clark, who is president and ceo of the georgia chamber of commerce, again opposing this rule. i ask unanimous consent that these be entered into the record. >> without objection, so ordered. >> since i haven't started my question, please restore my time. i would appreciate that. administrator perciapese, you are one of the best i've seen of filibustering a question and not answering. it's not only to republicans but democrats also. the chairman showed you a map, the connectivity map. you made a statement that you already had control over all that property. is that correct, yes or no? >> we do not control the land. >> no, you made it clear you control the water over that -- on all that area on that map,

correct? yes or no? >> i'm not going to do that. >> but you did say that. are you expanding your authority here with this proposal? >> no. >> none whatsoever. >> no. >> why have the new rule, then? >> because the existing rule, as i mentioned, is based on flawed approaches to determining jurisdiction, is actually more broad than the supreme court has asked us to -- >> let me ask you this, then. do you believe that this rule improves the overall clarity of epa's jurisdiction or authority? yes or no? >> yes. >> you think it does. well, you're absolutely incorrect. you can see the questions we're asking here. this rule is not needed. the supreme court didn't tell you to make a new rule. it said that you could, and to me, it's expanding the authority in breach of the epa, and that's the reason there's so much discontent all across this

country, not only in my state of georgia but in every state in this country because you all are expanding your authority. you talked about if anybody wants to put a pollutant into water, they have to get a permit. the epa has recently -- fairly recently -- said that co2 is a pollutant. we're all breathing out a pollutant according to you all's determination. now, given the importance of this issue, why has epa not done more original research on this issue and looked at a number of questions such as significant nexxus? answer, please, i don't have much time. i have a number of questions. why have you not done research? >> we've looked at over a thousand peer-reviewed studies that have been done. >> you just looked at the literature, is that correct? you've not done any more research? >> our scientists compiled a synthesis report on the existing research that exists. >> but you've not done any original new research, is that

correct? yes or no? >> no. >> no, you have not. it looks like the epa has been cutting corners by not doing a new study. shouldn't epa's rule-making be based on sound science as determined independently by the agency? >> it is based on sound science. >> no, sir, it's not. in fact, you even intercepted our questions against the law and -- or as the chairman and -- i guess mr. cramer was talking about, you have gone against what should be done. why did epa not do a new study given the supreme court's rulings that previously rejected epa's reliance on bad banks and high water mark? >> i'm not aware that the supreme court rejected bed banks and high water mark. i know they rejected the swank opinion of making calls based

solely on migratory birds, which gets me back to the interstate commerce problem of existing regulation, asking field biologists and hydrologists to make a determination of what's affecting interstate commerce. we need to get away from that, the supreme court would like us to get away from that. i want to clarify for the record, mr. chairman, that chief justice roberts did suggest that the agency conduct a rule-making. >> but you all's proposed rule is so unclear that everybody, farmers, businessmen, landowners, politicians, democrats, republicans alike are requesting you all to take away this proposed rule, to abandon it, and do something else. and i request that you do the same thing. it's beyond me why you all continue to do so. you're cutting with your coal

rules. you wanted to shut down the coal industry. the president said he would bankrupt any company that puts south nicole plant. you all through the epa is doing just that. in fact, you're shutting down 15 power plants in georgia, and it's not fair to poor people and senior citizens on limited income. because as the president said, his policies are going to necessarily skyrocket the cost of energy. and that's exactly what you guys are doing at the epa, and that's unfair. unfair to poor people. it's unfair to senior citizens who have limited income, and what you're doing now is expanding the jurisdiction and scope of the corps of engineers as well as the epa. would you agree -- one final question since my time is up. would you agree that every drop of water that falls on this country is going to eventually wind up potentially in a navigable stream, yes or no?

>> that's a science of analogy. >> well, yes or no? >> yes. >> you're going to control every piece of land and every landowner. mr. chairman, i yield back. >> those are not jurisdictional. the backyard water is not jurisdictional. mr. chairman, can i please -- >> we'll come back to that. mr. brown, thank you. mr. holt. >> i think this is a very interesting hearing, mr. chairman. i think i've learned a lot about arrogance. i agree with mr. collins, and i think it's been said that it ain't bragging if you can do it, and the professor was asked if he knew the difference betweof arrogance, and i think he said he didn't care.

