IMPACTS OF THE PROPOSED ‘‘WATERS OF THE 

UNITED STATES’’ RULE ON STATE AND LOCAL 

GOVERNMENTS 

House Committee on Transportation and Infrastructure 

Serial No. 114–4 

JOINT HEARING 

BEFORE THE

COMMITTEE ON TRANSPORTATION AND 

INFRASTRUCTURE 

U.S. HOUSE OF REPRESENTATIVES 

AND THE

COMMITTEE ON ENVIRONMENT AND 

PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 4, 2015 

Printed for the use of the 

House Committee on Transportation and Infrastructure and the 

Senate Committee on Environment and Public Works 

( 

IMPACTS OF THE PROPOSED ‘‘WATERS OF THE UNITED STATES’’ RULE ON STATE 

AND LOCAL GOVERNMENTS 

U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

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

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93–070 PDF 2016

IMPACTS OF THE PROPOSED ‘‘WATERS OF THE 

UNITED STATES’’ RULE ON STATE AND LOCAL 

GOVERNMENTS 

House Committee on Transportation and Infrastructure 

Serial No. 114–4 

JOINT HEARING 

BEFORE THE

COMMITTEE ON TRANSPORTATION AND 

INFRASTRUCTURE 

U.S. HOUSE OF REPRESENTATIVES 

AND THE

COMMITTEE ON ENVIRONMENT AND 

PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 4, 2015 

Printed for the use of the 

House Committee on Transportation and Infrastructure and the 

Senate Committee on Environment and Public Works 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

(II) 

HOUSE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

BILL SHUSTER, Pennsylvania, Chairman 

DON YOUNG, Alaska 

JOHN J. DUNCAN, JR., Tennessee, 

Vice Chair 

JOHN L. MICA, Florida 

FRANK A. LOBIONDO, New Jersey 

SAM GRAVES, Missouri 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

LOU BARLETTA, Pennsylvania 

BLAKE FARENTHOLD, Texas 

BOB GIBBS, Ohio 

RICHARD L. HANNA, New York 

DANIEL WEBSTER, Florida 

JEFF DENHAM, California 

REID J. RIBBLE, Wisconsin 

THOMAS MASSIE, Kentucky 

TOM RICE, South Carolina 

MARK MEADOWS, North Carolina 

SCOTT PERRY, Pennsylvania 

RODNEY DAVIS, Illinois 

MARK SANFORD, South Carolina 

ROB WOODALL, Georgia 

TODD ROKITA, Indiana 

JOHN KATKO, New York 

BRIAN BABIN, Texas 

CRESENT HARDY, Nevada 

RYAN A. COSTELLO, Pennsylvania 

GARRET GRAVES, Louisiana 

MIMI WALTERS, California 

BARBARA COMSTOCK, Virginia 

CARLOS CURBELO, Florida 

DAVID ROUZER, North Carolina 

LEE M. ZELDIN, New York 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

STEVE COHEN, Tennessee 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

JOHN GARAMENDI, California 

ANDRE ́ CARSON, Indiana 

JANICE HAHN, California 

RICHARD M. NOLAN, Minnesota 

ANN KIRKPATRICK, Arizona 

DINA TITUS, Nevada 

SEAN PATRICK MALONEY, New York 

ELIZABETH H. ESTY, Connecticut 

LOIS FRANKEL, Florida 

CHERI BUSTOS, Illinois 

JARED HUFFMAN, California 

JULIA BROWNLEY, California 

SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

(III) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vii 

WITNESSES 

PANEL 1 

Hon. Gina McCarthy, Administrator, U.S. Environmental Protection Agency: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 124 

Responses to questions for the record from: 

Majority side Committee on Transportation and Infrastructure .......... 133 

Hon. Richard L. Hanna, a Representative in Congress from the State 

of New York ............................................................................................ 143 

Hon. Sam Graves, a Representative in Congress from the State of 

Missouri .................................................................................................. 146 

Hon. John Katko, a Representative in Congress from the State of 

New York ................................................................................................ 148 

Hon. Barbara Comstock, a U.S. Representative from the Commonwealth of Virginia .................................................................................. 151 

Hon. Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works): 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 152 

Responses to questions for the record from: 

Majority side Committee on Transportation and Infrastructure .......... 160 

Hon. Barbara Comstock, a U.S. Representative from the Commonwealth of Virginia .................................................................................. 167 

PANEL 2 

Hon. E. Scott Pruitt, Attorney General, State of Oklahoma: 

Testimony .......................................................................................................... 69 

Prepared statement .......................................................................................... 169 

Responses to questions for the record from Hon. Barbara Boxer, a U.S. 

Senator from the State of California ........................................................... 172 

Hon. Adam H. Putnam, Commissioner of Agriculture, State of Florida, and 

on behalf of the National Association of State Departments of Agriculture: 

Testimony .......................................................................................................... 69 

Prepared statement .......................................................................................... 173 

Responses to questions for the record from Hon. Barbara Boxer, a U.S. 

Senator from the State of California ........................................................... 176 

Hon. Sallie Clark, Commissioner, District 3, El Paso County, Colorado, on 

behalf of the National Association of Counties: 

Testimony .......................................................................................................... 69 

Prepared statement .......................................................................................... 177 

Responses to questions for the record from Hon. Barbara Boxer, a U.S. 

Senator from the State of California ........................................................... 218 

Hon. Timothy Mauck, Commissioner, District 1, Clear Creek County, Colorado: 

Testimony .......................................................................................................... 69 

Prepared statement .......................................................................................... 219 

Lemuel M. Srolovic, Bureau Chief, Environmental Protection Bureau, Office 

of New York State Attorney General Eric T. Schneiderman: 

Testimony .......................................................................................................... 69 

Prepared statement .......................................................................................... 223 

Responses to questions for the record from Hon. Barbara Boxer, a U.S. 

Senator from the State of California ........................................................... 236 

Page

IV 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Hon. Cory A. Booker, a U.S. Senator from the State of New Jersey .................. 89 

Hon. Benjamin L. Cardin, a U.S. Senator from the State of Maryland .............. 90 

Hon. Sam Graves, a U.S. Representative from the State of Missouri ................ 122 

SUBMISSIONS FOR THE RECORD 

Hon. James M. Inhofe, a U.S. Senator from the State of Oklahoma, submission of comments to Gina McCarthy, Administrator, U.S. Environmental 

Protection Agency, and Maj. Gen. John Peabody, Deputy Commanding General, Civil and Emergency Operations, U.S. Army Corps of Engineers, from 

the following members of the Office of Advocacy of the U.S. Small Business 

Administration: Winslow Sargeant, Ph.D., Chief Counsel for Advocacy; Kia 

Dennis, Assistant Chief Counsel; and Stephanie Fekete, Legal Fellow; October 1, 2014 ............................................................................................................ 239 

Senator Boxer, submission of the following documents: 

Letters of support for the proposed ‘‘waters of the United States’’ rulemaking from the following entities: 

America’s Great Waters Coalition ........................................................... 249 

American Fisheries Society, et al. (Consortium of Aquatic Science 

Societies) ................................................................................................. 254 

American Public Health Association, et al. ............................................. 258 

American Rivers, et al. (Choose Clean Water Coalition) ....................... 259 

American Sustainable Business Council ................................................. 263 

Association of State Floodplain Managers, Inc. ...................................... 266 

Healing Our Waters–Great Lakes Coalition ........................................... 277 

Outdoor Alliance and Outdoor Industry Association .............................. 283 

Rural Coalition, et al. ................................................................................ 287 

Society of Wetland Scientists ................................................................... 292 

U.S. Shorebird Conservation Partnership ............................................... 300 

Alaska Independent Fishermen’s Marketing Association ...................... 302 

EPA Region 10 Tribal Operations Committee ........................................ 303 

Alabama Rivers Alliance ........................................................................... 307 

California Association of Sanitation Agencies ........................................ 311 

California State Water Resources Control Board ................................... 317 

Golden Gate Salmon Association ............................................................. 327 

Forty-three Colorado elected officials ...................................................... 329 

Seventy-four Pennsylvania nongovernmental organizations ................. 332 

Council of the City of Philadelphia, Resolution No. 140541 .................. 338 

League of Women Voters of Pennsylvania .............................................. 342 

Additional letters of support submitted by Senator Boxer are available at the Government Publishing Office’s Federal Digital System 

(FDsys.gov) at https://www.gpo.gov/fdsys/pkg/CPRT-114JPRT95074/ 

pdf/CPRT-114JPRT95074.pdf on pages 1–1022 

Press Release, American Sustainable Business Council, ‘‘Small Business 

Owner Speaks Out for Strong Clean Water Rules in Advance of Joint 

Congressional Hearing,’’ February 3, 2015 ................................................. 344 

Congressman Shuster, submission of the following document referenced by 

Hon. Bob Gibbs, a Representative in Congress from the State of Ohio: 

a Department of the Army work permit issued to a Tennessee resident ........ 346 

Hon. Eleanor Holmes Norton, a Delegate in Congress from the District of 

Columbia, submission of comments to Water Docket, U.S. Environmental 

Protection Agency, from Keith A. Anderson, Director, District Department 

of the Environment, November 3, 2014 ............................................................. 371 

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

submission of the following documents: 

Letter to Massachusetts and Rhode Island congressional delegations, 

from John Troiano, Council Chair, Massachusetts and Rhode Island 

Council of Trout Unlimited, January 29, 2015 ........................................... 374 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency, and Jo-Ellen Darcy, Assistant Secretary of the Army (Civil 

Works), Department of the Army, from Peter F. Kilmartin, Rhode 

Island Attorney General, et al., September 16, 2014 ................................. 375 

Page

V 

Hon. Eddie Bernice Johnson, a Representative in Congress from the State 

of Texas, submission of the following documents: 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency, and Jo-Ellen Darcy, Assistant Secretary of the Army (Civil 

Works), Department of the Army, from Texas State Representative 

Roberto Alonzo, District 104, et al., November 14, 2014 ........................... 379 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency; Water Docket, U.S. Environmental Protection Agency; and JoEllen Darcy, Assistant Secretary of the Army (Civil Works), Department of the Army; from Dan Kocurek, President, Arlington Conservation Council, et al., November 14, 2014 ...................................................... 382 

U.S. Environmental Protection Agency, Office of Research and Development, EPA/600/R–14/475F, ‘‘Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence,’’ Executive Summary, January 2015 ............................................... 386 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency, from Dr. David T. Allen, Chair, Science Advisory Board, and 

Dr. Amanda D. Rodewald, Chair, Science Advisory Board Panel for 

the Review of the EPA Water Body Connectivity Report, October 17, 

2014 ................................................................................................................ 404 

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

of posting of Nancy Stoner, Acting Administrator for Water, U.S. Environmental Protection Agency, to EPA Connect, The Official Blog of EPA’s 

Leadership, http://blog.epa.gov/epaconnect/, June 30, 2014 ............................. 407 

Hon. Grace F. Napolitano, a Representative in Congress from the State of 

California, submission of the following documents: 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency, and Jo-Ellen Darcy, Assistant Secretary of the Army (Civil 

Works), Department of the Army, from Thomas Howard, Executive 

Director, California State Water Resources Control Board, November 

14, 2014; this document was also submitted by Senator Boxer on p. 

317 

Letter to Senator Inhofe, Senator Boxer, Congressman Shuster, and Congressman DeFazio, from David R. Williams, President, California Association of Sanitation Agencies, January 30, 2015 ...................................... 408 

Press Release, American Sustainable Business Council, ‘‘Business Leaders Question SBA Advocacy’s Comments on EPA’s Water Rule,’’ October 2, 2014 ..................................................................................................... 412 

Hon. Donna F. Edwards, a Representative in Congress from the State of 

Maryland, submission of the following documents: 

City of Baltimore, Council Bill 14–0185R, (Resolution), In Support of 

the Definition of ‘‘Waters of the United States’’ Under the Clean Water 

Act Proposed by the U.S. Environmental Protection Agency and the 

U.S. Army Corps of Engineers, September 8, 2014 ................................... 414 

Resolution of the Mayor and Council of the City of College Park, Maryland, In Support of the U.S. Environmental Protection Agency and 

U.S. Army Corps of Engineers Proposed Definition of ‘‘Waters of the 

United States’’ Under the Clean Water Act, 14–R–32, October 14, 2014 416 

Resolution of the Town of Capitol Heights, Maryland, for the Support 

of the U.S. Environmental Protection Agency and U.S. Army Corps 

of Engineers Proposed Definition of ‘‘Waters of the United States’’ 

Under the Clean Water Act, Resolution 2014–13, October 14, 2014 ........ 417 

Mayor and Town Council of Edmonston, Maryland, Resolution in Support 

of the U.S. Environmental Protection Agency and U.S. Army Corps 

of Engineers Proposed Definition of ‘‘Waters of the United States’’ 

Under the Clean Water Act, Resolution 2014–03, October 14, 2014 ........ 420 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency, and Jo-Ellen Darcy, Assistant Secretary of the Army (Civil 

Works), Department of the Army, from Jacqueline Goodall, Mayor, 

Town of Forest Heights, Maryland, October 20, 2014 ............................... 421 

Town of Forest Heights, Maryland, Resolution Supporting the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers Proposed Definition of ‘‘Waters of the United States’’ Under the Clean 

Water Act, Resolution 67–14, November 3, 2014 ....................................... 423 

Page

VI 

Hon. Donna F. Edwards, a Representative in Congress from the State of 

Maryland, submission of the following documents—Continued 

City of Mount Rainier, Maryland, Resolution in Support of the U.S. 

Environmental Protection Agency and U.S. Army Corps of Engineers 

Proposed Definition of ‘‘Waters of the United States’’ Under the Clean 

Water Act, Resolution 13–2014, November 5, 2014 ................................... 425 

City of New Carrollton, Maryland, For the Purpose of Resolving To Support the U.S. Environmental Protection Agency and U.S. Army Corps 

of Engineers Proposed Definition of ‘‘Waters of the United States’’ 

Under the Clean Water Act, Resolution 13–07, October 15, 2014 ............ 427 

Letter to Water Docket, U.S. Environmental Protection Agency, from 

Bridget Donnell Newton, Mayor, City of Rockville, Maryland, et al., 

October 15, 2014 ........................................................................................... 429 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency; Water Docket, U.S. Environmental Protection Agency; and JoEllen Darcy, Assistant Secretary of the Army (Civil Works), Department of the Army; from Paul Pinsky, Maryland State Senate, 22nd 

Legislative District, et al., November 14, 2014 .......................................... 431 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency; Water Docket, U.S. Environmental Protection Agency; and JoEllen Darcy, Assistant Secretary of the Army (Civil Works), Department of the Army; from Jon Zerwitz, Cofounder, Union Craft Brewing 

Co., November 14, 2014 ................................................................................ 435 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency; Water Docket, U.S. Environmental Protection Agency; and JoEllen Darcy, Assistant Secretary of the Army (Civil Works), Department of the Army; from Hugh Sisson, Founder, Heavy Seas Brewing 

Co., November 14, 2014 ................................................................................ 437 

Letter to Gina McCarthy, Administrator, U.S. Environmental Protection 

Agency; Water Docket, U.S. Environmental Protection Agency; and JoEllen Darcy, Assistant Secretary of the Army (Civil Works), Department of the Army; from Thomas Durst, Owner, Hereford Bed & Biscuit, 

November 14, 2014 ....................................................................................... 439 

Hon. Deb Fischer, a U.S. Senator from the State of Nebraska, submission 

of Comments to the Definition of ‘‘Waters of the United States’’ Under 

the Clean Water Act, 79 Fed. Reg. 22188, from the League of Nebraska 

Municipalities, April 21, 2014 ............................................................................. 441 

Hon. Dina Titus, a Representative in Congress from the State of Nevada, 

submission of the following documents: 

Letter to Water Docket, U.S. Environmental Protection Agency, from 

Gale Wm. Fraser II, P.E., Chief Engineer/General Manager, Clark 

County Regional Flood Control District, October 27, 2014 ....................... 456 

Letter to Water Docket, U.S. Environmental Protection Agency, from 

Thomas Minwegen, Chairman, Las Vegas Valley Watershed Advisory 

Committee, October 20, 2014 ....................................................................... 460 

Hon. Lou Barletta, a Representative in Congress from the State of Pennsylvania, submission of letter to Donna Downing, Jurisdiction Team Leader, 

Wetlands Division, U.S. Environmental Protection Agency, from the Commissioners of Columbia County, Pennsylvania: Chris E. Young, Richard 

C. Ridgway, and David M. Kovach, October 15, 2014 ...................................... 462 

ADDITIONS TO THE RECORD 

Additions to the record are available at the Government Publishing Office’s 

Federal Digital System (FDsys.gov) at https://www.gpo.gov/fdsys/pkg/CPRT114JPRT95074/pdf/CPRT-114JPRT95074.pdf on pages 1023–1128 

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(1) 

IMPACTS OF THE PROPOSED ‘‘WATERS OF 

THE UNITED STATES’’ RULE ON STATE AND 

LOCAL GOVERNMENTS 

WEDNESDAY, FEBRUARY 4, 2015 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

JOINT WITH THE

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committees met, pursuant to call, at 10:06 a.m., in Room 

HVC–210, Capitol Visitor Center, Hon. Bill Shuster (Chairman of 

the Committee on Transportation and Infrastructure) presiding. 

Mr. SHUSTER. The hearing will come to order. 

I want to first take the opportunity to welcome everybody here 

today and especially our witnesses, Administrator McCarthy and 

Assistant Secretary Darcy. Thanks for being here today. 

And, again, welcome to the ‘‘waters of the United States,’’ the 

proposed rule, on how it is going to work with State and local governments. 

Before we get started, I would like to explain how we will begin 

our hearing today. And, first of all, full disclosure: I have never run 

a bicameral hearing before today. So if I stumble and bumble a little bit, please bear with me. 

As I mentioned, on the House side, when the gavel goes down, 

everybody’s name has been logged in, and we will go in the order 

of seniority if you were here at the gavel. The Senate will follow 

with Chairman Inhofe’s direction. 

Opening statements will be limited to 5 minutes, and there will 

just be four: both full committee chairs and both full committee 

ranking members. Other Members wishing to make statements 

may use their questioning time to do so, or they can have their 

statements entered into the record. 

There will be a single round of questioning on each panel. We 

have two panels. The 5-minute rule will be strictly enforced. I have 

a quick gavel hand, so when you hear me tapping, please wrap up. 

Please try to watch. 

Again, there is a lot of interest here today. There were 59 members of our committee, which is the entire committee, who said they 

will be attending today. I believe all the Senators also said they 

would be, so potential for 79 people to be here asking questions. So, 

again, I would encourage you to watch the time so I don’t have to 

gavel you down. 

2 

Again, Members will be recognized—we will be alternating between the Senate and the House, Republicans and Democrats— 

Senate Republican, House Republican, Senate Democrat, House 

Democrat. That doesn’t sound like the way we worked it out. I will 

figure it out as we go along. 

OK. Again, as I mentioned, Members arriving for the gavel will 

be recognized first, and those that arrived after the gavel will be 

put in the queue. 

Again, I want to thank Senator Inhofe and Senator Boxer for 

agreeing to hold this bicameral hearing. Senator Boxer has experience with this. We held a bicameral hearing in Los Angeles that 

I took part in a couple years ago. So she is the pro at this. 

As we all know, last April, the administration proposed a rule 

that would expand the reach of the Federal Government under the 

Clean Water Act. This proposal is troubling for a variety of reasons, but I will sum up my biggest concerns. 

The rule undermines the Federal-State partnership under the 

Clean Water Act. This partnership is the basis of the act’s success 

over the last four decades in improving our water quality. Let me 

repeat again: Our water quality has continued to improve over the 

last four decades. And Republicans as much as Democrats, people 

at the Federal level as much as State and local, care about clean 

water deeply. And that is a positive thing, that we have seen our 

water continue to become cleaner and cleaner. 

Many States and local governments, including my State of Pennsylvania, are objecting to this erosion of the partnership and the 

authority. This rule wrongly assumes that States and local governments, including Pennsylvania, don’t know how or don’t care about 

protecting the waters. And, as I mentioned, I think we all deeply 

care about that. 

And while the agencies have had an opportunity to develop a 

reasonable rule, they instead chose to write the proposed rule 

vaguely in order to give the Federal regulators free rein to claim 

Federal jurisdiction over most any water or wet area. 

This rule was developed by the administration without consulting State and local authorities, without considering their rights, 

their responsibilities, their liabilities, and their budgets, and without realistically examining the potential economic and legal impacts on agriculture and other stakeholders. 

If this rule goes into effect, it will open the door for the Federal 

Government to regulate just about anyplace where water collects 

and, in some cases, regulate land use activities. This will cause serious consequences for the economy. It will threaten jobs and result 

in costly litigation. It will negatively impact businesses, farmers, 

homes, roadbuilders, and other job creators. And, most importantly, 

it will negatively impact hardworking, middle-class Americans. 

It will trample the rights of State and local governments and 

their ability to make economic development decisions and, more importantly, public safety decisions. It will restrict the rights of private citizens to decide what they do on their own land. 

Make no mistake, as I said, it will hurt the middle class, driving 

up the cost of food, driving up the cost to own a home. And, again, 

hardworking, middle-class Americans will be affected. 

3 

This rule is an end-run around Congress and another example of 

overreach by the administration. It was twice rejected by Democratic majorities. It was twice rejected by the Supreme Court. This 

proposal tries to force Federal control over the lives of our citizens, 

and not all water needs to be subjected to Federal jurisdiction. 

States should have primary responsibility for regulating waters 

within their individual boundaries. 

Instead of racing to pass down another Federal edict, these agencies should collaborate with the States and local governments and 

other affected stakeholders. 

I am pleased that we are having this hearing today. 

And, once again, I want to make note to my colleagues that the 

5 minutes just expired and I am finished with my statement. So, 

with that, I would now like to recognize Chairman Inhofe for an 

opening statement. 

Senator INHOFE. Thank you, Chairman Shuster. 

It is an honor to be here with our witnesses also. 

I have a number of the same concerns that you do and that you 

stated in your opening statement, which I will not be redundant, 

but my concerns stem not only from the substance of the rule but 

also from the thought process employed by your agencies in developing it, I say to Ms. McCarthy. 

And let me also make this statement too. The other day, Senator 

Boxer and I, we remembered, recalled, that the Clean Air Act was 

successful, that we were both in the House at that time, and we 

both were cosponsors of the amendments of 1990, was it? 

Senator BOXER. Uh-huh. 

Senator INHOFE. And so we have had successes. But we have 

some problems right now that we are looking at that do concern 

me. 

First, I take issue with the fact that the proposed rule, if finalized, would significantly expand Federal authority under the Clean 

Water Act beyond what was intended both by the act and by the 

amendments. Agencies can only carry out the authority that Congress gives them; they can’t create it unilaterally. And that is what 

I believe is happening now. 

I am troubled by the fact that, for many years, the EPA and the 

Corps have embarked on what seems to be a relentless quest to expand the definition of ‘‘waters of the United States’’ and, therefore, 

Federal authority under the Clean Water Act. This agenda has 

been advanced in individual permit decisions by the Corps districts 

across our country. 

But the Supreme Court drew the line when you tried to claim jurisdiction over isolated ponds and wetlands because birds could fly 

there and again when you tried to claim jurisdiction over wetlands 

adjacent to ditches and dry channels. The Supreme Court expressly 

rejected broad assertions over regulatory authority and made it 

clear that all water is not subject to Federal jurisdiction under the 

Clean Water Act. 

Instead of respecting these limits on your authority, you then 

tried to memorialize the most extreme examples of bureaucratic 

overreach, first in the 2011 guidance document and now in this 

proposed rule. 

4 

If this rule is finalized without change, few water bodies and, indeed, few areas of land would escape the regulatory grip of the 

Federal Government, an outcome the Supreme Court deemed unlawful and impermissible. 

We all remember what happened in other efforts legislatively. 

They made an effort to try to change this and, at that time, take 

the word ‘‘navigable’’ out. As I recall, that was Senator Feingold 

and Congressman Oberstar. We defeated their efforts. In fact, they 

were both defeated at the polls shortly after that. 

So I think that this is an issue that certainly has everyone’s attention, and I think it is really wise to have this first hearing. This 

is the first time I remember in 8 years that we have had a joint 

hearing, but it is that significant. 

Now, granted, I am from a rural State, I am from a farm State, 

and they are very much concerned, in an arid State like Oklahoma, 

that we could end up with jurisdiction of the Federal Government 

coming in and doing things that are very punitive. And we are 

going to do everything we can to see that that doesn’t happen. 

So I thank you for joining us and having this as a joint hearing 

today. 

Mr. SHUSTER. Thank you, Mr. Chairman. 

And, with that, we will recognize Mr. DeFazio for an opening 

statement. 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

Broadly, we are here because I remember this, and many of the 

Members sitting on this panel are old enough to remember this: 

The Cuyahoga River actually burned. They used to have signs on 

the bridges, ‘‘Do not throw lighted object from bridge. Flammable 

object below.’’ That is good. 

So, you know, we passed the Clean Water Act. Good start, based 

strongly in 20th-century, mid-20th-century science. But Congress 

has failed to revisit the Clean Water Act meaningfully since 1987. 

Science has advanced. Our understanding of waters and their value 

and their permeability over artificial boundaries between States 

has grown during that time period. Yet Congress hasn’t acted. 

The Supreme Court has. We have confusing, conflicting guidance, 

a 4–1–4 decision by the Supreme Court. They basically begged Congress to act or the agencies to clarify when they put forward that 

ruling. 

Yet what we have had is, you know, we had the Bush administration attempting to put forward guidance, 2003 and 2008. And 

their guidance was said to be, quote, ‘‘a hodgepodge of ad hoc and 

inconsistent jurisdictional theories.’’ That was a comment by the 

Farm Bureau at the time. 

I think their guidance failed on two counts. One is to give us the 

protections we need and, secondly, to give us the regulatory certainty that the economy needs and those who are working in and 

around waters of the U.S. Failed on both counts. I think there is 

some agreement on that, yet last year the House passed a bill that 

would have locked us into the 2003/2008 guidance forever. No 

changes could be made, no matter what was brought forward. 

And that is what brings us here today. The issue is, was the rule 

as proposed initially confusing? Yes. Did it raise concerns, tremendous concerns? Yes. They have had about 1 million comments. The 

5 

question is, what has happened since? Has the Agency heard from 

those million comments? Have they clarified? Have they modified 

it? I hear they have and they are working on that, and yet there 

are some who want to bring that process to a halt before it is mature. 

If the Agency goes forward with a rule and it is not stopped by 

Congress—Congress has many tools at its disposal, including the 

60-day regulatory review process where, if it is found to be objectionable, Congress can register its objections by overturning the 

rule. Or we have other tools at our disposal. 

But I believe we should let the Agency go forward. I believe they 

have heard the concerns. I mean, I am going to be questioning on 

the issues of ditches, on the issues of agriculture practices and 

erosional features and those sorts of things. Have those things been 

clarified? 

You know, I believe that, in acting, they need to do three things: 

It should be conducted more transparently. They should post all 

the comments that have been submitted. They should continue to 

meet with stakeholders. The final rule should be guided by science 

and the law. It should not expand Federal authority over waters 

never before covered by this act. And, third, they need to move 

quickly to end the confusion and the uncertainty and get the rule 

out. 

So I think what we are here today is to figure out if they are on 

that path or not. And if they are on that path, I believe we should 

let them proceed. If they are not, then perhaps further action is 

warranted. 

Thank you, Mr. Chairman. 

Mr. SHUSTER. Thank you, Mr. DeFazio. 

Now I will recognize Senator Boxer. 

Senator BOXER. Thank you so much, Mr. Chairman, for this joint 

hearing, where I think if everyone shows up maybe half the Congress will be here. It is great for me to be with my House colleagues. I served proudly there for 10 years. I have the ultimate 

respect for the House as well as, of course, for the Senate. 

Mr. Chairman, as you know, I have been around a while. I have 

never had a constituent of either party come up to me and say, 

Barbara—or Senator Boxer, depending on how well they knew 

me—Barbara, the water is too clean, you know, the air is too pure. 

Never. On the contrary, they want their families protected. And 

this goes for people of every party. And it has been kind of my 

mantra for so many years to protect them. 

And I want to remind folks that the Senate committee is called 

the Environment and Public Works Committee, not the anti-environment public works committee. And so my concern here today is 

that we are focusing on the wrong thing. I want to focus on what 

we need to do to keep our families safe. 

We heard eloquently from all my colleagues. Congressman 

DeFazio reminded us that a long time ago, decades ago, the Cuyahoga River in Cleveland was on fire. Lakes were dying from pollution. Why do you think Congress, in the most bipartisan way, 

passed the Clean Water Act? Because the people demanded it. 

And, unfortunately, the beat goes on. Even with our landmark 

laws—and my colleague is correct. We agree that the Clean Air Act 

6 

was successful. He doesn’t love it so much now, but he liked it 

then, and I liked it then. And I think we need to keep on top of 

the challenges. 

Let me tell you one. Recent events in Toledo, Ohio, on the shores 

of Lake Erie remind us that the battle to protect our Nation’s 

water continues. Last summer, a half-million Toledo residents went 

without drinking water for days because nutrient pollution washed 

into Lake Erie, causing toxic algae to bloom. Because what happens is what goes on upstream and flows into our recreational 

lakes and our drinking water is what this rule is all about, how 

do we protect that water. 

Now, 1 in 3 Americans, 117 million people, get some or all of 

their drinking water from water systems that rely, in part, on 

small streams, including many that may not flow year-round. 

The point is, what we do here—and I want to compliment the 

Obama administration, represented ably by two fantastic women, 

I might say—what they are doing is in the tradition of bipartisanship. Because when you look back, defending our waterways from 

pollution used to be bipartisan. The Reagan administration and the 

George W. Bush administration defended the broad scope of the 

Clean Water Act before the Supreme Court. And, for decades, 

Members of both parties understood that wetlands, lakes, and 

small streams are interconnected and water pollution must be controlled at its source. 

This is not hyperbole. I would not be here were it not for Republicans in my State who support a clean environment. That is the 

truth. 

