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S. HRG. 114–203 

OVERSIGHT OF THE ARMY CORPS OF ENGINEERS’ 

PARTICIPATION IN THE DEVELOPMENT OF THE 

NEW REGULATORY DEFINITION OF ‘‘WATERS 

OF THE UNITED STATES’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON FISHERIES, 

WATER, AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 30, 2015 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

SUBCOMMITTEE ON FISHERIES, WATER, AND WILDLIFE

DAN SULLIVAN, Alaska, Chairman 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

JAMES M. INHOFE, Oklahoma (ex officio) 

SHELDON WHITEHOUSE, Rhode Island 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

BARBARA BOXER, California (ex officio) 
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C O N T E N T S 

Page 

SEPTEMBER 30, 2015 

OPENING STATEMENTS 

Sullivan, Hon. Dan, U.S. Senator from the State of Alaska ................................ 1 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, prepared 

statement .............................................................................................................. 112 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ......... 137 

WITNESS 

Darcy, Jo-Ellen, U.S. Assistant Secretary of the Army ........................................ 113 

Prepared statement .......................................................................................... 115 

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 120 

Senator Rounds ......................................................................................... 128 

Senator Fischer ......................................................................................... 130 

Senator Carper .......................................................................................... 133 

ADDITIONAL MATERIAL 

Letter to Jo-Ellen Darcy from Senator Inhofe, July 6, 2015 ................................ 156 

Letter to Jo-Ellen Darcy from Senator Inhofe, July 27, 2015 .............................. 161 

Letter to Senator Inhofe from Jo-Ellen Darcy, received August 28, 2015 .......... 169 

(1) 

OVERSIGHT OF THE ARMY CORPS OF ENGINEERS’ PARTICIPATION IN THE DEVELOPMENT OF THE NEW REGULATORY DEFINITION OF ‘‘WATERS OF THE UNITED STATES’’ 

WEDNESDAY, SEPTEMBER 30, 2015 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON FISHERIES, WATER, AND WILDLIFE, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 10:32 a.m. in room 

406, Dirksen Senate Office Building, Hon. Dan Sullivan (chairman 

of the subcommittee) presiding. 

Present: Senators Sullivan, Whitehouse, Barrasso, Capito, Wicker, Fischer, Rounds, Inhofe, Cardin, and Markey. 

OPENING STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM THE STATE OF ALASKA 

Senator SULLIVAN. The Subcommittee on Fisheries, Water, and 

Wildlife will now come to order. 

And just for the record, it is, according to my clock, 10:32. So we 

have been trying to gather up all the members here, but we also 

want to be respectful to the witnesses to start this relatively in a 

timely fashion. 

Good morning. The purpose of this hearing is to explore whether 

the experience and expertise of the Army Corps of Engineers provide support for the recently finalized rule that changes the regulatory definition of ‘‘waters of the United States’’ under the Clean 

Water Act. 

Congress has the constitutional authority, indeed the obligation, 

to conduct oversight actions of executive branch agencies, particularly on issues as controversial as the waters of the U.S., which 

now is opposed by 31 States. 

For too long, many of us believed that the Congress has not focused on these important issues, and in some ways looked the 

other way with executive branch agencies taking actions that do 

not conform with the law. We are changing that. 

Oversight is particularly important when we have a pattern of 

behavior from certain agencies, like the EPA, of consistently 

issuing rules that completely disregard the limits of their authority 

imposed by Congress. In fact, on June 26, just 3 days before the 

Supreme Court overturned the EPA’s Mercury and Air Toxic Rule 

under the Clean Air Act, EPA Administrator McCarthy literally 

bragged on TV, on an HBO show, that the Supreme Court’s deci-
2 

sion ultimately would not matter because it took 3 years to get to 

the Supreme Court and, by then, most people subject to the rule 

had to abide by it anyways. ‘‘Investments have already been made,’’ 

she said. 

This is in addition to an agency that consistently loses court 

cases in the Supreme Court, and constituents certainly across Alaska, but I think all across America, Democrats and Republicans, believe that the EPA is a rogue agency accountable to no one. We see 

it in my State on issues like CD–5, GMT–1, where other agencies 

are told by the EPA what to do. 

Now, I have the utmost respect for the Corps of Engineers. I 

have worked with them for years, the civilian and military members of that organization. But the arrogance and disregard for the 

law that are evident in the WOTUS rule is something that is imperative that the Congress conduct oversight hearings with regard 

to that rule. 

It’s no secret that many of us think that the final WOTUS rule 

goes far beyond the authority granted by Congress. At a hearing 

back on March 4th, I asked Administrator McCarthy for her legal 

analysis that supports the rule. There was no response. On July 

14th, the chairman of this committee, Chairman Inhofe, and my 

Republican committee colleagues joined in a letter asking again for 

the legal analysis of the WOTUS rule. No response. We received 

nothing. 

All of my colleagues, whether Republicans or Democrats, on this 

committee and in the U.S. Senate should be concerned about such 

arrogance with regard to our constitutional duties to conduct oversight of this agency. 

Today, we are focusing on the factual record for the WOTUS 

rule. Whatever your views on the limit of authority under the 

Clean Water Act, we should all be able to agree that an agency 

rulemaking must be supported by a factual record. This might 

sound like a technical issue to some, but it is not. 

In numerous places, the preamble of the final WOTUS rule 

states that the rule’s requirements are based on the science, agency 

expertise and experience, and case-specific jurisdictional determinations. To understand what documents the preamble is referring back to, in July, Chairman Inhofe sent a letter to the EPA 

asking for copies of the scientific studies that agencies relied on 

with regard to supporting this rule in a letter to Secretary Darcy 

asking for examples of the case-specific determinations the agencies relied on. 

EPA has not yet identified any specific scientific studies in response to Chairman Inhofe’s letter. We are awaiting a response, as 

well as a response to our longstanding request for a legal analysis 

before scheduling a hearing with the EPA. 

Secretary Darcy has responded to Chairman Inhofe’s letter by 

candidly admitting that the WOTUS rule is not, I repeat, not based 

on the case-specific jurisdictional determinations of the Corps, even 

though the preamble to the rule makes that claim. She had to 

make that admission because, as we now know from memoranda 

prepared by Corps career staff that have been provided to the EPW 

Committee, case-specific jurisdictional determinations that provide 

a basis for the WOTUS rule do not exist. 
3 

I would hope that all members of this subcommittee agree that 

when agencies make claims about a rulemaking record that are 

flatly contradicted by senior staff within an agency, that is a cause 

for concern. That is a cause for concern on how our Federal Government functions. That is a cause for concern that is worthy of the 

oversight of this committee. In fact, it strikes at the heart of the 

integrity of the rulemaking process, and I believe, our representative form of Government. 

I am not talking about legal interpretations or policy disputes. 

What we are focused on today are statements that the agencies 

presented as facts that, according to memoranda written by technical experts in the Corps of Engineers, are simply not true. 

I understand that this hearing puts Secretary Darcy in a somewhat awkward position, and I appreciate her willingness to testify 

today. We recognize that the EPA may have been in the driver’s 

seat in developing the legally questionable WOTUS rule, but Assistant Secretary Darcy signed the rule, along with Administrator 

McCarthy. She, as well as EPA, is responsible for the veracity of 

the claims that the rule makes that is of concern to literally millions of Americans right now. 

I was surprised to learn of the degree of conflict between the two 

agencies. To me, this is further confirmation that the EPA is truly 

an agency that answers to no one. That needs to change. 

I appreciate Ms. Darcy’s willingness to do the right thing by 

sharing those memoranda with the committee as part of our oversight responsibilities. I also appreciate her willingness to appear 

before the subcommittee, a committee that she knows well, to discuss the Corps’ participation in the Waters of the U.S. rule. 

Finally, I want to remind her, respectfully, that we expect her to 

be candid in her answers. This subcommittee will not accept any 

attempts to evade answering questions based on claims of executive 

branch confidentiality interests, deliberative process privilege, or 

ongoing litigation. While these excuses may work in responding to 

FOIA requests or in defending litigation, they are not the basis of 

withholding information and truthful answers from the Congress of 

the United States. 

It is important that Congress hear directly from you, Secretary 

Darcy, about why the views of your technical experts at a very senior level, as we all know, were largely ignored, and why the record 

of the WOTUS rulemaking and the Corps memos contradict statements made in the final rule published to the American people. 

I am placing the Corps’ memos in the record for this hearing. 

Without objection, so ordered. 

[The referenced documents follow:] 
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Senator SULLIVAN. Mr. Chairman, you are recognized, if you 

would like to make an opening statement. 

[The prepared statement of Senator Sullivan follows:] 

STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM THE STATE OF ALASKA

Good morning. The purpose of this hearing is to explore whether the experience 

and expertise of the Army Corps of Engineers provides support for the recently finalized rule that changes the regulatory definition of ‘‘waters of the United States’’ 

under the Clean Water Act. 

Congress has the constitutional authority, and indeed obligation, to conduct oversight of the actions of executive branch agencies. 

