    [Senate Hearing 114-303]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-303

        OVERSIGHT OF EPA UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL
                                  GOVERNMENTS

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

                                    HEARING

                                   before the

     SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND REGULATORY OVERSIGHT

                                     of the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  JUNE 7, 2016

                                   __________

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

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                                   __________

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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                        ONE HUNDRED FOURTEENTH CONGRESS
                                 SECOND SESSION

                      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
                                  ----------

                 Subcommittee on Superfund, Waste Management,
                            and Regulatory Oversight

                      MIKE ROUNDS, South Dakota, Chairman
    DAVID VITTER, Louisiana              EDWARD J. MARKEY, Massachusetts
    MIKE CRAPO, Idaho                    THOMAS R. CARPER, Delaware
    JOHN BOOZMAN, Arkansas               JEFF MERKLEY, Oregon
    DAN SULLIVAN, Alaska                 CORY A. BOOKER, New Jersey
    JAMES M. INHOFE, Oklahoma (ex        BARBARA BOXER, California (ex
        officio)

    Hawkins, George, CEO and General Manager, District of Columbia
      Water and Sewer Authority......................................     5
        Prepared statement...........................................     8
    Glicksman, Robert, Professor of Environmental Law, The George
      Washington University..........................................    12
        Prepared statement...........................................    15
        Response to an additional question from Senator Markey.......    34
    Norris, Hon. Mark, Majority Leader, Tennessee Senate, on behalf
      of the Council of State Governments............................    37
        Prepared statement...........................................    40
        Responses to additional questions from:
            Senator Inhofe...........................................    59
            Senator Rounds...........................................    63
    Leinbach, Hon. Christian, Commission Chair, Berks County,
      Pennsylvania, on behalf of the National Association of Counties    66
        Prepared statement...........................................    68
        Responses to additional questions from:
            Senator Inhofe...........................................   112
            Senator Rounds...........................................   116
    Berrey, Hon. John, Chairman, Quapaw Tribe of Oklahoma............   118
        Prepared statement...........................................   121

        OVERSIGHT OF EPA UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL
                                  GOVERNMENTS

                                  ----------

                             TUESDAY, JUNE 7, 2016

                                   U.S. Senate,
             Committee on Environment and Public Works,
                  Subcommittee on Superfund, Waste Management,
                                      and Regulatory Oversight,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 2:36 p.m. in room
    406, Dirksen Senate Office Building, Hon. Mike Rounds (chairman
    of the subcommittee) presiding.
        Present: Senators Rounds, Markey, Boozman, and Inhofe.

                OPENING STATEMENT OF HON. MIKE ROUNDS,
              U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

        Senator Rounds. Good afternoon, everyone. While we are
    waiting on Mr. Markey to arrive, I think we will begin with
    opening statements just to preserve your time as well.
        I would like to, first of all, let you know that the
    Environment and Public Works Subcommittee on Superfund, Waste
    Management, and Regulatory Oversight is meeting today to
    conduct a hearing on Oversight of EPA Unfunded Mandates on
    State, Local, and Tribal Governments. Today we will examine the
    EPA's compliance with the Unfunded Mandates Reform Act and the
    impact of unfunded mandates imposed by the EPA on State, local,
    and tribal governments.
        I am pleased our witnesses include State, local, and tribal
    representatives with extensive experience in balancing their
    demands required of States, localities, and tribes in complying
    with EPA regulations while managing limited resources and
    budgets.
        The Unfunded Mandates Reform Act, or UMRA, was enacted in
    1995 and sought to avoid imposing unfunded Federal mandates on
    State, local, and tribal governments and to make certain
    Federal agencies take costs into account when imposing new
    regulations.
        When a Federal agency seeks to impose regulations on a
    State, local, or tribal government that will result in $100
    million or more a year in expenditures, UMRA requires Federal
    agencies to evaluate a reasonable number of regulatory
    alternatives and choose the most cost effective alternative
    that will meet the regulatory goals of the agency without
    imposing unreasonable compliance costs on smaller governments.
    However, the EPA's overly burdensome and aggressive regulatory
    agenda has resulted in billions of dollars in regulatory costs
    on State, local, and tribal governments and often leads to
    citizens' footing the bill.
        Under the current Administration, the regulatory burden
    imposed by the EPA on the American people has steadily
    increased. According to the American Action Forum, from 2009 to
    2016, the EPA has finalized 163 overall regulations at a
    regulatory cost of $312.2 billion.
        The number of unfunded mandates being imposed by the EPA
    has also increased. From 2005 to 2008, EPA finalized seven
    regulations that triggered UMRA. However, from 2009 to 2014,
    the EPA issued 19 rules that contained unfunded mandates, a
    total of more than three annually. Further, in just the past 2
    years, the EPA has moved forward with finalizing multiple
    regulations that will impose unprecedented costs on State,
    local, and tribal governments.
        Despite the Administration's insistence that most of these
    rules are not unfunded mandates, in reality, rules such as
    Waters of the U.S., the ozone NAAQS rule, and the Clean Power
    Plan will undeniably result in hundreds of millions of dollars
    of compliance costs imposed on small governments faced with
    limited resources. For these rules, State, local, and tribal
    governments were not properly consulted throughout the
    rulemaking process as required by UMRA. The EPA finalized these
    regulations without considering the impact these regulations
    will have, and the EPA did not consider alternatives that would
    be more cost effective and easier to comply with before
    imposing these large, one-size-fits-all regulations that will
    have little environmental benefit.
        As a result, State, local, and tribal governments will be
    forced to use limited resources to comply with burdensome
    Federal regulations when they could put them to better use
    providing basic services and benefits to their citizens.
    Further, some small governments have no other choice but to
    raise taxes on American families in an attempt to manage the
    cost of complying with these Federal regulations.
        UMRA was created to make certain Federal agencies took the
    time to consider how Federal regulations would impact those
    required to comply with them. Unfortunately, the EPA has issued
    regulations in a way counter to the core intent of UMRA and
    continues to impose burdensome, costly regulations without
    undertaking proper consultation process or analyzing more cost
    effective alternatives.
        Federal agencies cannot continue to impose billions of
    dollars in regulatory costs on State, local, and tribal
    governments. We must recognize the unique characteristics of
    these governments that are tasked with managing multiple
    Federal, State, local and responsibilities with limited
    resources, while also trying to provide for American families.
    State, local, and tribal governments should be equal partners
    with the EPA in the regulatory process rather than victims of
    an adversarial regulatory process.
        I would like to thank our witnesses for being with us here
    today, and I look forward to hearing your testimony.
        Now I would like to recognize my friend, Senator Markey,
    for a 5-minute opening statement.

              OPENING STATEMENT OF HON. EDWARD J. MARKEY,
              U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