Now, I guess what I need to tell you is that a variety of stakeholders support the proposed clean water rule. A September 2012 

poll found that, regardless of political affiliation, 79 percent of 

hunters and anglers favor restoring Clean Water Act protections to 

wetlands and waterways, including smaller creeks and streams. A 

2014 poll found 80 percent of small-business owners support protections for upstream headwaters and wetlands in the proposed 

clean water rule. 

There has been a lot of misinformation. When I heard my colleagues say, ‘‘Oh, my God, the Obama administration wants to protect a puddle,’’ I thought, ‘‘That can’t be.’’ Well, it isn’t. You don’t, 

at all. A puddle, swimming pools, stock ponds are not regulated. 

We know that for a fact. And isolated ponds that were mentioned 

by my friend, my dear friend Senator Inhofe, they are not involved 

in this at all. 

So let’s set aside fact from fiction. Let’s work together on a rule 

that makes sense. So many people have spoken and given their 

opinions. I have it in this testimony, which I ask unanimous consent to include in the record. 

Mr. SHUSTER. With no objection, so ordered. 

[The collection of op-eds and articles submitted by Senator Boxer 

is available at the Government Publishing Office’s Federal Digital 

System (FDsys.gov) at https://www.gpo.gov/fdsys/pkg/CPRT114JPRT95074/pdf/CPRT-114JPRT95074.pdf on pages 1–83.] 

Senator BOXER. And I am going to ask about some of their comments. 

7 

But it is time to restore much-needed certainty, consistency, and 

effectiveness to the Clean Water Act and put our Nation back on 

track toward clean and healthy waters for every one of our constituents. 

Thank you very much. 

Mr. SHUSTER. I thank the Senator. 

And, again, it is my pleasure to welcome our first panel again. 

Today, it is the Honorable Gina McCarthy, who is the Administrator of the U.S. Environmental Protection Agency, and the Honorable Jo-Ellen Darcy, Assistant Secretary of the Army for Civil 

Works. 

I ask unanimous consent that our witnesses’ full statements be 

included in the record. 

Without objection, so ordered. 

And since your full statements are part of the written testimony, 

I would ask you to limit your testimony today to 5 minutes. 

And, with that, Administrator McCarthy, you may proceed. 

TESTIMONY OF HON. GINA MCCARTHY, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGENCY; AND HON. JOELLEN DARCY, ASSISTANT SECRETARY OF THE ARMY (CIVIL 

WORKS) 

Ms. MCCARTHY. Good morning, Chairman Inhofe, Ranking Member Boxer, Chairman Shuster, Ranking Member DeFazio, and 

members of both committees. I am very pleased to be here to testify with Assistant Secretary Jo-Ellen Darcy to discuss EPA and 

the U.S. Army Corps of Engineers proposed clean water rule. 

Our goal in this rule is very straightforward. It is to respond to 

requests from stakeholders across the country to make the process 

of identifying waters protected under the Clean Water Act easier 

to understand, to make it more predictable and more consistent 

with the law and peer-reviewed science. 

We believe the result of this rulemaking will be to improve the 

process for making jurisdictional determinations under the Clean 

Water Act by minimizing delays in costs, to make protections of the 

Nation’s clean waters more effective, and to improve predictability 

and consistency for landowners. 

The foundation of the agencies’ rulemaking effort to clarify protections under the Clean Water Act is the goal of providing clean 

and safe water for all Americans. 

Consider these facts about the value of clean water to Americans: 

Manufacturing companies use 9 trillion gallons of freshwater every 

day. Thirty-one percent of all water withdrawals in the U.S. are for 

irrigation. About 40 million anglers spend $45 billion annually to 

fish in U.S. waters. The beverage industry uses more than 12 billion gallons of water annually to produce products valued at $58 

billion. And approximately 117 million people get their drinking 

water from public systems that rely on seasonal, rain-dependent, 

and headwater streams. 

In recent years, several Supreme Court decisions have raised 

questions regarding the geographic scope of the Clean Water Act. 

In response to these questions as well as significant stakeholder requests for our rulemaking, the agencies began developing a proposed rule. The agencies’ proposed rule provides continuity with exVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
8 

isting regulations where possible. And we can reduce confusion and 

transaction costs for the regulated community and the agencies as 

we move forward with the final rule. 

To that end, the agencies proposed specific categories of rules 

that are and are not jurisdictional. The proposed rule also discusses several regulatory alternatives that would reduce or eliminate the need for case-specific evaluations and provide greater clarity. 

Using the input from our discussions with the agriculture community, EPA and the Corps are coordinating with USDA to ensure 

that concerns raised by farmers in the agriculture industry are effectively addressed in the final rule. The final rule will not change 

in any way existing Clean Water Act exemptions from permitting 

for discharges of dredged and/or fill materials into the waters of the 

U.S. associated with agriculture, ranching, and forestry activities. 

I also want to emphasize that farmers, ranchers, and foresters 

who are conducting the activities conducted by the exemptions, like 

plowing, tilling, planting, harvesting, building and maintaining 

roads, ponds, and ditches, and many other activities, can continue 

these practices after the new rule without the need for any approval from the Federal Government. 

Additionally, we expect to clarify for the first time in regulation 

that groundwater is not subject to the Clean Water Act. The proposed rule reduces jurisdiction over ditches and maintains the longstanding exclusions of prior converted cropland and waste treatment systems, including treatment ponds and lagoons. 

In preparation for the proposed rule, the EPA reviewed and summarized more than 1,200 peer-reviewed scientific papers and other 

data, and the EPA’s Office of Research and Development prepared 

a draft peer-reviewed synthesis of public peer-reviewed scientific 

literature. This draft report informed the agencies’ development of 

the proposed rule. 

The draft report itself underwent independent peer review, led 

by EPA’s Science Advisory Board. And the final report was published in the Federal Register on January 15, 2015. The final rule 

will carefully reflect the SAB’s recommendations and all the data 

and information presented in the final report. 

We also want to emphasize that EPA responded to a request 

from the Science Advisory Board to review the effectiveness in basing the agencies’ proposed rule on the best available peer-reviewed 

science, and that conclusion is also part of the docket and supportive of this rulemaking moving forward. 

So let me conclude by emphasizing my strong belief that what is 

good for the environment is good also for farmers, ranchers, foresters, manufacturers, homebuilders, small businesses, and everyone in the United States. We all want clean water, and this rule 

will help ensure that we can identify the waters necessary to protect with clarity so that all these activities can continue. 

So I look forward to answering your questions. 

Mr. SHUSTER. Thank you, Administrator McCarthy. 

And now I will recognize Assistant Secretary Darcy for her statement. 

Ms. DARCY. Thank you, Mr. Chairman. 

9 

Chairman Shuster, Chairman Inhofe, Ranking Member DeFazio, 

Ranking Member Boxer, thank you for the opportunity to testify 

today alongside my friend and colleague Gina McCarthy. 

We believe that the proposed rule provides the clarity, consistency, and predictability that Members of Congress and the regulated public have requested. It balances the protection of our Nation’s aquatic resources while allowing fair and reasonable development. Most importantly, our proposal is based upon science, including a peer-reviewed report on connectivity and the recommendations of EPA’s Science Advisory Board. 

Under section 404 of the Clean Water Act, the Corps regulates 

discharges of dredged or fill materials into waters of the United 

States, including wetlands. Nationwide, the Corps makes final decisions on over 81,000 permit-related activities and approximately 

56,000 jurisdictional determinations annually, so efficiency is very 

important to us as well as to the regulated community that we 

serve. 

The proposed rule is fully consistent with several Supreme Court 

decisions regarding the Clean Water Act jurisdiction, specifically 

the Riverside Bayview Homes, regarding adjacent wetlands; the 

SWANCC decision, having to do with isolated water bodies; and the 

Rapanos decision, which dealt with waters that are not navigable 

in the traditional sense. It was in the Rapanos decision that Justice Kennedy stressed the notion that waters that possess a significant nexus to navigable waters could reasonably be made, so are 

subject to Clean Water Act jurisdiction. 

Based upon policy guidance that was promulgated in 2003 and 

in 2008, we have been doing case-specific significant-nexus analysis 

determination for many categories of nonnavigable streams and 

wetlands. These determinations require extensive documentation 

and fieldwork, requiring significant resources and time. 

Permit applicants have expressed concern about how significantnexus determinations are being made. We have received comments 

from Congress, business, industry, agriculture interests, scientists, 

other stakeholders, and the public urging us to pursue a noticeand-comment rulemaking. Chief Justice Roberts himself, in the 

Rapanos decision, stated that the agencies would be in a better position if they had conducted a notice-and-comment rulemaking. 

As noted by the Administrator, the proposed rule retains much 

of the structure of the agencies’ longstanding definition of ‘‘waters 

of the United States,’’ including many of the existing provisions not 

directly impacted by Rapanos and SWANCC. The agencies are not 

proposing to substantively change the provisions of traditional navigable waters, interstate waters, and the territorial seas. 

For the first time, we are proposing a regulatory definition for 

the term ‘‘tributaries.’’ Only those waters that flow into a traditional navigable water, interstate water, or territorial sea are jurisdictional as tributaries. We also propose that the term ‘‘adjacent’’ 

cover both adjacent wetlands and other adjacent water bodies. 

These new definitions will significantly clarify what waters are 

jurisdictional by rule using well-understood ecological concepts. For 

some categories of waters, no additional site-specific analysis would 

be required for certain adjacent waters. 

10 

Our decision to regulate by rule all tributaries and adjacent waters and wetlands is based on our understanding that these waters, 

alone or in combination with similarly situated waters in a watershed, have a significant nexus to a traditional navigable water, 

interstate water, or territorial sea. And this is based on the currently available science. 

By decreasing the number of jurisdictional determinations that 

require a case-specific significant-nexus analysis evaluation, the 

proposed rule is expected to reduce documentation requirements 

and processing times for these. 

The agencies propose for the first time to exclude by rule certain 

waters and features over which the agencies have a policy to assert 

jurisdiction, such as certain ditches. Waters and features that are 

determined to be excluded from the jurisdiction will not be jurisdictional under ‘‘waters of the U.S.’’ 

Over 1 million comments were received, as the Administrator indicated, and we intend to consider each of those comments when 

we develop the final rule. 

I see my time has expired. Thank you. 

Mr. SHUSTER. Thank you, Madam Secretary. 

And, with that, again, we are going to go to questions. And the 

way we are going to run it, again, is I will go to a Senate Republican, Senate Democrat, then back to a House Republican and 

House Democrat. 

So, with that, I yield 5 minutes of questions to Chairman Inhofe. 

Senator INHOFE. Thank you, Mr. Chairman. 

Ms. McCarthy, when you first opened up, you said that you were 

responding to the stakeholders across the country. And as I read 

the statements from the stakeholders across the country, they all 

seem to be on the other side of this. I would almost have to ask 

you who you are referring to. 

The Small Business Administration Office of Advocacy states, 

‘‘Advocacy recommends that the agencies withdraw the rule’’ and 

conduct a small business review panel prior to promulgating the 

rule. 

And I would ask unanimous consent that that letter be placed in 

the record at this point, Mr. Chairman. 

Mr. SHUSTER. Without objection, so ordered. 

[The information is on pages 239–248.] 

Senator INHOFE. The Regulatory Flexibility Act requires the examination of impacts of proposed rules. This is something that 

wasn’t done. 

Groups like municipal groups, the U.S. Conference of Mayors, 

National League of Cities, National Association of Counties, National Association of Regional Councils—all of them are very much 

on the other side. 

Now, we are going to hear, I know, from our attorney general, 

Scott Pruitt, and from others in the second panel, and I am anxious 

to get to that second panel. 

Let me make one comment, Mr. Chairman, that we are having, 

right now, our confirmation hearing on Ash Carter to be Secretary 

of Defense. I may have to be leaving from time to time for that purpose. 

11 

Ms. McCarthy, our attorney general, Scott Pruitt, believes that 

your proposal exceeded your authority under the Clean Water Act 

and points out in his testimony that the Supreme Court stopped 

the Corps from regulating nonnavigable isolated intrastate water, 

but your proposal would bring all of these under Federal control 

because of use by the birds and animals. 

Can you explain to us how the use of water by a bird or animal 

can be a legal basis for regulating water under the Clean Water 

Act, briefly? 

Ms. MCCARTHY. Senator, it is my understanding that that is not 

sufficient as a sole reason for jurisdiction. And that was indicated—— 

Senator INHOFE. All right. That is—— 

Ms. MCCARTHY [continuing]. By the Supreme Court. But that is 

not what this rule intends to do or specifically does. 

Senator INHOFE. All right. 

Adam Putnam, the Florida commissioner of agriculture, says 

that on farms in Florida there are low spots, ditches, irrigation 

channels that capture, store, and carry water from rainfall. 

Will your final rule make it clear that these features are not ‘‘waters of the United States’’? 

Ms. MCCARTHY. In this final rule, we actually reduce the jurisdiction of the Clean Water Act relative to ditches by making clear 

that there are a variety of other ditches that should be excluded 

from jurisdiction. 

And we do the best we can to explain those from erosional features, but I will say that there has been a lot of comment that indicate confusion there. And we are really looking forward to clarifying that, because in no way do we intend to reduce the exclusions 

or exemptions that are currently in the Clean Water Act. 

Senator INHOFE. Thank you. 

The EPA has described concerns about Federal control over fields 

and industrial facilities, really any piece of land that is not flat, because when it rains, that water runs downhill and forms drainage 

features such as—and they declare that as a myth. 

Now, this thing here is from Tennessee. It is a picture of a farmer’s field in Tennessee. The State of Tennessee said it was a wetweather conveyance. In other words, it only had moving water 

when it rains. But the Corps called it a stream, subjecting it to 

your proposed new regulation. 

Do you agree with the Corps? 

Ms. MCCARTHY. I am sorry, sir. I can’t, on the basis of a picture, 

make a science determination. 

Part of the reason to do this rule is to look at the current science 

and to try to provide the clarity that people need so that the determinations are clear, the reasons why are clear, and people can actually do farming and agriculture and ranching with much more 

certainty. 

Senator INHOFE. Ms. Darcy, was that an accurate representation 

of your or the Corps’ comments? 

Ms. DARCY. Yes, sir. 

Senator INHOFE. All right. 

And you also said in a press conference, you said that the increase—talking about the President’s budget—the increase that 

12 

would be going to the Corps was linked to the proposed rule that 

we are talking about today. Was that accurate? 

Ms. DARCY. Yes. 

Senator INHOFE. So if this proposed rule goes final, are you going 

to need those additional resources to regulate more waters? 

Ms. DARCY. We will need those additional resources to implement 

the rule, sir. 

Senator INHOFE. Thank you, Mr. Chairman. 

Mr. SHUSTER. Thank you, Mr. Chairman. 

And, with that, Senator Boxer is recognized for 5 minutes for 

questions. 

Senator BOXER. Thank you, Mr. Chairman. 

I would like to place into the record letters that I have received 

at the committee from over 1,000 groups from 44 States supporting 

this proposal. 

And I am going to read just some of them to give colleagues an 

idea of the broad support this rule is receiving: America’s Great 

Waters Coalition, American Fisheries Society, American Public 

Health Association, American Rivers, American Sustainable Business Council, Association of State Floodplain Managers, Great 

Lakes Coalition, Outdoor Alliance, Outdoor Industry Association, 

Rural Coalition, Society of Wetland Scientists, Southern Environmental Law Center, U.S. Shorebird Conservation Partnership, 

Waterkeeper Alliance, Alaska Independent Fishermen’s Marketing 

Association, EPA Region 10 Regional Tribal Operations Committee, 

the Alabama Rivers Alliance. 

In California, just to name a few: the California Association of 

Sanitation Agencies, California State Water Resources Control 

Boards, the Golden Gate Salmon Association. 

In Colorado, a joint comment letter from 43 elected officials. 

In Oklahoma, the Conservation Coalition of Oklahoma, the 

Groundwater Protection Council, the Indian Country Agriculture 

and Resource Development Corporation, a number of others. 

In Oregon, a number, including the city of Portland. 

In Pennsylvania, a joint letter from 74 Pennsylvania NGOs, a 

whole list from Pennsylvania, including a Philadelphia resolution 

in support of the rule, League of Women Voters of Pennsylvania, 

and it goes on. 

So I want to put those letters in the record, if there is no objection. 

Mr. SHUSTER. Without objection, so ordered. 

[The information, except for letters from Southern Environmental Law Center and Waterkeeper Alliance, is on pages 249– 

343. Letters from Southern Environmental Law Center and 

Waterkeeper Alliance, as well as over 1,000 pages of additional letters of support, are available at the Government Publishing Office’s 

Federal Digital System (FDsys.gov) at https://www.gpo.gov/fdsys/ 

pkg/CPRT-114JPRT95074/pdf/CPRT-114JPRT95074.pdf on pages 

1–1022.] 

Senator BOXER. Ms. McCarthy, we have heard claims that many 

waters would be regulated that are actually exempted from your 

rule. 

So can you clarify? If you can do it with a ‘‘yes’’ or ‘‘no’’ or a 

‘‘maybe.’’ And then if you say ‘‘maybe,’’ we will go into it. 

13 

Isolated puddles. 

Ms. MCCARTHY. Exempted. 

Senator BOXER. I can’t hear you. 

Ms. MCCARTHY. I apologize. They continue to be exempt. 

Senator BOXER. So isolated puddles are not regulated. Is that 

correct? 

Ms. MCCARTHY. That is correct. 

Senator BOXER. Isolated ponds not connected to other waters, are 

those going to be regulated under your rule? 

Ms. MCCARTHY. No. 

Senator BOXER. Artificially irrigated areas, will they be regulated 

under your rule? 

Ms. MCCARTHY. No, Senator. 

Senator BOXER. Reflecting pools and summer pools, will they be 

regulated under your rule? 

Ms. MCCARTHY. No, Senator. 

Senator BOXER. What about water-filled depressions that are incidental to construction, will they be regulated under your rule? 

Ms. MCCARTHY. No. 

Senator BOXER. Jo-Ellen Darcy, do you agree with that? 

Ms. DARCY. I do, Senator. 

Senator BOXER. OK. 

I would ask unanimous consent to place into the record a very 

interesting press release from business leaders who support this 

rule, the American Sustainable Business Council. So I would ask 

permission to get that into the record. 

Mr. SHUSTER. Without objection, so ordered. 

[The information is on pages 344–345.] 

Senator BOXER. And, finally, I wanted to talk about the many 

comments that were received. Could you tell us how many comments were received approximately? My understanding is about 1 

million, but I am not sure I am right on that. 

Ms. DARCY. Yes. The last number I saw was over 900,000, so we 

are talking nearly 1 million comments. 

Senator BOXER. OK. 

And I want to make sure, because Congressman DeFazio talked 

about transparency. Have you extended the rulemaking time so 

that even more people could get their comments in? And are these 

comments open, and can we all read the comments? 

Ms. DARCY. We extended the comment period this fall. I believe 

the public comment period closed November 14th of 2014. We had 

added an additional 45 days from the initial comment period, so 

there was additional time given. The proposed rule went out last 

spring. 

Senator BOXER. And the comments will be published; is that correct? 

Ms. DARCY. Yes. 

Senator BOXER. For all to see? 

Ms. DARCY. Yes. 

Senator BOXER. Well, Mr. Chairman, you know, I am confused 

because I think people are arguing against some mythical rule. 

And I do think the Obama administration has been very careful 

not to overreach on this. 

14 

And we keep hearing about how this President issues more Executive orders. Now, this is a rule, but, just for the record, President 

Obama has issued fewer Executive orders than President Reagan, 

both Bushes, President Clinton. 

And I think this rule is an example of your ability—two leading 

voices here, who have common sense. We don’t want to regulate a 

puddle. That is ridiculous. That doesn’t hurt anybody. We want to 

regulate a body of water that has pollutants in it and those pollutants wind up in the drinking water system in Ohio or California 

or Pennsylvania or Oklahoma or Oregon or any other place. 

So I want to just thank you so much. 

And, again, Mr. Chairman, thank you for this opportunity. 

Mr. SHUSTER. Thank you, Senator Boxer. 

With that, I am up first. And the chairman’s prerogative, I am 

going to go first to the gentleman from Ohio, the gentleman who 

is the chairman of the Subcommittee on Water Resources and Environment, also a farmer, also the former chairman of the Ag Committee in the Ohio State Legislature. So he is not only a policy expert, he knows practically what this means to farmers out there. 

So, with that, I yield 5 minutes for questions to Mr. Gibbs. 

Mr. GIBBS. Thank you, Mr. Chairman. 

Just to clarify from some of the opening statements, everybody 

in this room wants clean water and clean drinking water and to 

protect the environment. But, unfortunately, this rule, as proposed, 

doesn’t get us there, and we do need clarification. And I am going 

to try to demonstrate that in a couple minutes. 

Assistant Secretary Darcy, I want to start where we left off in 

my committee last year. We were talking about the erosional feature, and I actually gave an example on my farm, and you said 

that would not be under ‘‘waters of the United States.’’ 

And I happen to have the same picture; it is just a little bit 

smaller than Senator Inhofe’s, but I want to bring that up. I won’t 

even ask the question. I will just start. 

This is in Tennessee, like Senator Inhofe said. This was declared 

a tributary of ‘‘waters of the United States.’’ This was declared a 

‘‘waters of the United States.’’ 

Now, it looks like to me it is an erosional feature. OK? And 

maybe it looks like to me it should be a grass waterway. But if 

they are going to already make that—and the reason it was already declared, because this landowner had to go get a permit. And 

here is the permit. And they spent a pile of money getting through 

that. 

Now, the problem is, when that kind of land feature or farmland 

layer is declared ‘‘waters of the United States,’’ that means they 

have to get a section 404 permit to fill that in or to put in a grass 

waterway. They would have to get a 402 permit from the EPA if 

they are going to spray herbicides or pesticides. 

This is where I think you go backwards a little bit. If farmers 

are working with the Soil Conservation Service, trying to do the 

right thing, like I did on my farm, but now, if it is already declared 

‘‘waters of the United States’’ by the interconnectivity rule, the 

neighbors in that watershed are automatically declared that. Then 

they have to go get a 404 permit to fix that. And that might take 

15 

some time, it is going to overburden the agencies, and I don’t think 

we are going to enhance the protection of the environment. 

That is the first concern I have on that aspect. Then, if you the 

Corps are going to declare that ‘‘waters of the United States,’’ obviously, then, township road ditches are going to be declared ‘‘waters 

of the United States,’’ if you are going to declare an ephemeral like 

that. That is my first concern. 

Now we have a second picture. This was done by an engineering 

firm who are experts in this field, and this is the current jurisdiction of ‘‘waters of the United States’’ on some property just south 

of Ohio and Kentucky. You can see the creeks there in the blue and 

some of the intermittent streams. There are 96 miles of intermittent streams, 47 miles of perennial. 

Then the next picture—hold that up—is what it would be under 

the proposed new rule. We now have 384 ephemeral streams. And 

that just opens it up to the whole thing and causes a lot of concern. 

That is where the agriculture community is really concerned. 

I think the pictures say what the issue is here. And if you want 

to comment, Assistant Secretary, quickly, you can, because I want 

to move on. 

Ms. DARCY. I would say, Congressman, that the picture you 

showed earlier, similar to the one from Senator Inhofe, that it was 

determined jurisdictional under the current rule; however, under 

the proposed rule, it would not be jurisdictional. 

Mr. GIBBS. OK. Do we have your commitment that those 

wouldn’t be in the—— 

Ms. DARCY. Under the proposed rule—— 

Mr. GIBBS. OK. 

Ms. DARCY [continuing]. They would not be jurisdictional. 

Mr. GIBBS. Administrator McCarthy, you put out a press release 

today and said that 60 percent of the streams and millions of acres 

of wetlands across the country aren’t clearly protected from pollution and destruction. And you went on to say that your agencies 

have proposed to strengthen protections to clean water. I thought 

this was all about clarifying, not strengthening. 

But I want to back up here, where you say clearly—aren’t clearly 

protected. It is my understanding that the State EPAs have to, 

every 3 years, submit a plan of action to your agency. And that is 

where the oversight and the guidance creates the cooperative federalism to work together. 

When I read your press release, I would have to assume that 

maybe your agency is not doing what you are supposed to be doing. 

Ms. MCCARTHY. Well, Congressman, it is our intent in this rulemaking to make sure that the confusion that has arisen from earlier Supreme Court decisions are clarified. And I think it is incredibly important that we minimize delays and we minimize costs associated with the implementation of this rule, that we make our 

protections more effective. 

Mr. GIBBS. Well, I would also—— 

Ms. MCCARTHY. And we are going to do that by—— 

Mr. GIBBS. Excuse me. Reclaiming time, let me go on. Let me go 

back here to this example in Tennessee. Tennessee, on stormwater 

and the picture we had, had actually more stringent rules than 

what the EPA currently has. So they are doing their job. And now 

16 

you are going to add more cost, because they are going to have to 

redevelop their plans, and it is going to add more cost. 

When you look at some of the 900,000 comments, a lot of them 

are by Governors, majority of the States, and they question—the 

process is inadequate. You did not consult the States, you did not 

consult the State EPAs. They say that in their comments. 

You know this process is broken. You need to stop the process 

and go back, and let’s start over. 

I yield back my time. 

Mr. SHUSTER. And, with that, I will allow the witness to respond 

to that. 

Ms. MCCARTHY. Well, I think we have been working very closely 

with the States for many years, and it is, in fact, the States, as 

well as stakeholders and the Supreme Court, who told us we needed to go back and take a look at the science and make this on much 

more sure footing in terms of what the science tells us today about 

what waters are essential for protection. 

But I would just reinforce the fact that I understand that everybody here wants clean water. I also understand that the agriculture community is sincere in wanting to have clean water but 

also certainty that they can continue to farm and ranch and do the 

silviculture that we all rely on. 

That is what we are trying to clarify with this rule. That is the 

predictability. That is how we are going to get better and enhance 

our relationship with the States and our effectiveness as Federal 

agencies. 

Mr. SHUSTER. Thank you. 

And, with that, I would like to ask unanimous consent that the 

permit that Mr. Gibbs had be submitted to the record. 

So, without objection, so ordered. 

[The information is on pages 346–370.] 

Mr. SHUSTER. And, with that, I recognize Mr. DeFazio for 5 minutes. 

Mr. DEFAZIO. Assistant Secretary Darcy, as I understood your response to this case in Tennessee, you said, because of what has 

been referred to as the Farm Bureau view, the hodgepodge of ad 

hoc and inconsistent jurisdictional theories in the Bush rules, that 

was ruled, apparently, as a wetland. But you are saying, under the 

new clarified rules, it would not be. If it is a farming activity, it 

would be exempt. 

Is that correct? 

Ms. DARCY. That is correct. 

Mr. DEFAZIO. OK. 

So if we are stuck with the Bush guidance, then that farmer is 

stuck with that ruling. If we move beyond the Bush guidance, that 

farmer and other farmers would be exempt, given similar circumstances—— 

Ms. DARCY. Correct. 

Mr. DEFAZIO [continuing]. With erosional features. OK. Excellent. 

You know, you have received 1 million comments. I assume that, 

you know, as we heard, they are all going to be posted. They 

haven’t been. I think that would be useful. You don’t have to post 

108,000, 200,000, 300,000 identical postcards but at least an examVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
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ple of one thing. There are 300,000 postcards like this. But it 

should all be posted. 

Now, have you listened? Are we going to have clarifications and 

changes in the final rule, Administrator McCarthy? 

Ms. MCCARTHY. Yes, sir. 

Mr. DEFAZIO. OK. So we are going to have changes. 

Ms. MCCARTHY. Yes. 

Mr. DEFAZIO. Has any member of this panel seen those proposed 

changes? 

Ms. MCCARTHY. Not as yet, no. 

Mr. DEFAZIO. OK. Have any of the advocacy groups on either 

side of the issues seen those proposed changes? 

Ms. MCCARTHY. Not as yet, no. 

Mr. DEFAZIO. OK. 

So you are going to be responsive to concerns that have been 

raised about ditches, about erosional features, and other major, you 

know, consistent, persistent concerns that I have heard in this rule. 

You are going to clarify. And you go on to say that, in fact, ditches 

will be—there will be more clarification and exemption for ditches 

than under the Bush rule. 

Ms. MCCARTHY. That is correct. 

Mr. DEFAZIO. OK. So why would we want to stop that? 

Ms. MCCARTHY. I think one of the reasons to go to rulemaking, 

which was a judgment that this administration made, was to listen 

to all of the people who said that this is important enough. And 

the transparency and certainty of the rulemaking process is what 

we need. We put a proposal out specifically to generate comment—— 

Mr. DEFAZIO. Right. But the comment—— 

Ms. MCCARTHY [continuing]. To learn from that. 

Mr. DEFAZIO. You will admit that the initial rule did create a 

good deal of confusion. 

Ms. MCCARTHY. Yes. 

Mr. DEFAZIO. You had to keep issuing statements saying, it 

doesn’t do this, it doesn’t do that, it doesn’t do this, it doesn’t do 

that. 

And then now people think—and please clarify this; this is a 

major objection—that if you haven’t specifically exempted something in this rule or with your clarifications, that everything else 

is covered. Will you please clarify that that is not true? 

Ms. MCCARTHY. That is not true. 

And you are absolutely right; we are looking to provide more 

clarity on the basis of the comments we received. We are not expanding the jurisdiction of the Clean Air Act. We are not taking 

away current exemptions. We were making an attempt to take a 

look at the science and provide as much clarity as we could. 

And we are going to listen to those comments, and we are going 

to make changes in a variety of areas where the comments have 

been very robust and clear, and we will respond to those. We are 

intending to use this rulemaking process in the way we described 

it. We are going to protect what we need to; we are going to leave 

alone what we don’t. 

Mr. DEFAZIO. Former subcommittee Chairman Bishop offered an 

amendment last year which prohibited the rule from going into efVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
18 

fect if it expanded the authority over waters never before covered 

by the act. 

Do you have any problem with that? Would that affect this rule? 

Are you covering waters never before covered? 

Ms. MCCARTHY. We cannot expand the jurisdiction of the Clean 

Water Act. We are simply trying to provide clarity in terms of what 

that is with this rulemaking. 

Mr. DEFAZIO. OK. So if we passed an amendment or statute that 

said that, it wouldn’t affect this rule because you are not expanding 

the authority. 

