U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

97–801 PDF 2016

S. HRG. 113–764 

SOLVING THE PROBLEM OF POLLUTED 

TRANSPORTATION INFRASTRUCTURE 

STORMWATER RUNOFF 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MAY 13, 2014 

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 THIRTEENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

DAVID VITTER, Louisiana 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

ROGER WICKER, Mississippi 

JOHN BOOZMAN, Arkansas 

DEB FISCHER, Nebraska 

BETTINA POIRIER, Majority Staff Director 

ZAK BAIG, Republican Staff Director 

SUBCOMMITTEE ON WATER AND WILDLIFE

BENJAMIN L. CARDIN, Maryland, Chairman 

THOMAS R. CARPER, Delaware 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER 

BARBARA BOXER, California (ex officio) 

JOHN BOOZMAN, Arkansas 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

DEB FISCHER, Nebraska 

DAVID VITTER, Louisiana (ex officio) 

(III) 

C O N T E N T S 

Page 

MAY 13, 2014 

OPENING STATEMENTS 

Cardin, Hon. Benjamin, U.S. Senator from the State of Maryland .................... 1 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 3 

Boozman, Hon. John, U.S. Senator from the State of Arkansas, prepared 

statement .............................................................................................................. 218 

WITNESSES 

Mather, Peter, Highway Division Administrator, Oregon Department of 

Transportation ...................................................................................................... 6 

Prepared statement .......................................................................................... 8 

Responses to additional questions from Senator Cardin ............................... 13 

Gibson, James P. Jr., Director of Integrated Watershed Management, Sanitation District No. 1 of Northern Kentucky .......................................................... 20 

Prepared statement .......................................................................................... 22 

Responses to additional questions from Senator Cardin ............................... 33 

Coble, Kim, Vice President For Environmental Protection and Restoration, 

Chesapeake Bay Foundation ............................................................................... 44 

Prepared statement .......................................................................................... 46 

Responses to additional questions from Senator Cardin ............................... 52 

Medina, Daniel E., PhD, PE, D.WRE. CFM, Technical Director-Water, Atkins 56 

Prepared statement .......................................................................................... 58 

Responses to additional questions from Senator Cardin ............................... 63 

Cuccinelli, Hon. Ken, Cuccinelli & Associates ....................................................... 68 

Prepared statement .......................................................................................... 70 

Response to an additional question from Senator Cardin ............................ 72 

Response to an additional question from Senator Vitter .............................. 73 

Cohen, Greg, President & CEO, American Highway User Alliance .................... 74 

Prepared statement .......................................................................................... 76 

Monette, Andre, Attorney, Best Best & Krieger ................................................... 81 

Prepared statement .......................................................................................... 83 

Responses to additional questions from Senator Vitter ................................ 200 

(1) 

SOLVING THE PROBLEM OF POLLUTED 

TRANSPORTATION INFRASTRUCTURE 

STORMWATER RUNOFF 

TUESDAY, MAY 13, 2014 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 2:59 p.m. in room 406, 

Dirksen Senate Office Building, Hon. Benjamin L. Cardin (chairman of the committee) presiding. 

Present: Senators Cardin, Vitter, Merkley, and Fischer. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 

U. S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Let me welcome you all to the Subcommittee of 

Water and Wildlife of the Environment and Public Works Committee. I particularly want to thank Senator Boxer and Senator 

Vitter and Senator Boozman for their cooperation in allowing this 

subcommittee hearing to go forward. 

As I mentioned to some of you before we started the hearing, this 

has been a very productive and busy time for the Environment and 

Public Works Committee. We have completed the work on the 

Water Resources Development Act; it has been signed by the conferees. I was pleased to be one of the conferees. That bill will be 

on the floor of the House and Senate next week, and we expect it 

to be sent to the President by the end of next week. So that is really good news. 

Earlier this week, Senator Boxer and Senator Vitter, along with 

Senator Arrases and Senator Carper, released the reauthorization 

of the surface transportation MAP–21 bill, and that is a 6-year reauthorization with inflationary increases, which is really good news 

that we have at least a framework to move forward on the reauthorization of the Surface Transportation Act. 

So it has been a very busy time for the EPW community and I 

thank all for allowing us to move forward on stormwater runoff, an 

issue that is very important to water quality. And I appreciate the 

opportunity of having the panel that we have here today. 

Senator Boozman, as some of you may be aware, is recovering 

from an illness. I talked to him today and I know that he will be 

returning to full strength shortly, and we look forward to his return here to the U.S. Senate. 

Storm runoff is a major part of water quality issues. I have 

looked at the great water bodies in our Country and what we can 

2 

do to improve water quality. I am particularly interested in the 

Chesapeake Bay, as being one of the senators that have the opportunity of representing the watershed of the Chesapeake Bay in 

Maryland. We have had a successful program because all stakeholders have been involved with shared responsibility and that we 

based our strategies on best science and cost-effective ways to accomplish our goals, and that, to me, is the standard we have to follow. 

Water quality is affected through our agricultural community 

and what they do, and in the farm bill we were pleased to add the 

regional conservation partnership programs that will allow a new 

opportunity to help farmers deal with water quality issues coming 

from their operations. 

Wastewater is another major source of problems for water quality. Of course, as you know, we have the partnership with local 

governments with the State Revolving Fund. 

Storm runoff, the subject of today’s hearing, is a major source of 

concern as it relates to water quality. The sheer volume is a concern; first, with the impervious surfaces in this Country. As I think 

all of us understand, when you have a storm, if the water seeps 

into the soil, a lot of the pollutants will be filtered before it reaches 

our rivers and streams and goes into our great water bodies. If it 

does not, if it runs off of impervious surfaces, it tends to gush, you 

have scour vents and more of the pollutants will end up directly 

into our streams and into our rivers. 

Some of these numbers I think are somewhat surprising. In rural 

American, 1 or 2 percent of the acreage is impervious. About 80 or 

90 percent of the impervious areas are due to our roads and highways. In residential areas, the amount of impervious surface is between 10 to 50 percent, and about 50 percent of that comes from 

our roads. In dense urban areas it can be as high as 90 percent 

of impervious surface; 60 to 70 percent comes from roads. 

So roads are a major part of our issue in dealing with how to 

deal with storm runoff. In the Chesapeake Bay watershed, 17 percent of our acreage is now impervious, and that number is increasing literally every day. 

One inch of rain on a one-mile four-lane highway produces a 

quarter of a million gallons of polluted stormwater. Our national 

highway system represents 180,000 miles. You do the arithmetic. 

And, of course, just recently in Florida we had almost 20 inches of 

rain in Florida. 

So these are areas that need to be of concern. 

The harm to our water quality, I could talk about all the oil, the 

grease, the antifreeze, the tons of garbage, the salt, the deicing 

agents, the heavy metals, the nitrogen, the chemicals, etcetera, but 

I think the best visual for this to me is think about a snowstorm 

and how beautiful that snowstorm is when the snow is just coming 

down and falls on our yards and falls on our roads. It is beautiful. 

By the next day, as you start to look at the road edges and see all 

the black guck that is on the sides of the road, that is the pollutants. That is what ends up in our streams and rivers, and it is not 

healthy. It is not healthy for human life and certainly not healthy 

for aquatic life. 

3 

The sheer volume, the scour events, last week I held a field hearing in Cooing with the Cooing Dam and we talked about scour 

events and the volume of water. When you get the big scour events, 

the impact on our water quality is even more multiplied and it is 

affecting water temperature; it brings about cooler water at times 

and can affect aquatic life. So the effect is on aquatic life, on photosynthesis, on respiration, growth, reproduction, etcetera. All are affected by the fact that now too much of the stormwater to enter our 

streams and rivers without going through a filtration that can 

make it less damaging to our environment. 

The cost also here is a huge issue. Two weeks ago, in Baltimore, 

we had eight inches of rain. As a result of that, we lost East 26th 

Street. This was a very dangerous situation, where a whole road 

collapsed into a railroad bed. Clearly, the failure to manage 

stormwater was a contributing factor to the loss of that road. We 

are now trying to figure out what we are going to do for the homeowners who literally cannot return to their homes as a result. Expensive. Expensive to do the repairs after the damage is done. 

The unusual, unfortunately, is becoming the usual in our weather conditions. In Mobile, Alabama, Highway 131, we had another 

extreme event and we have looked at the cost benefits. It would 

have been a lot cheaper to put into the design ways to avoid the 

effects of stormwater on erosion and costs than to have to pay for 

the cleanup after the damage is done. 

Another study was done in Cincinnati with similar results. 

So I look at opportunities of where we can make progress, and 

I am glad for the panel here today and I really look forward to all 

of your testimonies. I am particularly pleased that we have someone here from Oregon who has been one of the leaders in dealing 

with the issues of stormwater management. We look forward to all 

of your testimonies. Our clean water strategy is obviously one area, 

and I look at the reauthorization of the Surface Transportation Act 

as another way, another opportunity in order to deal with storm 

runoff. 

With that, I said very nice things about Senator Vitter before he 

got here. I would be glad to repeat that for the record, but I do congratulate him on the successful completion of the WRDA Conference and on bringing forward the framework for the reauthorization of the Surface Transportation Act. It has been a real pleasure 

to work with Senator Vitter, and I am glad to have you here pinchhitting for Senator Boozman. But he is never pinch-hitting, he is 

always here for himself. 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you, Mr. Chairman, very much. On my 

rush over here, I was mumbling very nice things about you, as 

well, in the hall, and I appreciate your partnership, including on 

the recently completed WRDA Conference. And thank you for calling today’s hearing. I know we all want to take a moment and express the committee’s support and prayers for Senator Boozman as 

he recovers from surgery. 

You know, it is no secret that the current Administration doesn’t 

see Congress as a partner or a co-equal branch, but really just an 

4 

obstacle to its hostile regulatory agenda, and that President Obama 

and his EPA are willing to ignore multiple agency guidelines, federally mandated transparency laws in order to advance that 

proactive agenda by administrative fiat. 

Unfortunately, the Administration’s policy of legislation by regulation is pervasive and it has reached the subject of today’s hearing, stormwater runoff. 

