[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE ADMINISTRATION'S PRIORITIES AND POLICY INITIATIVES UNDER THE CLEAN
WATER ACT
=======================================================================
(116-31)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 18, 2019
__________
Printed for the use of the
Committee on Transportation and Infrastructure
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online at: https://www.govinfo.gov/committee/house-
transportation?path=/browsecommittee/chamber/house/committee/
transportation
__________
U.S. GOVERNMENT PUBLISHING OFFICE
40=826 PDF WASHINGTON : 2020
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
PETER A. DeFAZIO, Oregon, Chair
ELEANOR HOLMES NORTON, SAM GRAVES, Missouri
District of Columbia DON YOUNG, Alaska
EDDIE BERNICE JOHNSON, Texas ERIC A. ``RICK'' CRAWFORD,
ELIJAH E. CUMMINGS, Maryland Arkansas
RICK LARSEN, Washington BOB GIBBS, Ohio
GRACE F. NAPOLITANO, California DANIEL WEBSTER, Florida
DANIEL LIPINSKI, Illinois THOMAS MASSIE, Kentucky
STEVE COHEN, Tennessee MARK MEADOWS, North Carolina
ALBIO SIRES, New Jersey SCOTT PERRY, Pennsylvania
JOHN GARAMENDI, California RODNEY DAVIS, Illinois
HENRY C. ``HANK'' JOHNSON, Jr., ROB WOODALL, Georgia
Georgia JOHN KATKO, New York
ANDRE CARSON, Indiana BRIAN BABIN, Texas
DINA TITUS, Nevada GARRET GRAVES, Louisiana
SEAN PATRICK MALONEY, New York DAVID ROUZER, North Carolina
JARED HUFFMAN, California MIKE BOST, Illinois
JULIA BROWNLEY, California RANDY K. WEBER, Sr., Texas
FREDERICA S. WILSON, Florida DOUG LaMALFA, California
DONALD M. PAYNE, Jr., New Jersey BRUCE WESTERMAN, Arkansas
ALAN S. LOWENTHAL, California LLOYD SMUCKER, Pennsylvania
MARK DeSAULNIER, California PAUL MITCHELL, Michigan
STACEY E. PLASKETT, Virgin Islands BRIAN J. MAST, Florida
STEPHEN F. LYNCH, Massachusetts MIKE GALLAGHER, Wisconsin
SALUD O. CARBAJAL, California, Vice GARY J. PALMER, Alabama
Chair BRIAN K. FITZPATRICK, Pennsylvania
ANTHONY G. BROWN, Maryland JENNIFFER GONZALEZ-COLON,
ADRIANO ESPAILLAT, New York Puerto Rico
TOM MALINOWSKI, New Jersey TROY BALDERSON, Ohio
GREG STANTON, Arizona ROSS SPANO, Florida
DEBBIE MUCARSEL-POWELL, Florida PETE STAUBER, Minnesota
LIZZIE FLETCHER, Texas CAROL D. MILLER, West Virginia
COLIN Z. ALLRED, Texas GREG PENCE, Indiana
SHARICE DAVIDS, Kansas
ABBY FINKENAUER, Iowa
JESUS G. ``CHUY'' GARCIA, Illinois
ANTONIO DELGADO, New York
CHRIS PAPPAS, New Hampshire
ANGIE CRAIG, Minnesota
HARLEY ROUDA, California
(ii)
Subcommittee on Water Resources and Environment
GRACE F. NAPOLITANO, California, Chair
DEBBIE MUCARSEL-POWELL, Florida, BRUCE WESTERMAN, Arkansas
Vice Chair DANIEL WEBSTER, Florida
EDDIE BERNICE JOHNSON, Texas THOMAS MASSIE, Kentucky
JOHN GARAMENDI, California ROB WOODALL, Georgia
JARED HUFFMAN, California BRIAN BABIN, Texas
ALAN S. LOWENTHAL, California GARRET GRAVES, Louisiana
SALUD O. CARBAJAL, California DAVID ROUZER, North Carolina
ADRIANO ESPAILLAT, New York MIKE BOST, Illinois
LIZZIE FLETCHER, Texas RANDY K. WEBER, Sr., Texas
ABBY FINKENAUER, Iowa DOUG LaMALFA, California
ANTONIO DELGADO, New York BRIAN J. MAST, Florida
CHRIS PAPPAS, New Hampshire GARY J. PALMER, Alabama
ANGIE CRAIG, Minnesota JENNIFFER GONZALEZ-COLON,
HARLEY ROUDA, California Puerto Rico
FREDERICA S. WILSON, Florida SAM GRAVES, Missouri (Ex Officio)
STEPHEN F. LYNCH, Massachusetts
TOM MALINOWSKI, New Jersey
PETER A. DeFAZIO, Oregon (Ex
Officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vii
STATEMENTS OF MEMBERS OF THE COMMITTEE
Hon. Grace F. Napolitano, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on Water
Resources and Environment:
Opening statement............................................ 1
Prepared statement........................................... 2
Hon. Bruce Westerman, a Representative in Congress from the State
of Arkansas, and Ranking Member, Subcommittee on Water
Resources and Environment:
Opening statement............................................ 3
Prepared statement........................................... 4
Hon. Peter A. DeFazio, a Representative in Congress from the
State of Oregon, and Chairman, Committee on Transportation and
Infrastructure:
Opening statement............................................ 5
Prepared statement........................................... 8
Hon. Sam Graves, a Representative in Congress from the State of
Missouri, and Ranking Member, Committee on Transportation and
Infrastructure, prepared statement............................. 105
Hon. Eddie Bernice Johnson, a Representative in Congress from the
State of Texas, prepared statement............................. 105
WITNESSES
Panel 1
Hon. David Ross, Assistant Administrator, Office of Water, U.S.
Environmental Protection Agency:
Oral statement............................................... 10
Prepared statement........................................... 11
Panel 2
Maia Bellon, Director, Department of Ecology, State of
Washington:
Oral statement............................................... 63
Prepared statement........................................... 64
Becky W. Keogh, Secretary, Department of Energy and Environment,
State of Arkansas:
Oral statement............................................... 67
Prepared statement........................................... 69
Ken Kopocis, Associate Professor, Washington College of Law,
American University:
Oral statement............................................... 71
Prepared statement........................................... 73
Michael Hickey, Hoosick Falls, NY:
Oral statement............................................... 76
Prepared statement........................................... 78
Pamela Nixon, President, People Concerned About Chemical Safety:
Oral statement............................................... 82
Prepared statement........................................... 84
Geoffrey R. Gisler, Senior Attorney, Southern Environmental Law
Center:
Oral statement............................................... 86
Prepared statement........................................... 87
SUBMISSIONS FOR THE RECORD
Figure IV-9 from ``Economic Analysis for the Proposed Revised
Definition of `Waters of the United States' ,'' by the U.S.
Environmental Protection Agency and Department of the Army,
December 14, 2018, Submitted for the Record by Hon. Peter A.
DeFazio........................................................ 6
Images of Toxic Algal Blooms in Florida, Submitted for the Record
by Hon. Debbie Mucarsel-Powell................................. 25
State of Georgia, et al. v. Andrew R. Wheeler, et al., No. 2:15-
cv-00079 (S.D. Ga.), Submitted for the Record by Hon. Rob
Woodall........................................................ 34
Submitted for the Record by Hon. Bruce Westerman:
Letter of September 16, 2019, from Neil L. Bradley, Executive
Vice President and Chief Policy Officer, U.S. Chamber of
Commerce................................................... 106
``Policy Priorities and Proposals Summary,'' Business Task
Force on Water Policy, U.S. Chamber of Commerce............ 107
Letter of September 16, 2019, from James W. Tobin III,
Executive Vice President and Chief Lobbyist, Government
Affairs and Communications Group, National Association of
Home Builders.............................................. 109
Statement of the American Forest & Paper Association......... 110
Submitted for the Record by Hon. Grace F. Napolitano:
Letters from the U.S. Environmental Protection Agency in
Response to Letters from the Committee on Transportation
and Infrastructure......................................... 112
Statement of Robert Nasdor, Northeast Stewardship and Legal
Director, American Whitewater.............................. 121
Statement of the Environmental Working Group................. 126
APPENDIX
Questions from Hon. Peter A. DeFazio to Hon. David Ross,
Assistant Administrator, Office of Water, U.S. Environmental
Protection Agency.............................................. 129
Questions from Hon. Lizzie Fletcher to Hon. David Ross, Assistant
Administrator, Office of Water, U.S. Environmental Protection
Agency......................................................... 137
Questions from Hon. Eddie Bernice Johnson to Hon. David Ross,
Assistant Administrator, Office of Water, U.S. Environmental
Protection Agency.............................................. 140
Question from Hon. Sam Graves to Hon. David Ross, Assistant
Administrator, Office of Water, U.S. Environmental Protection
Agency......................................................... 141
Questions from Hon. Peter A. DeFazio to Maia Bellon, Director,
Department of Ecology, State of Washington..................... 142
Question from Hon. Sam Graves to Maia Bellon, Director,
Department of Ecology, State of Washington..................... 142
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
September 9, 2019
SUMMARY OF SUBJECT MATTER
TO: Members, Subcommittee on Water Resources and
Environment
FROM: Staff, Subcommittee on Water Resources and
Environment
RE: Subcommittee Hearing on ``The Administration's
Priorities and Policy Initiatives Under the Clean Water Act''
PURPOSE
The Subcommittee on Water Resources and Environment will
meet on Wednesday, September 18, 2019, at 10:00 a.m. in Room
2167, Rayburn House Office Building, to receive testimony from
the U.S. Environmental Protection Agency (EPA) and stakeholders
related to the Administration's priorities and policy
initiatives under the Clean Water Act.
BACKGROUND
The EPA has initiated several policy priorities over the
past two-and-a-half years under the Clean Water Act. Below are
a few of the issues that have been of interest to Members of
the Subcommittee on Water Resources and Environment.
UPDATE TO EPA'S NUTRIENT POLLUTION MANAGEMENT EFFORTS
The EPA has focused on promoting ``collaborative
approaches'' to address excess nutrient pollution.\1\ On
February 6, 2019, EPA announced a new policy memorandum aimed
at helping states, tribes, and stakeholders use market-,
incentive-, and community-based programs to address nutrient
pollution through water quality trading and other programs.
This new water quality trading memorandum reiterates the
Agency's support for water quality trading and is one piece of
a larger collaboration with stakeholders across the country,
aimed at coordinating federal resources towards addressing
nutrient pollution.\2\
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\1\ Nutrient pollution is the process where too many nutrients,
mainly nitrogen and phosphorus, are added to bodies of water and can
act like fertilizer, causing excessive growth of algae and impairment
of water quality. See https://oceanservice.noaa.gov/facts/
nutpollution.html.
\2\ See https://www.epa.gov/npdes/frequently-asked-questions-about-
water-quality-trading
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WATER REUSE ACTION PLAN
On February 27, 2019, the EPA announced its intent to
develop a Water Reuse Action Plan,\3\ with the stated goal of
leveraging the government's and industry's knowledge to ensure
the proper management of our Nation's water resources including
ensuring water availability and mitigating the risks posed by
droughts through water reuse and other means. On April 17,
2019, the EPA asked for public input on the Water Reuse Action
Plan, with the docket closing on July 1.\4\ A draft of the Plan
is expected to be released in September of this year.\5\
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\3\ See https://www.epa.gov/waterreuse/water-reuse-action-plan
\4\ See https://www.epa.gov/waterreuse/water-reuse-action-plan.
\5\ Lape, Jeffrey. U.S. Environmental Protection Agency, Office of
Science and Technology. April 17, 2019. Memorandum Posting EPA-HQ-OW-
2019-0174 to Regulations.gov for Public Access (Development of a Draft
Water Reuse Action Plan).
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STEAM ELECTRIC EFFLUENT LIMITATIONS GUIDELINES
Effluent Limitation Guidelines (ELGs) are national
wastewater discharge treatment standards developed by the EPA
on an industry-by-industry basis.\6\ These are technology-based
regulations intended to represent the greatest pollutant
reductions that are economically achievable for an industry.
The standards for direct dischargers are incorporated into
National Pollutant Discharge Elimination System (NPDES) permits
issued by States and EPA regional offices and permits or other
control mechanisms for indirect dischargers.
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\6\ See https://www.epa.gov/eg/learn-about-effluent-guidelines.
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In 2015, the EPA finalized a rulemaking for a new ELG for
steam electric power generating facilities; \7\ however, in
response to petitions from industry for reconsideration and an
administrative stay of provisions of EPA's 2015 final rule, the
EPA announced it would initiate a new rulemaking that may
result in revisions to the 2015 rule.\8\ Specifically, the EPA
may revise the best available technology economically
achievable effluent limitations and pretreatment standards for
bottom ash transport water and flue gas desulfurization
wastewater for existing sources. According to the regulatory
information website of the Office of Information and Regulatory
Affairs (OIRA), Office of Management and Budget, the EPA
planned to release a Notice of Proposed Rulemaking in June
2019,\9\ but still has not. The final rule is anticipated in
August 2020.\10\
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\7\ ``Effluent Limitations Guidelines and Standards for the Steam
Electric Power Generating Point Source Category,'' (80 FR 67838;
November 3, 2015).
\8\ See https://www.epa.gov/sites/production/files/2017-08/
documents/steam-electric-elg_epa-letter-to-petitioners_08-11-2017.pdf.
\9\ Executive Office of the President of the United States, Office
of Information and Regulatory Affairs, Office of Management and Budget
at https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=201904&RIN=2040-AF77. According to the OIRA
website, the unified agenda reports on the actions administrative
agencies plan to issue in the near and long term.
\10\ Id.
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CLEAN WATER ACT SEC. 401 CERTIFICATION
Under Section 401 of the Clean Water Act, a federal agency
may not issue a permit or license to conduct any activity that
may result in any discharge into navigable waters unless: (1) a
state or authorized tribe where the discharge originates (or
would originate) issues a Section 401 water quality
certification verifying compliance with applicable requirements
of the Act; or (2) the State or tribe waives this certification
requirement.
On April 10, 2019, President Trump issued Executive Order
13868,\11\ directing the EPA to review its section 401
guidance, including timing, scope, types of conditions to be
included, and how much information an applicant must provide to
States or tribes to make their decision. The Executive Order
also directed the EPA to issue new guidance and a new
regulation for implementing Section 401. On August 8, 2019, the
EPA signed a proposed rule to replace existing water quality
certification regulations pursuant to Section 401.\12\ This
proposal would establish a new process for establishing the
scope of issues that a State could review using its section 401
authority, the time under which the State could review the
activity, and what information related to the activity a State
could require to carry out its review.\13\ The 60-day public
comment period ends on October 21, 2019.\14\
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\11\ See https://www.federalregister.gov/documents/2019/04/15/2019-
07656/promoting-energy-infrastructure-and-economic-growth.
\12\ See https://www.regulations.gov/document?D=EPA-HQ-OW-2019-
0405-0025.
\13\ See https://www.epa.gov/cwa-401/guidance-section-401-
certification.
\14\ See https://www.epa.gov/cwa-401/updating-regulations-water-
quality-certification.
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WATERS OF THE UNITED STATES
The jurisdictional reach of the Clean Water Act is the
``navigable waters'', defined in the Act as the ``waters of the
United States, including the territorial seas'' \15\ The
definition of navigable waters/waters of the United States
governs the application of Clean Water Act programs--including
tribal and state water quality certification programs,
pollutant discharge permits, and oil spill prevention and
planning programs. States may also protect water quality and
regulate activities in their respective State waters; however,
according to a study of the Environmental Law Institute,
current state laws may also limit the ability of state agencies
to protect wetlands, streams, and other water resources more
broadly than federal law.\16\
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\15\ See 33 U.S.C. 1362.
\16\ See https://www.eli.org/research-report/state-constraints-
state-imposed-limitations-authority-agencies-regulate-waters.
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On February 28, 2017, the President signed the ``Executive
Order on Restoring the Rule of Law, Federalism, and Economic
Growth by Reviewing the `Waters of the United States' Rule.''
\17\ In it, the President directed the EPA and the U.S. Army
Corps of Engineers (Corps) to review the final rule issued by
the EPA and the Corps in 2015 aimed at addressing the
jurisdictional reach of the Clean Water Act,\18\ and consider
proposing a new rule to rescind or revise the 2015 Rule.
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\17\ Executive Order 13778. ``Presidential Executive Order on
Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing
the 'Waters of the United Stats' Rule'' at https://www.whitehouse.gov/
presidential-actions/presidential-executive-order-restoring-rule-law-
federalism-economic-growth-reviewing-waters-united-states-rule/.
\18\ 80 Fed. Reg. 37054 (June 29, 2015).
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On June 27, 2017, the EPA and Corps proposed a rule to
repeal the 2015 Rule and replace the 2015 Rule with the
regulatory text that existed prior to 2015 for the definition
of waters of the United States.\19\ On July 12, 2018, the
agencies published a Supplemental Notice of Proposed
Rulemaking, asking for additional comments on the agencies'
proposed repeal. According to OIRA \20\, the final rule was
anticipated in August 2019; however, as of the date of this
memo, no final action has yet been taken to repeal the 2015
Rule.
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\19\ Proposed Rule was published in the Federal Register on July
27, 2017, at 82 Fed. Reg. 34899.
\20\ See https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=201904&RIN=2040-AF74.
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The agencies are also pursuing the development of a new
rule to replace the regulations determining the scope of the
Clean Water Act. To that end, on December 11, 2018, the EPA and
Corps proposed a revised definition of waters of the United
States and the proposed rule was published in the Federal
Register on February 14, 2019.\21\ According to OIRA, the final
rule is anticipated December 2019.\22\
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\21\ See 84 Fed. Reg. 4154.
\22\ See https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=201904&RIN=2040-AF75.
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SECTION 404(C) REGULATORY REVISION
Under the Clean Water Act, the Corps and EPA have
complementary roles in implementing the Section 404 permit
program. Under Section 404, the Corps issues permits for the
discharge of dredged or fill material, using a set of
environmental guidelines promulgated by EPA in conjunction with
the Corps (pursuant to Section 401(b) of the Act) to evaluate
permit applications.\23\
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\23\ 33 CFR 320.4(a)(1).
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Section 404 also authorizes the EPA to restrict, prohibit,
deny, or withdraw the specification by the Corps of a site for
the discharge of dredged or fill material, if the agency
determines that the discharge will have an unacceptable adverse
effect on municipal water supplies, shellfish beds and fishery
areas (including spawning and breeding areas), wildlife, or
recreational areas. This authority, commonly called the
agency's 404(c) veto authority, authorizes the EPA to
``prohibit the specification (including the withdrawal of a
specification) of any defined area as a disposal site, and . .
. to deny or restrict the use of any defined area for
specification (including the withdrawal of specification) as a
disposal site, whenever he determines, after notice and
opportunity for public comment, that the discharge of such
materials into such area will have an unacceptable adverse
effect on municipal water supplies, shellfish beds and fishery
areas (including spawning and breeding areas), wildlife, or
recreation areas.'' Since enactment of the Clean Water Act in
1972, the EPA has exercised its 404(c) authority 13 times.\24\
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\24\ See https://www.epa.gov/cwa-404/chronology-cwa-section-404c-
actions.
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On June 26, 2018, the EPA signed a memorandum to the Office
of Water and Regional Administrators outlining changes that EPA
will propose to update the regulations governing EPA's role in
permitting discharges of dredged or fill materials under
Section 404 of the Clean Water Act (CWA). In addition,
according to OIRA, EPA is expected to issue a notice of
proposed rulemaking to consider changes to EPA 404(c) review
process that would govern its future use.\25\
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\25\ See https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=201904&RIN=2040-AF88
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WASHINGTON STATE WATER QUALITY CRITERIA
The Clean Water Act implementation regulations require that
the EPA formally approve state- and tribal-developed water
quality standards before they can go into effect for state
waters.\26\ In 2016, the State of Washington submitted 45 human
health criteria for toxic chemicals in state waters to the EPA,
which approved them on November 15, 2016, and issued a final
rule that revised 144 additional human health criteria for the
State of Washington's waters.\27\ On August 6, 2019, in
response to petitions from industry groups, the EPA issued a
proposed rule to consider withdrawing its previous approval of
State-developed human health criteria applicable to waters in
the State of Washington.\28\
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\26\ 40 CFR 131.
\27\ See 81 Fed. Reg. 85419 (November 28, 2016).
\28\ See 84 Fed. Reg. 38150 (August 6, 2019).
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GROUNDWATER
On April 15, 2019, the EPA issued an interpretive
statement, with the express goal of ``clarifying the
application of Clean Water Act permitting requirements to
groundwater.'' \29\ The 2019 interpretive guidance reverses
prior EPA interpretations that ``pollutants discharged from
point sources that reach jurisdictional surface waters via
groundwater or other subsurface flow that has a direct
hydrologic connection to the jurisdictional water may be
subject to Clean Water Act permitting requirements.'' \30\ EPA
recognizes that the U.S. Supreme Court was granted a petition
of writ of certiorari in Hawai'i Wildlife Fund v. County of
Maui, 886 F.3d. 737 (9th Cir. 2018), a Ninth Circuit case that
deals directly with the issue that is the subject of the
interpretive statement. EPA has stated that it may take further
action if necessary, after the U.S. Supreme Court has issued a
decision.
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\29\ See https://www.epa.gov/npdes/releases-point-source-
groundwater.
\30\ See 83 Fed. Reg. 7126, 7127 (February 20, 2019)
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SEWAGE BLENDING
The administration's Unified Agenda states that the EPA is
considering updating existing Clean Water Act regulations
regarding publicly owned treatment works (POTWs) operations
when wet weather events impact the ability of a POTW to treat
all incoming wastewater.\31\ According to OIRA, the goal of the
update is to clarify permitting procedures to provide POTWs
with flexibility in how they manage and treat peak flows under
wet weather events.\32\
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\31\ See https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=201904&RIN=2040-AF81.
\32\ See id.
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CLEAN WATER ACT HAZARDOUS SUBSTANCES SPILL PREVENTION
Section 311(j)(1)(C) directs the President to issue
regulations establishing procedures, methods, and equipment;
and other requirements for equipment to prevent discharges of
oil and hazardous substances from vessels and from onshore
facilities and offshore facilities, and to contain such
discharges. The President has delegated the authority to
regulate non-transportation-related onshore facilities and
offshore facilities landward of the coastline, under section
311(j)(1)(C) to EPA.
In February 2016, the EPA agreed, as part of a court-
ordered settlement, to propose hazardous substance spill-
prevention rules for industrial sites by June of 2018, and to
issue a final rule in 2019. After soliciting input about
hazardous substance spills across the country, the EPA issued a
proposed rule to establish no new requirements related to
spills of hazardous substances under the Clean Water Act.\33\
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\33\ See 83 Fed. Reg. 29499 (June 25, 2018).
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WITNESSES
PANEL 1
The Honorable Dave Ross, Assistant Administrator,
Office of Water, U.S. Environmental Protection Agency
PANEL 2
Ms. Maia Bellon, Director, Department of Ecology,
State of Washington
Ms. Becky Keogh, Secretary, Arkansas Energy and
Environment, State of Arkansas
Mr. Ken Kopocis, Associate Professor, American
University College of Law
Mr. Michael Hickey, Hoosick Falls, NY
Ms. Pam Nixon, President, People Concerned About
Chemical Safety
Mr. Geoffrey R. Gisler, Senior Attorney, Southern
Environmental Law Center
THE ADMINISTRATION'S PRIORITIES AND POLICY INITIATIVES UNDER THE CLEAN
WATER ACT
----------
WEDNESDAY, SEPTEMBER 18, 2019
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:01 a.m., in
room 2167, Rayburn House Office Building, Hon. Grace F.
Napolitano (Chairwoman of the subcommittee) presiding.
Mrs. Napolitano. Good morning, everybody.
I call this hearing to order, and we are going to get
started as soon as we have everybody set.
Today's hearing focuses on the Trump administration's
policies and priorities under the Clean Water Act and the
impacts on our communities.
Let me begin by asking unanimous consent that committee
members not on the subcommittee be permitted to sit with the
subcommittee at today's hearing and allowed to ask questions.
Without objection, so ordered.
I also ask unanimous consent the chair be authorized to
declare a recess during today's hearing.
Without objection, so ordered.
Today's hearing has been a long time in coming and is long
overdue. This is our first opportunity in 3 years to question
this administration on its vision of the Clean Water Act, and
whether their vision is consistent with the law and in line
with the wishes of the American people. We have much to
discuss.
In the past 3 years, this administration has taken
unprecedented steps to critically weaken our Clean Water Act,
one of our Nation's most important environmental laws for
protecting our health and the health of our environment.
In just 3 short years, EPA has repealed efforts to restore
longstanding protections for rivers, streams, and wetlands that
provide drinking water to over 117 million Americans. In just 3
years, EPA has proposed to eliminate Reagan-era protections on
an estimated 50 million acres of wetlands and over 2 million
miles of rivers and streams--more than half of the remaining
wetlands and stream miles in the entire country.
In just 3 years, the EPA has ground Clean Water Act
enforcement to a standstill, imposing political influences on
decisions when or if to enforce the law and relying on unproven
and unquantifiable so-called compliance initiatives to make it
sound like the Agency is doing something.
In just 3 years, the EPA has attacked the foundational
underpinnings of the 1972 Clean Water Act, including the
longstanding Federal-State partnership in co-administering the
law, the backstop EPA veto authority which ensures that
projects with unacceptable impacts to the environment cannot
move forward, and the authority to prevent pollution from
existing point sources.
Finally, in just 3 short years, this administration has
actively tried to eviscerate, undermine, and silence the
scientific and technical expertise and effectiveness of the
Agency, clearly demonstrating this administration's fear of
science, and its view that a weakened, underfunded,
understaffed agency is a compliant agency.
As noted in the recent testimony of former Republican EPA
Administrator Christine Todd Whitman, she stated: ``Today, as
never before, the mission of EPA is being seriously undermined
by the very people who have been entrusted with carrying that
mission out . . . The Trump administration has explicitly
sought to reorient the EPA toward industrial and industry-
friendly interests, often with little or no acknowledgment of
the Agency's health and environmental missions.''
Administrator Ross, I am glad you accepted our invitation
to testify this morning, and I appreciate your being here.
However, as you can surmise, Members on both sides of the aisle
are frustrated by the seeming disconnect between your actions
and the missions of the EPA. I can only imagine how much
polluters love what you are doing. However, when 63 percent of
Americans tell us that they are a great deal worried about
pollution and drinking water; when 57 percent of American
people worry a great deal about pollution in their rivers,
lakes, and reservoirs; and when hard-working Americans and
communities of color say that they are more concerned about
water pollution than any other time in recent history,
something is clearly wrong.
Today, your job is to answer to the subcommittee and the
American people why you think a weakened Clean Water Act is in
the best interest of hard-working American families.
Please don't fall back to the tired, false choice of
economy versus the environment. We can easily point you to both
the Clinton and Obama administrations where the economy was
strong, as was our Clean Water Act protections. We will
continue to protect EPA's stated mission.
[Mrs. Napolitano's prepared statement follows:]
Prepared Statement of Hon. Grace F. Napolitano, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Water Resources and Environment
Today's hearing has been a long time in coming.
This is our first opportunity in three years to question this
administration on its vision of the Clean Water Act--and whether this
vision is consistent with the law and in line with the wishes of the
American people.
We have a lot to discuss.
In the past three years, this administration has taken
unprecedented steps to critically weaken our Clean Water Act--one of
our nation's most important environmental laws for protecting our
health and the health of our environment.
In just three short years, this EPA has repealed efforts to restore
long-standing protections for the rivers, streams, and wetlands that
provide drinking water to over 117 million Americans.
In just three years, this EPA has proposed to eliminate Reagan-era
protections on an estimated 50 million acres of wetlands and over 2
million miles of rivers and streams--more than half of the remaining
wetlands and stream miles in this entire country.
In just three years, this EPA has ground Clean Water Act
enforcement to a standstill, imposing political influences on decisions
when (or if) to enforce the law and relying on unproven and
unquantifiable so-called ``compliance initiatives'' to make it sound
like the agency is doing something.
In just three years, this EPA has attached the foundational
underpinnings of the 1972 Clean Water Act, including the long-standing
Federal-State partnership in co-administering the law, the backstop EPA
veto authority which ensures that projects with ``unacceptable
impacts'' to the environment cannot move forward, and the authority to
prevent pollution from existing point sources.
Finally, in just three short years, this administration has
actively tried to eviscerate, undermine, and silence the scientific and
technical expertise and effectiveness of this agency--clearly
demonstrating this administration's fear of science, and its view that
a weakened, underfunded, and understaffed agency is a ``compliant''
agency.
As noted in recent testimony by the former Republican EPA
Administrator, Christie Todd Whitman:
``Today, as never before, the mission of EPA is being seriously
undermined by the very people who have been entrusted with
carrying that mission out . . . The Trump administration has
explicitly sought to reorient the EPA towards industrial and
industry-friendly interests, often with little or no
acknowledgement of the agency's health and environmental
missions.''
Administrator Ross, I am glad you accepted our invitation to
testify here this morning and appreciate your being here.
However, as you can surmise, Members on both sides of the aisle are
frustrated by the seeming disconnect between your actions and the
missions of EPA.
I can only imagine that polluters love what you are doing.
However, when 63 percent of the Americans tell us they are a great
deal worried about pollution in their drinking water, when 57 percent
of American worry a great deal about pollution in their rivers, lakes
and reservoirs, and when hard-working Americans and communities of
color say they are more concerned about water pollution than any time
in recent history--something is clearly wrong.
That is your job today--to answer to this Subcommittee and the
American people why you think a weakened Clean Water Act is in the best
interests of the hard-working American families.
And, please, don't fall back to the tired, false choice of economy
versus the environment. I can easily point you to both the Clinton and
Obama administrations where the economy was strong, as was our Clean
Water Act protections.
I wish you luck.
Mrs. Napolitano. At this time, I am pleased to yield to my
colleague, ranking member of our subcommittee, Mr. Westerman,
for any thoughts he may have.
Mr. Westerman. Thank you, Chairwoman Napolitano, for
holding this hearing, and thank you to our witnesses for being
here to discuss EPA's initiatives under the Clean Water Act.
In particular, I would like to acknowledge Assistant
Administrator Dave Ross from EPA's Office of Water for taking
the time to be here. And on the second panel, I am glad to be
able to welcome Becky Keogh, who is the secretary of energy and
environment from my home State of Arkansas.
Water is obviously critical for life. We can't live without
it, and I can't stress enough the importance of protecting our
Nation's water supply and quality and how water policy
shouldn't be about politics but about applying the best science
with the most commonsense approach.
Living in rural Arkansas or living anywhere in this
country, you know that we all rely on clean water for drinking,
for our homes, for our businesses and farms. And we also rely
on effective wastewater management and irrigation to preserve
the livelihoods of many people who produce the food that feeds
our country.
Protecting our waters is absolutely critical to communities
and ecosystems at home and all around the Nation. We have made
substantial progress over the past four and a half decades
improving water quality in our Nation. But I also understand
that some challenging issues still remain. The most effective
way to address these issues is through implementing effective
and pragmatic environmental policies under the Clean Water Act
that balance environmental, economic, and social outcomes.
States need to be empowered and engaged as equal partners
with the Federal Government in working to achieve these
objectives. Neither the Federal Government nor a State should
become overbearing and upset that balance. Maintaining the
balanced Federal-State partnership that Congress originally
intended under the Clean Water Act is fundamental to achieving
the objectives of the act. This is cooperative federalism.
It is critical that neither the Federal Government nor a
State takes too heavy-handed an approach. We can and must
protect and restore America's waters and wetlands with
effective and pragmatic policy and regulation that provides
regulatory certainty and is devoid of armies of consultants and
lawyers. Legal and policy decisions must be informed by good
science, be clear and concise, and preserve States' traditional
authorities.
I look forward to hearing testimony today from the EPA and
stakeholders on how we can strike a balance between regulatory
clarity and the need for robust environmental protection of
waters and wetlands, and also maintain the Federal-State
partnership that was envisioned under the Clean Water Act.
[Mr. Westerman's prepared statement follows:]
Prepared Statement of Hon. Bruce Westerman, a Representative in
Congress from the State of Arkansas, and Ranking Member, Subcommittee
on Water Resources and Environment
Thank you, Chairwoman Napolitano, for holding this hearing, and
thank you to our witnesses for being here to discuss EPA's initiatives
under the Clean Water Act. In particular, I'd like to acknowledge
Assistant Administrator Dave Ross from EPA's Office of Water for taking
the time to be here today, as well as Secretary of Energy and
Environment, Becky Keogh, from my home state of Arkansas.
Let me be clear, I am a staunch supporter of our environment and
cannot understate the importance of protecting our Nation's water
quality. Living in rural Arkansas, many of my friends and constituents
rely on clean water for their drinking water, and homes, businesses,
and farms rely on effective wastewater management and irrigation to
preserve their livelihoods. Protecting our waters is absolutely
critical to communities and ecosystems at home and all around the
Nation.
We have made substantial progress over the past four and a half
decades improving water quality in our Nation. But I also understand
that some challenging issues still remain.
The most effective way to address these issues is through
implementing effective and pragmatic environmental policies under the
Clean Water Act that balance environmental, economic, and social
outcomes. States need to be empowered and engaged as equal partners
with the federal government, in working to achieve these objectives.
Neither the federal government nor a state should become overbearing
and upset that balance.
Maintaining the balanced federal-state partnership that Congress
originally intended under the Clean Water Act is fundamental to
achieving the objectives of the Act. This is ``cooperative
federalism.''
It is critical that neither the federal government nor a state
takes too heavy-handed an approach. We can and must protect and restore
America's waters and wetlands with effective and pragmatic policy and
regulation that provides regulatory certainty and is devoid of armies
of consultants and lawyers. Legal and policy decisions must be informed
by good science, be clear and concise, and preserve states' traditional
authorities.
I look forward to hearing testimony today from the EPA and
stakeholders on how we can strike a balance between regulatory clarity
and the need for robust environmental protection of waters and
wetlands, and also maintain the federal-state partnership envisioned
under the Clean Water Act.
Mr. Westerman. And, Madam Chairwoman, I ask unanimous
consent that the written testimony be submitted for the record
on behalf of the following: The U.S. Chamber of Commerce and
the Chamber's Business Task Force on Water Policy, the National
Association of Home Builders, and the American Forest and Paper
Association.
Mrs. Napolitano. So ordered.
[The information is on pages 106-112.]
Mr. Westerman. And with that, I yield back.
Mrs. Napolitano. Thank you very much.
We now have the chair of the full committee, Mr. DeFazio.
Mr. DeFazio. Thanks, Madam Chair.
Long before I was in Congress, 1972, an overwhelming
bipartisan majority and President Nixon agreed that the fact
that Lake Erie was declared dead, the Cuyahoga River caught
fire, and in my State, the Willamette River was an open sewer,
that we needed to do something about it. So, hence, the Clean
Water Act.
We are now at a point where we are facing 21st-century
challenges to our clean water, and also new challenges in terms
of climate change and severe climate events.
So what was the reaction of this administration? Well, they
are leading a campaign to dismantle the Clean Water Act.
Historic, I guess, being pushed by the mining industry, oil and
gas, small and large industrial polluters. They want to go back
to pre-1986 Reagan-era rules. They want to roll back the scope
of the waters that are covered. That would strip clean water
protections for over 60 percent of stream miles and close to
half of remaining acres of wetlands.
In the West, it would remove all protections for
intermittent and ephemeral streams, they are already proposing
significant cutbacks, but let's get rid of all of those things.
Well, that would be 74 percent of the stream miles in my State
of Oregon that would be unprotected, 87 percent in the State of
California, 99 percent in the State of Arizona, 97 percent in
the State of New Mexico, and 96 percent in the State of Nevada,
and a nationwide impact elsewhere, but I don't have time to go
through every State and the impact. But every State, all
Americans, would be impacted by this proposal.
In fact, look at this handy chart provided by this
administration.
[Slide.]
Figure IV-9 from ``Economic Analysis for the Proposed Revised
Definition of `Waters of the United States' ,'' by the U.S.
Environmental Protection Agency and Department of the Army, December
14, 2018, Submitted for the Record by Hon. Peter A. DeFazio
Figure IV-9: Overview of potential environmental impacts to selected
CWA programs from proposed changes in CWA jurisdiction for
certain waters
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Note: This figure assumes no state responses to changes in CWA
jurisdiction. The analysis in Section II.A suggests that many states
will continue to regulate newly non-jurisdictional waters, thereby
reducing any potential impacts from the changes in CWA jurisdiction.
Mr. DeFazio. These are the predicted impacts of their rule.
Oh, minimal kind of stuff. Let's forget about the environment
section in the middle. Let's just go to economic impacts. Hmm.
Section 404 permits and mitigation. Ah, reduced ecosystem
values, i.e., recreation, hunting, fishing, would be severely
damaged.
Oh, how about this one? Downstream inundation damages.
Think of the broke Federal Flood Insurance Program already in
huge deficit and the challenges that FEMA has. But, hey, we are
going to make it worse. Don't worry about it.
And then, oh, we could just say look over here, under the
section 402 permits, greater drinking water treatment and
dredging costs. Well, the States will do it. The States will do
it. The States will clean up the water that came across the
border from another State that is doing nothing about the filth
going into it, and they will pay for it, not the Feds. And we
are not going to make that other State clean it up. No, no, no.
They can dump whatever they want in because it is an economic
value to them, and it just flows over the border to another
State. That State will just have to clean it up--if their
people want to drink it, that is their problem.
This is unbelievable. You know, I sat in this committee
back during the Gingrich era, and we had a markup that went on
for a week. It was embarrassing. And it was essentially what
you people are proposing. That was Bud Shuster's darkest
moment. And that bill was so embarrassing and so bad, that
dirty water bill, that Newt Gingrich wouldn't even bring it to
the floor.
But you people have the gall to try and do all this stuff
administratively, dismantle more than half a century of
progress. I mean, this is unbelievable. I mean, I can go on and
on about this. But rivers flow across borders, groundwater
migrates everywhere. And, oh, States will take care of it.
Well, the States are, you know, pretty pressed.
We used to help build wastewater systems. I was a county
commissioner. We got an 80-percent Federal match. You know what
the match is today? Zero. Zero. And, in fact, Trump has
proposed to cut the very minimal amount of money that we use to
assist the States with wastewater, and those systems are
wearing out.
The EPA itself says we need $270 billion in the next 20
years. And that doesn't even include new expenditures for
resilience and climate change. I have areas where these systems
go under water now regularly. We have to take care of those
things. But what is the Federal Government going to do? Well,
the Trump administration is going to cut Federal partnership
down to virtually nothing for everybody.
And then there has been this horrible tragedy that happened
in the Southeast. And the committee held hearings at the time,
then we lost the House and Congress didn't do anything about it
that was meaningful.
But, you know, exposure to toxic pollutants. The first
update, the powerplant regulation since 1982 came out of
President Obama. We held hearings on the TVA Kingston Fossil
Plant coal ash pond disaster in 2008. We couldn't get anything
out of a Republican Congress. The Obama administration took
action.
What is this administration going to do? They are going to
undo that. Don't worry, you will get your daily dose of, you
know, selenium, cadmium, arsenic, and all of those things,
under their proposed rule. We will do nothing about the coal
ash.
The Obama rule would reduce the amount by 1.4 billion
pounds, 90 percent. They are going to put that 1.4 billion
pounds or allow that to go back in. And your own--your own
analysis says that this Obama rule had minimal impacts on
electricity prices and the amount of electricity generating
capacity. But now we are going to do away with the rule because
somebody wanted it. Coal industry? I am not sure who.
Now, I don't know. Are we using new science? No, I don't
think so. This is all very political, and it is very
shortsighted.
We are no longer doing enforcement. We have a new rule. You
find someone violating the Clean Water Act, first off, not
really doing--not allowing the people to go out and do
inspections anymore. But you find someone in violation and you
recommend that there should be penalties; it has to be approved
by a political appointee. Not a scientist, not a career person.
A political appointee. Do you know what the answer is going to
be? Hell, no, we don't enforce that law. We are not going to
make those polluters pay a fine.
This is outrageous. And, Madam Chair, I regret that I won't
be able to stay for the entire hearing, because I have two
other major things this morning. But I will be around long
enough to at least engage in one round of questions. And I may
use an extended period of time, and I will grant the same
amount to the minority for them if they want to apologize for
his actions.
Thank you.
[Mr. DeFazio's prepared statement follows:]
Prepared Statement of Hon. Peter A. DeFazio, a Representative in
Congress from the State of Oregon, and Chairman, Committee on
Transportation and Infrastructure
We are here today to talk about actions taken by the Trump EPA and
the impacts they will have for years to come on our public health and
environment.
Clean water is a basic human need and human right. Our families
rely on rivers and streams to supply clean drinking water to our homes
and businesses. Our farmers and brewers rely on clean water to produce
good food and drink. Hunters, anglers, and birders need water and
wetlands to sustain wildlife and the $887 billion outdoor recreation
industry.
The Clean Water Act was enacted in 1972 on an overwhelming and
bipartisan basis. Before the Act, rivers served as little more than
open sewers, Lake Erie was pronounced ``dead,'' and Ohio's Cuyahoga
River literally caught on fire. Thanks to bipartisan efforts over
decades to implement the Clean Water Act, our rivers and lakes are
cleaner and safer.
Yet, the Trump administration has taken and is taking several
misguided, misinformed, and fundamentally flawed actions that will undo
the progress we have made.
First, the Trump administration is leading a campaign to dismantle
our nation's Clean Water Act--all at the behest of the mining industry,
oil and gas sectors, and small and large industrial polluters. Trump's
EPA recently finalized a roll back of CWA protections--all the way back
to what they were in 1986.
The administration's next step is to roll back the scope of waters
covered by the Act--protecting far fewer rivers, lakes, and streams
than even President Reagan thought appropriate. Preliminary estimates
suggest that the Trump proposal would strip Clean Water Act protections
for over 60 percent of stream miles and close to half of our remaining
acres of wetlands.
If the Trump administration takes the most radical approach and
removes protections for both intermittent and ephemeral streams, as
many as 74 percent of stream miles mapped in my State of Oregon could
be left without protections; 87 percent of stream miles in the State of
California; 99 percent in the State of Arizona; 97 percent in the State
of New Mexico; and 96 percent in the State of Nevada. That is a lot of
stream miles that could become more polluted in the future.
In the Trump administration's own economic analysis of their flawed
proposal, they include a chart that shows the potential environmental
and economic impacts of the Dirty Water Rule. Even though EPA chose to
look at the impacts to just three Clean Water Act programs, the
potential impacts are great.
The environmental impacts include: reduced wetland habitat;
increased flood risk; more pollution into waterbodies; degraded aquatic
habitats; increased oil spill risk; and affected drinking water
intakes. The economic impacts include greater costs related to
downstream flooding; greater drinking water treatment costs; greater
spill response costs; and greater damage from oil spills.
This administration will tell you states will fill in the gaps in
federal law and take up the role of protecting these waters. Don't be
fooled. States and localities have shown no interest in backstopping
the protections stripped by the Trump EPA--states and localities have
less incentive and fewer resources to ensure that waters that flow out
of their boundaries are clean. We tried that approach before enactment
of the Clean Water Act, when there was a patchwork of state laws, and
saw what an epic failure that was.
Second, we are in an infrastructure crisis. The EPA estimates that
some $270 billion in infrastructure investment is needed over the next
20 years--and that is just to get our country's current wastewater
infrastructure into good shape. That doesn't include what we need to
invest to ensure that our infrastructure is resilient and ready to deal
with the impacts of climate change and stronger and more persistent
storms.
Despite these demonstrated needs, the Trump administration proposed
massive cuts to the primary water infrastructure investment program--
the Clean Water State Revolving Fund program--asking for barely $1
billion for Fiscal Year 2020. That is a ridiculously low amount given
the need.
The President claims to be the best at building things, but to date
he has not put together a comprehensive plan for successfully upgrading
and maintaining our infrastructure--wastewater or otherwise.
Third, the Trump EPA is undoing the previous administration's
efforts to limit communities' exposure to toxic pollutants from power
plants. In 2013, the Obama administration proposed the first update to
power plant regulations since 1982 by proposing limits on the toxic
metals power plants can discharge.
This Committee held oversight hearings when the Tennessee Valley
Authority Kingston Fossil Plant coal ash pond disaster occurred back in
2008. While there have been various efforts in Congress to address coal
ash pollution, the first effort from EPA was when the Obama
administration attempted to protect communities from toxic pollution in
coal ash from power plants across the country.
The Obama administration determined there would be significant
benefits related to their proposal. The monetary benefits were
projected to be $451-$566 million each year and was expected to reduce
heavy metals entering waterways by 1.4 billion pounds, or 90 percent.
At the same time, the analysis showed the new discharge limits would
have ``minimal impacts on electricity prices and the amount of
electricity generating capacity.''
Now, the Trump administration is blocking the implementation of
these important safeguards.
Is it because EPA is looking at new science or other data that
indicates we don't need to limit exposure to things like arsenic,
selenium, lead, mercury, boron, and cadmium? Or is it because industry
groups persuaded the Trump EPA to delay implementation of these
important protections? Spoiler alert: it is the latter.
Unfortunately, the Trump administration is up to more than just
that. The Trump EPA is dropping the ball on enforcing the law,
finalizing fewer civil enforcement actions in its first year than the
previous three administrations during similar time periods. In
addition, the political head of EPA's enforcement office issued new
procedures requiring political appointee sign off before enforcement
actions move forward.
The Trump administration is also restarting projects already found
to be bad for the environment, such as Pebble Mine in Alaska and the
Yazoo Pumps in Mississippi; stripping EPA of an important ``veto'' tool
to intervene when a project threatens water quality; shrugging off
setting standards after a chemical storage facility in West Virginia
released 10,000 gallons of waste, affecting 300,000 residents; and the
list goes on and on.
President Trump often says he wants ``clean water,'' but, time-
after-time, his actions undermine or eliminate existing protections of
our waters and put the health of our families and our local economies
at risk. This administration has made it a priority to dismantle the
Clean Water Act, regardless of the science or the law.
Clearly, the winners of this administration's roll backs are the
developers, manufacturers, and corporate farmers that don't want to be
responsible for the pollutants they dump into our rivers and streams.
The losers are our families, our local communities and businesses,
and our environment that will have to live with the long-term
consequences of dirty water.
Mrs. Napolitano. Thank you, Mr. DeFazio. Now tell us how
you really feel.
I love it.
Without objection, I ask unanimous consent to insert the
following letters and documents into the record, along with the
ones that are given by the minority: A series of oversight
letters from this committee to EPA, some of the responses we
have received thus far; other correspondence the committee has
received relative to the issue to be discussed today; map of
the PFAS pollution, and a letter from the attorneys general
requesting congressional action on PFAS.
Without objection, so ordered.
[The information is on pages 112-128.]
Mrs. Napolitano. Now we will proceed to hear from our
witness who will testify.
And I thank you for being here. You are in the hot seat,
Mr. Ross, but I thank you anyway.
You are welcome to the hearing, and your prepared statement
will be entered into the record. And all witnesses are asked to
limit their remarks to 5 minutes.
The Honorable David Ross, Assistant Administrator, Office
of Water, U.S. EPA. You are on.
TESTIMONY OF HON. DAVID ROSS, ASSISTANT ADMINISTRATOR, OFFICE
OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Ross. Well, good morning, Chairwoman Napolitano,
Ranking Member Westerman, Chairman DeFazio, and members of the
subcommittee. I am Dave Ross, EPA's Assistant Administrator for
the Office of Water. It is a pleasure to be here today.
I want to begin by thanking the dedicated professionals
working within the Office of Water for their service to this
country and for their passion in delivering on the Agency's
core mission of protecting public health and the environment.
The Office of Water has an extensive portfolio of
responsibility. But I would like to begin today by highlighting
a few priority areas for the subcommittee, including
modernizing and rebuilding America's water infrastructure,
encouraging the adoption of water reuse, and ensuring a
sustainable workforce in the water sector.
My written testimony provides a more indepth discussion of
some other additional topics.
One of the highest priorities for the Office of Water is to
ensure that the Agency implements our appropriated grant and
loan programs as expeditiously and transparently as possible.
It is our job to put our hard-earned taxpayer resources to work
as quickly as possible.
One program that I would like to highlight in particular is
the Water Infrastructure Finance and Innovation Act program, or
WIFIA for short.
The WIFIA program is complex, and it took some time to set
up, but it is now operating at full capacity and is producing
tremendous results. In the past year, the EPA has announced 11
WIFIA loans, leveraging approximately $3 billion in taxpayer
resources to help finance over $6.5 billion in water
infrastructure projects, and we anticipate announcing several
more loans in the very near future. In fact, with existing
appropriations, the WIFIA program is slated to leverage
approximately $10 billion in credit assistance, to finance over
$20 billion in water infrastructure investments, while creating
thousands of jobs in communities throughout the country.
Another priority for the Office of Water is promoting the
reuse of water for beneficial purposes instead of treating it
as waste. Forty of our State partners anticipate some
freshwater shortages in the next decade, and all levels of
Government have a responsibility to ensure that Americans have
access to reliable sources of clean and safe water.
That is why last week, at the WateReuse Symposium in San
Diego, EPA and our Federal partners released a draft National
Water Reuse Action Plan for public review and comment. There is
innovative work happening throughout the water sector to
advance water reuse, and the action plan is intended to help
facilitate adoption of water reuse to support improved water
resiliency, sustainability, and security.
To protect our Nation's investments in aging infrastructure
and capacity development, we must not forget about our human
capital needs. Without a capable, knowledgeable, and diverse
workforce of water professionals, our financial investments
will be put at risk.
The water sector workforce is underappreciated. I began my
career working alongside wastewater treatment operators in
southern California, and looking back now, I realize how
valuable they were to my education and professional
development. They are the true environmental heroes, protecting
public health and the environment every day, and they deserve
the same recognition in society as our emergency responders,
teachers, and public health professionals.
We know that more than one-third of our water and
wastewater operators will be eligible to retire in the next 10
years, and technology is outpacing training. While this is
primarily a State and local issue, I see an important role for
Federal leadership. That is why EPA is working with our Federal
partners to support water workforce training and development.
For example, we are working with the Department of Veterans
Affairs to provide information on water careers to disabled
veterans and are exploring other collaborative opportunities
with our military services. The country relies on this
workforce every day, and it is imperative that we focus
resources on supporting this critical sector.
Finally, I want to conclude by describing my touchstone for
addressing many of the complex regulatory questions facing the
Office of Water, determining first what the law is, not what we
want it to be. Under our system of laws, an executive branch
agency can only exercise the power that Congress delegates to
it.
The Federal Government has a poor track record in Supreme
Court cases involving the Clean Water Act in which it was a
party. For example, in the last three major cases, Sackett,
Hawkes, and NAM, Federal positions failed to secure a single
vote from any Supreme Court Justice. That is almost impossible
to do. That is why under this administration, the Office of
Water is focused on restoring the rule of law and providing
regulatory certainty by starting with a robust analysis of our
base legal authorities before deciding our policy positions.
Members of the subcommittee, thank you for the opportunity
to testify today. I look forward to answering any questions you
may have.
[Mr. Ross' prepared statement follows:]
Prepared Statement of Hon. David Ross, Assistant Administrator, Office
of Water, U.S. Environmental Protection Agency
Good morning Chairman DeFazio, Chairwoman Napolitano, Ranking
Member Graves, Ranking Member Westerman, and members of the Committee.
I am David Ross, Assistant Administrator of the U.S. Environmental
Protection Agency's Office of Water. Thank you for the opportunity to
speak about the Administration's priorities and policy initiatives
under the Clean Water Act. Given the frequent convergence of surface
and drinking water quality issues, I am also happy to address questions
related to our drinking water and other national water program areas.
I want to begin by thanking the dedicated professionals working
within the EPA Office of Water for their service to this country and
for their passion in delivering on the Agency's core mission of
protecting public health and the environment every single day.
America's drinking and surface water quality is much better today than
at any point during the history of our Agency. The laws of Congress, as
carried out by the Executive Branch, are working, and today the United
States is a global leader in drinking water quality and draws millions
of visitors from around the world each year to enjoy and play on our
inland and coastal waters.
That said, historical issues remain and new challenges have
emerged, from aging infrastructure to managing excess nutrients in
surface water to addressing emerging contaminants in drinking water.
The EPA Office of Water has an extensive portfolio of responsibility,
and I would like to highlight a few priority action areas for the
Subcommittee. These include: modernizing and rebuilding America's water
infrastructure; reusing water for beneficial purposes instead of
treating it as waste; ensuring a sustainable workforce in the water
sector; using innovative approaches to reduce excess nutrients in
waterbodies; and addressing priority and emerging contaminants in
drinking water. I also want to highlight two priority regulatory
actions under the Clean Water Act which may be of interest to the
Subcommittee.
Modernizing and Rebuilding America's Water Infrastructure
One of the highest priorities of the EPA Office of Water and a
personal priority of mine is to ensure the Agency implements our
appropriated grant and loan programs as expeditiously and transparently
as possible. The Water Infrastructure Finance and Innovation Act
(WIFIA) program and the Clean Water and Drinking Water State Revolving
Funds (SRFs), for example, are vital for supporting communities in
meeting their clean water and drinking water goals.
The WIFIA program is complex and took some time to set up, but it
is now operating at full capacity and is producing tremendous results.
To date, the EPA has announced 11 WIFIA loans, totaling nearly $3
billion in credit assistance to help finance over $6.5 billion in water
infrastructure projects and create more than 10,000 jobs. Additionally,
three more projects are currently under review and likely to be
announced soon, totaling approximately $725 million in credit
assistance. This past November, the EPA invited another 39 projects in
16 states and the District of Columbia to apply for WIFIA loans--
projects that, when approved, could help finance more than $10 billion
in total water infrastructure investments and create up to 155,000 more
jobs. In response to the EPA's third WIFIA Notice of Funding
Availability, the Agency received 51 letters of interest, collectively
requesting $6.6 billion. This exceeds the $6 billion that the EPA is
offering, demonstrating the critical need for investment in our
nation's water infrastructure and strong interest in the WIFIA program.
The EPA's Clean Water and Drinking Water SRFs continue to provide
critical funding to states to improve wastewater and drinking water
infrastructure and reduce water pollution and public health threats.
Combined, the SRFs have provided more than $170 billion in financial
assistance to more than 39,900 water quality infrastructure projects
and 14,500 drinking water projects across the country. The SRFs
continue to be one of the most impactful EPA programs in protecting
public health and the environment, and the Agency is working with our
state partners to ensure their SRFs are operating as efficiently and
effectively as possible.
Reusing Water for Beneficial Purposes
Another priority for the EPA Office of Water is reusing water for
beneficial purposes instead of treating it as waste. Forty of our state
partners anticipate fresh water shortages in the next decade, at least
in portions of their states. Although states, tribes, local governments
and the water sector are actively working to diversify their water
portfolios to meet anticipated demand, water reuse is an underutilized
tool for meeting the needs of the Nation. The federal government is
committed to working with our state and local communities to ensure
that all Americans have access to reliable sources of clean and safe
water. That is why last week at the WateReuse Symposium in San Diego,
California, the EPA and our federal partners released a Draft National
Water Reuse Action Plan for public review and comment. There is
innovative work happening throughout the water sector to advance water
reuse, and the draft Action Plan is intended to help accelerate
adoption of water reuse as a critical component of an integrated water
resources management approach that can support improved water
resiliency, sustainability, and security.
Ensuring a Sustainable Workforce in the Water Sector
The EPA also recognizes the need to ensure a capable,
knowledgeable, and diverse workforce of water professionals. The great
work of these environmental heroes protects public health and the
environment every single day. In addition to their critical role in
providing clean and safe water to our communities, water utility
workers are key in protecting the Nation's investments in water
infrastructure. We know that roughly one third of water and wastewater
operators will be eligible to retire in the next 10 years, and
technology is outpacing training. While this is primarily a state and
local community issue, I see an important role for federal leadership.
That's why the EPA is working with our federal partners to support
water workforce training and development. For example, we are working
with the U.S. Department of Veterans Affairs to provide information on
water careers to disabled veterans and with the U.S. Department of
Labor to promote tools like their Water Workforce Competency Model,
which can help utilities and others set up apprentice programs. The
country relies on this workforce every day and the EPA can play a
unique role in helping to support this sector.
Using Innovative Approaches to Reduce Excess Nutrients in Waterbodies
The EPA is also prioritizing using innovative approaches to reduce
excess nutrients in surface waters. Excess nutrients in our waterways
is a significant and ongoing water quality challenge that can trigger
harmful algal blooms, a growing drinking water concern for many
communities. Excess nutrients come from a variety of sources, including
urbanization, growing populations, wastewater discharges, septic
systems, stormwater runoff, and agriculture. States, tribes, local
governments, communities, the federal government, and a diverse network
of engaged stakeholders have worked hard to reduce excess nutrients.
While much progress has been made, there is more work to do. At the
federal level, the EPA will continue to use traditional regulatory and
financial tools that are available to us. But to truly make a lasting
difference, we need to think more holistically. That is why the EPA
Office of Water has been so focused over the past year on thinking more
creatively about the use of market-based mechanisms and how the power
of innovative financing tools can help us create lasting and beneficial
change in this area. For example, we believe water quality trading is
an untapped opportunity to make significant gains in water quality
improvement, particularly as applied to excess nutrients in surface
waters. That is why we published a new water quality trading policy in
February and currently have additional recommended policy enhancements
out for public comment.
