```

[Senate Hearing 114-203]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 114-203

    OVERSIGHT OF THE ARMY CORPS OF ENGINEERS' PARTICIPATION IN THE 
DEVELOPMENT OF THE NEW REGULATORY DEFINITION OF ``WATERS OF THE UNITED 
                                STATES''

=======================================================================

                                HEARING

                               before the

                      SUBCOMMITTEE ON FISHERIES, 
                          WATER, AND WILDLIFE

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 30, 2015

                               __________

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

                                  ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

99-458 PDF                     WASHINGTON : 2016 
-----------------------------------------------------------------------
  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      
   
   
   
   
   
   
   
   
   
   
   
      
      
      
      
               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             FIRST SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska

                 Ryan Jackson, Majority Staff Director
               Bettina Poirier, Democratic Staff Director
                              ----------                              

             Subcommittee on Fisheries, Water, and Wildlife

                     DAN SULLIVAN, Alaska, Chairman
JOHN BARRASSO, Wyoming               SHELDON WHITEHOUSE, Rhode Island
SHELLEY MOORE CAPITO, West Virginia  THOMAS R. CARPER, Delaware
JOHN BOOZMAN, Arkansas               BENJAMIN L. CARDIN, Maryland
JEFF SESSIONS, Alabama               BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
JAMES M. INHOFE, Oklahoma (ex        BARBARA BOXER, California (ex 
    officio)                             officio)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                            C O N T E N T S

                              ----------                              
                                                                   Page

                           SEPTEMBER 30, 2015
                           OPENING STATEMENTS

Sullivan, Hon. Dan, U.S. Senator from the State of Alaska........     1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................   112
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................   137

                                WITNESS

Darcy, Jo-Ellen, U.S. Assistant Secretary of the Army............   113
    Prepared statement...........................................   115
    Responses to additional questions from:
        Senator Inhofe...........................................   120
        Senator Rounds...........................................   128
        Senator Fischer..........................................   130
        Senator Carper...........................................   133

                          ADDITIONAL MATERIAL

Letter to Jo-Ellen Darcy from Senator Inhofe, July 6, 2015.......   156
Letter to Jo-Ellen Darcy from Senator Inhofe, July 27, 2015......   161
Letter to Senator Inhofe from Jo-Ellen Darcy, received August 28, 
  2015...........................................................   169
 
    OVERSIGHT OF THE ARMY CORPS OF ENGINEERS' PARTICIPATION IN THE 
DEVELOPMENT OF THE NEW REGULATORY DEFINITION OF ``WATERS OF THE UNITED 
                                STATES''

                              ----------                              

                     WEDNESDAY, SEPTEMBER 30, 2015

                               U.S. Senate,
         Committee on Environment and Public Works,
            Subcommittee on Fisheries, Water, and Wildlife,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:32 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Dan Sullivan 
(chairman of the subcommittee) presiding.
    Present: Senators Sullivan, Whitehouse, Barrasso, Capito, 
Wicker, Fischer, Rounds, Inhofe, Cardin, and Markey.

            OPENING STATEMENT OF HON. DAN SULLIVAN, 
             U.S. SENATOR FROM THE STATE OF ALASKA

    Senator Sullivan. The Subcommittee on Fisheries, Water, and 
Wildlife will now come to order.
    And just for the record, it is, according to my clock, 
10:32. So we have been trying to gather up all the members 
here, but we also want to be respectful to the witnesses to 
start this relatively in a timely fashion.
    Good morning. The purpose of this hearing is to explore 
whether the experience and expertise of the Army Corps of 
Engineers provide support for the recently finalized rule that 
changes the regulatory definition of ``waters of the United 
States'' under the Clean Water Act.
    Congress has the constitutional authority, indeed the 
obligation, to conduct oversight actions of executive branch 
agencies, particularly on issues as controversial as the waters 
of the U.S., which now is opposed by 31 States.
    For too long, many of us believed that the Congress has not 
focused on these important issues, and in some ways looked the 
other way with executive branch agencies taking actions that do 
not conform with the law. We are changing that.
    Oversight is particularly important when we have a pattern 
of behavior from certain agencies, like the EPA, of 
consistently issuing rules that completely disregard the limits 
of their authority imposed by Congress. In fact, on June 26, 
just 3 days before the Supreme Court overturned the EPA's 
Mercury and Air Toxic Rule under the Clean Air Act, EPA 
Administrator McCarthy literally bragged on TV, on an HBO show, 
that the Supreme Court's decision ultimately would not matter 
because it took 3 years to get to the Supreme Court and, by 
then, most people subject to the rule had to abide by it 
anyways. ``Investments have already been made,'' she said.
    This is in addition to an agency that consistently loses 
court cases in the Supreme Court, and constituents certainly 
across Alaska, but I think all across America, Democrats and 
Republicans, believe that the EPA is a rogue agency accountable 
to no one. We see it in my State on issues like CD-5, GMT-1, 
where other agencies are told by the EPA what to do.
    Now, I have the utmost respect for the Corps of Engineers. 
I have worked with them for years, the civilian and military 
members of that organization. But the arrogance and disregard 
for the law that are evident in the WOTUS rule is something 
that is imperative that the Congress conduct oversight hearings 
with regard to that rule.
    It's no secret that many of us think that the final WOTUS 
rule goes far beyond the authority granted by Congress. At a 
hearing back on March 4th, I asked Administrator McCarthy for 
her legal analysis that supports the rule. There was no 
response. On July 14th, the chairman of this committee, 
Chairman Inhofe, and my Republican committee colleagues joined 
in a letter asking again for the legal analysis of the WOTUS 
rule. No response. We received nothing.
    All of my colleagues, whether Republicans or Democrats, on 
this committee and in the U.S. Senate should be concerned about 
such arrogance with regard to our constitutional duties to 
conduct oversight of this agency.
    Today, we are focusing on the factual record for the WOTUS 
rule. Whatever your views on the limit of authority under the 
Clean Water Act, we should all be able to agree that an agency 
rulemaking must be supported by a factual record. This might 
sound like a technical issue to some, but it is not.
    In numerous places, the preamble of the final WOTUS rule 
states that the rule's requirements are based on the science, 
agency expertise and experience, and case-specific 
jurisdictional determinations. To understand what documents the 
preamble is referring back to, in July, Chairman Inhofe sent a 
letter to the EPA asking for copies of the scientific studies 
that agencies relied on with regard to supporting this rule in 
a letter to Secretary Darcy asking for examples of the case-
specific determinations the agencies relied on.
    EPA has not yet identified any specific scientific studies 
in response to Chairman Inhofe's letter. We are awaiting a 
response, as well as a response to our longstanding request for 
a legal analysis before scheduling a hearing with the EPA.
    Secretary Darcy has responded to Chairman Inhofe's letter 
by candidly admitting that the WOTUS rule is not, I repeat, not 
based on the case-specific jurisdictional determinations of the 
Corps, even though the preamble to the rule makes that claim. 
She had to make that admission because, as we now know from 
memoranda prepared by Corps career staff that have been 
provided to the EPW Committee, case-specific jurisdictional 
determinations that provide a basis for the WOTUS rule do not 
exist.
    I would hope that all members of this subcommittee agree 
that when agencies make claims about a rulemaking record that 
are flatly contradicted by senior staff within an agency, that 
is a cause for concern. That is a cause for concern on how our 
Federal Government functions. That is a cause for concern that 
is worthy of the oversight of this committee. In fact, it 
strikes at the heart of the integrity of the rulemaking 
process, and I believe, our representative form of Government.
    I am not talking about legal interpretations or policy 
disputes. What we are focused on today are statements that the 
agencies presented as facts that, according to memoranda 
written by technical experts in the Corps of Engineers, are 
simply not true.
    I understand that this hearing puts Secretary Darcy in a 
somewhat awkward position, and I appreciate her willingness to 
testify today. We recognize that the EPA may have been in the 
driver's seat in developing the legally questionable WOTUS 
rule, but Assistant Secretary Darcy signed the rule, along with 
Administrator McCarthy. She, as well as EPA, is responsible for 
the veracity of the claims that the rule makes that is of 
concern to literally millions of Americans right now.
    I was surprised to learn of the degree of conflict between 
the two agencies. To me, this is further confirmation that the 
EPA is truly an agency that answers to no one. That needs to 
change.
    I appreciate Ms. Darcy's willingness to do the right thing 
by sharing those memoranda with the committee as part of our 
oversight responsibilities. I also appreciate her willingness 
to appear before the subcommittee, a committee that she knows 
well, to discuss the Corps' participation in the Waters of the 
U.S. rule.
    Finally, I want to remind her, respectfully, that we expect 
her to be candid in her answers. This subcommittee will not 
accept any attempts to evade answering questions based on 
claims of executive branch confidentiality interests, 
deliberative process privilege, or ongoing litigation. While 
these excuses may work in responding to FOIA requests or in 
defending litigation, they are not the basis of withholding 
information and truthful answers from the Congress of the 
United States.
    It is important that Congress hear directly from you, 
Secretary Darcy, about why the views of your technical experts 
at a very senior level, as we all know, were largely ignored, 
and why the record of the WOTUS rulemaking and the Corps memos 
contradict statements made in the final rule published to the 
American people.
    I am placing the Corps' memos in the record for this 
hearing. Without objection, so ordered.