Now, there is no question that under the Clean Water Act Congress provided EPA with some authority to address and mitigate 

the discharge of pollutants into navigable waters. However, the 

EPA has been testing and surpassing, in some cases, the limits of 

this authority in an ongoing effort to regulate water bodies that 

were clearly left to the States and private landowners to manage. 

Some of the more egregious examples have been highlighted by 

EPW Republicans. 

These cases of EPA’s unlawful effort to regulate the rain creates 

absurd consequences for local and State officials in some cases 

throughout the Country. In one particular case, for instance, the 

Virginia Department of Transportation determined that EPA water 

flow regulations would cost hundreds of millions of dollars in unfunded Federal mandates, provide little to no environmental benefit, and force local authorities to condemn a vast swath of private 

property in order to construct required stormwater infrastructure. 

The Department challenged this in court and the independent 

court tossed out EPA’s regulation based on what I would hope is 

a fundamental common sense notion that flow of water on its own 

is not a pollutant under the Clean Water Act. 

Of course, policymakers should example the problems and potential solutions to water pollution associated with transportation infrastructure, and of course we need to recognize dangers like washouts, which were the subject of many of those photographs. But 

that isn’t in the middle of the Clean Water Act and it is not about 

pollution, fundamentally. 

EPA’s proposed Waters of the United States Rule confirms that 

the Agency has no intention of abiding by the limits Congress established in the Clean Water Act. 

As the written testimony for today’s hearing indicates, the Administration’s quest for unfettered regulatory authority will in fact 

impede environmental stewardship and safety efforts by many 

transportation officials throughout the Country, and this calls into 

question either side of the aisle supporting EPA’s proposed rule. 

I want to make it very clear that it is the clear intention of EPW 

Republicans to prevent EPA from redefining Federal jurisdiction 

and to keep EPA bureaucrats out of the backyards of American 

families and off the private property of farmers, ranchers, and 

small businesses. 

I look forward to hearing from our distinguished panel of experts 

this afternoon on this important issue. Thank you. 

[The prepared statement of Senator Vitter follows:] 

STATEMENT OF HON. DAVID VITTER, U.S. SENATOR

FROM THE STATE OF LOUISIANA

Mr. Chairman, thank you for calling today’s hearing. Thank you as well to our 

distinguished witnesses for providing testimony this afternoon. I would also like to 

5 

take a moment to express the Committee’s support and prayers for Senator 

Boozman as he recovers from surgery back home in Arkansas. 

It is no secret that the current Administration sees Congress as an obstacle to 

its hostile regulatory agenda, and that President Obama and his Environmental 

Protection Agency are willing to ignore multiple agency guidelines and federally 

mandated transparency laws in order to appease the environmental left. It was only 

last week that White House counselor John Podesta indicated that there is a ‘‘zero 

percent’’ chance that President Obama will refrain from imposing misguided climate 

regulations, as soon as this year—even if that means further undermining our energy security and economic recovery, and even if that means higher energy prices 

and more unemployment for the American people. 

Unfortunately, the Administration’s policy of ‘‘legislation by regulation’’ is pervasive, and it has reached the subject of today’s hearing: stormwater runoff. There is 

no question that, under the Clean Water Act, Congress provided EPA with the authority to address and mitigate the discharge of pollutants into navigable waters. 

However, the EPA has been testing the limits of this authority recently in an ongoing effort to regulate water bodies that were clearly left to the states and private 

landowners to manage. Some of the more egregious examples have been highlighted 

by EPW Republicans. 

EPA’s unlawful effort to regulate the rain creates absurd consequences for local 

and State officials throughout the country. In one particular case, the Virginia Department of Transportation determined that EPA water flow regulations would cost 

hundreds of millions of dollars in unfunded Federal mandates, provide little environmental benefit, and force local authorities to condemn a vast swath of private 

property in order to construct required stormwater infrastructure. Accordingly, the 

Department challenged EPA in court, which tossed out EPA’s regulations based on 

the common sense notion that the flow of water is not a pollutant under the Clean 

Water Act. 

Of course, policymakers should examine the problems and potential solutions to 

water pollution associated with transportation infrastructure. Unfortunately, the 

EPA’s and this Administration’s refusal to recognize limits to Federal authority 

under current law precludes a sober discussion of these issues. 

EPA’s proposed ‘‘waters of the United States’’ rule confirms that the agency has 

no intention of abiding by the limits Congress established in the Clean Water Act. 

As the written testimony for today’s hearing indicates, the Administration’s quest 

for unfettered regulatory authority will in fact impede environmental stewardship 

and safety efforts by transportation and other officials throughout the country. This 

calls into question either side of the aisle supporting EPA’s proposed rule. 

I’d like to make very clear that it is the intention of EPW Republicans to prevent 

EPA from redefining Federal jurisdiction, and to keep EPA bureaucrats out of the 

back yards of American families and off the property of our farmers, ranchers and 

small businesses. I look forward to hearing from our distinguished panel of experts 

this afternoon on these issues, and I thank Senator Cardin for holding this important hearing. 

Senator CARDIN. I thank you very much, Senator Vitter. 

I know that Senator Merkley was planning on trying to be here 

in order to introduce our first panelist, Mr. Paul Mather, the Highway Division Administrator, Oregon Department of Transportation. 

If Senator Merkley arrives, we will interrupt so that he will have 

an opportunity to say, I am sure, very nice things about you and 

the work that you are doing in the State of Oregon. 

We also have Mr. James Gibson, who is the Director of the Integrated Watershed Management, Sanitation District No. 1 from 

Northern Kentucky; 

Kim Coble, who is the Vice President for Environmental Protection and Restoration, Chesapeake Bay Foundation, who I know 

personally and thank her very much for her work that she does on 

the Chesapeake Bay Foundation; an incredible success story, but 

still a lot more that needs to be done; 

Mr. Daniel Medina, the Technical Director—Water, Atkins. Nice 

to have you with us today. Look forward to your testimony; 

6 

The Honorable Ken Cuccinelli, one of our distinguished guests. 

Wonderful to have you here with us today, who has a long record 

on transportation and environmental issues; 

Mr. Greg Cohen, President and CEO of the American Highway 

Users Alliance; and Mr. Andre Monette, Attorney, Best & Krieger. 

We welcome all of you. As is the tradition of our committee, your 

entire testimonies will be made part of our record. You may proceed as you wish. 

But before we do that, we have an introduction by Senator 

Merkley, as promised. 

Senator MERKLEY. Thank you very much, Mr. Chair. I am very 

pleased to introduce Paul Mather from the State of Oregon, who is 

the Highway Division Administrator at the Oregon Department of 

Transportation. He has been working with ODOT since 1983. 

ODOT has a long history of proactively working with other State 

and Federal agencies to protect Oregon’s environment and move 

forward on projects in a timely and cost-effective way. 

Since salmon was added to the endangered species list, ODOT 

had to submit a large portion of its plans through a new regulatory 

process. In response, ODOT, including Mr. Mather, have worked 

alongside several State and Federal agencies to develop a common 

understanding for reviewing projects which has led to a streamlined approval process and improved management of polluted runoff. 

In addition, ODOT has been implementing programs to reduce 

polluted runoff within its day-to-day highway operations that have 

had a positive result in reducing the amount of pollutants entering 

the water supply. 

While ODOT has been very aggressive in tackling polluted runoff, it is currently working on developing a more strategic plan to 

help anticipate the need for stormwater runoff management and 

meet the requirements of both the State of Oregon and Federal 

laws. 

I am just going to conclude by noting that I am delighted that 

Mr. Mather has been so involved in this important area and is 

bringing his expertise to share with us before the committee. Welcome. 

Senator CARDIN. Mr. Mather, you may proceed. 

STATEMENT OF PETER MATHER, HIGHWAY DIVISION ADMINISTRATOR, OREGON DEPARTMENT OF TRANSPORTATION 

Mr. MATHER. Thank you, Senator Merkley, for the nice remarks. 

Mr. Chairman, Senator Vitter, thank you for the opportunity to 

testify here today. I am Paul Mather, Highway Division Administrator for the Oregon Department of Transportation. 

Protecting the environment is a core value for Oregonians, and 

the Oregon Department of Transportation is doing its part to protect our streams and rivers from stormwater runoff from our highways. In response to the listing of salmon as a threatened species 

under the Endangered Species Act, ODOT has worked with the 

State and Federal regulatory partners to develop and implement a 

set of measures to address stormwater. By implementing these 

measures, ODOT will progressively reduce the impacts highways 

have on the quality of the State’s waters. 

7 

These measures were negotiated with our regulatory partners 

and address the unique circumstances we face in the Pacific Northwest. This negotiation allowed us to achieve the regulatory goals 

around environmental protection while protecting ODOT’s regulatory certainty and measures that can be implemented at a reasonable cost. The approach we developed includes flexibility in how 

we meet the performance standards for a project, allowing for offsite mitigation where site conditions at a project make it difficult 

to achieve the goals onsite. This allows progress to be made on 

water quality without derailing important transportation projects. 

Going forward, ODOT hopes to work with regulatory agencies to 

move away from the project-by-project approach and develop a 

more strategic watershed-based effort that focuses on areas where 

improvements to highways can have the greatest environmental 

benefit at a reasonable cost. While Federal direction in this area 

could improve environmental outcomes, any nationwide effort 

needs to take into account the unique circumstances in each State 

while allow flexibility for negotiating mutually beneficial outcomes 

between regulators and transportation agencies. 

To summarize my remaining testimony, I would like to close just 

with a couple main points that I think are key take-always from 

my testimony. 

First, ODOT has found success by building a strong relationship 

in agreements with regulatory agencies. The biggest barrier to 

building these relationships was trust. It took us 2 years to develop 

the streamlined process we use today. It took us, ODOT, taking 

ownership of our responsibility and it took regulatory agencies 

changing their focus away from rules and regulations, and focusing 

on the overall improvement to water quality in the watershed. 

My second point is funding. We need funding to build and maintain these features. Without long-term funding, planning for complex projects is very difficult. To invest in new techniques and processes, we need long-term funding we can count on. The catalyst in 

Oregon for the development of our streamlined process was a major 

investment by the Oregon legislature in transportation. 

