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52–881PDF 2009

THE CLEAN WATER ACT 

AFTER 37 YEARS: RECOMMITTING 

TO THE PROTECTION 

OF THE NATION’S WATERS 

(111–70) 

HEARING 

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

October 15, 2009 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

RUSS CARNAHAN, Missouri 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ARCURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

LAURA A. RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

SOLOMON P. ORTIZ, Texas 

PHIL HARE, Illinois 

JOHN A. BOCCIERI, Ohio 

MARK H. SCHAUER, Michigan 

BETSY MARKEY, Colorado 

PARKER GRIFFITH, Alabama 

MICHAEL E. MCMAHON, New York 

THOMAS S. P. PERRIELLO, Virginia 

DINA TITUS, Nevada 

HARRY TEAGUE, New Mexico 

VACANCY 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

VERNON J. EHLERS, Michigan 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

CONNIE MACK, Florida 

LYNN A WESTMORELAND, Georgia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

ROBERT E. LATTA, Ohio 

BRETT GUTHRIE, Kentucky 

ANH ‘‘JOSEPH’’ CAO, Louisiana 

AARON SCHOCK, Illinois 

PETE OLSON, Texas 

(II) 

(III) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... v 

TESTIMONY 

Brown, R. Steven, Executive Director, Environmental Council of the States .... 53 

Butterfield, Ph.D., R.N., Dr. Patricia, Dean, Professor, Washington State University, testifying on behalf of the American Nurses Association .................... 45 

Jackson, Honorable Lisa P., Administrator, United States Environmental Protection Agency ...................................................................................................... 23 

Kavanaugh, Dennis, Representative, Sandy Hook Waterman’s Alliance ........... 45 

Mittal, Anu K., Director, National Resources and Environment Team, Government Accountability Office .................................................................................. 53 

Najjum, Wade T., Assistant Inspector General, Office of the Inspector General, United States Environmental Protection Agency ..................................... 53 

Porta, Tom, Deputy Administrator, Nevada Division of Environmental Protection, testifying on behalf of Association of State and Interstate Water Pollution Control Administrators ................................................................................ 53 

Rumpler, John, Senior Attorney, Environment America ..................................... 53 

Schaeffer, Eric, Executive Director, Environmental Integrity Project ................ 53 

Shimshack, Dr. Jay P., Assistant Professor of Economics, Tulane University, 

and Visiting Scholar, Erb Institute, University of Michigan ........................... 53 

Treml, Judy, Luxemburg, Wisconsin ..................................................................... 45 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Bishop, Hon. Tim, of New York .............................................................................. 73 

Carnahan, Hon. Russ, of Missouri ......................................................................... 74 

Graves, Hon. Sam, of Missouri ............................................................................... 75 

Johnson, Hon. Eddie Bernice, of Texas .................................................................. 77 

Latta, Hon. Robert E., of Ohio ................................................................................ 82 

McMahon, Hon. Michael E., of New York ............................................................. 85 

Mitchell, Hon. Harry E., of Arizona ....................................................................... 87 

Richardson, Hon. Laura, of California ................................................................... 89 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Brown, R. Steven ..................................................................................................... 93 

Butterfield, Ph.D., R.N., Dr. Patricia ..................................................................... 99 

Jackson, Honorable Lisa P. ..................................................................................... 106 

Kavanaugh, Dennis ................................................................................................. 135 

Mittal, Anu K. .......................................................................................................... 138 

Najjum, Wade T. ...................................................................................................... 156 

Porta, Tom ................................................................................................................ 176 

Rumpler, John .......................................................................................................... 187 

Schaeffer, Eric .......................................................................................................... 190 

Shimshack, Dr. Jay P. ............................................................................................. 198 

Treml, Judy .............................................................................................................. 207 

SUBMISSION FOR THE RECORD 

Boozman, Hon. John, a Representative in Congress from the State of Arkansas, written testimony from the American Road and Transportation Builders Association, Nick Goldstein, Assistant General Counsel and Director 

of Regulatory Affairs ............................................................................................ 7 

Jackson, Honorable Lisa P., Administrator, United States Environmental Protection Agency, responses to questions from Rep. McMahon, a Representative in Congress from the State of New York .................................................... 113 

Page

IV 

Moran, Hon. Jerry, a Representative in Congress from the State of Kansas, 

written testimony, Kansas Farm Bureau, Steve Baccus, President ................ 29 

ADDITIONS TO THE RECORD 

Davis, Hon. Artur, a Representative in Congress from the State of Alabama, 

letter to the Environmental Protection Agency ................................................. 216 

National Association of Realtors, Charles McMillan, CIPS, GRI, 2009 President, written testimony ....................................................................................... 218 

Stewards of the Sequoia, Chris Hogan, Executive Director, written testimony . 221 

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(1) 

HEARING ON THE CLEAN WATER ACT AFTER 

37 YEARS: RECOMMITTING TO THE PROTECTION OF THE NATION’S WATERS 

Thursday, October 15, 2009 

HOUSE OF REPRESENTATIVES

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

WASHINGTON, DC. 

The Committee met, pursuant to call, at 10:00 a.m., in Room 

2167, Rayburn House Office Building, the Honorable James Oberstar [Chairman of the Full Committee] presiding. 

Mr. OBERSTAR. The Committee on Transportation and Infrastructure will come to order on this dreary, rainy day of a long commute 

into Washington. 

This hearing marks the 37th anniversary of passage of the Clean 

Water Act. Two years ago we did the 35th anniversary. But I set 

this hearing as an opportunity to reflect on the progress made in 

pollution cleanup; an opportunity to evaluate somewhat the successes of the Act but, more importantly, the shortcomings. 

This hearing also comes just two days short of the anniversary 

of President Nixon’s veto of the Clean Water Act, particularly nostalgic to me since I spent 10 months of 1972, a good share of it in 

this room, as administrator of the Committee on Public Works, as 

it was known then, under the leadership of the gentleman whose 

portrait is in the corner, John Blatnik, who is my predecessor and 

Chairman of the Committee at the time. We spent 10 months negotiating with the Senate and the White House on the provisions of 

the Clean Water Act, which we expected would meet with hostility 

at the White House, and we were not disappointed. 

But I think it is remindful to look at again, to revisit President 

Nixon’s veto message. October 17, 1972, he says, ‘‘I am concerned 

that we attack pollution in a way that does not ignore other real 

threats to the quality of life.’’ What? What is more fundamental to 

life than water? ‘‘Legislation which would continue our efforts to 

raise water quality, but which would do so through extreme and 

needless overspending does not serve the public interest. There is 

a much better way to get this job done,’’ said Mr. Nixon, ‘‘a bill 

whose laudable intent is outweighed by its unconscionable $24 billion price tag.’’ Twenty-four billion? That is kind of a footnote in 

today’s budget. 

‘‘The bill that has now come to my desk would provide a staggering budget wrecking $24 billion.’’ Of course, he didn’t say it this 

way and I apologize for that, but that is the way I read it. ‘‘Another 

provision would raise the Federal share of the cost of future facilities from 55 percent to 75 percent, actions which would not in any 

2 

real sense make our waters any cleaner. I have nailed my colors 

to the mast on this issue. The political winds can blow where they 

may; I am prepared for the possibility that my action on this bill 

will be overridden’’; and it was, 10 to 1. Ten to one, overwhelming 

bipartisan consensus. 

Two years ago, in our review of the Clean Water Act, I cheered 

the steps that had been made, or cited—probably a better way to 

express it—the steps made in improving the Nation’s water quality. 

But that was not really a celebration. Two-thirds of the Nation’s 

waters meet water quality goals as established by the Act, but a 

third of the Nation’s waters remain impaired; and the assessment 

for today’s hearing for me is just plain alarming. Some successes 

have been clear, but most of the big success came at a time when 

the Nation’s waters were bubbling over with phenols and untreated 

sewage, and impairment was readily apparent to the naked eye. 

The challenges today are very different from those of the past. 

No longer is there an imminent fear that the Cuyahoga River will 

again catch on fire. No longer do we see the tidal basin just down 

the road from us bubbling over and foaming with raw sewage and 

toxic wastes, the best-dressed cesspool in America, as my predecessor, John Blatnik, called it. All that sewage ringed with the 

flowering Cherry Blossoms made him think of that image. 

The issues facing the Clean Water Act and the Nation’s waters 

today are ever more complex and difficult to address; nonetheless 

malevolent, perhaps even more fearsome and more dangerous than 

the early threats of pollution. But there are still three fundamental 

elements of this Act. First, sound science and technology should 

guide our national discharge standards. Second, we need adequate 

funding, despite what Richard Nixon said way back when and the 

budgets he submitted that were repeatedly overturned and increased. Despite the Reagan budget in 1981 that converted the entire sewage treatment grant program into a loan program and cut 

it from $6 billion a year to $2 billion, at a time when the smallest 

cities of America had to bear the sizeable burdens of cost of borrowing the money, repaying it with interest to State revolving loan 

funds. And, third, a strong enforcement program still is critical to 

consistent and effective implementation. 

The Federal Government and the States have to work in partnership. The Clean Water Act was intended as a partnership program. 

But we are losing ground. We are losing ground in that partnership; we are losing ground in oversight of publicly owned treatment 

works and private sector treatment activities. Over the past decade, I have repeatedly expressed my concerns. 

This Committee, under both Republican and Democratic leadership between 2001 and 2009, has issued numerous reports criticizing the prior administration for cutting Federal and State funding and personnel to implement the Act; repeatedly cited EPA for 

failing to provide a credible Clean Water Act enforcement program. 

Time and again the Committee documented cases where reduced 

funding for the Clean Water Act programs directly affected water 

quality programs of the States. 

Congressman Waxman and I, he the Chair of the Government 

Oversight Committee, detailed the drastic deterioration to be EPA’s 

enforcement program during the previous administration. 

3 

Simply put, enforcement has set back—or deterioration, I should 

say, of the enforcement program has set back progress in achieving 

the central goals of the Clean Water Act. The New York Times, 

just last month, ran a front page story detailing the systemic failure by Federal and State governments to enforce the Clean Water 

Act. The Times found that ‘‘fewer than three percent of Clean 

Water Act violations resulted in fines or other significant punishment by State officials’’ and that ‘‘unchecked pollution remains a 

problem in many States.’’ 

In the course of the interview I did for that story, I said EPA and 

the States have dropped the ball. It is time to pick up that ball and 

start moving it again. 

I am keen to hear from Administrator Jackson, who comes with 

resolve, the commitment, and with a directive from the President 

to make this clean water program an effective one. She sent a 

memorandum to EPA staff saying ‘‘data available to EPA shows 

that, in many parts of the Country, the level of significant noncompliance with permitting is unacceptably high and the level of 

enforcement activity is unacceptably low.’’ I agree. We are going to 

explore those issues in the course of today’s hearing. 

If dischargers are allowed to violate permits, if enforcement remains only a threat, then the program is failing, and I look to Administrator Jackson to begin taking the management steps necessary to protect the water, the public health, and the environment; and she has already demonstrated her strength of character 

and determination to do so and is off to a very strong start. I welcome Administrator Jackson to this hearing. 

I now turn to Mr. Boozman, who is—or, Mr. Mica, do you wish 

to go at this point? 

Mr. MICA. Thank you, I will, and I won’t take too much time. I 

had the great pleasure of being on the Committee for 17 years and 

only as a Ranking Member for the full Committee the past three 

years; gotten more into some of these water resources issues. 

Let me say, for our side of the aisle, I don’t know anybody that 

I have talked to in Congress and our Republican conference that 

is not a strong advocate of making certain that we have clean 

water, that we go after people who carelessly flaunt laws, regulations, that pollute. We should do everything we can in a bipartisan 

effort to make certain that the beautiful land and water that we 

have been given in this Country is preserved and not polluted. So 

I don’t know anyone on our side of the aisle that isn’t in favor of 

that. 

I think our emphasis is that we take our hard-earned taxpayers’ 

money and we do the best job we can, cost-effectively cleaning up, 

enforcing. Learned a little bit about the enforcement regiment, and 

one of the things I did learn is, of course, the Federal Government 

can’t be everywhere enforcing every source point problem that we 

have across the Country. We do rely on States, and I am told 46 

States are responsible for enforcement, and we want them to do a 

good job. 

One of the things that concerns me right now is they are 

strapped just like we are strapped, but even more so because they 

actually have to balance their budgets in almost every instance; we 

just print more money. But they are strapped, and if they are 

4 

charged with enforcement, sometimes they do tend to cut back, and 

that could have an impact, an adverse impact going after people 

who are violating the laws, regulation, or polluting. So I think we 

have to figure out what to do in the meantime in assisting them, 

but in a meaningful manner and cost-effective manner to make certain that what we intend is to hold people’s feet to the fire and hold 

them responsible if they are polluting. 

Another thing I have learned is some of the data that we collect, 

we need some way to get better information. I have seen some reports that just don’t make sense. Some so-called violations end up 

being paperwork. I am not so concerned about people messing up 

paperwork as I am messing up our waters and polluting them and 

going after those violations. 

The other thing I will close with is I sat in a couple of the Chesapeake Bay hearings and that is an incredible national treasure, but 

I was interested to learn how you have different States that contribute to the pollution and different point sources, and controlling 

that. Some folks may do a good job; maybe Virginia does a good job, 

Maryland may do a good job, we will take it up to Pennsylvania 

and maybe not as good a job there, or some jurisdictions within 

those State lines. So how we effectively, in multi-jurisdictional situations, deal with violators or polluters and making certain that our 

efforts all come together and are successful in what we hope to 

achieve, which is clean water and dealing with source pollution 

point solution. 

So we are very open to suggestions working with our colleagues 

on the other side of the aisle, and, again, I think everyone has the 

same intent, but we want to get there as effectively and as costefficiently as we can for the taxpayer. 

Thank you, Mr. Chairman. I yield back. 

Mr. OBERSTAR. Thank you for those very pertinent and thoughtful reflections. I appreciate your comments. 

Now the Vice Chair of the Committee, Mr. Rahall. Welcome. 

Mr. RAHALL. Thank you, Mr. Chair. 

Mr. OBERSTAR. You have sat here on the Committee with me 

through many, many years of hearings on this legislation. 

Mr. RAHALL. I was just prepared to do that same recalling of our 

past histories on this legislation. 

I do appreciate your having these oversight hearings today, Mr. 

Chairman, and appreciate Administrator Lisa Jackson and her 

staff for taking the time to be with us. 

The Clean Water Act, as we all know, for the most part has 

served this Nation and its citizens well, but as we hold this hearing 

on the CWA after 37 years, it is apparent that this law is still a 

study in perpetual motion. As you have so well recalled, Mr. Chairman, I was a Member of this Committee, as, of course, you were 

when we passed major amendments to the Federal Water Pollution 

Control Act of 1972 in the form of the CWA Act of 1977, and, as 

well, the last time that significant amendments were made by the 

Water Quality Act of 1987. 

In 1977, myself, as a freshman Member of this body, in addition 

to passing amendments to the CWA that year, the Congress also 

enacted the landmark Surface Mining Control and Reclamation Act 

of 1977, otherwise known as SMCRA. That is the Federal law 

5 

which regulates surface coal mining and reclamation in the U.S., 

short of water quality considerations, and that is where, of course, 

the Clean Water Act picks up. 

Ever since 1977 there has been an attempt to dovetail these two 

laws. At times they have worked relatively well together, but there 

have also been conflicts between them, as we are seeing today in 

the Appalachian coal fields. 

The Surface Mining Act explicitly provides for the practice 

known as mountain removal mining, MTR, under a prescribed set 

of circumstances. Meanwhile, under the Clean Water Act, companies engaging in this activity are required to obtain their Section 

401 certification, NPDES permit, and Section 404 permits. The situation we face today in the Appalachian coal fields is that the EPA 

has invoked its authority to, for lack of a better term, second-guess 

the U.S. Army Corps of Engineers’ issuance of these Section 404 

permits. 

At stake are not just 79 mining permits now subject to what is 

being called an enhanced review process, but also, and more fundamentally, the future of surface mining. In fact, many of my constituents believe that the future of coal, all coal, is at stake in this 

discussion. There is a great deal of frustration and concern in the 

Appalachian coal fields as a result of the current review, and I cannot under-emphasize that fact. 

I have to say that I share that concern. For many years, our coal 

miners, our coal operators, mining community residents, State 

agencies, and those best representing coal regions have sought clarity and certainty about the permitting process. We want to know 

what the rules are so that miners can stay on the job and continue 

to fuel America. We all want to do what is right by the environment. Of course we do. But we must also protect coal field jobs and 

the economy. 

So I do, as I conclude, thank the Administrator for being with us 

today and, most importantly, for maintaining an open line of communication, as she has, with me on this matter. We have had several meetings already; we will have more in the future. I also want 

to say thank you to the Assistant Secretary of the Army for Civil 

Works, Jo-Ellen Darcy, and the U.S. Army Corps of Engineers for 

also meeting with me on these issues. And thank you, Administrator Jackson, for being with us today. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Thank you, Mr. Rahall. 

Mr. Boozman? 

Mr. BOOZMAN. Thank you, Mr. Chairman. We do appreciate your 

holding this very important hearing today, and we appreciate having you, Ms. Jackson, before us, and we appreciate your hard work. 

We celebrate the 37th anniversary of the Clean Water Act and 

review its compliance and enforcement programs today. When the 

Clean Water Act was enacted in 1972, it was during an era when 

raw sewage was being dumped into the Nation’s rivers and 

streams. While the Clean Water Act has put a stop to this practice, 

today’s pollutants are subtle and much more difficult to detect. Recently, The New York Times, based on EPA and State data, revealed that there were allegedly more than half a million Clean 

Water Act violations in the last five years. 

6 

Unfortunately, the data is filled with unexplained anomalies. For 

instance, the World War II Memorial in Washington, D.C., less 

than three miles from here, is cited as having six separate Clean 

Water Act violations. The Blue Plains Waste Water Treatment Facility in Washington, D.C., is having as cited 62 separate violations. 

In another case, no violations were reported, but fines were collected by the agency. 

As the Chairman stated, there was overwhelming support of the 

Clean Water Act, and the challenge of today is to focus on bipartisan solutions as we go forward. 

I think one of the solutions is helping the agency to collect data 

in a uniform manner that will allow us to determine the effectiveness of compliance and enforcement. The database utilized by the 

EPA is full of anomalies which calls into question the value of the 

data being collected. For purposes of collected data, compliance, 

and enforcement, the agency divides national pollution discharge 

elimination system permits into two categories, those that involve 

major discharge flows of one million gallons or more and those with 

less volumes or flow. There are 6700 individual permits in the 

major category and 39,000 in the non-major category involving less 

effluent discharge. 

But the agency collects these data differently from major and 

non-major discharge permit holders, and there are differences in 

how States report information to the agency. It is not always clear 

whether a violation is a paperwork violation or something far more 

serious. 

EPA itself acknowledges that there are problems with the database. Until we solve the issues surrounding the database utilized 

by the agency, we will be unable to determine the effectiveness of 

the compliance enforcement programs. Congress and the Administration should continue to focus on water quality violations, not paperwork errors. The EPA and the States should work quickly to resolve water quality violations through compliance assistance. Only 

when compliance assistance does not resolve the violation, the 

agency and the States should then move towards more formal enforcement actions. 

Mr. Chairman, we stand ready to work with you and the Administration to ensure that the compliance and enforcement regime authorized by the Clean Water Act is robust and responsive to the 

rapidly changing needs of the Nation. I think it is clear that the 

agency’s databases need to be improved, and I hope the witnesses 

today will help us in that effort. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. I thank the gentleman for those observations. 

