please join me in welcoming him. [applause] >> thank you everyone for coming. thank you peter for inviting me and for future america. i am a weird individual. i'm actually trained as a political scientist but i do law and i do political philosophy so i like to merge these together to think about new technologies. today my job is to tell you how to look back 200 years and find information to help us. this is how political scientists think about war. this is a bargaining model. what it assumes is too rational actors making rational decisions

and this is literally how political scientists think about war. this isn't really how it works. we don't really think that since cyberspace with her ever serious. we don't look them square in the face like this. and for those of you that don't know this is -- and we don't square off in the face and in fact we don't do good battles like fun battles in cyberspace. we hit below the belt. we do just enough to be irritating but not enough to trigger what we consider an act of war. and this is really telling so how do we figure out when all of these below the belt issues are coming out. it would be really nice if we

had something like a dark mark from harry potter that told us when our networks were insecure, that all of our data would pop up on the screen. you are owned. the dark lord is coming. but we don't have any of this stuff. it's really hard to enforce our rights claims in cyberspace. this is where i think immanuel kant, is to the rescue. and we think about cyberspace and think about rights claims in enforcing our claims of justice and making sure that the state can protect us or different types of things const tells us a couple of things. when he says that the state needs to have a the monopoly on coercive force in order protect our rights. and to do this you have jurisdictions, you have borders and laws but in cyberspace we don't have the monopoly and

jurisdiction is a problem. then he says when that's a problem what a problem what do you do? you go when you actually fight with other states and that is how you prosecute your rights when you don't have jurisdiction on claims that you need. okay you go to your army, you go to your navy and they help you enforce your rights. but this is a problem in its complete and secure and it's not a good bet so he says and what you need to do is create a free federation of the states for defensive community much like nato. so we have nato. i called call this social contract nato style. if you know any the people in the back that i photoshop faces and kudos to you and you can point at who hobbes is and you know where he is sitting even more kudos to you but what i really think is happening here is that we need our friends. we need our allies. we need to get together and have cooperation. that is what we learned from kant. we need trust. we need allies to trust but when this happens only have these

defense communities and we have allies and trust we can't do certain things he says. in fact we can't spy on her allies. he makes a really big claim about not involving what he calls dishonorable stratagems and to be involved in spying is to be engaging in a dishonorable stratagems. so in all of these reports to come out over and over again about spying and different types of things breaking down trust. we have all of the different leaders of states saying they are bridging bonds of trust necessary for allies. this is huge when we think about cybersecurity because the claims of justice that we wanted for starbright that we want to protect require our allies and it requires that we trust our allies. now we are not doing so hot with that.

google's executive chairman eric schmidt famously said we are going to break the internet so we have to really bring it back down to building trust. we can't be what kant would call an unjust enemy. that is someone who is engaging in these dishonorable stratagems and threatening the bonds, the very fragile bonds between allies in peace. to be an unjust enemy, to swear off to fight against another unjust enemy is ultimately to go back to a state of war what he would call a state of war. this is huge because all of the international agreements we have all of the international law and cooperation we have we don't involve ourselves in interstate war is based on basic rules of trust that if we keep breaking those bonds of trust we will

undo this great thing that we have created this great thing the internet that has given us communication shopping. he was actually a big fan of shopping and commerce and that would create bonds of trust. he said if you go this is somebody else's shores you are going to learn about them and learn about their culture so we need to continue to engage in the sharing of ideas and commerce and we have to stop. he would say we have to stop thinking about short-term goals of militarizing cyberspace spying on her enemies and breaking down the very basic relationships that we have to enforce our rights claims. so the way i like to think about this is if you were to quote mayo from the matrix come i can't tell you the teacher but i can tell you -- the future. we need to think back to what

kant tells us about the claims of justice, how we enforce our rights, how we utilize our allies, how we make laws and stop engaging in what he would call a dishonorable stratagems. thank you very much. [applause] >> the senate remains in recess subject to the call of the chair this evening. both the senate and the house in fact are in recess tonight as congressional leaders continue to try to find a way forward to fund the department of homeland security. that department will run out of money otherwise tonight at midnight. the house earlier this evening voted down an attempt to extend funding by three weeks temporary spending bill acr that would have funded dhs until march 19 that's going down in defeat so the house then went into recess shortly thereafter. they are still waiting to hear

how things may play out tonight and possibly over the weekend in congress. in the senate this morning members passed a bill that would fund the department of homeland security through the end of fiscal year september 30. that version of the bill does not include funding for the present immigration executive order. the senate also blocked the bill today that would have defunded those immigration orders, 60 yes votes were needed to move ahead with that bill. again the senate in recess. our live coverage will continue when the senate reconvenes. while we wait though other programs from this week. on wednesday the supreme court heard oral arguments in the case testing whether clothing retailer abercrombie fitch discriminates against the muslim woman when they declined to hire her will because you wear a headscarf that went against the company's headscarf. the court's decision could set a standard when employers are expected to offer accommodation

rules if it's the responsibility of the employee or prospective employees to inform the business of the conflict. now that oral argument. >> in case 1486 the equal employment opportunity commission versus abercrombie and fitch stores. mr. gershengorn. >> mr. chief justice may place a corporate the tenth circuit imposed to requirements on religious accommodation claims that limited respondent refusal to accommodate her. the applicant herself verbally requested the accommodations and second employer no rather than just correctly understand the need for an accommodation. neither requirement -- >> what is the difference between knowing and correctly understanding? >> your honor that testimony the tenth circuit perceive the difference. the testimony was that ms. cook a sound she needed to wear a

headscarf and a headscarf signify that it was a religious headscarf and she figured it was a religious headscarf but the tenth circuit said that wasn't sufficient. what was needed was actual knowledge. our position is when you assume when it signifies to you that a religious accommodation that is sufficient notice for an employer to be on notice. >> does that subject or is it relevant meaning the issue is whether they fail to hire her because of the religious practice whether the person thinks it is the issue. that is why -- >> that is what makes this a particularly straightforward case. what the employer did here was out upon the assumption that ms. elauf needed to wear the

headscarf and it didn't have sufficient knowledge or certainty to have initiated the accommodation process that congress wanted in section 2000e. >> i think there is substantial argument that the employee does not dimension this first but why did we import the term understand instead of no? >> treatment case the whole idea is it was because of religion. why are you making is so confusing? >> your honor with respect it's the tenth circuit that is confusing. what the tenth circuit has done is said -- >> your statement is understands to stay away from a word. i can understand your answer. >> the answer your honor is we think there is sufficient knowledge notice when somebody understands that when somebody

assumes their practices religious and acts upon it that is sufficient but what the tenth circuit said that is not sufficient and what is needed is something more approaching certainty. >> that does raise the question if yours is less than certainty how much less than certainty is it? suppose i'm an employer and i say you know i don't honestly know i think. it's two out of three. is that sufficient? >> so your honor if it can explain as these cases come up the best way to answer, it would be the best that answer your question. in a situation like this in which it's an applicant applying for a position in the employer suspects that there is a religious problem religious conflict. the employer has two options. he can assume there is no conflict in which case they make the hiring decision on the merits. that case ms. elauf would have been hired.

alternatively if the employer feels there's enough concern about how ms. elauf would be able to perform they can start a dialogue. what they can do is what they did here in the center of stereotype there was going to be a need for accommodation and then say having assume that i don't have any obligation to actually try to accommodate. >> go ahead. >> is that even if it's under 50%? in other words they employer says i really don't know but i think there's a 50/50 chance or even a 40% chance that this person has a religious, but this practice is religious and i don't really feel like getting into this accommodation stuff so i'm not going to hire this person. >> i think your honor, that's what they cannot do. >> what is the percentage chance?