        Senator Markey. Thank you, Mr. Chairman, very much, and I
    thank you very much for scheduling today's hearing.
        Imagine rivers catching fire, cities choking on smog, and
    toxic chemicals seeping into the classrooms of school children.
    Imagine an odorless, tasteless, and colorless toxic gas being
    sprayed across your entire community. These aren't the plots of
    a horror movie, but the stories of the Cuyahoga River, Los
    Angeles, Love Canal, and the former prolific use of the
    insecticide DDT, described by Rachel Carson in her book, Silent
    Spring.
        These catastrophes started an environmental revolution in
    our country. President Nixon created an Environmental
    Protection Agency in 1970, saying that we must preserve ``the
    earth as a place both habitable by and hospitable to man.'' And
    in an unbelievable decade of environmental activism between
    1970 and 1980, Congress passed the Clean Water Act, the Safe
    Drinking Water Act, the Toxic Substances Control Act, and the
    Resource Conservation and Recovery Act, and significantly
    strengthened the Clean Air Act and the Federal Insecticide,
    Fungicide, and Rodenticide Act.
        These laws have saved countless lives and billions of
    dollars in health costs and created an expectation that the air
    we breathe, the water we drink, and the land we use are safe.
        Much has changed since those bedrock environmental laws
    were first enacted. Eight-track tapes, the Ford Pinto, and pet
    rocks were, thankfully, left in the 1970s. But what has also
    changed is that EPA has been so effective that people now take
    clean air, clean water, and land that is also clean--they take
    those laws for granted.
        Contrary to the doom and the gloom prognostications of
    polluters, we have cleaned up the environment and grown the
    economy at the same time. Since the strengthening of the Clean
    Air Act in 1970, there has been a 70 percent reduction in smog,
    a 70 percent reduction in soot, and a 70 percent reduction in
    other pollutants. Meanwhile, American gross domestic product
    has grown by more than 200 percent.
        From Flint, Michigan, to the Tar Creek Superfund site on
    the lands of Chairman Berrey's Quapaw Tribe, we have a
    responsibility to ensure that all people have access to clean
    air and safe water and land. The Unfunded Mandates Reform Act
    was enacted in 1995 as a way to better understand the economic
    impact of Federal mandates on State, local, and tribal
    governments and ensures that they are consulted, establishes a
    procedural mechanism for Congress to block consideration of
    legislation containing unfunded mandates, and requires detailed
    cost-benefit analysis.
        Since 1995, Executive Orders 12866 and 13123 have also
    established cost-benefit analysis requirements for agency
    regulations. Similarly, the Administrative Procedures Act
    requires agencies to conduct cost-benefit analysis when issuing
    rules.
        The EPA is actually the most aggressive agency of the
    entire Federal Government in implementing Executive Order
    13123, having voluntarily applied its requirements to more of
    its rules than required, which has resulted in a 10-fold
    increase in EPA rules requiring consultation with State and
    local governments. Yet some in Congress want to add even more
    requirements, analysis, and roadblocks to the already lengthy
    and extensive regulatory process.
        Everyone on this committee agrees that the EPA should have
    to do cost-benefit analysis and consult with stakeholders.
    Everyone should also agree that adding so many layers to the
    rulemaking process that it becomes paralyzed will result in the
    erosion of the important public health protections Congress
    intended these laws to provide, because undermining our public
    health gains could truly be the beginning of a new horror
    story.
        Mr. Chairman, I thank you for having this hearing, and I
    yield back the balance of my time.
        Senator Rounds. Thank you, Senator Markey.
        Our witnesses joining us for today's hearing are Mr. George
    Hawkins, CEO and General Manager, District of Columbia Water
    and Sewer Authority; Mr. Robert Glicksman, Professor of
    Environmental Law, the George Washington University; Hon.
    Senator Mark Norris, who is the majority leader of the
    Tennessee General Assembly, on behalf of the Council of State
    Governments; Hon. Christian Leinbach, Commissioner Chair, Berks
    County, Pennsylvania, on behalf of the National Association of
    Counties.
        And I would like to call upon Chairman Inhofe, as the
    senior member from Oklahoma, to introduce our final guest
    today.
        Senator Inhofe. First of all, let me say that it is really
    nice to have John Berrey here. John Berrey is the Chairman of
    the Quapaw Tribe in my State of Oklahoma. We have been good
    friends for many years, as have Senator Boozman and John
    Berrey.
        But, you know, I suffered through being mayor of the city
    of Tulsa through over-regulations and unfunded mandates, and I
    remember, as you pointed out, Mr. Chairman, in your opening
    statement, that we had to start passing tax increases because
    these mandates were in fact mandates, and they were unfunded.
    And I remember the first act I had to do was to pass a 1 cent
    tax increase just to take care of unfunded mandates.
        So it is a problem that has been there for a long time.
    Yes, right now I have the Congressional Record in front of me
    from 1995, but our effort goes all the way back to 1979.
        But back to John Berrey, a great guy, a good friend, and
    who is going to give us a perspective that I don't believe we
    have had this before, as to the tribal effects that come from
    unfunded mandates.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Inhofe follows:]

                      Statement of Hon. James M. Inhofe,
                    U.S. Senator from the State of Oklahoma

        Thank you, Subcommittee Chairman Rounds, for convening
    today's oversight hearing, and thank you to our witnesses for
    being here to testify--in particular, our State, local, and
    tribal representatives.
        Today's topic is especially important for me because the
    time I spent as Mayor of Tulsa showed me how difficult it is
    for cities to balance compliance with unfunded Federal mandates
    while also responding to various local concerns and budget
    constraints. At that time, unfunded Federal mandates on Tulsa,
    primarily those from the U.S. Environmental Protection Agency
    (EPA), forced me to pursue a 1 cent sales tax for capital
    improvements. I was also on the Board of Directors for the
    Conference of Mayors, along with Senator Feinstein when she was
    a mayor, advocating unfunded Federal mandates reform, so this
    is a bipartisan concern that has been ongoing.
        Indeed, I was an original cosponsor of the Unfunded
    Mandates Reform Act (UMRA), enacted in 1995, because I thought
    it would serve as a useful tool to safeguard other levels of
    government from unjustified mandates by the Federal Government.
        Unfortunately, as this committee's oversight has exposed,
    EPA's regulatory process has a pattern where the Agency evades
    the requirements in laws that are meant to serve as a check on
    EPA's regulatory overreach.
        EPA has used UMRA's definitions and exemptions to their
    advantage to push the Administration's priorities through the
    rulemaking process while minimizing the far reaching effects of
    its rules. For instance, EPA claimed its Waters of the U.S.
    (WOTUS) rule and so-called Clean Power Plan do not trigger UMRA
    because the rules are not expensive enough. We will hear from
    our witnesses today about how these rules, and many more, will
    impose significant costs on State, local, and tribal
    governments, despite EPA's assessment. It is astounding that
    many of EPA's costliest and most controversial rules have
    escaped UMRA's coverage.
        While often avoiding UMRA's requirements on major rules,
    Obama's EPA has still been promulgating more rules that trigger
    UMRA than the previous Administration. Government-wide, the
    Office of Management and Budget has reported that rules on
    State, local, and tribal governments triggering UMRA have
    overwhelming been issued by the EPA.
        Even in instances where EPA has reviewed a rule triggering
    UMRA, the Agency falls far short of the law's consultation
    requirements. Consultation with State, local, and tribal
    representatives is a requirement set forth in UMRA as these
    governments all play a critical role in regulatory compliance.
    Yet witnesses today and those at many other hearings have
    explained EPA's approach to consultation is a mere check-the-
    box exercise.
        Better consultation is needed to align EPA's rulemaking
    process with the processes of other governments. For instance,
    many EPA rules, such as the Clean Power Plan, require State
    legislatures to pass legislation to give their State agencies
    the authority and resources to implement the mandates. Further,
    State, local, and tribal governments must all be coordinated in
    planning the implementation of these rules and relay to EPA
    various technical challenges they will face in implementing the
    rule. This consultation should happen before rules are even
    proposed to allow for sufficient time to plan and for rules to
    be altered or scrapped based on co-regulators' feedback.
        This is why it is critical we hear from our State and local
    partners and conduct oversight over EPA's implementation of
    UMRA. Above all, we need to ensure that EPA action upholds the
    cooperative federalism framework where various levels of
    government work together to craft fair and efficient rules in a
    cost effective manner. I look forward to hearing from our
    witnesses today who will share their on-the-ground perspective
    of EPA's compliance with UMRA and implementation of EPA
    unfunded mandates.
        I ask that my full statement be entered into the record.
    Thank you.

        Senator Rounds. Thank you.
        Chairman Berrey, welcome.
        Now we will turn to our first witness, Mr. George Hawkins,
    for 5 minutes.
        Mr. Hawkins, you may begin.

