[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
THE PRESIDENT'S 2016 FISCAL YEAR BUDGET: ADMINISTRATION PRIORITIES FOR
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
=======================================================================
(114-9)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MARCH 18, 2015
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
BILL SHUSTER, Pennsylvania, Chairman
DON YOUNG, Alaska PETER A. DeFAZIO, Oregon
JOHN J. DUNCAN, Jr., Tennessee, ELEANOR HOLMES NORTON, District of
Vice Chair Columbia
JOHN L. MICA, Florida JERROLD NADLER, New York
FRANK A. LoBIONDO, New Jersey CORRINE BROWN, Florida
SAM GRAVES, Missouri EDDIE BERNICE JOHNSON, Texas
CANDICE S. MILLER, Michigan ELIJAH E. CUMMINGS, Maryland
DUNCAN HUNTER, California RICK LARSEN, Washington
ERIC A. ``RICK'' CRAWFORD, Arkansas MICHAEL E. CAPUANO, Massachusetts
LOU BARLETTA, Pennsylvania GRACE F. NAPOLITANO, California
BLAKE FARENTHOLD, Texas DANIEL LIPINSKI, Illinois
BOB GIBBS, Ohio STEVE COHEN, Tennessee
RICHARD L. HANNA, New York ALBIO SIRES, New Jersey
DANIEL WEBSTER, Florida DONNA F. EDWARDS, Maryland
JEFF DENHAM, California JOHN GARAMENDI, California
REID J. RIBBLE, Wisconsin ANDRE CARSON, Indiana
THOMAS MASSIE, Kentucky JANICE HAHN, California
TOM RICE, South Carolina RICHARD M. NOLAN, Minnesota
MARK MEADOWS, North Carolina ANN KIRKPATRICK, Arizona
SCOTT PERRY, Pennsylvania DINA TITUS, Nevada
RODNEY DAVIS, Illinois SEAN PATRICK MALONEY, New York
MARK SANFORD, South Carolina ELIZABETH H. ESTY, Connecticut
ROB WOODALL, Georgia LOIS FRANKEL, Florida
TODD ROKITA, Indiana CHERI BUSTOS, Illinois
JOHN KATKO, New York JARED HUFFMAN, California
BRIAN BABIN, Texas JULIA BROWNLEY, California
CRESENT HARDY, Nevada
RYAN A. COSTELLO, Pennsylvania
GARRET GRAVES, Louisiana
MIMI WALTERS, California
BARBARA COMSTOCK, Virginia
CARLOS CURBELO, Florida
DAVID ROUZER, North Carolina
LEE M. ZELDIN, New York
(ii)
Subcommittee on Water Resources and Environment
BOB GIBBS, Ohio, Chairman
CANDICE S. MILLER, Michigan GRACE F. NAPOLITANO, California
DUNCAN HUNTER, California DONNA F. EDWARDS, Maryland
ERIC A. ``RICK'' CRAWFORD, Arkansas JOHN GARAMENDI, California
DANIEL WEBSTER, Florida LOIS FRANKEL, Florida
JEFF DENHAM, California JARED HUFFMAN, California
REID J. RIBBLE, Wisconsin EDDIE BERNICE JOHNSON, Texas
THOMAS MASSIE, Kentucky ANN KIRKPATRICK, Arizona
TOM RICE, South Carolina DINA TITUS, Nevada
RODNEY DAVIS, Illinois SEAN PATRICK MALONEY, New York
MARK SANFORD, South Carolina ELIZABETH H. ESTY, Connecticut
TODD ROKITA, Indiana ELEANOR HOLMES NORTON, District of
JOHN KATKO, New York Columbia
BRIAN BABIN, Texas RICHARD M. NOLAN, Minnesota
CRESENT HARDY, Nevada PETER A. DeFAZIO, Oregon (Ex
GARRET GRAVES, Louisiana Officio)
DAVID ROUZER, North Carolina
BILL SHUSTER, Pennsylvania (Ex
Officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vi
WITNESSES
Kenneth J. Kopocis, Deputy Assistant Administrator, Office of
Water, U.S. Environmental Protection Agency:
Testimony.................................................... 5
Prepared statement........................................... 48
Responses to questions for the record from the following
Representatives:
Hon. Bob Gibbs of Ohio................................... 51
Hon. Duncan Hunter of California......................... 60
Hon. Mathy Stanislaus, Assistant Administrator, Office of Solid
Waste and Emergency Response, U.S. Environmental Protection
Agency:
Testimony.................................................... 5
Prepared statement........................................... 63
Responses to questions for the record from Hon. Bob Gibbs, a
Representative in Congress from the State of Ohio.......... 74
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
THE PRESIDENT'S 2016 FISCAL YEAR BUDGET: ADMINISTRATION PRIORITIES FOR
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
----------
WEDNESDAY, MARCH 18, 2015
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:36 a.m. in
Room 2167, Rayburn House Office Building, Hon. Bob Gibbs
(Chairman of the subcommittee) presiding.
Mr. Gibbs. Good morning. The Subcommittee on Water
Resources and Environment of the Committee on Transportation
and Infrastructure will come to order.
Unanimous consent request. I ask unanimous consent that the
hearing record be kept open for 30 days after this hearing in
order to accept other submissions of written testimony for the
hearing record.
[No response.]
Mr. Gibbs. Hearing no objection, so ordered.
Today we have the hearing dealing with the President's
budget for EPA and water. And we have Mr. Ken Kopocis?
Mr. Kopocis. It is Kopocis.
Mr. Gibbs. Kopocis. OK.
Mr. Kopocis. Thank you.
Mr. Gibbs. He is the Deputy Assistant Administrator, Office
of Water. And I think--congratulations. I think you are fairly
new in the position.
Mr. Kopocis. In this capacity. Yes, sir. Since last August.
Mr. Gibbs. Congratulations. And then also, Mr. Mathy
Stanislaus?
Mr. Stanislaus. It is Mathy Stanislaus.
Mr. Gibbs. Stanislaus. You guys have to get easier names
for me, I will tell you.
[Laughter.]
Mr. Gibbs. He is the Assistant Administrator, the Office of
Solid Waste and Emergency Response to the U.S. EPA.
We will start--my opening statement. This is the hearing
for ``The President's 2016 Fiscal Year Budget: Administration
Priorities for the U.S. Environmental Protection Agency.''
Again, I would like to welcome everyone to the hearing today.
When Congress wrote the Clean Water Act and other Federal
environmental statutes some 40 years ago, it envisioned the
Federal Government and the States would be equal partners in
solving the Nation's environmental problems. For many years the
Federal-State partnership has worked well. However, in the past
few years, we have seen a change in the approach taken by the
Environmental Protection Agency that may undermine the balance
between the Federal and State partnership that has long
existed.
EPA is now taking away the flexibility that States and
local governments need to address their environmental issues.
EPA is aggressively moving forward simultaneously on several
regulatory fronts, with the result that the States and local
governments, as well as the private regulated community, are
facing increasing regulatory, enforcement, and financial
pressures to address a multitude of burdensome regulatory
requirements that recently have become EPA priorities.
I am particularly concerned about EPA's proposed waters of
the United States rule. This proposed rule will substantially
increase the regulatory burdens for States, local governments,
and businesses, especially small businesses. This proposed rule
is on top of the other unfunded mandates advanced by the EPA,
with the result that many local communities and private
entities are now increasingly struggling for how to pay for
complying with these mandates. EPA's aggressive actions have
created financial pressures and regulatory uncertainty for
States, local governments, and the regulated community, and
have had a chilling effect on the Nation's economy and job
creation.
The EPA budget put forth from the administration for fiscal
year 2016 does nothing to alleviate my concerns. While the EPA
is imposing more unfunded regulatory burdens on communities,
businesses, and citizens, the administration is calling for a
reduction in spending for programs that assist communities in
their efforts to come into compliance with those regulations,
like the Clean Water State Revolving Fund, the SRF program.
Sadly, not only is the EPA adding to the burden of rules
and regulations and reducing programs to help State and local
government come into compliance, but the EPA is also putting
more boots on the ground to track down those who have
difficulty coming into compliance, with questionable benefits
to the environment.
We all want clean water. However, we also need to have a
strong economy so we can make the investments that new
regulations require. We need EPA, as the partner agency, to
work to restoring its trust with State and local governments.
Today is not the day to impose new burdens on the American
people. We need to help people come into compliance with the
multitude of regulations we already have, and make significant
progress in developing and creating long-term jobs and a
stronger economy before we can tolerate more expensive
regulations.
I now recognize my ranking member, Mrs. Napolitano, for any
remarks she may have.
Mrs. Napolitano. Thank you, Mr. Chairman, for calling this
first hearing of the Subcommittee on Water Resources and
Environment for the 114th Congress. And I would welcome--but he
is not here yet--Congressman Jared Huffman, California's Second
Congressional District, the newest Democratic member on the
subcommittee--both have background on the Committee on Natural
Resources--and is the ranking member of the Subcommittee on
Water, Power and Oceans of the Committee on Natural Resources.
So we will be working with him on issues that we may overlap.
And I do look forward to working together on water issues.
Mr. Chairman, this is my first hearing at the Subcommittee
on Water Resources and Environment as ranking member. And thank
you for your efforts in welcoming me to the subcommittee, and
for your offer to work collaboratively with our side of the
aisle on some issues, including those related to infrastructure
investment and implementation of WRRDA. While I do not expect
that we will always agree--and I say that laughingly--I do look
forward to building a strong and transparent working
relationship with you and all of the members of this
subcommittee. The American people want us to continue the
bipartisan traditions of this subcommittee to accomplish tasks
that our constituents have sent us here to do, to address the
water resources challenges facing our Nation.
One of the greatest challenges facing us today is crumbling
infrastructure. Over the years we have spoken to, listened to,
countless mayors, city and county officials, stakeholders, on
the issues to discuss water-related challenges in all of our
communities, and about the lack of attention, or the lack of
progress, if you will, in addressing these challenges.
Unfortunately, much of the lack of progress can be traced to
the slow and steady decline in Federal investment to critical
water-related infrastructure, which is a good segue to today's
hearing on the Environmental Protection Agency's 2016 budget
request.
Very few Federal agencies are as praised or as vilified as
EPA. It depends on which side of the fence you are on.
Depending on your point of view, this agency--created by a
Republican administration, and charged by Congress with
safeguarding the health of the public and of the environment--
is often portrayed either as the last safeguard of our natural
environment, or as an overzealous impediment to unfettered
industrial growth.
Well, I tell you, if it is industrial growth versus our
people and our environment, I will tell you where I come from.
I suppose the reality is somewhere in the middle, where
this agency makes a concerted effort in reaching a sustainable
balance between the health of the public, the health of the
environment, and the health of the economy, while working with
Congress to be effective in attaining these mutual goals. We
must agree on the need to balance healthy, economic growth
while protecting the health of the public and of the
environment for generations to come.
In my own district the health of our communities and our
economies is integrally tied to the health and availability of
the natural resources, and specifically, the availability of
clean, safe drinking water. Unfortunately, ensuring this
careful balance will all but be impossible if EPA must face
budgetary cuts called for in the recent House Republican budget
resolutions.
Back in 2011, Congress approved the Budget Control Act that
drastically underfunded the discretionary budget authority of
the Federal Government, including EPA. I voted against the
Budget Control Act because of its devastating cuts to both
mandatory and discretionary programs relied upon by our
Nation's seniors, our cities, our communities, and by our
constituency. Yet, last year, the House Republican majority
voted to approve a budget which calls for even greater cuts to
these programs, jeopardizing our Nation's economic recovery,
attacking our Nation's efforts to promote a global economy, and
undermining efforts to create additional good-paying jobs in
the U.S.
According to a summary of the budget from 2016, this House
majority is urging a drastic reduction in nondefense
discretionary spending over the next 10 years, cut by $1.3
trillion, or 24 percent below the amount, just to keep pace
with the inflation. In fiscal year 2024 alone, the House budget
would be 30 percent below the amount necessary simply to keep
pace with the fiscal year 2014 spending budget.
Let's not forget these cuts come at a time when we should
increase investment in our crumbling infrastructure. For
example, according to EPA's most recent assessment, our States
need approximately $300 billion--with a B--for wastewater and
stormwater systems over the next 20 years. Without question,
such a draconian proposal would have a devastating impact on
our agency's ability to carry out statutory obligations.
As witnesses later will testify, the agency had to
prioritize how to spend its declining resources, and has had to
make tough choices in not funding programs and policies that
are important to our business, to our industries, to our
communities, and to our Nation. If cuts called for in the
Budget Control Act are allowed to continue or, worse, to
deepen, as proposed in this budget, there will be consequences
in the ability of EPA to meet statutory obligations, causing
unintended and possibly intended consequences.
If the cuts called for in the 2015 Republican budget are
implemented, it will impair EPA's ability to respond to
industrial spills and other contamination outbreaks that
threaten local drinking water, such as recently occurred in
North Carolina and Indiana and Ohio and Montana and West
Virginia. It is up to the taxpayer to bear the cost of the
cleanup.
In all of these instances, EPA officials will provide
critical expertise to minimize the extent of the contamination,
and to restore local drinking water supplies as quickly as
possible.
Similarly, this subcommittee has heard testimony of a
number of businesses and industries that rely on Federal
regulatory agencies for Clean Water Act permits, and their
concern with the complexity and delays in obtaining these
permits. However, under the budget recommended by the House
majority, both the regulatory office of the Corps and permits
division of EPA would face potential significant budget cuts.
Result would be it would take longer, because of the
underfunded staff.
Further, if these discretionary spending cuts are
implemented uniformly, we would expect continued cuts to other
programs with widespread support for our communities, such as
the Clean Water and Drinking Water State Revolving Funds, the
Superfund cleanup, the Brownfields remediation, and we can go
on and on.
And I would just like to say that I have heard others say
that cutting the EPA budget will not have an adverse impact on
the environment because decreases in Federal protection of the
environment will be more than made up by the States. I got news
for you. To the best of my knowledge, not the case. States are
asking for more support because of the serious budget cuts they
face.
Last Congress, GAO identified several States where cuts to
the Federal environmental grant programs will result in
reductions to State environmental staffing, cutting less
critical programs and increasing State fees. The list goes on.
In conclusion, if Members are planning to question this
administration's commitment to addressing the environmental
challenges facing our Nation, perhaps we first should look in
the mirror and ask whether this Congress is meeting our
commitment to the environmental--to our business, in terms of
providing critical resources necessary for its protection for
the sustained health of our populations and of our future
economies.
In short, I believe the answer is no. And I fear that we
will soon see the consequences of a lack of physical foresight
through continued crumbling water infrastructure, declining
environmental quality, and, worse still, handing our children,
our great-grandchild, and their progeny, a world of a less--on
a less environmental sustainable path than we have inherited.
So, thank you, Mr. Chairman, and I look forward to this
hearing.
Mr. Gibbs. Thank you. I also look forward to working with
you in the full subcommittee on the implementation of WRRDA. We
are going to have some hearings on that. And it is a very
strong bipartisan bill. And we need to make sure that works
forward.
At this time, Mr. Kopocis, the floor is yours, and we
welcome you.