it could be less than certain or a lot less uncertain as long as the employer says there's some chance and i'm not going to hire or promote or fire because of that chance. >> your honor i would like to try to separate out two different situations that could arise number one of which we think arises commonly. one is that the employer has a work world. it is concerned that the applicant before them won't be able to comply in the future after being hired because they perceive that the person is religious. i think the dilemma your honor is posing is a false one there. if they employer really has a very small understanding or thinks it's unlikely the employee the right thing for the employer to do is to assume there isn't a religious problem to not engage in stereotyping and assume the person comply as they would with somebody who was

wearing a headscarf for something else. >> i'm not sure i understand why you are fighting justice kagan's question. isn't the issue the reason the act, they refuse to hire someone because they had a 1% believe that they had a religious belief that they wouldn't accommodate? >> your honor i don't intend to fight justice kagan's hypothetical. the fact of this case is quite easy but the reason i'm trying to separate the two is because i think the situation here and i will get to why the hard case implied i am fighting justice kagan's hypothetical. >> you are confusing me enormously. will you tell us what it is you want? you said understands and that doesn't do anything for me.

understands, nose, believes, suspects? what other verbs do you need? >> the test of the courts of appeals have adopted for more than two decades which is a test we asked this court to adopt is that the employer needs sufficient information for any source about the employee about the applicant's religious needs to permit the employer to understand the existence -- >> that is to test the courts of appeals has -- but that doesn't make sense to me. >> the reason i think it makes sense in this case because it that sufficient knowledge for you to act upon it remember the critical point here for us is if the employer had not assumed that this was religious had not believed that they would have hired her. the default rule for i'm not sure it's higher. >> mr. gershengorn didn't this person, the first one who was

responsible for hiring, didn't she say to the district manager i think she is wearing this headscarf for religious reasons and that's why i am checking it out with you. the answer she got back was that doesn't matter whether it's religious reasons. we don't accommodate people who wear headscarves. >> that's right your honor. >> so it seems the district manager his point of view is headscarves are out. this particular woman was wearing a headscarf but it doesn't matter for what reason we don't accommodate headscarves. >> that is exactly what congress said when it enacted these -- >> there is no such rule. and the employer can have a rule

we don't allow headscarves and until someone applies for a job to do for a religious reason wants to wear a headscarf and the employer knows it's for religious reason or suspects or believes or understands whatever word you want to use there is no violation of the law. you can have that rule. we do not allow our employees to wear headscarves. nothing wrong with that rule. >> that's correct your honor. >> the fact that the supervisor said that doesn't prove a violation by the employer. >> i don't agree with that your honor. once it's clear that the employee needs and accommodation of that world that's exactly what title vii requires. it was a neutral rule that you had to work on the sabbath. >> the supervisor did not have that knowledge. >> that is not correct.

i took from justice ginsburg's question that what we believe to be the case that cook conveyed to her supervisor johnson that it was for religious reason. there's a disputed testimony about this but what cook said is that summary justice has been granted against us. cooks that i told johnson was for religious reasons and johnson said if we allow this then someone will paint themselves green and call it a religion and we can't allow it. the court decides the question on the assumption that the decision-makers knew. >> we leave this recorded event as the senate has come back in following recess. live coverage. internal revenue code to ensure emergency taken as employees under the patient and affordable care act. mr. mcconnell: i have an amendment desk and ask its immediate, the g consideration. the presiding officer: the clerk will report. the clerk: the senator from kentucky mr. mcconnell

proposes amendment number 268. mr. mcconnell: i ask unanimous consent the pending amendment be agreed to, the bill as amended be read a third time and the senate vote on message of the bill and the motions to reconsider be considered made and laid upon the table without any intervening action or debate. the presiding officer: is there objection? without objection, so ordered. mr. mcconnell: i ask that the chair --. the presiding officer: the question is on passage of the bill as amended. all in favor say aye. opposed, no. the ayes appear to have it. the ayes do have it. the bill as amended is passed. mr. mcconnell: i ask that the chair lay before the senate the house message accompanying h.r. 240. the presiding officer: the chair lays before the senate the following message. the clerk: resolves that the house disagree to the amendment of the senate to the bill h.r. 240 an act making appropriations for the

department of homeland security and so forth and for other purposes and ask a conference with the senate on the disagreeing votes of the two houses thereon. mr. mcconnell: i move to insist on the senate amendment agree to the request for the house for a conference and authorize the presiding officer to appoint conferees. the presiding officer: the motion is pending and debatable. mr. mcconnell: i thank all senators for working together toepiece this one week funding extension for the department of homeland security. senators should expect the next vote at 5:30 p.m. on monday which will be a cloture on the motion to agree to the house request to go to a conference on the bill. mr. reid: will madam president? the presiding officer: the democratic leader. mr. reid: progress has been made all during the day. i appreciate pretty much the cooperation of everyone involved. i'm confident the house will pass a seven-day c.r. tonight and there will be full funding

for the department of homeland security. mr. mcconnell: i ask unanimous consent the senate freed the immediate consideration of s. res. 92 submitted earlier today. the presiding officer: the clerk will report. the clerk: senate resolution 92 designating february 28, 2015 as rare disease day. the presiding officer: is there an objection to proceeding to the measure? without objection. mr. mcconnell: i further ask that the resolution be agreed to, the preamble be agreed to, and the motions to reconsider be made and laid on the table with no intervening action or debate. the presiding officer: without objection. mr. mcconnell: madam president, i ask unanimous consent the senate the appointments at the desk appear separately in the record as if made by the chair. the presiding officer: without objection. mr. mcconnell: i ask unanimous consent that during this adjournment of the senate the majority leader and the junior senator from west virginia be authorized to sign duly enrolled bills or joint resolutions. the presiding officer: without objection. mr. mcconnell: i ask unanimous consent when the senate

completes its business tonight it adjourn until 2:00 p.m. monday march 2, following the prayer and pledge, the journal be approved, the morning business deemed expired the journal of proceedings be approved to date, the time for the two leaders reserved for their use later in the day following leader remarks the the senate then resume consideration of house message to accompany h.r. 240. the presiding officer: without objection. mr. mcconnell: if there's no further business to come before the senate i ask it stand adjourned under the previous order. the presiding officer: the senate stands adjourned until 2:00 p.m. on

that appears to be the plan. the senate moving first approving a one-week extension of funding for the department of homeland security. the senate earlier today had passed a bill that funded the department of homeland security through the end of the fiscal year. that bill did not include funding for the presidents immigration executive orders. the senate also earlier today blocked a bill that would have defunded those immigration orders, 60 yes votes were needed to move ahead with that bill. again tonight the senate passing a cr continuing resolution one-week extension of funding for the department of homeland security. now we return to the oral arguments that we were listening to in the abercrombie fitch case before the supreme court.

>> can you comply with that? >> absolutely your honor. reasons are no reasons it doesn't really matter why. >> there are two options. one is the one i gave to the chief justice which is you can assume the person doesn't work for religious reasons and they hired them or if you are concerned about it you can ask a specific question. the eeoc has made clear. >> the question is supposed to be why are you wearing a beard to? >> the questions we have a work world that prohibits facial hair on the floor. >> that doesn't cover anything immediately apparent. you can have a code of conduct that presumably would go through several pages. here are all things are required, any problem with any of them? >> your honor i actually think their employer is at no risk of liability. if he asks no questions but makes no questions and

stereotypes and that's why i don't think your honors hypothesizing turns out to be the practice what is going on is the case is that the eeoc brings that we seen these cases is you are talking about he must wear pants at work and the employer has a religious objection that women should wear skirts. you are talking about the no longer policy and talking about groom and garb and the concern is we be able to combine the future? the employer can avoid the stereotype however if the employer which is what the court said is through bilateral dialogue is what title vii is to accomplish. picking up on justice sotomayor's point you could raise the policy and this is not a crazy idea. >> he can ask can you do it? is that the only religious

preference that has to be honored? i can but really i would like not to worry religious reason. i guess i could take off the headscarf or would not but it would be very inappropriate religiously uncomfortable. the only accommodation that has to be made is an accommodation for somebody absolutely for religious reason cannot do so? >> no your honor. >> you cannot ask the question you are telling them to ask. can you do it? yes, i guess i could. >> that's the exact dialogue that is supposed to happen. that is the bilateral dialogue. what congress wanted past the accommodation doctrine is precisely for the employer.