i think i know what you're going through out there because you were recommended and she's a lady and trying to get you to do what all of us are doing, get you to tell us the truth and do what you say you're doing. this controversial proposal raise az ls a lot of questions rules and potential on property owners. first i'd like to read a letter for the record in my district. morse county judge said morse county is against any action by the epa and the army corps of engineers that would infringe upon the sovereignty of texas to appropriately regulate water in the state of texas, unquote. she continues, if adopted, this would increase a need for burdensome and costly committee requirements and infringe on

property rights and circumvent the legislative process and the will of people to protect you. to go on, in february, this committee heard testimony from the president of the texas farm bureau expressing farmers' concern that the proposed rule would mean more permits, more permit requirements and the threat of additional litigation against farmers and ranchers. they also expressed concerns that epa almost routinely seems to ignore the comment that the panels be fairly balanced. mr. administrator, as you know, the epa administrative office is responsible for appointing members of the agency scientific advisory panel, including the science advisory board. late last year, the epa assembled a panel to review the conductivity report. we were informed of epa's expanded interpretation of its power.

your office appointed 27 experts to this panel. many of these 27 were state, local or travel regulators. how many do you think were? it's my understanding there were zero. nine highly qualified state and local experts from the north carolina division of water quality and elsewhere were nominated to serve on this panel. why did the epa not appoint any of these state and local experts? similarly, last year epa assembled a science advisory board panel to review the agency on ongoing study of hydraulic fracture. 13 qualified scientists from state and local agencies were nominated, including two top-notch toxicologists from the texas commission on environmental quality. despite their vast experience with oil and gas regulation, none of these nominees were appointed to the 39-member board, and i wonder why they weren't.

and would you explain why some area lacked local water activity, state and local officials have more expertise than the epa. would you agree that the state have decades, if not centuries, of experience in some of these areas? former chairman of the railroad commission, elizabeth ames jones, has so testified before this committee. i ask you, will you commit to appointing geographically diverse state and local experts, all epa scientific panels, in the future? and finally, sir, in view of the potential impacts and cost of the epa-proposed rules, shouldn't states have more opportunity to provide input d because they'll bear so much of the cost. epa said they consulted with states regarding a proposed rule, but in your recent testimony before the house transportation and infrastructure committee, you could not name a single state and infrastructure committee that had come out and supported the rule, and you promised to

survey the states. has that survey been conducted and what methodology is being used to conduct a survey? mr. chairman reached far bigger implications that need to be thoroughly examined, and i thank you for your leadership on this committee. i yield back the time that i'm almost out of and maybe you'll conclude this in a letter. >> thank you, mr. hall. the documents in the record so ordered. even though he's out of time, please give us a bit and we'll continue to move on. >> thank you, mr. chairman. we do have a defined process for picking members of the science advisory board. it's a public process. an advertisement goes out to get nominees. you mentioned that some of those nominees came in. they are screened by the sab staff for conflicts of interest

and ethics issues, and we do strive to have a diverse board. so i would certainly commit to looking at how we could continue to improve to do that, and it is our intent to have a diverse board. i want to absolutely agree that the states have significant and important and we need to rely on expertise in the area of hydraulic fracturing. >> for the staff sitting behind you, would you agree to send mr. hall a note with the mechanics? mr. hal because i'm doing some switching around with my own slot, mr. hollcrum, please. >> thank you, mr. chairman. i would ask that you submit for the record a letter from the illinois chamber of commerce in opposition to the rule gravely concerned that what they talk about would significantly add to the unprecedented level of uncertainty our members face

with the new rules and regulations. thank you, mr. chairman, thank you, administrator, for being here today. it is really crucial that the epa regulations are based on science, so i appreciate you being here so i can learn and trying to explain to my constituents the process you go through before drafting and finalizing new rules and regulations. my concern will deal directly with the scientific advisory board, so the first thing i ask, and i hope this will be a simple yes answer, but does the epa hold the science of its scientific advisory board in high esteem. >> extremely high esteem. >> that's good to hear, because science should always be the backbone of what you are doing at epa, something your administrator frequently cites and what we normally hear in testimony before this committee. interestingly enough, it was not in your 10-page written testimony here today. i understand that a draft rule is just that, a draft. but you have said throughout your testimony that this rule is something that is supposed to

bring clarity to the jurisdiction that the agency already has. unfortunately, as we can see from discussion today, this rule is not very clear. and my constituents have a number of questions about how it will be affecting them. in the draft rule, does epa define what a shallow subservice hyd hydrological connection is? is it something you leave to the literature or is it expressly defined in the rule? and what depth below the surface ceases to be subsurface and turned into groundwater? >> the use of shallow subsurface water, i think -- i'm going to say i think -- >> my question was, does the epa define what shallow subsurface hydrological connection is, or is that left to further examination of the literature as expressly defined in the rule? >> it's something that the science advisory board is looking at.