The Agency is also strengthening our partnership with the U.S.
Department of Agriculture (USDA) and is working more closely with the
utility and agricultural sectors. We are thankful for their engagement
and collaboration, and we are grateful for farmers' expertise as long-
standing conservation stewards of the land.
Addressing Priority and Emerging Contaminants in Drinking Water
I would also like to highlight some important efforts the EPA
Office of Water is undertaking to support safe drinking water. The EPA
has established protective drinking water standards for more than 90
contaminants, including drinking water regulations issued since the
1996 amendments to the Safe Drinking Water Act that strengthen public
health protection. Today, more than 92 percent of our population served
by public drinking water systems is delivered water in full compliance
with federal standards, and EPA is working aggressively with our state
partners to push that number higher.
While these actions have improved drinking water across the
country, we continue to look forward. For example, we are working on
comprehensive revisions to update the Lead and Copper Rule (LCR) for
the first time in nearly three decades, and we look forward to
releasing the proposed rule for public comment. We are also continuing
to work with primacy agencies to ensure that the current LCR is being
properly implemented. We continue to coordinate with and provide
support to the City of Flint and the State of Michigan in their efforts
to ensure that all LCR requirements are being met, and the EPA has been
and will continue to help the City of Newark and the State of New
Jersey evaluate potential solutions to establish long term stability in
controlling Newark's lead issues. Our goal in each of these cities is
to protect public health, ensure public confidence in the public water
system, and work collaboratively with the local and state experts to
ensure federal requirements are met now and in the future.
The EPA is also focused on emerging contaminants such as per- and
polyfluoroalkyl substances (PFAS) and continues to make progress
outlined in our PFAS Action Plan. The Agency will propose a regulatory
determination for perfluorooctanoic acid (PFOA) and perfluorooctane
sulfonate (PFOS) under the Safe Drinking Water Act by the end of this
year and will propose nationwide drinking water monitoring for a suite
of PFAS under the next Unregulated Contaminant Monitoring Rule cycle.
The EPA recently concluded public comment on the draft Interim
Recommendations for Addressing Groundwater Contaminated with PFOA and
PFOS, another key commitment under the Action Plan, and is reviewing
public comments. The regulatory development process to propose
designating PFOA and PFOS as Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) hazardous substances is also
well underway.
Priority Rulemakings
The federal government has a poor track record in Supreme Court
cases involving the Clean Water Act in which it was a party, including
losing the last two cases (SWANCC and Rapanos) in which the scope of
Clean Water Act jurisdiction was at issue. In fact, in the last three
cases (Sackett, Hawkes, and NAM), federal positions failed to secure a
single vote from any Supreme Court Justice. That is why under this
Administration, the EPA Office of Water is focused on restoring the
rule of law and providing regulatory certainty. Two priority regulatory
actions to help accomplish these goals are the revision to the
definition of ``Waters of the United States'' and revisions to
regulations related to section 401 of the Clean Water Act.
Revising the Definition of ``Waters of the United States''
Under the President's Executive Order 13778, the EPA and the
Department of the Army are engaged in a two-step rulemaking to: (1)
repeal the 2015 rule defining ``Waters of the United States'' (WOTUS);
and (2) draft a new regulation to revise the definition of WOTUS.
On September 12, 2019, EPA Administrator Wheeler and Assistant
Secretary of the Army for Civil Works James announced our final rule
repealing the prior Administration's 2015 Rule and reinstating the pre-
existing regulations (referred to as Step 1). Step 1 provides
regulatory certainty as to the definition of ``Waters of the United
States'' following years of litigation surrounding the 2015 Rule. The
two federal district courts that have reviewed the merits of the 2015
Rule found the rule legally deficient and issued orders remanding the
rule back to the agencies. These and other courts have also enjoined
the 2015 Rule from taking effect in a majority of the country, with a
shifting patchwork of decisions adding to the regulatory uncertainty
associated with the prior Administration's WOTUS definition.
After an extensive rulemaking effort, the EPA and the Army have
jointly concluded that multiple substantive and procedural errors
warrant a repeal of the 2015 Rule. For example, the 2015 Rule:
Did not implement the legal limits on the scope of the
agencies' authority under the Clean Water Act as intended by Congress
and reflected in Supreme Court cases;
Failed to adequately recognize, preserve, and protect the
primary responsibilities and rights of states to manage their own land
and water resources;
Approached the limits of the agencies' constitutional and
statutory authority absent a clear statement from Congress; and
Suffered from certain procedural errors and a lack of
adequate record support as it relates to the 2015 rule's distance-based
limitations.
With this final repeal, the agencies will implement the pre-2015
regulations that are currently in place in more than half of the
states, informed by applicable agency guidance documents and consistent
with Supreme Court decisions and longstanding agency practice.
In December 2018, the agencies signed a proposed rule that would
revise the definition of WOTUS informed by the guidance of that
Executive Order. The agencies are in the process or reviewing more than
600,000 comments received on the proposed rule and plan to take final
action by this winter.
Revising the Regulations Related to Section 401 of the Clean Water Act
In April 2019, President Trump issued Executive Order 13868 on
Promoting Energy Infrastructure and Economic Growth, and directed the
Administration to take appropriate action to accelerate and promote the
construction of pipelines and other important energy infrastructure.
The President's Executive Order directs the EPA to consult with states
and tribes on reviewing and updating guidance and regulations related
to section 401 of the Clean Water Act.
Section 401 gives states and authorized tribes the authority to
assess potential water quality impacts of discharges from federally
permitted or licensed infrastructure projects that may affect navigable
waters within their borders. The EPA's existing certification rules
have not been updated in nearly 50 years and are inconsistent with the
text of Clean Water Act section 401, leading to confusion and
unnecessary delays for infrastructure projects.
On August 8, 2019, Administrator Wheeler signed a proposed rule to
modernize implementation of Clean Water Act section 401. Through this
rulemaking, the EPA is seeking to increase the transparency and
efficiency of the section 401 certification process and to promote the
timely review of infrastructure projects while continuing to ensure
that Americans have clean water for drinking and recreation.
Additionally, by modernizing the regulations from 1971, we are aiming
to provide greater clarity and regulatory certainty for the water
quality certification process. The public comment period is currently
open, and we will take final action after carefully reviewing the
comments we receive.
In conclusion, the EPA Office of Water is busy administering our
grant and loan programs, updating our drinking water regulations,
modernizing our surface water programs, and conducting priority
rulemakings to provide greater clarity and certainty for the regulated
community. Chairman DeFazio, Chairwoman Napolitano, Ranking Member
Graves, Ranking Member Westerman, and members of the Committee, thank
you for the opportunity to discuss the Administration's priorities and
policy initiatives for the National Water Program. I look forward to
answering any questions you may have.
Mrs. Napolitano. Thank you for your testimony.
And we will start with the questions with the panel.
Chairman DeFazio, you are up first.
Mr. DeFazio. Thank you, Madam Chair, for letting me go out
of order because of my schedule constraints.
Administrator Ross, in your testimony, you say that we are
going to go back to those regulations that existed immediately
prior to the 2015 rule. So I assume that means the regulatory
definitions from 1986?
Mr. Ross. Yes, that is correct.
Mr. DeFazio. OK. Are you familiar with all the criticism of
a number of the groups that are supporting some of what you are
doing of the rules in 1986, the arbitrary and inexact nature of
those rules which subsequent administrations, Bush
administration, Obama administration, tried to fix? So we are
just going to go back to this very confusing time with that as
a directive?
Mr. Ross. Well, right now, our direction is to restore the
rule of law, and the Obama 2015 rule, one, never went into
effect in significant portions of this country. Several courts
shut it down because the merits arguments that----
Mr. DeFazio. OK. But are you going to try and write an
interpretation? Because back at that time, 1986, the U.S.
Chamber of Commerce, the farmers, everybody was saying, hey,
this is horrible, this is unenforceable, it is arbitrary, it is
capricious, it is different everywhere.
So the Bush administration tried. OK. Then the Obama
administration tried. And now you are going to say, no, we are
not going to do what the Obama administration did. We are just
going to go back to 1986. Is that it? Or are you writing a new
rule?
Mr. Ross. Well, we are doing both. One, we are responding
to two courts that have remanded the 2015 rule back to the
Agency as unlawful.
Mr. DeFazio. Uh-huh.
Mr. Ross. At the same time, we are restoring the existing--
and one court said the imperfect but familiar 1986 regime--and
we are redrafting and proposing a new definition.
Mr. DeFazio. I mean, you are out asking for comment. Now,
your initial proposal says that ephemeral streams are out. So
what percent is that of what is covered today? Do you know?
Mr. Ross. Actually, we don't. We do not have maps that
actually----
Mr. DeFazio. Well, actually, I think those maps do exist.
The previous administration substantiated them. Scientists
substantiated them. That is 18 percent. Let's try another one.
Clean Water Act protections for intermittent streams, which
are 52 percent of the Nation's streams. How many miles of
intermittent streams would lose Federal protection? And are you
asking the opinion that we should take all intermittent streams
out? And I already told you the impact in a number of Western
States.
Mr. Ross. Two things. The last administration actually had
the Administrator or the Deputy Administrator and the Assistant
Administrator of Water testify and send letters to Congress
saying that we do not have maps that show the Clean Water Act
jurisdiction. I agree with them.
As far as what our proposal is, right now we have drawn the
line at ephemerals. Intermittents are categorically in, as
opposed to the 1986 and the 1988 regime where they are in if
they satisfy the significant nexus.
Mr. DeFazio. Well, actually they did. The Obama
administration did do an analysis. There were metrics. We have
a document from 2015. But either you can't access the data or
maybe that is part of what got wiped out by this administration
in trying to undo science. I don't know.
All right. Let's try one more. So let's go to wetlands. A
lot of people care about wetlands, including hunters, fishers,
recreationists, everybody. So what percent of our wetlands
would be eliminated from Clean Water Act protections under your
proposal?
Mr. Ross. Actually, we also do not know that as well
because----
Mr. DeFazio. So--OK. Wait a minute, wait a minute, wait a
minute. So you are proposing to undo protections on
intermittent streams, ephemeral streams, and wetlands, and you
don't know what the impact of what you are proposing would be.
That is great. So is it 50 percent? That is the estimates we
see. But you are saying you don't know. So OK. All right. Let's
move on.
So how about the economic impacts? If I could have the
chart back up. That is your own chart there.
[Slide.]
We talk about--oh, downstream inundation damages, flood
risk. What about that? Greater drinking water treatment and
dredging costs. These are desirable outcomes? This is like--
seriously? Who is going to pay for that stuff?
Mr. Ross. So in our economic analysis, we did qualitatively
discuss if there would be reduced Federal jurisdiction----
Mr. DeFazio. Qualitative, not quantitative?
Mr. Ross. Because we do not have the data----
Mr. DeFazio. OK. So you don't have any data. So maybe
before you propose anything, you should go out and get some
damn data.
Mr. Ross. That is exactly what I am trying to do. The last
administration and the prior administrations failed to develop
maps of waters in the United States in this country. In our
proposal, if you take a look at our--at our--we actually----
Mr. DeFazio. OK. Let's try an easy one. This is an easy
one. This is an easy one, because this comes from the Bush era,
Republicans.
In 2007, EPA estimated 16,000 existing permitted facilities
were located on intermittent, ephemeral, or headwater streams.
So if those streams, some percentage of them--you don't know
what--are taken out by your new rule, what happens to those
permits?
Mr. Ross. Well, it depends. If they still satisfy the
definition of point source and conveyance, they still are
regulated under the Clean Water Act.
Mr. DeFazio. But you are saying some percent. Eight
thousand, ten thousand, twelve thousand polluters would no
longer be regulated because those permits would just go away
because you deemed that an intermittent or an ephemeral stream
is never going to put that crap into a permanent stream?
Mr. Ross. One, we are not proposing to reduce jurisdiction
over intermittent. And, two, if they still satisfy the
definition of point source, they will be regulated. And, three,
the States have robust environmental programs under State law.
Mr. DeFazio. No. Many States, in fact, can't exceed Federal
Clean Water Act requirements. So if you deregulate someone and
they no longer are regulated by the Feds, many States have laws
saying they can't regulate them. They would have to go out and
pass a new law and then they would have to set up a new
regulatory system with constrained resources, something that
the Federal Government has been doing very well. But we are
going to abandon that practice. For what reason?
Mr. Ross. Because of the rule of law. The last
administration----
Mr. DeFazio. The rule of law.
Mr. Ross [continuing]. Proposed a rule that courts have
already struck down.
Mr. DeFazio. OK. Let's go to one last one. I talked about
the TVA spill. Horrible, horrible disaster. And later, a bunch
of workers died who were cleaning it up, let alone the
permanent damage to the environment and the people who lived
adjacent to it, all that. And you are going to reverse those
efforts that will allow up to 90 percent more pollution by
these persistent toxic materials.
Why is that? It has a tiny incremental cost--well, of
course, you probably don't have that data--on the cost of
energy generation or availability. But, hey, you know, might be
a mill per kilowatthour, so what if we inundate thousands of
acres with toxic materials, kill some more people, whatever.
Mr. Ross. So the administration is taking a look at the
coal combustion rule, which is actually a different program
office than mine, so I am not working that particular rule, but
I understand----
Mr. DeFazio. OK. But I am sure they are going to follow the
rule of law.
Thank you very much. I am just pleased you are here today.
Thank you, Madam Chair.
Mrs. Napolitano. Thank you, Mr. DeFazio.
Mr. Westerman.
Mr. Westerman. Thank you, Madam Chair.
Mr. Ross, I am the ranking member on the subcommittee, but
I am also a licensed professional engineer. I spent over two
decades doing engineering work, and I have actually worked on
NPDES permits, on stormwater discharge permits. I have been on
the other side of it and seen the regulations that come down
from the Federal Government, and also have worked with people
who have probably forgot more about permitting and what you
have to do to actually meet the requirements of permitting than
the collective knowledge of this committee.
It is a lot different when you are in the real world
dealing with what comes down from Washington, DC. And I am
curious--and the chairman has stepped out--but these maps and
information he is talking about, I can tell you a lot of
engineers that would really like to see those maps and
information if they are out there.
Could you point us to where those maps are that the
previous administration developed?
Mr. Ross. Well, the previous administration actually
provided them to Congress but did not include them in the
docket for the 2015 rule, because they determined that they
were not representative of the jurisdictional waters of the
Clean Water Act. They are effectively based on the National
Hydrography Dataset that the USGS runs, and also the National
Wetlands Inventory, which the Fish and Wildlife Service run.
The National Hydrography Dataset, for example, cannot see
and cannot tell the difference, even at high resolution,
between intermittents and ephemerals other than in only certain
portions of the country. And based on the data that you guys
have been citing earlier today, the 117 million Americans was
based on the National Hydrography Dataset at medium resolution,
which means it can't see ephemerals.
The National Wetlands Inventory has way more wetlands on it
than jurisdictional wetlands, because it was created for a
different purpose. So those maps are available. They were
submitted to Congress in the last administration, but they were
not included in the rulemaking for the Obama rule because they
are not representative.
So my job is to try to close that gap. The last
administration believed that we did not have the ability to map
this. I disagree. And so we are working with our Federal
partners to try to map this so that 5, 10 years in the future,
people will be able to stand on the landscape and identify a
Federal versus a State water. I believe we have the skills to
do it. It is just going to take us the time to do it.
Mr. Westerman. And it sounds to me like you are actually
trying to apply science, trying to use the best mapping
technology to come up with something so that people who are out
there trying to deal with these regulations actually have
something that they can use to meet the requirements. If you
don't know what the requirement is, it is hard to meet the
requirement.
I have a picture--I am not sure if it is going to be able
to be put up on the screen, but it is a 4-acre pond that a
constituent of mine sent, in a development in Texarkana,
Arkansas, that they went through every permitting regulation,
jumped through every hoop and hurdle, they built the pond for
retention water, did a remarkable job of improving the
environment in this area, but now the Corps of Engineers has
come back--here's a picture of the pond--and told them that
they have to pay $340,000 of mitigation credits or remove this
dam. That is not something they knew on the front end.
[Slide.]
So I applaud the administration for trying to put some
sanity into these regulations so that people know how to deal
with them.
How will the new WOTUS definition provide some clarity and
end years of uncertainty over where Federal jurisdiction begins
and ends?
Mr. Ross. Well, first and foremost, we started with the
touchstone. We took a look at the case law, the Supreme Court
guidance, to try to figure out where would the scope of our
authority begin and ends. And so with that--you know, my job is
to protect the Clean Water Act. And if we continue to drop
regulations that push the constitutional envelope of our
authority, at some point, a court is going to declare the
definition of waters in the United States incapable of
definition. That will actually create significant tension for
the long-term legality of the Clean Water Act.
So my goal is to defend the Clean Water Act, and we are
doing that by staying in within the bounds of our legal
authority and then regulating the known waters. The traditional
navigable waters, the perennial waters, we have actually
proposed to include intermittent waters, and then the adjacent
wetlands that we know connect on a regular basis to all of
those waters.
The goal is certainty, predicability, clarity. It is out
for comment. We have gotten 600,000 comments. We are taking our
time to analyze that, and we will move forward with finalizing
it as soon as we possibly can.
Mr. Westerman. And the chairman also suggested that we take
more time so that we could apologize. I would like to take some
time and apologize to all those farmers, those construction
workers, everybody that is out there in this country trying to
do the right thing, to make the economy better, to protect our
water quality. They don't want to sidestep the rules or avoid
the rules. They want to know what the rules are so that they
can meet the regulations, so that they can carry on with their
business, and so that they can provide all the needs that they
provide for this country.
So I will take a moment and apologize for the ineptitude of
the Federal Government to give them the tools that they need to
do their job. That is what most people want to do. They don't
want to destroy the environment. They don't want to pollute
streams.
Just like this pond up here, that pond provides erosion
control, improves water quality. But because of some regulation
that somebody felt like on one certain day, now they are saying
you have got to go in and tear it out at a huge cost or buy
mitigation credits. There is no common sense in what is going
on in many of these rules that are getting passed down.
So again, I applaud the administration for trying to put
some common sense into the policy to find out what the science
is, to provide the maps, to provide the delineations, so that
people can do the work that they are trying to do every day.
Section 101(b) of the Clean Water Act states that it is the
policy of the Congress to recognize, preserve, and protect the
primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution, to plan the development and
use, including restoration, preservation and enhancement of
land and water resources, and to consult with the Administrator
in the exercise of his authority under this chapter.
Wouldn't you agree that it was the intent of Congress,
through these words, to recognize the primacy of States in
protecting their own waters over that of the Federal
Government?
Mr. Ross. I agree. I think that has been lost on the
Federal Government in the past several decades.
Mr. Westerman. Do you think the States understand the water
issues in their areas better than the Federal Government can
understand those issues from afar?
Mr. Ross. I have had the honor of working for two different
States in two different parts of the country, very dry in
Wyoming, wet in Wisconsin. When I left this city and went to
work for the States, I had a misinformation and misbelief that
people in DC knew the resources best and the landscape. I was
wildly wrong.
It wasn't until I went and worked for the States that I
recognized that they know their resources best. They know how
to manage their resources best. Our job is to make sure that
they are given the resources and the ability to manage their
own resources and work in collaboration with the Federal
Government. I didn't know that before I went and worked for the
States.
Mr. Westerman. Thank you. I yield back.
Mrs. Napolitano. OK. Assistant Administrator, as a followup
to your statement, if I take your statement on the need for
additional maps on the status of streams and wetlands at face
value, then why would you propose to move forward on a proposal
to change that jurisdiction before you have that data?
Mr. Ross. Well, we are moving forward, one, because the
2015 rule has been ruled and sent back to the Agency as
illegal. The second is we are restoring the familiar framework
that folks have been operating since the mid-eighties. But we
are moving forward with a new proposal because it is time to
end the uncertainty and the confusion that the ranking member
mentioned that the farmers, developers, the regulated community
struggles with, a confusing definition, and every time a court
issues a different decision, jurisdiction changes. It is time
for us to do our job and provide a clear definition of ``waters
of the United States'' that will withstand judicial scrutiny.
Mrs. Napolitano. I hope you do so with the input from the
people involved.
That will begin the questionings. And thank you for your
questions--you answered the questions. And we have a timer to
allow 5 minutes for each question from each Member. If there
are additional questions, we will have a second round or more
as necessary.
As in my district, the Department of Defense left behind
the legacy of contamination that has threatened the health of
my constituents for many years. Today, communities across the
country are facing the same concerns with the PFAS pollution.
The EPA's PFAS Action Plan recognizes the adverse health
effects from exposure to this legacy contaminant.
On the next panel, we will hear from a witness who has been
personally impacted by the PFAS contamination in his community.
Do you think PFAS pollution poses a risk to human health?
Yes or no.
Mr. Ross. Yes. Where we have exposure and we know the
toxicological profile of the chemicals, yes, there are
communities that are impacted by PFAS pollution.
Mrs. Napolitano. Do you agree that a multifaceted effort to
reducing additional release of PFAS chemicals and cleanup of
those already in the environment are necessary to limit the
exposure to these pollutants?
Mr. Ross. Yes. That is, in fact, the touchstone of our
national action plan, is to take a holistic view of all the----
Mrs. Napolitano. How long will it take? We are in a crisis.
Mr. Ross. Well, we are actually moving quickly on--one is
the first action plan across multimedia offices that the Agency
has ever developed, and it is a holistic approach that grapples
with both the chemical entry into the market, the cleanup, the
liability associated with it, the water quality standards, the
science----
Mrs. Napolitano. Have you set the standards yet?
Mr. Ross. Well, we have--in the PFAS Action Plan, we
committed to developing a certain set of rules. And, for
example, on the Safe Drinking Water Act, we are moving forward
with the regulatory determination process for PFOA and PFOS--P-
F-O-A, P-F-O-S. It is hard to say those. And so we do--and we
committed to getting that done by the end of the year, and we
are still on schedule.
Mrs. Napolitano. Before the end of the year, I hope to
receive some information on that, sir. It is very important.
I would like to jump to your letter dated September 16
about EPA's draft National Water Reuse Action Plan released on
September 10. And we have discussed that. I am passionate about
water reuse and innovative technologies so that communities can
reuse the water, they clean it up, especially in places like
California where resources can be scant. And I appreciate what
your agency is doing to move the ball forward.
But can you describe the administration's Water Reuse
Action Plan and how it seeks to discourage the development and
implementation of new technologies and practice water reuse.
And how are you working with other Federal agencies, such as
the Bureau of Reclamation, who has a long history of water
recycling with their title XVI program, the water recycling
program?
Mr. Ross. Well, one, I want to thank you for your interest
and your leadership on water reuse. Very rarely do Federal
Governments and State and local governments think holistically
about what we are going to need 10, 15, 20 years from now. We
usually react to crises.
The National Water Reuse Action Plan is designed to make
sure that we have a sustainable source of new supply of water
5, 10, 15, 20 years from now, rather than reacting to a
significant drought, for example.
We are working in collaboration with our Federal
Government. In fact, when I announced the National Reuse Action
Plan, the Bureau of Reclamation Commissioner was with me,
Department of the Interior was with me, the Department of
Energy, Council on Environmental Quality, Department of
Agriculture. It was a broad effort across our Federal family to
work with our stakeholder engagement. And so the Federal family
is fully invested in this effort.
Mrs. Napolitano. Would this committee be able to find out
what the outcome of that collaboration is?
Mr. Ross. Absolutely. One, I think we sent you the draft
action plan. I encourage you to read it. I think our team did a
fantastic job with it. Our next 90 days, it is a public comment
period, but we are really hoping it to be a public commitment
period.
There are 46 actions identified in the action plan under 10
strategic objectives, and we are looking for partners to
champion each one of those action items, both from
accountability standpoint, identify themselves, and put
themselves on a shot clock. Our Federal partners will be
committed to doing several actions in the action plan.
Mrs. Napolitano. What can Congress do to further promote
water?
Mr. Ross. Well, there's a lot that Congress can do. One,
obviously, you have the power of the purse. And I have actually
leveraged the WIFIA loan program and identified water reuse as
one of our national strategies. And I am thankful that, in the
last year, we actually did receive several applications that
will incentivize water reuse in large areas.
But it is also helping provide resources to rural America.
Where large communities have the resources and the tax base to
go after a ratepayer, small rural America struggles with water
resources, and I think Congress needs to spend some attention
thinking about rural America.
Mrs. Napolitano. Thank you very much.
I now recognize Mr. Bost.
Mr. Bost. Thank you, Madam Chairman.
First off, let me start off, Mr. Ross, by saying that I
don't think there is anybody on this dais or in this Congress
that wants to ruin water for our children and our
grandchildren. I think what you do is good. But I think
whenever you made the statement what you wanted to do was
follow the law that is produced by Congress and implement it
correctly with the best science possible, and that is what we
want to see.
That being said, in drafting regulation, the Agency
estimates avoiding costs of up to $340 million. You know, I
have met with several stakeholders in my district about the
2015 water rule. The most common concern expressed was the
haphazard way the rule was applied and potentially direct costs
associated with permitting. And it didn't matter whether it was
farmers or it was other businesses. But the other concerns are
impacts the rule has on the economic activity and investments
overall. In my district, aggregate providers indicated that in
addition to their own direct costs, the rule was suppressing
building an investment by their own customers.
Shouldn't the Agency require to conduct more rigorous
economic analysis of their proposed rules to include impacts on
jobs and the economy overall?
Mr. Ross. Well, the answer is yes. Under Executive Order
12866, we actually do take a look at the broad economic
consequences of a proposed rule. And so in--our step 2
proposal, for example, we did go after, to the best we could--
because some of the questions we were talking about earlier, we
lack sort of the mapping capability to watch changes in
jurisdiction. But we do take into account economic impact into
our rulemakings. And we have a several-hundred-page economic
analysis that gets into that that we can share with the
subcommittee.
Mr. Bost. OK. And those are the important things that we
need to know as we move forward.
But let me tell you that as a Member that spent 20 years in
the State legislature as well and watching the States try to
implement their own rules, actually having to get a discharge
permit, they said just for recording purposes, but then later
came back and putting on businesses that could not afford it
$5,000 and $10,000 discharge charges through the State. Every
time we turn around, whether it is a small business, a medium
business, a large business, whether it is agriculture, whether
it is aggregate, or whatever the business might be, the problem
is, is they never really know what is expected of them and we
keep moving the goalpost every time we turn around.
Now, I said from the start that the concern that I have is
that I want clean water for my children and grandchildren. That
being said, your job is to do what you brought up earlier while
you were trying to explain, and that was it is the rule of law,
created by us, not by you. I think that the previous
administration tried to go above and beyond that, and not the
rule of law but the rule of administrative rule, to try to
implement their own ideas without coming through Congress.
If a Member of Congress has a problem with what you are
doing and they can say that, well, they are following the law,
and they are not happy with the level of that law, then we need
to get that done, not you.
I am very impressed with your ideas of what you are
proposing to do and how you are moving forward, and the idea of
allowing people who are making investments in this Nation,
whether it is a farmer or whether it is a customer or a company
that produces widgets, whatever that widget may be, that they
at least know the rules of the game as they go in and know that
the goalpost can't keep getting moved.
And that was the problem with this rule, and it has been
for many years, because it got to the point that the general
public was feeling like that the EPA wanted to control the
drops of water running off my cap when it rained. I believe
that it is very clear what the law is, and I think you are
doing a fine job. And thank you for your time.
And with that, I yield back.
Mr. Ross. Thank you.
Mrs. Napolitano. Thank you, Mr. Bost.
Ms. Mucarsel-Powell, you are--I am sorry? OK. Thank you.
Ms. Mucarsel-Powell, you have the floor.
Ms. Mucarsel-Powell. Thank you.
Good morning, Mr. Ross. I represent the southernmost
district in the State of Florida, Florida Keys. The Everglades
is a huge part of my district. And as you probably know, the
Everglades are crucial for all of Florida. The health of the
Everglades is essential for our economy, for our health, and
for our wildlife.
The Everglades also naturally filters out toxins and
harmful nutrients like phosphorus. Higher levels of these
pollutants lead to toxic algal blooms, countless dead fish, and
red tides. Clean water from the Everglades also provides clean
drinking water for more than 8 million Floridians alone.
Now, the Florida delegation has been working closely
together, on a bipartisan basis, to push forward Everglades
restoration. We recognize the importance of these wetlands. And
it seems that now, the administration, after having adjusted
its budget request for Everglades restoration to the full $200
million, which I requested, it is beginning to recognize their
importance too.
But what is very difficult to understand is that the
administration's actions are in conflict with each other. On
the one hand, it says that it wants to fund Everglades
restoration. And then on the other hand, it is working to
rewrite regulations to make those protections even weaker for
our water in Florida.
So either the Trump administration and the EPA care about
Florida or they don't. So under your position--and I quote
this--``under cooperative federalism, those waters not covered
by the Federal Clean Water Act would be addressed by the
individual States.''
We saw what happened back in 2016 under the previous
Governor, his administration. What they did was the Florida
Department of Environmental Protection updated its regulations
to permit more toxic chemicals to come into the water.
And I have some images that I would like for you to take a
look at. I don't know--have you seen the toxic algal blooms?
This is 2 years after the Governor actually eased the
regulations, permitting more toxic chemicals to be released
into the water.
[Slides.]
Images of Toxic Algal Blooms in Florida, Submitted for the Record by
Hon. Debbie Mucarsel-Powell
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Mucarsel-Powell. And I heard you talking about economic
impact. We had to close several businesses along both the east
and the west coast of Florida. Fifteen people ended up in the
emergency room. We saw images of thousands of dead fish, dead
manatee, dead dolphins. We continue to work on this issue.
So if I hear you correctly, you are saying that you want to
leave it up to the States to regulate their own waters, right?
Is that correct?
Mr. Ross. Actually, both Federal and State regulation,
depending on the----
Ms. Mucarsel-Powell. Both Federal and State.
Can I ask you what you are currently doing? How are you
working closely with the Army Corps into how you regulate those
toxins that are coming into Lake Okeechobee that have caused
these green-blue algal blooms to be released?
Mr. Ross. So we are working very closely with the Army
Corps of Engineers. I have talked to R.D. James and Mr. Fisher
specifically about this, working in partnership. Our teams have
been down, actually, touring Lake Okeechobee with----
Ms. Mucarsel-Powell. When was that, Mr. Ross?
Mr. Ross. Earlier this year. I sent my Principal Deputy
down to actually take a tour of Lake Okeechobee.
Ms. Mucarsel-Powell. And have you formed a plan of action
here?
Mr. Ross. Well, there are a couple of things that we are
doing. One, we are working with the State and working with the
Corps to try to figure out the lake levels associated with, you
know, how do you actually grapple with the lake levels and
discharges. There is a plan in place in working with the
Department of Agriculture----
Ms. Mucarsel-Powell. And what about regulating the
pollutants that are coming into the lake?
Mr. Ross. Well, so some of that is nonpoint source
pollution that is outside the scope of the Clean Water Act. But
I am actually spending a lot of time and energy on excess
nutrients in surface water. It is one of--it is one of our--we
have our regulatory tools and total maximum daily loads and all
those enforcement tools. But we also need to do a better job
tapping into our creative market-based mechanisms. And so over
the course of this year, I have developed a policy to
incentivize market-based mechanisms.
Ms. Mucarsel-Powell. If you can provide that plan for me, I
would really appreciate it. I am almost out of time.
Mr. Ross. I would be happy to.
Ms. Mucarsel-Powell. One more question that I had for you.
In south Florida, we have wet and dry season, as you are aware.
And during some dry seasons, which of course fluctuate year by
year, significant portions of the Everglades dry up. And I am
deeply concerned that the administration's actions will leave
much of the Everglades without the Clean Water Act protections.
Can you assure me today that--to me and my Florida
colleagues--that any rule that the administration implements as
it pertains to the Clean Water Act will ensure that the
Everglades and its watershed will receive full Clean Water Act
protections, despite dry areas during dry seasons?
Mr. Ross. So my understanding is the Florida Everglades are
the wetlands that would remain subject to our jurisdiction in
our proposed rule, one.
Ms. Mucarsel-Powell. So can you make that assurance to me
today?
Mr. Ross. Well, holistically, it is a large landscape down
there. And so if there are individual----
Ms. Mucarsel-Powell. So is that a no?
Mr. Ross. It is a yes, qualified by I can't speak to every
single wetland down in Florida. But the other thing I want to
mention is Florida has a really remarkable wetlands protection
program. And so they regulate wetlands----
Ms. Mucarsel-Powell. You mean the State?
Mr. Ross. The State of Florida has a more----
Ms. Mucarsel-Powell. You can see what happens when we leave
it up to the State.
Now, so is the EPA under the Trump administration going to
open up the Everglades for further development and pollution,
if you are not willing to make that commitment to me today?
Mr. Ross. I have no plans to open up the Everglades for
further development, but that really is a local and State
issue.
Ms. Mucarsel-Powell. Thank you.
Mrs. Napolitano. Thank you, Ms. Mucarsel-Powell.
Mr. Palmer, you have the floor.
Mr. Palmer. Thank you, Madam Chairman.
First of all, Mr. Ross, I want to go back to the question
about mapping. And I would like to know, is it possible to use
maps for regulatory purposes?
Mr. Ross. So right now, the NHDPlus and the National
Wetlands Inventory are not used for regulatory purposes. And,
in fact, we can submit significant letters from the last
administration saying that. In fact, EPA published a blog in
2014 saying they cannot be used for regulatory purposes now or
ever.
The last word I don't agree with. I actually think we can
improve these maps and use them in the future. But we have work
to do.
Mr. Palmer. So you think you could use maps like the
National Hydrography Dataset and the National Wetlands
Inventory, those type maps, for regulatory purposes, or
particularly for jurisdictional determinations?
Mr. Ross. We use them--the Army Corps of Engineers uses
them a little bit as desktop tools as they go out into the
field before they go do their field verification. So they are
useful tools as desktop before they go out. But actually making
decisions based on those maps, no, they are not designed to do
that, and they have never been designed to do that.
Mr. Palmer. Are they complete? Are they----
Mr. Ross. No.
Mr. Palmer. They are not?
Mr. Ross. They are not complete. The number one flaw on the
National Hydrography Dataset is that they don't really see
ephemerals. There are portions of the country--and the USGS,
Dr. Reilly and his team, are actually working to improve the
resolution to see additional water resources. But right now,
they really struggle between differentiating between ephemerals
and intermittents.
Mr. Palmer. And it seems to me that we are--we are--the
previous administration, particularly, and maybe the
administration before that, is making decisions on incomplete
datasets.
Mr. Ross. Well, actually, the last administration decided
not to use those maps as part of their rulemaking. They
specifically did not use them and did not put them in the
docket.
Mr. Palmer. OK. That is what troubles me, is we heard a
very impassioned--you received some pretty impassioned
questioning from the chairman.
And I know people have great concerns. We have gone through
water quality issues before. But it is--first of all, it is
insulting to infer that anyone wants to have filthy water, that
anyone wants to destroy water for recreational use, much less
drinking.
And the thing that gets me is, going back to the 2015 rule,
when this first came about, is that it appeared to rely on data
estimates that were really about supporting an environmental
agenda. They didn't do original research. Is that what you
found?
Mr. Ross. Well, my--and granted, I wasn't around. But that
is why I said in my opening statement that my job is to begin
with the law as it is written, not what I want it to be. I
believe the last administration was pursuing policy objectives
before looking at the law.
Mr. Palmer. And that is my point. The last administration
transferred benefits from estimates that really didn't apply to
the rule. And it became--I really think it became more about
more Government control than it was really finding solutions to
the problems that we do have.
And I worked for two international engineering companies,
one of which was Environmental Systems. And I know we have got
the technical ability to make dramatic improvement in water
quality, air quality, land use, pretty much anything you want
to do. But that has to be your primary objective. It can't be a
political objective. If it is just a political objective and
you don't apply the right science, the right engineering, the
right technology, you don't get the result that you really want
to have, unless, of course, the only result you really want to
have is control.
So that is what I am hoping will come out of this
administration, is a science-based approach to water quality
and not just a massive attempt to take over whole aspects of
individual lives that impact their property and their ability
to support themselves.
Mr. Ross. We have great scientists at EPA and in the Office
of Water, and I rely on them every single day. And so our job
is to take a look at science--contrary to what people write
about, we are actually looking at science as we are making our
decisions.
Mr. Palmer. Well, I appreciate the fact that you are here
today. I want you to answer the questions of all the colleagues
on both sides of the aisle accurately and confidently. And even
when it appears that you are being browbeaten, to speak
truthfully about the work that you guys are trying to do.
With that, Madam Chairman, I yield back.
Mrs. Napolitano. Thank you, Mr. Palmer.
Mr. Lowenthal, you are on the floor.
Mr. Lowenthal. Thank you, Madam Chairman.
Welcome, Administrator Ross. Thank you for testifying
before this committee in this hearing.
Last year, the administration also proposed revisions--
another part of the revisions to the Clean Water Act were the
regulations on wastewater. This blending proposal could allow
for the discharge of untreated sewage into our waterways. We
have seen, in my district, which is a coastal district, we have
seen the results of this, what I consider, misguided approach.
During times of heavy rain, wastewater systems have failed,
which results, you know, then when we allow for this, weeks-
long closure of our beaches and our waterways, which have to be
done in order to protect the public from untreated,
contaminated sewage.
You know, in 2005, EPA withdrew a similar proposal in part
because of the lack of evidence that blending will not
adversely affect the environment or public health.
Are you aware of any new analyses of the public health or
the environmental impact of blending?
Mr. Ross. The team actually has done extensive stakeholder
outreach and is gathering the additional information. And let
me be clear. We are not talking about discharging raw sewage
into the waters of the United States or in other waters. That
is not what our policy proposal is about. In fact, you put your
finger on the real issue is, in wet weather events, if you get
too much flow through secondary treatment after the grit
screens and the primary clarifiers and the secondary treatment,
we primarily rely, most places, on bugs. Too much water will
blow out those bugs. If you don't manage that, then the actual
real environmental concern that I have is that you blow those
bugs out, and then you don't have the wastewater treatment
system up and running.
So what we are trying to grapple with is, how do systems
manage the secondary treatment in a wet weather event such that
they don't blow out the bugs?
Mr. Lowenthal. But you also--we need to know--do we know
how many treatment or publicly owned treatment works engage in
this process of blending, and are you going to gather that, and
are they monitoring? Because, as you said, it is not we are
blowing out sewage. Are we monitoring, EPA, the presence of
pathogens in these blended, and could you give us that data?
Mr. Ross. One, I don't have the data with me, and the team
is looking at it, but what we really do in most circumstances
where the States have authorized blending, and a lot of times
the States are the ones here who are the permanent authority.
If they are protecting the bugs, they bring the water back in
to the disinfection system. That takes care of the pathogens.
So, when they blend it back in before it gets discharged, it
does get disinfection.
Mr. Lowenthal. Well, my concern is not to find some magic
bullet like blending. We are really talking about investment.
Too many cities have decades-old treatment infrastructure.
Their capacity hasn't kept pace with population growth. But
these investments depend upon Federal support. Earlier you
talked about the successes of the WIFIA program, and we also
have the State Revolving Fund program. Both of those are the
backbone of our water infrastructure investment. What I would
like you to explain to me is why this administration has
proposed severe cutbacks to both those programs.
Mr. Ross. Well, there are two answers. One, I think in the
administration's proposals on budgets, they are trying to
balance, you know, kind of the budget, fiscal responsibility
and some of the budgets cuts they are proposing were to rely
more on the States and----
Mr. Lowenthal. So you are saying rely more on the States
and so increase or allow the States to propose these blending
programs rather than provide the infrastructure because this is
an old and, in many cases, infrastructure that really needs
rebuilding. And you have talked about the successes of these
programs.
Mr. Ross. Yeah, so, two things. One, my job first and
foremost is to spend the money that Congress appropriates as
intelligently, as appropriately as possible. So I get
appropriations, and our job is to wheel the money out to grant
loan programs, but on the blending issue, that is actually one
of the questions is right now, because there is a different
regulatory regime across the country. Because of an Eighth
Circuit decision called Iowa League of Cities, there are
different rules at play depending on what State you reside in.
That is not regulatory certainty for the regulated community.
And what happens is there are--the entities that may have
to be forced to run water round to protect their bugs are faced
with some kind of contingent liability, and rather than--they
actually have to think about upgrading their facilities through
huge capital investment rather than thinking about managing the
episodic overflow.
Mr. Lowenthal. I----
Mr. Ross. If you are talking about infrastructure
investment, it is actually this is a more efficient way to go
after it.
Mr. Lowenthal. It may be a more--my time is up, but I would
like to point out again that we are talking about, when
treatment facilities cannot handle, because of the peak flow of
wastewater, and rather than investing in infrastructure, the
administration is proposing cutting infrastructure investment.
Thank you, and I yield back.
Mrs. Napolitano. Thank you, Mr. Lowenthal.
Mr. LaMalfa, you have the floor.
Mr. LaMalfa. Thank you, Madam Chair. I appreciate it.
And, Mr. Ross, thank you for appearing with us today.
You know, again, going back to the 2015 rule,
reinterpreting the Clean Water Act of 1972 under the Obama
administration, a rule likely tailormade for environmental
groups to find solace and happiness with a new interpretation,
so--yet they still consistently sued the Federal Government
from that point forward.
So, I guess, you know, rhetorically: How much money do we
have to spend defending the Federal Government's action from
the environmental groups?
Then, on the other side of the coin, how much has to be
spent preventing the economic development of land that is
already in production for energy or even agriculture, clearly
exempt activities under the original Clean Water Act of 1972--
telling farmers and ranchers, these are clearly exempt items?
So, you know, the courts could have struck down the Clean
Water Act, but they went after this 2015 rule. So, until last
week, we had 22 States that were following one set of rules and
28 that were doing another set of rules. So we had kind of a
mess there.
So let me zero in on a couple of things. Really important
in my district in northern California, we have had activities
to enforce against farming and ranching activities where fallow
land had been brought back into production or maybe a change of
crop.
Reinterpretations of saying that you now need to have, go
through a permit process 3 years long generally and hundreds of
thousands of dollars. I don't know how you can spend hundreds
of thousands of dollars getting a permit to do something that
is already clearly exempt under the Clean Water Act for farming
and ranching specifically. We can get into mining later. But so
millions of dollars of fines have been paid by some growers
under WOTUS, under reinterpretation of what constituted a need
for a permit under Clean Water Act.
So, with this ruling and with it having stood up in court,
is the EPA and Army Corp, some combination, going to consider
any steps to pay restitution to previous penalties that have
been paid by farmers and ranchers, sometimes to the tune of
millions of dollars, as a result of this abysmal 2015 rule and
having been struck down by the courts?
Mr. Ross. That is a fairly big-ticket legal question that I
am not prepared to answer. My answer is I am not aware of any
discussion of that kind.
Mr. LaMalfa. Are you aware that at least the Agency is
capable of doing so, having been found that it was out of
bounds----
Mr. Ross. Those----
Mr. LaMalfa [continuing]. From one administration to
another, having now gone through the court process, the legal
process?
Mr. Ross. At this point, those are issues I would prefer
not to speculate on. What I will tell you is I am aware of two
core principles. It is time for the Federal Government, whether
or not it is Congress or EPA, to step up and give clear
definitions so the goalposts stop changing, one.
Two, I strongly believe in investment certainty. I used to
work for the private sector. I understand what it takes to
operate a business. I have represented folks who operate a
business, and I understand investment certainty.
Mr. LaMalfa. Again, coming back to what rural America has
been dealing with on this, you know, some of my colleagues
talked about ponds. You have people had made, put together
stock ponds just to store water, and the benefits of those, as
was discussed, was for erosion control and flood control to an
extent, all well-intended, good things happening in rural
America.
So I thank the Agency for paying more attention and
listening to what happens in rural America instead of just
large buildings here in Washington, DC. So farmers and ranchers
and others that do outdoor activity are rejoicing over the
direction you are going with this, but I still am concerned how
much is left in the pipeline litigationwise or what have you
that we are still going to have local enforcers like we have
seen in northern California, whether it is out of the EPA
office or the Army Corps office, working together, to basically
freeze agricultural and other activities because of the threat,
sometimes not even carried out, of a fine or an action against
them.
Can you tell me that this activity will stop and that the
divisions out in the field are going to be basically instructed
to stop these enforcement activities outside of the intent of
the law?
Mr. Ross. Well, as a former prosecutor for a State, I can
tell you that, when I talked, it carried a significant chilling
effect. We will continue to implement our enforcement programs
under the Clean Water Act. We have a robust enforcement
program, but our job is to take a look at what the law requires
before you make an enforcement decision, and I can guarantee
you our teams are doing that.
Mr. LaMalfa. I thank you for that because, again, it is
about enforcing the law as written and achieving the goal of
doing activities that do help keep the water clean.
So, with that, Madam Chair, I yield back. Thank you.
Mrs. Napolitano. Thank you, Mr. LaMalfa.
Mr. Carbajal, you have the floor.
Mr. Carbajal. Thank you, Madam Chair.
Welcome, Administrator Ross.
For the past 2\1/2\ years, the administration has focused
on an outdated 20th-century energy policy to meet the needs of
the 21st century. From issuing misguided Executive orders
promoting dirty fossil fuels, increasing oil and gas
extraction, infracting on public lands, and proposing draconian
cuts to agencies like the EPA, the administration has put
corporate interests above the health and safety of our
communities.
One of the largest cuts to the EPA budget is to the Oil
Spill Prevention, Preparedness, and Response program. How can
we expect to maintain proper oversight and guard against future
oil spills like my district has seen time and time again when
this program is facing significant cuts?
Mr. Ross. Well, again, our job at the Agency is to spend
the money that Congress appropriates, and I do know the spill
prevention program is a robust program. In fact, I know, was
just having conversations the other day about enforcement
associated with spill prevention issues. So it is alive and
well at the Agency, and it is a robust program and the teams
are doing a nice job implementing it.
Mr. Carbajal. But with all the cuts that have occurred, do
you still have the same span of control and oversight?
Mr. Ross. With all the cuts. So, actually, my program has
been plussed up. So, in the last several years, the Office of
Water has gotten more funding and more responsibility. We had
dropped 32 new programs on the Office of Water. So, in my
personal experience, we have gone up in budget, not down.
Mr. Carbajal. Also, in the spill and preparedness program?
Mr. Ross. I can't speak to the budgets on the spill and
preparedness program. A lot of that is run out of a different
office.
Mr. Carbajal. Because that is the one I was referring to.
With the cutbacks by the EPA, does this mean that
compliance with environmental safety rules are less of a
priority in this administration?
Mr. Ross. No, they are not. Susan Bodine does a fabulous
job with the enforcement team. I am thrilled as, from a water
perspective, she is focused on cutting significant
noncompliance and NPDES permitting as one of her core
objectives. And another major priority for the Agency is to
actually cut back the amount of small and medium communities
that are in noncompliance with the Safe Drinking Water Act.
So the enforcement program, from my perspective, is focused
on the really core areas I care about in the Office of Water.
Mr. Carbajal. In California, there was a proposal to allow
for fracking on over 1 million acres of public land by the
Department of the Interior. At the same time, EPA is
considering comments on promoting greater reuse of fracking
wastewater without clearly responding about the potential risks
this poses to our environment and public health.
Does the EPA support requiring full disclosure of any
chemical additives to fracking wastewater before that
wastewater can be proposed for reuse as a source of irrigation,
water on food, or potable reuse?
Mr. Ross. So, in the Water Reuse Action Plan that we just
proposed for public comment last week, produce water is a very
significant resource of water. And we have a very long section
there to describe, called Fit For Purpose. So, as we study, you
know, produce water as a potential viable new water source, we
are also taking a look at whether or not it is Fit For Purpose.
So what is it intended to be used for? Whether or not it is
irrigation, surface water augmentation, groundwater recharge,
manufacturing, light manufacturing use, the aspect of the reuse
has to be associated with Fit For Purpose. So that is a very
significant component of our water use action strategy.
Mr. Carbajal. How are you going to address the exemption
that exists for fracking operations in the Safe Drinking Water
Act that does not require disclosure of chemical additives?
Mr. Ross. That I actually haven't--that is not in my
program, at least I think. I will have to doublecheck, but so I
don't have an answer for you, but I can answer the question for
the record.
Mr. Carbajal. Thank you very much.
Madam Chair, I yield back.
Mrs. Napolitano. Thank you, Mr. Carbajal.
Mr. Woodall, you have the floor.
Mr. Woodall. Thank you, Madam Chair.
Thank you, Mr. Ross, for being here.
I appreciate the shots that you have taken on budgeting,
and I appreciate your response that you spend the money that
Congress appropriates to you. Yes, the administration produced
a budget. I didn't like everything that was in that budget
either, but that is a step higher than what this House did when
we produced no budget at all this year. There is no vision of
what we are going to do this year, next year, the year after
that, no long-term vision of any kind. We have one
responsibility on the Budget Committee on which I sit, and we
could not fulfill it. So, knowing you were going to take shots,
the administration still put forward a budget, and I am
grateful to you for doing that.
You know, we, last month, had a court decision in the
Southern District of Georgia, a case that Georgia led dealing
the overreach of the WOTUS rule. And in that decision, the
court said this along the lines of what you said this morning:
Congress has delegated the important role of protecting the
Nation's waters to the agencies, but in fulfilling that role,
the agencies must comply with the law. All you can do is deal
with the law that is in front of you, and they have failed to
do just that.
And the court went on to say that they were going to block
any rule from going into effect as the agencies continue their
efforts to change the WOTUS rule in light of the serious
defects identified in the order.
We need that clarity. I will put Georgia's environmental
stewardship second to none. I am sorry to hear of other States
that don't value their State's leadership. I do value our
State's leadership, and I understand that you are trying to
provide clarity in these revisions of the WOTUS rule. I
actually value certainty even more. Clearly, the Obama
administration was trying to provide certainty in 2015. And,
clearly, they failed, as that litigation continues.
Can you talk a little bit about, as we go on to step 2,
what my expectations and the constituents' expectations should
be around certainty?
Mr. Ross. Well, yeah, that is one of our core principles as
we are taking a look at the new proposed definition. Rather
than just trying to fix around the margins, we started over. So
we tried to get to very simple, a simple number of categories
of what is in and then a very clear definition of what is out.
And the number one exception is, if it is not in, it is out.
So simplicity, clarity, certainty are some of the hallmarks
of what we are going after. There are some questions about, you
know, how we use the typical year construct for determining
jurisdiction over adjacent wetlands. You got a lot of good
public comments on that that we are taking into account. We are
working with our legal and scientific and policy teams to take
a look at that. So we have got a little bit of work to do
before we finalize it.
But certainty, clarity is our hallmark in this space.
Perfection is a lofty goal, but our, you know, improving and
answering this once and for all so that we have certainty so
that the courts stop changing the goalpost and we actually have
a Federal rule that we can implement, that we know--as Justice
Kennedy said in a concurring opinion in 2016, you know, that he
was concerned about the ominous reach of the Clean Water Act.
We should not have Supreme Court Justices saying that in
concurring opinions.
Mr. Woodall. I appreciate your pointing that out. I am
perfectly prepared to disagree with the administration about
line item after line item after line item, but I am also
prepared to disagree with the courts along those lines.
Our job is to write those laws. Your job is to implement
those laws. And the Court's role has been overblown in recent
years, and I blame the Congress for many of those failures.
Madam Chair, could I ask unanimous consent that we put in
the record the court case that I have referenced out of the
Southern District of Georgia? It is State of Georgia v.
Wheeler.
Mrs. Napolitano. So ordered.
[The information follows:]
State of Georgia, et al. v. Andrew R. Wheeler, et al., No. 2:15-cv-
00079 (S.D. Ga.), Submitted for the Record by Hon. Rob Woodall
[The 84-page order granting summary judgment is retained in
committee files.]
In the United States District Court
for the Southern District of Georgia
Brunswick Division
__________
No. 2:15-cv-00079
State of Georgia, et al., Plaintiffs
v.
Andrew R. Wheeler, in his official capacity as Acting Administrator,
U.S. Environmental Protection Agency, et al., Defendants
__________
Mr. Woodall. Thank you, Madam Chair.
I regret that you are not going to be here after the second
panel testifies because I suspect we are going to hear some
concerns that you have very rapid responses to and the timing
won't be there, but I would tell you that, as I see your
narrowing the scope of the enforcement responsibilities to
comply within the four corners of the law, I expect you to be
able to do a better job with equal resources or more resources
as you narrow that focus on which the Agency is targeting. And
I would call that targeting an effort to serve my constituency
even better and hold the Nation to a higher standard on clean
water generally.
Is that, as you have seen it from the inside looking out,
is that a fair characterization? I reject the notion that
anybody is dismantling anything. It seems to me, from the
outside looking in, that you are trying to target, focus, and
do better at what we all have tasked you with doing.
Mr. Ross. That is our theory, that, you know, we focus on
the waters that matter. The way the construct of the Clean
Water Act, it is actually a well-written statute generally,
other than maybe one definition that could have used some
additional clarity, but the overall construct for the Nation's
waters versus the navigable waters, the Federal Government
protects the core navigable waters and the States have
sufficient and are provided resources by Congress to help do
other waters in the watershed. And it is a partnership between
the States and Federal Government. We recognize that.
Mr. Woodall. I thank you for your service to the country. I
thank you for being here today.
I yield back, Madam Chair.
Mrs. Napolitano. Thank you, Mr. Woodall.
Mr. Ross, I want to make sure we heard you correctly. Did
you say you don't have the responsibility for the Safe Drinking
Water Act? Can you provide--to Mr. Carbajal, for the record,
and to this committee--how you propose appropriate use of
fracking wastewater when the Drinking Water Act prohibits the
disclosure of fracking chemicals?
Mr. Ross. Yeah, of course. Thank you for the opportunity to
clarify, Chairwoman.
Of course, I have jurisdiction over the Safe Drinking Water
Act. In fact, that is where I spend most of my time, you know,
particularly with lead and copper and emerging contaminants in
this country.
The point I was trying to get at is, you know, regulating
the identification of chemicals in frack water, I just, I will
be honest with you, I don't know which program office has
jurisdiction. It might be mine. So that was what I was trying
to get at.
But, more importantly, in fracking and produced water, my
job, I serve as a cochair of the Drought Resilience Federal
Partnership. And I learned we have drought in this country in
areas like New Mexico and Oklahoma and the Permian Basin and
Texas.
Mrs. Napolitano. And California.
Mr. Ross. And so that also happens to be where we have a
lot of produced water. So it is our responsibility, our
obligation, rather than locking that resource into a ground,
into the ground and deep water injection and never using it, is
to take a look at water use for the drought-starved portions of
the country. That is really my focus.
Mrs. Napolitano. How can you do that without knowing what
the chemical components are?
Mr. Ross. That is why I was mentioning the Fit For Purpose
reuse. There is a Fit For Purpose technology-based assessment
that will go into, as we look at reusing produced water; for
example, augmentation versus surface water flows for aquatic
life.
Mrs. Napolitano. We are talking about fracking water.
Mr. Ross. But that water, when it comes up, before it gets
reused for whatever purpose you are talking about reusing it
for, we will take a look at the end use. Is it irrigation? You
will take a look at what are the chemical constituents in it.
So that is what we mean by Fit For Purpose. You will take a
look at what is in it before you use it.
Mrs. Napolitano. Well, hopefully, we will be able to get a
very clear definition because I understand that the industry
will not allow to disclose what components they have, what
chemicals they have in that water.
Mr. Delgado, you have the floor.
Mr. Delgado. Thank you, Chairwoman.
Thank you, Mr. Ross, for being here. You just testified
that you spend most of your time dealing with the Safe Drinking
Water Act, and you also referenced emerging contaminants. I
want to focus the questioning in this arena.
You testified earlier that PFOS, PFOAs are a risk to human
health, correct?
Mr. Ross. Correct.
Mr. Delgado. And these risks would include things like
autoimmune disorders, cancer, kidney disease, thyroid
conditions, correct?
Mr. Ross. Yeah, so for the chemicals that we have the
toxicological profiles on, yes, those are some of the health
concerns that we have identified.
Mr. Delgado. You would agree those are very serious
conditions?
Mr. Ross. Yeah, to the people who are exposed, yes.
Mr. Delgado. And you would agree we should take some pretty
important critical steps to get in front of those conditions?
Mr. Ross. That is why we have developed the national action
plan to get out in front and answer the scientific questions
where we don't know the answers and to begin the process to
grapple with the chemicals that we do know about.
Mr. Delgado. And on that plan, do you intend to issue a
maximum contaminant level?
Mr. Ross. The process that I have to follow is the safe
drinking water process established by Congress in 1996, and it
is a multiple-step process. The first step in that process is
to issue a regulatory determination. We have committed to doing
that by the end of the year, and the teams are on pace to do
that.
Mr. Delgado. I don't know if I heard an answer to my
question. My question was, when you issue the plan, do you
intend to detail an MCL?
Mr. Ross. If I say right now we intend to do an MCL, then I
have determined the outcome of the rulemaking. And I will be
challenged in not having an open mind. So I am following the
safe drinking water process that Congress established for me.
The first step in that process is that we do the regulatory
determination.
