r the ftc. 11 years ago we created the do not call registry to protect consumers privaciy against unwanted calls. i do believe that program has been highly effective from reducing calls from legitimate telemarkets but several years ago the landscape started to shift in a very troubling way. robo-calls were on the rise. in 2009 the ftc regained 60,000 complaints about robo-calls each month. currently we get approximately 150,000 complaints each month. a dramatic increase. so what happened? major technology changes in telecommunications services have led to lower costs and improved services for consumers, that is good news. but unfortunate fraudsters have taken advantage of the lower costs which brought faster and cheaper automatic callers and

have further exploited spoofing which enables the scammer to hide its identity and location in the world. in short they have taken advantage of this cheap model and used it to blast literally tens of millions of illegal robo-calls over the cost of less than one cent her -- per call. coupled with the legal privacy invasion we see that the robo callers pitch goods and services riddled with fraud. we continue to shut down a major robo call operation that ripped off seniors by telling them they were eligible to receive a medical alert brought by a friend and those who pressed one said it was approved by the

american heart association or the american diabetes association. we allege those claims to be false. that is precisely the type of robo call that miss blaze referred to and i know that the state of plaintiff was a coplaintiff in that case. in another recent case filed with ten state attorney's general, including missouri, and the lead generator that provided the names and the telephone numbers and the companies that helped the telemarketer spoof the caller i.d. to hide its identity they were responsible for blasting billions of robo-calls attempting to sell a cruise to the bahamas. i believe our coordination with state and international partners is as strong as ever. as you know, while the ftc has no criminal enforcement authority, i'm happy to report that some of the individuals sued by the ftc for placing illegal robo-calls have been prosecuted criminally by the

department of justice. still we know law enforcement is not enough. we've committed to stimulating technology solutions by issuing no less than four challenges -- challenging entrepreneurs to develop solutions such as robo call blocking services that will zap rachel from card holder services before she can spew her lies. our fourth contest takes place in august. it is entitled robo-calls humanity strikes back. i think that title says it all. we think the contests have been very successful. as attest that one of the winners of the first contest brought his product no more robo to the market place six months after winning. no more robo now has 170,000 subscribers and reports to have blocked 24 million calls. with these challenges and as detailed in the testimony the ftc plays a leadership roll to stimulate rowe puft dialogue with technic experts and

academics and industry groups and i do want to under score that our work is international in scope. members of the london action plan and the voice and telephony special interest group are meeting in dublin island, as we speak to address the issue robo-calls present. and finally i want to assure you of our ongoing and sustained commitment to halt telemarketing fraud by halting the do not call registry and attacking the robo-calls. i look forward to your questions. thank you. >> thank for your testimony. mr. dundurand. >> i want to thank german senator collins and my friend and ranking member mccaskell. i apologize. i will be redundant and we've heard this before. but we have a division dedicated

to responds from missouri consumers and we receive complaints about a wide variety of scams and frauds such as illegal debt collecting practices and identity theft but the number one complaint by missourians but a significant margin is about unwanted and illegal telemarketing calls. in 2014, the vast majority of complaints our office received of the well over 52,000 calls we received were will illegal telemarketing, the next highest category complaint was just under 1200. the no call allows individuals that don't ant to be called to register residential and cell phone numbers on the no call list. every day our no call unit receives complaints from many seniors who have been abused or harassed by telemarketers who

have no respect. last month there was a complaint from an 80-year-old woman in st. louis that she received a call that she is eligible for someone who told her she wasselith for a back brace and after hanging up the phone she quickly realized something wasn't right and called our office. robo-calls typically target senior. one recorded message making the rounds informed the senior consumer that he or she sell inlible for a free medical alert bracelet if they will provide their identifying information. while some technology such as caller caller. >> d. spoofing happens when they show the caller i.d. information to disguise the caller's true

ied as -- id as you saw from coming from the ssi. but upon answering the call they are asked survey questions designed to illicit personal information. our office is also fighting back in the courtroom. in 2014 we obtained more than $600,000 in judgments penalizing telemarketers for illegal contact and significantly our office also obtained court orders prohibiting 28 telemarket earps from placing another call into the state of missouri. but, they are clever and they are relentdless. unfortunately as senator mccaskell told us, it becomes as frustrating as whack amole we shut them down and they pop up again in another state.

some set up shop from overseas locations nullifying our location jurisdiction over them. this is a battle that must be fought on in fronts. we need the help of private industry including the teleproviders to help deter the telemarketing calls. technology exists to reduce the number of robo-calls to consumer phones. these quote call blockers filter telemarketing calls before they reach the consumer phones. thus dramatically reducing the number of calls a person receives. major phone carriers have resisted allowing the customers to have access to the numbers quoting that the law prohibits it. the current legal framework does not allow phone companies to decide for the consumer which calls should be allowed to go through and which calls should

be blocked. if so, then that should be changed. if that is the only thing stopping them, then by all means we should clarify the law and give them such power and that is why craig foster and craig zeller with chom zonly is friends and joined by the other attorneys general penned a letter to the fcc attached to my testimony as exhibit a. we're thankful and encouraged by the fact that kwharm wheeler agrees in response to the letter chairman wheeler submitted a proposal to protect americans from robo-calls and spam calls and it looks like the fcc will provide clarity based on chairman wheeler's request they will vote at the commission meeting on june 18th. our office is encouraged by the progress made be we recognize the challenges that need to be addressed. consumers have made it clear

they are fed up with the calls they receive. we must continue to research to keep up with the illegal robo callers. the telephone carriers are in the unique position to help their own customers block the calls. one the major carriers are on board we can give them the power to stop the illegal telemarketing phone calls at their inception. and while we don't share the existing rule of law to the extent there is any ambiguity regarding the telephone's legal authority request that they block the unwanted calls before they arrive we would request clarity on that issue. thank you again for the opportunity to briefly testify here today. >> thank you very much for your testimony as well. miss blaze, as i mentioned, you kept a robo call log that you shared with the committee. it is extraordinary how many calls that you received.

you were very precise about listing all of them. and that in many cases you would get repeat calls. you would hang up and the person would call back again. i'm curious whether you felt when you did answer some of these calls that the individuals had information about you that made the call more convincing and might be more persuasive to an individual that is less sophisticated than you are in dealing with these calls. >> chairman collins, the only time that i felt they had information about me specifically was the business calls. because they got information somewhere that i have a business. so they assume i take credit cards and they assume i have an

atm or would want to buy one for my business. i can only assume it came from the sales business i have to have to run my business or from a business directory put out. in fact, i've had a lot of trouble with the business directory sending me things every year saying if you don't return this information confirming who you are, or what you do or what you sell we're going to have to drop you from the list. so i say hooray drop it. but every year i get the same one and they describe my business that it is nothing like. so i suspect they are getting my number from that business list, which i suspect got it from the state. but i don't know that. >> since not everyone has seen the call log that you put together over a month's time, could you describe in it a little bit of detail the number of calls you received and the

type of calls. >> oh geez. it is a big long list. something like 74 calls. i put that in my written testimony and didn't count this up. and since i sent this to you, that same caller that called five times in one day when i did not answer, has called me back another couple of times. >> and this was just in a month's time. >> yes ma'am. this is just one month's time. i started keeping this log on the 5th of may. >> and you are, i assume, registered on the do-not-call list. >> oh, yes. >> so you got more than 70 calls in a month's time despite being on the list. >> yep. >> which says something about the efficacy of the do-not-call list. professor, i understand that some commercial carriers are hesitant to offer robo call filters because of a concern that they cannot legally block a

call under their common carrier obligations and as has been discussed today the fcc chairman has released a proposal intended to clarify this legal issue. i gather there is dispute over the legal issue, and make clear that robo call filters are legal. so in the event the fcc accepts the chairman's proposal, are there robo call filters available now for consumers that could be put in place immediately by commercial carriers by the telephone companies to help protect consumers? >> sorry, chairman collins, the three types of solutions that could be deployed immediately or within a matter of months or short of a year, one which was already mentioned third party

