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NAVIGATING THE CLEAN WATER ACT: 

IS WATER WET? 

HEARING 

BEFORE THE

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JULY 9, 2014 

Serial No. 113–84 

Printed for the use of the Committee on Science, Space, and Technology 

( 

Available via the World Wide Web: http://science.house.gov 
(II) 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

HON. LAMAR S. SMITH, Texas, Chair 

DANA ROHRABACHER, California 

RALPH M. HALL, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

FRANK D. LUCAS, Oklahoma 

RANDY NEUGEBAUER, Texas 

MICHAEL T. MCCAUL, Texas 

PAUL C. BROUN, Georgia 

STEVEN M. PALAZZO, Mississippi 

MO BROOKS, Alabama 

RANDY HULTGREN, Illinois 

LARRY BUCSHON, Indiana 

STEVE STOCKMAN, Texas 

BILL POSEY, Florida 

CYNTHIA LUMMIS, Wyoming 

DAVID SCHWEIKERT, Arizona 

THOMAS MASSIE, Kentucky 

KEVIN CRAMER, North Dakota 

JIM BRIDENSTINE, Oklahoma 

RANDY WEBER, Texas 

CHRIS COLLINS, New York 

BILL JOHNSON, Ohio 

EDDIE BERNICE JOHNSON, Texas 

ZOE LOFGREN, California 

DANIEL LIPINSKI, Illinois 

DONNA F. EDWARDS, Maryland 

FREDERICA S. WILSON, Florida 

SUZANNE BONAMICI, Oregon 

ERIC SWALWELL, California 

DAN MAFFEI, New York 

ALAN GRAYSON, Florida 

JOSEPH KENNEDY III, Massachusetts 

SCOTT PETERS, California 

DEREK KILMER, Washington 

AMI BERA, California 

ELIZABETH ESTY, Connecticut 

MARC VEASEY, Texas 

JULIA BROWNLEY, California 

ROBIN KELLY, Illinois 

KATHERINE CLARK, Massachusetts 
(III) 

C O N T E N T S 

July 9, 2014 

Page 

Witness List ............................................................................................................. 2 

Hearing Charter ...................................................................................................... 3 

Opening Statements 

Statement by Representative Lamar S. Smith, Chairman, Committee on 

Science, Space, and Technology, U.S. House of Representatives ..................... 14 

Written Statement ............................................................................................ 15 

Statement by Representative Suzanne Bonamici, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 16 

Written Statement ............................................................................................ 17 

Witnesses: 

The Honorable Robert W. Perciasepe, Deputy Administrator, U.S. Environmental Protection Agency 

Oral Statement ................................................................................................. 18 

Submitted Biography ....................................................................................... 21 

Discussion ................................................................................................................. 32 

Appendix I: Answers to Post-Hearing Questions 

The Honorable Robert W. Perciasepe, Deputy Administrator, U.S. Environmental Protection Agency .................................................................................... 72 

Appendix II: Additional Material for the Record 

Written statement submitted by Representative Eddie Bernice Johnson, 

Ranking Member, Committee on Science, Space, and Technology, U.S. 

House of Representatives .................................................................................... 110 

Letters submitted by Representative Lamar S. Smith, Chairman, Committee 

on Science, Space, and Technology, U.S. House of Representatives ................ 111 

Letters submitted by Representative Kevin Cramer, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 118 

Letters submitted by Representative Paul C. Broun, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 122 

Letter submitted by Representative Ralph M. Hall, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 140 

Letter submitted by Representative Randy Hultgren, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 142 

Letters submitted by Representative Larry Bucshon, Committee on Science, 

Space, and Technology, U.S. House of Representatives .................................... 144 

Letter submitted by Representative Mo Brooks, Committee on Science, Space, 

and Technology, U.S. House of Representatives ............................................... 161 

Letters submitted by Representative David Schweikert, Committee on 

Science, Space, and Technology, U.S. House of Representatives ..................... 163 

(1) 

NAVIGATING THE CLEAN WATER ACT: 

IS WATER WET? 

WEDNESDAY, JULY 9, 2014 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, 

Washington, D.C. 

The Committee met, pursuant to call, at 10:02 a.m., in Room 

2318 of the Rayburn House Office Building, Hon. Lamar Smith 

[Chairman of the Committee] presiding. 

Chairman SMITH. The Committee on Science, Space, and Technology will come to order. 
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Chairman SMITH. Welcome to today’s hearing titled ‘‘Navigating 

the Clean Water Act: Is Water Wet?’’ I will recognize myself for an 

opening statement and then the ranking member for hers. 

A year ago, this Committee issued its first subpoena in over two 

decades because the Environmental Protection Agency refused to 

make public the data it claims justifies its costly air regulations. 

The EPA finally admitted that in many cases it never even had the 

data it uses to support its billion-dollar mandates. Now, once again, 

the EPA has avoided open debate in its rush to implement the 

President’s radical agenda. The EPA wrote its new waters of the 

U.S. rule without even waiting for the expert advice of the Agency’s 

own Science Advisory Board. 

The Science Advisory Board exists to provide independent advice 

to the EPA and to Congress. It is the job of these experts to review 

the underlying science. Not only did the EPA publish its rule before 

the Board had an opportunity to review the report, but when this 

Committee sent official questions to the Board as its review began, 

the EPA stepped in to prevent the experts from responding. The 

Obama Administration continues to undermine scientific inquiry in 

order to fast-track its partisan agenda. 

Even though Clean Water Act jurisdiction is ultimately a legal 

question, the Agency’s refusal to wait for the science undercuts the 

opportunity for informed policy decisions. The EPA’s rule is so 

vague that it does little more than extend an open invitation to 

trial lawyers and government drones. Meanwhile, the EPA has offered empty assurances. Last week the Agency released a fact 

sheet that ended with a disclaimer saying that its statements are 

not binding. The American people are tired of an Administration 

that makes promises with its fingers crossed behind its back. 

The EPA does not provide real clarity about what is or isn’t 

water. Instead, the Agency gives itself extraordinary power to pick 

and choose on a case-by-case basis. In fact, the proposed rule is 370 

pages but it never actually defines ‘‘water.’’ According to the EPA, 

59 percent of the streams they may claim to regulate, aren’t always 

wet. The EPA states that these places often only become wet after 

rain events and in some cases are so tiny or temporary that they 

don’t even appear on maps. The Agency’s Web site says, ‘‘They 

could be a drizzle of snowmelt that runs down a mountainside 

crease, a small spring-fed pond, or a depression in the ground that 

fills with water after every rain and overflows into the creek 

below.’’ 

The practical implications of this new rule are troubling for private property owners. How do we even know when and where these 

tiny drizzles of water might appear? Americans deserve to know 

what is punishable so they can live without fear of arbitrary persecutions. 

Take a look at a map from the EPA’s draft report, and this is 

on the screen to either side of us. The image shows tributaries in 

red and larger streams in blue that the EPA could consider claiming in the western part of the United States. Before the EPA invades the back yards of Americans, they should tell them what 

they are really doing. 

When Congress enacted the Clean Water Act, it was about water, 

not land. But the EPA’s rewriting of the law is a terrifying expan-
15 

sion of federal control over the lands owned by the American people. 

The EPA is on a regulation rampage, and this new water rule 

proves it. 

[The prepared statement of Mr. Smith follows:] 

PREPARED STATEMENT OF CHAIRMAN LAMAR S. SMITH

A year ago, this Committee issued its first subpoena in over two-decades because 

the Environmental Protection Agency (EPA) refused to make public the data it 

claims justifies its costly air regulations. The EPA finally admitted that in many 

cases it never even had the data it uses to support its billion-dollar mandates. 

Now, once again, the EPA has avoided open debate in its rush to implement the 

President’s radical agenda. The EPA wrote its new ‘‘waters of the U.S.’’ rule without 

even waiting for the expert advice of the Agency’s own Science Advisory Board. 

The Science Advisory Board exists to provide independent advice to the EPA and 

to Congress. It is the job of these experts to review the underlying science. Not only 

did the EPA publish its rule before the Board had an opportunity to review the report, but when this Committee sent official questions to the Board as its review 

began, the EPA stepped in to prevent the experts from responding. The Obama administration continues to undermine scientific inquiry in order to fast-track its partisan agenda. 

Even though Clean Water Act jurisdiction is ultimately a legal question, the 

Agency’s refusal to wait for the science undercuts the opportunity for informed policy decisions. 

The EPA’s rule is so vague that it does little more than extend an open invitation 

to trial lawyers and government drones. Meanwhile, the EPA has offered empty assurances. Last week the Agency released a fact-sheet that ended with a disclaimer 

saying that its statements are not binding. The American people are tired of an Administration that makes promises with its fingers crossed behind its back. The EPA 

does not provide real clarity about what is or isn’t ‘‘water.’’ Instead, the Agency 

gives itself extraordinary power to pick and choose on a case-by-case basis. In fact, 

the proposed rule is 370 pages but it never actually defines ‘‘water.’’ 

According to the EPA, 59% of the ‘‘streams’’ they may claim to regulate aren’t always wet. The EPA states that these places often only become wet after rain events 

and in some cases are so tiny or temporary that they don’t even appear on maps. 

The Agency’s website says, ‘‘They could be a drizzle of snowmelt that runs down 

a mountainside crease, a small spring-fed pond, or a depression in the ground that 

fills with water after every rain and overflows into the creek below.’’ 

The practical implications of this new rule are troubling for private property owners. How do we even know when and where these tiny ‘‘drizzles’’ of water might appear? Americans deserve to know what is punishable so they can live without fear 

of arbitrary prosecutions. 

Take a look at a map from the EPA’s draft report. The image shows tributaries 

in red and larger streams in blue that the EPA could consider claiming in the western part of the U.S. 
16 

[For a better image of the map please visit http://science.house.gov/sites/republicans.science.house.gov/files/documents/HHRG-113-%20SY-WState-S000244- 

20140709.pdf] 

Before the EPA invades the back yards of Americans, they should tell them what 

they are really doing. When Congress enacted the Clean Water Act, it was about 

water, not land. But the EPA’s re-writing of the law is a terrifying expansion of federal control over the lands owned by the American people. The EPA is on a regulation rampage, and this new water rule proves it. 

Chairman SMITH. That concludes my remarks, and the gentlewoman from Oregon, Ms. Bonamici, is recognized for her opening 

statement. 

Ms. BONAMICI. Thank you very much, Chairman Smith, for holding this morning’s hearing to discuss the rule proposed by the 

Army Corps and the EPA to define the term ‘‘waters of the United 

States’’ in the Clean Water Act. I would also like to welcome Deputy Administrator Mr. Perciasepe and thank him for appearing before us this morning. 

Access to clean water is essential to economic growth. A study by 

the World Health Organization found that every dollar invested in 

water and sanitation yields economic benefits of between $7 and 

$12. Most Americans are lucky enough to be able to simply turn 

on a tap and have water that is safe to drink. Unfortunately, this 

is not the case everywhere. 

Although it is difficult to put a specific figure on the value of 

water to the United States economy, studies have shown that clean 

water is a prerequisite for nearly every industry from agriculture 

to manufacturing to commercial fisheries to tourism. With 3.5 million miles of rivers and streams, more than 100 million acres of 

wetlands, and 39.9 million acres of lakes and reservoirs in the 

United States, managing the availability and quality of this finite 
17 

resource can be a challenge. And though it may be a challenge, it 

is one that we must accept. 

As we will no doubt hear today, these streams, lakes, and wetlands offer a wide variety of benefits to our constituents. For example, wetlands can reduce the possibility of flooding by storing excess water after a heavy rain. They can also be a source of water 

during times of drought. Wetlands and streams improve water 

quality by trapping sediments and filtering out pollutants and they 

serve as a critical habitat for fish and other aquatic life, increasing 

biological diversity. 

According to the EPA, more than 100 stakeholders, from state 

and local governments to industry and agricultural associations to 

environmental groups, have all asked the EPA and the Army Corps 

to provide clarity about what waters are and are not within the jurisdiction of the Clean Water Act. And that, Mr. Chairman, is why 

I am glad we are having this hearing today to discuss the need for 

that clarity. And although I know that not all of these organizations are supportive of the proposed rule, the goal of the agencies 

is to provide all interested parties with the clarity that they need 

and deserve. 

Mr. Chairman, some of my constituents have expressed concern 

about the potential impact of the proposed rule, while others have 

expressed strong support for the rule. I welcome the opportunity 

provided by today’s hearing to learn more about the details of the 

proposed rule. I know that the comment period is going on until 

October, and this gives us an opportunity to clarify some of the 

misinformation that has been circulating about the proposal and 

also to provide an opportunity to let the public know about the intent of clarifying what clean waters are within the Clean Water 

Act. 

So I thank you very much, Mr. Chairman. I look forward to the 

Deputy Administrator’s testimony, and I yield back the balance of 

my time. 

[The prepared statement of Ms. Bonamici follows:] 

PREPARED STATEMENT OF REPRESENATIVE SUZANNE BONAMICI

Thank you, Chairman Smith for holding this morning’s hearing to discuss the rule 

proposed by the Army Corps and EPA to define the term ‘‘waters of the United 

States’’ in the Clean Water Act. I’d also like to welcome Mr. Perciasepe and thank 

him for appearing before us this morning. 

Access to clean water is essential to economic growth. A study by the World Health Organization found that every $1 invested in water and sanitation yields 

economic benefits of between $7 and $12. Most Americans are lucky enough to be 

able to simply turn on the tap and have water that is safe to drink. Unfortunately, 

this is not the case everywhere. Although it is difficult to put a specific figure on 

the value of water to the U.S. economy, studies have shown that clean water is a 

prerequisite for nearly every industry from agriculture and manufacturing to commercial fisheries to tourism. With 3.5 million miles of rivers and streams, more than 

100 million acres of wetlands, and 39.9 million acres of lakes and reservoirs in the 

United States, managing the availability and quality of this finite resource can be 

a challenge. 

Though it may be a challenge, it is one that we must accept. As we will no doubt 

hear today, these streams, lakes, and wetlands offer a wide variety of benefits to 

our constituents. For example, wetlands can reduce the possibility of flooding by 

storing excess water after a heavy rain; they can also be a source of water during 

times of drought. Wetlands and streams improve water quality by trapping sediments and filtering out pollutants and they serve as critical habitat for fish and 

other aquatic life, increasing biological diversity. 
18 

According to the EPA, more than 100 stakeholders, from state and local governments to industry and agriculture associations to environmental groups, have asked 

the EPA and the Army Corps to provide clarity about what waters are and are not 

within the jurisdiction of the Clean Water Act. And although I know that not all 

of these organizations are supportive of the proposed rule, the goal of the agencies 

is to provide all interested parties the clarity that they need and deserve. 

Mr. Chairman, some of my constituents have expressed concern about the potential impact the proposed rule may have, while others have expressed strong support 

for the proposed rule. I welcome the opportunity provided by today’s hearing to 

learn more about the details of the proposed rule as well as the opportunity to clarify some of the misinformation that has been circulating about the proposal. 

Thank you, Mr. Chairman and I yield back the balance of my time. 

Chairman SMITH. Thank you, Ms. Bonamici. 

Without objection, let me put in the record several letters that 

we received, and they are from the Texas and Southwest Cattle 

Raisers Association, the Texas Winery, the Texas Association of 

Business and the Texas Farm Bureau. 

[The appears in Appendix II] 

Chairman SMITH. Let me now introduce our only witness today, 

and he is Mr. Bob Perciasepe, Deputy Administrator for the Environmental Protection Agency. He was appointed to this position by 

President Obama in 2009. Mr. Perciasepe previously served as a 

top EPA official in the Administration of President Bill Clinton, 

who appointed him to serve as the nation’s top water official and 

then as the senior official responsible for air quality across the 

United States. Prior to being named to his current position, he was 

Chief Operating Officer at the National Audubon Society, one of 

the world’s leading environmental organizations. He has also held 

top positions at the state and municipal government level including 

Secretary of the Environment for the State of Maryland. Mr. 