Mr. BOOZMAN. Mr. Chairman, with your permission, I have some 

testimony that I would like to be entered into the record, if that 

is okay. 

Mr. OBERSTAR. The statement from ARTBA and others we have 

also received, and we will include that in the Committee hearing 

record, with a notation, however, that the thrust of the testimony 

is directed toward the Clean Water Restoration Act, which is not 

the subject of today’s hearing. 

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Mr. OBERSTAR. The gentleman made an interesting observation 

and it does seem somewhat incongruous that a monument on the 

National Mall should be cited. But I recall very clearly in the construction the contractor did not take appropriate steps to control 

sediment from the construction site that was running down 14th 

Street, and that point is the lowest point in Washington, D.C., and 

discharges actually reached the Potomac directly along 14th Street, 

so the contractor was indeed cited. And the monument, with the 

pool that has chlorine in it, also runs into the gutters on 14th 

Street and goes directly into the Potomac. That has to be stopped. 

And it does seem incongruous that a monument should be a pollution source, but it is. 

Do others wish to be heard? Ms. Johnson, Chair of our Water Resource Subcommittee. 

Ms. JOHNSON. Thank you very much, Mr. Chairman, for holding 

this hearing. This is an important anniversary, and one thing we 

do know, that our water is cleaner and safer than it was 37 years 

ago, and I look forward to hearing the witnesses, and I ask unanimous consent to put my statement in the record. 

Mr. OBERSTAR. Without objection, so ordered. 

Mr. Ehlers? 

Mr. EHLERS. Thank you, Mr. Chairman. It is a pleasure to be 

here and note this important event, and I certainly want to thank 

Administrator Jackson for being here. You hold one of the most important jobs in the Federal Government and we certainly appreciate it and realize it here. 

I also would note that, coming from a solid Dutch background, 

I will not offer this statement with as much emotion as you offered 

yours, Mr. Chairman, but I totally agree with your comments and 

what you said, and I appreciate the fervor that you show on this 

particular subject. You can tell we are both from the Great Lakes 

area. 

But as an environmentalist, a scientist, and a representative 

from the Great Lakes State of Michigan, I know that water is our 

most important natural resource. However, water is virtually useless unless it is appropriately clean. Regrettably, for hundreds of 

years, we as a Nation neglected our God-given responsibility to preserve and protect our clean water resources. We degraded our 

water so badly that some river surfaces actually caught on fire and 

fish died in mass quantities. However, we were able to reverse this 

degradation by passing the Clean Water Act in 1972. 

Since that time, we have made significant progress in bringing 

our waters back to a healthy state. That being said, we still have 

a long way to go, especially in the Great Lakes; and I am pleased 

that the Legacy Act has enabled us to make considerable progress 

there. But, in fact, I am afraid that we may once again be on a 

downward path of neglect due to regulatory uncertainty caused by 

two differing U.S. Supreme Court cases. Hopefully, we will l earn 

from our past mistakes and clarify these uncertainties so that we 

can ensure clean waters are passed along to our children and their 

children. 

We must act as a Congress to clarify the scope of the Clean 

Water Act. And, in the interest of time, I will not go into all the 

details, but Chairman Oberstar has been a leader on this and I 

18 

have been pleased to support his efforts in the past, and I hope we 

will be able to continue to make progress on that issue. 

Although may people fixate on the interpretation of legal terms 

such as navigable waters and waters of the United States, it is important that we not lose sight of the basic intent of the Clean 

Water Restoration Act, which is to protect our waters from pollution. We must never forget that and we must earnestly and sincerely pursue that. 

Mr. Chairman, I look forward to working with you and the rest 

of the Committee to ensure the continuing success of the Clean 

Water Act, and thank you for all your good work on it. We have 

a lot of work to do yet. 

Mr. OBERSTAR. We most certainly do. I am grateful for your scientific input and assessment, and your thoughtful approach to 

these issues. Thank you for your participation. 

Do other Members wish to be heard? Mrs. Capito? 

Mrs. CAPITO. Thank you, Mr. Chairman. Thank you for holding 

this very important hearing on a very important issue. It is clear 

that protecting our Nation’s water is important to all of us, and we 

depend on Federal and State agencies to monitor water conditions. 

As Members of Congress, we have a responsibility to exercise legitimate oversight of these agencies. With that in mind, I would 

like to thank all of today’s witnesses and, Administrator Jackson, 

I appreciate your being here. 

As you are well aware, your agency is engaged in an elevated review process for coal mining permits in the Appalachian Corps district. Generally speaking, the process of obtaining Federal coal 

mine permits is complicated and can involve years of coordinated 

effort before the companies, interest groups, and State and Federal 

agencies. Now the EPA has added another layer of review, in essence, a do-over, further delaying permitting decisions at the cost 

of West Virginia jobs. We are very frustrated. 

This new process is second-guessing decisions made by qualified 

experts in Federal and State agencies, including permits on which 

the EPA has already commented. EPA is essentially holding back 

critical permits until National Headquarters reviews and approves 

them. The way I and many of my States see this, this is a veiled 

attempt to block not just surface mining, but all mining of coal. 

Over the course of the summer, I met with officials from your 

agency and highlighted the stakes associated with continued delays 

in the permit review process. In my discussions with officials at 

EPA, I have regularly stressed that their decisions stand to have 

real implications on West Virginians. I was, however, repeatedly 

assured of an expedient review process. Administrator Jackson, it 

has now been 18 weeks since that meeting, added to the years 

these permits have been active, and there has been very little or 

no movement. 

Administrator, West Virginians are becoming very frustrated and 

there are a lot of unanswered questions. We are concerned about 

our jobs, our families, and our communities. We are hearing what 

you say, but we are watching much more closely what you do, and 

we are extremely concerned. Miners across Appalachia want to 

play by the rules. We want clean water. They want to know and 

work with your agency to resolve these permits in a way that proVerDate Aug 31 2005 14:33 Mar 29, 2010 Jkt 000000 PO 00000 Frm 00030 Fmt 6602 Sfmt 6602 P:\DOCS\52881 JASON
19 

tect both jobs and the environment. But as it stands right now, we 

don’t know what rules you want us to play by, and your agency’s 

indecision is jeopardizing many jobs in my State. I look forward to 

your testimony clearing up this uncertainty. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Thank you, Mrs. Capito. 

Mrs. Napolitano? 

Mrs. NAPOLITANO. Thank you, Mr. Chair. I add my thanks for 

holding this very important hearing. 

In my Subcommittee of Water and Power, we are very concerned. 

And thank you, Ms. Jackson, the work that EPA has done in my 

area in California has been exemplary. 

I caution some of the Members and I can tell you that for years 

we have been looking at contaminated aquifers as a result of discharges from either farming or some of the aerospace industry that 

has contaminated our waterways. And while we may think that 

these may be a little bit harsh, I would protect the water that my 

grandchildren and my great-grandson are going to be utilizing, and 

that we must be vigilant to ensure that any waters that are affected are cleaned for the use of those following us. 

It is very important. We find that we don’t have any new water 

sources. Mother Earth hasn’t given us any more, so we need to be 

able to ensure that what we have we recycle, we retreat, whatever 

needs to be done to it, and that the responsible parties own up to 

it or take steps not to pollute those waters. 

So it is a very key issue for me and for some of those that I know 

feel the same way. So thank you, Mr. Chair. 

Mr. OBERSTAR. Thank you. 

Gentleman from Ohio, Mr. Latta. 

Mr. LATTA. Well, thank you very much, Mr. Chairman. I appreciate the opportunity of being here today on this hearing. 

Administrator Jackson, thank you so much for being with us. 

If I may, Mr. Chairman, I would like to summarize my written 

remarks for the record today. 

I want to echo Mr. Mica’s remarks that we are all in favor of 

clean water. One of the things, though, that he mentioned, I think 

just to paraphrase it, is that we need to be very, very practical with 

what we are doing. 

In a later life or earlier life, I should say, I served as a Wood 

County Commissioner for six years, and as a commissioner, besides 

all of the things from the budget to you name it, water and sewer 

was one of our areas that we were assigned in the State of Ohio. 

Wood County is approximately 619 square miles; we have all or 

part of five cities, 21 villages; many, many unincorporated areas in 

the county. I have the Maumee River as my northern boundary, 

which flows into Lake Erie, so we are all very cognizant of that. 

Also, before the settlers came, it was also known as the Great 

Black Swamp. So we have a very unique ecosystem in my area. 

But one of the things, to be honest, when I was a county commissioner, your day was going to start off bad when the mail came and 

we got a letter from the EPA that started off Dear Commissioners. 

What that usually meant was one of our communities in our counties was being placed under orders. And when you are out in your 

20 

communities all the time, you really get to know it and you get to 

know what they can afford to do. 

Now, as a Member of Congress, I have all or part of 16 counties 

in northwest and north central Ohio, and, as I said, I am out in 

my district all the time. There is great consternation out there 

when these orders are received. Just to give you a couple points, 

in some cases it would actually be cheaper for us to actually buy 

the community than do the projects that these localities are being 

put under, and that is not a joke. Not too long ago, I was at one 

of my smaller villages, and when you have folks that are in these 

villages that are now senior citizens, they have very limited incomes, or folks that can’t move away because of their economic status and this is their home. But the Toledo Metropolitan Council of 

Governments has done a study for us not too long ago, and if you 

live in a large metropolitan area, some of these projects would cost 

around $2,000 per household. But in some of these areas, where 

they only have 300 and some people left in the entire village, it 

would be over $22,000. Literally, that is what I mean, it would be 

cheaper for us to buy them out. 

In other cases, cities that have intakes out into the different rivers in my area have situations where they are expected to put the 

water back into the river cleaner than they pulled it out. And my 

question always is how clean is it and how far down the river is 

it before it is commingled to be at the exact same level it was before the city had it come out of the intake. 

So one of the problems we run into, then, we have a lot of companies in my area and I have the largest manufacturing district in 

Ohio, the 15th largest in Congress, and we are hard hit with unemployment and trying to get people back to work. So we have companies out there now that are actually saying, you know, if these 

projects have to go through, we are just going to move out because 

their parent companies say we can’t have you there, we can’t afford 

to compete with somebody else with those high costs. 

So one of the things I would like to stress is I think that when 

these orders are being placed and when the rules are being made, 

I think they have to be cognizant of the fact of what is going on 

out there. And as was already mentioned by our Ranking Member 

and also by Mr. Boozman, we are pretty hard hit out there, and 

we have to really look at what we are doing. 

So I appreciate your being here and hear from your testimony 

today, and, Mr. Chairman, I appreciate the opportunity. Thank 

you. 

Mr. OBERSTAR. I thank the gentleman for those comments. I am 

particularly touched by his reference to the cost of cleanup shouldered by local government. We had intended in the Clean Water, 

while not in legislation, but as a matter of policy, that the early 

going would be some 70 percent of the funds would be directed toward the biggest waste streams in the Nation, and by the early 

1980s that would be reversed, that 60 percent of the funding would 

go to smaller communities, those under 50,000 population. That 

was at the point at which the Reagan Administration converted 

from a grant to a loan program and reduced the total size of the 

program. 

21 

In the stimulus this year we had $4.6 billion for wastewater treatment and an additional $100 million for drinking water systems. That was to go out by rankings of the States. I think we 

need—and with some initial problems due to the Buy America language, that funding is underway. We need to continue it and we 

need to continue that commitment to deliver on the commitment 

we made to small communities to help them with the costs of 

cleanup. In the end, it is a cost, but it is a shared cost that all 

America has an interest in clean water and all America has an interest in cleaning up. 

So I welcome the gentleman’s comments and welcome his participation. 

Mr. Hall. 

Mr. HALL. Thank you, Mr. Chairman, and thank you for holding 

this hearing. 

Administrator Jackson, thank you for being here. 

In my district also we have all kinds of water problems, a district 

that spans from the Delaware across the Hudson River, all the way 

to the Connecticut border, and have waterways that flow directly 

into Long Island Sound through Connecticut and others that flow 

into Delaware Bay and, of course, the Hudson flowing down 

through New York Harbor. 

We have, in Hopewell Junction, my home county in Dutchess, we 

have a trichloroethylene spill that has contaminated a plume of aquifer a mile and a half long and I believe three dozen families or 

so on bottled or trucked-in water because their wells are unsafe for 

them to drink, and they have vapor intrusion systems that are 

being provided by EPA and DEC. We have schools right now in my 

district where students with high blood pressure problems are 

being warned not to drink the water from the drinking fountains 

because of high sodium levels. We have every lake, virtually, in my 

district suffering from eutrophication from over-fertilization of nitrates and runoff from either lawn chemicals or from inadequate 

sewage treatment plants that are old and failing. 

My towns also can’t afford it, but the question they are asking 

me first is not—they do ask how we are going to pay for it, but the 

first thing they say is we need clean water for our children and 

ourselves and our future generations; and the cost will be borne 

somehow by a combination of Federal, State, and local funds, but 

we do need to figure out the most efficient way to do it, but especially we need to do it. 

So thank you so much for being here, and I yield back. 

Mr. OBERSTAR. I thank the gentleman. 

The gentleman from Maryland, Mr. Cummings. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. First of 

all, I want to associate myself with the comments of Mrs. 

Napolitano and I want to thank you, Mr. Chairman, for calling this 

hearing on the importance of reviving real enforcement of the 

Clean Water Act. 

The past eight years were an era of conscious neglect of environmental laws, and the data collected by both EPA and The New 

York Times bears that out. Staggering statistics have been recently 

released by each of these entities. As Administrator Lisa Jackson 

points out in her testimony, roughly one in four major facilities 

22 

subject to Clean Water Act enforcement was in substantial noncompliance. Possibly more disturbing was the conclusion reached 

by this Committee and others that the data accumulated by The 

New York Times was more comprehensive than the EPA’s own information. 

I am pleased to read of the new initiatives taking place at the 

EPA under the leadership of Ms. Jackson. She has made a commitment both to her employees at the EPA and to the American public 

that it is a new day at the EPA. Based upon her stellar reputation 

and her actions so far, I believe that her leadership will bring 

about real institutional reform, because it will take nothing short 

of that to rebuild the public’s trust in this agency. 

When, according to The New York Times, only 2.2 percent of the 

Clean Water Act violations led to enforcement actions, there is a 

natural skepticism as to whether this agency was truly committed 

to its mission. As I am sure the Chairman will agree, delegation 

of responsibility to the States is no excuse for dropping the ball. 

While the States had their failures, EPA’s unwillingness to exercise 

its own authority and to ensure enforcement at the State level was 

negligent disregard for the American people at best. This is our 

watch. 

As I mentioned, I am encouraged by Ms. Jackson’s bold actions 

in her short tenure at the EPA. I look forward to her testimony, 

as well as the testimony of all of our witnesses, and hope that this 

yields a productive discussion about this critical issue. 

With that, Mr. Chairman, I yield back. 

Mr. OBERSTAR. I thank the gentleman. 

Mr. Arcuri. 

Mr. ARCURI. Thank you, Mr. Chairman. Thank you for holding 

this hearing. 

I would like to thank Administrator Jackson and the other witnesses for being here. 

The enactment of the Clean Water Act was a seminal event in 

our Nation’s history and the preservation of its natural beauty. 

Being from New York, I consider myself exceptionally fortunate; we 

not only have the benefits of the Great Lakes, being on the Great 

Lakes, but also abundant water. It is a wonderful natural resource 

to have and it certainly makes the quality of life substantially 

higher. 

But I am very concerned with the fact that the Energy Policy Act 

of 2005 exempted some of the exploration activities for natural gas 

from the Clean Water Act. We are very fortunate in New York, we 

are on the Marcellus shale deposit and the Utica shale deposit, 

which means that we have access to a wonderful natural resource, 

that is, natural gas, and clearly it is important that we do all we 

can to bring that natural gas and use it to develop energy independence. But we shouldn’t do it at the expense of our greatest natural resource, which is our water. 

I have a concern because while the State of New York takes 

strong measures to regulate and to enforce the same type of EPA 

laws, other States don’t necessarily have to do that. Obviously, just 

to give you an example, the northernmost point of Chesapeake Bay 

begins in my district, in the Village of Cooperstown, and that runs 

right through the Marcellus shale deposits. So, obviously, it is inVerDate Aug 31 2005 14:33 Mar 29, 2010 Jkt 000000 PO 00000 Frm 00034 Fmt 6602 Sfmt 6602 P:\DOCS\52881 JASON
23 

cumbent upon New York and it is important that New York takes 

steps to make sure that the water that runs through there is clean 

so that the Chesapeake Bay doesn’t experience the pollution as a 

result of what we call hydraulic fracking the natural gas development. So I think it is very important that we take measures to ensure that the Energy Policy Act of 2005 is changed and amended 

so that the Clean Water Act also applies to that. 

There is no question that achieving energy independence is important, but it should not come at the cost of protecting our greatest natural resource, which is our water. 

Thank you, Mr. Chairman, again, for holding this hearing, and 

I yield back the balance of my time. 

Mr. OBERSTAR. Thank you very much. 

We will now proceed with our very patient Administrator. You 

have heard a wide range of views from Members and will hear a 

lot more after your testimony is delivered. Thank you very much 

for participating today and for your vigorous start with EPA. 

TESTIMONY OF THE HONORABLE LISA P. JACKSON, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION 

AGENCY 

Ms. JACKSON. Thanks, Mr. Chairman. I will try to be brief, but 

I ask for your patience too, because there are a number of things 

I want to make sure I present to the Members of the Committee. 

Thank you to the Committee for having me here today. I am delighted to be here to discuss the state of our Nation’s waters. I 

would like to focus my remarks on our Nation’s water quality and 

the challenges we face to improve it, along with EPA’s implementation of the Clean Water Act and the steps we are taking to improve 

Clean Water Act compliance and strengthen our clean water enforcement program. 

We certainly all agree, and I heard this morning, that having 

clean and safe water in our communities is a right for all Americans. We also know that clean water is essential to our health, our 

environment, and our economy. As we commemorate the 37th anniversary of the Clean Water Act, I want to begin by thanking you, 

Mr. Chairman, for your steadfast leadership and constant concern 

for the issue of clean water. I do not believe it is an understatement to say that we would not be where we are today were it not 

for your leadership and many Members of this Committee, and I 

thank you for that. 

But we must also reflect on the progress that has been made 

over the past 37 years and also focus on the enormous challenges 

ahead. To put it in a phrase, Mr. Chairman, we have a long way 

to go. 

The Clean Water Act was enacted to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters, 

and EPA is the agency that has primary responsibility to achieve 

these goals. As such, it is EPA’s mandate to use its resources effectively, including vigorously enforcing the rule of law to achieve this 

result. 

There are significant water quality problems facing too many 

communities. There are many diffuse pollution sources that are not 

regulated by the Clean Water Act. There is inadequate information 

24 

about some sources, which can limit the ability to identify serious 

problems quickly and the ability to take prompt actions to correct 

them. And adding to our challenges, recent Supreme Court decisions have increased the difficulty of determining which water bodies are covered by the Clean Water Act in many parts of the Country. 

The main tool that EPA has to achieve positive water quality results is the National Pollutant Discharge Elimination System, or 

the NPDES program. EPA established this program soon after the 

passage of the Clean Water Act, and its implementation by EPA 

and authorized States has resulted in significant water quality improvements throughout the Country. 

Under the Clean Water Act adopted in 1972, the universe to be 

covered by the NPDES permit program was estimated to be 

100,000 point sources. Today, nearly 1 million point sources are 

covered by the NPDES program. This increase has significantly affected the ability of EPA and the States to administer and enforce 

the NPDES program. We are falling short of this Administration’s 

expectations for the effectiveness of our clean water enforcement 

programs. Simply put, Mr. Chairman, the time is long overdue for 

EPA to reexamine its approach to Clean Water Act NPDES enforcement to be better equipped to address the water pollution 

challenges of this century. 