services, that essentially rely on a specific feeture called simultaneous simultaneous ringing that some providers provide that allow the consumer to filter calls. that solution currently is only applicable to more modern phone systems, typically provided by the cable companies, voice ip companies or fiber based phone services by the prad issal phone companies. the second one that i see as particularly promising is that if the phone companies would provide external interfaces api, which would allow third parties to decide on the consumer's behalf, to decide which calls to block redirect or redirect to a third party for

example. and the third type of solution i mentioned would be apps that you could install on your smartphone that would block it. currently these apps exist but because we have to work a little bit on the side, they are not only well integrated to the existing phone devices, they don't work all that well. so with the cooperation of carriers these type of downloadable apps could work much better than we do today. and the fourth one again i believe is the kind of wholesale prevention of number spoofing could also make it the job of enforcement much easier because it would become more more difficult for legal telemarketers to spoof, for example, nonexisting numbers, which is the way it is done

today. >> thank you. so the technology does exist for us to deal with this problem. senator mccaskell. >> thank you senator collins. professor, is there any law that we need for the encorruption to ensure the validity of a caller i.d.? can that be done now without any law? >> i'm not a lawyer. but cyber security adding to technology does not generally require general legal authorization, just like banks didn't need to ask permission of the fdic to add protection to their bank websites. indeed longer term i think we need to reverse the discussion, namely what obligations to various participants have to

protect that information. >> right. i think that i'll follow up with the fcc and make sure but i'm hoping that along with the clarification that there is no barrier to the common carriers' efforts to help consumers block this call, that they would also do what they can to enoccur an this encorruption possibility because i think it is a two-fold problem. one, making sure the caller i.d. is who it says it is, and two being able to block the calls. deputy attorney general, i know your office has done great work in this area and i know you've banned 28 telemarketers, but i'm -- as you know, i'm an old prosecutor. aren't we going to have to start putting some people in jail? the people that are doing this the reason it is whack amole is because they don't fear any

authority at this point. they are fearless of authorities. if we began picking off -- and i know that is it likely that we're going to get u.s. attorneys office to get all in on this and i'm painfully aware of the limitations of your office in terms of criminal prosecutions, but is there -- are there laws in missouri that you think currently would allow to you put some of the people in prison? >> i don't think we have laws that the attorney general office initial -- >> what about local prosecutors do they have? i guess they could be prosecuted under stealing by deceit? >> they could. >> or attempted stealing by deceit. >> and the laws are there. if it is a crimea violation of proving their intent rather with intent to scam which makes it more difficult, those are available. right now it is difficult. the feds have been helpful in that regard and there are multi

state efforts to prosecute folks so they are -- the d.o.j. is assisting in that regard but we are fairly well handicap without additional jurisdiction and as you know that is very hard to come by, the authority and i'm not even saying i'm for that. but i am saying that we might want to look at what state statutes can be utilized and what communication you have with local prosecutors to help facilitate them bringing these cases. i do think the more people criminally prosecuted the more quickly you'll clean some of this up. let me ask you this does it work when you ban these 28 telemarketers, do they stay out? have you caught them coming back after you banned them? >> we haven't caught the same named persons or named companies twice, but we believe they change the name of the outfit or move somewhere else or they network from state to star until

they get barred in another state and continue to do this. so that whack a mole theory is truly hard to get a grip on. >> so what about cooperation from the common carriers. greeceman you were at her hearing in 2013 and you know that -- i don't get this, candidly. i think right now, if any carrier carrier, and came out with any ad came and forget about cut your bill in half and if you can hear me and if they came out with an ad, we're going to block robo-calls i don't think they could handle the business they would get. and i don't get why they have been dragging their feet and why it will take the fcc clarifying that this is not a problem. do you believe if the fcc votes the way we hope they will vote tomorrow that we'll see a land rush of carriers coming to the forefront saying yes we'll offer

this service to our customers because primus in canada does it for their customers at no charge. >> i would like to be cautiously optimistic and hold my breath. for years we've been urging carriers to do that citing primous as a model. the ftc commented on the fcc saying there is no legal impediment that carrier subscribers are desperately asking for. we're eager to work with them and they do participate in the various working groups that we've referred to and again i would like to be optimistic. >> usually american companies are so smart about marketeting. i don't get where all of the marketers are so dumb on this. it is amazing to me. thank you. >> one reason i believe is that it is often sold as part of a bundle, as opposed as a stand

alone, and most people get a broadband and voiz bundle. >> i don't think people realize i got choice for a bundle. i would rather go for the bundle with the block on the robo-calls. i bet a vast majority of americans agree with me. >> senator hell -- no, senator tillis. >> i just got a copy of the bill i think you are putting forward on the robo call and the spoofing and the improvement act. and there is good thinking in there. i look forward to speaking about it. i want to continue the line of questioning about the reason why some of the common carriers would not be motivated to do it. it would seem to me, but again it is a product differentiation and it raises the question is there some other economic value to these calls going through. do any of you care to speak on

that? >> i can -- the economic value differs greatly between carriers. it is usually termination charges. but my sense not being a carrier of business -- a business person, that the amount of money they would get for termination charges is diminimus, particularly for the bigger carriers but the smaller rural carriers for obvious reasons, but the larger carriers get more because they have exchanged traffic with each other so i have a hard time believing it is a lost revenue one. what i have heard informally from engineers, is that often the voice technology being deployed it not seen as a revenue producing opportunity it is a must offer technology you have to offer voice just like cable company offers e-mail

service but they don't differentiate based on that and they seem very reluctant in some cases to invest resources into improving the technology they have. >> and professor i wanted to ask you some questions about the technology. you were talking about, i think, some of the emerging technology, for the voice officer ip and the sign will ring and how that works and how the apis could be used and the underlying or the cell technology but there is still this area out there with the older exchanges non-ip based and if we make headway and the voice over ip it seems like the areas will be rural and disproportionately high and aged population, the folks that have the traditional exchanges, so

what sort of technology options are there for those sort of residents that are still in -- that are two generations behind arguably most of the telephony that you are ban people or younger people use. >> senator as the chairman pointed out, most of the illegal or robo-calls originate in voice over ip. >> they can other nail there but can end up in a private exchange. that is what i was referring to. >> so what happens is there is always a gateway between those two worlds, the legacy world, the tdm world and the voice over ip world. so those gateway providers are in a unique position to do exactly that filtering. they have modern software equipment. >> at the point of entry. >> at the point of entry. >> what sense do you have in terms of the cost to implement.

and i understand what you are talking about, because the gateway between the originated call and the teleco exchange and what exists out there and what magnitude of cost are we talking about? >> again i'm not an equipment vendor so i don't want to speculate too much but generally speaking these devices that are interfacing between the two worlds are session border controllers and they are designed to be highly programmable so they already have interfaces for other purposes such as billing, fraud control measures this they take to prevent toll fraud to do that. so my sense is with existing deployed gateway technology that requires not adding hardware, but adding additional software functionality that is well within the realm of feasibility. >> thank you very much. thank you, madam chair. >> thank you. senator kaine. >> thank you madam chairman and

thank you for the witnesses for being here today and your testimony. i noticed earlier today it was announced that the house appropriation bill was released and it proposes for the fcc in ny 16 a $315 billion budget which is a cut below fy 16 and $70 billion below the president's f of y 16 budget request and we have a lot of budget requests but this demands vigorous fcc enforcement and at the very time when we need it for this challenge and otherle chaenks dramatically reducing the fcc budget seems unwise to me. that is a personal opinion. i want to talk about the issue of consumer education. i would assume that that has to be a key part of this. there is the enforcement strategy, the technical approaches to solving the problem and also on the consumer education side. and miss blaze i'm interested in

your testimony. you started to get this log because you knew the calls were scams. what is the best way to get information out to seniors or others who might be vulnerable to scams and what is the best advice that we should be giving them? is it just do telephone solicitations. i heard my wife say all of the time i don't do solicitation by phone and what is the best channel to get advice to people in your view? >> i would say the best advice is to just not answer the calls. if you answer the calls, you're giving them more information than you want them to have. if you don't answer the calls, they eventually will stop calling you, but then they change and get a new number and try again and think maybe this time you will answer the call. i think that is the best thing you can do, is just not answer it. you can get some of the robo

