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REGULATORY OVERREACH: IS EPA MEETING ITS 

SMALL BUSINESS OBLIGATIONS? 

HEARING 

BEFORE THE

COMMITTEE ON SMALL BUSINESS 

UNITED STATES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD 

JULY 30, 2014 

Small Business Committee Document Number 113–079 

Available via the GPO Website: www.fdsys.gov 

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Congress.#13
(II) 

HOUSE COMMITTEE ON SMALL BUSINESS 

SAM GRAVES, Missouri, Chairman 

STEVE CHABOT, Ohio 

STEVE KING, Iowa 

MIKE COFFMAN, Colorado 

BLAINE LUETKEMEYER, Missouri 

MICK MULVANEY, South Carolina 

SCOTT TIPTON, Colorado 

JAIME HERRERA BEUTLER, Washington 

RICHARD HANNA, New York 

TIM HUELSKAMP, Kansas 

DAVID SCHWEIKERT, Arizona 

KERRY BENTIVOLIO, Michigan 

CHRIS COLLINS, New York 

TOM RICE, South Carolina 

NYDIA VELA ́ ZQUEZ, New York, Ranking Member 

KURT SCHRADER, Oregon 

YVETTE CLARKE, New York 

JUDY CHU, California 

JANICE HAHN, California 

DONALD PAYNE, JR., New Jersey 

GRACE MENG, New York 

BRAD SCHNEIDER, Illinois 

RON BARBER, Arizona 

ANN McLANE KUSTER, New Hampshire 

PATRICK MURPHY, Florida 

LORI SALLEY, Staff Director 

PAUL SASS Deputy Staff Director 

BARRY PINELES, Chief Counsel 

MICHAEL DAY, Minority Staff Director 

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(III) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Hon. Sam Graves ..................................................................................................... 1 

Hon. Nydia Vela ́zquez ............................................................................................. 2 

WITNESS 

Hon. Bob Perciasepe, Deputy Administrator, Environmental Protection Agency, Washington, DC .............................................................................................. 3 

APPENDIX 

Prepared Statement: 

Hon. Bob Perciasepe, Deputy Administrator, Environmental Protection 

Agency, Washington, DC .............................................................................. 30 

Questions and Answers for the Record: 

Questions and Answers from Hon. Sam Graves to Hon. Bob Perciasepe .... 35 

Questions and Answers from Hon. Mick Mulvaney, Hon. Tom Rice, and 

Hon. Scott Tipton to Hon. Bob Perciasepe .................................................. 40 

Questions and Answers from Hon. Mick Mulvaney to Hon. Bob 

Perciasepe ...................................................................................................... 41 

Questions and Answers from Hon. Scott Tipton to Hon. Bob Perciasepe .... 43 

Additional Material for the Record: 

Chamber of Commerce ..................................................................................... 46 

Joint Field Hearing on EPA Water Grab ....................................................... 49 

National Association of Realtors ..................................................................... 100 

RISE - Responsible Industry for a Sound Enviroment .................................. 120 

WAC - Waters Advocacy Coalition .................................................................. 123 

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(1) 

REGULATORY OVERREACH: IS EPA MEETING 

ITS SMALL BUSINESS OBLIGATIONS? 

WEDNESDAY, JULY 30, 2014 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON SMALL BUSINESS, 

Washington, DC. 

The Committee met, pursuant to call, at 1:00 p.m., in Room 

2360, Rayburn House Office Building. Hon. Sam Graves [chairman 

of the Committee] presiding. 

Present: Representatives Graves, Chabot, Leutkemeyer, Tipton, 

Hanna, Huelskamp, Schweikert, Collins, Vela ́zquez, and Payne. 

Chairman GRAVES. Good afternoon, everyone. We will bring the 

hearing to order. I want to thank everyone for being here. 

The mission of the EPA is to protect human health and the environment. Lately, the EPA has ventured well beyond its mission. Its 

recent rulemakings are an unprecedented power grab that are infringing on the rights of both the individual and small business 

owners. The results on our economy are potentially devastating 

and the EPA needs to reevaluate its decisions. 

These rules have real and direct consequences for small businesses, and the American public deserves to have a complete picture of the costs and benefits of all these rules. Unfortunately, EPA 

seems focused on telling one side of the story and ignoring the 

other. 

What the EPA is not revealing is how its rules will affect small 

businesses. The EPA is required to tell that story by the Regulatory Flexibility Act or RFA. The RFA requires EPA to go through 

the common-sense process of assessing how its rules will affect 

small entities and whether there are less burdensome ways to meet 

their objectives. 

Instead of complying with the law and getting input from small 

businesses through formal panels and analyzing small business impacts, the EPA has ducked these rulemaking requirements. 

Unfortunately, small businesses won’t be able to duck the power 

plant regulations or ‘‘Waters of the United States’’ rule once they 

are finalized. They are being required to comply with the rules, pay 

the costs, and face the consequences. 

While all small businesses want clean air and clean water, they 

also want rules that are very clear and rational. Small businesses 

want to know what they will be required to do, what the costs are 

expected to be, and how their operations will be affected. And last 

but not least, small businesses want to be treated fairly in the rulemaking process. 

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I hope this hearing is going to be a wakeup call for the EPA. 

Avoiding its obligations under the RFA is just simply not acceptable. For the past year, the Committee has been working to get the 

EPA to testify on this topic, and I very much want to thank Deputy 

Administrator Perciasepe for joining us today and I look forward to 

discussing this issue. And I, again, want to thank you for being 

here. 

And I yield to Ranking Member Vela ́zquez for her opening statement. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. 

A clean environment and economic growth go hand in hand. Between 1970 and 2011, air pollution dropped 68 percent, private sector jobs increased by 88 percent, and GDP grew by more than 200 

percent. This is not a coincidence as studies continually show that 

environment stewardship is not only good for our families, but also 

for our businesses. 

Today, the EPA plays a vital role protecting public health and 

safety by implementing a vast array of environment laws, which in 

turn support our economy. Through its implementation of the 

Clean Air Act, we have seen significant improvements in our nation’s air quality. In a given year, enforcement of the Clean Air Act 

has saved 160,000 lives, prevented 1.7 million asthma attacks, and 

stopped 13,000 heart attacks. It is estimated that 13 million missed 

workdays are prevented thanks to the cleaner air we enjoy, boosting economic productivity. 

We have also seen similar benefits from the EPA’s enforcement 

of water regulations. Since the enactment of the Clean Water Act, 

billions of pounds of pollution have been kept out of our waterways, 

doubling the number of safe areas for swimming and fishing. As a 

result, Americans are healthier, our waterways are being remediated, and industries like tourism, fishing, and recreation, which are 

dominated by small businesses, are seeing greater opportunities. 

While it is fair to say that these outcomes are positive and that 

EPA is justifiable in pursuing such goals, the agency must always 

be mindful of how new rules and regulations impact our nation’s 

small firms. To this point, our committee has already examined 

several EPA regulations and the agency’s obligations under the 

Regulatory Flexibility Act. 

What these hearings have shown is that the small business impact can vary from rule to rule. When it comes to electricity generation, it is clear that the direct costs are borne mainly by large 

utilities. However, with regard to the discharge of certain chemicals into the water, small businesses and farms are likely to bear 

more of the actual costs associated with the regulations. Yet, EPA 

determined neither rule will have enough of an economic impact on 

small firms to trigger RFA analysis. 

During today’s hearing I hope to hear how the EPA is implementing its obligation under the Regulatory Flexibility Act, as well 

as conducting outreach to small firms. Perhaps most importantly, 

I want to know how it determines not to meet the full requirements of the act. There is no doubt that small businesses want to 

protect our environment and should in many regards be an ally of 

the EPA. Not only are they leading the way when it comes to environmental technologies, but they can also help the EPA craft reguSBREP-219 with DISTILLER

3 

lations that promote clean air and water without overburdening 

the industry. 

It is my hope that today’s hearing will help bridge the gap between the EPA and the small business community, resulting in a 

cleaner environment and a stronger economy. 

With that, I thank EPA Deputy Administrator, Bob Perciasepe, 

for his participation today, and I yield back the balance of my time. 

Thank you. 

Chairman GRAVES. Thank you. 

In 2009, the Honorable Bob Perciasepe was appointed by President Obama and confirmed by the Senate to serve as the Environmental Protection Agency’s deputy administrator, and for nearly 

four decades he has worked on environmental issues from both 

within and outside the government. Mr. Perciasepe previously 

served as the head of EPA’s water office and later its air office, and 

prior to becoming deputy administrator, he was the chief operating 

officer for the National Audubon Society. Mr. Perciasepe has also 

served as Secretary of Environment for the State of Maryland. 

Director Perciasepe, thank you for taking the time to be with us 

today, and your written statement is going to be entered into the 

record. So please give us your oral statement. 

STATEMENT OF HON. BOB PERCIASEPE, DEPUTY 

ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY 

Mr. PERCIASEPE. Chairman Graves, thank you. Ranking Member Vela ́zquez, thank you for those comments. And thank you for 

the opportunity to testify and answer questions of the members. 

I am here today to talk about EPA’s actions on the president’s 

Climate Action Plan, and also under the EPA and U.S. Army Corps 

of Engineers’ recently proposed rule that would clarify jurisdictional scope of the Clean Water Act. 

Climate change is one of the greatest challenges of our time, 

threatening human health, welfare, and our economic well-being, 

and if left unchecked, will have devastating impacts on the United 

States and businesses. 

That is why President Obama laid out a Climate Action Plan in 

June 2013, in which he directed EPA and other federal agencies to 

take steps to mitigate the current and future damage caused by 

carbon dioxide emissions and to prepare for the anticipated climate 

changes that have already begun to be set in motion. 

EPA plays a critical role in implementing the plan’s main—one 

of its first pillars, which is cutting carbon pollution. 

The president asked EPA to work with states, utilities, and other 

key stakeholders to develop the plans to reduce carbon pollution 

from future and existing power plants, the largest source of carbon 

dioxide emissions in the United States. 

In June of this year, the EPA proposed a Clean Power Plan for 

existing plants. The plan is built on advice and information from 

states, cities, businesses, utilities, and thousands of people about 

the actions they are already taking to reduce carbon dioxide emissions, and it aims to cut energy waste and leverage cleaner energy 

sources by using a national framework to set achievable state-specific goals, and it empowers the states to chart their own customized path to meet those goals. 

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The EPA’s stakeholder outreach and public engagement in preparation for this rulemaking was unprecedented. Starting last summer, we have virtually met with thousands of people and had hundreds of meetings with a broad range of stakeholders, including 

small entity interests such as municipal and rural electric cooperatives. 

Now, we are in the second phase after the proposal of our public 

engagement, and it has already begun. We have already had dozens of calls and meetings with states and other stakeholders, and 

more formal public process includes a comment period that runs 

through October 16th of this year. Public hearings are being held 

this week in Atlanta, Denver, Pittsburgh, and in Washington, D.C. 

In addition to the president’s action plan, I also want to take a 

minute to talk about the recently proposed jurisdictional rule under 

the Clean Water Act. In recent years, several Supreme Court decisions have raised complex questions regarding the geographic scope 

of the Clean Water Act. And for nearly a decade, members of Congress, states, local officials, industry, agriculture, environmental 

groups, and the public have asked our agencies—the Corps of Engineers and EPA—to make the existing rules on the book more consistent with the Supreme Court’s rulings. 

For the past several years, EPA and the Corps have received 

input from the agricultural community while developing the proposed rule. Using this input, the EPA and the Corps has worked 

with USDA to ensure the concerns raised by farmers and agricultural industry were addressed in the proposed rule. The proposed 

rule does not change in any way the existing Clean Water exemptions associated with agriculture, ranching, and forestry activities. 

EPA also sought wide and early input from representatives of 

small entities, while formulating a proposed definition of this term 

that reflects the intent of Congress consistent with the mandate of 

the Supreme Court’s decisions, and that was reflected in our proposed rule. 

EPA has prepared a report summarizing the small entity outreach to date, the results of this outreach, and how these results 

have informed the development of the proposed rule. Since publishing the rule, the agencies have met many times with small 

businesses and other entities. Most recently, the agencies participated in an SBA-sponsored roundtable on July 21st. We look forward to continuing these efforts into the future, and before we finalize the rule, and during the remainder of the public comment 

period as we write the final rule. 

Thank you again, and I will be happy to answer your questions, 

Mr. Chairman. 

Chairman GRAVES. Thank you, Administrator. I appreciate it. 

Administrator McCarthy recently came—was in Missouri, my 

home state, and she was talking about obviously ‘‘Waters of the 

United States,’’ and she made the statement that the concerns of 

farmers and others—I want to make sure I say it right—that the 

proposed rules and the concerns about the proposed rules were silly 

and ludicrous, which I submit that the concerns of farmers, and 

small businesses, and everybody out there are certainly not silly or 

ludicrous. And I think a lot of these concerns may have been identified if the EPA had complied with the RFA. And that is my basic 

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question here today, is why the EPA did not convene small business advocacy review panels. That is what it requires. They are formal panels, and you have said your statement that you have gotten 

input from the Ag community. I would like to know what that is. 

And when you say small entity outreach, what does that mean in 

terms of—and why did you all not do what the RFA does require? 

Because informal outreach is not small business review panels. 

Mr. PERCIASEPE. Under the RFA, we are required to—I am 

sorry. I will get the hang of that in a second here, Mr. Chairman. 

Under the RFA, whatever the regulatory agency is, not just EPA, 

is required to look at the small entities subjected to the rule. And 

this is the interesting thing about the Waters of the United States 

rule. It is a definitional rule. It defines where the other parts of 

the Clean Water Act will actually apply. So it does not directly impose any requirement on anybody if they are not discharging pollution. So it does not directly impact large businesses or small businesses in any direct way. 

So the jurisdictional determinations of whether the Clean Water 

Act would apply or not, and whether a state agency who is implementing the Clean Water Act under the arrangements under the 

law, would have to require an entity, small or large, to get any 

kind of permit would only be related to whether or not they were 

going to discharge pollution. And this regulation does not regulate 

discharges of pollution, just where the existing permit programs 

would have to work. 