Mr. Delgado. Do you think that there can be a scenario
where you complete that plan and that plan is viable and has
merit in the absence of an MCL?
Mr. Ross. In the absence--I guess I----
Mr. Delgado. You are suggesting that you can go through
this whole process and ultimately not land on an MCL.
Mr. Ross. That is the process that Congress established for
us. What I am saying is we go through the process. We rely----
Mr. Delgado. I am sorry. When you say the process that
Congress has established is you can go through this exercise
and ultimately conclude we are not in a position to state what
the maximum contaminant level is?
Mr. Ross. So the Agency has done multiple regulatory
determinations for a variety of chemicals over the years. When
they move forward with the determination as a positive
regulatory determination--meaning that there is an occurrence
at a level that we can see, there are health effects at levels
we are concerned about, and there is something that the Federal
Government can do about it to regulate the three primary core
considerations we do in the Safe Drinking Water Act--then you
move into the next step of the process, which is to go out to
our advisory boards for public comment, find out whether or not
we have made that first determination correctly, and if you
make the determination at the back end of that that, yes, we
have the ability to answer all those questions and move forward
with an MCL, we do.
Mr. Delgado. So let me stop you there.
So that is a very elongated process you just laid out,
correct?
Mr. Ross. Yes.
Mr. Delgado. You have acknowledged earlier that there are
some serious risks, health effects, right?
Mr. Ross. Yes.
Mr. Delgado. We know this to be the case. The science says
that as much, correct?
Mr. Ross. Yes.
Mr. Delgado. So what I am trying to get my mind wrapped
around is, how is it from your vantage point that what you have
just detailed actually reflects the mission of the EPA, which
is to protect human health?
Mr. Ross. Because that is the statute that Congress gave
me. I have to follow the law.
Mr. Delgado. What I am trying to understand is: Let's say
you follow law, as you very well should, and you are telling me
that the law is telling you there can be a scenario whereby you
do all of this research, you go through all these advisory
boards, you do all of this effort, meanwhile parents are losing
their lives, as some of my constituents have had to endure,
mothers are giving birth to newborns with increased levels of
exposure to these contaminants. You are telling me that we will
sit and we will wait and we will wait.
Meanwhile, States--States like New York--are issuing
maximum contaminant levels for certain PFOA chemicals. So you
are seeing all these other actors move in one direction to get
out in front of this problem, and you want folks all across
this country to continue to wait and wait and wait on the off
chance potentially that maybe we will get to a point where we
just might have enough information to issue an MCL.
Is that what you are telling me?
Mr. Ross. No.
Mr. Delgado. What are you telling me?
Mr. Ross. There are other parameters that--like groundwater
cleanup standards. So where we see that we have exposure,
particularly in the airfields, you can deal with the
groundwater cleanup and put treatment techniques in on the
water supply. And so we are working with the States and the
local governments and our Federal partners to do that.
We are also moving forward with----
Mr. Delgado. I want to focus on the MCL. The MCL, we have
to be able to set a maximum contaminant level for public water.
You spend most of your time in the safe drinking water area.
This is what you do. You articulated this now. So what I am
trying to understand is, where is the focus on getting to a
point where we can assure the public we know the maximum
contaminant level of something that we know causes cancer,
thyroid diseases, autoimmune disorders? We know this. The
science says so. Act like it. Why aren't we acting like it?
Mr. Ross. We are acting like it. We committed to do----
Mr. Delgado. You are not. You are telling me you got 18
different steps to go through before you can do anything.
Mr. Ross. That is the process that you, Congress, gave me
to follow.
Mr. Delgado. But you are not even saying, sir, you are not
even saying: OK. Be patient. We will give it to you.
You can't even say that. What you are saying is: Wait. Give
us some time. But I can't guarantee you we are giving you
anything.
Mr. Ross. As a Federal regulator, if I tell you the outcome
of my regulatory process----
Mr. Delgado. I am not asking for the limit. I am not asking
for you to define for me what the limit is. I am asking you to
commit to the fact that you will do everything in your power to
land on an MCL that the public can rely upon.
Mr. Ross. That is exactly what we have committed to do. We
have committed to begin the process----
Mr. Delgado. Then just say so. Then just say we will commit
to providing an MCL.
Mr. Ross. You are asking me to presume----
Mr. Delgado. Yes or no, will you commit to the public that
you will rely on the science for as long as it takes? Let's
just take it off the table. At some point, at some point, you
will provide an MCL.
Mr. Ross. I will rely on the scientists. I rely on the
scientists every single day, and they are the ones----
Mr. Delgado. I am done. Thank you.
Mr. Ross [continuing]. This process.
Mrs. Napolitano. Thank you, Mr. Delgado
Mr. Babin, you have the floor.
Dr. Babin. If you would like to continue explaining about
the science, I would like to hear what you have to say, Mr.
Administrator.
Mr. Ross. Yes. So thank you for that question.
So the process of establishing the MCL requires us to take
a look at all available science. We take a look at the
occurrence data. What we have for PFOA and PFOS suggests that,
in about 2 percent of our drinking water systems, the State of
Michigan has gone through and analyzed all of their water
systems. Several other States are starting to develop MCLs
because they have the authority under State law.
The way the system is designed by Congress is we have a
process that we go through, and if the States have the
authority to move quicker and have concerns for the local
citizen, they have the ability to do that, and the States are
doing that. That is the way the system is designed.
But what I have done is always taken into account, in fact,
on the MCL and on taking a look at the toxicological profiles,
we have amazing scientists in the Office of Science and
Technology and the Office of Research and Development. They are
the ones telling us what the occurrence data is, what the
health effects are, what we need to do from a toxicological
profile, and they are leading the charge. Our job is to give
them the resources to do their jobs, and that is exactly what
we are doing.
Dr. Babin. OK. Thank you very much.
I have the privilege of representing southeast Texas, which
is an area that serves as a major gateway for the U.S. trade
and is home to some of the country's most significant
infrastructure, including one of the busiest ports in the
country, and that is the Port of Houston. It is an essential
piece of our Nation's thriving economy and really the hub of
our energy industry. Oil and gas sectors continue to be leading
the world, in addition to continuing to improve our air quality
over the years.
As you know, the EPA's recently proposed rule to section
401 of the CWA has the opportunity to play a significant role
in expediting the review process for infrastructure projects,
while simultaneously maintaining and promoting strong
environmental practices. This new proposal will provide greater
clarity and regulatory certainty for our country's water
quality certification process.
Some on the left are saying that this administration is
guilty of a double standard when it comes to States' rights,
particularly as it relates to section 401, the State
certifications under the Clean Water Act.
Is the EPA trying to limit States' rights when it comes to
protecting water quality under the 401 certification process?
Mr. Ross. No, definitely not. I have worked for a couple of
States. I believe fundamentally in State rights. Our overall
portfolio is to protect and respect State rights. In this
particular circumstance, the 401 provision is older than I am.
It is actually older than the Clean Water Act the way EPA's
regulations have been adopted. It is time to modernize it.
Right now, the courts are beginning to answer questions for us
that the Agency should be providing in modern, up-to-date
regulations. We are working through the process right now, but,
no, we are not restricting State rights.
Dr. Babin. OK. And isn't it true that some States have
interpreted the language in section 401 as allowing them to use
that certification authority to impose requirements that go
beyond water quality-related requirements, thereby essentially
turning the 401 process into another broad environmental review
process like under NEPA?
Mr. Ross. I do believe that the 401 process is a water
quality certification. That is what the statute says. So we
should be looking at the water quality impacts of the
discharges associated with the Federal permits that the States
then get to weigh in and determine whether or not the Federal
permit also satisfies their water quality standards within
their State.
So it is a water quality provision. That is what we have
said in our proposal, and we will look forward to hearing the
comments from our stakeholders.
Dr. Babin. Well, and under that, aren't such States that go
beyond water quality-related requirements under the 401 process
essentially and effectively using the section 401 certification
process as a weapon of such to delay infrastructure and other
projects at the expense of significant regional and national
benefits, including increased energy security, energy
reliability, economic development, and job creation?
Mr. Ross. Well, we are aware of delays in certain
infrastructure and energy-related developments, particularly
because Congress basically said the States have a year, up to 1
year to do the certification. The way the system has been
developed is someone submits an application. If they don't get
it done in a year, they send it back, resubmit, send it back,
resubmit. And it could take 4 or 5 years to go through this
process that Congress clearly said there is a year to do.
So one of the things that we are trying to fix is provide
clarity and certainty around the 1-year provision.
Dr. Babin. Thank you.
Madam Chair, I will yield back.
Mrs. Napolitano. Thank you, Mr. Babin.
Mr. Malinowski, you have the floor.
Mr. Malinowski. Thank you, Madam Chairman.
Mr. Ross, we have obviously made a lot of progress as a
country since the days of burning rivers, but in its most
recent report to Congress, EPA reported that more than 50
percent of the rivers and streams it assessed are impaired;
nearly 80 percent of bays and estuaries; 91 percent of ocean
and New York coastal waters; and 100 percent of Great Lakes
open waters.
Would you agree that it is important to get those numbers
down?
Mr. Ross. Absolutely. The Clean Water Act has been very,
very successful, but there is certainly a lot more work the
States and the Federal Government need to do.
Mr. Malinowski. Can you name a single major initiative that
this administration has taken on the regulatory front that has,
as it is expected, significantly reduced those numbers?
Mr. Ross. Well, yeah, since 2017, we have approved 5,000
total maximum daily loads. We have approved about 240 water
quality standards, including reducing the backlog that the
Agency failed to act on that the States submit, so, therefore,
improving water quality through those States. We have decreased
the backlog and have approved several hundred NPDES permits
that the Federal Government regulates. I have developed a new
water quality training policy. We have developed aluminum
criteria. We have developed some aluminum criteria in
California. And I could go on and on. So we have taken several
major initiatives.
Mr. Malinowski. Well, I am seeing over 80 environmental
rules weakened or in the process of being weakened. Waters of
the U.S. we have talked about, rules regulating toxic
discharge, including mercury, from powerplants. We have talked
about the blending proposal, which may allow untreated sewage
into our rivers and streams. We have talked about section 401.
How are any of these steps intended to or likely to have the
effect of significantly altering the numbers that I just read?
I am motivated by that kind of thing.
Mr. Ross. What is not being reported is the amazing work of
the Office of Water and the Agency and the regional offices
every single day. What gets reported is a few of the big-ticket
issues. Ninety-five percent of the Agency continues to go on
and performs its mission. There are a few big-ticket issues we
are grappling with like the definition of WOTUS that I am
trying to restore the rule of law associated with.
So I would love to spend some time educating you about the
portfolio of the Office of Water because----
Mr. Malinowski. I am trying to get a motivation here, you
know, sir. You said a couple of times, in fact, at one point in
this hearing that you have two clear principles that guide your
work. One of them, something to do with not moving goalposts.
The second was investment certainty. And I agree with both of
those goals.
But I was really struck. You are with the EPA. You are in
charge of clean water. Why wasn't the first principle
protecting the health and safety of the American people? You
have had several opportunities to come to us and to demonstrate
that the first thing you think about when you wake up in the
morning is protecting our kids and yet what you keep coming
back to is investor certainty, rule of law.
Do you work for the Commerce Department, sir?
Mr. Ross. Of course, I don't.
Mr. Malinowski. Do you work for the Justice Department?
Mr. Ross. In my opening statement, I actually focused on
big-ticket, water infrastructure, water reuse, you know,
working for the water sector, and concerns about our workforce.
So, every single day, I care about and work for--I got into
this--we went into this business because you care about the
environment. That was one answer to one question. And, of
course, I have multiple core principles.
Mr. Malinowski. It was several answers to the question.
You keep on coming back to the rule of law. So let me ask
you about that. In the President's Executive order on defining
the scope of clean water protections, he directed the EPA and
the Corps to develop a rule that relies on a plurality opinion
by Justice Scalia in a case about 13 years ago--I think it was
Rapanos v. the U.S.--as the sole basis of asserting these
protections.
Do you recall how many Justices on the Court supported that
plurality opinion?
Mr. Ross. One, the Executive order said we should be
informed by but we are not bound by. So the other thing is, on
that opinion, there were three Justices that joined Justice
Scalia. So that is four. Justice Kennedy actually concurred.
What people forget about is that Justice Kennedy joined Scalia
to overturn the overreach of the Federal action in that case.
Mr. Malinowski. Well, five Justices opposed the Scalia
opinion. And we are talking about the rule of law here based on
a plurality opinion that no court in the 13 years since has
said should be binding on anyone or anything. So I don't think
that your constant references to the rule of law are
particularly convincing.
The role of the EPA, I have some sense of what your role
is. You are not the agency in the U.S. Government that is
supposed to be fundamentally concerned with investor
protection. There are other agencies that have that very
legitimate purpose. Your job is to be sitting in there,
arguing, often as the lonely voice in the Federal Government,
for people. And I have not heard a lot of that ethos expressed
here today.
Thank you. I yield back.
Mrs. Napolitano. Thank you, Mr. Malinowski.
Next, we have Miss Gonzalez-Colon. You have the floor.
Miss Gonzalez-Colon. Thank you, Madam Chair.
Mr. Ross, would you like to have additional time to respond
to the previous question?
Mr. Ross. Yeah, you know, the allegation that we are not
concerned about the environment is just fundamentally false. It
is a nice talking point.
If you are talking about investment certainty, one of the
most important things that Congress and the EPA has done over
the years is to work with our infrastructure, upgrade our
drinking water systems and our wastewater systems. Those are
multiple, hundreds of millions or tens of millions of dollars
of investment. If facilities and cities and States go through
asset management planning, and they have 10-, 15-, 20-, 40-year
parameters and they are thinking about how to use their
taxpayer money before raising rates for the individual
taxpayer, you have to have rules of the game that they
understand so they can do their asset management planning, so
they can figure out whether or not to spend money on drinking
water, stormwater, wastewater, whatever it is. So, if you keep
changing the rules of the game, how are cities and States
supposed to plan their affairs accordingly?
And so we think about environmental protection every single
day, and so I understand this role is to take some of those
comments, but I am very, very, very thrilled and pleased with
the work of the Office of Water. The career employees are
fantastic. I work for them every day, and I see their passion
every day.
Miss Gonzalez-Colon. I am going to piggyback on that. One
of these complaints we receive about the program is the
regulatory patchwork based solely upon the geographic part you
are. With the revision again back to 2015, regulations that are
currently in more than half of the States, how long will it
take for States and Territories to actually adopt the same
standards?
Mr. Ross. I am sorry. There was some noise over here. I
couldn't hear the last part of that question.
Miss Gonzalez-Colon. Yeah, I mean, with the revision back
to pre-2015 standards, regulations that are currently in half
of the States, how long will it take for States and Territories
to actually get the regulatory standards, everybody on the same
page?
Mr. Ross. Well, so that is the, I guess, the curse of
litigation. So there is a 60-day implementation period. We
finished step 1. It will take 60 days before it becomes
effective, which theoretically that would restore the common
operating platform across all 50 States.
You know, if it is litigated, it is possible that
litigation will shut it down in some or portions of the
country. And so this story, I believe, will probably continue.
We are doing our best. We are controlling what we can. And our
litigators, it is a defensible rule. That is why we spent so
much time doing it. I know there was concern about we were not
moving fast enough, but we moved as quickly as we could so that
we could make it defensible, so when that went through the
litigation, it will defend it.
So the story is not done, but we have done what we can to
restore certainty while we develop our second step 2 rule,
which we will finish this winter.
Miss Gonzalez-Colon. I really appreciate you highlighting
the importance of the role of the Clean Water and Drinking
Water State Revolving Fund in order to reduce water pollution
and public health threats because, in the case of Puerto Rico,
after 2016, we are not able to pay our loans, and, finally, in
August of this year, we actually got through the restoration of
the $571 million in principal with that revolving fund, and
that will help us out in some of the cleanups that you just
mandate.
As a matter of fact, you asked for sewer repairs in Puerto
Rico--Manati, San German. And we are very glad that, for the
first time in many years, the regional director, Mr. Pete Lopez
from New York, has been helping Puerto Rico out. So thank you
for that.
I yield back.
Mr. Ross. Pete Lopez is passionate about Puerto Rico, and I
can tell you restoring the SRF, our office director, Andrew
Sawyer, has invested huge investment of his time and resources
to get that back up and running. When we made that
announcement, that was a really great day.
Miss Gonzalez-Colon. I will just add to this. Every time we
call him--and we do have several situations in Puerto Rico
after the hurricane--and I need to say the EPA has been there
every time we have been asking for and helping the State to
manage many of those incidents regarding, not just water, but
97 percent of the drinking water in Puerto Rico is provided by
Puerto Rico Water Authority, which is State-owned basically. So
thank you for that assistance and my congrats to Mr. Pete
Lopez.
I yield back.
Mr. Rouda [presiding]. Thank you. The Chair now recognizes
Representative Pappas.
Mr. Pappas. Thank you very much, Mr. Chair.
And, Mr. Ross, thanks for being with us today.
I want to build off some of the comments of my colleague,
Mr. Delgado, because the folks of New Hampshire's First
Congressional District are experiencing PFAS contamination at
the same levels of the residents of his district. This is
beyond an emerging contaminant in my State. It has emerged. It
is impacting the health of individuals, and we need to demand
more from the EPA.
I am frustrated as well that we don't have the same level
of urgency in our Federal Government that we do from State
officeholders in New Hampshire. Our State recently set new
aggressive levels for PFAS in drinking water. Other States have
done that as well. We need a Federal solution on this because
States don't necessarily have the expertise at their
fingerprints, the capacity to be able to do this.
We need a standard across the country that is going to
protect public health and drinking water, and I understand that
there is a process, but we want you to share the urgency that
people who have been exposed to PFAS contamination have.
Mr. Ross. You have my commitment. We share the urgency. I
know, for the people who are exposed and the communities, that
is unsatisfying for me to say that, but I can tell you based on
the career team, the scientists, and the regulators that we
have working on it, they have an urgency. They are working on
it holistically, not just from the drinking water program, but
in our Office of Land and Emergency Management and our TSCA
program. It is an agencywide initiative. It is a core principle
of Administrator Wheeler to push forward on PFOS, and we are
doing everything we can as quickly as we can. We understand
there is frustration that sometimes the Federal bureaucracy
is--you know, part of the Safe Drinking Water Act, for example,
was established to make sure that we engage with our
stakeholders, engage with our scientists and our advisory
boards. But I understand that, if we go through that process,
the outside world and some of the people who are affected may
believe that it is not going fast enough, and I acknowledge
that.
Mr. Pappas. We are counting on you to get something done. I
was recently at Pease Air Force Base in Portsmouth. The Air
Force has financed a treatment system for groundwater there.
They have levels that are hundreds of thousands of parts per
trillion, far exceeding the 70 parts per trillion prevailing
health advisory by the EPA and far exceeding the new standards
that New Hampshire released. They told me it is going to take,
if not decades, centuries perhaps to treat all the groundwater
in that area so that it is safe to drink. So we are talking
about a problem, when you look across the country, just on
military bases, that is quite significant.
I am wondering if we could shift to industrial pollution
sites. I don't know if you are aware of how many active
industrial polluters there are, facilities that are discharging
PFAS into lakes and rivers.
Mr. Ross. Well, I don't have the data in front of me, but
my team actually, we are putting together an Effluent
Limitations Guidelines Plan. We do that every couple of years.
That is out. We have got four or five pages dedicated to this,
and we are beginning to take a look at the various forms of
dischargers and based on the sectors of the economy in which
they operate, and so the Agency, as part of our PFAS action
plan, we are looking at that.
Mr. Pappas. So experts estimate there are about 500,000
active industrial facilities that are discharging PFAS into
lakes and rivers and bodies of water in this country. That is a
serious concern. And I am wondering if you could just confirm
that you believe that there should be limits on PFAS discharge
from such sites.
Mr. Ross. Well, so we have a couple of facilities, for
example, in West Virginia and North Carolina, that are subject
to discharge limits. They are the manufacturers.
We are taking a look at what other sectors would we have
the authority to regulate and do we have the ability to
regulate, and that is part of our Effluent Limitations
Guidelines Plan. So we are taking a look at it. That plan will
be coming out fairly soon, but in the action plan, it is one of
the things that we took a look at over the next couple of
years. Obviously, to regulate it all the time, you have to have
the science. You have to have the data. And so we are going to
focus in on the higher priority areas.
Mr. Pappas. Fairly soon. Can you narrow that down for us?
Mr. Ross. Actually, I don't have the details in my--at my
fingertips. I can get back to you on that, but I know I have
signed off on the last, on the Effluent Limitations Guidelines
Plan. It is going through the publication process. Quite
frankly, where in that process, I just don't have the answer,
but I can get it for you.
Mr. Pappas. Well, the way we can really protect public
health from the threat PFAS poses is to first stop the
contamination, stop the situation from getting worse, ensure
that there is treatment of groundwater, that people have access
to safe drinking water, and then work at making sure that we
get these chemicals off the market. They are called forever
chemicals for a reason. They stick around in the environment
for a long, long time. And they have been linked to serious
chronic health conditions, from cancer to thyroid issues.
We have got to make sure we are doing more on this. This is
going to be found all across the country when we test for it,
and we need our EPA to be on the front lines of this with up-
to-date science, working hard with that sense of urgency to
protect the public.
Mr. Ross. Yeah, you have made the argument for why this
is--why we developed a holistic action plan, and the core
component and our primary focus--well, I shouldn't say our
primary. That is the wrong word. One of our main focuses is on
closing the scientific gap. So there is a huge amount of work
happening in the Office of Research and Development and with
our Federal partners on how to close the scientific information
gap. You know, and we are also working on trying to figure out
ways to identify more chemicals in basically environmental
media, and so all of that is happening as part of our action
plan. And if we are just laser focused on one issue, we would
ignore the holistic picture.
Mr. Pappas. Thank you.
I yield back.
Mr. Rouda. Thank you, Mr. Pappas.
The Chair now recognizes Representative Gibbs for 5 minutes
of questioning.
Mr. Gibbs. Thank you, Chair.
Thank you, Mr. Ross, for being here today. And thank you
for all the work you do to protect our environment. When I was
chair of this committee for 6 years, this subcommittee, I
always said during the WOTUS discussion that the Clean Water
Act was passed in 1972 to be a partnership between the Federal
Government and State governments, and the State governments are
responsible for the implementation and enforcement of the Clean
Water Act under the guidance of the Federal Government.
Is that a true statement?
Mr. Ross. Yeah, as part of the providing authority for the
States that run the program, they have to be able to enforce
the law.
Mr. Gibbs. And they do send reports frequently or timely or
are required to?
Mr. Ross. Yeah, we report on our performance. In fact, I
used to run a--the environmental protection unit was
responsible for enforcement in the State. So I actually have
firsthand knowledge on that.
Mr. Gibbs. One my concerns has always been, during the
Obama administration, on their waters of the United States
proposal, implementation, that they tried to do was that one
size fits all--you know, you could expand this map, include all
the things under Federal jurisdiction. I always made the
argument that, you know, we could actually go backwards and the
progress we made in point source and nonpoint source pollution,
and the reason I say we go backwards is because, at some point,
you know, businesses, farmers, they all want to--most people,
everybody wants to do the right thing. OK? But when you layer
on so much redtape and bureaucracy, at some point, they are
going to just throw their hands up in the air and only going to
do what they need to do to get by and may not go the extra
mile.
Do you think that is a true statement, too, that that is a
possibility?
Mr. Ross. Well, I know there is frustration in the
regulated community. My experience is that, at base, people
will do the right thing to protect the environment, but I do
sense the frustration if the goalposts keep moving. And so it
is----
Mr. Gibbs. Well, you know, as a former hog farmer, you
know, it was illegal for me to go out and dump hog manure in
the ditch or whatever, even though it was in the Federal
waterway. And so there has been lots of editorials recently,
because I just saw the move by the Trump administration on this
issue, that the editorials actually come out and say that this
opens up the door for businesses to pollute because the Feds
aren't regulating this. And, as you and I both know, that is
not true. If it is illegal for me to do that, the States are
doing that.
And my point is, when the Feds open this up to a one size
fits all out of Washington, DC, what the issue comes about is
it creates more confusion, more redtape, and the States
wouldn't do as much as they might have done because they think
the Feds are going to do it, and we actually go backwards. And
I have held that opinion, and I think it is absolutely true.
So I am glad to see the Trump administration is moving
forward with common sense to really implement what the Clean
Water Act's purpose really was, and Justice Scalia's in the
Rapanos decision kind of stated that Federal jurisdiction
should be waters, that waters can't be there intermittently,
meaning that exempts road ditches from the Federal aspect but
not the State aspect, and there has to be some type of
features. I think he meant streambanks, if I interpret that
correctly.
So I just want to make the point here that all waters are
being regulated, and small streams, road ditches, and all that
kind of stuff, it is better regulated at the local level, the
State level because they have a better hands-on than a one-
size-fits-all Washington, DC. In your position now, would you
concur that is kind of the way it should work? I mean, it works
better that way.
Mr. Ross. That is the way Congress set it up. That is the
structure of the Clean Water Act, is to focus on the core
waters under Federal jurisdiction and to provide resources to
the States and allow the States to regulate that which they
think is more local.
Mr. Gibbs. I do want to mention quickly the President
signed the integrated planning legislation here in January that
I sponsored. Can you give us a quick update what is happening
with that? Is the EPA reaching out to communities that are
under enforcement actions to make them aware of opportunities
that are out there to try to get to where they want to get to?
Where are we in integrated planning?
Mr. Ross. Let me thank you for the legislation.
This country really does need to focus on integrated
planning. Whether that is stormwater, wastewater, drinking
water, it all comes back to the same ratepayer, the same
taxpayer. And so if you truly understand local asset management
planning, integrated planning has to be part of the
conversation. So we are robustly embracing integrated planning.
It comes up quite a bit in the combined sewer overflow context,
and we are working with the Department of Justice and our
regulated community to provide additional flexibility to make
sure that, for example, if someone, rather than investing $1
billion in a pipe in a ground, they can do $600 million--I am
just making this up--in green infrastructure and get stormwater
management benefits and green space and the environmental
benefits of the green infrastructure. We should embrace that,
and I think we are.
Mr. Gibbs. OK. That stormwater, our sanitary system, right?
Mr. Ross. Well, in fact, that is one of the reasons I
actually included stormwater in the Water Reuse Action Plan
that we dropped last week. Is it reuse? It is an interesting
question, but it is certainly a source of water that we should
be looking at as a new form of water if we handle it and manage
it and treat it correctly.
Mr. Gibbs. I thank you. I am out of time.
I yield back.
Mr. Rouda. Thank you, Mr. Gibbs.
The Chair now recognizes Congresswoman Fletcher for 5
minutes of questioning.
Mrs. Fletcher. Thank you, Mr. Chairman.
And thank you, Mr. Ross, for being here today.
I represent the Seventh Congressional District of Texas in
Houston, and we are no strangers to pollution when it comes to
our waterways. Just this year, we had a major incident when a
chemical fire at the Intercontinental Terminals Company raged
so uncontrollably that a containment dike failed, spilling
countless chemicals into the Houston Ship Channel and, the
evidence suggests, all the way into Galveston Bay.
And this hasn't been the only chemical spill that we have
seen recently. In 2014, as you know, a chemical storage
facility in West Virginia released an estimated 10,000 gallons
of coal-processing chemicals upstream of a drinking water
intake pipe that left more than 300,000 residents without
drinking water for more than a week.
Despite these events and the general risk associated with
them, the Trump administration EPA recommended no new
requirements under the Clean Water Act to prevent the release
of hazardous substances or to require public notification. And
earlier this month, EPA reversed its 2016 decision to issue new
rules to safeguard against the release of hazardous substances
into local water bodies and drinking water sources.
I would like to know why the determination that it wasn't
necessary to look at the hazardous substances earlier this
month, why that took place, and what data led your Agency to
make that determination.
Mr. Ross. Well, so that is actually a rulemaking that is
out of our Office of Land and Emergency Management. So they ran
the rulemaking. So I can't speak to the specific detail in the
decisionmaking. I am aware that they did take a look at some of
the former chemical spills and took a look at the scope of
authority that the agencies have, for example, under my program
and NPDES permitting or under the enforcement program to go
after those spills.
They took a look at nine common areas and decided that,
based on the scope of our existing authorities, they have the
ability to manage it, but, as far as specific decisionmaking,
that is not my program, and I really should--I would have to
defer to Peter Wright, who is the Assistant Administrator of
that office.
Mrs. Fletcher. Well, you would agree with me, would you
not, that the public has the right to know when their water has
been contaminated by chemicals or compromised by chemical
release?
Mr. Ross. Yeah. And we have the Community Right-to-Know,
lots of notifications, the State has notification requirements.
And so a lot of the notification is built into our existing
systems.
Mrs. Fletcher. So how many spills have there been since the
Charleston incident that have been severe enough to contaminate
local water sources?
Mr. Ross. I don't have that data.
Mrs. Fletcher. It is my understanding that there have been
approximately 600 chemical spills in the last 3 years. Have you
heard that number?
Mr. Ross. No, that is not my program, so I haven't focused
on that specific data.
Mrs. Fletcher. OK. Do you agree with me that it is
important, if there have been--let's just assume that that
number is correct, there were 600 spills in the last 3 years--
do you agree with me that additional measures to reduce or
eliminate chemical spills would be an important thing to
protect public drinking water?
Mr. Ross. I would have to take a look at the causes of the
spill, the response action, and things like that. So I can't
speculate.
Mrs. Fletcher. Do you know whether the existing EPA
programs have caught or been able to identify those chemical
spills through the programs that you previously described?
Mr. Ross. Again, that would be for another office to answer
those questions. And I am happy to take those back, those
questions for the record.
Mrs. Fletcher. Yeah. I think it would be helpful to get
answers to those questions. Certainly, some of my colleagues
have talked about concerns that residents have about PFAS
chemicals, PFOA. That is certainly true in Texas. We are
attuned to that as well. And I think that what we are concerned
about is accountability and making sure that we have the
information.
As you know, the ITC chemical fire raised serious concerns
about our air quality but also water quality, and that has a
lasting impact. And so we have heightened awareness about the
potential risk of chemicals in our water and request that you
get that information back to us so that we can take the
appropriate action to make sure that public drinking water is
safe and that public health is prioritized.
And with that, I will yield back.
Mr. Rouda. Thank you, Representative Fletcher.
The Chair now recognizes Representative Massie for 5
minutes of questioning.
Mr. Massie. Thank you, Chairman.
The homebuilders in my district, the people who are
providing services to the homes, like the sewer districts, they
all understand that there has to be some regulation, and they
don't want to pollute. But the two things that I hear from them
and all of my constituents is that we need to improve clarity
and reduce disparity, because they can deal with these. These
are costs of doing business. They get passed on to the
consumer, so we should strive to minimize them while taking
care of the environment.
But the problem is, if you don't have clarity--like you
were talking about the maps, the lack of maps from prior
administrations--they are shooting in the dark. And then if
they get treated one way on one project and then they go to
another project in a different State or a different district,
they are treated another way. And these create uncertainty and
hardships, not just for those providers, but for the customers.
So, you know, the former EPA Administrator said that their
rule was based on science. Yet when I looked at the rule, there
were no units of measure, there were no numbers. Like, it was
words like moderate flow, heavy flow, intermittent. These
things need to be defined in order to improve the clarity and
reduce the disparity.
Some of my constituents--and I know some of these issues
are Army Corps issues, and maybe that is one of the problems we
have here. There are a couple of silos. But one of the
recommendations that I have heard from my district, where there
is a consent decree--they are under a consent decree that is
going to cost the sewer district, which will be passed on to
the ratepayers, hundreds of millions of dollars.
One of the questions they asked is--and this is what the
developers are asking too. All of this money that the
developers are paying in to the mitigation banks, which,
frankly, some of it goes to some dubious projects. If you go
inspect these projects, it is not clear whether they have
improved the environment or the condition of a stream or not.
And some of it just goes into buying rural land and locking it
up forever from development, which exacerbates rural poverty.
When they are trying to save the environment by buying up land
in rural counties, it creates hardships for those counties and
it takes stuff off the tax rolls.
So here is what they have recommended to me. And I said,
you know, this idea will never catch on in DC, because it makes
too much sense, common sense. Which this is what they want to
do: Take the money that the developers are paying in mitigation
fees, when they build homes for new home buyers, and use it for
the consent decree, to actually use the money, the mitigation
money, OK--ostensibly the developers are having an impact on
the environment. Instead of spending that money on projects we
are not quite sure--it is hard to prove they improve the
environment, why don't we spend it on the neediest projects,
which are these sewer overflows that are in the district.
Like, what do you think of that idea? I know it is going to
sound crazy to everybody here, because it makes sense
everywhere else, but----
Mr. Ross. Well, there is a lot to unpack there.
So from a high level, my--and, in fact, in a former
position in the State is, I believe that you should apply your
resources where you get the best economic and environmental
value and, more importantly, the environment public health
protection value. And so that is one of the reasons why we are
taking a look at updating and modernizing our mitigation
policies.
For example, in my Water Quality Trading Policy that we
developed in February, one of the six core principles is
encouraging multiuse banks. So not just for, you know, wetland
mitigation or water quality trading, but also species
conservation, so that we work with our Federal partners to take
a look at landscape scale conservation and bring multiple
sources of revenue to provide a higher level ecological lift
for whatever bank that you are talking about.
We are updating the--working with the Corps of Engineers--
we have worked really hard to break down the silos between
those Federal agencies and have a great working relationship
with them.
We are updating our compensatory mitigation rule, with the
Corps taking the lead on that. We are working with the Corps on
things like if you are taking out a check dam to try to repair
a corridor and there is a little bit of fringe habitat around
the pond behind the check dam, there was a disincentive to do
the check dam removal and repair the stream, because if you had
to compensate or offset the impact of the fringe wetland on the
pond, it may make it economically unviable. And so we are
working with the Corps to modernize those types of mitigation
policies.
So at a high level, I agree with you that we need to be
more creative in how we use our mitigation and get the best
bang for the buck.
Mr. Massie. And one of the mitigations I would recommend
that they be more flexible in granting, because it has fallen
out of favor recently, is allowing the developer to mitigate on
the property there locally. Like, what can you do to improve
things there locally where people will see the benefit, instead
of putting it into this black hole where you are not sure what
the money is being spent on? It is actually more efficient that
way, I think.
Mr. Rouda. Time has expired, but the witness can answer the
question.
Mr. Ross. Yeah, that is an historic question. You know,
back in the day, it was onsite--you know, onsite, and we found
that if you didn't have the sophistication to operate and
manage the wetland--for example, wetland mitigation going
forward--you know, 10, 15 years later, you may have had a
decline in the resource. And so there has to be some balance
between the sophistication of the entity who manages the
resource going forward. Sometimes it is a local landowner but
sometimes not.
Mr. Rouda. Thank you, Mr. Massie.
The Chair now recognizes myself for 5 minutes of
questioning.
Mr. Ross, good to have you here, again, and to hear your
testimony.
I want to point out the fact that I think clean water is a
bipartisan affair. We all want to make sure that our children
and our family and our community has access to safe drinking
water. And I also want Americans to fully understand the
challenge of PFAS in our drinking water and our food chain.
So just to help clarify, we know that PFOA and PFOS is not
being used as it has been in the past. And we even heard
testimony last week from 3M that they voluntarily stopped using
it and selling it, a highly profitable product. And the reason
they probably did that was because they recognized the
environmental impact and the potential liability, liability
that resulted in an $875 million settlement--not a judgment--
settlement with the State of Minnesota.
There are 5,000--roughly, 5,000 to 6,000 chemicals in the
PFAS family. Is it your belief that all or most of these have
health consequences?
Mr. Ross. We simply don't know, which is why our scientists
are working on developing toxicological profiles for the next
batch of chemicals and, more importantly, looking at high
throughput toxicology work that takes a look at the group of
chemicals to figure out if we can sort of weight which ones may
warrant quicker, faster study. So the short answer, we don't
know.
Mr. Rouda. But they are all in the same class. They are all
in the same class. We have studies out there, even internal 3M
studies, that show that accumulation of PFAS, whether it is
PFOA or PFOS or the full range of even short-chain compounds,
can cause negative consequences.
Are you concerned that the American public is the guinea
pig here as we determine the effect of these compounds on our
health?
Mr. Ross. Well, these chemicals have been in production
since the 1940s and are part of our everyday life, including--
--
Mr. Rouda. Literally.
Mr. Ross. Literally. Including, you know, putting out fires
and saving lives on Navy ships and at airports, and then the
medical community relies on these.
And so the challenges, as I have learned from the
toxicologists--you know, for example, on the tox work we are
doing on Gen X and PFPS, you are seeing shorter chains and--but
yet they still have adverse health effects, but they are
different health effects than the PFOA and PFOS.
And so we really--right now, the short answer is our
scientists need time to really figure this out, and that is one
of the primary goals of the Agency right now, is give our
scientists the leeway to run and develop and close the
information gap.
Mr. Rouda. So when I look at the overall concerns, you have
got a parts per trillion of 70 issued by the EPA. Clearly,
there is some scientific evidence that the EPA decided to use
that number as the benchmark, where above that is concerning
for an individual's health. So even though you haven't done the
toxicity studies on every single compound, you have drawn the
conclusion that 70 is a benchmark for all compounds, correct?
Mr. Ross. For PFOA and PFOS, those two compounds.
Mr. Rouda. OK.
Mr. Ross. And that was based on specific studies supporting
both the PFOA, P-F-O-A, and P-F-O-S.
But as far as the standards, you know, there are chemicals
that we don't know the toxicological profile for, and so we
don't know what the number would be if we would go through and
establish a health advisory. And that is the information that
we are trying to gather.
Mr. Rouda. And again, I emphasize the concern is that we
may be looking back 5, 10, 15 years from now and wondering why
this body and the EPA did not take action on a class of
chemicals that they knew were diminishing the health of
Americans, and allowing it to be dumped in rivers and allowing
it to be used on crops, to be introduced into our food chain,
and us not taking action quick enough or deep enough to address
this issue.
Are you concerned about the EPA not moving fast enough in
this regard?
Mr. Ross. Well, I will tell you, actually it is one of the
reasons, when I was talking to our drinking water program and
learning from the scientists, early last year, I didn't want to
be the person looking back 10 years from now and saying the EPA
missed it. And it is one of the reasons why we established the
leadership summit that we held, the listening sessions
throughout the country, and the development of the action plan.
It was designed specifically to make sure that we weren't
looking back 10, 15 years from now and said we missed it. And
so that was definitely in my forefront of my mind as we were
thinking about developing the action plan.
Mr. Rouda. And as that action plan comes forth and you get
the studies done, if we learn that much of the drinking water,
significant amounts of the drinking water being consumed by
Americans in everyday life is above certain levels, when you
look at the remediation that would have to take place--and
right now, the best technology to do that is reverse osmosis,
which is basically desalination--we are talking major expenses
for every single water district that is affected with high
volumes of PFAS chemicals, how do you envision us being able to
address that?
And my point really being, the sooner we address the
dissemination of those chemicals into the environment, the less
likelihood we are going to spend a hell of a lot of money on
cleanup through improved water.
Mr. Ross. Well, it is one of the things--you know, we are
actually taking a look at the technology, the treatments,
because carbon absorption actually takes care of some of the
compounds and does that actually gather additional longer chain
compounds versus shorter chain compounds. Yes, reverse osmosis
is out there. We would actually have to take a look at does
reverse osmosis cover everything.
And so, yeah, it is a very, very expensive treatment on the
back end, which is one of the reasons why we are really focused
on, you know, in the short term, where you have exposure,
particularly in groundwater near airfields, trying to get the
treatment up----
Mr. Rouda. I am going to get one last question in here,
because I am a little confused by some of the questions about
States' rights when it comes to addressing this issue. And on
the other hand, we have a President who is constantly trying to
take away California's rights in addressing environmental
issues.
Is it your testimony or your belief that States should be
the primary holders of how we manage the PFAS class of
chemicals or is that a--do you expect to have an EPA level set
for each of these?
Mr. Ross. I think we need all of the above, local, State,
and Federal Government. We all have a role to play. That is the
system that we have. And so while EPA uses its authority to
address PFAS, the States are using their authorities, and local
communities are as well. So we need an all-of-the-above
strategy. That is my position.
Mr. Rouda. OK. Thank you very much.
And I yield back.
The Chair now recognizes Mr. Garret for 5 minutes of
questions--excuse me, Mr. Graves, for 5 minutes of questioning.
Mr. Graves of Louisiana. We are so close, we are on a
first-name basis.
Mr. Rouda. That is right.
Mr. Graves of Louisiana. Thank you.
Administrator Ross, thank you for being here. Appreciate
it.
I represent south Louisiana. We have gone through the
longest period of Mississippi River at flood stage ever, ever
recorded. My point is, is that we drain from Montana to New
York to Canada, one of the largest watersheds in the world. And
the hydrology of south Louisiana is very different than
virtually anywhere else.
Do you believe that under the standard established during
the Obama administration that there was appropriate clarity for
areas like Louisiana where I could read it, and having
previously worked in a role where I dealt with regulations--in
reading it myself, I believe that I could have applied that to
virtually anywhere in south Louisiana, anywhere.
Do you believe that the clarity or the specificity in the
Obama-era definition was appropriate or do you think that it
needed more clarification and definition, especially for areas
like south Louisiana?
Mr. Ross. Well, I once had an opportunity to cohost an
hypoxia task force along the banks of Baton Rouge and learned
firsthand about the water challenges down there, and it was
extremely informative.
You know, that--one of my concerns on the last
administration's proposal is that you really didn't get the
certainty, particularly as you got away from major water bodies
and particularly because it relied on the significant nexus
test.
If you take a look at our proposed step 2 rulemaking, what
we have done is what Justice Kennedy articulated in his
concurring opinion, which is, absent more specific regulation,
he recommended a significant nexus test.
We use a significant nexus concept in the science and the
policy to drive our proposal, but then our goal is to eliminate
that case-by-case specific analysis using factors that are
really hard to grapple with and getting more to certainty and
clarity.
So the answer is yes, I think we can do better, providing
better certainty, particularly as you get away from the major
waters.
Mr. Graves of Louisiana. Administrator, I have had dozens
and dozens of meetings with just regular constituents--not
companies--just regular constituents coming to us and
expressing concern or fear over the potential jurisdiction over
their property whenever they wanted to do something with it,
putting a chill effect on folks doing things like building
homes, establishing a small business, and other implications.
A lot of the headlines that I have read over the past few
months or past few weeks, I guess, have indicated that this is
a rollback. Could you talk a little bit about data and
justification for just the jurisdictional basis of this?
Mr. Ross. Well, so the rollback for the 2015 rule, it is
about restoring the rule of law. The 2015 rule has been found
by several courts to have legal defect and has been actually
sent back by a court in Georgia and a court in Texas to the
Agency to fix it.
So, there was an expansion under the Obama rule. And by
restoring the 1986/1988 framework, there is less Federal
jurisdictional waters. The question and the problem that we
have is we don't have the datasets to be able to do a
comparative analysis. There has been a failure of the Federal
Government for decades. It is one that we are really focused
on. I reject the premise that we can't map it.
The people at USGS, the people in ORD, the people over in
NOAA, they are fantastic. You just have to give them the right
information so they can add a GIS data layer to the NHD
hydrography dataset and also the NWI. So we have the ability to
do it, but we don't have the data. And to do this comparative
analysis, we need to----
Mr. Graves of Louisiana. I would certainly love to work
with you, and don't see any reason why that would be a partisan
effort to get accuracy and clarity.
Now, shifting gears very quickly, I want to flip over to
section 401. I have met with numerous folks across the country,
Washington State, California, New York, and other areas, where
401 appears to have become weaponized, meaning that States are
using it in a manner, number one, inconsistent with what I
believe to be the 1-year timeframe to make a decision.
Is that your belief and understanding as well?
Mr. Ross. Yeah. The Congress is very clear that it said 1
year. One year means one year.
Mr. Graves of Louisiana. OK. So, secondly, this is part of
the--it is 401 of the Clean Water Act. Watching some of these
entirely irrelevant topics that States are using, or
justification that they are using, to refuse to offer the
consistency determination is fascinating to me. And, in fact,
it has actually led to environmental damages. And I will give
you an example.
As a result of preventing gas pipelines up in the
Northeast, they actually burned home heating oil and imported
gas from Vladimir Putin. Russian gas is 13 percent dirtier
emissions than U.S. gas. Home heating oil has extraordinary
emissions compared to natural gas as well. So their efforts to
protect the environment are actually damaging the environment.
Now, Washington State using things that are entirely
unrelated to clean water to stop certification, did you think
this is inappropriate?
Mr. Rouda. The time has expired, but the witness may answer
the question.
Mr. Ross. So water--if it is a water quality certification,
water quality means water quality. And I am aware of
circumstances where sometimes States lose the forest for the
trees.
Mr. Rouda. Thank you.
The Chair now recognizes Representative Lynch for 5 minutes
of questioning.
Mr. Lynch. Thank you, Mr. Chairman.
Thank you, Mr. Ross, for your willingness to testify and
help the committee with its work.
I represent Boston Harbor. I have done that for about--
well, including the State senate, for quite a few years, maybe
25 years. And we have spent billions, we have spent billions
cleaning up Boston Harbor. And I am happy to say it has been a
dramatic improvement. We see, you know, seals, porpoises, you
know, things I never saw when I was growing up there, we see
now since the cleanup of Boston Harbor, the Deer Island sewage
treatment facility. So we have made great progress there.
One of the ways that we have been able to do that is using
section 401 of the Clean Water Act, which it basically states
that a Federal agency may not issue a permit or a license to
conduct any activity that may result in any discharge into
navigable waters, Boston Harbor, unless one State or an
authorized Tribe where the discharge originates issues a
section 401 water quality certification verifying compliance
with the Clean Water Act. So we have used that as a shield to
protect Boston Harbor.
On August 8, 2019, EPA signed a proposed rule to replace
the existing water quality certification regulations under
section 401. Part of that would be to limit the State's ability
to protect its waterways.
And is that your intention?
Mr. Ross. No. Quite the contrary. We fully support the
States doing water quality certifications. And if folks would
read the proposal, they still have the ability to take a look
at water quality impacts associated with federally issued
permits. That is not----
Mr. Lynch. Yeah, but--so what you are doing, though, is in
this proposed rule, which I oppose, it limits the issues that
we can cite in refusing a water quality permit. It also limits
the time we have to get our evidence together to fight that.
As a State, we have never relinquished our ability to
protect our citizens or our natural resources. We have never
done that. There has always been a shared responsibility
between the States and the Feds. So I am just worrying if--I am
wondering and worrying, you know, do you think constitutionally
you can diminish the rights of the State to protect its
citizens or its natural resources?
Mr. Ross. My touchstone is complying with the rule of law,
and I intend to do that. We are following the law in proposing
a rule that says 1 year means 1 year, and we are not limiting
the ability of States to take into account water quality.
I have been to Boston Harbor. One of the first trips I took
in this position was to go up and take a look at our Urban
Waters Program. It is fantastic.
The section 401 modernization effort that we are going
through right now, the States will still have the ability to
take in consideration of water quality impacts.
Mr. Lynch. Not as much as they can now. Under your rule
that will diminish this. It is pretty plain the impact of this.
So I have a compressor station that they are trying to
build adjacent to Boston Harbor, a pipeline, a gas pipeline
that will definitely cause a negative impact on water quality
just because of the nature of the discharge and the work they
are doing.
Under the existing rule, the State of New York has been
able to push back under the Clean Water Act and deny licensing
to a pipeline similar to the one that I have in my port.
So I am just worried--I am very worried that your
diminishment of State power under this rule will allow this
discharge to go on under your rule, under your new proposed
rule, that would not have happened when we had the right to
protect Boston Harbor. Is that your understanding as well?
Mr. Ross. If your concern is water quality in Boston
Harbor, our rule will not impact the ability of the State to
consider water quality impacts associated with that discharge.
Mr. Lynch. Well, you keep saying that, but you are
diminishing the shield that we have to protect our navigable
waters.
In another section here, you know, we have a current
restriction on farmers who use pesticides and other fertilizers
and nutrients near waterways that are currently prohibited, but
you are expanding that ability. I mean, with all of the
problems we have had down in Florida with the algae blooms and
other impacts on tourist areas and beaches, you are allowing
that now to happen in a bigger way and restricting States'
ability to regulate that as well. You know, I find it stunning,
the scope of repeal that you are pushing forward.
Mr. Ross. Well, I respectfully disagree. So the scope of
the repeal on the WOTUS rule was to restore the rule of law
because the current--the 2015 rule has been sent back to the
Agency as in violation of our statutory authority. And under
the 401--I keep saying it, because it is true--States have the
ability to analyze the impacts of water quality as part of the
certification process.
Mr. Lynch. I thank you for your indulgence, Mr. Chairman,
and I yield back.
Mr. Rouda. Thank you, Mr. Lynch.
And the Chair now recognizes Mr. Graves who has asked to
make a clarification on one of his previous questions.
Mr. Graves of Louisiana. Thank you.
Mr. Chairman, I believe that Mr. Westerman had deferred
some time earlier, and I am claiming that to clarify.
On section 401, I want to make sure I understand, the
second panel, some of the written testimony indicates that the
administration's clarification on 401 would actually hamper
States' ability to exercise certification. I guess I struggle
with that. Because is there anything in the administration's
clarification that would prohibit States from making decisions
based on water quality?
Mr. Ross. No.
Mr. Graves of Louisiana. So that testimony would be
somewhat confusing or perhaps inaccurate?
Mr. Ross. Well, I haven't read the testimony, so I won't
weigh in on or provide an opinion.
Mr. Graves of Louisiana. Thank you.
One clarification. The chairman of the full committee put
up a chart earlier on the economic analysis of the WOTUS rule
and shared his thoughts of what that chart meant. There was a
caveat at the bottom that indicated that that chart represented
conditions with no State responses, meaning States would not
change laws or do anything differently.
Do you believe that to be the case or do you believe that
some States would actually act differently in a more dynamic
manner?
Mr. Ross. Well, actually, that is one of the things that we
have seen and we had our economists take a look at, that the
whole States' race to the bottom theory has been disproved.
States will rise. You know, there is--and so if you take a look
at the economic analysis associated with the step 2 proposal
and also what we have done in step 1, the States will rise. And
we have seen it.
You know, after the 2001 SWANCC decision, Wisconsin
immediately came in and expanded jurisdiction over wetlands. We
have seen it already in response to our proposal. The States
have already said we are going to step in and act. So the race
to the bottom theory from the 1970s and 1980s I think has been
disproved.
Mr. Graves of Louisiana. And, Mr. Chairman, just in
closing, I just want to make note that this goes back to my
first question, is that I believe the States can tailor the
clean water solutions to their own States and own hydrology, as
opposed to trying to come in and doing a one size fits all. And
I think this is a more elegant solution.
I yield back. Thank you.
Mr. Rouda. Thank you.
The Chair now recognizes Mr. Cohen for 5 minutes of
questioning.
Mr. Cohen. Thank you. And for the first time I can say
thank you, Chairman Rouda.
Mr. Rouda. Yes.
Mr. Cohen. Good to follow Mr. Graves.
And I want to thank the subcommittee for honoring my
request to hold this hearing today. It is a most important
subject. And I was at the Judiciary Committee with FISA and
then with some eye doctors on the power of stem cells and
recreating vision. So you are in good company, but I am late.
It is very important we have the opportunity to examine the
impact of coal plants and coal ash dumps on groundwater quality
and to examine the effects of coal ash contamination on the
quality of drinking water for communities across this country.
The issue of coal ash is very personal to my district and
myself. The residents of my State have seen it in two spots in
particular.
I have been working alongside my fellow congressman, former
fellow Tennessee General Assembly colleague, Tim Burchett, a
stalwart on this fight, to continue to shine some light on this
important issue.
In 2008, the largest coal ash spill in our Nation's history
occurred in Tennessee when a dike failed at TVA's Kingston
Fossil Plant, and 5.4 million cubic yards of coal ash cascaded
into the Emory and Clinch Rivers and smothered about 300 acres
of land. I met with TVA officials yesterday. They assured me
they are working on the cleanup and looking into the conditions
of the workers who claim they have been damaged with healthcare
maladies. And they said this was a preventable accident. And
hopefully, we won't see it ever again, and they promised me it
won't happen again. TVA has good new leadership, and I am
pleased about that.
We are here in 2019, and hundreds of people are still
dealing with the aftermath of that disaster, though. Meanwhile,
the EPA seems to be intent on weakening Federal protections for
coal ash. And that is disappointing. I would hope that the EPA
would work with TVA to see what happened at Kingston and try to
see that it doesn't happen again. And in Memphis, they have
left a lot of coal ash at a plant, and it is going to be 20
years to rid us of all of it. So that is another area of
concern.
Mr. Ross, on April 15, the EPA reversed its position for
over 40 years and determined that the Clean Water Act does not
apply to discharges of pollutions that flow through groundwater
before reaching a river, lake, or stream. This action clearly
goes against the plain language of the Clean Water Act and
creates a glaring loophole which could have disastrous impacts
on water quality.
The Clean Water Act is vital in preventing even more
environmental harm from the disposal of toxic coal ash left at
coal powerplants across the Nation. And that is what we have
got in Memphis is a coal plant out [inaudible].
There are approximately 1,400 coal ash sites across the
country where deadly toxic waste has been disposed of, posing
threats to clean water and people's health. And Memphis has one
of the finest clean water aquifers in the world, and our folks
are concerned about us being contaminated.
Ninety-two percent of coal ash ponds covered by this rule
are currently contaminating groundwater at levels exceeding
Federal health standards. The Allen Fossil Plant in my district
is identified as one of the most contaminated sites in the
country with levels of contamination hundreds times higher than
what could be considered safe.
So, Mr. Ross, my question, for decades, regulation under
State laws and other Federal statutes, such as the Safe
Drinking Water Act and Resource Conservation and Recovery Act,
reportedly have been shown to be insufficient to protect
communities from water pollution. How do you plan to protect
these communities, such as Memphis and east Tennessee folks in
Kingston, living near toxic coal ash sites that are leaching
into groundwater and traveling to surface water?
Mr. Ross. Well, there are multiple mechanisms in play
there, whether or not it is a CCR rule or you have some of
our--you know, whether or not State authority in--under State
law. We have other programs at the Federal level.
But I am going to address the--you know, one of the things
that you said about the 40 years of EPA position on the
discharges to groundwater. It hasn't been 40 years. We put out
a notice early last year trying to decide what is the actual
scope of authority under the Clean Water Act for discharges to
groundwater. And we got thousands and thousands of comments
back. And what we learned is that the EPA originally had a
position that we don't regulate discharges of groundwater,
because that is exactly what Congress intended.
The EPA Administrator actually asked Congress, up through
the debates in the 1972 amendments, to ask for authority to
regulate groundwater. There were amendments that were proposed
to go after and expand the 402 program to extend to discharges
of groundwater, and Congress specifically rejected that. And so
in the world of statutory interpretation, that is fairly
significant guidance to us.
And so our position is, you know, we could have--we started
with what our legal authority is when we wrote that
interpretive statement. We didn't follow the Ninth Circuit or
the Fourth Circuit. We didn't follow the Sixth Circuit. We
figured out what our legal authority really was before deciding
what our outcome is.
Mr. Cohen. And when you figured that out, was that less
than the circuits had given you authority to do or more?
Mr. Ross. So right now, in the Fourth and the Ninth, where
those courts have taken the position that--and, Chair, if I may
answer the question, I am happy to.
So rather than--even though I don't necessarily agree
legally with the rationale of those courts, we are not
upsetting the decisions in the Ninth Circuit and the Fourth
Circuit, because we know the Supreme Court has accepted cert
and is taking this interesting and difficult question up.
And so before EPA goes through a rulemaking, for example,
we are going to--if we are--have the benefit of Supreme Court
guidance, we are certainly going to take that into account. And
so we recognize the decisions in the Fourth and the Ninth
Circuit, just like we recognize the decisions in the Sixth
Circuit.
Mr. Cohen. I appreciate that, but that wasn't the question
I asked. My question was, when you came up with your opinion or
your thoughts on what your jurisdiction was, your legal
authority, was that more or less than the Fourth, Ninth, and
Sixth Circuits allowed you?
Mr. Rouda. Time has expired, but I'll allow the witness to
answer the question.
Mr. Ross. It is less. As we explained in our interpretive
statement, we have a different position than the Ninth and the
Fourth Circuit, and we don't believe we have the legal
authority to apply the 402 program to direct discharges of
groundwater.
Mr. Cohen. Mr. Chairman, if I could ask for another minute
or two since I asked for this hearing and just to get it----
Mr. Rouda. So granted.
Mr. Cohen. Thank you, sir.
Firstly, I wish you would go more expansive. It is the
people's health that is at stake. It is the water, water
internal, water external, water eternal. That is what we are
about. Water creates us. Water makes us live. Water cleans up
our lives, allows us to survive. If we have--blessed with clean
water, we need to keep it. We don't need to find ways to get
around enforcing laws that protect water. Water is the most
essential element on earth. I mean, it is there. Oxygen, OK.
Water, right together, H20, A.
B, we know that coal ash contains toxic chemicals such as
mercury, cadmium, and arsenic. The EPA's steam electric power
ELG rule was designed to control these and other toxic
discharges, expected to eliminate 1.4 billion pounds of toxic
discharges or 90 percent of all heavy metals entering the
waterways. But the EPA projected $451 to $566 million per year
in benefits associated with the rule and a minimal impact on
electricity generating capacity prices.