Perciasepe received his bachelor’s degree in natural resources from 

Cornell University and his master’s degree in planning and public 

administration from Syracuse University. 

We welcome you today and appreciate your testimony and look 

forward to your comments, and please proceed. 

TESTIMONY OF HON. ROBERT W. PERCIASEPE, 

DEPUTY ADMINISTRATOR, 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY 

Mr. PERCIASEPE. Thank you, Mr. Chairman and Madam Ranking 

Member. I really appreciate the introductions and appreciate the 

opportunity to be here today. 

Now, I believe, as I think everyone else does, that Americans 

want clean and safe waters for ourselves, for our economy, for our 

environment and for the future uses that we will need, and as we 

are talking about today, EPA and the U.S. Army Corps of Engineers are undertaking a process to clarify the geographic scope of 

the Clean Water Act and to improve regulations that have been in 

place for 30 years. The existing regulations on the books have been 

in place for 30 years, and the proposed rule will provide families, 

manufacturers, farmers, outdoor recreation, energy producers with 

clean water. 

The written testimony that I submitted will provide more details 

about the proposed rule including the Agency’s goals to respond to 
19 

requests of stakeholders across the country and to make the process of identifying waters protected under the Clean Water Act easier to understand, more predictable and more consistent with the 

law and recent Supreme Court decisions. We believe this rulemaking will minimize delays and costs and improve predictability, 

clarity, consistency for everyone who may or may not need a Clean 

Water Act permit. It is important to note that this is identifying 

of where we will regulate the discharge of pollutants, not what we 

regulate what is going on on the land. 

I will focus my opening remarks here on trying to address some 

of the disinformation regarding potential effects of this rulemaking, 

and I am concerned that that information that is incorrect is having the effect of distracting a real public and national debate and 

discussion that needs to take place on the legal policy and scientific 

underpinnings of how we run the Clean Water Act and the protections for clean water in the country. The agencies are continuing 

to meet with Americans across the country including farmers—the 

Administrator, Gina McCarthy, is in Missouri today meeting with 

farmers—energy companies, small businesses, local governments, 

sportsmen, developers and others to get their comments—remember, this is a proposal—to answer their questions about this rule. 

We are hearing from the public directly, personally on how to improve the rule. 

But some of the misinformation is something that we have to cut 

through, and I am hoping we will have some chance to do that 

today. I have heard personally, for example, and when we are out 

talking to folks that this regulation will require farmers to get permits to have their cows cross a stream; this regulation will make 

dry washes that carry water only once a thousand years protected 

under the Clean Water Act; and this rule would make land or 

floodplains subject to Clean Water Act jurisdiction. I can say categorically that none of those statements are true. 

In contrast, there are some key examples of what the proposed 

rule does and does not do. In adherence with the Supreme Court, 

it would reduce the scope of waters protected under the Clean 

Water Act compared to the existing regulations that it replaces. It 

would not assert jurisdiction over any type of waters not previously 

protected over the last 40 years. The rule does not apply to lands, 

whole floodplains, backyards, wet spots or puddles. It will increase 

transparency, consistency and predictability in making jurisdictional determinations and reduce existing costs and confusion and 

delays. It represents the best peer-reviewed science about the functions and values of the Nation’s waters. And the Agency—and this 

is important to your opening comments, Mr. Chairman. The Agency 

will not finalize this rule until our Science Advisory Board is complete with its review of both the rule itself and the science documents that support it. 

It will reduce Clean Water Act jurisdiction over ditches compared 

to the previous 2008 guidance. The rule would maintain all existing Clean Water Act exemptions and exclusions. In addition, we 

are trying to clarify agricultural conservation practices which we do 

not want to inhibit that are conducted in waters that do not require a permit under the Clean Water Act. So we have published 

a proposed rule, not a final rule. We are currently taking comment 
20 

on the proposal and we expect tremendous and are getting tremendous public response from a broad range of interests. We are working actively to meet with a wide range of stakeholders. This outreach has already been tremendously helpful and it is helping us 

understand the concerns and discussing effective solutions that will 

lead to improvements in the final regulation. We are going to continue working hard, listening more effectively and to understand 

the issues better. 

Additionally, in preparation for the proposed rule, EPA was able 

to review and consider more than 1,000 peer-reviewed scientific papers and other data, and the EPA’s Office of Research and Development prepared a draft peer-reviewed synthesis of these published 

peer-reviewed scientific documents and the nature of connectivity 

and the effects of tributaries and wetlands on downstream waters. 

This draft report informed the agencies’ development of the proposed rule, and following earlier external peer review, the report is 

currently undergoing peer review led by the EPA’s Science Advisory Board. We expect that the SAB will complete its review later 

in this calendar year but again, we will not finalize this rule until 

they complete their review of that document and that we have 

their comments available to us to finalize the rule. 

So let me conclude by emphasizing my strong belief that what is 

good for the environment and clean water is good for farmers, 

ranchers, foresters, manufacturers, homebuilders and small businesses. We look forward to working with all stakeholders and the 

public to reflect this important goal in the final rulemaking when 

we get to that point. 

So thank you for this opportunity to comment. I apologize for 

running over, though. I just looked at the clock. 

[The prepared statement of Mr. Perciasepe follows:] 
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Chairman SMITH. We weren’t going to hold you to the 5 minutes, 

but thank you for your comments, Mr. Perciasepe. 

Let me go back to the map that I showed on the screens a few 

minutes ago and direct my first question to you in regard to that 

map, because it looks to me like what the EPA proposes is to regulate about 99 percent of these western states whether those areas 

in some cases are wet or dry. This is a map from your preliminary 

report? Do you agree with what the map says in that it would cover 

about 99 percent of those western states? 

Mr. PERCIASEPE. There are two things, like I said. First, this is 

a similar map to what the current regulations would be covering, 

and what that map is showing is the full drainage areas, not the 

actual waters. 

Chairman SMITH. That is my point, but your regulations could 

cover those areas that are the drainage areas, not just the actual 

water, and that is why so much of that map is either red or blue. 

Mr. PERCIASEPE. No, the regulations—keep in mind, this is just 

where the jurisdiction is. 

Chairman SMITH. Right. 

Mr. PERCIASEPE. You would be affected if you wanted to discharge pollution into the waters that might be in those red areas. 

Chairman SMITH. But the EPA could if it wanted to regulate the 

area that is colored red and blue in this map? 

Mr. PERCIASEPE. We would not regulate the land in those areas. 

The water that is in those areas that has stream banks, that has 

a bed, normal high-water marks, those would be the places that 

would be covered, not the land. 

Chairman SMITH. To the extent that the water traversed the 

land, then that land itself would be impacted by the regulations, 

would they not? 

Mr. PERCIASEPE. The water, the water tributaries, the bodies of 

water that are in those areas would be subject to regulation if you 

discharge pollution into them. It would not be the farm fields, it 

would not be the backyards, it would not be the areas, the land 

areas. It would be the discharge of pollutants into the waters in 

those areas. 

Chairman SMITH. Let me give a quick example. To the extent 

that there was a runoff from a stream or from even one of those 

rain puddles that I referred to, then you would be able to regulate 

that area, would you not? 

Mr. PERCIASEPE. We are proposing in this rule that tributaries 

to traditionally navigable waters, and this is included in many of 

the science documents and also in the Supreme Court decision, 

that have a significant effect on the downstream navigable waters. 

If you wanted to discharge pollutants into those or fill them in, you 

would have to have a permit under the Clean Water Act. 

Chairman SMITH. Suppose we are not talking about pollutants. 

Suppose we are just talking about rain runoff or that drizzle that 

is in your report or in the report where you might have literally 

areas that are only wet after it rains. Those areas would be covered 

whether or not there are pollutants involved or not. 

Mr. PERCIASEPE. The stream would be covered, not the land area. 

The stream. You wouldn’t be able to discharge into the stream. And 

including streams that are intermittent. 
33 

Chairman SMITH. Correct, that might be dry today. 

Mr. PERCIASEPE. They might be dry some parts of the year. 

Chairman SMITH. And in my opinion, at least, what gets into the 

land and goes beyond the water, as you just said, if you are talking 

about dry stream beds, that is land, that is not water, and I think 

that that concerns a lot of farmers and ranchers and landowners. 

Mr. PERCIASEPE. I understand that, and we are certainly talking 

to a lot of them about those concerns but we have tried to define 

which of those would be covered or that you would have to get a 

permit if you filled them or discharged pollution into them if they 

have the characteristics, that is, water flows in it enough times 

that it creates a bed and a bank and an ordinary high-water mark, 

and that is a hydrologic science kind of determination. 

Chairman SMITH. Going back to my main point, once again, you 

all had the authority to regulate in many cases dry land, in many 

cases intermittent streams, that would cover most of that area covered by the red and blue, which again I think is about 99 percent 

of the western states. 

But let me go to the states. I understand you have maps of each 

individual state but in greater detail than the map that is on the 

board and that was in your preliminary report. Can we get access 

to those state maps that are more detailed? 

Mr. PERCIASEPE. If we—I am not aware of how detailed the maps 

we have but again, I want to be really clear here. We—all that red 

area is not going to be regulated by the Clean Water Act. It would 

only be the water bodies or the tributaries that are in those areas. 

I don’t know how many times—I don’t know what else to say about 

that, Mr. Chairman, because I really do understand the concern 

but I want you to understand that—— 

Chairman SMITH. Is this map accurate, though? Those red 

areas—— 

Mr. PERCIASEPE. Those areas are regulated under the current 

regulations. 

Chairman SMITH. But you have the authority to regulate under 

current law. It just hasn’t been regulated before, and I think you 

are getting ready to expand your authority in a far greater way 

that has been done in the past. 

Mr. PERCIASEPE. No, we are not. 

Chairman SMITH. So nothing beyond the current regulations. Are 

you sure about that? 

Mr. PERCIASEPE. I am. 

Chairman SMITH. Okay. We will hold you to that. 

And I understand that the EPA does have these state maps in 

more detail, so if you have them, you will get them—— 

Mr. PERCIASEPE. I will. 

Chairman SMITH. I appreciate that. My last question goes to the 

Science Advisory Board. You heard me mention that in my opening 

statement, that they by law provide advice to the EPA and provide 

advice to Congress. We submitted several questions to the Science 

Advisory Board that were intercepted by the EPA and the Science 

Advisory Board was not allowed to answer our questions. That is 

not the way I read the law. We don’t have to get the EPA’s permission for the Science Advisory Board to give us answers to our ques-
34 

tions. Why did the EPA intercept our questions and why was the 

Science Advisory Board prevented from answering our questions? 

Mr. PERCIASEPE. Well, let me sway a couple of things about that. 

First of all, our intent is to make sure— we want this Committee 

and other committees of jurisdiction to benefit from the advice of 

that body. 

Chairman SMITH. The law doesn’t allow you to screen the Science 

Advisory Board’s answers or to intercept our questions, the way I 

read the law. 

Mr. PERCIASEPE. The members of the Science Advisory Board are 

volunteers, and they volunteer to provide their scientific advice and 

expertise to the American public through the government, and in 

volunteering, they become special what is called in the HR system, 

special federal employees, and so they are actually employees in 

that regard, although they are volunteers, and we feel that there 

needs to be a process—— 

Chairman SMITH. Do you disagree with the law that says that we 

can get answers directly from the Science Advisory Board? Do you 

think the law says that you can intercept our questions and prevent them from giving us answers? 

Mr. PERCIASEPE. We have given all your questions to—they have 

those. Whatever you have—— 

Chairman SMITH. But you haven’t allowed them to answer our 

questions. 

Mr. PERCIASEPE. Well, what we are trying to work out, and I 

think we are making really good progress on this, is how you take 

federal employees and have a defined—so they understand what 

the process is on how they would go about doing this work. 

Chairman SMITH. I think that is a pretty paternalistic almost 

more so added to say that you have got to tell these employees 

what to do or educate them. They are experts in their own right. 

We have a complete and fundamental disagreement on that. I 

think it was totally inappropriate for the EPA to intercept the 

questions and the Science Advisory Board from answering our 

questions. You apparently disagree with that, but to me, that is the 

law. 

That concludes my questions, and the gentlewoman from Oregon 

is recognized for hers. 

Ms. BONAMICI. Thank you very much, Mr. Chairman, and thank 

you again, Deputy Administrator, for being here and for your abilities, bringing your expertise to discuss this important issue. So I 

have several questions. First, I wanted to just confirm something 

that you said in your testimony. You said under the proposed rule, 

the current exemptions are maintained. Is that correct? 

Mr. PERCIASEPE. Yes, that is correct. 

Ms. BONAMICI. Thank you. So I want to start by discussing the 

issue of green infrastructure. City and county governments in my 

district have been replacing so-called gray infrastructure with 

green infrastructure including some daylighting stormwater pipes 

to create swales, vegetated swales, and by constructing wetlands, 

ponds and other natural facilities to manage and treat storm 

water. So many of these features have characteristics that the proposed rule could classify as tributaries and thus define them as waters of the United States. So assuming that the EPA wants to avoid 
35 

the unintended consequence of discouraging green infrastructure, 

how can the proposed rule be clarified to support the continued development of green infrastructure such as these swales? 

Mr. PERCIASEPE. Well, our intent is certainly not to discourage 

green infrastructure. EPA is a great advocate of green infrastructure. We think it is a bona fide solution to some of the urban runoff 

and pollution issues we have. 

You know, if you have a storm drain somewhere in your municipality or county or town and you discharge pollution into it and it 

goes downstream, you can’t—you would have to—the discharge of 

pollutants into that would have to be regulated. But we are not 

going to regulate in any different way a daylighted storm drain or 

diversions of gutters into a tree pit, which has vegetation in it that 

we want percolation of the groundwater to take place there. These 

things that are not jurisdictional now would not be jurisdictional 

under this proposed rule. 

Ms. BONAMICI. Thank you for clarifying that, and I happen to 

represent a district that is very diverse, so I don’t just have urban 

areas; I also have a lot of rural and agricultural areas. So one concern that I have heard about from my constituents in the agriculture industry is that the proposed rule may lead to the regulation of any activity on a farm that simply has the appearance of 

affecting a water of the United States, even if that activity does not 

include a discharge or involve a potential pollutant. So for some 

groups, they are very concerned and they want to express a concern about how ditches will be regulated under the proposal. A 

number of groups oppose the inclusion of ditches under the definition of tributaries. So could you please discuss how the EPA might 

clarify this question for stakeholders who are concerned about the 

proposed rule leading to an increase in amount of activities for 

which farmers must seek permits? 

Mr. PERCIASEPE. So there is two parts to that. One is, is the 

water jurisdictional, and the second is, does the activity itself regardless of whether it is jurisdictional require any action under the 

Clean Water Act. And so the farmers of this country who are working very hard to produce the food that we all need, they have to 

think about both of those because if you can plant, plow—I think 

the sequence would be plow, plant or no till, and harvest crops 

today on your land, this will not change any of that. Those activities are exempt from Clean Water Act permitting under the Clean 

Water Act, under the law itself. 

One of the things that we are trying to expand on and be clear 

about are the conservation practices that many farmers also do 

during different times of the year and they do this with hunting 

organizations like the Ducks Unlimited and others, and we want 

to make sure that those activities are also best management practices that you would do to do conservation on your land because 

farmers are primary stewards of the land and we want to make 

sure that we can understand the plowing, planting and harvesting 

but we also want to make sure that those conservation practices 

are not inhibited. So yes—— 

Ms. BONAMICI. Sorry to interrupt but I want to follow up and I 

am running out of time. So I want to talk a little bit more about 

ditches and how they may be treated differently under the pro-
36 

posed rule compared to current practice. So ditches is a big issue 

in the district. So can you talk about whether they are exempt 

under the proposed rule? Will farmers be able to maintain drainage 

and irrigation ditches without getting a Clean Water Act permit 

and will local governments need additional permits to maintain 

roadside sides? So if you could clarify that, please? 

