    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

    THE ADMINISTRATION'S PRIORITIES AND POLICY INITIATIVES UNDER THE CLEAN
                                   WATER ACT

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

                                    (116-31)

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                        WATER RESOURCES AND ENVIRONMENT

                                     OF THE

                                  COMMITTEE ON
                       TRANSPORTATION AND INFRASTRUCTURE
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               SEPTEMBER 18, 2019

                                   __________

                           Printed for the use of the
                 Committee on Transportation and Infrastructure

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

         Available online at: https://www.govinfo.gov/committee/house-
         transportation?path=/browsecommittee/chamber/house/committee/
                                 transportation

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    40=826 PDF                  WASHINGTON : 2020

    --------------------------------------------------------------------------------------

                 COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                        PETER A. DeFAZIO, Oregon, Chair

    ELEANOR HOLMES NORTON,               SAM GRAVES, Missouri
      District of Columbia               DON YOUNG, Alaska
    EDDIE BERNICE JOHNSON, Texas         ERIC A. ``RICK'' CRAWFORD,
    ELIJAH E. CUMMINGS, Maryland         Arkansas
    RICK LARSEN, Washington              BOB GIBBS, Ohio
    GRACE F. NAPOLITANO, California      DANIEL WEBSTER, Florida
    DANIEL LIPINSKI, Illinois            THOMAS MASSIE, Kentucky
    STEVE COHEN, Tennessee               MARK MEADOWS, North Carolina
    ALBIO SIRES, New Jersey              SCOTT PERRY, Pennsylvania
    JOHN GARAMENDI, California           RODNEY DAVIS, Illinois
    HENRY C. ``HANK'' JOHNSON, Jr.,      ROB WOODALL, Georgia
    Georgia                              JOHN KATKO, New York
    ANDRE CARSON, Indiana                BRIAN BABIN, Texas
    DINA TITUS, Nevada                   GARRET GRAVES, Louisiana
    SEAN PATRICK MALONEY, New York       DAVID ROUZER, North Carolina
    JARED HUFFMAN, California            MIKE BOST, Illinois
    JULIA BROWNLEY, California           RANDY K. WEBER, Sr., Texas
    FREDERICA S. WILSON, Florida         DOUG LaMALFA, California
    DONALD M. PAYNE, Jr., New Jersey     BRUCE WESTERMAN, Arkansas
    ALAN S. LOWENTHAL, California        LLOYD SMUCKER, Pennsylvania
    MARK DeSAULNIER, California          PAUL MITCHELL, Michigan
    STACEY E. PLASKETT, Virgin Islands   BRIAN J. MAST, Florida
    STEPHEN F. LYNCH, Massachusetts      MIKE GALLAGHER, Wisconsin
    SALUD O. CARBAJAL, California, Vice  GARY J. PALMER, Alabama
    Chair                                BRIAN K. FITZPATRICK, Pennsylvania
    ANTHONY G. BROWN, Maryland           JENNIFFER GONZALEZ-COLON,
    ADRIANO ESPAILLAT, New York            Puerto Rico
    TOM MALINOWSKI, New Jersey           TROY BALDERSON, Ohio
    GREG STANTON, Arizona                ROSS SPANO, Florida
    DEBBIE MUCARSEL-POWELL, Florida      PETE STAUBER, Minnesota
    LIZZIE FLETCHER, Texas               CAROL D. MILLER, West Virginia
    COLIN Z. ALLRED, Texas               GREG PENCE, Indiana
    SHARICE DAVIDS, Kansas
    ABBY FINKENAUER, Iowa
    JESUS G. ``CHUY'' GARCIA, Illinois
    ANTONIO DELGADO, New York
    CHRIS PAPPAS, New Hampshire
    ANGIE CRAIG, Minnesota
    HARLEY ROUDA, California

                                      (ii)

                Subcommittee on Water Resources and Environment

                     GRACE F. NAPOLITANO, California, Chair

    DEBBIE MUCARSEL-POWELL, Florida,     BRUCE WESTERMAN, Arkansas
    Vice Chair                           DANIEL WEBSTER, Florida
    EDDIE BERNICE JOHNSON, Texas         THOMAS MASSIE, Kentucky
    JOHN GARAMENDI, California           ROB WOODALL, Georgia
    JARED HUFFMAN, California            BRIAN BABIN, Texas
    ALAN S. LOWENTHAL, California        GARRET GRAVES, Louisiana
    SALUD O. CARBAJAL, California        DAVID ROUZER, North Carolina
    ADRIANO ESPAILLAT, New York          MIKE BOST, Illinois
    LIZZIE FLETCHER, Texas               RANDY K. WEBER, Sr., Texas
    ABBY FINKENAUER, Iowa                DOUG LaMALFA, California
    ANTONIO DELGADO, New York            BRIAN J. MAST, Florida
    CHRIS PAPPAS, New Hampshire          GARY J. PALMER, Alabama
    ANGIE CRAIG, Minnesota               JENNIFFER GONZALEZ-COLON,
    HARLEY ROUDA, California               Puerto Rico
    FREDERICA S. WILSON, Florida         SAM GRAVES, Missouri (Ex Officio)
    STEPHEN F. LYNCH, Massachusetts
    TOM MALINOWSKI, New Jersey
    PETER A. DeFAZIO, Oregon (Ex
    Officio)

                                     (iii)

                                    CONTENTS

                                                                       Page

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

                     STATEMENTS OF MEMBERS OF THE COMMITTEE

    Hon. Grace F. Napolitano, a Representative in Congress from the
      State of California, and Chairwoman, Subcommittee on Water
      Resources and Environment:

        Opening statement............................................     1
        Prepared statement...........................................     2
    Hon. Bruce Westerman, a Representative in Congress from the State
      of Arkansas, and Ranking Member, Subcommittee on Water
      Resources and Environment:

        Opening statement............................................     3
        Prepared statement...........................................     4
    Hon. Peter A. DeFazio, a Representative in Congress from the
      State of Oregon, and Chairman, Committee on Transportation and
      Infrastructure:

        Opening statement............................................     5
        Prepared statement...........................................     8
    Hon. Sam Graves, a Representative in Congress from the State of
      Missouri, and Ranking Member, Committee on Transportation and
      Infrastructure, prepared statement.............................   105
    Hon. Eddie Bernice Johnson, a Representative in Congress from the
      State of Texas, prepared statement.............................   105

                                   WITNESSES
                                    Panel 1

    Hon. David Ross, Assistant Administrator, Office of Water, U.S.
      Environmental Protection Agency:

        Oral statement...............................................    10
        Prepared statement...........................................    11

                                    Panel 2

    Maia Bellon, Director, Department of Ecology, State of
      Washington:

        Oral statement...............................................    63
        Prepared statement...........................................    64
    Becky W. Keogh, Secretary, Department of Energy and Environment,
      State of Arkansas:

        Oral statement...............................................    67
        Prepared statement...........................................    69
    Ken Kopocis, Associate Professor, Washington College of Law,
      American University:

        Oral statement...............................................    71
        Prepared statement...........................................    73
    Michael Hickey, Hoosick Falls, NY:

        Oral statement...............................................    76
        Prepared statement...........................................    78
    Pamela Nixon, President, People Concerned About Chemical Safety:

        Oral statement...............................................    82
        Prepared statement...........................................    84
    Geoffrey R. Gisler, Senior Attorney, Southern Environmental Law
      Center:

        Oral statement...............................................    86
        Prepared statement...........................................    87

                           SUBMISSIONS FOR THE RECORD

    Figure IV-9 from ``Economic Analysis for the Proposed Revised
      Definition of `Waters of the United States' ,'' by the U.S.
      Environmental Protection Agency and Department of the Army,
      December 14, 2018, Submitted for the Record by Hon. Peter A.
      DeFazio........................................................     6
    Images of Toxic Algal Blooms in Florida, Submitted for the Record
      by Hon. Debbie Mucarsel-Powell.................................    25
    State of Georgia, et al. v. Andrew R. Wheeler, et al., No. 2:15-
      cv-00079 (S.D. Ga.), Submitted for the Record by Hon. Rob
      Woodall........................................................    34
    Submitted for the Record by Hon. Bruce Westerman:

        Letter of September 16, 2019, from Neil L. Bradley, Executive
          Vice President and Chief Policy Officer, U.S. Chamber of
          Commerce...................................................   106
        ``Policy Priorities and Proposals Summary,'' Business Task
          Force on Water Policy, U.S. Chamber of Commerce............   107
        Letter of September 16, 2019, from James W. Tobin III,
          Executive Vice President and Chief Lobbyist, Government
          Affairs and Communications Group, National Association of
          Home Builders..............................................   109
        Statement of the American Forest & Paper Association.........   110
    Submitted for the Record by Hon. Grace F. Napolitano:

        Letters from the U.S. Environmental Protection Agency in
          Response to Letters from the Committee on Transportation
          and Infrastructure.........................................   112
        Statement of Robert Nasdor, Northeast Stewardship and Legal
          Director, American Whitewater..............................   121
        Statement of the Environmental Working Group.................   126

                                    APPENDIX

    Questions from Hon. Peter A. DeFazio to Hon. David Ross,
      Assistant Administrator, Office of Water, U.S. Environmental
      Protection Agency..............................................   129
    Questions from Hon. Lizzie Fletcher to Hon. David Ross, Assistant
      Administrator, Office of Water, U.S. Environmental Protection
      Agency.........................................................   137
    Questions from Hon. Eddie Bernice Johnson to Hon. David Ross,
      Assistant Administrator, Office of Water, U.S. Environmental
      Protection Agency..............................................   140
    Question from Hon. Sam Graves to Hon. David Ross, Assistant
      Administrator, Office of Water, U.S. Environmental Protection
      Agency.........................................................   141
    Questions from Hon. Peter A. DeFazio to Maia Bellon, Director,
      Department of Ecology, State of Washington.....................   142
    Question from Hon. Sam Graves to Maia Bellon, Director,
      Department of Ecology, State of Washington.....................   142
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               September 9, 2019

        SUMMARY OF SUBJECT MATTER

        TO:       Members, Subcommittee on Water Resources and
    Environment
        FROM:   Staff, Subcommittee on Water Resources and
    Environment
        RE:       Subcommittee Hearing on ``The Administration's
    Priorities and Policy Initiatives Under the Clean Water Act''

                                    PURPOSE

        The Subcommittee on Water Resources and Environment will
    meet on Wednesday, September 18, 2019, at 10:00 a.m. in Room
    2167, Rayburn House Office Building, to receive testimony from
    the U.S. Environmental Protection Agency (EPA) and stakeholders
    related to the Administration's priorities and policy
    initiatives under the Clean Water Act.

                                   BACKGROUND

        The EPA has initiated several policy priorities over the
    past two-and-a-half years under the Clean Water Act. Below are
    a few of the issues that have been of interest to Members of
    the Subcommittee on Water Resources and Environment.

    UPDATE TO EPA'S NUTRIENT POLLUTION MANAGEMENT EFFORTS

        The EPA has focused on promoting ``collaborative
    approaches'' to address excess nutrient pollution.\1\ On
    February 6, 2019, EPA announced a new policy memorandum aimed
    at helping states, tribes, and stakeholders use market-,
    incentive-, and community-based programs to address nutrient
    pollution through water quality trading and other programs.
    This new water quality trading memorandum reiterates the
    Agency's support for water quality trading and is one piece of
    a larger collaboration with stakeholders across the country,
    aimed at coordinating federal resources towards addressing
    nutrient pollution.\2\
    ---------------------------------------------------------------------------
        \1\ Nutrient pollution is the process where too many nutrients,
    mainly nitrogen and phosphorus, are added to bodies of water and can
    act like fertilizer, causing excessive growth of algae and impairment
    of water quality. See https://oceanservice.noaa.gov/facts/
    nutpollution.html.
        \2\ See https://www.epa.gov/npdes/frequently-asked-questions-about-
    water-quality-trading
    ---------------------------------------------------------------------------

    WATER REUSE ACTION PLAN

        On February 27, 2019, the EPA announced its intent to
    develop a Water Reuse Action Plan,\3\ with the stated goal of
    leveraging the government's and industry's knowledge to ensure
    the proper management of our Nation's water resources including
    ensuring water availability and mitigating the risks posed by
    droughts through water reuse and other means. On April 17,
    2019, the EPA asked for public input on the Water Reuse Action
    Plan, with the docket closing on July 1.\4\ A draft of the Plan
    is expected to be released in September of this year.\5\
    ---------------------------------------------------------------------------
        \3\ See https://www.epa.gov/waterreuse/water-reuse-action-plan
        \4\ See https://www.epa.gov/waterreuse/water-reuse-action-plan.
        \5\ Lape, Jeffrey. U.S. Environmental Protection Agency, Office of
    Science and Technology. April 17, 2019. Memorandum Posting EPA-HQ-OW-
    2019-0174 to Regulations.gov for Public Access (Development of a Draft
    Water Reuse Action Plan).
    ---------------------------------------------------------------------------

    STEAM ELECTRIC EFFLUENT LIMITATIONS GUIDELINES

        Effluent Limitation Guidelines (ELGs) are national
    wastewater discharge treatment standards developed by the EPA
    on an industry-by-industry basis.\6\ These are technology-based
    regulations intended to represent the greatest pollutant
    reductions that are economically achievable for an industry.
    The standards for direct dischargers are incorporated into
    National Pollutant Discharge Elimination System (NPDES) permits
    issued by States and EPA regional offices and permits or other
    control mechanisms for indirect dischargers.
    ---------------------------------------------------------------------------
        \6\ See https://www.epa.gov/eg/learn-about-effluent-guidelines.
    ---------------------------------------------------------------------------
        In 2015, the EPA finalized a rulemaking for a new ELG for
    steam electric power generating facilities; \7\ however, in
    response to petitions from industry for reconsideration and an
    administrative stay of provisions of EPA's 2015 final rule, the
    EPA announced it would initiate a new rulemaking that may
    result in revisions to the 2015 rule.\8\ Specifically, the EPA
    may revise the best available technology economically
    achievable effluent limitations and pretreatment standards for
    bottom ash transport water and flue gas desulfurization
    wastewater for existing sources. According to the regulatory
    information website of the Office of Information and Regulatory
    Affairs (OIRA), Office of Management and Budget, the EPA
    planned to release a Notice of Proposed Rulemaking in June
    2019,\9\ but still has not. The final rule is anticipated in
    August 2020.\10\
    ---------------------------------------------------------------------------
        \7\ ``Effluent Limitations Guidelines and Standards for the Steam
    Electric Power Generating Point Source Category,'' (80 FR 67838;
    November 3, 2015).
        \8\ See https://www.epa.gov/sites/production/files/2017-08/
    documents/steam-electric-elg_epa-letter-to-petitioners_08-11-2017.pdf.
        \9\ Executive Office of the President of the United States, Office
    of Information and Regulatory Affairs, Office of Management and Budget
    at https://www.reginfo.gov/public/do/
    eAgendaViewRule?pubId=201904&RIN=2040-AF77. According to the OIRA
    website, the unified agenda reports on the actions administrative
    agencies plan to issue in the near and long term.
        \10\ Id.
    ---------------------------------------------------------------------------

    CLEAN WATER ACT SEC. 401 CERTIFICATION

        Under Section 401 of the Clean Water Act, a federal agency
    may not issue a permit or license to conduct any activity that
    may result in any discharge into navigable waters unless: (1) a
    state or authorized tribe where the discharge originates (or
    would originate) issues a Section 401 water quality
    certification verifying compliance with applicable requirements
    of the Act; or (2) the State or tribe waives this certification
    requirement.
        On April 10, 2019, President Trump issued Executive Order
    13868,\11\ directing the EPA to review its section 401
    guidance, including timing, scope, types of conditions to be
    included, and how much information an applicant must provide to
    States or tribes to make their decision. The Executive Order
    also directed the EPA to issue new guidance and a new
    regulation for implementing Section 401. On August 8, 2019, the
    EPA signed a proposed rule to replace existing water quality
    certification regulations pursuant to Section 401.\12\ This
    proposal would establish a new process for establishing the
    scope of issues that a State could review using its section 401
    authority, the time under which the State could review the
    activity, and what information related to the activity a State
    could require to carry out its review.\13\ The 60-day public
    comment period ends on October 21, 2019.\14\
    ---------------------------------------------------------------------------
        \11\ See https://www.federalregister.gov/documents/2019/04/15/2019-
    07656/promoting-energy-infrastructure-and-economic-growth.
        \12\ See https://www.regulations.gov/document?D=EPA-HQ-OW-2019-
    0405-0025.
        \13\ See https://www.epa.gov/cwa-401/guidance-section-401-
    certification.
        \14\ See https://www.epa.gov/cwa-401/updating-regulations-water-
    quality-certification.
    ---------------------------------------------------------------------------

    WATERS OF THE UNITED STATES

        The jurisdictional reach of the Clean Water Act is the
    ``navigable waters'', defined in the Act as the ``waters of the
    United States, including the territorial seas'' \15\ The
    definition of navigable waters/waters of the United States
    governs the application of Clean Water Act programs--including
    tribal and state water quality certification programs,
    pollutant discharge permits, and oil spill prevention and
    planning programs. States may also protect water quality and
    regulate activities in their respective State waters; however,
    according to a study of the Environmental Law Institute,
    current state laws may also limit the ability of state agencies
    to protect wetlands, streams, and other water resources more
    broadly than federal law.\16\
    ---------------------------------------------------------------------------
        \15\ See 33 U.S.C. 1362.
        \16\ See https://www.eli.org/research-report/state-constraints-
    state-imposed-limitations-authority-agencies-regulate-waters.
    ---------------------------------------------------------------------------
        On February 28, 2017, the President signed the ``Executive
    Order on Restoring the Rule of Law, Federalism, and Economic
    Growth by Reviewing the `Waters of the United States' Rule.''
    \17\ In it, the President directed the EPA and the U.S. Army
    Corps of Engineers (Corps) to review the final rule issued by
    the EPA and the Corps in 2015 aimed at addressing the
    jurisdictional reach of the Clean Water Act,\18\ and consider
    proposing a new rule to rescind or revise the 2015 Rule.
    ---------------------------------------------------------------------------
        \17\ Executive Order 13778. ``Presidential Executive Order on
    Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing
    the 'Waters of the United Stats' Rule'' at https://www.whitehouse.gov/
    presidential-actions/presidential-executive-order-restoring-rule-law-
    federalism-economic-growth-reviewing-waters-united-states-rule/.
        \18\ 80 Fed. Reg. 37054 (June 29, 2015).
    ---------------------------------------------------------------------------
        On June 27, 2017, the EPA and Corps proposed a rule to
    repeal the 2015 Rule and replace the 2015 Rule with the
    regulatory text that existed prior to 2015 for the definition
    of waters of the United States.\19\ On July 12, 2018, the
    agencies published a Supplemental Notice of Proposed
    Rulemaking, asking for additional comments on the agencies'
    proposed repeal. According to OIRA \20\, the final rule was
    anticipated in August 2019; however, as of the date of this
    memo, no final action has yet been taken to repeal the 2015
    Rule.
    ---------------------------------------------------------------------------
        \19\ Proposed Rule was published in the Federal Register on July
    27, 2017, at 82 Fed. Reg. 34899.
        \20\ See https://www.reginfo.gov/public/do/
    eAgendaViewRule?pubId=201904&RIN=2040-AF74.
    ---------------------------------------------------------------------------
        The agencies are also pursuing the development of a new
    rule to replace the regulations determining the scope of the
    Clean Water Act. To that end, on December 11, 2018, the EPA and
    Corps proposed a revised definition of waters of the United
    States and the proposed rule was published in the Federal
    Register on February 14, 2019.\21\ According to OIRA, the final
    rule is anticipated December 2019.\22\
    ---------------------------------------------------------------------------
        \21\ See 84 Fed. Reg. 4154.
        \22\ See https://www.reginfo.gov/public/do/
    eAgendaViewRule?pubId=201904&RIN=2040-AF75.
    ---------------------------------------------------------------------------

    SECTION 404(C) REGULATORY REVISION

        Under the Clean Water Act, the Corps and EPA have
    complementary roles in implementing the Section 404 permit
    program. Under Section 404, the Corps issues permits for the
    discharge of dredged or fill material, using a set of
    environmental guidelines promulgated by EPA in conjunction with
    the Corps (pursuant to Section 401(b) of the Act) to evaluate
    permit applications.\23\
    ---------------------------------------------------------------------------
        \23\ 33 CFR 320.4(a)(1).
    ---------------------------------------------------------------------------
        Section 404 also authorizes the EPA to restrict, prohibit,
    deny, or withdraw the specification by the Corps of a site for
    the discharge of dredged or fill material, if the agency
    determines that the discharge will have an unacceptable adverse
    effect on municipal water supplies, shellfish beds and fishery
    areas (including spawning and breeding areas), wildlife, or
    recreational areas. This authority, commonly called the
    agency's 404(c) veto authority, authorizes the EPA to
    ``prohibit the specification (including the withdrawal of a
    specification) of any defined area as a disposal site, and . .
    . to deny or restrict the use of any defined area for
    specification (including the withdrawal of specification) as a
    disposal site, whenever he determines, after notice and
    opportunity for public comment, that the discharge of such
    materials into such area will have an unacceptable adverse
    effect on municipal water supplies, shellfish beds and fishery
    areas (including spawning and breeding areas), wildlife, or
    recreation areas.'' Since enactment of the Clean Water Act in
    1972, the EPA has exercised its 404(c) authority 13 times.\24\
    ---------------------------------------------------------------------------
        \24\ See https://www.epa.gov/cwa-404/chronology-cwa-section-404c-
    actions.
    ---------------------------------------------------------------------------
        On June 26, 2018, the EPA signed a memorandum to the Office
    of Water and Regional Administrators outlining changes that EPA
    will propose to update the regulations governing EPA's role in
    permitting discharges of dredged or fill materials under
    Section 404 of the Clean Water Act (CWA). In addition,
    according to OIRA, EPA is expected to issue a notice of
    proposed rulemaking to consider changes to EPA 404(c) review
    process that would govern its future use.\25\
    ---------------------------------------------------------------------------
        \25\ See https://www.reginfo.gov/public/do/
    eAgendaViewRule?pubId=201904&RIN=2040-AF88
    ---------------------------------------------------------------------------

    WASHINGTON STATE WATER QUALITY CRITERIA

        The Clean Water Act implementation regulations require that
    the EPA formally approve state- and tribal-developed water
    quality standards before they can go into effect for state
    waters.\26\ In 2016, the State of Washington submitted 45 human
    health criteria for toxic chemicals in state waters to the EPA,
    which approved them on November 15, 2016, and issued a final
    rule that revised 144 additional human health criteria for the
    State of Washington's waters.\27\ On August 6, 2019, in
    response to petitions from industry groups, the EPA issued a
    proposed rule to consider withdrawing its previous approval of
    State-developed human health criteria applicable to waters in
    the State of Washington.\28\
    ---------------------------------------------------------------------------
        \26\ 40 CFR 131.
        \27\ See 81 Fed. Reg. 85419 (November 28, 2016).
        \28\ See 84 Fed. Reg. 38150 (August 6, 2019).
    ---------------------------------------------------------------------------

    GROUNDWATER

        On April 15, 2019, the EPA issued an interpretive
    statement, with the express goal of ``clarifying the
    application of Clean Water Act permitting requirements to
    groundwater.'' \29\ The 2019 interpretive guidance reverses
    prior EPA interpretations that ``pollutants discharged from
    point sources that reach jurisdictional surface waters via
    groundwater or other subsurface flow that has a direct
    hydrologic connection to the jurisdictional water may be
    subject to Clean Water Act permitting requirements.'' \30\ EPA
    recognizes that the U.S. Supreme Court was granted a petition
    of writ of certiorari in Hawai'i Wildlife Fund v. County of
    Maui, 886 F.3d. 737 (9th Cir. 2018), a Ninth Circuit case that
    deals directly with the issue that is the subject of the
    interpretive statement. EPA has stated that it may take further
    action if necessary, after the U.S. Supreme Court has issued a
    decision.
    ---------------------------------------------------------------------------
        \29\ See https://www.epa.gov/npdes/releases-point-source-
    groundwater.
        \30\ See 83 Fed. Reg. 7126, 7127 (February 20, 2019)
    ---------------------------------------------------------------------------

    SEWAGE BLENDING

        The administration's Unified Agenda states that the EPA is
    considering updating existing Clean Water Act regulations
    regarding publicly owned treatment works (POTWs) operations
    when wet weather events impact the ability of a POTW to treat
    all incoming wastewater.\31\ According to OIRA, the goal of the
    update is to clarify permitting procedures to provide POTWs
    with flexibility in how they manage and treat peak flows under
    wet weather events.\32\
    ---------------------------------------------------------------------------
        \31\ See https://www.reginfo.gov/public/do/
    eAgendaViewRule?pubId=201904&RIN=2040-AF81.
        \32\ See id.
    ---------------------------------------------------------------------------

    CLEAN WATER ACT HAZARDOUS SUBSTANCES SPILL PREVENTION

        Section 311(j)(1)(C) directs the President to issue
    regulations establishing procedures, methods, and equipment;
    and other requirements for equipment to prevent discharges of
    oil and hazardous substances from vessels and from onshore
    facilities and offshore facilities, and to contain such
    discharges. The President has delegated the authority to
    regulate non-transportation-related onshore facilities and
    offshore facilities landward of the coastline, under section
    311(j)(1)(C) to EPA.
        In February 2016, the EPA agreed, as part of a court-
    ordered settlement, to propose hazardous substance spill-
    prevention rules for industrial sites by June of 2018, and to
    issue a final rule in 2019. After soliciting input about
    hazardous substance spills across the country, the EPA issued a
    proposed rule to establish no new requirements related to
    spills of hazardous substances under the Clean Water Act.\33\
    ---------------------------------------------------------------------------
        \33\ See 83 Fed. Reg. 29499 (June 25, 2018).
    ---------------------------------------------------------------------------

                                   WITNESSES

    PANEL 1

          The Honorable Dave Ross, Assistant Administrator,
    Office of Water, U.S. Environmental Protection Agency

    PANEL 2

          Ms. Maia Bellon, Director, Department of Ecology,
    State of Washington
          Ms. Becky Keogh, Secretary, Arkansas Energy and
    Environment, State of Arkansas
          Mr. Ken Kopocis, Associate Professor, American
    University College of Law
          Mr. Michael Hickey, Hoosick Falls, NY
          Ms. Pam Nixon, President, People Concerned About
    Chemical Safety
          Mr. Geoffrey R. Gisler, Senior Attorney, Southern
    Environmental Law Center

    THE ADMINISTRATION'S PRIORITIES AND POLICY INITIATIVES UNDER THE CLEAN
                                   WATER ACT

                                  ----------

                         WEDNESDAY, SEPTEMBER 18, 2019

                      House of Representatives,
       Subcommittee on Water Resources and Environment,
                Committee on Transportation and Infrastructure,
                                                        Washington, DC.
        The subcommittee met, pursuant to call, at 10:01 a.m., in
    room 2167, Rayburn House Office Building, Hon. Grace F.
    Napolitano (Chairwoman of the subcommittee) presiding.
        Mrs. Napolitano. Good morning, everybody.
        I call this hearing to order, and we are going to get
    started as soon as we have everybody set.
        Today's hearing focuses on the Trump administration's
    policies and priorities under the Clean Water Act and the
    impacts on our communities.
        Let me begin by asking unanimous consent that committee
    members not on the subcommittee be permitted to sit with the
    subcommittee at today's hearing and allowed to ask questions.
        Without objection, so ordered.
        I also ask unanimous consent the chair be authorized to
    declare a recess during today's hearing.
        Without objection, so ordered.
        Today's hearing has been a long time in coming and is long
    overdue. This is our first opportunity in 3 years to question
    this administration on its vision of the Clean Water Act, and
    whether their vision is consistent with the law and in line
    with the wishes of the American people. We have much to
    discuss.
        In the past 3 years, this administration has taken
    unprecedented steps to critically weaken our Clean Water Act,
    one of our Nation's most important environmental laws for
    protecting our health and the health of our environment.
        In just 3 short years, EPA has repealed efforts to restore
    longstanding protections for rivers, streams, and wetlands that
    provide drinking water to over 117 million Americans. In just 3
    years, EPA has proposed to eliminate Reagan-era protections on
    an estimated 50 million acres of wetlands and over 2 million
    miles of rivers and streams--more than half of the remaining
    wetlands and stream miles in the entire country.
        In just 3 years, the EPA has ground Clean Water Act
    enforcement to a standstill, imposing political influences on
    decisions when or if to enforce the law and relying on unproven
    and unquantifiable so-called compliance initiatives to make it
    sound like the Agency is doing something.
        In just 3 years, the EPA has attacked the foundational
    underpinnings of the 1972 Clean Water Act, including the
    longstanding Federal-State partnership in co-administering the
    law, the backstop EPA veto authority which ensures that
    projects with unacceptable impacts to the environment cannot
    move forward, and the authority to prevent pollution from
    existing point sources.
        Finally, in just 3 short years, this administration has
    actively tried to eviscerate, undermine, and silence the
    scientific and technical expertise and effectiveness of the
    Agency, clearly demonstrating this administration's fear of
    science, and its view that a weakened, underfunded,
    understaffed agency is a compliant agency.
        As noted in the recent testimony of former Republican EPA
    Administrator Christine Todd Whitman, she stated: ``Today, as
    never before, the mission of EPA is being seriously undermined
    by the very people who have been entrusted with carrying that
    mission out . . . The Trump administration has explicitly
    sought to reorient the EPA toward industrial and industry-
    friendly interests, often with little or no acknowledgment of
    the Agency's health and environmental missions.''
        Administrator Ross, I am glad you accepted our invitation
    to testify this morning, and I appreciate your being here.
    However, as you can surmise, Members on both sides of the aisle
    are frustrated by the seeming disconnect between your actions
    and the missions of the EPA. I can only imagine how much
    polluters love what you are doing. However, when 63 percent of
    Americans tell us that they are a great deal worried about
    pollution and drinking water; when 57 percent of American
    people worry a great deal about pollution in their rivers,
    lakes, and reservoirs; and when hard-working Americans and
    communities of color say that they are more concerned about
    water pollution than any other time in recent history,
    something is clearly wrong.
        Today, your job is to answer to the subcommittee and the
    American people why you think a weakened Clean Water Act is in
    the best interest of hard-working American families.
        Please don't fall back to the tired, false choice of
    economy versus the environment. We can easily point you to both
    the Clinton and Obama administrations where the economy was
    strong, as was our Clean Water Act protections. We will
    continue to protect EPA's stated mission.
        [Mrs. Napolitano's prepared statement follows:]

      Prepared Statement of Hon. Grace F. Napolitano, a Representative in
    Congress from the State of California, and Chairwoman, Subcommittee on
                        Water Resources and Environment
        Today's hearing has been a long time in coming.
        This is our first opportunity in three years to question this
    administration on its vision of the Clean Water Act--and whether this
    vision is consistent with the law and in line with the wishes of the
    American people.
        We have a lot to discuss.
        In the past three years, this administration has taken
    unprecedented steps to critically weaken our Clean Water Act--one of
    our nation's most important environmental laws for protecting our
    health and the health of our environment.
        In just three short years, this EPA has repealed efforts to restore
    long-standing protections for the rivers, streams, and wetlands that
    provide drinking water to over 117 million Americans.
        In just three years, this EPA has proposed to eliminate Reagan-era
    protections on an estimated 50 million acres of wetlands and over 2
    million miles of rivers and streams--more than half of the remaining
    wetlands and stream miles in this entire country.
        In just three years, this EPA has ground Clean Water Act
    enforcement to a standstill, imposing political influences on decisions
    when (or if) to enforce the law and relying on unproven and
    unquantifiable so-called ``compliance initiatives'' to make it sound
    like the agency is doing something.
        In just three years, this EPA has attached the foundational
    underpinnings of the 1972 Clean Water Act, including the long-standing
    Federal-State partnership in co-administering the law, the backstop EPA
    veto authority which ensures that projects with ``unacceptable
    impacts'' to the environment cannot move forward, and the authority to
    prevent pollution from existing point sources.
        Finally, in just three short years, this administration has
    actively tried to eviscerate, undermine, and silence the scientific and
    technical expertise and effectiveness of this agency--clearly
    demonstrating this administration's fear of science, and its view that
    a weakened, underfunded, and understaffed agency is a ``compliant''
    agency.
        As noted in recent testimony by the former Republican EPA
    Administrator, Christie Todd Whitman:

            ``Today, as never before, the mission of EPA is being seriously
            undermined by the very people who have been entrusted with
            carrying that mission out . . . The Trump administration has
            explicitly sought to reorient the EPA towards industrial and
            industry-friendly interests, often with little or no
            acknowledgement of the agency's health and environmental
            missions.''

        Administrator Ross, I am glad you accepted our invitation to
    testify here this morning and appreciate your being here.
        However, as you can surmise, Members on both sides of the aisle are
    frustrated by the seeming disconnect between your actions and the
    missions of EPA.
        I can only imagine that polluters love what you are doing.
        However, when 63 percent of the Americans tell us they are a great
    deal worried about pollution in their drinking water, when 57 percent
    of American worry a great deal about pollution in their rivers, lakes
    and reservoirs, and when hard-working Americans and communities of
    color say they are more concerned about water pollution than any time
    in recent history--something is clearly wrong.
        That is your job today--to answer to this Subcommittee and the
    American people why you think a weakened Clean Water Act is in the best
    interests of the hard-working American families.
        And, please, don't fall back to the tired, false choice of economy
    versus the environment. I can easily point you to both the Clinton and
    Obama administrations where the economy was strong, as was our Clean
    Water Act protections.
        I wish you luck.

        Mrs. Napolitano. At this time, I am pleased to yield to my
    colleague, ranking member of our subcommittee, Mr. Westerman,
    for any thoughts he may have.
        Mr. Westerman. Thank you, Chairwoman Napolitano, for
    holding this hearing, and thank you to our witnesses for being
    here to discuss EPA's initiatives under the Clean Water Act.
        In particular, I would like to acknowledge Assistant
    Administrator Dave Ross from EPA's Office of Water for taking
    the time to be here. And on the second panel, I am glad to be
    able to welcome Becky Keogh, who is the secretary of energy and
    environment from my home State of Arkansas.
        Water is obviously critical for life. We can't live without
    it, and I can't stress enough the importance of protecting our
    Nation's water supply and quality and how water policy
    shouldn't be about politics but about applying the best science
    with the most commonsense approach.
        Living in rural Arkansas or living anywhere in this
    country, you know that we all rely on clean water for drinking,
    for our homes, for our businesses and farms. And we also rely
    on effective wastewater management and irrigation to preserve
    the livelihoods of many people who produce the food that feeds
    our country.
        Protecting our waters is absolutely critical to communities
    and ecosystems at home and all around the Nation. We have made
    substantial progress over the past four and a half decades
    improving water quality in our Nation. But I also understand
    that some challenging issues still remain. The most effective
    way to address these issues is through implementing effective
    and pragmatic environmental policies under the Clean Water Act
    that balance environmental, economic, and social outcomes.
        States need to be empowered and engaged as equal partners
    with the Federal Government in working to achieve these
    objectives. Neither the Federal Government nor a State should
    become overbearing and upset that balance. Maintaining the
    balanced Federal-State partnership that Congress originally
    intended under the Clean Water Act is fundamental to achieving
    the objectives of the act. This is cooperative federalism.
        It is critical that neither the Federal Government nor a
    State takes too heavy-handed an approach. We can and must
    protect and restore America's waters and wetlands with
    effective and pragmatic policy and regulation that provides
    regulatory certainty and is devoid of armies of consultants and
    lawyers. Legal and policy decisions must be informed by good
    science, be clear and concise, and preserve States' traditional
    authorities.
        I look forward to hearing testimony today from the EPA and
    stakeholders on how we can strike a balance between regulatory
    clarity and the need for robust environmental protection of
    waters and wetlands, and also maintain the Federal-State
    partnership that was envisioned under the Clean Water Act.
        [Mr. Westerman's prepared statement follows:]

        Prepared Statement of Hon. Bruce Westerman, a Representative in
     Congress from the State of Arkansas, and Ranking Member, Subcommittee
                       on Water Resources and Environment
        Thank you, Chairwoman Napolitano, for holding this hearing, and
    thank you to our witnesses for being here to discuss EPA's initiatives
    under the Clean Water Act. In particular, I'd like to acknowledge
    Assistant Administrator Dave Ross from EPA's Office of Water for taking
    the time to be here today, as well as Secretary of Energy and
    Environment, Becky Keogh, from my home state of Arkansas.
        Let me be clear, I am a staunch supporter of our environment and
    cannot understate the importance of protecting our Nation's water
    quality. Living in rural Arkansas, many of my friends and constituents
    rely on clean water for their drinking water, and homes, businesses,
    and farms rely on effective wastewater management and irrigation to
    preserve their livelihoods. Protecting our waters is absolutely
    critical to communities and ecosystems at home and all around the
    Nation.
        We have made substantial progress over the past four and a half
    decades improving water quality in our Nation. But I also understand
    that some challenging issues still remain.
        The most effective way to address these issues is through
    implementing effective and pragmatic environmental policies under the
    Clean Water Act that balance environmental, economic, and social
    outcomes. States need to be empowered and engaged as equal partners
    with the federal government, in working to achieve these objectives.
    Neither the federal government nor a state should become overbearing
    and upset that balance.
        Maintaining the balanced federal-state partnership that Congress
    originally intended under the Clean Water Act is fundamental to
    achieving the objectives of the Act. This is ``cooperative
    federalism.''
        It is critical that neither the federal government nor a state
    takes too heavy-handed an approach. We can and must protect and restore
    America's waters and wetlands with effective and pragmatic policy and
    regulation that provides regulatory certainty and is devoid of armies
    of consultants and lawyers. Legal and policy decisions must be informed
    by good science, be clear and concise, and preserve states' traditional
    authorities.
        I look forward to hearing testimony today from the EPA and
    stakeholders on how we can strike a balance between regulatory clarity
    and the need for robust environmental protection of waters and
    wetlands, and also maintain the federal-state partnership envisioned
    under the Clean Water Act.

        Mr. Westerman. And, Madam Chairwoman, I ask unanimous
    consent that the written testimony be submitted for the record
    on behalf of the following: The U.S. Chamber of Commerce and
    the Chamber's Business Task Force on Water Policy, the National
    Association of Home Builders, and the American Forest and Paper
    Association.
        Mrs. Napolitano. So ordered.
        [The information is on pages 106-112.]
        Mr. Westerman. And with that, I yield back.
        Mrs. Napolitano. Thank you very much.
        We now have the chair of the full committee, Mr. DeFazio.
        Mr. DeFazio. Thanks, Madam Chair.
        Long before I was in Congress, 1972, an overwhelming
    bipartisan majority and President Nixon agreed that the fact
    that Lake Erie was declared dead, the Cuyahoga River caught
    fire, and in my State, the Willamette River was an open sewer,
    that we needed to do something about it. So, hence, the Clean
    Water Act.
        We are now at a point where we are facing 21st-century
    challenges to our clean water, and also new challenges in terms
    of climate change and severe climate events.
        So what was the reaction of this administration? Well, they
    are leading a campaign to dismantle the Clean Water Act.
    Historic, I guess, being pushed by the mining industry, oil and
    gas, small and large industrial polluters. They want to go back
    to pre-1986 Reagan-era rules. They want to roll back the scope
    of the waters that are covered. That would strip clean water
    protections for over 60 percent of stream miles and close to
    half of remaining acres of wetlands.
        In the West, it would remove all protections for
    intermittent and ephemeral streams, they are already proposing
    significant cutbacks, but let's get rid of all of those things.
    Well, that would be 74 percent of the stream miles in my State
    of Oregon that would be unprotected, 87 percent in the State of
    California, 99 percent in the State of Arizona, 97 percent in
    the State of New Mexico, and 96 percent in the State of Nevada,
    and a nationwide impact elsewhere, but I don't have time to go
    through every State and the impact. But every State, all
    Americans, would be impacted by this proposal.
        In fact, look at this handy chart provided by this
    administration.
        [Slide.]

         Figure IV-9 from ``Economic Analysis for the Proposed Revised
          Definition of `Waters of the United States' ,'' by the U.S.
     Environmental Protection Agency and Department of the Army, December
          14, 2018, Submitted for the Record by Hon. Peter A. DeFazio
    Figure IV-9: Overview of potential environmental impacts to selected
            CWA programs from proposed changes in CWA jurisdiction for
            certain waters
            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Note: This figure assumes no state responses to changes in CWA
     jurisdiction. The analysis in Section II.A suggests that many states
      will continue to regulate newly non-jurisdictional waters, thereby
      reducing any potential impacts from the changes in CWA jurisdiction.

        Mr. DeFazio. These are the predicted impacts of their rule.
    Oh, minimal kind of stuff. Let's forget about the environment
    section in the middle. Let's just go to economic impacts. Hmm.
    Section 404 permits and mitigation. Ah, reduced ecosystem
    values, i.e., recreation, hunting, fishing, would be severely
    damaged.
        Oh, how about this one? Downstream inundation damages.
    Think of the broke Federal Flood Insurance Program already in
    huge deficit and the challenges that FEMA has. But, hey, we are
    going to make it worse. Don't worry about it.
        And then, oh, we could just say look over here, under the
    section 402 permits, greater drinking water treatment and
    dredging costs. Well, the States will do it. The States will do
    it. The States will clean up the water that came across the
    border from another State that is doing nothing about the filth
    going into it, and they will pay for it, not the Feds. And we
    are not going to make that other State clean it up. No, no, no.
    They can dump whatever they want in because it is an economic
    value to them, and it just flows over the border to another
    State. That State will just have to clean it up--if their
    people want to drink it, that is their problem.
        This is unbelievable. You know, I sat in this committee
    back during the Gingrich era, and we had a markup that went on
    for a week. It was embarrassing. And it was essentially what
    you people are proposing. That was Bud Shuster's darkest
    moment. And that bill was so embarrassing and so bad, that
    dirty water bill, that Newt Gingrich wouldn't even bring it to
    the floor.
        But you people have the gall to try and do all this stuff
    administratively, dismantle more than half a century of
    progress. I mean, this is unbelievable. I mean, I can go on and
    on about this. But rivers flow across borders, groundwater
    migrates everywhere. And, oh, States will take care of it.
    Well, the States are, you know, pretty pressed.
        We used to help build wastewater systems. I was a county
    commissioner. We got an 80-percent Federal match. You know what
    the match is today? Zero. Zero. And, in fact, Trump has
    proposed to cut the very minimal amount of money that we use to
    assist the States with wastewater, and those systems are
    wearing out.
        The EPA itself says we need $270 billion in the next 20
    years. And that doesn't even include new expenditures for
    resilience and climate change. I have areas where these systems
    go under water now regularly. We have to take care of those
    things. But what is the Federal Government going to do? Well,
    the Trump administration is going to cut Federal partnership
    down to virtually nothing for everybody.
        And then there has been this horrible tragedy that happened
    in the Southeast. And the committee held hearings at the time,
    then we lost the House and Congress didn't do anything about it
    that was meaningful.
        But, you know, exposure to toxic pollutants. The first
    update, the powerplant regulation since 1982 came out of
    President Obama. We held hearings on the TVA Kingston Fossil
    Plant coal ash pond disaster in 2008. We couldn't get anything
    out of a Republican Congress. The Obama administration took
    action.
        What is this administration going to do? They are going to
    undo that. Don't worry, you will get your daily dose of, you
    know, selenium, cadmium, arsenic, and all of those things,
    under their proposed rule. We will do nothing about the coal
    ash.
        The Obama rule would reduce the amount by 1.4 billion
    pounds, 90 percent. They are going to put that 1.4 billion
    pounds or allow that to go back in. And your own--your own
    analysis says that this Obama rule had minimal impacts on
    electricity prices and the amount of electricity generating
    capacity. But now we are going to do away with the rule because
    somebody wanted it. Coal industry? I am not sure who.
        Now, I don't know. Are we using new science? No, I don't
    think so. This is all very political, and it is very
    shortsighted.
        We are no longer doing enforcement. We have a new rule. You
    find someone violating the Clean Water Act, first off, not
    really doing--not allowing the people to go out and do
    inspections anymore. But you find someone in violation and you
    recommend that there should be penalties; it has to be approved
    by a political appointee. Not a scientist, not a career person.
    A political appointee. Do you know what the answer is going to
    be? Hell, no, we don't enforce that law. We are not going to
    make those polluters pay a fine.
        This is outrageous. And, Madam Chair, I regret that I won't
    be able to stay for the entire hearing, because I have two
    other major things this morning. But I will be around long
    enough to at least engage in one round of questions. And I may
    use an extended period of time, and I will grant the same
    amount to the minority for them if they want to apologize for
    his actions.
        Thank you.
        [Mr. DeFazio's prepared statement follows:]

       Prepared Statement of Hon. Peter A. DeFazio, a Representative in
         Congress from the State of Oregon, and Chairman, Committee on
                       Transportation and Infrastructure
        We are here today to talk about actions taken by the Trump EPA and
    the impacts they will have for years to come on our public health and
    environment.
        Clean water is a basic human need and human right. Our families
    rely on rivers and streams to supply clean drinking water to our homes
    and businesses. Our farmers and brewers rely on clean water to produce
    good food and drink. Hunters, anglers, and birders need water and
    wetlands to sustain wildlife and the $887 billion outdoor recreation
    industry.
        The Clean Water Act was enacted in 1972 on an overwhelming and
    bipartisan basis. Before the Act, rivers served as little more than
    open sewers, Lake Erie was pronounced ``dead,'' and Ohio's Cuyahoga
    River literally caught on fire. Thanks to bipartisan efforts over
    decades to implement the Clean Water Act, our rivers and lakes are
    cleaner and safer.
        Yet, the Trump administration has taken and is taking several
    misguided, misinformed, and fundamentally flawed actions that will undo
    the progress we have made.
        First, the Trump administration is leading a campaign to dismantle
    our nation's Clean Water Act--all at the behest of the mining industry,
    oil and gas sectors, and small and large industrial polluters. Trump's
    EPA recently finalized a roll back of CWA protections--all the way back
    to what they were in 1986.
        The administration's next step is to roll back the scope of waters
    covered by the Act--protecting far fewer rivers, lakes, and streams
    than even President Reagan thought appropriate. Preliminary estimates
    suggest that the Trump proposal would strip Clean Water Act protections
    for over 60 percent of stream miles and close to half of our remaining
    acres of wetlands.
        If the Trump administration takes the most radical approach and
    removes protections for both intermittent and ephemeral streams, as
    many as 74 percent of stream miles mapped in my State of Oregon could
    be left without protections; 87 percent of stream miles in the State of
    California; 99 percent in the State of Arizona; 97 percent in the State
    of New Mexico; and 96 percent in the State of Nevada. That is a lot of
    stream miles that could become more polluted in the future.
        In the Trump administration's own economic analysis of their flawed
    proposal, they include a chart that shows the potential environmental
    and economic impacts of the Dirty Water Rule. Even though EPA chose to
    look at the impacts to just three Clean Water Act programs, the
    potential impacts are great.
        The environmental impacts include: reduced wetland habitat;
    increased flood risk; more pollution into waterbodies; degraded aquatic
    habitats; increased oil spill risk; and affected drinking water
    intakes. The economic impacts include greater costs related to
    downstream flooding; greater drinking water treatment costs; greater
    spill response costs; and greater damage from oil spills.
        This administration will tell you states will fill in the gaps in
    federal law and take up the role of protecting these waters. Don't be
    fooled. States and localities have shown no interest in backstopping
    the protections stripped by the Trump EPA--states and localities have
    less incentive and fewer resources to ensure that waters that flow out
    of their boundaries are clean. We tried that approach before enactment
    of the Clean Water Act, when there was a patchwork of state laws, and
    saw what an epic failure that was.
        Second, we are in an infrastructure crisis. The EPA estimates that
    some $270 billion in infrastructure investment is needed over the next
    20 years--and that is just to get our country's current wastewater
    infrastructure into good shape. That doesn't include what we need to
    invest to ensure that our infrastructure is resilient and ready to deal
    with the impacts of climate change and stronger and more persistent
    storms.
        Despite these demonstrated needs, the Trump administration proposed
    massive cuts to the primary water infrastructure investment program--
    the Clean Water State Revolving Fund program--asking for barely $1
    billion for Fiscal Year 2020. That is a ridiculously low amount given
    the need.
        The President claims to be the best at building things, but to date
    he has not put together a comprehensive plan for successfully upgrading
    and maintaining our infrastructure--wastewater or otherwise.
        Third, the Trump EPA is undoing the previous administration's
    efforts to limit communities' exposure to toxic pollutants from power
    plants. In 2013, the Obama administration proposed the first update to
    power plant regulations since 1982 by proposing limits on the toxic
    metals power plants can discharge.
        This Committee held oversight hearings when the Tennessee Valley
    Authority Kingston Fossil Plant coal ash pond disaster occurred back in
    2008. While there have been various efforts in Congress to address coal
    ash pollution, the first effort from EPA was when the Obama
    administration attempted to protect communities from toxic pollution in
    coal ash from power plants across the country.
        The Obama administration determined there would be significant
    benefits related to their proposal. The monetary benefits were
    projected to be $451-$566 million each year and was expected to reduce
    heavy metals entering waterways by 1.4 billion pounds, or 90 percent.
    At the same time, the analysis showed the new discharge limits would
    have ``minimal impacts on electricity prices and the amount of
    electricity generating capacity.''
        Now, the Trump administration is blocking the implementation of
    these important safeguards.
        Is it because EPA is looking at new science or other data that
    indicates we don't need to limit exposure to things like arsenic,
    selenium, lead, mercury, boron, and cadmium? Or is it because industry
    groups persuaded the Trump EPA to delay implementation of these
    important protections? Spoiler alert: it is the latter.
        Unfortunately, the Trump administration is up to more than just
    that. The Trump EPA is dropping the ball on enforcing the law,
    finalizing fewer civil enforcement actions in its first year than the
    previous three administrations during similar time periods. In
    addition, the political head of EPA's enforcement office issued new
    procedures requiring political appointee sign off before enforcement
    actions move forward.
        The Trump administration is also restarting projects already found
    to be bad for the environment, such as Pebble Mine in Alaska and the
    Yazoo Pumps in Mississippi; stripping EPA of an important ``veto'' tool
    to intervene when a project threatens water quality; shrugging off
    setting standards after a chemical storage facility in West Virginia
    released 10,000 gallons of waste, affecting 300,000 residents; and the
    list goes on and on.
        President Trump often says he wants ``clean water,'' but, time-
    after-time, his actions undermine or eliminate existing protections of
    our waters and put the health of our families and our local economies
    at risk. This administration has made it a priority to dismantle the
    Clean Water Act, regardless of the science or the law.
        Clearly, the winners of this administration's roll backs are the
    developers, manufacturers, and corporate farmers that don't want to be
    responsible for the pollutants they dump into our rivers and streams.
        The losers are our families, our local communities and businesses,
    and our environment that will have to live with the long-term
    consequences of dirty water.

        Mrs. Napolitano. Thank you, Mr. DeFazio. Now tell us how
    you really feel.
        I love it.
        Without objection, I ask unanimous consent to insert the
    following letters and documents into the record, along with the
    ones that are given by the minority: A series of oversight
    letters from this committee to EPA, some of the responses we
    have received thus far; other correspondence the committee has
    received relative to the issue to be discussed today; map of
    the PFAS pollution, and a letter from the attorneys general
    requesting congressional action on PFAS.
        Without objection, so ordered.
        [The information is on pages 112-128.]
        Mrs. Napolitano. Now we will proceed to hear from our
    witness who will testify.
        And I thank you for being here. You are in the hot seat,
    Mr. Ross, but I thank you anyway.
        You are welcome to the hearing, and your prepared statement
    will be entered into the record. And all witnesses are asked to
    limit their remarks to 5 minutes.
        The Honorable David Ross, Assistant Administrator, Office
    of Water, U.S. EPA. You are on.

     TESTIMONY OF HON. DAVID ROSS, ASSISTANT ADMINISTRATOR, OFFICE
             OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY

        Mr. Ross. Well, good morning, Chairwoman Napolitano,
    Ranking Member Westerman, Chairman DeFazio, and members of the
    subcommittee. I am Dave Ross, EPA's Assistant Administrator for
    the Office of Water. It is a pleasure to be here today.
        I want to begin by thanking the dedicated professionals
    working within the Office of Water for their service to this
    country and for their passion in delivering on the Agency's
    core mission of protecting public health and the environment.
        The Office of Water has an extensive portfolio of
    responsibility. But I would like to begin today by highlighting
    a few priority areas for the subcommittee, including
    modernizing and rebuilding America's water infrastructure,
    encouraging the adoption of water reuse, and ensuring a
    sustainable workforce in the water sector.
        My written testimony provides a more indepth discussion of
    some other additional topics.
        One of the highest priorities for the Office of Water is to
    ensure that the Agency implements our appropriated grant and
    loan programs as expeditiously and transparently as possible.
    It is our job to put our hard-earned taxpayer resources to work
    as quickly as possible.
        One program that I would like to highlight in particular is
    the Water Infrastructure Finance and Innovation Act program, or
    WIFIA for short.
        The WIFIA program is complex, and it took some time to set
    up, but it is now operating at full capacity and is producing
    tremendous results. In the past year, the EPA has announced 11
    WIFIA loans, leveraging approximately $3 billion in taxpayer
    resources to help finance over $6.5 billion in water
    infrastructure projects, and we anticipate announcing several
    more loans in the very near future. In fact, with existing
    appropriations, the WIFIA program is slated to leverage
    approximately $10 billion in credit assistance, to finance over
    $20 billion in water infrastructure investments, while creating
    thousands of jobs in communities throughout the country.
        Another priority for the Office of Water is promoting the
    reuse of water for beneficial purposes instead of treating it
    as waste. Forty of our State partners anticipate some
    freshwater shortages in the next decade, and all levels of
    Government have a responsibility to ensure that Americans have
    access to reliable sources of clean and safe water.
        That is why last week, at the WateReuse Symposium in San
    Diego, EPA and our Federal partners released a draft National
    Water Reuse Action Plan for public review and comment. There is
    innovative work happening throughout the water sector to
    advance water reuse, and the action plan is intended to help
    facilitate adoption of water reuse to support improved water
    resiliency, sustainability, and security.
        To protect our Nation's investments in aging infrastructure
    and capacity development, we must not forget about our human
    capital needs. Without a capable, knowledgeable, and diverse
    workforce of water professionals, our financial investments
    will be put at risk.
        The water sector workforce is underappreciated. I began my
    career working alongside wastewater treatment operators in
    southern California, and looking back now, I realize how
    valuable they were to my education and professional
    development. They are the true environmental heroes, protecting
    public health and the environment every day, and they deserve
    the same recognition in society as our emergency responders,
    teachers, and public health professionals.
        We know that more than one-third of our water and
    wastewater operators will be eligible to retire in the next 10
    years, and technology is outpacing training. While this is
    primarily a State and local issue, I see an important role for
    Federal leadership. That is why EPA is working with our Federal
    partners to support water workforce training and development.
        For example, we are working with the Department of Veterans
    Affairs to provide information on water careers to disabled
    veterans and are exploring other collaborative opportunities
    with our military services. The country relies on this
    workforce every day, and it is imperative that we focus
    resources on supporting this critical sector.
        Finally, I want to conclude by describing my touchstone for
    addressing many of the complex regulatory questions facing the
    Office of Water, determining first what the law is, not what we
    want it to be. Under our system of laws, an executive branch
    agency can only exercise the power that Congress delegates to
    it.
        The Federal Government has a poor track record in Supreme
    Court cases involving the Clean Water Act in which it was a
    party. For example, in the last three major cases, Sackett,
    Hawkes, and NAM, Federal positions failed to secure a single
    vote from any Supreme Court Justice. That is almost impossible
    to do. That is why under this administration, the Office of
    Water is focused on restoring the rule of law and providing
    regulatory certainty by starting with a robust analysis of our
    base legal authorities before deciding our policy positions.
        Members of the subcommittee, thank you for the opportunity
    to testify today. I look forward to answering any questions you
    may have.
        [Mr. Ross' prepared statement follows:]

    Prepared Statement of Hon. David Ross, Assistant Administrator, Office
                 of Water, U.S. Environmental Protection Agency
        Good morning Chairman DeFazio, Chairwoman Napolitano, Ranking
    Member Graves, Ranking Member Westerman, and members of the Committee.
    I am David Ross, Assistant Administrator of the U.S. Environmental
    Protection Agency's Office of Water. Thank you for the opportunity to
    speak about the Administration's priorities and policy initiatives
    under the Clean Water Act. Given the frequent convergence of surface
    and drinking water quality issues, I am also happy to address questions
    related to our drinking water and other national water program areas.
        I want to begin by thanking the dedicated professionals working
    within the EPA Office of Water for their service to this country and
    for their passion in delivering on the Agency's core mission of
    protecting public health and the environment every single day.
    America's drinking and surface water quality is much better today than
    at any point during the history of our Agency. The laws of Congress, as
    carried out by the Executive Branch, are working, and today the United
    States is a global leader in drinking water quality and draws millions
    of visitors from around the world each year to enjoy and play on our
    inland and coastal waters.
        That said, historical issues remain and new challenges have
    emerged, from aging infrastructure to managing excess nutrients in
    surface water to addressing emerging contaminants in drinking water.
    The EPA Office of Water has an extensive portfolio of responsibility,
    and I would like to highlight a few priority action areas for the
    Subcommittee. These include: modernizing and rebuilding America's water
    infrastructure; reusing water for beneficial purposes instead of
    treating it as waste; ensuring a sustainable workforce in the water
    sector; using innovative approaches to reduce excess nutrients in
    waterbodies; and addressing priority and emerging contaminants in
    drinking water. I also want to highlight two priority regulatory
    actions under the Clean Water Act which may be of interest to the
    Subcommittee.
           Modernizing and Rebuilding America's Water Infrastructure
        One of the highest priorities of the EPA Office of Water and a
    personal priority of mine is to ensure the Agency implements our
    appropriated grant and loan programs as expeditiously and transparently
    as possible. The Water Infrastructure Finance and Innovation Act
    (WIFIA) program and the Clean Water and Drinking Water State Revolving
    Funds (SRFs), for example, are vital for supporting communities in
    meeting their clean water and drinking water goals.
        The WIFIA program is complex and took some time to set up, but it
    is now operating at full capacity and is producing tremendous results.
    To date, the EPA has announced 11 WIFIA loans, totaling nearly $3
    billion in credit assistance to help finance over $6.5 billion in water
    infrastructure projects and create more than 10,000 jobs. Additionally,
    three more projects are currently under review and likely to be
    announced soon, totaling approximately $725 million in credit
    assistance. This past November, the EPA invited another 39 projects in
    16 states and the District of Columbia to apply for WIFIA loans--
    projects that, when approved, could help finance more than $10 billion
    in total water infrastructure investments and create up to 155,000 more
    jobs. In response to the EPA's third WIFIA Notice of Funding
    Availability, the Agency received 51 letters of interest, collectively
    requesting $6.6 billion. This exceeds the $6 billion that the EPA is
    offering, demonstrating the critical need for investment in our
    nation's water infrastructure and strong interest in the WIFIA program.
        The EPA's Clean Water and Drinking Water SRFs continue to provide
    critical funding to states to improve wastewater and drinking water
    infrastructure and reduce water pollution and public health threats.
    Combined, the SRFs have provided more than $170 billion in financial
    assistance to more than 39,900 water quality infrastructure projects
    and 14,500 drinking water projects across the country. The SRFs
    continue to be one of the most impactful EPA programs in protecting
    public health and the environment, and the Agency is working with our
    state partners to ensure their SRFs are operating as efficiently and
    effectively as possible.
                     Reusing Water for Beneficial Purposes
        Another priority for the EPA Office of Water is reusing water for
    beneficial purposes instead of treating it as waste. Forty of our state
    partners anticipate fresh water shortages in the next decade, at least
    in portions of their states. Although states, tribes, local governments
    and the water sector are actively working to diversify their water
    portfolios to meet anticipated demand, water reuse is an underutilized
    tool for meeting the needs of the Nation. The federal government is
    committed to working with our state and local communities to ensure
    that all Americans have access to reliable sources of clean and safe
    water. That is why last week at the WateReuse Symposium in San Diego,
    California, the EPA and our federal partners released a Draft National
    Water Reuse Action Plan for public review and comment. There is
    innovative work happening throughout the water sector to advance water
    reuse, and the draft Action Plan is intended to help accelerate
    adoption of water reuse as a critical component of an integrated water
    resources management approach that can support improved water
    resiliency, sustainability, and security.
              Ensuring a Sustainable Workforce in the Water Sector
        The EPA also recognizes the need to ensure a capable,
    knowledgeable, and diverse workforce of water professionals. The great
    work of these environmental heroes protects public health and the
    environment every single day. In addition to their critical role in
    providing clean and safe water to our communities, water utility
    workers are key in protecting the Nation's investments in water
    infrastructure. We know that roughly one third of water and wastewater
    operators will be eligible to retire in the next 10 years, and
    technology is outpacing training. While this is primarily a state and
    local community issue, I see an important role for federal leadership.
    That's why the EPA is working with our federal partners to support
    water workforce training and development. For example, we are working
    with the U.S. Department of Veterans Affairs to provide information on
    water careers to disabled veterans and with the U.S. Department of
    Labor to promote tools like their Water Workforce Competency Model,
    which can help utilities and others set up apprentice programs. The
    country relies on this workforce every day and the EPA can play a
    unique role in helping to support this sector.
     Using Innovative Approaches to Reduce Excess Nutrients in Waterbodies
        The EPA is also prioritizing using innovative approaches to reduce
    excess nutrients in surface waters. Excess nutrients in our waterways
    is a significant and ongoing water quality challenge that can trigger
    harmful algal blooms, a growing drinking water concern for many
    communities. Excess nutrients come from a variety of sources, including
    urbanization, growing populations, wastewater discharges, septic
    systems, stormwater runoff, and agriculture. States, tribes, local
    governments, communities, the federal government, and a diverse network
    of engaged stakeholders have worked hard to reduce excess nutrients.
        While much progress has been made, there is more work to do. At the
    federal level, the EPA will continue to use traditional regulatory and
    financial tools that are available to us. But to truly make a lasting
    difference, we need to think more holistically. That is why the EPA
    Office of Water has been so focused over the past year on thinking more
    creatively about the use of market-based mechanisms and how the power
    of innovative financing tools can help us create lasting and beneficial
    change in this area. For example, we believe water quality trading is
    an untapped opportunity to make significant gains in water quality
    improvement, particularly as applied to excess nutrients in surface
    waters. That is why we published a new water quality trading policy in
    February and currently have additional recommended policy enhancements
    out for public comment.
        The Agency is also strengthening our partnership with the U.S.
    Department of Agriculture (USDA) and is working more closely with the
    utility and agricultural sectors. We are thankful for their engagement
    and collaboration, and we are grateful for farmers' expertise as long-
    standing conservation stewards of the land.
        Addressing Priority and Emerging Contaminants in Drinking Water
        I would also like to highlight some important efforts the EPA
    Office of Water is undertaking to support safe drinking water. The EPA
    has established protective drinking water standards for more than 90
    contaminants, including drinking water regulations issued since the
    1996 amendments to the Safe Drinking Water Act that strengthen public
    health protection. Today, more than 92 percent of our population served
    by public drinking water systems is delivered water in full compliance
    with federal standards, and EPA is working aggressively with our state
    partners to push that number higher.
        While these actions have improved drinking water across the
    country, we continue to look forward. For example, we are working on
    comprehensive revisions to update the Lead and Copper Rule (LCR) for
    the first time in nearly three decades, and we look forward to
    releasing the proposed rule for public comment. We are also continuing
    to work with primacy agencies to ensure that the current LCR is being
    properly implemented. We continue to coordinate with and provide
    support to the City of Flint and the State of Michigan in their efforts
    to ensure that all LCR requirements are being met, and the EPA has been
    and will continue to help the City of Newark and the State of New
    Jersey evaluate potential solutions to establish long term stability in
    controlling Newark's lead issues. Our goal in each of these cities is
    to protect public health, ensure public confidence in the public water
    system, and work collaboratively with the local and state experts to
    ensure federal requirements are met now and in the future.
        The EPA is also focused on emerging contaminants such as per- and
    polyfluoroalkyl substances (PFAS) and continues to make progress
    outlined in our PFAS Action Plan. The Agency will propose a regulatory
    determination for perfluorooctanoic acid (PFOA) and perfluorooctane
    sulfonate (PFOS) under the Safe Drinking Water Act by the end of this
    year and will propose nationwide drinking water monitoring for a suite
    of PFAS under the next Unregulated Contaminant Monitoring Rule cycle.
    The EPA recently concluded public comment on the draft Interim
    Recommendations for Addressing Groundwater Contaminated with PFOA and
    PFOS, another key commitment under the Action Plan, and is reviewing
    public comments. The regulatory development process to propose
    designating PFOA and PFOS as Comprehensive Environmental Response,
    Compensation, and Liability Act (CERCLA) hazardous substances is also
    well underway.
                              Priority Rulemakings
        The federal government has a poor track record in Supreme Court
    cases involving the Clean Water Act in which it was a party, including
    losing the last two cases (SWANCC and Rapanos) in which the scope of
    Clean Water Act jurisdiction was at issue. In fact, in the last three
    cases (Sackett, Hawkes, and NAM), federal positions failed to secure a
    single vote from any Supreme Court Justice. That is why under this
    Administration, the EPA Office of Water is focused on restoring the
    rule of law and providing regulatory certainty. Two priority regulatory
    actions to help accomplish these goals are the revision to the
    definition of ``Waters of the United States'' and revisions to
    regulations related to section 401 of the Clean Water Act.
           Revising the Definition of ``Waters of the United States''
        Under the President's Executive Order 13778, the EPA and the
    Department of the Army are engaged in a two-step rulemaking to: (1)
    repeal the 2015 rule defining ``Waters of the United States'' (WOTUS);
    and (2) draft a new regulation to revise the definition of WOTUS.
        On September 12, 2019, EPA Administrator Wheeler and Assistant
    Secretary of the Army for Civil Works James announced our final rule
    repealing the prior Administration's 2015 Rule and reinstating the pre-
    existing regulations (referred to as Step 1). Step 1 provides
    regulatory certainty as to the definition of ``Waters of the United
    States'' following years of litigation surrounding the 2015 Rule. The
    two federal district courts that have reviewed the merits of the 2015
    Rule found the rule legally deficient and issued orders remanding the
    rule back to the agencies. These and other courts have also enjoined
    the 2015 Rule from taking effect in a majority of the country, with a
    shifting patchwork of decisions adding to the regulatory uncertainty
    associated with the prior Administration's WOTUS definition.
        After an extensive rulemaking effort, the EPA and the Army have
    jointly concluded that multiple substantive and procedural errors
    warrant a repeal of the 2015 Rule. For example, the 2015 Rule:

          Did not implement the legal limits on the scope of the
    agencies' authority under the Clean Water Act as intended by Congress
    and reflected in Supreme Court cases;
          Failed to adequately recognize, preserve, and protect the
    primary responsibilities and rights of states to manage their own land
    and water resources;
          Approached the limits of the agencies' constitutional and
    statutory authority absent a clear statement from Congress; and
          Suffered from certain procedural errors and a lack of
    adequate record support as it relates to the 2015 rule's distance-based
    limitations.