Mr. Chairman, members of the committee, again, thank you for 

the opportunity to testify and share a few thoughts from Oregon. 

[The prepared statement of Mr. Mather follows:] 

8 


97801.001
9 


97801.002
10 


97801.003
11 


97801.004
12 


97801.005
13 


97801.006
14 


97801.007
15 


97801.008
16 


97801.009
17 


97801.010
18 


97801.011
19 


97801.012
20 

Senator CARDIN. Thank you very much. 

Mr. Gibson. 

STATEMENT OF JAMES P. GIBSON, JR., DIRECTOR OF INTEGRATED WATERSHED MANAGEMENT, SANITATION DISTRICT 

NO. 1 OF NORTHERN KENTUCKY 

Mr. GIBSON. Chairman Cardin, Ranking Member Vitter, and 

other members of the subcommittee, I appreciate the opportunity 

to speak before you this afternoon. My name is Jim Gibson and I 

am the Director of Integrated Watershed Management for SD1. 

As the second largest public sewer utility in Kentucky, SD1 provides regional wastewater and stormwater services to approximately 300,000 residents and 35 municipal jurisdictions in Northern Kentucky. Stormwater management is an essential service in 

Northern Kentucky. It protects against property damage, that is, 

flooding and erosion, and it preserves the integrity of approximately 1500 miles of Northern Kentucky stream miles. 

I would like to briefly touch on three impacts associated with 

stormwater management—stream damage, property damage, infrastructure damage—highlight some regulatory obligations, and then 

conclude with the need for a regional calibrated standard. 

First is impacts to stream. Stream integrity is rooted in the natural flow regime, the hydrology, of a watershed. Alteration of the 

landscape in any way, but particularly the addition of impervious 

surface, drastically changes the hydrology of a watershed and 

therefore impacts overall integrity of streams. For this reason, 

stormwater management is crucial for protecting our waterways. 

Second is impacts to property. Absent or inadequate stormwater 

management has been documented across the U.S. to accelerate 

stream instability, bank erosion, and channel enlargement downstream. This is also apparent in Northern Kentucky based on several accounts offered by property owners that described dramatic 

changes in stream morphology after a watershed has been developed. These anecdotal observations are supported by SD1’s extensive hydro modification monitoring program, which has documented at channel area, width, and depth of streams draining developed are significantly larger than those draining undeveloped 

watersheds of similar size. 

Third, impacts to infrastructure. Impacts of unstable streams to 

adjacent infrastructure and property have been documented for 

over 30 years. As unstable streams become wider and deeper, they 

often expose and damage infrastructure in adjacent riparian zones. 

An ongoing review of costs from recent projects in our region revealed that in one Northern Kentucky County alone, during 2011, 

approximately $3 million was spent on stormwater-related repairs 

associated with State-funded roadways. 

Next, meeting water quality obligations. Currently, MS4 permitted dischargers, such as cities, counties, and special utility districts, are required to invest in controls to manage stormwater runoff. One of the largest contributors of impervious areas and, therefore, stormwater runoff in the U.S. is transportation infrastructure. 

In Northern Kentucky, pavement, including roadways, accounts for 

approximately 63 percent of the total impervious area, and State 

roads are one of the largest single entity sources of this impervious 

21 

area, comprising approximately 24 percent of those paved surfaces. 

Given the contribution of State roadways to the total impervious 

area of Northern Kentucky, it is highly unlikely that even the best 

stormwater management practices applied to the remaining impervious areas would adequately protect the integrity of Northern 

Kentucky streams. 

Finally, the need for a regionally calibrated stormwater management. SD1’s experience shows that effective stormwater management is not necessarily one-size-fits-all. Although national standards can play an important role, SD1 has taken the initiative to 

develop a regionally calibrated approach that is protective of local 

streams but, more importantly, the feasibility of Northern Kentucky’s region. SD1’s extensive data collection and modeling efforts 

are consistent with international literature that indicates managing stormwater to match the natural disturbance regime is a key 

design goal to promoting ecological and geomorphic integrity. 

In conclusion, stormwater runoff does not respect political or geographical boundaries, nor the agency that is responsible for that 

impervious surface. Impervious surfaces that are exempt from adequate stormwater management, such as Federal/State roadways, 

comes at the expense of other entities, such as downstream property owners who lose land from accelerated stream erosion or regulated stormwater utilities who might be burdened with future regulatory obligations associated with impaired or degraded waterways. 

Additionally, inadequate stormwater management from impervious surfaces contributes to stream erosion that, in turn, impacts 

adjacent infrastructure. Therefore, adequate stormwater management of all impervious surfaces is not only in the best interest of 

stormwater utilities, but also in the interest of Federal and State 

Transportation Departments for a more sustainable approach to 

managing infrastructure. Ensuring that adequate stormwater management is implemented on all impervious surfaces goes beyond 

our Nation’s water quality. Adequate stormwater management is in 

the best interest of anyone who pays a stormwater bill, a power 

bill, or even gas tax, because ineffective stormwater management 

causes impacts to those utilities that require repairs that are ultimately funded by ratepayers. 

On behalf of Sanitation District No. 1, we thank you for the opportunity to provide this testimony. 

[The prepared statement of Mr. Gibson follows:] 

22 


97801.013
23 


97801.014
24 


97801.015
25 


97801.016
26 


97801.017
27 


97801.018
28 


97801.019
29 


97801.020
30 


97801.021
31 


97801.022
32 


97801.023
33 


97801.024
34 


97801.025
35 


97801.026
36 


97801.027
37 


97801.028
38 


97801.029
39 


97801.030
40 


97801.031
41 


97801.032
42 


97801.033
43 


97801.034
44 

Senator CARDIN. Thank you for your testimony. 

Ms. Coble. 

STATEMENT OF KIM COBLE, VICE PRESIDENT FOR ENVIRONMENTAL PROTECTION AND RESTORATION, CHESAPEAKE 

BAY FOUNDATION 

Ms. COBLE. Good afternoon, Chairman Cardin, Ranking Member 

Vitter, Senator Merkley. My name is Kim Coble. I am the Vice 

President of Environmental Protection and Restoration for the 

Chesapeake Bay Foundation. On behalf of our Board of Trustees, 

our staff, and our over 200,000 members, I thank you for inviting 

me today. 

For more than 40 years, CBF has been working to restore the 

Chesapeake Bay and its rivers and streams. The Chesapeake Bay 

is the largest estuary in the United States. It encompasses 64,000 

square miles, similar to the size of England. It is home to about 

17 million people and stretches through six States and the District 

of Columbia, all the way from Coopers town, N. Y. to Cape Henry, 

VA., from the Allegheny Mountains to the Atlantic Ocean, obviously having many, many miles of roadways and highways in it. 

At the outset, I would like to thank and acknowledge the committee’s longstanding work to protect the Chesapeake Bay. As you 

know, the Bay has suffered for decades from excess nitrogen, phosphorus, and sediment pollution. Because of your leadership, we are 

seeing the incredible progress in our fight to save the national 

treasure. However, much more needs to be done. Namely, we need 

to address the growing source of pollution to the Bay, which is 

stormwater polluted runoff. 

Runoff from developed land seriously impacts the rivers, streams, 

and the Chesapeake Bay. There are almost 4.9 million acres of developed land in the Chesapeake watershed, making up about 12 

percent of the land that drains into the estuary. Stormwater runoff 

from that land causes 17 percent of the nitrogen pollution, 16 percent of the phosphorus pollution, and 25 percent of the sediment 

pollution to the whole overall Bay system; and in some States and 

rivers those numbers are much higher. For example, in Maryland, 

nearly one-third of the nitrogen, phosphorus, and sediment pollution going into the Bay comes from stormwater pollution. 

Across the watershed, runoff causes harm to many, many rivers 

and streams. In both Pennsylvania and Maryland, nearly 2500 

miles of rivers and streams are designated as impaired because of 

stormwater under the Federal Clean Water Act. How much of the 

runoff comes from highways? Based on statewide assessments, 

each year Federal aid roads and highways in the Chesapeake Bay 

States create nearly 21 million pounds of nitrogen pollution, more 

than 2 million pounds of phosphorus pollution, and almost 633,000 

tons of sediment pollution. 

How is this possible? Consider this. Just one inch of rain on one 

acre of hardened surfaces such as a highway produces 27,000 gallons of polluted runoff. For the Bay and the rivers and streams, 

this is devastating. But it does not have to be. There are modern 

ways to design stormwater management practices that can be used 

whenever new Federal highways are built or whenever old facilities 

are rehabilitated. For example, wetlands can be used to filter runVerDate Aug 31 2005 08:26 Jan 20, 2016 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\97801.TXT VERN
45 

offs; engineered roadside swales and bio retention areas can be installed; and, for more urban settings, special pavement or planters 

and bum pouts have been very successful. 

Investing in these kinds of solutions has also the potential to 

boost the local economy because it means local construction jobs for 

workers and engineers. A study by the Environmental Finance 

Center at the University of Maryland concluded that runoff pollution control projects bring a return to local economies of up to 1.7 

times the investment. Each $100 million invested in Lynchburg, 

Virginia, for example, could produce $1.74 million for the local 

economy and pay the salaries of 1,440 local workers. In Anne 

Roundel County, Maryland, the same kind of investment would 

mean $115 million for the local economy and support 780 local jobs. 

Here in the Chesapeake watershed, States are committed to reducing the pollution that is harming the Bay and rivers and 

streams; however, polluted runoff is a significant and growing 

source of the pollution that impacts fish, humans, and property values in the Chesapeake Bay area. Today, highways produce sizable 

pollutant loads to our rivers and streams, but we can change this. 

We can design highways to use the existing landscape as much as 

possible to slow and infiltrate polluted water; we can put practices 

in place that mimic nature; and we can invest in local workers to 

install these practices so investments will stay in the local economies. The better we engineer our highway systems to manage our 

stormwater, the healthier our rivers, streams, Bay, and communities will be. 

Thank you for the opportunity to be here today. 

[The prepared statement of Ms. Coble follows:] 

46 


97801.035
47 


97801.036
48 


97801.037
49 


97801.038
50 


97801.039
51 


97801.040
52 


97801.041
53 


97801.042
54 


97801.043
55 


97801.044
56 

Senator CARDIN. Thank you very much. 

