[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




                    NAVIGATING THE CLEAN WATER ACT:
                             IS WATER WET?

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


                                HEARING

                               BEFORE THE

              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
              
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              JULY 9, 2014

                               __________

                           Serial No. 113-84

                               __________

 Printed for the use of the Committee on Science, Space, and Technology


       Available via the World Wide Web: http://science.house.gov
       
       
                                    ______
                                       
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              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

                   HON. LAMAR S. SMITH, Texas, Chair
DANA ROHRABACHER, California         EDDIE BERNICE JOHNSON, Texas
RALPH M. HALL, Texas                 ZOE LOFGREN, California
F. JAMES SENSENBRENNER, JR.,         DANIEL LIPINSKI, Illinois
    Wisconsin                        DONNA F. EDWARDS, Maryland
FRANK D. LUCAS, Oklahoma             FREDERICA S. WILSON, Florida
RANDY NEUGEBAUER, Texas              SUZANNE BONAMICI, Oregon
MICHAEL T. McCAUL, Texas             ERIC SWALWELL, California
PAUL C. BROUN, Georgia               DAN MAFFEI, New York
STEVEN M. PALAZZO, Mississippi       ALAN GRAYSON, Florida
MO BROOKS, Alabama                   JOSEPH KENNEDY III, Massachusetts
RANDY HULTGREN, Illinois             SCOTT PETERS, California
LARRY BUCSHON, Indiana               DEREK KILMER, Washington
STEVE STOCKMAN, Texas                AMI BERA, California
BILL POSEY, Florida                  ELIZABETH ESTY, Connecticut
CYNTHIA LUMMIS, Wyoming              MARC VEASEY, Texas
DAVID SCHWEIKERT, Arizona            JULIA BROWNLEY, California
THOMAS MASSIE, Kentucky              ROBIN KELLY, Illinois
KEVIN CRAMER, North Dakota           KATHERINE CLARK, Massachusetts
JIM BRIDENSTINE, Oklahoma
RANDY WEBER, Texas
CHRIS COLLINS, New York
BILL JOHNSON, Ohio
                            C O N T E N T S

                              July 9, 2014

                                                                   Page
Witness List.....................................................     2

Hearing Charter..................................................     3

                           Opening Statements

Statement by Representative Lamar S. Smith, Chairman, Committee 
  on Science, Space, and Technology, U.S. House of 
  Representatives................................................    14
    Written Statement............................................    15

Statement by Representative Suzanne Bonamici, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..    16
    Written Statement............................................    17

                               Witnesses:

The Honorable Robert W. Perciasepe, Deputy Administrator, U.S. 
  Environmental Protection Agency
    Oral Statement...............................................    18
    Submitted Biography..........................................    21

Discussion.......................................................    32

             Appendix I: Answers to Post-Hearing Questions

The Honorable Robert W. Perciasepe, Deputy Administrator, U.S. 
  Environmental Protection Agency................................    72

            Appendix II: Additional Material for the Record

Written statement submitted by Representative Eddie Bernice 
  Johnson, Ranking Member, Committee on Science, Space, and 
  Technology, U.S. House of Representatives......................   110

Letters submitted by Representative Lamar S. Smith, Chairman, 
  Committee on Science, Space, and Technology, U.S. House of 
  Representatives................................................   111

Letters submitted by Representative Kevin Cramer, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   118

Letters submitted by Representative Paul C. Broun, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   122

Letter submitted by Representative Ralph M. Hall, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   140

Letter submitted by Representative Randy Hultgren, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   142

Letters submitted by Representative Larry Bucshon, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   144

Letter submitted by Representative Mo Brooks, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   161

Letters submitted by Representative David Schweikert, Committee 
  on Science, Space, and Technology, U.S. House of 
  Representatives................................................   163

 
                    NAVIGATING THE CLEAN WATER ACT:

                             IS WATER WET?

                              ----------                              


                        WEDNESDAY, JULY 9, 2014

                  House of Representatives,
               Committee on Science, Space, and Technology,
                                                   Washington, D.C.

    The Committee met, pursuant to call, at 10:02 a.m., in Room 
2318 of the Rayburn House Office Building, Hon. Lamar Smith 
[Chairman of the Committee] presiding.
    Chairman Smith. The Committee on Science, Space, and 
Technology will come to order.

[GRAPHIC] [TIFF OMITTED] 

    Chairman Smith. Welcome to today's hearing titled 
``Navigating the Clean Water Act: Is Water Wet?'' I will 
recognize myself for an opening statement and then the ranking 
member for hers.
    A year ago, this Committee issued its first subpoena in 
over two decades because the Environmental Protection Agency 
refused to make public the data it claims justifies its costly 
air regulations. The EPA finally admitted that in many cases it 
never even had the data it uses to support its billion-dollar 
mandates. Now, once again, the EPA has avoided open debate in 
its rush to implement the President's radical agenda. The EPA 
wrote its new waters of the U.S. rule without even waiting for 
the expert advice of the Agency's own Science Advisory Board.
    The Science Advisory Board exists to provide independent 
advice to the EPA and to Congress. It is the job of these 
experts to review the underlying science. Not only did the EPA 
publish its rule before the Board had an opportunity to review 
the report, but when this Committee sent official questions to 
the Board as its review began, the EPA stepped in to prevent 
the experts from responding. The Obama Administration continues 
to undermine scientific inquiry in order to fast-track its 
partisan agenda.
    Even though Clean Water Act jurisdiction is ultimately a 
legal question, the Agency's refusal to wait for the science 
undercuts the opportunity for informed policy decisions. The 
EPA's rule is so vague that it does little more than extend an 
open invitation to trial lawyers and government drones. 
Meanwhile, the EPA has offered empty assurances. Last week the 
Agency released a fact sheet that ended with a disclaimer 
saying that its statements are not binding. The American people 
are tired of an Administration that makes promises with its 
fingers crossed behind its back.
    The EPA does not provide real clarity about what is or 
isn't water. Instead, the Agency gives itself extraordinary 
power to pick and choose on a case-by-case basis. In fact, the 
proposed rule is 370 pages but it never actually defines 
``water.'' According to the EPA, 59 percent of the streams they 
may claim to regulate, aren't always wet. The EPA states that 
these places often only become wet after rain events and in 
some cases are so tiny or temporary that they don't even appear 
on maps. The Agency's Web site says, ``They could be a drizzle 
of snowmelt that runs down a mountainside crease, a small 
spring-fed pond, or a depression in the ground that fills with 
water after every rain and overflows into the creek below.''
    The practical implications of this new rule are troubling 
for private property owners. How do we even know when and where 
these tiny drizzles of water might appear? Americans deserve to 
know what is punishable so they can live without fear of 
arbitrary persecutions.
    Take a look at a map from the EPA's draft report, and this 
is on the screen to either side of us. The image shows 
tributaries in red and larger streams in blue that the EPA 
could consider claiming in the western part of the United 
States. Before the EPA invades the back yards of Americans, 
they should tell them what they are really doing.
    When Congress enacted the Clean Water Act, it was about 
water, not land. But the EPA's rewriting of the law is a 
terrifying expansion of federal control over the lands owned by 
the American people.
    The EPA is on a regulation rampage, and this new water rule 
proves it.
    [The prepared statement of Mr. Smith follows:]

             Prepared Statement of Chairman Lamar S. Smith

    A year ago, this Committee issued its first subpoena in over two-
decades because the Environmental Protection Agency (EPA) refused to 
make public the data it claims justifies its costly air regulations. 
The EPA finally admitted that in many cases it never even had the data 
it uses to support its billion-dollar mandates.
    Now, once again, the EPA has avoided open debate in its rush to 
implement the President's radical agenda. The EPA wrote its new 
``waters of the U.S.'' rule without even waiting for the expert advice 
of the Agency's own Science Advisory Board.
    The Science Advisory Board exists to provide independent advice to 
the EPA and to Congress. It is the job of these experts to review the 
underlying science. Not only did the EPA publish its rule before the 
Board had an opportunity to review the report, but when this Committee 
sent official questions to the Board as its review began, the EPA 
stepped in to prevent the experts from responding. The Obama 
administration continues to undermine scientific inquiry in order to 
fast-track its partisan agenda.
    Even though Clean Water Act jurisdiction is ultimately a legal 
question, the Agency's refusal to wait for the science undercuts the 
opportunity for informed policy decisions.
    The EPA's rule is so vague that it does little more than extend an 
open invitation to trial lawyers and government drones. Meanwhile, the 
EPA has offered empty assurances. Last week the Agency released a fact-
sheet that ended with a disclaimer saying that its statements are not 
binding. The American people are tired of an Administration that makes 
promises with its fingers crossed behind its back. The EPA does not 
provide real clarity about what is or isn't ``water.'' Instead, the 
Agency gives itself extraordinary power to pick and choose on a case-
by-case basis. In fact, the proposed rule is 370 pages but it never 
actually defines ``water.''
    According to the EPA, 59% of the ``streams'' they may claim to 
regulate aren't always wet. The EPA states that these places often only 
become wet after rain events and in some cases are so tiny or temporary 
that they don't even appear on maps.
    The Agency's website says, ``They could be a drizzle of snowmelt 
that runs down a mountainside crease, a small spring-fed pond, or a 
depression in the ground that fills with water after every rain and 
overflows into the creek below.''
    The practical implications of this new rule are troubling for 
private property owners. How do we even know when and where these tiny 
``drizzles'' of water might appear? Americans deserve to know what is 
punishable so they can live without fear of arbitrary prosecutions.
    Take a look at a map from the EPA's draft report. The image shows 
tributaries in red and larger streams in blue that the EPA could 
consider claiming in the western part of the U.S.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    [For a better image of the map please visit http://
science.house.gov/sites/republicans.science.house.gov/files/documents/
HHRG-113-%20SY-WState-S000244-20140709.pdf]

    Before the EPA invades the back yards of Americans, they should 
tell them what they are really doing. When Congress enacted the Clean 
Water Act, it was about water, not land. But the EPA's re-writing of 
the law is a terrifying expansion of federal control over the lands 
owned by the American people. The EPA is on a regulation rampage, and 
this new water rule proves it.

    Chairman Smith. That concludes my remarks, and the 
gentlewoman from Oregon, Ms. Bonamici, is recognized for her 
opening statement.
    Ms. Bonamici. Thank you very much, Chairman Smith, for 
holding this morning's hearing to discuss the rule proposed by 
the Army Corps and the EPA to define the term ``waters of the 
United States'' in the Clean Water Act. I would also like to 
welcome Deputy Administrator Mr. Perciasepe and thank him for 
appearing before us this morning.
    Access to clean water is essential to economic growth. A 
study by the World Health Organization found that every dollar 
invested in water and sanitation yields economic benefits of 
between $7 and $12. Most Americans are lucky enough to be able 
to simply turn on a tap and have water that is safe to drink. 
Unfortunately, this is not the case everywhere.
    Although it is difficult to put a specific figure on the 
value of water to the United States economy, studies have shown 
that clean water is a prerequisite for nearly every industry 
from agriculture to manufacturing to commercial fisheries to 
tourism. With 3.5 million miles of rivers and streams, more 
than 100 million acres of wetlands, and 39.9 million acres of 
lakes and reservoirs in the United States, managing the 
availability and quality of this finite resource can be a 
challenge. And though it may be a challenge, it is one that we 
must accept.
    As we will no doubt hear today, these streams, lakes, and 
wetlands offer a wide variety of benefits to our constituents. 
For example, wetlands can reduce the possibility of flooding by 
storing excess water after a heavy rain. They can also be a 
source of water during times of drought. Wetlands and streams 
improve water quality by trapping sediments and filtering out 
pollutants and they serve as a critical habitat for fish and 
other aquatic life, increasing biological diversity.
    According to the EPA, more than 100 stakeholders, from 
state and local governments to industry and agricultural 
associations to environmental groups, have all asked the EPA 
and the Army Corps to provide clarity about what waters are and 
are not within the jurisdiction of the Clean Water Act. And 
that, Mr. Chairman, is why I am glad we are having this hearing 
today to discuss the need for that clarity. And although I know 
that not all of these organizations are supportive of the 
proposed rule, the goal of the agencies is to provide all 
interested parties with the clarity that they need and deserve.
    Mr. Chairman, some of my constituents have expressed 
concern about the potential impact of the proposed rule, while 
others have expressed strong support for the rule. I welcome 
the opportunity provided by today's hearing to learn more about 
the details of the proposed rule. I know that the comment 
period is going on until October, and this gives us an 
opportunity to clarify some of the misinformation that has been 
circulating about the proposal and also to provide an 
opportunity to let the public know about the intent of 
clarifying what clean waters are within the Clean Water Act.
    So I thank you very much, Mr. Chairman. I look forward to 
the Deputy Administrator's testimony, and I yield back the 
balance of my time.
    [The prepared statement of Ms. Bonamici follows:]

          Prepared Statement of Represenative Suzanne Bonamici

    Thank you, Chairman Smith for holding this morning's hearing to 
discuss the rule proposed by the Army Corps and EPA to define the term 
``waters of the United States'' in the Clean Water Act. I'd also like 
to welcome Mr. Perciasepe and thank him for appearing before us this 
morning.
    Access to clean water is essential to economic growth. A study by 
the World Health Organization found that every $1 invested in water and 
sanitation yields economic benefits of between $7 and $12. Most 
Americans are lucky enough to be able to simply turn on the tap and 
have water that is safe to drink. Unfortunately, this is not the case 
everywhere. Although it is difficult to put a specific figure on the 
value of water to the U.S. economy, studies have shown that clean water 
is a prerequisite for nearly every industry from agriculture and 
manufacturing to commercial fisheries to tourism. With 3.5 million 
miles of rivers and streams, more than 100 million acres of wetlands, 
and 39.9 million acres of lakes and reservoirs in the United States, 
managing the availability and quality of this finite resource can be a 
challenge.
    Though it may be a challenge, it is one that we must accept. As we 
will no doubt hear today, these streams, lakes, and wetlands offer a 
wide variety of benefits to our constituents. For example, wetlands can 
reduce the possibility of flooding by storing excess water after a 
heavy rain; they can also be a source of water during times of drought. 
Wetlands and streams improve water quality by trapping sediments and 
filtering out pollutants and they serve as critical habitat for fish 
and other aquatic life, increasing biological diversity.
    According to the EPA, more than 100 stakeholders, from state and 
local governments to industry and agriculture associations to 
environmental groups, have asked the EPA and the Army Corps to provide 
clarity about what waters are and are not within the jurisdiction of 
the Clean Water Act. And although I know that not all of these 
organizations are supportive of the proposed rule, the goal of the 
agencies is to provide all interested parties the clarity that they 
need and deserve.
    Mr. Chairman, some of my constituents have expressed concern about 
the potential impact the proposed rule may have, while others have 
expressed strong support for the proposed rule. I welcome the 
opportunity provided by today's hearing to learn more about the details 
of the proposed rule as well as the opportunity to clarify some of the 
misinformation that has been circulating about the proposal.
    Thank you, Mr. Chairman and I yield back the balance of my time.

    Chairman Smith. Thank you, Ms. Bonamici.
    Without objection, let me put in the record several letters 
that we received, and they are from the Texas and Southwest 
Cattle Raisers Association, the Texas Winery, the Texas 
Association of Business and the Texas Farm Bureau.
    [The appears in Appendix II]
    Chairman Smith. Let me now introduce our only witness 
today, and he is Mr. Bob Perciasepe, Deputy Administrator for 
the Environmental Protection Agency. He was appointed to this 
position by President Obama in 2009. Mr. Perciasepe previously 
served as a top EPA official in the Administration of President 
Bill Clinton, who appointed him to serve as the nation's top 
water official and then as the senior official responsible for 
air quality across the United States. Prior to being named to 
his current position, he was Chief Operating Officer at the 
National Audubon Society, one of the world's leading 
environmental organizations. He has also held top positions at 
the state and municipal government level including Secretary of 
the Environment for the State of Maryland. Mr. Perciasepe 
received his bachelor's degree in natural resources from 
Cornell University and his master's degree in planning and 
public administration from Syracuse University.
    We welcome you today and appreciate your testimony and look 
forward to your comments, and please proceed.