call blocking devices and use no more robo but those things have to be programmed and you have to say don't answer this number from this caller i.d. and then when they change, which they do, then you start all over. so it's -- i hate to say it again, it is whack a mole. it is totally whack amail. there is one company associated with five different companies with a bunch of different phone numbers, and you can't chop off all of those heads. they go from one to the other to the other to the other to the other and there is nothing you can do about it. >> how about to my enforcement community experts what is your thought about the advice we should be giving? one of the things this committee does well is we have a website, we put up information and we have a hotline for complaints, we try to use these hearings as

a way to give people advice, here is what you should do. so what is your general thought about the best advice to give to people. >> and we have the same information on our website and we do consumer education and awareness across the state. and another piece of advice is not to answer the phone but if you answer the phone and if there is any hesitation, then hang it up. and you say hello and it is dead silence until the robo call kicks in. and the problem i see and that is why we need the help with the blocker at the inception my father will be 85 next month. he tells me nobody ever calls me. i don't care for some of those folks what we tell them or how often if we tell them if the phone rings they are going to answer it and they are thrilled to talk to anybody and so we need more help than consumer education, which we beat the drum daily on but the question is a good one.

>> please. >> consumer education is a critical component of our law enforcement work and policy work. our consumer ed message is clear and it is generally consistent with what you've heard. if you pick up the phone and it is a robo caller and you don't know who it is just hang up. don't press one or two just hang up. and we disseminate that loudly through the oorp and consumer federation of america and through tremendous outreach with our educational initiatives. >> and then ms. blaze back to you. when you started to do the log and everything, was that just because of your own inate and you were mad at these folks and were suspicious and had you received consumer education and these are scams and i need to keep a record of them. >> well i was annoyed beyond belief and i kept a written -- and i said this one did this and

this one did that and i kept it on sticky notes and when consumers union decided to really take this on they asked people to start keeping a log. so i changed my format from scribbling stuff down to actually making this log. and i did it because that is what they asked to do. and there were several places -- there were several requirements for this where you log them and then use a robo caller and turn it off and log them again so you can see if the blocker -- if that made any difference. so i was mostly following their instructions on what to do. but then my attention to detail probably got out of hand and i kept a whole lot more information than i needed to. i would like to make a correction from my further answer to your question. i went back and looked at my testimony, my written testimony the 74 calls were the number of calls that i got.

62 of those calls, it was less than that before when i sent you the log, adding the ones i got back, 62 were robo-calls that were not charities, those were actual telemarketing or scam calls so it was 62 out of 74 were horrible things. and i even kept -- to answer some of the other questions, i even kept carrier locations from some of these to see if i could find some kind of a pattern, but i couldn't. they are all over the map. >> if you had -- you have an interesting story because you combined the robo-calls that might be directed toward seniors with the robo-calls, directed to businesses and you are running a business out of your house you are not going to be that successful in your business if you don't answer the phone so you have to answer the phone. have you had conversations with other business owners about this, other small business owners and they are experiencing

the same thing because wur talking about two different kind of scam calls and i'm windowing how constant it is on the business side, especially with small businesses? >> i haven't talked to people but i've gone on line and looked at testimonials from business people and it is all over. they are all -- these people call my business three times a day. i get this call five times a week and i tell them to stop calling and they keep calling. it is pretty much rampant that it is -- it is across the boards, you know. and one more thing about people getting some information, of course the one trying to sell the bracelet where it starts hello seniors, well he had enough information to know i'm a senior. >> i forgot i was on the clock i was so interested in the questions. thank you, madam share. >> thank you. senator donnelly you are the one who can complain to your colleague. >> well i'm going to give him a pass today, is what i'm going to

do. >> i'm not going to. >> well, you're like that richard. well thank you all for being here. and this is for mr. dundurand. and you cite an example of a complaint from an 80-year-old woman from st. louis ranking members state who received an unwanted call for a back brace paid for by medicare. we've heard about the calls from seniors organizations, physicians, from folks in indiana who have been on the receiving end of harassing phone calls from chemical equipment suppliers that they neither want nor need and they use aggressive tactics to persuading seniors to order unwanted items at medicare's expense. we have an obligation to protect the privacy of seniors and to

protect taxpayer dollars. can you talk more or a little bit more -- in your position as department attorney general -- deputy attorney general in regard to the calls like these. >> and i will talk about what senator campaign and mccaskell as well, and funding is a problem. we operate on 15% less than we did when we started in 19 -- in 2009, but when we increased the ability to register your cell phones, we increased the number of phones we're responsible for from 2 million to 4 million with no more folks to deal with it and they know that. an the trends are somewhat, senator collins, away from land lines toward cell phones now they are figuring out how to get to the cell phones and will mushroom and mushroom and so far we still get more complaints

from registered land lines. so the trends are they are getting ahead of technology and working on people's cell phones, even with the sophistication that the cell phones have to try to block it. >> and if you look at the federal level, what is the one or two things we can do to help you. >> there is a no-call working group that the feds have right now and all of the states that want to do that do and they stay abreast of the cutting-edge things available to you. so any help that we can receive, the senator mccaskell's bill that she is looking at that will help with this, those sort of things will be helpful. but i have to give credit to the feds for the assistance they give to the states as it is. >> miss blaze you are a tireless bulldog on this issue. and as you look at this, one of the things that has struck me is

when a caller i.d. coming up and displayed fbi. that means so many things to people in our country. and when you saw that i'm interested, how did you know that when you saw fbi that that was a scam? >> i didn't know when i saw fbi. i picked up the phone and answered the call and it did not take me 15 seconds to figure out it was a scam because the man said, well we're conducting this investigation and your name popped up. and i went -- and it was a drug investigation. and i said sure my name is going to pop up on a drug investigation. so i basically told him he was a fraud and hung up because that is the way i felt about it. of course i had second thoughts and i looked up the area code and it was a washington, d.c. area code and i thought oh, my goodness, what if i just screwed up and i called my local office and i said tell me about this

and they said it is totally a scam and you did the right the thing. >> if you had one or two recommendations for folks around the country, as you look, you've gone through a lot of this what would be the one or two things that you would most say to them -- here is what you really need to do when this kind of stuff starts? number one, not pick up the phone. >> do not press one. do not press two. don't do any of those things. if you cannot pick up the phone, then that is what you should do. but too many of us have to know what is on the other end of the line. i have friends who are private callers who want their phone numbers not to display. aupd don't know when you see private caller if that is your friend in new zealand or someone calling to scam you or try to sell you something. so you are tempted to at least pick up the unknown callers or private caller things just to

find out what it is. as soon as you know what it is hang it up. i from a friend who will not refuse to answer those. she will always pick up the phone, no matter how many times i tell her not too. >> thank you very much. and madam chair right on time. >> right indeed. you get a gold star. senator bloom an thall. >> thank you senator donnelly. you know, i served as toernl general and i battled against these scams and we look to the ftc because of its broader authority and we were members of a working group and so let me ask you first mostly sunny greeceman, can you give us some examples of alleged violations you couldn't pursue because of lack of authority?

