[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

FORTY YEARS AFTER THE CLEAN WATER ACT:
IS IT TIME FOR THE STATES TO
IMPLEMENT SECTION 404 PERMITTING?

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

(112-106)

HEARING

BEFORE THE

SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT

OF THE

COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

__________

SEPTEMBER 20, 2012

__________

Printed for the use of the
Committee on Transportation and Infrastructure

Available online at: http://www.gpo.gov/fdsys/browse/
committee.action?chamber=house&committee=transportation

U.S. GOVERNMENT PRINTING OFFICE
76-147 WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

JOHN L. MICA, Florida, Chairman

DON YOUNG, Alaska NICK J. RAHALL II, West Virginia
THOMAS E. PETRI, Wisconsin PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee ELEANOR HOLMES NORTON, District of
FRANK A. LoBIONDO, New Jersey Columbia
GARY G. MILLER, California JERROLD NADLER, New York
TIMOTHY V. JOHNSON, Illinois CORRINE BROWN, Florida
SAM GRAVES, Missouri BOB FILNER, California
BILL SHUSTER, Pennsylvania EDDIE BERNICE JOHNSON, Texas
SHELLEY MOORE CAPITO, West Virginia ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio LEONARD L. BOSWELL, Iowa
CANDICE S. MILLER, Michigan TIM HOLDEN, Pennsylvania
DUNCAN HUNTER, California RICK LARSEN, Washington
ANDY HARRIS, Maryland MICHAEL E. CAPUANO, Massachusetts
ERIC A. ``RICK'' CRAWFORD, Arkansas TIMOTHY H. BISHOP, New York
JAIME HERRERA BEUTLER, Washington MICHAEL H. MICHAUD, Maine
RANDY HULTGREN, Illinois RUSS CARNAHAN, Missouri
LOU BARLETTA, Pennsylvania GRACE F. NAPOLITANO, California
CHIP CRAVAACK, Minnesota DANIEL LIPINSKI, Illinois
BLAKE FARENTHOLD, Texas MAZIE K. HIRONO, Hawaii
LARRY BUCSHON, Indiana JASON ALTMIRE, Pennsylvania
BILLY LONG, Missouri TIMOTHY J. WALZ, Minnesota
BOB GIBBS, Ohio HEATH SHULER, North Carolina
PATRICK MEEHAN, Pennsylvania STEVE COHEN, Tennessee
RICHARD L. HANNA, New York LAURA RICHARDSON, California
JEFFREY M. LANDRY, Louisiana ALBIO SIRES, New Jersey
STEVE SOUTHERLAND II, Florida DONNA F. EDWARDS, Maryland
JEFF DENHAM, California
JAMES LANKFORD, Oklahoma
REID J. RIBBLE, Wisconsin
CHARLES J. ``CHUCK'' FLEISCHMANN,
Tennessee
VACANCY

(ii)

Subcommittee on Water Resources and Environment

BOB GIBBS, Ohio, Chairman

DON YOUNG, Alaska TIMOTHY H. BISHOP, New York
JOHN J. DUNCAN, Jr., Tennessee JERRY F. COSTELLO, Illinois
GARY G. MILLER, California ELEANOR HOLMES NORTON, District of
TIMOTHY V. JOHNSON, Illinois Columbia
BILL SHUSTER, Pennsylvania RUSS CARNAHAN, Missouri
SHELLEY MOORE CAPITO, West Virginia DONNA F. EDWARDS, Maryland
CANDICE S. MILLER, Michigan CORRINE BROWN, Florida
DUNCAN HUNTER, California BOB FILNER, California
ANDY HARRIS, Maryland EDDIE BERNICE JOHNSON, Texas
ERIC A. ``RICK'' CRAWFORD, Arkansas MICHAEL E. CAPUANO, Massachusetts
JAIME HERRERA BEUTLER, Washington, GRACE F. NAPOLITANO, California
Vice Chair JASON ALTMIRE, Pennsylvania
CHIP CRAVAACK, Minnesota STEVE COHEN, Tennessee
LARRY BUCSHON, Indiana LAURA RICHARDSON, California
JEFFREY M. LANDRY, Louisiana MAZIE K. HIRONO, Hawaii
JEFF DENHAM, California NICK J. RAHALL II, West Virginia
JAMES LANKFORD, Oklahoma (Ex Officio)
REID J. RIBBLE, Wisconsin
JOHN L. MICA, Florida (Ex Officio)

(iii)

CONTENTS

Page

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

TESTIMONY
Panel 1

David K. Paylor, Director, Virginia Department of Environmental
Quality, and Vice-Chair, Water Committee, Environmental Council
of the States.................................................. 10
Jeff Littlejohn, P.E., Deputy Secretary for Regulatory Programs,
Florida Department of Environmental Regulation................. 10
George Elmaraghy, P.E., Chief, Division of Surface Water, Ohio
Environmental Protection Agency, and Member, Association of
State Wetland Managers......................................... 10
William Creal, Chief, Water Resources Division, Michigan
Department of Environmental Quality, and Board Member,
Association of Clean Water Administrators...................... 10
Todd L. Ambs, President, River Network........................... 10

Panel 2

Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works.. 32
Denise Keehner, Director, Office of Wetlands, Oceans, and
Watersheds, U.S. Environmental Protection Agency............... 32

PREPARED STATEMENTS SUBMITTED BY WITNESSES

David K. Paylor.................................................. 49
Jeff Littlejohn, P.E............................................. 57
George Elmaraghy, P.E............................................ 60
William Creal.................................................... 69
Todd L. Ambs..................................................... 76
Jo-Ellen Darcy................................................... 85
Denise Keehner................................................... 98

SUBMISSIONS FOR THE RECORD

Hon. Bob Gibbs, a Representative in Congress from the State of
Ohio, request to submit the following into the record:

Mike Carey, Ohio Coal Association, letter to Scott Nally,
Director, Ohio Environmental Protection Agency, regarding
Ohio Coal Association opposition to Ohio EPA's request for
authority to pursue delegation under Section 404 of the
Clean Water Act, March 7, 2012............................. 107
Patrick Jacomet, Executive Director, Ohio Aggregates &
Industrial Minerals Association, letter to Scott Nally,
Director, Ohio Environmental Protection Agency, regarding
amendment to SB 294, March 13, 2012........................ 109
Jeanne Christie, Executive Director, Association of State
Wetland Managers (ASWM), testimony for the record.......... 110
Includes the following materials:

ASWM Fact Sheets on Clean Water Act Section 404 State
Assumption............................................. 112
``Clean Water Act Section 404 Program Assumption: A
Handbook for States and Tribes,'' prepared by ASWM and
Environmental Council of the States, August 2011....... 123
Peter S. Silva, Assistant Administrator, U.S.
Environmental Protection Agency, letter to R. Steven
Brown, Executive Director, Environmental Council of the
States, and Jeanne Christie, Executive Director, ASWM,
December 27, 2010...................................... 160
Hon. Timothy H. Bishop, a Representative in Congress from the
State of New York, request to submit letter to Hon. Bob Gibbs
from William J. Snape III, Senior Counsel, Center for
Biological Diversity, and Professor and Practitioner in
Residence, American University, Washington College of Law,
September 19, 2012............................................. 5
Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works,
responses to questions for the record from:

Hon. Chip Cravaack, a Representative in Congress from the
State of Minnesota......................................... 93
Hon. Bill Shuster, a Representative in Congress from the
State of Pennsylvania...................................... 93

ADDITIONS TO THE RECORD

John Jaschke, Executive Director, Minnesota Board of Water and
Soil Resources, letter to Hon. Bob Gibbs, September 27, 2012... 162
Collin O'Mara, Secretary, Delaware Department of Natural
Resources and Environmental Control, letter to Hon. Bob Gibbs,
September 27, 2012............................................. 164

[GRAPHIC] [TIFF OMITTED] T6147.001

[GRAPHIC] [TIFF OMITTED] T6147.002

[GRAPHIC] [TIFF OMITTED] T6147.003

[GRAPHIC] [TIFF OMITTED] T6147.004

[GRAPHIC] [TIFF OMITTED] T6147.005

[GRAPHIC] [TIFF OMITTED] T6147.006

[GRAPHIC] [TIFF OMITTED] T6147.007

[GRAPHIC] [TIFF OMITTED] T6147.008

FORTY YEARS AFTER THE CLEAN WATER
ACT: IS IT TIME FOR THE STATES TO
IMPLEMENT SECTION 404 PERMITTING?

----------

THURSDAY, SEPTEMBER 20, 2012

House of Representatives,
Subcommittee on Water Resources
and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:02 a.m. in
Room 2253, Rayburn House Office Building, Hon. Bob Gibbs
(Chairman of the subcommittee) presiding.
Mr. Gibbs. Good morning. We will convene the Subcommittee
on Water Resources and Environment, a subcommittee of T&I. And
welcome, everybody, here today. I will start with my opening
statement. Let's get organized here a little bit. This is a lot
more cozy, up here in this room. We shouldn't have any trouble
hearing everybody.
Again, welcome. This is a Water Resources and Environment
Subcommittee hearing on ``Forty Years After the Clean Water
Act: Is it Time for the States to Implement Section 404
Permitting?''
A note that next month will be the 40th anniversary of the
Clean Water Act. When Congress wrote the Clean Water Act, it
did not contemplate having a single, federally dominated water
quality program. Rather, Congress intended the States and the
EPA to implement the Clean Water Act as a Federal-State
partnership, where States and the EPA act as co-regulators.
This, in essence, is a cooperative federalism.
While the States have played an integral role in
implementing many parts of the Clean Water Act over the past 40
years, including water quality standards and NPS permitting,
there is an important program under the Clean Water Act that
remains predominantly administered by the Federal Government.
This is the dredge, or fill, wetlands permit program under
Section 404 of the Clean Water Act.
While some of the 46 States have primary responsibility for
implementing NPDES permit program, only 2 States have assumed
administration of the 404 permit program. This is despite the
fact that, as I understand it, there are numerous States that
are interested in assuming the program.
State assumption of Section 404 gives a State the lead role
in evaluating and issuing permits. This can eliminate a
significant amount of State and Federal duplication, and result
in increased program efficiency and consistency in permit
decisions. It also can help us ensure that State-specific needs
and conditions are more directly addressed.
States know best what their issues are and how to address
them. I want to know why more States have not assumed the 404
program. And specifically, I want to hear about what are the
barriers that are holding States back from assuming the
program, and what statutory or other impediments, if any, are
standing in the way of making this program an effective
Federal-State partnership.
The aim of this hearing today is fact-finding, so we can
learn more about the States' assumption issue--assuming--this
issue. And also, I think, as part of our role as an oversight
capacity.
We assembled two panels of witnesses, including two Federal
agencies responsible for Section 404 permitting, and several
State representatives who will share their perspective on State
assumption of this program. I welcome all of our witnesses. But
this time I want to yield to my ranking member, Mr. Bishop, for
any comments you may have.
Mr. Bishop. Thank you very much, Mr. Chairman. And thank
you for holding today's hearing. While the topic of today's
hearing is an interesting one, I have to question how today's
hearing will help address the issues that this subcommittee
should be focusing on, which is creating jobs for American
families. In light of this Congress' mantra of doing more with
less, I am curious how our Republican majority plans to address
many of the concerns raised by the States without further
diminishing Clean Water Act protections over our waters.
Today we will discuss how some States wish to assume
regulatory authority over dredged and fill activities currently
covered by Section 404 of the Clean Water Act. Several States
have articulated why they would like to assume regulatory
authority over 404 activities, but have failed to use existing
Clean Water Act provisions to do so, provisions that were
adopted by this committee over 30 years ago.
The chairman mentioned perceived barriers to State
assumptions that--to State assumption that States recommend
action on. However, we need to be honest with our witnesses and
explain how, even if we agree with the States' concerns, many
of their recommendations are unlikely to find support with the
current House leadership.
First, States are requesting that Congress enact a new,
dedicated grant program for States to set up and manage their
individual wetlands programs. Yet all year the Republican
majority has blocked this subcommittee from moving any
legislation that would either reauthorize existing programs,
such as the Clean Water State Revolving Fund at increased
levels, or would create any new authorities.
In addition, this Congress must soon address the
consequences of sequestration, where Federal agencies such as
the Corps and the EPA will need to absorb an additional 7- to
9-percent cut in funding, including an estimated cut of $120
million from the Clean Water SRF and an estimated $20 million
cut from Section 106 funding. So, I would ask my colleagues and
the State witnesses where they would have Congress cut further
to come up with these additional funds for State 404
implementation.
Second, some States are recommending that Congress grant
them authority to regulate activities in the traditionally
navigable waters, water that--waters that are covered by
Section 10 of the Rivers and Harbors Act. Here again, I imagine
that my Republican colleagues would be reluctant to grant
States with potential veto authority over essential Federal
functions such as national defense, protection of commercial
navigation, and flood control projects.
Some also suggest that State assumption of the 404
authority will result in faster and cheaper permits for the
regulated community, as well as greater consistency and
efficiency in permitting process. Yet there is evidence to the
contrary, and I want the record to reflect the following.
Number one, when you compare apples to apples, the average
permit processing time for the States of Michigan and New
Jersey is currently about the same as the overwhelming majority
of Federal 404 permits approved by the Corps. So existing data
does not show that permits will be processed faster by States.
Second, in the absence of additional Federal
appropriations, States may be forced to raise an additional
funds to administer the 404 program through State general
revenues, or permit fees. So it is not necessarily a given that
404 permits will be cheaper under State authority.
And, third, permit applicants may also face greater
confusion trying to figure out which Federal or State agency is
responsible in those States that choose to administer only
portions of the 404 program, or if States are unable to assume
authority over navigable, in fact, waters.
So, exactly why are we holding today's hearing, especially
as this Congress plans on making its getaway tomorrow for the
upcoming elections? If the reason for today's hearing is to lay
down a marker for further changes to Clean Water Act
protections over waters, similar to other bills moved by this
subcommittee through the Congress, then in my view this is the
wrong approach for protecting the health and well-being of
American families, and one that I cannot support.
Rather than holding this hearing, I would have preferred to
see this subcommittee meeting be an opportunity to advance
legislation such as the Clean Water SRF reauthorization, to
address the current 11.3 percent unemployment rate for the
construction industry nationally--and I will point in my--
pardon me, on Long Island, over 30 percent unemployment in the
heavy construction industry.
Just like the recently enacted surface transportation
program, the need for investing in wastewater infrastructure is
enormous, and will not go away, simply by ignoring it.
Similarly, reauthorization and reforming programs to rebuild
our crumbling infrastructure will create thousands of jobs. For
every $1 billion invested in wastewater infrastructure, this
Nation can create between 28,000 and 33,000 jobs in communities
across America, while improving public health and the
environment.
For the past year-and-a-half I have been working in good
faith with outside groups and colleagues across the aisle to
reach consensus on the best way to renew the Federal commitment
to funding wastewater infrastructure. Unfortunately, these
efforts have been rebuffed by the Majority at every step,
including a party-line vote against reauthorization of the
Clean Water SRF before the August recess.
It looks as if we will recess this committee and this
Congress for the elections without moving a Clean Water SRF
reauthorization. This will mark the first time since Chairman
Bud Shuster led this committee that we have not acted on a
Clean Water SRF reauthorization. This is a missed opportunity,
not only in terms of what this committee should be doing to
promote good-paying jobs here at home, but also in meeting its
longstanding obligation to work with the States in protecting
public health and the environment.
I yield back the balance of my time.
Mr. Gibbs. OK. Before I introduce our witnesses, I want to
ask unanimous consent that the following letters and supporting
documents from the aggregates--the Ohio Coal Association and
the Association of State Wetland Managers--be included in the
record.
[No response.]
Mr. Gibbs. Without objection?
Mr. Bishop. No objection.
Mr. Gibbs. OK----
Mr. Bishop. And I have one, also, one----
Mr. Gibbs. Oh, OK, OK. Well, OK. So that is so ordered.
[Please see pp. 107-161 for the materials referenced by
Hon. Bob Gibbs.]
Mr. Bishop. OK.
Mr. Gibbs. And go ahead.
Mr. Bishop. I ask--thank you, Mr. Chairman. I ask unanimous
consent that a letter from Mr. William Snape of the Center for
Biological Diversity be included in today's hearing record.
Mr. Gibbs. So ordered.
[The information follows:]

