[Joint House and Senate Hearing, 114 Congress]
[From the U.S. Government Publishing Office]






IMPACTS OF THE PROPOSED ``WATERS OF THE UNITED STATES'' RULE ON STATE AND 
                           LOCAL GOVERNMENTS

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

          House Committee on Transportation and Infrastructure
                            Serial No. 114-4

                             JOINT HEARING

                               BEFORE THE

             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
                     U.S. HOUSE OF REPRESENTATIVES

                                AND THE

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                            FEBRUARY 4, 2015

                               ----------                              

                       Printed for the use of the
      House Committee on Transportation and Infrastructure and the
            Senate Committee on Environment and Public Works


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








 IMPACTS OF THE PROPOSED ``WATERS OF THE UNITED STATES'' RULE ON STATE 
                         AND LOCAL GOVERNMENTS

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

          House Committee on Transportation and Infrastructure
                            Serial No. 114-4

                             JOINT HEARING

                               BEFORE THE

             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
                     U.S. HOUSE OF REPRESENTATIVES

                                AND THE

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 4, 2015

                               __________

                       Printed for the use of the
      House Committee on Transportation and Infrastructure and the
            Senate Committee on Environment and Public Works


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



         Available online at: http://www.gpo.gov/fdsys/browse/
        committee.action?chamber=house&committee=transportation
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          HOUSE 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

            SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska
                                ------                                
                 RYAN JACKSON, Majority Staff Director
               BETTINA POIRIER, Democratic Staff Director
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................   vii

                               WITNESSES
                                Panel 1

Hon. Gina McCarthy, Administrator, U.S. Environmental Protection 
  Agency:

    Testimony....................................................     7
    Prepared statement...........................................   124
    Responses to questions for the record from:
        Majority side Committee on Transportation and 
          Infrastructure.........................................   133
        Hon. Richard L. Hanna, a Representative in Congress from 
          the State of New York..................................   143
        Hon. Sam Graves, a Representative in Congress from the 
          State of Missouri......................................   146
        Hon. John Katko, a Representative in Congress from the 
          State of New York......................................   148
        Hon. Barbara Comstock, a U.S. Representative from the 
          Commonwealth of Virginia...............................   151
Hon. Jo-Ellen Darcy, Assistant Secretary of the Army (Civil 
  Works):
    Testimony....................................................     7
    Prepared statement...........................................   152
    Responses to questions for the record from:

        Majority side Committee on Transportation and 
          Infrastructure.........................................   160
        Hon. Barbara Comstock, a U.S. Representative from the 
          Commonwealth of Virginia...............................   167

                                Panel 2

Hon. E. Scott Pruitt, Attorney General, State of Oklahoma:

    Testimony....................................................    69
    Prepared statement...........................................   169
    Responses to questions for the record from Hon. Barbara 
      Boxer, a U.S. Senator from the State of California.........   172
Hon. Adam H. Putnam, Commissioner of Agriculture, State of 
  Florida, and on behalf of the National Association of State 
  Departments of Agriculture:

    Testimony....................................................    69
    Prepared statement...........................................   173
    Responses to questions for the record from Hon. Barbara 
      Boxer, a U.S. Senator from the State of California.........   176
Hon. Sallie Clark, Commissioner, District 3, El Paso County, 
  Colorado, on behalf of the National Association of Counties:

    Testimony....................................................    69
    Prepared statement...........................................   177
    Responses to questions for the record from Hon. Barbara 
      Boxer, a U.S. Senator from the State of California.........   218
Hon. Timothy Mauck, Commissioner, District 1, Clear Creek County, 
  Colorado:

    Testimony....................................................    69
    Prepared statement...........................................   219
Lemuel M. Srolovic, Bureau Chief, Environmental Protection 
  Bureau, Office of New York State Attorney General Eric T. 
  Schneiderman:

    Testimony....................................................    69
    Prepared statement...........................................   223
    Responses to questions for the record from Hon. Barbara 
      Boxer, a U.S. Senator from the State of California.........   236

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Hon. Cory A. Booker, a U.S. Senator from the State of New Jersey.    89
Hon. Benjamin L. Cardin, a U.S. Senator from the State of 
  Maryland.......................................................    90
Hon. Sam Graves, a U.S. Representative from the State of Missouri   122

                       SUBMISSIONS FOR THE RECORD

Hon. James M. Inhofe, a U.S. Senator from the State of Oklahoma, 
  submission of comments to Gina McCarthy, Administrator, U.S. 
  Environmental Protection Agency, and Maj. Gen. John Peabody, 
  Deputy Commanding General, Civil and Emergency Operations, U.S. 
  Army Corps of Engineers, from the following members of the 
  Office of Advocacy of the U.S. Small Business Administration: 
  Winslow Sargeant, Ph.D., Chief Counsel for Advocacy; Kia 
  Dennis, Assistant Chief Counsel; and Stephanie Fekete, Legal 
  Fellow; October 1, 2014........................................   239
Senator Boxer, submission of the following documents:

    Letters of support for the proposed ``waters of the United 
      States'' rulemaking from the following entities:

        America's Great Waters Coalition.........................   249
        American Fisheries Society, et al. (Consortium of Aquatic 
          Science Societies).....................................   254
        American Public Health Association, et al................   258
        American Rivers, et al. (Choose Clean Water Coalition)...   259
        American Sustainable Business Council....................   263
        Association of State Floodplain Managers, Inc............   266
        Healing Our Waters-Great Lakes Coalition.................   277
        Outdoor Alliance and Outdoor Industry Association........   283
        Rural Coalition, et al...................................   287
        Society of Wetland Scientists............................   292
        U.S. Shorebird Conservation Partnership..................   300
        Alaska Independent Fishermen's Marketing Association.....   302
        EPA Region 10 Tribal Operations Committee................   303
        Alabama Rivers Alliance..................................   307
        California Association of Sanitation Agencies............   311
        California State Water Resources Control Board...........   317
        Golden Gate Salmon Association...........................   327
        Forty-three Colorado elected officials...................   329
        Seventy-four Pennsylvania nongovernmental organizations..   332
        Council of the City of Philadelphia, Resolution No. 
          140541.................................................   338
        League of Women Voters of Pennsylvania...................   342
        Additional letters of support submitted by Senator Boxer 
          are available at the Government Publishing Office's 
          Federal Digital System (FDsys.gov) at https://
          www.gpo.gov/fdsys/pkg/CPRT-114JPRT95074/pdf/CPRT-
          114JPRT95074.pdf on pages 1-1022
    Press Release, American Sustainable Business Council, ``Small 
      Business Owner Speaks Out for Strong Clean Water Rules in 
      Advance of Joint Congressional Hearing,'' February 3, 2015.   344
Congressman Shuster, submission of the following document 
  referenced by Hon. Bob Gibbs, a Representative in Congress from 
  the State of Ohio: a Department of the Army work permit issued 
  to a Tennessee resident........................................   346
Hon. Eleanor Holmes Norton, a Delegate in Congress from the 
  District of Columbia, submission of comments to Water Docket, 
  U.S. Environmental Protection Agency, from Keith A. Anderson, 
  Director, District Department of the Environment, November 3, 
  2014...........................................................   371
Hon. Sheldon Whitehouse, a U.S. Senator from the State of Rhode 
  Island, submission of the following documents:

    Letter to Massachusetts and Rhode Island congressional 
      delegations, from John Troiano, Council Chair, 
      Massachusetts and Rhode Island Council of Trout Unlimited, 
      January 29, 2015...........................................   374
    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency, and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army, from 
      Peter F. Kilmartin, Rhode Island Attorney General, et al., 
      September 16, 2014.........................................   375
Hon. Eddie Bernice Johnson, a Representative in Congress from the 
  State of Texas, submission of the following documents:

    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency, and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army, from 
      Texas State Representative Roberto Alonzo, District 104, et 
      al., November 14, 2014.....................................   379
    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency; Water Docket, U.S. Environmental 
      Protection Agency; and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army; from Dan 
      Kocurek, President, Arlington Conservation Council, et al., 
      November 14, 2014..........................................   382
    U.S. Environmental Protection Agency, Office of Research and 
      Development, EPA/600/R-14/475F, ``Connectivity of Streams 
      and Wetlands to Downstream Waters: A Review and Synthesis 
      of the Scientific Evidence,'' Executive Summary, January 
      2015.......................................................   386
    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency, from Dr. David T. Allen, Chair, Science 
      Advisory Board, and Dr. Amanda D. Rodewald, Chair, Science 
      Advisory Board Panel for the Review of the EPA Water Body 
      Connectivity Report, October 17, 2014......................   404
Hon. John Boozman, a U.S. Senator from the State of Arkansas, 
  submission of posting of Nancy Stoner, Acting Administrator for 
  Water, U.S. Environmental Protection Agency, to EPA Connect, 
  The Official Blog of EPA's Leadership, http://blog.epa.gov/
  epaconnect/, June 30, 2014.....................................   407
Hon. Grace F. Napolitano, a Representative in Congress from the 
  State of California, submission of the following documents:

    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency, and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army, from 
      Thomas Howard, Executive Director, California State Water 
      Resources Control Board, November 14, 2014; this document 
      was also submitted by Senator Boxer on p. 317
    Letter to Senator Inhofe, Senator Boxer, Congressman Shuster, 
      and Congressman DeFazio, from David R. Williams, President, 
      California Association of Sanitation Agencies, January 30, 
      2015.......................................................   408
    Press Release, American Sustainable Business Council, 
      ``Business Leaders Question SBA Advocacy's Comments on 
      EPA's Water Rule,'' October 2, 2014........................   412
Hon. Donna F. Edwards, a Representative in Congress from the 
  State of Maryland, submission of the following documents:

    City of Baltimore, Council Bill 14-0185R, (Resolution), In 
      Support of the Definition of ``Waters of the United 
      States'' Under the Clean Water Act Proposed by the U.S. 
      Environmental Protection Agency and the U.S. Army Corps of 
      Engineers, September 8, 2014...............................   414
    Resolution of the Mayor and Council of the City of College 
      Park, Maryland, In Support of the U.S. Environmental 
      Protection Agency and U.S. Army Corps of Engineers Proposed 
      Definition of ``Waters of the United States'' Under the 
      Clean Water Act, 14-R-32, October 14, 2014.................   416
    Resolution of the Town of Capitol Heights, Maryland, for the 
      Support of the U.S. Environmental Protection Agency and 
      U.S. Army Corps of Engineers Proposed Definition of 
      ``Waters of the United States'' Under the Clean Water Act, 
      Resolution 2014-13, October 14, 2014.......................   417
    Mayor and Town Council of Edmonston, Maryland, Resolution in 
      Support of the U.S. Environmental Protection Agency and 
      U.S. Army Corps of Engineers Proposed Definition of 
      ``Waters of the United States'' Under the Clean Water Act, 
      Resolution 2014-03, October 14, 2014.......................   420
    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency, and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army, from 
      Jacqueline Goodall, Mayor, Town of Forest Heights, 
      Maryland, October 20, 2014.................................   421
    Town of Forest Heights, Maryland, Resolution Supporting the 
      U.S. Environmental Protection Agency and U.S. Army Corps of 
      Engineers Proposed Definition of ``Waters of the United 
      States'' Under the Clean Water Act, Resolution 67-14, 
      November 3, 2014...........................................   423
    City of Mount Rainier, Maryland, Resolution in Support of the 
      U.S. Environmental Protection Agency and U.S. Army Corps of 
      Engineers Proposed Definition of ``Waters of the United 
      States'' Under the Clean Water Act, Resolution 13-2014, 
      November 5, 2014...........................................   425
    City of New Carrollton, Maryland, For the Purpose of 
      Resolving To Support the U.S. Environmental Protection 
      Agency and U.S. Army Corps of Engineers Proposed Definition 
      of ``Waters of the United States'' Under the Clean Water 
      Act, Resolution 13-07, October 15, 2014....................   427
    Letter to Water Docket, U.S. Environmental Protection Agency, 
      from Bridget Donnell Newton, Mayor, City of Rockville, 
      Maryland, et al., October 15, 2014.........................   429
    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency; Water Docket, U.S. Environmental 
      Protection Agency; and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army; from 
      Paul Pinsky, Maryland State Senate, 22nd Legislative 
      District, et al., November 14, 2014........................   431
    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency; Water Docket, U.S. Environmental 
      Protection Agency; and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army; from Jon 
      Zerwitz, Cofounder, Union Craft Brewing Co., November 14, 
      2014.......................................................   435
    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency; Water Docket, U.S. Environmental 
      Protection Agency; and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army; from 
      Hugh Sisson, Founder, Heavy Seas Brewing Co., November 14, 
      2014.......................................................   437
    Letter to Gina McCarthy, Administrator, U.S. Environmental 
      Protection Agency; Water Docket, U.S. Environmental 
      Protection Agency; and Jo-Ellen Darcy, Assistant Secretary 
      of the Army (Civil Works), Department of the Army; from 
      Thomas Durst, Owner, Hereford Bed & Biscuit, November 14, 
      2014.......................................................   439
Hon. Deb Fischer, a U.S. Senator from the State of Nebraska, 
  submission of Comments to the Definition of ``Waters of the 
  United States'' Under the Clean Water Act, 79 Fed. Reg. 22188, 
  from the League of Nebraska Municipalities, April 21, 2014.....   441
Hon. Dina Titus, a Representative in Congress from the State of 
  Nevada, submission of the following documents:

    Letter to Water Docket, U.S. Environmental Protection Agency, 
      from Gale Wm. Fraser II, P.E., Chief Engineer/General 
      Manager, Clark County Regional Flood Control District, 
      October 27, 2014...........................................   456
    Letter to Water Docket, U.S. Environmental Protection Agency, 
      from Thomas Minwegen, Chairman, Las Vegas Valley Watershed 
      Advisory Committee, October 20, 2014.......................   460
Hon. Lou Barletta, a Representative in Congress from the State of 
  Pennsylvania, submission of letter to Donna Downing, 
  Jurisdiction Team Leader, Wetlands Division, U.S. Environmental 
  Protection Agency, from the Commissioners of Columbia County, 
  Pennsylvania: Chris E. Young, Richard C. Ridgway, and David M. 
  Kovach, October 15, 2014.......................................   462

                        ADDITIONS TO THE RECORD

Additions to the record are available at the Government 
  Publishing Office's Federal Digital System (FDsys.gov) at 
  https://www.gpo.gov/fdsys/pkg/CPRT-114JPRT95074/pdf/CPRT-
  114JPRT95074.pdf on pages 1023-1128
  
  
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
 
 IMPACTS OF THE PROPOSED ``WATERS OF THE UNITED STATES'' RULE ON STATE 
                         AND LOCAL GOVERNMENTS

                              ----------                              


                      WEDNESDAY, FEBRUARY 4, 2015

             U.S. House of Representatives,
    Committee on Transportation and Infrastructure,
                                     joint with the
                                               U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committees met, pursuant to call, at 10:06 a.m., in 
Room HVC-210, Capitol Visitor Center, Hon. Bill Shuster 
(Chairman of the Committee on Transportation and 
Infrastructure) presiding.
    Mr. Shuster. The hearing will come to order.
    I want to first take the opportunity to welcome everybody 
here today and especially our witnesses, Administrator McCarthy 
and Assistant Secretary Darcy. Thanks for being here today.
    And, again, welcome to the ``waters of the United States,'' 
the proposed rule, on how it is going to work with State and 
local governments.
    Before we get started, I would like to explain how we will 
begin our hearing today. And, first of all, full disclosure: I 
have never run a bicameral hearing before today. So if I 
stumble and bumble a little bit, please bear with me.
    As I mentioned, on the House side, when the gavel goes 
down, everybody's name has been logged in, and we will go in 
the order of seniority if you were here at the gavel. The 
Senate will follow with Chairman Inhofe's direction.
    Opening statements will be limited to 5 minutes, and there 
will just be four: both full committee chairs and both full 
committee ranking members. Other Members wishing to make 
statements may use their questioning time to do so, or they can 
have their statements entered into the record.
    There will be a single round of questioning on each panel. 
We have two panels. The 5-minute rule will be strictly 
enforced. I have a quick gavel hand, so when you hear me 
tapping, please wrap up. Please try to watch.
    Again, there is a lot of interest here today. There were 59 
members of our committee, which is the entire committee, who 
said they will be attending today. I believe all the Senators 
also said they would be, so potential for 79 people to be here 
asking questions. So, again, I would encourage you to watch the 
time so I don't have to gavel you down.
    Again, Members will be recognized--we will be alternating 
between the Senate and the House, Republicans and Democrats--
Senate Republican, House Republican, Senate Democrat, House 
Democrat. That doesn't sound like the way we worked it out. I 
will figure it out as we go along.
    OK. Again, as I mentioned, Members arriving for the gavel 
will be recognized first, and those that arrived after the 
gavel will be put in the queue.
    Again, I want to thank Senator Inhofe and Senator Boxer for 
agreeing to hold this bicameral hearing. Senator Boxer has 
experience with this. We held a bicameral hearing in Los 
Angeles that I took part in a couple years ago. So she is the 
pro at this.
    As we all know, last April, the administration proposed a 
rule that would expand the reach of the Federal Government 
under the Clean Water Act. This proposal is troubling for a 
variety of reasons, but I will sum up my biggest concerns.
    The rule undermines the Federal-State partnership under the 
Clean Water Act. This partnership is the basis of the act's 
success over the last four decades in improving our water 
quality. Let me repeat again: Our water quality has continued 
to improve over the last four decades. And Republicans as much 
as Democrats, people at the Federal level as much as State and 
local, care about clean water deeply. And that is a positive 
thing, that we have seen our water continue to become cleaner 
and cleaner.
    Many States and local governments, including my State of 
Pennsylvania, are objecting to this erosion of the partnership 
and the authority. This rule wrongly assumes that States and 
local governments, including Pennsylvania, don't know how or 
don't care about protecting the waters. And, as I mentioned, I 
think we all deeply care about that.
    And while the agencies have had an opportunity to develop a 
reasonable rule, they instead chose to write the proposed rule 
vaguely in order to give the Federal regulators free rein to 
claim Federal jurisdiction over most any water or wet area.
    This rule was developed by the administration without 
consulting State and local authorities, without considering 
their rights, their responsibilities, their liabilities, and 
their budgets, and without realistically examining the 
potential economic and legal impacts on agriculture and other 
stakeholders.
    If this rule goes into effect, it will open the door for 
the Federal Government to regulate just about anyplace where 
water collects and, in some cases, regulate land use 
activities. This will cause serious consequences for the 
economy. It will threaten jobs and result in costly litigation. 
It will negatively impact businesses, farmers, homes, 
roadbuilders, and other job creators. And, most importantly, it 
will negatively impact hardworking, middle-class Americans.
    It will trample the rights of State and local governments 
and their ability to make economic development decisions and, 
more importantly, public safety decisions. It will restrict the 
rights of private citizens to decide what they do on their own 
land.
    Make no mistake, as I said, it will hurt the middle class, 
driving up the cost of food, driving up the cost to own a home. 
And, again, hardworking, middle-class Americans will be 
affected.
    This rule is an end-run around Congress and another example 
of overreach by the administration. It was twice rejected by 
Democratic majorities. It was twice rejected by the Supreme 
Court. This proposal tries to force Federal control over the 
lives of our citizens, and not all water needs to be subjected 
to Federal jurisdiction. States should have primary 
responsibility for regulating waters within their individual 
boundaries.
    Instead of racing to pass down another Federal edict, these 
agencies should collaborate with the States and local 
governments and other affected stakeholders.
    I am pleased that we are having this hearing today.
    And, once again, I want to make note to my colleagues that 
the 5 minutes just expired and I am finished with my statement. 
So, with that, I would now like to recognize Chairman Inhofe 
for an opening statement.
    Senator Inhofe. Thank you, Chairman Shuster.
    It is an honor to be here with our witnesses also.
    I have a number of the same concerns that you do and that 
you stated in your opening statement, which I will not be 
redundant, but my concerns stem not only from the substance of 
the rule but also from the thought process employed by your 
agencies in developing it, I say to Ms. McCarthy.
    And let me also make this statement too. The other day, 
Senator Boxer and I, we remembered, recalled, that the Clean 
Air Act was successful, that we were both in the House at that 
time, and we both were cosponsors of the amendments of 1990, 
was it?
    Senator Boxer. Uh-huh.
    Senator Inhofe. And so we have had successes. But we have 
some problems right now that we are looking at that do concern 
me.
    First, I take issue with the fact that the proposed rule, 
if finalized, would significantly expand Federal authority 
under the Clean Water Act beyond what was intended both by the 
act and by the amendments. Agencies can only carry out the 
authority that Congress gives them; they can't create it 
unilaterally. And that is what I believe is happening now.
    I am troubled by the fact that, for many years, the EPA and 
the Corps have embarked on what seems to be a relentless quest 
to expand the definition of ``waters of the United States'' 
and, therefore, Federal authority under the Clean Water Act. 
This agenda has been advanced in individual permit decisions by 
the Corps districts across our country.
    But the Supreme Court drew the line when you tried to claim 
jurisdiction over isolated ponds and wetlands because birds 
could fly there and again when you tried to claim jurisdiction 
over wetlands adjacent to ditches and dry channels. The Supreme 
Court expressly rejected broad assertions over regulatory 
authority and made it clear that all water is not subject to 
Federal jurisdiction under the Clean Water Act.
    Instead of respecting these limits on your authority, you 
then tried to memorialize the most extreme examples of 
bureaucratic overreach, first in the 2011 guidance document and 
now in this proposed rule.
    If this rule is finalized without change, few water bodies 
and, indeed, few areas of land would escape the regulatory grip 
of the Federal Government, an outcome the Supreme Court deemed 
unlawful and impermissible.
    We all remember what happened in other efforts 
legislatively. They made an effort to try to change this and, 
at that time, take the word ``navigable'' out. As I recall, 
that was Senator Feingold and Congressman Oberstar. We defeated 
their efforts. In fact, they were both defeated at the polls 
shortly after that.
    So I think that this is an issue that certainly has 
everyone's attention, and I think it is really wise to have 
this first hearing. This is the first time I remember in 8 
years that we have had a joint hearing, but it is that 
significant.
    Now, granted, I am from a rural State, I am from a farm 
State, and they are very much concerned, in an arid State like 
Oklahoma, that we could end up with jurisdiction of the Federal 
Government coming in and doing things that are very punitive. 
And we are going to do everything we can to see that that 
doesn't happen.
    So I thank you for joining us and having this as a joint 
hearing today.
    Mr. Shuster. Thank you, Mr. Chairman.
    And, with that, we will recognize Mr. DeFazio for an 
opening statement.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Broadly, we are here because I remember this, and many of 
the Members sitting on this panel are old enough to remember 
this: The Cuyahoga River actually burned. They used to have 
signs on the bridges, ``Do not throw lighted object from 
bridge. Flammable object below.'' That is good.
    So, you know, we passed the Clean Water Act. Good start, 
based strongly in 20th-century, mid-20th-century science. But 
Congress has failed to revisit the Clean Water Act meaningfully 
since 1987. Science has advanced. Our understanding of waters 
and their value and their permeability over artificial 
boundaries between States has grown during that time period. 
Yet Congress hasn't acted.
    The Supreme Court has. We have confusing, conflicting 
guidance, a 4-1-4 decision by the Supreme Court. They basically 
begged Congress to act or the agencies to clarify when they put 
forward that ruling.
    Yet what we have had is, you know, we had the Bush 
administration attempting to put forward guidance, 2003 and 
2008. And their guidance was said to be, quote, ``a hodgepodge 
of ad hoc and inconsistent jurisdictional theories.'' That was 
a comment by the Farm Bureau at the time.
    I think their guidance failed on two counts. One is to give 
us the protections we need and, secondly, to give us the 
regulatory certainty that the economy needs and those who are 
working in and around waters of the U.S. Failed on both counts. 
I think there is some agreement on that, yet last year the 
House passed a bill that would have locked us into the 2003/
2008 guidance forever. No changes could be made, no matter what 
was brought forward.
    And that is what brings us here today. The issue is, was 
the rule as proposed initially confusing? Yes. Did it raise 
concerns, tremendous concerns? Yes. They have had about 1 
million comments. The question is, what has happened since? Has 
the Agency heard from those million comments? Have they 
clarified? Have they modified it? I hear they have and they are 
working on that, and yet there are some who want to bring that 
process to a halt before it is mature.
    If the Agency goes forward with a rule and it is not 
stopped by Congress--Congress has many tools at its disposal, 
including the 60-day regulatory review process where, if it is 
found to be objectionable, Congress can register its objections 
by overturning the rule. Or we have other tools at our 
disposal.
    But I believe we should let the Agency go forward. I 
believe they have heard the concerns. I mean, I am going to be 
questioning on the issues of ditches, on the issues of 
agriculture practices and erosional features and those sorts of 
things. Have those things been clarified?
    You know, I believe that, in acting, they need to do three 
things: It should be conducted more transparently. They should 
post all the comments that have been submitted. They should 
continue to meet with stakeholders. The final rule should be 
guided by science and the law. It should not expand Federal 
authority over waters never before covered by this act. And, 
third, they need to move quickly to end the confusion and the 
uncertainty and get the rule out.
    So I think what we are here today is to figure out if they 
are on that path or not. And if they are on that path, I 
believe we should let them proceed. If they are not, then 
perhaps further action is warranted.
    Thank you, Mr. Chairman.
    Mr. Shuster. Thank you, Mr. DeFazio.
    Now I will recognize Senator Boxer.
    Senator Boxer. Thank you so much, Mr. Chairman, for this 
joint hearing, where I think if everyone shows up maybe half 
the Congress will be here. It is great for me to be with my 
House colleagues. I served proudly there for 10 years. I have 
the ultimate respect for the House as well as, of course, for 
the Senate.
    Mr. Chairman, as you know, I have been around a while. I 
have never had a constituent of either party come up to me and 
say, Barbara--or Senator Boxer, depending on how well they knew 
me--Barbara, the water is too clean, you know, the air is too 
pure. Never. On the contrary, they want their families 
protected. And this goes for people of every party. And it has 
been kind of my mantra for so many years to protect them.
    And I want to remind folks that the Senate committee is 
called the Environment and Public Works Committee, not the 
anti-environment public works committee. And so my concern here 
today is that we are focusing on the wrong thing. I want to 
focus on what we need to do to keep our families safe.
    We heard eloquently from all my colleagues. Congressman 
DeFazio reminded us that a long time ago, decades ago, the 
Cuyahoga River in Cleveland was on fire. Lakes were dying from 
pollution. Why do you think Congress, in the most bipartisan 
way, passed the Clean Water Act? Because the people demanded 
it.
    And, unfortunately, the beat goes on. Even with our 
landmark laws--and my colleague is correct. We agree that the 
Clean Air Act was successful. He doesn't love it so much now, 
but he liked it then, and I liked it then. And I think we need 
to keep on top of the challenges.
    Let me tell you one. Recent events in Toledo, Ohio, on the 
shores of Lake Erie remind us that the battle to protect our 
Nation's water continues. Last summer, a half-million Toledo 
residents went without drinking water for days because nutrient 
pollution washed into Lake Erie, causing toxic algae to bloom. 
Because what happens is what goes on upstream and flows into 
our recreational lakes and our drinking water is what this rule 
is all about, how do we protect that water.
    Now, 1 in 3 Americans, 117 million people, get some or all 
of their drinking water from water systems that rely, in part, 
on small streams, including many that may not flow year-round.
    The point is, what we do here--and I want to compliment the 
Obama administration, represented ably by two fantastic women, 
I might say--what they are doing is in the tradition of 
bipartisanship. Because when you look back, defending our 
waterways from pollution used to be bipartisan. The Reagan 
administration and the George W. Bush administration defended 
the broad scope of the Clean Water Act before the Supreme 
Court. And, for decades, Members of both parties understood 
that wetlands, lakes, and small streams are interconnected and 
water pollution must be controlled at its source.
    This is not hyperbole. I would not be here were it not for 
Republicans in my State who support a clean environment. That 
is the truth.
    Now, I guess what I need to tell you is that a variety of 
stakeholders support the proposed clean water rule. A September 
2012 poll found that, regardless of political affiliation, 79 
percent of hunters and anglers favor restoring Clean Water Act 
protections to wetlands and waterways, including smaller creeks 
and streams. A 2014 poll found 80 percent of small-business 
owners support protections for upstream headwaters and wetlands 
in the proposed clean water rule.
    There has been a lot of misinformation. When I heard my 
colleagues say, ``Oh, my God, the Obama administration wants to 
protect a puddle,'' I thought, ``That can't be.'' Well, it 
isn't. You don't, at all. A puddle, swimming pools, stock ponds 
are not regulated. We know that for a fact. And isolated ponds 
that were mentioned by my friend, my dear friend Senator 
Inhofe, they are not involved in this at all.
    So let's set aside fact from fiction. Let's work together 
on a rule that makes sense. So many people have spoken and 
given their opinions. I have it in this testimony, which I ask 
unanimous consent to include in the record.
    Mr. Shuster. With no objection, so ordered.
    [The collection of op-eds and articles submitted by Senator 
Boxer is available at the Government Publishing Office's 
Federal Digital System (FDsys.gov) at https://www.gpo.gov/
fdsys/pkg/CPRT-114JPRT95074/pdf/CPRT-114JPRT95074.pdf on pages 
1-83.]
    Senator Boxer. And I am going to ask about some of their 
comments.
    But it is time to restore much-needed certainty, 
consistency, and effectiveness to the Clean Water Act and put 
our Nation back on track toward clean and healthy waters for 
every one of our constituents.
    Thank you very much.
    Mr. Shuster. I thank the Senator.
    And, again, it is my pleasure to welcome our first panel 
again. Today, it is the Honorable Gina McCarthy, who is the 
Administrator of the U.S. Environmental Protection Agency, and 
the Honorable Jo-Ellen Darcy, Assistant Secretary of the Army 
for Civil Works.
    I ask unanimous consent that our witnesses' full statements 
be included in the record.
    Without objection, so ordered.
    And since your full statements are part of the written 
testimony, I would ask you to limit your testimony today to 5 
minutes.
    And, with that, Administrator McCarthy, you may proceed.

