excluding those no matter whether they meet a test or
not, and I think that is a key important factor.
Mr. Crawford. We had in the last 2 or 3 days in my
hometown, we have had about 14 inches of rain. Got a neighbor,
got a swimming pool, swimming pool overflows, can't handle too
much. Water flows into a ditch, ditch flows into a regulated
body of water. How far back, does that swimming pool become a
regulated waterway?
Mr. Perciasepe. It does not. It is not a wetland nor is
it----
Mr. Crawford. You don't think that is much of a stretch,
though, do you, I mean, to think that----
Mr. Perciasepe. No. I think it is a stretch.
Mr. Crawford. Do you really?
Mr. Perciasepe. We are----
Mr. Crawford. The ambiguity that I am hearing from all of
this is so great that I don't think that is a stretch at all.
Mr. Perciasepe. Artificial lakes, ponds, swimming pools,
they are specifically excluded. We are writing them in the
pool.
Mr. Crawford. Up to the point that they overflow into a
ditch that drains into a regulated body of water at which point
they become connected, correct?
Mr. Perciasepe. Go ahead.
Ms. Darcy. I would say that is not a significant nexus.
Mr. Crawford. OK. Well, I am not sold on that, but at any
rate, so what about flooded rice fields? At some point in time
they are going to drain into----
Mr. Perciasepe. Flooded?
Mr. Crawford [continuing]. Flooded rice fields.
Mr. Perciasepe. Rice fields are not included.
Mr. Crawford. Well, I think what is going on here is an
effort to create such ambiguity that you are given ultimate
regulatory authority on a whim; and that, there is really no
recourse for those folks that are affected and fining that is
going to come through, and farmers and other businesses the
cash flow that it is going to impact and there has not been any
economic analysis to address that.
And let me ask you one more thing about public comment.
Will you be entertaining public comments from other Federal
agencies?
Ms. Darcy. Yes.
Mr. Crawford. You will. And you think that is appropriate?
Ms. Darcy. Yes. Most rulemaking----
Mr. Crawford. Are they more heavily weighted than public
comment from, say, some of the relevant stakeholders in the
private sector?
Ms. Darcy. No, sir.
Mr. Crawford. Our friends at Farm Bureau, for example,
National Association of Counties, will they be given equal
weight, their public comments?
Ms. Darcy. Yes, they will.
Mr. Crawford. I think you will find when you hear their
public comments, and I would also echo the sentence of the
chairman, encourage you to stay around and hear their comments
and find that they probably agree with me that there is
significant ambiguity in this to cause great concern not just
in the agriculture industry, but to homeowners to business
owners and anybody that has even a view of water from where
they are standing.
So with that, I yield back.
Mr. Gibbs. I am going to take 14 of your seconds just for
clarification. We talk about the vagueness, the ambiguity. That
is what you are saying, but doesn't this open for citizens'
lawsuits, how they interpret the rule and litigation?
Mr. Perciasepe. Here is where we can work together. We have
tried to list these things specifically in the rule. Rice
growing is specifically listed as excluded. Normal agricultural
activities are excluded.
Mr. Gibbs. We will get into that later.
Mr. Perciasepe. So if we can, yeah, we expect to hear from
the stakeholders during this proposal and comment period time
if we have not done that enough here and then we can sit down
and talk to them.
Mr. Gibbs. OK.
Mr. Perciasepe. But our intention is to get it in here so
that----
Mr. Gibbs. We will talk later about this. The rest of this
Clean Water Act affects other than 404 permitting.
Ms. Edwards.
Ms. Edwards. Thank you very much, Mr. Chairman.
And thank you very much to our witnesses today and
especially for your honorable public service. I think there are
many of us in the public who really appreciate both the work of
the EPA and the Army Corps in protecting our water and making
sure that it is clean. So thank you.
I just want to clarify. The notice of the proposed rule was
issued on April 1st. My understanding is that, because you
heard from agricultural groups and other stakeholders that
there wasn't enough time to respond adequately to the rule,
that that--the response time for comments has been extended to
October 10th. Is that correct?
Ms. Darcy. Actually, it has been extended an additional 91
days till October 20th, because 90 days falls on a Sunday.
Ms. Edwards. Thank you.
So hearing from the stakeholders, you took that into
consideration and you have extended the rule----
Ms. Darcy. Yes.
Ms. Edwards [continuing]. The comment period? Thank you.
And then--so is it a surprise to you that you have not yet
heard formally from States whether they support or oppose the
rule because they haven't--there hasn't been a chance yet and
that it is probably preliminary to qualify, quantify or to
characterize the supporter opposition to the proposed rule at
this stage?
Ms. Darcy. I think that is correct.
Ms. Edwards. Thank you.
And then, Mr. Chairman, I have three letters to this
committee urging us--urging the Congress to enable the EPA and
the Army Corps to go through the process of the rulemaking
rather than create legislation that is unnecessary to respond
to what has been, you know, a very--you know, an environment in
which people have been quite uncertain about what it is that
their responsibilities are for permitting, and I would like to
introduce those into the record.
It is a letter from Trout Unlimited and 15 sportsmen and
conservation groups supporting the process and saying
themselves that they probably plan to submit comments.
Mr. Gibbs. So ordered.
Ms. Edwards. Thank you.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Edwards. I have a question, Mr. Perciasepe.
Can you describe the exemptions that exist in the act and
in your proposed rule for discharges associated with
agricultural activities.
And in the event that certain agricultural activities don't
qualify for an exemption, am I correct that the Army Corps has
a fast-track nationwide permit that authorizes an assortment of
discharges associated with agricultural activities that cause
the loss of less than half an acre of water bodies?
Ms. Darcy. Yes. That is our nationwide permit program, and
that is correct.
Mr. Perciasepe. Yeah. And I--just as a general matter, the
normal agricultural activities of--I mean, essentially, for me,
I could say, if you can--if you are on a piece of land and you
can plow it, plant it and harvest it, you--under--now you can
do it under this rule. There is nothing in here that is going
to change that.
Ms. Edwards. Thank you very much.
We recently enacted--in fact, the President just signed
yesterday our Water Resources Reform and Development Act, and
we included for the first time provisions that I have been
quite a champion of, using innovative green and low-impact
technologies.
We may hear testimony later that suggests that somehow
those green infrastructure activities would then fall under the
purview of this rule.
Do you have a sense of that?
Mr. Perciasepe. We don't believe that that will happen and
it is not our intent. And, of course, we are going to be
interested in comment on that.
But most green infrastructure that I am familiar with in an
urban setting is going to be built in a place that is normally
dry and you are moving drainage to it.
There are going to--there may be instances where somebody
wants to utilize an existing stream or a lake as part of that,
and then we would have to look to see whether that is part of
the waste treatment exemption or whether or not there would be
some--but, again, you don't have to worry about this unless you
are discharging fill or pollution into that water.
If you are not discharging pollution into the water, you
are--you know, you are not going--or fill, you are not going to
have to get a permit or be under this jurisdiction.
So we would think and it would--certainly is our intent
that drainage in an urban area for--and how it is altered to
have green infrastructure and low-impact development would not
become jurisdictional and would not be jurisdictional, just as
we were talking about ditches earlier. So----
Ms. Edwards. And so, obviously, those kinds of activities
are actually designed to filter the water, not to contribute to
the pollution.
Mr. Perciasepe. We absolutely want to encourage
conversation work on agriculture land and we want to encourage
low-impact development in urbanized areas, including green
infrastructure. Absolutely want to do that.
Ms. Edwards. Thank you.
And then, lastly, I understand the rule, if it is
finalized, would protect roughly 3 percent more waters than are
protected today, but almost 5 percent fewer waters than were
protected prior to the Supreme Court's 2001 decision.
Is that correct? And does that sound like an unprecedented
radical expansion to you?
Ms. Darcy. Those numbers are correct. And, in my view, it
is not a radical expansion.
Ms. Edwards. Thank you.
Mr. Gibbs. Mr. Denham.
Mr. Denham. Thank you.
Like the gentleman from Minnesota, I am also a farmer, but,
unlike him, I cannot hope and wait to see what you guys are
going to come up with. I can't take hope to the bank. And so I
am very concerned about this.
It affects the livelihood of our community, of our State,
the largest ag State in the Nation that is feeling some of this
pain already due to Army Corps and some of the challenges they
have already put on some of the fallowed fields that are now
having some water on those fields.
And I am concerned that this year, because of Government,
when water gets shut off to the Central Valley, 1 million acres
of farmland could be lost.
Now, it might rain next year and we may have with--the
fallowed fields may have some puddles that--or ponds that--or
even some streams that end up going through 1 million acres of
lost productivity, of lost jobs. So, yeah, I have got a lot of
questions about this.
Let me start with you, Ms. Darcy. Because of the ambiguity
of this rule, do you think it is going to encourage third-party
lawsuits?
Ms. Darcy. I actually think that this proposed rule will
bring additional clarity to the jurisdictional determinations
that are necessary under the Clean Water Act. So I think, with
additional clarity, there will be fewer lawsuits.
Mr. Denham. So you think that this new rulemaking will
create less lawsuits?
Ms. Darcy. I do.
Mr. Denham. And greater clarity?
Ms. Darcy. I do.
Mr. Denham. Now, the permits that are going to be
required--how long do you think it will take to issue a permit?
Ms. Darcy. Congressman, it depends on what the permit's
being asked for, that determines how much information we need
upfront for that particular permit. It does vary. It varies
from region to region.
We have individual permits. We have nationwide permits.
Nationwide permits usually go more quickly than individual
permits because individual permits usually require more data
and more information.
Mr. Denham. If it is an area of farmland that has been
historically farmed, but may have sat fallow for a year or two
and now is required to do a permit, how long do you think it
would take to do a permit?
Ms. Darcy. Congressman, what you have described would be
prior converted cropland. That is exempt from the Clean Water
Act.
Mr. Denham. Well, I will circle back around to you, because
I have got a number of constituents that have these very same
concerns today that are unable to farm, that are losing a
season of planting, that can't go back through and farm that
property and, again, seeing that job loss in our community.
Let me ask you about the Clean Water Act. In 1974, when
this was originally done, it was then navigable waters with
ebbs and flows--ebbs and flows of the tide. Now we are seeing
ebbs and flows on our riverbanks because of discharges from
Government forcing discharges.
What we see in the Central Valley are these pulse flows.
These pulse flows not only go down the river, but they overflow
into the farmland that is adjacent to it.
Sometimes it goes into the crops, sometimes forming a pond
or a puddle or a mudhole that now could be under this very same
thing.
So my question is both on navigable waters as well as
intrastate waters where now EPA and the Corps would have
jurisdiction over.
Ms. Darcy. Under current law, we have jurisdiction over
navigable waters.
Mr. Denham. Intrastate waters?
Ms. Darcy. Yes.
Mr. Denham. What about groundwater?
Ms. Darcy. No.
Mr. Denham. Mr. Perciasepe, you talked about pollution.
Is fertilizer a pollution?
Mr. Perciasepe. Properly applied, no.
Mr. Denham. Properly--what about pesticides?
Mr. Perciasepe. Pesticides require--have to be applied
according to label, and they would fall under a general permit
if they apply it on water.
Mr. Denham. So, again----
Mr. Perciasepe. But not in--not when a field is flooded, if
I can think where you are going. That would not be----
Mr. Denham. That is exactly where I am going. That is the
concern that a number of our farmers have.
Mr. Perciasepe. It would not change--that would not change
because a flooded field during--is not--is not jurisdictional.
Mr. Denham. Yeah. But if you fallow a field and you are
unable to plant for a year or 2 years or 4 years and a pond or
a small--something that is already covered under your own
definition now gets pesticides or herbicides or fertilizer in
it, that would be a pollutant; would it not?
Mr. Perciasepe. Boy. The general permit for pesticide
application under the Clean Water Act requires the avoidance of
spraying directly on waters. If there is a crop and you spray
on the crop, it does not need a permit--or it does not fall
under that.
Mr. Denham. So it would fall under that if you were
spraying your crop and it went into that water--even though it
is not into a river or a stream, but it was considered an
adjacent water on a farmer's field?
Mr. Perciasepe. Water on a farmer's field is not
jurisdictional.
Mr. Denham. Not if it is flooding.
But if it is accumulated water, it is under this
definition; would it not?
Mr. Perciasepe. I don't think so.
Mr. Denham. Well, then, why couldn't you answer Mr. Young's
question about a pond? I mean, we are talking about farmland
here.
Mr. Perciasepe. I would have answered Mr. Young's question,
but I didn't get a moment. That is all. I don't mean any--
anything by that. He could drain his pond if he wants to. It
doesn't require a permit from--under the Clean Water Act.
Mr. Denham. Thank you, Mr. Chairman. I have got a number of
other questions, but I will wait for the next round.
Mr. Gibbs. Ms. Napolitano.
Ms. Napolitano. Thank you, Mr. Chairman.
And I am glad that we have such great agencies that help
our communities, especially in California, where we really need
you.
Deputy Administrator Perciasepe, it was indicated that the
proposed ruling does not impact ephemeral waters that may exist
only when the rainstorms occur, especially like in southern
California.
But the concern specifically is, if the water that may fall
as rain is temporarily captured in groundwater retention areas,
would that water be classified as jurisdictional?