            TESTIMONY OF HON. ROBERT W. PERCIASEPE,

                     DEPUTY ADMINISTRATOR,

                  UNITED STATES ENVIRONMENTAL

                       PROTECTION AGENCY

    Mr. Perciasepe. Thank you, Mr. Chairman and Madam Ranking 
Member. I really appreciate the introductions and appreciate 
the opportunity to be here today.
    Now, I believe, as I think everyone else does, that 
Americans want clean and safe waters for ourselves, for our 
economy, for our environment and for the future uses that we 
will need, and as we are talking about today, EPA and the U.S. 
Army Corps of Engineers are undertaking a process to clarify 
the geographic scope of the Clean Water Act and to improve 
regulations that have been in place for 30 years. The existing 
regulations on the books have been in place for 30 years, and 
the proposed rule will provide families, manufacturers, 
farmers, outdoor recreation, energy producers with clean water.
    The written testimony that I submitted will provide more 
details about the proposed rule including the Agency's goals to 
respond to requests of stakeholders across the country and to 
make the process of identifying waters protected under the 
Clean Water Act easier to understand, more predictable and more 
consistent with the law and recent Supreme Court decisions. We 
believe this rulemaking will minimize delays and costs and 
improve predictability, clarity, consistency for everyone who 
may or may not need a Clean Water Act permit. It is important 
to note that this is identifying of where we will regulate the 
discharge of pollutants, not what we regulate what is going on 
on the land.
    I will focus my opening remarks here on trying to address 
some of the disinformation regarding potential effects of this 
rulemaking, and I am concerned that that information that is 
incorrect is having the effect of distracting a real public and 
national debate and discussion that needs to take place on the 
legal policy and scientific underpinnings of how we run the 
Clean Water Act and the protections for clean water in the 
country. The agencies are continuing to meet with Americans 
across the country including farmers--the Administrator, Gina 
McCarthy, is in Missouri today meeting with farmers--energy 
companies, small businesses, local governments, sportsmen, 
developers and others to get their comments--remember, this is 
a proposal--to answer their questions about this rule. We are 
hearing from the public directly, personally on how to improve 
the rule.
    But some of the misinformation is something that we have to 
cut through, and I am hoping we will have some chance to do 
that today. I have heard personally, for example, and when we 
are out talking to folks that this regulation will require 
farmers to get permits to have their cows cross a stream; this 
regulation will make dry washes that carry water only once a 
thousand years protected under the Clean Water Act; and this 
rule would make land or floodplains subject to Clean Water Act 
jurisdiction. I can say categorically that none of those 
statements are true.
    In contrast, there are some key examples of 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 
that it replaces. It would not assert jurisdiction over any 
type of waters not previously protected over the last 40 years. 
The rule does not apply to lands, whole floodplains, backyards, 
wet spots or puddles. It will increase transparency, 
consistency and predictability in making jurisdictional 
determinations and reduce existing costs and confusion and 
delays. It represents the best peer-reviewed science about the 
functions and values of the Nation's waters. And the Agency--
and this is important to your opening comments, Mr. Chairman. 
The Agency will not finalize this rule until our Science 
Advisory Board is complete with its review of both the rule 
itself and the science documents that support it.
    It will reduce Clean Water Act jurisdiction over ditches 
compared to the previous 2008 guidance. The rule would maintain 
all existing Clean Water Act exemptions and exclusions. In 
addition, we are trying to clarify agricultural conservation 
practices which we do not want to inhibit that are conducted in 
waters that do not require a permit under the Clean Water Act. 
So we have published a proposed rule, not a final rule. We are 
currently taking comment on the proposal and we expect 
tremendous and are getting tremendous public response from a 
broad range of interests. We are working actively to meet with 
a wide range of stakeholders. This outreach has already been 
tremendously helpful and it is helping us understand the 
concerns and discussing effective solutions that will lead to 
improvements in the final regulation. We are going to continue 
working hard, listening more effectively and to understand the 
issues better.
    Additionally, in preparation for the proposed rule, EPA was 
able to review and consider more than 1,000 peer-reviewed 
scientific papers and other data, and the EPA's Office of 
Research and Development prepared a draft peer-reviewed 
synthesis of these published peer-reviewed scientific documents 
and the nature of connectivity and the effects of tributaries 
and wetlands on downstream waters. This draft report informed 
the agencies' development of the proposed rule, and following 
earlier external peer review, the report is currently 
undergoing peer review led by the EPA's Science Advisory Board. 
We expect that the SAB will complete its review later in this 
calendar year but again, we will not finalize this rule until 
they complete their review of that document and that we have 
their comments available to us to finalize the rule.
    So let me conclude by emphasizing my strong belief that 
what is good for the environment and clean water is good for 
farmers, ranchers, foresters, manufacturers, homebuilders and 
small businesses. We look forward to working with all 
stakeholders and the public to reflect this important goal in 
the final rulemaking when we get to that point.
    So thank you for this opportunity to comment. I apologize 
for running over, though. I just looked at the clock.
    [The prepared statement of Mr. Perciasepe follows:]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Chairman Smith. We weren't going to hold you to the 5 
minutes, but thank you for your comments, Mr. Perciasepe.
    Let me go back to the map that I showed on the screens a 
few minutes ago and direct my first question to you in regard 
to that map, because it looks to me like what the EPA proposes 
is to regulate about 99 percent of these western states whether 
those areas in some cases are wet or dry. This is a map from 
your preliminary report? Do you agree with what the map says in 
that it would cover about 99 percent of those western states?
    Mr. Perciasepe. There are two things, like I said. First, 
this is a similar map to what the current regulations would be 
covering, and what that map is showing is the full drainage 
areas, not the actual waters.
    Chairman Smith. That is my point, but your regulations 
could cover those areas that are the drainage areas, not just 
the actual water, and that is why so much of that map is either 
red or blue.
    Mr. Perciasepe. No, the regulations--keep in mind, this is 
just where the jurisdiction is.
    Chairman Smith. Right.
    Mr. Perciasepe. You would be affected if you wanted to 
discharge pollution into the waters that might be in those red 
areas.
    Chairman Smith. But the EPA could if it wanted to regulate 
the area that is colored red and blue in this map?
    Mr. Perciasepe. We would not regulate the land in those 
areas. The water that is in those areas that has stream banks, 
that has a bed, normal high-water marks, those would be the 
places that would be covered, not the land.
    Chairman Smith. To the extent that the water traversed the 
land, then that land itself would be impacted by the 
regulations, would they not?
    Mr. Perciasepe. The water, the water tributaries, the 
bodies of water that are in those areas would be subject to 
regulation if you discharge pollution into them. It would not 
be the farm fields, it would not be the backyards, it would not 
be the areas, the land areas. It would be the discharge of 
pollutants into the waters in those areas.
    Chairman Smith. Let me give a quick example. To the extent 
that there was a runoff from a stream or from even one of those 
rain puddles that I referred to, then you would be able to 
regulate that area, would you not?
    Mr. Perciasepe. We are proposing in this rule that 
tributaries to traditionally navigable waters, and this is 
included in many of the science documents and also in the 
Supreme Court decision, that have a significant effect on the 
downstream navigable waters. If you wanted to discharge 
pollutants into those or fill them in, you would have to have a 
permit under the Clean Water Act.
    Chairman Smith. Suppose we are not talking about 
pollutants. Suppose we are just talking about rain runoff or 
that drizzle that is in your report or in the report where you 
might have literally areas that are only wet after it rains. 
Those areas would be covered whether or not there are 
pollutants involved or not.
    Mr. Perciasepe. The stream would be covered, not the land 
area. The stream. You wouldn't be able to discharge into the 
stream. And including streams that are intermittent.
    Chairman Smith. Correct, that might be dry today.
    Mr. Perciasepe. They might be dry some parts of the year.
    Chairman Smith. And in my opinion, at least, what gets into 
the land and goes beyond the water, as you just said, if you 
are talking about dry stream beds, that is land, that is not 
water, and I think that that concerns a lot of farmers and 
ranchers and landowners.
    Mr. Perciasepe. I understand that, and we are certainly 
talking to a lot of them about those concerns but we have tried 
to define which of those would be covered or that you would 
have to get a permit if you filled them or discharged pollution 
into them if they have the characteristics, that is, water 
flows in it enough times that it creates a bed and a bank and 
an ordinary high-water mark, and that is a hydrologic science 
kind of determination.
    Chairman Smith. Going back to my main point, once again, 
you all had the authority to regulate in many cases dry land, 
in many cases intermittent streams, that would cover most of 
that area covered by the red and blue, which again I think is 
about 99 percent of the western states.
    But let me go to the states. I understand you have maps of 
each individual state but in greater detail than the map that 
is on the board and that was in your preliminary report. Can we 
get access to those state maps that are more detailed?
    Mr. Perciasepe. If we--I am not aware of how detailed the 
maps we have but again, I want to be really clear here. We--all 
that red area is not going to be regulated by the Clean Water 
Act. It would only be the water bodies or the tributaries that 
are in those areas. I don't know how many times--I don't know 
what else to say about that, Mr. Chairman, because I really do 
understand the concern but I want you to understand that----
    Chairman Smith. Is this map accurate, though? Those red 
areas----
    Mr. Perciasepe. Those areas are regulated under the current 
regulations.
    Chairman Smith. But you have the authority to regulate 
under current law. It just hasn't been regulated before, and I 
think you are getting ready to expand your authority in a far 
greater way that has been done in the past.
    Mr. Perciasepe. No, we are not.
    Chairman Smith. So nothing beyond the current regulations. 
Are you sure about that?
    Mr. Perciasepe. I am.
    Chairman Smith. Okay. We will hold you to that.
    And I understand that the EPA does have these state maps in 
more detail, so if you have them, you will get them----
    Mr. Perciasepe. I will.
    Chairman Smith. I appreciate that. My last question goes to 
the Science Advisory Board. You heard me mention that in my 
opening statement, that they by law provide advice to the EPA 
and provide advice to Congress. We submitted several questions 
to the Science Advisory Board that were intercepted by the EPA 
and the Science Advisory Board was not allowed to answer our 
questions. That is not the way I read the law. We don't have to 
get the EPA's permission for the Science Advisory Board to give 
us answers to our questions. Why did the EPA intercept our 
questions and why was the Science Advisory Board prevented from 
answering our questions?
    Mr. Perciasepe. Well, let me sway a couple of things about 
that. First of all, our intent is to make sure-- we want this 
Committee and other committees of jurisdiction to benefit from 
the advice of that body.
    Chairman Smith. The law doesn't allow you to screen the 
Science Advisory Board's answers or to intercept our questions, 
the way I read the law.
    Mr. Perciasepe. The members of the Science Advisory Board 
are volunteers, and they volunteer to provide their scientific 
advice and expertise to the American public through the 
government, and in volunteering, they become special what is 
called in the HR system, special federal employees, and so they 
are actually employees in that regard, although they are 
volunteers, and we feel that there needs to be a process----
    Chairman Smith. Do you disagree with the law that says that 
we can get answers directly from the Science Advisory Board? Do 
you think the law says that you can intercept our questions and 
prevent them from giving us answers?
    Mr. Perciasepe. We have given all your questions to--they 
have those. Whatever you have----
    Chairman Smith. But you haven't allowed them to answer our 
questions.
    Mr. Perciasepe. Well, what we are trying to work out, and I 
think we are making really good progress on this, is how you 
take federal employees and have a defined--so they understand 
what the process is on how they would go about doing this work.
    Chairman Smith. I think that is a pretty paternalistic 
almost more so added to say that you have got to tell these 
employees what to do or educate them. They are experts in their 
own right.
    We have a complete and fundamental disagreement on that. I 
think it was totally inappropriate for the EPA to intercept the 
questions and the Science Advisory Board from answering our 
questions. You apparently disagree with that, but to me, that 
is the law.
    That concludes my questions, and the gentlewoman from 
Oregon is recognized for hers.
    Ms. Bonamici. Thank you very much, Mr. Chairman, and thank 
you again, Deputy Administrator, for being here and for your 
abilities, bringing your expertise to discuss this important 
issue. So I have several questions. First, I wanted to just 
confirm something that you said in your testimony. You said 
under the proposed rule, the current exemptions are maintained. 
Is that correct?
    Mr. Perciasepe. Yes, that is correct.
    Ms. Bonamici. Thank you. So I want to start by discussing 
the issue of green infrastructure. City and county governments 
in my district have been replacing so-called gray 
infrastructure with green infrastructure including some 
daylighting stormwater pipes to create swales, vegetated 
swales, and by constructing wetlands, ponds and other natural 
facilities to manage and treat storm water. So many of these 
features have characteristics that the proposed rule could 
classify as tributaries and thus define them as waters of the 
United States. So assuming that the EPA wants to avoid the 
unintended consequence of discouraging green infrastructure, 
how can the proposed rule be clarified to support the continued 
development of green infrastructure such as these swales?
    Mr. Perciasepe. Well, our intent is certainly not to 
discourage green infrastructure. EPA is a great advocate of 
green infrastructure. We think it is a bona fide solution to 
some of the urban runoff and pollution issues we have.
    You know, if you have a storm drain somewhere in your 
municipality or county or town and you discharge pollution into 
it and it goes downstream, you can't--you would have to--the 
discharge of pollutants into that would have to be regulated. 
But we are not going to regulate in any different way a 
daylighted storm drain or diversions of gutters into a tree 
pit, which has vegetation in it that we want percolation of the 
groundwater to take place there. These things that are not 
jurisdictional now would not be jurisdictional under this 
proposed rule.
    Ms. Bonamici. Thank you for clarifying that, and I happen 
to represent a district that is very diverse, so I don't just 
have urban areas; I also have a lot of rural and agricultural 
areas. So one concern that I have heard about from my 
constituents in the agriculture industry is that the proposed 
rule may lead to the regulation of any activity on a farm that 
simply has the appearance of affecting a water of the United 
States, even if that activity does not include a discharge or 
involve a potential pollutant. So for some groups, they are 
very concerned and they want to express a concern about how 
ditches will be regulated under the proposal. A number of 
groups oppose the inclusion of ditches under the definition of 
tributaries. So could you please discuss how the EPA might 
clarify this question for stakeholders who are concerned about 
the proposed rule leading to an increase in amount of 
activities for which farmers must seek permits?
    Mr. Perciasepe. So there is two parts to that. One is, is 
the water jurisdictional, and the second is, does the activity 
itself regardless of whether it is jurisdictional require any 
action under the Clean Water Act. And so the farmers of this 
country who are working very hard to produce the food that we 
all need, they have to think about both of those because if you 
can plant, plow--I think the sequence would be plow, plant or 
no till, and harvest crops today on your land, this will not 
change any of that. Those activities are exempt from Clean 
Water Act permitting under the Clean Water Act, under the law 
itself.
    One of the things that we are trying to expand on and be 
clear about are the conservation practices that many farmers 
also do during different times of the year and they do this 
with hunting organizations like the Ducks Unlimited and others, 
and we want to make sure that those activities are also best 
management practices that you would do to do conservation on 
your land because farmers are primary stewards of the land and 
we want to make sure that we can understand the plowing, 
planting and harvesting but we also want to make sure that 
those conservation practices are not inhibited. So yes----
    Ms. Bonamici. Sorry to interrupt but I want to follow up 
and I am running out of time. So I want to talk a little bit 
more about ditches and how they may be treated differently 
under the proposed rule compared to current practice. So 
ditches is a big issue in the district. So can you talk about 
whether they are exempt under the proposed rule? Will farmers 
be able to maintain drainage and irrigation ditches without 
getting a Clean Water Act permit and will local governments 
need additional permits to maintain roadside sides? So if you 
could clarify that, please?
    Mr. Perciasepe. Roadside ditches, ditches that are on 
upland areas that are designed to drain that water off of an 
upland area, all of those we try to be really clear, they are 
not included in this jurisdiction--as a jurisdictional water or 
feature even, and when we talk about ditches, we are probably 
talking about constructed activity. Now, if you channelize a 
stream and make it look like a ditch but it is a channelized 
stream that is running all year long, that would require, but 
the ditches that people are using to drain their farm fields or 
make sure water runs off more efficiently off an industrial 
property or at the side of a road, those are not jurisdictional 
and they would not be jurisdictional under this proposal, and 
we have tried to clarify that. Now, if we didn't get that 
right--I am telling you what our intent is, but if we didn't 
get that right, that is what we are hoping to get some comment 
on because----
    Ms. Bonamici. Thank you very much. I see my time is 
expired. That was very helpful. I yield back.