     TESTIMONY OF HON. GINA MCCARTHY, ADMINISTRATOR, U.S. 
   ENVIRONMENTAL PROTECTION AGENCY; AND HON. JO-ELLEN DARCY, 
         ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS)

    Ms. McCarthy. Good morning, Chairman Inhofe, Ranking Member 
Boxer, Chairman Shuster, Ranking Member DeFazio, and members of 
both committees. I am very pleased to be here to testify with 
Assistant Secretary Jo-Ellen Darcy to discuss EPA and the U.S. 
Army Corps of Engineers proposed clean water rule.
    Our goal in this rule is very straightforward. It is to 
respond to requests from stakeholders across the country to 
make the process of identifying waters protected under the 
Clean Water Act easier to understand, to make it more 
predictable and more consistent with the law and peer-reviewed 
science.
    We believe the result of this rulemaking will be to improve 
the process for making jurisdictional determinations under the 
Clean Water Act by minimizing delays in costs, to make 
protections of the Nation's clean waters more effective, and to 
improve predictability and consistency for landowners.
    The foundation of the agencies' rulemaking effort to 
clarify protections under the Clean Water Act is the goal of 
providing clean and safe water for all Americans.
    Consider these facts about the value of clean water to 
Americans: Manufacturing companies use 9 trillion gallons of 
freshwater every day. Thirty-one percent of all water 
withdrawals in the U.S. are for irrigation. About 40 million 
anglers spend $45 billion annually to fish in U.S. waters. The 
beverage industry uses more than 12 billion gallons of water 
annually to produce products valued at $58 billion. And 
approximately 117 million people get their drinking water from 
public systems that rely on seasonal, rain-dependent, and 
headwater streams.
    In recent years, several Supreme Court decisions have 
raised questions regarding the geographic scope of the Clean 
Water Act. In response to these questions as well as 
significant stakeholder requests for our rulemaking, the 
agencies began developing a proposed rule. The agencies' 
proposed rule provides continuity with existing regulations 
where possible. And we can reduce confusion and transaction 
costs for the regulated community and the agencies as we move 
forward with the final rule.
    To that end, the agencies proposed specific categories of 
rules that are and are not jurisdictional. The proposed rule 
also discusses several regulatory alternatives that would 
reduce or eliminate the need for case-specific evaluations and 
provide greater clarity.
    Using the input from our discussions with the agriculture 
community, EPA and the Corps are coordinating with USDA to 
ensure that concerns raised by farmers in the agriculture 
industry are effectively addressed in the final rule. The final 
rule will not change in any way existing Clean Water Act 
exemptions from permitting for discharges of dredged and/or 
fill materials into the waters of the U.S. associated with 
agriculture, ranching, and forestry activities.
    I also want to emphasize that farmers, ranchers, and 
foresters who are conducting the activities conducted by the 
exemptions, like plowing, tilling, planting, harvesting, 
building and maintaining roads, ponds, and ditches, and many 
other activities, can continue these practices after the new 
rule without the need for any approval from the Federal 
Government.
    Additionally, we expect to clarify for the first time in 
regulation that groundwater is not subject to the Clean Water 
Act. The proposed rule reduces jurisdiction over ditches and 
maintains the longstanding exclusions of prior converted 
cropland and waste treatment systems, including treatment ponds 
and lagoons.
    In preparation for the proposed rule, the EPA reviewed and 
summarized more than 1,200 peer-reviewed scientific papers and 
other data, and the EPA's Office of Research and Development 
prepared a draft peer-reviewed synthesis of public peer-
reviewed scientific literature. This draft report informed the 
agencies' development of the proposed rule.
    The draft report itself underwent independent peer review, 
led by EPA's Science Advisory Board. And the final report was 
published in the Federal Register on January 15, 2015. The 
final rule will carefully reflect the SAB's recommendations and 
all the data and information presented in the final report.
    We also want to emphasize that EPA responded to a request 
from the Science Advisory Board to review the effectiveness in 
basing the agencies' proposed rule on the best available peer-
reviewed science, and that conclusion is also part of the 
docket and supportive of this rulemaking moving forward.
    So let me conclude by emphasizing my strong belief that 
what is good for the environment is good also for farmers, 
ranchers, foresters, manufacturers, homebuilders, small 
businesses, and everyone in the United States. We all want 
clean water, and this rule will help ensure that we can 
identify the waters necessary to protect with clarity so that 
all these activities can continue.
    So I look forward to answering your questions.
    Mr. Shuster. Thank you, Administrator McCarthy.
    And now I will recognize Assistant Secretary Darcy for her 
statement.
    Ms. Darcy. Thank you, Mr. Chairman.
    Chairman Shuster, Chairman Inhofe, Ranking Member DeFazio, 
Ranking Member Boxer, thank you for the opportunity to testify 
today alongside my friend and colleague Gina McCarthy.
    We believe that the proposed rule provides the clarity, 
consistency, and predictability that Members of Congress and 
the regulated public have requested. It balances the protection 
of our Nation's aquatic resources while allowing fair and 
reasonable development. Most importantly, our proposal is based 
upon science, including a peer-reviewed report on connectivity 
and the recommendations of EPA's Science Advisory Board.
    Under section 404 of the Clean Water Act, the Corps 
regulates discharges of dredged or fill materials into waters 
of the United States, including wetlands. Nationwide, the Corps 
makes final decisions on over 81,000 permit-related activities 
and approximately 56,000 jurisdictional determinations 
annually, so efficiency is very important to us as well as to 
the regulated community that we serve.
    The proposed rule is fully consistent with several Supreme 
Court decisions regarding the Clean Water Act jurisdiction, 
specifically the Riverside Bayview Homes, regarding adjacent 
wetlands; the SWANCC decision, having to do with isolated water 
bodies; and the Rapanos decision, which dealt with waters that 
are not navigable in the traditional sense. It was in the 
Rapanos decision that Justice Kennedy stressed the notion that 
waters that possess a significant nexus to navigable waters 
could reasonably be made, so are subject to Clean Water Act 
jurisdiction.
    Based upon policy guidance that was promulgated in 2003 and 
in 2008, we have been doing case-specific significant-nexus 
analysis determination for many categories of nonnavigable 
streams and wetlands. These determinations require extensive 
documentation and fieldwork, requiring significant resources 
and time.
    Permit applicants have expressed concern about how 
significant-nexus determinations are being made. We have 
received comments from Congress, business, industry, 
agriculture interests, scientists, other stakeholders, and the 
public urging us to pursue a notice-and-comment rulemaking. 
Chief Justice Roberts himself, in the Rapanos decision, stated 
that the agencies would be in a better position if they had 
conducted a notice-and-comment rulemaking.
    As noted by the Administrator, the proposed rule retains 
much of the structure of the agencies' longstanding definition 
of ``waters of the United States,'' including many of the 
existing provisions not directly impacted by Rapanos and 
SWANCC. The agencies are not proposing to substantively change 
the provisions of traditional navigable waters, interstate 
waters, and the territorial seas.
    For the first time, we are proposing a regulatory 
definition for the term ``tributaries.'' Only those waters that 
flow into a traditional navigable water, interstate water, or 
territorial sea are jurisdictional as tributaries. We also 
propose that the term ``adjacent'' cover both adjacent wetlands 
and other adjacent water bodies.
    These new definitions will significantly clarify what 
waters are jurisdictional by rule using well-understood 
ecological concepts. For some categories of waters, no 
additional site-specific analysis would be required for certain 
adjacent waters.
    Our decision to regulate by rule all tributaries and 
adjacent waters and wetlands is based on our understanding that 
these waters, alone or in combination with similarly situated 
waters in a watershed, have a significant nexus to a 
traditional navigable water, interstate water, or territorial 
sea. And this is based on the currently available science.
    By decreasing the number of jurisdictional determinations 
that require a case-specific significant-nexus analysis 
evaluation, the proposed rule is expected to reduce 
documentation requirements and processing times for these.
    The agencies propose for the first time to exclude by rule 
certain waters and features over which the agencies have a 
policy to assert jurisdiction, such as certain ditches. Waters 
and features that are determined to be excluded from the 
jurisdiction will not be jurisdictional under ``waters of the 
U.S.''
    Over 1 million comments were received, as the Administrator 
indicated, and we intend to consider each of those comments 
when we develop the final rule.
    I see my time has expired. Thank you.
    Mr. Shuster. Thank you, Madam Secretary.
    And, with that, again, we are going to go to questions. And 
the way we are going to run it, again, is I will go to a Senate 
Republican, Senate Democrat, then back to a House Republican 
and House Democrat.
    So, with that, I yield 5 minutes of questions to Chairman 
Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    Ms. McCarthy, when you first opened up, you said that you 
were responding to the stakeholders across the country. And as 
I read the statements from the stakeholders across the country, 
they all seem to be on the other side of this. I would almost 
have to ask you who you are referring to.
    The Small Business Administration Office of Advocacy 
states, ``Advocacy recommends that the agencies withdraw the 
rule'' and conduct a small business review panel prior to 
promulgating the rule.
    And I would ask unanimous consent that that letter be 
placed in the record at this point, Mr. Chairman.
    Mr. Shuster. Without objection, so ordered.
    [The information is on pages 239-248.]
    Senator Inhofe. The Regulatory Flexibility Act requires the 
examination of impacts of proposed rules. This is something 
that wasn't done.
    Groups like municipal groups, the U.S. Conference of 
Mayors, National League of Cities, National Association of 
Counties, National Association of Regional Councils--all of 
them are very much on the other side.
    Now, we are going to hear, I know, from our attorney 
general, Scott Pruitt, and from others in the second panel, and 
I am anxious to get to that second panel.
    Let me make one comment, Mr. Chairman, that we are having, 
right now, our confirmation hearing on Ash Carter to be 
Secretary of Defense. I may have to be leaving from time to 
time for that purpose.
    Ms. McCarthy, our attorney general, Scott Pruitt, believes 
that your proposal exceeded your authority under the Clean 
Water Act and points out in his testimony that the Supreme 
Court stopped the Corps from regulating nonnavigable isolated 
intrastate water, but your proposal would bring all of these 
under Federal control because of use by the birds and animals.
    Can you explain to us how the use of water by a bird or 
animal can be a legal basis for regulating water under the 
Clean Water Act, briefly?
    Ms. McCarthy. Senator, it is my understanding that that is 
not sufficient as a sole reason for jurisdiction. And that was 
indicated----
    Senator Inhofe. All right. That is----
    Ms. McCarthy [continuing]. By the Supreme Court. But that 
is not what this rule intends to do or specifically does.
    Senator Inhofe. All right.
    Adam Putnam, the Florida commissioner of agriculture, says 
that on farms in Florida there are low spots, ditches, 
irrigation channels that capture, store, and carry water from 
rainfall.
    Will your final rule make it clear that these features are 
not ``waters of the United States''?
    Ms. McCarthy. In this final rule, we actually reduce the 
jurisdiction of the Clean Water Act relative to ditches by 
making clear that there are a variety of other ditches that 
should be excluded from jurisdiction.
    And we do the best we can to explain those from erosional 
features, but I will say that there has been a lot of comment 
that indicate confusion there. And we are really looking 
forward to clarifying that, because in no way do we intend to 
reduce the exclusions or exemptions that are currently in the 
Clean Water Act.
    Senator Inhofe. Thank you.
    The EPA has described concerns about Federal control over 
fields and industrial facilities, really any piece of land that 
is not flat, because when it rains, that water runs downhill 
and forms drainage features such as--and they declare that as a 
myth.
    Now, this thing here is from Tennessee. It is a picture of 
a farmer's field in Tennessee. The State of Tennessee said it 
was a wet-weather conveyance. In other words, it only had 
moving water when it rains. But the Corps called it a stream, 
subjecting it to your proposed new regulation.
    Do you agree with the Corps?
    Ms. McCarthy. I am sorry, sir. I can't, on the basis of a 
picture, make a science determination.
    Part of the reason to do this rule is to look at the 
current science and to try to provide the clarity that people 
need so that the determinations are clear, the reasons why are 
clear, and people can actually do farming and agriculture and 
ranching with much more certainty.
    Senator Inhofe. Ms. Darcy, was that an accurate 
representation of your or the Corps' comments?
    Ms. Darcy. Yes, sir.
    Senator Inhofe. All right.
    And you also said in a press conference, you said that the 
increase--talking about the President's budget--the increase 
that would be going to the Corps was linked to the proposed 
rule that we are talking about today. Was that accurate?
    Ms. Darcy. Yes.
    Senator Inhofe. So if this proposed rule goes final, are 
you going to need those additional resources to regulate more 
waters?
    Ms. Darcy. We will need those additional resources to 
implement the rule, sir.
    Senator Inhofe. Thank you, Mr. Chairman.
    Mr. Shuster. Thank you, Mr. Chairman.
    And, with that, Senator Boxer is recognized for 5 minutes 
for questions.
    Senator Boxer. Thank you, Mr. Chairman.
    I would like to place into the record letters that I have 
received at the committee from over 1,000 groups from 44 States 
supporting this proposal.
    And I am going to read just some of them to give colleagues 
an idea of the broad support this rule is receiving: America's 
Great Waters Coalition, American Fisheries Society, American 
Public Health Association, American Rivers, American 
Sustainable Business Council, Association of State Floodplain 
Managers, Great Lakes Coalition, Outdoor Alliance, Outdoor 
Industry Association, Rural Coalition, Society of Wetland 
Scientists, Southern Environmental Law Center, U.S. Shorebird 
Conservation Partnership, Waterkeeper Alliance, Alaska 
Independent Fishermen's Marketing Association, EPA Region 10 
Regional Tribal Operations Committee, the Alabama Rivers 
Alliance.
    In California, just to name a few: the California 
Association of Sanitation Agencies, California State Water 
Resources Control Boards, the Golden Gate Salmon Association.
    In Colorado, a joint comment letter from 43 elected 
officials.
    In Oklahoma, the Conservation Coalition of Oklahoma, the 
Groundwater Protection Council, the Indian Country Agriculture 
and Resource Development Corporation, a number of others.
    In Oregon, a number, including the city of Portland.
    In Pennsylvania, a joint letter from 74 Pennsylvania NGOs, 
a whole list from Pennsylvania, including a Philadelphia 
resolution in support of the rule, League of Women Voters of 
Pennsylvania, and it goes on.
    So I want to put those letters in the record, if there is 
no objection.
    Mr. Shuster. Without objection, so ordered.
    [The information, except for letters from Southern 
Environmental Law Center and Waterkeeper Alliance, is on pages 
249-343. Letters from Southern Environmental Law Center and 
Waterkeeper Alliance, as well as over 1,000 pages of additional 
letters of support, are available at the Government Publishing 
Office's Federal Digital System (FDsys.gov) at https://
www.gpo.gov/fdsys/pkg/CPRT-114JPRT95074/pdf/CPRT-
114JPRT95074.pdf on pages 1-1022.]
    Senator Boxer. Ms. McCarthy, we have heard claims that many 
waters would be regulated that are actually exempted from your 
rule.
    So can you clarify? If you can do it with a ``yes'' or 
``no'' or a ``maybe.'' And then if you say ``maybe,'' we will 
go into it.
    Isolated puddles.
    Ms. McCarthy. Exempted.
    Senator Boxer. I can't hear you.
    Ms. McCarthy. I apologize. They continue to be exempt.
    Senator Boxer. So isolated puddles are not regulated. Is 
that correct?
    Ms. McCarthy. That is correct.
    Senator Boxer. Isolated ponds not connected to other 
waters, are those going to be regulated under your rule?
    Ms. McCarthy. No.
    Senator Boxer. Artificially irrigated areas, will they be 
regulated under your rule?
    Ms. McCarthy. No, Senator.
    Senator Boxer. Reflecting pools and summer pools, will they 
be regulated under your rule?
    Ms. McCarthy. No, Senator.
    Senator Boxer. What about water-filled depressions that are 
incidental to construction, will they be regulated under your 
rule?
    Ms. McCarthy. No.
    Senator Boxer. Jo-Ellen Darcy, do you agree with that?
    Ms. Darcy. I do, Senator.
    Senator Boxer. OK.
    I would ask unanimous consent to place into the record a 
very interesting press release from business leaders who 
support this rule, the American Sustainable Business Council. 
So I would ask permission to get that into the record.
    Mr. Shuster. Without objection, so ordered.
    [The information is on pages 344-345.]
    Senator Boxer. And, finally, I wanted to talk about the 
many comments that were received. Could you tell us how many 
comments were received approximately? My understanding is about 
1 million, but I am not sure I am right on that.
    Ms. Darcy. Yes. The last number I saw was over 900,000, so 
we are talking nearly 1 million comments.
    Senator Boxer. OK.
    And I want to make sure, because Congressman DeFazio talked 
about transparency. Have you extended the rulemaking time so 
that even more people could get their comments in? And are 
these comments open, and can we all read the comments?
    Ms. Darcy. We extended the comment period this fall. I 
believe the public comment period closed November 14th of 2014. 
We had added an additional 45 days from the initial comment 
period, so there was additional time given. The proposed rule 
went out last spring.
    Senator Boxer. And the comments will be published; is that 
correct?
    Ms. Darcy. Yes.
    Senator Boxer. For all to see?
    Ms. Darcy. Yes.
    Senator Boxer. Well, Mr. Chairman, you know, I am confused 
because I think people are arguing against some mythical rule. 
And I do think the Obama administration has been very careful 
not to overreach on this.
    And we keep hearing about how this President issues more 
Executive orders. Now, this is a rule, but, just for the 
record, President Obama has issued fewer Executive orders than 
President Reagan, both Bushes, President Clinton.
    And I think this rule is an example of your ability--two 
leading voices here, who have common sense. We don't want to 
regulate a puddle. That is ridiculous. That doesn't hurt 
anybody. We want to regulate a body of water that has 
pollutants in it and those pollutants wind up in the drinking 
water system in Ohio or California or Pennsylvania or Oklahoma 
or Oregon or any other place.
    So I want to just thank you so much.
    And, again, Mr. Chairman, thank you for this opportunity.
    Mr. Shuster. Thank you, Senator Boxer.
    With that, I am up first. And the chairman's prerogative, I 
am going to go first to the gentleman from Ohio, the gentleman 
who is the chairman of the Subcommittee on Water Resources and 
Environment, also a farmer, also the former chairman of the Ag 
Committee in the Ohio State Legislature. So he is not only a 
policy expert, he knows practically what this means to farmers 
out there.
    So, with that, I yield 5 minutes for questions to Mr. 
Gibbs.
    Mr. Gibbs. Thank you, Mr. Chairman.
    Just to clarify from some of the opening statements, 
everybody in this room wants clean water and clean drinking 
water and to protect the environment. But, unfortunately, this 
rule, as proposed, doesn't get us there, and we do need 
clarification. And I am going to try to demonstrate that in a 
couple minutes.
    Assistant Secretary Darcy, I want to start where we left 
off in my committee last year. We were talking about the 
erosional feature, and I actually gave an example on my farm, 
and you said that would not be under ``waters of the United 
States.''
    And I happen to have the same picture; it is just a little 
bit smaller than Senator Inhofe's, but I want to bring that up. 
I won't even ask the question. I will just start.
    This is in Tennessee, like Senator Inhofe said. This was 
declared a tributary of ``waters of the United States.'' This 
was declared a ``waters of the United States.''
    Now, it looks like to me it is an erosional feature. OK? 
And maybe it looks like to me it should be a grass waterway. 
But if they are going to already make that--and the reason it 
was already declared, because this landowner had to go get a 
permit. And here is the permit. And they spent a pile of money 
getting through that.
    Now, the problem is, when that kind of land feature or 
farmland layer is declared ``waters of the United States,'' 
that means they have to get a section 404 permit to fill that 
in or to put in a grass waterway. They would have to get a 402 
permit from the EPA if they are going to spray herbicides or 
pesticides.
    This is where I think you go backwards a little bit. If 
farmers are working with the Soil Conservation Service, trying 
to do the right thing, like I did on my farm, but now, if it is 
already declared ``waters of the United States'' by the 
interconnectivity rule, the neighbors in that watershed are 
automatically declared that. Then they have to go get a 404 
permit to fix that. And that might take some time, it is going 
to overburden the agencies, and I don't think we are going to 
enhance the protection of the environment.
    That is the first concern I have on that aspect. Then, if 
you the Corps are going to declare that ``waters of the United 
States,'' obviously, then, township road ditches are going to 
be declared ``waters of the United States,'' if you are going 
to declare an ephemeral like that. That is my first concern.
    Now we have a second picture. This was done by an 
engineering firm who are experts in this field, and this is the 
current jurisdiction of ``waters of the United States'' on some 
property just south of Ohio and Kentucky. You can see the 
creeks there in the blue and some of the intermittent streams. 
There are 96 miles of intermittent streams, 47 miles of 
perennial.
    Then the next picture--hold that up--is what it would be 
under the proposed new rule. We now have 384 ephemeral streams. 
And that just opens it up to the whole thing and causes a lot 
of concern. That is where the agriculture community is really 
concerned.
    I think the pictures say what the issue is here. And if you 
want to comment, Assistant Secretary, quickly, you can, because 
I want to move on.
    Ms. Darcy. I would say, Congressman, that the picture you 
showed earlier, similar to the one from Senator Inhofe, that it 
was determined jurisdictional under the current rule; however, 
under the proposed rule, it would not be jurisdictional.
    Mr. Gibbs. OK. Do we have your commitment that those 
wouldn't be in the----
    Ms. Darcy. Under the proposed rule----
    Mr. Gibbs. OK.
    Ms. Darcy [continuing]. They would not be jurisdictional.
    Mr. Gibbs. Administrator McCarthy, you put out a press 
release today and said that 60 percent of the streams and 
millions of acres of wetlands across the country aren't clearly 
protected from pollution and destruction. And you went on to 
say that your agencies have proposed to strengthen protections 
to clean water. I thought this was all about clarifying, not 
strengthening.
    But I want to back up here, where you say clearly--aren't 
clearly protected. It is my understanding that the State EPAs 
have to, every 3 years, submit a plan of action to your agency. 
And that is where the oversight and the guidance creates the 
cooperative federalism to work together.
    When I read your press release, I would have to assume that 
maybe your agency is not doing what you are supposed to be 
doing.
    Ms. McCarthy. Well, Congressman, it is our intent in this 
rulemaking to make sure that the confusion that has arisen from 
earlier Supreme Court decisions are clarified. And I think it 
is incredibly important that we minimize delays and we minimize 
costs associated with the implementation of this rule, that we 
make our protections more effective.
    Mr. Gibbs. Well, I would also----
    Ms. McCarthy. And we are going to do that by----
    Mr. Gibbs. Excuse me. Reclaiming time, let me go on. Let me 
go back here to this example in Tennessee. Tennessee, on 
stormwater and the picture we had, had actually more stringent 
rules than what the EPA currently has. So they are doing their 
job. And now you are going to add more cost, because they are 
going to have to redevelop their plans, and it is going to add 
more cost.
    When you look at some of the 900,000 comments, a lot of 
them are by Governors, majority of the States, and they 
question--the process is inadequate. You did not consult the 
States, you did not consult the State EPAs. They say that in 
their comments.
    You know this process is broken. You need to stop the 
process and go back, and let's start over.
    I yield back my time.
    Mr. Shuster. And, with that, I will allow the witness to 
respond to that.
    Ms. McCarthy. Well, I think we have been working very 
closely with the States for many years, and it is, in fact, the 
States, as well as stakeholders and the Supreme Court, who told 
us we needed to go back and take a look at the science and make 
this on much more sure footing in terms of what the science 
tells us today about what waters are essential for protection.
    But I would just reinforce the fact that I understand that 
everybody here wants clean water. I also understand that the 
agriculture community is sincere in wanting to have clean water 
but also certainty that they can continue to farm and ranch and 
do the silviculture that we all rely on.
    That is what we are trying to clarify with this rule. That 
is the predictability. That is how we are going to get better 
and enhance our relationship with the States and our 
effectiveness as Federal agencies.
    Mr. Shuster. Thank you.
    And, with that, I would like to ask unanimous consent that 
the permit that Mr. Gibbs had be submitted to the record.
    So, without objection, so ordered.
    [The information is on pages 346-370.]
    Mr. Shuster. And, with that, I recognize Mr. DeFazio for 5 
minutes.
    Mr. DeFazio. Assistant Secretary Darcy, as I understood 
your response to this case in Tennessee, you said, because of 
what has been referred to as the Farm Bureau view, the 
hodgepodge of ad hoc and inconsistent jurisdictional theories 
in the Bush rules, that was ruled, apparently, as a wetland. 
But you are saying, under the new clarified rules, it would not 
be. If it is a farming activity, it would be exempt.
    Is that correct?
    Ms. Darcy. That is correct.
    Mr. DeFazio. OK.
    So if we are stuck with the Bush guidance, then that farmer 
is stuck with that ruling. If we move beyond the Bush guidance, 
that farmer and other farmers would be exempt, given similar 
circumstances----
    Ms. Darcy. Correct.
    Mr. DeFazio [continuing]. With erosional features. OK. 
Excellent.
    You know, you have received 1 million comments. I assume 
that, you know, as we heard, they are all going to be posted. 
They haven't been. I think that would be useful. You don't have 
to post 108,000, 200,000, 300,000 identical postcards but at 
least an example of one thing. There are 300,000 postcards like 
this. But it should all be posted.
    Now, have you listened? Are we going to have clarifications 
and changes in the final rule, Administrator McCarthy?
    Ms. McCarthy. Yes, sir.
    Mr. DeFazio. OK. So we are going to have changes.
    Ms. McCarthy. Yes.
    Mr. DeFazio. Has any member of this panel seen those 
proposed changes?
    Ms. McCarthy. Not as yet, no.
    Mr. DeFazio. OK. Have any of the advocacy groups on either 
side of the issues seen those proposed changes?
    Ms. McCarthy. Not as yet, no.
    Mr. DeFazio. OK.
    So you are going to be responsive to concerns that have 
been raised about ditches, about erosional features, and other 
major, you know, consistent, persistent concerns that I have 
heard in this rule. You are going to clarify. And you go on to 
say that, in fact, ditches will be--there will be more 
clarification and exemption for ditches than under the Bush 
rule.
    Ms. McCarthy. That is correct.
    Mr. DeFazio. OK. So why would we want to stop that?
    Ms. McCarthy. I think one of the reasons to go to 
rulemaking, which was a judgment that this administration made, 
was to listen to all of the people who said that this is 
important enough. And the transparency and certainty of the 
rulemaking process is what we need. We put a proposal out 
specifically to generate comment----
    Mr. DeFazio. Right. But the comment----
    Ms. McCarthy [continuing]. To learn from that.
    Mr. DeFazio. You will admit that the initial rule did 
create a good deal of confusion.
    Ms. McCarthy. Yes.
    Mr. DeFazio. You had to keep issuing statements saying, it 
doesn't do this, it doesn't do that, it doesn't do this, it 
doesn't do that.
    And then now people think--and please clarify this; this is 
a major objection--that if you haven't specifically exempted 
something in this rule or with your clarifications, that 
everything else is covered. Will you please clarify that that 
is not true?
    Ms. McCarthy. That is not true.
    And you are absolutely right; we are looking to provide 
more clarity on the basis of the comments we received. We are 
not expanding the jurisdiction of the Clean Air Act. We are not 
taking away current exemptions. We were making an attempt to 
take a look at the science and provide as much clarity as we 
could.
    And we are going to listen to those comments, and we are 
going to make changes in a variety of areas where the comments 
have been very robust and clear, and we will respond to those. 
We are intending to use this rulemaking process in the way we 
described it. We are going to protect what we need to; we are 
going to leave alone what we don't.
    Mr. DeFazio. Former subcommittee Chairman Bishop offered an 
amendment last year which prohibited the rule from going into 
effect if it expanded the authority over waters never before 
covered by the act.
    Do you have any problem with that? Would that affect this 
rule? Are you covering waters never before covered?
    Ms. McCarthy. We cannot expand the jurisdiction of the 
Clean Water Act. We are simply trying to provide clarity in 
terms of what that is with this rulemaking.
    Mr. DeFazio. OK. So if we passed an amendment or statute 
that said that, it wouldn't affect this rule because you are 
not expanding the authority.
    Ms. McCarthy. We are not expanding the authority of the 
Clean Water Act. We cannot do that.
    Mr. DeFazio. OK.
    Let's get back to ditches. To Ms. Darcy, you mentioned 
roadside ditches. All exempt?
    Ms. Darcy. The particular exemptions in the proposed rule 
relate to upland ditches, which are dry ditches going from dry 
land to dry land. I am going to have to check my notes here as 
to the other specific exemption for ditches.
    However, within the public comment period, we have had a 
great deal of focus on ditches and how do we define those for 
possible further exclusion. We will be looking at the 
``ditches'' definition in the proposed rule as well as those 
recommendations of clarification from the public.
    Mr. DeFazio. You mentioned agricultural practices. How 
about a quarry that creates a pool of water within the quarry 
because as you mine down you hit the water table? Is that going 
to become jurisdictional?
    Ms. Darcy. The way you define it, it sounds as though it is 
an isolated----
    Mr. DeFazio. It is groundwater that is bubbling up. It is 
not flowing out.
    Ms. Darcy. We do not regulate groundwater in this rule.
    Mr. DeFazio. OK. And even though there is a pond or 
whatever body of water within the quarry that was artificially 
created, not covered.
    Ms. Darcy. Not covered.
    Mr. DeFazio. OK. Thank you.
    Thank you, Mr. Chairman.
    Mr. Shuster. Thank you, Mr. DeFazio.
    Now, just to give you a heads-up on the lineup so people 
know who is in the queue to ask questions--OK, the Senate just 
through a curve at me.
    First, we are going to go to Senator Barrasso, then Senator 
Whitehouse. Then I am going to take my turn questioning, and 
then Ms. Norton will be fourth.
    So, with that, I recognize Mr. Barrasso for 5 minutes.
    Senator Barrasso. Thank you very much, Mr. Chairman.
    Ms. McCarthy, thank you for being here.
    I want to show you a map of the State of Wyoming, my home 
State. And this states it was prepared by INDUS Corporation 
under contract with the U.S. Environmental Protection Agency. 
The map has at the bottom the symbols of the U.S. Geological 
Survey, the EPA, and the U.S. Forest Service.
    And this map depicts surface-water features in Wyoming, 
including perennial, intermittent, and ephemeral streams, which 
are all color-coded here. That means that everywhere in this 
map that isn't white is a potential ``water of the United 
States,'' requiring communities, requiring ranchers, requiring 
small-business owners to obtain costly permits to do any sorts 
of activities.
    Now, Wyoming is a High Plains State. It is considered an 
arid State. So I can't understand how the EPA can determine 
with this map that most of the State of Wyoming is a potential 
``water of the United States.'' I can only conclude that the 
Agency is counting Wyoming land covered in snow during the 
winter.
    In 2014, one of my constituents was threatened with fines 
of $75,000 a day--$75,000 a day--for building a stock pond that 
the Corps said was somehow connected to a ``water of the United 
States.'' And under this map, the entire State of Wyoming would 
be subject to threats of fines for even putting a shovel into 
the ground.
    So both Congress and the Supreme Court said that the 
Federal control over water should be limited. This map proves 
this rule would be doing exactly the opposite.
    And that is why I will once again introduce legislation, 
working with Chairman Inhofe, to stop this bureaucratic 
overreach. So I urge my colleagues to once again join me in 
this effort with this legislation impacting the ``waters of the 
United States.''
    Now, Ms. McCarthy, in a March 27, 2014, hearing before the 
House Appropriations Subcommittee on the Interior, Environment, 
and Related Agencies, you told Chairman Rogers that the EPA 
has, quote, ``some mapping in the docket associated with this 
rule that people can access at this point.'' You went on to say 
that there had been no mapping before and that you had taken 
the opportunity to map water bodies that you felt the Federal 
Government needed to protect.
    Now, can you explain to me why these maps that you 
obviously considered significant were never made available for 
public comment?
    Ms. McCarthy. I am sorry, Senator. I think the maps that 
you are holding up are maps that EPA has worked with both USDA 
and Fisheries to take a look at water bodies across the U.S. 
They were, as far as I know, not used to determine jurisdiction 
and not intended to be used for jurisdiction. They are entirely 
different, with different data sets. They were not used 
specifically for the purpose that we are here to talk about, 
and they are not relevant to the jurisdiction of the ``waters 
of the U.S.''
    Senator Barrasso. Well, you said there had been--your 
actual quote is there had been no mapping before, there has 
been no certainty, so we are identifying the rivers and streams 
and tributaries and other bodies that science tells us is 
really necessary to protect the chemical, physical, and 