        With this final repeal, the agencies will implement the pre-2015
    regulations that are currently in place in more than half of the
    states, informed by applicable agency guidance documents and consistent
    with Supreme Court decisions and longstanding agency practice.
        In December 2018, the agencies signed a proposed rule that would
    revise the definition of WOTUS informed by the guidance of that
    Executive Order. The agencies are in the process or reviewing more than
    600,000 comments received on the proposed rule and plan to take final
    action by this winter.
     Revising the Regulations Related to Section 401 of the Clean Water Act
        In April 2019, President Trump issued Executive Order 13868 on
    Promoting Energy Infrastructure and Economic Growth, and directed the
    Administration to take appropriate action to accelerate and promote the
    construction of pipelines and other important energy infrastructure.
    The President's Executive Order directs the EPA to consult with states
    and tribes on reviewing and updating guidance and regulations related
    to section 401 of the Clean Water Act.
        Section 401 gives states and authorized tribes the authority to
    assess potential water quality impacts of discharges from federally
    permitted or licensed infrastructure projects that may affect navigable
    waters within their borders. The EPA's existing certification rules
    have not been updated in nearly 50 years and are inconsistent with the
    text of Clean Water Act section 401, leading to confusion and
    unnecessary delays for infrastructure projects.
        On August 8, 2019, Administrator Wheeler signed a proposed rule to
    modernize implementation of Clean Water Act section 401. Through this
    rulemaking, the EPA is seeking to increase the transparency and
    efficiency of the section 401 certification process and to promote the
    timely review of infrastructure projects while continuing to ensure
    that Americans have clean water for drinking and recreation.
    Additionally, by modernizing the regulations from 1971, we are aiming
    to provide greater clarity and regulatory certainty for the water
    quality certification process. The public comment period is currently
    open, and we will take final action after carefully reviewing the
    comments we receive.
        In conclusion, the EPA Office of Water is busy administering our
    grant and loan programs, updating our drinking water regulations,
    modernizing our surface water programs, and conducting priority
    rulemakings to provide greater clarity and certainty for the regulated
    community. Chairman DeFazio, Chairwoman Napolitano, Ranking Member
    Graves, Ranking Member Westerman, and members of the Committee, thank
    you for the opportunity to discuss the Administration's priorities and
    policy initiatives for the National Water Program. I look forward to
    answering any questions you may have.

        Mrs. Napolitano. Thank you for your testimony.
        And we will start with the questions with the panel.
        Chairman DeFazio, you are up first.
        Mr. DeFazio. Thank you, Madam Chair, for letting me go out
    of order because of my schedule constraints.
        Administrator Ross, in your testimony, you say that we are
    going to go back to those regulations that existed immediately
    prior to the 2015 rule. So I assume that means the regulatory
    definitions from 1986?
        Mr. Ross. Yes, that is correct.
        Mr. DeFazio. OK. Are you familiar with all the criticism of
    a number of the groups that are supporting some of what you are
    doing of the rules in 1986, the arbitrary and inexact nature of
    those rules which subsequent administrations, Bush
    administration, Obama administration, tried to fix? So we are
    just going to go back to this very confusing time with that as
    a directive?
        Mr. Ross. Well, right now, our direction is to restore the
    rule of law, and the Obama 2015 rule, one, never went into
    effect in significant portions of this country. Several courts
    shut it down because the merits arguments that----
        Mr. DeFazio. OK. But are you going to try and write an
    interpretation? Because back at that time, 1986, the U.S.
    Chamber of Commerce, the farmers, everybody was saying, hey,
    this is horrible, this is unenforceable, it is arbitrary, it is
    capricious, it is different everywhere.
        So the Bush administration tried. OK. Then the Obama
    administration tried. And now you are going to say, no, we are
    not going to do what the Obama administration did. We are just
    going to go back to 1986. Is that it? Or are you writing a new
    rule?
        Mr. Ross. Well, we are doing both. One, we are responding
    to two courts that have remanded the 2015 rule back to the
    Agency as unlawful.
        Mr. DeFazio. Uh-huh.
        Mr. Ross. At the same time, we are restoring the existing--
    and one court said the imperfect but familiar 1986 regime--and
    we are redrafting and proposing a new definition.
        Mr. DeFazio. I mean, you are out asking for comment. Now,
    your initial proposal says that ephemeral streams are out. So
    what percent is that of what is covered today? Do you know?
        Mr. Ross. Actually, we don't. We do not have maps that
    actually----
        Mr. DeFazio. Well, actually, I think those maps do exist.
    The previous administration substantiated them. Scientists
    substantiated them. That is 18 percent. Let's try another one.
        Clean Water Act protections for intermittent streams, which
    are 52 percent of the Nation's streams. How many miles of
    intermittent streams would lose Federal protection? And are you
    asking the opinion that we should take all intermittent streams
    out? And I already told you the impact in a number of Western
    States.
        Mr. Ross. Two things. The last administration actually had
    the Administrator or the Deputy Administrator and the Assistant
    Administrator of Water testify and send letters to Congress
    saying that we do not have maps that show the Clean Water Act
    jurisdiction. I agree with them.
        As far as what our proposal is, right now we have drawn the
    line at ephemerals. Intermittents are categorically in, as
    opposed to the 1986 and the 1988 regime where they are in if
    they satisfy the significant nexus.
        Mr. DeFazio. Well, actually they did. The Obama
    administration did do an analysis. There were metrics. We have
    a document from 2015. But either you can't access the data or
    maybe that is part of what got wiped out by this administration
    in trying to undo science. I don't know.
        All right. Let's try one more. So let's go to wetlands. A
    lot of people care about wetlands, including hunters, fishers,
    recreationists, everybody. So what percent of our wetlands
    would be eliminated from Clean Water Act protections under your
    proposal?
        Mr. Ross. Actually, we also do not know that as well
    because----
        Mr. DeFazio. So--OK. Wait a minute, wait a minute, wait a
    minute. So you are proposing to undo protections on
    intermittent streams, ephemeral streams, and wetlands, and you
    don't know what the impact of what you are proposing would be.
    That is great. So is it 50 percent? That is the estimates we
    see. But you are saying you don't know. So OK. All right. Let's
    move on.
        So how about the economic impacts? If I could have the
    chart back up. That is your own chart there.
        [Slide.]
        We talk about--oh, downstream inundation damages, flood
    risk. What about that? Greater drinking water treatment and
    dredging costs. These are desirable outcomes? This is like--
    seriously? Who is going to pay for that stuff?
        Mr. Ross. So in our economic analysis, we did qualitatively
    discuss if there would be reduced Federal jurisdiction----
        Mr. DeFazio. Qualitative, not quantitative?
        Mr. Ross. Because we do not have the data----
        Mr. DeFazio. OK. So you don't have any data. So maybe
    before you propose anything, you should go out and get some
    damn data.
        Mr. Ross. That is exactly what I am trying to do. The last
    administration and the prior administrations failed to develop
    maps of waters in the United States in this country. In our
    proposal, if you take a look at our--at our--we actually----
        Mr. DeFazio. OK. Let's try an easy one. This is an easy
    one. This is an easy one, because this comes from the Bush era,
    Republicans.
        In 2007, EPA estimated 16,000 existing permitted facilities
    were located on intermittent, ephemeral, or headwater streams.
    So if those streams, some percentage of them--you don't know
    what--are taken out by your new rule, what happens to those
    permits?
        Mr. Ross. Well, it depends. If they still satisfy the
    definition of point source and conveyance, they still are
    regulated under the Clean Water Act.
        Mr. DeFazio. But you are saying some percent. Eight
    thousand, ten thousand, twelve thousand polluters would no
    longer be regulated because those permits would just go away
    because you deemed that an intermittent or an ephemeral stream
    is never going to put that crap into a permanent stream?
        Mr. Ross. One, we are not proposing to reduce jurisdiction
    over intermittent. And, two, if they still satisfy the
    definition of point source, they will be regulated. And, three,
    the States have robust environmental programs under State law.
        Mr. DeFazio. No. Many States, in fact, can't exceed Federal
    Clean Water Act requirements. So if you deregulate someone and
    they no longer are regulated by the Feds, many States have laws
    saying they can't regulate them. They would have to go out and
    pass a new law and then they would have to set up a new
    regulatory system with constrained resources, something that
    the Federal Government has been doing very well. But we are
    going to abandon that practice. For what reason?
        Mr. Ross. Because of the rule of law. The last
    administration----
        Mr. DeFazio. The rule of law.
        Mr. Ross [continuing]. Proposed a rule that courts have
    already struck down.
        Mr. DeFazio. OK. Let's go to one last one. I talked about
    the TVA spill. Horrible, horrible disaster. And later, a bunch
    of workers died who were cleaning it up, let alone the
    permanent damage to the environment and the people who lived
    adjacent to it, all that. And you are going to reverse those
    efforts that will allow up to 90 percent more pollution by
    these persistent toxic materials.
        Why is that? It has a tiny incremental cost--well, of
    course, you probably don't have that data--on the cost of
    energy generation or availability. But, hey, you know, might be
    a mill per kilowatthour, so what if we inundate thousands of
    acres with toxic materials, kill some more people, whatever.
        Mr. Ross. So the administration is taking a look at the
    coal combustion rule, which is actually a different program
    office than mine, so I am not working that particular rule, but
    I understand----
        Mr. DeFazio. OK. But I am sure they are going to follow the
    rule of law.
        Thank you very much. I am just pleased you are here today.
        Thank you, Madam Chair.
        Mrs. Napolitano. Thank you, Mr. DeFazio.
        Mr. Westerman.
        Mr. Westerman. Thank you, Madam Chair.
        Mr. Ross, I am the ranking member on the subcommittee, but
    I am also a licensed professional engineer. I spent over two
    decades doing engineering work, and I have actually worked on
    NPDES permits, on stormwater discharge permits. I have been on
    the other side of it and seen the regulations that come down
    from the Federal Government, and also have worked with people
    who have probably forgot more about permitting and what you
    have to do to actually meet the requirements of permitting than
    the collective knowledge of this committee.
        It is a lot different when you are in the real world
    dealing with what comes down from Washington, DC. And I am
    curious--and the chairman has stepped out--but these maps and
    information he is talking about, I can tell you a lot of
    engineers that would really like to see those maps and
    information if they are out there.
        Could you point us to where those maps are that the
    previous administration developed?
        Mr. Ross. Well, the previous administration actually
    provided them to Congress but did not include them in the
    docket for the 2015 rule, because they determined that they
    were not representative of the jurisdictional waters of the
    Clean Water Act. They are effectively based on the National
    Hydrography Dataset that the USGS runs, and also the National
    Wetlands Inventory, which the Fish and Wildlife Service run.
        The National Hydrography Dataset, for example, cannot see
    and cannot tell the difference, even at high resolution,
    between intermittents and ephemerals other than in only certain
    portions of the country. And based on the data that you guys
    have been citing earlier today, the 117 million Americans was
    based on the National Hydrography Dataset at medium resolution,
    which means it can't see ephemerals.
        The National Wetlands Inventory has way more wetlands on it
    than jurisdictional wetlands, because it was created for a
    different purpose. So those maps are available. They were
    submitted to Congress in the last administration, but they were
    not included in the rulemaking for the Obama rule because they
    are not representative.
        So my job is to try to close that gap. The last
    administration believed that we did not have the ability to map
    this. I disagree. And so we are working with our Federal
    partners to try to map this so that 5, 10 years in the future,
    people will be able to stand on the landscape and identify a
    Federal versus a State water. I believe we have the skills to
    do it. It is just going to take us the time to do it.
        Mr. Westerman. And it sounds to me like you are actually
    trying to apply science, trying to use the best mapping
    technology to come up with something so that people who are out
    there trying to deal with these regulations actually have
    something that they can use to meet the requirements. If you
    don't know what the requirement is, it is hard to meet the
    requirement.
        I have a picture--I am not sure if it is going to be able
    to be put up on the screen, but it is a 4-acre pond that a
    constituent of mine sent, in a development in Texarkana,
    Arkansas, that they went through every permitting regulation,
    jumped through every hoop and hurdle, they built the pond for
    retention water, did a remarkable job of improving the
    environment in this area, but now the Corps of Engineers has
    come back--here's a picture of the pond--and told them that
    they have to pay $340,000 of mitigation credits or remove this
    dam. That is not something they knew on the front end.
        [Slide.]
        So I applaud the administration for trying to put some
    sanity into these regulations so that people know how to deal
    with them.
        How will the new WOTUS definition provide some clarity and
    end years of uncertainty over where Federal jurisdiction begins
    and ends?
        Mr. Ross. Well, first and foremost, we started with the
    touchstone. We took a look at the case law, the Supreme Court
    guidance, to try to figure out where would the scope of our
    authority begin and ends. And so with that--you know, my job is
    to protect the Clean Water Act. And if we continue to drop
    regulations that push the constitutional envelope of our
    authority, at some point, a court is going to declare the
    definition of waters in the United States incapable of
    definition. That will actually create significant tension for
    the long-term legality of the Clean Water Act.
        So my goal is to defend the Clean Water Act, and we are
    doing that by staying in within the bounds of our legal
    authority and then regulating the known waters. The traditional
    navigable waters, the perennial waters, we have actually
    proposed to include intermittent waters, and then the adjacent
    wetlands that we know connect on a regular basis to all of
    those waters.
        The goal is certainty, predicability, clarity. It is out
    for comment. We have gotten 600,000 comments. We are taking our
    time to analyze that, and we will move forward with finalizing
    it as soon as we possibly can.
        Mr. Westerman. And the chairman also suggested that we take
    more time so that we could apologize. I would like to take some
    time and apologize to all those farmers, those construction
    workers, everybody that is out there in this country trying to
    do the right thing, to make the economy better, to protect our
    water quality. They don't want to sidestep the rules or avoid
    the rules. They want to know what the rules are so that they
    can meet the regulations, so that they can carry on with their
    business, and so that they can provide all the needs that they
    provide for this country.
        So I will take a moment and apologize for the ineptitude of
    the Federal Government to give them the tools that they need to
    do their job. That is what most people want to do. They don't
    want to destroy the environment. They don't want to pollute
    streams.
        Just like this pond up here, that pond provides erosion
    control, improves water quality. But because of some regulation
    that somebody felt like on one certain day, now they are saying
    you have got to go in and tear it out at a huge cost or buy
    mitigation credits. There is no common sense in what is going
    on in many of these rules that are getting passed down.
        So again, I applaud the administration for trying to put
    some common sense into the policy to find out what the science
    is, to provide the maps, to provide the delineations, so that
    people can do the work that they are trying to do every day.
        Section 101(b) of the Clean Water Act states that it is the
    policy of the Congress to recognize, preserve, and protect the
    primary responsibilities and rights of States to prevent,
    reduce, and eliminate pollution, to plan the development and
    use, including restoration, preservation and enhancement of
    land and water resources, and to consult with the Administrator
    in the exercise of his authority under this chapter.
        Wouldn't you agree that it was the intent of Congress,
    through these words, to recognize the primacy of States in
    protecting their own waters over that of the Federal
    Government?
        Mr. Ross. I agree. I think that has been lost on the
    Federal Government in the past several decades.
        Mr. Westerman. Do you think the States understand the water
    issues in their areas better than the Federal Government can
    understand those issues from afar?
        Mr. Ross. I have had the honor of working for two different
    States in two different parts of the country, very dry in
    Wyoming, wet in Wisconsin. When I left this city and went to
    work for the States, I had a misinformation and misbelief that
    people in DC knew the resources best and the landscape. I was
    wildly wrong.
        It wasn't until I went and worked for the States that I
    recognized that they know their resources best. They know how
    to manage their resources best. Our job is to make sure that
    they are given the resources and the ability to manage their
    own resources and work in collaboration with the Federal
    Government. I didn't know that before I went and worked for the
    States.
        Mr. Westerman. Thank you. I yield back.
        Mrs. Napolitano. OK. Assistant Administrator, as a followup
    to your statement, if I take your statement on the need for
    additional maps on the status of streams and wetlands at face
    value, then why would you propose to move forward on a proposal
    to change that jurisdiction before you have that data?
        Mr. Ross. Well, we are moving forward, one, because the
    2015 rule has been ruled and sent back to the Agency as
    illegal. The second is we are restoring the familiar framework
    that folks have been operating since the mid-eighties. But we
    are moving forward with a new proposal because it is time to
    end the uncertainty and the confusion that the ranking member
    mentioned that the farmers, developers, the regulated community
    struggles with, a confusing definition, and every time a court
    issues a different decision, jurisdiction changes. It is time
    for us to do our job and provide a clear definition of ``waters
    of the United States'' that will withstand judicial scrutiny.
        Mrs. Napolitano. I hope you do so with the input from the
    people involved.
        That will begin the questionings. And thank you for your
    questions--you answered the questions. And we have a timer to
    allow 5 minutes for each question from each Member. If there
    are additional questions, we will have a second round or more
    as necessary.
        As in my district, the Department of Defense left behind
    the legacy of contamination that has threatened the health of
    my constituents for many years. Today, communities across the
    country are facing the same concerns with the PFAS pollution.
    The EPA's PFAS Action Plan recognizes the adverse health
    effects from exposure to this legacy contaminant.
        On the next panel, we will hear from a witness who has been
    personally impacted by the PFAS contamination in his community.
        Do you think PFAS pollution poses a risk to human health?
    Yes or no.
        Mr. Ross. Yes. Where we have exposure and we know the
    toxicological profile of the chemicals, yes, there are
    communities that are impacted by PFAS pollution.
        Mrs. Napolitano. Do you agree that a multifaceted effort to
    reducing additional release of PFAS chemicals and cleanup of
    those already in the environment are necessary to limit the
    exposure to these pollutants?
        Mr. Ross. Yes. That is, in fact, the touchstone of our
    national action plan, is to take a holistic view of all the----
        Mrs. Napolitano. How long will it take? We are in a crisis.
        Mr. Ross. Well, we are actually moving quickly on--one is
    the first action plan across multimedia offices that the Agency
    has ever developed, and it is a holistic approach that grapples
    with both the chemical entry into the market, the cleanup, the
    liability associated with it, the water quality standards, the
    science----
        Mrs. Napolitano. Have you set the standards yet?
        Mr. Ross. Well, we have--in the PFAS Action Plan, we
    committed to developing a certain set of rules. And, for
    example, on the Safe Drinking Water Act, we are moving forward
    with the regulatory determination process for PFOA and PFOS--P-
    F-O-A, P-F-O-S. It is hard to say those. And so we do--and we
    committed to getting that done by the end of the year, and we
    are still on schedule.
        Mrs. Napolitano. Before the end of the year, I hope to
    receive some information on that, sir. It is very important.
        I would like to jump to your letter dated September 16
    about EPA's draft National Water Reuse Action Plan released on
    September 10. And we have discussed that. I am passionate about
    water reuse and innovative technologies so that communities can
    reuse the water, they clean it up, especially in places like
    California where resources can be scant. And I appreciate what
    your agency is doing to move the ball forward.
        But can you describe the administration's Water Reuse
    Action Plan and how it seeks to discourage the development and
    implementation of new technologies and practice water reuse.
    And how are you working with other Federal agencies, such as
    the Bureau of Reclamation, who has a long history of water
    recycling with their title XVI program, the water recycling
    program?
        Mr. Ross. Well, one, I want to thank you for your interest
    and your leadership on water reuse. Very rarely do Federal
    Governments and State and local governments think holistically
    about what we are going to need 10, 15, 20 years from now. We
    usually react to crises.
        The National Water Reuse Action Plan is designed to make
    sure that we have a sustainable source of new supply of water
    5, 10, 15, 20 years from now, rather than reacting to a
    significant drought, for example.
        We are working in collaboration with our Federal
    Government. In fact, when I announced the National Reuse Action
    Plan, the Bureau of Reclamation Commissioner was with me,
    Department of the Interior was with me, the Department of
    Energy, Council on Environmental Quality, Department of
    Agriculture. It was a broad effort across our Federal family to
    work with our stakeholder engagement. And so the Federal family
    is fully invested in this effort.
        Mrs. Napolitano. Would this committee be able to find out
    what the outcome of that collaboration is?
        Mr. Ross. Absolutely. One, I think we sent you the draft
    action plan. I encourage you to read it. I think our team did a
    fantastic job with it. Our next 90 days, it is a public comment
    period, but we are really hoping it to be a public commitment
    period.
        There are 46 actions identified in the action plan under 10
    strategic objectives, and we are looking for partners to
    champion each one of those action items, both from
    accountability standpoint, identify themselves, and put
    themselves on a shot clock. Our Federal partners will be
    committed to doing several actions in the action plan.
        Mrs. Napolitano. What can Congress do to further promote
    water?
        Mr. Ross. Well, there's a lot that Congress can do. One,
    obviously, you have the power of the purse. And I have actually
    leveraged the WIFIA loan program and identified water reuse as
    one of our national strategies. And I am thankful that, in the
    last year, we actually did receive several applications that
    will incentivize water reuse in large areas.
        But it is also helping provide resources to rural America.
    Where large communities have the resources and the tax base to
    go after a ratepayer, small rural America struggles with water
    resources, and I think Congress needs to spend some attention
    thinking about rural America.
        Mrs. Napolitano. Thank you very much.
        I now recognize Mr. Bost.
        Mr. Bost. Thank you, Madam Chairman.
        First off, let me start off, Mr. Ross, by saying that I
    don't think there is anybody on this dais or in this Congress
    that wants to ruin water for our children and our
    grandchildren. I think what you do is good. But I think
    whenever you made the statement what you wanted to do was
    follow the law that is produced by Congress and implement it
    correctly with the best science possible, and that is what we
    want to see.
        That being said, in drafting regulation, the Agency
    estimates avoiding costs of up to $340 million. You know, I
    have met with several stakeholders in my district about the
    2015 water rule. The most common concern expressed was the
    haphazard way the rule was applied and potentially direct costs
    associated with permitting. And it didn't matter whether it was
    farmers or it was other businesses. But the other concerns are
    impacts the rule has on the economic activity and investments
    overall. In my district, aggregate providers indicated that in
    addition to their own direct costs, the rule was suppressing
    building an investment by their own customers.
        Shouldn't the Agency require to conduct more rigorous
    economic analysis of their proposed rules to include impacts on
    jobs and the economy overall?
        Mr. Ross. Well, the answer is yes. Under Executive Order
    12866, we actually do take a look at the broad economic
    consequences of a proposed rule. And so in--our step 2
    proposal, for example, we did go after, to the best we could--
    because some of the questions we were talking about earlier, we
    lack sort of the mapping capability to watch changes in
    jurisdiction. But we do take into account economic impact into
    our rulemakings. And we have a several-hundred-page economic
    analysis that gets into that that we can share with the
    subcommittee.
        Mr. Bost. OK. And those are the important things that we
    need to know as we move forward.
        But let me tell you that as a Member that spent 20 years in
    the State legislature as well and watching the States try to
    implement their own rules, actually having to get a discharge
    permit, they said just for recording purposes, but then later
    came back and putting on businesses that could not afford it
    $5,000 and $10,000 discharge charges through the State. Every
    time we turn around, whether it is a small business, a medium
    business, a large business, whether it is agriculture, whether
    it is aggregate, or whatever the business might be, the problem
    is, is they never really know what is expected of them and we
    keep moving the goalpost every time we turn around.
        Now, I said from the start that the concern that I have is
    that I want clean water for my children and grandchildren. That
    being said, your job is to do what you brought up earlier while
    you were trying to explain, and that was it is the rule of law,
    created by us, not by you. I think that the previous
    administration tried to go above and beyond that, and not the
    rule of law but the rule of administrative rule, to try to
    implement their own ideas without coming through Congress.
        If a Member of Congress has a problem with what you are
    doing and they can say that, well, they are following the law,
    and they are not happy with the level of that law, then we need
    to get that done, not you.
        I am very impressed with your ideas of what you are
    proposing to do and how you are moving forward, and the idea of
    allowing people who are making investments in this Nation,
    whether it is a farmer or whether it is a customer or a company
    that produces widgets, whatever that widget may be, that they
    at least know the rules of the game as they go in and know that
    the goalpost can't keep getting moved.
        And that was the problem with this rule, and it has been
    for many years, because it got to the point that the general
    public was feeling like that the EPA wanted to control the
    drops of water running off my cap when it rained. I believe
    that it is very clear what the law is, and I think you are
    doing a fine job. And thank you for your time.
        And with that, I yield back.
        Mr. Ross. Thank you.
        Mrs. Napolitano. Thank you, Mr. Bost.
        Ms. Mucarsel-Powell, you are--I am sorry? OK. Thank you.
        Ms. Mucarsel-Powell, you have the floor.
        Ms. Mucarsel-Powell. Thank you.
        Good morning, Mr. Ross. I represent the southernmost
    district in the State of Florida, Florida Keys. The Everglades
    is a huge part of my district. And as you probably know, the
    Everglades are crucial for all of Florida. The health of the
    Everglades is essential for our economy, for our health, and
    for our wildlife.
        The Everglades also naturally filters out toxins and
    harmful nutrients like phosphorus. Higher levels of these
    pollutants lead to toxic algal blooms, countless dead fish, and
    red tides. Clean water from the Everglades also provides clean
    drinking water for more than 8 million Floridians alone.
        Now, the Florida delegation has been working closely
    together, on a bipartisan basis, to push forward Everglades
    restoration. We recognize the importance of these wetlands. And
    it seems that now, the administration, after having adjusted
    its budget request for Everglades restoration to the full $200
    million, which I requested, it is beginning to recognize their
    importance too.
        But what is very difficult to understand is that the
    administration's actions are in conflict with each other. On
    the one hand, it says that it wants to fund Everglades
    restoration. And then on the other hand, it is working to
    rewrite regulations to make those protections even weaker for
    our water in Florida.
        So either the Trump administration and the EPA care about
    Florida or they don't. So under your position--and I quote
    this--``under cooperative federalism, those waters not covered
    by the Federal Clean Water Act would be addressed by the
    individual States.''
        We saw what happened back in 2016 under the previous
    Governor, his administration. What they did was the Florida
    Department of Environmental Protection updated its regulations
    to permit more toxic chemicals to come into the water.
        And I have some images that I would like for you to take a
    look at. I don't know--have you seen the toxic algal blooms?
    This is 2 years after the Governor actually eased the
    regulations, permitting more toxic chemicals to be released
    into the water.
        [Slides.]

      Images of Toxic Algal Blooms in Florida, Submitted for the Record by
                          Hon. Debbie Mucarsel-Powell
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Ms. Mucarsel-Powell. And I heard you talking about economic
    impact. We had to close several businesses along both the east
    and the west coast of Florida. Fifteen people ended up in the
    emergency room. We saw images of thousands of dead fish, dead
    manatee, dead dolphins. We continue to work on this issue.
        So if I hear you correctly, you are saying that you want to
    leave it up to the States to regulate their own waters, right?
    Is that correct?
        Mr. Ross. Actually, both Federal and State regulation,
    depending on the----
        Ms. Mucarsel-Powell. Both Federal and State.
        Can I ask you what you are currently doing? How are you
    working closely with the Army Corps into how you regulate those
    toxins that are coming into Lake Okeechobee that have caused
    these green-blue algal blooms to be released?
        Mr. Ross. So we are working very closely with the Army
    Corps of Engineers. I have talked to R.D. James and Mr. Fisher
    specifically about this, working in partnership. Our teams have
    been down, actually, touring Lake Okeechobee with----
        Ms. Mucarsel-Powell. When was that, Mr. Ross?
        Mr. Ross. Earlier this year. I sent my Principal Deputy
    down to actually take a tour of Lake Okeechobee.
        Ms. Mucarsel-Powell. And have you formed a plan of action
    here?
        Mr. Ross. Well, there are a couple of things that we are
    doing. One, we are working with the State and working with the
    Corps to try to figure out the lake levels associated with, you
    know, how do you actually grapple with the lake levels and
    discharges. There is a plan in place in working with the
    Department of Agriculture----
        Ms. Mucarsel-Powell. And what about regulating the
    pollutants that are coming into the lake?
        Mr. Ross. Well, so some of that is nonpoint source
    pollution that is outside the scope of the Clean Water Act. But
    I am actually spending a lot of time and energy on excess
    nutrients in surface water. It is one of--it is one of our--we
    have our regulatory tools and total maximum daily loads and all
    those enforcement tools. But we also need to do a better job
    tapping into our creative market-based mechanisms. And so over
    the course of this year, I have developed a policy to
    incentivize market-based mechanisms.
        Ms. Mucarsel-Powell. If you can provide that plan for me, I
    would really appreciate it. I am almost out of time.
        Mr. Ross. I would be happy to.
        Ms. Mucarsel-Powell. One more question that I had for you.
    In south Florida, we have wet and dry season, as you are aware.
    And during some dry seasons, which of course fluctuate year by
    year, significant portions of the Everglades dry up. And I am
    deeply concerned that the administration's actions will leave
    much of the Everglades without the Clean Water Act protections.
        Can you assure me today that--to me and my Florida
    colleagues--that any rule that the administration implements as
    it pertains to the Clean Water Act will ensure that the
    Everglades and its watershed will receive full Clean Water Act
    protections, despite dry areas during dry seasons?
        Mr. Ross. So my understanding is the Florida Everglades are
    the wetlands that would remain subject to our jurisdiction in
    our proposed rule, one.
        Ms. Mucarsel-Powell. So can you make that assurance to me
    today?
        Mr. Ross. Well, holistically, it is a large landscape down
    there. And so if there are individual----
        Ms. Mucarsel-Powell. So is that a no?
        Mr. Ross. It is a yes, qualified by I can't speak to every
    single wetland down in Florida. But the other thing I want to
    mention is Florida has a really remarkable wetlands protection
    program. And so they regulate wetlands----
        Ms. Mucarsel-Powell. You mean the State?
        Mr. Ross. The State of Florida has a more----
        Ms. Mucarsel-Powell. You can see what happens when we leave
    it up to the State.
        Now, so is the EPA under the Trump administration going to
    open up the Everglades for further development and pollution,
    if you are not willing to make that commitment to me today?
        Mr. Ross. I have no plans to open up the Everglades for
    further development, but that really is a local and State
    issue.
        Ms. Mucarsel-Powell. Thank you.
        Mrs. Napolitano. Thank you, Ms. Mucarsel-Powell.
        Mr. Palmer, you have the floor.
        Mr. Palmer. Thank you, Madam Chairman.
        First of all, Mr. Ross, I want to go back to the question
    about mapping. And I would like to know, is it possible to use
    maps for regulatory purposes?
        Mr. Ross. So right now, the NHDPlus and the National
    Wetlands Inventory are not used for regulatory purposes. And,
    in fact, we can submit significant letters from the last
    administration saying that. In fact, EPA published a blog in
    2014 saying they cannot be used for regulatory purposes now or
    ever.
        The last word I don't agree with. I actually think we can
    improve these maps and use them in the future. But we have work
    to do.
        Mr. Palmer. So you think you could use maps like the
    National Hydrography Dataset and the National Wetlands
    Inventory, those type maps, for regulatory purposes, or
    particularly for jurisdictional determinations?
        Mr. Ross. We use them--the Army Corps of Engineers uses
    them a little bit as desktop tools as they go out into the
    field before they go do their field verification. So they are
    useful tools as desktop before they go out. But actually making
    decisions based on those maps, no, they are not designed to do
    that, and they have never been designed to do that.
        Mr. Palmer. Are they complete? Are they----
        Mr. Ross. No.
        Mr. Palmer. They are not?
        Mr. Ross. They are not complete. The number one flaw on the
    National Hydrography Dataset is that they don't really see
    ephemerals. There are portions of the country--and the USGS,
    Dr. Reilly and his team, are actually working to improve the
    resolution to see additional water resources. But right now,
    they really struggle between differentiating between ephemerals
    and intermittents.
        Mr. Palmer. And it seems to me that we are--we are--the
    previous administration, particularly, and maybe the
    administration before that, is making decisions on incomplete
    datasets.
        Mr. Ross. Well, actually, the last administration decided
    not to use those maps as part of their rulemaking. They
    specifically did not use them and did not put them in the
    docket.
        Mr. Palmer. OK. That is what troubles me, is we heard a
    very impassioned--you received some pretty impassioned
    questioning from the chairman.
        And I know people have great concerns. We have gone through
    water quality issues before. But it is--first of all, it is
    insulting to infer that anyone wants to have filthy water, that
    anyone wants to destroy water for recreational use, much less
    drinking.
        And the thing that gets me is, going back to the 2015 rule,
    when this first came about, is that it appeared to rely on data
    estimates that were really about supporting an environmental
    agenda. They didn't do original research. Is that what you
    found?
        Mr. Ross. Well, my--and granted, I wasn't around. But that
    is why I said in my opening statement that my job is to begin
    with the law as it is written, not what I want it to be. I
    believe the last administration was pursuing policy objectives
    before looking at the law.
        Mr. Palmer. And that is my point. The last administration
    transferred benefits from estimates that really didn't apply to
    the rule. And it became--I really think it became more about
    more Government control than it was really finding solutions to
    the problems that we do have.
        And I worked for two international engineering companies,
    one of which was Environmental Systems. And I know we have got
    the technical ability to make dramatic improvement in water
    quality, air quality, land use, pretty much anything you want
    to do. But that has to be your primary objective. It can't be a
    political objective. If it is just a political objective and
    you don't apply the right science, the right engineering, the
    right technology, you don't get the result that you really want
    to have, unless, of course, the only result you really want to
    have is control.
        So that is what I am hoping will come out of this
    administration, is a science-based approach to water quality
    and not just a massive attempt to take over whole aspects of
    individual lives that impact their property and their ability
    to support themselves.
        Mr. Ross. We have great scientists at EPA and in the Office
    of Water, and I rely on them every single day. And so our job
    is to take a look at science--contrary to what people write
    about, we are actually looking at science as we are making our
    decisions.
        Mr. Palmer. Well, I appreciate the fact that you are here
    today. I want you to answer the questions of all the colleagues
    on both sides of the aisle accurately and confidently. And even
    when it appears that you are being browbeaten, to speak
    truthfully about the work that you guys are trying to do.
        With that, Madam Chairman, I yield back.
        Mrs. Napolitano. Thank you, Mr. Palmer.
        Mr. Lowenthal, you are on the floor.
        Mr. Lowenthal. Thank you, Madam Chairman.
        Welcome, Administrator Ross. Thank you for testifying
    before this committee in this hearing.
        Last year, the administration also proposed revisions--
    another part of the revisions to the Clean Water Act were the
    regulations on wastewater. This blending proposal could allow
    for the discharge of untreated sewage into our waterways. We
    have seen, in my district, which is a coastal district, we have
    seen the results of this, what I consider, misguided approach.
    During times of heavy rain, wastewater systems have failed,
    which results, you know, then when we allow for this, weeks-
    long closure of our beaches and our waterways, which have to be
    done in order to protect the public from untreated,
    contaminated sewage.
        You know, in 2005, EPA withdrew a similar proposal in part
    because of the lack of evidence that blending will not
    adversely affect the environment or public health.
        Are you aware of any new analyses of the public health or
    the environmental impact of blending?
        Mr. Ross. The team actually has done extensive stakeholder
    outreach and is gathering the additional information. And let
    me be clear. We are not talking about discharging raw sewage
    into the waters of the United States or in other waters. That
    is not what our policy proposal is about. In fact, you put your
    finger on the real issue is, in wet weather events, if you get
    too much flow through secondary treatment after the grit
    screens and the primary clarifiers and the secondary treatment,
    we primarily rely, most places, on bugs. Too much water will
    blow out those bugs. If you don't manage that, then the actual
    real environmental concern that I have is that you blow those
    bugs out, and then you don't have the wastewater treatment
    system up and running.
        So what we are trying to grapple with is, how do systems
    manage the secondary treatment in a wet weather event such that
    they don't blow out the bugs?
        Mr. Lowenthal. But you also--we need to know--do we know
    how many treatment or publicly owned treatment works engage in
    this process of blending, and are you going to gather that, and
    are they monitoring? Because, as you said, it is not we are
    blowing out sewage. Are we monitoring, EPA, the presence of
    pathogens in these blended, and could you give us that data?
        Mr. Ross. One, I don't have the data with me, and the team
    is looking at it, but what we really do in most circumstances
    where the States have authorized blending, and a lot of times
    the States are the ones here who are the permanent authority.
    If they are protecting the bugs, they bring the water back in
    to the disinfection system. That takes care of the pathogens.
    So, when they blend it back in before it gets discharged, it
    does get disinfection.
        Mr. Lowenthal. Well, my concern is not to find some magic
    bullet like blending. We are really talking about investment.
    Too many cities have decades-old treatment infrastructure.
    Their capacity hasn't kept pace with population growth. But
    these investments depend upon Federal support. Earlier you
    talked about the successes of the WIFIA program, and we also
    have the State Revolving Fund program. Both of those are the
    backbone of our water infrastructure investment. What I would
    like you to explain to me is why this administration has
    proposed severe cutbacks to both those programs.
        Mr. Ross. Well, there are two answers. One, I think in the
    administration's proposals on budgets, they are trying to
    balance, you know, kind of the budget, fiscal responsibility
    and some of the budgets cuts they are proposing were to rely
    more on the States and----
        Mr. Lowenthal. So you are saying rely more on the States
    and so increase or allow the States to propose these blending
    programs rather than provide the infrastructure because this is
    an old and, in many cases, infrastructure that really needs
    rebuilding. And you have talked about the successes of these
    programs.
        Mr. Ross. Yeah, so, two things. One, my job first and
    foremost is to spend the money that Congress appropriates as
    intelligently, as appropriately as possible. So I get
    appropriations, and our job is to wheel the money out to grant
    loan programs, but on the blending issue, that is actually one
    of the questions is right now, because there is a different
    regulatory regime across the country. Because of an Eighth
    Circuit decision called Iowa League of Cities, there are
    different rules at play depending on what State you reside in.
    That is not regulatory certainty for the regulated community.
        And what happens is there are--the entities that may have
    to be forced to run water round to protect their bugs are faced
    with some kind of contingent liability, and rather than--they
    actually have to think about upgrading their facilities through
    huge capital investment rather than thinking about managing the
    episodic overflow.
        Mr. Lowenthal. I----
        Mr. Ross. If you are talking about infrastructure
    investment, it is actually this is a more efficient way to go
    after it.
        Mr. Lowenthal. It may be a more--my time is up, but I would
    like to point out again that we are talking about, when
    treatment facilities cannot handle, because of the peak flow of
    wastewater, and rather than investing in infrastructure, the
    administration is proposing cutting infrastructure investment.
        Thank you, and I yield back.
        Mrs. Napolitano. Thank you, Mr. Lowenthal.
        Mr. LaMalfa, you have the floor.
        Mr. LaMalfa. Thank you, Madam Chair. I appreciate it.
        And, Mr. Ross, thank you for appearing with us today.
        You know, again, going back to the 2015 rule,
    reinterpreting the Clean Water Act of 1972 under the Obama
    administration, a rule likely tailormade for environmental
    groups to find solace and happiness with a new interpretation,
    so--yet they still consistently sued the Federal Government
    from that point forward.
        So, I guess, you know, rhetorically: How much money do we
    have to spend defending the Federal Government's action from
    the environmental groups?
        Then, on the other side of the coin, how much has to be
    spent preventing the economic development of land that is
    already in production for energy or even agriculture, clearly
    exempt activities under the original Clean Water Act of 1972--
    telling farmers and ranchers, these are clearly exempt items?
        So, you know, the courts could have struck down the Clean
    Water Act, but they went after this 2015 rule. So, until last
    week, we had 22 States that were following one set of rules and
    28 that were doing another set of rules. So we had kind of a
    mess there.
        So let me zero in on a couple of things. Really important
    in my district in northern California, we have had activities
    to enforce against farming and ranching activities where fallow
    land had been brought back into production or maybe a change of
    crop.
        Reinterpretations of saying that you now need to have, go
    through a permit process 3 years long generally and hundreds of
    thousands of dollars. I don't know how you can spend hundreds
    of thousands of dollars getting a permit to do something that
    is already clearly exempt under the Clean Water Act for farming
    and ranching specifically. We can get into mining later. But so
    millions of dollars of fines have been paid by some growers
    under WOTUS, under reinterpretation of what constituted a need
    for a permit under Clean Water Act.
        So, with this ruling and with it having stood up in court,
    is the EPA and Army Corp, some combination, going to consider
    any steps to pay restitution to previous penalties that have
    been paid by farmers and ranchers, sometimes to the tune of
    millions of dollars, as a result of this abysmal 2015 rule and
    having been struck down by the courts?
        Mr. Ross. That is a fairly big-ticket legal question that I
    am not prepared to answer. My answer is I am not aware of any
    discussion of that kind.
        Mr. LaMalfa. Are you aware that at least the Agency is
    capable of doing so, having been found that it was out of
    bounds----
        Mr. Ross. Those----
        Mr. LaMalfa [continuing]. From one administration to
    another, having now gone through the court process, the legal
    process?
        Mr. Ross. At this point, those are issues I would prefer
    not to speculate on. What I will tell you is I am aware of two
    core principles. It is time for the Federal Government, whether
    or not it is Congress or EPA, to step up and give clear
    definitions so the goalposts stop changing, one.
        Two, I strongly believe in investment certainty. I used to
    work for the private sector. I understand what it takes to
    operate a business. I have represented folks who operate a
    business, and I understand investment certainty.
        Mr. LaMalfa. Again, coming back to what rural America has
    been dealing with on this, you know, some of my colleagues
    talked about ponds. You have people had made, put together
    stock ponds just to store water, and the benefits of those, as
    was discussed, was for erosion control and flood control to an
    extent, all well-intended, good things happening in rural
    America.
        So I thank the Agency for paying more attention and
    listening to what happens in rural America instead of just
    large buildings here in Washington, DC. So farmers and ranchers
    and others that do outdoor activity are rejoicing over the
    direction you are going with this, but I still am concerned how
    much is left in the pipeline litigationwise or what have you
    that we are still going to have local enforcers like we have
    seen in northern California, whether it is out of the EPA
    office or the Army Corps office, working together, to basically
    freeze agricultural and other activities because of the threat,
    sometimes not even carried out, of a fine or an action against
    them.
        Can you tell me that this activity will stop and that the
    divisions out in the field are going to be basically instructed
    to stop these enforcement activities outside of the intent of
    the law?
        Mr. Ross. Well, as a former prosecutor for a State, I can
    tell you that, when I talked, it carried a significant chilling
    effect. We will continue to implement our enforcement programs
    under the Clean Water Act. We have a robust enforcement
    program, but our job is to take a look at what the law requires
    before you make an enforcement decision, and I can guarantee
    you our teams are doing that.
        Mr. LaMalfa. I thank you for that because, again, it is
    about enforcing the law as written and achieving the goal of
    doing activities that do help keep the water clean.
        So, with that, Madam Chair, I yield back. Thank you.
        Mrs. Napolitano. Thank you, Mr. LaMalfa.
        Mr. Carbajal, you have the floor.
        Mr. Carbajal. Thank you, Madam Chair.
        Welcome, Administrator Ross.
        For the past 2\1/2\ years, the administration has focused
    on an outdated 20th-century energy policy to meet the needs of
    the 21st century. From issuing misguided Executive orders
    promoting dirty fossil fuels, increasing oil and gas
    extraction, infracting on public lands, and proposing draconian
    cuts to agencies like the EPA, the administration has put
    corporate interests above the health and safety of our
    communities.
        One of the largest cuts to the EPA budget is to the Oil
    Spill Prevention, Preparedness, and Response program. How can
    we expect to maintain proper oversight and guard against future
    oil spills like my district has seen time and time again when
    this program is facing significant cuts?
        Mr. Ross. Well, again, our job at the Agency is to spend
    the money that Congress appropriates, and I do know the spill
    prevention program is a robust program. In fact, I know, was
    just having conversations the other day about enforcement
    associated with spill prevention issues. So it is alive and
    well at the Agency, and it is a robust program and the teams
    are doing a nice job implementing it.
        Mr. Carbajal. But with all the cuts that have occurred, do
    you still have the same span of control and oversight?
        Mr. Ross. With all the cuts. So, actually, my program has
    been plussed up. So, in the last several years, the Office of
    Water has gotten more funding and more responsibility. We had
    dropped 32 new programs on the Office of Water. So, in my
    personal experience, we have gone up in budget, not down.
        Mr. Carbajal. Also, in the spill and preparedness program?
        Mr. Ross. I can't speak to the budgets on the spill and
    preparedness program. A lot of that is run out of a different
    office.
        Mr. Carbajal. Because that is the one I was referring to.
        With the cutbacks by the EPA, does this mean that
    compliance with environmental safety rules are less of a
    priority in this administration?
        Mr. Ross. No, they are not. Susan Bodine does a fabulous
    job with the enforcement team. I am thrilled as, from a water
    perspective, she is focused on cutting significant
    noncompliance and NPDES permitting as one of her core
    objectives. And another major priority for the Agency is to
    actually cut back the amount of small and medium communities
    that are in noncompliance with the Safe Drinking Water Act.
        So the enforcement program, from my perspective, is focused
    on the really core areas I care about in the Office of Water.
        Mr. Carbajal. In California, there was a proposal to allow
    for fracking on over 1 million acres of public land by the
    Department of the Interior. At the same time, EPA is
    considering comments on promoting greater reuse of fracking
    wastewater without clearly responding about the potential risks
    this poses to our environment and public health.
        Does the EPA support requiring full disclosure of any
    chemical additives to fracking wastewater before that
    wastewater can be proposed for reuse as a source of irrigation,
    water on food, or potable reuse?
        Mr. Ross. So, in the Water Reuse Action Plan that we just
    proposed for public comment last week, produce water is a very
    significant resource of water. And we have a very long section
    there to describe, called Fit For Purpose. So, as we study, you
    know, produce water as a potential viable new water source, we
    are also taking a look at whether or not it is Fit For Purpose.
    So what is it intended to be used for? Whether or not it is
    irrigation, surface water augmentation, groundwater recharge,
    manufacturing, light manufacturing use, the aspect of the reuse
    has to be associated with Fit For Purpose. So that is a very
    significant component of our water use action strategy.
        Mr. Carbajal. How are you going to address the exemption
    that exists for fracking operations in the Safe Drinking Water
    Act that does not require disclosure of chemical additives?
        Mr. Ross. That I actually haven't--that is not in my
    program, at least I think. I will have to doublecheck, but so I
    don't have an answer for you, but I can answer the question for
    the record.
        Mr. Carbajal. Thank you very much.
        Madam Chair, I yield back.
        Mrs. Napolitano. Thank you, Mr. Carbajal.
        Mr. Woodall, you have the floor.
        Mr. Woodall. Thank you, Madam Chair.
        Thank you, Mr. Ross, for being here.
        I appreciate the shots that you have taken on budgeting,
    and I appreciate your response that you spend the money that
    Congress appropriates to you. Yes, the administration produced
    a budget. I didn't like everything that was in that budget
    either, but that is a step higher than what this House did when
    we produced no budget at all this year. There is no vision of
    what we are going to do this year, next year, the year after
    that, no long-term vision of any kind. We have one
    responsibility on the Budget Committee on which I sit, and we
    could not fulfill it. So, knowing you were going to take shots,
    the administration still put forward a budget, and I am
    grateful to you for doing that.
        You know, we, last month, had a court decision in the
    Southern District of Georgia, a case that Georgia led dealing
    the overreach of the WOTUS rule. And in that decision, the
    court said this along the lines of what you said this morning:
    Congress has delegated the important role of protecting the
    Nation's waters to the agencies, but in fulfilling that role,
    the agencies must comply with the law. All you can do is deal
    with the law that is in front of you, and they have failed to
    do just that.
        And the court went on to say that they were going to block
    any rule from going into effect as the agencies continue their
    efforts to change the WOTUS rule in light of the serious
    defects identified in the order.
        We need that clarity. I will put Georgia's environmental
    stewardship second to none. I am sorry to hear of other States
    that don't value their State's leadership. I do value our
    State's leadership, and I understand that you are trying to
    provide clarity in these revisions of the WOTUS rule. I
    actually value certainty even more. Clearly, the Obama
    administration was trying to provide certainty in 2015. And,
    clearly, they failed, as that litigation continues.
        Can you talk a little bit about, as we go on to step 2,
    what my expectations and the constituents' expectations should
    be around certainty?
        Mr. Ross. Well, yeah, that is one of our core principles as
    we are taking a look at the new proposed definition. Rather
    than just trying to fix around the margins, we started over. So
    we tried to get to very simple, a simple number of categories
    of what is in and then a very clear definition of what is out.
    And the number one exception is, if it is not in, it is out.
        So simplicity, clarity, certainty are some of the hallmarks
    of what we are going after. There are some questions about, you
    know, how we use the typical year construct for determining
    jurisdiction over adjacent wetlands. You got a lot of good
    public comments on that that we are taking into account. We are
    working with our legal and scientific and policy teams to take
    a look at that. So we have got a little bit of work to do
    before we finalize it.
        But certainty, clarity is our hallmark in this space.
    Perfection is a lofty goal, but our, you know, improving and
    answering this once and for all so that we have certainty so
    that the courts stop changing the goalpost and we actually have
    a Federal rule that we can implement, that we know--as Justice
    Kennedy said in a concurring opinion in 2016, you know, that he
    was concerned about the ominous reach of the Clean Water Act.
    We should not have Supreme Court Justices saying that in
    concurring opinions.
        Mr. Woodall. I appreciate your pointing that out. I am
    perfectly prepared to disagree with the administration about
    line item after line item after line item, but I am also
    prepared to disagree with the courts along those lines.
        Our job is to write those laws. Your job is to implement
    those laws. And the Court's role has been overblown in recent
    years, and I blame the Congress for many of those failures.
        Madam Chair, could I ask unanimous consent that we put in
    the record the court case that I have referenced out of the
    Southern District of Georgia? It is State of Georgia v.
    Wheeler.
        Mrs. Napolitano. So ordered.
        [The information follows:]

      State of Georgia, et al. v. Andrew R. Wheeler, et al., No. 2:15-cv-
         00079 (S.D. Ga.), Submitted for the Record by Hon. Rob Woodall
        [The 84-page order granting summary judgment is retained in
    committee files.]

            In the United States District Court
            for the Southern District of Georgia
            Brunswick Division

                                   __________

                               No. 2:15-cv-00079

                      State of Georgia, et al., Plaintiffs

                                       v.