    Chairman Smith. Thank you, Ms. Bonamici. We will go to the 
gentleman from North Carolina, Mr. Cramer, for his questions.
    Mr. Cramer. I am from North Dakota, but it is very close to 
North Carolina.
    Chairman Smith. Did I say--pardon me.
    Mr. Perciasepe. They are both north. Thank you, Mr. 
Chairman.
    First of all, before I almost certainly will forget, I have 
received four letters this morning from four different county 
Farm Bureaus in North Dakota that I would like to admit to the 
record if that is okay.
    Chairman Smith. Without objection, they will be made a part 
of the record.
    [The information appears in Appendix II]
    Mr. Cramer. I need to get very clear something that I 
heard--I think I heard anyway--during the chairman's 
questioning, and let me ask you the question this way. Do you 
believe that the law allows the EPA to intercept this 
Committee's questions to the advisory board and/or somehow 
regulate their answers back to us? Do you believe that the law 
allows that?
    Mr. Perciasepe. What I believe is that the Committee's 
processes and the SAB's processes need to both be protected in 
a way that there is a structured approach to how we interact, 
and we are working--we want to do that, and we want to have 
these employees of the Federal Government to have a knowledge 
on how they would go about, what process they would go through. 
So I am comfortable with just saying let us get that worked 
out. We are working hard to do that, and I have high confidence 
we will.
    Mr. Cramer. Okay. I can appreciate what you want, and as 
you said, the chairman, how you feel, that is all fine stuff 
for a social scientist but we are talking about hard science 
and the law, the letter of the law. Do you believe the law 
allows you to intercept the questions from this Committee to 
the Science Advisory Board? I believe it does not but----
    Mr. Perciasepe. We provided all the correspondence that you 
have given us to the Science Advisory Board.
    Mr. Cramer. I think the correspondence was to the Science 
Advisory Board, and that is the point, is that you have it, not 
the Science Advisory Board, or----
    Mr. Perciasepe. Well, they are employees----
    Mr. Cramer. --screening before it gives to them. All right. 
We are not going to get anywhere on that one.
    The EPA and the court keep talking about the need for 
clarity, and quite frankly, from my perspective, the clarity 
you seek is more permission, not clarify. I think to me it is 
every bit as clear today as it has ever been what your 
jurisdiction is and, more importantly, what it is not. It seems 
to me you are seeking permission, not clarity, because as I 
read the rule, I don't see--or the proposed rule, I don't see 
it being clear at all. And one of the areas that concerns me 
most is this reference to other waters and the definition of 
other waters. ``Other waters'' is so open-ended as to create 
ambiguity, not clarity, in my view. Can you explain why there 
needs to be a category called ``other waters''?
    Mr. Perciasepe. The existing regulations that are on the 
books use a very general test that is oriented toward whether 
there is an effect on interstate commerce or a potential effect 
on interstate commerce, which is not a science-based test, and 
it is not in adherence with what the Supreme Court laid out in 
their decisions in the last decade. And so what we are trying 
to do--and again, I am totally open to the fact that we may not 
be achieving what we are setting out to do here, is take what 
the Supreme Court says, you got to move away from this sort of 
general thing, because under the existing regulation, it is 
much more open-ended as to what a field technician could decide 
might have an effect on interstate commerce, not that a 
biologist is an expert in that matter, as you might agree with 
me on.
    Mr. Cramer. Sure.
    Mr. Perciasepe. So what we are trying to do is get it back 
to sort of a science-based, science of hydrology. So we have in 
most cases, and I promise to get to the other in a minute, we 
have tried to define normal hydrologic features that a good, 
normal science-oriented field technician can figure out. There 
are other places that have those characteristics that have this 
other issue that has to be dealt with, which is whether they 
are connected or not, and this is the other issue that the 
Supreme Court asked us to try to deal with. And so what we do 
in under the current regulation, they are all case by case. 
Under this one, we are trying to define an approach that we 
would take, whether it is a watershed approach or an ecological 
approach, and we ask for comment on that, and we have to work--
get to the point where we really understand how anything that 
has characteristics of being water like standing water or a 
wetland, and how we go about dealing with that as opposed to 
case by case. So I am with you that we need to define that 
better, and we think we got to most of the stuff in this rule 
but that one we are still asking questions on.
    Mr. Cramer. Okay. I guess this will be my final question, 
at least for now. The EPA has stated that it has consulted with 
the states. How is that coming along? Are a lot of states 
jumping on board with this rule? How many of them support it? 
Have you heard from any that have concerns about it? What is 
the status of the support of the states?
    Mr. Perciasepe. So a couple of things on that. First of 
all, in our own Supreme Court filings back in the middle of the 
last decade, 35 states were amicus with us in the Supreme Court 
specifically. Currently, about--and I can provide this for the 
record----
    Mr. Cramer. That would be good.
    Mr. Perciasepe. --probably a number of individual states 
and a number--most of the state organizations including the 
State Association of Ag Directors and what have asked us to do 
a rulemaking. So we have a lot of states saying do a 
rulemaking, a lot of states supporting us in front of the 
Supreme Court, and now what we have is a proposal out there and 
we have a process going on with a number of those state 
organizations including the Environmental Council of the 
States, the State Environmental Commissioners. Just last week, 
I was in Denver. I met with the ag directors including from 
North Dakota and the State Environmental Commissioners getting 
their input. Very informative to me, according to the things 
just mentioned, where I know we need to do more work. So we 
will not get this rule finalized without having a defined 
process with our co-regulators, the states, between now and 
then, and we have ample evidence beforehand of them asking us 
to do a rulemaking.
    Mr. Cramer. Yeah, doing a rulemaking and the outcome of the 
rulemaking are two very different things. My time is expired.
    Chairman Smith. I thank the gentleman from North Dakota. 
The gentleman from California, Mr. Peters, is recognized for 
his questions.
    Mr. Peters. Thank you, Mr. Chairman. Thank you, Mr. 
Secretary, for being here. I want to cover two topics.
    The first was, in general, we know that the proposed rule 
is estimated to cost between $162 million to $278 million for 
additional mitigation pollution reduction facilities while it 
lists benefits including reducing flooding, filtering 
pollution, providing wildlife habitat, supporting hunting and 
fishing, and recharging groundwater with estimated benefits at 
$388 to $514 million annually. I wanted you to give us some 
sense of how those benefit numbers were calculated.
    Mr. Perciasepe. Well, we use a variety of methods and 
economic analysis to do that, and one of the things that we did 
for this economic analysis, and we have been getting a lot of 
comment on this as well, is we looked at actual determinations 
or jurisdictional determinations that were being made by the 
Corps of Engineers in the field following the 2008 guidance and 
how they were making those determinations and would they be 
different under this proposal, and then we looked at that and 
we looked at studies that are available and that are out there 
related to the values of different flood control approaches and 
wildlife habitat benefits, the benefits of hunting and fishing 
in the United States, and we did the economic analysis around 
that. The cost numbers are related to mitigation that might be 
required from permits for discharging fill or for the 
permitting processes themselves.
    Mr. Peters. We hear about the costs. We just want to get a 
sense of how you think the benefits are. Obviously we are 
sensitive that the balance sheets from which the costs are paid 
aren't always the balance sheets to which the benefits accrue.
    The other thing is, I wanted to follow up on Ms. Bonamici. 
I did practice law for some time and worked on the Clean Water 
Act, and I think I am still the only former EPA employee in 
Congress, I suspect, so I may just have a little bit too much 
dangerous knowledge. But, I am sensitive to the need to 
encourage kind of the right kind of drainage as a matter of 
infrastructure, and so just maybe to phrase what her question 
was a little bit differently, is there any jurisdictional 
distinction between a concrete drainage ditch which conveys to 
an undisputably navigable water of the United States, on one 
hand, and a swale that has its own filtering, natural filtering 
elements in it that might also lead to the same water?
    Mr. Perciasepe. Well, if it is a channelized stream with 
concrete or gabions or riprap, and it runs with the proper 
perennial or intermittent characteristics, then it would be 
jurisdictional under this, and if you wanted to discharge 
pollutant into it, you would have to get a permit.
    Mr. Peters. Right.
    Mr. Perciasepe. On the swale, it becomes a different 
matter. I mean, there are swales in farm fields that are not 
jurisdictional. There are drainage off of a commercial property 
that has to move the water efficiently. Those are not going to 
be jurisdictional. It is hard to say specific here.
    Mr. Peters. What I am trying to get at is, is the fact that 
there is sort of a filtering built into it.
    Mr. Perciasepe. Yes.
    Mr. Peters. Does that make a difference in having to comply 
with the law?
    Mr. Perciasepe. Again, I am going to say as a general 
manner, swales are not going to be--drainage swales are not 
going to be jurisdictional but that doesn't mean you can't 
consider whether you are going to be discharging pollution into 
them.
    Mr. Peters. But that is exactly the point, that there might 
be--one of the things that we are talking about in theory, in 
planning theory, is now building drainage that has in itself, 
that incorporates----
    Mr. Perciasepe. Absolutely.
    Mr. Peters. --filtering, and what I think Ms. Bonamici's 
question was that if we don't draw a distinction or provide any 
incentive, we are not going to encourage that at the local 
level, which is----
    Mr. Perciasepe. We do not want to create disincentives for 
green infrastructure or other drainage systems that are built 
to help stormwater management and particularly from a 
pollution-control perspective. I mean, city--in many respects, 
you have this both in your district in both ways, cities are 
beginning to learn from what farmers have been already doing, 
and I think this is really kind of an interesting time for that 
kind of stormwater management work. But we do not want to 
create impediments to that.
    Mr. Peters. And I would invite any of your lawyers who 
wanted to follow up with two pages on that to me to feel free 
to do so.
    Mr. Perciasepe. Okay.
    Mr. Peters. Thank you.
    Mr. Perciasepe. We will follow up.
    Mr. Schweikert. [Presiding] Thank you. Mr. Neugebauer.
    Mr. Neugebauer. Thank you, Mr. Chairman.
    Thank you, Administrator, for being here this morning. 
Obviously this rule has caused quite a bit of controversy, and 
particularly a lot of uncertainty with my farmers and ranchers. 
I have received letters from both the Farm Bureau and the local 
Chamber of Commerce in my district very concerned about the 
mixed signals that they are hearing both from when they read 
the rule and what the Administration is saying, and I want to 
read this part, but the proposed rule states that all waters in 
a floodplain are regulated unless specifically excluded. Now, 
there are a limited number of exclusions for ponds that are 
used only for stock watering, irrigation, settling basins or 
rice growing, but there aren't any exclusions, for example, of 
standing water in a field, rainwater, puddles, backyards, wet 
spots or ponds that have other uses. Now, I know that 
Administrator Stoner has in her blog indicated that water in 
fields, ponds, rainwater are excluded from the regulation under 
this rule, and I think that is also repeated on the EPA Web 
site. But I think what we keep hearing is when people hear what 
you are saying and then they go back and see what is written in 
that rule, they think that there is a conflict there. Can you 
show me in the rule where these areas that Ms. Stoner and 
others are saying they are excluded? Because we are not finding 
them.
    Mr. Perciasepe. We have heard this ourselves from a number 
of people. Again, I was mentioning just previously that I had 
been personally talking to some ag commissioners and what they 
hearing on the ground from both farmers and the associations. I 
am speaking to the soybean Association this afternoon after I 
complete work with you all this morning, and here is how it 
works and here is how we need to work on making it clearer. The 
floodplain concept is to help identify whether or not it is 
adjacent to a navigable water, so you have got a floodplain 
from a traditionally navigable water and you have water--I will 
come back to this--in that floodplain area, then we are saying 
that that should be considered adjacent. The trick here is, it 
is not any water in that floodplain. Obviously the floodplain 
is going to be flooded in the spring, let us say, if it is a 
typical floodplain. That doesn't make the floodplain itself 
jurisdictional. What it makes--what we are proposing in the 
rule is that if there is a water as is otherwise defined, a 
stream with a bed, bank and normal high-water mark or a wetland 
that has hydric soils and hydrophitic vegetation, puddle is not 
going to have that. A wet field isn't going to--is not 
jurisdictional under any circumstances. So and for those that 
actually need that like a rice field, we specifically exclude 
them.
    So I think our intent here is to use the concept of 
floodplain, which is a solid hydrologic science concept of 
adjacency, but only be regulating waters that are otherwise 
defined in those floodplain areas to be jurisdictional. So that 
doesn't mean everything in the floodplain is jurisdictional or 
that there is any restrictions on farming or any other excluded 
activities. So we need to do a better job of figuring how to 
explain that, but that is the best I can do right here.
    Mr. Neugebauer. For example, in my district, we have a lot 
of playa lakes, and while those playa lakes sometimes have 
water, sometimes they don't, but they are not adjacent to other 
bodies of water that would meet I think the original intent of 
Congress, and that would be a navigable waterway. So I think 
one of the things I want to--hopefully during this comment 
period that you are hearing from these people but I think it is 
going to be important that the EPA take the necessary steps to 
make sure we clarify what is covered and what is not because I 
think it is leaving a lot of uncertainty.
    I want to go back again to Ms. Stoner. She said that 
permits will not be applied for the application of fertilizer 
to fields or surrounding ditches or seasonal streams. She says 
that the pesticide general permit only requires a permit when 
pesticides are applied directly to the waters of the United 
States. But looking at the rule, I don't see how that she can 
make such a broad statement because the rule is pretty clear. 
It says all water in a floodplain and all seasonal streams are 
federally regulated waters of the United States. And so the 
application of fertilizer or pesticides would seem to apply 
here and require a permit.
    Mr. Perciasepe. I will just try to--because this is 
something we need to work on. The floodplain is a geography--it 
is under the science of fluvial geomorphology. It is something 
that is created as a natural part of the hydrology of a river 
system and a stream system. We are using that characteristic to 
say if there is a water in that area that can be deemed as 
being adjacent to the main stream or the traditionally 
navigable water, but it still has to be a water as defined in 
the regulation, which is again a stream with a bank, a bed, a 
normal high-water mark, a wetland that has hydric soils and 
hydrophitic vegetation. So the chances are pretty high that 
those are not going to be farmed to begin with but if you have 
a field and you have been farming it before this rule, you are 
going to be able to keep farming it, and if it does get wet and 
if you are a farmer who is so inclined to spray fertilizers and 
pesticides on a wet field, which doesn't make it very 
effective, but you will not need a permit to get--to do that. 
You will not come under the general permit that is already out 
there. You will have to avoid spraying it directly on those 
other waters there.
    Mr. Neugebauer. Thank you.
    Mr. Schweikert. Thank you for yielding back. Ms. Kelly.
    Ms. Kelly. Thank you.
    I guess I wanted to follow up on what some of my colleagues 
have already mentioned. It seems like there is so much 
misunderstanding and misinformation and rumors about what this 
new ruling would do, and I just encourage you to do everything 
you can to work with the farmers. My district, people are 
always surprised when I say I have more farmland than city 
land, and I was just with one of my farmers yesterday and they 
made me stop at different places and say that is going to be 
covered by the rule and they are very, very concerned. So 
whatever you can do to make it clearer to all of us, I think 
that would be very helpful and go a long way.
    The other thing is, in its testimony before the House 
Transportation and Infrastructure Committee last month, the 
American Farm Bureau Federation suggested that the exemption 
for agricultural stormwater and irrigation return flows would 
be severely undermined by the proposed rule because the 
proposed rule would regulate as waters of the United States, 
the very ditches and drains that carry stormwater and 
irrigation water from farms. Can you please comment on this 
statement and the impact of the proposed rule on the exemption 
for agricultural stormwater and irrigation return flows?
    Mr. Perciasepe. Our intent is that those remain exempt. We 
have not changed the exemptions. We are struggling to find out 
how to understand how people make that interpretation, but 
whether it is playas or whether it is the agricultural 
irrigation ditches, these are not jurisdictional and we believe 
we have not changed that, but we obviously have to make that 
clearer or somehow convince the people who want to help 
continue the confusion, we can get them to be a little more 
focused on what we really need to do to fix the rule.
    Ms. Kelly. It just sounds like communication is such a big 
issue.
    Mr. Perciasepe. Yes.
    Ms. Kelly. Okay. Thank you. I yield back.
    Mr. Schweikert. Thank you, Ms. Kelly. Mr. Collins.
    Mr. Collins. Thank you, Mr. Chairman, and I am going to be 
submitting for the record a letter dated May 1 that I sent to 
Ms. McCarthy and the Hon. John McHugh signed by a majority of 
the Members of Congress, over 230 members, Republicans and 
Democrats, simply asking that this rule be withdrawn. 
Withdrawn. Now, obviously, your Administration denied that. I 
have only been in Congress 18 months but I will say as I have 
heard you say again and again here, there is confusion. It is 
our intent. We need to do a better job. We should make that 
clear. The problem is, the public doesn't trust the EPA. The 
farmers don't trust the EPA to not overreach. Congress doesn't 
trust the EPA. And what we have here today is a proposed rule, 
defective. As you have stated, we need to make things clearer. 
Our intent is not clear. We need to do a better job. But the 
rule is out there, and the very fact that you intercepted our 
questions and thought you had the audacity that you had that 