Mr. PERCIASEPE. Roadside ditches, ditches that are on upland 

areas that are designed to drain that water off of an upland area, 

all of those we try to be really clear, they are not included in this 

jurisdiction—as a jurisdictional water or feature even, and when 

we talk about ditches, we are probably talking about constructed 

activity. Now, if you channelize a stream and make it look like a 

ditch but it is a channelized stream that is running all year long, 

that would require, but the ditches that people are using to drain 

their farm fields or make sure water runs off more efficiently off 

an industrial property or at the side of a road, those are not jurisdictional and they would not be jurisdictional under this proposal, 

and we have tried to clarify that. Now, if we didn’t get that right— 

I am telling you what our intent is, but if we didn’t get that right, 

that is what we are hoping to get some comment on because—— 

Ms. BONAMICI. Thank you very much. I see my time is expired. 

That was very helpful. I yield back. 

Chairman SMITH. Thank you, Ms. Bonamici. We will go to the 

gentleman from North Carolina, Mr. Cramer, for his questions. 

Mr. CRAMER. I am from North Dakota, but it is very close to 

North Carolina. 

Chairman SMITH. Did I say—pardon me. 

Mr. PERCIASEPE. They are both north. Thank you, Mr. Chairman. 

First of all, before I almost certainly will forget, I have received 

four letters this morning from four different county Farm Bureaus 

in North Dakota that I would like to admit to the record if that 

is okay. 

Chairman SMITH. Without objection, they will be made a part of 

the record. 

[The information appears in Appendix II] 

Mr. CRAMER. I need to get very clear something that I heard— 

I think I heard anyway—during the chairman’s questioning, and 

let me ask you the question this way. Do you believe that the law 

allows the EPA to intercept this Committee’s questions to the advisory board and/or somehow regulate their answers back to us? Do 

you believe that the law allows that? 

Mr. PERCIASEPE. What I believe is that the Committee’s processes and the SAB’s processes need to both be protected in a way 

that there is a structured approach to how we interact, and we are 

working—we want to do that, and we want to have these employees of the Federal Government to have a knowledge on how they 

would go about, what process they would go through. So I am comfortable with just saying let us get that worked out. We are working hard to do that, and I have high confidence we will. 

Mr. CRAMER. Okay. I can appreciate what you want, and as you 

said, the chairman, how you feel, that is all fine stuff for a social 

scientist but we are talking about hard science and the law, the letter of the law. Do you believe the law allows you to intercept the 
37 

questions from this Committee to the Science Advisory Board? I believe it does not but—— 

Mr. PERCIASEPE. We provided all the correspondence that you 

have given us to the Science Advisory Board. 

Mr. CRAMER. I think the correspondence was to the Science Advisory Board, and that is the point, is that you have it, not the 

Science Advisory Board, or—— 

Mr. PERCIASEPE. Well, they are employees—— 

Mr. CRAMER. —screening before it gives to them. All right. We 

are not going to get anywhere on that one. 

The EPA and the court keep talking about the need for clarity, 

and quite frankly, from my perspective, the clarity you seek is 

more permission, not clarify. I think to me it is every bit as clear 

today as it has ever been what your jurisdiction is and, more importantly, what it is not. It seems to me you are seeking permission, not clarity, because as I read the rule, I don’t see—or the proposed rule, I don’t see it being clear at all. And one of the areas 

that concerns me most is this reference to other waters and the 

definition of other waters. ‘‘Other waters’’ is so open-ended as to 

create ambiguity, not clarity, in my view. Can you explain why 

there needs to be a category called ‘‘other waters’’? 

Mr. PERCIASEPE. The existing regulations that are on the books 

use a very general test that is oriented toward whether there is an 

effect on interstate commerce or a potential effect on interstate 

commerce, which is not a science-based test, and it is not in adherence with what the Supreme Court laid out in their decisions in 

the last decade. And so what we are trying to do—and again, I am 

totally open to the fact that we may not be achieving what we are 

setting out to do here, is take what the Supreme Court says, you 

got to move away from this sort of general thing, because under the 

existing regulation, it is much more open-ended as to what a field 

technician could decide might have an effect on interstate commerce, not that a biologist is an expert in that matter, as you 

might agree with me on. 

Mr. CRAMER. Sure. 

Mr. PERCIASEPE. So what we are trying to do is get it back to 

sort of a science-based, science of hydrology. So we have in most 

cases, and I promise to get to the other in a minute, we have tried 

to define normal hydrologic features that a good, normal scienceoriented field technician can figure out. There are other places that 

have those characteristics that have this other issue that has to be 

dealt with, which is whether they are connected or not, and this 

is the other issue that the Supreme Court asked us to try to deal 

with. And so what we do in under the current regulation, they are 

all case by case. Under this one, we are trying to define an approach that we would take, whether it is a watershed approach or 

an ecological approach, and we ask for comment on that, and we 

have to work—get to the point where we really understand how 

anything that has characteristics of being water like standing 

water or a wetland, and how we go about dealing with that as opposed to case by case. So I am with you that we need to define that 

better, and we think we got to most of the stuff in this rule but 

that one we are still asking questions on. 
38 

Mr. CRAMER. Okay. I guess this will be my final question, at 

least for now. The EPA has stated that it has consulted with the 

states. How is that coming along? Are a lot of states jumping on 

board with this rule? How many of them support it? Have you 

heard from any that have concerns about it? What is the status of 

the support of the states? 

Mr. PERCIASEPE. So a couple of things on that. First of all, in our 

own Supreme Court filings back in the middle of the last decade, 

35 states were amicus with us in the Supreme Court specifically. 

Currently, about—and I can provide this for the record—— 

Mr. CRAMER. That would be good. 

Mr. PERCIASEPE. —probably a number of individual states and a 

number—most of the state organizations including the State Association of Ag Directors and what have asked us to do a rulemaking. 

So we have a lot of states saying do a rulemaking, a lot of states 

supporting us in front of the Supreme Court, and now what we 

have is a proposal out there and we have a process going on with 

a number of those state organizations including the Environmental 

Council of the States, the State Environmental Commissioners. 

Just last week, I was in Denver. I met with the ag directors including from North Dakota and the State Environmental Commissioners getting their input. Very informative to me, according to 

the things just mentioned, where I know we need to do more work. 

So we will not get this rule finalized without having a defined process with our co-regulators, the states, between now and then, and 

we have ample evidence beforehand of them asking us to do a rulemaking. 

Mr. CRAMER. Yeah, doing a rulemaking and the outcome of the 

rulemaking are two very different things. My time is expired. 

Chairman SMITH. I thank the gentleman from North Dakota. The 

gentleman from California, Mr. Peters, is recognized for his questions. 

Mr. PETERS. Thank you, Mr. Chairman. Thank you, Mr. Secretary, for being here. I want to cover two topics. 

The first was, in general, we know that the proposed rule is esti- mated to cost between $162 million to $278 million for additional 

mitigation pollution reduction facilities while it lists benefits including reducing flooding, filtering pollution, providing wildlife 

habitat, supporting hunting and fishing, and recharging groundwater with estimated benefits at $388 to $514 million annually. I 

wanted you to give us some sense of how those benefit numbers 

were calculated. 

Mr. PERCIASEPE. Well, we use a variety of methods and economic 

analysis to do that, and one of the things that we did for this economic analysis, and we have been getting a lot of comment on this 

as well, is we looked at actual determinations or jurisdictional determinations that were being made by the Corps of Engineers in 

the field following the 2008 guidance and how they were making 

those determinations and would they be different under this proposal, and then we looked at that and we looked at studies that 

are available and that are out there related to the values of different flood control approaches and wildlife habitat benefits, the 

benefits of hunting and fishing in the United States, and we did 

the economic analysis around that. The cost numbers are related 
39 

to mitigation that might be required from permits for discharging 

fill or for the permitting processes themselves. 

Mr. PETERS. We hear about the costs. We just want to get a 

sense of how you think the benefits are. Obviously we are sensitive 

that the balance sheets from which the costs are paid aren’t always 

the balance sheets to which the benefits accrue. 

The other thing is, I wanted to follow up on Ms. Bonamici. I did 

practice law for some time and worked on the Clean Water Act, 

and I think I am still the only former EPA employee in Congress, 

I suspect, so I may just have a little bit too much dangerous knowledge. But, I am sensitive to the need to encourage kind of the right 

kind of drainage as a matter of infrastructure, and so just maybe 

to phrase what her question was a little bit differently, is there any 

jurisdictional distinction between a concrete drainage ditch which 

conveys to an undisputably navigable water of the United States, 

on one hand, and a swale that has its own filtering, natural filtering elements in it that might also lead to the same water? 

Mr. PERCIASEPE. Well, if it is a channelized stream with concrete 

or gabions or riprap, and it runs with the proper perennial or intermittent characteristics, then it would be jurisdictional under this, 

and if you wanted to discharge pollutant into it, you would have 

to get a permit. 

Mr. PETERS. Right. 

Mr. PERCIASEPE. On the swale, it becomes a different matter. I 

mean, there are swales in farm fields that are not jurisdictional. 

There are drainage off of a commercial property that has to move 

the water efficiently. Those are not going to be jurisdictional. It is 

hard to say specific here. 

Mr. PETERS. What I am trying to get at is, is the fact that there 

is sort of a filtering built into it. 

Mr. PERCIASEPE. Yes. 

Mr. PETERS. Does that make a difference in having to comply 

with the law? 

Mr. PERCIASEPE. Again, I am going to say as a general manner, 

swales are not going to be—drainage swales are not going to be jurisdictional but that doesn’t mean you can’t consider whether you 

are going to be discharging pollution into them. 

Mr. PETERS. But that is exactly the point, that there might be— 

one of the things that we are talking about in theory, in planning 

theory, is now building drainage that has in itself, that incorporates—— 

Mr. PERCIASEPE. Absolutely. 

Mr. PETERS. —filtering, and what I think Ms. Bonamici’s question was that if we don’t draw a distinction or provide any incentive, we are not going to encourage that at the local level, which 

is—— 

Mr. PERCIASEPE. We do not want to create disincentives for green 

infrastructure or other drainage systems that are built to help 

stormwater management and particularly from a pollution-control 

perspective. I mean, city—in many respects, you have this both in 

your district in both ways, cities are beginning to learn from what 

farmers have been already doing, and I think this is really kind of 

an interesting time for that kind of stormwater management work. 

But we do not want to create impediments to that. 
40 

Mr. PETERS. And I would invite any of your lawyers who wanted 

to follow up with two pages on that to me to feel free to do so. 

Mr. PERCIASEPE. Okay. 

Mr. PETERS. Thank you. 

Mr. PERCIASEPE. We will follow up. 

Mr. SCHWEIKERT. [Presiding] Thank you. Mr. Neugebauer. 

Mr. NEUGEBAUER. Thank you, Mr. Chairman. 

Thank you, Administrator, for being here this morning. Obviously this rule has caused quite a bit of controversy, and particularly a lot of uncertainty with my farmers and ranchers. I have received letters from both the Farm Bureau and the local Chamber 

of Commerce in my district very concerned about the mixed signals 

that they are hearing both from when they read the rule and what 

the Administration is saying, and I want to read this part, but the 

proposed rule states that all waters in a floodplain are regulated 

unless specifically excluded. Now, there are a limited number of exclusions for ponds that are used only for stock watering, irrigation, 

settling basins or rice growing, but there aren’t any exclusions, for 

example, of standing water in a field, rainwater, puddles, backyards, wet spots or ponds that have other uses. Now, I know that 

Administrator Stoner has in her blog indicated that water in fields, 

ponds, rainwater are excluded from the regulation under this rule, 

and I think that is also repeated on the EPA Web site. But I think 

what we keep hearing is when people hear what you are saying 

and then they go back and see what is written in that rule, they 

think that there is a conflict there. Can you show me in the rule 

where these areas that Ms. Stoner and others are saying they are 

excluded? Because we are not finding them. 

Mr. PERCIASEPE. We have heard this ourselves from a number of 

people. Again, I was mentioning just previously that I had been 

personally talking to some ag commissioners and what they hearing on the ground from both farmers and the associations. I am 

speaking to the soybean Association this afternoon after I complete 

work with you all this morning, and here is how it works and here 

is how we need to work on making it clearer. The floodplain concept is to help identify whether or not it is adjacent to a navigable 

water, so you have got a floodplain from a traditionally navigable 

water and you have water—I will come back to this—in that floodplain area, then we are saying that that should be considered adjacent. The trick here is, it is not any water in that floodplain. Obviously the floodplain is going to be flooded in the spring, let us say, 

if it is a typical floodplain. That doesn’t make the floodplain itself 

jurisdictional. What it makes—what we are proposing in the rule 

is that if there is a water as is otherwise defined, a stream with 

a bed, bank and normal high-water mark or a wetland that has 

hydric soils and hydrophitic vegetation, puddle is not going to have 

that. A wet field isn’t going to—is not jurisdictional under any circumstances. So and for those that actually need that like a rice 

field, we specifically exclude them. 

So I think our intent here is to use the concept of floodplain, 

which is a solid hydrologic science concept of adjacency, but only 

be regulating waters that are otherwise defined in those floodplain 

areas to be jurisdictional. So that doesn’t mean everything in the 

floodplain is jurisdictional or that there is any restrictions on farm-
41 

ing or any other excluded activities. So we need to do a better job 

of figuring how to explain that, but that is the best I can do right 

here. 

Mr. NEUGEBAUER. For example, in my district, we have a lot of 

playa lakes, and while those playa lakes sometimes have water, 

sometimes they don’t, but they are not adjacent to other bodies of 

water that would meet I think the original intent of Congress, and 

that would be a navigable waterway. So I think one of the things 

I want to—hopefully during this comment period that you are hearing from these people but I think it is going to be important that 

the EPA take the necessary steps to make sure we clarify what is 

covered and what is not because I think it is leaving a lot of uncertainty. 

I want to go back again to Ms. Stoner. She said that permits will 

not be applied for the application of fertilizer to fields or surrounding ditches or seasonal streams. She says that the pesticide 

general permit only requires a permit when pesticides are applied 

directly to the waters of the United States. But looking at the rule, 

I don’t see how that she can make such a broad statement because 

the rule is pretty clear. It says all water in a floodplain and all seasonal streams are federally regulated waters of the United States. 

And so the application of fertilizer or pesticides would seem to 

apply here and require a permit. 

Mr. PERCIASEPE. I will just try to—because this is something we 

need to work on. The floodplain is a geography—it is under the 

science of fluvial geomorphology. It is something that is created as 

a natural part of the hydrology of a river system and a stream system. We are using that characteristic to say if there is a water in 

that area that can be deemed as being adjacent to the main stream 

or the traditionally navigable water, but it still has to be a water 

as defined in the regulation, which is again a stream with a bank, 

a bed, a normal high-water mark, a wetland that has hydric soils 

and hydrophitic vegetation. So the chances are pretty high that 

those are not going to be farmed to begin with but if you have a 

field and you have been farming it before this rule, you are going 

to be able to keep farming it, and if it does get wet and if you are 

a farmer who is so inclined to spray fertilizers and pesticides on 

a wet field, which doesn’t make it very effective, but you will not 

need a permit to get—to do that. You will not come under the general permit that is already out there. You will have to avoid spraying it directly on those other waters there. 

Mr. NEUGEBAUER. Thank you. 

Mr. SCHWEIKERT. Thank you for yielding back. Ms. Kelly. 

Ms. KELLY. Thank you. 

I guess I wanted to follow up on what some of my colleagues 

have already mentioned. It seems like there is so much misunderstanding and misinformation and rumors about what this new ruling would do, and I just encourage you to do everything you can 

to work with the farmers. My district, people are always surprised 

when I say I have more farmland than city land, and I was just 

with one of my farmers yesterday and they made me stop at different places and say that is going to be covered by the rule and 

they are very, very concerned. So whatever you can do to make it 
42 

clearer to all of us, I think that would be very helpful and go a long 

way. 