Mr. Medina. 

STATEMENT OF DANIEL E. MEDINA, PHD, PE, D.WRE., CFM, 

TECHNICAL DIRECTOR—WATER, ATKINS 

Mr. MEDINA. Thank you, Chairman Cardin and Ranking Member 

Vitter and Senator Merkley for inviting me here today. My name 

is Dan Medina. I am the National Technical Director for Water for 

Atkins. We are an international engineering firm. We specialize in 

all kinds of urban infrastructure. Highways are a significant source 

of revenue for us, as they are a source of employment for a large 

percent of our 2,700 employees based in the U.S. 

I am also here on behalf of the Water Environment Federation, 

which is an industry association representing hundreds of clean 

water agencies across the Nation. In 2012, the Federation published this Design of Urban Stormwater Controls handbook, which 

is national handbook that establishes the design principles for 

stormwater controls in all urban areas, including highways. I had 

the privilege and the responsibility to be the editor of this publication here. 

Let me start by saying that the U.S. Geological Survey places the 

most remote location in the lower 48 States deep into Yellowstone 

National Park. Yet, that location is only 22 miles away from the 

nearest road. That essentially highlights the omnipresence of our 

highway system; it takes us to our homes, it takes us to our jobs, 

but also to those awe-inspiring locations that should be preserved 

for future generations. Therefore, the highway system should lead 

the way, literally, into environmental stewardship. 

We have heard the impacts of highway runoff, so I won’t repeat 

them here. But one thing to emphasize is that there is no distinction between water quantity and water quality when it comes to 

highway runoff, or any kind of runoff, for that matter. They are all 

inextricably linked and they cause the same problems. We cannot 

separate them. It doesn’t know where to go for quality or for quantity. Moreover, receiving streams that have to deal with these problems are the responsibility of municipalities that have to invest 

taxpayer dollars or ratepayer dollars in solving these problems. 

Therefore, highways are part of the problem and need to be part 

of the solution. 

The good news is that American engineering has the expertise to 

mitigate these impacts. For 30 years we have had an approach 

known as green infrastructure for stormwater management that 

has been pioneered by Prince George’s County here in Maryland. 

You probably heard about pervious pavement and bio retention facilities, stormwater wetlands. All these devices are designed to capture water and put it in the ground, where it belongs, as opposed 

to letting it go over impervious surfaces and into our streams. 

Green infrastructure has been utilized in neighborhoods, in 

streets, in military facilities, but rarely is it utilized in highways. 

Other countries, like the UK, have mandatory regulations that 

force green infrastructure to be one of the options considered. In 

Australia, for example, green infrastructure is part of the considerations when building any major highway project. There is an example called EastLink near Melbourne. It is about 27 miles long and 

57 

includes about 17 interchanges and 88 bridges, hardly a country 

road, and uses a system of 70 wetlands to capture the water and 

put it in the ground. 

In the U.S. we have the leadership from several States, the 

Washington State DOT, Maryland Highway Administration, and, of 

course, you have heard the experience from our colleagues at the 

Oregon DOT. 

Better water management also makes for safer roads. An example here is something called permeable friction courses, which is essentially permeable pavement that is laid on top of regular pavement because it absorbs the water, it reduces the dangers from 

splash and spray and hydroplaning, but it also acts as a 

stormwater filter. Researchers from the University of Texas in Austin and North Carolina State University showed that permeable 

friction courses can reduce as much as 90 percent of the total suspended solids in a highway. 

The final point I would like to make is about economics. There 

is a perception that green highways are going to be delayed, they 

are going to cost more, and they are going to be more difficult to 

permit. The experience from the UK indicates that drainage systems constructed with green infrastructure in mind are 15 to 25 

percent cheaper to construct, and also the maintenance cost is comparable, if not less, as those of conventional drainage systems. And 

then there is the issue of job creation. For planners, for engineers, 

for designers, for construction companies, for maintenance crews 

that specialize in green infrastructure could access the highway 

market. 

In conclusion, American engineering has the expertise to improve 

how we handle runoff from highways today. Green infrastructure 

is a proven technology. It results in cleaner water, safer roads, 

fewer flood losses, more receiving infrastructure, including transportation infrastructure. It is an approach that will create jobs; it 

will not stall the installation of new highways or make it more 

costly. This highway reauthorization bill is an excellent opportunity 

to promote sustainability practices for our highway system. 

In closing, on behalf of Atkins and the Water Environment Federation, I would like to thank you for having me here today. 

[The prepared statement of Mr. Medina follows:] 

58 


97801.045
59 


97801.046
60 


97801.047
61 


97801.048
62 


97801.049
63 

Follow-up Questions for Written Submission, from Senator Benjamin L. Cardin 


97801.050
64 


97801.051
65 


97801.052
66 


97801.053
67 


97801.054
68 

Senator CARDIN. Thank you very much. 

Mr. Cuccinelli. 

STATEMENT OF HON. KEN CUCCINELLI, 

CUCCINELLI & ASSOCIATES 

Mr. CUCCINELLI. Senator Vitter, Senator Merkley, Chairman 

Cardin, thank you all for the opportunity to be here with you. As 

this committee addresses runoff and pollution related to public infrastructure, Mr. Chairman, I appreciated your cost effectiveness 

focus in your opening remarks, and I would appreciate the chance 

to address two aspects of this issue: one, EPA’s overreach in this 

area and, two, the devastating impacts of the EPA involving itself 

in local land via stormwater management. 

I learned about both EPA’s overreach and the consequences as 

Virginia’s attorney general in 2012. 

In Northern Virginia, just south of here, alongside the Beltway, 

I–495 in Fairfax County, the EPA tried to use a TMDL to dramatically expand its jurisdictional reach by interpreting existing law in 

a way that treated rainwater as if it were a pollutant under the 

Clean Water Act. It was very creative layering. 

If it sounds strange to you that the EPA would treat rainwater 

as a pollutant under the Clean Water Act, it sounded strange to 

us too, and to the local government involved, which is a Democratcontrolled board of supervisors, Fairfax County, one of the most environmentally aggressive local governments in Virginia. 

We quickly learned that the EPA’s outrageous overreach was experimental in nature. We were one of only four instance sin which 

EPA tried to use TMDLs in this manner in the whole Country. And 

EPA made it clear that if they succeeded in Virginia, they were 

going to take it nationwide. 

The cost to Virginia as a whole via our Virginia Department of Transportation was estimated to be approximately $70 million in 

the instance of one creek, and the financial impact of Fairfax County’s taxpayers was approximately $200 million. That is $800 per 

family of four in Fairfax County for one regulatory effort over one 

creek. 

Mind you, all of this was with the knowledge that what EPA was 

attempting to mandate would not help the Accosting Creek. Fairfax 

County had already spent over $100 million addressing the very 

same issues that EPA said it wanted to address via the TMDL, and 

Fairfax had further plans to spend more to continue to improve the 

Accosting Creek without any mandates. 

We were left with no choice but to sue the EPA to contest its incredible overreach in water regulation related to runoff from a Federal highway. 

The lawsuit was no partisan exercise, the 10-member board of 

supervisors of Fairfax County, seven Democrats and three Republicans, voted 9 to 1 to join VDOT in the lawsuit. This Democratled local government was even willing to sue in July 2012, right 

in the heat of the President’s reelection campaign in a swing State. 

We won overwhelmingly. The Federal court was aghast that the 

EPA would try to twist and stretch the Clean Water Act so badly. 

There is a warning here for this committee. I know the administrator has made a number of ‘‘restrained’’ comments about what 

69 

the regulation or some of the regulations you are contemplating 

will or won’t do, and I am here to tell you that they will take it 

to what you think is the limit and beyond, way, way beyond. 

And they don’t care about the costs or the lost jobs. And I choose 

the phase ‘‘they don’t care’’ quite intentionally. 

EPA knew that what they were trying to force Fairfax County 

and VDOT to do with the TMDL would not even achieve their own 

environmental goals. And even faced with the pleading of one of 

the most aggressive local governments in Virginia when it comes 

to environmental stewardship, EPA would not give one inch. They 

were merciless. 

Setting the approximately $270 million in costs that would have 

been necessary to comply with EPA’s illegal road-related TMDL, let 

me explain what compliance would likely have required in realworld terms. 

Because EPA’s complaint was with rainwater flowing off of the 

Beltway, and because VDOT didn’t own any property they could 

use to slow the flow of the rainwater, we would have had to condemn houses in some old middle-class neighborhoods along the 

Beltway, as long as some small businesses. After evicting the longtime residents, VDOT would have torn down their houses and built 

retaining pools and planted grass to allow the water to soak into 

the ground instead of flowing into the Accosting. 

As one citizen, I find the EPA’s willingness to destroy businesses 

and evict people from their homes for virtually no environmental 

benefit not just offensive, but scary. This is an agency that is out 

of control with its own power, and it concerns me that this committee is now considering expanding that power; power to displace 

families and destroy businesses. 

Finally, as a practical matter, the authority this committee is 

contemplating granting to EPA would give EPA veto power over an 

enormous number of local governments’ land use decisions. And 

EPA’s track record of simply not caring about the impact its decisions have on families, businesses, and economic opportunities suggests this committee should be going in exactly the opposite direction regarding EPA power and authority. 

Thank you. 

[The prepared statement of Mr. Cuccinelli follows:] 

70 


97801.060
71 


97801.061
72 


97801.062
73 


97801.063
74 

Senator CARDIN. Thank you very much. 

Mr. Cohen. 

STATEMENT OF GREG COHEN, PRESIDENT & CEO, AMERICAN 

HIGHWAY USER ALLIANCE 

Mr. COHEN. Mr. Chairman and members of the subcommittee, I 

appreciate this opportunity to present the views of the American 

Highways Users Alliance regarding transportation infrastructure 

runoff. 

Before I begin my summary, I just want to say that we applaud 

the bipartisan leadership of this committee for introducing the 

highway title of MAP–21 reauthorization bill. I have testified many 

times on this need and we urge a full committee vote in support 

of the bill that was introduced on Monday, this Thursday at the 

markup. 