control, none of us trust for two seconds that the EPA isn't 
just going to let this train roll right down the tracks and 
saying all these good things and putting things on your blog 
doesn't make it so, especially when what you have shown is a 
disregard for listening. You don't listen. And if you don't 
listen, what is going to happen. So you are saying you are 
getting this input, you are getting this input. Frankly, 
Congress doesn't trust you, the Farm Bureau doesn't trust you, 
counties don't trust you, the public doesn't trust you to 
simply ignore all that you are hearing, and when you say that 
these puddles and streams aren't regulated and then you put on 
your blogs they are not regulated, but it is not clear. So I 
don't understand why in our very simple request, withdraw the 
rule. Send it back to the agency. Then if you come out with a 
proposed rule, as you say, to take this further, at least it 
would be there. It is not there now. All these things you are 
claiming are not intended, I mean, do you agree, they are just 
not there now?
    Mr. Perciasepe. There is a difference between making it 
clearer because others are trying to make it unclear and 
whether I believe the rule we proposed does what I say, because 
I believe it does. So I believe that it does and meets the 
intent of what I am saying----
    Mr. Collins. Do you care that a majority of the Members of 
Congress, Republicans and Democrats alike, don't agree with 
you? That apparently doesn't--see, that is the arrogance of 
your agency. You are just displaying right here in front of us.
    Mr. Perciasepe. I am not being arrogant. I am telling you--
you asked me what I believe, and you are trying to tell me what 
I believe. I am telling you that I believe we need to do a 
better job of explaining----
    Mr. Collins. Why not withdraw the rule and start over?
    Mr. Perciasepe. Because I believe the rule does what I am 
saying.
    Mr. Collins. But Congress doesn't agree with you. The Farm 
Bureau doesn't agree with you. My counties, they are all 
passing regulations----
    Mr. Perciasepe. I also have the Supreme Court saying we 
need to do rulemaking. I have hundreds of letters saying we 
should do rulemaking.
    Mr. Collins. Well, this one is so defective. All we have 
asked is, withdraw it, because you have got a process moving. 
At the end of all of your fact gathering, you come up and say 
we think it is just fine. I mean, you are saying right now you 
think it is just fine but then again, you say we need to do 
better, it was our intent, we need to make it clear. So you are 
almost contradicting yourself, that you are saying the rule is 
fine but then you are saying we need to do a better job. If it 
is fine, why do you need to do a better job?
    Mr. Perciasepe. I want to say again there is a difference, 
and I am not being disrespectful. There is a difference between 
explaining and perhaps writing it more clearly than saying that 
what we intended to do we didn't do. We intended to exclude 
conservation practices. People read that differently. I think 
they are reading it too narrowly, but we will even expand on 
that.
    Mr. Collins. I understand----
    Mr. Perciasepe. This is what goes on in normal comment 
period that you do when do an administrative process.
    Mr. Collins. I will just state for the record the problem 
is, we don't trust the EPA. We the people don't trust the EPA. 
Congress doesn't trust the EPA. The rulemaking is rolling down 
the tracks. We have, and I think it was a reasonable request 
signed by a majority, Republicans and Democrats in Congress, 
that have said withdraw the rule, send it back to the Agency, 
and then if you want to come out with a new rule, have these 
exclusions in it right from the get-go at which point maybe we 
would trust what you are going to do.
    Mr. Chairman, I yield back.
    Mr. Schweikert. Thank you, Mr. Collins. And Mr. Collins has 
a UC request to put a couple letters into the record. Are there 
any objections? No objections heard. So ordered.
    [The information appears in Appendix II]
    Mr. Schweikert. Ms. Esty.
    Ms. Esty. Thank you very much, and thank you for being with 
us here today. I would like to turn a little bit to climate 
change and the expected impact or possible impact and how that 
would tie into these regulations and the Agency's thinking.
    According to the Third National Climate Assessment, 
droughts are expected to intensify in most regions of the 
United States. Additionally, flooding is projected to increase 
even in areas where total precipitation is expected to decline, 
the basic message being that climate change will have a 
dramatic impact on water demand and water use. Could you 
comment on the importance of the proposed rule and protecting 
the Nation's water supply in light of these projected impacts 
of climate change? Thank you.
    Mr. Perciasepe. Thank you. Well, I think stepping back just 
a little bit, recognizing that from surface waters in the 
United States, in these tributaries or in these traditionally 
navigable waters, about 100 million people in the United States 
get their drinking water from surface waters. It is more than 
100 million but I am just going to use that number. The quality 
of the water coming into their systems is affected by how 
development takes place or pollution is discharged above the 
streams where they receive it. This is one of the key things 
that the Science Advisory Board pointed out to us, that you 
have to look at that connection. And so having proper 
jurisdiction and availing of the pollution control programs 
that are in the Clean Water Act to those areas is a pretty 
important thing to protect drinking water. On the wetlands 
side, when you have more erratic meteorological events or 
weather events, wetlands provide a very effective flood control 
and flood mitigation function, again, well established in 
science, and these are key things that also are a very strong 
reason why as states and cities and counties are starting to 
look at how they can be more resilient in the face of climate 
change, that they also are looking toward how not only do they 
do some additional work with green infrastructure but also how 
they maintain the existing natural systems so that they can get 
the attenuation from those. So those are some quick points on 
that.
    Ms. Esty. I hail from the State of Connecticut, and we both 
along our coastlines have been looking at these issues as well 
as significant issues around borders around our streams for 
exactly this reason, to attenuate the flooding that we have 
been seeing with these more intense weather events.
    In your testimony, you discuss the importance of clean 
water to the Nation's economy, listing numbers of businesses 
and industries that need a reliable supply of clean water to 
function. Can you elaborate a little bit on how the agency is 
thinking, is the agency looking not just at health effects but 
also at economic impacts for those industries that actually 
utilize clean water?
    Mr. Perciasepe. Well, I think three sectors in the economy 
who absolutely rely on clean water are agriculture, sports, 
outdoor recreation, hunting and fishing, and manufacturing, I 
will say Coca-Cola or Pepsi Cola or some other drink. They need 
supplies of clean water, and this is where there is a natural 
partnership with our colleagues in the agricultural community 
because they are stewards of the land and they need to have 
that same objective in mind. And so, our approach here is to 
build on their ability to do conservation work, and that is 
what we want to be able to encourage. So these are pretty broad 
sectors but they are pretty--clean water is pretty important to 
them.
    I might add that many of our developed parts of the 
country--cities--have turned back to the waterfronts as a way 
to spur on economic development and revitalization of their 
communities. Baltimore, just north of here, the Potomac River, 
Cleveland, all of these places have had a resurgence of the 
vitality of their community around cleaner water than it was 40 
years ago. So these are pretty important aspects.
    Ms. Esty. And finally, if you could quickly comment on the 
inclusion of ``all adjacent waters'' rather than ``adjacent 
wetlands.'' This is an issue I have been questioned about at 
home. Thank you.
    Mr. Perciasepe. There are three perhaps kinds of adjacent 
waters. ``Waters'' is a more general term. You could have an 
intermittent or a perennial stream that has the characteristics 
of a bank and a bed and a normal--an ordinary high-water mark. 
You could also have wetlands which have the hydric soils and 
the hydrophitic vegetation but you could also have a standing 
lake. So all of those would be waters, and determining whether 
they are adjacent to a navigable water are the tests we are 
trying to develop here in this proposal.
    Ms. Esty. My time is expired. Thank you, Mr. Chairman.
    Mr. Schweikert. Thank you, Ms. Esty. Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman, and Mr. Perciasepe, 
thank you for joining us here today.
    I would like to take off a little bit on the exchange that 
you had with my colleague, Mr. Collins. Let me tell you why I 
believe that Congress in general and the American people 
specifically don't trust the EPA. You made a statement just a 
few minutes ago. You said the Supreme Court has said that the 
EPA needs to do a rulemaking. I think that is what I heard you 
say. I think what the Supreme Court actually said is that under 
the law, you have the authority to do rulemaking. I think that 
is what the Supreme Court said. And I think what the American 
people, who by the way all three branches of the Federal 
Government is subject to the American people, I think what they 
expect the EPA to do is to provide a responsible regulatory 
environment that protects public safety, protects public 
health, but that does not disadvantage American businesses and 
American workers and cripple our economy, and from the shutdown 
of the coal industry through EPA regulations, through the 
stranglehold that EPA regulations have over our manufacturing 
sector, you name it, that is why the American people and 
Congress don't trust the EPA.
    Let me go into a few questions here with you. You know, 
there are enough new definitions and new ideas in this 
rulemaking that it is obvious that agencies will spend money 
figuring out how to actually implement this rule, and it is 
clear that the EPA is driving the bus, even though the Army 
Corps of Engineers, key permitting programs will also be 
affected. It is also apparent that other agencies' programs 
could be affected, given that the rule which is all corners of 
the Clean Water Act and not just the wetlands programs. So has 
the EPA consulted with other federal agencies that have 
administrative responsibilities under the Clean Water Act as 
well as considering the costs that these agencies will incur 
when the rule is implemented?
    Mr. Perciasepe. In order to put out a proposal under the 
Administrative Procedures Act and under the Executive Orders 
that we operate under in terms of the Office of Management and 
Budget, all proposed rulemakings that EPA or any other agency 
does go through an interagency review process for 90 days 
before they----
    Mr. Johnson. What feedback have you gotten from those other 
agencies? Does the EPA know how other agencies will interpret 
this rule and whether other agencies will require more 
resources to understand how this rule affects their ability to 
administer their own programs? Have you reviewed that input 
from the other agencies?
    Mr. Perciasepe. We took it into account when we did the 
proposal, and for instance, the work we did to try to identify 
the conservation practices that would be clearly exempt from 
having to have a clean water permit was something we worked on 
directly with the Department of Agriculture before----
    Mr. Johnson. What did the Army Corps of Engineers say?
    Mr. Perciasepe. Well, they are coauthors of the rule.
    Mr. Johnson. Okay. So they provided you input?
    Mr. Perciasepe. They helped write it.
    Mr. Johnson. Okay. If small businesses have never obtained 
a permit under the Clean Water Act before, how do they know if 
they will need to get a permit under this new rule?
    Mr. Perciasepe. Well, it depends on what their action is. 
Are they discharging pollution?
    Mr. Johnson. How will they know whether their action 
requires it?
    Mr. Perciasepe. Well, if you discharge pollution, you have 
to get a permit. I mean, that is the current law.
    Mr. Johnson. Well, I mean, they may know that now but they 
never had to do it before, so how will they know if this 
additional rule will require them to do a permit?
    Mr. Perciasepe. Well, if you do not have--if you are not 
regulated under the Clean Water Act now under the existing 
regulations, you will not be regulated under this proposal.
    Mr. Johnson. Say that again.
    Mr. Perciasepe. We are not expanding the jurisdiction of 
the Clean Water Act.
    Mr. Johnson. Okay.
    Mr. Perciasepe. So unless they are operating illegally 
under the current regulation, they would not have to----
    Mr. Johnson. How long on average will it take the Agency to 
determine--let us say a business comes to the Agency and says 
we think we need a permit. How long on average will it take the 
Agency to determine whether a permit is required?
    Mr. Perciasepe. Well, I don't have any information on that 
right here. Our estimate is that there will be a reduced time 
because we will have better definitions of where the 
jurisdiction is, and so that step of trying to determine 
whether or not it is a jurisdictional water or not, which 
currently goes on under the 2008 guidelines that were put out 
in the 1986 regulations that are in place would be reduced. The 
number of those analyses would be reduced. So the Corps of 
Engineers clearly feels that they would have a reduced amount 
of time doing those because they would have a reduced number of 
those jurisdictional determinations that they would have to do. 
But I don't have an estimate from them right now or I don't 
know what their estimate is on that.
    Mr. Johnson. Okay. Thank you. Mr. Chairman, I yield back.
    Mr. Schweikert. Thank you, Mr. Johnson.
    Ms. Edwards.
    Ms. Edwards. Thank you very much, Mr. Perciasepe, for being 
here.
    And I just want to say for the record that I am one of the 
Members who actually both appreciates and respects and values 
the work of the Environmental Protection Agency and the hard 
work that the folks at the EPA do every single day to protect 
our water, to make sure that our air is clean and that our 
health as a result is safe. And so it is not a foregone 
conclusion that the Members of Congress don't like or respect 
or value the EPA, and I think it is important for us to clarify 
that for the record and then other Members who feel otherwise 
can speak their piece but I have spoken mine.
    I want to go to some of the questions that you tried to 
address earlier and in your testimony. I want you to describe 
if you would the variability that exists across the country in 
interpretation of the scope of the Clean Water Act following 
the Supreme Court decisions and tell me if you would what other 
areas were considered jurisdictional by some states and not by 
others that has resulted in what you describe in your testimony 
as the lack of clarity following those decisions?
    Mr. Perciasepe. The clarity issue--and again, we have 
defined in this proposal clear hydrologic science-oriented 
approaches to determining jurisdiction as opposed to the 
general one under the current regulations, which is will it 
have an effect on interstate commerce. So I think that is 
pretty important and it is going to really instruct the field 
people who do this work, mostly in the Army Corps of Engineers, 
to have a more consistent approach and a more consistent sense 
of how they get the work done.
    I think that that is my primary reason why I believe that 
this would be a significant improvement over the existing 
situation, and I--which I--and I am highly confident that the 
comments we are getting through the normal administrative 
process will help us even further improve that.
    Ms. Edwards. And let me ask you about that normal 
administrative process because you issued the rule in--the 
proposed rule, and let's be clear that it is a proposed rule in 
April; then you did extend the time period I believe for 
response because you heard from people that they--from States 
and from affected individuals, companies, et cetera, that they 
wanted to be able to respond, and so you have extended that. 
And so now comments are due by October 20. Is that correct?
    Mr. Perciasepe. Yes. I think it is 20. It might--I--21st, 
20th----
    Ms. Edwards. Around----
    Mr. Perciasepe. October, yes.
    Ms. Edwards. Needless to say, it is from April now extended 
October 20 and we still haven't gotten to a place where you 
have begun to then assemble all the comments, sift through 
comments, review the work of the SAB, and then incorporate that 
into what might then become a final rule, is that correct?
    Mr. Perciasepe. That is correct, but again I am being open 
here in saying that we have seen patterns already from our own 
conversations, mine personally, where I think there are some 
things that are just--people are not reading it or whatever and 
then some are where we need to do the work that you normally do 
in an administrative process to improve how things are written. 
So I think we will have more of it.
    I want to also mention because I think this is important to 
this Committee, one of the other reasons we extended the 
comment period in addition to the fact we were getting a lot of 
comments is we wanted to make sure, as I have committed, that 
the work on the final rule would be not only aided by some of 
those comments but also aligned with the Science Advisory 
Board's process. You know, they are going to look at this rule 
itself and they are also going to look at the connectivity 
report that was associated with it, but their work will be done 
in the fall time frame as well. So we want to make sure that we 
get aligned with the Science Advisory Board.
    Ms. Edwards. Thanks. And just to go back to an earlier 
point, do you have some estimate of how long it takes under the 
current guidelines to make a jurisdictional determination?
    Mr. Perciasepe. I don't. I apologize to everyone who asked 
this question. I don't have some information on that but I am 
happy to get whatever information we have with the Corps of 
Engineers on the current amount of time it takes to generally 
go through a jurisdictional----
    Ms. Edwards. I think that that would be useful because I 
think it would help to underscore why it is that we need to 
bring some clarity that would begin to refine the 
jurisdictional determination period because that again would 
help in terms of moving forward decision-making. And so 
anything you could do in that regard would be helpful.
    I want to further ask you if you can elaborate on the role 
of the--of clean water in supporting the American economy? What 
does it mean when we have clean water in terms of its economic 
impact?
    Mr. Perciasepe. Well, I think we have had an opportunity to 
talk about this a little bit but I will just summarize here. I 
think that there are a couple of key areas where clean water is 
pretty essential in addition to human consumption is 
agriculture. Agricultural productivity in the country depends 
on clean water and the ability to move it around and unimpaired 
by unnecessary regulations. It--many manufacturers require 
clean water or they end up having to spend money to treat it 
themselves to use it, and I want to say also that many 
communities and their--the quality of life in a community is 
improved by having water bodies nearby that people feel 
comfortable that they can recreate in and around, and I will 
just point to the Potomac River as an example.
    Ms. Edwards. Thank you.
    Thank you, Mr. Chairman.
    Mr. Schweikert. Thank you, Ms. Edwards.
    Mr. Broun.
    Mr. Broun. Mr. Chairman, before I start my time I have a 
unanimous consent request. Administrator Perciasepe made a 
comment that agriculture and business are in favor of this new 
rule and I have got two letters, one from Gary Black, our 