    [The referenced documents follow:]
    
    
  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]  
    
    
     
    Senator Sullivan. Mr. Chairman, you are recognized, if you 
would like to make an opening statement.
    [The prepared statement of Senator Sullivan follows:]

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

    Good morning. The purpose of this hearing is to explore 
whether the experience and expertise of the Army Corps of 
Engineers provides support for the recently finalized rule that 
changes the regulatory definition of ``waters of the United 
States'' under the Clean Water Act.
    Congress has the constitutional authority, and indeed 
obligation, to conduct oversight of the actions of executive 
branch agencies.
    Oversight is particularly important when we have a pattern 
of behavior from certain agencies, like EPA, of consistently 
issuing rules that completely disregard the limits on their 
authority imposed by Congress. In fact, on June 26, just 3 days 
before the Supreme Court overturned EPA's Mercury and Air 
Toxics Rule, EPA Administrator McCarthy bragged to HBO's Bill 
Maher that the Supreme Court's decision would not matter 
because it took 3 years to get to the Supreme Court, and by 
then most facilities were already in compliance--``investments 
have been made.''
    This arrogance and disregard for the law are evident in the 
WOTUS rule as well.
    It's no secret that I think that the final WOTUS rule goes 
far beyond the authority granted by Congress. At a hearing back 
on March 4th, I asked Administrator McCarthy for her legal 
analysis that supports the rule. No response. On July 14th, 
Senator Inhofe and my Republican committee colleagues joined me 
in a letter asking again for that legal analysis. We never 
received it.
    Today, we are focusing on the factual record for the WOTUS 
rule. Whatever your views are on the limits of authority under 
the Clean Water Act, we all should be able to agree that an 
agency rulemaking must be supported by a factual record.
    In numerous places, the preamble to the final rule states 
that the rule's requirements are based on the science, agency 
expertise and experience, and case-specific jurisdictional 
determinations.
    To understand what documents the preamble is referring to, 
back in July Chairman Inhofe sent a letter to EPA asking for 
copies of the scientific studies that the agencies relied on 
and a letter to Secretary Darcy asking for the examples of 
case-specific determinations that the agencies relied on.
    EPA has not yet identified any specific scientific studies 
in response to Chairman Inhofe's letter. We are waiting for 
that response as well as a response to our longstanding request 
for a legal analysis before scheduling a hearing with EPA.
    Secretary Darcy has responded to Chairman Inhofe's letter 
by candidly admitting that the final WOTUS rule is not based on 
the case-specific jurisdictional determinations of the Corps--
even though the preamble to the final rule makes that claim. 
She had to make that admission because, as we now know from 
memoranda prepared by Corps career staff that have been 
provided to the EPW Committee, case-specific jurisdictional 
determinations that provide a basis for the WOTUS rule do not 
exist.
    I would hope that all members of this subcommittee agree 
that when agencies make claims about a rulemaking record that 
are flatly contradicted by senior career staff within an 
agency, that is cause for concern. In fact, that strikes at the 
heart of the integrity of the rulemaking process.
    I am not talking about legal interpretations or policy 
disputes. I am talking about statements the agencies presented 
as facts that, according to memoranda written by technical 
experts in the Corps of Engineers, are simply not true.
    I understand that this hearing puts Ms. Darcy in an awkward 
position. EPA may have been in the driver's seat in developing 
the legally questionable WOTUS rule, but Assistant Secretary 
Darcy signed this rule along with Administrator McCarthy. She, 
as well as EPA, is responsible for the veracity of the claims 
made in it.
    I was surprised to learn of the degree of conflict between 
two agencies. To me, this is further confirmation that the EPA 
is truly an agency that is out of control.
    I appreciate Ms. Darcy's willingness to do the right thing 
by sharing those memoranda with the committee as part of our 
oversight responsibilities. I also appreciate her willingness 
to appear before the subcommittee to discuss the Corps' 
participation in the Waters of the United States rule.
    Finally, I want to remind her that we expect her to be 
candid in her answers. This subcommittee will not accept any 
attempts to evade answering questions based on claims of 
executive branch confidentiality interests, deliberative 
process privilege, or ongoing litigation. While these excuses 
may work in responding to FOIA requests or defending 
litigation, these are not a basis for withholding information 
from Congress. It is important that Congress hear directly from 
you about why the views of your technical experts were largely 
ignored and why the record for the WOTUS rulemaking and the 
Corps memos contradict statements made in the preamble to the 
final rule.

    Senator Inhofe. Well, this is a subcommittee hearing, so it 
is probably not appropriate to make an opening statement. I 
think perhaps we can just move on.
    I would like to make a comment, however. This is the second 
time now this week that this has happened, that we don't have 
any of the minority showing up for this meeting, and I think 
that is regrettable. Hopefully, they will come, and I hope that 
the staff who is here from the minority will talk to the 
minority and see if we can get their presence here.
    I think it might be appropriate to just go ahead and hear 
from Ms. Darcy.
    [The prepared statement of Senator Inhofe follows:]

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

    The Waters of the United States rule is not just another 
example of regulatory overreach by the Obama administration. 
This rule is not only unlawful; it is completely unfounded.
    For most of its rules the Administration puts together a 
factual record and argues that the facts support more Federal 
control. This factual information can be reviewed and evaluated 
as part of the administrative record.
    This did not happen in the waters of the United States 
rulemaking. According to the one court that has looked at the 
merits of this rule, EPA and the Army simply made up new tests 
for expanding Federal control over land and water without any 
support in the record.
    On August 27, Judge Erickson of the District of North 
Dakota issued an injunction that prevented the WOTUS rule from 
going into effect in 13 States because the rulemaking record is 
``inexplicable, arbitrary, and devoid of a reasoned process.''
    In fact, Judge Erickson noted: ``On the record before the 
court, it appears that the standard is the right standard 
because the Agencies say it is.''
    Judge Erickson is right. We have memoranda from the Army 
Corps of Engineers that document the fact that EPA believes it 
has authority to assert Federal control wherever they want. In 
fact, EPA even told the Corps that it has blanket authority to 
take control over millions of acres of isolated wetlands and 
can justify that power grab by giving up jurisdiction in other 
areas--even though these kinds of policy choices are the 
purview of Congress, not the executive branch.
    Even if EPA had that kind of legislative authority--which 
they do not--the final rule does not make this tradeoff. In 
areas where the Corps expressed concern that the draft rule 
gave up jurisdiction, EPA made changes. Where the Corps 
expressed concern that the draft final rule went too far, EPA 
refused to address those concerns.
    So what we have is a final rule that the Corps of Engineers 
career experts say is not ``reflective of Corps experience or 
expertise.'' In fact, the Corps of Engineers asked that their 
name and logo be removed from the background documents that EPA 
developed to support the rule.
    These facts alone are should have caused the EPA and the 
Army to withdraw the rule and start over. But unfortunately, 
the situation is even worse.
    Not only is the final WOTUS rule unsupported by the 
rulemaking record, EPA and the Army have tried to hide that 
fact by affirmatively stating that the rule is based on the 
Corps' expertise and experience, including case-specific 
jurisdictional determinations. Based on the memoranda developed 
by the career staff at the Corps, we know that these statements 
are false.
    I find this deeply troubling. It is one thing to disagree 
on law and policy. But it is quite another to make false claims 
to the American people.
    We know EPA was in the driver's seat for this rulemaking, 
and I am very sorry that the Army is caught up in this mess. 
But after the career experts at the Corps of Engineers used 
words like ``not accurate,'' ``unfounded,'' ``not supported by 
science or law,'' ``inconsistent with the Supreme Court's 
decisions in Rapanos and SWANCC,'' and ``regulatory over-
reach'' to describe this rule I wish the Army had withdrawn its 
support.
    But they did not.
    Now that these facts have come to light it is time for EPA 
and the Army to admit that the WOTUS rule is indefensible.
    Rather than put the American people through years of 
confusion while the rule challenges wend their way through the 
courts, the Administration should do the right thing--withdraw 
this arbitrary and capricious rule and start over.

    Senator Sullivan. Secretary Darcy, why don't we begin 5 
minutes with your opening statement? And if Senator Whitehouse 
or others come, we will hear from them.

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

    Ms. Darcy. Good morning. Chairman Inhofe, Chairman 
Sullivan, members of the committee, I am Jo-Ellen Darcy. I am 
the Assistant Secretary of the Army for Civil Works. I want to 
thank you for this opportunity to come before the subcommittee 
this morning to discuss with you the Army's participation in 
developing the final rule entitled Clean Water Rule: Definition 
of Waters of the United States.
    As you know, the final Clean Water Rule was published in 
the Federal Register on June 29th of this year and became 
effective in all but 13 States on the 28th of August. In those 
13 States, the U.S. Army Corps of Engineers continues to 
implement Clean Water Act section 404 responsibilities under 
the prior regulation when making jurisdictional determinations 
and issuing permits.
    The process leading to the June 15th publication of the 
final rule started years ago when Members of Congress, key 
local and national stakeholders, and the American public spoke 
loudly and clearly, demanding that the Environmental Protection 
Agency and the Department of the Army deliver a new common 
sense set of rules that would add clarity and predictability to 
the implementation of the Clean Water Act following the U.S. 
Supreme Court's SWANCC decision in 2001 and the Rapanos 
decision in 2006, which called into question the agencies' 
decisions over which waters were considered to be waters of the 
United States.