Oversight is particularly important when we have a pattern of behavior from certain agencies, like EPA, of consistently issuing rules that completely disregard the 

limits on their authority imposed by Congress. In fact, on June 26, just 3 days before the Supreme Court overturned EPA’s Mercury and Air Toxics Rule, EPA Administrator McCarthy bragged to HBO’s Bill Maher that the Supreme Court’s decision would not matter because it took 3 years to get to the Supreme Court, and by 

then most facilities were already in compliance—‘‘investments have been made.’’ 

This arrogance and disregard for the law are evident in the WOTUS rule as well. 

It’s no secret that I think that the final WOTUS rule goes far beyond the authority granted by Congress. At a hearing back on March 4th, I asked Administrator 

McCarthy for her legal analysis that supports the rule. No response. On July 14th, 

Senator Inhofe and my Republican committee colleagues joined me in a letter asking 

again for that legal analysis. We never received it. 

Today, we are focusing on the factual record for the WOTUS rule. Whatever your 

views are on the limits of authority under the Clean Water Act, we all should be 

able to agree that an agency rulemaking must be supported by a factual record. 

In numerous places, the preamble to the final rule states that the rule’s requirements are based on the science, agency expertise and experience, and case-specific 

jurisdictional determinations. 

To understand what documents the preamble is referring to, back in July Chairman Inhofe sent a letter to EPA asking for copies of the scientific studies that the 

agencies relied on and a letter to Secretary Darcy asking for the examples of casespecific determinations that the agencies relied on. 

EPA has not yet identified any specific scientific studies in response to Chairman 

Inhofe’s letter. We are waiting for that response as well as a response to our longstanding request for a legal analysis before scheduling a hearing with EPA. 

Secretary Darcy has responded to Chairman Inhofe’s letter by candidly admitting 

that the final WOTUS rule is not based on the case-specific jurisdictional determinations of the Corps—even though the preamble to the final rule makes that claim. 

She had to make that admission because, as we now know from memoranda prepared by Corps career staff that have been provided to the EPW Committee, casespecific jurisdictional determinations that provide a basis for the WOTUS rule do 

not exist. 

I would hope that all members of this subcommittee agree that when agencies 

make claims about a rulemaking record that are flatly contradicted by senior career 

staff within an agency, that is cause for concern. In fact, that strikes at the heart 

of the integrity of the rulemaking process. 

I am not talking about legal interpretations or policy disputes. I am talking about 

statements the agencies presented as facts that, according to memoranda written 

by technical experts in the Corps of Engineers, are simply not true. 

I understand that this hearing puts Ms. Darcy in an awkward position. EPA may 

have been in the driver’s seat in developing the legally questionable WOTUS rule, 

but Assistant Secretary Darcy signed this rule along with Administrator McCarthy. 

She, as well as EPA, is responsible for the veracity of the claims made in it. 

I was surprised to learn of the degree of conflict between two agencies. To me, 

this is further confirmation that the EPA is truly an agency that is out of control. 

I appreciate Ms. Darcy’s willingness to do the right thing by sharing those memoranda with the committee as part of our oversight responsibilities. I also appreciate 

her willingness to appear before the subcommittee to discuss the Corps’ participation in the Waters of the United States rule. 

Finally, I want to remind her that we expect her to be candid in her answers. 

This subcommittee will not accept any attempts to evade answering questions based 

on claims of executive branch confidentiality interests, deliberative process privilege, 

or ongoing litigation. While these excuses may work in responding to FOIA requests 
112 

or defending litigation, these are not a basis for withholding information from Congress. It is important that Congress hear directly from you about why the views of 

your technical experts were largely ignored and why the record for the WOTUS 

rulemaking and the Corps memos contradict statements made in the preamble to 

the final rule. 

Senator INHOFE. Well, this is a subcommittee hearing, so it is 

probably not appropriate to make an opening statement. I think 

perhaps we can just move on. 

I would like to make a comment, however. This is the second 

time now this week that this has happened, that we don’t have any 

of the minority showing up for this meeting, and I think that is regrettable. Hopefully, they will come, and I hope that the staff who 

is here from the minority will talk to the minority and see if we 

can get their presence here. 

I think it might be appropriate to just go ahead and hear from 

Ms. Darcy. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA

The Waters of the United States rule is not just another example of regulatory 

overreach by the Obama administration. This rule is not only unlawful; it is completely unfounded. 

For most of its rules the Administration puts together a factual record and argues 

that the facts support more Federal control. This factual information can be reviewed and evaluated as part of the administrative record. 

This did not happen in the waters of the United States rulemaking. According to 

the one court that has looked at the merits of this rule, EPA and the Army simply 

made up new tests for expanding Federal control over land and water without any 

support in the record. 

On August 27, Judge Erickson of the District of North Dakota issued an injunction that prevented the WOTUS rule from going into effect in 13 States because the 

rulemaking record is ‘‘inexplicable, arbitrary, and devoid of a reasoned process.’’ 

In fact, Judge Erickson noted: ‘‘On the record before the court, it appears that the 

standard is the right standard because the Agencies say it is.’’ 

Judge Erickson is right. We have memoranda from the Army Corps of Engineers 

that document the fact that EPA believes it has authority to assert Federal control 

wherever they want. In fact, EPA even told the Corps that it has blanket authority 

to take control over millions of acres of isolated wetlands and can justify that power 

grab by giving up jurisdiction in other areas—even though these kinds of policy 

choices are the purview of Congress, not the executive branch. 

Even if EPA had that kind of legislative authority—which they do not—the final 

rule does not make this tradeoff. In areas where the Corps expressed concern that 

the draft rule gave up jurisdiction, EPA made changes. Where the Corps expressed 

concern that the draft final rule went too far, EPA refused to address those concerns. 

So what we have is a final rule that the Corps of Engineers career experts say 

is not ‘‘reflective of Corps experience or expertise.’’ In fact, the Corps of Engineers 

asked that their name and logo be removed from the background documents that 

EPA developed to support the rule. 

These facts alone are should have caused the EPA and the Army to withdraw the 

rule and start over. But unfortunately, the situation is even worse. 

Not only is the final WOTUS rule unsupported by the rulemaking record, EPA 

and the Army have tried to hide that fact by affirmatively stating that the rule is 

based on the Corps’ expertise and experience, including case-specific jurisdictional 

determinations. Based on the memoranda developed by the career staff at the 

Corps, we know that these statements are false. 

I find this deeply troubling. It is one thing to disagree on law and policy. But it 

is quite another to make false claims to the American people. 

We know EPA was in the driver’s seat for this rulemaking, and I am very sorry 

that the Army is caught up in this mess. But after the career experts at the Corps 

of Engineers used words like ‘‘not accurate,’’ ‘‘unfounded,’’ ‘‘not supported by science 

or law,’’ ‘‘inconsistent with the Supreme Court’s decisions in Rapanos and 
113 

SWANCC,’’ and ‘‘regulatory over-reach’’ to describe this rule I wish the Army had 

withdrawn its support. 

But they did not. 

Now that these facts have come to light it is time for EPA and the Army to admit 

that the WOTUS rule is indefensible. 

Rather than put the American people through years of confusion while the rule 

challenges wend their way through the courts, the Administration should do the 

right thing—withdraw this arbitrary and capricious rule and start over. 

Senator SULLIVAN. Secretary Darcy, why don’t we begin 5 minutes with your opening statement? And if Senator Whitehouse or 

others come, we will hear from them. 

STATEMENT OF JO-ELLEN DARCY, U.S. ASSISTANT SECRETARY 

OF THE ARMY 

Ms. DARCY. Good morning. Chairman Inhofe, Chairman Sullivan, 

members of the committee, I am Jo-Ellen Darcy. I am the Assistant 

Secretary of the Army for Civil Works. I want to thank you for this 

opportunity to come before the subcommittee this morning to discuss with you the Army’s participation in developing the final rule 

entitled Clean Water Rule: Definition of Waters of the United 

States. 

As you know, the final Clean Water Rule was published in the 

Federal Register on June 29th of this year and became effective in 

all but 13 States on the 28th of August. In those 13 States, the 

U.S. Army Corps of Engineers continues to implement Clean Water 

Act section 404 responsibilities under the prior regulation when 

making jurisdictional determinations and issuing permits. 

The process leading to the June 15th publication of the final rule 

started years ago when Members of Congress, key local and national stakeholders, and the American public spoke loudly and 

clearly, demanding that the Environmental Protection Agency and 

the Department of the Army deliver a new common sense set of 

rules that would add clarity and predictability to the implementation of the Clean Water Act following the U.S. Supreme Court’s 

SWANCC decision in 2001 and the Rapanos decision in 2006, 

which called into question the agencies’ decisions over which waters were considered to be waters of the United States. 

President Obama therefore called upon the administrator of the 

EPA and the Secretary of the Army to clear up the confusion by 

issuing a rule that would not only protect our Nation’s waters as 

contemplated under the Clean Water Act, but also improve regulatory predictability, certainty, and transparency. That was our 

charge, and that is what the new rule accomplishes. 

Alongside EPA Administrator Gina McCarthy and her predecessor, the Army was an active partner in developing the rule. The 

rule, however, affects all programs established by the Clean Water 

Act, one aspect of which is the U.S. Army Corps of Engineers’ permit program for the discharge of dredge or fill materials, commonly 

referred to as a 404 Program. 