biological integrity of navigable waters.
    So I would say, then where are the maps that you are 
referring to?
    Ms. McCarthy. Senator, I don't know what the specific quote 
was referring to. But I do know that those maps were 
commissioned to have a better understanding of waters across 
the U.S., which I am very happy my water office wants to do. 
But those were not done specifically to inform this rulemaking, 
as far as I know. And I was the decisionmaker on this proposal, 
and those were not called to my attention in any way, shape, or 
form. And they are not consistent with how we look at the 
jurisdiction of the Clean Water Act.
    Senator Barrasso. So my question is this: If these maps 
don't show the scope of the waters protected, could your 
proposed rule capture even more than what is on this Wyoming 
map and other State maps? You know, more specifically, is this 
map, is this a ceiling of what you intend to capture, which 
would be terrible, or is this map a floor of what may be 
captured? Then this is actually catastrophic for people all 
across the country. What is your----
    Ms. McCarthy. It is neither of those. This proposed rule 
speaks to what characteristics water bodies need to have in 
order to be jurisdictional. Those are in no way related to the 
maps that you have behind you.
    And, again, we are not expanding the jurisdiction of the 
Clean Water Act. We are not eliminating any exemptions or 
exclusions from the Clean Water Act in this proposal. We are in 
fact narrowing the jurisdiction of the Clean Water Act, 
consistent with sound science and the law.
    Senator Barrasso. So if you are not going to use these 
maps, can you commit to me and to this committee that the final 
rule will rely on actual field observations to identify Federal 
jurisdiction as opposed to EPA and the Corps establishing 
Federal jurisdiction over Wyoming's water from your desks in 
Washington using some other tool?
    Ms. McCarthy. This proposed rule actually identifies what 
we believe should be jurisdictional, what we believe should not 
be jurisdictional, and then, on a case-by-case basis, you make 
determinations.
    Senator Barrasso. Thank you, Mr. Chairman.
    Mr. Shuster. Thank you, Senator.
    With that, we will go to Senator Whitehouse.
    Hold it a second. Somebody else is----
    Senator Whitehouse. Thank you very much, Mr. Chairman.
    Mr. Shuster. Hold on 1 second, Mr. Whitehouse. We are 
operating on your side under Senate rules, so I have to defer 
to Mr. Inhofe. And I believe that since Mr. Cardin is senior, 
he gets the 5 minutes now.
    Mr. Cardin?
    Senator Whitehouse. Works for me.
    Senator Cardin. I think there will be virtually no 
difference between Senator Whitehouse and my view on the work 
being done by EPA on the ``waters of the U.S.''
    So let me first, though, welcome the Administrator and 
thank her very much.
    The Administrator knows my concerns for the Chesapeake Bay. 
All of our stakeholders have been involved in cleaning up the 
bay. The Clean Water Act is a critically important part of 
everyone working together.
    The headwaters are critically important to the efforts, and 
our farmers are making a real effort to help us clean up the 
bay. Our developers are making efforts. Our local governments, 
private sector--all working together in a collaborative way to 
deal with the challenges of the Chesapeake Bay, the largest 
estuary in our hemisphere.
    The concern is, if we don't deal with the headwaters, it is 
a huge problem. Now, before the Rapanos decision, I think it 
was pretty clear as to what was regulated waters and what were 
not. The Rapanos decision put that in question. And then there 
was a desire for clarification.
    Congress should have acted. Congress did not. The opponents 
of these rules didn't really want Congress to act. And now we 
need regulation, and they are saying there is confusion, but 
they are fighting regulation.
    So I just really want to give you a chance to tell us what 
these regulations are all about. Are we trying to do something 
different than we have done in the past? Or are we trying to 
have clarity on waters that affect water qualities in bodies of 
water such as the Chesapeake Bay, that we have sensible 
definitions for what is included--but it seems to me you have 
gone to an extreme, to exclude those areas that may be of 
concern. Which, quite frankly, I think you probably pulled it 
back further than we had before the Rapanos decision.
    Ms. McCarthy. Well, thank you for a few minutes.
    First of all, thank you for your commitment to the 
Chesapeake and other beautiful areas that are so important to 
us.
    This rule is really about responding to the confusion that 
has arisen over the years. And it is a conversation we have 
been having, frankly, for decades.
    And what we really need to do with this rule is to clearly 
explain what waters the Clean Water Act was intended to 
protect. And those are waters that are most important to 
protecting drinking water supplies, that are most important to 
protect us from flood damage, that are most important in many 
different ways for both fishing as well as the recreational 
opportunities that we all enjoy.
    And so we have used the opportunity to spend many years 
looking at the science, telling us what waters we need to 
protect, so that we can minimize our focus and our resources in 
areas where it is not critically important.
    So this rule is about clarifying what is in, about 
maintaining the examinations, in fact, expanding the exemptions 
based on what we know now on the science, and making it 
abundantly clear so that people can go about their business 
with more clarity and more certainty.
    We won't have to spend the resources. Stakeholders won't 
have to spend the resources. But, frankly, this is all about 
the science. They told us, the Supreme Court told us, get the 
science right. And we are doing that with this rulemaking.
    Clearly, there is work to do between proposal and final. We 
are up to this task. And one of the reasons to do this with a 
rulemaking instead of guidance is to gather the information we 
need to get it right. And we will.
    Senator Cardin. You have given some clarity, some detail in 
the regulation. As you pointed out, it is open for comment 
right now----
    Ms. McCarthy. It is.
    Senator Cardin [continuing]. So people who have concerns 
can express those concerns.
    And in our conversations with EPA, we have seen a 
willingness to make sure that is a very open process. You want 
to be judged by the best science, but you want to make sure you 
get it right.
    Now, you have given a lot of detail. So if people have 
questions about the details, it is up to them now to comment, 
is it not? Isn't this an open process?
    Ms. McCarthy. It is. And if you look at the comments, you 
know, nobody is going to say, I think you got it all right or 
all wrong. They are very good, substantive comments.
    And so when we raised issues of did we get the definition 
of ``tributary'' right, did we narrow it appropriately--we 
looked at how do you define ``adjacent waters.'' We set up 
ideas for how to do that. We solicited comments on 
alternatives. We tried to narrow where the uncertainty was, 
limit the amount of case-by-case analysis that would need to be 
done. And we teed up these issues specifically to get these 
comments.
    We have had over 400 meetings, met with 2,500 people, had a 
local government advisory committee going across the U.S. We 
are doing what we need to get this right.
    Senator Cardin. I will just make one final comment, if I 
could, and that is, there needs to be action.
    Ms. McCarthy. Yes.
    Senator Cardin. If Congress wants to pass a law, fine. If 
not, we need to have regulation on clarity. That was very clear 
from the Supreme Court decision. And I thank you very much for 
carrying out the responsibility that you have by proposing 
these regulations.
    Ms. McCarthy. Thank you, Senator.
    Mr. Shuster. Thank you, Senator.
    Now I will recognize myself for 5 minutes for questions.
    First, Administrator McCarthy, did you say on that map that 
Senator Barrasso put forth that you weren't aware of that map?
    Ms. McCarthy. No, not specifically. I was made aware of it 
after last summer.
    Mr. Shuster. OK. Well, that is a huge concern of mine, that 
the Administrator--and it is not just the EPA; it is all these 
departments across the Federal Government. The political 
appointees don't get the real information from folks down 
below. When these laws come out, they are significantly changed 
and interpreted in a different way.
    And, you know, my good friend talked about the mythical 
rule. Well, but history shows us that it is mythical to have a 
view that the EPA or the Corps is not going to interpret these 
things in a much different way as we go down the road. So that 
is the huge concern we have here today. There is a lot of 
uncertainty for all of us.
    Ms. McCarthy. Well, Mr. Chairman, I----
    Mr. Shuster. Well, let me finish.
    Ms. McCarthy. Oh, I am sorry. I apologize.
    Mr. Shuster. My good friend from California, she had a 
list. Well, I want to give you my list, and it is 34 States: 
Colorado, Georgia, Maine, Michigan, Missouri, Montana, New 
York, Ohio, South Carolina, Tennessee, Wisconsin, Wyoming, 
Arkansas, Alabama, Arizona, Iowa, Indiana, Pennsylvania, on and 
on. There are 34 States that oppose and want this revised or 
oppose and withdraw. That is a real list of people that have to 
deal with these, and that brings us to why we are here today.
    And the question is, why haven't we included the States in 
this? And why do we have 34 States, two-thirds of the States, 
saying, revise or withdraw? They oppose with a revise or oppose 
and withdraw. Can you answer that question?
    Ms. McCarthy. Mr.----
    Mr. Shuster. About the States.
    Ms. McCarthy. Mr. Chairman, the States have been very 
actively involved in this and other issues. In fact, the States 
wrote to us and said, stop using guidance, get to a rulemaking 
process.
    The only thing I am asking this joint committee is to take 
a look at how we are going--have we proposed this, the robust 
outreach. The comments we have received, you say two out of 
three don't like everything? Two out of three gave us robust 
comments that will inform the final.
    Mr. Shuster. I have----
    Ms. McCarthy. This is a partnership with the States that we 
are going to maintain.
    Mr. Shuster. Two out of three want this--they oppose this 
with significant revisions, and almost half the States, 22, say 
they want you to withdraw it.
    Ms. McCarthy. It depends on who you are talking to, Mr. 
Chairman.
    Mr. Shuster. I don't believe you are consulting, and the 
States aren't full partners in this, in this rulemaking. And it 
is based upon what they are telling us.
    Also--it was mentioned in Mr. Gibbs' questioning--I wanted 
to know if both of you would commit to explicitly stating in 
the rule that erosional and ephemeral features on farm fields 
are exempt from the regulation. Are you willing to put that in 
the regulation?
    Ms. McCarthy. We have actually made a very good attempt to 
identify those erosional features, not----
    Mr. Shuster. That doesn't sound----
    Ms. McCarthy. No, no----
    Mr. Shuster. That sounds to me like----
    Ms. McCarthy. We have maintained the exemption, and we are 
trying to explain it more so that people will have more 
certainty.
    Mr. Shuster. That sounds to me like that an ``attempt,'' 
you are ``trying'' to--when the rule goes in and it is that 
vague, as it trickles down to the middle management of the EPA 
or the Corps, over the years, this is where the reach is going 
to come from. This is what the farmers, this is what the 
developers, this is what people that do things around this 
country, this is what they are concerned about. And this rule I 
do not think makes it clear.
    Another question.
    Ms. McCarthy. Mr. Chairman, we will clarify----
    Mr. Shuster. Let me ask one other question. I will let you 
answer after----
    Ms. McCarthy. Yeah.
    Mr. Shuster. You can answer any way you want to.
    Ms. McCarthy. OK.
    Mr. Shuster. Are we defining navigable waterways as 
tributaries? We are going from navigable to tributaries; that 
is sort of what my understanding is of the rule.
    Ms. McCarthy. OK.
    Mr. Shuster. Is that actual?
    Ms. McCarthy. Actually, we are helping to apply the Supreme 
Court's understanding that navigable waters include 
tributaries.
    Mr. Shuster. OK. So water, doesn't it eventually, maybe it 
takes years and years, but doesn't it eventually seep into 
bigger bodies of water that are navigable under today's 
definition?
    Ms. McCarthy. I think that is the challenge, is for us to 
recognize what tributaries are significant contributors enough 
that they can impact navigable waters.
    Mr. Shuster. So you would say that in a farm field that was 
shown earlier, there is water laying there; eventually, 2 
years, 10 years, 20 years, it eventually seeps into navigable 
waters. Is that true or not? I am not a scientist, so I am 
asking the question.
    Ms. McCarthy. The science establishes connections, but it 
is on a gradient. And what the Supreme Court made clear to us 
and what this rule attempts to do is to identify only those 
that could significantly impact the physical, chemical, and 
biological integrity of downstream waters. So just because you 
are connected, it does not mean you are jurisdictional.
    Mr. Shuster. But it could mean it does.
    Ms. McCarthy. If that connection is significant for 
drinking water protection----
    Mr. Shuster. That is the basis why I believe these 34 
States are opposing this rule. That is why my colleagues 
believe--and what Mr. Cardin said. I think it is time for 
Congress to act. I think it is time for us to come forth and 
help to clarify the rule, because there is no doubt it needs to 
be clarified.
    And I do not believe that this rule is going to clarify it. 
It is going to make it vague. And I would predict, if this rule 
goes into effect, 5, 10 years down the road, it will cost 
working and middle-class Americans more to buy homes, more to 
buy food, because of the EPA and the Corps and the regulations 
that they are putting out there, making it far more difficult 
for them to do their work.
    Ms. McCarthy. Mr. Chairman, I am sorry that I interrupted 
you earlier. I just----
    Mr. Shuster. That is all right.
    Ms. McCarthy [continuing]. Wanted to let you know that I 
understand this confusion between tributaries and erosional 
features. We are going to tackle that confusion head-on.
    Mr. Shuster. I appreciate it. And I am sorry I got 
exercised, but this rule is of great, great concern to me, my 
constituents----
    Ms. McCarthy. I appreciate that.
    Mr. Shuster [continuing]. And 34 other States.
    Ms. McCarthy. I appreciate that.
    Mr. Shuster. So, with that, I recognize Ms. Norton for 5 
minutes.
    Ms. Norton. Thank you, Mr. Chairman.
    And I do want to say you, Administrator McCarthy and 
Assistant Secretary Darcy, in less than an hour of testimony, 
you have already exploded some of the major myths surrounding 
the rule.
    And I want to say that we already know that our roads and 
our transit and our underwater infrastructure and our ports are 
falling apart. Congress is letting it happen as we speak. 
Please spare us our clean water.
    Mr. Chairman, I want to ask that a letter from the 
Department of the Environment of the District of Columbia be 
included in the record.
    Mr. Chairman? I ask that a----
    Mr. Shuster. I am sorry about that.
    With unanimous consent, so ordered.
    Ms. Norton. Thank you.
    [The information is on pages 371-373.]
    Ms. Norton. I have a question that is fairly 
representative, I think, of urban jurisdictions around the 
country.
    Administrator McCarthy, as you know, because we appreciate 
that you came out to the District of Columbia to tour our own 
efforts to revise our stormwater overflow system, these systems 
around the United States are often a century or more old, and 
they are being remodeled, I must say, with almost no Federal 
help.
    Now, these rules are being criticized both for being too 
vague and too broad. For myself, I think rules ought to have 
some breadth, particularly in this area where we are dealing 
with the waters of the United States of America in the most 
diverse landmass in the world.
    So this is my question, and I apologize because it is 
particular. I am trying to find out whether the kind of work we 
are doing and is being done all over the United States with 
stormwater overflow, under the rule, would include piped 
sections of streams in the definition of ``tributary.''
    As you know, many of these pipes run under tributaries, and 
if they are required to go through the permitting process for 
municipal stormwater, then, of course, there would be 
considerable delay and considerable cost.
    My question really goes to clarification. I think the way 
the rule is structured I don't have any criticism of, but I 
want to clarify whether or not such underwater, don't-see-the-
daylight streams, pipes under streams, would need to be 
permitted.
    Ms. McCarthy. Thank you. And I am actually glad you raise 
the issue because there has been some confusion about this.
    And let me be very clear that EPA has not intended to 
capture features as you described them that have already been 
captured in what we call MS4 permits, which was part of, I 
think, what you and many other urban areas are concerned about. 
It is our intent to continue to encourage and to respect those 
decisions and to also encourage water reuse and recycling, 
which very much is consistent with the Clean Water Act and our 
overall intent.
    I would also mention green infrastructure. It was never our 
intent to----
    Ms. Norton. So does that mean that the projects to repair 
these under water would be subject to----
    Ms. McCarthy. No. It means they would not.
    Ms. Norton [continuing]. To permitting?
    Ms. McCarthy. It means we are trying to make very clear in 
the final rule, working with these urban areas that have these 
issues, what features that are involved in the capture of 
stormwater in urban areas, what features would be specifically 
not jurisdictional under the Clean Water Act, because people 
are concerned that it doesn't have the specific clarity.
    We will build that in. They will not be jurisdictional. And 
we will be outlining those with much more specificity just to 
avoid any additional concerns.
    Ms. Norton. Thank you for that clarification.
    I yield back, Mr. Chairman.
    Mr. Shuster. I thank the gentlelady.
    And, with that, I now recognize Senator Crapo for 5 minutes 
for questioning.
    And just a heads-up, Mr. Whitehouse. I assume you will be 
next, as long as no Senator more senior to you comes in, so 
stay on your toes.
    Senator Whitehouse. Stand by.
    Senator Crapo. Thank you much, Mr. Chairman.
    And, Administrator McCarthy, welcome here to the hearing. I 
appreciate your being here and our conversations that we have 
had privately about this regulation.
    As you know, I am one of those who is very, very concerned 
about the regulation. And the concern I have is that, as we 
have gone through now several Supreme Court cases trying to 
provide some clarity on what the actual jurisdiction of the 
Agency is over the Clean Water Act, it has become clear that 
the word ``navigable'' is in the statute and that the courts 
intend to insist that that be the definition and the nexus of 
what we are trying to deal with here.
    It seems to me that where the Agency is headed in 
interpreting what the Supreme Court has required, however, is 
beyond what I read as the Court's approach.
    And what I am asking you is this. In the case in which--
excuse me. In the Rapanos case, the four-Justice plurality held 
that, to be subject to the Clean Water Act, water must be 
relatively permanent surface water. There was a concurring 
opinion by Justice Kennedy that said that water must have a 
significant nexus. And then there were four Justices who 
dissented, who would have applied a broader jurisdiction based 
on intertwined ecosystems.
    Am I correct about that legal analysis?
    Ms. McCarthy. I hate to play lawyer, especially here, but I 
understand the point you are making, and it is very 
challenging.
    Senator Crapo. I think that is a fair general explanation 
of where we were.
    And, as I see it, where the Agency is heading right now is 
to identify significant connections between intertwined 
ecosystems, in essence. And if that is the case, then it 
appears that the Agency has flipped the Supreme Court case and 
is essentially pursuing the rationale of the minority and the 
dissenting opinions.
    And I would just like you to comment on that.
    Ms. McCarthy. Well, let me be clear what our intent was, 
and hopefully that intent is reflected in the proposal.
    We are trying to be very clear. And I think the one thing 
that everybody did agree to on the Supreme Court was that the 
definition of ``navigable'' is not the traditional one, and so 
we had to do a better science job at defining the connections 
between these upstreams and downstreams that would have a 
significant--potentially a significant impact on navigable 
waters.
    So we tried really hard to basically use the science to 
further define what we knew, based on science, would be the 
types of waters that would be in. We tried to make sure that we 
proposed additional exemptions or exceptions where we could 
based on science. And then the third area was where we were 
looking at what are the other waters.
    But you are absolutely right that the challenge for us is 
to look at individual tributaries and adjacent waters but, 
also, to look at where we may have systems that, because of 
their geography and function, may work as a system.
    So it is challenging, but we tried not to make assumptions 
there, as opposed to propose a number of alternative ways to 
try to narrow this case-by-case resource----
    Senator Crapo. Well, let's take a--because we have run out 
of time very quickly in this, let's take a specific example.
    Ms. McCarthy. Yeah.
    Senator Crapo. Evaporation. If water can evaporate from a 
relatively arid area after a rainstorm and by evaporating and 
going into the clouds and then ultimately raining on a 
navigable water or an ocean, does that mean that the water is 
navigable?
    Ms. McCarthy. It has to have a connection to downstream 
that is certainly more than evaporation. It has to be a 
significant connection where that water supply or that water 
body, wetland, or system would be able to significantly impact 
and degrade the downstream waters.
    Senator Crapo. But I guess the question is, is evaporation 
significant?
    Ms. McCarthy. No. No, sir.
    Senator Crapo. Would the Agency conclude that the 
evaporated water that went----
    Ms. McCarthy. No, sir.
    Senator Crapo [continuing]. That could have rained on a 
navigable water was significant?
    Ms. McCarthy. No, sir.
    Senator Crapo. So you are saying that would not be a 
jurisdictional claim under the rule.
    Ms. McCarthy. No, sir. It would not. And we tried to make 
this very clear, specifically for ditches. We tried to make 
this very clear, but we know there is additional work that 
needs to be done.
    Senator Crapo. Well, what about--let's go to the--well, not 
the reverse, but another example. What about water that seeps 
into the groundwater from a ditch or from a puddle or a 
rainstorm and then, eventually, over time, moves through the 
groundwater and ends up in a navigable river? Is that going to 
be a jurisdictionally claimed significant connection or nexus?
    Ms. McCarthy. Well, groundwater is not regulated under the 
Clean Water Act, but it can be a--establish a connection 
between upstream and downstream. It can be.
    Senator Crapo. So I am hearing you say, yes, it could be.
    Ms. McCarthy. Well, there are conditions that you need to 
look at, sir. But, again, it doesn't need to just be connected; 
it needs to be a really significant connection sufficient to 
warrant Federal jurisdiction.
    Senator Crapo. I see my time is up.
    Mr. Shuster. I thank the gentleman.
    And we have Senator Whitehouse, 5 minutes.
    Senator Whitehouse. Thank you very much, Chairman.
    It is kind of interesting, we seem to have two hearings 
going on here, one on a mythical rule that would regulate any 
place where water collects or most any water or any wet place 
and doesn't consult with States and local officials, and then 
this actual rule, which is in the middle of a very robust 
Administrative Procedure Act process with millions of comments 
and a very active role taken by the States.
    With respect to the latter hearing on the actual rule, I 
would like to ask unanimous consent that a letter from Rhode 
Island's Trout Unlimited, along with the Massachusetts Trout 
Unlimited, and a letter from Rhode Island Attorney General 
Peter Kilmartin, along with several other attorneys general, in 
favor of the actual proposed rule be entered into the record.
    Mr. Shuster. Without objection, so ordered.
    Senator Whitehouse. Thank you.
    [The information is on pages 374-378.]
    Senator Whitehouse. Ms. McCarthy, in Rhode Island, as you 
know, we take the health of Narragansett Bay very, very 
seriously. And, as you know, we have spent an enormous amount 
of effort and money to protect Narragansett Bay, specifically 
through the combined sewer overflow project, which is the 
biggest public works project in Rhode Island's history, all to 
protect the bay. As a result, our current threats to the bay 
primarily come from nonpoint sources.
    How frequent a problem around the country are nonpoint 
sources at contributing to water pollution?
    Ms. McCarthy. Well, point-source pollution--we have, I 
think, done a good job at regulating point-source pollution. 
Then, by comparison, it continues to be one of the more 
challenging issues.
    Senator Whitehouse. And return flows from irrigated 
agriculture, for instance, would qualify as a nonpoint source.
    Ms. McCarthy. Return flows from irrigation would actually 
be exempt under the Clean Water Act.
    Senator Whitehouse. Well, that is precisely my point.
    Return flows from irrigated agriculture could well contain 
fertilizer, pesticides, chemicals, manure, all of the above?
    Ms. McCarthy. It could, sir, but it is not regulated under 
the Clean Water Act today, and it wouldn't be under the 
proposal.
    And one of the good things about working with the 
agriculture community is I recognize that they are taking great 
efforts to both conserve land where it can help as a filter for 
those pollutants, but they are also looking at erosional 
features. Because it is essential to not have runoff for a 
couple of reasons, not just because it spreads pollution 
potentially, but it is also important to keep soil on the land 
enriched.
    And so there are many efforts that are underway with USDA 
and EPA to enrich that relationship and partnership and to 
recognize that.
    Senator Whitehouse. But it is clear and it is a matter of 
record that this rule would allow pesticides, fertilizers, 
manure, and other types of runoff to come off of return flows 
from irrigated agriculture, to flow through ditches that have 
less than perennial flow, and to allow leakage from settling 
basins all to go into our waters.
    Ms. McCarthy. The Clean Water Act exempts stormwater from 
agriculture from regulation.
    Senator Whitehouse. Irrespective of whether it is carrying 
pesticides and other fertilizers, manure and other 
contaminates.
    Ms. McCarthy. There is. But, as I indicate, I think there 
are many programs that seek to make sure that those issues are 
resolved in a collaborative way with the agriculture community, 
and I am confident we can expand those partnerships.
    Senator Whitehouse. Yeah. I just want to make the point 
that no rule is perfect.
    Ms. McCarthy. Yeah.
    Senator Whitehouse. And there are arguments, frankly, on 
both sides. And for those of us who have vital bays--Chesapeake 
Bay is another one that Senator Cardin just talked about--where 
the greatest vulnerability is nonpoint-source pollution, then 
the failure of this proposal to deal with that will have 
environmental consequences.
    Which isn't to say that I am going to oppose it, because I 
think the perfect doesn't necessarily always have to be the 
enemy of the good. But hearing the criticism about the extent 
of the regulation, at least when not imaginary, causes me to 
raise the concerns on the other side, that this will allow a 
significant amount of contamination to flow into waters that we 
would otherwise want to see protected.
    And, with that, I will yield back my time.
    Mr. Shuster. I thank the Senator.
    And, with that, the next three up, just to give you a 
heads-up, we will go next to Mr. Hanna, then Ms. Johnson will 
be after that, then Senator Capito after that.
    So I recognize Mr. Hanna for 5 minutes.
    Mr. Hanna. Thank you, Chairman.
    And thank you both for being here.
    It strikes me this conversation is not really about clean 
water. It is absurd to suggest that anybody here or in this 
country isn't interested in that. And the 36,000 farms that are 
in New York certainly are vested in that, and I have complete 
confidence in the New York State DEC.
    For me, when you talk about this and you say to us we have 
nothing to worry about and it is based on science, I think the 
fundamental concern is, what do you mean by ``science''? And 
the subjective nature and the kind of flow of this conversation 
is more around the fact that people don't believe it, that 
people are uncomfortable with whatever outcome you might 
produce, because, frankly, no one trusts big agencies and big 
government. And where I live, we don't need--you know, the 
theme would be, we don't need you.
    So how do you separate that distrust, moving forward, to 
come up with a rule that is based on science, knowing the 
subjective nature and the suspicion that, with all due respect, 
because we are all--and Mr. DeFazio did a great job of laying 
out the concerns that people have. They are legitimate, they 
are real.
    And the pushback you feel is not a function of people who 
aren't interested in having a great outcome. It is a function 
of people not trusting the process, not trusting the rule, not 
being comfortable. It is a huge credibility gap that I am 
concerned that, no matter what you do, you can't get through 
that. And yet I would like to believe that the outcome will be 
in the direction that you want it to go.
    But, saying that, I am perfectly comfortable with New York 
State and what we have going on now.
    With that, I would just give you a chance to speak to that.
    Ms. McCarthy. Well, let me just say that, first of all, I 
really appreciate your raising this issue, because you are not 
wrong. I think we have a communication challenge.
    We did a very good job on the science. And it wasn't us; it 
is scientists all over the country and, frankly, the world who 
have looked at this issue. But the current situation is, at 
least as we have been told by all of the stakeholders and the 
States, untenable. Because it takes too long, it costs too much 
money, there is no predictability, there is inconsistency 
across the U.S., and, as a result, we are overprotecting in 
some areas and under in others.
    And so we are trying very hard to bring certainty to make 
the situation better. And you are not wrong that we have 
received a lot of comments that said we didn't get it right, 
and they are really concerned about whether we are going to 
listen to those comments.
    And what I would ask you is to look at the history of EPA 
in terms of how we are listened--we listen to comments that 
have come in. This is a robust dialogue with the States. This 
is not just criticism; it is dialogue back and forth. And the 
proof will be in the pudding, which is, does the final rule 
clarify this? That is how rulemaking works. I want to get to 
that.
    Mr. Hanna. I couldn't agree with you more. The difficulty 
is people don't trust the Agency. People don't believe what--
generally, they are concerned. The 36,000 farmers in New York, 
in my district, they are in somewhat of a panic. Now, you could 
say to me, there is a lot of misinformation, wrong information. 
So what you said is true; the proof is in the pudding.
    I am deeply concerned that we--the notion of Government 
overreach and the Federal Government impugning all this on a 
State like New York that does a great job is not only not 
helpful but not necessary and adds a degree of additional 
burden that people are going to always reject. And I don't 
blame them.
    Ms. McCarthy. Congressman, I just don't want to overstate 
our--leave the impression that we have not received tremendous 
support for this rule. Because I don't think--I think that is 
correct. We have received both tremendous support and comments 
that question whether or not we got it right. But you have to 
remember that folks like the Association of State Wetland 
Managers have actually written in support of the rule. They are 
trying to make it better.
    What should be untenable to this body is leaving the 
uncertainty on the table today that is costing everybody time 
and money.
    Mr. Hanna. I think some of the absurd things that we have 
seen, like we saw on the photograph, you really have to push 
back on that, if you can. And if it is real, I think that also 
has to be addressed.
    But thank you very much for being here.
    Ms. McCarthy. Thank you, sir.
    Mr. Shuster. I thank the gentleman.
    Mr. Hanna. I yield back.
    Mr. Shuster. And, with that, we go to Ms. Johnson, 5 
minutes of questions.
    Ms. Johnson. Thank you. Thank you very much, Mr. Chairman 
and Chairman Inhofe and Ranking Members Boxer and DeFazio.
    In my home State of Texas, the EPA estimates that upward of 
11.5 million Texans receive some of their drinking water from 
some of the small streams and wetlands that could be protected 
by the proposed rule.
    This is important to all of our communities, and that is 
why I would ask unanimous consent to enter into the record a 
letter from 25 State elected and local elected officials and 
another letter from 25 NGOs in support of the rule.
    Mr. Shuster. I am sorry. What----
    Ms. Johnson. I ask unanimous consent----
    Mr. Shuster. Without objection, so ordered.
    Ms. Johnson. Thank you.
    [The information is on pages 379-385.]
    Ms. Johnson. Administrator McCarthy, your agency has been 
criticized on the science used to support the agencies' 
rulemaking, including the science behind protecting clean water 
in this proposed rule.
    However, last month, the EPA's Office of Research and 
Development completed the ``Connectivity of Streams and 
Wetlands to Downstream Waters'' report, which noted 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 function.
    Mr. Chairman, I would like to ask unanimous consent again 
to make a summary of this report available to the record.
    Mr. Shuster. Without objection, so ordered.
    Ms. Johnson. Thank you.
    [The information is on pages 386-403.]
    Ms. Johnson. And, in addition, EPA solicited input from 
EPA's Science Advisory Board, the SAB, on this report before it 
was finalized, and the SAB completed its review of the Agency's 
draft report in October of 2014.
    Again, Mr. Chairman, I ask unanimous consent to include a 
letter from the SAB to EPA that outlines the board's 
recommendations and advise that--in this hearing record.
    Mr. Shuster. Without objection, so ordered.
    Ms. Johnson. Thank you.
    [The information is on pages 404-406.]
    Ms. Johnson. I would like to read, Ms. McCarthy, some 
excerpts from these documents and ask for your comments.
    First, in commenting on the connectivity report, the SAB 
finds that the review and synthesis of the literature described 
in ``Connectivity of Streams and Wetlands to Downstream 
Waters'' reflects the pertinent literature and is well-grounded 
in current science.
    In addition, the connectivity report notes that the 
scientific literature strongly supports the conclusion that 
incremental contributions of individual streams and wetlands 
are cumulative across entire watersheds, and their effects on 
downstream water should be evaluated within the context of 
other streams and wetlands in the watershed.
    Now, Ms. McCarthy, I am not a scientist, but it appears 
that the scientific literature supports the broad protection of 
rivers and streams as a necessity to protect the downstream 
water quality and quantity, as well as a host of other 
benefits, such as flood control, aquifer protection, and 
habitat protection.
    Can you comment on the connectivity report and whether this 
science supports what your agencies are proposing as part of 
this clean water protection rule?
    And then, secondly, are there areas where the Science 
Advisory Board review of this report urged the Agency to change 
the report to reflect the best available scientific information 
on protection of clean water?
    Ms. McCarthy. Thank you for raising the question.
    As I indicated in some of my opening statements and beyond, 