And this is really an important issue because of the
drought and the fact that we are trying every methodology to
capture more water and infuse it back into the aquifer.
Mr. Perciasepe. First of all, we explicitly make sure to
mention that groundwater is not included here. So--but, second,
there is no change from the existing law. So if it goes back--
--
Ms. Napolitano. Well, that is for groundwater. I am talking
about captured water for replenishment.
Mr. Perciasepe. Right.
So if this activity is currently going on, whichever way it
is, we are not changing any existing jurisdiction in that
regard. So we want to encourage, you know, good capture and
recharge.
Ms. Napolitano. Well, there is so little rainfall in
California, the episodes may be very few and far between.
Mr. Perciasepe. Yes. I think both of us are pretty familiar
with the----
Ms. Napolitano. Thank you.
And, also, does the wastewater exemption clearly include
water recycling projects? Is there or should there be a clear
exemption granted for water recycling projects, especially in
the Western States where the drought is so critical?
Mr. Perciasepe. So we don't think water recycling projects
that are existing today are covered, and we are not trying to
change that.
But--so if it is not regulated today, it won't be regulated
under this rule. But if your folks have comments on this so
that we can be clear about that, we would work on that.
Ms. Napolitano. Well, we certainly do hope that we would be
able to clarify that, because this is one of those issues that
is not going to be ignored in southern California or in
California or the Western States.
The other area that I have a concern about is the
stormwater discharge regulations that are going to be imposed
on communities by EPA.
Mr. Perciasepe. Stormwater?
Ms. Napolitano. Yes. The discharge going into the
stormwater and catch basins going down to the ocean.
Mr. Perciasepe. So under another part of the Clean Water
Act, areas that have stormwater runoff are required to get a
permit and--under the--under section 302 of the Clean Water
Act.
And most of them have those permits that require either
green infrastructure or some other maintenance activities to
make sure that pollutants are minimized, but there is no change
to that in this rule.
Ms. Napolitano. OK. Well, I may want to clarify that later,
if I may----
Mr. Perciasepe. OK.
Ms. Napolitano [continuing]. Because there is an issue that
some of the cities have raised concern--it is an unfunded
mandate for them to be able to ensure that nothing--no
contaminants go into the drain systems for stormwater release.
Mr. Perciasepe. OK. We are--I am happy to follow up with
you on that, but we are not trying to change the stormwater
rules in this regulation. But if there are issues with
stormwater, I would--I would----
Ms. Napolitano. If you wouldn't mind, yes.
And I certainly want to thank Ms. Darcy. Your folks are
tremendous in my area. They work with all my agencies, and we
have been able to clarify and work forward on many of the
issues that have--issues in my area.
Thank you, Mr. Chair. I yield back.
Mr. Gibbs. Just some housekeeping.
I ask unanimous consent that Mr. Duncan from Tennessee, who
is not on this subcommittee, be included at today's hearing.
Without any objection, so ordered.
Mr. Mullin.
Mr. Mullin. Thank you, Mr. Chairman.
And thank you both for being here. I know we have met
actually on separate occasions, not always on the best terms,
but we are all fighting for the same thing, hopefully, this
country and the right to still be entrepreneurs.
I think what the biggest fight is here, though, is that we
see, as business owners, as farmers--as I sit in front of you,
I am farming the same land that now is the fourth generation.
And it seems like every time we turn the corner what we are
doing is we are asking more and more permission to just simply
do the same job that we have always done.
I think you are going to find it very hard to find somebody
that has got more interest in their water than the person that
is on that land since before statehood, but the way the
definition is written with navigable waters, I am finding it
very hard to understand, ma'am--and maybe you can clear it up
for me--how a stream gets into that.
I may be just a simpleminded individual from Oklahoma that
has been blessed enough to be able to be a congressman.
Navigable waters would be at least something you could put a
canoe on.
Ms. Darcy. Congressman, navigable waters, since the
inception of the Clean Water Act, had a great deal of attention
and litigation as well as court decisions.
Mr. Mullin. I am well aware of those. But I am just trying
to figure out why you guys feel like you have to come out with
clarification when it is pretty clear itself and what we are
doing is we are going farther up the streams and making a
definition even more confusing and we are taking rights away
from the States.
Sir, you had made a comment that you said the State water
boards, you felt like, was on board with you, if I understood
that. Because the question that the chairman and Congressman
Young had asked you was what States support you, and you made a
statement that the water boards of the States support you.
Mr. Perciasepe. I said that the--some of the organizations
that represent States, their water--water associations have
supported doing a rule.
Mr. Mullin. Who?
Mr. Perciasepe. We don't have----
Mr. Mullin. Because I have got our--the gentleman from
Oklahoma that is going to be testifying on the second panel,
and no one contacted them.
So who is it that you said is supportive of you?
Because if we are--if we are going to try really taking in
the waters and having the best interests of the landowners, the
people who pay the tax to own that land, the people who live in
that State, wouldn't you think you would take the time to
comment before you made this, not requiring them to come out
afterwards and make comments?
I find it almost laughable when you guys are going to have
these comments out, which really isn't going to have that much
impact. You might add a thing or two, but the rule is already
out.
You have already made your mind up what you are going to
do; otherwise, you would have consulted them beforehand. Is
that not correct?
Mr. Perciasepe. We did talk to States. I can't say we----
Mr. Mullin. Who?
Mr. Perciasepe [continuing]. Talked to every State.
Well, here is a list of State associations who have asked
us to do a rulemaking. They don't necessarily support this
rulemaking yet because we don't know what their position is yet
and we are going to work with them before we finalize.
Mr. Mullin. Then, you should have had that before you went
out with it. That is what I am trying to understand.
Now, let's go back to the farming just for a second. The
way I read this is you guys are going to except existing
permits. It is not going to change existing permits. Is that
not correct, ma'am?
Ms. Darcy. That is correct.
Mr. Mullin. OK. So, now, what about that existing permit?
What happens--does it stay with the land or does it stay with
the holder of the permit?
Say my--say my father--which I am not hoping he does, by
any chance--but say my father owned the permit and he passed
away and it had be transferred to myself. Is that considered an
existing permit still yet?
Ms. Darcy. If it is applied to the land that it was
permitted on. But if you are talking about----
Mr. Mullin. But the land has essentially changed hands; so,
the permit will change hands, too.
Ms. Darcy. I believe it goes with the land.
Mr. Mullin. You believe? Because it doesn't read that way.
Ms. Darcy. Well, then, that clearly----
Mr. Mullin. It doesn't read that way at all, and there
needs to be clarification on that. Because I can tell you I
have read it and the way I read it is that every time we lose a
generation and a farm changes hands--which you know farms are
generational--we are going to lose farms as they happen--as
this happens.
Ms. Darcy. Congressman, most agricultural practices are
exempt from the Clean Water Act.
Mr. Mullin. Most. Ma'am, there are still permits because
you had enough worry about it that you put in it that--existing
permits, existing permits. You--the--it specifically says
existing permits.
So we keep using this, that most are exempt. Actually, what
was first said was--sir, you said that all ag is exempt. Now we
are to most.
Mr. Perciasepe. All normal agricultural activities.
Mr. Mullin. Normal. What is considered normal?
Mr. Perciasepe. Sir, the plowing----
Mr. Mullin. Because what I do is plowing.
Mr. Perciasepe [continuing]. Is considered normal.
Mr. Mullin. You guys already came into my land and said we
couldn't spread chicken litter anymore. That was on my
property.
You guys came in on my property and said we couldn't spread
chicken litter anymore, effectively killing the chicken
industry around for the small business owners. So I don't want
to hear that anymore about normal.
Normal is what? How many farms have you been on? How many
times have either one of you guys worked on a farm?
Mr. Perciasepe. I went to an ag college, sir.
Mr. Mullin. What is normal in Washington, DC, sir? There
isn't one thing in Washington, DC, that is normal, not one.
Mr. Perciasepe. Well, I am not talking about----
Mr. Mullin. So I don't want to hear the normal. What I want
to know is how are we going to protect generational farms.
Ms. Darcy. Congressman, if there is ambiguity in the
proposed rule about existing permits and how they will be
transferred between either the current permit holder or the
future of that land, I think that is something we need to
clarify.
Mr. Mullin. Yes, we do. Please, if you could, get with me
on some clarification language on that. Thank you.
Mr. Gibbs. Mr. Garamendi.
Mr. Garamendi. It is interesting that we ended with chicken
manure.
Mr. Perciasepe and Assistant Secretary Darcy, I personally
thank you for your efforts to clarify a longstanding
controversial issue that has been with this country for well
over 40 years now, and that is the application of the Clean
Water Act.
You have had a very, very difficult task. Because of the
Supreme Court interpretations of the law, you have been left
with the necessity to provide clarification.
And it is my understanding that this effort, this proposed,
proposed, rule, is a result of the necessity to clarify the
application of the Clean Water Act.
If I am correct, would--am I correct? And could you briefly
describe--very briefly describe how it is that we came to this
proposed rule and its purpose.
Ms. Darcy. Congressman, the purpose of the proposed rule is
to clarify the ambiguities, many of which resulted from the
Supreme Court decisions and the Supreme Court directing us to
develop a rulemaking for this purpose.
We coordinated between the agencies, EPA and the Corps of
Engineers, to develop what we think is a proposal that will do
just that, to give people clarity, hopefully, more efficiency
in this permitting program, and the ability for people to know
what is jurisdictional and what is not.
Mr. Garamendi. So the purpose and the goal is to provide
clarity?
Ms. Darcy. Yes, sir.
Mr. Garamendi. Apparently, that has not yet been achieved,
at least among the members of this committee and a good portion
of the public.
How are you working now, beyond explaining to this
committee, the process of achieving clarity? We are in the
midst of a rulemaking. Can you describe to all of us what you
would expect the public to do if they believe there is
uncertainty in your regulation.
Ms. Darcy. Through the public comment period, which now
goes until October 20th, we would anticipate that concerned
citizens who have comments on this rule, whether it is not
clear enough or the definitions aren't what they believe to be
representative of how we should be regulating waters in the
United States, we anticipate that to come through the public
comment process via the Web site set up for public comment.
We also are having webinars and conference calls with
interested stakeholders and groups around the country to get
their input and get their comments that way as well.
Mr. Garamendi. Mr. Perciasepe?
Mr. Perciasepe. Well, we are also doing more--we are also
doing additional specific outreach. And I think one of the
things we are developing now with the extended time period is
additional, more focused outreach as well.
We have met with a lot of people. We have a round table
with Small Business--with the Small Business Administration
coming up on June 24th.
We are going to have a specific project--process with our
co-regulators at the States in terms of the implementation of
the Clean Water Act.
Because once you decide where it is jurisdictional, all the
implementation--a lot of the implementation takes place at the
State level as well.
So we expect to have quite a bit of additional outreach
through the summer.
Mr. Garamendi. OK. Does your Web site provide specific
opportunities for various locations in the country for people
that are concerned about the lack of clarity in the rule to
make comments?
Ms. Darcy. Yes.
Mr. Garamendi. OK. Can you provide to the committee those
specific sites and locations?
Ms. Darcy. Yes, we can.
Mr. Garamendi. And efforts that you are making to reach out
to agriculture, chicken growers or whomever, as well as--I
don't know--wastewater and drainage systems across this--across
the Nation.
Finally, I just--it is important that we understand that we
are in a rulemaking process. You have proposed a rule. Is it
the final rule?
Ms. Darcy. No, sir.
Mr. Garamendi. OK. You--are you committed to listen
carefully to the objections, some of which you have heard here
today, others of which I suspect you will hear in your process,
to take them into account and to modify, where appropriate, the
ambiguities and to clarify? Is that your commitment, to do
that?
Ms. Darcy. Yes.
Mr. Garamendi. Mr. Perciasepe?
Mr. Perciasepe. Yes, sir.
Mr. Garamendi. OK. And you are representing both the Corps
of Engineers and the EPA. Is that correct?
Ms. Darcy. Yes.
Mr. Perciasepe. I am EPA. She is the Corps.
Mr. Garamendi. I got it.
Now, it is important for all of us to realize where we are
in this process. You know, I have got a lot of folks in my
district.
I have a large agricultural district. I have got plenty of
water, like 200 miles of the Sacramento River Valley, including
the river, and a lot of questions.
When my constituents come to you with--asking for
clarification, will you listen to them and will you take that
under advice and, if appropriate, make modifications?
Ms. Darcy. Yes, sir.
Mr. Garamendi. Now, finally, clarification is one thing.
There is the law and there are certain thresholds that you will
have to follow, I suspect.
That then becomes a court question, is that correct, a
question for the court to answer?
Ms. Darcy. As to whether the rule complies with the
underlying law? Yes, ultimately.
Mr. Gibbs. Your time's up.
Mr. Garamendi. Mr. Chairman, thank you very much.
Mr. Gibbs. Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman.
Thank you both.
I do want, Ms. Darcy, to give you a chance to respond in
terms of those permits that supposedly transfer. I assume you
have counsel here. I would give you a chance to revise your
statement because I can tell you, from real experience, I don't
think that your testimony was accurate.
If you have got counsel in terms of if there is a transfer
of lands, transfer of permit, you know, perhaps you want to do
that.
Is that your counsel leaving?
Ms. Darcy. No.