Ms. MCCARTHY. We are not expanding the authority of the Clean 

Water Act. We cannot do that. 

Mr. DEFAZIO. OK. 

Let’s get back to ditches. To Ms. Darcy, you mentioned roadside 

ditches. All exempt? 

Ms. DARCY. The particular exemptions in the proposed rule relate to upland ditches, which are dry ditches going from dry land 

to dry land. I am going to have to check my notes here as to the 

other specific exemption for ditches. 

However, within the public comment period, we have had a great 

deal of focus on ditches and how do we define those for possible further exclusion. We will be looking at the ‘‘ditches’’ definition in the 

proposed rule as well as those recommendations of clarification 

from the public. 

Mr. DEFAZIO. You mentioned agricultural practices. How about 

a quarry that creates a pool of water within the quarry because as 

you mine down you hit the water table? Is that going to become 

jurisdictional? 

Ms. DARCY. The way you define it, it sounds as though it is an 

isolated—— 

Mr. DEFAZIO. It is groundwater that is bubbling up. It is not 

flowing out. 

Ms. DARCY. We do not regulate groundwater in this rule. 

Mr. DEFAZIO. OK. And even though there is a pond or whatever 

body of water within the quarry that was artificially created, not 

covered. 

Ms. DARCY. Not covered. 

Mr. DEFAZIO. OK. Thank you. 

Thank you, Mr. Chairman. 

Mr. SHUSTER. Thank you, Mr. DeFazio. 

Now, just to give you a heads-up on the lineup so people know 

who is in the queue to ask questions—OK, the Senate just through 

a curve at me. 

First, we are going to go to Senator Barrasso, then Senator 

Whitehouse. Then I am going to take my turn questioning, and 

then Ms. Norton will be fourth. 

So, with that, I recognize Mr. Barrasso for 5 minutes. 

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

Ms. McCarthy, thank you for being here. 

I want to show you a map of the State of Wyoming, my home 

State. And this states it was prepared by INDUS Corporation 

under contract with the U.S. Environmental Protection Agency. 

The map has at the bottom the symbols of the U.S. Geological Survey, the EPA, and the U.S. Forest Service. 

19 

And this map depicts surface-water features in Wyoming, including perennial, intermittent, and ephemeral streams, which are all 

color-coded here. That means that everywhere in this map that 

isn’t white is a potential ‘‘water of the United States,’’ requiring 

communities, requiring ranchers, requiring small-business owners 

to obtain costly permits to do any sorts of activities. 

Now, Wyoming is a High Plains State. It is considered an arid 

State. So I can’t understand how the EPA can determine with this 

map that most of the State of Wyoming is a potential ‘‘water of the 

United States.’’ I can only conclude that the Agency is counting 

Wyoming land covered in snow during the winter. 

In 2014, one of my constituents was threatened with fines of $75,000 a day—$75,000 a day—for building a stock pond that the 

Corps said was somehow connected to a ‘‘water of the United 

States.’’ And under this map, the entire State of Wyoming would 

be subject to threats of fines for even putting a shovel into the 

ground. 

So both Congress and the Supreme Court said that the Federal 

control over water should be limited. This map proves this rule 

would be doing exactly the opposite. 

And that is why I will once again introduce legislation, working 

with Chairman Inhofe, to stop this bureaucratic overreach. So I 

urge my colleagues to once again join me in this effort with this 

legislation impacting the ‘‘waters of the United States.’’ 

Now, Ms. McCarthy, in a March 27, 2014, hearing before the 

House Appropriations Subcommittee on the Interior, Environment, 

and Related Agencies, you told Chairman Rogers that the EPA has, 

quote, ‘‘some mapping in the docket associated with this rule that 

people can access at this point.’’ You went on to say that there had 

been no mapping before and that you had taken the opportunity to 

map water bodies that you felt the Federal Government needed to 

protect. 

Now, can you explain to me why these maps that you obviously 

considered significant were never made available for public comment? 

Ms. MCCARTHY. I am sorry, Senator. I think the maps that you 

are holding up are maps that EPA has worked with both USDA 

and Fisheries to take a look at water bodies across the U.S. They 

were, as far as I know, not used to determine jurisdiction and not 

intended to be used for jurisdiction. They are entirely different, 

with different data sets. They were not used specifically for the 

purpose that we are here to talk about, and they are not relevant 

to the jurisdiction of the ‘‘waters of the U.S.’’ 

Senator BARRASSO. Well, you said there had been—your actual 

quote is there had been no mapping before, there has been no certainty, so we are identifying the rivers and streams and tributaries 

and other bodies that science tells us is really necessary to protect 

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

So I would say, then where are the maps that you are referring 

to? 

Ms. MCCARTHY. Senator, I don’t know what the specific quote 

was referring to. But I do know that those maps were commissioned to have a better understanding of waters across the U.S., 

which I am very happy my water office wants to do. But those were 

20 

not done specifically to inform this rulemaking, as far as I know. 

And I was the decisionmaker on this proposal, and those were not 

called to my attention in any way, shape, or form. And they are not 

consistent with how we look at the jurisdiction of the Clean Water 

Act. 

Senator BARRASSO. So my question is this: If these maps don’t 

show the scope of the waters protected, could your proposed rule 

capture even more than what is on this Wyoming map and other 

State maps? You know, more specifically, is this map, is this a ceiling of what you intend to capture, which would be terrible, or is 

this map a floor of what may be captured? Then this is actually 

catastrophic for people all across the country. What is your—— 

Ms. MCCARTHY. It is neither of those. This proposed rule speaks 

to what characteristics water bodies need to have in order to be jurisdictional. Those are in no way related to the maps that you have 

behind you. 

And, again, we are not expanding the jurisdiction of the Clean 

Water Act. We are not eliminating any exemptions or exclusions 

from the Clean Water Act in this proposal. We are in fact narrowing the jurisdiction of the Clean Water Act, consistent with 

sound science and the law. 

Senator BARRASSO. So if you are not going to use these maps, can 

you commit to me and to this committee that the final rule will 

rely on actual field observations to identify Federal jurisdiction as 

opposed to EPA and the Corps establishing Federal jurisdiction 

over Wyoming’s water from your desks in Washington using some 

other tool? 

Ms. MCCARTHY. This proposed rule actually identifies what we 

believe should be jurisdictional, what we believe should not be jurisdictional, and then, on a case-by-case basis, you make determinations. 

Senator BARRASSO. Thank you, Mr. Chairman. 

Mr. SHUSTER. Thank you, Senator. 

With that, we will go to Senator Whitehouse. 

Hold it a second. Somebody else is—— 

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

Mr. SHUSTER. Hold on 1 second, Mr. Whitehouse. We are operating on your side under Senate rules, so I have to defer to Mr. 

Inhofe. And I believe that since Mr. Cardin is senior, he gets the 

5 minutes now. 

Mr. Cardin? 

Senator WHITEHOUSE. Works for me. 

Senator CARDIN. I think there will be virtually no difference between Senator Whitehouse and my view on the work being done by 

EPA on the ‘‘waters of the U.S.’’ 

So let me first, though, welcome the Administrator and thank 

her very much. 

The Administrator knows my concerns for the Chesapeake Bay. 

All of our stakeholders have been involved in cleaning up the bay. 

The Clean Water Act is a critically important part of everyone 

working together. 

The headwaters are critically important to the efforts, and our 

farmers are making a real effort to help us clean up the bay. Our 

developers are making efforts. Our local governments, private secVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
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tor—all working together in a collaborative way to deal with the 

challenges of the Chesapeake Bay, the largest estuary in our hemisphere. 

The concern is, if we don’t deal with the headwaters, it is a huge 

problem. Now, before the Rapanos decision, I think it was pretty 

clear as to what was regulated waters and what were not. The 

Rapanos decision put that in question. And then there was a desire 

for clarification. 

Congress should have acted. Congress did not. The opponents of 

these rules didn’t really want Congress to act. And now we need 

regulation, and they are saying there is confusion, but they are 

fighting regulation. 

So I just really want to give you a chance to tell us what these 

regulations are all about. Are we trying to do something different 

than we have done in the past? Or are we trying to have clarity 

on waters that affect water qualities in bodies of water such as the 

Chesapeake Bay, that we have sensible definitions for what is included—but it seems to me you have gone to an extreme, to exclude 

those areas that may be of concern. Which, quite frankly, I think 

you probably pulled it back further than we had before the 

Rapanos decision. 

Ms. MCCARTHY. Well, thank you for a few minutes. 

First of all, thank you for your commitment to the Chesapeake 

and other beautiful areas that are so important to us. 

This rule is really about responding to the confusion that has 

arisen over the years. And it is a conversation we have been having, frankly, for decades. 

And what we really need to do with this rule is to clearly explain 

what waters the Clean Water Act was intended to protect. And 

those are waters that are most important to protecting drinking 

water supplies, that are most important to protect us from flood 

damage, that are most important in many different ways for both 

fishing as well as the recreational opportunities that we all enjoy. 

And so we have used the opportunity to spend many years looking at the science, telling us what waters we need to protect, so 

that we can minimize our focus and our resources in areas where 

it is not critically important. 

So this rule is about clarifying what is in, about maintaining the 

examinations, in fact, expanding the exemptions based on what we 

know now on the science, and making it abundantly clear so that 

people can go about their business with more clarity and more certainty. 

We won’t have to spend the resources. Stakeholders won’t have 

to spend the resources. But, frankly, this is all about the science. 

They told us, the Supreme Court told us, get the science right. And 

we are doing that with this rulemaking. 

Clearly, there is work to do between proposal and final. We are 

up to this task. And one of the reasons to do this with a rulemaking instead of guidance is to gather the information we need 

to get it right. And we will. 

Senator CARDIN. You have given some clarity, some detail in the 

regulation. As you pointed out, it is open for comment right 

now—— 

Ms. MCCARTHY. It is. 

22 

Senator CARDIN [continuing]. So people who have concerns can 

express those concerns. 

And in our conversations with EPA, we have seen a willingness 

to make sure that is a very open process. You want to be judged 

by the best science, but you want to make sure you get it right. 

Now, you have given a lot of detail. So if people have questions 

about the details, it is up to them now to comment, is it not? Isn’t 

this an open process? 

Ms. MCCARTHY. It is. And if you look at the comments, you 

know, nobody is going to say, I think you got it all right or all 

wrong. They are very good, substantive comments. 

And so when we raised issues of did we get the definition of 

‘‘tributary’’ right, did we narrow it appropriately—we looked at how 

do you define ‘‘adjacent waters.’’ We set up ideas for how to do that. 

We solicited comments on alternatives. We tried to narrow where 

the uncertainty was, limit the amount of case-by-case analysis that 

would need to be done. And we teed up these issues specifically to 

get these comments. 

We have had over 400 meetings, met with 2,500 people, had a 

local government advisory committee going across the U.S. We are 

doing what we need to get this right. 

Senator CARDIN. I will just make one final comment, if I could, 

and that is, there needs to be action. 

Ms. MCCARTHY. Yes. 

Senator CARDIN. If Congress wants to pass a law, fine. If not, we 

need to have regulation on clarity. That was very clear from the 

Supreme Court decision. And I thank you very much for carrying 

out the responsibility that you have by proposing these regulations. 

Ms. MCCARTHY. Thank you, Senator. 

Mr. SHUSTER. Thank you, Senator. 

Now I will recognize myself for 5 minutes for questions. 

First, Administrator McCarthy, did you say on that map that 

Senator Barrasso put forth that you weren’t aware of that map? 

Ms. MCCARTHY. No, not specifically. I was made aware of it after 

last summer. 

Mr. SHUSTER. OK. Well, that is a huge concern of mine, that the 

Administrator—and it is not just the EPA; it is all these departments across the Federal Government. The political appointees 

don’t get the real information from folks down below. When these 

laws come out, they are significantly changed and interpreted in a 

different way. 

And, you know, my good friend talked about the mythical rule. 

Well, but history shows us that it is mythical to have a view that 

the EPA or the Corps is not going to interpret these things in a 

much different way as we go down the road. So that is the huge 

concern we have here today. There is a lot of uncertainty for all 

of us. 

Ms. MCCARTHY. Well, Mr. Chairman, I—— 

Mr. SHUSTER. Well, let me finish. 

Ms. MCCARTHY. Oh, I am sorry. I apologize. 

Mr. SHUSTER. My good friend from California, she had a list. 

Well, I want to give you my list, and it is 34 States: Colorado, 

Georgia, Maine, Michigan, Missouri, Montana, New York, Ohio, 

South Carolina, Tennessee, Wisconsin, Wyoming, Arkansas, AlaVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
23 

bama, Arizona, Iowa, Indiana, Pennsylvania, on and on. There are 

34 States that oppose and want this revised or oppose and withdraw. That is a real list of people that have to deal with these, and 

that brings us to why we are here today. 

And the question is, why haven’t we included the States in this? 

And why do we have 34 States, two-thirds of the States, saying, revise or withdraw? They oppose with a revise or oppose and withdraw. Can you answer that question? 

Ms. MCCARTHY. Mr.—— 

Mr. SHUSTER. About the States. 

Ms. MCCARTHY. Mr. Chairman, the States have been very actively involved in this and other issues. In fact, the States wrote 

to us and said, stop using guidance, get to a rulemaking process. 

The only thing I am asking this joint committee is to take a look 

at how we are going—have we proposed this, the robust outreach. 

The comments we have received, you say two out of three don’t like 

everything? Two out of three gave us robust comments that will inform the final. 

Mr. SHUSTER. I have—— 

Ms. MCCARTHY. This is a partnership with the States that we 

are going to maintain. 

Mr. SHUSTER. Two out of three want this—they oppose this with 

significant revisions, and almost half the States, 22, say they want 

you to withdraw it. 

Ms. MCCARTHY. It depends on who you are talking to, Mr. Chairman. 

Mr. SHUSTER. I don’t believe you are consulting, and the States 

aren’t full partners in this, in this rulemaking. And it is based 

upon what they are telling us. 

Also—it was mentioned in Mr. Gibbs’ questioning—I wanted to 

know if both of you would commit to explicitly stating in the rule 

that erosional and ephemeral features on farm fields are exempt 

from the regulation. Are you willing to put that in the regulation? 

Ms. MCCARTHY. We have actually made a very good attempt to 

identify those erosional features, not—— 

Mr. SHUSTER. That doesn’t sound—— 

Ms. MCCARTHY. No, no—— 

Mr. SHUSTER. That sounds to me like—— 

Ms. MCCARTHY. We have maintained the exemption, and we are 

trying to explain it more so that people will have more certainty. 

Mr. SHUSTER. That sounds to me like that an ‘‘attempt,’’ you are 

‘‘trying’’ to—when the rule goes in and it is that vague, as it trickles down to the middle management of the EPA or the Corps, over 

the years, this is where the reach is going to come from. This is 

what the farmers, this is what the developers, this is what people 

that do things around this country, this is what they are concerned 

about. And this rule I do not think makes it clear. 

Another question. 

Ms. MCCARTHY. Mr. Chairman, we will clarify—— 

Mr. SHUSTER. Let me ask one other question. I will let you answer after—— 

Ms. MCCARTHY. Yeah. 

Mr. SHUSTER. You can answer any way you want to. 

Ms. MCCARTHY. OK. 

24 

Mr. SHUSTER. Are we defining navigable waterways as tributaries? We are going from navigable to tributaries; that is sort of 

what my understanding is of the rule. 

Ms. MCCARTHY. OK. 

Mr. SHUSTER. Is that actual? 

Ms. MCCARTHY. Actually, we are helping to apply the Supreme 

Court’s understanding that navigable waters include tributaries. 

Mr. SHUSTER. OK. So water, doesn’t it eventually, maybe it takes 

years and years, but doesn’t it eventually seep into bigger bodies 

of water that are navigable under today’s definition? 

Ms. MCCARTHY. I think that is the challenge, is for us to recognize what tributaries are significant contributors enough that they 

can impact navigable waters. 

Mr. SHUSTER. So you would say that in a farm field that was 

shown earlier, there is water laying there; eventually, 2 years, 10 

years, 20 years, it eventually seeps into navigable waters. Is that 

true or not? I am not a scientist, so I am asking the question. 

Ms. MCCARTHY. The science establishes connections, but it is on 

a gradient. And what the Supreme Court made clear to us and 

what this rule attempts to do is to identify only those that could 

significantly impact the physical, chemical, and biological integrity 

of downstream waters. So just because you are connected, it does 

not mean you are jurisdictional. 

Mr. SHUSTER. But it could mean it does. 

Ms. MCCARTHY. If that connection is significant for drinking 

water protection—— 

Mr. SHUSTER. That is the basis why I believe these 34 States are 

opposing this rule. That is why my colleagues believe—and what 

Mr. Cardin said. I think it is time for Congress to act. I think it 

is time for us to come forth and help to clarify the rule, because 

there is no doubt it needs to be clarified. 

And I do not believe that this rule is going to clarify it. It is 

going to make it vague. And I would predict, if this rule goes into 

effect, 5, 10 years down the road, it will cost working and middleclass Americans more to buy homes, more to buy food, because of 

the EPA and the Corps and the regulations that they are putting 

out there, making it far more difficult for them to do their work. 

Ms. MCCARTHY. Mr. Chairman, I am sorry that I interrupted you 

earlier. I just—— 

Mr. SHUSTER. That is all right. 

Ms. MCCARTHY [continuing]. Wanted to let you know that I understand this confusion between tributaries and erosional features. 

We are going to tackle that confusion head-on. 

Mr. SHUSTER. I appreciate it. And I am sorry I got exercised, but 

this rule is of great, great concern to me, my constituents—— 

Ms. MCCARTHY. I appreciate that. 

Mr. SHUSTER [continuing]. And 34 other States. 

Ms. MCCARTHY. I appreciate that. 

Mr. SHUSTER. So, with that, I recognize Ms. Norton for 5 minutes. 

Ms. NORTON. Thank you, Mr. Chairman. 

And I do want to say you, Administrator McCarthy and Assistant 

Secretary Darcy, in less than an hour of testimony, you have already exploded some of the major myths surrounding the rule. 

25 

And I want to say that we already know that our roads and our 

transit and our underwater infrastructure and our ports are falling 

apart. Congress is letting it happen as we speak. Please spare us 

our clean water. 

Mr. Chairman, I want to ask that a letter from the Department 

of the Environment of the District of Columbia be included in the 

record. 

Mr. Chairman? I ask that a—— 

Mr. SHUSTER. I am sorry about that. 

With unanimous consent, so ordered. 

Ms. NORTON. Thank you. 

[The information is on pages 371–373.] 

Ms. NORTON. I have a question that is fairly representative, I 

think, of urban jurisdictions around the country. 

Administrator McCarthy, as you know, because we appreciate 

that you came out to the District of Columbia to tour our own efforts to revise our stormwater overflow system, these systems 

around the United States are often a century or more old, and they 

are being remodeled, I must say, with almost no Federal help. 

Now, these rules are being criticized both for being too vague and 

too broad. For myself, I think rules ought to have some breadth, 

particularly in this area where we are dealing with the waters of 

the United States of America in the most diverse landmass in the 

world. 

So this is my question, and I apologize because it is particular. 

I am trying to find out whether the kind of work we are doing and 

is being done all over the United States with stormwater overflow, 

under the rule, would include piped sections of streams in the definition of ‘‘tributary.’’ 

As you know, many of these pipes run under tributaries, and if 

they are required to go through the permitting process for municipal stormwater, then, of course, there would be considerable delay 

and considerable cost. 

My question really goes to clarification. I think the way the rule 

is structured I don’t have any criticism of, but I want to clarify 

whether or not such underwater, don’t-see-the-daylight streams, 

pipes under streams, would need to be permitted. 

Ms. MCCARTHY. Thank you. And I am actually glad you raise the 

issue because there has been some confusion about this. 

And let me be very clear that EPA has not intended to capture 

features as you described them that have already been captured in 

what we call MS4 permits, which was part of, I think, what you 

and many other urban areas are concerned about. It is our intent 

to continue to encourage and to respect those decisions and to also 

encourage water reuse and recycling, which very much is consistent with the Clean Water Act and our overall intent. 

I would also mention green infrastructure. It was never our intent to—— 

Ms. NORTON. So does that mean that the projects to repair these 

under water would be subject to—— 

Ms. MCCARTHY. No. It means they would not. 

Ms. NORTON [continuing]. To permitting? 

Ms. MCCARTHY. It means we are trying to make very clear in the 

final rule, working with these urban areas that have these issues, 

26 

what features that are involved in the capture of stormwater in 

urban areas, what features would be specifically not jurisdictional 

under the Clean Water Act, because people are concerned that it 

doesn’t have the specific clarity. 

We will build that in. They will not be jurisdictional. And we will 

be outlining those with much more specificity just to avoid any additional concerns. 

Ms. NORTON. Thank you for that clarification. 

I yield back, Mr. Chairman. 

Mr. SHUSTER. I thank the gentlelady. 

And, with that, I now recognize Senator Crapo for 5 minutes for 

questioning. 

And just a heads-up, Mr. Whitehouse. I assume you will be next, 

as long as no Senator more senior to you comes in, so stay on your 

toes. 

Senator WHITEHOUSE. Stand by. 

Senator CRAPO. Thank you much, Mr. Chairman. 

And, Administrator McCarthy, welcome here to the hearing. I appreciate your being here and our conversations that we have had 

privately about this regulation. 

As you know, I am one of those who is very, very concerned 

about the regulation. And the concern I have is that, as we have 

gone through now several Supreme Court cases trying to provide 

some clarity on what the actual jurisdiction of the Agency is over 

the Clean Water Act, it has become clear that the word ‘‘navigable’’ 

is in the statute and that the courts intend to insist that that be 

the definition and the nexus of what we are trying to deal with 

here. 

It seems to me that where the Agency is headed in interpreting 

what the Supreme Court has required, however, is beyond what I 

read as the Court’s approach. 

And what I am asking you is this. In the case in which—excuse 

me. In the Rapanos case, the four-Justice plurality held that, to be 

subject to the Clean Water Act, water must be relatively permanent surface water. There was a concurring opinion by Justice Kennedy that said that water must have a significant nexus. And then 

there were four Justices who dissented, who would have applied a 

broader jurisdiction based on intertwined ecosystems. 

Am I correct about that legal analysis? 

Ms. MCCARTHY. I hate to play lawyer, especially here, but I understand the point you are making, and it is very challenging. 

Senator CRAPO. I think that is a fair general explanation of 

where we were. 

And, as I see it, where the Agency is heading right now is to 

identify significant connections between intertwined ecosystems, in 

essence. And if that is the case, then it appears that the Agency 

has flipped the Supreme Court case and is essentially pursuing the 

rationale of the minority and the dissenting opinions. 

And I would just like you to comment on that. 

Ms. MCCARTHY. Well, let me be clear what our intent was, and 

hopefully that intent is reflected in the proposal. 

We are trying to be very clear. And I think the one thing that 

everybody did agree to on the Supreme Court was that the definition of ‘‘navigable’’ is not the traditional one, and so we had to do 

27 

a better science job at defining the connections between these upstreams and downstreams that would have a significant—potentially a significant impact on navigable waters. 

So we tried really hard to basically use the science to further define what we knew, based on science, would be the types of waters 

that would be in. We tried to make sure that we proposed additional exemptions or exceptions where we could based on science. 

And then the third area was where we were looking at what are 

the other waters. 

But you are absolutely right that the challenge for us is to look 

at individual tributaries and adjacent waters but, also, to look at 

where we may have systems that, because of their geography and 

function, may work as a system. 

So it is challenging, but we tried not to make assumptions there, 

as opposed to propose a number of alternative ways to try to narrow this case-by-case resource—— 

Senator CRAPO. Well, let’s take a—because we have run out of 

time very quickly in this, let’s take a specific example. 

Ms. MCCARTHY. Yeah. 

Senator CRAPO. Evaporation. If water can evaporate from a relatively arid area after a rainstorm and by evaporating and going 

into the clouds and then ultimately raining on a navigable water 

or an ocean, does that mean that the water is navigable? 

Ms. MCCARTHY. It has to have a connection to downstream that 

is certainly more than evaporation. It has to be a significant connection where that water supply or that water body, wetland, or 

system would be able to significantly impact and degrade the 

downstream waters. 

Senator CRAPO. But I guess the question is, is evaporation significant? 

Ms. MCCARTHY. No. No, sir. 

Senator CRAPO. Would the Agency conclude that the evaporated 

water that went—— 

Ms. MCCARTHY. No, sir. 

Senator CRAPO [continuing]. That could have rained on a navigable water was significant? 

Ms. MCCARTHY. No, sir. 

Senator CRAPO. So you are saying that would not be a jurisdictional claim under the rule. 

Ms. MCCARTHY. No, sir. It would not. And we tried to make this 

very clear, specifically for ditches. We tried to make this very clear, 

but we know there is additional work that needs to be done. 

Senator CRAPO. Well, what about—let’s go to the—well, not the 

reverse, but another example. What about water that seeps into 

the groundwater from a ditch or from a puddle or a rainstorm and 

then, eventually, over time, moves through the groundwater and 

ends up in a navigable river? Is that going to be a jurisdictionally 

claimed significant connection or nexus? 

Ms. MCCARTHY. Well, groundwater is not regulated under the 

Clean Water Act, but it can be a—establish a connection between 

upstream and downstream. It can be. 

Senator CRAPO. So I am hearing you say, yes, it could be. 

Ms. MCCARTHY. Well, there are conditions that you need to look 

at, sir. But, again, it doesn’t need to just be connected; it needs to 

28 

be a really significant connection sufficient to warrant Federal jurisdiction. 

Senator CRAPO. I see my time is up. 

Mr. SHUSTER. I thank the gentleman. 

And we have Senator Whitehouse, 5 minutes. 

Senator WHITEHOUSE. Thank you very much, Chairman. 

It is kind of interesting, we seem to have two hearings going on 

here, one on a mythical rule that would regulate any place where 

water collects or most any water or any wet place and doesn’t consult with States and local officials, and then this actual rule, which 

is in the middle of a very robust Administrative Procedure Act 

process with millions of comments and a very active role taken by 

the States. 

With respect to the latter hearing on the actual rule, I would like 

to ask unanimous consent that a letter from Rhode Island’s Trout 

Unlimited, along with the Massachusetts Trout Unlimited, and a 

letter from Rhode Island Attorney General Peter Kilmartin, along 

with several other attorneys general, in favor of the actual proposed rule be entered into the record. 

Mr. SHUSTER. Without objection, so ordered. 

Senator WHITEHOUSE. Thank you. 

[The information is on pages 374–378.] 

Senator WHITEHOUSE. Ms. McCarthy, in Rhode Island, as you 

know, we take the health of Narragansett Bay very, very seriously. 

And, as you know, we have spent an enormous amount of effort 

and money to protect Narragansett Bay, specifically through the 

combined sewer overflow project, which is the biggest public works 

project in Rhode Island’s history, all to protect the bay. As a result, 

our current threats to the bay primarily come from nonpoint 

sources. 

How frequent a problem around the country are nonpoint sources 

at contributing to water pollution? 

Ms. MCCARTHY. Well, point-source pollution—we have, I think, 

done a good job at regulating point-source pollution. Then, by comparison, it continues to be one of the more challenging issues. 

Senator WHITEHOUSE. And return flows from irrigated agriculture, for instance, would qualify as a nonpoint source. 

Ms. MCCARTHY. Return flows from irrigation would actually be 

exempt under the Clean Water Act. 

Senator WHITEHOUSE. Well, that is precisely my point. 

Return flows from irrigated agriculture could well contain fertilizer, pesticides, chemicals, manure, all of the above? 

Ms. MCCARTHY. It could, sir, but it is not regulated under the 

Clean Water Act today, and it wouldn’t be under the proposal. 

And one of the good things about working with the agriculture 

community is I recognize that they are taking great efforts to both 

conserve land where it can help as a filter for those pollutants, but 

they are also looking at erosional features. Because it is essential 

to not have runoff for a couple of reasons, not just because it 

spreads pollution potentially, but it is also important to keep soil 

on the land enriched. 

And so there are many efforts that are underway with USDA 

and EPA to enrich that relationship and partnership and to recognize that. 

29 

Senator WHITEHOUSE. But it is clear and it is a matter of record 

that this rule would allow pesticides, fertilizers, manure, and other 

types of runoff to come off of return flows from irrigated agriculture, to flow through ditches that have less than perennial flow, 

and to allow leakage from settling basins all to go into our waters. 

Ms. MCCARTHY. The Clean Water Act exempts stormwater from 

agriculture from regulation. 

Senator WHITEHOUSE. Irrespective of whether it is carrying pesticides and other fertilizers, manure and other contaminates. 

Ms. MCCARTHY. There is. But, as I indicate, I think there are 

many programs that seek to make sure that those issues are resolved in a collaborative way with the agriculture community, and 

I am confident we can expand those partnerships. 

Senator WHITEHOUSE. Yeah. I just want to make the point that 

no rule is perfect. 

Ms. MCCARTHY. Yeah. 

Senator WHITEHOUSE. And there are arguments, frankly, on both 

sides. And for those of us who have vital bays—Chesapeake Bay is 

another one that Senator Cardin just talked about—where the 

greatest vulnerability is nonpoint-source pollution, then the failure 

of this proposal to deal with that will have environmental consequences. 

Which isn’t to say that I am going to oppose it, because I think 

the perfect doesn’t necessarily always have to be the enemy of the 

good. But hearing the criticism about the extent of the regulation, 

at least when not imaginary, causes me to raise the concerns on 

the other side, that this will allow a significant amount of contamination to flow into waters that we would otherwise want to see protected. 

And, with that, I will yield back my time. 

Mr. SHUSTER. I thank the Senator. 

And, with that, the next three up, just to give you a heads-up, 

we will go next to Mr. Hanna, then Ms. Johnson will be after that, 

then Senator Capito after that. 

So I recognize Mr. Hanna for 5 minutes. 

Mr. HANNA. Thank you, Chairman. 

And thank you both for being here. 

It strikes me this conversation is not really about clean water. 

It is absurd to suggest that anybody here or in this country isn’t 

interested in that. And the 36,000 farms that are in New York certainly are vested in that, and I have complete confidence in the 

New York State DEC. 