TESTIMONY OF KENNETH J. KOPOCIS, DEPUTY ASSISTANT
ADMINISTRATOR, OFFICE OF WATER, U.S. ENVIRONMENTAL PROTECTION
AGENCY, AND HON. MATHY STANISLAUS, ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Kopocis. Thank you. And good morning, Chairman Gibbs
and Ranking Member Napolitano, and all the members of the
subcommittee.
As the chairman said, my name is Ken Kopocis, and I am
currently serving as the Deputy Assistant Administrator in
EPA's Office of Water. Thank you for the opportunity to be here
today to discuss the President's 2016 budget request for EPA's
National Water Program.
The President's budget request reflects EPA's longstanding
efforts to protect the Nation's water, both at the tap and in
the environment, and to identify new approaches and
partnerships to make and sustain improvements in public health
and the environment. The requested level of $3.7 billion allows
the National Water Program to continue to support communities,
improve infrastructure, drive innovation, spur technology,
increase sustainability, and strengthen partnerships, in
particular, with our States, tribes, and local governments. In
fact, 78 percent of our budget request transfers directly to
States and tribes.
A significant way that we do this is through the Clean
Water and Drinking Water State Revolving Funds. These funds
provide critical support to States to improve their water and
wastewater drinking--and drinking water infrastructure, and to
reduce water pollution and public health threats. The fiscal
year 2016 request is for a total of $2.3 billion for the two
SRFs, $1.116 billion for clean water, and $1.1186 billion for
the Drinking Water SRF.
Additionally, in fiscal year 2016 we have included $50
million to enhance the capacity of communities and States to
plan and finance drinking water and wastewater infrastructure
improvements. We will work with States and communities to
promote innovative practices that advance water system and
community resiliency and sustainability. We want to build
technical, managerial, and financial capabilities of systems to
promote a healthy and effective network of infrastructure
investments.
The Water Infrastructure Finance and Innovation Act of
2014, which this committee, of course, gave us in the Water
Resources Reform and Development Act of 2014, authorizes an
innovative financing mechanism for water-related infrastructure
of national or regional significance, and authorizes us, for
the first time, to provide direct Federal credit assistance to
eligible entities. Our fiscal year 2016 budget includes a
request of $5 million to lay the groundwork to initiate that
program, in addition to the existing State Revolving Fund
programs WIFIA would provide yet another source of capital to
communities to meet their water infrastructure needs.
In January of this year the agency announced a key
component of the administration's Build America initiative: the
Water Infrastructure and Resiliency Financing Center, which we
just call the financing center. Build America is a
governmentwide effort to increase infrastructure investment and
promote economic growth by creating opportunities for State and
local governments and the private sector to collaborate on
infrastructure development.
The finance center at EPA will help communities across the
country plan for future investments in infrastructure, assist
in identifying financing opportunities for resilient drinking
water, wastewater, and stormwater. The center will enhance our
partnership and collaboration with the U.S. Department of
Agriculture on training, technical assistance, and funding,
particularly in rural areas. And we are also collaborating with
our colleagues at the Departments of Treasury, Housing and
Urban Development, and Commerce.
Protecting the Nation's waters remains a top priority for
the EPA. We will continue to build upon decades of effort to
ensure our waterways are clean, and our drinking water is safe.
Water pollution endangers wildlife, compromises the safety and
reliability of our drinking water sources and our treatment
plants, and threatens the waters where we swim and fish.
Beginning later in this year, and into fiscal year 2016, we
will begin implementation of the Clean Water Rule, which will
clarify types of waters covered by the Clean Water Act, and
will foster more certain and efficient decisions to protect the
Nation's waters. And I expect that we may have an opportunity
to discuss that more later today.
Supporting our State and tribal partners, the primary
implementers of our environmental programs, remains a priority.
The overall proposed funding levels for tribes has increased by
8.8 percent over the fiscal year 2015 enacted levels, and we
are requesting at least $50 million be made available through
the SRF to support tribes.
The President's request also includes increases to key
categorical grants that are of significant importance to
States, such as a $5.7 million increase to a total of $165
million for the section 319 nonpoint source program, and an
increase of $18.3 million to $249 million for our section 106
pollution control grants that the States use to operate their
programs.
In addition, we are requesting over $370 million to
continue our important regional programs around the country to
complement our national programs.
So, thank you, Chairman Gibbs, Ranking Member Napolitano,
and members of the subcommittee, for the opportunity to be here
today. The President's budget reflects EPA's continuing efforts
to improve water quality and public health, in partnership with
the States. And I look forward to continuing our work with the
subcommittee to ensure clean and safe America for--water for
all Americans where we live, work, and play. Thank you.
Mr. Gibbs. Thank you.
Mr. Stanislaus, the floor is yours, and welcome.
Mr. Stanislaus. Thank you. Good morning, Chairman Gibbs,
Ranking Member Napolitano, and members of the subcommittee. I
am Mathy Stanislaus, U.S. EPA Assistant Administrator for the
Office of Solid Waste and Emergency Response. And thank you for
the opportunity to discuss the President's fiscal year 2016
budget for EPA's land cleanup and prevention programs under the
subcommittee's jurisdiction.
EPA's land cleanup programs regularly work with communities
across America, cleaning up Superfund sites, responding to
emergencies, and assisting tribes, States, and local
governments in cleaning up and redeveloping Brownfields
properties in hundreds of thousands of communities across the
country, covering 541,000 sites, and almost 23 million acres.
Our program makes a difference by protecting local
communities through the cleanup of contaminated sites, and by
responding to hazardous spills and releases; by supporting
State and local emergency planners and responders to prepare
for spills, releases, and other hazardous incidents; providing
grants and tools to local communities to generate economic
opportunity and job creation; by supporting the development and
beneficial reuse of formerly contaminated properties,
particularly in underserved and economically distressed
communities; and helping to support new job-generating
manufacturing investments in an environmentally responsible
way.
The President's fiscal year 2016 budget proposes a nearly
$36 million increase for Brownfields programs from the fiscal
year 2015-enacted levels. EPA's Brownfields program will use
this funding to successfully leverage economic investments. And
the Brownfields sites are located in downtowns of America,
often the economic engines for communities. And we believe the
best place for future economic redevelopment--to take advantage
of the existing assets, existing infrastructure, and to
maximize the markets that surround these properties.
On average, EPA's grant programs leverage $18 of every $1
that EPA puts into a grant by leveraging private and public
funding. In addition, more than seven jobs are leveraged for
every $100,000 in grants. EPA has found that residential
property values increase 5 to 12 percent, once a nearby
Brownfields property is assessed and cleaned up.
In fiscal year 2014, the Brownfields program was only able
to fund 266 of the 823 grant applications, which represents
only 30 percent of the grant requests. We believe this
increment will enable EPA to fund an additional 140
communities, with each of these dollars leveraging, again, $18
of additional investment, along with the alignment of other
Federal and State resources.
Superfund sites are located in more than 1,000 communities
across the country. Approximately 49 million people live within
3 miles of a proposed final listed Superfund site. Residents in
communities located near Superfund sites are economically
distressed from the loss of economic activity at the Superfund
sites, as well as the public health consequence. EPA's budget
request to the Superfund program represents a $65 million
increase from the fiscal year 2015 enacted levels.
Our study shows that early intervention at Superfund sites
avoids disease, including reduction of child blood lead levels.
Recent studies show that the incidents of birth defects do, in
fact, go down by early intervention in the cleanup of Superfund
sites.
Superfund sites also create job opportunities. A recent
study of 450 Superfund sites shows that cleanup and
redevelopment has resulted in over 3,500 businesses located on
these sites generating annual sales of about $31 billion, and
employing more than 89,000 people who are earning a combined
income of $6 million.
The $43.7 million in Superfund increase and Superfund
remedial program will enable us to deal with the backlog of
Superfund sites, enabling these communities to receive the
similar kinds of benefits. And we project up to 10 communities,
additional communities, will be funded by this increase in
resources.
Lastly, EPA's oil spill program. We are requesting a $4.1
million increase for the oil spill program to help EPA work
with State and local responders to expand its prevention and
preparedness activities. There are approximately 20,000 oil
spills reported every year, and EPA evaluates 13,000 spills.
These spills have a tremendous impact on local economies, on
local waterways, on drinking water. Every investment in
prevention is an avoided damage to local communities.
With that, I will look forward to your questions. Thank
you.
Mr. Gibbs. Thank you. I will start the first round of
questions.
Mr. Kopocis, on the proposed rule, I noticed Administrator
McCarthy was talking to a farm group earlier this week. I think
she--I will paraphrase--said that maybe they weren't
acknowledging the issue as well, or a better perception, and
she doesn't want to call it--I noticed in your testimony you
call it the Clean Water Rule.
This is an easy question, it is either yes or no. I know
with all the 34 States writing comments in opposition to the
rule, and all kinds of entities, from farm groups to
contractors to real estate developers all across the board--
just a simple yes or no--has the EPA recently either hired,
consulted, or contracted with an outside public relations firm?
Mr. Kopocis. No. No, we have not.
Mr. Gibbs. OK. Also I want to follow on here. When the
Clean Water Act was passed, my vision of the intent was a
partnership with the Feds and the States. I want to hear what
your take would be if this rule is implemented, because we had,
like I said, 34 States that are in opposition that filed
comments. What do you see the role of State EPAs when this new
rule is implemented? I see it as such a power grab from the
U.S. EPA from the States. But what do you see the
responsibility and the roles of the State EPAs? And how do you
think the State EPAs have been functioning since the creation
of their entities and the Clean Water Act in 1972?
Mr. Kopocis. Well, thank you, Chairman Gibbs. I think there
is no doubt in anybody's mind that the effectiveness of the
States in implementing the Clean Water Act----
Mr. Gibbs. Can you pull your mic just a little closer?
Mr. Kopocis. I am sorry. I think there has been no doubt in
anybody's mind that the effectiveness of the States in
implementing their role under the Federal Clean Water Act has
been outstanding. The States implement the NPDES permit program
in 46 of the 50 States. They have taken on that responsibility.
Plus, the statute itself folds in many responsibilities for
the States, directly. Water quality standards are set by the
States to meet the uses that the States themselves set. Plus,
the States have a vital role under their authority under
section 401 to do water quality standard certifications that
apply to all Federal permits that may be granted, whether they
are EPA or any Federal permit or license that is out there.
So, States have done a remarkable job of assuming their
responsibilities. And, in fact, as the--the Environmental
Council of the States is meeting in Washington this week, and I
spent part of the last 2 days with them, and acknowledged as
much, and told them if they chose to give the program back to
us, we simply couldn't do it. We would be way too short on
manpower and expertise. And that is one of the reasons that, in
today's budget request, I describe that we are increasing the
amount of money for section 106 grants, which the States use to
implement their programs, and providing more resources for
their 319 program, which they use to address nonpoint source
programs.
Mr. Gibbs. You know, I think you mentioned everything else
they are doing, but how does it affect what-- rule
implemented----
Mr. Kopocis. In terms of the rule, we have had extensive
discussions with the States. We did hear, when the rule was
first published in March, that the States wished that we had
had more conversations. We did consult with them in advance of
the rule, going out. And their response was, ``We wish you had
done more.''
So, in response to that, we set up a special process for
the States during the public comment period. We engaged with
ECOS, the group I just mentioned; ACWA, the Association of
Clean Water Administrators, the people that work the programs
on the ground; and the Association of State Wetland Managers.
We asked each of those groups to produce five representative
States of their choosing to meet with us on a regular basis to
go over the rule and how it might possibly intersect with the
State programs. The States agreed among themselves, the three
groups, five each. They picked 15 different States, so we got a
really----
Mr. Gibbs. Were these 15 States part of the 34?
Mr. Kopocis. Yes. There were some.
Mr. Gibbs. OK.
Mr. Kopocis. And so, we sat down with them. We said we
would schedule whatever meetings they wanted. We ended up
scheduling four separate meetings of about 2 hours each. And I
can say with some sense of satisfaction that the--at the last
meeting, which was scheduled for 2 hours, it was a little over
an hour, and that meeting ended because, quite frankly, the
States have run out of things they wanted to talk with us
about.
Since the comment period closed, we have reengaged with
that same group of States to talk to them about possible
changes that we would make in the rule. We also committed to
them--I committed to them as recently as yesterday that, once
the rule goes final, that we want--or, actually, before the
rule goes final, we want to work with them, so that we can get
the rule in the right place, as it goes out to the----
Mr. Gibbs. Let me----
Mr. Kopocis [continuing]. Transition period----
Mr. Gibbs [continuing]. Follow up on that part of it,
because in our joint hearing with the Senate, I asked
Administrator McCarthy--because there is a lot of things that
came up in that hearing they said they were going to fix in the
final rule. And I asked, ``Are you going to put out a
supplemental or something that Members of Congress and the
public can see before you issue the final rule?'' and she said
no, they weren't, it wasn't necessary.
Are you anticipating a lot of significant changes before
the final rule comes out, and then you are not going to share
with us, or the public?
Mr. Kopocis. Well, we are anticipating going final with a
rule this spring. We are not anticipating another round of
public comment. We do believe that we can make some changes to
the rule, based on the many comments that we received, either
in the 400-plus public meetings that we held, both in DC and
around the country--most of which were outside of the DC area--
and the 1 million public comments that we received.
Mr. Gibbs. I am--my time has expired, but I just want to
ask one quick question on the--just keep going?
[Laughter.]
Mr. Gibbs. I have to be fair to my other Members. On the
comments, my understanding, 1 million or so that is--that have
comments, and the EPA is saying there is about 19,000 that are
substantive. Of the substantive ones, do you know what the
ratio breakdown is between pro and con?
Mr. Kopocis. Well, actually, sir, I think a better way to
characterize that subset of comments is we characterize them as
unique comments, in that they are a comment that is not part of
a mass-mail campaign, or something like that.
And, obviously, in the overall number of comments, there
are a significant number of mass-mailers, both pro and against
the rule. But we characterize them as unique comments, in that
they are not part of an organized effort.
Mr. Gibbs. Yes, well, the unique comments----
Mr. Kopocis. They may or may not----
Mr. Gibbs. What do you see in the unique comments, pro and
con, what the ratios are?
Mr. Kopocis. Well, and in those, though, they may or may
not actually offer substantive comments on the rule. They may
simply offer views without going into great detail as how they
want the rule to be changed.
Mr. Gibbs. Does the EPA also have a contractor working with
you on this, on deciphering and analyzing the comments?
Mr. Kopocis. Yes, sir. We do have contract----
Mr. Gibbs. What is the contractor's opinion of what the
ratios are, pro or against? What is the flavor, what is the
trend?
Mr. Kopocis. OK. The contractor works to help process the
comments, separate those that are mass-mailers from those that
are characterized as unique, to help us understand what are the
topics, and which ones--you know, we don't have to read 100,000
of the identical postcards.
Mr. Gibbs. Yes.
Mr. Kopocis. But, in terms of the numbers of how those
break down, I don't have those. I could get those for you.
Mr. Gibbs. So you are moving--so the EPA is moving forward
with the final rule, and you don't know if the comments--are
you taking the comments serious, if you don't know----
Mr. Kopocis. We are taking the comments extremely
seriously, sir. Both agencies, us and the Army Corps of
Engineers have devoted significant resources. Both agencies
have brought in personnel from their field offices. We brought
in people from the regions. The Army Corps brought in people
form their district offices to process the comments. We're
taking them extremely seriously.