[GRAPHIC] [TIFF OMITTED] T6147.064

[GRAPHIC] [TIFF OMITTED] T6147.065

[GRAPHIC] [TIFF OMITTED] T6147.066

[GRAPHIC] [TIFF OMITTED] T6147.067

[GRAPHIC] [TIFF OMITTED] T6147.068

Mr. Bishop. Thank you very much.
Mr. Gibbs. OK. Our first panel of witnesses--I will just go
through quickly and introduce you--is Mr. David Paylor, he is
the director of the Virginia Department of Environmental
Quality and vice-chair of the Water Committee of the
Environmental Council of the States; Mr. Jeff Littlejohn, he is
the deputy secretary for regulatory programs, Florida
Department of Environmental Regulation; Mr. George Elmaraghy,
chief, Division of Surface Water, Ohio Environmental Protection
Agency, and member, Association of State Wetland Managers; Mr.
William Creal, he is the chief of the Water Resources Division
of the Michigan Department of Environmental Quality, and board
member, Association of Clean Water Administrators; and Mr. Todd
Ambs, president of River Network.
And we will start this way. Welcome, Mr. Paylor, and the
floor is yours.

TESTIMONY OF DAVID K. PAYLOR, DIRECTOR, VIRGINIA DEPARTMENT OF
ENVIRONMENTAL QUALITY, AND VICE-CHAIR, WATER COMMITTEE,
ENVIRONMENTAL COUNCIL OF THE STATES; JEFF LITTLEJOHN, P.E.,
DEPUTY SECRETARY FOR REGULATORY PROGRAMS, FLORIDA DEPARTMENT OF
ENVIRONMENTAL REGULATION; GEORGE ELMARAGHY, P.E., CHIEF,
DIVISION OF SURFACE WATER, OHIO ENVIRONMENTAL PROTECTION
AGENCY, AND MEMBER, ASSOCIATION OF STATE WETLAND MANAGERS;
WILLIAM CREAL, CHIEF, WATER RESOURCES DIVISION, MICHIGAN
DEPARTMENT OF ENVIRONMENTAL QUALITY, AND BOARD MEMBER,
ASSOCIATION OF CLEAN WATER ADMINISTRATORS; AND TODD L. AMBS,
PRESIDENT, RIVER NETWORK