Mr. Meadows. OK. All right. Well, you can get back to the
committee.
Ms. Darcy. OK.
Mr. Meadows. I have got limited time. But it is not
accurate, and I would just encourage you to get together and
perhaps change that. But let me go on.
Ms. Darcy. As I responded to Congressman Mullin, that if it
is not clear, we need to make it clear. And maybe I need to be
clear.
Mr. Meadows. Well, it is clear that it doesn't transfer.
And so--and your counsel's nodding his head ``yes.'' So I would
just encourage you to revise your statement.
The other part of that is we are implementing these rules
for the health and safety of the American people. Is that
correct?
Ms. Darcy. Yes.
Mr. Meadows. OK. So, Mr. Perciasepe, do you have adequate
funding to make sure that the current rules and regulations
that we have are implemented and carried out to provide for
that health and safety, current funding? Yes or no? Do you have
adequate funding?
Mr. Perciasepe. Yes.
Mr. Meadows. For the current regulations?
Mr. Perciasepe. The current--the one on the books?
Mr. Meadows. Everything that is on the books, without a
change.
Mr. Perciasepe. Yes.
Mr. Meadows. So everybody should be safe today?
Mr. Perciasepe. I am not exactly sure what--I mean, we
implement a lot of different laws that Congress has passed,
but----
Mr. Meadows. OK. Well, let me go on further, then.
With this rule, any rule that an agency makes is really for
the sole purpose of carrying out the intent of Congress' law.
Would you both agree to that?
Ms. Darcy. Yes.
Mr. Meadows. OK.
Mr. Perciasepe. Yes.
Mr. Meadows. So since the administration came up with this,
at what point did someone in the administration realize that
the intent of Congress under a previous law was not being
carried out?
Who made that decision, that the original intent of
Congress when they passed the Clean Water Act is not being
carried out? Who made that decision?
Ms. Darcy. Well, the purpose for doing this rule is to
provide clarity on what we think, as a result of the Court
decisions, we needed to do.
Mr. Meadows. OK. So it is your agencies that decides the
intent of what Congress originally passed as law?
Mr. Perciasepe. Well, let me just----
Mr. Meadows. Because I am a--I am part of a body of 435
people, and every day I am confused as to the intent of this
body.
So it is amazing how somebody at your agency could figure
out what the original intent of those who passed the law would
be.
Mr. Perciasepe. I think what is--what we were responding to
is decisions that were made in the past that went to the
Supreme Court.
And the Supreme Court has a number of different positions
or opinions that they have issued, and what we have done,
looking at those opinions of the Supreme Court which have come
out in the last decade, that the existing regulations that we
had on the books from the 1970s need to be modified.
Mr. Meadows. All right. So you are ignoring Justice Alito's
concurring opinion, then, because he said that, really,
Congress needs to clarify what the waters would be. And so you
are taking Justice Kennedy's sole opinion and ignoring the
other four justices?
Mr. Perciasepe. Well, I----
Mr. Meadows. So who is----
Mr. Perciasepe. I believe--I believe the chief justice has
opined on the fact that the--that the executive branch should
do something about this.
Mr. Meadows. And that Congress needs to weigh in as well.
Mr. Perciasepe. No. I think Justice Roberts said the--that
the executive branch----
Mr. Meadows. So you are taking----
Mr. Perciasepe [continuing]. Has had an opportunity to do
that.
Mr. Meadows. So you are taking Justice Kennedy's and
Roberts' opinion?
Mr. Perciasepe. Well----
Mr. Meadows. OK. I think my point is made.
And, really, the whole point is that Congress should be the
one that is fixing that, not administrative law, because I am
very concerned that you continue to make rule after rule after
rule and arbitrarily decide what is good for the American
people when there are 435 in this body--elected officials--to
make that decision. Would you not agree?
Mr. Perciasepe. I don't agree that it is arbitrary, because
I think we interpreted the law that Congress passed in 1972. We
put out those rules back in the 1970s.
Those are the rules that the Congress--the Supreme Court
never said they were unconstitutional or the law that the
Congress passed was unconstitutional. They just said----
Mr. Meadows. So you just passed----
Mr. Perciasepe [continuing]. The executive branch----
Mr. Meadows [continuing]. Unclear rules and we are just
clarifying it, is what you are saying.
Mr. Perciasepe. Well, people brought a case and it went to
the Supreme Court. The Supreme Court said we should modify.
Mr. Meadows. Let me close because I am out of time.
A little over 30 days ago I brought up with you, Mr.
Perciasepe, an issue with contamination in my district. I have
yet to hear from you. Have you checked into all of that?
We have gotten no response from you. And if you are really
concerned about the health and well-being of the American
people, I would have thought that a followup phone call with
egregious violations within the EPA would have been
appropriate. Wouldn't you?
Mr. Perciasepe. Yes, sir.
Mr. Meadows. OK. When can we expect a response from you and
get that cleaned up?
Mr. Perciasepe. You will get a--you will get something from
me before the end of the week.
Mr. Meadows. Thank you, sir.
I will yield back.
Mr. Gibbs. Mr. Jolly.
Mr. Jolly. Thank you.
Assistant Secretary Darcy, you mentioned that this was the
administration's proposal. Is that correct?
Ms. Darcy. Yes.
Mr. Jolly. Who else within the administration has had input
on this?
Ms. Darcy. Well, it was developed with EPA and the Army
Corps of Engineers.
Mr. Jolly. I understand that.
But you--you deferred, then, to call it the
administration's proposal.
Has somebody from the Domestic Policy Council been involved
in the creation of this proposed rule?
Ms. Darcy. No. But the Office of Management and Budget has
reviewed the proposed rule.
Mr. Jolly. From a policy perspective, has anybody from the
White House been involved in this proposed rule?
To refer to it as the administration's proposal is an
interesting choice of words. It is as though you deferred some
of the responsibility of this to the administration
collectively as opposed to just the EPA or the Corps.
Ms. Darcy. We are part of the administration. So as I have
stated, this has been also reviewed by the Office of Management
and Budget, which is an arm of the President and an arm of the
administration.
Mr. Jolly. To the extent of your knowledge, was the
Domestic Policy Council involved at all in the proposed rule?
Yes or no?
Ms. Darcy. I don't believe so.
Mr. Jolly. OK. Is that your understanding as well, Mr.
Deputy Administrator?
Mr. Perciasepe. I can't know specifically. But when we do a
rulemaking jointly or individually as agencies, it goes through
an interagency review under an Executive order that has been in
existence since many, many administrations ago.
And in that interagency review run by the Office of
Management and Budget, all the agencies get a chance to
participate and comment on proposals before they go out as a
proposal.
So I don't have the details on everybody who may have
responded or put input into that, but it--opportunity was
availed to every agency.
And we actually did some work with the Department of
Agriculture to try to clarify conservation practices that would
be not--be clear that they are not falling--they would not be
affected by this rule.
Mr. Jolly. So in drafting the proposed rule, was there any
contribution of language from the White House?
Mr. Perciasepe. I don't have any specific information. I am
put--you know, interagency includes the Department of Energy,
everyone else.
Mr. Jolly. OK. So you also mentioned that this is a result
of some confusion from the Supreme Court decision. Is that
correct?
Ms. Darcy. Yes.
Mr. Jolly. OK. You seem to rely on Justice Kennedy's
significant nexus definition, though, as having provided some
clarity.
Why the need to expand on his definition? Why not just take
it as written, if you are relying on that?
Mr. Perciasepe. Well, I think in our definition we did
include significant language from Justice Kennedy, but we also
recognized that some--we wanted to make it clear that some--in
addition to that, we wanted to make it clear that some
activities and waters were not going to be included.
We talked about the ditch already. So we wanted to clarify
that in the rulemaking, that, you know, dry--ditches that are
in these--roadside ditches types of ditches would not be
included----
Mr. Jolly. OK.
Mr. Perciasepe [continuing]. As an example, or groundwater
or any number of other things. So were not specified in his
definition.
Mr. Jolly. The curiosity is because, Assistant Secretary
Darcy, in your written testimony today, you refer to the
confusion created by regional application.
And I find your written testimony interesting because it is
as though the Corps embraced regional decisions as being
closest to the community, best understanding the issues of the
community following SWANCC and Rapanos, and, yet, now either
the Corps, the EPA or the administration broadly is stepping
away from that regional application, because in your written
testimony it is now suggesting that what was the answer, to use
regional application, actually created confusion, and that is
now why you are issuing this.
Ms. Darcy. Well, there will be regional distinctions
between other waters, but in order to have more clarity
overall, I think that the clarity that this rule will provide
will give direction to each of our regions as well as our
divisions and our districts about how to apply this overall.
Mr. Jolly. OK. And the last question.
Part of the efficiency it says that you will be creating is
by reducing documentation. Can you explain that.
I think that is the heart of the concern of a lot of people
who have concerns within their district, that now this will be
a less-documented, less-justified, less-explained
decisionmaking authority coming from Washington and, in fact,
the regional office will now have less ability to address
specific regional concerns.
Ms. Darcy. An example of less documentation would be in the
instance of the definition of tributaries, that people will now
know that a tributary is a jurisdictional water of the United
States.
Previous to this rule, there were instances where we would
have to go out on the ground to make a determination as to
whether a tributary was actually a navigable water.
So, in this instance now, we have defined tributary so an
applicant or the Corps will not have to go out and look and
say, ``OK. Yes. It is a tributary.''
So that is one piece of the documentation that will be
alleviated by this rule.
Mr. Jolly. And you are confident that streamlining is a
better system?
Ms. Darcy. I do. I do.
Mr. Jolly. All right. Thank you very much. I appreciate it.
Mr. Gibbs. Mr. Rice.
Mr. Rice. I want to thank you all for being here today.
I have certainly learned a lot. I think the problem here is
just the expansion of the--of the bureaucratic authority here
and the stifling effect it has on our economy and our freedom.
And I wasn't here in 1972, but I sure think we are
regulating as waters of the United States things that would not
have been considered in 1972.
And everybody's very fearful that this new rule is an
attempt at further expansion, and particularly with the
administration's expansion of environmental protection in other
areas currently.
I look at this list of--I take it the purpose of this rule
is to more clearly define what the waters of the United States
are. Correct?
And then I am looking at the proposed definition here, and
there are six defined categories. And then, on the seventh, it
says, ``On a case-by-case basis, other waters, including
wetlands, provided that those waters have a significant nexus
to a water defined in paragraphs 1 through 3 of this section.''
And then, as you said earlier, the word ``significant'' is
defined. And it says, ``The term''--you know, that is where
the--that is where the play comes in here, what does
``significant'' mean.
``The term `significant nexus' means that a water,
including wetlands either on or in combination with other
similarly situated waters in the region, significantly affects
the chemical, physical or biological integrity of the water.''
Is that correct?
Ms. Darcy. Yes.
Mr. Rice. All right. So you are defining ``significant'' as
whatever is significant. Right? You are saying that it has to
have a significant connection. It has to have a significant
effect.
Ms. Darcy. Yes.
Mr. Rice. Well, how does that clarify the rule, I mean, at
all? Who determines--who determines what significant effect of
chemical, physical or biological integrity? Who makes that
determination?
Ms. Darcy. That would be a determination that would be made
by a regulator on the ground.
Mr. Rice. So either the EPA or the Army Corps. Right?
Ms. Darcy. Or the Army Corps.
Mr. Rice. So what you are saying, then, is that a Federal--
federally controlled body of water is anything that we
determine is significant?
Ms. Darcy. It has----
Mr. Rice. That is very clearly what this rule says. And
even if you don't read it that way, other people get involved
in this, other groups get involved in this, and they want this
enforced to the letter of the law. Am I correct? These outside
groups can bring lawsuits based on this proposed rule. Right?
Ms. Darcy. Yes.
Mr. Rice. So----
Ms. Darcy. Well, the final rule.
Mr. Rice [continuing]. If they determine that it has some
significant effect, then they can hold up commerce, they can
invade our freedom further. I mean, that is the way I see this.
Here is what worries me. All this expansion of authority
absolutely affects commerce. The people making these decisions
have no skin in this game. There is no cost to them.
And what I worry about is we make ourselves less and less
competitive in the world with every one of these additional
rules, and I don't see this rule clarifying anything.
I mean, you are saying a water is federally controlled if
it is significant and it is significant if we determine it is
significant. So I don't see that clarifies anything. And that
goes right to the crux of the rule.
So here is my question to you. Do y'all have kids?
Ms. Darcy. No.
Mr. Perciasepe. I do.
Mr. Rice. OK. You got kids? You got grandkids?
Mr. Perciasepe. Not quite yet. My daughter's getting
married next week.
Mr. Rice. Here is what I am worried about--because I have
got kids, too. I am worried that, when these kids get out of
college--because we are telling them, ``Go to school and get a
great education''--your grandkids get out of college, that we
are going to so stifle our economic freedom here that there is
not going to be anything for them.
I am worried that they are going to have less quality of
life rather than better quality of life because of these rules.
I think, you know, everybody certainly wants to protect our
groundwater, but I think we have gone so far in doing this that
the marginal cost is so much greater than the marginal benefit.
And I would hope that, when you actually--OK. I hear you
say, ``These aren't final rules. We are just putting this out
for discussion.'' Well, my opinion is this doesn't clarify
anything. I think my office could come up with a better draft
than this.