    President Obama therefore called upon the administrator of 
the EPA and the Secretary of the Army to clear up the confusion 
by issuing a rule that would not only protect our Nation's 
waters as contemplated under the Clean Water Act, but also 
improve regulatory predictability, certainty, and transparency. 
That was our charge, and that is what the new rule 
accomplishes.
    Alongside EPA Administrator Gina McCarthy and her 
predecessor, the Army was an active partner in developing the 
rule. The rule, however, affects all programs established by 
the Clean Water Act, one aspect of which is the U.S. Army Corps 
of Engineers' permit program for the discharge of dredge or 
fill materials, commonly referred to as a 404 Program.
    As Assistant Secretary of the Army for Civil Works, I am 
responsible for setting the overall strategic direction for the 
civil works program. I am responsible for developing policy and 
guidance for administering the 404 Program. When undertaking 
these responsibilities, just as with my other assistant 
secretary responsibilities, I coordinate with senior leadership 
at the U.S. Army Corps of Engineers.
    The exercise of my discretionary authority is always 
informed by, among other valuable inputs, the technical 
expertise offered by the experienced regulators and program 
officials at the Corps and my staff. This is precisely the 
process I established and used in formulating the Army's 
position on many of the policy decisions that arose during the 
drafting and vetting of the proposed final rule. The inevitable 
internal differences of opinions encountered in the course of 
this rulemaking process were not unusual.
    The final rule was not only the product of EPA and Army 
collaboration, but was improved by a lively and productive 
interagency process when numerous agencies actively engaged in 
the formulation and development of the final rule. The 
decisions I made on behalf of the Army were reached after 
receiving the Corps' input. I have personally spoken with the 
Chief of Engineers, Lieutenant General Thomas Bostick, and he 
has confirmed that the Corps is unequivocally committed to 
implementing the new rule as effectively and efficiently as 
possible.
    The final rule reflects many changes as a result of 
listening to the public and carefully considering the interests 
of all Americans, including our Nation's farmers and ranchers. 
The public demand for a common sense rule was heard. The Clean 
Water Rule represents years of scientific study, as well as 
public outreach.
    The Clean Water Rule addresses the tens of millions of 
miles of the Nation's streams and millions of acres of wetlands 
whose protection against pollution had become confusing and 
complex following the SWANCC and the Rapanos decisions.
    The Clean Water Rule will protect those streams and 
wetlands that have been scientifically shown to have the 
greatest impact on the water quality of downstream traditional 
navigable waters and that form the foundation of our Nation's 
water resources. The rule ensures that waters protected under 
the Clean Water Act are more precisely defined, more 
predictable, easier for landowners and businesses to 
understand, and consistent with law and the latest science.
    Clean water is vital to our health, to our communities, and 
to our economy. We need clean water upstream to have healthy 
and vibrant communities downstream. Almost 117 million 
Americans, that's 1 in 3 people in this country, get their 
drinking water from streams impacted by the types of waters 
whose jurisdictional status has been clarified by the Clean 
Water Rule. Our cherished way of life and our economy are 
dependent on having access to an abundance of clean water.
    I want to thank you again for the opportunity today, and I 
will answer any questions you have that do not involve matters 
in litigation. Thank you.
    [The prepared statement of Ms. Darcy follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    
     
    Senator Sullivan. Thank you, Secretary Darcy.
    Look, just for the record, we do this every time in this 
committee. We all want clean water. My State has the cleanest 
water probably anyplace in the world, and, to be perfectly 
frank, it is not because of the EPA. So we all want water, we 
know that. But we also want agencies that are accountable to 
the people and to this body.
    So let me just ask the very obvious important question. You 
have seen the memos from Major General Peabody. And these are 
not small level Corps officials. Again, I have the utmost 
respect for the Corps. These are well thought-out memos. I am 
just going to read a couple excerpts from these memos. And 
these are right at the moment in which the rule is going to be 
finalized, so these are big, big disputes from a key agency. 
Not just any agency, a key agency, with regard to WOTUS.
    The April 27, 2015, memo to you said, talking about the 
preamble and the rule, states, ``Those statements,'' where you 
guys supposedly are supportive of the rule, ``are not accurate 
with respect to the draft final rule, as the process followed 
to develop it greatly limited the Corps' input, a practice that 
has continued thus far in the interagency review process.''
    The May 15th memo: ``The documents can only be 
characterized as having been developed by EPA and should not 
identify the Corps as an author, co-author, or substantive 
contributor.''
    The assistant chief counsel for the Corps: ``It will be 
difficult, if not impossible, to persuade Federal courts that 
the implicit effective determination that millions of truly 
isolated waters do not in fact have a significant nexus with 
navigable interstate waters. Consequently, the draft final rule 
will appear to be inconsistent with the Supreme Court's 
decision in Rapanos and SWANCC.'' This is why we have been 
asking Administrator McCarthy for the legal opinion, which she 
refuses to give us because of concerns like this.
    Finally, on 15 May, a few weeks before the final rule was 
promulgated, this is from, again, General Peabody: ``To the 
extent that the term `agencies' includes the Corps of 
Engineers, any such reference should be removed. Finally, the 
Corps of Engineers logo from the final rule should be removed 
from these documents.''
    You have said the final rule represents the Corps' and 
EPA's experience, the Corps' support. These documents 
dramatically tell a different story. Who are we supposed to 
believe? Where are the documents to support your claim that the 
Corps supported the rule? And did the EPA pressure you, as the 
head of the Corps, to sign the final rule when your senior 
leadership obviously wanted nothing to do with it?
    Ms. Darcy. I was under no pressure to sign any rule, 
Senator. This has been a collaborative, joint development of 
this rule starting several years ago.
    Senator Sullivan. Can you explain the response? These are 
dramatic documents. The senior-most officials in your agency 
were essentially saying the rule is untrue; we want nothing to 
do with it; take our name off it. Literally, take our name off 
it; we do not support it; we think it is against the law. How 
do you respond to that? And this is on the eve of the rule. How 
do you respond to that?
    Ms. Darcy. Senator, those documents and those memos were a 
snapshot in time.
    Senator Sullivan. No, no, no, they weren't a snapshot in 
time. They were at the end of a long process by which several 
agencies, and again, let's face it, it is the EPA, and the 
Corps is the key agency here, the key agency. This was not a 
snapshot in time; this was at the end of years and months of 
working on this rule. Your final civilian leadership and 
military leadership said we have had nothing to do with this, 
we don't agree with this; literally, take our name off it.
    How did you then ignore that advice? I mean, literally, the 
rule was issued about a week later. Not a snapshot in time. We 
are not going to buy that.
    Ms. Darcy. Senator, those comments were on the draft final 
rule. The final rule that was published reflects some 
additional changes to the proposed and the draft rule that some 
of which the comments in those memos have been addressed.
    Senator Sullivan. Some?
    Ms. Darcy. Some, yes, sir.
    Senator Sullivan. But not all.
    Ms. Darcy. Yes, sir.
    Senator Sullivan. And again, I don't see how you can claim 
that the Corps even supports the rule and the technical aspects 
of the rule, and the Administration, according to its brief in 
the Sixth Circuit, opposing the motion by 18 States that are 
now challenging the WOTUS rule, were talking about the 
technical support documents, ``the TSDs that explains that `the 
agencies are using their technical expertise to promulgate a 
rule that draws reasonable boundaries in order to protect the 
waters that most clearly have significant nexus, while 
minimizing the uncertainty of the scope of the WOTUS rule.''
    Then DOJ argues that the technical and scientific 
determinations should get the highest level of deference, which 
is normally the case in a Chevron litigation. But that might be 
true if the record to support those technical determinations 
came from the Corps. The only technical determinations in the 
record are statements in the technical support document. But 
according to the Corps, this is a quote, ``The Corps was not 
part of any analysis to reach the conclusions described.'' This 
is a quote from your agency. Let me say that again: ``The Corps 
was not part of any analysis to reach the conclusions 
described. Therefore, it is inaccurate to reflect that the 
agencies did this work or that is reflective of the Corps' 
experience or expertise.''
    This is incredibly, incredibly damming. The Justice 
Department can't rely on this agency deference when the agency 
itself is saying it had nothing to do with it. How do you 
respond to that?
    Ms. Darcy. Senator, the agency had some input.
    Senator Sullivan. Not according to this memo. Can I repeat 
that? ``The Corps was not part of any type of analysis to reach 
the conclusions described. Therefore, it is inaccurate,'' so 
please don't be inaccurate with us, ``to reflect that the 
agencies did this work or that it is reflective of the Corps' 
experience or expertise.''
    Your senior people, who are probably closer to this than 
you are, are saying you had nothing to do with it. So be 
careful when you are telling the Congress of the United States 
that you did, because right here in writing there is a memo 
saying you didn't.
    Ms. Darcy. Senator, you are referring to the technical 
analysis. Some of the information that was included in the 
analysis was provided by the Corps. The Corps did not do that 
analysis, that is correct.
    Senator Sullivan. I see my time is up here for questions. I 
am going to turn it over to Ranking Member Whitehouse.
    We waited quite some time to get this going, so I apologize 
for starting without you.
    Senator Whitehouse. No, you should feel free to start 
without me.
    Senator Sullivan. But I would appreciate if you want to 
make an opening statement and then ask questions. She has 
already given her opening statement.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Yes. Thank you very much.
