used for cleanup phases y. understand his concerns and i would like to remind the inspector general that the contracts for migration and clean up have not yet been awarded. where we would like to have further discussion with the inspector general is the practical timeline for major i.t. business case. he is suggesting that we move that out into fiscal year 2017. i would like to move that much quicker given what we have already experienced. i assure the inspector general and everyone here that all of our decisions are being tracked, documented and justified. he has made a number of recommendations regarding contracting and standards that rely on external sources for assistance and i believe that the federal government and the good work that tony scott is providing to us and all of our

partners in government have strong solutions to offer. i'm going to look forward to talking more to him about his suggestion. >> have you had a chance to look at other agencies that have had successful i.t. projects to use as a model to have some sources of valuable insight as to how to manage multi phase critical i.t. projects. have you looked at having an outside contractor managing the project might achieve some of your goal? >> we are looking at all of our options certainly. this is a very serious issue and i'm taking it very seriously and looking to all of the resources that i have available to me. and i will certainly do that. i believe that the federal cio is an important asset to us as is partners at dhs, nsa and fbi. we are looking to those and i welcome the inspector general's

suggestions. as i move forward through this process i will be listening to him carefully as well as my partners across government. >> i appreciate that response. mr. spires you were the former cio at dhs and irs both of which have had very cumbersome, expensive, difficult challenged i.t. projects. were you able to turn around sort of legacy i.t. failures? and what advice to you have for opm? >> it is always a team effort. i joined the irs and took over the business systems modernization program. at that time it was on the high risk list. i'm pleased to say as a team effort we were able to improve our processes to the point where

recently that program was removed from the high risk list which is quite an accomplishment. let me just say that i have reviewed many programs and there are -- we could have a long discussion about how to appropriately manage i.t. programs. i make a couple of points very quickly. one thing that is very critical is the overall governance framework that you put in place that you need to get the right stakeholders in the room to work together to make this happen. all too often in government i have seen issues where that does not happen. the other thing i would say is don't overrely on contractors. you need to have a program management office of government officials with the requisite experience and skill set to be able to run these programs. i would say i'm not picking on opm. i have found that smaller agencies i think struggle more with this because they don't have the heritage of having learned those lessons within the

agencies themselves. >> thank you. i see my time has expired. thank you for your testimony today. grateful for the input and for your offer to continue to consult with us and work with us as we move forward to try to offer critically needed reassurances and to find timely and cost effective solutions to this. >> thank you very much. mr. spires based upon what you have heard today your knowledge just generally of government agencies and their cyber security issues, is this a management issue or is this a resource issue? >> it's more of a management issue, sir. >> why do you say that? >> because the nature of the way i.t. has been run in a lot of agencies there are so many

inefficiencies that i don't believe we effectively spend the i.t. dollars that we receive. so i believe that with the proper drive towards management you can actually drive a lot of savings from the existing budgets. but caveat that. when you are talking about new modernization programs sometimes with the right business case it does make sense to invest in those. >> i assume based on your response i assume there is a natural inclination when these issues arise that the easy thing to do is to hire a contractor. within the agency we don't know this stuff. this isn't our primary mission and let's get somebody here to take care of this. we have worked on this committee when senator udall was the chairman we worked on issues to improve the role cio's play in an agency in part trying to

compensate for i think an attitude that we are not tech folks, somebody else is responsible for that. describe how you work with your cio. the breach that you are aware of goes to june 2014. as i recall you and others testified in may of 2014 and the following month june, opm became aware of a breach. >> let me just -- the first breach that we discussed with you was -- >> i don't think you discussed this in may. if you knew about it i don't think we knew about it. >> i want to make sure i have my months right. on march of 2014 was when we identified some activity.