    STATEMENT OF GEORGE HAWKINS, CEO AND GENERAL MANAGER, DISTRICT
                 OF COLUMBIA WATER AND SEWER AUTHORITY

        Mr. Hawkins. Good afternoon, Chairman Rounds, Ranking
    Member Markey, distinguished members of the Subcommittee on
    Superfund, Waste Management, and Regulatory Oversight. My name
    is George Hawkins. I am the Chief Executive and General Manager
    of the District of Columbia Water and Sewer Authority, more
    commonly known as DC Water.
        DC Water is one of the few ``one water'' utilities in the
    country, providing drinking water, waste water, and storm water
    services from one enterprise to millions of retail and
    wholesale customers in the Washington, DC, region. DC Water is
    regulated by EPA Region 3 for Safe Drinking Water Act and Clean
    Water Act compliance. From an environmental health and public
    health perspective, these seminal pieces of legislation have
    brought forth tremendous benefits.
        Growing up in the suburbs of Cleveland, Ohio, I recall
    visiting the Cuyahoga River on a class field trip in 1969 and
    will never forget seeing the surface of the river, which looked
    like a finger painting, water swirling with colors and powerful
    aromas. The same year of my visit, the Cuyahoga caught on fire
    from sparks of a passing railcar and burned for a week.
        Today, thanks to the Clean Water Act, many of our rivers
    are healthy and thriving. Today, thanks to the Safe Drinking
    Water Act, the overwhelming majority of people in this country
    have safe, reliable drinking water at the tap 24 hours a day, 7
    days a week, and 365 days a year.
        In my view, this outcome is one of the great public policy
    accomplishments of the last century and one of the often
    overlooked miracles of modern society. However, it is the
    success of these statutes that highlights the need to be
    flexible and thoughtful to ensure that we continue to derive
    success in the future. We still have water quality challenges
    to overcome and new threats on the horizon.
        Currently, DC Water is in the process of implementing two
    massive projects with a total cost approximating $4 billion.
    Under the terms of a 2005 consent decree, DC Water is
    implementing the $2.6 billion Clean Rivers Project. The first
    phase is underway to construct a massive underground tunnel
    system to control combined sewer overflows to the Anacostia
    River.
        Our second massive undertaking involves removing nutrients
    from our treated water at our Blue Plains facility. EPA's
    discharge permit requires us to reduce dramatically the level
    of nitrogen in treated water we discharge into the Potomac
    River, which leads to the Chesapeake Bay. The recently
    completed enhanced nitrogen removal project cost approximately
    $1 billion.
        DC Water has received some Federal funding for these
    initiatives, but the overwhelming portion of these projects is
    funded by our ratepayers and wholesale customers. Beginning in
    October of next year, the average monthly bill for a
    residential customer will for the first time be over $100, more
    than double the average bill when I arrived in 2009.
        Given the declining role of the Federal Government in
    funding water infrastructure, utilities like DC Water must
    account for all of our costs in the rates that we charge our
    customers. The price of clean and reliable water is increasing,
    and so is the need to replace aging infrastructure.
        I support full-cost accounting for water services that
    enables DC Water to fund our needs and enables our customers to
    make appropriate market choices on water use and conservation.
    I state this view with two reservations. First, as you well
    know, the District of Columbia is an urban area with a very
    high cost of living and a sizable low income population.
    Unfortunately, our affordability analysis demonstrates that
    many of our customers struggle to pay their water and sewer
    bills and will have even more challenges in the future. This
    scenario is all too familiar to most jurisdictions across the
    country.
        The practical consequences that many jurisdictions are not
    able to raise rates to cover their needs because of the
    limitations of their lowest income customers. With constrained
    income, utilities will nonetheless undertake mandated work,
    reducing focus on basic infrastructure investments. The
    condition of these assets then continues to deteriorate, and
    utilities risk falling into a downward spiral of poorer service
    and reduced support.
        Second, I am also concerned that the success of our
    Nation's water statutes pushes us to continue doing what we
    have always done, just more so, to a point of drastically
    declining benefits at the margin. DC Water faces enormous
    escalation of costs in reducing nutrient discharges. For the
    years 2000 to 2015, the capital cost to remove 1 pound of
    nitrogen has increased about 380 times. I believe there is
    agreement that Chesapeake Bay goals are well intentioned and
    deserving, but I also believe they could be met with a more
    flexible and holistic watershed approach that would include
    regulating non-point sources like runoff from suburban
    development and agriculture.
        I want to note that EPA has made progress in considering
    the fiscal impact of their regulations. Specifically, EPA's
    Integrated Planning Framework provides the flexibility to
    consider community affordability and financial capability when
    making Clean Water Act determinations.
        Additionally, EPA Region 3 recently negotiated DC Water to
    modify our $2.6 billion consent decree for combined sewer
    overflows. As part of these negotiations, EPA thoughtfully
    considered the economic burden of the previous 20-year
    construction timeline placed on our low income customers. The
    modified agreement extends the latter stages of the project,
    which allows us to spread out rate increases.
        I am confident that no one intends for regulatory
    requirements to feed into a cycle that generates poorer service
    and diminished support. I am also confident that a clear
    solution exists: a Federal assistance program for low income
    customers. An example of a similar assistance program exists in
    the long standing and long successful Federal program to
    subsidize heating assistance, the Low Income Heating and Energy
    Assistance Program. Providing an income based assistance
    program for water utility bills would help our poorest
    customers with this essential service, enabling water utilities
    to increase rates for other ratepayers who can afford to help
    invest in water services and infrastructure improvements.
        I commend the subcommittee for holding this hearing and
    bringing attention to the impact Federal regulations have on
    State, local, and tribal governments and ultimately to all
    residents of the great Nation we live in. A balance must be
    achieved between protecting the environment and protecting our
    most vulnerable from rising costs. These endeavors are not
    mutually exclusive, and we look forward to working with the
    subcommittee on these matters.
        I will welcome your questions. Thank you.
        [The prepared statement of Mr. Hawkins follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Rounds. Thank you, Mr. Hawkins.
        We will now hear from Professor Robert Glicksman.
        Professor Glicksman, you may begin.

