[Senate Hearing 115-909]
[From the U.S. Government Publishing Office]
S. Hrg. 115-909
HEARING ON A REVIEW OF THE
TECHNICAL, SCIENTIFIC, AND
LEGAL BASIS OF THE WOTUS RULE
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HEARING
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH
FIRST SESSION
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APRIL 26, 2017
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Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
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U.S. GOVERMENT PUBLISHING OFFICE
63-351 PDF WASHINGTON : 2026
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
JOHN BOOZMAN, Arkansas BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi SHELDON WHITEHOUSE, Rhode Island
DEB FISCHER, Nebraska JEFF MERKLEY, Oregon
JERRY MORAN, Kansas KIRSTEN GILLIBRAND, New York
MIKE ROUNDS, South Dakota CORY A. BOOKER, New Jersey
JONI ERNST, Iowa EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska TAMMY DUCKWORTH, Illinois
RICHARD SHELBY, Alabama KAMALA HARRIS, California
Richard M. Russell, Majority Staff Director
Gabrielle Batkin, Minority Staff Director
C O N T E N T S
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Page
APRIL 26, 2017
OPENING STATEMENTS
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 3
WITNESSES
Peabody, Major General John (Ret.)............................... 14
Prepared statement........................................... 16
Josselyn, Michael, Ph.D., PWS, Principal, Wetlands Research
Associates..................................................... 29
Prepared statement........................................... 31
Tseytlin, Misha, Solicitor General, State of Wisconsin........... 42
Prepared statement........................................... 44
Kopocis, Ken, Associate Professor, American University Washington
College of Law................................................. 234
Prepared statement........................................... 237
O'Mara, Collin, President & Chief Executive Officer, National
Wildlife Federation............................................ 248
Prepared statement........................................... 251
ADDITIONAL MATERIAL
Letters to Senator Barrasso and Senator Carper from:
Southern Environmental Law Center............................ 6
Clean Water Action........................................... 9
National Parks Conservation Association...................... 11
Statement from American Road & Transportation Builders
Association.................................................... 333
Letter to Senator Duckworth and Senator Gillibrand from Healing
Our Waters-Great Lakes Coalition............................... 345
Letter to Senator Barrasso and Senator Carper from American
Rivers......................................................... 357
HEARING ON A REVIEW OF THE TECHNICAL, SCIENTIFIC, AND LEGAL BASIS OF
THE WOTUS RULE
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WEDNESDAY, APRIL 26, 2017
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10:19 a.m. in
room 406, Dirksen Senate Office Building, Hon. John Barrasso
(chairman of the committee) presiding.
Present: Senators Barrasso, Carper, Inhofe, Fischer,
Rounds, Ernst, Sullivan, Cardin, Whitehouse, Gillibrand,
Booker, Duckworth, and Harris.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Good morning. I call this hearing to
order.
On February 28th, President Trump signed an Executive Order
directing EPA and the Army Corps of Engineers to review the
Obama administration's Waters of the United States, or WOTUS
Rule, and to publish a proposed rule that would rescind or
revise that rule. While this action was both correct and
important, the long saga of the WOTUS Rule is not yet over.
This fundamentally flawed rule is still on the books and needs
to be withdrawn.
The Supreme Court has decided to rule on whether or not
circuit courts have the jurisdiction to hear challenges to the
Rule. If the Supreme Court decides that these cases belong in
district courts, then the nationwide stay that the Sixth
Circuit Court of Appeals issued will go away.
If that happens, this Rule, that is terrible and unlawful,
will go into effect and the EPA and the Corps will be able to
regulate isolated ponds and dry streambeds that have no impact
on navigable water and were never intended to be covered under
the Clean Water Act.
As we will hear from our witnesses today, the justification
for withdrawing the Rule is overwhelming. General Peabody is a
decorated retired member of the military who was the Commanding
General for the Civil and Emergency Operations at the Corps of
Engineers until he retired in the fall of 2015. He will tell us
that the definitions in the WOTUS Rule are not based on the
Corps' expertise and experience. In fact, the Corps was shut
out of the process of writing the final Rule and the support
documents for the final Rule.
The Corps is the agency that performs the on-the-ground
inspections that identify what water is federally regulated. If
the Rule is not based on their experience, that means it has no
technical basis; it is, instead, a blatant government power
grab.
Dr. Josselyn is a Ph.D. and a professional wetlands
scientist who was a member of the Science Advisory Board Panel
that was put together by the EPA that reviewed EPA's ``Science
Report.'' This report is a scientific literature review on
water connectivity.
The Obama EPA claimed that the WOTUS Rule is based on the
conclusions of this report. Dr. Josselyn will tell us that, in
fact, this report does not address the issue of where Federal
regulators should establish jurisdiction.
EPA Science Report looks at connections to water, but fails
to examine whether connections are significant, and most of the
studies in the report do not address navigable water. Instead,
this report concludes that all water is connected. Our children
learn that in fourth grade when they learn about the water
cycle. That has nothing to do with Federal jurisdiction, and it
means that the EPA's Science Report can not be used to justify
the WOTUS Rule.
Mr. Tseytlin is the Solicitor General for the State of
Wisconsin and he works with the 31 States that are all
challenging the WOTUS Rule. Mr. Tseytlin will tell us that the
final rule included new definitions that were created without
public input and even without public notice. This means that
the WOTUS Rule is arbitrary and capricious, and violates the
Administrative Procedure Act.
We also will hear from Mr. Kopocis. He was the Deputy
Assistant Administrator for the Office of Water in the Obama
administration. He will tell us that the Obama administration
met with States and other stakeholders during the rulemaking
process. That does not change the fact that between the
proposed Rule and the final Rule the Corps was arbitrarily or
deliberately shut out of the process. The end result is the
Obama administration wrote a RULE that is not supported by
agency expertise, by agency experience, or by the science or
the law.
Finally, we will hear from Mr. O'Mara, who is President and
Chief Executive Officer of the National Wildlife Federation.
The National Wildlife Federation is very interested in
protecting wildlife habitat. The right way to do this is to
form partnerships with landowners, not to expand Federal
control over private property. In fact, in 2014, the Fish and
Wildlife Service issued a report that notes that the Service
works with landowners to employ cooperative conservation
measures to preserve isolated wetlands like prairie potholes,
measures that let farming continue.
If the WOTUS Rule goes into effect, instead of working
cooperatively, the Federal Government could simply take control
of private land and shut down farming activity. We have already
had attempts to do this in my home State of Wyoming, where Mr.
Andy Johnson, who EPA threatened to fine $37,500 a day for
simply building a stock pond on his property.
After looking at this record, the only course of action
that makes sense is to withdraw the Rule and start over. I hope
we can see quick action to lift this threat to farmers and
other landowners that have been created as a result of the
WOTUS Rule.
I now turn to Ranking Member Carper for his testimony.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thanks, Mr. Chairman. Thanks for bringing
us all together.
I spoke with the witnesses before we began and I said, this
is an issue, as you are going to hear from the Chairman's
opening remarks, that brings out strong feelings on several
sides. One of the things that I hope might happen here today is
that the panel this diverse and this smart could actually help
provide some consistency and maybe some consensus before we
walk out of the room, so thank you all for joining us.
This hearing also represents a valuable opportunity to
consider the critical elements of any sound rulemaking to
address the definition of water that receives Federal
protection, including rulemaking that would be required to
rescind the rule that we are considering today. Fortunately, we
have a panel of experts to help us sort through the nuance of
law and science. We welcome all of you very much, appreciate
your contributions to our discussion. Before we dive into the
details, though, I would like to step back just a little bit
and recall how we got to this point with the definition of
waters of the U.S.
You will recall that the passage of the Clean Water Act was
a product of horrific water quality in many parts of the
Country. I went to Ohio State University, and just north of us,
in Cleveland, there is a river flowing through Cleveland that
caught on fire. It was not just the Cuyahoga River that was
contaminated, there were a lot of others as well. Frankly,
there still are too many. There was broad, national concern
over the State of our waters then, and there was consensus that
we needed to do something comprehensive to fix the problem.
Congress was not confused or uncertain about what it was
seeking to protect when it passed the Clean Water Act in 1972.
The first sentence of that Act passed in 1972 says this: ``The
objective of this chapter is to restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters.'' That is what it says. When Congress reported out that
legislation, this Committee acknowledged that ``it is essential
that discharges of pollution be controlled at the source. At
the source. The Act defined the term ``navigable waters''
broadly, as ``all the waters of the United States.'' Congress
clearly understood that cleaning up our waters involved
controlling pollution discharges in a lot of places where ships
do not go.
While broad, the coverage of the Act was clear. While
demanding on cities and industries, farmers, ranchers, and
developers, the benefits of the Act were dramatic. More than 60
percent of the lakes and 55 percent of the rivers were able to
achieve the Act's water quality goals of being fishable and
swimmable by the year 2003.
I believe that all of us understand that protecting
wetlands and reducing pollution requires active participation
from farmers and ranchers. They live closest to our land and to
our waters, and they have every reason to be good stewards of
these resources; and for the most part they are, really good
stewards in most cases. Indeed, that is one reason why farmers
in my State of Delaware celebrate their investments in, and
successes of, no-till farming and all other kinds of
conservation measures that I will not get into today.
While those farmers love their land, traditional farming
practices often ended up sending some of their best soils down
a ditch or maybe away with the breezes on a windy day. Their
land was eroding from under their feet. Then science showed
them a better way. They were not blinded by science; they were
guided by science. Their commitment to the land and their
livelihoods allowed them to embrace new practices that preserve
their future and a foundation of rural life and the economy. I
think we need that sort of agreement for clean water, along
with a commitment to make this collective effort as
predictable, simple, and inexpensive as possible.
No one was pleased with the confusion, uncertainty, and
burdensome bureaucratic processes resulting from the Supreme
Court's decision in the 2001 SWANCC case and 2006 Rapanos case.
Without the Clean Water Rule, though, EPA and the Corps of
Engineers would have to undertake a burdensome, time-consuming,
expensive, unpredictable, and confusing process to determine
what is covered by the Clean Water Act and what is not. That is
no way to do business, which is exactly why there was broad and
diverse interest in having both the EPA and the Corps develop
clear guidance, through regulation, to cut through the morass.
That, I believe, is the motivation behind, and I think the
result of, the Clean Water Rule.
If I were to take on that very important task, here are
some things that I would want to focus on: I would analyze all
the peer-reviewed science I could get my hands on; I would host
hundreds of public meetings across our Country; I would ensure
that all who wish could have their say; I would review a
million comments, if I had to; and I would consult with the
States, with affected industries, with farmers, with fishermen,
and the best water minds around. That is exactly what went into
developing the Clean Water Rule that we are discussing today.
To tell you the truth, I do not believe that I have ever
met anyone who thinks the Rule is perfect. I do not, and I have
not met anyone who thinks that it is. It is too hot for some,
too cold for others, but it will protect the water we all need.