Data available to EPA shows that, in many parts of the Country, 

the level of significant noncompliance with permitting requirements is unacceptably high and the level of enforcement activity is 

unacceptably low. For example, one of every four of the largest 

Clean Water Act dischargers had significant violations in 2008. 

Many of these violations were serious effluent violations or failure 

to comply with existing enforcement orders. 

The Government’s enforcement response to the violations is uneven across the Country. For example, a violation in one State results in the assessment of mandatory minimum penalties, while in 

another State no enforcement action is taken for the exact same 

violation. This situation creates a competitive disadvantage for 

States that are enforcing the law, and we need to change this. 

Strong and fair compliance and enforcement across the Country 

is vital to establishing a level playing field for industrial facilities, 

preventing some regions from attempting to achieve an economic 

advantage over others. Most importantly, clean water is not a luxury. Rather, we need to make sure that all citizens, regardless of 

the State that they live in, should be able to drink safe water and 

swim and play in clean lakes, rivers, and bays. 

We need to address these key problems, and that is why I am 

happy today to announce EPA’s new Clean Water Act enforcement 

plan. 

EPA’s Enforcement Office, led by Cynthia Giles, has decided to 

act on three crucial steps to strengthen Federal and State Clean 

Water Act enforcement to better protect water quality. 

First, we need to develop more innovative approaches to target 

our enforcement to the most serious violations and the most significant sources. We need to ensure that the million permits out there 

we find them to be protective and that appropriate civil and criminal enforcement for factories and large wastewater treatment 

25 

plants that unlawfully discharge pollutants to our waterways exist. 

We need to reshape our enforcement program to be more effective 

in tackling violations from the many dispersed sources that continue to be serious threats to our waters and a major reason many 

of our waters don’t meet standards. Some of the biggest threats are 

posed by concentrated animal feeding operations and by contaminated stormwater flows from industrial facilities, construction sites, 

and urban streets that end up in our waters. 

Second, we need to strengthen our oversight of State permitting 

and enforcement programs. Many States have strong water quality 

protection programs and take enforcement to ensure compliance, 

but we have seen great variability amongst the States in enforcement performance. It is EPA’s job to clearly articulate the acceptable bar for State clean water programs and consistently hold 

States accountable. In situations where States are not issuing protective permits or taking enforcement, EPA needs to act to 

strengthen programs and pursue Federal enforcement as necessary. 

Third, we are and will continue to take immediate steps to improve transparency and accountability. We have a responsibility to 

tell it like it is to the American public. 

We have already published the data and information that EPA 

has on Clean Water Act compliance and enforcement across the 

Country on our Web site. We will continue this practice as new information becomes available. We are also working to accelerate the 

development of 21st century information technology tools to help us 

gather information more efficiently and make it easier for the public to access that information. 

For example, I am directing my staff to quickly develop a proposed rule requiring electronic reporting from regulated facilities to 

replace the current paper-based system. Electronic reporting could 

save regulated facilities, EPA, and the States millions of dollars 

each year. At the same time, providing that information to the public shines a spotlight on facility performance. 

We believe that making information on environmental discharges 

available to the public will increase the pressure on regulated facilities to self-police and reduce their pollution, just as we have 

seen with the Toxics Release Inventory. 

EPA plans to work closely with States to implement these actions and make long-term improvements in our Clean Water Act 

enforcement and compliance plan. 

I could quickly highlight some actions we are taking now to focus 

our enforcement actions on those actions that pose a serious threat 

to water quality. 

We are strengthening our efforts to enforce existing rules from 

limiting pollution from concentrated animal feeding operations. 

Where there are facilities or clusters of facilities with large numbers of animals that are discharging without a permit or in violation of their permits, they can cause significant pollution problems 

and concerns to communities. It is difficult to know where these facilities are when they do not have to apply for permits; however, 

we are working to develop innovative strategies that will identify 

the facilities that are violating requirements and present the most 

26 

significant threats, and we will ensure that appropriate enforcement action is taken in these situations. 

Mr. Chairman, enforcement is one tool that we can use to address water quality problems, but long experience has shown that 

effective enforcement is essential to the integrity of our Clean 

Water Act protections and enforcement makes a real difference in 

our ability to deliver the water quality the American public expects. 

EPA is committed to building the Nation’s confidence that these 

resources will be protected. 

We greatly appreciate the leadership of this Committee and we 

look forward to coordinating with the Chairman and the entire 

Committee as we work to achieve these important goals. Thank 

you. 

Mr. OBERSTAR. Thank you very much, Madam Administrator. 

Your testimony is refreshing; it shows a firm commitment, a determination to move ahead, and you have already laid that on the 

table. You got it going in the right direction. 

Just a comment before I go to Members for our overall sort of 

structure, and that is Section 309 of the Clean Water Act sets the 

requirements for calculation of a civil penalty for violation of the 

permitting requirements. It establishes as criteria seriousness of 

the violation, the history of violations, and the economic benefit resulting from the violation, that is, the economic benefit that would 

result if the violation is lifted, cured. The law is clear that economic benefit from violation of the Clean Water Act should be recaptured in the potential enforcement not only to reduce the incentive to pollute, but to promote deterrents. 

So I want to say that I want Members to keep that in mind as 

they go forward, and I am going to now recognize Members who did 

not make an opening statement, in the order in which they serve 

on the Committee. So we will begin with Mr. Kagen. 

Mr. KAGEN. Thank you, Mr. Chairman. It is an honor to follow 

you at any point in time. Because of your great efforts, this Committee is going to move forward a bill that really will address its 

title, the Clean Water Act. 

Administrator Jackson, thank you for being here this morning. 

Thank you for the work you are about to do. I don’t envy you in 

your position. I came to Congress in 2006 as a doctor; I thought all 

I had to do was fix health care. Then the roof caved in on the economy and everything else that we are doing. So I understand what 

it is like to have a large mess to clean up. 

You mentioned in your opening remarks about the importance of 

enforcement, the importance of oversight and providing accountability and transparency in everything that you intend to be doing, 

and you hadn’t focused on prevention. We are going to be hearing 

testimony after yours of one of my constituents from northeast Wisconsin, Mrs. Treml, about her situation that her family and her 

neighbors and many people in the region experience when farming 

and agricultural activities take place over an escarpment, a land 

mass that allows nutrient material and manure to seep directly 

into the drinking water. 

But what are you doing in terms of prevention? What is your orientation? 

27 

Ms. JACKSON. Thank you, Congressman. The entire NPDES 

structure, the idea of requiring a permit from those who intend to 

discharge into waters of the United States was intended to say up 

front that we know that any amount of pollution acts as a detriment to water quality. There are some times when we have to 

allow some amount of pollution; that is what the permits are, but 

also gives us a framework to come back later to find out if people 

are abiding by it. 

The particular case that you reference—and I have read the testimony—is that of an issue where we do not have jurisdiction, per 

se. The Clean Water Act does not cover permitting or prevention 

for groundwater seepage of nutrients. In this case, I understand it 

actually wasn’t through groundwater, it sort of ran over a snow 

pack or land and into a well. 

Mr. KAGEN. So it is true, then, that in the existing legislation 

and laws there is no legislative language for you to follow that 

would allow for your jurisdiction over the runoff of agricultural 

wastes? 

Ms. JACKSON. The runoff, yes. If it ends up into surface water 

and it is jurisdictional surface water, there is a potential for permitting and enforcement in those cases, and we are committing, as 

I said in my testimony, to vigorous enforcement there. The particular case in Ms. Treml’s case was one in which there was no surface water nexus, so I am not sure that there would have—— 

Mr. KAGEN. Is it also true that entities in agriculture and other 

businesses can self-regulate themselves and self-determine what 

they are going to allow to run off their properties or into our waterways? 

Ms. JACKSON. Well, the current CAFO rules say that a concentrated animal feeding operation should identify whether it believes it will discharge, and then, and only then, will it be required 

to get a permit. So for inadvertent discharges or discharges that 

end up entering surface water, we cannot say, right now, to a facility you are required to have this permit, they must self-identify. 

Mr. KAGEN. Well, it is an obvious thing to point out, but I will 

point it out, that no matter how perfect we are in crafting legislation to help prevent runoffs, to help prevent the pollution of our 

waterways, it really does come down to human behavior and to the 

judgment of people who are operating their businesses, whether it 

is an agricultural industry or otherwise, to not just interpret the 

law, but to understand what would be good for their environment 

and also for their neighbors. 

Along those lines, do you feel that the local Department of Natural Resources in States like Wisconsin are adequately staffed? 

Ms. JACKSON. I believe, sir, that resources are a real concern. As 

we have learned more about the threats to our drinking water and 

our surface water, a great deal of the program really does fall not 

only on State governments, but oftentimes—I know from my experience in New Jersey—to local jurisdictions—county, health departments; very important to ensuring safe drinking water. And I know 

and agree with comments made earlier that these are tough times 

and that resources are a real concern. 

Mr. KAGEN. Thank you for your comments. As someone who represents some of the greatest measurement of coastline, not just 

28 

Lake Michigan, but many of the lakes and rivers in northeast Wisconsin, it is a pleasure to look forward to working with you and 

making certain that we can prevent additional problems. It is a lot 

easier to prevent a problem than to clean it up after it has already 

taken up, and it is also more cost-effective. 

And I yield back my four seconds. 

Mr. OBERSTAR. The gentleman from Kansas, Mr. Moran. 

Mr. MORAN. Mr. Chairman, thank you. I have no questions, but 

I would like to seek consent to offer a statement of the Kansas 

Farm Bureau regarding the Clean Water Act letter dated October 

the 14th from its President, Steve Baccus. 

Mr. OBERSTAR. Without objection, the letter will be included in 

the record. 

Mr. MORAN. Thank you, Mr. Chairman. 

[The information follows:] 

29 


Insert offset folio 19 here 52881.019
30 


Insert offset folio 20 here 52881.020
31 

Mr. OBERSTAR. Mr. Duncan. 

Mr. DUNCAN. Well, thank you very much, Mr. Chairman. I just 

have a couple questions. 

Administrator Jackson, have you considered and do you support 

or would you support setting up a clean water trust fund and 

wastewater trust fund similar to the aviation and highway trust 

funds? Have you ever thought about that? 

Ms. JACKSON. The Administration has no position on any additional trust funds for water quality. I would point out that there 

has been a significant influx of money in the revolving funds right 

now for infrastructure investments in communities, as the Chairman mentioned, $6 billion for wastewater and drinking water infrastructure investments, against, admittedly, a need that is much, 

much greater than that. 

Mr. DUNCAN. As I was going through your testimony, it was very 

brief, and in that brief testimony I counted up there were 26 times 

where you used the word enforcement or enforcing. Maybe you are 

trying to send a message that you intend to get very tough, but 

what I am wondering about, will the EPA try to help communities, 

first, to comply, or are you just going to come down on them without first trying to work with them to help them come into compliance? 

Ms. JACKSON. I do, sir, believe that enforcement plays a very important role. Research shows that enforcement, that the belief on 

the part of those who hold permits, that they mean something, that 

there is a penalty if they are violated is very important to changing 

behavior, it is one of the ways to do it. 

In the case of communities, I think EPA has a strong and long 

history of trying to work hard to come up with meaningful time 

lines to get into compliance, so that when you are talking about 

municipal impacts, when you are talking about impacts on ratepayers, to try to spread that out over a period of time to be in compliance. 

When it comes to industrial facilities, especially significant noncompliance, remember, this is noncompliance that often shows a 

pattern, that in order to be in significant noncompliance like 25 

percent of these facilities are, it is oftentimes a severe problem and 

it could be one that has gone on over time. So the ideal of enforcement is that the punishment, if you will, should sort of fit the nature of the crime. If it is a severe problem, we should have some 

deterrents and people should know that that is not going to be tolerated. 

Mr. DUNCAN. I noticed in our briefing paper that all but four 

States have assumed the regulatory authority for water pollution 

programs. Do you intend to work primarily through the States 

first, since 46 States have that primary authority, or do you see 

problems with that? 

Ms. JACKSON. No, sir. I think we absolutely must work with the 

States. Forty-six out of 50 have jurisdiction; they are delegated to 

run these programs and they are delegated essentially to stand in 

EPA’s footsteps and permit and enforce under the Clean Water Act. 

As I said in my testimony, I think EPA’s role, 37 years after the 

Act was passed, is to act as a fair arbiter, look across the Country 

and ensure that a violation in one State is being handled similarly 

32 

to another; otherwise, there is an unfair playing field for business 

and an unfair playing field, frankly, for clean water. 

Mr. DUNCAN. Do you think that the States are doing an adequate 

or good or excellent job on this in those duties at this point? 

Ms. JACKSON. I think that it varies across the Country. There are 

States who run very good programs, and it also depends on the program. I think almost every—I would hesitate to guess, this is an 

educated guess, that every State is balancing its resources as best 

it can. With the explosion in the universe of permitted facilities 

from 100,000 expected to over a million, there is some juggling, and 

I think it is EPA’s job to help States figure out where enforcement 

should be targeted to get clean water. Not to get huge penalties, 

to get cleaner water. Where can we have a big impact on water 

quality? And that is where we should use limited resources. 

Mr. DUNCAN. What you have now, you have two-thirds of the 

counties in the U.S. are losing population. But then you have real 

fast growth in certain other areas, so the circumstances and the 

needs and the resources vary widely across the Country. So it 

seems to me that it is going to be pretty difficult to come up with 

one size fits all solutions when you have such a wide variation in 

the population movement in the Country. 

Thank you very much, Mr. Chairman. 

Mr. OBERSTAR. I want to acknowledge the gentleman’s work as 

Chair of the Water Resources Subcommittee for six years, holding 

hearings frequently on the issue that he raised of a funding mechanism, including a trust fund, including other ideas such as infrastructure bank. He has been very persistent and very participatory 

in discussions of this issue, and this Committee, in the last Congress, under Ms. Johnson’s leadership, and again in this Congress, 

continued searching for an acceptable mechanism to create a trust 

fund. We look forward to any ideas the Administration may have 

on this issue, but the vexing problem is a revenue source, revenue 

stream, and we have to work with Ways and Means Committee on 

that. 

We have already passed our State revolving loan fund, the reauthorization, passed it in the 110th Congress. The Senate didn’t act 

on it under threat of veto from the previous administration, and 

now the Senate seems to be impaled on its own procedural problems, so we look forward to them hopefully doing something—if we 

were a unicameral legislature, I tell you we would have a whole lot 

of stuff in law. 

Ms. Richardson. 

Ms. RICHARDSON. Thank you, Mr. Chairman. Out of respect to 

my colleagues, I am only going to ask one of my questions, because 

I know they would like to ask before we break for votes. 

Ms. Jackson, you recently came to my district on October 3rd. 

Unfortunately, I wasn’t aware you were coming; otherwise, I would 

have shown you a few things and would have liked to have chatted 

with you about my question. I notice in your testimony you make 

reference to factories, large wastewater treatment plants, animal 

feeding, industrial facilities, construction sites, urban streets into 

our waters, but you failed to say anything about beaches and flood 

channels that are going into our water that is serious pollutants 

and many problems in my community. 

33 

In 2007, the beach closings and advisories nationwide hit their 

second highest level in 18 years. The Natural Resources Defense 

Council has been tracking them since that time, and in Los Angeles County alone there were over 1,696 beach closings and advisory 

days due to elevated bacteria levels, sewage spills, and stormwater 

runoff. 

What do you intend upon doing about this and what additional 

resources do you think the EPA can bring to bear to focus enforcement in this area? 

As I said, I was a little disappointed that in your testimony there 

was absolutely no reference to these areas, which for me, coastal 

communities that many of us represent, is a very serious problem. 

Ms. JACKSON. Thank you. I do apologize for the oversight, and 

I will get back out and I would love to see you in your district, Ms. 

Richardson. Let me say, coming from New Jersey, that perhaps it 

was an era of taking for granted something, which is that, yes, our 

coastal areas tend to be the final outfall. You know, we spend so 

much time trying to prevent any major contamination entering waterways, but EPA has had, for years, a strong emphasis on wet 

weather flows on combined sewer overflows, municipal sanitary 

sewer systems, trying to get old facilities under contract to try to 

ensure that, whether it be floatables or pathogen contamination, 

that we reduce and, over time, see fewer and fewer beach closures 

and other water quality incidents further upstream of the beaches. 

So it is an oversight not to mention that. Beaches ultimately see 

quite clearly the impacts of water quality degradation. 

All of the things that I mentioned in my testimony would have 

the kinds of impacts that I think you would hope for, specifically 

the emphasis on looking for enforcement on the places that have 

the most potential to impact water quality and also to impact 

recreation or places like beaches, where people congregate in order 

to specifically enjoy water quality and enjoy the resource of the 

water. 

I believe that the emphasis on the major permittees is important, 

but the non-point source pollution, the kinds you mentioned, especially stormwater discharge, whether it be from agricultural operations or urban streets, is a huge issue that is quite visible along 

our beaches as well. So as we look to step up enforcement to target 

our enforcement, I commit that we will make sure that one of the 

things we look at are impacts on outfalls that can potentially impact beach water quality and beach closure issues as well. 

Ms. RICHARDSON. Thank you very much. 

Ms. JACKSON. Thank you. 

Mr. OBERSTAR. Ms. Schmidt, before you leave, would you like 

to—we have plenty of time to vote. 

Ms. SCHMIDT. I am fine. 

Mr. OBERSTAR. All right. 

Ms. Fallin. 

Ms. FALLIN. Ms. Jackson, I appreciate your coming today. Thank 

you for being here. Do you feel like States are doing all that they 

need to be doing to make sure that we have clean water and enforcing the rules and regulations that we have right now? 

Ms. JACKSON. I think State performance varies. Let me also 

point out that the four States where EPA implements the Clean 

34 

Water Act, our performance varies, and I think that one of the 

things we need to be able to do is hold up an honest mirror, give 

information, as much accurate information as we can about State 

performance, and allow States certainly to tell their story, but also 

as an agency sort of hold States to a steady bar. 

Ms. FALLIN. I understand the need to have uniform consistency 

around our Nation as it comes to the States and the different divisions that they have for enforcement regulations, but I have been 

hearing, back in my home State of Oklahoma, from business communities that they have seen a big difference in the administration 

of the EPA since the new Administration took over, and have just 

said that they felt like there is a heavy hand on business right now 

during this economic recession. 

I guess my only comment would be that as we continue to make 

sure that we do keep our environment clean—I am all for keeping 

clean water and our environment clean and being responsible in 

the business sector—that we also make sure that we work with the 

States, that we work with the communities as we are dealing with 

the rules and regulations and enforcement to give them a chance 

to try to do the right thing. 

And I heard your comments that you want to make sure that 

they understand there are laws, rules, and regulations, and they 

have to comply with that, but I have heard from several businesses 

in my community that they are feeling a lot of pressure right now 

during a tough time, and they want to comply, they want to do the 

right thing, but they want to have a chance to do the right thing. 

That is just my comment. 

Ms. JACKSON. And I really appreciate it. It gives me a chance to 

make a couple of points. First, about Oklahoma, good inspection 

coverage of facilities, accurate reporting of noncompliance, and high 

rate of timely enforcement. So I think one of the things that having 

a level playing field does is those States who have sort of been on 

the job, I would hope, that facilities wouldn’t see a huge difference 

as we say we are going to raise the bar, because they have already 

sort of been working to that standard. 

So I am troubled by what I would say to those businesses is that 

the idea here is to continue to realize that this is a program that 

works through the States, for the most part, that we need to help 

States with technical assistance in those cases where they need it, 

but we also need to put the data out there and challenge them and, 

in some cases, be ready to step in if we are not met with agreement. But I wouldn’t think that would be a case back home. 