    Ms. Darcy, thank you very much for being here once again. 
This committee is a forum in which every regulation that would 
help the environment receives opposition. Every pollutant 
regulation receives opposition. Every time, every member. It is 
an absolute sure thing that from stage right over every 
pollutant, every member, every time, every regulation; and it 
is very unfortunate that here we are again on another 
regulation.
    Rhode Island is a downstream State, so what goes in the 
rivers upstream makes a big difference to us, and the 
pollutants that go in the water upstream come down to our 
rivers, come down to our bays. The Blackstone River is one of 
Rhode Island's most important rivers; it has an industrial 
history, and a great deal of the bottom of the Blackstone River 
is industrial waste from Massachusetts from decades and decades 
ago.
    Not too long ago, Narragansett Bay, up in the north, was 
unfishable and unswimmable, and it is a really important 
resource to our State of Rhode Island to have Narragansett Bay 
be fishable and swimmable. And the Clean Water Act and the 
Waters of the United States rule have been essential to that 
progress, and while there can be argument over the scope and 
the details of the rule, that hasn't been what has been the 
issue. There has been just a full-on, party-wide, absolute 
attack on this rule, and I think it is very regrettable, 
because I think the Clean Water Rule has been very effective at 
helping particularly States like Rhode Island that tend to be 
downstream States, and it is a big deal for us.
    So if my colleagues want to address technical improvements 
that we think we should make, of course I am always open to 
that. But the conversation on this has been largely 
preposterous. Doc Hastings, the former Representative, said 
that no body of water in America, including mud puddles and 
canals, wouldn't be at risk of job-destroying Federal 
regulation. It is the historic power grab that poses a 
fundamental threat to our way of life.
    You hear this extreme rhetoric about a rule whose purpose 
is to keep our waters clean so that pollutants aren't dumped 
into a ditch and then the foreseeable next big rainstorm washes 
them down into our bay.
    Now, the Supreme Court cases are challenging; they give EPA 
and the Army Corps some very difficult responsibilities. I 
think that the rule is, by and large, pretty consistent with 
the Supreme Court decisions. If you wanted something different, 
well, the Supreme Court kind of has set the ground rules for 
this.
    So, like I said, we are open, I think, on this side of the 
aisle to considering technical adjustments to make this a more 
effective and fair rule, but that is not what I detect here in 
this room today; it is, once again, every regulation, every 
pollutant, every member, every time from the Republican side.
    I yield back my time.
    Senator Sullivan. Do you want to ask questions?
    Senator Whitehouse. Let me just ask Ms. Darcy if there is 
anything that she would like to say. She got cut off a couple 
times in the last questioning and didn't get a lot of time for 
her answers.
    You remember the chairman's questioning. Perhaps you would 
like to provide some positive answers to what he had to ask 
you.
    Ms. Darcy. Thank you, Senator Whitehouse.
    I would just like to clarify that when you asked about the 
Peabody memos, the content of those memos were things that were 
considered during the development of the rule. And as I said 
earlier, some of the considerations and changes that were made 
to the final rule between the draft final rule and the final 
rule are reflective in some of the concerns that the Army Corps 
of Engineers had.
    But it is my job as the Assistant Secretary of the Army for 
Civil Works to oversee the policy development of the 404 
Program, along with all of the other responsibilities, and I 
had to make some decisions in making the final rule decisions. 
Some of those agreed with the Corps of Engineers 
recommendations; some did not.
    Senator Whitehouse. But in your position as the Assistant 
Secretary, do you feel comfortable that your position was 
heard, considered, and reflected in the final rule?
    Ms. Darcy. Yes, I do.
    Senator Whitehouse. Thank you very much.
    Senator Sullivan. Senator Barrasso.
    Senator Barrasso. Thank you very much, Mr. Chairman.
    Senator Inhofe. Let me explain first. I would normally be 
next. Senator Barrasso has a commitment, so it is fine if you 
want to go ahead and go, and I will go back into my turn after 
Senator Cardin.
    Senator Barrasso. Well, thank you very much, Senator 
Inhofe. I appreciate the opportunity.
    Madam Secretary, I want to read the story that was on the 
front page of the New York Times September 18th of this year. 
The story is entitled Family Pond Boils at Center of Regulatory 
War In Wyoming. Regulatory war in Wyoming.
    The story highlights the plight of a young man, Andy 
Johnson. He is 32, he is a welder, he is a part-time caterer, 
he is a father of four girls, lives in Fort Bridger, Wyoming. 
The article talks about a pond that Mr. Johnson built on his 
property the EPA now says violates the Clean Water Act, and 
that he should have gotten a permit from the Army Corps of 
Engineers. Now, Wyoming has already said it is OK to do this, 
but this is the Army Corps of Engineers.
    The article says, ``Mr. Johnson and his wife spent $50,000, 
most of their savings, to create a pond of water to help his 10 
head of cattle and 4 horses.'' Now, this is the front page of 
the New York Times because of what is going on with the 
regulatory war in this country. ``Mr. Johnson and his family 
have been threatened with fines, $37,500 a day, thanks to the 
EPA and the Corps' heavy-handed management of water policy.''
    The article states the family has accrued fines of as much 
as $16 million. He sold off most of his livestock to pay his 
legal fees, environmental studies.
    Something is terribly wrong with the EPA and your agency 
where you destroy people's lives over a pond. A pond. You may 
claim your rule and regulatory approach is based on science, 
but it certainly is not based on common sense.
    And I don't want to see this happen to any more Wyoming 
families, families anywhere in the country. Why should any 
family trust the EPA or the Corps with this Waters of the 
United States rule that will ultimately empower unelected, 
unaccountable bureaucrats to steamroll families, take their 
college savings, clean out their retirement accounts. This is 
abysmal. And when the EPA, through its actions, gets talked 
into the front page of the New York Times with an article about 
Wyoming, you can tell how much overreach there is here.
    Any answer to this?
    Ms. Darcy. Senator, I believe that the Clean Water Rule 
that we have promulgated will help to improve the clarity for 
those people who have questions about the reach of the Clean 
Water Rule. I think the science has demonstrated that there is 
connectivity between different bodies of water, and that is an 
important consideration when we decide whether an activity 
should be permitted or not in a jurisdictional water.
    Senator Barrasso. And a $16 million fine against this 
Wyoming family, 32-year-old family of four daughters, wants to 
get them to college. You are going to provide better clarity to 
them, is that what you just said?
    Ms. Darcy. That is what we intend to this in this rule.
    Senator Barrasso. Well, it is pretty clear, when they have 
a $16 million fine, that the EPA certainly thinks that they 
have the authority to do this.
    You know, there is so much in these Army Corps memos that 
Senator Sullivan started, described how your agency was 
essentially out of the loop in a lot of the decisionmaking that 
went into developing this rule.
    I have been very critical of how this rule has been 
drafted, very critical of how agencies like the EPA have 
applied a heavy hand to farmers, to ranchers, to small 
businesses in their management of water. I can only imagine how 
many families like the Johnsons have already been bullied by 
bureaucrats, having their livelihoods threatened simply putting 
a shovel into the ground.
    Statements in the Corps memo about the EPA's conclusions 
like the Corps was not part of any type of analysis to reach 
the conclusions described means the EPA was really driving the 
train, not the Corps. And without the Corps' involvement, it 
appears to me the rule that was developed is completely 
arbitrary.
    I mean, the Corps' own memo says, ``In the Corps' judgment, 
the documents contain numerous inappropriate assumptions, with 
no connection to the data provided, misapplied data, analytical 
deficiencies, logical inconsistencies. As a result, the Corps 
review could not find a justifiable basis in the analysis for 
many of the documents' conclusions.''
    So I want to give you the opportunity to state whether you 
feel your agency was pushed around, marginalized by the EPA, 
because that is what your own people are saying about these 
memos.
    Ms. Darcy. I do not believe that we were pushed around, 
bullied, or marginalized by any other Federal agency during 
this process.
    Senator Barrasso. So the people that work for you are 
wrong.
    Ms. Darcy. No, the people who work for me who are in the 
Corps of Engineers had some differing opinions on some of the 
final decisions that needed to be made in order to finalize 
this rule.
    Senator Barrasso. So a District Court judge in North Dakota 
concluded that the process used to develop the rule is 
inexplicably arbitrary and devoid of a reasoned process. The 
judge issued a preliminary injunction preventing the rule from 
going into effect in 13 States, including Wyoming. And if you 
truly want to provide certainty and clarity, you will withdraw 
this rule and start over with a process that reaches out to 
States and local governments, and is not arbitrary and devoid 
of a reasoned process.
    That is why I would ask that you support bipartisan 
legislation that we have introduced. Bipartisan; we have 
Democratic co-sponsors, it is not just those on the right side 
of the panel, bipartisan co-sponsors. It is called the Federal 
Water Quality Protection Act. It gives your agency a chance to 
go back, write a rule, reaches out to States, protects 
vulnerable farmers, ranchers, families, and communities.
    Ms. Darcy. We are currently implementing the rule as 
proposed in those 13 States, Senator, and we stand behind that 
rule.
    Senator Barrasso. Mr. Chairman, I am going to continue to 
work with the majority leader and getting a vote on this 
bipartisan legislation so we can get it to the floor and 
rewrite the rule. Thank you, Mr. Chairman.