Georgia Commissioner of Agriculture from the Department of 
Agriculture in Georgia, opposing this rule, as has been 
presented. The other one is from Chris Clark, who is the 
President and CEO of the Georgia Chamber of Commerce again 
opposing this rule.
    And I ask unanimous consent that these be entered into the 
record.
    Mr. Schweikert. Without objection, so ordered.
    [The information appears in Appendix II]
    Mr. Broun. Since I haven't started my question, please 
restore my time. I would appreciate that.
    Administrator Perciasepe, I have to hand it to you and 
compliment you. In my four terms in Congress, you are one of 
the very best witnesses I have ever seen of filibustering a 
question and not answering, and that is not only to Republicans 
but it is Democrats also.
    Now, the Chairman showed you a map, the Connectivity Report 
Map. You made the statement that you already had control over 
all of that property, is that correct? Yes or no?
    Mr. Perciasepe. We do not control----
    Mr. Broun. No, you said that you----
    Mr. Perciasepe. --the land. I want to make it clear----
    Mr. Broun. You control the water over that--on all that 
area----
    Mr. Perciasepe. We do not.
    Mr. Broun. --in that map, correct? Yes or no?
    Mr. Perciasepe. You know, I am not going to do that.
    Mr. Broun. Well, you did say that. Are you expanding your 
authority here with this proposed rule?
    Mr. Perciasepe. No.
    Mr. Broun. None whatsoever?
    Mr. Perciasepe. No.
    Mr. Broun. Why have the new rule then?
    Mr. Perciasepe. Because the existing rule, as I mentioned, 
is based on flawed approaches to determining jurisdiction. It 
is actually more broad than the Supreme Court has asked us to--
--
    Mr. Broun. Well, let me ask you this then. Do you believe 
this rule improves the overall clarity of EPA's jurisdictional 
authority? Yes or no?
    Mr. Perciasepe. Yes.
    Mr. Broun. You think it does? Well, you are absolutely 
incorrect. You can just see the questions that we are asking 
here. This rule is not needed. The Supreme Court didn't tell 
you to make a new rule. It said that you could. And to me it is 
expanding the authority and reach of the EPA and that is the 
reason there is so much discontent all across this country, not 
only in my State of Georgia but in every State in this country 
because you all are expanding your authority.
    Now, you talked about if anybody wants to put a pollutant 
into water, they have to get a permit. EPA has recently--fairly 
recently said that CO2 is a pollutant. We are all 
breathing out a pollutant according to you all's determination. 
Now, given the importance of this issue, why has the EPA not 
done more original research on this issue and looked at a 
number of questions such as significant nexus?
    Mr. Perciasepe. Yes. Well----
    Mr. Broun. Quickly, please. I don't have much time. I have 
got a number of questions. Why have you not done the research?
    Mr. Perciasepe. We have looked at over 1,000 peer-reviewed 
studies that have already been done.
    Mr. Broun. You just looked at the literature, is that 
correct? You have not done any more research than----
    Mr. Perciasepe. Our scientists compiled a synthesis report 
on the existing research that exists----
    Mr. Broun. But you have not done any original new research, 
is that correct? Yes or no?
    Mr. Perciasepe. Not----
    Mr. Broun. No, you have not. It looks like the EPA has been 
cutting corners by not doing a new study. Shouldn't EPA's 
rulemaking be based on sound science as determined 
independently by the Agency?
    Mr. Perciasepe. It is based on sound science.
    Mr. Broun. No, sir, it is not. And in fact you even 
intercepted our questions against the law and are, as the 
Chairman and Mr. Cramer was talking about, you have gone 
against what should be done. Why did EPA not do a new study 
given the Supreme Court's rulings that previously rejected 
EPA's reliance on bed, banks, and high water mark, why only a 
literature review?
    Mr. Perciasepe. I am not aware that the Supreme Court 
rejected bed, banks, and ordinary high water mark. I know that 
they rejected in the SWANCC opinion making jurisdictional cause 
solely on the basis of migratory birds, which gets me back to 
the interstate commerce problem of the existing regulation 
asking field biologists and hydrologists to make a 
determination of what is affecting interstate commerce. So we 
need to get away from that. The Supreme Court wants--would like 
us to get away from that.
    I want to clarify for the record, Mr. Chairman, that Chief 
Justice Roberts did suggest that the Agency conduct a 
rulemaking.
    Mr. Broun. But was you all's proposed rule is so unclear 
that everybody--farmers, businessmen, landowners, politicians, 
Democrats, and Republicans alike--are requesting you all to 
take away this proposed rule, to abandon it and do something 
else, and I request that you do the same thing.
    It is beyond me why you all are continuing to do so. You 
are cutting--with your coal rules, your--the President has been 
very clear. He wanted to shut down the coal industry. He said 
he is going to bankrupt any company that puts out a new coal 
plant. And he is--he and you all, through the EPA, is doing 
just exactly that. In fact, you are shutting down 15 power 
plants in Georgia, and it is not fair to poor people and senior 
citizens on limited income because, as the President said, his 
policies are going to necessarily skyrocket the cost of energy, 
and that is exactly what you guys are doing at the EPA and that 
is unfair, unfair to poor people. It is unfair to senior 
citizens who have a limited income. And what you are doing now 
is expanding the jurisdiction and scope of the Corps of 
Engineers as well as the EPA. Would you agree--one question--
one final question since my time is up. Would you agree that 
every drop of water that falls on this country is going to 
eventually wind up potentially in a navigable stream? Yes or 
no?
    Mr. Perciasepe. That is the science of hydrology.
    Mr. Broun. Well, yes or no?
    Mr. Perciasepe. Yes.
    Mr. Broun. It does. And what you are going to do as you are 
going to----
    Mr. Perciasepe. It could end up in groundwater----
    Mr. Broun. --control every----
    Mr. Perciasepe. It could end up being groundwater or----
    Mr. Broun. You are going to control every piece of land and 
every landowner.
    Mr. Chairman, I yield back.
    Mr. Perciasepe. But those are not jurisdictional. The 
backyard water is not jurisdictional. Mr. Chairman, can I 
please----
    Mr. Schweikert. No, we will come back to that.
    Mr. Broun, thank you.
    Mr. Hall.
    Mr. Hall. I think this is a very interesting hearing, Mr. 
Chairman, and I thank you. I have learned a lot about 
arrogance. I agree with Mr. Collins and I think Dizzy Dean 
always said that it ain't bragging if you could do it and I 
have always heard the professor asked one of his students did 
he know the difference between ignorance and apathy? He said he 
didn't know and he didn't care so I think I have got an idea 
about what you are going through out there because Ms. Edwards 
recommends you and enjoys you and sees the best in you and she 
is a lady and attempting to do what all of us are doing, trying 
to get you to tell us the truth, to do what you say you are 
going to do.
    And I thank you for holding this hearing, Mr. Chairman. 
This controversial proposal that raises a lot of questions 
about the rules, the potential impact on property owners, on 
businesses, States, and I want to examine just some of these as 
long as I have the time.
    First, I would like to submit a letter and a resolution for 
the record from the Morris County Commissioners Court in my 
district. Morris County Judge Linda Munkres writes that 
``Morris County is against any action by the EPA and the Army 
Corps of Engineers that would infringe upon the sovereignty of 
Texas to appropriately regulate water to the State of Texas.'' 
She continues, ``if adopted, this would increase the need for 
burdensome and costly permitting requirements that infringe on 
private property rights and circumvent the legislative process 
and the will of the people of Texas.''
    Now, to go on, in February this Committee heard testimony 
from Kenneth Dierschke, President of the Texas Farm Bureau, 
expressing farmers' concern with the proposed rule that would 
mean more permits, more permit requirements, and the threat of 
additional litigation against farmers and ranchers, and he also 
expressed concern that EPA seems to routinely ignore the 
requirement that Science Advisory Board panelists be fairly 
balanced.
    Mr. Administrator, as you know, the EPA Administrator's 
Office is responsible for appointing members of the Agency's 
scientific advisory panels, including the Science Advisory 
Board, and late last year EPA assembled a panel to review the 
Agency's Draft Connectivity Report, a highly influential 
assessment that you stated would inform EPA's expanded 
interpretation of its power under the Clean Water Act.
    Well, your office appointed 27 experts to this panel. Many 
of these 27 were state, local, or tribal regulators. How many 
do you think were? It is my understanding that answer is zero. 
Nine highly qualified state and local experts from the Arizona 
Department of Water Resources and the North Carolina Division 
of Water Quality and elsewhere were nominated to serve on this 
panel. Why did the EPA not appoint any of these state and local 
experts?
    Similarly, last year EPA assembled a Science Advisory Board 
panel to review the Agency on ongoing study of hydraulic 
fracturing. Thirteen qualified scientists from state and local 
agencies were nominated, including two top-notch toxicologists 
from the Texas Commission on Environmental Quality. Despite 
their vast experience, Mr. Administrator--their experience with 
oil and gas regulation, none of these nominees were appointed 
to the 39-member board and I wonder why they weren't.
    And would you explain in some areas that lacked local water 
quality regulation of oil and gas activities state and local 
officials have more expertise than the EPA, would you agree 
that the States have decades if not centuries of experience in 
some of these areas?
    Former Chairman of the Railroad Commission, Elizabeth Ames 
Jones, has so testified before this Committee. And I ask you 
will you commit to appointing geographically diverse state and 
local experts to all EPA's scientific panels in the future?
    And finally, sir, in view of the potential impacts and 
costs of the EPA's proposed rules, shouldn't the States have 
more opportunity to provide input and shape a rule because they 
will bear so much of the cost?
     EPA says it has consulted with States regarding a proposed 
rule, but in your recent testimony before the House 
Transportation and Infrastructure Committee, you cannot name a 
single state that had come out in support of the rule and you 
promised to survey the States. Has that survey been conducted 
and what methodology is being used to conduct the survey?
    Mr. Chairman, the rule has far-reaching implications that 
need to be thoroughly, absolutely thoroughly examined, and I 
thank you for your leadership on this Committee. I yield back 
the time that I am absolutely out of, so maybe you will answer 
this in a letter I will send to you.
    Mr. Chairman, I yield back two seconds.
    Mr. Schweikert. Thank you, Mr. Hall.
    And, Mr. Hall requests a U.C. to put documents in the 
record?
    Mr. Perciasepe. I will respond for the record.
    Mr. Schweikert. Put documents in the record, so ordered.
    [The information appears in Appendix II
    Mr. Hall. Thank you.
    Mr. Schweikert. Even though he is out of time, please give 
us a bit and then we will continue to move on.
    Mr. Perciasepe. Thank you, Mr. Chairman.
    We do have a defined process for picking members of the 
Science Advisory Board. It is a public process. An 
advertisement goes out to get nominees. You mentioned that some 
of those nominees came in. They are screened by the SAB staff 
for conflicts of interest and ethics issues and we do strive to 
have a diverse board, so I would certainly commit to looking at 
how we can continue to improve to do that and it is our intent 
to have a diverse board. And I want to----
    Mr. Schweikert. And on that----
    Mr. Perciasepe. --absolutely agree that the states have 
significant and important--and we need to rely on expertise in 
the area of hydraulic fracturing.
    Mr. Schweikert. And for the staff sitting behind you, if 
you would be willing to send Mr. Hall a note----
    Mr. Perciasepe. Yes. Yes. Absolutely.
    Mr. Schweikert. --sort of explaining some of the mechanics.
    And with that, Mr. Hall, because I am going to do some 
switching around with my own slot, Mr. Hultgren, please.
    Mr. Hultgren. Thank you, Chairman, so much. I appreciate 
your flexibility on that.
    First, I would ask unanimous consent to submit for the 
record a letter from the Illinois Chamber of Commerce in 
opposition to the rule. I am gravely concerned about what they 
talk about would significantly add to the already unprecedented 
level of uncertainty our members face from new rules and 
regulations so I would ask that the----
    Mr. Schweikert. U.C. requested. Any objections?
    So ordered.
    [The information appears in Appendix II]
    Mr. Hultgren. Thank you, Mr. Chairman. Thank you, 
Administrator, for being here today.
    It really is crucial that the EPA regulations are based on 
science, so I appreciate you being here so that I can learn and 
try and explain to my constituents the process that you all go 
through before drafting and finalizing new rules and 
regulations. My concerns will deal directly with the scientific 
advisory board. So the first thing I will ask, and I hope this 
will be a simple ``yes'' answer, but does EPA hold the findings 
of its scientific advisory board in high esteem?
    Mr. Perciasepe. Extreme high esteem.
    Mr. Hultgren. This is certainly good to hear because 
science should always be the backbone of what you are doing it 
EPA, something your Administrator frequently cites and that we 
normally hear when receiving testimony from your agency before 
this Committee. Interestingly enough, it was not in your 10-
page written testimony here today.
    I understand that a draft rule is just that, a draft, but 
you have said throughout your testimony that this rule is 
something that is supposed to bring clarity to the jurisdiction 
that the Agency already has. Unfortunately, as we can see from 
discussion today, this rule is not very clear and my 
constituents have a number of questions about how it will be 
affecting them.
    In the draft rule, does EPA define what a shallow 
subsurface hydrological connection is? Is this something you 
leave to further examination of the literature or is it 
expressly defined in the rule? And at what depth does water 
below the surface cease to be shallow subsurface and turn into 
groundwater?
    Mr. Perciasepe. The use of the shallow subsurface water I 
think--I am going to say I think----
    Mr. Hultgren. Does it define--my question was does the EPA 
define what sub shallow subsurface hydrological connection is--
or is that left to further examination of the literature as 
expressly defined in the rule?
    Mr. Perciasepe. It is something that the Science Advisory 
Board is looking at. It is something they gave us some advice 
on in their draft statement, but I want to point out and I want 
to be really clear, groundwater is not covered by this rule.
    Mr. Hultgren. So this is not expressly defined in the rule 
and the depth where water ceases to be shallow surface and turn 
into groundwater is not defined, so that is--although you are 
saying it is not under the rule, the fact is it is not defined 
of when it turns into groundwater and therefore does fit under 
the rule.
    Let me keep moving because my time is going to go away.
    In comments on the connectivity report, the scientific 
advisory board recommended EPA consider where along a gradient 
of connectivity groundwater connections are of sufficient 
magnitude to impact the integrity of downstream waters. The 
scientific advisory board stated ``this represents an important 
research need for EPA.'' Considering this is still an active 
research need and the connectivity report is being used by EPA 
to support the proposed rule, how does EPA justify the use of 
shallow subsurface groundwater connectivity to determine 
jurisdiction?
    Mr. Perciasepe. We use--the rule--and I think there are a 
number of different pieces of what you have just suggested 
there, but the rule uses the connection with subsurface shallow 
groundwater as a way to determine adjacency, not--the 
groundwater, I want to be clear, whether it is shallow, deep, 
anywhere, is not covered by this rule. It is just a hydrologic 
tool to determine whether or not----
    Mr. Hultgren. See, the problem is it is unclear where it 
goes from one to the other and that is--if you are having 
trouble explaining it to us, guess what my constituents are 
having trouble doing?
    Mr. Perciasepe. Oh, I am just telling you----
    Mr. Hultgren. They are having great difficulty----
    Mr. Perciasepe. Subsurface groundwater is not covered by 
the rule.
    Mr. Hultgren. Mr. Perciasepe, but it slips into it. That is 
what they are saying is that it becomes--there is--it is 
undefined of when it moves from sub--shallow subsurface 
hydrological shallow subsurface into groundwater.
    Let me--I have got less than a minute. How can a regular 
citizen be expected to know whether or not they are digging 
into something that would be groundwater which would, as you 
say, is exempt under the rule or shallow subsurface water where 
the CWA comes into play? Is it the responsibility of the 
landowner to review the literature since it is not clearly 
defined in the rule?
    Mr. Perciasepe. They are both not covered by the rule.
    Mr. Hultgren. So you are saying shallow subsurface water is 
not covered under the rule?
    Mr. Perciasepe. Correct. It is used has a hydrologic tool 
for field people to determine the adjacency of a----
    Mr. Hultgren. In the shallow subsurface hydrological 
connection. That is the connectivity.
    Mr. Perciasepe. That is the hydrologic that it looked at to 
see whether the surface water feature might be adjacent to a 
traditionally navigable----
    Mr. Hultgren. The message I got----
    Mr. Perciasepe. Actual groundwater is not jurisdictional.
    Mr. Hultgren. This is less clear to me than when I walked 
in here. I think it is probably the same for my constituents, 
huge concern. I hope if nothing else you get the fact that we 
are concerned about this. There is already such a lack of 
clarity in so many of the rulemakings, this one probably more 
than anything else we are hearing huge concerns from business, 
from farmers. I have got a great business community. I have got 
a great agriculture community in my district. They just don't 
understand this and they are scared to death. We need clarity. 
We need to take a step back.
    With that, Chairman, thank you so much for your indulgence 
and I yield back.
    Mr. Schweikert. Thank you, Mr. Hultgren.
    Mr. Weber.
    Mr. Weber. Thank you.
    Mr. Perciasepe, the proposed rule asserts jurisdiction over 
perennial strains, is that right?
    Mr. Perciasepe. Yes.
    Mr. Weber. Okay. Love the short answers. What about 
intermittent and ephemeral strains?
    Mr. Perciasepe. Yes.
    Mr. Weber. Okay. Canals and ditches?
    Mr. Perciasepe. Mostly no.
    Mr. Weber. Lakes, estuaries?
    Mr. Perciasepe. Estuaries----
    Mr. Weber. Okay.
    Mr. Perciasepe. --lakes, yes.
    Mr. Weber. We put up a map here which is provided by the 
U.S. Geological Survey, USGS, that shows these features in my 
State, the State of Texas where I live. I would love to--I 
claim it as mine of course. I am very proud of it.
    The key shows the colors that correspond to the features. 
Now, missing from this map are wetlands, ditches, and other 
features that the EPA and the Army Corps of Engineers claim 
jurisdiction over. Can you see that map?
    Mr. Perciasepe. I see the map but I want to be clear we are 
not claiming jurisdiction over ditches.
    Mr. Weber. Okay. Well, this map is not for regulatory 
purposes. We had them made by the USGS based on some of the 