I am very proud of the work that the Agency did to develop the 
science that the Supreme Court asked us to look at so that we 
could have a more certain and secure way of determining what 
waters were jurisdictional and necessary to protect.
    Our Office of Research and Development looked at 1,200-plus 
peer-reviewed scientific literature. They also conducted their 
own peer-reviewed process. It was also peer-reviewed by our 
Science Advisory Board. I think the science is very strong.
    The real question is, how well have we reflected the 
science in the rule itself? And I think the Science Advisory 
Board was very supportive of what we did, but we need to make 
sure that we look at comments and know all of the nuances that 
are in the outside world and we are cognizant of those as we 
draft the final report.
    Ms. Johnson. Thank you very much.
    I think my time has expired.
    Mr. Shuster. I thank the gentlelady.
    It is now my pleasure--I didn't know I would get to do this 
this soon--to recognize my former colleague, the Senator from 
West Virginia, Mrs. Capito, for 5 minutes.
    Senator Capito. Thank you, Mr. Chairman.
    And thank you all for being with us here today.
    Administrator McCarthy, first of all, I would like to say, 
living in the Kanawha Valley in Charleston, West Virginia, we 
suffered, a year ago, a catastrophe in our drinking water. And 
I know you are well aware of it. I would like to thank the 
EPA's help in trying to mitigate that disaster.
    But I would caution all my colleagues here, don't take your 
clean drinking water for granted. I know we don't. But it has a 
lot more ramifications than just putting the tap on and being 
able to have a nice glass of water.
    So thank you for that.
    One of the more alarming provisions, I think, that I am 
concerned about in the State of West Virginia is the authority 
over lands that are wet only--and I have heard some of the 
conversation before--when it rains, called ephemeral streams.
    My concern is that ``ephemeral'' appears over 75 times in 
your preamble to the proposed rule, yet it is not clearly 
defined. And it says it is a stream--and your connectivity 
report defines ``ephemeral stream'' as a stream or river that 
flows briefly in direct response to precipitation.
    Well, I have a map that the EPA created, and it is a high-
resolution map of the streams of West Virginia. Here it is. You 
really can't see it too well, but it is the green and the blue. 
It is basically covering the entire State, which is designated 
streams and waters.
    So, in West Virginia, we have a lot of land, as you know, 
that is not flat, so when it rains the water runs downhill. We 
have more real streams per square mile than any other State, 
which I think a lot of the larger States would find remarkable.
    But this map, that is almost totally covered in color that 
was done by the EPA to show water, does not even cover any of 
the ephemeral drainages. And if you bring these so-called 
ephemeral waters into the rule--and I noticed in your 
statements that you are going to try to exempt that--I think it 
really brings a lot of confusion and uncertainty.
    And so, I guess, this is unacceptable in a State like West 
Virginia. You can't let the whim of a particular Corps or EPA 
employee decide which private property is now federally 
regulated.
    I have another picture of a gully here. I call it a West 
Virginia gully, but is it a West Virginia gully or is it an 
ephemeral stream? We have yet to figure that out, and how can 
you tell?
    So I guess I would ask from you a commitment, a solid 
commitment, that the final rule will not take control over 
these ephemeral streams that are ill-defined and, for a State 
like ours, could have great impact.
    Ms. McCarthy. I just dropped my pen. Sorry.
    First of all, thank you, Senator, for the thank you. And my 
heart goes out to West Virginia, and it did during the spill 
and beyond. So thank you for working with us on that, and I was 
happy to be able to help.
    On the ephemeral-stream question, I think people may not be 
aware, but ephemeral streams are often found to be 
jurisdictional today. And so the intent of this rule was to try 
to provide much more certainty on the basis of the science so 
that we could be clearer about what streams are important to 
protect and what were not as important and wouldn't have a 
significant impact on those downstream waters that we are 
seeking to protect.
    You have my absolute word that we are going to try to 
narrow what we are claiming jurisdiction over so that we are 
consistent with the law and the science and we are as clear as 
possible about what is in and what is out.
    Senator Capito. Well, I think that is going to be a 
bureaucratic nightmare for you and, thus, a bureaucratic 
nightmare for anybody who is trying to get a definition. 
Because, as you know, there are millions of these all 
throughout probably our State and across the country. And it is 
exceedingly important.
    Ms. McCarthy. I think----
    Senator Capito. The other question, if I could ask one more 
question real quickly, much of our manufacturing is small and 
medium-sized.
    Ms. McCarthy. Yeah.
    Senator Capito. You know, the last thing a small or medium-
sized manufacturer or business needs to get caught up in is a 
bureaucratic maze of, am I registered, am I not? How are you 
going to mitigate that?
    And I would sort of echo what one of my colleagues said. 
The trust factor here with your agency is not as good in our 
State as I am sure we would all like it to be. And that is a 
real question I have from my employers in the State.
    Ms. McCarthy. Well, we have done an extensive amount of 
outreach to the small-business community, and we feel obligated 
and, actually, honored to be able to spend a lot of time with 
them.
    There are a lot of small businesses that have written in in 
support of this rule for the very reason you are talking about, 
is they rely on clean water, and sometimes their voice isn't as 
loudly heard. So we have brought them into the system. We have 
some great comments, and we will resolve these issues and make 
this more certainty.
    Because the last thing a small business needs to do is ask 
questions about their obligation when we could have spoken more 
clearly in the rule to tell them what their obligation was. I 
don't want to waste their time and money, nor ours and others', 
and I think we can do a better job.
    It is a difficult process, but we will work with the small-
business community, and we will make sure that we eliminate 
confusion as best we can.
    Senator Capito. Thank you.
    Mr. Shuster. I just want to point out that the question was 
asked before about these ephemeral features, and you still 
haven't declared that you will exempt them. I don't know how we 
are going to make it more consistent and put certainty out 
there if you are not willing to do those types of things.
    Second question, just a quick--were you aware of that map 
of West Virginia and all the color that was there? It appears 
as though the entire State of West Virginia----
    Ms. McCarthy. It was hard for me see, but, again, Senator, 
we--I mean, Congressman, we have not----
    Mr. Shuster. No, don't do that.
    Ms. McCarthy. Chairman.
    Mr. Shuster. They will get upset if you----
    Ms. McCarthy. Chairman. Chairman. How about if I say 
``chairman''?
    Mr. Shuster. People on both sides of the Capitol will get 
upset if you call me a Senator.
    Ms. McCarthy. Yeah, yeah. I will get in deep trouble.
    Again, if that is a map similar to the one that Senator 
Barrasso raised, that has nothing to do, as far as I know, with 
any decision concerning jurisdiction of the Clean Water Act.
    Mr. Shuster. That answer really concerns me, but we will go 
on to Mr. Webster for 5 minutes.
    Mr. Webster. Thank you, Mr. Chair.
    And thank you all for appearing today. I am over here on 
your left.
    Ms. McCarthy. Oh, thank you.
    Mr. Webster. Hi.
    And I am from Florida. Florida is basically a wetland. If 
you dig down about a foot and a half just about anywhere you 
are, it is a wetland. And so you can have these maps, but our 
map may be the entire State, in some cases, if we thought about 
it.
    I serve three counties. One of those is named Lake County. 
It has thousands of lakes. They are all interconnected with all 
kinds of canals and other things that could be above water, 
above the surface, could be below. And, again, because of the 
aquifer being so close to the top of the ground level, a lot of 
the flows happen there.
    So I think the big concern that I am hearing, especially 
from our agriculture community, is maybe some nondefinitive 
words. And those words mean a lot.
    So I was looking at the economic analysis, which, in there, 
in several places, it says that the agencies project that the 
proposed action to change the definition of ``waters of the 
U.S.'' would increase assertion of the CWA. So the jurisdiction 
is going to increase. I mean, you have said that several times 
in this report that was done jointly by the EPA and the Army 
Corps.
    But inside that, these words were what disturbs most of the 
people in my area that have contacted me, and that is it says 
that it is not--these things, these examples of these cost 
estimates and so forth are not definitive but merely 
illustrative.
    The fear is this. The fear is that maybe the data is 
incomplete because the scope is not fully determined within 
this proposal, in that the scope could increase just on a whim. 
And I think that is the fear of these words that are used, 
especially the one that just says ``merely illustrative.'' That 
is a scary statement, as opposed to something definitive.
    Ms. McCarthy. Let me try to explain it, because I totally 
appreciate the fact that you are right, words do matter, and 
explaining this better will be hopefully what we are able to 
do.
    First of all, relative to the idea that the economic 
analysis indicates that we are going to get more water into the 
system of Federal regulation, it doesn't change the 
jurisdiction of the Clean Water Act. And, in fact, what we have 
tried to do is narrow the applicability here based on sound 
science.
    But the most important thing to remember is that we 
wouldn't be here if there weren't confusion about what is in 
and what is out. And when we took a look at in practice what is 
happening, we believe that this will clarify it, and some of 
the waters that are essential to protect for drinking water and 
other resources will end up being better protected.
    The word ``illustrative'' is the one I want to explain 
most, is this is a jurisdictional rule, and because it is a 
jurisdictional rule, it doesn't have a direct and immediate 
impact where we can estimate the economics, for example, like 
other kinds of rules that directly impact industry and set 
standards.
    So the reason why we say it is illustrative is that it is 
all about whether or not somebody wants to pollute or destroy a 
wetland, and, if you do, there are costs associated with that. 
But what we are trying to do is reduce the cost and time to ask 
the question about what is jurisdictional so, if you actually 
do want to pollute or destroy a wetland, you have a better idea 
of what needs a permit, what doesn't, and how go about getting 
that defined.
    Mr. Webster. OK. Well, and I appreciate that answer. All I 
will tell you is ``merely illustrative'' is not as good as 
definitive. And if that can change, I would very much 
appreciate it, because there are just fears out there when you 
see words like that.
    Thank you very much. I yield back.
    Mr. Shuster. I thank the gentleman.
    With that, I recognize Mr. Cummings for 5 minutes of 
questioning.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Ladies, it is very good to see both of you.
    And, Administrator McCarthy, it was good to be at EPA a few 
weeks ago. I want to thank all of your employees for what they 
do every day and both of your employees for trying to make our 
environment safer and cleaner.
    Let me begin by saying that one of my highest priorities is 
supporting the restoration of the Chesapeake Bay. Restoration 
of the bay has been and will continue to be a long-term 
project.
    Furthermore, our work is made easier because we know what 
is harming the bay. The Chesapeake Bay is one of if not the 
most studied water bodies in the world. We understand in great 
detail how nitrogen, phosphorous, and sediments enter the bay 
from runoff that flows across impervious surfaces through 
eroding urban streams and aging storm sewers and across farm 
fields. We understand how the discharges that are produced by 
wastewater treatment facilities and that leach from septic 
systems flow into the bay. We also understand the impact of the 
atmospheric deposition.
    We do not need more studying. We need to stop the inflows 
of pollutants harming the bay, and we need to ensure that we 
have clean water throughout the Nation.
    And I just have two questions, Administrator McCarthy.
    Under section 303(d) of the Clean Water Act, the EPA has 
encouraged some States to put into place total maximum daily 
load. Maryland and other States in the Chesapeake Bay watershed 
have led that charge. What gains do States like Maryland and, 
by extension, the Chesapeake Bay watershed, stand to receive 
from an updated ``waters of the U.S.'' rule?
    And my second question is: The Chesapeake Bay region has 
for decades been working to identify and address ongoing 
sources of pollution to the bay. How does this proposed rule 
affect these efforts? Has the current confusion surrounding the 
scope of clean water protections complicated these cleanup 
efforts?
    And I will listen for your answer.
    Ms. McCarthy. Well, first of all, thank you for coming to 
EPA and for your congratulations and thanks to the staff, who 
are working very hard.
    First of all, let me thank you for all the work that 
Maryland and others have done on TMDL. Let me explain to you 
what I think the benefits of this rule are.
    We are faced with significant uncertainty at the moment, 
which means that people are asking sometimes questions that 
take a long time to answer about whether or not something is an 
important water to protect, whether if they intend to pollute 
it or destroy it in some way, what process they need to go 
through. And so people are focusing their resources sometimes 
and money on areas where they don't need to look, and they are 
missing areas that are significant in terms of our ability to 
protect clean water and safe water for everyone.
    So this is an ability to try to look at the science, cut 
through some of that uncertainty, focus people where the 
attention ought to be focused, allow our agriculture community 
to farm and allow folks to ranch and do all of the work that is 
so important to us, but also make sure that we are focusing on 
the waters that we really need to protect. It will save 
everybody time, everybody money, and it will also be respectful 
of what the law requires us to do and the science is telling us 
is most important.
    Mr. Cummings. And, you know, one of the things that Senator 
Cardin talked about is that--and we find it a major problem in 
Maryland; I am sure they find it throughout the United States--
is the trying to make sure that our farming community is 
protected and, at the same time, trying to make sure that we 
keep our water clean.
    You talked about it a little bit, but, I mean, tell us a 
little bit more about your interaction with the Secretary of 
Agriculture. And how do we strike that balance?
    Ms. McCarthy. Well, the USDA and EPA have been working 
hand-in-hand in terms of understanding the concerns of the 
agriculture community so we can better address those concerns 
in a final rule.
    We are working closely, as you know, with how we align what 
we need to do to protect water, especially beautiful resources 
like the Chesapeake, and how does USDA craft programs that work 
with the agriculture community to support conservation efforts, 
to support the building of buffer zones that connect as filters 
that can protect water quality.
    And so we are working hand-in-hand to understand what we 
need to do to ensure that this is clear so that the agriculture 
community recognizes that the exemptions in the law are indeed 
protected, that they recognize that this rule is all about 
narrowing the jurisdiction of the Clean Water Act based on what 
science is telling us is important and not important, and that 
we continue to work hand-in-hand with them so they can produce 
the food, fuel, and fiber we all really rely on----
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Ms. McCarthy [continuing]. And do it in a way that is 
certain.
    Mr. Cummings. Thank you.
    Mr. Shuster. Thank you very much.
    And just to give everybody a heads-up, we are going to go 
to Senator Boozman next and then Senator Sullivan, Congressman 
Massie and then Congresswoman Napolitano.
    So, with that, I recognize for 5 minutes Senator Boozman.
    Senator Boozman. Thank you very much, Mr. Chairman.
    Thank you for being with us, Administrator McCarthy.
    I am concerned that the EPA is putting out misleading 
information to justify its efforts to take control of almost 
all the water in our country away from State and local 
communities' jurisdiction.
    Last summer, EPA's Acting Assistant Administrator for Water 
posted a blog on your agency Web site explaining which ditches 
the EPA wanted to control. The blog described such ditches as, 
quote, ``generally those that are essentially human-altered 
streams, which feed the health and quality of larger downstream 
waters,'' end quote.
    And I would ask unanimous consent that this be included in 
the record.
    Mr. Shuster. Without objection, so ordered.
    [The information is on page 407.]
    Senator Boozman. Also, you used the connectivity report to 
justify this power grab. And it has a graphic where the only 
example of a ditch is an altered natural stream.
    The EPA is clearly trying to convince Americans and 
Arkansans that this is no big deal and not a massive increase 
in Federal jurisdiction. However, your proposed rule goes far 
beyond human-altered streams when it comes to regulating 
ditches and other channels and water conveyances built by 
people.
    I would really ask three things.
    First of all, will you commit to us that your final rule 
will actually match the rhetoric that the Agency is coming out 
with, posted on such things as the Water Administrator's blog?
    Specifically, will you commit that the only artificial 
channels that would be jurisdictional under the final rule will 
be channelized natural streams?
    And, lastly, I want to clarify, I don't mean streams that 
were channelized historically. Constitution Avenue, a major 
road in Washington, DC, used to be Tiber Creek. Potentially, 
your final rule could make the curbs along Constitution Avenue 
into federally controlled waters of the United States.
    Ms. McCarthy. Senator, I am glad you brought up the issue 
of ditches, because the proposal actually expands exclusions to 
the jurisdiction of the Clean Water Act. It doesn't cut 
jurisdiction. And I can explain that, but let me go right to 
the heart of the matter.
    What we are really most concerned about are ditches that 
are actually channelized tributaries, that actually were 
tributaries and look and smell and taste like them. The other 
issue, though, however, is that there are ditches that are 
directly connected to the tributary system that actually have 
the flow and the duration in them, where they have features 
that are consistent with how we define tributaries.
    So there are those two concerns that we need to address in 
the final rule more clearly, but we are doing our best to 
indicate what is in and what is out. And we, in fact, have very 
clearly reduced what we are considering to be the jurisdiction 
under the Clean Water Act in this proposal. And I can explain 
that if you would like me to take the time.
    Senator Boozman. So you are committing that the only 
artificial channels that would be jurisdictional under the 
final rule would be channelized natural streams?
    Ms. McCarthy. I think there is a flow component here that I 
want to make sure that I don't miss.
    What is happening today is that, if you construct a ditch 
in dry land and it flows less than intermittent, it is 
excluded. What we are trying to say and what we have said in 
this proposal is that ditches constructed in dry land and flow 
less than perennial would be excluded. So it expands the 
exclusion.
    So there is a flow component that needs to be considered.
    Senator Boozman. Along a separate issue, will you commit to 
Congress that your final rule will not regulate groundwater or 
groundwater withdrawals that affect flows to surface waters?
    Ms. McCarthy. Groundwaters are exempt from jurisdiction 
under the Clean Water Act, and we----
    Senator Boozman. Groundwaters or groundwater withdrawals?
    Ms. McCarthy. Both. We are not impacting groundwater 
withdrawals either.
    Senator Boozman. OK.
    Thank you, Mr. Chairman.
    Mr. Shuster. Thank you.
    I now recognize Senator Sullivan for 5 minutes.
    Senator Sullivan. Thank you, Mr. Chair.
    Administrator McCarthy, nice to meet you here. I look 
forward to working with you, meeting with you and your staff in 
a respectful fashion.
    As you can imagine, in Alaska, we have a lot of concerns. 
We love our environment--most pristine environment in the 
world.
    Ms. McCarthy. Yes.
    Senator Sullivan. We are really good at taking care of it, 
the State is, our people are. But Alaska is also home to 63 
percent of the Nation's water subject to Clean Water Act 
jurisdiction and 65 percent of the Nation's wetlands. So, as 
you can imagine, this is a very big deal for the people I 
represent, many of whom oppose this rule.
    The Resource Development Council in Alaska believes, 
looking at this rule, that it could expand that already 
incredible jurisdiction in Alaska by one-third.
    So I just want to ask a few important questions to start 
out with.
    As you know, Ms. McCarthy, the EPA is a creation of 
Congress, and all regulations promulgated by the EPA must have 
a substantial basis in the law. Do you agree with that?
    Ms. McCarthy. Yes. The regulations should reflect what is 
in the law. Yes.
    Senator Sullivan. So one request I had, kind of going 
forward, is a commitment, out of respect for this committee and 
the Members of Congress, from you and your staff that any 
action, any regulations going forward, that every time you are 
testifying, that you or your staff specifically point out the 
specific provisions of the law that you are acting under, 
whether it is action or regulation.
    Will the EPA commit to doing that in the future?
    Ms. McCarthy. I am sorry, Senator. I don't exactly know 
what you are asking----
    Senator Sullivan. But just----
    Ms. McCarthy [continuing]. Me to commit to. But, certainly, 
we will----
    Senator Sullivan. A regulation like this----
    Ms. McCarthy. Yes.
    Senator Sullivan [continuing]. When we start out----
    Ms. McCarthy. Yes.
    Senator Sullivan [continuing]. Come to the committee of 
Congress that has jurisdiction and say, here is the exact 
provision in the statute that gives us the power to promulgate 
this reg.
    Ms. McCarthy. We make it clear, when we propose a rule, 
what the actual rule language is and how it changes. And we 
certainly discuss what the law says and our interpretation of 
the law----
    Senator Sullivan. OK.
    Ms. McCarthy [continuing]. And how the regulations are 
consistent.
    Senator Sullivan. Great.
    So let me get to a little bit of the specifics on this 
regulation. So, just in terms of chronology, how I understand 
it, the Clean Water Act defines ``waters of the U.S.'' Several 
Supreme Court cases--Riverside, Rapanos--defined it, further 
limited it.
    In May 2009, the EPA came to Congress, urged Congress to 
expand the jurisdiction of the Clean Water Act to the furthest 
extent possible. And, from my perspective, that is so far, so 
good. When you want to expand the jurisdiction of the EPA, you 
have to do it through the Congress, not through regulations.
    Congress didn't do this. And, in the meantime, the EPA was 
sued by several States on a Clean Air Act regulation, and the 
Supreme Court reprimanded the EPA for what it viewed as a 
significant Federal overreach in terms of separation of powers 
in the Utility Air Regulatory Group v. EPA.
    Did you have an opportunity to read that case, the Supreme 
Court case?
    Ms. McCarthy. Yes, I did.
    Senator Sullivan. So there was a provision in that Supreme 
Court case where the Justices said the ``EPA's interpretation 
is also unreasonable because it would bring about an enormous 
and transformative expansion in EPA's regulatory authority 
without clear congressional authorization. When an agency 
claims to discover in a long-extant statute an unheralded power 
to regulate a significant portion of the American economy, we 
typically greet its announcement with a measure of skepticism. 
We expect Congress to speak clearly if it wishes to assign to 
an agency decisions of vast economic and political 
significance.''
    I am quoting that because I think that is exactly what is 
happening here, a significant expansion of EPA jurisdiction 
over the U.S. economy, over certainly my State, and I don't 
think that the Congress has authorized that authority to the 
EPA.
    So I will just be a little bit frank. I don't even think 
this is a close call. I don't think the EPA has the power to 
issue this regulation under the Constitution and the statute. I 
think you are trying to change the statute, and that clearly is 
a power that belongs to the Congress.
    So I want to work with you on this, but I want to request 
that you withdraw this regulation, start over. There are 22 
States that have made a similar request. And I think that that 
is an important way that you show respect not only to the 
States but to Congress.
    Ms. McCarthy. Senator, I very much respect Congress as well 
as your opinions, and I will do my best to work with you. I 
would say that I don't think the Agency is in any way seeking 
congressional action or otherwise to expand the jurisdiction of 
the Clean Water Act. What we are just trying to do here is to 
better define that in a way that everybody can be more sure of 
its implementation and we can save everybody time and 
resources.
    And I know this is a big issue in your State, Senator, and 
I am happy to sit down with you. I think we worked very hard to 
align ourselves with a good government in Alaska, and we are 
trying to continue that partnership. And if there is anything 
that we can do to address your issues more specifically, I 
would enjoy working with you on it.
    Senator Sullivan. Well, I look forward to working with you 
as well.
    Mr. Shuster. The gentleman's time is expired.
    Senator Sullivan. Thank you.
    Mr. Shuster. Thank you, Senator.
    And, with that, just to give everybody the lineup, we are 
going to go to Congressman Massie, then Napolitano, then 
Meadows and Edwards, in that order.
    So we have 5 minutes for Mr. Massie.
    Mr. Massie. Thank you, Mr. Chairman.
    After sitting here for 2 hours in this hearing talking 
about ``science-based rules,'' I am reminded why a lot of 
people think that Washington, DC, is a 10-mile square 
surrounded by reality.
    You know, I studied science and engineering at MIT for 6 
years, but you don't have to be a scientist or an engineer to 
understand you can't do science without numbers and you can't 
do science without units.
    I have heard terms like ``flow,'' ``duration,'' ``wet,'' 
``dry,'' ``intermittent,'' but these things have not been 
defined today and are not defined in your rule. I have read the 
rule. It uses terms of art, but it doesn't use terms of 
science.
    And that is why we are going around the bush here chasing 
our tails, is because we are not talking about numbers and 
units. The units we should be using and the units that I see in 
State law are acre-feet, gallons per minute, 100-year flood, 
500-year flood. Let me give you an example.
    Here is a definition of ``flood plain'' from your rule. It 
means ``an area bordering inland or coastal waters that was 
formed by sediment deposition from such water under present 
climatic conditions and is inundated during periods of moderate 
to high water flows.''
    What the heck does ``moderate to high'' mean? Could you put 
these rules--you say they are based on science. A science-based 
rule would say 100-acre flood or a--I am sorry--a 100-year 
flood or a 500-year flood. That is what I see missing from 
these rules, and that is why we are concerned.
    Why are there no numbers or units in the rule?
    Ms. McCarthy. Actually, we put both definitions as well as 
we teed up a number of potential ways to actually bring more 
bright lines into the system. We actually took comment on 
whether or not it should be 100-year flood plain. So we really 
were paying attention to the science.
    Mr. Massie. Well, I would recommend that you heed those 
comments and use them. This is the fourth hearing we have had 
on this. Mr. Perciasepe answered a few questions for me.
    I believe he was your Deputy Administrator. Is that 
correct?
    Ms. McCarthy. That is correct.
    Mr. Massie. I asked him about the cost of implementing this 
rule, and he once testified it was $100 to $200 million. And 
then he later clarified it to say it was $160 to $280 million.
    Do you agree with those numbers to implement it?
    Ms. McCarthy. If you give me 1 second, I can tell you what 
the numbers are. I see the costs identified in the proposal as 
$162 million to $278 million.
    Mr. Massie. OK. I am glad you agree with him.
    Because on page 5 of your written testimony today, you say, 
``The rule provides continuity with existing regulations where 
possible, which will reduce confusion and''--I am quoting you 
here--``will reduce transaction costs for the regulated 
community and the Agency.''
    So how can you say it is going to reduce transaction costs 
for the community and the agencies and then testify that the 
cost is $160 to $280 million?
    Ms. McCarthy. Well, because we are looking at the overall 
cost of implementation and then looking at how effective we are 
in reaching those waters that are necessary to protect.
    And I think I made it clear earlier that part of the 
implementation challenge is that there are some waters which we 
are failing to protect that need to be protected and there are 
others where we are spending significant costs and money to go 
after waters that are not essential for protection. And we are 
trying to clarify that.
    Mr. Massie. Well, you know, outside of this 10-mile square, 
that sounds like Washington, DC-speak. You are saying it is 
going to save money in your testimony, but you are testifying 
that it will cost money.
    I have one final question. This has to do with the farmers.
    We have a lot of farming in Kentucky. I farm myself. And on 
page 6 of your testimony, you say, ``This rule maintains the 
longstanding exclusions for prior converted cropland.'' And I 
am glad for that. That sounds generous.
    But anybody who farms knows that you don't always plow that 
cropland every year. Some years you have good years. Some years 
you have bad years. Some years you use it for pasture. Some 
years you merely let it go fallow.
    And one concern that I have seen with the Army Corps and 
the EPA is this term called ``naturalization'' or 
``renaturalization,'' where, if something is untended for a 
period of time, they say it is reverted back to its natural 
state, and now this exemption no longer applies.
    Will this exemption apply if somebody hasn't farmed that 
cropland or has used it for some other farming purpose or just 
let it go fallow for some period of time?
    Ms. McCarthy. You know, I would--I don't think that I can 
specifically answer your question other than to say this 
doesn't change the way in which the Agency has been working 
with the farming community. And the definition----
    Mr. Massie. Assistant Secretary Darcy, would you care to 
answer that?
    Ms. Darcy. I concur with the Administrator. The prior 
converted cropland exemption remains. I think your question is 
how far out does prior converted cropland extend.
    Mr. Massie. Correct.
    Ms. Darcy. What we have done historically with prior 
converted cropland would still be the case under the proposed 
rule.
    Mr. Massie. What is that? What period of time?
    Ms. Darcy. I would have to get back to you on that because 
I don't know if that----
    Mr. Gibbs [presiding]. The gentleman's time is expired.
    Mr. Massie. Thank you. My time is expired.
    Mr. Gibbs. Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    And I do ask unanimous consent to include in today's 
hearing for the record----
    Mr. Gibbs. So ordered.
    Mrs. Napolitano [continuing]. Comments from the California 
State Water Resources Control Board, which I quote, ``Strongly 
support the agencies' intent to adopt regulations to provide 
clarity to the definition of 'waters of the United States' in 
order to improve efficiency, consistency, and predictability 
while protecting water quality, public health, and the 
environment.''
    Mrs. Napolitano. Mr. Chairman?
    Mr. Gibbs. Without objection, so ordered.
    [The same letter from the California State Water Resources 
Control Board was submitted by Senator Boxer and is on pages 
317-326.]
    Mrs. Napolitano. Thank you.
    And, also, Senator Boxer has already included in the record 
a letter from California Association of Sanitization Agencies, 
which generally is supportive of the administration's efforts. 
Also, they are requesting greater clarity on certain points.
    And they state that the CWA is a ``40-year-old statute that 
has not been updated to address the needs and realities of 
today's water quality problems.'' For the record.
    Mr. Gibbs. Without objection, so ordered.
    [The letter from the California Association of Sanitization 
Agencies submitted by Representative Napolitano is on pages 
408-411 and differs from the one submitted by Senator Boxer.]
    Mrs. Napolitano. Thank you.
    I applaud these and many other groups that recognize this 
proposed rule in an attempt to undo confusion and uncertainty 
created by the former administration so that we may protect 
both the Nation's economy as well as its water-related 
environment.
    Bush guidance comments, which this rulemaking will replace, 
are simply unsustainable. They fail to live up to the 
congressional framework of the Clean Water Act as well as the 
framework outlined by the courts.
    Simply put, this guidance fails to protect our Nation's 
water, especially our drinking water. Rulemaking is necessary 
because nearly 125 million Americans, over one-third of the 
population, rely on public drinking water systems that draw 
from surface waters.
    Of that number, 117 million Americans obtain their drinking 
water from intermittent ephemeral or headwater streams. In 
California alone, my State, over 7 million rely on intermittent 
ephemeral and headwater streams for their daily drinking water 
supply.
    So we feel we must all do what we must to protect these 
water resources because this is the only resource we all have. 
So when this water dries up, our way of life and our local, 
regional and State economies will dry up with it.
    Opponents of the clean water rulemaking frame is an attack 
on private interest, calling it a land grab fueled by Federal 
greed. However, our Nation has never recognized a right to 
pollute, which is what opponents of this rule are asking for.
    Polluters would rather preserve the regulatory shadows 
created by the former administration where they can fill 
wetlands or destroy waters with little to no accountability, as 
was the case in San Gabriel Valley, where we have a polluted 
area the size of a small State that has taken over $95 million 
to start working to just get it cleaned up. And we have got 
another $95 million or more to go. This is because of 
fertilizers, pesticides, et cetera, that have seeped into the 
groundwater, into our drinking water.
    If private interests are successful in blocking this rule, 
it is the public who will suffer. In my State, it will mean 
less publicly available drinking water, less protection over 
those drinking water sources that remain, and an increased 
likelihood of flooding for our communities.
    So we need to let the administration finish what they 
started. Protect the waters of the U.S. with this current 
rulemaking.
    I do have a couple of things that I do have--in June of 
last year, I did ask some questions in regard to stormwater 
drains and, also, water recycling, which you have addressed, 
and I hope that you will continue working with our agencies 
throughout the Western States, which are heading into drought 
cycles again, to be able to protect recycled water. As you say, 
stormwater cleanup is very important to the whole Nation.
    There are many other things that we have discussed ad 
nauseam, I am sorry to say. We need to put it in language that 