    Senator Sullivan. Thank you.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    Ms. Darcy, thank you very much for your service, and thank 
you for being here. I have listened to the hearing, and I am 
somewhat perplexed with what the purpose of the hearing is. 
Those who are listening to this, I am not sure they are gaining 
much other than a debate among the members about the 
implementation of the Clean Water Act.
    I agree with Senator Whitehouse. It seems to me that it 
would be one thing if we were talking about the merits of a 
rule. We can argue the specifics, but it seems to me what we 
are arguing about here makes little sense.
    I would hope we are not arguing about the merits of the 
Clean Water Act. The Clean Water Act has been responsible for 
improving the public health of the people of this country. In 
my own State of Maryland, the Chesapeake Bay, which I have 
talked about frequently to the members of this committee, is 
critically important to our life. It is our economic life, it 
is our social life, it is iconic to Maryland's history, and the 
Clean Water Act is a critical part. And knowing what waters are 
going to be protected that lead into the Chesapeake Bay is 
critically important.
    I also hope it is not being disputed that the reason why 
the Obama administration initiated a rule is because of two 
Supreme Court decisions that confused the definitions of what 
are regulatory waters of the U.S. and required a response. And 
we have been waiting for a response, and the Obama 
administration has taken the initiative to bring forward a 
rule, and that is what it should be.
    I listened to Senator Barrasso's concerns about a 
landowner. Those concerns exist under the circumstances prior 
to this rule being formulated. That is nothing new. And it has 
been difficult for landowners because they don't know whether 
they are going to be regulated or not until we had some clarity 
from the rules that have been proposed. So I think clarity is 
very, very important in this regard.
    So we are not talking about the merits; now we are talking 
about the process that was used between the Army Corps and the 
Environmental Protection Agency. And my understanding of the 
disagreement, to the extent there is a disagreement, during the 
consultation process, is the Army Corps wanted a broader 
definition of waters that would be regulated.
    I don't know the internal discussions, but it seems to me 
EPA ultimately issued a regulation that was narrower, and that 
seemed to be the public comment that took place during the 
process of erring on the side of caution, rather than 
broadness. And my guess is if the rule would have been broader, 
my colleagues who are being critical of the process would have 
been more critical of the result.
    So I am somewhat confused as to the focus of this hearing.
    Ms. Darcy, as I understand it, I am reading from your 
testimony, and I want to make sure I understand this correctly 
from your position. The final rule was not only the product of 
EPA and Army collaboration, but was improved by a lively and 
productive interagency process. Is that your testimony?
    Ms. Darcy. Yes, Senator.
    Senator Cardin. And that was stand shoulder-to-shoulder 
with our colleagues at EPA in support of the merits of the 
final rule and the process used to develop it.
    Ms. Darcy. Yes, Senator.
    Senator Cardin. Thank you. Thank you, Mr. Chairman.
    Senator Sullivan. Senator Wicker.
    Senator Wicker. Thank you, Mr. Chairman.
    Ms. Darcy, this hearing is about whether this rule is 
legal. There is, of course, an appeals court in one section of 
the country who has expressed serious doubts as to whether it 
is legal. I share those doubts. But in order for it to be 
legal, it has to be signed off on not only by you and by the 
Administrator of the EPA, but it has to be based on certain 
criteria developed by the two agencies.
    Now, in the preamble, which I take it you subscribe to, the 
preamble?
    Ms. Darcy. Yes.
    Senator Wicker. Thank you. You say the emersion of science 
along with the practical expertise developed through case-
specific determinations across the country in diverse settings. 
Case-specific determinations across the country in diverse 
settings. What does that mean?
    Ms. Darcy. It means that in making determinations across 
the country, that individual cases were considered when the 
discussions with the Corps staff and EPA were being developed 
to put this rule together.
    Senator Wicker. Individual cases.
    Ms. Darcy. Yes, sir. In order to make a determination, you 
have to look at the on-the-ground conditions in many instances, 
so those were some of the cases that were discussed.
    Senator Wicker. All right. But in your letter, dated August 
28, back to Chairman Inhofe, you state your letters seek field 
observations relied upon by the Army for certain statements in 
the technical support document and the rule. The letters 
suppose that there are specific field observations in the 
administrative record that correspond to each statement. In 
fact, rather than relying on individual field observations, the 
rule was the product of yields of collaborative decisionmaking, 
and so on and so forth.
    It seems to me that your letter, which I just quoted, 
contradicts the statement in the preamble that there were case-
specific determinations across the country.
    Ms. Darcy. Senator, the case-specific determinations that 
were discussed and included in the conversation in developing 
the final rule were part of the examples that our technical 
folks discussed when developing the rule.
    Senator Wicker. But they were not field observations or 
specific field observations in the administrative record, 
because that's what your letter just said.
    Ms. Darcy. The field observations that were discussed as 
part of the development of the rule aren't like a specific 
condition in one specific area.
    Senator Wicker. I noticed you turned to counsel on that 
question. Can you supply to the committee, on the record, what 
the case-specific determinations across the country and in 
diverse settings actually is in this case?
    Ms. Darcy. I will consult with counsel, but if at all 
possible we will provide that for the record.
    Senator Wicker. OK, why wouldn't it be possible?
    Ms. Darcy. This rule is undergoing litigation, so within 
the parameters of the litigation is what I would have to be 
mindful of.
    Senator Wicker. OK, we will deal with you on that.
    Also, the preamble is also contradicted by the assertions 
of General Peabody in his letter dated April 24, which the 
Chairman has already pointed out. General Peabody seems to 
underscore and support the statement in your letter dated 
August 28 when he says the preamble of the proposed rule and 
the draft final rule state that the rulemaking has been a joint 
endeavor by the EPA and the Corps, and that both agencies have 
jointly made significant findings, reached important 
conclusions, and stand behind the final rule. Those statements 
are not accurate with respect to the draft final rule, as the 
process followed to develop it greatly limited the Corps' 
input, a practice that has continued thus far in the 
interagency review process.
    It just seems to me, Ms. Darcy, that this statement 
contradicts the preamble and that we have a situation here 
where the political appointee to the Corps of Engineers does 
indeed support the rule, but that the great body of fact-
finding behind it is not there. What would you say to that 
assertion?
    Ms. Darcy. I would say that what is reflected in the 
Peabody memos are considerations that the Corps had which had 
been raised to me, those considerations and concerns. Many were 
decisions that had to be made as to what was going to be 
included in the final rule, and those decisions were mine to 
make.
    Senator Wicker. But not based on field observations?
    Ms. Darcy. Much of the technical expertise and experience 
of the Army Corps of Engineers was considered when making many 
of these decisions.
    Senator Wicker. Thank you. Thank you, Mr. Chairman.
    Senator Sullivan. Senator Rounds.
    Senator Rounds. Thank you, Mr. Chairman.
    Secretary Darcy, since 2001, the Supreme Court decision in 
SWANCC, no isolated wetland has been found to be 
jurisdictional. However, under the new WOTUS rule there are 
five categories of isolated wetlands that you now expect to 
regulate, because the final rule makes a legal determination 
that these categories are similarly situated. This means that 
you will look at aggregate impacts when deciding whether there 
is significant nexus to navigable waters.
    The Prairie Pothole Region, which includes South Dakota, 
encompasses 5.3 million acres of land in the Midwestern United 
States. Can you tell how many acres of land in the United 
States are impacted by all five categories of this new 
provision?
    Ms. Darcy. I don't have that number with me, Senator, but I 
would be happy to try to find it for you.
    Senator Rounds. I would appreciate it if we could get that. 
Just an assumption: pretty significant amount of land in the 
United States. Fair statement?
    Ms. Darcy. Yes. But, again, the exact number we will 
provide to you.
    Senator Rounds. OK. What is the basis for determining that 
all wetlands in these categories within a watershed are 
similarly situated?
    Ms. Darcy. Senator, during the scientific consideration 
that we did through the connectivity report that was reviewed 
by the science advisory board, the potential for connectivity 
of those kinds of water bodies and the impact that they might 
have a connection to a downstream navigable water is present, 
which means that it is a possibility. That's why you can do a 
significant nexus test. That if it is determined that there is 
a significant nexus between that kind of water and its impact 
to a downstream navigable water, if that determination is made, 
then that would be a jurisdictional water.
    Senator Rounds. You recognize that this rule would make 
some significant changes in the definitions of waters of the 
United States?
    Ms. Darcy. It is possible that if there is a significant 
nexus between those five similarly situated types of waters, 
that there could be some impact to downstream waters, and that 
is the ultimate goals, is to try to prevent negative impacts to 
the downstream waters.
    Senator Rounds. But you also understand, and in your 
testimony you indicated that 404 permits are a critical part of 
the responsibility of the Corps in terms of determining the 
issuance of those and that they impact not only quality of 
water, but it also impacts because they want certainty, 
economic activity as well. Fair statement?
    Ms. Darcy. Yes.
    Senator Rounds. So you understand how critical. And the 
reason why it is so important for a lot of people out there, 
the business community, a lot of people depending upon the 
availability of access to the shores, the waterways and so 
forth, this is a pretty important economic decision, isn't it?
    Ms. Darcy. Yes, and the health of the water is also a very 
crucial economic decision.
    Senator Rounds. But this was not made in a vacuum. The 
Corps of Engineers clearly understood how important this 
decision in determining what is and what is not included in the 
waters of the United States, this was not something that you 
took on lightly. You understood the significance of it.