but there was no pii lost in that. in june of 2014 which was what you may be referring to is when usis was breached and that there was opm data that was compromised that impacted about 2.6 thousand individuals. in august of 2014 the key point government solutions which i described earlier their activity, they were breached and that breach compromised approximately 49,000 individuals. and then in april of 2015 was the breach that i have described earlier as well as the one in may. >> so there were three breaches that occurred prior to the two we are now talking about? >> there was the opm network in

march, june of 2014 and august key point. >> so what was your -- what changed at opm -- you became aware on three occasions someone is trying to intrude on your system. what did opm do? >> if i can go back a little bit because i want to reassure you to my colleague's point that the first actions i took as opm director was -- the other second action was to develop an i.t. strategic plan exactly the things my colleague describes. so i.t. leadership, my cio, i.t. governance must buy into theq

design and the structure of the i.t. plan and development. and i.t. architecture, what was it going to take for us to build out the systems. i.t. data we needed to be informed and needed to know that what we were doing is right and that we were doing this in a way that was analytical. we had as an important pillar i.t. security. obviously very very important as we were building out even as we were working on our strategic plan one of the most important pillars was i.t. security. and since dona seymour came in and because of her experience and the experience that we have in government we brought her from d.o.d. and d.o.t. that she was able to apply those skills and that talent to identify not only what our strategic steps are but how we can begin to develop them. the first thing we needed to look at was what we could place

on the legacy system and what it would take to do that. and that is where she has begun and what she continues to do throughout her tenure. >> your point is from not following the three breaches but from your arrival your priority was to get a cio and begin implementation of a plan? >> i will tell you from the first time i was briefed on our i.t. infrastructure during my confirmation preparation i knew that there was a problem. and that is why my confirmation hearing i said it would be a top priority and i promised your colleagues that i would develop an i.t. strategic plan which i did and produced within the first 100 days. i was also wise enough to hire donna seymour. >> the i.t. strategic plan is that something we could see? >> absolutely. it is on our website. i will make sure you get a hard copy as soon as possible.

>> let me see if i have additional follow up. is there a new plan as a result of just implementing this one? >> as you know a plan is dynamic. as we learn things a plan changes. we are following it and making sure that every component, governance, leadership, making sure that we are making sound decisions on the architecture that we are building and making sure it is based on clear analytics and that cyber security is an important component of all of that. >> are there benchmarks in place within that plan that we see whether we are making the progress benchmark by benchmark? >> i would like to come back to you and show you what those benchmarks are, sir. >> let me ask about notification. you indicated in your testimony and i wrote this down as well as

soon as practicalable. i understand the value of that phrase. the president's proposed legislation for notification to occur within 30 days of a breach how do you think practicable fits with 30-day requirement? >> i think within that proposed legislation as practicable is also included in there. we are trying to do everything we can to come as close to that date as we possibly can. >> is there anyone who oversees i.t. security outside of opm? what is the relationship between omb? >> we work closely with the federal cio who has responsibility for this, tony scott. he has been at omb for about 90 days now. he has been engaged with us from the very beginning and he and donna have a very strong relationship and he has a strong advisory role to us. >> prior to his arrival 90 days

ago was someone filling that responsibility, as well? >> i don't know that sir. i would be glad to get that information back to you. >> thank you very much. >> thank you, sir. >> thank you senator. thank all of y'all for being here. i apologize for the earlier delay. this is such an important hearing. i think this is probably one of the most important hearings that we will have this year and we will be following up in the not too distant future making sure things are moving in the right direction. i want to thank all of you for participating. i want to thank my staff for the excellent job that they did in preparing for the hearing. this time i ask unanimous consent that statements by the national treasury employees union and american federal government employees be included in the record. if there are no further questions the hearing record

will remain open until next tuesday, june 30 at noon for subcommittee members to submit any statements or questions to the witnesses for the record. for that the subcommittee hearing is adjourned.