The Rule has been a long time coming, as you know. It is
well informed by science and by experience, it treads a
moderate line between the extreme desires of interests at both
ends, and it is the product of a massive public engagement
effort. I would ask this Administration and detractors of this
approach to show us your work. Just show us your work. Give the
rest of us the same rigor, the thoughtfulness, the engagement,
the transparency, and science that underlies this effort, and
show us, with the same degree of dedication to the task, to the
law, and to our health and environment, that you have something
better to offer. Otherwise, I am afraid that you risk, you
being the Administration, risk failing all of our people and
spending an awful lot of time and taxpayer money subsequently
in court. This Rule has all the basis in law, has technical
merit, and the science that it needs.
Thank you, Mr. Chairman. I would ask unanimous consent, if
I could, to insert into this hearing record letters that I
received from The Southern Environmental Law Center and Clean
Water Action supporting the Clean Water Rule. Thanks so much.
Senator Barrasso. Without objection, those are admitted to
the record.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you very much, Senator Carper.
We will now hear from our witnesses. I would like to remind
the witnesses that your full written testimony will be made
part of the official record today. I please ask that you keep
your statements to 5 minutes so that we may have some time for
questioning. I look forward to hearing the testimony of each
and every one of you, and I would ask Major General John
Peabody to begin.
Thank you so much for being here.
STATEMENT OF MAJOR GENERAL JOHN PEABODY (RET.)
General Peabody. Thank you, Mr. Chairman, Mr. Ranking
Member. I appreciate the invitation to appear here today.
I am testifying based on my personal knowledge related to
the Waters of the United States, or Clean Water rulemaking,
while serving as the Deputy Commanding General for Civil and
Emergency Operations in the Army Corps of Engineers from
October 2013 through August 2015. I retired 20 months ago, so I
am testifying as a private citizen who does not speak today for
the Corps in any way. However, my testimony reflects my best
recollection of this rulemaking process and the professional
advice I received from Corps experts during that period.
The Corps is the primary agency responsible for
administering Section 404 of the Clean Water Act through more
than 1,200 Corps regulators who process over 99 percent of all
Section 404 actions in this Country, consisting of tens of
thousands of regulatory actions each year. Contrary to common
belief, the vast majority of all applications, about 80
percent, receive a decision within 60 days from receipt of a
policy-compliant application.
Corps professionals are the face to the public regarding
this program across many different circumstances involving a
complex array of multiple environmental and administrative
laws, policies, and procedures. In my opinion, the Corps' 40-
plus years of experience involving over 2 million actions--that
is my estimate--make it the best organization to advise
policymakers on what should constitute waters of the United
States.
Beginning in November 2014 and continuing through the
Rule's finalization in May 2015, Corps involvement in the
rulemaking was limited to a few engagements primarily regarding
discreet aspects of draft Rule language. In that period, the
Corps did not regularly or substantially participate in draft
final Rule changes as they occurred, was excluded from routine
Rule text development and policy discussions, had little direct
engagement with EPA counterparts, and was only engaged by those
developing the Rule on a periodic and constrained basis.
I do not consider the Corps to have been a member of a
collaborative and substantive joint process that included
serious consideration of Corps concerns and recommendations. On
the contrary, in my opinion, Corps involvement was superficial
during that period.
Despite this, Corps staff made every effort to propose
options that would address policy considerations and ways that
met central characteristics: that it be one, scientifically
based, two, technically implementable, and three, legally
defensible. These three criteria, and the duty to ensure
policymakers clearly understood the implications of the Rule
language, were the only motivation behind my personal actions.
The Corps' key concerns centered on new definitions, terms,
and approaches in the draft final Rule that would cause changes
to jurisdictional scope, as compared to the 2013 proposed Rule
and then currently operating procedures. These key concerns
addressed the subjects of tributaries, other waters, adjacency,
neighboring isolated water bodies, the 4,000-foot
jurisdictional limit, and ditches, among others. These concerns
went largely unaddressed.
Further, it was the Corps judgment that key policy
decisions, especially the 4,000-foot jurisdictional limit, but
also decisions related to the definition of tributaries and the
treatment of isolated water bodies, were not based on
scientific analysis contained in the Connectivity Report, nor
part of the proposed Rule that was available for public
comment.
When the final draft Rule and Preamble were provided for
interagency coordination in early April 2015, Corps staff
discovered that the final Rule still did not address these key
concerns. The Preamble also mischaracterized the Corps as
jointly developing the Rule and as supporting its key
judgments. This is inaccurate.
A few weeks later, the technical support document and
economic analysis were published, and had analyzed Corps
technical data without Corps involvement. In broad terms, they
both misapplied Corps data out of context to generalize broad
nationwide conclusions unsupported by the underlying data.
Corps experts believed the draft final Rule and supporting
documents were so untenable, I asked Corps staff to provide a
thorough, but rapid, analysis of only those issues in the Rule
documentations which they identified as potential fatal flaws.
Given limited Corps involvement during the rulemaking and the
Corps judgment that the Rule was fatally flawed, I became
unsure whether we had adequately conveyed Corps concerns to the
policymakers. The internal deliberative memoranda I forwarded
to the Secretary were intended to fulfill my duty to be certain
to communicate the Corps' serious concerns clearly and
unambiguously before an irreversible final decision.
In my professional opinion, this Country and Federal
regulators like the Corps need clear, objective, bipartisan
policy direction that is well founded on facts, science,
appropriate expertise, and clearly articulated laws,
regulations, and policies.
It remains my sincere hope that this Nation's policymakers,
including this Committee, can find common ground based on
science and objective analysis to develop a bipartisan solution
on this important and, in my judgment, much needed matter. I
hope that my testimony has provided some value for the
Committee and I thank you for your time.
[The prepared statement of Mr. Peabody follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you very much, General Peabody. We
appreciate your comments and your testimony. Appreciate it.
Next I will turn to Michael Josselyn, who is a Principal at
Wetlands Research Associates, San Rafael, California.
Thanks so much for being with us today. We appreciate you
coming and we look forward to your testimony.
STATEMENT OF MICHAEL JOSSELYN, PH.D., PWS, PRINCIPAL, WETLANDS
RESEARCH ASSOCIATES
Mr. Josselyn. Thank you, Mr. Chairman, Mr. Ranking Member,
and members of the Committee. I am Michael Josselyn, Founder
and Principal with the environmental consulting firm Wetlands
Research Associates, with offices throughout California and in
Colorado. I am primarily responsible for assisting our Federal
and State private clients in compliance with Section 404 of the
Clean Water Act, and I have 38 years of experience and am a
Certified Professional Wetlands Scientist.
I served on the Environmental Protection Agency's Science
Advisory Board Expert Panel to review the EPA's Connectivity
Report which was prepared during the rulemaking process for the
2015 WOTUS Rule. I want to make three points in my introductory
remarks.
First, the Panel's focus was on the Connectivity Report and
whether the Report reflected the current status of the science
on rivers, streams, and wetlands. We were charged with making
recommendations to improve and clarify the Report. The draft
Report confirmed the basic hydrologic principle that all parts
of a watershed are connected to some degree.
The Panel was not tasked, nor did it consider, the policy
and legal questions on which waters should be federally
regulated. The Panel made numerous recommendations on the
content and interpretation of the literature. The Panel asked
the EPA to evaluate the strength of the literature in various
topic areas and the uncertainty associated with it.
As you can see from the table here on my right that was
published in the final Report, the scientific literature is
strongest for those drainages that have perennial and
intermittent flows as being connected, as shown by the larger
dots on the chart. The effect to downstream waters is less
known for intermittent streams.
We also know a great deal about riparian wetlands, that is,
wetlands that are directly connected to rivers. When it comes
to ephemeral streams and non-floodplain waters, the literature
is very limited, as shown at the bottom of the graph in the
small dots.
The final Report is an encyclopedia of what we know about
the science, but is also limited by what we do not know.
Second, the Panel found that ``the review of the scientific
literature strongly supports the conclusion that streams and
bidirectional floodplain wetlands are physically, chemically,
and/or biologically connected to downstream navigable waters;
however, these connections should be considered in terms of a
connectivity gradient.'' The presence of a gradient that
defines the effects on downstream waters became a foundational
element in the discussions by the Panel. The Panel stated that
connectivity should ``recognize variation in frequency,
duration, magnitude, predictability, and consequences of these
connections'' and developed a figure as to what that meant.
This is the figure that I am showing right now that was
published in the science report.
In the upper portion of the figure, the Panel concluded
that there was a high probability, as shown by the width of the
blue bar, that perennial streams and intermittent streams will
have a high degree of connectivity to downstream waters given
their high frequency and duration of flow, and the amount of
material that could be transported to those waters.
Similarly, for biological factors, the scientific evidence
shows that perennial and intermittent streams transported
materials downstream are also high, but had considerably less
probability associated with ephemeral streams. Importantly, as
the frequency, duration, and magnitude of flows decrease,
ephemeral streams, as shown as you move to the side where the
smaller arrow, that the probability for an effect on the
downstream waters is much lower, as the chart states, and may
not have a discernible effect.
The Panel repeatedly recommended that the EPA develop more
quantitative measures and criteria to assess this connectivity
gradient. The Panel concluded that although connectivity is
known to be ecologically important, the frequency, duration,
predictability, and magnitude of connectivity will ultimately
determine any consequences to downstream waters.
Third, there are a number of concepts and issues included
in the WOTUS Rule that were not elements of the Panel's review.
For instance, distances set by the WOTUS Rule were not
considered by the Panel and, in fact, the Panel stated distance
should not be used as a metric for determining connectivity.
Furthermore, the approach set forth in the WOTUS Rule for
determining significant nexus is based on the selection of any
one function and does not consider the connectivity gradient
discussed in the Panel's report and shown on this graph.
Finally, the Panel did not review, nor did the Connectivity
Report discuss, the aggregation methods in which similarly
situated tributaries would be combined in order to reach a
significant nexus finding.
In my experience in making jurisdictional determinations,
these elements of the WOTUS Rule have the effect of expanding
the scope of jurisdiction compared to past guidance by the
Corps and the EPA.
Thank you.
[The prepared statement of Mr. Josselyn follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you so very much for your
testimony. We appreciate you being here with us today, Mr.
Josselyn.
I would like to now turn to Misha Tseytlin, who is the
Solicitor General for the State of Wisconsin, from Madison,
Wisconsin. I appreciate you making the trip to Washington,
being with us, and I look forward to your testimony.
STATEMENT OF MISHA TSEYTLIN, SOLICITOR GENERAL, STATE OF
WISCONSIN
Mr. Tseytlin. Thank you, Chairman Barrasso, Ranking Member
Carper, and members of this Committee. I am grateful for the
opportunity to appear before you today. My name is Misha
Tseytlin and I serve as the Solicitor General for the State of
Wisconsin.