From State to State, the availability of water restoration funds, 

the significance of the water resources involved, and the extent of 

water quality problems vary tremendously. The availability of Federal funds to address water quality, including pollutants from runoff, is critical. Incremental progress should be made in a manner 

that focuses on goals and outcomes, where States learn from one 

another, rather than an approach that mandates that every State 

do the exact same list of activities under very different circumstances. 

Special care should also be made to understand that incremental 

progress in improving water quality should not come at the expense of other important needs, such as the economy and public 

safety. 

So how do we address our water quality needs without unintended consequences, like exacerbating our highway funding challenges or slowing down transportation project approvals? Some approaches can be helpful, while others actually create more problems. Let me briefly discuss some possible approaches and why we 

regard some favorably and others as problematic. 

Option 1: Congress could authorize appropriations for a significant new program for funding to the States for mitigation and 

treatment of watersheds, with flexibility and technical assistance, 

and empower the States to consider innovative approaches. Separately, or as part of such a program, Congress can encourage closer 

coordination with the State Transportation Departments on issues 

related to transportation runoff. This approach provides a holistic 

method to address the challenges and would allow restoration management to consider all sources of watershed degradation, including 

transportation runoff. Aggressively funding this approach would 

address the problem without negative impacts to public safety, congestion relief, and other goals or the goals of MAP–21. 

Option 2 would be to continue to allow project mitigation to be 

an eligible expense within the highway program. Currently, mitigation is eligible under the transportation alternatives and the traditional highway construction programs. In having provided this option, Congress was aware that outlays from the Highway Trust 

Fund for stormwater features would reduce some outlays for other 

worthy projects. Yet, it can help address community concerns about 

the environmental impact of transportation projects. As an examVerDate Aug 31 2005 08:26 Jan 20, 2016 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\97801.TXT VERN
75 

ple, I worked on a project called the Inter county Connector in 

Maryland. That was a project that involved significant stormwater 

management and watershed restoration, to the extent that the watershed is reportedly in better condition after road construction 

than before the ICC was built. In other locations it may not be effective, desirable, or worthwhile to tie a highway project to a watershed restoration effort. Flexibility for the States is the key. 

Option 3: Congress could create unfunded Federal mandates that 

require specific EPA-approved designs for certain types of highway 

improvements in order to address runoff. We oppose this approach. 

A design mandate would address runoff in a piecemeal, project-byproject manner, ignoring several issues. First, the current best 

practice is watershed-wide approach, rather than looking at the design of an individual highway project in isolated areas where the 

road is being improved. Second, this approach would potentially 

delay and complicate transportation project approvals, even making 

some safety improvements infeasible. Third, this approach may include requirements that are difficult or impossible to achieve in 

certain areas. 

Before closing, let me mention that the EPA has recently released proposed Section 404 wetland permit regulations. The latest 

rulemaking is quite controversial among my members. I know that 

obtaining Federal approval for Section 404 permits can be a real 

challenge, in some cases triggering a full NEPA review in preparation of an EIS. 

Here is just one example where we believe there is a problem: 

The EPA wants the authority to regulate the filling of manmade 

roadside ditches. The practical impact is that if a county government wants to add safety shoulders to a stretch of a dangerous 

two-lane rural road, even when there is no Federal funding involved, the county could then be required to avoid and minimize 

the impact to these manmade ditches. If that is not feasible, a permit has to be issued to fill the ditches and a mitigation plan is 

needed. Even if an avoidance minimization plan would stretch the 

resources of the county, it would not be able to proceed. 

While waiting to get through the Federal bureaucracy, the safety 

of motorists on the road would be at risk. This is part of the reason 

why it takes so long to get projects done. Congress could serve people and the environment better by approaching watershed restoration and water quality improvements in a more rational, cost-effective, and holistic way. 

In conclusion, among the various options to promote clean water, 

we recommend Congress provide a significant General Fund authorization for watershed restoration and continue to allow features that address that issue to be an eligible expense under the 

highway program. We ask Congress to fund transportation infrastructure and watershed restoration programs independently so 

that these worthy programs are not competing with each other for 

Federal funds. And we urge Congress not to take any action which 

would slow down or lead to the cancellation of needed highway 

projects because of expensive design mandates or redirection of 

highway funds. 

Thank you for providing the Highway Users this opportunity. 

[The prepared statement of Mr. Cohen follows:] 

76 


97801.055
77 


97801.056
78 


97801.057
79 


97801.058
80 


97801.059
81 

Senator CARDIN. And thank you for your testimony. 

Mr. Monette. 

STATEMENT OF ANDRE MONETTE, ATTORNEY, 

BEST BEST & KRIEGER 

Mr. MONETTE. Good afternoon, Chair Cardin and Senator Vitter. 

My name is Andre Monette and I am an attorney with the law firm 

of Best & Krieger. I represent public agencies, ranging from transportation districts to water districts, municipalities, and school districts on Clean Water Act issues throughout California. 

But first let me thank the committee for having me here today. 

It is a great honor to provide testimony on this extremely important issue. 

I just have a few points to make. 

The first one is that there is absolutely no question that 

stormwater runoff from transportation projects is a source of pollution in the Nation’s waterways. Obviously, the pictures that were 

shown and the testimony from this panel demonstrate that, and it 

is common sense. 

But what is more important and I think the question for this 

committee, for the Senate, is whether or not the States and the 

EPA have the tools that they need already to address that problem. 

And the answer to that question is yes, absolutely. The Clean 

Water Act and the NPDES program within the Clean Water Act 

give the States and gives the EPA the ability to regulate the full 

range of discharges from transportation infrastructure projects and 

other types of projects, and it gives the EPA and the States the 

flexibility to do that on a case-by-case, site-by-site, project-byproject basis, which is appropriate given stormwater and the nature of stormwater. Hydrologic conditions vary from site to site, 

and as a result of that the stormwater profile of a project is going 

to vary from site to site. So obviously the management practices 

that are implemented at a site to control stormwater need to match 

the hydrologic conditions of that area. 

What is not helpful to stormwater control is one-size-fits-all, topdown, command and control regulation and infiltration and management strategies that are implemented and issued in Washington, and expected to be implemented across the Country. The 

hydrology of this Country is so varied it is silly to even mention. 

Projects in the Everglades are going to be very different from 

projects in the Mojave Desert or Oregon or Alaska, and it makes 

sense that dischargers and regulators retain the flexibility to implement the management practices they need on each project. 

So the second point I wanted to make, and this brings me to that 

second point, is to the extent that there are waters or activities or 

discharges that are beyond the reach of the Federal Clean Water 

Act, the States retain the ability to regulate those activities and 

discharges, and many, many States have comprehensive, strong 

programs. Oregon is here today; they have an excellent program. 

California has an excellent program. The States retain that ability 

and they don’t need the Federal Government and Federal agencies 

to come in and overreach their authority and manage stormwater 

because they think they can do a better job at it; and Mr. 

Cuccinelli’s testimony is an excellent example of that. 

82 

So an example of that is that we are seeing now is the EPA’s proposed rulemaking on waters of the United States. There is a very 

real danger for the proposed rule that was issued last month that 

waters of the United States and thereby the reach of the Clean 

Water Act is going to be extended well beyond what Congress intended and what the courts have interpreted the Clean Water Act 

to mean, and I have two examples of that. 

The first involves municipal stormwater systems. As you all 

know, municipal stormwater systems are primarily open channels 

and ditches; sometimes it is a canalized stream, a lot of times it 

is a ditch or a channel or a canal that has been constructed to convey flood waters away from houses and people. Under the proposed 

rule, many portions of stormwater systems that are internal to the 

system are going to be designated as waters of the United States, 

and what that means as a practical matter is that these waters are 

going to have to meet a fishable and swimmable standard under 

the Clean Water Act and that designation would prevent use of 

those waters for treatment controls and would force discharges that 

are internal to an MS–4 system to meet a fishable, swimmable 

standard. Obviously, that is not tenable for a discharger. 

The other example where the proposed rule would potentially 

overreach is in the proposed definition of adjacent waters and 

neighboring waters. The proposed rule is going to designate waters 

that are within the floodplain of a traditional navigable water as 

a water of the United States. Floodplains can be hundreds of miles 

wide in some places, many miles wide at a minimum; and now isolated waters that were traditionally isolated under court decisions 

like the Solid Waste Agency of Northern Cook County, are going 

to be considered waters of the United States and subject to the 

Clean Water Act. 

I am just about out of time, so I thank you for the opportunity 

and I will conclude my testimony. 

[The prepared statement of Mr. Monette follows:] 

83 


97801.064
84 


97801.065
85 


97801.066
86 


97801.067
87 


97801.068
88 


97801.069
89 


97801.070
90 


97801.071
91 


97801.072
92 


97801.073
93 


97801.074
94 


97801.075
95 


97801.076
96 


97801.077
97 


97801.078
98 


97801.079
99 


97801.080
100 


97801.081
101 


97801.082
102 


97801.083
103 


97801.084
104 


97801.085
105 


97801.086
106 


97801.087
107 


97801.088
108 


97801.089
109 


97801.090
110 


97801.091
111 


97801.092
112 


97801.093
113 


97801.094
114 


97801.095
115 


97801.096
116 


97801.097
117 


97801.098
118 


97801.099
119 


97801.100
120 


97801.101
121 


97801.102
122 


97801.103
123 


97801.104
124 


97801.105
125 


97801.106
126 


97801.107
127 


97801.108
128 


97801.109
129 


97801.110
130 


97801.111
131 


97801.112
132 


97801.113
133 


97801.114
134 


97801.115
135 


97801.116
136 


97801.117
137 


97801.118
138 


97801.119
139 


97801.120
140 


97801.121
141 


97801.122
142 


97801.123
143 


97801.124
144 


97801.125
145 


97801.126
146 


97801.127
147 


97801.128
148 


97801.129
149 


97801.130
150 


97801.131
151 


97801.132
152 


97801.133
153 


97801.134
154 


97801.135
155 


97801.136
156 


97801.137
157 


97801.138
158 


97801.139
159 


97801.140
160 


97801.141
161 


97801.142
162 


97801.143
163 


97801.144
164 


97801.145
165 


97801.146
166 


97801.147
167 


97801.148
168 


97801.149
169 


97801.150
170 


97801.151
171 


97801.152
172 


97801.153
173 


97801.154
174 


97801.155
175 


97801.156
176 


97801.157
177 


97801.158
178 


97801.159
179 


97801.160
180 


97801.161
181 


97801.162
182 


97801.163
183 


97801.164
184 


97801.165
185 


97801.166
186 


97801.167
187 


97801.168
188 


97801.169
189 


97801.170
190 


97801.171
191 


97801.172
192 


97801.173
193 


97801.174
194 


97801.175
195 


97801.176
196 


97801.177
197 


97801.178
198 


97801.179
199 


97801.180
200 


97801.181
201 


97801.182
202 


97801.183
203 


97801.184
204 


97801.185
205 


97801.186
206 


97801.187
207 


97801.188
208 

Senator CARDIN. Well, let me thank all seven of you for your testimony. I thought it was extremely helpful in trying to get a handle 

on the issues. I am going to start with Ms. Coble in that the importance of dealing with the pollutants that you mentioned, the nitrogen levels, the phosphorus, and the sediment from the major 

sources that go into the Chesapeake Bay watershed. We have had 

programs to deal with our farmers; we certainly are dealing with 

the treatment of waste; and we have storm runoff, which are the 

three largest sources of identified pollutants going into the Bay. 