For me, when you talk about this and you say to us we have 

nothing to worry about and it is based on science, I think the fundamental concern is, what do you mean by ‘‘science’’? And the subjective nature and the kind of flow of this conversation is more 

around the fact that people don’t believe it, that people are uncomfortable with whatever outcome you might produce, because, frankly, no one trusts big agencies and big government. And where I 

live, we don’t need—you know, the theme would be, we don’t need 

you. 

So how do you separate that distrust, moving forward, to come 

up with a rule that is based on science, knowing the subjective nature and the suspicion that, with all due respect, because we are 

30 

all—and Mr. DeFazio did a great job of laying out the concerns 

that people have. They are legitimate, they are real. 

And the pushback you feel is not a function of people who aren’t 

interested in having a great outcome. It is a function of people not 

trusting the process, not trusting the rule, not being comfortable. 

It is a huge credibility gap that I am concerned that, no matter 

what you do, you can’t get through that. And yet I would like to 

believe that the outcome will be in the direction that you want it 

to go. 

But, saying that, I am perfectly comfortable with New York State 

and what we have going on now. 

With that, I would just give you a chance to speak to that. 

Ms. MCCARTHY. Well, let me just say that, first of all, I really 

appreciate your raising this issue, because you are not wrong. I 

think we have a communication challenge. 

We did a very good job on the science. And it wasn’t us; it is scientists all over the country and, frankly, the world who have 

looked at this issue. But the current situation is, at least as we 

have been told by all of the stakeholders and the States, untenable. 

Because it takes too long, it costs too much money, there is no predictability, there is inconsistency across the U.S., and, as a result, 

we are overprotecting in some areas and under in others. 

And so we are trying very hard to bring certainty to make the 

situation better. And you are not wrong that we have received a 

lot of comments that said we didn’t get it right, and they are really 

concerned about whether we are going to listen to those comments. 

And what I would ask you is to look at the history of EPA in 

terms of how we are listened—we listen to comments that have 

come in. This is a robust dialogue with the States. This is not just 

criticism; it is dialogue back and forth. And the proof will be in the 

pudding, which is, does the final rule clarify this? That is how rulemaking works. I want to get to that. 

Mr. HANNA. I couldn’t agree with you more. The difficulty is people don’t trust the Agency. People don’t believe what—generally, 

they are concerned. The 36,000 farmers in New York, in my district, they are in somewhat of a panic. Now, you could say to me, 

there is a lot of misinformation, wrong information. So what you 

said is true; the proof is in the pudding. 

I am deeply concerned that we—the notion of Government overreach and the Federal Government impugning all this on a State 

like New York that does a great job is not only not helpful but not 

necessary and adds a degree of additional burden that people are 

going to always reject. And I don’t blame them. 

Ms. MCCARTHY. Congressman, I just don’t want to overstate 

our—leave the impression that we have not received tremendous 

support for this rule. Because I don’t think—I think that is correct. 

We have received both tremendous support and comments that 

question whether or not we got it right. But you have to remember 

that folks like the Association of State Wetland Managers have actually written in support of the rule. They are trying to make it 

better. 

What should be untenable to this body is leaving the uncertainty 

on the table today that is costing everybody time and money. 

31 

Mr. HANNA. I think some of the absurd things that we have seen, 

like we saw on the photograph, you really have to push back on 

that, if you can. And if it is real, I think that also has to be addressed. 

But thank you very much for being here. 

Ms. MCCARTHY. Thank you, sir. 

Mr. SHUSTER. I thank the gentleman. 

Mr. HANNA. I yield back. 

Mr. SHUSTER. And, with that, we go to Ms. Johnson, 5 minutes 

of questions. 

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

and Chairman Inhofe and Ranking Members Boxer and DeFazio. 

In my home State of Texas, the EPA estimates that upward of 

11.5 million Texans receive some of their drinking water from some 

of the small streams and wetlands that could be protected by the 

proposed rule. 

This is important to all of our communities, and that is why I 

would ask unanimous consent to enter into the record a letter from 

25 State elected and local elected officials and another letter from 

25 NGOs in support of the rule. 

Mr. SHUSTER. I am sorry. What—— 

Ms. JOHNSON. I ask unanimous consent—— 

Mr. SHUSTER. Without objection, so ordered. 

Ms. JOHNSON. Thank you. 

[The information is on pages 379–385.] 

Ms. JOHNSON. Administrator McCarthy, your agency has been 

criticized on the science used to support the agencies’ rulemaking, 

including the science behind protecting clean water in this proposed rule. 

However, last month, the EPA’s Office of Research and Development completed the ‘‘Connectivity of Streams and Wetlands to 

Downstream Waters’’ report, which noted that the scientific literature unequivocally demonstrates that streams, regardless of 

their size or frequency of flow, are connected to downstream waters 

and strongly influence their function. 

Mr. Chairman, I would like to ask unanimous consent again to 

make a summary of this report available to the record. 

Mr. SHUSTER. Without objection, so ordered. 

Ms. JOHNSON. Thank you. 

[The information is on pages 386–403.] 

Ms. JOHNSON. And, in addition, EPA solicited input from EPA’s 

Science Advisory Board, the SAB, on this report before it was finalized, and the SAB completed its review of the Agency’s draft report 

in October of 2014. 

Again, Mr. Chairman, I ask unanimous consent to include a letter from the SAB to EPA that outlines the board’s recommendations and advise that—in this hearing record. 

Mr. SHUSTER. Without objection, so ordered. 

Ms. JOHNSON. Thank you. 

[The information is on pages 404–406.] 

Ms. JOHNSON. I would like to read, Ms. McCarthy, some excerpts 

from these documents and ask for your comments. 

First, in commenting on the connectivity report, the SAB finds 

that the review and synthesis of the literature described in 

32 

‘‘Connectivity of Streams and Wetlands to Downstream Waters’’ reflects the pertinent literature and is well-grounded in current 

science. 

In addition, the connectivity report notes that the scientific literature strongly supports the conclusion that incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream water should be 

evaluated within the context of other streams and wetlands in the 

watershed. 

Now, Ms. McCarthy, I am not a scientist, but it appears that the 

scientific literature supports the broad protection of rivers and 

streams as a necessity to protect the downstream water quality 

and quantity, as well as a host of other benefits, such as flood control, aquifer protection, and habitat protection. 

Can you comment on the connectivity report and whether this 

science supports what your agencies are proposing as part of this 

clean water protection rule? 

And then, secondly, are there areas where the Science Advisory 

Board review of this report urged the Agency to change the report 

to reflect the best available scientific information on protection of 

clean water? 

Ms. MCCARTHY. Thank you for raising the question. 

As I indicated in some of my opening statements and beyond, I 

am very proud of the work that the Agency did to develop the 

science that the Supreme Court asked us to look at so that we 

could have a more certain and secure way of determining what waters were jurisdictional and necessary to protect. 

Our Office of Research and Development looked at 1,200-plus 

peer-reviewed scientific literature. They also conducted their own 

peer-reviewed process. It was also peer-reviewed by our Science Advisory Board. I think the science is very strong. 

The real question is, how well have we reflected the science in 

the rule itself? And I think the Science Advisory Board was very 

supportive of what we did, but we need to make sure that we look 

at comments and know all of the nuances that are in the outside 

world and we are cognizant of those as we draft the final report. 

Ms. JOHNSON. Thank you very much. 

I think my time has expired. 

Mr. SHUSTER. I thank the gentlelady. 

It is now my pleasure—I didn’t know I would get to do this this 

soon—to recognize my former colleague, the Senator from West Virginia, Mrs. Capito, for 5 minutes. 

Senator CAPITO. Thank you, Mr. Chairman. 

And thank you all for being with us here today. 

Administrator McCarthy, first of all, I would like to say, living 

in the Kanawha Valley in Charleston, West Virginia, we suffered, 

a year ago, a catastrophe in our drinking water. And I know you 

are well aware of it. I would like to thank the EPA’s help in trying 

to mitigate that disaster. 

But I would caution all my colleagues here, don’t take your clean 

drinking water for granted. I know we don’t. But it has a lot more 

ramifications than just putting the tap on and being able to have 

a nice glass of water. 

So thank you for that. 

33 

One of the more alarming provisions, I think, that I am concerned about in the State of West Virginia is the authority over 

lands that are wet only—and I have heard some of the conversation before—when it rains, called ephemeral streams. 

My concern is that ‘‘ephemeral’’ appears over 75 times in your 

preamble to the proposed rule, yet it is not clearly defined. And it 

says it is a stream—and your connectivity report defines ‘‘ephemeral stream’’ as a stream or river that flows briefly in direct response to precipitation. 

Well, I have a map that the EPA created, and it is a high-resolution map of the streams of West Virginia. Here it is. You really 

can’t see it too well, but it is the green and the blue. It is basically 

covering the entire State, which is designated streams and waters. 

So, in West Virginia, we have a lot of land, as you know, that 

is not flat, so when it rains the water runs downhill. We have more 

real streams per square mile than any other State, which I think 

a lot of the larger States would find remarkable. 

But this map, that is almost totally covered in color that was 

done by the EPA to show water, does not even cover any of the 

ephemeral drainages. And if you bring these so-called ephemeral 

waters into the rule—and I noticed in your statements that you are 

going to try to exempt that—I think it really brings a lot of confusion and uncertainty. 

And so, I guess, this is unacceptable in a State like West Virginia. You can’t let the whim of a particular Corps or EPA employee decide which private property is now federally regulated. 

I have another picture of a gully here. I call it a West Virginia 

gully, but is it a West Virginia gully or is it an ephemeral stream? 

We have yet to figure that out, and how can you tell? 

So I guess I would ask from you a commitment, a solid commitment, that the final rule will not take control over these ephemeral 

streams that are ill-defined and, for a State like ours, could have 

great impact. 

Ms. MCCARTHY. I just dropped my pen. Sorry. 

First of all, thank you, Senator, for the thank you. And my heart 

goes out to West Virginia, and it did during the spill and beyond. 

So thank you for working with us on that, and I was happy to be 

able to help. 

On the ephemeral-stream question, I think people may not be 

aware, but ephemeral streams are often found to be jurisdictional 

today. And so the intent of this rule was to try to provide much 

more certainty on the basis of the science so that we could be clearer about what streams are important to protect and what were not 

as important and wouldn’t have a significant impact on those 

downstream waters that we are seeking to protect. 

You have my absolute word that we are going to try to narrow 

what we are claiming jurisdiction over so that we are consistent 

with the law and the science and we are as clear as possible about 

what is in and what is out. 

Senator CAPITO. Well, I think that is going to be a bureaucratic 

nightmare for you and, thus, a bureaucratic nightmare for anybody 

who is trying to get a definition. Because, as you know, there are 

millions of these all throughout probably our State and across the 

country. And it is exceedingly important. 

34 

Ms. MCCARTHY. I think—— 

Senator CAPITO. The other question, if I could ask one more 

question real quickly, much of our manufacturing is small and medium-sized. 

Ms. MCCARTHY. Yeah. 

Senator CAPITO. You know, the last thing a small or mediumsized manufacturer or business needs to get caught up in is a bureaucratic maze of, am I registered, am I not? How are you going 

to mitigate that? 

And I would sort of echo what one of my colleagues said. The 

trust factor here with your agency is not as good in our State as 

I am sure we would all like it to be. And that is a real question 

I have from my employers in the State. 

Ms. MCCARTHY. Well, we have done an extensive amount of outreach to the small-business community, and we feel obligated and, 

actually, honored to be able to spend a lot of time with them. 

There are a lot of small businesses that have written in in support of this rule for the very reason you are talking about, is they 

rely on clean water, and sometimes their voice isn’t as loudly 

heard. So we have brought them into the system. We have some 

great comments, and we will resolve these issues and make this 

more certainty. 

Because the last thing a small business needs to do is ask questions about their obligation when we could have spoken more clearly in the rule to tell them what their obligation was. I don’t want 

to waste their time and money, nor ours and others’, and I think 

we can do a better job. 

It is a difficult process, but we will work with the small-business 

community, and we will make sure that we eliminate confusion as 

best we can. 

Senator CAPITO. Thank you. 

Mr. SHUSTER. I just want to point out that the question was 

asked before about these ephemeral features, and you still haven’t 

declared that you will exempt them. I don’t know how we are going 

to make it more consistent and put certainty out there if you are 

not willing to do those types of things. 

Second question, just a quick—were you aware of that map of 

West Virginia and all the color that was there? It appears as 

though the entire State of West Virginia—— 

Ms. MCCARTHY. It was hard for me see, but, again, Senator, 

we—I mean, Congressman, we have not—— 

Mr. SHUSTER. No, don’t do that. 

Ms. MCCARTHY. Chairman. 

Mr. SHUSTER. They will get upset if you—— 

Ms. MCCARTHY. Chairman. Chairman. How about if I say ‘‘chairman’’? 

Mr. SHUSTER. People on both sides of the Capitol will get upset 

if you call me a Senator. 

Ms. MCCARTHY. Yeah, yeah. I will get in deep trouble. 

Again, if that is a map similar to the one that Senator Barrasso 

raised, that has nothing to do, as far as I know, with any decision 

concerning jurisdiction of the Clean Water Act. 

Mr. SHUSTER. That answer really concerns me, but we will go on 

to Mr. Webster for 5 minutes. 

35 

Mr. WEBSTER. Thank you, Mr. Chair. 

And thank you all for appearing today. I am over here on your 

left. 

Ms. MCCARTHY. Oh, thank you. 

Mr. WEBSTER. Hi. 

And I am from Florida. Florida is basically a wetland. If you dig 

down about a foot and a half just about anywhere you are, it is a 

wetland. And so you can have these maps, but our map may be the 

entire State, in some cases, if we thought about it. 

I serve three counties. One of those is named Lake County. It 

has thousands of lakes. They are all interconnected with all kinds 

of canals and other things that could be above water, above the 

surface, could be below. And, again, because of the aquifer being 

so close to the top of the ground level, a lot of the flows happen 

there. 

So I think the big concern that I am hearing, especially from our 

agriculture community, is maybe some nondefinitive words. And 

those words mean a lot. 

So I was looking at the economic analysis, which, in there, in 

several places, it says that the agencies project that the proposed 

action to change the definition of ‘‘waters of the U.S.’’ would increase assertion of the CWA. So the jurisdiction is going to increase. I mean, you have said that several times in this report that 

was done jointly by the EPA and the Army Corps. 

But inside that, these words were what disturbs most of the people in my area that have contacted me, and that is it says that it 

is not—these things, these examples of these cost estimates and so 

forth are not definitive but merely illustrative. 

The fear is this. The fear is that maybe the data is incomplete 

because the scope is not fully determined within this proposal, in 

that the scope could increase just on a whim. And I think that is 

the fear of these words that are used, especially the one that just 

says ‘‘merely illustrative.’’ That is a scary statement, as opposed to 

something definitive. 

Ms. MCCARTHY. Let me try to explain it, because I totally appreciate the fact that you are right, words do matter, and explaining 

this better will be hopefully what we are able to do. 

First of all, relative to the idea that the economic analysis indicates that we are going to get more water into the system of Federal regulation, it doesn’t change the jurisdiction of the Clean 

Water Act. And, in fact, what we have tried to do is narrow the 

applicability here based on sound science. 

But the most important thing to remember is that we wouldn’t 

be here if there weren’t confusion about what is in and what is out. 

And when we took a look at in practice what is happening, we believe that this will clarify it, and some of the waters that are essential to protect for drinking water and other resources will end up 

being better protected. 

The word ‘‘illustrative’’ is the one I want to explain most, is this 

is a jurisdictional rule, and because it is a jurisdictional rule, it 

doesn’t have a direct and immediate impact where we can estimate 

the economics, for example, like other kinds of rules that directly 

impact industry and set standards. 

36 

So the reason why we say it is illustrative is that it is all about 

whether or not somebody wants to pollute or destroy a wetland, 

and, if you do, there are costs associated with that. But what we 

are trying to do is reduce the cost and time to ask the question 

about what is jurisdictional so, if you actually do want to pollute 

or destroy a wetland, you have a better idea of what needs a permit, what doesn’t, and how go about getting that defined. 

Mr. WEBSTER. OK. Well, and I appreciate that answer. All I will 

tell you is ‘‘merely illustrative’’ is not as good as definitive. And if 

that can change, I would very much appreciate it, because there 

are just fears out there when you see words like that. 

Thank you very much. I yield back. 

Mr. SHUSTER. I thank the gentleman. 

With that, I recognize Mr. Cummings for 5 minutes of questioning. 

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

Ladies, it is very good to see both of you. 

And, Administrator McCarthy, it was good to be at EPA a few 

weeks ago. I want to thank all of your employees for what they do 

every day and both of your employees for trying to make our environment safer and cleaner. 

Let me begin by saying that one of my highest priorities is supporting the restoration of the Chesapeake Bay. Restoration of the 

bay has been and will continue to be a long-term project. 

Furthermore, our work is made easier because we know what is 

harming the bay. The Chesapeake Bay is one of if not the most 

studied water bodies in the world. We understand in great detail 

how nitrogen, phosphorous, and sediments enter the bay from runoff that flows across impervious surfaces through eroding urban 

streams and aging storm sewers and across farm fields. We understand how the discharges that are produced by wastewater treatment facilities and that leach from septic systems flow into the bay. 

We also understand the impact of the atmospheric deposition. 

We do not need more studying. We need to stop the inflows of 

pollutants harming the bay, and we need to ensure that we have 

clean water throughout the Nation. 

And I just have two questions, Administrator McCarthy. 

Under section 303(d) of the Clean Water Act, the EPA has encouraged some States to put into place total maximum daily load. 

Maryland and other States in the Chesapeake Bay watershed have 

led that charge. What gains do States like Maryland and, by extension, the Chesapeake Bay watershed, stand to receive from an updated ‘‘waters of the U.S.’’ rule? 

And my second question is: The Chesapeake Bay region has for 

decades been working to identify and address ongoing sources of 

pollution to the bay. How does this proposed rule affect these efforts? Has the current confusion surrounding the scope of clean 

water protections complicated these cleanup efforts? 

And I will listen for your answer. 

Ms. MCCARTHY. Well, first of all, thank you for coming to EPA 

and for your congratulations and thanks to the staff, who are working very hard. 

37 

First of all, let me thank you for all the work that Maryland and 

others have done on TMDL. Let me explain to you what I think 

the benefits of this rule are. 

We are faced with significant uncertainty at the moment, which 

means that people are asking sometimes questions that take a long 

time to answer about whether or not something is an important 

water to protect, whether if they intend to pollute it or destroy it 

in some way, what process they need to go through. And so people 

are focusing their resources sometimes and money on areas where 

they don’t need to look, and they are missing areas that are significant in terms of our ability to protect clean water and safe water 

for everyone. 

So this is an ability to try to look at the science, cut through 

some of that uncertainty, focus people where the attention ought 

to be focused, allow our agriculture community to farm and allow 

folks to ranch and do all of the work that is so important to us, 

but also make sure that we are focusing on the waters that we 

really need to protect. It will save everybody time, everybody 

money, and it will also be respectful of what the law requires us 

to do and the science is telling us is most important. 

Mr. CUMMINGS. And, you know, one of the things that Senator 

Cardin talked about is that—and we find it a major problem in 

Maryland; I am sure they find it throughout the United States— 

is the trying to make sure that our farming community is protected 

and, at the same time, trying to make sure that we keep our water 

clean. 

You talked about it a little bit, but, I mean, tell us a little bit 

more about your interaction with the Secretary of Agriculture. And 

how do we strike that balance? 

Ms. MCCARTHY. Well, the USDA and EPA have been working 

hand-in-hand in terms of understanding the concerns of the agriculture community so we can better address those concerns in a 

final rule. 

We are working closely, as you know, with how we align what 

we need to do to protect water, especially beautiful resources like 

the Chesapeake, and how does USDA craft programs that work 

with the agriculture community to support conservation efforts, to 

support the building of buffer zones that connect as filters that can 

protect water quality. 

And so we are working hand-in-hand to understand what we 

need to do to ensure that this is clear so that the agriculture community recognizes that the exemptions in the law are indeed protected, that they recognize that this rule is all about narrowing the 

jurisdiction of the Clean Water Act based on what science is telling 

us is important and not important, and that we continue to work 

hand-in-hand with them so they can produce the food, fuel, and 

fiber we all really rely on—— 

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

Ms. MCCARTHY [continuing]. And do it in a way that is certain. 

Mr. CUMMINGS. Thank you. 

Mr. SHUSTER. Thank you very much. 

And just to give everybody a heads-up, we are going to go to Senator Boozman next and then Senator Sullivan, Congressman 

Massie and then Congresswoman Napolitano. 

38 

So, with that, I recognize for 5 minutes Senator Boozman. 

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

Thank you for being with us, Administrator McCarthy. 

I am concerned that the EPA is putting out misleading information to justify its efforts to take control of almost all the water in 

our country away from State and local communities’ jurisdiction. 

Last summer, EPA’s Acting Assistant Administrator for Water 

posted a blog on your agency Web site explaining which ditches the 

EPA wanted to control. The blog described such ditches as, quote, 

‘‘generally those that are essentially human-altered streams, which 

feed the health and quality of larger downstream waters,’’ end 

quote. 

And I would ask unanimous consent that this be included in the 

record. 

Mr. SHUSTER. Without objection, so ordered. 

[The information is on page 407.] 

Senator BOOZMAN. Also, you used the connectivity report to justify this power grab. And it has a graphic where the only example 

of a ditch is an altered natural stream. 

The EPA is clearly trying to convince Americans and Arkansans 

that this is no big deal and not a massive increase in Federal jurisdiction. However, your proposed rule goes far beyond human-altered streams when it comes to regulating ditches and other channels and water conveyances built by people. 

I would really ask three things. 

First of all, will you commit to us that your final rule will actually match the rhetoric that the Agency is coming out with, posted 

on such things as the Water Administrator’s blog? 

Specifically, will you commit that the only artificial channels that 

would be jurisdictional under the final rule will be channelized natural streams? 

And, lastly, I want to clarify, I don’t mean streams that were 

channelized historically. Constitution Avenue, a major road in 

Washington, DC, used to be Tiber Creek. Potentially, your final 

rule could make the curbs along Constitution Avenue into federally 

controlled waters of the United States. 

Ms. MCCARTHY. Senator, I am glad you brought up the issue of 

ditches, because the proposal actually expands exclusions to the jurisdiction of the Clean Water Act. It doesn’t cut jurisdiction. And 

I can explain that, but let me go right to the heart of the matter. 

What we are really most concerned about are ditches that are actually channelized tributaries, that actually were tributaries and 

look and smell and taste like them. The other issue, though, however, is that there are ditches that are directly connected to the 

tributary system that actually have the flow and the duration in 

them, where they have features that are consistent with how we 

define tributaries. 

So there are those two concerns that we need to address in the 

final rule more clearly, but we are doing our best to indicate what 

is in and what is out. And we, in fact, have very clearly reduced 

what we are considering to be the jurisdiction under the Clean 

Water Act in this proposal. And I can explain that if you would like 

me to take the time. 

39 

Senator BOOZMAN. So you are committing that the only artificial 

channels that would be jurisdictional under the final rule would be 

channelized natural streams? 

Ms. MCCARTHY. I think there is a flow component here that I 

want to make sure that I don’t miss. 

What is happening today is that, if you construct a ditch in dry 

land and it flows less than intermittent, it is excluded. What we 

are trying to say and what we have said in this proposal is that 

ditches constructed in dry land and flow less than perennial would 

be excluded. So it expands the exclusion. 

So there is a flow component that needs to be considered. 

Senator BOOZMAN. Along a separate issue, will you commit to 

Congress that your final rule will not regulate groundwater or 

groundwater withdrawals that affect flows to surface waters? 

Ms. MCCARTHY. Groundwaters are exempt from jurisdiction 

under the Clean Water Act, and we—— 

Senator BOOZMAN. Groundwaters or groundwater withdrawals? 

Ms. MCCARTHY. Both. We are not impacting groundwater withdrawals either. 

Senator BOOZMAN. OK. 

Thank you, Mr. Chairman. 

Mr. SHUSTER. Thank you. 

I now recognize Senator Sullivan for 5 minutes. 

Senator SULLIVAN. Thank you, Mr. Chair. 

Administrator McCarthy, nice to meet you here. I look forward 

to working with you, meeting with you and your staff in a respectful fashion. 

As you can imagine, in Alaska, we have a lot of concerns. We 

love our environment—most pristine environment in the world. 

Ms. MCCARTHY. Yes. 

Senator SULLIVAN. We are really good at taking care of it, the 

State is, our people are. But Alaska is also home to 63 percent of 

the Nation’s water subject to Clean Water Act jurisdiction and 65 

percent of the Nation’s wetlands. So, as you can imagine, this is a 

very big deal for the people I represent, many of whom oppose this 

rule. 

The Resource Development Council in Alaska believes, looking at 

this rule, that it could expand that already incredible jurisdiction 

in Alaska by one-third. 

So I just want to ask a few important questions to start out with. 

As you know, Ms. McCarthy, the EPA is a creation of Congress, 

and all regulations promulgated by the EPA must have a substantial basis in the law. Do you agree with that? 

Ms. MCCARTHY. Yes. The regulations should reflect what is in 

the law. Yes. 

Senator SULLIVAN. So one request I had, kind of going forward, 

is a commitment, out of respect for this committee and the Members of Congress, from you and your staff that any action, any regulations going forward, that every time you are testifying, that you 

or your staff specifically point out the specific provisions of the law 

that you are acting under, whether it is action or regulation. 

Will the EPA commit to doing that in the future? 

Ms. MCCARTHY. I am sorry, Senator. I don’t exactly know what 

you are asking—— 

40 

Senator SULLIVAN. But just—— 

Ms. MCCARTHY [continuing]. Me to commit to. But, certainly, we 

will—— 

Senator SULLIVAN. A regulation like this—— 

Ms. MCCARTHY. Yes. 

Senator SULLIVAN [continuing]. When we start out—— 

Ms. MCCARTHY. Yes. 

Senator SULLIVAN [continuing]. Come to the committee of Congress that has jurisdiction and say, here is the exact provision in 

the statute that gives us the power to promulgate this reg. 

Ms. MCCARTHY. We make it clear, when we propose a rule, what 

the actual rule language is and how it changes. And we certainly 

discuss what the law says and our interpretation of the law—— 

Senator SULLIVAN. OK. 

Ms. MCCARTHY [continuing]. And how the regulations are consistent. 

Senator SULLIVAN. Great. 

So let me get to a little bit of the specifics on this regulation. So, 

just in terms of chronology, how I understand it, the Clean Water 

Act defines ‘‘waters of the U.S.’’ Several Supreme Court cases—Riverside, Rapanos—defined it, further limited it. 

In May 2009, the EPA came to Congress, urged Congress to expand the jurisdiction of the Clean Water Act to the furthest extent 

possible. And, from my perspective, that is so far, so good. When 

you want to expand the jurisdiction of the EPA, you have to do it 

through the Congress, not through regulations. 

Congress didn’t do this. And, in the meantime, the EPA was sued 

by several States on a Clean Air Act regulation, and the Supreme 

Court reprimanded the EPA for what it viewed as a significant 

Federal overreach in terms of separation of powers in the Utility 

Air Regulatory Group v. EPA. 

Did you have an opportunity to read that case, the Supreme 

Court case? 

Ms. MCCARTHY. Yes, I did. 

Senator SULLIVAN. So there was a provision in that Supreme 

Court case where the Justices said the ‘‘EPA’s interpretation is also 

unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear 

congressional authorization. When an agency claims to discover in 

a long-extant statute an unheralded power to regulate a significant 

portion of the American economy, we typically greet its announcement with a measure of skepticism. We expect Congress to speak 

clearly if it wishes to assign to an agency decisions of vast economic 

and political significance.’’ 

I am quoting that because I think that is exactly what is happening here, a significant expansion of EPA jurisdiction over the 

U.S. economy, over certainly my State, and I don’t think that the 

Congress has authorized that authority to the EPA. 

So I will just be a little bit frank. I don’t even think this is a 

close call. I don’t think the EPA has the power to issue this regulation under the Constitution and the statute. I think you are trying 

to change the statute, and that clearly is a power that belongs to 

the Congress. 

41 

So I want to work with you on this, but I want to request that 

you withdraw this regulation, start over. There are 22 States that 

have made a similar request. And I think that that is an important 

way that you show respect not only to the States but to Congress. 

Ms. MCCARTHY. Senator, I very much respect Congress as well 

as your opinions, and I will do my best to work with you. I would 

say that I don’t think the Agency is in any way seeking congressional action or otherwise to expand the jurisdiction of the Clean 

Water Act. What we are just trying to do here is to better define 

that in a way that everybody can be more sure of its implementation and we can save everybody time and resources. 

And I know this is a big issue in your State, Senator, and I am 

happy to sit down with you. I think we worked very hard to align 

ourselves with a good government in Alaska, and we are trying to 

continue that partnership. And if there is anything that we can do 

to address your issues more specifically, I would enjoy working 

with you on it. 

Senator SULLIVAN. Well, I look forward to working with you as 

well. 

Mr. SHUSTER. The gentleman’s time is expired. 

Senator SULLIVAN. Thank you. 

Mr. SHUSTER. Thank you, Senator. 

And, with that, just to give everybody the lineup, we are going 

to go to Congressman Massie, then Napolitano, then Meadows and 

Edwards, in that order. 

So we have 5 minutes for Mr. Massie. 

Mr. MASSIE. Thank you, Mr. Chairman. 

After sitting here for 2 hours in this hearing talking about 

‘‘science-based rules,’’ I am reminded why a lot of people think that 

Washington, DC, is a 10-mile square surrounded by reality. 

You know, I studied science and engineering at MIT for 6 years, 

but you don’t have to be a scientist or an engineer to understand 

you can’t do science without numbers and you can’t do science 

without units. 

I have heard terms like ‘‘flow,’’ ‘‘duration,’’ ‘‘wet,’’ ‘‘dry,’’ ‘‘intermittent,’’ but these things have not been defined today and are not defined in your rule. I have read the rule. It uses terms of art, but 

it doesn’t use terms of science. 