    STATEMENT OF ROBERT GLICKSMAN, PROFESSOR OF ENVIRONMENTAL LAW,
                    THE GEORGE WASHINGTON UNIVERSITY

        Mr. Glicksman. Chairman Rounds, Ranking Member Markey, and
    members of the subcommittee, I appreciate the opportunity to
    testify on the importance of the Environmental Protection
    Agency's actions to protect health and the environment and on
    how regulatory procedures can impair the Agency's ability to
    perform that function.
        My written statement makes four points which I will
    summarize today.
        First, the environmental safeguards EPA has put in place
    have delivered enormous benefits to the American people.
    Second, these safeguards should be available to all Americans,
    regardless of location or income level. Third, a hobbled
    regulatory system undermines EPA's ability to carry out its
    statutory missions of protecting public health and
    environmental quality. And fourth, pending proposals to amend
    the Unfunded Mandates Reform Act would create duplicative
    requirements that would hinder EPA's ability to provide
    adequate health and environmental protection.
        Congress passed the Nation's key environmental laws during
    the 1970s by overwhelming bipartisan majorities. It formulated
    goals while delegating to EPA standard setting authority to
    achieve them. This approach has allowed EPA's technical and
    policy experts to determine how best to achieve desired health
    and environmental protection goals in a manner consistent with
    legislative direction.
        Congress also built these laws on a cooperative federalism
    framework, which allows the States to implement EPA's
    regulatory standards in ways that reflect State policy choices
    and accommodate local needs.
        Opinion polls consistently reflect the public's strong
    support for these laws, and for good reason: their successes
    are impressive. For example, by preventing exposure to
    dangerous air pollutants, the Clean Air Act saves thousands of
    lives and avoids hundreds of millions of lost work and school
    days each year. EPA regulations have reduced the incident of
    dangerous blood lead levels which can create cognitive
    impairment in children from 88 percent in 1976 to 0.8 percent
    in 2010.
        Because of the Clean Water Act, the percentage of surface
    waters meeting the Act's fishable, swimmable waters goal
    increased from between 30 to 40 percent in 1972 to as much as
    70 percent in 2007.
        These laws and regulations are not cost-free; they require
    those polluting the Nation's air and water to upgrade the
    technologies used to reduce pollution. But a 2015 report by the
    Office of Management and Budget, which performs a watchdog role
    over regulatory agencies, concluded that the benefits of the
    major EPA rules issued between 2004 and 2014 outweighed costs
    by a ratio of up to 20 to 1. It also found that the monetized
    benefits of EPA's Clean Air Act regulations alone accounted for
    up to 80 percent of all Federal regulatory benefits across all
    of the agencies examined in the report.
        As new threats to public health emerge due to technological
    and other changes, it is critical that EPA retain its authority
    to continue to provide these important protections.
        EPA is obliged by statute to provide the same minimum level
    of protection for everyone, regardless of their geographic
    circumstance or economic situation. Generally, subnational
    governments over the years have supported EPA's regulations.
    Some have even exercised the authority preserved to them under
    Federal law to adopt standards that are more protective than
    EPA's.
        On occasion, State and local policymakers failed to take
    adequate steps to protect their citizens. Consequences can be
    dramatic, as the recent drinking water crisis in Flint,
    Michigan, illustrates. One reason Congress chose to require EPA
    to deliver universally applicable minimum safeguards was to
    ensure that everyone, including the Nation's most vulnerable
    populations, enjoy basic public health protections.
        Some pending legislation, including bills that would amend
    the Unfunded Mandates Reform Act, would hamper EPA's ability to
    deliver that level of protection. EPA and other Federal
    agencies already must comply with procedural and analytical
    requirements, many of which duplicate each other, that make the
    process of adopting rules much lengthier than it has ever been.
    It can take years for EPA to adopt a single major rule. In the
    interim, the problems targeted by the rule continue to threaten
    public health and environmental quality.
        The proposed unfunded mandates amendments would aggravate
    the situation by imposing on agencies requirements that for the
    most part duplicate those that already exist under the
    Administrative Procedure Act, the Regulatory Flexibility Act,
    and Presidential executive orders. The bills express concern
    about duplicative regulations as a source of waste for
    businesses, but duplicative regulatory procedures have the same
    effect for governing.
        Delays resulting from an ossified regulatory process can
    harm interests across the board, including small businesses,
    States, localities, and tribes. The requirements that bills
    like H.R. 50 would impose on agencies would apply to repeal or
    modify rules that have become obsolete or that produce
    unjustified regulatory burdens as well to initial rule
    adoption. The Supreme Court has indicated the courts must
    review regulatory repeals with the same scrutiny as they do
    rule adoptions.
        While some provisions would not duplicate existing law,
    they would add little value to the regulatory process. H.R. 50,
    for example, would require agencies to assess the costs and
    benefits of regulatory action before issuing even a notice of
    proposed rulemaking. The point of the notice and comment
    rulemaking process is to solicit input from affected interests,
    including subnational governments, on whether the agency's
    initial take is adequately informed and reflects sound policy.
        It is hard to see how an agency can perform a meaningful
    cost-benefit analysis of a rule it has not even formulated in
    sufficient detail to be suitable for public comment. Costs of
    delayed protection resulting from this requirement, therefore,
    are unlikely to be offset by the benefits of an improved
    regulatory process.
        For 70 years, the Administrative Procedure Act has provided
    a process for adopting rules. That process balances the need
    for timely and responsive action by agencies whose duties are
    to protect the public interest with the benefits to inform
    regulation that result from public participation. The law is
    not perfect, but the reforms being considered would exacerbate
    its weaknesses, not cure them.
        I am happy to answer any questions you may have.
        [The prepared statement of Mr. Glicksman follows:]

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        Senator Rounds. Professor Glicksman, thank you very much
    for your testimony.
        Our next witness is Senator Mark Norris.
        Senator Norris, you may begin.

       STATEMENT OF HON. MARK NORRIS, MAJORITY LEADER, TENNESSEE
         SENATE, ON BEHALF OF THE COUNCIL OF STATE GOVERNMENTS

        Mr. Norris. Thank you, Chairman Rounds and Ranking Member
    Markey, and members of the committee. Thank you for the
    opportunity to testify today. I think it is very important that
    you are giving us this opportunity because one of the things
    that we are frustrated about at the State level these days is
    the lack of the opportunity to communicate in this way with our
    friends in the Federal Government.
        I am Mark Norris. I am the Senate Majority Leader from the
    State of Tennessee. I have the honor of serving the citizens of
    the 32rd district, which I mention because it is part of the
    west coast of Tennessee. We are along the Mississippi River,
    which means we deal with things like basin authorities and the
    Corps of Engineers, which brings relevance to me today for why
    I am here.
        In the interest of full disclosure, I should also mention
    that I am the Senate representative from Tennessee on the
    Southern States Energy Board, and I had the privilege of
    serving as the chairman of the Council of State Governments in
    2014, also known as CSG, and Chairman Rounds served as our
    president in 2010.
        So on behalf of CSG and State leaders throughout the
    country, we appreciate the opportunity to be heard. And I
    should also mention that CSG is the only organization of its
    kind that serves all three branches of government in all 50
    States, so we understand bipartisanship, and we understand the
    separation of powers.
        Last week in Tennessee we celebrated the 220th anniversary
    of our statehood. This is statehood week whereby Tennessee
    became the 16th State in the Nation. The act was signed by none
    other than President George Washington himself, and Thomas
    Jefferson commented on our constitution in Tennessee as the
    least imperfect and most republican of State constitutions. It
    provides that the citizens have the power and the right of
    exercising sovereignty so far as is consistent with the
    Constitution of the United States, recognizing the Articles of
    Confederation and the Bill of Rights.
        And I mention this at the outset because really what we are
    talking about here today is sort of the two Cs, as I hear them,
    not only the Constitution, but more effective communication
    under the Constitution.
        As Chairman Rounds would particularly understand, the
    States are the foundation of our Federal system as enshrined in
    the Tenth Amendment. This is the foundation upon which States
    develop innovative ideas and policies and often fulfill their
    roles as the laboratories of democracy. But all too often today
    we find that those laboratories are being interfered with.
    State-based innovation is increasingly adversely impacted by
    the growth of some of these Federal policies and regulations
    and rules that we have been talking about which often manifest
    in the form of unfunded mandates.
        We can talk perhaps in the Q&A portion of this, but
    Chairman Rounds mentioned the Clean Power Plan and the Clean
    Water Rule, both of which are being challenged by a number of
    States in Federal court. Interestingly, perhaps, Tennessee is
    not a party to the 111(d) legislation; it is a party to the
    waters of the State, the Clean Water rule litigation. And the
    difference is that the Federal Government, the EPA, and the
    particular departments and agencies involved in the 111(d) case
    gave us much more advanced notice, gave us much more
    opportunity to participate and be heard than was the case with
    the Clean Water Rule.
        Notwithstanding that, studies do show that Tennessee could
    experience electricity price increases of as much as 15 percent
    under the Clean Power Plan, and Tennesseans already spend an
    estimate average of 12 percent of their after tax income on
    energy, so the impact is disproportionately high.
        Along with the cost of financing these new unfunded
    mandates, the majority of Federal regulations have too often
    been enacted with insufficient input, if any, nor adequate
    consultation from State and local governments; and more often
    Federal agencies regularly process rules without even
    conducting an appropriate analysis of the potential economic
    costs as required by UMRA. This is what led, in part, to the
    formation of our federalism task force at CSG. My colleague,
    Alaska State Senator Gary Stevens, and I put forth a study over
    a period of 2 years to examine what we could do better to not
    only adopt a seat of principals that articulate a helpful
    vision, but how we would implement those.
        I have included in my submission a full list of the
    principals that we adopted, and they focus, generally speaking,
    on avoiding preemption, avoiding unfunded mandates, promoting
    State flexibility, promoting State input on international trade
    policy, and also focusing on civics; not only making sure that
    civics are being taught so that our next generation understands
    the nature of our government, federalism, how things work in
    our Republic, or should, but also make sure that we are
    teaching each other, as State legislators with
    responsibilities, about the rule of law and constitutionalism
    as it affects our daily responsibilities.
        It is this type of tension and the lack of constructive
    communication that has led to a number of initiatives, one of
    which is the adoption by eight States, including Tennessee, of
    the resolution calling for Congress to adopt the Regulation
    Freedom Amendment to the United States Constitution.
        In the past years, we have held a variety of meetings with
    the White House, Federal agencies, and Members of Congress on
    all of these issues, but all too often we feel as though we are
    incidental, rather than integral, to the process. In a word,
    folks feel the Federal Government simply doesn't care, and that
    is not constructive for anyone.
        So this brings me to an important point, which is that we
    need to take a closer look at what we call consultation with
    the States. Many of our State legislators, like me, are truly
    citizen legislators. It is sort of a full-time part-time job.
    But it is very difficult for us to keep up with the
    proliferation of rules and regulations, even for our
    departments to do so and communicate with us in a meaningful
    way.
        We are thankful for organizations like the Council of State
    Governments, which is our eyes and ears in Washington, but we
    also need to identify other real and concrete ways to improve
    the consultation process.
        In the past year, CSG has had the opportunity to chair the
    organization known as the Big 7, and under the leadership of
    CSG's Executive Director, David Adkins, the coalition also
    worked to identify recommendations on how to improve the State-
    Federal regulatory process. Those recommendations are also
    included in my materials.
        As you will see, they include updating UMRA, establishing
    consistent State-Federal advisory committees within Federal
    agencies, and simply ensuring State legislators know how to
    contact each Federal agency, who to contact it, and how to do
    it in a meaningful way. Navigating the relationship between
    State and Federal Governments is no easy task, but we are
    hopeful that we can take practical steps to improve our
    cooperation.
        In conclusion, Members, I want to stress the importance of
    establishing a process that ensures States are true partners in
    our Federal system and not just another stakeholder. I believe,
    with your leadership, we can take steps to improve the outreach
    and consultation between our States and the Federal Government.
        Thank you very much for the opportunity to appear before
    you today, and I look forward to your questions.
        [The prepared statement of Mr. Norris follows:]