    Ms. Darcy. Yes, sir.
    Senator Rounds. I am just curious. You indicated 
litigation. Do you know how many different lawsuits you are 
involved with right now on this particular rule?
    Ms. Darcy. I know that 31 States have sued. I think there 
are an additional I think maybe 60 to 70 cases.
    Senator Rounds. I think right now, if I could, I think 
right now, according to our information, I think there are like 
22 different lawsuits involving 31 separate States of the 
United States right now on this particular rule. Clearly, the 
impact of this rule for these States, I think you were right in 
your determination that this was a very important rule that you 
have made some interpretations on. Fair to say?
    Ms. Darcy. It is a very important rule. I think it is a 
generational rule for the Clean Water Act.
    Senator Rounds. If we look at not just the combination of 
literally what is in this particular case the political outlook 
for all of these States, when you have this many bodies all 
sitting side-by-side challenging what has been done in this 
particular case, and then you look at the impact economically 
in terms of the significant changes it could make with regard 
to the number of 404 permits, the number of individuals, 
whether they are farmers, ranchers, this is one of the biggest, 
perhaps, political and economic deals you have been involved 
with in perhaps a generation?
    Ms. Darcy. I think it is one of the most important rules in 
order to protect the water quality of this country, yes.
    Senator Rounds. Not only for our water quality, but in 
terms of the political impacts, the political challenges 
involved, and the economic impact as well. Fair to say?
    Ms. Darcy. There are challenges, yes, Senator.
    Senator Rounds. But would you agree with my statement?
    Ms. Darcy. That it is the largest?
    Senator Rounds. One of the largest. Very, very important in 
terms of economic impact and very, very important in terms of 
the political impact.
    Ms. Darcy. Yes, it is.
    Senator Rounds. Thank you. Appreciate it.
    Thank you, Mr. Chairman.
    Senator Sullivan. Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    And thank you, Secretary, for being here today.
    In Nebraska, we are blessed with wonderful natural 
resources, and we want to make sure that we manage our water 
resources in an appropriate manner. I agree with Senator 
Whitehouse; the Clean Water Act is an important piece of 
legislation. It has been very beneficial across the United 
States. We differ on this rule, however.
    In Nebraska, our natural resource districts, we have 
different basins in Nebraska that are resource districts. They 
work to help manage groundwater. The State manages surface 
water. And together I think we manage our resources very well. 
We also work with the Corps very well in Nebraska.
    For example, we had a levee system in the eastern part of 
the State where we worked with the Corps, and it was completed 
last year. And that protects the drinking water in basically 
our urban areas on the eastern part of the State, the drinking 
water for over half of our population. It is important that we 
work together in being able to manage those resources and 
protect our citizens to make sure they do have clean drinking 
water.
    We had a hearing of this committee in Nebraska in March on 
waters of the U.S., and a great panel of Nebraskans came to 
speak on the issue and presented good information. In Nebraska 
we have a broad consensus of varied groups that are opposed to 
these rules. It is not just the usual suspects of farmers and 
ranchers. We hear that all the time: farmers and ranchers are 
going to be hit by this rule. You bet they are. My neighbors 
are going to be hit by it.
    But also our natural resource districts are opposed, our 
cities are opposed, our counties are opposed, our homeowners 
are opposed, our home builders are opposed, our associated 
general contractors are opposed. So it is a wide group of 
stakeholders.
    Twenty-five percent of the cost of a new home right now is 
due to rules and regulations, and our home builders know that 
we are putting an American dream out of reach by adding more 
rules and regulations, because most of us aren't going to be 
able to afford to own our own home in the future if the 
Government continues on in this way.
    In your August 28th letter to Chairman Inhofe, you said 
that the EPA made changes to the final WOTUS rule to address 
the Corps' concerns. But the only substantive changes made were 
to expand the jurisdiction. No changes were made to address the 
regulatory overreach identified by the Corps.
    Did you raise with the EPA the Corps' concern that ``many 
thousands of miles of dry washes and arroyos in the desert 
southwest, even those ephemeral dry washes, arroyos, etcetera, 
carry water infrequently and sometime in small quantities''? 
Were any changes made to address that?
    Ms. Darcy. In the final rule?
    Senator Fischer. Yes.
    Ms. Darcy. I don't believe so.
    Senator Fischer. Did you raise with the EPA the Corps' 
concern that the new definition of adjacent used arbitrary 
distances to establish jurisdiction that according to the Corps 
``are not supported by science or law''? Were any changes made 
to address that concern?
    Ms. Darcy. We did raise that concern with EPA, as we did 
with the other concerns in the Peabody memo and, yes, there was 
an addition made to the final rule that would take out to the 
100-year floodplain the waters that could be considered when 
doing a significant nexus test.
    Senator Fischer. Did you raise with the EPA the Corps' 
concern under the rule prairie potholes, vernal pools, and 
certain other isolated wetlands must be evaluated in the 
aggregate even though ``the Corps has never seen any data or 
analysis to explain, support, or justify this determination''? 
Were any changes made to address that concern?
    Ms. Darcy. That concern was raised with EPA, and as a 
result, as you can see in the final rule, those five types of 
waters, including the Delmarva, were considered to be similarly 
situated for purposes of making a significant nexus 
determination, so that addition to the final rule in that memo 
was not supported, but was included in the final rule, and I am 
aware of what the Corps' concerns were.
    Senator Fischer. And I know there is a lot of uncertainty 
out there. You said your hope was that this rule would clarify 
it. So I would like to go over just a few questions that were 
raised by the Corps in an April 24th memo that General Peabody 
sent to you. These are questions that people all across 
Nebraska certainly have.
    First, how is water defined? According to the Corps, you 
need a definition to avoid regulating puddles. Is that true?
    Ms. Darcy. I am sorry, I didn't hear the last. To regulate 
what?
    Senator Fischer. Puddles.
    Ms. Darcy. Puddles. There is an exemption of puddles in the 
final rule, that they will not be regulated.
    Senator Fischer. How is water defined in the rule?
    Ms. Darcy. The definition of navigable waters of the United 
States has not changed in the final rule.
    Senator Fischer. How can you tell if a category of water is 
similarly situated?
    Ms. Darcy. The determination was made for the similarly 
situated five kinds of water based on the science that was 
provided through our connectivity report.
    Senator Fischer. Thank you.
    And if I may, Mr. Chairman, how do you define a roadside 
ditch?
    Ms. Darcy. I believe it is defined in the exclusions, but 
actually I would have to check on the definition of roadside 
ditch. Other ditches are defined and exempt in the final rule.
    Senator Fischer. I am over my time, but I would like to 
submit some questions for the record, please. Thank you.
    Thank you, Mr. Chair.
    Senator Sullivan. Senator Markey.
    Senator Markey. Thank you, Mr. Chairman, very much.
    And thank you, Assistant Secretary Darcy, for being here 
today as the committee adds to the already very extensive 
consultation and review that the Army Corps and the 
Environmental Protection Agency have undertaken in crafting the 
recently finalized Clean Water Rule.
    But before I get to the Clean Water Act, I wanted to thank 
you and the Army Corps for your work on the Boston Harbor 
dredging. That project will be critical as the Port of Boston 
continues its 385-year history in the 21st century. Thank you. 
I also appreciate the Corps' work on the Muddy River project. I 
think you know there are some ongoing discussions about how we 
can ensure that the project will provide flooding protection 
over the long-term, especially factoring in climate change, and 
I would like to have an opportunity to speak with you more 
about those concerns at a later time.
    The drama of rivers in the United States catching on fire 
compelled the enactment of the Clean Water Act, which gave the 
Government broad authority to limit water pollution. As the 
1972 Conference Report and two Supreme Court rulings have made 
clear, the EPA and the Army Corps have the authority to address 
pollution beyond traditional navigable waters. The Clean Water 
Act is one of America's great successes. It has supported 
improvement in our economy and ecosystems, and it continues to 
work. Our rivers don't catch fire anymore, and people can even 
swim in the Charles River now, which was impossible for most of 
my life.
    But given litigation in the last decade, the EPA and the 
Army Corps needed to update their implementation of the Clean 
Water Act, which leads to the new rule that we are discussing 
today.
    Now, some say that the new Clean Water Rule does not go far 
enough, while others, like the National Farmers Union, prefer 
this rule over its previous iterations. So I want to ask you, 
Secretary Darcy, a few questions about the development of this 
rule.
    First, the memos being discussed today reveal conflicting 
opinions within the Corps on the policy decisions made in the 
rule. Isn't it true that internal discussions are an important 
part of the rulemaking process?
    Ms. Darcy. Yes, Senator.
    Senator Markey. I assume many people in the Army Corps 
worked on this rule. Shouldn't we expect that some would feel 
that the rule should be made more stringent?
    Ms. Darcy. Yes, Senator.
    Senator Markey. Do the memos reflect the official opinion 
of the Army?
    Ms. Darcy. No.
    Senator Markey. Were the issues raised by the memos covered 
in the final rule?
    Ms. Darcy. Some of the issues were addressed and changed as 
a result of that, yes.
    Senator Markey. Critics of the rule have voiced concern 
over the agency's provision of a legal rationale for the rule. 
But isn't it true that the rule, while proposed, included an 
entire appendix entitled Legal Analysis, which spoke to those 
concerns?
    Ms. Darcy. That's correct.