Why, despite these numbers, EPA has blocked implementation
and is considering revising and weakening these standards?
Mr. Ross. So the steam electric rule we are reanalyzing,
and we took two-way streams out of the five or so that were
done under the steam electric rule update. We are reanalyzing
the information and the data, and we currently have a proposal
over at OMB. And so I am not--at this stage, I will wait for
that proposal to hit the streets, and you will have your
explanation.
Mr. Cohen. Thank you, Mr. Chairman.
And to close, this was something--I don't know if you are
Republican or not. We are all Americans. It doesn't make any
difference if you are Republican. But there are Republicans
around because of this administration. And this is one of the
good things Richard Nixon did. So please uphold this for the
people's health and for a little bit that we can think of
Richard Nixon in a positive way.
I yield back the balance of my time.
Mrs. Napolitano [presiding]. Thank you, Mr. Cohen.
Mr. Ross, we thank you for your time and for your patience.
And you are excused for the rest of the panel. We are calling
the second panel up.
Thank you very much, sir.
Mr. Ross. Thank you, Chairwoman. Thank you for inviting me
and providing me the opportunity.
Mrs. Napolitano. You are welcome, sir.
We will now proceed to hear from our second panel.
Thank you for being here. And all of you are welcome. If
you will take your seats.
We have Ms. Maia Bellon, director of the Department of
Ecology, State of Washington; Ms. Becky Keogh, secretary,
Department of Energy and Environment, State of Arkansas; Mr.
Ken Kopocis, associate professor, College of Law, American
University.
And I do think Mr. Delgado would want to introduce Mr.
Hickey, who is next, from Hoosick Falls, New York.
Mr. Delgado, would you like to do so?
Mr. Delgado. Thank you, Madam Chairwoman.
It is a great honor for me to introduce Mr. Michael Hickey,
a good friend of mine at this point--and not just a
constituent, but a real friend--from Hoosick Falls, as you
know, New York, Rensselaer County.
We all owe him a debt of gratitude for following a
discovery he made after the death of his father in 2013. When
Michael's father passed away from cancer, he began to look into
a connection between cancer and the chemicals used in the local
manufacturing facility where his father worked. This would
eventually lead to the discovery that there was a higher
incidence of illnesses related to PFAS chemicals and extremely
unsafe levels of these chemicals in the Village of Hoosick
Falls, as well as the Village of Petersburgh's drinking water.
But Michael's advocacy did not stop there. He turned the memory
of his father into a force for good and nonstop public
advocacy.
Since 2013, Michael has been leading the charge to increase
transparency and accountability for PFAS chemicals at the
local, State, and Federal level. And his work led to New York
State designating the village as a Superfund site and the EPA
declaring one of the manufacturing facilities in Hoosick Falls
as a Superfund site.
Michael's groundbreaking advocacy has contributed immensely
to our understanding of PFAS contamination in New York, and it
is largely due to him that the community has received funding
for blood testing, remediation, and is no longer drinking the
water that was poisoning them.
Michael is a true hero in what he has done to spur action
on this issue, and I have been proud to work with him to call
for Federal regulation on these chemicals, including my
bipartisan PFAS Right-to-Know Act that would add PFAS chemicals
to the toxic release inventory. And he joined me at my townhall
in his hometown of Hoosick Falls that focused on water
contamination and our work to hold those contaminating the
water accountable.
Additionally, I was honored to have him join me for the
State of the Union. Our message then is our message today: The
PFAS crisis is urgent, prevalent, and not going away. The
administration must step up its efforts to protect the health
and safety of communities in upstate New York and across the
country.
I look forward to hearing Michael's testimony today. And I
appreciate the work of this committee to continue to shed light
on the prevalence of the toxic PFAS chemical in our
communities. I also look forward to continuing my work with
Michael, the Hoosick Falls and Petersburgh communities, and
members of the committee to address the needs of all upstate
residents who deserve drinking water that is free of cancer-
causing chemicals.
And just lastly, I don't often get emotional, Chairwoman,
but my exchange with Mr. Ross and his lack of desire to commit
to an MCL, and the fact that I was bothered to the degree that
I was, in many respects has to do with how connected I feel to
Mr. Hickey and the community in Hoosick Falls. This is real
lives, real people, not just numbers.
Thank you.
Mrs. Napolitano. Well, thank you, Mr. Delgado. I appreciate
it very much.
We also have Ms. Pam Nixon, president, People Concerned
About Chemical Safety; Mr. Geoffrey Gisler, senior attorney,
Southern Environmental Law Center.
And I would like to reintroduce Ms. Becky Keogh for Mr.
Westerman to introduce.
Mr. Westerman. Thank you, Madam Chair.
And it is an honor today to get to introduce Becky Keogh.
She is the secretary of the Department of Energy and the
Environment in the State of Arkansas. That is a recent position
as the State has reorganized State government. It is a cabinet-
level position. She formerly served as director of the Arkansas
Department of Environmental Quality.
She has had a long career in public service and private
service. She has worked for an international environmental and
engineering firm. She has worked previously in the ADEQ in the
State of Arkansas. And she has also been an active member of
the Environmental Council of the States since 1997. And when
she became the director of ADEQ in Arkansas, she was
immediately elected to one of four officer positions in ECOS.
Maybe the thing I like most about Secretary Keogh is that
she is a fellow University of Arkansas Razorback alum, College
of Engineering. She is a chemical engineer. So she understands
these issues very well.
And I want to welcome her to the panel today and look
forward to her testimony.
Thank you.
Mrs. Napolitano. Thank you, Mr. Westerman.
And we will proceed with the panel.
Ms. Maia Bellon, you have the floor.
TESTIMONY OF MAIA BELLON, DIRECTOR, DEPARTMENT OF ECOLOGY,
STATE OF WASHINGTON; BECKY W. KEOGH, SECRETARY, DEPARTMENT OF
ENERGY AND ENVIRONMENT, STATE OF ARKANSAS; KEN KOPOCIS,
ASSOCIATE PROFESSOR, WASHINGTON COLLEGE OF LAW, AMERICAN
UNIVERSITY; MICHAEL HICKEY, HOOSICK FALLS, NY; PAMELA NIXON,
PRESIDENT, PEOPLE CONCERNED ABOUT CHEMICAL SAFETY; AND GEOFFREY
R. GISLER, SENIOR ATTORNEY, SOUTHERN ENVIRONMENTAL LAW CENTER
Ms. Bellon. Thank you, Chair Napolitano, Ranking Member
Westerman, and distinguished members of the subcommittee. My
name is Maia Bellon. I am the director of the Washington State
Department of Ecology, and I am honored and privileged to be
here today.
Since Congress passed the Clean Water Act over 50 years
ago, it has enjoyed ongoing bipartisan support. It has served
as the essential framework across the Nation for keeping our
waters clean and our communities safe, until now. I am here to
speak about deeply troubling circumstances that should alarm
Democrats and Republicans alike, and that is EPA's attempt,
under this administration, to dismantle the Clean Water Act.
I am gravely concerned that these actions will harm
families and communities across the country by putting at risk
clean water for drinking, for fishing and swimming, by
threatening the economy of our water-based industries, and by
ignoring Federal obligations to Tribal nations across the
country, including Washington State's 29 federally recognized
Tribes.
I take seriously my role to provide clean water to 7
million Washingtonians. I must say that I am relieved to see
this subcommittee stand up and take notice of EPA's rollbacks.
Under the Clean Water Act, Congress empowered States to
serve as co-regulators with the Federal Government. This
includes longstanding State authority under section 401 to
ensure that federally permitted projects don't harm our waters.
But EPA has now proposed a rule that would, one, dramatically
narrow the scope of projects States can review; two, severely
restrict the time we have to review applications; and, three,
grant themselves ultimate veto authority over our State
decisions.
I cannot stress enough how damaging EPA's proposal will be
to States. And this is particularly concerning for Washington,
because we are a water State. We are the home to the Puget
Sound, one of the Nation's largest estuaries. We have hundreds
of lakes and thousands of river miles, including the Columbia
River.
And as a basis for these drastic measures, EPA's proposal
actually points to my agency's denial of a water quality
certification for the Millennium coal export terminal along the
Columbia River. The fact is that denial was based on the
Millennium project's failure to meet a multitude of specific
water quality standards as well as other State environmental
standards.
But let's face it, this rule is not about the facts. It is
about taking away State's ability to protect clean water. And
at the same time the Trump administration is dismantling
section 401, they are also shrinking the pool of water bodies
protected under the waters of the United States rule. They have
created chaos by repealing the 2015 WOTUS rule, leaving vast
portions of our Nation's waters unprotected, contrary to
Supreme Court rulings. And in one Washington county alone, the
WOTUS repeal will result in the loss of Federal protection for
over 50 percent of its streams and its wetlands.
And on top of these sweeping rollbacks, EPA is directly
targeting Washington State. They just repealed our State's
human health water quality standards. These standards apply
only to our State and deal with how we protect the health of
Washingtonians that consume fish, such as salmon and trout,
from our marine and our freshwaters.
This combination of rollbacks on both the national and
State level is unprecedented. There is no doubt this
administration is dead set on overturning protections that have
safeguarded our Nation's waters for decades. And I am here to
say that Americans deserve better. Our children deserve better.
We all deserve clean water.
But I am not giving up hope, and that is because of this
committee hearing today. And I want you to know that Washington
State fully supports Congress' much needed oversight of EPA and
recognizing the dangerous path that this administration is on
to ensure that the Clean Water Act is upheld and to ensure that
water is protected for all Americans.
Thank you for the time.
[Ms. Bellon's prepared statement follows:]
Prepared Statement of Maia Bellon, Director, Department of Ecology,
State of Washington
Thank you Chair Napolitano, Ranking Member Westerman, and members
of the Committee.
My name is Maia Bellon. I am the Director of the Washington State
Department of Ecology, and I have been proud to serve in this role for
the last 7 years. It is an honor to be here today.
Unfortunately, I am here to speak about a deeply troubling set of
circumstances that should alarm Democrats and Republicans alike--the
harmful actions being taken by the Environmental Protection Agency
(EPA) under President Trump, which amount to nothing less than an
attempt at fundamentally restructuring the Clean Water Act.
This is something only Congress has the authority to do.
I am gravely concerned by the ways this Administration's reckless
changes will impact families and communities in Washington state and
across the country who currently enjoy clean water for drinking,
swimming, and fishing--not to mention the economic injury it threatens
to our water-based industries, including recreation and tourism. Their
actions also ignore federal obligations to Washington's 29 federally
recognized Native American tribes, as well as tribal nations across the
country.
On behalf of the more than 7.5 million people I serve every day, I
am here to implore you as Members of Congress to continue conducting
this much-needed oversight, and to reassert your authority over an
Administration that is ignoring the rule of law and imperiling the
health of our waters. Americans are depending on you.
The Clean Water Act Enjoys Nearly a Half-Century of Bipartisan Support
Almost 50 years ago, the people of Washington state recognized the
importance of protecting our abundant natural resources by establishing
my state agency, the Department of Ecology--the first government agency
in the country focused on environmental protection, predating even the
EPA.
Two years later, a bipartisan Congress took similar action,
updating and strengthening federal laws on water pollution in America
and formally enacting what is now known as the Clean Water Act. Under
the new law, Washington became the first state in the nation to receive
federal Clean Water Act delegation. As the first state that received
delegation from the federal government, Washington has a long and proud
history of effectively implementing federal law to protect our numerous
water bodies, including the Puget Sound--the nation's largest estuary--
the Columbia River, hundreds of lakes, and thousands of miles of rivers
and streams.
In the nearly half-century since its enactment, the Clean Water Act
has enjoyed ongoing bipartisan support in Congress and has served as an
essential framework for every U.S. state and territory to keep our
waters clean and our communities safe--regardless of each state's
political party, and regardless of how much or how little water we
have.
I am here today as the director of a state environmental regulatory
agency to confirm that we have been proud and faithful stewards of the
responsibilities bestowed upon us by Congress.
Unfortunately, I am also here to report that the Trump
Administration is breaking with decades of precedent set by Republican
and Democratic administrations that came before it, by knowingly and
willfully refusing to execute the law as Congress intended.
EPA's Assault on the Clean Water Act Violates States' Rights and
Congressional Intent
This EPA has launched a series of attacks on multiple fronts to
undermine state authority, ignore congressional intent, and undercut
the guarantee of clean water for all Americans.
What we are witnessing is a deregulatory campaign aimed at
systematically dismantling the Clean Water Act as we know it.
Today I want to highlight two such attacks that affect all states
and territories, as well as a targeted attack on clean water in
Washington state specifically. These systematic attacks illustrate the
unprecedented level of overreach and disregard this EPA has for states'
rights and our delegated role under the Clean Water Act, granted to us
by Congress.
The first of these attacks is the Trump Administration's attempt to
rewrite the rules established by Congress for states and tribes under
Section 401 of the Clean Water Act.
Congress enacted Section 401 to give states the direct authority to
grant, condition, or deny water quality certifications for federally
permitted activities within our state borders. In doing so, Congress
empowered states to be co-regulators with the federal government, and
charged us with ensuring federally permitted activities are not
inconsistent with, or in violation of, water quality requirements.
In April, President Trump signed an executive order directing EPA
to completely rewrite the playbook for states under Section 401. The
White House is not shy about the purpose of this directive--they admit
plainly it is intended to help private industry get more energy
projects approved without ``interference'' from states like Washington.
Last month, EPA followed through by formally proposing changes to
the implementation of Section 401. If finalized, their proposed rule
would:
dramatically narrow the scope of federally permitted
projects that states have the authority to certify within our borders;
severely restrict the amount of time states have to
certify or condition a federally permitted project; and
grant themselves ultimate veto authority over state
decisions.
I cannot overstate how damaging EPA's proposed rule will be to
states.
EPA's attempt to set an artificial timeline shorter than the one-
year set by Congress could result in Ecology being forced to issue more
denials or have its authority deemed waived. In short, it would make
protecting water quality more difficult and result in more delays for
projects.
EPA's rule represents a massive overreach by the administration
that improperly constrains state authority, ignores both the spirit and
the letter of the law, and reveals this Administration's contempt for
the right of every state to protect our waters and our communities.
This is particularly concerning for Washington state where we are
deeply reliant on clean water for drinking, recreation, commerce, and
to fulfill tribal treaty obligations.
EPA's proposed rule cites my agency's denial of a water quality
certification for the Millennium coal export terminal on the Columbia
River as a basis for these drastic measures. For two years we have been
falsely accused of ``abusing our 401 authority'' and denying the
project based on our so-called philosophical opposition to coal. This
is frankly nonsense.
The fact is that our decision was based on the project's failure to
meet water quality standards, and its further failure to meet our
state's environmental standards. The project proponent failed to
provide any mitigation for the areas the project would devastate,
especially along the Columbia River. The environmental analysis
demonstrated that this project would have destroyed 24 acres of
wetlands and 26 acres of forested habitat, as well as dredged 41 acres
of river bed. It would have contaminated stormwater from stockpiling
1.5 million tons of material onsite near the river--picture, if you
will, an 85-foot-high pile of coal running the length of the National
Mall, from the steps of the Capitol to the foot of the Lincoln
Memorial.
In short, there were many insolvable problems with the Millennium
project--I have named only a few. I am confident in the work my agency
has done to protect Washington from the Millennium project's
irreparable harm. It was correctly and properly denied under our
Section 401 authority, which is further demonstrated by the multiple
court rulings that have upheld our decision.
The health of the Columbia River, and all of Washington's waters,
is vital to our state's agriculture and manufacturing economies,
central to our energy production, and relied upon by Washington's 29
federally recognized Native American tribes. It is also critical to
maintaining the healthy environment that Washingtonians treasure.
Yet, this administration is set on crafting a false narrative about
Washington state and making an example out of us to ensure that we, and
states across the country, lose our ability to protect our waters.
The fact is that states have been conducting this process for
nearly half a century without issue. That is why no other
administration has threatened to erode state authority, put clean water
at risk, and hand over the keys to polluters in such a radical way.
This EPA chose to forge ahead on issuing this rule despite
bipartisan outcry from governors, and despite failing to engage in
meaningful consultation. On January 31, 2019, the Western Governors
Association sent a letter to President Trump stating, ``We urge you to
direct federal agencies to reject any changes to agency rules,
guidance, or policy that may diminish, impair, or subordinate states'
well-established sovereign and statutory authorities to protect water
quality within their boundaries.''
Unfortunately, this plea from governors was ignored, and EPA's rule
recklessly erodes state authority. It not only contravenes the law and
the will of the states, but fails to acknowledge the vast differences
and needs among states. It is unacceptable and dangerous, and states
will not stop fighting to block it.
Another example of the Trump Administration's systematic assault on
the Clean Water Act is the rule change underway to repeal and replace
the definition for which bodies of water qualify as a Water of the
United States and therefore protection under federal law.
In 2015, EPA completed a long-overdue rulemaking process that
finally established a clear and scientifically defensible definition of
Waters of the United States that must be protected under the Clean
Water Act. The 2015 rule cleared up ambiguities from 1980s-era
regulations that made it more difficult for states like Washington to
control pollution in our waters. It was a welcome and necessary step
after years of litigation that resulted in two seemingly different
Supreme Court decisions, leaving the definition unclear and much more
difficult to enforce.
But now, President Trump's EPA has once again thrown the law into
chaos by taking the harmful step of repealing the 2015 rule and
proposing to replace it with a rule that will leave vast portions of
our nation's waters unprotected and that conflicts with Supreme Court
rulings. In one of Washington's counties alone, it will result in loss
of Clean Water Act protection for over 50 percent of streams and
wetlands. This ill-advised rule results in the exact opposite of
regulatory certainty.
Trump's EPA has left Washington and many other states struggling
for ways to protect waters that we have historically regulated and
protected. The Administration's decision to disregard the concept of
``significant nexus'' for determining which waters are Waters of the
United States flies in the face of science and common sense. Waters
such as ephemeral streams and adjacent wetlands, which have a
significant nexus to a traditionally navigable water, should be Waters
of the United States.
Like many other actions taken by EPA over the last two years, this
one appears to be rooted in political gamesmanship rather than
responsible governance.
Targeted Attacks on Clean Water in Washington State
While many of EPA's efforts are aimed at undermining Americans'
access to clean water across the country, this Administration has also
launched a number of attacks that are aimed directly at clean water in
Washington state.
This is perhaps most evident in their repeal of the Water Quality
Standards for Human Health Criteria--also known as our ``fish
consumption rule.'' This rule only applies to our state and it deals
with how we protect the health of Washingtonians that consume fish such
as salmon and trout from our marine and fresh waters.
Washington's fish consumption rule was finalized under the Clean
Water Act in 2016 after extensive public processes that included the
voices of communities, tribes, local governments, and businesses.
Yet in May, this EPA took the counterproductive and punitive step
of repealing our rule, creating an atmosphere of regulatory and legal
uncertainty that benefits no one.
As we have come to expect from this administration, they acted
against the repeated objections of our state and those of Washington's
tribes--and without a legal basis for the reconsideration of our
standards. Under the Clean Water Act, there are only two circumstances
under which EPA can propose new water quality standards for a state,
and neither circumstance currently exists in Washington.
We have already filed a lawsuit to stop EPA's overreach because
what they are doing is clearly illegal under the Clean Water Act, is
creating chaos, and opens up our businesses and local governments to
third party lawsuits.
Congress should be equally outraged by EPA's willful disregard for
the law.
Congress Must Uphold the Clean Water Act
Taken individually, each of EPA's actions threatens clean water and
states' congressionally delegated authority to safeguard our natural
resources and our communities.
Taken together, it is clear that the Clean Water Act is now under
direct and sustained attack, and this EPA will stop at nothing to
please polluters--including overturning protections that have
safeguarded our waters for decades.
While states are being tossed aside and ignored, Congress has the
constitutional authority as an equal branch of government to assert
itself and provide critical oversight of an unchecked executive branch.
When it enacted the Clean Water Act, Congress clearly intended for
the federal government to administer the law in coordination with
states, with both levels of government working in tandem to ensure the
law's effective implementation and the protection of our nation's
waters.
This EPA's sweeping actions are a violation of that intent, and an
insult to the concept of ``cooperative federalism.''
Rather than treating states as co-regulators, EPA is focused on
undermining the right and obligation of every state to safeguard our
waters and our residents from environmental harm.
Americans deserve better. We all deserve clean water.
In Washington state, and other states across the country, we take
our role to protect water seriously. But we need your help.
We are encouraged that this committee is standing up and taking
notice that EPA is no longer faithfully executing the law or
implementing the Clean Water Act as intended. Washington state fully
supports this much needed oversight to reign in this Administration's
outrageous actions.
Together, we can restore the promise of clean water for every
American, in every state and territory.
Thank you, and I look forward to answering your questions.
Mrs. Napolitano. Thank you, Ms. Bellon.
Next I have Becky Keogh. You have the floor.
Ms. Keogh. Thank you, Madam Chair and Ranking Member. I am
Becky Keogh, secretary of the Arkansas Department of Energy and
Environment. I bring greetings from the Natural State and from
my Governor, your former colleague, the Honorable Asa
Hutchinson. It is an honor to be here in Washington, DC, today
appearing before the subcommittee.
As our State slogan suggests, in Arkansas, we are
incredibly concerned with the health, beauty, and safety of the
waters of the United States. In fact, our Governor has recently
taken extraordinary steps, both financial and regulatory, to
ensure the enduring beauty and quality of America's first
national river, the beautiful Buffalo, by successfully
negotiating a permanent closure and conservation easement
conversion of a 6,500-plus hog operation near the river. Our
Governor noted that he believes in farming, but that it must be
balanced with efforts to preserve the Buffalo as a national
treasure.
Finding the balance between progress and preservation is a
constant struggle for environmental regulators, legislators,
and increasingly now more often, Federal judges. That is one
too many cooks in the kitchen, I think we can all agree. When
judges are left to be legislators, we have all failed.
The recent repeal of the 2015 Clean Water Rule is the first
step in making sure we are all using the same cookbook and the
same recipe. Prior to the recent repeal, 22 States followed the
2015 rule, while 27 did not. And New Mexico was left unclear as
to which cookbook to use or even if it was able to cook at all.
Now, Arkansas was not subject to the 2015 rule, but our
bordering States of Tennessee and Oklahoma were. Yet we share
similar ingredients. The Mississippi River, with Tennessee,
creating jurisdictional and adjacent wetland issues, and
Oklahoma where we share numerous interstate waters, some
tributaries of which may be currently jurisdictional in
Oklahoma but not in Arkansas.
Without a consistent definition of what is and what is not
a water of the United States, States are left to whip something
up from scratch. Arkansas and Oklahoma, with our Cherokee
National Tribal partners, are for the first time ever working
together on an Illinois River watershed improvement plan. This
basin-wide effort seeks to restore and protect the Illinois
River by engaging stakeholders, cities, and industry to address
historical issues, while ensuring community and agricultural
progress continues, a common application of WOTUS, while
enabling bordering States to effectively manage shared water
bodies.
But it is not only uniformity that we seek. We also want a
rule that is lucid, not ludicrous, in its application. The 2015
rule had broad opposition because of its, in pot-stirrer terms,
perhaps unconstitutional reach. The rule made it possible to
regulate waters on private land that were invisible to the
naked eye, with no physical channel or evidence of water flow.
With the broad ``we will know a regulated water body when we
see it'' reach of the rule, routine activities, such as home
construction, farming, and infrastructure investment were
stalled as the EPA and Corps functioned as more local zoning
boards than Federal regulators.
Seeking relief from this ambiguity and overreach, we turned
up the heat, pushing EPA and the Corps for dramatic overhauls
of this rule. We sought respect for the integrity of State
regulatory programs through removal of the rule's wasteful
Federal duplication. We don't always need that second helping.
We asked them to serve up a solution that abandoned the
helicopter mom mentality and regulatory authorization and
decisionmaking.
In Arkansas specifically, we needed a rule that supported
critical expansion of our broadband and highway
infrastructures.
Supreme Court Justice Scalia set out a recipe for success
in Rapanos v. United States when he instructed that the Clean
Water Act apply only to waterways with relatively permanent
surface water connections to navigable waters. And last week,
Administrator Wheeler and Assistant Secretary James finalized
these efforts to repeal the 2015 regulation, clarifying that
water bodies like the Buffalo River are subject to the Clean
Water Act but our backyard puddles are not.
While limiting ingredients of the Clean Water Act and
spelling out each step of a proper recipe, proposed revisions
also curtail States who set out to broadly apply section 401 of
the Clean Water Act, negatively impacting the economies of
other States and perhaps in direct violation of the Commerce
Clause. Again, a little bit more pot stirring.
The proposals allow the States the flexibility of
``seasoning'' a solution, but prevent States with waterways
from shutting out neighboring States from entire markets. And
while we do not face these same waterway challenges, Arkansas
is a net exporter of natural gas and supporting the protective
permitting program that reduces environmental risk while at the
same time meets market-response and critical-use needs.
This balance is accomplished in Arkansas through
innovation, technology, and best management practices. Our
secret ingredients--forestry-led initiatives like streamside
management zones, proper logging road construction, prescribed-
burn academies, and unpaved road initiatives--have contributed
to Arkansas' 92 percent adoption rate of forestry BMPs, with
resulting water quality protections and wildfire prevention.
In closing, I echo the words of the ranking member, a
fellow engineer and a friend to Arkansas, the Honorable Bruce
Westerman. In support of a new WOTUS rule and in support of a
common cookbook with a workable recipe, he reminds us that
rolling back the 2015 rule ends years of uncertainty over where
Federal jurisdiction begins and ends. For the first time, we
are clearly delineating the difference between federally
protected and State-protected wetlands.
Thank you for your time and consideration.
[Ms. Keogh's prepared statement follows:]
Prepared Statement of Becky W. Keogh, Secretary, Department of Energy
and Environment, State of Arkansas
Chairman Grace Napolitano (CA) and ranking member Bruce Westerman
(AR), I am Becky Keogh, Secretary of Arkansas's Department of Energy
and Environment. I bring greetings from the Natural State and from my
Governor (your former colleague) the Honorable Asa Hutchinson. It is an
honor to be in Washington, D.C. today appearing before the Subcommittee
on Water Resources and Environment. As our state slogan suggests, in
Arkansas we are incredibly concerned with the health, beauty, and
safety of the waters of the United States. In fact, our Governor has
recently taken extraordinary steps (both financial and regulatory) to
ensure the enduring beauty and quality of the Buffalo National River,
America's first National River, which was designated as such by this
very body several decades ago. Arkansas's own senior statesman, John
Paul Hammerschmidt, lead the charge to preserve the Buffalo River as
both a pristine resource and a majestic treasure. And Governor
Hutchinson picked up where Congressman Hammerschmidt left off by
successfully negotiating an agreement to further protect the Beautiful
Buffalo River and to establish permanent protection through a
conservation easement on land where a controversial 6500 plus hog farm
was authorized and operating. His action was accompanied by a call for
a permanent moratorium on similar facilities in the river's watershed.
In the announcement, Governor Hutchinson noted that he ``believes in
farming,'' but that must be balanced with efforts to preserve [the
Buffalo] as ``a national treasure.''
Finding the balance between progress and preservation is a constant
struggle for environmental regulators, legislators, and increasingly
more often, federal judges. That is one too many cooks in the kitchen,
I think we all can agree. When judges are left to legislate, we have
all failed. The recent repeal of the 2015 Clean Water Rule is the first
step in making sure we are all using the same cookbook and the same
recipe. Prior to the recent repeal, twenty-two states followed the 2015
Rule, while twenty-seven did not. (And, Arkansas's fellow Region 5
state, New Mexico was left unclear as to which cookbook to use or if it
was able to cook at all). According to United States Court of Appeals
for the Eighth Circuit, Arkansas was not subject to the 2015 Rule, but
our bordering states of Tennessee and Oklahoma were. Yet, we share
common ingredients: the Mississippi River with Tennessee (creating
jurisdictional and adjacent-wetland issues); and with Oklahoma we share
numerous interstate waters some tributaries of which may currently be
jurisdictional in Oklahoma but not in Arkansas.
Without a consistent definition of what is and what is not a Water
of the United States (WOTUS), states were left to whip something up,
from scratch. Arkansas and Oklahoma, with our Cherokee National tribal
partners, are--for the first time ever--working together on an Illinois
River watershed improvement plan. The basin-wide effort seeks to
restore and protect the Illinois River, which also runs through the
Cherokee Nation. The plan engages stakeholders, cities, and industry to
jointly address historical issues and to assure progress continues
while realizing the growth of community and agricultural interests.
While our multi-state and tribal partners share a sense of direction,
we struggled with boiling down our different regulatory mandates into
one pot containing seemingly the same, but (at least according to the
2015 rule) actually different quality water. Having a uniform
understanding of the fundamental definitions of WOTUS will certainly
enable more effective management of shared water bodies among the
states. But, it is not only uniformity that we seek. (As they say,
never trust a skinny cook.) We want also want a rule that is lucid not
ludicrous in its application.
The 2015 Rule has diverse and widespread opposition because of its
extraordinary, (in pot-stirrer terms) perhaps unconstitutional, reach.
The rule would have made it possible to regulate ``waters'' that were
in reality dry land, such as a depressions in land that hold water a
few days a year after heavy precipitation. Under the rule, citizens
were encumbered from engaging in routine activities, such as home
construction, infrastructure investment, and farming. The 2015 rule was
so extreme it even sought to regulate waters invisible to the naked
eye. The American Farm Bureau Federation explained:
. . . distant regulators using ``desktop tools'' can
conclusively establish the presence of a ``tributary'' on
private lands, even where the human eye can't see water or any
physical channel or evidence of water flow. That's right--
invisible tributaries! The agencies even claim ``tributaries''
exist where remote sensing and other desktop tools indicate a
prior existence of bed, banks, and [ordinary high-water marks],
where these features are no longer present on the landscape
today.
And, as Heritage Foundation Senior Research Fellow Daren Bakst
aptly stated: ``If waters didn't fall under specific categories as
listed in the rule, then the . . . rule created a backup plan'' to
extend its reach by including a `'we will know a regulated water when
we see it aspect of the rule.'' And as a means to this end, the EPA and
the Corps were functioning more as local-zoning boards than federal
regulators.
A broad range of states, citizens, tribal nations, cities, and
industries started turning up the heat on the EPA and Corps of
Engineers, demanding relief from the ambiguity and overreach of the
2015 rule. From our view, a dramatic change was critical to the
continued vitality of our farmers, counties, and industries. We asked
the EPA and the Corps to remove wasteful regulatory duplication (we
don't always need a second serving of regulation) and to respect the
integrity of our state programs. We asked them to serve up a solution
that abandoned (or at least simmered down) their helicopter-mom
mentalities that occurred in regulatory authorization and decision
making. In Arkansas specifically, we needed a rule that would allow
critical investments to advance and expand broadband and highway
infrastructure.
Supreme Court Justice Scalia set out a recipe for success when he
argued that the Clean Water Act applied only to waterways with
``relatively permanent'' surface water connections to navigable waters
in the Rapanos v. United States 4-1-4-decision. And just last week, all
this pot stirring has come to a head, as EPA Administrator Andrew
Wheeler and Assistant Secretary of the Army for Civil Works R.D. James
E finalized their efforts to repeal the 2015 regulation, and in so
doing clarified which wetlands and waterways are subject to the Clean
Water Act. (Who says a watched pot never boils?) As noted by our United
States Senator, Tom Cotton, we now have a workable rule that is:
more sensibly balanced between conservation, on the one hand,
and development. We want to protect our waterways, which is the
source of so much enjoyment and satisfaction and commerce in
our state and all across the country, but at the same time we
want to protect private property rights and development as
well,'' he said. ``Rivers like the Buffalo National River or
the Arkansas River [or] the White River are waterways of the
United States, clearly, under what our founders meant in the
Constitution. Puddles in backyards? Not so much.
By sorting out the required and limited ingredients of the Clean
Water Act and spelling out each step of the proper recipe, these
revisions curtail states who set out to misapply Section 401 of the
Clean Water Act in ways that negatively impact the economies of other
states, perhaps (more pot stirring) in violation of the Commerce
Clause. The new rule allows states the flexibility of ``seasoning'' the
solution, but prevents states from shutting out neighboring states from
entire markets. And while we do not face the same waterway challenges
of some states, Arkansas is a net exporter of natural gas and is
thereby supportive of a protective permitting program that reduces
environmental risk while at the same time meets market-response and
critical-use needs.
And, in Arkansas we further reduce environmental risk by employing
a variety of best management practices. Of particular concern to you,
Congressman Westerman, Arkansas's Secretary of Agriculture, Wes Ward,
reports a high adoption rate of forestry best management practices,
including water-quality protection as well as unique agriculture
engagement to manage and prevent wildfires. As you know, these Arkansas
forestry-led initiatives (from how to build temporary logging roads:
where to put dips and turnout ditches, how to do stream crossings with
skidders when logging, to stream-side management zones that require at
least thirty-five feet of trees to remain on both sides of the stream,
for seventy-feet total, along with prescribed-burns and prescribed-burn
education as well as an un-paved road initiative modeled after a
successful Pennsylvania program) have proven effective in preventing
wildfires, increasing shade, and reducing sediment. In 2018, Arkansas
statistically monitored 200 recent logging jobs for best management
practices and found there was an 92% implementation rate. Such action
underscores Arkansas's commitment to conservation, it could be said
that we are cooking up a storm with state-led environmental solutions.
In closing, I will echo the words of the ranking member of this
committee, your friend and a friend to Arkansas, the Honorable Bruce
Westerman. In his support of the new WOTUS rule (in his support of a
common cookbook, with a workable recipe), he noted that the rollback of
the 2015 rule ends ``years of uncertainty over where federal
jurisdiction begins and ends. For the first time, we are clearly
delineating the difference between federally protected wetlands and
state-protected wetlands.'' Thank you for your time and consideration.
Mrs. Napolitano. Thank you, ma'am.
We now may proceed with Mr. Kopocis. You are on.
Mr. Kopocis. Thank you.
Thank you, Chair Napolitano, Ranking Member Westerman, for
the invitation today. I am here in a personal capacity.
The U.S. has made great strides since our environmental
laws were enacted in the late 1960s and early 1970s, but we are
only one-half of the way to the goals Congress set in 1972 for
fishable and swimmable waters, and that goal was to be met by
1983.
With much work remaining to improve water quality, the
Trump EPA appears determined to roll back water quality
protection wherever possible. To date, EPA actions include
reducing the scope of waters protected from pollution and
destruction under the Clean Water Act to levels not seen since
the Clean Water Act was enacted.
Just last week, EPA finalized a rule to return the scope of
waters protected to those established by the Reagan
administration. This is directly contrary to the position of
all interest groups following the confusion generated by the
Supreme Court. And that point was made quite eloquently by the
chairman of this committee.
I was on the staff of this committee at that time, and I
can tell this committee that no one argued to retain the status
quo. Some argued for regulation, some argued for legislation,
but nobody asked for the Reagan-era rule, yet that is the
course that the Trump EPA is pursuing.
Even more detrimental to water quality, EPA is finalizing a
rule that, as proposed, would further weaken the Clean Water
Act by eliminating protection for thousands of stream miles and
wetlands nationwide, including 55 million acres of farmland
containing wetlands, an area roughly the size of Nebraska.
The proposal was clearly based upon Justice Scalia's
plurality opinion in Rapanos, which five Justices rejected. And
notwithstanding what Mr. Ross said about the concurrence of
Justice Kennedy, Justice Kennedy called the Scalia opinion
unpersuasive and, quote, ``inconsistent with the acts, text,
structure, and purpose,'' close quote.
While there has been a lot of discussion about the proposal
providing more clarity, I would argue that it provides far less
clarity. If a landowner is supposed to know what is or is not
covered on their property--I can read you some of the language
that is in the proposal saying that landowners will have to
rely on trapezoidal flumes and pressure transducers for
measuring surface flow and comparing that to rainfall, but they
will need to do regional regression analysis or hydrologic
modeling, that the rule itself admits will be challenging to
accomplish in the field and could be time-consuming. That is
from the proposal.
In developing the Clean Water Rule, EPA's Office of
Research and Development prepared an exhaustive synthesis of
peer-reviewed science on how waters are connected. EPA has made
no attempt to refute the science. Instead, EPA chose to ignore
it. EPA ignoring science is like the CIA ignoring intelligence
or NOAA ignoring weather forecasts.
The EPA is reconsidering the steam electric effluent
limitations guidelines. These controls would annually eliminate
1.4 billion pounds of arsenic, lead, mercury, cadmium,
selenium, chromium; 30 percent of all toxics discharged by
industry in the United States, as well as nutrients from our
waters. The EPA is doing so even as the Fifth Circuit Court of
Appeals ordered the EPA to consider stronger controls on
discharges, not weaker ones.
And I would also point out that Mr. Ross, earlier in answer
to a question, seemed to not want to answer on the coal
combustion residuals rule, known as CCR, not Creedence
Clearwater Revival. But that rule is also under reconsideration
at this point. So the Agency is currently in the process of
relaxing the requirements for water discharges while
simultaneously reviewing the rule that would have controlled
the existing impoundments, the very issue that the Fifth
Circuit told the EPA to look at.
The EPA is allowing greater amounts of pollutants from
treatment plants through blending. Make no mistake, this is a
reduction in the secondary treatment requirements that Congress
wrote into the law in 1972.
We have already heard about EPA reversing its positions on
section 401. Ms. Bellon explained very clearly why that is so
important to the States. Mr. Ross himself acknowledged that
these permits could take 4 to 5 years, yet he would propose to
cut off a State's action to act on that permit in year 1, when
the State doesn't even know what the project is that it needs
to protect its water quality from.
The Trump EPA is systematically taking the cops off the
beat by significantly reducing its ability to enforce
environmental protection laws through budget cuts and reducing
the actions it takes. These reductions are a conscious decision
to create more avenues for our bedrock environmental laws to be
violated without fear of being caught or responsibility.
Candidate Trump promised to get rid of EPA in almost every
forum, leaving, quote, ``little tidbits'' intact. This may be
in the interest of developers, oil and gas, agribusiness, and
significant polluters, such as coal-fired plants, but it is not
in the interest of the public or the environment. In my 34
years of water law, I have never heard the public say that the
water in our rivers, lakes, streams, and ponds is too clean,
that there are too many healthy fish to catch and eat, that our
drinking water is too clean, or that we need more beaches to be
closed due to pollution.
EPA needs to do its job in protecting human health and the
environment under the Clean Water Act. This is not a time for
retreat.
Thank you.
[Mr. Kopocis' prepared statement follows:]
Prepared Statement of Ken Kopocis, Associate Professor, Washington
College of Law, American University
Chairman Napolitano, Ranking Member Westerman, and other members of
the subcommittee, thank you for the request to appear today to discuss
the ``The Administration's Priorities and Policy Initiatives under the
Clean Water Act.'' I appear today in a personal capacity.
In 1972, Congress established the objective of the Clean Water Act,
to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. Congress made clear that this
objective would be best achieved by controlling pollutant discharges at
their source, and reemphasized that objective through the substantial
amendments of 1977 and 1987 that tightened controls on pollutant
discharges. Congress made improving water quality the heart of the
statutory and regulatory program.
Congress also created significant roles for the States in the
implementation of the Clean Water Act, and today most of the day-to-day
activities for implementing the Clean Water Act are carried out by the
States with assistance and approval by EPA.
The President has frequently said that the United States has the
cleanest air and water. While that characterization is rated mostly
false by PolitiFact, the U.S. has made great strides since our
environmental laws were enacted in the late 1960's and early 1970's. We
have doubled the waters meeting state-established water quality
standards, but we are only one-half the way to the goals Congress set
for fishable, swimmable waters in 1972--a goal Congress said should be
reached by 1983.
With much work remaining to improve water quality, the Trump EPA
appears determined to roll back water quality protection wherever
possible. To date, EPA actions include----
Reducing the scope of waters protected from pollution and
destruction under the Clean Water Act to levels not seen since the
Clean Water Act was enacted.
Just last week, EPA finalized a rule to return the scope of waters
protected to those established by the Reagan administration. This is
directly contrary to the position of all interest groups following the
confusion generated by the Supreme Court in the Rapanos v. U.S.
decision in 2006. I was on the staff of this committee at that time and
no one argued to retain the status quo. Some argued for legislation and
some for regulation, but no one wanted to retain the Reagan-era rule.
Yet, that is the course the Trump EPA is pursuing.
Even more detrimental to protecting water quality, the EPA is
finalizing a rule that as proposed would further weaken the Clean Water
Act by eliminating protection for thousands of miles of streams and
wetlands nationwide, including 55 million acres of farmland containing
wetlands--an area the size of Nebraska.
EPA is reconsidering the steam electric effluent limitations
guidelines. These are controls on coal-fired power plants that would
eliminate annually 1.4 billion pounds of arsenic, lead, mercury,
selenium, chromium, cadmium--30% of all toxics discharge by all
industrial categories under the Clean Water Act--and nutrients from our
waters. EPA is doing so even as the Fifth Circuit Court of Appeals
ordered EPA to consider stronger controls on discharges associated with
power plants, not weaker.
The Trump EPA is looking to allow greater amounts of pollutants
from treatment plants through dilution--a process called blending. Make
no mistake, while plants sometimes use this blending concept during
unusual flow events, this is a reduction in the secondary treatment
requirements Congress wrote into the law in 1972. If a community has an
infiltration/inflow problem or a lack of capacity for treatment that is
what should be addressed, plants should not simply dilute untreated
waste. These investments have been eligible uses of federal assistance
since 1972.
EPA reversed its decades old position that prohibits disposing of
waste without limit or treatment though unlined pits or underground
where this disposal is so connected to nearby protected waters that the
nearby waters become polluted. No public comment, just a reversal to
allow greater pollution.
EPA wants to limit the ability of states to protect their waters to
state standards by restricting the ability of states affect water
quality in federal permits, even while EPA argues in restricting the
scope of the Clean Water Act that states know best how to protect their
waters.
EPA is placing resource extraction--mining, oil and gas, and
logging--above environmental protection by limiting its own authority
to protect drinking water and natural resources from unacceptable
impacts.
The Trump EPA is systematically taking the cop off the beat by
significantly reducing its ability to enforce environmental protection
laws through budget cuts and reducing the actions EPA takes.
The Christian Science Monitor conducted a thorough analysis of EPA
enforcement data and documented some disturbing results. The Monitor
reported that fines against polluting lawbreakers, for fiscal year
2018, totaled about $69 million--the lowest, by a significant degree,
since the EPA's enforcement office was created in 1994.
On another key measure, injunctive relief--the cost of complying
with an EPA order--the $3.95 billion figure reported by the EPA is the
lowest in 15 years. The Monitor found that 40 percent of the total is
from cases that were settled by the EPA under President Obama. The
average annual cost of compliance is $7.74 billion, nearly double EPA's
most recent figures.
Other disturbing findings of the Monitor include: inspections in
2018 were the lowest since records began in 1994; the number of civil
cases initiated was the lowest of any year since 1982; judicial
referrals for both 2017 and 2018 were 110--the lowest number since 1976
and less than half the average annual number of 239.
While numbers may vary from year-to-year, these precipitous
declines are not a mere variance or outlier. These reductions in
environmental enforcement reflect a conscious decision to create more
avenues to ignore our bedrock environmental laws without fear of being
caught or held responsible.
Clean water in adequate supply is essential to our existence.
Whether illustrated by the recent droughts in California or the lead
contamination in Flint, Michigan, we have daily reminders that water is
essential to life. Waters are also important to the environment in
which we live. Rivers, lakes, ponds and wetlands supply and cleanse our
drinking water, ameliorate storm surges, provide invaluable storage
capacity for flood waters, and enhance our quality of life by providing
essential habitat, myriad recreational opportunities, as well as
important water supply and power generation benefits.
Consider these facts about the value of clean water to Americans:
Manufacturing companies use nine trillion gallons of
fresh water every year.
31 percent of all water withdrawals in the U.S. are for
irrigation, highlighting the extent to which the nation's farmers
depend on clean water.
About 40 million anglers spend $45 billion annually to
fish in U.S. waters.
The beverage industry uses more than 12 billion gallons
of water annually to produce products valued at $58 billion.
About 60 percent of stream miles in the U.S. only flow
seasonally or after rain, but are critically important to the health of
downstream waters.
Approximately 117 million people--one in three
Americans--get their drinking water from public systems that rely on
seasonal, rain-dependent, and headwater streams.
The EPA and Department of the Army issued the Clean Water Rule in
2015 to ensure that the Nation's waters could continue to provide these
essential benefits, making waters better protected from pollution and
destruction by having the scope of the Clean Water Act easier to
understand, more predictable, and more consistent with the law and
peer-reviewed science.
The EPA has repealed the 2015 Clean Water Rule. But its proposed
replacement is a retreat from Congress' clearly stated objective of
protecting the Nation's waters.
The proposal was clearly based upon Justice Scalia's plurality
opinion in Rapanos. The proposal rejects the ``significant nexus'' test
that informed a unanimous court in U.S. v. Riverside Bayview Homes in
1985 and that was clearly stated by the majority in Solid Waste Agency
of Northern Cook County v. Army Corps of Engineers in 2001. Rather than
adhere to Supreme Court precedent, EPA appears to be challenging the
Supreme Court by establishing yet another test, supported by only four
of the nine justices in Rapanos, for determining which waters will be
protected from pollution and destruction by the CWA. Such a path is
inconsistent with the CWA, judicial and administrative precedent, and
the concurring opinion of Chief Justice Roberts in Rapanos wherein he
cited Supreme Court precedent on how to interpret a decision when no
opinion commands a majority of the Court.
A majority of the Court, five of nine justices, expressly rejected
Justice Scalia's plurality opinion in Rapanos. In addition to the four
dissenting justices who rejected the plurality opinion, Justice
Kennedy, while concurring in the judgment to vacate and remand the
cases, wrote that Justice Scalia's plurality opinion finding that the
CWA did not cover intermittent or ephemeral streams or wetlands ``makes
little practical sense in a statute concerned with downstream water
quality'' and was ``unpersuasive.'' He concluded his assessment of the
plurality opinion in particularly direct terms, ``In sum, the
plurality's opinion is inconsistent with the Act's text, structure, and
purpose.''
A Scalia-based rule also has many adverse practical effects for
protecting State waters from pollution and destruction. For example,
eliminating the protection for intermittent and ephemeral streams will
remove Clean Water Act protection for a significant number of waters.
In more arid areas of the country, this could be as high as 80 to 90
percent of waters no longer protected. These waters would no longer be
protected by water quality standards, no Clean Water Act permits would
be required for discharges of pollutants, funding to address municipal
wastewater, stormwater, and nonpoint source pollution would be less
available, and Federal authority to respond to oil spills would be
curtailed. While some argue that States can and will fill this void,
since the scope of the Clean Water Act was first limited in 2001 and
further limited in 2006, there is little evidence that the States have
done so.
In developing the Clean Water Rule, EPA's Office of Research and
Development prepared an exhaustive synthesis of peer-reviewed science
on how waters are connected to each other and how they impact
downstream waters. This Science Report was also peer-reviewed by EPA's
independent Science Advisory Board and subjected to public comment. The
Science Report informed the agencies' actions in response to the policy
guidance provided by the Supreme Court in both the SWANCC and Rapanos
decisions--how best to consider the significant nexus between upstream
and downstream waters when determining the jurisdiction of the Clean
Water Act.
The final Science Report provides several key conclusions based on
review of the peer-reviewed scientific literature:
1. All tributary streams, including perennial, intermittent, and
ephemeral streams, are physically, biologically, and chemically
connected to downstream rivers and this connection influences the
integrity of downstream rivers.
2. Wetlands and open waters in floodplains and riparian areas are
physically, chemically and biologically connected with downstream
rivers and influence the ecological integrity of such rivers.
3. Non-floodplain wetlands and open waters (i.e., isolated waters)
provide many functions that benefit downstream water quality and
ecological integrity.
4. The connectivity of streams, wetlands and other surface waters,
taken as a whole, to downstream waters occurs along a continuum from
highly connected to highly isolated--but these variations in the degree
of connectivity are critical to the ecological integrity and
sustainability of downstream waters.
5. The critical contribution of upstream waters to the chemical,
physical, and biological integrity of downstream waters results from
the accumulative contribution of similar waters in the same watershed
and in the context of their function considered over time.
Continuing even to today, the validity and credibility of the
science developed by the EPA to support the Clean Water Rule has not
been seriously challenged. EPA has not denied or refuted the science.
The various litigants challenging the Rule have not put forward newer
or better science to dispute the conclusions of the Science Report. If
there is better science, those challenging the conclusions, whether
public or private, have an obligation to bring such science to the
attention of the public and the agencies for their consideration.
Without such new information, EPA must stand behind the prior work.
Instead, EPA is choosing to ignore it.
EPA ignoring science is like the CIA ignoring intelligence or NOAA
ignoring weather forecasts.
The Trump EPA has put forward a false choice that providing
protection against polluting and destroying waterbodies somehow is
averse to States' interests. Under the Clean Water Act, States decide
how clean their waters will be by establishing the designated use for
waters within the State. States are also able to establish water
quality criteria that support those uses. Forty-seven of the fifty
States already implement many day-to-day aspects of the Clean Water Act
through state permitting programs. The federal-state partnership has
worked will to improve and protect water quality since 1972. This is no
time to dissolve the partnership.
The Clean Water Act is often referred to as our most effective
environmental law, and it has resulted in great improvements in water
quality. However, the work is far from finished--State generated water
quality reports indicate hundreds of impaired waters need reduced
pollution and increased protection. Abandoning upstream waters and
continuing the confusion on how to protect water quality, eliminating
or reducing regulatory requirements to eliminate toxic discharges,
taking the cops of the beat, restricting the rights of states to
protect their waters, and other steps of the Trump EPA do not advance
these joint efforts at the State and Federal level.
Candidate Trump promised to get rid of the Environmental Protection
Agency ``in almost every form,'' leaving only ``little tidbits''
intact. This may be in the interest of developers, oil and gas,
agribusiness and significant polluters such as coal-fired power plants,
but not in the interests of the public or the environment. In my
thirty-four years in water law, I have never heard the public say that
the water in our rivers, lakes, streams and ponds is too clean, that
there are too many healthy fish to catch and eat, that our drinking
water is too clean and abundant, or that we need more beach closures
due to pollution. EPA needs to do its job in protecting human health
and the environment under the Clean Water Act. This is not a time for
retreat.
Thank you again, I am pleased to answer any questions you may have.
Mrs. Napolitano. Thank you, Mr. Kopocis. Thank you for your
testimony.
And I will proceed with Mr. Hickey.
Mr. Hickey. Thank you very much, Chairwoman. Obviously,
public speaking, this isn't really my most favorite place to
be, doing, at all. So I really appreciate the opportunity, and
hopefully I won't mess this up too badly.
But thank you, Congressman Delgado, for everything that you
are doing for our community.
For me, kind of an accidental advocate for my community
and, you know, it was really more about a mission for my dad. I
started out as a heartbroken son, and I turned into an advocate
because of that. Who is at fault is we have multiple industrial
plants. One is called Saint-Gobain that uses PFOA. It has been
in Hoosick Falls since 1955. We once had 11 operating plants
that had over 500 employees. Now we are down to 2 with 200. So
it has been there, and it is the lifeblood of Hoosick Falls.
So my dad was diagnosed with kidney cancer in 2010, the
month before my son was born. And he actually had his kidney
out the day my son was born. So my dad went into surgery, had
his kidney out, and I went upstairs and had my son. So, it was
a process, pretty difficult at that point in time. You know,
and kind of the next 2 years went by; he was OK. And the kidney
cancer came back--and the second kidney in 2012, and he passed
away early on in 2013.
My dad worked multiple jobs. He worked in the factory 11 to
7 o'clock, and he drove a schoolbus during the day. And he was
retired for 9 months before he passed away. So working two
concurrent jobs for 32 years is a lot, and me and my brother
and my sister had great opportunities because of the work that
my mom and dad did in the plant. And I am not an
environmentalist, and I probably couldn't have given you the
full definition of what is a Democrat or Republican. You know,
and this issue for me has been more common sense. And that is
kind of what I have tried to do throughout the process.
So, in Hoosick Falls, we have only 3,500 people on the
public water supply, and PFOA at that point in time wasn't
tested because our town was too small. It was only 3,500
people. Under the UCMR 3, you had to have 10,000 or above.
Actually, how we got to that point was, a year after my dad
passed away, a teacher passed away. And I did a simple Google
search because I knew what was being manufactured in town at
that point. And I typed in ``Teflon'' and ``cancer,'' and I
came across the C8 science panel in West Virginia. And I read
for the next 4 months every night probably 11 until 2, 3
o'clock in the morning, probably the most driven I have ever
been about anything ever.
And I kept reading because it is a big accusation to blame
your local employer about: You contaminated our water. You
contaminated the people. You are making people sick.
They are the lifeblood, and we are blue collar. So those
jobs are extremely important. You know, that is what our
community is about, and I am sure that many of your communities
as well. You are hard workers. You are proud to work, and you
want to be able to supply for your family.
So, you know, I knew that was a big accusation to make. I
went to the mayor, and we didn't test because of our size. So I
kept on going. I talked to our local doctor. I said: You know,
could there be anything to this, these six illnesses that are
related in West Virginia? Do you see a lot of them here?
And, yeah, we did, is what he said. We need to push
forward. We need to do something. And then going to the county,
to the State, nobody would test.
So I found who did the testing in West Virginia. I ordered
the kit from Canada, and we did the testing. I took water from
my mom's house, my house, my McDonald's, the local dollar store
and sent it back, and it came back at 540 parts per trillion at
my house, 460 at my mother's. At that point, we knew we had a
problem and brought that back to the mayor because, obviously,
I wanted to hand him off a folder and be done at that point. It
didn't go that way.
It took another year and a half. I had to get an
environmental attorney involved, and I think that that is why I
am here today was to speak about the EPA. They played a large
role in stopping the water from being drunk in Hoosick Falls
under the previous administration, and I have had now the
privilege to work with the prior administration and to work
with the current. And it is a little night and day at this
point in time, to tell you the truth.
You know, Mr. Kelly, ``Kell'' Kelly, he was the Superfund.
He came to Hoosick Falls. I met him. He was really nice. He
gave me his card. He said, ``Call me whenever you need
anything,'' because we have five Superfund sites, and one
Federal. He resigned 3 days later, though. So that didn't
really work out that great with him.
I met Mr. Ross when I came for the State of the Union with
Mr. Delgado, and I am sure that he is doing everything legally
that he can in following the laws, but I think that there is
common sense that we are missing out on right now. I think
that, you know, the EPA has a position to help all of the
States. In New York, we have a lot of resources. We have DEC
and the DOH, and they stepped in, but you still needed the EPA
to tell us about chemicals. And they are not doing that, and we
need to continue to push forward with common sense.
There is 20 years of research on PFAS, if not more. We just
need to do some commonsense legislation.
Thank you.
Mrs. Napolitano. Would you wrap it up? Go ahead.
Mr. Hickey. I am sorry. If I went over my time, I
apologize.
[Mr. Hickey's prepared statement follows:]
Prepared Statement of Michael Hickey, Hoosick Falls, NY
Good morning. Thank you, Chairwoman Napolitano, Ranking Member
Westerman, and members of the subcommittee for the invitation to speak
today and tell my story.
My name is Michael Hickey. I live in Hoosick Falls, which is in
upstate New York near the Vermont and Massachusetts border. I was born
and raised there with my brother, my sister and my parents.
Hoosick Falls is my home, and it is a casualty of PFAS water
pollution that's left its toxic mark on my family and my neighbors.
Just months into his retirement, my father, John Hickey, was told
he had kidney cancer. He passed away from this disease in 2013. A year
after that, a teacher passed away in her late 40s from cancer. There
was speculation around town about how many people were getting these
rare illnesses. When you're in a smaller community like Hoosick Falls,
you pay attention to that, and I thought there might be something to
it.
I knew our village's water wells sat next to the local
manufacturing facility that produces Teflon products, so I did a google
search for ``Teflon'' and ``cancer.'' What I found was a C8 science
panel from West Virginia and the first thing under the related illness
section was a ``probable link'' between PFOA and kidney cancer--the
very disease my dad passed away from.
Teflon is the brand name of a lab-made chemical used in a variety
of products, such as nonstick pots and pans. In my hometown, it was
used to waterproof big tents. Teflon is made using a chemical called
perfluorooctanoic acid, that is PFOA or C8, which is in the PFAS
chemical family. These PFAS compounds are known as ``forever
chemicals'' because they don't really break down in nature. They have
been linked to a variety of health problems, from adverse impacts on
the liver and the immune system to cancer.
I had never been involved with any environmental issues before, so
this was all new to me. I probably read about three hours a night for
the next couple of months to try to figure it out. When I thought that
I had enough information, I passed it on to a local physician and I
asked him to take a look to see if there was a connection. He did. He
thought there was a higher incidence of those illnesses in our
community.
At that point, we approached the mayor and asked if the city had
tested for PFOA, but they had not because the EPA did not require it of
smaller systems at that time.