But also, more importantly, we are reducing the scope of where 

the Clean Water Act applies from the current on-the-books regulations that the Supreme Court was acting on in the last decade, and 

so we are not expanding where permits would be required. 

And so when we looked at all of that together, we did not see 

the applicability under the Regulatory Flexibility Act. However, we 

did see a desire, as we almost always have, of being able to engage 

all stakeholders, including small entities, and we have had a process underway to do that. And we will continue. We are planning 

more roundtables, as well. 

Chairman GRAVES. When you say no discharge, discharge can 

include dirt and sand runoff. Water, rainwater. 

Mr. PERCIASEPE. Rainwater is not a pollutant. 

Chairman GRAVES. Well, when it interacts with dirt and sand 

and you are carrying dirt and sand, that is considered a pollutant 

by the EPA. 

Mr. PERCIASEPE. It would have to be—let me just be clear. The 

jurisdiction of the Clean Water Act is where the existing laws and 

regulations would apply, not in any new requirement. So if you 

have to get a permit now, you would have to get a permit under 

this. But if you do not have to get a permit now, most likely you 

will not need a permit under this. If you plow, plant, and harvest, 

walk cows across a field, all these other things that you do in normal conduct of agriculture, if you do that now, you will be able to 

do that under this rule without any additional requirements from 

EPA or the Corps of Engineers. 

Chairman GRAVES. We go back to my original question. Before 

we do, you did say that you are reducing the scope in terms of the 

Clean Water Act, did you not? 

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Mr. PERCIASEPE. Reducing. 

Chairman GRAVES. In your economic analysis, the EPA’s economic analysis, you say there is a 3 percent increase in jurisdiction. 

Mr. PERCIASEPE. So the existing regulations were done in the 

1970s and modified in the 1980s, and they have a very broad definition of what waters of the United States are. And essentially, we 

are asking field biologists to go out and determine whether any 

place on the landscape where water may be running has some impact downstream or on interstate commerce. That is what the current—the Supreme Court said we cannot use interstate commerce 

as a way to do this. It has to be based on some kind of scientific 

basis. I think they use the term of art ‘‘of significant nexus.’’ 

Chairman GRAVES. Significant nexus. 

Mr. PERCIASEPE. So when we went back and looked at 20,000 

different determinations that were done in the last five years, and 

we applied it as strictly as we could, we saw somewhere where the 

applicability would go away, and we saw some where they had 

made the wrong call on the ground, even with the old regulations. 

So we were being conservative and said this looks like it could increase the amount of positive determinations for jurisdiction by 3 

percent. But the existing regulation is much more expansive than 

that and has not been applied completely uniformly around the 

country. So this will actually constrict that. 

Chairman GRAVES. Well, why did the EPA not do small business, you know, the formal small business advisory review or advocacy review? 

Mr. PERCIASEPE. Well, we did not do it because—and it is not 

that we did not want to talk to small businesses, but we did not 

have the formal panel because the panel is for the direct impact 

on a significant number of small entities—a significant impact on 

a substantial number of small entities. The direct impact is not 

here from this rule. The impact, if any—and we think there will 

be not much, if any—is from the existing regulations that would 

apply. 

Chairman GRAVES. So what you are saying is that you determined, or the EPA determined that there was not going to be an 

impact so you did not have to comply with the RFA, which is the 

process of determining if there is any impact? 

Mr. PERCIASEPE. Well, we went through that analysis. 

Chairman GRAVES. You are supposed to get input from small 

businesses to help make that determination. 

Mr. PERCIASEPE. Yes. I believe we are required to lay out our 

rationale for what I just said in more detail in the proposed rule. 

Chairman GRAVES. Well, I think this is, you know, is far-reaching. In fact, the term navigable waters is used some 80 times in 

the Clean Water Act, and when you come back and you do something as so far-reaching and we use new terms like ‘‘significant 

nexus’’ or in one of the expansions of this, too, is now a jurisdictional rate, a water that is adjacent to a jurisdictional water, which 

I do not even know what that means in terms of how expansive 

that could be. That could include anything. And it comes back to, 

as well, when you are making that determination on discharge or 

what that significant nexus is, that is an extraordinarily subjective 

determination. Obviously, going to be made by the EPA. I think 

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with the impact that is out there with this, you know, it really 

bothers me that you all determined that this is not going to have 

an impact because we believe it does, you know, in a big way. And 

to say that we do not have to comply with the RFA because we do 

not think there is an impact I think is wrong. 

I have called on you all to withdraw this rule. I am asking again. 

I think the EPA needs to withdraw this rule and go through the 

process the way it should be gone through and follow the law. And 

I am very disturbed by that. And I am very disturbed by some of 

the things that have been brought out just now. I was not expecting some of your answers. 

With that, I will turn to—I will have some other questions later 

but I will turn to Ranking Member Vela ́zquez. 

Ms. VELA ́ ZQUEZ. Thank you, Mr. Chairman. 

Deputy Administrator, the Clean Power Plan provides states 

with some flexibility to meet emissions reduction goals as they see 

fit. What happens if states fail to submit their plan by the deadline 

or EPA concludes a plan is not satisfactory? 

Mr. PERCIASEPE. It is our full hope and aspiration that that 

will not happen. That is why we are spending a lot of time with 

every state. We have tailored this rule so that it is tailored for 

every state, and we are meeting with every state to try to work 

through how they can make their plan successful. So, you know, 

the law has provisions in it that when states fail to do plans under 

the Clean Air Act, the EPA has the authority to propose a plan. 

We do not want to do that, and that would not be our objective. 

Ms. VELA ́ ZQUEZ. Okay. In your testimony, you highlighted that 

many industries, including agriculture and forestry will continue to 

be exempt from most permitting. Do you expect the new rule will 

necessitate additional industry exemptions? 

Mr. PERCIASEPE. You are talking about the water rule? 

Ms. VELA ́ ZQUEZ. Yes. 

Mr. PERCIASEPE. Yes. Well, under the Clean Water Act, agricultural activities are exempt from the rule—from the jurisdiction 

of the Clean Water Act, so that even if a water is jurisdictional 

under the proposal, if you are doing agricultural activities, you are 

exempt. You do not need to comply with any permitting processes, 

and we are not changing any of that. 

One of the things we have tried to do is clarify issues that farmers have brought up to us concerning ditches, where they may do 

some ditching to drain some upland areas when it rains, or even 

industry may do some on their industrial lot. Or some ditches at 

the side of highways. For the first time, we have never made it 

clear that those are not jurisdictional. Those would not be under 

the jurisdiction of the Clean Water Act. 

Ms. VELA ́ ZQUEZ. Okay, Deputy Administrator, I guess you understand by now that there is frustration in this Committee regarding the fact that we have the Regulatory Act that would allow for 

agencies to compel or create a panel review process so that it will 

give a voice to small businesses. And I think that if you do that, 

the agency wins and small businesses also win because you will 

issue better regulations when you have input from small businesses. And small businesses will be more satisfied because they 

feel that you have been able to listen to them. I do not know why 

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the reluctance. I just do not understand how you conclude or come 

to the conclusion that there is no direct impact on small entities 

because you have not provided us the process upon which you arrived to that conclusion. 

Mr. PERCIASEPE. Well, certainly, I want to be able to provide 

that to the Committee, and we will endeavor to do that. But whenever we do a rulemaking and we make a decision in our proposal 

that the direct impact—there may be indirect impacts, but the direct impact is not from the EPA rulemaking, then the law prescribes that that does not require a panel to be set up. But I want 

to be clear. That does not mean we should not reach out to small 

businesses. 

Ms. VELA ́ ZQUEZ. And I understand you did. 

Mr. PERCIASEPE. And work with them. 

Ms. VELA ́ ZQUEZ. I understand you did. 

Mr. PERCIASEPE. And we did. 

Ms. VELA ́ ZQUEZ. Right? But my understanding is that the outreach took place three years ago and the language now is different. 

Mr. PERCIASEPE. On the water? 

Ms. VELA ́ ZQUEZ. Yes. 

Mr. PERCIASEPE. Yes. We had a whole bunch of sessions a couple of years ago when we were working on guidance. People told 

us not to do a guidance, do regulation. We have proposed a regulation, which was built on some of the work we did back at that 

point. But since that time we have been working with SBA to do 

roundtable discussions. And as I mentioned, we had one on July 

21st and we are planning to have more before we would finalize 

the rule. Roundtable discussions with small businesses. 

Ms. VELA ́ ZQUEZ. So will you please share with us what you 

learned from that SBA roundtable? 

Mr. PERCIASEPE. Well, on the water side, believe it or not, we 

are learning that small businesses really want clean water, and it 

is really becoming clear. In fact, there was a recent poll done by 

the American Sustainable Business Council that found that 80 percent of small business owners want protection similar to what we 

are talking about; that 71 percent said clean water is necessary for 

their businesses. 

But we are also finding that they want to be clear when they are 

in, when they are out of that jurisdiction. And so one of our objectives is to take the existing regulations, which are—and see, one 

of the issues we have is people have not looked at those old regulations back in the 1970s and 1980s for a long time, and so when we 

put out a new one that is trying to replace it, they are only looking 

at the new one, and the old one is even vague. It is very vague. 

You know, downstream, interstate commerce, it is not a scientific 

principle, so we are trying to pull it back into a more defined place 

to provide that increased certainty, and that would be our objective, and we are hoping to get more comment on that. 

Ms. VELA ́ ZQUEZ. Thank you. 

Chairman GRAVES. To clarify real quick, because you keep 

bringing up the exemption, the Ag exemption, but that is only section 404, dredging. There is no exemption for Ag under section 402. 

Mr. PERCIASEPE. If they are discharging pollution, like from a 

point source of solution. 

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Chairman GRAVES. Okay. That can include, again, rainwater. 

Mr. PERCIASEPE. If it is runoff rain, it is nonpoint source pollution and it would not be covered under section 402. It would actually have to be in a pipe and be something that they are discharging, and Congress in 1987 asked that large animal feeding operations that discharge into a point source would be covered under 

402. That is in the 1987 Clean Water Act amendments. 

Chairman GRAVES. Mr. Luetkemeyer? 

Mr. LUETKEMEYER. Thank you, Mr. Chairman. 

Administrator Perciasepe here, I want to thank you first. I know 

that one of the things I am working on is the proposed rule that 

is out there with regards to wood burning heaters. I have offered 

a bill to stop the nonsense of what you are trying to do, and I understand that there is some discussions going on between you and 

industry folks which I am very thankful for, and I hope that proceeds. I understand the need for conformity across the spectrum of 

this, but to go down the direction that we were going down there 

is pretty problematic for me. So I thank you for the willingness to 

work with industry. 

With regards to the other issues before us today, it is stunning 

to me when you make your statements that you did not see the effect on small business from trying to define a word in the law. To 

redefine or clarify is going to have dramatic impact. When you say, 

if you just define the word ‘‘customer,’’ if you redefine that suddenly you have from a very small group of people to a very large 

group of people. To take the word ‘‘navigable’’ out of this is unbelievable to me. And to not then go through the process of checking 

out the—doing the due diligence and the small business report and 

analysis before this is either extremely naı ̈ve and incompetent or 

it is arrogance in its highest to be able to flaunt your authority by 

ignoring the laws, the rules, the process, the procedure. This is unacceptable. Absolutely unacceptable, especially whenever you look 

at the fact that within this law there is also the word 

‘‘hydrologically connected,’’ which means that all the waters, 

whether they are above ground, below ground, wherever, they are 

hydrologically connected, and the rain situation, it connects everything. This is extremely important. Extremely important. I cannot 

stress it enough, especially for rural parts of our country. I offer 

you an opportunity to discuss it. 

Mr. PERCIASEPE. Well, thank you for that question. You know, 

you are getting at the crux of the issue under the Clean Water Act, 

and we have to look at the body of everything that has been going 

on, not just old rulemakings of the Corps of Engineers and EPA, 

but also the Supreme Court rulings and what they have been telling us to do. And they have consistently been clear that it is not 

just navigable in the traditional sense. Particularly when you are 

dealing with clean water, the stuff that flows into the navigable, 

if it is polluted, it will pollute the navigable. And so everybody from 

Justice Scalia to Justice Kennedy have made it clear that it is more 

than just the navigable. It could be seasonal. I think that is a quote 

from Justice Scalia. Justice Kennedy uses the words ‘‘significant 

nexus.’’ 

And to go back to your question, and I think this, Mr. Chairman, 

may get at some of your questions, yours as well, significant nexus 

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is a new thing that the Supreme Court gave us. So we are trying 

to find out the purposes of the executive branch putting out a proposed regulation, and I have dicta here Chief Justice Roberts telling us to do these regulations. 

Just one more second. I promise. 

So nexus is definitely hydrology, as you just pointed out. And 

what is the connection? Well, you could make the argument as the 

chairman made that rain falling is connected somehow. And so one 

of our jobs in this rulemaking, and one of the things that we are 

most interested in trying to get more input on, is how do we define 

significant? Everything might be connected but it is not all significant. So back in the old regulation it said if it had any impact, 

probable or any impact on downstream interstate commerce, what 

we are trying to use is the science of hydrology and say it has to 

have certain characteristics that are identifiable by a hydrologist 

that there is enough flow in that water course that it is frequent 

enough, and enough that it creates these characteristics on the 

landscape. Otherwise, it is not significant. So we have tried to do 

that in this rule. 

Mr. LUETKEMEYER. You just made my point though, sir, of 

why did you not have—why did you not go through the rulemaking 

process that you are required to? Because you just admitted it is 

a tremendously impactful situation you are discussing here. And 

you do not think it is not going to impact small businesses when 

you just said it is huge. You have got the Supreme Court involved 

in trying to define things and sort of direct you in some of your activities. And it is not worthy of going through the process that you 

are required to do, to go through and figure out the impact on 

small business? That is what the chair was talking about and what 

this hearing is all about today. 

Mr. PERCIASEPE. And we are working with small businesses 

and with the Small Business Administration. 

Mr. LUETKEMEYER. Yeah, but you just talked about how important it was and how big a problem it is, and yet now we still 

did not go back and do what you were supposed to do, which is determine the impacts based on the defects of it. 

I see my time is over. Stunning. Absolutely stunning. 

Chairman GRAVES. Mr. Tipton? 

Mr. TIPTON. Thank you, Mr. Chairman. 