     Andrew R. Wheeler, in his official capacity as Acting Administrator,
            U.S. Environmental Protection Agency, et al., Defendants
                                   __________

        Mr. Woodall. Thank you, Madam Chair.
        I regret that you are not going to be here after the second
    panel testifies because I suspect we are going to hear some
    concerns that you have very rapid responses to and the timing
    won't be there, but I would tell you that, as I see your
    narrowing the scope of the enforcement responsibilities to
    comply within the four corners of the law, I expect you to be
    able to do a better job with equal resources or more resources
    as you narrow that focus on which the Agency is targeting. And
    I would call that targeting an effort to serve my constituency
    even better and hold the Nation to a higher standard on clean
    water generally.
        Is that, as you have seen it from the inside looking out,
    is that a fair characterization? I reject the notion that
    anybody is dismantling anything. It seems to me, from the
    outside looking in, that you are trying to target, focus, and
    do better at what we all have tasked you with doing.
        Mr. Ross. That is our theory, that, you know, we focus on
    the waters that matter. The way the construct of the Clean
    Water Act, it is actually a well-written statute generally,
    other than maybe one definition that could have used some
    additional clarity, but the overall construct for the Nation's
    waters versus the navigable waters, the Federal Government
    protects the core navigable waters and the States have
    sufficient and are provided resources by Congress to help do
    other waters in the watershed. And it is a partnership between
    the States and Federal Government. We recognize that.
        Mr. Woodall. I thank you for your service to the country. I
    thank you for being here today.
        I yield back, Madam Chair.
        Mrs. Napolitano. Thank you, Mr. Woodall.
        Mr. Ross, I want to make sure we heard you correctly. Did
    you say you don't have the responsibility for the Safe Drinking
    Water Act? Can you provide--to Mr. Carbajal, for the record,
    and to this committee--how you propose appropriate use of
    fracking wastewater when the Drinking Water Act prohibits the
    disclosure of fracking chemicals?
        Mr. Ross. Yeah, of course. Thank you for the opportunity to
    clarify, Chairwoman.
        Of course, I have jurisdiction over the Safe Drinking Water
    Act. In fact, that is where I spend most of my time, you know,
    particularly with lead and copper and emerging contaminants in
    this country.
        The point I was trying to get at is, you know, regulating
    the identification of chemicals in frack water, I just, I will
    be honest with you, I don't know which program office has
    jurisdiction. It might be mine. So that was what I was trying
    to get at.
        But, more importantly, in fracking and produced water, my
    job, I serve as a cochair of the Drought Resilience Federal
    Partnership. And I learned we have drought in this country in
    areas like New Mexico and Oklahoma and the Permian Basin and
    Texas.
        Mrs. Napolitano. And California.
        Mr. Ross. And so that also happens to be where we have a
    lot of produced water. So it is our responsibility, our
    obligation, rather than locking that resource into a ground,
    into the ground and deep water injection and never using it, is
    to take a look at water use for the drought-starved portions of
    the country. That is really my focus.
        Mrs. Napolitano. How can you do that without knowing what
    the chemical components are?
        Mr. Ross. That is why I was mentioning the Fit For Purpose
    reuse. There is a Fit For Purpose technology-based assessment
    that will go into, as we look at reusing produced water; for
    example, augmentation versus surface water flows for aquatic
    life.
        Mrs. Napolitano. We are talking about fracking water.
        Mr. Ross. But that water, when it comes up, before it gets
    reused for whatever purpose you are talking about reusing it
    for, we will take a look at the end use. Is it irrigation? You
    will take a look at what are the chemical constituents in it.
    So that is what we mean by Fit For Purpose. You will take a
    look at what is in it before you use it.
        Mrs. Napolitano. Well, hopefully, we will be able to get a
    very clear definition because I understand that the industry
    will not allow to disclose what components they have, what
    chemicals they have in that water.
        Mr. Delgado, you have the floor.
        Mr. Delgado. Thank you, Chairwoman.
        Thank you, Mr. Ross, for being here. You just testified
    that you spend most of your time dealing with the Safe Drinking
    Water Act, and you also referenced emerging contaminants. I
    want to focus the questioning in this arena.
        You testified earlier that PFOS, PFOAs are a risk to human
    health, correct?
        Mr. Ross. Correct.
        Mr. Delgado. And these risks would include things like
    autoimmune disorders, cancer, kidney disease, thyroid
    conditions, correct?
        Mr. Ross. Yeah, so for the chemicals that we have the
    toxicological profiles on, yes, those are some of the health
    concerns that we have identified.
        Mr. Delgado. You would agree those are very serious
    conditions?
        Mr. Ross. Yeah, to the people who are exposed, yes.
        Mr. Delgado. And you would agree we should take some pretty
    important critical steps to get in front of those conditions?
        Mr. Ross. That is why we have developed the national action
    plan to get out in front and answer the scientific questions
    where we don't know the answers and to begin the process to
    grapple with the chemicals that we do know about.
        Mr. Delgado. And on that plan, do you intend to issue a
    maximum contaminant level?
        Mr. Ross. The process that I have to follow is the safe
    drinking water process established by Congress in 1996, and it
    is a multiple-step process. The first step in that process is
    to issue a regulatory determination. We have committed to doing
    that by the end of the year, and the teams are on pace to do
    that.
        Mr. Delgado. I don't know if I heard an answer to my
    question. My question was, when you issue the plan, do you
    intend to detail an MCL?
        Mr. Ross. If I say right now we intend to do an MCL, then I
    have determined the outcome of the rulemaking. And I will be
    challenged in not having an open mind. So I am following the
    safe drinking water process that Congress established for me.
    The first step in that process is that we do the regulatory
    determination.
        Mr. Delgado. Do you think that there can be a scenario
    where you complete that plan and that plan is viable and has
    merit in the absence of an MCL?
        Mr. Ross. In the absence--I guess I----
        Mr. Delgado. You are suggesting that you can go through
    this whole process and ultimately not land on an MCL.
        Mr. Ross. That is the process that Congress established for
    us. What I am saying is we go through the process. We rely----
        Mr. Delgado. I am sorry. When you say the process that
    Congress has established is you can go through this exercise
    and ultimately conclude we are not in a position to state what
    the maximum contaminant level is?
        Mr. Ross. So the Agency has done multiple regulatory
    determinations for a variety of chemicals over the years. When
    they move forward with the determination as a positive
    regulatory determination--meaning that there is an occurrence
    at a level that we can see, there are health effects at levels
    we are concerned about, and there is something that the Federal
    Government can do about it to regulate the three primary core
    considerations we do in the Safe Drinking Water Act--then you
    move into the next step of the process, which is to go out to
    our advisory boards for public comment, find out whether or not
    we have made that first determination correctly, and if you
    make the determination at the back end of that that, yes, we
    have the ability to answer all those questions and move forward
    with an MCL, we do.
        Mr. Delgado. So let me stop you there.
        So that is a very elongated process you just laid out,
    correct?
        Mr. Ross. Yes.
        Mr. Delgado. You have acknowledged earlier that there are
    some serious risks, health effects, right?
        Mr. Ross. Yes.
        Mr. Delgado. We know this to be the case. The science says
    that as much, correct?
        Mr. Ross. Yes.
        Mr. Delgado. So what I am trying to get my mind wrapped
    around is, how is it from your vantage point that what you have
    just detailed actually reflects the mission of the EPA, which
    is to protect human health?
        Mr. Ross. Because that is the statute that Congress gave
    me. I have to follow the law.
        Mr. Delgado. What I am trying to understand is: Let's say
    you follow law, as you very well should, and you are telling me
    that the law is telling you there can be a scenario whereby you
    do all of this research, you go through all these advisory
    boards, you do all of this effort, meanwhile parents are losing
    their lives, as some of my constituents have had to endure,
    mothers are giving birth to newborns with increased levels of
    exposure to these contaminants. You are telling me that we will
    sit and we will wait and we will wait.
        Meanwhile, States--States like New York--are issuing
    maximum contaminant levels for certain PFOA chemicals. So you
    are seeing all these other actors move in one direction to get
    out in front of this problem, and you want folks all across
    this country to continue to wait and wait and wait on the off
    chance potentially that maybe we will get to a point where we
    just might have enough information to issue an MCL.
        Is that what you are telling me?
        Mr. Ross. No.
        Mr. Delgado. What are you telling me?
        Mr. Ross. There are other parameters that--like groundwater
    cleanup standards. So where we see that we have exposure,
    particularly in the airfields, you can deal with the
    groundwater cleanup and put treatment techniques in on the
    water supply. And so we are working with the States and the
    local governments and our Federal partners to do that.
        We are also moving forward with----
        Mr. Delgado. I want to focus on the MCL. The MCL, we have
    to be able to set a maximum contaminant level for public water.
    You spend most of your time in the safe drinking water area.
    This is what you do. You articulated this now. So what I am
    trying to understand is, where is the focus on getting to a
    point where we can assure the public we know the maximum
    contaminant level of something that we know causes cancer,
    thyroid diseases, autoimmune disorders? We know this. The
    science says so. Act like it. Why aren't we acting like it?
        Mr. Ross. We are acting like it. We committed to do----
        Mr. Delgado. You are not. You are telling me you got 18
    different steps to go through before you can do anything.
        Mr. Ross. That is the process that you, Congress, gave me
    to follow.
        Mr. Delgado. But you are not even saying, sir, you are not
    even saying: OK. Be patient. We will give it to you.
        You can't even say that. What you are saying is: Wait. Give
    us some time. But I can't guarantee you we are giving you
    anything.
        Mr. Ross. As a Federal regulator, if I tell you the outcome
    of my regulatory process----
        Mr. Delgado. I am not asking for the limit. I am not asking
    for you to define for me what the limit is. I am asking you to
    commit to the fact that you will do everything in your power to
    land on an MCL that the public can rely upon.
        Mr. Ross. That is exactly what we have committed to do. We
    have committed to begin the process----
        Mr. Delgado. Then just say so. Then just say we will commit
    to providing an MCL.
        Mr. Ross. You are asking me to presume----
        Mr. Delgado. Yes or no, will you commit to the public that
    you will rely on the science for as long as it takes? Let's
    just take it off the table. At some point, at some point, you
    will provide an MCL.
        Mr. Ross. I will rely on the scientists. I rely on the
    scientists every single day, and they are the ones----
        Mr. Delgado. I am done. Thank you.
        Mr. Ross [continuing]. This process.
        Mrs. Napolitano. Thank you, Mr. Delgado
        Mr. Babin, you have the floor.
        Dr. Babin. If you would like to continue explaining about
    the science, I would like to hear what you have to say, Mr.
    Administrator.
        Mr. Ross. Yes. So thank you for that question.
        So the process of establishing the MCL requires us to take
    a look at all available science. We take a look at the
    occurrence data. What we have for PFOA and PFOS suggests that,
    in about 2 percent of our drinking water systems, the State of
    Michigan has gone through and analyzed all of their water
    systems. Several other States are starting to develop MCLs
    because they have the authority under State law.
        The way the system is designed by Congress is we have a
    process that we go through, and if the States have the
    authority to move quicker and have concerns for the local
    citizen, they have the ability to do that, and the States are
    doing that. That is the way the system is designed.
        But what I have done is always taken into account, in fact,
    on the MCL and on taking a look at the toxicological profiles,
    we have amazing scientists in the Office of Science and
    Technology and the Office of Research and Development. They are
    the ones telling us what the occurrence data is, what the
    health effects are, what we need to do from a toxicological
    profile, and they are leading the charge. Our job is to give
    them the resources to do their jobs, and that is exactly what
    we are doing.
        Dr. Babin. OK. Thank you very much.
        I have the privilege of representing southeast Texas, which
    is an area that serves as a major gateway for the U.S. trade
    and is home to some of the country's most significant
    infrastructure, including one of the busiest ports in the
    country, and that is the Port of Houston. It is an essential
    piece of our Nation's thriving economy and really the hub of
    our energy industry. Oil and gas sectors continue to be leading
    the world, in addition to continuing to improve our air quality
    over the years.
        As you know, the EPA's recently proposed rule to section
    401 of the CWA has the opportunity to play a significant role
    in expediting the review process for infrastructure projects,
    while simultaneously maintaining and promoting strong
    environmental practices. This new proposal will provide greater
    clarity and regulatory certainty for our country's water
    quality certification process.
        Some on the left are saying that this administration is
    guilty of a double standard when it comes to States' rights,
    particularly as it relates to section 401, the State
    certifications under the Clean Water Act.
        Is the EPA trying to limit States' rights when it comes to
    protecting water quality under the 401 certification process?
        Mr. Ross. No, definitely not. I have worked for a couple of
    States. I believe fundamentally in State rights. Our overall
    portfolio is to protect and respect State rights. In this
    particular circumstance, the 401 provision is older than I am.
    It is actually older than the Clean Water Act the way EPA's
    regulations have been adopted. It is time to modernize it.
    Right now, the courts are beginning to answer questions for us
    that the Agency should be providing in modern, up-to-date
    regulations. We are working through the process right now, but,
    no, we are not restricting State rights.
        Dr. Babin. OK. And isn't it true that some States have
    interpreted the language in section 401 as allowing them to use
    that certification authority to impose requirements that go
    beyond water quality-related requirements, thereby essentially
    turning the 401 process into another broad environmental review
    process like under NEPA?
        Mr. Ross. I do believe that the 401 process is a water
    quality certification. That is what the statute says. So we
    should be looking at the water quality impacts of the
    discharges associated with the Federal permits that the States
    then get to weigh in and determine whether or not the Federal
    permit also satisfies their water quality standards within
    their State.
        So it is a water quality provision. That is what we have
    said in our proposal, and we will look forward to hearing the
    comments from our stakeholders.
        Dr. Babin. Well, and under that, aren't such States that go
    beyond water quality-related requirements under the 401 process
    essentially and effectively using the section 401 certification
    process as a weapon of such to delay infrastructure and other
    projects at the expense of significant regional and national
    benefits, including increased energy security, energy
    reliability, economic development, and job creation?
        Mr. Ross. Well, we are aware of delays in certain
    infrastructure and energy-related developments, particularly
    because Congress basically said the States have a year, up to 1
    year to do the certification. The way the system has been
    developed is someone submits an application. If they don't get
    it done in a year, they send it back, resubmit, send it back,
    resubmit. And it could take 4 or 5 years to go through this
    process that Congress clearly said there is a year to do.
        So one of the things that we are trying to fix is provide
    clarity and certainty around the 1-year provision.
        Dr. Babin. Thank you.
        Madam Chair, I will yield back.
        Mrs. Napolitano. Thank you, Mr. Babin.
        Mr. Malinowski, you have the floor.
        Mr. Malinowski. Thank you, Madam Chairman.
        Mr. Ross, we have obviously made a lot of progress as a
    country since the days of burning rivers, but in its most
    recent report to Congress, EPA reported that more than 50
    percent of the rivers and streams it assessed are impaired;
    nearly 80 percent of bays and estuaries; 91 percent of ocean
    and New York coastal waters; and 100 percent of Great Lakes
    open waters.
        Would you agree that it is important to get those numbers
    down?
        Mr. Ross. Absolutely. The Clean Water Act has been very,
    very successful, but there is certainly a lot more work the
    States and the Federal Government need to do.
        Mr. Malinowski. Can you name a single major initiative that
    this administration has taken on the regulatory front that has,
    as it is expected, significantly reduced those numbers?
        Mr. Ross. Well, yeah, since 2017, we have approved 5,000
    total maximum daily loads. We have approved about 240 water
    quality standards, including reducing the backlog that the
    Agency failed to act on that the States submit, so, therefore,
    improving water quality through those States. We have decreased
    the backlog and have approved several hundred NPDES permits
    that the Federal Government regulates. I have developed a new
    water quality training policy. We have developed aluminum
    criteria. We have developed some aluminum criteria in
    California. And I could go on and on. So we have taken several
    major initiatives.
        Mr. Malinowski. Well, I am seeing over 80 environmental
    rules weakened or in the process of being weakened. Waters of
    the U.S. we have talked about, rules regulating toxic
    discharge, including mercury, from powerplants. We have talked
    about the blending proposal, which may allow untreated sewage
    into our rivers and streams. We have talked about section 401.
    How are any of these steps intended to or likely to have the
    effect of significantly altering the numbers that I just read?
    I am motivated by that kind of thing.
        Mr. Ross. What is not being reported is the amazing work of
    the Office of Water and the Agency and the regional offices
    every single day. What gets reported is a few of the big-ticket
    issues. Ninety-five percent of the Agency continues to go on
    and performs its mission. There are a few big-ticket issues we
    are grappling with like the definition of WOTUS that I am
    trying to restore the rule of law associated with.
        So I would love to spend some time educating you about the
    portfolio of the Office of Water because----
        Mr. Malinowski. I am trying to get a motivation here, you
    know, sir. You said a couple of times, in fact, at one point in
    this hearing that you have two clear principles that guide your
    work. One of them, something to do with not moving goalposts.
    The second was investment certainty. And I agree with both of
    those goals.
        But I was really struck. You are with the EPA. You are in
    charge of clean water. Why wasn't the first principle
    protecting the health and safety of the American people? You
    have had several opportunities to come to us and to demonstrate
    that the first thing you think about when you wake up in the
    morning is protecting our kids and yet what you keep coming
    back to is investor certainty, rule of law.
        Do you work for the Commerce Department, sir?
        Mr. Ross. Of course, I don't.
        Mr. Malinowski. Do you work for the Justice Department?
        Mr. Ross. In my opening statement, I actually focused on
    big-ticket, water infrastructure, water reuse, you know,
    working for the water sector, and concerns about our workforce.
    So, every single day, I care about and work for--I got into
    this--we went into this business because you care about the
    environment. That was one answer to one question. And, of
    course, I have multiple core principles.
        Mr. Malinowski. It was several answers to the question.
        You keep on coming back to the rule of law. So let me ask
    you about that. In the President's Executive order on defining
    the scope of clean water protections, he directed the EPA and
    the Corps to develop a rule that relies on a plurality opinion
    by Justice Scalia in a case about 13 years ago--I think it was
    Rapanos v. the U.S.--as the sole basis of asserting these
    protections.
        Do you recall how many Justices on the Court supported that
    plurality opinion?
        Mr. Ross. One, the Executive order said we should be
    informed by but we are not bound by. So the other thing is, on
    that opinion, there were three Justices that joined Justice
    Scalia. So that is four. Justice Kennedy actually concurred.
    What people forget about is that Justice Kennedy joined Scalia
    to overturn the overreach of the Federal action in that case.
        Mr. Malinowski. Well, five Justices opposed the Scalia
    opinion. And we are talking about the rule of law here based on
    a plurality opinion that no court in the 13 years since has
    said should be binding on anyone or anything. So I don't think
    that your constant references to the rule of law are
    particularly convincing.
        The role of the EPA, I have some sense of what your role
    is. You are not the agency in the U.S. Government that is
    supposed to be fundamentally concerned with investor
    protection. There are other agencies that have that very
    legitimate purpose. Your job is to be sitting in there,
    arguing, often as the lonely voice in the Federal Government,
    for people. And I have not heard a lot of that ethos expressed
    here today.
        Thank you. I yield back.
        Mrs. Napolitano. Thank you, Mr. Malinowski.
        Next, we have Miss Gonzalez-Colon. You have the floor.
        Miss Gonzalez-Colon. Thank you, Madam Chair.
        Mr. Ross, would you like to have additional time to respond
    to the previous question?
        Mr. Ross. Yeah, you know, the allegation that we are not
    concerned about the environment is just fundamentally false. It
    is a nice talking point.
        If you are talking about investment certainty, one of the
    most important things that Congress and the EPA has done over
    the years is to work with our infrastructure, upgrade our
    drinking water systems and our wastewater systems. Those are
    multiple, hundreds of millions or tens of millions of dollars
    of investment. If facilities and cities and States go through
    asset management planning, and they have 10-, 15-, 20-, 40-year
    parameters and they are thinking about how to use their
    taxpayer money before raising rates for the individual
    taxpayer, you have to have rules of the game that they
    understand so they can do their asset management planning, so
    they can figure out whether or not to spend money on drinking
    water, stormwater, wastewater, whatever it is. So, if you keep
    changing the rules of the game, how are cities and States
    supposed to plan their affairs accordingly?
        And so we think about environmental protection every single
    day, and so I understand this role is to take some of those
    comments, but I am very, very, very thrilled and pleased with
    the work of the Office of Water. The career employees are
    fantastic. I work for them every day, and I see their passion
    every day.
        Miss Gonzalez-Colon. I am going to piggyback on that. One
    of these complaints we receive about the program is the
    regulatory patchwork based solely upon the geographic part you
    are. With the revision again back to 2015, regulations that are
    currently in more than half of the States, how long will it
    take for States and Territories to actually adopt the same
    standards?
        Mr. Ross. I am sorry. There was some noise over here. I
    couldn't hear the last part of that question.
        Miss Gonzalez-Colon. Yeah, I mean, with the revision back
    to pre-2015 standards, regulations that are currently in half
    of the States, how long will it take for States and Territories
    to actually get the regulatory standards, everybody on the same
    page?
        Mr. Ross. Well, so that is the, I guess, the curse of
    litigation. So there is a 60-day implementation period. We
    finished step 1. It will take 60 days before it becomes
    effective, which theoretically that would restore the common
    operating platform across all 50 States.
        You know, if it is litigated, it is possible that
    litigation will shut it down in some or portions of the
    country. And so this story, I believe, will probably continue.
    We are doing our best. We are controlling what we can. And our
    litigators, it is a defensible rule. That is why we spent so
    much time doing it. I know there was concern about we were not
    moving fast enough, but we moved as quickly as we could so that
    we could make it defensible, so when that went through the
    litigation, it will defend it.
        So the story is not done, but we have done what we can to
    restore certainty while we develop our second step 2 rule,
    which we will finish this winter.
        Miss Gonzalez-Colon. I really appreciate you highlighting
    the importance of the role of the Clean Water and Drinking
    Water State Revolving Fund in order to reduce water pollution
    and public health threats because, in the case of Puerto Rico,
    after 2016, we are not able to pay our loans, and, finally, in
    August of this year, we actually got through the restoration of
    the $571 million in principal with that revolving fund, and
    that will help us out in some of the cleanups that you just
    mandate.
        As a matter of fact, you asked for sewer repairs in Puerto
    Rico--Manati, San German. And we are very glad that, for the
    first time in many years, the regional director, Mr. Pete Lopez
    from New York, has been helping Puerto Rico out. So thank you
    for that.
        I yield back.
        Mr. Ross. Pete Lopez is passionate about Puerto Rico, and I
    can tell you restoring the SRF, our office director, Andrew
    Sawyer, has invested huge investment of his time and resources
    to get that back up and running. When we made that
    announcement, that was a really great day.
        Miss Gonzalez-Colon. I will just add to this. Every time we
    call him--and we do have several situations in Puerto Rico
    after the hurricane--and I need to say the EPA has been there
    every time we have been asking for and helping the State to
    manage many of those incidents regarding, not just water, but
    97 percent of the drinking water in Puerto Rico is provided by
    Puerto Rico Water Authority, which is State-owned basically. So
    thank you for that assistance and my congrats to Mr. Pete
    Lopez.
        I yield back.
        Mr. Rouda [presiding]. Thank you. The Chair now recognizes
    Representative Pappas.
        Mr. Pappas. Thank you very much, Mr. Chair.
        And, Mr. Ross, thanks for being with us today.
        I want to build off some of the comments of my colleague,
    Mr. Delgado, because the folks of New Hampshire's First
    Congressional District are experiencing PFAS contamination at
    the same levels of the residents of his district. This is
    beyond an emerging contaminant in my State. It has emerged. It
    is impacting the health of individuals, and we need to demand
    more from the EPA.
        I am frustrated as well that we don't have the same level
    of urgency in our Federal Government that we do from State
    officeholders in New Hampshire. Our State recently set new
    aggressive levels for PFAS in drinking water. Other States have
    done that as well. We need a Federal solution on this because
    States don't necessarily have the expertise at their
    fingerprints, the capacity to be able to do this.
        We need a standard across the country that is going to
    protect public health and drinking water, and I understand that
    there is a process, but we want you to share the urgency that
    people who have been exposed to PFAS contamination have.
        Mr. Ross. You have my commitment. We share the urgency. I
    know, for the people who are exposed and the communities, that
    is unsatisfying for me to say that, but I can tell you based on
    the career team, the scientists, and the regulators that we
    have working on it, they have an urgency. They are working on
    it holistically, not just from the drinking water program, but
    in our Office of Land and Emergency Management and our TSCA
    program. It is an agencywide initiative. It is a core principle
    of Administrator Wheeler to push forward on PFOS, and we are
    doing everything we can as quickly as we can. We understand
    there is frustration that sometimes the Federal bureaucracy
    is--you know, part of the Safe Drinking Water Act, for example,
    was established to make sure that we engage with our
    stakeholders, engage with our scientists and our advisory
    boards. But I understand that, if we go through that process,
    the outside world and some of the people who are affected may
    believe that it is not going fast enough, and I acknowledge
    that.
        Mr. Pappas. We are counting on you to get something done. I
    was recently at Pease Air Force Base in Portsmouth. The Air
    Force has financed a treatment system for groundwater there.
    They have levels that are hundreds of thousands of parts per
    trillion, far exceeding the 70 parts per trillion prevailing
    health advisory by the EPA and far exceeding the new standards
    that New Hampshire released. They told me it is going to take,
    if not decades, centuries perhaps to treat all the groundwater
    in that area so that it is safe to drink. So we are talking
    about a problem, when you look across the country, just on
    military bases, that is quite significant.
        I am wondering if we could shift to industrial pollution
    sites. I don't know if you are aware of how many active
    industrial polluters there are, facilities that are discharging
    PFAS into lakes and rivers.
        Mr. Ross. Well, I don't have the data in front of me, but
    my team actually, we are putting together an Effluent
    Limitations Guidelines Plan. We do that every couple of years.
    That is out. We have got four or five pages dedicated to this,
    and we are beginning to take a look at the various forms of
    dischargers and based on the sectors of the economy in which
    they operate, and so the Agency, as part of our PFAS action
    plan, we are looking at that.
        Mr. Pappas. So experts estimate there are about 500,000
    active industrial facilities that are discharging PFAS into
    lakes and rivers and bodies of water in this country. That is a
    serious concern. And I am wondering if you could just confirm
    that you believe that there should be limits on PFAS discharge
    from such sites.
        Mr. Ross. Well, so we have a couple of facilities, for
    example, in West Virginia and North Carolina, that are subject
    to discharge limits. They are the manufacturers.
        We are taking a look at what other sectors would we have
    the authority to regulate and do we have the ability to
    regulate, and that is part of our Effluent Limitations
    Guidelines Plan. So we are taking a look at it. That plan will
    be coming out fairly soon, but in the action plan, it is one of
    the things that we took a look at over the next couple of
    years. Obviously, to regulate it all the time, you have to have
    the science. You have to have the data. And so we are going to
    focus in on the higher priority areas.
        Mr. Pappas. Fairly soon. Can you narrow that down for us?
        Mr. Ross. Actually, I don't have the details in my--at my
    fingertips. I can get back to you on that, but I know I have
    signed off on the last, on the Effluent Limitations Guidelines
    Plan. It is going through the publication process. Quite
    frankly, where in that process, I just don't have the answer,
    but I can get it for you.
        Mr. Pappas. Well, the way we can really protect public
    health from the threat PFAS poses is to first stop the
    contamination, stop the situation from getting worse, ensure
    that there is treatment of groundwater, that people have access
    to safe drinking water, and then work at making sure that we
    get these chemicals off the market. They are called forever
    chemicals for a reason. They stick around in the environment
    for a long, long time. And they have been linked to serious
    chronic health conditions, from cancer to thyroid issues.
        We have got to make sure we are doing more on this. This is
    going to be found all across the country when we test for it,
    and we need our EPA to be on the front lines of this with up-
    to-date science, working hard with that sense of urgency to
    protect the public.
        Mr. Ross. Yeah, you have made the argument for why this
    is--why we developed a holistic action plan, and the core
    component and our primary focus--well, I shouldn't say our
    primary. That is the wrong word. One of our main focuses is on
    closing the scientific gap. So there is a huge amount of work
    happening in the Office of Research and Development and with
    our Federal partners on how to close the scientific information
    gap. You know, and we are also working on trying to figure out
    ways to identify more chemicals in basically environmental
    media, and so all of that is happening as part of our action
    plan. And if we are just laser focused on one issue, we would
    ignore the holistic picture.
        Mr. Pappas. Thank you.
        I yield back.
        Mr. Rouda. Thank you, Mr. Pappas.
        The Chair now recognizes Representative Gibbs for 5 minutes
    of questioning.
        Mr. Gibbs. Thank you, Chair.
        Thank you, Mr. Ross, for being here today. And thank you
    for all the work you do to protect our environment. When I was
    chair of this committee for 6 years, this subcommittee, I
    always said during the WOTUS discussion that the Clean Water
    Act was passed in 1972 to be a partnership between the Federal
    Government and State governments, and the State governments are
    responsible for the implementation and enforcement of the Clean
    Water Act under the guidance of the Federal Government.
        Is that a true statement?
        Mr. Ross. Yeah, as part of the providing authority for the
    States that run the program, they have to be able to enforce
    the law.
        Mr. Gibbs. And they do send reports frequently or timely or
    are required to?
        Mr. Ross. Yeah, we report on our performance. In fact, I
    used to run a--the environmental protection unit was
    responsible for enforcement in the State. So I actually have
    firsthand knowledge on that.
        Mr. Gibbs. One my concerns has always been, during the
    Obama administration, on their waters of the United States
    proposal, implementation, that they tried to do was that one
    size fits all--you know, you could expand this map, include all
    the things under Federal jurisdiction. I always made the
    argument that, you know, we could actually go backwards and the
    progress we made in point source and nonpoint source pollution,
    and the reason I say we go backwards is because, at some point,
    you know, businesses, farmers, they all want to--most people,
    everybody wants to do the right thing. OK? But when you layer
    on so much redtape and bureaucracy, at some point, they are
    going to just throw their hands up in the air and only going to
    do what they need to do to get by and may not go the extra
    mile.
        Do you think that is a true statement, too, that that is a
    possibility?
        Mr. Ross. Well, I know there is frustration in the
    regulated community. My experience is that, at base, people
    will do the right thing to protect the environment, but I do
    sense the frustration if the goalposts keep moving. And so it
    is----
        Mr. Gibbs. Well, you know, as a former hog farmer, you
    know, it was illegal for me to go out and dump hog manure in
    the ditch or whatever, even though it was in the Federal
    waterway. And so there has been lots of editorials recently,
    because I just saw the move by the Trump administration on this
    issue, that the editorials actually come out and say that this
    opens up the door for businesses to pollute because the Feds
    aren't regulating this. And, as you and I both know, that is
    not true. If it is illegal for me to do that, the States are
    doing that.
        And my point is, when the Feds open this up to a one size
    fits all out of Washington, DC, what the issue comes about is
    it creates more confusion, more redtape, and the States
    wouldn't do as much as they might have done because they think
    the Feds are going to do it, and we actually go backwards. And
    I have held that opinion, and I think it is absolutely true.
        So I am glad to see the Trump administration is moving
    forward with common sense to really implement what the Clean
    Water Act's purpose really was, and Justice Scalia's in the
    Rapanos decision kind of stated that Federal jurisdiction
    should be waters, that waters can't be there intermittently,
    meaning that exempts road ditches from the Federal aspect but
    not the State aspect, and there has to be some type of
    features. I think he meant streambanks, if I interpret that
    correctly.
        So I just want to make the point here that all waters are
    being regulated, and small streams, road ditches, and all that
    kind of stuff, it is better regulated at the local level, the
    State level because they have a better hands-on than a one-
    size-fits-all Washington, DC. In your position now, would you
    concur that is kind of the way it should work? I mean, it works
    better that way.
        Mr. Ross. That is the way Congress set it up. That is the
    structure of the Clean Water Act, is to focus on the core
    waters under Federal jurisdiction and to provide resources to
    the States and allow the States to regulate that which they
    think is more local.
        Mr. Gibbs. I do want to mention quickly the President
    signed the integrated planning legislation here in January that
    I sponsored. Can you give us a quick update what is happening
    with that? Is the EPA reaching out to communities that are
    under enforcement actions to make them aware of opportunities
    that are out there to try to get to where they want to get to?
    Where are we in integrated planning?
        Mr. Ross. Let me thank you for the legislation.
        This country really does need to focus on integrated
    planning. Whether that is stormwater, wastewater, drinking
    water, it all comes back to the same ratepayer, the same
    taxpayer. And so if you truly understand local asset management
    planning, integrated planning has to be part of the
    conversation. So we are robustly embracing integrated planning.
    It comes up quite a bit in the combined sewer overflow context,
    and we are working with the Department of Justice and our
    regulated community to provide additional flexibility to make
    sure that, for example, if someone, rather than investing $1
    billion in a pipe in a ground, they can do $600 million--I am
    just making this up--in green infrastructure and get stormwater
    management benefits and green space and the environmental
    benefits of the green infrastructure. We should embrace that,
    and I think we are.
        Mr. Gibbs. OK. That stormwater, our sanitary system, right?
        Mr. Ross. Well, in fact, that is one of the reasons I
    actually included stormwater in the Water Reuse Action Plan
    that we dropped last week. Is it reuse? It is an interesting
    question, but it is certainly a source of water that we should
    be looking at as a new form of water if we handle it and manage
    it and treat it correctly.
        Mr. Gibbs. I thank you. I am out of time.
        I yield back.
        Mr. Rouda. Thank you, Mr. Gibbs.
        The Chair now recognizes Congresswoman Fletcher for 5
    minutes of questioning.
        Mrs. Fletcher. Thank you, Mr. Chairman.
        And thank you, Mr. Ross, for being here today.
        I represent the Seventh Congressional District of Texas in
    Houston, and we are no strangers to pollution when it comes to
    our waterways. Just this year, we had a major incident when a
    chemical fire at the Intercontinental Terminals Company raged
    so uncontrollably that a containment dike failed, spilling
    countless chemicals into the Houston Ship Channel and, the
    evidence suggests, all the way into Galveston Bay.
        And this hasn't been the only chemical spill that we have
    seen recently. In 2014, as you know, a chemical storage
    facility in West Virginia released an estimated 10,000 gallons
    of coal-processing chemicals upstream of a drinking water
    intake pipe that left more than 300,000 residents without
    drinking water for more than a week.
        Despite these events and the general risk associated with
    them, the Trump administration EPA recommended no new
    requirements under the Clean Water Act to prevent the release
    of hazardous substances or to require public notification. And
    earlier this month, EPA reversed its 2016 decision to issue new
    rules to safeguard against the release of hazardous substances
    into local water bodies and drinking water sources.
        I would like to know why the determination that it wasn't
    necessary to look at the hazardous substances earlier this
    month, why that took place, and what data led your Agency to
    make that determination.
        Mr. Ross. Well, so that is actually a rulemaking that is
    out of our Office of Land and Emergency Management. So they ran
    the rulemaking. So I can't speak to the specific detail in the
    decisionmaking. I am aware that they did take a look at some of
    the former chemical spills and took a look at the scope of
    authority that the agencies have, for example, under my program
    and NPDES permitting or under the enforcement program to go
    after those spills.
        They took a look at nine common areas and decided that,
    based on the scope of our existing authorities, they have the
    ability to manage it, but, as far as specific decisionmaking,
    that is not my program, and I really should--I would have to
    defer to Peter Wright, who is the Assistant Administrator of
    that office.
        Mrs. Fletcher. Well, you would agree with me, would you
    not, that the public has the right to know when their water has
    been contaminated by chemicals or compromised by chemical
    release?
        Mr. Ross. Yeah. And we have the Community Right-to-Know,
    lots of notifications, the State has notification requirements.
    And so a lot of the notification is built into our existing
    systems.
        Mrs. Fletcher. So how many spills have there been since the
    Charleston incident that have been severe enough to contaminate
    local water sources?
        Mr. Ross. I don't have that data.
        Mrs. Fletcher. It is my understanding that there have been
    approximately 600 chemical spills in the last 3 years. Have you
    heard that number?
        Mr. Ross. No, that is not my program, so I haven't focused
    on that specific data.
        Mrs. Fletcher. OK. Do you agree with me that it is
    important, if there have been--let's just assume that that
    number is correct, there were 600 spills in the last 3 years--
    do you agree with me that additional measures to reduce or
    eliminate chemical spills would be an important thing to
    protect public drinking water?
        Mr. Ross. I would have to take a look at the causes of the
    spill, the response action, and things like that. So I can't
    speculate.
        Mrs. Fletcher. Do you know whether the existing EPA
    programs have caught or been able to identify those chemical
    spills through the programs that you previously described?
        Mr. Ross. Again, that would be for another office to answer
    those questions. And I am happy to take those back, those
    questions for the record.
        Mrs. Fletcher. Yeah. I think it would be helpful to get
    answers to those questions. Certainly, some of my colleagues
    have talked about concerns that residents have about PFAS
    chemicals, PFOA. That is certainly true in Texas. We are
    attuned to that as well. And I think that what we are concerned
    about is accountability and making sure that we have the
    information.
        As you know, the ITC chemical fire raised serious concerns
    about our air quality but also water quality, and that has a
    lasting impact. And so we have heightened awareness about the
    potential risk of chemicals in our water and request that you
    get that information back to us so that we can take the
    appropriate action to make sure that public drinking water is
    safe and that public health is prioritized.
        And with that, I will yield back.
        Mr. Rouda. Thank you, Representative Fletcher.
        The Chair now recognizes Representative Massie for 5
    minutes of questioning.
        Mr. Massie. Thank you, Chairman.
        The homebuilders in my district, the people who are
    providing services to the homes, like the sewer districts, they
    all understand that there has to be some regulation, and they
    don't want to pollute. But the two things that I hear from them
    and all of my constituents is that we need to improve clarity
    and reduce disparity, because they can deal with these. These
    are costs of doing business. They get passed on to the
    consumer, so we should strive to minimize them while taking
    care of the environment.
        But the problem is, if you don't have clarity--like you
    were talking about the maps, the lack of maps from prior
    administrations--they are shooting in the dark. And then if
    they get treated one way on one project and then they go to
    another project in a different State or a different district,
    they are treated another way. And these create uncertainty and
    hardships, not just for those providers, but for the customers.
        So, you know, the former EPA Administrator said that their
    rule was based on science. Yet when I looked at the rule, there
    were no units of measure, there were no numbers. Like, it was
    words like moderate flow, heavy flow, intermittent. These
    things need to be defined in order to improve the clarity and
    reduce the disparity.
        Some of my constituents--and I know some of these issues
    are Army Corps issues, and maybe that is one of the problems we
    have here. There are a couple of silos. But one of the
    recommendations that I have heard from my district, where there
    is a consent decree--they are under a consent decree that is
    going to cost the sewer district, which will be passed on to
    the ratepayers, hundreds of millions of dollars.
        One of the questions they asked is--and this is what the
    developers are asking too. All of this money that the
    developers are paying in to the mitigation banks, which,
    frankly, some of it goes to some dubious projects. If you go
    inspect these projects, it is not clear whether they have
    improved the environment or the condition of a stream or not.
    And some of it just goes into buying rural land and locking it
    up forever from development, which exacerbates rural poverty.
    When they are trying to save the environment by buying up land
    in rural counties, it creates hardships for those counties and
    it takes stuff off the tax rolls.
        So here is what they have recommended to me. And I said,
    you know, this idea will never catch on in DC, because it makes
    too much sense, common sense. Which this is what they want to
    do: Take the money that the developers are paying in mitigation
    fees, when they build homes for new home buyers, and use it for
    the consent decree, to actually use the money, the mitigation
    money, OK--ostensibly the developers are having an impact on
    the environment. Instead of spending that money on projects we
    are not quite sure--it is hard to prove they improve the
    environment, why don't we spend it on the neediest projects,
    which are these sewer overflows that are in the district.
        Like, what do you think of that idea? I know it is going to
    sound crazy to everybody here, because it makes sense
    everywhere else, but----
        Mr. Ross. Well, there is a lot to unpack there.
        So from a high level, my--and, in fact, in a former
    position in the State is, I believe that you should apply your
    resources where you get the best economic and environmental
    value and, more importantly, the environment public health
    protection value. And so that is one of the reasons why we are
    taking a look at updating and modernizing our mitigation
    policies.
        For example, in my Water Quality Trading Policy that we
    developed in February, one of the six core principles is
    encouraging multiuse banks. So not just for, you know, wetland
    mitigation or water quality trading, but also species
    conservation, so that we work with our Federal partners to take
    a look at landscape scale conservation and bring multiple
    sources of revenue to provide a higher level ecological lift
    for whatever bank that you are talking about.
        We are updating the--working with the Corps of Engineers--
    we have worked really hard to break down the silos between
    those Federal agencies and have a great working relationship
    with them.
        We are updating our compensatory mitigation rule, with the
    Corps taking the lead on that. We are working with the Corps on
    things like if you are taking out a check dam to try to repair
    a corridor and there is a little bit of fringe habitat around
    the pond behind the check dam, there was a disincentive to do
    the check dam removal and repair the stream, because if you had
    to compensate or offset the impact of the fringe wetland on the
    pond, it may make it economically unviable. And so we are
    working with the Corps to modernize those types of mitigation
    policies.
        So at a high level, I agree with you that we need to be
    more creative in how we use our mitigation and get the best
    bang for the buck.
        Mr. Massie. And one of the mitigations I would recommend
    that they be more flexible in granting, because it has fallen
    out of favor recently, is allowing the developer to mitigate on
    the property there locally. Like, what can you do to improve
    things there locally where people will see the benefit, instead
    of putting it into this black hole where you are not sure what
    the money is being spent on? It is actually more efficient that
    way, I think.
        Mr. Rouda. Time has expired, but the witness can answer the
    question.
        Mr. Ross. Yeah, that is an historic question. You know,
    back in the day, it was onsite--you know, onsite, and we found
    that if you didn't have the sophistication to operate and
    manage the wetland--for example, wetland mitigation going
    forward--you know, 10, 15 years later, you may have had a
    decline in the resource. And so there has to be some balance
    between the sophistication of the entity who manages the
    resource going forward. Sometimes it is a local landowner but
    sometimes not.
        Mr. Rouda. Thank you, Mr. Massie.
        The Chair now recognizes myself for 5 minutes of
    questioning.
        Mr. Ross, good to have you here, again, and to hear your
    testimony.
        I want to point out the fact that I think clean water is a
    bipartisan affair. We all want to make sure that our children
    and our family and our community has access to safe drinking
    water. And I also want Americans to fully understand the
    challenge of PFAS in our drinking water and our food chain.
        So just to help clarify, we know that PFOA and PFOS is not
    being used as it has been in the past. And we even heard
    testimony last week from 3M that they voluntarily stopped using
    it and selling it, a highly profitable product. And the reason
    they probably did that was because they recognized the
    environmental impact and the potential liability, liability
    that resulted in an $875 million settlement--not a judgment--
    settlement with the State of Minnesota.
        There are 5,000--roughly, 5,000 to 6,000 chemicals in the
    PFAS family. Is it your belief that all or most of these have
    health consequences?
        Mr. Ross. We simply don't know, which is why our scientists
    are working on developing toxicological profiles for the next
    batch of chemicals and, more importantly, looking at high
    throughput toxicology work that takes a look at the group of
    chemicals to figure out if we can sort of weight which ones may
    warrant quicker, faster study. So the short answer, we don't
    know.
        Mr. Rouda. But they are all in the same class. They are all
    in the same class. We have studies out there, even internal 3M
    studies, that show that accumulation of PFAS, whether it is
    PFOA or PFOS or the full range of even short-chain compounds,
    can cause negative consequences.
        Are you concerned that the American public is the guinea
    pig here as we determine the effect of these compounds on our
    health?
        Mr. Ross. Well, these chemicals have been in production
    since the 1940s and are part of our everyday life, including--
    --
        Mr. Rouda. Literally.
        Mr. Ross. Literally. Including, you know, putting out fires
    and saving lives on Navy ships and at airports, and then the
    medical community relies on these.
        And so the challenges, as I have learned from the
    toxicologists--you know, for example, on the tox work we are
    doing on Gen X and PFPS, you are seeing shorter chains and--but
    yet they still have adverse health effects, but they are
    different health effects than the PFOA and PFOS.
        And so we really--right now, the short answer is our
    scientists need time to really figure this out, and that is one
    of the primary goals of the Agency right now, is give our
    scientists the leeway to run and develop and close the
    information gap.
        Mr. Rouda. So when I look at the overall concerns, you have
    got a parts per trillion of 70 issued by the EPA. Clearly,
    there is some scientific evidence that the EPA decided to use
    that number as the benchmark, where above that is concerning
    for an individual's health. So even though you haven't done the
    toxicity studies on every single compound, you have drawn the
    conclusion that 70 is a benchmark for all compounds, correct?
        Mr. Ross. For PFOA and PFOS, those two compounds.
        Mr. Rouda. OK.
        Mr. Ross. And that was based on specific studies supporting
    both the PFOA, P-F-O-A, and P-F-O-S.
        But as far as the standards, you know, there are chemicals
    that we don't know the toxicological profile for, and so we
    don't know what the number would be if we would go through and
    establish a health advisory. And that is the information that
    we are trying to gather.
        Mr. Rouda. And again, I emphasize the concern is that we
    may be looking back 5, 10, 15 years from now and wondering why
    this body and the EPA did not take action on a class of
    chemicals that they knew were diminishing the health of
    Americans, and allowing it to be dumped in rivers and allowing
    it to be used on crops, to be introduced into our food chain,
    and us not taking action quick enough or deep enough to address
    this issue.
        Are you concerned about the EPA not moving fast enough in
    this regard?
        Mr. Ross. Well, I will tell you, actually it is one of the
    reasons, when I was talking to our drinking water program and
    learning from the scientists, early last year, I didn't want to
    be the person looking back 10 years from now and saying the EPA
    missed it. And it is one of the reasons why we established the
    leadership summit that we held, the listening sessions
    throughout the country, and the development of the action plan.
    It was designed specifically to make sure that we weren't
    looking back 10, 15 years from now and said we missed it. And
    so that was definitely in my forefront of my mind as we were
    thinking about developing the action plan.
        Mr. Rouda. And as that action plan comes forth and you get
    the studies done, if we learn that much of the drinking water,
    significant amounts of the drinking water being consumed by
    Americans in everyday life is above certain levels, when you
    look at the remediation that would have to take place--and
    right now, the best technology to do that is reverse osmosis,
    which is basically desalination--we are talking major expenses
    for every single water district that is affected with high
    volumes of PFAS chemicals, how do you envision us being able to
    address that?
        And my point really being, the sooner we address the
    dissemination of those chemicals into the environment, the less
    likelihood we are going to spend a hell of a lot of money on
    cleanup through improved water.
        Mr. Ross. Well, it is one of the things--you know, we are
    actually taking a look at the technology, the treatments,
    because carbon absorption actually takes care of some of the
    compounds and does that actually gather additional longer chain
    compounds versus shorter chain compounds. Yes, reverse osmosis
    is out there. We would actually have to take a look at does
    reverse osmosis cover everything.
        And so, yeah, it is a very, very expensive treatment on the
    back end, which is one of the reasons why we are really focused
    on, you know, in the short term, where you have exposure,
    particularly in groundwater near airfields, trying to get the
    treatment up----
        Mr. Rouda. I am going to get one last question in here,
    because I am a little confused by some of the questions about
    States' rights when it comes to addressing this issue. And on
    the other hand, we have a President who is constantly trying to
    take away California's rights in addressing environmental
    issues.
        Is it your testimony or your belief that States should be
    the primary holders of how we manage the PFAS class of
    chemicals or is that a--do you expect to have an EPA level set
    for each of these?
        Mr. Ross. I think we need all of the above, local, State,
    and Federal Government. We all have a role to play. That is the
    system that we have. And so while EPA uses its authority to
    address PFAS, the States are using their authorities, and local
    communities are as well. So we need an all-of-the-above
    strategy. That is my position.
        Mr. Rouda. OK. Thank you very much.
        And I yield back.
        The Chair now recognizes Mr. Garret for 5 minutes of
    questions--excuse me, Mr. Graves, for 5 minutes of questioning.
        Mr. Graves of Louisiana. We are so close, we are on a
    first-name basis.
        Mr. Rouda. That is right.
        Mr. Graves of Louisiana. Thank you.
        Administrator Ross, thank you for being here. Appreciate
    it.
        I represent south Louisiana. We have gone through the
    longest period of Mississippi River at flood stage ever, ever
    recorded. My point is, is that we drain from Montana to New
    York to Canada, one of the largest watersheds in the world. And
    the hydrology of south Louisiana is very different than
    virtually anywhere else.
        Do you believe that under the standard established during
    the Obama administration that there was appropriate clarity for
    areas like Louisiana where I could read it, and having
    previously worked in a role where I dealt with regulations--in
    reading it myself, I believe that I could have applied that to
    virtually anywhere in south Louisiana, anywhere.
        Do you believe that the clarity or the specificity in the
    Obama-era definition was appropriate or do you think that it
    needed more clarification and definition, especially for areas
    like south Louisiana?
        Mr. Ross. Well, I once had an opportunity to cohost an
    hypoxia task force along the banks of Baton Rouge and learned
    firsthand about the water challenges down there, and it was
    extremely informative.
        You know, that--one of my concerns on the last
    administration's proposal is that you really didn't get the
    certainty, particularly as you got away from major water bodies
    and particularly because it relied on the significant nexus
    test.
        If you take a look at our proposed step 2 rulemaking, what
    we have done is what Justice Kennedy articulated in his
    concurring opinion, which is, absent more specific regulation,
    he recommended a significant nexus test.
        We use a significant nexus concept in the science and the
    policy to drive our proposal, but then our goal is to eliminate
    that case-by-case specific analysis using factors that are
    really hard to grapple with and getting more to certainty and
    clarity.
        So the answer is yes, I think we can do better, providing
    better certainty, particularly as you get away from the major
    waters.
        Mr. Graves of Louisiana. Administrator, I have had dozens
    and dozens of meetings with just regular constituents--not
    companies--just regular constituents coming to us and
    expressing concern or fear over the potential jurisdiction over
    their property whenever they wanted to do something with it,
    putting a chill effect on folks doing things like building
    homes, establishing a small business, and other implications.
        A lot of the headlines that I have read over the past few
    months or past few weeks, I guess, have indicated that this is
    a rollback. Could you talk a little bit about data and
    justification for just the jurisdictional basis of this?
        Mr. Ross. Well, so the rollback for the 2015 rule, it is
    about restoring the rule of law. The 2015 rule has been found
    by several courts to have legal defect and has been actually
    sent back by a court in Georgia and a court in Texas to the
    Agency to fix it.
        So, there was an expansion under the Obama rule. And by
    restoring the 1986/1988 framework, there is less Federal
    jurisdictional waters. The question and the problem that we
    have is we don't have the datasets to be able to do a
    comparative analysis. There has been a failure of the Federal
    Government for decades. It is one that we are really focused
    on. I reject the premise that we can't map it.
        The people at USGS, the people in ORD, the people over in
    NOAA, they are fantastic. You just have to give them the right
    information so they can add a GIS data layer to the NHD
    hydrography dataset and also the NWI. So we have the ability to
    do it, but we don't have the data. And to do this comparative
    analysis, we need to----
        Mr. Graves of Louisiana. I would certainly love to work
    with you, and don't see any reason why that would be a partisan
    effort to get accuracy and clarity.
        Now, shifting gears very quickly, I want to flip over to
    section 401. I have met with numerous folks across the country,
    Washington State, California, New York, and other areas, where
    401 appears to have become weaponized, meaning that States are
    using it in a manner, number one, inconsistent with what I
    believe to be the 1-year timeframe to make a decision.
        Is that your belief and understanding as well?
        Mr. Ross. Yeah. The Congress is very clear that it said 1
    year. One year means one year.
        Mr. Graves of Louisiana. OK. So, secondly, this is part of
    the--it is 401 of the Clean Water Act. Watching some of these
    entirely irrelevant topics that States are using, or
    justification that they are using, to refuse to offer the
    consistency determination is fascinating to me. And, in fact,
    it has actually led to environmental damages. And I will give
    you an example.
        As a result of preventing gas pipelines up in the
    Northeast, they actually burned home heating oil and imported
    gas from Vladimir Putin. Russian gas is 13 percent dirtier
    emissions than U.S. gas. Home heating oil has extraordinary
    emissions compared to natural gas as well. So their efforts to
    protect the environment are actually damaging the environment.
        Now, Washington State using things that are entirely
    unrelated to clean water to stop certification, did you think
    this is inappropriate?
        Mr. Rouda. The time has expired, but the witness may answer
    the question.
        Mr. Ross. So water--if it is a water quality certification,
    water quality means water quality. And I am aware of
    circumstances where sometimes States lose the forest for the
    trees.
        Mr. Rouda. Thank you.
        The Chair now recognizes Representative Lynch for 5 minutes
    of questioning.
        Mr. Lynch. Thank you, Mr. Chairman.
        Thank you, Mr. Ross, for your willingness to testify and
    help the committee with its work.
        I represent Boston Harbor. I have done that for about--
    well, including the State senate, for quite a few years, maybe
    25 years. And we have spent billions, we have spent billions
    cleaning up Boston Harbor. And I am happy to say it has been a
    dramatic improvement. We see, you know, seals, porpoises, you
    know, things I never saw when I was growing up there, we see
    now since the cleanup of Boston Harbor, the Deer Island sewage
    treatment facility. So we have made great progress there.
        One of the ways that we have been able to do that is using
    section 401 of the Clean Water Act, which it basically states
    that a Federal agency may not issue a permit or a license to
    conduct any activity that may result in any discharge into
    navigable waters, Boston Harbor, unless one State or an
    authorized Tribe where the discharge originates issues a
    section 401 water quality certification verifying compliance
    with the Clean Water Act. So we have used that as a shield to
    protect Boston Harbor.
        On August 8, 2019, EPA signed a proposed rule to replace
    the existing water quality certification regulations under
    section 401. Part of that would be to limit the State's ability
    to protect its waterways.
        And is that your intention?
        Mr. Ross. No. Quite the contrary. We fully support the
    States doing water quality certifications. And if folks would
    read the proposal, they still have the ability to take a look
    at water quality impacts associated with federally issued
    permits. That is not----
        Mr. Lynch. Yeah, but--so what you are doing, though, is in
    this proposed rule, which I oppose, it limits the issues that
    we can cite in refusing a water quality permit. It also limits
    the time we have to get our evidence together to fight that.
        As a State, we have never relinquished our ability to
    protect our citizens or our natural resources. We have never
    done that. There has always been a shared responsibility
    between the States and the Feds. So I am just worrying if--I am
    wondering and worrying, you know, do you think constitutionally
    you can diminish the rights of the State to protect its
    citizens or its natural resources?
        Mr. Ross. My touchstone is complying with the rule of law,
    and I intend to do that. We are following the law in proposing
    a rule that says 1 year means 1 year, and we are not limiting
    the ability of States to take into account water quality.
        I have been to Boston Harbor. One of the first trips I took
    in this position was to go up and take a look at our Urban
    Waters Program. It is fantastic.
        The section 401 modernization effort that we are going
    through right now, the States will still have the ability to
    take in consideration of water quality impacts.
        Mr. Lynch. Not as much as they can now. Under your rule
    that will diminish this. It is pretty plain the impact of this.
        So I have a compressor station that they are trying to
    build adjacent to Boston Harbor, a pipeline, a gas pipeline
    that will definitely cause a negative impact on water quality
    just because of the nature of the discharge and the work they
    are doing.
        Under the existing rule, the State of New York has been
    able to push back under the Clean Water Act and deny licensing
    to a pipeline similar to the one that I have in my port.
        So I am just worried--I am very worried that your
    diminishment of State power under this rule will allow this
    discharge to go on under your rule, under your new proposed
    rule, that would not have happened when we had the right to
    protect Boston Harbor. Is that your understanding as well?
        Mr. Ross. If your concern is water quality in Boston
    Harbor, our rule will not impact the ability of the State to
    consider water quality impacts associated with that discharge.
        Mr. Lynch. Well, you keep saying that, but you are
    diminishing the shield that we have to protect our navigable
    waters.
        In another section here, you know, we have a current
    restriction on farmers who use pesticides and other fertilizers
    and nutrients near waterways that are currently prohibited, but
    you are expanding that ability. I mean, with all of the
    problems we have had down in Florida with the algae blooms and
    other impacts on tourist areas and beaches, you are allowing
    that now to happen in a bigger way and restricting States'
    ability to regulate that as well. You know, I find it stunning,
    the scope of repeal that you are pushing forward.
        Mr. Ross. Well, I respectfully disagree. So the scope of
    the repeal on the WOTUS rule was to restore the rule of law
    because the current--the 2015 rule has been sent back to the
    Agency as in violation of our statutory authority. And under
    the 401--I keep saying it, because it is true--States have the
    ability to analyze the impacts of water quality as part of the
    certification process.
        Mr. Lynch. I thank you for your indulgence, Mr. Chairman,
    and I yield back.
        Mr. Rouda. Thank you, Mr. Lynch.
        And the Chair now recognizes Mr. Graves who has asked to
    make a clarification on one of his previous questions.
        Mr. Graves of Louisiana. Thank you.
        Mr. Chairman, I believe that Mr. Westerman had deferred
    some time earlier, and I am claiming that to clarify.
        On section 401, I want to make sure I understand, the
    second panel, some of the written testimony indicates that the
    administration's clarification on 401 would actually hamper
    States' ability to exercise certification. I guess I struggle
    with that. Because is there anything in the administration's
    clarification that would prohibit States from making decisions
    based on water quality?
        Mr. Ross. No.
        Mr. Graves of Louisiana. So that testimony would be
    somewhat confusing or perhaps inaccurate?
        Mr. Ross. Well, I haven't read the testimony, so I won't
    weigh in on or provide an opinion.
        Mr. Graves of Louisiana. Thank you.
        One clarification. The chairman of the full committee put
    up a chart earlier on the economic analysis of the WOTUS rule
    and shared his thoughts of what that chart meant. There was a
    caveat at the bottom that indicated that that chart represented
    conditions with no State responses, meaning States would not
    change laws or do anything differently.
        Do you believe that to be the case or do you believe that
    some States would actually act differently in a more dynamic
    manner?
        Mr. Ross. Well, actually, that is one of the things that we
    have seen and we had our economists take a look at, that the
    whole States' race to the bottom theory has been disproved.
    States will rise. You know, there is--and so if you take a look
    at the economic analysis associated with the step 2 proposal
    and also what we have done in step 1, the States will rise. And
    we have seen it.
        You know, after the 2001 SWANCC decision, Wisconsin
    immediately came in and expanded jurisdiction over wetlands. We
    have seen it already in response to our proposal. The States
    have already said we are going to step in and act. So the race
    to the bottom theory from the 1970s and 1980s I think has been
    disproved.
        Mr. Graves of Louisiana. And, Mr. Chairman, just in
    closing, I just want to make note that this goes back to my
    first question, is that I believe the States can tailor the
    clean water solutions to their own States and own hydrology, as
    opposed to trying to come in and doing a one size fits all. And
    I think this is a more elegant solution.
        I yield back. Thank you.
        Mr. Rouda. Thank you.
        The Chair now recognizes Mr. Cohen for 5 minutes of
    questioning.
        Mr. Cohen. Thank you. And for the first time I can say
    thank you, Chairman Rouda.
        Mr. Rouda. Yes.
        Mr. Cohen. Good to follow Mr. Graves.
        And I want to thank the subcommittee for honoring my
    request to hold this hearing today. It is a most important
    subject. And I was at the Judiciary Committee with FISA and
    then with some eye doctors on the power of stem cells and
    recreating vision. So you are in good company, but I am late.
        It is very important we have the opportunity to examine the
    impact of coal plants and coal ash dumps on groundwater quality
    and to examine the effects of coal ash contamination on the
    quality of drinking water for communities across this country.
    The issue of coal ash is very personal to my district and
    myself. The residents of my State have seen it in two spots in
    particular.
        I have been working alongside my fellow congressman, former
    fellow Tennessee General Assembly colleague, Tim Burchett, a
    stalwart on this fight, to continue to shine some light on this
    important issue.
        In 2008, the largest coal ash spill in our Nation's history
    occurred in Tennessee when a dike failed at TVA's Kingston
    Fossil Plant, and 5.4 million cubic yards of coal ash cascaded
    into the Emory and Clinch Rivers and smothered about 300 acres
    of land. I met with TVA officials yesterday. They assured me
    they are working on the cleanup and looking into the conditions
    of the workers who claim they have been damaged with healthcare
    maladies. And they said this was a preventable accident. And
    hopefully, we won't see it ever again, and they promised me it
    won't happen again. TVA has good new leadership, and I am
    pleased about that.
        We are here in 2019, and hundreds of people are still
    dealing with the aftermath of that disaster, though. Meanwhile,
    the EPA seems to be intent on weakening Federal protections for
    coal ash. And that is disappointing. I would hope that the EPA
    would work with TVA to see what happened at Kingston and try to
    see that it doesn't happen again. And in Memphis, they have
    left a lot of coal ash at a plant, and it is going to be 20
    years to rid us of all of it. So that is another area of
    concern.
        Mr. Ross, on April 15, the EPA reversed its position for
    over 40 years and determined that the Clean Water Act does not
    apply to discharges of pollutions that flow through groundwater
    before reaching a river, lake, or stream. This action clearly
    goes against the plain language of the Clean Water Act and
    creates a glaring loophole which could have disastrous impacts
    on water quality.
        The Clean Water Act is vital in preventing even more
    environmental harm from the disposal of toxic coal ash left at
    coal powerplants across the Nation. And that is what we have
    got in Memphis is a coal plant out [inaudible].
        There are approximately 1,400 coal ash sites across the
    country where deadly toxic waste has been disposed of, posing
    threats to clean water and people's health. And Memphis has one
    of the finest clean water aquifers in the world, and our folks
    are concerned about us being contaminated.
        Ninety-two percent of coal ash ponds covered by this rule
    are currently contaminating groundwater at levels exceeding
    Federal health standards. The Allen Fossil Plant in my district
    is identified as one of the most contaminated sites in the
    country with levels of contamination hundreds times higher than
    what could be considered safe.
        So, Mr. Ross, my question, for decades, regulation under
    State laws and other Federal statutes, such as the Safe
    Drinking Water Act and Resource Conservation and Recovery Act,
    reportedly have been shown to be insufficient to protect
    communities from water pollution. How do you plan to protect
    these communities, such as Memphis and east Tennessee folks in
    Kingston, living near toxic coal ash sites that are leaching
    into groundwater and traveling to surface water?
        Mr. Ross. Well, there are multiple mechanisms in play
    there, whether or not it is a CCR rule or you have some of
    our--you know, whether or not State authority in--under State
    law. We have other programs at the Federal level.
        But I am going to address the--you know, one of the things
    that you said about the 40 years of EPA position on the
    discharges to groundwater. It hasn't been 40 years. We put out
    a notice early last year trying to decide what is the actual
    scope of authority under the Clean Water Act for discharges to
    groundwater. And we got thousands and thousands of comments
    back. And what we learned is that the EPA originally had a
    position that we don't regulate discharges of groundwater,
    because that is exactly what Congress intended.
        The EPA Administrator actually asked Congress, up through
    the debates in the 1972 amendments, to ask for authority to
    regulate groundwater. There were amendments that were proposed
    to go after and expand the 402 program to extend to discharges
    of groundwater, and Congress specifically rejected that. And so
    in the world of statutory interpretation, that is fairly
    significant guidance to us.
        And so our position is, you know, we could have--we started
    with what our legal authority is when we wrote that
    interpretive statement. We didn't follow the Ninth Circuit or
    the Fourth Circuit. We didn't follow the Sixth Circuit. We
    figured out what our legal authority really was before deciding
    what our outcome is.
        Mr. Cohen. And when you figured that out, was that less
    than the circuits had given you authority to do or more?
        Mr. Ross. So right now, in the Fourth and the Ninth, where
    those courts have taken the position that--and, Chair, if I may
    answer the question, I am happy to.
        So rather than--even though I don't necessarily agree
    legally with the rationale of those courts, we are not
    upsetting the decisions in the Ninth Circuit and the Fourth
    Circuit, because we know the Supreme Court has accepted cert
    and is taking this interesting and difficult question up.
        And so before EPA goes through a rulemaking, for example,
    we are going to--if we are--have the benefit of Supreme Court
    guidance, we are certainly going to take that into account. And
    so we recognize the decisions in the Fourth and the Ninth
    Circuit, just like we recognize the decisions in the Sixth
    Circuit.
        Mr. Cohen. I appreciate that, but that wasn't the question
    I asked. My question was, when you came up with your opinion or
    your thoughts on what your jurisdiction was, your legal
    authority, was that more or less than the Fourth, Ninth, and
    Sixth Circuits allowed you?
        Mr. Rouda. Time has expired, but I'll allow the witness to
    answer the question.
        Mr. Ross. It is less. As we explained in our interpretive
    statement, we have a different position than the Ninth and the
    Fourth Circuit, and we don't believe we have the legal
    authority to apply the 402 program to direct discharges of
    groundwater.
        Mr. Cohen. Mr. Chairman, if I could ask for another minute
    or two since I asked for this hearing and just to get it----
        Mr. Rouda. So granted.
        Mr. Cohen. Thank you, sir.
        Firstly, I wish you would go more expansive. It is the
    people's health that is at stake. It is the water, water
    internal, water external, water eternal. That is what we are
    about. Water creates us. Water makes us live. Water cleans up
    our lives, allows us to survive. If we have--blessed with clean
    water, we need to keep it. We don't need to find ways to get
    around enforcing laws that protect water. Water is the most
    essential element on earth. I mean, it is there. Oxygen, OK.
    Water, right together, H20, A.
        B, we know that coal ash contains toxic chemicals such as
    mercury, cadmium, and arsenic. The EPA's steam electric power
    ELG rule was designed to control these and other toxic
    discharges, expected to eliminate 1.4 billion pounds of toxic
    discharges or 90 percent of all heavy metals entering the
    waterways. But the EPA projected $451 to $566 million per year
    in benefits associated with the rule and a minimal impact on
    electricity generating capacity prices.
        Why, despite these numbers, EPA has blocked implementation
    and is considering revising and weakening these standards?
        Mr. Ross. So the steam electric rule we are reanalyzing,
    and we took two-way streams out of the five or so that were
    done under the steam electric rule update. We are reanalyzing
    the information and the data, and we currently have a proposal
    over at OMB. And so I am not--at this stage, I will wait for
    that proposal to hit the streets, and you will have your
    explanation.
        Mr. Cohen. Thank you, Mr. Chairman.
        And to close, this was something--I don't know if you are
    Republican or not. We are all Americans. It doesn't make any
    difference if you are Republican. But there are Republicans
    around because of this administration. And this is one of the
    good things Richard Nixon did. So please uphold this for the
    people's health and for a little bit that we can think of
    Richard Nixon in a positive way.
        I yield back the balance of my time.
        Mrs. Napolitano [presiding]. Thank you, Mr. Cohen.
        Mr. Ross, we thank you for your time and for your patience.
    And you are excused for the rest of the panel. We are calling
    the second panel up.
        Thank you very much, sir.
        Mr. Ross. Thank you, Chairwoman. Thank you for inviting me
    and providing me the opportunity.
        Mrs. Napolitano. You are welcome, sir.
        We will now proceed to hear from our second panel.
        Thank you for being here. And all of you are welcome. If
    you will take your seats.
        We have Ms. Maia Bellon, director of the Department of
    Ecology, State of Washington; Ms. Becky Keogh, secretary,
    Department of Energy and Environment, State of Arkansas; Mr.
    Ken Kopocis, associate professor, College of Law, American
    University.
        And I do think Mr. Delgado would want to introduce Mr.
    Hickey, who is next, from Hoosick Falls, New York.
        Mr. Delgado, would you like to do so?
        Mr. Delgado. Thank you, Madam Chairwoman.
        It is a great honor for me to introduce Mr. Michael Hickey,
    a good friend of mine at this point--and not just a
    constituent, but a real friend--from Hoosick Falls, as you
    know, New York, Rensselaer County.
        We all owe him a debt of gratitude for following a
    discovery he made after the death of his father in 2013. When
    Michael's father passed away from cancer, he began to look into
    a connection between cancer and the chemicals used in the local
    manufacturing facility where his father worked. This would
    eventually lead to the discovery that there was a higher
    incidence of illnesses related to PFAS chemicals and extremely
    unsafe levels of these chemicals in the Village of Hoosick
    Falls, as well as the Village of Petersburgh's drinking water.
    But Michael's advocacy did not stop there. He turned the memory
    of his father into a force for good and nonstop public
    advocacy.
        Since 2013, Michael has been leading the charge to increase
    transparency and accountability for PFAS chemicals at the
    local, State, and Federal level. And his work led to New York
    State designating the village as a Superfund site and the EPA
    declaring one of the manufacturing facilities in Hoosick Falls
    as a Superfund site.
        Michael's groundbreaking advocacy has contributed immensely
    to our understanding of PFAS contamination in New York, and it
    is largely due to him that the community has received funding
    for blood testing, remediation, and is no longer drinking the
    water that was poisoning them.
        Michael is a true hero in what he has done to spur action
    on this issue, and I have been proud to work with him to call
    for Federal regulation on these chemicals, including my
    bipartisan PFAS Right-to-Know Act that would add PFAS chemicals
    to the toxic release inventory. And he joined me at my townhall
    in his hometown of Hoosick Falls that focused on water
    contamination and our work to hold those contaminating the
    water accountable.
        Additionally, I was honored to have him join me for the
    State of the Union. Our message then is our message today: The
    PFAS crisis is urgent, prevalent, and not going away. The
    administration must step up its efforts to protect the health
    and safety of communities in upstate New York and across the
    country.
        I look forward to hearing Michael's testimony today. And I
    appreciate the work of this committee to continue to shed light
    on the prevalence of the toxic PFAS chemical in our
    communities. I also look forward to continuing my work with
    Michael, the Hoosick Falls and Petersburgh communities, and
    members of the committee to address the needs of all upstate
    residents who deserve drinking water that is free of cancer-
    causing chemicals.
        And just lastly, I don't often get emotional, Chairwoman,
    but my exchange with Mr. Ross and his lack of desire to commit
    to an MCL, and the fact that I was bothered to the degree that
    I was, in many respects has to do with how connected I feel to
    Mr. Hickey and the community in Hoosick Falls. This is real
    lives, real people, not just numbers.
        Thank you.
        Mrs. Napolitano. Well, thank you, Mr. Delgado. I appreciate
    it very much.
        We also have Ms. Pam Nixon, president, People Concerned
    About Chemical Safety; Mr. Geoffrey Gisler, senior attorney,
    Southern Environmental Law Center.
        And I would like to reintroduce Ms. Becky Keogh for Mr.
    Westerman to introduce.
        Mr. Westerman. Thank you, Madam Chair.
        And it is an honor today to get to introduce Becky Keogh.
    She is the secretary of the Department of Energy and the
    Environment in the State of Arkansas. That is a recent position
    as the State has reorganized State government. It is a cabinet-
    level position. She formerly served as director of the Arkansas
    Department of Environmental Quality.
        She has had a long career in public service and private
    service. She has worked for an international environmental and
    engineering firm. She has worked previously in the ADEQ in the
    State of Arkansas. And she has also been an active member of
    the Environmental Council of the States since 1997. And when
    she became the director of ADEQ in Arkansas, she was
    immediately elected to one of four officer positions in ECOS.
        Maybe the thing I like most about Secretary Keogh is that
    she is a fellow University of Arkansas Razorback alum, College
    of Engineering. She is a chemical engineer. So she understands
    these issues very well.
        And I want to welcome her to the panel today and look
    forward to her testimony.
        Thank you.
        Mrs. Napolitano. Thank you, Mr. Westerman.
        And we will proceed with the panel.
        Ms. Maia Bellon, you have the floor.