The other thing is, in its testimony before the House Transportation and Infrastructure Committee last month, the American 

Farm Bureau Federation suggested that the exemption for agricultural stormwater and irrigation return flows would be severely undermined by the proposed rule because the proposed rule would 

regulate as waters of the United States, the very ditches and 

drains that carry stormwater and irrigation water from farms. Can 

you please comment on this statement and the impact of the proposed rule on the exemption for agricultural stormwater and irrigation return flows? 

Mr. PERCIASEPE. Our intent is that those remain exempt. We 

have not changed the exemptions. We are struggling to find out 

how to understand how people make that interpretation, but 

whether it is playas or whether it is the agricultural irrigation 

ditches, these are not jurisdictional and we believe we have not 

changed that, but we obviously have to make that clearer or somehow convince the people who want to help continue the confusion, 

we can get them to be a little more focused on what we really need 

to do to fix the rule. 

Ms. KELLY. It just sounds like communication is such a big issue. 

Mr. PERCIASEPE. Yes. 

Ms. KELLY. Okay. Thank you. I yield back. 

Mr. SCHWEIKERT. Thank you, Ms. Kelly. Mr. Collins. 

Mr. COLLINS. Thank you, Mr. Chairman, and I am going to be 

submitting for the record a letter dated May 1 that I sent to Ms. 

McCarthy and the Hon. John McHugh signed by a majority of the 

Members of Congress, over 230 members, Republicans and Democrats, simply asking that this rule be withdrawn. Withdrawn. Now, 

obviously, your Administration denied that. I have only been in 

Congress 18 months but I will say as I have heard you say again 

and again here, there is confusion. It is our intent. We need to do 

a better job. We should make that clear. The problem is, the public 

doesn’t trust the EPA. The farmers don’t trust the EPA to not overreach. Congress doesn’t trust the EPA. And what we have here 

today is a proposed rule, defective. As you have stated, we need to 

make things clearer. Our intent is not clear. We need to do a better 

job. But the rule is out there, and the very fact that you intercepted our questions and thought you had the audacity that you 

had that control, none of us trust for two seconds that the EPA 

isn’t just going to let this train roll right down the tracks and saying all these good things and putting things on your blog doesn’t 

make it so, especially when what you have shown is a disregard 

for listening. You don’t listen. And if you don’t listen, what is going 

to happen. So you are saying you are getting this input, you are 

getting this input. Frankly, Congress doesn’t trust you, the Farm 

Bureau doesn’t trust you, counties don’t trust you, the public 

doesn’t trust you to simply ignore all that you are hearing, and 

when you say that these puddles and streams aren’t regulated and 

then you put on your blogs they are not regulated, but it is not 

clear. So I don’t understand why in our very simple request, withdraw the rule. Send it back to the agency. Then if you come out 

with a proposed rule, as you say, to take this further, at least it 
43 

would be there. It is not there now. All these things you are claiming are not intended, I mean, do you agree, they are just not there 

now? 

Mr. PERCIASEPE. There is a difference between making it clearer 

because others are trying to make it unclear and whether I believe 

the rule we proposed does what I say, because I believe it does. So 

I believe that it does and meets the intent of what I am saying—— 

Mr. COLLINS. Do you care that a majority of the Members of Congress, Republicans and Democrats alike, don’t agree with you? That 

apparently doesn’t—see, that is the arrogance of your agency. You 

are just displaying right here in front of us. 

Mr. PERCIASEPE. I am not being arrogant. I am telling you—you 

asked me what I believe, and you are trying to tell me what I believe. I am telling you that I believe we need to do a better job of 

explaining—— 

Mr. COLLINS. Why not withdraw the rule and start over? 

Mr. PERCIASEPE. Because I believe the rule does what I am saying. 

Mr. COLLINS. But Congress doesn’t agree with you. The Farm 

Bureau doesn’t agree with you. My counties, they are all passing 

regulations—— 

Mr. PERCIASEPE. I also have the Supreme Court saying we need 

to do rulemaking. I have hundreds of letters saying we should do 

rulemaking. 

Mr. COLLINS. Well, this one is so defective. All we have asked is, 

withdraw it, because you have got a process moving. At the end of 

all of your fact gathering, you come up and say we think it is just 

fine. I mean, you are saying right now you think it is just fine but 

then again, you say we need to do better, it was our intent, we 

need to make it clear. So you are almost contradicting yourself, 

that you are saying the rule is fine but then you are saying we 

need to do a better job. If it is fine, why do you need to do a better 

job? 

Mr. PERCIASEPE. I want to say again there is a difference, and 

I am not being disrespectful. There is a difference between explaining and perhaps writing it more clearly than saying that what we 

intended to do we didn’t do. We intended to exclude conservation 

practices. People read that differently. I think they are reading it 

too narrowly, but we will even expand on that. 

Mr. COLLINS. I understand—— 

Mr. PERCIASEPE. This is what goes on in normal comment period 

that you do when do an administrative process. 

Mr. COLLINS. I will just state for the record the problem is, we 

don’t trust the EPA. We the people don’t trust the EPA. Congress 

doesn’t trust the EPA. The rulemaking is rolling down the tracks. 

We have, and I think it was a reasonable request signed by a majority, Republicans and Democrats in Congress, that have said 

withdraw the rule, send it back to the Agency, and then if you 

want to come out with a new rule, have these exclusions in it right 

from the get-go at which point maybe we would trust what you are 

going to do. 

Mr. Chairman, I yield back. 
44 

Mr. SCHWEIKERT. Thank you, Mr. Collins. And Mr. Collins has 

a UC request to put a couple letters into the record. Are there any 

objections? No objections heard. So ordered. 

[The information appears in Appendix II] 

Mr. SCHWEIKERT. Ms. Esty. 

Ms. ESTY. Thank you very much, and thank you for being with 

us here today. I would like to turn a little bit to climate change 

and the expected impact or possible impact and how that would tie 

into these regulations and the Agency’s thinking. 

According to the Third National Climate Assessment, droughts 

are expected to intensify in most regions of the United States. Additionally, flooding is projected to increase even in areas where 

total precipitation is expected to decline, the basic message being 

that climate change will have a dramatic impact on water demand 

and water use. Could you comment on the importance of the proposed rule and protecting the Nation’s water supply in light of 

these projected impacts of climate change? Thank you. 

Mr. PERCIASEPE. Thank you. Well, I think stepping back just a 

little bit, recognizing that from surface waters in the United States, 

in these tributaries or in these traditionally navigable waters, 

about 100 million people in the United States get their drinking 

water from surface waters. It is more than 100 million but I am 

just going to use that number. The quality of the water coming into 

their systems is affected by how development takes place or pollution is discharged above the streams where they receive it. This is 

one of the key things that the Science Advisory Board pointed out 

to us, that you have to look at that connection. And so having proper jurisdiction and availing of the pollution control programs that 

are in the Clean Water Act to those areas is a pretty important 

thing to protect drinking water. On the wetlands side, when you 

have more erratic meteorological events or weather events, wetlands provide a very effective flood control and flood mitigation 

function, again, well established in science, and these are key 

things that also are a very strong reason why as states and cities 

and counties are starting to look at how they can be more resilient 

in the face of climate change, that they also are looking toward 

how not only do they do some additional work with green infrastructure but also how they maintain the existing natural systems 

so that they can get the attenuation from those. So those are some 

quick points on that. 

Ms. ESTY. I hail from the State of Connecticut, and we both 

along our coastlines have been looking at these issues as well as 

significant issues around borders around our streams for exactly 

this reason, to attenuate the flooding that we have been seeing 

with these more intense weather events. 

In your testimony, you discuss the importance of clean water to 

the Nation’s economy, listing numbers of businesses and industries 

that need a reliable supply of clean water to function. Can you 

elaborate a little bit on how the agency is thinking, is the agency 

looking not just at health effects but also at economic impacts for 

those industries that actually utilize clean water? 

Mr. PERCIASEPE. Well, I think three sectors in the economy who 

absolutely rely on clean water are agriculture, sports, outdoor 

recreation, hunting and fishing, and manufacturing, I will say 
45 

Coca-Cola or Pepsi Cola or some other drink. They need supplies 

of clean water, and this is where there is a natural partnership 

with our colleagues in the agricultural community because they are 

stewards of the land and they need to have that same objective in 

mind. And so, our approach here is to build on their ability to do 

conservation work, and that is what we want to be able to encourage. So these are pretty broad sectors but they are pretty—clean 

water is pretty important to them. 

I might add that many of our developed parts of the country— 

cities—have turned back to the waterfronts as a way to spur on 

economic development and revitalization of their communities. Baltimore, just north of here, the Potomac River, Cleveland, all of 

these places have had a resurgence of the vitality of their community around cleaner water than it was 40 years ago. So these are 

pretty important aspects. 

Ms. ESTY. And finally, if you could quickly comment on the inclusion of ‘‘all adjacent waters’’ rather than ‘‘adjacent wetlands.’’ This 

is an issue I have been questioned about at home. Thank you. 

Mr. PERCIASEPE. There are three perhaps kinds of adjacent waters. ‘‘Waters’’ is a more general term. You could have an intermittent or a perennial stream that has the characteristics of a bank 

and a bed and a normal—an ordinary high-water mark. You could 

also have wetlands which have the hydric soils and the hydrophitic 

vegetation but you could also have a standing lake. So all of those 

would be waters, and determining whether they are adjacent to a 

navigable water are the tests we are trying to develop here in this 

proposal. 

Ms. ESTY. My time is expired. Thank you, Mr. Chairman. 

Mr. SCHWEIKERT. Thank you, Ms. Esty. Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman, and Mr. Perciasepe, 

thank you for joining us here today. 

I would like to take off a little bit on the exchange that you had 

with my colleague, Mr. Collins. Let me tell you why I believe that 

Congress in general and the American people specifically don’t 

trust the EPA. You made a statement just a few minutes ago. You 

said the Supreme Court has said that the EPA needs to do a rulemaking. I think that is what I heard you say. I think what the Supreme Court actually said is that under the law, you have the authority to do rulemaking. I think that is what the Supreme Court 

said. And I think what the American people, who by the way all 

three branches of the Federal Government is subject to the American people, I think what they expect the EPA to do is to provide 

a responsible regulatory environment that protects public safety, 

protects public health, but that does not disadvantage American 

businesses and American workers and cripple our economy, and 

from the shutdown of the coal industry through EPA regulations, 

through the stranglehold that EPA regulations have over our manufacturing sector, you name it, that is why the American people 

and Congress don’t trust the EPA. 

Let me go into a few questions here with you. You know, there 

are enough new definitions and new ideas in this rulemaking that 

it is obvious that agencies will spend money figuring out how to actually implement this rule, and it is clear that the EPA is driving 

the bus, even though the Army Corps of Engineers, key permitting 
46 

programs will also be affected. It is also apparent that other agencies’ programs could be affected, given that the rule which is all 

corners of the Clean Water Act and not just the wetlands programs. So has the EPA consulted with other federal agencies that 

have administrative responsibilities under the Clean Water Act as 

well as considering the costs that these agencies will incur when 

the rule is implemented? 

Mr. PERCIASEPE. In order to put out a proposal under the Administrative Procedures Act and under the Executive Orders that we 

operate under in terms of the Office of Management and Budget, 

all proposed rulemakings that EPA or any other agency does go 

through an interagency review process for 90 days before they—— 

Mr. JOHNSON. What feedback have you gotten from those other 

agencies? Does the EPA know how other agencies will interpret 

this rule and whether other agencies will require more resources 

to understand how this rule affects their ability to administer their 

own programs? Have you reviewed that input from the other agencies? 

Mr. PERCIASEPE. We took it into account when we did the proposal, and for instance, the work we did to try to identify the conservation practices that would be clearly exempt from having to 

have a clean water permit was something we worked on directly 

with the Department of Agriculture before—— 

Mr. JOHNSON. What did the Army Corps of Engineers say? 

Mr. PERCIASEPE. Well, they are coauthors of the rule. 

Mr. JOHNSON. Okay. So they provided you input? 

Mr. PERCIASEPE. They helped write it. 

Mr. JOHNSON. Okay. If small businesses have never obtained a 

permit under the Clean Water Act before, how do they know if they 

will need to get a permit under this new rule? 

Mr. PERCIASEPE. Well, it depends on what their action is. Are 

they discharging pollution? 

Mr. JOHNSON. How will they know whether their action requires 

it? 

Mr. PERCIASEPE. Well, if you discharge pollution, you have to get 

a permit. I mean, that is the current law. 

Mr. JOHNSON. Well, I mean, they may know that now but they 

never had to do it before, so how will they know if this additional 

rule will require them to do a permit? 

Mr. PERCIASEPE. Well, if you do not have—if you are not regulated under the Clean Water Act now under the existing regulations, you will not be regulated under this proposal. 

Mr. JOHNSON. Say that again. 

Mr. PERCIASEPE. We are not expanding the jurisdiction of the 

Clean Water Act. 

Mr. JOHNSON. Okay. 

Mr. PERCIASEPE. So unless they are operating illegally under the 

current regulation, they would not have to—— 

Mr. JOHNSON. How long on average will it take the Agency to determine—let us say a business comes to the Agency and says we 

think we need a permit. How long on average will it take the Agency to determine whether a permit is required? 

Mr. PERCIASEPE. Well, I don’t have any information on that right 

here. Our estimate is that there will be a reduced time because we 
47 

will have better definitions of where the jurisdiction is, and so that 

step of trying to determine whether or not it is a jurisdictional 

water or not, which currently goes on under the 2008 guidelines 

that were put out in the 1986 regulations that are in place would 

be reduced. The number of those analyses would be reduced. So the 

Corps of Engineers clearly feels that they would have a reduced 

amount of time doing those because they would have a reduced 

number of those jurisdictional determinations that they would have 

to do. But I don’t have an estimate from them right now or I don’t 

know what their estimate is on that. 

Mr. JOHNSON. Okay. Thank you. Mr. Chairman, I yield back. 

Mr. SCHWEIKERT. Thank you, Mr. Johnson. 

Ms. Edwards. 

Ms. EDWARDS. Thank you very much, Mr. Perciasepe, for being 

here. 

And I just want to say for the record that I am one of the Members who actually both appreciates and respects and values the 

work of the Environmental Protection Agency and the hard work 

that the folks at the EPA do every single day to protect our water, 

to make sure that our air is clean and that our health as a result 

is safe. And so it is not a foregone conclusion that the Members of 

Congress don’t like or respect or value the EPA, and I think it is 

important for us to clarify that for the record and then other Members who feel otherwise can speak their piece but I have spoken 

mine. 

I want to go to some of the questions that you tried to address 

earlier and in your testimony. I want you to describe if you would 

the variability that exists across the country in interpretation of 

the scope of the Clean Water Act following the Supreme Court decisions and tell me if you would what other areas were considered 

jurisdictional by some states and not by others that has resulted 

in what you describe in your testimony as the lack of clarity following those decisions? 

Mr. PERCIASEPE. The clarity issue—and again, we have defined 

in this proposal clear hydrologic science-oriented approaches to determining jurisdiction as opposed to the general one under the current regulations, which is will it have an effect on interstate commerce. So I think that is pretty important and it is going to really 

instruct the field people who do this work, mostly in the Army 

Corps of Engineers, to have a more consistent approach and a more 

consistent sense of how they get the work done. 

I think that that is my primary reason why I believe that this 

would be a significant improvement over the existing situation, and 

I—which I—and I am highly confident that the comments we are 

getting through the normal administrative process will help us 

even further improve that. 

Ms. EDWARDS. And let me ask you about that normal administrative process because you issued the rule in—the proposed rule, and 

let’s be clear that it is a proposed rule in April; then you did extend 

the time period I believe for response because you heard from people that they—from States and from affected individuals, companies, et cetera, that they wanted to be able to respond, and so you 

have extended that. And so now comments are due by October 20. 