And that is why we are going around the bush here chasing our 

tails, is because we are not talking about numbers and units. The 

units we should be using and the units that I see in State law are 

acre-feet, gallons per minute, 100-year flood, 500-year flood. Let me 

give you an example. 

Here is a definition of ‘‘flood plain’’ from your rule. It means ‘‘an 

area bordering inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions 

and is inundated during periods of moderate to high water flows.’’ 

What the heck does ‘‘moderate to high’’ mean? Could you put 

these rules—you say they are based on science. A science-based 

rule would say 100-acre flood or a—I am sorry—a 100-year flood 

or a 500-year flood. That is what I see missing from these rules, 

and that is why we are concerned. 

Why are there no numbers or units in the rule? 

42 

Ms. MCCARTHY. Actually, we put both definitions as well as we 

teed up a number of potential ways to actually bring more bright 

lines into the system. We actually took comment on whether or not 

it should be 100-year flood plain. So we really were paying attention to the science. 

Mr. MASSIE. Well, I would recommend that you heed those comments and use them. This is the fourth hearing we have had on 

this. Mr. Perciasepe answered a few questions for me. 

I believe he was your Deputy Administrator. Is that correct? 

Ms. MCCARTHY. That is correct. 

Mr. MASSIE. I asked him about the cost of implementing this 

rule, and he once testified it was $100 to $200 million. And then 

he later clarified it to say it was $160 to $280 million. 

Do you agree with those numbers to implement it? 

Ms. MCCARTHY. If you give me 1 second, I can tell you what the 

numbers are. I see the costs identified in the proposal as $162 million to $278 million. 

Mr. MASSIE. OK. I am glad you agree with him. 

Because on page 5 of your written testimony today, you say, ‘‘The 

rule provides continuity with existing regulations where possible, 

which will reduce confusion and’’—I am quoting you here—‘‘will reduce transaction costs for the regulated community and the Agency.’’ 

So how can you say it is going to reduce transaction costs for the 

community and the agencies and then testify that the cost is $160 

to $280 million? 

Ms. MCCARTHY. Well, because we are looking at the overall cost 

of implementation and then looking at how effective we are in 

reaching those waters that are necessary to protect. 

And I think I made it clear earlier that part of the implementation challenge is that there are some waters which we are failing 

to protect that need to be protected and there are others where we 

are spending significant costs and money to go after waters that 

are not essential for protection. And we are trying to clarify that. 

Mr. MASSIE. Well, you know, outside of this 10-mile square, that 

sounds like Washington, DC-speak. You are saying it is going to 

save money in your testimony, but you are testifying that it will 

cost money. 

I have one final question. This has to do with the farmers. 

We have a lot of farming in Kentucky. I farm myself. And on 

page 6 of your testimony, you say, ‘‘This rule maintains the longstanding exclusions for prior converted cropland.’’ And I am glad 

for that. That sounds generous. 

But anybody who farms knows that you don’t always plow that 

cropland every year. Some years you have good years. Some years 

you have bad years. Some years you use it for pasture. Some years 

you merely let it go fallow. 

And one concern that I have seen with the Army Corps and the 

EPA is this term called ‘‘naturalization’’ or ‘‘renaturalization,’’ 

where, if something is untended for a period of time, they say it 

is reverted back to its natural state, and now this exemption no 

longer applies. 

43 

Will this exemption apply if somebody hasn’t farmed that cropland or has used it for some other farming purpose or just let it 

go fallow for some period of time? 

Ms. MCCARTHY. You know, I would—I don’t think that I can specifically answer your question other than to say this doesn’t change 

the way in which the Agency has been working with the farming 

community. And the definition—— 

Mr. MASSIE. Assistant Secretary Darcy, would you care to answer that? 

Ms. DARCY. I concur with the Administrator. The prior converted 

cropland exemption remains. I think your question is how far out 

does prior converted cropland extend. 

Mr. MASSIE. Correct. 

Ms. DARCY. What we have done historically with prior converted 

cropland would still be the case under the proposed rule. 

Mr. MASSIE. What is that? What period of time? 

Ms. DARCY. I would have to get back to you on that because I 

don’t know if that—— 

Mr. GIBBS [presiding]. The gentleman’s time is expired. 

Mr. MASSIE. Thank you. My time is expired. 

Mr. GIBBS. Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

And I do ask unanimous consent to include in today’s hearing for 

the record—— 

Mr. GIBBS. So ordered. 

Mrs. NAPOLITANO [continuing]. Comments from the California 

State Water Resources Control Board, which I quote, ‘‘Strongly 

support the agencies’ intent to adopt regulations to provide clarity 

to the definition of ’waters of the United States’ in order to improve 

efficiency, consistency, and predictability while protecting water 

quality, public health, and the environment.’’ 

Mrs. NAPOLITANO. Mr. Chairman? 

Mr. GIBBS. Without objection, so ordered. 

[The same letter from the California State Water Resources Control Board was submitted by Senator Boxer and is on pages 317– 

326.] 

Mrs. NAPOLITANO. Thank you. 

And, also, Senator Boxer has already included in the record a letter from California Association of Sanitization Agencies, which generally is supportive of the administration’s efforts. Also, they are 

requesting greater clarity on certain points. 

And they state that the CWA is a ‘‘40-year-old statute that has 

not been updated to address the needs and realities of today’s 

water quality problems.’’ For the record. 

Mr. GIBBS. Without objection, so ordered. 

[The letter from the California Association of Sanitization Agencies submitted by Representative Napolitano is on pages 408–411 

and differs from the one submitted by Senator Boxer.] 

Mrs. NAPOLITANO. Thank you. 

I applaud these and many other groups that recognize this proposed rule in an attempt to undo confusion and uncertainty created 

by the former administration so that we may protect both the Nation’s economy as well as its water-related environment. 

44 

Bush guidance comments, which this rulemaking will replace, 

are simply unsustainable. They fail to live up to the congressional 

framework of the Clean Water Act as well as the framework outlined by the courts. 

Simply put, this guidance fails to protect our Nation’s water, especially our drinking water. Rulemaking is necessary because nearly 125 million Americans, over one-third of the population, rely on 

public drinking water systems that draw from surface waters. 

Of that number, 117 million Americans obtain their drinking 

water from intermittent ephemeral or headwater streams. In California alone, my State, over 7 million rely on intermittent ephemeral and headwater streams for their daily drinking water supply. 

So we feel we must all do what we must to protect these water 

resources because this is the only resource we all have. So when 

this water dries up, our way of life and our local, regional and 

State economies will dry up with it. 

Opponents of the clean water rulemaking frame is an attack on 

private interest, calling it a land grab fueled by Federal greed. 

However, our Nation has never recognized a right to pollute, which 

is what opponents of this rule are asking for. 

Polluters would rather preserve the regulatory shadows created 

by the former administration where they can fill wetlands or destroy waters with little to no accountability, as was the case in San 

Gabriel Valley, where we have a polluted area the size of a small 

State that has taken over $95 million to start working to just get 

it cleaned up. And we have got another $95 million or more to go. 

This is because of fertilizers, pesticides, et cetera, that have seeped 

into the groundwater, into our drinking water. 

If private interests are successful in blocking this rule, it is the 

public who will suffer. In my State, it will mean less publicly available drinking water, less protection over those drinking water 

sources that remain, and an increased likelihood of flooding for our 

communities. 

So we need to let the administration finish what they started. 

Protect the waters of the U.S. with this current rulemaking. 

I do have a couple of things that I do have—in June of last year, 

I did ask some questions in regard to stormwater drains and, also, 

water recycling, which you have addressed, and I hope that you 

will continue working with our agencies throughout the Western 

States, which are heading into drought cycles again, to be able to 

protect recycled water. As you say, stormwater cleanup is very important to the whole Nation. 

There are many other things that we have discussed ad nauseam, I am sorry to say. We need to put it in language that people 

will understand and publicly let the people know that EPA is there 

to help clean the water, but do so in a way that is going to help 

business, going to help farming. 

And I applaud your effort to be able to clarify and reach out to 

everybody. And I noticed in the reports there is not as much outreach to California as I would have liked to see insofar as the 

water agencies that I know are very critically involved in this. 

So thank you very much for all the work you do. And let’s work 

together, hopefully, to be able to ensure that the proposed ruleVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
45 

making comes before Congress and we can all agree to disagree, 

but agree on the things we need to agree on. 

Thank you very much. 

Ms. MCCARTHY. Thank you. 

Mr. GIBBS. I have two quick questions to the witnesses. 

You keep saying that you will fix things in the final rule, that 

the questions have been raised. 

Will you do a supplemental proposal so the public will have a 

chance to review that before you do the final rule, then, since there 

has been so many questions raised about what sort of things are 

going to get fixed in the final rule? 

Ms. MCCARTHY. Well, we received a number of comments, as you 

know, and we are working with the stakeholders on the issue. But 

a supplemental would only be required if we certainly go outside 

the boundaries of what we have already teed up in the proposal. 

And at this point we intend to finalize the rule. 

Mr. GIBBS. OK. Mr. Meadows, you are recognized for 5 minutes. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Thank each of you for being back with us. 

Ms. McCarthy, I wanted to wear my Boston Red Sox hat today 

just so you would know that—— 

Ms. MCCARTHY. We did, too. 

Ms. DARCY. I am from Massachusetts, too. 

Mr. MEADOWS. And I do want to say that there are elements 

where some of the issues that we are talking about today that we 

do hear a responsive ear. I am troubled, however, by some of the 

testimony, as you would probably be well aware. 

I have in the past received permits from the EPA from our State, 

and, as I deal with that, the ambiguous nature of rules and guidelines for those permits, I don’t see that being clarified in this rulemaking. 

So can you tell me today, how much quicker are those permits 

going to get issued? 

Ms. DARCY. Congressman—— 

Mr. MEADOWS. Because I don’t see anything in the rule. I read 

it and—— 

Ms. DARCY. Could I answer that one, Congressman? 

Mr. MEADOWS. Sure. 

Ms. DARCY. We think that by getting more clarity as to what is 

in and what is out is going to be able to inform our regulators within the agency. 

Mr. MEADOWS. But this doesn’t do that. I mean, going back to 

what Mr. Massie just said, the definitions are still ambiguous. 

How in the world can you say, well, medium flow, moderate flow? 

Moderate flow, to me, is very different, maybe, than moderate flow 

to you. The definitions even in the rules are not specific. 

So how can the average person look at those and say that they 

can implement it any faster? 

Ms. McCarthy? 

Ms. MCCARTHY. Well, I think we have done a good job at teeing 

up opportunities for narrowing where there is uncertainty and, 

also, narrowing where you have to do case-by-case study based on 

what the science tells us is in and what the science tells us isn’t. 

46 

And I would just ask you to take a look at that as well as alternatives we have teed up, because it is clearly our intent to reduce 

uncertainty here, which will, in essence, reduce costs associated 

with it. 

Mr. MEADOWS. All right. So you mentioned the cost. 

Ms. MCCARTHY. Yes. 

Mr. MEADOWS. And my good friend from Kentucky mentioned the 

cost. 

Ms. MCCARTHY. Yes. 

Mr. MEADOWS. So if we are regulating and making rules on less 

water, how could that be more costly? How could it cost $200 million? 

Ms. MCCARTHY. Well, let me try to clarify it because I frankly 

think I did not do a very good job at that. So let me take another 

shot at it. 

The cost increase that we see relates specifically to what we believe to be mitigation impacts and what would need to be done to 

reduce pollution and impact on sensitive waters that we believe 

will identify—— 

Mr. MEADOWS. So you are going to increase the mitigation cost? 

Ms. MCCARTHY. No. 

Mr. MEADOWS. Because I have gone through mitigation and we 

already have a two-for-one, one-for-one, four-for-one kind of mitigation. 

What mitigation are you talking about? 

Ms. MCCARTHY. I explained before that I think there are areas— 

they are small, but there are areas where we are not sufficiently 

protecting water that should be. We are being very clear, I think, 

about what is in and what is out. 

But when you apply that to what is being implemented today, 

there are some areas where they would actually require a permit 

and require mitigation associated with that. 

That is not to increase the per capita transaction—the transaction cost, but it is just a reflection that it will be clearer about 

some areas that should be protected because they are significant 

and what areas are not. 

Mr. MEADOWS. All right. So maybe dumb it down for me. 

How do we make it clearer and easier and it becomes more costly? I don’t—explain it to the American people. 

Ms. MCCARTHY. Well, we have made, I think, an opportunity 

available to take a look at how you define tributaries. Right now, 

that is not well defined. We have defined that—— 

Mr. MEADOWS. Yeah. Because I live on the Continental Divide. 

Everything is downhill for me. 

Ms. MCCARTHY. We have increased exclusions and exemptions. 

We have done at least a step forward on ditches, what is in and 

what is out. 

We have tried very hard to identify this adjacency question, 

which the Supreme Court told us we had to define. We defined it 

by proposing a variety of options to take care of that. 

We have actually identified opportunities to take these other 

water sections and to try to find ways of doing more categorical exemptions or inclusions—— 

47 

Mr. MEADOWS. All right. So let me reclaim my time real quickly 

because I have got one last question. 

Ms. MCCARTHY. OK. 

Mr. MEADOWS. Ms. Darcy and you and Mr. P, as I would call him 

before he retired—— 

Ms. MCCARTHY. Bob Perciasepe. 

Mr. MEADOWS. Yes—mentioned that this would not affect farmers, that, really, they are kind of quasi-grandfathered in, and, yet, 

I assume that the American Farm Bureau, the North Carolina 

Farm Bureau—none of them have come out to endorse this. 

So if stakeholders are not endorsing this rulemaking, what is the 

problem? 

Ms. MCCARTHY. Well, it is a complicated rulemaking, and some 

areas are clearer than others. And we will be working with them 

on it. 

But the agriculture community deserves to have more certainty 

than what is available to them today, and we are going to try to 

do that in working with the agriculture community. 

And we have not done anything to narrow exclusions or exemptions in the Clean Water Act. In fact, we are expanding those exemptions and exclusions in this rule. 

Mr. MEADOWS. I appreciate the patience of the Chair. 

Mr. GIBBS. The gentleman’s time is expired. 

Ms. Edwards, you have 5 minutes. 

Ms. EDWARDS. Thank you, Mr. Chairman. 

And I thank the witnesses as well for your patience. 

I would ask unanimous consent to enter into the record letters 

of support and resolutions from various of our small municipal jurisdictions out in my congressional district in our State—well, one 

of those is not small, the city of Baltimore—but cities like College 

Park, Capitol Heights, Edmonston, Forest Heights, Mount Rainier, 

New Carrollton, and the city of Rockville—letters of support from 

them as well as from Clean Water Action supporting their efforts, 

from more than 30 of our State senators and legislators who have 

deep experience in working on these issues in the State of Maryland, a letter from Union Craft Brewing Company, Heavy Seas 

Brewing Company, and the small bed and biscuit—Hereford Bed & 

Biscuit in Parkton, Maryland. And I would offer those for the 

record. 

Mr. GIBBS. Without objection, so ordered. 

[The information is on pages 414–440.] 

Ms. EDWARDS. Thank you. 

And, again, thanks to the witnesses. 

Because I have heard from you numerous times. And, to me, it 

seems fairly, you know, clear. And I am no expert. But I think, like 

most Americans, I want to just get up, turn on the water, know 

that I can drink it, wash with it, and that it is clean, my children 

aren’t going to get sick, my immune system won’t be jeopardized. 

And we depend on the Government to do that. We depend on the 

EPA and on the Army Corps. 

And so, with the two Supreme Court decisions and the guidance 

documents that were issued in 2003 and 2008, it is my understanding that the regulated community, conservation, and environmental organizations, several States, concede that the current procVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
48 

ess that has been in place—and, really, you know, for the better 

part of a decade, that kind of uncertainty that has been in place 

is confusing, it is inconsistent, it is costly, and it has provided little 

environmental benefit. And from what I have heard, entities really 

just want certainty, and I think that is what I have heard from the 

witnesses today. 

The two agencies released in March 2014 a proposed rule that 

would clarify the jurisdiction of the Clean Water Act and requested 

certainty. And so, to me, quite simply, it is a proposed rule. It is 

not a final rule. There is a lot that has gone into the process. You 

have already explained that there have been a couple of extensions 

to allow for additional comments and consideration. I can’t actually 

think of a more public process than has been engaged in this rulemaking. 

And from what I further understand about the rulemaking process, agencies take the comments that are received like you are 

doing. You have hearings and consultations with a broad swath of 

interested parties and then you make modifications to the proposed 

rule before you issue the final rule. 

That is where we are right now. And I think we have heard from 

some of my colleagues that the gross exaggerations that have been 

made about the scope of the rule are, in fact, that. They are exaggerations. And so I am glad that you are here again today to clarify 

for us what is in consideration and what is not. 

I just want to point out that, in Maryland, 59 percent of our 

streams have no other streams flowing into them, 19 percent don’t 

flow year-round. And under the varying interpretations of the recent Supreme Court decisions, these smaller bodies are among 

those for which the extent of Clean Water Act protections has been 

questioned. And so the EPA says that, basically, nearly 4 million 

Marylanders—and that is about 70 percent of our population—receive some of our drinking water from areas that contain these 

smaller streams. 

And, as I said, 70 percent of Marylanders get our drinking water 

from sources that rely on headwater or seasonal streams. We, in 

fact, in our State are welcoming this clarity. 

And so, in view of that fact, I am proud that Maryland joined 

over 30 States—I am a little confused—30, 34. Like we have 64 

States. But 30 States have joined in asking the Supreme Court to 

uphold broad legal protection through small tributaries and their 

adjacent wetlands. 

And so I share with Senator Whitehouse that this is not a perfect 

scenario, but we shouldn’t let the perfect be the enemy of the good. 

And I wonder if you could just comment for me in the brief time 

that I have left the agricultural exemptions that you have told this 

committee about before and the fast-tracking process that the 

Army Corps will put into place to make sure that discharges associated with agricultural activities will not have the kind of impact 

that some of our farmers perceive. 

Ms. DARCY. I will take that one, Congresswoman. 

The agricultural exemptions that currently exist in the Clean 

Water Act are still there. That is unchanged by this rule. They include agriculture stormwater discharges, the return flows that the 

Administrator talked about earlier, construction and maintenance 

49 

of farm and stock ponds, maintenance of drainage ditches, upland 

soil and water conservation policies. These are all in place, and 

they continue to be in place as a result of this rule. 

Mr. GIBBS. Your time is expired. 

Senator Fischer, you have 5 minutes. 

Senator FISCHER. Thank you very much. 

Nice to see you again, Administrator. 

Ms. MCCARTHY. You, too, Senator. 

Senator FISCHER. I have here many, many comments that were 

filed by the League of Nebraska Municipalities, and I want to make 

sure that their concerns are heard and not ignored, as I believe you 

rushed to issue a final rule by April, assuming a 60-day OMB review period instead of the usual 90 days. And it would give you 

then only 3 months to review and address over the 1 million comments you have received. 

These comments provide a good overview of concerns about your 

proposal because Nebraska municipalities not only run wastewater, 

stormwater, and flood control systems, they also provide drinking 

water, electricity, and natural gas to their citizens. 

So I ask unanimous consent that these comments be placed in 

the record. 

Mr. GIBBS. Without objection, so ordered. 

[The information is on pages 441–455.] 

Senator FISCHER. Thank you. 

Administrator, I also have a copy for you here, if you would take 

that, and I hope that you will take the time to read through it. 

My communities are deeply concerned about the proposal. You 

know that. The reason they are so concerned is that your proposed 

rule could regulate all waters in the State of Nebraska. 

First of all, you are proposing to regulate all water that has a 

shallow subsurface hydrologic connection or subsurface hydrology. 

As you can see from a chart that I have, in large areas of Nebraska, the groundwater table is only 50 feet below the surface. All 

water located in these areas could be automatically regulated 

under this proposal. 

Second, you are proposing to regulate other water on a case-bycase basis that includes consideration of connections through deeper groundwater systems, and you are proposing to look at all waters in the aggregate in a watershed or in an ecoregion. Most of 

Nebraska falls in one of the ecoregions that you have identified. 

Therefore, all water in these ecoregions would be reviewed collectively to determine that they have connections through groundwater. That makes them all waters of the United States. 

I want you to understand that municipalities and landowners in 

Nebraska cannot engage in development activities or construct and 

maintain wastewater, stormwater, and flood control systems without creating some form of open water that would be regulated 

under this proposal. I don’t believe that is a myth. These are real 

impacts of the proposal that you are putting forward. 

So I would ask: Will you commit that your final rule will not assert Federal control over water based on groundwater connections? 

Ms. MCCARTHY. Well, first of all, Senator, thank you. 

We actually are working very hard to identify and resolve the 

issues that you have raised. I would agree with you that there are 

50 

many legitimate issues that have been raised, and I will also agree 

that we are not rushing to finalize the rule until we resolve these 

issues to our satisfaction and so that we can explain to the stakeholders how we listened to them. So I would appreciate walking 

home with the comments that you have provided. 

I am going to fall short of answering your specific question until 

the dialogue with the stakeholders is concluded and we see how 

we—we understand that groundwater, while it is not regulated 

under the Clean Water Act, there are connections that may be important for the quality of downstream waters. But, clearly, folks 

are asking for a lot more clarity on this and this is one area where 

we need to work hard together. 

Senator FISCHER. Also, I would say to you that many of my 

stakeholders feel that your staff has refused to provide them with 

some clear answers during outreach sessions and they are concerned about the intended scope of the proposed rule. 

Cities and counties have repeatedly asked your staff if they intend to include the municipal storm sewer systems in the definition 

of ‘‘waters of the United States,’’ and, instead of clearly disavowing 

any such intent, your staff seems to be very evasive and will only 

say, ‘‘If you don’t need a permit today, you don’t need one under 

the proposed rule.’’ I would hope that is correct, but we need clarification on that. 

I think that answer is unacceptable. It suggests to me that some 

storm sewers are going to be considered ‘‘waters of the United 

States.’’ The storm sewers and other water management ditches 

and canals are not waters of the U.S., but I think your proposal 

is broad enough that it would bring them under Federal control. 

And we definitely would have issues with that. We have many 

issues that come up with industrial facilities, with farmers, wastewater treatment facilities, drinking water utilities, because they all 

manage water in manmade conveyances. 

Mr. GIBBS. The gentlelady’s time is expired. 

Senator FISCHER. I see my time is up. Thank you. 

Mr. GIBBS. Do you want to respond quickly? 

Ms. MCCARTHY. Only that, Senator, I would really appreciate it 

if our staffs could work together. And if there is clarity that we can 

provide and additional outreach, I would be more than happy to do 

that. 

Senator FISCHER. I appreciate your openness on that, Administrator, and, hopefully, we can get answers to my stakeholders. 

Ms. MCCARTHY. Thank you. 

Senator FISCHER. Thank you. 

Mr. GIBBS. Mr. Woodall, you are recognized for 5 minutes. 

Mr. WOODALL. Thank you, Mr. Chairman. 

I appreciate you all being here, particularly for those of us at the 

bottom end of the dais. 

I wanted to follow up on Senator Fischer’s question, though. I 

have been a staffer for a decade or so, and I appreciate that you 

don’t always—if your name is on the door, you don’t always want 

the staff disavowing things, because that is the job for the men and 

women whose names are on the door. 

But if it is clear that stormwater clearly is not within Federal 

jurisdiction, why can’t those with their names on the door go ahead 

51 

and disavow that today and let us take that off the worry list for 

folks back home? 

Ms. MCCARTHY. Well, I would like to take anything off the worry 

list that I can. So we will do whatever outreach we need to do to 

be as clear as we possibly can. Staff are obviously conservative in 

giving opinions during the middle of a rulemaking process, but we 

need to be a little less so so that we can be frank and build confidence in one another. 

Mr. WOODALL. But it would be easy to—I think about the Assistant Secretary. We have had conversations about water treatment 

facilities in our district. They are built above and beyond. They are 

just spectacular, a great expense to my constituents, because we 

are invested in the environment. In fact, I would take issue with 

anyone who says we are not doing more than our fair share. 

And it would be easy to go ahead and disavow a whole string of 

things that you have no intention of creating, but folks are talking 

about exaggerations and people being worried for nothing. 

I would tell you this. Waters of the U.S. is issue number one for 

folks in my district. Water, in general, is issue number one. And 

it seems that we do a disservice, as legislators and regulators, if 

we have an opportunity to say, ‘‘Let’s focus on what really is important, what really is a stakeholder contention, and let’s move these 

red herrings off the table.’’ 

Why should we be concerned with that? 

Ms. MCCARTHY. We had an earlier question about these facilities, 

these MS4s and others, and I was, I think, very clear that there 

will be exclusions articulated for those in the final rule. 

I think what we see has happened here is our interest in expanding exclusions wasn’t our intent to cover everything. And if we 

didn’t articulate everything, people felt that we were specifically 

narrowing those exclusions. We will do a job at articulating what 

is in and what is out better than we certainly did it before. 

And you will have my assurance that these things that have 

never been in before, that we have never talked about, will not be 

in the final rule. We will clarify these so that people will see in 

writing what they have been asking us about. 

Mr. WOODALL. I think about your goals of clarity, cost reduction. 

These are all goals that every stakeholder in my district shares 

and, I would argue, stakeholders across the Nation share. 

And, yet, amongst your million comments will be letters from our 

attorney general taking issue with the proposal, citing the very 

same case law that you cite to promulgate the proposal. Our attorney general would cite to negate it, our Chamber of Commerce, our 

Council for Quality Growth, our ag commissioner, on and on and 

on. 

I am very proud of Georgia’s record of environmental stewardship, particularly water stewardship. I am one of those anglers who 

spends $50 billion a year in U.S. waters. 

Can you tell me something that, in your collective experience, 

that we have failed on in Georgia that—again, sharing the desire 

that everyone has for clean water, I feel like we are meeting that 

standard locally today. No one is asking for Federal help today. 

Can you talk to me about some failures that we have had in my 

State that this rulemaking would seek to train us up. 

52 

Ms. MCCARTHY. I don’t think—and, Jo-Ellen, I am sorry. I am 

going to be very quick. 

I don’t think that this should be looked at as an indication of failure on the part of any State. This is trying to respond to States 

telling the Federal Government that, ‘‘It is time that you were 

clearer so that we can do our business, which is to co-regulate with 

you in a way that is effective and efficient.’’ 

They are asking us to be clearer. So I would not want folks to 

go thinking that this is a reflection of any failure on the part of 

any State. 

Mr. WOODALL. And so I am looking at a handout from the Water 

Advocacy Coalition that lists 11 States submitting comments to 

say, ‘‘We oppose the rules that are promulgated. We need lots of 

revisions,’’ another 22 States that say, ‘‘We oppose it. We want it 

withdrawn altogether.’’ 

You are saying that this process began as a response to these 

State stakeholders. But given that the majority of those folks have 

some degree of—or a substantial degree of concern today, would we 

still say that the rulemaking has addressed those concerns that it 

set out to address or have we gone far afield? 

Ms. MCCARTHY. I think we still have work to do before the final 

rule, and the final rule will respect that work getting done. I think 

that it is incredibly important that we retain the partnership we 

have with States working collaboratively together. 

We went through this process specifically to tee up a range of 

ideas that the States and stakeholders could respond to in the rulemaking. That is what you see has happened. 

This is not an easy rule, and I won’t suggest it is. But we will 

get this done in a way that we are supposed to, and we will listen 

and respond to the comments effectively. 

Mr. WOODALL. I appreciate that recognition of Georgia’s success. 

And, Mr. Chairman, I yield back. 

Mr. GIBBS. Administrator McCarthy, I have a quick clarification. 

You told Senator Fischer you will not rush to finalize the rule, 

but your Web site, EPA’s Web site, says you plan to issue a final 

rule in April. 

Is that still the plan? 

Ms. MCCARTHY. Well, certainly our goal is to issue it this spring. 

I am not going to give you a specific timeline more than that because I want to make sure that we are respectful of the full range 

of comments that came in and we have—— 

Mr. GIBBS. I just wanted a clarification for what your Web site 

says. OK. Thank you. 

Ms. Titus, you are recognized for 5 minutes. 

Ms. TITUS. Thank you. 

And thank you, Administrator, for being here. 

I represent the First Congressional District of Nevada. That is 

basically Las Vegas. We live in the desert. If you have ever been 

there, you know our biggest body of water is the fountains in front 

of the Bellagio. So we are kind of in a unique situation. 

Ms. MCCARTHY. And they are beautiful. 

Ms. TITUS. We get about 4 inches of water a year, but we also 

depend on one source primarily. Ninety percent of our water comes 

53 

from the Colorado River. It serves 2 million people who live there 

in the valley and 42 million people who come as tourists. 

So protecting that river is very important to us. And so I am very 

supportive of your efforts and generally think what you are doing 

is right on track. 

I have talked to some of the local government agencies, however, 

and they have a bit of a concern about the definition of ‘‘ephemeral 

tributaries.’’ 

And I would like to enter their letters in the record, if I may. 

One is from the Regional Flood Control District of Clark County, 

and one is from the Las Vegas Valley Watershed Advisory Committee, if that is all right. 

Mr. GIBBS. Yes. Without objection, so ordered. 

[The information is on pages 456–461.] 

Ms. TITUS. Thank you. 

The Flood Control District is concerned about the definition of 

‘‘ephemeral washes’’ in the desert throughout the Southwest because oftentimes they won’t carry water for years, but, when they 

do, it may be a flash flood. So the water level is very high. We 

would like to figure out how they will fit into the scheme of things. 

And the second concern from the Las Vegas Watershed Advisory 

also is about that same definition, and they would like to know if 

some facilities that they construct for water projects will actually 

be included, things like ditches, canals, ponds, manmade features 

used in the operation of wastewater treatment and supply systems. 

So could you address those two things or give me something that 

I can take back to them—— 

Ms. MCCARTHY. Sure. 

Ms. TITUS [continuing]. To assure them that these things are 

being considered in this process. 

Ms. MCCARTHY. Yes. Let me answer two. 

One is let us know who you would like us to talk to, because we 

will be very clear, as we answered before, about the MS4 issues, 

which is one of your issues. All of the construction that is done to 

protect stormwater from urban areas and others is extremely important for us to recognize and continue to incent that and not to 

confuse that issue. 