      TESTIMONY OF MAIA BELLON, DIRECTOR, DEPARTMENT OF ECOLOGY,
     STATE OF WASHINGTON; BECKY W. KEOGH, SECRETARY, DEPARTMENT OF
        ENERGY AND ENVIRONMENT, STATE OF ARKANSAS; KEN KOPOCIS,
       ASSOCIATE PROFESSOR, WASHINGTON COLLEGE OF LAW, AMERICAN
     UNIVERSITY; MICHAEL HICKEY, HOOSICK FALLS, NY; PAMELA NIXON,
    PRESIDENT, PEOPLE CONCERNED ABOUT CHEMICAL SAFETY; AND GEOFFREY
     R. GISLER, SENIOR ATTORNEY, SOUTHERN ENVIRONMENTAL LAW CENTER

        Ms. Bellon. Thank you, Chair Napolitano, Ranking Member
    Westerman, and distinguished members of the subcommittee. My
    name is Maia Bellon. I am the director of the Washington State
    Department of Ecology, and I am honored and privileged to be
    here today.
        Since Congress passed the Clean Water Act over 50 years
    ago, it has enjoyed ongoing bipartisan support. It has served
    as the essential framework across the Nation for keeping our
    waters clean and our communities safe, until now. I am here to
    speak about deeply troubling circumstances that should alarm
    Democrats and Republicans alike, and that is EPA's attempt,
    under this administration, to dismantle the Clean Water Act.
        I am gravely concerned that these actions will harm
    families and communities across the country by putting at risk
    clean water for drinking, for fishing and swimming, by
    threatening the economy of our water-based industries, and by
    ignoring Federal obligations to Tribal nations across the
    country, including Washington State's 29 federally recognized
    Tribes.
        I take seriously my role to provide clean water to 7
    million Washingtonians. I must say that I am relieved to see
    this subcommittee stand up and take notice of EPA's rollbacks.
        Under the Clean Water Act, Congress empowered States to
    serve as co-regulators with the Federal Government. This
    includes longstanding State authority under section 401 to
    ensure that federally permitted projects don't harm our waters.
    But EPA has now proposed a rule that would, one, dramatically
    narrow the scope of projects States can review; two, severely
    restrict the time we have to review applications; and, three,
    grant themselves ultimate veto authority over our State
    decisions.
        I cannot stress enough how damaging EPA's proposal will be
    to States. And this is particularly concerning for Washington,
    because we are a water State. We are the home to the Puget
    Sound, one of the Nation's largest estuaries. We have hundreds
    of lakes and thousands of river miles, including the Columbia
    River.
        And as a basis for these drastic measures, EPA's proposal
    actually points to my agency's denial of a water quality
    certification for the Millennium coal export terminal along the
    Columbia River. The fact is that denial was based on the
    Millennium project's failure to meet a multitude of specific
    water quality standards as well as other State environmental
    standards.
        But let's face it, this rule is not about the facts. It is
    about taking away State's ability to protect clean water. And
    at the same time the Trump administration is dismantling
    section 401, they are also shrinking the pool of water bodies
    protected under the waters of the United States rule. They have
    created chaos by repealing the 2015 WOTUS rule, leaving vast
    portions of our Nation's waters unprotected, contrary to
    Supreme Court rulings. And in one Washington county alone, the
    WOTUS repeal will result in the loss of Federal protection for
    over 50 percent of its streams and its wetlands.
        And on top of these sweeping rollbacks, EPA is directly
    targeting Washington State. They just repealed our State's
    human health water quality standards. These standards apply
    only to our State and deal with how we protect the health of
    Washingtonians that consume fish, such as salmon and trout,
    from our marine and our freshwaters.
        This combination of rollbacks on both the national and
    State level is unprecedented. There is no doubt this
    administration is dead set on overturning protections that have
    safeguarded our Nation's waters for decades. And I am here to
    say that Americans deserve better. Our children deserve better.
    We all deserve clean water.
        But I am not giving up hope, and that is because of this
    committee hearing today. And I want you to know that Washington
    State fully supports Congress' much needed oversight of EPA and
    recognizing the dangerous path that this administration is on
    to ensure that the Clean Water Act is upheld and to ensure that
    water is protected for all Americans.
        Thank you for the time.
        [Ms. Bellon's prepared statement follows:]

      Prepared Statement of Maia Bellon, Director, Department of Ecology,
                              State of Washington
        Thank you Chair Napolitano, Ranking Member Westerman, and members
    of the Committee.
        My name is Maia Bellon. I am the Director of the Washington State
    Department of Ecology, and I have been proud to serve in this role for
    the last 7 years. It is an honor to be here today.
        Unfortunately, I am here to speak about a deeply troubling set of
    circumstances that should alarm Democrats and Republicans alike--the
    harmful actions being taken by the Environmental Protection Agency
    (EPA) under President Trump, which amount to nothing less than an
    attempt at fundamentally restructuring the Clean Water Act.
        This is something only Congress has the authority to do.
        I am gravely concerned by the ways this Administration's reckless
    changes will impact families and communities in Washington state and
    across the country who currently enjoy clean water for drinking,
    swimming, and fishing--not to mention the economic injury it threatens
    to our water-based industries, including recreation and tourism. Their
    actions also ignore federal obligations to Washington's 29 federally
    recognized Native American tribes, as well as tribal nations across the
    country.
        On behalf of the more than 7.5 million people I serve every day, I
    am here to implore you as Members of Congress to continue conducting
    this much-needed oversight, and to reassert your authority over an
    Administration that is ignoring the rule of law and imperiling the
    health of our waters. Americans are depending on you.
     The Clean Water Act Enjoys Nearly a Half-Century of Bipartisan Support
        Almost 50 years ago, the people of Washington state recognized the
    importance of protecting our abundant natural resources by establishing
    my state agency, the Department of Ecology--the first government agency
    in the country focused on environmental protection, predating even the
    EPA.
        Two years later, a bipartisan Congress took similar action,
    updating and strengthening federal laws on water pollution in America
    and formally enacting what is now known as the Clean Water Act. Under
    the new law, Washington became the first state in the nation to receive
    federal Clean Water Act delegation. As the first state that received
    delegation from the federal government, Washington has a long and proud
    history of effectively implementing federal law to protect our numerous
    water bodies, including the Puget Sound--the nation's largest estuary--
    the Columbia River, hundreds of lakes, and thousands of miles of rivers
    and streams.
        In the nearly half-century since its enactment, the Clean Water Act
    has enjoyed ongoing bipartisan support in Congress and has served as an
    essential framework for every U.S. state and territory to keep our
    waters clean and our communities safe--regardless of each state's
    political party, and regardless of how much or how little water we
    have.
        I am here today as the director of a state environmental regulatory
    agency to confirm that we have been proud and faithful stewards of the
    responsibilities bestowed upon us by Congress.
        Unfortunately, I am also here to report that the Trump
    Administration is breaking with decades of precedent set by Republican
    and Democratic administrations that came before it, by knowingly and
    willfully refusing to execute the law as Congress intended.
       EPA's Assault on the Clean Water Act Violates States' Rights and
                              Congressional Intent
        This EPA has launched a series of attacks on multiple fronts to
    undermine state authority, ignore congressional intent, and undercut
    the guarantee of clean water for all Americans.
        What we are witnessing is a deregulatory campaign aimed at
    systematically dismantling the Clean Water Act as we know it.
        Today I want to highlight two such attacks that affect all states
    and territories, as well as a targeted attack on clean water in
    Washington state specifically. These systematic attacks illustrate the
    unprecedented level of overreach and disregard this EPA has for states'
    rights and our delegated role under the Clean Water Act, granted to us
    by Congress.
        The first of these attacks is the Trump Administration's attempt to
    rewrite the rules established by Congress for states and tribes under
    Section 401 of the Clean Water Act.
        Congress enacted Section 401 to give states the direct authority to
    grant, condition, or deny water quality certifications for federally
    permitted activities within our state borders. In doing so, Congress
    empowered states to be co-regulators with the federal government, and
    charged us with ensuring federally permitted activities are not
    inconsistent with, or in violation of, water quality requirements.
        In April, President Trump signed an executive order directing EPA
    to completely rewrite the playbook for states under Section 401. The
    White House is not shy about the purpose of this directive--they admit
    plainly it is intended to help private industry get more energy
    projects approved without ``interference'' from states like Washington.
        Last month, EPA followed through by formally proposing changes to
    the implementation of Section 401. If finalized, their proposed rule
    would:

          dramatically narrow the scope of federally permitted
    projects that states have the authority to certify within our borders;
          severely restrict the amount of time states have to
    certify or condition a federally permitted project; and
          grant themselves ultimate veto authority over state
    decisions.

        I cannot overstate how damaging EPA's proposed rule will be to
    states.
        EPA's attempt to set an artificial timeline shorter than the one-
    year set by Congress could result in Ecology being forced to issue more
    denials or have its authority deemed waived. In short, it would make
    protecting water quality more difficult and result in more delays for
    projects.
        EPA's rule represents a massive overreach by the administration
    that improperly constrains state authority, ignores both the spirit and
    the letter of the law, and reveals this Administration's contempt for
    the right of every state to protect our waters and our communities.
        This is particularly concerning for Washington state where we are
    deeply reliant on clean water for drinking, recreation, commerce, and
    to fulfill tribal treaty obligations.
        EPA's proposed rule cites my agency's denial of a water quality
    certification for the Millennium coal export terminal on the Columbia
    River as a basis for these drastic measures. For two years we have been
    falsely accused of ``abusing our 401 authority'' and denying the
    project based on our so-called philosophical opposition to coal. This
    is frankly nonsense.
        The fact is that our decision was based on the project's failure to
    meet water quality standards, and its further failure to meet our
    state's environmental standards. The project proponent failed to
    provide any mitigation for the areas the project would devastate,
    especially along the Columbia River. The environmental analysis
    demonstrated that this project would have destroyed 24 acres of
    wetlands and 26 acres of forested habitat, as well as dredged 41 acres
    of river bed. It would have contaminated stormwater from stockpiling
    1.5 million tons of material onsite near the river--picture, if you
    will, an 85-foot-high pile of coal running the length of the National
    Mall, from the steps of the Capitol to the foot of the Lincoln
    Memorial.
        In short, there were many insolvable problems with the Millennium
    project--I have named only a few. I am confident in the work my agency
    has done to protect Washington from the Millennium project's
    irreparable harm. It was correctly and properly denied under our
    Section 401 authority, which is further demonstrated by the multiple
    court rulings that have upheld our decision.
        The health of the Columbia River, and all of Washington's waters,
    is vital to our state's agriculture and manufacturing economies,
    central to our energy production, and relied upon by Washington's 29
    federally recognized Native American tribes. It is also critical to
    maintaining the healthy environment that Washingtonians treasure.
        Yet, this administration is set on crafting a false narrative about
    Washington state and making an example out of us to ensure that we, and
    states across the country, lose our ability to protect our waters.
        The fact is that states have been conducting this process for
    nearly half a century without issue. That is why no other
    administration has threatened to erode state authority, put clean water
    at risk, and hand over the keys to polluters in such a radical way.
        This EPA chose to forge ahead on issuing this rule despite
    bipartisan outcry from governors, and despite failing to engage in
    meaningful consultation. On January 31, 2019, the Western Governors
    Association sent a letter to President Trump stating, ``We urge you to
    direct federal agencies to reject any changes to agency rules,
    guidance, or policy that may diminish, impair, or subordinate states'
    well-established sovereign and statutory authorities to protect water
    quality within their boundaries.''
        Unfortunately, this plea from governors was ignored, and EPA's rule
    recklessly erodes state authority. It not only contravenes the law and
    the will of the states, but fails to acknowledge the vast differences
    and needs among states. It is unacceptable and dangerous, and states
    will not stop fighting to block it.
        Another example of the Trump Administration's systematic assault on
    the Clean Water Act is the rule change underway to repeal and replace
    the definition for which bodies of water qualify as a Water of the
    United States and therefore protection under federal law.
        In 2015, EPA completed a long-overdue rulemaking process that
    finally established a clear and scientifically defensible definition of
    Waters of the United States that must be protected under the Clean
    Water Act. The 2015 rule cleared up ambiguities from 1980s-era
    regulations that made it more difficult for states like Washington to
    control pollution in our waters. It was a welcome and necessary step
    after years of litigation that resulted in two seemingly different
    Supreme Court decisions, leaving the definition unclear and much more
    difficult to enforce.
        But now, President Trump's EPA has once again thrown the law into
    chaos by taking the harmful step of repealing the 2015 rule and
    proposing to replace it with a rule that will leave vast portions of
    our nation's waters unprotected and that conflicts with Supreme Court
    rulings. In one of Washington's counties alone, it will result in loss
    of Clean Water Act protection for over 50 percent of streams and
    wetlands. This ill-advised rule results in the exact opposite of
    regulatory certainty.
        Trump's EPA has left Washington and many other states struggling
    for ways to protect waters that we have historically regulated and
    protected. The Administration's decision to disregard the concept of
    ``significant nexus'' for determining which waters are Waters of the
    United States flies in the face of science and common sense. Waters
    such as ephemeral streams and adjacent wetlands, which have a
    significant nexus to a traditionally navigable water, should be Waters
    of the United States.
        Like many other actions taken by EPA over the last two years, this
    one appears to be rooted in political gamesmanship rather than
    responsible governance.
              Targeted Attacks on Clean Water in Washington State
        While many of EPA's efforts are aimed at undermining Americans'
    access to clean water across the country, this Administration has also
    launched a number of attacks that are aimed directly at clean water in
    Washington state.
        This is perhaps most evident in their repeal of the Water Quality
    Standards for Human Health Criteria--also known as our ``fish
    consumption rule.'' This rule only applies to our state and it deals
    with how we protect the health of Washingtonians that consume fish such
    as salmon and trout from our marine and fresh waters.
        Washington's fish consumption rule was finalized under the Clean
    Water Act in 2016 after extensive public processes that included the
    voices of communities, tribes, local governments, and businesses.
        Yet in May, this EPA took the counterproductive and punitive step
    of repealing our rule, creating an atmosphere of regulatory and legal
    uncertainty that benefits no one.
        As we have come to expect from this administration, they acted
    against the repeated objections of our state and those of Washington's
    tribes--and without a legal basis for the reconsideration of our
    standards. Under the Clean Water Act, there are only two circumstances
    under which EPA can propose new water quality standards for a state,
    and neither circumstance currently exists in Washington.
        We have already filed a lawsuit to stop EPA's overreach because
    what they are doing is clearly illegal under the Clean Water Act, is
    creating chaos, and opens up our businesses and local governments to
    third party lawsuits.
        Congress should be equally outraged by EPA's willful disregard for
    the law.
                    Congress Must Uphold the Clean Water Act
        Taken individually, each of EPA's actions threatens clean water and
    states' congressionally delegated authority to safeguard our natural
    resources and our communities.
        Taken together, it is clear that the Clean Water Act is now under
    direct and sustained attack, and this EPA will stop at nothing to
    please polluters--including overturning protections that have
    safeguarded our waters for decades.
        While states are being tossed aside and ignored, Congress has the
    constitutional authority as an equal branch of government to assert
    itself and provide critical oversight of an unchecked executive branch.
        When it enacted the Clean Water Act, Congress clearly intended for
    the federal government to administer the law in coordination with
    states, with both levels of government working in tandem to ensure the
    law's effective implementation and the protection of our nation's
    waters.
        This EPA's sweeping actions are a violation of that intent, and an
    insult to the concept of ``cooperative federalism.''
        Rather than treating states as co-regulators, EPA is focused on
    undermining the right and obligation of every state to safeguard our
    waters and our residents from environmental harm.
        Americans deserve better. We all deserve clean water.
        In Washington state, and other states across the country, we take
    our role to protect water seriously. But we need your help.
        We are encouraged that this committee is standing up and taking
    notice that EPA is no longer faithfully executing the law or
    implementing the Clean Water Act as intended. Washington state fully
    supports this much needed oversight to reign in this Administration's
    outrageous actions.
        Together, we can restore the promise of clean water for every
    American, in every state and territory.
        Thank you, and I look forward to answering your questions.

        Mrs. Napolitano. Thank you, Ms. Bellon.
        Next I have Becky Keogh. You have the floor.
        Ms. Keogh. Thank you, Madam Chair and Ranking Member. I am
    Becky Keogh, secretary of the Arkansas Department of Energy and
    Environment. I bring greetings from the Natural State and from
    my Governor, your former colleague, the Honorable Asa
    Hutchinson. It is an honor to be here in Washington, DC, today
    appearing before the subcommittee.
        As our State slogan suggests, in Arkansas, we are
    incredibly concerned with the health, beauty, and safety of the
    waters of the United States. In fact, our Governor has recently
    taken extraordinary steps, both financial and regulatory, to
    ensure the enduring beauty and quality of America's first
    national river, the beautiful Buffalo, by successfully
    negotiating a permanent closure and conservation easement
    conversion of a 6,500-plus hog operation near the river. Our
    Governor noted that he believes in farming, but that it must be
    balanced with efforts to preserve the Buffalo as a national
    treasure.
        Finding the balance between progress and preservation is a
    constant struggle for environmental regulators, legislators,
    and increasingly now more often, Federal judges. That is one
    too many cooks in the kitchen, I think we can all agree. When
    judges are left to be legislators, we have all failed.
        The recent repeal of the 2015 Clean Water Rule is the first
    step in making sure we are all using the same cookbook and the
    same recipe. Prior to the recent repeal, 22 States followed the
    2015 rule, while 27 did not. And New Mexico was left unclear as
    to which cookbook to use or even if it was able to cook at all.
        Now, Arkansas was not subject to the 2015 rule, but our
    bordering States of Tennessee and Oklahoma were. Yet we share
    similar ingredients. The Mississippi River, with Tennessee,
    creating jurisdictional and adjacent wetland issues, and
    Oklahoma where we share numerous interstate waters, some
    tributaries of which may be currently jurisdictional in
    Oklahoma but not in Arkansas.
        Without a consistent definition of what is and what is not
    a water of the United States, States are left to whip something
    up from scratch. Arkansas and Oklahoma, with our Cherokee
    National Tribal partners, are for the first time ever working
    together on an Illinois River watershed improvement plan. This
    basin-wide effort seeks to restore and protect the Illinois
    River by engaging stakeholders, cities, and industry to address
    historical issues, while ensuring community and agricultural
    progress continues, a common application of WOTUS, while
    enabling bordering States to effectively manage shared water
    bodies.
        But it is not only uniformity that we seek. We also want a
    rule that is lucid, not ludicrous, in its application. The 2015
    rule had broad opposition because of its, in pot-stirrer terms,
    perhaps unconstitutional reach. The rule made it possible to
    regulate waters on private land that were invisible to the
    naked eye, with no physical channel or evidence of water flow.
    With the broad ``we will know a regulated water body when we
    see it'' reach of the rule, routine activities, such as home
    construction, farming, and infrastructure investment were
    stalled as the EPA and Corps functioned as more local zoning
    boards than Federal regulators.
        Seeking relief from this ambiguity and overreach, we turned
    up the heat, pushing EPA and the Corps for dramatic overhauls
    of this rule. We sought respect for the integrity of State
    regulatory programs through removal of the rule's wasteful
    Federal duplication. We don't always need that second helping.
    We asked them to serve up a solution that abandoned the
    helicopter mom mentality and regulatory authorization and
    decisionmaking.
        In Arkansas specifically, we needed a rule that supported
    critical expansion of our broadband and highway
    infrastructures.
        Supreme Court Justice Scalia set out a recipe for success
    in Rapanos v. United States when he instructed that the Clean
    Water Act apply only to waterways with relatively permanent
    surface water connections to navigable waters. And last week,
    Administrator Wheeler and Assistant Secretary James finalized
    these efforts to repeal the 2015 regulation, clarifying that
    water bodies like the Buffalo River are subject to the Clean
    Water Act but our backyard puddles are not.
        While limiting ingredients of the Clean Water Act and
    spelling out each step of a proper recipe, proposed revisions
    also curtail States who set out to broadly apply section 401 of
    the Clean Water Act, negatively impacting the economies of
    other States and perhaps in direct violation of the Commerce
    Clause. Again, a little bit more pot stirring.
        The proposals allow the States the flexibility of
    ``seasoning'' a solution, but prevent States with waterways
    from shutting out neighboring States from entire markets. And
    while we do not face these same waterway challenges, Arkansas
    is a net exporter of natural gas and supporting the protective
    permitting program that reduces environmental risk while at the
    same time meets market-response and critical-use needs.
        This balance is accomplished in Arkansas through
    innovation, technology, and best management practices. Our
    secret ingredients--forestry-led initiatives like streamside
    management zones, proper logging road construction, prescribed-
    burn academies, and unpaved road initiatives--have contributed
    to Arkansas' 92 percent adoption rate of forestry BMPs, with
    resulting water quality protections and wildfire prevention.
        In closing, I echo the words of the ranking member, a
    fellow engineer and a friend to Arkansas, the Honorable Bruce
    Westerman. In support of a new WOTUS rule and in support of a
    common cookbook with a workable recipe, he reminds us that
    rolling back the 2015 rule ends years of uncertainty over where
    Federal jurisdiction begins and ends. For the first time, we
    are clearly delineating the difference between federally
    protected and State-protected wetlands.
        Thank you for your time and consideration.
        [Ms. Keogh's prepared statement follows:]

     Prepared Statement of Becky W. Keogh, Secretary, Department of Energy
                       and Environment, State of Arkansas
        Chairman Grace Napolitano (CA) and ranking member Bruce Westerman
    (AR), I am Becky Keogh, Secretary of Arkansas's Department of Energy
    and Environment. I bring greetings from the Natural State and from my
    Governor (your former colleague) the Honorable Asa Hutchinson. It is an
    honor to be in Washington, D.C. today appearing before the Subcommittee
    on Water Resources and Environment. As our state slogan suggests, in
    Arkansas we are incredibly concerned with the health, beauty, and
    safety of the waters of the United States. In fact, our Governor has
    recently taken extraordinary steps (both financial and regulatory) to
    ensure the enduring beauty and quality of the Buffalo National River,
    America's first National River, which was designated as such by this
    very body several decades ago. Arkansas's own senior statesman, John
    Paul Hammerschmidt, lead the charge to preserve the Buffalo River as
    both a pristine resource and a majestic treasure. And Governor
    Hutchinson picked up where Congressman Hammerschmidt left off by
    successfully negotiating an agreement to further protect the Beautiful
    Buffalo River and to establish permanent protection through a
    conservation easement on land where a controversial 6500 plus hog farm
    was authorized and operating. His action was accompanied by a call for
    a permanent moratorium on similar facilities in the river's watershed.
    In the announcement, Governor Hutchinson noted that he ``believes in
    farming,'' but that must be balanced with efforts to preserve [the
    Buffalo] as ``a national treasure.''
        Finding the balance between progress and preservation is a constant
    struggle for environmental regulators, legislators, and increasingly
    more often, federal judges. That is one too many cooks in the kitchen,
    I think we all can agree. When judges are left to legislate, we have
    all failed. The recent repeal of the 2015 Clean Water Rule is the first
    step in making sure we are all using the same cookbook and the same
    recipe. Prior to the recent repeal, twenty-two states followed the 2015
    Rule, while twenty-seven did not. (And, Arkansas's fellow Region 5
    state, New Mexico was left unclear as to which cookbook to use or if it
    was able to cook at all). According to United States Court of Appeals
    for the Eighth Circuit, Arkansas was not subject to the 2015 Rule, but
    our bordering states of Tennessee and Oklahoma were. Yet, we share
    common ingredients: the Mississippi River with Tennessee (creating
    jurisdictional and adjacent-wetland issues); and with Oklahoma we share
    numerous interstate waters some tributaries of which may currently be
    jurisdictional in Oklahoma but not in Arkansas.
        Without a consistent definition of what is and what is not a Water
    of the United States (WOTUS), states were left to whip something up,
    from scratch. Arkansas and Oklahoma, with our Cherokee National tribal
    partners, are--for the first time ever--working together on an Illinois
    River watershed improvement plan. The basin-wide effort seeks to
    restore and protect the Illinois River, which also runs through the
    Cherokee Nation. The plan engages stakeholders, cities, and industry to
    jointly address historical issues and to assure progress continues
    while realizing the growth of community and agricultural interests.
    While our multi-state and tribal partners share a sense of direction,
    we struggled with boiling down our different regulatory mandates into
    one pot containing seemingly the same, but (at least according to the
    2015 rule) actually different quality water. Having a uniform
    understanding of the fundamental definitions of WOTUS will certainly
    enable more effective management of shared water bodies among the
    states. But, it is not only uniformity that we seek. (As they say,
    never trust a skinny cook.) We want also want a rule that is lucid not
    ludicrous in its application.
        The 2015 Rule has diverse and widespread opposition because of its
    extraordinary, (in pot-stirrer terms) perhaps unconstitutional, reach.
    The rule would have made it possible to regulate ``waters'' that were
    in reality dry land, such as a depressions in land that hold water a
    few days a year after heavy precipitation. Under the rule, citizens
    were encumbered from engaging in routine activities, such as home
    construction, infrastructure investment, and farming. The 2015 rule was
    so extreme it even sought to regulate waters invisible to the naked
    eye. The American Farm Bureau Federation explained:

            . . . distant regulators using ``desktop tools'' can
            conclusively establish the presence of a ``tributary'' on
            private lands, even where the human eye can't see water or any
            physical channel or evidence of water flow. That's right--
            invisible tributaries! The agencies even claim ``tributaries''
            exist where remote sensing and other desktop tools indicate a
            prior existence of bed, banks, and [ordinary high-water marks],
            where these features are no longer present on the landscape
            today.

        And, as Heritage Foundation Senior Research Fellow Daren Bakst
    aptly stated: ``If waters didn't fall under specific categories as
    listed in the rule, then the . . . rule created a backup plan'' to
    extend its reach by including a `'we will know a regulated water when
    we see it aspect of the rule.'' And as a means to this end, the EPA and
    the Corps were functioning more as local-zoning boards than federal
    regulators.
        A broad range of states, citizens, tribal nations, cities, and
    industries started turning up the heat on the EPA and Corps of
    Engineers, demanding relief from the ambiguity and overreach of the
    2015 rule. From our view, a dramatic change was critical to the
    continued vitality of our farmers, counties, and industries. We asked
    the EPA and the Corps to remove wasteful regulatory duplication (we
    don't always need a second serving of regulation) and to respect the
    integrity of our state programs. We asked them to serve up a solution
    that abandoned (or at least simmered down) their helicopter-mom
    mentalities that occurred in regulatory authorization and decision
    making. In Arkansas specifically, we needed a rule that would allow
    critical investments to advance and expand broadband and highway
    infrastructure.
        Supreme Court Justice Scalia set out a recipe for success when he
    argued that the Clean Water Act applied only to waterways with
    ``relatively permanent'' surface water connections to navigable waters
    in the Rapanos v. United States 4-1-4-decision. And just last week, all
    this pot stirring has come to a head, as EPA Administrator Andrew
    Wheeler and Assistant Secretary of the Army for Civil Works R.D. James
    E finalized their efforts to repeal the 2015 regulation, and in so
    doing clarified which wetlands and waterways are subject to the Clean
    Water Act. (Who says a watched pot never boils?) As noted by our United
    States Senator, Tom Cotton, we now have a workable rule that is:

            more sensibly balanced between conservation, on the one hand,
            and development. We want to protect our waterways, which is the
            source of so much enjoyment and satisfaction and commerce in
            our state and all across the country, but at the same time we
            want to protect private property rights and development as
            well,'' he said. ``Rivers like the Buffalo National River or
            the Arkansas River [or] the White River are waterways of the
            United States, clearly, under what our founders meant in the
            Constitution. Puddles in backyards? Not so much.

        By sorting out the required and limited ingredients of the Clean
    Water Act and spelling out each step of the proper recipe, these
    revisions curtail states who set out to misapply Section 401 of the
    Clean Water Act in ways that negatively impact the economies of other
    states, perhaps (more pot stirring) in violation of the Commerce
    Clause. The new rule allows states the flexibility of ``seasoning'' the
    solution, but prevents states from shutting out neighboring states from
    entire markets. And while we do not face the same waterway challenges
    of some states, Arkansas is a net exporter of natural gas and is
    thereby supportive of a protective permitting program that reduces
    environmental risk while at the same time meets market-response and
    critical-use needs.
        And, in Arkansas we further reduce environmental risk by employing
    a variety of best management practices. Of particular concern to you,
    Congressman Westerman, Arkansas's Secretary of Agriculture, Wes Ward,
    reports a high adoption rate of forestry best management practices,
    including water-quality protection as well as unique agriculture
    engagement to manage and prevent wildfires. As you know, these Arkansas
    forestry-led initiatives (from how to build temporary logging roads:
    where to put dips and turnout ditches, how to do stream crossings with
    skidders when logging, to stream-side management zones that require at
    least thirty-five feet of trees to remain on both sides of the stream,
    for seventy-feet total, along with prescribed-burns and prescribed-burn
    education as well as an un-paved road initiative modeled after a
    successful Pennsylvania program) have proven effective in preventing
    wildfires, increasing shade, and reducing sediment. In 2018, Arkansas
    statistically monitored 200 recent logging jobs for best management
    practices and found there was an 92% implementation rate. Such action
    underscores Arkansas's commitment to conservation, it could be said
    that we are cooking up a storm with state-led environmental solutions.
        In closing, I will echo the words of the ranking member of this
    committee, your friend and a friend to Arkansas, the Honorable Bruce
    Westerman. In his support of the new WOTUS rule (in his support of a
    common cookbook, with a workable recipe), he noted that the rollback of
    the 2015 rule ends ``years of uncertainty over where federal
    jurisdiction begins and ends. For the first time, we are clearly
    delineating the difference between federally protected wetlands and
    state-protected wetlands.'' Thank you for your time and consideration.

        Mrs. Napolitano. Thank you, ma'am.
        We now may proceed with Mr. Kopocis. You are on.
        Mr. Kopocis. Thank you.
        Thank you, Chair Napolitano, Ranking Member Westerman, for
    the invitation today. I am here in a personal capacity.
        The U.S. has made great strides since our environmental
    laws were enacted in the late 1960s and early 1970s, but we are
    only one-half of the way to the goals Congress set in 1972 for
    fishable and swimmable waters, and that goal was to be met by
    1983.
        With much work remaining to improve water quality, the
    Trump EPA appears determined to roll back water quality
    protection wherever possible. To date, EPA actions include
    reducing the scope of waters protected from pollution and
    destruction under the Clean Water Act to levels not seen since
    the Clean Water Act was enacted.
        Just last week, EPA finalized a rule to return the scope of
    waters protected to those established by the Reagan
    administration. This is directly contrary to the position of
    all interest groups following the confusion generated by the
    Supreme Court. And that point was made quite eloquently by the
    chairman of this committee.
        I was on the staff of this committee at that time, and I
    can tell this committee that no one argued to retain the status
    quo. Some argued for regulation, some argued for legislation,
    but nobody asked for the Reagan-era rule, yet that is the
    course that the Trump EPA is pursuing.
        Even more detrimental to water quality, EPA is finalizing a
    rule that, as proposed, would further weaken the Clean Water
    Act by eliminating protection for thousands of stream miles and
    wetlands nationwide, including 55 million acres of farmland
    containing wetlands, an area roughly the size of Nebraska.
        The proposal was clearly based upon Justice Scalia's
    plurality opinion in Rapanos, which five Justices rejected. And
    notwithstanding what Mr. Ross said about the concurrence of
    Justice Kennedy, Justice Kennedy called the Scalia opinion
    unpersuasive and, quote, ``inconsistent with the acts, text,
    structure, and purpose,'' close quote.
        While there has been a lot of discussion about the proposal
    providing more clarity, I would argue that it provides far less
    clarity. If a landowner is supposed to know what is or is not
    covered on their property--I can read you some of the language
    that is in the proposal saying that landowners will have to
    rely on trapezoidal flumes and pressure transducers for
    measuring surface flow and comparing that to rainfall, but they
    will need to do regional regression analysis or hydrologic
    modeling, that the rule itself admits will be challenging to
    accomplish in the field and could be time-consuming. That is
    from the proposal.
        In developing the Clean Water Rule, EPA's Office of
    Research and Development prepared an exhaustive synthesis of
    peer-reviewed science on how waters are connected. EPA has made
    no attempt to refute the science. Instead, EPA chose to ignore
    it. EPA ignoring science is like the CIA ignoring intelligence
    or NOAA ignoring weather forecasts.
        The EPA is reconsidering the steam electric effluent
    limitations guidelines. These controls would annually eliminate
    1.4 billion pounds of arsenic, lead, mercury, cadmium,
    selenium, chromium; 30 percent of all toxics discharged by
    industry in the United States, as well as nutrients from our
    waters. The EPA is doing so even as the Fifth Circuit Court of
    Appeals ordered the EPA to consider stronger controls on
    discharges, not weaker ones.
        And I would also point out that Mr. Ross, earlier in answer
    to a question, seemed to not want to answer on the coal
    combustion residuals rule, known as CCR, not Creedence
    Clearwater Revival. But that rule is also under reconsideration
    at this point. So the Agency is currently in the process of
    relaxing the requirements for water discharges while
    simultaneously reviewing the rule that would have controlled
    the existing impoundments, the very issue that the Fifth
    Circuit told the EPA to look at.
        The EPA is allowing greater amounts of pollutants from
    treatment plants through blending. Make no mistake, this is a
    reduction in the secondary treatment requirements that Congress
    wrote into the law in 1972.
        We have already heard about EPA reversing its positions on
    section 401. Ms. Bellon explained very clearly why that is so
    important to the States. Mr. Ross himself acknowledged that
    these permits could take 4 to 5 years, yet he would propose to
    cut off a State's action to act on that permit in year 1, when
    the State doesn't even know what the project is that it needs
    to protect its water quality from.
        The Trump EPA is systematically taking the cops off the
    beat by significantly reducing its ability to enforce
    environmental protection laws through budget cuts and reducing
    the actions it takes. These reductions are a conscious decision
    to create more avenues for our bedrock environmental laws to be
    violated without fear of being caught or responsibility.
        Candidate Trump promised to get rid of EPA in almost every
    forum, leaving, quote, ``little tidbits'' intact. This may be
    in the interest of developers, oil and gas, agribusiness, and
    significant polluters, such as coal-fired plants, but it is not
    in the interest of the public or the environment. In my 34
    years of water law, I have never heard the public say 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, or that we need more beaches to be
    closed due to pollution.
        EPA needs to do its job in protecting human health and the
    environment under the Clean Water Act. This is not a time for
    retreat.
        Thank you.
        [Mr. Kopocis' prepared statement follows:]

      Prepared Statement of Ken Kopocis, Associate Professor, Washington
                      College of Law, American University
        Chairman Napolitano, Ranking Member Westerman, and other members of
    the subcommittee, thank you for the request to appear today to discuss
    the ``The Administration's Priorities and Policy Initiatives under the
    Clean Water Act.'' I appear today in a personal capacity.
        In 1972, Congress established the objective of the Clean Water Act,
    to restore and maintain the chemical, physical, and biological
    integrity of the Nation's waters. Congress made clear that this
    objective would be best achieved by controlling pollutant discharges at
    their source, and reemphasized that objective through the substantial
    amendments of 1977 and 1987 that tightened controls on pollutant
    discharges. Congress made improving water quality the heart of the
    statutory and regulatory program.
        Congress also created significant roles for the States in the
    implementation of the Clean Water Act, and today most of the day-to-day
    activities for implementing the Clean Water Act are carried out by the
    States with assistance and approval by EPA.
        The President has frequently said that the United States has the
    cleanest air and water. While that characterization is rated mostly
    false by PolitiFact, the U.S. has made great strides since our
    environmental laws were enacted in the late 1960's and early 1970's. We
    have doubled the waters meeting state-established water quality
    standards, but we are only one-half the way to the goals Congress set
    for fishable, swimmable waters in 1972--a goal Congress said should be
    reached by 1983.
        With much work remaining to improve water quality, the Trump EPA
    appears determined to roll back water quality protection wherever
    possible. To date, EPA actions include----
        Reducing the scope of waters protected from pollution and
    destruction under the Clean Water Act to levels not seen since the
    Clean Water Act was enacted.
        Just last week, EPA finalized a rule to return the scope of waters
    protected to those established by the Reagan administration. This is
    directly contrary to the position of all interest groups following the
    confusion generated by the Supreme Court in the Rapanos v. U.S.
    decision in 2006. I was on the staff of this committee at that time and
    no one argued to retain the status quo. Some argued for legislation and
    some for regulation, but no one wanted to retain the Reagan-era rule.
    Yet, that is the course the Trump EPA is pursuing.
        Even more detrimental to protecting water quality, the EPA is
    finalizing a rule that as proposed would further weaken the Clean Water
    Act by eliminating protection for thousands of miles of streams and
    wetlands nationwide, including 55 million acres of farmland containing
    wetlands--an area the size of Nebraska.
        EPA is reconsidering the steam electric effluent limitations
    guidelines. These are controls on coal-fired power plants that would
    eliminate annually 1.4 billion pounds of arsenic, lead, mercury,
    selenium, chromium, cadmium--30% of all toxics discharge by all
    industrial categories under the Clean Water Act--and nutrients from our
    waters. EPA is doing so even as the Fifth Circuit Court of Appeals
    ordered EPA to consider stronger controls on discharges associated with
    power plants, not weaker.
        The Trump EPA is looking to allow greater amounts of pollutants
    from treatment plants through dilution--a process called blending. Make
    no mistake, while plants sometimes use this blending concept during
    unusual flow events, this is a reduction in the secondary treatment
    requirements Congress wrote into the law in 1972. If a community has an
    infiltration/inflow problem or a lack of capacity for treatment that is
    what should be addressed, plants should not simply dilute untreated
    waste. These investments have been eligible uses of federal assistance
    since 1972.
        EPA reversed its decades old position that prohibits disposing of
    waste without limit or treatment though unlined pits or underground
    where this disposal is so connected to nearby protected waters that the
    nearby waters become polluted. No public comment, just a reversal to
    allow greater pollution.
        EPA wants to limit the ability of states to protect their waters to
    state standards by restricting the ability of states affect water
    quality in federal permits, even while EPA argues in restricting the
    scope of the Clean Water Act that states know best how to protect their
    waters.
        EPA is placing resource extraction--mining, oil and gas, and
    logging--above environmental protection by limiting its own authority
    to protect drinking water and natural resources from unacceptable
    impacts.
        The Trump EPA is systematically taking the cop off the beat by
    significantly reducing its ability to enforce environmental protection
    laws through budget cuts and reducing the actions EPA takes.
        The Christian Science Monitor conducted a thorough analysis of EPA
    enforcement data and documented some disturbing results. The Monitor
    reported that fines against polluting lawbreakers, for fiscal year
    2018, totaled about $69 million--the lowest, by a significant degree,
    since the EPA's enforcement office was created in 1994.
        On another key measure, injunctive relief--the cost of complying
    with an EPA order--the $3.95 billion figure reported by the EPA is the
    lowest in 15 years. The Monitor found that 40 percent of the total is
    from cases that were settled by the EPA under President Obama. The
    average annual cost of compliance is $7.74 billion, nearly double EPA's
    most recent figures.
        Other disturbing findings of the Monitor include: inspections in
    2018 were the lowest since records began in 1994; the number of civil
    cases initiated was the lowest of any year since 1982; judicial
    referrals for both 2017 and 2018 were 110--the lowest number since 1976
    and less than half the average annual number of 239.
        While numbers may vary from year-to-year, these precipitous
    declines are not a mere variance or outlier. These reductions in
    environmental enforcement reflect a conscious decision to create more
    avenues to ignore our bedrock environmental laws without fear of being
    caught or held responsible.
        Clean water in adequate supply is essential to our existence.
    Whether illustrated by the recent droughts in California or the lead
    contamination in Flint, Michigan, we have daily reminders that water is
    essential to life. Waters are also important to the environment in
    which we live. Rivers, lakes, ponds and wetlands supply and cleanse our
    drinking water, ameliorate storm surges, provide invaluable storage
    capacity for flood waters, and enhance our quality of life by providing
    essential habitat, myriad recreational opportunities, as well as
    important water supply and power generation benefits.
        Consider these facts about the value of clean water to Americans:

          Manufacturing companies use nine trillion gallons of
    fresh water every year.
          31 percent of all water withdrawals in the U.S. are for
    irrigation, highlighting the extent to which the nation's farmers
    depend on clean water.
          About 40 million anglers spend $45 billion annually to
    fish in U.S. waters.
          The beverage industry uses more than 12 billion gallons
    of water annually to produce products valued at $58 billion.
          About 60 percent of stream miles in the U.S. only flow
    seasonally or after rain, but are critically important to the health of
    downstream waters.
          Approximately 117 million people--one in three
    Americans--get their drinking water from public systems that rely on
    seasonal, rain-dependent, and headwater streams.

        The EPA and Department of the Army issued the Clean Water Rule in
    2015 to ensure that the Nation's waters could continue to provide these
    essential benefits, making waters better protected from pollution and
    destruction by having the scope of the Clean Water Act easier to
    understand, more predictable, and more consistent with the law and
    peer-reviewed science.
        The EPA has repealed the 2015 Clean Water Rule. But its proposed
    replacement is a retreat from Congress' clearly stated objective of
    protecting the Nation's waters.
        The proposal was clearly based upon Justice Scalia's plurality
    opinion in Rapanos. The proposal rejects the ``significant nexus'' test
    that informed a unanimous court in U.S. v. Riverside Bayview Homes in
    1985 and that was clearly stated by the majority in Solid Waste Agency
    of Northern Cook County v. Army Corps of Engineers in 2001. Rather than
    adhere to Supreme Court precedent, EPA appears to be challenging the
    Supreme Court by establishing yet another test, supported by only four
    of the nine justices in Rapanos, for determining which waters will be
    protected from pollution and destruction by the CWA. Such a path is
    inconsistent with the CWA, judicial and administrative precedent, and
    the concurring opinion of Chief Justice Roberts in Rapanos wherein he
    cited Supreme Court precedent on how to interpret a decision when no
    opinion commands a majority of the Court.
        A majority of the Court, five of nine justices, expressly rejected
    Justice Scalia's plurality opinion in Rapanos. In addition to the four
    dissenting justices who rejected the plurality opinion, Justice
    Kennedy, while concurring in the judgment to vacate and remand the
    cases, wrote that Justice Scalia's plurality opinion finding that the
    CWA did not cover intermittent or ephemeral streams or wetlands ``makes
    little practical sense in a statute concerned with downstream water
    quality'' and was ``unpersuasive.'' He concluded his assessment of the
    plurality opinion in particularly direct terms, ``In sum, the
    plurality's opinion is inconsistent with the Act's text, structure, and
    purpose.''
        A Scalia-based rule also has many adverse practical effects for
    protecting State waters from pollution and destruction. For example,
    eliminating the protection for intermittent and ephemeral streams will
    remove Clean Water Act protection for a significant number of waters.
    In more arid areas of the country, this could be as high as 80 to 90
    percent of waters no longer protected. These waters would no longer be
    protected by water quality standards, no Clean Water Act permits would
    be required for discharges of pollutants, funding to address municipal
    wastewater, stormwater, and nonpoint source pollution would be less
    available, and Federal authority to respond to oil spills would be
    curtailed. While some argue that States can and will fill this void,
    since the scope of the Clean Water Act was first limited in 2001 and
    further limited in 2006, there is little evidence that the States have
    done so.
        In developing the Clean Water Rule, 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. This Science Report was also peer-reviewed by EPA's
    independent Science Advisory Board and subjected to public comment. The
    Science Report informed the agencies' actions in response to the policy
    guidance provided by the Supreme Court in both the SWANCC and Rapanos
    decisions--how best to consider the significant nexus between upstream
    and downstream waters when determining the jurisdiction of the Clean
    Water Act.
        The final Science Report provides several key conclusions based on
    review of the peer-reviewed scientific literature:

        1.  All tributary streams, including perennial, intermittent, and
    ephemeral streams, are physically, biologically, and chemically
    connected to downstream rivers and this connection influences the
    integrity of downstream rivers.
        2.  Wetlands and open waters in floodplains and riparian areas are
    physically, chemically and biologically connected with downstream
    rivers and influence the ecological integrity of such rivers.
        3.  Non-floodplain wetlands and open waters (i.e., isolated waters)
    provide many functions that benefit downstream water quality and
    ecological integrity.
        4.  The connectivity of streams, wetlands and other surface waters,
    taken as a whole, to downstream waters occurs along a continuum from
    highly connected to highly isolated--but these variations in the degree
    of connectivity are critical to the ecological integrity and
    sustainability of downstream waters.
        5.  The critical contribution of upstream waters to the chemical,
    physical, and biological integrity of downstream waters results from
    the accumulative contribution of similar waters in the same watershed
    and in the context of their function considered over time.

        Continuing even to today, the validity and credibility of the
    science developed by the EPA to support the Clean Water Rule has not
    been seriously challenged. EPA has not denied or refuted the science.
    The various litigants challenging the Rule have not put forward newer
    or better science to dispute the conclusions of the Science Report. If
    there is better science, those challenging the conclusions, whether
    public or private, have an obligation to bring such science to the
    attention of the public and the agencies for their consideration.
    Without such new information, EPA must stand behind the prior work.
    Instead, EPA is choosing to ignore it.
        EPA ignoring science is like the CIA ignoring intelligence or NOAA
    ignoring weather forecasts.
        The Trump EPA has put forward a false choice that providing
    protection against polluting and destroying waterbodies somehow is
    averse to States' interests. Under the Clean Water Act, States decide
    how clean their waters will be by establishing the designated use for
    waters within the State. States are also able to establish water
    quality criteria that support those uses. Forty-seven of the fifty
    States already implement many day-to-day aspects of the Clean Water Act
    through state permitting programs. The federal-state partnership has
    worked will to improve and protect water quality since 1972. This is no
    time to dissolve the partnership.
        The Clean Water Act is often referred to as our most effective
    environmental law, and it has resulted in great improvements in water
    quality. However, the work is far from finished--State generated water
    quality reports indicate hundreds of impaired waters need reduced
    pollution and increased protection. Abandoning upstream waters and
    continuing the confusion on how to protect water quality, eliminating
    or reducing regulatory requirements to eliminate toxic discharges,
    taking the cops of the beat, restricting the rights of states to
    protect their waters, and other steps of the Trump EPA do not advance
    these joint efforts at the State and Federal level.
        Candidate Trump promised to get rid of the Environmental Protection
    Agency ``in almost every form,'' leaving only ``little tidbits''
    intact. This may be in the interest of developers, oil and gas,
    agribusiness and significant polluters such as coal-fired power plants,
    but not in the interests of the public or the environment. In my
    thirty-four years in water law, I have never heard the public say 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. EPA needs to do its job in protecting human health
    and the environment under the Clean Water Act. This is not a time for
    retreat.
        Thank you again, I am pleased to answer any questions you may have.

        Mrs. Napolitano. Thank you, Mr. Kopocis. Thank you for your
    testimony.
        And I will proceed with Mr. Hickey.
        Mr. Hickey. Thank you very much, Chairwoman. Obviously,
    public speaking, this isn't really my most favorite place to
    be, doing, at all. So I really appreciate the opportunity, and
    hopefully I won't mess this up too badly.
        But thank you, Congressman Delgado, for everything that you
    are doing for our community.
        For me, kind of an accidental advocate for my community
    and, you know, it was really more about a mission for my dad. I
    started out as a heartbroken son, and I turned into an advocate
    because of that. Who is at fault is we have multiple industrial
    plants. One is called Saint-Gobain that uses PFOA. It has been
    in Hoosick Falls since 1955. We once had 11 operating plants
    that had over 500 employees. Now we are down to 2 with 200. So
    it has been there, and it is the lifeblood of Hoosick Falls.
        So my dad was diagnosed with kidney cancer in 2010, the
    month before my son was born. And he actually had his kidney
    out the day my son was born. So my dad went into surgery, had
    his kidney out, and I went upstairs and had my son. So, it was
    a process, pretty difficult at that point in time. You know,
    and kind of the next 2 years went by; he was OK. And the kidney
    cancer came back--and the second kidney in 2012, and he passed
    away early on in 2013.
        My dad worked multiple jobs. He worked in the factory 11 to
    7 o'clock, and he drove a schoolbus during the day. And he was
    retired for 9 months before he passed away. So working two
    concurrent jobs for 32 years is a lot, and me and my brother
    and my sister had great opportunities because of the work that
    my mom and dad did in the plant. And I am not an
    environmentalist, and I probably couldn't have given you the
    full definition of what is a Democrat or Republican. You know,
    and this issue for me has been more common sense. And that is
    kind of what I have tried to do throughout the process.
        So, in Hoosick Falls, we have only 3,500 people on the
    public water supply, and PFOA at that point in time wasn't
    tested because our town was too small. It was only 3,500
    people. Under the UCMR 3, you had to have 10,000 or above.
    Actually, how we got to that point was, a year after my dad
    passed away, a teacher passed away. And I did a simple Google
    search because I knew what was being manufactured in town at
    that point. And I typed in ``Teflon'' and ``cancer,'' and I
    came across the C8 science panel in West Virginia. And I read
    for the next 4 months every night probably 11 until 2, 3
    o'clock in the morning, probably the most driven I have ever
    been about anything ever.
        And I kept reading because it is a big accusation to blame
    your local employer about: You contaminated our water. You
    contaminated the people. You are making people sick.
        They are the lifeblood, and we are blue collar. So those
    jobs are extremely important. You know, that is what our
    community is about, and I am sure that many of your communities
    as well. You are hard workers. You are proud to work, and you
    want to be able to supply for your family.
        So, you know, I knew that was a big accusation to make. I
    went to the mayor, and we didn't test because of our size. So I
    kept on going. I talked to our local doctor. I said: You know,
    could there be anything to this, these six illnesses that are
    related in West Virginia? Do you see a lot of them here?
        And, yeah, we did, is what he said. We need to push
    forward. We need to do something. And then going to the county,
    to the State, nobody would test.
        So I found who did the testing in West Virginia. I ordered
    the kit from Canada, and we did the testing. I took water from
    my mom's house, my house, my McDonald's, the local dollar store
    and sent it back, and it came back at 540 parts per trillion at
    my house, 460 at my mother's. At that point, we knew we had a
    problem and brought that back to the mayor because, obviously,
    I wanted to hand him off a folder and be done at that point. It
    didn't go that way.
        It took another year and a half. I had to get an
    environmental attorney involved, and I think that that is why I
    am here today was to speak about the EPA. They played a large
    role in stopping the water from being drunk in Hoosick Falls
    under the previous administration, and I have had now the
    privilege to work with the prior administration and to work
    with the current. And it is a little night and day at this
    point in time, to tell you the truth.
        You know, Mr. Kelly, ``Kell'' Kelly, he was the Superfund.
    He came to Hoosick Falls. I met him. He was really nice. He
    gave me his card. He said, ``Call me whenever you need
    anything,'' because we have five Superfund sites, and one
    Federal. He resigned 3 days later, though. So that didn't
    really work out that great with him.
        I met Mr. Ross when I came for the State of the Union with
    Mr. Delgado, and I am sure that he is doing everything legally
    that he can in following the laws, but I think that there is
    common sense that we are missing out on right now. I think
    that, you know, the EPA has a position to help all of the
    States. In New York, we have a lot of resources. We have DEC
    and the DOH, and they stepped in, but you still needed the EPA
    to tell us about chemicals. And they are not doing that, and we
    need to continue to push forward with common sense.
        There is 20 years of research on PFAS, if not more. We just
    need to do some commonsense legislation.
        Thank you.
        Mrs. Napolitano. Would you wrap it up? Go ahead.
        Mr. Hickey. I am sorry. If I went over my time, I
    apologize.
        [Mr. Hickey's prepared statement follows:]

            Prepared Statement of Michael Hickey, Hoosick Falls, NY
        Good morning. Thank you, Chairwoman Napolitano, Ranking Member
    Westerman, and members of the subcommittee for the invitation to speak
    today and tell my story.
        My name is Michael Hickey. I live in Hoosick Falls, which is in
    upstate New York near the Vermont and Massachusetts border. I was born
    and raised there with my brother, my sister and my parents.
        Hoosick Falls is my home, and it is a casualty of PFAS water
    pollution that's left its toxic mark on my family and my neighbors.
        Just months into his retirement, my father, John Hickey, was told
    he had kidney cancer. He passed away from this disease in 2013. A year
    after that, a teacher passed away in her late 40s from cancer. There
    was speculation around town about how many people were getting these
    rare illnesses. When you're in a smaller community like Hoosick Falls,
    you pay attention to that, and I thought there might be something to
    it.
        I knew our village's water wells sat next to the local
    manufacturing facility that produces Teflon products, so I did a google
    search for ``Teflon'' and ``cancer.'' What I found was a C8 science
    panel from West Virginia and the first thing under the related illness
    section was a ``probable link'' between PFOA and kidney cancer--the
    very disease my dad passed away from.
        Teflon is the brand name of a lab-made chemical used in a variety
    of products, such as nonstick pots and pans. In my hometown, it was
    used to waterproof big tents. Teflon is made using a chemical called
    perfluorooctanoic acid, that is PFOA or C8, which is in the PFAS
    chemical family. These PFAS compounds are known as ``forever
    chemicals'' because they don't really break down in nature. They have
    been linked to a variety of health problems, from adverse impacts on
    the liver and the immune system to cancer.
        I had never been involved with any environmental issues before, so
    this was all new to me. I probably read about three hours a night for
    the next couple of months to try to figure it out. When I thought that
    I had enough information, I passed it on to a local physician and I
    asked him to take a look to see if there was a connection. He did. He
    thought there was a higher incidence of those illnesses in our
    community.
        At that point, we approached the mayor and asked if the city had
    tested for PFOA, but they had not because the EPA did not require it of
    smaller systems at that time.
        I wanted to be able to sleep at night. I wanted to know if our
    water was making us sick. So, I looked up who did the testing for the
    DuPont study and it was a lab out of British Columbia, Canada. After
    contacting that lab, I went and I tested the water at my house, my
    mother's house, the local dollar store, and the local McDonalds. The
    results came back two weeks later--and they were positive for PFOA. My
    mom's house had the highest at 540 ppt; mine was 460 ppt. At that
    point, I knew we had a big issue.
        Over the next 7 months, I worked with an environmental attorney out
    of Albany to look into the issue. He reached out to Judith Enck, who
    was the EPA administrator of Region 2 under the Obama Administration at
    the time.
        Ms. Enck came in and right away basically cut off the entire
    village from drinking the water. Shortly after that, the village became
    a Superfund site. To date, there's been about $30 million spent in
    Hoosick Falls on updating filtration, blood testing, and remediation.
    We're still looking for an alternate water source, so there's still
    things to be done, but it's been a long process.
        That's why I'm here today to ask the EPA to do better to prevent
    contamination in the first place. We need improvement in water
    infrastructure and to pay more attention to monitoring these chemicals.
    From what I've observed, this current administration is not as
    aggressive as the previous one. I met with Director Ross earlier this
    year and I was unimpressed with the lack of urgency that he gave this
    issue.
        Like the new mayor of Hoosick Falls, I view the EPA's so-called
    action plan for PFAS to be more of an inaction plan that further delays
    regulating these toxics. For example, the plan would delay determining
    if the EPA could possibly regulate PFAS under the Clean Water Act until
    2021. The science is clear that we need to protect our water sources
    now from further pollution from these dangerous chemicals. We should
    limit PFAS discharges to water bodies by adding PFAS limitations to
    NPDES permits and developing ambient water quality criteria for PFAS.
        The EPA is failing to do its job to protect us. We need a real
    action plan that treats this issue with the urgency and importance it
    needs. We need a plan that:

          Regulates PFAS immediately under the Clean Water Act;
          Cleans up the sources of contamination and contaminated
    water supplies;
          Makes the polluter pay for water contamination cleanup,
    including the military, which is responsible for many contaminated
    sites around the country;
          Sets enforceable standards for drinking water for the
    entire class of PFAS chemicals;
          Provides funding to help communities like Hoosick Falls
    provide safe water; and
          Provides training for healthcare professionals and
    medical monitoring in impacted communities.