Mr. Perciasepe. Can I just add a couple of points?
Mr. Rice. Sure.
Mr. Perciasepe. Because I-- you are on to the issue we are
trying to deal with. And I just want to point out that earlier
on in the definition section it says notwithstanding whether
they meet the terms of the following paragraphs, including
number 7, these things are excluded.
And so it has a list that we have talked about a number of
times already, you know, some of the ditch issues----
Mr. Rice. OK. You have specifically excluded a few things.
I understand that.
Mr. Perciasepe. So then, when you get into the rivers and
the streams, the--there is a--there is a definition in here
that, if it doesn't have a normal bank--and these are defined
in the science of hydrology--a bank or a streambed or a high--
ordinary high water mark, then it is not included.
So the--if it--so, at some point, you know, whether--there
has to be enough water occasionally in there. You know, even
seasonally, it is even--even--you know, all the members of the
Supreme Court pretty much agreed with there is a seasonal
component to this.
So there are--and for it to be a wetland--somebody was
mentioning earlier about water flowing out of a pool and across
the yard and into something else. Well, if it isn't a wetland,
if it doesn't exhibit the hydric soils or the----
Mr. Rice. Look----
Mr. Perciasepe. But I am just pointing out that there are
other factors that are involved as to whether or not----
Mr. Rice. OK. And here is--just from a big-picture
perspective--and I am way over my time--I understand other
factors and exclusions and all that, but here is where we are.
It takes 15 years to get permission to dredge the Port of
Miami, which has been dredged umpteen times before. It takes--
is going to take 5 years to get permission to dredge the Port
of Charleston, which has been in a constant state of being
dredged for the last 20 years. It takes 10 years to get
permission to build a road.
We can sit here and dance on the head of a pin for days,
and it doesn't change the fact that our regulatory expansion is
completely out of control and we need to be reining it in
rather than continuing to grow it.
Thank you very much.
Mr. Gibbs. Mr. Webster.
Mr. Webster. Thank you, Mr. Chairman, for having this
hearing.
I do have one question of EPA.
How is EPA planning to distinguish between groundwater and
shallow subsurface connections?
Mr. Perciasepe. First of all, I----
Mr. Webster. I mean, I am asking that because Florida is
kind of a--it is a unique State in a lot of ways. I mean, most
of Florida is a wetland and the water is close to the surface.
Anyway, what do you think?
Mr. Perciasepe. We are trying to stay out of groundwater
with this rule. So if we are not achieving that, that is--I
hope we will get some comment on that, because we are trying to
exclude groundwater from being considered.
We are also trying to make sure that, you know, drainage is
not included as well. So----
Mr. Webster. But in staying out of it, don't you have to
distinguish between the two?
Mr. Perciasepe. I--I--well, one--you are talking about a
constructed underground system? I am not----
Mr. Webster. Well, just--there is shallow subsurface
connection, and I assume that that is not the same as
groundwater.
And what I am asking is: Will there be some sort of
distinction between the two?
Mr. Perciasepe. There--there obviously is. I am just going
to read from the definitions. ``Excluded from this is
groundwater, including groundwater drained through subsurface
drainage systems.'' That is excluded. So there----
Mr. Webster. So would--would pollutants introduced into a
shallow subsurface connection be in need of a permit in order
to do those discharges?
Mr. Perciasepe. I don't know the--it would be improper for
me to try to answer, not knowing the issues.
I mean, you can inject--you can inject things into the
ground for disposal, but it does require a permit under the
Safe Drinking Water Act.
If you are disposing pollutants or other things into the
ground, there are--there are--there are places that do this all
over the country, but they--they do require a permit under the
Safe Drinking Water Act.
Mr. Webster. OK.
Yield back.
Mr. Gibbs. Mr. Massie.
Mr. Massie. I just want to start with a commonsense
question. I think it is common sense. This comes from my
homebuilders.
But, first, let me ask: What is the cost of implementing
this new rule? Just quickly give me a range.
Mr. Perciasepe. We--our economic--our draft economic
analysis, which is out for public comment, estimates between--I
can look up the exact numbers, but somewhere between $100
million and $200 million.
Mr. Massie. $100 to $200 million.
So are my homebuilders going to have to get more permits or
fewer permits after this rule?
Mr. Perciasepe. This is based on----
Mr. Massie. Or do the permits just get more expensive?
Mr. Perciasepe. This is based on the observation that
Assistant Secretary Darcy said earlier, that when we went back
and looked at the jurisdictional determinations made under the
2008 guidance, we saw that maybe about 3 percent would
increase.
Mr. Massie. So you are going to increase the jurisdiction
of the EPA and the Army Corps of Engineers?
Mr. Perciasepe. No. These would be because of the----
Mr. Massie. And so that is going to lead to more cost.
Here is my commonsense question. There is a whole industry
that tries to deal with these regulations, and I know you spend
a lot of your time and resources and money, which is taxpayer
money, trying to protect the environment and our waterways.
Wouldn't it be more effective just to set the guidelines
for the homebuilders to follow and not require them to get
permits?
Wouldn't that be more cost-effective, to go back to the
fundamental principle in this country that you are innocent
until proven guilty?
Why don't we assume that they are good actors until you
find out otherwise? Why does everybody have to ask ``Mother,
may I?'' to the EPA and the Army Corps of Engineers if they
just want to build a home for somebody?
Mr. Perciasepe. Well, I would--I would say that, if--well,
first of all, we don't expect the jurisdiction to--we are----
Mr. Massie. I am done with that question.
Mr. Perciasepe. OK.
Mr. Massie. What about the idea of just----
Mr. Perciasepe. The permit----
Mr. Massie [continuing]. Saying the rules and, if the
homebuilders abide by the rules----
Mr. Perciasepe. The permit that they would need would be
the authorization to discharge pollutants or fill into the
water.
Mr. Massie. Yeah. I mean, I don't----
Mr. Perciasepe. And if they don't--if they don't do that--
--
Mr. Massie. The question here is: If they don't discharge
pollutants, why do they need a permit?
Mr. Perciasepe. They don't.
Mr. Massie. OK. So why are my homebuilders waiting for
permits?
Mr. Perciasepe. Because they want to--they want to fill
in--I am guessing because they want to fill in----
Mr. Massie. But their fill is not going to cause pollution;
otherwise, you wouldn't give them a permit.
Mr. Perciasepe. No. The Clean Water Act defines ``fill'' as
a--as a----
Mr. Massie. OK. But why----
Mr. Perciasepe [continuing]. Requirement----
Mr. Massie. If that fill is not harmful and you set up the
guidelines and they abide by those guidelines, why do they need
a permit?
I am just--what I am testing here is the whole assumption
that you are--that I think has been promulgated here, is that
these guys are bad actors and you need to rein them in and they
have got to get your permission before they can do anything.
Mr. Perciasepe. We don't think they are bad actors. We
think they do amazing things.
Mr. Massie. I don't think they are either. They are
building homes, but they can't do it in my district because
they are waiting months for permits and some of this is not
even developable.
I want to go to Agriculture here. Why did you seek to
narrow down to 56 the number of agricultural farming practices?
Why can't we just assume the farmer knows how to farm?
Ms. Darcy. Congressman, in the interpretive rule that
accompanied this proposed rule, we worked with the Department
of Agriculture and the Conservation Service to list 56
practices that are currently on the table----
Mr. Massie. So you are working with organizations in
Washington, DC. That is great.
But why don't we trust the farmers back home that they know
what the practices are and assume there might be more than 56
things you have to do to farm?
Ms. Darcy. Congressman, those 56 things are ongoing
conservation practices that we are saying are exempt from the
Clean Water Act that we have not said before.
So these are additional new things that have come into
being since the passage of the Clean Water Act----
Mr. Massie. Can you tell me what is not exempt now?
Ms. Darcy. What is not exempt?
Mr. Massie. Yeah. What might a farmer do that is not
exempt?
Ms. Darcy. I could not tell you right now what is not
exempt because most of the agricultural practices are exempt.
Mr. Massie. Here is one thing that I am worried about.
I am a farmer. I farm. I have got ditches. They have all
got high--I mean, I could find a bed, a high water mark, a bank
on these ditches.
Isn't that--how is that compatible with excluding ditches
and then saying, if it has these features, that it is under
your jurisdiction?
Ms. Darcy. We have specific exemptions in the proposed rule
for ditches.
Mr. Massie. Do those exemptions extend to somebody who is
spraying their fields and they have got a grassy ditch, for
instance, that may flow only occasionally and they are using
approved ag chemicals?
Ms. Darcy. That is exempt from the Clean Water Act because
it is an ongoing agricultural practice.
Mr. Massie. That is comforting to hear, that none of my
farmers will have to get a permit--this is what you are saying.
Correct?--to spray their fields from either the Corps of
Engineers or the EPA?
Ms. Darcy. That is correct.
Mr. Massie. All right. Thank you. My time's expired.
Mr. Gibbs. Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman.
Thank you, Assistant Secretary Darcy, Deputy Administrator
Perciasepe.
I have a couple questions.
Number one, the administration has committed to
streamlining and expediting permitting for major infrastructure
projects that move energy.
However, it seems that the EPA waters of the U.S. rule will
do just the opposite because it creates new subcategories of
water that could be subject to Federal jurisdiction.
Is there any way for the EPA, Mr. Deputy Administrator, to
guarantee that this rule will not further delay permitting for
energy infrastructure projects?
Mr. Perciasepe. Our view is that we are not expanding the
jurisdiction. So under the--and we are actually excluding some
things that may be involved with some energy development
projects. So, I mean, I don't see how this will add to the
burden.
Mr. Davis. OK. I am going to get to a few more questions
that I think may get back to this.
We are a little frustrated by what could be the regional
approach to some of the permitting issues, and I am going to
give you a couple examples in just a second.
But you also mentioned, Mr. Deputy Administrator, that
the--in your testimony the EPA and the Corps then worked with
the U.S. Department of Agriculture to ensure that concerns
raised by farmers in the ag industry were addressed in the
proposed rule.
Did you also consult with the EPA Science Advisory Board,
which now includes, due to the Farm Bill, an amendment that I
introduced, agriculture interests?
Mr. Perciasepe. Science Advisory Board, did you say?
Mr. Davis. Yeah.
Mr. Perciasepe. The Science Advisory Board will be looking
at this proposed rule before it goes final, but they haven't
completed their review. And we haven't set--they are currently
reviewing some of the science documents that go along with this
as well.
And one of the reasons, in addition to stakeholder
requests, that we have extended the time period for public
comment is we wanted to complete the Science Advisory Board's
review of some of the science documents so that that review is
out there at the same time as the rulemaking docket is still
open.
Mr. Davis. All right. Another quick question on the energy
side that I forgot to ask.
Assistant Secretary Darcy, can you give me any idea how
other agencies and industries, you know, subjectively determine
what might actually be covered by a Clean Water Act permit?
Ms. Darcy. Under the proposed rule? I mean, how would they
comment?
Mr. Davis. Yeah. Under the proposed rule.
Ms. Darcy. Under the proposed rule, anyone who believes
that they would be impacted by the proposed rule can comment to
us.
Mr. Davis. So through the comment process they can come in
because they might believe that they could be impacted, could
be required to maybe self-report, work with their regional
offices, et cetera, on an energy infrastructure project?
Ms. Darcy. Yes. Because then they would want to know if
they would be subject to the rule. So, yes.
Mr. Davis. All right. In your proposed rule, it mentions
that waste treatment systems are not included in this--in the
definition of the proposed rule of the Clean Water Act of
waterways. Right?
Ms. Darcy. Yes.
Mr. Davis. OK. Does that change the EPA's jurisdiction over
aboveground septic discharge systems that many in my district
actually have to utilize because of either soil-type issues or
rural living arrangements?
Mr. Perciasepe. I don't--oop. I turned it off when I
thought I was turning it on.
I don't believe EPA--EPA does not regulate septic tanks.
Mr. Davis. You may want to check with your--you may want to
check with your regional office that covers my State of
Illinois because aboveground septic discharge systems are being
regulated by that regional office under an NPEDS permit.
And that is part of my frustration of maybe what you see
and what you hear in Washington isn't getting to your regional
offices.
Because members of ag interests in the State of Illinois
met with the U.S. EPA just very recently--it may have been
yesterday or this morning--on what are the requirements for
sep---aboveground septic discharge permits.
And it said that it is the response--the EPA in the region
said it is the responsibility of the potential discharger to
determine whether or not his or her system might discharge into
a water of the United States.
And it said even during this self-determination--this comes
from the EPA's guidance, Frequently Asked Questions on EPA's
NPEDS general permit for new and replacement surface
discharging systems in Illinois, an FAQ sheet.
I will go right to the point. It says, ``If so, even though
pollutants would not be carried to waters of the United States
unless your area experienced an exceptionally wet season, you
are still required to obtain coverage under a permit. Only if
you are sure that your system would not discharge pollutants to
a water of the United States or a conveyance that leads to a
water of the United States should you forego obtaining a permit
for a surface discharging system. If you do not obtain a
permit, but actually discharge, you may be subject to an
enforcement action under the Clean Water Act.''