EPA's--just some of the EPA's definitions. The map is dramatic. 
But shockingly, what I have read of the proposed rule, the EPA 
could go farther than what we see here. In fact, the EPA cites 
a study that estimated that the USGS maps under-represent 
drainage networks by 64.6 percent. That is their quote. Scale 
up the features covered by 60 percent and include wetlands, and 
we are looking at a regulated area close to double the size of 
what is on this map. Yet remarkably, you claim that the 
proposed rule does not--you said this in exchange with one of 
the other Members--it does not extend the Agency's authority. 
Then he asked you then why do you need the rule?
    There is no way that this is what Congress intended. The 
Supreme Court has rebuked the Agency for claiming authority 
over areas that are remote from waters that are ``navigable in 
fact.'' So why is the EPA disregarding the Supreme Court and 
Congressional intent? Is the EPA above the other branches of 
the Federal Government? Are you above the Constitution?
    Mr. Perciasepe. Absolutely not.
    Mr. Weber. I would agree with that. But it doesn't appear 
to the American public like--that is you all's mindset.
    Let me follow up on a question asked by Chairman Smith. I 
understand that the EPA has asked the United States Geological 
Survey to make maps similar to this one here for every State. I 
think it is important that the EPA release these maps as part 
of this rulemaking process. Today's entire hearing has been 
about what is and what isn't covered by this proposal. And as a 
part of the Randy caucus down there said earlier, and EPA's 
answers aren't making the situation any clearer. And I would 
add the truth isn't exactly flowing around here. The EPA needs 
to release these maps so our constituents can identify for 
themselves whether they are subject to regulation.
    So here today will you commit to releasing these maps that 
the EPA had made before the end of this month so that people 
can comment on them as part of the rulemaking process as the 
Chairman has requested?
    Mr. Perciasepe. These maps have come up before and I have 
to apologize. I am actually really not familiar with them.
    Mr. Weber. You are in the dark about this?
    Mr. Perciasepe. I----
    Mr. Weber. As most of our constituents are about this 
proposed rule.
    Mr. Perciasepe. That is unfair.
    Mr. Weber. Unfair. That is our constituents' perception out 
there.
    Let me go on. Mr. Chairman, I think that it is important 
enough that if this agency doesn't release the maps by the end 
of July, that this Committee compel the release.
    My constituents, our constituents are confused and quite 
frankly scared by this proposal, this overreach. I think the 
only way we can get to the bottom of what is being planned here 
for regulation is to see it laid out on a map. So here today I 
request that you make available to us and the American people 
the maps that the EPA had made from the USGS, as well as the 
wetlands map made by the Fish and Wildlife Service. We want 
these maps. My guess is that they were created by--with 
taxpayer dollars unless I miss my guess. They should be 
available to the taxpayers in full disclosure and we want you 
to make these maps available.
    Mr. Chairman, I yield back 10 seconds.
    Mr. Schweikert. Sorry, Mr. Weber. And we were discussing 
whether there should be a penalty box for puns.
    Dr. Bucshon.
    Mr. Bucshon. Thank you, Mr. Chairman.
    First of all, I would like to ask unanimous consent to 
enter into the record an analysis of EPA's connectivity study 
prepared by GEI for the Waters Advocacy Coalition. The Waters 
Advocacy Coalition is a large group of stakeholders that have 
come together with concerns about the rule and include everyone 
from farmers to homebuilders. The analysis point out flaws and 
with the report's scientific vigor and draws into question the 
report's usefulness in a regulatory context.
    Mr. Schweikert. And we have a U.C.?
    Mr. Bucshon. Yes.
    Mr. Schweikert. No objection, so ordered.
    [The information appears in Appendix II]
    Mr. Bucshon. I would also like to introduce a letter from 
that Indiana Chamber of Commerce expressing concerns about the 
potential impacts of the rule on Indiana's economy.
    Mr. Schweikert. Any objection? So ordered.
    [The information appears in Appendix II]
    Mr. Bucshon. This is a letter to me and I will just read 
the last paragraph from the Indiana Chamber of Commerce. ``We 
ask that you stop EPA from finalizing this proposed rule that 
would create a significant amount of uncertainty and would 
impact the Hoosier business community in a detrimental way. It 
seems like another chapter in EPA's lengthy tome of 
bureaucratic overreach. It is time to put a stop to federal 
intrusion on intrastate matters, especially when the intrusion 
is occurring as a result of executive fiat versus Congressional 
passed legislation.''
    First of all, I would like to thank you for being here and 
thank you for your work at the EPA. I think just because we may 
have philosophical disagreements doesn't mean that you are not 
working hard to do your job and I understand that and I thank 
you for that. But we do have some philosophical disagreements 
probably on this proposed rule and I have got some concerns 
from my Indiana Farm Bureau.
    First of all, I mean this has been on the books for 30 
years. Why now?
    Mr. Perciasepe. The--one of the primary drivers is the 
fact--and this goes back to the previous exchange--that the 
Supreme Court has had two separate--actually more than two but 
two in particular where they have looked at the existing way 
the agencies plural, the Corps of Engineers and EPA, go about 
making jurisdictional determination. Where does the Clean Water 
Act apply? And again, where the Clean Water Act applies will 
only affect anybody if they are going to discharge pollution 
and it doesn't affect agriculture, so I want to be clear on 
that.
    But we have to change the way we go about doing that to 
comply with. And that is--you know, and here is where I think I 
agree with the mutual respect thing. I think we are trying to 
comply with what the Supreme Court has suggested is the way to 
go about doing it and I think it is totally appropriate but 
there may be a different point of view on that. So I am not----
    Mr. Bucshon. Okay. I will take you at your----
    Mr. Perciasepe. I am with you on that.
    Mr. Bucshon. I will take you at your word on that.
    Mr. Perciasepe. That is what we are trying to do.
    Mr. Bucshon. As far as exemptions go, who has the ability 
to eliminate exemptions once--say, for example--my main concern 
is jurisdictional here on this issue, States, local communities 
versus the Federal Government and the----
    Mr. Perciasepe. Yeah.
    Mr. Bucshon. --potential expanded jurisdiction of the 
Federal EPA over the states and the local communities. You 
know, people in agriculture, for example, they are touting 54 
exemptions to agriculture, but who has the ability to change 
the exemptions once the jurisdiction is established?
    Mr. Perciasepe. Yeah. Well, the exemptions are pretty--they 
are outlined generally in the Clean Water Act itself and what 
we are trying to do is define them a little bit more clearly 
working with the U.S. Department of Agriculture, particularly 
the exemptions that refer to conservation practices that take 
place on agricultural lands. So that would--those are--we feel 
they are already exempt but the need to clarify specifically 
which kinds of practices are exempt are what we are trying to 
do. We have heard from farmers that we are getting too specific 
and what if they did it in a slightly different way; would that 
then not cover it? So that is the kind of thing that we 
normally would here and try to fix.
    Mr. Bucshon. Yeah, because the concern I have which is many 
of my constituents do, and honestly I think the American 
people, not specific to the EPA but the Federal Government in 
general, once the Federal Government has jurisdiction but then 
the rules--that--you know, then the rules suddenly change. And 
I think you are saying that in healthcare. I am healthcare 
provider. I was a heart surgeon before coming here. You know, 
once jurisdiction has been established at the federal level, 
backing that away is, first of all, nearly impossible; and 
secondly, the concern is that the rules will change, including 
exemptions for agriculture or anything else. And so that is my 
concern.
    I do have a couple specific questions about----
    Mr. Perciasepe. Okay.
    Mr. Bucshon. --farming and I appreciate your response. 
These are concerns from Indiana Farm Bureau that farmers have 
told them. And, for example, ditches, if a farmer has a ditch 
that runs alongside between farm fields and those ditches carry 
rainwater that eventually flows to a stream or river, how can 
the farmer determine whether those ditches are excavated only 
in uplands and drain only uplands?
    Mr. Perciasepe. Well, based on what you described, that is 
what it is and it would not be jurisdictional.
    Mr. Bucshon. But the farmer determines that or the EPA 
determines that?
    Mr. Perciasepe. EPA doesn't determine it. The Corps of 
Engineers does the fieldwork. If the farmer wanted to discharge 
pollution into that or do--or something else, but we try to 
make it clear in the rule and for the first time the definition 
actually includes these exclusions of these kinds of ditches.
    Mr. Bucshon. Okay. If a farmer has a small depression area 
in their farm fields where water ponds after rain, how can a 
farmer know whether these are Waters of the United States under 
the proposed rule?
    Mr. Perciasepe. They are not.
    Mr. Bucshon. They are not?
    Mr. Perciasepe. They are not.
    Mr. Bucshon. It says that in the rule?
    Mr. Perciasepe. You know, I don't know exactly where it 
says it in the rule but they are not----
    Mr. Bucshon. Okay.
    Mr. Perciasepe. --because they don't meet the other 
definition----
    Mr. Bucshon. Yeah.
    Mr. Perciasepe. --of being a water. They don't have a bank 
and a high water mark. They don't have hydric soils. They are--
--
    Mr. Bucshon. Yeah.
    Mr. Perciasepe. --farmed lands which are----
    Mr. Bucshon. Yeah. And that is what I am trying to get at 
with these questions is where the rule--the level of 
uncertainty on the ground out in the community is about the 
proposed rule generates these type of questions. And so that is 
what needs to be cleared up because, again, from my 
perspective, once the Federal Government establishes 
jurisdiction, retracting that is a very difficult if not 
impossible, and also there is concern that the rules within 
that jurisdiction will change and you are getting this level of 
uncertainty amongst farmers. I just did an event in my district 
with farmers, Indiana Farm Bureau. All of these questions came 
up.
    Mr. Perciasepe. Right.
    Mr. Bucshon. The main question is jurisdictional, and with 
that, I am going to have to yield back.
    Mr. Perciasepe. Okay.
    Mr. Bucshon. Thank you, Mr. Chairman.
    Mr. Perciasepe. But, rest assured, wet farm fields are not 
jurisdictional. And I--just to add--to be--help a little bit on 
the jurisdiction thing, in almost every State, and I think 
probably every State, the States are responsible for 
implementing the Clean Water Act, so the jurisdictional 
determination may determine where they have to do their work 
but the States are the ones that do most--virtually all of the 
implementation.
    Mr. Bucshon. Thank you.
    Mr. Perciasepe. I am sorry, Mr. Chairman.
    Mr. Schweikert. Thank you, Doctor.
    Professor Massie.
    Mr. Massie. I am not a professor.
    Mr. Schweikert. Yes, but we--never mind.
    Mr. Massie. Very quickly, let me ask you this, Mr.----
    Mr. Perciasepe. Bob.
    Mr. Massie. Bob. Okay. Thank you. Do you anticipate having 
a larger budget at the EPA next year or a smaller budget?
    Mr. Perciasepe. The--for 2015?
    Mr. Massie. Yeah.
    Mr. Perciasepe. The President's budget that was submitted 
to Congress is smaller than 2014.
    Mr. Massie. Okay. What is the additional cost of 
implementing this new rule?
    Mr. Perciasepe. Well, it is a combination between EPA and--
--
    Mr. Massie. We--well, I ask this question----
    Mr. Perciasepe. --the Corps of Engineers.
    Mr. Massie. We met before in the Transportation 
Infrastructure Committee, so I asked the question then. I will 
ask you again. Hopefully we get the same number. What is the 
cost of implementing this rule?
    Mr. Perciasepe. If you let me shuffle a paper, I will give 
you the same answer. It is----
    Mr. Massie. I will give it to you. I don't want to put you 
on the spot. It was $100-$200 million. Does that sound about 
right?
    Mr. Perciasepe. That sounds in the ballpark.
    Mr. Massie. I have the transcript.
    Mr. Perciasepe. I can get it.
    Mr. Massie. Isn't it a little bit fiscally irresponsible to 
undertake a $100-$200 million project when you anticipate your 
budget will decrease?
    Mr. Perciasepe. When we do those cost estimates, we are 
doing those cost estimates on what the cost to the economy is, 
so that means like 160 to 280 million.
    Mr. Massie. Okay.
    Mr. Perciasepe. And those are permit processing expenses 
and mitigation expenses that might have to come into play if 
somebody wants to get a permit and they have to----
    Mr. Massie. So you----
    Mr. Perciasepe. They can do the activity but they have to 
do mitigation.
    Mr. Massie. You plan on passing those costs onto the people 
that are going to file for permits?
    Mr. Perciasepe. Well, those are the costs we estimated----
    Mr. Massie. Um-hum.
    Mr. Perciasepe. --of doing the permits and also doing the 
mitigation.
    Mr. Massie. I think it is fiscally irresponsible to 
undertake this new rule that will undeniably cost you more 
money to implement when you know in fact the President 
acknowledges your budget is going to go down.
    Let me ask you another question. Can you have science 
without measurements, without numbers, without units?
    Mr. Perciasepe. For most science you need that. Now, I am 
going to say that----
    Mr. Massie. That is--I think so, too.
    Mr. Perciasepe. --there is probably some that you don't, 
but----
    Mr. Massie. Well, I am looking at the rule here. I can't 
find any numbers. I can't find any unit measurements. Let me 
give you an example. The definition of a floodplain, ``the term 
floodplain means an area bordering inland or coastal waters 
that was formed by sediment deposition from such water under 
present climatic conditions and is inundated during periods of 
moderate to high water flows.'' Is ``moderate to high'' a 
scientific term that----
    Mr. Perciasepe. I think these are terms that are used 
routinely in the science of hydrology.
    Mr. Massie. Can you--you can--okay. Can you convert that to 
gallons per minute, moderate to high?
    Mr. Perciasepe. It depends on the size of the stream and 
the drainage area.
    Mr. Massie. Okay.
    Mr. Perciasepe. Or in the case of the Atlantic Ocean, it is 
pretty big.
    Mr. Massie. You know what, without facts, all you have is 
an opinion, and this leaves it open to opinion. So without 
units, you cannot have science without measurements.
    Let me ask you another question from the definition here. 
These are features that are exempt under this rule. One of them 
is an artificial lake or pond created by excavating and/or 
diking dry land. I own a farm and I have built a few ponds. The 
last place I would put a pond is where there is dry land, where 
there is no water. How can you dike dry land and create a pond 
for irrigation?
    Mr. Perciasepe. Well, you take an area of a stream that--I 
mean an area of the field or woodland where the slope is in 
this direction and you----
    Mr. Massie. Um-hum.
    Mr. Perciasepe. --put up a----
    Mr. Massie. So there is a flow of water----
    Mr. Perciasepe. --dike and when it rains, the water comes 
down and it----
    Mr. Massie. Right.
    Mr. Perciasepe. --settles behind the----
    Mr. Massie. So you get some water that is not coming--not 
just landing in the pond but from----
    Mr. Perciasepe. Yeah.
    Mr. Massie. --surrounding areas?
    Mr. Perciasepe. Yeah.
    Mr. Massie. So there is a flow across that land?
    Mr. Perciasepe. Yes.
    Mr. Massie. So if the goal here is to create an exemption 
for landowners that they can understand, why wouldn't you put a 
scientific unit of measure in there? Like what is a unit of 
measure for a pond or lake?
    Mr. Perciasepe. Gallons.
    Mr. Massie. It is gallons but that is a little hard to--
that is a good number. Acre-feet is another word----
    Mr. Perciasepe. Acre-feet is a bigger one.
    Mr. Massie. --is another one that is commonly used. Yeah. 
So why wouldn't you put a definition in there that is 
scientific? Because clearly there is flow of water going into 
this, so there has to be some flow. You could define it in 
gallons per minute or something like that, the pond in acre-
feet, because it is clearly not going to be on dry land if you 
are creating this or it wouldn't exist. You would have a dry 
pond, and I have built a few of those, too.
    Mr. Perciasepe. Well, the concept of dry land is that land 
is not----
    Mr. Massie. Explain that to me.
    Mr. Perciasepe. It is not currently a lake or a stream or a 
river. It is----
    Mr. Massie. I think it has to be under a roof really to be 
completely dry. There has to be some flow. What I am asking 
here is for some definition----
    Mr. Perciasepe. It is a term of art in hydrology.
    Mr. Massie. A term of art. I would like a term of science, 
like when you define a bank, how tall is the bank in feet?
    Mr. Perciasepe. There are criteria for a bank----
    Mr. Massie. How----
    Mr. Perciasepe. --and there is criteria for a high water 
mark.
    Mr. Massie. So on the--let's just--quickly, my time is 
almost expired--on a floodplain, what are the units to define 
the size and scope of a floodplain?
    Mr. Perciasepe. Normally, floodplains are defined by the 
frequency----
    Mr. Massie. That is how we define them----
    Mr. Perciasepe. The frequency of inundation.
    Mr. Massie. Correct. So why wouldn't you define a 
floodplain that way instead of leaving it so open-ended to say 
that it is moderate to high water flows?
    Mr. Perciasepe. Well----
    Mr. Massie. Would you agree that is not a scientific term, 
moderate to high? There is no units, there is no number.
    Mr. Perciasepe. We have asked for help in defining the size 
of the floodplain. It is a specific question we have asked in 
the proposal.
    Mr. Massie. Well, that is a science that is already 
established.
    Mr. Perciasepe. Yes.
    Mr. Massie. I suggest you go use some science. Thank you.
    Mr. Perciasepe. So it is 100, 500, you know, we have asked 
for advice on what size and how to do that.
    Mr. Massie. Well, it is very clear science. You could use 
some science in these definitions. Thank you.
    Mr. Schweikert. Thank you, Mr. Massie.
    Mr. Brooks.
    Mr. Brooks. Thank you, Mr. Chairman. I don't know, but 
having heard those questions, it sure seems to me that Mr. 
Massie has a doctorate. Maybe we ought to give him an honorary 
one right here and now.
    Mr. Perciasepe. Yes, it was professor-like.
    Mr. Brooks. Mr. Chairman, I have a letter from Jimmy 
Parnell of Alabama Farmers Federation dated July 8, 2014, that 
I would like entered into the record.
    Mr. Schweikert. Any objection? So ordered.
    [The information appears in Appendix II]
    Mr. Brooks. Thank you, Mr. Chairman.
    It is my understanding that this rule relies on the 
``significant nexus'' test to determine what ``other waters'' 
would be regulated. As all hydrological connections are 
certainly not significant, can you please explain how the 
Agency plans to identify what constitutes a significant 
connection? Does the Agency plan to establish some means of 
quantifying the significance of a hydrological connection? If 
so, can you provide a real-world example of how the 
determination would be made?
    Mr. Perciasepe. We have tried to use two key established 
approaches to define when it is significant because I think, as 
many have pointed out already and I think it is worth noting 
that the broader hydrologic cycle, almost anything can be 
defined as connected. And so--but significant is a very 