I wanted to be able to sleep at night. I wanted to know if our
water was making us sick. So, I looked up who did the testing for the
DuPont study and it was a lab out of British Columbia, Canada. After
contacting that lab, I went and I tested the water at my house, my
mother's house, the local dollar store, and the local McDonalds. The
results came back two weeks later--and they were positive for PFOA. My
mom's house had the highest at 540 ppt; mine was 460 ppt. At that
point, I knew we had a big issue.
Over the next 7 months, I worked with an environmental attorney out
of Albany to look into the issue. He reached out to Judith Enck, who
was the EPA administrator of Region 2 under the Obama Administration at
the time.
Ms. Enck came in and right away basically cut off the entire
village from drinking the water. Shortly after that, the village became
a Superfund site. To date, there's been about $30 million spent in
Hoosick Falls on updating filtration, blood testing, and remediation.
We're still looking for an alternate water source, so there's still
things to be done, but it's been a long process.
That's why I'm here today to ask the EPA to do better to prevent
contamination in the first place. We need improvement in water
infrastructure and to pay more attention to monitoring these chemicals.
From what I've observed, this current administration is not as
aggressive as the previous one. I met with Director Ross earlier this
year and I was unimpressed with the lack of urgency that he gave this
issue.
Like the new mayor of Hoosick Falls, I view the EPA's so-called
action plan for PFAS to be more of an inaction plan that further delays
regulating these toxics. For example, the plan would delay determining
if the EPA could possibly regulate PFAS under the Clean Water Act until
2021. The science is clear that we need to protect our water sources
now from further pollution from these dangerous chemicals. We should
limit PFAS discharges to water bodies by adding PFAS limitations to
NPDES permits and developing ambient water quality criteria for PFAS.
The EPA is failing to do its job to protect us. We need a real
action plan that treats this issue with the urgency and importance it
needs. We need a plan that:
Regulates PFAS immediately under the Clean Water Act;
Cleans up the sources of contamination and contaminated
water supplies;
Makes the polluter pay for water contamination cleanup,
including the military, which is responsible for many contaminated
sites around the country;
Sets enforceable standards for drinking water for the
entire class of PFAS chemicals;
Provides funding to help communities like Hoosick Falls
provide safe water; and
Provides training for healthcare professionals and
medical monitoring in impacted communities.
We need Congress to step up to make sure that smaller communities
like Hoosick Falls are taken care of and that they're safe. These
illnesses are real. They're affecting people every day.
Thank you for the opportunity to testify today.
Hoosick Falls Background
Hoosick Falls, a village of 3,500 people northeast of Albany, has
become one epicenter of growing concerns around perfluorooctanoic acid
(PFOA), an industrial chemical used to make Teflon. It has been called
New York's Flint.
In 2014, testing revealed high levels of PFOA in the drinking
water. The majority of samples revealed PFOA levels exceeding 600 ppt,
which was far higher than the EPA health advisory of 400 ppt at the
time. Today the advisory level is 70 ppt, and there is evidence that
this level is still far too high. Blood testing results were similarly
alarming. Many residents were found to have PFOA levels in their blood
that were 100 times the national average.
The source of the contamination appears to be a nearby plastics
factory, now operated by Saint-Gobain Performance Plastics, which used
PFOA in its manufacturing process. Groundwater under a Saint-Gobain
plant was found to have PFOA levels at 18,000 ppt. The EPA has added
the Saint-Gobain Performance Plastics site to its Superfund National
Priorities List of the most hazardous waste sites in the country, which
requires the agency to ensure that the contamination is cleaned up.
Hoosick Falls is still waiting on a real plan to connect to a new,
safe municipal water supply.
PFAS Background
Per- and polyfluorinated compounds (PFAS) are a group of lab-made
chemicals first created in the mid-twentieth century that have caused
widespread water and food contamination. PFAS are often referred to as
``forever chemicals'' due to their virtually nonexistent natural
breakdown over time. As local, state and federal agencies expand
testing for PFAS, we are beginning to understand the true scale of the
problem. They are found in hundreds of locations across the country,
affecting the water supply for millions of Americans.
PFAS have been used to coat a wide range of products to protect
against heat, chemicals and corrosion, and they have been used in
aqueous film-forming foam to extinguish petroleum fires. While their
stable chemical structure and ability to repel both water and oil makes
them attractive for a wide variety of applications and products, these
characteristics are also the very ones that have led to their
widespread contamination of the environment and people.
PFAS chemicals have been found in nearly the entire U.S.
population, and a growing body of science has been documenting their
toxicity and public health impacts. A 2003 to 2004 survey by the U.S.
government estimated that over 98 percent of the U.S. population had
detectable levels of PFAS in their blood.
PFAS is a big chemical family. As of 2018, at least 478 PFAS
chemicals had been reported to the EPA as being used in U.S. commerce.
Other sources report that thousands of PFAS chemicals have been
produced and used by various industries, in both the United States and
around the world. The most studied and pervasive forms are
perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).
PFOA has been used in the production of the chemical
polytetrafluoroethylene (PTFE), best known by the brand name Teflon,
which was first synthesized in 1938 by a DuPont scientist and came into
widespread use in the 1960s. The compound also has been used in
waterproof textiles, electrical wire casing and more.
PFOS has also been used in the production of everyday
household items. One of the most well-known products that contained
PFOS was 3M's line of Scotchgard stain repellants. PFOS also has been
used in pesticides, surface coatings for carpets, furniture, waterproof
apparel and paper goods.
Recent reports show that new generations of PFAS, such as GenX,
have been on the rise, with concentrations vastly exceeding those of
the legacy PFAS chemicals. Despite claims of low bioaccumulation,
emerging PFAS chemicals are as environmentally persistent as their
predecessors. Additionally, there is evidence that these newer
chemicals can break down to form their legacy counterparts.
While awareness of these substances seems to have gained momentum
in the last few years, evidence of their stubborn persistence and
toxicity has been around since the late 1960s and 70s, only to be
overlooked until relatively recently. This resulted in delayed
intervention, allowing the continued release of the substances into the
environment.
Toxicity
PFAS chemicals pose serious risks to human health, and emerging
evidence indicates that even very low levels of PFAS exposure may not
be completely safe for human health, particularly vulnerable
populations such as infants. Infants may be especially vulnerable
because of PFOA contamination of breast milk and because of their
higher intake of water relative to their body weight. PFOA and related
substances have been found in human maternal and cord blood in North
America and abroad.
There are a number of well-documented health effects associated
with exposure to PFOA and other PFAS chemicals: high cholesterol;
thyroid disease; reproductive effects, including decreased fertility
and pregnancy-induced hypertension; decreases in birth weight; adverse
impacts on the liver and on the immune system; decreased vaccine
response; ulcerative colitis; and neurobehavioral effects such as
attention deficit hyperactivity disorder (ADHD).
PFAS chemicals may cause cancer. The World Health Organization's
cancer research arm, the International Agency for Research on Cancer,
classifies PFOA as a Group 2B carcinogen, or ``possibly carcinogenic to
humans.'' The U.S. EPA concludes that there is ``suggestive evidence''
of carcinogenicity of PFOA in humans. Highly exposed humans were
observed to have correlating increases in testicular and kidney cancer.
Water Treatment
According to the EPA's Drinking Water Treatability database, PFOA
and PFOS can be removed by up to 99 percent by processes such as
granular activated carbon, membrane separation, ion exchange and
powdered activated carbon. Aside from these technologies, PFAS removal
is resistant to many, if not most, water treatment processes, while
other technologies may in fact increase their concentrations. Other
processes, such as powdered activated carbon, are effective at removing
older PFAS chemicals, but become less effective with newer forms of
PFAS, many of which are replacing the older ``legacy'' types of PFAS.
Weak Regulations
PFAS are not currently regulated under the Clean Water Act, and
there is no enforceable federal standard for PFAS chemicals in drinking
water under the Safe Drinking Water Act. Information on industrial PFAS
releases is sparse. Facilities are not required to test for or report
PFAS wastewater discharges since the EPA has not classified any of
these chemicals as toxic pollutants or hazardous substances under the
Clean Water Act.
The EPA has established a lifetime drinking water health advisory
level of 0.07 micrograms per liter (mg/L), or 70 ppt, for PFOA and
PFOS, but it has not yet issued an enforceable Maximum Contaminant
Level for drinking water. The health advisory level falls short not
only in lack of effectiveness, but in stringency. Emails disclosed in
early 2018 found that the EPA suppressed a scientific assessment of
PFASs from a federal health research agency that recommended a much
more stringent level of protection that was nearly 7 to 10 times lower
than the EPA's health advisory.
The EPA Needs a Real Plan of Action
As we begin to understand the scope of the problem, emerging
research tells us that there are no 'safe' levels of PFAS in our
drinking water. The EPA's PFAS Action Plan announced in February fails
to implement immediate limits to effectively regulate PFOA and PFOS, or
other PFAS. In addition, there are concerns about conflicts of interest
within the agency. David Dunlap, a former Koch Industries official,
runs the EPA's research arm that will shape regulations for dangerous
chemicals in our water, such as PFAS. This raises red flags because
Koch Industry's Georgia Pacific company is facing at least one class
action lawsuit in Michigan related to PFAS contamination,\1\ and as of
February 2019, a company spokesperson said it may still be
manufacturing products with these chemicals.\2\
---------------------------------------------------------------------------
\1\ Barrett, Malachi. ``Lawsuit alleges 3M and Georgia-Pacific
caused Parchment PFAS emergency.'' MLive. November 21, 2018.
\2\ Snider, Annie. ``Former Koch official runs EPA chemical
research.'' Politico. February 4, 2019.
---------------------------------------------------------------------------
The EPA needs a real plan of action that immediately protects
people and the environment from these dangerous chemicals:
1) The EPA must regulate PFAS under the Clean Water Act requiring
enforceable effluent limits in NPDES permits and developing ambient
water quality criteria for PFAS.
2) The EPA must regulate PFAS under the Safe Drinking Water Act by
setting enforceable limits on PFAS in drinking water as soon as
possible.
3) The EPA must regulate all PFAS chemicals as a class, rather
than individually. Because of the number of different chemicals that
are PFAS, considering them as individual chemicals will require too
many resources and too much time. After decades of delay and widespread
exposure by a large portion of the population, action is urgently
needed and the fastest way to tackle this issue is to regulate PFAS
chemicals as a class.
4) Due to widespread PFAS contamination of water supplies
nationwide, the EPA must allocate funds to states and municipalities
for the testing and any needed treatment of drinking water from
community water systems and individual household wells. If treatment or
groundwater remediation is untenable or unsuccessful, support should be
provided to connect systems and households to alternative water
supplies. Congress should provide federal funding to ensure that every
household has access to clean, PFAS-free water.
5) To assist communities in assessing the extent of the
contamination of their water systems, EPA should provide guidance on
testing for PFAS and investigate the possibility of using a broader
screen, such as total organic fluorine level.
6) The EPA must research water treatment technologies that address
the removal of the newest generation of PFAS.
7) The EPA should provide guidance and resources to test
individual household water wells for PFAS contamination, and the Agency
should provide support for nonprofit technical assistance to households
and small community water systems to test and remove PFAS from drinking
water.
8) The EPA should ban the use of sewage sludge (biosolids) as a
soil amendment.
9) The EPA must more clearly communicate information about health
risks to the public, particularly regarding new generation PFAS
chemicals.
10) The EPA must do a better job at monitoring these emerging
contaminants and informing the public of their prevalence and toxicity.
The EPA collects data for six types of PFAS, including PFOA and PFOS.
However, there are hundreds of PFAS that are documented in U.S.
commerce that lack sufficient environmental and health data. Emerging
PFAS contaminants like GenX and others, used to replace legacy
chemicals, have growing, but still relatively little, data on their
prevalence in the environment and their toxicity.
11) The EPA should designate PFAS as Hazardous Substances under
CERCLA.
12) The EPA should finish the recommendations for contaminated
sites, including providing guidance on water treatment technologies.
13) The EPA should provide support for communities dealing with
contaminated sites, including establishing biomonitoring and medical
monitoring programs, as well as education for medical professionals in
impacted communities.
14) The EPA should expand its PFOA Stewardship Program to work
toward the complete elimination of all new manufacturing and import of
all types of PFAS chemicals, including newer generation, shorter-chain
compounds, to prevent further contamination.
The American people have been exposed to these toxic chemicals for
decades without any safeguards. It's beyond time to start the work to
address this crisis. Our country deserves an urgent and comprehensive
response to this crisis.
Mrs. Napolitano. Thank you very much for your very moving
testimony, and it was really informative and educational, and
hopefully, we will continue to take action on that. Thank you
very much.
Next, we have Ms. Pam Nixon. You may proceed.
Ms. Nixon. Yes. Thank you for allowing me the time to
testify today.
I am president of the nonprofit organization People
Concerned About Chemical Safety, also known as PCACS, out of
Charleston, West Virginia. We are an affiliate of Environmental
Justice Health Alliance for Chemical Policy Reform, also known
as EJHA.
On January 9, 2014, there was a major chemical spill into
the Elk River from a tank farm located along the Elk River in
Charleston, West Virginia. Ten thousand gallons of crude MCHM
mixed with PPH were released into the river, only 1\1/2\ miles
upstream of our public drinking water supply intake. Our
Governor and public officials called for a do-not-use order.
This meant that approximately 300,000 residents in 9 counties
could only use our tap water to flush our toilets. Nearly 600
people ended up visiting emergency rooms complaining of
symptoms related to the spill, and 13 were hospitalized.
Schools and businesses were closed. Noncritical surgeries were
canceled, and our legislators had to temporarily adjourn.
Businesses in the area lost at least $61 million during the
first month.
The most vulnerable were the low-income residents, the
elderly, and the people of color who did not own vehicles. They
had the difficulty of trying to get to the temporary water
stations, to carry their bottles with them sometimes, and then
they had to carry the heavy bottles of water back home to be
able to take care of their whole family.
When the spill occurred, West Virginia did not have spill
prevention regulations for aboveground storage tanks storing
hazardous chemicals and neither did, nor does, the EPA.
After reconvening in 2014, our legislators wrote in and
passed the comprehensive AST bill, Aboveground Storage Tank
bill, which Governor Tomblin signed into law. But within 3
years, those provisions have been amended and weakened twice.
Congress passed the Clean Water Act in 1972, which directed the
President to issue spill prevention regulations for facilities
that stored oil and hazardous substances. President Nixon
delegated the responsibility of that section of the Clean Water
Act to the EPA. The EPA quickly issued spill prevention
regulations for oil. But despite promising a spill prevention
rule that covered all AST under their jurisdiction, the EPA
never finalized hazardous substance spill laws.
In 1982, Congress created a Federal program regulating
underground storage tanks that contained petroleum and
hazardous chemicals. Between 1984 and 2015, Congress passed
five actions to improve and strengthen requirements for the
underground storage tanks and even created a trust fund for
cleaning up leaks.
Forty years later, in 2015, EJHA and PCACS, my
organization, and the Natural Resources Defense Council filed a
lawsuit against EPA over the failure to issue hazardous
substance spill prevention regulations for aboveground storage
tanks. In February of 2016, EPA agreed in a consent decree to
develop the spill prevention rule, accept comments, and publish
the final rule by the summer of 2019.
In June of 2018, EPA Administrator Pruitt signed a proposal
to take no action by pointing to existing regulations that
provide only limited regulatory protections. On August 22nd of
this year, Administrator Wheeler signed the final take-no-
action rule, and it was published in the Federal Register on
September 3rd.
Residents in many States lack any spill prevention laws,
remaining as vulnerable as we were in 2014. Without a
comprehensive rule, EPA continues to put the health and safety
of millions of American citizens in danger. The country needs a
robust Federal AST, or aboveground storage tank, spill
prevention program to protect our waterways.
We need regulations to minimize tank leaks and all ASTs
containing oil products and hazardous substances and to protect
our drinking water sources. We need a trust fund to clean up
AST leaks and spills. We need regulations that will ensure that
the design and construction materials and secondary containment
systems meet the established engineering standards. We need
leak detection and corrosion systems for aboveground storage
tanks. We need transparent third audits. We need the public to
have the right to know and access to information about the
hazardous chemicals and aboveground storage tanks where they
live, work, and play.
One more. I am sorry.
We also need robust notification to our public and to
public drinking water systems in a timely manner when a spill
does occur.
And if EPA continues to ignore providing rules for
aboveground storage tanks, we hope that Congress will step up
and again require them to do so.
[Ms. Nixon's prepared statement follows:]
Prepared Statement of Pamela Nixon, President, People Concerned About
Chemical Safety
Good morning. My name is Pamela Nixon. Thank you for allowing me
time to testify on the EPA's No-Action decision on the Hazardous
Substance Spill Prevention Rule for aboveground storage tanks. I am
representing the organization People Concerned About Chemical Safety,
which is an affiliate of the Environmental Justice Health Alliance for
Chemical Policy Reform.
On January 9, 2014, there was a major chemical spill at the former
Freedom Industries tank farm located on the banks of the Elk River in
Charleston, West Virginia. Ten thousand gallons of crude MCHM (4-
methylcyclo-hexanemethanol) mixed with PPH (primarily dipropylene
glycol phenyl ether and propylene glycol phenyl ether) were released
into the river only 1\1/2\ miles upstream of our public drinking water
system intake.
The governor and public health officials called a Do Not Use order
for our drinking water supply. Approximately 300,000 residents in nine
counties were advised not to use tap water for drinking, cooking,
showers, washing dishes, or washing clothes. Nearly 600 people visited
emergency rooms complaining of symptoms related to the spill, and 13
were hospitalized. A few days after lifting the Do Not Use order, the
West Virginia Bureau for Public Health announced that pregnant women
should continue to drink bottled water, which caused confusion.
Schools, businesses, and hotels were closed, non-critical surgeries
were canceled, patients were transferred to other hospitals for
surgeries, and the 2014 West Virginia Legislative Session had to
temporarily adjourn because of the chemical spill. Businesses in the
area lost at least $61 million dollars during the first month because
of this disaster. (1)
Low-income residents and the elderly were the most vulnerable and
negatively impacted. Bottled water stations were located on parking
lots that could accommodate the large trucks. If a household didn't
have a vehicle, they had to rely on public transportation (bus), ask
neighbors or family members to take them to get water, or walk. If they
walked or rode a bus, they had to carry the heavy bottles of water back
home to their families. Unless you have been through a disaster like
this, you tend to take for granted just how dependent we are on water.
To this day I continue to buy bottled water for drinking and cooking.
At the time of the spill, West Virginia did not have spill-
prevention regulations for aboveground storage tanks (ASTs) storing
hazardous chemicals and neither did, nor does, the U.S. EPA.
When the 2014 West Virginia legislature reconvened, they wrote and
passed Senate Bill 373, a comprehensive AST bill, which the governor
signed into law. But, under industry pressure, those provisions have
been amended, and weakened, twice.
When Congress passed the Federal Clean Water Act in 1972, it
directed the President to issue spill-prevention regulations for
facilities that store oil and hazardous substances, like ASTs. (2)
President Nixon delegated that responsibility under Clean Water Act
section 311(j)(1)(C) to the EPA. (3) The EPA quickly issued spill-
prevention regulations for oil. (4) And in 1978, the EPA proposed
spill-prevention rules for hazardous substances like ammonia, benzene,
PCBs, and hydrochloric acid at certain industrial facilities. (5) But
despite promising a spill rule covering all ASTs under EPA jurisdiction
``in the near future,'' the EPA never finalized any hazardous substance
spill rule for ASTs.
In 1982, Congress created a federal program to regulate underground
storage tanks (USTs) containing petroleum and hazardous chemicals to
minimize tank leaks. Congress directed the EPA to establish operating
requirements and technical standards for tank design and installation,
leak detection, spill and overfill control, corrective action, and tank
closure. Between 1984 and 2015 there have been five Congressional
actions to improve and strengthen requirement for UST owners as well as
create a trust fund for cleaning up leaks. (6)
In an effort to ensure similar requirements and standards are in
place for ASTs, the Environmental Justice Health Alliance for Chemical
Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS),
and Natural Resources Defense Council (NRDC) filed suit against the EPA
in 2015 over its failure to issue hazardous substance spill-prevention
regulations for ASTs, as Congress had required over 40 years before.
(7) In February 2016, EPA agreed in a Consent Decree to develop a
proposed hazardous substance spill-prevention rule, accept comments,
and publish the final rule by this summer. (8)
In June 2018, EPA Administrator Scott Pruitt signed a proposal to
take no action to prevent hazardous substance spills from ASTs. He did
so despite the Clean Water Act's clear command that the EPA ``shall
issue regulations'' and EPA's own finding that industry self-reports
nearly 1000 hazardous substance spills each year. To justify his
proposal, Administrator Pruitt pointed to existing regulations that
provide only limited protections for some types of hazardous substances
at some subset of ASTs at chemical facilities. (9)
Despite many comments identifying the flaws in EPA's analysis and
the holes in existing regulations, (10) Administrator Wheeler signed
the final do-nothing rule on August 22 of this year. It was published
in the Federal Register on September 3. (11)
Many states across the country lack any spill prevention laws for
ASTs. Residents in those states remain as vulnerable today as we West
Virginians were on January 9, 2014. It is imperative that EPA develop
and implement regulations directly designed to prevent spills of
hazardous substances, as Congress mandated over 45 years ago. By not
finalizing a comprehensive rule, EPA is continuing to put the health
and safety of millions of U.S. residents in potentially dangerous
situations.
A robust federal spill-prevention program for aboveground chemical
tanks should do the following:
1. Regulate ASTs containing petroleum and hazardous substances to
minimize tank leaks and protect drinking water sources supplied by
surface and groundwater;
2. Create a trust fund to clean up AST leaks, similar to the fund
for USTs;
3. Develop regulations for ASTs that will ensure the designs,
construction materials, and secondary containment systems meet
established engineering standards;
4. Require leak and corrosion detection systems for ASTs;
5. Require transparent third-party audits;
6. Ensure the public has the right to know and access to
information about the hazardous chemicals in ASTs near where they live,
work, and recreate; and
7. Provide robust notification to the public and public drinking
water systems in a timely manner when a spill does occur. (12)
If EPA continues to ignore its duty to issue these necessary
regulations, Congress should step in and again require them to do so.
Thank you for considering my testimony.
end notes
(1) Lessons from the Elk River Spill--Environmental Health
Perspective. https://ehp.niehs.nih.gov/doi/pdf/10.1289/ehp.122-A214.
(2) Pub. L. No. 92-500, 311(j)(10), 86 Stat. 816, 868 (codified
at 33 U.S.C. 1321(j)(1)).
(3) Executive Order No. 11735, 1(4), 38 Federal Register 21243
(Aug. 7, 1973).
(4) Oil Pollution Prevention, Non-transportation Related Onshore
and Offshore Facilities, 38 Fed. Reg. 34,164, 34,164 (Dec. 11, 1973);
see also 40 C.F.R. part 112.
(5) Hazardous Substances Pollution Prevention for Facilities
subject to Permitting Requirement, 43 Fed. Reg. 39,276 (Sept. 1, 1978).
(6) EPA Underground Storage Tanks (USTs). How have Congress and
EPA responded to concerns about USTs? https://www.epa.gov/ust/learn-
about-underground-storage-tanks-usts#how.
(7) Compl., Envtl. Justice Health All. for Chemical Policy Reform
v. EPA, 15-cv-5705 (SAS) (filed S.D.N.Y. July 21, 2015).
(8) Consent Decree, Envtl. Justice Health All. for Chemical Policy
Reform v. EPA, 15-cv-5705 (SAS) (entered S.D.N.Y. Feb. 16, 2016),
available at https://www.documentcloud.org/documents/2714720-2-16-16-
Haz-Mat-Consent-Decree.html.
(9) Clean Water Act Hazardous Substances Spill Prevention.
Proposed Action, 83 Fed. Reg. 29,499 (June 25, 2018), available at
https://www.federalregister.gov/documents/2018/06/25/2018-13470/clean-
water-act-hazardous-substances-spill-prevention.
(10) E.g., Comments of Environmental Justice Health Alliance et
al. (Aug. 24, 2018), available at https://www.regulations.gov/
document?D=EPA-HQ-OLEM-2018-0024-0184; Comments of the Association of
Metropolitan Water Agencies (Aug. 23, 2018), available at https://
www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-0160; Comments of
the National Association of SARA Title III Program Officials (Sept. 9,
2018), https://www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-
0152.
(11) Clean Water Act Hazardous Substance Spill Prevention. Final
Action, 84 Fed. Reg. 46,100 (Sept.3, 2019), available at https://
www.govinfo.gov/content/pkg/FR-2019-09-03/pdf/2019-18706.pdf.
(12) See generally Comments of Environmental Justice Health
Alliance et al. on Docket ID No. EPA-HQ-OLEM-2018-0024-001 (Aug. 24,
2018), at 25-33.
Mrs. Napolitano. Thank you very much for your testimony,
Ms. Nixon, and truly good testimony.
Mr. Gisler, you may proceed.
Mr. Gisler. Thank you, Chairwoman Napolitano, Ranking
Member Westerman, and members of the subcommittee. I appreciate
the opportunity to speak to you today.
My name is Geoff Gisler, and I am an attorney with the
Southern Environmental Law Center. I lead our organization's
clean water program. It is in that capacity that I worked on a
number of issues that are before you today. I have described
five of those in my testimony and have described them as they
relate to the Cape Fear River in North Carolina.
The Cape Fear is North Carolina's largest river system, and
it provides the drinking water for more than 2.1 million
people. It faces many challenges. Those include threats created
by this administration by the proposed changes to the section
401 certification regulations, by the threat of coal ash
pollution, the threat caused by sewage blending, the changes to
the waters of the U.S. definition, and from PFAS contamination.
It is those last two that I want to talk about today in
this opening statement, but I am happy to answer questions
about any of those topics.
I want to first talk about the waters of the U.S. change
and the radical proposal put forward by this administration in
February of this year. I think it is best to do that by looking
at Fayetteville, North Carolina. It is one of the major cities
on the Cape Fear and is home to our largest military base in
Fort Bragg.
The change in the definition of waters of the U.S. will
have a significant impact in Fayetteville, North Carolina. It
will eliminate protections for more than half of the streams
that are in the immediate vicinity of Fayetteville and more in
a higher percentage of wetlands. That matters in Fayetteville
for two reasons.
First is that Fayetteville gets it drinking water from the
Cape Fear. So, when the streams and wetlands that flow through
the Cape Fear are not protected, that drinking water will be
dirtier and more contaminated. The second reason is that
Fayetteville has survived two record-setting floods in the last
3 years from Hurricanes Matthew and Florence.
We know that the very streams and wetlands that are
threatened by this administration, those that dry up for part
of the year, are the ones that have the greatest flood storage
capacity. They are the ones that protect our community and
buffer us against storms and flooding. We cannot protect places
like Fayetteville if we do not protect streams and wetlands.
If we go just downstream from Fayetteville, we run into
Chemours Fayetteville Works facility. For nearly four decades,
Chemours and its predecessor have dumped Gen X and other PFAS
directly into the Cape Fear at levels that are hundreds of
times higher than what the State of North Carolina recognizes
as a safe level. They have not only done that through their
discharge pipe; they have done it through severe contamination
of groundwater under the site. Some samples have shown levels
of PFAS at 46 million parts per trillion. The State standard
for Gen X--that is for Gen X. And the State standard for Gen X
or the health advisory level is 140 parts per trillion.
That groundwater flows into the Cape Fear and combines with
our discharge from their pipe and flows 55 miles downstream
where it is taken into the drinking water supply for more than
200,000 people who live in Pender County, New Hanover County,
and Brunswick County, North Carolina. Those people have been
drinking highly contaminated groundwater for decades--drinking
water for decades from a plant that is more than 80 miles away.
Unfortunately, this administration has not responded to
that crisis. The PFAS action plan that has been proposed
doesn't include any meaningful action that will help the
communities like Wilmington, like those in Pender and Brunswick
Counties. It does too little, and it takes too long. If EPA
were serious about addressing this issue, they could take
immediate action that would stop PFAS from getting into our
waterways and not only focus on how we can clean it up after it
is out in our environment. The Agency has chosen not to do
that.
It has also decided that reversing decades of legal
interpretation of the Clean Water Act, that it is OK for
Chemours and companies like it to pollute our drinking water so
long as they pollute the groundwater first and let that flow
into our drinking water supply; so that is acceptable under the
Clean Water Act. It is not. It is not allowed, and the statute
prohibits it. This EPA should as well.
The Cape Fear is unique in many ways. This story is not
unique. Many of our rivers across the country face these same
challenges. And if this administration is successful, these
stories will end in disaster.
Thank you for the opportunity to testify today, and I
welcome your questions. Thank you.
[Mr. Gisler's prepared statement follows:]
Prepared Statement of Geoffrey R. Gisler, Senior Attorney, Southern
Environmental Law Center
In the more than forty years since the Clean Water Act passed, we
have made significant progress in our national effort to rescue our
rivers from their perilous state in the early 1970s. This
administration threatens to reverse that progress, having proposed or
implemented rules and taken policy positions that will substantially
undermine federal, state, and citizen efforts to protect waters across
the country.
As the leader of the Southern Environmental Law Center's Clean
Water Program, I have had the privilege of working with attorneys
across our six-state region to educate the public about the actions of
this administration and to represent communities affected by degraded
water quality protections. We have submitted comments to the
Environmental Protection Agency on each phase of its efforts to re-
write the waters of the United States definition to take protections
from streams and wetlands, its efforts to increase toxic industrial
discharges, and its recent proposal to strip states of their authority
under Section 401 of the Clean Water Act. In each instance, we have
asked this administration to do more to protect our waters; in each
instance, it has done more to increase pollution.
Clean water has been a priority of the Southern Environmental Law
Center since our founding in 1986. We represent clients from the
smallest organizations or communities focused on a single watershed to
national organizations looking to protect our varied water resources.
In our more than 30 years, we've stood for the unremarkable principle
that our rivers should be safe places to swim, fish, and get our
drinking water. We appreciate this committee's efforts uphold that
principle. Thank you for the opportunity to submit this testimony.
I. More protection is necessary to achieve the Clean Water Act's
objective.
As a nation, we have made progress towards meeting the Act's
objective to ``restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.'' \1\ Compared to the
conditions that prompted its passage, when rivers and streams were
``little more than open sewers,'' \2\ we have had some success in most
places. The massive algae blooms that choked the Great Lakes, killing
millions of fish and tainting the water supplies of millions,\3\ are
less frequent. The biologically ``dead'' \4\ Lake Erie has come back to
life. Then, wetlands were disappearing at an alarming rate--depriving
coastal areas and river valleys of critically important flood control
protection and ecological benefits.\5\ Now, we have wetland protections
and a ``no net loss'' policy that has slowed wetlands destruction while
restoring many that were previously degraded.
---------------------------------------------------------------------------
\1\ 33 U.S.C. 1251(a).
\2\ S. Rep. No. 111-361, at 1 (2010).
\3\ Id. (citing 138 CONG. REC. D612 (daily ed. Sept. 22, 1992)
(Prepared Statement of LaJuana S. Wilcher, Assistant Administrator for
Water, at EPA, Hearing Before the Committee on Environment and Public
Works, United States Senate)).
\4\ S. Rep. No. 111-361, at 1 (2010).
\5\ Id.
---------------------------------------------------------------------------
That said, we have more work to do. Although we have slowed stream
and wetland loss and degradation, we have not stopped or reversed it.
Under existing law, more wetlands and streams are degraded or destroyed
than are restored or replaced through mitigation.\6\ With that
destruction, we lose valuable habitat, pollution control, floodwater
storage, and a host of other ecosystem services provided by those
streams and wetlands.
---------------------------------------------------------------------------
\6\ See, e.g., 2017-18 Annual Report, N.C. Division of Mitigation
Services at 7, https://files.nc.gov/ncdeq/Mitigation%20Services/
Administration/Reports/2017_2018ar/AR-2017-
2018-FINAL-REPORT.pdf (describing impacts authorized compared to
mitigation required).
---------------------------------------------------------------------------
Our rivers are still threatened by pollution. Some of that
pollution is what motivated the passage of the Clean Water Act--more
than 85 million gallons of raw sewage were spilled into North Carolina
streams and rivers in the last year.\7\ In addition, coal ash stored in
leaking, unlined pits continues to taint our waterways with arsenic,
mercury, lead, and other toxic pollutants. New research is uncovering
the breadth of pollution from per- and polyfluoroalkyl substances
(PFAS); dangerous chemicals that persist in the environment,
bioaccumulate, and are toxic to people. PFAS are just one of many
chemicals of emerging concern that are slipping through the cracks of
our regulatory system and into our waters.
---------------------------------------------------------------------------
\7\ SELC analysis of N.C. Department of Environmental Quality
statewide sanitary sewer overflow data from August 1, 2018 through July
31, 2019.
---------------------------------------------------------------------------
In its most recent report to Congress, EPA reported that more than
50 percent of the rivers and streams it assessed are impaired.\8\
Nearly 80 percent of bays and estuaries assessed are impaired, as are
91 percent of ocean and near-coastal waters and 100 percent of the
Great Lakes' open waters.\9\ These areas do not yet meet the Act's goal
of making waters fishable and swimmable.\10\ They suffer from harmful
bacteria, nutrient pollution, and sediment overload that suffocate fish
and other aquatic wildlife.\11\ Based on EPA's own assessment, we are
far from reaching the objective of the Clean Water Act: ``to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters.'' By all accounts, more protection for clean water is
necessary if we are to achieve the Clean Water Act's objective.
---------------------------------------------------------------------------
\8\ See EPA, National Summary of State Information: Water Quality
Assessment and TMDL Information, http://ofmpub.epa.gov/waters10/
attains_nation_cy.control; EPA, National Water Quality Inventory: 4
Report to Congress (Aug. 2017).
\9\ Id.
\10\ Id.
\11\ Id.
---------------------------------------------------------------------------
This administration, however, is intent on making that objective
impossible to reach. This administration has proposed to dramatically
reduce the reach of the Act by narrowly defining the phrase ``waters of
the United States'' so that it would eliminate federal jurisdiction
over millions of acres of wetlands and thousands of miles of streams.
In addition to gutting federal protections, the agency proposes to
restrict states' abilities to protect their waters through the issuance
of 401 certifications, stripping states of an essential tool used to
ensure that federally approved projects comply with state law. The EPA
has also threatened to eliminate one of the means that citizens have
used to protect their drinking water from toxic pollution from
industrial sites; this spring, the agency reversed decades of agency
interpretation to conclude that indirect discharges of pollution
through hydrologically connected groundwater are not covered by the
Clean Water Act.
Still, the administration intends to go farther to pollute our
waters. EPA has postponed requirements to clean up wastewater from
coal-fired power plants, allowing more toxic pollution to flow into our
rivers. Soon, the administration is expected to propose allowing sewage
blending, or the dumping of partially treated sewage in our streams and
rivers--choosing to make swimmers, anglers, and boaters sick rather
than investing in essential infrastructure that is necessary to handle
waste responsibly.
With each of these attacks on our streams, rivers, and wetlands,
this administration shifts the burden of cleaning up pollution from
those who create it to the families and communities downstream--from
those most responsible and best equipped to control the pollution to
those most vulnerable to its harms and least able to defend against
them.
Although these varied attacks arise separately, their effect on our
rivers will be significant and cumulative. The Cape Fear River
exemplifies this problem. The Cape Fear is the largest river basin in
North Carolina. It drains more than 9,100 square miles as it flows from
central North Carolina to the Atlantic Ocean near Wilmington. The
headwaters of the Cape Fear begin in North Carolina's Piedmont region
and flow into the Deep and Haw Rivers. Those rivers merge into the Cape
Fear just below Jordan Lake--the drinking water supply for much of the
Raleigh- Durham-Chapel Hill area. From there, the river flows past
Fayetteville, the home of Fort Bragg, on to Wilmington and the beaches
of southeastern North Carolina.
Five examples from the Cape Fear illustrate the harm from this
administration's actions:
1. Flooding in Fayetteville, North Carolina. In 2016, Fayetteville
was devastated by a 1-in-500+ year flooding event during Hurricane
Matthew.\12\ Two years later, flooding from Hurricane Florence
surpassed the records set by Matthew.\13\ Under the administration's
proposed replacement for the Clean Water Rule, nearly half of small
streams in and around Fayetteville could lose protections; wetland
losses could be even more extreme. Loss of these streams and wetlands
would expose the city to increased flood risk.
---------------------------------------------------------------------------
\12\ Hurricane Matthew Annual Exceedance Probabilities, National
Oceanic and Atmospheric Administration (Oct. 18, 2016), https://
www.nws.noaa.gov/ohd/hdsc/aep_storm_analysis/AEP_
HurricaneMatthew_October2016.pdf.
\13\ Flooding: Fayetteville residents flee catastrophic flooding
as waters rise, Asheville Citizen Times (Sept. 16, 2018), https://
www.citizen-times.com/story/news/nation/2018/09/16/florence-
fayetteville-residents-flee-catastrophic-flooding-waters-rise/
1328023002/.
2. Construction and operation impacts from Mountain Valley
Pipeline-Southgate. The Federal Energy Regulatory Commission recently
released the draft environmental impact statement for a 70-mile gas
pipeline that would cross more than 200 streams and wetlands that flow
into the Haw River, one of the main tributaries to the Cape Fear River.
The project will require a 401 certification from the state of North
Carolina before a federal permit approving the project can be issued.
The administration's recently proposed restrictions on 401
certifications could significantly limit North Carolina's ability to
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enforce its state laws during that process.
3. PFAS contamination from The Chemours Company--Fayetteville
Works Facility. In June 2017, residents of southeastern North Carolina
learned that, for decades, DuPont and The Chemours Company had released
toxic GenX and other PFAS into the Cape Fear River without disclosing
it to state regulators or the public. More alarmingly, residents
learned that their new drinking water treatment plant could not filter
out the chemicals. The administration has failed to take meaningful
action respond this crisis or to prevent further PFAS contamination.
4. Coal ash contamination from the Sutton Steam Plant. For
decades, Duke Energy polluted Sutton Lake with coal ash wastewater,
contaminating the lake, the Cape Fear, and its neighbors' drinking
water. The utility viewed it as a waste dump and polluted the lake both
directly from its coal ash lagoons and indirectly through
hydrologically connected groundwater. While these discharges were
occurring, the public was told that it was a fishing lake, and the
state promoted the fishery.
That would have continued had citizen groups not intervened to
enforce protection for the lake. EPA has now taken two actions to
increase pollution from coal plants: it has reversed its longstanding
position that the Clean Water Act prohibits contaminating streams and
rivers through hydrologically connected groundwater and postponed
restrictions on toxic pollutants in coal plant discharges.
5. Sewage spills in the Cape Fear watershed. Last year, wastewater
treatment plants spilled more than 37 million gallons of untreated
sewage into the river. As with many systems across the country, the
dozens of wastewater treatment plants in the Cape Fear watershed need
to be upgraded. The administration's sewage blending proposal would
make dumping partially treated sewage an accepted practice--threatening
the health of people who use the Cape Fear and putting off essential
improvements.
II. The Clean Water Act of 1972 responded to a crisis.
The consequences of the EPA's efforts to gut the Clean Water Act
are best understood through the context that spurred its creation. By
the late 1960s, the Nation's rivers, lakes, wetlands, and streams
suffered mightily as a result of industrial pollution, municipal waste,
and indiscriminate filling.\14\ The Cuyahoga River was so polluted with
industrial waste, it caught on fire.\15\ Massive algae blooms choked
the Great Lakes, killing millions of fish and tainting the water
supplies of millions.\16\ Biologically, Lake Erie was ``dead.'' \17\
Wetlands were disappearing at an alarming rate, depriving coastal areas
and river valleys of critically important flood control protection and
ecological benefits.\18\ Of the estimated 221 million acres of wetlands
that were originally present in the coterminous states, more than half
had been lost to dredging, filling, draining, and flooding.\19\
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\14\ See, e.g., H.R. Rep. No. 92-911, at 1 (1972); S. Rep. No. 92-
414, at 7 (1971).
\15\ Id.
\16\ Id. (citing 138 CONG. REC. D612 (daily ed. Sept. 22, 1992)
(Prepared Statement of LaJuana S. Wilcher, Assistant Administrator for
Water, at EPA, Hearing Before the Committee on Environment and Public
Works, United States Senate)).
\17\ S. Rep. No. 111-361, at 1 (2010).
\18\ Id.
\19\ U.S. Fish & Wildlife Service, Wetlands: Status and Trends of
Wetlands in the Coterminous United States, Mid-1970s to the Mid-1980s
(1991).
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The proverbial race to the bottom was underway, and the public was
losing. Many of the states tasked with addressing water pollution had
shirked their responsibility. To remedy the national crisis, Congress
passed the Federal Water Pollution Control Act Amendments of 1972,
commonly known as the Clean Water Act. The Act marked a major turning
point.
Congress replaced the prior system--``a patchwork of ineffective
state laws, and the Federal Water Pollution Control Act that dated to
1948,'' \20\--with comprehensive legislation ``to restore and maintain
the . . . integrity of the Nation's waters.'' \21\ ``[T]o achieve this
objective,'' \22\ Congress listed seven broad goals, including
``protection and propagation of fish, shellfish, and wildlife,''
``recreation in and on the water,'' elimination of ``the discharge of
toxic pollutants in toxic amounts,'' and ``the control of nonpoint
sources of pollution.'' \23\ Congress also required the states or
federal government to adopt water quality standards for all waters
covered by the Act ``taking into consideration their use and value for
public water supplies, propagation of fish and wildlife, recreational
purposes, and agricultural, industrial, and other purposes, and also
taking into consideration their use and value for navigation.'' \24\
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\20\ S. Rep. No. 111-361, at 1 (2010).
\21\ Pub. L. No. 92-500, 101(a), 86 Stat. 816 (1972) (codified
at 33 U.S.C. 1251(a)).
\22\ 33 U.S.C. 1251(a).
\23\ Id. 1251(a)(1)-(6).
\24\ Id. 1313(c).
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III. The EPA's proposal to exclude streams and wetlands from federal
protection will harm our rivers, communities, and economy.
In what would be the biggest rollback in clean water protections in
the 47 years since the Clean Water Act became law, this administration
has proposed to redefine ``waters of the United States'' to drastically
restrict Clean Water Act jurisdiction, particularly over smaller
streams and wetlands. The administration's own analysis shows that
mining, energy, and development interests would be the greatest
beneficiaries of the proposal,\25\ while those downstream would
suffer.\26\ ``Waters of the United States'' is the jurisdictional
linchpin for virtually every one of the Act's critical safeguards,
including the Act's core prohibition established by section 301 against
the discharge of pollutants without a permit, the requirements
regarding dredge and fill material in section 404 of the Act, the
obligation that states develop water quality standards, and several
other key statutory provisions.\27\
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\25\ See U.S. Environmental Protection Agency and Department of
the Army, Economic Analysis for the Proposed Revised Definition of
``Waters of the United States'' at 96-97 (Dec. 14, 2018) (quantifying
permit requirements by industry) (EPA WOTUS Econ. Analysis).
\26\ Id. at 133.
\27\ See 33 U.S.C. 1311; see also 43 Op. Att.y Gen. 197, at 200-
201 (Sept. 5, 1979) (``The term navigable waters . . . is a linchpin of
the Act. . . . Its definition is not specific to 404, but is included
among the Act's general provisions.'').
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In proposing a drastic reduction in federal jurisdiction, the EPA
and U.S. Army Corps of Engineers diagrammed the numerous negative
consequences of their action.
Figure 1: Overview of potential environmental impacts to selected CWA
programs from proposed changes in CWA jurisdiction for certain
waters.\28\
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\28\ EPA WOTUS Econ. Analysis at 133 (Table IV-9).
Despite these substantial, widespread harms, the agencies continue
forward with the proposed new definition, frequently relying on the
hope that previously regulated entities will voluntarily continue more
protective practices.\29\
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\29\ See id. at 46, 88, 90, 92, 93, 107, 109, 113, 114, 115, 211
(relying on voluntary continuation of current requirements to avoid
harms allowed by the proposal).
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A. The proposed rule is based on a misreading of case law
and legislative history.
Two fundamental legal errors underlie this rulemaking. First is the
agencies' dependence on Justice Antonin Scalia's plurality opinion in
Rapanos v. United States \30\ as controlling--even though the opinion
was rejected by the majority of the Supreme Court. The agencies treat
it as binding even though, in the 13 years since Rapanos, no court has
found Justice Scalia's opinion to control. Instead, Justice Anthony
Kennedy's opinion sets forth the science-backed analysis that previous
Supreme Court case law requires. The approach outlined in the proposed
rule reverses decades of law and agency practice, but lacks any
meaningful, valid explanation for the agencies' departure.
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\30\ Rapanos v. United States, 547 U.S. 715 (2006).
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The second foundational fallacy is the agencies' assertion that
Congress intended for states to have sole jurisdiction over streams and
wetlands essential to achieving the Act's objective. That is not so.
Congress did the opposite. Faced with two competing proposals to define
the role of federal and state governments in implementing the Act,
Congress rejected an approach like the one proposed by this
administration--the abandonment of federal jurisdiction to give states
exclusive control when it comes to protections for smaller streams and
wetlands. Instead, Congress carefully defined the role of states by
giving states the authority to implement sections 402 and 404 of the
Act if their state programs meet federal minimum requirements, as well
as empowering states under section 401 of the statute. As our Supreme
Court has long recognized, when Congress speaks so clearly, ``that is
the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.'' \31\
---------------------------------------------------------------------------
\31\ Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 842-43 (1984).
---------------------------------------------------------------------------
With the Clean Water Act of 1972, Congress replaced the state-led,
risk-based regulatory scheme that only addressed pollution if it caused
``unreasonable harm'' with a framework based on regulating pollution
before it was discharged.\32\ At the time, Congress knew the states
could not be relied on to ``develop sufficiently tough regulatory
controls on water pollution to make real progress on cleaning up the
nation's rivers and lakes.'' \33\ Because the Clean Water Act of 1972
was intended as a ``total restructuring,'' \34\ to put the federal
government in the primary role for implementing the new water pollution
control system, Congress added section 101(a). ``Section [101](b) was
trumped by new [101](a), announcing a national goal to 'restore and
maintain' the nations waters.'' \35\
---------------------------------------------------------------------------
\32\ N. William Hines, History of the 1972 Clean Water Act: The
Story Behind the 1972 Act Became the Capstone on a Decade of
Extraordinary Environmental Reform, JOURNAL OF ENERGY & ENVIRONMENTAL
LAW 80 (Summer 2013).
\33\ Id. at 82.
\34\ See City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981)
(explaining that explained that the CWA was ``not merely another law
`touching interstate waters' '' but was ``viewed by Congress as a
`total restructuring' and `complete rewriting of the existing water
pollution legislation.' ''); see also id. at 318 (``Congress' intent in
enacting the [CWA] was clearly to establish an all-encompassing program
of water pollution regulation.); see also Middlesex Cnty. Sewerage
Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 22 (1981) (existing
statutory scheme ``was completely revised'' by the enactment of the
Clean Water Act).
\35\ Oliver Houck, Cooperative Federalism, Nutrients, and the
Clean Water Act: Three Cases Revisited, ENVIRONMENTAL LAW REPORTER, 44
ELR 10,426, 10,428 (2014), https://www.google.com/
url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=2ahUKEwi46Ivc9NH
hAhXJrFkKHe5jBKYQFjABegQIBhAC&url=http%3A%2F%2Fudel.edu%2F inamdar
%2Fnps2007%2FHouck2014.pdf&usg=AOvVaw1tAf6gLse2StebbO4VgkU_.
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Still, questions arose regarding the states' role under the new
act--the same questions that are raised by the EPA and U.S. Army Corps
of Engineers in the ongoing waters of the United States rulemaking.
Leading up to the 1977 amendments, the House of Representatives and
Senate took different approaches to resolving concerns about the role
of states under the Clean Water Act. The House bill dramatically
limited federal jurisdiction, leaving states complete discretion as
this administration has proposed in its waters of the United States
definition. The administration's proposal mirrors the 1977 House bill.
Much like the agencies, the House Committee on Public Works and
Transportation argued that ``[t]he activities addressed by section 404,
to the extent they occur in waters other than navigable waters . . .
are more appropriately and more effectively subject to regulation [by]
the States.'' \36\ To address these concerns, the House defined
navigable waters to significantly reduce federal jurisdiction.
---------------------------------------------------------------------------
\36\ H.R. 95-139 at 22 (1977).
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The Senate described the states' role within the statute with more
specificity. The underlying premise of the Senate's approach was that
``the discharge of waste directly into the Nation's waters and oceans
is permitted . . . only where ecological balance can be assured.'' \37\
The Senate bill did three things. First, it made clear that ``[t]o
limit the jurisdiction of the [act] with reference to discharges of the
pollutants of dredged or fill material would cripple efforts to achieve
the act's objectives.'' \38\ Second, it added the extensive exclusions
included in section 404(f).\39\ Third, it adopted an amendment to
implement the ``stated policy of Public Law 92-500 of `preserving and
protecting the primary responsibilities and rights of States [to]
prevent, reduce, and eliminate pollution.' '' \40\ That amendment did
so by providing ``for assumption of the permit authority by States with
approved programs for control of discharges for dredged and fill
material in accord with the criteria and with guidelines comparable to
those contained in 402(b) and 404(b)(1).'' \41\
---------------------------------------------------------------------------
\37\ S. Rep. 95-370 at 4 (1977).
\38\ Id. at 75.
\39\ Id. at 76.
\40\ Id. at 77.
\41\ Id.
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The Senate bill prevailed. In amending the Act, Congress created
``a State program . . . which is established under State law and which
functions in lieu of the Federal program'' as long as the program
complied with minimum federal standards.\42\ This was Congress's plain
intent for implementing section 101(b)--an intent that the
administration's proposal violates.
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\42\ Id. at 104.
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B. The loss of federal protections for streams and wetlands
would be devastating.
The importance of those minimum federal standards is magnified in
the South. Our Streams, rivers, lakes, estuaries, and oceans are
central to our region's history, culture, and economy. Those resources,
combined with the South's underfunded state water-quality programs,
make the region especially vulnerable to the loss of federal clean
water protections. North Carolina, South Carolina, and Georgia alone
have approximately 18 million acres of wetlands, many of which are
pocosins, Carolina bays, cypress domes, or other unique wetland types
that are only found in the South. These distinct regional wetlands were
appropriately granted clearer protection by the 2015 Clean Water Rule,
and are now at risk of destruction under the agencies' short-sighted
proposal.
The southeastern United States is a hotspot for vital species of
plants and animals, containing some of the most species-rich amphibian,
reptilian, and freshwater fish communities in North America.\43\ Our
fisheries and recreation industry benefit when small streams and
wetlands, which are integral for fish and wildlife habitat, are
protected. In 2011, in the six states where the Southern Environmental
Law Center works--Virginia, North Carolina, South Carolina, Georgia,
Alabama, and Tennessee--the U.S. Fish and Wildlife Service reported
that a total of $19 billion was spent on wildlife recreation, including
$5.7 billion on fishing; more than 15.9 million people participated in
recreational activities throughout the six-state region.\44\ The
Ecological Economics Journal estimates the Clean Water Act has been
responsible for adding as much as $15.8 billion in economic benefits
for the Commonwealth of Virginia, alone.\45\ And a host of Virginia
industries rely on access to clean water--including tourism, which
employs 350,000 Virginians and generates $18 billion for the
economy.\46\ In 2016 alone, tourism around our beaches generated nearly
$8 billion in gross domestic product and over 190,000 jobs.\47\
Recreational fishermen catch trout in our mountain streams, bass in our
piedmont lakes and streams, and any number of saltwater fish in our
extensive estuaries and beaches.\48\ Commercial fishermen fish our
estuaries and ocean waters, landing more than $300 million worth of
catch in 2017.\49\ Each of these parts of the southern economy depends
on clean water.
---------------------------------------------------------------------------
\43\ Clinton N. Jenkins et al., U.S. Protected Lands Mismatch
Biodiversity Priorities, PROCEEDINGS OF THE NATIONAL ACADEMY OF
SCIENCES, 5081 (2015); See Letter from K. Moser, SELC, to A. Wheeler,
EPA (April 15, 2019), Exhibit A: Guinessey et al., A Literature Review:
The Chemical, Physical and Biological Significance of Geographically
Isolated Wetlands and Non-Perennial Streams in the Southeast 11, 12, 28
(Apr. 12, 2019) (Literature Review), https://www.regulations.gov/
document?D=EPA-HQ-OW-2018-0149-9717 (last visited Sept. 12, 2019).
\44\ See U.S. Department of the Interior, U.S. Fish and Wildlife
Service, U.S. Department of Commerce, and U.S. Census Bureau. 2011
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation, 95-97 (Feb. 2014); see also Ex. A, Literature Review at 22.
\45\ Jim Epstein, Clean Water Is Vital for Success of Virginia
Business, The Daily Progress, https://www.dailyprogress.com/opinion/
opinion-column-clean-water-is-vital-
for-success-of-virginia/article_54a3fad0-71c6-11e4-ab71-
23593a302e82.html.
\46\ Id.
\47\ National Ocean Economics Program, Ocean Economy Data (GA, NC,
SC, VA) (2016).
\48\ See Pete Flood, Top 10 Fishing Spots in the Southeast,
Folding Boat Co. Blog, https://www.foldingboatco.com/blog/2017/4/11/
top-10-fishing-spots-in-the-southeast (last visited Sept. 11, 2019).
\49\ See NATIONAL MARINE FISHERIES SERVICE, ANNUAL COMMERCIAL
LANDINGS STATISTICS (AL, GA, NC, SC, VA) (2017), https://
www.st.nmfs.noaa.gov/st1/commercial/landings/annual_landings.html (last
visited Sept. 12, 2019).
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In addition to the impacts on tourism and industry, the agencies'
proposal threatens drinking water sources for seven out of ten
southerners, over 32 million people.\50\
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\50\ SELC GIS, Population Served by Drinking Water in the
Southeast--Methodology and SELC GIS Drinking Water Analysis Data
(collectively, ``SELC GIS Analysis'').
---------------------------------------------------------------------------
In the aftermath of hurricanes Matthew, Irma, Maria, Florence,
Michael, and Dorian--six major hurricanes that have hit the southeast
in the last four years--we have never depended more on our wetlands for
flood control and storm surge protection. With abundant coastlines,
lakes, marshes, and rivers, our communities and states stand to lose
the most if industries are allowed to dodge the basic protections that
keep our water clean and safe from pollution. We depend on consistent
minimum federal standards to safeguard clean water and protect our
communities, families and everyday life.
It is unacceptable and unrealistic to pretend that states will fill
the gap in protections that the administration proposes to create--
Southern states simply do not have the resources to protect the waters
at risk under the agencies' proposal. Our states have some of the
largest budget shortfalls in the country.\51\ Even when Southern states
are able to take action, they cannot address water quality issues on
their own. Virginia regulators, for example, have worked hard to clean
up the Chesapeake Bay. But without a strong, consistent level of
nationwide protections for clean water, that effort stands to be
undone. A patchwork of state laws would not maintain water quality in
the many tributaries feeding the Chesapeake Bay from multiple states,
and weaker protections imposed by other states would both unfairly add
to Virginia's burden and prevent progress in the Bay.
---------------------------------------------------------------------------
\51\ Truth in Accounting, Financial State of the States (September
2018).
---------------------------------------------------------------------------
C. The Cape Fear Region will be significantly affected by
the redefined waters of the United States.
The Cape Fear River is particularly vulnerable to the
administration's efforts to drastically reduce federal jurisdiction
over streams and wetlands. It is the largest watershed in North
Carolina, draining more than 9,100 square miles,\52\ and is home to
several larger municipalities (Greensboro, Burlington, Chapel Hill,
Sanford, Fayetteville, and Wilmington) and many larger rural
communities (Dunn, Clinton, Warsaw, and Burgaw). Along its 200 miles,
it travels through 26 of North Carolina's 100 counties. In total, the
Cape Fear watershed includes approximately 23,100 miles of streams and
rivers.
---------------------------------------------------------------------------
\52\ N.C. Dept. of Environmental Quality, Cape Fear River Basin,
https://deq.nc.gov/cape-fear-river-basin (last visited Sept. 11, 2019).
---------------------------------------------------------------------------
Many of those waters are threatened by the EPA's proposal to
redefine waters of the United States. According to data collected by
the North Carolina Department of Environmental Quality, 35 to 54
percent of streams in the Cape Fear watershed are small streams that
have no tributaries.\53\ Similarly, 20 to 46 percent of streams in the
watershed do not flow all year.\54\ These are the types of streams that
not only provide essential ecosystem services, they are most vulnerable
to being destroyed or polluted under the EPA's proposal. In addition,
the agency's proposal threatens many wetlands within the Cape Fear
watershed. The EPA estimates that there are more than four million
acres of wetlands in North Carolina,\55\ a significant portion of which
are in the Cape Fear watershed.
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\53\ See Letter from K. Moser, SELC, to A. Wheeler, EPA (April 15,
2019), Exhibit B, Appendix 2 at 10 https://www.regulations.gov/
document?D=EPA-HQ-OW-2018-0149-9717 (last visited Sept. 12, 2019).
\54\ Id.
\55\ EPA WOTUS Econ Analysis at 220.