it's something they gave advice on in the draft statement. but i want to be really clear, groundwater is not covered by this rule. >> so this is not expressly defined in the rule. and the depth where water ceases to be shallow surface and turned into groundwater is not defined. although you're saying it is not under the rule, the fact is it's not defined of when it turns into groundwater and, therefore, does fit under the rule. in comments on the connectivity report, the science advisory board asked to consider where the groundwater connections are of significant magnitude to impact the integrity of downstream waters. the scientific advisory board stated this represents an important research need for epa. considering this is still an active research need and the activity report is being used by epa to support the proposed rule, how does epa justify the rule of shallow sub surfaeizusu

conne connectivity? >> i think there are a number of pieces you suggested there, but the rule uses the connection with subsurface shallow groundwater as a way to determine agency. the groundwater anywhere is not covered under this rule. >> the problem is it's unclear whether it goes from one end to the other. if you're having trouble explaining it to us, imagine my constituents. they're having a great difficulty. >> the groundwater is not covered under the rule. >> but it slips into it. it's undefined when it moves from shallow subsurface into groundwater. i've got less hthan a minute. how can a regular citizen expect to know whether or not they are digging into something that would be groundwater which, as you say, is exempt under the

rule, or shallow subsurface water where the cwa comes into play. is it the responsibility of the landowner to review the literature since it's not clearly defined under the rule? >> they're both not covered under the rule. >> so you're saying shallow subsurface groundwater is not covered under the rule? >> correct. it is used by fuel people to determine the adjacency. >> it's used to determine whether it might be attributable. actual groundwater is not. >> i'm more confused than when i walked in here. i hope that, if nothing else, you get that we're so confused. this one, probably more than anything else, we're hearing

huge concern from business, from farmers. i got a great business community, a great agricultural community in my district. they don't understand this and they're scared to death. we need clarity. we need to take a step back. thank you for your indulgence, mr. chairman. i yield back. >> thank you, mr. perciapese. the third rule is jurisdiction over perennial strain. is that right? >> yes. >> love the short answers. what about ephemoral strain? >> yes. >> canals and ditches? >> mostly no. >> lakes, estuaries. >> estuaries, lakes, yes. >> we put up a map provided by the usgs that shows these features in the state of texas where i live -- i claim it as mine, of course, i'm very proud of it -- the key shows the

colors that correspond to the features. missing from this map are wetlands, ditches and other features that the epa and the army corps of engineers claim jurisdiction over. can you see that map? >> i see the map, but i want to be clear. we have not claimed jurisdiction over ditches. >> this map is not for regulatory purposes. we had them made by the usgs based on some of the -- just some of the epa's definitions. the map is dramatic, but shockingly, from what i have read of the proposed rule, the epa could go further than what we see here. in fact, the epa cites a study that estimated that the usgs maps underrepresent drainage networks by 64.6%. that's their quote. scale of the features covered by 60% and include wetlands, and we're looking at a regulated area close to double the size of what's on this map.

yet remarkably, the epa, you claim, the proposed rule does not -- you said this to the other members -- it does not expand the agency's authority. then you were asked, why do you need the rule? there is no way that this is what commerce intended. the supreme court has rebuked the agency, proposing areas that are remote from waters that are, quote, navigable in in facfact, quote. why is the epa ignoring the intent? are you above the federal government or the constitution? >> absolutely not. >> i would agree with that. it doesn't appear to the american public that that's your all's mindset. let me ask a question asked by robert smith. i understand that maps are made similar to here for each state.

i think it's important the epa release these maps for this entire process. today was talked about what is or isn't covered by this proposal. and epa's answers aren't making the situation any clearer. and i would add the truth isn't exactly flowing around here. the epa needs to release these maps so our constituents can identify for themselves whether they are subject to regulation. so here today, will you commit to releasing these maps that the epa has had made before the end of this month so that people can comment on them as part of the rule-making process as the chairman has requested? >> i'm not familiar -- these maps have come up before, and i have to apologize. i am actually really not familiar with them. >> you're in the dark about this. as most of our constituents are about this proposed rule. >> that's unfair. >> unfair, that's our

constituents' perception out there. let me go on. mr. chairman, i think that it's important enough that if this agency doesn't release the maps by the end of july that this committee compel the release. our constituents are confused, and quite frankly, scared by this proposal, this overreach. i think the only way we can get to the bottom of what's being planned here for regulation is to see it laid out on a map. so here today, i request that you make available to us and the american people the maps that the epa had made from the usgs as well as the wetlands map made by the fish and wildlife service. we want these maps. my guess is that they were created with taxpayer dollars, unless i miss my guess. they should be available to the