Mr. Gibbs. But I think with 34 States, and I know 22 of
those States, and a comment specifically said ``Stop the
implementation of this rule; let's start over.'' That would be
significant comments, and you're moving forward with the rule.
I don't know--if you are, if your actions here--if you are
taking them serious. If you have a quarter of the States say
``drop this,'' the 24 or whatever it was--well, that's half the
States, isn't it? So that makes me, you know, if you are really
paying attention to those comments.
So I'm going to--we're going to have several rounds of
questions here today, so I want to turn it over to my ranking
member for any questions she may have. Thank you.
Mrs. Napolitano. Thank you, sir. And it would be
interesting to find out whether those comments came from
cities, from counties, from States, and whether or not--I'm
sure that was not part of the mass-mailing, but what were their
major concerns on those comments on those periods? And that
would be something I'd like to maybe have reported back to this
subcommittee, sir.
Mr. Kopocis. Surely.
Mrs. Napolitano. Administrator Kopocis, $13 million
included in the President's budget to assist communities
develop integrated plans through the direct Technical
Assistance Competitive Grants, in my area, Lake County, cities
and agencies have been working extensively to comply with the
new stormwater permit. If the $13 million request is funded,
how could the agency--how would the agency utilize this new
funding to assist them in pursuing an integrated approach to
permitting, and along with that, you have five communities that
received similar technical assistance. I'd like to know where
they were, what type of cities they were: urban, suburban, ag,
and an update on those efforts as to whether we are able to
learn from those in our areas
Mr. Kopocis. Thank you very much for that question. Yes
indeed, as you know, the agency is a very strong supporter of
our integrated planning framework. We have been devoting
considerable time and resources to that effort, and we have
been getting really positive responses from communities across
the country. The fiscal year 2016 request for $13 million would
allow us to provide significant resources to work with at least
13 communities, to help them develop integrated plans, so that
they can best meet their water--stormwater needs in the best
way possible.
We want to help communities understand, ``if I only have
one dollar to spend, where do I spend it? Where do I spend my
second dollar, my third dollar?'', and make sure that those
priorities are being recognized in how they meet the needs of
complying with both the Clean Water and the Safe Drinking Water
programs.
Mrs. Napolitano. My understanding is you do--you are
working with the Conference of Mayors.
Mr. Kopocis. We are working extensively with the Conference
of Mayors. In fact, we recently completed an effort where we
worked with them over the course of several months to
specifically address affordability issues, which of course is
at the very heart of the integrated plan.
Mrs. Napolitano. And funded mandate, sir.
Mr. Kopocis. Yes sir. Yes, ma'am. So we are working very,
very hard with them to make sure that we have a system that
works in the communities, that allows them to meet their
responsibilities for clean water, to their citizens and to the
environment, but at the same time does not impose an undue
strain on either the city's budget, the community's budget, or
the household budget.
Mrs. Napolitano. Thank you, sir. Have there been specific
problems in the implementation of the pesticide general
permitting, and has it had any significant adverse impact on
pest control operators or agricultural operators? Have they
been reported to you, the number, the severity, is it
increasing, is it diminishing? Can you report on that?
Mr. Kopocis. Thank you again for that question. I can say
that we have not been made aware of any issues associated with
the pesticide general permit. Nobody has brought an instance to
our attention where somebody was not able to apply a pesticide
in a timely manner including, because our ruling allows for
post-application notification, there have been no instances.
We've been getting very good data, and I can actually proudly
say that that is one area for EPA where we have no active
litigation, either for us or against us, on the pesticide
general permit.
Mrs. Napolitano. Thank you, and--that's interesting.
On the Superfund and Brownfields backlog, we're happy to
see the support for the reinstitution of the Superfund taxes in
the budget. Excise taxes imposed on domestic crude oil and
petroleum products through January 1996 and then they stopped.
They're used to treat damages caused by release of hazardous
substances. Do you have any idea, or can you report to the
subcommittee the number--the quantity of the backlog of pending
Superfund projects versus the available funding, and along with
that, if the tax is not reinstated, do you have adequate
funding to address that Superfund backlog, and for the
Brownfields program?
Mr. Stanislaus. I'll take that.
Mrs. Napolitano. I'm sorry. Mr. Stanislaus?
Mr. Stanislaus. Yes, so we have a backlog of a little over
30 sites and communities--30-plus communities across the
country. While some of the increase would address some of that,
a handful, up to possibly 10, we project, at least 3, maybe up
to 10, even with that----
Mrs. Napolitano. Would you identify those for the
subcommittee, so that we know where they're at?
Mr. Stanislaus. Sure.
Mrs. Napolitano. At least have an idea if any of them are
in our areas?
Mr. Stanislaus. Sure.
Mrs. Napolitano. Thank you. Go ahead, and you can finish.
Mr. Stanislaus. I thought I answered the question.
Mrs. Napolitano. Does the number--and the amount in
dollars?
Mr. Stanislaus. In terms of the total dollars for the
sites?
Mrs. Napolitano. The cleanups, right.
Mr. Stanislaus. I don't have that available in front of me.
Mrs. Napolitano. Would you mind looking it up, or having
somebody report to us----
Mr. Stanislaus. Sure.
Mrs. Napolitano [continuing]. Because that goes into the
``how do we deal with the budget issues'' as the need.
Mr. Stanislaus. OK.
Mrs. Napolitano. Thank you. The required review of Clean
Water State Revolving Fund allotments to the States: In section
505 of WRRDA, you were asked to complete a review of the
allotment of funds to the States under this revolving fund by
December. Can you tell us what the update on that is?
Mr. Kopocis. We are on track to meet that deadline. We have
been working with the States to see how to best fulfill that
responsibility that was given to us in the--in the Water
Resources Reform Development Act, but we are on track. We are
looking to make sure that we can use the most current data
available. The 2012 needs survey is currently at OMB for
review, so it is not yet public, but we of course know what's
in it, and we're working to make sure that--to see that we can
incorporate that as well.
Mrs. Napolitano. Would it be possible to identify for us
the--whether this includes tribal and territories?
Mr. Stanislaus. I'll----
Mrs. Napolitano. The State Revolving Fund?
Mr. Kopocis. Yeah. The needs survey that's in the Clean
Water Act today, it applies to the States, but it also applies
to the territories and possessions and the District of
Columbia. So there is the set-aside in the SRF that is
implemented now for tribes was something that was put in--
requested by prior administrations and has been carried forward
through the appropriations process. So it's not in the
allotment formula itself. But I will take that back to the team
and talk to them about how it is that we might incorporate
tribes, and of course we would want to talk with you all, as
authors of the provision and the States as well.
Mrs. Napolitano. Very appreciated, and tell it to the
subcommittee, please.
The last question I have, Mr. Kopocis, is the EPA quarters
in region 9 are jointly developing a National Drought
Resiliency partnership in southern California--the first time
I've heard of it. I'd like to--it sounds like a great
opportunity to improve the work that southern California is
doing on rain capture, on stormwater regs, and recycling,
improving water efficiency, and of course conservation. Would
you provide a very short summary of what the pilot project is
and how others could benefit from this?
Mr. Kopocis. I will have to get back to you on that. I can
say generally that we are trying our best to support the
efforts in any of the areas that have suffered from drought.
It's an administrationwide effort, but in particular what EPA
can do, and that is to encourage water reuse and recycling and
conservation.
Mrs. Napolitano. Well, we're looking at a continuing
drought cycle in the West, and certainly we need to look at
every single item that we can. And may I hope that you get your
appointment some day soon as Assistant Administrator, sir.
Thank you, Mr. Chair.
Mr. Kopocis. Thank you.
Mr. Gibbs. OK, I just want to let Members know, I know the
chairman and the ranking member went over our time, but we're
going to try to hold close to the time, because we're going to
do more than one round, so----
Mrs. Napolitano. Are they going to----
Mr. Gibbs. Well, we're going to do more than one round. I
just wanted to make you aware of, so there's a chance then
we'll have at least two rounds, or maybe more. We're going to
be here for awhile.
I recognize now the gentleman from Arkansas, Mr. Crawford,
for 5 minutes.
Mr. Crawford. Thank you, Mr. Chairman, Mr. Stanislaus.
Gentlemen, first let me thank you for being here. Mr.
Stanislaus, as you know, the Water Resources Reform and
Development Act was signed into law last year, thanks to the
hard work of many of the members of this subcommittee. It
didn't require much of the EPA, but section 1049 directed EPA
to revise the exemption on farmers under the Spill Prevention,
Control, and Countermeasure regulations. Specifically, it
exempted farms that have an aggregate aboveground oil storage
capacity of 6,000 gallons or less. Now, it's been 8 months
since the legislation was signed into law, and yet there is no
indication from EPA of their intent to exempt farms below this
capacity.
For example, when you look on the EPA Web site, it directs
compliance for the same exemption level that was required in
2013. My question is: why hasn't EPA let farmers know about the
exemption level change?
Mr. Stanislaus. With respect to WRRDA, EPA has in fact
moved forward on conducting a study of the risk of oil spills
and discharges from farms to waters per the direction of
Congress, and per the direction of Congress, once a study is
completed, we would move forward on potential adjustments to
the thresholds. Parallel to that effort, our regional offices--
we're doing an extensive outreach to the ag community and we're
open to doing more in terms of the spill prevention
requirements, and we also----
Mr. Crawford. So just a sec--the law was--it was signed
into law 8 months ago.
Mr. Stanislaus. Yes.
Mr. Crawford. Now I know that there was a--also there was a
requirement for EPA to conduct a study in consultation with
USDA regarding the appropriate exemption levels; that allowed
for 1 year. We're coming up on 1 year. We're actually 8 months
into that. But that didn't mean--that didn't mean that you
ignore the fact that the 6,000-gallon threshold was signed into
law. So my question is, now you're still giving the impression
to farmers that they have to comply at 1,320 gallons when that
in fact is not the case. Can you update your Web site to let
them know that 6,000 gallons is the threshold?
Mr. Stanislaus. Sure. I mean, we've been doing outreach,
and I'll have my folks take a look at the Web site.
Mr. Crawford. OK, that would be much appreciated, because I
don't think the outreach is working at this point. I think
they're going to your Web site and seeing that that's somewhat
of a problem.
Let me ask you this real quick. Are you familiar with
Executive Order 13690? Specifically addressing Federal flood
risk management standard?
Mr. Stanislaus. I can't say I'm intimately familiar with
that.
Mr. Crawford. I'm familiar with it, and what that does
basically is it has the effect of decertifying every levee in
the United States. Eight hundred eighty-one counties affected.
Let me give you some details here. It changes the minimum flood
elevation to be calculated by ``best available science'' for
climate change, but no one really knows what that means. It
enforces flood plain management standards, meaning ``all
structures must be built above flood elevation, not counting
the levee protection.'' Can you explain how that is going to--
how much that is going to cost? And what the effects are going
to be in those--in those protected areas?
Mr. Stanislaus. Yes, actually, I'm not sure that's within
my jurisdiction, I'll turn to Ken----
Mr. Kopocis. Yeah, I--that's not really within our agency's
scope of responsibility. As--we are affected by that Executive
order, but in terms of levee certification, that would be more
the U.S. Army Corps of Engineers.
Mr. Crawford. Right, but in the context of waters of the
U.S., does this not bring you into that loop?
Mr. Kopocis. Oh, I'm sorry. In terms of the Clean Water
Rule? The scope of the Clean Water Rule is not affected by the
certification of a levee or not. The current rule allows for
the assertion of jurisdiction over waters under the concept of
adjacent waters, regardless of whether they're separated by a
berm, a levee, or some other structure. So they're evaluated as
if the manmade structure did not exist.
So that's the current rule, and the proposed rule would
carry forward with that same concept.
Mr. Crawford. Well, I think what we're going to see here
with this Executive order is it's going to have overwhelming
costs and ultimately the taxpayer is going to pay the burden. I
hope that you all will familiarize yourself with that Executive
order, because I'm sure we're going to have the opportunity to
address that, and I feel confident that the EPA will certainly
have some oversight in terms of enforcement and authority on
that, as--as WOTUS sort of unwinds with this rule that we hope
does not go forward, but with that, Mr. Chairman, I yield back.
Mr. Gibbs. Ms. Johnson.
Ms. Johnson. Thank you very much, Mr. Chairman. And let me
thank our distinguished witnesses for--from the Environmental
Protection Agency.
I had the privilege yesterday, in my role as the ranking
member of the Committee on Science, Space, and Technology, to
discuss the important work that your agency is doing to keep
our air clean and our water safe, and the health and well-being
of all Americans at the forefront of the national priorities.
In my time here in Congress, I've served as both the
ranking member and chairwoman of this committee's Subcommittee
on Water Resources and Environment. And during my tenure we
worked together and enacted into law, alongside President Bush
at the time, the Brownfields Revitalization Act. At the time
there were over 500,000 such Brownfields sites nationwide. And
these are abandoned of course; underused sites that represent a
blight to neighborhoods, pose health and safety threats to our
communities and create a drain on economic prosperity.
The city of Dallas, which I represent, was one of the first
cities designated as a Brownfields showcase community, and over
35 sites were selected and subsequently redeveloped within the
city's jurisdiction. Barely $2 million jumpstarted that
initiative in Dallas, and over $370 million in private
investment was leveraged to create nearly 3,000 permanent full-
time jobs. We built over 1,600 units of housing on these
sites--I live in one of them--and brought about a wave of
sustained vitality of the city's core. And Mr. Stanislaus, we
know that you have just outlined a number of things
accomplished and also the benefits of what we have to gain by
it, and I want to thank you.
It's clear that Brownfields cleanup and redevelopment are
very important to our community and to our economy, and I hope
that we can agree to continue to meet the President's budget
request for this vital program.
On a separate note, I want to briefly weigh in on the
comments made regarding the Clean Water Rule proposed by the
EPA. Early this year, EPA Administrator McCarthy came before a
joint House and Senate committee on this matter, and I said
then, and I'll say again that the science behind the rulemaking
is sound. The EPA Office of Research and Development's report
on the connectivity of streams and wetlands to downstream
waters clearly states that the scientific literature
unequivocally demonstrates that streams, regardless of their
size, or frequency of flow, are connected to downstream waters
and strongly influence their functions.
The science is clear; the evidence is there, and I hope
that we can lay to bed the question of whether or not the
science of water connectivity downstream is based on evidence-
based science. I think it is, and I think it is sound science.
At the root of this debate is the issue of clean water, and I
firmly believe that access and preservation to the vital
resource is of the utmost importance to our community. I've
never met an American who did not want clean water.
And so my question to both of you is, how extensive have
the EPA efforts been to make sure to accommodate the concerns
of various stakeholders, including our farmers, in the
formulation of the Clean Water Rule?
Mr. Kopocis. Thank you, Ms. Johnson. Our outreach to
stakeholders has been unprecedented for the Office of Water and
the Clean Water Rule. As I said, this rule was signed on March
25th. It was posted on our Web site that day. It was posted in
the Federal Register on April 21, which began the actual period
for public comment. We extended the public comment period
twice, for a total of 207 days, to November 14th. We received
in excess of 1 million comments.