>> so she says yes i could and later says i could but buoy is really uncomfortable for me to do that for religious reasons would she have a lawsuit? >> if she could she was hired and actually now it's it's quite uncomfortable that's a request for accommodation and she and the employer need to go into a discussion just like you would if they said i need this time off to attend a religious conversion which was in heller. >> how does the employers say we have a policy of no beards whatever do you have a problem with that? why does it have to be phrase could you do it? just they do have the problem with that and are you willing to do it? >> i think what title vii is about and what the court recognizes is the actual accommodation back and forth is a flexible process designed to

be collaborative. so there is no fixed rules you have to phrase it this way or phrase it that way. the point is to initiate a dialogue and i think had that happened here than we would be talking about a different point in the process about whether there was a reasonable accommodation and whether could be done without undue hardship. that dialogue never happened here and that is the problem with the cases we see it. >> the respondents said you switch series midstream. you started out with the refusal to accommodate and then you abandoned it. >> that is not correct justice ginsburg. from the very beginning our theory has been that the respondent violated title vii by refusing to accommodate ms. elauf. that was the theory presented in the complaint that we got summary damages on. it's the theory we have

proceeded on all of our cases here. there has been no switch. the phrase appears 14 times. >> that's disparate treatment? >> if i could avoid and explain our position on disparate treatment justice kennedy. the phrase used in the brief was a failure to accommodate is the kind of disparate treatment that title vii was designed to prevent. we think that is correct and accurate. what congress meant to do was put people who needed an accommodation like ms. elauf a headscarf accommodation on the same footing as people who do not need to wear headgear. that is the sense in which its disparate treatment however we recognize the lower courts have used disparate treatment at another way which is to say there's a disparate treatment way and to highlight the difference difference disparate

treatment would be you allow all have to not religious hats. that's disparate treatment. this is you don't allow any hats but you want to wear a religious hat. that would be failure to accommodate. we did not at any point abandon or change your theory from the failure to accommodate. what the other side has done is assert that not only we did that we did it for ms. elauf because we wish to avoid a 1981 question which no court has adopted their theory and at no point have ever raced. even though 1981a was the only theory on which we could get damages in the district court. we had a damages trial in 1981 and it was the only source of damages. they never raced pretrial proceedings. the district court's pretrial order listed 1981a. >> i'm sorry again i'm a little bit confused. i didn't know i read your

complaint and says the respondent refused to hire ms. elauf because she wears a headscarf and failed to accommodate her religious belief by making an exception to the policy. i looked at the jury charge and it seems like the two are always -- the failure to hire was because they refuse to accommodate her. >> that is correct your honor. so the idea that 1981a magically became a part of this case is just not credible. that is then the theory. that is how the damages were done. they never raced it on appeal. >> suppose they had. your argument is that damages -- >> your honor no court has addressed that but our position position is and this is how the courts have uniformly applied it that this intentional

discrimination although it's not a question put before this court. the reason for that is 1881a distinguishes between i'm sorry your honor. it's in the red brief on page 1a 1a. it distinguishes between unlawful and intentional determination not employment practices unlawful because of its disparate impact. the failure to accommodate is not a disparate impact claim for the reason justice sotomayor has said. it's the intentional refusal to hire because of religious practice that you could reasonably accommodate. this is not as the amicus brief suggested a disparate impact claim. >> i'm sorry i don't know why you just don't concede it's a form of disparate treatment. know you to accommodate is a form of disparate treatment.

>> i think it is a former disparate treatment. i just want to distinguish the different theories because under the disparate treatment approach as the lower courts have used it you would have to show it's because of the religious nature of the practice. for example again i allow hats for everyone but not if you have a religious hat. that would be as the lower courts call it conventional disparate treatment and if i could -- the balance of my time. >> mr. dvoretzky. >> may it please the court. the premise of the argument today as i understand it is abercrombie acted because of the religious basis for ms. elauf's headscarf. it is not correct is a factual assumption.

any time an employer suspects or possible conflict or correctly understands such conflict at that point it's that point it some notice it must offer a religious accommodation so if you imagine a situation which is not at all -- >> you are not offering a religious accommodation. you follow the statute. you only have to accommodate if it's not a burden. >> that's true. they have the undue burden offense but absent undue burden they must accommodate and apart from a digital policy based on the mere suspicion. >> no. go back to their position. it's very simple because you are mischaracterizing it. their position as is if you believe that someone a lot of adjectives that someone believed a religious accommodation and won't comply with your policy

just ask them. just the way justice alito said. you know we don't permit facial hair on the floor. we have a problem with that. >> justice sotomayor as an initial matter their theory in their brief does not depend on any sort of assumption about whether the applicant would later be able to apply with the dash comply with the work world. under the theory expressed in their brief even if an employer like abercrombie had a policy in which -- you are being assisted the interview based on your compliance with our dress. >> do you think the employee has to say i'm just the way i am for religious reasons? >> not necessarily however the employer's knowledge hath stewed be traced to the employee in some way.

>> lets say four people show up for a job interview at abercrombie and this is going to sound like a joke but it's not. the first is the seikh man wearing a turbine and the second is an acetic man wearing a hat and a third is a muslim woman wearing a and a fourth is a catholic nun and a habit. you think the employer has to those people have to say we just want to tell you we are just this way for a religious reason. we are not just trying to make a fashion statement. >> first of all one aspect of your hypothetical is not a joke and that as many of these interviews at abercrombie are -- group interviews where there are multiple applicants at a time. the reality is it's a lot more difficult than the government imagines to have these individual like dialogs but going to your point about the sorts of religious outfits one

can certainly imagine cases in which it is more obvious than others that a particular garb is likely worn for religious purposes. however i would direct the court if i could to join appendix 130 and 131 which contain pictures of the sort of headscarf that ms. elauf was wearing in this case. those sorts of situations where it's far more ambiguous whether an outward symbol is religious in nature or not -- >> i want to know the answer to the question and what the employee has to say i'm wearing this for religious reason or you are willing to admit there are some circumstances in which the employer is charged with that knowledge based upon what the employer -- >> certainly there are cases more likely than others but the question before the court is to devise a rule that's going to apply across-the-board.

>> i thought the question was the tenth circuit had said employer unless you know from the woman who is applying, the applicant unless you receive direct explicit notice what she wants to wear is based on religion unless you receive direct explicit notice from her you are home free, do what you want. in your question presented they say in the last few words in describing it we think that's wrong. i agree that we have to say whether that's wrong and if it is wrong it would be helpful to say what they have to do. so the psg says it is. if the employer correctly infers, correctly understands and i would add or correctly believes the practice of

religious accommodation is necessary, that's it. don't have to accommodate them as he is one of the excuses under the statute. what's wrong with that? >> justice breyer i think what you just described as a rule for all cases and it's one that is entirely an administer vote for courts and lawyers and applicants alike. >> is it on administer both to say if the employer believes thanks this woman is religious in nature and accommodation and he is right unless you have an excuse. >> your honor that is an administer a boat because the eoc does not explain what level of certainty is required for believe. >> this is correct you have to prove he has a believe. probably in 250000 federal cases a year those 80,000 to go to trial prove that someone has