taxpayers in full disclosure, and we want to you make these maps available. mr. chairman, i yield back 10 seconds. >> mr. weber, and we were discussing whether there should be a penalty box for puns. >> thank you, mr. chairman. first of all, i would ask unanimous consent to enter a record analysis of the epa's conductivity state for waters of coalition. it is a large group of stakeholders that have come together with concerns about the rule and include everyone from farmers to home builders. the analysis points out flaws and with the report's vigor and questions the report's usefulness in a regulatory context. >> no objection? so ordered. >> i would also like to introduce a letter from the

indiana chamber of commerce expressing concerns about the potential impacts of the rule on indiana's economy. >> any objection? so ordered. >> this is a letter to me, and i'll just read the last paragraph from the ipd i understand chamber of commerce. we ask that you stop the epa from finalizing this proposed rule that would create a significant amount of uncertainty and impact the hoosier community in a detrimental way. it seems like another chapter in the epa's overreach. it's time to put a stop to federal intrusion on intrastate matters, especially when they're part of congressional past infiltration. first i'd like to thank you for your help at the epa. just because we have philosophical disagreements, it doesn't mean you're not working hard at your job. i appreciate and understand that. but we do have some

philosophical disagreements on the proposed rule and i've got some concerns from the farm bureau. this has been on the books for 30 years. why now? >> the -- one of the primary drivers is the fact -- and this goes back to the previous exchange -- that the supreme court has had two separate -- actually, more than two, but two in particular where they have looked at the existing way the agencies, plural, the corps of engineers and epa go about making jurisdictional determination. where does the clean water act apply? and again, where the clean water act applies will only affect anybody if they're going to discharge pollution, and it doesn't affect agriculture, so i want to be clear on that. we have to change the way we go about doing that to comply with. and here's where i think, you know, i agree with the mutual respect thing. i think we are trying to comply

with what the supreme court has suggested as the way to go about doing it, and i think it's totally appropriate that there may be a different point of view on that. i'm with you on that. >> i'll take you at your word on that. as far as exemptions go, who has the ability to eliminate exemptions once -- my main concern is jurisdictional here on this issue. states, local communities versus the federal government and the potential expanded jurisdiction of the federal epa for the states and the local communities. you know, people -- in agriculture, for example, they're touting 54 exemptions to agriculture. but who has the ability to change the exemptions once the jurisdiction is established? >> yeah. well, the exemptions are outlined generally in the clean water act itself. what we're trying to do is find them a little bit more clearly working with the u.s. department of agriculture, particularly the

exemptions that refer to conservation practices that take place on agricultural land. so those -- we feel they're already exempt, but the need to clarify specifically which kinds of practices are exempt are what we're trying to do. we've heard from farmers that we're getting too specific, and what if they did it in a slightly different way? would that then not cover it? so that's the kind of thing we normally would hear and try to fix. >> because a concern i have, which many of my constituents do, and honestly the american people not specific to the epa but the federal government in general. once the federal government has jurisdiction, then the rules suddenly change. and i think you're seeing that in health care. i'm a health care provider as a heart surgeon before coming here. once jurisdiction has been established at the federal level, backing that away is, first of all, nearly impossible. and secondly, the concern is that the rules will change,

including exemptions for agriculture and anything else. that's my concern. i do have a couple specific questions about farming, and i appreciate your response. these are concerns from an indiana farm girl that farmers have told them. for example, ditches. if a farmer has a ditch that runs alongside between farm fields and gather rain water that eventually flows to a stream or river, how can a farmer tell if it drains only in uplands? >> based on what you describe, that's what it is and it would not be jurisdictional. >> the farmer determines that or the epa determines that? >> the epa doesn't determine it. the corps of engineers does the field work if the farmer wanted to discharge pollution into that or something else. but we try to make it clear in the rule, and for the first time the definition actually includes these exclusions of these kinds of ditches. >> if a farmer has a small depression area in their farm fields where water ponds after

rain, how can a farmer know whether these are waters of the u.s. under the proposed rule? >> they are not. >> they are not. it says that in the rule? >> i don't know where it says it in the rule, but they are not. they don't meet the other definition of being a water. they don't have a bank and a high water mark. they don't have hydraulic soils. >> that's what i'm trying to get at with these questions is where the rule -- the level of uncertainty on the ground out in the community is about the proposed rule generates these type of questions. and so that's what needs to be cleared up, because, again, from my perspective, once the federal government establishes jurisdiction, retracting that is very difficult, if not impossible, and also there is concern that the rules within that jurisdiction will change, and you're getting this level of uncertainty against farmers.

all of these questions came up at the farm bureau. the main question is jurisdictional, and with that i'm going to have to yield back, mr. chairman. >> rest assured, wet farm fields are not jurisdictional. and just to add -- to be a help a little bit on the jurisdiction thing. in almost every state, and i think probably every state, the states are responsible for implementing the clean water act. so the jurisdictional determination made them aware they have to do their work, but the states are the ones that do all the implementation. i'm sorry, mr. chairman. >> thank you, doctor -- professor massey. i'm not a professor. very quickly, let me ask you this, mr. per -- >> bob. >> bob. thank you. do you anticipate having a larger budget at the epa next year or a smaller budget? >> for 2015? >> yeah.