    Senator Markey. And, similarly, isn't it true that the 
first section of the final rule's technical support document 
entitled Statute, Regulations, and Case Law, that the legal 
issues also spoke to those concerns over the span of 86 pages?
    Ms. Darcy. Yes.
    Senator Markey. So I think it is pretty clear that there 
was a very thorough consultation process; that there was a very 
thoughtful set of discussions that took place; that there was 
in fact a supporting set of documents to back up the basis for 
the decisions which were made, as the concerns had been raised.
    So I think that the Army Corps did a good job. It is a 
tough job, but it is one where, it seems to me, that you 
balanced the interests that were at stake and tried to come 
down with good judgments. And I think you did it, and I think 
you also did it legally, and you did it with the backup 
analysis, which is required under the law. So I just wanted to 
compliment you on your very good work.
    And I thank you, Mr. Chairman, for having this hearing.
    Ms. Darcy. Thank you, Senator.
    Senator Sullivan. Thank you.
    Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    Let me put something in perspective here. I have enjoyed 
listening to both sides, and this has been a discussion that 
has been going on for a long time. This Administration has a 
policy of, if you can't get something passed by people who are 
answerable to the people of America, then do it through 
regulation. In other words, what you can't get done through 
legislation, do through regulations.
    Well, this has been through that. I think we can all say 
historically the States have had jurisdiction over the water. 
The exception has always been navigable. I understand that and 
I agree that that exception should be there. And I think 
everyone up here does agree with that.
    But I would say this. It was about 6 years ago that there 
was an attempt to do this legislatively. It was Senator 
Feingold and Congressman Oberstar, from Wisconsin and 
Minnesota. Not only was the legislation defeated, resoundingly, 
but both Senator Feingold and Congressman Oberstar were 
defeated at the next election.
    I am saying this is a huge issue. That was a prominent 
issue in that election. And to say that consultation took place 
with farmers and ranchers, they weren't farmers and ranchers 
from Oklahoma. And to give you an idea of the significance of 
this issue in terms of property rights, in terms of just what 
is right and wrong, the chairman or the president, I guess his 
title is, of the Farm Bureau in Oklahoma is Tom Buchanan. Tom 
Buchanan was making a speech, and in his speech he said, of all 
the problems of farmers and ranchers in Oklahoma, the Ag 
Committee doesn't really handle these, it is the overregulation 
by the EPA. That is what his statement is, the overregulation 
by the EPA.
    Now, he was talking about endangered species, talking about 
a lot of other things, certainly cap-and-trade, but he said the 
No. 1 concern of all the problems we are having with the 
overregulation that is killing us, and this is the Farm Bureau 
talking, is the WOTUS issue. This is the one that they are most 
concerned about. And when you read it, you can talk about all 
these things, adjustments you are making, but in reality it 
didn't happen.
    On May the 15th, just 12 days before you signed the final 
WOTUS rule, General Peabody, and a lot of us have been talking 
about General Peabody. He is a Major General, and his title is 
the Deputy Commanding General for Civil and Emergency 
Operations. He is way up there at the top. You would agree with 
that, wouldn't you?
    Ms. Darcy. Yes, sir.
    Senator Inhofe. General Peabody sent you a memo saying that 
the economic analysis and technical support document for the 
final rule made inappropriate assumptions, misapplied data, and 
included analytical deficiencies and logical inconsistencies. 
Was he right?
    Ms. Darcy. I don't agree with him.
    Senator Inhofe. All right. ``As a result, the Corps' review 
could not find a justifiable basis in the analysis for many of 
the documents' conclusions.''
    General Peabody went on to tell you the Corps' name and 
logo should be removed from these documents. This is a quote, 
it is not me talking, this is General Peabody: ``To either 
imply or portray that the United States Army Corps of Engineers 
is a co-sponsor, co-author, or contributor to these documents 
is simply untrue.''
    Now, if the Corps refused to claim authorship of these 
documents, why did you put the Army's name on them?
    Ms. Darcy. Because the Army does support the rule and the 
documents in the development of the rule.
    Senator Inhofe. Isn't it the job, though, of the Corps of 
Engineers to make the statements on which their support is 
going to be based?
    Ms. Darcy. It is the job of the Army Corps of Engineers to 
inform me, as well as others, as to their experience and 
expertise, and it is up to me to make a final decision on 
behalf of the Army.
    Senator Inhofe. And you disagreed with the statements that 
he made.
    Ms. Darcy. I disagree that the analysis was flawed.
    Senator Inhofe. So you disagreed with him?
    Ms. Darcy. I had economists in my office review the 
economic analysis and the technical analysis.
    Senator Inhofe. I really regret this, but these things have 
to be talked about.
    On August 27th, Judge Erickson, of the District of North 
Dakota, issued an injunction that prevented the WOTUS rule from 
going into effect in 13 States, as we have been talking about, 
because the rulemaking record is inexplicable, arbitrary, and 
devoid of a reasoned process. Is that Federal judge wrong?
    Ms. Darcy. I disagree with that finding. I think the 
process was legitimate. I think it is defensible in both law 
and in process.
    Senator Inhofe. In fact, she said, Judge Erickson noted, 
``On the record before the court, it appears that the standard 
is the right standard because the agencies say it is.''
    Now, it doesn't do any good to ask you if you agree with 
that or disagree with that, but is everybody wrong here except 
you? We have talked about General Peabody, we have talked about 
Federal judges. We have talked about the overwhelming number of 
people in the United States, 32 of the States coming out 
overtly opposing it. Is everybody wrong?
    Ms. Darcy. I don't believe everyone is wrong, Senator. I 
believe that the rule is going to show that we are going to 
provide protection for the waters, which is what our 
responsibility is under the Clean Water Act.
    And I think that this rule brings clarity to a rule that 
had confusion. We were asked by the Supreme Court, Justice 
Roberts encouraged both agencies to develop a rule. We were 
encouraged by Congress, by stakeholders to develop a rule to 
clarify the impact of those court decisions, as well as what 
the impact should be on covered waters.
    Senator Inhofe. A lot of the statements that were made by 
General Peabody, he was making recommendations of changes. He 
would say, no, I don't want my name attached to it. But in 
doing so, he was recommending making changes in the final 
document. And I know there has been some discussion about this, 
maybe you can find one or two that was made, but they really 
weren't. The things that he found issue with were not changed 
in the final document.
    We will be talking about this, as we have in the past, for 
a long period of time. Hopefully, we will be able to stop this 
again. This is considered to be, by the people in my State of 
Oklahoma, the most significant raid that they have ever had, 
and they are very much concerned about it. So I regret that you 
are in the position that you are in, but I am glad I am in the 
position I am in.
    Thank you, Mr. Chairman.
    Senator Sullivan. Thank you, Senator Inhofe.
    I think Ranking Member Whitehouse and I are going to 
conclude with a few additional questions.
    Senator Inhofe. Could I interrupt just for a moment?
    Senator Sullivan. Sure.
    Senator Inhofe. I am sorry. I was reminded by my staff. I 
would like to ask for a copy of the analysis by your economists 
and the technical experts you used, who advised you. I would 
like to have a copy of that advice. Is that all right?
    Ms. Darcy. Sure.
    Senator Sullivan. So, Secretary Darcy, thank you for 
answering the questions and being the sole witness at this 
hearing. It is an important hearing, and I am going to address 
a little bit what Senator Cardin had mentioned, hey, what is 
this about. It is about oversight. But let me ask you a couple 
additional questions here.
    There is kind of a theme and Senator Markey was focused on 
it, that, hey, look, this is internal policy debates. You are 
kind of making the same kind of narrative here. And we 
understand when that is the case, right? Agencies have internal 
policy debates; there is a pushing, to-ing, fro-ing on what the 
right decision is. And when that happens Senator Markey used 
the term balance of views, policy discussion. You are kind of 
insinuating, hey, there are reasonable alternatives here that 
we had the option to deal with. And I think that sounds good.
    I think what has really concerned so many of us is that it 
is actually not true. It is not true. This is not one of those 
examples of, hey, on the one hand, on the other hand. Let me 
give you just a few. There are a lot. I will just mention a 
few.
    In the May 15th memo from the Chief of the Corps Regulatory 
Program, he stated to you, so this is like 2 weeks before the 
final rule is going to be issued, ``It is patently 
inaccurate.'' This isn't gray. It is patently inaccurate. The 
final rule states that the action the rule does not have any 
tribal implications. That is in there.
    He states that is patently inaccurate because both the 
expansion and loss of jurisdiction of the waters of the U.S. 
may have significant affects on tribes and their resources. And 
certainly in my State. Like Senator Fisher, I held a hearing on 
the WOTUS rule in Alaska, and one of the most powerful 
witnesses was the mayor of the North Slope Borough saying that 
this would have an enormous impact on their borough, tribal 
entities on the North Slope of Alaska. Enormous.
    So this isn't kind of a balanced, hey, you know, maybe we 
got it right, maybe we got it wrong. I am going to thread the 
needle here. Patently inaccurate.
    Let me give you another example. In the April 24, 2015 
memo, ``Arbitrary limits within the definition of 
neighboring,'' when he is talking about the extent of the rule, 
``are not rooted in science and beyond the reasonable reach of 
defining adjacency by the rule.''
    So these are your experts, whom I assume have a lot more 
expertise on the science than you do. And they are not low 
level guys; they are senior guys. And they are saying that the 
limits you are defining in the rule are not rooted in science. 