to believe is probably an issue in 90% of them. i am making up that number but nonetheless i don't think it's uncommon in the law that you have to prove it so they say the standard believe is like in any other case. >> you are dealing with something that is a religious belief which is inherently personal to the individual and to charge employers with title vii liability and require them to come to an understanding of whether a practice is religious or not. >> mr. dvoretzky suppose an employer does not want to hire a jewish person and someone walks in and his name is noaa goldberg and he looks kind of jewish and he doesn't know he is jewish and mr. goldberg doesn't say anything about being jewish but the employer operates on an assumption that he is jewish so

he does not get the job. is that a violation? >> that is the disparate treatment violation of 27. >> that has got to be against the law. it doesn't matter if the employer knows it to a certain date. >> because in that situation what is relevant is the employer's intent. if the employer intends to discriminate on the basis of religion than that's a title vii violation. what's going on here however is the employer seeks to apply a religion neutral dress code. religion according to johnson. >> title vii you provided all of the title vii discrimination but it makes a religious practice a refusal to accommodate a religious practice is itself a violation of title vii. and that was done deliberately wasn't not so religious

practices would have to be accommodated. >> yes your honor two points in response to that by me. one we are not contending religious practices don't have to be accommodated. what we are contending as an initial matter is the employer did not intentionally discriminate on the basis of a religious practice by enforcing a religion neutral dress code. >> the thing about my question was that what the statute does is to say that if you are in fact wearing a headscarf for religious reasons that your neutral policy doesn't matter. it only matters if there is an undue burden and you can't have an accommodation but except for that it doesn't really matter. you just have to hire me even if i'm wearing a headscarf. so the fact that you don't know that i'm wearing a headscarf for religious reasons and if you only assume that because most people do wear headscarves for religious reasons they should make any more difference than the hypothetical that i gave.

>> your honor, on that logic it also would make no difference at the employer had absolutely no idea that the headscarf was worn for religious reasons because it would still be a religious headscarf and a religious practice. not even the eeoc is claiming there's a duty to accommodate in that situation so the question before the court is that what level of knowledge does the employer have to have before it's triggered? for 40 years the eeoc's guidance is put the burden to initiate the conversation on the employee because only the employee knows. >> here the employee had no reason to think there was anything offensive about her dress. how can she say by the way i have a reason for wearing this headscarf when everything from all appearances the employer doesn't care. the employer has not given notice of the policy so how was

she supposed to the question as far as all appearances go it's fine. she is wearing a headscarf. there is no look policy that the employee knows. >> justice ginsburg by respectfully disagree of that characterization that when i'm here. ms. elauf knew enough about abercrombie to understand that it had a dress code. she knew enough about abercrombie to ask in advance. >> did she testified there was a dress code? i was not aware that. >> she testified she knew she would have to wear abercrombie style clothing. she knew abercrombie did not sell headscarves. >> she came in and abercrombie type shirt. >> she knew that abercrombie did not sell headscarves. >> she has a friend who worked for abercrombie whether the

headscarf was a problem and a friend said no of it's not black it should be okay in the four manager said it was okay to wear scarves. so why would she suspect that if she is qualified and has the personality they are looking for and is dressed appropriately that this company would fail to hire her because they refuse to accommodate her religious belief? >> justice justice sotomayor she asked a friend who in turn asked another abercrombie employee who is not involved in the hiring process. >> i think it was a store manager. >> the store manager was not involved in the hiring process. she had an opportunity before ms. cook interviewed her to ask any questions after ms. cook described a look policy. >> she did not mention the headscarf. >> in addition to these group

interviews they are scripted interviews. >> show me where in the scripts because i remember reading this and she in fact said we don't discuss the look policy in the interview. >> if you look at joint appendix 33 and joint appendix 100 to 101 that is cook's testimony that she read a summary of the look policy and gave ms. elauf the opportunity to ask questions. >> but there was no mention of the headscarf. >> you did not specifically mention the headscarf however described the policy in general. ms. elauf knew before was a matter of commonsense that abercrombie requires their employees to wear clothing that looks like abercrombie styles. >> it looks someone comes in for an interview in this person has no look. if you wanted to draw the person that has the look, this is a person has to look. just like this, someone preppy

or someone they came off the beach in california. only one problem, the person is wearing a black blouse which is against the abercrombie rules. would abercrombie not hire that person on the assumption this person likes black so much this person is going to wear black every single day? >> i don't think abercrombie needs to make that assumption about what the person will do later in order to make a judgment based on a persons appearance at the interview. if i walked into an abercrombie interview wearing a suit presumably abercrombie can tell me when you come to work please don't wear a suit. please wear clothing but it would be equally rational for abercrombie to say if this person is coming in wearing a suit that is not compatible with our style and likewise for the headscarf. johnson's testimony which the oseetah and challenges he would have taken the same action from somebody who came into the interview wearing a headscarf a baseball cap, a helmet or

another religious symbol. >> specifically somebody comes in applies for a job and there are no questions asked on the policy. >> that is right and what that shows is religion is not the basis for the action here. rather abercrombie at most was completely indifferent. >> that doesn't work in a case like this. you have an obligation to accommodate people with particular religious practice or beliefs. to say we would have treated someone with a baseball cap the same way doesn't seem to be responsive. >> for purposes of an intentional discrimination claim it does matter that they would treat everyone the same and that's the theory they are pursuing. >> as i understand it is intentional discrimination because we failed to accommodate accommodate. >> i would submit that is incomprehensible understanding of what intentional discrimination means.

>> i don't know how you get into all that. they seems to be a minutia. what's wrong with saying he correctly believes that she is religious and needs an accommodation. fine, that's the end of it. it's in the statute and it will be excused. it can arise in a thousand contacts. >> if you correctly believe that they drug was being being sold out white powder was heroin to the manager whom you are trying to fire did he correctly believe or didn't pay enough for college graduates did he correctly believe that this applicant graduated from princeton? did he correctly believe that he had authority under the delegation of agency to sign the check? there are thousands of things. why is it our job to say what the right way of proving a

correct belief is? you don't have to formulate your correct beliefs just because she told you. you could argue that one. that's the only way to prove that i'm open to that argument and i'd like to hear. once we are beyond that if i'm right that isn't the only way we can prove that correctly. >> your honor in this particular context having a standard believe for suspecting it possible -- possible conflict -- >> i am with you with suspect. i am with you only wear it correctly believes or understand or no. those three things are good enough for me. i have repeated this three times that i want to hear the answer why they are not good enough. >> the reason justice breyer the reason they are not good enough

is there is no way the employer can no about a religious practice unless that information is traceable to the employee and having that kind of a correct belief standard will inevitably lead employers to stereotype because a factfinder might later find -- >> isn't that what ms. cook said she didn't? she said she saw her and her scarf and she assumed that it was born because of her religious beliefs so she acted on the stereotype. if you were a black scarf is because of her religious belief. >> your honor i don't believe she acted on that stereotype. i believe that johnson instructed her not to hire ms. elauf because she was not compliant with the look policy. >> he hired her because under the look policy he believes they

could not accommodate their religious belief. or that religious practice. >> i think the reason he didn't hire her joint appendix 134 is she simply was not compliant with the look policy. >> now you have me interested in this. when you say traceable to the woman -- it's pretty hard to think of the case where would it be. i guess i can imagine a case where you found out about this woman from an fbi agent who is making it up. that seems very unlikely. >> the case they give an example his employer learned from applicants reference. >> and the applicants reference didn't know the applicant's? >> the applicants reference did know the employee.