>> the president's budget that was submitted to congress was smaller than 2014. >> what's the additional cost of implementing this new rule? >> well, it's a combination between the epa and the corps of engineers. >> we met before in the infrastructure committee. i asked you before skpand i wil ask you again. what's the cost of implementing this rule? >> if you let me shuffle paper, i won't give you the same answer. >> 100 to 200 million? does that sound about right? >> that sounds right. >> is it fiscally responsible to take a 100 to $200 million project when you anticipate your budget will decrease? >> when we do those cost estimates, we are doing the cost estimates on what the cost to the economy is. and so that means, like, 160 to 280.

and those are permit processing expenses and mitigation expenses that might have to come into play if somebody wants to get a permit and they do the activity but they have to do mitigation. >> you plan on passing those costs on to people that are going to file for permits? >> those are the costs we estimated of doing the permits and also doing the mitigation. >> i think it's physically irresponsible to undertake this new rule that will undeniably cost you more money to implement when you know, in fact, the president acknowledges that your budget is going to go down. let me ask you another question. can you have science without measurements, without numbers, without units? >> for most science, you need that. i'm going to say there are probably some that you don't. >> i'm looking at the rule here, and i can't find any numbers. i can't find any unit measurements. let me give you an example.

definition of a flood plain. the term flood plain means an area of bordering inland or coastal waters that was set by sediment deposition by said water in climate conditions and is moderate to high water flows. is moderate to high a scientific term? >> i think these are terms that are used routinely in the science of hydrology. >> can you convert that to gallons per minute, moderate to high? >> it depends on the size of the stream and the drainage area. in the case of the atlantic ocean, it's pretty big. >> you know what, without facts, all you have is opinion. this leaves it open to opinion, so without units, you cannot have science, without measurements. let me ask you another question from the definition here. these are features that are exempt under this rule. one of them is an artificial lake or pond created by excavating and/or diking dry land. i own a farm, i've built a few ponds. the last place i would put a pond is where there is dry land, where there is no water.

how can you dike dry land and create a pond for irrigation? >> well, you take an area of a stream -- i mean, an area of a field or a woodland where the slope is in this direction, and you put up a dike, and when it rains the water comes down and settles behind the -- >> so you get some water that's coming, not just landing in the pond, but from surrounding areas. >> right. >> so there is a flow across that land. >> yes. >> if the goal here is to create an exemption for landowners that they can understand, why wouldn't you put a scientific unit of measurement there? what's the unit of measurement for a pond or a lake? >> gallons? >> gallons, but that's -- that's a good number. acre feet is another one. >> acre feet is a bigger one. >> so why wouldn't you put a definition in there that's scientific? because clearly there is flow of water going into this.

so there has to be some flow. you can define it in gallons per minute or something like that. the pond in acre feet. because it's clearly not going to be on dry land if you're creating this or it wouldn't exist. you would have a dry pond and i have built a few of those, too. >> the concept of dry land is the land is not currently a lake or a stream or river. >> you would have to be under a roof, really, to be completely dry. there has to be some flow. what i am asking here is -- >> it's a term of art in hydrology. >> a term of art. i would like a term of science. how high is a bank? >> there is criteria for a bank and there is criteria for a high water mark. >> my time is almost expired. on the flood plain, what are the units to describe the size and scope of a flood plain?

>> normally the floods are described by frequency of in inundation. >> so why wouldn't you define a flood plain that way instead of leaving it open to high floods? would you agree that's not a scientific term, moderate to high? there's no units, no number. >> we've asked for help in finding the heights of the flood plain. it's a specific question we asked in the proposal. >> that's a science that's already established. i suggest you go use some science. >> it's 100, 500. we asked for advice on what size and how to do that. >> it's a very clear science. you could use some science in these definitions. thank you. >> thank you, mr. massey. mr. brooks? >> thank you, mr. chairman. i don't know that we haven't heard these questions. it seems mr. massey has a doctorate. maybe we ought to give him an honorary one right now.