Mr. Paylor. Thank you. Good morning, Mr. Chairman, members
of the subcommittee. I am pleased to be here today to discuss
what many of the States see as the benefits associated with
State assumption of Section 404 of the Clean Water Act, and to
recommend actions that would help remove some of the barriers
to State assumption. My name is David Paylor, and I have been
the director of the Virginia Department of Environmental
Quality since 2006. I am also here representing the
Environmental Council of the States, a nonpartisan, nonprofit
organization which consists of the key environmental
commissioners of the States and territories.
In 2008, ECOS issued Resolution 08-3 supporting delegation
of Section 404 responsibilities to States that are prepared to
do so, and making recommendations to EPA to facilitate this
process. We see a number of benefits to having the 404 program
implemented by the States.
Most States define their waters more broadly than the Clean
Water Act, and include isolated wetlands, ephemeral streams,
and ground water that are not under Federal jurisdiction. A
State-run program would eliminate jurisdictional uncertainty,
and provide a consistent and predictable definition of
regulated waters.
Similarly, a State-run program would provide a streamlined,
one-stop permitting experience, which removes duplication and
regulatory redundancy. A single regulatory agency implementing
the rules would eliminate the potential confusion that can come
from two regulatory bodies, and would provide for greater
consistency in the application of regulatory requirements.
The program could be administered by most States at
significantly less cost. In Virginia, we currently estimate it
would cost an additional $3 million per year in operating cost
to assume the 404 program on top of our current duties. Our
best estimate is that this program cost the Norfolk District of
the Army Corps of Engineers $7.5 million per year to
administer.
States are often positioned to provide timely service to
project applicants through a knowledge of the areas of proposed
impact. ECOS has identified four primary barriers to State
assumption. federally funding is not currently available for
Section 404 implementation by the States. Other sections of the
act, such as the wastewater discharge regulations, provide
Federal funding for State implementation.
In Virginia, this is our single largest impediment to our
assumption of Section 404. There is uncertainty regarding the
criteria EPA would use for assessing States' legal authorities
and their assumption decision. EPA correctly requires that
State authorities be sufficient to meet Federal requirements.
But because of differences in State jurisdiction from their
underlying constitutions and statutes, those criteria may vary
from State to State, creating some uncertainty regarding EPA's
expectations.
Section 404 provides for no phased assumption option, which
would allow States to transition toward full assumption.
Similarly, Section 404 does not include an option for partial
assumption by States. Partial assumption could be based on
specific geographic areas, or certain types of activities.
As I mentioned earlier, the States, through ECOS, support
efforts to encourage Section 404 delegation to those States
prepared to implement the program. As such, we make the
following recommendations.
U.S. Congress should take action to authorize and
appropriate adequate fundings for States to assume the Section
404 permitting program, should they choose to seek it. Based on
Virginia's estimates, Federal funding for a State program could
result in at least a 50-percent savings, and a consequent
reduction in the cost borne by taxpayers.
Encourage EPA to develop clear guidelines and processes for
State assumption, which encourage States to apply for and
assume regulatory responsibility for the program.
And support of simplified and more flexible process for
State assumption of the Section 404 program, including partial
and phased options.
The goal of protecting our Nation's wetlands and streams is
critical to our future. It is a goal that can best be realized
through a process that is consistent, efficient, and responsive
to the unique features and qualities of the individual States.
State assumption can provide a mechanism for individual States
to realize enhanced water resource protection while providing a
streamlined regulatory program with a single point of contact.
Mr. Chairman and members of the subcommittee, I appreciate
the opportunity to present my testimony to you today, and will
be happy to answer any questions you may have.
Mr. Gibbs. Now, before we move on, an oversight--I
sincerely apologize--I didn't introduce our last witness. My
problem is I broke my glasses last week, and I got these
readers, and I am struggling here because when I look up with
my glasses on, you are all blurry.
But we have Mr. Todd Ambs. He is president of the River
Network. And welcome.
Go back to Mr. Littlejohn. The floor is yours.
Mr. Littlejohn. Thank you, sir. Good morning, Chairman
Gibbs, Ranking Member Bishop, other members of the
subcommittee. I am Jeff Littlejohn, deputy secretary for the
Florida Department of Environmental Protection. Our
responsibilities include administering Florida's federally
delegated programs under provisions of the Clean Water Act,
Clean Air Act, Safe Drinking Water Act, and other Federal laws.
In Florida we value our waters and wetlands and have
protected them under State law since 1974 through integrated
management of storm water, landscape alteration, and our State-
owned submerged lands. We do this because Floridians know our
natural resources better than anyone else. But our commitment
to safeguarding Florida's environment results in duplication
with the U.S. Army Corps of Engineers and its Section 404
wetlands program.
This duplication of effort comes in spite of using joint
permit applications with the Corps, implementing a State
programmatic general permit from the Corps, and integrating
Section 401 water quality certification and coastal zone
management consistency into our State wetland permitting
process.
When Congress amended the Clean Water Act in 1977 to enable
States to assume the 404 program, it had the clear intention of
making that assumption possible. Unfortunately, obstacles
remain 35 years later for Florida and 47 other States to
accepting the full 404 program. Without changes, perhaps to
Federal law, and certainly to the Federal review process,
Florida and the Corps will continue issuing two permits for
applicants who are only asking to do one thing. That surely was
not Congress' intention.
Requiring two permits for one project might make sense if
the State and Corps were addressing different types of
activities or achieving different outcomes. However, my staff
just completed an analysis of Corps wetland permits recently
issued in northeast Florida. Of 31 projects where the Corps and
Florida issued a permit for the same activity, the wetland
jurisdiction line was identical in all 31 instances. The
permitted wetland impacts were similar, and Florida required
about 50 percent more wetland mitigation, overall. This
analysis at least suggests that Federal permits are not more
extensive or more protective than Florida's. And if they are
not, it is difficult to make the case that two permits are
necessary.
The primary barrier to Florida's full assumption of Section
404 is that many tidal and other navigable waters subject to
the Clean Water Act are also subject to Section 10 of the
Rivers and Harbors Act, which cannot legally be assumed. These
waters constitute a large and important part of Florida's
aquatic systems, including coastal waters and public trust
lands transferred to Florida at time of statehood. This
prohibition negates many potential benefits of Section 404
assumption.
We absolutely respect the Corps of Engineers' vital and
distinct role in maintaining navigation. However, by virtue of
its sovereignty, Florida has significant proprietary powers,
including the authority to maintain navigation. In fact, we
have demonstrated, year after year, the ability to protect
navigation as we are protecting aquatic resources, through
comprehensive wetlands and coastal regulatory programs, and our
federally approved coastal zone management program.
Surely responsibilities can better be divided to take full
advantage of Florida's proven abilities and the Corps'
important oversight role. We are ready and eager to assume
expanded authority over Section 10 waters under the Corps'
watchful eye and guidance.
A second barrier to assumption has been the uncertainty in
the State and Federal roles in administering the Endangered
Species Act. In 2010, EPA clarified that consultation under the
ESA is not required before approval of a State 404 program.
This was helpful, but not sufficient. Florida has robust State
constitutional authority to protect listed species through the
Florida Fish and Wildlife Conservation Commission, through
which we coordinate all of our wetlands and coastal permitting.
The Commission recently amended its rules to mirror the
protections afforded to federally listed species. We believe we
can demonstrate the necessary equivalency of Florida's program
in this regard.
During past consideration of Section 404 program assumption
by Florida, questions have been raised regarding the
equivalency of a number of aspects of our program to Federal
law. The Clean Water Act requires that approved State programs
have adequate authority to carry out the 404 program in a
manner that is no less stringent than Federal requirements.
This is a reasonable standard.
Certainly Florida's laws, like those in other States, are
not identical to Federal law. But that is not the test. In its
review of our program, we need EPA to recognize Florida's
combination of State constitutional, statutory, and proprietary
authorities, along with its suite of rules, that combine to
provide comprehensive management of the State's aquatic
resources at least equivalent to Section 404, which itself
rests primarily on the Federal obligation to protect interstate
commerce.
We are confident that States like Florida can demonstrate
equivalency to Section 404, provided the reasonable standard of
adequate authority to carry out the program is appropriately
applied. We have proved this in our implementation of the
Section 402 NPDES program for more than a decade. Whether in
the context of our wetland delineation method, regulatory
jurisdiction, protections for listed species, water quality
standards, mitigation requirements, public participation,
procedural rigor, or compliance and enforcement authority,
Florida implements substantially equivalent--if not greater--
protections, with more extensive coverage for our aquatic
resources.
In summary, we believe Congress provided for State
assumption of Section 404 because it recognized the additional
strength that comprehensive State water and land use programs
would bring to the program, and the virtues of a State-Federal
partnership. Florida is fully committed to preserving its
aquatic resources and will continue to carry out science-based,
wide-ranging, publicly supported programs for wetland and water
resource management. We hope, with Congress' support, that
Florida and the Federal Government can realize the full
potential of Section 404 program assumption to protect these
resources and, at the same time, unburden the public of
unnecessary bureaucracy and pointless costs. Thank you for the
opportunity. I am happy to answer any questions you may have.
Mr. Gibbs. Thank you.
Mr. Elmaraghy, the floor is yours.
Mr. Elmaraghy. Good morning, Chairman Gibbs, Ranking Member
Bishop, and members of the subcommittee. I am George Elmaraghy,
chief of the Division of Surface Water of the Ohio
Environmental Protection Agency. I am grateful for the
opportunity to speak on behalf of the State of Ohio and the
Association of the State Wetland Managers regarding the State
experiences in pursuing the assumption of Clean Water Act
Section 404 permitting.
In Ohio, the Corps of Engineers authorizes impacts to the
water of the U.S. through Section 404 permits. Ohio EPA issues
401 certificates for these permits, and then U.S. EPA provides
oversight.
Ohio, along with other States, is interested in assuming
Section 404 permitting for the following reasons and benefits.
One, the permitting process would be streamlined into one
permit from one regulatory agency, thus reducing the regulatory
uncertainty and burden for business in Ohio.
Two, State regulatory staff are more aware of local
development and local water resources issues.
Three, State regulatory staff can better coordinate the
issuance of 404 permits with other State-issued permits, such
as air permits, NPDES permits, and storm water construction
permits.
And four, a simplified environmental permitting process
would encourage investment in the State, leading to job
creation.
The States have had the opportunity to pursue assumption of
Section 404 program since 1977. As of today, only two States
have assumed permitting authority. Numerous other States have
investigated assumption of the 404 program. However, these
States have been unsuccessful. In contrast, 46 States have
received NPDES permitting delegation. We need to learn from
this success.
From our perspective, there are four main obstacles: number
one, lack of congressional mandate to delegate 404 authority to
States; two, a cumbersome assumption process; three, lack of
guidance from U.S. EPA in preparing an assumption package; and
four, lack of program implementation program funding.
We need to eliminate these obstacles to State Section 404
program assumption by, one, simplifying the assumption process,
an unworkable process that can be drawn out for several years.
The Oregon experience is a good example that illustrates the
difficulty of this process. Oregon started the assumption
process more than 15 years ago, and has yet to receive
authorization.
Two, development of a joint U.S. EPA and Corps of Engineers
guidance on how to prepare a 404 assumption package.
Three, establish a pilot assumption project between the
Corps of Engineers, U.S. EPA and a State to serve as an example
for other interested States. Ohio volunteers to be this pilot
State.
Four, providing funding for preparing the assumption
package by allowing States to use current wetland grants to
fund assumption activities.
And, number five, provide funding to implement the program
upon assumption. This could be accomplished by establishing a
mechanism to reallocate the funding currently used by the Corps
of Engineers to authorize the States.
Mr. Chairman and members of the subcommittee, thank you for
this opportunity to share Ohio's perspective on the Section 404
program assumption process. I have additional materials to be
added to the record from the Association of State Wetland
Managers. I am happy to answer any questions you may have.
Thank you.
Mr. Gibbs. Yes, we already accepted those additional
materials.
Mr. Elmaraghy. Thank you.
Mr. Gibbs. Thank you. Mr. Creal, the floor is yours.
Welcome.
Mr. Creal. Thank you. Good morning, Chairman Gibbs and
fellow committee members. I am Bill Creal. I am the chief of
the Water Resources Division of Michigan, which is 300
engineers and scientists that work on water resource issues in
Michigan. I am testifying on behalf of both Michigan and the
Association of Clean Water Administrators. With me today is my
assistant division chief, Kim Fish. And between the two of us,
we have over 60 years of administering Clean Water Act programs
in the State of Michigan. Thank you for the opportunity to
participate in this important discussion regarding Section 404
of the Clean Water Act.
Michigan is one of the two States to assume the Section 404
program. We assumed this program 28 years ago. You are probably
asking why would Michigan assume this program. Well, Michigan
is defined by an abundance of water. We have borders with four
of the five Great Lakes, which results in over 3,000 miles of
coastal freshwater shoreline, the most freshwater shoreline of
any State in the Nation. We also have over 11,000 inland lakes,
more than any other State in the Nation. And we have 5.5
million acres of wetlands in our State. It is important to
wisely use these water resources.
Since assuming the Section 404 program, we have issued over
100,000 permits. And we issue about 4,000 to 5,000 permits
every year. We know and understand what it takes for a State to
run this program, and what the benefits are to a State.
You have heard some of these benefits from the other
members of this panel. We think these benefits include a clear
definition of what is regulated waters and what are regulated
activities. We don't have the confusion in Michigan that is on
the national level on what are regulated waters. We make faster
permit decisions. We have statutory State deadlines that drive
us towards this. We have reduced the regulatory burden. We have