        We need Congress to step up to make sure that smaller communities
    like Hoosick Falls are taken care of and that they're safe. These
    illnesses are real. They're affecting people every day.
        Thank you for the opportunity to testify today.
                            Hoosick Falls Background
        Hoosick Falls, a village of 3,500 people northeast of Albany, has
    become one epicenter of growing concerns around perfluorooctanoic acid
    (PFOA), an industrial chemical used to make Teflon. It has been called
    New York's Flint.
        In 2014, testing revealed high levels of PFOA in the drinking
    water. The majority of samples revealed PFOA levels exceeding 600 ppt,
    which was far higher than the EPA health advisory of 400 ppt at the
    time. Today the advisory level is 70 ppt, and there is evidence that
    this level is still far too high. Blood testing results were similarly
    alarming. Many residents were found to have PFOA levels in their blood
    that were 100 times the national average.
        The source of the contamination appears to be a nearby plastics
    factory, now operated by Saint-Gobain Performance Plastics, which used
    PFOA in its manufacturing process. Groundwater under a Saint-Gobain
    plant was found to have PFOA levels at 18,000 ppt. The EPA has added
    the Saint-Gobain Performance Plastics site to its Superfund National
    Priorities List of the most hazardous waste sites in the country, which
    requires the agency to ensure that the contamination is cleaned up.
        Hoosick Falls is still waiting on a real plan to connect to a new,
    safe municipal water supply.
                                PFAS Background
        Per- and polyfluorinated compounds (PFAS) are a group of lab-made
    chemicals first created in the mid-twentieth century that have caused
    widespread water and food contamination. PFAS are often referred to as
    ``forever chemicals'' due to their virtually nonexistent natural
    breakdown over time. As local, state and federal agencies expand
    testing for PFAS, we are beginning to understand the true scale of the
    problem. They are found in hundreds of locations across the country,
    affecting the water supply for millions of Americans.
        PFAS have been used to coat a wide range of products to protect
    against heat, chemicals and corrosion, and they have been used in
    aqueous film-forming foam to extinguish petroleum fires. While their
    stable chemical structure and ability to repel both water and oil makes
    them attractive for a wide variety of applications and products, these
    characteristics are also the very ones that have led to their
    widespread contamination of the environment and people.
        PFAS chemicals have been found in nearly the entire U.S.
    population, and a growing body of science has been documenting their
    toxicity and public health impacts. A 2003 to 2004 survey by the U.S.
    government estimated that over 98 percent of the U.S. population had
    detectable levels of PFAS in their blood.
        PFAS is a big chemical family. As of 2018, at least 478 PFAS
    chemicals had been reported to the EPA as being used in U.S. commerce.
    Other sources report that thousands of PFAS chemicals have been
    produced and used by various industries, in both the United States and
    around the world. The most studied and pervasive forms are
    perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).

          PFOA has been used in the production of the chemical
    polytetrafluoroethylene (PTFE), best known by the brand name Teflon,
    which was first synthesized in 1938 by a DuPont scientist and came into
    widespread use in the 1960s. The compound also has been used in
    waterproof textiles, electrical wire casing and more.
          PFOS has also been used in the production of everyday
    household items. One of the most well-known products that contained
    PFOS was 3M's line of Scotchgard stain repellants. PFOS also has been
    used in pesticides, surface coatings for carpets, furniture, waterproof
    apparel and paper goods.

        Recent reports show that new generations of PFAS, such as GenX,
    have been on the rise, with concentrations vastly exceeding those of
    the legacy PFAS chemicals. Despite claims of low bioaccumulation,
    emerging PFAS chemicals are as environmentally persistent as their
    predecessors. Additionally, there is evidence that these newer
    chemicals can break down to form their legacy counterparts.
        While awareness of these substances seems to have gained momentum
    in the last few years, evidence of their stubborn persistence and
    toxicity has been around since the late 1960s and 70s, only to be
    overlooked until relatively recently. This resulted in delayed
    intervention, allowing the continued release of the substances into the
    environment.
    Toxicity
        PFAS chemicals pose serious risks to human health, and emerging
    evidence indicates that even very low levels of PFAS exposure may not
    be completely safe for human health, particularly vulnerable
    populations such as infants. Infants may be especially vulnerable
    because of PFOA contamination of breast milk and because of their
    higher intake of water relative to their body weight. PFOA and related
    substances have been found in human maternal and cord blood in North
    America and abroad.
        There are a number of well-documented health effects associated
    with exposure to PFOA and other PFAS chemicals: high cholesterol;
    thyroid disease; reproductive effects, including decreased fertility
    and pregnancy-induced hypertension; decreases in birth weight; adverse
    impacts on the liver and on the immune system; decreased vaccine
    response; ulcerative colitis; and neurobehavioral effects such as
    attention deficit hyperactivity disorder (ADHD).
        PFAS chemicals may cause cancer. The World Health Organization's
    cancer research arm, the International Agency for Research on Cancer,
    classifies PFOA as a Group 2B carcinogen, or ``possibly carcinogenic to
    humans.'' The U.S. EPA concludes that there is ``suggestive evidence''
    of carcinogenicity of PFOA in humans. Highly exposed humans were
    observed to have correlating increases in testicular and kidney cancer.
    Water Treatment
        According to the EPA's Drinking Water Treatability database, PFOA
    and PFOS can be removed by up to 99 percent by processes such as
    granular activated carbon, membrane separation, ion exchange and
    powdered activated carbon. Aside from these technologies, PFAS removal
    is resistant to many, if not most, water treatment processes, while
    other technologies may in fact increase their concentrations. Other
    processes, such as powdered activated carbon, are effective at removing
    older PFAS chemicals, but become less effective with newer forms of
    PFAS, many of which are replacing the older ``legacy'' types of PFAS.
    Weak Regulations
        PFAS are not currently regulated under the Clean Water Act, and
    there is no enforceable federal standard for PFAS chemicals in drinking
    water under the Safe Drinking Water Act. Information on industrial PFAS
    releases is sparse. Facilities are not required to test for or report
    PFAS wastewater discharges since the EPA has not classified any of
    these chemicals as toxic pollutants or hazardous substances under the
    Clean Water Act.
        The EPA has established a lifetime drinking water health advisory
    level of 0.07 micrograms per liter (mg/L), or 70 ppt, for PFOA and
    PFOS, but it has not yet issued an enforceable Maximum Contaminant
    Level for drinking water. The health advisory level falls short not
    only in lack of effectiveness, but in stringency. Emails disclosed in
    early 2018 found that the EPA suppressed a scientific assessment of
    PFASs from a federal health research agency that recommended a much
    more stringent level of protection that was nearly 7 to 10 times lower
    than the EPA's health advisory.
                      The EPA Needs a Real Plan of Action
        As we begin to understand the scope of the problem, emerging
    research tells us that there are no 'safe' levels of PFAS in our
    drinking water. The EPA's PFAS Action Plan announced in February fails
    to implement immediate limits to effectively regulate PFOA and PFOS, or
    other PFAS. In addition, there are concerns about conflicts of interest
    within the agency. David Dunlap, a former Koch Industries official,
    runs the EPA's research arm that will shape regulations for dangerous
    chemicals in our water, such as PFAS. This raises red flags because
    Koch Industry's Georgia Pacific company is facing at least one class
    action lawsuit in Michigan related to PFAS contamination,\1\ and as of
    February 2019, a company spokesperson said it may still be
    manufacturing products with these chemicals.\2\
    ---------------------------------------------------------------------------
        \1\  Barrett, Malachi. ``Lawsuit alleges 3M and Georgia-Pacific
    caused Parchment PFAS emergency.'' MLive. November 21, 2018.
        \2\  Snider, Annie. ``Former Koch official runs EPA chemical
    research.'' Politico. February 4, 2019.
    ---------------------------------------------------------------------------
        The EPA needs a real plan of action that immediately protects
    people and the environment from these dangerous chemicals:

        1)  The EPA must regulate PFAS under the Clean Water Act requiring
    enforceable effluent limits in NPDES permits and developing ambient
    water quality criteria for PFAS.
        2)  The EPA must regulate PFAS under the Safe Drinking Water Act by
    setting enforceable limits on PFAS in drinking water as soon as
    possible.
        3)  The EPA must regulate all PFAS chemicals as a class, rather
    than individually. Because of the number of different chemicals that
    are PFAS, considering them as individual chemicals will require too
    many resources and too much time. After decades of delay and widespread
    exposure by a large portion of the population, action is urgently
    needed and the fastest way to tackle this issue is to regulate PFAS
    chemicals as a class.
        4)  Due to widespread PFAS contamination of water supplies
    nationwide, the EPA must allocate funds to states and municipalities
    for the testing and any needed treatment of drinking water from
    community water systems and individual household wells. If treatment or
    groundwater remediation is untenable or unsuccessful, support should be
    provided to connect systems and households to alternative water
    supplies. Congress should provide federal funding to ensure that every
    household has access to clean, PFAS-free water.
        5)  To assist communities in assessing the extent of the
    contamination of their water systems, EPA should provide guidance on
    testing for PFAS and investigate the possibility of using a broader
    screen, such as total organic fluorine level.
        6)  The EPA must research water treatment technologies that address
    the removal of the newest generation of PFAS.
        7)  The EPA should provide guidance and resources to test
    individual household water wells for PFAS contamination, and the Agency
    should provide support for nonprofit technical assistance to households
    and small community water systems to test and remove PFAS from drinking
    water.
        8)  The EPA should ban the use of sewage sludge (biosolids) as a
    soil amendment.
        9)  The EPA must more clearly communicate information about health
    risks to the public, particularly regarding new generation PFAS
    chemicals.
        10)  The EPA must do a better job at monitoring these emerging
    contaminants and informing the public of their prevalence and toxicity.
    The EPA collects data for six types of PFAS, including PFOA and PFOS.
    However, there are hundreds of PFAS that are documented in U.S.
    commerce that lack sufficient environmental and health data. Emerging
    PFAS contaminants like GenX and others, used to replace legacy
    chemicals, have growing, but still relatively little, data on their
    prevalence in the environment and their toxicity.
        11)  The EPA should designate PFAS as Hazardous Substances under
    CERCLA.
        12)  The EPA should finish the recommendations for contaminated
    sites, including providing guidance on water treatment technologies.
        13)  The EPA should provide support for communities dealing with
    contaminated sites, including establishing biomonitoring and medical
    monitoring programs, as well as education for medical professionals in
    impacted communities.
        14)  The EPA should expand its PFOA Stewardship Program to work
    toward the complete elimination of all new manufacturing and import of
    all types of PFAS chemicals, including newer generation, shorter-chain
    compounds, to prevent further contamination.

        The American people have been exposed to these toxic chemicals for
    decades without any safeguards. It's beyond time to start the work to
    address this crisis. Our country deserves an urgent and comprehensive
    response to this crisis.

        Mrs. Napolitano. Thank you very much for your very moving
    testimony, and it was really informative and educational, and
    hopefully, we will continue to take action on that. Thank you
    very much.
        Next, we have Ms. Pam Nixon. You may proceed.
        Ms. Nixon. Yes. Thank you for allowing me the time to
    testify today.
        I am president of the nonprofit organization People
    Concerned About Chemical Safety, also known as PCACS, out of
    Charleston, West Virginia. We are an affiliate of Environmental
    Justice Health Alliance for Chemical Policy Reform, also known
    as EJHA.
        On January 9, 2014, there was a major chemical spill into
    the Elk River from a tank farm located along the Elk River in
    Charleston, West Virginia. Ten thousand gallons of crude MCHM
    mixed with PPH were released into the river, only 1\1/2\ miles
    upstream of our public drinking water supply intake. Our
    Governor and public officials called for a do-not-use order.
    This meant that approximately 300,000 residents in 9 counties
    could only use our tap water to flush our toilets. Nearly 600
    people ended up visiting emergency rooms complaining of
    symptoms related to the spill, and 13 were hospitalized.
    Schools and businesses were closed. Noncritical surgeries were
    canceled, and our legislators had to temporarily adjourn.
    Businesses in the area lost at least $61 million during the
    first month.
        The most vulnerable were the low-income residents, the
    elderly, and the people of color who did not own vehicles. They
    had the difficulty of trying to get to the temporary water
    stations, to carry their bottles with them sometimes, and then
    they had to carry the heavy bottles of water back home to be
    able to take care of their whole family.
        When the spill occurred, West Virginia did not have spill
    prevention regulations for aboveground storage tanks storing
    hazardous chemicals and neither did, nor does, the EPA.
        After reconvening in 2014, our legislators wrote in and
    passed the comprehensive AST bill, Aboveground Storage Tank
    bill, which Governor Tomblin signed into law. But within 3
    years, those provisions have been amended and weakened twice.
    Congress passed the Clean Water Act in 1972, which directed the
    President to issue spill prevention regulations for facilities
    that stored oil and hazardous substances. President Nixon
    delegated the responsibility of that section of the Clean Water
    Act to the EPA. The EPA quickly issued spill prevention
    regulations for oil. But despite promising a spill prevention
    rule that covered all AST under their jurisdiction, the EPA
    never finalized hazardous substance spill laws.
        In 1982, Congress created a Federal program regulating
    underground storage tanks that contained petroleum and
    hazardous chemicals. Between 1984 and 2015, Congress passed
    five actions to improve and strengthen requirements for the
    underground storage tanks and even created a trust fund for
    cleaning up leaks.
        Forty years later, in 2015, EJHA and PCACS, my
    organization, and the Natural Resources Defense Council filed a
    lawsuit against EPA over the failure to issue hazardous
    substance spill prevention regulations for aboveground storage
    tanks. In February of 2016, EPA agreed in a consent decree to
    develop the spill prevention rule, accept comments, and publish
    the final rule by the summer of 2019.
        In June of 2018, EPA Administrator Pruitt signed a proposal
    to take no action by pointing to existing regulations that
    provide only limited regulatory protections. On August 22nd of
    this year, Administrator Wheeler signed the final take-no-
    action rule, and it was published in the Federal Register on
    September 3rd.
        Residents in many States lack any spill prevention laws,
    remaining as vulnerable as we were in 2014. Without a
    comprehensive rule, EPA continues to put the health and safety
    of millions of American citizens in danger. The country needs a
    robust Federal AST, or aboveground storage tank, spill
    prevention program to protect our waterways.
        We need regulations to minimize tank leaks and all ASTs
    containing oil products and hazardous substances and to protect
    our drinking water sources. We need a trust fund to clean up
    AST leaks and spills. We need regulations that will ensure that
    the design and construction materials and secondary containment
    systems meet the established engineering standards. We need
    leak detection and corrosion systems for aboveground storage
    tanks. We need transparent third audits. We need the public to
    have the right to know and access to information about the
    hazardous chemicals and aboveground storage tanks where they
    live, work, and play.
        One more. I am sorry.
        We also need robust notification to our public and to
    public drinking water systems in a timely manner when a spill
    does occur.
        And if EPA continues to ignore providing rules for
    aboveground storage tanks, we hope that Congress will step up
    and again require them to do so.
        [Ms. Nixon's prepared statement follows:]

     Prepared Statement of Pamela Nixon, President, People Concerned About
                                Chemical Safety
        Good morning. My name is Pamela Nixon. Thank you for allowing me
    time to testify on the EPA's No-Action decision on the Hazardous
    Substance Spill Prevention Rule for aboveground storage tanks. I am
    representing the organization People Concerned About Chemical Safety,
    which is an affiliate of the Environmental Justice Health Alliance for
    Chemical Policy Reform.
        On January 9, 2014, there was a major chemical spill at the former
    Freedom Industries tank farm located on the banks of the Elk River in
    Charleston, West Virginia. Ten thousand gallons of crude MCHM (4-
    methylcyclo-hexanemethanol) mixed with PPH (primarily dipropylene
    glycol phenyl ether and propylene glycol phenyl ether) were released
    into the river only 1\1/2\ miles upstream of our public drinking water
    system intake.
        The governor and public health officials called a Do Not Use order
    for our drinking water supply. Approximately 300,000 residents in nine
    counties were advised not to use tap water for drinking, cooking,
    showers, washing dishes, or washing clothes. Nearly 600 people visited
    emergency rooms complaining of symptoms related to the spill, and 13
    were hospitalized. A few days after lifting the Do Not Use order, the
    West Virginia Bureau for Public Health announced that pregnant women
    should continue to drink bottled water, which caused confusion.
        Schools, businesses, and hotels were closed, non-critical surgeries
    were canceled, patients were transferred to other hospitals for
    surgeries, and the 2014 West Virginia Legislative Session had to
    temporarily adjourn because of the chemical spill. Businesses in the
    area lost at least $61 million dollars during the first month because
    of this disaster. (1)
        Low-income residents and the elderly were the most vulnerable and
    negatively impacted. Bottled water stations were located on parking
    lots that could accommodate the large trucks. If a household didn't
    have a vehicle, they had to rely on public transportation (bus), ask
    neighbors or family members to take them to get water, or walk. If they
    walked or rode a bus, they had to carry the heavy bottles of water back
    home to their families. Unless you have been through a disaster like
    this, you tend to take for granted just how dependent we are on water.
    To this day I continue to buy bottled water for drinking and cooking.
        At the time of the spill, West Virginia did not have spill-
    prevention regulations for aboveground storage tanks (ASTs) storing
    hazardous chemicals and neither did, nor does, the U.S. EPA.
        When the 2014 West Virginia legislature reconvened, they wrote and
    passed Senate Bill 373, a comprehensive AST bill, which the governor
    signed into law. But, under industry pressure, those provisions have
    been amended, and weakened, twice.
        When Congress passed the Federal Clean Water Act in 1972, it
    directed the President to issue spill-prevention regulations for
    facilities that store oil and hazardous substances, like ASTs. (2)
    President Nixon delegated that responsibility under Clean Water Act
    section 311(j)(1)(C) to the EPA. (3) The EPA quickly issued spill-
    prevention regulations for oil. (4) And in 1978, the EPA proposed
    spill-prevention rules for hazardous substances like ammonia, benzene,
    PCBs, and hydrochloric acid at certain industrial facilities. (5) But
    despite promising a spill rule covering all ASTs under EPA jurisdiction
    ``in the near future,'' the EPA never finalized any hazardous substance
    spill rule for ASTs.
        In 1982, Congress created a federal program to regulate underground
    storage tanks (USTs) containing petroleum and hazardous chemicals to
    minimize tank leaks. Congress directed the EPA to establish operating
    requirements and technical standards for tank design and installation,
    leak detection, spill and overfill control, corrective action, and tank
    closure. Between 1984 and 2015 there have been five Congressional
    actions to improve and strengthen requirement for UST owners as well as
    create a trust fund for cleaning up leaks. (6)
        In an effort to ensure similar requirements and standards are in
    place for ASTs, the Environmental Justice Health Alliance for Chemical
    Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS),
    and Natural Resources Defense Council (NRDC) filed suit against the EPA
    in 2015 over its failure to issue hazardous substance spill-prevention
    regulations for ASTs, as Congress had required over 40 years before.
    (7) In February 2016, EPA agreed in a Consent Decree to develop a
    proposed hazardous substance spill-prevention rule, accept comments,
    and publish the final rule by this summer. (8)
        In June 2018, EPA Administrator Scott Pruitt signed a proposal to
    take no action to prevent hazardous substance spills from ASTs. He did
    so despite the Clean Water Act's clear command that the EPA ``shall
    issue regulations'' and EPA's own finding that industry self-reports
    nearly 1000 hazardous substance spills each year. To justify his
    proposal, Administrator Pruitt pointed to existing regulations that
    provide only limited protections for some types of hazardous substances
    at some subset of ASTs at chemical facilities. (9)
        Despite many comments identifying the flaws in EPA's analysis and
    the holes in existing regulations, (10) Administrator Wheeler signed
    the final do-nothing rule on August 22 of this year. It was published
    in the Federal Register on September 3. (11)
        Many states across the country lack any spill prevention laws for
    ASTs. Residents in those states remain as vulnerable today as we West
    Virginians were on January 9, 2014. It is imperative that EPA develop
    and implement regulations directly designed to prevent spills of
    hazardous substances, as Congress mandated over 45 years ago. By not
    finalizing a comprehensive rule, EPA is continuing to put the health
    and safety of millions of U.S. residents in potentially dangerous
    situations.
        A robust federal spill-prevention program for aboveground chemical
    tanks should do the following:

        1.  Regulate ASTs containing petroleum and hazardous substances to
    minimize tank leaks and protect drinking water sources supplied by
    surface and groundwater;
        2.  Create a trust fund to clean up AST leaks, similar to the fund
    for USTs;
        3.  Develop regulations for ASTs that will ensure the designs,
    construction materials, and secondary containment systems meet
    established engineering standards;
        4.  Require leak and corrosion detection systems for ASTs;
        5.  Require transparent third-party audits;
        6.  Ensure the public has the right to know and access to
    information about the hazardous chemicals in ASTs near where they live,
    work, and recreate; and
        7.  Provide robust notification to the public and public drinking
    water systems in a timely manner when a spill does occur. (12)

        If EPA continues to ignore its duty to issue these necessary
    regulations, Congress should step in and again require them to do so.
        Thank you for considering my testimony.
                                   end notes
        (1)  Lessons from the Elk River Spill--Environmental Health
    Perspective. https://ehp.niehs.nih.gov/doi/pdf/10.1289/ehp.122-A214.
        (2)  Pub. L. No. 92-500,  311(j)(10), 86 Stat. 816, 868 (codified
    at 33 U.S.C.  1321(j)(1)).
        (3)  Executive Order No. 11735,  1(4), 38 Federal Register 21243
    (Aug. 7, 1973).
        (4)  Oil Pollution Prevention, Non-transportation Related Onshore
    and Offshore Facilities, 38 Fed. Reg. 34,164, 34,164 (Dec. 11, 1973);
    see also 40 C.F.R. part 112.
        (5)  Hazardous Substances Pollution Prevention for Facilities
    subject to Permitting Requirement, 43 Fed. Reg. 39,276 (Sept. 1, 1978).
        (6)  EPA Underground Storage Tanks (USTs). How have Congress and
    EPA responded to concerns about USTs? https://www.epa.gov/ust/learn-
    about-underground-storage-tanks-usts#how.
        (7)  Compl., Envtl. Justice Health All. for Chemical Policy Reform
    v. EPA, 15-cv-5705 (SAS) (filed S.D.N.Y. July 21, 2015).
        (8)  Consent Decree, Envtl. Justice Health All. for Chemical Policy
    Reform v. EPA, 15-cv-5705 (SAS) (entered S.D.N.Y. Feb. 16, 2016),
    available at https://www.documentcloud.org/documents/2714720-2-16-16-
    Haz-Mat-Consent-Decree.html.
        (9)  Clean Water Act Hazardous Substances Spill Prevention.
    Proposed Action, 83 Fed. Reg. 29,499 (June 25, 2018), available at
    https://www.federalregister.gov/documents/2018/06/25/2018-13470/clean-
    water-act-hazardous-substances-spill-prevention.
        (10)  E.g., Comments of Environmental Justice Health Alliance et
    al. (Aug. 24, 2018), available at https://www.regulations.gov/
    document?D=EPA-HQ-OLEM-2018-0024-0184; Comments of the Association of
    Metropolitan Water Agencies (Aug. 23, 2018), available at https://
    www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-0160; Comments of
    the National Association of SARA Title III Program Officials (Sept. 9,
    2018), https://www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-
    0152.
        (11)  Clean Water Act Hazardous Substance Spill Prevention. Final
    Action, 84 Fed. Reg. 46,100 (Sept.3, 2019), available at https://
    www.govinfo.gov/content/pkg/FR-2019-09-03/pdf/2019-18706.pdf.
        (12)  See generally Comments of Environmental Justice Health
    Alliance et al. on Docket ID No. EPA-HQ-OLEM-2018-0024-001 (Aug. 24,
    2018), at 25-33.

        Mrs. Napolitano. Thank you very much for your testimony,
    Ms. Nixon, and truly good testimony.
        Mr. Gisler, you may proceed.
        Mr. Gisler. Thank you, Chairwoman Napolitano, Ranking
    Member Westerman, and members of the subcommittee. I appreciate
    the opportunity to speak to you today.
        My name is Geoff Gisler, and I am an attorney with the
    Southern Environmental Law Center. I lead our organization's
    clean water program. It is in that capacity that I worked on a
    number of issues that are before you today. I have described
    five of those in my testimony and have described them as they
    relate to the Cape Fear River in North Carolina.
        The Cape Fear is North Carolina's largest river system, and
    it provides the drinking water for more than 2.1 million
    people. It faces many challenges. Those include threats created
    by this administration by the proposed changes to the section
    401 certification regulations, by the threat of coal ash
    pollution, the threat caused by sewage blending, the changes to
    the waters of the U.S. definition, and from PFAS contamination.
        It is those last two that I want to talk about today in
    this opening statement, but I am happy to answer questions
    about any of those topics.
        I want to first talk about the waters of the U.S. change
    and the radical proposal put forward by this administration in
    February of this year. I think it is best to do that by looking
    at Fayetteville, North Carolina. It is one of the major cities
    on the Cape Fear and is home to our largest military base in
    Fort Bragg.
        The change in the definition of waters of the U.S. will
    have a significant impact in Fayetteville, North Carolina. It
    will eliminate protections for more than half of the streams
    that are in the immediate vicinity of Fayetteville and more in
    a higher percentage of wetlands. That matters in Fayetteville
    for two reasons.
        First is that Fayetteville gets it drinking water from the
    Cape Fear. So, when the streams and wetlands that flow through
    the Cape Fear are not protected, that drinking water will be
    dirtier and more contaminated. The second reason is that
    Fayetteville has survived two record-setting floods in the last
    3 years from Hurricanes Matthew and Florence.
        We know that the very streams and wetlands that are
    threatened by this administration, those that dry up for part
    of the year, are the ones that have the greatest flood storage
    capacity. They are the ones that protect our community and
    buffer us against storms and flooding. We cannot protect places
    like Fayetteville if we do not protect streams and wetlands.
        If we go just downstream from Fayetteville, we run into
    Chemours Fayetteville Works facility. For nearly four decades,
    Chemours and its predecessor have dumped Gen X and other PFAS
    directly into the Cape Fear at levels that are hundreds of
    times higher than what the State of North Carolina recognizes
    as a safe level. They have not only done that through their
    discharge pipe; they have done it through severe contamination
    of groundwater under the site. Some samples have shown levels
    of PFAS at 46 million parts per trillion. The State standard
    for Gen X--that is for Gen X. And the State standard for Gen X
    or the health advisory level is 140 parts per trillion.
        That groundwater flows into the Cape Fear and combines with
    our discharge from their pipe and flows 55 miles downstream
    where it is taken into the drinking water supply for more than
    200,000 people who live in Pender County, New Hanover County,
    and Brunswick County, North Carolina. Those people have been
    drinking highly contaminated groundwater for decades--drinking
    water for decades from a plant that is more than 80 miles away.
        Unfortunately, this administration has not responded to
    that crisis. The PFAS action plan that has been proposed
    doesn't include any meaningful action that will help the
    communities like Wilmington, like those in Pender and Brunswick
    Counties. It does too little, and it takes too long. If EPA
    were serious about addressing this issue, they could take
    immediate action that would stop PFAS from getting into our
    waterways and not only focus on how we can clean it up after it
    is out in our environment. The Agency has chosen not to do
    that.
        It has also decided that reversing decades of legal
    interpretation of the Clean Water Act, that it is OK for
    Chemours and companies like it to pollute our drinking water so
    long as they pollute the groundwater first and let that flow
    into our drinking water supply; so that is acceptable under the
    Clean Water Act. It is not. It is not allowed, and the statute
    prohibits it. This EPA should as well.
        The Cape Fear is unique in many ways. This story is not
    unique. Many of our rivers across the country face these same
    challenges. And if this administration is successful, these
    stories will end in disaster.
        Thank you for the opportunity to testify today, and I
    welcome your questions. Thank you.
        [Mr. Gisler's prepared statement follows:]

      Prepared Statement of Geoffrey R. Gisler, Senior Attorney, Southern
                            Environmental Law Center
        In the more than forty years since the Clean Water Act passed, we
    have made significant progress in our national effort to rescue our
    rivers from their perilous state in the early 1970s. This
    administration threatens to reverse that progress, having proposed or
    implemented rules and taken policy positions that will substantially
    undermine federal, state, and citizen efforts to protect waters across
    the country.
        As the leader of the Southern Environmental Law Center's Clean
    Water Program, I have had the privilege of working with attorneys
    across our six-state region to educate the public about the actions of
    this administration and to represent communities affected by degraded
    water quality protections. We have submitted comments to the
    Environmental Protection Agency on each phase of its efforts to re-
    write the waters of the United States definition to take protections
    from streams and wetlands, its efforts to increase toxic industrial
    discharges, and its recent proposal to strip states of their authority
    under Section 401 of the Clean Water Act. In each instance, we have
    asked this administration to do more to protect our waters; in each
    instance, it has done more to increase pollution.
        Clean water has been a priority of the Southern Environmental Law
    Center since our founding in 1986. We represent clients from the
    smallest organizations or communities focused on a single watershed to
    national organizations looking to protect our varied water resources.
    In our more than 30 years, we've stood for the unremarkable principle
    that our rivers should be safe places to swim, fish, and get our
    drinking water. We appreciate this committee's efforts uphold that
    principle. Thank you for the opportunity to submit this testimony.
    I. More protection is necessary to achieve the Clean Water Act's
            objective.
        As a nation, we have made progress towards meeting the Act's
    objective to ``restore and maintain the chemical, physical, and
    biological integrity of the Nation's waters.'' \1\ Compared to the
    conditions that prompted its passage, when rivers and streams were
    ``little more than open sewers,'' \2\ we have had some success in most
    places. The massive algae blooms that choked the Great Lakes, killing
    millions of fish and tainting the water supplies of millions,\3\ are
    less frequent. The biologically ``dead'' \4\ Lake Erie has come back to
    life. Then, wetlands were disappearing at an alarming rate--depriving
    coastal areas and river valleys of critically important flood control
    protection and ecological benefits.\5\ Now, we have wetland protections
    and a ``no net loss'' policy that has slowed wetlands destruction while
    restoring many that were previously degraded.
    ---------------------------------------------------------------------------
        \1\  33 U.S.C.  1251(a).
        \2\  S. Rep. No. 111-361, at 1 (2010).
        \3\  Id. (citing 138 CONG. REC. D612 (daily ed. Sept. 22, 1992)
    (Prepared Statement of LaJuana S. Wilcher, Assistant Administrator for
    Water, at EPA, Hearing Before the Committee on Environment and Public
    Works, United States Senate)).
        \4\  S. Rep. No. 111-361, at 1 (2010).
        \5\  Id.
    ---------------------------------------------------------------------------
        That said, we have more work to do. Although we have slowed stream
    and wetland loss and degradation, we have not stopped or reversed it.
    Under existing law, more wetlands and streams are degraded or destroyed
    than are restored or replaced through mitigation.\6\ With that
    destruction, we lose valuable habitat, pollution control, floodwater
    storage, and a host of other ecosystem services provided by those
    streams and wetlands.
    ---------------------------------------------------------------------------
        \6\  See, e.g., 2017-18 Annual Report, N.C. Division of Mitigation
    Services at 7, https://files.nc.gov/ncdeq/Mitigation%20Services/
    Administration/Reports/2017_2018ar/AR-2017-
    2018-FINAL-REPORT.pdf (describing impacts authorized compared to
    mitigation required).
    ---------------------------------------------------------------------------
        Our rivers are still threatened by pollution. Some of that
    pollution is what motivated the passage of the Clean Water Act--more
    than 85 million gallons of raw sewage were spilled into North Carolina
    streams and rivers in the last year.\7\ In addition, coal ash stored in
    leaking, unlined pits continues to taint our waterways with arsenic,
    mercury, lead, and other toxic pollutants. New research is uncovering
    the breadth of pollution from per- and polyfluoroalkyl substances
    (PFAS); dangerous chemicals that persist in the environment,
    bioaccumulate, and are toxic to people. PFAS are just one of many
    chemicals of emerging concern that are slipping through the cracks of
    our regulatory system and into our waters.
    ---------------------------------------------------------------------------
        \7\  SELC analysis of N.C. Department of Environmental Quality
    statewide sanitary sewer overflow data from August 1, 2018 through July
    31, 2019.
    ---------------------------------------------------------------------------
        In its most recent report to Congress, EPA reported that more than
    50 percent of the rivers and streams it assessed are impaired.\8\
    Nearly 80 percent of bays and estuaries assessed are impaired, as are
    91 percent of ocean and near-coastal waters and 100 percent of the
    Great Lakes' open waters.\9\ These areas do not yet meet the Act's goal
    of making waters fishable and swimmable.\10\ They suffer from harmful
    bacteria, nutrient pollution, and sediment overload that suffocate fish
    and other aquatic wildlife.\11\ Based on EPA's own assessment, we are
    far from reaching the objective of the Clean Water Act: ``to restore
    and maintain the chemical, physical, and biological integrity of the
    Nation's waters.'' By all accounts, more protection for clean water is
    necessary if we are to achieve the Clean Water Act's objective.
    ---------------------------------------------------------------------------
        \8\  See EPA, National Summary of State Information: Water Quality
    Assessment and TMDL Information, http://ofmpub.epa.gov/waters10/
    attains_nation_cy.control; EPA, National Water Quality Inventory: 4
    Report to Congress (Aug. 2017).
        \9\  Id.
        \10\  Id.
        \11\  Id.
    ---------------------------------------------------------------------------
        This administration, however, is intent on making that objective
    impossible to reach. This administration has proposed to dramatically
    reduce the reach of the Act by narrowly defining the phrase ``waters of
    the United States'' so that it would eliminate federal jurisdiction
    over millions of acres of wetlands and thousands of miles of streams.
    In addition to gutting federal protections, the agency proposes to
    restrict states' abilities to protect their waters through the issuance
    of 401 certifications, stripping states of an essential tool used to
    ensure that federally approved projects comply with state law. The EPA
    has also threatened to eliminate one of the means that citizens have
    used to protect their drinking water from toxic pollution from
    industrial sites; this spring, the agency reversed decades of agency
    interpretation to conclude that indirect discharges of pollution
    through hydrologically connected groundwater are not covered by the
    Clean Water Act.
        Still, the administration intends to go farther to pollute our
    waters. EPA has postponed requirements to clean up wastewater from
    coal-fired power plants, allowing more toxic pollution to flow into our
    rivers. Soon, the administration is expected to propose allowing sewage
    blending, or the dumping of partially treated sewage in our streams and
    rivers--choosing to make swimmers, anglers, and boaters sick rather
    than investing in essential infrastructure that is necessary to handle
    waste responsibly.
        With each of these attacks on our streams, rivers, and wetlands,
    this administration shifts the burden of cleaning up pollution from
    those who create it to the families and communities downstream--from
    those most responsible and best equipped to control the pollution to
    those most vulnerable to its harms and least able to defend against
    them.
        Although these varied attacks arise separately, their effect on our
    rivers will be significant and cumulative. The Cape Fear River
    exemplifies this problem. The Cape Fear is the largest river basin in
    North Carolina. It drains more than 9,100 square miles as it flows from
    central North Carolina to the Atlantic Ocean near Wilmington. The
    headwaters of the Cape Fear begin in North Carolina's Piedmont region
    and flow into the Deep and Haw Rivers. Those rivers merge into the Cape
    Fear just below Jordan Lake--the drinking water supply for much of the
    Raleigh- Durham-Chapel Hill area. From there, the river flows past
    Fayetteville, the home of Fort Bragg, on to Wilmington and the beaches
    of southeastern North Carolina.
        Five examples from the Cape Fear illustrate the harm from this
    administration's actions:
        1.  Flooding in Fayetteville, North Carolina. In 2016, Fayetteville
    was devastated by a 1-in-500+ year flooding event during Hurricane
    Matthew.\12\ Two years later, flooding from Hurricane Florence
    surpassed the records set by Matthew.\13\ Under the administration's
    proposed replacement for the Clean Water Rule, nearly half of small
    streams in and around Fayetteville could lose protections; wetland
    losses could be even more extreme. Loss of these streams and wetlands
    would expose the city to increased flood risk.
    ---------------------------------------------------------------------------
        \12\  Hurricane Matthew Annual Exceedance Probabilities, National
    Oceanic and Atmospheric Administration (Oct. 18, 2016), https://
    www.nws.noaa.gov/ohd/hdsc/aep_storm_analysis/AEP_
    HurricaneMatthew_October2016.pdf.
        \13\  Flooding: Fayetteville residents flee catastrophic flooding
    as waters rise, Asheville Citizen Times (Sept. 16, 2018), https://
    www.citizen-times.com/story/news/nation/2018/09/16/florence-
    fayetteville-residents-flee-catastrophic-flooding-waters-rise/
    1328023002/.

        2.  Construction and operation impacts from Mountain Valley
    Pipeline-Southgate. The Federal Energy Regulatory Commission recently
    released the draft environmental impact statement for a 70-mile gas
    pipeline that would cross more than 200 streams and wetlands that flow
    into the Haw River, one of the main tributaries to the Cape Fear River.
    The project will require a 401 certification from the state of North
    Carolina before a federal permit approving the project can be issued.
    The administration's recently proposed restrictions on 401
    certifications could significantly limit North Carolina's ability to
    ---------------------------------------------------------------------------
    enforce its state laws during that process.

        3.  PFAS contamination from The Chemours Company--Fayetteville
    Works Facility. In June 2017, residents of southeastern North Carolina
    learned that, for decades, DuPont and The Chemours Company had released
    toxic GenX and other PFAS into the Cape Fear River without disclosing
    it to state regulators or the public. More alarmingly, residents
    learned that their new drinking water treatment plant could not filter
    out the chemicals. The administration has failed to take meaningful
    action respond this crisis or to prevent further PFAS contamination.

        4.  Coal ash contamination from the Sutton Steam Plant. For
    decades, Duke Energy polluted Sutton Lake with coal ash wastewater,
    contaminating the lake, the Cape Fear, and its neighbors' drinking
    water. The utility viewed it as a waste dump and polluted the lake both
    directly from its coal ash lagoons and indirectly through
    hydrologically connected groundwater. While these discharges were
    occurring, the public was told that it was a fishing lake, and the
    state promoted the fishery.

           That would have continued had citizen groups not intervened to
    enforce protection for the lake. EPA has now taken two actions to
    increase pollution from coal plants: it has reversed its longstanding
    position that the Clean Water Act prohibits contaminating streams and
    rivers through hydrologically connected groundwater and postponed
    restrictions on toxic pollutants in coal plant discharges.

        5.  Sewage spills in the Cape Fear watershed. Last year, wastewater
    treatment plants spilled more than 37 million gallons of untreated
    sewage into the river. As with many systems across the country, the
    dozens of wastewater treatment plants in the Cape Fear watershed need
    to be upgraded. The administration's sewage blending proposal would
    make dumping partially treated sewage an accepted practice--threatening
    the health of people who use the Cape Fear and putting off essential
    improvements.
    II. The Clean Water Act of 1972 responded to a crisis.
        The consequences of the EPA's efforts to gut the Clean Water Act
    are best understood through the context that spurred its creation. By
    the late 1960s, the Nation's rivers, lakes, wetlands, and streams
    suffered mightily as a result of industrial pollution, municipal waste,
    and indiscriminate filling.\14\ The Cuyahoga River was so polluted with
    industrial waste, it caught on fire.\15\ Massive algae blooms choked
    the Great Lakes, killing millions of fish and tainting the water
    supplies of millions.\16\ Biologically, Lake Erie was ``dead.'' \17\
    Wetlands were disappearing at an alarming rate, depriving coastal areas
    and river valleys of critically important flood control protection and
    ecological benefits.\18\ Of the estimated 221 million acres of wetlands
    that were originally present in the coterminous states, more than half
    had been lost to dredging, filling, draining, and flooding.\19\
    ---------------------------------------------------------------------------
        \14\  See, e.g., H.R. Rep. No. 92-911, at 1 (1972); S. Rep. No. 92-
    414, at 7 (1971).
        \15\  Id.
        \16\  Id. (citing 138 CONG. REC. D612 (daily ed. Sept. 22, 1992)
    (Prepared Statement of LaJuana S. Wilcher, Assistant Administrator for
    Water, at EPA, Hearing Before the Committee on Environment and Public
    Works, United States Senate)).
        \17\  S. Rep. No. 111-361, at 1 (2010).
        \18\  Id.
        \19\  U.S. Fish & Wildlife Service, Wetlands: Status and Trends of
    Wetlands in the Coterminous United States, Mid-1970s to the Mid-1980s
    (1991).
    ---------------------------------------------------------------------------
        The proverbial race to the bottom was underway, and the public was
    losing. Many of the states tasked with addressing water pollution had
    shirked their responsibility. To remedy the national crisis, Congress
    passed the Federal Water Pollution Control Act Amendments of 1972,
    commonly known as the Clean Water Act. The Act marked a major turning
    point.
        Congress replaced the prior system--``a patchwork of ineffective
    state laws, and the Federal Water Pollution Control Act that dated to
    1948,'' \20\--with comprehensive legislation ``to restore and maintain
    the . . . integrity of the Nation's waters.'' \21\ ``[T]o achieve this
    objective,'' \22\ Congress listed seven broad goals, including
    ``protection and propagation of fish, shellfish, and wildlife,''
    ``recreation in and on the water,'' elimination of ``the discharge of
    toxic pollutants in toxic amounts,'' and ``the control of nonpoint
    sources of pollution.'' \23\ Congress also required the states or
    federal government to adopt water quality standards for all waters
    covered by the Act ``taking into consideration their use and value for
    public water supplies, propagation of fish and wildlife, recreational
    purposes, and agricultural, industrial, and other purposes, and also
    taking into consideration their use and value for navigation.'' \24\
    ---------------------------------------------------------------------------
        \20\  S. Rep. No. 111-361, at 1 (2010).
        \21\  Pub. L. No. 92-500,  101(a), 86 Stat. 816 (1972) (codified
    at 33 U.S.C.  1251(a)).
        \22\  33 U.S.C.  1251(a).
        \23\  Id.  1251(a)(1)-(6).
        \24\  Id.  1313(c).
    ---------------------------------------------------------------------------
    III. The EPA's proposal to exclude streams and wetlands from federal
            protection will harm our rivers, communities, and economy.
        In what would be the biggest rollback in clean water protections in
    the 47 years since the Clean Water Act became law, this administration
    has proposed to redefine ``waters of the United States'' to drastically
    restrict Clean Water Act jurisdiction, particularly over smaller
    streams and wetlands. The administration's own analysis shows that
    mining, energy, and development interests would be the greatest
    beneficiaries of the proposal,\25\ while those downstream would
    suffer.\26\ ``Waters of the United States'' is the jurisdictional
    linchpin for virtually every one of the Act's critical safeguards,
    including the Act's core prohibition established by section 301 against
    the discharge of pollutants without a permit, the requirements
    regarding dredge and fill material in section 404 of the Act, the
    obligation that states develop water quality standards, and several
    other key statutory provisions.\27\
    ---------------------------------------------------------------------------
        \25\  See U.S. Environmental Protection Agency and Department of
    the Army, Economic Analysis for the Proposed Revised Definition of
    ``Waters of the United States'' at 96-97 (Dec. 14, 2018) (quantifying
    permit requirements by industry) (EPA WOTUS Econ. Analysis).
        \26\  Id. at 133.
        \27\  See 33 U.S.C.  1311; see also 43 Op. Att.y Gen. 197, at 200-
    201 (Sept. 5, 1979) (``The term navigable waters . . . is a linchpin of
    the Act. . . . Its definition is not specific to  404, but is included
    among the Act's general provisions.'').
    ---------------------------------------------------------------------------
        In proposing a drastic reduction in federal jurisdiction, the EPA
    and U.S. Army Corps of Engineers diagrammed the numerous negative
    consequences of their action.

    Figure 1: Overview of potential environmental impacts to selected CWA
    programs from proposed changes in CWA jurisdiction for certain
    waters.\28\
    ---------------------------------------------------------------------------
        \28\  EPA WOTUS Econ. Analysis at 133 (Table IV-9).