This gets to the point of the rule, sir. It specifically--
it specifically says wastewater discharge systems will not be
subject to the proposed rule and the change, but it--your
regional office is basically saying ``Self-report. However, we
may fine you if you are wrong,'' because it may actually
discharge--according to their own--their own rule or their own
guidance, it may discharge into a navigable waterway.
Can you see where we have some problems here when it comes
to what you are talking to us about and then what goes back to
the region and then has a tremendous impact on the families
that I represent and that all of us represent here in this
country?
Mr. Perciasepe. Well, I am at a loss to determine whether
or not, I mean, first of all, this is a proposed rule so the
regions are probably not dealing with it now anyway, but we
think the waste treatment exclusion has been in existence
before this rule. We are trying not to change it.
So I can't answer you here, and I will find out for you why
something like that doesn't fall under the existing waste
treatment exclusion. I just don't know the answer to it.
Mr. Davis. Well, thank you, and I do appreciate your
willingness to do so and I am going to end by saying this,
because I am out of time: Many rural communities in Illinois,
some of the poorest areas in Illinois have to rely upon an
aboveground septic discharge system.
And it is an issue where they can't be worried about the
EPA determining whether or not there is going to be an
enforcement action based on this NPDES permitting process, that
seems to be so vague and seems to be in direct contradiction
with the proposed rule.
So thank you for getting back to me. Assistant Secretary
Darcy, thank you for your time, too. And thank you to both of
you for being here today.
Mr. Gibbs. We are going to conclude this first panel. I
want to thank you for coming.
I have to comment, it is really amazing to me and really
appalling, I guess, that this proposed rule has been put out
even though the connectivity study hasn't been completed. When
you hear all the questions and everything, what is the
jurisdiction, what includes its tributary ditches and all that,
wetlands, but the study is not done, that is what creates all
the ambiguity and vagueness here.
And I think you really need to be concerned about that and
really take note of the comments that are coming in from this
hearing, otherwise we are opening up a whole can of worms and,
I think, a trial lawyer's dream come true with a lot of
lawsuits and we don't want to have litigation to cause more
problems, so----
Mr. Perciasepe. Our objective is to reduce that, as
Assistant Secretary said, and I appreciate what you are saying
about the study. I mean, we had the draft study when we did
this rule and that is one of the things. We promise we will
not----
Mr. Gibbs. I don't believe it was peer reviewed, and I
don't think it has comes to the finalization.
Mr. Perciasepe. It had two prior peer reviews before it
went to the SAB. So we can get into that detail. I know you are
out of time. But we won't finalize the rule without their final
review.
Mr. Gibbs. And I know you have been here for a while, I
hope you can stay and at least hear the testimony of the next
witnesses because I think they have got some really good
comments and raise a lot of questions of where we move forward.
Mr. Perciasepe. We look forward to working with them over
the next 90 days.
Mr. Gibbs. Thank you and we will take a couple minutes here
to get set up for the next panel, too.
[Recess.]
Mr. Gibbs. The committee will come back to order. At this
time, we welcome panel 2, and I am going to yield to Mr. Mullin
from Oklahoma to introduce the first witness.
Mr. Mullin. Thank you, Mr. Chairman. And it is a great
opportunity I have to welcome Oklahoma's own J.D. Strong, who
is the executive director of the Oklahoma Water Resources Board
and also a fifth-generation farmer from Oklahoma. He has a very
unique perspective. He even got his education at the Oklahoma
State University, which as long as it is in Oklahoma, it is
pretty good. We keep it at home.
But, you know, J.D. has a very unique story to tell with
the challenges at his farm and his family has went through year
after year after year and the challenges that each generation
has faced. At the same time, he brings a point of view from the
State, and it really is important to understand that the State
has a lot of stake at this.
And when you have a gentleman that is so deeply rooted in
Oklahoma and he is in a position and thought of enough in the
State to be appointed to this position, we should really value
his opinion. He is bringing it from not only the political
standpoint but from a personal standpoint.
So, J.D., it is good to have you here. Wish the hair was a
little kinder to you, but, you know, you can't have all things
and have the pie at the same time, right?
So thank you for being here.
Mr. Gibbs. I would also like to welcome Mr. Pifher. He is
the manager of the Southern Delivery System of the Colorado
Springs Utilities. He is testifying on behalf of the National
Water Resources Association and the Western Urban Water
Coalition.
We also have Mr. Dusty Williams. He is a general manager/
chief engineer for Riverside County, California, Flood Control
and Water Conservation District. He is also testifying on
behalf of the National Association of Counties and National
Association of Flood and Stormwater Management Agencies.
We also have Mr. Bob Stallman who is president of the
American Farm Bureau Federation and a Texas farmer that I have
known for many years. Good to see you, Bob.
We also have Mr. Kevin Kelly. He is president of Leon
Weiner and Associates, Incorporated, and also chairman of the
board of the National Association of Home Builders.
And we have Mr. Eric Henry. He is president of TS Designs,
and he is here on behalf of the American Sustainable Business
Council.
Welcome, all. And Mr. Strong, the floor is yours to give
your opening statement.
TESTIMONY OF J.D. STRONG, EXECUTIVE DIRECTOR, OKLAHOMA WATER
RESOURCES BOARD, ON BEHALF OF THE WESTERN GOVERNORS'
ASSOCIATION AND WESTERN STATES WATER COUNCIL; MARK T. PIFHER,
MANAGER, SOUTHERN DELIVERY SYSTEM, COLORADO SPRINGS UTILITIES,
ON BEHALF OF THE NATIONAL WATER RESOURCES ASSOCIATION AND
WESTERN URBAN WATER COALITION; WARREN ``DUSTY'' WILLIAMS,
GENERAL MANAGER/CHIEF ENGINEER, RIVERSIDE COUNTY, CALIFORNIA,
FLOOD CONTROL AND WATER CONSERVATION DISTRICT, ON BEHALF OF THE
NATIONAL ASSOCIATION OF COUNTIES AND THE NATIONAL ASSOCIATION
OF FLOOD AND STORMWATER MANAGEMENT AGENCIES; BOB STALLMAN,
PRESIDENT, AMERICAN FARM BUREAU FEDERATION; KEVIN KELLY,
PRESIDENT, LEON WEINER AND ASSOCIATES, INC., AND CHAIRMAN OF
THE BOARD, NATIONAL ASSOCIATION OF HOME BUILDERS; AND ERIC
HENRY, PRESIDENT, TS DESIGNS, ON BEHALF OF THE AMERICAN
SUSTAINABLE BUSINESS COUNCIL
Mr. Strong. Thank you.
Thank you, Mr. Chairman, Ranking Member Bishop and members
of the committee for this opportunity to testify before you
today on behalf of the Western Governors' Association and
Western States Water Council, a couple of nonpartisan
organizations, independent organizations representing the
Governors of 19 Western States.
I serve as chairman of the Water Quality Committee on the
Western States Water Council and appreciate this opportunity to
discuss concerns regarding the Clean Water Act, waters of the
U.S. proposed rule by EPA and the Corps of Engineers.
First, we recognize that the EPA and Corps of Engineers
actions have significant affect on States, not just in the West
but across the United States; therefore, it is extremely
important that States be regarded as full and equal partners,
in fact, as coregulators under the Clean Water Act, as Congress
intended for both the States and EPA to implement the Clean
Water Act in partnership delegating much of the authority to
States to administer those laws as they see fit within their
respective States.
And in this particular case, the Western States at least
are unanimous in their concern for the fact that the States
were not adequately consulted in advance of this rule being
proposed. While there were communications, status reports, so
forth, as coregulators and the ones that will be faced with
much of the burden and cost of implementing what happens to
waters of the U.S. across the United States, not being involved
in that rulemaking process and actually drafting the rule is of
great concern to the States and, of course, has led to much
confusion here on the back end of the rulemaking process.
As we noted repeatedly in our letters from the Western
States Water Council, waiting until the public comment period
to solicit State input does not allow for meaningful
consideration of States views as well as alternative ways the
States may have for meeting Federal objectives under the Clean
Water Act.
We also urge the agencies to recognize the Federalism
implications of this particular rulemaking, particularly noting
Executive Order 13132 that requires a higher level of
consultation with States where Federalism implications do
impact the States.
And, in fact, in the preamble to this rule, the EPA and
Corps of Engineers say, I quote, ``This rule will not have a
substantial direct effect on the States on the relationship
between the National Government and the States or on the
distribution of power and responsibility among the various
levels of Government.''
Of course, nothing could be further from the truth because
the very goal of this rule is to define where Federal
jurisdiction stops and where State jurisdiction begins. Nothing
could have more of a direct and substantial impact on the
balance of power between the Federal Government and the States.
We reiterate what Governors Hickenlooper of Colorado and
Sandoval of Nevada as chairman and vice chairman of the WGA
said in their March 25 letter that the Agency should consult
with the States individually and through the Western Governors'
Association in advance of any further action on this
rulemaking; and would also reiterate concerns that the Science
Advisory Board that is set up under EPA to help advise this
rule does not have State representation, yet there is a great
deal of State expertise when it comes to these matters, 27
experts on that panel and not one is a State agency scientist
or expert.
Finally, let me just jump to my Oklahoma-specific testimony
with the very little remaining time that I have left and say
that, on behalf of the State of Oklahoma and not necessarily
Western Governors' Association and Western States Water
Council, I reiterate the concerns about coregulators not being
just stakeholders but, in fact, should have been involved in
the rulemaking upfront.
I would also reiterate concerns about getting the cart
before the horse in terms of not waiting for the connectivity
report to be finalized which can have a significant scientific
affect on, I think, informing this rulemaking.
And so it is encouraging to hear some of the words that
were expressed today that this will not be finalized until
then, and yet it is a mystery to me why you would even propose
a rule without having the full vetting of that scientific
report that should weigh so heavily on this rulemaking process.
And lastly, a point that has been made in front of panel 1,
I think, over and over again: Ambiguity. The point of this
rulemaking is to ensure some clarity, which is very important
for the States that have to implement the Clean Water Act
rules.
And yet, in our view, at least in the State of Oklahoma, we
believe that EPA and the Corps of Engineers have simply taken
an already fuzzy line of jurisdiction and simply moved it in a
different direction, but it is not less fuzzy than it was
before. Certainly, it defeats the purpose, I think, of this
rulemaking process.
So we look forward to trying to inform and provide
additional constructive recommendations going forward that will
hopefully clarify instead of make these decisions more
ambiguous. At the same time, we think it takes more than a
couple of 90-day extensions to the comment period in order for
the States to be able to engage in a very meaningful and
constructive process of informing this rulemaking.
Instead, we think what we need is more like a timeout and
going back to the drawing board. When the train is off the
tracks, that is really the only way to get it back on in our
view.
So with that, I appreciate the opportunity.
Mr. Gibbs. Thank you.
Mr. Pifher, floor is yours.
Mr. Pifher. Thank you, Mr. Chairman, members of the
committee.
I would also like to thank representatives from the
agencies that testified on panel 1 today, because I think they
constructively added to the dialogue, but some of the
clarifications they made this morning need to be placed in
writing and that, I think, would serve all of us very well.
I am here on behalf of the National Water Resources
Association which represents urban and rural interests in the
reclamation States of the West, as well as the Western Urban
Water Coalition which represents large municipal water and
wastewater providers and, in fact, serves over 35 million
customers in the Western United States.
Both organizations certainly fully support the goals of the
Clean Water Act; after all, it protects the resource, the water
which our municipal customers depend upon and our irrigators
depend upon. So there is no disagreement there.
That said, though, our members are the ones who plan for,
design, construct and eventually operate the wastewater and
water facilities that are so essential in the West, as well as
stormwater control facilities; and it is our customers who foot
the bill.
We believe that the West, especially the arid portions of
the West, are sort of the Ground Zero, if you will, for the
impacts of this proposed rule, because we are the ones with the
dry arroyos and washes that flow only periodically, with the
ephemeral and affluent-dependent stream systems, with the
intermittent water bodies and the isolated water bodies and the
head waters that often flow only in response to precipitation
events or snow melt.
So if the rule is going to have an impact anywhere, it is
the West, and so we are watching this very closely, and on
first reading, we think this is an expansion of Federal
jurisdiction. You have now this new category of per se
jurisdictional waters that didn't exist previously. You have
some new concepts of what adjacency means. It used to be just
adjacent wetlands; now it is all adjacent waters.
You have this neighboring concept which encompasses all
waters in flood plains and riparian zones, and you have the new
significant nexus test that we have heard a lot of testimony
about already. But what that allows the agencies to do is
aggregate water bodies that individually may be insignificant
and all of a sudden they become significant.
So the on-the-ground impact in terms of the membership of
NWRA and Western Urban, could be substantial and it could be
very time consuming and costly because it results in the need
to obtain 404 permits where potentially they weren't necessary
in the past; even 402 permits, which are our point source
discharge permits; and certainly 401 certifications from our
States; and, perhaps most importantly, it can trigger NEPA
reviews. And for those of us that have built projects, we know
what that means.
Let me give you an example. In the last 8 years, I have
worked on two of the major new western water projects either
just newly completed or under construction. One is Aurora's
Prairie Waters Project. It was $600 million-plus. It was a 35-
mile, 60-inch steel pipeline, three pump stations, a water
treatment plant and some diversions off the Platte River. That
project was planned, conceived, designed, constructed and in
operation in 5 years because we were able to avoid pulling the
404 trigger and avoid a NEPA review as a consequence.
