[Senate Hearing 113-764]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-764

                    SOLVING THE PROBLEM OF POLLUTED
                     TRANSPORTATION INFRASTRUCTURE
                           STORMWATER RUNOFF

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON WATER AND WILDLIFE

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 13, 2014

                               __________

  Printed for the use of the Committee on Environment and Public Works


       Available via the World Wide Web: http://www.gpo.gov/fdsys

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              COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED THIRTEENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JAMES M. INHOFE, Oklahoma
BERNARD SANDERS, Vermont             JOHN BARRASSO, Wyoming
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
TOM UDALL, New Mexico                MIKE CRAPO, Idaho
JEFF MERKLEY, Oregon                 ROGER WICKER, Mississippi
KIRSTEN GILLIBRAND, New York         JOHN BOOZMAN, Arkansas
CORY A. BOOKER, New Jersey           DEB FISCHER, Nebraska
EDWARD J. MARKEY, Massachusetts

                Bettina Poirier, Majority Staff Director
                  Zak Baig, Republican Staff Director
                              
                              ----------                              

                   Subcommittee on Water and Wildlife

                 BENJAMIN L. CARDIN, Maryland, Chairman
THOMAS R. CARPER, Delaware           JOHN BOOZMAN, Arkansas
SHELDON WHITEHOUSE, Rhode Island     JAMES M. INHOFE, Oklahoma
JEFF MERKLEY, Oregon                 JOHN BARRASSO, Wyoming
KIRSTEN GILLIBRAND, New York         JEFF SESSIONS, Alabama
CORY A. BOOKER                       DEB FISCHER, Nebraska
BARBARA BOXER, California (ex        DAVID VITTER, Louisiana (ex 
    officio)                             officio)
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page

                              MAY 13, 2014
                           OPENING STATEMENTS

Cardin, Hon. Benjamin, U.S. Senator from the State of Maryland...     1
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     3
Boozman, Hon. John, U.S. Senator from the State of Arkansas, 
  prepared statement.............................................   218

                               WITNESSES

Mather, Peter, Highway Division Administrator, Oregon Department 
  of Transportation..............................................     6
    Prepared statement...........................................     8
    Responses to additional questions from Senator Cardin........    13
Gibson, James P. Jr., Director of Integrated Watershed 
  Management, Sanitation District No. 1 of Northern Kentucky.....    20
    Prepared statement...........................................    22
    Responses to additional questions from Senator Cardin........    33
Coble, Kim, Vice President For Environmental Protection and 
  Restoration, Chesapeake Bay Foundation.........................    44
    Prepared statement...........................................    46
    Responses to additional questions from Senator Cardin........    52
Medina, Daniel E., PhD, PE, D.WRE. CFM, Technical Director-Water, 
  Atkins.........................................................    56
    Prepared statement...........................................    58
    Responses to additional questions from Senator Cardin........    63
Cuccinelli, Hon. Ken, Cuccinelli & Associates....................    68
    Prepared statement...........................................    70
    Response to an additional question from Senator Cardin.......    72
    Response to an additional question from Senator Vitter.......    73
Cohen, Greg, President & CEO, American Highway User Alliance.....    74
    Prepared statement...........................................    76
Monette, Andre, Attorney, Best Best & Krieger....................    81
    Prepared statement...........................................    83
    Responses to additional questions from Senator Vitter........   200

 
     SOLVING THE PROBLEM OF POLLUTED TRANSPORTATION INFRASTRUCTURE 
                           STORMWATER RUNOFF

                              ----------                              


                         TUESDAY, MAY 13, 2014

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:59 p.m. in room 
406, Dirksen Senate Office Building, Hon. Benjamin L. Cardin 
(chairman of the committee) presiding.
    Present: Senators Cardin, Vitter, Merkley, and Fischer.

         OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 
            U. S. SENATOR FROM THE STATE OF MARYLAND

    Senator Cardin. Let me welcome you all to the Subcommittee 
of Water and Wildlife of the Environment and Public Works 
Committee. I particularly want to thank Senator Boxer and 
Senator Vitter and Senator Boozman for their cooperation in 
allowing this subcommittee hearing to go forward.
    As I mentioned to some of you before we started the 
hearing, this has been a very productive and busy time for the 
Environment and Public Works Committee. We have completed the 
work on the Water Resources Development Act; it has been signed 
by the conferees. I was pleased to be one of the conferees. 
That bill will be on the floor of the House and Senate next 
week, and we expect it to be sent to the President by the end 
of next week. So that is really good news.
    Earlier this week, Senator Boxer and Senator Vitter, along 
with Senator Arrases and Senator Carper, released the 
reauthorization of the surface transportation MAP-21 bill, and 
that is a 6-year reauthorization with inflationary increases, 
which is really good news that we have at least a framework to 
move forward on the reauthorization of the Surface 
Transportation Act.
    So it has been a very busy time for the EPW community and I 
thank all for allowing us to move forward on stormwater runoff, 
an issue that is very important to water quality. And I 
appreciate the opportunity of having the panel that we have 
here today.
    Senator Boozman, as some of you may be aware, is recovering 
from an illness. I talked to him today and I know that he will 
be returning to full strength shortly, and we look forward to 
his return here to the U.S. Senate.
    Storm runoff is a major part of water quality issues. I 
have looked at the great water bodies in our Country and what 
we can do to improve water quality. I am particularly 
interested in the Chesapeake Bay, as being one of the senators 
that have the opportunity of representing the watershed of the 
Chesapeake Bay in Maryland. We have had a successful program 
because all stakeholders have been involved with shared 
responsibility and that we based our strategies on best science 
and cost-effective ways to accomplish our goals, and that, to 
me, is the standard we have to follow.
    Water quality is affected through our agricultural 
community and what they do, and in the farm bill we were 
pleased to add the regional conservation partnership programs 
that will allow a new opportunity to help farmers deal with 
water quality issues coming from their operations.
    Wastewater is another major source of problems for water 
quality. Of course, as you know, we have the partnership with 
local governments with the State Revolving Fund.
    Storm runoff, the subject of today's hearing, is a major 
source of concern as it relates to water quality. The sheer 
volume is a concern; first, with the impervious surfaces in 
this Country. As I think all of us understand, when you have a 
storm, if the water seeps into the soil, a lot of the 
pollutants will be filtered before it reaches our rivers and 
streams and goes into our great water bodies. If it does not, 
if it runs off of impervious surfaces, it tends to gush, you 
have scour vents and more of the pollutants will end up 
directly into our streams and into our rivers.
    Some of these numbers I think are somewhat surprising. In 
rural American, 1 or 2 percent of the acreage is impervious. 
About 80 or 90 percent of the impervious areas are due to our 
roads and highways. In residential areas, the amount of 
impervious surface is between 10 to 50 percent, and about 50 
percent of that comes from our roads. In dense urban areas it 
can be as high as 90 percent of impervious surface; 60 to 70 
percent comes from roads.
    So roads are a major part of our issue in dealing with how 
to deal with storm runoff. In the Chesapeake Bay watershed, 17 
percent of our acreage is now impervious, and that number is 
increasing literally every day.
    One inch of rain on a one-mile four-lane highway produces a 
quarter of a million gallons of polluted stormwater. Our 
national highway system represents 180,000 miles. You do the 
arithmetic. And, of course, just recently in Florida we had 
almost 20 inches of rain in Florida.
    So these are areas that need to be of concern.
    The harm to our water quality, I could talk about all the 
oil, the grease, the antifreeze, the tons of garbage, the salt, 
the deicing agents, the heavy metals, the nitrogen, the 
chemicals, etcetera, but I think the best visual for this to me 
is think about a snowstorm and how beautiful that snowstorm is 
when the snow is just coming down and falls on our yards and 
falls on our roads. It is beautiful. By the next day, as you 
start to look at the road edges and see all the black guck that 
is on the sides of the road, that is the pollutants. That is 
what ends up in our streams and rivers, and it is not healthy. 
It is not healthy for human life and certainly not healthy for 
aquatic life.
    The sheer volume, the scour events, last week I held a 
field hearing in Cooing with the Cooing Dam and we talked about 
scour events and the volume of water. When you get the big 
scour events, the impact on our water quality is even more 
multiplied and it is affecting water temperature; it brings 
about cooler water at times and can affect aquatic life. So the 
effect is on aquatic life, on photosynthesis, on respiration, 
growth, reproduction, etcetera. All are affected by the fact 
that now too much of the stormwater to enter our streams and 
rivers without going through a filtration that can make it less 
damaging to our environment.
    The cost also here is a huge issue. Two weeks ago, in 
Baltimore, we had eight inches of rain. As a result of that, we 
lost East 26th Street. This was a very dangerous situation, 
where a whole road collapsed into a railroad bed. Clearly, the 
failure to manage stormwater was a contributing factor to the 
loss of that road. We are now trying to figure out what we are 
going to do for the homeowners who literally cannot return to 
their homes as a result. Expensive. Expensive to do the repairs 
after the damage is done.
    The unusual, unfortunately, is becoming the usual in our 
weather conditions. In Mobile, Alabama, Highway 131, we had 
another extreme event and we have looked at the cost benefits. 
It would have been a lot cheaper to put into the design ways to 
avoid the effects of stormwater on erosion and costs than to 
have to pay for the cleanup after the damage is done.
    Another study was done in Cincinnati with similar results.
    So I look at opportunities of where we can make progress, 
and I am glad for the panel here today and I really look 
forward to all of your testimonies. I am particularly pleased 
that we have someone here from Oregon who has been one of the 
leaders in dealing with the issues of stormwater management. We 
look forward to all of your testimonies. Our clean water 
strategy is obviously one area, and I look at the 
reauthorization of the Surface Transportation Act as another 
way, another opportunity in order to deal with storm runoff.
    With that, I said very nice things about Senator Vitter 
before he got here. I would be glad to repeat that for the 
record, but I do congratulate him on the successful completion 
of the WRDA Conference and on bringing forward the framework 
for the reauthorization of the Surface Transportation Act. It 
has been a real pleasure to work with Senator Vitter, and I am 
glad to have you here pinch-hitting for Senator Boozman. But he 
is never pinch-hitting, he is always here for himself.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Mr. Chairman, very much. On my 
rush over here, I was mumbling very nice things about you, as 
well, in the hall, and I appreciate your partnership, including 
on the recently completed WRDA Conference. And thank you for 
calling today's hearing. I know we all want to take a moment 
and express the committee's support and prayers for Senator 
Boozman as he recovers from surgery.
    You know, it is no secret that the current Administration 
doesn't see Congress as a partner or a co-equal branch, but 
really just an obstacle to its hostile regulatory agenda, and 
that President Obama and his EPA are willing to ignore multiple 
agency guidelines, federally mandated transparency laws in 
order to advance that proactive agenda by administrative fiat.
    Unfortunately, the Administration's policy of legislation 
by regulation is pervasive and it has reached the subject of 
today's hearing, stormwater runoff.
    Now, there is no question that under the Clean Water Act 
Congress provided EPA with some authority to address and 
mitigate the discharge of pollutants into navigable waters. 
However, the EPA has been testing and surpassing, in some 
cases, the limits of this authority in an ongoing effort to 
regulate water bodies that were clearly left to the States and 
private landowners to manage. Some of the more egregious 
examples have been highlighted by EPW Republicans.
    These cases of EPA's unlawful effort to regulate the rain 
creates absurd consequences for local and State officials in 
some cases throughout the Country. In one particular case, for 
instance, the Virginia Department of Transportation determined 
that EPA water flow regulations would cost hundreds of millions 
of dollars in unfunded Federal mandates, provide little to no 
environmental benefit, and force local authorities to condemn a 
vast swath of private property in order to construct required 
stormwater infrastructure.
    The Department challenged this in court and the independent 
court tossed out EPA's regulation based on what I would hope is 
a fundamental common sense notion that flow of water on its own 
is not a pollutant under the Clean Water Act.
    Of course, policymakers should example the problems and 
potential solutions to water pollution associated with 
transportation infrastructure, and of course we need to 
recognize dangers like washouts, which were the subject of many 
of those photographs. But that isn't in the middle of the Clean 
Water Act and it is not about pollution, fundamentally.
    EPA's proposed Waters of the United States Rule confirms 
that the Agency has no intention of abiding by the limits 
Congress established in the Clean Water Act.
    As the written testimony for today's hearing indicates, the 
Administration's quest for unfettered regulatory authority will 
in fact impede environmental stewardship and safety efforts by 
many transportation officials throughout the Country, and this 
calls into question either side of the aisle supporting EPA's 
proposed rule.
    I want to make it very clear that it is the clear intention 
of EPW Republicans to prevent EPA from redefining Federal 
jurisdiction and to keep EPA bureaucrats out of the backyards 
of American families and off the private property of farmers, 
ranchers, and small businesses.
    I look forward to hearing from our distinguished panel of 
experts this afternoon on this important issue. Thank you.
    [The prepared statement of Senator Vitter follows:]