Let me mention the ephemeral washes, because the significant 

issue for us is: When does an ephemeral flow? When is it sufficient 

duration and intensity and frequency that it has an opportunity to 

impact the quality of the water that is downstream? That is the 

question. 

So what we are doing in this rule is trying to define the very 

water features that you can articulate in the field that reflect a 

water flow in those washes that indicate that it is of sufficient flow, 

duration, and frequency that it would have created a bed, a bank, 

and a high water—well, I am sorry—ordinary high-water mark— 

thank you very much—the ‘‘O’’ always eludes me—which are actually features that reflect that it flows sufficiently and frequently 

enough that it could significantly impact the biological and chemical and physical integrity of the waters that it flows into. 

So we are doing our best to define that in a way that you can 

see it and you can know what is in and what is out and would certainly find it an opportunity to talk to anybody about why we are 

54 

making those connections and why we think it is respectful of the 

science and why it will also minimize confusion in a way that will 

be helpful to everybody. 

Ms. TITUS. I appreciate that. 

If I can get them in touch with your office, then, to kind of reassure them along—— 

Ms. MCCARTHY. We are happy to reach out to your office as well. 

Ms. TITUS. Thank you so much. 

I yield back. 

Mr. GIBBS. Mr. Hardy, you are recognized for 5 minutes. 

Mr. HARDY. Thank you, Mr. Chairman. 

I, too, am from Nevada. I have the north portion of the Las 

Vegas area and, also, further north to the rural counties. We come 

from an area, like the Congresswoman said, where I have 7-yearold frogs that don’t know how to swim. So it is a dry area. 

So, with that, I want to go back to a comment that was made 

earlier about the $162 million to $280 million number. Can you 

elaborate on this analysis? And did you take into account the sheer 

mitigating factors? Were there second- or third-layer effects of the 

supply chain included in this analysis? 

Let me go ahead and put it into perspective. As a former 

businessperson, owner, trying to expand my company, I was not 

only concerned with the immediate internal facts, like my products, 

my employees, but I also had to look at the long-term external environment and the legal and socioeconomic and political factors. 

Have you looked into those to see what the costs of those would 

be with this mitigation? You say it significantly outweighs the benefit. 

Ms. MCCARTHY. To the extent that we—we followed the Office of 

Management and Budget guidelines and EPA’s guidelines, and we 

have done an economic analysis for this rule that is consistent with 

what we believe our obligation is and to the extent that science allows us to do this effectively. 

There are benefits that we cannot capture in this cost that we 

have estimated to the best of our ability. So we think we have done 

a very thorough economic analysis. But times change. 

We are going to relook at that economic analysis and, when we 

issue the final rule, we will do the best we can to talk about all 

of those, the benefits and costs associated with this rule not just 

short term, but long term as well. 

Mr. HARDY. OK. I would also like to read a comment from Nevada’s Department of Conservation and Natural Resources and the 

Nevada—Colorado Commission of Water. I would like to hear your 

reaction to it. 

‘‘Nevada has very strong laws and regulations to preserve and 

protect the waters of the State, which are defined as waters situated wholly, partly within or bordering upon the State. The State 

has the authority to protect all waters, whether or not they are 

subject to the CWA jurisdiction, and has carried out authority effectively and efficiently for decades.’’ 

I would like to hear your thoughts on this statement and why we 

continue to need your authority within our State when we are 

doing a great job. 

55 

Ms. MCCARTHY. Well, the States and EPA work with one another 

in partnership to protect waters. Again, I do not want this rule to 

look like it is an indication of a lack of diligence on the part of Nevada or any State. Frankly, it is just making sure that the Federal 

Government does its job to be as clear as we can. 

The States have asked for this because they want to eliminate 

challenges to some of their decisions and they want clarity on what 

they should be paying attention to. We are just trying to be the 

best partners we can with the States. 

Mr. HARDY. And I think that is where this comes into effect. You 

know, the Federal Government has a tendency to one-size-fits-all. 

I don’t think one size for Nevada fits anybody else. It doesn’t fit 

the West, nor does it fit any State in the United States. 

We have 50 significant different States and different environments. So this one-size-fits-all—we have to be very open on how we 

are going to deal with this. 

Another of the comments that was made here, if you wouldn’t 

mind reading it: ‘‘The EPA has attempted to collaborate with the 

States and other affected parties after the fact and address issues 

of concern that have already been proposed.’’ 

That is a concern to me when you say you—you have specifically 

said yourself that you have worked with the States, but they are 

telling us it is after the fact you come to them with this—with your 

proposal. 

Ms. MCCARTHY. These are issues that EPA and the States have 

been working on, literally, for decades. But no matter how you perceive the pre-proposal work that we did, there is no question, I 

don’t think, that the docket will reflect that we have done significant outreach with the States on this. We have reached out to them 

through our regions and through headquarters. We are going to 

continue that discussion. 

Mr. HARDY. One final question before my time runs out. 

‘‘The CWA has not intended to apply the management of groundwater. While we applaud the proposed rule exclusion of groundwater, the issue becomes blurred when the shallow subsurface hydraulic connections are used to establish jurisdiction between surface waters. This opens the door to interpretation and the argument of extension of the CWA jurisdiction to groundwater resources.’’ 

Any comment on that? 

Ms. MCCARTHY. That was the exact same issue that Senator 

Fischer raised, and we are happy to continue that discussion. 

Mr. HARDY. Thank you. 

I yield back. 

Mr. GIBBS. Mr. Huffman, you are recognized for 5 minutes. 

Mr. HUFFMAN. Thank you, Mr. Chairman. 

And I want to thank Administrator McCarthy and Assistant Secretary Darcy for your patience and testimony here today and, really, for your good work over the course of several years. 

It is remarkable how much public process you have brought to 

this issue, how much science, and how many iterations of peer review and analysis have gone into this, the fact that we have had 

drafts and revisions and a listening tour that really is more extensive than anything I have seen in my short time here in Congress. 

56 

And I think the real story of what you have done here is a story 

of the way a serious rulemaking ought to work. You have, frankly, 

just done good work, and I want to commend you for that. And you 

have maintained your patience in the face of, I think, some pretty 

outlandish accusations about this proposed rulemaking. 

In fact, I think there is—if there is any story from today’s hearing, I think it has to be how weak and unfounded and just plain 

wrong some of the claims about this rulemaking are. 

We have seen a map that was never intended to depict Clean 

Water Act jurisdiction or even jurisdictional expansion, but it was 

represented that way. And then, when you clarified that the map 

appeared to be prepared for fisheries’ purposes or for completely 

unrelated purposes, some of my colleagues across the aisle said 

they were very troubled by your answer. It is really rather remarkable what passes for congressional oversight sometimes. 

We saw a photo of something that seemed to be represented as 

a bit of a smoking gun, an erosion feature in a farm field. And, yet, 

when we had a chance to listen to you, we found that that is actually something that was found to be jurisdictional under the current rules, not under your proposed rulemaking, sort of illustrating 

the problem, the problem we have with the status quo that comes 

to us not through the exhaustive science and public process that 

you have brought to this issue, but it comes to us from policy guidance that was handed down without any process, without any 

science, without any advanced notice or comment from the Bush 

administration in response to some Supreme Court decisions. 

And the guidance that we are left with draws from two different 

Supreme Court Justices’ opinions who had two different ideas 

about how one ought to find jurisdiction under this matter and 

leaves with us a case-by-case analysis that is cumbersome, that has 

been litigation prone, that frankly leaves us with a status quo that 

nobody should be very satisfied about. 

So I am glad you have taken on this tough issue at the request, 

we need to always remember, of stakeholders, of the Supreme 

Court, of so many folks that have asked you to do this. And, again, 

I think you have done very good work. 

I represent a lot of farmers and ranchers, a lot of forestry in the 

north coast of California, and I do continue to hear some of these 

concerns that you have very clearly, I think, spoken to on many, 

many occasions. 

But I just want to ask you one more time: Are there any farming, 

ranching, or forestry discharge activities that are exempt from permitting today that would lose that exempt status because of anything you are doing in this rulemaking? 

Ms. DARCY. No, Congressman. 

Mr. HUFFMAN. All right. And I know we continue to hear concerns about dry washes and even truck tire ruts and things that 

you have clarified many, many times. But I want to ask you where 

you are going with that process of clarification. 

Because, clearly, no matter how many times you say it, it doesn’t 

appear to satisfy the folks who keep trotting out these examples. 

And I think I understand that you are going to try to address this 

through defining the term ‘‘bed and bank.’’ 

57 

We saw a picture, I think, from Senator Capito that was represented as a dry wash. But, to me, it looked like it might have 

had a bed and bank. I don’t know. But I think we have heard that 

you may be in the process of providing some real definition of this 

‘‘bed and bank’’ standard, science-based definition. 

Can you just tell us what we might expect in the final rule on 

that point? 

Ms. DARCY. Because of the public comment on that issue in particular—because that is part of the definition of ‘‘tributary,’’ which 

is being defined for the first time ever in the Clean Water Act and 

in regulation; and because it was the first time the definition was 

out there and the definition is that it has to have a bed and bank 

and ordinary high-water mark, that is getting a lot of comment. 

Part of the comment is, ‘‘So further define that.’’ I think, in response to public comments, that is probably a challenge for us to 

address in the final rule. 

Mr. HUFFMAN. So you think we can expect some specific definition of this ‘‘bed and bank’’ standard? 

Ms. DARCY. I think we need to consider it, especially because it 

has raised concerns. And, again, we are trying to get certainty and, 

if we can get better certainty, that is the way to do it. 

Mr. HUFFMAN. All right. Thank you. 

Mr. GIBBS. Senator Carper, you are recognized for 5 minutes. 

Senator CARPER. Thanks, Mr. Chairman. 

It is great to be here with all of you at FedEx Stadium. This is 

a big room. And it is nice to be with my—some of my former House 

colleagues with whom I served a number of years ago. 

It is nice to see you from afar, from all the way up here to down 

there. To our Administrator and to our Assistant Secretary, thank 

you for coming today and for hanging in here for all of this time. 

I think you are just the first panel, which has been a pretty long 

morning, I am sure, for you. 

I have just come from a hearing on Homeland Security and Governmental Affairs Committee and we focused on the President’s action with respect to immigration and providing some protections, if 

you will, for those that are here in certain status as opposed to others that are not allowed to stay any longer. 

And one of the messages that came out of that hearing was the 

reason why we are having that hearing in the Homeland Security 

and Governmental Affairs Committee is because the Congress 

hadn’t done its job, that we didn’t pass comprehensive immigration 

reform, and if we had, the issues that we were discussing would 

have been moot. 

And I think there is a parallel here. And I think the parallel is, 

if we had done our job, if we had actually passed legislation to provide for the clarification that was needed following some Supreme 

Court intervention, we wouldn’t be holding this hearing. Is that 

correct? 

Ms. MCCARTHY. It could have reduced some of the existing confusion, that we can and will reduce the regulatory action as well. 

Senator CARPER. All right. I am really tempted to ask what is a 

question that you wish had been asked you. Let me ask that. What 

is a question you wish had been asked? Out of all of the questions 

58 

fielded today, what do you wish you had been asked that never was 

asked? Anything at all? Did we exhaust everything? 

Ms. MCCARTHY. I actually was going to say: Would you like a 

bathroom break? But I thought that would be too rude at this point 

in time. 

Senator CARPER. Well, in that case, I will hurry this up. 

All right. Can both of you name for us two concerns that you 

have heard from stakeholders that you intend on addressing in the 

final rule. Each of you, two. A double shot, if you will. Two concerns that you heard from stakeholders that you intend on addressing in the final rule. 

Ms. DARCY. The continued lack of clarity, which is what we are 

attempting to do in the rule, was to be more clear and definitive 

about, as Gina has continued to say, what is in and what is out. 

And I think that is what we have to continue to look to improve 

upon in the proposed rule. 

That, as well as how we can better cut down the time that permits take. And I think, by providing some more clarity and definition, we might be able to get after that as well. 

Senator CARPER. All right. Thank you. 

Ms. MCCARTHY. Let me just add, the definition of ‘‘tributary’’ and 

how it relates to ephemeral streams is extremely important, how 

that all relates to erosional features that are exempt, are excluded, 

from the Clean Water Act jurisdiction. I think people have asked 

for more clarity on significant nexus. I think we need to provide it. 

And the ditch issue, it drives me crazy, as it does everybody else. 

So there is a lot of issues that have been raised around ditches, 

and we need to be very clear about the fact that we are not just 

respecting the current exemptions, but we are expanding on those. 

But we are also defining those unique ditches that actually deserve 

to be protected from pollution and destruction through a normal 

permit process. 

Senator CARPER. All right. Good. Thank you for that. 

It is my understanding that attorney generals from, I think, a 

half dozen or more States, including my own State, former Delaware Attorney General Beau Biden who just stepped down a month 

or so ago. But I understand that they sent a letter to the EPA and 

the Army Corps—I want to say last September—and in their letter 

they were in support of the waters of the U.S. proposal. 

In that letter, the AGs pointed out the need for predictability. 

They spoke to the need to address discharges that can happen in 

one State, but impact States downstream. 

And I just want to say: Is that correct? Just yes or no. Is that 

a fair statement? 

Ms. MCCARTHY. I believe so. 

Senator CARPER. However, I understand the EPA has also heard 

from other States with extreme concerns over the rule. I am sure 

you have heard that today. 

Why do you believe there is such a diversity of views from State 

to State on this issue? Do you believe this rule does provide needed 

predictability? And do you believe that there are some changes that 

you can make in the final rule to address some of the concerns we 

are hearing from these other States? 

59 

You already answered the second question, in part, because you 

told me you actually think some followup needs to happen. So why 

such a disparity? I mean, you have got some States that say, ‘‘This 

is good; let’s do this,’’ and other States who raise all kind of heck 

about it. 

Ms. MCCARTHY. I think it points out that there is a tremendous 

amount of lack of clarity and uncertainty today. And so part of it 

is, I think, when we explained what is actually jurisdictional today, 

some people were surprised by that. 

And when we tried to explain exclusions, they didn’t understand 

that that list was not exhaustive. So if they didn’t see themselves 

in the exclusions, even though it was much larger than current exclusions, they thought we were sending a signal that they weren’t 

excluded. 

So there was a lot of misinformation and legitimate misunderstandings and legitimate need for continued clarity on these issues. 

Senator CARPER. OK. 

Ms. MCCARTHY. And we just need to face that and deal with it 

in the final rule effectively. 

Senator CARPER. Thank you both so much. 

Thank you, Mr. Chairman. 

Mr. GIBBS. Ms. McCarthy, I have a quick question to follow up. 

Ms. MCCARTHY. Yes. 

Mr. GIBBS. You told us you are resolving all these issues before 

the final rule and you are working with the States and stakeholders. 

What specifically is the process for resolving these outstanding 

issues? 

Ms. MCCARTHY. To continue to look at the comments received, to 

continue to have discussions as appropriate and docketed with the 

stakeholders. 

Mr. GIBBS. Are you having interaction with the States? 

Ms. MCCARTHY. Absolutely. Yes, we are. 

Mr. GIBBS. OK. Mr. Mica, you are recognized for 5 minutes. 

Mr. MICA. Well, thank you. 

And let me follow up a little bit with the EPA Administrator. It 

is my understanding that 34 States expressed concern and asked 

for withdrawal or significant revision. 

Is that a correct number? 

Ms. MCCARTHY. It is a—I don’t have any number—— 

Mr. MICA. Well, that is what I am told, 34. It is not—— 

Ms. MCCARTHY. It may be, but—— 

Mr. MICA. It is not just a few States. It is 34. 

Ms. MCCARTHY. The only thing I would indicate is that the same 

States—— 

Mr. MICA. And 34 is about two-thirds of the States. I think we 

still have 50 States. Seems like it is a significant number. 

How long have you been working on this proposed rule? 

Ms. MCCARTHY. When did we first propose it? Last April in 2014. 

But certainly well beyond that. 

Mr. MICA. And you came out with your proposed language and 

consulted different folks, States, which aren’t happy. 

When was the exact date you came out with your proposed rule? 

Ms. MCCARTHY. April 21st of 2014. 

60 

Mr. MICA. 2014. 

Ms. MCCARTHY. But that reflected the guidance document 

that—— 

Mr. MICA. And how much longer would you take before you finalize the decision on the rule? 

Ms. MCCARTHY. We have not finalized the decision. 

Mr. MICA. No. I want to know how much longer it would take 

to come out with a final rule. What is your prediction? 

Ms. MCCARTHY. Well, we are hoping to propose it—we are hoping to finalize it this spring. I do not have an exact date. 

Mr. MICA. This spring. OK. But I am trying to get some time. 

Ms. MCCARTHY. Sure. 

Mr. MICA. I did everything I could to block changing the law 

after the Supreme Court decision because there were other definitions. I found in that discussion that one of the things that happens—and I heard earlier testimony from the Corps of Engineers 

that there is some significant impacts. 

In fact, you testified earlier, didn’t you, Corps representative, 

that there will be additional costs, additional services required of 

the Corps, to take on this new responsibility? 

Ms. DARCY. There will be some additional implementation costs 

if the rule is finalized. Yes. 

Mr. MICA. OK. So there is additional cost. 

One of the things that concerns me—maybe the big corporations 

can comply with this. First of all, having been in business, when 

you change this rule, you are going to create legal havoc because 

you are changing years and years of law and definitions. 

And there is—you talk about clarity. Well, when you adopt a new 

rule with new language, it creates uncertainty. It creates lawsuits. 

It will create havoc for many businesspeople. And maybe the big 

guys can handle this. The small guys can’t handle it. 

What concerns me, too, the information we have is the Small 

Business Administration’s Office of Advocacy recently concluded 

that EPA and the Corps have improperly certified the proposed 

rule under the Regulatory Flexibility Act because it would have direct and significant effects on small business. This isn’t something 

I am saying. This is what they are saying. 

So, again, the small guy is going to get screwed—pardon—that 

is a highly technical term, but—with whatever you do because it 

will be new. It will be subject to suit. It will be subject to interpretation. It will be subject to new regulation which you are imposing 

that has a cost. 

So the ones that were—you know, what is the biggest job creator 

in the United States? Do you two know? Where do we get the most 

jobs from? Do you know? 

Ma’am? 

Ms. MCCARTHY. Small businesses is what I understand. 

Mr. MICA. Small business. 

And according to, again, their advocacy group, they don’t feel 

consulted. They don’t even feel that you complied with the requirements to consult them. 

So any change, I think, is going to raise havoc and some costs 

documented here, uncertainty. Possibly there are things that we 

need to do for improvement. And I think you can do many of those 

61 

things for water quality in this country without changing this definition. 

Again, if you implement the rule—if you adopt the rule this 

spring, when would it be implemented? 

Ms. MCCARTHY. It would be effective on publication in the Federal Register. 

Mr. MICA. So everyone would have to comply with that. That is 

kind of handy-dandy because that is the rule. You create the chaos, 

the uncertainty, the havoc. 

We could pass a bill, and I think there is enough support to pass 

a bill in the House and Senate to undo your rule. More than likely, 

that will take time. We have seen the slow roll on Keystone. 

Did you want to comment or—— 

Ms. MCCARTHY. I just wanted to—I neglected to indicate that it 

is actually 60 days beyond that date, which does allow Congress to 

take a look at it. 

Mr. MICA. OK. That is probably even worse. 

But, in any event, what that does is give the President a bill that 

will rescind what you are doing. I predict that will happen. And 

then the President would veto it, and it will be much more difficult 

for us to override that veto. 

That is the scenario I see, Mr. Chairman, and it is not a pretty 

one for small business or anyone who is concerned with Government regulations or its impact. 

Mr. GIBBS. The gentleman’s time has expired. 

Just for a point of information, they will be calling votes here in 

the next 15, 20 minutes, and we are monitoring that. So we will 

break for a recess when it is the appropriate time so nobody misses 

votes. 

Mr. Garret Graves, you are recognized for 5 minutes. 

Mr. GRAVES OF LOUISIANA. Thank you, Mr. Chairman. 

Thank you very much for being here today. Good to see you. And 

I also appreciate your perseverance through this hearing. I know 

you have been sitting there a long time, so thank you. 

I am from south Louisiana and have very strong concerns about 

the approach that you are taking in the rule and the regulation. 

I think we all know, if you look back at the statute, the Clean 

Water Act, you have the reference to ‘‘navigable waters.’’ And you 

have seen the Supreme Court come in and repeatedly narrow or reject the rules that have been promulgated in an effort to regulate 

wetlands in particular. 

I am concerned that we are actually headed down the same 

course right now with this proposed regulation, that we are going 

to see a perhaps third rejection and narrowing of the regulations 

as it pertains to the Clean Water Act. And I think that probably 

what is happening is that the agencies are writing a rule in an effort to try to recapture a similar scope and just taking a different 

direction, as happened after SWANCC, as I recall. 

In particular, you know, I want to focus on the word ‘‘navigable.’’ 

That word, you know, it seems that we may have a disconnect in 

the statute versus what you often referred to was the science. And 

if that disconnect is there, it seems like it is Congress’ job to actually modify the statute if that is something that Congress and the 

agencies believe need to be done. But I am concerned that we are 

62 

stretching these regulations in order to create the same footprint— 

in fact, perhaps a growing footprint. 

An example of that is your own cost analysis that you have done 

that has been, I guess, rejected or some concerns have been expressed by small business, among others, showing that you actually 

have a higher regulatory cost. I don’t understand how you have a 

higher regulatory cost if you have more certainty, greater certainty, 

and if you do not have an expanded footprint of jurisdiction here. 

That seems to be inconsistent, and I am very concerned about that. 

Secondly, when you actually go through and read the regulation, 

you have terms like ‘‘case-specific basis,’’ ‘‘significant nexus’’ that I 

note was part of the Kennedy statement, not part of the plurality 

opinion. You have comments like ‘‘waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water.’’ 

This is Louisiana. The whole thing is water. You could take some 

of these terms that you have in here, ‘‘tributary,’’ ‘‘ephemerals,’’ you 

could apply—I am going to guess that, if you look at this, you could 

probably give me 90 percent of the undeveloped property in south 

Louisiana and I could figure out a way to apply your proposed rule 

to south Louisiana. Nationwide permits don’t apply down there. We 

have much greater compliance challenges. 

This is your own—Assistant Secretary Darcy, I am sure you recognize this one. This is your picture of the watershed. 

And, Mr. Chairman, I want to ask for—hang on, I am getting 

ready to ask unanimous consent to get double pay for holding my 

own placard. But—thank you. I am sorry. 

No, but this is your own picture of the watershed. We have everywhere from Montana to New York coming down and draining 

through south Louisiana. That gives you an idea of why this first 

map looked like it did. 

If you look at the definitions that you have here and you say 

things like—you talk about tributaries ‘‘even if they lack a bed and 

banks or ordinary high-water mark,’’ and it says, ‘‘if they contribute flow.’’ Well, again, I think that if you wanted to—and, Administrator McCarthy, I am not saying that you are going to be 

egregious or do bad things, but if you wanted to, I think that you 

could absolutely take some of these terms and stretch them to 

apply to virtually anything here, which doesn’t provide certainty or 

clarity, especially when you combine it with some of the other 

terms that are used. 

You also have a term in there that was interesting that pertained to—it said something about areas that were established 

through sediment deposition. Well, over on the left, that is Louisiana 60 million years ago, and, as you can see, it doesn’t exist, 

because the entire State was created through a deltaic plain 

through the Mississippi River system. 

Again, not saying you are trying to be egregious or regulate my 

house, but, potentially, if someone wanted to be egregious, I am 

concerned that could be the case. 

Lastly—and I think this is one of the bigger ones. This is south 

Louisiana. And I want to be clear, Administrator—and Assistant 

Secretary Darcy and I have known each other for a while, but I am 

not a knuckle-dragger. I am not a guy who is sitting here saying, 

63 

let’s pave all the wetlands. I believe that in my previous life I have 

probably restored thousands of acres of wetlands and probably, in 

the last 6 years, more than your two agencies combined, 

uncompelled, not for mitigation purposes, because it was my job. 

And so I am a big believer, defender of wetlands. 

But we have lost 1,900 square miles of wetlands in south Louisiana. The big concern that I have is that the majority of this loss 

is attributable to channelization of the Mississippi and Atchafalaya 

Rivers. That was an action of the U.S. Army Corps of Engineers. 

This is the greatest historic, current, and prospective rate of jurisdictional wetlands loss in this Nation. And the agency that is 

now being charged with the actual administration of these regs, 

these potential regs, is the greatest cause of wetlands loss in the 

United States. 

The hypocrisy there and the lack of credibility is, I think, one of 

the greatest concerns. Because the Federal Government, the Corps 

of Engineers has not come in and restored these wetlands. They 

have made our communities more vulnerable, and it is a great concern on the part of the residents of south Louisiana. 

Thank you. 

Mr. GIBBS. The gentleman’s time has expired. 

Mr. Perry, you are recognized for 5 minutes. 

Mr. PERRY. Thank you, Mr. Chairman. 

Over here. Ladies, thank you very much for your patience. I 

know it’s been a long day. And I think that is maybe a testimonial 

to how important this subject is to everybody and every State and 

every Representative in every State. We really can’t help ourselves. 

And, with all due respect, I think that—I come from Pennsylvania—when you say that the Agency has worked hand-in-hand, 

my experience as a civilian, as a legislator in Pennsylvania is that 

we have felt put upon by the Agency and in a very heavy-handed 

way that has been punitive and that has been uneven in its meting 

out of penalties and of solution sets that we have been forced to 

abide by. 

And so, because of that, we have, I think, a reasonable trust 

issue. And because of the scope of this—and when the Agency characterized ‘‘navigable’’ in the same context as ‘‘subsurface connections,’’ you know—I said to a lady at a hearing in Altoona on this 

subject, I said, so you are telling me that the water that flows 

through the rock strata and the limestone of Pennsylvania is to be 

considered navigable, and it is navigable? And she said, yes, it is. 

I said, well, I am waiting for the submarine that is drilling through 

the rock and doing that, because I haven’t seen one yet, but maybe 

DARPA has one. And so we are skeptical. 

But, with that, I want to give you a couple questions here. 

You know, we have a clean streams law that gives our DEP jurisdiction over all the Commonwealth’s waters. And, under this 

rule, there will be overlap in that jurisdiction, with this clarification, as you call it. And, of course, there is going to be confusion 

and costs with the additional layer, what we consider an additional 

layer of regulatory authority. 

Under the proposed rule, will Pennsylvania now only have jurisdiction over those waters specifically excluded from inclusion in the 

64 

rule, i.e., or what I would characterize as groundwater and ditches 

that drain uplands only? 

Ms. MCCARTHY. I am not sure I understood the question because 

you had a couple of negatives in there. Can you just do it again? 

Mr. PERRY. OK. I will try and be more clear. 

Ms. MCCARTHY. OK. 

Mr. PERRY. Under the proposed rule, will Pennsylvania now only 

have jurisdiction over those waters specifically excluded from inclusion in the rule? So everything that is specifically excluded would 

be under Pennsylvania’s jurisdiction, i.e., what we—and I clarify 

that by saying groundwater and ditches that drain upland only. 

Ms. MCCARTHY. No, that wasn’t the intent. If you are excluded 

from the Clean Water Act in the final rule, then that would not be 

jurisdictional under Federal law. 

Mr. PERRY. OK. And that is a concern. 

In addition to that, during and after local development, who has 

jurisdiction over swales, basins, ponds, and ditches that will be constructed, altered, filled in, left for drainage, and/or questioned? And 

how will the answer to those questions—how will they come about? 

What is that process? And who is paying for that? 

Ms. MCCARTHY. Nobody is changing who has jurisdiction to implement the rule or the relationship between the Federal Government and the States to actually address these Federal issues. Nothing has changed. 

Mr. PERRY. So if during—— 

Ms. MCCARTHY. It—— 

Mr. PERRY. I am sorry. 

Ms. MCCARTHY. I am sorry. I just wanted—it is a function of the 

Clean Water Act and how it is implemented today. 

Mr. PERRY. So if during construction there is a nexus made by 

what is now not considered navigable but someone considers it, 

some—the Corps comes out—I have done work with the Corps; I 

used to fly with them and do jurisdiction and so on and so forth— 

and comes out and says, this falls within the jurisdiction, and the 

local conservation district says, no, it doesn’t, what is the answer? 

What is the redress? 

Because somebody is standing there with a machine that costs 

$500 a day and workers and so on and so forth, and here we are. 

So what is the conclusion to that? What is the process for adjudication? 

Ms. DARCY. If a person is seeking a permit or seeking a jurisdictional determination of a water in order to go forward with a construction project of some kind, the Corps of—— 

Mr. PERRY. With all due respect, what happens is that somebody 

comes and visits during the project and makes the claim at that 

time, at that location, at that time, and everything stops until it 

is resolved. I am looking for the resolution process, if it is being 

changed, or what you foresee based on the scenario that I have portrayed. 

Ms. DARCY. The resolution process that you just portrayed would 

not be changed by this proposed rule. Is that your question? 

Mr. PERRY. If that is your answer, that is fine. That is not what 

people believe, but I will accept your answer. 

65 

And, finally—ah, my time has expired. Thank you, Mr. Chairman. 

Mr. GIBBS. Mrs. Comstock, you are recognized for 5 minutes. 

Mrs. COMSTOCK. Thank you, Mr. Chairman. I have no questions. 

Mr. GIBBS. That speeds it up. 

Mr. Davis, you are recognized for 5 minutes. And I am sure you 

have questions. 

Mr. DAVIS. Thank you, Mr. Chairman. You are correct. 

I wish I had something like a big portrait to have Mr. Graves 

drag his knuckles over here and hold it for me, but—— 

Mr. GIBBS. Well, at least the House pictures got bigger than the 

Senate’s as we went on. 

Mr. DAVIS. We are the House. 

Thank you very much, Assistant Secretary Darcy and Administrator McCarthy, for being here today. 

As this hearing is about WOTUS, you have heard a lot about the 

impact or possible impact of the proposed rule on our ag community, and I think there is really a trust gap between both your 

agencies and our farmers. And that is why one of the things I advocated for in the farm bill was to include agriculture to have a seat 

at the table as part of your EPA Science Advisory Board. 