As Assistant Secretary of the Army for Civil Works, I am responsible for setting the overall strategic direction for the civil works 

program. I am responsible for developing policy and guidance for 

administering the 404 Program. When undertaking these responsibilities, just as with my other assistant secretary responsibilities, 
114 

I coordinate with senior leadership at the U.S. Army Corps of Engineers. 

The exercise of my discretionary authority is always informed by, 

among other valuable inputs, the technical expertise offered by the 

experienced regulators and program officials at the Corps and my 

staff. This is precisely the process I established and used in formulating the Army’s position on many of the policy decisions that 

arose during the drafting and vetting of the proposed final rule. 

The inevitable internal differences of opinions encountered in the 

course of this rulemaking process were not unusual. 

The final rule was not only the product of EPA and Army collaboration, but was improved by a lively and productive interagency process when numerous agencies actively engaged in the 

formulation and development of the final rule. The decisions I 

made on behalf of the Army were reached after receiving the Corps’ 

input. I have personally spoken with the Chief of Engineers, Lieutenant General Thomas Bostick, and he has confirmed that the 

Corps is unequivocally committed to implementing the new rule as 

effectively and efficiently as possible. 

The final rule reflects many changes as a result of listening to 

the public and carefully considering the interests of all Americans, 

including our Nation’s farmers and ranchers. The public demand 

for a common sense rule was heard. The Clean Water Rule represents years of scientific study, as well as public outreach. 

The Clean Water Rule addresses the tens of millions of miles of 

the Nation’s streams and millions of acres of wetlands whose protection against pollution had become confusing and complex following the SWANCC and the Rapanos decisions. 

The Clean Water Rule will protect those streams and wetlands 

that have been scientifically shown to have the greatest impact on 

the water quality of downstream traditional navigable waters and 

that form the foundation of our Nation’s water resources. The rule 

ensures that waters protected under the Clean Water Act are more 

precisely defined, more predictable, easier for landowners and businesses to understand, and consistent with law and the latest 

science. 

Clean water is vital to our health, to our communities, and to our 

economy. We need clean water upstream to have healthy and vibrant communities downstream. Almost 117 million Americans, 

that’s 1 in 3 people in this country, get their drinking water from 

streams impacted by the types of waters whose jurisdictional status 

has been clarified by the Clean Water Rule. Our cherished way of 

life and our economy are dependent on having access to an abundance of clean water. 

I want to thank you again for the opportunity today, and I will 

answer any questions you have that do not involve matters in litigation. Thank you. 

[The prepared statement of Ms. Darcy follows:] 
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Senator SULLIVAN. Thank you, Secretary Darcy. 

Look, just for the record, we do this every time in this committee. 

We all want clean water. My State has the cleanest water probably 

anyplace in the world, and, to be perfectly frank, it is not because 

of the EPA. So we all want water, we know that. But we also want 

agencies that are accountable to the people and to this body. 

So let me just ask the very obvious important question. You have 

seen the memos from Major General Peabody. And these are not 

small level Corps officials. Again, I have the utmost respect for the 

Corps. These are well thought-out memos. I am just going to read 

a couple excerpts from these memos. And these are right at the moment in which the rule is going to be finalized, so these are big, 

big disputes from a key agency. Not just any agency, a key agency, 

with regard to WOTUS. 

The April 27, 2015, memo to you said, talking about the preamble and the rule, states, ‘‘Those statements,’’ where you guys 

supposedly are supportive of the rule, ‘‘are not accurate with respect to the draft final rule, as the process followed to develop it 

greatly limited the Corps’ input, a practice that has continued thus 

far in the interagency review process.’’ 

The May 15th memo: ‘‘The documents can only be characterized 

as having been developed by EPA and should not identify the 

Corps as an author, co-author, or substantive contributor.’’ 

The assistant chief counsel for the Corps: ‘‘It will be difficult, if 

not impossible, to persuade Federal courts that the implicit effective determination that millions of truly isolated waters do not in 

fact have a significant nexus with navigable interstate waters. Consequently, the draft final rule will appear to be inconsistent with 

the Supreme Court’s decision in Rapanos and SWANCC.’’ This is 

why we have been asking Administrator McCarthy for the legal 

opinion, which she refuses to give us because of concerns like this. 

Finally, on 15 May, a few weeks before the final rule was promulgated, this is from, again, General Peabody: ‘‘To the extent that 

the term ‘agencies’ includes the Corps of Engineers, any such reference should be removed. Finally, the Corps of Engineers logo 

from the final rule should be removed from these documents.’’ 

You have said the final rule represents the Corps’ and EPA’s experience, the Corps’ support. These documents dramatically tell a 

different story. Who are we supposed to believe? Where are the 

documents to support your claim that the Corps supported the 

rule? And did the EPA pressure you, as the head of the Corps, to 

sign the final rule when your senior leadership obviously wanted 

nothing to do with it? 

Ms. DARCY. I was under no pressure to sign any rule, Senator. 

This has been a collaborative, joint development of this rule starting several years ago. 

Senator SULLIVAN. Can you explain the response? These are dramatic documents. The senior-most officials in your agency were essentially saying the rule is untrue; we want nothing to do with it; 

take our name off it. Literally, take our name off it; we do not support it; we think it is against the law. How do you respond to that? 

And this is on the eve of the rule. How do you respond to that? 

Ms. DARCY. Senator, those documents and those memos were a 

snapshot in time. 
136 

Senator SULLIVAN. No, no, no, they weren’t a snapshot in time. 

They were at the end of a long process by which several agencies, 

and again, let’s face it, it is the EPA, and the Corps is the key 

agency here, the key agency. This was not a snapshot in time; this 

was at the end of years and months of working on this rule. Your 

final civilian leadership and military leadership said we have had 

nothing to do with this, we don’t agree with this; literally, take our 

name off it. 

How did you then ignore that advice? I mean, literally, the rule 

was issued about a week later. Not a snapshot in time. We are not 

going to buy that. 

Ms. DARCY. Senator, those comments were on the draft final rule. 

The final rule that was published reflects some additional changes 

to the proposed and the draft rule that some of which the comments in those memos have been addressed. 

Senator SULLIVAN. Some? 

Ms. DARCY. Some, yes, sir. 

Senator SULLIVAN. But not all. 

Ms. DARCY. Yes, sir. 

Senator SULLIVAN. And again, I don’t see how you can claim that 

the Corps even supports the rule and the technical aspects of the 

rule, and the Administration, according to its brief in the Sixth Circuit, opposing the motion by 18 States that are now challenging the 

WOTUS rule, were talking about the technical support documents, 

‘‘the TSDs that explains that ‘the agencies are using their technical 

expertise to promulgate a rule that draws reasonable boundaries in 

order to protect the waters that most clearly have significant 

nexus, while minimizing the uncertainty of the scope of the 

WOTUS rule.’’ 

Then DOJ argues that the technical and scientific determinations should get the highest level of deference, which is normally 

the case in a Chevron litigation. But that might be true if the 

record to support those technical determinations came from the 

Corps. The only technical determinations in the record are statements in the technical support document. But according to the 

Corps, this is a quote, ‘‘The Corps was not part of any analysis to 

reach the conclusions described.’’ This is a quote from your agency. 

Let me say that again: ‘‘The Corps was not part of any analysis to 

reach the conclusions described. Therefore, it is inaccurate to reflect that the agencies did this work or that is reflective of the 

Corps’ experience or expertise.’’ 

This is incredibly, incredibly damming. The Justice Department 

can’t rely on this agency deference when the agency itself is saying 

it had nothing to do with it. How do you respond to that? 

Ms. DARCY. Senator, the agency had some input. 

Senator SULLIVAN. Not according to this memo. Can I repeat 

that? ‘‘The Corps was not part of any type of analysis to reach the 

conclusions described. Therefore, it is inaccurate,’’ so please don’t 

be inaccurate with us, ‘‘to reflect that the agencies did this work 

or that it is reflective of the Corps’ experience or expertise.’’ 

Your senior people, who are probably closer to this than you are, 

are saying you had nothing to do with it. So be careful when you 

are telling the Congress of the United States that you did, because 

right here in writing there is a memo saying you didn’t. 
137 

Ms. DARCY. Senator, you are referring to the technical analysis. 

Some of the information that was included in the analysis was provided by the Corps. The Corps did not do that analysis, that is correct. 

Senator SULLIVAN. I see my time is up here for questions. I am 

going to turn it over to Ranking Member Whitehouse. 

We waited quite some time to get this going, so I apologize for 

starting without you. 

Senator WHITEHOUSE. No, you should feel free to start without 

me. 

Senator SULLIVAN. But I would appreciate if you want to make 

an opening statement and then ask questions. She has already 

given her opening statement. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Yes. Thank you very much. 

Ms. Darcy, thank you very much for being here once again. This 

committee is a forum in which every regulation that would help the 

environment receives opposition. Every pollutant regulation receives opposition. Every time, every member. It is an absolute sure 

thing that from stage right over every pollutant, every member, 

every time, every regulation; and it is very unfortunate that here 

we are again on another regulation. 