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if you missed this hearing you can watch it online at c-span's video library. we will be back on capitol hill for a hearing on new epa greenhouse gas regulations as outlined in the clean power plan. the senate environment and public works subcommittee will look at how proposed regulations will effect energy. like many of us first families take vacation time and like presidents and first ladies a good read can be the perfect companion for your summer journeys. what better book than one that peers inside the personal life of every first lady in american

history. "first ladies presidential historians on the lives of 45 iconic american women." a great summer time read available from public affairs as a hard cover or e-book through your favorite book store or online book seller. next a discussion about the epa's waters of the u.s. or clean water rule from a recent discussion hosted by the environmental law institute in washington, d.c. the rule was finalized on may 27. it expands federal control of land and water resources. hello 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 rule and its impact. 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 environmental progress real whether examineing u.s. law, by educating over 2,000 judges in 22 countries or working with partners to strengthen jordan's water management liberia's timber management. our approach is strictly nonpartisan we believe by bringing all perspectives to the table we can achieve better environmental results. the professionals we bring you today are at the heart of the ongoing effort to clearly articulate the. it is a tough issue having made three high-profile trips to the supreme court and one we're anxious to discuss. we'll start by asking agency representatives ken kopocis and jon devine will provide their

thoughts. we'll leave at least 45 minutes for dialogue and discussion so please send in your questions on the webinar and for those in the audience, please use the microphone when we're 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 on transportation and infrastructure and the senate committee on environmental and public works. ken, thank you so much for joining us. >> thank you scott, and thank you to all of miami fellow panelists. congress created the clean water act to protect navigable waters which congress defined as the waters of the united states including the territorial seas. 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 of its programs including those from discharges, from cities and industry, under

section 402 permitting for the discharge of field and discharged material under section 404 and oil and hazardous waste under section 311, among others. all of these programs further the clean water act's stated objective, to restore maintain the chemical physical and biological integrity of the nation's waters. congress left it to epa and the army to define the waters of the united states. existing regulations defined waters of the united states as traditional navigable 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 wetlands have been confusing and complex as a result of the last two of those decisions. in 1985 the supreme court

addressed the scope of waters for the united states for the first time inspect in a case which vofl have vofled wetlands ajaceable to traditional navigable waters. in a unanimous opinion, the supreme course talked about the integrated nature of the aquatic ecosystem and importance of adjacent wetlands to that ecosystem. the court observed that protecting aquatic ecosystems for water moves and hydrological cycles and it is essential that discharge of pollutants be discharged at the source, end quote. keep in mind the clean water act is a statute. then in 2001 the supreme court in a 5-1 decision held nonnaviable waters on interstate ponds bying my migratory birds was

not in and off 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 ecosystems indicated the intent to regulate systems inseparable bound up with waters of the united states and that it was the significant nexus between the wetlands and navigable waters that informed our reading of the clean water act in the previous said case in 1985. while the swank decision in the 2001 case did not invalidate the agency's regulations, it emphasized some type of relationship with waters nav i guessable were necessary for jurisdiction. it also introduced the concept of significant nexus. then in 2006 the supreme court considered the scope of waters of the united states in the joint repanos and carabell decisions which involved wetlands, adjacentjasdjacent to nonnavigable tributaries. while all members of the court agreed that the term waters of the united states encompasses waters including wetlands beyond

those that are navigable, in fact, the case yielded no majority opinion. in fact, the nine justices managed to author five separate opinions. a four-justice mruralty determined it as covering relativity permanent standing or continuous yously flowing bodies of water, connected to traditional waters as well as wetlands with a continuous surface. to such relatively permanent waters. 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 closed quote, or again quoting, seasonal rivers which contain continuous flow but no flow during dry months. justice kennedy in his concurring opinion concluded that the term waters of the united states encompasses wetlands that possess a

significant next us to waters that are or were navigable, in fact or could reasonably be so made. he quoted swank in support of that position. he stated wetlands possess the recollect we sis significant nexus if wetlands, quote or in combination of similarly situated lands in the region affect the chemical, physically and biological integrity of covered waters more readily understood as navigable. just kennedy's opinion notes such a relationship with navigable waters must be more than speculative or insubstantial. 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 did we do a rule? so we did the rule because the confusion and uncertainty stemming from the last two supreme court cases created a request for over the past ten