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        Senator Rounds. Senator Norris, thank you very much for
    your testimony.
        We will now hear from our next witness, Commissioner
    Christian Leinbach.
        Commissioner Leinbach, you may begin.

     STATEMENT OF HON. CHRISTIAN LEINBACH, COMMISSION CHAIR, BERKS
    COUNTY, PENNSYLVANIA, ON BEHALF OF THE NATIONAL ASSOCIATION OF
                                COUNTIES

        Mr. Leinbach. Chairman Rounds, Ranking Member Markey, EPW
    Chair Inhofe, and distinguished members of the subcommittee, I
    am honored to testify today on the impacts of EPA regulations
    on State, local, and tribal governments. My name is Christian
    Leinbach, and I serve as Chairman of the Berks County Board of
    Commissioners in Pennsylvania, and today I am representing the
    National Association of Counties.
        While Berks County is considered urban, with a population
    close to 415,000, we have a diverse mix of urban, suburban, and
    rural communities. Manufacturing accounts for more than 30,000
    jobs in our county, and agriculture is our No. 1 industry.
        As a county commissioner, I have seen firsthand how our
    local communities, major employers, and important
    infrastructure projects have been directly and indirectly
    impacted by Federal environmental regulations, and today, as
    you continue to assess Federal regulations and their impact on
    State and local governments, I would like to share with you
    three key points for your consideration.
        First, this is important because counties and other local
    governments play a key role in the Federal regulatory process.
    Counties build, own, and maintain a significant portion of
    public safety infrastructure that may be regulated under
    Federal and State laws. This includes over 45 percent of
    America's roads and nearly 40 percent of all public bridges. We
    also own and maintain roadside ditches, flood control channels,
    storm water culverts and pipes, and MS4, just to name a few.
        But just as important as our infrastructure ownership, we
    share co-regulator responsibilities with Federal and State
    governments for a number of environmental programs, including
    the Clean Air Act and the Clean Water Act. So when EPA crafts
    new rules, their decisions have a direct impact on how we serve
    our residents at the local level.
        Second, the growing number of Federal regulations and
    mandates is significantly impacting counties and our residents.
    In recent years, the Federal Government has increasingly relied
    on State and local governments to shoulder implementation costs
    for more than just environmental programs. This has caused an
    imbalance at the local level since counties are limited in our
    ability to generate local revenue. In fact, more than 40 States
    limit our ability to collect sales, property tax, and/or other
    fees. These leave counties with a difficult choice: do we cut
    critical local services like law enforcement, fire protection,
    and emergency services or delay needed infrastructure projects?
    These choices have significant repercussions for our residents
    and businesses and affect the quality of life within our
    communities.
        Counties nationwide continue to be very concerned about
    EPA's water of the U.S. rule, the ozone rule, and risk
    management rule, which are quite complex and costly regulatory
    mandates that involve environmental compliance. These rules
    will extend Federal jurisdiction over a greater number of
    county projects and could compromise our ability to fulfill
    significant infrastructure construction, maintenance
    activities, and public safety responsibilities.
        Berks County has felt the effects of the growing number of
    EPA regulations over the past years. In fact, one of our
    largest coal-fired power plants shut down due to the NAAQS
    rules. Seventy-five employees lost their jobs, and these were
    quality jobs paying around $70,000 a year.
        Ultimately, counties support environmental protections and
    share many of the same goals as the Federal agencies. But we
    are concerned that the current rulemaking process does not take
    into account the true implications of these regulations.
        Finally, and most importantly, meaningful intergovernmental
    consultation will create greater clarity and increase the
    effectiveness of Federal regulations. Even though EPA has one
    of the strongest internal consultation requirements, it is
    inconsistently applied. Although waters of the U.S., ozone and
    risk management rule will have a major impact on county
    governments, we were not meaningfully consulted with, despite
    repeated requests.
        In conclusion, while we share many of the same goals as our
    Federal partners, the current consultation process must be
    strengthened. Counties, with our experience and expertise,
    stand ready to work with Congress to improve the Federal
    regulatory and consultation process.
        Thank you for the opportunity to testify today. I look
    forward to your questions.
        [The prepared statement of Mr. Leinbach follows:]

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        Senator Rounds. Commissioner Leinbach, thank you for your
    testimony.
        Our next witness is Chairman John Berrey.
        Chairman Berrey, you may begin.