mr. chairman, i have a letter from jimmy parnell at alabama's farmers federation dated january 2014 that i would like to add into the record. >> so ordered. >> it's my understanding that this rule relies on the, quote, significant nexxus test to determine what other waters would be regulated. as all hydrological connections are certainly not significant, can you please explain how the agency plans to identify what constitutes a significant connection? does the agency plan to establish some means of quantifying the significance of a hydrological connection? if so, can you provide a real world example of how the determination would be made? >> we've tried to use two key established approaches to define when it's significant. because i think, as many have pointed out already and i think it's worth noting, that a

broader hydrologic cycle, almost anything can be defined as connected, so significant is a component of having to do the work here. so we've proposed that if it's a tributary that runs either all the time or seasonally, as justice scalia outlined, that it would have to have water in it enough that it had a defined bank, high water mark and a bed. now, there are criteria for those that are defined in the science of hydrology. so if it doesn't have those characteristics, then we're saying there's not enough times that water is flowing in it that it's significant. so it's not significant. so that means the puddle in my backyard, my roof drains, things like that don't have those characteristics so they're not significant, they're not covered. wet fields, same situation.

and for standing water, obviously if it is a lake that's wet all the time, or if there's a wetland that has the characteristic hydric soils and hydrofitic vegetation that is characteristic of science of what a wetland is, then that would be significant. then there are other issues that the supreme court has asked that we consider, things like adjacency, et cetera. so if you have some of these characteristics but you're not adjacent -- and we've proposed some approaches to deal with that issue as well. >> thank you. let me move to my second question. dr. david sunding, professor of the university of california berkeley has published an analysis of this rule, and i'm going to quote from his remarks. quote, epa is proposing an

expansion of the definition of waters in the united states to include categories of waters that were never regulated as waters of the united states, such as all waters and flood plains in areas of certain ditches. the inclusion of these waters will broaden the scope of the clean water act and will increase the cost associated with each program. unfortunately, the epa analysis relies on a flawed methodology for estimating the extent of newly jurisdictional waters that systemically underestimates the impact of the definitional changes. this is compounded by the exclusion of several important types of costs and the use of a flawed benefits transfer methodology which epa uses to estimate the benefits of expanding jurisdiction. the errors, omissions and lack of transparency in the epa study are so severe as to render it virtually meaningless, end quote. those are dr. sunding's words, not mine. how can the public adequately outline the impacts of the

proposal if the economic proposal is as useless as dr. sunding indicates? >> we have that report. i have not personally read it yet, but it's going into the docket. we will formally put it into the docket for this rule and analyze it to see what we may need to do with our economic analysis. i can tell you right off, and we had a discussion about this earlier and it was probably less successful than i would desire to explain this, but all flood plains are not jurisdictional waters. just the fact that it is inundated annually by a spring flood or every 10 years by a 10-year flood does not make it jurisdictional. it's just an indicator that the water that is there all the time or under those other characteristics i just mentioned to you then it would be jurisdictional because they are adjacent to the other stream. we use it as a way to determine

in the size of hydrology whether it's adjacent. so if you make an assumption that the entire land mass of a 100-year flood plain would somehow require a permit and everything, then you get into a situation where i think that analysis did that said we're underestimating. i want to be more clear on that and we're going to look into that in more detail. >> thank you, mr. chairman. >> thank you, mr. brooks. ms. loomis? >> thank you, mr. chairman, and thank you, mr. perciapese, for being here. this is the rule that ter fiz peop -- terrifies my state more than any other rule, so my questions are going to be very specific, but i want you to know how terrified people are. now, i'm from the west. i'm from wyoming where water is scarce, precious, carefully

admin sterd. and the resource of which we worry the most, fret the most, and you have people in the west completely terrified of this. i just want you to know that. part of the terrifying effects of this is that the supreme court rejected the clean water act jurisdictional for isolated ponds because they lacked a significant nexxus to navigable waters, and we don't understand why the panel of scientists is not focusing on what significant nexxus means. instead, this rule is focusing on connection and connectivity. the courts have repeatedly said a connection is not enough, and yet the epa is basing this rule on a report that evaluates connections. so i would argue that that is

among the umbrella basis for our huge concerns. the western governors are concerned, the western attorneys general are concerned, the western state engineers are concerned, the water users are concerned, the local water administrators are concerned. it is an enormous issue. laying that groundwork, here are my specific questions. we don't understand why the epa allowed only an additional 20-day comment period on the interpr interpretive rule on the ag exemptions. there are some exemptions, 56 practices that are exempt, as i understand it, but there are 100 other practices that we believe should be added to this list. here's my questions. please provide a detailed analysis of how the national conservation resource service