        Despite these substantial, widespread harms, the agencies continue
    forward with the proposed new definition, frequently relying on the
    hope that previously regulated entities will voluntarily continue more
    protective practices.\29\
    ---------------------------------------------------------------------------
        \29\  See id. at 46, 88, 90, 92, 93, 107, 109, 113, 114, 115, 211
    (relying on voluntary continuation of current requirements to avoid
    harms allowed by the proposal).
    ---------------------------------------------------------------------------
                A. The proposed rule is based on a misreading of case law
                        and legislative history.
        Two fundamental legal errors underlie this rulemaking. First is the
    agencies' dependence on Justice Antonin Scalia's plurality opinion in
    Rapanos v. United States \30\ as controlling--even though the opinion
    was rejected by the majority of the Supreme Court. The agencies treat
    it as binding even though, in the 13 years since Rapanos, no court has
    found Justice Scalia's opinion to control. Instead, Justice Anthony
    Kennedy's opinion sets forth the science-backed analysis that previous
    Supreme Court case law requires. The approach outlined in the proposed
    rule reverses decades of law and agency practice, but lacks any
    meaningful, valid explanation for the agencies' departure.
    ---------------------------------------------------------------------------
        \30\  Rapanos v. United States, 547 U.S. 715 (2006).
    ---------------------------------------------------------------------------
        The second foundational fallacy is the agencies' assertion that
    Congress intended for states to have sole jurisdiction over streams and
    wetlands essential to achieving the Act's objective. That is not so.
    Congress did the opposite. Faced with two competing proposals to define
    the role of federal and state governments in implementing the Act,
    Congress rejected an approach like the one proposed by this
    administration--the abandonment of federal jurisdiction to give states
    exclusive control when it comes to protections for smaller streams and
    wetlands. Instead, Congress carefully defined the role of states by
    giving states the authority to implement sections 402 and 404 of the
    Act if their state programs meet federal minimum requirements, as well
    as empowering states under section 401 of the statute. As our Supreme
    Court has long recognized, when Congress speaks so clearly, ``that is
    the end of the matter; for the court, as well as the agency, must give
    effect to the unambiguously expressed intent of Congress.'' \31\
    ---------------------------------------------------------------------------
        \31\  Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
    U.S. 837, 842-43 (1984).
    ---------------------------------------------------------------------------
        With the Clean Water Act of 1972, Congress replaced the state-led,
    risk-based regulatory scheme that only addressed pollution if it caused
    ``unreasonable harm'' with a framework based on regulating pollution
    before it was discharged.\32\ At the time, Congress knew the states
    could not be relied on to ``develop sufficiently tough regulatory
    controls on water pollution to make real progress on cleaning up the
    nation's rivers and lakes.'' \33\ Because the Clean Water Act of 1972
    was intended as a ``total restructuring,'' \34\ to put the federal
    government in the primary role for implementing the new water pollution
    control system, Congress added section 101(a). ``Section [101](b) was
    trumped by new  [101](a), announcing a national goal to 'restore and
    maintain' the nations waters.'' \35\
    ---------------------------------------------------------------------------
        \32\  N. William Hines, History of the 1972 Clean Water Act: The
    Story Behind the 1972 Act Became the Capstone on a Decade of
    Extraordinary Environmental Reform, JOURNAL OF ENERGY & ENVIRONMENTAL
    LAW 80 (Summer 2013).
        \33\  Id. at 82.
        \34\  See City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981)
    (explaining that explained that the CWA was ``not merely another law
    `touching interstate waters' '' but was ``viewed by Congress as a
    `total restructuring' and `complete rewriting of the existing water
    pollution legislation.' ''); see also id. at 318 (``Congress' intent in
    enacting the [CWA] was clearly to establish an all-encompassing program
    of water pollution regulation.); see also Middlesex Cnty. Sewerage
    Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 22 (1981) (existing
    statutory scheme ``was completely revised'' by the enactment of the
    Clean Water Act).
        \35\  Oliver Houck, Cooperative Federalism, Nutrients, and the
    Clean Water Act: Three Cases Revisited, ENVIRONMENTAL LAW REPORTER, 44
    ELR 10,426, 10,428 (2014), https://www.google.com/
    url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=2ahUKEwi46Ivc9NH
    hAhXJrFkKHe5jBKYQFjABegQIBhAC&url=http%3A%2F%2Fudel.edu%2Finamdar
    %2Fnps2007%2FHouck2014.pdf&usg=AOvVaw1tAf6gLse2StebbO4VgkU_.
    ---------------------------------------------------------------------------
        Still, questions arose regarding the states' role under the new
    act--the same questions that are raised by the EPA and U.S. Army Corps
    of Engineers in the ongoing waters of the United States rulemaking.
    Leading up to the 1977 amendments, the House of Representatives and
    Senate took different approaches to resolving concerns about the role
    of states under the Clean Water Act. The House bill dramatically
    limited federal jurisdiction, leaving states complete discretion as
    this administration has proposed in its waters of the United States
    definition. The administration's proposal mirrors the 1977 House bill.
    Much like the agencies, the House Committee on Public Works and
    Transportation argued that ``[t]he activities addressed by section 404,
    to the extent they occur in waters other than navigable waters . . .
    are more appropriately and more effectively subject to regulation [by]
    the States.'' \36\ To address these concerns, the House defined
    navigable waters to significantly reduce federal jurisdiction.
    ---------------------------------------------------------------------------
        \36\  H.R. 95-139 at 22 (1977).
    ---------------------------------------------------------------------------
        The Senate described the states' role within the statute with more
    specificity. The underlying premise of the Senate's approach was that
    ``the discharge of waste directly into the Nation's waters and oceans
    is permitted . . . only where ecological balance can be assured.'' \37\
    The Senate bill did three things. First, it made clear that ``[t]o
    limit the jurisdiction of the [act] with reference to discharges of the
    pollutants of dredged or fill material would cripple efforts to achieve
    the act's objectives.'' \38\ Second, it added the extensive exclusions
    included in section 404(f).\39\ Third, it adopted an amendment to
    implement the ``stated policy of Public Law 92-500 of `preserving and
    protecting the primary responsibilities and rights of States [to]
    prevent, reduce, and eliminate pollution.' '' \40\ That amendment did
    so by providing ``for assumption of the permit authority by States with
    approved programs for control of discharges for dredged and fill
    material in accord with the criteria and with guidelines comparable to
    those contained in 402(b) and 404(b)(1).'' \41\
    ---------------------------------------------------------------------------
        \37\  S. Rep. 95-370 at 4 (1977).
        \38\  Id. at 75.
        \39\  Id. at 76.
        \40\  Id. at 77.
        \41\  Id.
    ---------------------------------------------------------------------------
        The Senate bill prevailed. In amending the Act, Congress created
    ``a State program . . . which is established under State law and which
    functions in lieu of the Federal program'' as long as the program
    complied with minimum federal standards.\42\ This was Congress's plain
    intent for implementing section 101(b)--an intent that the
    administration's proposal violates.
    ---------------------------------------------------------------------------
        \42\  Id. at 104.
    ---------------------------------------------------------------------------
                B. The loss of federal protections for streams and wetlands
                        would be devastating.
        The importance of those minimum federal standards is magnified in
    the South. Our Streams, rivers, lakes, estuaries, and oceans are
    central to our region's history, culture, and economy. Those resources,
    combined with the South's underfunded state water-quality programs,
    make the region especially vulnerable to the loss of federal clean
    water protections. North Carolina, South Carolina, and Georgia alone
    have approximately 18 million acres of wetlands, many of which are
    pocosins, Carolina bays, cypress domes, or other unique wetland types
    that are only found in the South. These distinct regional wetlands were
    appropriately granted clearer protection by the 2015 Clean Water Rule,
    and are now at risk of destruction under the agencies' short-sighted
    proposal.
        The southeastern United States is a hotspot for vital species of
    plants and animals, containing some of the most species-rich amphibian,
    reptilian, and freshwater fish communities in North America.\43\ Our
    fisheries and recreation industry benefit when small streams and
    wetlands, which are integral for fish and wildlife habitat, are
    protected. In 2011, in the six states where the Southern Environmental
    Law Center works--Virginia, North Carolina, South Carolina, Georgia,
    Alabama, and Tennessee--the U.S. Fish and Wildlife Service reported
    that a total of $19 billion was spent on wildlife recreation, including
    $5.7 billion on fishing; more than 15.9 million people participated in
    recreational activities throughout the six-state region.\44\ The
    Ecological Economics Journal estimates the Clean Water Act has been
    responsible for adding as much as $15.8 billion in economic benefits
    for the Commonwealth of Virginia, alone.\45\ And a host of Virginia
    industries rely on access to clean water--including tourism, which
    employs 350,000 Virginians and generates $18 billion for the
    economy.\46\ In 2016 alone, tourism around our beaches generated nearly
    $8 billion in gross domestic product and over 190,000 jobs.\47\
    Recreational fishermen catch trout in our mountain streams, bass in our
    piedmont lakes and streams, and any number of saltwater fish in our
    extensive estuaries and beaches.\48\ Commercial fishermen fish our
    estuaries and ocean waters, landing more than $300 million worth of
    catch in 2017.\49\ Each of these parts of the southern economy depends
    on clean water.
    ---------------------------------------------------------------------------
        \43\  Clinton N. Jenkins et al., U.S. Protected Lands Mismatch
    Biodiversity Priorities, PROCEEDINGS OF THE NATIONAL ACADEMY OF
    SCIENCES, 5081 (2015); See Letter from K. Moser, SELC, to A. Wheeler,
    EPA (April 15, 2019), Exhibit A: Guinessey et al., A Literature Review:
    The Chemical, Physical and Biological Significance of Geographically
    Isolated Wetlands and Non-Perennial Streams in the Southeast 11, 12, 28
    (Apr. 12, 2019) (Literature Review), https://www.regulations.gov/
    document?D=EPA-HQ-OW-2018-0149-9717 (last visited Sept. 12, 2019).
        \44\  See U.S. Department of the Interior, U.S. Fish and Wildlife
    Service, U.S. Department of Commerce, and U.S. Census Bureau. 2011
    National Survey of Fishing, Hunting, and Wildlife-Associated
    Recreation, 95-97 (Feb. 2014); see also Ex. A, Literature Review at 22.
        \45\  Jim Epstein, Clean Water Is Vital for Success of Virginia
    Business, The Daily Progress, https://www.dailyprogress.com/opinion/
    opinion-column-clean-water-is-vital-
    for-success-of-virginia/article_54a3fad0-71c6-11e4-ab71-
    23593a302e82.html.
        \46\  Id.
        \47\  National Ocean Economics Program, Ocean Economy Data (GA, NC,
    SC, VA) (2016).
        \48\  See Pete Flood, Top 10 Fishing Spots in the Southeast,
    Folding Boat Co. Blog, https://www.foldingboatco.com/blog/2017/4/11/
    top-10-fishing-spots-in-the-southeast (last visited Sept. 11, 2019).
        \49\  See NATIONAL MARINE FISHERIES SERVICE, ANNUAL COMMERCIAL
    LANDINGS STATISTICS (AL, GA, NC, SC, VA) (2017), https://
    www.st.nmfs.noaa.gov/st1/commercial/landings/annual_landings.html (last
    visited Sept. 12, 2019).
    ---------------------------------------------------------------------------
        In addition to the impacts on tourism and industry, the agencies'
    proposal threatens drinking water sources for seven out of ten
    southerners, over 32 million people.\50\
    ---------------------------------------------------------------------------
        \50\  SELC GIS, Population Served by Drinking Water in the
    Southeast--Methodology and SELC GIS Drinking Water Analysis Data
    (collectively, ``SELC GIS Analysis'').
    ---------------------------------------------------------------------------
        In the aftermath of hurricanes Matthew, Irma, Maria, Florence,
    Michael, and Dorian--six major hurricanes that have hit the southeast
    in the last four years--we have never depended more on our wetlands for
    flood control and storm surge protection. With abundant coastlines,
    lakes, marshes, and rivers, our communities and states stand to lose
    the most if industries are allowed to dodge the basic protections that
    keep our water clean and safe from pollution. We depend on consistent
    minimum federal standards to safeguard clean water and protect our
    communities, families and everyday life.
        It is unacceptable and unrealistic to pretend that states will fill
    the gap in protections that the administration proposes to create--
    Southern states simply do not have the resources to protect the waters
    at risk under the agencies' proposal. Our states have some of the
    largest budget shortfalls in the country.\51\ Even when Southern states
    are able to take action, they cannot address water quality issues on
    their own. Virginia regulators, for example, have worked hard to clean
    up the Chesapeake Bay. But without a strong, consistent level of
    nationwide protections for clean water, that effort stands to be
    undone. A patchwork of state laws would not maintain water quality in
    the many tributaries feeding the Chesapeake Bay from multiple states,
    and weaker protections imposed by other states would both unfairly add
    to Virginia's burden and prevent progress in the Bay.
    ---------------------------------------------------------------------------
        \51\  Truth in Accounting, Financial State of the States (September
    2018).
    ---------------------------------------------------------------------------
                C. The Cape Fear Region will be significantly affected by
                        the redefined waters of the United States.
        The Cape Fear River is particularly vulnerable to the
    administration's efforts to drastically reduce federal jurisdiction
    over streams and wetlands. It is the largest watershed in North
    Carolina, draining more than 9,100 square miles,\52\ and is home to
    several larger municipalities (Greensboro, Burlington, Chapel Hill,
    Sanford, Fayetteville, and Wilmington) and many larger rural
    communities (Dunn, Clinton, Warsaw, and Burgaw). Along its 200 miles,
    it travels through 26 of North Carolina's 100 counties. In total, the
    Cape Fear watershed includes approximately 23,100 miles of streams and
    rivers.
    ---------------------------------------------------------------------------
        \52\  N.C. Dept. of Environmental Quality, Cape Fear River Basin,
    https://deq.nc.gov/cape-fear-river-basin (last visited Sept. 11, 2019).
    ---------------------------------------------------------------------------
        Many of those waters are threatened by the EPA's proposal to
    redefine waters of the United States. According to data collected by
    the North Carolina Department of Environmental Quality, 35 to 54
    percent of streams in the Cape Fear watershed are small streams that
    have no tributaries.\53\ Similarly, 20 to 46 percent of streams in the
    watershed do not flow all year.\54\ These are the types of streams that
    not only provide essential ecosystem services, they are most vulnerable
    to being destroyed or polluted under the EPA's proposal. In addition,
    the agency's proposal threatens many wetlands within the Cape Fear
    watershed. The EPA estimates that there are more than four million
    acres of wetlands in North Carolina,\55\ a significant portion of which
    are in the Cape Fear watershed.
    ---------------------------------------------------------------------------
        \53\  See Letter from K. Moser, SELC, to A. Wheeler, EPA (April 15,
    2019), Exhibit B, Appendix 2 at 10 https://www.regulations.gov/
    document?D=EPA-HQ-OW-2018-0149-9717 (last visited Sept. 12, 2019).
        \54\  Id.
        \55\  EPA WOTUS Econ Analysis at 220.
    ---------------------------------------------------------------------------
        The communities along the Cape Fear cannot stand to lose the
    floodwater storage and other ecosystem services provided by these small
    streams and wetlands. From Fayetteville to Wilmington, residents have
    experienced 500- to 1000-year flood events twice in the last three
    years. In 2016, Hurricane Matthew caused record flooding in
    Fayetteville. Less than two years later Hurricane Florence exceeded
    those records in Fayetteville and caused such extensive flooding in the
    Wilmington area that supplies had to be airlifted into the city. The
    communities in this watershed cannot withstand the rampant stream and
    wetland destruction that would occur under EPA's proposal.
    IV. The EPA's proposed 401 certification regulations restrict states'
            ability to protect their waters.
        In re-writing the waters of the United States definition, the
    administration claims to defer to states' ability to protect their
    waters. With EPA's proposed 401 certification rules, it proposes to
    take away the states' best tool for doing so. Section 401 of the Clean
    Water Act ensures that states have a voice in federal decisions that
    affect our rivers, streams, and wetlands. For those activities that
    require a federal permit or license, the state where the project is
    proposed has the opportunity to ensure that the project complies with
    state laws.\56\ On August 22, 2019, EPA proposed a rule that would
    limit states' authority to only those state laws that are part of a
    federally approved program, would force states to make certification
    decisions on compressed timelines even if they do not have adequate
    information, and would grant federal agencies broad authority to reject
    conditions on state-issued certifications that states have determined
    to be essential.\57\
    ---------------------------------------------------------------------------
        \56\  33 U.S.C. 1341(d).
        \57\  Updating Regulations on Water Quality Certification, 84 Fed.
    Reg. 44,080, 44,081-82 (Aug. 22, 2019).
    ---------------------------------------------------------------------------
        The faults in EPA's proposal are plain when looking at a recent
    example: the Atlantic Coast Pipeline's 401 certification issued by the
    state of North Carolina. The application for the certification was
    submitted to the North Carolina Department of Environmental Quality on
    May 9, 2017. That application was woefully inadequate. The Department
    of Environmental Quality made five requests for more information
    between September 14 and December 14, 2017.\58\ According to the state
    agency, that information was ``necessary to continue to process'' the
    application.\59\ Even with the five information requests, the agency
    failed to collect adequate information on trenching methods, long-term
    effects of construction, wetland standards, minimization efforts, or
    restoration plans.\60\
    ---------------------------------------------------------------------------
        \58\  See Letter from J. Poupart, NCDEQ, to L. Hartz, ACP, at 1
    (Sept. 14, 2017), https://deq.nc.gov/news/key-issues/atlantic-coast-
    pipeline (under heading ``Division of Water Resources'') (last visited
    Sept. 11, 2019).
        \59\  Id.
        \60\  See, generally Letter from G. Gisler, SELC, to J. Poupart,
    NCDEQ (Nov. 22, 2017), https://deq.nc.gov/news/key-issues/atlantic-
    coast-pipeline (under heading ``Comments Submitted'') (last visited
    Sept. 11, 2019).
    ---------------------------------------------------------------------------
        Over the objections of many organizations, DEQ issued the
    certification on January 26, 2018.\61\ The certification authorized
    impacts to more than 450 acres of wetlands and nearly 7 miles of
    streams.\62\ The certification also authorized significant impacts to
    riparian buffers that are protected by North Carolina laws designed to
    safeguard the Albemarle-Pamlico and Neuse estuaries from nonpoint
    source nutrient pollution and harmful algal growth.\63\
    ---------------------------------------------------------------------------
        \61\  Letter from L. Culpepper, NCDEQ, to L. Hartz, ACP (Jan. 26,
    2018), https://edocs.deq.nc.gov/WaterResources/
    DocView.aspx?dbid=0&id=623752&page=1&cr=1 (last visited Sept. 11,
    2019).
        \62\  Id. at 3.
        \63\  See id. (describing riparian buffer impacts).
    ---------------------------------------------------------------------------
        The certification includes many conditions related to the project's
    effects on streams and wetlands as well as state laws governing
    nonpoint source pollution and drinking water wells. Two stream
    crossings were eliminated.\64\ Conditions were added to reduce the
    effect of other crossings.\65\ The certification required compliance
    with North Carolina laws related to wildlife, sediment and erosion
    control, and drinking water well protection.\66\
    ---------------------------------------------------------------------------
        \64\  Id. at 4.
        \65\  Id. at 7.
        \66\  Id. at 6-8, 10-13.
    ---------------------------------------------------------------------------
        Had EPA's proposed 401 restrictions been in place, the ACP 401
    certification would have gone down a very different path. First, EPA's
    proposal suggests that state agencies may be limited in how long they
    have to request information, potentially to as little as 60 days, and
    limited in the types of information they can seek through those
    requests.\67\ Second, the proposed rule would prevent DEQ from
    evaluating the full breadth of impacts to water quality--excluding
    important considerations for wildlife, riparian buffers, and well
    owners.\68\ And although inadequate information and no certainty that
    water quality standards will be met should be a sufficient basis for
    denial of a certification, the proposal also gives federal agencies
    significant authority to override a 401 certification denial.\69\
    ---------------------------------------------------------------------------
        \67\  84 Fed. Reg. 44,080, 44,115 (Aug. 22, 2019).
        \68\  See id. at 44,105 (describing limitations on conditions).
        \69\  EPA's proposed rule would, however, give federal agencies
    extensive authority to override a 401 certification denial. 84 Fed.
    Reg. 44,080, 44,110 (Aug. 22, 2019).
    ---------------------------------------------------------------------------
        The ACP is not an isolated instance. DEQ will soon evaluate a 401
    certification for the Mountain Valley Pipeline Southgate project. This
    70-mile pipeline in the Cape Fear River's headwaters would cross more
    than 200 streams or wetlands. DEQ's ability to meet state laws will
    depend on the agency being able to collect adequate information and
    impose conditions that fulfill the state agency's obligations. The
    EPA's 401 proposal would prevent the agency from doing so.
    V. The administration has failed to take meaningful action to address
            existing and future PFAS contamination.
        In the last several years, the list of states with extensive PFAS
    contamination has grown. Perhaps the earliest and most notorious case
    arose at DuPont's, and now Chemours', Washington Works Facility in
    Parkersburg, West Virginia. In Colorado, Peterson Air Force Base has
    been the focus. In Michigan, PFAS have been found in 10 percent of
    drinking water systems.\70\ In Minnesota, 3M contaminated drinking
    water in the Twin Cities.\71\ Drinking water in Vermont was
    contaminated by Saint-Gobain Performance Plastics.\72\ In North
    Carolina, the areas surrounding Wilmington and Fayetteville have been
    the center of attention because of contamination from Chemours'
    Fayetteville Works Facility.\73\
    ---------------------------------------------------------------------------
        \70\  Michigan PFAS Action Response Team, Michigan publishes first
    state study of PFAS in water supplies (Aug. 16, 2019), https://
    www.michigan.gov/som/0,4669,7-192-47796-
    504965--,00.html (last visited Sept. 11, 2019).
        \71\  See, generally Minnesota 3M PFC Settlement website, https://
    3msettlement.state.mn.us/ (describing nature of 3M litigation and
    settlement) (last visited Sept. 11, 2019).
        \72\  Vermont Environmental Division, State Reaches Settlement With
    Saint-Gobain: Company Agrees to Fund Waterline Extensions and Other
    Remediation Measures on Bennington's East Side (April 10, 2019),
    https://ago.vermont.gov/blog/2019/04/10/state-reaches-agreement-with-
    saint-gobain-company-agrees-to-fund-waterline-extensions-and-other-
    remediation-
    measures-on-benningtons-east-side/ (last visited Sept. 11, 2019).
        \73\  Toxin taints CFPUA water supply, Vaughn Hagerty, Wilmington
    Star News (June 7, 2017), https://www.starnewsonline.com/news/20170607/
    toxin-taints-cfpua-drinking-water/1 (last visited Sept. 11, 2019).
    ---------------------------------------------------------------------------
        In early 2019, the Environmental Protection Agency announced its
    ``Per-and Polyfluoroalkyl Substances (PFAS) Action Plan.'' The plan is
    purportedly designed to respond to the ongoing crisis of public
    drinking water contamination with these persistent, toxic, and
    bioaccumulative chemicals, but fails in that task for at least two
    reasons. First, it focuses primarily on only two of the thousands of
    PFAS in existence. Second, it lacks any action that would prevent PFAS
    or other emerging contaminants from being released into the
    environment.
        The primary focus of the potential regulatory aspects of EPA's PFAS
    Plan center on perfluorooctanoic acid (PFOA) and perfluorooctane
    sulfonate (PFOS) \74\--a scope that is too limited to benefit families
    and communities that are often exposed to broad PFAS contamination.
    Sampling data from the Cape Fear Public Utility Authority--a utility
    serving more than 200,000 citizens in and around Wilmington, North
    Carolina--demonstrate why such a limited focus is inadequate. According
    to the utility's 2018 Annual Water Quality Report, sampling has
    detected 21 PFAS in treated drinking water.\75\ Seven of those 21 PFAS,
    on average, have greater concentrations than PFOA or PFOS. Under the
    best-case scenario in EPA's PFAS plan, the agency will do nothing to
    address the threat from 19 of the 21 PFAS in drinking water for more
    than 200,000 people in southeastern North Carolina.
    ---------------------------------------------------------------------------
        \74\  See Environmental Protection Agency, EPA's Per- and
    Polyfluoroalkyl Substances (PFAS) Action Plan at 3 (Feb. 2019), https:/
    /www.epa.gov/pfas/epas-pfas-action-plan (last visited Sept. 11, 2019).
        \75\  Cape Fear Public Utility Authority, 2018 Annual Water Quality
    Report at 14, https://www.cfpua.org/Archive.aspx?ADID=777 (last visited
    Sept. 11, 2019).
    ---------------------------------------------------------------------------
        Much of that contamination comes from The Chemours Company's
    Fayetteville Works Facility, which sits on the Cape Fear River
    approximately 55 miles upstream of the Cape Fear Public Utility
    Authority's drinking water intake. Due to decades of waste
    mismanagement, the Chemours site is thoroughly tainted with PFAS.
    Groundwater seeps flowing into the Cape Fear River have been found to
    be contaminated with at least 20 PFAS that exceed a combined
    concentration of 670,000 parts per trillion (ppt)--several thousand
    times higher than health advisory levels available for any PFAS.\76\
    Action focused solely on PFOA and PFOS, as EPA has proposed in its PFAS
    Plan, would do nothing to clean up Chemours' site.
    ---------------------------------------------------------------------------
        \76\  The Chemours Company, Chemours Submission Pursuant to Consent
    Order Paragraphs 12 and 11.1, Attachment 2: Seeps and Creeks
    Investigation, Figure 4A, https://www.chemours.com/Fayetteville-Works/
    en-us/c3-dimer-acid/compliance-testing/index.html (last visited Sept.
    11, 2019).
    ---------------------------------------------------------------------------
        Chemours is not, however, the only contributor of PFAS pollution to
    the Cape Fear. Samples in the Haw River, one of the major tributaries
    to the Cape Fear, have detected seven PFAS.\77\ Many of those PFAS are
    found in greater concentrations than PFOA or PFOS and are ignored by
    the EPA's PFAS plan.
    ---------------------------------------------------------------------------
        \77\  PFAS shows up in Haw River, Pittsboro water, but gets limited
    local attention, Greg Barnes, North Carolina Health News (July 30,
    2019), https://www.northcarolinahealthnews.org/
    2019/07/30/pfas-shows-up-in-haw-river-pittsboro-water-but-little-local-
    outcry/ (last visited Sept. 11, 2019).
    ---------------------------------------------------------------------------
        EPA's plan suffers an even more fundamental flaw--it fails to
    prevent releases of PFAS into our waters as mandated by the Clean Water
    Act. As made clear during the GenX crisis, state regulators cannot
    implement the Act's pollution control standards if they do not know
    what companies are discharging. North Carolina's Department of
    Environmental Quality did not know Chemours was discharging GenX and
    other PFAS. Yet EPA's PFAS Plan fails to prioritize full disclosure of
    pollutants in industry wastewater.
        Disclosure alone is not enough. EPA must reaffirm the technology-
    forcing elements of the Act. In setting the ambitious goal of
    eliminating all discharges by 1985, Congress made clear that the Act is
    designed to improve pollution controls rather than simply require use
    of commonly available methods. Technology-based effluent limits are the
    ``minimum'' level of pollution control required by the Act.\78\ As the
    agency's regulations make clear in circumstances such as this, where
    there are no effluent limitation guidelines for the pollutants at
    issue, the permitting agency must conduct a case-by-case technology-
    based limit analysis.\79\ As demonstrated in a study conducted at
    Chemours' facility, technology exists to reduce PFAS to very low
    levels.\80\
    ---------------------------------------------------------------------------
        \78\  33 U.S.C.  1311(b).
        \79\  40 C.F.R.  125.3(c)(3).
        \80\  The Chemours Company, Old Outfall 002 GAC Pilot Study Interim
    Results Report at 4-5 (Aug. 5, 2019).
    ---------------------------------------------------------------------------
        EPA could, if it were serious about PFAS contamination, require
    full disclosure of pollutants in industrial discharges, and mandate
    that case-by-case technology limits must be imposed in each NPDES
    permit that authorizes the discharge of PFAS or other emerging
    contaminants. Instead, the agency's PFAS plan will allow PFAS pollution
    to continue as the agency primarily focuses on two of the dozens of
    chemicals that are known to contaminate drinking water in communities
    across the country.
        The cost of that inaction is significant. In response to the GenX
    crisis, the Cape Fear Public Utility Authority and Brunswick County
    have committed to spending more than $140 million to upgrade their
    drinking water treatment plants.\81\ At least six cases have been filed
    against Chemours, initiating litigation that will likely extend for
    years, if not decades. And even though the facility has stopped
    directly discharging its manufacturing wastewater into the Cape Fear,
    PFAS continue to flow into the river through stormwater and
    groundwater.
    ---------------------------------------------------------------------------
        \81\  See Brunswick County commissioners vote to immediately build
    RO plant (May 10, 2018), https://www.brunswickcountync.gov/brunswick-
    county-commissioners-vote-to-immediately-
    construct-ro-plant/ (last visited Sept. 11, 2019); CFPUA Board OK's
    steps to obtain construction bids, funding for long-term solution to
    PFAS (April 10, 2019), https://www.cfpua.org/
    CivicAlerts.aspx?AID=1019&ARC=2084 (last visited Sept. 11, 2019).
    ---------------------------------------------------------------------------
        None of this had to happen. Had Chemours disclosed what was in its
    wastewater, the North Carolina Department of Environmental Quality
    could have imposed pollution control requirements under the Act--
    technology exists to capture PFAS on site. The federal agency's PFAS
    Plan fails to require industry to do so.
    VI. EPA's Interpretative Statement allowing pollution of waters through
            hydrologically connected groundwater puts communities in
            danger.
        For decades, EPA took the position that the Clean Water Act's
    strict prohibition of any discharge of any pollutant to waters of the
    United States without a permit \82\ prevented discharges of pollution
    through hydrologically connected groundwater.\83\ In April, the agency
    reversed course,\84\ creating an exception that is not found anywhere
    in the Act or its legislative history and has been rejected by the
    overwhelming majority of courts.\85\
    ---------------------------------------------------------------------------
        \82\  33 U.S.C.  1311(a).
        \83\  See Upstate Forever v. Kinder Morgan Energy Partners, 887
    F.3d 637, 651 (4th Cir. 2018).
        \84\  Environmental Protection Agency, Interpretive Statement:
    Application of the Clean Water Act National Pollutant Discharge
    Elimination System Program to Releases of Pollutants from a Point
    Source to Groundwater (Apr. 12, 2019), https://www.epa.gov/npdes/
    interpretative-
    statement-releases-pollutants-point-sources-groundwater (last visited
    Sept. 12, 2019).
        \85\  See Hawai'i Wildlife Fund v. County of Maui, 886 F.3d 737,
    746-47 (9th Cir. 2018).
    ---------------------------------------------------------------------------
        The consequence of EPA's newly proposed exception, should it be
    implemented, is clearest with two examples. In recent years, the issue
    has most frequently arisen in situations where coal-fired power plants
    chose to store millions of tons of coal ash containing toxic pollutants
    in leaking, unlined pits next to major rivers. Predictably, the
    groundwater that the ash sits in is contaminated with toxic pollutants
    including arsenic, mercury, and selenium.\86\ Duke Energy, one of the
    largest utilities in the country, chose to use these leaking pits
    despite EPA's warnings in the 1970s that this reckless storage of ash
    risked pollution of groundwater and surface water. As a result of
    citizen groups stepping in where state and federal agencies have failed
    to protect our rivers, energy companies have committed to excavating
    more than 250 millions of tons of coal ash in the Southeast, including
    ash at the Sutton Steam Plant on the Cape Fear River.\87\ EPA's effort
    to insulate Duke Energy and other polluters who contaminate our rivers
    through groundwater would limit future progress in keeping toxic
    pollutants out of our waterways.
    ---------------------------------------------------------------------------
        \86\  See Cape Fear River Watch v. Duke Energy Progress, 25
    F.Supp.3d 798, 802 (E.D.N.C. 2014).
        \87\  See Southern Environmental Law Center, Coal Ash: Protecting
    Our Water and Health from Coal Ash, https://
    www.southernenvironment.org/cases-and-projects/coal-waste (last visited
    Sept. 12, 2019).
    ---------------------------------------------------------------------------
        Chemours' Fayetteville Works Facility is another example that
    demonstrates the potential harm from EPA's reversal. Groundwater at the
    site is severely contaminated due to years of reckless handling of
    PFAS-laden wastewater. Contaminated water has leaked through failing
    wastewater pipes and settling ponds among other sources. As a result,
    the groundwater at the site has been shown to have levels of GenX, one
    of the more prominent PFAS at the facility, of 640,000 parts per
    trillion. That groundwater flows directly into the Cape Fear River
    through seeps that have been found to have GenX concentrations of
    150,000 ppt.\88\ These levels of contamination far exceed North
    Carolina's health advisory limit for GenX of 140 ppt. The groundwater
    contamination is so extensive at Chemours' site that it continues to be
    the primary contributor to PFAS contamination in the intake water for
    several drinking water providers more than 50 miles downstream from the
    site.\89\ The administration's PFAS action plan will not provide relief
    to these and other communities with drinking water tainted by PFAS.
    ---------------------------------------------------------------------------
        \88\  The Chemours Company, Chemours Submission Pursuant to Consent
    Order Paragraphs 12 and 11.1, Attachment 2: Seeps and Creeks
    Investigation, Figure 5B, https://www.chemours.com/Fayetteville-Works/
    en-us/c3-dimer-acid/compliance-testing/index.html (last visited Sept.
    11, 2019).
        \89\  The Chemours Company, Cape Fear PFAS Loading Reduction Plan,
    Attachment 1: Cape Fear River PFAS Loading Model Assessment and
    Paragraph 11.1 Characterization of PFAS at Intakes at 24 (Aug. 26,
    2019), https://www.chemours.com/Fayetteville-Works/en-us/c3-dimer-
    acid/compliance-testing/index.html (last visited Sept. 11, 2019).
    ---------------------------------------------------------------------------
    VII. The administration's plan to allow partially treated sewage to be
            discharged will make an existing crisis worse.
        As a country, we have a wastewater infrastructure problem. Our
    systems are old and failing. Small utilities, and some large utilities,
    cannot afford to install modern collection systems and treatment
    technology. One result of the infrastructure crisis is that wastewater
    treatment plants are often overwhelmed during heavy rains, causing
    untreated sewage to flow into our streams and rivers. Rather than
    address that problem head-on, EPA has indicated that it will propose a
    rule that will allow wastewater treatment plants to discharge partially
    treated sewage during rain events.\90\ Blending, a practice in which
    wastewater treatment plants divert waste streams around secondary
    treatment and discharge partially treated sewage during rain events,
    has the potential to create significant public health risks.
    ---------------------------------------------------------------------------
        \90\  See Public Listening Session; Stakeholder Input on Peak Flows
    Management, 83 Fed. Reg. 44,623, 44,625 (Aug. 31, 2018).
    ---------------------------------------------------------------------------
        The agency has previously recognized that blending is not a
    solution to inadequately sized or maintained systems. ``EPA anticipates
    that, over time, the need to undertake peak wet weather flow diversions
    at POTW treatment plants serving separate sanitary sewer conveyance
    systems can be eliminated from most systems in a variety of ways, such
    as by enhancing storage and treatment capacity and reducing sources of
    peak wet weather flow volume.'' \91\
    ---------------------------------------------------------------------------
        \91\  National Pollutant Discharge Elimination System (NPDES)
    Permit Requirements for Peak Wet Weather Discharges from Publicly Owned
    Treatment Works Treatment Plants Serving Separate Sanitary Sewer
    Collection Systems,70 Fed. Reg. 76,013, 76,015 (Dec. 22, 2005).
    ---------------------------------------------------------------------------
        EPA has also recognized the risk of failing to properly address our
    failing wastewater infrastructure. A 2010 study by EPA contractor Tetra
    Tech found that, during blending, treatment plants are only able to
    remove 71% of Cryptosporidium parasites and 40% to 88% of Giardia
    parasites, while discharging very high levels of fecal coliform and
    Enterococcus bacteria.\92\ Another study found that the risk of people
    being exposed to adenovirus and Giardia when swimming, wading, and
    fishing in waters receiving blended sewage flows were about ten times
    greater than if the waste had received full secondary treatment.\93\
    ---------------------------------------------------------------------------
        \92\  EPA, Draft Summary of Blending Practices and the Discharge of
    Pollutants for Different Blending Scenarios at 9 (2014), https://
    www.epa.gov/sites/production/files/2015-10/documents/
    sso_lit_review_draft.pdf (last visited Sept. 12, 2019).
        \93\  Water Environment Research Foundation, Characterizing the
    Quality of Effluent and Other Contributory Sources During Peak Wet
    Weather Events (2009).
    ---------------------------------------------------------------------------
        Now is the time to deal with our wastewater infrastructure. From
    August 2018 through July 2019, more than 85 million gallons of sewage
    spilled from wastewater treatment plants in North Carolina.\94\ In the
    Cape Fear basin alone, 37 million gallons of untreated sewage were
    released, much of it into waters classified as a public drinking water
    supply.\95\
    ---------------------------------------------------------------------------
        \94\  SELC analysis of N.C. Department of Environmental Quality
    statewide sanitary sewer overflow data from August 1, 2018 through July
    31, 2019.
        \95\  SELC analysis of N.C. Department of Environmental Quality
    Cape Fear basin sanitary sewer overflow data from August 1, 2018
    through July 31, 2019.
    ---------------------------------------------------------------------------
        In the Cape Fear, that sewage combines with runoff from hundreds of
    industrial swine and poultry operations, causing the river to be listed
    as impaired under section 303(d) of the Clean Water Act because it
    cannot support its natural fish and invertebrate community. Approving
    regular discharges of partially treated sewage will only make this
    impairment worse while exposing the thousands of people who swim, fish,
    or boat in the Cape Fear River to unsafe levels of pathogens.
    VIII. The nation cannot achieve the goal of the Clean Water Act if this
            administration's efforts are successful.
        Protecting clean water requires everyone to do their part. The
    Clean Water Act was written to ensure that everyone does, from
    industrial dischargers to nonpoint sources. This approach has had great
    success, though we still have significant work to do if we are to
    achieve the Act's goal of fishable, swimmable waters nationwide. This
    administration's actions will make that goal unattainable. The
    combination of abandoning federal authority, limiting state authority,
    and creating vast loopholes in the Act will strip agencies of the tools
    they need to protect the places we swim, fish, and get our drinking
    water. By shifting the burden of pollution from those who create it to
    families and communities downstream, this administration would take us
    back to the era before the Clean Water Act. I ask this subcommittee to
    defend the Clean Water Act and stand against this administration's
    efforts to dismantle it.

        Mrs. Napolitano. Thank you very much for your testimony. We
    have votes called already, but we are going to go ahead with
    the questioning, and then we will recess for about half an hour
    before we go vote.
        My question to Mr. Kopocis is you talked a lot about maps.
    Based on your experience as the former head of EPA's Office of
    Water under the Obama administration, what challenges are posed
    by Mr. Ross' desire for maps? Are there other tools that the
    EPA has today that the Agency can use to show the waters' core
    protection is lost by the Trump rule?
        Mr. Kopocis. Thank you for that question.
        Yes, the question of developing maps for the Clean Water
    Act jurisdiction goes as far back as there was legislation
    before this committee in the 1980s to do that. What we found
    back then--and things haven't changed--is that, first of all,
    developing national maps of jurisdictional waters would be
    prohibitively expensive. It would also require on-the-ground
    visits by people to make jurisdictional determinations.
        Notwithstanding what Mr. Ross said, it is not going to be
    possible to do satellite images or to use existing data. Most
    jurisdictional determinations are made by somebody going out
    onto the property to find out if it is jurisdictional. So that,
    to make a national map, you would then have to put people on
    the ground onto people's property who may have no interest in
    knowing whether there is a jurisdictional water or not; because
    they are not planning to pollute it or destroy it, they don't
    need a permit.
        So you would require a physical intrusion onto property all
    across the Nation anywhere there might be a water feature
    subject to the Clean Water Act, even to find out if it is not
    jurisdictional under the Clean Water Act. And because most
    people undertake their daily activities without triggering any
    Clean Water Act responsibility, you would be mapping thousands
    of miles of streams and millions of acres of wetlands for no
    particular purpose because nobody plans to do anything with
    them.
        Now, if somebody can come up with a way to do maps, I
    agree. Everybody would love it, but the hurdles are immense.
        Mrs. Napolitano. Thank you. Thank you, Mr. Kopocis.
        Ms. Bellon, in your testimony, you mentioned the Trump
    administration is repealing the State of Washington's water
    quality standards to protect human health from toxins in fish.
    It seems to me the State of Washington knows more about
    protecting the citizens' health than the administration.
        What legal standing does the Trump administration have to
    or by what legal standards can the Trump administration repeal
    the State's previously approved water quality standards? And if
    there is no legal standard for repealing those standards,
    surely they are basing their decision on science. What science
    has the administration presented to repeal the State's water
    quality standards?
        Ms. Bellon. They have no legal standing to repeal
    Washington State's fish consumption rule, otherwise known as
    our Human Health Criteria.
        There are two standards under the Clean Water Act for when
    EPA can reach into a State into a previously adopted rule that
    that State chose, based on the circumstances, the waters, the
    beneficial uses, the population, and in our State, for Treaty
    Tribes to determine that that State rule should be repealed.
    There are two circumstances that they could have done that.
    Neither exists at this time.
        One is that if we ask them to come in and repeal or revise
    based on a set of circumstances, which we have not or, two, if
    they determine essentially that the Clean Water Act is not
    being met, and these are protective standards that are meeting
    the law and the intent of the Clean Water Act.
        So it is such a dichotomy. For me to sit here today and
    hear the issue raised about a State's rights and let's revert
    to State's rights so that we can get States to have a better
    handle and let them look at these things in terms of their
    particular view but then to come in and surgically repeal a
    rule that has been on the books in our State for 3 years that
    we spent 10 years adopting and getting on the table to answer
    and deal with water quality issues by virtue of Washingtonians'
    fish consumption.
        Mrs. Napolitano. Thank you very much for your answer.
        Mr. Westerman.
        Mr. Westerman. Thank you, Chairwoman Napolitano.
        And thank you to the witnesses for your testimony.
        I have got some pictures I would like to show, and we seem
    to get wrapped around the wheel a lot on regulations and what
    they mean, but I want to talk about something that is happening
    in my State that Secretary Keogh may or may not be aware of,
    but what you see here is a photograph of a water irrigation
    system. This is surface water coming right out of the Arkansas
    River. You can see it has got kind of a brown color to it. It
    has got quite a few nutrients in it.
        [Slide.]
        If you don't know the geography, the Arkansas River flows
    into the Mississippi River, which goes into the gulf. So the
    algal blooms and the things we see in the gulf, a lot of that
    is attributed to nutrients flowing downstream.
        I wanted to show this because this shows what the private
    sector is doing, how they are usually way ahead of us. And
    there are a lot of benefits to a surface water irrigation
    system like this. Number one, this is in rice country. If you
    know, it takes a lot of water to grow rice. For years, we have
    pumped water out of the Sparta aquifer to flood those rice
    fields, also to do other row crop irrigation. That aquifer is
    depleting, which it is very pure drinking water. A lot of areas
    rely on that water for drinking. So getting water out of the
    river versus the Sparta is a good thing.
        Also, if we could do something to clean this water up, what
    you see in this picture is the same water.
        [Slide.]
        It has just been through this irrigation district. And
    simply what they do is they use the water over and over. They
    capture the tail water off of one crop. They pump it back into
    the reservoir. They move it down and irrigate another crop. The
    success story of this is it has also been able to cut the
    irrigation costs in half for farmers who are in this water
    irrigation district. It doesn't require Sparta water, and it is
    obviously removing sediments and nutrients out of the water,
    and the only water that you are losing through the irrigation
    loop is a little bit of infiltration and evaporation. So this
    water would end up back in the Arkansas River, flowing
    downstream.
        I show this because one problem that is being faced here is
    that there appears to be considerable opportunities for
    establishing water quality trading programs around the Nation.
    And my question is, why aren't we seeing more trading occurring
    currently if we look at nutrient trading and nutrient offsets?
    What are the main impediments to establishing a successful
    water quality trading program?
        And, Secretary Keogh, I will ask you that first, what you
    see on the State level. Then I will open it up to the other
    panelists.
        Ms. Keogh. Thank you, Congressman.
        Arkansas is committed and has formed a nutrient trading
    rulemaking committee now through the Pollution Control and
    Ecology Commission to advance nutrient trading, as you speak
    to, understanding that that has true benefits potentially for
    nutrient management, both to deal with the Arkansas/Oklahoma
    issue I mentioned in testimony but also as we look at the gulf
    hypoxic zones.
        So we look forward to those advancing. I think the barriers
    at this point have been somewhat at the Federal level, and I
    know that this administration has spent and recently reissued a
    direction to the States on how to implement a watershed
    management system that could invoke or encompass a trading
    regime. So we look forward to working with EPA on that.
        We believe, in today's world, our ag community, as well as
    our industry, understands that a strong economy for them relies
    on effective and strong environment. And, likewise, we believe
    that effective, strong environment leadership is benefited by a
    strong economy. So we look forward to that opportunity to tap
    into those.
        Mr. Westerman. Any other panelists have any expertise in
    this area and would like to make a comment?
        Mr. Kopocis. If I could, Mr. Westerman, the concept of
    trading has been around for quite a while. It has met with
    modest success is how I would characterize it. It is a couple
    of different reasons, often centering around enforceability,
    accountability, and responsibility. We have found that, in some
    instances, the agricultural interest is not interested in being
    part of the regulatory program, even though they may be
    stepping in to take on a responsibility of reducing nutrient
    loads.
        So there needs to be a way to bring people in without them
    having the fear that they are somehow going to become the
    regulated entity, and that has been a difficult hurdle for the
    States and for EPA to overcome.
        A lot of these trades are based on modeling, and there is
    some uncertainty. You can measure what comes out of a treatment
    plant. You can test it and measure it, but you have to model
    for these kinds of trades that use agricultural lands and that
    has not been particularly successful yet either. I think
    conceptually it has a lot of promise. I mean, it is very
    similar to what the air program has for cap and trade.
        I think what you will see as TMDLs come online, there will
    be a financial incentive for those who are regulated point
    sources to participate within nonregulated, nonpoint sources in
    the agricultural sector to reduce the nutrient loadings at a
    lower cost per unit of reduction, but there has to be some
    forcing mechanism, and that accountability has to be figured
    out among the parties.
        And I, really, again, I think it is a good concept, but
    those are the hurdles that I see.
        Mr. Westerman. Thank you. I am way over my time, and I
    think I am going to vote. Are you going to----
        Mr. Delgado. Yes, I have some questions.
        Mr. Westerman. OK.
        Mr. Delgado. You can head out.
        Mr. Westerman. We will return.
        I retract that last statement.
        Mr. Delgado [presiding]. Thank you.
        I will give myself 5 minutes for questioning.
        I want to just focus, Mr. Hickey, on your testimony. You
    came back to common sense, and I think you showed a lot of
    grace in response to Mr. Ross' testimony.
        My takeaway from the testimony was that, despite the fact
    that we know--the science has made it clear--that PFAS can
    cause cancer and can lead to thyroid conditions and autoimmune
    disorders, despite this fact, he appeared and the EPA, at least
    at this point, seems unwilling to at least just go on the
    record and say, ``We will provide an MCL,'' not what the MCL
    will be, but that, despite we know what this toxin can do to
    people, people are losing their lives, we can't even go on
    record and common sense and use our judgment to say, ``Hey, you
    know what? We will land at some point on an MCL.''
        And that to me I find profoundly frustrating and a
    disservice to the public. I like--and I know you had to stop
    your testimony. We can talk about the science, and we can talk
    about the numbers and the parts per trillion and what that all
    means, but I think there is nothing more powerful than hearing
    stories like yours and understanding the impact that it has on
    communities and what the community feels in terms of its
    connection to agencies like the EPA. And you spoke about the
    night-and-day reality that you have experienced, that I imagine
    others in your community have experienced on this critical
    issue.
        So I just want to give you back the floor, and if you would
    like to speak a little bit to what it feels like, what it means
    for you and the community back in Hoosick Falls to have to
    engage at this juncture with all the mounting evidence and
    science with an agency that seems uncommitted to its mission.
        Mr. Hickey. Thank you.
        You know, we have, me and you have had multiple
    conversations about this in the past. And MCL, it really
    honestly seems crazy, right? The number keeps trending lower,
    but it is a carcinogen we are talking about. So how much water
    do you want to give your children that causes cancer? You know,
    it is a crazy question, right, so that we even have to even
    consider giving our children water that causes cancer, you
    know. So zero really should be the MCL with these chemicals.
    There shouldn't be any question about it.
        I think, right now, the debate with PFAS--and you are
    comparing it much to the tobacco industry at this point, these
    chemicals versus tobacco. They are similar, right? Cancer, we
    know they are causing cancer, but the difference is tobacco is
    a consumer's choice. Water is not, and that is the big
    difference that we have.
        And over the time, over the 5\1/2\ years that I have been
    working on this now, I spent a tremendous amount of time
    obviously on it. And I have actually felt guilty at times. Why
    wasn't I involved in this sooner? Why didn't I get involved
    earlier? But all the science that keeps evolving, you are
    having more and more States that are getting involved, and
    there are more contaminations that are being found, and there
    is no science that is saying that this is good for us. None of
    it is evolving into saying that these chemicals are going to be
    positive in the future. There hasn't even been one, right?
        So, you know, and the problem is, is that there are 5,000
    of them. So there is always one on the back burner, and we are
    seeing the smaller chains get through the carbon filtration,
    and that is going to be our problem. So now it is me, as an
    advocate, I am questioning: Did we do the right thing about
    PFOA? Should we have had them stop using it, or should we
    continue to have them use that? Because we don't know what we
    are getting next. At least we have the science on what PFOA
    was. We don't know what is going to happen like in the Gen X
    situation. You know, there is science now that is ruling out,
    but there is a chemical behind Gen X, too.
        So we have these years and years, and we are going to
    continue to fall behind with the next chemical. So you are
    making a deal with the devil, I guess, right? You have to
    choose one or the other because these products are in, these
    chemicals are in everything that we use. We are never going to
    be able to completely eliminate them.
        We need to figure out how to stop them from getting into
    the air, getting into the ground. Why are we not talking about
    the sources they are coming from? We are talking about pulling
    them out of the water after they get there. Why are we not
    concentrating more about how they get there? They came out of
    the stacks in Hoosick Falls. We should have stopped it from
    coming out of the stacks, you know. There are spray booths in
    painting, right, that you prevent the aerosol from getting out
    into the air. Why are we not doing that with these chemicals?
    It is just common sense, I think. We are overcomplicating it,
    and we are causing more years and years of research that we
    don't need, that is already there. It is a frustrating process.
        Mr. Delgado. Well, I appreciate you saying all of that. And
    I think it speaks to the fact that, more than anything, the
    lack of urgency, the lack of prioritization. People can't
    choose, as you so eloquently put it, to drink water. It is the
    lifeline. It is essential to our existence. There is no way
    around that fact. If there is anything the public should be
    afforded is a Government that promotes its welfare, that
    protects it welfare. And we need to draw a line in the sand on
    some of these matters and not make them partisan. Some things
    aren't partisan when it comes to life.
        And so I really appreciate what you said. I appreciate your
    advocacy. And I encourage you, despite the difficulties that
    lie ahead, despite the cynicism that can certainty settle in at
    times, to keep fighting and to know that there are folks here
    that are in this fight with you.
        Thank you.
        I ask unanimous consent that the record of today's hearing
    remain open until such time as our witnesses have provided
    answers to any questions that may be submitted to them in
    writing.
        No objection.
        I ask unanimous consent that the record remain open for 15
    days for any additional comments and information submitted by
    Members or witnesses to be included in the record of today's
    hearing.
        Without objection, so ordered.
        I would like to thank our witnesses again for their
    testimony today. If no other Members have anything to add, the
    committee stands adjourned.
        [Whereupon, at 1:49 p.m., the subcommittee was adjourned.]

                           Submissions for the Record

                                  ----------

      Prepared Statement of Hon. Sam Graves, a Representative in Congress
         from the State of Missouri, and Ranking Member, Committee on
                       Transportation and Infrastructure
        As a sixth-generation farmer, I know firsthand the importance of
    being good stewards of the land and water. Clean and reliable water is
    essential to protecting the public health, growing local economies, and
    conserving the environment.
        To that end, EPA plays an important role in supporting and
    protecting this vital resource, but it should do so in partnership with
    farmers and other stakeholders. This collaboration will yield the best
    results.
        For example, just last week, I was able to speak at an event with
    Administrator Wheeler and Assistant Secretary James on the repeal of
    the Obama WOTUS rule.
        The repeal of the Obama WOTUS rule was welcomed by farmers, small
    business owners, landowners, and many others--not only in my district
    in North Missouri, but all over the country--because of that rule's
    massive federal overreach.
        I am thrilled that this Administration listened to those farmers
    and small businesses about the extreme challenges this rule would have
    imposed and decided to get rid of it. I look forward to learning about
    the other initiatives this Administration is undertaking, in
    partnership with stakeholders, to protect our water resources in a more
    pragmatic way.

     Prepared Statement of Hon. Eddie Bernice Johnson, a Representative in
                        Congress from the State of Texas
        Thank you, Madam Chairwoman.
        It is with great appreciation that I thank the Chairwoman for
    holding this hearing today, as it allows us to hear from an EPA witness
    for the first time about the Clean Water Act since this Administration
    came into office in 2017.
        For two generations we have relied on the EPA to be the Federal
    Agency to protect the public and the environment from the pollution
    that comes with being an industrial society. And it is vitally
    important that EPA keep working to protect public health and improve
    our environment.
        Throughout my career I have fought to ensure that future
    generations have access to clean water. My work on the House Science,
    Space and Technology Committee includes introducing clean water
    research bills to help focus the Federal Government's research efforts
    on clean water, a critical natural resource that we too often take for
    granted.
        Contrary to the spirit of the law and EPA's mission, this
    Administration is attempting to rollback the progress made in
    maintaining clean water by yielding to industry demands in increasing
    permitted levels of pollutants in our water. History has shown that
    low-income communities disproportionately suffer the most with higher
    level of pollutants in their drinking water.
        For instance, a clear definition of what is considered ``waters of
    the U.S.'' is important to protecting public health and the
    environment. This Administration's repeal of the 2015 Clean Water Rule
    and its plans on replacing it with a narrower definition of waters of
    the U.S., would lead to less bodies of waters being protected under the
    Clean Water Act. With fewer bodies of water protected, it could
    endanger sources of clean drinking water for millions of Americans as
    well as wetlands that support hunting and fishing. By allowing certain
    rain-fed or seasonal streams to fall outside the jurisdiction of the
    Clean Water Act, we could potentially adversely impact 117 million
    Americans whose public drinking water supplies rely on these sources.
        Congress' oversight role is critical in finding out what EPA is
    doing and to get a full accounting of their actions. We are entrusted
    by the American people to ensure that EPA is working in a way that is
    beneficial to the public rather than yielding to the political pressure
    of industry polluters.
        I look forward to hearing the testimony from the EPA witness to
    understand why they are undermining the Clean Water Act. I am also
    eager to hear from the other witnesses today to learn how EPA's actions
    are impacting their ability to have clean and safe drinking water.
        Thank you. I yield back.

      Letter of September 16, 2019, from Neil L. Bradley, Executive Vice
    President and Chief Policy Officer, U.S. Chamber of Commerce, Submitted
                     for the Record by Hon. Bruce Westerman
                                                    September 16, 2019.
    Hon. Grace Napolitano,
    Chairwoman,
    Subcommittee on Water Resources and the Environment, U.S. House of
            Representatives, Washington, DC.
    Hon. Bruce Westerman,
    Ranking Member,
    Subcommittee on Water Resources and the Environment, U.S. House of
            Representatives, Washington, DC.

        Dear Chairwoman Napolitano and Ranking Member Westerman:
        The U.S. Chamber of Commerce appreciates the Committee holding the
    hearing, ``The Administration's Priorities and Policy Initiatives Under
    the Clean Water Act.'' The Chamber is committed to proactively working
    with legislators, regulators, and stakeholders alike to ensure that the
    Administration implements and enforces all relevant policies and
    procedures in accordance with Congress's intent when enacting the Clean
    Water Act (``CWA''), as this is a key priority and essential to
    building economic prosperity and growth for our member companies and
    the communities where they operate.
        Today's hearing addresses a number of issues important to the
    business community, and is aligned with the Chamber's Business Task
    Force on Water Policy principles. When it comes to water policy, as
    detailed in the attached document, the Chamber supports increased and
    sustained funding and expanded opportunities for financing, regulatory
    flexibility and efficiency of service, resilience, small communities
    and small business needs, and technology innovation.
        Notably, the Chamber applauds the Environmental Protection Agency
    (``EPA'') and U.S. Army Corps of Engineers for their recent actions to
    repeal the 2015 ``Waters of the United States'' (``WOTUS'') rule and
    recodify the preexisting regulations. The 2015 WOTUS rule significantly
    expanded the definition of navigable waters well beyond what Congress
    intended, creating great uncertainty for states, local governments,
    businesses, and farmers. We look forward to working with those Agencies
    as they promulgate a new rule that properly defines WOTUS in a manner
    that provides certainty and clarity for stakeholders and builds upon
    existing standards to improve water quality.
        The Chamber also supports EPA's recent actions to develop a clear
    and predictable water quality certification process under section 401
    of the CWA that comports with Congressional intent and does not
    unnecessarily delay the permitting process for interstate
    infrastructure projects, as well as its guidance clarifying that
    releases from industrial activities that reach WOTUS via groundwater
    are otherwise not regulated under the CWA's point source program.
        Lastly, the appropriate regulation of per- and polyfluoroalkyl
    substances (``PFAS'') is extremely important to the Chamber and its
    members, and the Chamber supports EPA's ``PFAS Action Plan,'' released
    earlier this year. The PFAS Action Plan is the most comprehensive
    cross-agency plan to address an emerging chemical of concern that EPA
    has ever released and provides the clear roadmap needed to address this
    important issue.
        With that said, it is imperative that any Congressional action
    taken to address the regulation of PFAS does not circumvent existing
    regulatory authorities and regulate PFAS as a single class. EPA must
    retain its traditional authority to assess the array of PFAS and
    ascertain which among them should be regulated through ongoing Agency
    efforts.
            Sincerely,
                                               Neil L. Bradley.

    cc: Members of the Subcommittee on Water Resources and the Environment

      ``Policy Priorities and Proposals Summary,'' Business Task Force on
      Water Policy, U.S. Chamber of Commerce, Submitted for the Record by
                              Hon. Bruce Westerman
                      Business Task Force on Water Policy
                    policy priorities and proposals summary
        Water is among our most precious resources, one that is essential
    to health and human life. Businesses and communities depend on it to
    drive the American economy, and significant investments in water
    infrastructure are needed in the U.S. and around the world. While many
    organizations have worked over the years to advance water
    infrastructure investments, an integrated coalition led by businesses
    and other key water and finance sector partners is required.
        The U.S. Chamber of Commerce launched the Business Task Force on
    Water Policy to catalyze support for water infrastructure investments
    in the U.S. and elevate water in the national policy discussion.
    Business as usual and relying on government funding alone will not
    solve this fundamental challenge.
                                   principles
        Below are policy principles that will meet American businesses'
    water and wastewater infrastructure needs for generations to come and
    make the U.S. a leader in bringing clean water and sanitation to the
    world:

          Increased and sustained funding and expanded
    opportunities for financing--promoting increased federal, state, and
    local investments in infrastructure modernization and mobilizing
    private capital.
          Regulatory flexibility and efficiency of service--
    proposing commonsense, flexible policies to improve the enabling
    environment for businesses to continue creative and innovative
    approaches.
          Resilience--facilitating resilient infrastructure,
    including water and watershed management and flood control, through
    funding and policies to support predisaster mitigation and engaging
    experts and stakeholders.
          Small communities and small business needs--providing
    investments and policy solutions specifically focused on the needs of
    the agricultural sector, small communities, and small businesses,
    including improving access to water and sanitation in rural areas.
          Technology innovation--increasing innovation and its
    adoption by reducing barriers to implementation, promoting effective
    utility management, and helping communities achieve the scale and
    expertise necessary to deploy technology through additional technical
    assistance and cooperative arrangements. This effort also supports
    funding the creation of a National Water Infrastructure Test Bed
    Network (TBN), establishing a national program for collaborating and
    sharing best practices, and promoting exports of water technologies,
    products, and services.

        These principles underscore the task force's interest in the One
    Water approach \1\ to integrate and optimize the use of our finite
    drinking water, wastewater, and stormwater resources to create a more
    resilient water future.
    ---------------------------------------------------------------------------
        \1\ The One Water approach envisions managing all water in an
    integrated, inclusive, and sustainable manner to secure a bright,
    prosperous future for our children, our communities, and our country.
    One Water is a transformative approach to how we view, value, and
    manage water--from local communities to states, regions, and the
    national scale. http://uswateralliance.org/sites/uswateralliance.org/
    files/publications/
    One%20Water%20for%20America%20Policy%20Framework%20Executive%20Summary_0
    .pdf
    ---------------------------------------------------------------------------
                            priorities and proposals
        Following are the business community's 2019 water infrastructure
    and management priorities:

          Provide appropriations to maximize federal water
    infrastructure investments. While AWIA included a solid beginning to
    meet water infrastructure needs nationwide, full funding for the SRFs,
    WIFIA, and the 32 new water management programs is a top priority.
          Expand opportunities for partnerships. Congress should
    harness the authorized, but underutilized WIFIA program and increase
    its size to support more loan guarantees. To leverage the beneficial
    impacts of this program, preference should be given to those projects
    that encompass cooperative arrangements among utilities or that bring
    private investment to complement the financing of the project. Policies
    should encourage cooperative arrangements, including those that will
    more efficiently marshal scarce resources and mobilize private capital.
    Specific steps follow:

            Expand WIFIA and provide associated funding for USACE,
    USBR, and other water-focused agencies as appropriate.
            Help states create appropriate legal frameworks for
    deals to occur and replicate.
            Prioritize regional projects and project bundling for
    SRF and WIFIA funding.
            Provide technical assistance to small and rural
    systems, focusing on developing bankable projects of interest to
    private investors.
            Remove barriers to public-private partnerships (P3s):

              Provide eligibility for private utilities for SRF
    funding.
              Remove constraints on asset sales/leasing, such as
    bond defeasance penalties.
              Offer legislative safe harbor for acquirer of systems
    that are out of compliance with regulations.

          Provide off-site, alternative compliance stormwater
    solutions. EPA should provide flexibility for companies to provide off-
    site stormwater management solutions, including green infrastructure,
    water quality trading, a stormwater bank, and water reuse. Green
    infrastructure should be made an explicit eligible activity under Land
    and Water Conservation Fund programs. Outcomes-based financing should
    be considered to promote private sector investment and leverage federal
    funding in green infrastructure or other relevant solutions.
          Promote water reuse and recycling and remove outmoded
    barriers to its use. EPA should eliminate the classification of
    Advanced Treated Water as ``a discharge of pollutants'' under the Clean
    Water Act and regulate it under the Safe Drinking Water Act.
          Support full funding for the WaterSense program. Congress
    should fund this effort promoting water conservation technologies and
    products and incentivizing consumer adoption.
          Remove barriers to U.S. government collaboration on water
    data and resilience. U.S. government science agencies (e.g., EPA, FEMA,
    NOAA, NSF, USACE, and USGS) should have specific authority to work
    together and share water data and information perhaps modeled after the
    National Drought Resilience Partnership and the new water subcabinet to
    meet their mission requirements.

            The task force also proposes additional legislative or
    administrative authority to ensure that appropriate resilience and
    national security agencies are encouraged to team up to implement
    resilient water infrastructure and establish a framework for
    collaboration and deployment of innovative resilient technologies:

              Develop a water data-sharing platform to improve
    accessibility and usability for federal, regional, state, and local
    decision makers.
              Utilize evidence-based decision making to ensure that
    water solutions account for economic impact.
              Address governance of data collection, quality,
    storage, exchange, analysis, and use, including funding and cost
    recovery options, to clarify data ownership and the responsibilities of
    relevant government agencies.

            Promote the development of cybersecurity technologies
    to protect critical water infrastructure from cyberattacks.
            The task force calls on Congress to establish a federal
    pilot program to enhance the mapping of urban flooding and associated
    property damage, including the potential modeling of the impact of
    extreme weather events and the availability of such mapped data for
    homeowners, businesses, and communities to understand and mitigate the
    risks of increasing urban flooding.

          Support development and funding for a TBN. Congress
    should authorize and fund the creation of a national water
    infrastructure TBN, to promote greater uptake of 21st century water and
    wastewater technologies. The TBN would bring together the broader water
    community (e.g., regulators, operators, and consulting engineers) and
    engage them in piloting and demonstration efforts to raise confidence
    in and verify performance for innovative technologies. The TBN could
    also serve as a national clearinghouse for technology that meets or
    serves as best available technology for meeting regulatory
    requirements.

            Provide $20 million in funding for the National
    Priorities Water Research Grant Program. The task force suggests
    increased funding for this program, with its cost share requirements,
    to address priority drinking water, wastewater, water reuse, and
    stormwater research needs.
            Encourage NIST's Water Quality and Efficiency Research.
    Congress should recommend that NIST support additional research to
    update the current body of decades-old data regarding on-site plumbing
    design. Consideration should be given to gathering and assessing new
    technical information to ensure that systems are designed, installed,
    and operated to maximize water efficiency, water quality, and energy
    efficiency.

          Provide additional flexibility for the environmental
    trade working group to focus on water. The administration should
    utilize the existing ETWG mechanism to promote export opportunities for
    U.S. water technology innovation by boosting U.S. government commercial
    diplomacy to expand the export of U.S. technologies and expertise, such
    as reverse trade missions and engagement with U.S. embassies and
    missions in key markets.

            Open international markets to water-related U.S.
    technologies and approaches. The task force supports funding for the
    Department of Commerce's Market Development Cooperator Program (MDCP).
    It is an important tool in achieving the vision of the U.S. government
    Global Water Strategy, addressing trade barriers, encouraging
    innovation, increasing exports, and ensuring global competitiveness.

          Support funding and expansion of current water and
    wastewater apprenticeship and other workforce development initiatives.
    The SDWA includes several set-asides related to the certification and
    training of water operators. Congress should reinforce that authority
    by tasking EPA and the Department of Labor to fund and expand water-
    focused career paths and apprenticeship programs.
          Encourage the use of effective utility management,
    including full-cost accounting. Consideration should be given to
    proposals for federal funding that include a utility's full cost of
    operation, such as those costs associated with systems leaks, as
    essential first steps in making the cost-benefit case for the
    deployment of new technologies and funding.
          Ensure the equal treatment of water efficiency rebates
    under tax law. Rebates from energy utilities are tax-exempt, but not
    rebates from water utilities. With the rapid growth of water-saving
    programs, millions of Americans face an unexpected tax bill once these
    rebates are reported to the IRS.
          Preserve local control in the design of water and
    wastewater systems. Local utilities and their engineers are best
    situated to determine the design and materials appropriate for their
    needs, with appropriate oversight processes and guidance when needed.
    The ultimate decision on such matters should be left to their
    professional judgment.

        For more information and to join this important effort, contact
    Chuck Chaitovitz, vice president for Environmental Affairs and
    Sustainability.

     Letter of September 16, 2019, from James W. Tobin III, Executive Vice
      President and Chief Lobbyist, Government Affairs and Communications
    Group, National Association of Home Builders, Submitted for the Record
                            by Hon. Bruce Westerman
                                                    September 16, 2019.
    Hon. Grace Napolitano,
    Chairwoman,
    House Subcommittee on Water Resources and Environment, Washington, DC.
    Hon. Bruce Westerman,
    Ranking Member,
    House Subcommittee on Water Resources and Environment, Washington, DC.

        Dear Chairwoman Napolitano and Ranking Member Westerman:
        On behalf of the more than 140,000 members of the National
    Association of Home Builders (NAHB), I am writing to express our
    support for the Administration's commitment to creating a fair and
    balanced Waters of the United States (WOTUS) definition. We are pleased
    that the House Water Resources Subcommittee is taking the time to hold
    a hearing on this and other very important Clean Water Act (CWA)
    issues.
        Our nation's home builders construct neighborhoods, create jobs,
    strengthen economic growth, and help create thriving communities while
    maintaining, protecting, and enhancing our natural resources. Under the
    CWA, home builders must often obtain and comply with section 402 storm
    water and 404 wetland permits to complete their projects. What is most
    important to these compliance efforts is a permitting process that is
    consistent, predictable, timely, and focused on protecting true aquatic
    resources.
        In 2015, the Environmental Protection Agency and the Army Corps
    (the agencies) finalized a regulation to redefine the scope of waters
    protected under the CWA. The agencies added new terms, definitions, and
    interpretations of federal authority over private property that are
    more subjective and provided the agencies with greater discretionary
    latitude to expand their regulatory authority. The 2015 rule fell well
    short of providing the clarity and certainty sought by the regulated
    community. It would increase federal regulatory power over private
    property, lead to increased litigation and permit requirements, and
    lengthy delays for any business trying to comply. It is so convoluted
    that even professional wetland consultants with decades of experience
    would struggle to determine what is jurisdictional. Thankfully, the
    Trump Administration recently repealed this 2015 rule and is working to
    provide a practicable and transparent permitting system rather than
    expanding their authority over private property.
        Meanwhile, the agencies are working on a new Clean Water rule
    which, if finalized, would put in place a WOTUS definition that more
    faithfully implements the CWA, draws clearer jurisdictional lines, and
    preserves states' authority over local land and water use.
        Unlike the 2015 rule, the new proposal recognizes that waters which
    do not fall under the WOTUS definition are nevertheless protected by
    robust state and local laws, as well as numerous other federal statutes
    such as the Safe Drinking Water Act. The new proposal also adheres to
    key principles articulated by the Supreme Court regarding the limits of
    the CWA's reach while exerting federal jurisdiction over features with
    the strongest influence on major downstream waterbodies. This new
    proposal strikes a necessary balance between environmental protection
    and regulatory certainty and will give the public long overdue clarity.
        We commend the subcommittee for providing this opportunity to
    discuss such important issues. We believe that this rule will go a long
    way towards improving the way we do business and making the homes we
    build more affordable. Thank you for giving consideration to our
    thoughts.
            Sincerely,
                                            James W. Tobin III.

    Statement of the American Forest & Paper Association, Submitted for the
                         Record by Hon. Bruce Westerman
        The American Forest & Paper Association (AF&PA) appreciates the
    opportunity to submit this statement for the record for the hearing
    entitled ``The Administration's Priorities and Policy Initiatives Under
    the Clean Water Act.'' AF&PA serves to advance a sustainable U.S. pulp,
    paper, packaging, tissue and wood products manufacturing industry
    through fact-based public policy and marketplace advocacy. AF&PA member
    companies make products essential for everyday life from renewable and
    recyclable resources and are committed to continuous improvement
    through the industry's sustainability initiative--Better Practices,
    Better Planet 2020. The forest products industry accounts for
    approximately four percent of the total U.S. manufacturing GDP,
    manufactures nearly $300 billion in products annually and employs
    approximately 950,000 men and women. The industry meets a payroll of
    approximately $55 billion annually and is among the top 10
    manufacturing sector employers in 45 states.
        AF&PA's sustainability initiative--Better Practices, Better Planet
    2020--comprises one of the most extensive quantifiable sets of
    sustainability goals for a U.S. manufacturing industry and is the
    latest example of our members' proactive commitment to the long-term
    success of our industry, our communities and our environment. We have
    long been responsible stewards of our planet's resources. We are proud
    to report that our members have already achieved the greenhouse gas
    reduction and workplace safety goals. Our member companies have also
    collectively made significant progress in each of the following goals:
    increasing paper recovery for recycling; improving energy efficiency;
    promoting sustainable forestry practices; and reducing water use.
        AF&PA generally supports the actions taken by the Trump
    Administration's EPA Office of Water that we expect to be the subject
    of the hearing. Under this administration, the agency has recognized
    that Cooperative Federalism is the foundation of the Clean Water Act
    (CWA). EPA has reviewed and is in the process of reversing several
    rules issued by the previous administration that did not respect that
    states have the primary responsibility to implement the CWA, or that
    inappropriately expanded federal jurisdiction. Two such rules are
    discussed below.
        We also support EPA's focus on market-based measures to promote
    water quality. For example, EPA recently issued a request for comment
    on its updated water quality trading policy. The agency recognized that
    the previous policy was inflexible and that it was inhibiting potential
    trades. The new policy should allow for more frequent and cost-
    effective trades to occur.
                      human health water quality criteria
        Under the CWA, states have the primary responsibility to develop
    water quality standards. States begin that process with EPA's Human
    Health Water Quality Criteria (HHWQC) but can use other criteria as
    long as they are adequately protective of human health. States also
    have the discretion to set the exposure variables used to calculate the
    HHWQC.
        During the prior Administration, EPA made several changes to its
    HHWQC policy that resulted in unnecessarily stringent HHWQC and imposed
    federal criteria on Washington and Maine when those states failed to
    accede to EPA's policy changes. The agency also threatened to reject
    Idaho's criteria on a similar basis. These federal criteria could cost
    municipal and industrial dischargers billions of dollars without the
    certainty that they can be achieved. Many of these industrial
    facilities provide high-paying manufacturing jobs in rural communities
    that cannot afford to lose them.
        In the last two years, the agency has reconsidered those policies.
    Of most relevance to the Committee hearing, EPA has initiated a
    rulemaking to withdraw the federal rule it imposed on Washington. We
    support EPA completing that rulemaking as expeditiously as possible, so
    that the state standards EPA approved in May of this year become the
    applicable standards for CWA purposes in the state.
                           waters of the u.s. (wotus)
        AF&PA supports EPA's and the Army Corps of Engineers (the Agencies)
    rescission of the 2015 WOTUS Rule. Its provisions were, in various
    respects, beyond the Agencies' statutory authority, inconsistent with
    Supreme Court precedent, and contrary to the goals of the CWA,
    including the Act's goal to ``recognize, preserve, and protect the
    primary responsibilities and rights of States to prevent, reduce, and
    eliminate pollution.'' 33 U.S.C.  1251(b). The Agencies' failure to
    seek input from state and local entities during the development of the
    2015 Rule contributed to the rule's legal flaws and lack of clarity.
        The 2015 Rule improperly reads the word ``navigable'' out of the
    statute, and as more than one court has noted, implicates significant
    constitutional concerns about the appropriate scope of federal
    authority. Furthermore, nothing in the record created during the 2015
    rulemaking process dictated the adoption of such a sweeping definition
    of ``waters of the United States.''
        Accordingly, we support the decision to rescind the 2015 Rule and
    recodify the regulations in place immediately prior so that the Code of
    Federal Regulations accurately reflects the applicable regulations. We
    also look forward to a final ``Step 2'' replacement rule, as we believe
    the Agencies' proposed Step 2 was much more aligned with the
    Constitution, the CWA, and caselaw.
                   per- and polyfluoroalkyl substances (pfas)
        PFAS are a large and diverse class of chemicals with widely varying
    uses and properties. AF&PA is opposed to any legislation or regulation
    that does not distinguish between short and long-chain PFAS, suggesting
    that all short-chain PFAS have similar potential for harm. We oppose
    any legislation or regulation that would 1) require the EPA to either
    directly or indirectly designate all PFAS as hazardous substances under
    the Comprehensive Environmental Response, Compensation, and Liability
    Act (CERCLA) or 2) require the EPA to add all PFAS to the list of toxic
    pollutants regulated by the Clean Water Act and establish effluent and
    pretreatment standards, which could trigger ``back door'' CERCLA
    designations.
        We thank the Committee for their consideration on these important
    matters and stand ready to assist you and offer our expertise as a
    resource as you shape policy on this important issue.
        For more information, please contact: Elizabeth Bartheld, Vice
    President, Government and Industry Affairs, American Forest & Paper
    Association, 1101 K Street, NW Suite 700, Washington, DC 20005.