In comparison, Colorado Springs is now constructing an $800
million reuse project, very similar to Prairie Waters Project,
also three pump stations, a treatment plant, in this case, a
50-mile plus pipeline, and a new diversion outlet from the
Pueblo Dam. In that case, we couldn't avoid 404, and it took a
decade just to get through the planning and permitting process,
let alone the 5-plus years of construction and it was tens of
millions of dollars in studies and tens of millions of dollars
in mitigation. So it does make a difference.
And we are concerned about not only those types of projects
but also whether there will be any impact on the implementation
of stormwater control measures. I heard what EPA had to say. I
think there is obviously grounds for dialogue and discussion
with them. What about activities where you transfer
agricultural water out of ditches to municipal entities in
times of drought?
Because, again, the arid West is the focal point for
drought, for fires and post-fire flooding and necessary
remediation. We need to build new infrastructure, respond to
all those challenges. It will only become more difficult if we
have to go through NEPA and permitting each step of the way.
We are identifying in our written testimony some areas
where we think a dialogue with the EPA and the Corps will be
constructive. We fully intend to sit down with them and work
through some of these issues, and we look forward to a
resolution that achieves a reasonable balance. Thank you.
Mr. Gibbs. Thank you.
Mr. Williams, welcome.
Mr. Williams. Thank you, Mr. Chairman. I am here today
wearing two hats. I am representing the National Association of
Counties, NACo, and also the National Association of Flood and
Stormwater Management Agencies, NAFSMA, where I currently serve
as president. We are concerned with the scope of the waters of
the U.S. definitional proposal. While the proposed rule is
intended to clarify issues, the proposal is significantly
broader in scope. It takes Federal jurisdiction well beyond the
section 404 permit program and has potential impacts on many of
the other Clean Water Act programs.
Key terms used in the definition--tributary, adjacent
waters, riparian areas, flood plains and the exemptions
listed--also raise important questions. It is uncertain how
they will be used to implement the section 404 permit program
effectively. While we appreciate that EPA and the Corps are
moving forward with a proposed rule rather than a guidance
document, our organizations have concerns with the process used
to create the proposal and specifically whether impacted State
and local groups were adequately consulted throughout the
process.
Under Executive Order 13132, Federalism, Federal agencies
are required to work with State and local governments on
proposed regulations that have substantial direct compliance
costs. Since the agencies have determined that the definition
of ``waters of the U.S.'' imposes only indirect costs, the
agencies state in the proposed rule that the new definition
does not trigger Federalism considerations.
However, the agencies cost-benefit analysis states, quote,
``Programs may subsequently impose direct or indirect costs as
a result of implementation,'' closed quote. In addition, we are
also concerned with the sequence and timing of the draft
science report and how it fits into the proposed process,
especially since the document will be used as a scientific
basis for the proposed rule.
Because of the complexity of the proposed rule and its
relationship with the report, the agencies should consider not
only extending but suspending the current comment period and
rereleasing the proposal with the updated economic analysis
after the science-based conductivity report is issued. The
approach would be welcomed by local governments.
Both NACo and NAFSMA believe that the proposed rule would
increase the number of publicly maintained stormwater
management facilities and roadside ditches that would require
Clean Water Act 404 permits, even for routine maintenance.
Whether or not a ditch is regulated under section 404 has
significant financial implications for local governments.
Not only is the determination often very difficult, the
multitude of regulatory requirements under the Clean Water Act
can take valuable time and cost substantial dollars, both of
which are extremely significant to local agencies. This puts
our Nation's counties and flood and stormwater management
agencies in a precarious position, especially those that are
balancing small budgets against public health and safety needs.
And while the proposed rule excludes certain types of
upland ditches with less-than-perennial flow or those ditches
that do not contribute flow to waters of the U.S., the key
terms like ``uplands'' and ``contribute flow'' are not defined.
Therefore, it is unclear how currently exempt ditches will be
distinguished from jurisdictional ditches especially if they
are near waters of the U.S.
Most ditches are not wholly in uplands, nor do they
strictly drain in uplands since they are designed to convey
overflow waters to an outlet. To assist in visualizing some of
these concerns, I would like to highlight a portion of my home
county, Riverside County, California, and it should be on the
screen.
The blue line shows the current extent of waters of the
United States. The second map shows the likely extent of waters
of the U.S. under the proposed rule, a significant increase,
and not because of flowing rivers or streams but because this
area is in the arid Southwest. It is facilities like this that
will lead to the dramatic expansion.
Further, since stormwater management activities are not
explicitly exempt under the proposed rule, concerns have been
raised that manmade conveyances and facilities for stormwater
management could now be classified as waters for the U.S. This
would introduce localities to an expanded arena of regulations
and unanticipated costs in that a locality will have to
regulate all pollutants that flow into the channel including
surface runoff rather than at the point of discharge.
If stormwater costs significantly increase due to the
proposed rule, funds will be diverted from other governmental
services, such as education, police, fire, et cetera. Our
members cannot assume additional unnecessary or unintended
costs.
The bottom line is that because of inadequate definitions
and unknown impacts, our associations believe that many more
roadside ditches, flood control channels and stormwater
management conveyances and treatment approaches will now be
federally regulated. While many of these waters are regulated
under current practices, we fear the degree and cost of
regulation will increase dramatically if these features are
redefined as waters.
I will be happy to answer any questions, sir. Thank you.
[The slides accompanying Warren ``Dusty'' Williams' opening
remarks follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Gibbs. Mr. Stallman, the floor is yours.
Mr. Stallman. Thank you, Mr. Chairman, Ranking Member
Bishop for holding today's hearing.
Farm Bureau has carefully analyzed the proposal that the
Environmental Protection Agency and the U.S. Army Corps of
Engineers published in the Federal Register on April 21. We
have concluded that it broadly expands Federal jurisdiction,
threatens local land use and zoning authority, and is an end
run around Congress and the Supreme Court.
The proposed rule would categorically regulate as navigable
waters countless ephemeral Drains, ditches and other features
across the country side. Features that are wet only when it
Rains and features that may be miles from the nearest truly
navigable water. The agencies use scientific sounding terms
when referring to these features, terms such as ``bed,''
``bank'' and ``ordinary high water mark'' to give the
impression that the proposed rule would apply only to features
that are always wet. However, such terms also define a low spot
on the land with subtle changes in elevation, land where rain
water naturally channels as it flows downhill after rain
storms.
EPA calls any such feature a tributary. This land is not
even wet most of the time and it is prevalent in farm fields
across America. EPA says the rule does not cover ditches. Well,
EPA has said a lot of things, and its statement about ditches
is simply not true. The proposed rule would categorically
regulate all so-called tributaries that ever carry any amount
of water that eventually flows to a navigable water. That is a
ditch, in my world.
There is an exclusion that is limited to a very narrowly
defined and one might even say mythical subset of ditches that
are excavated in uplands, i.e., the dry land and drain only
uplands, the dry land along their entire reach. Over the last
few decades, the Corps has added more and more plants and soils
that qualify as indicators so it can classify even more areas
as wetlands.
Now, factor in EPA's position that ephemeral Drains, also
known as low spots, are also waters and not uplands, and you
begin to see that one would be hard pressed to find a ditch
that at no point along its entire reach includes waters or
wetlands. I have been farming for decades. I have been on
thousands of farms all across this country, and I can tell you
that ditches are meant to carry water. That is why most ditches
will be regulated under this rule.
I should also mention that the agencies proposed to
regulate waters and land that are adjacent to any newly defined
water of the U.S., and also add a new category of other waters.
This could, and probably will, sweep into Federal jurisdiction
vast numbers of small isolated wetlands, ponds and similar
features, many of which are not waters under any common
understanding of that word.
I would like to show a few examples of the types of land
features the proposed rule would bring under Federal
jurisdiction. Farm Bureau members from all over the country
have been sending us photos of low spots, ditches and soils on
their land, areas of their land that have the characteristics
that would allow EPA and the Corps to assert jurisdiction under
this rule.
EPA is deliberately misleading the regulated community
about the impacts on land use. If more people knew how
regulators could use the proposed rule to require permits for
common activities on dry land or penalize landowners for not
getting them, they would be outraged. It is hard to imagine
that only 1,300 acres would be affected as EPA claims, when we
have more than 106 million acres of wetlands that are currently
being used for agricultural purposes, that is defined by USDA.
In fact, Farm Bureau beliefs that this proposed rule would
be the broadest expansion of regulatory control over land use
and private property ever attempted by a Federal agency. It
takes away land use decisions from State and local governments.
It goes against the intent of Congress and the Supreme Court.
And it negates your authority as Members of Congress to write
the law of the land.
The bottom line for farmers and ranchers is that the
proposed rule will make it much more difficult and potentially
impossible to farm near these land features. If farmers must
request Federal permits to undertake ordinary farming practices
on their land, such as pest and weed controls and fertilizer
applications, and those permits are far from guaranteed, this
is, in effect, a Federal veto over farmers and ranchers use of
their land to produce their food, fiber and fuel.
I will conclude by reiterating that the Clean Water Act
itself and two Supreme Court decisions have said that there are
limits to Federal jurisdiction under the law. Rather than
define where there is a significant nexus to navigable waters,
the agencies have just hit the easy button and issued blanket
determinations that entire categories of water and land are
significant.
This results in Federal control over State, local and
private land-use decisions, and it is not what lawmakers had in
mind when they wrote the Clean Water Act in 1972. I urge
Congress not to allow this unlawful expansion of Clean Water
Act.
Thank you for your time, and I will be glad to answer any
questions you may have.
Mr. Gibbs. Thank you.
Mr. Kelly. Welcome.
Mr. Kelly. Thank you, Chairman Gibbs and Ranking Member
Bishop.
I am a home builder and developer from Wilmington,
Delaware, and this year I have the privilege and honor of
serving as chairman of the board of the National Association of
Home Builders. As builders of communities and neighborhoods,
NAHB members have a vested interest in preserving and
protecting the environment.
Since 1972, the Clean Water Act has played an important
role in improving the quality of our water resources and the
quality of our Lives. Despite these successes, there continues
to be frustration and uncertainty over the scope of the act and
the appropriate role of the Federal Government in protecting
the Nation's waters.
There still is no easy or predictable way to determine if
certain types of waters are subject to mandates of the Clean
Water Act. Therefore, to better facilitate compliance and
improve aquatic environment, the U.S. Corps, and the EPA
recently issued a proposed rule intended to alleviate
uncertainty and clarify what areas are subject to Federal
regulation.
Unfortunately, and as we have heard today, the proposal
falls well short of providing the needed predictability and
certainty. It also fails to follow the intent of Congress and
Supreme Court precedent. Instead of limiting jurisdiction, the
proposal unnecessarily increases Federal power over private
property.
Moreover, the proposal rule will provide little, if any,
additional protection because most of the newly jurisdictional
areas are already regulated at the State or local level.
Although the agencies claim the rule does not expand
jurisdiction, this is simply not the case. The rule would
establish a broader definition of tributaries and include areas
not currently federally regulated such as adjacent nonwetlands,
as well as low spots within riparian areas and flood plains.
Further, due to ambiguous definitions, the Agency would
retain extensive authority to interpret the scope of the act as
they see fit. As a businessman, I need to know the rules of the
road. I can't play a guessing game of, is it federally
jurisdictional? But that is precisely what this proposal would
force me to do.
Additionally, despite the fact that the Supreme Court has
twice affirmed that the Clean Water Act places limits on
Federal authority, the proposed rule would assert jurisdiction
over many features that are remote, carry only minor volumes of
water or have only theoretical impacts on waters of the United
States. In essence, the proposal ignores Supreme Court rulings.
Ultimately, the rule will put more areas under Federal
Government jurisdiction which will lead to more litigation and
project delay, more landowners needing permits and higher costs
of permitting avoidance and mitigation. And these expenses are
not insignificant. The cost of obtaining a wetland's permit can
range from tens of thousands of dollars to hundreds of
thousands of dollars, and that does not include the cost of
mitigation or project delay which can be very substantial. As
you can understand, the proposed rule will have real impacts on
the construction industry and ultimately the cost of developing
homes and rental apartments.
To make matters worse, the agencies have not considered the
totality of the rule's impact or its unintended consequences.
For instance, if the rule is finalized in its current form,
builders may, and I underscore ``may,'' may have to obtain
permits to perform maintenance on certain standard stormwater
management controls because they will now be federally
jurisdictional.
Yet, the agencies have all but ignored these realities in
their analysis. Equally problematic, the agencies have not
completed, as has been said today, the report to serve as the
scientific basis for the rule. Although the EPA Administrator
recently affirmed the importance of science in guiding the
Agency's decisionmaking process, the agencies have pushed ahead
with the rule without the necessary scientific data to support
their conclusions.
Defining which waters fall under Federal authority is not
an easy task. But the Federal Government cannot take the easy
way out by illegally asserting jurisdiction over everything. If
agencies are interested in developing a meaningful, balanced
and supportable role, they must take a more methodical
approach, one that is based in fact and common sense and is
true to the Clean Water Act's intent and the Supreme Court
precedence.
Thank you, Mr. Chairman.
Mr. Gibbs. Thank you.
Mr. Henry, the floor is yours. Welcome.
Mr. Henry. Thank you, Mr. Chairman, for your time.