conservation practice standard for irrigation canal or lateral -- irrigation canal or later lateral, that's code 320 -- allianz for a treatment of these facilities in the proposed rule for the record. >> i can't do it off the top of my head, but i'm happy to do it for the record. >> fabulous. and the other questions i have will be for the record as well. please provide us how the nrcs conservation practice standard for an irrigation field ditch. this is code 388. aligns with the treatment of ditches in the proposed waters of the u.s. rule. please discuss how the nrcs standards for a pumping plant -- this is code 533 -- a stream crossing -- that's code 578 --

and a structure for water control -- this is code 587 -- align with the regulatory consequences of the waters of the u.s. proposed rule. we need detailed written analyses of these for the hearing record. we also need an analysis in the rule-making docket so people have an adequate opportunity to consider and comment on these analyses. these are the kinds of details that have heretofore been left out, and when you couple the fact that this scientific committee that was assembled has, i think, two people out of 50 that are connected to tribe, states and local water regulators provides no comfort for us. and those two that came from

state agencies both came from the california epa. there's almost no state agency that is more dispadispair -- disparate from our state's reference than the california epa. the only state that is more disparate is the u.s. epa. we feel that this scientific committee has no expertise in our water jurisdiction concerns, quality, quantity. and as i said at the beginning of my remarks, there is just no rule that terrifies us more. thank you, mr. chairman. i yield back. >> thank you, ms. lummis. hopefully staff got that list and you'll be able to respond to that. >> it looks like we'll be able

to get it somehow. i tried to write them all down. thank you. >> thank you, ms. lummis. now it's finally my turn. i have two letters i wish to put into the record without objection? if there is afternoon objectin going to be really worried. from the electrical association of arizona and sand and gravel association. no objection? so ordered. it's been fascinating to listen to this because -- and i should disclose about six weeks ago right down the hall, we did one of those things we try to do with big pieces of legislation where you invite in a handful of lawyers. and this was an interesting group. a couple lawyers -- i think one had actually even been in staff over at the epa, so they weren't necessarily an idealogical set. and we did that sort of game

theory. let's walk through the sections of this rule and see what it models, see what this means. how absurd could you take it? where would a court take it? and i think from those sorts of discussions, that's where you're picking up the stress from many of us up here. it may not be what you intended, but it is what the words say, and particularly in a letigious world that we're in right now where if the words have any movement, someone is going to litigate on it. so could i beg of you -- i know this is sort of a lightning round. let's do flood plains for a moment. in the discussion here, flood plains kept being sort of adjacent to an active waterway. for those of us from the desert southwest, if you were ever to look at maricopa county, third most populist or fourth most populist county in the united stat states, but the top of my area

has huge, huge areas designated as flood plains even though it may be in an every other year monsoon season. how does that fall into this? there are areas there where you have to get >> well, i'm going to -- so we have asked that we get some comment on the concept of using a floodplain, which is obviously associated with a water, as a mechanism, a science-based mechanism to determine if there are waters in that floodplain, not at the moment it is flooding, but -- >> the problem is the use of the word floodplain for those in the desert southwest where i get four inches a year and it comes on a tuesday. >> so that floodwater, those lands that are flooded on that particular -- i've been in arizona during the monsoon season. and along the salt river, or rio

salado, you mentioned -- the chairman mentioned i worked at the audubon society, i watched on the nature end -- the william pullman nature center, i think on center street. >> yeah. >> the -- so we're using that as a -- to say, look, if this area floods, then if there is a stream in that area, or a wetland in that area, then the chances are it is probably has some connection to the main river. that doesn't mean the whole floodplain is somehow becomes like a dry -- >> let's go through this in a mechanical and then let's do a case scenario. >> those floodplains, water runs through them and hits a wash and hits another wash that eventually ends up in the verdi river and then the salt river

and the rio salado project, so in that case, you would see a nexus. >> there would be a nexus on the riverbed, you know, in terms of jurisdiction. and if there was another river or wetland feature that met those other characteristics, had a bad bank and high water mark or soils and vegetation, it would be looked as as being adjacent to that water. but the entire floodplain, and this is -- >> no, no, that wasn't my question. my question was that wash -- let's back up a little, because you have the experience. salt riverbed, 1navigable, woul it fall under -- >> it would fall under a tributary that is tributary it a traditional and could affect -- the quality of the salt river could affect the wall street of

the navigable water. >> in my remaining, the beauty of playing chairman is giving myself more time, so let's do a little game theory. i have an occasional creek behind my home. runs certain times of the year. and i go out and i take shovels and shovels and shovels of dirt and throw it in there. did i violate the rule? and that creek runs down to a river. >> you're saying that that creek has water in it every year? or just rain? an erosional feature? >> let's say it is running at that time and i'm throwing dirt into it, pollutant, as defined and so in that case i would have needed a 404 permit to be throwing the dirt in. >> really, i mean, there is so many reasons why it might not be be.