My State, led by Attorney General Brad Schimel, has played
an important role in the multistate coalition litigating
against the WOTUS Rule. Our 30-state coalition is broad and
geographically diverse, comprising States from Wyoming to West
Virginia, from Ohio to Oklahoma, from Alabama to Alaska and
beyond.
The reason for the breadth of this coalition, to my
knowledge, the largest such coalition challenging any
regulation issued by the prior administration, is that the
WOTUS Rule is a deeply intrusive invasion upon traditional
State authority. Under both the United States Constitution and
the Clean Water Act, States have the lead role in regulating
most waters and lands within their borders. The Clean Water Act
states this explicitly, explaining that it is ``the primary
responsibility and rights of States to plan the development and
use of land and water resources.'' The Federal Government, in
contrast, only has limited authority to protect the Nation's
``navigable waters.''
The WOTUS Rule is an overbroad assertion of Federal
authority over local waters, which are rightfully subject to
State, not Federal, regulation. The Rule claims Federal power
over streambeds that are dry most of the year and water
features connected to navigable waters only once every 100
years. I think a small example will illustrate this point. If
you are a Wisconsin farmer and you have a small pond on your
land, that pond is automatically subject to Federal
jurisdiction if, after a once-in-a-century rainstorm, that pond
is within five football fields of any tributary, any navigable
water.
This Rule was also adopted without meaningfully consulting
the States about their water protective programs. Such
consultation would have revealed that States already protect
these local features, making Federal regulation unnecessary.
Indeed, I would argue that the process that led to the adoption
of the WOTUS Rule involved one of the most significant
procedural failures in the history of the Administrative
Procedures Act.
Earlier testimony from General Peabody demonstrated how EPA
cut the Corps out of the process of designing the WOTUS Rule.
That is just the tip of the iceberg. EPA cut the entire public,
including the States, out of that process. That is because the
final Rule that the Agency adopted departed very significantly
from the proposed Rule, in a way that the public had no idea
about and was not informed about. In particular, EPA formulated
many of the central concepts of the Rule behind closed doors
and sprang them on an unsuspecting public without public input.
The lack of record support and procedural illegalities of
the WOTUS Rule can be summarized with one simple point. When
the prior administration filed its 245-page brief before the
Sixth Circuit seeking to defend the Rule, it could not cite a
single public comment on the central features of the WOTUS
Rule's adjacency or case-by-case waters category, either for or
against. That is because EPA simply invented those central
concepts of the WOTUS Rule out of whole cloth, without any
record support or without any public input. That is against the
law.
It is, thus, unsurprising how poorly the WOTUS Rule has
fared in court. On October 9th, 2015, our broad coalition of
States secured a nationwide stay of the WOTUS Rule from the
United States Court of Appeals for the Sixth Circuit. As the
Sixth Circuit explained, the States demonstrated that they had
a ``substantial possibility of success on the merits'' in their
arguments that the WOTUS Rule violated the Clean Water Act and
violated the EPA. The United States District Court for the
District of North Dakota reached the same conclusion and thus
issued a preliminary injunction blocking the WOTUS Rule.
Our coalition of States was extremely pleased that the new
Administration heeded the message of the Federal courts and has
moved forward with rescinding the Rule.
The work that this Committee is doing here today provides a
valuable public service. Given the current Administration's
laudable and swift movement toward repealing the WOTUS Rule,
the Federal courts are unlikely to have an opportunity to
declare, finally, what the Sixth Circuit and the District of
North Dakota concluded preliminarily: the Rule is unlawful.
This hearing is therefore vital to establish for the public
what the States were already well on their way to proving in
court.
Thank you for the opportunity to testify before you today.
I look forward to answering any questions you may have.
[The prepared statement of Mr. Tseytlin follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you very much, Mr. Tseytlin. We are
very grateful for your testimony.
I would like to now turn to Ken Kopocis, who is Assistant
Professor, American University Washington College of Law,
Washington, DC.
Thank you very much for joining us today.
STATEMENT OF KEN KOPOCIS, ASSOCIATE PROFESSOR, AMERICAN
UNIVERSITY WASHINGTON COLLEGE OF LAW
Mr. Kopocis. Thank you. Chairman Barrasso and Ranking
Member Carper, thank you for the request to appear today to
discuss the Clean Water Rule, a rule issued jointly by the U.S.
Environmental Protection Agency and the Department of the Army
to clarify the scope of the Clean Water Act. I appear today in
my personal capacity.
In 1972, Congress enacted the Clean Water Act and made
clear that the objective of restoring and maintaining the
Nation's waters would best be achieved by controlling
pollutants at their source. The Clean Water Rule assists that
effort by making the scope of the Clean Water Act easier to
understand, more predictable, and more consistent with the law
and peer-reviewed science. The Rule interprets the Clean Water
Act; it does not expand it.
It is critical to note that the Clean Water Act permitting
requirements are triggered only where there will be a discharge
of a pollutant into a jurisdictional water. If a jurisdictional
water is not going to be polluted or destroyed, the Clean Water
Act does not affect the use of that water.
The Supreme Court has considered the scope of waters
protected by the Clean Water Act from pollution and destruction
three times: Riverside Bayview, SWANCC, and Rapanos. In each of
those cases every Justice has supported that the term navigable
waters applies to waters beyond those considered to be
traditionally navigable.
In Rapanos, no opinion could gather a majority, and the
nine Justices wrote five separate opinions. That confusion
evident on the Court carried over into the regulated community
and the two agencies. In both SWANCC and Rapanos, the agencies'
regulations were left intact by the Court.
Interested parties demanded that the agencies take
regulatory action to clarify which waters would have their
water quality protected by the Clean Water Act and which would
not. Every interest group that approached the agencies, and
this includes agriculture, property development, environmental
groups, resource extraction, hunters, fishers,
conservationists, mayors, Governors, Federal and State
legislators on both sides of the aisle, and countless others,
all recommended that the agencies take action to address the
post-Rapanos confusion. No one argued for the agencies to do
nothing.
In response, the agencies spent several years developing
the Rule, and its development included countless conversations
with all of the interested parties I previously mentioned.
The Rule is informed and supported by the best available
peer-reviewed science on the relationship of waters and the
impacts of protecting water quality, or not protecting water
quality, on downstream and adjacent waters. EPA's Office of
Research and Development prepared an exhaustive synthesis of
peer-reviewed science on how waters are connected to each other
and how they impact downstream waters. The Science Report was
peer-reviewed by EPA's independent Science Advisory Board and
subject to public comment. Science was reviewed by the board,
not policy.
The final Science Report provides several key conclusions
in support of the Rule. Additionally, the Science Advisory
Board indicated that available science provided an adequate
basis for key components of the Rule.
The Rule recognizes three categories of jurisdiction:
waters jurisdictional in all instances, but limited by
definitions that address issues such as connectivity and
significance of nexus; a narrow category of waters that will
continue to be subject to case-specific significant nexus
analysis of SWANCC and Rapanos; and an expanded list of waters
that are excluded from jurisdiction. The Rule also establishes
transparency and how the agencies will make significant nexus
determinations, rather than leaving that to the discretion of
an agency employee.
Because of the Clean Water Rule's greater clarity and
specificity compared to the rule it replaced, no longer would
many waters need a time-consuming individual analysis to
determine whether there was a significant nexus to a downstream
jurisdictional water. The Rule carries forward the
jurisdictional exclusions and adds several new ones. People
would, for the first time, be able to read the Rule and better
know that a water body or feature was not subject to the Act
without the need for an expert or individual analysis.
For greater detail on inclusions and exclusions, I attached
the Rule to my testimony.
The Clean Water Rule is a carefully considered rule that
was developed with unprecedented public engagement and comment.
It was available for public comment for over 200 days, and
during that period EPA held over 400 public meetings and calls.
I personally attended about 70 of those in my prior capacity.
The Rule applies the law as written by Congress and
interpreted by the Supreme Court. It relies upon the best
available peer-reviewed science and it is a product of over 40
years of technical expertise of the U.S. EPA and the Army,
working with the Corps of Engineers on the Clean Water Act.
Unfortunately, the Rule's benefits of clarity,
predictability, and consistency have been put on hold by the
Sixth Circuit, but that will ultimately be resolved. While I
personally am very aware of the controversy surrounding the
scope of the Clean Water Act, I also believe that it is a
disservice to the public that the current Administration has
indicated that it will undertake a new rulemaking to repeal and
replace. That effort is guaranteed to continue the post-Rapanos
confusion for many, many years to come.
The work of the Clean Water Act is far from finished.
State-generated water quality reports indicate hundreds of
impaired waters in need of reduced pollution and increased
protection. Narrowing the scope of the Act does not advance
these joint Federal and State efforts.
In my 30-plus years in water law, I have never heard that
the water in our rivers, lakes, streams, and ponds is too
clean; that there are too many healthy fish to catch and eat;
that our drinking water is too clean and abundant; or that we
need more beach closures due to pollution.
The Clean Water Rule advances the cause of restoring and
maintaining the integrity of our Nation's waters. Thank you
again, and I am pleased to answer any questions you may have.
[The prepared statement of Mr. Kopocis follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you, Mr. Kopocis, for being with us
today and sharing your testimony.
I would like to now turn to Collin O'Mara, who is the
President as well as the Chief Executive Officer of the
National Wildlife Federation from Reston, Virginia.
Thank you very much for joining us. We look forward to your
testimony.
STATEMENT OF COLLIN O'MARA, PRESIDENT & CHIEF EXECUTIVE
OFFICER, NATIONAL WILDLIFE FEDERATION
Mr. O'Mara. Thank you. Mr. Chairman, Senator Carper,
members of the Committee, on behalf of our six million members
of the National Wildlife Federation, our more than 50 State and
territorial affiliates, our millions of hunters and anglers,
thank you or holding this hearing and talking about ways we can
improve water quality. We are committed to finding bipartisan,
collaborative solutions to making sure that we avert the
wildlife crisis that we are facing so we can all enjoy the
great outdoors.
I think we would all agree that clean water is absolutely
essential for public health. It is essential for wildlife; it
is essential for local economies. As I have traveled to all 50
States across this Country, Americans of all backgrounds, of
every zip code all agree that they are united on the need for
safe drinking water and healthy rivers. We have seen,
unfortunately, in the past few years what happens when we do
not take care of our water supplies. We saw this in Flint,
Michigan and Toledo, Ohio. We saw this in Eden, North Carolina
and Charleston, West Virginia. We saw this in the Animus and in
the Yellowstone River. Where I live in Delaware, more than 90
percent of our waterways have excess nutrients and legacy
pollution.
One of the best ways to clean up America's waterways is to
reduce pollution at its source. I think we knew this in 1972,
when Ed Muskie was in this very Committee thinking about how to
clean up America's waterways, and the National Wildlife
Federation was proud to stand along at the Anacostia River, at
the boathouse, as the Earth Conservation Corps, our D.C.
affiliate, when the Clean Water Rule was finalized.