My name is Eric Henry. I am from Burlington, North
Carolina, where I have lived for 50 years and had a business
there for over 30 years. The T-shirt and jeans I wear today are
made and grown in North Carolina from a supply chain I helped
develop called Cotton of the Carolinas.
I understand the value and importance of clean water to
both my business and my community, and I hope you will
recognize by protecting the resources that are invaluable to a
business like mine. I would also like to add, I think you would
get brownie points today by saying that you are connected to a
farm. My wife and I moved to a farm 3 years ago, so we
understand the value of clean water.
Burlington, where I live, used to be a very large textile
town, home to many companies like Burlington Industry which was
founded in 1923, one of the largest textile companies in our
country. I remember growing up, there was a small stream across
from where I live called Willowbrook Creek, where I lived for
over 26 years before I finally moved out, or my parents kicked
me out.
And I remember going across that stream and seeing blue,
red, green, dead fish, dead crawfish, times that it would smell
and this was pollution that was coming from the textile mills
in our community. That got polluted to the point where it was
like a toilet bowl that our community could drop their
commercial and residential waste into.
Today the Haw River, which is a critical part of a main
tributary that comes through our county, is part of the
rebuilding of Alamance County. Old mill communities like
Saxapahaw and Glencoe, communities that had been dying out, are
now becoming sought-out places to live, work and play. Much of
this is due to EPA's clean water regulations. As a small
business owner who started business over 30 years ago while
attending North Carolina State University, I witnessed
firsthand the positive change that comes from bringing clean
water back to our community.
My T-shirt and my jeans that I wear today, reflect my
business philosophy of a triple bottom line: Of people, planet,
profit. This is particular sure of Cotton of Carolinas. We go
dirt-to-shirt covering every step of the production process
from the farm to the factory while supporting 500 North
Carolina jobs in a completely transparent supply chain. You see
the product I am wearing and get the benefit of wearing the
product today instead of the high-priced suits most of you have
to wear today.
As a business owner with the daily focus of meeting payroll
and growing sales, I appreciate the value that my Government
partner brings to the table, the long-term value of clean water
and clean air. I believe we have an obligation not just to
protect the water for our communities we live in today but
ensure that for future generations that we have access to that
clean water.
If protecting future generations truly matters to you, this
is how we can show it. This is not a unique perspective among
business owners. As part of the American Sustainable Business
Council and the polling we have done, 92 percent of small
business owners support the idea that there should be
regulations to protect air and water from pollution and toxic
chemicals, and I would like to point out that 47 percent of
that sample group were self-identified as Republicans.
Clear national water protections are critical to making the
waterways safe for families to swim, fish from and depend on
for drinking water supply. They will ensure that the playing
field stays level and that businesses like mine will be playing
by the same rules as everyone else, that are fair and simple.
Some people today only see the higher costs of cleaner
water and the impact to their bottom line. They missed the
long-term view. What happens when the water is polluted? You
now have to look at the impact of the Elk River spill in West
Virginia, and the concerns that that spill could have spread
downriver into Kentucky. You only need to look at the recent
spill in my State, downriver where Duke power and the coal ash
fill, tens of thousands of coal ash fills, were discharged into
the Dan River.
The companies responsible for those spills don't benefit
from them. The Dan River spill is costing Duke Energy millions
of dollars, and the company responsible for the Elk River
spill, Freedom Industries, filed for bankruptcies. Companies
like mine, which rely on a consistent source of clean water,
surely don't benefit. The people in these communities, the ones
who can't shower, bathe or wash their clothes, they don't
benefit.
Our economy doesn't benefit. The Elk River spill cost West
Virginia's economy $19 million a day, according to research at
Marshall University. By contrast, the clean water rules you are
discussing today would have between $388 million and $514
million in annual benefits compared to the $162 million to $270
million in costs. There is a strong economic cost for
regulations, not against them.
We need to be the world leader in setting the bar for a
better world, not just one with a cheaper and more polluted
future. That is why I am asking for you to support EPA's move
to protect our clean waters. The people you represent and the
companies we rely on for jobs and economic growth will thank
you. Thank you for your time.
Mr. Gibbs. Thank you.
Thank you all for coming in.
My first question to anybody who wants to answer it: I am
really concerned, I believe when the Clean Water Act was passed
in 1972, it was set up to be a partnership between the Federal
Government and the State governments and I think we have come a
long way, especially in point-source pollution and even
nonpoint now to protect and enhance our environment and our
water quality.
And I am concerned that this proposed rule has potential to
erode that State-Federal partnership, because, first of all, I
think we heard today that the State EPAs haven't been involved
or consulted in the proposal or the drafting of the rule and
that doesn't sound like too much of a partnership to me.
Does anybody want to comment about the State's rights of
this, about how you think the Clean Water Act has been
functioning and how it can function even better if the State's
involvement is a partnership? Because I would argue, Mr.
Pifher, when you talk about the differences out West, a one-
size-fits-all policy in Washington, DC, to me, is a problem.
We have an umbrella here but what happens if the States
don't have that, are able to have that input to have that
enforcement when we have issues that come up and step in? What
is the long-term implications if this proposed rule goes
through as it is drafted right now to that partnership?
Mr. Pifher. Well, if I could start. I think one of the
implications is that we won't have the degree of flexibility
that is necessary to implement it on a more regional basis, if
you will, based on different hydrologic and geologic and
climatic conditions that we need to be aware of. In addition,
we have different water rights systems. We have a prior
appropriations system in the West as compared to the riparian
system in other portions of the country and that influences, I
guess, the way we address our waters and deal with issues
surrounding both discharge of pollutants and what is
jurisdictional.
And that partnership does seem to be eroding and we need to
find a better balance such that everything doesn't need to be
Federalized in order to be--we have to recognize everything
doesn't need to be Federalized in order to be protected; that
State and local governments, both of which implement the Clean
Water Act and the Safe Drinking Water Act, can do a very good
job based on the site-specific conditions that they are faced
with and the cost constraints they are faced with and we have
to trust them to do that job.
Mr. Gibbs. Mr. Strong, if you would.
Mr. Strong. Yes. No, I would just absolutely agree with
what Mr. Pifher said and add that, in fact, as an example, a
lot of the success stories in cleaning up water quality in the
United States, some of which are featured on EPA's Web site,
include projects that were done in the State of Oklahoma on a
voluntary basis with our State agencies working in partnership
with our landowners and producers to accomplish those great
successes in cleaning up water quality in the State of Oklahoma
without Clean Water Act regulatory burdens being placed on----
Mr. Gibbs. I think you touched on a very important point I
want to make, so anybody who is tuning into this can understand
this. I said to Assistant Secretary Darcy in a budget hearing
about a month ago that this proposed rule they are putting out,
I think about the average citizen out there who has in their
mind what navigable means, what I think navigable means, too,
but they are implying then that waters that aren't navigable
aren't being regulated.
And we all know this isn't the 1960s anymore, and
obviously, there have been instances, I know Mr. Henry cited a
couple. We have had our challenges and there has to be
enforcement that has to happen, but the States are regulating
the local governments for that matter, and so all waters are
being regulated. My concern is, this rule erodes that
partnership and maybe it doesn't enhance or protect the
environment or water quality but actually goes backwards. So I
am very, very concerned about that.
Mr. Stallman, on the agricultural side, we had the
Secretary of Agriculture, Tom Vilsack, testify before the Ag
Committee about 2 months ago, and he said normal farming
practices are exempt, but then he had to list the 56 that they
specifically say that are exempt. Now, I think he was implying,
I didn't get a chance to follow up, that agriculture under
those 56, if they are working with NRCS, are exempt for 404
permits.
But I am not so sure. I would like to see your viewpoint on
this is, all normal farming practices that the Farm Bureau sees
are exempt from 401 and other permitting under the Clean Water
Act?
Mr. Stallman. I appreciate the opportunity to comment on
that, including probably some of Mr. Perciasepe's assertions
about the exemptions for farming. The interpretive rule, you
have to look behind the curtain and understand what the law is
and what the rule actually says.
First, those normal farming and ranching exemptions only
apply to section 404, not section 402 which is the NPDES
permitting, which is now required for point sources which is a
nozzle that applies an agricultural chemical. That is number
one.
Number two, it only applies to farming and ranching that
has been ongoing since 1977. That was the assertion of the
Government in a court case in 1987, U.S. versus Cumberland
Farms of Connecticut, and that has been the position of the EPA
and the Army Corps of Engineers that the normal farming
exemption does not apply for those that have not been
continuously in operation since that time. That would be a lot
of older farmers. I started in 1974.
The other is, is that by requiring compliance within our CS
standards, now remember these have been voluntary incentive-
based programs in the past, you are actually morphing them into
a regulatory program and using those standards as part of a
permission process to conduct normal farming and ranching
activities.
Two other points: I think, I don't remember if it was
Assistant Secretary Darcy or Mr. Perciasepe indicated that
those 56 practices were the ones that would help improve water
quality. Well, let me tell you what was left out, the practices
that were left out that do contribute to water quality in terms
of farming: Conservation crop rotation was left out, contour
farming, cover crops, nutrient management, terracing and the
massive use of no till and minimum till in agriculture today,
96.5 million acres for no till cropland, conservation tillage
excluding no till, 76 million acres, that was excluded from
these exemptions and I think most farmers today would concur
that those are normal farming and ranching practices.
Assistant Secretary Darcy also seemed to indicate you would
not need a permit for spraying chemicals on farmland. Well,
that is true as long as none of them are identified as waters
of the U.S., and that does not mean spraying it in the water.
That means the ditch that would be identified as a water of the
U.S. that a molecule of chemical could get on. You still need
to have a permit.
Mr. Gibbs. We will get back to the ditches, but my time is
up right now.
I want to turn it over to Mr. Bishop for any questions he
may have.
Mr. Bishop. Thank you very much, Mr. Chairman.
I thank the panel for their testimony. I also thank you for
your patience. It has been a long morning.
Mr. Henry, let me first thank you for pointing out the
connection between an environment that is maintained at a
reasonable, if not the highest possible level in economic
growth and economic stability. I represent the eastern-most 75
or 80 miles of Long Island. The eastern-most part of those 75
or 80 miles has among them the highest property values in the
country.
And Mr. Kelly, I will tell you that it has some of the more
successful and prosperous builders in the country. And those
property values are what they are, and those builders are as
successful as they are because of our efforts to protect and
preserve the environment, and if the Long Island Sound were not
a swimmable or fishable water, or Peconic Bay or Big Fresh Pond
or Little Port Pond, we would not have the property values we
have.
So I think we all have to agree that we have made great
strides with respect to regulating our waters and that in
making those strides they have been supportive of economic
development as opposed to antithetical to economic development.
Having said that, I also think that we ought to, to the
greatest extent possible, try to have a fact-based conversation
and I think several of your testimony, you each said, many of
you said that this regulation is in violation of congressional
intent and in violation of, or in antithetical to Supreme Court
rulings. That is simply not correct.
In 1972, when the Clean Water Act was debated, it was
debated whether or not navigable waters of the United States
should be defined as navigable, in fact, and that
interpretation was rejected by our predecessors. It was also
rejected by the Supreme Court in 1975. In Justice Scalia's
opinion in Rapanos, he said, and this is in his opinion, I am
now quoting, ``The Court has twice stated that the meaning of
navigable waters in the act is broader than the traditional
understanding of the term and includes something more than
traditionally navigable waters.'' This is Justice Scalia.
Justice Kennedy came up with a significant nexus test and
then directed, along with Justice Roberts, the two agencies
involved to try to define waters that would meet those tests
and as Mr. Kelly said, quite correctly, this ain't easy. This
is really, really hard, and they are trying to do that, and we
now have a process in which stakeholders can influence the
outcome of that.
But here is something that I would hope you can guide me or
help me with. If this rulemaking fails or if this rulemaking is
withdrawn or if we pass the Energy and Water Appropriations
Bill and language that is currently in that bill survives into
law, that language says that Federal funds may not be used to
promulgate this rule, we are left with the 2008 guidance.
Now, I am going to read from something that the American
Farm Bureau and the National Association of Home Builders
submitted in 2008, and it says, and I am quoting, ``The
guidance is causing confusion and added delays in an already
burdened and strained permit decisionmaking process which
ultimately will result and is resulting in increased delays and
cost to the public at large.''
So my question is, A, does that represent the current
position of the authors of that letter; and B, is it your
position that the 2008 guidance is preferable with its Flaws
and imperfections, as outlined by your two organizations, is it
preferable to the regulation that is currently being proposed?
Mr. Stallman. The first answer to that, Mr. Bishop, is that
we did ask for rulemaking because a guidance is not a
rulemaking. A guidance does not allow for public notice and
comment.
Mr. Bishop. And you asked and they are delivering. They
don't like the rulemaking but they are, in fact, proposing a
rulemaking, right?
Mr. Stallman. They are proposing a rule.
Mr. Bishop. Yeah.
Mr. Stallman. Now, getting back to the Supreme Court
decisions, the one thing that has not been mentioned here this
morning is that Justice Kennedy also wrote that remote and
insubstantial waters that eventually may flow into navigable
waters would not qualify under his definition of significant
nexus.