I would like to be able to submit for the record a letter from the 

Waters Advocacy Coalition. It is signed by 39 different organizations, among those the American Farm Bureau, the American Gas 

Association, Foundation for Environmental and Economic Progress, 

National Association of Home Builders, National Pork Producers 

Council, many others. The basic content of the letter is objecting 

to the insufficient analysis offered by the EPA on the impacts that 

this rule will have. 

Chairman GRAVES. Without objection, submitted. 

Mr. TIPTON. Thank you. 

Mr. Perciasepe, I am sorry. 

Mr. PERCIASEPE. Bob. 

Mr. TIPTON. Okay, Bob. As the letter that I am just referencing 

from the Waters Advocacy Coalition is noting, the agency certified 

the Waters of the United States rule as one that will not have sigSBREP-219 with DISTILLER

11 

nificant economic impact on a substantial number of small entities, 

yet the agency did not provide any factual basis for that certification as required under the RFAs. Did the EPA simply fail to do 

this because a factual basis did not actually exist? 

Mr. PERCIASEPE. We provided an analysis to make the determination that the rule itself, looking at direct impacts, which is 

what we are required to do under the RFA, would not have a significant impact on a substantial number of small entities. 

Mr. TIPTON. What do you qualify is a substantial number? 

Mr. PERCIASEPE. Well, it is more the direct impact than the 

number. 

Mr. TIPTON. So we do not even know what the number is when 

we are talking about who is going to be impacted? 

Mr. PERCIASEPE. Well, we are not expanding the jurisdiction 

of the Clean Water Act. So any small entity that is currently covered by the Clean Water Act will continue to be covered by the 

Clean Water Act. We are not making more of them covered. 

Mr. TIPTON. Actually, you are saying not making more covered, 

but in your testimony you stated that people want to be clear 

whether they are in or out of jurisdiction, but under the determinations you are making you clearly can expand jurisdiction. 

Mr. PERCIASEPE. But that is not what we are proposing. We 

are proposing to not add any new waters to what is covered in jurisdictional. We are trying to exclude certain things. 

Mr. TIPTON. Is there connectivity between all waters? 

Mr. PERCIASEPE. There is, but they are not all significant. 

Mr. TIPTON. So does that, in fact, give you complete control? 

Mr. PERCIASEPE. They are not all significant and we make it 

clear in the rule that they are not all significant. 

Mr. TIPTON. What is significant? 

Mr. PERCIASEPE. We have defined some hydrologic characteristics that would make a water significant. 

Mr. TIPTON. What are they? 

Mr. PERCIASEPE. In the science of hydrology, if you look at a 

flowing area, whether it is flowing all the time—— 

Mr. TIPTON. Flowing year round? 

Mr. PERCIASEPE. I said whether it is flowing intermittently—— 

Mr. TIPTON. What is intermittently? 

Mr. PERCIASEPE. Not all year round. 

Mr. TIPTON. Not all year round. So it could be 10 minutes? 

Mr. PERCIASEPE. Well, let me—it could be enough that water 

flows there frequently enough—— 

Mr. TIPTON. What is frequently? 

Mr. PERCIASEPE. All right. You are not going to let me answer? 

Mr. TIPTON. No, I am just trying to get down to the actual definition because the arbitrary nature of this rule—— 

Mr. PERCIASEPE. It is not arbitrary, sir. And if you let me answer I can give you some clarity. 

Mr. TIPTON. Go ahead. 

Mr. PERCIASEPE. In the science of hydrology, you can look at 

a flowing—a depressed area where water would flow, whether it 

flows full-time or part-time—let us use those plain English words— 

it will exhibit characteristics on the ground. There will be a bed. 

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There will be banks. There will be an ordinary high water mark. 

These are things identifiable to hydrologists. And if you do not 

have those characteristics, then there is not enough frequency of 

flow or volume of flow that would make it jurisdictional under the 

Clean Water Act. That is what we propose. That is limiting to anything that might have an impact downstream to interstate commerce. 

Mr. TIPTON. What you have just described to me—I live in the 

southwestern United States, in Colorado—we get one rainstorm, 

and with the lay of our land, you could have a high water marked 

caused by a 10-minute flow that then disappears. So under what 

you are describing to me, a 10-minute flow that happens once a 

year then becomes—— 

Mr. PERCIASEPE. An ordinary high water mark is not something from being wet 10 minutes ago. It is something that can be 

seen on the rock in terms of debris or discoloration of the rock. 

Mr. TIPTON. Or a cut in the bank of dirt? 

Mr. PERCIASEPE. Erosional features are not covered. Erosional 

features. We excluded those. 

Mr. TIPTON. I would like to be able to move on just a little bit 

here and move in a little different direction. 

If you put out a rule under EPA, do you expect it to be followed? 

Mr. PERCIASEPE. Well, yes. 

Mr. TIPTON. You do? Should you comply with the RFA and with 

NEPA? 

Mr. PERCIASEPE. Yes, we do. 

Mr. TIPTON. You do? So is it appropriate right now under section 104 of the existing Clean Water Act that both retroactively 

and preemptively you are shutting down projects before determinations have been made under NEPA and the RFA? 

Mr. PERCIASEPE. I cannot answer that question because I am 

not sure what you are—— 

Mr. TIPTON. Are you preemptively shutting down projects right 

now based off of the proposed rules, saying that you cannot proceed? 

Mr. PERCIASEPE. We have not done that. 

Mr. TIPTON. What about—I am sorry? 

Ms. VELA ́ ZQUEZ. They have not issued the rule. 

Mr. TIPTON. But we have got a proposed rule. 

Mr. PERCIASEPE. Right. But we have existing regulations that 

are more expansive than the proposed rule. 

Mr. TIPTON. Okay. You know, up in Alaska, I just read—is it 

the Prebble Mine? Is that right? Pebble Mine? 

Mr. PERCIASEPE. Bristol Bay. 

Mr. TIPTON. Crystal Bay. Have you shut that down before the 

analysis has been done? 

Mr. PERCIASEPE. Our regional administrator made a finding 

that is out for public comment. 

Mr. TIPTON. Does that comply with NEPA? 

Mr. PERCIASEPE. There has been no action taken on that. 

Mr. TIPTON. No action. So it is not allowed to move forward 

until the action takes place? 

SBREP-219 with DISTILLER

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Mr. PERCIASEPE. They can do whatever they want while that 

action is under consideration. And that action is to look at an area 

of water that we would not want to see discharge into. 

Mr. TIPTON. Okay. Thank you, sir. I do not know if we are 

going to have a second round. I am way over time, Mr. Chairman. 

Chairman GRAVES. We can. 

Mr. Collins? 

Mr. COLLINS. Thank you, Mr. Chairman. 

Mr. Perciasepe, I have got to give you credit. I think you knew 

you were coming into the lion’s den today and here you are. So I 

do give you a lot of credit. It is hard to defend the indefensible. And 

that is what your agency has sent you here to do. 

And for full disclosure, Mr. Perciasepe and I participated in a 

hearing a week or so ago on this very same issue on the Science 

Committee, and I will admit I concluded that hearing by saying to 

Bob that the public does not trust EPA. Farmers do not trust the 

EPA not to overreach. Congress does not trust the EPA. And at 

that point in time I pointed out the rule should be withdrawn, 

plain and simple and the EPA should start over. 

What we had in our Committee hearing in Science was we kept 

hearing words like confusion, uncertainty, misunderstanding, clarification throughout that hearing, and this was democrats and republicans alike. And I would like to also point out we all know 

about gridlock in Washington. There is only one agency that unites 

democrats and republicans, and that is distrust of the EPA. Your 

agency has united us where it is very hard to do so. 

Ms. VELA ́ ZQUEZ. Please do not talk. Do not represent me. 

Okay? 

Mr. COLLINS. Okay. Well, here is what I can say factually to 

our ranking member. A majority of Congress, a majority of Congress, 240-plus members, republicans and democrats signed the letter that I authored to the EPA saying we do not trust you; withdraw the rule. That was a majority of the members of Congress. 

And your agency has continued to disrespect Congress, to go down 

your own road, and again, continue in this rulemaking when a majority of Congress—democrats and republicans—and on the Science 

Committee, the harshest questioning came from the democrat side 

about this particular rule. And I just came from a hearing in 

Science on the Clean Air Act and the war on coal. And a former 

Obama administrative official from the Department of Energy 

summed up the EPA this way, to paraphrase, the arrogance of the 

EPA is beyond pale. The Department of Energy was not legitimately asked to participate in the sum of this rulemaking. And in 

fact, he called it a political agenda by the administration and the 

EPA. This is a former Obama administrative official less than two 

hours ago. 

So my question is very simple. Given the facts, the majority of 

Congress has asked you to withdraw this rule, why will the EPA 

not withdraw the rule, start over? There is no rush. You are not 

under a deadline. There is no judicial deadline. What is the harm 

in listening to Congress and withdrawing this rule, clarifying all 

the misunderstandings and confusion and everything else, and 

come out with a clean rule? Why will the EPA not do that? Or will 

you do that? 

SBREP-219 with DISTILLER

14 

Let me start with will you withdraw the rule? Yes or no? 

Mr. PERCIASEPE. The agency—— 

Mr. COLLINS. Yes or no? 

Mr. PERCIASEPE. No. 

Mr. COLLINS. Okay. Why not, given that Congress has asked 

you to do so? 

Mr. PERCIASEPE. You know, you all have put the agency in a 

very difficult situation. We are trying to improve the situation out 

there given the Supreme Court constantly—— 

Mr. COLLINS. But let me go back to why will you not withdraw 

the rule and start over? What harm is there in withdrawing the 

rule and starting over when a majority of Congress is on the record 

asking you to do so, republicans and democrats? What is the harm 

in doing that and do the RFA? What is the harm? Is there any 

harm? Is there something we do not see? 

Mr. PERCIASEPE. We continue with the uncertainty that everybody—— 

Mr. COLLINS. What is the harm in withdrawing the rule? 

Mr. PERCIASEPE. The harm would be in maintaining the uncertainty that currently exists, and we are not going to—we are going 

to continue to try to solve that problem. This is just a proposal. 

Mr. COLLINS. So, again, let us just be clear. You do not care 

that a majority of Congress—— 

Mr. PERCIASEPE. I do care. 

Mr. COLLINS.—who sets the laws—— 

Mr. PERCIASEPE. I do care. 

Mr. COLLINS.—has asked you to withdraw the rule? 

Mr. PERCIASEPE. I do care very much. 

Mr. COLLINS. Then why do you not withdraw it? 

Mr. PERCIASEPE. Because I need to fix the rule. 

Mr. COLLINS. No, you need to withdraw the rule. Congress has 

asked you pointedly, withdraw the rule. You have just said no. 

There is no legitimate reason. There is no timing. There is nothing 

but the arrogance of the EPA. 

Mr. Chairman, I yield back. 

Mr. PERCIASEPE. You know—— 

Chairman GRAVES. Go ahead. 

Mr. PERCIASEPE. I mean, I have a Supreme Court Chief Justice—— 

Ms. VELA ́ ZQUEZ. That was my question. 

Mr. PERCIASEPE. Who is saying why do the agencies not do 

this? 

Ms. VELA ́ ZQUEZ. Yes. 

Mr. PERCIASEPE. And so, you know, there are three branches 

of government. I have got one branch who wrote me when I was 

the acting administrator saying please do a rulemaking. Now I 

have that branch saying maybe we should withdraw it. I have another branch of the government—you know, I am going right back 

to the Constitution here. I have another branch of the federal government saying when are the agencies going to get their act together and do a rulemaking? So, I would propose that it would be 

in everybody’s interest for us to take the comment, get a—— 

Chairman GRAVES. I just thought it would be in everybody’s interest for us to take the comment—— 

SBREP-219 with DISTILLER

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Ms. VELA ́ ZQUEZ. Would the gentleman yield? 

It is kind of cynical. And look, I am a member of this committee 

for 22 years. I have been fighting the administration, whether republican or democrat, when I feel that things are not done right 

on behalf of small businesses. But I have to say that when it comes 

to repealing Obama Care, the Supreme Court is the law of the 

land. When it comes to the issue of water, the Supreme Court, is 

telling them that they have to address the issue. There’s just no 

winning in this house. 

Chairman GRAVES. Just to clarify, was there a judicial deadline? I just ask to clarify. Was there a judicial deadline? 

Mr. PERCIASEPE. No, sir. 

Chairman GRAVES. Mr. Schweikert? 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. 

I would like to submit to the record, from a roundtable we held 

in Arizona about a month and a half ago, the transcript. 

Chairman GRAVES. Without objection. 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. 

Mr. Perciasepe, and from future—from now known as Administrator Bob. How is that? 

Mr. PERCIASEPE. Deputy Administrator Bob. 

Mr. SCHWEIKERT. Excuse me, Deputy Administrator Bob. 

And there is a rumor going around you are going to be leaving 

us in a few weeks. Is that true? 

Mr. PERCIASEPE. Yes, it is correct. 

Mr. SCHWEIKERT. And this is how you celebrate your departure, is hanging out with us? 

Mr. PERCIASEPE. I know that I am trying to represent my position of my agency and the president correctly here but I view this 

as my solemn duty to do so. 

Mr. SCHWEIKERT. And you were in front of the Science Committee a couple of weeks ago, and as I even shared with both my 

staff and even some of the members on the other side, I thought 

you treated me particularly fairly because some of the discussion, 

having spent a lot of time digging into this Waters of the U.S. rule, 

it is complicated. But you do understand our stress level, particularly for those of us from the arid southwest, what some of these 

rules mean. 

I am going to ask a favor of you. 

Mr. PERCIASEPE. Yes, sir. 

Mr. SCHWEIKERT. Because rumor is you are leaving in about 

three weeks. In the Science Committee there was a request from 

Mr. Webber from Texas specifically asking for any of the maps that 

Fish and Wildlife—and I know you provided some of the maps but 

we would really like to get our hands on any of the mapping that 

was provided by Fish and Wildlife in helping sort of design the impacts and the calculations, particularly economic impacts of this 

rule. 

Mr. PERCIASEPE. Okay. I think we may have provided those 

maps earlier this week, but if not, I will absolutely make sure that 

they go in there. 