>> i'm still very confused. you don't think there could ever be discrimination based on general neutral policy because what does it matter if she told him that this was because of her religious belief? unit if he is only firing her not firing her because of the look policy than he hasn't discriminated. >> no your honor if she had told them this is for religious belief and i need an accommodation from the look policy at that point in the statute there would be a duty to accommodate but the question here is -- >> i am so totally confused. so he hears it from ms. cook and that's not enough. >> that's right because ms. cook testified that she did not know that ms. elauf war that scarf for religious reasons. we want to avoid is the rule that lead employers in order to avoid liability to start

stereotyping about whether they think or suspect. >> all they have to do is say this is what our look policy is. do you have any problem with it as something we were looking at a wild back. they don't have to prove anything about religion. he said i would do the same thing to a man who came in with the yarmulke. a person that came in with the yarmulke got the same treatment so ms. cook i would want to hire you but i can't. that was the answer that he gave so there is no difference between a headscarf or yarmulke for a turbine in mr. johnson's view. >> that's right and to answer question about why the employer can't disclose a policy that isn't a solution because that is asking employers to treat

applicants differently based on stereotypes or assumptions about whether something is likely a religious practice. >> of it's going to be a requirement for the job doesn't the employer have an obligation to tell the employee with the job requirements are? >> title vii is not a civil servant statute that requires applicants or employees who violate workplace rules to be given a chance to explain themselves before adverse action is taken. >> this is what i don't understand the perspective this particular case. as i understand it abercrombie does not have a policy that the interviewee must comply with the policies. is that correct? >> the look policy policy itself does not require the interview. >> they would be no reason for not hiring the individual involved here unless you assumed she was going to wear scarf

everyday. just because she were a headscarf on that one day doesn't mean she necessarily was going to wear it everyday. maybe she might and maybe she's just having a bad hair day so she comes in with a headscarf but she doesn't have a religious reason for doing it would you reject or for that? >> no in the reason she was rejected was because you assumed she was going to do this everyday and the only reason she would do it every day is because she had a religious reason. justice alito alito that is not the nike eocs. this case and if it had been it would have been ways they could have tried to prove that. they could've questioned johnson specifically about that. what would he have done if someone would have come in wearing a ball cap? they could've done comparative comparative -- so the eocs's berry which had every opportunity to prove has not been that johnson -- >> title vii does not require

accommodating baseball caps but it does require accommodating religious practices. so the employer as i said before is not discriminating on the basis of religion but if there is a religious practice i must accommodate you. that is a discrete requirements. >> the premise of justice alito's question as i understood it is abercrombie only did not hire this person because the headscarf was religious. what i'm suggesting is abercrombie might well not have hired anybody who walked in and any headcover so if the eeoc wanted to prove the assumptions about religion -- >> they could say they don't require anybody at the interview stage. >> on its face to look policy itself does not require that the johnson the decision decision-maker here in effect was judging people. >> you are about to tell us what the eeoc's. the case was. i was eager to hear that.

can you tell us? what their theory of the case was. ..

>> >> and what might be thought of as an awkward conversation. people disagree when people can ask those questions in a way that is inappropriate at all but we should deconstructs there is no possibility of that

conversation taking place but there is a role where abercrombie's -- abercrombie says glenn never had that conversation because we cut them out to make sure they never become employees. between those two options to make sure that nobody ever gets the job it to have the awkward conversation which statute is the worst problem? limit the problem is in the awkward conversation but they would lead employers to treat people different. >> what requires them? >> but the title seven requires that only after the

employee places religion on the table they do not what employers to make those judgments before the employee raises the issue and the concern raised here that we will have africans who were completely in the dark about work policies. >> i think i have your argument that it may sound odd for special rules of for administrative reasons we have to have it there are millions of people who are practicing one religion or another you can get a clue from their name or whenever. and whenever we have such a person applying she does not say anything and if we don't we will get sued and we don't want all those lawsuits so is it that big of a burden to once the accommodation then tell us. we have an administrative rule without that tell us we

will be in a rat nests to get suits left right and center. >> even after that question knu comply that treats applicants differently civic that is not the end of the world you would say we have thousands of managers and goodness knows they will get resentful. i just want to be sure i have the argument. >> that is the essence but part of the reason is under the aegis the zero regulations if the employer asks the neutral sounding question then chooses not to hire for a reasonably the unrelated they will in for. >> was an unusual case because it is very rare you have an interview were like ms. cook who is honest the only reason there was the

suit is because she told someone else. but she was not about to sue until she heard the information people don't preserve blood dash presume they're not hired because of a religious practice but if that complex with the religious practice and the person knows the where fiat because they might get sued. >> i think many if not all title seven cases originate without any sort of admission and the rule that places the burden is one that undermines title seven. >> you have five minutes left. >> i would like to make two quick factual points that i took to be some confusion there was discussion if you need to comply with the

policy i appoint the court to with the district court says the policy applies to all store employees but africans are not required to be in compliance at that time there was a question if they knew or did not know about the headscarf. but they said she did not know. it is undisputed that cook it did not tell her they would not permit her to wear head scarves. should the court wish to look at it is exhibit four and i will caution it is not in the summary judgment record but is it that damages trial but is consistent with the testimony it does not mention head scarves. >> if they're worried of the

administrative arguments. >> but that is in a couple of ways that the suggestion there are practical problems has been the rule for two decades. everybody applies the same test but it is the tenth circuit that has a two requirements but for the reasons that you talked about my first time's up their the employer can structure the interview to make sure the critical rules are followed and if it wants can make no assumptions about religion. if i could pick up by your point justice, we think is important precisely it is unusual that the applicants found out why she was not hired. that is strange. most of the time the person never finds out that they assumed accommodation would

be needed and never told. >> with a loss to them they find out. >> they certainly could. >> i am not sure it does happen often but this makes the important case because is africans are in a position to go back to understand. africans are as serious advantage. and in this case it is undisputed she did not. the background will is what makes this case strong is this is the assumption that shows the accommodation of the work rule. >> thank you counsel the case is submitted.

mr. mcconnell: i ask unanimous consent the senate proceed to cons >> with unanimous consent for consideration h.r. 33 received from the house. >> is there an objection? the clerk will report. >> in act to amend the internal revenue code of 1986 to make sure emergency services volunteers are not employees under the sheer irresponsibility requirements with the affordable care act.

>> i have an amendment at the desk. >> the clerk will report a. >> amendment to hundred 68. >> ask unanimous consent the amendment be agreed to and read the third time and the senate passage of the votes and it is on the table without any intervening debate. >> is there objection? >> without objection and so ordered. the question is on the passage of the bill as amended. all in favor? oppose? the ayes have it. it is amended as past. >> with the following

message the house agree to the amendment of the senate h.r. 2420 with appropriations for the department of homeland security and so forth and other purposes ask that conference with the senate with both houses. >> i've moved to agree to the request to authorize the presiding officer this minute the motion is pending. i think the senators for working together to fund this bill from home in security we should expect the next 05:30 p.m. on monday that is a cloture vote on the motion to agree to the house request to go to a conference on the bill. >> the democratic leaders. >> i appreciate the

cooperation of everyone involved. i am confident the house will pass it to night then will be seven days within full funding of homeland security. >> madame president i ask unanimous consent house resolution 92 submitted earlier today. >> the clerk will report to make designating february february 28, 2015 as a rare disease day. >> is there an amendment? without objection. >> that the resolution be air agreed to to be laid on the table with no intervening action or debate. madam president ask unanimous consent that the record made by the chair. >> without objection. >> ask unanimous consent that the majority leader and the junior senator from west

virginia reauthorize to zero bills or joint resolutions. >> without objection. >> ask unanimous consent on the senate completes business tonight until 2:00 p.m. monday march 2nd the proceedings be approved to date following remarks with the consideration to a company h.r. 2420. of there is no further business i ask the senate adjourn under the previous order. >> the senate is injured until 2:00 p.m. on monday. -- adjourned until 2:00 p.m. on monday.