In my view, it has been a slow rollout. I know applications are 

being accepted till March 30th. And as you review the candidates, 

I want to make it very loud and clear that our intent in negotiating 

this bipartisan provision was to have voices on this committee that 

didn’t only have scientific expertise but also real-life experience 

with production agriculture. So having voices on this committee 

with the real-world experience can help bridge this trust gap. 

Can I have your commitment that you will honor our congressional intent by ensuring that members of this committee will be 

part of production agriculture? 

Ms. MCCARTHY. I certainly will do the best and as expeditiously 

as I can to meet what Congress has advised us we should do. And 

I would look forward to the establishment of this committee so that 

early on in every process we have an ability to hear what these informed stakeholders have to say. 

Mr. DAVIS. Well, thank you. As the author of that provision, I 

mean, I am clearly stating for the record what our intent is: to 

make sure that we have not just scientists but people involved in 

production agriculture. So thank you. 

Ms. MCCARTHY. But before you leave, I want to make sure that 

you know that we did get a request from our ag stakeholders to extend the time for nomination by 60 days. 

Mr. DAVIS. Yes. 

Ms. MCCARTHY. So I don’t want you to think we are being inconsistent in—— 

Mr. DAVIS. I am not complaining about the process. 

Ms. MCCARTHY. OK. 

Mr. DAVIS. I just want you to know the intent of what the result 

could and should be. 

Secondly, I sent a letter to your agency on January 22nd in regards to the Mahomet Aquifer and its proposed designation to be 

considered a sole-source aquifer. That aquifer in central Illinois actually serves over 700,000 people. And I would like you—I will subVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
66 

mit this letter to you and your staff to make sure your eyes see 

this. And I would like to get an update from you, even after this 

hearing, as to when we could expect a decision on this very important issue to my constituents. 

Ms. MCCARTHY. I am happy to look into it. Thank you. 

Mr. DAVIS. Thank you. 

And, lastly, there has been some concern being raised by many 

of my colleagues, and I hope that this process is taken very seriously, about this disconnect that we sometimes feel like we see. 

And not just between the EPA as a whole and the Corps as a whole 

and all of our districts; really, I think there is some disconnect between what happens and what you think is happening out here in 

Washington versus what your regional offices, your district offices, 

are actually doing on the ground. 

And just one of the last hearings we had with one of your deputies, Mr. Perciasepe—forgive me if I have mispronounced his name. 

‘‘Davis’’ is easier. 

Ms. MCCARTHY. We will call him ‘‘Mr. P.’’ It is OK. 

Mr. DAVIS. ‘‘Mr. P,’’ perfect. I haven’t gotten any feedback from 

him when I asked him if, in this new provision, the clarification for 

sewage treatment facilities, if it includes aboveground individual 

septic system units. Will they be required to get a permit? 

Ms. MCCARTHY. The clarity is, no, they won’t. 

Mr. DAVIS. OK. Will you please, then, take the extra step and 

call the Region 5 office and let them know that the NPDES permit—— 

Ms. MCCARTHY. You tricked me into this. 

Mr. DAVIS. I tricked him, too. So, obviously, he didn’t talk with 

you after that. But if you could—— 

Ms. MCCARTHY. If there is any lack of clarity, I will call. 

Mr. DAVIS. Well, I have the frequently asked questions for the 

NPDES permit—— 

Ms. MCCARTHY. OK. 

Mr. DAVIS [continuing]. And it clearly uses the Clean Water Act 

as the justification for asking my homeowners in many rural areas 

that I represent to actually apply through the EPA for this national 

permit just to be able to flush their toilet. 

And where it disconnects with the proposed rule, the clarified 

rule that we have been hearing all morning, is that, you know, 

ditches that are excavated and have less than perennial flow are 

supposed to not be regulated under the Clean Water Act. That is 

where many of these discharges go, like in a swale between my 

home. And gullies and rills and nonwetland swales are not to be 

regulated. 

So you can see the disconnect and the concern that my constituents have when we see what is happening out here, what we are 

being told, versus what is actually in action in the district. So—— 

Ms. MCCARTHY. Let me look at it and make sure that there isn’t 

more to this than meets the eye. And I will certainly get back to 

you as soon as—— 

Mr. DAVIS. I didn’t mean to throw Mr. P under the bus with you, 

but I am glad I did. 

Mr. GIBBS. The gentleman’s time has expired. 

Mr. DAVIS. Thank you. 

67 

Mr. GIBBS. We have one more Member to ask questions, and 

then we can finish up with this, and we will come back at 2 o’clock. 

Mr. Barletta will have 5 minutes, and then we will recess. We will 

start with the second panel at 2 o’clock. 

Mr. BARLETTA. Thank you, Mr. Chairman. 

Ms. McCarthy, in my flood-prone district, many of my constituents live in the flood plain, and I share the concerns of them and 

the local elected officials about the definition of a flood plain. 

Some of our local officials even sent comments. Here I have comments sent to the EPA about their concerns that the term ‘‘flood 

plain’’ is not clearly defined. And I ask unanimous consent that the 

letter from the Commissioners of Columbia County be part of the 

record. 

Mr. GIBBS. Without objection, so ordered. 

[The information is on pages 462–463.] 

Mr. BARLETTA. Can you define for me right now how this rule interprets the term ‘‘flood plain’’? 

Ms. MCCARTHY. Well, first of all, I think the confusion arose over 

the fact that, when we spoke about flood plain, people thought we 

were regulating land use instead of just indicating that if you intend to pollute or destroy a wetland within a flood plain that we 

need to have an exchange about how to do that appropriately so 

you won’t impact down—— 

Mr. BARLETTA. Is the EPA’s definition of a flood plain the same 

definition that FEMA uses to draw—— 

Ms. MCCARTHY. Yes. 

Mr. BARLETTA [continuing]. Its flood maps—— 

Ms. MCCARTHY. Yes. 

Mr. BARLETTA [continuing]. And determine the 100-year flood 

plain? 

Ms. MCCARTHY. Yes. 

Mr. BARLETTA. Are there maps of your flood plains? 

Ms. MCCARTHY. That they produce. 

Mr. BARLETTA. That who produces? 

Ms. DARCY. FEMA. 

Ms. MCCARTHY. FEMA produces. 

Mr. BARLETTA. And that would be the same definition that you 

use? 

Ms. MCCARTHY. Yes. 

Mr. BARLETTA. You know, in Pennsylvania, agriculture is the 

number-one industry, and I—— 

Ms. MCCARTHY. I certainly didn’t want—I want to make it very 

clear, we did not intend that normal farming and ranching activities would stop being exempt from 404 permitting. They are exempt, and we are not intending to change that. 

Mr. BARLETTA. OK. I just wanted to know the definition of a 

flood plain by your standards, and they are the same as FEMA. 

Ms. MCCARTHY. It is. Yes. 

Mr. BARLETTA. And agriculture is the number-one industry, so 

you can imagine, you know, why the Pennsylvania farmers are so 

worried that, when it rains, that any wet spot within a flood plain 

would be federally regulated. And as I have said once before, sometimes a mud puddle is just a mud puddle. And they would like to 

68 

know that, that that is the case, and that is not how they feel right 

now. 

Ms. MCCARTHY. OK. 

Mr. BARLETTA. I have one more clarification I need. Railroads operate approximately 140,000 miles of right-of-way. Maintenance of 

ditches is critical to safe rail transportation, obviously. Identifying 

rail ditches as ‘‘waters of the United States’’ would create regulatory hurdles that would make it almost impossible for railroads 

to perform prompt rail ditch maintenance due to the extensive permitting delay and expense, leading to less safe rail transportation. 

Previously, representatives from EPA have said railroad ditches 

would not be subject to Clean Water Act jurisdiction under this 

rule. Will the final rule make this clear? 

Ms. MCCARTHY. Senator—Mr. Barletta—sorry—I will get back to 

you. 

I know that we have expanded the definition of ditches that 

would be exempt under the clean water rule to make it clearer. We 

have addressed ditches that basically drain dry land along public 

lands and highways. I am not sure of the conversation that has 

happened with rail ditches, but I certainly can get back to you. And 

if you have heard it, I am hoping there will be a comment in the 

record, and we can take this into consideration and make any necessary adjustments. 

Mr. BARLETTA. Yeah. You would agree that this would cause a 

safety issue, and, obviously, those delays would not be in the best 

interest—— 

Ms. MCCARTHY. We have been really clear in this rule that any 

ditch that is in dry land that doesn’t connect to a tributary below 

is not going to have the significant nexus required to be jurisdictional under the Clean Water Act. 

So we will see. Instead of a sector-by-sector approach, we are 

hoping to do this in a little more scientific and broad way. But we 

will take a look at that issue and make sure that we have addressed it. 

Mr. BARLETTA. And since I am the last speaker, thank God, I 

think it is clear that, from coast to coast, I could tell you, I have 

been called out to farms, I have been called out to you name it, the 

situation where they have literally shown me—I had pictures on 

my cell phone—literally shown me a ditch that is going to be regulated. This is a problem from the east coast to the west coast, and 

I hope we can see that it needs to be addressed. 

Ms. MCCARTHY. It will. Thank you, sir. 

Mr. BARLETTA. Thank you. 

Thank you, Mr. Chairman. 

Mr. SHUSTER [presiding]. This concludes our first panel, so you 

will be excused. 

And we will reconvene—we are recessed for now, and we will reconvene at 2 o’clock with the second panel. 

[Recess.] 

Mr. GIBBS. OK. The committee will come back to order. 

At this time, I would like to call up the second panel of witnesses. It is promptly 2 o’clock, so we are getting started. 

On our second panel, we have the Honorable E. Scott Pruitt, the 

attorney general of the State of Oklahoma; the Honorable Adam H. 

69 

Putnam, Florida commissioner of agriculture, on behalf of the National Association of State Departments of Agriculture; the Honorable Sallie Clark, District 3 commissioner for El Paso County, Colorado, on behalf of the National Association of Counties; the Honorable Timothy Mauck, District 1 commissioner for Clear Creek 

County, Colorado; and Lemuel Srolovic, environmental protection 

bureau chief for the New York State attorney general. 

Hope I got your name right. 

Mr. SROLOVIC. You did. It is a tough one. 

Mr. GIBBS. OK. 

I ask unanimous consent that all witnesses’ full statements be 

included in the record. 

Hearing no objection, so ordered. 

Since your written testimony has been made part of the record, 

please limit your summary to 5 minutes if you can. 

And, Attorney General Pruitt, welcome, and you may proceed. 

Senator INHOFE. Sorry. 

Mr. GIBBS. Go ahead. 

Senator INHOFE. I want to make a brief—it will be a very brief 

introduction. But, you know, a lot of times, you have people from 

your own State come in, and you want to participate in it. In this 

case, this is one who is not just really a great attorney general and 

one who is doing things that other attorneys general are not doing, 

but he also is a best friend. 

So I was delighted, Scott, to have you here and participating in 

sharing your thoughts with us today. 

TESTIMONY OF HON. E. SCOTT PRUITT, ATTORNEY GENERAL, 

STATE OF OKLAHOMA; HON. ADAM H. PUTNAM, COMMISSIONER OF AGRICULTURE, STATE OF FLORIDA, AND ON BEHALF OF THE NATIONAL ASSOCIATION OF STATE DEPARTMENTS OF AGRICULTURE; HON. SALLIE CLARK, COMMISSIONER, DISTRICT 3, EL PASO COUNTY, COLORADO, ON BEHALF OF THE NATIONAL ASSOCIATION OF COUNTIES; HON. 

TIMOTHY MAUCK, COMMISSIONER, DISTRICT 1, CLEAR 

CREEK COUNTY, COLORADO; AND LEMUEL M. SROLOVIC, 

BUREAU CHIEF, ENVIRONMENTAL PROTECTION BUREAU, 

OFFICE OF NEW YORK STATE ATTORNEY GENERAL ERIC T. 

SCHNEIDERMAN 

Mr. PRUITT. Well, you are very kind, Senator Inhofe. Thank you 

for those kind comments. 

Chairmen Inhofe and Shuster, Ranking Members Boxer and 

DeFazio, members of the Senate Committee on Environment and 

Public Works and House Committee on Transportation and Infrastructure, thank you for this opportunity to discuss the Environmental Protection Agency’s proposed rule to redefine ‘‘waters of the 

United States’’ and the significant negative impact such a rule 

would inflict on States and landowners within our borders. 

Respect and protection of private-property rights sets the United 

States apart from other nations and has fueled the greatest expansion of economic freedom the world has ever known. Indeed, private-property rights are among the foundational rights of any functional democracy, not just our own. 

70 

President Obama’s EPA currently stands poised to strike a blow 

to private-property rights through a proposed rule that unlawfully 

expands EPA’s jurisdiction by subjecting land use and water management decisions, historically reserved to the States, to the heavy 

regulatory hand of the Federal Government. 

The proposed rule aims to redefine what constitutes a navigable 

water or ‘‘waters of the United States,’’ a term that has long been 

understood to include only significant bodies of water capable of 

serving as conduits for interstate commerce. The proposed rule redefines those terms to now include virtually every body of water in 

the Nation right down to the smallest of streams, farm ponds, and 

ditches. This is a naked power grab by the EPA. 

Now, don’t get me wrong. The EPA should have a role in solving 

and contributing to interstate water quality issues and answers. 

But when having a role becomes having regulatory primacy at the 

expense of State authority, the will of this body is undermined, and 

landowners and States end up the losers, as they are left to the 

mercy of Agency power, absent a voice, when the system wrongs 

them. And wrong them it will. 

Simply put, the proposed rule is a classic case of overreach and 

flatly contrary to the will of Congress, who, with the passing of the 

Clean Water Act, decided that it was the States who should plan 

the development and use of local land and water resources. 

The EPA has generally been unresponsive to concerns expressed 

by States, local governments, and individual citizens, with their 

primary tactic being a public relations campaign designed to sway 

opinion and rule America. EPA Administrator Gina McCarthy has 

been documented as dismissing many concerns wholesale, calling 

them ludicrous and silly, while also asserting that the proposed 

rule is all about protecting waters, quote/unquote, and providing 

clarification. 

To Administrator McCarthy, who appeared before you today, I 

say, forgive the skepticism of the States, but these reassurances 

are from the same administration that said, if you like your health 

insurance, you can keep your health insurance. So, as the old 

adage says and commends us, trust, but verify. And though we 

would like to trust the EPA’s intent, something doesn’t add up. 

This rule smells far more like—far more than a clarification. Indeed, it reeks of Federal expansion, overreach, and interference 

with local land use decisions. 

Notably, there are several United States Supreme Court decisions illustrating that the intended regulatory jurisdiction of the 

EPA has been limited to the navigable waters of the United States, 

with all other waters rightly left to the States to regulate. 

At the time that the Clean Water Act was passed, the Supreme 

Court had previously defined ‘‘navigable waters of the United 

States’’ as interstate waters that are navigable in fact or readily 

susceptible of being rendered so. 

In recent cases, the Supreme Court has made clear that any examination of Federal jurisdiction must first begin with an understanding that Congress intended the States to retain primacy over 

the development and use of local land and water resources. With 

the proposed rule, the EPA is ignoring this core tenet of the CWA 

and endeavoring to write itself a regulatory blank check. 

71 

On another note, and critically, the proposed rule includes a 

vague catchall category, defeating the EPA’s claimed purpose of the 

rule providing transparency, predictability, and consistency to the 

scope of the CWA jurisdiction. Instead, the EPA has simply redefined the meaning of ‘‘navigable waters’’ in an extraordinarily 

broad way so that any landowner may be subject to owners permitting requirements or severe civil penalties if violated, even if unknowingly. 

Oklahoma has seen firsthand, Senator, how the Federal Government, specifically the EPA, abuses its regulatory power in States 

that have interest in energy, farming, and ranching. The States are 

not and should not be used as a vessel to carry out the will of regulators in Washington, who often seem to have little regard for how 

their actions negatively impact the economy and private-property 

rights. 

During the comment period for this rule, Oklahoma filed its objections. In fact, my office led a coalition of 16 States to file comments about the lawfulness of this rule, or unlawfulness of it. Additionally, as the chief law enforcement officer of the State of Oklahoma, I can say with confidence that, if the EPA continues forward 

with this rule as proposed, the rule will be challenged in court. 

If this rule is issued as proposed, we will all live in a regulatory 

state where farmers must go before the EPA to seek permission to 

build a farm pond to keep their livestock alive, where homebuilders 

must seek EPA approval before beginning construction on a housing development that contains a dry creek bed, and where energy 

producers are left waiting for months or even years to get permits 

from the EPA, costing producers tens, if not hundreds, of thousands of dollars that inevitably will be passed on to consumers. 

Chairmen Inhofe and Shuster, Ranking Members Boxer and 

DeFazio, the EPA’s proposed rule is unlawful and should be withdrawn. We urge the EPA to meet with State-level officials, who can 

help the Agency understand the careful measures the States already have in place to protect and develop the lands and waters 

within their borders. But most of all, we urge the EPA to take note 

of the harm that this rule will do to the property rights of citizens 

across the country and their ability to make land use decisions. 

Thank you, Chairman, for the opportunity to speak to you today. 

Mr. GIBBS. Thank you. 

Mr. Putnam, you have the floor. Welcome. 

Mr. PUTNAM. Thank you, Mr. Chairman. 

And I think I liked the old view better than this view, but I sincerely hope that the plague which has overtaken these two great 

committees will pass quickly, and our prayers will be with the 

Members who are unable to join us for this. 

But it is a pleasure to be on this panel and to represent not only 

the Florida Department of Agriculture and Consumer Services but 

also the National Association of State Departments of Agriculture. 

I come here as a farmer of citrus, a cattleman, a former Member 

of Congress, and an agriculture commissioner and someone who 

has dedicated much of my career to water policy and water resource development issues. I am proud of the record that our State 

has in protecting water, including through agricultural best management practices, putting 10 million acres of agricultural lands in 

72 

the State under best management practices, or 90 percent of our 

intensively managed agricultural lands, and saving 20 billion gallons per year of water through those practices. 

The EPA asserts that the purpose of this rule is to clarify which 

waters are and are not subject to the Clean Water Act. The EPA 

claims that the proposed regulations will not significantly change 

what currently is considered ‘‘waters of the U.S.’’ They also claim 

that the proposed regulations will not substantially affect regulated 

communities like ours. I believe this is yet another attempt by the 

EPA to regulate areas outside their authority and in contradiction 

to guidance given by the courts. 

Counter to the claims by the EPA regarding intent, the proposed 

rule, in fact, will lack clarity, significantly expand Federal jurisdiction, impose burdensome requirements on agricultural producers, 

and impede efforts to protect and restore the environment. 

The proposed rule creates more ambiguity regarding what areas 

are subject to the requirements of the Clean Water Act and will 

most certainly result in an expansion of jurisdiction. Specifically, 

the proposed rule does not clearly define ‘‘adjacent,’’ ‘‘neighboring,’’ 

‘‘riparian area,’’ and ‘‘flood plain.’’ In combination, the application 

of these terms expand Federal jurisdiction to include all wetlands 

or other waters similarly situated across a watershed or that share 

a shallow, subsurface hydrologic connection. 

What is more concerning is the intent by the EPA and the Corps, 

as communicated in their narrative accompanying the rule, to 

evaluate application of ‘‘flood plain’’ and ‘‘watershed’’ on an individual basis. I fail to see how individual interpretation by EPA and 

Corps staff guarantees clarity to the regulated community in the 

implementation of this rule. 

Further, the EPA failed to take into account the unique landscape of States like Florida when developing their approach. Florida’s flat topography and broad expanse of flood plains, wetlands, 

and sloughs could subject nearly all of Florida’s water to Federal 

jurisdiction under the Clean Water Act. 

Under this rule, isolated wetlands located miles from the nearest 

navigable water and never before considered jurisdictional would 

now be defined as ‘‘waters of the U.S.’’ simply because they are located in the same watershed and, therefore, under Federal jurisdiction. Even concrete-lined conveyances and other manmade systems 

intended to capture and treat stormwater could be subject to Federal jurisdiction. 

An independent analysis by Breedlove, Dennis and Associates, an 

environmental firm, found in specific instances where the proposed 

rule, if implemented, would expand jurisdiction from 13 to 22 percent on two parcels alone. 

Across the Nation, farmers and ranchers are good stewards of 

the land, and the expansion of Federal jurisdiction under this rule 

will deem many areas of farmland as ‘‘waters of the U.S.’’ and, 

therefore, subject to Federal jurisdiction. 

With more areas of farmland categorized as ‘‘waters of the U.S.,’’ 

farmers will be forced to obtain new permits, including section 402 

and 404 permits. The requirement to obtain additional permits will 

involve fees for attorneys and technical consultants, whose expertise is required to ensure an accurate application. An independent 

73 

analysis conducted in 2002 revealed that section 404 permits cost 

an average of $338,000, or $300,000 more than the permit required 

for areas not considered ‘‘waters of the U.S.’’ 

As a national leader in water quality protection and restoration, 

the State of Florida works closely with the EPA. And EPA, in the 

past, has actually praised the work that we do as being among the 

most rigorous protections in the Nation. But these proposed requirements will impede and, in some cases, dismantle environmental programs statewide. 

The expansion of Clean Water Act jurisdiction to marginal waters, such as stormwater ditches and ponds, will actually have the 

effect of diverting local, State, and even Federal funds from restoration efforts for truly critically impaired and important natural 

areas. So, instead of funding those priorities, limited resources will 

be diverted toward municipal storm system upgrades. 

Florida’s best management practices are an example where farmers and ranchers work cooperatively and in partnership to improve 

wetlands and watershed areas. The implementation of this proposed rule and the associated expansion of Federal jurisdiction will 

decrease landowner willingness to voluntarily participate in these 

programs. The proposed rule will decrease wetland protection and 

restoration in our State because landowners will now fear that 

their restoration activities will bring them under Federal wetlands 

jurisdiction. 

Thank you, Mr. Chairman, for the opportunity to be here, and I 

look forward to your questions. 

Mr. GIBBS. Senator Inhofe, I recognize you. 

Senator INHOFE. Thank you, Mr. Chairman. 

I would ask unanimous consent that Senator Cory Gardner be 

recognized for the purpose of introducing his good friend Commissioner Clark. 

Mr. GIBBS. So ordered. 

Senator GARDNER. Thank you, Mr. Chairmans. 

And thank you very much to the committee for allowing me to 

be here today to introduce not only Commissioner Clark but also 

to welcome Commissioner Mauck, as well, from Colorado. And I 

know that Senator Bennet was here earlier but, due to scheduling 

conflicts, unable to, so please welcome both of you. 

To the committee, thank you for holding this very timely hearing 

to discuss the EPA-Army Corps of Engineers’ proposed regulation 

on ‘‘waters of the United States’’ under the Clean Water Act as we 

continue to visit this very important discussion. 

It is vital that the Federal Government and Congress have a 

comprehensive understanding of the potential impacts that this 

rule would have on our Nation’s counties, particularly those counties in the western parts of the United States, where our water and 

our water law is unique to any other place in the Nation. In Colorado, it is the only State in the 48 contiguous States that all water 

flows out of and not into, presenting a unique challenge for all of 

us. 

In your effort to do so today, to discuss this issue, I am pleased 

that you have invited Sallie Clark today. And I am honored to introduce Commissioner Sallie Clark of El Paso County, who is testifying on behalf of the National Association of Counties. 

74 

Commissioner Clark serves as the vice president of the National 

Association of Counties and has been a longtime advocate for—and 

recent upgrades, recent new promotions—longtime advocate for 

Colorado, local government, and unwarranted Federal mandates to 

and on our States. 

And I appreciate your willingness and your commitment and 

dedication to public service. 

You know, it has been an incredible, challenging couple of years 

for El Paso County, Colorado, dealing with forest fires and floods. 

And in conversations with water districts, conservation districts in 

Colorado, they continue to believe that, under the ‘‘waters of the 

United States’’ rule, it could be very devastating for their ability to 

deliver water for the needs of their customers, their constituencies, 

and, indeed, the people of Colorado. 

With the EPA’s own studies showing that 68 percent of the 

streams in Colorado are intermittent, this proposal will have major 

impacts on all Coloradans, including the energy and agricultural 

sectors. 

If you go into the State capitol building of Colorado, as both commissioners know, there is a poem written on the wall right in the 

rotunda that says—and it starts out by saying this: ‘‘Here is a land 

where life is written in water.’’ Water is tied to Colorado’s history, 

our land, and our success. And the last thing we need is for the 

Federal Government to destroy that incredible legacy that we have 

with a regulation that goes too far in impacting our agriculture, 

our land, our water, and our people. 

Welcome. 

Mr. GIBBS. Thank you. 

Commissioner Clark, welcome. The floor is yours. 

Ms. CLARK. Thank you, Senator, so much. 

Thank you, Chairmen Inhofe and Shuster, Ranking Members 

Boxer and DeFazio, and members of the committee, for the opportunity to testify today on the ‘‘waters of the United States’’ proposed rule and the potential impact on State and local governments. 

My name is Sallie Clark, and I am the first vice president of the 

National Association of Counties, the only national organization 

that represents county governments. For the past decade, I have 

served as a county commissioner in El Paso County, Colorado, the 

home of Pikes Peak. My county is considered urban, with a population of over 640,000, but with a mix of suburban and rural areas 

and over 113,000 acres of Federal land. 

In all my travels as a NACo leader, I have heard concerns from 

across the country about how counties could be affected by the proposed rule. Hearing these concerns and working closely with our 

technical experts—county engineers, legal staff, public works directors, and stormwater managers—NACo ultimately called for the 

proposed rule to be withdrawn until further analysis and consultation with local officials is completed. This decision was not taken 

lightly. 

I want to be clear: Counties support clean water. Our goal is to 

ensure the public safety and economic vitality of our communities 

while protecting water quality. In my county and others, we accomplish this through zoning and ordinances, regulating stormwater 

75 

runoff, prohibiting illegal discharges, and establishing penalties for 

violations. 

That said, I am here today to share with you the four main reasons we decided to call for the withdrawal of this proposed rule. 

First, this issue is so important because counties build, own, and 

maintain a significant portion of public safety infrastructure, and 

the proposed rule would have direct and extensive implications. 

Local governments own almost 80 percent of all public road miles 

and also own and maintain roadside ditches, flood-control channels, 

stormwater systems, and culverts. Defining which waters and conveyances fall under Federal jurisdiction has a direct impact on 

counties, as we are legally responsible for maintaining public-safety 

ditches and other infrastructure. 

Second, the agencies developing the proposed rule did not sufficiently consult with local governments. Counties are not just stakeholders in this discussion; we are partners in our Nation’s intergovernmental system. By law, Federal agencies are required to consult 

with their State and local partners before a rule is published and 

throughout its development. Although EPA did initiate discussions 

on guidance documents, we were not consulted through the 17 

months between the guidance consultation and the introduction of 

the proposed rule, despite repeated requests. 

This leads to my third point. Due to this inadequate consultation, 

many terms in the proposed rule are vague and create uncertainty 

and confusion at the local level. For example, the proposed rule 

now defines terms like ‘‘tributary,’’ ‘‘significant nexus,’’ ‘‘adjacency,’’ 

‘‘riparian areas,’’ and ‘‘flood plains.’’ Depending on how these terms 

are interpreted, additional public infrastructure could fall under 

Federal jurisdiction. The proposed rule, as currently written, only 

adds to the confusion and uncertainty over how it will be implemented consistently across all regions. 

Our fourth and final reason for calling for the withdrawal is that 

the current permitting process tied to ‘‘waters of the U.S.’’ already 

presents significant challenges for counties. The proposed rule only 

complicates matters. For example, 1 Florida county applied for 18 

maintenance exemptions on the county’s network of drainage 

ditches and canals. The permitting process became so cumbersome 

that the county had to hire a consultant to compile all of the technical material required. And, 3 months later, as the county moved 

into its rainy season and after spending more than half-a-million 

dollars, decisions on 16 of the exemptions were still pending. 

Ditches began to flood, putting the public at risk. And this is just 

one of many examples. 

In conclusion, while many have attempted to paint this as a political issue, in the eyes of county government this is a matter of 

practicality and partnership. We look forward to working with you 

and the agencies to craft a clear and workable definition of ‘‘waters 

of the U.S.’’ that achieves our shared goal, which is to protect water 

quality without inhibiting the public safety and economic vitality of 

our communities. 

Thank you again for this opportunity. 

Mr. GIBBS. I thank you. 

Mr. Mauck, the floor is yours. Welcome. 

76 

Mr. MAUCK. Thank you. Chairmen Inhofe, Shuster, Ranking 

Members Boxer and DeFazio, I appreciate this opportunity to testify. 

My name is Timothy Mauck. I was elected to the Clear Creek 

Board of County Commissioners in 2010 and reelected in 2014. 

As a county commissioner, I want to convey how important clean 

water is for my community. The proposed clean water rule will protect the headwaters, tributaries, and wetlands that are essential 

for providing the high-quality water that supports the hunting, 

fish, rafting, and outdoor recreation that are an economic backbone 

of my community. Clean water from streams and wetlands also 

provide drinking water for thousands of our residents. 

Clear Creek County is truly a headwater county. We are bordered by the Continental Divide and provide clean water for downstream communities within the Denver metropolitan area. We are 

also facing the legacy impacts of historic silver and gold mining. 

We have struggled with maintaining water quality due to mine 

runoff and have worked consistently to treat contaminated water 

and reclaim abandoned mine sites. 

I know too well the impacts of contaminated water and the cost 

and time it takes to mitigate and treat it. I also know Clear Creek 

has made a remarkable rebound over the past 30 years as we have 

all made progress, like so much of the country, toward the Clean 

Water Act goals of fishable, swimmable waters. 

In addition, these strides in water quality, while important in 

their own right, have also made Clear Creek County an outdoor 

recreation destination. By river segment, Clear Creek hosts the second most commercial rafting trips in Colorado. Whitewater rafting 

alone has a total economic impact to the community of approximately $23 million annually. Hunting and angling generates a 

total economic impact of nearly $6 million to the county. 

This is not only the story of Clear Creek but also across Colorado 

and the Nation. According to the National Shooting Sports Foundation, hunting and angling’s total economic impact is $192 billion. 