>> what i would say in that regard, where we encountered challenges, it is presented by the common carrier exemption. there is a blurry line there. but the distinctions between care yerz and noncarriers can be very gray. >> is that an authority problem or an enforcement? >> it is a jurisdiction problem. we are precluded from the common carrier exemption i can't remember when it dates back to but it is part of the ftc statute. >> so there is a vacuum there that has to be filled. >> correct. >> and any other areas where your authority really has to be broadened to give you the enforcement jurisdiction? >> nothing readily comes to mind but let me think about that. >> i think that is the basis for legislative changes, to broaden

your authority so that enforcement can be more effective. because that authority essentially turns these violations into garden variety scams. they are dressed up in new technology, but they are basically scams con-artists using a different technology, and what you need is the resources and the authority to go after them. >> i agree. thank you. >> you mentioned assistant attorney general dundurand cutting-edge issues and can you give us an idea of what they are. >> i'm going to defer to them because i don't sit on the calls and i don't want to talk about something i'm not versed in so our no-call people on the calls could do that but i would not want to talk about something i'm

not versed in. >> what are you doing that is cutting-edge, miss kriesman? >> we have law enforcement and also discussing on the calls with our colleagues at the state level the different types of technology solutions we've been stimulating the market place to develop and discussing our efforts to work with the common carriers as i alluded to before to be more protect nif in anti-fraud efforts. >> do you have data on how often the do not call registry is abused? >> that is an interesting question. and i believe senator mccaskell referred to that earlier. to the best of my knowledge, we are not aware of telemarketers or others accessing the do not call registry in an improper manner. and in our law enforcement work and we've brought over 100 cases in the do not call provisions it is truly the exemption for any single telemarketers to have

accessed the registry. they are getting their call list from lead generators and other sources. >> and those other sources are ready illy available to them and they don't need to abuse the registry. >> that is correct. >> and i'll add to that. they can do sequential dialing through -- it is easy to find which area codes and exchanges designed and they can go through numbers one by one and occasionally they do try to target using a variety of publicly available lists as well. >> thank you. and i want to thank this panel for informative and helpful testimony and thank you madam chair for having the panel. i have 45 seconds left which i'll yield to senator kaine. >> we're never going to get over this. >> [ inaudible ]. >> thank you, madam chairman.

>> thank you very much. i'm going to ask one final question and then if everyone, including senator kaine wants to have one final question they're welcome to do so also. and it is for you miss graceman. you gave startling statistics in your testimony. you said at the end of 2009 the ftc received approximately 63,000 complaints about illegal robo-calls per month and now that number is up to 150,000 complaints per month. so that is an explosion of complaints. and i can tell you, most people don't call the ftc and register a complaint. they don't even know that is an option. so what do you do with those

150,000 complaints that you're getting? >> they are in credibly value for law enforcement and they are in a data base accessible to all of our state colleagues and federal colleagues. we mine the data. we generate targets from that data. so i cannot under emphasis how critical it is for consumers to file complaints with us. and i appreciate them. miss blaze has done just that. >> that is very helpful to know, because i think when consumers file complaints, they often wonder, was it worth it was anyone listening, did anything happen, is anyone going to get back to me. do you actually try to respond to the complaints? >> that is just not practicable. >> given the volume. >> given the volume it is not possible. >> but do you have -- when people put a complaint on your site do you have a list of tips

for them or advice for them to avoid becoming a victim? >> absolutely. when they file a complaint online, there are a lot of buttons that provide consumer education, business education and other tips on what to do. >> because i put out a seniors news letter that we put in area on aging and senior centers and we're thinking of having a clipout coupon that consumers can take with them or try using oorp -- aarp to put into people's homes so they know what to do because i think there are very few people who like miss blaze and really know what is going on. prior to looking into this matter if i had seen the irs or the fbi or the bangor maine

police department come up on my land line at home, you can bet i would answer that call. now i hope i would be able to discern that it was not legitimate at least i hope it wouldn't be legitimate, but for most people, that is a pretty scary name or number to see come up especially when it is the legitimate number. >> madam chair. >> yes. >> one thing we're also seeing and i'm sure you know this and it may have already been mentioned, we're seeing e-mails with fbi on there as well. >> interesting. >> telling you you have to contact them in regards to investigations that are take place involving you and such. >> well, one of my hopes is that our hearing today will help to heighten public awareness and it has been particularly value professor to learn from you that

the technology is out there. and to me that is the most important takeaway from this hearing today. and i think we need to push need to push the telephone companies to implement the technology in the name of consumer protection. and i'll be following the ftc's work with great interest in this area. >> while we were talking on try to file a complaint and pretty straightforward and there's a lot of good information when you go to the home page when you just put in ftc complaint. the one thing i don't find is please file a complaint because it helps us catch them. >> it's a very good point. >> you know i think miss blaze made a point you are barely, barely getting the tip of the iceberg in terms of these

complaints. and i think there are people out there like miss blaze who obviously, my favorite witness we've had like forever because i can tell, you're just my kind of woman. no nonsense, rack them up, let's get this thing solved. there are a lot of people out there like miss blaze who if they knew, that filing this complaint would help you find these guys and catch them, they would be much more interested in going through the process. and so, maybe on that front page where you have all the different options of learning about how to avoid robo calls, maybe we did a big banner by filing the complaint you help us catch them, it would increase the number of complaints. >> i think that's exactly right because i stopped filing them. i filed several and didn't hear a word back and nothing seemed to go away. so, i did not know the it was

making a difference, but if you tell me this is going to make a difference, i'll go right back to doing that. >> there you go. you might not need anybody else because miss blaze is back on it. thank you, mad dam chairman. >> senator kane. >> appreciate the chairman allowing me to ask an additional 15 questions. no, i don't have any other questions. thank you. >> thank you. i want to thank all of our witnesses today. this has been extremely illuminating and i think we can make a real difference here in helping the public to be more aware. i love the idea of your actually having an automatic response that goes to consumers who file complaints that tells them it is helpful to them. and i think that would help them feel that it was worthwhile even if it does not, if you're not

responding to their specific complaint. people like to feel they make a difference and this panel has certainly made a difference. >> this hearing is about to adjourn. if i could find my closing statement, which tells me how long the record is to be open. and i have it. i want to thank all of our witnesses and as you can see there's a great deal of interest by our excellent attendants. the committee members will have until friday, june 19th to submit any questions for the record or testimony. i want the thank the majority and minority staff for their work in putting today's hearing together. this concludes the hearing. thank you.

some news from capitol hill. earlier today, republican leaders announced that the house will vote on friday whether to give president obama trade promotion authority or fast track, that would affect a major trade deal with 11 other pacific rim nations. you can watch that live on friday. the house gaveling in at 9:00 a.m. eastern on cspan. the road to the white house about to get more crowded following a listening tour of the nation, hillary clinton will be officially kicking off her campaign saturday in new york city. you can watch it live at 11:00

a.m. eastern on cspan. and on monday, another hat being tossed into the gop presidential ring as former florida governor jeb bush officially announces his entry into the race. from miami, we'll have live coverage at 3:00 p.m. eastern. on tuesday it's donald trump's turn. he'll be announcing his presidential plans tuesday at 11:00 in new york city. watch that live at cspan.org. featured programs this weekend on the cspan networks. on book tv on cspan 2, saturday night at 10:00 p.m. eastern, kirsten powers says that although they were once its champion liberals are now against tolerance and free speech. on sunday night at 11:00, former deputy director of the cia on the successes and failures of

the agency's war on terror and its fight against al-qaeda and isis and on american history tv on cspan 3, saturday night at 9: 9:15 kevin mcmahon on nixon's supreme court appointments and the impact he had on the court and american politics. and sunday night at 6:00 on american artifacts, we visit the national museum of american history to view the newly restored murals from talladega college, depicting the slavery and its aftermath and the founding of the college. get our complete schedule at cspan.org. with live coverage of the u.s. house on cspan and senate, here, we compliment that coverage by showing you the most relevant congressional hearings and public affairs events and on weekends, cspan 3 is the home to american history tv with programs that tell our nation's history, including six unique

series. visiting battlefields and key events. american artifacts, touring museums and historic sights to discover what they reveal about america's past. history book shelf, the presidency, looking at the policies and legacies of our nation's commander in chief. top college professors delving into america's past and our new series, real america, featuring archiveal government films. created by the cable tv industry and funded by your local cable or satellite proprovider. follow us on twitter. the epa's waters of the u.s. or clean water rule was the focus of discussion at the environmental law institute earlier this month. the rule was finalized may 27th and expanding federal control of

land and watter resources. an official was among the panel of experts taking questions on the new rule. this runs about 90 minutes. >> hello, everybody, and welcome. >> yeah, they are all green. >> good afternoon everyone and welcome to the environmental law institute. i'm scott, the acting president of the institute and we're bringing you the discussion of recently released clean water rule. environmental professionals speak in acronyms, the phrase at the core of the this rule, waters of the united states is often referred to as wotus. many of us talk about it that way. the wotus rule was issued by the army corps of engineers and demarcates the federal jurisdiction for clean water act and this has a significant impact on the kinds of activities required to the obtain federal permits ranging

from land development that might impact wetlands to discharges into streams and rivers. we are bringing you a panel of top experts the today to explain the role. help place the role in context, discuss any remaining questions and explore the likely future for the role and i'm pack. this is part of the environmental law to make law work for better economic, social and environmental outcomes, through our research, education, convenings and publications we make environmental progress real but examining u.s. law like we are doing today and educating 2,000 judges in 25 countries or working with with partners to strengthen jordan's water management, liberia's timber management or implantation. our approach is strictly non-partisan and we believe by bringing all prospectives to the table, we can achieve better environmental results. the four professionals we bring you today are at the heart of the on going effort to clearly articulate the scope of federal jurisdiction over water protection.