Mr. SCHWEIKERT. My notes may be a little bit—— 

Mr. PERCIASEPE. That is fine. You know, there is always a 

running back and forth between all of us. But let me just say that 

SBREP-219 with DISTILLER

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when I did look into that, I did discover that the maps were created 

as far back as 2005, and they have been updated since then. And 

they were not for regulatory purposes. But I think all the maps 

that I think we had, if they are not at the Committee now, they 

are going to be there this week. 

Mr. SCHWEIKERT. Well, Deputy Administrator Bob, one of our 

concerns is was the mapping also used in trying to do some of the 

economic analysis and trying to understand its impact of the rules? 

There was one scenario that I left from last week, and I really 

wanted to sort of walk through because you have personal experience on this. When you were with—was it Sierra Club before? 

Mr. PERCIASEPE. No. No, sir. I was with the National Audubon. 

Mr. SCHWEIKERT. Oh, sorry. 

Mr. PERCIASEPE. Bird conservation. 

Mr. SCHWEIKERT. And one of the projects was in our Dry Salt 

River. 

Mr. PERCIASEPE. Yes. 

Mr. SCHWEIKERT. And it is a beautiful project. You know, the 

rehabilitation using the gray water. 

Under this updated Waters of the U.S. rule, do you believe you 

would have to get a 404 permit to do that project today? 

Mr. PERCIASEPE. The actual restoration? 

Mr. SCHWEIKERT. The actual retention, the movement, the 

capturing of the water, the actual project, would that project, from 

beginning to end, today require a 404 permit? Particularly, also, 

some of the—there was some environmental damage. I mean, old 

batteries in there. 

Mr. PERCIASEPE. There was a brownfield site across there. And 

I think as I mentioned to you I worked with the former mayor of 

Scottsdale, Sam Campagna, to do that project. And it may have 

gotten a 404 permit. I think it was the Corps of Engineers that did 

that restoration. 

Mr. SCHWEIKERT. Actually, I think they actually did some of 

the water channeling. I think the project was separate. I am reaching back in my mind. 

Mr. PERCIASEPE. Well, down in the stream bed, where I have 

actually gone birding and looked at where there has been some 

water brought into there and some vegetation is now growing, in 

that streambed, if there was a disturbance of the streambed—— 

Mr. SCHWEIKERT. It would have required, particularly 

under—— 

Mr. PERCIASEPE. But up on—yeah. 

Mr. SCHWEIKERT. Because there are two mechanics, and I 

have only like 45 seconds to try to run this through. One was in 

many occasions where we have actually tried to do good acts, my 

fear is if this gets an expansive interpretation, all of a sudden the 

good acts, I am now going to be required to get a 404 permit and 

go through those hoops. So in some ways is there a potential we 

are creating a barrier to there? 

And I am going to sort of leap and let you sort of combine the 

answers. The last time I sort of walked through a scenario of, okay, 

this is not about the water, it is about anything that is a pollutant 

in the water. So our little scenario of the dry wash behind my 

SBREP-219 with DISTILLER

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home, and I put fertilizer and plant and the sediment, you know, 

and that 14 inches of rain I get a year that all come on a Tuesday, 

it is running down the wash and hits the Verde River, and the 

Verde River hits the Salt River, and runs into the rehabbed riparian area, I use fertilizer. I move dirt. It potentially got washed 

down that dry wash into a running river. Did I potentially need a 

404 permit in planting my tree? And what is my exposure that may 

not be your intent today, but the way this is drafted, there is a 

whole new cause of action and future litigation that is coming at 

us that the lawyers now get to spend the next decade moving that 

direction? 

Mr. PERCIASEPE. Well, the quick answer is, without—and I 

want to put the asterisks next to this. I would love to go to your 

house and look at this project myself, but I would say it is highly 

unlikely it is significant under the way we prepared this rule. 

Whereas, the existing regulation, the law on the books that the Supreme Court has been opining about, it has no such clarity of what 

is significant. It just simply says anything the field biologist thinks 

might have an impact downstream. 

Mr. SCHWEIKERT. Mr. Chairman—because I am way over 

time—litigation exposure. 

Mr. PERCIASEPE. Yeah. I mean, I think it would be less than 

what currently exists. 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. 

Chairman GRAVES. Mr. Payne? 

Mr. PAYNE. Thank you, Mr. Chairman. 

And I will follow Mr. Schweikert’s lead and call you Deputy Administrator Bob. And also, based on, hearing that you are going to 

be leaving, probably after today you figure you should have left 

three weeks and a day earlier. Well, we are going to try to just get 

some questions answered. 

There has been a lot of discussion about how the EPA’s new rule 

can negatively affect. Can you just list or describe ways that it can 

positively affect small business? 

Mr. PERCIASEPE. Well, I will just do something very quickly 

here. 

On the water definitional rule, or the Waters of the United 

States, we firmly believe—and we heard this from the discussions 

we have had with small businesses that (a) they want to make sure 

that the law is interpreted correctly because they want clean water; 

but second, they want to be able to have clarity or the certainty 

of what is in and what is out. And you know, we are struggling to 

do that. And that is our intent to try to do that. And we will continue to endeavor in that. 

On the Clean Power Plan rule that we have talked about a little 

bit here, one of the things that EPA has laid out there is that we 

want states to really seriously consider energy conservation as an 

important part of what their plan might be. And I know for sure 

that the whole sector of energy conservation, whether it be smart 

grids or how to make things better in your house is going to be 

very oriented to small business opportunities. 

Mr. PAYNE. As a matter of fact, through Homeland Security and 

the Cyber and Security Bill, I have a piece of legislation that was 

amended into that bill and to do a smart grid study for upgrading 

SBREP-219 with DISTILLER

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the grid across the country and benefitting areas that tend to have 

natural disasters and also looking at manmade. So that is right up 

my alley. 

Now, why are you having such a hard time getting small business to understand these issues? 

Mr. PERCIASEPE. Well, I think that we are spending a lot of 

time with small business. I know that one of the issues the Committee has is why not do that under the Regulatory Flexibility Act, 

and it is because a lot of the impacts that may or may not accrue, 

and a lot of the benefits that may or may not accrue, depending 

on how these proposals unfold, will be indirect impacts or indirect 

opportunities, and the Regulatory Flexibility Act deals with direct 

impacts. So we are not regulating somebody who does an energy 

conservation project, you know, with a new kind of thermostat. We 

are not regulating those people, but they may have an opportunity 

to provide more business. 

So we have reached out to small businesses. We have 

roundtables underway with the SBA on the water rule. We are in 

the process of finishing up our formal hearings this week on the 

Clean Power Plan, and then we plan between now and when the 

rule is finalized, and even way before that, to spend even more 

time with small businesses, whether it is small co-ops or small municipals, or even the indirectly impacted small businesses. 

Mr. PAYNE. Okay. And, you know, around the whole issue 

around the complexity of all of this, you know, the Clean Water 

Act, you know, increase the amount of time it takes to make jurisdictional determinations. In your estimation, how much shorter 

time will these jurisdictional determinations take with the proposed rules as opposed to the old ones? 

Mr. PERCIASEPE. The current one, because of the way it is 

written, requires almost every request for—or any project that 

might be near water, for them to go through a process on a caseby-case basis with the Corps of Engineers. The other thing we are 

trying to do here, and the intent is to have enough definition, so 

along the lines we were talking about earlier, Congressman, that 

it would reduce the number of case-by-case determinations and 

therefore make it more quickly apparent whether they will have a 

jurisdictional issue or not. 

But I also want to point out, if you are not going to discharge 

pollution or put fill into the water, it would not matter one way or 

the other. 

Mr. PAYNE. Okay. Thank you very much, and I yield back. 

Chairman GRAVES. Mr. Hanna? 

Mr. HANNA. Hi, how are you? 

Mr. PERCIASEPE. I am fine. 

Mr. HANNA. Good. 

You know, if you are trying to prove that you are trying to make 

things easier, you are not really doing it. As you can sense, the cynicism in this room is, at least on our side of the aisle, profound. 

And I do not think that it is borne out of some disinterest in the 

environment or anything like that. I think for one thing, your 

former administrator, Lisa Jackson, her comment that it was not 

her job, to paraphrase, to worry about the economy, if you remember that, was, I think, a scary thing to hear for everyone in the 

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country. And the subjective nature of the conversation here today 

and the notion that so much about this has the potential to be arbitrary and capricious and the concern that the farmers and builders 

and contractors that I deal with daily—I was in construction for 

many years—it is not in any way—and I am not surprised that you 

said that businesses are concerned to have clean water, I mean, 

who is not? That is really not much of a statement with all due respect, or a surprise. 

The problem your organization has is nobody believes you. You 

have no credibility here because, frankly, people feel put upon and 

the burden—I just went through almost 13 years in our community 

to get a 404 permit through the Army Corps of Engineers for something that was a relatively simple process and it would appear to 

a lot of people I know, and I am sure you hear this, too, that the 

EPA is now our enemy, not our friend. That somehow everything 

has become so burdensome, so complicated, so drawn out that the 

growth that we look for in our economy, the opportunities that lie 

in front of people, that you are an obstructionist organization and 

not someone who ushers them through the process. And for people 

in business, you know, every bureaucrat that walks through the 

door, it feels like they are throwing an obstacle at their feet. And 

here you are, one more, but yet you are bigger than all the rest and 

you people assume that you can in some way interfere in everything, everywhere, all the time. 

And when I hear the definition of navigable waterways, you 

know, and people want to believe—people are inclined to believe 

that it means the water off their roof. So when you explain that 

it does not, and I am just telling you what the people I work for 

feel, they do not believe you, and they are concerned. And if the 

concern seems disproportionate to your intent, which I am listening 

to you, and I believe you are earnest in what you are saying, you 

need to back up because frankly the outcome that you desire is 

going to be pushed back by this entire country, not because it is 

not an outcome that we might all want and even agree on, but because frankly, nobody believes you. 

I wonder how you feel about that. Or if you even agree. 

Mr. PERCIASEPE. Well, I have not, and nor does EPA do polling 

to determine who believes us or who does not believe us—— 

Mr. HANNA. But you do not have to. 

Mr. PERCIASEPE. Let me just say what I believe. Okay? 

I do not believe that most people do not trust EPA. The polling 

I have seen, for what it is worth, back in the past by others, show 

that people prefer EPA to be setting standards. And, you know, but 

I do not have enough data on what every person in the United 

States things about—— 

Mr. HANNA. No, but preferring to have them set the standards 

is not the same as trusting them. 

Mr. PERCIASEPE. Yes. So this trust thing is a problem, particularly if Congress has it. This is not an idle problem, and we need 

to work on that. And I am here today trying to explain what our 

intent is, and to try to build a bridge. 

Mr. HANNA. I appreciate that, but you are not going anywhere 

with the presentation I see today. Backing up and blaming the Supreme Court, or using them as a crutch, that also is not helpful beSBREP-219 with DISTILLER

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cause at the end of the day this place has the ability to do what 

it would like to see done. We have the capacity to make mistakes 

here, to undo what you might regard as good work and may very 

well be good work, but if you cannot make us trust you in that regard, you are going to have an outcome that you do not like and 

that potentially we do not like. 

My time is up. Thank you, Chairman. 

Chairman GRAVES. Mr. Huelskamp? 

Mr. HUELSKAMP. Thank you, Mr. Chairman. I appreciate that, 

Deputy Administrator, for being here today. And if I have asked a 

question that has been asked before, if you would restate the answer, I would appreciate that. 

One thing that many of my constituents are asking and I share 

the same concerns as my other colleagues here, but trying to understand the claim from the EPA administrator in Kansas City a 

couple weeks ago, and similarly yours here, this would provide 

more certainty compared to your current regulations. 

Can you tell me if this regulation would allow the federal control 

or regulation of ephemeral streams? 

Mr. PERCIASEPE. It would make ephemeral streams jurisdictional if they exhibit those hydrologic characteristics that would be 

an indicator of significant and frequent enough flow to be significant. 

Mr. HUELSKAMP. Let me get the definition of what is significant, and I have been through this at the state level. Would this 

increase or decrease the amount of Clean Water Act jurisdiction 

compared to current law or regulation? 

Mr. PERCIASEPE. We believe it would reduce. 

Mr. HUELSKAMP. It would reduce that. 

Have any states suggested otherwise in their comments? 

Mr. PERCIASEPE. I have not read the state comments yet. 

Mr. HUELSKAMP. Have you read any comments about the rule? 

Mr. PERCIASEPE. Well, the comment period is open until I 

think October. 

Mr. HUELSKAMP. You have not peeked at them a little bit 

early? 

Mr. PERCIASEPE. I have been out talking to some states. 

Mr. HUELSKAMP. Have these states indicated that they disagree with the assessment that it reduces jurisdiction? 

Mr. PERCIASEPE. I have not heard that. 

Mr. HUELSKAMP. Well, I will give you a clue. In Kansas, the 

state of Kansas, the estimates are from our state, it increase the 

jurisdiction by 400 percent—400 percent more jurisdiction under 

the proposed rule. Instead of regulating 32,000 miles of stream 

miles, it would increase that to 134,000 miles. How could they be 

that wrong? You are claiming the jurisdiction goes down. The state 

of Kansas actually lives there, and we were a better environment. 

As a farmer myself I consider myself the first environmentalist. 

How could they be so wrong in misunderstanding of your rule? 

Mr. PERCIASEPE. I would love to see their analysis and I would 

love to get our staff to sit down with them and understand why we 

see such a different situation. I know that more than half the 

states already cover ephemeral streams themselves. Including Kansas. 

SBREP-219 with DISTILLER

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Mr. HUELSKAMP. Not under the Clean Water Act, sir. 

The issue here also I want to ask about is navigable. Can you 

describe or define navigable for the Committee, please? 

Mr. PERCIASEPE. Navigable in the Webster Dictionary—— 

Mr. HUELSKAMP. No, in the Clean Water Act. 

Mr. PERCIASEPE. In the Clean Water Act, navigable has been 

defined by Congress as waters of the United States. That is what 

the definition is in the Clean Water Act of 1972, and the Supreme 

Court—— 

Mr. HUELSKAMP. No, navigable is an adjective. Not describing 

the Waters of the U.S. It is a limit on the jurisdiction of the Clean 

Water Act. It does not describe every water of the U.S., sir. You 

are clearly wrong. 