Rhode Island is a downstream State, so what goes in the rivers 

upstream makes a big difference to us, and the pollutants that go 

in the water upstream come down to our rivers, come down to our 

bays. The Blackstone River is one of Rhode Island’s most important 

rivers; it has an industrial history, and a great deal of the bottom 

of the Blackstone River is industrial waste from Massachusetts 

from decades and decades ago. 

Not too long ago, Narragansett Bay, up in the north, was 

unfishable and unswimmable, and it is a really important resource 

to our State of Rhode Island to have Narragansett Bay be fishable 

and swimmable. And the Clean Water Act and the Waters of the 

United States rule have been essential to that progress, and while 

there can be argument over the scope and the details of the rule, 

that hasn’t been what has been the issue. There has been just a 

full-on, party-wide, absolute attack on this rule, and I think it is 

very regrettable, because I think the Clean Water Rule has been 

very effective at helping particularly States like Rhode Island that 

tend to be downstream States, and it is a big deal for us. 

So if my colleagues want to address technical improvements that 

we think we should make, of course I am always open to that. But 

the conversation on this has been largely preposterous. Doc 

Hastings, the former Representative, said that no body of water in 

America, including mud puddles and canals, wouldn’t be at risk of 

job-destroying Federal regulation. It is the historic power grab that 

poses a fundamental threat to our way of life. 

You hear this extreme rhetoric about a rule whose purpose is to 

keep our waters clean so that pollutants aren’t dumped into a ditch 

and then the foreseeable next big rainstorm washes them down 

into our bay. 
138 

Now, the Supreme Court cases are challenging; they give EPA 

and the Army Corps some very difficult responsibilities. I think 

that the rule is, by and large, pretty consistent with the Supreme 

Court decisions. If you wanted something different, well, the Supreme Court kind of has set the ground rules for this. 

So, like I said, we are open, I think, on this side of the aisle to 

considering technical adjustments to make this a more effective 

and fair rule, but that is not what I detect here in this room today; 

it is, once again, every regulation, every pollutant, every member, 

every time from the Republican side. 

I yield back my time. 

Senator SULLIVAN. Do you want to ask questions? 

Senator WHITEHOUSE. Let me just ask Ms. Darcy if there is anything that she would like to say. She got cut off a couple times in 

the last questioning and didn’t get a lot of time for her answers. 

You remember the chairman’s questioning. Perhaps you would 

like to provide some positive answers to what he had to ask you. 

Ms. DARCY. Thank you, Senator Whitehouse. 

I would just like to clarify that when you asked about the Peabody memos, the content of those memos were things that were 

considered during the development of the rule. And as I said earlier, some of the considerations and changes that were made to the 

final rule between the draft final rule and the final rule are reflective in some of the concerns that the Army Corps of Engineers had. 

But it is my job as the Assistant Secretary of the Army for Civil 

Works to oversee the policy development of the 404 Program, along 

with all of the other responsibilities, and I had to make some decisions in making the final rule decisions. Some of those agreed with 

the Corps of Engineers recommendations; some did not. 

Senator WHITEHOUSE. But in your position as the Assistant Secretary, do you feel comfortable that your position was heard, considered, and reflected in the final rule? 

Ms. DARCY. Yes, I do. 

Senator WHITEHOUSE. Thank you very much. 

Senator SULLIVAN. Senator Barrasso. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Senator INHOFE. Let me explain first. I would normally be next. 

Senator Barrasso has a commitment, so it is fine if you want to go 

ahead and go, and I will go back into my turn after Senator 

Cardin. 

Senator BARRASSO. Well, thank you very much, Senator Inhofe. 

I appreciate the opportunity. 

Madam Secretary, I want to read the story that was on the front 

page of the New York Times September 18th of this year. The story 

is entitled Family Pond Boils at Center of Regulatory War In Wyoming. Regulatory war in Wyoming. 

The story highlights the plight of a young man, Andy Johnson. 

He is 32, he is a welder, he is a part-time caterer, he is a father 

of four girls, lives in Fort Bridger, Wyoming. The article talks 

about a pond that Mr. Johnson built on his property the EPA now 

says violates the Clean Water Act, and that he should have gotten 

a permit from the Army Corps of Engineers. Now, Wyoming has already said it is OK to do this, but this is the Army Corps of Engineers. 
139 

The article says, ‘‘Mr. Johnson and his wife spent $50,000, most 

of their savings, to create a pond of water to help his 10 head of 

cattle and 4 horses.’’ Now, this is the front page of the New York 

Times because of what is going on with the regulatory war in this 

country. ‘‘Mr. Johnson and his family have been threatened with 

fines, $37,500 a day, thanks to the EPA and the Corps’ heavyhanded management of water policy.’’ The article states the family has accrued fines of as much as $16 

million. He sold off most of his livestock to pay his legal fees, environmental studies. 

Something is terribly wrong with the EPA and your agency 

where you destroy people’s lives over a pond. A pond. You may 

claim your rule and regulatory approach is based on science, but 

it certainly is not based on common sense. 

And I don’t want to see this happen to any more Wyoming families, families anywhere in the country. Why should any family trust 

the EPA or the Corps with this Waters of the United States rule 

that will ultimately empower unelected, unaccountable bureaucrats 

to steamroll families, take their college savings, clean out their retirement accounts. This is abysmal. And when the EPA, through its 

actions, gets talked into the front page of the New York Times with 

an article about Wyoming, you can tell how much overreach there 

is here. 

Any answer to this? 

Ms. DARCY. Senator, I believe that the Clean Water Rule that we 

have promulgated will help to improve the clarity for those people 

who have questions about the reach of the Clean Water Rule. I 

think the science has demonstrated that there is connectivity between different bodies of water, and that is an important consideration when we decide whether an activity should be permitted or 

not in a jurisdictional water. 

Senator BARRASSO. And a $16 million fine against this Wyoming 

family, 32-year-old family of four daughters, wants to get them to 

college. You are going to provide better clarity to them, is that 

what you just said? 

Ms. DARCY. That is what we intend to this in this rule. 

Senator BARRASSO. Well, it is pretty clear, when they have a $16 

million fine, that the EPA certainly thinks that they have the authority to do this. 

You know, there is so much in these Army Corps memos that 

Senator Sullivan started, described how your agency was essentially out of the loop in a lot of the decisionmaking that went into 

developing this rule. 

I have been very critical of how this rule has been drafted, very 

critical of how agencies like the EPA have applied a heavy hand 

to farmers, to ranchers, to small businesses in their management 

of water. I can only imagine how many families like the Johnsons 

have already been bullied by bureaucrats, having their livelihoods 

threatened simply putting a shovel into the ground. 

Statements in the Corps memo about the EPA’s conclusions like 

the Corps was not part of any type of analysis to reach the conclusions described means the EPA was really driving the train, not 

the Corps. And without the Corps’ involvement, it appears to me 

the rule that was developed is completely arbitrary. 
140 

I mean, the Corps’ own memo says, ‘‘In the Corps’ judgment, the 

documents contain numerous inappropriate assumptions, with no 

connection to the data provided, misapplied data, analytical deficiencies, logical inconsistencies. As a result, the Corps review could 

not find a justifiable basis in the analysis for many of the documents’ conclusions.’’ 

So I want to give you the opportunity to state whether you feel 

your agency was pushed around, marginalized by the EPA, because 

that is what your own people are saying about these memos. 

Ms. DARCY. I do not believe that we were pushed around, bullied, 

or marginalized by any other Federal agency during this process. 

Senator BARRASSO. So the people that work for you are wrong. 

Ms. DARCY. No, the people who work for me who are in the Corps 

of Engineers had some differing opinions on some of the final decisions that needed to be made in order to finalize this rule. 

Senator BARRASSO. So a District Court judge in North Dakota 

concluded that the process used to develop the rule is inexplicably 

arbitrary and devoid of a reasoned process. The judge issued a preliminary injunction preventing the rule from going into effect in 13 

States, including Wyoming. And if you truly want to provide certainty and clarity, you will withdraw this rule and start over with 

a process that reaches out to States and local governments, and is 

not arbitrary and devoid of a reasoned process. 

That is why I would ask that you support bipartisan legislation 

that we have introduced. Bipartisan; we have Democratic co-sponsors, it is not just those on the right side of the panel, bipartisan 

co-sponsors. It is called the Federal Water Quality Protection Act. 

It gives your agency a chance to go back, write a rule, reaches out 

to States, protects vulnerable farmers, ranchers, families, and communities. 

Ms. DARCY. We are currently implementing the rule as proposed 

in those 13 States, Senator, and we stand behind that rule. 

Senator BARRASSO. Mr. Chairman, I am going to continue to 

work with the majority leader and getting a vote on this bipartisan 

legislation so we can get it to the floor and rewrite the rule. Thank 

you, Mr. Chairman. 

Senator SULLIVAN. Thank you. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman. 

Ms. Darcy, thank you very much for your service, and thank you 

for being here. I have listened to the hearing, and I am somewhat 

perplexed with what the purpose of the hearing is. Those who are 

listening to this, I am not sure they are gaining much other than 

a debate among the members about the implementation of the 

Clean Water Act. 

I agree with Senator Whitehouse. It seems to me that it would 

be one thing if we were talking about the merits of a rule. We can 

argue the specifics, but it seems to me what we are arguing about 

here makes little sense. 