Today I would like to cover four points about the Clean
Water Rule: the underlying science of connectivity, the case
law, the economic benefits, and the importance to wildlife and
sportsmen.
First, the science of connectivity. There is broad
scientific agreement, as I think you have heard from this
panel, that keeping America's rivers healthy starts upstream.
Just like the tree that depends on its roots, the healthy river
is tied to the health of the streams that feed into it. Aquatic
systems are interrelated and interconnected, as Senator Howard
Baker once said. This makes common sense. As this Chairman
said, we learn this at an early age, about the water system and
that the pollution enters into small tributaries and makes its
way into the main stems. Pollution that is added to the
Schuylkill River in Pennsylvania affects my Delaware River
downstream. Nebraskans that depend on the Platte can not ensure
the health of the Platte unless they reduce the pollution
coming from Colorado through the Southern Platte tributary.
As Wendell Berry once said, we should adopt the water
golden rule, if you will: do unto those downstream as you would
have those upstream do unto you. Cleaning up America's
waterways has to start with headwaters and tributaries.
Now, the Science Advisory Board overwhelmingly confirmed
this fact, and I think you have heard this. Although there are
disagreements about the gradients, there is broad consensus
that the definition of navigable waterways needs to extend into
these headwaters.
That brings me to the law. EPA and the Army Corps developed
the Clean Water Act because the Supreme Court directed them to
do so. From both Chief Justice Roberts and Justice Breyer, they
clearly called for the agencies to act in the Rapanos decision
and in subsequent decisions, and there is agreement that the
jurisdiction extends beyond just navigable waterways into these
tributaries.
The approach that is most widely accepted by the U.S. Court
of Appeals is Justice Kennedy's significant nexus test. This
requires showing the ecological linkages between smaller and
more remote water bodies and the navigable waterways. The Clean
Water Rule closely tracks Kennedy's test, grounding its
definitions of which waters are included in its science-based
finding to show the connectivity between tributaries to
traditional navigable and interstate waters, wetlands and lakes
and other water bodies that are adjacent to these tributaries
that provide critical filtration.
Also the Rule is very clear, both the Corps and the EPA
were very clear about which waters are excluded and which
activities are not under the jurisdiction of the Act. This
clarification is incredibly important; it is actually essential
to providing regulatory certainty. As the former Secretary of
Natural Resources for the first State of Delaware, I can attest
to the uncertainty on the ground and how the uncertainty leads
to confusion because of the court decisions and the previous
regulations that are just completely confounding to the average
landowner.
Businesses and landowners need predictability. They need a
way to make decisions, and having these ambiguous decisions
that they are trying to hire experts to hope that the
recommendations are given will hold up in court is creating a
lot of paralysis on the landscape. This Rule clarifies which
waterways are covered and strengthens those exemptions in a way
that is much more narrow than the scope of the included
waterways prior to 2001.
That brings me to my third point, which is economics. In
addition to increasing predictability, the Rule supports
America's $800 billion outdoor economy and the millions of jobs
that depend on the health of American waterways. These jobs,
retail outfitters, fishing and river guides, bate shops,
hotels, restaurants, they are important in rural communities
like where I grew up in upstate New York. Many of these
communities are struggling with high unemployment and they
depend upon healthy waters for boating, fishing, hunting, and
wildlife watching. Fishing alone supports $200 billion in
economic activity and 1.5 million jobs, and that requires clean
water.
Finally, for wildlife and sportsmen, clean water is
exceptionally important. More than 50 million Americans,
including many on this Committee, hunt and fish. It should come
as no surprise that duck hunters and anglers care deeply about
water quality. More than 8 in 10 hunters and anglers across
this Country support Federal protections for smaller streams
and wetlands. Further, restoring wetland and waterway health is
an important way that we can proactively solve America's
growing wildlife crisis and recovering aquatic species that are
at risk of potential extinction, things like amphibians,
bivalves, mussels, and oysters, and a range of freshwater fish.
In conclusion, in our lifetime we have the potential to
fulfill the promise of the Clean Water Act, when 45 years ago
this Committee said that they were going to make sure that
America's waters were fishable, swimmable, and drinkable. It
will take a combination of common sense protections, as well as
collaborative conservation efforts like the Chairman mentioned.
We need things like good conservation programs in the Farm
Bill, the State Revolving Funds, efforts like the Great Lakes
Restoration Initiative, efforts like the Chesapeake Bay
Program, the Delaware Bay Conservation Act.
There are a lot of things that we need to do to make sure
we are enhancing collaborative conservation. We also need
common sense protections. The Clean Water Rule is an important
part of this effort and it is a product of years of transparent
scientific and public deliberations, and it protects the
drinking water for more than 117 million Americans.
Thank you for the time. We encourage you to support the
Rule.
[The prepared statement of Mr. O'Mara follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you very much for your testimony.
I thank each and every one of you for being here today.
We are going to ask the members now to join in the
questioning, and I will start with you, Dr. Josselyn, if I may.
We have gotten to the point where the WOTUS Rule is a
punchline. As you can see, cartoonists are joking about
navigable water on Mars. It says Nassau discovers evidence of
flowing water on Mars, federally protected wetland, EPA, Clean
Water Act advisory. Here we have this as a punchline because
Mars has erosion features. Do a lot of other places. Water
creates erosion when it runs downhill.
The second picture is of a highway project in Indiana where
the WOTUS sign, an Indiana highway project, it says: Notice
Waters of U.S. It is an actual sign in Indiana. The contractor
put up the sign because they were concerned that the EPA and
the Corps would consider this hillside a water of the United
States because the WOTUS Rule could regulate the hill as a
tributary, as there are real streams somewhere maybe nearby.
What you can see is the issue related to adjacent water.
My question is does the EPA Science Report support the
conclusion that these kinds of erosion features, both on Mars
and here in Indiana, have a significant nexus to navigable
water?
Mr. Josselyn. Thank you, Senator. I look at that figure and
I have to say that I have seen that similar situation in other
areas of the U.S. where the EPA and the Corps have taken
jurisdiction over what look like very ephemeral features.
Obviously, the presence of an ordinary high water mark is
the only indicator that they use there. As I testified, the
science does not support that type of feature as having a
significant nexus, and it goes back to the chart which I showed
earlier, is that the probability of a significant nexus when
coming to features that have very infrequent flows, low
magnitudes of flows indicates that the probability downstream
of an effect is very minimal. This was something that was found
by the Science Panel in their review.
Senator Barrasso. Thank you so much.
General Peabody, is it true that the Corps of Engineers was
really cut out of the process of drafting the final WOTUS Rule
and that you asked that the Corps' name be taken off of the
technical support document and the economic analysis that were
supposed to be used to justify the Rule?
General Peabody. Sir, I believe I characterized it in my
written testimony that the Corps was marginalized, but the time
period is important because when I arrived at the headquarters
in late 2013, the process was already underway. The Rule had
just been proposed and the proposed Rule was promulgated in
April 2014. Throughout that period, based on the advice I got
from Corps professionals, the Corps was involved. We certainly
did not always agree on everything, but I think that is normal.
People have reasonable disagreements based on their
perspectives.
My characterization of the Corps' involvement starting in
approximately November 2014 is that our involvement was
limited, distinctly limited, I would say. It was unclear to us
whether the efforts we made to have our concerns understood
were in fact understood. We clearly had opportunities to
comment on various aspects of the Rule. We sought a couple of
opportunities to talk to Secretary Darcy about the Rule, and
she heard us out, but our concerns went largely unaddressed.
Senator Barrasso. In many places the Preamble, the
technical support document says that the Rule is based on
agencies' experience and expertise. It is my understanding that
the Corps, not the EPA, performs the vast majority of the
determinations of which waters are Federal. If the Corps is
kind of cut out or marginalized from the process, is it fair
for me to conclude that the statements that the Rule is based
on the agency's experience and expertise are not accurate?
General Peabody. The Corps did not believe at that time,
and I want to continue to emphasize I do not speak for the
Corps today. I only speak for the Corps to the extent that I
understood it at that time. We did not believe that our
judgment and experience was adequately incorporated into the
Rule to reflect the experience you reference. Yes, it is also
true that we had no role, the Corps had no role in analyzing
the technical support document or doing the analysis, I should
say, for the technical support document or the economic
analysis.
Senator Barrasso. Mr. Tseytlin, you have heard what General
Peabody said; you heard what Dr. Josselyn has said. Can the
WOTUS Rule definition, from your role as Solicitor General
involved in the suits, can the WOTUS Rule definition of
adjacent water actually hold up in court, then?
Mr. Tseytlin. No, I do not believe it can. I think the
clearest way to describe why it cannot is that in the Rapanos
decision Justice Kennedy specifically said that one of the
things the Court tried to do there was it tried to base Federal
jurisdiction on adjacency to tributaries. Justice Kennedy
specifically said, whatever else you think, you can not base it
on adjacency to tributaries.
Remarkably, in the WOTUS Rule, EPA once again attempted to
base adjacency to tributaries for Federal jurisdiction. There
are many other problems with the adjacency definition, the five
football field thing that we talked about before, but that is
just the most obvious one, that Justice Kennedy clearly said
you could not do this and then EPA went ahead and did it.
Senator Barrasso. The 1,500 feet that they used, the
arbitrary number that has been grasped.
Mr. Tseytlin. Absolutely. That is exactly right.
Senator Barrasso. Thanks.
Senator Carper.
Senator Carper. My understanding, in 1972, in this room
they were debating the Clean Water Act. I was over in Southeast
Asia, not following very closely what was going on, but I had a
chance to read up on it a little bit since then, and my
understanding of the intent of the Congress and then-President
Nixon was to clean up water. They are pretty expansive in their
scope of doing so.
We have ended up, over the years, my time as Governor of
Delaware--I want to especially welcome Collin today and thank
him for his service to our State and the good work that he is
doing today. What I heard from folks in Delaware was farmers,
we have quite a few farmers in the little State, a lot of
developers, and what I heard pretty consistently was it was
hard for them to know what they could do or could not do, and
they just wanted some certainty, some predictability, some
clarity.
It is not just a few people, a few developers, a few
farmers that were saying this, this was like the message from
all over the Country. When you look at what the Supreme Court
did, what was the decision, one to four, a plurality? There is
not a whole lot of guidance there. When I listen to this
testimony and try to read my briefing notes, this is not an
easy thing to understand, so I can understand why the Supreme
Court might have wrestled with the issue of clarity too.
I want to ask Mr. Kopocis what was your role in all of this
as this Rule was being developed? Just very briefly what was
your role?
Mr. Kopocis. Well, initially when I went over to EPA, I was
serving as a senior advisor as the President's nominee to be
the AA for the Office of Water. When the Rule was finalized, I
was the Deputy Assistant Administrator for the Office of Water,
effectively running the Office of Water.
Senator Carper. All right. Now, I might be mistaken, but I
was under the impression that the EPA did a pretty good job in
terms of listening. They asked folks who had views on this,
give us your opinion. My recollection is about a million
people, businesses, farmers, did just that.