consolidated permitting actions throughout the State. We have
better access to decisionmakers. We have 10 district offices in
Michigan, and we issue our permits in those district offices.
We have more public oversight of our decisions, and we have a
fair and impartial appeal process for those that aren't
satisfied with our decisions. We have provided examples and
further explanation in our written testimony of this.
We know this can be a difficult program to run. We have
seen the controversies over 28 years. But Michigan thinks it is
worth it for States to assume. This support was demonstrated as
recently as 2009. Our department has seen general fund
reductions from $120 million of State funding down to $20
million by 2009. This makes tough budget times in Michigan. In
2009 our Governor proposed turning this program back to the
Federal Government. But the regulated parties, including
Realtors, home builders, manufacturers, the farming community,
and the environmental groups and other stakeholders, prevented
this from happening.
However, we continue to face the funding issue for our
program. We are saving the Federal Government over $5 million
per year by running this program. Specific Federal funding is
not provided to run this program. So, Michigan has saved the
Federal Government quite a bit by running this program for 28
years. We strongly recommend that you consider sharing some of
these savings with the States that assume the Section 404
program. This would assure that States are able to assume and
keep this program.
In our specific case, we propose that States like Michigan
be eligible for up to $2 million per year in grants when they
assume the program. We believe such a process can be put in
place so there are real Federal budget savings, and States also
receive some Federal funding to run this important program.
Mr. Chairman, thank you for the opportunity to provide this
testimony today. We look forward with--working with you as you
continue to explore this issue. And I would be happy to answer
any questions.
Mr. Gibbs. Thank you.
Mr. Ambs, welcome.
Mr. Ambs. Thank you. Good morning, Chairman Gibbs and
Ranking Member Bishop, members of the subcommittee. My name is
Todd Ambs. As president of River Network, a national
conservation organization, I work for an organization that for
24 years has focused on helping the hundreds of river and
watershed groups around this Nation to do their work better. In
short, we work to feed the heart of the watershed movement, the
hundreds of groups across our Nation that, though sometimes
short on funds, are long on passion for protecting their home
waters.
But I offer my thoughts today with a primary focus on how
the State of Wisconsin approaches these issues. My insight
regarding this matter comes from working in the environmental
field for more than 30 years, and from having the honor of
serving as the water division administrator, the Wisconsin
Department of Natural Resources, for 8 years, 2003 to 2010.
I will stress three concepts in my brief oral remarks. One,
as my former colleague from Michigan has already stated so
eloquently, States can assume the responsibility for handling
Section 401 of the Clean Water Act, and do it well. But they
can only achieve that goal if they have adequate funding, solid
staffing resources, and firm expertise in the water resources
of their State. Michigan has been at it for 28 years. They
built that program over time. Other States considering this
path need to do so deliberately, and with a firm understanding
of the responsibilities.
That, to me, is what I hope is one of the take-aways from
today's hearing. There are, no doubt, many reasons why only two
States have assumed 404 jurisdiction, as others have noted, in
the last 40 years, while 46 States are--the delegated entity
for Section 402. But I believe that one of the main reasons is
because this is a much harder program to manage. Issuing NPDES
permits is pretty straightforward, once you get it set up. You
are measuring effluent from the end of a pipe and making sure
that the pollutants are below a certain number.
When someone proposes to fill a wetland, it is a very case-
specific issue. In Wisconsin, we have at least a dozen
different types of wetland communities, each with their own set
of functional values, plant species, and place in the
hydrologic cycle. If you make the wrong choice on a permit to
fill one of these treasures, you have wiped 10,000 years of
Mother Nature's work off the landscape. If a discharger in the
402 program continues to operate under an old permit due to
budget cuts, staffing vacancies or other circumstances, it is
not ideal. But waterways can and are protected using the old
permits.
If budget cuts and staffing vacancies occur at the same
time as there is pressure to approve a large number of dredge
and fill permits, there is nothing to fall back on, especially
if the State has assumed full responsibility for the program.
My second point, though, is that there are other tools
available, other than full assumption, if you want to save
Government dollars, making the permitting system more
efficient, and protect these special resources. That was the
path that Wisconsin each time we looked at this question.
Working more closely with the Army Corps, adopting general
permits, digitizing wetland maps were all steps that we took,
instead of seeking 404 assumption.
And, as we noted in our response to the Wisconsin
legislative auto bureau's audit of the program in 2007, ``We
have investigated the feasibility of the State assuming the
Federal 404 program in the past decade and again in response to
the audit request. We continue to find the feasibility of
assuming the program low, due to significant barriers that
involve State law changes and lack of Federal funding available
to the States for implementation.''
The letter then went on into some detail regarding the
steps being taken to streamline the permit application process,
and I have actually got some of that detailed in the written
testimony. As a result of those actions, and others since that
time, the Wisconsin wetlands program was working well when I
departed in 2010. As of 2010, 94 percent of all wetland permit
applications were approved by the department. The time for
processing a permit had fallen by more than two-thirds in the
last decade. And no significant economic development projects
had certainly been stopped because of onerous wetland
determinations.
The point here is not to in any way denigrate the efforts
of Michigan or New Jersey, where State 404 assumption has
occurred, or to suggest that efforts underway in States like
Ohio and Oregon and others to move towards State assumption are
without merit. What I am suggesting is that 404 assumption is
far from the only tool available to States that wish to have a
streamlined yet effective program to protect some of our most
precious natural resources, our waters.
Finally, a quick reminder about the importance of these
resources and the impact that this program can have on these
resources. Wetlands provide more than just habitat. They serve
as nature's sponge, acting as flood control during high-water
events. They filter out harmful pollutants that can help
address serious water quality challenges. They release waters
to parched ecosystems in times of drought. For these reasons
and more, any effort to promote State-Federal coordination or,
when appropriate, State assumption of responsibilities
contained in Section 404 of the law, the most useful exercise--
but adequate funding, consistent State laws, transparent
processes, and broad public and political support for taking
charge of a program like this are key ingredients and important
foundations if the exercise is to produce healthier water
bodies in the Nation.
I thank you for the opportunity to testify, and certainly
look forward to working with you, and happy to answer any
questions.
Mr. Gibbs. Great, thank you. I will start off. I would like
to maybe have questions--more of a discussion, I think. Because
what I am hearing, we have issue of cost. I heard in testimony
that--from Ohio and Florida--we can save some money if the
States do it.
What it comes down to me, though, is the service to the
entities we serve, as public officials. And I know in Ohio--
correct me if I am wrong--the legislature actually stopped a
move by Ohio EPA to move--is that correct, Mr.----
Mr. Elmaraghy. Yes, Mr. Chairman. We were planning to
introduce legislation to authorize the director to seek
assumption of Section 404. And because of concern from some
industries, we decided to reintroduce that bill later. And we
are currently working with industry and the environmental
groups to alleviate their concerns.
Mr. Gibbs. OK. And then to follow up on that a little bit,
I think Florida is an interesting example. Because my
understanding in Florida, with Section 10, because you have so
much navigable water that is related to the wetlands issue,
you--I think, Mr. Littlejohn, you said in your testimony that
if you took it over you could streamline it.
Now, are you talking about areas that aren't interrelated
with the Section 10, or would you be--Florida be interested in
having to do--be--jurisdiction over the whole Section 10
everything?
Mr. Littlejohn. Thank you, Mr. Chairman. Florida would be
interested in assuming Section 10. But, obviously, that would
require an act of Congress.
Mr. Gibbs. Yes.
Mr. Littlejohn. However, I think that there is a reasonable
compromise if we were to pursue Section 404 assumption and an
expanded State programmatic general permit to cover more
activities over traditionally navigable waters and adjacent
wetlands. I think that could be a reasonable approach.
Mr. Gibbs. OK. The other concern I have heard and read
through--of course States, you know, currently do the 401
permitting. And I think there is some concern that--some of our
entities, the people that we serve, States doing the 404
permitting. I heard some testimony about, you know, we could
streamline it into one permit, essentially, if States were
doing it. So almost 404 would replace the 401 if States take it
over. What is the experience in Michigan with the customers you
serve?
Mr. Creal. Well, yes. We took that over. We don't issue the
401 certs, because we issue the 404 permits. And the customers
are very satisfied. We have a consolidated permitting process
where we include a variety of State-required actions for the
permittee under one permit and one permit fee. So we don't make
them get numerous permits or pay numerous permit fees. But that
has worked out excellent in Michigan.
Mr. Gibbs. OK. I guess I will go back to Florida for a
second, because I am just thinking of the Section 10. I realize
we got--we will separate the 404 that is not related to the
Section 10.
But currently, anybody that is in that area--you say
Florida is not really involved at all, then, or--how is the
401's coming in? Explain to me how that works, then.
Mr. Littlejohn. Yes, sir, Mr. Chairman. The State has a 401
program. And so, if the Corps of Engineers issues a permit over
traditional navigable waters or adjacent wetlands, the State is
also issuing, through our own wetland permitting program, the
Section 401 water quality certification, as well as our coastal
zone management, consistency determination.
But even within Section 10 waters and adjacent wetlands,
the State does authorize some activities on behalf of the Corps
through our State programmatic general permit. Our concern is--
and one of the reasons why I am advocating for an expanded role
in Section 10 waters--is that we are seeing the activities that
we are allowed to authorize on behalf of the Corps shrink, or
become eroded over time.
And just for example, we have been implementing an SPGP for
the Corps since 1995. And we saw that authority expand
significantly between 1995 and 1997, to the point where the
State of Florida could essentially authorize the vast majority
of Corps nationwide permits over Section 10, traditional
navigable waters and adjacent wetlands, all throughout Florida.
But that authority has been shrinking since then. And in 2006,
when our most recent SPGP was reauthorized, there are only four
types of activities that we can issue on behalf of the Corps.
Mr. Gibbs. OK. I am going to go over to Mr. Paylor from
Virginia. I think in your testimony you stated that in the
Norfolk Army Corps division you could save $7.5 million with
the change?
Mr. Paylor. It would be--excuse me, Mr. Chairman. Yes, it
would be--they currently spend, by our estimate, $7.5 million.
It would cost us three. So the saving----
Mr. Gibbs. OK. I had one more question for Mr. Creal. The
ranking member, in his opening statement, talked about how the
permitting was so slow in Michigan and the two States that have
adopted it, Michigan and, I believe, New Jersey. And I think I
saw in your statement--I think I got it here--Michigan's
processing is subject to deadlines mandated by State statute,
and has frequently made permitting decisions on individual
permits weeks or months sooner than the Army Corps of
Engineers. However, decisions on general permits, which are
smaller, routine projects, are about the same.
Could you just expand a little bit on what is happening, in
your experience, you know, serving our customers out there,
getting their permits?
Mr. Creal. Sure. And we think that is the way it is. In the
routine, general permits, which are a fair number of the
permits, it is about the same. But when we get into the
individual permits that are more complicated, we have statutory
deadlines that are put in place by our State legislature, and
we operate under those, 90 days or 120 days. And so we are
moving to delineate the wetlands very rapidly, and make our
permit decisions. We think that we do it much more rapidly than
the Army Corps of Engineers. And we have some comparisons when
we deal with the----
Mr. Gibbs. Well, that was the next point. I might just stop
you right there and ask from the other States what time
periods--apples to apples here for individual permits--that is
happening from the Army Corps to get those permits done. You
say you are by State statute in Michigan no more than 90 to 120
days?
Mr. Creal. Yes.
Mr. Gibbs. Anybody else want to respond? What is happening
in Virginia?
Mr. Paylor. Mr. Chairman, our statutory requirement is 120
days. The Army Corps, many cases, they are as fast as that. But
they have no deadlines, and we have seen permits take over a
year, year-and-a-half, to be processed.
Mr. Littlejohn. Mr. Chairman, in Florida, since 1995, our
statutory deadline has been 90 days to review wetland permits.
And just this last legislative session our review time was
reduced from 90 to 60 days. And that was partly in response to
our increased efficiencies in reducing our average processing
time. And we are down to about 47 days for our average time to
process a wetland permit in Florida.
Mr. Gibbs. I am confused here. The Army Corps is the one
that is doing it.
Mr. Littlejohn. Sir, I mean the State wetland permit. We
have our own wetland permit program that mirrors that of the
Corps of Engineers program. And our program satisfies the 401
water quality certification requirement----
Mr. Gibbs. OK.
Mr. Littlejohn [continuing]. And the coastal zone
management requirement. It is--in comparing our permit
decisions to the Corps permit decisions, we are finding the
exact same wetland delineation and----
Mr. Gibbs. OK. How long is it taking the Corps to do it?
Mr. Littlejohn. I see. I misunderstood your question.
Mr. Gibbs. Yes.
Mr. Littlejohn. I don't have specific data for within
Florida on the average Corps individual permit. But I am very
confident that it greatly exceeds 47 days.
Mr. Elmaraghy. In Ohio, for the 401, we have a regulatory
deadline of 180 days. However, we have imposed our own internal
deadline of 120 days and we are meeting this 120 days
regularly.
For the Corps of Engineers, of course they have to take
more than 180 days or 120 days, because they have to wait for
us to issue the 401 before they act. So just the fact that
having two agencies dealing with the same project definitely
will make it longer to--for the applicant to get the final
permit and start construction.
Mr. Gibbs. OK.
Mr. Elmaraghy. Generally, the Corps maybe takes an average
of around 1 year. I don't have----
Mr. Gibbs. OK. That is what I wanted to know.
Mr. Elmaraghy. Yes, I don't have really----
Mr. Gibbs. I will stop. I think I have used up plenty of my
time, and I want to----
Mr. Elmaraghy. OK.
Mr. Gibbs [continuing]. Let Mr. Bishop have his turn.
Mr. Bishop. Thank you, Mr. Chairman. Just on this subject,
just--I am not going to prolong the discussion. Just the Corps
data shows that 91 percent of general permit decisions are made
within 60 days, 91 percent. And individual permit decisions, 71
percent are made within 120 days.
I--as I mentioned in my opening statement, I am very
concerned about the looming possibility of something that none
of us ever thought would be this real a possibility, and that