we're still waiting to see if the house will come back tonight is still in recess but members will return you can watch on our companion network. the senate returns on monday with live coverage on c-span2. water experts discuss a challenge several areas in the hearing but a house subcommittee. within a praxis to funding and regulatory compliance were some of the issues addressed during the 90 minute hearing. [inaudible conversations] i'm calling the hearing to order in recognizing with

sulfur opening statement. focusing on challenges the role water system i congratulate and think of a ranking member and the vice chairman to raise the profile before the subcommittee. according to the census bureau 27% of u.s. population lives in rural areas. it pushes for 70% and as someone who represents communities and small town of rule america i am glad we have bipartisan interest to tackle this subject. under the safe drinking water act the supply systems are subject to regulations issued by the epa. it includes monitoring and treatment to remove certain contaminants requires managerial capabilities that are developing often beyond

on this same scale as urban centers when it comes to regulatory compliance. where residents work hard to support the families and local governments earning wages below counterparts in the more urbanized area with the demands that our disproportionate sometimes it is a matter to have the ability to keep up with their red tape. while all we'll be explored the funding mechanisms the agricultural department it is not just a matter to grow more money at the problem but to assess the needs for these systems to prioritize the importance of the needs and to find out whether they're current system can be improved to remove unnecessary burdens to examine if voluntary efforts were congress cannot and those witnesses that put their lives on hold to battle the elements enjoyed

as those illiberal communities deserve every bit of technical resources as those who live in densely populated urban centers will look forward to your wisdom to understand these issues. thanks for your work on this issue and we do have an interest to address drinking water issues and i a m glad with their daring to break the ice and with that of a plate field to the vice chair for the remainder of my time. >> i appreciate you holding the hearing for rural and smaller communities site queue and many other members to represent a rural district were constituents get their drinking water from smaller cities but according to the national role water association those across united states serve a population of less than 10,000 individuals they do

an incredible job to provide constituents as clean and safe drinking water but added disadvantage because of the economies of scale and the need for more technical expertise. this is an important issue and i thank you for the opportunity to continue working on legislation that day get the help and clearwater they need welcome to my fellow mississippian and to provide insight to the subcommittee today and i yield back. >> i have a remaining minute. now recognize the member for five minutes. >> the queue to the chair for holding this important hearing on a vital topic social worker can

partnership as we address the very important phenomenon across the country we have heard the statistics of small water systems they serve fewer than 3300 customers in those numbers are just 8 percent of the population overall but the households and businesses across the country it is not the size of the water utility but delivery of safe cleaved water and an affordable place for homes and businesses that matter. i would hear from this of all systems here that they cannot pass all the cost with technical assistance and infrastructure repairs

to keep pace with drinking water regulations with ongoing rate increases. the systems are too small to cover the cost and it is long past time to provide robust financial support for utilities and in addition we should examine alternative financing mechanisms that will enable every dollar to go forward to reduce the backlog of the infrastructure projects through efficiency and water and energy. i am pleased to have the mayor here this morning to represent those utilities throughout the state. and now we will be provided

with the challenges they face each and every day to deliver clean and safe drinking water. they do a remarkable job to keep the water flowing every day water infrastructure is essential it is the only way to say yet we cannot afford to do this we cannot afford to delay these investments in the longer. public health and economic vitality all best on the foundation of the sound infrastructure. we cannot maintain global leadership to compete with the global economy with twentieth century infrastructure held together with the hope and a prayer. we have an excellent panel today they key for taking time away from your important work and thank you there key again for your expertise and dedication

fourth what you demonstrate your communities each and every day i look forward to your testimony to work with each and every one of usa before word and i am pleased to be working with the chair of the subcommittee and the vice chair and other members on this very important issue and with that i yield back. >> anybody seeks recognition? i see no one so a recognize the full committee. >> customers of all public water systems with the safe affordable drinking water but unfortunately public water systems are facing staggering infrastructure replacement cost including climate change. the resources essential to any conversation about drinking water much of the

infrastructure is well beyond its life that these replacement the projects public health and creates jobs and boost the economy. this is important in the case several systems where minor projects can be affordable and i think the chairman to call this hearing to address the challenges of the systems. in 1996 we passed amendments to the safe drinking water act that have programs meant to help small and rural water systems. with the infrastructure funding and technical assistance all are designed that they have safe and affordable drinking water. set aside for technical assistance such as a national role water association and the partnership of the systems so i'm glad they are here

today to discuss any changes to the program we will hear the need for technical assistance is available i hope my colleagues will work with us to restore that we will have sufficient funding to meet the requirements of the same mr. for the drinking waters. if you want them to provide safe affordable water we should reauthorize the whole build not just a technical assistance ps. that is less than 2 percent of the whole plot we should not be said of the bigger picture. for the disadvantaged communities to provide additional support in most funding goes out as loans to rubberize even through principal forgiveness to the small customer base it is incredibly important but unfortunately states and not

currently required to provide assistance to these disadvantaged communities that not all do. it will become scarcer in the coming years as the infrastructure need continues to grow faster than available funding but to address toxic algae i hope it will be the broader drinking water issue but now we are addressing another issue but as i said on toxic algae are responses comprehensive serving only 8 percent of the population we should do what is necessary to ensure they have saved water but also protect the other 92 percent that means we authorized to make sure fracking is done safely to address the drought and fighting against climate change i look forward to more drinking water hearings in a more bipartisan hearings on solutions. thank you, mr. chairman.

>> the gentleman yield cpac. now the chair would like to welcome the panel i will introduce you one at a time their full record would be submitted we expect those between 1045 and i think we will get through the opening statements but would that i would like to recognize mr. gomez director of national resource of the area for gao. you are recognized for five minutes. >> thank you. good morning. i am pleased to be here today to discuss the infrastructure needs. >> pull that closer. >> i am pleased to be here today to discuss the rule communities across the nation for the drinking water systems.

with the aging water infrastructure the demand of projects for communities of population of 10,000 and few were is estimated to be more than 190 billion. my statement today summarizes the reports on the role water infrastructure of will focus on two main areas. first funding for drinking water and issues affecting world community's ability to obtain funding for this type of infrastructure. first to provide funding and technical assistance to help them build drinking water to comply with federal regulations with the state revolving fund program totaling 900 million respectively that states are

required to provide 15 percent of the drinking water srfs fund. the department of agriculture rule utility service is the next largest program at 485 million fiscal year 2014 all goes to rule communities. some of the other agencies include the department of housing and urban development and the bureau of reclamation. weld we can provide funding in rural communities they have varying eligibility criteria to focus funding to specific communities on the basis of population size in economic need and geographic location. second hour previous report found rule community's ability to obtain funding for drinking water and

wastewater include financing and technical expertise and agency coordination and as others have noted these challenges. . .

culinarywhich made it more costly andtime-consuming for communities to complete several actions to improve coordination among the agencies and programs and the epa have developed a uniform preliminary template that applies to not support programs. the southern states have adopted the template for their use. the epa also began taking steps to develop guidelines to assist the states in developing uniform environmental analysis.

the drinking water needs are large and funding them will be challenging. communities face additional challenges funding their needs given the financial expertise and coordination challenges they face overall. federal agencies with states should consider how to team teams coming into efforts to a ten to technical assistancetechnical assistance and better coordinate the agency efforts. mr. chairman and that concludes my statement and i would be happy to answer any questions. i know the hudson guy. i lived live in a small technical school so that's my that's my only alma

mater. >> good morning congress man. i'm the mayor of a charming little village south of albany new york. we have a population of approximately 1500 of the best people anywhere. it's responsible for my appearance here today i got a call from the association on monday asking about my availability and i happened to be traveling back last night from a trip related to my day job. my villages very to the goal and representative of the communities that have water supplies in new york and the rest of the country according to the environmental protection agency. they served populations and all of the small communities and a

sewer water utilities have to comply with the biggest cities and the small face and we have to operate maintain and update our water infrastructure with very small budgets. my number one concern and worry is drinking water and number two is wastewater. everything else is a distant third if there is a problem with the drinking water has to be addressed immediately. middle of the night, middle of the winter every citizen and especially the most laudable depend on the safety of the water including families with infants, schools nursing homes and people with compromised systems. we can't have any contamination of drinking water. the sewer system also needs to function properly. i would say to you that this really does keep me up at night.