I would hope we are not arguing about the merits of the Clean 

Water Act. The Clean Water Act has been responsible for improving the public health of the people of this country. In my own State 

of Maryland, the Chesapeake Bay, which I have talked about frequently to the members of this committee, is critically important 
141 

to our life. It is our economic life, it is our social life, it is iconic 

to Maryland’s history, and the Clean Water Act is a critical part. 

And knowing what waters are going to be protected that lead into 

the Chesapeake Bay is critically important. 

I also hope it is not being disputed that the reason why the 

Obama administration initiated a rule is because of two Supreme 

Court decisions that confused the definitions of what are regulatory 

waters of the U.S. and required a response. And we have been 

waiting for a response, and the Obama administration has taken 

the initiative to bring forward a rule, and that is what it should 

be. 

I listened to Senator Barrasso’s concerns about a landowner. 

Those concerns exist under the circumstances prior to this rule 

being formulated. That is nothing new. And it has been difficult for 

landowners because they don’t know whether they are going to be 

regulated or not until we had some clarity from the rules that have 

been proposed. So I think clarity is very, very important in this regard. 

So we are not talking about the merits; now we are talking about 

the process that was used between the Army Corps and the Environmental Protection Agency. And my understanding of the disagreement, to the extent there is a disagreement, during the consultation process, is the Army Corps wanted a broader definition 

of waters that would be regulated. 

I don’t know the internal discussions, but it seems to me EPA 

ultimately issued a regulation that was narrower, and that seemed 

to be the public comment that took place during the process of erring on the side of caution, rather than broadness. And my guess 

is if the rule would have been broader, my colleagues who are 

being critical of the process would have been more critical of the 

result. 

So I am somewhat confused as to the focus of this hearing. 

Ms. Darcy, as I understand it, I am reading from your testimony, 

and I want to make sure I understand this correctly from your position. The final rule was not only the product of EPA and Army 

collaboration, but was improved by a lively and productive interagency process. Is that your testimony? 

Ms. DARCY. Yes, Senator. 

Senator CARDIN. And that was stand shoulder-to-shoulder with 

our colleagues at EPA in support of the merits of the final rule and 

the process used to develop it. 

Ms. DARCY. Yes, Senator. 

Senator CARDIN. Thank you. Thank you, Mr. Chairman. 

Senator SULLIVAN. Senator Wicker. 

Senator WICKER. Thank you, Mr. Chairman. 

Ms. Darcy, this hearing is about whether this rule is legal. There 

is, of course, an appeals court in one section of the country who has 

expressed serious doubts as to whether it is legal. I share those 

doubts. But in order for it to be legal, it has to be signed off on 

not only by you and by the Administrator of the EPA, but it has 

to be based on certain criteria developed by the two agencies. 

Now, in the preamble, which I take it you subscribe to, the preamble? 

Ms. DARCY. Yes. 
142 

Senator WICKER. Thank you. You say the emersion of science 

along with the practical expertise developed through case-specific 

determinations across the country in diverse settings. Case-specific 

determinations across the country in diverse settings. What does 

that mean? 

Ms. DARCY. It means that in making determinations across the 

country, that individual cases were considered when the discussions with the Corps staff and EPA were being developed to put 

this rule together. 

Senator WICKER. Individual cases. 

Ms. DARCY. Yes, sir. In order to make a determination, you have 

to look at the on-the-ground conditions in many instances, so those 

were some of the cases that were discussed. 

Senator WICKER. All right. But in your letter, dated August 28, 

back to Chairman Inhofe, you state your letters seek field observations relied upon by the Army for certain statements in the technical support document and the rule. The letters suppose that 

there are specific field observations in the administrative record 

that correspond to each statement. In fact, rather than relying on 

individual field observations, the rule was the product of yields of 

collaborative decisionmaking, and so on and so forth. 

It seems to me that your letter, which I just quoted, contradicts 

the statement in the preamble that there were case-specific determinations across the country. 

Ms. DARCY. Senator, the case-specific determinations that were 

discussed and included in the conversation in developing the final 

rule were part of the examples that our technical folks discussed 

when developing the rule. 

Senator WICKER. But they were not field observations or specific 

field observations in the administrative record, because that’s what 

your letter just said. 

Ms. DARCY. The field observations that were discussed as part of 

the development of the rule aren’t like a specific condition in one 

specific area. 

Senator WICKER. I noticed you turned to counsel on that question. Can you supply to the committee, on the record, what the 

case-specific determinations across the country and in diverse settings actually is in this case? 

Ms. DARCY. I will consult with counsel, but if at all possible we 

will provide that for the record. 

Senator WICKER. OK, why wouldn’t it be possible? 

Ms. DARCY. This rule is undergoing litigation, so within the parameters of the litigation is what I would have to be mindful of. 

Senator WICKER. OK, we will deal with you on that. 

Also, the preamble is also contradicted by the assertions of General Peabody in his letter dated April 24, which the Chairman has 

already pointed out. General Peabody seems to underscore and support the statement in your letter dated August 28 when he says the 

preamble of the proposed rule and the draft final rule state that 

the rulemaking has been a joint endeavor by the EPA and the 

Corps, and that both agencies have jointly made significant findings, reached important conclusions, and stand behind the final 

rule. Those statements are not accurate with respect to the draft 

final rule, as the process followed to develop it greatly limited the 
143 

Corps’ input, a practice that has continued thus far in the interagency review process. 

It just seems to me, Ms. Darcy, that this statement contradicts 

the preamble and that we have a situation here where the political 

appointee to the Corps of Engineers does indeed support the rule, 

but that the great body of fact-finding behind it is not there. What 

would you say to that assertion? 

Ms. DARCY. I would say that what is reflected in the Peabody 

memos are considerations that the Corps had which had been 

raised to me, those considerations and concerns. Many were decisions that had to be made as to what was going to be included in 

the final rule, and those decisions were mine to make. 

Senator WICKER. But not based on field observations? 

Ms. DARCY. Much of the technical expertise and experience of the 

Army Corps of Engineers was considered when making many of 

these decisions. 

Senator WICKER. Thank you. Thank you, Mr. Chairman. 

Senator SULLIVAN. Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Secretary Darcy, since 2001, the Supreme Court decision in 

SWANCC, no isolated wetland has been found to be jurisdictional. 

However, under the new WOTUS rule there are five categories of 

isolated wetlands that you now expect to regulate, because the final 

rule makes a legal determination that these categories are similarly situated. This means that you will look at aggregate impacts 

when deciding whether there is significant nexus to navigable waters. 

The Prairie Pothole Region, which includes South Dakota, encompasses 5.3 million acres of land in the Midwestern United 

States. Can you tell how many acres of land in the United States 

are impacted by all five categories of this new provision? 

Ms. DARCY. I don’t have that number with me, Senator, but I 

would be happy to try to find it for you. 

Senator ROUNDS. I would appreciate it if we could get that. Just 

an assumption: pretty significant amount of land in the United 

States. Fair statement? 

Ms. DARCY. Yes. But, again, the exact number we will provide to 

you. 

Senator ROUNDS. OK. What is the basis for determining that all 

wetlands in these categories within a watershed are similarly situated? 

Ms. DARCY. Senator, during the scientific consideration that we 

did through the connectivity report that was reviewed by the 

science advisory board, the potential for connectivity of those kinds 

of water bodies and the impact that they might have a connection 

to a downstream navigable water is present, which means that it 

is a possibility. That’s why you can do a significant nexus test. 

That if it is determined that there is a significant nexus between 

that kind of water and its impact to a downstream navigable 

water, if that determination is made, then that would be a jurisdictional water. 

Senator ROUNDS. You recognize that this rule would make some 

significant changes in the definitions of waters of the United 

States? 
144 

Ms. DARCY. It is possible that if there is a significant nexus between those five similarly situated types of waters, that there could 

be some impact to downstream waters, and that is the ultimate 

goals, is to try to prevent negative impacts to the downstream waters. 

Senator ROUNDS. But you also understand, and in your testimony you indicated that 404 permits are a critical part of the responsibility of the Corps in terms of determining the issuance of 

those and that they impact not only quality of water, but it also 

impacts because they want certainty, economic activity as well. 

Fair statement? 

Ms. DARCY. Yes. 

Senator ROUNDS. So you understand how critical. And the reason 

why it is so important for a lot of people out there, the business 

community, a lot of people depending upon the availability of access to the shores, the waterways and so forth, this is a pretty important economic decision, isn’t it? 

Ms. DARCY. Yes, and the health of the water is also a very crucial economic decision. 

Senator ROUNDS. But this was not made in a vacuum. The Corps 

of Engineers clearly understood how important this decision in determining what is and what is not included in the waters of the 

United States, this was not something that you took on lightly. You 

understood the significance of it. 

Ms. DARCY. Yes, sir. 

Senator ROUNDS. I am just curious. You indicated litigation. Do 

you know how many different lawsuits you are involved with right 

now on this particular rule? 

Ms. DARCY. I know that 31 States have sued. I think there are 

an additional I think maybe 60 to 70 cases. 