             Statement of Hon. David Vitter, U.S. Senator 
                      from the State of Louisiana

    Mr. Chairman, thank you for calling today's hearing. Thank 
you as well to our distinguished witnesses for providing 
testimony this afternoon. I would also like to take a moment to 
express the Committee's support and prayers for Senator Boozman 
as he recovers from surgery back home in Arkansas.
    It is no secret that the current Administration sees 
Congress as an obstacle to its hostile regulatory agenda, and 
that President Obama and his Environmental Protection Agency 
are willing to ignore multiple agency guidelines and federally 
mandated transparency laws in order to appease the 
environmental left. It was only last week that White House 
counselor John Podesta indicated that there is a ``zero 
percent'' chance that President Obama will refrain from 
imposing misguided climate regulations, as soon as this year--
even if that means further undermining our energy security and 
economic recovery, and even if that means higher energy prices 
and more unemployment for the American people.
    Unfortunately, the Administration's policy of ``legislation 
by regulation'' is pervasive, and it has reached the subject of 
today's hearing: stormwater runoff. There is no question that, 
under the Clean Water Act, Congress provided EPA with the 
authority to address and mitigate the discharge of pollutants 
into navigable waters. However, the EPA has been testing the 
limits of this authority recently in an ongoing effort to 
regulate water bodies that were clearly left to the states and 
private landowners to manage. Some of the more egregious 
examples have been highlighted by EPW Republicans.
    EPA's unlawful effort to regulate the rain creates absurd 
consequences for local and State officials throughout the 
country. In one particular case, the Virginia Department of 
Transportation determined that EPA water flow regulations would 
cost hundreds of millions of dollars in unfunded Federal 
mandates, provide little environmental benefit, and force local 
authorities to condemn a vast swath of private property in 
order to construct required stormwater infrastructure. 
Accordingly, the Department challenged EPA in court, which 
tossed out EPA's regulations based on the common sense notion 
that the flow of water is not a pollutant under the Clean Water 
Act.
    Of course, policymakers should examine the problems and 
potential solutions to water pollution associated with 
transportation infrastructure. Unfortunately, the EPA's and 
this Administration's refusal to recognize limits to Federal 
authority under current law precludes a sober discussion of 
these issues.
    EPA's proposed ``waters of the United States'' rule 
confirms that the agency has no intention of abiding by the 
limits Congress established in the Clean Water Act. As the 
written testimony for today's hearing indicates, the 
Administration's quest for unfettered regulatory authority will 
in fact impede environmental stewardship and safety efforts by 
transportation and other officials throughout the country. This 
calls into question either side of the aisle supporting EPA's 
proposed rule.
    I'd like to make very clear that it is the intention of EPW 
Republicans to prevent EPA from redefining Federal 
jurisdiction, and to keep EPA bureaucrats out of the back yards 
of American families and off the property of our farmers, 
ranchers and small businesses. I look forward to hearing from 
our distinguished panel of experts this afternoon on these 
issues, and I thank Senator Cardin for holding this important 
hearing.

    Senator Cardin. I thank you very much, Senator Vitter.
    I know that Senator Merkley was planning on trying to be 
here in order to introduce our first panelist, Mr. Paul Mather, 
the Highway Division Administrator, Oregon Department of 
Transportation. If Senator Merkley arrives, we will interrupt 
so that he will have an opportunity to say, I am sure, very 
nice things about you and the work that you are doing in the 
State of Oregon.
    We also have Mr. James Gibson, who is the Director of the 
Integrated Watershed Management, Sanitation District No. 1 from 
Northern Kentucky;
    Kim Coble, who is the Vice President for Environmental 
Protection and Restoration, Chesapeake Bay Foundation, who I 
know personally and thank her very much for her work that she 
does on the Chesapeake Bay Foundation; an incredible success 
story, but still a lot more that needs to be done;
    Mr. Daniel Medina, the Technical Director--Water, Atkins. 
Nice to have you with us today. Look forward to your testimony;
    The Honorable Ken Cuccinelli, one of our distinguished 
guests. Wonderful to have you here with us today, who has a 
long record on transportation and environmental issues;
    Mr. Greg Cohen, President and CEO of the American Highway 
Users Alliance; and Mr. Andre Monette, Attorney, Best & 
Krieger.
    We welcome all of you. As is the tradition of our 
committee, your entire testimonies will be made part of our 
record. You may proceed as you wish.
    But before we do that, we have an introduction by Senator 
Merkley, as promised.
    Senator Merkley. Thank you very much, Mr. Chair. I am very 
pleased to introduce Paul Mather from the State of Oregon, who 
is the Highway Division Administrator at the Oregon Department 
of Transportation. He has been working with ODOT since 1983. 
ODOT has a long history of proactively working with other State 
and Federal agencies to protect Oregon's environment and move 
forward on projects in a timely and cost-effective way.
    Since salmon was added to the endangered species list, ODOT 
had to submit a large portion of its plans through a new 
regulatory process. In response, ODOT, including Mr. Mather, 
have worked alongside several State and Federal agencies to 
develop a common understanding for reviewing projects which has 
led to a streamlined approval process and improved management 
of polluted runoff.
    In addition, ODOT has been implementing programs to reduce 
polluted runoff within its day-to-day highway operations that 
have had a positive result in reducing the amount of pollutants 
entering the water supply.
    While ODOT has been very aggressive in tackling polluted 
runoff, it is currently working on developing a more strategic 
plan to help anticipate the need for stormwater runoff 
management and meet the requirements of both the State of 
Oregon and Federal laws.
    I am just going to conclude by noting that I am delighted 
that Mr. Mather has been so involved in this important area and 
is bringing his expertise to share with us before the 
committee. Welcome.
    Senator Cardin. Mr. Mather, you may proceed.