I understand that there were hundreds of meetings in the
States across the Country, maybe as many as 400. I was under
the impression that this was a partnership between EPA and the
Army Corps of Engineers, and General Peabody's comments today
are troubling to me. I was under the impression that the Army
Corps had actually felt that the Rule was not rigorous enough
based on the Army Corps' analysis of science. That might be
wrong.
Could you give us some clarity on that point?
Mr. Kopocis. Thank you. Yes, we did have countless
discussions with all the interested groups, as I said in my
testimony. In particular, with the States, we had special
meetings with the States during the pendency of the
consideration of the Rule. We met with ECOS, the environmental
commissioners, Aqua, the people that actually run the water
programs, and also the State wetlands managers. We convened
special panels of their representatives so that they could
participate in our conversations, and we also formed a special
subcommittee of the local government advisory committee to go
around the Country and listen to governmental concerns on the
Rule.
We did coordinate extensively with our colleagues of the
Department of the Army and the Corps of Engineers. Ultimately,
when it became time to decide what was going to be in the Rule,
Administrator McCarthy coordinated with Assistant Secretary
Darcy as to what would be in the Rule. The concerns that
General Peabody has talked about that were raised in the memos
we were made aware of very late in the process. Those were
internal items to the Department of the Army and the Corps of
Engineers. Those documents were never brought to our attention
in a time where something could have been changed.
We looked to the head of the Corps, the Assistant Secretary
of the Army, I should say the political person responsible for
policy, to see whether the path that the agencies were
following was one that they agreed with or not. As I believe
Jo-Ellen Darcy, Assistant Secretary Darcy testified at this
Committee that she agreed with the final recommendations and
the final text of what was in the Rule.
Obviously, there were differences of opinion within the
Corps. There were differences of opinion at EPA as well. As you
said in your opening remarks, nobody has characterized it as a
perfect rule, and different people, depending on whether they
could write it by themselves, would have written it
differently.
Senator Carper. All right. I hope we have a chance for
another round. My time has just about expired. Thank you all.
Collin, I hope I have a chance to ask a question of you.
Thank you.
Senator Barrasso. Thank you, Senator Carper.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
First, I have a document here from the American Road and
Transportation Builders. This Committee is very familiar with
them as we passed our FAST Act and all of our highway bills,
and I ask that their comments on this, Mr. Chairman, may be
made a part of the record.
Senator Barrasso. Without objection.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. I have to say this about the whole WOTUS
thing. I go back to Oklahoma when it was first proposed. The
head of the Farm Bureau of the State of Oklahoma, Tom Buchanan,
said of all the problems that farmers and ranchers are facing
in America right now, it really has nothing to do with anything
that is in the Ag bill; it is overregulation of the EPA. They
single out the WOTUS Rule as being the greatest concern. We are
talking about this is nationwide. This is how significant
people feel about this.
I remember also, General, back when we were putting this
thing together, I was chairman of the Committee in 2009 when
they established this data base called DARTER, which keeps
track of the permits and it provides the EPA with the ability
to constantly look over the Corps' shoulders. I said at the
time that it seems to me that the EPA employees are not trained
to do jurisdictional determinations, so it does not make sense
for them to be second-guessing the decisions the Corps has
made.
Now, is not this a duplication of effort, in your opinion?
General Peabody. Senator, I believe the DARTER data base is
for enforcement actions. It is an EPA data base, and I would
defer to Mr. Kopocis to talk about that in more detail.
However, the Corps data base that tracks permitting actions and
jurisdictional determinations is called ORM2.
Senator Inhofe. My question is are they really--well, I
would ask you, Mr.----
General Peabody. I believe they are two different data
bases for two different purposes. That is my understanding.
Senator Inhofe. Okay.
Any comments, Mr. Josselyn?
General Peabody. I am sorry, sir?
Senator Inhofe. Okay, never mind.
We are interested in removing barriers to building
infrastructure. Do you have any recommendations, General, for
us how to streamline the 404 permitting process?
General Peabody. Sir, the first thing I would say is that
the process is much more streamlined than most people give it
credit for thanks to the general permit. There are several
general permit provisions that enable that. As I indicated,
about 80 percent of all actions are permitted within 60 days
from finalizing a policy-compliant application.
The trouble gets into because the volume is so high, there
were approximately 79,000 actions in 2016, that it does not
take a small percentage to result in a large number of actions
that are not processed efficiently.
One of the things I think that could be done is that our
partner agencies have time limits associated with their input
into these actions. The Corps must coordinate with them to
ensure that their responsibility, statutory responsibilities
are addressed adequately. Sometimes on-the-ground, figuring out
the science to address endangered species and the like takes a
lot of time.
I would recommend putting a limit on a period of time for
an individual permit action, some number of years, short number
of years, two, three, or four, and then elevating those for
processing above the level of the----
Senator Inhofe. From every 5 years to maybe every 10 years?
General Peabody. Sir, the time period I would defer to the
Corps and the EPA to make recommendations, and other natural
resource agencies to make recommendations. There are actions
that have gone on for over 10 years.
Senator Inhofe. Yes, I know.
General Peabody. To me, that is unconscionable.
Senator Inhofe. There is one out in California.
Mr. Tseytlin, there is a lot of confusion around the
staying of the courts on this Rule, and after hearing from the
testimony about the lack of technical and scientific
jurisdiction for the Rule, do you think that--well, when the
stay came on, it did not talk about the merits of the Rule. How
do you think that would hold up in court?
Mr. Tseytlin. A necessary prerequisite for the issuance of
a stay is a finding of likelihood of success on the merits. The
Sixth Circuit has already found that the States are likely to
succeed on the merits, proving that the WOTUS Rule is illegal
under both the Clean Water Act and the EPA. I think a final
judgment on that would have been finalized if the Rule had----
Senator Inhofe. That is very clear. Thank you very much.
Let me just say, Mr. O'Mara, that a comment that was made
by the Chairman during his line of questioning, and I have a
great deal of respect for your organization, but it was to have
more of the landowners' participation in these decisions than
you normally get out of a bureaucracy. He called to your
attention the Fish and Wildlife Partnership Program that has
been tremendously successful, and I assume that you agree with
that, with that concept and what has made that successful.
Mr. O'Mara. Absolutely. We have enjoyed working with you
and your team trying to promote those kinds of collaborative
vehicles. I think the one thing that we see is that if there is
a way to reduce pollution at the source, again, not regulating
activities that are not affected by it, and then combining that
with some of the collaborative efforts, we could actually
achieve the water quality goals. Collaboration is always best.
Senator Inhofe. Thank you very much.
Senator Barrasso. Senator Duckworth.
Senator Duckworth. Thank you, Mr. Chairman. I also thank
the Ranking Member for convening this very important
conversation.
My constituents in Illinois are concerned about how WOTUS
or the Clean Water Rule will affect public health and the
economy. It is our responsibility and duty as public servants
to ensure that these objectives are balanced and that one does
not outweigh or thrive at the expense of the other.
I am really glad, General Peabody, that you mentioned the
role of the Corps, especially in dealing with endangered
species as well. It is why I also urge the Trump Administration
to make strong science and robust public engagement as the
foundation of WOTUS as we move forward.
WOTUS is about water quality, and we will have a water
quality crisis in Illinois if the Great Lakes Restoration
Initiative is not prioritized. Today's discussion is
fundamentally about water quality. WOTUS does play a factor
with the GLRI. In my State and all across the Midwest, the
Great Lakes Restoration Initiative is the program that protects
and safeguards the quality of the largest system of fresh
surface water in the world, and WOTUS feeds into that.
Mr. O'Mara, the Trump Administration's skinny budget
includes a proposal to completely eliminate the Great Lakes
Restoration Initiative. In your view, how would eliminating
this Initiative challenge our ability to protect drinking water
across the Great Lakes region?
Mr. O'Mara. One of the most successful water quality
programs in American history has been the Great Lakes
Restoration Initiative, and I think the Chairman summed it up
perfectly in his comments at the beginning, that we want to
foster collaborative activity on the ground. If you cut that
program, the $400 million that has gone to collaborative
partnerships on the ground making good habitat projects, water
quality projects, trying to reduce invasives, you will see a
deterioration of water quality quickly for the most important
freshwater supply in our entire Country.
It is not just that. The proposal to remove the
headquarters of Region 5 out of Chicago, the idea that the
place where we just had the Flint water crisis, the place where
we had the sheen on the Chicago River, the place where we just
had the challenges in Flint. To not have an important center
and the resources to take care of the Great Lakes would be
devastating for the Country's resources.
Senator Duckworth. Definitely. Can you speak a little bit
to the economic impact of the Great Lakes Restoration
Initiative? I mean, we talk about just the quality of the
water, but we are talking about a region in this Country that
spans all across the Midwest, goes all the way up into New
York, and really was the place where so much of our economic
growth happened in the last century. Let's talk about the
economic impacts of the Great Lakes Restoration Initiative.
Mr. O'Mara. Sure. The return on investment of the Great
Lakes Restoration Initiative is one of the highest of any
government investment you can make. You are talking about a
5:1, 10:1 kind of return when you look at the millions of
people that are employed because of the freshwater in the Great
Lakes, because of the number of companies that locate in the
region because of access to that, the tourism industry that
comes from it.
The thing that excites me about the Great Lakes, as much as
any place in the Country, is that you have a bipartisan
consensus for action, and the fact that when proposals are made
to reduce funding, Republicans and Democrats come together
because it is a value. It is not a partisan football. The
economic impact is as big as any region in the Country, in the
billions, hundreds of billions of dollars of benefit.
Senator Duckworth. Thank you. You mentioned the proposed
closing of EPA Region 5 office, which is the office that
oversees the entire Midwest region. My constituents across the
region are deeply concerned, not just those in Illinois, but
those across the Midwest, about this potential closing of this
office and how it would undermine EPA's ability to do its job.
I believe that more than our policy, our people are the
backbone of the environmental and public health protections;
scientists like Miguel Del Toral, the EPA Region 5 scientist
who raised the red flag on the Flint water crisis, all of the
teams that come out that are the rapid response teams.
We are about to get into tornado season in the Midwest.
Actually, we are in it already. With tornado season comes the
effects of disaster, followup with disasters. The EPA actually
has people who come out as part of a disaster response team
that responds when anything like this happens. To not have an
office in Chicago would literally add days of travel to any
team that must come in from outside the Midwest region.
Mr. Kopocis, in your view as a former Acting Assistant
Administrator for EPA, how can we reasonably expect EPA to
deliver on its mission of protecting public health if regional
offices like Region 5 are eliminated or consolidated?
Mr. Kopocis. EPA's regional offices are a key component of
accomplishing the mission of the Agency. They are the front
line that deal with State and local issues. The examples that
you have raised throughout the Midwest are key. The Chicago
office, in particular, played a key role in making sure that
the Great Lakes Initiative was carried out in the most
effective and responsible way. They were also on the front line
in dealing with State issues as they come up. Most States do
not initially contact the EPA headquarters office; they contact
their regional office, so that role is invaluable.