These proposed rules, definitions and descriptions go far
beyond what he says would not qualify. So I am not sure. I
think there is a difference of opinion here about whether this
proposal is within the boundaries, as you call it, of the
Supreme Court cases.
Mr. Bishop. OK. But if I may, does the statement that I
just read, does that represent the current position of the home
builders? So my question to be specific, is the 2008 position
of the home builders also the 2014 position of the home
builders? I am sorry, Farm Bureau.
Mr. Stallman. I am the Farm Bureau.
Mr. Bishop. Farm Bureau. I do know the difference, by the
way.
Mr. Stallman. We do want a rule that restricts the scope of
authority under EPA, based on the Supreme Court rulings that
both have said that their scope is not unlimited.
Mr. Bishop. OK. I want to let Mr. Kelly answer and I don't
want to be argumentative, but I want to come back to a point.
Mr. Kelly.
Mr. Kelly. The 2008 rule is clearly preferable to the
proposed rule, and given the choice, we would live with the
2008 rule.
Mr. Bishop. With all the imperfections?
Mr. Kelly. With all its imperfections, and we have
repeatedly pointed those out, and we have repeatedly asked for
a new rule. But this rule is simply unacceptable to us.
Going back to the question you touched on a little while
ago about the permitting process. The last time we had figures,
when we studied it, an individual permit took about 788 days to
acquire and cost north of $280,000 without the mitigation that
might have gone along with it.
A streamline permit, based on again, the most recent
information we have, and this goes back more than a decade,
cost $28,000 and took 313 days. This just creates massive costs
and uncertainty for homebuilders.
I would also suggest that the current proposed rule may
have the effect of creating a pall on land development in this
country, and one of the greatest challenges facing the
homebuilding industry now is the availability of buildable,
developable land. Because, as you can understand, nothing was
taken through the pipeline from 2007 to recently. Nothing was
brought through.
So our members continue to tell us that they cannot find
platted approved land to develop on with this rule in place,
for the segment of our industry that specializes in platting
and planning land for merchant builders to acquire. They don't
know what the rules of the game are at this point in time, and
why would they spend hundreds of thousands of dollars on
engineering when they have no idea whether their piece of land
will be subject to these very vague and ambiguous rules?
Mr. Bishop. My time has expired. Thank you very much.
Mr. Gibbs. They are going to call votes shortly, and I will
announce when that happens.
Mr. Mullin. They haven't called yet. Go ahead.
Mr. Mullin. Oh, I was going to say, not that I understand
the bells around here nor does anybody else, but I was getting
confused there. You have the TV on?
Once again, I appreciate the panel for being here and Mr.
Kelly, ironically enough, I have a couple of property
companies. We are in the process right now of trying to get
about 20 acres platted, and it is absolutely absurd what we are
having to go through and the last time I had to go through, and
the last time I actually purchased nonplatted land, which is
very scary, was 2007, I believe and back then it was tough.
Now, I don't even know if--it is a chance to take, and so I do
understand with what you are saying.
I want to spend a little time with Mr. Strong. I think that
is the first time I have ever called you that. It is always
been J.D., but, hey, official titles, right? I want to spend a
little bit more time with you on understanding a couple of
things.
One, I understand that you have been told, that your agency
has been told that the rulemaking is going to be handled on a
case-by-case situation; is that accurate in saying that?
Mr. Strong. Yes, that is accurate. When we, of course,
asked some of our regional district offices what the impact of
this new rule would be on jurisdiction within our State, we
were told essentially that those types of decisions will
continue to be made on a case-by-case basis, which sort of begs
the question whether or not we are clarifying anything for
everybody if every decision has to be made on a case-by-case
basis.
Mr. Mullin. So if you are already being told that, then,
the uncertainty that runs just in the State, not to mention by
the time it trickles down to the farmers and to the
homebuilders and to the other industries that depend on this,
but when you are getting asked the questions, are you able to
even make a decision now?
Mr. Strong. No, we are not. We absolutely are not.
And you sure can't tell, I think, from reading the rule.
Certainly, the additional questions and answers from this
hearing and followup calls that we are having now with the
agencies are helping to clarify things. But I think, as Mr.
Pifher said, what is important is what is in writing, and so
even though we may get some clarification outside of the
language of the rule through these types of forums, we need
clarification in writing to give folks the finality that they
need to be able to plan their businesses, their developments,
and, as a State, to be able to implement these important
programs to protect water quality in our States.
Mr. Mullin. So once it is clarified, how much time are you
going to need to be able to get your agency spun up to be able
to comply with the new rule that may or may not exist until you
get a case-by-case clarification on it?
Mr. Strong. Well, I think if at the end of the day we got
enough clarification in the rule that would support the
statements made in the earlier panel that this really isn't any
expansion of jurisdiction, then we would expect that it would
have really sort of no additional impact on the burden on the
States to implement the law.
So really, it all sort of depends on what that
clarification looks like. If it does, in fact, change the scope
of jurisdiction in any way then it would take us more than 90
days, I can guarantee you that, to figure out what the impact
would be on the States and our programs to implement these
Clean Water Act programs as well as on our regulated
communities.
Mr. Mullin. Have you guys already identified some, I guess,
what is the word I am looking for here? Have you guys
identified areas to where the State and the Federal agencies
are conflicting with each other?
Mr. Strong. Well, I think, certainly, you could easily read
the rule as it stands right now and identify areas where what
we thought before was totally subject to the States
jurisdiction could now be under the Federal jurisdiction which
essentially removes the flexibility that was discussed earlier
that is necessary for us to implement these programs in our
States, in our various States with our very unique hydrology
that is vastly different from State to State.
Mr. Mullin. I appreciate your time being here, J.D. It is
always a pleasure to visit with you.
Mr. Stallman, I want to go back to you real quick. With the
Farm Bureau, the point I made earlier about existing farms,
existing permits, have you guys had any clarification on this
at all such as what they are referring to?
Mr. Stallman. No. Not as was referred to by Mr. Perciasepe
and Assistant Secretary Darcy. What we do know is it has been
the position of the Corps and the EPA, based on the court case
in 1987----
Mr. Mullin. Right.
Mr. Stallman [continuing]. U.S. versus Cumberland Farms of
Connecticut, that unless from 1977 on you had maintained a
continuous farming operation for which you had an exemption
there under the law that was passed by Congress--unless you
maintained that continuously, you didn't qualify. That means
there are no young farmers and ranchers that will be exempt.
Mr. Mullin. So--and, if you could, just a couple more
seconds here.
So the heartbeat of this country being the farming
community, in my opinion, is that--is threatened here by seeing
permits that are required to do some of the farming that we
have to be less available or even nonexisting.
Do you--are you hearing that from your--from your members
or is that kind of the assessment you guys are taking on your
own?
Mr. Stallman. More and more, as the information of the rule
has gone out to our members and they understand what--the
potential impact it could have on their farming operations, we
are hearing that it will just not work.
This law was never designed to regulate on a permitting
basis agriculture. Our land is--our property is measured in
acres, not in square feet.
Mr. Mullin. Yes.
Mr. Stallman. And the timelines involved in agriculture,
the integration of what we do with whatever Mother Nature gives
us, you know, we don't have time to get the permits as the
timelines are indicated it takes to get one, much less the cost
of getting one.
I will be honest with you. If my farm is determined to need
a permit to conduct my normal farming operations that have been
conducted for over 100 years there, there is not enough profit
margin for the cost of permits for me to make an economic
decision to seek a permit and continue farming.
Mr. Mullin. Thank you.
Thank you, panel, for being here.
Thank you, Chairman.
Mr. Gibbs. We are still good on votes. We have 8 minutes;
410 people haven't voted yet. So I want to ask another
question.
There is a lot of concern--it is really a concern to me
about this ditch issue and the tributaries. I mean, we had the
first panel, and it was unclear.
And when you read through the rule and the pre-am and some
of the things of the rule, I think you can conclude that--at
least I do--ditches can be tributaries and tributaries are not
subject to significant nexus test. Tributary ditches, then, are
categorically included, and significant nexus does not apply
under the rule.
Does anyone want to comment on that? Do you agree? The EPA
said today that tributaries are included under the rule and
that ditches can be included and then don't have to meet a
significant nexus test.
Am I interpreting that right? Anybody want--Bob, do you
want to----
Mr. Stallman. We agree. These are categorical definitions.
And regardless of the assurances and intent expressed by
Government officials, the only thing that will make a
difference in court and litigation is what do the words of the
rule say.
We have seen EPA and the Corps throughout 30-plus years of
litigation seek the very strictest definition that gives them
the broadest scope of authority.
And so, when you say bed, bank and ordinary high water
mark, I can show you several miles of ditches on my farm that
have those characteristics and, you know, then they become a
regulated water, and they are not today.
Mr. Gibbs. Yeah.
So when I heard the previous panel kind of answer those
questions we asked about ditches, they kind of inferred that
most ditches would not be included, and I think they even
inferred that local governments' road ditches would not be a
problem. It would not take a permit if they were going to do
any cleaning of the ditches, because I specifically asked that
question.
So you are shaking your head, Mr. Williams or Mr. Pifher.
Mr. Williams. Well, just real quickly, I heard from the
previous panel that roadside ditches generally drain uplands
and don't go anywhere.
In my county, when we collect the water, we have to take it
to an outlet, and that is generally a tributary or some
adequate outlet. That, by definition--is their definition, is a
roadside ditch.
Mr. Gibbs. So the followup question, then, if it is ruled--
if they rule it or it happens through litigation and you have
to get a 404 permit to clean your roadside ditches, then you,
as a local government entity, are--I would think would be
liable for not keeping the integrity of the ditch and--but
maybe you couldn't get the permit fast enough.
Can you see a scenario like that occurring?
Mr. Williams. Very much so. It is time and money. Both of
those will be severely impacted. I agree with you.
Mr. Pifher. I would just add that most ditches, and
certainly in Colorado and most areas in the West, at least the
arid areas, take water off traditional navigable waters, I
mean, by virtue of their water rights decrees.
And then oftentimes they have an obligation even to return
the water that they don't consumptively beneficially use to a
water of the United States; and, so, therefore, they are
jurisdictional.
And most of them have historically been jurisdictional. So,
yeah, you can't generalize and say most ditches are excluded.
Mr. Gibbs. Well, me, as an elected representative, I
interpret this as either their intent is a good intent or they
have a hidden agenda and are not being truthful. I just don't
know.
I am really, really concerned about this, because you guys
made some good comments and good statements here and some of
their statements in the previous panel were, ``I don't think
so,'' ``I am not sure.''
The vagueness and the ambiguousness of the whole issue is
really concerning and I think it does open it up to litigation
at the very least.
Would everybody concur, that we have really got an issue
here in the future if it goes through this way?
Mr. Henry. Mr. Chairman, can I make a comment, please?
Mr. Gibbs. Yes.
Mr. Henry. You know, we are talking about ditches. We are
talking about cost. We are talking about the lifeblood of
societies, the water that goes through that. What I look to the
Federal Government for is that long-term vision of the
protection of that water.
And I think, if you step away and look at the global
implications of water and society, we have got some serious
problems ahead of us. So we really have to look--you know, step
back.
I mean, this is a very serious problem we are dealing with,
and I think we are just--we are getting into the trenches and
we are missing the big picture. I mean, you know, destroying
our water quality affects the quality of our life. Look what is
happening to China right now.
Mr. Gibbs. There are no regulations over there. That is
part of the issue. But I would think that--go ahead, Mr.
Stallman. You can comment.
Mr. Stallman. Well, let me respond to that. Yeah. You know,
that is the big-picture stuff, but let me talk about how it
works on the farm.
Prescribed grazing is one of the so-called exempt practices
for those few farmers that will qualify for it. So the
implication is, if you do not qualify for it, then prescribed
grazing is not an exempt normal farming and ranching activity.
And, therefore, if you are doing prescribed grazing in a
ditch--and you have to understand my country is kind of flat.
We have a lot of ditches where we let cows graze to keep them
cleaned out where they actually will carry water.
If that requires me to fence off those ditches to keep them
from grazing or to get a permit to allow those cows to graze
there, you know, once again, I will shut it down because the
cost--the economics will not work.
So that is where it gets down to the farm.
Mr. Gibbs. Yeah.
And, Mr. Henry, I don't think anybody on this panel or
anybody on this dais doesn't want to do everything they can to
make sure that our water quality is improved and we enhance it
and protect it, but we can also regulate ourselves to death and
actually go backwards.
And the one example I have talked about previous to the
hearings with the EPA is my personal example as being a former
hog farmer.
The years the hog market went south, we tried to stay in
business, pay the employees, pay the bills, and the years we
could make some money, then we looked at doing things on the
farm to improve grass waterways and do things.
But if we put so much burden and regulation on people
like--farmers like Mr. Stallman, the environment is going to
suffer. So we have to be reasonable about this. We should never
forget that the Clean Water Act was set up to be a partnership
between the States and the Feds.
And this concern I have with this rule moving forward is
that it is eroding that partnership and we will have
degradation of our water quality in the United States and,
also, our economy and jobs.
So I need to conclude because we have to go vote. I don't
think there is any reason to come back. I think we have pretty
much got the message and everybody hit their point.
And I really do want to thank you for coming in and being
here for several hours.
So this concludes the hearing. Thank you very much.
[Whereupon, at 1:26 p.m. the subcommittee was adjourned.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]