important component of how we are going to have to do the work 
here.
    So we have proposed that if it is a tributary that runs 
either all the time or seasonally, as Justice Scalia outlined, 
that it would have to be--it would have to have water in it 
enough that it had a defined bank, high water mark, and a bed. 
Now, there are criteria for those that are defined in the 
science of hydrology, so if it doesn't have those 
characteristics, then we are saying there is not enough time 
that water is flowing in it that it is significant, so it is 
not significant. So that means the puddle in my backyard, my 
roof drains, things like that don't have those characteristics 
so they are not significant, they are not covered. Wet field, 
same situation. On--and for standing water, obviously if it is 
a lake that is wet all the time or if there is a wetland that 
has the characteristic hydric soils and hydrophytic vegetation 
that is characteristic in science of what a wetland is, then 
that would be significant.
    Then there are other issues that have--that the Supreme 
Court has asked that be considered, things like adjacency, et 
cetera. So if you have some of these characteristics but you 
are not adjacent, you know, are you--that--and we have proposed 
some approaches to deal with that issue as well.
    Mr. Brooks. All right. Thank you.
    Let me move to my second question. Dr. David Sunding, a 
Professor at the University of California Berkeley, hardly a 
conservative bastion, has published a report on the Agency's 
economic analysis of this rule and I am going to quote from his 
remarks. ``EPA is proposing an expansion of the definition of 
the term Waters of the United States to include categories of 
waters that were previously never regulated as Waters of the 
United States such as all waters in floodplains, riparian 
areas, and certain ditches. The inclusion of these waters will 
broaden the scope of the Clean Water Act and will increase the 
cost associated with each program.
    Unfortunately, the EPA analysis relies on a flawed 
methodology for estimating the extent of newly jurisdictional 
waters that systematically underestimates the impact of the 
definitional changes. This is compounded by the exclusion of 
several important types of cost and the use of a flawed 
benefits transfer methodology which EPA uses to estimate the 
benefits of expanding jurisdiction. The errors, omissions, and 
lack of transparency in EPA's study are so severe as to render 
it virtually meaningless.'' Now, those are Dr. Sunding's words, 
not mine.
    How can Congress or the public adequately evaluate the 
scientific and economic impacts of EPA's proposal if the 
economic analysis is as problematic as Dr. Sunding indicates?
    Mr. Perciasepe. Well, I--we have that report. I haven't 
personally read it yet but it is certainly going into the 
docket. We will formally put it in our docket for this rule and 
we will analyze it and see what we may need to do to our 
economic analysis. But I can tell you right off--and we had a 
discussion about this earlier and I was probably less 
successful than I would desire to explain this--but all 
floodplains are not jurisdictional waters. Just the fact that 
it is inundated, let's say, annually by a spring flood or every 
ten years by a ten-year flood does not make it jurisdictional. 
It is just an indicator that the water that is there all the 
time or under those other characteristics I just mentioned to 
you then would be jurisdictional because they are adjacent to 
the other stream. We use it as a way to determine in the 
science of hydrology whether it is adjacent.
    So if you make an assumption that the entire landmass of a 
100-year floodplain would somehow require a permit and 
everything, then you get into this situation that I think that 
analysis did where is that we are underestimating. But I am--I 
want to be more clear on that and we are going to look into 
that in more detail.
    Mr. Brooks. Thank you, Mr. Chairman.
    Mr. Schweikert. Thank you, Mr. Brooks.
    Mrs. Lummis.
    Mrs. Lummis. Thank you, Mr. Chairman. And thank you, Mr. 
Perciasepe, for being here.
    This is the rule that terrifies people in my State more 
than any other rule that the Federal Government is proposing 
right now, so my questions are going to be very specific.
    Mr. Perciasepe. Okay.
    Mrs. Lummis. But I want you to know how terrified people 
are.
    Now, I am from the West. I am from Wyoming where water is 
scarce, precious, carefully administered and the resource about 
which we worry the most and fret the most. And you just have 
people in the West completely terrified about this. I just want 
you to know that. Part of the terrifying effects of this is 
that the Supreme Court rejected the Clean Water Act 
jurisdiction over isolated ponds because they lacked a 
significant nexus to navigable waters, and we don't understand 
why the panel of scientists is not focusing on what significant 
nexus means. Instead, this rule is focusing on connection and 
connectivity. The Courts have repeatedly said that a connection 
is not enough and yet the EPA is basing this rule on a report 
that evaluates connections.
    So I would argue that that is among the umbrella basis for 
our huge concerns. The Western Governors are concerned, the 
Western Attorneys General are concerned, the Western state 
engineers are concerned, the water users are concerned, the 
local water administrators are concerned. It is an enormous 
issue.
    Laying that groundwork, here are my specific questions. We 
don't understand why the EPA allowed only an additional 20-day 
comment period on the interpretive rule on the ag exemptions. 
There are some exemptions, 56 practices that are exempt as I 
understand it, but there are 100 other practices that we 
believe should be added to this list. Here are my questions. 
Please provide a detailed analysis of how the National 
Conservation Resource Service conservation practice standard 
for irrigation canal or lateral, that is Code 320, aligns with 
the treatment of these facilities in the proposed rule for the 
hearing record.
    Mr. Perciasepe. I can't do that off the top of my head but 
I am happy to do it for the record.
    Mrs. Lummis. Fabulous. And the other questions that I have 
are going to be for the record as well.
    Mr. Perciasepe. Okay.
    Mrs. Lummis. Please provide us how the NRCS conservation 
practice standard for an irrigation field ditch. Now, this 
ditch, this is Code 388, aligns with the treatment of ditches 
in the proposed Waters of the United States Rule.
    Please discuss how the NRCS standards for a pumping plant, 
this is Code 533; a stream crossing, that is Code 578; and a 
structure for water control, this is Code 587, align with the 
regulatory consequences of the Waters of the United States 
Proposed Rule. We need detailed written analyses of these for 
the hearing record.
    We also need an analysis in the rulemaking docket so people 
have an adequate opportunity to consider and comment on these 
analyses. These are the kinds of details that have heretofore 
been left out, and when you couple the fact that this 
scientific committee that was assembled has I think 2 people 
out of 50 that are connected to tribes, States, and local water 
regulators provides no comfort for us. And those two that came 
from state agencies both came from the California EPA. There is 
almost no state agency that is more disparate from my State, 
our tribes, our counties, our water regulators' frame of 
reference than the California EPA. The only other agency that 
is more disparate is the U.S. EPA. So in other words we really 
feel from the West that this scientific committee has no 
expertise in our water jurisdiction, concerns, quantity, 
quality, and as I said at the beginning of my remarks, there is 
just no rule that terrifies us more.
    Thank you, Mr. Chairman. I yield back.
    Mr. Schweikert. Thank you, Mrs. Lummis. And hopefully staff 
got that list and you will be able to respond----
    Mr. Perciasepe. Well, it looks like we will be able to get 
it somehow if--I tried to write them all down. Thank you.
    Mr. Schweikert. All right. Thank you, Mrs. Lummis.
    And now it is finally my turn and I have two letters I wish 
to put into the record. Without objection, seeing we are the 
last two here--if there is an objection, I am going to be 
really worried--from my Irrigation & Electrical Districts 
Association of Arizona and National Stone, Sand, and Gravel 
Association.
    No objection, so ordered.
    [The information appears in Appendix II]
    Mr. Schweikert. It has been fascinating to listen to this 
because--and I should disclose about six weeks ago right down 
the hall we did one of those things we tried to do with big 
pieces of legislation where you invite in a handful of lawyers, 
and this is an interesting group. A couple of lawyers--I think 
one had actually even been staff over at the EPA so they 
weren't necessarily the ideological set and we did that sort of 
game theory. Let's sort of walk through the sections of this 
rule and see what it models, see what this means, how absurd 
could you take it, where would a court take it?
    And I think from those sorts of discussions that is where 
you are picking up the stress----
    Mr. Perciasepe. Yeah.
    Mr. Schweikert. --from many of us up here. It may not be 
what you intended but it is what the words say and particularly 
in a litigious world that we are in right now where if the 
words have any movement, someone is going to litigate on it.
    So could I beg of you--and I know this is sort of a 
lightning round--let's do floodplains for a moment. In the 
discussion here floodplains kept being sort of adjacent to an 
active waterway. For those of us from the desert Southwest, if 
you were ever to look at Maricopa County, third most populous 
or fourth most populous county in the United States, but the 
top part of my county has huge, huge areas that are designated 
as floodplains even though it may be the every-other-year 
monsoon season. How does that fall into this? I mean there are 
areas up there were you have to get a 404 permit to do almost 
anything.
    Mr. Perciasepe. Well, I am going to--so we have asked that 
we get some comment on the concept of using a floodplain, which 
is obviously associated with a water as a mechanism--a science-
based mechanism to determine if there are waters in that 
floodplain, not at the moment it is flooding but----
    Mr. Schweikert. You know, we are probably not used to the 
word floodplain----
    Mr. Perciasepe. Yeah.
    Mr. Schweikert. --for those of us in the desert Southwest 
where I may get 14 inches a year and it comes on a Tuesday.
    Mr. Perciasepe. Yeah. Right. And so that floodwater, you 
know, those lands that are flooded on that particular--you 
know, I have been in Arizona during the monsoon season and--
along the Salt River or Rio Salado, the--you mentioned--the 
Chairman mentioned I worked at the Audubon society. I worked on 
that nature center, the Nina Mason Pulliam Nature Center down 
on think it is Center Street.
    Mr. Schweikert. Yeah.
    Mr. Perciasepe. So we are using that to say, look, if this 
area floods, then if there is a stream in that area or a 
wetland in that area, then the chances are it is probably--has 
some connection to that----
    Mr. Schweikert. So----
    Mr. Perciasepe. --to the main river. But it doesn't mean 
that the whole floodplain is somehow--becomes like a dry----
    Mr. Schweikert. You know, let's grind through this sort of 
in a mechanical----
    Mr. Perciasepe. Yeah. Okay.
    Mr. Schweikert. --and then let's do sort of a case 
scenario. So I am elated you have some experience with the 
desert Southwest. So those floodplains, water does run through 
them and they run down and eventually hit another wash that 
hits another wash that eventually ends up in the Verde River 
and the Verde River eventually ends up in the Salt River and 
then your Rio Salado project. So in that case you would see a 
nexus.
    Mr. Perciasepe. On the--there would be a nexus on the 
riverbed, you know, in terms of jurisdiction, and if there was 
another river or wetland feature that met those other 
characteristics, had a bed, bank, and a high watermark or 
hydric soils and vegetation, then it would be looked at as 
being adjacent to that water. But the entire floodplain--and 
this is----
    Mr. Schweikert. No, no, no. That wasn't my question.
    Mr. Perciasepe. Okay. Okay.
    Mr. Schweikert. My question was that wash--let's back up a 
little because you have the experience. Salt River bed----
    Mr. Perciasepe. Yeah.
    Mr. Schweikert. Navigable? Should it fall under the Waters 
of the United States?
    Mr. Perciasepe. No. It is probably not navigable except for 
a few times a year.
    Mr. Schweikert. But would it fall under your jurisdiction?
    Mr. Perciasepe. But it would fall under a tributary that is 
tributary to a traditional navigable----
    Mr. Schweikert. So it would?
    Mr. Perciasepe. --and could--the quality of the Salt River 
could affect the quality of the navigable water.
    Mr. Schweikert. Okay.
    Mr. Perciasepe. And I think that is how the Supreme Court 
tried to use the concept of if it affects downstream the----
    Mr. Schweikert. Okay. Well, in my remaining--and the beauty 
of playing Chairman is I am----
    Mr. Perciasepe. Yes. Yeah.
    Mr. Schweikert. --giving myself more time. So let's do a 
little game theory. I have an occasional creek behind my home, 
which runs at certain times of the year, and I go out and I 
take shovels and shovels and shovels of dirt and throw it in 
there. Did I violate the rule? And that creek runs down to a 
river.
    Mr. Perciasepe. And you are saying that that creek has 
water in it every year or is it just rain? Is it an erosional 
feature----
    Mr. Schweikert. Let's say it is running at that time and I 
am throwing dirt into it, pollutant as defined and so in that 
case I would have needed a 404 permit to be throwing that dirt 
in?
    Mr. Perciasepe. You know, it is just--really--I mean there 
are so many reasons why it might not be. I can't really focus 
on----
    Mr. Schweikert. And this actually came from our legal----
    Mr. Perciasepe. Yeah.
    Mr. Schweikert. --workgroup last month. Okay. So how about 
if it is an occasional where this time I am throwing dirt into 
it and it is dry but I am changing sort of the structure of it. 
But when water does come down, it is going to pick up the 
additional sediment and run it down to the Verde River in my 
area. Still probably would fall under----
    Mr. Perciasepe. Yeah. Recognizing I have a modest amount of 
familiarity----
    Mr. Schweikert. Um-hum.
    Mr. Perciasepe. --with what that place probably looks like 
even if you didn't put the dirt in there, I don't know that it 
would be noticeable----
    Mr. Schweikert. Okay.
    Mr. Perciasepe. --because you have got a dry situation 
where the sand and the----
    Mr. Schweikert. Um-hum.
    Mr. Perciasepe. --smaller grains and even the stones 
depending on how torrential the rain might be are going to move 
downstream.
    Mr. Schweikert. But you can see where that becomes a really 
interesting standard. So now the standard is noticeable.
    Mr. Perciasepe. Well, I am----
    Mr. Schweikert. It is not----
    Mr. Perciasepe. I am sorry. I am sorry. I am just 
speaking----
    Mr. Schweikert. No, no, no----
    Mr. Perciasepe. You are trying to engage me in a 
conversation----
    Mr. Schweikert. No--yeah. No, no, I am not trying to----
    Mr. Perciasepe. Trying to be a lawyer here.
    Mr. Schweikert. I am trying to get even my own head around 
it----
    Mr. Perciasepe. Yeah.
    Mr. Schweikert. --because I have had groups of very smart 
lawyers and some of them not ideological at all--they are just 
good lawyers--who are way over here saying, oh, they don't mean 
that and over here saying I am going to sue and I am going to 
litigate and I am going to win on this because----
    Mr. Perciasepe. Right.
    Mr. Schweikert. --here is how it is worded. So that is 
where the fear comes because----
    Mr. Perciasepe. Yeah.
    Mr. Schweikert. --for many of us who live out in the desert 
Southwest, we ride our horses through washes, we plant palo 
verde trees and then we fertilize them alongside those washes. 
Have I just created a pollutant because that pollutant runs 
down and eventually hits a dry Salt River bed. Well, the dry 
Salt River bed hasn't run water down to the Colorado in, what, 
30-some years. Maricopa County is one of the places on Earth 
where we recycle every drop of our water. We do some great 
stuff.
    Mr. Perciasepe. Yeah. I agree.
    Mr. Schweikert. Also, last two things and I know I am way 
over my time, I know there was some frustration shared from you 
on people you thought were pushing things, maybe exaggerating, 
conflating, but we even did it in the conversation here of 
folks talking about drinking water. Well, that is a different 
statute so we have to be careful on--for all of us conflating.
    Last bit on ditches, okay, let's say I have a ditch; we 
will call it the Central Arizona Project, the world's longest 
aqueduct, and it puts water into a large lake, Lake Pleasant, 
and then picks that water back out of that lake and continues 
to move it through my state. The fact it was parked in--because 
the lake is under the jurisdiction currently and in the future 
rule, right? So did the transfer from that ditch into a holding 
lake and then transferred back into a ditch all of a sudden 
turned the water movement there under this rule.
    Mr. Perciasepe. You know, I am not 100 percent familiar 
with that situation. I have some familiarity, but the Central 
Arizona Project would not be----
    Mr. Schweikert. But----
    Mr. Perciasepe. --jurisdictional in any way, shape, or 
form.
    Mr. Schweikert. But the ditch itself--I know you have said 
a couple times a ditch is not, but this is a different 
mechanic. Remember, we put it into a regulated lake as a 
holding.
    Mr. Perciasepe. Well, you know, irrigation ditches are 
not----
    Mr. Schweikert. But this is--but you can start to see these 
are where we are----
    Mr. Perciasepe. Is this lake--I apologize for not having--
--
    Mr. Schweikert. Lake Pleasant.
    Mr. Perciasepe. Is it used to recharge groundwater?
    Mr. Schweikert. No. No, no. That is--this is actually 
mostly for water----
    Mr. Perciasepe. Supply?
    Mr. Schweikert. --supplies, irrigation supplies, municipal 
supplies----
    Mr. Perciasepe. I----
    Mr. Schweikert. --but it is also a large recreational lake.
    Mr. Perciasepe. Yeah, I would--I----
    Mr. Schweikert. So a large--but you could start to see 
where we have some design issues because also in desert 
Southwest type of agriculture we use a lot of ditches where we 
will gather water, run it around, and then put it back.
    Mr. Perciasepe. The danger you have with the guy at the 
top--you know, in either top of the food chain, you know, 
trying answered these technical questions on particular matter 
is difficult, but our approach we do not want irrigation 
systems to be jurisdictional. We certainly don't want ditches 
that if you took the water away they just go back to being what 
the land that it was. I mean, that----
    Mr. Schweikert. There will be some other discussions and if 
we have time, we will send you a couple notes saying there may 
be a need to change some of that ditch language because, 
particularly for those of us in the desert Southwest, the way 
we use them, it is a constant transferring back and forth from 
different types of bodies and different types of uses and, so, 
you can see where some of the concerns are.
    And I think with that, because it is not like I haven't 
gone double my allotted time, so I appreciate everyone's 
patience. I need to thank you as our witness.
    To the Members of the Committee, if they have additional 
questions for you--and we will ask you to respond to those in 
writing. The record will remain open for two additional weeks, 
comments and written questions from any Members.
    The witness is excused. Thank you for----
    Mr. Perciasepe. Thank you, Mr. Chairman.
    Mr. Schweikert. --joining us. Anything else?
    All right. And then we are adjourned.
    Mr. Perciasepe. Thank you.
    [Whereupon, at 12:15 p.m., the Committee was adjourned.]
                               Appendix I