               STATEMENT OF HON. JOHN BERREY, CHAIRMAN,
                        QUAPAW TRIBE OF OKLAHOMA

        Mr. Berrey. Thank you, and good afternoon, Chairman Rounds,
    Ranking Member Markey, and also Senator Inhofe and Senator
    Boozman. I appreciate the opportunity to speak to you today,
    and I am going to echo a lot of the same concerns these
    gentlemen have.
        I am the Chairman of the Quapaw Tribe of Oklahoma. We live
    in northeastern Oklahoma. We were the indigenous people of the
    State of Arkansas until the mid-1800s, when we were removed to
    Oklahoma, so we were across the river from our friend here from
    Tennessee.
        I have a prepared statement I have delivered to you, but I
    am just going to make a few points that I would like to point
    out, and hopefully you can understand better from the tribal
    perspective how a lot of these rules and regulatory mandates
    negatively impact the tribal governments and the Quapaw Tribe
    in particular.
        The Quapaw Tribe is a very progressive tribe. We are a
    self-governance tribe, which means that we do not rely as much
    as some tribes on the Bureau of Indian Affairs and the
    Department of the Interior. We take the funding, and we manage
    it ourselves, and we provide those programs that the Federal
    Government has for years provided us that we manage ourselves.
        But we are more than that. We provide emergency medical
    service, fire protection, and law enforcement not just for our
    Indian community, but for the local non-Indian community in our
    area. Ottawa County, Oklahoma, we provide the greatest fire
    protection of all of the local governments. In 2011, the Joplin
    tornado, the Quapaw Tribe provided the 911 emergency services
    for the city of Joplin for 5 weeks post-tornado. So we are very
    involved in the community, and our resources are spent in the
    community, but they are not just targeted strictly to Native
    Americans.
        So I would like to talk to you that my tribe doesn't have a
    tax base. That is part of being a tribe. We live on lands that
    aren't taxed because it is under Federal jurisdiction, and it
    makes it so our lands are not taxable. In some ways that is a
    benefit to the tribes, but in other ways it makes it very
    difficult for the tribe to develop an infrastructure to help
    develop our communities.
        This means, like all Indian tribes, we must create
    opportunities. We must create economic development to ensure
    that we can provide the needs for our local community. We have
    a casino thanks to the Indian Gaming Regulatory Act. But we are
    more than that. We are building a USDA-inspected meat and beef,
    bison, pork processing plant now that, if I was building it
    across the street on fee land, it would take me probably half
    the money and half the time. But because I am on Federal land,
    and I have to follow the Federal rules and the mandates by the
    EPA, it is taking me twice as long and is costing me twice as
    much. And we are going to provide jobs not only for Native
    Americans but for the local community. And we are going to
    provide a new source of meat cutters for the local grocery
    chains that are desperately looking for people to fill that
    trade.
        We have a heavy legal burden that is put on us because we
    are Native Americans, and we don't get the opportunity to
    consult with the EPA and other agencies, so it makes it very
    difficult for us to keep up with the rules and regulations that
    come down the pike. Every time that the Quapaw Tribe tries to
    incorporate our resources to develop economic opportunity for
    not only our people, but for the people of the local community.
        Earlier, Senator Markey spoke of the Tar Creek Superfund
    Site. That is 40 square miles within our tribal jurisdiction.
    It is a scar you can see from the moon. It is the result of
    heavy zinc and nickel mining that left a lot of contamination
    on the land. I believe if it wasn't for a lot of the
    regulations and the mandates by the EPA, we would probably be
    further along in the clean up than we are to date. Currently,
    the Quapaw Tribe is the contractor of choice for the State and
    for the EPA to do the removal of the contamination on the
    surface, but we are constantly facing new rules, new mandates
    that make it difficult for us to stay focused on doing what it
    is that we do to save the taxpayer money and get the work done.
        So we are constantly dealing with this Federal system of
    rules and regulations that impede us in our ability to work
    fast, gain financing, get projects going and get them completed
    to actually get something that creates more jobs, more economic
    development, and more opportunity.
        You can go across the country today, and you can fly at
    night, and you can see the reservations in the West purely
    because of regulatory mandates that tribes have difficulty
    meeting. The reservations are dark. You can go to North Dakota
    and you can spot the three affiliated reservations because it
    is dark, but everywhere around it is lit up as they are
    fracking and they are creating economic development using those
    resources that are there underground. But because it is so
    difficult for tribes under these rules, it is very visible at
    night because there is little activity.
        It is happening in Navajo, it is happening at Crow because
    of the coal rules. It has killed jobs, it has killed hope, and
    it has killed opportunity for so many Native Americans in those
    regions. These are places where people freeze to death in the
    winter. These people are hungry. They are rural, they are
    isolated, and they have very little opportunity. And when we
    create rules and regulations without consulting with the local
    community, we never really understand the impacts it has on
    those people until they are already on the books and the saw
    mills close, the coal fields shut down, and then the people
    begin to starve.
        So what we want, we are hoping for, and why we are very
    grateful for this opportunity is we want true consultation, we
    want true communication, and we want collaboration. We believe
    that we know what is best for our people. Native Americans
    don't want to trash the rivers. We don't want to trash the air.
    We don't want to make the world a worse place for our
    grandchildren. But we believe that we have the insight and the
    respect for Mother Nature that is necessary to come up with
    rules and regulations that we can fund and that will make the
    world a safer and better place instead of creating confusion
    and stagnation based on new rules that come out without any
    thought put into it with the local community.
        So on behalf of the Quapaw Tribe and all Native America, I
    want to thank you, Senator Rounds, Senator Inhofe, and you too,
    Senators Boozman and Markey for the work you do for Native
    Americans. I know you are trying to work in other venues to
    help the Indian people across this country, and we are very
    grateful for that. I am grateful for this opportunity today,
    and I look forward to any questions.
        If you want to come out and really see where these mandates
    that are unfunded has created havoc, come to the Quapaw
    Reservation and come see the Tar Creek Superfund site, which,
    for 30 years, we have been battling this. They have spent
    millions and millions of dollars, but you can't really see what
    has changed except what we have worked with with Senator
    Inhofe, who we have been able to get through by beating up the
    EPA and making the things work.
        [The prepared statement of Mr. Berrey follows:]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Rounds. Chairman Berrey, thank you for your
    testimony.
        I would note at this time that, without objection, the
    written testimony of all of the witnesses will be included for
    the record.
        Senators will now each have 5 minutes for questions, and I
    will begin.
        Let me start with Senator Norris. Senator Norris, you were
    involved in an effort by the Council of State Governments to
    improve the role of States in the Federal process. Can you
    share with us some suggestions you have that could improve the
    Federal regulatory process through increased State
    participation?
        Mr. Norris. Thank you, Chairman Rounds. A couple of those
    that are enumerated in the materials we have submitted include
    these that come first to mind.
        First, establishing State and local government advisory
    committees within Federal agencies. Not to add to
    bureaucracies, but absent what we used to have, the Advisory
    Commission on Intergovernmental Relations, ACIR, there really
    isn't anything equivalent to that today that is consistent
    through the Federal agencies, and we think that perhaps
    establishing a State and local advisory committee, something
    like that but perhaps a new generation, something different,
    within each Federal agency could help to ensure that there is
    consistent input and consultation and analysis of these
    proposed rules.
        In Tennessee we have the Tennessee Advisory Commission on
    Intergovernmental Relations, which I chair, and have for a
    number of years, and it becomes a pretty effective think tank
    as well as a roundhouse, if you will, for communicating with
    our stakeholders, the county governments, local governments,
    and other State agencies.
        Another idea is to develop an annual or perhaps a biannual
    session between agency staff and association staff. This would
    allow all groups to make introductions and facilitate dialogue,
    including with both political and career Federal agency staffs.
    Also, to exchange rosters of key contacts between senior agency
    officials, including career and political employees responsible
    for writing regulations. Again, this isn't rocket science, it
    is not earth shattering, but it is sort of common sense changes
    that can be made at the administrative level to really