people will understand and publicly let the people know that 
EPA is there to help clean the water, but do so in a way that 
is going to help business, going to help farming.
    And I applaud your effort to be able to clarify and reach 
out to everybody. And I noticed in the reports there is not as 
much outreach to California as I would have liked to see 
insofar as the water agencies that I know are very critically 
involved in this.
    So thank you very much for all the work you do. And let's 
work together, hopefully, to be able to ensure that the 
proposed rulemaking comes before Congress and we can all agree 
to disagree, but agree on the things we need to agree on.
    Thank you very much.
    Ms. McCarthy. Thank you.
    Mr. Gibbs. I have two quick questions to the witnesses.
    You keep saying that you will fix things in the final rule, 
that the questions have been raised.
    Will you do a supplemental proposal so the public will have 
a chance to review that before you do the final rule, then, 
since there has been so many questions raised about what sort 
of things are going to get fixed in the final rule?
    Ms. McCarthy. Well, we received a number of comments, as 
you know, and we are working with the stakeholders on the 
issue. But a supplemental would only be required if we 
certainly go outside the boundaries of what we have already 
teed up in the proposal. And at this point we intend to 
finalize the rule.
    Mr. Gibbs. OK. Mr. Meadows, you are recognized for 5 
minutes.
    Mr. Meadows. Thank you, Mr. Chairman.
    Thank each of you for being back with us.
    Ms. McCarthy, I wanted to wear my Boston Red Sox hat today 
just so you would know that----
    Ms. McCarthy. We did, too.
    Ms. Darcy. I am from Massachusetts, too.
    Mr. Meadows. And I do want to say that there are elements 
where some of the issues that we are talking about today that 
we do hear a responsive ear. I am troubled, however, by some of 
the testimony, as you would probably be well aware.
    I have in the past received permits from the EPA from our 
State, and, as I deal with that, the ambiguous nature of rules 
and guidelines for those permits, I don't see that being 
clarified in this rulemaking.
    So can you tell me today, how much quicker are those 
permits going to get issued?
    Ms. Darcy. Congressman----
    Mr. Meadows. Because I don't see anything in the rule. I 
read it and----
    Ms. Darcy. Could I answer that one, Congressman?
    Mr. Meadows. Sure.
    Ms. Darcy. We think that by getting more clarity as to what 
is in and what is out is going to be able to inform our 
regulators within the agency.
    Mr. Meadows. But this doesn't do that. I mean, going back 
to what Mr. Massie just said, the definitions are still 
ambiguous.
    How in the world can you say, well, medium flow, moderate 
flow? Moderate flow, to me, is very different, maybe, than 
moderate flow to you. The definitions even in the rules are not 
specific.
    So how can the average person look at those and say that 
they can implement it any faster?
    Ms. McCarthy?
    Ms. McCarthy. Well, I think we have done a good job at 
teeing up opportunities for narrowing where there is 
uncertainty and, also, narrowing where you have to do case-by-
case study based on what the science tells us is in and what 
the science tells us isn't.
    And I would just ask you to take a look at that as well as 
alternatives we have teed up, because it is clearly our intent 
to reduce uncertainty here, which will, in essence, reduce 
costs associated with it.
    Mr. Meadows. All right. So you mentioned the cost.
    Ms. McCarthy. Yes.
    Mr. Meadows. And my good friend from Kentucky mentioned the 
cost.
    Ms. McCarthy. Yes.
    Mr. Meadows. So if we are regulating and making rules on 
less water, how could that be more costly? How could it cost 
$200 million?
    Ms. McCarthy. Well, let me try to clarify it because I 
frankly think I did not do a very good job at that. So let me 
take another shot at it.
    The cost increase that we see relates specifically to what 
we believe to be mitigation impacts and what would need to be 
done to reduce pollution and impact on sensitive waters that we 
believe will identify----
    Mr. Meadows. So you are going to increase the mitigation 
cost?
    Ms. McCarthy. No.
    Mr. Meadows. Because I have gone through mitigation and we 
already have a two-for-one, one-for-one, four-for-one kind of 
mitigation.
    What mitigation are you talking about?
    Ms. McCarthy. I explained before that I think there are 
areas--they are small, but there are areas where we are not 
sufficiently protecting water that should be. We are being very 
clear, I think, about what is in and what is out.
    But when you apply that to what is being implemented today, 
there are some areas where they would actually require a permit 
and require mitigation associated with that.
    That is not to increase the per capita transaction--the 
transaction cost, but it is just a reflection that it will be 
clearer about some areas that should be protected because they 
are significant and what areas are not.
    Mr. Meadows. All right. So maybe dumb it down for me.
    How do we make it clearer and easier and it becomes more 
costly? I don't--explain it to the American people.
    Ms. McCarthy. Well, we have made, I think, an opportunity 
available to take a look at how you define tributaries. Right 
now, that is not well defined. We have defined that----
    Mr. Meadows. Yeah. Because I live on the Continental 
Divide. Everything is downhill for me.
    Ms. McCarthy. We have increased exclusions and exemptions. 
We have done at least a step forward on ditches, what is in and 
what is out.
    We have tried very hard to identify this adjacency 
question, which the Supreme Court told us we had to define. We 
defined it by proposing a variety of options to take care of 
that.
    We have actually identified opportunities to take these 
other water sections and to try to find ways of doing more 
categorical exemptions or inclusions----
    Mr. Meadows. All right. So let me reclaim my time real 
quickly because I have got one last question.
    Ms. McCarthy. OK.
    Mr. Meadows. Ms. Darcy and you and Mr. P, as I would call 
him before he retired----
    Ms. McCarthy. Bob Perciasepe.
    Mr. Meadows. Yes--mentioned that this would not affect 
farmers, that, really, they are kind of quasi-grandfathered in, 
and, yet, I assume that the American Farm Bureau, the North 
Carolina Farm Bureau--none of them have come out to endorse 
this.
    So if stakeholders are not endorsing this rulemaking, what 
is the problem?
    Ms. McCarthy. Well, it is a complicated rulemaking, and 
some areas are clearer than others. And we will be working with 
them on it.
    But the agriculture community deserves to have more 
certainty than what is available to them today, and we are 
going to try to do that in working with the agriculture 
community.
    And we have not done anything to narrow exclusions or 
exemptions in the Clean Water Act. In fact, we are expanding 
those exemptions and exclusions in this rule.
    Mr. Meadows. I appreciate the patience of the Chair.
    Mr. Gibbs. The gentleman's time is expired.
    Ms. Edwards, you have 5 minutes.
    Ms. Edwards. Thank you, Mr. Chairman.
    And I thank the witnesses as well for your patience.
    I would ask unanimous consent to enter into the record 
letters of support and resolutions from various of our small 
municipal jurisdictions out in my congressional district in our 
State--well, one of those is not small, the city of Baltimore--
but cities like College Park, Capitol Heights, Edmonston, 
Forest Heights, Mount Rainier, New Carrollton, and the city of 
Rockville--letters of support from them as well as from Clean 
Water Action supporting their efforts, from more than 30 of our 
State senators and legislators who have deep experience in 
working on these issues in the State of Maryland, a letter from 
Union Craft Brewing Company, Heavy Seas Brewing Company, and 
the small bed and biscuit--Hereford Bed & Biscuit in Parkton, 
Maryland. And I would offer those for the record.
    Mr. Gibbs. Without objection, so ordered.
    [The information is on pages 414-440.]
    Ms. Edwards. Thank you.
    And, again, thanks to the witnesses.
    Because I have heard from you numerous times. And, to me, 
it seems fairly, you know, clear. And I am no expert. But I 
think, like most Americans, I want to just get up, turn on the 
water, know that I can drink it, wash with it, and that it is 
clean, my children aren't going to get sick, my immune system 
won't be jeopardized. And we depend on the Government to do 
that. We depend on the EPA and on the Army Corps.
    And so, with the two Supreme Court decisions and the 
guidance documents that were issued in 2003 and 2008, it is my 
understanding that the regulated community, conservation, and 
environmental organizations, several States, concede that the 
current process that has been in place--and, really, you know, 
for the better part of a decade, that kind of uncertainty that 
has been in place is confusing, it is inconsistent, it is 
costly, and it has provided little environmental benefit. And 
from what I have heard, entities really just want certainty, 
and I think that is what I have heard from the witnesses today.
    The two agencies released in March 2014 a proposed rule 
that would clarify the jurisdiction of the Clean Water Act and 
requested certainty. And so, to me, quite simply, it is a 
proposed rule. It is not a final rule. There is a lot that has 
gone into the process. You have already explained that there 
have been a couple of extensions to allow for additional 
comments and consideration. I can't actually think of a more 
public process than has been engaged in this rulemaking.
    And from what I further understand about the rulemaking 
process, agencies take the comments that are received like you 
are doing. You have hearings and consultations with a broad 
swath of interested parties and then you make modifications to 
the proposed rule before you issue the final rule.
    That is where we are right now. And I think we have heard 
from some of my colleagues that the gross exaggerations that 
have been made about the scope of the rule are, in fact, that. 
They are exaggerations. And so I am glad that you are here 
again today to clarify for us what is in consideration and what 
is not.
    I just want to point out that, in Maryland, 59 percent of 
our streams have no other streams flowing into them, 19 percent 
don't flow year-round. And under the varying interpretations of 
the recent Supreme Court decisions, these smaller bodies are 
among those for which the extent of Clean Water Act protections 
has been questioned. And so the EPA says that, basically, 
nearly 4 million Marylanders--and that is about 70 percent of 
our population--receive some of our drinking water from areas 
that contain these smaller streams.
    And, as I said, 70 percent of Marylanders get our drinking 
water from sources that rely on headwater or seasonal streams. 
We, in fact, in our State are welcoming this clarity.
    And so, in view of that fact, I am proud that Maryland 
joined over 30 States--I am a little confused--30, 34. Like we 
have 64 States. But 30 States have joined in asking the Supreme 
Court to uphold broad legal protection through small 
tributaries and their adjacent wetlands.
    And so I share with Senator Whitehouse that this is not a 
perfect scenario, but we shouldn't let the perfect be the enemy 
of the good.
    And I wonder if you could just comment for me in the brief 
time that I have left the agricultural exemptions that you have 
told this committee about before and the fast-tracking process 
that the Army Corps will put into place to make sure that 
discharges associated with agricultural activities will not 
have the kind of impact that some of our farmers perceive.
    Ms. Darcy. I will take that one, Congresswoman.
    The agricultural exemptions that currently exist in the 
Clean Water Act are still there. That is unchanged by this 
rule. They include agriculture stormwater discharges, the 
return flows that the Administrator talked about earlier, 
construction and maintenance of farm and stock ponds, 
maintenance of drainage ditches, upland soil and water 
conservation policies. These are all in place, and they 
continue to be in place as a result of this rule.
    Mr. Gibbs. Your time is expired.
    Senator Fischer, you have 5 minutes.
    Senator Fischer. Thank you very much.
    Nice to see you again, Administrator.
    Ms. McCarthy. You, too, Senator.
    Senator Fischer. I have here many, many comments that were 
filed by the League of Nebraska Municipalities, and I want to 
make sure that their concerns are heard and not ignored, as I 
believe you rushed to issue a final rule by April, assuming a 
60-day OMB review period instead of the usual 90 days. And it 
would give you then only 3 months to review and address over 
the 1 million comments you have received.
    These comments provide a good overview of concerns about 
your proposal because Nebraska municipalities not only run 
wastewater, stormwater, and flood control systems, they also 
provide drinking water, electricity, and natural gas to their 
citizens.
    So I ask unanimous consent that these comments be placed in 
the record.
    Mr. Gibbs. Without objection, so ordered.
    [The information is on pages 441-455.]
    Senator Fischer. Thank you.
    Administrator, I also have a copy for you here, if you 
would take that, and I hope that you will take the time to read 
through it.
    My communities are deeply concerned about the proposal. You 
know that. The reason they are so concerned is that your 
proposed rule could regulate all waters in the State of 
Nebraska.
    First of all, you are proposing to regulate all water that 
has a shallow subsurface hydrologic connection or subsurface 
hydrology. As you can see from a chart that I have, in large 
areas of Nebraska, the groundwater table is only 50 feet below 
the surface. All water located in these areas could be 
automatically regulated under this proposal.
    Second, you are proposing to regulate other water on a 
case-by-case basis that includes consideration of connections 
through deeper groundwater systems, and you are proposing to 
look at all waters in the aggregate in a watershed or in an 
ecoregion. Most of Nebraska falls in one of the ecoregions that 
you have identified. Therefore, all water in these ecoregions 
would be reviewed collectively to determine that they have 
connections through groundwater. That makes them all waters of 
the United States.
    I want you to understand that municipalities and landowners 
in Nebraska cannot engage in development activities or 
construct and maintain wastewater, stormwater, and flood 
control systems without creating some form of open water that 
would be regulated under this proposal. I don't believe that is 
a myth. These are real impacts of the proposal that you are 
putting forward.
    So I would ask: Will you commit that your final rule will 
not assert Federal control over water based on groundwater 
connections?
    Ms. McCarthy. Well, first of all, Senator, thank you.
    We actually are working very hard to identify and resolve 
the issues that you have raised. I would agree with you that 
there are many legitimate issues that have been raised, and I 
will also agree that we are not rushing to finalize the rule 
until we resolve these issues to our satisfaction and so that 
we can explain to the stakeholders how we listened to them. So 
I would appreciate walking home with the comments that you have 
provided.
    I am going to fall short of answering your specific 
question until the dialogue with the stakeholders is concluded 
and we see how we--we understand that groundwater, while it is 
not regulated under the Clean Water Act, there are connections 
that may be important for the quality of downstream waters. 
But, clearly, folks are asking for a lot more clarity on this 
and this is one area where we need to work hard together.
    Senator Fischer. Also, I would say to you that many of my 
stakeholders feel that your staff has refused to provide them 
with some clear answers during outreach sessions and they are 
concerned about the intended scope of the proposed rule.
    Cities and counties have repeatedly asked your staff if 
they intend to include the municipal storm sewer systems in the 
definition of ``waters of the United States,'' and, instead of 
clearly disavowing any such intent, your staff seems to be very 
evasive and will only say, ``If you don't need a permit today, 
you don't need one under the proposed rule.'' I would hope that 
is correct, but we need clarification on that.
    I think that answer is unacceptable. It suggests to me that 
some storm sewers are going to be considered ``waters of the 
United States.'' The storm sewers and other water management 
ditches and canals are not waters of the U.S., but I think your 
proposal is broad enough that it would bring them under Federal 
control. And we definitely would have issues with that. We have 
many issues that come up with industrial facilities, with 
farmers, wastewater treatment facilities, drinking water 
utilities, because they all manage water in manmade 
conveyances.
    Mr. Gibbs. The gentlelady's time is expired.
    Senator Fischer. I see my time is up. Thank you.
    Mr. Gibbs. Do you want to respond quickly?
    Ms. McCarthy. Only that, Senator, I would really appreciate 
it if our staffs could work together. And if there is clarity 
that we can provide and additional outreach, I would be more 
than happy to do that.
    Senator Fischer. I appreciate your openness on that, 
Administrator, and, hopefully, we can get answers to my 
stakeholders.
    Ms. McCarthy. Thank you.
    Senator Fischer. Thank you.
    Mr. Gibbs. Mr. Woodall, you are recognized for 5 minutes.
    Mr. Woodall. Thank you, Mr. Chairman.
    I appreciate you all being here, particularly for those of 
us at the bottom end of the dais.
    I wanted to follow up on Senator Fischer's question, 
though. I have been a staffer for a decade or so, and I 
appreciate that you don't always--if your name is on the door, 
you don't always want the staff disavowing things, because that 
is the job for the men and women whose names are on the door.
    But if it is clear that stormwater clearly is not within 
Federal jurisdiction, why can't those with their names on the 
door go ahead and disavow that today and let us take that off 
the worry list for folks back home?
    Ms. McCarthy. Well, I would like to take anything off the 
worry list that I can. So we will do whatever outreach we need 
to do to be as clear as we possibly can. Staff are obviously 
conservative in giving opinions during the middle of a 
rulemaking process, but we need to be a little less so so that 
we can be frank and build confidence in one another.
    Mr. Woodall. But it would be easy to--I think about the 
Assistant Secretary. We have had conversations about water 
treatment facilities in our district. They are built above and 
beyond. They are just spectacular, a great expense to my 
constituents, because we are invested in the environment. In 
fact, I would take issue with anyone who says we are not doing 
more than our fair share.
    And it would be easy to go ahead and disavow a whole string 
of things that you have no intention of creating, but folks are 
talking about exaggerations and people being worried for 
nothing.
    I would tell you this. Waters of the U.S. is issue number 
one for folks in my district. Water, in general, is issue 
number one. And it seems that we do a disservice, as 
legislators and regulators, if we have an opportunity to say, 
``Let's focus on what really is important, what really is a 
stakeholder contention, and let's move these red herrings off 
the table.''
    Why should we be concerned with that?
    Ms. McCarthy. We had an earlier question about these 
facilities, these MS4s and others, and I was, I think, very 
clear that there will be exclusions articulated for those in 
the final rule.
    I think what we see has happened here is our interest in 
expanding exclusions wasn't our intent to cover everything. And 
if we didn't articulate everything, people felt that we were 
specifically narrowing those exclusions. We will do a job at 
articulating what is in and what is out better than we 
certainly did it before.
    And you will have my assurance that these things that have 
never been in before, that we have never talked about, will not 
be in the final rule. We will clarify these so that people will 
see in writing what they have been asking us about.
    Mr. Woodall. I think about your goals of clarity, cost 
reduction. These are all goals that every stakeholder in my 
district shares and, I would argue, stakeholders across the 
Nation share.
    And, yet, amongst your million comments will be letters 
from our attorney general taking issue with the proposal, 
citing the very same case law that you cite to promulgate the 
proposal. Our attorney general would cite to negate it, our 
Chamber of Commerce, our Council for Quality Growth, our ag 
commissioner, on and on and on.
    I am very proud of Georgia's record of environmental 
stewardship, particularly water stewardship. I am one of those 
anglers who spends $50 billion a year in U.S. waters.
    Can you tell me something that, in your collective 
experience, that we have failed on in Georgia that--again, 
sharing the desire that everyone has for clean water, I feel 
like we are meeting that standard locally today. No one is 
asking for Federal help today.
    Can you talk to me about some failures that we have had in 
my State that this rulemaking would seek to train us up.
    Ms. McCarthy. I don't think--and, Jo-Ellen, I am sorry. I 
am going to be very quick.
    I don't think that this should be looked at as an 
indication of failure on the part of any State. This is trying 
to respond to States telling the Federal Government that, ``It 
is time that you were clearer so that we can do our business, 
which is to co-regulate with you in a way that is effective and 
efficient.''
    They are asking us to be clearer. So I would not want folks 
to go thinking that this is a reflection of any failure on the 
part of any State.
    Mr. Woodall. And so I am looking at a handout from the 
Water Advocacy Coalition that lists 11 States submitting 
comments to say, ``We oppose the rules that are promulgated. We 
need lots of revisions,'' another 22 States that say, ``We 
oppose it. We want it withdrawn altogether.''
    You are saying that this process began as a response to 
these State stakeholders. But given that the majority of those 
folks have some degree of--or a substantial degree of concern 
today, would we still say that the rulemaking has addressed 
those concerns that it set out to address or have we gone far 
afield?
    Ms. McCarthy. I think we still have work to do before the 
final rule, and the final rule will respect that work getting 
done. I think that it is incredibly important that we retain 
the partnership we have with States working collaboratively 
together.
    We went through this process specifically to tee up a range 
of ideas that the States and stakeholders could respond to in 
the rulemaking. That is what you see has happened.
    This is not an easy rule, and I won't suggest it is. But we 
will get this done in a way that we are supposed to, and we 
will listen and respond to the comments effectively.
    Mr. Woodall. I appreciate that recognition of Georgia's 
success.
    And, Mr. Chairman, I yield back.
    Mr. Gibbs. Administrator McCarthy, I have a quick 
clarification.
    You told Senator Fischer you will not rush to finalize the 
rule, but your Web site, EPA's Web site, says you plan to issue 
a final rule in April.
    Is that still the plan?
    Ms. McCarthy. Well, certainly our goal is to issue it this 
spring. I am not going to give you a specific timeline more 
than that because I want to make sure that we are respectful of 
the full range of comments that came in and we have----
    Mr. Gibbs. I just wanted a clarification for what your Web 
site says. OK. Thank you.
    Ms. Titus, you are recognized for 5 minutes.
    Ms. Titus. Thank you.
    And thank you, Administrator, for being here.
    I represent the First Congressional District of Nevada. 
That is basically Las Vegas. We live in the desert. If you have 
ever been there, you know our biggest body of water is the 
fountains in front of the Bellagio. So we are kind of in a 
unique situation.
    Ms. McCarthy. And they are beautiful.
    Ms. Titus. We get about 4 inches of water a year, but we 
also depend on one source primarily. Ninety percent of our 
water comes from the Colorado River. It serves 2 million people 
who live there in the valley and 42 million people who come as 
tourists.
    So protecting that river is very important to us. And so I 
am very supportive of your efforts and generally think what you 
are doing is right on track.
    I have talked to some of the local government agencies, 
however, and they have a bit of a concern about the definition 
of ``ephemeral tributaries.''
    And I would like to enter their letters in the record, if I 
may. One is from the Regional Flood Control District of Clark 
County, and one is from the Las Vegas Valley Watershed Advisory 
Committee, if that is all right.
    Mr. Gibbs. Yes. Without objection, so ordered.
    [The information is on pages 456-461.]
    Ms. Titus. Thank you.
    The Flood Control District is concerned about the 
definition of ``ephemeral washes'' in the desert throughout the 
Southwest because oftentimes they won't carry water for years, 
but, when they do, it may be a flash flood. So the water level 
is very high. We would like to figure out how they will fit 
into the scheme of things.
    And the second concern from the Las Vegas Watershed 
Advisory also is about that same definition, and they would 
like to know if some facilities that they construct for water 
projects will actually be included, things like ditches, 
canals, ponds, manmade features used in the operation of 
wastewater treatment and supply systems.
    So could you address those two things or give me something 
that I can take back to them----
    Ms. McCarthy. Sure.
    Ms. Titus [continuing]. To assure them that these things 
are being considered in this process.
    Ms. McCarthy. Yes. Let me answer two.
    One is let us know who you would like us to talk to, 
because we will be very clear, as we answered before, about the 
MS4 issues, which is one of your issues. All of the 
construction that is done to protect stormwater from urban 
areas and others is extremely important for us to recognize and 
continue to incent that and not to confuse that issue.
    Let me mention the ephemeral washes, because the 
significant issue for us is: When does an ephemeral flow? When 
is it sufficient duration and intensity and frequency that it 
has an opportunity to impact the quality of the water that is 
downstream? That is the question.
    So what we are doing in this rule is trying to define the 
very water features that you can articulate in the field that 
reflect a water flow in those washes that indicate that it is 
of sufficient flow, duration, and frequency that it would have 
created a bed, a bank, and a high water--well, I am sorry--
ordinary high-water mark--thank you very much--the ``O'' always 
eludes me--which are actually features that reflect that it 
flows sufficiently and frequently enough that it could 
significantly impact the biological and chemical and physical 
integrity of the waters that it flows into.
    So we are doing our best to define that in a way that you 
can see it and you can know what is in and what is out and 
would certainly find it an opportunity to talk to anybody about 
why we are making those connections and why we think it is 
respectful of the science and why it will also minimize 
confusion in a way that will be helpful to everybody.
    Ms. Titus. I appreciate that.
    If I can get them in touch with your office, then, to kind 
of reassure them along----
    Ms. McCarthy. We are happy to reach out to your office as 
well.
    Ms. Titus. Thank you so much.
    I yield back.
    Mr. Gibbs. Mr. Hardy, you are recognized for 5 minutes.
    Mr. Hardy. Thank you, Mr. Chairman.
    I, too, am from Nevada. I have the north portion of the Las 
Vegas area and, also, further north to the rural counties. We 
come from an area, like the Congresswoman said, where I have 7-
year-old frogs that don't know how to swim. So it is a dry 
area.
    So, with that, I want to go back to a comment that was made 
earlier about the $162 million to $280 million number. Can you 
elaborate on this analysis? And did you take into account the 
sheer mitigating factors? Were there second- or third-layer 
effects of the supply chain included in this analysis?
    Let me go ahead and put it into perspective. As a former 
businessperson, owner, trying to expand my company, I was not 
only concerned with the immediate internal facts, like my 
products, my employees, but I also had to look at the long-term 
external environment and the legal and socioeconomic and 
political factors.
    Have you looked into those to see what the costs of those 
would be with this mitigation? You say it significantly 
outweighs the benefit.
    Ms. McCarthy. To the extent that we--we followed the Office 
of Management and Budget guidelines and EPA's guidelines, and 
we have done an economic analysis for this rule that is 
consistent with what we believe our obligation is and to the 
extent that science allows us to do this effectively.
    There are benefits that we cannot capture in this cost that 
we have estimated to the best of our ability. So we think we 
have done a very thorough economic analysis. But times change.
    We are going to relook at that economic analysis and, when 
we issue the final rule, we will do the best we can to talk 
about all of those, the benefits and costs associated with this 
rule not just short term, but long term as well.
    Mr. Hardy. OK. I would also like to read a comment from 
Nevada's Department of Conservation and Natural Resources and 
the Nevada--Colorado Commission of Water. I would like to hear 
your reaction to it.
    ``Nevada has very strong laws and regulations to preserve 
and protect the waters of the State, which are defined as 
waters situated wholly, partly within or bordering upon the 
State. The State has the authority to protect all waters, 
whether or not they are subject to the CWA jurisdiction, and 
has carried out authority effectively and efficiently for 
decades.''
    I would like to hear your thoughts on this statement and 
why we continue to need your authority within our State when we 
are doing a great job.
    Ms. McCarthy. Well, the States and EPA work with one 
another in partnership to protect waters. Again, I do not want 
this rule to look like it is an indication of a lack of 
diligence on the part of Nevada or any State. Frankly, it is 
just making sure that the Federal Government does its job to be 
as clear as we can.
    The States have asked for this because they want to 
eliminate challenges to some of their decisions and they want 
clarity on what they should be paying attention to. We are just 
trying to be the best partners we can with the States.
    Mr. Hardy. And I think that is where this comes into 
effect. You know, the Federal Government has a tendency to one-
size-fits-all. I don't think one size for Nevada fits anybody 
else. It doesn't fit the West, nor does it fit any State in the 
United States.
    We have 50 significant different States and different 
environments. So this one-size-fits-all--we have to be very 
open on how we are going to deal with this.
    Another of the comments that was made here, if you wouldn't 
mind reading it: ``The EPA has attempted to collaborate with 
the States and other affected parties after the fact and 
address issues of concern that have already been proposed.''
    That is a concern to me when you say you--you have 
specifically said yourself that you have worked with the 
States, but they are telling us it is after the fact you come 
to them with this--with your proposal.
    Ms. McCarthy. These are issues that EPA and the States have 
been working on, literally, for decades. But no matter how you 
perceive the pre-proposal work that we did, there is no 
question, I don't think, that the docket will reflect that we 
have done significant outreach with the States on this. We have 
reached out to them through our regions and through 
headquarters. We are going to continue that discussion.
    Mr. Hardy. One final question before my time runs out.
    ``The CWA has not intended to apply the management of 
groundwater. While we applaud the proposed rule exclusion of 
groundwater, the issue becomes blurred when the shallow 
subsurface hydraulic connections are used to establish 
jurisdiction between surface waters. This opens the door to 
interpretation and the argument of extension of the CWA 
jurisdiction to groundwater resources.''
    Any comment on that?
    Ms. McCarthy. That was the exact same issue that Senator 
Fischer raised, and we are happy to continue that discussion.
    Mr. Hardy. Thank you.
    I yield back.
    Mr. Gibbs. Mr. Huffman, you are recognized for 5 minutes.
    Mr. Huffman. Thank you, Mr. Chairman.
    And I want to thank Administrator McCarthy and Assistant 
Secretary Darcy for your patience and testimony here today and, 
really, for your good work over the course of several years.
    It is remarkable how much public process you have brought 
to this issue, how much science, and how many iterations of 
peer review and analysis have gone into this, the fact that we 
have had drafts and revisions and a listening tour that really 
is more extensive than anything I have seen in my short time 
here in Congress.
    And I think the real story of what you have done here is a 
story of the way a serious rulemaking ought to work. You have, 
frankly, just done good work, and I want to commend you for 
that. And you have maintained your patience in the face of, I 
think, some pretty outlandish accusations about this proposed 
rulemaking.
    In fact, I think there is--if there is any story from 
today's hearing, I think it has to be how weak and unfounded 
and just plain wrong some of the claims about this rulemaking 
are.
    We have seen a map that was never intended to depict Clean 
Water Act jurisdiction or even jurisdictional expansion, but it 
was represented that way. And then, when you clarified that the 
map appeared to be prepared for fisheries' purposes or for 
completely unrelated purposes, some of my colleagues across the 
aisle said they were very troubled by your answer. It is really 
rather remarkable what passes for congressional oversight 
sometimes.
    We saw a photo of something that seemed to be represented 
as a bit of a smoking gun, an erosion feature in a farm field. 
And, yet, when we had a chance to listen to you, we found that 
that is actually something that was found to be jurisdictional 
under the current rules, not under your proposed rulemaking, 
sort of illustrating the problem, the problem we have with the 
status quo that comes to us not through the exhaustive science 
and public process that you have brought to this issue, but it 
comes to us from policy guidance that was handed down without 
any process, without any science, without any advanced notice 
or comment from the Bush administration in response to some 
Supreme Court decisions.
    And the guidance that we are left with draws from two 
different Supreme Court Justices' opinions who had two 
different ideas about how one ought to find jurisdiction under 
this matter and leaves with us a case-by-case analysis that is 
cumbersome, that has been litigation prone, that frankly leaves 
us with a status quo that nobody should be very satisfied 
about.
    So I am glad you have taken on this tough issue at the 
request, we need to always remember, of stakeholders, of the 
Supreme Court, of so many folks that have asked you to do this. 
And, again, I think you have done very good work.
    I represent a lot of farmers and ranchers, a lot of 
forestry in the north coast of California, and I do continue to 
hear some of these concerns that you have very clearly, I 
think, spoken to on many, many occasions.
    But I just want to ask you one more time: Are there any 
farming, ranching, or forestry discharge activities that are 
exempt from permitting today that would lose that exempt status 
because of anything you are doing in this rulemaking?
    Ms. Darcy. No, Congressman.
    Mr. Huffman. All right. And I know we continue to hear 
concerns about dry washes and even truck tire ruts and things 
that you have clarified many, many times. But I want to ask you 
where you are going with that process of clarification.
    Because, clearly, no matter how many times you say it, it 
doesn't appear to satisfy the folks who keep trotting out these 
examples. And I think I understand that you are going to try to 
address this through defining the term ``bed and bank.''
    We saw a picture, I think, from Senator Capito that was 