Is that correct? 
48 

Mr. PERCIASEPE. Yes. I think it is 20. It might—I—21st, 20th—— 

Ms. EDWARDS. Around—— 

Mr. PERCIASEPE. October, yes. 

Ms. EDWARDS. Needless to say, it is from April now extended October 20 and we still haven’t gotten to a place where you have 

begun to then assemble all the comments, sift through comments, 

review the work of the SAB, and then incorporate that into what 

might then become a final rule, is that correct? 

Mr. PERCIASEPE. That is correct, but again I am being open here 

in saying that we have seen patterns already from our own conversations, mine personally, where I think there are some things 

that are just—people are not reading it or whatever and then some 

are where we need to do the work that you normally do in an administrative process to improve how things are written. So I think 

we will have more of it. 

I want to also mention because I think this is important to this 

Committee, one of the other reasons we extended the comment period in addition to the fact we were getting a lot of comments is 

we wanted to make sure, as I have committed, that the work on 

the final rule would be not only aided by some of those comments 

but also aligned with the Science Advisory Board’s process. You 

know, they are going to look at this rule itself and they are also 

going to look at the connectivity report that was associated with it, 

but their work will be done in the fall time frame as well. So we 

want to make sure that we get aligned with the Science Advisory 

Board. 

Ms. EDWARDS. Thanks. And just to go back to an earlier point, 

do you have some estimate of how long it takes under the current 

guidelines to make a jurisdictional determination? 

Mr. PERCIASEPE. I don’t. I apologize to everyone who asked this 

question. I don’t have some information on that but I am happy to 

get whatever information we have with the Corps of Engineers on 

the current amount of time it takes to generally go through a jurisdictional—— 

Ms. EDWARDS. I think that that would be useful because I think 

it would help to underscore why it is that we need to bring some 

clarity that would begin to refine the jurisdictional determination 

period because that again would help in terms of moving forward 

decision-making. And so anything you could do in that regard 

would be helpful. 

I want to further ask you if you can elaborate on the role of the— 

of clean water in supporting the American economy? What does it 

mean when we have clean water in terms of its economic impact? 

Mr. PERCIASEPE. Well, I think we have had an opportunity to 

talk about this a little bit but I will just summarize here. I think 

that there are a couple of key areas where clean water is pretty 

essential in addition to human consumption is agriculture. Agricultural productivity in the country depends on clean water and the 

ability to move it around and unimpaired by unnecessary regulations. It—many manufacturers require clean water or they end up 

having to spend money to treat it themselves to use it, and I want 

to say also that many communities and their—the quality of life in 

a community is improved by having water bodies nearby that peo-
49 

ple feel comfortable that they can recreate in and around, and I 

will just point to the Potomac River as an example. 

Ms. EDWARDS. Thank you. 

Thank you, Mr. Chairman. 

Mr. SCHWEIKERT. Thank you, Ms. Edwards. 

Mr. Broun. 

Mr. BROUN. Mr. Chairman, before I start my time I have a unanimous consent request. Administrator Perciasepe made a comment 

that agriculture and business are in favor of this new rule and I 

have got two letters, one from Gary Black, our Georgia Commissioner of Agriculture from the Department of Agriculture in Georgia, opposing this rule, as has been presented. The other one is 

from Chris Clark, who is the President and CEO of the Georgia 

Chamber of Commerce again opposing this rule. 

And I ask unanimous consent that these be entered into the 

record. 

Mr. SCHWEIKERT. Without objection, so ordered. 

[The information appears in Appendix II] 

Mr. BROUN. Since I haven’t started my question, please restore 

my time. I would appreciate that. 

Administrator Perciasepe, I have to hand it to you and compliment you. In my four terms in Congress, you are one of the very 

best witnesses I have ever seen of filibustering a question and not 

answering, and that is not only to Republicans but it is Democrats 

also. 

Now, the Chairman showed you a map, the Connectivity Report 

Map. You made the statement that you already had control over 

all of that property, is that correct? Yes or no? 

Mr. PERCIASEPE. We do not control—— 

Mr. BROUN. No, you said that you—— 

Mr. PERCIASEPE. —the land. I want to make it clear—— 

Mr. BROUN. You control the water over that—on all that 

area—— 

Mr. PERCIASEPE. We do not. 

Mr. BROUN. —in that map, correct? Yes or no? 

Mr. PERCIASEPE. You know, I am not going to do that. 

Mr. BROUN. Well, you did say that. Are you expanding your authority here with this proposed rule? 

Mr. PERCIASEPE. No. 

Mr. BROUN. None whatsoever? 

Mr. PERCIASEPE. No. 

Mr. BROUN. Why have the new rule then? 

Mr. PERCIASEPE. Because the existing rule, as I mentioned, is 

based on flawed approaches to determining jurisdiction. It is actually more broad than the Supreme Court has asked us to—— 

Mr. BROUN. Well, let me ask you this then. Do you believe this 

rule improves the overall clarity of EPA’s jurisdictional authority? 

Yes or no? 

Mr. PERCIASEPE. Yes. 

Mr. BROUN. You think it does? Well, you are absolutely incorrect. 

You can just see the questions that we are asking here. This rule 

is not needed. The Supreme Court didn’t tell you to make a new 

rule. It said that you could. And to me it is expanding the authority 

and reach of the EPA and that is the reason there is so much dis-
50 

content all across this country, not only in my State of Georgia but 

in every State in this country because you all are expanding your 

authority. 

Now, you talked about if anybody wants to put a pollutant into 

water, they have to get a permit. EPA has recently—fairly recently 

said that CO2 is a pollutant. We are all breathing out a pollutant 

according to you all’s determination. Now, given the importance of 

this issue, why has the EPA not done more original research on 

this issue and looked at a number of questions such as significant 

nexus? 

Mr. PERCIASEPE. Yes. Well—— 

Mr. BROUN. Quickly, please. I don’t have much time. I have got 

a number of questions. Why have you not done the research? 

Mr. PERCIASEPE. We have looked at over 1,000 peer-reviewed 

studies that have already been done. 

Mr. BROUN. You just looked at the literature, is that correct? You 

have not done any more research than—— 

Mr. PERCIASEPE. Our scientists compiled a synthesis report on 

the existing research that exists—— 

Mr. BROUN. But you have not done any original new research, is 

that correct? Yes or no? 

Mr. PERCIASEPE. Not—— 

Mr. BROUN. No, you have not. It looks like the EPA has been cutting corners by not doing a new study. Shouldn’t EPA’s rulemaking 

be based on sound science as determined independently by the 

Agency? 

Mr. PERCIASEPE. It is based on sound science. 

Mr. BROUN. No, sir, it is not. And in fact you even intercepted 

our questions against the law and are, as the Chairman and Mr. 

Cramer was talking about, you have gone against what should be 

done. Why did EPA not do a new study given the Supreme Court’s 

rulings that previously rejected EPA’s reliance on bed, banks, and 

high water mark, why only a literature review? 

Mr. PERCIASEPE. I am not aware that the Supreme Court rejected bed, banks, and ordinary high water mark. I know that they 

rejected in the SWANCC opinion making jurisdictional cause solely 

on the basis of migratory birds, which gets me back to the interstate commerce problem of the existing regulation asking field biologists and hydrologists to make a determination of what is affecting interstate commerce. So we need to get away from that. The 

Supreme Court wants—would like us to get away from that. 

I want to clarify for the record, Mr. Chairman, that Chief Justice 

Roberts did suggest that the Agency conduct a rulemaking. 

Mr. BROUN. But was you all’s proposed rule is so unclear that everybody—farmers, businessmen, landowners, politicians, Democrats, and Republicans alike—are requesting you all to take away 

this proposed rule, to abandon it and do something else, and I request that you do the same thing. 

It is beyond me why you all are continuing to do so. You are cutting—with your coal rules, your—the President has been very 

clear. He wanted to shut down the coal industry. He said he is 

going to bankrupt any company that puts out a new coal plant. 

And he is—he and you all, through the EPA, is doing just exactly 

that. In fact, you are shutting down 15 power plants in Georgia, 
51 

and it is not fair to poor people and senior citizens on limited income because, as the President said, his policies are going to necessarily skyrocket the cost of energy, and that is exactly what you 

guys are doing at the EPA and that is unfair, unfair to poor people. 

It is unfair to senior citizens who have a limited income. And what 

you are doing now is expanding the jurisdiction and scope of the 

Corps of Engineers as well as the EPA. Would you agree—one 

question—one final question since my time is up. Would you agree 

that every drop of water that falls on this country is going to eventually wind up potentially in a navigable stream? Yes or no? 

Mr. PERCIASEPE. That is the science of hydrology. 

Mr. BROUN. Well, yes or no? 

Mr. PERCIASEPE. Yes. 

Mr. BROUN. It does. And what you are going to do as you are 

going to—— 

Mr. PERCIASEPE. It could end up in groundwater—— 

Mr. BROUN. —control every—— 

Mr. PERCIASEPE. It could end up being groundwater or—— 

Mr. BROUN. You are going to control every piece of land and 

every landowner. 

Mr. Chairman, I yield back. 

Mr. PERCIASEPE. But those are not jurisdictional. The backyard 

water is not jurisdictional. Mr. Chairman, can I please—— 

Mr. SCHWEIKERT. No, we will come back to that. 

Mr. Broun, thank you. 

Mr. Hall. 

Mr. HALL. I think this is a very interesting hearing, Mr. Chairman, and I thank you. I have learned a lot about arrogance. I agree 

with Mr. Collins and I think Dizzy Dean always said that it ain’t 

bragging if you could do it and I have always heard the professor 

asked one of his students did he know the difference between ignorance and apathy? He said he didn’t know and he didn’t care so 

I think I have got an idea about what you are going through out 

there because Ms. Edwards recommends you and enjoys you and 

sees the best in you and she is a lady and attempting to do what 

all of us are doing, trying to get you to tell us the truth, to do what 

you say you are going to do. 

And I thank you for holding this hearing, Mr. Chairman. This 

controversial proposal that raises a lot of questions about the rules, 

the potential impact on property owners, on businesses, States, and 

I want to examine just some of these as long as I have the time. 

First, I would like to submit a letter and a resolution for the 

record from the Morris County Commissioners Court in my district. 

Morris County Judge Linda Munkres writes that ‘‘Morris County 

is against any action by the EPA and the Army Corps of Engineers 

that would infringe upon the sovereignty of Texas to appropriately 

regulate water to the State of Texas.’’ She continues, ‘‘if adopted, 

this would increase the need for burdensome and costly permitting 

requirements that infringe on private property rights and circumvent the legislative process and the will of the people of Texas.’’ 

Now, to go on, in February this Committee heard testimony from 

Kenneth Dierschke, President of the Texas Farm Bureau, expressing farmers’ concern with the proposed rule that would mean more 

permits, more permit requirements, and the threat of additional 
52 

litigation against farmers and ranchers, and he also expressed concern that EPA seems to routinely ignore the requirement that 

Science Advisory Board panelists be fairly balanced. 

Mr. Administrator, as you know, the EPA Administrator’s Office 

is responsible for appointing members of the Agency’s scientific advisory panels, including the Science Advisory Board, and late last 

year EPA assembled a panel to review the Agency’s Draft 

Connectivity Report, a highly influential assessment that you stated would inform EPA’s expanded interpretation of its power under 

the Clean Water Act. 

Well, your office appointed 27 experts to this panel. Many of 

these 27 were state, local, or tribal regulators. How many do you 

think were? It is my understanding that answer is zero. Nine highly qualified state and local experts from the Arizona Department 

of Water Resources and the North Carolina Division of Water Quality and elsewhere were nominated to serve on this panel. Why did 

the EPA not appoint any of these state and local experts? 

Similarly, last year EPA assembled a Science Advisory Board 

panel to review the Agency on ongoing study of hydraulic fracturing. Thirteen qualified scientists from state and local agencies 

were nominated, including two top-notch toxicologists from the 

Texas Commission on Environmental Quality. Despite their vast 

experience, Mr. Administrator—their experience with oil and gas 

regulation, none of these nominees were appointed to the 39-member board and I wonder why they weren’t. 

And would you explain in some areas that lacked local water 

quality regulation of oil and gas activities state and local officials 

have more expertise than the EPA, would you agree that the States 

have decades if not centuries of experience in some of these areas? 

Former Chairman of the Railroad Commission, Elizabeth Ames 

Jones, has so testified before this Committee. And I ask you will 

you commit to appointing geographically diverse state and local experts to all EPA’s scientific panels in the future? 

And finally, sir, in view of the potential impacts and costs of the 

EPA’s proposed rules, shouldn’t the States have more opportunity 

to provide input and shape a rule because they will bear so much 

of the cost? 

EPA says it has consulted with States regarding a proposed rule, 

but in your recent testimony before the House Transportation and 

Infrastructure Committee, you cannot name a single state that had 

come out in support of the rule and you promised to survey the 

States. Has that survey been conducted and what methodology is 

being used to conduct the survey? 

Mr. Chairman, the rule has far-reaching implications that need 

to be thoroughly, absolutely thoroughly examined, and I thank you 

for your leadership on this Committee. I yield back the time that 

I am absolutely out of, so maybe you will answer this in a letter 

I will send to you. 

Mr. Chairman, I yield back two seconds. 

Mr. SCHWEIKERT. Thank you, Mr. Hall. 

And, Mr. Hall requests a U.C. to put documents in the record? 

Mr. PERCIASEPE. I will respond for the record. 

Mr. SCHWEIKERT. Put documents in the record, so ordered. 

[The information appears in Appendix II 
53 

Mr. HALL. Thank you. 

Mr. SCHWEIKERT. Even though he is out of time, please give us 

a bit and then we will continue to move on. 

Mr. PERCIASEPE. Thank you, Mr. Chairman. 

We do have a defined process for picking members of the Science 

Advisory Board. It is a public process. An advertisement goes out 

to get nominees. You mentioned that some of those nominees came 

in. They are screened by the SAB staff for conflicts of interest and 

ethics issues and we do strive to have a diverse board, so I would 

certainly commit to looking at how we can continue to improve to 

do that and it is our intent to have a diverse board. And I want 

to—— 

Mr. SCHWEIKERT. And on that—— 

Mr. PERCIASEPE. —absolutely agree that the states have significant and important—and we need to rely on expertise in the area 

of hydraulic fracturing. 

Mr. SCHWEIKERT. And for the staff sitting behind you, if you 

would be willing to send Mr. Hall a note—— 

Mr. PERCIASEPE. Yes. Yes. Absolutely. 

Mr. SCHWEIKERT. —sort of explaining some of the mechanics. 

And with that, Mr. Hall, because I am going to do some switching around with my own slot, Mr. Hultgren, please. 

Mr. HULTGREN. Thank you, Chairman, so much. I appreciate 

your flexibility on that. 

First, I would ask unanimous consent to submit for the record a 

letter from the Illinois Chamber of Commerce in opposition to the 

rule. I am gravely concerned about what they talk about would significantly add to the already unprecedented level of uncertainty our 

members face from new rules and regulations so I would ask that 

the—— 

Mr. SCHWEIKERT. U.C. requested. Any objections? 

So ordered. 

[The information appears in Appendix II] 

Mr. HULTGREN. Thank you, Mr. Chairman. Thank you, Administrator, for being here today. 

It really is crucial that the EPA regulations are based on science, 

so I appreciate you being here so that I can learn and try and explain to my constituents the process that you all go through before 

drafting and finalizing new rules and regulations. My concerns will 

deal directly with the scientific advisory board. So the first thing 

I will ask, and I hope this will be a simple ‘‘yes’’ answer, but does 

EPA hold the findings of its scientific advisory board in high esteem? 

Mr. PERCIASEPE. Extreme high esteem. 

Mr. HULTGREN. This is certainly good to hear because science 

should always be the backbone of what you are doing it EPA, something your Administrator frequently cites and that we normally 

hear when receiving testimony from your agency before this Committee. Interestingly enough, it was not in your 10-page written 

testimony here today. 