You indicate that as much as one-third in certain areas come from 

storm runoff. If we did not include storm runoff as one of the regulated pollutants going into the Bay, the burdens on the other sectors would be much greater, making it much more challenging for 

farming operations or for our municipal water managers. 

So how important is it, as you see it, from the Chesapeake Bay 

management that storm runoff be a major part of the strategy to 

deal with the Chesapeake Bay? 

Ms. COBLE. It is critically important that it be included in the 

equation. The Chesapeake Bay watershed is under a TMDL to reduce nitrogen, phosphorus, and sediment pollution because the 

Chesapeake Bay is an impaired waterway. The quality of it is such 

that it doesn’t sustain life in part of its volume each summer and 

there are requirements to reduce those pollutants. And there is not 

one of us that lives in the watershed that isn’t part of the problem 

and, therefore, part of the solution; nor is there one sector that is 

not part of the problem and part of the solution. 

As I said, in some States, such as Maryland, up to a third of the 

pollution is coming from urban areas, and in some watersheds 

around D.C., for example, it is even far more than that. If we don’t 

include stormwater in the reduction strategy, the burden gets higher and higher on every other sector if we want to stay committed 

to a goal of clean water. If we want to compromise on that goal, 

then we can let stormwater go. I would argue that would be the 

wrong approach, though. 

Senator CARDIN. Mr. Cuccinelli, in regards to that Northern Virginia case, I have looked at it very closely and it did deal with the 

authority under TMDL, no question about that, but did not deal 

with the authority under Clean Water Act to deal with pollutants 

that come from stormwater under the NPDES, as was pointed out, 

I think, by Mr. Monette. 

I do very much appreciate Mr. Medina’s comments and would 

love to get further clarification on that. You are indicating that it 

actually could be cost-effective to incorporate storm runoff in transportation designs from the beginning. If I heard you correctly, I 

thought you said in some cases might even be less expensive, so 

it would not be a choice between more road building or dealing 

with storm runoff. 

Mr. MEDINA. Well, that has been the experience in other countries. Like I mentioned in my testimony, the UK, that has been the 

lesson that has been learned as far as constructing the systems, 

mostly because they have been planned from the beginning with 

that in mind. When it comes to a retrofit situation, it is a different 

story, because we already made an investment and now we have 

to rip it all up and build something new. 

209 

Another thing to keep in mind is that when we calculate cost, we 

do it in a very localized way; this is how much it is going to cost 

to build this highway. But we never factor the cost, what the municipalities that have to deal with the problems when something, 

not just a roadway, but any particular development cost us probably in the waterways. So when we look at those things holistically, 

when we look at the benefits that are achieved by, say, green infrastructure in terms of esthetics and the creation, things that are 

very hard to monetize but are no less real, if we looked at all those 

things together, we will find a much better picture when it comes 

to building sustainable infrastructure. 

Senator CARDIN. Thank you. 

To Mr. Mather and Mr. Gibson, Mr. Gibson, I am sorry that the 

photos that you had in your written testimony were not displayed, 

because they are pretty shocking, and the type of damage that you 

all have to confront. Now, from a local government’s point of view, 

a State government’s point of view, once the damage is done, you 

have to deal with that. So you may have been able to build more 

roads, but now you have the problem how you are going to fix the 

roads. So from a cost-effective basis, wouldn’t it be better to deal 

with the costs of runoff up front than having to deal with the maintenance, repair, and damage cost that you confront as you move 

forward? 

Mr. GIBSON. Correct. That is the one thing we do see. If we don’t 

manage these systems up front, then you have the other utilities, 

stormwater utilities, you have gas and electric companies. You 

have the transportation departments themselves have to fix these 

damages that occurred at prior times when they were build. 

Senator CARDIN. I will just make one comment. As we have been 

dealing with the reauthorization of surface transportation, I have 

been advocating for our committee to put attention on maintaining 

our existing transportation infrastructure and less attention on 

building new infrastructure. I want new infrastructure, don’t get 

me wrong, but things are falling apart. And if you neglect that you 

currently have, you are not doing a service by building additional 

roads that may lead to unsafe conditions and unmanageable transportation systems. 

With that, I will turn to Senator Vitter. 

Senator VITTER. Thank you, Mr. Chairman, and thanks to all our 

witnesses. 

Mr. Cuccinelli, I wanted to ask you, because I thought your testimony was very striking in the context of EPA’s recent proposals to 

expand its authority under the Clean Water Act. I know you follow 

this. I am sure you have heard the statements from the administrator, which basically are saying this is clarification of existing 

law, this is no big deal. I am curious, what is your gut reaction of 

that, having lived through the Accotink experience and litigation 

and the sort of position EPA took in that instance? 

Mr. CUCCINELLI. Well, I don’t think by any means it is limited 

to that instance. One of the institutional problems you have is that 

the EPA, whatever grant of authority is provided, always overreaches it. I don’t know of an example, and I don’t think a person 

in this room could name an example, where Congress set out some 

grant of authority to the EPA and they didn’t actively, at some 

210 

point thereafter, look to push the outer envelope of that, and to do 

it. I mean, Judge O’Grady’s ruling in our case was not appealed, 

which is rather unusual for EPA. They are tenacious fighters, and 

to not appeal tells you just how swamping that ruling was. 

In about 20 years of litigating—and I was the lead attorney on 

that case, I argued the case, litigated alongside the board of supervisors of Fairfax—I can’t remember a judge’s order where I 

wouldn’t change a sentence; and it was that powerful. The judge 

was so overwhelmed with what EPA was trying to do, and they 

clearly stated this is experimental, and if we can do it here we are 

going to take it everywhere. 

Now, understand the Accotink has been around a long time. We 

are the oldest part of America here in Virginia, and I brought with 

me one sentence from George Washington’s diary from 1772: Set off 

for Williamsburg, but not able to cross Accotink, which was much 

swelled by the late rains. I was obliged to return home again. That 

was when he was a member of the House of Burgesses, now the 

House of Delegates. And this isn’t a new problem in our part of the 

State. 

My cautionary warning to you all is that when you don’t already 

have control, and by you I mean the legislative branch, over the aggressiveness and extent of the reach of this rogue agency, to grant 

it more power and authority is an extremely dangerous thing. And 

I will just use one example from other testimony; it was glossed 

over a little bit. The cost difference between taking greater care to 

deal with stormwater as you build new facilities versus the radically dramatic impacts and costs of retrofitting, the order of magnitude is extraordinary, and the impacts on jobs are not positive, 

they are negative. 

If they were positive, Milton Friedman’s old comment about 

digging the Panama Canal with spoons would make sense because 

there would be a lot more jobs. We are talking about destroying 

businesses in the one single case that I talked to you about in Virginia and evicting families who had lived in their homes for decades. Even in a transient community like Northern Virginia, these 

were old middle class neighborhoods, so older folks lived there, inevitably, people more often displaced, and they are going to be not 

merely put out, but the economy around them is going to be 

harmed. 

This is an economic negative overall, and unless you categorically 

hermetically seal the EPA and only let them deal with this going 

forward on new projects, then you are going to have an agency that 

is going to run amuck and your local governments are going to be 

coming back to you and saying why is the EPA at the table for 

local land use. 

Senator VITTER. Great point. 

Mr. Medina, to come directly off that, because it does allude to 

your comment, I want to make sure I understood it and underscore 

it. It is true that in terms of cost-effectiveness it is a different planet whether you are talking about starting from scratch on a new 

project versus retrofitting existing infrastructure, would you agree 

with that? 

Mr. MEDINA. That is correct, Senator, and that happens everywhere, in anything that we have to do. It is cheaper for us to eat 

211 

healthy and maintain our bodies than have a quadruple bypass, 

right? So that is exactly what we are talking about here. However, 

one important thing that we need to keep in mind is that we can 

do things wisely and correctly if we wait for the right opportunity. 

We don’t have to spend all these millions of dollars ripping up 

roads. Those roads will come up for rehabilitation at some point in 

their useful lives. That is the time when we can say we did things 

wrong; we have a second chance here to do it right; we are going 

to apply the principles that we know now are useful. 

Senator VITTER. And you also mentioned the different experience 

in other countries. I think in many of those cases there is a big difference structurally between here and there because up there agencies with the authority to come up with these solutions are usually 

the ones paying for it. Here it is fundamentally different because 

the EPA is almost never paying for it and, therefore, has no practical limit in terms of the sort of mandates and solutions it tries 

to impose on either private owners or local jurisdictions. Isn’t that 

a big difference? 

Mr. MEDINA. That may be so, but the cost still has to be borne 

by somebody. So if we have environmental degradation, somebody 

is going to have to pay for that, whether it is an agency or a private landowner. It just doesn’t go away. If we don’t do things right 

from the beginning, somebody is going to have to shell out the dollars or the pound sterling to do that. 