But perhaps even more importantly, during those 207 days,
our agency held over 400 meetings, either in person--most were
in person--or on webinars or teleconferences, where we engaged
with every stakeholder group that we reached out to, or that
reached out to us. We do not believe that there is a single
stakeholder group that was not afforded the opportunity to have
a dialogue with us, and many of those stakeholder groups had
multiple dialogues. Both multiple times in Washington, but also
because we held meetings in all 10 of our EPA regions, there
were multiple opportunities for stakeholders to participate--to
participate in the dialogue and bring their own regional
perspective to the discussion. So that's the amount of
stakeholder involvement that we've had, and we are continuing
to have, stakeholder involvement as I said--not only have we
talked with the States since the rule period closed, I have
personally talked with Members of Congress, and I've talked to
several stakeholder groups as well.
Ms. Johnson. Thank you very much, my time has expired.
Mr. Gibbs. Mr. Webster. You're recognized for 5 minutes.
Mr. Webster. Thank you, Mr. Chair. Thank you for having
this meeting. My question would be to Mr. Kopocis.
I'm from Florida; we have a lot of water. I'm from central
Florida. We've got thousands of lakes. One of the counties I
represent, or the three counties I represent is called Lake
County, because it's full of lakes; has a big large chain of
lakes called the Harris chain, just south--just south of my
district office in Orange County, there's another large chain
of lakes called the Butler chain, and then there's thousands of
other lakes, and they're all connected by channels or canals,
or rivers, small rivers, so I guess my question is can you
identify the full range of land and home improvements projects
that would be subject to the Clean Water Act under the proposed
definition of U.S. waters?
Mr. Kopocis. Thank you again for the question, and I cannot
specify in particular circumstances in your county, but I can
talk about the circumstances that I think you are raising in
terms of the existing rule and the proposed rule, and that is
how our water's connected with each other, and what role, in
particular, do subsurface waters play in connecting waters. And
today----
Mr. Webster. By the way, most of our waters are close to--I
mean, you do not have to dig very deep in Florida. We're
basically a wetland.
Mr. Kopocis. Yes, sir.
Mr. Webster. So we're connected.
Mr. Kopocis. So, but I think that, I mean, even today,
under today's rule and guidance documents that exists, the
agencies do look at whether waters are connected through
subsurface connections to determine whether there is an effect
between a water body and a downstream traditional navigable
water. We think that one of the things that we heard throughout
this proposal process was are we doing that correctly today;
how does the science support that; and how should we look at it
going forward.
This concept shows up in evaluating which waters are
considered adjacent for purposes of jurisdiction. And adjacent,
of course, requires that there be some other traditional
navigable water, or the territorial seas to be adjacent to. And
so it's not just a matter of taking a water body and drawing a
chain from water body to water body to water body to water
body. So because the farther out that you get, the more the
connection to the downstream water becomes, in Justice
Kennedy's word, speculative or insubstantial.
And so we received a lot of comments on this. This is one
of the areas where the agency is looking at those comments very
carefully to try to understand are there ways to be more
transparent and more open about how waters are connected with
each other, and what lines do you draw where you say while you
may be able to draw a connection--because as in your instance
in Florida where water body to water body to water body--at
some point it becomes too disconnected and too speculative to
comply with the tests the court gave us, or to be supported by
the science that our Office of Research and Development
developed.
Mr. Webster. Do you know if you considered the tax basis of
counties? Let's say this slows growth, it slows construction.
One of the three legs of our economic stool is construction--
the other is agriculture and the other is tourism--and if
there's not a specific list of things that you can or cannot do
in certain areas--and I hope that's forthcoming, if it is, I'd
like to have it--then even the ad valorem taxes are going to--
and we do not have an income tax in Florida, we're a great
State to live in, but we do depend on ad valorem taxes for our
schools and our county governments, and city governments. And
do you know if any of that was considered when you did, like,
the economic impact of what might be done by this rule?
Mr. Kopocis. Well, that aspect is not part of our economic
analysis, I can tell you that. But I do want to make sure that
there's a mutual understanding that, of course the Clean Water
Act does not apply to an activity unless that activity involves
the pollution of water or the filling of a water.
So if you are in an area and you're looking to develop, and
there is no intent to either pollute or discharge and fill a
water body, then the Clean Water Act simply does not apply. And
even where those activities occur, there are ways to get
permits. The Corps issues tens of thousands of permits to fill
waters of the U.S. today, and we do not anticipate that that
will change under the proposed Clean Water Rule, and also there
are tens of thousands of permits that are issued every day--I
should not say every day--tens of thousands of permits that
exist that allow for discharges of pollutants through the 402
NPDES program, which Florida administers.
So I think that--I want to make sure that people understand
what the Clean Water Act is about is controlling pollution or
deposition of fill material into waters, but it is not operated
as an absolute prohibition because we have thousands of permits
in existence to do those very activities today.
Mr. Webster. Thank you very much.
Mr. Gibbs. Ms. Norton, you're recognized for 5 minutes.
Ms. Norton. Thank you very much. The water system in the
United States is inevitably going to be, no matter what you do,
is going to be a source of controversy given the multiple
waters that are involved. Before I go further, though, I'd like
to say that I was pleased to see the President's slight
increase $3 million for the Chesapeake Bay. If ever there was
an indication that this--one of the great wonders, it touches
seven or eight States--needs our Federal support, it's the
presence of intersex fish in the Chesapeake Bay.
I also want to indicate my strong support for your work on
Brownfields, that's really going to aid parts of our
communities where expansion and redevelopment is absolutely
dependent upon doing something about what can often be prime
land. And we had such prime land here in the District of
Columbia. At the southeast waterfront, the navy yard had
contaminated that land; it was cleaned up and it's going to be
a revenue-producing site here, and that is exactly what's going
to happen as you continue your Brownfields work.
Let me ask because this question about the waters of the
U.S. keeps coming up and, I assure you, will keep up no matter
what you do. Mr. Kopocis, the opponents have, of course,
proposed yet a new proposal. In essence it would be another
round of public comment and rulemaking. It would in essence
start all over again, so I'm trying to see how we can get to
the bottom of this, reach some conclusion.
If you were to start all over again, actually it would not
be the second time, it would be the third time because the
agency has also looked at clarifying the Clean Water Act. The
draft Clean Water Act of 2011, as I understand it, was never
finalized so if we look at the number of years you've been at
work, it's close to 4 years, and I must say a very impressive
number of comments, 1 million comments, not to mention all
the--the public comments, not to mention all of the
stakeholders that you have had contact with.
So I'm trying to see whether what we're looking at is
another bite of the same apple, or just throwing the apple out
if the opponents really just do not want the apple to be part
of what you do because if it was not there, I'm not sure what
you would do.
So I have to ask you: what has been your consultation with
the States and, for that matter, with the Congress, and what
specifically would be gained by stopping you, blocking you as
it were, from finalizing the current proposed rule and, in
essence, saying, ``Start all over again''?
How would you then proceed? What would be gained by that?
Mr. Kopocis. Well, thank you, Ms. Norton, for that
question. I think in summary what would be gained is there
would be a delay in clarifying the jurisdiction of the Clean
Water Act. A subject which people have been asking our agency
to do is to clarify the jurisdiction of the Clean Water Act
going as far back as when the Supreme Court case came out, the
SWANCC case, in 2001, and then the more complicated case that
came out in 2006, the Rapanos case.
The agencies responded. As you correctly said, we responded
with guidance in 2003 to respond to SWANCC. We responded with
guidance in 2008. Those were both part of a public process, and
then we proposed guidance again in 2011 which was never
finalized, but was again part of a public process.
And throughout this process what we have heard from all
interested parties, regardless of whether they support the
Clean Water Act or do not support the Clean Water Act, is that
the agency should do a rulemaking, and we believe that it is
our obligation to fulfill those requests and do this
rulemaking.
Further, issuing another rule for proposal would simply
delay the ultimate resolution of the----
Ms. Norton. Would it be redundant to what you have done?
Mr. Kopocis. I cannot say that it would be. Well, what I
would say is that I do not know what value would be added other
than the addition of time. We have, as I said, done extensive
conversations in person with over 400 meetings with the public,
received their comments.
Ms. Norton. Would that include the States and State
representatives of States themselves who would be affected?
Mr. Kopocis. We met with the States extensively. As I said,
our last meeting with the States to discuss issues ended early
because there was nothing left for us to discuss.
We also engaged our Local Government Advisory Committee and
held meetings around the country bringing in local government
officials from cities and counties. We held meetings in St.
Paul, Minnesota; Atlanta, Georgia; Takoma, Washington; and
Worcester, Massachusetts. There we had representatives from
Florida, Minnesota, Missouri, Maine, Wisconsin, Montana,
Michigan, Texas, Utah, Idaho, New York, Arizona, and
Washington.
And so we worked with our communities. That is our Local
Government Advisory Committee. They went out to these other
cities. They brought in local officials from those regions to
further discuss this rule, and we believe that we have received
the input.
Quite candidly, I will tell you there is not a lot of new
in the way of issues that are being raised. Many of the issues
that are being raised are the same ones that have been raised
for several years.
Ms. Norton. I just want to clarify and get your view on one
question, lest people think that once your final rule comes
out, they have lost all hope particularly here in the Congress
of doing anything about it.
Does Congress not have the authority under the
Congressional Review Act and the appropriations process to
continue to express its dissatisfaction any way it sees fit
with whatever final rule you come forward with?
Mr. Kopocis. Yes, clearly Congress has that authority.
Ms. Norton. Thank you very much, Mr. Chairman.
Mr. Gibbs. Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman.
First off, if you would relay a message to Administrator
McCarthy, telling her thank you for addressing an issue that I
brought up during our joint hearing a few weeks ago regarding
the Mahomet aquifer in central Illinois. I appreciate the
prompt decision on the sole source designation. So thank you
for your efforts there.
I do have a question Mr. Kopocis. It is in regards to
WOTUS. Will the proposed rule or has there been any discussion
regarding the proposed rule for exemptions for water utilities?
I am concerned that when water utilities are going to go
fix a water main, you know, just to give an example, fix a main
break, are they going to need to get a Federal permit or work
through the State IEPA to do so?
Mr. Kopocis. I am struggling to come up with a set of
circumstances where they would. So I would say the answer is
no, but, sir, I cannot think of an instance where they would
need a permit under the Clean Water Act to repair that kind of
a break.
Mr. Davis. OK. Well, obviously this issue brings up many
concerns to us, which is why you are here, why we have had so
many different hearings on this issue.
One other question to you, Mr. Kopocis. Can you explain why
the EPA did not convene the Small Business Advocacy Review
Panel in accordance with the requirements of the Small Business
Regulatory Enforcement Fairness Act when developing this rule?
Mr. Kopocis. Well, thank you for that question. We did as
we do with all of our rules do an analysis of our
responsibilities under the Regulatory Flexibility Act, and we
made a determination that there would be no significant impact
on a substantial number of small entities. That is the test
that we are held to.
We made that determination jointly with our coregulators at
the Army Corps of Engineers, but we did not just take our word
for it. We also consulted within the executive branch to
determine whether our certification was correct. We reached out
to the Office of Management and Budget, and we reached out to
the Department of Justice to see if they agreed with our
conclusion, and they did.
I do understand that the Small Business Advocate has
disagreed with that, but we have made our certification, and it
is supported by others in the administration.
Mr. Davis. I think you can understand there is a lot of
concern from the stakeholders. As a matter of fact, a perfect
example of what I think may not be effective outreach is when
Administrator McCarthy apologized to farm groups for not
consulting them on the interpretive rule that has now since
been rescinded.
I think this would have been a perfect opportunity to use
the Science Advisory Board with the new agriculture member to
have an agriculture focus, too.
Lastly, I have had Deputy Administrator Perciasepe sit in
that same chair not too long ago, asked him a question about
whether or not this proposed rule would exempt individual
septic systems that discharge aboveground because there is
language in the proposed rule that says sewage treatment
facilities are exempt from this rule. He said at that time that
the EPA did not require permits for aboveground septic system
discharge units, and frankly, I was surprised by that answer
because I had the frequently asked questions from region 5 on
how to get a permit in Illinois for these units.
I asked the exact same question of Administrator McCarthy,
and I did not get an answer then either. She actually said that
was a trick question after Mr. Perciasepe said he was at a
loss.
Now, I still have yet to get a response from the EPA to
that question. This is the third time I have asked this
question about whether or not these units are going to be
required to get a permit under the Clean Water Act, and this is
the concern that we have, that people will come into rooms like
this, they will answer questions and then walk away, wipe their
hands off, and check the box that they came here and they took
the questions.
I am getting no followup from your agency on this issue. To
me it is a simple question.
Mr. Kopocis. Well, I will answer it in two ways. First,
generally, if there is not a discharge from a pipe or some
other discrete conveyance, there is no Clean Water Act permit
required.
I do not know the particular circumstances that form your
question, but what I will tell you is that the second part of
my answer is that you will get followup. I will make sure that
my people in the Office of Water or myself personally will
contact you or your staff. We will find out the circumstances
that give cause to your question, and we will give you an
answer.
Mr. Davis. Well, I appreciate that. Again, this is the
third time, and it was Administrator McCarthy the last time on
this issue.
So I am very concerned. I want to know if my constituents
in rural areas are going to have to continue to get a permit
under the Clean Water Act because the frequently asked
questions specifically say they may be subject to a Clean Water
Act citation if they don't do this.
And you cannot say in the proposed rule that sewage systems
are exempt without including them. I want to know the answer,
and I appreciate your time. My time has expired, but thank you.
Mr. Kopocis. I will absolutely do that, Mr. Davis. We will
get back with you.
Mr. Davis. One quick thing. If we do not get a response the
next time, I am going to have the staff behind you stand up
when I ask that question, and I am going to say they should be
fired.
Mr. Kopocis. I have some of my colleagues here. I may even
have a couple of them watching this if it is being broadcast
online. I can assure you you will get an answer.
Mr. Davis. Thank you.
Mr. Gibbs. Ms. Esty, 5 minutes.
Ms. Esty. Thank you, Mr. Chairman.
And I want to thank both of you for joining us here today.
Mr. Stanislaus, in particular I would like to explore with
you more about the Brownfields programs. I represent a part of
Connecticut where these issues are very important. Currently we
have all too many properties that are not productively engaged
in the tax rules and contributing to local communities. So it
is of great interest to us to understand how we can better get
more properties being treated and back into productive play,
hiring people, contributing towards economic growth.
You noted in your testimony that since its creation, the
Brownfields program has leveraged more than 104,000 jobs and
$22.1 billion in cleanup and redevelopment. Can you, again,
sort of digest down from an investment perspective what is our
return on investment on the taxpayer's dollar when it comes to
your program's impact on local communities?
Mr. Stanislaus. In terms of the direct return on
investment, I am going to have to get back to you. So there are
various other indications of that. So I noted the land use
value increases in my testimony. I noted the one for $18
leveraging.
So we have various kinds of indications. We are actually in
the middle of a study of the tax revenue increase based on the
land use value increase. So I will get back to you when that
study will be finished.
Ms. Esty. Thank you.