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The communities along the Cape Fear cannot stand to lose the
floodwater storage and other ecosystem services provided by these small
streams and wetlands. From Fayetteville to Wilmington, residents have
experienced 500- to 1000-year flood events twice in the last three
years. In 2016, Hurricane Matthew caused record flooding in
Fayetteville. Less than two years later Hurricane Florence exceeded
those records in Fayetteville and caused such extensive flooding in the
Wilmington area that supplies had to be airlifted into the city. The
communities in this watershed cannot withstand the rampant stream and
wetland destruction that would occur under EPA's proposal.
IV. The EPA's proposed 401 certification regulations restrict states'
ability to protect their waters.
In re-writing the waters of the United States definition, the
administration claims to defer to states' ability to protect their
waters. With EPA's proposed 401 certification rules, it proposes to
take away the states' best tool for doing so. Section 401 of the Clean
Water Act ensures that states have a voice in federal decisions that
affect our rivers, streams, and wetlands. For those activities that
require a federal permit or license, the state where the project is
proposed has the opportunity to ensure that the project complies with
state laws.\56\ On August 22, 2019, EPA proposed a rule that would
limit states' authority to only those state laws that are part of a
federally approved program, would force states to make certification
decisions on compressed timelines even if they do not have adequate
information, and would grant federal agencies broad authority to reject
conditions on state-issued certifications that states have determined
to be essential.\57\
---------------------------------------------------------------------------
\56\ 33 U.S.C. 1341(d).
\57\ Updating Regulations on Water Quality Certification, 84 Fed.
Reg. 44,080, 44,081-82 (Aug. 22, 2019).
---------------------------------------------------------------------------
The faults in EPA's proposal are plain when looking at a recent
example: the Atlantic Coast Pipeline's 401 certification issued by the
state of North Carolina. The application for the certification was
submitted to the North Carolina Department of Environmental Quality on
May 9, 2017. That application was woefully inadequate. The Department
of Environmental Quality made five requests for more information
between September 14 and December 14, 2017.\58\ According to the state
agency, that information was ``necessary to continue to process'' the
application.\59\ Even with the five information requests, the agency
failed to collect adequate information on trenching methods, long-term
effects of construction, wetland standards, minimization efforts, or
restoration plans.\60\
---------------------------------------------------------------------------
\58\ See Letter from J. Poupart, NCDEQ, to L. Hartz, ACP, at 1
(Sept. 14, 2017), https://deq.nc.gov/news/key-issues/atlantic-coast-
pipeline (under heading ``Division of Water Resources'') (last visited
Sept. 11, 2019).
\59\ Id.
\60\ See, generally Letter from G. Gisler, SELC, to J. Poupart,
NCDEQ (Nov. 22, 2017), https://deq.nc.gov/news/key-issues/atlantic-
coast-pipeline (under heading ``Comments Submitted'') (last visited
Sept. 11, 2019).
---------------------------------------------------------------------------
Over the objections of many organizations, DEQ issued the
certification on January 26, 2018.\61\ The certification authorized
impacts to more than 450 acres of wetlands and nearly 7 miles of
streams.\62\ The certification also authorized significant impacts to
riparian buffers that are protected by North Carolina laws designed to
safeguard the Albemarle-Pamlico and Neuse estuaries from nonpoint
source nutrient pollution and harmful algal growth.\63\
---------------------------------------------------------------------------
\61\ Letter from L. Culpepper, NCDEQ, to L. Hartz, ACP (Jan. 26,
2018), https://edocs.deq.nc.gov/WaterResources/
DocView.aspx?dbid=0&id=623752&page=1&cr=1 (last visited Sept. 11,
2019).
\62\ Id. at 3.
\63\ See id. (describing riparian buffer impacts).
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The certification includes many conditions related to the project's
effects on streams and wetlands as well as state laws governing
nonpoint source pollution and drinking water wells. Two stream
crossings were eliminated.\64\ Conditions were added to reduce the
effect of other crossings.\65\ The certification required compliance
with North Carolina laws related to wildlife, sediment and erosion
control, and drinking water well protection.\66\
---------------------------------------------------------------------------
\64\ Id. at 4.
\65\ Id. at 7.
\66\ Id. at 6-8, 10-13.
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Had EPA's proposed 401 restrictions been in place, the ACP 401
certification would have gone down a very different path. First, EPA's
proposal suggests that state agencies may be limited in how long they
have to request information, potentially to as little as 60 days, and
limited in the types of information they can seek through those
requests.\67\ Second, the proposed rule would prevent DEQ from
evaluating the full breadth of impacts to water quality--excluding
important considerations for wildlife, riparian buffers, and well
owners.\68\ And although inadequate information and no certainty that
water quality standards will be met should be a sufficient basis for
denial of a certification, the proposal also gives federal agencies
significant authority to override a 401 certification denial.\69\
---------------------------------------------------------------------------
\67\ 84 Fed. Reg. 44,080, 44,115 (Aug. 22, 2019).
\68\ See id. at 44,105 (describing limitations on conditions).
\69\ EPA's proposed rule would, however, give federal agencies
extensive authority to override a 401 certification denial. 84 Fed.
Reg. 44,080, 44,110 (Aug. 22, 2019).
---------------------------------------------------------------------------
The ACP is not an isolated instance. DEQ will soon evaluate a 401
certification for the Mountain Valley Pipeline Southgate project. This
70-mile pipeline in the Cape Fear River's headwaters would cross more
than 200 streams or wetlands. DEQ's ability to meet state laws will
depend on the agency being able to collect adequate information and
impose conditions that fulfill the state agency's obligations. The
EPA's 401 proposal would prevent the agency from doing so.
V. The administration has failed to take meaningful action to address
existing and future PFAS contamination.
In the last several years, the list of states with extensive PFAS
contamination has grown. Perhaps the earliest and most notorious case
arose at DuPont's, and now Chemours', Washington Works Facility in
Parkersburg, West Virginia. In Colorado, Peterson Air Force Base has
been the focus. In Michigan, PFAS have been found in 10 percent of
drinking water systems.\70\ In Minnesota, 3M contaminated drinking
water in the Twin Cities.\71\ Drinking water in Vermont was
contaminated by Saint-Gobain Performance Plastics.\72\ In North
Carolina, the areas surrounding Wilmington and Fayetteville have been
the center of attention because of contamination from Chemours'
Fayetteville Works Facility.\73\
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\70\ Michigan PFAS Action Response Team, Michigan publishes first
state study of PFAS in water supplies (Aug. 16, 2019), https://
www.michigan.gov/som/0,4669,7-192-47796-
504965--,00.html (last visited Sept. 11, 2019).
\71\ See, generally Minnesota 3M PFC Settlement website, https://
3msettlement.state.mn.us/ (describing nature of 3M litigation and
settlement) (last visited Sept. 11, 2019).
\72\ Vermont Environmental Division, State Reaches Settlement With
Saint-Gobain: Company Agrees to Fund Waterline Extensions and Other
Remediation Measures on Bennington's East Side (April 10, 2019),
https://ago.vermont.gov/blog/2019/04/10/state-reaches-agreement-with-
saint-gobain-company-agrees-to-fund-waterline-extensions-and-other-
remediation-
measures-on-benningtons-east-side/ (last visited Sept. 11, 2019).
\73\ Toxin taints CFPUA water supply, Vaughn Hagerty, Wilmington
Star News (June 7, 2017), https://www.starnewsonline.com/news/20170607/
toxin-taints-cfpua-drinking-water/1 (last visited Sept. 11, 2019).
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In early 2019, the Environmental Protection Agency announced its
``Per-and Polyfluoroalkyl Substances (PFAS) Action Plan.'' The plan is
purportedly designed to respond to the ongoing crisis of public
drinking water contamination with these persistent, toxic, and
bioaccumulative chemicals, but fails in that task for at least two
reasons. First, it focuses primarily on only two of the thousands of
PFAS in existence. Second, it lacks any action that would prevent PFAS
or other emerging contaminants from being released into the
environment.
The primary focus of the potential regulatory aspects of EPA's PFAS
Plan center on perfluorooctanoic acid (PFOA) and perfluorooctane
sulfonate (PFOS) \74\--a scope that is too limited to benefit families
and communities that are often exposed to broad PFAS contamination.
Sampling data from the Cape Fear Public Utility Authority--a utility
serving more than 200,000 citizens in and around Wilmington, North
Carolina--demonstrate why such a limited focus is inadequate. According
to the utility's 2018 Annual Water Quality Report, sampling has
detected 21 PFAS in treated drinking water.\75\ Seven of those 21 PFAS,
on average, have greater concentrations than PFOA or PFOS. Under the
best-case scenario in EPA's PFAS plan, the agency will do nothing to
address the threat from 19 of the 21 PFAS in drinking water for more
than 200,000 people in southeastern North Carolina.
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\74\ See Environmental Protection Agency, EPA's Per- and
Polyfluoroalkyl Substances (PFAS) Action Plan at 3 (Feb. 2019), https:/
/www.epa.gov/pfas/epas-pfas-action-plan (last visited Sept. 11, 2019).
\75\ Cape Fear Public Utility Authority, 2018 Annual Water Quality
Report at 14, https://www.cfpua.org/Archive.aspx?ADID=777 (last visited
Sept. 11, 2019).
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Much of that contamination comes from The Chemours Company's
Fayetteville Works Facility, which sits on the Cape Fear River
approximately 55 miles upstream of the Cape Fear Public Utility
Authority's drinking water intake. Due to decades of waste
mismanagement, the Chemours site is thoroughly tainted with PFAS.
Groundwater seeps flowing into the Cape Fear River have been found to
be contaminated with at least 20 PFAS that exceed a combined
concentration of 670,000 parts per trillion (ppt)--several thousand
times higher than health advisory levels available for any PFAS.\76\
Action focused solely on PFOA and PFOS, as EPA has proposed in its PFAS
Plan, would do nothing to clean up Chemours' site.
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\76\ The Chemours Company, Chemours Submission Pursuant to Consent
Order Paragraphs 12 and 11.1, Attachment 2: Seeps and Creeks
Investigation, Figure 4A, https://www.chemours.com/Fayetteville-Works/
en-us/c3-dimer-acid/compliance-testing/index.html (last visited Sept.
11, 2019).
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Chemours is not, however, the only contributor of PFAS pollution to
the Cape Fear. Samples in the Haw River, one of the major tributaries
to the Cape Fear, have detected seven PFAS.\77\ Many of those PFAS are
found in greater concentrations than PFOA or PFOS and are ignored by
the EPA's PFAS plan.
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\77\ PFAS shows up in Haw River, Pittsboro water, but gets limited
local attention, Greg Barnes, North Carolina Health News (July 30,
2019), https://www.northcarolinahealthnews.org/
2019/07/30/pfas-shows-up-in-haw-river-pittsboro-water-but-little-local-
outcry/ (last visited Sept. 11, 2019).
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EPA's plan suffers an even more fundamental flaw--it fails to
prevent releases of PFAS into our waters as mandated by the Clean Water
Act. As made clear during the GenX crisis, state regulators cannot
implement the Act's pollution control standards if they do not know
what companies are discharging. North Carolina's Department of
Environmental Quality did not know Chemours was discharging GenX and
other PFAS. Yet EPA's PFAS Plan fails to prioritize full disclosure of
pollutants in industry wastewater.
Disclosure alone is not enough. EPA must reaffirm the technology-
forcing elements of the Act. In setting the ambitious goal of
eliminating all discharges by 1985, Congress made clear that the Act is
designed to improve pollution controls rather than simply require use
of commonly available methods. Technology-based effluent limits are the
``minimum'' level of pollution control required by the Act.\78\ As the
agency's regulations make clear in circumstances such as this, where
there are no effluent limitation guidelines for the pollutants at
issue, the permitting agency must conduct a case-by-case technology-
based limit analysis.\79\ As demonstrated in a study conducted at
Chemours' facility, technology exists to reduce PFAS to very low
levels.\80\
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\78\ 33 U.S.C. 1311(b).
\79\ 40 C.F.R. 125.3(c)(3).
\80\ The Chemours Company, Old Outfall 002 GAC Pilot Study Interim
Results Report at 4-5 (Aug. 5, 2019).
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EPA could, if it were serious about PFAS contamination, require
full disclosure of pollutants in industrial discharges, and mandate
that case-by-case technology limits must be imposed in each NPDES
permit that authorizes the discharge of PFAS or other emerging
contaminants. Instead, the agency's PFAS plan will allow PFAS pollution
to continue as the agency primarily focuses on two of the dozens of
chemicals that are known to contaminate drinking water in communities
across the country.
The cost of that inaction is significant. In response to the GenX
crisis, the Cape Fear Public Utility Authority and Brunswick County
have committed to spending more than $140 million to upgrade their
drinking water treatment plants.\81\ At least six cases have been filed
against Chemours, initiating litigation that will likely extend for
years, if not decades. And even though the facility has stopped
directly discharging its manufacturing wastewater into the Cape Fear,
PFAS continue to flow into the river through stormwater and
groundwater.
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\81\ See Brunswick County commissioners vote to immediately build
RO plant (May 10, 2018), https://www.brunswickcountync.gov/brunswick-
county-commissioners-vote-to-immediately-
construct-ro-plant/ (last visited Sept. 11, 2019); CFPUA Board OK's
steps to obtain construction bids, funding for long-term solution to
PFAS (April 10, 2019), https://www.cfpua.org/
CivicAlerts.aspx?AID=1019&ARC=2084 (last visited Sept. 11, 2019).
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None of this had to happen. Had Chemours disclosed what was in its
wastewater, the North Carolina Department of Environmental Quality
could have imposed pollution control requirements under the Act--
technology exists to capture PFAS on site. The federal agency's PFAS
Plan fails to require industry to do so.
VI. EPA's Interpretative Statement allowing pollution of waters through
hydrologically connected groundwater puts communities in
danger.
For decades, EPA took the position that the Clean Water Act's
strict prohibition of any discharge of any pollutant to waters of the
United States without a permit \82\ prevented discharges of pollution
through hydrologically connected groundwater.\83\ In April, the agency
reversed course,\84\ creating an exception that is not found anywhere
in the Act or its legislative history and has been rejected by the
overwhelming majority of courts.\85\
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\82\ 33 U.S.C. 1311(a).
\83\ See Upstate Forever v. Kinder Morgan Energy Partners, 887
F.3d 637, 651 (4th Cir. 2018).
\84\ Environmental Protection Agency, Interpretive Statement:
Application of the Clean Water Act National Pollutant Discharge
Elimination System Program to Releases of Pollutants from a Point
Source to Groundwater (Apr. 12, 2019), https://www.epa.gov/npdes/
interpretative-
statement-releases-pollutants-point-sources-groundwater (last visited
Sept. 12, 2019).
\85\ See Hawai'i Wildlife Fund v. County of Maui, 886 F.3d 737,
746-47 (9th Cir. 2018).
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The consequence of EPA's newly proposed exception, should it be
implemented, is clearest with two examples. In recent years, the issue
has most frequently arisen in situations where coal-fired power plants
chose to store millions of tons of coal ash containing toxic pollutants
in leaking, unlined pits next to major rivers. Predictably, the
groundwater that the ash sits in is contaminated with toxic pollutants
including arsenic, mercury, and selenium.\86\ Duke Energy, one of the
largest utilities in the country, chose to use these leaking pits
despite EPA's warnings in the 1970s that this reckless storage of ash
risked pollution of groundwater and surface water. As a result of
citizen groups stepping in where state and federal agencies have failed
to protect our rivers, energy companies have committed to excavating
more than 250 millions of tons of coal ash in the Southeast, including
ash at the Sutton Steam Plant on the Cape Fear River.\87\ EPA's effort
to insulate Duke Energy and other polluters who contaminate our rivers
through groundwater would limit future progress in keeping toxic
pollutants out of our waterways.
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\86\ See Cape Fear River Watch v. Duke Energy Progress, 25
F.Supp.3d 798, 802 (E.D.N.C. 2014).
\87\ See Southern Environmental Law Center, Coal Ash: Protecting
Our Water and Health from Coal Ash, https://
www.southernenvironment.org/cases-and-projects/coal-waste (last visited
Sept. 12, 2019).
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Chemours' Fayetteville Works Facility is another example that
demonstrates the potential harm from EPA's reversal. Groundwater at the
site is severely contaminated due to years of reckless handling of
PFAS-laden wastewater. Contaminated water has leaked through failing
wastewater pipes and settling ponds among other sources. As a result,
the groundwater at the site has been shown to have levels of GenX, one
of the more prominent PFAS at the facility, of 640,000 parts per
trillion. That groundwater flows directly into the Cape Fear River
through seeps that have been found to have GenX concentrations of
150,000 ppt.\88\ These levels of contamination far exceed North
Carolina's health advisory limit for GenX of 140 ppt. The groundwater
contamination is so extensive at Chemours' site that it continues to be
the primary contributor to PFAS contamination in the intake water for
several drinking water providers more than 50 miles downstream from the
site.\89\ The administration's PFAS action plan will not provide relief
to these and other communities with drinking water tainted by PFAS.
---------------------------------------------------------------------------
\88\ The Chemours Company, Chemours Submission Pursuant to Consent
Order Paragraphs 12 and 11.1, Attachment 2: Seeps and Creeks
Investigation, Figure 5B, https://www.chemours.com/Fayetteville-Works/
en-us/c3-dimer-acid/compliance-testing/index.html (last visited Sept.
11, 2019).
\89\ The Chemours Company, Cape Fear PFAS Loading Reduction Plan,
Attachment 1: Cape Fear River PFAS Loading Model Assessment and
Paragraph 11.1 Characterization of PFAS at Intakes at 24 (Aug. 26,
2019), https://www.chemours.com/Fayetteville-Works/en-us/c3-dimer-
acid/compliance-testing/index.html (last visited Sept. 11, 2019).
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VII. The administration's plan to allow partially treated sewage to be
discharged will make an existing crisis worse.
As a country, we have a wastewater infrastructure problem. Our
systems are old and failing. Small utilities, and some large utilities,
cannot afford to install modern collection systems and treatment
technology. One result of the infrastructure crisis is that wastewater
treatment plants are often overwhelmed during heavy rains, causing
untreated sewage to flow into our streams and rivers. Rather than
address that problem head-on, EPA has indicated that it will propose a
rule that will allow wastewater treatment plants to discharge partially
treated sewage during rain events.\90\ Blending, a practice in which
wastewater treatment plants divert waste streams around secondary
treatment and discharge partially treated sewage during rain events,
has the potential to create significant public health risks.
---------------------------------------------------------------------------
\90\ See Public Listening Session; Stakeholder Input on Peak Flows
Management, 83 Fed. Reg. 44,623, 44,625 (Aug. 31, 2018).
---------------------------------------------------------------------------
The agency has previously recognized that blending is not a
solution to inadequately sized or maintained systems. ``EPA anticipates
that, over time, the need to undertake peak wet weather flow diversions
at POTW treatment plants serving separate sanitary sewer conveyance
systems can be eliminated from most systems in a variety of ways, such
as by enhancing storage and treatment capacity and reducing sources of
peak wet weather flow volume.'' \91\
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\91\ National Pollutant Discharge Elimination System (NPDES)
Permit Requirements for Peak Wet Weather Discharges from Publicly Owned
Treatment Works Treatment Plants Serving Separate Sanitary Sewer
Collection Systems,70 Fed. Reg. 76,013, 76,015 (Dec. 22, 2005).
---------------------------------------------------------------------------
EPA has also recognized the risk of failing to properly address our
failing wastewater infrastructure. A 2010 study by EPA contractor Tetra
Tech found that, during blending, treatment plants are only able to
remove 71% of Cryptosporidium parasites and 40% to 88% of Giardia
parasites, while discharging very high levels of fecal coliform and
Enterococcus bacteria.\92\ Another study found that the risk of people
being exposed to adenovirus and Giardia when swimming, wading, and
fishing in waters receiving blended sewage flows were about ten times
greater than if the waste had received full secondary treatment.\93\
---------------------------------------------------------------------------
\92\ EPA, Draft Summary of Blending Practices and the Discharge of
Pollutants for Different Blending Scenarios at 9 (2014), https://
www.epa.gov/sites/production/files/2015-10/documents/
sso_lit_review_draft.pdf (last visited Sept. 12, 2019).
\93\ Water Environment Research Foundation, Characterizing the
Quality of Effluent and Other Contributory Sources During Peak Wet
Weather Events (2009).
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Now is the time to deal with our wastewater infrastructure. From
August 2018 through July 2019, more than 85 million gallons of sewage
spilled from wastewater treatment plants in North Carolina.\94\ In the
Cape Fear basin alone, 37 million gallons of untreated sewage were
released, much of it into waters classified as a public drinking water
supply.\95\
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\94\ SELC analysis of N.C. Department of Environmental Quality
statewide sanitary sewer overflow data from August 1, 2018 through July
31, 2019.
\95\ SELC analysis of N.C. Department of Environmental Quality
Cape Fear basin sanitary sewer overflow data from August 1, 2018
through July 31, 2019.
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In the Cape Fear, that sewage combines with runoff from hundreds of
industrial swine and poultry operations, causing the river to be listed
as impaired under section 303(d) of the Clean Water Act because it
cannot support its natural fish and invertebrate community. Approving
regular discharges of partially treated sewage will only make this
impairment worse while exposing the thousands of people who swim, fish,
or boat in the Cape Fear River to unsafe levels of pathogens.
VIII. The nation cannot achieve the goal of the Clean Water Act if this
administration's efforts are successful.
Protecting clean water requires everyone to do their part. The
Clean Water Act was written to ensure that everyone does, from
industrial dischargers to nonpoint sources. This approach has had great
success, though we still have significant work to do if we are to
achieve the Act's goal of fishable, swimmable waters nationwide. This
administration's actions will make that goal unattainable. The
combination of abandoning federal authority, limiting state authority,
and creating vast loopholes in the Act will strip agencies of the tools
they need to protect the places we swim, fish, and get our drinking
water. By shifting the burden of pollution from those who create it to
families and communities downstream, this administration would take us
back to the era before the Clean Water Act. I ask this subcommittee to
defend the Clean Water Act and stand against this administration's
efforts to dismantle it.
Mrs. Napolitano. Thank you very much for your testimony. We
have votes called already, but we are going to go ahead with
the questioning, and then we will recess for about half an hour
before we go vote.
My question to Mr. Kopocis is you talked a lot about maps.
Based on your experience as the former head of EPA's Office of
Water under the Obama administration, what challenges are posed
by Mr. Ross' desire for maps? Are there other tools that the
EPA has today that the Agency can use to show the waters' core
protection is lost by the Trump rule?
Mr. Kopocis. Thank you for that question.
Yes, the question of developing maps for the Clean Water
Act jurisdiction goes as far back as there was legislation
before this committee in the 1980s to do that. What we found
back then--and things haven't changed--is that, first of all,
developing national maps of jurisdictional waters would be
prohibitively expensive. It would also require on-the-ground
visits by people to make jurisdictional determinations.
Notwithstanding what Mr. Ross said, it is not going to be
possible to do satellite images or to use existing data. Most
jurisdictional determinations are made by somebody going out
onto the property to find out if it is jurisdictional. So that,
to make a national map, you would then have to put people on
the ground onto people's property who may have no interest in
knowing whether there is a jurisdictional water or not; because
they are not planning to pollute it or destroy it, they don't
need a permit.
So you would require a physical intrusion onto property all
across the Nation anywhere there might be a water feature
subject to the Clean Water Act, even to find out if it is not
jurisdictional under the Clean Water Act. And because most
people undertake their daily activities without triggering any
Clean Water Act responsibility, you would be mapping thousands
of miles of streams and millions of acres of wetlands for no
particular purpose because nobody plans to do anything with
them.
Now, if somebody can come up with a way to do maps, I
agree. Everybody would love it, but the hurdles are immense.
Mrs. Napolitano. Thank you. Thank you, Mr. Kopocis.
Ms. Bellon, in your testimony, you mentioned the Trump
administration is repealing the State of Washington's water
quality standards to protect human health from toxins in fish.
It seems to me the State of Washington knows more about
protecting the citizens' health than the administration.
What legal standing does the Trump administration have to
or by what legal standards can the Trump administration repeal
the State's previously approved water quality standards? And if
there is no legal standard for repealing those standards,
surely they are basing their decision on science. What science
has the administration presented to repeal the State's water
quality standards?
Ms. Bellon. They have no legal standing to repeal
Washington State's fish consumption rule, otherwise known as
our Human Health Criteria.
There are two standards under the Clean Water Act for when
EPA can reach into a State into a previously adopted rule that
that State chose, based on the circumstances, the waters, the
beneficial uses, the population, and in our State, for Treaty
Tribes to determine that that State rule should be repealed.
There are two circumstances that they could have done that.
Neither exists at this time.
One is that if we ask them to come in and repeal or revise
based on a set of circumstances, which we have not or, two, if
they determine essentially that the Clean Water Act is not
being met, and these are protective standards that are meeting
the law and the intent of the Clean Water Act.
So it is such a dichotomy. For me to sit here today and
hear the issue raised about a State's rights and let's revert
to State's rights so that we can get States to have a better
handle and let them look at these things in terms of their
particular view but then to come in and surgically repeal a
rule that has been on the books in our State for 3 years that
we spent 10 years adopting and getting on the table to answer
and deal with water quality issues by virtue of Washingtonians'
fish consumption.
Mrs. Napolitano. Thank you very much for your answer.
Mr. Westerman.
Mr. Westerman. Thank you, Chairwoman Napolitano.
And thank you to the witnesses for your testimony.
I have got some pictures I would like to show, and we seem
to get wrapped around the wheel a lot on regulations and what
they mean, but I want to talk about something that is happening
in my State that Secretary Keogh may or may not be aware of,
but what you see here is a photograph of a water irrigation
system. This is surface water coming right out of the Arkansas
River. You can see it has got kind of a brown color to it. It
has got quite a few nutrients in it.
[Slide.]
If you don't know the geography, the Arkansas River flows
into the Mississippi River, which goes into the gulf. So the
algal blooms and the things we see in the gulf, a lot of that
is attributed to nutrients flowing downstream.
I wanted to show this because this shows what the private
sector is doing, how they are usually way ahead of us. And
there are a lot of benefits to a surface water irrigation
system like this. Number one, this is in rice country. If you
know, it takes a lot of water to grow rice. For years, we have
pumped water out of the Sparta aquifer to flood those rice
fields, also to do other row crop irrigation. That aquifer is
depleting, which it is very pure drinking water. A lot of areas
rely on that water for drinking. So getting water out of the
river versus the Sparta is a good thing.
Also, if we could do something to clean this water up, what
you see in this picture is the same water.
[Slide.]
It has just been through this irrigation district. And
simply what they do is they use the water over and over. They
capture the tail water off of one crop. They pump it back into
the reservoir. They move it down and irrigate another crop. The
success story of this is it has also been able to cut the
irrigation costs in half for farmers who are in this water
irrigation district. It doesn't require Sparta water, and it is
obviously removing sediments and nutrients out of the water,
and the only water that you are losing through the irrigation
loop is a little bit of infiltration and evaporation. So this
water would end up back in the Arkansas River, flowing
downstream.
I show this because one problem that is being faced here is
that there appears to be considerable opportunities for
establishing water quality trading programs around the Nation.
And my question is, why aren't we seeing more trading occurring
currently if we look at nutrient trading and nutrient offsets?
What are the main impediments to establishing a successful
water quality trading program?
And, Secretary Keogh, I will ask you that first, what you
see on the State level. Then I will open it up to the other
panelists.
Ms. Keogh. Thank you, Congressman.
Arkansas is committed and has formed a nutrient trading
rulemaking committee now through the Pollution Control and
Ecology Commission to advance nutrient trading, as you speak
to, understanding that that has true benefits potentially for
nutrient management, both to deal with the Arkansas/Oklahoma
issue I mentioned in testimony but also as we look at the gulf
hypoxic zones.
So we look forward to those advancing. I think the barriers
at this point have been somewhat at the Federal level, and I
know that this administration has spent and recently reissued a
direction to the States on how to implement a watershed
management system that could invoke or encompass a trading
regime. So we look forward to working with EPA on that.
We believe, in today's world, our ag community, as well as
our industry, understands that a strong economy for them relies
on effective and strong environment. And, likewise, we believe
that effective, strong environment leadership is benefited by a
strong economy. So we look forward to that opportunity to tap
into those.
Mr. Westerman. Any other panelists have any expertise in
this area and would like to make a comment?
Mr. Kopocis. If I could, Mr. Westerman, the concept of
trading has been around for quite a while. It has met with
modest success is how I would characterize it. It is a couple
of different reasons, often centering around enforceability,
accountability, and responsibility. We have found that, in some
instances, the agricultural interest is not interested in being
part of the regulatory program, even though they may be
stepping in to take on a responsibility of reducing nutrient
loads.
So there needs to be a way to bring people in without them
having the fear that they are somehow going to become the
regulated entity, and that has been a difficult hurdle for the
States and for EPA to overcome.
A lot of these trades are based on modeling, and there is
some uncertainty. You can measure what comes out of a treatment
plant. You can test it and measure it, but you have to model
for these kinds of trades that use agricultural lands and that
has not been particularly successful yet either. I think
conceptually it has a lot of promise. I mean, it is very
similar to what the air program has for cap and trade.
I think what you will see as TMDLs come online, there will
be a financial incentive for those who are regulated point
sources to participate within nonregulated, nonpoint sources in
the agricultural sector to reduce the nutrient loadings at a
lower cost per unit of reduction, but there has to be some
forcing mechanism, and that accountability has to be figured
out among the parties.
And I, really, again, I think it is a good concept, but
those are the hurdles that I see.
Mr. Westerman. Thank you. I am way over my time, and I
think I am going to vote. Are you going to----
Mr. Delgado. Yes, I have some questions.
Mr. Westerman. OK.
Mr. Delgado. You can head out.
Mr. Westerman. We will return.
I retract that last statement.
Mr. Delgado [presiding]. Thank you.
I will give myself 5 minutes for questioning.
I want to just focus, Mr. Hickey, on your testimony. You
came back to common sense, and I think you showed a lot of
grace in response to Mr. Ross' testimony.
My takeaway from the testimony was that, despite the fact
that we know--the science has made it clear--that PFAS can
cause cancer and can lead to thyroid conditions and autoimmune
disorders, despite this fact, he appeared and the EPA, at least
at this point, seems unwilling to at least just go on the
record and say, ``We will provide an MCL,'' not what the MCL
will be, but that, despite we know what this toxin can do to
people, people are losing their lives, we can't even go on
record and common sense and use our judgment to say, ``Hey, you
know what? We will land at some point on an MCL.''
And that to me I find profoundly frustrating and a
disservice to the public. I like--and I know you had to stop
your testimony. We can talk about the science, and we can talk
about the numbers and the parts per trillion and what that all
means, but I think there is nothing more powerful than hearing
stories like yours and understanding the impact that it has on
communities and what the community feels in terms of its
connection to agencies like the EPA. And you spoke about the
night-and-day reality that you have experienced, that I imagine
others in your community have experienced on this critical
issue.
So I just want to give you back the floor, and if you would
like to speak a little bit to what it feels like, what it means
for you and the community back in Hoosick Falls to have to
engage at this juncture with all the mounting evidence and
science with an agency that seems uncommitted to its mission.
Mr. Hickey. Thank you.
You know, we have, me and you have had multiple
conversations about this in the past. And MCL, it really
honestly seems crazy, right? The number keeps trending lower,
but it is a carcinogen we are talking about. So how much water
do you want to give your children that causes cancer? You know,
it is a crazy question, right, so that we even have to even
consider giving our children water that causes cancer, you
know. So zero really should be the MCL with these chemicals.
There shouldn't be any question about it.
I think, right now, the debate with PFAS--and you are
comparing it much to the tobacco industry at this point, these
chemicals versus tobacco. They are similar, right? Cancer, we
know they are causing cancer, but the difference is tobacco is
a consumer's choice. Water is not, and that is the big
difference that we have.
And over the time, over the 5\1/2\ years that I have been
working on this now, I spent a tremendous amount of time
obviously on it. And I have actually felt guilty at times. Why
wasn't I involved in this sooner? Why didn't I get involved
earlier? But all the science that keeps evolving, you are
having more and more States that are getting involved, and
there are more contaminations that are being found, and there
is no science that is saying that this is good for us. None of
it is evolving into saying that these chemicals are going to be
positive in the future. There hasn't even been one, right?
So, you know, and the problem is, is that there are 5,000
of them. So there is always one on the back burner, and we are
seeing the smaller chains get through the carbon filtration,
and that is going to be our problem. So now it is me, as an
advocate, I am questioning: Did we do the right thing about
PFOA? Should we have had them stop using it, or should we
continue to have them use that? Because we don't know what we
are getting next. At least we have the science on what PFOA
was. We don't know what is going to happen like in the Gen X
situation. You know, there is science now that is ruling out,
but there is a chemical behind Gen X, too.
So we have these years and years, and we are going to
continue to fall behind with the next chemical. So you are
making a deal with the devil, I guess, right? You have to
choose one or the other because these products are in, these
chemicals are in everything that we use. We are never going to
be able to completely eliminate them.
We need to figure out how to stop them from getting into
the air, getting into the ground. Why are we not talking about
the sources they are coming from? We are talking about pulling
them out of the water after they get there. Why are we not
concentrating more about how they get there? They came out of
the stacks in Hoosick Falls. We should have stopped it from
coming out of the stacks, you know. There are spray booths in
painting, right, that you prevent the aerosol from getting out
into the air. Why are we not doing that with these chemicals?
It is just common sense, I think. We are overcomplicating it,
and we are causing more years and years of research that we
don't need, that is already there. It is a frustrating process.
Mr. Delgado. Well, I appreciate you saying all of that. And
I think it speaks to the fact that, more than anything, the
lack of urgency, the lack of prioritization. People can't
choose, as you so eloquently put it, to drink water. It is the
lifeline. It is essential to our existence. There is no way
around that fact. If there is anything the public should be
afforded is a Government that promotes its welfare, that
protects it welfare. And we need to draw a line in the sand on
some of these matters and not make them partisan. Some things
aren't partisan when it comes to life.
And so I really appreciate what you said. I appreciate your
advocacy. And I encourage you, despite the difficulties that
lie ahead, despite the cynicism that can certainty settle in at
times, to keep fighting and to know that there are folks here
that are in this fight with you.
Thank you.
I ask unanimous consent that the record of today's hearing
remain open until such time as our witnesses have provided
answers to any questions that may be submitted to them in
writing.
No objection.
I ask unanimous consent that the record remain open for 15
days for any additional comments and information submitted by
Members or witnesses to be included in the record of today's
hearing.
Without objection, so ordered.
I would like to thank our witnesses again for their
testimony today. If no other Members have anything to add, the
committee stands adjourned.
[Whereupon, at 1:49 p.m., the subcommittee was adjourned.]
Submissions for the Record
----------
Prepared Statement of Hon. Sam Graves, a Representative in Congress
from the State of Missouri, and Ranking Member, Committee on
Transportation and Infrastructure
As a sixth-generation farmer, I know firsthand the importance of
being good stewards of the land and water. Clean and reliable water is
essential to protecting the public health, growing local economies, and
conserving the environment.
To that end, EPA plays an important role in supporting and
protecting this vital resource, but it should do so in partnership with
farmers and other stakeholders. This collaboration will yield the best
results.
For example, just last week, I was able to speak at an event with
Administrator Wheeler and Assistant Secretary James on the repeal of
the Obama WOTUS rule.
The repeal of the Obama WOTUS rule was welcomed by farmers, small
business owners, landowners, and many others--not only in my district
in North Missouri, but all over the country--because of that rule's
massive federal overreach.
I am thrilled that this Administration listened to those farmers
and small businesses about the extreme challenges this rule would have
imposed and decided to get rid of it. I look forward to learning about
the other initiatives this Administration is undertaking, in
partnership with stakeholders, to protect our water resources in a more
pragmatic way.
Prepared Statement of Hon. Eddie Bernice Johnson, a Representative in
Congress from the State of Texas
Thank you, Madam Chairwoman.
It is with great appreciation that I thank the Chairwoman for
holding this hearing today, as it allows us to hear from an EPA witness
for the first time about the Clean Water Act since this Administration
came into office in 2017.
For two generations we have relied on the EPA to be the Federal
Agency to protect the public and the environment from the pollution
that comes with being an industrial society. And it is vitally
important that EPA keep working to protect public health and improve
our environment.
Throughout my career I have fought to ensure that future
generations have access to clean water. My work on the House Science,
Space and Technology Committee includes introducing clean water
research bills to help focus the Federal Government's research efforts
on clean water, a critical natural resource that we too often take for
granted.
Contrary to the spirit of the law and EPA's mission, this
Administration is attempting to rollback the progress made in
maintaining clean water by yielding to industry demands in increasing
permitted levels of pollutants in our water. History has shown that
low-income communities disproportionately suffer the most with higher
level of pollutants in their drinking water.
For instance, a clear definition of what is considered ``waters of
the U.S.'' is important to protecting public health and the
environment. This Administration's repeal of the 2015 Clean Water Rule
and its plans on replacing it with a narrower definition of waters of
the U.S., would lead to less bodies of waters being protected under the
Clean Water Act. With fewer bodies of water protected, it could
endanger sources of clean drinking water for millions of Americans as
well as wetlands that support hunting and fishing. By allowing certain
rain-fed or seasonal streams to fall outside the jurisdiction of the
Clean Water Act, we could potentially adversely impact 117 million
Americans whose public drinking water supplies rely on these sources.
Congress' oversight role is critical in finding out what EPA is
doing and to get a full accounting of their actions. We are entrusted
by the American people to ensure that EPA is working in a way that is
beneficial to the public rather than yielding to the political pressure
of industry polluters.
I look forward to hearing the testimony from the EPA witness to
understand why they are undermining the Clean Water Act. I am also
eager to hear from the other witnesses today to learn how EPA's actions
are impacting their ability to have clean and safe drinking water.
Thank you. I yield back.
Letter of September 16, 2019, from Neil L. Bradley, Executive Vice
President and Chief Policy Officer, U.S. Chamber of Commerce, Submitted
for the Record by Hon. Bruce Westerman
September 16, 2019.
Hon. Grace Napolitano,
Chairwoman,
Subcommittee on Water Resources and the Environment, U.S. House of
Representatives, Washington, DC.
Hon. Bruce Westerman,
Ranking Member,
Subcommittee on Water Resources and the Environment, U.S. House of
Representatives, Washington, DC.
Dear Chairwoman Napolitano and Ranking Member Westerman:
The U.S. Chamber of Commerce appreciates the Committee holding the
hearing, ``The Administration's Priorities and Policy Initiatives Under
the Clean Water Act.'' The Chamber is committed to proactively working
with legislators, regulators, and stakeholders alike to ensure that the
Administration implements and enforces all relevant policies and
procedures in accordance with Congress's intent when enacting the Clean
Water Act (``CWA''), as this is a key priority and essential to
building economic prosperity and growth for our member companies and
the communities where they operate.
Today's hearing addresses a number of issues important to the
business community, and is aligned with the Chamber's Business Task
Force on Water Policy principles. When it comes to water policy, as
detailed in the attached document, the Chamber supports increased and
sustained funding and expanded opportunities for financing, regulatory
flexibility and efficiency of service, resilience, small communities
and small business needs, and technology innovation.
Notably, the Chamber applauds the Environmental Protection Agency
(``EPA'') and U.S. Army Corps of Engineers for their recent actions to
repeal the 2015 ``Waters of the United States'' (``WOTUS'') rule and
recodify the preexisting regulations. The 2015 WOTUS rule significantly
expanded the definition of navigable waters well beyond what Congress
intended, creating great uncertainty for states, local governments,
businesses, and farmers. We look forward to working with those Agencies
as they promulgate a new rule that properly defines WOTUS in a manner
that provides certainty and clarity for stakeholders and builds upon
existing standards to improve water quality.
The Chamber also supports EPA's recent actions to develop a clear
and predictable water quality certification process under section 401
of the CWA that comports with Congressional intent and does not
unnecessarily delay the permitting process for interstate
infrastructure projects, as well as its guidance clarifying that
releases from industrial activities that reach WOTUS via groundwater
are otherwise not regulated under the CWA's point source program.
Lastly, the appropriate regulation of per- and polyfluoroalkyl
substances (``PFAS'') is extremely important to the Chamber and its
members, and the Chamber supports EPA's ``PFAS Action Plan,'' released
earlier this year. The PFAS Action Plan is the most comprehensive
cross-agency plan to address an emerging chemical of concern that EPA
has ever released and provides the clear roadmap needed to address this
important issue.
With that said, it is imperative that any Congressional action
taken to address the regulation of PFAS does not circumvent existing
regulatory authorities and regulate PFAS as a single class. EPA must
retain its traditional authority to assess the array of PFAS and
ascertain which among them should be regulated through ongoing Agency
efforts.
Sincerely,
Neil L. Bradley.
cc: Members of the Subcommittee on Water Resources and the Environment
``Policy Priorities and Proposals Summary,'' Business Task Force on
Water Policy, U.S. Chamber of Commerce, Submitted for the Record by
Hon. Bruce Westerman
Business Task Force on Water Policy
policy priorities and proposals summary
Water is among our most precious resources, one that is essential
to health and human life. Businesses and communities depend on it to
drive the American economy, and significant investments in water
infrastructure are needed in the U.S. and around the world. While many
organizations have worked over the years to advance water
infrastructure investments, an integrated coalition led by businesses
and other key water and finance sector partners is required.
The U.S. Chamber of Commerce launched the Business Task Force on
Water Policy to catalyze support for water infrastructure investments
in the U.S. and elevate water in the national policy discussion.
Business as usual and relying on government funding alone will not
solve this fundamental challenge.
principles
Below are policy principles that will meet American businesses'
water and wastewater infrastructure needs for generations to come and
make the U.S. a leader in bringing clean water and sanitation to the
world:
Increased and sustained funding and expanded
opportunities for financing--promoting increased federal, state, and
local investments in infrastructure modernization and mobilizing
private capital.
Regulatory flexibility and efficiency of service--
proposing commonsense, flexible policies to improve the enabling
environment for businesses to continue creative and innovative
approaches.
Resilience--facilitating resilient infrastructure,
including water and watershed management and flood control, through
funding and policies to support predisaster mitigation and engaging
experts and stakeholders.
Small communities and small business needs--providing
investments and policy solutions specifically focused on the needs of
the agricultural sector, small communities, and small businesses,
including improving access to water and sanitation in rural areas.
Technology innovation--increasing innovation and its
adoption by reducing barriers to implementation, promoting effective
utility management, and helping communities achieve the scale and
expertise necessary to deploy technology through additional technical
assistance and cooperative arrangements. This effort also supports
funding the creation of a National Water Infrastructure Test Bed
Network (TBN), establishing a national program for collaborating and
sharing best practices, and promoting exports of water technologies,
products, and services.
These principles underscore the task force's interest in the One
Water approach \1\ to integrate and optimize the use of our finite
drinking water, wastewater, and stormwater resources to create a more
resilient water future.
---------------------------------------------------------------------------
\1\ The One Water approach envisions managing all water in an
integrated, inclusive, and sustainable manner to secure a bright,
prosperous future for our children, our communities, and our country.
One Water is a transformative approach to how we view, value, and
manage water--from local communities to states, regions, and the
national scale. http://uswateralliance.org/sites/uswateralliance.org/
files/publications/
One%20Water%20for%20America%20Policy%20Framework%20Executive%20Summary_0
.pdf
---------------------------------------------------------------------------
priorities and proposals
Following are the business community's 2019 water infrastructure
and management priorities:
Provide appropriations to maximize federal water
infrastructure investments. While AWIA included a solid beginning to
meet water infrastructure needs nationwide, full funding for the SRFs,
WIFIA, and the 32 new water management programs is a top priority.
Expand opportunities for partnerships. Congress should
harness the authorized, but underutilized WIFIA program and increase
its size to support more loan guarantees. To leverage the beneficial
impacts of this program, preference should be given to those projects
that encompass cooperative arrangements among utilities or that bring
private investment to complement the financing of the project. Policies
should encourage cooperative arrangements, including those that will
more efficiently marshal scarce resources and mobilize private capital.
Specific steps follow:
Expand WIFIA and provide associated funding for USACE,
USBR, and other water-focused agencies as appropriate.
Help states create appropriate legal frameworks for
deals to occur and replicate.
Prioritize regional projects and project bundling for
SRF and WIFIA funding.
Provide technical assistance to small and rural
systems, focusing on developing bankable projects of interest to
private investors.
Remove barriers to public-private partnerships (P3s):
Provide eligibility for private utilities for SRF
funding.
Remove constraints on asset sales/leasing, such as
bond defeasance penalties.
Offer legislative safe harbor for acquirer of systems
that are out of compliance with regulations.
Provide off-site, alternative compliance stormwater
solutions. EPA should provide flexibility for companies to provide off-
site stormwater management solutions, including green infrastructure,
water quality trading, a stormwater bank, and water reuse. Green
infrastructure should be made an explicit eligible activity under Land
and Water Conservation Fund programs. Outcomes-based financing should
be considered to promote private sector investment and leverage federal
funding in green infrastructure or other relevant solutions.
Promote water reuse and recycling and remove outmoded
barriers to its use. EPA should eliminate the classification of
Advanced Treated Water as ``a discharge of pollutants'' under the Clean
Water Act and regulate it under the Safe Drinking Water Act.
Support full funding for the WaterSense program. Congress
should fund this effort promoting water conservation technologies and
products and incentivizing consumer adoption.
Remove barriers to U.S. government collaboration on water
data and resilience. U.S. government science agencies (e.g., EPA, FEMA,
NOAA, NSF, USACE, and USGS) should have specific authority to work
together and share water data and information perhaps modeled after the
National Drought Resilience Partnership and the new water subcabinet to
meet their mission requirements.
The task force also proposes additional legislative or
administrative authority to ensure that appropriate resilience and
national security agencies are encouraged to team up to implement
resilient water infrastructure and establish a framework for
collaboration and deployment of innovative resilient technologies:
Develop a water data-sharing platform to improve
accessibility and usability for federal, regional, state, and local
decision makers.
Utilize evidence-based decision making to ensure that
water solutions account for economic impact.
Address governance of data collection, quality,
storage, exchange, analysis, and use, including funding and cost
recovery options, to clarify data ownership and the responsibilities of
relevant government agencies.
Promote the development of cybersecurity technologies
to protect critical water infrastructure from cyberattacks.
The task force calls on Congress to establish a federal
pilot program to enhance the mapping of urban flooding and associated
property damage, including the potential modeling of the impact of
extreme weather events and the availability of such mapped data for
homeowners, businesses, and communities to understand and mitigate the
risks of increasing urban flooding.
Support development and funding for a TBN. Congress
should authorize and fund the creation of a national water
infrastructure TBN, to promote greater uptake of 21st century water and
wastewater technologies. The TBN would bring together the broader water
community (e.g., regulators, operators, and consulting engineers) and
engage them in piloting and demonstration efforts to raise confidence
in and verify performance for innovative technologies. The TBN could
also serve as a national clearinghouse for technology that meets or
serves as best available technology for meeting regulatory
requirements.
Provide $20 million in funding for the National
Priorities Water Research Grant Program. The task force suggests
increased funding for this program, with its cost share requirements,
to address priority drinking water, wastewater, water reuse, and
stormwater research needs.
Encourage NIST's Water Quality and Efficiency Research.
Congress should recommend that NIST support additional research to
update the current body of decades-old data regarding on-site plumbing
design. Consideration should be given to gathering and assessing new
technical information to ensure that systems are designed, installed,
and operated to maximize water efficiency, water quality, and energy
efficiency.
Provide additional flexibility for the environmental
trade working group to focus on water. The administration should
utilize the existing ETWG mechanism to promote export opportunities for
U.S. water technology innovation by boosting U.S. government commercial
diplomacy to expand the export of U.S. technologies and expertise, such
as reverse trade missions and engagement with U.S. embassies and
missions in key markets.
Open international markets to water-related U.S.
technologies and approaches. The task force supports funding for the
Department of Commerce's Market Development Cooperator Program (MDCP).
It is an important tool in achieving the vision of the U.S. government
Global Water Strategy, addressing trade barriers, encouraging
innovation, increasing exports, and ensuring global competitiveness.
Support funding and expansion of current water and
wastewater apprenticeship and other workforce development initiatives.
The SDWA includes several set-asides related to the certification and
training of water operators. Congress should reinforce that authority
by tasking EPA and the Department of Labor to fund and expand water-
focused career paths and apprenticeship programs.
Encourage the use of effective utility management,
including full-cost accounting. Consideration should be given to
proposals for federal funding that include a utility's full cost of
operation, such as those costs associated with systems leaks, as
essential first steps in making the cost-benefit case for the
deployment of new technologies and funding.
Ensure the equal treatment of water efficiency rebates
under tax law. Rebates from energy utilities are tax-exempt, but not
rebates from water utilities. With the rapid growth of water-saving
programs, millions of Americans face an unexpected tax bill once these
rebates are reported to the IRS.
Preserve local control in the design of water and
wastewater systems. Local utilities and their engineers are best
situated to determine the design and materials appropriate for their
needs, with appropriate oversight processes and guidance when needed.
The ultimate decision on such matters should be left to their
professional judgment.
For more information and to join this important effort, contact
Chuck Chaitovitz, vice president for Environmental Affairs and
Sustainability.
Letter of September 16, 2019, from James W. Tobin III, Executive Vice
President and Chief Lobbyist, Government Affairs and Communications
Group, National Association of Home Builders, Submitted for the Record
by Hon. Bruce Westerman
September 16, 2019.
Hon. Grace Napolitano,
Chairwoman,
House Subcommittee on Water Resources and Environment, Washington, DC.
Hon. Bruce Westerman,
Ranking Member,
House Subcommittee on Water Resources and Environment, Washington, DC.
Dear Chairwoman Napolitano and Ranking Member Westerman:
On behalf of the more than 140,000 members of the National
Association of Home Builders (NAHB), I am writing to express our
support for the Administration's commitment to creating a fair and
balanced Waters of the United States (WOTUS) definition. We are pleased
that the House Water Resources Subcommittee is taking the time to hold
a hearing on this and other very important Clean Water Act (CWA)
issues.
Our nation's home builders construct neighborhoods, create jobs,
strengthen economic growth, and help create thriving communities while
maintaining, protecting, and enhancing our natural resources. Under the
CWA, home builders must often obtain and comply with section 402 storm
water and 404 wetland permits to complete their projects. What is most
important to these compliance efforts is a permitting process that is
consistent, predictable, timely, and focused on protecting true aquatic
resources.
In 2015, the Environmental Protection Agency and the Army Corps
(the agencies) finalized a regulation to redefine the scope of waters
protected under the CWA. The agencies added new terms, definitions, and
interpretations of federal authority over private property that are
more subjective and provided the agencies with greater discretionary
latitude to expand their regulatory authority. The 2015 rule fell well
short of providing the clarity and certainty sought by the regulated
community. It would increase federal regulatory power over private
property, lead to increased litigation and permit requirements, and
lengthy delays for any business trying to comply. It is so convoluted
that even professional wetland consultants with decades of experience
would struggle to determine what is jurisdictional. Thankfully, the
Trump Administration recently repealed this 2015 rule and is working to
provide a practicable and transparent permitting system rather than
expanding their authority over private property.
Meanwhile, the agencies are working on a new Clean Water rule
which, if finalized, would put in place a WOTUS definition that more
faithfully implements the CWA, draws clearer jurisdictional lines, and
preserves states' authority over local land and water use.
Unlike the 2015 rule, the new proposal recognizes that waters which
do not fall under the WOTUS definition are nevertheless protected by
robust state and local laws, as well as numerous other federal statutes
such as the Safe Drinking Water Act. The new proposal also adheres to
key principles articulated by the Supreme Court regarding the limits of
the CWA's reach while exerting federal jurisdiction over features with
the strongest influence on major downstream waterbodies. This new
proposal strikes a necessary balance between environmental protection
and regulatory certainty and will give the public long overdue clarity.
We commend the subcommittee for providing this opportunity to
discuss such important issues. We believe that this rule will go a long
way towards improving the way we do business and making the homes we
build more affordable. Thank you for giving consideration to our
thoughts.
Sincerely,
James W. Tobin III.
Statement of the American Forest & Paper Association, Submitted for the
Record by Hon. Bruce Westerman
The American Forest & Paper Association (AF&PA) appreciates the
opportunity to submit this statement for the record for the hearing
entitled ``The Administration's Priorities and Policy Initiatives Under
the Clean Water Act.'' AF&PA serves to advance a sustainable U.S. pulp,
paper, packaging, tissue and wood products manufacturing industry
through fact-based public policy and marketplace advocacy. AF&PA member
companies make products essential for everyday life from renewable and
recyclable resources and are committed to continuous improvement
through the industry's sustainability initiative--Better Practices,
Better Planet 2020. The forest products industry accounts for
approximately four percent of the total U.S. manufacturing GDP,
manufactures nearly $300 billion in products annually and employs
approximately 950,000 men and women. The industry meets a payroll of
approximately $55 billion annually and is among the top 10
manufacturing sector employers in 45 states.
AF&PA's sustainability initiative--Better Practices, Better Planet
2020--comprises one of the most extensive quantifiable sets of
sustainability goals for a U.S. manufacturing industry and is the
latest example of our members' proactive commitment to the long-term
success of our industry, our communities and our environment. We have
long been responsible stewards of our planet's resources. We are proud
to report that our members have already achieved the greenhouse gas
reduction and workplace safety goals. Our member companies have also
collectively made significant progress in each of the following goals:
increasing paper recovery for recycling; improving energy efficiency;
promoting sustainable forestry practices; and reducing water use.
AF&PA generally supports the actions taken by the Trump
Administration's EPA Office of Water that we expect to be the subject
of the hearing. Under this administration, the agency has recognized
that Cooperative Federalism is the foundation of the Clean Water Act
(CWA). EPA has reviewed and is in the process of reversing several
rules issued by the previous administration that did not respect that
states have the primary responsibility to implement the CWA, or that
inappropriately expanded federal jurisdiction. Two such rules are
discussed below.
We also support EPA's focus on market-based measures to promote
water quality. For example, EPA recently issued a request for comment
on its updated water quality trading policy. The agency recognized that
the previous policy was inflexible and that it was inhibiting potential
trades. The new policy should allow for more frequent and cost-
effective trades to occur.
human health water quality criteria
Under the CWA, states have the primary responsibility to develop
water quality standards. States begin that process with EPA's Human
Health Water Quality Criteria (HHWQC) but can use other criteria as
long as they are adequately protective of human health. States also
have the discretion to set the exposure variables used to calculate the
HHWQC.
During the prior Administration, EPA made several changes to its
HHWQC policy that resulted in unnecessarily stringent HHWQC and imposed
federal criteria on Washington and Maine when those states failed to
accede to EPA's policy changes. The agency also threatened to reject
Idaho's criteria on a similar basis. These federal criteria could cost
municipal and industrial dischargers billions of dollars without the
certainty that they can be achieved. Many of these industrial
facilities provide high-paying manufacturing jobs in rural communities
that cannot afford to lose them.
In the last two years, the agency has reconsidered those policies.
Of most relevance to the Committee hearing, EPA has initiated a
rulemaking to withdraw the federal rule it imposed on Washington. We
support EPA completing that rulemaking as expeditiously as possible, so
that the state standards EPA approved in May of this year become the
applicable standards for CWA purposes in the state.
waters of the u.s. (wotus)
AF&PA supports EPA's and the Army Corps of Engineers (the Agencies)
rescission of the 2015 WOTUS Rule. Its provisions were, in various
respects, beyond the Agencies' statutory authority, inconsistent with
Supreme Court precedent, and contrary to the goals of the CWA,
including the Act's goal to ``recognize, preserve, and protect the
primary responsibilities and rights of States to prevent, reduce, and
eliminate pollution.'' 33 U.S.C. 1251(b). The Agencies' failure to
seek input from state and local entities during the development of the
2015 Rule contributed to the rule's legal flaws and lack of clarity.
The 2015 Rule improperly reads the word ``navigable'' out of the
statute, and as more than one court has noted, implicates significant
constitutional concerns about the appropriate scope of federal
authority. Furthermore, nothing in the record created during the 2015
rulemaking process dictated the adoption of such a sweeping definition
of ``waters of the United States.''
Accordingly, we support the decision to rescind the 2015 Rule and
recodify the regulations in place immediately prior so that the Code of
Federal Regulations accurately reflects the applicable regulations. We
also look forward to a final ``Step 2'' replacement rule, as we believe
the Agencies' proposed Step 2 was much more aligned with the
Constitution, the CWA, and caselaw.
per- and polyfluoroalkyl substances (pfas)
PFAS are a large and diverse class of chemicals with widely varying
uses and properties. AF&PA is opposed to any legislation or regulation
that does not distinguish between short and long-chain PFAS, suggesting
that all short-chain PFAS have similar potential for harm. We oppose
any legislation or regulation that would 1) require the EPA to either
directly or indirectly designate all PFAS as hazardous substances under
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) or 2) require the EPA to add all PFAS to the list of toxic
pollutants regulated by the Clean Water Act and establish effluent and
pretreatment standards, which could trigger ``back door'' CERCLA
designations.
We thank the Committee for their consideration on these important
matters and stand ready to assist you and offer our expertise as a
resource as you shape policy on this important issue.
For more information, please contact: Elizabeth Bartheld, Vice
President, Government and Industry Affairs, American Forest & Paper
Association, 1101 K Street, NW Suite 700, Washington, DC 20005.