Ms. FALLIN. Okay. 

Ms. JACKSON. Thank you. 

Ms. FALLIN. Well, I appreciate your comments, and I guess my 

comment is, especially during these challenging times, just to enforce the law, but yet work with the States and work with the local 

authorities, especially the business community. Thank you. 

Ms. JACKSON. Thank you. 

Mr. OBERSTAR. I thank the gentlewoman. We have now four minutes remaining on this vote. We will recess and return hopefully 

within 20 minutes. I know the Administrator has a noon departure 

obligation, so we will try to honor that. 

The Committee stands in recess. 

35 

[Recess.] 

Mr. OBERSTAR. The Committee on Transportation and Infrastructure will resume its sitting. When we left, the rotation goes to the 

Democratic side and the Chair recognizes Mr. Teague. 

Mr. TEAGUE. Thank you, Mr. Chairman, for hosting this meeting 

and for allowing me the opportunity to ask some questions. 

Ever since being elected to Congress, there is an issue that constituents of mine in New Mexico have brought up time and time 

again. What I have found most remarkable about this issue is that 

it is not just one organization or one industry that is talking about 

it. I hear from a wide range of New Mexicans representing diverse 

constituencies. It could be a dairy farmer or cattle grower, an oil 

and gas producer, or a developer, or someone who builds our roads, 

or local government official, but they have a central concern. The 

issue they are concerned with is the extent of Federal authority 

under the Clean Water Act. 

Many of my constituents fear that the effective State and local 

regulation will be replaced by vague, all-encompassing Federal 

term ‘‘waters of the United States.’’ They fear—and I share this 

concern—that the legislation expanding Federal authority under 

the Clean Water Act would result in unneeded Federal jurisdiction 

over the work that many of our businesses and agriculture producers do on a daily basis. 

Keeping our water clean is one of our most important responsibilities because, where I come from, there is not much water and 

we need to keep what we have clean. But the regulation needs to 

be smart and honor the effective roles that States and local governments have in managing our most precious resource. 

I guess one of the questions I would like to ask is assessing the 

jurisdiction of the Clean Water Act, while it may be difficult, but 

the deletion of the term ‘‘navigable’’ from the definition of waters 

of the United States, as proposed by the Clean Water Restoration 

Act, is a blunt instrument that could lead to an unreasonable expansion of the legislation to waters it was never intended to apply 

to. Wouldn’t an alternative approach, one that perhaps leaves the 

definition alone but lists the precise type of waters the Clean 

Water Act would apply to, resolve all of EPA’s jurisdictional problems without creating the uncertainty deletion of the term ‘‘navigable’’ would cause? 

Ms. JACKSON. Thank you. I appreciate your recognition of the jurisdictional issues associated with implementation of the Clean 

Water Act right now, and I also appreciate your suggestion and, 

with the Chairman, look forward to continuing dialogue on this 

issue, because I know jurisdictional issues are something that he 

has indicated and the Administration has joined him in believing 

can only be fixed by Congress, and must be fixed. We are actually 

calling on your help. 

With respect to your specific question, I would enjoy a conversation on it as well. There are certainly many different ways to do 

it, but what I can tell you is that the scope of the Supreme Court 

decisions have made it such that the Federal agencies, and State 

agencies as well, face significant challenges right now in implementing, permitting, and enforcement programs because so much 

time and effort is spent simply trying to determine whether or not 

36 

jurisdiction can be asserted. So recognition, I believe that we need 

to fix this, is a very, very important thing. 

Mr. TEAGUE. You know, one of the questions is some things—this 

was partially asked and answered earlier, but it has to do with the 

jurisdiction through the Clean Water Restoration Act. The New 

York Times ran an article, and in the article it said that there are 

not problems with the Act’s jurisdictions but, rather, the permit 

violations that were enforced. So, in other words, if jurisdiction was 

not taken and a permit had not been issued, States would never 

have found the violation in the first place, and I was wondering 

how you see is there association between a supposed lack of enforcement and the need for more jurisdiction? 

Ms. JACKSON. Enforcement, Mr. Teague, is made harder when 

you are not sure whether you have jurisdiction. So we have actually seen cases that are lost over—water quality cases that are lost 

over the question of whether or not jurisdiction had or could be established because, right now, the Supreme Court cases, and now, 

increasingly, circuit court cases behind the Supreme Court cases, 

make it so that nobody is quite sure what the rules of the road are. 

So there certainly is an impact. 

Where I thought you were going on your question, as well, is that 

we know that about a third of the U.S. population gets some or all 

of their drinking water from intermittent, ephemeral, or headwater 

streams, many of which are the water bodies where jurisdiction is 

most in question right now. 

Mr. TEAGUE. Okay. Thank you for answering those questions. 

Ms. JACKSON. Thank you. 

Mr. OBERSTAR. In further response to the question the gentleman 

raised about the Supreme Court decisions, I want to state once 

again the Act of 1972, the Clean Water Act, to provide for water 

pollution control activities, public health service of the Federal Security Agency and the Federal Works Agency and for other purposes, that goes back to the origins of the Act in 1956. 

But in the 1972 Act, Section 101, declaration of goals and policy, 

the objective of this Act—and you stated it in your opening remarks—is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. No distinction about it, the 

Nation’s waters; and that is how the Act has been administered for 

all these many years. 

Now, Mr. LoBiondo. 

Mr. LOBIONDO. Thank you, Mr. Chairman, very much. 

Madam Administrator, welcome. It is good to see you. 

Madam Administrator, as you are aware, the EPA was recently 

forced by the courts to develop a permit under the Clean Water 

Act, the NPDES system, to regulate the discharge of ballast water 

and other incidental discharges like bilge water and deck wash 

from vessels. While we all agree that the discharges should be subject to regulation, I am very concerned and many of the people that 

I represent are very concerned that under this system the States 

are adding additional and often contradictory requirements on vessel operators that impair the flow of commerce and undermine the 

economic viability of our maritime sector. 

An example of this would be, in Michigan, vessel operators are 

required to treat their ballast water with chemicals. But if you 

37 

travel across the lake, you cannot discharge any ballast treated 

with chemicals in Wisconsin because of Wisconsin’s regulations. 

And now the Coast Guard is coming out with a separate standard 

for ballast water discharge and your staff has informed us that it 

will be impossible for you to ensure uniformity between the EPA 

standard, the Coast Guard standard, and standards implemented 

by the various States. 

So, in a few months we are going to have the EPA, the United 

States Coast Guard, and what looks like to be about 30 States with 

different standards for discharge of ballast water. It is an impossible situation for our folks to sort through when they are transporting along our coast, the Great Lakes, and the inland rivers. 

So, Chairman Oberstar, I want to particularly thank you for 

working with me and those of us who find this issue critical—and 

many of them are involved in the fishing industry—and for your 

commitment to solve the problem before the move the Coast Guard 

bill forward. That is a tremendous help, Mr. Chairman, and I know 

this is a daunting task. 

But, Madam Administrator, my question to you is how would you 

recommend we best regulate ballast water and other incidental discharges to avoid the problems we have now? 

Ms. JACKSON. Thanks, Congressman, and thanks for your leadership on this and so many clean water issues in New Jersey and for 

the Country as a whole. 

I believe that you, in your question, lay the foundation for an answer we must come up with. States feel very strongly that because 

of a lack of regulation for such a long period of time, they were 

watching invasive species—which is what these ballast water regulations are aimed at—becoming increasing problems. Places like 

the Great Lakes, California, and other great water systems see 

invasive species as a huge threat, so there has been a response. 

But you point out the countervailing view, which is, nationally, 

it is almost impossible for any shipper now to know what the rules 

of the water are as they move through national commerce; and 

international adds an even greater level of complexity because 

much of the Coast Guard’s work, as I understand it, is also dealing 

with the international community on ballast water standards as 

well. 

I am happy to work on this issue with you further and with the 

Committee. I believe it is important to get all the players in a room 

to try to come up with a set of rules of the road for the Country 

as a whole that we can work on together. 

Mr. OBERSTAR. Would the gentleman yield? 

Mr. LOBIONDO. Certainly. 

Mr. OBERSTAR. If I might supplement the gentleman’s question 

with an approach we discussed in meetings with States, authorities 

and shippers, and with EPA as a possibility of, rather than amending the Clean Water Act on the issue of priority or preemption, to 

engage the States in a compact in which they would agree to abide 

by a single national standard and engage EPA in the shaping of 

that compact. That could work for both the Great Lakes and the 

east and west coast States. It would still be within the ambit of the 

Clean Water Act. We would not have to deal with the preemption 

issue and we would achieve the goal. 

38 

Have I stated it right, Mr. LoBiondo? 

Mr. LOBIONDO. Yes, sir. 

Mr. OBERSTAR. What do you think about that? Give it some 

thought? 

Ms. JACKSON. Yes, I am happy to give it thought, Mr. Chairman. 

I think it is an intriguing idea and I think it, again, highlights the 

importance of having all the folks at the table who have the ability 

to regulate here agree on the need to come up with a set of rules 

on the road that allow business to operate, quite frankly, to bring 

us the products we need and export the products that we want to 

sell, but also recognize that invasive species are increasingly a 

huge threat and a huge concern, and it is hard to put that genie 

back in the bottle. But I think it is an intriguing idea and I would 

be happy to work with you on it. 

Mr. LOBIONDO. I think it would be great, although it would take 

a whole bag of pixie dust to get all the States to agree on this. I 

think a system like we deal with with the sewage from vessels, 

where we can get together might be the one, but you can see the 

dilemma. And I want to make it clear that my vessel operators, 

fishing boats, and otherwise, it is not the regulations they are 

upset with. You can set the standard wherever you want to set it, 

but they want that to be the standard so they know that, when 

they are moving from port to port, they are not going to be put out 

of business and then have a whole different set of regulations to 

work with; and I don’t think that is unreasonable. 

So this genie is out of the bottle here. We are going to have to 

somehow either figure out how to get it in the bottle or come up 

with something else. 

Mr. Chairman, I have all the confidence in the world that your 

leadership abilities will get us to that point. 

Mr. OBERSTAR. I am not sure about that bag of pixie dust, 

though. 

Mr. LOBIONDO. Okay. Thank you. 

Mr. OBERSTAR. Maybe if we get them all in one room, we can 

reason together and achieve some good. 

Mr. Rahall? 

Mr. RAHALL. Thank you, Mr. Chairman. 

Administrator Jackson, I would like to ask you, just for the 

record, so we can be very clear, whether you believe that clarity 

and certainty is the goal of the EPA in the reviewing of coal mining 

permits. There are concerns that EPA is not providing clear cut directions, that coal operators are not being told what requirements 

with which they need to comply. There is the fear that there are 

no clear rules of the game by which to seek mining permits. 

Would you care to comment on those concerns and frustrations 

that are out there? 

Ms. JACKSON. Yes, thank you, Congressman. I certainly have 

heard them and I am happy to address them. Yes, I absolutely believe that the end of the road should be clarity and certainty in the 

regulations that EPA is imposing through the Clean Water Act. 

You highlighted in your opening remarks the interplay between 

SMCRA and the Clean Water Act, and it is sometimes rocky as 

well. 

39 

On individual permits, on the permits that are currently being 

reviewed, those permits have been in litigation for literally years 

and years, and that is a normal outcome of what happens when 

there isn’t clarity in regulation up front and when all the regulators who may have a stake and an issue are not consulted up 

front on that issue. So you get sort of this step-wise process where 

people apply for applications and it seems endless, and litigation 

results as well. So I believe that clarity is something that EPA 

owes the regulated community and the American public in its implementation of the Clean Water Act. 

Mr. RAHALL. As you are aware, some of the more ardent and 

vocal opponents to what EPA is doing claim that you want to end 

all coal mining. Again, I just wanted to give you a chance for the 

record to clarify that. 

Ms. JACKSON. Yes, I am happy to state for the record and say 

unequivocally that neither EPA nor I personally have any desire to 

end coal mining, have any hidden agenda, any agenda whatsoever 

that has to do with coal mining as an industry. I believe that coal 

can be mined safely and cleanly; I believe that it can be done in 

a way that minimizes impacts to water quality; and I believe it is 

EPA’s role and responsibility and duty under the Clean Water Act 

to speak to those issues and only those issues. 

Mr. RAHALL. Thank you. I appreciate the opportunity to meet 

with you prior to this hearing and prior to the questioning period, 

and look forward to meeting with you more in the future. 

Ms. JACKSON. Absolutely, sir. 

Mr. RAHALL. Thank you. 

Ms. JACKSON. Thank you. 

Mr. OBERSTAR. Continuing those who had not—Mr. Young— 

made an opening statement. 

Mr. YOUNG. Thank you, Mr. Chairman. I am sorry I am a little 

bit late. 

In this legislation we are talking about water. Where does the 

EPA stand and the Administration stand on the constitutionality 

of navigable waters, and who has authority over operating those 

waters? 

Ms. JACKSON. The Administration, in a letter that was signed by 

the Council on Environmental Quality, myself, USDA, Department 

of the Interior, and the U.S. Army Corps of Engineers, put forth 

principles about the need to address the jurisdictional uncertainty 

around what is and isn’t a water of the United States. The letter 

I think best outlines the Administration’s position. 

The first principle essentially says that waters need to be looked 

at broadly; that we need to look at jurisdiction broadly over the waters of the United States. I believe it is the second principle that 

says it should be a clear test, it should not be a test that requires, 

as it does now, almost half of our staff time at the Federal level 

just trying to determine jurisdiction. We need to be able to get on 

to the business of protecting waters as well. 

Mr. YOUNG. That is well and good, but it sounds to me like the 

Administration and EPA and the rest of them are really looking for 

a seizure of the authority on what is navigable and what is not. 

Now, in my Constitution in the State of Alaska, which was ratified 

by this Congress and by the people of Alaska, it specifically menVerDate Aug 31 2005 14:33 Mar 29, 2010 Jkt 000000 PO 00000 Frm 00051 Fmt 6602 Sfmt 6602 P:\DOCS\52881 JASON
40 

tions the State has control over navigable waters and I am very 

concerned that there is a desire for a Federal agency to take and 

start asserting use of waters within a State that are State waters. 

Now, the Federal waters I am not particularly concerned about 

that, but the State waters are State waters. 

Ms. JACKSON. You know, we are not asking for an expansion of 

jurisdiction; it is really putting the stated law back to what it has 

been for 30 years. The jurisdictional issues that we deal with now 

are over the state of the Clean Water Act as it was interpreted for 

literally 30 years. So what we are seeing now as a result is a huge 

logjam in the system, where there is so little clarity on jurisdiction—— 

Mr. YOUNG. But the legislation does not do that, and I am suggesting, Mr. Chairman, with all due respect to the author of this 

bill, before we move any legislation, it has to be perfectly clear, especially as has been ratified by the citizens and by this Congress 

when we became a State, that the waters belong to the State. 

There was never any argument about the State; it is by your agencies, you, EPA, Interior, start interpreting how they think it should 

be, not as the law says. 

Now, Mr. Chairman, with all due respect, this bill is not on my 

wish list if that isn’t clarified, because that is a taking from a constitutional act of this Congress by agencies. 

Mr. OBERSTAR. Would the gentleman yield? 

Mr. YOUNG. Gladly. 

Mr. OBERSTAR. What legislation is the gentleman—— 

Mr. YOUNG. The water legislation that you are proposing, I believe. 

Mr. OBERSTAR. Oh, that is not the subject of this hearing. 

Mr. YOUNG. Well, I am bringing it up—— 

Mr. OBERSTAR. We are not holding a hearing on that bill. 

Mr. YOUNG.—because I think she is in the seat and she is part 

of it. 

Mr. OBERSTAR. And that bill has not been introduced yet, by the 

way. 

Mr. YOUNG. I understand, Mr. Chairman, but when I have a witness—because I have a hard time getting hold of Administration 

chiefs of staff, etcetera, when I ask. When I was in the majority, 

there was no problem. But they have a tendency not to answer. So 

I am asking this question specifically for the reason for the State 

of Alaska. 

Mr. OBERSTAR. Well, in the Supreme Court decision, SWANCC, 

Justice Rehnquist clearly recognized authority of the Federal Government over navigable waters, but the opening paragraph of the 

Clean Water Act of 1972 makes it very clear that the objective of 

the Act is to establish and maintain the chemical, physical, and biological integrity of the Nation’s waters. It did not distinguish. 

While there are references within the Act to navigable waters, 

what the Administrator has said is the confusion created by the 

SWANCC decision and Rapanos decision has caused, both in the 

Bush Administration and now for this Administration, excessive 

amount of time consumed in the permitting trying to delineate the 

meaning of the Court’s decision. 

41 

And if you are referring to the bill that I introduced in the previous Congress, the purpose was to establish consistency and clarity, and to incorporate into law the previous regulatory body by 

which the Act was administered, to respect some of those concerns 

that you have already expressed. 

Mr. YOUNG. I thank the Chairman, but one of the things we have 

is how do you define what water is. Everybody knows what water 

is, but in the definition of water, is it a navigable stream, is it a 

puddle, is it a swimming pool? Whatever it is. And I am just very 

reluctant, when we deal with water—we have water battles in California, water battles in Arizona, water battles over the Colorado 

River, and we have water battles from Lake Michigan; and States 

have to have a real part of this program, and just not the Federal 

Government. 

Mr. OBERSTAR. That is correct, and that is the purpose. And we 

will have hearings further on specifically on the Clean Water Restoration Act, as it was called in the previous Congress. We are 

going to call it something else. We have heard all these concerns 

and I have several adjustments to the Act that I think the gentleman will be interested in. 

Mr. YOUNG. Well, I am always interested in what the Chairman 

likes to adjust. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Ms. Hirono? 

Ms. HIRONO. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Administrator, if you can hold off for just a few 

more minutes, there are three more Members. 

Ms. HIRONO. Ms. Jackson, when we took our break, I was able 

to apprise you of a particular situation affecting the city and county of Honolulu. Mainly, I was very gratified to hear you say that 

when you are dealing with enforcement actions relative to municipalities, the impact of adverse decisions has a huge effect on ratepayers and that you want to be able to work with the municipalities and, of course, based on science and those conclusions that 

should be drawn. I was gratified to learn that you would be sending someone to my office to talk about that particular circumstance. 

You have been asked earlier about the witness who will be testifying right after you, and you noted that EPA would not have jurisdiction, did not have jurisdiction in that situation because it involved drinking water, not surface water. 

Ms. JACKSON. Not quite, Ms. Hirono. The jurisdiction has to do 

with—we certainly have a safe drinking water act, which governs 

water safety of drinking water, and there is some amount of wellhead protection there. As I understand it—and I am cognizant that 

the witness is sitting right behind me, so she knows her situation 

better than me. But as I understand it, we would not have been 

able to assert jurisdiction over the application of the manure that 

eventually ran off and contaminated the well, as I understand the 

situation. 

Ms. HIRONO. So you actually would have had jurisdiction over 

some elements of that whole situation. 

Ms. JACKSON. We certainly have jurisdiction over any manure 

that enters surface water. I don’t know, I am assuming this might 

be a private well, so whether or not we have jurisdiction over that 

private well, I would say no. 

42 

Ms. HIRONO. I think that is what gets so confusing for our people 

who are impacted by these kinds of actions. It is really hard for a 

normal person, regular person to figure out who to contact. So if 

this is an area that needs to also be clarified, perhaps you can look 

at it. And knowing that the water doesn’t just stay in one place, 

that it just goes all over, right? And I don’t know how you draw 

the line as to who has jurisdiction when. So perhaps that is something you can look at, because the circumstances described are 

really outrageous. 