represented as a dry wash. But, to me, it looked like it might 
have had a bed and bank. I don't know. But I think we have 
heard that you may be in the process of providing some real 
definition of this ``bed and bank'' standard, science-based 
definition.
    Can you just tell us what we might expect in the final rule 
on that point?
    Ms. Darcy. Because of the public comment on that issue in 
particular--because that is part of the definition of 
``tributary,'' which is being defined for the first time ever 
in the Clean Water Act and in regulation; and because it was 
the first time the definition was out there and the definition 
is that it has to have a bed and bank and ordinary high-water 
mark, that is getting a lot of comment.
    Part of the comment is, ``So further define that.'' I 
think, in response to public comments, that is probably a 
challenge for us to address in the final rule.
    Mr. Huffman. So you think we can expect some specific 
definition of this ``bed and bank'' standard?
    Ms. Darcy. I think we need to consider it, especially 
because it has raised concerns. And, again, we are trying to 
get certainty and, if we can get better certainty, that is the 
way to do it.
    Mr. Huffman. All right. Thank you.
    Mr. Gibbs. Senator Carper, you are recognized for 5 
minutes.
    Senator Carper. Thanks, Mr. Chairman.
    It is great to be here with all of you at FedEx Stadium. 
This is a big room. And it is nice to be with my--some of my 
former House colleagues with whom I served a number of years 
ago.
    It is nice to see you from afar, from all the way up here 
to down there. To our Administrator and to our Assistant 
Secretary, thank you for coming today and for hanging in here 
for all of this time. I think you are just the first panel, 
which has been a pretty long morning, I am sure, for you.
    I have just come from a hearing on Homeland Security and 
Governmental Affairs Committee and we focused on the 
President's action with respect to immigration and providing 
some protections, if you will, for those that are here in 
certain status as opposed to others that are not allowed to 
stay any longer.
    And one of the messages that came out of that hearing was 
the reason why we are having that hearing in the Homeland 
Security and Governmental Affairs Committee is because the 
Congress hadn't done its job, that we didn't pass comprehensive 
immigration reform, and if we had, the issues that we were 
discussing would have been moot.
    And I think there is a parallel here. And I think the 
parallel is, if we had done our job, if we had actually passed 
legislation to provide for the clarification that was needed 
following some Supreme Court intervention, we wouldn't be 
holding this hearing. Is that correct?
    Ms. McCarthy. It could have reduced some of the existing 
confusion, that we can and will reduce the regulatory action as 
well.
    Senator Carper. All right. I am really tempted to ask what 
is a question that you wish had been asked you. Let me ask 
that. What is a question you wish had been asked? Out of all of 
the questions fielded today, what do you wish you had been 
asked that never was asked? Anything at all? Did we exhaust 
everything?
    Ms. McCarthy. I actually was going to say: Would you like a 
bathroom break? But I thought that would be too rude at this 
point in time.
    Senator Carper. Well, in that case, I will hurry this up.
    All right. Can both of you name for us two concerns that 
you have heard from stakeholders that you intend on addressing 
in the final rule. Each of you, two. A double shot, if you 
will. Two concerns that you heard from stakeholders that you 
intend on addressing in the final rule.
    Ms. Darcy. The continued lack of clarity, which is what we 
are attempting to do in the rule, was to be more clear and 
definitive about, as Gina has continued to say, what is in and 
what is out. And I think that is what we have to continue to 
look to improve upon in the proposed rule.
    That, as well as how we can better cut down the time that 
permits take. And I think, by providing some more clarity and 
definition, we might be able to get after that as well.
    Senator Carper. All right. Thank you.
    Ms. McCarthy. Let me just add, the definition of 
``tributary'' and how it relates to ephemeral streams is 
extremely important, how that all relates to erosional features 
that are exempt, are excluded, from the Clean Water Act 
jurisdiction. I think people have asked for more clarity on 
significant nexus. I think we need to provide it.
    And the ditch issue, it drives me crazy, as it does 
everybody else. So there is a lot of issues that have been 
raised around ditches, and we need to be very clear about the 
fact that we are not just respecting the current exemptions, 
but we are expanding on those. But we are also defining those 
unique ditches that actually deserve to be protected from 
pollution and destruction through a normal permit process.
    Senator Carper. All right. Good. Thank you for that.
    It is my understanding that attorney generals from, I 
think, a half dozen or more States, including my own State, 
former Delaware Attorney General Beau Biden who just stepped 
down a month or so ago. But I understand that they sent a 
letter to the EPA and the Army Corps--I want to say last 
September--and in their letter they were in support of the 
waters of the U.S. proposal.
    In that letter, the AGs pointed out the need for 
predictability. They spoke to the need to address discharges 
that can happen in one State, but impact States downstream.
    And I just want to say: Is that correct? Just yes or no. Is 
that a fair statement?
    Ms. McCarthy. I believe so.
    Senator Carper. However, I understand the EPA has also 
heard from other States with extreme concerns over the rule. I 
am sure you have heard that today.
    Why do you believe there is such a diversity of views from 
State to State on this issue? Do you believe this rule does 
provide needed predictability? And do you believe that there 
are some changes that you can make in the final rule to address 
some of the concerns we are hearing from these other States?
    You already answered the second question, in part, because 
you told me you actually think some followup needs to happen. 
So why such a disparity? I mean, you have got some States that 
say, ``This is good; let's do this,'' and other States who 
raise all kind of heck about it.
    Ms. McCarthy. I think it points out that there is a 
tremendous amount of lack of clarity and uncertainty today. And 
so part of it is, I think, when we explained what is actually 
jurisdictional today, some people were surprised by that.
    And when we tried to explain exclusions, they didn't 
understand that that list was not exhaustive. So if they didn't 
see themselves in the exclusions, even though it was much 
larger than current exclusions, they thought we were sending a 
signal that they weren't excluded.
    So there was a lot of misinformation and legitimate 
misunderstandings and legitimate need for continued clarity on 
these issues.
    Senator Carper. OK.
    Ms. McCarthy. And we just need to face that and deal with 
it in the final rule effectively.
    Senator Carper. Thank you both so much.
    Thank you, Mr. Chairman.
    Mr. Gibbs. Ms. McCarthy, I have a quick question to follow 
up.
    Ms. McCarthy. Yes.
    Mr. Gibbs. You told us you are resolving all these issues 
before the final rule and you are working with the States and 
stakeholders.
    What specifically is the process for resolving these 
outstanding issues?
    Ms. McCarthy. To continue to look at the comments received, 
to continue to have discussions as appropriate and docketed 
with the stakeholders.
    Mr. Gibbs. Are you having interaction with the States?
    Ms. McCarthy. Absolutely. Yes, we are.
    Mr. Gibbs. OK. Mr. Mica, you are recognized for 5 minutes.
    Mr. Mica. Well, thank you.
    And let me follow up a little bit with the EPA 
Administrator. It is my understanding that 34 States expressed 
concern and asked for withdrawal or significant revision.
    Is that a correct number?
    Ms. McCarthy. It is a--I don't have any number----
    Mr. Mica. Well, that is what I am told, 34. It is not----
    Ms. McCarthy. It may be, but----
    Mr. Mica. It is not just a few States. It is 34.
    Ms. McCarthy. The only thing I would indicate is that the 
same States----
    Mr. Mica. And 34 is about two-thirds of the States. I think 
we still have 50 States. Seems like it is a significant number.
    How long have you been working on this proposed rule?
    Ms. McCarthy. When did we first propose it? Last April in 
2014. But certainly well beyond that.
    Mr. Mica. And you came out with your proposed language and 
consulted different folks, States, which aren't happy.
    When was the exact date you came out with your proposed 
rule?
    Ms. McCarthy. April 21st of 2014.
    Mr. Mica. 2014.
    Ms. McCarthy. But that reflected the guidance document 
that----
    Mr. Mica. And how much longer would you take before you 
finalize the decision on the rule?
    Ms. McCarthy. We have not finalized the decision.
    Mr. Mica. No. I want to know how much longer it would take 
to come out with a final rule. What is your prediction?
    Ms. McCarthy. Well, we are hoping to propose it--we are 
hoping to finalize it this spring. I do not have an exact date.
    Mr. Mica. This spring. OK. But I am trying to get some 
time.
    Ms. McCarthy. Sure.
    Mr. Mica. I did everything I could to block changing the 
law after the Supreme Court decision because there were other 
definitions. I found in that discussion that one of the things 
that happens--and I heard earlier testimony from the Corps of 
Engineers that there is some significant impacts.
    In fact, you testified earlier, didn't you, Corps 
representative, that there will be additional costs, additional 
services required of the Corps, to take on this new 
responsibility?
    Ms. Darcy. There will be some additional implementation 
costs if the rule is finalized. Yes.
    Mr. Mica. OK. So there is additional cost.
    One of the things that concerns me--maybe the big 
corporations can comply with this. First of all, having been in 
business, when you change this rule, you are going to create 
legal havoc because you are changing years and years of law and 
definitions.
    And there is--you talk about clarity. Well, when you adopt 
a new rule with new language, it creates uncertainty. It 
creates lawsuits. It will create havoc for many businesspeople. 
And maybe the big guys can handle this. The small guys can't 
handle it.
    What concerns me, too, the information we have is the Small 
Business Administration's Office of Advocacy recently concluded 
that EPA and the Corps have improperly certified the proposed 
rule under the Regulatory Flexibility Act because it would have 
direct and significant effects on small business. This isn't 
something I am saying. This is what they are saying.
    So, again, the small guy is going to get screwed--pardon--
that is a highly technical term, but--with whatever you do 
because it will be new. It will be subject to suit. It will be 
subject to interpretation. It will be subject to new regulation 
which you are imposing that has a cost.
    So the ones that were--you know, what is the biggest job 
creator in the United States? Do you two know? Where do we get 
the most jobs from? Do you know?
    Ma'am?
    Ms. McCarthy. Small businesses is what I understand.
    Mr. Mica. Small business.
    And according to, again, their advocacy group, they don't 
feel consulted. They don't even feel that you complied with the 
requirements to consult them.
    So any change, I think, is going to raise havoc and some 
costs documented here, uncertainty. Possibly there are things 
that we need to do for improvement. And I think you can do many 
of those things for water quality in this country without 
changing this definition.
    Again, if you implement the rule--if you adopt the rule 
this spring, when would it be implemented?
    Ms. McCarthy. It would be effective on publication in the 
Federal Register.
    Mr. Mica. So everyone would have to comply with that. That 
is kind of handy-dandy because that is the rule. You create the 
chaos, the uncertainty, the havoc.
    We could pass a bill, and I think there is enough support 
to pass a bill in the House and Senate to undo your rule. More 
than likely, that will take time. We have seen the slow roll on 
Keystone.
    Did you want to comment or----
    Ms. McCarthy. I just wanted to--I neglected to indicate 
that it is actually 60 days beyond that date, which does allow 
Congress to take a look at it.
    Mr. Mica. OK. That is probably even worse.
    But, in any event, what that does is give the President a 
bill that will rescind what you are doing. I predict that will 
happen. And then the President would veto it, and it will be 
much more difficult for us to override that veto.
    That is the scenario I see, Mr. Chairman, and it is not a 
pretty one for small business or anyone who is concerned with 
Government regulations or its impact.
    Mr. Gibbs. The gentleman's time has expired.
    Just for a point of information, they will be calling votes 
here in the next 15, 20 minutes, and we are monitoring that. So 
we will break for a recess when it is the appropriate time so 
nobody misses votes.
    Mr. Garret Graves, you are recognized for 5 minutes.
    Mr. Graves of Louisiana. Thank you, Mr. Chairman.
    Thank you very much for being here today. Good to see you. 
And I also appreciate your perseverance through this hearing. I 
know you have been sitting there a long time, so thank you.
    I am from south Louisiana and have very strong concerns 
about the approach that you are taking in the rule and the 
regulation.
    I think we all know, if you look back at the statute, the 
Clean Water Act, you have the reference to ``navigable 
waters.'' And you have seen the Supreme Court come in and 
repeatedly narrow or reject the rules that have been 
promulgated in an effort to regulate wetlands in particular.
    I am concerned that we are actually headed down the same 
course right now with this proposed regulation, that we are 
going to see a perhaps third rejection and narrowing of the 
regulations as it pertains to the Clean Water Act. And I think 
that probably what is happening is that the agencies are 
writing a rule in an effort to try to recapture a similar scope 
and just taking a different direction, as happened after 
SWANCC, as I recall.
    In particular, you know, I want to focus on the word 
``navigable.'' That word, you know, it seems that we may have a 
disconnect in the statute versus what you often referred to was 
the science. And if that disconnect is there, it seems like it 
is Congress' job to actually modify the statute if that is 
something that Congress and the agencies believe need to be 
done. But I am concerned that we are stretching these 
regulations in order to create the same footprint--in fact, 
perhaps a growing footprint.
    An example of that is your own cost analysis that you have 
done that has been, I guess, rejected or some concerns have 
been expressed by small business, among others, showing that 
you actually have a higher regulatory cost. I don't understand 
how you have a higher regulatory cost if you have more 
certainty, greater certainty, and if you do not have an 
expanded footprint of jurisdiction here. That seems to be 
inconsistent, and I am very concerned about that.
    Secondly, when you actually go through and read the 
regulation, you have terms like ``case-specific basis,'' 
``significant nexus'' that I note was part of the Kennedy 
statement, not part of the plurality opinion. You have comments 
like ``waters with a shallow subsurface hydrologic connection 
or confined surface hydrologic connection to such a 
jurisdictional water.''
    This is Louisiana. The whole thing is water. You could take 
some of these terms that you have in here, ``tributary,'' 
``ephemerals,'' you could apply--I am going to guess that, if 
you look at this, you could probably give me 90 percent of the 
undeveloped property in south Louisiana and I could figure out 
a way to apply your proposed rule to south Louisiana. 
Nationwide permits don't apply down there. We have much greater 
compliance challenges.
    This is your own--Assistant Secretary Darcy, I am sure you 
recognize this one. This is your picture of the watershed.
    And, Mr. Chairman, I want to ask for--hang on, I am getting 
ready to ask unanimous consent to get double pay for holding my 
own placard. But--thank you. I am sorry.
    No, but this is your own picture of the watershed. We have 
everywhere from Montana to New York coming down and draining 
through south Louisiana. That gives you an idea of why this 
first map looked like it did.
    If you look at the definitions that you have here and you 
say things like--you talk about tributaries ``even if they lack 
a bed and banks or ordinary high-water mark,'' and it says, 
``if they contribute flow.'' Well, again, I think that if you 
wanted to--and, Administrator McCarthy, I am not saying that 
you are going to be egregious or do bad things, but if you 
wanted to, I think that you could absolutely take some of these 
terms and stretch them to apply to virtually anything here, 
which doesn't provide certainty or clarity, especially when you 
combine it with some of the other terms that are used.
    You also have a term in there that was interesting that 
pertained to--it said something about areas that were 
established through sediment deposition. Well, over on the 
left, that is Louisiana 60 million years ago, and, as you can 
see, it doesn't exist, because the entire State was created 
through a deltaic plain through the Mississippi River system.
    Again, not saying you are trying to be egregious or 
regulate my house, but, potentially, if someone wanted to be 
egregious, I am concerned that could be the case.
    Lastly--and I think this is one of the bigger ones. This is 
south Louisiana. And I want to be clear, Administrator--and 
Assistant Secretary Darcy and I have known each other for a 
while, but I am not a knuckle-dragger. I am not a guy who is 
sitting here saying, let's pave all the wetlands. I believe 
that in my previous life I have probably restored thousands of 
acres of wetlands and probably, in the last 6 years, more than 
your two agencies combined, uncompelled, not for mitigation 
purposes, because it was my job. And so I am a big believer, 
defender of wetlands.
    But we have lost 1,900 square miles of wetlands in south 
Louisiana. The big concern that I have is that the majority of 
this loss is attributable to channelization of the Mississippi 
and Atchafalaya Rivers. That was an action of the U.S. Army 
Corps of Engineers.
    This is the greatest historic, current, and prospective 
rate of jurisdictional wetlands loss in this Nation. And the 
agency that is now being charged with the actual administration 
of these regs, these potential regs, is the greatest cause of 
wetlands loss in the United States.
    The hypocrisy there and the lack of credibility is, I 
think, one of the greatest concerns. Because the Federal 
Government, the Corps of Engineers has not come in and restored 
these wetlands. They have made our communities more vulnerable, 
and it is a great concern on the part of the residents of south 
Louisiana.
    Thank you.
    Mr. Gibbs. The gentleman's time has expired.
    Mr. Perry, you are recognized for 5 minutes.
    Mr. Perry. Thank you, Mr. Chairman.
    Over here. Ladies, thank you very much for your patience. I 
know it's been a long day. And I think that is maybe a 
testimonial to how important this subject is to everybody and 
every State and every Representative in every State. We really 
can't help ourselves.
    And, with all due respect, I think that--I come from 
Pennsylvania--when you say that the Agency has worked hand-in-
hand, my experience as a civilian, as a legislator in 
Pennsylvania is that we have felt put upon by the Agency and in 
a very heavy-handed way that has been punitive and that has 
been uneven in its meting out of penalties and of solution sets 
that we have been forced to abide by.
    And so, because of that, we have, I think, a reasonable 
trust issue. And because of the scope of this--and when the 
Agency characterized ``navigable'' in the same context as 
``subsurface connections,'' you know--I said to a lady at a 
hearing in Altoona on this subject, I said, so you are telling 
me that the water that flows through the rock strata and the 
limestone of Pennsylvania is to be considered navigable, and it 
is navigable? And she said, yes, it is. I said, well, I am 
waiting for the submarine that is drilling through the rock and 
doing that, because I haven't seen one yet, but maybe DARPA has 
one. And so we are skeptical.
    But, with that, I want to give you a couple questions here.
    You know, we have a clean streams law that gives our DEP 
jurisdiction over all the Commonwealth's waters. And, under 
this rule, there will be overlap in that jurisdiction, with 
this clarification, as you call it. And, of course, there is 
going to be confusion and costs with the additional layer, what 
we consider an additional layer of regulatory authority.
    Under the proposed rule, will Pennsylvania now only have 
jurisdiction over those waters specifically excluded from 
inclusion in the rule, i.e., or what I would characterize as 
groundwater and ditches that drain uplands only?
    Ms. McCarthy. I am not sure I understood the question 
because you had a couple of negatives in there. Can you just do 
it again?
    Mr. Perry. OK. I will try and be more clear.
    Ms. McCarthy. OK.
    Mr. Perry. Under the proposed rule, will Pennsylvania now 
only have jurisdiction over those waters specifically excluded 
from inclusion in the rule? So everything that is specifically 
excluded would be under Pennsylvania's jurisdiction, i.e., what 
we--and I clarify that by saying groundwater and ditches that 
drain upland only.
    Ms. McCarthy. No, that wasn't the intent. If you are 
excluded from the Clean Water Act in the final rule, then that 
would not be jurisdictional under Federal law.
    Mr. Perry. OK. And that is a concern.
    In addition to that, during and after local development, 
who has jurisdiction over swales, basins, ponds, and ditches 
that will be constructed, altered, filled in, left for 
drainage, and/or questioned? And how will the answer to those 
questions--how will they come about? What is that process? And 
who is paying for that?
    Ms. McCarthy. Nobody is changing who has jurisdiction to 
implement the rule or the relationship between the Federal 
Government and the States to actually address these Federal 
issues. Nothing has changed.
    Mr. Perry. So if during----
    Ms. McCarthy. It----
    Mr. Perry. I am sorry.
    Ms. McCarthy. I am sorry. I just wanted--it is a function 
of the Clean Water Act and how it is implemented today.
    Mr. Perry. So if during construction there is a nexus made 
by what is now not considered navigable but someone considers 
it, some--the Corps comes out--I have done work with the Corps; 
I used to fly with them and do jurisdiction and so on and so 
forth--and comes out and says, this falls within the 
jurisdiction, and the local conservation district says, no, it 
doesn't, what is the answer? What is the redress?
    Because somebody is standing there with a machine that 
costs $500 a day and workers and so on and so forth, and here 
we are. So what is the conclusion to that? What is the process 
for adjudication?
    Ms. Darcy. If a person is seeking a permit or seeking a 
jurisdictional determination of a water in order to go forward 
with a construction project of some kind, the Corps of----
    Mr. Perry. With all due respect, what happens is that 
somebody comes and visits during the project and makes the 
claim at that time, at that location, at that time, and 
everything stops until it is resolved. I am looking for the 
resolution process, if it is being changed, or what you foresee 
based on the scenario that I have portrayed.
    Ms. Darcy. The resolution process that you just portrayed 
would not be changed by this proposed rule. Is that your 
question?
    Mr. Perry. If that is your answer, that is fine. That is 
not what people believe, but I will accept your answer.
    And, finally--ah, my time has expired. Thank you, Mr. 
Chairman.
    Mr. Gibbs. Mrs. Comstock, you are recognized for 5 minutes.
    Mrs. Comstock. Thank you, Mr. Chairman. I have no 
questions.
    Mr. Gibbs. That speeds it up.
    Mr. Davis, you are recognized for 5 minutes. And I am sure 
you have questions.
    Mr. Davis. Thank you, Mr. Chairman. You are correct.
    I wish I had something like a big portrait to have Mr. 
Graves drag his knuckles over here and hold it for me, but----
    Mr. Gibbs. Well, at least the House pictures got bigger 
than the Senate's as we went on.
    Mr. Davis. We are the House.
    Thank you very much, Assistant Secretary Darcy and 
Administrator McCarthy, for being here today.
    As this hearing is about WOTUS, you have heard a lot about 
the impact or possible impact of the proposed rule on our ag 
community, and I think there is really a trust gap between both 
your agencies and our farmers. And that is why one of the 
things I advocated for in the farm bill was to include 
agriculture to have a seat at the table as part of your EPA 
Science Advisory Board.
    In my view, it has been a slow rollout. I know applications 
are being accepted till March 30th. And as you review the 
candidates, I want to make it very loud and clear that our 
intent in negotiating this bipartisan provision was to have 
voices on this committee that didn't only have scientific 
expertise but also real-life experience with production 
agriculture. So having voices on this committee with the real-
world experience can help bridge this trust gap.
    Can I have your commitment that you will honor our 
congressional intent by ensuring that members of this committee 
will be part of production agriculture?
    Ms. McCarthy. I certainly will do the best and as 
expeditiously as I can to meet what Congress has advised us we 
should do. And I would look forward to the establishment of 
this committee so that early on in every process we have an 
ability to hear what these informed stakeholders have to say.
    Mr. Davis. Well, thank you. As the author of that 
provision, I mean, I am clearly stating for the record what our 
intent is: to make sure that we have not just scientists but 
people involved in production agriculture. So thank you.
    Ms. McCarthy. But before you leave, I want to make sure 
that you know that we did get a request from our ag 
stakeholders to extend the time for nomination by 60 days.
    Mr. Davis. Yes.
    Ms. McCarthy. So I don't want you to think we are being 
inconsistent in----
    Mr. Davis. I am not complaining about the process.
    Ms. McCarthy. OK.
    Mr. Davis. I just want you to know the intent of what the 
result could and should be.
    Secondly, I sent a letter to your agency on January 22nd in 
regards to the Mahomet Aquifer and its proposed designation to 
be considered a sole-source aquifer. That aquifer in central 
Illinois actually serves over 700,000 people. And I would like 
you--I will submit this letter to you and your staff to make 
sure your eyes see this. And I would like to get an update from 
you, even after this hearing, as to when we could expect a 
decision on this very important issue to my constituents.
    Ms. McCarthy. I am happy to look into it. Thank you.
    Mr. Davis. Thank you.
    And, lastly, there has been some concern being raised by 
many of my colleagues, and I hope that this process is taken 
very seriously, about this disconnect that we sometimes feel 
like we see. And not just between the EPA as a whole and the 
Corps as a whole and all of our districts; really, I think 
there is some disconnect between what happens and what you 
think is happening out here in Washington versus what your 
regional offices, your district offices, are actually doing on 
the ground.
    And just one of the last hearings we had with one of your 
deputies, Mr. Perciasepe--forgive me if I have mispronounced 
his name. ``Davis'' is easier.
    Ms. McCarthy. We will call him ``Mr. P.'' It is OK.
    Mr. Davis. ``Mr. P,'' perfect. I haven't gotten any 
feedback from him when I asked him if, in this new provision, 
the clarification for sewage treatment facilities, if it 
includes aboveground individual septic system units. Will they 
be required to get a permit?
    Ms. McCarthy. The clarity is, no, they won't.
    Mr. Davis. OK. Will you please, then, take the extra step 
and call the Region 5 office and let them know that the NPDES 
permit----
    Ms. McCarthy. You tricked me into this.
    Mr. Davis. I tricked him, too. So, obviously, he didn't 
talk with you after that. But if you could----
    Ms. McCarthy. If there is any lack of clarity, I will call.
    Mr. Davis. Well, I have the frequently asked questions for 
the NPDES permit----
    Ms. McCarthy. OK.
    Mr. Davis [continuing]. And it clearly uses the Clean Water 
Act as the justification for asking my homeowners in many rural 
areas that I represent to actually apply through the EPA for 
this national permit just to be able to flush their toilet.
    And where it disconnects with the proposed rule, the 
clarified rule that we have been hearing all morning, is that, 
you know, ditches that are excavated and have less than 
perennial flow are supposed to not be regulated under the Clean 
Water Act. That is where many of these discharges go, like in a 
swale between my home. And gullies and rills and nonwetland 
swales are not to be regulated.
    So you can see the disconnect and the concern that my 
constituents have when we see what is happening out here, what 
we are being told, versus what is actually in action in the 
district. So----
    Ms. McCarthy. Let me look at it and make sure that there 
isn't more to this than meets the eye. And I will certainly get 
back to you as soon as----
    Mr. Davis. I didn't mean to throw Mr. P under the bus with 
you, but I am glad I did.
    Mr. Gibbs. The gentleman's time has expired.
    Mr. Davis. Thank you.
    Mr. Gibbs. We have one more Member to ask questions, and 
then we can finish up with this, and we will come back at 2 
o'clock. Mr. Barletta will have 5 minutes, and then we will 
recess. We will start with the second panel at 2 o'clock.
    Mr. Barletta. Thank you, Mr. Chairman.
    Ms. McCarthy, in my flood-prone district, many of my 
constituents live in the flood plain, and I share the concerns 
of them and the local elected officials about the definition of 
a flood plain.
    Some of our local officials even sent comments. Here I have 
comments sent to the EPA about their concerns that the term 
``flood plain'' is not clearly defined. And I ask unanimous 
consent that the letter from the Commissioners of Columbia 
County be part of the record.
    Mr. Gibbs. Without objection, so ordered.
    [The information is on pages 462-463.]
    Mr. Barletta. Can you define for me right now how this rule 
interprets the term ``flood plain''?
    Ms. McCarthy. Well, first of all, I think the confusion 
arose over the fact that, when we spoke about flood plain, 
people thought we were regulating land use instead of just 
indicating that if you intend to pollute or destroy a wetland 
within a flood plain that we need to have an exchange about how 
to do that appropriately so you won't impact down----
    Mr. Barletta. Is the EPA's definition of a flood plain the 
same definition that FEMA uses to draw----
    Ms. McCarthy. Yes.
    Mr. Barletta [continuing]. Its flood maps----
    Ms. McCarthy. Yes.
    Mr. Barletta [continuing]. And determine the 100-year flood 
plain?
    Ms. McCarthy. Yes.
    Mr. Barletta. Are there maps of your flood plains?
    Ms. McCarthy. That they produce.
    Mr. Barletta. That who produces?
    Ms. Darcy. FEMA.
    Ms. McCarthy. FEMA produces.
    Mr. Barletta. And that would be the same definition that 
you use?
    Ms. McCarthy. Yes.
    Mr. Barletta. You know, in Pennsylvania, agriculture is the 
number-one industry, and I----
    Ms. McCarthy. I certainly didn't want--I want to make it 
very clear, we did not intend that normal farming and ranching 
activities would stop being exempt from 404 permitting. They 
are exempt, and we are not intending to change that.
    Mr. Barletta. OK. I just wanted to know the definition of a 
flood plain by your standards, and they are the same as FEMA.
    Ms. McCarthy. It is. Yes.
    Mr. Barletta. And agriculture is the number-one industry, 
so you can imagine, you know, why the Pennsylvania farmers are 
so worried that, when it rains, that any wet spot within a 
flood plain would be federally regulated. And as I have said 
once before, sometimes a mud puddle is just a mud puddle. And 
they would like to know that, that that is the case, and that 
is not how they feel right now.
    Ms. McCarthy. OK.
    Mr. Barletta. I have one more clarification I need. 
Railroads operate approximately 140,000 miles of right-of-way. 
Maintenance of ditches is critical to safe rail transportation, 
obviously. Identifying rail ditches as ``waters of the United 
States'' would create regulatory hurdles that would make it 
almost impossible for railroads to perform prompt rail ditch 
maintenance due to the extensive permitting delay and expense, 
leading to less safe rail transportation.
    Previously, representatives from EPA have said railroad 
ditches would not be subject to Clean Water Act jurisdiction 
under this rule. Will the final rule make this clear?
    Ms. McCarthy. Senator--Mr. Barletta--sorry--I will get back 
to you.
    I know that we have expanded the definition of ditches that 
would be exempt under the clean water rule to make it clearer. 
We have addressed ditches that basically drain dry land along 
public lands and highways. I am not sure of the conversation 
that has happened with rail ditches, but I certainly can get 
back to you. And if you have heard it, I am hoping there will 
be a comment in the record, and we can take this into 
consideration and make any necessary adjustments.
    Mr. Barletta. Yeah. You would agree that this would cause a 
safety issue, and, obviously, those delays would not be in the 
best interest----
    Ms. McCarthy. We have been really clear in this rule that 
any ditch that is in dry land that doesn't connect to a 
tributary below is not going to have the significant nexus 
required to be jurisdictional under the Clean Water Act.
    So we will see. Instead of a sector-by-sector approach, we 
are hoping to do this in a little more scientific and broad 
way. But we will take a look at that issue and make sure that 
we have addressed it.
    Mr. Barletta. And since I am the last speaker, thank God, I 
think it is clear that, from coast to coast, I could tell you, 
I have been called out to farms, I have been called out to you 
name it, the situation where they have literally shown me--I 
had pictures on my cell phone--literally shown me a ditch that 
is going to be regulated. This is a problem from the east coast 
to the west coast, and I hope we can see that it needs to be 
addressed.
    Ms. McCarthy. It will. Thank you, sir.
    Mr. Barletta. Thank you.
    Thank you, Mr. Chairman.
    Mr. Shuster [presiding]. This concludes our first panel, so 
you will be excused.
    And we will reconvene--we are recessed for now, and we will 
reconvene at 2 o'clock with the second panel.
    [Recess.]
    Mr. Gibbs. OK. The committee will come back to order.
    At this time, I would like to call up the second panel of 
witnesses. It is promptly 2 o'clock, so we are getting started.
    On our second panel, we have the Honorable E. Scott Pruitt, 
the attorney general of the State of Oklahoma; the Honorable 
Adam H. Putnam, Florida commissioner of agriculture, on behalf 
of the National Association of State Departments of 
Agriculture; the Honorable Sallie Clark, District 3 
commissioner for El Paso County, Colorado, on behalf of the 
National Association of Counties; the Honorable Timothy Mauck, 
District 1 commissioner for Clear Creek County, Colorado; and 
Lemuel Srolovic, environmental protection bureau chief for the 
New York State attorney general.
    Hope I got your name right.
    Mr. Srolovic. You did. It is a tough one.
    Mr. Gibbs. OK.
    I ask unanimous consent that all witnesses' full statements 
be included in the record.
    Hearing no objection, so ordered.
    Since your written testimony has been made part of the 
record, please limit your summary to 5 minutes if you can.
    And, Attorney General Pruitt, welcome, and you may proceed.
    Senator Inhofe. Sorry.
    Mr. Gibbs. Go ahead.
    Senator Inhofe. I want to make a brief--it will be a very 
brief introduction. But, you know, a lot of times, you have 
people from your own State come in, and you want to participate 
in it. In this case, this is one who is not just really a great 
attorney general and one who is doing things that other 
attorneys general are not doing, but he also is a best friend.
    So I was delighted, Scott, to have you here and 
participating in sharing your thoughts with us today.