Senator Duckworth. Thank you. I am running out of time.
Mr. Chairman, I would like to submit a letter for the
record on behalf of the Healing Waters Coalition, which works
on the Great Lakes issues.
Senator Barrasso. Without objection.
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Senator Duckworth. Thank you, Mr. Chairman. I yield back.
Senator Barrasso. Thank you very much for your questions.
Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman.
In my State and others in the Prairie Pothole Region,
farmers plant in prairie potholes in dry years and plow around
them in wet years; keeps the land in production. But under the
WOTUS Rule, those voluntary efforts would be swept aside by
regulation.
Dr. Josselyn, in your testimony you State that the
threshold for establishing a significant nexus under the WOTUS
Rule is very low. Under the Rule, could any prairie pothole be
regulated?
Mr. Josselyn. Yes, sir. The Rule does take prairie potholes
as a group and says that those areas, not just a single area,
but all of those prairie potholes, similarly situated is the
term that they use, and that can combine into then making a
test that is positive for significant nexus.
Senator Rounds. Is that result consistent with the
recommendation of the panel of scientists who reviewed the
Rule?
Mr. Josselyn. No, on that particular element, where
wetlands of a particular characteristic are all combined, was
not reviewed by the Panel.
Senator Rounds. General Peabody, the Corps has not
regulated any geographically isolated wetlands since the 2001
Supreme Court decision in SWANCC. Is not it true that Corps
counsel raised concerns about how the WOTUS Rule treats
isolated waters? In fact, did not the Corps counsel say that
``this assertion of CWA jurisdiction over millions of acres of
isolated waters undermines the legal and scientific credibility
of the Rule''?
General Peabody. Yes, sir.
Senator Rounds. Just curious, as chairman of the
subcommittee on regulatory oversight, we had extensive hearings
on making certain that the EPA is using the best science
available in the regulatory process and would take into
consideration public comments, especially those from scientists
and State and local officials.
Gentlemen, do you believe the Agency adequately took
scientific opinion into consideration and relied on sound
science when crafting this Rule? Do you believe the Agency
properly incorporated public, agency, and other scientific
comments into its review?
Dr. Josselyn?
Mr. Josselyn. Senator, the Science Panel was really focus
on establishing whether systems are connected, but when it came
to the Rule itself, they looked at arbitrary distances and they
set those up, and those were not issues that the Panel in fact
strongly argued against. I believe that the WOTUS Rule as
finally published was not something that the Panel could have
supported at that point.
Senator Rounds. General Peabody, did that come into the
discussion with regard to the Corps of Engineers and their
analysis?
General Peabody. Yes, sir, it did. One of our greatest
concerns was that notwithstanding incredible effort led by EPA
to amass all this science, do this report, bring in all of
these peer review experts and put them to the Science Advisory
Board review, some of the final judgments in the Corps opinion
at that time did not reflect what the science said. For
example, in my personal view, the most stark example of this
was the 4,000-foot jurisdictional limit that was proposed. I
definitely understood the desire to provide clarity; I think
that is a laudable goal. The challenge is that under the
significant nexus standard, which legal counsel told me and I
understood to be the common view of the administration to be
the overriding legal standard that would apply, that you cannot
have such a clear distinction, a fixed distance that is not
supported in the underlying science. That was of great concern
to us that was making the Rule legally vulnerable.
Senator Rounds. Thank you.
I want to change subjects just a little bit.
Mr. O'Mara, I am just curious, are you familiar with the
Conservation Reserve Program?
Mr. O'Mara. Absolutely.
Senator Rounds. I think one of the finest conservation
products this Country has ever had. Set-aside land, many of it
some of the least productive farm land, the most at risk with
drought or flood, and basically you put it back into grassland
and you set it there for a period of up to 10 years. Farm bill
coming up. Would you give me your thoughts about the value with
regard to water resources and what it does for water if the
Conservation Reserve Program and whether or not it is an
effective way to actually help in a cooperative effort to make
for clean water and basically a good sound conservation
practice?
Mr. O'Mara. Thank you, Senator. As someone who pheasant
hunts in your great State, I appreciate it greatly. The water
benefits are huge. If you are able to protect lands through
those types of programs and not have additional nutrients
coming onto the landscape, it is a great way to prevent
pollution in a very collaborative way. One of the challenges is
that in the last few farm bills we have seen those programs
cut, and the amount of dollars going to the Dakotas has gone
down precipitously. I would much rather have folks getting a
little bit of incentive to have their land growing ducks and
pheasants, as opposed to being marginal and kind of hard to
make commodity prices. We would love to work with your office
to make that a lot bigger in the next farm bill.
Senator Rounds. Thank you.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Rounds.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
Professor Kopocis, if you look at the Supreme Court
decisions on point, the three major ones are Riverside Bayview,
the Northern Cook County decision, and Rapanos. Across all of
those three decisions has any Supreme Court Justice ever held
that actual navigability is the proper standard under the Clean
Water Act?
Mr. Kopocis. No, sir.
Senator Whitehouse. Not one.
Mr. Kopocis. Not one.
Senator Whitehouse. If an administrative agency were to try
to follow that standard and then there was a challenge in
court, how would it predictably turn out?
Mr. Kopocis. Well, I assume it would not be upheld because
it would be contrary to the views of the three times the
Supreme Court has spoken.
Senator Whitehouse. We can agree that the Rapanos decision
left much to be desired in terms of clarity. It was a plurality
situation with no majority decision, and you have to decipher
the different parts to pull the meaning out of it. It is my
understanding that every single circuit court that has looked
at this has decided that the Kennedy rule, the significant
nexus rule, is the operative rule to extract from the Rapanos
decision. Is that your view of the law as well?
Mr. Kopocis. Every circuit court that has opined has said
that the Agency's use of the Kennedy test was appropriate.
Senator Whitehouse. Okay. Significant nexus is obviously
something different than actual navigability. If we are to
hypothesize a seasonal stream, and you know every year in the
rainy season it is going to run down into the navigable water,
is it not necessary and logical and should not the people who
live and recreate in the navigable water be able to count on
the Federal Government saying, no, you can not dump pollutants
in the dry season into that streambed, when we all know
perfectly well that when the rains come it is all going to be
washed down into the navigable waters?
Mr. Kopocis. Yes. It is simply physically impossible and
technically impossible to protect the water quality of the
navigable waters without protecting at least some of the
tributaries that feed into it.
Senator Whitehouse. From a practical point of view, Mr.
O'Mara, that is what the hunters and the fishers and the people
who live by and swim and boat in our lakes and other freshwater
resources expect, is it not?
Mr. O'Mara. Absolutely. If you look at the millions of jobs
and the billions of dollars of economic activity, if there is
no water quality, there is no fish. If there is not healthy
wetlands, there is no ducks. I mean, it comes down to the
basics.
Senator Whitehouse. If the Federal Government sat by and
let polluters dump pollutants into a streambed when everybody
would know perfectly well that when the rains came that would
go down into the navigable and recreational waters and ruin the
public's enjoyment of that, how would your millions of members
feel about how responsible the Federal Government had been in
letting that happen?
Mr. O'Mara. We have done polling on it among sportsmen and
women across the Country, and more than 80 percent of sportsmen
and women support protecting those streams for that reason,
because they do not want to have the places they love and the
places they depend on economically being destroyed by the
pollution.
Senator Whitehouse. Foreseeing rain is not too challenging
a project to expect the Federal Government to be able to
achieve, correct?
Mr. O'Mara. More of it to come.
Senator Whitehouse. Yes, more of it to come.
Now, we also have something in common from your previous
life. You are a Delawarean, if that is the right word, and I am
a Rhode Islander. Both of our States are coastal States and
both of our States are downstream States. If the EPA is not
actively defending upstream conditions outside of our States,
who looks out for us in our small downstream States?
Mr. O'Mara. The challenge we have, as Senator Carper often
says, we are kind of the tailpipe on the air emission side and
kind of the sewer on the water side. I mean, the State of
Delaware could eliminate every single source of pollution in
its States that is winding up in its waterways and still not
have a healthy estuary for the Delaware or for its part of the
Chesapeake. Unless you are having like regional compacts and
basically voluntary agreements with adjacent States, there is
no way to make sure that we actually have healthy waterways.
Senator Whitehouse. Professor Kopocis, back to lawyering
again. In my hypothesis that a foreseeable rain is going to
wash a known pollutant into navigable waters, do you think that
a WOTUS Rule that failed to protect against that foreseeable
event would pass scrutiny under the significant nexus test?
Mr. Kopocis. No, sir, I do not.
Senator Whitehouse. Would not make any sense, would it?
Mr. Kopocis. No, sir. In fact, those kinds of concepts were
specifically rejected by Justice Kennedy, saying that they made
little sense and were unpersuasive.
Senator Whitehouse. To some extent, a lot of the
complaining that has been done about the EPA rule here is
actually complaining about the significant nexus test, but that
is the law, correct?
Mr. Kopocis. Yes, sir, it is.
Senator Whitehouse. Okay. My time is up.
Thank you, Chairman.
Senator Barrasso. Thank you very much, Senator Whitehouse.
Senator Ernst.
Senator Ernst. Thank you, Mr. Chairman, and thank you very
much, everyone, for this great discussion today.
I do want to point out we still have the Clean Water Act,
and I hope that within that Act we are not allowed to dump
pollutants willy nilly. I think what we are talking about right
now is the expanded definition of waters of the U.S., not the
original Clean Water Act. I hope we are protecting our citizens
without that expanded definition. I think that is what we are
dealing with today.
Mr. Josselyn, as part of the propaganda campaign that the
Government Accountability Office found to be illegal, the Obama
EPA tried to get people to believe that unless they regulate
ephemeral water, which, by definition, is a stream that flows
only briefly during and following a period of rainfall, so
essentially rainwater runoff, that the drinking water of 117
million people would be at risk. Mr. Kopocis and Mr. O'Mara
repeat this claim in their testimony.
EPA put up a map on their website to support this claim,
and this is this chart right here. However, if you read EPA's
summary of the analysis, which is, of course, buried on a
different web page than this map, you find out that EPA based
this claim on a study of streams that are visible at medium
resolution, which is what you see behind me. At this scale, you
are only going to see major streams.
Does a study of those major streams at that scale have
anything to do with ephemeral streams?
Mr. Josselyn. Thank you, Senator. In response to your
question, the map scale is about 100,000 scale. You know, when
I was a Boy Scout, I used 7.5 minute quadrangle maps, and they
have a scale of 24,000. The scale is quite large, so that is a
problem with that.
Also, the data base that they used I am very familiar, the
NHD data base plus. That data base really only maps perennial
and intermittent streams. In fact, the definition that they use
is any stream that flows more than after immediate rainfall.