  STATEMENT OF PETER MATHER, HIGHWAY DIVISION ADMINISTRATOR, 
              OREGON DEPARTMENT OF TRANSPORTATION

    Mr. Mather. Thank you, Senator Merkley, for the nice 
remarks.
    Mr. Chairman, Senator Vitter, thank you for the opportunity 
to testify here today. I am Paul Mather, Highway Division 
Administrator for the Oregon Department of Transportation.
    Protecting the environment is a core value for Oregonians, 
and the Oregon Department of Transportation is doing its part 
to protect our streams and rivers from stormwater runoff from 
our highways. In response to the listing of salmon as a 
threatened species under the Endangered Species Act, ODOT has 
worked with the State and Federal regulatory partners to 
develop and implement a set of measures to address stormwater. 
By implementing these measures, ODOT will progressively reduce 
the impacts highways have on the quality of the State's waters.
    These measures were negotiated with our regulatory partners 
and address the unique circumstances we face in the Pacific 
Northwest. This negotiation allowed us to achieve the 
regulatory goals around environmental protection while 
protecting ODOT's regulatory certainty and measures that can be 
implemented at a reasonable cost. The approach we developed 
includes flexibility in how we meet the performance standards 
for a project, allowing for offsite mitigation where site 
conditions at a project make it difficult to achieve the goals 
onsite. This allows progress to be made on water quality 
without derailing important transportation projects.
    Going forward, ODOT hopes to work with regulatory agencies 
to move away from the project-by-project approach and develop a 
more strategic watershed-based effort that focuses on areas 
where improvements to highways can have the greatest 
environmental benefit at a reasonable cost. While Federal 
direction in this area could improve environmental outcomes, 
any nationwide effort needs to take into account the unique 
circumstances in each State while allow flexibility for 
negotiating mutually beneficial outcomes between regulators and 
transportation agencies.
    To summarize my remaining testimony, I would like to close 
just with a couple main points that I think are key take-always 
from my testimony.
    First, ODOT has found success by building a strong 
relationship in agreements with regulatory agencies. The 
biggest barrier to building these relationships was trust. It 
took us 2 years to develop the streamlined process we use 
today. It took us, ODOT, taking ownership of our responsibility 
and it took regulatory agencies changing their focus away from 
rules and regulations, and focusing on the overall improvement 
to water quality in the watershed.
    My second point is funding. We need funding to build and 
maintain these features. Without long-term funding, planning 
for complex projects is very difficult. To invest in new 
techniques and processes, we need long-term funding we can 
count on. The catalyst in Oregon for the development of our 
streamlined process was a major investment by the Oregon 
legislature in transportation.
    Mr. Chairman, members of the committee, again, thank you 
for the opportunity to testify and share a few thoughts from 
Oregon.
    [The prepared statement of Mr. Mather follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Cardin. Thank you very much.
    Mr. Gibson.

   STATEMENT OF JAMES P. GIBSON, JR., DIRECTOR OF INTEGRATED 
  WATERSHED MANAGEMENT, SANITATION DISTRICT NO. 1 OF NORTHERN 
                            KENTUCKY

    Mr. Gibson. Chairman Cardin, Ranking Member Vitter, and 
other members of the subcommittee, I appreciate the opportunity 
to speak before you this afternoon. My name is Jim Gibson and I 
am the Director of Integrated Watershed Management for SD1.
    As the second largest public sewer utility in Kentucky, SD1 
provides regional wastewater and stormwater services to 
approximately 300,000 residents and 35 municipal jurisdictions 
in Northern Kentucky. Stormwater management is an essential 
service in Northern Kentucky. It protects against property 
damage, that is, flooding and erosion, and it preserves the 
integrity of approximately 1500 miles of Northern Kentucky 
stream miles.
    I would like to briefly touch on three impacts associated 
with stormwater management--stream damage, property damage, 
infrastructure damage--highlight some regulatory obligations, 
and then conclude with the need for a regional calibrated 
standard.
    First is impacts to stream. Stream integrity is rooted in 
the natural flow regime, the hydrology, of a watershed. 
Alteration of the landscape in any way, but particularly the 
addition of impervious surface, drastically changes the 
hydrology of a watershed and therefore impacts overall 
integrity of streams. For this reason, stormwater management is 
crucial for protecting our waterways.
    Second is impacts to property. Absent or inadequate 
stormwater management has been documented across the U.S. to 
accelerate stream instability, bank erosion, and channel 
enlargement downstream. This is also apparent in Northern 
Kentucky based on several accounts offered by property owners 
that described dramatic changes in stream morphology after a 
watershed has been developed. These anecdotal observations are 
supported by SD1's extensive hydro modification monitoring 
program, which has documented at channel area, width, and depth 
of streams draining developed are significantly larger than 
those draining undeveloped watersheds of similar size.
    Third, impacts to infrastructure. Impacts of unstable 
streams to adjacent infrastructure and property have been 
documented for over 30 years. As unstable streams become wider 
and deeper, they often expose and damage infrastructure in 
adjacent riparian zones. An ongoing review of costs from recent 
projects in our region revealed that in one Northern Kentucky 
County alone, during 2011, approximately $3 million was spent 
on stormwater-related repairs associated with State-funded 
roadways.
    Next, meeting water quality obligations. Currently, MS4 
permitted dischargers, such as cities, counties, and special 
utility districts, are required to invest in controls to manage 
stormwater runoff. One of the largest contributors of 
impervious areas and, therefore, stormwater runoff in the U.S. 
is transportation infrastructure. In Northern Kentucky, 
pavement, including roadways, accounts for approximately 63 
percent of the total impervious area, and State roads are one 
of the largest single entity sources of this impervious area, 
comprising approximately 24 percent of those paved surfaces. 
Given the contribution of State roadways to the total 
impervious area of Northern Kentucky, it is highly unlikely 
that even the best stormwater management practices applied to 
the remaining impervious areas would adequately protect the 
integrity of Northern Kentucky streams.
    Finally, the need for a regionally calibrated stormwater 
management. SD1's experience shows that effective stormwater 
management is not necessarily one-size-fits-all. Although 
national standards can play an important role, SD1 has taken 
the initiative to develop a regionally calibrated approach that 
is protective of local streams but, more importantly, the 
feasibility of Northern Kentucky's region. SD1's extensive data 
collection and modeling efforts are consistent with 
international literature that indicates managing stormwater to 
match the natural disturbance regime is a key design goal to 
promoting ecological and geomorphic integrity.
    In conclusion, stormwater runoff does not respect political 
or geographical boundaries, nor the agency that is responsible 
for that impervious surface. Impervious surfaces that are 
exempt from adequate stormwater management, such as Federal/
State roadways, comes at the expense of other entities, such as 
downstream property owners who lose land from accelerated 
stream erosion or regulated stormwater utilities who might be 
burdened with future regulatory obligations associated with 
impaired or degraded waterways.
    Additionally, inadequate stormwater management from 
impervious surfaces contributes to stream erosion that, in 
turn, impacts adjacent infrastructure. Therefore, adequate 
stormwater management of all impervious surfaces is not only in 
the best interest of stormwater utilities, but also in the 
interest of Federal and State Transportation Departments for a 
more sustainable approach to managing infrastructure. Ensuring 
that adequate stormwater management is implemented on all 
impervious surfaces goes beyond our Nation's water quality. 
Adequate stormwater management is in the best interest of 
anyone who pays a stormwater bill, a power bill, or even gas 
tax, because ineffective stormwater management causes impacts 
to those utilities that require repairs that are ultimately 
funded by ratepayers.
    On behalf of Sanitation District No. 1, we thank you for 
the opportunity to provide this testimony.
    [The prepared statement of Mr. Gibson follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
           
    Senator Cardin. Thank you for your testimony.
    Ms. Coble.

   STATEMENT OF KIM COBLE, VICE PRESIDENT FOR ENVIRONMENTAL 
     PROTECTION AND RESTORATION, CHESAPEAKE BAY FOUNDATION

    Ms. Coble. Good afternoon, Chairman Cardin, Ranking Member 
Vitter, Senator Merkley. My name is Kim Coble. I am the Vice 
President of Environmental Protection and Restoration for the 
Chesapeake Bay Foundation. On behalf of our Board of Trustees, 
our staff, and our over 200,000 members, I thank you for 
inviting me today.
    For more than 40 years, CBF has been working to restore the 
Chesapeake Bay and its rivers and streams. The Chesapeake Bay 
is the largest estuary in the United States. It encompasses 
64,000 square miles, similar to the size of England. It is home 
to about 17 million people and stretches through six States and 
the District of Columbia, all the way from Coopers town, N. Y. 
to Cape Henry, VA., from the Allegheny Mountains to the 
Atlantic Ocean, obviously having many, many miles of roadways 
and highways in it.
    At the outset, I would like to thank and acknowledge the 
committee's longstanding work to protect the Chesapeake Bay. As 
you know, the Bay has suffered for decades from excess 
nitrogen, phosphorus, and sediment pollution. Because of your 
leadership, we are seeing the incredible progress in our fight 
to save the national treasure. However, much more needs to be 
done. Namely, we need to address the growing source of 
pollution to the Bay, which is stormwater polluted runoff.
    Runoff from developed land seriously impacts the rivers, 
streams, and the Chesapeake Bay. There are almost 4.9 million 
acres of developed land in the Chesapeake watershed, making up 
about 12 percent of the land that drains into the estuary. 
Stormwater runoff from that land causes 17 percent of the 
nitrogen pollution, 16 percent of the phosphorus pollution, and 
25 percent of the sediment pollution to the whole overall Bay 
system; and in some States and rivers those numbers are much 
higher. For example, in Maryland, nearly one-third of the 
nitrogen, phosphorus, and sediment pollution going into the Bay 
comes from stormwater pollution.
    Across the watershed, runoff causes harm to many, many 
rivers and streams. In both Pennsylvania and Maryland, nearly 
2500 miles of rivers and streams are designated as impaired 
because of stormwater under the Federal Clean Water Act. How 
much of the runoff comes from highways? Based on statewide 
assessments, each year Federal aid roads and highways in the 
Chesapeake Bay States create nearly 21 million pounds of 
nitrogen pollution, more than 2 million pounds of phosphorus 
pollution, and almost 633,000 tons of sediment pollution.
    How is this possible? Consider this. Just one inch of rain 
on one acre of hardened surfaces such as a highway produces 
27,000 gallons of polluted runoff. For the Bay and the rivers 
and streams, this is devastating. But it does not have to be. 
There are modern ways to design stormwater management practices 
that can be used whenever new Federal highways are built or 
whenever old facilities are rehabilitated. For example, 
wetlands can be used to filter runoffs; engineered roadside 
swales and bio retention areas can be installed; and, for more 
urban settings, special pavement or planters and bum pouts have 
been very successful.
    Investing in these kinds of solutions has also the 
potential to boost the local economy because it means local 
construction jobs for workers and engineers. A study by the 
Environmental Finance Center at the University of Maryland 
concluded that runoff pollution control projects bring a return 
to local economies of up to 1.7 times the investment. Each $100 
million invested in Lynchburg, Virginia, for example, could 
produce $1.74 million for the local economy and pay the 
salaries of 1,440 local workers. In Anne Roundel County, 
Maryland, the same kind of investment would mean $115 million 
for the local economy and support 780 local jobs.
    Here in the Chesapeake watershed, States are committed to 
reducing the pollution that is harming the Bay and rivers and 
streams; however, polluted runoff is a significant and growing 
source of the pollution that impacts fish, humans, and property 
values in the Chesapeake Bay area. Today, highways produce 
sizable pollutant loads to our rivers and streams, but we can 
change this. We can design highways to use the existing 
landscape as much as possible to slow and infiltrate polluted 
water; we can put practices in place that mimic nature; and we 
can invest in local workers to install these practices so 
investments will stay in the local economies. The better we 
engineer our highway systems to manage our stormwater, the 
healthier our rivers, streams, Bay, and communities will be.
    Thank you for the opportunity to be here today.
    [The prepared statement of Ms. Coble follows:]
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    Senator Cardin. Thank you very much.
    Mr. Medina.