years for the epa and army corps to undertake 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 repanos had five opinions from nine justices. even they were confused and did not agree. request came from both parties, both chambers, state and local agency officials, industry, agriculture, resource extraction, environmental and conservation groups developers and builders, scientists and the general public. secondly, one in three americans rely on seasonal or femoral streaming for their drinking waters, 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. in fact, it was eli's study in 2013 that concluded that about a little over two-thirds of the states have laws that could

restrict their authority to regulate waters affecting streams, wetlands and other waters not protected by the clean water act. while some state restrictions are easier to overcome than others, the record has been that the states are not taking action. what does the rule do? the clean water rule protects streams and wetlands that are scientifically shown to have the greatest impact on dow 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, predictably determined, easier for business and industry to understand and consistent with the law and the latest science. the clean water rule creates eight categories of jurisdictional waters, subject to definitions and limits in the rule, and two categories that are subject to a significant nexus analysis. the analysis first discussed in swank and then repeated in

repanos. the clean water rule continues jurisdiction for traditional navigable waters territorial seas and impoundments. there's no change from the current rule. what did change the clean water rule clearly defines and protects tributaries that impacts the health of downstream waters. remember the clean water act protects navigable waterway says and their nonnavigable tributaries. must show physical features of flowing water, bed in banks and an unordinary high water mark, and rule provides protection for head waters that have these features and, science shows, can have a significant connection to and effect on the downstream waters. the rule provides certainty in how far safeguards extend. rule protects waters that are next to rivers, lakes and their tributaries because science shows that they impact down stream waters. but for the first time, the rule sets boundaries on covering nearby waters that are physical and measurable.

those are the six areas that are considered jurisdictional by rule. now the two that are subject to the case specific analysis. and i also want to emphasize that today under the current rule there is a case specific analysis, but it's based on determining whether there is an effect on interstate commerce. the new test from the supreme court is whether there is a significant nexus a connection between an upstream water and a downstream water. and whether there is an ability to have a significant effect from upstream to downstream. science shows that specific water features can function like a system and impact 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. parry potholes, carolina delmarva ways pa chosen vernal pools in california and texas coastal prairie wetlands but only when they impact downstream waters.

in determining the impact, the functions of these water features will be evaluated as a system in their watershed but still subject to a significant nexus analysis. the second category of water subject to a significant nexus analysis are those within the 100-year flood plane of a traditional navigable water, territorial seas as well as waters with a significant nexus within 4,000 feet of these jurisdictional waters. that's it. much clearer, much simpler, more bright lines, more transparent and fewer case specific analyses. the new rule focuses on streams not ditches, providing protection to ditches that are constructed out of streams or function like screamtreams and can carry pollution downstream. a ditch not constructed in a stream and flows only when it rains is not covered. the new rule maintains the status quo for municipal separate storm suer sms or ms4s we do not change how those

waters are treated and we encourage the continuing use of green infrastructure. so i said we reduced the number of case-specific analyses that are required. today almost any water in america could be put through a lengthy case-specific analysis even if ultimately it would not be subject to the clean water act. the new rule significantly limits the use of case-specific analysis by using clarity and certainty and by limiting the number of similarly situated waters. the new rule maintains and expands exclusions from old rule to new, including those for the waste treatment systems and prior converted crop atlanta and also adds three types of ditches, ground water, gullies, nonwet land swales to the list as excluded and include water delivery re-use and erosional features. finally other constructed features such az stock ponds, cooling ponds are excluded.

the rule only 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 subsurface flows or tile drains. it does not change our policies and regulations on irrigation or water transfers. 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 craig schmauder, deputy general counsel office of the army general counsel, inis it lagss, environmental and civil works. lands and facilities and environmental law, protection of wet lands and legal issues relating to the u.s. army corps of engineers regulatory