Mr. PERCIASEPE. Well—— 

Mr. HUELSKAMP. Can you define navigable? Because that is a 

limit on the power. 

Mr. PERCIASEPE. Navigable waters include waters that flow 

into traditionally navigable waters that can have an impact on the 

biological, chemical, and physical integrity of those navigable waters. 

Mr. HUELSKAMP. So navigable water is water that flows into 

a navigable stream? So nonnavigable waters by that definition become navigable? 

Mr. PERCIASEPE. No. Waters of the United States—— 

Mr. HUELSKAMP. Waters of the U.S. do include nonnavigable 

waters. Is that correct? 

Mr. PERCIASEPE. Yes. 

Mr. HUELSKAMP. Okay. So there is a distinction. 

Mr. PERCIASEPE. They include the waters—the Clean Water 

Act is looking at controlling water pollution. And controlling water 

pollution, even if—— 

Mr. HUELSKAMP. The authority of the federal government is 

limited to navigable waters. 

Mr. PERCIASEPE. And controlling water pollution that could 

enter it. 

Mr. HUELSKAMP. Under navigable waters. 

Here is a question for clarification. Water pollution enters—— 

Mr. PERCIASEPE. From other streams. 

Mr. HUELSKAMP. You believe this is going to bring some certainty. 

Here is a body of water in Western Kansas. It actually rained 

once upon a time. This was a few weeks ago. Is this a navigable 

stream? 

Mr. PERCIASEPE. It is neither navigable or waters—or 

jurisdictinoal under the Clean Water Act. 

Mr. HUELSKAMP. You can guarantee me today that this will 

not be under the jurisdiction of the EPA? 

Mr. PERCIASEPE. I am just not going to go any further than 

what I just said because that is just unfair. I would have to go out 

and look at that, but it looks like wetness in a field which would 

not be navigable—which would not be jurisdictional. 

Mr. HUELSKAMP. It might flow down the road ditch to a navigable stream. 

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Mr. PERCIASEPE. It does not matter. It does not exhibit the 

characteristics that I mentioned earlier, or the hydric soils or the 

hydric vegetation. That is a puddle in a field and it would not be 

covered. 

Mr. HUELSKAMP. So you can absolutely guarantee me a puddle 

in a field, a road ditch in western Kansas will not be covered— 

guaranteed not covered under this new regulation? 

Mr. PERCIASEPE. A road ditch that is not a channelized stream 

would not be covered. Some road ditches actually are channelizing 

a stream, but putting that aside, road ditches, the vast majority of 

them are not going to be covered, not be jurisdictional, and wet 

fields are not going to be jurisdictional. They are not going to be 

jurisdictional. 

Mr. HUELSKAMP. I yield back, Mr. Chairman. 

Chairman GRAVES. Ranking Member Vela ́zquez. 

Ms. VELA ́ ZQUEZ. Yes. Mr. Chairman, I would like to ask unanimous consent to submit for the record a report from the American 

Sustainable Business Council that found that small business owners are concerned about climate change—57 are concerned about 

carbon pollution, 53 percent are concerned about climate change, 

and 53 percent believe that climate change will adversely affect 

their businesses. 

Chairman GRAVES. Without objection. 

Ms. VELA ́ ZQUEZ. Thank you. 

Chairman GRAVES. Mr. Luetkemeyer? 

Mr. LUETKEMEYER. Thank you, Mr. Chairman. 

Just a couple questions, sir. With regards to power plant oversight, I know that apparently—correct me if I am wrong here—it 

appears that the agency, when they figure the costs of the rules 

and regulations in power plant rules, that they considered it on a 

global scale. Is that correct? The cost benefit on a global scale? 

Mr. PERCIASEPE. Well, I am not exactly sure of the term there, 

but when we look at—— 

Mr. LUETKEMEYER. Do you take other factors besides what 

would we could consider domestic? Things that would affect only 

the United States? Do you take into effect whatever cost savings 

or costs otherwise may be affecting other areas of the world? Our 

neighbors to the north, south, east, west? 

Mr. PERCIASEPE. I do not know the answer to that. I am going 

to say generally no, but here have been instances where, obviously, 

we have cooperated with other governments, like Canada on acid 

rain, where we have done joint work together. But I would generally say that we were looking at the impact in the United States. 

Mr. LUETKEMEYER. Well, what I have been told is that you do 

take into account calculating benefits on a global scale for coal referenced rules, which have a dramatic impact on coal-fired electrical 

generation plants, of which I have got a couple in my district. In 

fact, one closed up as a result partially of the rules that have come 

down. And I am just kind of curious why you included the costs of 

savings or other benefits of other countries over what should be, I 

would think, only the cost benefits that would be for us domestically. 

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Mr. PERCIASEPE. I really apologize. I should know what you 

are asking, but I do not want to guess. So if it is okay with the 

Committee and the chair, I would like to research that—— 

Mr. LUETKEMEYER. Sure. We can follow up. 

Mr. PERCIASEPE.—and provide the answer. 

Mr. LUETKEMEYER. Sure. 

Other than that, just one other concern. When you go down the 

road with these different rules and regulations that you are looking 

at, basically, the president seems to be trying to implement carbon 

tax rules around the Congress by implementing some of the rules 

through your agency. I think it is very, very concerning. I think, 

you know, again, when you do this, you need to go through the 

RFA process to find the effect on small business, and it is very concerning to me that we are even going down this road when you look 

at what Australia just did. Australia implemented the carbon tax 

two years ago and found it increased costs significantly, over 15 

percent, and it affected thousands and thousands of jobs, and they 

now have withdrawn that. I think we need to be very careful down 

the road that we are going down and we need to make sure we continue to adhere to the process and the procedures that are in place 

which today we are talking about, the Regulatory Flexibility Act. 

It is a very, very important tool for analysis, not only for you but 

for us, to make sure that the rules that you are putting in place 

are something that we can go along with, that we believe our constituents, our small businesses are having to live under and would 

be beneficial to them rather than costing them. Again, when you 

see what is coming out of other countries with regards to the kind 

of power plant rule and regulation that is being proposed, and they 

are backing off, it should give us pause. And for certain, to be able 

to—I would think it would be a red flag to make sure you adhere 

to the process of procedures. 

With that, if you want to respond, fine, sir. 

Mr. PERCIASEPE. Sure. Just a couple of quick comments. 

First of all, I want to be really clear to the Committee. We believe that we should be looking at the impacts of all different segments, whether it is small business or large business. I just want 

to be really clear about that. And somebody at EPA did make the 

statement earlier that it is not in our job description—but it was 

not Lisa Jackson, I can assure you that. It was not. It was a lower 

level EPA employee who made a mistake. That is all I want to say. 

Made a mistake. 

Mr. LUETKEMEYER. Now, to follow up on that, sir, before you 

move on to your next comment, that is why it is important that you 

do the RFA, because that affects the economic concerns that we 

have. And when you have a comment like that, that gives us pause. 

I am sorry. Go ahead. 

Mr. PERCIASEPE. So, there are two things. I want to make it 

clear that we are not trying to implement a carbon tax or anything 

like that here. The Clean Air Act gives us very specific authority 

to look at sectors, and so in the last term we did a light duty vehicle regulation that reduced the greenhouse gases from light duty 

vehicles. We worked with the Department of Transportation on 

that to make sure it aligned so the automobile manufacturers only 

had one thing to implement between the CAFE and the carbon 

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rules. We reached consensus with the automobile manufacturers. 

We had a process with the small automobile manufacturers. We exempted them from the rule completely. And then they came back 

to us and said, you know, we want to be able to opt in if we are 

making really efficient cars because we want to sell our credits to 

the other automobile manufacturers. And so we actually have an 

opt-in for small businesses in that rule. So I do not want you think 

we do not really think about this. 

And the two big carbon—so-called carbon rules that EPA is 

working on—one was the automobiles, which is in the process of 

being implemented now and has those kinds of provisions I just 

mentioned, and the other one, which is the power plants, which we 

have not implemented yet, which is going to be something we are 

going to have to work out with states, where we are going to be 

continually looking for ways that we can incorporate ideas and opportunities like that to be able to deal with small businesses, and 

we hope that many small businesses will capitalize on some of the 

business opportunities as well. 

But we do look at this. I want you to believe that and not not 

trust us. 

Mr. LUETKEMEYER. Thank you for your comments. 

I yield back. Thank you, Mr. Chairman. 

Chairman GRAVES. Mr. Tipton? 

Mr. TIPTON. Thank you, Mr. Chairman. 

I would like to associate myself with many of the questions and 

comments of Mr. Luetkemeyer because one issue, and Deputy Administrator, does it disturb you a little bit when you were just talking about—and that is admirable that they were able to achieve 

this, but some of the small car companies wanting to be able to sell 

their carbon credits back, does it disturb you when we talk about 

the sense of Congress—which created the EPA, by the way—had 

rejected cap and trade? And effectively now we are seeing it moving 

forward in a regulatory action? 

Mr. PERCIASEPE. I missed—— 

Mr. TIPTON. I was just quoting you. You were just saying that 

they wanted to be able to use their credits in regards to—— 

Mr. PERCIASEPE. Oh, we always do this in our rules. In all of 

our automobile rules. If one automobile manufacturer does a better 

job of pollution control than others, they can move those credits 

around between the automobiles. But they cannot sell it to, you 

know, a power plant or vice versa. It is inside—market mechanisms has been something EPA has used in rulemaking going back 

to the early 1980s. 

Mr. TIPTON. Yes, sir. I understand that. I guess my point is 

Congress had rejected under a democrat administration cap and 

trade. 

Mr. PERCIASEPE. This is not a cap and trade program. This is 

the ability to trade credits in between. But again, we have been 

doing it since the 1980s. 

Mr. TIPTON. And I think that is really part of the concern is we 

see stepping stones to movement. 

If we go back to water, when Secretary Salazar, secretary of interior was intiating—were you familiar with the Blueways program? 

Mr. PERCIASEPE. No, sir. 

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Mr. TIPTON. Blueways was coming out of the Department of Interior, which is effectively a precursor to the waters of the U.S. 

And I would invite you or your successor to make sure that they 

read the reports that were coming out of the Blueways program, 

effectively citing pollutants coming from faraway farmlands in the 

Midwest. And it effectively really goes to Mr. Schweikert’s point in 

terms of once water is put on the picture that Mr. Huelskamp had 

shown you, we may not define that as navigable, but as it flows 

down effectively, that backflow becomes all navigable waters. 

And that is really the concern people have is once you start regulating, it does have impacts, and those costs that are going to be 

associated with it. Through this Committee, we actually have the 

empirical evidence that through regulatory costs in this country 

right now, Americans are paying $1.8 trillion in regulatory costs. 

And no one is suggesting we get rid of all regulations. But those 

are real costs. 

Right now in Colorado, yesterday, you held EPA hearings, and 

unfortunately, you held them in Denver. We sent two letters to the 

director requesting that the hearing actually be held in the impacted area over in Craig, Colorado, Moffat County in my district. 

We received no response from the EPA. Would it be appropriate 

when we are holding these hearings, and I think you heard loud 

and clear the importance of these RFAs, to actually go to the impacted communities rather than just going to urban areas for hearings? 

Mr. PERCIASEPE. The hearings are just one aspect of our outreach, and we have tried to distribute them around the country in 

different parts of the country so people have an opportunity. Let 

me just say this categorically. EPA will meet with anybody who 

wants to meet with us on this, and we are going to reach out to 

virtually every state and the constituencies in each one of those 

states, and we are in the process of doing that. 

Mr. TIPTON. Great. Can we get a hold of you, and you will help 

facilitate with us for Director Jackson to be able to come to Craig, 

Colorado, and we will meet with him? 

Mr. PERCIASEPE. You tell me who it is they are meeting. I will 

try to figure out—— 

Mr. TIPTON. We are going to be able to meet with community 

members, with county commissioners, state legislators, the impacted private entities in rural Colorado that are going to impacted 

by proposed EPA rules. 

Mr. PERCIASEPE. So we would want to work with the state of 

Colorado because they are the ones who are going to have to implement it. 

Mr. TIPTON. And you will be willing to come to Colorado? 

Mr. PERCIASEPE. I am willing to get on the phone and get with 

the governor and try to figure out how we do that. 

Mr. TIPTON. Great. We would love to be able to have you come 

in. And I think when we are talking a little bit about—— 

Mr. PERCIASEPE. We will have a meeting. I do not know where 

the meeting will be, but we will have a meeting. 

Mr. TIPTON. I think that is part of the problem. We just had 

rural Coloradoans had to drive four and a half, six hours to be able 

to go to the meeting in Denver, Colorado. It is important that when 

SBREP-219 with DISTILLER

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we are talking about outreach, I think not to discard rural America 

because these are where the real impacts. 

And when we are talking about the states are going to have to 

implement it, do you share with me some of the concern when we 

are looking about some of the carbon credits? If you want to be able 

to see blue skies and a coal-fire power plant, come to Craig, Colorado with me. We will be able to see that. But the concern that we 

are hearing, and these is out of senior citizens that are on fixed incomes, young families that are just trying to be able to get started, 

they are seeing taxation via regulation to where those utility bills 

continue to climb. Is this taken into consideration at all by the 

EPA? 

Mr. PERCIASEPE. Our economic analysis shows that energy 

bills will decline. 

Mr. TIPTON. When? 

Mr. PERCIASEPE. Between now and 2030, the energy bills 

will—— 

Mr. TIPTON. If I am paying $100, it is actually going to go 

down? 

Mr. PERCIASEPE. Our national estimate—remember, we are 

doing a national estimate—is that energy bills will decline 8 to 9 

percent. 

Mr. TIPTON. I would love to see that study. 

Mr. PERCIASEPE. It is in our Regulatory Impact Analysis. And 

we can point that out if the Committee would need to have that. 

Mr. TIPTON. Great. Thank you, Mr. Chairman. I yield back. 

Chairman GRAVES. Mr. Collins? 

Mr. COLLINS. I will be brief here. 

In looking through some of the rules and use of terminology, I 

think what seems to be bothering a lot of people, words like significant. And here in the proposed rule in the Federal Register it says 

for an effect to be significant it must be more than speculative or 

insubstantial. So when we use that word, is there any data behind 

that that would suggest what that means? 