the congressman knows that our part of the state is buried in snow just last week the frost penetrated the ground so deeply that he experienced two raptors in the water mains that are five to 6 feet underground. this is the issue of the whale advisory where utopia released to boil water, cover cover fountains, turning his nursing homes etc.. i've called many citizens as i can buy bobo called. we excavate the ground, prepare the water line, getting the tests to the lab waiting for the results. we appreciate them helping us protect the public and operate the waste water supply in the various funding programs and the on-site technical assistance initiatives. my village relies on this

assistance. small communities support your legislation because it enhances the current drinking water state revolving fund by further targeting the most in need. we do need help everything from financing, regulations compliance and the various programs for small communities. we don't have financial professionals on staff and don't understand many of the funding processes. we currently have needs to approach the system. we need new tanks and equipment and new pumps as the facility is over 30-years-old. we need to stop rainwater from tweaking it to into the system and overtaxing the capacity. by water operators constantly explain the need for the upgrades and his concerns of possible failure however we don't have a way to finance it.

you can see in the back of my testimony we have old drinking water pipes that need updating or replacing at a substantial cost. they are still in the ground in parts of the village and we are concerned without more borderline replacement we are vulnerable to more crisis. you can see the other picture we've recently dug up that is loaded with corrosion and deposits to the point. in my remaining time i want to emphasize the assistance we received from the water association and explain why it is so helpful. the association has circuit riders on-call throughout the state that will come and assist us immediately including evenings and weekends. they are all experts in the technical side of the water operations. just a week ago he called for help for locating the water leaked from a pipe that the pipe that could have occurred over any part of

the 100 waterline. the specialized equipment that could detect noises and vibrate did it coach vibrations underground. in addition i operators received 90% of the training needed to retain their operators licenses from the water association. we depend on them just like every other small community. mr. chairman i have more to say but you've been very charitable with your time and attention and on behalf of every official we are grateful. thank you for hearing from us and i will answer any questions. >> since my district must we have communities below 2500 people thank you for the comments because hopefully they are paying attention also. the bills signaled he's been called to vote early. i think we will just break here. we as a congress i don't think are going to be in a hurry today. so we will all get back here and here the final testimony and then going to questions.

with that i will recess the hearing. [inaudible conversations] >> we will call the hearing back to work or anti-alternative mr. newman on the health of the water association you are recognized for five minutes. >> good morning mr. chairman and

members of the subcommittee thank you for the opportunity to testify here today. i have been working for were in the small and rural community water systems in the mississippi delta for nearly 20 years. i first started out as a small city water manager in my hometown of dayton mississippi which has about 1,000 homes. i then worked for the mississippi water association as a circuit rider for ten years. in this capacity i visited every one of the delta approximately 500 small communities to help them with their water and sewer problems. currently i'm working for about two dozen small delta communities assisting them with their water and sewage utilities. i'm honored to be accompanied here by the mayor of one of the small towns from mississippi. the town has a population of approximately 1,200 persons.

the mayor challenges are compounded by the fact that as a small-town mayor he has a full-time job as a truck driver and has to handle much of the city's issues on his free time. his community has little professional staff because they simply can't afford it. the wastewater system is failing because of its age and inability to meet its current treatment. the cost to update the sewer system to be compliant with approximately $2 million. the drinking water system needs an additional $1 million in upgrades. the town was recently fined by the department of environmental quality for failure to comply with the wastewater discharge permit. currently the wastewater treatment facility is actually discharging only partially treated wastewater due to failure of the current treatment. it's like thousands of other small communities in the delta and other state can take pending a grand rich infrastructure program like

the usda rule development program and they need access to someone they can trust for technical advice from on-site assistance and help with managing the funding application process. mississippi has 1234 regulated public water systems. only to serve the population over 50,000 only 59 populations over 10000 persons. more training needs to be provided to small-town mayors so that the multimillion dollar upgrades that will double certainly taxed the ratepayers of the communities can be more readily understood and communicated it to these residents who will ultimately be responsible for bearing the financial burden. recently, many of the small communities in the delta received violations for a relatively new epa regulations referring to the disinfection byproducts rule. these byproducts are the result of disinfecting the water to

make it safe to drink. if the small communities limit or reduce the disinfectant levels of the water, the list certainly comply with the regulations that water may no longer be safe to drink. once it is violated, many small communities are forced to spend limited resources to report the violations to the consumers. in the town of the population 1,900 persons per community was under the boil water order for over six months because of a broken coordinator needed to disinfect drinking water. the local schools had to buy bottled water for six months. after they called the mississippi water association circuit rider they were able to come up with a plan to pay for a new coordinator, revised revise the town's program to accurately

assess the water used by citizens and receive the payment, train the new trained the new mayor and town council to make it count and credit stable and secure emergency state revolving fund financing. in closing whenever a small community is facing a compliance issue the complication is the new epa rule, a linebreaks they can't find is causing people to lose water surface and emergency for a storm or power loss we all call the circuit riders to tell us what it means and what to do. they have developed a trust relationship with small communities in their state that know how to fix things and are willing to come to your town day, night or weekend. thank you for the opportunity to testify here today and we are available for questions. thank you. >> thank you. it's good to have you with us also. i would like to turn to bobby on

behalf of the mississippi rural water association you are recognized for five minutes. >> good morning mr. chairman. it's an honor to appear before you today. i am a certified drinking water and wastewater operator in the state of mississippi with an engineering background for mississippi state. i've been working in the waterworld for 25 years starting in my hometown in lawrence county. i still work for the water authority in additionauthority in addition to 12 other small communities in the water associations. i want to thank my congressman for his support and assistance to the over 150,000 small public water systems across the country for sponsoring the grassroots rural and small systems assistance act. representatives harper directs the u.s. environmental protection agency to prioritize the type of technical assistance that small communities find is most beneficial. the water type of on-site is

what all the small communities in mississippi and the other states rely on for operations coming emergencies, linebreaks, loss of water setting the rates and training for operator certification. i'm told the congress funds the epa internal management of budgets by hundreds of millions of dollars every year. small and rural communities want congress to know that the only benefit the get comes from the small portion of the funding that is directed to on-site technical assistance provided with equal circuit riders. what small communities do when they have a question or water issues call the local circuit rider and that they know and trust that can give them clear answers. the circuit riders often come immediately on-site to small communities and to teach them how to fix the problem. there's no one at the local level providing this a central help. after katrina, two of my small communities were devastated.

a third of approximately 2500 people were without power and water. people in communities can get by without power for a while but not without water. i called the mississippi rural water association circuit riders and they have emergency generators for me and delivered them to the communities at no charge. since the circuit riders know everybody in the state, they were able to barbara generators from northern northern community is not impacted by hurricanes and have to generators delivered to get drinking water and sanitation restored immediately. the circuit riders also had a technical know-how to fix the systems voltage and drive tobacco is needed to dig up rupture clients. all of this type of assistance as he central to restore the water supply in an emergency. i called the circuit rider to help me at the double pond association a community of about 1,000 homes to find the linebreaks causing the loss of water for many homes.

