[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
             
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     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\
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    \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
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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\
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    \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).
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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\
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    \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.
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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.
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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.
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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
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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\
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    \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).
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                               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.
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    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).
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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%2Finamdar
%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\
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    \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).
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    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\
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    \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).
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    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.
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    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\
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    \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).
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    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\
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    \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).
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    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).
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    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\
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    \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).
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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).
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    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.
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    \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.

                                    
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