STATEMENT OF DANIEL E. MEDINA, PHD, PE, D.WRE., CFM, TECHNICAL 
                    DIRECTOR--WATER, ATKINS

    Mr. Medina. Thank you, Chairman Cardin and Ranking Member 
Vitter and Senator Merkley for inviting me here today. My name 
is Dan Medina. I am the National Technical Director for Water 
for Atkins. We are an international engineering firm. We 
specialize in all kinds of urban infrastructure. Highways are a 
significant source of revenue for us, as they are a source of 
employment for a large percent of our 2,700 employees based in 
the U.S.
    I am also here on behalf of the Water Environment 
Federation, which is an industry association representing 
hundreds of clean water agencies across the Nation. In 2012, 
the Federation published this Design of Urban Stormwater 
Controls handbook, which is national handbook that establishes 
the design principles for stormwater controls in all urban 
areas, including highways. I had the privilege and the 
responsibility to be the editor of this publication here.
    Let me start by saying that the U.S. Geological Survey 
places the most remote location in the lower 48 States deep 
into Yellowstone National Park. Yet, that location is only 22 
miles away from the nearest road. That essentially highlights 
the omnipresence of our highway system; it takes us to our 
homes, it takes us to our jobs, but also to those awe-inspiring 
locations that should be preserved for future generations. 
Therefore, the highway system should lead the way, literally, 
into environmental stewardship.
    We have heard the impacts of highway runoff, so I won't 
repeat them here. But one thing to emphasize is that there is 
no distinction between water quantity and water quality when it 
comes to highway runoff, or any kind of runoff, for that 
matter. They are all inextricably linked and they cause the 
same problems. We cannot separate them. It doesn't know where 
to go for quality or for quantity. Moreover, receiving streams 
that have to deal with these problems are the responsibility of 
municipalities that have to invest taxpayer dollars or 
ratepayer dollars in solving these problems. Therefore, 
highways are part of the problem and need to be part of the 
solution.
    The good news is that American engineering has the 
expertise to mitigate these impacts. For 30 years we have had 
an approach known as green infrastructure for stormwater 
management that has been pioneered by Prince George's County 
here in Maryland. You probably heard about pervious pavement 
and bio retention facilities, stormwater wetlands. All these 
devices are designed to capture water and put it in the ground, 
where it belongs, as opposed to letting it go over impervious 
surfaces and into our streams.
    Green infrastructure has been utilized in neighborhoods, in 
streets, in military facilities, but rarely is it utilized in 
highways. Other countries, like the UK, have mandatory 
regulations that force green infrastructure to be one of the 
options considered. In Australia, for example, green 
infrastructure is part of the considerations when building any 
major highway project. There is an example called EastLink near 
Melbourne. It is about 27 miles long and includes about 17 
interchanges and 88 bridges, hardly a country road, and uses a 
system of 70 wetlands to capture the water and put it in the 
ground.
    In the U.S. we have the leadership from several States, the 
Washington State DOT, Maryland Highway Administration, and, of 
course, you have heard the experience from our colleagues at 
the Oregon DOT.
    Better water management also makes for safer roads. An 
example here is something called permeable friction courses, 
which is essentially permeable pavement that is laid on top of 
regular pavement because it absorbs the water, it reduces the 
dangers from splash and spray and hydroplaning, but it also 
acts as a stormwater filter. Researchers from the University of 
Texas in Austin and North Carolina State University showed that 
permeable friction courses can reduce as much as 90 percent of 
the total suspended solids in a highway.
    The final point I would like to make is about economics. 
There is a perception that green highways are going to be 
delayed, they are going to cost more, and they are going to be 
more difficult to permit. The experience from the UK indicates 
that drainage systems constructed with green infrastructure in 
mind are 15 to 25 percent cheaper to construct, and also the 
maintenance cost is comparable, if not less, as those of 
conventional drainage systems. And then there is the issue of 
job creation. For planners, for engineers, for designers, for 
construction companies, for maintenance crews that specialize 
in green infrastructure could access the highway market.
    In conclusion, American engineering has the expertise to 
improve how we handle runoff from highways today. Green 
infrastructure is a proven technology. It results in cleaner 
water, safer roads, fewer flood losses, more receiving 
infrastructure, including transportation infrastructure. It is 
an approach that will create jobs; it will not stall the 
installation of new highways or make it more costly. This 
highway reauthorization bill is an excellent opportunity to 
promote sustainability practices for our highway system.
    In closing, on behalf of Atkins and the Water Environment 
Federation, I would like to thank you for having me here today.
    [The prepared statement of Mr. Medina follows:]
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    Follow-up Questions for Written Submission, from Senator 
Benjamin L. Cardin
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    Senator Cardin. Thank you very much.
    Mr. Cuccinelli.

               STATEMENT OF HON. KEN CUCCINELLI, 
                    CUCCINELLI & ASSOCIATES

    Mr. Cuccinelli. Senator Vitter, Senator Merkley, Chairman 
Cardin, thank you all for the opportunity to be here with you. 
As this committee addresses runoff and pollution related to 
public infrastructure, Mr. Chairman, I appreciated your cost 
effectiveness focus in your opening remarks, and I would 
appreciate the chance to address two aspects of this issue: 
one, EPA's overreach in this area and, two, the devastating 
impacts of the EPA involving itself in local land via 
stormwater management.
    I learned about both EPA's overreach and the consequences 
as Virginia's attorney general in 2012.
    In Northern Virginia, just south of here, alongside the 
Beltway, I-495 in Fairfax County, the EPA tried to use a TMDL 
to dramatically expand its jurisdictional reach by interpreting 
existing law in a way that treated rainwater as if it were a 
pollutant under the Clean Water Act. It was very creative 
layering.
    If it sounds strange to you that the EPA would treat 
rainwater as a pollutant under the Clean Water Act, it sounded 
strange to us too, and to the local government involved, which 
is a Democrat-controlled board of supervisors, Fairfax County, 
one of the most environmentally aggressive local governments in 
Virginia.
    We quickly learned that the EPA's outrageous overreach was 
experimental in nature. We were one of only four instance sin 
which EPA tried to use TMDLs in this manner in the whole 
Country. And EPA made it clear that if they succeeded in 
Virginia, they were going to take it nationwide.
    The cost to Virginia as a whole via our Virginia Department 
of Transportation was estimated to be approximately $70 million 
in the instance of one creek, and the financial impact of 
Fairfax County's taxpayers was approximately $200 million. That 
is $800 per family of four in Fairfax County for one regulatory 
effort over one creek.
    Mind you, all of this was with the knowledge that what EPA 
was attempting to mandate would not help the Accosting Creek. 
Fairfax County had already spent over $100 million addressing 
the very same issues that EPA said it wanted to address via the 
TMDL, and Fairfax had further plans to spend more to continue 
to improve the Accosting Creek without any mandates.
    We were left with no choice but to sue the EPA to contest 
its incredible overreach in water regulation related to runoff 
from a Federal highway.
    The lawsuit was no partisan exercise, the 10-member board 
of supervisors of Fairfax County, seven Democrats and three 
Republicans, voted 9 to 1 to join VDOT in the lawsuit. This 
Democrat-led local government was even willing to sue in July 
2012, right in the heat of the President's reelection campaign 
in a swing State.
    We won overwhelmingly. The Federal court was aghast that 
the EPA would try to twist and stretch the Clean Water Act so 
badly. There is a warning here for this committee. I know the 
administrator has made a number of ``restrained'' comments 
about what the regulation or some of the regulations you are 
contemplating will or won't do, and I am here to tell you that 
they will take it to what you think is the limit and beyond, 
way, way beyond.
    And they don't care about the costs or the lost jobs. And I 
choose the phase ``they don't care'' quite intentionally.
    EPA knew that what they were trying to force Fairfax County 
and VDOT to do with the TMDL would not even achieve their own 
environmental goals. And even faced with the pleading of one of 
the most aggressive local governments in Virginia when it comes 
to environmental stewardship, EPA would not give one inch. They 
were merciless.
    Setting the approximately $270 million in costs that would 
have been necessary to comply with EPA's illegal road-related 
TMDL, let me explain what compliance would likely have required 
in real-world terms.
    Because EPA's complaint was with rainwater flowing off of 
the Beltway, and because VDOT didn't own any property they 
could use to slow the flow of the rainwater, we would have had 
to condemn houses in some old middle-class neighborhoods along 
the Beltway, as long as some small businesses. After evicting 
the long-time residents, VDOT would have torn down their houses 
and built retaining pools and planted grass to allow the water 
to soak into the ground instead of flowing into the Accosting.
    As one citizen, I find the EPA's willingness to destroy 
businesses and evict people from their homes for virtually no 
environmental benefit not just offensive, but scary. This is an 
agency that is out of control with its own power, and it 
concerns me that this committee is now considering expanding 
that power; power to displace families and destroy businesses.
    Finally, as a practical matter, the authority this 
committee is contemplating granting to EPA would give EPA veto 
power over an enormous number of local governments' land use 
decisions. And EPA's track record of simply not caring about 
the impact its decisions have on families, businesses, and 
economic opportunities suggests this committee should be going 
in exactly the opposite direction regarding EPA power and 
authority.
    Thank you.
    [The prepared statement of Mr. Cuccinelli follows:]
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    Senator Cardin. Thank you very much.
    Mr. Cohen.