I understand that a draft rule is just that, a draft, but you have 

said throughout your testimony that this rule is something that is 

supposed to bring clarity to the jurisdiction that the Agency already has. Unfortunately, as we can see from discussion today, this 
54 

rule is not very clear and my constituents have a number of questions about how it will be affecting them. 

In the draft rule, does EPA define what a shallow subsurface 

hydrological connection is? Is this something you leave to further 

examination of the literature or is it expressly defined in the rule? 

And at what depth does water below the surface cease to be shallow subsurface and turn into groundwater? 

Mr. PERCIASEPE. The use of the shallow subsurface water I 

think—I am going to say I think—— 

Mr. HULTGREN. Does it define—my question was does the EPA 

define what sub shallow subsurface hydrological connection is—or 

is that left to further examination of the literature as expressly defined in the rule? 

Mr. PERCIASEPE. It is something that the Science Advisory Board 

is looking at. It is something they gave us some advice on in their 

draft statement, but I want to point out and I want to be really 

clear, groundwater is not covered by this rule. 

Mr. HULTGREN. So this is not expressly defined in the rule and 

the depth where water ceases to be shallow surface and turn into 

groundwater is not defined, so that is—although you are saying it 

is not under the rule, the fact is it is not defined of when it turns 

into groundwater and therefore does fit under the rule. 

Let me keep moving because my time is going to go away. 

In comments on the connectivity report, the scientific advisory 

board recommended EPA consider where along a gradient of 

connectivity groundwater connections are of sufficient magnitude to 

impact the integrity of downstream waters. The scientific advisory 

board stated ‘‘this represents an important research need for EPA.’’ 

Considering this is still an active research need and the 

connectivity report is being used by EPA to support the proposed 

rule, how does EPA justify the use of shallow subsurface groundwater connectivity to determine jurisdiction? 

Mr. PERCIASEPE. We use—the rule—and I think there are a number of different pieces of what you have just suggested there, but 

the rule uses the connection with subsurface shallow groundwater 

as a way to determine adjacency, not—the groundwater, I want to 

be clear, whether it is shallow, deep, anywhere, is not covered by 

this rule. It is just a hydrologic tool to determine whether or 

not—— 

Mr. HULTGREN. See, the problem is it is unclear where it goes 

from one to the other and that is—if you are having trouble explaining it to us, guess what my constituents are having trouble 

doing? 

Mr. PERCIASEPE. Oh, I am just telling you—— 

Mr. HULTGREN. They are having great difficulty—— 

Mr. PERCIASEPE. Subsurface groundwater is not covered by the 

rule. 

Mr. HULTGREN. Mr. Perciasepe, but it slips into it. That is what 

they are saying is that it becomes—there is—it is undefined of 

when it moves from sub—shallow subsurface hydrological shallow 

subsurface into groundwater. 

Let me—I have got less than a minute. How can a regular citizen 

be expected to know whether or not they are digging into something that would be groundwater which would, as you say, is ex-
55 

empt under the rule or shallow subsurface water where the CWA 

comes into play? Is it the responsibility of the landowner to review 

the literature since it is not clearly defined in the rule? 

Mr. PERCIASEPE. They are both not covered by the rule. 

Mr. HULTGREN. So you are saying shallow subsurface water is 

not covered under the rule? 

Mr. PERCIASEPE. Correct. It is used has a hydrologic tool for field 

people to determine the adjacency of a—— 

Mr. HULTGREN. In the shallow subsurface hydrological connection. That is the connectivity. 

Mr. PERCIASEPE. That is the hydrologic that it looked at to see 

whether the surface water feature might be adjacent to a traditionally navigable—— 

Mr. HULTGREN. The message I got—— 

Mr. PERCIASEPE. Actual groundwater is not jurisdictional. 

Mr. HULTGREN. This is less clear to me than when I walked in 

here. I think it is probably the same for my constituents, huge concern. I hope if nothing else you get the fact that we are concerned 

about this. There is already such a lack of clarity in so many of 

the rulemakings, this one probably more than anything else we are 

hearing huge concerns from business, from farmers. I have got a 

great business community. I have got a great agriculture community in my district. They just don’t understand this and they are 

scared to death. We need clarity. We need to take a step back. 

With that, Chairman, thank you so much for your indulgence 

and I yield back. 

Mr. SCHWEIKERT. Thank you, Mr. Hultgren. 

Mr. Weber. 

Mr. WEBER. Thank you. 

Mr. Perciasepe, the proposed rule asserts jurisdiction over perennial strains, is that right? 

Mr. PERCIASEPE. Yes. 

Mr. WEBER. Okay. Love the short answers. What about intermittent and ephemeral strains? 

Mr. PERCIASEPE. Yes. 

Mr. WEBER. Okay. Canals and ditches? 

Mr. PERCIASEPE. Mostly no. 

Mr. WEBER. Lakes, estuaries? 

Mr. PERCIASEPE. Estuaries—— 

Mr. WEBER. Okay. 

Mr. PERCIASEPE. —lakes, yes. 

Mr. WEBER. We put up a map here which is provided by the U.S. 

Geological Survey, USGS, that shows these features in my State, 

the State of Texas where I live. I would love to—I claim it as mine 

of course. I am very proud of it. 

The key shows the colors that correspond to the features. Now, 

missing from this map are wetlands, ditches, and other features 

that the EPA and the Army Corps of Engineers claim jurisdiction 

over. Can you see that map? 

Mr. PERCIASEPE. I see the map but I want to be clear we are not 

claiming jurisdiction over ditches. 

Mr. WEBER. Okay. Well, this map is not for regulatory purposes. 

We had them made by the USGS based on some of the EPA’s—just 

some of the EPA’s definitions. The map is dramatic. But 
56 

shockingly, what I have read of the proposed rule, the EPA could 

go farther than what we see here. In fact, the EPA cites a study 

that estimated that the USGS maps under-represent drainage networks by 64.6 percent. That is their quote. Scale up the features 

covered by 60 percent and include wetlands, and we are looking at 

a regulated area close to double the size of what is on this map. 

Yet remarkably, you claim that the proposed rule does not—you 

said this in exchange with one of the other Members—it does not 

extend the Agency’s authority. Then he asked you then why do you 

need the rule? 

There is no way that this is what Congress intended. The Supreme Court has rebuked the Agency for claiming authority over 

areas that are remote from waters that are ‘‘navigable in fact.’’ So 

why is the EPA disregarding the Supreme Court and Congressional 

intent? Is the EPA above the other branches of the Federal Government? Are you above the Constitution? 

Mr. PERCIASEPE. Absolutely not. 

Mr. WEBER. I would agree with that. But it doesn’t appear to the 

American public like—that is you all’s mindset. 

Let me follow up on a question asked by Chairman Smith. I understand that the EPA has asked the United States Geological Survey to make maps similar to this one here for every State. I think 

it is important that the EPA release these maps as part of this 

rulemaking process. Today’s entire hearing has been about what is 

and what isn’t covered by this proposal. And as a part of the Randy 

caucus down there said earlier, and EPA’s answers aren’t making 

the situation any clearer. And I would add the truth isn’t exactly 

flowing around here. The EPA needs to release these maps so our 

constituents can identify for themselves whether they are subject 

to regulation. 

So here today will you commit to releasing these maps that the 

EPA had made before the end of this month so that people can 

comment on them as part of the rulemaking process as the Chairman has requested? 

Mr. PERCIASEPE. These maps have come up before and I have to 

apologize. I am actually really not familiar with them. 

Mr. WEBER. You are in the dark about this? 

Mr. PERCIASEPE. I—— 

Mr. WEBER. As most of our constituents are about this proposed 

rule. 

Mr. PERCIASEPE. That is unfair. 

Mr. WEBER. Unfair. That is our constituents’ perception out 

there. 

Let me go on. Mr. Chairman, I think that it is important enough 

that if this agency doesn’t release the maps by the end of July, that 

this Committee compel the release. 

My constituents, our constituents are confused and quite frankly 

scared by this proposal, this overreach. I think the only way we can 

get to the bottom of what is being planned here for regulation is 

to see it laid out on a map. So here today I request that you make 

available to us and the American people the maps that the EPA 

had made from the USGS, as well as the wetlands map made by 

the Fish and Wildlife Service. We want these maps. My guess is 

that they were created by—with taxpayer dollars unless I miss my 
57 

guess. They should be available to the taxpayers in full disclosure 

and we want you to make these maps available. 

Mr. Chairman, I yield back 10 seconds. 

Mr. SCHWEIKERT. Sorry, Mr. Weber. And we were discussing 

whether there should be a penalty box for puns. 

Dr. Bucshon. 

Mr. BUCSHON. Thank you, Mr. Chairman. 

First of all, I would like to ask unanimous consent to enter into 

the record an analysis of EPA’s connectivity study prepared by GEI 

for the Waters Advocacy Coalition. The Waters Advocacy Coalition 

is a large group of stakeholders that have come together with concerns about the rule and include everyone from farmers to homebuilders. The analysis point out flaws and with the report’s scientific vigor and draws into question the report’s usefulness in a 

regulatory context. 

Mr. SCHWEIKERT. And we have a U.C.? 

Mr. BUCSHON. Yes. 

Mr. SCHWEIKERT. No objection, so ordered. 

[The information appears in Appendix II] 

Mr. BUCSHON. I would also like to introduce a letter from that 

Indiana Chamber of Commerce expressing concerns about the potential impacts of the rule on Indiana’s economy. 

Mr. SCHWEIKERT. Any objection? So ordered. 

[The information appears in Appendix II] 

Mr. BUCSHON. This is a letter to me and I will just read the last 

paragraph from the Indiana Chamber of Commerce. ‘‘We ask that 

you stop EPA from finalizing this proposed rule that would create 

a significant amount of uncertainty and would impact the Hoosier 

business community in a detrimental way. It seems like another 

chapter in EPA’s lengthy tome of bureaucratic overreach. It is time 

to put a stop to federal intrusion on intrastate matters, especially 

when the intrusion is occurring as a result of executive fiat versus 

Congressional passed legislation.’’ 

First of all, I would like to thank you for being here and thank 

you for your work at the EPA. I think just because we may have 

philosophical disagreements doesn’t mean that you are not working 

hard to do your job and I understand that and I thank you for that. 

But we do have some philosophical disagreements probably on this 

proposed rule and I have got some concerns from my Indiana Farm 

Bureau. 

First of all, I mean this has been on the books for 30 years. Why 

now? 

Mr. PERCIASEPE. The—one of the primary drivers is the fact— 

and this goes back to the previous exchange—that the Supreme 

Court has had two separate—actually more than two but two in 

particular where they have looked at the existing way the agencies 

plural, the Corps of Engineers and EPA, go about making jurisdictional determination. Where does the Clean Water Act apply? And 

again, where the Clean Water Act applies will only affect anybody 

if they are going to discharge pollution and it doesn’t affect agriculture, so I want to be clear on that. 

But we have to change the way we go about doing that to comply 

with. And that is—you know, and here is where I think I agree 

with the mutual respect thing. I think we are trying to comply with 
58 

what the Supreme Court has suggested is the way to go about 

doing it and I think it is totally appropriate but there may be a 

different point of view on that. So I am not—— 

Mr. BUCSHON. Okay. I will take you at your—— 

Mr. PERCIASEPE. I am with you on that. 

Mr. BUCSHON. I will take you at your word on that. 

Mr. PERCIASEPE. That is what we are trying to do. 

Mr. BUCSHON. As far as exemptions go, who has the ability to 

eliminate exemptions once—say, for example—my main concern is 

jurisdictional here on this issue, States, local communities versus 

the Federal Government and the—— 

Mr. PERCIASEPE. Yeah. 

Mr. BUCSHON. —potential expanded jurisdiction of the Federal 

EPA over the states and the local communities. You know, people 

in agriculture, for example, they are touting 54 exemptions to agriculture, but who has the ability to change the exemptions once the 

jurisdiction is established? 

Mr. PERCIASEPE. Yeah. Well, the exemptions are pretty—they are 

outlined generally in the Clean Water Act itself and what we are 

trying to do is define them a little bit more clearly working with 

the U.S. Department of Agriculture, particularly the exemptions 

that refer to conservation practices that take place on agricultural 

lands. So that would—those are—we feel they are already exempt 

but the need to clarify specifically which kinds of practices are exempt are what we are trying to do. We have heard from farmers 

that we are getting too specific and what if they did it in a slightly 

different way; would that then not cover it? So that is the kind of 

thing that we normally would here and try to fix. 

Mr. BUCSHON. Yeah, because the concern I have which is many 

of my constituents do, and honestly I think the American people, 

not specific to the EPA but the Federal Government in general, 

once the Federal Government has jurisdiction but then the rules— 

that—you know, then the rules suddenly change. And I think you 

are saying that in healthcare. I am healthcare provider. I was a 

heart surgeon before coming here. You know, once jurisdiction has 

been established at the federal level, backing that away is, first of 

all, nearly impossible; and secondly, the concern is that the rules 

will change, including exemptions for agriculture or anything else. 

And so that is my concern. 

I do have a couple specific questions about—— 

Mr. PERCIASEPE. Okay. 

Mr. BUCSHON. —farming and I appreciate your response. These 

are concerns from Indiana Farm Bureau that farmers have told 

them. And, for example, ditches, if a farmer has a ditch that runs 

alongside between farm fields and those ditches carry rainwater 

that eventually flows to a stream or river, how can the farmer determine whether those ditches are excavated only in uplands and 

drain only uplands? 

Mr. PERCIASEPE. Well, based on what you described, that is what 

it is and it would not be jurisdictional. 

Mr. BUCSHON. But the farmer determines that or the EPA determines that? 

Mr. PERCIASEPE. EPA doesn’t determine it. The Corps of Engineers does the fieldwork. If the farmer wanted to discharge pollu-
59 

tion into that or do—or something else, but we try to make it clear 

in the rule and for the first time the definition actually includes 

these exclusions of these kinds of ditches. 

Mr. BUCSHON. Okay. If a farmer has a small depression area in 

their farm fields where water ponds after rain, how can a farmer 

know whether these are Waters of the United States under the proposed rule? 

Mr. PERCIASEPE. They are not. 

Mr. BUCSHON. They are not? 

Mr. PERCIASEPE. They are not. 

Mr. BUCSHON. It says that in the rule? 

Mr. PERCIASEPE. You know, I don’t know exactly where it says 

it in the rule but they are not—— 

Mr. BUCSHON. Okay. 

Mr. PERCIASEPE. —because they don’t meet the other definition—— 

Mr. BUCSHON. Yeah. 

Mr. PERCIASEPE. —of being a water. They don’t have a bank and 

a high water mark. They don’t have hydric soils. They are—— 

Mr. BUCSHON. Yeah. 

Mr. PERCIASEPE. —farmed lands which are—— 

Mr. BUCSHON. Yeah. And that is what I am trying to get at with 

these questions is where the rule—the level of uncertainty on the 

ground out in the community is about the proposed rule generates 

these type of questions. And so that is what needs to be cleared up 

because, again, from my perspective, once the Federal Government 

establishes jurisdiction, retracting that is a very difficult if not impossible, and also there is concern that the rules within that jurisdiction will change and you are getting this level of uncertainty 

amongst farmers. I just did an event in my district with farmers, 

Indiana Farm Bureau. All of these questions came up. 

Mr. PERCIASEPE. Right. 

Mr. BUCSHON. The main question is jurisdictional, and with that, 

I am going to have to yield back. 

Mr. PERCIASEPE. Okay. 

Mr. BUCSHON. Thank you, Mr. Chairman. 

Mr. PERCIASEPE. But, rest assured, wet farm fields are not jurisdictional. And I—just to add—to be—help a little bit on the jurisdiction thing, in almost every State, and I think probably every 

State, the States are responsible for implementing the Clean Water 

Act, so the jurisdictional determination may determine where they 

have to do their work but the States are the ones that do most— 

virtually all of the implementation. 