Letters from the U.S. Environmental Protection Agency in Response to
Letters from the Committee on Transportation and Infrastructure,
Submitted for the Record by Hon. Grace F. Napolitano
letter 1 from u.s. environmental protection agency, office of water
November 2, 2017.
Hon. Peter A. DeFazio,
U.S. House of Representatives,
Washington, DC.
Dear Congressman DeFazio:
Thank you for your August 18, 2017, letter to the U.S.
Environmental Protection Agency providing comments on the proposed rule
published for public comment by the EPA and the Department of the Army.
The rule proposes to rescind the 2015 Clean Water Rule and re-codify
the agencies' regulatory text that existed prior to the 2015 regulation
defining ``waters of the United States'' or WOTUS.
The agencies' proposed rule initiates the first step in a
comprehensive, two-step process intended to review and revise the
definition of ``waters of the United States'' consistent with the
February 28 2017, Executive Order on ``Restoring the Rule of Law,
Federalism, and Economic Growth by Reviewing the `Waters of the United
States' Rule.'' The focus of the step 1 proposal is to withdraw the
2015 Clean Water Rule and replace it with regulations that the agencies
have implemented since 1986 and existing guidance. This action will
reestablish procedures for identifying waters covered by the Clean
Water Act that have been in place for over 30 years and will provide
continuity and certainty for regulated entities, the States, agency
staff, and the public. In a second step, the agencies will pursue
notice-and-comment rulemaking as part of a substantive reevaluation of
the definition of ``waters of the United States.''
We appreciate the comments you provided on the EPA-Army proposed
rule. We will include your letter in the official docket for the
proposed rule, identified by Docket ID EPA-HQ-OW-2017-0203 at http://
www.regulations.gov. We will carefully consider your comments and all
comments received on the proposed rule when deciding what changes to
make to the final rule.
Again, thank you for your letter. If you have further questions,
please contact me or your staff may contact Denis Borum in the EPA's
Office of Congressional and Intergovernmental Relations.
Sincerely,
Michael H. Shapiro,
Acting Assistant Administrator.
letter 2 from u.s. environmental protection agency, office of water
September 12, 2018.
Hon. Peter DeFazio,
Ranking Member,
Committee on Transportation and Environment, House of Representatives,
Washington, DC.
Dear Congressman DeFazio:
Thank you for your April 24, 2018, letter inquiring about a March
30, 2018, revision to an Environmental Protection Agency internal
delegation regarding Clean Water Act (``CWA'') section 404
jurisdictional determinations (``JDs''). We appreciate your request for
clarification and the opportunity to address any confusion on the
issue.
As context for the internal delegation modification, the EPA has
``the final administrative responsibility for construing the term
`navigable waters' '' under the CWA for all CWA programs, including
section 404 (Civiletti Memorandum, 43 Op. Att'y Gen. 197 (1979)). In
the section 404 context, however, the Army Corps of Engineers
(``Corps'') is the predominant field presence and has responsibility
for making most of the JDs under the CWA (approximately 60,000 a year).
In 1989, the EPA and the Corps outlined how they would address
questions of jurisdictional scope in the section 404 context where
``significant issues or technical difficulties are anticipated or
exist'' in a Memorandum of Agreement titled ``Determination of
Geographic Jurisdiction of the Section 404 Program and Application of
Exemptions Under Section 404(f) of the Clean Water Act'' (``1989
MOA''). The 1989 MOA established a process for specific instances where
the EPA, instead of the Corps, would make ``the final determination of
the geographic jurisdictional scope of waters of the United States for
purposes of section 404.'' The process involves two steps: (1)
designation of a ``generic or project-specific situation'' as a special
case by the EPA and, subsequently, (2) a final determination of the
geographical jurisdictional scope for the special case by the EPA.
The special case process has been used only 15 times, with only two
special cases designated since 2008 (the most-recent special case was
designated in 2015). As of March 30, 2018, there is one special case
designated by the EPA awaiting issuance of a final JD. In addition,
several other cases that may pose ``significant issues or technical
difficulties'' have been brought to the EPA's attention, and the Agency
is considering whether to designate one or more of those cases as
special cases.
To promote national consistency and increase regulatory certainty
in the rare instances when a JD poses ``significant issues or technical
difficulties,'' the Administrator updated the EPA's internal delegation
of authority regarding special cases on March 30, 2018. Under the
revised internal delegation, the Administrator's authority to make
final determinations of geographic jurisdiction for special cases,
which previously had been delegated to the EPA's Regional
Administrators, was retained by the Administrator in order to promote
national consistency and better-utilize the national expertise of the
EPA's headquarters personnel. That personnel is currently engaged in a
national rulemaking effort regarding the scope of CWA jurisdiction, a
topic that remains subject to significant regulatory uncertainty and
ongoing litigation. The EPA regional offices will continue to be
responsible for the evaluation and development of special cases in
coordination with the Administrator's Office and the Office of Water.
This approach provides a clear process for taking regional variation
into account while promoting national consistency in the EPA's
decision-making.
It is important to note that the remainder of the delegations under
the section 404 program remained entirely unchanged. For example, the
Administrator's authority to designate a special case remained
delegated to the Assistant Administrator for Water, which in turn
remained redelegated to the Director of the Office of Wetlands, Oceans
and Watersheds within the Office of Water.
Again, thank you for your letter. If you have further questions,
please contact me or your staff may contact Denis Borum in the EPA's
Office of Congressional and Intergovernmental Relations.
Sincerely,
David P. Ross,
Assistant Administrator.
letter 3 from u.s. environmental protection agency, office of water
November 20, 2018.
Hon. Peter DeFazio,
Ranking Member,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC.
Dear Mr. DeFazio:
Thank you for your July 19, 2018 letter to the U.S. Environmental
Protection Agency's (EPA) Acting Administrator Andrew Wheeler regarding
the EPA's Clean Water Act (CWA) Section 404(c) authority and the Pebble
gold and copper deposit site in the Bristol Bay region of southwest
Alaska. Your letter references the EPA's June 2018 Memorandum,
``Updating the EPA's Regulations Implementing Clean Water Act section
404(c)'' and the ongoing review of Pebble Limited Partnership's
(Pebble's) Section 404 permit application to the U.S. Army Corps of
Engineers (Corps) to develop a mine at the Pebble deposit site. Acting
Administrator Wheeler has asked me to respond to you on his behalf.
The June 2018 Memorandum directs the EPA's Office of Water to
develop proposed revisions to the Agency's section 404(c) regulations
that consider multiple changes, including eliminating use of 404(c)
either before a section 404 permit application has been submitted to
the Corps or state or after the Corps or state has issued a section 404
permit. The EPA is now considering next steps, in accordance with this
Memorandum, to ensure that the Agency is exercising its authority
consistent with the principles of due process and in a manner which
provides certainty to the regulated community.
With regard to the Pebble gold and copper deposit site in the
Bristol Bay region of southwest Alaska, as part of a May 2017
settlement agreement resolving outstanding lawsuits between the EPA and
Pebble, the Agency agreed to initiate a process to propose to withdraw
the 2014 CWA section 404(c) 2014 Proposed Determination. In the EPA's
July 19, 2017, notice proposing to withdraw the Proposed Determination,
the Agency solicited public comment on three reasons to support
withdrawal:
First, to provide Pebble with additional time to submit a
Section 404 permit application to the Corps.;
Second, to remove any uncertainty, real or perceived,
about Pebble's ability to submit a permit application and have that
permit application reviewed.; and
Third, to allow the factual record regarding any
forthcoming permit application to develop.
On January 26, 2018, the EPA issued a notice announcing the
Agency's decision not to withdraw the Proposed Determination, leaving
the Determination in place pending consideration of any additional
information. In suspending the EPA's withdrawal of the Proposed
Determination, the Agency considered relevant statutory authority,
applicable regulations, and the input the Agency received as part of
the tribal and Alaska Native Claims Settlement Act Corporation
consultations, the more than one million public comments received, as
well as recent developments, including Pebble's submittal of a section
404 permit application.
The EPA remains committed to considering any other information on
the potential mine's impact to the region's fisheries and natural
resources. The Corps has initiated the National Environmental
Protection Policy Act process and begun development of an Environmental
Impact Statement (EIS) for the Pebble project. The EPA, at the
invitation of the Corps, has agreed to be a cooperating agency in this
process and is working with the Corps pursuant to that schedule. In a
June 29, 2018 letter, the EPA provided comments to the Corps in
response to the Corps' EIS scoping package. The EPA has also provided
the Bristol Bay Watershed Assessment to the Corps for their EIS
process, which is now posted on the project website.\1\
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\1\ For the EPA's Bristol Bay Watershed Assessment, as provided to
the Corps, see: https://www.pebbleprojecteis.com/documents/library.
---------------------------------------------------------------------------
Given the significant public interest on this issue, the EPA will
continue to seek input from all stakeholders as the permitting process
progresses. Neither the January 2018 decision, nor the previous
settlement agreement, guarantees or prejudges a particular outcome in
the permitting process or any particular EPA decision-making under the
Clean Water Act. Now that Pebble has submitted a permit application,
under the terms of the May 2017 settlement agreement, the EPA agreed to
provide Pebble until May 2021, unless a final EIS is issued sooner, to
advance through the permit review process before the EPA could move to
the next step in the section 404(c) review process, if such a decision
is made. The steps the EPA has taken demonstrate the Agency's
commitment to both the rule of law, fundamental fairness, and upholding
the EPA's core mission of environmental stewardship. I can assure you
that this commitment will continue through the remainder of the
process.
Again, thank you for your letter. If you have further questions,
please contact me or your staff may contact Denis Borum of the EPA's
Office of Congressional and Intergovernmental Relations.
Sincerely,
D. Lee Forsgren,
Deputy Assistant Administrator.
cc: Chris Hladick, Regional Administrator, EPA Region 10
[Editor's note: Also submitted for the record and retained in committee
files is the same letter addressed to Hon. Tom Carper, Ranking Member,
Senate Committee on Environment and Public Works.]
letter 4 from u.s. environmental protection agency, office of
congressional and intergovernmental relations
September 16, 2019.
Hon. Peter A. DeFazio,
Chairman,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington. DC.
Dear Chairman DeFazio:
On behalf of the U.S. Environmental Protection Agency, I am writing
in response to your letter dated July 29, 2019, to Administrator Andrew
Wheeler, in which you sought information about the Agency's
interpretation of Section 401 of the Clean Water Act (CWA).
On August 8, 2019, Administrator Wheeler signed a proposed rule to
implement Section 401 of the CWA. The proposed rule, if finalized,
would increase the transparency and efficiency of the 401 certification
process and promote the timely review of federal permits while
continuing to protect the nation's water quality.
Section 401 of the CWA gives states and authorized tribes the
authority to assess potential water quality impacts of discharges from
federally permitted or licensed activities that may affect navigable
waters within their borders. The EPA's existing certification rules
have not been updated in nearly 50 years and are inconsistent with the
text of CWA Section 401, leading to confusion and unnecessary delays
for federally permitted activities, including infrastructure projects.
In April 2019, President Trump issued Executive Order 13886,
``Promoting Energy Infrastructure and Economic Growth,'' and directed
the Administration to take appropriate action to promote important
energy infrastructure. The EPA was directed to first revise guidance on
the CWA Section 401 certification process and then to propose new rules
to implement CWA Section 401. The EPA has engaged in formal
consultation with state, local, and tribal partners, as well as other
federal agencies, to develop this proposed rule. Under the Executive
Order, the EPA is directed to finalize this rule by May 2020.
The Agency considered stakeholder input prior to the initiation of
and during the formal consultation period, including correspondence
from states, tribes, and other entities. The Agency engaged in state
and tribal consultation and accepted pre-proposal recommendations in an
administrative docket until May 24, 2019. The Agency held two webinars
for states, tribes, and their associations on April 17, 2019 and May 8,
2019. The Agency also held two separate webinars for tribes and their
associations on May 7, 2019 and May 15, 2019. This stakeholder input,
including documents received prior to the opening of the administrative
docket and input received at these four webinars, is publicly available
(https://www.regulations.gov/docket?D=EPA-HQ-OW-2018-0855).
In addition to this pre-proposal docketed correspondence, the
Agency received correspondence from states and other entities after the
close of the pre-proposal administrative docket. We are enclosing this
correspondence for your review. The Agency has placed information on
meetings and phone calls with states, tribes, and other entities in the
docket for the proposed rulemaking signed on August 8, 2019. These
documents are available in the docket for the proposed rule ``Updating
Regulations on Water Quality Certification'' (https://
www.regulations.gov/docket?D=EPA-HQ-OW-2019-0405). The EPA will
continue to accept public comment on the proposed rule for 60 days
following the August 22, 2019 publication in the Federal Register,
which ends on October 21, 2019. The EPA also held half-day state and
tribal listening sessions on September 4-5, 2019 and a public hearing
on September 5-6, 2019 in Salt Lake City, Utah. A second series of
listening sessions for states and tribes is scheduled for September 16,
2019 in Chicago, Illinois.
In addition to requesting information concerning the Agency's
interpretation of CWA Section 401, the Committee's letter requests
information and data on state certifications over the past 10 years.
The Agency does not have the requested information because there is no
national database that contains information from all federal permitting
agencies. The Agency does not collect information on the number of
certification requests denied or granted with conditions, project
types, or the time it takes federal agencies to complete the
certification process. However, the proposed rulemaking does include
information on the average annual number and type of permits and
licenses that require water quality certification. The proposed
rulemaking specifically solicits information that may be available to
more fully and accurately evaluate such parameters.
The Agency provides an in-depth explanation of the statutory basis
for its proposal for what constitutes ``appropriate state law'' in the
preamble to the proposed rule ``Updating Regulations on Water Quality
Certification.'' Additional information can be found on the EPA's
website (https://www.epa.gov/cwa-401/proposed-rule-updating-
regulations-water-quality-certification-0).
The EPA recognizes the importance of the Committee's need to obtain
information necessary to perform its legitimate oversight functions and
is committed to continuing to work with your staff on how best to
accommodate the Committee's interests. If you have further questions,
you may contact me, or your staff may contact Duncan Braid in the EPA's
Office of Congressional and Intergovernmental Relations.
Sincerely,
Joseph A. Brazauskas,
Acting Associate Administrator.
Enclosure
cc: The Honorable Sam Graves, Ranking Member
letter 5 from u.s. environmental protection agency, office of
congressional and intergovernmental relations
September 16, 2019.
Hon. Peter A. DeFazio,
Chairman,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington. DC.
Dear Chairman DeFazio:
On behalf of the U.S. Environmental Protection Agency, I am writing
in response to your letter dated July 29, 2019, to Administrator Andrew
Wheeler, in which you sought information about the Agency's
Interpretive Statement clarifying the application of the Clean Water
Act (CWA) permitting requirements to releases of pollutants to
groundwater.
On April 15, 2019, the EPA issued an ``Interpretive Statement on
Application of the Clean Water Act National Pollutant Discharge
Elimination System Program to Releases of Pollutants From a Point
Source to Groundwater,'' detailing the Agency's interpretation of the
CWA 's National Pollutant Discharge System (NPDES) permit program's
applicability to releases of pollutants from a point source to
groundwater. The EPA concluded that the CWA is best read as excluding
all releases of pollutants from a point source to groundwater from
NPDES program coverage and liability under Section 301 of the CWA,
regardless of a hydrologic connection between the groundwater and a
jurisdictional surface water. This Interpretive Statement is a result
of a comprehensive analysis of the CWA's text, structure, legislative
history, and judicial decisions, and marks the first instance in which
the Agency has issued guidance focused exclusively on whether NPDES
permits are required for releases of pollutants to groundwater that
reach jurisdictional surface water.
The Agency's mixed record of prior statements, a split in the
federal circuit courts, and recent judicial decisions resulted in a
confusing legal landscape in which permitting and enforcement agencies,
potentially regulated parties, and the public lacked clarity on when
the NPDES permitting requirement set forth in sections 301 and 402 of
the CWA may be triggered by releases of pollutants to groundwater. The
absence of a dedicated EPA statement on the best reading of the CWA has
added to confusion in the courts and uncertainty for EPA regional
offices and states implementing the NPDES program, regulated entities,
and the public. Through the Interpretive Statement. the EPA has
provided clear guidance that balances the statute, case law, and the
need for clarity on the scope of the CWA NPDES coverage.
In February 2018, the Agency sought public comment on whether the
NPDES permit program applies to releases of pollutants to groundwater
and whether the Agency should revise or clarify its position on this
issue. Informed by those comments and based on a holistic analysis of
the statute, its text, structure, and legislative history, the Agency
concluded that the best, if not the only, reading of the CWA is that
Congress intentionally chose to exclude all releases of pollutants to
groundwater from the NPDES program, even where pollutants subsequently
travel to jurisdictional surface waters via groundwater. As the Agency
detailed in the Interpretive Statement, Congress purposely structured
the CWA to give states the responsibility to regulate such releases
under state authorities. Further, other federal statutes contain
explicit provisions that address the release of pollutants into
groundwater and provide federal authority to address those releases.
Thus in accordance with Congress's intent, state and other federal
authority is collectively available to provide protection for ground
and surface water quality in those instances where direct CWA
permitting authority is not applicable.
The Committee's requests related to state- or EPA-issued CWA
permits are extensive and would require the EPA to generate information
and records that do not already exist or are not currently in our
possession. Additionally, some of the information requested would
require extensive collaboration across the Agency, states, and other
permitting authorities and the EPA is uncertain whether these sources
could clearly identify the requested information. Due to the nature of
obtaining coverage under a general NPDES permit, the EPA has only
specific facility information as required to be submitted in a Notice
of Intent for Coverage. While the EPA does have information from
specific facilities in the applications submitted for individual NPDES
permits, the application forms are primarily focused on information
about the effluent. Additionally, the Agency expects that the same
aforementioned considerations noted for EPA-issued permits would apply
to most state programs regarding information about general and
individual NPDES permits and discharges via direct hydrologic
connection.
Regarding existing pollutant releases not covered by a state- or
EPA-issued CWA permits or the variety of types of releases described in
the Committee's letter, similar issues exist as described above--the
requests are extensive and would require the EPA to generate
information and records that do not already exist. For example, as it
pertains to non-NPDES permit actions, extensive collaboration across
the Agency, states, and other permitting authorities would be required,
and the EPA is uncertain whether these sources could clearly identify
the requested information.
The EPA recognizes the importance of the Committee's need to obtain
information necessary to perform its legitimate oversight functions and
is committed to continuing to work with your staff on how best to
accommodate the Committee's interests. If you have further questions,
you may contact me, or your staff may contact Duncan Braid in the EPA's
Office of Congressional and Intergovernmental Relations.
Sincerely,
Joseph A. Brazauskas,
Acting Associate Administrator.
cc: The Honorable Sam Graves, Ranking Member
letter 6 from u.s. environmental protection agency, office of
congressional and intergovernmental relations
September 16, 2019.
Hon. Peter A. DeFazio,
Chairman,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington. DC.
Dear Chairman DeFazio:
On behalf of the U.S. Environmental Protection Agency, I am writing
in response to your letter dated July 29, 2019, to Administrator Andrew
Wheeler, in which you sought information about the current rulemaking
addressing the management and treatment of peak flows at publicly owned
treatment works (POTWs) serving separate sanitary sewer systems.
In April 2018, the Agency announced a new rulemaking effort aimed
at clarifying issues associated with the management and treatment of
peak flows during wet weather events at POTWs with separate sanitary
sewer systems. In this rulemaking, the EPA will be considering changes
to the National Pollutant Discharge Elimination System (NPDES)
regulations to establish a permitting framework for evaluating
management options to provide POTWs serving separate sanitary sewer
systems flexibility in how they manage and treat peak flows. The EPA
has not yet issued a proposal, but any proposed changes would seek to
provide a consistent national approach to permitting peak flows that
ensures all applicable permit discharge limitations and requirements
are met during peak flow events. At the same time, such an approach
should allow for both efficient treatment plant operation and
protection of the public from potential adverse health effects of
inadequately treated wastewater.
The Agency recognizes the significant expertise that exists among
states, tribes, POTWs and municipal officials, private sector
engineering firms, public health agencies, and the public related to
these issues. The EPA has undertaken an extensive stakeholder
engagement effort to encourage individual input for developing a draft
rule that will support a consistent approach to permitting, a1low for
innovative flexibility, and protect human health and the environment.
In advance of issuing any proposed changes, the EPA solicited
public comment from August 31, 2018 to October 31, 2018 and held public
listening sessions on October 16, October 24, and October 30, 2018. The
EPA will continue to consider all these perspectives when developing a
proposed rule to address permitting requirements for the management of
peak flows at POTWs with separate sanitary sewer systems. Enclosed is a
spreadsheet listing the organizations and stakeholders with whom EPA
staff have discussed this rulemaking effort. The EPA expects to release
a notice of proposed rulemaking and request for public comment by
November 2019 and to take final action on the proposal by July 2020.
The docket, accompanying the proposed rulemaking, will contain the
information underpinning the Agency's proposed action and will be
available for viewing on regulations.gov.
The EPA does not possess data on the total number of facilities
that blend or use side-stream treatment, frequency of blending, or
volume of blended effluent discharged for the national universe of
POTWs. The EPA has limited data on the cost and treatment effectiveness
for any installed side-stream technologies as well as pathogen levels
in blended wastewater discharges to compare to discharges of wastewater
that has received full biological treatment.
Regarding the number of POTWs whose NPDES permits include acute
(short-term) limits on pathogens, the EPA used final effluent Discharge
Monitoring Report (DMR) data to identify limits for pathogens and
pathogen indicators in 6,597 NPDES permits for POTWs serving separate
sanitary sewer systems. DMRs do not identify effluent limits as short-
or long-term or acute or chronic. Rather, the limits are categorized
based on whether they represent a maximum (e.g., daily maximum,
instantaneous maximum) or average (e.g., weekly average, annual
average, monthly average) condition. The EPA found that 3,492 permits
contained year-round maximum limits and 5,380 contained year-round
average limits; 431 permits contained seasonal maximum limits and 560
contained seasonal average limits.
The EPA analyzed the POTWs serving separate sanitary sewer systems
that discharge into a coastal recreation water or discharge up to 5
miles upstream of a coastal recreation water (as defined in Section 502
of the Clean Water Act) that had a beach advisory or closing at least
once in 2018. There were 51 POTWs that discharge into or up to 5 miles
upstream of a coastal recreation water that had a beach advisory or
closing at 56 beaches at least once in 2018. The EPA analyzed the
number and location of POTWs serving separate sanitary sewer systems
located in low-income or minority communities with one or more effluent
exceedances in 2018 of at least one existing NPDES permit limit. Of the
4,082 POTWs that exceed one or more permit limits in 2018, 945 were
located in either low-income or minority communities.
The Committee's request is related to an ongoing regulatory action.
Given its current status, we are particularly concerned about
protecting the integrity of ongoing Agency pre-decisional
deliberations. Some of the documents you seek may well reflect internal
advice, recommendations, and analysis by Agency staff and attorneys
about the proposed rule. These internal and pre-decisional
deliberations are likely to be the subject of additional discussions
and analysis among Agency staff and senior policymakers during
development of this proposal and subsequent finalization or any
regulatory action. It is critical for Agency policymakers to obtain the
broadest range of advice and recommendations from Agency staff in order
to properly fill its statutory obligations under the Clean Water Act
and other environmental statutes. Disclosure of pre-decisional
information at this stage of the deliberations could raise questions
about whether the Agency's decisions are being made or influenced by
proceedings in a legislative or public forum rather than through the
established administrative process, which is ongoing. In addition.
disclosure of such information could compromise the ability of Agency
employees to provide candid advice and recommendations during the
Agency's ongoing deliberative process and may make the rulemaking
process, as a whole, less robust, potentially impacting the Agency's
mission.
The EPA recognizes the importance of the Committee's need to obtain
information necessary to perform its legitimate oversight functions and
is committed to continuing to work with your staff on how best to
accommodate the Committee's interests. If you have further questions,
you may contact me, or your staff may contact Duncan Braid in the EPA's
Office of Congressional and Intergovernmental Relations.
Sincerely,
Joseph A. Brazauskas,
Acting Associate Administrator.
Enclosure
cc: The Honorable Sam Graves, Ranking Member
letter 7 from u.s. environmental protection agency, office of
congressional and intergovernmental relations
September 17, 2019.
Hon. Peter A. DeFazio,
Chairman,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC.
Dear Chairman DeFazio:
On behalf of the U.S. Environmental Protection Agency, I am writing
in response to your letter dated July 29, 2019, to Administrator Andrew
Wheeler, in which you sought information about the implementation of
the Clean Water Act (CWA) and the final rule to repeal the 2015 Rule
and the proposed rule to revise the definition of ``waters of the
United States.''
On September 12, 2019, the EPA and the Department of the Army
(``the agencies'') signed a final rule to repeal the 2015 Clean Water
Rule: Definition of ``Waters of the United States'' (``2015 Rule''),
which amended portions of the Code of Federal Regulations (CFR), and
restored the regulatory text that existed prior to the 2015 Rule. With
this final rule, the agencies will implement the pre-2015 Rule
regulations informed by applicable agency guidance documents and
consistent with Supreme Court decisions and longstanding agency
practice. This rule is the first step--Step 1--in a two-step rulemaking
process to define the scope of ``waters of the United States'' under
the CWA. Step 1 provides regulatory certainty as to the definition of
``waters of the United States'' following years of litigation
surrounding the 2015 Rule. The final Step 1 rule takes effect 60 days
after publication in the Federal Register.
The agencies are repealing the 2015 Rule for four primary reasons.
First, the agencies conclude that the 2015 Rule did not implement the
legal limits on the scope of the agencies' authority under the CWA as
intended by Congress and reflected in Supreme Court cases, including
Justice Kennedy's articulation of the significant nexus test in
Rapanos.\1\ Second, the agencies conclude that in promulgating the 2015
Rule, the agencies failed to adequately consider and accord due weight
to the policy of the Congress in CWA section 101(b) to ``recognize,
preserve, and protect the primary responsibilities and rights of States
to prevent, reduce, and eliminate pollution'' and ``to plan the
development and use . . . of land and water resources . . . '' 33
U.S.C. 1251(b). Third, the agencies repealed the 2015 Rule to avoid
interpretations of the CWA that push the envelope of their
constitutional and statutory authority absent a clear statement from
Congress authorizing the encroachment of federal jurisdiction over
traditional state land-use planning authority. Lastly, the agencies
conclude that the 2015 Rule's distance-based limitations suffered from
certain procedural errors and a lack of adequate record support. The
agencies find that these reasons, collectively and individually,
warrant repealing the 2015 Rule. The Step 1 final rule returns the
relationship between the federal government, states, and tribes to the
longstanding and familiar distribution of power and responsibilities
that existed under the CWA for many years prior to the 2015 Rule.
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\1\ Rapanos v. United States and Carabell v. United States 547 U.S.
715 (2006) (``Rapanos'').
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On December 11, 2018, the agencies signed a proposed rule--Step 2--
providing a clear, understandable, and implementable definition of
``waters of the United States'' that clarifies federal authority under
the CWA while respecting the role of states and tribes in managing land
and water resources within their borders. This proposal contains a
straightforward definition that would protect the nation's navigable
waters, help sustain economic growth, and reduce barriers to business
development. The proposed rule would provide clarity, predictability,
and consistency regarding the scope of federal jurisdiction under the
CWA. The proposed rule also details exclusions for specific features
that would not be ``waters of the United States,'' such as features
that only contain water during or in response to rainfall (i.e.,
ephemeral features); groundwater; many ditches, including most roadside
and farm ditches; prior converted cropland; certain stormwater control
features; and waste treatment systems.
The agencies believe this proposed definition appropriately
identifies waters that should be subject to federal regulation under
the CWA, while respecting the role of states and tribes in managing
their own land and water resources. Many states and tribes have
existing regulations that apply to waters within their borders, whether
or not they are considered ``waters of the United States.'' The Step 2
proposed rule, if finalized, would give states and tribes more
flexibility in determining how best to manage their land and water
resources while protecting the nation's navigable waters as intended by
Congress when it enacted the CWA.
In advance of issuing the proposed rule, the agencies invited
written pre-proposal recommendations and established an administrative
docket to accept recommendations from all interested parties. The
agencies considered the input received from a wide range of
stakeholders as they developed the Step 2 proposal. In addition to pre-
proposal input, the EPA and the Army held a public webcast to help
explain the key elements of the proposed ``Revised Definition of Waters
of the United States'' on February 14, 2019. The agencies also held a
public hearing on the proposed revised ``waters of the United States''
definition in Kansas City, Kansas, on February 27 and 28, 2019. Ora]
statements and supporting information presented at this public hearing
were considered with the same weight as written statements and
supporting information submitted during the public comment period. The
agencies listened to those directly affected by the regulations.
In developing the Step 2 proposed rule. the agencies also evaluated
potential impacts of the proposed revised ``waters of the United
States'' definition to CWA programs and regulated entities. Due to
significant data limitations that are discussed in both the Economic
Analysis and the Resource and Programmatic Assessment for the proposed
rule, the agencies' analyses are largely qualitative. These documents,
which we have enclosed, are publicly available on the EPA's website
(https:/lwww.epa.gov/wotus-rule/proposed-revised-definition-wotus-
supporting-documents).
The agencies are not aware of any map or dataset that accurately or
with any precision portrays the scope of CWA jurisdiction at any point
in the history of this complex regulatory program. The agencies
attempted to use the National Hydrography Dataset (NHD) at high
resolution and the National Wetlands Inventory (NWI) in a Geographic
Information Systems analysis to assess the potential change in CWA
jurisdiction as a result of the proposed revised definition of ``waters
of the United States,'' but ultimately concluded that the limitations
of the datasets (including known errors of omission and commission,
positional inaccuracies, misclassification of stream flow permanence,
and the fact that neither the NHD nor the NWI were created for
regulatory purposes) prohibit using the data to quantify the extent of
waters whose jurisdictional status could change under the proposed
rule. While the NHD and NWI are the most comprehensive hydrogeographic
datasets mapping waters and wetlands in the United States and are
extremely useful resources for a variety of federal programs, they have
technical limitations that present significant challenges for use as
standalone tools to determine the scope of CWA jurisdiction, regardless
of the regulatory definition of ``waters of the United States.'' It is
the longstanding position of the agencies that these datasets do not
represent waters subject to CWA jurisdiction.\2\
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\2\ See, e.g., Letters from EPA Office of Water Acting Assistant
Administrator Nancy Stoner to H. Committee on Sci., Space & Tech.
Chairman Lamar Smith (July 28, 2014, and August 6, 2014) (``[N]o
national or statewide maps have been prepared by any agency, including
EPA, showing the scope of waters subject to the Clean Water Act . . .
To develop maps of jurisdictional waters requires site-specific
knowledge of the physical features of water bodies, and these data are
not available[.]'' (emphasis added). See also ``The EPA Blog'' post
entitled ``Mapping the Truth'' (August 28, 2014) [``While these [U.S.
Geological Survey and Fish & Wildlife Service] maps are useful tools
for water resource managers, they cannot be used to determine Clean
Water Act jurisdiction--now or ever.''), https://blog.epa.gov/2014/08/
28/mapping-the-truth/. Letter from EPA Office of Water Deputy Assistant
Administrator Kenneth J. Kopocis to H. Committee on Sci., Space & Tech.
Chairman Lamar Smith (January 8, 2015) (``These [USGS] maps were not
prepared for the purpose of, nor do they represent, a depiction of the
scope of waters protected under the Clean Water Act. . . . Due to the
resolution limitations of the maps, they are not effective in
distinguishing consistently between land and water.'').
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Regarding information on the number, location, and type of
regulated discharges for each existing National Pollutant Discharge
Elimination System (NPDES) permitted facility located on an
intermittent, ephemeral, and/or headwater stream, the EPA is enclosing
documents showing the agency's preliminary analysis which identifies
specific dischargers and the classification of the nearest NHD-mapped
flowline relative to the discharge outfall location or discharger's
facility location. However, the EPA is unable to determine in this
national analysis if the permitted dischargers were actually
discharging to these waters and whether these dischargers would
continue to be covered under the CWA due to the data limitations of the
NHD described above. Additionally, classification of flowlines as
``ephemeral,'' ``intermittent,'' and ``perennial'' in NHD at high
resolution may not accurately reflect stream flow permanence on the
ground.\3\ Of note, a NPDES permittee currently discharging to a
jurisdictional water that becomes non-jurisdictional under a change to
the definition of ``waters of the United States'' could remain subject
to the requirements of the CWA if it continues to satisfy the point
source conveyance requirements of the Act.
---------------------------------------------------------------------------
\3\ See, e.g., Fritz KM et al., Comparing the extent and permanence
of headwater streams from two field surveys to values from hydrographic
databases and maps. J Am Water Resour Assoc, 49:867-882 (2013); see
also. e.g.. Fritz KM. Wenerick WR, and Kostich MS, A validation study
of a rapid field-based rating system for discriminating among flow
permanence classes of headwater streams in South Carolina, Environ
Manage. 52:1286-1298 (2013).
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The Economic Analysis and Resource and Programmatic Assessment for
the proposed rule describe how the proposed rule might affect
categories of waters and CWA programs. The Economic Analysis presents
three case studies to estimate how a potential change in CWA
jurisdiction could affect water quality; these case studies describe
relevant caveats regarding data limitations as well.
The Committee's request is related to an ongoing regulatory action,
a status that raises particular concerns regarding the integrity and
pre-decisional nature of the agencies' ongoing deliberations. Some of
the documents you seek will reflect internal advice, recommendations,
and analysis by the agencies' staff and attorneys about the proposed
Step 2 rule. These internal and pre-decisional deliberations are likely
to be the subject of additional discussions and analysis among the
agencies' staff and senior policymakers as they consider the
approximately 620,000 comments received. It is critical for the
agencies' policymakers to obtain a broad range of advice and
recommendations from their staff and to be able to properly execute
statutory obligations under the CWA and other environmental statutes.
Disclosure of pre-decisional information at this stage of the
deliberations could raise questions about whether the agencies'
decisions are being made or influenced by proceedings in a legislative
or public forum rather than through the established administrative
process, which is ongoing. In addition, disclosure of such information
could compromise the ability of the agencies' employees to provide
candid advice and recommendations during the ongoing deliberative
process and may have a chilling effect upon future Executive Branch
deliberations, making the rulemaking process, as a whole, less robust
and harming the agencies' ability to carry out their missions.
The EPA recognizes the importance of the Committee's need to obtain
information necessary to perform its legitimate oversight functions and
is committed to continuing to work with your staff on how best to
accommodate the Committee's interests. If you have further questions,
you may contact me, or your staff may contact Duncan Braid in the EPA's
Office of Congressional and Intergovemmental Relations.
Sincerely,
Joseph A. Brazauskas,
Acting Associate Administrator.
Enclosure
cc: The Honorable Sam Graves, Ranking Member
Statement of Robert Nasdor, Northeast Stewardship and Legal Director,
American Whitewater, Submitted for the Record by Hon. Grace F.
Napolitano
American Whitewater submits this written testimony to the House
Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment Hearing on the Administration's Priorities
and Policy Initiatives Under the Clean Water Act held on September 18,
2019. We submit these comments to express our strong opposition to: 1)
EPA repeal and pending replacement of the 2015 Waters of the United
States definition, and, 2) EPA proposed rule to revise and codify EPA
regulations on Water Quality Certification under section 401 of the
Clean Water Act. Taken together, the repeal of WOTUS and the weakening
of section 401 of the Clean Water Act will result in an increase in
pollution in our rivers and restrict the ability of states to ensure
that federally-licensed energy projects meet water quality standards,
and impact water-based outdoor recreation.
American Whitewater is a national 501(c)(3) non-profit organization
with a mission to protect and restore America's whitewater rivers and
to enhance opportunities to enjoy them safely. Our members are
primarily conservation-oriented kayakers, canoeists, and rafters who
enjoy exploring whitewater rivers. As outdoor enthusiasts who spend
time on and in the water, our members have a direct interest in the
health and water quality of our nation's waterways. American Whitewater
works throughout the country to protect healthy free-flowing rivers and
restore rivers that have been dammed, degraded, and dewatered through
hydropower development. The EPA actions described herein threaten the
river conservation and recreation interests of our organization and our
membership.
Narrowing the Definition of Waters of the United States Threatens
Public Health, Rural Economies, Private Property, and River Ecosystems
Last month, the Administration signed a rule \1\ repealing the
science-based Clean Water Rule,\2\ which had reasonably defined which
rivers and other water bodies were covered by the Clean Water Act.
Concurrently, the Administration has proposed a new rule that will
replace the Clean Water Rule with less protective standards. These
overt efforts to reduce the applicability of the Clean Water Act will
allow the discharge of pollution into more waterways, which threatens
downstream communities with easily-foreseeable consequences.
---------------------------------------------------------------------------
\1\ https://www.epa.gov/sites/production/files/2019-09/documents/
wotus_rin-2040-af74_
final_frn_prepub2.pdf
\2\ 80 FR 37053. 2015-06-29.
---------------------------------------------------------------------------
For paddlers, water quality directly influences our health, our
enjoyment of public streams, our tourism contributions to rural
economies, and in many cases our livelihoods. The Clean Water Rule in
particular, and the suite of regulations relating to water quality more
generally, have allowed river-based recreation to flourish along with
many businesses that discharge regulated pollution into our Nation's
rivers.
A 2017 report by the Outdoor Industry Association \3\ found that
watersports directly generates:
---------------------------------------------------------------------------
\3\ https://outdoorindustry.org/wp-content/uploads/2017/04/
OIA_RecEconomy_FINAL_
Single.pdf, pg. 18
$139,971,810,172 in retail spending
1,234,876 jobs
$43,893,049,709 in salaries and wages
$10,618,742,884 in federal taxes
$9,601,521,150 in state and local taxes
The US Bureau of Economic Analysis confirms that the economic
benefits of water-based recreation is significant in the United States.
The Bureau calculated that in 2017 boating and fishing were responsible
for over $38 Billion of gross economic output.\4\
---------------------------------------------------------------------------
\4\ https://www.bea.gov/data/special-topics/outdoor-recreation
---------------------------------------------------------------------------
Clean surface water is an economic engine that deserves protection
at least as strong as the Clean Water Rule afforded, if not stronger.
People do not want to swim, fish, or paddle on rivers and lakes that
are marred by unhealthy or environmentally damaging levels of water
pollution. Weakening regulations relating to water quality would
directly threaten the recreation and tourism economies of countless
communities across the United States. American Whitewater partners with
many commercial outfitters, equipment manufacturers, and rural
municipalities that would be directly financially impacted if water
quality were degraded. We do not feel that the Administration has
recognized these economic benefits (jobs) associated with the Clean
Water Rule, nor recognized that these benefits would be eroded by
weakened regulations. The EPA can best protect rural, recreational, and
tourism economies by maintaining or strengthening water quality
regulations.
The proposed rule changes would strip protections from many rivers
and streams that do not have constant instream flows. This ignores the
obvious: when it rains these rivers begin flowing and flush discharged
pollution downstreams. Most whitewater rivers and streams can only be
descended during these times of higher-than-normal flows caused by
rainfall or snowmelt. Surface runoff and pollution often spike during
these times, even under the current rules. Additionally, whitewater
boating requires submersion as paddlers get splashed, flip over, and
occasionally swim. It is part of the fun, but not if the water that
gets in our mouths, ears, nose, and any cuts is polluted. Reducing
regulatory protections for surface waters can and will make paddlers
sick. We believe it is the duty of the EPA to keep citizens who
recreate in rivers, from paddlers to kids playing in creeks, safe from
water pollution by, at a minimum, maintaining the existing suite of
water quality regulations.
The old adage that ``we all live downstream'' certainly applies as
the Administration moves to turn a blind eye to discharging pollution
in our Nation's headwaters. Unregulated upstream discharges have the
strong potential to impact private property along the river downstream.
Pollution could reduce the value of property by tarnishing or
eliminating the elevated property values and enjoyment associated with
being located on a water body that supports swimming, fishing,
paddling, and nature observation. It could also impact a property
owner's rights to make use of the water for a wide range of purposes
from watering their garden to running a canoe outfitting business.
The recovery of our nation's rivers following the passage of the
Clean Water Act has been truly remarkable--though the result has been a
tenuous balance between pollution discharges and public health. Many
rivers and streams are far from thriving, and exist very near critical
public health and ecological function thresholds. Loosening regulations
would tip many rivers past these thresholds, putting people, fish, and
livelihoods at risk.
American Whitewater feels strongly that regulations relating to
water quality should be maintained, and only be modified if doing so
serves to strengthen protections for public health and water quality.
For the reasons stated above, we ask that the Subcommittee do whatever
possible to redirect the Administration's efforts to reduce the
applicability of the Clean Water Act.
Proposed EPA Section 401 Rules Severely Restrict the Ability of the
States to Protect Clean Water and Regulate Future Impacts from
Hydropower Projects
The EPA is proposing rules that would fundamentally undermine a
vital section of the Clean Water Act and weaken the role of the states
as the primary guardians of water quality in federally-permitted energy
projects. Ensuring that the construction and operation of these energy
projects both balance power generation with protecting environmental
quality, and in addition, assuring that these projects meet state water
quality standards is based on principles of cooperative federalism, a
framework that is threatened by these proposed rules.
Section 4(e) of the Federal Power Act states that the Federal
Energy Regulatory Commission (FERC) is required ``in addition to the
power and development purposes for which licenses are issued, shall
give equal consideration to the purposes of energy conservation, the
protection, mitigation of damage to, and enhancement of, fish and
wildlife (including related spawning grounds and habitat), the
protection of recreational opportunities, and the preservation of other
aspects of environmental quality.'' \5\ This ``equal consideration''
established under the Electric Consumer Protection Act of 1986 \6\ does
not necessarily result in equal treatment of power and non-power
values. Congress noted that FERC must `` . . . give these
nondevelopmental values the same level of reflection as it does power .
. .'', but this reflection does not `` . . . necessarily result in
their equal treatment.'' \7\ Undermining the vital role of the states
in protecting water quality under the Clean Water Act will leave FERC
with the discretion to prioritize generation over the protection of
environmental quality, resulting in a weakening of water quality
protections.
---------------------------------------------------------------------------
\5\ 16 U.S.C. 797(e)
\6\ Public Law 99-495
\7\ H.R. Conf. Rep. No. 934, 99th Cong., 2d. Sess. at 22.
---------------------------------------------------------------------------
1. Background on Section 401 of the Clean Water Act
Prior to the Clean Water Act, the Federal Power Commission allowed
the complete dewatering of rivers for hydropower dams, and we are still
dealing with that legacy today. In enacting the Clean Water Act,
Congress established a system of cooperative federalism, whereby
states--in partnership with federal agencies--are granted meaningful
authority to ensure that federally-licensed activities including
hydropower generation balance the desire for power generation with the
protection of environmental values.
The primary mechanism for maintaining and restoring a high level of
water quality is section 401 of the Clean Water Act. Under this
section an applicant for a federal license to conduct an activity
resulting in a discharge into navigable waters is required to first
obtain a certification from the state where the project is located. The
applicant must ensure that it will comply with state water quality
standards. Section 401 certifications contain conditions that must be
included as articles in a FERC license lasting 30-50 years and
typically include requirements for minimum instream flows along with
other measures relating to its water quality standards. States have one
year to either grant, grant with conditions, or deny certification. If
they fail to do so within that one year period, they waive their rights
and the project can be licensed without certification that the project
complies with state water quality standards.
2. Recent Developments Threatening the Ability of States to Protect
Water Quality
Over the past several years, there have been ongoing efforts to
undermine the Clean Water Act. In the last Congress, the energy
industry and its allies in Congress attempted to pass legislation that
would limit the ability of states to determine whether a project
complies with water quality standards.\8\ Having failed in its effort
to persuade Congress to weaken the Clean Water Act, the energy industry
and its allies in the executive branch now seek to circumvent Congress
through the administrative rulemaking process. At the same time, a
recent court decision interpreting section 401 limits the amount of
time that the states have to review projects for compliance with water
quality standards.\9\ FERC and now the EPA are attempting to extend the
holding in that case to a broad range of energy projects, and revise
its interpretation of the certification requirement to overturn two
Supreme Court decisions, discussed infra, that upheld the authority of
states to impose conditions and assure compliance with water quality
standards for energy projects.\10\ The convergence of an industry-
friendly administration willing to disregard environmental impacts
combined with a misguided interpretation of the certification deadline
by the Court of Appeals has created this perfect storm that poses an
existential threat to vital Clean Water Act protections.
---------------------------------------------------------------------------
\8\ Hydropower Policy Modernization Act of 2017
\9\ Hoopa Valley Tribe v. Federal Energy Regulatory Commission, 913
F.3d 1099 (2019)
\10\ S. D. Warren Co. v. Maine Board of Environmental Protection,
547 U.S. 370 (2006)
---------------------------------------------------------------------------
Last January, the D.C. Circuit ruled in Hoopa Valley Tribe v. FERC
that the states of California and Oregon waived their 401 authority by
failing to either issue or deny certification within one year of
application, invalidating a FERC-approved practice where project
applicants would withdraw-and-resubmit their applications for water
quality certification by the state in order to extend the 1-year
deadline.\11\ Since the Hoopa decision, FERC has found waiver of state
section 401 authority in cases where there was no explicit agreement
between a state and licensee to withdraw-and-resubmit water quality
certification applications.\12\
---------------------------------------------------------------------------
\11\ Hoopa Valley Tribe v. Federal Energy Regulatory Commission,
913 F.3d 1099 (2019)
\12\ Placer County Water Agency, 167 FERC para.61,056 (Apr. 18,
2019)
---------------------------------------------------------------------------
The threat to state 401 authority from the Hoopa decision and
subsequent extension by FERC has been compounded by Executive Order
13868 that alleges ``[o]utdated Federal guidance and regulations
regarding section 401 of the Clean Water Act . . . are causing
confusion and uncertainty and are hindering the development of energy
infrastructure.'' Following the Executive Order, the EPA issued interim
guidance and now has proposed new regulations that are basically an
industry wish list of ways to eliminate any meaningful role of the
states in protecting water quality in federally-issued licenses.
The EPA now proposes a complete rewrite of the section 401
certification regulations that would fundamentally weaken the ability
of the states to assure that energy projects comply with water quality
standards by limiting the ability of the states to obtain necessary
information, limiting the time for the states to review an application,
and limiting the scope of states' mandatory conditioning authority. At
the same time, the rules place the burden on the states to justify any
conditions or denial, shifts the appeals process from state to federal
court, and prevents the states from enforcing its own water quality
standards. The intent of the proposed rule is to prevent states from
imposing conditions on federal licenses and seeks to aid industry in
challenging or appealing certification conditions rather than
supporting efforts by the state to assure that federally-licensed
energy projects comply with state water quality standards as Congress
intended.
3. Proposed Rules Prevent States from Adequately Reviewing Section 401
Applications
While certification is a precondition to the issuance of a FERC
license, the CWA provides that certification is waived if the state
fails or refuses to act on the certification request within the
specified time that the EPA now proposes to shorten dramatically. The
proposed rules give the federal licensing agency the exclusive ability
to set the deadline for states to complete their environmental review
of project impacts on water quality, but in no circumstance can the
deadline extend beyond one year. In the case of FERC licenses for
hydropower projects the EPA suggests that a six-month deadline is
sufficient despite the fact that the applicant may not have provided
the state with complete information and despite the fact that FERC will
not have completed its own environmental review. For Army Corps section
404 permits, the EPA suggests a 60-day review period is sufficient.
This rule change will prevent the states from having enough time to
complete a meaningful review of a project's environmental impacts.
The proposed rules start the time clock for state certification
when an applicant submits a bare bones request to the state
certification agency, rather than when the applicant provides the state
with complete information to allow it to begin its environmental
review. There is no requirement that the applicant provide any
information about the impact of the project on water quality or
demonstrate compliance with state water quality standards.
The proposed rule gives state certifying agencies only 30 days to
request additional information from the applicant, and in addition,
limits the ability of certification agencies to request additional
information to only that information that can be collected or generated
by the FERC deadline; it also limits the type of information that can
be requested. This would only allow states to rely on FERC-approved
studies as a basis for making a certification determination. This is a
particular concern given FERC's unwillingness to require studies
requested by state certification agencies. Because the needs of
certifying agencies are distinct from those of FERC, sole reliance on
studies required by FERC will not provide sufficient information for
those agencies to determine whether the project will comply with water
quality standards. Currently there is no such limitation on information
requests.
4. Proposed Rules Limit Scope of Section 401 Conditions Allowed
The scope of the certifying agency's section 401 authority is
limited under these rules to assuring that a discharge from a permitted
activity will comply with water quality requirements. Impacts from
activities not related to the discharge are beyond the scope of 401
according to the proposed rules. This limitation is in direct conflict
with two of the Supreme Court's seminal Clean Water Act cases. Contrary
to the Supreme Court's holding in S. D. Warren Co. v. Maine Bd. of
Environmental Protection, 547 U.S. 370 (2006), the proposed rules
narrowly interpret the word ``discharges'' to apply only to point-
source discharges. In addition, the proposed rules make clear that the
EPA seeks to overturn PUD No. 1 of Jefferson County and City of Tacoma
v. Washington Department of Ecology, 511 U.S. 700 (1994) (PUD No. 1)
where the Court held that section 401 empowers states to prescribe
conditions addressing impacts from the project activities as a whole
rather than only those impacts that result from the discharge itself,
relying on the dissent by Justice Thomas despite it having no force of
law. Additionally, the proposed rules limit section 401 authority to
assuring compliance with water quality requirements rather than water
quality standards, further narrowing the scope of review to only those
aspects of WQS pertaining to water quality. The rules would limit the
ability of states to prescribe conditions relating to anything other
than direct impacts to water quality from the discharge, excluding
impacts from any other requirements in state laws or regulations,
impacts to recreation access for fishing and boating and use of project
lands, impacts from non-point source pollution, impacts from project
operations on reservoirs, impacts on aesthetics, and impacts on fish
passage.
5. Proposed Rules Permit Federal Agency to Reject State 401 Conditions
Under current requirements, federal permit granting agencies may
not issue a license for an activity resulting in a discharge into
navigable waters where the certifying agency denies a water quality
certificate. In addition, federal agencies must include as license
conditions all requirements contained in section 401 water quality
certifications. The proposed rules would for all intents and purposes
eliminate the requirement that federal agencies include state-mandated
conditions in project licenses, and in addition, limit the ability of
states to deny certification to projects that fail to comply with state
water quality standards. The proposed rules require state certification
agencies to justify any conditions and to explain whether a less
stringent condition could satisfy water quality requirements. We can
expect that FERC will find some fault and reject state required
conditions whenever they are more stringent than its own. This is a
change from the current procedures that require FERC acceptance of
state conditions in almost all cases.
While a state certification agency may deny certification if it is
unable to certify that the project will comply with water quality
requirements, the proposed rules do not allow certifying agencies to
deny certification for reasons beyond what the EPA considers to be the
narrow scope of the state's section 401 authority, excluding any
requirement of state and local laws other than EPA-approved aspects of
state water quality standards dealing with water quality impacts from
discharges from the project. The proposed rules require that the
certifying agency justify its certification denial to the federal
agency. It is unclear as to whether the failure of an applicant to
provide sufficient information upon which to evaluate the certification
request is a sufficient basis for denial. These proposed rules define
the failure or refusal to act not only in terms of time, but also as
the constructive failure to act through denial of certification or the
imposition of conditions based on criteria other than EPA-approved
water quality impacts from the discharge. This is a major change from
current requirements and would in our view require a legislative
change.
6. Proposed Rules Weaken Enforcement of State Water Quality Standards
The proposed rules shift appeals over state certification
conditions from state courts where the project proponent has the burden
to show compliance with water quality standards to federal court where
the state certifying agency has the burden to show that certification
conditions comply with EPA rules. The rules place the burden of proof
on the certifying agency to demonstrate that it has acted within the
proper scope of authority in imposing the condition or denial rather
than placing the burden of showing non-compliance with the EPA, FERC,
or project applicant.
Under the proposed rules, state certification agencies have no
continuing jurisdiction over compliance with conditions in the
certification as enforcement is left to FERC's discretion. The rules
attempt to prevent states or individuals from pursuing a cause of
action under the CWA to enforce conditions in the certification or to
address violations of state water quality standards. The proposed rules
also question the appropriateness of provisions that permit certifying
agency to reopen certification based on changed conditions or other
impacts, and are unclear whether states have jurisdiction over post-
license maintenance and repair projects that have an impact on water
quality.
Conclusion
American Whitewater appreciates this opportunity to provide this
testimony to the House Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment, and commends the
Subcommittee for its work to maintain essential Clean Water Act
protections.
Statement of the Environmental Working Group, Submitted for the Record
by Hon. Grace F. Napolitano
Per- and polyfluoroalkyl substances, or PFAS, are a class of widely
used chemicals that contaminate countless rivers, lakes, streams and
other waterways regulated under the Clean Water Act. PFAS chemicals are
linked to cancer, harm to the reproductive and immune systems, hormone
disruption, liver and kidney damage, changes in serum lipid levels, and
hormone disruption.\1\ EWG has identified more than 700 communities
contaminated with PFAS chemicals,\2\ including 297 military
installations,\3\ and estimates that over 100 million Americans may
have PFAS in their drinking water.\4\
---------------------------------------------------------------------------
\1\ https://www.nrdc.org/sites/default/files/media-uploads/
nrdc_pfas_report.pdf
\2\ https://www.ewg.org/release/pfas-map-update-new-data-show-712-
contamination-sites-49-states
\3\ https://www.ewg.org/release/new-pfas-detections-reported-90-
additional-army-installations
\4\ https://www.ewg.org/research/report-110-million-americans-
could-have-pfas-contaminated-drinking-water
Figure 1: Map of 712 PFAS Sites
A defining characteristic of PFAS is the carbon-fluorine bond, one
of the strongest bonds in chemistry. This characteristic means that
once PFAS chemicals are released into the environment, they never break
down in the environment, leading some to dub them ``forever
chemicals.'' \5\ PFAS are also highly mobile, which means that after
they are released into the environment, they can quickly spread to and
contaminate a large geographic area. Because PFAS are so persistent,
they will continue for decades to expose people in communities where
they have been released, unless the PFAS is removed.
---------------------------------------------------------------------------
\5\ https://www.washingtonpost.com/opinions/these-toxic-chemicals-
are-everywhere-and-they-
wont-ever-go-away/2018/01/02/82e7e48a-e4ee-11e7-a65d-
1ac0fd7f097e_story.html?
arc404=true
---------------------------------------------------------------------------
PFAS contaminate ground and surface water used for drinking water.
They contaminate the water used to irrigate, and sewage sludge used to
fertilize farmland. Crops and plants have been shown to uptake PFAS, so
they can contaminate fruits and vegetables.\6\ PFAS build up in animals
like fish, deer and cows exposed to PFAS-contaminated water or feed. In
some cases, residents have been warned not to eat fish \7\ or deer,\8\
and some farmers have had to euthanize their cattle as a result of PFAS
contamination.\9\
---------------------------------------------------------------------------
\6\ https://www.ncbi.nlm.nih.gov/pubmed/30502744
\7\ https://www.michigan.gov/pfasresponse/0,9038,7-365-
86512_88987_88989---,00.html
\8\ https://www.michigan.gov/pfasresponse/0,9038,7-365-
86512_88981_88982---,00.html
\9\ https://www.theguardian.com/us-news/2019/feb/20/new-mexico-
contamination-
dairy-industry-pollution
---------------------------------------------------------------------------
PFAS also build up in the blood serum and organs of people who
consume contaminated food and water, and they can stay in the human
body for decades. One report by the Centers for Disease Control and
Prevention's National Health and Nutrition Examination Survey, or
NHANES, found some level of PFAS in the blood of 97 percent of
Americans \10\ and about one-quarter of Americans have unsafe levels of
PFAS in their blood.
---------------------------------------------------------------------------
\10\ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4483690/
---------------------------------------------------------------------------
PFAS are also almost entirely unregulated under every major
environmental statute, including the Clean Water Act. No one knows
exactly how much PFAS is released into the environment or the extent of
the current pollution. Military and civilian firefighters continue to
use PFAS-laden firefighting foams that seep into drinking water
supplies. Because these fluorinated foams have been used for decades,
hundreds of military installations have been contaminated. Because PFAS
have not been designated as hazardous substances under the federal
Superfund law, there are no requirements to clean up them up at these
military installations or other contaminated sites.
Moreover, manufacturers continue to discharge PFAS into the air and
water. EWG suspects that there are nearly 500 facilities that discharge
PFAS chemicals into the environment,\11\ but these manufacturers are
not subject to any discharge limits or reporting requirements specific
to PFAS. Water utilities are not federally required to remove PFAS from
our tap water or even test for its presence.
---------------------------------------------------------------------------
\11\ https://www.ewg.org/news-and-analysis/2019/06/pfas-nation-
toxic-discharges-suspected-
almost-500-industrial-facilities
Figure 2: Map of Suspected PFAS Discharges
H.R. 3616, the Clean Water Standards for PFAS Act of 2019,
introduced by Reps. Chris Pappas, Elissa Slotkin, Brendan Boyle, and
Madeleine Dean, is an important first step in turning off the tap for
toxic PFAS and limiting PFAS releases into the environment. The bill
would designate PFAS as toxic pollutants under section 307(a) of the
Clean Water Act and require EPA to establish effluent limitations and
pretreatment standards for PFAS.