STATEMENT OF GREG COHEN, PRESIDENT & CEO, AMERICAN HIGHWAY USER 
                            ALLIANCE

    Mr. Cohen. Mr. Chairman and members of the subcommittee, I 
appreciate this opportunity to present the views of the 
American Highways Users Alliance regarding transportation 
infrastructure runoff.
    Before I begin my summary, I just want to say that we 
applaud the bipartisan leadership of this committee for 
introducing the highway title of MAP-21 reauthorization bill. I 
have testified many times on this need and we urge a full 
committee vote in support of the bill that was introduced on 
Monday, this Thursday at the markup.
    From State to State, the availability of water restoration 
funds, the significance of the water resources involved, and 
the extent of water quality problems vary tremendously. The 
availability of Federal funds to address water quality, 
including pollutants from runoff, is critical. Incremental 
progress should be made in a manner that focuses on goals and 
outcomes, where States learn from one another, rather than an 
approach that mandates that every State do the exact same list 
of activities under very different circumstances.
    Special care should also be made to understand that 
incremental progress in improving water quality should not come 
at the expense of other important needs, such as the economy 
and public safety.
    So how do we address our water quality needs without 
unintended consequences, like exacerbating our highway funding 
challenges or slowing down transportation project approvals? 
Some approaches can be helpful, while others actually create 
more problems. Let me briefly discuss some possible approaches 
and why we regard some favorably and others as problematic.
    Option 1: Congress could authorize appropriations for a 
significant new program for funding to the States for 
mitigation and treatment of watersheds, with flexibility and 
technical assistance, and empower the States to consider 
innovative approaches. Separately, or as part of such a 
program, Congress can encourage closer coordination with the 
State Transportation Departments on issues related to 
transportation runoff. This approach provides a holistic method 
to address the challenges and would allow restoration 
management to consider all sources of watershed degradation, 
including transportation runoff. Aggressively funding this 
approach would address the problem without negative impacts to 
public safety, congestion relief, and other goals or the goals 
of MAP-21.
    Option 2 would be to continue to allow project mitigation 
to be an eligible expense within the highway program. 
Currently, mitigation is eligible under the transportation 
alternatives and the traditional highway construction programs. 
In having provided this option, Congress was aware that outlays 
from the Highway Trust Fund for stormwater features would 
reduce some outlays for other worthy projects. Yet, it can help 
address community concerns about the environmental impact of 
transportation projects. As an example, I worked on a project 
called the Inter county Connector in Maryland. That was a 
project that involved significant stormwater management and 
watershed restoration, to the extent that the watershed is 
reportedly in better condition after road construction than 
before the ICC was built. In other locations it may not be 
effective, desirable, or worthwhile to tie a highway project to 
a watershed restoration effort. Flexibility for the States is 
the key.
    Option 3: Congress could create unfunded Federal mandates 
that require specific EPA-approved designs for certain types of 
highway improvements in order to address runoff. We oppose this 
approach. A design mandate would address runoff in a piecemeal, 
project-by-project manner, ignoring several issues. First, the 
current best practice is watershed-wide approach, rather than 
looking at the design of an individual highway project in 
isolated areas where the road is being improved. Second, this 
approach would potentially delay and complicate transportation 
project approvals, even making some safety improvements 
infeasible. Third, this approach may include requirements that 
are difficult or impossible to achieve in certain areas.
    Before closing, let me mention that the EPA has recently 
released proposed Section 404 wetland permit regulations. The 
latest rulemaking is quite controversial among my members. I 
know that obtaining Federal approval for Section 404 permits 
can be a real challenge, in some cases triggering a full NEPA 
review in preparation of an EIS.
    Here is just one example where we believe there is a 
problem: The EPA wants the authority to regulate the filling of 
manmade roadside ditches. The practical impact is that if a 
county government wants to add safety shoulders to a stretch of 
a dangerous two-lane rural road, even when there is no Federal 
funding involved, the county could then be required to avoid 
and minimize the impact to these manmade ditches. If that is 
not feasible, a permit has to be issued to fill the ditches and 
a mitigation plan is needed. Even if an avoidance minimization 
plan would stretch the resources of the county, it would not be 
able to proceed.
    While waiting to get through the Federal bureaucracy, the 
safety of motorists on the road would be at risk. This is part 
of the reason why it takes so long to get projects done. 
Congress could serve people and the environment better by 
approaching watershed restoration and water quality 
improvements in a more rational, cost-effective, and holistic 
way.
    In conclusion, among the various options to promote clean 
water, we recommend Congress provide a significant General Fund 
authorization for watershed restoration and continue to allow 
features that address that issue to be an eligible expense 
under the highway program. We ask Congress to fund 
transportation infrastructure and watershed restoration 
programs independently so that these worthy programs are not 
competing with each other for Federal funds. And we urge 
Congress not to take any action which would slow down or lead 
to the cancellation of needed highway projects because of 
expensive design mandates or redirection of highway funds.
    Thank you for providing the Highway Users this opportunity.
    [The prepared statement of Mr. Cohen follows:]
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    Senator Cardin. And thank you for your testimony.
    Mr. Monette.