Senator ROUNDS. I think right now, if I could, I think right now, 

according to our information, I think there are like 22 different 

lawsuits involving 31 separate States of the United States right 

now on this particular rule. Clearly, the impact of this rule for 

these States, I think you were right in your determination that this 

was a very important rule that you have made some interpretations on. Fair to say? 

Ms. DARCY. It is a very important rule. I think it is a 

generational rule for the Clean Water Act. 

Senator ROUNDS. If we look at not just the combination of literally what is in this particular case the political outlook for all of 

these States, when you have this many bodies all sitting side-byside challenging what has been done in this particular case, and 

then you look at the impact economically in terms of the significant 

changes it could make with regard to the number of 404 permits, 

the number of individuals, whether they are farmers, ranchers, this 

is one of the biggest, perhaps, political and economic deals you 

have been involved with in perhaps a generation? 

Ms. DARCY. I think it is one of the most important rules in order 

to protect the water quality of this country, yes. 

Senator ROUNDS. Not only for our water quality, but in terms of 

the political impacts, the political challenges involved, and the economic impact as well. Fair to say? 

Ms. DARCY. There are challenges, yes, Senator. 
145 

Senator ROUNDS. But would you agree with my statement? 

Ms. DARCY. That it is the largest? 

Senator ROUNDS. One of the largest. Very, very important in 

terms of economic impact and very, very important in terms of the 

political impact. 

Ms. DARCY. Yes, it is. 

Senator ROUNDS. Thank you. Appreciate it. 

Thank you, Mr. Chairman. 

Senator SULLIVAN. Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. 

And thank you, Secretary, for being here today. 

In Nebraska, we are blessed with wonderful natural resources, 

and we want to make sure that we manage our water resources in 

an appropriate manner. I agree with Senator Whitehouse; the 

Clean Water Act is an important piece of legislation. It has been 

very beneficial across the United States. We differ on this rule, 

however. 

In Nebraska, our natural resource districts, we have different basins in Nebraska that are resource districts. They work to help 

manage groundwater. The State manages surface water. And together I think we manage our resources very well. We also work 

with the Corps very well in Nebraska. 

For example, we had a levee system in the eastern part of the 

State where we worked with the Corps, and it was completed last 

year. And that protects the drinking water in basically our urban 

areas on the eastern part of the State, the drinking water for over 

half of our population. It is important that we work together in 

being able to manage those resources and protect our citizens to 

make sure they do have clean drinking water. 

We had a hearing of this committee in Nebraska in March on 

waters of the U.S., and a great panel of Nebraskans came to speak 

on the issue and presented good information. In Nebraska we have 

a broad consensus of varied groups that are opposed to these rules. 

It is not just the usual suspects of farmers and ranchers. We hear 

that all the time: farmers and ranchers are going to be hit by this 

rule. You bet they are. My neighbors are going to be hit by it. 

But also our natural resource districts are opposed, our cities are 

opposed, our counties are opposed, our homeowners are opposed, 

our home builders are opposed, our associated general contractors 

are opposed. So it is a wide group of stakeholders. 

Twenty-five percent of the cost of a new home right now is due 

to rules and regulations, and our home builders know that we are 

putting an American dream out of reach by adding more rules and 

regulations, because most of us aren’t going to be able to afford to 

own our own home in the future if the Government continues on 

in this way. 

In your August 28th letter to Chairman Inhofe, you said that the 

EPA made changes to the final WOTUS rule to address the Corps’ 

concerns. But the only substantive changes made were to expand 

the jurisdiction. No changes were made to address the regulatory 

overreach identified by the Corps. 

Did you raise with the EPA the Corps’ concern that ‘‘many thousands of miles of dry washes and arroyos in the desert southwest, 

even those ephemeral dry washes, arroyos, etcetera, carry water in-
146 

frequently and sometime in small quantities’’? Were any changes 

made to address that? 

Ms. DARCY. In the final rule? 

Senator FISCHER. Yes. 

Ms. DARCY. I don’t believe so. 

Senator FISCHER. Did you raise with the EPA the Corps’ concern 

that the new definition of adjacent used arbitrary distances to establish jurisdiction that according to the Corps ‘‘are not supported 

by science or law’’? Were any changes made to address that concern? 

Ms. DARCY. We did raise that concern with EPA, as we did with 

the other concerns in the Peabody memo and, yes, there was an addition made to the final rule that would take out to the 100-year 

floodplain the waters that could be considered when doing a significant nexus test. 

Senator FISCHER. Did you raise with the EPA the Corps’ concern 

under the rule prairie potholes, vernal pools, and certain other isolated wetlands must be evaluated in the aggregate even though 

‘‘the Corps has never seen any data or analysis to explain, support, 

or justify this determination’’? Were any changes made to address 

that concern? 

Ms. DARCY. That concern was raised with EPA, and as a result, 

as you can see in the final rule, those five types of waters, including the Delmarva, were considered to be similarly situated for purposes of making a significant nexus determination, so that addition 

to the final rule in that memo was not supported, but was included 

in the final rule, and I am aware of what the Corps’ concerns were. 

Senator FISCHER. And I know there is a lot of uncertainty out 

there. You said your hope was that this rule would clarify it. So 

I would like to go over just a few questions that were raised by the 

Corps in an April 24th memo that General Peabody sent to you. 

These are questions that people all across Nebraska certainly have. 

First, how is water defined? According to the Corps, you need a 

definition to avoid regulating puddles. Is that true? 

Ms. DARCY. I am sorry, I didn’t hear the last. To regulate what? 

Senator FISCHER. Puddles. 

Ms. DARCY. Puddles. There is an exemption of puddles in the 

final rule, that they will not be regulated. 

Senator FISCHER. How is water defined in the rule? 

Ms. DARCY. The definition of navigable waters of the United 

States has not changed in the final rule. 

Senator FISCHER. How can you tell if a category of water is similarly situated? 

Ms. DARCY. The determination was made for the similarly situated five kinds of water based on the science that was provided 

through our connectivity report. 

Senator FISCHER. Thank you. 

And if I may, Mr. Chairman, how do you define a roadside ditch? 

Ms. DARCY. I believe it is defined in the exclusions, but actually 

I would have to check on the definition of roadside ditch. Other 

ditches are defined and exempt in the final rule. 

Senator FISCHER. I am over my time, but I would like to submit 

some questions for the record, please. Thank you. 

Thank you, Mr. Chair. 
147 

Senator SULLIVAN. Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much. 

And thank you, Assistant Secretary Darcy, for being here today 

as the committee adds to the already very extensive consultation 

and review that the Army Corps and the Environmental Protection 

Agency have undertaken in crafting the recently finalized Clean 

Water Rule. 

But before I get to the Clean Water Act, I wanted to thank you 

and the Army Corps for your work on the Boston Harbor dredging. 

That project will be critical as the Port of Boston continues its 385- 

year history in the 21st century. Thank you. I also appreciate the 

Corps’ work on the Muddy River project. I think you know there 

are some ongoing discussions about how we can ensure that the 

project will provide flooding protection over the long-term, especially factoring in climate change, and I would like to have an opportunity to speak with you more about those concerns at a later 

time. 

The drama of rivers in the United States catching on fire compelled the enactment of the Clean Water Act, which gave the Government broad authority to limit water pollution. As the 1972 Conference Report and two Supreme Court rulings have made clear, 

the EPA and the Army Corps have the authority to address pollution beyond traditional navigable waters. The Clean Water Act is 

one of America’s great successes. It has supported improvement in 

our economy and ecosystems, and it continues to work. Our rivers 

don’t catch fire anymore, and people can even swim in the Charles 

River now, which was impossible for most of my life. 

But given litigation in the last decade, the EPA and the Army 

Corps needed to update their implementation of the Clean Water 

Act, which leads to the new rule that we are discussing today. 

Now, some say that the new Clean Water Rule does not go far 

enough, while others, like the National Farmers Union, prefer this 

rule over its previous iterations. So I want to ask you, Secretary 

Darcy, a few questions about the development of this rule. 

First, the memos being discussed today reveal conflicting opinions within the Corps on the policy decisions made in the rule. Isn’t 

it true that internal discussions are an important part of the rulemaking process? 

Ms. DARCY. Yes, Senator. 

Senator MARKEY. I assume many people in the Army Corps 

worked on this rule. Shouldn’t we expect that some would feel that 

the rule should be made more stringent? 

Ms. DARCY. Yes, Senator. 

Senator MARKEY. Do the memos reflect the official opinion of the 

Army? 

Ms. DARCY. No. 

Senator MARKEY. Were the issues raised by the memos covered 

in the final rule? 

Ms. DARCY. Some of the issues were addressed and changed as 

a result of that, yes. 

Senator MARKEY. Critics of the rule have voiced concern over the 

agency’s provision of a legal rationale for the rule. But isn’t it true 

that the rule, while proposed, included an entire appendix entitled 

Legal Analysis, which spoke to those concerns? 
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Ms. DARCY. That’s correct. 

Senator MARKEY. And, similarly, isn’t it true that the first section of the final rule’s technical support document entitled Statute, 

Regulations, and Case Law, that the legal issues also spoke to 

those concerns over the span of 86 pages? 

Ms. DARCY. Yes. 

Senator MARKEY. So I think it is pretty clear that there was a 

very thorough consultation process; that there was a very thoughtful set of discussions that took place; that there was in fact a supporting set of documents to back up the basis for the decisions 

which were made, as the concerns had been raised. 