                              ----------                              


                   Answers to Post-Hearing Questions



                   Answers to Post-Hearing Questions
Responses by The Honorable Robert W. Perciasepe

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                              Appendix II

                              ----------                              


                   Additional Material for the Record



  Written statement submitted by Ranking Member Eddie Bernice Johnson

    Thank you, Chairman Smith for holding today's hearing to examine 
the rule proposed by the Environmental Protection Agency and the Army 
Corps of Engineers to clarify the definition of the ``waters of the 
United States'' in the Clean Water Act. I'd also like to thank Mr. 
Perciasepe for his participation this morning. I'm looking forward to 
your testimony and our discussion today. There has been a significant 
amount of confusion about what waters will be subject to the 
requirements of the Clean Water Act in light of the proposed rule, and 
today's hearing provides us with the opportunity to clear up any 
misconceptions.
    As my colleagues are aware, I am a strong supporter of EPA's 
mission to protect public health and the environment. I am also a 
believer that a strong economy and a healthy environment go hand in 
hand. It is clear that clean water plays an important role, not just in 
the day to day lives of every American, but in nearly every sector of 
our economy. The availability and quality of water is critical to 
manufacturing, agriculture, recreation and tourism, energy production, 
and commercial fisheries.
    In 1972 Congress recognized the value of the Nation's water supply 
to our economy and quality of life and enacted the Clean Water Act to 
protect this vital and finite resource. However, rulings by the Supreme 
Court in 2001 and 2006 have created ambiguity regarding what waters are 
subject to the Act's jurisdiction.
    For nearly a decade, stakeholders ranging from the American 
Association of State Highway and Transportation Officials to the 
Environmental Defense Fund to the American Petroleum Institute have 
been calling on EPA and the Army Corps to provide clarity about what is 
and what is not a ``water of the United States.'' And while there may 
be differences in opinion about the proposed rule, I applaud the 
agencies for addressing this need and working to provide ``greater 
clarity, certainty, and predictability'' to the regulated community and 
state and local governments that share the task of implementing and 
enforcing the Clean Water Act.
    As we will likely hear today, streams, lakes, and wetlands offer a 
variety of ecological benefits and services. For example, wetlands can 
store excess water after a heavy rainfall, reducing the possibility of 
flooding; they can trap sediments and filter out pollutants, improving 
water quality; and they can serve as a breeding ground for fish and 
other aquatic life, increasing biological diversity.
    As a representative from the great state of Texas, I have seen 
first-hand the impact water shortages can have on public health and the 
economy. In 2011 Texas experienced one of the worst droughts on record 
with nearly 1,000 public water systems implementing restrictions on the 
use of water. In fact, 23 of those systems believed they would run 
completely out of water within 180 days. Additionally, about 16 percent 
of the Texas' power generation relies on cooling water from sources 
that are at historically low levels. Competition for water in the state 
is already high, but climate change is likely to further increase 
competition for this critical resource as shortages are expected to 
rise and the quality of our water resources is predicted to decline.
    We need a reliable supply of clean water in order for our economy 
to remain strong. The proposed rule we are discussing today will go a 
long way in protecting this critical resource, and this hearing can be 
a constructive mechanism for all of us to learn more about the proposed 
rule.
    Thank you, Mr. Chairman and I yield back the balance of my time.
               Letters submitted by Chairman Lamar Smith
               
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            Letters submitted by Representative Kevin Cramer
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           Letters submitted by Representative Paul C. Broun
           
[GRAPHIC] [TIFF OMITTED] 

            Letter submitted by Representative Ralph M. Hall
[GRAPHIC] [TIFF OMITTED] T9413.053

[GRAPHIC] [TIFF OMITTED] T9413.054

           Letter submitted by Representative Randy Hultgren
[GRAPHIC] [TIFF OMITTED] T9413.055

[GRAPHIC] [TIFF OMITTED] T9413.056

           Letters submitted by Representative Larry Bucshon
           
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              Letter submitted by Representative Mo Brooks
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          Letters submitted by Representative David Schweikert
          
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