i can't really -- >> this came dpr ofrom our legak group last month. okay. so how about if it is an occasional or this time i'm throwing dirt into it and it is dry but i'm changing the structure of it. but when water does come down it will pick up the additional sediment and run it down to the verdi river in my area. still probably would fall under. >> recognizing i have a modest amount of familiarity with what that place looks like, even if you didn't put the dirt in there, i don't know that it would be noticeable because you've got a dry situation where the sand and the smaller grains and even the stones depending on how torrential the rain might be are going to move. >> you can see where that becomes a really interesting standard. now the standard is noticeable. >> i'm sorry, i'm just speaking -- >> i know. i'm not trying to hold you -- i'm trying to get my own head around it because i've had

groups of very smart lawyers and some of them not ideological at all, just good lawyers, who are way over here saying, oh, they don't mean that, and over here saying, i'm going to sue and litigate and going to win on this because here it how it is worded. that's where the fear comes. because for many of us who live out in the desert southwest, we ride our horses through washes, we plant paolo verdi trees and fertilize them alongside the washes. have i just created a pollutant because that pollutant runs down and eventually hits a dry salt riverbed, well, the dry salt riverbed hasn't run water down to the colorado in 30 some years. maricopa county is one of the places on earth where we recycle every drop of our water. we do some great stuff. >> yep. i agree. >> last two things. i know i'm way over time. i know there was some frustration shared from you on people you thought were pushing things, maybe exaggerating,

conflating. but we even did it in the conversation here of folks talking about drinking water. well, that's a different statute. so we got to be careful on for all of us conflating. last bit, on ditches. okay. let's say i have a ditch, we'll call it the central arizona project, the world's longest aqueduct. and it puts water into a large lake. lake pleasant. and then picks that water back out of that lake and continues to move it through my state. the fact it was parked in, because the lake is under the jurisdiction, currently and in the future rule, right? so did the transfer from that ditch into a holding lake and then transfer back into a ditch all of a sudden turn the water movement there under this rule? >> you know, i'm not 100% familiar with that situation. i have some familiarity, but the central arizona project would not be -- in any way, shape or form. >> but the ditch itself, you

said a couple of times, the ditch is not, but this is a different mechanic. remember we put it into a regulated lake as a holding. >> well, you know, irrigation ditches are not -- >> but this is -- but you can start to see these are where -- >> is this lake -- i apologize for not having -- >> lake pleasant. >> is it used to recharge ground water? >> no, no. that's -- this is actually mostly for water supplies, irrigation supplies, municipal supplies. but it is also a large recreational lake. so large -- you start to see where we have some design issues because also in desert southwest type of agriculture, we use a lot of ditches where we'll gather water, run it around, and then put it back. >> the danger you have with the guy at the top or near the top of the food chain trying to answer these technical questions on a particular matter is it is difficult, but our approach -- we do not want irrigation

systems to be jurisdictional. we certainly don't want ditches that if you took the water away, they just go back to being what the land that it was. >> there will be some other discussions. and if we have time, we'll send you a couple of notes saying there may be a need to change some of that ditch language because particularly for those who in the desert sweouthwest, e way we use them, transferring back and forth from different bodies and different uses. you can see where some of the concerns are. i think with that, because it is not like i haven't gone double my allotted time. i appreciate everyone's patience. i need to thank you as our witness. to the members of the committee, we'll have -- if they have additional questions for you, and we'll ask you to respond to those in writing. the record will remain open for two additional weeks. comments and written questions from any members. the witness is excused. thank you for tv. >> thank you, mr. chairman. >> anything else?

all right, and we're adjourned. thank you. gm ceo mary barra is back on capitol hill to answer more questions over the company's delayed ignition switch recall and how corporate culture played a role. in previous testimony, a gm internal investigation report revealed that there was a lack of urgency and failure from personal -- personnel in charge of safety to link and act on the ignition issues. faulty switches believed to be responsible for at least 12 deaths across the nation. the recall that started in february covered more than 2 million vehicles and includes

the chevy cobalt and hhr, the saturn ion and sky, and the pontiac g-5 and solstice made from 2003 to 2011. miss barra with kenneth feinberg who is heading up gm's compensation program and gm's top lawyer are also appearing at today's hearing. senator claire mccaskill chairs the subcommittee, while senator john thune serves as the ranking member. we're expecting mr. feinberg to appear first.