 TESTIMONY OF HON. E. SCOTT PRUITT, ATTORNEY GENERAL, STATE OF 
  OKLAHOMA; HON. ADAM H. PUTNAM, COMMISSIONER OF AGRICULTURE, 
STATE OF FLORIDA, AND ON BEHALF OF THE NATIONAL ASSOCIATION OF 
     STATE DEPARTMENTS OF AGRICULTURE; HON. SALLIE CLARK, 
 COMMISSIONER, DISTRICT 3, EL PASO COUNTY, COLORADO, ON BEHALF 
 OF THE NATIONAL ASSOCIATION OF COUNTIES; HON. TIMOTHY MAUCK, 
  COMMISSIONER, DISTRICT 1, CLEAR CREEK COUNTY, COLORADO; AND 
  LEMUEL M. SROLOVIC, BUREAU CHIEF, ENVIRONMENTAL PROTECTION 
   BUREAU, OFFICE OF NEW YORK STATE ATTORNEY GENERAL ERIC T. 
                          SCHNEIDERMAN

    Mr. Pruitt. Well, you are very kind, Senator Inhofe. Thank 
you for those kind comments.
    Chairmen Inhofe and Shuster, Ranking Members Boxer and 
DeFazio, members of the Senate Committee on Environment and 
Public Works and House Committee on Transportation and 
Infrastructure, thank you for this opportunity to discuss the 
Environmental Protection Agency's proposed rule to redefine 
``waters of the United States'' and the significant negative 
impact such a rule would inflict on States and landowners 
within our borders.
    Respect and protection of private-property rights sets the 
United States apart from other nations and has fueled the 
greatest expansion of economic freedom the world has ever 
known. Indeed, private-property rights are among the 
foundational rights of any functional democracy, not just our 
own.
    President Obama's EPA currently stands poised to strike a 
blow to private-property rights through a proposed rule that 
unlawfully expands EPA's jurisdiction by subjecting land use 
and water management decisions, historically reserved to the 
States, to the heavy regulatory hand of the Federal Government.
    The proposed rule aims to redefine what constitutes a 
navigable water or ``waters of the United States,'' a term that 
has long been understood to include only significant bodies of 
water capable of serving as conduits for interstate commerce. 
The proposed rule redefines those terms to now include 
virtually every body of water in the Nation right down to the 
smallest of streams, farm ponds, and ditches. This is a naked 
power grab by the EPA.
    Now, don't get me wrong. The EPA should have a role in 
solving and contributing to interstate water quality issues and 
answers. But when having a role becomes having regulatory 
primacy at the expense of State authority, the will of this 
body is undermined, and landowners and States end up the 
losers, as they are left to the mercy of Agency power, absent a 
voice, when the system wrongs them. And wrong them it will.
    Simply put, the proposed rule is a classic case of 
overreach and flatly contrary to the will of Congress, who, 
with the passing of the Clean Water Act, decided that it was 
the States who should plan the development and use of local 
land and water resources.
    The EPA has generally been unresponsive to concerns 
expressed by States, local governments, and individual 
citizens, with their primary tactic being a public relations 
campaign designed to sway opinion and rule America. EPA 
Administrator Gina McCarthy has been documented as dismissing 
many concerns wholesale, calling them ludicrous and silly, 
while also asserting that the proposed rule is all about 
protecting waters, quote/unquote, and providing clarification.
    To Administrator McCarthy, who appeared before you today, I 
say, forgive the skepticism of the States, but these 
reassurances are from the same administration that said, if you 
like your health insurance, you can keep your health insurance. 
So, as the old adage says and commends us, trust, but verify. 
And though we would like to trust the EPA's intent, something 
doesn't add up. This rule smells far more like--far more than a 
clarification. Indeed, it reeks of Federal expansion, 
overreach, and interference with local land use decisions.
    Notably, there are several United States Supreme Court 
decisions illustrating that the intended regulatory 
jurisdiction of the EPA has been limited to the navigable 
waters of the United States, with all other waters rightly left 
to the States to regulate.
    At the time that the Clean Water Act was passed, the 
Supreme Court had previously defined ``navigable waters of the 
United States'' as interstate waters that are navigable in fact 
or readily susceptible of being rendered so.
    In recent cases, the Supreme Court has made clear that any 
examination of Federal jurisdiction must first begin with an 
understanding that Congress intended the States to retain 
primacy over the development and use of local land and water 
resources. With the proposed rule, the EPA is ignoring this 
core tenet of the CWA and endeavoring to write itself a 
regulatory blank check.
    On another note, and critically, the proposed rule includes 
a vague catchall category, defeating the EPA's claimed purpose 
of the rule providing transparency, predictability, and 
consistency to the scope of the CWA jurisdiction. Instead, the 
EPA has simply redefined the meaning of ``navigable waters'' in 
an extraordinarily broad way so that any landowner may be 
subject to owners permitting requirements or severe civil 
penalties if violated, even if unknowingly.
    Oklahoma has seen firsthand, Senator, how the Federal 
Government, specifically the EPA, abuses its regulatory power 
in States that have interest in energy, farming, and ranching. 
The States are not and should not be used as a vessel to carry 
out the will of regulators in Washington, who often seem to 
have little regard for how their actions negatively impact the 
economy and private-property rights.
    During the comment period for this rule, Oklahoma filed its 
objections. In fact, my office led a coalition of 16 States to 
file comments about the lawfulness of this rule, or 
unlawfulness of it. Additionally, as the chief law enforcement 
officer of the State of Oklahoma, I can say with confidence 
that, if the EPA continues forward with this rule as proposed, 
the rule will be challenged in court.
    If this rule is issued as proposed, we will all live in a 
regulatory state where farmers must go before the EPA to seek 
permission to build a farm pond to keep their livestock alive, 
where homebuilders must seek EPA approval before beginning 
construction on a housing development that contains a dry creek 
bed, and where energy producers are left waiting for months or 
even years to get permits from the EPA, costing producers tens, 
if not hundreds, of thousands of dollars that inevitably will 
be passed on to consumers.
    Chairmen Inhofe and Shuster, Ranking Members Boxer and 
DeFazio, the EPA's proposed rule is unlawful and should be 
withdrawn. We urge the EPA to meet with State-level officials, 
who can help the Agency understand the careful measures the 
States already have in place to protect and develop the lands 
and waters within their borders. But most of all, we urge the 
EPA to take note of the harm that this rule will do to the 
property rights of citizens across the country and their 
ability to make land use decisions.
    Thank you, Chairman, for the opportunity to speak to you 
today.
    Mr. Gibbs. Thank you.
    Mr. Putnam, you have the floor. Welcome.
    Mr. Putnam. Thank you, Mr. Chairman.
    And I think I liked the old view better than this view, but 
I sincerely hope that the plague which has overtaken these two 
great committees will pass quickly, and our prayers will be 
with the Members who are unable to join us for this.
    But it is a pleasure to be on this panel and to represent 
not only the Florida Department of Agriculture and Consumer 
Services but also the National Association of State Departments 
of Agriculture.
    I come here as a farmer of citrus, a cattleman, a former 
Member of Congress, and an agriculture commissioner and someone 
who has dedicated much of my career to water policy and water 
resource development issues. I am proud of the record that our 
State has in protecting water, including through agricultural 
best management practices, putting 10 million acres of 
agricultural lands in the State under best management 
practices, or 90 percent of our intensively managed 
agricultural lands, and saving 20 billion gallons per year of 
water through those practices.
    The EPA asserts that the purpose of this rule is to clarify 
which waters are and are not subject to the Clean Water Act. 
The EPA claims that the proposed regulations will not 
significantly change what currently is considered ``waters of 
the U.S.'' They also claim that the proposed regulations will 
not substantially affect regulated communities like ours. I 
believe this is yet another attempt by the EPA to regulate 
areas outside their authority and in contradiction to guidance 
given by the courts.
    Counter to the claims by the EPA regarding intent, the 
proposed rule, in fact, will lack clarity, significantly expand 
Federal jurisdiction, impose burdensome requirements on 
agricultural producers, and impede efforts to protect and 
restore the environment.
    The proposed rule creates more ambiguity regarding what 
areas are subject to the requirements of the Clean Water Act 
and will most certainly result in an expansion of jurisdiction. 
Specifically, the proposed rule does not clearly define 
``adjacent,'' ``neighboring,'' ``riparian area,'' and ``flood 
plain.'' In combination, the application of these terms expand 
Federal jurisdiction to include all wetlands or other waters 
similarly situated across a watershed or that share a shallow, 
subsurface hydrologic connection.
    What is more concerning is the intent by the EPA and the 
Corps, as communicated in their narrative accompanying the 
rule, to evaluate application of ``flood plain'' and 
``watershed'' on an individual basis. I fail to see how 
individual interpretation by EPA and Corps staff guarantees 
clarity to the regulated community in the implementation of 
this rule.
    Further, the EPA failed to take into account the unique 
landscape of States like Florida when developing their 
approach. Florida's flat topography and broad expanse of flood 
plains, wetlands, and sloughs could subject nearly all of 
Florida's water to Federal jurisdiction under the Clean Water 
Act.
    Under this rule, isolated wetlands located miles from the 
nearest navigable water and never before considered 
jurisdictional would now be defined as ``waters of the U.S.'' 
simply because they are located in the same watershed and, 
therefore, under Federal jurisdiction. Even concrete-lined 
conveyances and other manmade systems intended to capture and 
treat stormwater could be subject to Federal jurisdiction.
    An independent analysis by Breedlove, Dennis and 
Associates, an environmental firm, found in specific instances 
where the proposed rule, if implemented, would expand 
jurisdiction from 13 to 22 percent on two parcels alone.
    Across the Nation, farmers and ranchers are good stewards 
of the land, and the expansion of Federal jurisdiction under 
this rule will deem many areas of farmland as ``waters of the 
U.S.'' and, therefore, subject to Federal jurisdiction.
    With more areas of farmland categorized as ``waters of the 
U.S.,'' farmers will be forced to obtain new permits, including 
section 402 and 404 permits. The requirement to obtain 
additional permits will involve fees for attorneys and 
technical consultants, whose expertise is required to ensure an 
accurate application. An independent analysis conducted in 2002 
revealed that section 404 permits cost an average of $338,000, 
or $300,000 more than the permit required for areas not 
considered ``waters of the U.S.''
    As a national leader in water quality protection and 
restoration, the State of Florida works closely with the EPA. 
And EPA, in the past, has actually praised the work that we do 
as being among the most rigorous protections in the Nation. But 
these proposed requirements will impede and, in some cases, 
dismantle environmental programs statewide.
    The expansion of Clean Water Act jurisdiction to marginal 
waters, such as stormwater ditches and ponds, will actually 
have the effect of diverting local, State, and even Federal 
funds from restoration efforts for truly critically impaired 
and important natural areas. So, instead of funding those 
priorities, limited resources will be diverted toward municipal 
storm system upgrades.
    Florida's best management practices are an example where 
farmers and ranchers work cooperatively and in partnership to 
improve wetlands and watershed areas. The implementation of 
this proposed rule and the associated expansion of Federal 
jurisdiction will decrease landowner willingness to voluntarily 
participate in these programs. The proposed rule will decrease 
wetland protection and restoration in our State because 
landowners will now fear that their restoration activities will 
bring them under Federal wetlands jurisdiction.
    Thank you, Mr. Chairman, for the opportunity to be here, 
and I look forward to your questions.
    Mr. Gibbs. Senator Inhofe, I recognize you.
    Senator Inhofe. Thank you, Mr. Chairman.
    I would ask unanimous consent that Senator Cory Gardner be 
recognized for the purpose of introducing his good friend 
Commissioner Clark.
    Mr. Gibbs. So ordered.
    Senator Gardner. Thank you, Mr. Chairmans.
    And thank you very much to the committee for allowing me to 
be here today to introduce not only Commissioner Clark but also 
to welcome Commissioner Mauck, as well, from Colorado. And I 
know that Senator Bennet was here earlier but, due to 
scheduling conflicts, unable to, so please welcome both of you.
    To the committee, thank you for holding this very timely 
hearing to discuss the EPA-Army Corps of Engineers' proposed 
regulation on ``waters of the United States'' under the Clean 
Water Act as we continue to visit this very important 
discussion.
    It is vital that the Federal Government and Congress have a 
comprehensive understanding of the potential impacts that this 
rule would have on our Nation's counties, particularly those 
counties in the western parts of the United States, where our 
water and our water law is unique to any other place in the 
Nation. In Colorado, it is the only State in the 48 contiguous 
States that all water flows out of and not into, presenting a 
unique challenge for all of us.
    In your effort to do so today, to discuss this issue, I am 
pleased that you have invited Sallie Clark today. And I am 
honored to introduce Commissioner Sallie Clark of El Paso 
County, who is testifying on behalf of the National Association 
of Counties.
    Commissioner Clark serves as the vice president of the 
National Association of Counties and has been a longtime 
advocate for--and recent upgrades, recent new promotions--
longtime advocate for Colorado, local government, and 
unwarranted Federal mandates to and on our States.
    And I appreciate your willingness and your commitment and 
dedication to public service.
    You know, it has been an incredible, challenging couple of 
years for El Paso County, Colorado, dealing with forest fires 
and floods. And in conversations with water districts, 
conservation districts in Colorado, they continue to believe 
that, under the ``waters of the United States'' rule, it could 
be very devastating for their ability to deliver water for the 
needs of their customers, their constituencies, and, indeed, 
the people of Colorado.
    With the EPA's own studies showing that 68 percent of the 
streams in Colorado are intermittent, this proposal will have 
major impacts on all Coloradans, including the energy and 
agricultural sectors.
    If you go into the State capitol building of Colorado, as 
both commissioners know, there is a poem written on the wall 
right in the rotunda that says--and it starts out by saying 
this: ``Here is a land where life is written in water.'' Water 
is tied to Colorado's history, our land, and our success. And 
the last thing we need is for the Federal Government to destroy 
that incredible legacy that we have with a regulation that goes 
too far in impacting our agriculture, our land, our water, and 
our people.
    Welcome.
    Mr. Gibbs. Thank you.
    Commissioner Clark, welcome. The floor is yours.
    Ms. Clark. Thank you, Senator, so much.
    Thank you, Chairmen Inhofe and Shuster, Ranking Members 
Boxer and DeFazio, and members of the committee, for the 
opportunity to testify today on the ``waters of the United 
States'' proposed rule and the potential impact on State and 
local governments.
    My name is Sallie Clark, and I am the first vice president 
of the National Association of Counties, the only national 
organization that represents county governments. For the past 
decade, I have served as a county commissioner in El Paso 
County, Colorado, the home of Pikes Peak. My county is 
considered urban, with a population of over 640,000, but with a 
mix of suburban and rural areas and over 113,000 acres of 
Federal land.
    In all my travels as a NACo leader, I have heard concerns 
from across the country about how counties could be affected by 
the proposed rule. Hearing these concerns and working closely 
with our technical experts--county engineers, legal staff, 
public works directors, and stormwater managers--NACo 
ultimately called for the proposed rule to be withdrawn until 
further analysis and consultation with local officials is 
completed. This decision was not taken lightly.
    I want to be clear: Counties support clean water. Our goal 
is to ensure the public safety and economic vitality of our 
communities while protecting water quality. In my county and 
others, we accomplish this through zoning and ordinances, 
regulating stormwater runoff, prohibiting illegal discharges, 
and establishing penalties for violations.
    That said, I am here today to share with you the four main 
reasons we decided to call for the withdrawal of this proposed 
rule.
    First, this issue is so important because counties build, 
own, and maintain a significant portion of public safety 
infrastructure, and the proposed rule would have direct and 
extensive implications. Local governments own almost 80 percent 
of all public road miles and also own and maintain roadside 
ditches, flood-control channels, stormwater systems, and 
culverts. Defining which waters and conveyances fall under 
Federal jurisdiction has a direct impact on counties, as we are 
legally responsible for maintaining public-safety ditches and 
other infrastructure.
    Second, the agencies developing the proposed rule did not 
sufficiently consult with local governments. Counties are not 
just stakeholders in this discussion; we are partners in our 
Nation's intergovernmental system. By law, Federal agencies are 
required to consult with their State and local partners before 
a rule is published and throughout its development. Although 
EPA did initiate discussions on guidance documents, we were not 
consulted through the 17 months between the guidance 
consultation and the introduction of the proposed rule, despite 
repeated requests.
    This leads to my third point. Due to this inadequate 
consultation, many terms in the proposed rule are vague and 
create uncertainty and confusion at the local level. For 
example, the proposed rule now defines terms like 
``tributary,'' ``significant nexus,'' ``adjacency,'' ``riparian 
areas,'' and ``flood plains.'' Depending on how these terms are 
interpreted, additional public infrastructure could fall under 
Federal jurisdiction. The proposed rule, as currently written, 
only adds to the confusion and uncertainty over how it will be 
implemented consistently across all regions.
    Our fourth and final reason for calling for the withdrawal 
is that the current permitting process tied to ``waters of the 
U.S.'' already presents significant challenges for counties. 
The proposed rule only complicates matters. For example, 1 
Florida county applied for 18 maintenance exemptions on the 
county's network of drainage ditches and canals. The permitting 
process became so cumbersome that the county had to hire a 
consultant to compile all of the technical material required. 
And, 3 months later, as the county moved into its rainy season 
and after spending more than half-a-million dollars, decisions 
on 16 of the exemptions were still pending. Ditches began to 
flood, putting the public at risk. And this is just one of many 
examples.
    In conclusion, while many have attempted to paint this as a 
political issue, in the eyes of county government this is a 
matter of practicality and partnership. We look forward to 
working with you and the agencies to craft a clear and workable 
definition of ``waters of the U.S.'' that achieves our shared 
goal, which is to protect water quality without inhibiting the 
public safety and economic vitality of our communities.
    Thank you again for this opportunity.
    Mr. Gibbs. I thank you.
    Mr. Mauck, the floor is yours. Welcome.
    Mr. Mauck. Thank you. Chairmen Inhofe, Shuster, Ranking 
Members Boxer and DeFazio, I appreciate this opportunity to 
testify.
    My name is Timothy Mauck. I was elected to the Clear Creek 
Board of County Commissioners in 2010 and reelected in 2014.
    As a county commissioner, I want to convey how important 
clean water is for my community. The proposed clean water rule 
will protect the headwaters, tributaries, and wetlands that are 
essential for providing the high-quality water that supports 
the hunting, fish, rafting, and outdoor recreation that are an 
economic backbone of my community. Clean water from streams and 
wetlands also provide drinking water for thousands of our 
residents.
    Clear Creek County is truly a headwater county. We are 
bordered by the Continental Divide and provide clean water for 
downstream communities within the Denver metropolitan area. We 
are also facing the legacy impacts of historic silver and gold 
mining. We have struggled with maintaining water quality due to 
mine runoff and have worked consistently to treat contaminated 
water and reclaim abandoned mine sites.
    I know too well the impacts of contaminated water and the 
cost and time it takes to mitigate and treat it. I also know 
Clear Creek has made a remarkable rebound over the past 30 
years as we have all made progress, like so much of the 
country, toward the Clean Water Act goals of fishable, 
swimmable waters.
    In addition, these strides in water quality, while 
important in their own right, have also made Clear Creek County 
an outdoor recreation destination. By river segment, Clear 
Creek hosts the second most commercial rafting trips in 
Colorado. Whitewater rafting alone has a total economic impact 
to the community of approximately $23 million annually. Hunting 
and angling generates a total economic impact of nearly $6 
million to the county.
    This is not only the story of Clear Creek but also across 
Colorado and the Nation. According to the National Shooting 
Sports Foundation, hunting and angling's total economic impact 
is $192 billion. Outdoor recreation in Colorado generates $13.2 
billion and employs more than 124,000 people. Across the 
country, it generates $646 billion and 6.1 million jobs.
    Many of these jobs are dependent on clean water and will 
benefit from the EPA and Army Corps of Engineers' efforts. In 
fact, 55 percent of stream miles in the historic range of 
native trout in our State are intermittent or ephemeral and 
would clearly be protected by the clean water rule.
    Even with seasonal flows, these waters provide habitat for 
trout or simply maintain the water quality needed by fish in 
downstream rivers. And as an avid waterfowler, I have spent 
many cold mornings in the wetlands, sloughs, and creeks feeding 
the South Platte and know how important it is to protect these 
places from irresponsible development.
    As an elected official with the responsibility of looking 
after our county's finances, I am also concerned about undue 
regulatory burden. The EPA and Corps of Engineers have 
consistently demonstrated that this rule is not an expansion of 
the Clean Water Act authority. It will restore jurisdiction to 
fewer of the waters than had been covered from the passage of 
the Clean Water Act in 1972 until the first Supreme Court 
decision in 2001 weakened the law.
    During that time period, the population of Clear Creek 
County increased from approximately 5,900 to 9,400 individuals. 
Colorado's population doubled from 2.2 million to 4.4 million. 
The State's gross domestic product increased more than tenfold, 
from $13.6 billion to $181 billion. Furthermore, natural gas 
production increased from 116 trillion cubic feet to 817 
trillion cubic feet, and coal production increased from 5,500 
short tons to 33,000 tons.
    Although we are small, we are expected to grow in the 
future. An expansion of Interstate 70 is underway and, along 
with it, a growth in home and road development from those from 
the nearby metropolitan area seeking solace in the mountains.
    In addition, we face a challenge of economic 
diversification as we approach the end of life of the Henderson 
Mine, which provides a large portion of our property tax base. 
There are hundreds of mine claims that exist in undeveloped or 
undeveloped areas, many of which are very near headwater 
streams. The rule will help us balance the need for 
diversification while providing the necessary protection for 
streams and wetlands as we encourage development of all kinds.
    If opponents of the rule were worried about returning to 
the previous jurisdiction of the Clean Water Act, they should 
realize that protecting intermittent and ephemeral streams and 
wetlands is fully consistent with population growth, energy 
production, and economic development writ large. I am ready to 
have my county's headwaters and wetlands clearly protected 
under the Clean Water Act.
    Thank you, Mr. Chairman.
    Mr. Gibbs. Mr. Srolovic, welcome. The floor is yours.
    Mr. Srolovic. Thank you.
    Good afternoon, Chairmen Inhofe and Shuster, Ranking 
Members Boxer and DeFazio, and members of both honorable 
committees. I am Lem Srolovic, the environmental bureau chief 
in the office of New York State Attorney General Eric 
Schneiderman. Thank you for this opportunity to discuss with 
you the proposed ``waters of the U.S.'' rule.
    Back when I was a boy growing up in Wildwood, Georgia, in 
the early 1970s, many of the creeks and rivers where I hunted 
and fished were in a sorry state. The Tennessee River was 
contaminated with toxic industrial waste. When my brother and I 
floated down Lookout Creek, it started stinking when we reached 
the railway yards in Wahatchee.
    But the pollution problems in my boyhood waters were not 
local; they were not regional problems. They were national 
problems. Up in New York, the Bronx River, once the home of 
beavers, was described as an open sewer. In central New York, 
people driving by Onondaga Lake during the summer rolled up 
their windows because the lake smelled so bad.
    Fortunately, Congress responded and in 1972 passed the 
Clean Water Act. With the act, Congress fundamentally rewrote 
Federal water pollution control law. The old law had addressed 
water pollution by authorizing Federal cures for water 
pollution problems on an ad hoc, water-by-water, problem-by-
problem basis, but that narrow approach had failed. With the 
Clean Water Act, Congress replaced that failed scheme with a 
comprehensive approach to pollution control.
    The waters protected by the act are broad, covering, as the 
U.S. Supreme Court has written, virtually all surface waters in 
the country. With the act, Congress implemented the tried and 
true principle that an ounce of prevention is worth a pound of 
cure.
    In the ensuing years, the States, EPA, and the U.S. Army 
Corps together have implemented the statute, and it is working. 
My boyhood Lookout Creek now hosts a popular nature center. A 
beaver has returned to the Bronx River. And Onondaga Lake now 
is one of America's top 10 bass fishing destinations.
    With the proposed rule, the Federal agencies that Congress 
charged with implementing the Clean Water Act are doing their 
job. They are providing much needed clarification to the 
question of whether the law applies to a particular water body. 
Presently, jurisdiction decisions are made on a case-by-case 
basis subject to fractured and inconsistent legal 
interpretation by the courts. The result is uncertainty, delay, 
and further litigation. By clarifying where the law applies, 
the rule will accelerate jurisdiction decisions and make them 
more predictable and less costly.
    The proposed rule is grounded in solid, peer-reviewed 
science. EPA's science report is based on more than 1,200 peer-
reviewed scientific studies and has been affirmed by the 
Agency's independent Science Advisory Board. The science report 
shows the powerful influence that upstream waters have on the 
physical, chemical, and biological integrity of downstream 
waters.
    It is important to note that each of the continental States 
is both upstream and downstream of one or more other States. 
New York, for example, is downstream of 13 States and is 
upstream of 19. The proposed rule advances the Clean Water 
Act's protection of State waters downstream of other States by 
anchoring a nationwide Federal floor for water pollution 
control. The floor is critical for maintaining the consistency 
and effectiveness of the downstream States' water pollution 
programs. This is because the Federal statute preempts many 
common-law remedies traditionally used to address interstate 