is the sequestration that exists in current law that will go
into effect on January 2nd if we do not find ways to reduce the
deficit by $1.2 trillion.
Current law suggests that the deficit--pardon me, the
sequestration--would be split 50/50 between defense and
nondefense spending. That would yield cuts ranging anywhere
from 7 percent to 9 percent for all accounts, all accounts in
what we call the domestic discretionary budget. Such a cut
would reduce funding in the Clean Water State Revolving Fund by
approximately $120 million. It would cut $75 million from the
Drinking Water State Revolving Fund, and it would cut an
estimated $20 million from the Section 106 program.
I will also tell you that the House of Representatives has
voted twice to turn off the sequester for defense spending, and
essentially load all of the sequester onto what we call
nondefense discretionary, which would essentially double those
amounts.
So, my question is how--what impact would these kinds of
cuts have on the ability of your States to protect water
quality and drinking quality, if the State were to, in effect--
pardon me--if the Federal Government were, in effect, to walk
off the field to the extent of the numbers I am talking about?
What impact would it have on the States? How would the States
accommodate that? Would the States simply be able--be forced to
do less? Would you divert expenses from other areas of your
budget to cover this, given the priorities?
So, Mr. Paylor, I will start with you, from Virginia.
Mr. Paylor. Thank you, Mr. Chairman--Mr. Bishop. We would
set priorities, and we would likely have to divert monies from
one section to another. For example, we would likely do less
water quality monitoring, and we may, in fact, have to have a
smaller compliance presence. But it would be certainly our top
priority to make sure that all those facilities operating in
the Commonwealth who were regulated had their permits with
clear requirements of what it took to protect our water
quality.
Mr. Bishop. OK. Mr. Littlejohn?
Mr. Littlejohn. Ranking Member Bishop, in Florida it has
been my priority over the last year-and-a-half since I have had
this job, to plan for ultimately not having to rely on Federal
funding in order to run our regulatory programs.
So, we have a lot of programs that are completely State-
funded. And I think the impact of significantly reduced or even
no funding from the EPA could be absorbed by Florida.
Mr. Bishop. At the risk of being a wise ass, we should--we
have to cut funding everywhere in this legislature. So we will
take note of Florida's position.
[Laughter.]
Mr. Bishop. I am teasing. I am teasing. Thank you.
Mr. Littlejohn. In exchange for the 404 program?
[Laughter.]
Mr. Elmaraghy. Twenty-five percent of our budget is coming
from Federal money. And if we have cuts in this portion of our
funding, definitely we need to establish priority and see how
we can run effective programs with less funding.
But I see that the effect of cuts in the Federal money will
require us to take a look at our resources on the Federal level
and the State level and to find better ways to do our programs.
As mentioned here by my colleagues in Ohio, if we took over the
404 program, the Federal Government will be saving $3 million.
So this kind of savings will be needed to deal with the issues
in the budget on the Federal level. And it will be a good idea
to divert part of this savings to the States which volunteer to
assume the 404 program.
Mr. Bishop. OK, thank you. Mr. Creal?
Mr. Creal. Yes. We are still trying to understand exactly
where the cuts in sequestration would occur, and what impacts
would happen in Michigan. I would like to note, though, that
Michigan understood back in 2002 that State Revolving Fund cuts
were coming in that program, and Michigan passed Proposition 2
in that year which set aside State bonding authority for--to
help cover it if we lost that infrastructure funding. And we
are at the point of putting reforms in place through our
legislators right now to spend that money that we haven't spent
yet for State-funded State Revolving Fund.
So, we had anticipated that State Revolving Fund would
achieve cuts in the wastewater side back in 2002. And Michigan
voters responded with a way to deal with that.
Mr. Bishop. OK.
Mr. Creal. But we are still not clear where the
sequestration--and I know that it is all being worked out, but
we are very concerned about the impacts from it.
Mr. Bishop. Thank you. Mr. Ambs?
Mr. Ambs. Perhaps this is the benefit of no longer being
employed by the State. I think the cuts in Wisconsin will be
devastating. We have significant difficulties managing programs
today. We had significant difficulties managing the delegated
programs. When I was there we had a D-delegation agreement with
EPA--region five, specifically--on managing the Safe Drinking
Water Act, pieces of the Safe Drinking Water Act program.
A number of States--and certainly Wisconsin--are up against
it, in terms of very, very dire circumstances. And having to,
every day--used to make no bones about it--every day we had to
make choices about which State or Federal laws we were going to
enforce more than others, because there just aren't enough
resources. And the further we cut those resources--the
challenges don't go away. The problems that are out there don't
go away if the funding does.
Mr. Bishop. Thank you. I am sure I have exhausted my time.
Thank you all very much.
Mr. Gibbs. Mr. Duncan.
Mr. Duncan. Well, thank you, Mr. Chairman. Mr. Creal, you
mentioned that the State of Michigan has 10 offices located
across the State. How many offices does the Army Corps have, or
did it have before the State assumed this program, do you know?
Mr. Creal. I am being told they had four offices.
Mr. Duncan. And you say that you can issue your permits a
lot quicker than the Army Corps. And I heard some mention that
the Army Corps has to wait on the States on the--for part of
their process. Is their delay just because they have to wait on
the State? Or what could they learn from your ability to issue
your permits much quicker?
And also, you mentioned this cut in your funding from $120
million to $20 million. How have you made that up? Have you
gotten any money from other sources to alleviate that cut, or--
--
Mr. Creal. Yes, sir. That is several questions.
Mr. Duncan. Yes, let me----
Mr. Creal. Well, I think the 401 that you are hearing from
States like Ohio, that is a little different than Michigan.
Where we can tell you we have the experience in comparison with
the Corps is in waters where we and the Corps both issue
permits. And we had a----
Mr. Duncan. Oh, OK.
Mr. Creal. And some of that is the----
Mr. Duncan. You are talking about the 404.
Mr. Creal. The 404. And we are issuing a State permit, and
the Corps is issuing a Federal permit. We had a power company
that wants to put a nuclear power plant on Lake Erie. And part
of this comes back to how you delineate wetlands, and the
confusion on the Federal level and complications on how you do
that.
We have a much simpler way to do it in Michigan, on how to
delineate them. We went--for that Federal power plant, we
delineated the wetlands in 45 days, and it took the Army Corps
of Engineers over 700 days to do the wetland delineation.
Direct comparison. So we have examples like that that we can
point to, where we compare ourselves to where the Army Corps
is. Plus we have the statutory deadlines for issuing our
permits that aren't there on the Federal level. So, we can draw
direct comparisons that way.
Regarding how we have made up the funding, what the State
has resorted to was we had put in permit fees in various
programs, like under the NPDES permit program. We never had
permit fees in place before 2004. And a result of continued
erosion to the general funds, we had to make up some of that
from putting permit fees in place for municipalities and
industries and storm water entities to cover some of the
general fund shortfall.
But there has also been a corresponding reduction in staff
as we have gone along, too. And as you heard Mr. Ambs talk
about, we have reduced things like our permitting--ability to
process our permits and do inspections and take compliance
activities.
We have also had to gain efficiencies through technology,
which we continue to do. So we tried to make up this through a
variety of mechanisms. It has been a struggle.
Mr. Duncan. OK, thank you. Mr. Elmaraghy, is it accurate
that Oregon has been working since 1995 to try to assume the
404 program there? And why is this taking so long? And why have
only two States taken it over thus far, if that is correct?
Mr. Elmaraghy. Yes. That is the story I hear about Oregon.
They started to try to take over this program some time in the
1990s. And of course, the difficulty of getting this
assumption, as I mentioned in my testimony, lack of funding,
the process to get assumption is very long, and we don't have
good guidelines on how to assume the program. And I assume
Oregon is facing the same problems we have in Ohio right now.
Mr. Duncan. Well, I read someplace that 46 States handle
the NPDES program. Why is it so much more complicated or
difficult or time consuming to assume the 404 program as each
of you have said would save millions of dollars?
Mr. Elmaraghy. My feeling is the reason 46 States assumed
the 402 program is because it comes with funding. And also, as
I recall, early, after the Clean Water Act was enacted, there
was a mandate for U.S. EPA to delegate this program to the
States. And we need to learn about what happened to delegate
the 402 program in order to find out how it happened and how we
can apply the same experience for 404.
But the funding and this mandate which U.S. EPA was under
to delegate this program to the States is the major reason.
Mr. Duncan. All right. My time is up. Thank you very much.
Mr. Gibbs. Representative Napolitano, do you have a
question?
Mrs. Napolitano. Yes, Mr. Chair, I do. And just following
up on that, 402 is a mandate?
Mr. Elmaraghy. It is----
Mrs. Napolitano. A general mandate?
Mr. Elmaraghy. At one time after the enactment of the Clean
Water Act, Congress apparently pushed U.S. EPA to delegate this
program to the States.
Mrs. Napolitano. So it is funded, but--it is at least
partially funded, fully funded by the Feds?
Mr. Elmaraghy. We have the 106 program which is funded
the--like the NPDES program, but less monitoring and so on. I
will say, like, part of our NPDES permit program funded
federally and the rest come from the State.
Mrs. Napolitano. So, in essence, if the 404 were to be
taken on and followed more or less the same type of area of
funding, then the States would be able to take it on?
Mr. Elmaraghy. If we have some source of funding from the
Federal Government, it will encourage the State to do it.
However, Ohio feels like the advantage of taking 404 assumption
is so great that we are willing to do it even without further
funding.
I give you an example. In the Department of Transportation
Ohio, they have a lot of projects which require 404 permits.
And in order to expedite their projects, they are supporting us
to take assumption--and, as a matter of fact, they are willing
to partially fund the 404 program.
Mrs. Napolitano. OK. But--and I understand that. However,
the Corps is a national program. So it is a little harder--and
I know they have regional offices that take care of their own
local requests. But any State can do their own; they don't have
to worry about other than their own. So there might be a
difference there in the delivery, besides you have to get
permitting from them, they have to get some permitting from
you, I understand.
Mr. Elmaraghy. Yes, like----
Mrs. Napolitano. Right.
Mr. Elmaraghy [continuing]. They have to get a 404 permit,
regardless. So you are eliminating--from two permits to one
permit.
Mrs. Napolitano. Right. Well----
Mr. Elmaraghy. Also--yes, that is what simplifies the
process.
Mrs. Napolitano. Question, then. Why are the coastal States
reluctant to administer the 404 program? And what can be done?
Or should we incentivize the coastal States to administer that
404 program? Anybody?
Mr. Paylor. As we have said in Virginia, we believe that we
could do it for--in the range of half the cost. If those
dollars that are going towards that program right now through
the Army Corps of Engineers, if a portion of those could be
converted to EPA dollars for grant funding, it would end up in
Virginia still being only partially federally funded, and there
would be at least half of that that would be fee or otherwise
funded.
Mrs. Napolitano. Which brings up the point that you--there
are some States that do follow and do support their own
funding. But each State is different. Would there be a
requirement, then, for the Feds to be able to have a followup
and ensure that the program is being carried out properly?
Anybody?
Mr. Paylor. Absolutely. All of the programs that we have
that are delegated by EPA to us have an auditing function. And
there is a fairly robust dialogue that goes along with those
programs with EPA, to assure that we are meeting Federal
guidelines.
Mrs. Napolitano. Mr. Ambs?
Mr. Ambs. Yes, just agree with that. And, in fact, EPA, I
know, is very active in reviewing permits that are issued in
both Michigan and New Jersey.
However, one of the things you always have to be concerned
about is what happens in terms of the States having strong
enough laws on the books to be consistent, at least as
stringent as Federal law. And, you know, Wisconsin is a good
example of where you are always going to have these challenges
if you have more States that go to assumption.
A few years ago, if we had chosen to move toward 404
assumption, I thought we were well positioned to be able to say
we had a program that was as stringent as the Federal
Government. Legislation was just passed this year in Wisconsin
that I believe no longer makes that the case in Wisconsin. Way
too much flexibility in the--so you just got to be very careful
that those States maintain strong State----
Mrs. Napolitano. Thank you, Mr. Ambs. That is a point,
because each State is different. They have different priorities
and, of course, they have different budget impacts. And you are
right, the laws may not be the same to protect as there are
now.
So, Mr. Chair, with that I yield back. I may have some
questions for the record.
Mr. Gibbs. Representative--Chip, go ahead.
Mr. Cravaack. Thank you, Mr. Chair. Mr. Creal, I had a
question in regards to listening to your testimony and Mr.
Ambs's testimony. Mr. Ambs is basically saying he can't do it
right in Virginia without Federal funding. Do you do it right
in Michigan?
Mr. Creal. We believe we do it right in Michigan. And I
would stress that EPA does provide us very good oversight on
our program. And they have the ability to object to our issuing
of the permit. And if we can't resolve their objections, then
the permitting process does revert back to the Army Corps of
Engineers. We have a set timeframe to resolve those.
But we think we have the statutes in place. We check very
closely with EPA to make sure we are consistent with Federal
laws, and that our State programs are adequately administered,
and we have done that for 28 years now.
Mr. Cravaack. So you think your State legislators and your
Governors take care of your water pretty well?
Mr. Creal. Yes, sir.
Mr. Cravaack. And your wetlands pretty well?
Mr. Creal. Yes, sir.
Mr. Cravaack. Would I get a concurrence with all the
Members at the table, except for Wisconsin? Why can't you do it
well in Wisconsin?
Mr. Ambs. Well, as I say, as it relates to the wetland
regulations, I just think in terms of being as stringent as
Federal law, this legislation that was passed this year--which
I actually testified in opposition to--I thought provided too
much flexibility and too much ability for applicants to be able
to fill in the wetlands of the State. So----
Mr. Cravaack. So, philosophically, what you are saying then
is you think that these gentlemen aren't going to be able to
take care of their States' waters as they should?
Mr. Ambs. No. What I am saying is that in each individual
State you are going to have to continually--the more States
that assume the 404 program, you are going to have to continue
to be very vigilant to make sure that they are as stringent
as--to meet the requirements under the Clean Water Act.
Mr. Cravaack. Well, my----
Mr. Ambs. And I would agree. I grew up in Michigan. I would
agree that the State of Michigan is doing a fine job with it.
But I am just saying those pressures are always going to be
there at the State level. And they are--they tend to be, when
you are dealing with dredge and fill permits, they tend to be--
my experience, 8 years as the lead regulator for the water
division in Wisconsin--they tend to be much more intense,
pronounced, focused, than they are in the NPDES permit.
Mr. Cravaack. But at the same time, as I am understanding,
is that you still have to comply with the Army Corps of
Engineer and the EPA. Is that correct?