Mr. BUCSHON. Thank you. 

Mr. PERCIASEPE. I am sorry, Mr. Chairman. 

Mr. SCHWEIKERT. Thank you, Doctor. 

Professor Massie. 

Mr. MASSIE. I am not a professor. 

Mr. SCHWEIKERT. Yes, but we—never mind. 

Mr. MASSIE. Very quickly, let me ask you this, Mr.—— 

Mr. PERCIASEPE. Bob. 

Mr. MASSIE. Bob. Okay. Thank you. Do you anticipate having a 

larger budget at the EPA next year or a smaller budget? 

Mr. PERCIASEPE. The—for 2015? 
60 

Mr. MASSIE. Yeah. 

Mr. PERCIASEPE. The President’s budget that was submitted to 

Congress is smaller than 2014. 

Mr. MASSIE. Okay. What is the additional cost of implementing 

this new rule? 

Mr. PERCIASEPE. Well, it is a combination between EPA and—— 

Mr. MASSIE. We—well, I ask this question—— 

Mr. PERCIASEPE. —the Corps of Engineers. 

Mr. MASSIE. We met before in the Transportation Infrastructure 

Committee, so I asked the question then. I will ask you again. 

Hopefully we get the same number. What is the cost of implementing this rule? 

Mr. PERCIASEPE. If you let me shuffle a paper, I will give you the 

same answer. It is—— 

Mr. MASSIE. I will give it to you. I don’t want to put you on the 

spot. It was $100-$200 million. Does that sound about right? 

Mr. PERCIASEPE. That sounds in the ballpark. 

Mr. MASSIE. I have the transcript. 

Mr. PERCIASEPE. I can get it. 

Mr. MASSIE. Isn’t it a little bit fiscally irresponsible to undertake 

a $100-$200 million project when you anticipate your budget will 

decrease? 

Mr. PERCIASEPE. When we do those cost estimates, we are doing 

those cost estimates on what the cost to the economy is, so that 

means like 160 to 280 million. 

Mr. MASSIE. Okay. 

Mr. PERCIASEPE. And those are permit processing expenses and 

mitigation expenses that might have to come into play if somebody 

wants to get a permit and they have to—— 

Mr. MASSIE. So you—— 

Mr. PERCIASEPE. They can do the activity but they have to do 

mitigation. 

Mr. MASSIE. You plan on passing those costs onto the people that 

are going to file for permits? 

Mr. PERCIASEPE. Well, those are the costs we estimated—— 

Mr. MASSIE. Um-hum. 

Mr. PERCIASEPE. —of doing the permits and also doing the mitigation. 

Mr. MASSIE. I think it is fiscally irresponsible to undertake this 

new rule that will undeniably cost you more money to implement 

when you know in fact the President acknowledges your budget is 

going to go down. 

Let me ask you another question. Can you have science without 

measurements, without numbers, without units? 

Mr. PERCIASEPE. For most science you need that. Now, I am 

going to say that—— 

Mr. MASSIE. That is—I think so, too. 

Mr. PERCIASEPE. —there is probably some that you don’t, but—— 

Mr. MASSIE. Well, I am looking at the rule here. I can’t find any 

numbers. I can’t find any unit measurements. Let me give you an 

example. The definition of a floodplain, ‘‘the term floodplain means 

an area bordering inland or coastal waters that was formed by 

sediment deposition from such water under present climatic condi-
61 

tions and is inundated during periods of moderate to high water 

flows.’’ Is ‘‘moderate to high’’ a scientific term that—— 

Mr. PERCIASEPE. I think these are terms that are used routinely 

in the science of hydrology. 

Mr. MASSIE. Can you—you can—okay. Can you convert that to 

gallons per minute, moderate to high? 

Mr. PERCIASEPE. It depends on the size of the stream and the 

drainage area. 

Mr. MASSIE. Okay. 

Mr. PERCIASEPE. Or in the case of the Atlantic Ocean, it is pretty 

big. 

Mr. MASSIE. You know what, without facts, all you have is an 

opinion, and this leaves it open to opinion. So without units, you 

cannot have science without measurements. 

Let me ask you another question from the definition here. These 

are features that are exempt under this rule. One of them is an artificial lake or pond created by excavating and/or diking dry land. 

I own a farm and I have built a few ponds. The last place I would 

put a pond is where there is dry land, where there is no water. 

How can you dike dry land and create a pond for irrigation? 

Mr. PERCIASEPE. Well, you take an area of a stream that—I 

mean an area of the field or woodland where the slope is in this 

direction and you—— 

Mr. MASSIE. Um-hum. 

Mr. PERCIASEPE. —put up a—— 

Mr. MASSIE. So there is a flow of water—— 

Mr. PERCIASEPE. —dike and when it rains, the water comes down 

and it—— 

Mr. MASSIE. Right. 

Mr. PERCIASEPE. —settles behind the—— 

Mr. MASSIE. So you get some water that is not coming—not just 

landing in the pond but from—— 

Mr. PERCIASEPE. Yeah. 

Mr. MASSIE. —surrounding areas? 

Mr. PERCIASEPE. Yeah. 

Mr. MASSIE. So there is a flow across that land? 

Mr. PERCIASEPE. Yes. 

Mr. MASSIE. So if the goal here is to create an exemption for 

landowners that they can understand, why wouldn’t you put a scientific unit of measure in there? Like what is a unit of measure 

for a pond or lake? 

Mr. PERCIASEPE. Gallons. 

Mr. MASSIE. It is gallons but that is a little hard to—that is a 

good number. Acre-feet is another word—— 

Mr. PERCIASEPE. Acre-feet is a bigger one. 

Mr. MASSIE. —is another one that is commonly used. Yeah. So 

why wouldn’t you put a definition in there that is scientific? Because clearly there is flow of water going into this, so there has to 

be some flow. You could define it in gallons per minute or something like that, the pond in acre-feet, because it is clearly not going 

to be on dry land if you are creating this or it wouldn’t exist. You 

would have a dry pond, and I have built a few of those, too. 

Mr. PERCIASEPE. Well, the concept of dry land is that land is 

not—— 
62 

Mr. MASSIE. Explain that to me. 

Mr. PERCIASEPE. It is not currently a lake or a stream or a river. 

It is—— 

Mr. MASSIE. I think it has to be under a roof really to be completely dry. There has to be some flow. What I am asking here is 

for some definition—— 

Mr. PERCIASEPE. It is a term of art in hydrology. 

Mr. MASSIE. A term of art. I would like a term of science, like 

when you define a bank, how tall is the bank in feet? 

Mr. PERCIASEPE. There are criteria for a bank—— 

Mr. MASSIE. How—— 

Mr. PERCIASEPE. —and there is criteria for a high water mark. 

Mr. MASSIE. So on the—let’s just—quickly, my time is almost expired—on a floodplain, what are the units to define the size and 

scope of a floodplain? 

Mr. PERCIASEPE. Normally, floodplains are defined by the frequency—— 

Mr. MASSIE. That is how we define them—— 

Mr. PERCIASEPE. The frequency of inundation. 

Mr. MASSIE. Correct. So why wouldn’t you define a floodplain 

that way instead of leaving it so open-ended to say that it is moderate to high water flows? 

Mr. PERCIASEPE. Well—— 

Mr. MASSIE. Would you agree that is not a scientific term, moderate to high? There is no units, there is no number. 

Mr. PERCIASEPE. We have asked for help in defining the size of 

the floodplain. It is a specific question we have asked in the proposal. 

Mr. MASSIE. Well, that is a science that is already established. 

Mr. PERCIASEPE. Yes. 

Mr. MASSIE. I suggest you go use some science. Thank you. 

Mr. PERCIASEPE. So it is 100, 500, you know, we have asked for 

advice on what size and how to do that. 

Mr. MASSIE. Well, it is very clear science. You could use some 

science in these definitions. Thank you. 

Mr. SCHWEIKERT. Thank you, Mr. Massie. 

Mr. Brooks. 

Mr. BROOKS. Thank you, Mr. Chairman. I don’t know, but having 

heard those questions, it sure seems to me that Mr. Massie has a 

doctorate. Maybe we ought to give him an honorary one right here 

and now. 

Mr. PERCIASEPE. Yes, it was professor-like. 

Mr. BROOKS. Mr. Chairman, I have a letter from Jimmy Parnell 

of Alabama Farmers Federation dated July 8, 2014, that I would 

like entered into the record. 

Mr. SCHWEIKERT. Any objection? So ordered. 

[The information appears in Appendix II] 

Mr. BROOKS. Thank you, Mr. Chairman. 

It is my understanding that this rule relies on the ‘‘significant 

nexus’’ test to determine what ‘‘other waters’’ would be regulated. 

As all hydrological connections are certainly not significant, can 

you please explain how the Agency plans to identify what constitutes a significant connection? Does the Agency plan to establish 

some means of quantifying the significance of a hydrological con-
63 

nection? If so, can you provide a real-world example of how the determination would be made? 

Mr. PERCIASEPE. We have tried to use two key established approaches to define when it is significant because I think, as many 

have pointed out already and I think it is worth noting that the 

broader hydrologic cycle, almost anything can be defined as connected. And so—but significant is a very important component of 

how we are going to have to do the work here. 

So we have proposed that if it is a tributary that runs either all 

the time or seasonally, as Justice Scalia outlined, that it would 

have to be—it would have to have water in it enough that it had 

a defined bank, high water mark, and a bed. Now, there are criteria for those that are defined in the science of hydrology, so if it 

doesn’t have those characteristics, then we are saying there is not 

enough time that water is flowing in it that it is significant, so it 

is not significant. So that means the puddle in my backyard, my 

roof drains, things like that don’t have those characteristics so they 

are not significant, they are not covered. Wet field, same situation. 

On—and for standing water, obviously if it is a lake that is wet all 

the time or if there is a wetland that has the characteristic hydric 

soils and hydrophytic vegetation that is characteristic in science of 

what a wetland is, then that would be significant. 

Then there are other issues that have—that the Supreme Court 

has asked that be considered, things like adjacency, et cetera. So 

if you have some of these characteristics but you are not adjacent, 

you know, are you—that—and we have proposed some approaches 

to deal with that issue as well. 

Mr. BROOKS. All right. Thank you. 

Let me move to my second question. Dr. David Sunding, a Professor at the University of California Berkeley, hardly a conservative bastion, has published a report on the Agency’s economic 

analysis of this rule and I am going to quote from his remarks. 

‘‘EPA is proposing an expansion of the definition of the term Waters of the United States to include categories of waters that were 

previously never regulated as Waters of the United States such as 

all waters in floodplains, riparian areas, and certain ditches. The 

inclusion of these waters will broaden the scope of the Clean Water 

Act and will increase the cost associated with each program. 

Unfortunately, the EPA analysis relies on a flawed methodology 

for estimating the extent of newly jurisdictional waters that systematically underestimates the impact of the definitional changes. 

This is compounded by the exclusion of several important types of 

cost and the use of a flawed benefits transfer methodology which 

EPA uses to estimate the benefits of expanding jurisdiction. The errors, omissions, and lack of transparency in EPA’s study are so severe as to render it virtually meaningless.’’ Now, those are Dr. 

Sunding’s words, not mine. 

How can Congress or the public adequately evaluate the scientific and economic impacts of EPA’s proposal if the economic 

analysis is as problematic as Dr. Sunding indicates? 

Mr. PERCIASEPE. Well, I—we have that report. I haven’t personally read it yet but it is certainly going into the docket. We will formally put it in our docket for this rule and we will analyze it and 

see what we may need to do to our economic analysis. But I can 
64 

tell you right off—and we had a discussion about this earlier and 

I was probably less successful than I would desire to explain this— 

but all floodplains are not jurisdictional waters. Just the fact that 

it is inundated, let’s say, annually by a spring flood or every ten 

years by a ten-year flood does not make it jurisdictional. It is just 

an indicator that the water that is there all the time or under 

those other characteristics I just mentioned to you then would be 

jurisdictional because they are adjacent to the other stream. We 

use it as a way to determine in the science of hydrology whether 

it is adjacent. 

So if you make an assumption that the entire landmass of a 100- 

year floodplain would somehow require a permit and everything, 

then you get into this situation that I think that analysis did 

where is that we are underestimating. But I am—I want to be 

more clear on that and we are going to look into that in more detail. 

Mr. BROOKS. Thank you, Mr. Chairman. 

Mr. SCHWEIKERT. Thank you, Mr. Brooks. 

Mrs. Lummis. 

Mrs. LUMMIS. Thank you, Mr. Chairman. And thank you, Mr. 

Perciasepe, for being here. 

This is the rule that terrifies people in my State more than any 

other rule that the Federal Government is proposing right now, so 

my questions are going to be very specific. 

Mr. PERCIASEPE. Okay. 

Mrs. LUMMIS. But I want you to know how terrified people are. 

Now, I am from the West. I am from Wyoming where water is 

scarce, precious, carefully administered and the resource about 

which we worry the most and fret the most. And you just have people in the West completely terrified about this. I just want you to 

know that. Part of the terrifying effects of this is that the Supreme 

Court rejected the Clean Water Act jurisdiction over isolated ponds 

because they lacked a significant nexus to navigable waters, and 

we don’t understand why the panel of scientists is not focusing on 

what significant nexus means. Instead, this rule is focusing on connection and connectivity. The Courts have repeatedly said that a 

connection is not enough and yet the EPA is basing this rule on 

a report that evaluates connections. 

So I would argue that that is among the umbrella basis for our 

huge concerns. The Western Governors are concerned, the Western 

Attorneys General are concerned, the Western state engineers are 

concerned, the water users are concerned, the local water administrators are concerned. It is an enormous issue. 

Laying that groundwork, here are my specific questions. We 

don’t understand why the EPA allowed only an additional 20-day 

comment period on the interpretive rule on the ag exemptions. 

There are some exemptions, 56 practices that are exempt as I understand it, but there are 100 other practices that we believe 

should be added to this list. Here are my questions. Please provide 

a detailed analysis of how the National Conservation Resource 

Service conservation practice standard for irrigation canal or lateral, that is Code 320, aligns with the treatment of these facilities 

in the proposed rule for the hearing record. 
65 

Mr. PERCIASEPE. I can’t do that off the top of my head but I am 

happy to do it for the record. 

Mrs. LUMMIS. Fabulous. And the other questions that I have are 

going to be for the record as well. 

Mr. PERCIASEPE. Okay. 

Mrs. LUMMIS. Please provide us how the NRCS conservation 

practice standard for an irrigation field ditch. Now, this ditch, this 

is Code 388, aligns with the treatment of ditches in the proposed 

Waters of the United States Rule. 

Please discuss how the NRCS standards for a pumping plant, 

this is Code 533; a stream crossing, that is Code 578; and a structure for water control, this is Code 587, align with the regulatory 

consequences of the Waters of the United States Proposed Rule. We 

need detailed written analyses of these for the hearing record. 

We also need an analysis in the rulemaking docket so people 

have an adequate opportunity to consider and comment on these 

analyses. These are the kinds of details that have heretofore been 

left out, and when you couple the fact that this scientific committee 

that was assembled has I think 2 people out of 50 that are connected to tribes, States, and local water regulators provides no 

comfort for us. And those two that came from state agencies both 

came from the California EPA. There is almost no state agency 

that is more disparate from my State, our tribes, our counties, our 

water regulators’ frame of reference than the California EPA. The 

only other agency that is more disparate is the U.S. EPA. So in 

other words we really feel from the West that this scientific committee has no expertise in our water jurisdiction, concerns, quantity, quality, and as I said at the beginning of my remarks, there 

is just no rule that terrifies us more. 

Thank you, Mr. Chairman. I yield back. 

Mr. SCHWEIKERT. Thank you, Mrs. Lummis. And hopefully staff 

got that list and you will be able to respond—— 

Mr. PERCIASEPE. Well, it looks like we will be able to get it somehow if—I tried to write them all down. Thank you. 