Mr. PERCIASEPE. That is one of the things we are trying to 

deal—I believe—I may be wrong, and somebody behind me may be 

able to clarify—I believe that that is just the language that the Supreme Court used and what we are trying to do with the rest of 

the rule is actually try to put a boundary on that. 

Mr. COLLINS. Yeah, this is actually out of the regulatory text. 

Mr. PERCIASEPE. We were probably writing that in there, but 

Justice Kennedy’s opinion. So, what we have done with the rest of 

the rule is try to say, well, what would that be? And it gets back 

to trying to do it on a scientific basis as opposed to does it affect—— 

Mr. COLLINS. The problem is small business in trying to adhere 

to something in reading through this, they are not going to know 

where to take something using a word like significant. 

So I guess I would conclude simply in saying—well, let me also 

go to another point today. Too many times in Congress with the 

public it looks like the EPA has a ‘‘solution looking for a problem.— 

So today in our Science Hearing on the coal plants, a data point 

came out that said if the United States industrial complex and the 

United States power generation complex produced no CO2 whatsoSBREP-219 with DISTILLER

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ever, none, they were all shut down, how would that impact the 

amount of CO2 going into the atmosphere in the world? And the 

answer was 2 percent. So here we are. So we could shut down all 

the power plants, we could stop all of our production that emits 

any CO2. The impact in the world is quite insignificant, negligible, 

de minimis. Two percent is not going to have an impact, not given 

what we are doing. So that is part of the issue, and I say the frustration on our side is the need for jobs, the growing economy, and 

then having the EPA overreach for something that is not needed. 

Again, a solution that is looking for a problem; a problem that does 

not exist, certainly not that we could have an impact on. 

So it was just interesting. I believe you admitted there is a trust 

factor between the EPA and Congress, clearly. There is a trust factor between our farmers. And I always have a saying, do not bring 

me a problem without a solution. The EPA has a real problem. 

Congress does not trust you. Farmers do not trust you. The public 

does not trust you. So what is the solution? Do not bring me a 

problem without a solution. It is a simple solution. Withdraw the 

rule. Start over. Understand what you have done wrong. Reach out. 

Study the small business. Do the RFA. That would mean so much 

to I think this Congress and the country for the EPA to say we 

were wrong. We got ahead of ourselves. We admit that there is 

misunderstanding. We are going to withdraw the rule, take all this 

into account. And since there is no judicial deadline, we will move 

forward on another day. We screwed up. Do you know what that 

would do for your trust factor in Congress? It would take you a 

long way. 

So all I would say, I know you are leaving, but for my two cents 

worth, if you could convince your superiors to withdraw this rule, 

your credibility would skyrocket in the EPA, and I would suggest 

you seriously consider it. 

I yield back. 

Chairman GRAVES. Mr. Schweikert? 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. 

Deputy Administrator Perciasepe, sort of a continuation on a bit 

of the thought exercise here. Significant nexus. Ultimately, I believe in your testimony, the discussion was this rewrite, this update of waters of the U.S. has been driven because of multiple Supreme Court rulings? 

Mr. PERCIASEPE. Right. Keep in mind it is a definitional rule, 

so it is defining something. We had it defined in the 1980s and the 

1970s in a very broad way. The Supreme Court has several times 

said you cannot use that approach. You need to come up with a different approach. 

Mr. SCHWEIKERT. And some of the significant nexus language 

actually came out of the Supreme Court language? 

Mr. PERCIASEPE. That is right. 

Mr. SCHWEIKERT. I am going to ask you actually for a personal 

opinion, and I know this is a little awkward, instead of your hat 

as the deputy administrator, but you are leaving in three weeks so 

you are allowed to have a personal opinion. 

Mr. PERCIASEPE. I am a citizen of the United States. 

Mr. SCHWEIKERT. Over the next decade, your personal opinion, 

how much litigation is ultimately going to take place in defining 

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significant nexus? Because the regional differentiation of that is incredible if you think about our lives out in the desert southwest 

compared to other parts of the country. 

So where I am heading on this is your personal opinion, how 

much litigation are we going to look at in just, once again, if this 

rule goes into effect as written, in fixing these definitions or tightening them up or politicizing them or moving, what do we expect 

to see? 

Mr. PERCIASEPE. You know, maybe it is sort of—and also a little bit towards Mr. Collins’s—who just had to leave—answer, I can 

tell you that Gina McCarthy and Bob Perciasepe, as long as I am 

here, but certainly my immediate supervisor or boss, Gina McCarthy, want nothing more than to build credibility and confidence in 

the Congress. 

So from a personal perspective, we would hope that we would be 

able to get out of the situation we have been in for 40 years with 

everything keeping going to the Supreme Court and try to get that 

to stop. And at some point, you know, I do not see—if we do nothing it will continue to keep going up there and they will continue 

to keep—— 

Mr. SCHWEIKERT. But if you also do this, I mean, in many 

ways the term ‘‘significant nexus’’ is a new term of art, and now 

we have to define it. 

Mr. PERCIASEPE. Right. 

Mr. SCHWEIKERT. And is a significant nexus different in Oregon compared to the desert southwest? Is it different—— 

Mr. PERCIASEPE. Yes. 

Mr. SCHWEIKERT.—you know building that box. And where 

you are hearing a lot of stress in our voices is for places like Maricopa County, Arizona, you know, one of the third, fourth most populous county in the country, we recycle every drop of our water. 

Every drop of it. We think we do some of this really, really well. 

Is there going to be litigation that is being driven on another, you 

know, how water—the significant nexus of water in Delaware and 

all of a sudden we find out that the way we operate in our region, 

we are back in court having to redefine for a definition that works 

for us. 

In my minute and a half I have left, you actually just touched 

on something. You have heard the credibility discussion, distrust 

discussion. Could you share with Administrator McCarthy two 

things from me if you have the chance? One is stop giving speeches 

where you vilify us, where in your language you say you are going 

to go after those of us who have questions, that only real scientists 

are worthy. And those are quotes from articles. You did not say 

them but the administrator did. 

And the second part of that is transparency. It is not good 

enough to tell us what your study says. We need the data sets. It 

is unacceptable to have proprietary data saying, well, we hired a 

contractor to do it. If you are going to make public policy, public 

policy needs to be done by public data. The public deserves the 

right—right, left, activists, researcher—to see the base data sets 

and model it. Because I think actually some of the distrust comes 

from the inability to see that baseline data and know you could 

stress it and reproduce it. 

SBREP-219 with DISTILLER

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So that is more of an editorial comment, but I actually think it 

would take us a long ways to openness, transparency, and rehabilitating the relationships between the agency and the public. 

Thank you, Mr. Chairman. 

Chairman GRAVES. Thank you, Mr. Perciasepe, for coming in. 

And I might suggest, because you have said on several occasions 

today, you know, you are seeking input. You want to, and we have 

been talking about credibility and transparency and you want to 

hear from the business community. I would suggest that you comply with the RFA. And why not do it voluntarily? Why not go 

through the steps that are laid out? And help your credibility out 

considerably and do it through the process, because that is really 

what this hearing is about—is why the EPA does not follow the 

Regulatory Flexibility Act, which is what this Committee is all 

about. And it does require all agencies, the EPA included, to conduct outreach and assess the impacts of rules on small businesses. 

And hearing from those small businesses early in the rulemaking 

process is going to identify these problems that come up, and hopefully, as has been pointed out, produce better solutions and better 

rules. But unfortunately, EPA is not complying with the RFA. And 

the result, it is confusing. It ends up badly crafted regulations and 

you get into situations like you are in. But the Committee is going 

to continue to engage with the EPA to make sure it fully complies 

with the EPA or with the Regulatory Flexibility Act. 

And with that, I would ask unanimous consent that all members 

have five legislative days to submit statements and supporting materials for the record. 

With that, without objection, that is so ordered. 

And with that, the hearing is adjourned. Thank you. 

[Whereupon, at 2:34 p.m., the Committee was adjourned.] 

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1More information on the Climate Action Plan at: http://www.whitehouse.gov/sites/default/ 

files/image/president27sclimateactionplan.pdf. While EPA is involved in many of the Plan’s efforts, including those addressing emissions of methane, hydrofluorocarbons (HFCs), and other 

short-lived climate pollutants, this testimony will focus on the efforts to reduce carbon pollution 

from new and existing power plants. 

A P P E N D I X 

Testimony of Bob Perciasepe 

Deputy Administrator 

U.S. Environmental Protection Agency 

Hearing on EPA Actions Under the Climate Action Plan and 

Waters of the U.S. 

Committee on Small Business 

U.S. House of Representatives 

July 30, 2014 

Chairman Graves, Ranking Member Vela ́zquez, members of the 

committee: thank you for the opportunity to testify today on EPA’s 

actions under the President’s Climate Action Plan, and on EPA and 

the U.S. Army Corps of Engineers’ recently proposed rule which 

would clarify the jurisdictional scope of the Clean Water Act 

(CWA), simplifying and improving the process for determining waters that are, and are not, covered by the Act. 

EPA Actions Under the President’s Climate Action Plan 

Climate change is one of the greatest challenges of our time. It 

already threatens human health and welfare and economic wellbeing, and if left unchecked, it will have devastating impacts on 

the United States and the planet. 

The science is clear. The risks are clear. And the high costs of 

climate inaction are clear. We must act. That’s why President 

Obama laid out a Climate Action Plan in June 2013 in which he 

directed EPA and other federal agencies to take meaningful steps 

to mitigate the current and future damage caused by carbon dioxide emissions and to prepare for the anticipated climate changes 

that have already been set in motion. The Plan has three key pillars; cutting carbon pollution in America; preparing the country for 

the impacts of climate change; and leading international efforts to 

combat global climate change.1

EPA plays a critical role in implementing the Plan’s first pillar, 

cutting carbon pollution. Over the past our years, EPA has begun 

to address this task under the Clean Air Act. Our first steps addressed motor vehicles and, working with the National Highway 

Traffic Safety Administration, resulted in greenhouse gas and fuel 

SBREP-219 with DISTILLER

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economy standards for Model Year 2012 to 2025 light-duty vehicles, 

and standards for model year 2014 through 2018 heavy duty trucks 

and buses. 

Building on this success, the President asked EPA to work with 

states, utilities and other key stakeholders to develop plans to reduce carbon pollution from future and existing power plants. 

Power plants are the largest source of carbon dioxide emissions 

in the United States, accounting for roughly one-third of all domestic greenhouse gas emissions. While the United States has limits 

in place for the level of arsenic, mercury, sulfur dioxide, nitrogen 

oxides, and particle pollution that power plants can emit, there are 

currently no national limits on carbon pollution levels. 

In September 2013, the EPA announced its proposed standards 

for new natural gas-fired turbines and new coal-fired units. The 

standards reflect the demonstrated performance of efficient, lower 

carbon technologies that are currently being used today. They set 

the stage for continued public and private investment in technologies like efficient natural gas and carbon capture and storage. 

The proposal was published in the Federal Register on January 8, 

2014, and the formal public comment period closed on May 9, 2014. 

We have received more than two million comments on this proposal 

and will carefully consider them as we develop a final rule. 

On June 2, 2014, EPA issued its proposed Clean Power Plan for 

existing plants. The plan is built on advice and information from 

states, cities, businesses, utilities, and thousands of people about 

the actions they are already taking to reduce carbon dioxide emissions. It aims to cut energy waste and leverage cleaner energy 

sources by doing two things: First, it uses a national framework to 

set achievable state-specific goals to cut carbon pollution per megawatt hour of electricity generated. And second, it empowers the 

states to chart their own, customized path to meet their goals. 

The EPA’s stakeholder outreach and public engagement in preparation for this rulemaking was unprecedented. Starting last summer, we held eleven public listening sessions around the country. 

We participated in hundreds of meetings with a broad range of 

stakeholders, including small entity interests such as municipal 

and rural electric cooperatives, across the country, and talked with 

every state. 

Now, the second phase of our public engagement has begun. 

We’ve already had dozens of calls and meetings with states and 

other stakeholders. The more formal public process—both a public 

comment period that runs through October 16, 2014, and public 

hearings this week in Atlanta, Denver, Pittsburgh, and Washington, DC—will provide further opportunity for stakeholders and 

the general public to provide input. 

There has been tremendous public interest in the proposal: already, we have received nearly 300,000 written comments on the 

proposal. At the public hearings this week, we anticipate hearing 

oral comments from about 1,600 people, many of whom represent 

small businesses. 

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2 A county-level map depicting the percent of the population receiving drinking water directly 

or indirectly from stream that are seasonal, rain-dependent or headwaters is available at http:// 

water.epa.gov/type/rsl/drinkingwatermap.cfm. 

In drafting the power plant proposals, we have been mindful of 

its effects on small businesses and careful to ensure we are complying with SBREFA and all applicable requirements. Outreach 

and public comment are an important component of our rulemaking process, and we have often designed our rules to ensure 

that they do not impose an undue burden on small entities. 

Waters of the U.S. Proposed Rule 

The foundation of the agencies’ rulemaking efforts to clarify protection under the CWA is the goal of providing clean and safe 

water to all Americans. Clean water is vital to every single American—from families who rely on affordable, safe, clean waters for 

their public drinking water supply, and on safe places to swim and 

healthy fish to eat, to farmers who need abundant and reliable 

sources of water to grow their crops, to hunters and anglers who 

depend on healthy waters for recreation and their work, to businesses that need a steady supply of clean water to make their products. The range of local and large-scale businesses that we depend 

on—and who, in turn, depend on a reliable supply of clean water— 

include tourism, health care, farming, fishing, food and beverage 

production, manufacturing, transportation and energy generation. 

Approximately 117 million people—one in three Americans—get 

their drinking water from public systems that rely on seasonal, 

rain-dependent, and headwater streams—the very waters this rule 

would ensure are protected from pollution.2

In recent years, several Supreme Court decisions have raised 

complex questions regarding the geographic scope of the Act. For 

nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public have 

asked our agencies for a rulemaking to provide clarity. This complexity has made enforcement of the law difficult in many cases, 

and has increased the amount of time it takes to make jurisdictional determinations under the CWA. In response to these implementation challenges and significant stakeholder requests for rulemaking, the agencies developed the proposed rule. 