Toxic pollutants are subject to the National Pollutant Discharge
Elimination System, or NPDES, permitting program under the Clean Water
Act. NPDES permits include limits on the amount of toxic pollutant
allowed in discharges from point sources. H.R. 3616 would also require
the development of effluent limitation guidelines for key industry
sectors that are responsible for discharges of PFAS and other toxic
pollutants. Effluent limitations are technology-based regulations that
are intended to represent the greatest pollutant reductions that are
economically achievable for an industry. Effluent limitations are
incorporated into NPDES permits for direct dischargers. H.R. 3616 would
also require treatment standards for PFAS before they can be discharged
into publicly owned treatment works. Pretreatment standards are
designed to reduce toxic pollutant discharges into municipal sewer
systems and the environment.
Putting these limits in place would reduce human exposure to PFAS
by significantly reducing the amount of PFAS released into the
environment and the subsequent burden on wastewater and water
utilities. H.R. 3616 will also give industrial PFAS users more
regulatory certainty with regard to potential liability under the
Comprehensive Environmental Response Liability and Compensation Act, or
CERCLA. Also known as the Superfund Law, CERCLA jumpstarts the cleanup
process at many contaminated sites. Another House bill, H.R. 535, the
PFAS Action Act, would require the EPA to designate PFAS as hazardous
substances under CERCLA. Because releases of toxic pollutants in
compliance with section 402 NPDES permits are considered ``federally
permitted releases,'' \12\ facilities that release PFAS in compliance
with the limits set forth in a section 402 NPDES permit will be
shielded from liability.\13\
---------------------------------------------------------------------------
\12\ See 42 U.S.C. Sec. 9601(10).
\13\ 42 U.S.C. Sec. 9607(j).
---------------------------------------------------------------------------
Congressional action is needed to address PFAS because President
Trump's EPA has refused to act. Last year the Trump Administration
proposed a PFAS Action Plan \14\ that did nothing to address the
growing PFAS contamination crisis.
---------------------------------------------------------------------------
\14\ https://www.epa.gov/pfas/epas-pfas-action-plan
---------------------------------------------------------------------------
H.R. 3616 would provide a critical first step toward addressing the
ongoing PFAS contamination crisis. The House of Representatives
recognized this when it added H.R. 3616 as an amendment to H.R. 2500,
the National Defense Authorization Act for FY 2020. However, both the
House and Senate versions of the NDAA for FY 2020 include additional
critical bipartisan PFAS reforms. In particular, provisions in both
versions of the NDAA would require polluters to clean up legacy PFAS
contamination; set a deadline for the EPA to develop a set of drinking
water standards; end the military's use of PFAS in firefighting foam
and food packaging; ensure proper disposal of PFAS wastes; require the
disclosure of PFAS discharges into the water and air; and expand
monitoring for PFAS. In particular, the Dingell-Kildee amendment to
H.R. 2500 would designate PFAS as hazardous substances under CERCLA. By
conferring this designation, the Dingell-Kildee amendment will kick-
start the remediation process at the sites most contaminated by PFAS
and ensure that polluters pay their fair share of cleanup costs.
EWG appreciates the Subcommittee's attention to this issue and
looks forward to working with the Transportation and Infrastructure
Committee this Congress.
Appendix
----------
Questions from Hon. Peter A. DeFazio to Hon. David Ross, Assistant
Administrator, Office of Water, U.S. Environmental Protection Agency
Waters of the United States
Question 1. The agencies recently finalized their repeal of the
2015 Clean Water Rule and have proposed a far weaker replacement rule
but have not analyzed hundreds of jurisdictional determinations made
using the 2015 Rule to see how it worked in practice. Why did the
current administration ignore the best evidence of how the 2015 Rule
functions?
Answer. In developing the final Navigable Waters Protection
Rule,\1\ EPA and the Department of the Army evaluated potential impacts
of the rule to categories of waters, Clean Water Act (CWA) programs,
and regulated entities. Due to significant data limitations that are
discussed in both the Economic Analysis and the Resource and
Programmatic Assessment for the final rule, the agencies' analyses are
largely qualitative. These documents are publicly available on EPA's
website (https://www.epa.gov/wotus-rule/navigable-waters-protection-
rule-step-two-revise).
---------------------------------------------------------------------------
\1\ The final Navigable Waters Protection Rule to define "Waters of
the United States" was published in the Federal Register on April 21,
2020.
---------------------------------------------------------------------------
As for analyzing the approved jurisdictional determinations (AJDs)
that were made under the 2015 Rule, EPA notes there was a relatively
small number of AJDs made under the 2015 Rule before it was stayed by
the courts nationwide in October 2015. Since the nationwide stay was
lifted in early 2018, less than half of the country was subject to the
2015 Rule. The 2015 Rule was never implemented in 13 states and has now
been declared to have exceeded the agencies' authority under the
CWA,\2\ so the available data are not national in scope.
---------------------------------------------------------------------------
\2\ See Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922 (S.D.
Ga. Aug. 21, 2019), and Texas v. EPA, 389 F. Supp. 3d 497 (S.D. Tex.
2019).
Question 2. What is your best estimate of the length of streams and
the acreage of ponds and wetlands that your proposed rule will exclude
from the protections of the Clean Water Act?
Answer. Although EPA publishes information on its website (https://
watersgeo.epa.gov/cwa/CWA-JDs/) concerning locations where EPA or the
U.S. Army Corps of Engineers have determined, on a case-by-case basis,
whether particular waters are or are not ``waters of the United
States,'' the agencies are not aware of any datasets or maps that fully
depict the jurisdictional extent of all waters under the 2015 Rule,
pre-2015 practice, or the scope of CWA jurisdiction at any point in the
history of this complex regulatory program.
Due to existing data and mapping limitations, it is not possible to
accurately determine the full scope of waters that are ``in'' or
``out'' under any ``waters of the United States'' definition. When the
Navigable Waters Protection Rule was proposed, some claimed that 51
percent of the nation's wetlands and more than 18 percent of the
nation's streams would lose CWA protection. It is unclear whether those
claims were using, as a baseline, the expansive 2015 Rule that has now
been found to exceed the federal government's statutory authority, or
whether the claims misinterpret the scope of CWA jurisdiction under
pre-2015 Rule practice. In any event, these estimates are highly
unreliable and are based on stream and wetland datasets that were not
created for regulatory purposes and which have significant limitations.
Purported statistics of jurisdictional changes are unreliable and
inherently inaccurate, in part because:
there are currently no comprehensive datasets through
which the agencies can depict the universe of ``waters of the United
States;'' and
the datasets used to generate the claims cited above--the
U.S. Geological Survey (USGS) National Hydrography Dataset (NHD) and
the U.S. Fish and Wildlife Service (FWS) National Wetlands Inventory
(NWI)--were not developed for regulatory purposes and have significant
technical limitations that prevent the agencies from using them to
identify CWA jurisdiction, regardless of the regulatory definition of
``waters of the United States.''
While the NHD and NWI are the most comprehensive hydrogeographic
datasets mapping waters and wetlands in the United States and are
useful resources for a variety of federal programs, including CWA
programs, they cannot be used as standalone tools to determine the
scope of CWA jurisdiction on a national level. Importantly, the
Navigable Waters Protection Rule covers tributaries with intermittent
flow and excludes other features with only ephemeral flow, but the
NHD--even at high resolution--cannot differentiate between intermittent
or ephemeral flow in most parts of the country. Further, the NWI uses a
different definition of ``wetlands'' than the agencies' regulatory
definition of ``wetlands.'' The NWI also does not contain information
sufficient to evaluate whether those mapped wetlands meet the
definition of ``adjacent wetlands'' under previous regulations or under
the final rule. For example, the NWI does not identify whether a
wetland is inundated by the nearest jurisdictional water.
The NHD has other limitations that prevent its use for accurately
mapping the scope of jurisdictional waters under the CWA, including:
errors of omission (e.g., failure to map streams that
exist on the ground);
errors of commission (e.g., mapping streams that do not
exist on the ground);
horizontal positional inaccuracies;
misclassification of stream flow permanence, particularly
in headwaters; and
inconsistent mapping in different parts of the country.
The NWI also has additional limitations, including:
errors of omission (e.g., failure to map wetlands that
exist on the ground);
errors of commission (e.g., mapping wetlands that do not
exist on the ground); and
potentially inaccurate wetland boundary identification.
While early in the regulatory process the agencies attempted to use
the NHD and NWI to assess the potential change in CWA jurisdiction as a
result of the proposed rule, the agencies ultimately concluded that the
limitations of these datasets preclude their use for quantifying the
extent of waters whose jurisdictional status could change under the
proposal. Due to these limitations, which were confirmed during the
public comment period for the proposed rule and through an extensive
evaluation by the agencies, the agencies did not use the NHD or NWI to
assess potential changes in jurisdiction as a result of the final rule.
It has been the consistent position of the agencies that the NHD
and the NWI do not represent the scope of waters subject to CWA
jurisdiction. Of note, the agencies did not use these maps to estimate
changes in jurisdiction when the 2003 Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Eng'rs (SWANCC) Guidance was issued,
when the 2008 Rapanos Guidance was issued, or when the 2015 Rule was
promulgated. As the agencies promulgated the 2015 Rule, EPA stated at
the time that they ``do not have maps depicting waters of the United
States under either present regulatory standards or those in the final
[2015] rule.'' \3\ This remains true today--the agencies do not have
maps of ``waters of the United States'' under the 2015 Rule, under the
2019 Rule, or under the Navigable Waters Protection Rule.
---------------------------------------------------------------------------
\3\ See Response to Comments for the Clean Water Rule, Clean Water
Rule Comment Compendium Topic 8: Tributaries, Docket ID. No. EPA-HQ-OW-
2011-0880-20872, p. 442, https://www.regulations.gov/document?D=EPA-HQ-
OW-2011-0880-20872.
---------------------------------------------------------------------------
In 2015, former EPA Administrator Gina McCarthy testified before
Congress \4\ about the NHD and the NWI. According to Administrator
McCarthy's testimony, those datasets:
---------------------------------------------------------------------------
\4\ Impact of the Proposed ``Waters of the United States'' Rule on
State and Local Governments: Hearing Before the H. Comm. on Transp. &
Infrastructure and the S. Comm. on Env't & Pub. Works, 114th Cong.
(2015) (testimony of Gina McCarthy, Adm'r, EPA).
were ``not used to determine jurisdiction and not
intended to be used for jurisdiction'';
``are not relevant to the jurisdiction of the `waters of
the U.S.' '';
``are not consistent with how we look at the jurisdiction
of the Clean Water Act''; and
have ``nothing to do, as far as I know, with any decision
concerning jurisdiction of the Clean Water Act.''
Under the previous administration, EPA Office of Water Acting
Assistant Administrator Nancy Stoner wrote to the House Committee on
Science, Space, and Technology that ``no national or statewide maps
have been prepared by any agency, including EPA, showing the scope of
waters subject to the Clean Water Act. . . . To develop maps of
jurisdictional waters requires site-specific knowledge of the physical
features of water bodies, and these data are not available[.]'' \5\
Former EPA Office of Water Deputy Assistant Administrator Ken Kopocis
wrote a similar letter to the House Science Committee, stating: ``These
[USGS] maps were not prepared for the purpose of, nor do they
represent, a depiction of the scope of waters protected under the Clean
Water Act.'' \6\ And in 2014, an EPA blog post entitled Mapping the
Truth stated, ``While these [USGS and FWS] maps are useful tools for
water resource managers, they cannot be used to determine Clean Water
Act jurisdiction--now or ever.'' \7\
---------------------------------------------------------------------------
\5\ Letter from Nancy Stoner, Acting Assistant Adm'r, EPA Office of
Water, to Hon. Lamar Smith, Chairman, Comm. on Science, Space, and
Tech., U.S. House of Representatives (July 28, 2014) (emphasis added).
\6\ Letter from Kenneth J. Kopocis, Deputy Assistant Adm'r, EPA
Office of Water, to Hon. Lamar Smith, Chairman, Comm. on Science,
Space, and Tech., U.S. House of Representatives (Jan. 8, 2015).
\7\ U.S. EPA, Mapping the Truth, THE EPA BLOG (Aug. 28, 2014),
https://blog.epa.gov/2014/08/28/mapping-the-truth/ (emphasis added).
---------------------------------------------------------------------------
Thus, the agencies are not able to estimate the length of streams
or the acreage of ponds and wetlands that would not be jurisdictional
under the proposed rule or the final rule. In the Resource and
Programmatic Assessment for the Navigable Waters Protection Rule:
Definition of ``Waters of the United States,'' the agencies provided
their best attempt to describe the potential effect of the final rule
on specific categories of aquatic resources.
a. If you cannot provide an estimate, do you have any idea how
many people's sources of drinking water supplies will be adversely
affected?
Answer. One may not assume sources of drinking water will be
adversely affected by the agencies' revised definition. If a source
water is not a ``water of the United States,'' states, tribes, and
local governments may have programs and policies in place to protect
that source water, and even if those are absent, activities that might
result in water quality degradation will not occur on all streams and
wetlands. To explore the relationship between ``waters of the United
States'' and sources of drinking water, the agencies attempted to
evaluate the spatial distribution of drinking water sources in relation
to streamflow classification (e.g., perennial, intermittent, ephemeral)
type by overlaying the source protection areas (SPAs) for surface water
intakes on the NHD at high resolution. Due to data limitations of the
NHD--in particular, the fact that the NHD does not identify
intermittent and ephemeral streams as separate categories in many parts
of the country--coupled with uncertainty regarding the jurisdictional
status of many intermittent streams and all ephemeral streams subject
to a case-specific significant nexus analysis under pre-2015 practice,
the agencies concluded that the exploratory analysis cannot
appropriately or accurately assess the potential effects of the final
rule on public water systems. In addition, the agencies note that the
mere presence of ephemeral streams in a SPA does not mean there will be
water quality degradation following the change in the definition of
``waters of the United States,'' as mentioned above.
b. Can you provide an estimate for the amount of increased
property damage due to flooding made worse by wetlands loss?
Answer. Due to existing data limitations described above, the
agencies are unable to make such estimates.
c. If the EPA is ignorant to the real-world public health and
safety impacts of its proposal, how does the agency expect people to
meaningfully participate in the rulemaking and how can EPA defend it as
good policy?
Answer. As part of the rulemaking process, the agencies invited
written pre-proposal recommendations and established an administrative
docket to accept recommendations from all interested parties. The
agencies received approximately 6,300 letters pre-proposal. The
agencies considered the input received from a wide range of
stakeholders as they developed the proposal to revise the definition of
``waters of the United States,'' including input received from states,
tribes, and local governments during the federalism and tribal
consultation periods. The agencies also provided opportunities for the
public, states, and tribes to participate in the rulemaking process
during the public comment period, via a public hearing, and state and
tribal forums held in four locations across the country. The agencies
solicited comment throughout the proposed rule's development on all
aspects of the proposal. The agencies listened to those directly
affected by the regulations. The public was given ample opportunity to
participate in the rulemaking process, and the agencies considered the
comments received in finalizing the rule.
The agencies also note that the final rule is primarily guided by
the statutory authority delegated by Congress under the CWA and the
legal precedent set by key Supreme Court cases. The Supreme Court has
twice ruled that the agencies misinterpreted the scope of their CWA
authority, and the agencies' 2015 Rule was found by a federal court to
have exceeded their statutory authority. The agencies' Navigable Waters
Protection Rule is designed to protect public health and the
environment while respecting the statutory authority that Congress
delegated to them. The agencies are precluded from exceeding their
delegated authorities to achieve specific policy, scientific, or other
outcomes.
Question 3. Since your replacement proposal is based on Justice
Scalia's opinion in the Rapanos case, how will EPA implement the Act in
those places where federal courts have ruled that Justice Kennedy's
more protective approach is controlling?
Answer. On February 28, 2017, the President issued Executive Order
13778 entitled Restoring the Rule of Law, Federalism, and Economic
Growth by Reviewing the ``Waters of the United States'' Rule. Section 1
of the Executive Order states, ``[i]t is in the national interest to
ensure the Nation's navigable waters are kept free from pollution,
while at the same time promoting economic growth, minimizing regulatory
uncertainty, and showing due regard for the roles of the Congress and
the States under the Constitution.'' The Executive Order directed EPA
and the Army to review the 2015 Rule for consistency with the policy
outlined in Section 1 of the Executive Order and to issue a proposed
rule rescinding or revising the 2015 Rule as appropriate and consistent
with law (Section 2). The Executive Order also directed the agencies to
``consider interpreting the term `navigable waters' . . . in a manner
consistent with'' Justice Scalia's plurality opinion in Rapanos v.
United States, 547 U.S. 715 (2006) (Section 3). As explained in the
preamble to the final rule, the agencies established a regulation that
defines ``waters of the United States'' to reflect the ordinary meaning
of the statutory term, as well as to adhere to Constitutional and
statutory limitations, the objective and policies of the CWA, and case
law, including the guiding principles that the Supreme Court has
articulated in Riverside Bayview Homes, 474 U.S. 121 (1985); Solid
Waste Agency of Northern Cook County v. U.S. Army Corps of Eng'rs
(SWANCC), 531 U.S. 159 (2001); and Rapanos for interpreting the reach
of the CWA.
While the agencies acknowledge that the plurality and Justice
Kennedy viewed the question of federal CWA jurisdiction differently in
Rapanos, the agencies find that there are sufficient commonalities
between these opinions. These similarities helped instruct the agencies
on where to draw the line between Federal and State waters in the final
rule.
In the final rule, the agencies note that since the Rapanos
decision, the Federal government has adopted a broad interpretation of
Justice Kennedy's concurring opinion, arguing that his ``significant
nexus'' test provides an independent basis for establishing
jurisdiction over certain ``waters of the United States.'' And rather
than limiting the application of Justice Kennedy's opinion to the
specific facts and wetlands at issue in that case, similar to their
treatment of the SWANCC decision, the agencies previously have applied
Justice Kennedy's reasoning more broadly to include, for example, the
application of the significant nexus test to determining jurisdiction
over tributaries, not just wetlands. Many courts have deferred to this
position, and some courts rely exclusively on Justice Kennedy's
significant nexus test while other courts have held that jurisdiction
can be established under either the plurality or concurring opinions.
The agencies' final rule, as explained in Section III of the preamble,
is informed in several key aspects by Justice Kennedy's opinion, but
the agencies now appropriately recognize some of the limiting
principles articulated within his concurring opinion, as well as the
principles articulated in Justice Scalia's plurality opinion in
Rapanos, the SWANCC majority opinion, and the unanimous decision in
Riverside Bayview.
Question 4. The replacement rule would surrender federal safeguards
for millions of miles of streams and tens of millions of acres of
wetlands, many of which are critical to endangered species. Have you
initiated consultation under the Endangered Species Act with the U.S.
Fish and Wildlife Service and National Marine Fisheries Service and, if
so, what input have you received?
Answer. The U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) were part of the interagency review
process for the final rule under Executive Order 12866. The agencies
have not initiated consultation under the Endangered Species Act (ESA)
with the FWS and NMFS and need not have done so, given applicable legal
requirements. The agencies address the requirements of the ESA in the
Resource and Programmatic Assessment for the Navigable Waters
Protection Rule: Definition of ``Waters of the United States.''
Regarding any estimates of the change in jurisdiction as a result
of the Navigable Waters Protection Rule, see the response to Question 2
above.
Question 5. Your proposal assumes that several states will step up
to protect some or all of the water bodies that you intend to exclude
from the law's safeguards.
a. Did you do any analysis of the present administrative,
financial, and political landscape in those states and the processes
which these states would need to navigate to adopt stricter-than-
federal requirements?
Answer. The agencies collected information from several sources to
characterize states' ability to regulate waters beyond the
jurisdictional scope of the CWA. The agencies' assessment is presented
in the supporting documents to the final rule, which are publicly
available on EPA's website (https://www.epa.gov/nwpr/navigable-waters-
protection-rule-supporting-documents).
b. For instance, your economic document predicts that Indiana will
fill in these gaps--what is Indiana's present willingness and capacity
to extend the full suite of Clean Water Act protections to all wetlands
and streams not covered by the proposed rule?
Answer. The commissioned literature review supporting the Navigable
Waters Protection Rule, which is available in the docket, identified
the variables most commonly used in the federalism literature that were
useful in anticipating how states could respond to the Navigable Waters
Protection Rule. The agencies relied on a subset of these variables
that were available to them and had the strongest bearing on the way
states may respond in order to conduct their analysis of potential
state responses to the final rule.
The agencies' analysis of potential state responses in the Economic
Analysis for the Navigable Waters Protection Rule: Definition of
``Waters of the United States'' lists Indiana in the highest response
category, which means the available data and information indicate
Indiana is likely to continue regulating beyond the scope of the CWA,
as Indiana does now, according to the agencies' research. The agencies
cannot predict conclusively how states will act in the future,
including whether Indiana will choose to extend its existing
protections in the future.
c. How many states currently have programs established to prevent
discharges of pollutants or dredged and fill materials to non-Waters of
the US?
Answer. The agencies have identified twenty-five states that have
chosen to regulate waters of the state that are not subject to federal
regulation under the CWA. This information is based on the agencies'
extensive research into how states regulate their aquatic resources.
However, the agencies do not have sufficient information at this time
to conclude that only those twenty-five states regulate some waters
that are not ``waters of the United States,'' and recognize that other
states may regulate such waters based on state program implementation
practices that the agencies were unable to include in their analysis of
state programs.
Question 6. You said several times during the hearing that you are
not proposing to eliminate Clean Water Act protections for intermittent
streams.
a. Your proposal explicitly took comment on excluding all but
perennial streams. Is that idea now completely off the table?
Answer. The revised definition of ``waters of the United States''
in the final Navigable Waters Protection Rule includes both
intermittent and perennial tributaries of traditional navigable waters
as ``waters of the United States.'' The agencies solicited comment on
all aspects of the proposed rule, including which tributaries of
traditional navigable waters should be regulated as ``waters of the
United States.'' An explanation of the categories of waters that are
and are not jurisdictional under the final rule is publicly available
on EPA's website (https://www.epa.gov/nwpr).
b. Please explain how your proposed definition of ``intermittent''
ensures that all waters which hydrologists would categorize as
intermittent will be protected.
Answer. Though ``intermittent'' is a commonly used scientific term,
the agencies proposed and subsequently finalized a definition of this
term for purposes of CWA jurisdiction to ensure that the regulation is
clear. Under the final rule, the term ``intermittent'' means ``surface
water flowing continuously during certain times of the year and more
than in direct response to precipitation (e.g., seasonally when the
groundwater table is elevated or when snowpack melts).''
Some public comments that the agencies received on the proposed
rule requested that the final rule require that groundwater
contributions be the source for perennial and intermittent flow in
``tributaries'' as defined in the rule. The agencies recognize that
groundwater input is an element of most scientific definitions of
perennial and intermittent flow, but decided not to mandate groundwater
input as the controlling element of the definition of ``perennial'' or
``intermittent'' in the final rule. As a threshold matter, the agencies
believe that such an approach would too narrowly limit CWA jurisdiction
over waters that provide continuous or intermittent and predictable
flow to traditional navigable waters in a typical year. For example,
many headwater streams in mountainous regions flow through channels
incised in bedrock with no groundwater interface with the bed of the
stream. These streams instead are fed by glacial or high elevation
snowpack melt. The same scenario may also exist in northern climates,
where spring flows could be fed almost exclusively through melting
snowpack absent elevated groundwater tables.
As noted in the final rule preamble, continuous surface flow during
certain times of the year may occur seasonally, such as in the spring
when evapotranspiration is low and the groundwater table is elevated.
Under these conditions, the groundwater table intersects the channel
bed and groundwater provides continuous baseflow for weeks or months at
a time, even when it is not raining or has not very recently rained.
Melting snowpack, as noted above, however, can be the sole or primary
source of continuous surface flow in tributaries during certain times
of the year. The agencies recognize that intermittent flow in certain
mountain streams, for example, may result primarily from melting
snowpack, not groundwater contributions to the channel. The agencies
did not propose or finalize a specific duration (e.g., the number of
days, weeks, or months) of surface flow that constitutes intermittent
flow under the final rule because the time period that encompasses
intermittent flow can vary widely across the country based upon
climate, hydrology, topography, soils, and other conditions. The
agencies believe that the definition of ``intermittent'' is consistent
with the scientific meaning of the term but is likely broader than most
scientific definitions because of the inclusion of flow generated from
melting snowpack.
Question 7. Considering the two letters raising alleged concerns
about the impact that disclosing documents would have on EPA's
deliberative process:
a. Are there documents responsive to the Committee's requests that
you have withheld?
b. Are any of those documents withheld based on their supposed
deliberative nature?
c. What privilege are you asserting?
d. Is that the sole privilege being asserted?
e. What is the basis for assertion of that privilege to withhold
documents from the Committee?
Answer (a.-e.). At the time, the Committee's requests were related
to ongoing regulatory actions. Given that status, the Agency was
particularly concerned about protecting the integrity of ongoing Agency
pre-decisional deliberations. Some of the documents you sought may well
reflect internal advice, recommendations, and analysis by Agency staff
and attorneys about the proposed rules. These internal and pre-
decisional deliberations are likely to be the subject of additional
discussions and analysis among Agency staff and senior policymakers
during development of these proposals and the subsequent finalization
of any regulatory action. It is critical for Agency policymakers to
obtain a broad range of advice and recommendations from their staff in
order to properly execute statutory obligations under the CWA and other
environmental statutes.
For ongoing rulemakings, disclosure of pre-decisional information
at this stage of the deliberations could raise questions about whether
the Agency's decisions are being made or influenced by proceedings in a
legislative or public forum rather than through the established
administrative process. In addition, disclosure of such information
could compromise the ability of Agency employees to provide candid
advice and recommendations during the Agency's ongoing deliberative
process and may have a chilling effect upon future Executive Branch
deliberations, making the rulemaking process, as a whole, less robust,
potentially impacting the Agency's mission.
As for completed rulemaking, the EPA recognizes the importance of
the Committee's need to obtain information necessary to perform its
legitimate oversight functions and is committed to continuing to work
with your staff on how best to accommodate the Committee's interests.
Groundwater Connection
Question 1. The Clean Water Act requires a permit for ``Any
addition of any pollutant to navigable waters from any point source.''
That language does not include an exemption for discharges via
groundwater, does it? Is there another provision of the Clean Water Act
that expressly exempts discharges via groundwater from permitting?
Answer. On April 23, 2020, the Supreme Court issued an opinion in
County of Maui v. Hawai'i Wildlife Fund, No. 18-260, addressing the
question of whether a Clean Water Act National Pollutant Discharge
Elimination System (NPDES) permit is required for releases of
pollutants from a point source that passes through groundwater before
reaching a navigable water. In a 6-3 decision, the Court held that an
NPDES permit is required ``when there is a direct discharge from a
point source into navigable waters or when there is the functional
equivalent of a direct discharge.'' Slip Op. at 15. In describing the
new ``functional equivalent'' standard, the Court stated that ``an
addition [of a pollutant] falls within the statutory requirement that
it be `from any point source' when a point source directly deposits
pollutants into navigable waters, or when the discharge reaches the
same result through roughly similar means.'' Slip Op. at 15. The Court
listed seven factors that ``may prove relevant (depending upon the
circumstances of a particular case)'' in determining if an NPDES permit
is required. Slip Op. at 16.
EPA is reviewing the Court's decision and considering how best to
address the Court's call for the Agency to provide further guidance,
including using the tools available to the Agency such as guidance and
rulemaking, to provide additional clarity, and less risk of future
litigation, for states and tribes, regulated entities, and the public.
Sewage ``Blending''
Question 1. The EPA has recently announced that it is considering
whether to authorize wastewater treatment plants to discharge partially
treated or ``blended'' sewage during wet weather events.
a. What information does EPA have about how many publicly owned
treatment works currently engage in blending and how much partially-
treated wastewater they are discharging into waterways?
b. How many of these treatment works are located in or near low-
income communities or communities of color?
c. What scientific evidence does the agency have to support that
discharging blended sewage is safe for public health and the
environment, particularly give the high level of pathogens in blended
sewage?
d. How many wastewater treatment plants are subject to short-term
(acute) limits on pathogen discharges in their NPDES permits to protect
the public from exposure to pathogens?
e. What information does the agency have about the effectiveness
of alternative or ``side-stream'' technologies that treatment plants
have proposed using in lieu of traditional treatment methods?
Answer (a.-e.). EPA's September 16, 2019 response (enclosed) to the
Chairman's July 29, 2019 letter to the Agency addresses these
questions. As stated in EPA's September 16, 2019 letter, the Agency's
rulemaking will be considering changes to the National Pollutant
Discharge Elimination System (NPDES) regulations to establish a
permitting framework for evaluating management options to provide
publicly owned treatment works (POTWs) serving separate sanitary sewer
systems flexibility in how they manage and treat peak flows. Any
proposed changes would seek to provide a consistent national approach
to permitting peak flows that ensures that all applicable permit
discharge limitations and requirements are met during peak flow events.
Once the proposal is published in the Federal Register, there will be a
public docket containing the information underpinning the Agency's
proposed action available for viewing on regulations.gov.
PFAS
Question 1. Mr. Ross, you have testified that PFAS pollution in
drinking water supplies poses an urgent threat to public health.
a. If so, why has EPA failed to use EPA's authority under Sec.
1412(D) of the Safe Drinking Water Act?
b. As you know, Sec. 1412(D) permits the EPA to promulgate an
interim national primary water drinking regulation to address an urgent
threat to public health regardless of whether the agency has completed
a cost-benefit analysis.
Answer (a.-b.). EPA is committed to following the drinking water
standard setting process outlined in the Safe Drinking Water Act
(SDWA). This process is designed to ensure public participation,
transparency, and the use of the best-available peer reviewed science
and technical information. On February 20, 2020, EPA took another
important step in implementing the Agency's PFAS Action Plan by
proposing regulatory determinations for PFOS and PFOA in drinking
water. The proposed regulatory determination was published in the
Federal Register on March 10, 2020. In that proposal, EPA is asking for
information and data on other PFAS substances, as well as seeking
comment on potential monitoring requirements and regulatory approaches
that EPA is considering for PFAS chemicals. After the public comment
period closes, EPA will evaluate all comments received, and then
finalizing a regulatory determination will be the next step in the
regulatory process.
Setting an ``interim'' National Primary Drinking Water Regulation
(NPDWR) under SDWA section 1412(b)(1)(D) would still require the Agency
to go through full notice-and-comment rulemaking and to build an
administrative record to justify the interim NPDWR. To develop a robust
and legally defensible administrative record for a NPDWR, the Agency
uses the Health Risk Reduction and Cost Analysis (HRRCA). This tool
requires significant data, information and analysis inputs, and much of
that information would also need to be developed for an interim NPDWR
and included in any rulemaking record. Moreover, the SDWA requires EPA
to produce a full HRRCA within 3 years of promulgating an interim
NPDWR. Developing a full HRRCA after the fact could mean that the final
analysis may or may not support the requirements of the interim
regulation, leading to potential revision or withdrawal of the interim
NPDWR. As such, this process could result in inefficient use of local,
state, and federal resources, diversion of infrastructure replacement
funds, increased water bills, and erosion of public trust.
Pursuant to section 1431(a) of the SDWA, EPA also has authority to
take necessary action to protect public health from imminent and
substantial endangerment to drinking water when state and local action
has been insufficient. Among other things, this authority enables EPA
to respond to contamination that threatens specific public drinking
water supplies. EPA has used its authority under section 1431 to issue
orders that require persons who have caused or contributed to PFAS
contamination to take actions as may be necessary to protect the health
of affected persons, including actions that reduce or prevent
exposures. For PFAS chemicals, EPA believes that section 1431(a)
provides a more immediate and impactful use of SDWA's emergency powers
for communities with known or threatened contamination.
Clean Water Act Section 401
Question 1. EPA has said that its 401-rulemaking effort represents
the first holistic review of section 401 of the CWA. Given that the
agency produced guidance on 401 in 1989 and a handbook in 2010, don't
these documents represent EPA's agency interpretation of the 401
regulations? What is the bar for ``analysis?'' Where are the elements
of analysis defined or listed? What legal precedent is there for
throwing out decades of agency documents and case law based on ``lack
of analysis?''
Answer. The Agency's existing water quality certification
regulations pre-date the Clean Water Act (CWA) and do not reflect the
actual language of section 401. As explained in the preamble for the
proposed rulemaking to update EPA's water quality certification rule,
although the 1989 guidance and the now-rescinded 2010 handbook included
a number of recommendations on scope, timing, and other issues related
to the water quality certification process, these recommendations were
not supported with robust analysis or interpretation of the CWA.
Indeed, the 2010 handbook was primarily a compilation of programs
adopted by states. EPA's section 401 rulemaking marks the first time
the Agency has undertaken a holistic review of the text of section 401
and the case law that has developed since the 1972 CWA amendments. This
is also the first time the Agency has subjected its analysis to public
notice and comment.
Question 2. Congress signaled that certifying authorities have
expertise and ability to evaluate potential water quality impacts,
which EPA acknowledges in the proposed rule. That being the case, why
does EPA propose to limit the information that a state can request as
part of that certification process, restrict certifying authorities'
ability to condition permits to meet their state resources needs, and
limit the time in which they can make their expert decisions?
Answer. The proposal does not limit the ability of states to
request information as part of the water quality certification process.
Further, the proposal's timeline to act on a certification request
simply aligns the proposed regulatory language with the plain language
of the statute, which requires states to act on a request for
certification ``within the reasonable period of time (not to exceed one
year).'' The proposal includes a scope of certification that is
consistent with the CWA and that appropriately focuses water quality
certifications and any related conditions on water quality. The EPA has
made enhancements in the final rule to provide additional clarity and
regulatory certainty.
Question 3. Regarding the scope of certification, section 401
identifies ``any effluent limitations and other limitations,'' (under
specifically identifies CWA regulatory programs) and ``any other
appropriate requirements under state law'' as subject to certification
and condition decisions. Given that Congress specifically identifies
CWA Provisions that should be considered for certification and
conditions and added ``any other appropriate requirements under state
law'' one would reasonably assume that this addition extends the scope
of 401 beyond the already enumerated CWA provisions.
a. Since it is the EPA's position that Congress chose its words
intentionally, can the EPA explain how it is appropriate to limit the
phrase ``any other appropriate requirement of state law'' to EPA-
approved CWA programs?
Answer. Section 401 contains several important undefined terms
that, individually and collectively, can be interpreted in varying ways
to determine the scope of a certifying authority's review and
authority, including the term ``any other appropriate requirement of
state law.'' The EPA has made enhancements in the final rule to provide
additional clarity and regulatory certainty. The Agency's rationale for
the final rule is laid out in the preamble.
b. Why did EPA decide to limit state conditions to state statutes
as opposed to administrative best management practices, which provide
more flexibility and place less administrative burden on states?
Answer. Given the text, structure, purpose, and legislative history
of the CWA and section 401, EPA proposed to interpret ``appropriate
requirement of state law'' for section 401 certification review in a
proposed definition of ``water quality requirements,'' which includes
those provisions of state or tribal law that are EPA-approved CWA
regulatory programs. The Agency's rationale for this interpretation is
laid out in the preamble of the proposed rule (see 84 Fed. Reg. 44080).
The EPA has made enhancements in the final rule to provide additional
clarity and regulatory certainty.
c. When the administration finalizes its ``Waters of the US''
rule, would the 401 rulemaking mean that states could non protect their
``non-Waters of the US' from adverse effects of federal permits?
Answer. Section 401 applies to potential discharges from federally-
licensed or permitted projects into waters of the United States. The
proposed section 401 rulemaking does not restrict a state's ability to
protect non-waters of the United States within their borders through
state authorities.
Yazoo Pumps
Question 1. On April 3, 2019, EPA Administrator Andrew Wheeler
confirmed to a Senate Appropriations subcommittee hearing that his
agency is now reconsidering a 2008 decision on the Yazoo dam pumps.
a. What are the justifications for this reconsideration?
b. What is the status of this EPA action?
Answer (a.-b.). Following the significant flooding along the lower
Mississippi River and the Yazoo backwater area, EPA and the U.S. Army
Corps of Engineers (Corps) have been discussing options to reduce the
flood risks in the Yazoo backwater area while protecting wetlands.
The Corps has provided additional data and analyses to EPA, and has
explained how it developed this information. At this time, we are
discussing what impact the new information might have on options for
the Yazoo backwater area, in terms of what an appropriate method might
be to reduce flood risks while protecting wetlands.
Pebble Mine Decision
Question 1. Does the EPA continue to support the science and
findings of adverse ecological impacts described in the 2014 Proposed
Determination for the Pebble Deposit Area, Southwest Alaska?
Answer. I have no comment on this matter as I am recused from any
decisions related to the Pebble Mine.
Question 2. If not, what new information has arisen to change this
determination and reconsider the project in its entirety?
Answer. I have no comment on this matter as I am recused from any
decisions related to the Pebble Mine.
Questions from Hon. Lizzie Fletcher to Hon. David Ross, Assistant
Administrator, Office of Water, U.S. Environmental Protection Agency
Question 1. During the hearing, I asked you about EPA's role in the
prevention of spills of hazardous substances under the Clean Water Act.
As you know, Section 311(j)(1)(C) directs the President to issue
regulations establishing procedures, methods, and equipment; and other
requirements for equipment to prevent discharges of oil and hazardous
substances from vessels and from onshore facilities and offshore
facilities, and to contain such discharges. The President has delegated
the authority to regulate non-transportation-related onshore facilities
landward of the coastline, under section 311(j)(1)(C) to EPA.
In February 2016, the EPA agreed, as part of a court-ordered
settlement, to propose hazardous substance spill-prevention rules for
industrial sites by June of 2018, and to issue a final rule in 2019.
After soliciting input about hazardous substance spills across the
country, the EPA issued a proposed rule to establish no new
requirements related to spills of hazardous substances under the Clean
Water Act. This in contradiction to the letter of the law and
Congress's directive.
The EPA's own analysis determined that 2,491 chemical releases
between 2007-2016 were Clean Water Act hazardous substances that
originated from non-transportation related sources. In looking at the
monetized damages of the spills, EPA failed to consider ``water supply
contamination.'' Given that the 2014 spill by a chemical storage
facility in West Virginia left more than 300,000 residents without
drinking water for at least a week, it is surprising that EPA would
fail to look at ``water supply contamination'' when estimating
monetized damages of spills.
a. In EPA's release announcing that this administration would no
longer take action to prevent contamination of drinking water sources,
your former boss, Scott Pruitt, suggested that such measures would be
``duplicative and unnecessary''. However, according to EPA's own data,
since the Charleston spill, there have been an additional 600 chemical
spills into local waterways--14 of which were severe enough to
contaminate local drinking water supplies. If we have seen an
additional 600 chemical spills in just a 3-year period, explain to me
how additional measures to reduce or eliminate chemical spills is
``unnecessary''?
Answer. EPA recognizes the concerns regarding threats to drinking
water systems. In the 40 years since Clean Water Act (CWA) section
311(j)(1)(C) was enacted by Congress, multiple statutory and regulatory
requirements have been established under different federal authorities
which serve, both directly and indirectly, to prevent and contain CWA
Hazardous Substances (CWA HS) discharges.
Those statutory and regulatory requirements include:
CWA National Pollutant Discharge Elimination System
Regulations \8\
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\8\ CWA National Pollutant Discharge Elimination System Regulations
Pretreatment Standards (40 CFR Part 403) and Multi-Sector General
Permit (MSGP) for Industrial Stormwater, issued by EPA in 2015. The
MSGP is a general permit that is available to facilities that do not
discharge to a state with NPDES permitting authority. Because many
states model their industrial stormwater permits after EPA's permit, it
was used to identify prevention requirements likely to be present in
NPDES industrial stormwater permits issued by states.
---------------------------------------------------------------------------
Toxic Substances Control Act Polychlorinated Biphenyl
Regulations \9\
---------------------------------------------------------------------------
\9\ 40 CFR 761
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CWA Effluent Guidelines and Standards for various point
source categories \10\
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\10\ Ore Mining and Dressing Point Source Category (40 CFR Part
440), Transportation Equipment Cleaning Point Source Category (40 CFR
Part 442), Construction and Development Point Source Category (40 CFR
Part 450), Concentrated Aquatic Animal Production Point Source Category
(40 CFR Part 451), and Pesticide Chemicals Point Source Category (40
CFR Part 455).
---------------------------------------------------------------------------
Risk Management Program Rule \11\
---------------------------------------------------------------------------
\11\ 40 CFR Part 68
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Spill Prevention, Control, and Countermeasure Rule \12\
---------------------------------------------------------------------------
\12\ 40 CFR Part 112
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Pesticide Regulations \13\
---------------------------------------------------------------------------
\13\ Pesticide Management Regulation (40 CFR Part 165) and
Pesticide Worker Protection Standard (40 CFR Part 170).
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Resource Conservation and Recovery Act Regulations \14\
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\14\ RCRA Generators Regulation (40 CFR Part 262) and RCRA
Treatment, Storage, and Disposal (TSD) Regulations (40 CFR Parts 264
and 265).
---------------------------------------------------------------------------
Underground Storage Tank Rule \15\
---------------------------------------------------------------------------
\15\ 40 CFR Part 280
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Emergency Planning and Community Right-to-Know Act
Regulations \16\
---------------------------------------------------------------------------
\16\ EPCRA Planning Rule (40 CFR Part 355) and EPCRA Reporting Rule
(40 CFR Part 370).
---------------------------------------------------------------------------
Pulp and Paper Effluent Guidelines \17\
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\17\ 40 CFR Part 430
EPA identified nine program elements \18\ that are commonly
contained in EPA regulatory programs provisions and that adequately
serve to prevent, contain, or mitigate CWA HS. EPA's analysis indicated
that these nine program elements are reflected in the framework of
EPA's existing regulatory requirements identified above.
---------------------------------------------------------------------------
\18\ The program elements identified are (1) Safety Information,
(2) Hazard Review, (3) Mechanical Integrity, (4) Personnel Training,
(5) Incident Investigations, (6) Compliance Audits, (7) Secondary
Containment, (8) Emergency Response Plan, and (9) Coordination of the
Emergency Response Program with State/Local Responders.
---------------------------------------------------------------------------
For this rulemaking, EPA analyzed CWA HS discharges reported to the
National Response Center (NRC) over a 10-year period between 2007-2016,
as well as voluntary survey data, to estimate the frequency, impacts,
and causes of discharges to identify what spill prevention requirements
are needed. For this period, EPA identified less than one percent of
all reports to the NRC for that period as CWA HS discharges originating
from non-transportation-related sources, with less than five percent of
those discharges having reported impacts. EPA concluded that based on
the reported frequency and impacts of identified CWA HS discharges, the
existing regulatory framework adequately serves to prevent and contain
CWA HS discharges.
EPA is unable to identify the 600 chemical spills cited in the
question, and in what three-year period these spills occurred, so the
Agency is unable to provide additional clarification. The question also
cited the January 2014 chemical spill in Charleston, WV. It is
important to clarify that had EPA reached a different conclusion in
this rulemaking and imposed additional requirements under CWA
311(j)(1)(c), those requirements would not apply to the Charleston, WV
spill. EPA notes that, in addition to the regulatory structure already
identified herein, recent statutory amendments to the Emergency
Planning and Community Right-To-Know (EPCRA) focus on notifications to
State drinking water primacy agencies, as well as on providing
community water systems with hazardous chemical inventory data.\19\
---------------------------------------------------------------------------
\19\ For more information, see America's Water Infrastructure Act,
Amendments to the Emergency Planning and Community Right-to-Know Act, A
Guide for SERCs, TERCs, and LEPCs [https://www.epa.gov/sites/
production/files/2019-12/documents/awia_fact_sheet_a_guide_
for_sercs_tercs_lepcs.pdf].
---------------------------------------------------------------------------
In summary, based on a review of the existing EPA programs in
conjunction with the frequency, impacts, and causes of reported CWA HS
discharges, the Agency believes the existing regulatory framework meets
the requirements of CWA section 311(j)(1)(C) and is serving to prevent,
contain, and mitigate CWA HS discharges. Therefore, in August 2019, EPA
determined to not establish new discharge prevention and containment
regulatory requirements under CWA section 311.
For more information on the framework of federal programs and
corresponding regulations, please see the Background Information
Document: Review of Relevant Federal and State Regulations \20\ and the
Supplemental Background Information Document: Additional Review of
Relevant EPA Federal and State Regulations in the docket (Docket ID No.
EPA-HQ-OLEM-2018-0024).\21\ For a review of the analyses of the
frequency of spills, the causes, and the impacts, see the Regulatory
Impact Analysis (RIA).\22\ This information can be found in in Appendix
A of the RIA for the final rule.
---------------------------------------------------------------------------
\20\ https://www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-
0113
\21\ https://www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-
0187
\22\ https://www.regulations.gov/document?D=EPA-HQ-OLEM-2018-0024-
0111
b. The number of releases (2,491) between 2007-2016 is likely an
underestimate. Even if it this is an accurate number, which EPA admits
it has incomplete information, what would be the annual number of Clean
Water Act hazardous substances releases before the EPA would decide to
use its authority under Section 211(j)(1)(C) and develop comprehensive
hazardous-substance spill-prevention regulations? What is an acceptable
number of hazardous substance spills in your mind? Alternatively, what
is an unacceptable number of spills that would push you to reverse
course and pursue protective standards under the Clean Water Act?
Answer. As described above, EPA believes that the identified
existing EPA regulatory programsadequately serve to prevent, contain,
and mitigate CWA HS discharges.
c. You mentioned existing regulations for hazardous substance
spills. EPA claims that existing requirements adequately cover the nine
program elements that EPA believes to be key for a discharge and
accident prevention program. What percentage of facilities are subject
to requirements covering all nine of those program elements for all the
hazardous substances they store? If spills are continuing to occur, it
would seem the existing requirement are insufficient. Why is EPA not
pursuing a comprehensive scheme under the Clean Water Act?
Answer. EPA used EPCRA Tier II information as the best available
data to estimate the universe of potentially affected facilities by
identifying those with CWA HS onsite. EPA's analysis indicates that,
for all nine program elements, there are cumulative regulatory
requirements for accident and discharge prevention relevant to CWA HS
under the existing framework. Based on a review of the discharges and
the frequency, causes, and impacts of those discharges, EPA believes
that the existing framework, as implemented through existing EPA
regulatory programs, adequately serves to prevent, contain, or mitigate
CWA HS discharges under section 311(j)(1)(C).
It is important to note that, while the final action does not
establish any new requirements, the CWA prohibits discharges of CWA HS
in quantities that may be harmful, with exceptions only where otherwise
permitted or under such circumstances or conditions as the President
may, by regulation, determine not to be harmful, irrespective of
whether facilities are subject to hazardous substance spill prevention
regulations.
d. EPA cited spill prevention regulations for oil as one of the
existing requirements. What is the justification for refusing to issue
regulations for hazardous substances on regulations for a different
hazardous substance, like oil?
Answer. The CWA HS spill prevention final action is not based on
any individual provision and/or program preventing CWA HS discharges,
but rather on how the cumulative framework of key prevention elements,
as implemented through existing EPA regulatory programs, adequately
serves to prevent, contain, or mitigate CWA HS discharges under section
311(j)(1)(C).
Questions from Hon. Eddie Bernice Johnson to Hon. David Ross, Assistant
Administrator, Office of Water, U.S. Environmental Protection Agency
Question 1. In your written testimony, you state that EPA's core
mission is ``protecting public health and the environment every single
day.'' Can you explain how EPA is achieving its core mission by
repealing the 2015 Clean Water Rule and narrowing the definition of
``Waters of the United States'' that will reduce the bodies of water
protected by the Clean Water Act, some of which are relied upon by
millions of Americans as their source of water supply?
Answer. EPA's core mission is to protect public health and the
environment by using the statutory authorities that Congress provides
to the Agency. Congress recognizes that there is more to environmental
protection than exclusive federal authority--the states and tribes are
partners that can and do regulate their own water resources.
EPA and the Department of the Army finalized a definition of
``waters of the United States'' that is superior to both the 1986 and
2015 Rules. The agencies revised previous regulatory definitions of
this term to distinguish between water that is a ``water of the United
States'' subject to federal regulation under the Clean Water Act (CWA
or Act) and water or land that is subject to exclusive state or tribal
jurisdiction, consistent with the scope of jurisdiction authorized
under the CWA and the direction in the Act to ``recognize, preserve,
and protect the primary responsibilities and rights of States to . . .
plan the development and use (including restoration, preservation, and
enhancement) of land and water resources . . . .'' 33 U.S.C. 1251(b).
In developing an appropriate regulatory framework for the final
rule, the agencies recognize and respect the primary responsibilities
and rights of states to regulate their land and water resources as
reflected in CWA section 101(b). 33 U.S.C. 1251(b); see also id. at
1370. The oft-quoted objective of the CWA to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters,''
id. at 1251(a), must be implemented in a manner consistent with
Congress' policy directives to the agencies. The Supreme Court long ago
recognized the distinction between federal waters traditionally
understood as navigable and waters ``subject to the control of the
States.'' The Daniel Ball, 77 U.S. (10 Wall.) 557, 564-65 (1870). Over
a century later, the Supreme Court in SWANCC reaffirmed the State's
``traditional and primary power over land and water use.'' SWANCC, 531
U.S. at 174; accord Rapanos, 547 U.S. at 738 (Scalia, J., plurality).
Ensuring that states and tribes retain authority over their land
and water resources, reflecting the policy in section 101(b), helps
carry out the overall objective of the CWA and ensures that the
agencies are giving full effect and consideration to the entire
structure and function of the Act. See, e.g., Rapanos, 547 U.S. at 755-
56 (Scalia, J., plurality) (``[C]lean water is not the only purpose of
the statute. So is the preservation of primary state responsibility for
ordinary land-use decisions. 33 U.S.C. 1251(b).'') (emphasis in
original). That includes the dozens of nonregulatory grant, research,
nonpoint source, groundwater, and watershed planning programs that were
intended by Congress to assist the states in controlling pollution in
the nation's waters, not just its navigable waters. These non-
regulatory sections of the CWA reveal Congress' intent to restore and
maintain the integrity of the nation's waters using federal assistance
to support state, tribal, and local partnerships to control pollution
of the nation's waters in addition to a federal regulatory prohibition
on the discharge of pollutants to its navigable waters. See e.g., id.
at 745 (``It is not clear that the state and local conservation efforts
that the CWA explicitly calls for, see 33 U.S.C. 1251(b), are in any
way inadequate for the goal of preservation.''). Regulating all of the
nation's waters using the Act's federal regulatory mechanisms would
call into question the need for the more holistic planning provisions
of the Act and the state partnerships they entail. Therefore, by
recognizing the distinctions between the nation's waters and its
navigable waters and between the overall objective and goals of the CWA
and the specific policy directives from Congress, the agencies can
fully implement the entire structure of the Act while respecting the
specific word choices of Congress. See, e.g., Bailey v. United States,
516 U.S. at 146 (1995); Nat'l Fed'n of Indep. Bus. v. Sebelius, 567
U.S. at 544 (2012).
Question 2. In your written testimony, you state that your Office
is focused on restoring the rule of law. However, every action EPA has
taken is to undermine the safety of clean drinking water. How can you
say that your Office is restoring the rule of law when it is
overturning decades of precedence and eroding the scope of the Clean
Water Act?
Answer. As I said in my written testimony, I am thankful for the
dedicated professionals working within EPA's Office of Water for their
service to this country and for their passion in delivering on the
Agency's core mission of protecting public health and the environment
every single day. America's drinking and surface water quality is much
better today than at any point during the history of our Agency.
EPA is precluded from exceeding its authority under the CWA, Safe
Drinking Water Act, and any other federal law the Agency administers to
achieve specific scientific, policy, or other outcomes. The Agency can
only exercise the authority that Congress delegates to it. EPA is not
eroding the scope of the CWA, it is finally providing clarity and
predictability tethered to a strong legal foundation that is designed
to ensure protection of our nation's navigable waters, as Congress
intended.
Question 3. In your written testimony, you state that the purpose
of Executive Order 13868 was to accelerate the construction of
pipelines as it related to section 401 of the Clean Water Act. Isn't
``acceleration to construct pipelines'' just a code word for ignoring
governing environmental protections to benefit industry polluters?
Answer. No. EPA's section 401 rulemaking seeks to increase the
transparency and efficiency of the 401 certification process and to
promote the timely review of infrastructure projects, while continuing
to ensure that Americans have clean water for drinking and recreation.
Question from Hon. Sam Graves to Hon. David Ross, Assistant
Administrator, Office of Water, U.S. Environmental Protection Agency
Question 1. In Ms. Bellon's oral testimony, she stated that EPA
recently repealed a water quality rule that the State of Washington
spent ten years adopting that addresses water quality issues related to
the State of Washington's citizens fish consumption. Can you explain
how EPA's repeal of the State of Washington's previously adopted water
quality standards is consistent with the concepts of cooperative
federalism in the Clean Water Act which this Administration has
asserted is a priority?
Answer. EPA has not repealed and is not proposing to repeal any
water quality rules that the State of Washington adopted. To the
contrary, in May 2019, EPA approved a suite of Clean Water Act (CWA)
human health criteria that were developed by the State of Washington
through a lengthy stakeholder process. EPA had originally disapproved
many of those criteria, but upon reconsideration, found the State's
standards to be based on sound science and protective of the State's
designated uses.
Because EPA approved Washington's criteria, EPA proposed to
withdraw its corresponding federally-promulgated human health criteria
for waters under the State of Washington's jurisdiction; EPA's final
rule withdrawing the federal criteria was published in the Federal
Register on May 13, 2020 (85 FR 28494). Once EPA's withdrawal of its
federally-promulgated criteria goes into effect, the State of
Washington's criteria will be effective for CWA purposes. EPA is
respectful of the state's primary role in determining its water quality
standards and its discretion in making resource- and risk-management
decisions related to protecting the health of its citizens. This action
will restore the balance mandated by the CWA, in which the states lead
the standards-setting process.
Questions from Hon. Peter A. DeFazio to Maia Bellon, Director,
Department of Ecology, State of Washington
Question 1. In your testimony, you mention that the Trump
administration is repealing the State of Washington's water quality
standards to protect human health from toxics in fish.
a. What legal standing does the Trump administration have to--or
by what legal standards can the Trump administration--repeal the
State's previously approved water quality standards?
b. If there is no legal standard for repealing these standards,
surely they are basing their decision on science. What science has the
Trump administration presented to repeal the State's water quality
standards?
Answer (a.-b.). The administration has no legal standing or
standards by which they can roll back Washington State's fish
consumption rule. That is why we have filed litigation against EPA to
stop their unlawful action, and asked them to cease course.
Under the Clean Water Act, 33 USC Sec. 1313(c), Congress provided
two circumstances under which EPA can revise a state's existing water
quality standards. Neither of these circumstances exist. The first
occurs when a state submits new or revised water quality standards to
EPA for review. Washington does not have a pending request to EPA to
revise or amend our current standards. Three years ago, in August of
2016, we submitted a new rule to EPA for review. Three months later, in
November 2016, EPA updated and finalized our current rule. That rule
work has been complete and final for three years. The second
circumstance is where Congress authorized EPA to revise a state's
existing water quality standards only if EPA dete1mines that revised or
new standards are necessary to meet the requirements of the Clean Water
Act. 33 USC Sec. 1313(c)(4)(B). In its May 2019 decision to repeal
Washington's existing water quality standards, EPA did not determine
that revised or new standards are necessary to meet the requirements of
the Clean Water Act.
Instead of complying with either of the procedures authorized by
Congress, EPA has taken the position that it has ``inherent authority''
to ignore the procedures and timelines established by Congress and roll
back Washington's existing standards at any time and for whatever
reason it chooses. This also addresses the second part of your
question.
Washington's 2016 rule meets the requirements of the Clean Water
Act. EPA is not claiming to have repealed Washington's rule for
scientific reasons. Along with its notice of repeal, EPA released a
Technical Support Document that does not contain any new science or
point to any specific science as a basis for their repeal.
Question from Hon. Sam Graves to Maia Bellon, Director, Department of
Ecology, State of Washington
Question 1. In your oral testimony, you stated that EPA recently
repealed a water quality rule that the State of Washington spent ten
years adopting and that addresses water quality issues related to the
State of Washington's citizens fish consumption. Can you provide
additional details on the State of Washington's decade-long stakeholder
engagement and effort to develop and promulgate the standards that EPA
recently repealed?
Answer. Washington's process to develop our fish consumption rule
began in 2010. We brought together stakeholders from the regulated
community (including businesses and municipalities) and the
enviromnental community as well as Native American tribes to develop a
rule that would work for Washingtonians.
In August of 2016, Washington State adopted a new fish consumption
rule and submitted it to EPA for review and approval. That November,
EPA issued an updated rule. Once again, we worked alongside similar
stakeholders and tribes--and launched a public process--to chart a
common path forward to implement the final 2016 rule that would both
keep our water clean and help the regulated community achieve
compliance as quickly as possible. We have been implementing that rule
without issue for three years now. EPA not only acted without first
consulting the state of Washington, they did so over our numerous
objections and refused to meet with us to hear our concerns. This is
not the Washington way.
[all]