             STATEMENT OF ANDRE MONETTE, ATTORNEY, 
                      BEST BEST & KRIEGER

    Mr. Monette. Good afternoon, Chair Cardin and Senator 
Vitter. My name is Andre Monette and I am an attorney with the 
law firm of Best & Krieger. I represent public agencies, 
ranging from transportation districts to water districts, 
municipalities, and school districts on Clean Water Act issues 
throughout California.
    But first let me thank the committee for having me here 
today. It is a great honor to provide testimony on this 
extremely important issue.
    I just have a few points to make.
    The first one is that there is absolutely no question that 
stormwater runoff from transportation projects is a source of 
pollution in the Nation's waterways. Obviously, the pictures 
that were shown and the testimony from this panel demonstrate 
that, and it is common sense.
    But what is more important and I think the question for 
this committee, for the Senate, is whether or not the States 
and the EPA have the tools that they need already to address 
that problem. And the answer to that question is yes, 
absolutely. The Clean Water Act and the NPDES program within 
the Clean Water Act give the States and gives the EPA the 
ability to regulate the full range of discharges from 
transportation infrastructure projects and other types of 
projects, and it gives the EPA and the States the flexibility 
to do that on a case-by-case, site-by-site, project-by-project 
basis, which is appropriate given stormwater and the nature of 
stormwater. Hydrologic conditions vary from site to site, and 
as a result of that the stormwater profile of a project is 
going to vary from site to site. So obviously the management 
practices that are implemented at a site to control stormwater 
need to match the hydrologic conditions of that area.
    What is not helpful to stormwater control is one-size-fits-
all, top-down, command and control regulation and infiltration 
and management strategies that are implemented and issued in 
Washington, and expected to be implemented across the Country. 
The hydrology of this Country is so varied it is silly to even 
mention. Projects in the Everglades are going to be very 
different from projects in the Mojave Desert or Oregon or 
Alaska, and it makes sense that dischargers and regulators 
retain the flexibility to implement the management practices 
they need on each project.
    So the second point I wanted to make, and this brings me to 
that second point, is to the extent that there are waters or 
activities or discharges that are beyond the reach of the 
Federal Clean Water Act, the States retain the ability to 
regulate those activities and discharges, and many, many States 
have comprehensive, strong programs. Oregon is here today; they 
have an excellent program. California has an excellent program. 
The States retain that ability and they don't need the Federal 
Government and Federal agencies to come in and overreach their 
authority and manage stormwater because they think they can do 
a better job at it; and Mr. Cuccinelli's testimony is an 
excellent example of that.
    So an example of that is that we are seeing now is the 
EPA's proposed rulemaking on waters of the United States. There 
is a very real danger for the proposed rule that was issued 
last month that waters of the United States and thereby the 
reach of the Clean Water Act is going to be extended well 
beyond what Congress intended and what the courts have 
interpreted the Clean Water Act to mean, and I have two 
examples of that.
    The first involves municipal stormwater systems. As you all 
know, municipal stormwater systems are primarily open channels 
and ditches; sometimes it is a canalized stream, a lot of times 
it is a ditch or a channel or a canal that has been constructed 
to convey flood waters away from houses and people. Under the 
proposed rule, many portions of stormwater systems that are 
internal to the system are going to be designated as waters of 
the United States, and what that means as a practical matter is 
that these waters are going to have to meet a fishable and 
swimmable standard under the Clean Water Act and that 
designation would prevent use of those waters for treatment 
controls and would force discharges that are internal to an MS-
4 system to meet a fishable, swimmable standard. Obviously, 
that is not tenable for a discharger.
    The other example where the proposed rule would potentially 
overreach is in the proposed definition of adjacent waters and 
neighboring waters. The proposed rule is going to designate 
waters that are within the floodplain of a traditional 
navigable water as a water of the United States. Floodplains 
can be hundreds of miles wide in some places, many miles wide 
at a minimum; and now isolated waters that were traditionally 
isolated under court decisions like the Solid Waste Agency of 
Northern Cook County, are going to be considered waters of the 
United States and subject to the Clean Water Act.
    I am just about out of time, so I thank you for the 
opportunity and I will conclude my testimony.
    [The prepared statement of Mr. Monette follows:]
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    Senator Cardin. Well, let me thank all seven of you for 
your testimony. I thought it was extremely helpful in trying to 
get a handle on the issues. I am going to start with Ms. Coble 
in that the importance of dealing with the pollutants that you 
mentioned, the nitrogen levels, the phosphorus, and the 
sediment from the major sources that go into the Chesapeake Bay 
watershed. We have had programs to deal with our farmers; we 
certainly are dealing with the treatment of waste; and we have 
storm runoff, which are the three largest sources of identified 
pollutants going into the Bay. You indicate that as much as 
one-third in certain areas come from storm runoff. If we did 
not include storm runoff as one of the regulated pollutants 
going into the Bay, the burdens on the other sectors would be 
much greater, making it much more challenging for farming 
operations or for our municipal water managers.
    So how important is it, as you see it, from the Chesapeake 
Bay management that storm runoff be a major part of the 
strategy to deal with the Chesapeake Bay?
    Ms. Coble. It is critically important that it be included 
in the equation. The Chesapeake Bay watershed is under a TMDL 
to reduce nitrogen, phosphorus, and sediment pollution because 
the Chesapeake Bay is an impaired waterway. The quality of it 
is such that it doesn't sustain life in part of its volume each 
summer and there are requirements to reduce those pollutants. 
And there is not one of us that lives in the watershed that 
isn't part of the problem and, therefore, part of the solution; 
nor is there one sector that is not part of the problem and 
part of the solution.
    As I said, in some States, such as Maryland, up to a third 
of the pollution is coming from urban areas, and in some 
watersheds around D.C., for example, it is even far more than 
that. If we don't include stormwater in the reduction strategy, 
the burden gets higher and higher on every other sector if we 
want to stay committed to a goal of clean water. If we want to 
compromise on that goal, then we can let stormwater go. I would 
argue that would be the wrong approach, though.
    Senator Cardin. Mr. Cuccinelli, in regards to that Northern 
Virginia case, I have looked at it very closely and it did deal 
with the authority under TMDL, no question about that, but did 
not deal with the authority under Clean Water Act to deal with 
pollutants that come from stormwater under the NPDES, as was 
pointed out, I think, by Mr. Monette.
    I do very much appreciate Mr. Medina's comments and would 
love to get further clarification on that. You are indicating 
that it actually could be cost-effective to incorporate storm 
runoff in transportation designs from the beginning. If I heard 
you correctly, I thought you said in some cases might even be 
less expensive, so it would not be a choice between more road 
building or dealing with storm runoff.
    Mr. Medina. Well, that has been the experience in other 
countries. Like I mentioned in my testimony, the UK, that has 
been the lesson that has been learned as far as constructing 
the systems, mostly because they have been planned from the 
beginning with that in mind. When it comes to a retrofit 
situation, it is a different story, because we already made an 
investment and now we have to rip it all up and build something 
new.
    Another thing to keep in mind is that when we calculate 
cost, we do it in a very localized way; this is how much it is 
going to cost to build this highway. But we never factor the 
cost, what the municipalities that have to deal with the 
problems when something, not just a roadway, but any particular 
development cost us probably in the waterways. So when we look 
at those things holistically, when we look at the benefits that 
are achieved by, say, green infrastructure in terms of 
esthetics and the creation, things that are very hard to 
monetize but are no less real, if we looked at all those things 
together, we will find a much better picture when it comes to 
building sustainable infrastructure.
    Senator Cardin. Thank you.
    To Mr. Mather and Mr. Gibson, Mr. Gibson, I am sorry that 
the photos that you had in your written testimony were not 
displayed, because they are pretty shocking, and the type of 
damage that you all have to confront. Now, from a local 
government's point of view, a State government's point of view, 
once the damage is done, you have to deal with that. So you may 
have been able to build more roads, but now you have the 
problem how you are going to fix the roads. So from a cost-
effective basis, wouldn't it be better to deal with the costs 
of runoff up front than having to deal with the maintenance, 
repair, and damage cost that you confront as you move forward?
    Mr. Gibson. Correct. That is the one thing we do see. If we 
don't manage these systems up front, then you have the other 
utilities, stormwater utilities, you have gas and electric 
companies. You have the transportation departments themselves 
have to fix these damages that occurred at prior times when 
they were build.
    Senator Cardin. I will just make one comment. As we have 
been dealing with the reauthorization of surface 
transportation, I have been advocating for our committee to put 
attention on maintaining our existing transportation 
infrastructure and less attention on building new 
infrastructure. I want new infrastructure, don't get me wrong, 
but things are falling apart. And if you neglect that you 
currently have, you are not doing a service by building 
additional roads that may lead to unsafe conditions and 
unmanageable transportation systems.
    With that, I will turn to Senator Vitter.
    Senator Vitter. Thank you, Mr. Chairman, and thanks to all 
our witnesses.
    Mr. Cuccinelli, I wanted to ask you, because I thought your 
testimony was very striking in the context of EPA's recent 
proposals to expand its authority under the Clean Water Act. I 
know you follow this. I am sure you have heard the statements 
from the administrator, which basically are saying this is 
clarification of existing law, this is no big deal. I am 
curious, what is your gut reaction of that, having lived 
through the Accotink experience and litigation and the sort of 
position EPA took in that instance?
    Mr. Cuccinelli. Well, I don't think by any means it is 
limited to that instance. One of the institutional problems you 
have is that the EPA, whatever grant of authority is provided, 
always overreaches it. I don't know of an example, and I don't 
think a person in this room could name an example, where 
Congress set out some grant of authority to the EPA and they 
didn't actively, at some point thereafter, look to push the 
outer envelope of that, and to do it. I mean, Judge O'Grady's 
ruling in our case was not appealed, which is rather unusual 
for EPA. They are tenacious fighters, and to not appeal tells 
you just how swamping that ruling was.
    In about 20 years of litigating--and I was the lead 
attorney on that case, I argued the case, litigated alongside 
the board of supervisors of Fairfax--I can't remember a judge's 
order where I wouldn't change a sentence; and it was that 
powerful. The judge was so overwhelmed with what EPA was trying 
to do, and they clearly stated this is experimental, and if we 
can do it here we are going to take it everywhere.
    Now, understand the Accotink has been around a long time. 
We are the oldest part of America here in Virginia, and I 
brought with me one sentence from George Washington's diary 
from 1772: Set off for Williamsburg, but not able to cross 
Accotink, which was much swelled by the late rains. I was 
obliged to return home again. That was when he was a member of 
the House of Burgesses, now the House of Delegates. And this 
isn't a new problem in our part of the State.
    My cautionary warning to you all is that when you don't 
already have control, and by you I mean the legislative branch, 
over the aggressiveness and extent of the reach of this rogue 
agency, to grant it more power and authority is an extremely 
dangerous thing. And I will just use one example from other 
testimony; it was glossed over a little bit. The cost 
difference between taking greater care to deal with stormwater 
as you build new facilities versus the radically dramatic 
impacts and costs of retrofitting, the order of magnitude is 
extraordinary, and the impacts on jobs are not positive, they 
are negative.
    If they were positive, Milton Friedman's old comment about 
digging the Panama Canal with spoons would make sense because 
there would be a lot more jobs. We are talking about destroying 
businesses in the one single case that I talked to you about in 
Virginia and evicting families who had lived in their homes for 
decades. Even in a transient community like Northern Virginia, 
these were old middle class neighborhoods, so older folks lived 
there, inevitably, people more often displaced, and they are 
going to be not merely put out, but the economy around them is 
going to be harmed.
    This is an economic negative overall, and unless you 
categorically hermetically seal the EPA and only let them deal 
with this going forward on new projects, then you are going to 
have an agency that is going to run amuck and your local 
governments are going to be coming back to you and saying why 
is the EPA at the table for local land use.
    Senator Vitter. Great point.
    Mr. Medina, to come directly off that, because it does 
allude to your comment, I want to make sure I understood it and 
underscore it. It is true that in terms of cost-effectiveness 
it is a different planet whether you are talking about starting 
from scratch on a new project versus retrofitting existing 
infrastructure, would you agree with that?
    Mr. Medina. That is correct, Senator, and that happens 
everywhere, in anything that we have to do. It is cheaper for 
us to eat healthy and maintain our bodies than have a quadruple 
bypass, right? So that is exactly what we are talking about 
here. However, one important thing that we need to keep in mind 
is that we can do things wisely and correctly if we wait for 
the right opportunity. We don't have to spend all these 
millions of dollars ripping up roads. Those roads will come up 
for rehabilitation at some point in their useful lives. That is 
the time when we can say we did things wrong; we have a second 
chance here to do it right; we are going to apply the 
principles that we know now are useful.
    Senator Vitter. And you also mentioned the different 
experience in other countries. I think in many of those cases 
there is a big difference structurally between here and there 
because up there agencies with the authority to come up with 
these solutions are usually the ones paying for it. Here it is 
fundamentally different because the EPA is almost never paying 
for it and, therefore, has no practical limit in terms of the 
sort of mandates and solutions it tries to impose on either 
private owners or local jurisdictions. Isn't that a big 
difference?
    Mr. Medina. That may be so, but the cost still has to be 
borne by somebody. So if we have environmental degradation, 
somebody is going to have to pay for that, whether it is an 
agency or a private landowner. It just doesn't go away. If we 
don't do things right from the beginning, somebody is going to 
have to shell out the dollars or the pound sterling to do that.
    Senator Vitter. And to go back to the distinction between 
completely ripping up or retrofitting an existing 
infrastructure versus when you are building something new, 
certainly I think everybody would agree EPA is seeking more 
authority in this area across the board, not just new projects, 
not just brand new planning, is that correct?
    Mr. Medina. I don't know the details of that. I know that 
from the point of view of a professional, what makes sense from 
the point of view of technical expertise and financial 
soundness is to wait for the right opportunity to do those 
things right.
    Senator Vitter. Thank you.
    Senator Cardin. Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman, and thank you to 
the panel for being here today.
    Mr. Cohen, roadside ditches not only preserve the quality 
of our Nation's roads, but they increase safety, and the 
chairman of our subcommittee referred to safety in his previous 
comments. We all know that those ditches prevent the pooling of 
stormwater on road surfaces; that helps with safety. We are not 
going to see as many accidents with them. In my discussions 
with the Nebraska Department of Roads, it has been brought to 
my attention that conforming to regulations under the proposed 
definition of waters of the United States may preclude these 
best design practices of ditches, and that would compromise 
safety. Can you expand on the impact that this regulation may 
have on public safety with regards to road construction?
    Mr. Cohen. Sure, I would be happy to. In my testimony I 
provided one example, and that is when you are trying to 
engineer a road improvement and you want to add safety features 
to that road, say you have a rural road where there are a lot 
of accidents or you have a bottleneck of some sort and you need 
to add additional safety shoulders or an intersection safety 
improvement, sometimes you have to impact a roadside ditch, and 
often these were manmade ditches that are not representative of 
the original hydrology of the area.
    But under the EPA's proposed rulemaking, they could 
basically claim jurisdiction over that work and stop you from 
doing that safety project until you developed an avoidance plan 
or a mitigation plan, including digging new ditches, which may 
not be necessary after you have added your safety shoulders. So 
that is an example of sort of an absurd outcome, but in my 
experience as an engineering working for the State Highway 