Ephemeral streams are defined as streams which flow only after
rainfall. The NHD data base that they used ignores those kinds
of features.
The study really, although provides useful information, it
is not accurate in its conclusion.
Senator Ernst. Yes. Thank you very much.
Mr. Tseytlin, as a legal matter, is it correct to say that
EPA has to regulate ephemeral streams to protect drinking
water?
Mr. Tseytlin. Absolutely not. Also with regard to the
drinking water point in particular, of course, Federal law
outside the Clean Water Act, the Federal Safe Drinking Water
Act is the primary Federal protection. I believe that the focus
on drinking water is part of that GAO found illegal propaganda
campaign, which was meant to drum up, illegally again, support
for the WOTUS Rule.
Senator Ernst. Yes. Thank you.
Mr. Tseytlin, the Obama EPA claimed that farmers did not
need to worry about the WOTUS Rule because it exempted
``ordinary farming activities from permits.'' Are you familiar
with the Duarte case in California?
Mr. Tseytlin. I am.
Senator Ernst. In that case, the Corps and the Department
of Justice claimed that a farmer needed a permit to plow his
own land because the tops, again, right here, the tops of the
plowed furrows dry out in the sun and constitute, and no jokes,
folks, mini mountain ranges. Mini mountain ranges. Plowing does
not qualify as an ordinary farming activity. My farmers would
beg to differ.
Here is a picture of those mountain ranges from the report
written by DOJ's expert witness. I guess under this definition
Iowa is one of the most mountainous States in the United
States.
What is left of the ordinary farming exemptions if you can
not even plow your own soil?
Mr. Tseytlin. You are exactly right, Senator, and that is
exactly the danger of expanding the jurisdictional reach of the
Clean Water Act, which is what the WOTUS Rule tries to do,
which is why the American Farm Bureau and the Wisconsin Farm
Bureau and farmers all over the Country oppose very strongly
the WOTUS Rule.
Senator Ernst. Yes. By these definitions, the entire
expanded definition, 97 percent of the State of Iowa is
regulated by that expanded definition and considered waters of
the U.S.
Thank you very much.
Thank you, Mr. Chair.
Senator Fischer. [Presiding.] Thank you, Senator Ernst.
Senator Harris.
Senator Harris. Thank you.
I have three committee meetings all scheduled at the same
time this morning.
Mr. Kopocis, thank you for being here. The Clean Water Act
is very important to me, and the Act ensures, of course, that
there will be environmental justice for all communities. It
ensures that all Americans have access to clean and safe
drinking water. However, the Clean Water Act has lacked clarity
in defining jurisdiction for Federal agencies to protect the
sources of drinking water.
During your tenure at the EPA, I understand that you also
worked closely on the Clean Water Rule. Do you believe that the
Clean Water Rule was promulgated to provide clarity to the
Clean Water Act?
Mr. Kopocis. The primary purpose of issuing that rule was
to provide greater clarity, certainty, and predictability that
was lacking in the post-Rapanos world.
Senator Harris. Thank you.
The Obama administration finalized the Clean Water Rule
after extensive analysis of legal statute, after multiple
agencies' technical expertise, millions of comments during the
public comment period, and the best available peer-reviewed
science. This past Saturday Americans from all over the Country
marched in support of science and its value in creating sound
policy like the Clean Water Rule.
Could you please explain to me the extent to which the EPA,
during your tenure, used science-driven research into the final
determination of the Clean Water Rule? In the event that this
Administration decides to reevaluate the Clean Water Rule, what
must the EPA do to guaranty that any future version of the
Clean Water Rule is held to the same standard?
Mr. Kopocis. The agencies looked at what the Supreme Court
has said and recognized that they needed to do a better
analysis of the science of how waters were interconnected with
each other and the impacts of upstream waters on downstream
waters. The Agency challenged its Office of Research and
Development to do an extensive research on the literature as to
what existed to inform the Agency. ORD looked at about 1,200
different peer-reviewed documents in coming up with its
synthesis of the Science Report.
Unfortunately, science does not address issues such as
significant nexus. Science talks about how waters are
interrelated to each other. As Mr. Josselyn said earlier, one
of the recommendations of the SAB is that the Agency needed to
recognize that waters are connected on a continuum, that there
is not a single point that you can place on that continuum if
you are looking at it from a purely science background.
However, the agencies use science to inform its policy
decisions. Science was not going to decide the issue
necessarily for the agency because the Agency had to operate
within the confines of a statute and the guidance from the
Supreme Court. Science was the informative information that the
Agency used to come up with Rule going forward.
Senator Harris. Do you have any instruction for the EPA, or
guidance or good advice, if they should reevaluate the Clean
Water Rule?
Mr. Kopocis. Well, my first recommendation would be to do
not do it, but they have announced that they are going to.
Senator Harris. They seem intent on doing it.
Mr. Kopocis. Absent that, then I would suggest that they
take a look at the science. If there is new and better science,
then I would encourage the Agency to look at it. If what the
Agency chooses to do instead, as is stated in the Executive
Order, is rely on Justice Scalia's plurality opinion, that will
greatly narrow the scope of the Clean Water Act over what it
is, and that will be a narrowing that is contrary to the
science that was developed by us in the prior Administration.
Senator Harris. Thank you.
Could you describe the process of public engagement that
was followed in proposing and issuing the Clean Water Rule, and
what feedback the EPA received? Could you share with the
Committee your understanding of what sort of process the
current Administration has committed to it in its efforts to
replace the Rule? Emphasis here on the public process.
Mr. Kopocis. What we did, we had extensive meetings with
all interested parties, State and local governments, etcetera,
before the Rule was drafted and put out for public comment.
During the public comment period, which lasted over 200 days,
we met with interested parties again. We had over 400 public
meetings or phone calls, teleconferences. I personally, in my
capacity, attended about 70 of those. We visited farms; we went
out in the field to talk to people. We evaluated about, I
believe the final number was close to 1.3 million comments on
the Rule. We responded to those comments in a several hundred
page long response to comments document that was prepared
jointly by us and the Army Corps. We took all of that
information to develop what is the final Rule.
I cannot speak to the plans of the current Administration;
however, I have not yet seen signs that there is that same
level of public involvement because those meetings have not yet
occurred.
Senator Harris. Thank you.
Thank you all.
Senator Fischer. Thank you, Senator Harris.
Dr. Josselyn, today, General Peabody has testified that the
Corps staff were concerned that the bright line geographic
tests in the WOTUS Rule could include water that should not be
regulated and could exclude water that should be regulated. I
want to focus on whether the WOTUS Rule would actually exclude
any water.
You note in your testimony that the EPA found ``the vast
majority of the Nation's water features were located within
4,000 feet of a covered tributary, traditional navigable water,
interstate water, or territorial sea.'' That finding is
supported by the analysis performed by Geosyntec for the
American Farm Bureau Federation in a sampling of States.
Specifically, Geosyntec analysis shows that 100 percent of the
land area of Virginia is located within 4,000 feet of something
that meets the WOTUS Rule definition of tributary. The same is
true for 99.7 percent of Missouri, 99 percent of Montana, 99
percent of Pennsylvania, as Senator Ernst said, 97 percent of
Iowa, 95 percent of Oklahoma, 95 percent of California, and 92
percent of Wisconsin.
You are from California, so I would like to use that as an
example. Based on the definition of significant nexus, which we
have tossed around here today, but based on that definition in
the WOTUS Rule, and assuming that the Geosyntec analysis is
correct, would you agree that any water located in 95 percent
of the land in California could be regulated under that Rule?
Mr. Josselyn. Yes, Senator. Thank you. We also did an
analysis in the San Francisco Bay area, and we found that all
the land in the San Francisco Bay area would be covered under
that 4,000-foot standard, except for the core urban areas of
San Francisco, Oakland, and San Jose. It is quite true, and the
significant nexus test itself has a very low threshold in terms
of what would be required to have a significant nexus, so most
of those areas would be regulated.
Senator Cardin. Could I ask my colleague to just yield for
one moment? I am not going to be able to ask questions because
of time restrictions. I would just ask consent that the
American River statement be made part of the record, and I will
ask my questions for the record.
Senator Fischer. Without objection.
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Senator Fischer. What about States that are not included in
that analysis? Nebraska was not included. Can you conclude that
over 90 percent of the State would be regulated under that
final WOTUS Rule?
Mr. Josselyn. In fact, in the WOTUS Rule, in the Preamble,
they talk about the fact that the 4,000-foot limit was meant to
include most all of the wetlands in any State.
Senator Fischer. Mr. Tseytlin, do you believe that the
Clean Water Act regulates all water in a State?
Mr. Tseytlin. That is not within the coverage of the Act.
The Act applies to navigable waters and, under Justice
Kennedy's approach, waters that have a significant nexus to
those navigable waters.
Senator Fischer. Dr. Josselyn, in November 2015, 4 months
after the final Rule was published, EPA added a review of 199
jurisdictional determinations to the WOTUS Rule docket, and in
this review EPA found that only 2 positive jurisdictional
determinations would change to negative, affecting
approximately 1 acre of wetlands. EPA used this analysis to
show that the Rule would not cutoff jurisdiction.
However, the EPA's analysis also shows how the Rule expands
Federal control over land, and of the 199 jurisdictional
determinations EPA evaluated, 57 were negative. In 47 of those
57 negative jurisdictional determinations, the Corps concluded
that Federal jurisdiction did not exist because there was no
surface connection to navigable water.
Based on the definition of significant nexus under the
WOTUS Rule, the new one, do you agree that most of the 47
negative jurisdictional determinations evaluated by the EPA
could become positive jurisdictional determinations under the
final Rule?
Mr. Josselyn. Senator, I did look at that study and the
WOTUS Rule also includes shallow subsurface groundwater
connections as a potential, so that could make some of those
features that had isolated surface water to be connected.
Second, the WOTUS Rule expands the definitions of
tributaries, so there could be far more tributaries mapped in
proximity to these features and that could also expand the
jurisdiction for those areas.
Senator Fischer. Thank you.
Mr. Tseytlin, the Department of Justice used the November
2015 document to defend the Rule in the brief that they filed
on January 13th of this year. Would the EPA's post hoc
rationalization of their 4,000-foot threshold be credible to a
court? What is your opinion on that?
Mr. Tseytlin. It would not be legally permissible to be
stated in court under the Supreme Court's Chenery case. A rule
can only be upheld on the basis of the record that was before
the Agency wanting to issue the final Rule.
Senator Fischer. Okay. Thank you very much.
Mr. Chairman, I hand you back your gavel. Thank you.
Senator Barrasso. [Presiding.] Thank you, Senator Fischer.
Appreciate your line of questioning and taking the chair.
Mr. Tseytlin, Mr. Kopocis just testified that the EPA
relied on the Corps' political appointee instead of the Corps'
experts. If the Rule is not based on agency experts, is it
arbitrary and capricious?