I noticed in your written testimony you cite an example
from our district. In 2009, the EPA awarded a job training
grant to the Northwest Regional Workforce Investment board in
Waterbury, Connecticut, and I want to let you know that that
grant made it possible to develop and implement a job training
program for unemployed and underemployed individuals in my
district, in partnership with Naugatuck Valley Community
College.
And the graduates of that program had a very high job
placement rate in the environmental field. How do you measure
success of the Environmental Workforce Development and Job
Training Program?
And, more generally, what are the goals of that program and
its impact on jobs in the local community?
And what more can we do in Congress to partner on these
initiatives?
Mr. Stanislaus. So I think you have cited one of the
measures, that is, all people being hired at a fair wage, and I
think both of these indications have been met at a very high
level.
Now, what we have done in the Job Training Program is we
have really expanded the certification, expanded the skill set
of the program. Now, the program is really focused on
individuals that have a barrier to employment, you know,
veterans, formerly homeless individuals, building that skill
set to be employed.
One of the real important aspects of this multiskilled,
multicertification is that every grantee tailors their program
around the local market. What we request upfront is partnership
with local businesses and the kind of skill sets that the local
businesses need. That's one of the reasons I think it's a
successful program. A 70-percent hiring rate is a very
successful program.
So, I think continued support of that would be great.
Ms. Esty. Thank you, and I can tell you that those
initiatives are very meaningful because, again, they are
addressing local workforce needs and getting back into the
employment rolls folks like veterans and those who are
underemployed in our economy.
I wanted one more quick question for you. I noticed looking
at last year's budget that only 32 percent of the Brownfields
applications were able to be funded. With the President's
request for an additional $30 million, what would that do in
terms of the agency's ability to fund the strongest
applications?
Mr. Stanislaus. We project about 140 additional communities
will be funded.
Ms. Esty. Thank you. Again, I can tell you having one of
those communities, it would make a meaningful difference, help
bring down our unemployment rate and expand job opportunities.
Mr. Kopocis, just briefly I wanted you to expand a little
bit on the resiliency initiatives. This is something having
survived Super Storm Sandy in the Northeast, having increased
frequency of severe weather; can you talk to us a little bit
about what the agency is looking to do in this regard?
Mr. Kopocis. Thank you very much for that.
Yes, we are looking to work with communities and with the
utilities to make sure that we can help them meet their needs
as they see them. Our program for climate ready utilities is a
tool that is available online that people can use to assess
their risk associated with climate change or the droughts, sea
level rise or anything else that may be facing them that would
threaten their resiliency and sustainability, and then they can
put in whatever inputs they want to put in, and then it will
help guide them to what are the kinds of actions that you might
want to consider.
So it is not a, ``OK, if you are threatened, you should do
X.'' It is what works for you, and we have been getting very
positive responses from communities. We are continuing to
expand that.
We are including a stormwater calculator, for example, for
communities so that they can take advantage of it as well.
Ms. Esty. Thank you.
I will follow up with you off-line because we are looking
to do some of this for, you know, greater drainage, different
kinds of paving, et cetera, and it sounds like that would be
right in your line.
Mr. Kopocis. Would love to do it. Thank you.
Ms. Esty. Thank you very much.
Mr. Gibbs. Mr. Massie.
Mr. Massie. Thank you, Mr. Chairman.
Mr. Kopocis--sorry about that.
Mr. Kopocis. That is all right. I have had it mispronounced
before, sir.
Mr. Massie. More than 700 communities have combined sewer
systems that have periodically experienced combined sewer
overflows, and many of these communities, a few dozen of which
are in my district, are dealing with consent decrees from the
EPA and enforcement actions.
What are the EPA's plans and schedule for dealing with and
resolving many of these enforcement actions?
Mr. Kopocis. Well, thank you, sir, for that question. We
are working very hard with communities to make sure that we can
come up with realistic timetables to address combined sewer
overflows. As you know, the combined sewer overflow policy
dates back to the mid-1990s where the agency decided how it was
going to work best with communities, and Congress enacted it
into the Clean Water Act.
Our integrated planning framework is designed in
significant part to help communities with combined sewer
overflow needs, and one of the things that we have heard is
concerns of communities that we have not as an agency been
flexible enough with communities and that the integrated
planning framework is too often implemented solely through an
enforcement action, and are there ways for us to work with
communities to do it in a permitting context.
So we are taking a good look at that. Part of the
investment that we are requesting for fiscal year 2016 would go
toward that, but we are also looking to invest fiscal year 2015
funds to look at are there ways to incorporate the concepts of
integrated planning into the permitting process as well so that
communities are not forced to go through an enforcement action
to get the flexibility they are looking for, but we can do it
in a more collaborative way.
Mr. Massie. Will the cities that are already locked into
consent decrees be able to have their situations reexamined and
reopen those discussions to modify the consent decree?
Mr. Kopocis. Well, reopening a consent decree is not the
easiest thing to do and that is not EPA's sole decision by any
means once we are in a consent decree context, and then it
also, of course, involved equities of the U.S. Department of
Justice as well. So we have to work with them.
But I think that what it does reflect is our willingness to
be flexible. To reopen a consent decree, of course, there needs
to be some changed circumstances that would cause us to support
doing that.
I think that our experience has been while many communities
want to avoid being in a consent decree and we understand that,
we have been getting very good results from our existing
consent decrees, and we have talked with some communities who
have come back to us and said they would like to revisit
certain elements, particularly those that are putting in place
green infrastructure and are getting different results and
would like to expand perhaps the use of green infrastructure.
Mr. Massie. Well, you know, in our communities that are
under the consent decree, they are really struggling to put in
that new infrastructure, and what it has done is to throttle
growth in certain areas where the consumers and the residents
of the area have seen, you know, 20 percent annual rate
increases to the point where some people have seen their sewer
rates double.
And so the sanitation districts do not have the resources
to put in new infrastructure for the additional homes that
would be built there, and that is sort of holding back growth
in these areas.
So they would really like to see more flexibility in
dealing with this consent decree and to see the EPA more as a
partner than a prosecutor, which is, I think, how some of these
sewer districts see it, and this in my district has been sort
of the mother of all unfunded mandates.
Do you have an idea of what the national cost of complying
with these consent decrees has been in combined sewer systems?
Mr. Kopocis. I do not have that estimate. I can check and
see if we have it, and if we do, we will provide it to you.
Mr. Massie. My indication is it can be--I mean, these sound
like large numbers--in the billions instead of the millions.
Some cities are looking at spending more than $1 billion to
comply with this in communities.
You know, everybody wants clean water, but there is a
balance to be struck here, and I hope that the EPA will provide
more flexibility, and when they do, what can EPA headquarters
do?
You know, you have expressed a willingness to have some
flexibility with these communities, but we want to make sure
regionally that message gets passed down. Are you doing
anything to make sure that regionally they get the message
across the country that flexibility should be looked into?
Mr. Kopocis. Yes. Thank you.
First, I understand the concern that you are expressing,
and secondly, we are taking steps to address that, whether it
is through our integrated planning framework, making sure that
message gets out.
We have been working with our regional offices, but we also
meet regularly with our regional administrators and our
regional water staff to talk to them about what it is that we
are looking for in the way of flexibility. We at headquarters
are emphasizing more flexibility and more creativity in how we
meet, as you say, our mutual Clean Water Act goals in a way
that works for communities.
But we do understand that part of our task at headquarters
is to make sure that that word gets out of the DC area and
actually gets out into our regional offices.
Mr. Massie. Well, hopefully they are watching this hearing
today in the regional offices.
Mr. Kopocis. Well, I could try sending them a copy.
Mr. Massie. Thank you, Mr. Chairman. My time has expired.
Mr. Gibbs. Ms. Edwards.
Ms. Edwards. Thank you very much, Mr. Chairman, and to the
ranking member as well and to our witnesses today.
I really do want to give a special shout-out to the Federal
workers at the EPA because I just think they do a tremendous
job protecting our air and our water, and I just want you to
know how much we value that and appreciate their hard work.
Under this administration, the agency has actually
instituted greenhouse gas reporting programs, issued guidelines
essential to stopping and dumping of waste from mountaintop
removal and valleys and streams and set stricter standards for
vehicle fuel efficiency. It has been an amazingly productive
EPA.
And in the current budget request, the Chesapeake Bay is
actually seeing a substantial increase in funding from $70
million to an additional $3 million over the fiscal year 2015
request, and I just want you to know how much we welcome that
as Marylanders because I think this fragile ecosystem that is
so important to the vitality of the States and the region is on
the road to recovery, and that is in large part because of the
partnership, true partnership, that we have had with the
Federal Government.
One of my concerns today though has to do with the Clean
Water State Revolving Fund because I think they are also key to
maintaining our Nation's wastewater needs, and so it was kind
of disappointing to see that there has been a 23-percent
reduction from the fiscal year 2015 enacted level, and let me
tell you how those funds work.
So for the States that receive those funds, they actually
go into the structures and landscapes and everything else that
actually contribute to the health of the Chesapeake Bay, and
so, on the one hand, we are increasing the funding for the bay
and its restoration but, on the other, we are taking away from
the Clean Water State Revolving Fund.
So I would really urge the administration to do some
reconsideration here, and I think that we certainly should do
that here in the Congress.
I also want to point to another area that has been really
important to me as a Member of Congress, and that is green
infrastructure. We have heard some discussion about that today.
I think it is cost effective. It is efficient, and the demand
for green infrastructure grants we heard coming out of the
Recovery Act and beyond has been over the top, and so
jurisdictions recognize that, too.
So thanks for the 10-percent increase in funding levels
there.
I want to get to, if we could, there has been a lot of
discussion about the EPA rulemaking and a lot of misconception
about that. So in the time remaining, I want to give you
through our Deputy Administrator the opportunity to describe
the rulemaking process, the numbers of comments that have been
received, the changes that have actually been made from the
beginning to now the proposed rule based on those comments, and
then you know, I think that we have been going through about
200 days of comments, which is sort of unheard of in a
rulemaking process, and yet those are the kind of
accommodations that the EPA has made because of the concern
with this rulemaking.
So I thank you for that, but I want you to take some time
and explain to us what the process is, where you are going to
go, and the level of attention that you have paid to make sure
that this rulemaking finally clears up a decade long process
that multiple administrations have been engaged in.
And I will leave you the remainder of my time.
Mr. Kopocis. Well, thank you, Ms. Edwards, and in
particular thank you for the kind words of EPA.
As many of you know, most of my working career has been at
this building or in the Dirksen Building, and when I went to
EPA I also never found a more dedicated set of professionals,
and they work very hard to serve all of us and keep our waters
clean and safe.
The process for doing the Clean Water Rule really has been
one of the most extensive both in terms of time and resources
for outreach that this agency has ever contemplated. I went
through earlier the fact that the agency has been involved
through a series of guidance documents in trying to address the
Supreme Court cases, and on those received hundreds of
thousands of comments through the public comment period.
We also engaged the public through a series of outreach
meetings before this current rule went out, including States
and local governments, and also I should have mentioned to Mr.
Davis the small business community as well. While we did not
think that the Regulatory Flexibility Act applied, we reached
out to the small business community regardless.
This rule, as I said, was put out on our public Web site
the day it was signed on March 25th. It was out there for
review until April 21st when it hit the Federal Register, and
that started the clock for the comment period, which we
extended twice.
We extended it the first time because there were a lot of
appeals. We put it out for 90 days. We extended it for 90 days,
and then we wanted people to be able to have an opportunity
before the comment period closed to actually look at the
recommendations of the Science Advisory Board that were
reviewing both our rule and the science that supported our
rule.
So we then extended the comment period again so that people
would have a full 4 weeks to review the Science Advisory Board
before their comments were due on the proposed rule.
During that period of comment, we held over 400 meetings,
the majority of which were around the country. We also, as we
said, received in excess of 1 million comments. We held
specific meetings with stakeholder groups targeting in
particular State and local governments because of the unique
role that they play, the States as coregulators and the
municipalities as partners as well because the bulk of our
water quality improvements come from municipalities.
So we reached out to them. Since that time we have
continued to reach out to people. We will be reaching out again
before the rule goes final so that people can anticipate it. We
will also be addressing issues, such as the transition period,
grandfathering of existing determinations, how it is that you
deal with this transition, what is the opportunity for somebody
who seeks a permit to say, ``Well, I may have a jurisdictional
determination, but I would like to have it reconsidered under
the new rule.''
So those will be transition questions as well that we plan
to undertake.
Ms. Edwards. Thanks, and I have greatly overextended my
time.
Thank you, Mr. Chairman.
Mr. Kopocis. Thank you, Mr. Chairman.
Mr. Gibbs. Mr. Graves.
Mr. Graves of Louisiana. Mr. Stanislaus, I hope you are not
feeling neglected today; I bet Ken is a great guy to testify
with.
Mr. Kopocis, appreciate you being here today.
Louisiana is a somewhat unique State for a number of
reasons, and one of which is the extraordinary watershed that,
as you know, goes from Montana to the Canadian provinces, to
New York, the largest watershed in this Nation, one of the
largest in the world.
I really struggle with waters of the U.S. definition or
rule when you attempt to apply a national standard, in effect.
In reading through the rule, and I have read through the entire
thing, and in a previous life having served in the executive
branch at the State level, I could interpret that rule to
basically apply to virtually any lands in south Louisiana.
And I had strong concerns about attempting to apply a
national standard, and I wonder if you could briefly comment on
that.
Mr. Kopocis. Well, thank you, Mr. Graves.
And I do not know if it is a breach of protocol, but I have
known you for so long I will say congratulations. This is the
first time I have seen you in person since your successful
election, but congratulations.
I think that you would find that for a State like
Louisiana, and as you know, I am very familiar with the State,
I think you will see very little change in terms of Clean Water
Act jurisdiction. Today in Louisiana, as you know, the Clean
Water Act applies obviously to the traditionally navigable
waters and also the adjacent wetlands.
I think that the tributary system, our definition is not
really different except for the first time we are providing in
the rule what is a tributary. We are putting more bounds about
what can be considered a tributary and providing less
discretion to the regulator as to what would constitute a
tributary.
Mr. Graves of Louisiana. Just very quickly I am going to
interrupt. I know you would hate to miss my second, third and
fourth questions.
I just want to highlight very quickly though that the
hydrology in the State is very different. Again, as I say, I
have read the rule, and I feel very strongly that it could be
applied to virtually all the lands in south Louisiana.
The Administrator came before the committee and indicated
that it would provide more certainty and insinuated, in my
opinion, that cost of compliance would be lower. As you know,
the cost of compliance even in your own assessment is higher,
and the Small Business Administration raised serious concerns
with the cost of compliance that the Corps and EPA have put
forth.
I will tell you right now I would be willing to place a bet
with you. I would bet you right now. Perhaps I would donate to
Sierra Club if you agree to donate to Koch Industries that this
rule is going to be thrown out by the Supreme Court. I think
that it goes well beyond the bounds of the law, and I will
acknowledge to you that I think there probably are some
challenges in the law and perhaps Congress has some
responsibility to look at that, but can you tell me briefly,
because I have other questions that I know you would love to
hear, can you tell me briefly where you believe that the EPA's
discretion in this case ends?
Where are the sideboards here?