Administration, there are numerous absurd outcomes where you 
have projects that just can't be completed because of this very 
high bar. And there have been cases that I am personally 
involved in where people were getting killed on the road that 
you couldn't improve until you came up with alternatives that 
were so expensive that they basically caused the problem to be 
canceled or indefinitely delayed.
    Senator Fischer. You also mentioned the I view it as a 
problem in the delay in getting that Section 404 permit.
    Mr. Cohen. Yes.
    Senator Fischer. If we are looking at expanding the 
definition of waters of the United States, how is that going to 
affect that permitting process?
    Mr. Cohen. It will certainly make it a longer process and a 
more expensive process.
    Senator Fischer. You say a more expensive process. That 
doesn't just apply to the permitting process itself; it also 
applies to road construction and the added costs that we are 
going to see our highways and bridges costing, correct?
    Mr. Cohen. Correct. Not only the extra cost of meeting the 
demands of the agencies, also the cost of the delay. Every 
project that is delayed for 10 years doubles in cost, 
approximately. And I work for the State of Maryland, which is 
certainly a very progressive, pro-environment State, and wants 
to do the right thing environmentally. As I indicated in my 
testimony, we want to do the right thing environmentally, but 
let's provide the flexibility and tools and the advice and the 
best practices without creating mandates for things that don't 
make sense or aren't the most cost-effective approach. So we 
can do the right thing, but we need to recognize the States are 
doing the best they can and that they want these good outcomes.
    Senator Fischer. Right. And do you think allowances should 
be made for ditches that aren't contributing to the flow in any 
way of navigable waters, our traditional rivers that are out 
there? And, if so, do you think that definition would pass 
judicial muster?
    Mr. Cohen. I think that, as some of the other witnesses 
have said, that commented on this issue, there has been an 
effort here, in my opinion, to stretch the eligibility as far 
as possible to a level that does not meet the intent of the 
court in either of the two major Supreme Court cases on the 404 
regulations. So I think ultimately it will not survive. Also, 
there are Members of Congress that attempted to do the same 
thing through legislation, but that did not have the support of 
Congress, so basically what is happening here is the 
Administration is trying to do it on their own, without 
congressional intent. It is sort of we are going to stretch 
this thing as far as we can, whether or not Congress agrees. So 
I don't think it will pass muster. But I am not a lawyer; these 
two men are lawyers.
    Senator Fischer. I hope we get a second round. I will ask 
them. Thank you, sir.
    Mr. Cohen. Thank you.
    Senator Cardin. We are going to have a second round.
    Let me just make an acknowledgment. I think we all agree 
that we are better off if we can put into the design of our 
transportation systems the storm runoff management. It is less 
costly and that is when it should be done. The challenge is 
that we are where we are in pollutants going into our waters 
today, and there is a responsibility for clean water, so you 
need to deal with the realities that are on the ground, whether 
it is a farming operation or whether it is an old municipal 
wastewater treatment facility plant or whether it is a road 
that was built inappropriately for storm runoff. So it presents 
a challenge, but I think when you have the opportunity, as Mr. 
Medina said, to do the right thing, you should take advantage 
of that, because it is not only going to be good for our 
environment, it will also save us resources in the long run.
    Let me also comment in regards to the definition of waters. 
There is a proposed regulation. Comments are being sought. Many 
thought it was important to have clarification after the 
Supreme Court decisions. There has been difficulty in getting 
bills passed here in the U.S. Congress. I would urge people to 
take advantage of the comment period, because it is my 
understanding that manmade ditches are exempt from this 
definition. But, again, if that needs clarification, let's talk 
about it, because I didn't think that was under the regulation.
    Mr. Mather, I want to ask you, since Oregon has been 
successful politically in moving forward on many of these 
projects from the beginning, it seems to me that you have 
crossed the political hurdle of choosing to do things that are 
friendlier toward the environment, even though it may affect 
the timing of transportation projects in your State. How is the 
politics of trying to move forward in these areas?
    Mr. Mather. Chairman Cardin, I will probably not talk too 
much about the politics, but more talk about our agency and how 
we have implemented some of those projects. As I talked about, 
the legislature in our State passed actually two major funding 
bills in the last 10 years which have increased the amount of 
investment that we have made in transportation, and those have 
provided challenges for us, but also opportunities for us. One 
of those opportunities was to sit down with the regulatory 
agencies and really work on streamlining our processes to the 
benefit of both agencies, to them and for us. We are spending 
less money on the regulations, less money going through the 
process, and more money out on product on the ground. One of 
those programs our legislature passed was a $1.3 billion 
investment in bridges, 365 bridges throughout the State. We are 
just completing that 10-year program on time and on budget. One 
of the keys to that was the permitting process that we 
developed. We estimated that if we had not used our 
streamlining process, it would have cost us $70 million more to 
go through the permitting process for those 365 bridges and we 
would not have completed the project on time. So those $70 
million are reinvested back into transportation, and that is 
really the win for us in transportation. The win on the 
environmental side is we have increased water quality.
    Senator Cardin. Very good.
    To Mr. Cohen and Mr. Monette, you made a very interesting 
suggestion, and that is that the funding sources for doing 
this, we should be a little more creative. You also made a 
point that I agree completely, about regional differences and 
the flexibility of doing what is most cost-effective based upon 
your local needs, and we have to build that into whatever 
system we have for either funding or for the regulatory system. 
I agree with you on both points.
    It is very interesting. Talking about the Chesapeake Bay 
watershed for one moment, which I am pretty familiar with, we 
do have special funding to deal with the two other major 
sources of pollutants; we do for our farmers and we do for our 
treatment facility plants. We don't really for stormwater 
runoff. There is really no special program out there that helps 
deal with the unique needs of pollutants coming into the 
watershed through stormwater.
    So do you have any further insight or suggestions as to how 
we could perhaps deal with the funding outside of the 
transportation itself to deal with stormwater runoff?
    Mr. Cohen. I guess, Mr. Chairman, that is exactly what my 
recommendation, my No. 1 option would be in my testimony. Sort 
of the discussion that just occurred between the ranking member 
and Dr. Medina, when you have to pay for these improvements, I 
think the desire to make them as cost-effective as possible 
makes a lot of sense. And if Congress were to authorize for 
appropriations some money to do these restoration projects, 
including coordinate with the transportation departments, say 
Maryland Department of Environment would coordinate with SHA 
using money authorized by Congress specifically for water 
restoration efforts, that would be a good thing. What I think 
would be a bad thing would be if you take it out of the highway 
funding, basically. The highway funding that comes from the 
Highway Trust Fund. What I would suggest is an authorization of 
appropriations for environmental agencies to do that. So they 
are both working toward important goals and they are not 
competing with each other for funding.
    Senator Cardin. Mr. Monette.
    Mr. Monette. Thank you, Senator Cardin. I would agree with 
Mr. Cohen on the funding issue. I would just caution that we 
want to be very careful about any requirements coming from the 
Federal Government that would mandate specific practices or 
infiltration standards on an across-the-board manner because, 
again, the hydrologic conditions vary.
    Also, I would like to reiterate the fact that if local 
governments are stuck with these costs, it is a tremendous 
burden for them. Many States have funding issues and funding 
restrictions that prevent local governments from imposing taxes 
or raising fees, and that doesn't seem to matter to certain 
Federal agencies, including the EPA, when they impose these 
restrictions. So it is very helpful if there could be block 
funding or basically the idea that if the Federal Government is 
going to impose these requirements, that it provides the 
funding to do so.
    Senator Cardin. Thank you.
    Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    Mr. Monette, in your testimony you talked about irrigation 
ditches, correct?
    Mr. Monette. That is correct.
    Senator Fischer. And how would the proposed rule affect 
those irrigation ditches that are currently exempted under 
Section 404?
    Mr. Monette. Certain irrigation ditches are currently 
exempt, and some of those should remain exempt. What----
    Senator Fischer. How about the ditches where farmers 
transport water throughout their field?
    Mr. Monette. And that is something that could fall under 
regulation under EPA's proposal, especially if the irrigation 
ditches conveyed more than just irrigation return flows; if 
there is septic discharges into the channel, things like that. 
Any other kind of waste discharge into that channel converts it 
from being an irrigation return flow into another kind of water 
body that is subject to regulation by EPA. And EPA is reaching 
with this rule not just to those kinds of ditches, but to any 
ditch that has perennial flow.
    Senator Cardin, you mentioned your belief that ditches were 
exempt, and that is not the case. Ditches with perennial flow--
and most ditches across the Country are going to have perennial 
flow. Even in Southern California there is a lot of return 
flows from irrigation from yards.
    Senator Cardin. I won't count this against Senator 
Fischer's time.
    My understanding is if you construct the ditch as part of a 
road construction, that is not part of the proposed regulation.
    Mr. Monette. That is incorrect, Senator. Under the proposed 
rule, ditches that are constructed and have perennial flow that 
contribute to discharge downstream at some point to a 
traditional navigable water----
    Senator Cardin. We will check it out. My understanding is 
manmade ditches are excluded. So we will have to take a look at 
it, and maybe we can join together in a comment.
    Mr. Monette. Thank you.
    Senator Cardin. Senator Fischer.
    Senator Fischer. Thank you.
    So when we look at these irrigation ditches and they are 
affected, I believe too, can you give me your opinion how that 
is going to affect the family farmer?
    Mr. Monette. It could be a major impact.
    Senator Fischer. How so?
    Mr. Monette. First of all, if irrigation ditches and 
ditches on an individual property are considered waters of the 
United States, any kind of work or uses of the land adjacent to 
that ditch and the ditch are going to require a 404 permit from 
the Army Corps of Engineers.
    Senator Fischer. What would the cost be for a family farmer 
to get one of those permits who has a small, average farm? What 
would be the cost dollarwise? What would the cost time wise? I 
know what it is for transportation and for our State Department 
of Roads. How does that affect an individual?
    Mr. Monette. For an individual farmer, again, if it was 
falling under the jurisdiction, if the channel was a water of 
the United States, it could be tens of thousands of dollars and 
could take years to get that approval, and I think that is on 
the low end. We have seen them in hundreds of thousands of 
dollars for relatively small projects for parks, for instance. 
So that is not an unreasonable estimate by any means.
    Senator Fischer. Right. And road builders, they already 
operate under construction stormwater permits, right?
    Mr. Monette. That is correct.
    Senator Fischer. And that is Section 402 of the Clean Water 
Act, isn't that correct?
    Mr. Monette. That is correct.
    Senator Fischer. So if ditches are going to be regulated as 
waters of the U.S., would you expect at some point that these 
ditches are going to have water quality issues?
    Mr. Monette. Yes, I would.
    Senator Fischer. Are they going to have standards that they 
have to meet?
    Mr. Monette. Yes, they will. They will have to meet the 
water quality standards that are designated for that State.
    Senator Fischer. And how costly is it going to be if 
roadside ditches are required to achieve the Clean Water Act's 
default standard, that it is fishable and swimmable?
    Mr. Monette. I can't estimate. What I would refer the 
committee to are the estimates that were proposed for 
compliance with a bacteria standard for the Los Angeles area, 
and that was in the hundreds of billions of dollars.
    Senator Fischer. Do we see a lot of fishing in roadside 
ditches? We don't in Nebraska. Where are you from?
    Mr. Monette. I am from Southern California, and, no, we 
typically don't see that.
    Senator Fischer. Do you see a lot of swimming?
    Mr. Monette. No. Usually they are fenced and you are not 
supposed to go in there.
    Senator Fischer. Do you think maybe part of this rule is 
not a lot of common sense put into it?
    Mr. Monette. It would seem to me that, yes, this is a 
little bit excessive and reaching the edges of EPA's authority 
under the Clean Water Act and the court decisions.
    Senator Fischer. OK, thank you.
    May I ask another question? Thank you.
    Mr. Cuccinelli, if we see that these ditches are treated as 
waters of the United States, what do you foresee are going to 
be the Federal regulatory hurdles to be for the States and for 
localities who wish to build roads?
    Mr. Cuccinelli. First of all, you need to understand the 
tactics they employ. They judge every project, good or bad, 
good or evil, from their perspective, and if it falls in the 
evil category, their tactic is to stall, it is to wait. And Mr. 
Monette's example of the family farmer, the tens of thousands 
of dollars hurt, but you hold them in place for years and you 
can literally wipe them out; and that is their intent. That 
tactic is being used across the board. It is being used all 
over the place.
    Senator Fischer. Well, I don't know----
    Mr. Cuccinelli. And it is awfully hard to fight the Federal 
Government.
    Senator Fischer. If I can interrupt you, I am not here to 
judge the intent of the agency, but I am just curious on any 
rules that you may see in the future that could impact a State 
or a locality with regards to road building.
    Mr. Cuccinelli. Well, one of the things that hasn't been 
mentioned is that if ditches start to not only get swept into 
this rule, but there is a question whether or not they may be 
swept into this rule, you will see local governments and State 
governments start to change and cancel projects. They will 
avoid this type of regulation in the way we do now. For 
instance, if $500 million of Federal money is coming for roads, 
we pile it into as few projects as possible so that we are 
captured by as few Federal regulatory nets as possible, because 
they bring projects to a screeching halt, they drive budgets 
far beyond planning estimates, and they kill projects using 
regulatory means. Whether they intend to or not, that is the 
result.
    Senator Fischer. Thank you.
    Thank you all very much.
    Thank you, Mr. Chair.
    Senator Cardin. Let me thank all seven of you again and let 
me just point out what I think is the obvious. The Clean Water 
Act was passed by Democrats and Republicans in Congress because 
of the importance of clean water; clean water to our public 
health, clean water to our way of life, clean water to what we 
believe is a responsibility to future generations. And we have 
a responsibility to make sure that is carried out. EPA is the 
agency responsible to make sure that in fact occurs.
    Just talking parochially once again about the Chesapeake 
Bay, it is not only iconically important to people who live in 
the watershed, it is a $1 trillion economic impact, and if the 
health of the Bay suffers, the economic impact of our region 
suffers dramatically. And, yes, we want to make sure that we 
have the transportation infrastructure for the convenience of 
our public. We live in a very congested area of the Country 
here, in Washington particularly. I experience it every day, 
twice a day.
    So we certainly want to be mindful that we need to have 
decisions made, and we also have to have predictability. I 
enjoyed the exchange on the definitions of water. One thing is 
clear to me on any one I have talked to, whether it is someone 
who is strongly advocating for different types of regulations 
or less regulations, or those who want stronger regulations, 
they like to know what they are; and the Supreme Court decision 
has made some major question marks. So I think it is a 
responsibility of the Obama administration and a responsibility 
of Congress to give the proper direction so that you know what 
is expected so you can make those judgments as to whether this 
project makes sense or doesn't make sense with the conflicting 
interest of needs for transportation versus the 
responsibilities we have for clean water and the environment.
    I think that is a reasonable request and the responsibility 
rests on the Members of Congress and the Administration. That 
is another reason why we need to work together. I found the 
exchange to be extremely helpful on all of these subjects, but 
it leads me to the clear conclusion that this committee that 
has responsibility for authorizing how we prioritize 
infrastructure in this Country, it is in our interest to do it 
early, rather than late, in the planning stages to deal with 
these problems and not to say, well, let's do it on the cheap 
and let a future Congress worry about the consequences of our 
decisions. So let's make our investments wisely, mindful of our 
responsibilities to both the environment and to our 
infrastructure.
    With that, let me thank you once again, and with that the 
committee will stand adjourned.
    [Whereupon, at 4:22 p.m. the committee was adjourned.]