    effectuate more effective communication across all these
    levels.
        Those would be just two ideas, Chairman Rounds.
        Senator Rounds. Thank you.
        Commissioner Leinbach, States and counties are not only
    responsible for administering State and Federal regulations,
    but they also must provide other critical services to citizens,
    such as waste management, law enforcement, emergency services,
    and education. How has the recent barrage of EPA regulations
    impacted counties' ability to provide these vital services to
    American families?
        Mr. Leinbach. Looking at Berks County as an example, we
    have had to deal with the issue of waters of the U.S. and the
    potential impact on costs for counties, the implementation of
    roads. If you look across the country, 45 percent of roads in
    America are owned and maintained by counties. We believe it is
    imperative that counties be brought into the process in the
    very beginning.
        In Berks County we noted, and I have more details in my
    formal testimony, that we lost 70 jobs with our largest power
    supplier, and that was the Titus Station Generating Plant.
    Through the lead attainment standards several years ago, our
    largest employer, East Penn Manufacturing, over 7,000
    employees, they were already meeting the new lead attainment
    standard for a year and a half. They had a year and a half of
    data.
        They came to the county and asked for help because they
    were notified that EPA was requiring 3 years of data. And in
    spite of our pleas to the EPA not to put that part of our
    county in non-attainment, they were placed in non-attainment.
    That meant that our largest employer during that period of time
    was not able to expand, and we were not able to attract
    manufacturing businesses to that region of the county. That has
    a direct impact economically.
        If you look at county government, we are concerned about
    the same issues that the Federal Government is concerned about.
    No. 1, we believe in clean water, we believe in clean air, and
    public safety, No. 2, is our No. 1 job. The 911 services,
    police, fire, rescue, and those are costs we have to absorb.
    When we are challenged with the cost of regulations, those
    other areas often suffer.
        Senator Rounds. Thank you, sir.
        My time has expired.
        Senator Markey.
        Senator Markey. Thank you, Mr. Chairman, very much.
        Mr. Norris's testimony, Mr. Glicksman, cites a report that
    lists the costs of Federal mandates as being between $57
    billion and $85 billion every single year. But that very same
    report estimates the benefits of regulations to be between $68
    billion and $103 billion per year.
        Professor Glicksman, do you agree that environmental
    regulation often produces more net benefits than the costs?
        Mr. Glicksman. I do. And the OMB report from 2015 that I
    cited provides ranges of estimates of environmental benefits,
    environmental costs for various EPA regulations. The report in
    all cases provides estimates in which the upper estimate of
    regulatory cost is lower than the lowest estimate of regulatory
    benefit. So even in a worst case scenario EPA regulations are
    providing significantly greater benefits than the costs they
    impose.
        Senator Markey. Let me just stop there for 1 second. Let me
    just ask the next question, which is that EPA regulations have
    helped to protect wetlands and reduce lead in gasoline, making
    sure our drinking water is safe to drink and saves thousands of
    lives by reducing air pollution.
        Do any of you disagree that EPA regulations have made
    people healthier and improved our environment?
        Mr. Leinbach. Senator Markey, I do not disagree. In fact,
    we believe, as counties, that our objective of clean air and
    clean water is consistent. And our issue is not with the desire
    for clean water.
        Senator Markey. OK, I understand. That is the question.
        Well, the situation in Flint, Michigan, has been a recent
    reminder that Americans look to the government to ensure that
    the water they drink is safe. Does anyone disagree that
    providing safe drinking water to everyone is an essential
    service that we must provide to every American?
        [Affirmative nods.]
        Senator Markey. Well, let me then move on. Experts say $1
    trillion is needed to upgrade drinking and clean water
    infrastructure and prevent future Flints. Congress provided not
    $1 trillion, but a mere $1 billion each in fiscal year 2016 for
    drinking water and clean water State revolving funds.
        Would you all support increased funding for communities to
    meet the public health standards established under the Safe
    Drinking Water Act and the Clean Water Act?
        Mr. Berrey. Well, I believe I would as long as they reduce
    some of the regulatory burdens that they have added to it that
    add the costs at the end of the day don't complete the project.
        Senator Markey. But would you support Congress
    appropriating $1 trillion to help the tribes and help the
    cities and towns and counties to deal with the issues?
        Mr. Berrey. As long as it came along with a reduction with
    unnecessary regulatory involvement that doesn't come with
    consultation with the tribes.
        Senator Markey. So you wouldn't want the money if the
    regulations didn't go away.
        Mr. Berrey. I would want the money, but I would want to be
    able to get a dollar for dollar for all the work that I put
    into it.
        Senator Markey. I appreciate that.
        From the District of Columbia, would you want that extra
    money?
        Mr. Hawkins. Just to give a sense of perspective, of the $1
    billion appropriated for the revolving funds, DC Water's
    capital budget alone is $600 million.
        Senator Markey. That is what I am saying. Thank you. So $1
    trillion is what experts say is needed to help DC and to help
    all the other counties.
        Mr. Hawkins. It would be the single best investment in our
    economy.
        Senator Markey. I agree with you. We should not have kids
    not having safe drinking water.
        The Clean Water Act ensures pollution is kept at a safe
    level in our water system. Does anyone disagree that
    tributaries that provide drinking water should be protected
    from the dumping of dangerous substances that harm public
    health and environment?
        Mr. Norris. Senator Markey, how would you define
    tributaries? Because that is a case in point. That is one of
    the things we are struggling with at State and local levels
    now. Your definition of tributary may differ from ours. You
    know, a cow path from my barnyard out to the pasture does not a
    tributary make. However, some regulators would disagree. And
    that is how we are at loggerheads with one another.
        Senator Markey. Well, again, we have an issue that if in
    fact any of these entities are dumping dangerous chemicals into
    that tributary, then ultimately some child somewhere downstream
    is going to be drinking it. So you have this real conundrum,
    don't you? You want to protect young people from drinking
    water, especially in their formative years, and so it is a very
    profound question that allows somebody just to say, well, I am
    small, so I should be able to dump dangerous chemicals into the
    water. And that is fine for that one entity, but what about for
    all of the children who then have that chemical in their water
    as they are drinking it and as their brains are still being
    formed?
        So I thank you, Mr. Chairman.
        Mr. Leinbach. Senator Markey, one of the problems is the
    definition in Waters of the U.S. of a tributary, and it says,
    ``a tributary can be a natural, man-altered, manmade water and
    includes waters such as rivers, streams, canals, and ditches.''
        Our challenge as commissioners, ditches are the areas along
    the side of a roadway which historically have not been
    regulated by EPA and Army Corps. Our challenge is not with
    clean water; our challenge is with the ambiguity of the rule
    itself. Most people would think a tributary is some type of
    body of water, but by its own definition it includes ditches in
    tributary, and that is problematic.
        Senator Markey. And again, I appreciate what you are
    saying, but a ditch used by a nefarious character can just be
    pouring huge amounts of dangerously laced water that has
    chemicals in it into the water. So one person's ditch is
    another person's tributary, especially if it is a bad person,
    and that is what we found in the Woburn Hazardous Waste Site in
    my congressional district.
        They were just dumping all this stuff into the groundwater,
    and that is why all these boys and girls wound up with leukemia
    up there. They were just using it as a place dumping these
    dangerous chemicals, and they did it as secret dumpers at
    night, just unloading it right into the water table; and to a
    certain extent that is what illuminated my attitude toward this
    from the late 1970s on and the creation of Superfund.
        And I would say, Chairman Berrey, that it is critical that
    we do fund Superfunds so that you have the funding that you
    need, but beginning in 1995, as soon as the Democrats lost
    power, there was a defunding of the taxes that the oil
    companies and the chemical companies had to pay into Superfund,
    which would have helped you with your problems.
        Thank you.
        Senator Rounds. As I move to Senator Inhofe, I just think
    part of the challenge here that we are seeing and that I think
    this brings out is that you have counties, who clearly are not
    bad actors, who have ditches that they are responsible for
    maintaining, and yet now they find themselves, under WOTUS,
    having to comply with new regulations that they did not have to
    comply with before, and it is adding to their costs. I think
    that is the point that I was hearing. It is good to have that
    discussion come up.
        Senator Inhofe.