Mr. Kopocis. Well, thank you.
And I would take you up on your bet, Mr. Graves, but I
think it would be unfair. I think Sierra Club needs the money
more than the Koch Industries does.
But I think that there are sideboards. In fact, that is
what this whole rule is about, is providing that greater
predictability and consistency. One of the things that we know
is in a post-Rapanos world there have been so many instances
where there are case-specific analyses that have to be done.
They are done in 38 different Corps districts without any kind
of real instruction as to how it is that these determinations
should be made.
And so this rule for the first time as opposed to what we
have today, as I mentioned earlier, it is more specific as to
what constitutes a tributary for purposes of jurisdiction. It
is more specific as to what waters would be considered adjacent
for purposes of jurisdiction.
We are proposing to put in place a more transparent system
for people, both the regulators and the regulated community, to
understand what constitutes a significant nexus to comply with
the instructions that the Supreme Court gave us.
Mr. Graves of Louisiana. Thank you.
Two quick things. Number one, we met as a result of the
NACo Conference with numerous parishes that were in town in the
recent weeks. Every single one of the parishes had on their
list this--and it wasn't the certainty--it was the lack of
certainty that they were concerned about.
And so I want to ask you: will you please work with local
governments and work with State governments before you finalize
this rule to attempt to provide them more certainty?
Last question very briefly, Mr. Kopocis, I think you are
aware that coastal Louisiana has lost 1,900 square miles,
including the majority of which would be jurisdictional
wetlands. The majority of that is caused by the U.S. Army Corps
of Engineers.
Can you explain to me how you are going to hold them
accountable under this new rule?
Mr. Kopocis. Well, I do not know that there will be a
direct applicability for the Corps' responsibility in relation
to the lack of sediment deposition that is causing the problems
in south Louisiana. I do want to though say that----
Mr. Graves of Louisiana. So the private property owners
will be treated differently than the Federal Government will
under this rule?
Mr. Kopocis. No. The Clean Water Act will apply to private
property owners or public property owners the same.
Mr. Graves of Louisiana. The 1,900 square miles of land
lost in south Louisiana is a direct result, a direct result of
Federal actions in south Louisiana, historic, ongoing, and will
happen in the future, and I just want to ask you, Mr. Kopocis:
is the Federal Government going to be treated in the same way
in regard to enforcement as private property owners will?
They are causing jurisdictional wetlands lost today.
Mr. Kopocis. Well, the Clean Water Act applies to the
discharge of pollutants or dredge material. In terms of the
actions of the Corps that may be contributing to the erosion
that is occurring if it does not involve either of those two
actions, the Clean Water Act does not apply to it.
But if I could, Mr. Gibbs, just one thing I wanted to say
is that in terms of local governments, we met extensively with
local government interests. A lot of them were individual
communities, but we also met with NACo, the National League of
Cities, and the Conference of Mayors, in particular. We
convened them to represent their constituencies, and
specifically discussed issues of importance to local
governments.
And I can say that what you can anticipate, what they can
anticipate seeing in the final rule is that we listened very
carefully and particularly to two areas that were common to all
of their concerns, and that was how municipal separate storm
sewer systems were treated under the Clean Water Act and would
this proposed rule affect them, and then the other issue was
the construction and maintenance of roadside ditches.
Those were very important issues to them, and we have
listened very carefully.
Mr. Graves of Louisiana. Thank you, Mr. Chairman.
Thank you, Mr. Kopocis.
Mr. Gibbs. Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chairman, and my thanks to the
witnesses for their good work and their testimony.
As you know, California is heading into likely a fourth
year of critical drought, and I know you are very familiar with
the impacts and the concerns surrounding that. That is why,
although I am pleased and supportive with respect to a lot of
what is in the budget request, the one thing that stands out is
the significant reduction in funding for the SRF Clean Water
Program.
It is very critical because West-wide there may be as much
as 1 million acre-feet of water that could be brought on line
through water recycling, advanced water treatment projects in
the near term, in just the next few years. Many of these
projects already have authorizations under title 16, a
different program with a different agency.
We are having a heck of a hard time supporting them through
title 16 because that program has been politicized and
essentially ground to a halt by our colleagues across the
aisle.
So one of the only ways that they can get Federal support
and move forward with critical water recycling solutions to the
arid West is through that SRF Clean Water Revolving Fund.
So in a year like this of all times, I have to ask you: is
a significant reduction in funding for that program
appropriate, and does it leave you enough resources to support
the critical need?
Mr. Kopocis. Well, thank you for that question, and we are
very sensitive to the serious issues being presented by drought
out West and in some other areas of the country as well, but
most severely and most notably in California.
We had to make some tough choices in putting together the
budget. We did hear Congress' request that the budget of the
President stop having significant reductions in the requests
for SRFs. So in both of the SRFs we requested more than the
previous budget.
We made the choice that we would make a greater investment
in the Drinking Water SRF than in the Clean Water SRF to
reflect the public health needs, to reflect what our larger
documented needs are, and also to help work more importantly
with small communities who have special needs that cannot be
met the same as some of the larger communities.
But we very much take to heart that, and we will continue
to support the program, and we are continuing to look for ways
to bring additional resources to the table.
I mentioned earlier our Water Resiliency Financing Center.
We are looking for ways to be more creative in financing, bring
more money, some private sector money to the table. We also
want to serve as a resource for communities to figure out are
there more creative ways to meet needs.
For example, sometimes a community will say that they have
an issue that they need more drinking water capacity, but what
we find is that--I will make up numbers--they are treating 40
million gallons of water a day in their drinking water plant,
but they are only treating 20 million gallons a day in their
wastewater plant. Well, they do not have a drinking water
capacity problem. What they have is a leaking pipe problem
because there should be not a one-for-one, but there should be
a figured ratio.
So we are very much looking at that.
Mr. Huffman. That is critical work, and I encourage you to
continue that, and I am looking forward to working with EPA on
all of these things.
There is one other area though where I think your agency
could make a tremendous difference relative to the SRF and the
vital role that it can play during this drought, and that is a
policy guidance that you have had for some time that restricts
use of SRF funds for investments actually at houses and
businesses that are actually customers of water districts.
So my understanding is that EPA will not allow, for
example, the State of California to use these funds to support
water districts creating property assessed projects to retrofit
water appliances or even to fix leaky sewer laterals, which
can, as you know, make a big difference in the operation of
wastewater facilities.
There is a very proven track record on the repayment of
these things through on-bill financing or property assessed
agreements with homeowners and businesses, and in any event
these districts would be on the hook for repayment of the loan
anyway. It is purely a function of a policy guidance, a rather
arbitrary view, in my opinion, view that EPA has had
restricting these funds. Now of all times we should be looking
at ways to leverage and maximize the value of these funds in
the arid West, and I just hope that that is something you might
be willing to take a look at.
Mr. Kopocis. Well, thank you for that, and of course, in
the amendments to the Clean Water SRF that were made in June of
2014 as part of the water resources bill, the eligible uses of
the SRF were expanded, and we will be in contact with you to
see how we can best incorporate some of the concepts that are
included in that, such as conservation, et cetera, and see how
those could be worked in a way that addressed the needs that
you are raising.
Mr. Huffman. Thank you very much.
Mr. Gibbs. Mr. Babin.
Dr. Babin. Thank you, Mr. Chairman.
I have a question for Mr. Kopocis. I am the congressional
representative of District 36 in southeast Texas, and I served
for 15 years on the Lower Neches Valley Authority, several of
those years as the president of that river authority, and also
I am a dentist by profession, but have been involved in the
cattle business. We had a small operation.
And when these proposals came to light initially, I think
the greatest concern that we heard of farmers; ranchers;
landowners; developers; State, local, municipal governments;
officials was that the proposed waters of the U.S. rule--the
fear they had was it was going to be an enormous power grab by
the Federal Government.
And we feel that the agencies involved here, including
yours, failed to conduct outreach to State and local
government. The lack of appropriate consultation was pointed
out in comments filed by many State and local officials, plus
organizations like mine representing the State and local
governments.
If the EPA and the Corps worked with States to develop the
proposed rule as you claim, why did the majority, the vast
majority of States, write comments in opposition to the rule as
proposed and are asking the agencies to withdraw or at least to
substantially revise the rule?
Can you explain that please?
Mr. Kopocis. Well, thank you for that question. I do not
know that I can explain why a particular State or group of
States took an action, but what I can say is that we did reach
out to State and local governments in advance of the rule. We
have had an ongoing dialogue. We did hear very loud and clearly
the point that you just made, that the States felt that we did
not do enough to reach out and engage with them before the rule
went out.
And that was why after the rule went out we set up a series
of meetings that addressed not only State but also local
governments so that they could participate with us, so that we
could hear all of their concerns. We could engage in a dialogue
with them as to what kinds of things they were interested in,
what areas they thought we should change, and quite candidly,
some areas that they thought that they very much appreciated
what we were doing.
There has been a longstanding request from State and local
entities that the agencies engage in a rulemaking, which we are
doing. I think many of the criticisms that we have heard are
not so much that we are doing a rulemaking as there are
elements of the rule that they want to disagree with, but that
is the very purpose of the notice and comment period that we
engaged in.
We put a proposal out as a moment in time, and we seek
people's comments on it. We welcome those comments. That is how
we get a better product, and we think at the end of the day we
will have a better product.
Dr. Babin. Well, listening to someone's comment and then
using the term ``consultation,'' which I believe was used, I
think that means that folks thought in consultation that what
their concerns were were going to be taken into consideration
before the rule was finalized. And I am not sure that they feel
that way, that they were done that way.
Mr. Kopocis. And we understand that and we heard that. We
did consult with the States. What we have heard in the meetings
when the States have come in and talked with us are two things.
One is a general statement of we wish you had done more, and
the second one is we wish you had done it perhaps closer to the
time that the rule went out.
Because as you may well know, the agencies were working on
a guidance document. The agencies then decided that the
guidance document was not going to be well received and that,
in fact, it really was not going to meet the needs of the
American people because we cannot be as effective in changing
how the Clean Water Act is implemented through guidance as we
can through the rule.
And, in fact, in the Rapanos case, Chief Justice Roberts
specifically suggested very strongly that the agencies could
really address a lot of these issues if they would do a
rulemaking, and so we thought that it was time for us to go
ahead and move forward on the rule.
Dr. Babin. Thank you.
Mr. Gibbs. Mrs. Napolitano.
Dr. Babin. Thank you, Mr. Chairman.
Mrs. Napolitano. Do you not have any?
Mr. Gibbs. Well, I am going next, but I am giving you an
opportunity.
Mrs. Napolitano. Yes, I sure am. I will go for it. Thank
you, sir.
There are a couple of things that have come up, and you
were talking about the ability for conservation and being able
to help communities be able to capture as much water runoff,
but also rainwater or anything else.
And I know there was a program, and one of these days I
will identify it, that helped some of the communities' berm,
concave the medians and put in well plants, and that is a
method of conservation, especially in years where you have
very, very little rain.
I would love to be able to get some report on where that
would be because as we know, this is another method of being
able to convince the cities that it is up to everybody to start
capturing any water.
The other area would be the USGS. Although it does not come
under the jurisdiction of this subcommittee, the recharge for
where you have runoff, dry storm runoff they call it, to be
able to capture anything that is industrial, commercial,
residential, and clean it and then put it back into either the
aquifer if we know that the aquifers are capable of receiving.
Somehow we need to have the agencies be able to talk to
each other and cooperate in being able to identify additional
ways that we can conserve, utilize recharge, utilize recycling,
conservation, all of the above.
So I would ask that maybe in the future you might suggest
how you are working with other agencies or can work with other
agencies to maximize the use of our precious water because
there will be no more water, and the cycle of drought will
continue according to everybody that we know.
The other question that I have is 4 years back my
colleagues unveiled the Budget Control Act and the arbitrary
spending cuts in 2013, and even though as we have heard the
economy is rebounding, but we have not been able to take off
those handcuffs. We are still operating under those illogical
spending caps.
What impact has this had on your agency's ability to carry
out its mission, one?
And, two, in your opinion, what are some of those programs
that have been hardest hit in your agencies?
Mr. Kopocis. Thank you very much for that question.
I am going to run through the several items that you raised
in there, and I will hopefully get through all of them and
answer your question, but I think, first of all, in terms of
controlling stormwater and the effect on groundwater and
recharge, there are a couple of different things. Obviously our
green infrastructure emphasis is about when rainwater falls
capturing it instead of rushing it off to someplace else and
allowing it to percolate and operate more naturally as nature
intended it to. And that addresses not only a water quantity
problem, but it also addresses a water quality problem and has
other multiple benefits.
I think also in terms of how we look at recharge issues, we
are members of the National Drought Resilience Partnership, and
as is the Department of the Interior and the U.S. Geological
Survey, but I will make sure that your point gets taken back to
them, and we will get back to you in terms of what may be
ongoing or what suggestions you may have.
I also would want to make the point that water reuse and
recycling activities, we know that they have been long ongoing
in the West. We know that there is even a greater interest in
that now. As part of our development of the Clean Water Rule,
we heard from a lot of western interests who wanted to know
``if I have constructed recharge facilities or transportation
facilities associated with reuse and recycling and how might
those be affected by the Clean Water Rule.''
And we want to make sure that we get an answer to that
question in a way that allows communities to engage in the kind
of recycling and reuse of water which we all know they need to
engage in and they want to engage in.
Then in terms of some of the limitations, our agency has
been cut back. There is no doubt about it. We are now looking
at an agency that is substantially below its funding levels
both in terms of the money that we have available to us to
share with States, tribes, and localities, but also to do our
basic work.
And there are shortcomings in our ability to develop ways
to protect human health and the environment, and yet what we
find is people continue to ask us for help in protecting health
and the environment. I mean good examples that we are all
familiar with, a little over a year ago when Charleston, West
Virginia, had the spill of MCHM, and I do not know what that
stands for, but when the MCHM spilled in their drinking water,
they came to EPA and said, ``We need to know what are the
health standards. Is our water safe to drink?''
We actually did not have a health standard for that
particular chemical, but we worked with the State and we worked
with the city of Charleston to make sure that the water was
safe for the people in Charleston.
Last August when the city of Toledo had harmful algal
blooms that resulted in outbreaks of microcystin and
cylindrospermopsin, and I had to learn to say that one. It is
cylindrospermopsin. The city of Toledo and the State of Ohio
said, ``EPA, we need your help.''
And so we are often the people that everybody comes to, but
it is getting harder and harder for us to maintain those kinds
of capabilities. We are in the process, for example, on harmful
algal blooms of developing health advisories because that was
one of the shortcomings. They said, ``Do you have an
advisory?'' And we said no.
There is a World Health Organization advisory, but EPA had
not developed one. So we committed resources to developing
those advisories in time for this summer's algal bloom season,
and we know algal blooms will exist. They existed the year
before in 28 States.
And so those are the kinds of things that continuing
pressure on our budget causes us to not be able to do in a
timely way.
Mrs. Napolitano. That just brings to mind that there are
agency issues that can be cooperated that work across because
of the fact that, as you have said, you did not have any
protocols for that kind of an assist. Well, we need to be able
to work across the agencies to make sure that our cities do not
have to do multiple permitting or being able to have delays or
trying to figure out what is the best way to do things.