             Statement of Hon. John Boozman, U.S. Senator 
                       from the State of Arkansas

    Chairman Cardin, I enjoy serving with you on the Water and 
Wildlife Subcommittee, and I look forward to reviewing the 
testimony from today's hearing on highway stormwater runoff. 
Regretfully, I am unable to attend, as I am in Arkansas, 
recovering from a recent surgery. As always, I appreciate 
opportunities to work with you and all members of our Committee 
to find common ground and promote solutions to our country's 
challenges.
    I also want to thank Senator Vitter for his assistance with 
today's hearing. And, as always, I appreciate the work of the 
EPW Committee staff, and in particular Laura Atcheson, Brandon 
Middleton, and Bryan Zumwalt, each of whom assisted in 
preparation for this hearing.
    I share the view of our witnesses that thoughtful design 
and construction of roads can be used to mitigate environmental 
impacts or, in some cases, even produce environmental benefits. 
Without question, reducing the possible negative impacts of 
stormwater runoff is a worthwhile goal. At the same time, we 
must be smart and recognize the many other goals and priorities 
in highway construction, such as expanding economic 
opportunity, jobs, and commerce, improving citizens' quality of 
life, and reducing traffic-related deaths and injuries. Also, 
as the Federal Government continues to irresponsibly borrow 
more than a billion dollars each and every day--money that 
citizens will have to repay in high taxes--we must also be 
careful to set wise and appropriate priorities.
    One of today's witnesses shared a general concern in 
written testimony about the ``unintended consequences of 
exacerbating our highway funding challenges and slowing down 
project approvals.'' I agree, and that's why flexibility for 
states and communities is so important. Our states, county 
officials, and mayors must be able to build good projects 
quickly and affordably. Reducing the possible impacts of 
stormwater runoff is important, but local conditions and 
resources must be considered as the scope of such efforts is 
determined. A one-size-fits-all approach, dictated from 
Congress, would be a mistake.
    I also share the concerns, voiced by some, regarding the 
EPA's recent water regulation power-grab proposal. This EPA 
power-grab will hurt our farmers, families, and small 
businesses. And today's hearing illustrates that this scheme, 
in an attempt to regulate water adjacent to roadways, could 
even reduce safety, increasing the risk of highway deaths and 
injuries. Specifically, I am concerned that as the EPA begins 
to regulate highway ditches, it will become more difficult for 
transportation departments to make safety-improvements on 
existing roads and highways.
    We need to be thoughtful and cautious about our 
responsibilities related to these very important issues. There 
are constitutional and practical limits to the role that the 
Federal Government can and should play. We simply must ensure 
that important decisions impacting road construction, highway 
safety, and environmental protection are locally driven, where 
the voices of the people most directly impacted will be heard.
    Again, I look forward to reviewing the testimony and the 
record of today's hearing. Thank you.

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