We believe the result of this rulemaking will be to improve the 

process for making jurisdictional determinations for the CWA by 

minimizing delays and costs and to improve predictability and consistency for landowners. 

The agencies’ proposed rule helps to protect the nation’s waters, 

consistent with the law and currently available scientific and technical expertise. The rule provides continuity with the existing regulations, where possible, which will reduce confusion and will reduce 

transaction costs for the regulated community and the agencies. 

Toward that same end, the agencies also proposed, where consistent with the law and their scientific and technical expertise, 

categories of waters that are and are not jurisdictional, as well as 

categories of waters and wetlands that require a case-specific evaluation to determine whether they are protected by the CWA. 

SBREP-219 with DISTILLER

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3 Because fewer waters will be subject to the CWA under the proposed rule than are subject 

to regulation under the existing regulations, this action will not affect small entities to a greater 

degree than the existing regulations. As a consequence, this action if promulgated will not have 

a significant adverse economic impact on a substantial number of small entities, and therefore 

no regulatory flexibility analysis is required. Additional background regarding the agencies’ compliance with the RFA is available in the preamble to the proposed rule. See 79 FR 22220. 4This report is available in the docket for the proposed rule at http://www.regulations.gov/ 

#!documentDetail;D=EPA-HQ-OW-2011-0880-1927. 

The agencies’ proposed rule continues to reflect the states’ primary and exclusive authority over water allocation and water 

rights administration, as well as state and federal co-regulation of 

water quality. The agencies worked hard to ensure that the proposed rule reflects these fundamental CWA principles, which we 

share with our state partners. 

For the past several years, the EPA and the Corps have listened 

to input from the agriculture community while developing the proposed rule. Using the input from those discussions, the EPA and 

the Corps then worked with the USDA to ensure that concerns 

raised by farmers and the agricultural industry were addressed in 

the proposed rule. The proposed rule does not change, in any way, 

existing CWA exemptions from permitting for discharges of 

dredged and/or fill material into waters of the U.S. associated with 

agriculture, ranching, and forestry activities. 

I want to emphasize that farmers, ranchers, and foresters who 

are conducting these activities covered by the exemptions (activities 

such as plowing, tilling, planting, harvesting, building and maintaining roads, ponds and ditches, and many other activities in waters on their lands), can continue these practices after the new rule 

without the need for approval from the Federal government. 

The scope of the term ‘‘waters of the U.S.’’ has generated substantial interest within the small business community. In light of 

this interest, the EPA determined to seek early and wide input 

from representatives of small entities while formulating a proposed 

definition of this term that reflects the intent of Congress consistent with the mandate of the Supreme Court’s decisions. This 

input was sought voluntarily, as it was certified in the preamble 

to the proposed rule that the proposed rule will not have a significant economic impact on a substantial number of small entities, as 

defined by the Regulatory Flexibility Act (RFA).3

The small entities outreach process has enabled the agencies to 

hear directly from small business representatives, at a very preliminary stage, about how this complex issue should be approached. EPA has also prepared a report summarizing the small 

entity outreach to date, the results of this outreach, and how these 

results have informed the development of this proposed rule.4 Since 

publishing the proposed rule, the agencies have met many times 

with small businesses and other entities to hear their perspectives 

on the proposed rule and to identify potential opportunities for further clarifying CWA jurisdiction in a final rule. Most recently, the 

agencies participated in an SBA-sponsored roundtable on July 21st. 

We look forward to continuing these efforts both during the remainder of the public comment period and as we write a final rule. 

SBREP-219 with DISTILLER

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The agencies published the proposed rule in the Federal Register 

on April 21, and the public comment period on the proposed rule 

will be open for 182 days, closing on October 20. During this period, the agencies have launched a robust outreach effort, holding 

discussions around the country and gathering input from states, 

local governments, small businesses, and other stakeholders needed to share a final rule. We welcome comments from all stakeholders on the agencies’ proposed rule. At the conclusion of the 

rulemaking process, the agencies will review the entirety of the 

completed administrative record, including public comments and 

the EPA’s final science synthesis report, as we work to develop a 

final rule. 

Thank you again, and I will be happy to answer your questions. 

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SBREP-219 with DISTILLER


Insert offset folio 35 here 88925.001
36 

1 ENVIRONMENTAL PROTECTION AGENCY, FINAL GUIDANCE FOR EPA 

RULEWRITERS: REGULATORY FLEXIBILITY ACT 9–30 (2006) [hereinafter EPA RFA Guidance], available at http://www.epa.gov/sbrefa/documents/GuidanceRegFlexAct.pdf. 2Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: 

Electric Utility Generating Units, 79 Fed. Reg. 1430 (Jan. 8, 2014). 

Questions for the Record 

Committee on Small Business 

Hearing: ‘‘Regulatory Overreach: Is EPA Meeting Its Small 

Business Obligations?’’ 

July 30, 2014 

Chairman Graves 

1. The Regulatory Flexibility Act, 5 U.S.C. §§ 601–12 (RFA), 

requires the EPA to make a threshold determination whether a proposed rule is likely to have a ‘‘significant economic 

impact on a substantial number of small entities.’’ EPA refers to this threshold analysis as ‘‘screening analysis’’ in its 

own RFA compliance guide.1 The screening analysis informs 

EPA whether or not it has enough information to be able to 

certify that a rule does not require it to conduct an initial 

regulatory flexibility analysis. 

a. Did the EPA conduct ‘‘screening analysis’’ for the proposed rule that would set separate CO2 emission standards 

for new power plants?2 If so, please provide the screening 

analysis to the Committee. 

Response: The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any 

rule subject to notice and comment rulemaking requirements under 

the Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant economic 

impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. 

After considering the economic impacts of the proposed Carbon 

Pollution Guidelines for New Power Plants on small entities, the 

Administrator certified that this action will not have a significant 

economic impact on a substantial number of small entities. 

We did not include an analysis of the illustrative impacts on 

small entities that may result from implementation of this proposed rule because we do not anticipate any compliance costs over 

a range of likely sensitivity conditions as a result of this proposal. 

EPA typically uses a comparison of costs as a percentage of sales 

or a ‘‘cost-to-sales ratio’’ as the metric to determine whether a 

small entity is significantly impacts by a proposed regulation. For 

the proposed Carbon Pollution Guidelines, the cost-to-sales ratio for 

all affected small entities would be zero, indicating no impact. The 

EPA believes that electric power companies will choose to build 

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3Definition of ‘‘Waters of the United States’’ Under the Clean Water Act, 79 Fed. Reg. 22,188 

(Apr. 21, 2014). 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ECONOMIC ANALYSIS 

OF PROPOSED REVISED DEFINITION OF WATERS OF THE UNITED STATES 2 (2014). 

new EGUs that comply with the regulatory requirements of this 

proposal because of existing and expected market conditions. (See 

the RIA at http://www.regulations.gov/#!documentDetail;D=EPAHQ-OAR-2013-0495-0023 for further discussion of sensitivities). 

The EPA does not project any new coal-fired EGUs without CCS 

to be built. Accordingly, there are no anticipated economic impacts 

as a result of this proposal. 

b. Did the EPA conduct ‘‘screening analysis’’ for the proposed rule that would revise the definition of ‘‘waters of the 

United States’’ for all sections of the Clean Water Act?’’ 3 If 

so, please provide the screening analysis to the Committee. 

Response: The Regulatory Flexibility Act generally requires an 

agency to prepare a regulatory flexibility analysis for any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency 

certifies that the rule will not have a significant economic impact 

on a substantial number of small entities. As part of their ‘‘Waters 

of the U.S.’’ rulemaking, the EPA certified that the proposed rule 

will not have a significant economic impact on a substantial number of small entities. 

Under the RFA, the impacts of concern are significant, disproportionate adverse economic impacts on small entities subject to the 

rule, because the primary purpose of the initial regulatory flexibility analysis is to identify and address regulatory alternatives 

‘‘which minimize any significant economic impact of the rule on 

small entities.’’ 5 U.S.C. 603. The scope of regulatory jurisdiction 

in this proposed rule is narrower than that under the agencies’ existing regulations. Because fewer waters will be subject to the CWA 

under the proposed rule than are subject to regulation under the 

existing regulations, this action will not adversely affect small entities to a greater degree than the existing regulations. The agencies’ 

proposed rule is not designed to ‘‘subject’’ any entities of any size 

to any specific regulatory burden. Rather, it is designed to clarify 

the statutory scope of the ‘‘waters of the United States,’’ consistent 

with Supreme Court precedent. This action if promulgated will not 

have a significant adverse economic impact on a substantial number of small entities, and therefore no regulatory flexibility analysis 

is required. 

2. In the ‘‘Waters of the United States’’ proposed rule, the 

EPA certified the rule as one that will not have a ‘‘significant economic impact on a substantial number of small entities’’ under the RFA. In the RFA certification, the agency 

compared the proposed rule to the existing regulation. However, in the Economic Analysis, the EPA and Corps compared the proposed rule to the agencies’ 2009–2010 field 

practices that were based on the 2008 guidance.4 Why did 

the agencies use two different baselines to assess the costs 

of the regulation? 

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Response: The appropriate legal comparison for the proposed rule 

is the existing regulatory language. The scope of regulatory jurisdiction in this proposed rule is narrower than the agencies’ existing 

regulations. Because fewer waters will be subject to the CWA 

under the proposed rule than are subject to regulation under the 

existing regulations, this action will not adversely affect small entities to a greater degree than the existing regulations. The agencies’ 

proposed rule is not designed to ‘‘subject’’ any entities of any size 

to any specific regulatory burden. Rather, it is designed to clarify 

the statutory scope of the ‘‘waters of the United States,’’ consistent 

with Supreme Court precedent. 

As a practical matter, however, the agencies recognize that implementing this rule will result in changes when compared to current field practice, and this comparison can be useful in informing 

policy decisions. As such, the draft economic analysis quantifies the 

potential costs and benefits that could result from the implementation of the proposed rule which would result in new protected waters as compared to current guidance and practice. The draft economic analysis will be updated and published along with the final 

rule using the Corps 2013 and 2014 field data from the Section 404 

program. The final economic analysis will reflect the way in which 

the final rule will be applied. 

3. At the July 30, 2014 hearing, Deputy Administrator 

Perciasepe stated the vast majority of road ditches would 

not be jurisdictional under the ‘‘Waters of the United 

States’’ proposed rule. How many ditches has EPA or the 

Corps surveyed or assessed to support this assertion? Does 

the EPA or the Corps have any data that supports this assertion? If so, please provide that data to the Committee. 

Response: Deputy Administrator Perciasepe’s statement at the 

July 30 hearing referred to the fact that the proposed rule would 

exclude ditches from Clean Water Act jurisdiction that are excavated wholly in uplands, drain only uplands, and have less than 

perennial flow. Those roadside ditches that are excavated in uplands and have the primary purpose to drain runoff from roads, 

such that they drain only uplands, would not be jurisdictional 

under the proposed rule if they have less than perennial flow. The 

ditch exclusion applies to all ditches that fit the exclusion language, including many roadside and agricultural ditches. The agencies believe the proposed rule actually reduces regulation of ditches 

compared to the 2008 Army/EPA Jurisdiction Guidance that is currently in effect, which allows for the regulation of both intermittent 

and perennial flow ditches). 

4. The EPA has issued statements, blog posts, tweets, articles, and other documents about the ‘‘Waters of the United 

States’’ proposed rule. Can small business owners and small 

governmental jurisdictions rely on statements in those EPA 

documents as a defense to a CWA enforcement action or 

lawsuit? 

Response: At this time, jurisdictional determinations are being 

made under existing Corps and EPA regulations and guidance, and 

applicable case law not under the proposed rule. To help inform the 

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5 EPA RFA Guidance, supra note 1, at 46–7. 

public regarding the proposed rule, the EPA has also taken steps 

to translate the legal language and scientific principles of the proposed rule into easier-to-understand communications documents. 

This is the case for any major regulatory action taken by the EPA 

or any other federal agency. Such documents help explain the proposed rule to the regulated public but do not substitute for it. The 

agencies would suggest that the small business owner or small governmental jurisdiction contact their local EPA or Corps office for 

specific questions about Clean Water Act jurisdiction. 

5. EPA contends the ‘‘Waters of the United States’’ proposed rule provides greater clarity and certainty and will 

not result in a significant expansion of CWA jurisdiction. If 

that’s the case, will EPA agree to publish jurisdictional 

maps similar to the current National Wetlands Inventory 

maps showing what water bodies would and would not be 

jurisdictional under the proposed rule before publishing the 

final rule? 

Response: The agencies’ proposed rule does not include a specific 

delineation and determination of waters across the country that 

would be jurisdictional under the proposed rule. Consistent with 

the more than 40-year practice under the Clean Water Act, the 

agencies make determinations regarding the jurisdictional status of 

particular waters almost exclusively in response to a request from 

a potential permit applicant or landowner asking the agencies to 

make such a determination., The agencies are currently considering a number of options for the treatment of ‘‘other waters’’ under 

the final rule. Once the rule is finalized, the agencies will work to 

develop outreach materials for the public to make it as clear as 

possible which waters are jurisdictional and which are not. Depending on the option(s) selected for the final rule, the agencies 

may consider including maps as part of these materials if they determine that these will increase clarity for the public. 

Within the existing framework, the agencies’ proposed rule would 

provide clearer categories of waters that would be jurisdictional, as 

well as a clearer list of the waters and features that are not jurisdictional. The agencies’ proposed rule would not protect any new 

types of waters that have not historically been covered under the 

Clean Water Act and is consistent with the Supreme Court’s more 

narrow reading of Clean Water Act jurisdiction. Providing a clearer 

regulatory definition will streamline the process of making jurisdictional determination and provide additional clarity and predictability to this process. 

6. The RFA requires EPA to assess the impacts of its rules 

on small governmental jurisdictions, which are those with a 

population of 50,000 or less. EPA previously estimated that 

there are 40,000 small governmental jurisdictions in the 

United States.5 What steps did the EPA take to specifically 

consider the burdens that the ‘‘Waters of the United States’’ 

rule will impose on these small entities? 