     Letters from the U.S. Environmental Protection Agency in Response to
       Letters from the Committee on Transportation and Infrastructure,
              Submitted for the Record by Hon. Grace F. Napolitano
      letter 1 from u.s. environmental protection agency, office of water
                                                      November 2, 2017.
    Hon. Peter A. DeFazio,
    U.S. House of Representatives,
    Washington, DC.

        Dear Congressman DeFazio:
        Thank you for your August 18, 2017, letter to the U.S.
    Environmental Protection Agency providing comments on the proposed rule
    published for public comment by the EPA and the Department of the Army.
    The rule proposes to rescind the 2015 Clean Water Rule and re-codify
    the agencies' regulatory text that existed prior to the 2015 regulation
    defining ``waters of the United States'' or WOTUS.
        The agencies' proposed rule initiates the first step in a
    comprehensive, two-step process intended to review and revise the
    definition of ``waters of the United States'' consistent with the
    February 28 2017, Executive Order on ``Restoring the Rule of Law,
    Federalism, and Economic Growth by Reviewing the `Waters of the United
    States' Rule.'' The focus of the step 1 proposal is to withdraw the
    2015 Clean Water Rule and replace it with regulations that the agencies
    have implemented since 1986 and existing guidance. This action will
    reestablish procedures for identifying waters covered by the Clean
    Water Act that have been in place for over 30 years and will provide
    continuity and certainty for regulated entities, the States, agency
    staff, and the public. In a second step, the agencies will pursue
    notice-and-comment rulemaking as part of a substantive reevaluation of
    the definition of ``waters of the United States.''
        We appreciate the comments you provided on the EPA-Army proposed
    rule. We will include your letter in the official docket for the
    proposed rule, identified by Docket ID EPA-HQ-OW-2017-0203 at http://
    www.regulations.gov. We will carefully consider your comments and all
    comments received on the proposed rule when deciding what changes to
    make to the final rule.
        Again, thank you for your letter. If you have further questions,
    please contact me or your staff may contact Denis Borum in the EPA's
    Office of Congressional and Intergovernmental Relations.
            Sincerely,
                                            Michael H. Shapiro,
                                        Acting Assistant Administrator.

      letter 2 from u.s. environmental protection agency, office of water
                                                    September 12, 2018.
    Hon. Peter DeFazio,
    Ranking Member,
    Committee on Transportation and Environment, House of Representatives,
            Washington, DC.

        Dear Congressman DeFazio:
        Thank you for your April 24, 2018, letter inquiring about a March
    30, 2018, revision to an Environmental Protection Agency internal
    delegation regarding Clean Water Act (``CWA'') section 404
    jurisdictional determinations (``JDs''). We appreciate your request for
    clarification and the opportunity to address any confusion on the
    issue.
        As context for the internal delegation modification, the EPA has
    ``the final administrative responsibility for construing the term
    `navigable waters' '' under the CWA for all CWA programs, including
    section 404 (Civiletti Memorandum, 43 Op. Att'y Gen. 197 (1979)). In
    the section 404 context, however, the Army Corps of Engineers
    (``Corps'') is the predominant field presence and has responsibility
    for making most of the JDs under the CWA (approximately 60,000 a year).
        In 1989, the EPA and the Corps outlined how they would address
    questions of jurisdictional scope in the section 404 context where
    ``significant issues or technical difficulties are anticipated or
    exist'' in a Memorandum of Agreement titled ``Determination of
    Geographic Jurisdiction of the Section 404 Program and Application of
    Exemptions Under Section 404(f) of the Clean Water Act'' (``1989
    MOA''). The 1989 MOA established a process for specific instances where
    the EPA, instead of the Corps, would make ``the final determination of
    the geographic jurisdictional scope of waters of the United States for
    purposes of section 404.'' The process involves two steps: (1)
    designation of a ``generic or project-specific situation'' as a special
    case by the EPA and, subsequently, (2) a final determination of the
    geographical jurisdictional scope for the special case by the EPA.
        The special case process has been used only 15 times, with only two
    special cases designated since 2008 (the most-recent special case was
    designated in 2015). As of March 30, 2018, there is one special case
    designated by the EPA awaiting issuance of a final JD. In addition,
    several other cases that may pose ``significant issues or technical
    difficulties'' have been brought to the EPA's attention, and the Agency
    is considering whether to designate one or more of those cases as
    special cases.
        To promote national consistency and increase regulatory certainty
    in the rare instances when a JD poses ``significant issues or technical
    difficulties,'' the Administrator updated the EPA's internal delegation
    of authority regarding special cases on March 30, 2018. Under the
    revised internal delegation, the Administrator's authority to make
    final determinations of geographic jurisdiction for special cases,
    which previously had been delegated to the EPA's Regional
    Administrators, was retained by the Administrator in order to promote
    national consistency and better-utilize the national expertise of the
    EPA's headquarters personnel. That personnel is currently engaged in a
    national rulemaking effort regarding the scope of CWA jurisdiction, a
    topic that remains subject to significant regulatory uncertainty and
    ongoing litigation. The EPA regional offices will continue to be
    responsible for the evaluation and development of special cases in
    coordination with the Administrator's Office and the Office of Water.
    This approach provides a clear process for taking regional variation
    into account while promoting national consistency in the EPA's
    decision-making.
        It is important to note that the remainder of the delegations under
    the section 404 program remained entirely unchanged. For example, the
    Administrator's authority to designate a special case remained
    delegated to the Assistant Administrator for Water, which in turn
    remained redelegated to the Director of the Office of Wetlands, Oceans
    and Watersheds within the Office of Water.
        Again, thank you for your letter. If you have further questions,
    please contact me or your staff may contact Denis Borum in the EPA's
    Office of Congressional and Intergovernmental Relations.
            Sincerely,
                                                 David P. Ross,
                                               Assistant Administrator.

      letter 3 from u.s. environmental protection agency, office of water
                                                     November 20, 2018.
    Hon. Peter DeFazio,
    Ranking Member,
    Committee on Transportation and Infrastructure, U.S. House of
            Representatives, Washington, DC.

        Dear Mr. DeFazio:
        Thank you for your July 19, 2018 letter to the U.S. Environmental
    Protection Agency's (EPA) Acting Administrator Andrew Wheeler regarding
    the EPA's Clean Water Act (CWA) Section 404(c) authority and the Pebble
    gold and copper deposit site in the Bristol Bay region of southwest
    Alaska. Your letter references the EPA's June 2018 Memorandum,
    ``Updating the EPA's Regulations Implementing Clean Water Act section
    404(c)'' and the ongoing review of Pebble Limited Partnership's
    (Pebble's) Section 404 permit application to the U.S. Army Corps of
    Engineers (Corps) to develop a mine at the Pebble deposit site. Acting
    Administrator Wheeler has asked me to respond to you on his behalf.
        The June 2018 Memorandum directs the EPA's Office of Water to
    develop proposed revisions to the Agency's section 404(c) regulations
    that consider multiple changes, including eliminating use of 404(c)
    either before a section 404 permit application has been submitted to
    the Corps or state or after the Corps or state has issued a section 404
    permit. The EPA is now considering next steps, in accordance with this
    Memorandum, to ensure that the Agency is exercising its authority
    consistent with the principles of due process and in a manner which
    provides certainty to the regulated community.
        With regard to the Pebble gold and copper deposit site in the
    Bristol Bay region of southwest Alaska, as part of a May 2017
    settlement agreement resolving outstanding lawsuits between the EPA and
    Pebble, the Agency agreed to initiate a process to propose to withdraw
    the 2014 CWA section 404(c) 2014 Proposed Determination. In the EPA's
    July 19, 2017, notice proposing to withdraw the Proposed Determination,
    the Agency solicited public comment on three reasons to support
    withdrawal:

          First, to provide Pebble with additional time to submit a
    Section 404 permit application to the Corps.;
          Second, to remove any uncertainty, real or perceived,
    about Pebble's ability to submit a permit application and have that
    permit application reviewed.; and
          Third, to allow the factual record regarding any
    forthcoming permit application to develop.

        On January 26, 2018, the EPA issued a notice announcing the
    Agency's decision not to withdraw the Proposed Determination, leaving
    the Determination in place pending consideration of any additional
    information. In suspending the EPA's withdrawal of the Proposed
    Determination, the Agency considered relevant statutory authority,
    applicable regulations, and the input the Agency received as part of
    the tribal and Alaska Native Claims Settlement Act Corporation
    consultations, the more than one million public comments received, as
    well as recent developments, including Pebble's submittal of a section
    404 permit application.
        The EPA remains committed to considering any other information on
    the potential mine's impact to the region's fisheries and natural
    resources. The Corps has initiated the National Environmental
    Protection Policy Act process and begun development of an Environmental
    Impact Statement (EIS) for the Pebble project. The EPA, at the
    invitation of the Corps, has agreed to be a cooperating agency in this
    process and is working with the Corps pursuant to that schedule. In a
    June 29, 2018 letter, the EPA provided comments to the Corps in
    response to the Corps' EIS scoping package. The EPA has also provided
    the Bristol Bay Watershed Assessment to the Corps for their EIS
    process, which is now posted on the project website.\1\
    ---------------------------------------------------------------------------
        \1\ For the EPA's Bristol Bay Watershed Assessment, as provided to
    the Corps, see: https://www.pebbleprojecteis.com/documents/library.
    ---------------------------------------------------------------------------
        Given the significant public interest on this issue, the EPA will
    continue to seek input from all stakeholders as the permitting process
    progresses. Neither the January 2018 decision, nor the previous
    settlement agreement, guarantees or prejudges a particular outcome in
    the permitting process or any particular EPA decision-making under the
    Clean Water Act. Now that Pebble has submitted a permit application,
    under the terms of the May 2017 settlement agreement, the EPA agreed to
    provide Pebble until May 2021, unless a final EIS is issued sooner, to
    advance through the permit review process before the EPA could move to
    the next step in the section 404(c) review process, if such a decision
    is made. The steps the EPA has taken demonstrate the Agency's
    commitment to both the rule of law, fundamental fairness, and upholding
    the EPA's core mission of environmental stewardship. I can assure you
    that this commitment will continue through the remainder of the
    process.
        Again, thank you for your letter. If you have further questions,
    please contact me or your staff may contact Denis Borum of the EPA's
    Office of Congressional and Intergovernmental Relations.
            Sincerely,
                                               D. Lee Forsgren,
                                        Deputy Assistant Administrator.

    cc: Chris Hladick, Regional Administrator, EPA Region 10

    [Editor's note: Also submitted for the record and retained in committee
    files is the same letter addressed to Hon. Tom Carper, Ranking Member,
    Senate Committee on Environment and Public Works.]

         letter 4 from u.s. environmental protection agency, office of
                 congressional and intergovernmental relations
                                                    September 16, 2019.
    Hon. Peter A. DeFazio,
    Chairman,
    Committee on Transportation and Infrastructure, U.S. House of
            Representatives, Washington. DC.

        Dear Chairman DeFazio:
        On behalf of the U.S. Environmental Protection Agency, I am writing
    in response to your letter dated July 29, 2019, to Administrator Andrew
    Wheeler, in which you sought information about the Agency's
    interpretation of Section 401 of the Clean Water Act (CWA).
        On August 8, 2019, Administrator Wheeler signed a proposed rule to
    implement Section 401 of the CWA. The proposed rule, if finalized,
    would increase the transparency and efficiency of the 401 certification
    process and promote the timely review of federal permits while
    continuing to protect the nation's water quality.
        Section 401 of the CWA gives states and authorized tribes the
    authority to assess potential water quality impacts of discharges from
    federally permitted or licensed activities that may affect navigable
    waters within their borders. The EPA's existing certification rules
    have not been updated in nearly 50 years and are inconsistent with the
    text of CWA Section 401, leading to confusion and unnecessary delays
    for federally permitted activities, including infrastructure projects.
        In April 2019, President Trump issued Executive Order 13886,
    ``Promoting Energy Infrastructure and Economic Growth,'' and directed
    the Administration to take appropriate action to promote important
    energy infrastructure. The EPA was directed to first revise guidance on
    the CWA Section 401 certification process and then to propose new rules
    to implement CWA Section 401. The EPA has engaged in formal
    consultation with state, local, and tribal partners, as well as other
    federal agencies, to develop this proposed rule. Under the Executive
    Order, the EPA is directed to finalize this rule by May 2020.
        The Agency considered stakeholder input prior to the initiation of
    and during the formal consultation period, including correspondence
    from states, tribes, and other entities. The Agency engaged in state
    and tribal consultation and accepted pre-proposal recommendations in an
    administrative docket until May 24, 2019. The Agency held two webinars
    for states, tribes, and their associations on April 17, 2019 and May 8,
    2019. The Agency also held two separate webinars for tribes and their
    associations on May 7, 2019 and May 15, 2019. This stakeholder input,
    including documents received prior to the opening of the administrative
    docket and input received at these four webinars, is publicly available
    (https://www.regulations.gov/docket?D=EPA-HQ-OW-2018-0855).
        In addition to this pre-proposal docketed correspondence, the
    Agency received correspondence from states and other entities after the
    close of the pre-proposal administrative docket. We are enclosing this
    correspondence for your review. The Agency has placed information on
    meetings and phone calls with states, tribes, and other entities in the
    docket for the proposed rulemaking signed on August 8, 2019. These
    documents are available in the docket for the proposed rule ``Updating
    Regulations on Water Quality Certification'' (https://
    www.regulations.gov/docket?D=EPA-HQ-OW-2019-0405). The EPA will
    continue to accept public comment on the proposed rule for 60 days
    following the August 22, 2019 publication in the Federal Register,
    which ends on October 21, 2019. The EPA also held half-day state and
    tribal listening sessions on September 4-5, 2019 and a public hearing
    on September 5-6, 2019 in Salt Lake City, Utah. A second series of
    listening sessions for states and tribes is scheduled for September 16,
    2019 in Chicago, Illinois.
        In addition to requesting information concerning the Agency's
    interpretation of CWA Section 401, the Committee's letter requests
    information and data on state certifications over the past 10 years.
    The Agency does not have the requested information because there is no
    national database that contains information from all federal permitting
    agencies. The Agency does not collect information on the number of
    certification requests denied or granted with conditions, project
    types, or the time it takes federal agencies to complete the
    certification process. However, the proposed rulemaking does include
    information on the average annual number and type of permits and
    licenses that require water quality certification. The proposed
    rulemaking specifically solicits information that may be available to
    more fully and accurately evaluate such parameters.
        The Agency provides an in-depth explanation of the statutory basis
    for its proposal for what constitutes ``appropriate state law'' in the
    preamble to the proposed rule ``Updating Regulations on Water Quality
    Certification.'' Additional information can be found on the EPA's
    website (https://www.epa.gov/cwa-401/proposed-rule-updating-
    regulations-water-quality-certification-0).
        The EPA recognizes the importance of the Committee's need to obtain
    information necessary to perform its legitimate oversight functions and
    is committed to continuing to work with your staff on how best to
    accommodate the Committee's interests. If you have further questions,
    you may contact me, or your staff may contact Duncan Braid in the EPA's
    Office of Congressional and Intergovernmental Relations.
            Sincerely,
                                          Joseph A. Brazauskas,
                                        Acting Associate Administrator.

    Enclosure

    cc: The Honorable Sam Graves, Ranking Member

         letter 5 from u.s. environmental protection agency, office of
                 congressional and intergovernmental relations
                                                    September 16, 2019.
    Hon. Peter A. DeFazio,
    Chairman,
    Committee on Transportation and Infrastructure, U.S. House of
            Representatives, Washington. DC.

        Dear Chairman DeFazio:
        On behalf of the U.S. Environmental Protection Agency, I am writing
    in response to your letter dated July 29, 2019, to Administrator Andrew
    Wheeler, in which you sought information about the Agency's
    Interpretive Statement clarifying the application of the Clean Water
    Act (CWA) permitting requirements to releases of pollutants to
    groundwater.
        On April 15, 2019, the EPA issued an ``Interpretive Statement on
    Application of the Clean Water Act National Pollutant Discharge
    Elimination System Program to Releases of Pollutants From a Point
    Source to Groundwater,'' detailing the Agency's interpretation of the
    CWA 's National Pollutant Discharge System (NPDES) permit program's
    applicability to releases of pollutants from a point source to
    groundwater. The EPA concluded that the CWA is best read as excluding
    all releases of pollutants from a point source to groundwater from
    NPDES program coverage and liability under Section 301 of the CWA,
    regardless of a hydrologic connection between the groundwater and a
    jurisdictional surface water. This Interpretive Statement is a result
    of a comprehensive analysis of the CWA's text, structure, legislative
    history, and judicial decisions, and marks the first instance in which
    the Agency has issued guidance focused exclusively on whether NPDES
    permits are required for releases of pollutants to groundwater that
    reach jurisdictional surface water.
        The Agency's mixed record of prior statements, a split in the
    federal circuit courts, and recent judicial decisions resulted in a
    confusing legal landscape in which permitting and enforcement agencies,
    potentially regulated parties, and the public lacked clarity on when
    the NPDES permitting requirement set forth in sections 301 and 402 of
    the CWA may be triggered by releases of pollutants to groundwater. The
    absence of a dedicated EPA statement on the best reading of the CWA has
    added to confusion in the courts and uncertainty for EPA regional
    offices and states implementing the NPDES program, regulated entities,
    and the public. Through the Interpretive Statement. the EPA has
    provided clear guidance that balances the statute, case law, and the
    need for clarity on the scope of the CWA NPDES coverage.
        In February 2018, the Agency sought public comment on whether the
    NPDES permit program applies to releases of pollutants to groundwater
    and whether the Agency should revise or clarify its position on this
    issue. Informed by those comments and based on a holistic analysis of
    the statute, its text, structure, and legislative history, the Agency
    concluded that the best, if not the only, reading of the CWA is that
    Congress intentionally chose to exclude all releases of pollutants to
    groundwater from the NPDES program, even where pollutants subsequently
    travel to jurisdictional surface waters via groundwater. As the Agency
    detailed in the Interpretive Statement, Congress purposely structured
    the CWA to give states the responsibility to regulate such releases
    under state authorities. Further, other federal statutes contain
    explicit provisions that address the release of pollutants into
    groundwater and provide federal authority to address those releases.
    Thus in accordance with Congress's intent, state and other federal
    authority is collectively available to provide protection for ground
    and surface water quality in those instances where direct CWA
    permitting authority is not applicable.
        The Committee's requests related to state- or EPA-issued CWA
    permits are extensive and would require the EPA to generate information
    and records that do not already exist or are not currently in our
    possession. Additionally, some of the information requested would
    require extensive collaboration across the Agency, states, and other
    permitting authorities and the EPA is uncertain whether these sources
    could clearly identify the requested information. Due to the nature of
    obtaining coverage under a general NPDES permit, the EPA has only
    specific facility information as required to be submitted in a Notice
    of Intent for Coverage. While the EPA does have information from
    specific facilities in the applications submitted for individual NPDES
    permits, the application forms are primarily focused on information
    about the effluent. Additionally, the Agency expects that the same
    aforementioned considerations noted for EPA-issued permits would apply
    to most state programs regarding information about general and
    individual NPDES permits and discharges via direct hydrologic
    connection.
        Regarding existing pollutant releases not covered by a state- or
    EPA-issued CWA permits or the variety of types of releases described in
    the Committee's letter, similar issues exist as described above--the
    requests are extensive and would require the EPA to generate
    information and records that do not already exist. For example, as it
    pertains to non-NPDES permit actions, extensive collaboration across
    the Agency, states, and other permitting authorities would be required,
    and the EPA is uncertain whether these sources could clearly identify
    the requested information.
        The EPA recognizes the importance of the Committee's need to obtain
    information necessary to perform its legitimate oversight functions and
    is committed to continuing to work with your staff on how best to
    accommodate the Committee's interests. If you have further questions,
    you may contact me, or your staff may contact Duncan Braid in the EPA's
    Office of Congressional and Intergovernmental Relations.
            Sincerely,
                                          Joseph A. Brazauskas,
                                        Acting Associate Administrator.

    cc: The Honorable Sam Graves, Ranking Member

         letter 6 from u.s. environmental protection agency, office of
                 congressional and intergovernmental relations
                                                    September 16, 2019.
    Hon. Peter A. DeFazio,
    Chairman,
    Committee on Transportation and Infrastructure, U.S. House of
            Representatives, Washington. DC.

        Dear Chairman DeFazio:
        On behalf of the U.S. Environmental Protection Agency, I am writing
    in response to your letter dated July 29, 2019, to Administrator Andrew
    Wheeler, in which you sought information about the current rulemaking
    addressing the management and treatment of peak flows at publicly owned
    treatment works (POTWs) serving separate sanitary sewer systems.
        In April 2018, the Agency announced a new rulemaking effort aimed
    at clarifying issues associated with the management and treatment of
    peak flows during wet weather events at POTWs with separate sanitary
    sewer systems. In this rulemaking, the EPA will be considering changes
    to the National Pollutant Discharge Elimination System (NPDES)
    regulations to establish a permitting framework for evaluating
    management options to provide POTWs serving separate sanitary sewer
    systems flexibility in how they manage and treat peak flows. The EPA
    has not yet issued a proposal, but any proposed changes would seek to
    provide a consistent national approach to permitting peak flows that
    ensures all applicable permit discharge limitations and requirements
    are met during peak flow events. At the same time, such an approach
    should allow for both efficient treatment plant operation and
    protection of the public from potential adverse health effects of
    inadequately treated wastewater.
        The Agency recognizes the significant expertise that exists among
    states, tribes, POTWs and municipal officials, private sector
    engineering firms, public health agencies, and the public related to
    these issues. The EPA has undertaken an extensive stakeholder
    engagement effort to encourage individual input for developing a draft
    rule that will support a consistent approach to permitting, a1low for
    innovative flexibility, and protect human health and the environment.
        In advance of issuing any proposed changes, the EPA solicited
    public comment from August 31, 2018 to October 31, 2018 and held public
    listening sessions on October 16, October 24, and October 30, 2018. The
    EPA will continue to consider all these perspectives when developing a
    proposed rule to address permitting requirements for the management of
    peak flows at POTWs with separate sanitary sewer systems. Enclosed is a
    spreadsheet listing the organizations and stakeholders with whom EPA
    staff have discussed this rulemaking effort. The EPA expects to release
    a notice of proposed rulemaking and request for public comment by
    November 2019 and to take final action on the proposal by July 2020.
    The docket, accompanying the proposed rulemaking, will contain the
    information underpinning the Agency's proposed action and will be
    available for viewing on regulations.gov.
        The EPA does not possess data on the total number of facilities
    that blend or use side-stream treatment, frequency of blending, or
    volume of blended effluent discharged for the national universe of
    POTWs. The EPA has limited data on the cost and treatment effectiveness
    for any installed side-stream technologies as well as pathogen levels
    in blended wastewater discharges to compare to discharges of wastewater
    that has received full biological treatment.
        Regarding the number of POTWs whose NPDES permits include acute
    (short-term) limits on pathogens, the EPA used final effluent Discharge
    Monitoring Report (DMR) data to identify limits for pathogens and
    pathogen indicators in 6,597 NPDES permits for POTWs serving separate
    sanitary sewer systems. DMRs do not identify effluent limits as short-
    or long-term or acute or chronic. Rather, the limits are categorized
    based on whether they represent a maximum (e.g., daily maximum,
    instantaneous maximum) or average (e.g., weekly average, annual
    average, monthly average) condition. The EPA found that 3,492 permits
    contained year-round maximum limits and 5,380 contained year-round
    average limits; 431 permits contained seasonal maximum limits and 560
    contained seasonal average limits.
        The EPA analyzed the POTWs serving separate sanitary sewer systems
    that discharge into a coastal recreation water or discharge up to 5
    miles upstream of a coastal recreation water (as defined in Section 502
    of the Clean Water Act) that had a beach advisory or closing at least
    once in 2018. There were 51 POTWs that discharge into or up to 5 miles
    upstream of a coastal recreation water that had a beach advisory or
    closing at 56 beaches at least once in 2018. The EPA analyzed the
    number and location of POTWs serving separate sanitary sewer systems
    located in low-income or minority communities with one or more effluent
    exceedances in 2018 of at least one existing NPDES permit limit. Of the
    4,082 POTWs that exceed one or more permit limits in 2018, 945 were
    located in either low-income or minority communities.
        The Committee's request is related to an ongoing regulatory action.
    Given its current status, we are particularly concerned about
    protecting the integrity of ongoing Agency pre-decisional
    deliberations. Some of the documents you seek may well reflect internal
    advice, recommendations, and analysis by Agency staff and attorneys
    about the proposed rule. These internal and pre-decisional
    deliberations are likely to be the subject of additional discussions
    and analysis among Agency staff and senior policymakers during
    development of this proposal and subsequent finalization or any
    regulatory action. It is critical for Agency policymakers to obtain the
    broadest range of advice and recommendations from Agency staff in order
    to properly fill its statutory obligations under the Clean Water Act
    and other environmental statutes. Disclosure of pre-decisional
    information at this stage of the deliberations could raise questions
    about whether the Agency's decisions are being made or influenced by
    proceedings in a legislative or public forum rather than through the
    established administrative process, which is ongoing. In addition.
    disclosure of such information could compromise the ability of Agency
    employees to provide candid advice and recommendations during the
    Agency's ongoing deliberative process and may make the rulemaking
    process, as a whole, less robust, potentially impacting the Agency's
    mission.
        The EPA recognizes the importance of the Committee's need to obtain
    information necessary to perform its legitimate oversight functions and
    is committed to continuing to work with your staff on how best to
    accommodate the Committee's interests. If you have further questions,
    you may contact me, or your staff may contact Duncan Braid in the EPA's
    Office of Congressional and Intergovernmental Relations.
            Sincerely,
                                          Joseph A. Brazauskas,
                                        Acting Associate Administrator.

    Enclosure

    cc: The Honorable Sam Graves, Ranking Member

         letter 7 from u.s. environmental protection agency, office of
                 congressional and intergovernmental relations
                                                    September 17, 2019.
    Hon. Peter A. DeFazio,
    Chairman,
    Committee on Transportation and Infrastructure, U.S. House of
            Representatives, Washington, DC.

        Dear Chairman DeFazio:
        On behalf of the U.S. Environmental Protection Agency, I am writing
    in response to your letter dated July 29, 2019, to Administrator Andrew
    Wheeler, in which you sought information about the implementation of
    the Clean Water Act (CWA) and the final rule to repeal the 2015 Rule
    and the proposed rule to revise the definition of ``waters of the
    United States.''
        On September 12, 2019, the EPA and the Department of the Army
    (``the agencies'') signed a final rule to repeal the 2015 Clean Water
    Rule: Definition of ``Waters of the United States'' (``2015 Rule''),
    which amended portions of the Code of Federal Regulations (CFR), and
    restored the regulatory text that existed prior to the 2015 Rule. With
    this final rule, the agencies will implement the pre-2015 Rule
    regulations informed by applicable agency guidance documents and
    consistent with Supreme Court decisions and longstanding agency
    practice. This rule is the first step--Step 1--in a two-step rulemaking
    process to define the scope of ``waters of the United States'' under
    the CWA. Step 1 provides regulatory certainty as to the definition of
    ``waters of the United States'' following years of litigation
    surrounding the 2015 Rule. The final Step 1 rule takes effect 60 days
    after publication in the Federal Register.
        The agencies are repealing the 2015 Rule for four primary reasons.
    First, the agencies conclude that the 2015 Rule did not implement the
    legal limits on the scope of the agencies' authority under the CWA as
    intended by Congress and reflected in Supreme Court cases, including
    Justice Kennedy's articulation of the significant nexus test in
    Rapanos.\1\ Second, the agencies conclude that in promulgating the 2015
    Rule, the agencies failed to adequately consider and accord due weight
    to the policy of the Congress in CWA section 101(b) to ``recognize,
    preserve, and protect the primary responsibilities and rights of States
    to prevent, reduce, and eliminate pollution'' and ``to plan the
    development and use . . . of land and water resources . . . '' 33
    U.S.C. 1251(b). Third, the agencies repealed the 2015 Rule to avoid
    interpretations of the CWA that push the envelope of their
    constitutional and statutory authority absent a clear statement from
    Congress authorizing the encroachment of federal jurisdiction over
    traditional state land-use planning authority. Lastly, the agencies
    conclude that the 2015 Rule's distance-based limitations suffered from
    certain procedural errors and a lack of adequate record support. The
    agencies find that these reasons, collectively and individually,
    warrant repealing the 2015 Rule. The Step 1 final rule returns the
    relationship between the federal government, states, and tribes to the
    longstanding and familiar distribution of power and responsibilities
    that existed under the CWA for many years prior to the 2015 Rule.
    ---------------------------------------------------------------------------
        \1\ Rapanos v. United States and Carabell v. United States 547 U.S.
    715 (2006) (``Rapanos'').
    ---------------------------------------------------------------------------
        On December 11, 2018, the agencies signed a proposed rule--Step 2--
    providing a clear, understandable, and implementable definition of
    ``waters of the United States'' that clarifies federal authority under
    the CWA while respecting the role of states and tribes in managing land
    and water resources within their borders. This proposal contains a
    straightforward definition that would protect the nation's navigable
    waters, help sustain economic growth, and reduce barriers to business
    development. The proposed rule would provide clarity, predictability,
    and consistency regarding the scope of federal jurisdiction under the
    CWA. The proposed rule also details exclusions for specific features
    that would not be ``waters of the United States,'' such as features
    that only contain water during or in response to rainfall (i.e.,
    ephemeral features); groundwater; many ditches, including most roadside
    and farm ditches; prior converted cropland; certain stormwater control
    features; and waste treatment systems.
        The agencies believe this proposed definition appropriately
    identifies waters that should be subject to federal regulation under
    the CWA, while respecting the role of states and tribes in managing
    their own land and water resources. Many states and tribes have
    existing regulations that apply to waters within their borders, whether
    or not they are considered ``waters of the United States.'' The Step 2
    proposed rule, if finalized, would give states and tribes more
    flexibility in determining how best to manage their land and water
    resources while protecting the nation's navigable waters as intended by
    Congress when it enacted the CWA.
        In advance of issuing the proposed rule, the agencies invited
    written pre-proposal recommendations and established an administrative
    docket to accept recommendations from all interested parties. The
    agencies considered the input received from a wide range of
    stakeholders as they developed the Step 2 proposal. In addition to pre-
    proposal input, the EPA and the Army held a public webcast to help
    explain the key elements of the proposed ``Revised Definition of Waters
    of the United States'' on February 14, 2019. The agencies also held a
    public hearing on the proposed revised ``waters of the United States''
    definition in Kansas City, Kansas, on February 27 and 28, 2019. Ora]
    statements and supporting information presented at this public hearing
    were considered with the same weight as written statements and
    supporting information submitted during the public comment period. The
    agencies listened to those directly affected by the regulations.
        In developing the Step 2 proposed rule. the agencies also evaluated
    potential impacts of the proposed revised ``waters of the United
    States'' definition to CWA programs and regulated entities. Due to
    significant data limitations that are discussed in both the Economic
    Analysis and the Resource and Programmatic Assessment for the proposed
    rule, the agencies' analyses are largely qualitative. These documents,
    which we have enclosed, are publicly available on the EPA's website
    (https:/lwww.epa.gov/wotus-rule/proposed-revised-definition-wotus-
    supporting-documents).
        The agencies are not aware of any map or dataset that accurately or
    with any precision portrays the scope of CWA jurisdiction at any point
    in the history of this complex regulatory program. The agencies
    attempted to use the National Hydrography Dataset (NHD) at high
    resolution and the National Wetlands Inventory (NWI) in a Geographic
    Information Systems analysis to assess the potential change in CWA
    jurisdiction as a result of the proposed revised definition of ``waters
    of the United States,'' but ultimately concluded that the limitations
    of the datasets (including known errors of omission and commission,
    positional inaccuracies, misclassification of stream flow permanence,
    and the fact that neither the NHD nor the NWI were created for
    regulatory purposes) prohibit using the data to quantify the extent of
    waters whose jurisdictional status could change under the proposed
    rule. While the NHD and NWI are the most comprehensive hydrogeographic
    datasets mapping waters and wetlands in the United States and are
    extremely useful resources for a variety of federal programs, they have
    technical limitations that present significant challenges for use as
    standalone tools to determine the scope of CWA jurisdiction, regardless
    of the regulatory definition of ``waters of the United States.'' It is
    the longstanding position of the agencies that these datasets do not
    represent waters subject to CWA jurisdiction.\2\
    ---------------------------------------------------------------------------
        \2\ See, e.g., Letters from EPA Office of Water Acting Assistant
    Administrator Nancy Stoner to H. Committee on Sci., Space & Tech.
    Chairman Lamar Smith (July 28, 2014, and August 6, 2014) (``[N]o
    national or statewide maps have been prepared by any agency, including
    EPA, showing the scope of waters subject to the Clean Water Act . . .
    To develop maps of jurisdictional waters requires site-specific
    knowledge of the physical features of water bodies, and these data are
    not available[.]'' (emphasis added). See also ``The EPA Blog'' post
    entitled ``Mapping the Truth'' (August 28, 2014) [``While these [U.S.
    Geological Survey and Fish & Wildlife Service] maps are useful tools
    for water resource managers, they cannot be used to determine Clean
    Water Act jurisdiction--now or ever.''), https://blog.epa.gov/2014/08/
    28/mapping-the-truth/. Letter from EPA Office of Water Deputy Assistant
    Administrator Kenneth J. Kopocis to H. Committee on Sci., Space & Tech.
    Chairman Lamar Smith (January 8, 2015) (``These [USGS] maps were not
    prepared for the purpose of, nor do they represent, a depiction of the
    scope of waters protected under the Clean Water Act. . . . Due to the
    resolution limitations of the maps, they are not effective in
    distinguishing consistently between land and water.'').
    ---------------------------------------------------------------------------
        Regarding information on the number, location, and type of
    regulated discharges for each existing National Pollutant Discharge
    Elimination System (NPDES) permitted facility located on an
    intermittent, ephemeral, and/or headwater stream, the EPA is enclosing
    documents showing the agency's preliminary analysis which identifies
    specific dischargers and the classification of the nearest NHD-mapped
    flowline relative to the discharge outfall location or discharger's
    facility location. However, the EPA is unable to determine in this
    national analysis if the permitted dischargers were actually
    discharging to these waters and whether these dischargers would
    continue to be covered under the CWA due to the data limitations of the
    NHD described above. Additionally, classification of flowlines as
    ``ephemeral,'' ``intermittent,'' and ``perennial'' in NHD at high
    resolution may not accurately reflect stream flow permanence on the
    ground.\3\ Of note, a NPDES permittee currently discharging to a
    jurisdictional water that becomes non-jurisdictional under a change to
    the definition of ``waters of the United States'' could remain subject
    to the requirements of the CWA if it continues to satisfy the point
    source conveyance requirements of the Act.
    ---------------------------------------------------------------------------
        \3\ See, e.g., Fritz KM et al., Comparing the extent and permanence
    of headwater streams from two field surveys to values from hydrographic
    databases and maps. J Am Water Resour Assoc, 49:867-882 (2013); see
    also. e.g.. Fritz KM. Wenerick WR, and Kostich MS, A validation study
    of a rapid field-based rating system for discriminating among flow
    permanence classes of headwater streams in South Carolina, Environ
    Manage. 52:1286-1298 (2013).
    ---------------------------------------------------------------------------
        The Economic Analysis and Resource and Programmatic Assessment for
    the proposed rule describe how the proposed rule might affect
    categories of waters and CWA programs. The Economic Analysis presents
    three case studies to estimate how a potential change in CWA
    jurisdiction could affect water quality; these case studies describe
    relevant caveats regarding data limitations as well.
        The Committee's request is related to an ongoing regulatory action,
    a status that raises particular concerns regarding the integrity and
    pre-decisional nature of the agencies' ongoing deliberations. Some of
    the documents you seek will reflect internal advice, recommendations,
    and analysis by the agencies' staff and attorneys about the proposed
    Step 2 rule. These internal and pre-decisional deliberations are likely
    to be the subject of additional discussions and analysis among the
    agencies' staff and senior policymakers as they consider the
    approximately 620,000 comments received. It is critical for the
    agencies' policymakers to obtain a broad range of advice and
    recommendations from their staff and to be able to properly execute
    statutory obligations under the CWA and other environmental statutes.
    Disclosure of pre-decisional information at this stage of the
    deliberations could raise questions about whether the agencies'
    decisions are being made or influenced by proceedings in a legislative
    or public forum rather than through the established administrative
    process, which is ongoing. In addition, disclosure of such information
    could compromise the ability of the agencies' employees to provide
    candid advice and recommendations during the ongoing deliberative
    process and may have a chilling effect upon future Executive Branch
    deliberations, making the rulemaking process, as a whole, less robust
    and harming the agencies' ability to carry out their missions.
        The EPA recognizes the importance of the Committee's need to obtain
    information necessary to perform its legitimate oversight functions and
    is committed to continuing to work with your staff on how best to
    accommodate the Committee's interests. If you have further questions,
    you may contact me, or your staff may contact Duncan Braid in the EPA's
    Office of Congressional and Intergovemmental Relations.
            Sincerely,
                                          Joseph A. Brazauskas,
                                        Acting Associate Administrator.

    Enclosure

    cc: The Honorable Sam Graves, Ranking Member

     Statement of Robert Nasdor, Northeast Stewardship and Legal Director,
        American Whitewater, Submitted for the Record by Hon. Grace F.
                                   Napolitano
        American Whitewater submits this written testimony to the House
    Committee on Transportation and Infrastructure, Subcommittee on Water
    Resources and Environment Hearing on the Administration's Priorities
    and Policy Initiatives Under the Clean Water Act held on September 18,
    2019. We submit these comments to express our strong opposition to: 1)
    EPA repeal and pending replacement of the 2015 Waters of the United
    States definition, and, 2) EPA proposed rule to revise and codify EPA
    regulations on Water Quality Certification under section 401 of the
    Clean Water Act. Taken together, the repeal of WOTUS and the weakening
    of section 401 of the Clean Water Act will result in an increase in
    pollution in our rivers and restrict the ability of states to ensure
    that federally-licensed energy projects meet water quality standards,
    and impact water-based outdoor recreation.
        American Whitewater is a national 501(c)(3) non-profit organization
    with a mission to protect and restore America's whitewater rivers and
    to enhance opportunities to enjoy them safely. Our members are
    primarily conservation-oriented kayakers, canoeists, and rafters who
    enjoy exploring whitewater rivers. As outdoor enthusiasts who spend
    time on and in the water, our members have a direct interest in the
    health and water quality of our nation's waterways. American Whitewater
    works throughout the country to protect healthy free-flowing rivers and
    restore rivers that have been dammed, degraded, and dewatered through
    hydropower development. The EPA actions described herein threaten the
    river conservation and recreation interests of our organization and our
    membership.
       Narrowing the Definition of Waters of the United States Threatens
     Public Health, Rural Economies, Private Property, and River Ecosystems
        Last month, the Administration signed a rule \1\ repealing the
    science-based Clean Water Rule,\2\ which had reasonably defined which
    rivers and other water bodies were covered by the Clean Water Act.
    Concurrently, the Administration has proposed a new rule that will
    replace the Clean Water Rule with less protective standards. These
    overt efforts to reduce the applicability of the Clean Water Act will
    allow the discharge of pollution into more waterways, which threatens
    downstream communities with easily-foreseeable consequences.
    ---------------------------------------------------------------------------
        \1\ https://www.epa.gov/sites/production/files/2019-09/documents/
    wotus_rin-2040-af74_
    final_frn_prepub2.pdf
        \2\ 80 FR 37053. 2015-06-29.
    ---------------------------------------------------------------------------
        For paddlers, water quality directly influences our health, our
    enjoyment of public streams, our tourism contributions to rural
    economies, and in many cases our livelihoods. The Clean Water Rule in
    particular, and the suite of regulations relating to water quality more
    generally, have allowed river-based recreation to flourish along with
    many businesses that discharge regulated pollution into our Nation's
    rivers.
        A 2017 report by the Outdoor Industry Association \3\ found that
    watersports directly generates:
    ---------------------------------------------------------------------------
        \3\ https://outdoorindustry.org/wp-content/uploads/2017/04/
    OIA_RecEconomy_FINAL_
    Single.pdf, pg. 18

          $139,971,810,172 in retail spending
          1,234,876 jobs
          $43,893,049,709 in salaries and wages
          $10,618,742,884 in federal taxes
          $9,601,521,150 in state and local taxes

        The US Bureau of Economic Analysis confirms that the economic
    benefits of water-based recreation is significant in the United States.
    The Bureau calculated that in 2017 boating and fishing were responsible
    for over $38 Billion of gross economic output.\4\
    ---------------------------------------------------------------------------
        \4\ https://www.bea.gov/data/special-topics/outdoor-recreation
    ---------------------------------------------------------------------------
        Clean surface water is an economic engine that deserves protection
    at least as strong as the Clean Water Rule afforded, if not stronger.
    People do not want to swim, fish, or paddle on rivers and lakes that
    are marred by unhealthy or environmentally damaging levels of water
    pollution. Weakening regulations relating to water quality would
    directly threaten the recreation and tourism economies of countless
    communities across the United States. American Whitewater partners with
    many commercial outfitters, equipment manufacturers, and rural
    municipalities that would be directly financially impacted if water
    quality were degraded. We do not feel that the Administration has
    recognized these economic benefits (jobs) associated with the Clean
    Water Rule, nor recognized that these benefits would be eroded by
    weakened regulations. The EPA can best protect rural, recreational, and
    tourism economies by maintaining or strengthening water quality
    regulations.
        The proposed rule changes would strip protections from many rivers
    and streams that do not have constant instream flows. This ignores the
    obvious: when it rains these rivers begin flowing and flush discharged
    pollution downstreams. Most whitewater rivers and streams can only be
    descended during these times of higher-than-normal flows caused by
    rainfall or snowmelt. Surface runoff and pollution often spike during
    these times, even under the current rules. Additionally, whitewater
    boating requires submersion as paddlers get splashed, flip over, and
    occasionally swim. It is part of the fun, but not if the water that
    gets in our mouths, ears, nose, and any cuts is polluted. Reducing
    regulatory protections for surface waters can and will make paddlers
    sick. We believe it is the duty of the EPA to keep citizens who
    recreate in rivers, from paddlers to kids playing in creeks, safe from
    water pollution by, at a minimum, maintaining the existing suite of
    water quality regulations.
        The old adage that ``we all live downstream'' certainly applies as
    the Administration moves to turn a blind eye to discharging pollution
    in our Nation's headwaters. Unregulated upstream discharges have the
    strong potential to impact private property along the river downstream.
    Pollution could reduce the value of property by tarnishing or
    eliminating the elevated property values and enjoyment associated with
    being located on a water body that supports swimming, fishing,
    paddling, and nature observation. It could also impact a property
    owner's rights to make use of the water for a wide range of purposes
    from watering their garden to running a canoe outfitting business.
        The recovery of our nation's rivers following the passage of the
    Clean Water Act has been truly remarkable--though the result has been a
    tenuous balance between pollution discharges and public health. Many
    rivers and streams are far from thriving, and exist very near critical
    public health and ecological function thresholds. Loosening regulations
    would tip many rivers past these thresholds, putting people, fish, and
    livelihoods at risk.
        American Whitewater feels strongly that regulations relating to
    water quality should be maintained, and only be modified if doing so
    serves to strengthen protections for public health and water quality.
    For the reasons stated above, we ask that the Subcommittee do whatever
    possible to redirect the Administration's efforts to reduce the
    applicability of the Clean Water Act.
     Proposed EPA Section 401 Rules Severely Restrict the Ability of the
        States to Protect Clean Water and Regulate Future Impacts from
                              Hydropower Projects
        The EPA is proposing rules that would fundamentally undermine a
    vital section of the Clean Water Act and weaken the role of the states
    as the primary guardians of water quality in federally-permitted energy
    projects. Ensuring that the construction and operation of these energy
    projects both balance power generation with protecting environmental
    quality, and in addition, assuring that these projects meet state water
    quality standards is based on principles of cooperative federalism, a
    framework that is threatened by these proposed rules.
        Section 4(e) of the Federal Power Act states that the Federal
    Energy Regulatory Commission (FERC) is required ``in addition to the
    power and development purposes for which licenses are issued, shall
    give equal consideration to the purposes of energy conservation, the
    protection, mitigation of damage to, and enhancement of, fish and
    wildlife (including related spawning grounds and habitat), the
    protection of recreational opportunities, and the preservation of other
    aspects of environmental quality.'' \5\ This ``equal consideration''
    established under the Electric Consumer Protection Act of 1986 \6\ does
    not necessarily result in equal treatment of power and non-power
    values. Congress noted that FERC must `` . . . give these
    nondevelopmental values the same level of reflection as it does power .
    . .'', but this reflection does not `` . . . necessarily result in
    their equal treatment.'' \7\ Undermining the vital role of the states
    in protecting water quality under the Clean Water Act will leave FERC
    with the discretion to prioritize generation over the protection of
    environmental quality, resulting in a weakening of water quality
    protections.
    ---------------------------------------------------------------------------
        \5\ 16 U.S.C. 797(e)
        \6\ Public Law 99-495
        \7\ H.R. Conf. Rep. No. 934, 99th Cong., 2d. Sess. at 22.
    ---------------------------------------------------------------------------
    1. Background on Section 401 of the Clean Water Act
        Prior to the Clean Water Act, the Federal Power Commission allowed
    the complete dewatering of rivers for hydropower dams, and we are still
    dealing with that legacy today. In enacting the Clean Water Act,
    Congress established a system of cooperative federalism, whereby
    states--in partnership with federal agencies--are granted meaningful
    authority to ensure that federally-licensed activities including
    hydropower generation balance the desire for power generation with the
    protection of environmental values.
        The primary mechanism for maintaining and restoring a high level of
    water quality is section 401 of the Clean Water Act. Under this
    section an applicant for a federal license to conduct an activity
    resulting in a discharge into navigable waters is required to first
    obtain a certification from the state where the project is located. The
    applicant must ensure that it will comply with state water quality
    standards. Section 401 certifications contain conditions that must be
    included as articles in a FERC license lasting 30-50 years and
    typically include requirements for minimum instream flows along with
    other measures relating to its water quality standards. States have one
    year to either grant, grant with conditions, or deny certification. If
    they fail to do so within that one year period, they waive their rights
    and the project can be licensed without certification that the project
    complies with state water quality standards.
    2. Recent Developments Threatening the Ability of States to Protect
            Water Quality
        Over the past several years, there have been ongoing efforts to
    undermine the Clean Water Act. In the last Congress, the energy
    industry and its allies in Congress attempted to pass legislation that
    would limit the ability of states to determine whether a project
    complies with water quality standards.\8\ Having failed in its effort
    to persuade Congress to weaken the Clean Water Act, the energy industry
    and its allies in the executive branch now seek to circumvent Congress
    through the administrative rulemaking process. At the same time, a
    recent court decision interpreting section 401 limits the amount of
    time that the states have to review projects for compliance with water
    quality standards.\9\ FERC and now the EPA are attempting to extend the
    holding in that case to a broad range of energy projects, and revise
    its interpretation of the certification requirement to overturn two
    Supreme Court decisions, discussed infra, that upheld the authority of
    states to impose conditions and assure compliance with water quality
    standards for energy projects.\10\ The convergence of an industry-
    friendly administration willing to disregard environmental impacts
    combined with a misguided interpretation of the certification deadline
    by the Court of Appeals has created this perfect storm that poses an
    existential threat to vital Clean Water Act protections.
    ---------------------------------------------------------------------------
        \8\ Hydropower Policy Modernization Act of 2017
        \9\ Hoopa Valley Tribe v. Federal Energy Regulatory Commission, 913
    F.3d 1099 (2019)
        \10\ S. D. Warren Co. v. Maine Board of Environmental Protection,
    547 U.S. 370 (2006)
    ---------------------------------------------------------------------------
        Last January, the D.C. Circuit ruled in Hoopa Valley Tribe v. FERC
    that the states of California and Oregon waived their 401 authority by
    failing to either issue or deny certification within one year of
    application, invalidating a FERC-approved practice where project
    applicants would withdraw-and-resubmit their applications for water
    quality certification by the state in order to extend the 1-year
    deadline.\11\ Since the Hoopa decision, FERC has found waiver of state
    section 401 authority in cases where there was no explicit agreement
    between a state and licensee to withdraw-and-resubmit water quality
    certification applications.\12\
    ---------------------------------------------------------------------------
        \11\ Hoopa Valley Tribe v. Federal Energy Regulatory Commission,
    913 F.3d 1099 (2019)
        \12\ Placer County Water Agency, 167 FERC para.61,056 (Apr. 18,
    2019)
    ---------------------------------------------------------------------------
        The threat to state 401 authority from the Hoopa decision and
    subsequent extension by FERC has been compounded by Executive Order
    13868 that alleges ``[o]utdated Federal guidance and regulations
    regarding section 401 of the Clean Water Act . . . are causing
    confusion and uncertainty and are hindering the development of energy
    infrastructure.'' Following the Executive Order, the EPA issued interim
    guidance and now has proposed new regulations that are basically an
    industry wish list of ways to eliminate any meaningful role of the
    states in protecting water quality in federally-issued licenses.
        The EPA now proposes a complete rewrite of the section 401
    certification regulations that would fundamentally weaken the ability
    of the states to assure that energy projects comply with water quality
    standards by limiting the ability of the states to obtain necessary
    information, limiting the time for the states to review an application,
    and limiting the scope of states' mandatory conditioning authority. At
    the same time, the rules place the burden on the states to justify any
    conditions or denial, shifts the appeals process from state to federal
    court, and prevents the states from enforcing its own water quality
    standards. The intent of the proposed rule is to prevent states from
    imposing conditions on federal licenses and seeks to aid industry in
    challenging or appealing certification conditions rather than
    supporting efforts by the state to assure that federally-licensed
    energy projects comply with state water quality standards as Congress
    intended.
    3. Proposed Rules Prevent States from Adequately Reviewing Section 401
            Applications
        While certification is a precondition to the issuance of a FERC
    license, the CWA provides that certification is waived if the state
    fails or refuses to act on the certification request within the
    specified time that the EPA now proposes to shorten dramatically. The
    proposed rules give the federal licensing agency the exclusive ability
    to set the deadline for states to complete their environmental review
    of project impacts on water quality, but in no circumstance can the
    deadline extend beyond one year. In the case of FERC licenses for
    hydropower projects the EPA suggests that a six-month deadline is
    sufficient despite the fact that the applicant may not have provided
    the state with complete information and despite the fact that FERC will
    not have completed its own environmental review. For Army Corps section
    404 permits, the EPA suggests a 60-day review period is sufficient.
    This rule change will prevent the states from having enough time to
    complete a meaningful review of a project's environmental impacts.
        The proposed rules start the time clock for state certification
    when an applicant submits a bare bones request to the state
    certification agency, rather than when the applicant provides the state
    with complete information to allow it to begin its environmental
    review. There is no requirement that the applicant provide any
    information about the impact of the project on water quality or
    demonstrate compliance with state water quality standards.
        The proposed rule gives state certifying agencies only 30 days to
    request additional information from the applicant, and in addition,
    limits the ability of certification agencies to request additional
    information to only that information that can be collected or generated
    by the FERC deadline; it also limits the type of information that can
    be requested. This would only allow states to rely on FERC-approved
    studies as a basis for making a certification determination. This is a
    particular concern given FERC's unwillingness to require studies
    requested by state certification agencies. Because the needs of
    certifying agencies are distinct from those of FERC, sole reliance on
    studies required by FERC will not provide sufficient information for
    those agencies to determine whether the project will comply with water
    quality standards. Currently there is no such limitation on information
    requests.
    4. Proposed Rules Limit Scope of Section 401 Conditions Allowed
        The scope of the certifying agency's section 401 authority is
    limited under these rules to assuring that a discharge from a permitted
    activity will comply with water quality requirements. Impacts from
    activities not related to the discharge are beyond the scope of 401
    according to the proposed rules. This limitation is in direct conflict
    with two of the Supreme Court's seminal Clean Water Act cases. Contrary
    to the Supreme Court's holding in S. D. Warren Co. v. Maine Bd. of
    Environmental Protection, 547 U.S. 370 (2006), the proposed rules
    narrowly interpret the word ``discharges'' to apply only to point-
    source discharges. In addition, the proposed rules make clear that the
    EPA seeks to overturn PUD No. 1 of Jefferson County and City of Tacoma
    v. Washington Department of Ecology, 511 U.S. 700 (1994) (PUD No. 1)
    where the Court held that section 401 empowers states to prescribe
    conditions addressing impacts from the project activities as a whole
    rather than only those impacts that result from the discharge itself,
    relying on the dissent by Justice Thomas despite it having no force of
    law. Additionally, the proposed rules limit section 401 authority to
    assuring compliance with water quality requirements rather than water
    quality standards, further narrowing the scope of review to only those
    aspects of WQS pertaining to water quality. The rules would limit the
    ability of states to prescribe conditions relating to anything other
    than direct impacts to water quality from the discharge, excluding
    impacts from any other requirements in state laws or regulations,
    impacts to recreation access for fishing and boating and use of project
    lands, impacts from non-point source pollution, impacts from project
    operations on reservoirs, impacts on aesthetics, and impacts on fish
    passage.
    5. Proposed Rules Permit Federal Agency to Reject State 401 Conditions
        Under current requirements, federal permit granting agencies may
    not issue a license for an activity resulting in a discharge into
    navigable waters where the certifying agency denies a water quality
    certificate. In addition, federal agencies must include as license
    conditions all requirements contained in section 401 water quality
    certifications. The proposed rules would for all intents and purposes
    eliminate the requirement that federal agencies include state-mandated
    conditions in project licenses, and in addition, limit the ability of
    states to deny certification to projects that fail to comply with state
    water quality standards. The proposed rules require state certification
    agencies to justify any conditions and to explain whether a less
    stringent condition could satisfy water quality requirements. We can
    expect that FERC will find some fault and reject state required
    conditions whenever they are more stringent than its own. This is a
    change from the current procedures that require FERC acceptance of
    state conditions in almost all cases.
        While a state certification agency may deny certification if it is
    unable to certify that the project will comply with water quality
    requirements, the proposed rules do not allow certifying agencies to
    deny certification for reasons beyond what the EPA considers to be the
    narrow scope of the state's section 401 authority, excluding any
    requirement of state and local laws other than EPA-approved aspects of
    state water quality standards dealing with water quality impacts from
    discharges from the project. The proposed rules require that the
    certifying agency justify its certification denial to the federal
    agency. It is unclear as to whether the failure of an applicant to
    provide sufficient information upon which to evaluate the certification
    request is a sufficient basis for denial. These proposed rules define
    the failure or refusal to act not only in terms of time, but also as
    the constructive failure to act through denial of certification or the
    imposition of conditions based on criteria other than EPA-approved
    water quality impacts from the discharge. This is a major change from
    current requirements and would in our view require a legislative
    change.
    6. Proposed Rules Weaken Enforcement of State Water Quality Standards
        The proposed rules shift appeals over state certification
    conditions from state courts where the project proponent has the burden
    to show compliance with water quality standards to federal court where
    the state certifying agency has the burden to show that certification
    conditions comply with EPA rules. The rules place the burden of proof
    on the certifying agency to demonstrate that it has acted within the
    proper scope of authority in imposing the condition or denial rather
    than placing the burden of showing non-compliance with the EPA, FERC,
    or project applicant.
        Under the proposed rules, state certification agencies have no
    continuing jurisdiction over compliance with conditions in the
    certification as enforcement is left to FERC's discretion. The rules
    attempt to prevent states or individuals from pursuing a cause of
    action under the CWA to enforce conditions in the certification or to
    address violations of state water quality standards. The proposed rules
    also question the appropriateness of provisions that permit certifying
    agency to reopen certification based on changed conditions or other
    impacts, and are unclear whether states have jurisdiction over post-
    license maintenance and repair projects that have an impact on water
    quality.
                                   Conclusion
        American Whitewater appreciates this opportunity to provide this
    testimony to the House Committee on Transportation and Infrastructure,
    Subcommittee on Water Resources and Environment, and commends the
    Subcommittee for its work to maintain essential Clean Water Act
    protections.

    Statement of the Environmental Working Group, Submitted for the Record
                          by Hon. Grace F. Napolitano
        Per- and polyfluoroalkyl substances, or PFAS, are a class of widely
    used chemicals that contaminate countless rivers, lakes, streams and
    other waterways regulated under the Clean Water Act. PFAS chemicals are
    linked to cancer, harm to the reproductive and immune systems, hormone
    disruption, liver and kidney damage, changes in serum lipid levels, and
    hormone disruption.\1\ EWG has identified more than 700 communities
    contaminated with PFAS chemicals,\2\ including 297 military
    installations,\3\ and estimates that over 100 million Americans may
    have PFAS in their drinking water.\4\
    ---------------------------------------------------------------------------
        \1\ https://www.nrdc.org/sites/default/files/media-uploads/
    nrdc_pfas_report.pdf
        \2\ https://www.ewg.org/release/pfas-map-update-new-data-show-712-
    contamination-sites-49-states
        \3\ https://www.ewg.org/release/new-pfas-detections-reported-90-
    additional-army-installations
        \4\ https://www.ewg.org/research/report-110-million-americans-
    could-have-pfas-contaminated-drinking-water

                        Figure 1: Map of 712 PFAS Sites

        A defining characteristic of PFAS is the carbon-fluorine bond, one
    of the strongest bonds in chemistry. This characteristic means that
    once PFAS chemicals are released into the environment, they never break
    down in the environment, leading some to dub them ``forever
    chemicals.'' \5\ PFAS are also highly mobile, which means that after
    they are released into the environment, they can quickly spread to and
    contaminate a large geographic area. Because PFAS are so persistent,
    they will continue for decades to expose people in communities where
    they have been released, unless the PFAS is removed.
    ---------------------------------------------------------------------------
        \5\ https://www.washingtonpost.com/opinions/these-toxic-chemicals-
    are-everywhere-and-they-
    wont-ever-go-away/2018/01/02/82e7e48a-e4ee-11e7-a65d-
    1ac0fd7f097e_story.html?
    arc404=true
    ---------------------------------------------------------------------------
        PFAS contaminate ground and surface water used for drinking water.
    They contaminate the water used to irrigate, and sewage sludge used to
    fertilize farmland. Crops and plants have been shown to uptake PFAS, so
    they can contaminate fruits and vegetables.\6\ PFAS build up in animals
    like fish, deer and cows exposed to PFAS-contaminated water or feed. In
    some cases, residents have been warned not to eat fish \7\ or deer,\8\
    and some farmers have had to euthanize their cattle as a result of PFAS
    contamination.\9\
    ---------------------------------------------------------------------------
        \6\ https://www.ncbi.nlm.nih.gov/pubmed/30502744
        \7\ https://www.michigan.gov/pfasresponse/0,9038,7-365-
    86512_88987_88989---,00.html
        \8\ https://www.michigan.gov/pfasresponse/0,9038,7-365-
    86512_88981_88982---,00.html
        \9\ https://www.theguardian.com/us-news/2019/feb/20/new-mexico-
    contamination-
    dairy-industry-pollution
    ---------------------------------------------------------------------------
        PFAS also build up in the blood serum and organs of people who
    consume contaminated food and water, and they can stay in the human
    body for decades. One report by the Centers for Disease Control and
    Prevention's National Health and Nutrition Examination Survey, or
    NHANES, found some level of PFAS in the blood of 97 percent of
    Americans \10\ and about one-quarter of Americans have unsafe levels of
    PFAS in their blood.
    ---------------------------------------------------------------------------
        \10\ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4483690/
    ---------------------------------------------------------------------------
        PFAS are also almost entirely unregulated under every major
    environmental statute, including the Clean Water Act. No one knows
    exactly how much PFAS is released into the environment or the extent of
    the current pollution. Military and civilian firefighters continue to
    use PFAS-laden firefighting foams that seep into drinking water
    supplies. Because these fluorinated foams have been used for decades,
    hundreds of military installations have been contaminated. Because PFAS
    have not been designated as hazardous substances under the federal
    Superfund law, there are no requirements to clean up them up at these
    military installations or other contaminated sites.
        Moreover, manufacturers continue to discharge PFAS into the air and
    water. EWG suspects that there are nearly 500 facilities that discharge
    PFAS chemicals into the environment,\11\ but these manufacturers are
    not subject to any discharge limits or reporting requirements specific
    to PFAS. Water utilities are not federally required to remove PFAS from
    our tap water or even test for its presence.
    ---------------------------------------------------------------------------
        \11\ https://www.ewg.org/news-and-analysis/2019/06/pfas-nation-
    toxic-discharges-suspected-
    almost-500-industrial-facilities

                   Figure 2: Map of Suspected PFAS Discharges

        H.R. 3616, the Clean Water Standards for PFAS Act of 2019,
    introduced by Reps. Chris Pappas, Elissa Slotkin, Brendan Boyle, and
    Madeleine Dean, is an important first step in turning off the tap for
    toxic PFAS and limiting PFAS releases into the environment. The bill
    would designate PFAS as toxic pollutants under section 307(a) of the
    Clean Water Act and require EPA to establish effluent limitations and
    pretreatment standards for PFAS.
        Toxic pollutants are subject to the National Pollutant Discharge
    Elimination System, or NPDES, permitting program under the Clean Water
    Act. NPDES permits include limits on the amount of toxic pollutant
    allowed in discharges from point sources. H.R. 3616 would also require
    the development of effluent limitation guidelines for key industry
    sectors that are responsible for discharges of PFAS and other toxic
    pollutants. Effluent limitations are technology-based regulations that
    are intended to represent the greatest pollutant reductions that are
    economically achievable for an industry. Effluent limitations are
    incorporated into NPDES permits for direct dischargers. H.R. 3616 would
    also require treatment standards for PFAS before they can be discharged
    into publicly owned treatment works. Pretreatment standards are
    designed to reduce toxic pollutant discharges into municipal sewer
    systems and the environment.
        Putting these limits in place would reduce human exposure to PFAS
    by significantly reducing the amount of PFAS released into the
    environment and the subsequent burden on wastewater and water
    utilities. H.R. 3616 will also give industrial PFAS users more
    regulatory certainty with regard to potential liability under the
    Comprehensive Environmental Response Liability and Compensation Act, or
    CERCLA. Also known as the Superfund Law, CERCLA jumpstarts the cleanup
    process at many contaminated sites. Another House bill, H.R. 535, the
    PFAS Action Act, would require the EPA to designate PFAS as hazardous
    substances under CERCLA. Because releases of toxic pollutants in
    compliance with section 402 NPDES permits are considered ``federally
    permitted releases,'' \12\ facilities that release PFAS in compliance
    with the limits set forth in a section 402 NPDES permit will be
    shielded from liability.\13\
    ---------------------------------------------------------------------------
        \12\ See 42 U.S.C. Sec.  9601(10).
        \13\ 42 U.S.C. Sec.  9607(j).
    ---------------------------------------------------------------------------
        Congressional action is needed to address PFAS because President
    Trump's EPA has refused to act. Last year the Trump Administration
    proposed a PFAS Action Plan \14\ that did nothing to address the
    growing PFAS contamination crisis.
    ---------------------------------------------------------------------------
        \14\ https://www.epa.gov/pfas/epas-pfas-action-plan
    ---------------------------------------------------------------------------
        H.R. 3616 would provide a critical first step toward addressing the
    ongoing PFAS contamination crisis. The House of Representatives
    recognized this when it added H.R. 3616 as an amendment to H.R. 2500,
    the National Defense Authorization Act for FY 2020. However, both the
    House and Senate versions of the NDAA for FY 2020 include additional
    critical bipartisan PFAS reforms. In particular, provisions in both
    versions of the NDAA would require polluters to clean up legacy PFAS
    contamination; set a deadline for the EPA to develop a set of drinking
    water standards; end the military's use of PFAS in firefighting foam
    and food packaging; ensure proper disposal of PFAS wastes; require the
    disclosure of PFAS discharges into the water and air; and expand
    monitoring for PFAS. In particular, the Dingell-Kildee amendment to
    H.R. 2500 would designate PFAS as hazardous substances under CERCLA. By
    conferring this designation, the Dingell-Kildee amendment will kick-
    start the remediation process at the sites most contaminated by PFAS
    and ensure that polluters pay their fair share of cleanup costs.
        EWG appreciates the Subcommittee's attention to this issue and
    looks forward to working with the Transportation and Infrastructure
    Committee this Congress.