Mr. Creal. It is EPA.
Mr. Cravaack. EPA.
Mr. Creal. When we have the permit program in Michigan, it
is EPA that reviews our programs and can object or----
Mr. Cravaack. So you are maintaining Federal standards, it
is just that you are implementing the program and streamlining
the process. Am I correct?
Mr. Elmaraghy. Yes. As a matter of fact, Ohio will not be
able to get delegation for a 404 program unless we show U.S.
EPA that our requirements are as stringent as the Federal
requirement. And in the NPDES permit program, our requirements,
most of the time are more stringent than the Federal
requirements to account for special features in Ohio, and
special conditions in Ohio.
Mr. Cravaack. I appreciate you bringing--I am from the land
of 10,000 lakes, or 100,000 mosquitos, whatever you want to
say.
[Laughter.]
Mr. Cravaack. But we--from Minnesota, we actually have
higher State laws, requirements, than we do Federal laws. So
our State laws actually are more stringent at times than the
Federal laws themselves, but we still must maintain the Federal
compliance.
So, even though you have the 404 permitting process
authority, you should--you would also be maintaining the
Federal standard. In essence, what we are doing is streamlining
the system so that we are able to cut out some of the
bureaucracy associated with it, so that you can get the permits
to the people that need them as quickly as possible.
Mr. Paylor, you said that you would have to make--you know,
if you do lose some funding, you have to make some type of
priority settings. Now, help me understand this. A lot of the
companies that I know--we are big in mining, for example--they
regulate their own water. I mean they will make sure that they
stay within compliance, because they know that, you know,
somebody is going to be coming around checking on them,
obviously.
But more importantly, we live in these communities. These
are our homes that directly affect our water that our kids
drink. So they are doing it because they want to be a good
citizen and taking care of our own natural resources. But can
you comment on that?
Mr. Paylor. I have no disagreement with that comment,
whatsoever. We have a pretty high compliance rate with all of
our facilities in Virginia. We do, in fact, periodically show
up to make sure that things are proceeding according to the
permit. But I absolutely agree with your statement.
Mr. Cravaack. A lot of these companies want to be good
citizens because, quite frankly, we live there. This is our
home. These are our counties and our State.
So, I am out of time, Mr. Chairman. I will yield back.
Thank you for your answers.
Mr. Gibbs. Thank you. I want to follow up a little bit. We
had a lot of discussion--I know, Mr. Elmaraghy, from Ohio, and
I am from Ohio, so I am going to ask you a couple more
questions because you made some points--made sense about
streamlining the process, staff local, and you know, and I am
all for more local control.
You said--in your last question you said that on the 401
permitting, under State statute, you have so many days to have
to get done--just what----
Mr. Elmaraghy. 180 days.
Mr. Gibbs. 180 days. Are you meeting--I know it is the law,
but are they--are you meeting that?
Mr. Elmaraghy. We imposed an internal deadline for us,
which is 120 days. We feel that these permits are needed to
create jobs. And it is our priority to protect the environment
and to create jobs in the same time. So we feel like it is
important for us to expedite these permits for all of us.
Mr. Gibbs. And it is actually happening.
Mr. Elmaraghy. Actually happening in 120 days. As of
yesterday, there is no permit pending in Ohio more than 120
days.
Mr. Gibbs. OK. Was that a substantial improvement in the
last couple years because you have been working at that, or
where was it before that?
Mr. Elmaraghy. Yes. Two or three years ago we had a
backlog, and some of the permits were pending more than 180
days. But we felt that is a very high priority for us, and that
is why we started to pay attention to try to streamline the
process----
Mr. Gibbs. Now, I guess----
Mr. Elmaraghy [continuing]. Reduce the number of days
needed to get the permit.
Mr. Gibbs. OK. Now, my understanding, the--when an entity
comes in here and, you know, applies for permits 404 and 401,
is it that 401 has to happen first? Did I hear that? Before the
404 process starts? Is that correct?
Mr. Elmaraghy. I think the applicant needs to apply for a
404 first, and then come with the 401 application.
Mr. Gibbs. But the 401--what happened before the 404 would
be approved by the Army Corps?
Mr. Elmaraghy. Yes, that is true.
Mr. Gibbs. They can't be concurrently--or--so the 401
happens and then the Army Corps would start their process on
the 404?
Mr. Elmaraghy. I think they will start maybe with a review
concurrently, but they cannot issue their 404 permit before
they have the 401 permit.
Mr. Gibbs. OK. Go ahead.
Mr. Littlejohn. Mr. Chairman, in Florida, the arrangement
we have with the Corps of Engineers is we implemented what we
call the joint permit application process, where the Corps and
the State have agreed to use the same application form. And an
applicant can submit an application to either the DEP or the
Corps of Engineers and, by interagency agreement, we distribute
copies of that application to the other agency.
So, we do process them concurrently. But the Corps of
Engineers, before they can issue their permit, they require our
State water quality certification, that 401 certification, from
Florida. So we do have to issue before them. We try to do it as
concurrently as----
Mr. Gibbs. Well, you see where I am going with this. I want
to make sure that we are, as public officials, doing due
diligence so that the entities who are applying--because you
are right, it is all about job creation. And the longer it
takes to get permits done because of bureaucratic red tape--and
so that is what this hearing is really all about, to figure
out, you know, how we can do it better, you know, we can
streamline it.
And so, that is why I was wanting to know, you know, what
the process really is. And then also, so we can get, I think,
apples to apples comparison, because there has been a little--
you know, from different States, on what Army Corps--how many
days it has been, and the 401, to get that all factored in. So
that is what I am trying to get a handle on.
So I know, Mr. Creal, when you talked about the--I think it
was you--do it a lot faster, I just want to make sure that we
are counting the days right when the Army Corps takes over.
So if--OK, if I came in and applied for a 404 and a 401
permit, OK, and start the clock counting, OK. And in Ohio, got
to get it done in 120 days. And the Corps can't do it, issue
the 404, until after the 401 is done, OK, how fast then would
we expect the Corps to be able to do it if I came in and
applied for both those permits the same day? Would I, as an
entity, expect the Corps to be able to have it done within 30
days after the 401 was issued? Or is there more lag?
I don't know who wants to--what is happening? What is, you
know, happening out there in the field?
Mr. Elmaraghy. Yes. There is a way we do it in Ohio. We
require the applicant to submit evidence that they already
submitted as a 404 permit application. But before the applicant
does the application, the Corps needs to do jurisdictional
determination and the wetland delineation. So a lot of legwork
needs to be done before you submit the application.
Mr. Gibbs. Mr. Creal?
Mr. Creal. Yes. In Michigan we run a consolidated permit
application where they submit one application and then the
State processes it. And if--we let the Corps know if they--you
know, that we have the permits, and if they need to process a
permit also. But--and we have the statutory deadlines, 90 days
with a wetland permit and 120 days with--that deals with
streams and lakes.
One of the--some of the confusion that results, though, is
we understand that the Corps counts time only after wetland
delineation and public noticing are done, whereas Michigan
counts the time from the day we receive an application. So that
is when our 90-day clock and 120-day clock starts. So we are
confident we are making decisions and issuing permits faster,
especially on the complicated, large projects that we are
dealing with, and the Army Corps of Engineers is.
Mr. Gibbs. OK. OK, I guess that is--Mr. Shuster?
Mr. Shuster. Yes, sir. I am sorry, I was down in a hearing
with Chairman Mica. And you may have talked about this
somewhat, but I would just like to get a reaction from the
various States on the general permitting process.
The Corps has decided to expand--when you take the stream
crossings from a category 1 to a category 3--and in
Pennsylvania it has caused tremendous delays in the permitting
process. And in fact, we can't figure out the reason why they
did it, except to give the Corps more work, justify why they
are there, because the Pennsylvania Department of Environmental
Protection for years--for 50 years or so or more--has done this
with little to no incident. And now we have got an expanded
Corps review process again slowing things down.
So, in general permitting, on pipelines especially, can you
just comment on what your experience has been over the past
couple of years with the Corps?
Mr. Paylor. Mr. Chairman, I would agree with Mr. Creal's
comments, that one of the delays can be how long it takes after
an applicant is ready to get a delineation in place. I would
say that for the simpler applications there is not a great deal
of delay between us and the Corps. The complicated
applications, there can be, you know, a significant multimonth
delay beyond----
Mr. Shuster. Right.
Mr. Paylor [continuing]. Beyond the time that the State is
able to act.
Mr. Shuster. Mr. Littlejohn.
Mr. Littlejohn. Mr. Shuster, in Florida I believe that the
Corps is still making a lot of effort to try to create new
general permits, to try to streamline activities.
However, there has been an erosion of the general permit
that the Corps issued to the State to act on its behalf, and it
is called the State programmatic general permit.
Mr. Shuster. Right.
Mr. Littlejohn. And since--in 2006, before the most recent
SPGP renewal, we had authority to act on behalf of the Corps
for nearly all of their regional general permits in the State
of Florida and the nationwide permits that were issued in the
State of Florida. And so we issued a significant number of
authorizations on behalf of the Corps, including in Section 10,
traditional navigable waters and adjacent wetlands.
But at the last renewal, the scope of authority under that
general permit granted to the State of Florida was
significantly reduced. And I am afraid that--and I hesitate to
speak on behalf of the Corps--I think that they are probably
reacting to growing concerns from other Federal commenting
agencies that these general permit authorities were too broad.
And so they were essentially requested to constrict them back
to a much smaller----
Mr. Shuster. But what was the history? I mean did you have
incidents? Did you----
Mr. Littlejohn. Not that I am aware of, sir.
Mr. Shuster. That is--so the evidence is you were doing a
fine job, and with no incidents or very few. So--OK.
Mr. Littlejohn. No, sir. I don't--I have asked them during
discussions about once again expanding our State programmatic
general permit. If we can establish some way to audit the
decisions that we make so they would get more comfortable--
because I think there is just uncertainty that whatever the
State is doing, they don't have enough oversight over.
Mr. Shuster. Even though you have been doing a great job,
in your opinion--and probably mine, too. OK.
Yes, sir?
Mr. Elmaraghy. In Ohio, we don't have a State programmatic
general permit. However, we have a nationwide permit, which is
really making things great for a project which does not have a
big impact. But that is something we need to explore if we can
use the State programmatic general permit to streamline our
program. Something we need to do.
Mr. Shuster. And the Utica, as it starts to come into play
more and more in Ohio, it is going to be something you want
to----
Mr. Elmaraghy. Sure.
Mr. Shuster [continuing]. Get that oil and gas out of the
ground as quick as possible----
Mr. Elmaraghy. Sure.
Mr. Shuster [continuing]. To create jobs, and----
Mr. Elmaraghy. But a State programmatic general permit does
not resolve all the issues. You still have two Government
agencies involved in the same project.
Mr. Shuster. Right.
Mr. Elmaraghy. And there--Federal involvement in the 402
programs, NPDES permit program. And especially the enforcement.
Any time you have joint enforcement between Ohio EPA and the
U.S. EPA, some of the cases took 10 years, like Akron.
Mr. Shuster. Right.
Mr. Elmaraghy. Akron, we have 10 years of litigation
without settling the case. It is just any time you involve more
players the process becomes more complicated and takes longer.
Mr. Shuster. Right.
Mr. Elmaraghy. That is just as simple as that.
Mr. Shuster. Mr. Creal?
Mr. Creal. I would just like to note that Michigan issues
the pipeline permits, not the Corps of Engineers in Michigan,
and we have done a very good job of doing that.
We have a complication, though. We had the Enbridge
Pipeline break in 2010, about a million gallons of crude oil
spilled into the Kalamazoo River. We are still working with EPA
and Enbridge to clean that up, which has made our public very
sensitive to pipeline permits and very aware of the easements
that the pipeline companies have. Enbridge is in the process
now of replacing that pipeline, which cuts across southern
Michigan. And a lot of residents are very sensitive and much
more knowledgeable than they were 2 years ago about where
pipelines are in Michigan.
Mr. Shuster. OK, thank you. Mr. Ambs, if you have a--if the
chairman will indulge for another----
Mr. Ambs. Thank you. Yes, just quickly, as Mr. Creal said,
we also had some issues with pipelines and actually significant
wetland violations for pipeline installation in Wisconsin.
But, you know, generally speaking, again, the experience in
Wisconsin, we are able to process permits quickly. We have got
joint permits. As I mentioned in my testimony, these are--94
percent of them get approved, they get approved quickly. The
challenge here, I would submit, is that you have to be very
careful about those difficult questions, those difficult
requests to dredge and fill that require difficult
delineations. You have got to have adequate staff and you have
to have time to do it right.
And I get very nervous about very tight statutory deadlines
for those sorts of projects because, from my standpoint in
Wisconsin, when I look at those questions I am not just looking
at job creation relative to the permit that is going to be
issued. I look at continued job retention in the State of
Wisconsin, where our third largest industry is tourism. We get
$13 billion a year from the tourism industry, and we get it
because we have good, plentiful water and wetland resources.
And if it takes some time to make sure that those are protected
on complicated permits, I think it is well worth it.
Mr. Shuster. Thank you. Yield back.
Mr. Gibbs. Mr. Bishop?
Mr. Bishop. Yes. Very quickly, Mr. Chairman, thank you.
Mr. Littlejohn, the decision that you are referring to that
limited the scope of the general permit, you are referring to
the 2007 decision that was made?
Mr. Littlejohn. Yes, sir. At that time, we were operating
under what we call the SPGP3, the third iteration of our first
SPGP from the Corps. And it was replaced by the SPGP4 in 2006.
Mr. Bishop. OK.
Mr. Littlejohn. And so that replacement document----
Mr. Bishop. It is the one that imposed the limitation?
Mr. Littlejohn. Our very first SPGP authorized four types
of activities: docks, shoreline stabilization, like sea walls,
boat ramps, and maintenance dredging. So four major categories
of activities. And we had those, only those, activities in our
SPGP until 1997, when it was expanded to include all of the
general permits and nationwide permits--essentially all of
them, not all of them. But in 2006 it was reduced back to those
four original activities.
Mr. Bishop. OK. All right. Thank you for the clarification.
Mr. Littlejohn. Yes, sir.
Mr. Gibbs. I believe we have had our questions answered.
And I want to thank you for coming. And at this time we will
stand at ease while we excuse our panel and bring up our next
panel. Thank you for being here.
[Recess.]
Mr. Gibbs. OK, we will come back in order. At this time I
want to welcome our panel two. We have the Honorable Jo-Ellen
Darcy, who is the Assistant Secretary of Army for Civil Works,
and Ms. Denise Keehner, who is the director of the Office of
Wetlands, Oceans, and Watersheds of the U.S. EPA.
I guess I didn't--wetlands, oceans, and watersheds. That is
an interesting--I didn't ever hear that one before.
[Laughter.]
Mr. Gibbs. We will start with Secretary Darcy. Welcome, and
the floor is yours.