sit a tough issue having made three high profile trips and one we're anxious to discuss. we'll ask ken and craig to provide an overview of the role and coal from industry and protectives will provide their thoughts and we'll leave 35 minutes for dialogue and discussion so please send in your questions and for those in the audience, use the microphone when ready to have a discussion. to start, we have ken who is department thety assistant administrator in the office of water in the u.s. water and environmental agency. prior to joining epa ken held several senior positions on the staffs of the house committee and infrastructure and environment and public works. thanks for joining us. >> thank you, scott and thank you to all of you and my fellow panelist. >> congress created the clean water act as congress defined as the waters of the united states while the territorial seas is defined in the act, waters of the united states is not. the clean water act has but what

definition of waters protected by all programs including those from discharges from cities and industry under section 402 permitting for the discharge of field material under section 404 and oil and hazardous waste under section 311 among others. all of these programs further the clean water acts to restore and maintain the chemical, physical and biological integrity of the nation's waters. congress left it to epa and the army to define the waters as united states. existing regulations defined waters of the united states as traditional waters interstate waters, all other waters that could affect interstate or foreign commerce, impoundments, tributaries and more. the definition of waters of the united states three times between 1985 and 2006.

in protection for 60% of the nation's streams and millions of acres of wet land haves been confusing and complex as a result of last two of those decisions. in 1985 the supreme court addressed the scope for the first time in a case which involved wetlands adjacent to traditional water. in a unanimous opinion, the supreme course talked about the integrated nature of the echo system and importance of adjacent wetlands to the echo system. the court observed that protecting aquatic i can sew systems for water moves and cycles and it is essential that discharge of -- then in 2001 the supreme court held non-applicable waters on interstate ponds by might tory birds was not in and of itself a sufficient basis under the clean water act and the agency stopped doing so immediately following

that. the court in 1985 also noted that it found that congress' concern for the protection of water quality in echo systems indicated the intent to regulate systems bound up with the waters of the united states and that it was the significant nexus between the wetlands and waters that informed the leading in the previous river said case in 1985. while the swank decision in the 2005 case did not invalidate the agency's regulations, it emphasized some type of relationship was necessary for jurisdiction. it also introduced the concept of significant nexus. in 2006, the supreme court considered the scope of waters of the united states in the joint decisions which involved wetlands, adjacent to non-applicable territories. while all members of the court agreed that the term waters of the united states encompasses waters including wetlands beyond those applicable in fact, the case yielded no majority opinion, the nine justices

managed to author five accept -- separate opinions as covering relativity permanent flowing bodies of water connected to traditional waters as well as wetlands with a continuous surface. the plurality noted the reference to relatively permanent did not quote necessarily exclude streams, rivers or lakes that might dry up in extraordinary circumstances such as drought closed quote or again quoting

seasonal rivers which contain continuous flow but no flow during dry months. justice kennedy in his concurring opinion concluded waters of the united states encompasses wetlands that are or were reasonably so made and quoted swank in support of that position. he stated wetlands possess the secrets significant nexus alone or in combination of similarly situated lands in the region affect the chemical, physically and biological integrity of covered waters, justice kennedy's opinion notes such a relationship must be more than speculative or insubstantial and neither the plurality or kennedy opinion invalidated any of the regulatory provisions to finding waters of the united states is we have three court cases, one

unanimously upheld the regulation and two that did not address it so why do we do a rule? so we did the rule because the confusion and uncertainty stemming from the last two support cases created a request for over the last ten years in the army core to under take a rule making to provide clarity on what waters are protected by the clean water act. and there was a lot of confusion, recall i mentioned that there were five opinions from nine justices that were confused and did not agree. request came from both parties, both chambers, state and local agency officials, industry, agriculture, resource ex traction, environmental and conservation groups, developers and builders, scientists and the general public. secondly, one in three americans rely on seasonal or streams for their drinking water and they

are not clearly protected today. and third, many states have limitations on their ability to fill the gap and protect waters no longer covered by the federal clean water act after swank and repanos. it was a study in 2013 that concluded about a little over 2/3rds of the states have laws that could restrict authority to regulate waters affecting streams, wet lands and other waters not protected by the clean water act and while some state restrictions are easier to overcome than others, the record has been the states are not taking action. what does the rule do? the clean water rule protects streams and wet lands that are scientifically shown to have the greatest impact on down stream water quality and form the foundation of our nation's water resources. epa and army are ensuring that waters protected under the clean water act are more precisely defined and easier for business

and industry to understand and consistent with the will you and the latest science. the clean water rule creates eight categories of jurisdiction l waters, subject to definitions and limits in the rule and two categories that is subject to a nexus analysis and then repeated, the clean water rule continues jurisdiction for traditionally navigating waters and impoundments. what did change? the clean water rule clearly defines, remember the clean water act protects with thor ways and their non-transcribe a physical feature of water in bed and banks and unordinary high the water mark, the rule provides protection for head waters that have features and side shows can have a significant connection to and effect on the down stream waters, rule provides certainty. rule protects waters that are next to rivers, lakes and their transcribe tarries but for the first time, the rule sets boundaries on covering nearby

waters that are physical and measurable. those are the six areas considered jurisdiction by rule. i want to emphasize today under the current rule there is a case specific analysis based on determining whether there is an effect on interstate commerce and there when there is a significant connection between an upstream water and down stream water and whether there is an ability to have a significant effect from upstream to down stream. science shows that specific water features can function like a system and i'm pack the health of down stream waters, so the first waters subject to a significant nexus analysis are five regional waters that we identified in the rule. the prairie the to holes, carolina bays, western pools in california and texas coastal prairie wetlands when they impact down strep waters, in

determining, the functions will be evaluated as a system. in their watershed but still be subject to the a significant nexus analysis. the second category of water subject ocho the a significant nexus analysis, those within the 100-year flood plane of a water, interstate water of territorial seas as well as waters with a significant nexus within 4,000 feet of the jurisdiction waters and fewer case specific analysis, the rule focuses on streams, not ditches or function like streams and can carry pollution down stream so a ditch av#çó no construct in a stream and flows only when it rains is in the covered. the new rule maintains the

status quo for municipal ms 4s. we do not change how those waters are treated and encourage the coming use of green infrastructure. as i said, we reduced the number of case specific analysis required. today almost any water in america could be put through lengthy case specific analysis if it would not be subject to the clean water act. the rule significantly limits the use of case specific analysis by limiting the number of similarly situated waters, rule maintains and expands exclusions from waste treatment systems and crop land but adds three types of ditches ground water, gullies, reels and non-we land swells to the list as excluded and excludes