Mr. SCHWEIKERT. All right. Thank you, Mrs. Lummis. 

And now it is finally my turn and I have two letters I wish to 

put into the record. Without objection, seeing we are the last two 

here—if there is an objection, I am going to be really worried—from 

my Irrigation & Electrical Districts Association of Arizona and National Stone, Sand, and Gravel Association. 

No objection, so ordered. 

[The information appears in Appendix II] 

Mr. SCHWEIKERT. It has been fascinating to listen to this because—and I should disclose about six weeks ago right down the 

hall we did one of those things we tried to do with big pieces of 

legislation where you invite in a handful of lawyers, and this is an 

interesting group. A couple of lawyers—I think one had actually 

even been staff over at the EPA so they weren’t necessarily the ideological set and we did that sort of game theory. Let’s sort of walk 

through the sections of this rule and see what it models, see what 

this means, how absurd could you take it, where would a court 

take it? 

And I think from those sorts of discussions that is where you are 

picking up the stress—— 
66 

Mr. PERCIASEPE. Yeah. 

Mr. SCHWEIKERT. —from many of us up here. It may not be what 

you intended but it is what the words say and particularly in a litigious world that we are in right now where if the words have any 

movement, someone is going to litigate on it. 

So could I beg of you—and I know this is sort of a lightning 

round—let’s do floodplains for a moment. In the discussion here 

floodplains kept being sort of adjacent to an active waterway. For 

those of us from the desert Southwest, if you were ever to look at 

Maricopa County, third most populous or fourth most populous 

county in the United States, but the top part of my county has 

huge, huge areas that are designated as floodplains even though it 

may be the every-other-year monsoon season. How does that fall 

into this? I mean there are areas up there were you have to get 

a 404 permit to do almost anything. 

Mr. PERCIASEPE. Well, I am going to—so we have asked that we 

get some comment on the concept of using a floodplain, which is 

obviously associated with a water as a mechanism—a science-based 

mechanism to determine if there are waters in that floodplain, not 

at the moment it is flooding but—— 

Mr. SCHWEIKERT. You know, we are probably not used to the 

word floodplain—— 

Mr. PERCIASEPE. Yeah. 

Mr. SCHWEIKERT. —for those of us in the desert Southwest where 

I may get 14 inches a year and it comes on a Tuesday. 

Mr. PERCIASEPE. Yeah. Right. And so that floodwater, you know, 

those lands that are flooded on that particular—you know, I have 

been in Arizona during the monsoon season and—along the Salt 

River or Rio Salado, the—you mentioned—the Chairman mentioned I worked at the Audubon society. I worked on that nature 

center, the Nina Mason Pulliam Nature Center down on think it 

is Center Street. 

Mr. SCHWEIKERT. Yeah. 

Mr. PERCIASEPE. So we are using that to say, look, if this area 

floods, then if there is a stream in that area or a wetland in that 

area, then the chances are it is probably—has some connection to 

that—— 

Mr. SCHWEIKERT. So—— 

Mr. PERCIASEPE. —to the main river. But it doesn’t mean that 

the whole floodplain is somehow—becomes like a dry—— 

Mr. SCHWEIKERT. You know, let’s grind through this sort of in a 

mechanical—— 

Mr. PERCIASEPE. Yeah. Okay. 

Mr. SCHWEIKERT. —and then let’s do sort of a case scenario. So 

I am elated you have some experience with the desert Southwest. 

So those floodplains, water does run through them and they run 

down and eventually hit another wash that hits another wash that 

eventually ends up in the Verde River and the Verde River eventually ends up in the Salt River and then your Rio Salado project. 

So in that case you would see a nexus. 

Mr. PERCIASEPE. On the—there would be a nexus on the riverbed, you know, in terms of jurisdiction, and if there was another 

river or wetland feature that met those other characteristics, had 

a bed, bank, and a high watermark or hydric soils and vegetation, 
67 

then it would be looked at as being adjacent to that water. But the 

entire floodplain—and this is—— 

Mr. SCHWEIKERT. No, no, no. That wasn’t my question. 

Mr. PERCIASEPE. Okay. Okay. 

Mr. SCHWEIKERT. My question was that wash—let’s back up a little because you have the experience. Salt River bed—— 

Mr. PERCIASEPE. Yeah. 

Mr. SCHWEIKERT. Navigable? Should it fall under the Waters of 

the United States? 

Mr. PERCIASEPE. No. It is probably not navigable except for a few 

times a year. 

Mr. SCHWEIKERT. But would it fall under your jurisdiction? 

Mr. PERCIASEPE. But it would fall under a tributary that is tributary to a traditional navigable—— 

Mr. SCHWEIKERT. So it would? 

Mr. PERCIASEPE. —and could—the quality of the Salt River could 

affect the quality of the navigable water. 

Mr. SCHWEIKERT. Okay. 

Mr. PERCIASEPE. And I think that is how the Supreme Court 

tried to use the concept of if it affects downstream the—— 

Mr. SCHWEIKERT. Okay. Well, in my remaining—and the beauty 

of playing Chairman is I am—— 

Mr. PERCIASEPE. Yes. Yeah. 

Mr. SCHWEIKERT. —giving myself more time. So let’s do a little 

game theory. I have an occasional creek behind my home, which 

runs at certain times of the year, and I go out and I take shovels 

and shovels and shovels of dirt and throw it in there. Did I violate 

the rule? And that creek runs down to a river. 

Mr. PERCIASEPE. And you are saying that that creek has water 

in it every year or is it just rain? Is it an erosional feature—— 

Mr. SCHWEIKERT. Let’s say it is running at that time and I am 

throwing dirt into it, pollutant as defined and so in that case I 

would have needed a 404 permit to be throwing that dirt in? 

Mr. PERCIASEPE. You know, it is just—really—I mean there are 

so many reasons why it might not be. I can’t really focus on—— 

Mr. SCHWEIKERT. And this actually came from our legal—— 

Mr. PERCIASEPE. Yeah. 

Mr. SCHWEIKERT. —workgroup last month. Okay. So how about 

if it is an occasional where this time I am throwing dirt into it and 

it is dry but I am changing sort of the structure of it. But when 

water does come down, it is going to pick up the additional sediment and run it down to the Verde River in my area. Still probably 

would fall under—— 

Mr. PERCIASEPE. Yeah. Recognizing I have a modest amount of 

familiarity—— 

Mr. SCHWEIKERT. Um-hum. 

Mr. PERCIASEPE. —with what that place probably looks like even 

if you didn’t put the dirt in there, I don’t know that it would be 

noticeable—— 

Mr. SCHWEIKERT. Okay. 

Mr. PERCIASEPE. —because you have got a dry situation where 

the sand and the—— 

Mr. SCHWEIKERT. Um-hum. 
68 

Mr. PERCIASEPE. —smaller grains and even the stones depending 

on how torrential the rain might be are going to move downstream. 

Mr. SCHWEIKERT. But you can see where that becomes a really 

interesting standard. So now the standard is noticeable. 

Mr. PERCIASEPE. Well, I am—— 

Mr. SCHWEIKERT. It is not—— 

Mr. PERCIASEPE. I am sorry. I am sorry. I am just speaking—— 

Mr. SCHWEIKERT. No, no, no—— 

Mr. PERCIASEPE. You are trying to engage me in a conversation—— 

Mr. SCHWEIKERT. No—yeah. No, no, I am not trying to—— 

Mr. PERCIASEPE. Trying to be a lawyer here. 

Mr. SCHWEIKERT. I am trying to get even my own head around 

it—— 

Mr. PERCIASEPE. Yeah. 

Mr. SCHWEIKERT. —because I have had groups of very smart lawyers and some of them not ideological at all—they are just good 

lawyers—who are way over here saying, oh, they don’t mean that 

and over here saying I am going to sue and I am going to litigate 

and I am going to win on this because—— 

Mr. PERCIASEPE. Right. 

Mr. SCHWEIKERT. —here is how it is worded. So that is where 

the fear comes because—— 

Mr. PERCIASEPE. Yeah. 

Mr. SCHWEIKERT. —for many of us who live out in the desert 

Southwest, we ride our horses through washes, we plant palo verde 

trees and then we fertilize them alongside those washes. Have I 

just created a pollutant because that pollutant runs down and 

eventually hits a dry Salt River bed. Well, the dry Salt River bed 

hasn’t run water down to the Colorado in, what, 30-some years. 

Maricopa County is one of the places on Earth where we recycle 

every drop of our water. We do some great stuff. 

Mr. PERCIASEPE. Yeah. I agree. 

Mr. SCHWEIKERT. Also, last two things and I know I am way over 

my time, I know there was some frustration shared from you on 

people you thought were pushing things, maybe exaggerating, 

conflating, but we even did it in the conversation here of folks talking about drinking water. Well, that is a different statute so we 

have to be careful on—for all of us conflating. 

Last bit on ditches, okay, let’s say I have a ditch; we will call it 

the Central Arizona Project, the world’s longest aqueduct, and it 

puts water into a large lake, Lake Pleasant, and then picks that 

water back out of that lake and continues to move it through my 

state. The fact it was parked in—because the lake is under the jurisdiction currently and in the future rule, right? So did the transfer from that ditch into a holding lake and then transferred back 

into a ditch all of a sudden turned the water movement there 

under this rule. 

Mr. PERCIASEPE. You know, I am not 100 percent familiar with 

that situation. I have some familiarity, but the Central Arizona 

Project would not be—— 

Mr. SCHWEIKERT. But—— 

Mr. PERCIASEPE. —jurisdictional in any way, shape, or form. 
69 

Mr. SCHWEIKERT. But the ditch itself—I know you have said a 

couple times a ditch is not, but this is a different mechanic. Remember, we put it into a regulated lake as a holding. 

Mr. PERCIASEPE. Well, you know, irrigation ditches are not—— 

Mr. SCHWEIKERT. But this is—but you can start to see these are 

where we are—— 

Mr. PERCIASEPE. Is this lake—I apologize for not having—— 

Mr. SCHWEIKERT. Lake Pleasant. 

Mr. PERCIASEPE. Is it used to recharge groundwater? 

Mr. SCHWEIKERT. No. No, no. That is—this is actually mostly for 

water—— 

Mr. PERCIASEPE. Supply? 

Mr. SCHWEIKERT. —supplies, irrigation supplies, municipal supplies—— 

Mr. PERCIASEPE. I—— 

Mr. SCHWEIKERT. —but it is also a large recreational lake. 

Mr. PERCIASEPE. Yeah, I would—I—— 

Mr. SCHWEIKERT. So a large—but you could start to see where 

we have some design issues because also in desert Southwest type 

of agriculture we use a lot of ditches where we will gather water, 

run it around, and then put it back. 

Mr. PERCIASEPE. The danger you have with the guy at the top— 

you know, in either top of the food chain, you know, trying answered these technical questions on particular matter is difficult, 

but our approach we do not want irrigation systems to be jurisdictional. We certainly don’t want ditches that if you took the water 

away they just go back to being what the land that it was. I mean, 

that—— 

Mr. SCHWEIKERT. There will be some other discussions and if we 

have time, we will send you a couple notes saying there may be a 

need to change some of that ditch language because, particularly 

for those of us in the desert Southwest, the way we use them, it 

is a constant transferring back and forth from different types of 

bodies and different types of uses and, so, you can see where some 

of the concerns are. 

And I think with that, because it is not like I haven’t gone double 

my allotted time, so I appreciate everyone’s patience. I need to 

thank you as our witness. 

To the Members of the Committee, if they have additional questions for you—and we will ask you to respond to those in writing. 

The record will remain open for two additional weeks, comments 

and written questions from any Members. 

The witness is excused. Thank you for—— 

Mr. PERCIASEPE. Thank you, Mr. Chairman. 

Mr. SCHWEIKERT. —joining us. Anything else? 

All right. And then we are adjourned. 

Mr. PERCIASEPE. Thank you. 

[Whereupon, at 12:15 p.m., the Committee was adjourned.] 

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Appendix I 

ANSWERS TO POST-HEARING QUESTIONS
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ANSWERS TO POST-HEARING QUESTIONS

Responses by The Honorable Robert W. Perciasepe 
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Appendix II 

ADDITIONAL MATERIAL FOR THE RECORD
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WRITTEN STATEMENT SUBMITTED BY RANKING MEMBER EDDIE BERNICE JOHNSON

Thank you, Chairman Smith for holding today’s hearing to examine the rule proposed by the Environmental Protection Agency and the Army Corps of Engineers 

to clarify the definition of the ‘‘waters of the United States’’ in the Clean Water Act. 

I’d also like to thank Mr. Perciasepe for his participation this morning. I’m looking 

forward to your testimony and our discussion today. There has been a significant 

amount of confusion about what waters will be subject to the requirements of the 

Clean Water Act in light of the proposed rule, and today’s hearing provides us with 

the opportunity to clear up any misconceptions. 

As my colleagues are aware, I am a strong supporter of EPA’s mission to protect 

public health and the environment. I am also a believer that a strong economy and 

a healthy environment go hand in hand. It is clear that clean water plays an important role, not just in the day to day lives of every American, but in nearly every 

sector of our economy. The availability and quality of water is critical to manufacturing, agriculture, recreation and tourism, energy production, and commercial fisheries. 

In 1972 Congress recognized the value of the Nation’s water supply to our economy and quality of life and enacted the Clean Water Act to protect this vital and 

finite resource. However, rulings by the Supreme Court in 2001 and 2006 have created ambiguity regarding what waters are subject to the Act’s jurisdiction. 

For nearly a decade, stakeholders ranging from the American Association of State 

Highway and Transportation Officials to the Environmental Defense Fund to the 

American Petroleum Institute have been calling on EPA and the Army Corps to provide clarity about what is and what is not a ‘‘water of the United States.’’ And while 

there may be differences in opinion about the proposed rule, I applaud the agencies 

for addressing this need and working to provide ‘‘greater clarity, certainty, and predictability’’ to the regulated community and state and local governments that share 

the task of implementing and enforcing the Clean Water Act. 

As we will likely hear today, streams, lakes, and wetlands offer a variety of ecological benefits and services. For example, wetlands can store excess water after a 

heavy rainfall, reducing the possibility of flooding; they can trap sediments and filter out pollutants, improving water quality; and they can serve as a breeding 

ground for fish and other aquatic life, increasing biological diversity. 

As a representative from the great state of Texas, I have seen first-hand the impact water shortages can have on public health and the economy. In 2011 Texas experienced one of the worst droughts on record with nearly 1,000 public water systems implementing restrictions on the use of water. In fact, 23 of those systems believed they would run completely out of water within 180 days. Additionally, about 

16 percent of the Texas’ power generation relies on cooling water from sources that 

are at historically low levels. Competition for water in the state is already high, but 

climate change is likely to further increase competition for this critical resource as 

shortages are expected to rise and the quality of our water resources is predicted 

to decline. 

We need a reliable supply of clean water in order for our economy to remain 

strong. The proposed rule we are discussing today will go a long way in protecting 

this critical resource, and this hearing can be a constructive mechanism for all of 

us to learn more about the proposed rule. 

Thank you, Mr. Chairman and I yield back the balance of my time. 
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LETTERS SUBMITTED BY CHAIRMAN LAMAR SMITH
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LETTERS SUBMITTED BY REPRESENTATIVE KEVIN CRAMER
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LETTERS SUBMITTED BY REPRESENTATIVE PAUL C. BROUN
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LETTER SUBMITTED BY REPRESENTATIVE RALPH M. HALL
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LETTER SUBMITTED BY REPRESENTATIVE RANDY HULTGREN
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LETTERS SUBMITTED BY REPRESENTATIVE LARRY BUCSHON
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LETTER SUBMITTED BY REPRESENTATIVE MO BROOKS
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LETTERS SUBMITTED BY REPRESENTATIVE DAVID SCHWEIKERT
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