TESTIMONY OF JO-ELLEN DARCY, ASSISTANT SECRETARY OF THE ARMY
FOR CIVIL WORKS; AND DENISE KEEHNER, DIRECTOR, OFFICE OF
WETLANDS, OCEANS, AND WATERSHEDS, U.S. ENVIRONMENTAL PROTECTION
AGENCY

Ms. Darcy. Thank you. Thank you, Chairman Gibbs, Ranking
Member Bishop, and members of the subcommittee. I am Jo-Ellen
Darcy, the Assistant Secretary of the Army for Civil Works.
Thank you for the opportunity to discuss the Army Corps of
Engineers regulatory authority under Section 404 of the Clean
Water Act and the Corps' role and involvement when a State
wishes to assume the Section 404 program.
Since 1972, the Corps has regulated discharges of dredged
or fill material into waters, including wetlands, of the United
States under Section 404 of the Clean Water Act related to
activities such as highway construction, residential,
commercial, and industrial development, and energy projects.
Section 10 of the Rivers and Harbors Act of 1899 gives the
Corps the authority to ensure there are no obstructions to the
navigable waters of the United States by work and structures
such as peers, jetties, and weirs. Thus, the Corps had been
regulating activities in the Nation's navigable waters for over
70 years when the Clean Water Act was passed.
Regulatory programs are implemented day-to-day by the Corps
at the district level by staff that knows their regions and
their resources and the public that they serve. Nationwide, the
Corps makes tens of thousands of final permit decisions
annually. Activities that are similar in nature and are
expected to cause no more than minimal effects individually and
cumulatively may be authorized by a general permit, while
activities that do not meet the criteria for a general permit
are typically evaluated under a standard individual permit
procedure.
All permits meet the requirements of the National
Environmental Policy Act, and the Corps can only authorize
those activities that are not contrary to the public interest.
In carrying out all aspects of the regulatory program
implementation, the Corps acts as neither an opponent nor a
proponent for any specific projects. Rather, the Corps'
responsibility is to make fair, objective, and timely permit
decisions.
Under Section 404(g) of the Clean Water Act, Congress gave
tribes and States the authority to administer their own
individual and general permit program for the discharge of
dredged or fill material into waters within their jurisdiction.
The process for approval of the Clean Water Act State
assumption program rests with EPA.
There are two States, as you know, that currently have
assumed 404: Michigan adopted the program in 1984 and New
Jersey adopted it in 1993.
There are activities in certain waters where the Corps
retains regulatory authority, even in States that have assumed
the 404 program. The Corps retains permitting authority in
traditionally navigable waters and adjacent wetlands. This
retained authority includes jurisdiction over Section 404
activities, as well as all Section 10 activities. All Section
10 authority is retained by the Corps in order to review and
determine whether any proposal may potentially impede or
interfere with navigation, to ensure that essential Federal
functions such as national defense, protection of commercial
navigation, and flood control are considered from a broad
perspective.
EPA is responsible for oversight of a State-assumed Clean
Water Act Section 404 program. In that role, EPA directly
reviews a small percentage of permit applications processed by
a State that has assumed the Section 404 program. When EPA does
review a permit application, they transmit that application to
the appropriate Corps district office for review and for
comment.
Several other States, including Alabama, Florida, Kentucky,
Minnesota, Ohio, Oregon, and Virginia have in the past or are
currently considering assuming the Clean Water Act Section 404
program. When requested, the Corps has provided input and
expertise on the Section 404 program to the EPA and States
during the program assumption review process.
In every instance in which a State has an effective program
to protect aquatic resources, the Corps has demonstrated its
willingness to minimize duplication of regulatory effort
between the State program and the Federal Clean Water Act
Section 404 program to reduce the burden on the public. In many
cases, this has been effectively done by working cooperatively
with States to establish joint permit processing, as well as
State programmatic general permits and regional general
permits.
In States such as Florida, as you have heard, there is a
large amount of traditionally navigable waters and adjacent
wetlands, which are not able to be assumed by a State under the
Clean Water Act or under Section 10 of the Rivers and Harbors
Act. Often times a State programmatic general permit or
regional general permit provides solutions.
Developed in coordination with the Corps, these permits are
general permits that authorize activities conducted in
accordance with the State or tribal permit programs. It allows
States or tribes to evaluate applications and issue permits
consistent with the Clean Water Act and tribal or State
regulations. This reduces duplication of effort, thus
increasing efficiency.
These general permits apply to specific activities,
geographic areas, resource types, or sizes of impacts. There
are currently eight States that have these State programmatic
general permits: Maryland, Pennsylvania, Florida, New
Hampshire, Vermont, New Jersey, Virginia, and North Carolina.
Some of the main challenges that are faced in State
assumption processes are the lack of funding, the need to
revise or expand existing State laws and regulations, and
jurisdictional issues that may arise.
It is important to note that States have authority under
the Clean Water Act Section 401 and the Coastal Zone Management
Act to add conditions to protect aquatic resources that the
State sees are necessary, and which complement the Clean Water
Act Section 404 program.
The Corps provides data to inform States and EPA regarding
aquatic resources, and can provide information pertaining to
the administration of the Clean Water Act Section 404 program
in a given geographic area. But, EPA is the decisionmaking
authority for State assumption.
Thank you for the opportunity to testify this morning, and
I am happy to answer any questions you might have.
Mr. Gibbs. Thank you.
Ms. Keehner, the floor is yours. Welcome.
Ms. Keehner. Good morning, Chairman Gibbs, Ranking Member
Bishop, and members of the subcommittee. I want to thank the
subcommittee for its invitation to be here at this hearing
today, whose purpose is to better understand the impediments to
and the benefits of assumption of the Clean Water Act Section
404 program by States. My name is Denise Keehner, and I am the
career executive at EPA headquarters that has responsibility
for implementing the national wetlands program. I am the
director of the Office of Wetlands, Oceans, and Watersheds in
EPA's Office of Water.
Protecting and restoring our Nation's waters, as is the
mandate of the Clean Water Act, requires very strong
partnerships between tribes, States, and Federal agencies and
departments. EPA is committed to working with those States and
tribes who want to increase their role in the protection and
restoration of waters nationwide. EPA supports tribal and State
assumption of the Clean Water Act Section 404 program, and is
ready and willing to assist any State or tribe who is
interested in assuming the program.
In my testimony today I will address the requirements,
benefits, and challenges associated with assumption of the 404
program, EPA's role in the assumption process, and our efforts
to support States and tribes who want to increase their role in
wetlands protection and restoration.
Section 404 of the Clean Water Act establishes a program to
regulate, or permit, the discharge of dredged or fill material
into waters, including wetlands. Section 404 of the Clean Water
Act designates the Army Corps of Engineers as the Federal
agency responsible for issuing these permits. However, Congress
decided in 1977 to amend the Clean Water Act to enable States
to assume permitting authority for certain waters under Section
404. In 1987 Congress extended the same authority or
opportunity to tribes.
A State or tribe seeking to administer the 404 program for
assumable waters must submit a request for assumption to the
appropriate regional administrator of EPA and demonstrate in
the submission that their program has the legal authority in
State law and regulation to issue permits consistent with and
no less stringent than the Clean Water Act and its implementing
regulations, including the 404(b)(1) guidelines, that it has an
equivalent scope of coverage for those waters they--States or
tribes--may assume, that it regulates at least the same
activities as the Federal program, that it provides for public
participation, and that it has adequate enforcement authority.
A State or tribal program under 404 can be more expansive
and/or more protective of aquatic resources than the Federal
404 program. But the Clean Water Act requires that State and
tribal 404 programs must, at a minimum, regulate all the waters
they are eligible to assume. State programs have to regulate
the same fill activities that the Federal Government regulates.
And also, State programs have to be consistent with the
404(b)(1) guidelines.
EPA has, in the past, undertaken efforts to better
understand why States pursue 404 assumption, and to better
understand what States consider to be some of the impediments
or most significant barriers to 404 assumption. When we ask
States why they pursue 404 assumption, you heard some, I think,
of the reasons from the States that testified this morning.
This desire to have a single permitting authority. Some States
also believe that they can do it more efficiently. Some States
feel that they know their waters better, and are in the best
position to exercise permitting authority under a 404 program.
Some of the most frequently mentioned barriers to
assumption are that State laws and regulations are not
consistent with the Clean Water Act and its implementing
regulations, and that there is a fairly heavy lift associated
with changing State laws and regulations to be consistent, that
there is a lack of sufficient funds for implementation, that
there is a lack of EPA authority to approve partial assumption
or phased assumption.
Depending on the State, the number of waters that must
remain by law under Army Corps of Engineers jurisdiction can
also be a factor and an impediment to a State wanting to move
forward in an aggressive way to assume the 404 program.
EPA supports States and tribes that want to assume the 404
program by: providing funding for program development through
the Wetland Program Development Grants, and that can include
some work after the State has received authority to implement
the 404 program to actually improve certain aspects--develop
tracking systems, for example, and engage early in the State
and tribal process. We have worked very cooperatively with
States and tribes to ensure that the process and requirements
are understood. We remain engaged during the development of
materials to be submitted to EPA in the application process.
And we review and approve program assumption applications
consistent with the Clean Water Act and its implementing
regulations.
Once the program is assumed by a State, we have an
oversight responsibility to ensure that the State and tribal
404 program remains consistent with the Act and the
implementing regulations, and that the permits that are issued
comply with the environmental review criteria found in the
Section 404(b)(1) guidelines.
EPA has maintained very sound, productive relations with
both Michigan and New Jersey, the two States that have already
assumed the 404 program. We have a strong professional and
supportive working relationship with these State programs. We
know, from working with these States, that these programs are
strong and effective in protecting aquatic resources in those
States.
EPA has also worked with the Environmental Council of
States and the Association of State Wetland Managers to clarify
requirements and the process for assumption. For example, EPA
has clarified that Section 7 consultation under the Endangered
Species Act is not required for EPA's action to approve a State
program, or for individual permits that States issue after they
have assumed the program. EPA also supported the Association of
State Wetland Managers and ECOS in the development of a
handbook to help States that are seeking assumption to better
understand both the process and the requirements.
In addition, we have also sponsored training workshops in
partnership with the University of North Carolina, where
information was shared amongst States and tribes across the
Nation about successful approaches to sustainably financing
wetland programs, including 404 programs.
EPA appreciates the opportunity to be here today to have
heard directly this morning from the States about their views
on the impediments to and the benefits of assumption of the 404
program, and we look forward to continuing to help those States
and tribes who are interested in assuming the program move
through the process in an effective and efficient manner.
It is clear that our collective ability to protect and
restore our Nation's waters is significantly enhanced by
effective State and tribal programs. Thank you.
Mr. Gibbs. Thank you. I am going to yield to my ranking
member, Mr. Bishop, because I think he has a schedule conflict.
Mr. Bishop. I do, and I thank you very much for indulging
my schedule, Mr. Chairman. And I thank our witnesses. I just
have one question. It is for Secretary Darcy, and it does not
relate to the assumption of Section 404 permits.
I have recently become aware of a legislative proposal that
I believe is circulating within the Corps that would propose to
outsource existing operation and maintenance responsibilities
that the Corps traditionally had undertaken to private
contractors, and that this is an effort on the part of the
Corps to respond to declining budget levels.
And it is my further understanding that there is an
assumption within the Corps that engaging in this practice
would reduce O&M expenses by somewhere between 10 and 20
percent.
So I have two requests. And I am not authorized to speak
for the committee, so I will simply make the request for me.
One is could you provide me with any studies, assessments,
analysis that have been done that buttresses this 10 to 20
percent savings reduction, one. And two, could you provide me,
in writing, the status of this proposal? How far along it is,
in terms of the Corps process?
Ms. Darcy. Well, yes. We will definitely do that,
Congressman. I think one of the areas of concern is the fact
that we are looking at ways to finance our aging
infrastructure. As you know, that is a concern from every
aspect, whether it is looking for private funds for the
operation and maintenance, or looking for other sources of
revenue in order to meet those demands. But as far as
privatizing a workforce, I will provide you whatever we have
been considering, from that perspective.
Mr. Bishop. If you could, I appreciate that.
Mr. Chairman, I yield back. And thank you again for
indulging my schedule.
Mr. Gibbs. OK, thank you. I will start off here. You heard
from the panel one, the States, that said they think they can
do it more cost effectively, streamlining it, closer to the
people, all that.
I guess, Secretary Darcy, can you kind of respond if you
think that is possible? Or where does the Corps stand on that?
Or why--or, if it is true, why is the cost higher with the
Corps doing it?
Ms. Darcy. As you know, only two States have the program.
Mr. Gibbs. Yes.
Ms. Darcy. We have to administer the program in all the
other 48 States. We have offices in every State. In some States
we have several regional offices to just do implementation of
our regulatory program.
I don't think we have done an analysis of the cost savings,
but as you know, it has been demonstrated here by Michigan, in
particular, and the proponents of the Virginia assumption, that
they would be able to do it for $3 million, as opposed to our
current $7 million. But it is not exactly comparing apples to
apples, because that $7 million figure is for our entire
regulatory program, not just for the 404 program.
Mr. Gibbs. OK. Ms. Keehner, I guess--I have heard some
feedback. If a State wants to move in this direction and apply
for assumption, they go through the regional offices, the
regional administrator. And how would that mechanism work?
Because I guess I get a little concerned. I have heard, you
know, over the years in my State legislative capacity there is
some times, you know, different things coming out from
different regional offices that maybe aren't apples to apples,
and we might hear how a different regional office--so how would
that interact, and what was your role in--to facilitate that?
Ms. Keehner. Well, the EPA headquarters office of the
Office of Wetlands, Oceans, and Watersheds, we have a division
that is responsible within that office, the Wetlands Division,
for working in cooperation and collaboration with both State
partners, as well as our regional offices. There are many
opportunities for coordination and collaboration across the
Nation. There are, you know, conference calls that are held----
Mr. Gibbs. When a State like Ohio--would they be working--
--
Ms. Keehner. With region five, yes.
Mr. Gibbs. Chicago office?
Ms. Keehner. Yes.
Mr. Gibbs. And so they would go through there first, before
it gets to you here, in DC?
Ms. Keehner. The regional administrator is the--is actually
the approving authority for the assumption. So we would be--I
mean we were very--in EPA's regional offices, there is a lot of
communication and coordination that occurs with headquarters,
particularly on issues as important and significant as a 404
assumption. There would be dialogue that would occur between
the regional office staff and our--my headquarters staff--and
Office of General Counsel, as well.
Mr. Gibbs. OK.
Ms. Keehner. And there is always concurrence on those
packages with headquarters, Office of General Counsel, Office
of Water and OECA before it is final.
Mr. Gibbs. I am just looking for some uniformity.
Ms. Keehner. Right.
Mr. Gibbs. You know, make sure we have that. Because I know
there has been instances before, you will hear--we will hear
things about the region five office and, you know, interpreting
things maybe different than another region. And that is--you
know, the uniformity aspect of that.
I guess I will just start--let's see. We don't have any
Democrats here any more, do we? Who wants to go next? Mr.
Shuster?
Mr. Shuster. Sure. Thank you, Mr. Chairman. Secretary
Darcy, pipelines, permitting, the delegation, the Pennsylvania
Delegation. We sent you a letter. We appreciate your response
to us. But in your response to us you acknowledge and restated
the goal of eliminating duplicative--the review process.
However, the new approach that the Corps is doing is just the
exact opposite, in my view, and the view of my colleagues--most
of my colleagues--and the view of our DEP. As well as taking
the exact opposite approach, it is also not--we don't believe
there is any additional environmental benefit to the approach.
And furthermore, we don't believe Pennsylvania is being
treated like other States are being treated. The average--
Pennsylvania's mid-stream permits are averaging about 150 days
now, give or take, under GP4. Other States with nationwide
permitting have a maximum of 45 days, and in some cases don't
require the Corps to even approve.
And so, first question is why is Pennsylvania being treated
differently? And then we will get on to a couple other
questions.
Ms. Darcy. Congressman, are you referring to our nationwide
permits, or the general permits?
Mr. Shuster. Well, general permits in Pennsylvania. But my
understanding, when I talk to the nationwide permits, there are
other States, not--Pennsylvania is not one of them--that don't
even have to have Corps followup.
Ms. Darcy. Well, on our nationwide permits, if you are
referring in particular to pipeline permitting----
Mr. Shuster. Correct.
Ms. Darcy [continuing]. Under our nationwide permits for
pipelines, if you are intending to cross a wetland, or for your
pipeline, you have to submit what is called a pre-construction
notice to the Corps of Engineers. Within 45 days of that time,
if we do not require any changes or differences, you are
allowed to go ahead with that. That is a nationwide permit,
that applies everywhere in the country.
Mr. Shuster. Right.
Ms. Darcy. Regarding the general permit for Pennsylvania
that you are referring to for pipelines, my understanding is
that we are currently in discussions with the pipeline
companies in Pennsylvania to help to develop that general
permit.
Mr. Shuster. Right. And that is--but again, what you have
done is you have changed from a category 1 to a category 3. And
for a long time, a long period of time, Pennsylvania DEP
approved those under a category 1 status. Now, under category
3, they have to go through and, again, there are significant
delays.
And we have--I think you have been in talks with the
pipeline companies for some time now. This is about--first of
all, we want to do it environmentally in a sound way, to
protect the environment, which our Secretary Krancer is doing a
great job and, trust me, he is feared by the pipeline or the
energy companies, because they know if they do something
willfully, he is going to come down on them hard.
But we have taken away the ability for Pennsylvania to
quickly approve these pipelines, the gathering lines, stream
crossings. Again, and that is an expansion of what the Corps
has done. So can you tell me why have you done it? I mean
Pennsylvania wasn't a bad actor, they did a great job. So I
would understand that if we were out there, doing the wrong
things.
Ms. Darcy. I don't know the answer. But what I can tell you
is that I expect that the reason for why it is taking longer
may be because when we issue general permits there has to be a
public notice and comment period, and we have to respond to the
comments. I can't tell you for certain.
But what I can tell you is that I will personally look
into----
Mr. Shuster. What I would prefer to see is us go back to
letting them be category 1, where they fall under the State
review. And now, today, 90 percent of them under category 3
have to be reviewed. And that is a significant challenge to the
State of Pennsylvania and to these energy companies. And it
just seems to me, under category 3--or, excuse me, under
category 1, the impacts were temporary and minimal. And those
stream crossings are all temporary and minimal in most cases.
So again, I would like the Corps to go back and reverse itself
and put us back into category 1. Because, again, I just don't
see any reason for it to penalize Pennsylvania by doing this.
Can you talk about that?
Ms. Darcy. What I can tell you is that I will look at it
and see why they are considered category 3. Because right now I
can't, off the top of my head, tell you why.
Mr. Shuster. And I don't know if you have ever interacted
with Secretary Krancer, but I would highly recommend you--I
mean this guy is outstanding. We have had him in front of
Congress a number of times. He is a former judge, former
environmental judge, who wants to do things right for
Pennsylvania. He cares about Pennsylvania as much--I should say