constructed components from separate storm sewers and water erosion l features. finally, other constructed features such as stock ponds and cooling ponds and pertinences are excluded, the rule protects waters that have historically been covered by the clean water act. it does not address land use, it protects water. it does not regulate ground water, shallow surface flows. in the end, we have a rule that is based on solid science. it aligns with the supreme court decisions. it is based on the experience and expertise of epa and the army. and it strengthens the clean water act for the benefit of the american people. thank you. >> thank you so much, ken, we really appreciate it. next we'll hear from deputy general counsel and silver works

and in this position, craig provides legal advice to other secretary officials on matters involving army instillations, lands and facilities and environmental law, protection of wet lands and legal issues relating to the u.s. army core of engineers and regulatory programs. craig spent his career in the army legal service and he survived the river crossing to make it here with us today. >> i was saying on the train over here, one thing we probably need as much as clean water is a reliable metro. anyway, first of all, let me thank scott and the entire team for arranging today's seminar and welcome everybody that's here both in person and on the phone this afternoon. the the today's seminar is particularly timely and essential. i say essential because it is so critical for everyone whether you're an opponent of the rule or supporter of the rule to have

a solid understanding on what the rule does and doesn't do. i've been up, we were up on the hill earlier mid last woke, both on the senate side and house side and did this for both the preamble and did it for the 2008 guidance and it always alarms me of folks with a strong opinion of the rule but don't really understand the rule and that's a sad state but the rule isn't very long. ken did an excellent analysis of running you through the major steps we've coordinated and i'm not going to repeat i, i'll keep my comments pretty tight. but let me be clear, on behalf of the army, we truly believe the that the this rule is good for the nation and timely and relevant and needed to restore and maintain the words are important one of the most vital

resources and that's an abundance of clean water. in preparing for today's seminar, i came across and we talked about this on friday, we put a rule nobody was supposed to quote law review articles but i came across a research paper, not a law review article written by professor william mines. in 2012, that was pretty timely and the article, which i commend anybody who has an interest in the clean water act and particularly timely for what we're here to talk about today, his article or paper was entitled history of the 1972 clean water act. how the act became the capstone on a decade of extraordinary environmental reform and he observes this is in 2012, he says that many kerr renl issue haves a familiar ring to them and i won't bore you with specifics but lists several of

them in his paper and i will say almost each and every one of them has been on the forefront of our discussion here in 2013, '14 and '15 as we approach the rule and he notes collectly i might add that these same themes were debated 40 years ago and are still relevant today and this is so because the need to protect our streams and rivers, our wetlands and our lakes is just as important today as it was back in 1972. the other thing i found particularly interesting and not being a historian on the clean water act or an expert in the clean water act, i found that in 1972 and '87 amendment, there was significant political controversy associated with the cheap water act itself and 1987 amendment but the nation's desire for clean water overshadowed the other issues and the law was passed and then again in '87 the amendments were

passed. the army is a proud partner of the rule that we'll discuss this afternoon, a full and equal partner, the army participated at every stage, every critical stage of this rules development. my client and colleague assistant secretary for civil works said this is a generational rule, it completes another chapter in the history of the clean the water act, and that, those words ring loud and clear and they are so truthful. you know, where the act is

almost 40 years old and the current rules that are, this new rule once i goes into effect change over 30 years old. a long time has passed and as ken laid out for us a lot has happened in those 30 years, the current rules were written before the science was known. it's based in large measure on constitutional principles involving the lawful reach of the commerce clause and yet in many instances as ken, again, just eluded to, we left unaltered many of the rules that are in the 1970 era regulations announced here on may 27th and i cannot emphasize the importance of understanding again what was

changed and what was not changed when we went into the rule, we had three fundamental goals in mind and i believe i think ken would agree with me that we have a accomplished the goals we set out to do in the rule making exercise, one was the rule was to make commonsense changes. this is not a fundamental swing in rule making or the state of law in the clean water but it makes very important common sense changes that will benefit both the water resource as well as our economy, as we said on the hill, i would ask everybody

to lay the 1970 verses of the rule on and look carefully at i and tell me at the end that you don't see greater clarity in the new set of rules. the one thing that the old set of rules failed to do was to provide the requisite clarity that the regulators the professionals out in the field and the mud and water each and every day have set of rules they can say with certainty that a water is or is not jurisdiction l and thirdly, the rule in several important areas based off of those supreme court decisions that ken eluded to, this rule establishes a requisite level of certainty that did not exist before and these are in the bright lines that we'll probably get into a the little more here shortly, the changes that were made were are and were science based consistent with the decisions in swank and probably equally as important and they are with

responsive to the public and stake hold comments we received, it's widely known we received over 1.3 comments on the rule. many of them with particular views in point. we in proposing the announcing the proposed rule and preamble, we sought public comments. we went out and we actually got comments and again if you lay the proposed rule down alongside of the final rule, you cannot, it cannot go mistaken that that rule changed and changed fundamentally. the rule clearly defines for first time what is jurisdiction l and equally as important, what is the no jurisdiction l in

section b of the rule. and then of course itch ming the rule are now defined with much greater clarity in section c of rule. in the preamble we put a provision in the rule that we believe is both reasonable and responsible to help transition from the old rule to the new rule a any point in time the core has a substantial amount of requests and permits in the queue. they are in multiple stages of completeness, and so what we did in the rule was we established a grandfathering provision that we think will make for an efficient rule, essentially it goes like this is the that as of the date

the rule goes into the federal register, the core's district commanders can make a determination if a rule is deemed to be complete on that day, doesn't have to be made on that day but if the district engineer looking on the date whenever that goes into the federal register that a file for a jd or applicant is complete then that rule will be allowed to be proceed and decided upon under the existing rule. not with standing the fact i may

come out after the date of rule unless the applicant wishes to come in under the new rule they can ask that the decision be held until after the effective date. once the rule goes into effect, any decisions thereafter except for the ones just deemed to be complete and process out, those new applications and decisions will be rendered under the new rule. so the core is going to officially implement the rules, training is already taking place. we're anxious to get started with that scott, i will turn it over back over to you. >> thanks, craig. before we go over to dedra and john, can you explain briefly what the army's role is in the section and why the army is at table and why you were so involved? >> sure, the core implements one

of the key sections in the clean water and that's the 404 section, the material is a poll -- polluting and why the core is involved going back to 18 99 and basically remove sunken vessels and debris so traffic can get up and down the rivers. but the core implements section 404 of the clean water act. it's one of the provisions unlike the 402 program where you're talking about discharge. the 404 permit program is so critical and i'm sure deidra will talk about this because it interfaces with development of lands, lands that may be wet or we lands on a particular property that someone wants to do something with and they need a core permit to either enter

into those waters, fill those waters, dredge those waters, drain those waters of the like and that's a lot of those waters as we know are all over country and the core has great visibility on its 404 permit program, so. >> thank you, craig. some of you will hear us talk about jurisdiction determinations and someone says i got this piece of property, do i need to get a permit for? >> correct, they come into the core seeking a jurisdiction determination of which there are two types, one is a preliminary and the other is approved jurisdiction and essentially if the you come in and it's none binding type of determination

and essentially for the most part the applicant just says well let's assume it's jurisdiction, what will i need and a permit is authorized more or less on the assumption the land is jurisdiction. someone wants to buy a piece of property or invest on a piece of property, one that they can perhaps challenge in court or otherwise would come in and seek approved jurisdiction and takes a significant amount of time in preparing administrative record to prove jd has an appeal process and many of them often times end up in litigation. thank you. >> thank you, craig. i want to make sure we're on the same page. deidra duncan that represents major parties and her experience includes negotiating and obtaining permits for projects,

counseling clients on administrative rule making and policy and regulatory clarifications and drafting federal and state legislation. prior to entering private practice, she served as general clean water acts section 404 regulatory program. the thanks for coming today. >> thank you, scott and thank you for inviting me to speak today. i think i am the only person on this panel who is actually been involved in obtaining jurisdiction determinations both as a regulator when i was at the army and now in pry i have practice on behalf of regulated entities, from my perspective, this rule unfortunately, fails to provide the public the clarity it's been asking for. i fails to provide meaningful limits on federal jurisdiction and it will be incredibly difficult to implement this rule for regulators, especially the core of engineers and i'll explain why i'm saying these things.