        Senator Inhofe. I think, Mr. Leinbach and Mr. Norris, you
    ought to come out to Oklahoma and talk to our farmers. Tom
    Buchanan, who is the President of the Oklahoma Farm Bureau,
    says, and he is on record saying of all of the problems that
    farmers and ranchers, and we are a farm and ranch State, are
    facing, the worst is nothing that is found in the ag bill, it
    is the overregulation by the EPA.
        And of all the overregulation by the EPA, they say that the
    WOTUS, those regulations scare them the most because you don't
    know. They have different people out there making their
    decisions as to what is good, what is a bar ditch, what is
    something that only has temporary water after a storm. This is
    what I am concerned about.
        Chairman Berrey, tribes have different problems than the
    rest of the people at this table. Do you want to elaborate on
    any of those that are different because of the tribal
    application?
        Mr. Berrey. Well, I think that the real conundrum for
    tribes is some tribes, like the Quapaw Tribe, are
    sophisticated, and we are, with our resources, able to get a
    lot of intellectual help to develop our community. And we
    think, with consultation, if people at EPA would listen to us,
    we could get things done.
        I think my fears are there are rural tribes out there that
    don't have the economic development that we have and the
    opportunities that we have, that they need added sort of
    capacity development to help them develop the regulatory and
    the infrastructure to manage their environment.
        So, fortunately for us, we are very educated about it
    because we are in a Superfund site. But I don't think the
    problem with Superfund is just the lack of funding. A lot of it
    has been the management by the EPA in the clean up since it was
    identified as a Superfund site. They should have sat and talked
    to us a little bit, and we could have saved them about half the
    money they have wasted.
        Senator Inhofe. You know, you and I were both there when
    that happened, and it was a mess.
        Mr. Berrey. Yes, sir.
        Senator Inhofe. Senator Norris, it is interesting. You and
    I have a lot of things in common. I also was the chairman of
    the Oklahoma State Senate. You mentioned the ACIR. I haven't
    heard anyone mention the ACIR, I bet, in 20 years. And 35 years
    ago Lamar Alexander was then Governor of Tennessee. He
    represented the Governors; I represent the mayors.
        And then, of course, you had a representative of every
    political level. And it didn't occur to me until you said that
    that maybe that does have some application here. I mean, if you
    get together, you have the mayors and the Governors and the
    county commissioners and the State legislators, and
    representatives from here, that is a pretty good idea.
        Mr. Norris. Well, thank you, Senator Inhofe. I spoke with
    Senator Alexander several years ago, when this idea began
    percolating, and of course we both share the concern that I
    think was primarily responsible for the sunset of ACIR in the
    early 1990s, and that is as it relates to cost. Apparently it
    was an expensive organization, and there was bureaucracy
    associated with it that he and I would eschew. We are not
    looking to create another department; we are not looking to
    spend a lot of money. But again, I keep using the term common
    sense, and I am glad you picked up on it because there is some
    variation on what used to be ACIR that it seems to me would be
    an effective forum.
        Senator Rounds. What is ACIR again?
        Mr. Norris. The Advisory Commission on Intergovernmental
    Relations. And if I remember correctly, I believe it was in
    1994 or thereabouts that it sunset, as we say in State
    government. And I get that. We don't want to create a new
    bureaucracy, but we need a forum that is recognizable and that
    is recognized where we can exchange these ideas and have better
    results.
        Senator Inhofe. Well, I do want to pursue that with you. I
    think the idea is good. And I want to find out why that was so
    expensive and bureaucratic because, frankly, I don't agree with
    that. We had the periodic meetings.
        Anyway, I do want to get one question in here because we
    recently had Administrator McCarthy, who said that she was
    unaware of any instances, and this will be for you, Mr.
    Leinbach, unaware of any instances where the EPA actions have
    negatively impacted jobs. That was her statement. That is a
    quote.
        When asked about the statement before this committee,
    sitting right here, McCarthy essentially said companies use EPA
    as an excuse.
        Let's start with you and your response to that.
        Mr. Leinbach. First of all, we have had direct experience
    in our own county and counties across the county, and counties
    across the country have experienced the same thing, that there
    absolutely are impacts. I need to emphasize again, as Senator
    Markey made, I think, legitimate points that EPA has played a
    critical role in cleaning up our environment over the last
    number of decades. We are not against the rules. We are
    concerned about the process. And there is an idea of
    federalism, that Federal Government, State government, and
    local governments ought to work together.
        We are not a stakeholder just like anybody else; we are in
    a unique intergovernmental relationship. And counties have
    people on the ground, our engineers, our county planners,
    people that know what needs to be done; and unfortunately, we
    are brought into the process very late in the game and are not
    able to have the impact on the rules. And Waters of the U.S. is
    a great example, and the recent ozone rules. Virtually no say.
    We are part of the partnership, and all we are asking is for
    that partnership to be brought back together.
        Senator Inhofe. Now, of course, we are concerned about
    ozone, too. All these things come within this Environment and
    Public Works Committee.
        Mr. Leinbach. That is correct.
        Senator Inhofe. And that has such an effect on the lives of
    everyone, particularly everyone out there who is in business.
        Under the ozone, of course, that is done by counties, and
    there is legislation that Senator Thune I think is the primary
    mover of the legislation would say we are not going to have any
    more reductions in the ozone until 85 percent or something of
    the counties comply with the old.
        Do you think that is reasonable?
        Mr. Leinbach. That is the position of the National
    Association of Counties, that we should not be imposing new
    ozone regulations until the 2008 standard is met. And I would
    add I have been elected by counties in the northeast United
    States to represent them, and this is an issue we have
    discussed in one of our monthly conference calls, because an
    ozone in the northeast counties, we are unduly impacted by
    prevailing winds. So how is it that we are going to be held
    accountable from a standard when prevailing winds are one of
    the major factors, and we have no control what is happening
    upstream?
        Senator Inhofe. Well, let me ask you again to respond to
    this statement that she made before this committee. I know my
    time has expired, but let me at least get this in.
        Unaware of any instances where the EPA actions have
    negatively impacted jobs.
        Mr. Norris. Senator Inhofe, if I may be recognized. I would
    invite her to Erwin, Tennessee, the tiny town that was home to
    CSX Rail, which just late last year had to shut down its
    operations because of what we call the war on coal, and 300
    jobs were lost overnight. There aren't that many folks in
    Erwin, Tennessee, but I have been over there to talk with them,
    and now we are trying to find ways to retrain them and re-
    educate them to get them back to work.
        And I give that example because here we are in Washington,
    DC, and I know we talk in terms of hundreds of thousands of
    jobs. But in a town like Erwin, when 300 people go out because
    of the loss of coal, it hurts; and that is a pretty good
    example.
        Senator Inhofe. Excellent example.
        Senator Rounds. Thank you.
        It would appear to me, as we listen to the witnesses, that
    there is a sense that everybody wants good environmental rules;
    everybody wants good environmental regulations. The challenge
    sometimes is to find that middle ground where we have the
    Federal Government looking perhaps not down at, as you may
    suggest, subnational governments but rather States, counties,
    and municipalities for their input in terms of true
    consultation. And that is kind of what I take away from this
    today, is the desire for true consultation.
        Reasonable people can have clean water and clean air and
    still do it in such a fashion that you have consensus that you
    build at the local level as well, and I suspect that that
    should be our goal and that perhaps we are not doing the best
    job of getting that done in the regulatory processes that we do
    today that could be improved upon.
        Before I close today, I would like to ask unanimous consent
    to enter a letter from the U.S. Conference of Mayors regarding
    a listing of multiple unfunded mandates that have been imposed
    on State, local, and tribal governments into the record.
        Without objection.
        [The referenced letter was not received at time of print.]
        Senator Rounds. With that, once again, I would like to
    thank our witnesses for taking the time to be with us today,
    and I would also like to thank my colleagues who have attended
    this hearing for their thoughts and questions.
        The record will be open for 2 weeks, which brings us to
    Tuesday, June 21st.
        Senator Markey, thank you for your participation and
    discussion as well today.
        And with that this hearing is adjourned.
        [Whereupon, at 3:47 p.m. the subcommittee was adjourned.]

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