So with that, thank you, Mr. Chair, for being so indulgent.
Mr. Gibbs. I will start with Mr. Stanislaus.
Concerning the Brownfields Executive order on the new
regulation on flood and raising it 2 to 3 feet, my question is:
is that going to eliminate any Federal dollars going to a lot
of Brownfields? Because I am thinking a lot of Brownfields are
in low lying areas close to rivers.
Have you thought about that or do you have something? Is
this Executive order going to eliminate a lot of Brownfields
redevelopment?
Mr. Stanislaus. I am not sure that I can answer that
question at this moment. I can get back to you.
Generally, the eligibility for Brownfields grants are going
to be preserved, and if a community can demonstrate that they,
in fact, have a perceived contaminated property with some
opportunity for redevelopment, they are eligible.
Mr. Gibbs. My question is if you cannot get the Brownfields
up 2 or 3 feet from the Executive order and there are no
Federal dollars that can even go in there to clean up, that is
what I am wondering, to redevelop that.
I think that is a concern I wanted to raise because that is
a possibility. That might be an issue because I am thinking
there are a lot of Brownfields that would be in that category
that could be an issue.
Mr. Kopocis, to start off, we talked about in the final
rule there is going to be a lot of clarification. I know
Administrator McCarthy said that in the joint bicameral hearing
we had. My question is: some of these clarifications, are they
going to be in the actual rule or are they going to be in the
preamble to the rule?
Mr. Kopocis. We are anticipating changes to the rule
language itself.
Mr. Gibbs. OK. Because you know if you put it in the
preamble, it does not really have any standing.
Mr. Kopocis. We understand the significance of that, sir.
Mr. Gibbs. OK. We had some discussion and questions from
other Members, and you mentioned it in your testimony about the
need to clarify types of waters covered under the act and under
this rule. Can you be more specific?
We are hearing that it is really questionable, and I am
going to give you an opportunity to define water or potential
water in detail and what is not water. That kind of seems a
little ridiculous, but under the context of this rule.
Mr. Kopocis. Well, the proposal does not include any
language to define what is water. We believe that that is
fairly well understood as to what constitutes water.
It does come up in----
Mr. Gibbs. What is ``a water''?
Mr. Kopocis. ``A water''?
Mr. Gibbs. Yes.
Mr. Kopocis. We are defining different types of waters that
we consider to be jurisdictional. The list is the current rule
and the proposed rule. A lot of that is the same. It is the
traditionally navigable waters, the territorial seas,
tributaries, which for the first time we are offering a
definition in the regulation itself of what constitutes a
tributary, to provide less discretion to the regulator as to
what they consider to be a tributary.
Because an important part of that is the distinction
between what is a tributary and what is an erosional feature. I
have spent a lot of time and the agency has heard a lot from
representatives, particularly of the agricultural community,
who are very concerned that erosional features in farm fields
would suddenly be found to be tributaries and, therefore,
jurisdiction----
Mr. Gibbs. Or as ephemerals.
Mr. Kopocis. Or as ephemeral streams, although the agencies
today do exert jurisdiction over ephemeral streams, but I think
that the key piece there is to make sure that we can specify in
the rule what constitutes a tributary and what constitutes an
erosional feature, recognizing that we do not consider
erosional features to be jurisdictional today, and we did not
propose that they would be jurisdictional in the proposal
either.
We are also looking to add language that better specifies
what constitutes an adjacent wetland or water. We think that
today the term exists in terms of adjacency, but it does not
have as much definition around it.
We proposed to look at concepts such as the flood plain and
riparian area. We received a lot of comment that the use of the
term ``flood plain'' was not specifically well defined because
in our proposal we suggested that we would look at various
sizes of flood plains depending on regional variations.
And the comment that we received is that the commenters
would prefer to see us be more definitive. Yes?
Mr. Gibbs. I will stop you there. In our previous bicameral
hearing, Administrator McCarthy said a lot of these we will
have to look at on a case-by-case basis, and I think that opens
up a lot of subjective determinations by your people out there
or the Corps people.
I will get a little specific. Grass waterways on farms that
only have water in them when it's raining, and obviously the
water flows down through the grass waterways into the ditch.
I will use an example on my farm. I have highly arable
land. It comes out of the field, goes to the grass waterway,
goes down the ravine, gets into the grow ditch and flows into
the creek, Lake Fork Creek, and then flows into the Mohican,
Muskingum, Ohio and you know the rule.
Obviously, water flows downhill. I'm a little bit concerned
the EPA could hide behind the Science Advisory Report. We
talked about the significant nexus and all that. If we all know
that water flows downhill, and I think there's a lot of ability
in discretion for the regulators to come out. Can you
categorically say that grass waterways are not waters of the
United States? Township road ditches, county road ditches, are
not waters of the United States?
Mr. Kopocis. Well, I--I can't say definitely across the
board. What I can say, because some of the questions that
you're asking would involve a possible change in what's in the
proposal, and what we might do in a final rule, but what I can
say is that you're describing a grass waterway, for example,
that you put in to conserve soils, slow down water, reduce the
pollutant impacts downstream, that occurred through no
particular fault. I mean, that's just what happened.
Mr. Gibbs. It's mother nature.
Mr. Kopocis. Yeah. It--yeah, it's mother nature. It rains,
and dirt moves. So that was the very situation that Mr. Graves
was talking about, that created southeast Louisiana.
Mr. Gibbs. Yeah.
Mr. Kopocis. So the--what we are looking at is trying to
create a balance so that we can know, is there a need for us to
say that a grass waterway is something where there needs to be
Clean Water Act jurisdiction, when in fact what it's doing is
it's offering, as a conservation measure, the very water
quality benefits that we want to encourage. And so putting more
regulation on that to discourage that kind of activity, we
think would be counterproductive to what our ultimate goals are
on water quality.
Your question in terms of ditches along a particular road.
I think that we--there was no single topic that I heard more
about than ditches. I did not realize that America was fixated
on ditches, but I now know that it is. And, but we know----
Mr. Gibbs. Especially out in western Ohio, in Paulding
County for example, where I know there's farms out there you
can go a mile, and there's less than an inch drop. So ditches
are really important for drainage. In my area, the ditches are
naturally occurring, because we're in hill country.
Mr. Kopocis. Right.
Mr. Gibbs. Appalachia foothills. So ditches are very
important. Let's talk about Paulding County, where it's flat.
The water runs off the field, into the ditch. It could take
nutrients.
Mr. Kopocis. Right.
Mr. Gibbs. We have that issue, especially in northwestern
Ohio. And of course the State EPA's heavily involved in
regulating that water. And, and my concern is we open that up
to waters of the United States, and then it opens up the
ability for the bureaucrats to come out and say that Farmer A,
Farmer B, you have to go out and get permits. So you have to
get 404s. And it doesn't help us improve that. My overwhelming
concern is when you put so much redtape bureaucracy and make
this more difficult, at some point people are just going to
throw their hands up. And we can actually go backwards.
Mr. Kopocis. Right.
Mr. Gibbs. And I think that's a point we need to remember.
Mr. Kopocis. Yes. Thank you again. And I think that we
heard that very, very clearly. And we heard that what we were
proposing to do in relation to ditches did not meet the needs
of what we were trying to accomplish or what, what made sense
from a water quality standpoint. So what we're, what we're
looking at is to see how we could make changes to the rule to
emphasize the ditches that we assert jurisdiction over today.
And those are basically two categories of ditches. Those are
the ones that are effectively channelized streams. There used
to be a stream there, but somebody came in and modified it,
straightened it, and you know, and channelized it. And I think
people have a really good sense of where those are.
I spent a lot of time, even out on farmers' fields working
with them and talking with them, since the rule came out,
meeting with them and talking about this. And my sense is that
people understand what those are. They know where their
channelized streams are. The other ones are ditches that
effectively operate as tributaries, that have the
characteristics of tributaries. And again, I think people have
a pretty good understanding.
What the Clean Water Act does not apply to today, and we're
not proposing to have it apply to, are the thousands and
thousands of miles of the ditches that you're describing in
Ohio. These are ditches that are constructed along roadways.
They provide exactly the function that they were designed to
do. They take water off of the highway, so that the highway is
safe to drive on. But they also maintain the structural
integrity of that highway, by keeping that water away from the
base and not allowing it to be harmed. The Clean Water Act does
not apply to those ditches as jurisdictional waters. We do not
look to expand the extent of the Clean Water Act, or apply the
Clean Water Act to those waters.
Mr. Gibbs. Is the rule going to really specifically say
that? Or is it going to be open-ended enough for discretion or
subjective determinations?
Mr. Kopocis. We are--it--we are looking at, what are the
opportunities for us to change the language in the rule itself
to accommodate the kinds of principles that I'm articulating.
I'm--I wish I--I realize I'm being a little obtuse.
Mr. Gibbs. Why is the EPA being unwilling to make these
revisions and come back to this committee and Members of
Congress and the public and the States, and discuss that before
they implement the final rule? Why don't they lay their cards
out and say, ``Here's the revisions we made,'' and let's have a
discussion, and make sure that's happening? Why is there an
unwillingness? Your boss, Ms. McCarthy, said, ``We're moving
ahead.'' It's not necessary to do that. Why? I don't understand
the reason for that.
Mr. Kopocis. Well, we--we believe that these issues have
been thoroughly vetted. We believe that we, we do----
Mr. Gibbs. Why are you afraid to, before you actually
implement it and you think they're vetted, put it out for 60 to
90 days? And let us see it and let us have that input.
Mr. Kopocis. Well, we believe that it's time for us to go
final with the rule, get it out there, and get it into the
public domain, so that we can provide the greater clarity and
consistency that we think a final rule can provide.
Mr. Gibbs. Well, I think that's rushing it. There's been so
many comments. I think you're also leaving the door wide open
for litigation. I think that will be coming--unless you are
actually able to make these fixes. Which I don't have a lot of
confidence that that will happen.
Mr. Kopocis. Well, we're--sir, we're pretty sure that there
will be litigation over the rule. We at EPA are, as I said, we
took special pride that the pesticide general permit is not
subject to litigation. But the--we anticipate there will. But
we think that we'll have a very strong rule that will be highly
supported by the law. Both the Clean Water Act itself----
Mr. Gibbs. OK. OK.
Mr. Kopocis. The Supreme Court and----
Mr. Gibbs. OK. I want to ask, during our bicameral hearing
in February this year, Ms. McCarthy discussed how the EPA was
still seeking, speaking to outside groups, including
municipalities, on how to improve the rule. I want to know what
is the process the EPA is following in carrying out this
activity? Who exactly is the EPA talking to during this extra-
regulatory, post-comment period?
Mr. Kopocis. Sir, it's not unusual for the agency to have
conversations with interested parties. We do not solicit
additional comment during that period. Any conversations that
we have with outside parties are docketed so that the public is
aware that we had those conversations. But if----
Mr. Gibbs. Can you identify those parties?
Mr. Kopocis. Can we identify them?
Mr. Gibbs. Who have you been speaking to?
Mr. Kopocis. Yes. We can produce that.
Mr. Gibbs. OK. Appreciate that. Thank you.
Mr. Kopocis. Yeah.
Mr. Gibbs. We've heard from numerous stakeholders that the
EPA is essentially road-testing this proposed rule and
informally implementing the new rule out in the field. Can you
describe if, you know, if the EPA has actually begun
implementing the rule, to test it? Has that been occurring or
not?
Mr. Kopocis. I am unaware that that has been occurring. As
you know, overwhelmingly, the jurisdictional determinations
under the Clean Water Act are made by the Army Corps of
Engineers. As far as EPA's action, I am unaware that we are
road-testing this rule in any fashion.
Mr. Gibbs. OK. I do have a request, and you have staff back
there, so they're ready to take notes on this request. As you
said, the EPA has done extensive outreach to the stakeholders
regarding this proposed rule. And you said you've had some 400
stakeholder meetings around the country. And I've got some
specific requests on--obviously you'll have to get back with
me--your staff can--with a written response.
But please identify each of the stakeholder meetings that
was held, including the date and location at which they were
held. Provide a complete list of the Federal agencies, being
the EPA, the Corps, and any other agencies and Federal
contractor participants at each stakeholder meeting. Identify
all the stakeholders who participated in each stakeholder
meeting. Provide all handouts and other presentation materials
from each stakeholder meeting. And provide all transcripts,
official notes, assessments, reports, papers, and other records
of each stakeholder meeting, for the proceedings and outcomes.
And finally, identify the amount of staff time, travel costs
and other expenses incurred by the agencies for each of the
stakeholder meetings. I'm trying to get a depth.
You're saying that there's been an extensive outreach. And
we hear otherwise. We want to see some documentation on that.
Earlier in our discussion we talked about the comment period.
And the substantive, or you say, unique comments. And I'd like
to have documentation of the 19,000 that you think are unique,
how many are for or against. And so we'd like to see a
breakdown of that. And so we'll know our specificity on the
comments.
The Small Business Administration's Office of Advocacy,
SBA, recently concluded that the EPA and the Corps have
improperly certified the proposed waters of the U.S. rule,
under the Regulatory Flexibility Act, because it would have
direct significant effects on small entities, and recommended
that the agencies withdraw the rule. And that the EPA conduct a
Small Business Advocacy review panel before proceeding any
further with this rulemaking. Furthermore, the Small Business
Administration, along with many governmental and private
stakeholders concluded that EPA and the Corps conducted a
flawed economic analysis of the proposed rule. The analysis has
ignored the impact of the rule. The Clean Water Act's
regulatory programs do not adequately evaluate impacts of the
proposed rule. What is the EPA's response to the SBA's Office
of Advocacy's comments on the proposed rule?
Mr. Kopocis. Well, in terms of our, our comments, of course
we did discuss the compliance with the Regulatory Flexibility
Act, with the Small Business Administration's Office of
Advocacy. And this was, we talked about earlier, we did not
agree as to whether we needed to convene a panel under SBREFA
to review it. We did, however, reach out to the small business
community, with the assistance of the Small Business
Administration's Office of Advocacy, to put together a panel,
before the rule went out. Which it--they were very careful.
They said that they did not consider that compliance from their
perspective with the Regulatory Flexibility Act, but they did
assist us in putting together a panel.
Mr. Gibbs. OK. And where----
Mr. Kopocis. Which we----
Mr. Gibbs. Where is the documentation on the responses back
and forth from them?
Mr. Kopocis. On?
Mr. Gibbs. With the Small Business Advocacy review, do you
have documentation of the responses that----
Mr. Kopocis. I'll have to check if there was something
specifically responding to them.
Mr. Gibbs. OK.
Mr. Kopocis. There is an analysis of our certification
under the Regulatory Flexibility Act. It's included in the
preamble to the proposal. And then, and then we also, after the
rule went out, during the period of comment----
Mr. Gibbs. I guess the documentation would be the meetings
that were held and discussions.
Mr. Kopocis. We'd be able to get you the dates and that.
Mr. Gibbs. Yeah. OK.
Mr. Kopocis. Then what, during the public comment period,
we then reached out to the Small Business Administration's
Office of Advocacy again, and asked them if they would convene
another meeting, which they did, under the same circumstances.