Outdoor recreation in Colorado generates $13.2 billion and employs 

more than 124,000 people. Across the country, it generates $646 

billion and 6.1 million jobs. 

Many of these jobs are dependent on clean water and will benefit 

from the EPA and Army Corps of Engineers’ efforts. In fact, 55 percent of stream miles in the historic range of native trout in our 

State are intermittent or ephemeral and would clearly be protected 

by the clean water rule. 

Even with seasonal flows, these waters provide habitat for trout 

or simply maintain the water quality needed by fish in downstream 

rivers. And as an avid waterfowler, I have spent many cold mornings in the wetlands, sloughs, and creeks feeding the South Platte 

and know how important it is to protect these places from irresponsible development. 

As an elected official with the responsibility of looking after our 

county’s finances, I am also concerned about undue regulatory burden. The EPA and Corps of Engineers have consistently demonstrated that this rule is not an expansion of the Clean Water Act 

authority. It will restore jurisdiction to fewer of the waters than 

77 

had been covered from the passage of the Clean Water Act in 1972 

until the first Supreme Court decision in 2001 weakened the law. 

During that time period, the population of Clear Creek County 

increased from approximately 5,900 to 9,400 individuals. Colorado’s 

population doubled from 2.2 million to 4.4 million. The State’s 

gross domestic product increased more than tenfold, from $13.6 billion to $181 billion. Furthermore, natural gas production increased 

from 116 trillion cubic feet to 817 trillion cubic feet, and coal production increased from 5,500 short tons to 33,000 tons. 

Although we are small, we are expected to grow in the future. 

An expansion of Interstate 70 is underway and, along with it, a 

growth in home and road development from those from the nearby 

metropolitan area seeking solace in the mountains. 

In addition, we face a challenge of economic diversification as we 

approach the end of life of the Henderson Mine, which provides a 

large portion of our property tax base. There are hundreds of mine 

claims that exist in undeveloped or undeveloped areas, many of 

which are very near headwater streams. The rule will help us balance the need for diversification while providing the necessary protection for streams and wetlands as we encourage development of 

all kinds. 

If opponents of the rule were worried about returning to the previous jurisdiction of the Clean Water Act, they should realize that 

protecting intermittent and ephemeral streams and wetlands is 

fully consistent with population growth, energy production, and 

economic development writ large. I am ready to have my county’s 

headwaters and wetlands clearly protected under the Clean Water 

Act. 

Thank you, Mr. Chairman. 

Mr. GIBBS. Mr. Srolovic, welcome. The floor is yours. 

Mr. SROLOVIC. Thank you. 

Good afternoon, Chairmen Inhofe and Shuster, Ranking Members Boxer and DeFazio, and members of both honorable committees. I am Lem Srolovic, the environmental bureau chief in the office of New York State Attorney General Eric Schneiderman. 

Thank you for this opportunity to discuss with you the proposed 

‘‘waters of the U.S.’’ rule. 

Back when I was a boy growing up in Wildwood, Georgia, in the 

early 1970s, many of the creeks and rivers where I hunted and 

fished were in a sorry state. The Tennessee River was contaminated with toxic industrial waste. When my brother and I floated 

down Lookout Creek, it started stinking when we reached the railway yards in Wahatchee. 

But the pollution problems in my boyhood waters were not local; 

they were not regional problems. They were national problems. Up 

in New York, the Bronx River, once the home of beavers, was described as an open sewer. In central New York, people driving by 

Onondaga Lake during the summer rolled up their windows because the lake smelled so bad. 

Fortunately, Congress responded and in 1972 passed the Clean 

Water Act. With the act, Congress fundamentally rewrote Federal 

water pollution control law. The old law had addressed water pollution by authorizing Federal cures for water pollution problems on 

an ad hoc, water-by-water, problem-by-problem basis, but that narVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
78 

row approach had failed. With the Clean Water Act, Congress replaced that failed scheme with a comprehensive approach to pollution control. 

The waters protected by the act are broad, covering, as the U.S. 

Supreme Court has written, virtually all surface waters in the 

country. With the act, Congress implemented the tried and true 

principle that an ounce of prevention is worth a pound of cure. 

In the ensuing years, the States, EPA, and the U.S. Army Corps 

together have implemented the statute, and it is working. My boyhood Lookout Creek now hosts a popular nature center. A beaver 

has returned to the Bronx River. And Onondaga Lake now is one 

of America’s top 10 bass fishing destinations. 

With the proposed rule, the Federal agencies that Congress 

charged with implementing the Clean Water Act are doing their 

job. They are providing much needed clarification to the question 

of whether the law applies to a particular water body. Presently, 

jurisdiction decisions are made on a case-by-case basis subject to 

fractured and inconsistent legal interpretation by the courts. The 

result is uncertainty, delay, and further litigation. By clarifying 

where the law applies, the rule will accelerate jurisdiction decisions 

and make them more predictable and less costly. 

The proposed rule is grounded in solid, peer-reviewed science. 

EPA’s science report is based on more than 1,200 peer-reviewed scientific studies and has been affirmed by the Agency’s independent 

Science Advisory Board. The science report shows the powerful influence that upstream waters have on the physical, chemical, and 

biological integrity of downstream waters. 

It is important to note that each of the continental States is both 

upstream and downstream of one or more other States. New York, 

for example, is downstream of 13 States and is upstream of 19. The 

proposed rule advances the Clean Water Act’s protection of State 

waters downstream of other States by anchoring a nationwide Federal floor for water pollution control. The floor is critical for maintaining the consistency and effectiveness of the downstream States’ 

water pollution programs. This is because the Federal statute preempts many common-law remedies traditionally used to address 

interstate water pollution, leaving the Clean Water Act as the primary mechanism for protecting downstream States from the effects 

of upstream pollution. 

Critically, by protecting interstate waters, the proposed rule allows States to avoid imposing disproportionate and costly limits on 

dischargers in their own State in order to offset upstream discharges which might otherwise go unregulated. 

A robust Clean Water Act is important to States and municipalities because, by protecting our waters, it keeps billions of dollars 

in taxpayers’ pockets and supports our State economies. In the interest of clean water, the health and welfare of our citizens, and 

the economy of our States, we should not go back to failed approaches. We should go forward with what is working. 

The ‘‘waters of the United States’’ rule provides much-needed 

clarification regarding the applicability of the act and anchors an 

essential nationwide Federal floor for water pollution control. 

We look forward to the completion of a final rule, and I look forward to answering any questions. 

79 

Mr. GIBBS. Thank you. 

I recognize Senator Inhofe for 5 minutes. Thank you. 

Senator INHOFE. Thank you, Mr. Chairman. 

I will start off with my good friend Scott Pruitt. 

Now, confession is good for the soul. I am not a lawyer, and so 

I have to ask some obvious questions of people who are lawyers. 

Now, I want to read something, and tell me, if you would, General, what is ambiguous about this language. 

Section 101(g) of the CWA states—and this is a quote. It says, 

‘‘The authority of each State to allocate quantities of water within 

its jurisdiction and that shall not be superceded, abrogated, or otherwise impaired by this act.’’ 

What is unclear about that? 

Mr. PRUITT. Mr. Chairman, I don’t think much. And I don’t think 

that it takes a legal mind to draw that conclusion. 

I would add this, as well: The CWA states in its text that agencies must recognize, preserve, and protect the primary responsibilities and rights of States to plan the development and use of land 

and water resources. 

This body, Congress, recognized at the creation of the Clean 

Water Act that the role of the States was important, but, more 

than important, it was primary in land use and water management 

decisions. 

In the State of Oklahoma, we have a water resources board that 

is required to measure out permits to those that seek to use water 

in the State. We have a DEQ that is consistently involved in water 

quality issues. 

The decision and the discussion here today is not whether the 

EPA has any role in the process. They, in fact, do. But they only 

have a role when we have navigable waters, interconnectivity, because jurisdiction is at issue here, Mr. Chairman. And I think the 

EPA, through this redefining of ‘‘waters of the United States,’’ is 

seeking to extend its authority to displace and duplicate the States’ 

authority. 

Senator INHOFE. You know, Commissioner Putnam and Commissioner Clark both said statements to the effect that we in Colorado, 

we in Florida want clean land, we want clean air, we want clean 

water. Why do you feel it is necessary to reaffirm that? 

And I won’t ask you to answer it, because I will answer it for 

you. There is this assumption that no decisions are good decisions 

unless they are made in Washington. And whether you picked it 

up or not during the opening statement of the first panel, they 

feel—and those individuals who are embracing their new authorities that they are seeking are ones who do not believe that you are 

capable in the States to do as good a job as they would do in the 

Federal Government. 

What do you think of that? 

Mr. PRUITT. Well, Senator, I think, in many instances, even beyond the Clean Water Act, there are those in Washington that populate the EPA and other agencies that see the States as a mere 

vessel of Federal will. And so long as the States agree with the 

view and the perspective of the agencies here, there is no conflict. 

But when there is disagreement about how decisions should be 

made—and I would add this, decisions that have been reserved by 

80 

this body, by Congress to the States—that is when the competition 

and the conflict arises. 

And that is what we have here. We have a situation where the 

EPA is extending its authority into areas that are historically and, 

I might say, almost exclusively the purview of the States. And they 

are doing so because they want to dictate to the States how we 

should manage our water and use our water. 

Senator INHOFE. Well, I appreciate that. And we live with this 

on a daily basis. 

There is some other language in here I am going to ask the three 

of you to respond to, because when I first read this, I know how 

I interpret it. It says that agencies have told States that these 

rules will not actually provide any certainty because most of the 

decisions are left to the, quote, ‘‘best professional judgment of the 

EPA and the Corps of Engineers.’’ 

What do you think about that language? 

Mr. PRUITT. Well, I think that and also what the commissioner 

mentioned, Mr. Chairman, about the catchall category, there is a 

catchall category the EPA is proposing with this rule that they say 

the purpose is to provide transparency and predictability and consistency with respect to the scope of the CWA, that when it is reduced down to the discretion, the judgment on a case-by-case basis, 

that definitely does not provide certainty and predictability—— 

Senator INHOFE. Uh-huh. 

Mr. PRUITT [continuing]. To those folks that are regulated across 

the country. 

You know, the greatest benefit that we have of rule of law and 

regulation is that those that are subject to regulation know what 

to expect and know how to conform their conduct. And when we 

have decisions made on a case-by-case basis, that is almost impossible to happen. 

And so, Senator, I am very concerned not only about what you 

have raised but also this catchall category that we have already 

identified. 

Senator INHOFE. Yeah. 

And to Commissioners Putnam and Clark, does that phrase concern you as much as it does me? 

Ms. CLARK. Thank you, Senator. 

Yes, it does. And I heard the EPA this morning even say that 

it was confusing; there were a lot of components that are still confusing. 

It broadens the number of county-maintained public safety 

ditches and infrastructure that would require section 404 Federal 

permits, and it is a process that is already cumbersome. There are 

counties across the Nation that I can look to examples where it has 

increased the length of time. The clarity is a problem as to how it 

is being enforced by regions as well as the headquarters. 

And I think we heard today that very thing, that there is ambiguity and confusion, and we need to be at the table to help solve 

that problem. 

Senator INHOFE. Thank you. 

Mr. GIBBS. Mrs. Napolitano, the floor is yours. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

81 

There is an area that we really haven’t delved into, and that is 

the cost of inactivity. And I would like to ask either Mr. Mauck or 

Mr. Srolovic. 

Several comments on the proposed rules have expressed concerns 

about the costs associated with the rule. But in your personal view 

or that of your organization, is there a cost associated with the inactivity when compared to the existing rule? 

Mr. SROLOVIC. Thank you. 

I believe there is a cost, and I think the cost is positive. As 

things exist now, there is fractured conflicting case law. The courts 

have invited the agencies to clarify that through a rulemaking. 

And so I think that, as time goes by and the status quo remains, 

there will be a continuing cost in greater delay of jurisdiction. I 

think the rule will very much help clarify when, in most cases, the 

law applies and when it does not. 

It is not perfect. It is undergoing further work. There has been 

a lot of comments. But I think it will help bring down the cost over 

the status quo. 

Mrs. NAPOLITANO. Mr. Mauck? 

Mr. MAUCK. Yes, if I may. Thank you for the question. 

As a headwater county, we are consistently under scrutiny in 

terms of the water and the water quality that flows out of our 

county and downstream to other users. And for a small county, the 

treatment of that water continues to increase and it becomes very 

expensive for us. 

And the assurances that we could put in place to assure that the 

intermittent streams, the headwater, especially in a former mining 

community like mine where we still have sites out there—that the 

water that is—it is coming down from those streams are protected. 

The cleaner that that water is coming into our systems, the cheaper it is for us, and easier for us to send better quality down the 

hill. 

Mrs. NAPOLITANO. Thank you, sir. 

Mr. Srolovic, suggestion has been made that New York State is 

opposed to the rulemaking. And is this position true? 

Mr. SROLOVIC. Congresswoman, I think there are two points 

here. The answer is no. New York is not opposed to the rule. 

Our environment and agricultural commissioners in New York 

strongly support Agency rulemaking to anchor a Federal water pollution control floor on a national level, which is essential to protect 

States from upstream pollution. The commissioners raised some 

concerns about the lack of pre-rulemaking consultation with States 

and some of the definitions of certain terms in the proposed rule. 

While consultation before is always better than after, the Corps 

and EPA have undertaken significant outreach to States, municipalities, and other stakeholders, holding some 400 meetings around 

the country. One of those was in Worcester, Massachusetts, where 

our office participated and gave views, along with many others, 

about these definitions and the importance of the rule. 

So the agencies also extended their public comment period twice 

and have taken strides to listen to everyone and craft a better, 

clearer rule. 

Mrs. NAPOLITANO. Thank you. 

Mr. Mauck. 

82 

Mr. MAUCK. I am sorry. Could you repeat the question? 

Mrs. NAPOLITANO. Well, the question to you would be the opponents of the rule argue that the process was flawed, that the concerns of the State and local governments were not adequately addressed. 

Were you given ample time and opportunity? I know that they 

have held—like Mr. Srolovic was indicating, there were over 400 

meetings, et cetera. Was there ample opportunity for input? 

Mr. MAUCK. Yes. You know, these discussions have been ongoing 

for a number of years now. But there was a very lengthy—200 days 

for public comment. I believe we have received—there have been 

submitted about 1 million comments. I feel like I have had adequate time. I have been able over the past year to actually address 

this through letters to the editor, as a matter of fact. So absolutely. 

Mrs. NAPOLITANO. Thank you, Mr. Chair. I yield back. 

Mr. GIBBS. I yield 5 minutes to myself. 

Mr. Srolovic, you were talking about that tough name. In your 

testimony, you talk a lot about the need for clarification, and I 

think there is all agreement on that on CWA. 

But, however, I find it interesting. I am looking at the comments 

made by New York State from the environmental department and 

the agricultural department filed on November 13, 2014, and they 

are very concerned about the definitional concerns in the proposed 

rule that prevents New York from providing meaningful comments, 

the impact of the proposal, economic impacts, a one-size-fits-all approach to redefine the regulated waters will only lead to legal challenges, cause unnecessary harm to farmers, and could lead to other 

unintended consequences, and they question the process was inadequate because they weren’t consulted enough. 

So I guess my question is: Are you aware of those comments? I 

think you are. Did you consult with these State agencies, besides 

being the representative in the Attorney General’s Office in the 

State of New York? 

Mr. SROLOVIC. We do represent the State agencies in court and 

on other legal issues. I think the fundamental point raised by the 

commissioners in that letter was that, while there is a need for a 

rule, it is very important for that rule to have as much clarity in 

its terms as possible and, at the same time, maintain a flexibility 

that reflects regional differences. 

In New York, we have a lot of water. We are blessed with a lot 

of water. We have a lot of wetlands. Other States, Colorado, a very 

different circumstance. 

Mr. GIBBS. Yeah. A one-size-fits-all policy I don’t agree with, especially with water. 

But do you agree with these State agencies in your State, that 

this proposal would be an expansion of the regulatory authority of 

the U.S. EPA under the Clean Water Act? 

Mr. SROLOVIC. We do not see it as a significant expansion of the 

jurisdiction of the waters of the United States. We think it codifies 

the principles that have been applied, that it properly interprets 

the guidance that a majority of Justices have provided from the 

U.S. Supreme Court, and is an important step forward. 

83 

Mr. GIBBS. OK. I guess for the other panelists, costs to the counties, States. If this rule, as proposed, goes into effect, what is it 

going to do to the cost of government—for local governments? 

Ms. CLARK. Thank you, Mr. Chairman. I will try and go first and 

be brief. 

Financially, actually, it is—I mean, it is reaching farther out 

based on the ambiguity and the confusion that has been placed on 

the rules. 

If you look at the Small Business Administration’s Office of Advocacy and the analysis that they did, there would be a cost not 

just to small businesses, but to small counties, 50,000 or less, and 

that makes up about two-thirds of the Nation’s population. 

In addition to that, if we look back and look at—the delay of 

projects is a cost to us locally. The longer we delay, then it puts 

safety at risk. It puts water at risk, frankly, and water quality. 

And then the other component of that really is to look back and 

see when the EPA did their analysis and what data they used. And 

it was older data. It wasn’t based on today’s costs in place. So, yes, 

there is a significant cost. 

Mr. GIBBS. I want to get to one more question here. 

I am a firm believer that the CWA was put into place because 

we had major problems. This is what you saw in the earlier panel, 

the Cuyahoga River and all that. The CWA was structured to be 

cooperative federalism between the States and the Feds and with 

the Federal Government in oversight and guidance. That is why 

the States had to submit the 3-year plan of action. 

Maybe Mr. Pruitt or Mr. Putnam might want to comment on how 

that partnership has been working or not working or what the 

process has been of implementing and enforcing the Clean Water 

Act. 

Mr. PUTNAM. I will be brief. 

In answer to your first question, we know from urban counties 

just on stormwater and from an agricultural perspective the number is easily in the billions, easily in the billions. Twenty-percent 

increase in jurisdictional wetlands minimum. 

We know from the previous study that is now 12 years old that 

it costs over $300,000 to get a 404, and we know the wetlands mitigation is $100,000 per acre to mitigate. 

So when you grow the impacted areas and you add the regulatory cost and you add the mitigation factors, it is easily in the 

billions not only for ag, but also for our counties. 

And I will let my attorney general friend speak to the partnership issue. 

Mr. PRUITT. You know, Mr. Chairman, I think that that is the 

concern that you have identified. I think, historically, the relationship has been strong. I mean, in Oklahoma, we have water quality 

issues. The Illinois River in the eastern part of our State, there 

have been ongoing concerns between Arkansas and Oklahoma 

about phosphorus load in that body of water. 

Both the EPA has been concerned about that, but so has the 

State of Oklahoma. We have actually negotiated a memorandum of 

understanding with Arkansas, and we have worked on both sides 

of the border to take regulatory steps to reduce phosphorus levels 

84 

in the Illinois River. And so I think you see examples both at the 

State level and at the Federal level of concern about water quality. 

But here my comments to the panel and to the committee are focused more upon this expanded view of the definition that gives the 

EPA jurisdiction to interpose itself into those areas that are traditional, historical, and, I believe, lawful to the States on primacy. 

And that is what we are seeing on this expanded definition, Mr. 

Chairman. 

Mr. GIBBS. Thank you. 

Mr. Duncan, you are recognized. 

Mr. DUNCAN. Thank you, Mr. Chairman. 

The Rapanos clean water decision was mentioned when I was 

here this morning briefly. Let me read what the Federal district 

judge said in that case. 

He said, ‘‘I don’t know if it is just a coincidence that I just sentenced Mr. Gonzales, a person selling dope on the streets of America. He is here illegally. He is not an American citizen. He has a 

prior criminal record. 

‘‘So here we have a person that comes to the United States and 

commits crimes of selling dope and the Government asked me to 

put him in prison for 10 months. 

‘‘And then we have an American citizen who buys land, pays for 

it with his own money, and he moves some sand from one end to 

the other and the Government wants me to give him 63 months in 

prison.’’ 

And this Federal district judge said, ‘‘Now, if that isn’t our system gone crazy, I don’t know what is. And I am not going to do 

it.’’ 

Well, he was reversed. But it shows you can take any of these 

laws too far. And I can tell you no one is talking about doing away 

with the Clean Water Act or going back to where we were in 1970. 

But it is also ridiculous to act like we haven’t made any progress 

and that things are worse now than they were in the 1970s. So we 

have to make these rules even tougher. 

And I remember, when I chaired this subcommittee, the mayor 

of Los Angeles came to me and he said the EPA was coming down 

with some new regulations about grease. 

And he said, ‘‘We have got over 10,000 restaurants in Los Angeles.’’ He said, ‘‘Most of them are small mom-and-pop restaurants.’’ 

He said, ‘‘This is going to run several thousand of those small 

mom-and-pops out of business.’’ And we got that stopped. 

But I can tell you that people sit up here in Washington and they 

write these rules and regulations. They are mostly people who have 

spent their entire careers in Government. Many of them have spent 

their entire careers here. 

They don’t realize the effect that these rules and regulations— 

most of them help the big giants in the industry, but they really 

hurt the small farmers and the small ranchers and the small businesses. 

And, in fact, the SBA said of this rule that we are talking 

about—the SBA Office of Advocacy put out this statement and said, 

‘‘Small businesses are extremely concerned about the rule as proposed. The rule will have a direct and potentially costly impact on 

small businesses. The limited economic analysis which the Agency 

85 

submitted with the rule provides ample evidence of a potentially 

significant economic impact.’’ 

And, you know, I noticed in the biographies—I was here for an 

hour this morning and I listened to Administrator McCarthy and 

Assistant Secretary Darcy. And I noticed in their biographies neither one of them has ever managed a farm or a ranch or been in 

a small business. 

They just don’t understand the pressures and how difficult these 

positions—these jobs are and how tough it is when you have to 

fight ordinary competition, but then you have to take on your Government that has unlimited funds when you have to take them on, 

to boot. 

And then people wonder why so many small and medium-sized 

businesses go out of business, and all of these college graduates 

wonder why we have so many of them working as waiters and 

waitresses in restaurants because we sent millions of good jobs to 

other countries for the last 40 years or so. 

And a lot of it—an awful lot of it is because of the environmental 

rules and regulations and red tape. And if we don’t wake up and 

realize that, we are going to keep hurting these small businesses, 

these small ranches, these small farms. 

And I just get sick and tired of these bureaucrats sitting up here 

coming up with these rules and regulations that they have no understanding of who it is going to hurt, how much effect it is going 

to have. 

I remember, when I chaired this subcommittee, we had a cranberry farmer from Massachusetts who broke down in tears talking 

about the effect that some of these EPA clean water rules were already having on his farm. 

And to come in and expand them at this point now is just wrong, 

in my opinion. And so I am opposed to it. And I notice that almost 

all the small business groups and almost all of the agriculture and 

farm groups are opposed to it, too. 

Finally, I will just say I think I am the only one here that has 

served with Secretary Putnam. He was a great Member of Congress, and he has got a great future ahead of him in the State of 

Florida. 

I also had the privilege of serving, General, with your Governor, 

and she was a fine Member and outstanding Member of this body, 

also. And I am real proud of the work she is doing as your Governor. 

Mr. Chairman, thank you very much. 

Mr. GIBBS. Mr. Rokita, 5 minutes. 

Mr. ROKITA. Thank you, Chairman. 

It is great to be on your subcommittee. I appreciate being here. 

As you can tell, I am new to the Transportation and Infrastructure 

Committee. That might explain the gap here. 

Mr. GIBBS. This is a full committee hearing here. 

Mr. ROKITA. Right. Right. 

Panel 1, where all of the hubbub was, which, Secretary, that is 

where I had the plague. I had the plague earlier this morning, but 

I am here now. 

I really enjoy being this close because I get to really focus in on 

each of your testimonies and appreciate them. As the former IndiVerDate Aug 31 2005 09:17 Jun 23, 2016 Jkt 000000 PO 00000 Frm 00101 Fmt 6633 Sfmt 6633 P:\HEARINGS\114\FULL\2015\2-4-15~1\93070.TXT JEAN
86 

ana secretary of state, I really looked to county government to help 

solve our problems, just like I think Washington should be looking 

to the States to do the same. 

In fact, I was in Colorado, where I learned about vote centers 

from one of your counties, and I know several Indiana clerks are 

members of NACo. But we took vote centers back to Indiana and 

implemented them there. It was good stuff. 

In that vein, I am surprised to hear a local official like you, Commissioner Mauck, look to the Federal Government almost solely to 

solve your problems. And that is what I got from your testimony, 

whether it was the clean water or the wildlife that helps—that the 

water helps flourish. 

I couldn’t understand when I was listening to your testimony 

why you, as a reelected elected official, feel powerless to solve these 

problems yourself or to go to your State legislature. 

Now, remember, before you answer, unless Senator Gardner was 

wrong—and feel free to correct him—all water flows out of Colorado. Right? So you are in almost a unique or particularly good situation to take care of the situation. 

Why won’t you? 

Mr. MAUCK. Well, like I said in my testimony, Clear Creek County does. We do take an opportunity—we work with the Watershed 

Foundation to clean up a lot of our water. 

Mr. ROKITA. What is the need to expand this definition? 

Mr. MAUCK. The need is the regulatory uncertainty in terms of 

what waters are in, what waters are out, the delays in the permitting as we work through the—— 

Mr. ROKITA. Yeah. I want to talk about the testimony about the 

delays in the permitting. 

This expands the jurisdiction of the Agency over water. So, by 

definition, you are going to get more permits. So how is getting 

more permits—because there is going to be more water under jurisdiction—going to speed up the permitting process? 

The last thing we want to give these agencies—and I don’t just 

mean the EPA. But they all seem pretty inept in terms of turning 

work product around. Why would we give them more paperwork? 

Mr. MAUCK. It is my understanding that this does not expand 

the jurisdiction of the Clean Water Act. 

Mr. ROKITA. Oh. It doesn’t expand the jurisdiction. 

Mr. MAUCK. Does not, is my understanding. 

Mr. ROKITA. Yeah. You state that in your testimony, too. 

But, on the other hand, you suggest that the rule would protect 

intermittent ephemeral streams and wetlands that are currently 

not federally regulated. 

Don’t these arguments contradict each other? 

Mr. MAUCK. They were once regulated before, and I think there 

was more certainty back then with the 2001 and 2006 Court rulings. We have kind of entered this gray area now where we don’t 

understand what is and what is not. 

Now, I am dealing with a small business community that is outdoor recreation-centric and the small mom-and-pop delis and ice 

cream shops that operate on the backs of the rafting companies, 

the outfitter companies, the people that come into camp and recreate and fish and angle. 

87 

Not having certain protections in place and not being clear, to 

me, is rolling the dice on that outdoor recreation industry. And, for 

me, that is all I have after the Henderson Mine for my community. 

But it is a very robust economic engine for not only Colorado, but 

also the rest of the United States. 

Mr. ROKITA. Why couldn’t a county commission ordinance take 

care of this? Why can’t you legislate this yourself? 

Mr. MAUCK. I can’t speak to the legalities. I am not an attorney. 

Mr. ROKITA. That is not a legality. It is called sovereignty of a 

State and, in your situation, sovereignty of a county. 

And you have been elected by people to act. And it sounds like 

what you are doing is saying exactly what Attorney General Pruitt 

was trying to get at where there are people in this country that unfortunately think they have to be vessels of the Federal Government. 

And I am going to let Attorney General Pruitt comment on it and 

Secretary Putnam. We have about 30 seconds, if you can divide 

that. And I appreciate your testimony. I want to see if you have 

anything to add to this exchange we just had. 

Mr. PRUITT. Well, I do want to provide a comment with respect 

to the case law just momentarily. You know, there has been two 

recent decisions, the Solid Waste Agency of Northern Cook County 

and, also, the Rapanos decision that has already been highlighted. 

And in the SWANCC decision, the Court held that the Corps of 

Engineers exceeded its authority by attempting to regulate nonnavigable, isolated, interstate waters. 

In the Rapanos decision, they held that the Corps waters must 

be navigable waters or at least reasonably made to be so. There is 

a reason for that. It is called the Interstate Commerce Clause. 

And this body, Congress, has the authority with respect to issues 

that involve interstate commerce as it relates to water. If you are 

dealing purely with intrastate water that cannot be regionally connected to an interstate body of water, the jurisdiction is exclusively 

within the States. And that is the tension here. 

And so, when you talk about issues of federalism, I agree with 

you, Congressman. I believe that the States are taking and, in fact, 

have taken—I know Oklahoma has done this. We have a robust 

regulatory regime. I have mentioned the Water Resources Board 

and the DEQ working together to deal with land use and management and water quality issues. 

There are issues—and I mentioned one, the Illinois River—with 

phosphorus load that is affecting us from Arkansas, where the EPA 

has jurisdiction, that we should be very leery of an approach that 

yields to the Federal Government a takeover of that land use and 

water quality issues that are reserved to the States presently. 

Mr. GIBBS. OK. Thank you. 

Mrs. Napolitano, do you have something to enter for the record? 

Mrs. NAPOLITANO. Yes, Mr. Chairman. 

There was a statement by Ms. Clark, I believe, that the SBA Advocacy was concerned about the impact this has on small business. 

So I have a release dated October the 2nd from the American 

Sustainable Business Council stating that it appears the SBA is arguing that polluting industries have the right to externalize their 

pollution and harm downstream businesses and communities. This 

88 

organization apparently has 200,000 businesses, 325,000 entrepreneurs, executives. 

I would like to introduce it into the record, please. 

Mr. GIBBS. So ordered. 

[The information is on pages 412–413.] 

Mr. GIBBS. I would like to thank our witnesses for your testimony today. Your contribution to today’s discussion was very insightful and will be very helpful. Hopefully, we are going to address some legislation and we can get something passed. I do believe it is the role of Congress to address this. 

I ask unanimous consent that the record of today’s hearing remain open until such time as our witnesses have provided answers 

to any questions that may be submitted to them in writing and 

unanimous consent that the record remain open for 15 days for additional comments and information submitted by Members or witnesses to be included in the record of today’s hearing. 

Without objection, so ordered. 

Any other Members have anything else? If not, then the meeting 

is adjourned. 

[Whereupon, at 3:03 p.m., the committees were adjourned.] 

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463 

Æ 


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