Mr. Tseytlin. Well, the arbitrary and capricious nature of
Rule reviews the entire record, and as I believe the testimony
of some of my fellow colleagues here says, the record does not
support the underpinnings of the Rule. Furthermore, as
Professor Kopocis conceded, the science that EPA relied upon
cannot be the basis for significant nexus finding because that
was not what the Science Report was doing. With regard to the
significant nexus finding, that is a legal conclusion. As the
Sixth Circuit preliminarily concluded and as the District of
North Dakota preliminarily concluded, the legal basis for the
Rule was lacking.
Senator Barrasso. Mr. Kopocis also testified that Justice
Kennedy's opinion controls the definition of waters of the
United States. Is the WOTUS Rule consistent, do you believe,
with Justice Kennedy's opinion?
Mr. Tseytlin. It is not consistent. I gave an example
earlier, the most obvious example, which is that Justice
Kennedy said in no uncertain terms in Rapanos, Corps, you can
not base Federal jurisdiction on adjacency to tributaries. They
did the exact same thing here and they doubled-down on it by
adding the 100-year floodplain concept, which, to be clear, the
connection is based on a connection that happens on a once in a
century rainstorm.
Senator Barrasso. Mr. Kopocis, I see you wanting to join
in.
Mr. Kopocis. Yes. Yes, if I could. I wanted to draw the
distinction, though, on Justice Kennedy's opinion. Justice
Kennedy said that in the situation that was presented to him,
that the Corps had asserted jurisdiction based solely on the
grounds of adjacency to a tributary. He said that that was not
the basis on which they should have made their decision;
instead, they should have made their decision based on the
significant nexus presence or lack of presence, and that he
suggested that that was the correct test.
I do not look at Justice Kennedy's opinion in the same way
in saying that he said that you could not look at adjacency to
tributaries. What he said was you should not have solely relied
on that and you looked at the wrong test.
Senator Barrasso. Mr. Tseytlin, anything else that you
would like to add?
Mr. Tseytlin. Right. This is what Justice Kennedy said. He
said, ``Drains, ditches, streams remote from entering navigable
in fact waters and carrying only minor volumes toward it are
not a sufficient basis, especially when it is done on
adjacency.''
The Rule, on its face, covers drains, ditches, remote
streams remote from entering navigable water and carrying only
minor volumes. It could not be clearer.
Senator Barrasso. General Peabody, your written testimony
says the Corps does not believe that the Rule and Preamble, as
ultimately finalized, ``were viable from a factual, scientific,
and legal basis.'' Then you went on to say it would be
incredibly difficult for Corps leaders, regulatory and legal
staff, to advance and defend this Rule.
You have also testified that statements and
characterizations of the WOTUS Rule as a joint product of EPA
and the Corps are flat out wrong. Given these facts, do you
agree that the WOTUS Rule should be withdrawn?
General Peabody. Senator, I believe a lot has transpired
since I retired almost 2 years ago. It is now in litigation and
I think the facts of the litigation would have to be considered
to make that policy judgment. It was my position that the Corps
is responsible for executing policy decisions before they are
made. It is also the responsibility of Corps leaders to ensure
that the Corps' professional judgment is clearly understood,
and that was my primary motivator in writing those memoranda.
Senator Barrasso. It is not just the final Rule, to me,
that needs to be withdrawn, because on January 13th of this
year the Department of Justice filed a brief that makes the
same statements about the Corps' involvement in the Rule, and I
believe that brief also needs to be withdrawn.
General Peabody. Sir, to be clear, it was the Corps'
opinion, and I believe this is unanimous of all the people I
consulted with, that the Rule needed to be changed in order to
be scientifically supportable and legally defensible.
Senator Barrasso. The Rule is going to regulate any water
that meets the new definition of adjacent water. In a stark
departure from current practice, this means that water or
wetlands do not need to be connected to any other water to be
regulated, just needs to be within a certain distance.
General Peabody, on April 2015, a memo from the Army Corps
counsel to you says, ``Federal courts may find that common
sense dictates that a water body located 1,500 feet from a
stream''--and I think, Mr. Tseytlin, you referred to this as
the five football fields that you have been referring to in
your testimony as well as your answering of questions--``1,500
feet from a stream is too far away from that stream to be
defined as neighboring and, thus, adjacent to that stream.'' It
went on to say that ``non-science based tests based on
distances from other water makes the draft final Rule legally
vulnerable.''
Are you aware of any analysis by anyone that says that any
water or wetland located five football fields away from any
other regulated water has a significant nexus to that navigable
water?
General Peabody. Is this for me, sir?
Senator Barrasso. Yes, sir.
General Peabody. Sir, the only analysis I am aware of, and
I would defer to Dr. Josselyn, but in the Connectivity Report I
believe it states that there is scientific evidence that 300
feet can establish connectivity for a variety of scientific
reasons. That is the only analysis I am aware of that addresses
a specified distance.
Senator Barrasso. Three hundred feet, but not five times
that.
General Peabody. Sir, I was not aware at that time, and I
am not aware now, of any basis for a 1,500-foot or 4,000-foot
or other distance beyond the 300 feet I just discussed.
Senator Barrasso. Thank you.
Senator Carper.
Senator Carper. Thanks so much.
I am going to ask a question of Collin O'Mara. Collin
O'Mara did a great job as our Secretary of the Department of
Natural Resources and Environmental Control, a role previously
filled by the fellow sitting right behind me, Christophe Tolou,
so we are sort of getting the band back together here this
morning.
One of the things that Collin and Christophe talk a lot
about are secrets to being married for a long time. When Collin
got married, he sent a handwritten note with a gift to he and
his wife last year, I think, and I think I recommended him to
keep in mind the three Cs: communicate, compromise,
collaborate. The secret to a long marriage. It is also the
secret to a vibrant democracy.
I listened to the testimony here today, and we are talking,
but I do not know that we are in a collaborative mood here. I
do not feel a sense of compromise. This is kind of like we are
talking past each other.
Collin, with that in mind, one of the things we tried to do
in Delaware with our friends from other States, things we try
to do in Delaware is like embrace the three Cs. We kind of call
it the Delaware way and it is part of the secret for our
success.
Am I just misreading this or is there something to what I
am saying?
Mr. O'Mara. This is incredibly complicated. There is a
reason why the Supreme Court had five different opinions in a
single decision. There is a reason why it has taken years to
get to this point.
The science, I think, is fairly clear, and I think the
clarity that is offered through the Rule does offer a path
forward. I am not going to say there are not enforcement
mistakes that are made. I am not going to defend every single
action of the agencies. I do think if we could get to a
conversation about the focus of the scope of where the
pollutants are coming from and how we can actually have healthy
water in this world and then complement that work with
investments and things like the State Revolving Funds and
collaborative programs where you could actually achieve healthy
water. I think at the end of the day it is going to take good
folks being around the table.
I do think that the EPA process was exhaustive. I think
they did a very good job going out. It is something that
affects a lot of people, though.
Senator Carper. They came to Delaware. We actually had a
meeting on a farm and a bunch of farmers around us. We had the
leadership of the Delaware Farm Bureau and I thought it was
pretty amazing. My guess is it is probably not the only farm
they went to among those 400 stakeholders they met with.
Thank you.
Let me ask a question of Mr. Kopocis. I think I may have
been out of the room when Senator Ernst asked this question,
but I think she may have cited a number of examples of farming
activities that she believes cannot be conducted under the
Clean Water Rule that we are discussing today. I would just ask
is plowing allowed under the Rule?
Mr. Kopocis. Yes. Yes. The statute specifically provides a
permit exemption for normal farming practices, including
plowing.
Senator Carper. All right, thank you. Is the definition of
waters of the U.S. more expansive than it was prior to the 2001
and 2006 court decisions? Is it more expansive or less?
Mr. Kopocis. The new Rule is less expansive than the prior
Rule.
Senator Carper. Why do you suppose we hear so much from
around the Country that would suggest otherwise?
Mr. Kopocis. Well, Senator, it is difficult to say. I do
think that some of that is based on while the prior Rule itself
was more expansive in a post-SWANCC and post-Rapanos world, the
agencies were perhaps administering it in a more narrow way.
The Bush era guidance in the post-Rapanos world allowed for the
assertion of jurisdiction over isolated waters, but created an
incredibly cumbersome way to do it, and that is why earlier the
Committee heard that the agency had not asserted jurisdiction
over those waters. Those waters were still able to be analyzed
for jurisdiction; they simply were not in fact being done.
Senator Carper. All right. A question, if I could, Mr.
Kopocis, for you and General Peabody. Would a new rule based on
Justice Scalia's opinion be more expansive or more restrictive
than the Clean Water Rule?
Mr. Kopocis. Well, a rule based solely on Justice Scalia's
opinion would be considerably narrower than the Clean Water
Rule, and in our many conversations with the Department of Army
and the Corps, what we heard repeatedly was a concern that in
fact the limitations that were being written into the Clean
Water Rule made the Rule too restrictive. It seems to me that a
rule written solely on the Scalia opinion would be even more
restrictive than what is currently out.
Senator Carper. Okay.
General Peabody, would you take a shot at the same
question? I will just restate the question. Would a new rule
based on Justice Scalia's opinion be more expansive or more
restrictive than the Clean Water Rule?
General Peabody. Senator, I believe that the Corps would
need to analyze that based on all the jurisdictional
determinations that it has made; however, I do think that it is
probably fair to draw that supposition. I would want to see the
evidence before I was sure of that one way or the other.
Senator Carper. All right.
General Peabody. I do not have any evidence one way or the
other.
Senator Carper. Okay.
My time has expired again. I have some questions I am going
to submit for the record, and would appreciate the time to
respond. Did you want to say something, Ken?
Mr. Kopocis. Well, I just wanted to make sure that the
Committee understood that EPA and the Army and Corps worked
very closely together. Obviously, there were some differences
of opinion as the Rule was coming to an end. We still, on
behalf of my time at EPA, we still worked very hard to try to
maintain a collaborative effort. I do not want the Committee to
go away without remembering that since 1979, when Attorney
General Civiletti issued his opinion, that the final, the final
responsibility for determining what is a water of the United
States, the jurisdiction of the Clean Water Act, belongs to
EPA.
Senator Carper. All right, thanks.
General Peabody. Senator, if I could add to that. I also
want to clarify that Mr. Kopocis and I worked many issues
during the time that we served in government, and we did not
always agree, but we always worked hard to try to find
solutions to those issues. The limited nature of the engagement
of the Corps in this particular instance was atypical of my
experience working in government.
Senator Carper. Well, I appreciate that clarification.
Thank you so much.
Senator Barrasso. Well, I want to thank all the witnesses
for being here today. If there are no more questions, members
are also allowed, as Senator Carper just mentioned, will be
submitting followup questions for the record. The hearing
record will be open for 2 weeks.
I want to thank all of you for being here.
The hearing is adjourned.
[Whereupon, at 12:05 p.m. the committee was adjourned.]
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