Thank you. 

Ms. JACKSON. I am happy to do that. Thank you. 

Ms. HIRONO. Thank you, Mr. Chair. 

Mr. KAGEN. [Presiding] Thank you, Ms. Hirono. 

The Chair recognizes Mrs. Capito. 

Mrs. CAPITO. Yes. 

Madam Administrator, thank you for being here. I would like to 

have a one-on-one conversation because I am sure you could tell 

from my opening statement I have a lot of concerns about what is 

going on with EPA in my State and the coal mining permits, so I 

appreciate that if that could occur. 

I have just been informed I get one question, so, in response to 

my colleague from West Virginia on the clarity issue and the definite steps that need to be taken, this is where a lot of the frustration is coming from our constituents, is the delaying, the inability 

to really see where not so much the end is, but how to get to the 

end. Whether it is an up or down, yes or no, it is this maybe land 

that we are living in that is extremely frustrating and is threatening a lot of jobs in West Virginia. 

So I guess what I would ask you—and in your statement here, 

when you talk about transparency and accountability, you state, 

quite rightly so, that it is your responsibility to tell it like it is. But 

even I have had meetings to try to figure out where this process 

is going and how it actually is going to be resolved in the end. 

My understanding is that, of the 79 permits, only 4 have gone 

to the Corps and those would be under a 60-day time. So that 

leaves another 75. Where are they? When could I tell my constituents that they will have an answer on that? And then once the 

Corps makes their decision after the EPA has had a chance to 

weigh in on these decisions, then it is my understanding that the 

EPA can then come back in and render another decision. So there 

again it is more uncertainty and lack of clarity as to what the end 

is. 

So I guess I would ask you would the EPA seek to suspend or 

revoke a permit further down the road? Can you go back to the 

former permits? And does this process really lend itself to the clarity that you have stated in your mission under your administratorship want to see at the EPA? 

Ms. JACKSON. Thank you. 

Mrs. CAPITO. And, again, I would emphasize a lot of economic environmental issues are so intertwined in our State, as in many of 

these States, as you have heard. 

Ms. JACKSON. Yes, thank you, and I am happy to meet with you 

on this issue separately, since time is limited. In response to your 

question, I will say this. As I mentioned earlier, these 79 permits 

43 

have been held up for years by litigation. It is also no secret that 

EPA had significant staff level concerns that were raised with the 

Department of the Interior when the stream buffer rule, the rule 

that came out in 2008, that is, ostensibly authorizes some of this 

work and is interpreted a long time by the State of West Virginia 

to allow large amounts of these valley fills. There has been scientific concern about it for quite some time. 

So we found ourselves, as I took over at EPA, at a situation 

where we had 79 permits that have been held up by litigation, 

some that EPA had never reviewed. These are not re-reviewed permits, they had not been reviewed because of the litigation. All work 

had been stopped. And what we committed to was a process that 

we would outline the work, as much as possible, with the Corps of 

Engineers to work through those 79. 

Now, the 75 or so that are remaining are with the Corps of Engineers. As they notify us, they begin a 60-day clock for review of 

those permits—— 

Mrs. CAPITO. They are not at the Corps yet. 

Ms. JACKSON. Well, they are not physically there. 

Mrs. CAPITO. They are not on the 60-day clock yet. 

Ms. JACKSON. The Corps starts the 60-day clock under the 

Memorandum of Understanding when they initiate review of these 

projects. It was EPA’s job to determine which of the projects it 

wanted to have enhanced review on. We have done that and we did 

it after a 15-day period we went final on that list. So now as the 

Corps opens these permits for review and there begins the work of 

working with the permit applicants to try to address whether or 

not they have minimized valley fill and potential water impacts. 

What we are seeing with the science here is that, as these watersheds have more and more valley fill in them, frankly, we see 

water quality impacts, and it starts at the ecosystem level with 

conductivity increases that indicate selenium and other increases, 

and we believe that over time that is going to be a larger problem, 

not a smaller one. So what really has to happen is rolling up the 

sleeves to minimize in these instances. 

Mr. KAGEN. Meaning no disrespect, the gentlewoman’s time has 

expired. 

The Chair recognizes Mr. Hare for a single question to move 

things along. 

Mr. HARE. Thank you, Mr. Chairman. 

Welcome, Ms. Jackson. I just want to say I think the President 

did a wonderful job selecting you. 

I know you have to leave, so maybe you can just even send the 

answer to my office so you can get out of here. But you said that 

EPA is developing innovative strategies that will identify animal 

feeding operations that are violating discharge requirements and 

present a significant threat to water quality. I was wondering you 

or your office might be able to elaborate on these identification 

strategies that you are developing. 

Ms. JACKSON. I am happy to send information over. Cynthia 

Giles is right here. And I didn’t introduce Pete Silva, so you give 

me an excuse to do that. He runs our water program. Cynthia runs 

our enforcement program. 

44 

We are, right now, collaborating to try to identify ways to really 

look for large sources, and those concentrated animal feeding operations that either inadvertently or by practice are not getting permits, or get them and then violate them, are real concerns for 

water quality. So we would be interested in working with you if 

there are ideas on how to find the worst—— 

Mr. HARE. That would be wonderful. Thank you very much and 

thank you for coming. 

Ms. JACKSON. Thank you. 

Mr. KAGEN. Thank you. 

The Chair recognizes our gentleman from down south, Mr. Taylor. 

Mr. TAYLOR. Thank you, Mr. Chairman. 

Ms. Jackson, thank you for sticking around longer than you were 

supposed to. Mine is a little bit different. As you know, the President is touring the Gulf Coast today. His schedule did not permit 

him to go to Mississippi, which is where the storm hit; Louisiana 

got the flood. One of the things that has happened since the storm 

is communities that, prior to the storm, had taken out loans for 

water and sewer based on the population at that time have had, 

in many instances, 40 percent population reductions from people 

who lost their homes and have not returned. 

We have made Ms. Woodcow, who is the Gulf Coast Recovery 

person, aware of this problem and asked for some, as best as you 

can, even loan restructuring or loan help for those communities 

that are down 40 percent through no fault of their own four years 

after the storm. We are going to send you some of that information 

today and I would ask the folks in your Department—I would have 

told this to the President had he visited Mississippi today, but I am 

going to ask the folks in your Department to take a look at that 

and see what we can do to help those communities, again, through 

no fault of them own with 40 percent fewer people than they had 

on August 28th of 2005 to help pay back those loans. 

Ms. JACKSON. Okay, thank you, sir. I will look for that information and I am happy to discuss it with you. 

Mr. KAGEN. Administrator Jackson, thank you for appearing 

here. You are now dismissed and we will now call our next panel 

of witnesses, if they would please move to the table. 

We will be hearing from Judy Treml from Luxemburg, Wisconsin, Dennis Kavanaugh, who is a Representative of the Sandy 

Hook Waterman’s Alliance; and Dr. Patricia Butterfield, our nurse 

and Dean and Professor, College of Nursing, Washington State 

University. 

The Chair is pleased to recognize Ms. Treml from Luxemburg, 

Wisconsin, a tremendous community of caring people. Thank you 

for coming here to Washington to give us your story. 

45 

TESTIMONY OF JUDY TREML, LUXEMBURG, WISCONSIN; DENNIS KAVANAUGH, REPRESENTATIVE, SANDY HOOK WATERMAN’S ALLIANCE; DR. PATRICIA BUTTERFIELD, PH.D., R.N., 

DEAN AND PROFESSOR, WASHINGTON STATE UNIVERSITY, 

TESTIFYING ON BEHALF OF AMERICAN NURSES ASSOCIATION 

Ms. TREML. Thanks for having me. My name is Judy Treml. I am 

here representing myself, my husband, Scott, and my three daughters, Kaitlyn, Emily, and Samantha. I am also speaking on behalf 

of many other families who find themselves facing the same potentially life-threatening effects from exposure to contaminated water 

in northeast Wisconsin. 

I brought today—actually, I can keep this. I brought today some 

water samples—I am more of a presentation kind of person—for 

your viewing. If you look at these three bottles of water, two of 

them are polluted with E. coli, one of them is not. I present this 

to my local legislators, my State, and all of them would pick this 

bottle as the clean water. If I asked you to pick which bottle you 

think is the clean water of the three, which one would you pick? 

If you pick this one and you drank this water or gave it to your 

infant daughter, you would be poisoning her with E. coli. This is 

the new safe drinking water flowing into my house after the DNR 

made recommendations to the depth of my well water to be 400 

feet. I would not give my children a bath in this water; I would not 

drink this water. This water has to be filtered with three different 

filtering systems, to the tune of about $6,000. 

Like I was saying, my six-month-old daughter was poisoned. We 

went to the doctor, we found out that in the event that this illness 

would turn bad, the outcome for her would be death. To me, that 

is unconscionable. I had a safe water test on February 4th, 2004, 

and by March 2nd, in a State-run lab test I had measurable counts 

of E. coli at 2800 parts per milliliter, that is, 1800 parts per milliliter more than what it takes to close a public beach in Wisconsin 

and near our home. 

Right now there are no laws protecting groundwater in Wisconsin or anywhere. I believe it is EPA’s duty to install new laws 

that protect groundwater to address groundwater specifically. We 

all need groundwater to survive. It is unconscionable to me, as a 

mother and as a taxpayer, to see all the laws and regulations to 

protect our lakes, streams, fish, and wildlife, and absolutely no 

groundwater protection to protect people. Does anybody here see 

what is wrong with this picture of protecting fish and not children? 

Not that the environment isn’t important, but does no one here see 

the problem that I see when our Federal laws protect fish and not 

people? 

I am also appalled by my State’s mismanagement of Federal 

funding for enforcing the existing clean water rule. That may be 

neither here nor there to Wisconsin or people here in Washington, 

but when parents have to call a stay-at-home mom from Luxemburg, Wisconsin to help remedy a polluted well that is sickening 

their children, something needs to be done and these parents deserve better. We all deserve better. 

46 

What I am asking for from this Committee and from the EPA, 

this Government, essentially, is protection from groundwater and 

surface water pollution from these tolerated practices. 

I am a hobby smoker. I am not allowed to smoke this in this 

building. Why? Because this Government and our State, Wisconsin, 

impose smoking bans in public places and in restaurant and workplaces and in these Federal buildings. Yet, there are absolutely no 

laws to protect my groundwater from pollution from another 

source. You all have protected yourselves from the air pollution 

that secondhand smoke causes; yet, nobody seems to think that 

when somebody pollutes somebody else’s well, that there needs to 

be any kind of law against that. 

Please give us the same protection you gave yourselves from the 

secondhand smoke and create new regulations for the large-scale 

farming operations that pollute our groundwater, sicken our families, and kill our fish. And please don’t force us to have to wait for 

the tragedy to happen as what happened with the E. coli contaminated spinach a few years back. People had to die from that before 

anybody really paid attention. Just as it would be illegal for me to 

light this cigarette and force you to breathe in my smoke, it should 

be just as illegal for someone to poison my groundwater supply. 

Thank you. 

Mr. KAGEN. Thank you, Judy, for your story and thank you for 

your written testimony as well. 

We now call on Mr. Kavanaugh. 

Mr. KAVANAUGH. Thank you for the opportunity for to let me 

come down and address the Committee. 

The Sandy Hook Waterman’s Alliance was formed to promote 

and protect commercial fishing in Northern Monmouth County, 

New Jersey. Currently, the most successful fishery we have now 

are shell fish, mainly mercenaria mercenaria, which are hard 

clams. Unfortunately, all of our available range is pollute. All of 

the Raritan Bay, Sandy Hook Bay, Navesink and Shrewsbury Rivers are under some form of harvest restriction. The current harvest 

uses depuration, which is a process where they submerge clams for 

48 hours in radiated water. Unfortunately, or fortunately, we have 

an $8 million payroll, but we lose 40 to 60 percent of that due to 

handling and regulations. 

Shell fish are a good indicator of water quality because a significant amount of the catch is consumed raw, which leads to a number of health issues if not handled correctly. An indicator of water 

quality is fecal count, measured in parts per million. To dip a child 

in a fecal count of about 100 parts per million is a good target. 

Shellfish require 15 parts per million to be consumed raw. Aiming 

for shell fish would ensure good swimming quality for the children. 

Our enemies in Monmouth County are runoff and poor sanitation 

management. These are the same problems that killed a billion dollar oyster industry around the turn of the century. Without an 

aquaculture option, prohibited by water quality, the industry has 

been downgraded to working poor without a social network for support. 

Our first offender that we have, Monmouth Race Track, has a 

history of 15 years of allowing horse waste to enter the Shrewsbury 

River. This summer, a plan to contain the runoff was suggested by 

47 

the track and has a completion date of 2012. The reason for the 

length of this is construction is not to conflict with track operations. 2009’s improvements were to put gutters on the horse 

sheds. Funding has yet to be approved for any of these improvements. Monmouth Track is owned and operated by the Sports and 

Exposition Authority, a.k.a., the State of New Jersey. The worst 

polluter in Monmouth County is the State of New Jersey. 

Our second offender is the municipality of Colts Neck. This municipality has single-handedly defeated efforts to fund the Navesink 

River Water Shed Project. In March of 2007, Colts Neck’s response 

for not participating and killing the funds was that their effort to 

control groundwater was better than what the county could come 

up with. The only problem was the report that came out in February 2008, done by the State, found human feces in local streams 

of Colts Neck. What made this particularly upsetting was that the 

site was 25 yards from Monmouth County’s drinking supply, Swimming River Reservoir. It seems that Colts Neck surrounds the reservoir and all of Colts Neck is served by septic waste systems. 

Our last offender is the borough of Red Bank. An extensive study 

was done in the same report in February of 2008 by the State of 

New Jersey because of a downgrade in water quality. Red Bank’s 

ground system is a colander with human, animal, and multiple antibiotic sources acknowledged. Sadly, the same report refers to discoveries of non-point, which means no accountability. This discussion is made easier because all these documents have Lisa Jackson’s name on them. She is intimately familiar with all the problems that we have in Monmouth County. 

Groundwater pollution is based on economics. It is cheaper not 

to comply and externalize the responsibility and expense downstream. Over the past three generations, government has failed to 

slow the assault on New Jersey’s coastal resources. We can defend 

our own interests given the right tools. The change will be expensive, dramatic, and correct. 

I would like to leave you with two thoughts. I am running out 

of time. All the offenses fall under the shadow of the EPA. Every 

summer, the Garden State Parkway, a main artery in New Jersey, 

is locked up with families going south for the summer. What happens to the kids that can’t get on that artery? Clean water is a civil 

right that begins with permits issued by the EPA. 

Secondly, a substantial amount of racketeering, fraud, and tax 

evasion is sucking the life out of my industry. My pleas to three 

governors, three attorneys general, one inspector general, one Federal prosecutor, and two congressman have gone unanswered. Is 

there any chance one of you gentleman could place a call for me 

for some Federal help? 

Thank you. 

Mr. KAGEN. Thank you, Mr. Kavanaugh. 

The Chair recognizes now Nurse Patricia Butterfield. 

Ms. BUTTERFIELD. Thank you. 

Chairman Oberstar, Subcommittee Chair Johnson, and other distinguished Members of the Committee, it is a privilege to speak to 

you today on behalf of the American Nurses Association and the 

Washington State Nurses Association to discuss regulatory and 

transparency issues relating to the Clean Water Act. 

48 

As you know, the ANA is the only professional organization representing the interests of the Nation’s 2.9 million registered nurses. 

The ANA recognizes the fundamental link between our environment and our Nation’s health, and I am honored to discuss that 

link. As a public health nurse with expertise in environmental 

health, I am here to discuss the research we have conducted in the 

low-income homes of rural residents from Montana and Washington State. 

As you know, the Clean Water Act addresses surface water and 

coastal areas. Surface waters can contaminate drinking water 

sources in a variety of ways, including agricultural runoff, combined sewage overflow, and discharge of mining and industrial 

waste. In this context, I will discuss our research. 

Our study involved collecting biological and chemical data from 

the homes of more than 400 low-income rural children. Our research is funded by the National Institute of Nursing Research at 

NIH. Many of the families that we study live out in the country 

not by choice, but by necessity. They seek the least expensive housing available, a mobile home or a cabin poorly equipped for Montana’s cold winters. 

Although we test for many contaminants, the most common reason that families sign up for our study is to learn about their 

water. Families tell us they want to know about their water. They 

cannot afford testing on their own and they seem willing to put up 

with our research team in order to find the answers that they 

want. Compared with every other environmental issue from radon 

to lead, mothers consistently tell us that their top priority is to 

know about their water. 

As you can imagine, our testing yields a variety of results. Many 

families receive results that their water contains no contaminants 

above threshold levels. This is very good news. However, 29 percent 

of the homes that we test test positive for at least one risk; 17 percent of the homes tested positive for chloroforms; 3 percent for E. 

coli; 6 percent exceeded the arsenic threshold; and 3 percent exceeded the nitrate threshold. 

One family we worked with had E. coli in their well. In such 

cases, we typically walk the family through disinfecting their well 

by adding bleach, letting it sit, and then flushing the bleach from 

the well and plumbing. After this well had been disinfected, we retested it and E. coli was found again. We had the family repeat the 

process and we found E. coli a third time. No matter what guidance 

we gave the family, their well remained contaminated. At this 

point we ran out of inexpensive options. We recommended that the 

family install a UV disinfection system or switch the children to 

bottled water. There was simply no other low-cost or no-cost solutions that we could provide. 

The tests we conduct don’t differentiate between point and nonsource point pollution, but for a mother it doesn’t make any difference. Whether surface water source is from mine waste, a local 

feed lot, or agricultural runoff, it makes little difference to the 

mother. She only knows that yesterday she thought that giving her 

child a glass of water was a healthy action. Today she is not so 

sure. 

49 

One thing we have learned is that families want their government to look out for them. They want to know that surface water 

contaminants being dumped into the watershed, either intentionally or inadvertently, are being monitored. They want to know 

that those that are doing the dumping are being held accountable 

because when we fail to hold the polluters accountable, we shift the 

cost of healthy water from the polluter to the family. When a well 

becomes contaminated and a family begins to purchase bottled 

water, that family incurs a very real cost, and the families we 

study can ill afford such costs. 

The simple truth is that, despite our recommendations, the families who find out their water is at risk almost always turn to bottled water. Even when we recommend other low-tech solutions, 

families rarely have the time, money, or expertise to look at other 

alternatives. When families turn to bottled water, they increase 

their own cost, as well as the Nation’s cumulative burden of plastic 

bottles. 

As a scientist, as a nurse, and as a citizen, I want to know that 

the EPA and their State designates have the resources to enforce 

the Clean Water Act. I want to know that the more than one million people who are immunosuppressed and at very real risk of 

dying from water-borne disease are protected. It is important to me 

to know that intentional polluters who seek to profit by poisoning 

our Nation’s coastal areas are prosecuted to the full extent of the 

law, because, in the end, we see too many parents who believe, no 

matter how egregious or how deliberate the actions of polluters are, 

the voices of citizens will not be heard. 

I thank you for taking action that recommits our Government to 

the Clean Water Act and provides our agencies with the resources 

they need to act proactively on behalf of public health. Trust can 

be restored by committing the requisite resources to the protection 

of our surface waters. Our citizens and your constituents deserve 

nothing less. Thank you. 

Mr. KAGEN. Thank you, Ms. Butterfield. Appreciate all three of 

you being here. 

I will turn to Gene Taylor and ask if you have any questions at 

this moment, Mr. Taylor. 

Mr. TAYLOR. No. 

Mr. KAGEN. Mr. Hare? 

Mr. HARE. Thank you. 