So I think that the Army Corps did a good job. It is a tough job, 

but it is one where, it seems to me, that you balanced the interests 

that were at stake and tried to come down with good judgments. 

And I think you did it, and I think you also did it legally, and you 

did it with the backup analysis, which is required under the law. 

So I just wanted to compliment you on your very good work. 

And I thank you, Mr. Chairman, for having this hearing. 

Ms. DARCY. Thank you, Senator. 

Senator SULLIVAN. Thank you. 

Senator Inhofe. 

Senator INHOFE. Thank you, Mr. Chairman. 

Let me put something in perspective here. I have enjoyed listening to both sides, and this has been a discussion that has been 

going on for a long time. This Administration has a policy of, if you 

can’t get something passed by people who are answerable to the 

people of America, then do it through regulation. In other words, 

what you can’t get done through legislation, do through regulations. 

Well, this has been through that. I think we can all say historically the States have had jurisdiction over the water. The exception 

has always been navigable. I understand that and I agree that that 

exception should be there. And I think everyone up here does agree 

with that. 

But I would say this. It was about 6 years ago that there was 

an attempt to do this legislatively. It was Senator Feingold and 

Congressman Oberstar, from Wisconsin and Minnesota. Not only 

was the legislation defeated, resoundingly, but both Senator Feingold and Congressman Oberstar were defeated at the next election. 

I am saying this is a huge issue. That was a prominent issue in 

that election. And to say that consultation took place with farmers 

and ranchers, they weren’t farmers and ranchers from Oklahoma. 

And to give you an idea of the significance of this issue in terms 

of property rights, in terms of just what is right and wrong, the 

chairman or the president, I guess his title is, of the Farm Bureau 

in Oklahoma is Tom Buchanan. Tom Buchanan was making a 

speech, and in his speech he said, of all the problems of farmers 

and ranchers in Oklahoma, the Ag Committee doesn’t really handle 

these, it is the overregulation by the EPA. That is what his statement is, the overregulation by the EPA. 

Now, he was talking about endangered species, talking about a 

lot of other things, certainly cap-and-trade, but he said the No. 1 

concern of all the problems we are having with the overregulation 

that is killing us, and this is the Farm Bureau talking, is the 
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WOTUS issue. This is the one that they are most concerned about. 

And when you read it, you can talk about all these things, adjustments you are making, but in reality it didn’t happen. 

On May the 15th, just 12 days before you signed the final 

WOTUS rule, General Peabody, and a lot of us have been talking 

about General Peabody. He is a Major General, and his title is the 

Deputy Commanding General for Civil and Emergency Operations. 

He is way up there at the top. You would agree with that, wouldn’t 

you? 

Ms. DARCY. Yes, sir. 

Senator INHOFE. General Peabody sent you a memo saying that 

the economic analysis and technical support document for the final 

rule made inappropriate assumptions, misapplied data, and included analytical deficiencies and logical inconsistencies. Was he 

right? 

Ms. DARCY. I don’t agree with him. 

Senator INHOFE. All right. ‘‘As a result, the Corps’ review could 

not find a justifiable basis in the analysis for many of the documents’ conclusions.’’ 

General Peabody went on to tell you the Corps’ name and logo 

should be removed from these documents. This is a quote, it is not 

me talking, this is General Peabody: ‘‘To either imply or portray 

that the United States Army Corps of Engineers is a co-sponsor, coauthor, or contributor to these documents is simply untrue.’’ 

Now, if the Corps refused to claim authorship of these documents, why did you put the Army’s name on them? 

Ms. DARCY. Because the Army does support the rule and the documents in the development of the rule. 

Senator INHOFE. Isn’t it the job, though, of the Corps of Engineers to make the statements on which their support is going to 

be based? 

Ms. DARCY. It is the job of the Army Corps of Engineers to inform me, as well as others, as to their experience and expertise, 

and it is up to me to make a final decision on behalf of the Army. 

Senator INHOFE. And you disagreed with the statements that he 

made. 

Ms. DARCY. I disagree that the analysis was flawed. 

Senator INHOFE. So you disagreed with him? 

Ms. DARCY. I had economists in my office review the economic 

analysis and the technical analysis. 

Senator INHOFE. I really regret this, but these things have to be 

talked about. 

On August 27th, Judge Erickson, of the District of North Dakota, 

issued an injunction that prevented the WOTUS rule from going 

into effect in 13 States, as we have been talking about, because the 

rulemaking record is inexplicable, arbitrary, and devoid of a reasoned process. Is that Federal judge wrong? 

Ms. DARCY. I disagree with that finding. I think the process was 

legitimate. I think it is defensible in both law and in process. 

Senator INHOFE. In fact, she said, Judge Erickson noted, ‘‘On the 

record before the court, it appears that the standard is the right 

standard because the agencies say it is.’’ 

Now, it doesn’t do any good to ask you if you agree with that or 

disagree with that, but is everybody wrong here except you? We 
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have talked about General Peabody, we have talked about Federal 

judges. We have talked about the overwhelming number of people 

in the United States, 32 of the States coming out overtly opposing 

it. Is everybody wrong? 

Ms. DARCY. I don’t believe everyone is wrong, Senator. I believe 

that the rule is going to show that we are going to provide protection for the waters, which is what our responsibility is under the 

Clean Water Act. 

And I think that this rule brings clarity to a rule that had confusion. We were asked by the Supreme Court, Justice Roberts encouraged both agencies to develop a rule. We were encouraged by 

Congress, by stakeholders to develop a rule to clarify the impact of 

those court decisions, as well as what the impact should be on covered waters. 

Senator INHOFE. A lot of the statements that were made by General Peabody, he was making recommendations of changes. He 

would say, no, I don’t want my name attached to it. But in doing 

so, he was recommending making changes in the final document. 

And I know there has been some discussion about this, maybe you 

can find one or two that was made, but they really weren’t. The 

things that he found issue with were not changed in the final document. 

We will be talking about this, as we have in the past, for a long 

period of time. Hopefully, we will be able to stop this again. This 

is considered to be, by the people in my State of Oklahoma, the 

most significant raid that they have ever had, and they are very 

much concerned about it. So I regret that you are in the position 

that you are in, but I am glad I am in the position I am in. 

Thank you, Mr. Chairman. 

Senator SULLIVAN. Thank you, Senator Inhofe. 

I think Ranking Member Whitehouse and I are going to conclude 

with a few additional questions. 

Senator INHOFE. Could I interrupt just for a moment? 

Senator SULLIVAN. Sure. 

Senator INHOFE. I am sorry. I was reminded by my staff. I would 

like to ask for a copy of the analysis by your economists and the 

technical experts you used, who advised you. I would like to have 

a copy of that advice. Is that all right? 

Ms. DARCY. Sure. 

Senator SULLIVAN. So, Secretary Darcy, thank you for answering 

the questions and being the sole witness at this hearing. It is an 

important hearing, and I am going to address a little bit what Senator Cardin had mentioned, hey, what is this about. It is about 

oversight. But let me ask you a couple additional questions here. 

There is kind of a theme and Senator Markey was focused on it, 

that, hey, look, this is internal policy debates. You are kind of making the same kind of narrative here. And we understand when that 

is the case, right? Agencies have internal policy debates; there is 

a pushing, to-ing, fro-ing on what the right decision is. And when 

that happens Senator Markey used the term balance of views, policy discussion. You are kind of insinuating, hey, there are reasonable alternatives here that we had the option to deal with. And I 

think that sounds good. 
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I think what has really concerned so many of us is that it is actually not true. It is not true. This is not one of those examples of, 

hey, on the one hand, on the other hand. Let me give you just a 

few. There are a lot. I will just mention a few. 

In the May 15th memo from the Chief of the Corps Regulatory 

Program, he stated to you, so this is like 2 weeks before the final 

rule is going to be issued, ‘‘It is patently inaccurate.’’ This isn’t 

gray. It is patently inaccurate. The final rule states that the action 

the rule does not have any tribal implications. That is in there. 

He states that is patently inaccurate because both the expansion 

and loss of jurisdiction of the waters of the U.S. may have significant affects on tribes and their resources. And certainly in my 

State. Like Senator Fisher, I held a hearing on the WOTUS rule 

in Alaska, and one of the most powerful witnesses was the mayor 

of the North Slope Borough saying that this would have an enormous impact on their borough, tribal entities on the North Slope 

of Alaska. Enormous. 

So this isn’t kind of a balanced, hey, you know, maybe we got it 

right, maybe we got it wrong. I am going to thread the needle here. 

Patently inaccurate. 

Let me give you another example. In the April 24, 2015 memo, 

‘‘Arbitrary limits within the definition of neighboring,’’ when he is 

talking about the extent of the rule, ‘‘are not rooted in science and 

beyond the reasonable reach of defining adjacency by the rule.’’ 

So these are your experts, whom I assume have a lot more expertise on the science than you do. And they are not low level guys; 

they are senior guys. And they are saying that the limits you are 

defining in the rule are not rooted in science. There is a lot of talk 

on this committee about, hey, we have to base things on science. 