Senator VITTER. And to go back to the distinction between completely ripping up or retrofitting an existing infrastructure versus 

when you are building something new, certainly I think everybody 

would agree EPA is seeking more authority in this area across the 

board, not just new projects, not just brand new planning, is that 

correct? 

Mr. MEDINA. I don’t know the details of that. I know that from 

the point of view of a professional, what makes sense from the 

point of view of technical expertise and financial soundness is to 

wait for the right opportunity to do those things right. 

Senator VITTER. Thank you. 

Senator CARDIN. Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman, and thank you to 

the panel for being here today. 

Mr. Cohen, roadside ditches not only preserve the quality of our 

Nation’s roads, but they increase safety, and the chairman of our 

subcommittee referred to safety in his previous comments. We all 

know that those ditches prevent the pooling of stormwater on road 

surfaces; that helps with safety. We are not going to see as many 

accidents with them. In my discussions with the Nebraska Department of Roads, it has been brought to my attention that conforming 

to regulations under the proposed definition of waters of the United 

States may preclude these best design practices of ditches, and that 

would compromise safety. Can you expand on the impact that this 

regulation may have on public safety with regards to road construction? 

Mr. COHEN. Sure, I would be happy to. In my testimony I provided one example, and that is when you are trying to engineer a 

road improvement and you want to add safety features to that 

road, say you have a rural road where there are a lot of accidents 

212 

or you have a bottleneck of some sort and you need to add additional safety shoulders or an intersection safety improvement, 

sometimes you have to impact a roadside ditch, and often these 

were manmade ditches that are not representative of the original 

hydrology of the area. 

But under the EPA’s proposed rulemaking, they could basically 

claim jurisdiction over that work and stop you from doing that 

safety project until you developed an avoidance plan or a mitigation plan, including digging new ditches, which may not be necessary after you have added your safety shoulders. So that is an 

example of sort of an absurd outcome, but in my experience as an 

engineering working for the State Highway Administration, there 

are numerous absurd outcomes where you have projects that just 

can’t be completed because of this very high bar. And there have 

been cases that I am personally involved in where people were getting killed on the road that you couldn’t improve until you came 

up with alternatives that were so expensive that they basically 

caused the problem to be canceled or indefinitely delayed. 

Senator FISCHER. You also mentioned the I view it as a problem 

in the delay in getting that Section 404 permit. 

Mr. COHEN. Yes. 

Senator FISCHER. If we are looking at expanding the definition 

of waters of the United States, how is that going to affect that permitting process? 

Mr. COHEN. It will certainly make it a longer process and a more 

expensive process. 

Senator FISCHER. You say a more expensive process. That doesn’t 

just apply to the permitting process itself; it also applies to road 

construction and the added costs that we are going to see our highways and bridges costing, correct? 

Mr. COHEN. Correct. Not only the extra cost of meeting the demands of the agencies, also the cost of the delay. Every project that 

is delayed for 10 years doubles in cost, approximately. And I work 

for the State of Maryland, which is certainly a very progressive, 

pro-environment State, and wants to do the right thing environmentally. As I indicated in my testimony, we want to do the right 

thing environmentally, but let’s provide the flexibility and tools and 

the advice and the best practices without creating mandates for 

things that don’t make sense or aren’t the most cost-effective approach. So we can do the right thing, but we need to recognize the 

States are doing the best they can and that they want these good 

outcomes. 

Senator FISCHER. Right. And do you think allowances should be 

made for ditches that aren’t contributing to the flow in any way of 

navigable waters, our traditional rivers that are out there? And, if 

so, do you think that definition would pass judicial muster? 

Mr. COHEN. I think that, as some of the other witnesses have 

said, that commented on this issue, there has been an effort here, 

in my opinion, to stretch the eligibility as far as possible to a level 

that does not meet the intent of the court in either of the two major 

Supreme Court cases on the 404 regulations. So I think ultimately 

it will not survive. Also, there are Members of Congress that attempted to do the same thing through legislation, but that did not 

have the support of Congress, so basically what is happening here 

213 

is the Administration is trying to do it on their own, without congressional intent. It is sort of we are going to stretch this thing as 

far as we can, whether or not Congress agrees. So I don’t think it 

will pass muster. But I am not a lawyer; these two men are lawyers. 

Senator FISCHER. I hope we get a second round. I will ask them. 

Thank you, sir. 

Mr. COHEN. Thank you. 

Senator CARDIN. We are going to have a second round. 

Let me just make an acknowledgment. I think we all agree that 

we are better off if we can put into the design of our transportation 

systems the storm runoff management. It is less costly and that is 

when it should be done. The challenge is that we are where we are 

in pollutants going into our waters today, and there is a responsibility for clean water, so you need to deal with the realities that 

are on the ground, whether it is a farming operation or whether 

it is an old municipal wastewater treatment facility plant or whether it is a road that was built inappropriately for storm runoff. So 

it presents a challenge, but I think when you have the opportunity, 

as Mr. Medina said, to do the right thing, you should take advantage of that, because it is not only going to be good for our environment, it will also save us resources in the long run. 

Let me also comment in regards to the definition of waters. 

There is a proposed regulation. Comments are being sought. Many 

thought it was important to have clarification after the Supreme 

Court decisions. There has been difficulty in getting bills passed 

here in the U.S. Congress. I would urge people to take advantage 

of the comment period, because it is my understanding that manmade ditches are exempt from this definition. But, again, if that 

needs clarification, let’s talk about it, because I didn’t think that 

was under the regulation. 

Mr. Mather, I want to ask you, since Oregon has been successful 

politically in moving forward on many of these projects from the 

beginning, it seems to me that you have crossed the political hurdle 

of choosing to do things that are friendlier toward the environment, 

even though it may affect the timing of transportation projects in 

your State. How is the politics of trying to move forward in these 

areas? 

Mr. MATHER. Chairman Cardin, I will probably not talk too much 

about the politics, but more talk about our agency and how we 

have implemented some of those projects. As I talked about, the 

legislature in our State passed actually two major funding bills in 

the last 10 years which have increased the amount of investment 

that we have made in transportation, and those have provided 

challenges for us, but also opportunities for us. One of those opportunities was to sit down with the regulatory agencies and really 

work on streamlining our processes to the benefit of both agencies, 

to them and for us. We are spending less money on the regulations, 

less money going through the process, and more money out on 

product on the ground. One of those programs our legislature 

passed was a $1.3 billion investment in bridges, 365 bridges 

throughout the State. We are just completing that 10-year program 

on time and on budget. One of the keys to that was the permitting 

process that we developed. We estimated that if we had not used 

214 

our streamlining process, it would have cost us $70 million more 

to go through the permitting process for those 365 bridges and we 

would not have completed the project on time. So those $70 million 

are reinvested back into transportation, and that is really the win 

for us in transportation. The win on the environmental side is we 

have increased water quality. 

Senator CARDIN. Very good. 

To Mr. Cohen and Mr. Monette, you made a very interesting suggestion, and that is that the funding sources for doing this, we 

should be a little more creative. You also made a point that I agree 

completely, about regional differences and the flexibility of doing 

what is most cost-effective based upon your local needs, and we 

have to build that into whatever system we have for either funding 

or for the regulatory system. I agree with you on both points. 

It is very interesting. Talking about the Chesapeake Bay watershed for one moment, which I am pretty familiar with, we do have 

special funding to deal with the two other major sources of pollutants; we do for our farmers and we do for our treatment facility 

plants. We don’t really for stormwater runoff. There is really no 

special program out there that helps deal with the unique needs of 

pollutants coming into the watershed through stormwater. 

So do you have any further insight or suggestions as to how we 

could perhaps deal with the funding outside of the transportation 

itself to deal with stormwater runoff? 

Mr. COHEN. I guess, Mr. Chairman, that is exactly what my recommendation, my No. 1 option would be in my testimony. Sort of 

the discussion that just occurred between the ranking member and 

Dr. Medina, when you have to pay for these improvements, I think 

the desire to make them as cost-effective as possible makes a lot 

of sense. And if Congress were to authorize for appropriations some 

money to do these restoration projects, including coordinate with 

the transportation departments, say Maryland Department of Environment would coordinate with SHA using money authorized by 

Congress specifically for water restoration efforts, that would be a 

good thing. What I think would be a bad thing would be if you take 

it out of the highway funding, basically. The highway funding that 

comes from the Highway Trust Fund. What I would suggest is an 

authorization of appropriations for environmental agencies to do 

that. So they are both working toward important goals and they 

are not competing with each other for funding. 

Senator CARDIN. Mr. Monette. 

Mr. MONETTE. Thank you, Senator Cardin. I would agree with 

Mr. Cohen on the funding issue. I would just caution that we want 

to be very careful about any requirements coming from the Federal 

Government that would mandate specific practices or infiltration 

standards on an across-the-board manner because, again, the hydrologic conditions vary. 

Also, I would like to reiterate the fact that if local governments 

are stuck with these costs, it is a tremendous burden for them. 

Many States have funding issues and funding restrictions that prevent local governments from imposing taxes or raising fees, and 

that doesn’t seem to matter to certain Federal agencies, including 

the EPA, when they impose these restrictions. So it is very helpful 

if there could be block funding or basically the idea that if the FedVerDate Aug 31 2005 08:26 Jan 20, 2016 Jkt 000000 PO 00000 Frm 00218 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\97801.TXT VERN
215 

eral Government is going to impose these requirements, that it provides the funding to do so. 

Senator CARDIN. Thank you. 

Senator FISCHER. Senator FISCHER. Thank you, Mr. Chairman. 

Mr. Monette, in your testimony you talked about irrigation 

ditches, correct? 

Mr. MONETTE. That is correct. 

Senator FISCHER. And how would the proposed rule affect those 

irrigation ditches that are currently exempted under Section 404? 

Mr. MONETTE. Certain irrigation ditches are currently exempt, 

and some of those should remain exempt. What—— 

Senator FISCHER. How about the ditches where farmers transport 

water throughout their field? 

Mr. MONETTE. And that is something that could fall under regulation under EPA’s proposal, especially if the irrigation ditches conveyed more than just irrigation return flows; if there is septic discharges into the channel, things like that. Any other kind of waste 

discharge into that channel converts it from being an irrigation return flow into another kind of water body that is subject to regulation by EPA. And EPA is reaching with this rule not just to those 

kinds of ditches, but to any ditch that has perennial flow. 