                                    Appendix

                                  ----------

      Questions from Hon. Peter A. DeFazio to Hon. David Ross, Assistant
      Administrator, Office of Water, U.S. Environmental Protection Agency

    Waters of the United States

        Question 1. The agencies recently finalized their repeal of the
    2015 Clean Water Rule and have proposed a far weaker replacement rule
    but have not analyzed hundreds of jurisdictional determinations made
    using the 2015 Rule to see how it worked in practice. Why did the
    current administration ignore the best evidence of how the 2015 Rule
    functions?
        Answer. In developing the final Navigable Waters Protection
    Rule,\1\ EPA and the Department of the Army evaluated potential impacts
    of the rule to categories of waters, Clean Water Act (CWA) programs,
    and regulated entities. Due to significant data limitations that are
    discussed in both the Economic Analysis and the Resource and
    Programmatic Assessment for the final rule, the agencies' analyses are
    largely qualitative. These documents are publicly available on EPA's
    website (https://www.epa.gov/wotus-rule/navigable-waters-protection-
    rule-step-two-revise).
    ---------------------------------------------------------------------------
        \1\ The final Navigable Waters Protection Rule to define "Waters of
    the United States" was published in the Federal Register on April 21,
    2020.
    ---------------------------------------------------------------------------
        As for analyzing the approved jurisdictional determinations (AJDs)
    that were made under the 2015 Rule, EPA notes there was a relatively
    small number of AJDs made under the 2015 Rule before it was stayed by
    the courts nationwide in October 2015. Since the nationwide stay was
    lifted in early 2018, less than half of the country was subject to the
    2015 Rule. The 2015 Rule was never implemented in 13 states and has now
    been declared to have exceeded the agencies' authority under the
    CWA,\2\ so the available data are not national in scope.
    ---------------------------------------------------------------------------
        \2\ See Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922 (S.D.
    Ga. Aug. 21, 2019), and Texas v. EPA, 389 F. Supp. 3d 497 (S.D. Tex.
    2019).

        Question 2. What is your best estimate of the length of streams and
    the acreage of ponds and wetlands that your proposed rule will exclude
    from the protections of the Clean Water Act?
        Answer. Although EPA publishes information on its website (https://
    watersgeo.epa.gov/cwa/CWA-JDs/) concerning locations where EPA or the
    U.S. Army Corps of Engineers have determined, on a case-by-case basis,
    whether particular waters are or are not ``waters of the United
    States,'' the agencies are not aware of any datasets or maps that fully
    depict the jurisdictional extent of all waters under the 2015 Rule,
    pre-2015 practice, or the scope of CWA jurisdiction at any point in the
    history of this complex regulatory program.
        Due to existing data and mapping limitations, it is not possible to
    accurately determine the full scope of waters that are ``in'' or
    ``out'' under any ``waters of the United States'' definition. When the
    Navigable Waters Protection Rule was proposed, some claimed that 51
    percent of the nation's wetlands and more than 18 percent of the
    nation's streams would lose CWA protection. It is unclear whether those
    claims were using, as a baseline, the expansive 2015 Rule that has now
    been found to exceed the federal government's statutory authority, or
    whether the claims misinterpret the scope of CWA jurisdiction under
    pre-2015 Rule practice. In any event, these estimates are highly
    unreliable and are based on stream and wetland datasets that were not
    created for regulatory purposes and which have significant limitations.
    Purported statistics of jurisdictional changes are unreliable and
    inherently inaccurate, in part because:

          there are currently no comprehensive datasets through
    which the agencies can depict the universe of ``waters of the United
    States;'' and
          the datasets used to generate the claims cited above--the
    U.S. Geological Survey (USGS) National Hydrography Dataset (NHD) and
    the U.S. Fish and Wildlife Service (FWS) National Wetlands Inventory
    (NWI)--were not developed for regulatory purposes and have significant
    technical limitations that prevent the agencies from using them to
    identify CWA jurisdiction, regardless of the regulatory definition of
    ``waters of the United States.''

        While the NHD and NWI are the most comprehensive hydrogeographic
    datasets mapping waters and wetlands in the United States and are
    useful resources for a variety of federal programs, including CWA
    programs, they cannot be used as standalone tools to determine the
    scope of CWA jurisdiction on a national level. Importantly, the
    Navigable Waters Protection Rule covers tributaries with intermittent
    flow and excludes other features with only ephemeral flow, but the
    NHD--even at high resolution--cannot differentiate between intermittent
    or ephemeral flow in most parts of the country. Further, the NWI uses a
    different definition of ``wetlands'' than the agencies' regulatory
    definition of ``wetlands.'' The NWI also does not contain information
    sufficient to evaluate whether those mapped wetlands meet the
    definition of ``adjacent wetlands'' under previous regulations or under
    the final rule. For example, the NWI does not identify whether a
    wetland is inundated by the nearest jurisdictional water.
        The NHD has other limitations that prevent its use for accurately
    mapping the scope of jurisdictional waters under the CWA, including:

          errors of omission (e.g., failure to map streams that
    exist on the ground);
          errors of commission (e.g., mapping streams that do not
    exist on the ground);
          horizontal positional inaccuracies;
          misclassification of stream flow permanence, particularly
    in headwaters; and
          inconsistent mapping in different parts of the country.

        The NWI also has additional limitations, including:
          errors of omission (e.g., failure to map wetlands that
    exist on the ground);
          errors of commission (e.g., mapping wetlands that do not
    exist on the ground); and
          potentially inaccurate wetland boundary identification.

        While early in the regulatory process the agencies attempted to use
    the NHD and NWI to assess the potential change in CWA jurisdiction as a
    result of the proposed rule, the agencies ultimately concluded that the
    limitations of these datasets preclude their use for quantifying the
    extent of waters whose jurisdictional status could change under the
    proposal. Due to these limitations, which were confirmed during the
    public comment period for the proposed rule and through an extensive
    evaluation by the agencies, the agencies did not use the NHD or NWI to
    assess potential changes in jurisdiction as a result of the final rule.
        It has been the consistent position of the agencies that the NHD
    and the NWI do not represent the scope of waters subject to CWA
    jurisdiction. Of note, the agencies did not use these maps to estimate
    changes in jurisdiction when the 2003 Solid Waste Agency of Northern
    Cook County v. U.S. Army Corps of Eng'rs (SWANCC) Guidance was issued,
    when the 2008 Rapanos Guidance was issued, or when the 2015 Rule was
    promulgated. As the agencies promulgated the 2015 Rule, EPA stated at
    the time that they ``do not have maps depicting waters of the United
    States under either present regulatory standards or those in the final
    [2015] rule.'' \3\ This remains true today--the agencies do not have
    maps of ``waters of the United States'' under the 2015 Rule, under the
    2019 Rule, or under the Navigable Waters Protection Rule.
    ---------------------------------------------------------------------------
        \3\ See Response to Comments for the Clean Water Rule, Clean Water
    Rule Comment Compendium Topic 8: Tributaries, Docket ID. No. EPA-HQ-OW-
    2011-0880-20872, p. 442, https://www.regulations.gov/document?D=EPA-HQ-
    OW-2011-0880-20872.
    ---------------------------------------------------------------------------
        In 2015, former EPA Administrator Gina McCarthy testified before
    Congress \4\ about the NHD and the NWI. According to Administrator
    McCarthy's testimony, those datasets:
    ---------------------------------------------------------------------------
        \4\ Impact of the Proposed ``Waters of the United States'' Rule on
    State and Local Governments: Hearing Before the H. Comm. on Transp. &
    Infrastructure and the S. Comm. on Env't & Pub. Works, 114th Cong.
    (2015) (testimony of Gina McCarthy, Adm'r, EPA).

          were ``not used to determine jurisdiction and not
    intended to be used for jurisdiction'';
          ``are not relevant to the jurisdiction of the `waters of
    the U.S.' '';
          ``are not consistent with how we look at the jurisdiction
    of the Clean Water Act''; and
          have ``nothing to do, as far as I know, with any decision
    concerning jurisdiction of the Clean Water Act.''

        Under the previous administration, EPA Office of Water Acting
    Assistant Administrator Nancy Stoner wrote to the House Committee on
    Science, Space, and Technology that ``no national or statewide maps
    have been prepared by any agency, including EPA, showing the scope of
    waters subject to the Clean Water Act. . . . To develop maps of
    jurisdictional waters requires site-specific knowledge of the physical
    features of water bodies, and these data are not available[.]'' \5\
    Former EPA Office of Water Deputy Assistant Administrator Ken Kopocis
    wrote a similar letter to the House Science Committee, stating: ``These
    [USGS] maps were not prepared for the purpose of, nor do they
    represent, a depiction of the scope of waters protected under the Clean
    Water Act.'' \6\ And in 2014, an EPA blog post entitled Mapping the
    Truth stated, ``While these [USGS and FWS] maps are useful tools for
    water resource managers, they cannot be used to determine Clean Water
    Act jurisdiction--now or ever.'' \7\
    ---------------------------------------------------------------------------
        \5\ Letter from Nancy Stoner, Acting Assistant Adm'r, EPA Office of
    Water, to Hon. Lamar Smith, Chairman, Comm. on Science, Space, and
    Tech., U.S. House of Representatives (July 28, 2014) (emphasis added).
        \6\ Letter from Kenneth J. Kopocis, Deputy Assistant Adm'r, EPA
    Office of Water, to Hon. Lamar Smith, Chairman, Comm. on Science,
    Space, and Tech., U.S. House of Representatives (Jan. 8, 2015).
        \7\ U.S. EPA, Mapping the Truth, THE EPA BLOG (Aug. 28, 2014),
    https://blog.epa.gov/2014/08/28/mapping-the-truth/ (emphasis added).
    ---------------------------------------------------------------------------
        Thus, the agencies are not able to estimate the length of streams
    or the acreage of ponds and wetlands that would not be jurisdictional
    under the proposed rule or the final rule. In the Resource and
    Programmatic Assessment for the Navigable Waters Protection Rule:
    Definition of ``Waters of the United States,'' the agencies provided
    their best attempt to describe the potential effect of the final rule
    on specific categories of aquatic resources.

        a.  If you cannot provide an estimate, do you have any idea how
    many people's sources of drinking water supplies will be adversely
    affected?
        Answer. One may not assume sources of drinking water will be
    adversely affected by the agencies' revised definition. If a source
    water is not a ``water of the United States,'' states, tribes, and
    local governments may have programs and policies in place to protect
    that source water, and even if those are absent, activities that might
    result in water quality degradation will not occur on all streams and
    wetlands. To explore the relationship between ``waters of the United
    States'' and sources of drinking water, the agencies attempted to
    evaluate the spatial distribution of drinking water sources in relation
    to streamflow classification (e.g., perennial, intermittent, ephemeral)
    type by overlaying the source protection areas (SPAs) for surface water
    intakes on the NHD at high resolution. Due to data limitations of the
    NHD--in particular, the fact that the NHD does not identify
    intermittent and ephemeral streams as separate categories in many parts
    of the country--coupled with uncertainty regarding the jurisdictional
    status of many intermittent streams and all ephemeral streams subject
    to a case-specific significant nexus analysis under pre-2015 practice,
    the agencies concluded that the exploratory analysis cannot
    appropriately or accurately assess the potential effects of the final
    rule on public water systems. In addition, the agencies note that the
    mere presence of ephemeral streams in a SPA does not mean there will be
    water quality degradation following the change in the definition of
    ``waters of the United States,'' as mentioned above.

        b.  Can you provide an estimate for the amount of increased
    property damage due to flooding made worse by wetlands loss?
        Answer. Due to existing data limitations described above, the
    agencies are unable to make such estimates.

        c.  If the EPA is ignorant to the real-world public health and
    safety impacts of its proposal, how does the agency expect people to
    meaningfully participate in the rulemaking and how can EPA defend it as
    good policy?
        Answer. As part of the rulemaking process, the agencies invited
    written pre-proposal recommendations and established an administrative
    docket to accept recommendations from all interested parties. The
    agencies received approximately 6,300 letters pre-proposal. The
    agencies considered the input received from a wide range of
    stakeholders as they developed the proposal to revise the definition of
    ``waters of the United States,'' including input received from states,
    tribes, and local governments during the federalism and tribal
    consultation periods. The agencies also provided opportunities for the
    public, states, and tribes to participate in the rulemaking process
    during the public comment period, via a public hearing, and state and
    tribal forums held in four locations across the country. The agencies
    solicited comment throughout the proposed rule's development on all
    aspects of the proposal. The agencies listened to those directly
    affected by the regulations. The public was given ample opportunity to
    participate in the rulemaking process, and the agencies considered the
    comments received in finalizing the rule.
        The agencies also note that the final rule is primarily guided by
    the statutory authority delegated by Congress under the CWA and the
    legal precedent set by key Supreme Court cases. The Supreme Court has
    twice ruled that the agencies misinterpreted the scope of their CWA
    authority, and the agencies' 2015 Rule was found by a federal court to
    have exceeded their statutory authority. The agencies' Navigable Waters
    Protection Rule is designed to protect public health and the
    environment while respecting the statutory authority that Congress
    delegated to them. The agencies are precluded from exceeding their
    delegated authorities to achieve specific policy, scientific, or other
    outcomes.

        Question 3. Since your replacement proposal is based on Justice
    Scalia's opinion in the Rapanos case, how will EPA implement the Act in
    those places where federal courts have ruled that Justice Kennedy's
    more protective approach is controlling?
        Answer. On February 28, 2017, the President issued Executive Order
    13778 entitled Restoring the Rule of Law, Federalism, and Economic
    Growth by Reviewing the ``Waters of the United States'' Rule. Section 1
    of the Executive Order states, ``[i]t is in the national interest to
    ensure the Nation's navigable waters are kept free from pollution,
    while at the same time promoting economic growth, minimizing regulatory
    uncertainty, and showing due regard for the roles of the Congress and
    the States under the Constitution.'' The Executive Order directed EPA
    and the Army to review the 2015 Rule for consistency with the policy
    outlined in Section 1 of the Executive Order and to issue a proposed
    rule rescinding or revising the 2015 Rule as appropriate and consistent
    with law (Section 2). The Executive Order also directed the agencies to
    ``consider interpreting the term `navigable waters' . . . in a manner
    consistent with'' Justice Scalia's plurality opinion in Rapanos v.
    United States, 547 U.S. 715 (2006) (Section 3). As explained in the
    preamble to the final rule, the agencies established a regulation that
    defines ``waters of the United States'' to reflect the ordinary meaning
    of the statutory term, as well as to adhere to Constitutional and
    statutory limitations, the objective and policies of the CWA, and case
    law, including the guiding principles that the Supreme Court has
    articulated in Riverside Bayview Homes, 474 U.S. 121 (1985); Solid
    Waste Agency of Northern Cook County v. U.S. Army Corps of Eng'rs
    (SWANCC), 531 U.S. 159 (2001); and Rapanos for interpreting the reach
    of the CWA.
        While the agencies acknowledge that the plurality and Justice
    Kennedy viewed the question of federal CWA jurisdiction differently in
    Rapanos, the agencies find that there are sufficient commonalities
    between these opinions. These similarities helped instruct the agencies
    on where to draw the line between Federal and State waters in the final
    rule.
        In the final rule, the agencies note that since the Rapanos
    decision, the Federal government has adopted a broad interpretation of
    Justice Kennedy's concurring opinion, arguing that his ``significant
    nexus'' test provides an independent basis for establishing
    jurisdiction over certain ``waters of the United States.'' And rather
    than limiting the application of Justice Kennedy's opinion to the
    specific facts and wetlands at issue in that case, similar to their
    treatment of the SWANCC decision, the agencies previously have applied
    Justice Kennedy's reasoning more broadly to include, for example, the
    application of the significant nexus test to determining jurisdiction
    over tributaries, not just wetlands. Many courts have deferred to this
    position, and some courts rely exclusively on Justice Kennedy's
    significant nexus test while other courts have held that jurisdiction
    can be established under either the plurality or concurring opinions.
    The agencies' final rule, as explained in Section III of the preamble,
    is informed in several key aspects by Justice Kennedy's opinion, but
    the agencies now appropriately recognize some of the limiting
    principles articulated within his concurring opinion, as well as the
    principles articulated in Justice Scalia's plurality opinion in
    Rapanos, the SWANCC majority opinion, and the unanimous decision in
    Riverside Bayview.

        Question 4. The replacement rule would surrender federal safeguards
    for millions of miles of streams and tens of millions of acres of
    wetlands, many of which are critical to endangered species. Have you
    initiated consultation under the Endangered Species Act with the U.S.
    Fish and Wildlife Service and National Marine Fisheries Service and, if
    so, what input have you received?
        Answer. The U.S. Fish and Wildlife Service (FWS) and the National
    Marine Fisheries Service (NMFS) were part of the interagency review
    process for the final rule under Executive Order 12866. The agencies
    have not initiated consultation under the Endangered Species Act (ESA)
    with the FWS and NMFS and need not have done so, given applicable legal
    requirements. The agencies address the requirements of the ESA in the
    Resource and Programmatic Assessment for the Navigable Waters
    Protection Rule: Definition of ``Waters of the United States.''
        Regarding any estimates of the change in jurisdiction as a result
    of the Navigable Waters Protection Rule, see the response to Question 2
    above.

        Question 5. Your proposal assumes that several states will step up
    to protect some or all of the water bodies that you intend to exclude
    from the law's safeguards.
        a.  Did you do any analysis of the present administrative,
    financial, and political landscape in those states and the processes
    which these states would need to navigate to adopt stricter-than-
    federal requirements?
        Answer. The agencies collected information from several sources to
    characterize states' ability to regulate waters beyond the
    jurisdictional scope of the CWA. The agencies' assessment is presented
    in the supporting documents to the final rule, which are publicly
    available on EPA's website (https://www.epa.gov/nwpr/navigable-waters-
    protection-rule-supporting-documents).

        b.  For instance, your economic document predicts that Indiana will
    fill in these gaps--what is Indiana's present willingness and capacity
    to extend the full suite of Clean Water Act protections to all wetlands
    and streams not covered by the proposed rule?
        Answer. The commissioned literature review supporting the Navigable
    Waters Protection Rule, which is available in the docket, identified
    the variables most commonly used in the federalism literature that were
    useful in anticipating how states could respond to the Navigable Waters
    Protection Rule. The agencies relied on a subset of these variables
    that were available to them and had the strongest bearing on the way
    states may respond in order to conduct their analysis of potential
    state responses to the final rule.
        The agencies' analysis of potential state responses in the Economic
    Analysis for the Navigable Waters Protection Rule: Definition of
    ``Waters of the United States'' lists Indiana in the highest response
    category, which means the available data and information indicate
    Indiana is likely to continue regulating beyond the scope of the CWA,
    as Indiana does now, according to the agencies' research. The agencies
    cannot predict conclusively how states will act in the future,
    including whether Indiana will choose to extend its existing
    protections in the future.

        c.  How many states currently have programs established to prevent
    discharges of pollutants or dredged and fill materials to non-Waters of
    the US?
        Answer. The agencies have identified twenty-five states that have
    chosen to regulate waters of the state that are not subject to federal
    regulation under the CWA. This information is based on the agencies'
    extensive research into how states regulate their aquatic resources.
    However, the agencies do not have sufficient information at this time
    to conclude that only those twenty-five states regulate some waters
    that are not ``waters of the United States,'' and recognize that other
    states may regulate such waters based on state program implementation
    practices that the agencies were unable to include in their analysis of
    state programs.

        Question 6. You said several times during the hearing that you are
    not proposing to eliminate Clean Water Act protections for intermittent
    streams.
        a.  Your proposal explicitly took comment on excluding all but
    perennial streams. Is that idea now completely off the table?
        Answer. The revised definition of ``waters of the United States''
    in the final Navigable Waters Protection Rule includes both
    intermittent and perennial tributaries of traditional navigable waters
    as ``waters of the United States.'' The agencies solicited comment on
    all aspects of the proposed rule, including which tributaries of
    traditional navigable waters should be regulated as ``waters of the
    United States.'' An explanation of the categories of waters that are
    and are not jurisdictional under the final rule is publicly available
    on EPA's website (https://www.epa.gov/nwpr).

        b.  Please explain how your proposed definition of ``intermittent''
    ensures that all waters which hydrologists would categorize as
    intermittent will be protected.
        Answer. Though ``intermittent'' is a commonly used scientific term,
    the agencies proposed and subsequently finalized a definition of this
    term for purposes of CWA jurisdiction to ensure that the regulation is
    clear. Under the final rule, the term ``intermittent'' means ``surface
    water flowing continuously during certain times of the year and more
    than in direct response to precipitation (e.g., seasonally when the
    groundwater table is elevated or when snowpack melts).''
        Some public comments that the agencies received on the proposed
    rule requested that the final rule require that groundwater
    contributions be the source for perennial and intermittent flow in
    ``tributaries'' as defined in the rule. The agencies recognize that
    groundwater input is an element of most scientific definitions of
    perennial and intermittent flow, but decided not to mandate groundwater
    input as the controlling element of the definition of ``perennial'' or
    ``intermittent'' in the final rule. As a threshold matter, the agencies
    believe that such an approach would too narrowly limit CWA jurisdiction
    over waters that provide continuous or intermittent and predictable
    flow to traditional navigable waters in a typical year. For example,
    many headwater streams in mountainous regions flow through channels
    incised in bedrock with no groundwater interface with the bed of the
    stream. These streams instead are fed by glacial or high elevation
    snowpack melt. The same scenario may also exist in northern climates,
    where spring flows could be fed almost exclusively through melting
    snowpack absent elevated groundwater tables.
        As noted in the final rule preamble, continuous surface flow during
    certain times of the year may occur seasonally, such as in the spring
    when evapotranspiration is low and the groundwater table is elevated.
    Under these conditions, the groundwater table intersects the channel
    bed and groundwater provides continuous baseflow for weeks or months at
    a time, even when it is not raining or has not very recently rained.
    Melting snowpack, as noted above, however, can be the sole or primary
    source of continuous surface flow in tributaries during certain times
    of the year. The agencies recognize that intermittent flow in certain
    mountain streams, for example, may result primarily from melting
    snowpack, not groundwater contributions to the channel. The agencies
    did not propose or finalize a specific duration (e.g., the number of
    days, weeks, or months) of surface flow that constitutes intermittent
    flow under the final rule because the time period that encompasses
    intermittent flow can vary widely across the country based upon
    climate, hydrology, topography, soils, and other conditions. The
    agencies believe that the definition of ``intermittent'' is consistent
    with the scientific meaning of the term but is likely broader than most
    scientific definitions because of the inclusion of flow generated from
    melting snowpack.

        Question 7. Considering the two letters raising alleged concerns
    about the impact that disclosing documents would have on EPA's
    deliberative process:
        a.  Are there documents responsive to the Committee's requests that
    you have withheld?
        b.  Are any of those documents withheld based on their supposed
    deliberative nature?
        c.  What privilege are you asserting?
        d.  Is that the sole privilege being asserted?
        e.  What is the basis for assertion of that privilege to withhold
    documents from the Committee?
        Answer (a.-e.). At the time, the Committee's requests were related
    to ongoing regulatory actions. Given that status, the Agency was
    particularly concerned about protecting the integrity of ongoing Agency
    pre-decisional deliberations. Some of the documents you sought may well
    reflect internal advice, recommendations, and analysis by Agency staff
    and attorneys about the proposed rules. These internal and pre-
    decisional deliberations are likely to be the subject of additional
    discussions and analysis among Agency staff and senior policymakers
    during development of these proposals and the subsequent finalization
    of any regulatory action. It is critical for Agency policymakers to
    obtain a broad range of advice and recommendations from their staff in
    order to properly execute statutory obligations under the CWA and other
    environmental statutes.
        For ongoing rulemakings, disclosure of pre-decisional information
    at this stage of the deliberations could raise questions about whether
    the Agency's decisions are being made or influenced by proceedings in a
    legislative or public forum rather than through the established
    administrative process. In addition, disclosure of such information
    could compromise the ability of Agency employees to provide candid
    advice and recommendations during the Agency's ongoing deliberative
    process and may have a chilling effect upon future Executive Branch
    deliberations, making the rulemaking process, as a whole, less robust,
    potentially impacting the Agency's mission.
        As for completed rulemaking, the EPA recognizes the importance of
    the Committee's need to obtain information necessary to perform its
    legitimate oversight functions and is committed to continuing to work
    with your staff on how best to accommodate the Committee's interests.

    Groundwater Connection

        Question 1. The Clean Water Act requires a permit for ``Any
    addition of any pollutant to navigable waters from any point source.''
    That language does not include an exemption for discharges via
    groundwater, does it? Is there another provision of the Clean Water Act
    that expressly exempts discharges via groundwater from permitting?
        Answer. On April 23, 2020, the Supreme Court issued an opinion in
    County of Maui v. Hawai'i Wildlife Fund, No. 18-260, addressing the
    question of whether a Clean Water Act National Pollutant Discharge
    Elimination System (NPDES) permit is required for releases of
    pollutants from a point source that passes through groundwater before
    reaching a navigable water. In a 6-3 decision, the Court held that an
    NPDES permit is required ``when there is a direct discharge from a
    point source into navigable waters or when there is the functional
    equivalent of a direct discharge.'' Slip Op. at 15. In describing the
    new ``functional equivalent'' standard, the Court stated that ``an
    addition [of a pollutant] falls within the statutory requirement that
    it be `from any point source' when a point source directly deposits
    pollutants into navigable waters, or when the discharge reaches the
    same result through roughly similar means.'' Slip Op. at 15. The Court
    listed seven factors that ``may prove relevant (depending upon the
    circumstances of a particular case)'' in determining if an NPDES permit
    is required. Slip Op. at 16.
        EPA is reviewing the Court's decision and considering how best to
    address the Court's call for the Agency to provide further guidance,
    including using the tools available to the Agency such as guidance and
    rulemaking, to provide additional clarity, and less risk of future
    litigation, for states and tribes, regulated entities, and the public.

    Sewage ``Blending''

        Question 1. The EPA has recently announced that it is considering
    whether to authorize wastewater treatment plants to discharge partially
    treated or ``blended'' sewage during wet weather events.
        a.  What information does EPA have about how many publicly owned
    treatment works currently engage in blending and how much partially-
    treated wastewater they are discharging into waterways?
        b.  How many of these treatment works are located in or near low-
    income communities or communities of color?
        c.  What scientific evidence does the agency have to support that
    discharging blended sewage is safe for public health and the
    environment, particularly give the high level of pathogens in blended
    sewage?
        d.  How many wastewater treatment plants are subject to short-term
    (acute) limits on pathogen discharges in their NPDES permits to protect
    the public from exposure to pathogens?
        e.  What information does the agency have about the effectiveness
    of alternative or ``side-stream'' technologies that treatment plants
    have proposed using in lieu of traditional treatment methods?
        Answer (a.-e.). EPA's September 16, 2019 response (enclosed) to the
    Chairman's July 29, 2019 letter to the Agency addresses these
    questions. As stated in EPA's September 16, 2019 letter, the Agency's
    rulemaking will be considering changes to the National Pollutant
    Discharge Elimination System (NPDES) regulations to establish a
    permitting framework for evaluating management options to provide
    publicly owned treatment works (POTWs) serving separate sanitary sewer
    systems flexibility in how they manage and treat peak flows. Any
    proposed changes would seek to provide a consistent national approach
    to permitting peak flows that ensures that all applicable permit
    discharge limitations and requirements are met during peak flow events.
    Once the proposal is published in the Federal Register, there will be a
    public docket containing the information underpinning the Agency's
    proposed action available for viewing on regulations.gov.

    PFAS

        Question 1. Mr. Ross, you have testified that PFAS pollution in
    drinking water supplies poses an urgent threat to public health.
        a.  If so, why has EPA failed to use EPA's authority under Sec.
    1412(D) of the Safe Drinking Water Act?
        b.  As you know, Sec. 1412(D) permits the EPA to promulgate an
    interim national primary water drinking regulation to address an urgent
    threat to public health regardless of whether the agency has completed
    a cost-benefit analysis.
        Answer (a.-b.). EPA is committed to following the drinking water
    standard setting process outlined in the Safe Drinking Water Act
    (SDWA). This process is designed to ensure public participation,
    transparency, and the use of the best-available peer reviewed science
    and technical information. On February 20, 2020, EPA took another
    important step in implementing the Agency's PFAS Action Plan by
    proposing regulatory determinations for PFOS and PFOA in drinking
    water. The proposed regulatory determination was published in the
    Federal Register on March 10, 2020. In that proposal, EPA is asking for
    information and data on other PFAS substances, as well as seeking
    comment on potential monitoring requirements and regulatory approaches
    that EPA is considering for PFAS chemicals. After the public comment
    period closes, EPA will evaluate all comments received, and then
    finalizing a regulatory determination will be the next step in the
    regulatory process.
        Setting an ``interim'' National Primary Drinking Water Regulation
    (NPDWR) under SDWA section 1412(b)(1)(D) would still require the Agency
    to go through full notice-and-comment rulemaking and to build an
    administrative record to justify the interim NPDWR. To develop a robust
    and legally defensible administrative record for a NPDWR, the Agency
    uses the Health Risk Reduction and Cost Analysis (HRRCA). This tool
    requires significant data, information and analysis inputs, and much of
    that information would also need to be developed for an interim NPDWR
    and included in any rulemaking record. Moreover, the SDWA requires EPA
    to produce a full HRRCA within 3 years of promulgating an interim
    NPDWR. Developing a full HRRCA after the fact could mean that the final
    analysis may or may not support the requirements of the interim
    regulation, leading to potential revision or withdrawal of the interim
    NPDWR. As such, this process could result in inefficient use of local,
    state, and federal resources, diversion of infrastructure replacement
    funds, increased water bills, and erosion of public trust.
        Pursuant to section 1431(a) of the SDWA, EPA also has authority to
    take necessary action to protect public health from imminent and
    substantial endangerment to drinking water when state and local action
    has been insufficient. Among other things, this authority enables EPA
    to respond to contamination that threatens specific public drinking
    water supplies. EPA has used its authority under section 1431 to issue
    orders that require persons who have caused or contributed to PFAS
    contamination to take actions as may be necessary to protect the health
    of affected persons, including actions that reduce or prevent
    exposures. For PFAS chemicals, EPA believes that section 1431(a)
    provides a more immediate and impactful use of SDWA's emergency powers
    for communities with known or threatened contamination.

    Clean Water Act Section 401

        Question 1. EPA has said that its 401-rulemaking effort represents
    the first holistic review of section 401 of the CWA. Given that the
    agency produced guidance on 401 in 1989 and a handbook in 2010, don't
    these documents represent EPA's agency interpretation of the 401
    regulations? What is the bar for ``analysis?'' Where are the elements
    of analysis defined or listed? What legal precedent is there for
    throwing out decades of agency documents and case law based on ``lack
    of analysis?''
        Answer. The Agency's existing water quality certification
    regulations pre-date the Clean Water Act (CWA) and do not reflect the
    actual language of section 401. As explained in the preamble for the
    proposed rulemaking to update EPA's water quality certification rule,
    although the 1989 guidance and the now-rescinded 2010 handbook included
    a number of recommendations on scope, timing, and other issues related
    to the water quality certification process, these recommendations were
    not supported with robust analysis or interpretation of the CWA.
    Indeed, the 2010 handbook was primarily a compilation of programs
    adopted by states. EPA's section 401 rulemaking marks the first time
    the Agency has undertaken a holistic review of the text of section 401
    and the case law that has developed since the 1972 CWA amendments. This
    is also the first time the Agency has subjected its analysis to public
    notice and comment.

        Question 2. Congress signaled that certifying authorities have
    expertise and ability to evaluate potential water quality impacts,
    which EPA acknowledges in the proposed rule. That being the case, why
    does EPA propose to limit the information that a state can request as
    part of that certification process, restrict certifying authorities'
    ability to condition permits to meet their state resources needs, and
    limit the time in which they can make their expert decisions?
        Answer. The proposal does not limit the ability of states to
    request information as part of the water quality certification process.
    Further, the proposal's timeline to act on a certification request
    simply aligns the proposed regulatory language with the plain language
    of the statute, which requires states to act on a request for
    certification ``within the reasonable period of time (not to exceed one
    year).'' The proposal includes a scope of certification that is
    consistent with the CWA and that appropriately focuses water quality
    certifications and any related conditions on water quality. The EPA has
    made enhancements in the final rule to provide additional clarity and
    regulatory certainty.

        Question 3. Regarding the scope of certification, section 401
    identifies ``any effluent limitations and other limitations,'' (under
    specifically identifies CWA regulatory programs) and ``any other
    appropriate requirements under state law'' as subject to certification
    and condition decisions. Given that Congress specifically identifies
    CWA Provisions that should be considered for certification and
    conditions and added ``any other appropriate requirements under state
    law'' one would reasonably assume that this addition extends the scope
    of 401 beyond the already enumerated CWA provisions.
        a.  Since it is the EPA's position that Congress chose its words
    intentionally, can the EPA explain how it is appropriate to limit the
    phrase ``any other appropriate requirement of state law'' to EPA-
    approved CWA programs?
        Answer. Section 401 contains several important undefined terms
    that, individually and collectively, can be interpreted in varying ways
    to determine the scope of a certifying authority's review and
    authority, including the term ``any other appropriate requirement of
    state law.'' The EPA has made enhancements in the final rule to provide
    additional clarity and regulatory certainty. The Agency's rationale for
    the final rule is laid out in the preamble.

        b.  Why did EPA decide to limit state conditions to state statutes
    as opposed to administrative best management practices, which provide
    more flexibility and place less administrative burden on states?
        Answer. Given the text, structure, purpose, and legislative history
    of the CWA and section 401, EPA proposed to interpret ``appropriate
    requirement of state law'' for section 401 certification review in a
    proposed definition of ``water quality requirements,'' which includes
    those provisions of state or tribal law that are EPA-approved CWA
    regulatory programs. The Agency's rationale for this interpretation is
    laid out in the preamble of the proposed rule (see 84 Fed. Reg. 44080).
    The EPA has made enhancements in the final rule to provide additional
    clarity and regulatory certainty.

        c.  When the administration finalizes its ``Waters of the US''
    rule, would the 401 rulemaking mean that states could non protect their
    ``non-Waters of the US' from adverse effects of federal permits?
        Answer. Section 401 applies to potential discharges from federally-
    licensed or permitted projects into waters of the United States. The
    proposed section 401 rulemaking does not restrict a state's ability to
    protect non-waters of the United States within their borders through
    state authorities.

    Yazoo Pumps

        Question 1. On April 3, 2019, EPA Administrator Andrew Wheeler
    confirmed to a Senate Appropriations subcommittee hearing that his
    agency is now reconsidering a 2008 decision on the Yazoo dam pumps.
        a.  What are the justifications for this reconsideration?
        b.  What is the status of this EPA action?
        Answer (a.-b.). Following the significant flooding along the lower
    Mississippi River and the Yazoo backwater area, EPA and the U.S. Army
    Corps of Engineers (Corps) have been discussing options to reduce the
    flood risks in the Yazoo backwater area while protecting wetlands.
        The Corps has provided additional data and analyses to EPA, and has
    explained how it developed this information. At this time, we are
    discussing what impact the new information might have on options for
    the Yazoo backwater area, in terms of what an appropriate method might
    be to reduce flood risks while protecting wetlands.

    Pebble Mine Decision

        Question 1. Does the EPA continue to support the science and
    findings of adverse ecological impacts described in the 2014 Proposed
    Determination for the Pebble Deposit Area, Southwest Alaska?
        Answer. I have no comment on this matter as I am recused from any
    decisions related to the Pebble Mine.

        Question 2. If not, what new information has arisen to change this
    determination and reconsider the project in its entirety?
        Answer. I have no comment on this matter as I am recused from any
    decisions related to the Pebble Mine.

       Questions from Hon. Lizzie Fletcher to Hon. David Ross, Assistant
      Administrator, Office of Water, U.S. Environmental Protection Agency

        Question 1. During the hearing, I asked you about EPA's role in the
    prevention of spills of hazardous substances under the Clean Water Act.
    As you know, Section 311(j)(1)(C) directs the President to issue
    regulations establishing procedures, methods, and equipment; and other
    requirements for equipment to prevent discharges of oil and hazardous
    substances from vessels and from onshore facilities and offshore
    facilities, and to contain such discharges. The President has delegated
    the authority to regulate non-transportation-related onshore facilities
    landward of the coastline, under section 311(j)(1)(C) to EPA.
        In February 2016, the EPA agreed, as part of a court-ordered
    settlement, to propose hazardous substance spill-prevention rules for
    industrial sites by June of 2018, and to issue a final rule in 2019.
    After soliciting input about hazardous substance spills across the
    country, the EPA issued a proposed rule to establish no new
    requirements related to spills of hazardous substances under the Clean
    Water Act. This in contradiction to the letter of the law and
    Congress's directive.
        The EPA's own analysis determined that 2,491 chemical releases
    between 2007-2016 were Clean Water Act hazardous substances that
    originated from non-transportation related sources. In looking at the
    monetized damages of the spills, EPA failed to consider ``water supply
    contamination.'' Given that the 2014 spill by a chemical storage
    facility in West Virginia left more than 300,000 residents without
    drinking water for at least a week, it is surprising that EPA would
    fail to look at ``water supply contamination'' when estimating
    monetized damages of spills.
        a.  In EPA's release announcing that this administration would no
    longer take action to prevent contamination of drinking water sources,
    your former boss, Scott Pruitt, suggested that such measures would be
    ``duplicative and unnecessary''. However, according to EPA's own data,
    since the Charleston spill, there have been an additional 600 chemical
    spills into local waterways--14 of which were severe enough to
    contaminate local drinking water supplies. If we have seen an
    additional 600 chemical spills in just a 3-year period, explain to me
    how additional measures to reduce or eliminate chemical spills is
    ``unnecessary''?
        Answer. EPA recognizes the concerns regarding threats to drinking
    water systems. In the 40 years since Clean Water Act (CWA) section
    311(j)(1)(C) was enacted by Congress, multiple statutory and regulatory
    requirements have been established under different federal authorities
    which serve, both directly and indirectly, to prevent and contain CWA
    Hazardous Substances (CWA HS) discharges.
        Those statutory and regulatory requirements include:

          CWA National Pollutant Discharge Elimination System
    Regulations \8\
    ---------------------------------------------------------------------------
        \8\ CWA National Pollutant Discharge Elimination System Regulations
    Pretreatment Standards (40 CFR Part 403) and Multi-Sector General
    Permit (MSGP) for Industrial Stormwater, issued by EPA in 2015. The
    MSGP is a general permit that is available to facilities that do not
    discharge to a state with NPDES permitting authority. Because many
    states model their industrial stormwater permits after EPA's permit, it
    was used to identify prevention requirements likely to be present in
    NPDES industrial stormwater permits issued by states.
    ---------------------------------------------------------------------------
          Toxic Substances Control Act Polychlorinated Biphenyl
    Regulations \9\
    ---------------------------------------------------------------------------
        \9\ 40 CFR 761
    ---------------------------------------------------------------------------
          CWA Effluent Guidelines and Standards for various point
    source categories \10\
    ---------------------------------------------------------------------------
        \10\ Ore Mining and Dressing Point Source Category (40 CFR Part
    440), Transportation Equipment Cleaning Point Source Category (40 CFR
    Part 442), Construction and Development Point Source Category (40 CFR
    Part 450), Concentrated Aquatic Animal Production Point Source Category
    (40 CFR Part 451), and Pesticide Chemicals Point Source Category (40
    CFR Part 455).
    ---------------------------------------------------------------------------
          Risk Management Program Rule \11\
    ---------------------------------------------------------------------------
        \11\ 40 CFR Part 68
    ---------------------------------------------------------------------------
          Spill Prevention, Control, and Countermeasure Rule \12\
    ---------------------------------------------------------------------------
        \12\ 40 CFR Part 112
    ---------------------------------------------------------------------------
          Pesticide Regulations \13\
    ---------------------------------------------------------------------------
        \13\ Pesticide Management Regulation (40 CFR Part 165) and
    Pesticide Worker Protection Standard (40 CFR Part 170).
    ---------------------------------------------------------------------------
          Resource Conservation and Recovery Act Regulations \14\
    ---------------------------------------------------------------------------
        \14\ RCRA Generators Regulation (40 CFR Part 262) and RCRA
    Treatment, Storage, and Disposal (TSD) Regulations (40 CFR Parts 264
    and 265).
    ---------------------------------------------------------------------------
          Underground Storage Tank Rule \15\
    ---------------------------------------------------------------------------
        \15\ 40 CFR Part 280
    ---------------------------------------------------------------------------
          Emergency Planning and Community Right-to-Know Act
    Regulations \16\
    ---------------------------------------------------------------------------
        \16\ EPCRA Planning Rule (40 CFR Part 355) and EPCRA Reporting Rule
    (40 CFR Part 370).
    ---------------------------------------------------------------------------
          Pulp and Paper Effluent Guidelines \17\
    ---------------------------------------------------------------------------
        \17\ 40 CFR Part 430

        EPA identified nine program elements \18\ that are commonly
    contained in EPA regulatory programs provisions and that adequately
    serve to prevent, contain, or mitigate CWA HS. EPA's analysis indicated
    that these nine program elements are reflected in the framework of
    EPA's existing regulatory requirements identified above.
    ---------------------------------------------------------------------------
        \18\ The program elements identified are (1) Safety Information,
    (2) Hazard Review, (3) Mechanical Integrity, (4) Personnel Training,
    (5) Incident Investigations, (6) Compliance Audits, (7) Secondary
    Containment, (8) Emergency Response Plan, and (9) Coordination of the
    Emergency Response Program with State/Local Responders.
    ---------------------------------------------------------------------------
        For this rulemaking, EPA analyzed CWA HS discharges reported to the
    National Response Center (NRC) over a 10-year period between 2007-2016,
    as well as voluntary survey data, to estimate the frequency, impacts,
    and causes of discharges to identify what spill prevention requirements
    are needed. For this period, EPA identified less than one percent of
    all reports to the NRC for that period as CWA HS discharges originating
    from non-transportation-related sources, with less than five percent of
    those discharges having reported impacts. EPA concluded that based on
    the reported frequency and impacts of identified CWA HS discharges, the
    existing regulatory framework adequately serves to prevent and contain
    CWA HS discharges.
        EPA is unable to identify the 600 chemical spills cited in the
    question, and in what three-year period these spills occurred, so the
    Agency is unable to provide additional clarification. The question also
    cited the January 2014 chemical spill in Charleston, WV. It is
    important to clarify that had EPA reached a different conclusion in
    this rulemaking and imposed additional requirements under CWA
    311(j)(1)(c), those requirements would not apply to the Charleston, WV
    spill. EPA notes that, in addition to the regulatory structure already
    identified herein, recent statutory amendments to the Emergency
    Planning and Community Right-To-Know (EPCRA) focus on notifications to
    State drinking water primacy agencies, as well as on providing
    community water systems with hazardous chemical inventory data.\19\
    ---------------------------------------------------------------------------
        \19\ For more information, see America's Water Infrastructure Act,
    Amendments to the Emergency Planning and Community Right-to-Know Act, A
    Guide for SERCs, TERCs, and LEPCs [https://www.epa.gov/sites/
    production/files/2019-12/documents/awia_fact_sheet_a_guide_
    for_sercs_tercs_lepcs.pdf].
    ---------------------------------------------------------------------------
        In summary, based on a review of the existing EPA programs in
    conjunction with the frequency, impacts, and causes of reported CWA HS
    discharges, the Agency believes the existing regulatory framework meets
    the requirements of CWA section 311(j)(1)(C) and is serving to prevent,
    contain, and mitigate CWA HS discharges. Therefore, in August 2019, EPA
    determined to not establish new discharge prevention and containment
    regulatory requirements under CWA section 311.
        For more information on the framework of federal programs and
    corresponding regulations, please see the Background Information
    Document: Review of Relevant Federal and State Regulations \20\ and the
    Supplemental Background Information Document: Additional Review of
    Relevant EPA Federal and State Regulations in the docket (Docket ID No.
    EPA-HQ-OLEM-2018-0024).\21\ For a review of the analyses of the
    frequency of spills, the causes, and the impacts, see the Regulatory
    Impact Analysis (RIA).\22\ This information can be found in in Appendix
    A of the RIA for the final rule.
    ---------------------------------------------------------------------------
        \20\ https://www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-
    0113
        \21\ https://www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-
    0187
        \22\ https://www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-
    0111

        b.  The number of releases (2,491) between 2007-2016 is likely an
    underestimate. Even if it this is an accurate number, which EPA admits
    it has incomplete information, what would be the annual number of Clean
    Water Act hazardous substances releases before the EPA would decide to
    use its authority under Section 211(j)(1)(C) and develop comprehensive
    hazardous-substance spill-prevention regulations? What is an acceptable
    number of hazardous substance spills in your mind? Alternatively, what
    is an unacceptable number of spills that would push you to reverse
    course and pursue protective standards under the Clean Water Act?
        Answer. As described above, EPA believes that the identified
    existing EPA regulatory programsadequately serve to prevent, contain,
    and mitigate CWA HS discharges.

        c.  You mentioned existing regulations for hazardous substance
    spills. EPA claims that existing requirements adequately cover the nine
    program elements that EPA believes to be key for a discharge and
    accident prevention program. What percentage of facilities are subject
    to requirements covering all nine of those program elements for all the
    hazardous substances they store? If spills are continuing to occur, it
    would seem the existing requirement are insufficient. Why is EPA not
    pursuing a comprehensive scheme under the Clean Water Act?
        Answer. EPA used EPCRA Tier II information as the best available
    data to estimate the universe of potentially affected facilities by
    identifying those with CWA HS onsite. EPA's analysis indicates that,
    for all nine program elements, there are cumulative regulatory
    requirements for accident and discharge prevention relevant to CWA HS
    under the existing framework. Based on a review of the discharges and
    the frequency, causes, and impacts of those discharges, EPA believes
    that the existing framework, as implemented through existing EPA
    regulatory programs, adequately serves to prevent, contain, or mitigate
    CWA HS discharges under section 311(j)(1)(C).
        It is important to note that, while the final action does not
    establish any new requirements, the CWA prohibits discharges of CWA HS
    in quantities that may be harmful, with exceptions only where otherwise
    permitted or under such circumstances or conditions as the President
    may, by regulation, determine not to be harmful, irrespective of
    whether facilities are subject to hazardous substance spill prevention
    regulations.

        d.  EPA cited spill prevention regulations for oil as one of the
    existing requirements. What is the justification for refusing to issue
    regulations for hazardous substances on regulations for a different
    hazardous substance, like oil?
        Answer. The CWA HS spill prevention final action is not based on
    any individual provision and/or program preventing CWA HS discharges,
    but rather on how the cumulative framework of key prevention elements,
    as implemented through existing EPA regulatory programs, adequately
    serves to prevent, contain, or mitigate CWA HS discharges under section
    311(j)(1)(C).

    Questions from Hon. Eddie Bernice Johnson to Hon. David Ross, Assistant
      Administrator, Office of Water, U.S. Environmental Protection Agency

        Question 1. In your written testimony, you state that EPA's core
    mission is ``protecting public health and the environment every single
    day.'' Can you explain how EPA is achieving its core mission by
    repealing the 2015 Clean Water Rule and narrowing the definition of
    ``Waters of the United States'' that will reduce the bodies of water
    protected by the Clean Water Act, some of which are relied upon by
    millions of Americans as their source of water supply?
        Answer. EPA's core mission is to protect public health and the
    environment by using the statutory authorities that Congress provides
    to the Agency. Congress recognizes that there is more to environmental
    protection than exclusive federal authority--the states and tribes are
    partners that can and do regulate their own water resources.
        EPA and the Department of the Army finalized a definition of
    ``waters of the United States'' that is superior to both the 1986 and
    2015 Rules. The agencies revised previous regulatory definitions of
    this term to distinguish between water that is a ``water of the United
    States'' subject to federal regulation under the Clean Water Act (CWA
    or Act) and water or land that is subject to exclusive state or tribal
    jurisdiction, consistent with the scope of jurisdiction authorized
    under the CWA and the direction in the Act to ``recognize, preserve,
    and protect the primary responsibilities and rights of States to . . .
    plan the development and use (including restoration, preservation, and
    enhancement) of land and water resources . . . .'' 33 U.S.C. 1251(b).
        In developing an appropriate regulatory framework for the final
    rule, the agencies recognize and respect the primary responsibilities
    and rights of states to regulate their land and water resources as
    reflected in CWA section 101(b). 33 U.S.C. 1251(b); see also id. at
    1370. The oft-quoted objective of the CWA to ``restore and maintain the
    chemical, physical, and biological integrity of the Nation's waters,''
    id. at 1251(a), must be implemented in a manner consistent with
    Congress' policy directives to the agencies. The Supreme Court long ago
    recognized the distinction between federal waters traditionally
    understood as navigable and waters ``subject to the control of the
    States.'' The Daniel Ball, 77 U.S. (10 Wall.) 557, 564-65 (1870). Over
    a century later, the Supreme Court in SWANCC reaffirmed the State's
    ``traditional and primary power over land and water use.'' SWANCC, 531
    U.S. at 174; accord Rapanos, 547 U.S. at 738 (Scalia, J., plurality).
        Ensuring that states and tribes retain authority over their land
    and water resources, reflecting the policy in section 101(b), helps
    carry out the overall objective of the CWA and ensures that the
    agencies are giving full effect and consideration to the entire
    structure and function of the Act. See, e.g., Rapanos, 547 U.S. at 755-
    56 (Scalia, J., plurality) (``[C]lean water is not the only purpose of
    the statute. So is the preservation of primary state responsibility for
    ordinary land-use decisions. 33 U.S.C. 1251(b).'') (emphasis in
    original). That includes the dozens of nonregulatory grant, research,
    nonpoint source, groundwater, and watershed planning programs that were
    intended by Congress to assist the states in controlling pollution in
    the nation's waters, not just its navigable waters. These non-
    regulatory sections of the CWA reveal Congress' intent to restore and
    maintain the integrity of the nation's waters using federal assistance
    to support state, tribal, and local partnerships to control pollution
    of the nation's waters in addition to a federal regulatory prohibition
    on the discharge of pollutants to its navigable waters. See e.g., id.
    at 745 (``It is not clear that the state and local conservation efforts
    that the CWA explicitly calls for, see 33 U.S.C. 1251(b), are in any
    way inadequate for the goal of preservation.''). Regulating all of the
    nation's waters using the Act's federal regulatory mechanisms would
    call into question the need for the more holistic planning provisions
    of the Act and the state partnerships they entail. Therefore, by
    recognizing the distinctions between the nation's waters and its
    navigable waters and between the overall objective and goals of the CWA
    and the specific policy directives from Congress, the agencies can
    fully implement the entire structure of the Act while respecting the
    specific word choices of Congress. See, e.g., Bailey v. United States,
    516 U.S. at 146 (1995); Nat'l Fed'n of Indep. Bus. v. Sebelius, 567
    U.S. at 544 (2012).

        Question 2. In your written testimony, you state that your Office
    is focused on restoring the rule of law. However, every action EPA has
    taken is to undermine the safety of clean drinking water. How can you
    say that your Office is restoring the rule of law when it is
    overturning decades of precedence and eroding the scope of the Clean
    Water Act?
        Answer. As I said in my written testimony, I am thankful for the
    dedicated professionals working within EPA's Office of Water for their
    service to this country and for their passion in delivering on the
    Agency's core mission of protecting public health and the environment
    every single day. America's drinking and surface water quality is much
    better today than at any point during the history of our Agency.
        EPA is precluded from exceeding its authority under the CWA, Safe
    Drinking Water Act, and any other federal law the Agency administers to
    achieve specific scientific, policy, or other outcomes. The Agency can
    only exercise the authority that Congress delegates to it. EPA is not
    eroding the scope of the CWA, it is finally providing clarity and
    predictability tethered to a strong legal foundation that is designed
    to ensure protection of our nation's navigable waters, as Congress
    intended.

        Question 3. In your written testimony, you state that the purpose
    of Executive Order 13868 was to accelerate the construction of
    pipelines as it related to section 401 of the Clean Water Act. Isn't
    ``acceleration to construct pipelines'' just a code word for ignoring
    governing environmental protections to benefit industry polluters?
        Answer. No. EPA's section 401 rulemaking seeks to increase the
    transparency and efficiency of the 401 certification process and to
    promote the timely review of infrastructure projects, while continuing
    to ensure that Americans have clean water for drinking and recreation.

          Question from Hon. Sam Graves to Hon. David Ross, Assistant
      Administrator, Office of Water, U.S. Environmental Protection Agency

        Question 1. In Ms. Bellon's oral testimony, she stated that EPA
    recently repealed a water quality rule that the State of Washington
    spent ten years adopting that addresses water quality issues related to
    the State of Washington's citizens fish consumption. Can you explain
    how EPA's repeal of the State of Washington's previously adopted water
    quality standards is consistent with the concepts of cooperative
    federalism in the Clean Water Act which this Administration has
    asserted is a priority?
        Answer. EPA has not repealed and is not proposing to repeal any
    water quality rules that the State of Washington adopted. To the
    contrary, in May 2019, EPA approved a suite of Clean Water Act (CWA)
    human health criteria that were developed by the State of Washington
    through a lengthy stakeholder process. EPA had originally disapproved
    many of those criteria, but upon reconsideration, found the State's
    standards to be based on sound science and protective of the State's
    designated uses.
        Because EPA approved Washington's criteria, EPA proposed to
    withdraw its corresponding federally-promulgated human health criteria
    for waters under the State of Washington's jurisdiction; EPA's final
    rule withdrawing the federal criteria was published in the Federal
    Register on May 13, 2020 (85 FR 28494). Once EPA's withdrawal of its
    federally-promulgated criteria goes into effect, the State of
    Washington's criteria will be effective for CWA purposes. EPA is
    respectful of the state's primary role in determining its water quality
    standards and its discretion in making resource- and risk-management
    decisions related to protecting the health of its citizens. This action
    will restore the balance mandated by the CWA, in which the states lead
    the standards-setting process.

        Questions from Hon. Peter A. DeFazio to Maia Bellon, Director,
                   Department of Ecology, State of Washington

        Question 1. In your testimony, you mention that the Trump
    administration is repealing the State of Washington's water quality
    standards to protect human health from toxics in fish.
        a.  What legal standing does the Trump administration have to--or
    by what legal standards can the Trump administration--repeal the
    State's previously approved water quality standards?
        b.  If there is no legal standard for repealing these standards,
    surely they are basing their decision on science. What science has the
    Trump administration presented to repeal the State's water quality
    standards?
        Answer (a.-b.). The administration has no legal standing or
    standards by which they can roll back Washington State's fish
    consumption rule. That is why we have filed litigation against EPA to
    stop their unlawful action, and asked them to cease course.
        Under the Clean Water Act, 33 USC Sec.  1313(c), Congress provided
    two circumstances under which EPA can revise a state's existing water
    quality standards. Neither of these circumstances exist. The first
    occurs when a state submits new or revised water quality standards to
    EPA for review. Washington does not have a pending request to EPA to
    revise or amend our current standards. Three years ago, in August of
    2016, we submitted a new rule to EPA for review. Three months later, in
    November 2016, EPA updated and finalized our current rule. That rule
    work has been complete and final for three years. The second
    circumstance is where Congress authorized EPA to revise a state's
    existing water quality standards only if EPA dete1mines that revised or
    new standards are necessary to meet the requirements of the Clean Water
    Act. 33 USC Sec.  1313(c)(4)(B). In its May 2019 decision to repeal
    Washington's existing water quality standards, EPA did not determine
    that revised or new standards are necessary to meet the requirements of
    the Clean Water Act.
        Instead of complying with either of the procedures authorized by
    Congress, EPA has taken the position that it has ``inherent authority''
    to ignore the procedures and timelines established by Congress and roll
    back Washington's existing standards at any time and for whatever
    reason it chooses. This also addresses the second part of your
    question.
        Washington's 2016 rule meets the requirements of the Clean Water
    Act. EPA is not claiming to have repealed Washington's rule for
    scientific reasons. Along with its notice of repeal, EPA released a
    Technical Support Document that does not contain any new science or
    point to any specific science as a basis for their repeal.

     Question from Hon. Sam Graves to Maia Bellon, Director, Department of
                          Ecology, State of Washington

        Question 1. In your oral testimony, you stated that EPA recently
    repealed a water quality rule that the State of Washington spent ten
    years adopting and that addresses water quality issues related to the
    State of Washington's citizens fish consumption. Can you provide
    additional details on the State of Washington's decade-long stakeholder
    engagement and effort to develop and promulgate the standards that EPA
    recently repealed?
        Answer. Washington's process to develop our fish consumption rule
    began in 2010. We brought together stakeholders from the regulated
    community (including businesses and municipalities) and the
    enviromnental community as well as Native American tribes to develop a
    rule that would work for Washingtonians.
        In August of 2016, Washington State adopted a new fish consumption
    rule and submitted it to EPA for review and approval. That November,
    EPA issued an updated rule. Once again, we worked alongside similar
    stakeholders and tribes--and launched a public process--to chart a
    common path forward to implement the final 2016 rule that would both
    keep our water clean and help the regulated community achieve
    compliance as quickly as possible. We have been implementing that rule
    without issue for three years now. EPA not only acted without first
    consulting the state of Washington, they did so over our numerous
    objections and refused to meet with us to hear our concerns. This is
    not the Washington way.

                                [all]