Ms. Treml, just a couple questions. First of all, how did you find 

out this was in your—this is well water? 

Ms. TREML. Yes. 

Mr. HARE. How did you come to find out that you had E. coli in 

your well? 

Ms. TREML. On a Sunday. It was February 28th. It was a Sunday 

morning. Our neighbor came over. She lives just adjacent; her 

property adjoins the field that was spread 80,000 gallons of liquid 

manure in 18 inches of snow in 40 degree weather. The manure 

was running across her front lawn. She came over crying because 

her well water was black; it looked like the manure that was being 

spread. And she was selling her home and you can’t sell a home 

in Wisconsin with a faulty well. 

50 

And my husband had been talking to the DNR up until this point 

when he was spreading the manure and it was running off, and 

they were doing nothing about it. He actually took video of it and 

DNR didn’t have an interest in it. So he took the water and he says 

to her, well, I am going to take this in for you and certainly they 

will be interested in this. He did that on Monday and there was 

no interest in it; they told us to call someone else. One of the employees, Charles Rehoben, from the northeast region, actually told 

my husband to pick up a phone book and call someone else. And 

when my husband asked who to call, he said, just open it and find 

someone. He gave us nothing. 

So my husband came home from work and told me what happened with our neighbor’s well, and I was preparing dinner that 

night and I was washing some food off and I flipped the switch of 

my kitchen faucet and out comes brown cow manure smelling 

water, literally. I turned to my husband and he said—I said you 

need to call the DNR; they need to do something about this, that 

is his manure over there. We didn’t have cows. We had a septic 

system that had just human waste in it. We didn’t own any cows 

that we spread manure on our fields. We live on a farm. And my 

husband, just exasperated, told me, Judy, they aren’t going to do 

anything. So I ended up calling the media and the media was interested because you could physically see—this is our water—chunks 

of manure coming out into my kitchen sink. 

This was our water. This is what my water looked like the night 

before when I gave my daughter a bath. What I learned subsequently through all of the research I did when she was sick, my 

pediatrician said this was grossly contaminated with manure, E. 

coli, when I gave her a bath. I couldn’t tell; it didn’t look bad, it 

didn’t smell bad. It looked perfectly fine. She was six months old. 

You lay a baby in the water. What do they do in the bath? They 

suck on a wash rag. That is how she got exposed to the contaminated water. 

Mr. HARE. Well, I have to tell you, I don’t know, whatever it 

takes to get this thing fixed, we have to fix it. That is just absolutely—— 

Ms. TREML. Sadly, this happens to about 100 families a year in 

Mr. Kagen’s district. He is ground zero, where his office is in 

Brown County, Kewaunee County. There is about 100 families a 

year and, like I said, they have no one to turn to in the government, no one. We are in a black hole of regulation; there is no regulation for this kind of—— 

Mr. HARE. Well, you may be in a black hole right now, but we 

are going to fix that. I mean, we have to do that. I cannot imagine 

turning on your faucet and having manure coming out. It is almost—— 

Ms. TREML. We have tons of video if you want to see it. 

Mr. HARE. No, I will pass on the video; I will take your word for 

it. But we have to fix that. 

Doctor, you bring up a good point. When people go to bottled 

water, they have the plastic bottles, so, A, you have the expense 

of output for people who can’t afford it. They somehow have to try 

to afford it. And then, ultimately, environmentally, we are creating 

51 

an additional problem on top of what we already have. And these 

are hitting families that just don’t have anyplace else where to go. 

Ms. BUTTERFIELD. I agree, Congressman Hare. That makes a lot 

of sense and that is what we see all the time. We work with families under 250 percent poverty. None of them have the resources 

to make this type of switch. 

Mr. HARE. Then, lastly, Mr. Kavanaugh, if you need somebody to 

make a phone call, I will give you my card before you leave. I don’t 

know if it will—— 

Mr. KAVANAUGH. I am sorry, I missed that. 

Mr. HARE. I said if you need somebody to make a call—I am from 

Illinois, not New Jersey, but I still have a big mouth anyway, so 

I would be happy to make a call for you. 

Mr. KAVANAUGH. I sure could use some help. 

Mr. HARE. Well, I will do the best I can. 

I just want to say to all of you I appreciate your being here. This 

is my first tour of duty on this Committee and I am glad I am here 

today. When you hear about these things, I was sitting here as you 

were testifying, just kind of shaking my head, trying to get my 

mind around what you and your family and your kids are doing, 

and this has absolutely got to get fixed, and it has to get fixed now. 

This is nothing something that can be delayed. So we have to move 

and move very quickly, and get it done right. 

And for those people who wouldn’t pay attention to your husband, I think it is shameful. They have a responsibility to protect 

you and your family. So we will try to get this thing done quickly 

and get it right for you and your family. But I cannot believe that 

a family would have to put up with that. 

Thank you, Mr. Chairman. 

Mr. KAGEN. Thank you for your questions, Mr. Hare. And just to 

set the record straight, the State of Wisconsin, DNR did what they 

were supposed to do in following their rules, but their rules weren’t 

sufficient to cover the harm. I would quote one of my favorite justices of the Supreme Court, Hugo Black, who, during one of his rulings—it may have been a bar fight, I am not sure—where he said, 

‘‘Sir, your freedom to swing ends where the other person’s chin begins.’’ So when it comes to a source of pollution, their freedom to 

pollute our air, our water, and our soil ends where the other person’s environment begins, be it internal or external. 

My question really has more to do with all three of you come 

from different regions of the United States and you have a common 

problem, and that problem you feel, if I hear you correctly, is that 

our groundwater needs adequate protection. Is that correct? 

Ms. TREML. That is correct. 

Mr. KAGEN. And yet there is an economic cost to this because 

once the groundwater has become polluted, once an aquifer has become polluted or collapses altogether, it is very, very expensive, if 

not impossible, to bring it back to life, so to speak. So I would like 

to hear your comments first, Mr. Kavanaugh, about how you think 

you can produce cleaner, healthier shell fish. 

Mr. KAVANAUGH. Pretty simple: you have to put some teeth in 

the watchdog. In my particular case, we already got bounced out 

of Federal court once. In additional documentation that I brought 

in as part of my testimony, you will find out that a very expensive 

52 

study was done in Red Bank. Nowhere did they use the word point 

source. I mean, you have to give me—I will fight the fight. We will 

defend our families and our way of life. 

But you have to give me a law I can fight with. When I am getting thrown out of Federal court—and nobody in the State is paying any attention to me. I only have the Federal arena. And I am 

willing to go to the Federal arena. We are willing to defend our 

shores and our families, but if I have no standing because it is a 

colander and you have to say—if everything is leaking sewage and 

antibodies and you say, well, it is not a point source, then I have 

to go home. 

Mr. KAGEN. Thank you, Mr. Kavanaugh. 

Ms. Butterfield, do you feel that the EPA has what it needs now 

in terms of the legislative authority to oversee and enforce the actions that are taking place in Washington and Montana? 

Ms. BUTTERFIELD. Congressman Kagen, you spoke about the importance of prevention and that, once water is contaminated, it is 

extremely expensive to uncontaminate that water. That is why enforcement and resources for enforcement are key, so that when I 

drive on a highway and I see a highway construction project where 

the sediment and fumes and diesel are contaminating surface waters that will affect the water systems of people downstream, that 

people know that enforcement will be effective. 

The second thing would be stronger connections between local 

health departments about information and public awareness so 

that people can make the connections between water contamination 

and public health as an issue, and strengthening that so that communities can work together. Thank you. 

Mr. KAGEN. Ms. Treml, any remarks in that regard? 

Ms. TREML. The only remark I have is just a clarification to Ms. 

Jackson. There was a question posed to her, and to you as well, 

that, in our case, the Clean Water Act was clearly violated when 

the manure ran off over the neighbor’s property and into School 

Creek, which is a navigable waterway, it is a waters of the State. 

Our Federal lawsuit got seated in Federal court in April of 2004 

and it was only three months later the State of Wisconsin decided 

to file its own lawsuit for violations of the Clean Water Act. 

So we did have the rules in place, so to speak, to have the DNR 

and the State of Wisconsin act on our water contamination claim— 

not our private drinking water claim—but what we found is that 

the State of Wisconsin became our adversaries versus our allies. 

When we were going toe-to-toe with DNR employees in depositions, 

when they were becoming a hindrance to our case rather than a 

help, that was when we realized we had a problem in Wisconsin 

and that other families in Wisconsin had a real big problem. 

Mr. KAGEN. Well, thank you all very much and thank you again 

for appearing before the Committee. You have the full support of 

a majority of the Members of this Committee in taking actions to 

try and prevent further point source and non-point source pollutions. Thank you very much and you are free to go. 

We have three votes. 

If panel three would get mentally prepared to take your chairs. 

That would be Anu Mittal, Wade Najjum, Steven Brown, Tom 

Porta, John Rumpler, Dr. Jay Shimshack, and Eric Schaeffer. 

53 

We will adjourn for a period of time until we vote and come back. 

[Recess.] 

Mr. OBERSTAR. [Presiding] The Committee will resume its sitting 

following the series of votes, and we will begin with panel three. 

I believe it was already—counsel, was the panel already called? 

VOICE. No, they were not. 

Mr. OBERSTAR. Oh, then I call the panel. We have Ms. Anu 

Mittal. That is quite an interesting name. It is of Indian origin and 

at least your namesake—— 

Ms. MITTAL. Is a very rich man, yes. 

Mr. OBERSTAR.—bought a steel company and is building a plant 

in my district. 

Ms. MITTAL. Really? 

Mr. OBERSTAR. Yes. They also have an iron ore mining operation. 

Ms. MITTAL. Every one of my family members has tried to find 

some relationship with him but has not been able to. 

Mr. OBERSTAR. It hasn’t worked yet. Oh well, thank you for being 

with us today. 

Mr. Wade Najjum of Office of Inspector General at EPA; Mr. R. 

Steven Brown, Executive Director for Environmental Council of the 

States; Tom Porta, Deputy Administrator for the Nevada Division 

of Environmental Protection for ASIWPCA; Mr. John Rumpler, 

Senior Attorney for Environment America; Dr. Jay Shimshack, Assistant Professor of Economics at Tulane and Visiting Scholar at 

Erb Institute for the University of Michigan; and Mr. Eric Schaeffer, Executive Director for the Environmental Integrity Project. 

Welcome. Ms. Mittal, we will begin with you. Put your microphone on so we can hear every word of wisdom. 

TESTIMONY OF ANU K. MITTAL, DIRECTOR, NATIONAL RESOURCES AND ENVIRONMENT TEAM, GOVERNMENT ACCOUNTABILITY OFFICE; WADE T. NAJJUM, ASSISTANT INSPECTOR GENERAL, OFFICE OF INSPECTOR GENERAL, 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; R. 

STEVEN BROWN, EXECUTIVE DIRECTOR, ENVIRONMENTAL 

COUNCIL OF THE STATES; TOM PORTA, DEPUTY ADMINISTRATOR, NEVADA DIVISION OF ENVIRONMENTAL PROTECTION, TESTIFYING ON BEHALF OF ASSOCIATION OF STATE 

AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS; JOHN RUMPLER, SENIOR ATTORNEY, ENVIRONMENT AMERICA; DR. JAY P. SHIMSHACK, ASSISTANT PROFESSOR OF ECONOMICS, TULANE UNIVERSITY, AND VISITING SCHOLAR, ERB INSTITUTE, UNIVERSITY OF MICHIGAN; AND ERIC SCHAEFFER, EXECUTIVE DIRECTOR, ENVIRONMENTAL INTEGRITY PROJECT 

Ms. MITTAL. Thank you, Mr. Chairman and Members of the 

Committee. We are pleased to be here today to participate in your 

hearing on the 37th anniversary of the Clean Water Act. 

Since the Act was passed, GAO has been asked by Congress several times to monitor EPA’s enforcement efforts under the Act, and 

my testimony today is based on several reports that we completed 

in the last nine years which highlight some longstanding issues 

with EPA’s efforts. These include inconsistencies in regional enforcement activities, the impact of inadequate resource and workVerDate Aug 31 2005 14:33 Mar 29, 2010 Jkt 000000 PO 00000 Frm 00065 Fmt 6602 Sfmt 6602 P:\DOCS\52881 JASON
54 

force planning, efforts to improve national priority planning and 

oversight of State programs, and limitations in some measures of 

program effectiveness. 

With regard to inconsistencies in EPA’s enforcement programs, 

while we recognize that some variation is necessary to take into account local conditions and concerns, core enforcement requirements 

must be consistently implemented and similar violations should be 

met with similar enforcement responses. 

However, in 2000, we found significant variations in the regions 

and this had led to inconsistent enforcement and more in-depth reviews in some regions than in others. Variations that we identified 

included inspection coverage, the number and type of actions 

taken, the size of the penalties assessed, and the criteria used to 

determine penalties. Several factors contributed to these variations, 

including differences in State laws and authorities, variations in 

resources, and incomplete and inadequate enforcement data. 

In 2007, when we again examined EPA’s oversight of State programs, we found that by implementing the State review framework 

EPA had, for the first time, the potential of providing consistent 

oversight of the State programs. By using this framework, EPA 

had identified several weaknesses in the State programs that were 

consistent with our findings of 2000, but we concluded that until 

EPA addressed these weaknesses and their root causes, it would 

not be able to determine whether the States were performing timely and appropriate enforcement, and whether penalties were being 

applied fairly and consistently. 

With regard to the adequacy of enforcement resources, our past 

work has recognized that EPA’s and the State’s responsibilities and 

workload under the Clean Water Act have increased significantly 

and that EPA’s work has shifted from direct implementation to 

oversight of State programs. Our work has also shown that while 

overall funding for enforcement has increased, these increases have 

not kept pace with inflation or growth in responsibilities. 

In this environment of constrained resources, what is more troubling is that EPA continues to lack a systematic data-driven process for budgeting and allocating resources. We have repeatedly 

found that EPA makes incremental adjustments and relies on historical precedent when making resource allocations, instead of 

using a bottom-up data-driven approach. The most significant obstacle to comprehensive reform in this area is the agency’s lack of 

complete and reliable workload data. As long as EPA lacks these 

data, it will be hampered in its ability to target limited resources 

to the areas of greatest risk. 

In contrast, we have found that EPA has made substantial 

progress in improving priority setting and enforcement planning 

with the States. Specifically, EPA’s partnership system for those 

States that demonstrate strong environmental performance has 

provided States with greater flexibility and autonomy in planning 

and operating their programs. This partnership system has fostered a more cooperative relationship with the States and has 

helped with joint planning and resource allocation. 

Finally, in 2008, we reviewed three key measures that EPA uses 

to assess and report on the effectiveness of its enforcement programs. Specifically, we reviewed EPA’s measures for assessed penVerDate Aug 31 2005 14:33 Mar 29, 2010 Jkt 000000 PO 00000 Frm 00066 Fmt 6602 Sfmt 6602 P:\DOCS\52881 JASON
55 

alties, injunctive relief, and pollution reduction. Our review found 

a number of shortcomings in how EPA calculates and reports information on these measures, which may result in an inaccurate assessment of the program. 

In conclusion, over the past decade, we have identified and recommended a number of actions that EPA can take to strengthen 

its enforcement program under the Clean Water Act. However, 

EPA’s implementation of our recommendations has been uneven 

and, as a result, many of the issues that we have identified in the 

past remain unaddressed even today. We continue to believe that 

the agency needs comprehensive, accurate, and reliable data; better 

resource allocation processes; and accurate performance measures 

to help ensure that it is implementing the Clean Water Act consistently across the Country and that like violations are being addressed in the same manner. 

Mr. Chairman, this concludes my prepared statement. I would be 

happy to respond to any questions. 

Mr. OBERSTAR. Thank you very much for your testimony and for 

the splendid work that GAO did on its evaluation of the Clean 

Water Act enforcement. 

Now, Mr. Najjum. 

Mr. NAJJUM. Thank you, Mr. Chairman. Good afternoon, Mr. 

Chairman. I am pleased to be here today marking the 37th anniversary of the Clean Water Act to talk about the OIG’s work that 

bears on EPA’s ability to manage, oversee, and enforce environmental laws, including clean water. 

Over the years, the OIG has issued many reports that pertain to 

aspects of the Clean Water Act, ranging from EPA’s oversight of 

major facilities and long-term significant noncompliance, efforts to 

clean up the Chesapeake Bay and the Great Lakes, and delays in 

establishing water quality standards for nutrients. We are currently processing a report that will be released in the coming days 

on Wetlands Section 404 enforcement. In these individual reports, 

we identified problems and made recommendations for corrective 

actions specific to the scopes of those reviews. Many of these reports are summarized in my full statement. While the Agency does 

not always agree with our assessments, we believe we have a good 

working relationship and that good faith efforts are made to resolve 

and correct the issues we report. 

We also have a significant body of work addressing enforcement 

and enforcement-related issues in other programs at EPA. For example, we just issued a report on high priority violations, a Clean 

Air Act enforcement process that is comparable to significant noncompliance of the Clean Water Act. Our work includes evaluating 

the process or basis for establishing the standards for enforcement. 

We have also evaluated aspects of the overall management of enforcement, like our report on EPA’s Office of Enforcement and 

Compliance Assurance strategic planning for priority enforcement 

areas. 

I mention these other areas because we believe that there are 

common roots to many of the problems we identify in each of the 

media. We believe that some of the roots of these issues are beyond 

the Agency’s ability to fix without assistance. We call these management challenges. We define management challenges as a lack of 

56 

capability derived from internal, self-imposed constraints or, more 

likely, externally imposed constraints that prevent an organization 

from reacting effectively to a changing environment. Each year we 

update and revise our list. For fiscal year 2009, we have ten. 

I would like to talk about one management challenge in particular that we believe directly impacts EPA’s effectiveness regardless of the media or statute organization and infrastructure. Many 

of the other challenges also impact Clean Water Act enforcement, 

but organization is the major common denominator. We have repeatedly reported that EPA regions do not ensure consistent enforcement of environmental laws. The usual causes addressed are 

related to a lack of national guidance establishing an EPA position, 

lack of national oversight over the regions, and a lack of regional 

oversight over delegations to the States. Also, inconsistent data collected from the States and others as interpreted by ten regions 

adds to the problem. The OIG addresses these issues within the 

scope of our work, but underlying the Agency’s problems is an organization not designed to do its mission. 

The Agency’s current strategic plan calls for having the right 

people in the right place at the right time. However, since EPA’s 

formation in 1970, a comprehensive study has not been completed 

to analyze EPA’s mission, organization, and the related number 

and location of employees needed to most effectively carry out 

EPA’s mission at least cost. This affects all functions, not just clean 

water. 

To quote from the 1970 memo creating an organization for environmental protection: ‘‘The functions assigned to EPA are not the 

only determinants of its effectiveness. Performance will be helped 

or hindered by the way the programs and functions which make up 

the EPA are structured within the new organization.’’ We also note 

that it specifically rejected trying to achieve EPA’s objectives by organizing around media such as air, water, and land. According to 

EPA’s history, there was a three-phased plan to streamline and 

consolidate functionally for efficiency. The Agency never implemented the third phase, which would have eliminated the mediaoriented program offices altogether. 

In 1995, the House and Senate Appropriations Committees commissioned the National Academy of Public Administration to assess 

EPA’s efforts in setting environmental priorities and allocating resources. In part, NAPA recommended the following: ‘‘The environmental control efforts should be integrated. In consultation with 

Congress, and as part of the process of integrating environmental 

statutes, the agency should begin work on a reorganization plan 

that would break down the internal walls between the agency’s 

major ‘media’ program offices for air, water, waste, and toxic substances.’’ That did not happen. 