Senator Cardin, you mentioned your belief that ditches were exempt, and that is not the case. Ditches with perennial flow—and 

most ditches across the Country are going to have perennial flow. 

Even in Southern California there is a lot of return flows from irrigation from yards. 

Senator CARDIN. I won’t count this against Senator Fischer’s 

time. 

My understanding is if you construct the ditch as part of a road 

construction, that is not part of the proposed regulation. 

Mr. MONETTE. That is incorrect, Senator. Under the proposed 

rule, ditches that are constructed and have perennial flow that contribute to discharge downstream at some point to a traditional navigable water—— 

Senator CARDIN. We will check it out. My understanding is manmade ditches are excluded. So we will have to take a look at it, and 

maybe we can join together in a comment. 

Mr. MONETTE. Thank you. 

Senator CARDIN. Senator Fischer. 

Senator FISCHER. Thank you. 

So when we look at these irrigation ditches and they are affected, 

I believe too, can you give me your opinion how that is going to affect the family farmer? 

Mr. MONETTE. It could be a major impact. 

Senator FISCHER. How so? 

Mr. MONETTE. First of all, if irrigation ditches and ditches on an 

individual property are considered waters of the United States, any 

kind of work or uses of the land adjacent to that ditch and the 

ditch are going to require a 404 permit from the Army Corps of Engineers. 

Senator FISCHER. What would the cost be for a family farmer to 

get one of those permits who has a small, average farm? What 

would be the cost dollarwise? What would the cost time wise? I 

216 

know what it is for transportation and for our State Department 

of Roads. How does that affect an individual? 

Mr. MONETTE. For an individual farmer, again, if it was falling 

under the jurisdiction, if the channel was a water of the United 

States, it could be tens of thousands of dollars and could take years 

to get that approval, and I think that is on the low end. We have 

seen them in hundreds of thousands of dollars for relatively small 

projects for parks, for instance. So that is not an unreasonable estimate by any means. 

Senator FISCHER. Right. And road builders, they already operate 

under construction stormwater permits, right? 

Mr. MONETTE. That is correct. 

Senator FISCHER. And that is Section 402 of the Clean Water 

Act, isn’t that correct? 

Mr. MONETTE. That is correct. 

Senator FISCHER. So if ditches are going to be regulated as waters of the U.S., would you expect at some point that these ditches 

are going to have water quality issues? 

Mr. MONETTE. Yes, I would. 

Senator FISCHER. Are they going to have standards that they 

have to meet? 

Mr. MONETTE. Yes, they will. They will have to meet the water 

quality standards that are designated for that State. 

Senator FISCHER. And how costly is it going to be if roadside 

ditches are required to achieve the Clean Water Act’s default 

standard, that it is fishable and swimmable? 

Mr. MONETTE. I can’t estimate. What I would refer the committee to are the estimates that were proposed for compliance with 

a bacteria standard for the Los Angeles area, and that was in the 

hundreds of billions of dollars. 

Senator FISCHER. Do we see a lot of fishing in roadside ditches? 

We don’t in Nebraska. Where are you from? 

Mr. MONETTE. I am from Southern California, and, no, we typically don’t see that. 

Senator FISCHER. Do you see a lot of swimming? 

Mr. MONETTE. No. Usually they are fenced and you are not supposed to go in there. 

Senator FISCHER. Do you think maybe part of this rule is not a 

lot of common sense put into it? 

Mr. MONETTE. It would seem to me that, yes, this is a little bit 

excessive and reaching the edges of EPA’s authority under the 

Clean Water Act and the court decisions. 

Senator FISCHER. OK, thank you. 

May I ask another question? Thank you. 

Mr. Cuccinelli, if we see that these ditches are treated as waters 

of the United States, what do you foresee are going to be the Federal regulatory hurdles to be for the States and for localities who 

wish to build roads? 

Mr. CUCCINELLI. First of all, you need to understand the tactics 

they employ. They judge every project, good or bad, good or evil, 

from their perspective, and if it falls in the evil category, their tactic is to stall, it is to wait. And Mr. Monette’s example of the family 

farmer, the tens of thousands of dollars hurt, but you hold them 

in place for years and you can literally wipe them out; and that is 

217 

their intent. That tactic is being used across the board. It is being 

used all over the place. 

Senator FISCHER. Well, I don’t know—— 

Mr. CUCCINELLI. And it is awfully hard to fight the Federal Government. 

Senator FISCHER. If I can interrupt you, I am not here to judge 

the intent of the agency, but I am just curious on any rules that 

you may see in the future that could impact a State or a locality 

with regards to road building. 

Mr. CUCCINELLI. Well, one of the things that hasn’t been mentioned is that if ditches start to not only get swept into this rule, 

but there is a question whether or not they may be swept into this 

rule, you will see local governments and State governments start 

to change and cancel projects. They will avoid this type of regulation in the way we do now. For instance, if $500 million of Federal 

money is coming for roads, we pile it into as few projects as possible so that we are captured by as few Federal regulatory nets as 

possible, because they bring projects to a screeching halt, they 

drive budgets far beyond planning estimates, and they kill projects 

using regulatory means. Whether they intend to or not, that is the 

result. 

Senator FISCHER. Thank you. 

Thank you all very much. 

Thank you, Mr. Chair. 

Senator CARDIN. Let me thank all seven of you again and let me 

just point out what I think is the obvious. The Clean Water Act 

was passed by Democrats and Republicans in Congress because of 

the importance of clean water; clean water to our public health, 

clean water to our way of life, clean water to what we believe is 

a responsibility to future generations. And we have a responsibility 

to make sure that is carried out. EPA is the agency responsible to 

make sure that in fact occurs. 

Just talking parochially once again about the Chesapeake Bay, 

it is not only iconically important to people who live in the watershed, it is a $1 trillion economic impact, and if the health of the 

Bay suffers, the economic impact of our region suffers dramatically. 

And, yes, we want to make sure that we have the transportation 

infrastructure for the convenience of our public. We live in a very 

congested area of the Country here, in Washington particularly. I 

experience it every day, twice a day. 

So we certainly want to be mindful that we need to have decisions made, and we also have to have predictability. I enjoyed the 

exchange on the definitions of water. One thing is clear to me on 

any one I have talked to, whether it is someone who is strongly advocating for different types of regulations or less regulations, or 

those who want stronger regulations, they like to know what they 

are; and the Supreme Court decision has made some major question marks. So I think it is a responsibility of the Obama administration and a responsibility of Congress to give the proper direction 

so that you know what is expected so you can make those judgments as to whether this project makes sense or doesn’t make 

sense with the conflicting interest of needs for transportation 

versus the responsibilities we have for clean water and the environment. 

218 

I think that is a reasonable request and the responsibility rests 

on the Members of Congress and the Administration. That is another reason why we need to work together. I found the exchange 

to be extremely helpful on all of these subjects, but it leads me to 

the clear conclusion that this committee that has responsibility for 

authorizing how we prioritize infrastructure in this Country, it is 

in our interest to do it early, rather than late, in the planning 

stages to deal with these problems and not to say, well, let’s do it 

on the cheap and let a future Congress worry about the consequences of our decisions. So let’s make our investments wisely, 

mindful of our responsibilities to both the environment and to our 

infrastructure. 

With that, let me thank you once again, and with that the committee will stand adjourned. 

[Whereupon, at 4:22 p.m. the committee was adjourned.] 

STATEMENT OF HON. JOHN BOOZMAN, U.S. SENATOR

FROM THE STATE OF ARKANSAS

Chairman Cardin, I enjoy serving with you on the Water and Wildlife Subcommittee, and I look forward to reviewing the testimony from today’s hearing on 

highway stormwater runoff. Regretfully, I am unable to attend, as I am in Arkansas, recovering from a recent surgery. As always, I appreciate opportunities to work 

with you and all members of our Committee to find common ground and promote 

solutions to our country’s challenges. 

I also want to thank Senator Vitter for his assistance with today’s hearing. And, 

as always, I appreciate the work of the EPW Committee staff, and in particular 

Laura Atcheson, Brandon Middleton, and Bryan Zumwalt, each of whom assisted 

in preparation for this hearing. 

I share the view of our witnesses that thoughtful design and construction of roads 

can be used to mitigate environmental impacts or, in some cases, even produce environmental benefits. Without question, reducing the possible negative impacts of 

stormwater runoff is a worthwhile goal. At the same time, we must be smart and 

recognize the many other goals and priorities in highway construction, such as expanding economic opportunity, jobs, and commerce, improving citizens’ quality of 

life, and reducing traffic-related deaths and injuries. Also, as the Federal Government continues to irresponsibly borrow more than a billion dollars each and every 

day—money that citizens will have to repay in high taxes—we must also be careful 

to set wise and appropriate priorities. 

One of today’s witnesses shared a general concern in written testimony about the 

‘‘unintended consequences of exacerbating our highway funding challenges and slowing down project approvals.’’ I agree, and that’s why flexibility for states and communities is so important. Our states, county officials, and mayors must be able to 

build good projects quickly and affordably. Reducing the possible impacts of 

stormwater runoff is important, but local conditions and resources must be considered as the scope of such efforts is determined. A one-size-fits-all approach, dictated 

from Congress, would be a mistake. 

I also share the concerns, voiced by some, regarding the EPA’s recent water regulation power-grab proposal. This EPA power-grab will hurt our farmers, families, 

and small businesses. And today’s hearing illustrates that this scheme, in an attempt to regulate water adjacent to roadways, could even reduce safety, increasing 

the risk of highway deaths and injuries. Specifically, I am concerned that as the 

EPA begins to regulate highway ditches, it will become more difficult for transportation departments to make safety-improvements on existing roads and highways. 

We need to be thoughtful and cautious about our responsibilities related to these 

very important issues. There are constitutional and practical limits to the role that 

the Federal Government can and should play. We simply must ensure that important decisions impacting road construction, highway safety, and environmental protection are locally driven, where the voices of the people most directly impacted will 

be heard. 

Again, I look forward to reviewing the testimony and the record of today’s hearing. Thank you. 

Æ