Your experts, and again, this isn’t black and white; they are saying 

this is not rooted in science. 

Let me give you a third example. This relates to the issue of adjacent waters, where the final rule automatically regulates all waters within 100 feet of a tributary or other water and all waters 

within 1,500 feet of a tributary or other waters if located in the 

100-year floodplain. 

The final rule and the preamble says, ‘‘The adjacency provision,’’ 

which your expert said was not rooted in science, ‘‘is based on the 

best available science.’’ That is what the preamble of the rule says. 

Your top scientist and expert, probably a lot more experienced than 

you, says that is not true. The adjacency provision is based on the 

best available science, the intent of the Clean Water Act, and case 

law, and is consistent with the experience of the agencies in making case-specific nexus determinations. That is what the rule says. 

So again, General Peabody comes back to you and says, actually, 

that is not true. Based on how many feet there are between bodies 

of water, it cannot be based on the Corps’ expertise and experience 

because the Corps does not record distances in their jurisdictional 

determinations. 

So again you have a senior expert who is saying it is not true. 

So this narrative of, hey, we are threading the needle, one side is 

saying one thing, reasonable people can disagree, your senior people. And this wasn’t a snapshot in time, this was at the end of a 
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year’s long process with the top experts in your agency. They are 

coming out saying this is not a gray area. 

Make the call, Madam Secretary. You are the political leader. 

They are telling you it is black and white. They are telling you it 

is black; you are saying it is white. 

That is why we are so concerned here. That is why we are so concerned here. How do you respond to the patently inaccurate? May 

15th, your top expert says that the rule says this is not going to 

have any tribal implications. He comes back and says that is patently wrong. How do you explain that? How do you then go, no, you 

are wrong; I am right? How do you do that? 

I am just curious, because it seems to me this is not a judgment 

call, this is not a policy call; this is black and white. Your senior 

people are saying black; you are saying white. I think because you 

are being told by the EPA to do that, but you have said that you 

weren’t. So how do you explain that? 

How do you explain these other ones? How do you say that it is 

based on science when your top official who knows the science 

probably better than you do says, no, don’t say it is based on 

science because it is not? How do you explain those away? 

Ms. DARCY. Senator, the adjacency determinations are based on 

science. 

Senator SULLIVAN. And the general said, ‘‘Arbitrary limits within 

the definition of neighboring are not rooted in science.’’ 

Ms. DARCY. The definitions for neighboring, as well as adjacent, 

were based on the connectivity report that the science advisory 

board provided, and there needed to be a decision made as to 

where the bright line would be drawn as to what was going to be 

jurisdictional and considered to be an appropriate water body to be 

considered for significant nexus test. 

Senator SULLIVAN. Are you more of an expert on these issues 

than General Peabody or the people who drafted those memos? 

Ms. DARCY. I don’t believe that I am more of an expert. I believe 

that it is my responsibility in the position where I sit that I have 

to make decisions as to what should be included in the rule in 

order to carry out our obligations under the Clean Water Act. 

Senator SULLIVAN. So you have the authority as a political appointee to look at your folks not on a judgment call, but just say, 

hey, general, I know you know more about science than I do, but 

you are wrong; I am right. 

I think Senator Inhofe made a really good point that it seems 

like everybody is wrong with the exception of you in this case, and 

the EPA. 

Ms. DARCY. I don’t believe everyone is wrong. I believe that if 

there is a difference of opinion, and it is my responsibility to make 

a call, that is my job. 

Senator SULLIVAN. Look, I am not trying to badger you here, but 

there is a broader issue at play; it is the issue of what I am sure 

you are familiar with, it is called Chevron deference. And the Congress, through the courts and the Supreme Court and through our 

roles here, provides agencies a lot of deference. We do it in laws. 

I actually think we do it too much. The courts certainly provide 

that deference, that Chevron deference to agencies. 
153 

So when an agency makes a call and it is reviewed by a court, 

the court says, hey, we are going to give the agency deference because we know that the rule was based on the unique expertise 

and experience of the agency. 

That is what Chevron deference is, isn’t it? That is why your 

rules are not considered arbitrary and capricious, right? 

Ms. DARCY. Correct. 

Senator SULLIVAN. But the problem here is that we have memo 

after memo from the top people in your organization saying this 

was not based on our expertise or our experience. So it kind of undermines the whole idea of Chevron deference that we grant to 

agencies like you. 

And that is why I think you are going to continue to lose in the 

Federal courts, because if the rule is not based on the expertise and 

experience of senior Corps officials, you may have made the call 

that black is really white when your team is telling you that is not 

the case, but I think you are going to have a hard time convincing 

a court that you deserve Chevron deference when the expertise and 

experience of your agency, according to your own experts, was not 

part of this rule. 

Do you have a comment on that? 

Ms. DARCY. The final rule is based on the Department of the 

Army being the agency. The fact that the memos are now part of 

the public record in some of the court cases that are being developed, I will wait to see what the courts do as far as Chevron deference with regard to those memos. 

Senator SULLIVAN. OK. It is a very serious issue, and that is why 

we are holding a hearing. 

Let me just ask a final question. There are a lot of concerns on 

the Federal regulatory process. I think we in the Congress need to 

do a lot more in terms of oversight on this process, whether it is 

in the development of rules, and this is what we are focused on 

here, the development of rules; whether it is in the legality of rules, 

and not the Corps, but the EPA. Two Supreme Court terms in a 

row, big rules that they have issued, the Supreme Court has said 

have violated the Clean Air Act. 

In the application of rules, and in a stunning statement, and I 

mentioned at the outset, but I am just stunned by it, the Administrator of the EPA essentially said, hey, whether we win or lose in 

the Supreme Court, it doesn’t really matter because those American people who they are supposed to be represented, that we represent, they have to do what we say anyways. 

I am amazed that my colleagues on the other side of the aisle 

don’t look at that statement by the EPA Administrator and just 

drop their jaws in shock. That is the most arrogant thing I have 

seen. 

Do you agree with that? Because right now WOTUS, there are 

a lot of people who don’t like WOTUS. There are a lot of problems 

with WOTUS from a legal perspective. The Corps even said so. 

Again, I read the memos. They think it is not going to pass muster. 

Of course, the administrator thinks it does, but she probably 

doesn’t even care because millions of Americans are going to have 

to abide by it before the Supreme Court finally rules on it. 
154 

Do you think that that is the way the regulatory system in 

America should work? And do you think the Administrator’s comment that drips with arrogance about what her role in the Federal 

Government is, do you think that is appropriate? 

Ms. DARCY. I believe the Administrator was commenting on her 

situation, and my comment here on the waters of the U.S. rule is 

that we are acting within the legal framework that we have been 

presented with, partly because the Supreme Court recommended 

that the Department of the Army and the EPA develop a rule 

under this Clean Water Act, and that is what we have done. 

Senator SULLIVAN. But your own chief counsel thinks that this 

is likely not going to pass constitutional muster. 

Ms. DARCY. No, sir. My chief counsel believes it does. The deputy 

chief counsel for the Army Corps of Engineers at that point in time 

believed it would not. 

Senator SULLIVAN. OK. OK. 

Senator Whitehouse. 

Senator WHITEHOUSE. Madam Secretary, is it a novelty for there 

to be lively, even intense disagreements, in the internal agency deliberations and in the interagency process that lead up to a regulatory recommendation? 

Ms. DARCY. Are they unusual, is that what your question is? 

Senator WHITEHOUSE. Would it be a novelty for there to be lively 

and even intense disagreements within the internal agency process 

and within the interagency process as the Federal Government prepares a regulation? 

Ms. DARCY. No. 

Senator WHITEHOUSE. It happens pretty often, doesn’t it? 

Ms. DARCY. Yes, sir. 

Senator WHITEHOUSE. And let me ask you one other question, in 

the context of this being this like massive outreach of Federal 

power that is going to forbid a farmer from clearing his ditch and 

so forth. Are there any activities that you can identify, any at all, 

that were exempt from permitting requirements before this final 

rule that now the rule reaches out to and grabs where it wouldn’t 

have before? 

Ms. DARCY. No. 

Senator WHITEHOUSE. Thank you very much. 

Senator SULLIVAN. Thank you, Secretary Darcy. We appreciate 

your willingness to answer these questions. This is, as I mentioned, 

an important issue. 

Senator Cardin asked, what is this about? This is about oversight. This is about oversight. This is about our constitutional role 

with regard to agencies. The American people clearly want more 

oversight of agencies like the EPA. 

And again, I am a big fan of the Corps, but on these kinds of 

issues they are critical, and what is really critical is that the agencies and our Federal Government take action and promulgate rules 

that are based on the intent of Congress and statutes, and that is 

what we are trying to continue to focus on. I think my colleagues 

on both sides of the aisle would agree with that. 

What we are trying to do, and Senator Barrasso mentioned it, if 

the rules don’t do that, then what we should do is to work to pass 

a law. And we are working to pass a law, and we have bipartisan 
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support on a new clean water rule law, and I would encourage my 

colleagues on both sides of the aisle in this committee to co-sponsor 

that important piece of legislation by Senator Barrasso. 

Thank you again. This hearing is adjourned. 

[Whereupon, at 11:59 a.m., the subcommittee was adjourned.] 

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