more--than the Corps of Engineers or more than the EPA, because
he is a Pennsylvanian. And again, he has a great respect from
the energy companies because they know if they do something
willfully, if they do something knowingly, he is not going to
tolerate it.
So, I would hope that we could again move past this and get
these energy companies back to drilling and getting the energy
out, paying the royalties to the folks that have leased their
land to these people, because it adds to the economy
tremendously in Pennsylvania. So thank you.
Mr. Gibbs. I would just like to also ditto on what the
representative just said. He testified before this committee
and they had a problem in Pennsylvania and they shut it down in
27 hours when they realized they had a problem. And I don't
think anybody could have moved that fast, so I was impressed.
Mr. Cravaack, do you have any questions?
Mr. Cravaack. Oh, yes. Thank you for being here today.
Madam Darcy, could you please tell me what constitutes a waters
of the United States? How does--how do you go across that
determination?
Ms. Darcy. We have a definition that is in the statute, as
well as in our regulation and EPA's regulation on what
determines a water of the U.S. I used to know this off the top
of my head, but it is defined in statute.
Mr. Cravaack. You can get some help from your wingmen if
you need it, you know.
Ms. Darcy. William? Where are you, William? Well, Ryan
probably can do it, too.
The significant nexus to an existing body of water. Is that
right?
Mr. Cravaack. Definition of nexus?
Ms. Darcy. Connection is----
Mr. Cravaack. Well, if you could give our office a
reasoning why the Mille Lacs Lake in the middle of Minnesota,
which is by the Army Corps of Engineers, considered a
nonnavigable lake----
Ms. Darcy. What is the name of the lake, Congressman?
Mr. Cravaack. Mille Lacs Lake.
Ms. Darcy. Mille Lacs.
Mr. Cravaack. Why the United States Government took that
from the State? I would love to hear that. Because we actually
have a bill to prevent it. And I would like to know what the
Army Corps of Engineers genesis was when they actually--in the
report itself it said it is not navigable. But anyway, I would
love to hear that from you in the future, though we do have
legislation that has passed the House into the Senate, and
hopefully we are going to hotline that with Senator Klobuchar
over there.
How long do you think it would take for the State to assume
a permitting process? And does the Federal Government really
support that, in your opinion?
Ms. Darcy. Assuming the 404 process?
Mr. Cravaack. Right.
Ms. Darcy. I am going to defer to EPA, because they are the
ones who----
Mr. Cravaack. OK.
Ms. Keehner. The experience that we have had with the State
of Michigan and New Jersey, for the State of Michigan, from the
time the State began the process of developing its program
until authorization, I believe, was 5 years. And the State of
New Jersey, I believe, was 8 years.
Mr. Cravaack. OK, 4 and 8 years. How do you view the
States? Do you--Mr. Creal had an excellent--I mean I was really
impressed when he says he views, you know, companies and--do
you view them as customers?
Ms. Keehner. Do I view the States as customers?
Mr. Cravaack. Customers and companies within the States as
customers.
Ms. Keehner. Of the Federal Government and of regulation?
Yes, they are--States are both partners in the implementation
of the Clean Water Act. In this case, they are also customers
of EPA, in the sense that EPA has obligations and
responsibilities to provide interpretations, guidance,
direction. We run grant programs. So, yes.
Mr. Cravaack. OK. Well, we have had a lot of troubles with
EPA in Minnesota in regards to--for example, some of our
mining, for example, where the States--actually, and some of
our restrictions are even more strict than what the EPA puts
out. And yet the EPA swoops in and says, ``We are not going to
follow your State guidelines, and we are going to go ahead and
do what we want to do,'' mainly--it is out of your
jurisdiction, probably, regarding air quality--it is a haze
issue, actually, which, really, the Federal Government
shouldn't have any direct input in implementing, anyway.
So, I really question if the EPA wants to partner with
businesses and States, or they wish to mandate to businesses
and States. Because I would like to see Federal Government
partnering with companies and States to create jobs, while at
the same time protecting our environment.
In the 2 years I have been here--and I admittedly am a
freshman--but all I have seen is the Federal Government coming
in and playing Gotcha, instead of partnering with companies,
with States, and say, ``How can we do this better together,
while increasing jobs and at the same time make sure we all
take care of our environment?'' And that is just an
observation. So I hope that you will possibly take that back.
Ms. Keehner. Thank you.
Mr. Cravaack. What is the process, in your--Ms. Darcy, what
is the process for actual determining--we kind of asked that
earlier, but, you know, how do you go about determining what is
a water body of the United States? How would that be? You see a
water--and I have a specific issue in mind. But how do you go
about saying that this is now a Federal body of water?
Ms. Darcy. To determine it is--we have what is called a----
Mr. Cravaack. Not even navigable, but it just becomes a
body of water for the United States.
Ms. Darcy. We have, through our regulations, what is called
the delineation manual that all of our folks on the ground and
our districts utilize to make a determination as to what is
navigable. It depends on the amount of water, the time of year,
what the vegetation is, what the aquatic life is there, for
example. All of those things go into determining whether it is
a water of the U.S. for jurisdictional reasons.
Mr. Cravaack. Can you explain to me how a body of water
could be in existence for 25 years, and then all of a sudden
the Federal Government comes in and says it is now a Federal
body of water?
Ms. Darcy. That it was at one point and is no longer? Is
that----
Mr. Cravaack. No. It was not a Federal body of water, and
all the sudden the Government swoops in and says now it is a
Federal body of water.
Ms. Darcy. I can only speculate that perhaps the nature of
the--whether it is a lake or river--has changed over time, has
increased, and now perhaps supports aquatic wildlife that it
didn't before.
Mr. Cravaack. OK. All right. I see my time has expired.
Thanks for the indulgence to the chair, and I will yield back.
Mr. Gibbs. Ms. Herrera Beutler?
Ms. Herrera Beutler. Thank you, Mr. Chairman. A couple of
questions. You know, and a general statement on the NPDES and
the nationwide permitting. I don't know who is responsible,
because when I work with my local Corps, both--I am in
southwest Washington, so I deal with both the Portland Corps
and the Seattle Corps, depending on where we are.
And I have seen very--you know, we have new colonels right
now doing a great job working on reducing permitting times. But
the numbers that he shared with you, Mr. Shuster, are far and
away worse in our neck of the woods. And what I hear--what I am
hearing is, as the colonels are trying to make a--I mean we are
hundreds of days longer on both of those than--you can pull out
several different Corps offices, district offices. We are
hundreds of days beyond that. And we are not talking about for
permitting a pipeline or a mine. We are talking about building
a building.
I mean it is--I almost wish our problems were with
permitting, you know, the more onerous types of projects. It is
building a shopping center in basic areas. I mean we had people
who had to--cities who had to either give back--have been in
danger of losing their stimulus grants because they just didn't
know if they could get a permit in under 200 days. I mean it is
drastic, and something absolutely has to change.
The efforts that I have had from the colonels on both--the
new colonels commanding both districts have been tremendous. I
appreciate them. But as they tell me when they do--they have
shown me numbers. When they are doing the permitting alone, the
permit times are less. But when they have anything to do with
the EPA is when it gets bad. And they didn't say it like that,
I am not trying to throw anybody under the bus. But it
significantly lengthens the amount of time it takes to get one
of these two permits.
I want to know from either of you who on this level my
office can turn to with specific examples to change that? I
mean at this point I don't know who the problems are, but we
have double-digit unemployment in my neck of the woods, and
tremendous projects ready to go that the Federal Government
has, on the one hand, said, ``Hey, here is stimulus money.'' On
the other hand, we can't even--we can't get a permit to build a
building.
So I guess I am asking from both of you who I can turn to
here who is going to make something happen. And I am not saying
permit things that are--shouldn't be permitted. I am talking
about the basics.
Ms. Darcy. I think you are looking at how we can speed up
the coordination process that is required when we have to
process a permit. We do have to coordinate with EPA or the Fish
and Wildlife Service or locals. We also have to coordinate with
the State historic preservation office--there are all kinds
of----
Ms. Herrera Beutler. Well, this is one of the things I was
told was, ``Well, maybe there is more sensitive environmental
or tribal issues in this area, as compared to a different
district.''
And I said, ``Well, why are we hundreds of days different
than the Portland Corps, because they have the same
environmental and tribal issues that we do in Washington''--I
mean I live right on the border. They are very, very similar.
So, yes. It is the streamlining process, perhaps.
Ms. Darcy. One thing I think we can look at doing is
coordinating with our sister agencies earlier in the process.
We often get a permit application and it is not complete, so
that takes time. You have to go back to the applicant and
request information, for example.
But, if coming in the door we know that there is an
endangered species, or we know that there is a possibility for
impacts to a wastewater treatment system or something, we
could, earlier in the process, coordinate with our----
Ms. Herrera Beutler. Do you do a type of concurrent
permitting? Because one of the things I found was people will
turn everything in and not be told for 4 weeks that there--it
is an incomplete--or there was something else. Or it wasn't
even incomplete. I have stories where people have completely
done everything they were supposed to do, and then they just
wanted more information. But they didn't find out that they
wanted more information until it had already been sitting on
someone's desk for a month.
I mean is there a process that we can--where do I go--
because I have been trying at those levels to fix this, and it
is not working. So I have you both here.
Ms. Darcy. Well, as you know, it is Corps districts who do
our permitting, and it is the ultimate decision of the District
Commander in all instances whether a permit is granted or not.
But I think, in looking at streamlining, I think it was the
Portland district, or maybe the Seattle district, years ago we
got a provision in law referred to as Section 214 that gave
additional funding to permit processing. And it has been very
successful. And that has helped. But it is clear that it is not
helping enough in getting this more expeditious----
Ms. Herrera Beutler. So who in your office is--who could
raise their hand that we could----
Ms. Keehner. I would be happy to follow up with that region
and the office in Seattle with the specifics of the cases.
Ms. Herrera Beutler. Great.
Ms. Keehner. And--so that we can better understand,
really----
Ms. Herrera Beutler. Great.
Ms. Keehner [continuing]. What was the nature of any
problem.
Ms. Herrera Beutler. And the challenge I have is that
they--my folks can demonstrate a difference between the
Portland office and the Seattle office.
Ms. Keehner. We will take a look----
Ms. Herrera Beutler. I mean they can demonstrate it. One
more quick thing. As we are talking about this 404 and letting
the States assume this authority, what would the difference
be--I see that under Section 10 of Rivers and Harbors the Corps
would retain authority to--even if this is transferred to the
States, would they still be able to say, ``Hey, wait a minute,
you are going to impede a navigable water''?
Ms. Darcy. Yes, Congresswoman. We don't have the authority
to delegate the Section 10----
Ms. Herrera Beutler. Great.
Ms. Darcy [continuing]. Responsibility.
Mr. Gibbs. Yes----
Ms. Herrera Beutler. So that doesn't go away.
Mr. Gibbs. Congress would have to change the law for that
to happen.
Ms. Darcy. Yes.
Ms. Herrera Beutler. Great. Thank you. Thank you, Mr.
Chairman.
Mr. Gibbs. Mrs. Capito?
Mrs. Capito. Thank you. Thank you both for your testimony.
Secretary Darcy, first of all, I want to thank you. I am
Shelley Moore Capito from West Virginia. Thank you for the
letter that Congressman Rogers and I had written about the
permitting. As you know, West Virginia has had some deep
difficulties with our permitting issues and with the
coordination, and I appreciate the chart that you sent me
updating the latest.
And you also know that the Corps has struck down the
enhanced coordination procedures that were put into effect by
the EPA. I believe that was in 2009, early 2009.
I would like to know from you, Secretary Darcy, how has the
interaction between the Corps and the EPA changed since the
2012 court decision? Because, basically, my understanding at
the basic is the court said this enhanced coordination
procedure is unlawful and an overreach by the EPA.
So, I am assuming it has been dropped. But is that in
reality what is happening? And----
Ms. Darcy. Yes.
Mrs. Capito [continuing]. What has changed?
Ms. Darcy. What has changed is we have gone back to the way
we were operating before the enhanced procedures process in
2009, as a result of the court decision this year.
Mrs. Capito. And the District Commander is making the
decision without the EPA having the ability to come back and
review after they have already approved the water standards, et
cetera?
Ms. Darcy. The District Commander still retains the right
to make the decision. He also still has the ability to ask for
additional information or coordination. But it is not the same
process that we put in place in 2009.
Mrs. Capito. Right. Then what is the EPA's role right now,
then?
Ms. Keehner. EPA has an ability to review those permits and
to make comments on them at the proposed permit stage, if there
is any----
Mrs. Capito. Once it has been finalized. Once the----
Ms. Keehner. Well, EPA has the ability under 404 to
potentially veto a permit. But that is very rarely used.
Mrs. Capito. Right. The other question--I mean we have had
just such difficulty. We have got people who are withdrawing a
lot of their applications, capital investments not going
forward in our coal mining region because of the difficulty
with the permitting issues. You are both well aware of this, I
am not telling you something you don't know.
But, you know, since the hearing here is about whether the
States would take over the 404 permitting, I noticed my State
was noticeably absent in the listing of the States. Would you
like to say why West--I don't know why West Virginia is not one
of those. I would have to say the complexities involved may be
why the State doesn't want to take this on. I don't know. Would
you----
Ms. Darcy. Well, I don't know either, Congresswoman. The
States who were represented here this morning did point out
some of the reasons why the State assumption is difficult. One
of them was funding, one of them was having to redo your own
regulations to be consistent. I mean they raised those
concerns.
Mrs. Capito. I would like to ask Ms. Keehner--did I say
that right?
Ms. Keehner. Yes, Keehner. Yes.
Mrs. Capito. Keehner. Yes, thank you. As you know, EPA's
objections have drastically impacted the ability of our State
to run our own NPDES permitting under Section 402. Is there any
hope that EPA would show greater deference to a prospective 404
permitting program if the State takes it over, than it has for
the NPDES State program?
Ms. Keehner. What I can comment on is that the relationship
we have with the State of Michigan and New Jersey, as they have
implemented the 404 program, has demonstrated that EPA reviews
and comments on less than 2 percent of the permits that those
States move forward under the 404 program. And over the history
of both of those programs, there have been only three cases
where objections, EPA objections, were maintained and those
permits moved over to the Corps of Engineers. So I think that
is a good indication of EPA's--how EPA, in practice, oversees
State programs that--under 404 that have been assumed.
Mrs. Capito. With the court striking down the enhanced
coordination procedures that were put into effect by the EPA,
has there been any activity in the EPA to reconstitute these
under a different form?
Ms. Keehner. No.
Mrs. Capito. Good answer.
Ms. Keehner. We respect the rule of law and the judge's
decisions.
Mrs. Capito. Good. And then for the Corps, on the back log,
I know staffing has been an issue sometimes at the Huntington
Corps, they are working like crazy. I realize that. There is a
lot of activity, and the colonels have done a great job. I
would concur with my colleagues who--you can't meet a finer
group of people, really, and I have great respect from them.
But what are you doing to address the backlog at the Corps
level in those particular districts that I am concerned about?
Ms. Darcy. We are trying to be more efficient within the
resources we have. We are also looking at ways that we can, as
we talked about, streamline the process, maybe be in touch with
those people with whom we need to coordinate earlier in the
process. And also, we have a dedicated group of folks in those
district offices trying to process those permits, and there are
a lot of permits.
Mrs. Capito. Thank you. Thank you, Mr. Chairman.
Mr. Gibbs. A couple more questions here. The Corps reissued
its nationwide permits under Section 404 of the Clean Water Act
in February of 2012. And shortly before the Corps reissuance,
the National Marine Fishery Service issued a jeopardy
biological opinion under the Endangered Species Act on the
Corps' nationwide permit program.
In August of 2012, the Center for Biological Diversity
notified the Corps of its intent to file a lawsuit in 60 days
to challenge the Corps' nationwide permit program, alleging
that the nationwide permits reissuance violated the Endangered
Species Act. How might this Endangered Species Act litigation
impact the nationwide permits and overall 404 program?
Ms. Darcy. Well, as you say, they have issued an intent to
sue.
Mr. Gibbs. Yes.
Ms. Darcy. I don't believe they have actually filed a
lawsuit yet. I would have to check. We will continue to operate
under our nationwide permits as they have been approved. In
light of the litigation stopping us from using them, we are
going to proceed under the nationwides as they have been
adopted.
Mr. Gibbs. OK. I think we are good. Just to follow up, I
know last year, before you came before this committee, we were
talking about the permits and the revocation of the one permit
in said State, and you said that the EPA said they had the
authority to do that. Apparently, the--at least in the first
round court decision, they didn't have the authority. I just
wanted to reinforce that. And I know the administration is
moving forward, which is unbelievable to me, but I just had to
get that in.
I want to thank you for coming today. Oh, OK. The--you
know, this hearing and our first panel, you know, we are really
trying to figure out how we can do things better and--because
when I am out in Ohio and elsewhere, one thing you hear from
businesses and, you know, our customers, that, you know, we
can't get our permits, permit delays, or--I think
Representative Herrera Beutler said it too, sometimes they
don't get back. Lots of times I hear instances where they say,
``Well, we haven't heard back. We inquire, it's been months,
and we can't get, you know, any feedback, we don't even know
what the status is.''
And, you know, they might need more information but, you
know, I think you really need to get filtered down through the
agency that there are customers and they are the ones that
create the jobs and grow the economy. And we certainly don't
want to be putting more barriers, making it more difficult, and
streamline the process when we can. So hopefully we can, you
know, out of this hearing today we can figure out how we can do
things better.
And I guess one quick question just comes to mind. If a
State wants to come in and do this, what is the position of the
Army Corps to--you know, don't have a position, or are you
just--are you going to facilitate the needs, what they want?
Ms. Darcy. If the State requires information for us to
review in order to submit the application to EPA, we would be
happy to--and we support that.
Mr. Gibbs. Yes, I figured you did, I just wanted to make
sure.
I guess just another quick thought. We have had hearings in
this committee on our entire maritime transportation system,
especially in the waterway and the ports, you know, it is
really critical, and we have had a lot of discussion about the
aging assets, you know, our locks, levies, and dams, and then,
of course, flood mitigation.
When we are looking at Corps personnel, can you kind of
break down, you know, where the emphasis is? I mean I will just
tell you. My strong belief is I think the Corps' top priorities
ought to be the maritime transportation system and flood
mitigation. And would it be better if the Corps was relieved of
this responsibility to do some of these 404 permits that really
don't pertain, as such, maybe to those--that--those two issues?
Ms. Darcy. As far as focusing our program on what those
priorities are that you mentioned, I think if you look at our
budget over the last several years, we are spending more on
operation and maintenance than we are on most other business
line functions, and that is because of the aging
infrastructure, and because of the importance of the maritime
system to this country.
You know, as far as the 404 program, our regulatory program
is about $185 million of our entire $4.7 billion budget. So it
is not a huge part, but it is a really important part. And I
think we have been doing it pretty well. I mean it was given to
us in 1972 by the----
Mr. Gibbs. When the Clean Water Act was----
Ms. Darcy. Passing the Clean Water Act for the dredge and
fill materials. So I think it is operating well, but you know,
with the increased needs of not only permits, but also the
increased needs of the navigation system, we need to weigh
where we are going to put our money.
Mr. Gibbs. Yes. No, I agree, and we got serious challenges,
because I have always made the argument if we don't have the
correct transportation system and maritime--essential cog of
that, our total transportation system, that, you know, our
economy will suffer and then we won't have the resources to do
some of these other things, you know, eco-restoration and all
the other programs you do.
So, anyway, thank you again for being here today, and we
look forward to seeing you in the future.
Ms. Darcy. Thank you.
Mr. Gibbs. This concludes this hearing.
[Whereupon, at 12:13 p.m., the subcommittee was adjourned.]