first, the rules transcribe -- definition is unchanged and maybe broader. there really were no substantive changes made to the tributariry definition itself even though many common ters urge that the definition be narrowed or at a minimum clarified. the definition relies on high water mark but for over 20 years, the public told agencies in comment after comment that using the ordinary high water mark standard is very problematic. instead, the agencies continue to use this term and in fact state that they can use evidence of historic conditions to document an ordinary high water mark. indeed, even justice kennedy in the decision emphasized that the ordinary that ary high water mark standard is problematic, he stated the breath of the ordinary high water mark standard, which seems to leave

wide room for regulation of drains, ditches and streams remote from water and carrying only minor water volumes toward it precludes it's adoption. the agency's use of the problematic term makes almost every other part problem mat tick as other categories and exclusions from jurisdiction are tied to to this broad standard. for example, many of the threshold distances which we've heard about for adjacent waters and case specific other waters are measured from the ordinary high water mark. and given the pervasiveness of ordinary high water marks on the landscape, it will become almost impossible to fall behind these distances more over, if a the water is outside, i can still be regulated as long as it's in within 4,000 feet of an ordinary high water mark. these limits are even less meaningful in light of the agency's position if any force of a feature is within the limits of the distance threshold, the entire feature is jurisdictional, but erosional

features are excluded but only if they lack a bed and bank and ordinary high water mark. so it's kind of circular and in practice going to be very difficult and not helpful. similarly, a ditches are excluded unless they were excavated in a transcribe tarry, in other words, unless you can prove there wasn't an ordinary high water mark there on a landscape that could have occur add long time ago. ultimately, what is the difference between a femeral ditch, stream, you guessed it. comes back to the ordinary high water mark and concerns with key exclusions. for example, exclusions for waste treatment systems, storm water systems, artificial ponds and water filled depressions are all tied to having the feature created in dry land.

you have to prove at the time of the feature's construction in 1910 it was created in dry land and importantly the agencies specifically state there is quote no agreed on definition of dry land. given this ambiguity, it fails to provide clear exclusions, on site industrial waters and storm

water systems, the aim of the rule was to provide clarity and make jurisdictional regulated public and regulators but all of rules vague and complicated definitions , it will be difficult for the public and local regulators to implement. just to close by illustrating how complicated it will be i wanted to read an example given by the agencies, the agencies state that quote under category a 8 for example, the agencies would evaluate on a case specific basis whether a low centered tundra and the pattern ground bog in an area with a

small flood plane and beyond the 1500 foot boundary and the traditional navigating water or territorial seas or within the 4,000 foot boundary or a we land in which normal farming or ranching activities occur as those terms were used in section 404 and implementing regulations had a significant nexus, you tell me if that will make jurisdictional determination simpler? >> thank you. appreciate you being here today. next we'll turn to john divine, he's an attorney in the defense counsel. john leads a clean water solutions team where his work focuses on implementing, defending and strengthening core the water act programs, prior to joining, he was in the office of general counsel and prior to law school, he was an environmental protection specialist. john, thanks for coming over.

>> thank you, scott and thank y'all for including me in today's session. in general, we at nrdc view the clean water rule as a major step forward and we're grateful to the obama administration and the people in the agencies like ken and craig who not only had to wade through a mountain of scientific and public input on the rule but also whether baseless claims of being power mad, bureaucrats and bent on destroying the american economy. i imagine most folks here would be able to predict my reaction to specific parts of rule given that my view is that the supreme court did not mandate anything close to a major entrenchment on the scope of the clean water act and give than our review of the evidence leads us to conclude that all sorts of water resources are important to the overall integrity of the aquatic system. we're supportive of the aspects of the rule that guarantee

protections the that the science shows are critical, transcribe tarries and most nearby waters. we had hoped for more certain protection for other water bodies but the rule leaves many of those decisions to a later evaluation of the watershed level of the i'm packs to down stream resources. we believe that the proper application of this analysis will lead to waters protection, but we think it will require us to be sure. on the other hand, we were disappointed but those areas where the agencies excluded features, category from the law. especially in those instances where the agencies experts science advisors urged them not to provide category exceptions. we strong to protect so-called isolated waters where it showed they were significant as a category. as well as certain man made

tributes but the final law exempts a number of those features out right. on balance, though, we think the benefits of restoring guaranteed protections to the waters at the core of this roll is a major improvement. it assures protection for the kinds of streams that provide supply for the drinking water, providers for one in three americans to see nothing of the wetlands that prevent flooding, support all manner of wildlife. so thank you for having me. >> thank you, john, apriest yeah it very much, we have a number of questions, i'll allow the

panelist to ask questions and pose questions to each other. i'll get us started, if you in the audience have questions, let us know and we'll get a mic to you. there were comments tributaries. >> what did the science tell us of impacts on upstream waters and down stream waters and from a standpoint waters are connected but also know that the court has made it clear that the clean water act is not apply to the water simply because it's connected from an upstream to a downstream water. we wanted to focus on where the connection was significant such that there can be a significant effect on the downstream water from the pollution or destruction of the upstream water. we know that the science indicates that those effects have to be measured but they

have been able to find an indication of sufficient flow for water to get from the upstream area to the downstream area. that is why we use the concepts of bed and banks and ordinary high water mark. we also understand that the concept of an ordinary high water mark is something that has to have some regional variability to it, simply because it is a physical feature and it will not appear exactly the same everywhere in the country. we have a history of working in this area and will continue to work in this area. we think that by adding physical characteric characteristics characteristics, that we've in fact made it more clear. we've taken some of the guess work out. we know that while diedra has raised the question of how do you tell if there's ordinary high water mark or bed and banks. we have for the first time put in a rule of requirement that those things be present and we will continue to work so that

the public has an understanding and the regulators have an understanding of what's intended by using those futures. we think that those are important components over the existing rule. i also if i could very briefly comment on some of the exclusions that are in the rule obviously many of those are carried forward from premble language so the agencies have practice. i would speculate that the regulated public has practice in how they work and some of them even like for example the waste treatment exclusion that was mentioned we carried forward unchanged, so if there are questions going forward as to what the new rule is going to mean, they are the exact same questions that have existed since the 1980s when it was first put in the rule. >> thank you.

>> craig, how do people who are facing this and needing to make their own determination, the idea of the rule was to he people take a look and get a sense if they were included or excluded. does the core have documents to consult to understand what an ordinary high water mark looks like and guidance put out in the future helping to explain what this rule means or look at the 200-page long preamble of the rule? would folks do? >> thanks, scott. core has, the core regulators have lots of tools available to them to include manual that they use. i don't, i don't think it's as hard to identify an ordinary high water mark as deidra would attest to. the industry knows again, the one thing that in the definition i would point out that wasn't identified in deidra's comments,

not with standing you have an ordinary high water mark with a bed bank and a physical indicator of a bed bank and ordinary high water mark that i has to be of a sufficient type that contributes flow to one of the waters that are navigable, these are things that are fairly readily evident and ken says in certain types of parts of the country, they are different, they are different appearing but i don't believe that they are that difficult to core regulators are certain types of the country, they're different. different appearing, but i don't believe that they're that difficult. core regulators are well prepared, these are experts. people who are experienced in these matters. they use all the tools available to them. and they do discuss that with

the applicant. they go out, do site visits. and so it's not that difficult to find an ordinary high water mark. >> if i could just add something to that. the agencies existing definition, the one that is being changed, just protects tributaries without elaboration. this provides further definition as to what that involves and candidly and in some ways, that we had urged the agencies not to go. in the proposal for instance, wetlands and ponds that act as tributaries tributaries, that are the source of water for downstream streams could have been considered trip tears under the rule and protected as suf. the agencies opted in the final rule not to do that, because

those features typically don't have an ordinarily high water mark. and so, that's among the ways that that -- stronger, was not the choice of agencies decided necessary to a regulated public. >> for any comments on what -- >> comment a bit and say that to claim that the science supports the ordinary high water mark, i think is a bit disingenerous. i don't think the epa report, the connectivity report examined the concept of ordinary high water mark at all. so, you know, i'll leave that. two, i think that as craig said, it's not hard to find an

ordinary high water mark. almost anywhere. if water has passed at some point in time, over the the landscape, they have pervasive. i'm not saying it's hard to find them. i'm saying it's not a reliable indicator of sufficient flow. which is why the science should have looked at the concept of ordinary high water mark and i think if the public comments where people actually were thoughtful in what was reviewed carefully, which i assume they were, i think the agencies would have seen that a lot of people gave a lot of thought and comment on the term ordinary high water mark being highly problematic. that's my perspective on ordinary high water mark.