They made clear that they did not consider that in compliance
of their position related to the Regulatory Flexibility Act,
but they convened another small business--another meeting of
small business interest, which I personally participated in. I
don't remember--that's--I'm thinking it was like June or July,
but we'll get you the exact date of that meeting. And to the
extent we have a list of participants, we will get you that.
We'll get you everything we have on that.
Mr. Gibbs. OK.
Mr. Kopocis. So we had done that. And then in a lot of the
meetings that the 400-plus meetings that you asked about
earlier, a significant number of the participants were of
course representatives of small businesses as well.
Mr. Gibbs. OK. Kind of changing the subject matter. Can you
give me an update on the implementation of the WIFIA program?
Mr. Kopocis. Thank you. In the WIFIA program, we began last
summer, shortly after Congress enacted the program, a series of
stakeholder meetings across the country to hear from people
what their thoughts were. In fact, I should say, even before
that, when the staff came in and we chatted about it, my
reaction was, ``We don't have any money to do this, but I can
assure you that Congress isn't going to want us to sit around
and wait until there's a special appropriation to fund us.'' So
we reached out to stakeholders. We also reached out to the
Federal Highway Administration.
Mr. Gibbs. Yeah.
Mr. Kopocis. Because of course it's modeled after----
Mr. Gibbs. After TIFIA, right?
Mr. Kopocis. Right. So not, you know, not trying to start
with a blank sheet of paper. That was my first reaction, based
on having been around for TIFIA. I said, ``Talk to the Federal
Highway Administration. How did they do it? How did they set it
up?'' So we--we had extensive conversations with them, which
were very useful, in how to set that up. We then had available
to us, Congress provided us with up to $2.2 million during this
fiscal year, to look at standing up that program, and getting
it ready. And the--and the budget requests for 2016 asked for
another $5 million dollars, so that if it is funded, we will be
ready to go.
Mr. Gibbs. Because I really pushed hard for that. When
you're talking about drinking water, infrastructure, and
wastewater, and complying sewer overflows issues. And we know
that there's well over a trillion-dollar cap on costs out
there. And you can't charge the ratepayers enough to get there.
And I think this is a--if there's an opportunity for public-
private partnerships, this area has to be the most optimum
place. Because they have a revenue stream coming in from the
ratepayers. I think there's a lot of private capital out there
that's looking for a relatively safe investment and a decent
return. And I think it's safe, because if you look at this SRF
default rate, it's, it's you know, almost nonexistent.
Mr. Kopocis. Zero.
Mr. Gibbs. I think that's a good program. They can get some
private capital in there. It's a win-win for both sides. And
the villages and municipalities. And of course the WIFIA
program has an aggregation factor. So smaller entities can
participate when you aggregate. I think it was $20 million, if
I remember.
Mr. Kopocis. Projects over is it $20 million or $25
million?
Mr. Gibbs. Yeah.
Mr. Kopocis. $20 million?
Mr. Gibbs. Yeah. Twenty million dollars, I think, yeah.
Mr. Kopocis. Yeah.
Mr. Gibbs. I'll just encourage you. I think that's a great
program. That can really address these issues of where
villages, municipalities are struggling to get up there to
where they need to be because of growth. And a lot of times
it's growth.
Mr. Kopocis. And sir, we are working on it, very, very much
so, with the resources that Congress gave us and the resources
that we've requested. TIFIA program was enacted I think in
June. It took them about a year to get regulations out. And
they were making their first loan about a year after that. We--
we would be hopeful. I can't make a promise. But we can be
hopeful, since we're not starting with ``How do you do this?''
We have a model.
Mr. Gibbs. Yeah.
Mr. Kopocis. That we can be ready.
Mr. Gibbs. Well, I think that's a good, good approach. I
know it's a little different from TIFIA but, I think, at least
it's another integrated planning and permitting initiative,
which your predecessor, Ms. Stoner, supported. I think the EPA
does support it. I think it's supported out in the country,
because they're tied in, I believe, to the 5-year permit cycle,
correct?
Mr. Kopocis. Yes.
Mr. Gibbs. And some of this, they can't get there, because
they don't have the resources, but they have some flexibility.
And I just question the EPA says they support it. But in
practice, are they really working? And that's--we're hearing
some things, you know.
So I guess my comment is, I think there's an opportunity
there to give local governments some flexibility and get to the
goal everybody wants to get to. But it might take 7 or 8 years,
or 10 years. They might want to address an issue that is
different than another municipality's. So one-size-fits-all
policy coming out of DC. That's constraints and it isn't
really--when flexibility's the key word on that. If you just
want to comment on the integrated permitting, where we're
headed, and where we are making that work.
Mr. Kopocis. Well, we are devoting time and resources to
integrated planning. We consider it to be something that is a--
is going to be a key way for communities to come into
compliance with what they all want. And that is to make sure
that their drinking water is safe and that the water that, the
waters that they fish in, swim in and play in are safe as well.
I think that you know, we've--we've devoted resources in our
current fiscal year. We've asked for $13 million in fiscal year
2016 to really ramp up our efforts. We particularly want to
explore what are the opportunities for us to do this outside of
the enforcement context.
We have regular conversations with the--with individual
communities, but also with the representative communities.
Because I mentioned, like, the Conference of Mayors, for
example, who really want to work with us on this. And--and to
the extent we have a framework, I'd--I'd like to think that it
is really designed--it's a singular framework which has an
unlimited number of possibilities for how it is that you
develop a framework for meeting those water quality goals. This
is something that our Office of Water works very closely with
our compliance people in the Office of Enforcement and
Compliance Assurance, making sure that we can do this in a way,
again, that works for communities. We also work closely with
the Department of Justice on this quite--if you were not aware
of that. Because of course ultimately if there is an
enforcement action, it--while our offices are deeply involved,
it's the Department of Justice which is the face of the United
States. And so we are also working with them.
Mr. Gibbs. That's true. Let me stop you right there. That's
good. Because I remember when I was on the State legislature,
we had some issues with the State EPA, and sometimes they'd be
turned over to the Attorney General's Office, and they said
they couldn't discuss it anymore. And it frustrated me, because
we could simply work it out. And of course what happened to the
State EPA, in this case, this was years ago, they filed in my
rural counties, and the county lease judge threw it out. It
gets to how EPA, at the time--so it didn't do them any good,
but we can work these things out without going to litigation.
And so I think it's good if you can have the Justice Department
working in concert. And make them recognize that we're getting
there, but we got to be reasonable and pragmatic in how we get
there.
Mr. Kopocis. Correct. And that's been a key component for
us as well, is making sure that all the parties that need to be
at the table can be at the table. Make it available for them to
bring in what it is that works. And we think one of the
hallmarks of the integrated planning framework is, this isn't
us telling a community, ``This is what we think you ought to
do.'' The starting point for the integrated planning framework
is for the community to say, ``This is what we think we can
accomplish.''
Mr. Gibbs. Yeah.
Mr. Kopocis. Knowing what their responsibilities are. But
then them coming back and saying, ``This is what we think we
can accomplish in this timeframe.''
Mr. Gibbs. So do we have any of that going on, examples
that there's been some----
Mr. Kopocis. Well, one good example recently is Lima, Ohio.
The mayor of Lima, Ohio, who is one of our agency's biggest
critics, related to meeting their water quality goals and
responsibilities, is now one of our--sings praises, because of
the integrated planning framework that we were able to reach
with Lima, Ohio.
Mr. Gibbs. OK.
Mr. Kopocis. I met with him as part of a Conference of
Mayors group, 3 or 4 months ago. And he was extremely positive
about the work of our agency. And this was after many years of
him being, shall we say, much less than positive about our
agency and working with our agency.
Mr. Gibbs. I think he might have actually testified for
this committee.
Mr. Kopocis. I believe he has.
Mr. Gibbs. Twice.
Mr. Kopocis. I think he may have done it before he was
happy with us.
Mr. Gibbs. Yeah, I think so. Another question. Regulatory
consistency between EPA regents--and I know there was, in 2013
there was Iowa League of Cities received in the Eighth Circuit
Court. And this was in regard to the practice of what they call
blending. It's partially and fully treated wastewater, inside
the treatment plant, to discharge to nearby waters. And then
take that further. So there's been other court cases. It might
not always be with water. It might be with air. My overall
question is, when, I guess in these cases, the EPA lost the
case.
Mr. Kopocis. Yes, sir.
Mr. Gibbs. OK. Are they applying the court decision only in
that Federal District Circuit Court region, or are they
applying nationwide?
Mr. Kopocis. Right. The Iowa League of Cities case we are
applying the Eighth Circuit. Outside of the Eighth Circuit, we
had made a decision that we would look at the Iowa League of
Cities case, and on a case-specific basis, as it applies to a
particular community.
Mr. Gibbs. And what kind of criteria do you use to make
that determination?
Mr. Kopocis. We look at--we will look at each of the
factual circumstances as they are presented to us. We continue
to apply our rules and regulations as they are written. If a
community comes to us with a set of facts or circumstances,
where the Iowa League of Cities case could conceivably be
applicable, at least the terms of that case, then we do sit
with the community and we evaluate it on that case-specific
basis.
Mr. Gibbs. OK. Well, I want to thank you both for coming.
You did not get as many questions so I'm sure you're not
offended by that. Go ahead.
Mrs. Napolitano. Since my Chair has been very nice in
allowing me some time, I just want to thank you. There have
been many complaints sometimes in California over EPA, and EPA
has been more than generous with their time. Jared up in San
Francisco, I've had him before the Councils of Government.
They've asked direct questions. And as I was commenting to my
colleague that one-on-one works a lot because you're able to
express the actual issues that affect our communities, and I
know you do not have the staff to do it, but it's very helpful
to be able to have the understanding, and as you have gone
through your rulemaking is being able to apply some of that
minuteness, if you will, to being able to address that not only
one area may be affected, but many others may have the same
question and are unable to pose it for whatever reason.
So we thank you. You've done a great job in many of the
California areas, and we still have some issues, but I really
appreciate the job that your staff has done, and EPA continues
to be responsive, and we trust that we will continue to
safeguard our waters and our air.
Thank you so much to both of you.
Mr. Gibbs. I just want to say in closing, you know we all
want to protect the environment and clean water and do what we
can, and I think as we had so much discussion on the Clean
Water Act, we've come a long ways in four decades, I guess
since it was passed or however long it's been now, and we still
have challenges out there, and I did have one followup question
I just thought.
We were talking about the Toledo drinking water issue. I
want to just mention to you, and maybe you want to comment, the
Cleveland dredging issue in the port of Cleveland. I do not
know if you're aware or not, I've been working very hard to
make sure that dredging happens every year because it's a huge
economic impact if it doesn't happen. Thousands of jobs are at
risk, and through the Army Corps and how the EPA's had a
disagreement on that dredge material in Cleveland has been
PCB'ed contaminated, and all the years they've been putting it
in a CDF-contained landfill and the Corps has determined that
they think 80 percent of it is clean enough to open lake
disposal. The Ohio EPA says no; they won't give them the 401
water quality to do that.
So we're working through that and we're going to get the
dredging done, but it's probably not going to go out in the
lake, but the Corps did acknowledge that they would take it 9
miles out to get away from the Cleveland intake. So that
acknowledgment alone tells me that there's a problem, OK?
And the fish advisories, they have fish advisories for the
PCBs, and the Ohio EPA is concerned that if they put the dredge
material out there, there is a good possibility it could raise
the advisory from being once a month or once a week consumption
to more restrictions.
And I think this is kind of unique, the situation where we
have the Ohio EPA, a Republican administration, adamantly
opposed to open-lake disposal--and that's what they call it;
the Corps calls it open-lake placement--and then we have
disagreeing on this issue, and I think it's noticeable to me
that the U.S. EPA has not commented on this debate between the
two agencies and I do not know if you want to comment, or if
you're aware of what's going on in Cleveland.
Mr. Kopocis. Well, I am not familiar with the particular
circumstances you're describing. I am particularly with the
long history and the Great Lakes of the need for CDFs as
opposed to open-lake disposal--and that's what I grew up in
this committee calling it, it was open-lake disposal--so I am
familiar with the serious issues that can be----
Mr. Gibbs. Especially Lake Erie because it's so shallow and
so sensitive.
Mr. Kopocis. The shallowest lake with so many people that
rely on it directly for their drinking water. So I can work
with our folks in region 5 with Susan Hedman, our regional
administrator, to help get us informed. I do not know the
status of it.
Mr. Gibbs. I just want you to know I think we've been
working really hard on this. I think we're getting it worked
out, but I just thought it was kind of interesting that the
U.S. EPA was involved because you made a comment that during
the clean water drinking crisis last August that the U.S. EPA
got involved. I do not know the extent. I know the State EPA
was actually involved a lot, and one thing the State
legislature in Ohio just passed, a bill, that dredge material,
especially targeted for Toledo because there's 800,000 cubic
yards I think and it's quite a lot--it's nutrient-rich,
phosphorus especially that can cause algae--by 2022 will not be
allowed. Right now they have no place to do it.
So the challenge for the State of Ohio, the Army Corps, and
the EPA for that matter, State for sure and hopefully Federal,
is to think outside the box because I think the dredge material
can be an asset instead of a liability, but we have to think
outside the box.
And now in Cleveland, what's interesting about that, we
only have about 10 percent as much as Toledo as PCB, but there
is--one of the proposals for working on the plan to solve the
problem because they've run out of CDF space, is to take a
dryer material and rotate it out and we have a land-issue in
Cleveland, they're tearing down all the houses and they got
basements to fill, which is in close proximity to the lake
there, so that's a possibility that the port of Cleveland's
pursuing, and also ODOT has some need for it.
And another thing the port of Cleveland is doing, I have to
give them kudos, too, it's called a bed-load interceptor, they
put it up far up the Cuyahoga River past the dredge area and
try to collect the sediment that comes in. It's kind of one of
the new technologies that's going in, and everybody's
supportive of it, but we do not know how sure it's going to
work. Hopefully it would take 40 percent or more of the
dredge--the sediment that's coming in.
I want you to be aware of that because I think we have to
sometimes think outside the box and that's why I get frustrated
with the EPA. They have a tendency to be more come out with the
hammer and not work to solve some problems. And I know in the
President's budget he increased the funding for the regulatory
side, but for compliance to help solve problems the President's
budget decreased that part. So I'm a big soil and water guy and
NRCS so I think there's some things we can do.
But I just want to close here, back on the WOTUS, I think
it's loud and clear that there's a lot of problems out there
maybe you can fix in the final rule. I don't know. I don't
know. I don't have a lot of confidence, no disrespect. That
happened in the final rule. I think we need to take a pause and
go back and look at this with the States in the public forum as
I think Congress should really be doing that, and there will be
some bills offered here in the near future, both in the Senate
and in the House, I'm pretty confident of that. And we want to
make sure it's done right and not add a lot of cost to States
and local governments.
And we had, in that bicameral hearing in the second panel,
representatives from States and local governments, and there's
a concern, I'm sure you're hearing that, and we need to, as our
elected representatives and as a servant of the public that we
need to make sure that we're serving the public in the best way
we can, and we can still protect the environment and grow the
economy.
So thank you for coming and the meeting is adjourned.
[Whereupon, at 1:05 p.m., the subcommittee was adjourned.]
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