water pollution, leaving the Clean Water Act as the primary 
mechanism for protecting downstream States from the effects of 
upstream pollution.
    Critically, by protecting interstate waters, the proposed 
rule allows States to avoid imposing disproportionate and 
costly limits on dischargers in their own State in order to 
offset upstream discharges which might otherwise go 
unregulated.
    A robust Clean Water Act is important to States and 
municipalities because, by protecting our waters, it keeps 
billions of dollars in taxpayers' pockets and supports our 
State economies. In the interest of clean water, the health and 
welfare of our citizens, and the economy of our States, we 
should not go back to failed approaches. We should go forward 
with what is working.
    The ``waters of the United States'' rule provides much-
needed clarification regarding the applicability of the act and 
anchors an essential nationwide Federal floor for water 
pollution control.
    We look forward to the completion of a final rule, and I 
look forward to answering any questions.
    Mr. Gibbs. Thank you.
    I recognize Senator Inhofe for 5 minutes. Thank you.
    Senator Inhofe. Thank you, Mr. Chairman.
    I will start off with my good friend Scott Pruitt.
    Now, confession is good for the soul. I am not a lawyer, 
and so I have to ask some obvious questions of people who are 
lawyers.
    Now, I want to read something, and tell me, if you would, 
General, what is ambiguous about this language.
    Section 101(g) of the CWA states--and this is a quote. It 
says, ``The authority of each State to allocate quantities of 
water within its jurisdiction and that shall not be superceded, 
abrogated, or otherwise impaired by this act.''
    What is unclear about that?
    Mr. Pruitt. Mr. Chairman, I don't think much. And I don't 
think that it takes a legal mind to draw that conclusion.
    I would add this, as well: The CWA states in its text that 
agencies must recognize, preserve, and protect the primary 
responsibilities and rights of States to plan the development 
and use of land and water resources.
    This body, Congress, recognized at the creation of the 
Clean Water Act that the role of the States was important, but, 
more than important, it was primary in land use and water 
management decisions.
    In the State of Oklahoma, we have a water resources board 
that is required to measure out permits to those that seek to 
use water in the State. We have a DEQ that is consistently 
involved in water quality issues.
    The decision and the discussion here today is not whether 
the EPA has any role in the process. They, in fact, do. But 
they only have a role when we have navigable waters, 
interconnectivity, because jurisdiction is at issue here, Mr. 
Chairman. And I think the EPA, through this redefining of 
``waters of the United States,'' is seeking to extend its 
authority to displace and duplicate the States' authority.
    Senator Inhofe. You know, Commissioner Putnam and 
Commissioner Clark both said statements to the effect that we 
in Colorado, we in Florida want clean land, we want clean air, 
we want clean water. Why do you feel it is necessary to 
reaffirm that?
    And I won't ask you to answer it, because I will answer it 
for you. There is this assumption that no decisions are good 
decisions unless they are made in Washington. And whether you 
picked it up or not during the opening statement of the first 
panel, they feel--and those individuals who are embracing their 
new authorities that they are seeking are ones who do not 
believe that you are capable in the States to do as good a job 
as they would do in the Federal Government.
    What do you think of that?
    Mr. Pruitt. Well, Senator, I think, in many instances, even 
beyond the Clean Water Act, there are those in Washington that 
populate the EPA and other agencies that see the States as a 
mere vessel of Federal will. And so long as the States agree 
with the view and the perspective of the agencies here, there 
is no conflict. But when there is disagreement about how 
decisions should be made--and I would add this, decisions that 
have been reserved by this body, by Congress to the States--
that is when the competition and the conflict arises.
    And that is what we have here. We have a situation where 
the EPA is extending its authority into areas that are 
historically and, I might say, almost exclusively the purview 
of the States. And they are doing so because they want to 
dictate to the States how we should manage our water and use 
our water.
    Senator Inhofe. Well, I appreciate that. And we live with 
this on a daily basis.
    There is some other language in here I am going to ask the 
three of you to respond to, because when I first read this, I 
know how I interpret it. It says that agencies have told States 
that these rules will not actually provide any certainty 
because most of the decisions are left to the, quote, ``best 
professional judgment of the EPA and the Corps of Engineers.''
    What do you think about that language?
    Mr. Pruitt. Well, I think that and also what the 
commissioner mentioned, Mr. Chairman, about the catchall 
category, there is a catchall category the EPA is proposing 
with this rule that they say the purpose is to provide 
transparency and predictability and consistency with respect to 
the scope of the CWA, that when it is reduced down to the 
discretion, the judgment on a case-by-case basis, that 
definitely does not provide certainty and predictability----
    Senator Inhofe. Uh-huh.
    Mr. Pruitt [continuing]. To those folks that are regulated 
across the country.
    You know, the greatest benefit that we have of rule of law 
and regulation is that those that are subject to regulation 
know what to expect and know how to conform their conduct. And 
when we have decisions made on a case-by-case basis, that is 
almost impossible to happen.
    And so, Senator, I am very concerned not only about what 
you have raised but also this catchall category that we have 
already identified.
    Senator Inhofe. Yeah.
    And to Commissioners Putnam and Clark, does that phrase 
concern you as much as it does me?
    Ms. Clark. Thank you, Senator.
    Yes, it does. And I heard the EPA this morning even say 
that it was confusing; there were a lot of components that are 
still confusing.
    It broadens the number of county-maintained public safety 
ditches and infrastructure that would require section 404 
Federal permits, and it is a process that is already 
cumbersome. There are counties across the Nation that I can 
look to examples where it has increased the length of time. The 
clarity is a problem as to how it is being enforced by regions 
as well as the headquarters.
    And I think we heard today that very thing, that there is 
ambiguity and confusion, and we need to be at the table to help 
solve that problem.
    Senator Inhofe. Thank you.
    Mr. Gibbs. Mrs. Napolitano, the floor is yours.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    There is an area that we really haven't delved into, and 
that is the cost of inactivity. And I would like to ask either 
Mr. Mauck or Mr. Srolovic.
    Several comments on the proposed rules have expressed 
concerns about the costs associated with the rule. But in your 
personal view or that of your organization, is there a cost 
associated with the inactivity when compared to the existing 
rule?
    Mr. Srolovic. Thank you.
    I believe there is a cost, and I think the cost is 
positive. As things exist now, there is fractured conflicting 
case law. The courts have invited the agencies to clarify that 
through a rulemaking.
    And so I think that, as time goes by and the status quo 
remains, there will be a continuing cost in greater delay of 
jurisdiction. I think the rule will very much help clarify 
when, in most cases, the law applies and when it does not.
    It is not perfect. It is undergoing further work. There has 
been a lot of comments. But I think it will help bring down the 
cost over the status quo.
    Mrs. Napolitano. Mr. Mauck?
    Mr. Mauck. Yes, if I may. Thank you for the question.
    As a headwater county, we are consistently under scrutiny 
in terms of the water and the water quality that flows out of 
our county and downstream to other users. And for a small 
county, the treatment of that water continues to increase and 
it becomes very expensive for us.
    And the assurances that we could put in place to assure 
that the intermittent streams, the headwater, especially in a 
former mining community like mine where we still have sites out 
there--that the water that is--it is coming down from those 
streams are protected. The cleaner that that water is coming 
into our systems, the cheaper it is for us, and easier for us 
to send better quality down the hill.
    Mrs. Napolitano. Thank you, sir.
    Mr. Srolovic, suggestion has been made that New York State 
is opposed to the rulemaking. And is this position true?
    Mr. Srolovic. Congresswoman, I think there are two points 
here. The answer is no. New York is not opposed to the rule.
    Our environment and agricultural commissioners in New York 
strongly support Agency rulemaking to anchor a Federal water 
pollution control floor on a national level, which is essential 
to protect States from upstream pollution. The commissioners 
raised some concerns about the lack of pre-rulemaking 
consultation with States and some of the definitions of certain 
terms in the proposed rule.
    While consultation before is always better than after, the 
Corps and EPA have undertaken significant outreach to States, 
municipalities, and other stakeholders, holding some 400 
meetings around the country. One of those was in Worcester, 
Massachusetts, where our office participated and gave views, 
along with many others, about these definitions and the 
importance of the rule.
    So the agencies also extended their public comment period 
twice and have taken strides to listen to everyone and craft a 
better, clearer rule.
    Mrs. Napolitano. Thank you.
    Mr. Mauck.
    Mr. Mauck. I am sorry. Could you repeat the question?
    Mrs. Napolitano. Well, the question to you would be the 
opponents of the rule argue that the process was flawed, that 
the concerns of the State and local governments were not 
adequately addressed.
    Were you given ample time and opportunity? I know that they 
have held--like Mr. Srolovic was indicating, there were over 
400 meetings, et cetera. Was there ample opportunity for input?
    Mr. Mauck. Yes. You know, these discussions have been 
ongoing for a number of years now. But there was a very 
lengthy--200 days for public comment. I believe we have 
received--there have been submitted about 1 million comments. I 
feel like I have had adequate time. I have been able over the 
past year to actually address this through letters to the 
editor, as a matter of fact. So absolutely.
    Mrs. Napolitano. Thank you, Mr. Chair. I yield back.
    Mr. Gibbs. I yield 5 minutes to myself.
    Mr. Srolovic, you were talking about that tough name. In 
your testimony, you talk a lot about the need for 
clarification, and I think there is all agreement on that on 
CWA.
    But, however, I find it interesting. I am looking at the 
comments made by New York State from the environmental 
department and the agricultural department filed on November 
13, 2014, and they are very concerned about the definitional 
concerns in the proposed rule that prevents New York from 
providing meaningful comments, the impact of the proposal, 
economic impacts, a one-size-fits-all approach to redefine the 
regulated waters will only lead to legal challenges, cause 
unnecessary harm to farmers, and could lead to other unintended 
consequences, and they question the process was inadequate 
because they weren't consulted enough.
    So I guess my question is: Are you aware of those comments? 
I think you are. Did you consult with these State agencies, 
besides being the representative in the Attorney General's 
Office in the State of New York?
    Mr. Srolovic. We do represent the State agencies in court 
and on other legal issues. I think the fundamental point raised 
by the commissioners in that letter was that, while there is a 
need for a rule, it is very important for that rule to have as 
much clarity in its terms as possible and, at the same time, 
maintain a flexibility that reflects regional differences.
    In New York, we have a lot of water. We are blessed with a 
lot of water. We have a lot of wetlands. Other States, 
Colorado, a very different circumstance.
    Mr. Gibbs. Yeah. A one-size-fits-all policy I don't agree 
with, especially with water.
    But do you agree with these State agencies in your State, 
that this proposal would be an expansion of the regulatory 
authority of the U.S. EPA under the Clean Water Act?
    Mr. Srolovic. We do not see it as a significant expansion 
of the jurisdiction of the waters of the United States. We 
think it codifies the principles that have been applied, that 
it properly interprets the guidance that a majority of Justices 
have provided from the U.S. Supreme Court, and is an important 
step forward.
    Mr. Gibbs. OK. I guess for the other panelists, costs to 
the counties, States. If this rule, as proposed, goes into 
effect, what is it going to do to the cost of government--for 
local governments?
    Ms. Clark. Thank you, Mr. Chairman. I will try and go first 
and be brief.
    Financially, actually, it is--I mean, it is reaching 
farther out based on the ambiguity and the confusion that has 
been placed on the rules.
    If you look at the Small Business Administration's Office 
of Advocacy and the analysis that they did, there would be a 
cost not just to small businesses, but to small counties, 
50,000 or less, and that makes up about two-thirds of the 
Nation's population.
    In addition to that, if we look back and look at--the delay 
of projects is a cost to us locally. The longer we delay, then 
it puts safety at risk. It puts water at risk, frankly, and 
water quality.
    And then the other component of that really is to look back 
and see when the EPA did their analysis and what data they 
used. And it was older data. It wasn't based on today's costs 
in place. So, yes, there is a significant cost.
    Mr. Gibbs. I want to get to one more question here.
    I am a firm believer that the CWA was put into place 
because we had major problems. This is what you saw in the 
earlier panel, the Cuyahoga River and all that. The CWA was 
structured to be cooperative federalism between the States and 
the Feds and with the Federal Government in oversight and 
guidance. That is why the States had to submit the 3-year plan 
of action.
    Maybe Mr. Pruitt or Mr. Putnam might want to comment on how 
that partnership has been working or not working or what the 
process has been of implementing and enforcing the Clean Water 
Act.
    Mr. Putnam. I will be brief.
    In answer to your first question, we know from urban 
counties just on stormwater and from an agricultural 
perspective the number is easily in the billions, easily in the 
billions. Twenty-percent increase in jurisdictional wetlands 
minimum.
    We know from the previous study that is now 12 years old 
that it costs over $300,000 to get a 404, and we know the 
wetlands mitigation is $100,000 per acre to mitigate.
    So when you grow the impacted areas and you add the 
regulatory cost and you add the mitigation factors, it is 
easily in the billions not only for ag, but also for our 
counties.
    And I will let my attorney general friend speak to the 
partnership issue.
    Mr. Pruitt. You know, Mr. Chairman, I think that that is 
the concern that you have identified. I think, historically, 
the relationship has been strong. I mean, in Oklahoma, we have 
water quality issues. The Illinois River in the eastern part of 
our State, there have been ongoing concerns between Arkansas 
and Oklahoma about phosphorus load in that body of water.
    Both the EPA has been concerned about that, but so has the 
State of Oklahoma. We have actually negotiated a memorandum of 
understanding with Arkansas, and we have worked on both sides 
of the border to take regulatory steps to reduce phosphorus 
levels in the Illinois River. And so I think you see examples 
both at the State level and at the Federal level of concern 
about water quality.
    But here my comments to the panel and to the committee are 
focused more upon this expanded view of the definition that 
gives the EPA jurisdiction to interpose itself into those areas 
that are traditional, historical, and, I believe, lawful to the 
States on primacy. And that is what we are seeing on this 
expanded definition, Mr. Chairman.
    Mr. Gibbs. Thank you.
    Mr. Duncan, you are recognized.
    Mr. Duncan. Thank you, Mr. Chairman.
    The Rapanos clean water decision was mentioned when I was 
here this morning briefly. Let me read what the Federal 
district judge said in that case.
    He said, ``I don't know if it is just a coincidence that I 
just sentenced Mr. Gonzales, a person selling dope on the 
streets of America. He is here illegally. He is not an American 
citizen. He has a prior criminal record.
    ``So here we have a person that comes to the United States 
and commits crimes of selling dope and the Government asked me 
to put him in prison for 10 months.
    ``And then we have an American citizen who buys land, pays 
for it with his own money, and he moves some sand from one end 
to the other and the Government wants me to give him 63 months 
in prison.''
    And this Federal district judge said, ``Now, if that isn't 
our system gone crazy, I don't know what is. And I am not going 
to do it.''
    Well, he was reversed. But it shows you can take any of 
these laws too far. And I can tell you no one is talking about 
doing away with the Clean Water Act or going back to where we 
were in 1970.
    But it is also ridiculous to act like we haven't made any 
progress and that things are worse now than they were in the 
1970s. So we have to make these rules even tougher.
    And I remember, when I chaired this subcommittee, the mayor 
of Los Angeles came to me and he said the EPA was coming down 
with some new regulations about grease.
    And he said, ``We have got over 10,000 restaurants in Los 
Angeles.'' He said, ``Most of them are small mom-and-pop 
restaurants.'' He said, ``This is going to run several thousand 
of those small mom-and-pops out of business.'' And we got that 
stopped.
    But I can tell you that people sit up here in Washington 
and they write these rules and regulations. They are mostly 
people who have spent their entire careers in Government. Many 
of them have spent their entire careers here.
    They don't realize the effect that these rules and 
regulations--most of them help the big giants in the industry, 
but they really hurt the small farmers and the small ranchers 
and the small businesses.
    And, in fact, the SBA said of this rule that we are talking 
about--the SBA Office of Advocacy put out this statement and 
said, ``Small businesses are extremely concerned about the rule 
as proposed. The rule will have a direct and potentially costly 
impact on small businesses. The limited economic analysis which 
the Agency submitted with the rule provides ample evidence of a 
potentially significant economic impact.''
    And, you know, I noticed in the biographies--I was here for 
an hour this morning and I listened to Administrator McCarthy 
and Assistant Secretary Darcy. And I noticed in their 
biographies neither one of them has ever managed a farm or a 
ranch or been in a small business.
    They just don't understand the pressures and how difficult 
these positions--these jobs are and how tough it is when you 
have to fight ordinary competition, but then you have to take 
on your Government that has unlimited funds when you have to 
take them on, to boot.
    And then people wonder why so many small and medium-sized 
businesses go out of business, and all of these college 
graduates wonder why we have so many of them working as waiters 
and waitresses in restaurants because we sent millions of good 
jobs to other countries for the last 40 years or so.
    And a lot of it--an awful lot of it is because of the 
environmental rules and regulations and red tape. And if we 
don't wake up and realize that, we are going to keep hurting 
these small businesses, these small ranches, these small farms.
    And I just get sick and tired of these bureaucrats sitting 
up here coming up with these rules and regulations that they 
have no understanding of who it is going to hurt, how much 
effect it is going to have.
    I remember, when I chaired this subcommittee, we had a 
cranberry farmer from Massachusetts who broke down in tears 
talking about the effect that some of these EPA clean water 
rules were already having on his farm.
    And to come in and expand them at this point now is just 
wrong, in my opinion. And so I am opposed to it. And I notice 
that almost all the small business groups and almost all of the 
agriculture and farm groups are opposed to it, too.
    Finally, I will just say I think I am the only one here 
that has served with Secretary Putnam. He was a great Member of 
Congress, and he has got a great future ahead of him in the 
State of Florida.
    I also had the privilege of serving, General, with your 
Governor, and she was a fine Member and outstanding Member of 
this body, also. And I am real proud of the work she is doing 
as your Governor.
    Mr. Chairman, thank you very much.
    Mr. Gibbs. Mr. Rokita, 5 minutes.
    Mr. Rokita. Thank you, Chairman.
    It is great to be on your subcommittee. I appreciate being 
here. As you can tell, I am new to the Transportation and 
Infrastructure Committee. That might explain the gap here.
    Mr. Gibbs. This is a full committee hearing here.
    Mr. Rokita. Right. Right.
    Panel 1, where all of the hubbub was, which, Secretary, 
that is where I had the plague. I had the plague earlier this 
morning, but I am here now.
    I really enjoy being this close because I get to really 
focus in on each of your testimonies and appreciate them. As 
the former Indiana secretary of state, I really looked to 
county government to help solve our problems, just like I think 
Washington should be looking to the States to do the same.
    In fact, I was in Colorado, where I learned about vote 
centers from one of your counties, and I know several Indiana 
clerks are members of NACo. But we took vote centers back to 
Indiana and implemented them there. It was good stuff.
    In that vein, I am surprised to hear a local official like 
you, Commissioner Mauck, look to the Federal Government almost 
solely to solve your problems. And that is what I got from your 
testimony, whether it was the clean water or the wildlife that 
helps--that the water helps flourish.
    I couldn't understand when I was listening to your 
testimony why you, as a reelected elected official, feel 
powerless to solve these problems yourself or to go to your 
State legislature.
    Now, remember, before you answer, unless Senator Gardner 
was wrong--and feel free to correct him--all water flows out of 
Colorado. Right? So you are in almost a unique or particularly 
good situation to take care of the situation.
    Why won't you?
    Mr. Mauck. Well, like I said in my testimony, Clear Creek 
County does. We do take an opportunity--we work with the 
Watershed Foundation to clean up a lot of our water.
    Mr. Rokita. What is the need to expand this definition?
    Mr. Mauck. The need is the regulatory uncertainty in terms 
of what waters are in, what waters are out, the delays in the 
permitting as we work through the----
    Mr. Rokita. Yeah. I want to talk about the testimony about 
the delays in the permitting.
    This expands the jurisdiction of the Agency over water. So, 
by definition, you are going to get more permits. So how is 
getting more permits--because there is going to be more water 
under jurisdiction--going to speed up the permitting process?
    The last thing we want to give these agencies--and I don't 
just mean the EPA. But they all seem pretty inept in terms of 
turning work product around. Why would we give them more 
paperwork?
    Mr. Mauck. It is my understanding that this does not expand 
the jurisdiction of the Clean Water Act.
    Mr. Rokita. Oh. It doesn't expand the jurisdiction.
    Mr. Mauck. Does not, is my understanding.
    Mr. Rokita. Yeah. You state that in your testimony, too.
    But, on the other hand, you suggest that the rule would 
protect intermittent ephemeral streams and wetlands that are 
currently not federally regulated.
    Don't these arguments contradict each other?
    Mr. Mauck. They were once regulated before, and I think 
there was more certainty back then with the 2001 and 2006 Court 
rulings. We have kind of entered this gray area now where we 
don't understand what is and what is not.
    Now, I am dealing with a small business community that is 
outdoor recreation-centric and the small mom-and-pop delis and 
ice cream shops that operate on the backs of the rafting 
companies, the outfitter companies, the people that come into 
camp and recreate and fish and angle.
    Not having certain protections in place and not being 
clear, to me, is rolling the dice on that outdoor recreation 
industry. And, for me, that is all I have after the Henderson 
Mine for my community. But it is a very robust economic engine 
for not only Colorado, but also the rest of the United States.
    Mr. Rokita. Why couldn't a county commission ordinance take 
care of this? Why can't you legislate this yourself?
    Mr. Mauck. I can't speak to the legalities. I am not an 
attorney.
    Mr. Rokita. That is not a legality. It is called 
sovereignty of a State and, in your situation, sovereignty of a 
county.
    And you have been elected by people to act. And it sounds 
like what you are doing is saying exactly what Attorney General 
Pruitt was trying to get at where there are people in this 
country that unfortunately think they have to be vessels of the 
Federal Government.
    And I am going to let Attorney General Pruitt comment on it 
and Secretary Putnam. We have about 30 seconds, if you can 
divide that. And I appreciate your testimony. I want to see if 
you have anything to add to this exchange we just had.
    Mr. Pruitt. Well, I do want to provide a comment with 
respect to the case law just momentarily. You know, there has 
been two recent decisions, the Solid Waste Agency of Northern 
Cook County and, also, the Rapanos decision that has already 
been highlighted.
    And in the SWANCC decision, the Court held that the Corps 
of Engineers exceeded its authority by attempting to regulate 
nonnavigable, isolated, interstate waters.
    In the Rapanos decision, they held that the Corps waters 
must be navigable waters or at least reasonably made to be so. 
There is a reason for that. It is called the Interstate 
Commerce Clause.
    And this body, Congress, has the authority with respect to 
issues that involve interstate commerce as it relates to water. 
If you are dealing purely with intrastate water that cannot be 
regionally connected to an interstate body of water, the 
jurisdiction is exclusively within the States. And that is the 
tension here.
    And so, when you talk about issues of federalism, I agree 
with you, Congressman. I believe that the States are taking 
and, in fact, have taken--I know Oklahoma has done this. We 
have a robust regulatory regime. I have mentioned the Water 
Resources Board and the DEQ working together to deal with land 
use and management and water quality issues.
    There are issues--and I mentioned one, the Illinois River--
with phosphorus load that is affecting us from Arkansas, where 
the EPA has jurisdiction, that we should be very leery of an 
approach that yields to the Federal Government a takeover of 
that land use and water quality issues that are reserved to the 
States presently.
    Mr. Gibbs. OK. Thank you.
    Mrs. Napolitano, do you have something to enter for the 
record?
    Mrs. Napolitano. Yes, Mr. Chairman.
    There was a statement by Ms. Clark, I believe, that the SBA 
Advocacy was concerned about the impact this has on small 
business.
    So I have a release dated October the 2nd from the American 
Sustainable Business Council stating that it appears the SBA is 
arguing that polluting industries have the right to externalize 
their pollution and harm downstream businesses and communities. 
This organization apparently has 200,000 businesses, 325,000 
entrepreneurs, executives.
    I would like to introduce it into the record, please.
    Mr. Gibbs. So ordered.
    [The information is on pages 412-413.]
    Mr. Gibbs. I would like to thank our witnesses for your 
testimony today. Your contribution to today's discussion was 
very insightful and will be very helpful. Hopefully, we are 
going to address some legislation and we can get something 
passed. I do believe it is the role of Congress to address 
this.
    I ask unanimous consent that the record of today's hearing 
remain open until such time as our witnesses have provided 
answers to any questions that may be submitted to them in 
writing and unanimous consent that the record remain open for 
15 days for additional comments and information submitted by 
Members or witnesses to be included in the record of today's 
hearing.
    Without objection, so ordered.
    Any other Members have anything else? If not, then the 
meeting is adjourned.
    [Whereupon, at 3:03 p.m., the committees were adjourned.]
    
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