with respect to the exclusions remaining largely unchanged, that may be the case. but the real problem is that the definitions have not remained unchanged. tib tear now has a broad definition. ditch, manmade conveyances and an explicit way and there's a new category of waters adjacent waters and waters are broadly defined, so that's why i think a lot of comments raised concerns about these exclusions maybe not being as clear because you now have these very broad other categories that weren't in the existing regulations before. >> thank you. i saw a question in the audience. let's start. >> thank you. my name's owen, i'm with the

national association of homebuilders. i want to step away from tributary for a second and actually explore the eighth category of waters. these are those that are within the 100-year floodplain or within 1,000 feet provided they have a significant nexus to a one through three water. i'm going to go through a scenario here and ekxplore the quote common sense. so, to really understand this we have to understand two terms. significant nexus explore the science of the common sense behind the 4,000 feet. significant nexus, i just want to pull out two examples of what could in and of themselves prove that a water has a significant nexus. this is in the cfr language for the final rule.

i'm sorry, e would be run off storage and f would be contributional flow. so if a water stores run off, it would have a significant nexus or if it contributes flow. so, the waters can function as a source of a sink, they can do one of the other. effectively, if you either contribute flow or store flow or water, you have a significant nexus. and secondly, we need to explore this concept 1,000 feet of one through five water and i'd like point to make sure the epa's economic analysis that says, quote, the agent agencies have determined that the vast majority of the features are located within 4,000 feet of a covered tributary traditionally navigable water, interstate water or territorial sea. we believe therefore that few waters will be located outside

4,000 feet of the 100-year floodplain. so, in other words, it's nearly impossible to find a water. that would not be subject to a significant nexus test. and again, this is if to have a water not close to a significant nexus and you would have to store or contribute water and wouldn't that be all water and that is the context and science used to provide clarity under this final rule? >> greg do you want to start in. >> well there is a lot there. let's start with the -- let's start with the -- these are isolated waters, we're talking. >> that is the channel that is referred to yes. >> so explain to me again what the first part of your concern is so that i can address it specifically, about storing and

contributing flow. >> sure. can you name for me a water that either would not store, runoff or contribute flow? >> first of all, you can have both but they may not have a significant enough of a nexus due to their -- their distance. they could be at the outer end of the 100 year floodplain. >> i would agree with that but a significant nexus -- a function of a water that has a significant nexus is defined in the final rule is defined as one of those functions. >> you are talking about the eight or nine functions. >> yes. >> if i could -- oh and thanks for allowing i think for clarification on. this as you pointed out, we listed functions under the significant nexus test and that

was in response to the var fuss public meetings that we held, the agency held over 400 public meetings and i think you personally participated in more than one but we received in excessive a million comments. and in answer to your question, yes, they all were looked at. but -- and considered. but i think what we -- so what we heard was you've said significant nexus in the proposal. we did a pretty good job of prepeting what justice kennedy had said in his concurring opinion but people said that didn't provide enough meat on the bones, if you will. could you not look at other ways to better quantify whatyuç is a significant nexus. and what the agencies did was we heard a lot of can you take

these qualitative concepts and turn them into quantitative concepts and we looked at a way to define significant nexus and flow and should it be x number of feet per second and at what time of year per average and is there a way to do something that was measurable. is there a -- so we looked at that. and we determined that the science did not support that. that we could not come up with a series of quantitative ways to measure what was significant but thought what we could do is be more transparent in the final rule about what the functions were the agencies could consider in doing a significant nexus nauls -- analysis and that is what you see in the final rule. and i believe we have tried to make it clear and if we haven't we will continue to make it more clear that these ro functions --

are functions that will be considered more clear but the single presence does not make it jurisdictional. as craig said, it has to have a significant effect. you are probably correct in terms of looking it either contributes or holds flow. that is the entire universe. that is the yes and and the -- and the no. but we do know different water features provide those functions and their significance can depend very much on which of those it is. in fact, justice kennedy in his opinion even said that sometimes it is the lack of a connection that provides the significance. and some regence -- regions of the country the pothole region is a good indicator of that. and i know i've gotten long on the answer and i have acknowledged your question but the agencies will not look at the list and say if i can find one of those, boom, you're in. the agencies will have to find

that -- and we believe this is explained in the preamble it can be a single one of those functions but it would have to really be much more significant and robust if you are relying on one function. it could we a combination of functions but you are still looking for something with some significance. if you can find a scintilla of evidence that that would get you over the threshold. i hope that helps you answer. >> it does. can you explain where the 4,000 foot bright line quote unquote, came from. >> well, again, we were trying to be responsive. people had said when we introduce the definitions and associated with adjacency in the proposal, people said could you draw more bright lines, could you be clear. if you recall, we had proposed to use floodplain or repair in the area to define adjacency and we were told that first of all

people were not comfortable with us using the term repairing area because they felt it was too exact and ill defined and we heeded that and we did not articulate a floodplain because of the variability of the size and the inact nature of the floodplains that are known out there. and we were -- we heard overwhelmingly in the public meetings in our comments that would you pick a floodplain and work off of that. we remained concerned about -- about establishing adjacency jurisdiction in a floodplain when the floodplain could be very large in certain areas of the country. so we then looked at ways to translate what is effectively an in act science into something ---in exact science into something more predictable

and clear on its face and relying on the science and the expertise of the two agencies as to where we felt you were likely or not likely to find a water with a significant nexus, we then spent some considerable time figuring out whether there was a place for us to land knowing that once we draw a line, we're going to create something inside something and outside and it is not going to be perfect but we think it is largely substantiated by the evidence we have in our record and over the many years of the agency's work in this program. >> and i just want to make sure for everybody's benefit that for the most part we believe that -- that the 4,000 foot will cover the 100 year floodplain. in certain large river systems the 100 year floodplain may be on the outside of the 4,000 foot but in most cases particularly

not in the smaller rivers that the 4,000 foot limit is the outir limit -- outer limit of the floodplain. >> thanks, craig. we have a question online and then move up front. please notice the strum water control features. the skplugs features seem quite low. please explain the control features not on dry land and is there any more explanation on what dry land as deidre referred to. sure. thanks for that question. when we set out this rule we intended not to effect the jurisdictional status of water featured inside a ms 4. we heard from working with working with communities around the country, the permitted entities, that there were concerns we may have effected the clean water jurisdiction of these permitted entities and the

reason for that was unlike most 402 permits which are a pipe or a ditch or something like that, while a municipality does have outfalls, they are also permitted on a geography basis. and fock example the district of columbia storm water covered the district of columbia and you have storm water carriers caring the storm water and part of the storm sewer system. and for example we have well-known rock creek carries storm water when it rains. so the idea that the communities raised with us was, are you saying that the rock creek for example, because it is a jurisdictional tributary to the potomac, it is a jurisdictional water in and of itself such that the storm water has to be treated before it got into rock

creek even though rock creek is part of the over all system that controlled storm water in the district of columbia. and so the exclusions that we put in were designed to address the -- the ability for communities to look at their totality of their storm system and look at things such as retention ponds, green infrastructure components and those kind of things being built as part of the system and make sure we were not bringing all of those things into this -- into the permitted 402 system. and that is what that is about. and we believe we've retained the status quo so that water features that are within the geographic bounds of a community that is permitted under the ms 4 program if thur jurisdictional today they will stay