the circuit rider came with advanced radar equipment that can precisely identified the location of the break which on this day happened to be out of the woods. by finding the circuit riders congress is allowing all small and rural communities to share this technical resource no one community can afford on their own. we think it is the best use of the environmental dollars. with the federalization of operator certification of the state drinking water act of 1996 that the state will no longer associations have become the main source of training for operators and the main source of continuing education credits which are needed every year to maintain the certification. many parts of rural america have seen them move on. in my region, the industry midsouth. when this happened to raising happens the raising rates become overly burdensome. in the town in mississippi with just over 400 people we are now being told that we need to

comply with wastewater discharge permit that would cost up to $3 million. i will close with some comments on the federal water infrastructure programs and lead theleave the epa state revolving fund and the usda world development grant loan programs. we are very appreciative for the congressional funding of these initiatives and realize that funding can strengthen the nation notwithstanding the federal funding the regulatory burden continues to increase and become more complex. we emphasize the grants and funding programs low-interest loans often don't have the communities facing the most severe hardships for federal compliance leaving the funds to be used for compliance with greater ability to financing. we are very grateful for the funding assistance. it's about many rural and small communities to have excess drinking water and sanitation that would otherwise not have been able to afford without federal assistance.

we want to be partners in the effort to make it as efficient and successful as possible. thank you mr. chairman and i'm eager to answer any questions at the appropriate time. >> thank you very much. last but not least the panelist is mr. stewart the executive director of the community assistance partnership. while command you are recognized for five minutes. >> thank you chairman, ranking member and members of the committee. i think the previous witnesses and you will have all have done an excellent job of framing the issue. as someone that has worked 20 years with hundreds of communities in texas both in the rural community assistance partnership into the water association and someone is to record a program for ten years i'm here to tell you that the needs of the communities are many and the resources are limited. at the dedication and determination of small communities to provide their citizens with the best possible water is strong and undiminished. i want to -- i'm sure everyone

knows about the community assistance partnership in my testimony. i won't repeat things in my testimony. i just want to make a few points that have been touched on. one is access to capital. there's anthere is an issue in the communities accessing the resources they need in order to build the infrastructure and extend the lines. i believe mr. gomez talked about the bond market for small communities this isn't an option at all. we heard this 53,000 some of the community water systems in the country perhaps forever then have the ability to access the market. so, what they are left with is the two primary federal financing programs being the drinking water and usda rural development programs, so it's critical that those programs continue to be supported in a robust manner.

we worked a lot with the rural development and water environmental program. they are the primary lender. they have some 18,000 plus loans out with a small water system and as you probably know there's virtually nothereis virtually no default on these loans. we take these matters very seriously repaying the loans are made in the small communities. one of the things is the field staff in every state they have the ability to work with the communities. the communities know the local folks in the district and state offices. it's just a more cooperative and easier way to get the funding through the rural development. the rural development funds the water association and the technical assistance in the training and a lot of the stuff that works for me around the country work through the application process and all of the requirements that are needed in order to get a the loan from the rural development. the epa state revolving fund is also a very important part of the financing scheme for small

communities. i think all of you know that as a result of the 1996 amendments of the drinking water act the state revolving fund program was formed and it was mainly to do with compliance issues. if you look at who is out for compliance or who's on the basic compliance issues, 96% of them are from small communities. so you would think that most of the money or a big portion would go to the communities whether urban, rural, small or large but as you can look at the epa numbers perhaps 25% of the funding actually goes to the small communities in this country. you would think that a large amount of money from the program should be dedicated to the economically disadvantaged and small and rural communities. the epa does have a program as a result of the amendments that funds the technical assistance that goes above will water and

we have taken advantage of. it's not funded by the authorized level. it was authorized to 20 some years ago as a utopia to consider some additional resources for that particular program. i know one of the things you are looking at is what else can be done. what else can we do to work with small communities there's a lot of other options one of which rural water worked on which is the sharing of the services how can the small communities get together and share in operator and a manager, share purchasing. how can we look at the possibility to actually combine the systems if they are closed? one of the problems that funding agencies have is that it's easier for them to make a 10 million-dollar loan and to make ten of the 1 million-dollar loan so that hurts the communities with reduced staffing levels in the epa and there's an emphasis more for the larger loans which i think adversely affect small communities even more. so the regionalization approaches where appropriate are

important but the only way those are going to happen is if you have people like the circuit riders and technical assistance that are out working with those communities to work through those issues. one of the other things quickly because my time is running out if you talk about the tools. i would like to give credit to the epa for developing the variety of tools working with the rural development on asset management, tools to look at the sustainability for the communities and again pulls are important to be developed for use by small communities but it takes someone in the field like a little water person to bring the two is out for the communities and i also believe this could be handled in the questions i know you're interested in some of the other alternative financing programs that i would be glad to talk about that. my time is up so i appreciate the opportunity to be here with you today. >> thank you and i recognized myself for five minutes for the starting of a question and before i start i am in my 19th

year my first district was 19 counties and my second congressional district was 30 counties and now i represent 33 out of 102. so we have really been able to access and use the rural development and the rural water and it's really helped the push to regionalism and closing the gap of water or addressing the challenges to communities have because sometimes the communities are shrinking. so they are based to keep up with a capital expenses. so that is in my area it's been a very successful program and i just throw that out because we've had great people work on that and then they've done great work.

you've heard some of the witnesses claimed that the state revolving funds are being made available to provide state drinking water to the needs of the most needy communities. is there a way to measure across the country whether the drinking water revolving fund is meeting its congressional he intended purpose or were all priced stocks. >> that is a good question. what we are aware of is that the drinking water is required to provide 15% of the funds to the small communities. to the extent of the states are doing what you are asking they don't know yet. that would be a good question for them to look at. there are estimates for sample that about 38% of the drinking water have gone to small communities as of 2008 so that is the estimate that's out there to the extent that it's meeting the small community needs, we don't know that.

>> thank you. are there any reports that show how fast the drinking water funding is spent, by whom and where it goes including distribution to the needy communities. >> one of the things you're doing at the moment as we have ongoing work looking at the financial sustainability of the drinking water so we are looking at different ways in which the states are managing and we are hoping to identify the best practices the states are using. that report should be coming out this spring. >> in your testimony you state the fund needs to be better managed to meet the small system needs. can you give upgrade a little bit more on that? >> when you look at the numbers the epa has a difference between the number of loans they are making and the amount of the loans.

the amount isn't the same as the number. the whole purpose was to give the state the latitude they see fit and i think most of the members of the committee would agree because the conditions are different from state to state that i would think there is a minimum requirement if we are looking at the noncompliance rate of utilities and the problems of affordability and small customer bases that trade emphasis needs to be paid to provide more funding for the disadvantaged communities and my home state of texas has a lot of problems that california has done the same thing. each state has the difference. i think it's good and they've done a perfect job of looking at some of these issues and i would encourage them to do so. >> my last question can you just

give us briefly your success on the state revolving fund and why don't we go to mr. keegan first. >> we haven't had much success. we've had limitations due to the rich income of our community. we've been told that it's been too high and our average bill doesn't meet the minimum to qualify for the funding. we have hired and we have paid to separate consulting firms to search funds for us and both reported the same thing. >> in my experience, one of the issues has been the paperwork isn't considered to be cumbersome and the added at the district of khost in a playing

often nullifies the love interest which in turn makes it an option of last resort which i don't believe was the purpose. >> and some of my systems it depends on what area you are in a state that we were having trouble getting the timely process getting the money to drill the well that was needed and not a state revolving fund grant for the sewer project right now that we just completed so in our district and our state we have used it and it's hoped that the usda seems to be more of the grant and it helps that much more. >> my time has expired.

>> thank you for calling this hearing and for inviting the witness i appreciate you making the trip today. the drinking water systems in the district i represent and i think every district across the country are facing significant challenges as they work to ensure that everyone including people in the small and rural communities have access to state water which is why introduced to the aqua activist congress to improve all of the tools that epa has to assist the systems. i appreciate the work that my colleagues for mississippi have done on these issues and i look forward to working with him to get some of the changes into the wall. it seems every week in my district there's another water main break played treated water into the money we've invested is being wasted so it's dollars and water flowing out of the pipes. can you describe some of the issues you have had in your town with water main breaks and the obstacles