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Response: The Regulatory Flexibility Act generally requires an 

agency to prepare a regulatory flexibility analysis for any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency 

certifies that the rule will not have a significant economic impact 

on a substantial number of small entities. As part of their ‘‘Waters 

of the U.S.’’ rulemaking, the EPA certified that their proposed rule 

will not have a significant economic impact on a substantial number of small entities. 

At the same time, the agencies recognize the substantial interest 

in this issue by small governmental jurisdictions and other smallentity stakeholders. In light of this interest, the EPA and the Corps 

determined to seek early and wide input from representatives of 

small entities while formulating a proposed rule. This process has 

enabled the agencies to hear directly from these representatives, at 

an early stage, about how they should approach this complex question of statutory interpretation, together with related issues that 

such representatives of small entities may identify for possible consideration in separate proceedings. The EPA has also prepared a 

report summarizing their small entity outreach to date, the results 

of this outreach, and how these results have informed the development of this proposed rule. This report is publicly available in the 

docket for this proposed rule. Finally, on October 15, 2014, the 

agencies hosted a second roundtable to facilitate input from small 

entities, which included participants from two small government 

jurisdictions. A summary of this roundtable is also available in the 

docket for the proposed rule. 

Congressman Mick Mulvaney (SC-5) 

Congressman Tom Rice (SC-07) 

Congressman Scott Tipton (CO-03) 

1. I am concerned that the EPA’s Lead Renovation, Repair, 

and Painting (LRRP) Rule could impose regulatory costs 

that are so high they would offset any financial benefit of 

energy-efficiency projects. This would discourage renovations and upgrades that are otherwise within the EPA’s priorities of lowering power consumption, reducing greenhouse gas emissions, and creating green jobs. Current market estimates say the rule has increased the cost of a project 

upwards of 30 percent. In developing the LRRP rules, has 

the EPA considered the negative potential impacts on our 

other national environmental priorities? If so, what were 

those considerations and conclusions? 

Response: EPA aimed to keep costs reasonable in developing its 

requirements for lead-safe work practices. In fact, EPA heard from 

industry that many of the practices were already in use by some 

contractors even before the rule as promulgated, because lead-safe 

work practices also have ancillary benefits of reducing overall dust 

during and after a job. In most general terms, the costs to comply 

with the lead-safe work practices required by a rule depend on the 

size of the job; on average, the costs can be up to a couple hundred 

dollars. For contractors who were already using some of the leadSBREP-219 with DISTILLER

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safe work practices, however, the incremental cost would be lower. 

Overall, the benefits of the LRRP rule and amendments, in terms 

of avoided health, medical, and educational costs, are expected to 

significantly outweigh the cost of improved work practices. 

During the development of amendments to the LRRP rule, EPA 

considered how complying with the rule could potentially affect the 

federal government’s Weatherization Assistance Program (WAP) 

and the Home Star program, both of which were aimed at improving energy efficiency in homes (i.e., whether there would be enough 

trained and certified renovators to do the work in the WAP and 

Home Star programs). EPA concluded the capacity in 2010 would 

be sufficient. As recently as June 2014, there were 566 training 

providers accredited for LRRP (including 361 traveling trainers) 

and 115,370 certified firms (137,256 firms including those approved 

by authorized states), and more than 510,000 individuals have 

been trained as Certified Renovators. 

2. Based on previous fines for violations of the LRRP Rule, 

it seems that the EPA relies on retroactive record examination to audit compliance rather than site visits. This puts a 

heavier burden on properly filling out paperwork than actually following the LRRP rules. And, it applies an additional 

burden upon contractors that utilize subcontractors for elements of a job that may be under the LRRP rule. Has the 

EPA considered more accurate means of ensuring LRRP 

compliance? If so, what? If not, why not? Is the EPA more 

concerned with issuing fines or ensuring safety compliance? 

Response: The recordkeeping checklist for the Lead Renovation, 

Repair and Painting (LRRP) Rule is very straightforward and easy 

to complete. When the EPA discovers a firm is in violation of the 

LRRP Rule we may also review that firm’s records to determine if 

there is a pattern of non-compliance or if the violations we discovered are limited to that inspection. General contractors who use 

subcontractors are not required to fill out or keep the records of the 

subcontractors, but must be able to provide those records from the 

subcontractors if requested. The EPA has found the record review 

process to be an effective means of determining the overall compliance status of contractors conducting renovations subject to the 

LRRP Rule. The EPA’s first concern is ensuring compliance with 

the work practice safety standards of the LRRP Rule to protect the 

health of the occupants, especially the young children, of the 

houses or child occupied facilities undergoing renovation. 

Congressman Mick Mulvaney (SC-5) 

1. This past January, Congress restored funding for the 

Centers for Disease Control and Prevention’s (CDC) Childhood Lead Poisoning Prevention Program. Does the EPA 

consult with the CDC on results of the agency’s lead paint 

monitoring? If not, why not? If so, are we seeing a measurable decline in lead paint health issues for children? 

Response: Over the years, EPA and the Centers for Disease Control and Prevention (CDC) have partnered on various lead initiatives. For example, CDC participates as an active member on the 

SBREP-219 with DISTILLER

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HUD and EPA-chaired Federal Lead-Based Paint Task Force and 

EPA served an en ex officio member of CDC’s former Federal Advisory Committee on Childhood Lead Poisoning. Additionally, the 

EPA and CDC continuously work together on outreach efforts such 

as National Lead Poisoning Prevention Week and activities related 

to the Global Alliance to Eliminate Lead Paint. 

Regarding monitoring, as described in EPA’s Air Quality Criteria 

for Lead document (2006) there are many sources that contribute 

to lead exposure, thus any measure of blood lead will reflect all 

sources of lead exposure. EPA is unaware of any national data set 

that directly measures only the reductions of those lead hazards in 

homes caused by lead-based paint. The best currently available 

data set for assessing population level blood lead statistics is the 

CDC’s National Health and Nutrition and Examination Survey 

(NHANES). 

Based on the NHANES 2014 data (sampling period 2009–2012), 

2.1%, or an estimated 535,000 children, have BLLs greater than or 

equal to 5 micrograms per deciliter (μg/dL), levels known to put 

their academic and later life success at risk. This demonstrates a 

decrease from previous years (sampling period 2005–2008 at 3.0%, 

sampling period 2003–2006 at 4.1%). While overall decreasing 

BLLs are favorable, CDC’s blood lead surveillance data, collected 

from state and local health departments, continues to identify a 

disproportionate share of cases in low income and minority communities. There is no known safe blood lead level for children, CDC, 

EPA and other federal partners continue to work together to control or eliminate lead hazards before children are exposed. 

2. From June 4, 2014 through July 21, 2014, there were 

less than 20 companies nationwide who were listed on the 

EPA enforcement website at being cited for violating the 

Lead Renovation, Repair and Painting Rule. It is my understanding that EPA, itself, has shared its concern over its enforcement plan, most notably its inability to identify contractors operating without certification, registration or ethical standards. How is the agency currently targeting those 

contractors who are either in violation of EPA rules or contractors who never received certification in the first place? 

Response: The EPA is most concerned about renovation contractors who are not following the work practice safety standards. Certified firms have also been found to be out of compliance with the 

work practice safety standards of the Lead Renovation, Repair and 

Painting (LRRP) Rule. The EPA often receives tips or complaints 

from home owners, renters or neighbors about renovation work 

practices which are not containing dust and debris. This information can lead to inspections of worksites or records inspections depending on the quality and timeliness of the information provided. 

The EPA may also work with local health and building permit and 

inspection departments to identify ongoing or projected renovation 

projects in housing built before 1978 and may conduct joint inspections of those worksites. The EPA is currently analyzing other 

methods to more effectively identify and prioritize potential nonSBREP-219 with DISTILLER

43 

compliance in areas with the highest level of ‘‘at-risk’’ populations, 

(i.e. children under six). 

3. The EPA’s Greenhouse gas rule will have significant impacts on businesses and consumers in my state, particularly 

manufacturing. If this rule is not implemented properly, 

electricity rates could climb by as much as 50 percent. The 

EPA has gone to great lengths to talk about how states have 

an abundance of choices in the proposed rule. But, the rule 

discriminates against South Carolina and other states that 

have made proactive investments in new nuclear production. South Carolina utilities and ratepayers have spent billions of dollars to build the new reactors at the VC Summer 

plant- two reactors that will deliver 1100 megawatts of carbon-free electricity to South Carolina when they are completed in 2017 and 2018. 

However, after reviewing this rule, I have learned that 

South Carolina will get no credit for this carbon reduction. 

The rule assumes that these plants are already online. Yet 

if these plants were win, or solar, they would get credit 

under the rule. Isn’t a metric ton of carbon avoided a metric 

ton of carbon avoided, regardless of where it comes from? 

Why isn’t all carbon-free generation treated the same? Is 

this something the EPA intends to change before it issues 

the final rule? 

Response: The EPA is conducting unprecedented outreach about 

this proposal and encouraging robust public comment and participation in the formulation of the final Clean Power Plan. We are 

hearing substantial input on the treatment of new nuclear in goal 

setting and will consider those comments carefully as we work toward a final rule. The comment period on the proposal is open 

through December 1, 2014. 

Under the Clean Power Plan, the EPA sets the goals and states 

get to decide how to meet the goals. States can use the under construction nuclear units in their compliance plans to meet the goal. 

To set the goals in the proposal, the EPA considered nuclear units 

that currently have permits for construction and operation. The 

proposal assumes a 90% capacity factor in generation for the new 

nuclear units. However, it will be up to states to decide how and 

to what extent to rely on these units in their plans. For example, 

if the under construction units perform better than a 90% capacity 

factor, these units could help states get even closer to their goals. 

Congressman Scott Tipton (CO-03) 

1. I continue to hear from constituents who have serious 

concerns over regulations already imposed upon them by 

the EPA. Specifically, I hear from small business remodelers 

about the EPA’s Residential Home’s Lead Renovation, Repair and Painting (LRRP) rule that became effective April 

2010. In July 2010, the EPA eliminated the opt-out, which 

doubled the number of homes affected by the rule. This action increased first-year compliance costs from $800 million 

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to $1.3 billion and affected approximately 7.2 million renovation events per year. 

Training and certification requirements for contractors 

and employees performing renovation, repair and painting 

work on residences built prior to Jan. 1, 1978 apply to painters, plumbers, contractors, window and door installers, electricians and similar specialists. Estimated costs to obtain 

certification for a remodeling company are at least $300. Initial courses for certified renovators are $300–$500. In addition, the employer is required to pay that employee for the 

day. 

We all want children and families to be safe in their 

homes. However, if we impose a rule on business, we should 

at least make sure the cost and burden of compliance is 

worth the benefit. This past January, in a bipartisan effort, 

Congress restored funding for the Centers for Disease Control and Prevention’s (CDC) Childhood Lead Poisoning Prevention Program. The 2014 Consolidated Appropriations Act 

included $15 million for the CDC program. Does the EPA 

regularly consult with the CDC on results of the agency’s 

lead paint monitoring? If not, why not? And if it does, are 

we seeing a measurable decline in lead paint health issues 

for children? What percentage of childhood lead paint 

health issues have decreased since the 2010 rule was put in 

place? 

Response: Over the years, EPA and the Centers for Disease Control and Prevention (CDC) have partnered on various lead initiatives. For example, CDC participates as an active member on the 

HUD and EPA-chaired Federal Lead-Based Paint Task Force and 

EPA served as an ex officio member of CDC’s former Federal Advisory Committee on Childhood Lead Poisoning. Additionally, the 

EPA and CDC continuously work together on outreach efforts such 

as National Lead Poisoning Prevention Week and activities related 

to the Global Alliance to Eliminate Lead Paint. 

Regarding monitoring, as described in EPA’s Air Quality Criteria 

for Lead document (2006) there are many sources that contribute 

to lead exposure, thus any measure of blood lead will reflect all 

sources of lead exposure. EPA is unaware of any national data set 

that directly measures only the reductions of only those lead hazards in homes caused by lead-based paint. The best currently available data set for assessing population level blood lead statistics is 

the CDC’s National Health and Nutrition and Examination Survey 

(NHANES). 

Based on the NHANES 2014 data (sampling period 2009–2012), 

2.1%, or an estimated 535,000 children, have BLLs greater than or 

equal to 5 μg/dL, levels known to put their academic and later life 

success at risk. This demonstrates a decrease from previous years 

(sampling period 2005–2008 at 3.0%, sampling period 2003–2006 at 

4.1%). While overall decreasing BLLs are favorable, CDC’s blood 

lead surveillance data, collected from state and local health departments, continues to identify a disproportionate share of cases in 

low income and minority communities. There is no known safe 

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blood lead level for children. CDC, EPA and other federal partners 

continue to work together to control or eliminate lead hazards before children are exposed. 

2. Second, how is EPA enforcing this rule? For example, 

from June 4, 2014 through July 21, 2014 there were 15 companies nationwide who were noted on the EPA enforcement 

website as being cited for violations. Four of those companies were trainers of the certified lead paint course for renovators. Of the remodeling companies noted, all but one 

were uncertified. The National Association of the Remodeling Industry (NARI) has been tracking violations on the 

EPA’s website since March 2013. There have been a total of 

68 violations posted by EPA since March 2013. Given the 

number of remodelers who are uncertified in the nation, 

this is a poor showing of enforcement. It is my understanding that EPA, itself, has shared its concern over its enforcement plan, most notably its inability to identify contractors operating without certification, registration or ethical standards. How is the agency currently targeting those 

contractors who do not even bother to get certified? 

Response: The EPA is most concerned about renovation contractors who are not following the work practice safety standards. Certified firms have also been found to be out of compliance with the 

work practice safety standards of the Lead Renovation, Repair and 

Painting (LRRP) Rule. The EPA often receives tips or complaints 

from home owners, renters or neighbors about renovation work 

practices which are not containing dust and debris. The EPA may 

also work with local health and building permit and inspection departments to identify ongoing or projected renovation projects in 

housing built before 1978 and may conduct joint inspections of 

those worksites. The EPA is currently analyzing other methods to 

more effectively identify and prioritize potential non-compliance in 

areas with the highest level of ‘‘at-risk’’ populations, (i.e. children 

under six). 

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