In our opinion, many of the problems we see that impact the efficiency and effectiveness of Agency operations have their roots in 

EPA’s organization. We believe that the protection of the Nation’s 

waters can be improved by an EPA that is strategically aligned to 

consistently enforce environmental statutes and provide oversight 

over the State delegations. This is not an original issue. The challenge is not to evaluate whether the task is needed or what the design would be; the challenge is to actually get it done. 

57 

This concludes my prepared remarks. I would gladly answer any 

questions the Committee may have. 

Mr. OBERSTAR. Thank you very much, Mr. Najjum. Appreciate 

your testimony. 

Mr. Brown. 

Mr. BROWN. Thank you, Mr. Chairman and Members of the Committee. First, ECOS’s president, Mike Linder of Nebraska, couldn’t 

be here today because his State is having a special session of the 

legislature to deal with tax revenue shortages, which is, I am sorry 

to say, an all too familiar story around the Country that I hear 

from my members. Mike and Administrator Jackson shared leadership of the ECOS Compliance Committee only last year, and he 

very much wanted to be here and sends his apologies for not being 

able to. 

The Committee is interested in what we can do to improve enforcement in the Clean Water Act. We very much share that desire 

and we look forward to the rest of the testimony that will be given 

here today. 

One of the things that I hope you understand is that States do 

conduct 95 percent of the enforcement that is conducted between 

us and EPA. It is not a qualitative statement, it is a quantitative 

statement. But we are now living in an era not of doing more with 

less, but of doing less with less. 

There are three main points I want to make to you today, and 

that is, one, both the States and EPA have a role in enforcement, 

and we must work cooperatively if we are both going to succeed, 

and that is something that we very much want to do. Secondly, 

that States are committed to achieving full compliance for all regulated sources and keeping them in compliance, and we will use the 

full spectrum of environmental enforcement tools to do that. And 

the third point is that State enforcement is under duress due to reductions in funding from both Federal and State sources. 

ECOS understands that EPA’s Clean Water Act enforcement action plan, which was just released today—we haven’t had a chance 

to study it, but it contemplates using regional and State staff worksharing to utilize resources efficiently and maybe to ask States to 

certify data that goes to EPA. We think these are positive direction 

steps. We hope to work with EPA as we jointly implement that enforcement plan, and we anticipate doing that with them. 

From a State perspective, returning a facility to compliance to 

achieve clean water goals is our top priority. Enforcement occurs 

when compliance does not. But enforcement has many faces. For 

routine non-compliances, if there is such a thing—and we believe 

there is—States will often undertake so-called informal enforcement actions. 

Having done these myself, I assure you that most facilities do not 

consider them informal. Such actions may include oral and written 

warnings and voluntary compliance agreements, and the important 

thing about them is they return the facility to compliance quickly 

about 80 percent of the time. Such actions also cost the State agencies less than the so-called formal enforcement actions, which 

States also regularly use. 

Formal actions are, however, what EPA measures. This is part 

of the reason that State and EPA compliance data sometimes don’t 

58 

match, because if a State completes an informal action and returns 

a facility to compliance, but EPA was under the impression that a 

formal action was needed, it will still show that a formal action 

was never taken, even though the facility is actually in compliance. 

To the funding issue. State enforcement implementation is under 

duress for two reasons: because of the budget deficits that are occurring in 48 of the 50 States and in the territories, and because 

of lackluster Federal support. States are imposing hiring freezes, 

they are furloughing employees, and they are reducing enforcement 

staff. 

In the period 2001 to 2009, inflation ran at about 24 percent, but 

the increase in EPA’s operational grants to States only rose 11 percent. Federal support for State environmental agencies increased to 

an all-time high in 2009 thanks to ARRA, and we should see many 

compliance improvements over the next few years at municipal 

sources because of that. However, this increase did not extend to 

the operational funds that States use to implement the Act, including enforcement, and States receive no Federal grants that are 

dedicated to enforcement. 

Furthermore, during this period of 2001 to 2009, EPA issued 

hundreds of new rules which the States are expected to implement 

and which we are eager to implement. EPA has estimated—and 

you have heard this testimony earlier today—that as many as one 

million new sources will be regulated by the Clean Water Act. For 

example, over 60,000 vessels were added to the list of regulated facilities this year alone. New sources means more enforcement responsibilities under the Act. 

Finally, I agree with the Administrator that continuing uncertainty in the Clean Water Act due to several court cases has increased the difficulty in ascertaining jurisdictional authority over 

some polluters. ECOS has recommended steps to Congress to address this issue and worked with this Committee, and we continue 

to believe this is needed. 

I would be happy to take questions. 

Mr. OBERSTAR. Thank you very much. Very overall comprehensive review of matters. 

Mr. Porta. 

Mr. PORTA. Good afternoon now, Mr. Chairman and Members of 

the Committee. My name is Tom Porta. I am the Deputy Administrator for the Nevada Division of Environmental Protection and the 

current President of the Association of State and Interstate Water 

Pollution Control Administrators, or ASIWPCA, as we are known. 

I have been working in the State environmental quality programs for over 25 years. The members of my association appreciate 

the opportunity to provide testimony before you today regarding 

States’ administration of the Clean Water Act, particularly in the 

arenas of discharge, permit compliance, and enforcement. By far, 

the States and interstates do the lion’s share of work in protecting 

and improving the quality of our Nation’s waters. 

Our message to you today is that States are doing a good job enforcing the provisions of the Clean Water Act and should be commended, given the many constraints they work under. 

Recent headlines and news stories have highlighted potential 

Clean Water Act violations that have gone unchecked or unreVerDate Aug 31 2005 14:33 Mar 29, 2010 Jkt 000000 PO 00000 Frm 00070 Fmt 6602 Sfmt 6602 P:\DOCS\52881 JASON
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ported. While these situations warrant further investigation, they 

represent a small part of the compliance picture. It is important to 

consider other factors, including the total number of parameters 

permit holders are required to meet and report. 

In the short time we had to prepare for this hearing, we evaluated enforcement data from a handful of States. Additionally, we 

looked at effluent limit violations versus reporting violations. From 

the information compiled, the data shows compliance rates in excess of 99 percent when it comes to effluent violations and in excess 

of 95 percent when it comes to reporting violations. While this was 

only a sampling of States, I believe it is representative. 

That is not to say that all aspects of State compliance and enforcement programs are perfect. As with any environmental program, improvements can always be made. 

Administrator Jackson announced earlier this year her intent to 

improve on the Clean Water Act enforcement and compliance programs, and you heard her roll-out of the 90-day action plan this 

morning. ASIWPCA agrees that improvements should be made, 

and we have offered to closely work with EPA as co-regulators to 

make this initiative work, with the caveat that the expectations 

must be reasonable and will focus on adding value to our enforcement and compliance programs. 

So what should be done to enhance our States’ efforts and provide for effective State enforcement and compliance programs? We 

believe there are five elements to effective program, and they include the following: first, identify the problems before they become 

violations through technical and compliance assistance. EPA must 

rethink the value placed on compliance assistance as the current 

oversight framework is primarily focused on enforcement. Enforcement is necessary and has its place, but is not the sole measure 

of success for the water programs. 

Second, water quality violations are top priority. Paint an accurate picture of enforcement by redefining what truly is significant 

noncompliance. The current definition is too broad and includes 

minor paperwork in reporting violations that do not impact water 

quality. While minor violations are important, separating out these 

types of infractions would show a true depiction of enforcement actions that impact water quality. 

Third, when appropriate, resolve violations quickly through nonformal enforcement actions. A wide variety of administrative tools 

exist, from warning letters to consent decrees. These approaches 

often result in prompt compliance and more effectively use staff resources. 

Fourth, take enforcement actions when necessary. The authority 

to issue formal actions and assess penalties is provided in Federal 

and State statutes, as well as regulations. Formal enforcement actions should be reserved for cases involving illicit dischargers, recalcitrant behavior, and other significant violations. 

And fifth and finally, track enforcement and compliance with 

reasonable data systems. We can achieve greater levels of information accuracy and transparency with the use of electronic reporting 

and strategic data integration across States. This would be a significant benefit to States and EPA, given the ever-increasing number of new sources. 

60 

However, disincentives prevent full participation by the regulated community. As an example, the requirements for authenticating signatures for electronic filing are so onerous it is easier 

for permittees to submit their information by regular mail. The 

public should be able to easily obtain this information through a 

simple, accurate, and accessible database. Please note that enforcement information has always been available to the public through 

State records and databases, but the data has rarely been complete 

or accurate through Federal data systems. 

I have provided you with a few examples of problem areas in the 

Clean Water Act enforcement programs and suggestions for addressing these issues. In closing, ASIWPCA and its members look 

forward to working with Administrator Jackson and her staff to develop reasonable and sustainable measures to improve upon the 

success of compliance and enforcement programs. 

Thank you. That concludes my testimony. 

Mr. OBERSTAR. Thank you, Mr. Porta. Appreciate your participation and the information you have submitted. 

Mr. Rumpler. 

Mr. RUMPLER. Chairman Oberstar, Members of the Committee, 

good afternoon. My name is John Rumpler, Senior Attorney with 

Environment America. We are a federation of 27 State-based citizen supported environmental advocacy organizations, and in my 

role as senior attorney I coordinate our clean water advocacy work 

from Puget Sound to the Great Lakes to the Chesapeake Bay. Just 

as the previous two speakers have talked about, the great deal of 

our work is at the State level. 

And while we don’t exclusively focus on enforcement, we have 

worked on reducing the use of toxic chemicals, we have worked on 

runoff pollution, and a number of things. We have also been deeply 

involved directly in clean water enforcement. Most specifically, we 

have prevailed in 99 citizen suits to compel violators of Clean 

Water Act permits to curb their pollution and come in compliance 

with the law for our rivers, lakes, and streams. 

More systematically, we have done an overview of compliance of 

major facilities with their NPDES permits. I am afraid that our results paint a little bit of a different picture than Mr. Porta just represented. Now I want to note for the record that we were not talking about any paperwork violations. We were not talking about 

minor violations. We were talking about discharges of pollution in 

excess of limits set to protect water quality. 

Here is what we found in the year of 2005, and we had similar 

results in previous years when we did this assessment. Number 

one, the problem is widespread. Fifty-seven percent of major facilities violated at least one discharge limit that year. Overall, those 

facilities had 24,000 discharge exceedances, again exceeding limits 

to protect public health and the environment. 

Nor were these minor. Of these 24,000 violations of these permit 

limits, they averaged nearly four times the amount of pollution allowed under law. In many cases these were chronic repeat offenders. More than 600 of these facilities reported effluent violations 

again and again and again just in the year of 2005 alone. 

Indeed, the best indicator of whether we, America, the States, 

EPA, all of us, are doing a good job with the Clean Water Act is 

61 

whether our rivers, lakes, and streams are clean. Unfortunately, 

with so many polluters dumping so much pollution from direct 

sources into those waterways, it is not surprising to us that nearly 

half of our rivers and streams are not safe for fishing, drinking, or 

other uses. That is a fundamental problem. 

We offer the following solutions: We believe we need tougher enforcement, more resources, and to restore the protection of the 

Clean Water Act to all of America’s waterways. 

Tougher enforcement, it is time to put the environmental cop 

back on the beat. While there is some value to informal measures 

from time to time, the practical reality of the matter is that deterrence demands that penalties are certain, swift, and severe enough 

to ensure that pollution no longer pays. 

Moreover, we need to make sure that the underlying permits 

themselves are strong enough to protect water quality. The original 

Clean Water Act envisioned an end of direct discharges by 1985. 

We are nowhere near that. States are not systematically reviewing 

the permits and ratcheting down the permit levels. We need to 

toughen the permits to get to clean water. 

Now, all of this takes resources. I couldn’t agree more that our 

State agencies and EPA—all of us—need more resources to be able 

to do this job well. Possibly we should consider a mandatory permit 

fee scheme, which I think some of my colleagues can speak more 

specifically to. 

But in addition to money for enforcement agencies, we also need 

money for infrastructure. I want to applaud Congress and the 

Obama Administration for the $4 billion in Clean Water infrastructure money in the stimulus package. But we need to build on that 

if we are ever going to end sewage overflows. 

Finally, I would be remiss if I did not note to this Committee the 

need to make sure that all of our waterways are protected. There 

are many problems and challenges that we have here today but 

that is one that this Committee has the power to directly solve. 

I thank you for your time. Let me make one final note, Mr. 

Chairman. Next Thursday, a week from today, we will be releasing 

a new report documenting the millions of gallons of toxic chemicals 

discharged into our waterways using TRI data. 

Thank you. 

Mr. OBERSTAR. We will certainly look forward to that report. 

Thank you for your testimony and your stout defense of clean 

water. 

Now, Mr. Shimshack? 

Mr. SHIMSHACK. Mr. Chairman and distinguished Members of 

the Committee, thank you for the invitation to speak today. While 

there are many facets of water quality management, I will focus 

my remarks on understanding and strengthening the performance 

of Clean Water Act monitoring and enforcement from an independent research perspective. 

To fully appreciate the issues, it is useful to first provide some 

context. The first thing to note is that broadly characterizing Clean 

Water Act performance is challenging. Aggregate snapshots of 

Clean Water Act compliance are highly sensitive to the chosen 

measurement instrument. Some reasonable metrics suggest very 

high compliance while other reasonable metrics simultaneously 

62 

suggest low compliance. This may explain some of the differences 

in opinion here today. 

Second, regardless of how one defines noncompliance, enforcement activity is infrequent compared to the number of violations. 

Third, monetary penalties are especially rare and levied fines tend 

to be extremely modest relative to fines allowable under the law. 

Fourth, on average, enforcement activity is declining over time. 

Despite the relative scarcity of enforcement, a growing academic 

and policy literature shows that State and Federal Clean Water 

Act monitoring and enforcement actions, when actually used, are 

highly effective. The research evidence suggests that Clean Water 

Act inspections and sanctions generate substantial specific deterrence, meaning that inspections and enforcement actions consistently reduce future violations at the evaluated or sanctioned facility. Formal Clean Water enforcement actions and especially fines 

also generate substantial general deterrence. Here, sanctions spill 

over to deter violations at facilities beyond the sanctioned entity. 

The essential intuition is that an enforcement action at one facility 

enhances the regulator’s reputation for toughness across all facilities in the same State and sector. 

The evidence also suggests, perhaps surprisingly, that Clean 

Water Act enforcement actions not only meaningfully affect compliance but they meaningfully affect pollution discharges as well. 

When inspections and fines are deter violations, pollution is of 

course reduced. However, enforcement also encourages beyond compliance behavior. Facilities with discharges that are typically below 

their legally permitted levels often reduce discharges further when 

the regulatory threat increases. Also, likely non-compliant facilities 

often respond to increased regulatory threats by reducing discharges beyond those required simply to meet statutory limits. 

To reiterate, the published evidence suggests that Clean Water 

Act monitoring and enforcement actions, when used, importantly 

influence both compliance and pollution. Several implications follow. 

First, a substantial improvement in environmental performance 

may be achieved with a modest additional investment in traditional monitoring and enforcement activity. The speed and strength 

of observed pollution responses to relatively small changes in the 

likelihood of enforcement suggests that regulated entities can increase their current environmental performance without incurring 

large capital costs such as those required by installing new equipment. 

Second, a substantial improvement in environmental performance may be achieved with a modest additional investment in enforcement stringency. The evidence suggests, perhaps not surprisingly, that more stringent penalties deter more violations and reduce more pollution. The research evidence on informal actions, in 

contrast, is quite mixed. A reallocation of discretionary enforcement 

resources towards more rigorous sanctions may enhance performance. 

Third, improving the performance of the Clean Water Act may 

not require sweeping changes. Policy observers increasingly advocate for voluntary, cooperative, informational, or other alternative 

63 

approaches to water pollution management. The published evidence on the effectiveness of these approaches is mixed. 

In contrast, the evidence for important deterrence effects from 

traditional enforcement is quite strong. In my opinion, greater and 

more nuanced use of our current tools will have predictable and 

meaningful results for environmental quality. The potential impacts of more radical changes are poorly understood. 

Fourth, environmental regulators should consider more vigorously publicizing their enforcement actions. Spillover effects of 

sanctions on non-sanctioned facilities require that companies know 

about monitoring and enforcement actions at other companies. 

State and EPA authorities should consider pilot programs that 

publicize sector-specific enforcement details. 

Finally, Congress, EPA, and the States should facilitate more research on environmental enforcement and compliance through enhanced research funding and improved data access. 

Mr. Chairman and Committee Members, it is an honor to be here 

today. Thank you for the opportunity. 

Mr. OBERSTAR. We are glad to have you. Thank you. 

Mr. Schaeffer? 

Mr. SCHAEFFER. Thank you, Mr. Chairman and Members of the 

Committee, for the opportunity to testify today. I am Eric Schaeffer, Director of the Environmental Integrity Project. We are a nonprofit organization that advocates for more effective enforcement of 

Federal law. Formerly I worked in the enforcement program at 

EPA. 

First and foremost, let me thank you for holding this hearing. I 

think, and many others think, that the Clean Water Act is one of 

the best things Congress ever did. But as you have heard today 

and as you have said yourselves, we have a lot of work left to do. 

The law’s implementation needs your attention. So your oversight 

is very, very welcome and I think it will do a lot of good. 

As we have already heard, State agencies do bear most of the responsibility for writing and enforcing Clean Water Act permits 

under grants of authority from EPA. It is just a fact that some 

States do a reasonably good job carrying out those responsibilities 

while others have not. The Agency has got to step up oversight of 

State agencies where the States are either not able or willing to do 

the job. That is the only way we are going to make sure that all 

citizens have access to clean water, and that we get the level playing field that the law is actually supposed to provide. 

This is difficult, grinding work. We certainly need EPA to work 

in partnership with the States and give them assistance where 

they need it. But there are times when EPA has to say that what 

we are seeing from this particular agency on this issue is not good 

enough. That is just very difficult to do. 

EPA has to methodically look at permits, and sometimes object 

to bad permits. It certainly needs to be ready to take enforcement 

action where the States aren’t doing it, or won’t do it. 

We also need regular program reviews to see how not only State 

agencies are doing, but how EPA regional offices are doing. Perhaps that function ought to be set up and standardized at the Inspector General’s Office so that you can get the kind of arm’s 

64 

length audit of the program to decide whether things are going in 

the right direction. 

Now, I agree with what we have heard from Mr. Brown. It is 

very difficult, impossible really, for States to run a complex Federal 

program like the Clean Water Act without adequate resources. 

States are badly under-funded. You spoke earlier, Mr. Chairman, 

and other Members of the Committee did as well, about stepping 

up public financing of wastewater treatment plants. That is critical, and I hope you are successful in that effort. But we also need 

to find a way to pay for the State agencies’ staff that do the hard 

work of reading the permits, writing the permits, dealing with public comments, and carrying out the enforcement actions. 

Under the Clean Air Act, the Congress requires States to assess 

emission fees that are actually adequate to cover State program 

costs. That is a requirement in Federal law. It has worked pretty 

well. State air programs, while there is never quite enough money, 

are largely self-financed now through those emission fees. Perhaps 

you could consider the same thing under the Clean Water Act. 

That would be a Federal mandate to assess fees on the big dischargers that are high enough to pay for program costs. 

I will put in a plug for electronic data. I agree with Mr. Porta 

that we are in the electronic age. Information about violations and 

about discharges ought to be readily available on EPA’s website 

and on State websites. EPA has tried to make this happen through 

the ECHO database. I should say that this was an initiative started under the Clinton Administration but strongly supported under 

the Bush Administration, to its credit, so it has a bipartisan track 

record. Certainly it can be improved. EPA will need State cooperation. Some data is not entered that ought to be into that national 

database. We need to get States to do that. 