There is a lot of talk on this committee about, hey, we have to 
base things on science. Your experts, and again, this isn't 
black and white; they are saying this is not rooted in science.
    Let me give you a third example. This relates to the issue 
of adjacent waters, where the final rule automatically 
regulates all waters within 100 feet of a tributary or other 
water and all waters within 1,500 feet of a tributary or other 
waters if located in the 100-year floodplain.
    The final rule and the preamble says, ``The adjacency 
provision,'' which your expert said was not rooted in science, 
``is based on the best available science.'' That is what the 
preamble of the rule says. Your top scientist and expert, 
probably a lot more experienced than you, says that is not 
true. The adjacency provision is based on the best available 
science, the intent of the Clean Water Act, and case law, and 
is consistent with the experience of the agencies in making 
case-specific nexus determinations. That is what the rule says.
    So again, General Peabody comes back to you and says, 
actually, that is not true. Based on how many feet there are 
between bodies of water, it cannot be based on the Corps' 
expertise and experience because the Corps does not record 
distances in their jurisdictional determinations.
    So again you have a senior expert who is saying it is not 
true. So this narrative of, hey, we are threading the needle, 
one side is saying one thing, reasonable people can disagree, 
your senior people. And this wasn't a snapshot in time, this 
was at the end of a year's long process with the top experts in 
your agency. They are coming out saying this is not a gray 
area.
    Make the call, Madam Secretary. You are the political 
leader. They are telling you it is black and white. They are 
telling you it is black; you are saying it is white.
    That is why we are so concerned here. That is why we are so 
concerned here. How do you respond to the patently inaccurate? 
May 15th, your top expert says that the rule says this is not 
going to have any tribal implications. He comes back and says 
that is patently wrong. How do you explain that? How do you 
then go, no, you are wrong; I am right? How do you do that?
    I am just curious, because it seems to me this is not a 
judgment call, this is not a policy call; this is black and 
white. Your senior people are saying black; you are saying 
white. I think because you are being told by the EPA to do 
that, but you have said that you weren't. So how do you explain 
that?
    How do you explain these other ones? How do you say that it 
is based on science when your top official who knows the 
science probably better than you do says, no, don't say it is 
based on science because it is not? How do you explain those 
away?
    Ms. Darcy. Senator, the adjacency determinations are based 
on science.
    Senator Sullivan. And the general said, ``Arbitrary limits 
within the definition of neighboring are not rooted in 
science.''
    Ms. Darcy. The definitions for neighboring, as well as 
adjacent, were based on the connectivity report that the 
science advisory board provided, and there needed to be a 
decision made as to where the bright line would be drawn as to 
what was going to be jurisdictional and considered to be an 
appropriate water body to be considered for significant nexus 
test.
    Senator Sullivan. Are you more of an expert on these issues 
than General Peabody or the people who drafted those memos?
    Ms. Darcy. I don't believe that I am more of an expert. I 
believe that it is my responsibility in the position where I 
sit that I have to make decisions as to what should be included 
in the rule in order to carry out our obligations under the 
Clean Water Act.
    Senator Sullivan. So you have the authority as a political 
appointee to look at your folks not on a judgment call, but 
just say, hey, general, I know you know more about science than 
I do, but you are wrong; I am right.
    I think Senator Inhofe made a really good point that it 
seems like everybody is wrong with the exception of you in this 
case, and the EPA.
    Ms. Darcy. I don't believe everyone is wrong. I believe 
that if there is a difference of opinion, and it is my 
responsibility to make a call, that is my job.
    Senator Sullivan. Look, I am not trying to badger you here, 
but there is a broader issue at play; it is the issue of what I 
am sure you are familiar with, it is called Chevron deference. 
And the Congress, through the courts and the Supreme Court and 
through our roles here, provides agencies a lot of deference. 
We do it in laws. I actually think we do it too much. The 
courts certainly provide that deference, that Chevron deference 
to agencies.
    So when an agency makes a call and it is reviewed by a 
court, the court says, hey, we are going to give the agency 
deference because we know that the rule was based on the unique 
expertise and experience of the agency.
    That is what Chevron deference is, isn't it? That is why 
your rules are not considered arbitrary and capricious, right?
    Ms. Darcy. Correct.
    Senator Sullivan. But the problem here is that we have memo 
after memo from the top people in your organization saying this 
was not based on our expertise or our experience. So it kind of 
undermines the whole idea of Chevron deference that we grant to 
agencies like you.
    And that is why I think you are going to continue to lose 
in the Federal courts, because if the rule is not based on the 
expertise and experience of senior Corps officials, you may 
have made the call that black is really white when your team is 
telling you that is not the case, but I think you are going to 
have a hard time convincing a court that you deserve Chevron 
deference when the expertise and experience of your agency, 
according to your own experts, was not part of this rule.
    Do you have a comment on that?
    Ms. Darcy. The final rule is based on the Department of the 
Army being the agency. The fact that the memos are now part of 
the public record in some of the court cases that are being 
developed, I will wait to see what the courts do as far as 
Chevron deference with regard to those memos.
    Senator Sullivan. OK. It is a very serious issue, and that 
is why we are holding a hearing.
    Let me just ask a final question. There are a lot of 
concerns on the Federal regulatory process. I think we in the 
Congress need to do a lot more in terms of oversight on this 
process, whether it is in the development of rules, and this is 
what we are focused on here, the development of rules; whether 
it is in the legality of rules, and not the Corps, but the EPA. 
Two Supreme Court terms in a row, big rules that they have 
issued, the Supreme Court has said have violated the Clean Air 
Act.
    In the application of rules, and in a stunning statement, 
and I mentioned at the outset, but I am just stunned by it, the 
Administrator of the EPA essentially said, hey, whether we win 
or lose in the Supreme Court, it doesn't really matter because 
those American people who they are supposed to be represented, 
that we represent, they have to do what we say anyways.
    I am amazed that my colleagues on the other side of the 
aisle don't look at that statement by the EPA Administrator and 
just drop their jaws in shock. That is the most arrogant thing 
I have seen.
    Do you agree with that? Because right now WOTUS, there are 
a lot of people who don't like WOTUS. There are a lot of 
problems with WOTUS from a legal perspective. The Corps even 
said so. Again, I read the memos. They think it is not going to 
pass muster. Of course, the administrator thinks it does, but 
she probably doesn't even care because millions of Americans 
are going to have to abide by it before the Supreme Court 
finally rules on it.
    Do you think that that is the way the regulatory system in 
America should work? And do you think the Administrator's 
comment that drips with arrogance about what her role in the 
Federal Government is, do you think that is appropriate?
    Ms. Darcy. I believe the Administrator was commenting on 
her situation, and my comment here on the waters of the U.S. 
rule is that we are acting within the legal framework that we 
have been presented with, partly because the Supreme Court 
recommended that the Department of the Army and the EPA develop 
a rule under this Clean Water Act, and that is what we have 
done.
    Senator Sullivan. But your own chief counsel thinks that 
this is likely not going to pass constitutional muster.
    Ms. Darcy. No, sir. My chief counsel believes it does. The 
deputy chief counsel for the Army Corps of Engineers at that 
point in time believed it would not.
    Senator Sullivan. OK. OK.
    Senator Whitehouse.
    Senator Whitehouse. Madam Secretary, is it a novelty for 
there to be lively, even intense disagreements, in the internal 
agency deliberations and in the interagency process that lead 
up to a regulatory recommendation?
    Ms. Darcy. Are they unusual, is that what your question is?
    Senator Whitehouse. Would it be a novelty for there to be 
lively and even intense disagreements within the internal 
agency process and within the interagency process as the 
Federal Government prepares a regulation?
    Ms. Darcy. No.
    Senator Whitehouse. It happens pretty often, doesn't it?
    Ms. Darcy. Yes, sir.
    Senator Whitehouse. And let me ask you one other question, 
in the context of this being this like massive outreach of 
Federal power that is going to forbid a farmer from clearing 
his ditch and so forth. Are there any activities that you can 
identify, any at all, that were exempt from permitting 
requirements before this final rule that now the rule reaches 
out to and grabs where it wouldn't have before?
    Ms. Darcy. No.
    Senator Whitehouse. Thank you very much.
    Senator Sullivan. Thank you, Secretary Darcy. We appreciate 
your willingness to answer these questions. This is, as I 
mentioned, an important issue.
    Senator Cardin asked, what is this about? This is about 
oversight. This is about oversight. This is about our 
constitutional role with regard to agencies. The American 
people clearly want more oversight of agencies like the EPA.
    And again, I am a big fan of the Corps, but on these kinds 
of issues they are critical, and what is really critical is 
that the agencies and our Federal Government take action and 
promulgate rules that are based on the intent of Congress and 
statutes, and that is what we are trying to continue to focus 
on. I think my colleagues on both sides of the aisle would 
agree with that.
    What we are trying to do, and Senator Barrasso mentioned 
it, if the rules don't do that, then what we should do is to 
work to pass a law. And we are working to pass a law, and we 
have bipartisan support on a new clean water rule law, and I 
would encourage my colleagues on both sides of the aisle in 
this committee to co-sponsor that important piece of 
legislation by Senator Barrasso.
    Thank you again. This hearing is adjourned.
    [Whereupon, at 11:59 a.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows:]
    
    
   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 
    
                                 [all]
```