I think the last point I will try to make quickly is that it is good, 

with all the complexities about trying to measure compliance and 

how we are doing, to just remember the first principles that ought 

to really underlie any law but are certainly true of the Clean Water 

Act: Polluters ought to pay for their violations. The more you pollute, the more you should have to pay. 

I have attached at the back of my testimony an example of effluent discharges at major power plants. As you can see, these are 

companies that are regularly reporting that they exceed their permit limits by a factor of 20 or 30 times. In other words, their discharges are 20, 30, 40 times what the permits actually allow. By 

all means, let us not waste our time with minor paperwork. There 

are plenty of large polluters that I think today are going 

unpunished. Basically, there is not really much of an enforcement 

response. 

I have taken this data from EPA’s website. If it is correct, I 

would encourage you to follow up and ask EPA and the State agencies where these plants are located what they plan to do about 

these facilities. What is the enforcement status? Has anyone issued 

a notice of violation? How much are they going to pay? There are 

many other examples in the database that you could use. Focus on 

the illegal discharges, as everybody I think here has suggested, and 

I think you will find plenty of work to do. 

Thank you very much for the opportunity to testify. 

65 

Mr. OBERSTAR. Thank you, Mr. Schaeffer. I appreciate your testimony as well. 

All witnesses have covered a wide range of issues of importance 

in this review of the EPA enforcement program. 

The law seems clear that economic benefit from a violation of the 

Clean Water Act should be recaptured in the enforcement both— 

I said this at the outset—to reduce the incentive or the temptation 

to pollute but also as a deterrence. How do you calculate economic 

benefits? Can the GAO do an assessment of that issue? Is this 

being done? Is that aspect of the Act being carried out? 

Ms. MITTAL. We didn’t actually do an assessment of how the penalties are being calculated. What we did find is that it is a very 

subjective process and different States do it differently. Some 

States have the authority to assess the economic benefit, some 

States do not. So what we found are huge variations in how the 

States were actually making the calculations of the penalty. 

Mr. OBERSTAR. Do others have a comment on that issue? Mr. 

Porta? 

Mr. PORTA. Yes. EPA has what they call the BEN Model. It is 

an economic benefit model. In our State when we have run the 

model or tried to get the data to run the model, it comes up with 

a number that is fairly exorbitant for the smallest violation, in the 

six and seven figure range. So there is the tool out there but I 

would think the tool would need to be refined. 

To gather the data to determine economic benefit from a company, it is not easy. It is not an easy task to try to find out through 

tax records or what have you what their actual economic benefit 

was by going over the limit. 

So it is not an easy task to do but there is a tool that EPA has. 

I think it definitely needs refinement. 

Mr. OBERSTAR. This notion of benefits and costs runs through a 

number of programs under the jurisdiction of this Committee, including that of the Corps of Engineers and also the Federal Transit 

Agency. In the previous Administration, they used benefits analysis 

to deny projects or slow down transit projects by including some 

costs and excluding other benefits. 

I think what GAO is saying is that there is an inconsistency. In 

fact, the thrust of your testimony is that the whole management 

of the EPA program is shot through with inconsistencies. 

Ms. MITTAL. That is correct. We believe that there is a lot of inconsistency in how the whole enforcement program is being managed by EPA. 

One of the biggest concerns we have is that they do not have the 

data that they need to find out what is causing these inconsistencies. Are these inconsistencies bad, are they okay? Is it all right 

for the States to continue to have inconsistent enforcement of the 

Act? 

We don’t think inconsistency is a good thing. We believe that 

EPA should have some fundamental, basic principles to ensure that 

all State programs will provide a certain minimum level of enforcement. But right now they don’t have the data to find out what is 

causing all of these variations in the State programs. 

Mr. OBERSTAR. I just made note of the various kinds of inconsistencies. You said the enforcement varies on inspection for facilities. 

66 

Penalties vary by region. There is varied enforcement by region. 

There are different strategies for oversight by region. There are differences in State laws. That is something that EPA should work to 

develop consistency in, though not totally because water situations 

differ from place to place. Funding by EPA regions varies. Data on 

enforcement is incomplete and inadequate. That is a sorry state of 

affairs at EPA and one that leads to discrediting the program. 

Ms. MITTAL. Well, we are very concerned about it, sir. The variations are in and of themselves not bad. That is what we try to emphasize. Sometimes you need to have variations because you have 

got local conditions, you have got local concerns. You have got to 

have a program that is flexible enough to address all of these concerns. The problem is when we look behind those variations. 

EPA could not provide us good information on what was causing 

those variations. We had to do that analysis ourselves. When we 

look at what causes those variations, that is what leads to inconsistency. We believe that inconsistency is bad. 

Mr. OBERSTAR. One of the thrusts of the Clean Water Act—we 

will go back to 1971 and 1972 when we were shaping the bill in 

this very Committee room and then the House-Senate conference— 

was that a whole range of industries, the chemical industries, manufacturing of various kinds, and processing, supported the notion 

of the Clean Water Act because they wanted consistency among the 

States. They did not want to have runaway pollution-friendly 

States where their competitors could seek comfort while they were 

locked in a State that has high standards and couldn’t go to another one that has low standards or no standards. That was the 

thrust of the conferees, both House and Senate, establishing consistency. Now you are saying that consistency has deteriorated. 

Mr. Brown? 

Mr. BROWN. ECOS also had a concern about the consistency back 

in 2005 when we proposed the State Review Framework to EPA. 

I think it is probably fair to say that it is no longer in development, 

but we are in the process now of doing the second tier of those. The 

first tier clearly was a learning experience for everyone involved. 

But it was because States were concerned about some of the inconsistencies that Ms. Mittal mentioned. So we agree, they need to be 

reconciled. We are hoping the other SRF, as we call it, the State 

Review Framework for enforcement, will help reveal those and 

eliminate them. 

Mr. OBERSTAR. Mr. Najjum? 

Mr. NAJJUM. Thank you, Mr. Chairman. We agree with a lot of 

what GAO has found in terms of inconsistency in policy across the 

regions. It is one of the things that we note constantly when we 

are looking at a national program and go out to see how it is being 

enforced and what is actually happening. 

We find that it is more of a symptom. The symptom is a lack of 

a national concept of what it is that EPA would like the regions 

to do. When they talk about flexibility, we find often that the flexibility is that there aren’t really any rules. You are leaving it up to 

each of the regions to independently determine how they will actually enforce. When you have ten regions determining how they will 

enforce, recognizing that sometimes you do need to have some local 

thoughts in there, you really have a mishmash of enforcement 

67 

sometimes. The flexibility reaches a point where it can become 

chaos. 

Mr. OBERSTAR. Thank you very much. 

I yield now to Mr. Boozman. 

Mr. BOOZMAN. Thank you, Mr. Chairman. It sounds like we all 

agree, then, that we need much better data coming from EPA so 

we can evaluate what the problems actually are. 

I think you all found that there is inconsistency in enforcement. 

Yet, as was stated, sometimes there is a reason. Individual locations vary so there is going to be some inconsistency. But when you 

go back to the reason for that, the logic ought to be the same in 

every place. We can agree on that. The enforcement piece, that we 

have more consistent enforcement throughout the regions, I think 

we can agree on that. 

The other thing that I see is that there is inconsistent logic and 

inconsistent science behind some of the enforcement. Instead of 

things that are reasonable or that can be done where it is manageable from an expense standpoint, sometimes we get into such stringent enforcement. You can do a tremendous amount of good by enforcing in some manner. Then you get down and you get way below 

that and the cost becomes just so expensive that it becomes a real 

problem. 

I was visiting with the Chairman as we were sitting here earlier. 

I am here at all these hearings. I know all about the Chesapeake. 

I know all about all of our different water bodies now and their 

problems. One of the things I am hearing from Members more and 

more, though, is that they are getting these things thrust upon 

them that their constituents just can’t meet in terms of the standards. Somebody mentioned earlier, I think Mr. Latta, that they 

would be better off just buying the communities out because the 

standard is so tough that they just can’t meet it. If we have that 

trend continue, we are going to lose Congressional support. I really 

fear for that as we start doing that. You guys who are involved in 

these studies can understand that. That is a real, real problem. 

I guess what I would like to do is see what else we can, again, 

those three things that I mentioned with the enforcement piece, 

being more consistent, and better data, what else we can agree on 

that we can go forward with. Mr. Brown? 

Mr. BROWN. I think you have a good list, but I would add one 

thing to the data part. It is not enough that we have a good exchange of data, that the data is clear, and that we agree on it. We 

also have to agree on how to interpret that data. That is something 

we have never really talked about much. We need to have methodologies of data interpretation that are defensible and that are 

based on good statistics. Many of the things that Dr. Shimshack 

said, I completely agreed with. You can look at the same data and 

come up with widely varying conclusions if you don’t use good techniques for reviewing that data. That is something I think we also 

need to have. 

Mr. BOOZMAN. Well, that is one of the leading causes, probably, 

of the inconsistency of enforcement in different regions. As you say, 

that data can mean different things to different regions and lead 

to different remedies. But I agree with you very much. So in that 

sense we need better science as to what that really means. 

68 

What else can we agree on? Yes, sir? 

Mr. SCHAEFFER. Congressman, just reacting to Mr. Brown’s response, I am all for better methodologies and finer statistics but I 

want to make sure we don’t over-complicate the problem. For about 

40 years, the law has required facilities to report their discharges. 

Those discharge limits that facilities have to meet are set in permits. Those are more often than not economically sensitive. They 

are set to be affordable. I think we don’t need a lot of work on 

methodology to agree that if you are 20 or 30 times over your limit, 

something ought to be done. That is a serious violation and there 

ought to be a response. I am hoping we can at least agree on that. 

I understand there are issues with whether or not paperwork 

violations ought to have the agencies’ attention. I just want to reiterate that we have lots and lots of information about discharges 

that are way over permit limits. The question in those cases is not 

whether enforcement is consistent or what are the differences in 

enforcement response? There is no enforcement at all. I hope that 

gets the Committee’s attention as well. 

Mr. BOOZMAN. I agree. Certainly, all crimes are not the same. 

Certainly those need to be enforced. Some of them really need to 

be enforced, I am sure. 

Yes, sir? 

Mr. PORTA. When the New York Times article came out, obviously the States looked at their own enforcement and compliance 

data. I just want to give you an idea for that same four year period 

that the New York Times looked at in the State of Utah. Over four 

years they had 116 permitted facilities. There was a potential for 

effluent violations 236,976 times in that four year period. To have 

a compliance rate of 99.3, those are the data and percentages that 

I look at. 

If you have got that many potential points to violate, inevitably 

you are going to violate a standard at some point either through 

a plant malfunction or a system operator mistake. It is going to 

happen. Literally, the number of points for potential effluent violations throughout the Country is in the millions every year. 

Mr. BOOZMAN. Very good. 

Thank you, Mr. Chairman. I hope that in working together on 

these things that we have agreed upon, the data piece and things 

like that, that we can get together and figure out either through 

oversight or legislation how to help EPA. It might be that we are 

just not giving them the resources that we might need to do a better job of oversight. But these things that we all seem to agree on 

we need to get straight. 

Mr. OBERSTAR. Thank you for that comment. This is the beginning of that process of inquiry and understanding, of establishing 

a database, finding the shortcomings, and then proceeding from 

there on how we ought to correct them. 

Mr. Taylor, the gentleman from Mississippi? 

Mr. TAYLOR. I will pass. 

Mr. OBERSTAR. You can’t pass. You are the only one who hasn’t 

spoken. 

Mr. TAYLOR. Mr. Chairman, I am very much aware that two 

thirds of the continental United States drains down the Mississippi 

69 

River. When the wind blows out of the west, it goes right in front 

of my district. 

I am very much appreciative for your efforts to remind everyone 

that water moves from place to place. Pollution in one State ends 

up in another State. The dead zone in the Gulf of Mexico is very 

much a result of the over-use of fertilizers in some States and the 

levies along the Mississippi taking what used to flow into the 

marshes naturally and channeling it all into the Gulf. 

So I support your efforts. I understand where you are coming 

from. I welcome these folks’ thoughts as we try to do this right. 

Mr. OBERSTAR. I thank the gentleman for that observation. My 

wife is from Louisiana, as Mr. Taylor knows. The Mississippi begins in my State, if not exactly in my district, and I have said we 

and the other ten States along the Mississippi are responsible, the 

Ohio, the Illinois, the Missouri River systems, for all the debris 

that wind up in Mississippi and Louisiana. Jean sometimes jokes 

that that is the reason their bread is so good, that it is taken from 

such sturdy water with all the flavors of the 11 States that drain 

into the Gulf of Mexico. 

Mr. TAYLOR. Mr. Chairman, it has a lot more to do with the oysters we harvest than the bread that is produced in someone else’s 

State. That is why I have great empathy for the clam fisherman 

who was here a little while ago. Obviously all of that is a function 

of whether or not those industries will thrive and survive or will 

go out of business. 

Mr. OBERSTAR. Thank you. 

The Inspector General’s testimony, Mr. Najjum, refers to a separation between media programs and functional categories. It was 

the intent of the Act that the program be administered according 

to water, air, pesticide, radiation, solid waste and so on. A few 

years later during the Nixon Administration these were all combined into functional categories which made the operation of the 

program difficult. Could you unwind that for us and tell us how we 

can get back to that in your experience and your overview of the 

program? 

Mr. NAJJUM. I am not sure I can unwind it completely. What we 

have noticed in looking at the stovepipes within EPA as we look 

at each of the programs, we think that there is a better use of resources in a functional basis particularly for enforcement. We mention the original 1970 memo on the Government reorganization. I 

think it was the Ash Council. 

Mr. OBERSTAR. The Ash Council is right, correct. 

Mr. NAJJUM. I am probably not the right one to be talking to you 

about the history of the Environmental Protection Agency. But the 

Agency’s own history said that when they looked at it, they were 

organizing and combining functions, they had decided at that time 

that organizing by media was not the correct way to go. They had 

a three phase plan to get to it. They got through the second phase 

and the third phase became too hard because of the issues they 

were facing. It has come up again and again. 

We look at it from a point of view much like Goldwater-Nichols 

in the Department of Defense where you had to take the three 

services and organize them into a modern-day Department of Defense that actually does its mission. I worked for DOD back in the 

70 

1980s and 1990s. That was a hard, hard thing. DOD would never 

have done that itself. I think we also have seen the quadrennial 

review that Homeland Security has taken on. 

Look at the organization from a mission perspective of what it 

is that you would like the Environmental Protection Agency to accomplish and how it should go about accomplishing it. Part of that 

may be the electronic infrastructure we talk about in terms of 

bringing information together. You certainly don’t need to filter 

that through ten different regions. Maybe in 1970 we did but in 

2010 we don’t. We have a whole different electronic infrastructure. 

EPA’s infrastructure has pretty much been organized along media 

lines and not a functional line. 

So we think there are some big resource savings in organization 

and infrastructure. 

Mr. OBERSTAR. That is an administrative adjustment that can be 

made? 

Mr. NAJJUM. Correct. 

Mr. OBERSTAR. Mr. Rumpler, you made a very important distinction about enforcing discharge of pollutants versus enforcement on 

paper or reporting violations. Where does one end and the other 

begin? Where does paper end? Where does technical violation end 

and where does polluting of the waters begin? 

Mr. RUMPLER. Well, I think it is quite simple. In terms of the 

discharge monitoring reports that the facilities themselves are required to submit to the State agencies and the EPA in those cases 

where EPA administers directly, on those forms they indicate exactly how much pollution of each type that is regulated they are 

putting into the water body. So these are self-admitted exceedances 

of a clearly defined pollution limit in the permit. 

Let me just say before we completely dismiss so-called paperwork 

or reporting problems that while I agree with all of my colleagues 

here that they are a less important priority than the obvious discharge of pollutants in excess of permit limits, it is possible that 

failure to report is masking substantive violations. 

Mr. OBERSTAR. Well, that is what I am getting at. 

Mr. RUMPLER. We just won’t ever know. I do believe that in California there are actually small but mandatory minimum penalties 

even for reporting violations to ensure that those reports are routinely and regularly put through. Because they are mandatory 

minimums that are administratively assessed, they take very little 

agency resources to do. So I am not suggesting that we should put 

a lot of agency resources into this. But there may be an automated 

way to clean up some of that stuff in addition to, of course, focusing 

most of the agency resources on the substantive pollution that is 

coming up. 

Mr. OBERSTAR. In aviation we place a heavy reliance on data and 

the paper trail of maintenance actions. Absence of reporting often 

leads to an absence of maintenance with the resulting failure of a 

part and a crash and fatalities. 

We have two minutes before we have to go—we probably should 

be leaving right now—so I want to make sure that I yield to Mr. 

Boozman. 

Mr. BOOZMAN. I just very quickly want to say, because we do 

have to go, that the Federal Government under the past two PresiVerDate Aug 31 2005 14:33 Mar 29, 2010 Jkt 000000 PO 00000 Frm 00082 Fmt 6602 Sfmt 6602 P:\DOCS\52881 JASON
71 

dents has put a little bit more money into enforcement. In the 

States, is their enforcement money going down or is it staying the 

same as far as their budgets? 

Mr. BROWN. Well, it is tough to say because we don’t separate 

enforcement out from all the rest of it. As I said in my testimony, 

we don’t—— 

Mr. BOOZMAN. How about all of it? 

Mr. BROWN. You mean overall? It is going down right now, overall. That is not just for environment but across State government. 

Mr. BOOZMAN. That is a problem. It is difficult for them to go 

down and then for us to take up the slack. So that is something 

else I think we need to look at, Mr. Chairman. 

Mr. OBERSTAR. Thank you very much, Mr. Boozman. I just want 

to say that we provided funding for State enforcement actions in 

the State Revolving Loan Fund bill that passed the Congress in the 

110th. We have it again in this year’s version of that bill. I also 

included such funding in the House version of the stimulus bill but 

it didn’t make it through conference. 

Mr. Porta, you had something to add? 

Mr. PORTA. Yes, just real quickly. With the States’ economic situation, obviously as water administrators we have to make decisions. As the funding goes down, the first people we typically will 

look at are the data gatherers. I would rather have inspectors in 

the field than permit writers in terms of paying for those positions. 

So typically data is unfortunately a lower priority. 

With regard to Mr. Rumpler’s comment about reporting, it is 

very significant. My response to him would be that if there are reporting violations, you deal with that. Once the reports come in, 

then if there are effluent violations, you deal with that. It is not 

like these are neglected. 

On the effluent violations, sometimes we are dealing with very 

small overages of the standard. Therefore, how do you deal with 

that? Do you bring out the heavy guns and assess a huge penalty 

because they were slightly over for iron but may have not affected 

the water quality? 

Mr. OBERSTAR. I have to interrupt you at that point, Mr. Porta, 

because we are down to zero. We have to get over to the Floor to 

vote. I have a series of other Committee activities before I rap the 

gavel. 

I just want to observe that Mr. Shimshack discussed issues of 

publication of enforcement action, data access, research funding, 

and traditional monitoring. Mr. Schaeffer discussed oversight of 

State programs and State agency staffing, which Mr. Porta has 

also referred to. That, combined with the inconsistency in enforcement and the functional problems within the program, is enough 

for us to continue a serious oversight of the EPA enforcement program. We will continue that work all throughout this session and 

the next session of Congress. We will impress upon the Agency 

those changes that can be done administratively and, where necessary, we will take legislative action. 

We appreciate your participation and the contributions that all 

of you have made to a deeper understanding of the state of our enforcement of EPA programs. Thank you very much. 

The Committee is adjourned. 

72 

[Whereupon, at 2:45 p.m., the Committee was adjourned.] 

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