programs. craig spent his distinguished career in the army legal service and we're survived he survived the metro river crossing to make it here with us today. >> thanks scott. 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 week 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 correctly, i might add, that these same themes were debated 40 years ago and are still relevant today. 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 at the end of the day, 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 in the development 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 rule's development. my client and my colleague joellen darcy assistant secretary for development of civil works said this is a generational rule. it completes another chapter in the history of the clean water act. and that -- those words ring loud and clear, and they're so truthful. you know, where the act is almost 40 years old and the current rules that are -- this new rule once it goes into effect, change are 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 alluded to, we left unaltered many rules that are in the 1970-era regulations that were announced here on may 27th. and i cannot overemphasize enough 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 accomplished the goals we set out to do in this rule-making exercise. one was the rule was to make common sense changes. this wasn't a -- this is not a fundamental swing in rule-making or the state of the law in the clean -- in clean water, but it makes very important common sense changes that will benefit both the water resource as well as our economy. the rule adds clarity. as i said last week up on the hill, i would ask everybody to lay the 1970 versions of the rule side by side with the new rule and look carefully at it 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 in the mud and in the water each and every day have set of rules they can say with certainty that is jurisdictional or nonjurisdictional. thirdly thirdly, the rule in several important areas based off those supreme court decisions that ken alluded 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 here a little more shortly. the changes that were made are and were science-based consistent with the decisions in swank and repanos, and probably equally as important they are responsive to the stakeholder comments we have received.

i think it's widely known we received over 1.3 million comments on the rule. many of them substantive comments with particular views and point. we in proposing -- in announcing the proposal rule in the preamble, we sought public comments. we went out and we actually solicited the type of comments. and we got the comments. again, if you lay the proposed rule down alongside of the final rule you cannot -- it cannot -- that rule changed and changed fundamentally. the rule clearly defines for first time what is jurisdictional and equally as important, what is not jurisdictional in the rule. and then, of course, many of the terms that are so critical in in implementing the rule are now much more defined with greater

clarity in section "c" of the rule. implementation -- this is my last section. i just to want say in the preamble we did 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. at any point in time the corps had a substantial amount of requests jurisdictional determinations and applications for permits in the queue. they're in multiple stages of completeness. and so what we -- what we did in the rule was we established a grandfathering provision that we think will make for an efficient and effective implementation of the new rule. essentially, it goes like this, is that as of the date the rule goes into the federal register

the corps' 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 an applicant is complete, then that rule will be allowed to proceed and be decided upon under the existing rule. notwithstanding the fact that it may come out after the effective date of the rule. unless, of course if the applicant punishes 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, then any decisions thereafter, except forty-ones that were just deemed to be complete and process out under the old rule, those new applications and decisions will be rendered under

the new rule. so the corps is prepared to effectively and efficiently implement the new rules. guidance is established, training is already taking place. we're anxious to get started. with that, scott, i'll turn it back over to you. >> thanks, craig. before we go over to deidre and jon, can you explain briefly what the army's role is in the section and why the army is at the table and why you were so involved? >> sure. the corps implements one of the key sections in the clean water, and that's the 404 section. the discharge of dredged material is deemed to be a pollutant. there's a long history -- that article -- gerngs again i

commend your reading, lays out exactly why the corporation is involved and goes back to 1899 and the river and harbor act and having the corps be responsible for maintaining the navigability of the inland waterways, basically to remove supgen vessels and debris so traffic can get up and down the river. the corps 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 deidre will talk about this, is because it often -- most often interfaces with development of lands, lands that may be wet or wetlands that may be on a particular property that someone wants to do somethingii with and then they need a corps permit to either enter into those waters, fill those waurltsters, dredge those

waters, drain those waters or the like. a lot of those waters as we know, is all over the country and the corps has great visibility on its 404 permit program >> 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, correct. yeah, they come into the corps seeking a jurisdictional determination of which there are two types. one is a preliminary jurisdictional determination, and the other is an approved jurisdictional determination. the preliminary jurisdiction is essentially, if you come in and it's nonbinding advisory type of determination. and essentially for the most part, the applicant just says, well, let's assume it's jurisdiction jurisdictional. what will i need? and then a permit is authorized on the -- more or less on the assumption that the land is jurisdictional. someone wants to buy a piece of

property or invest in a piece of property, and they want a more binding jurisdictional determination. one that they can, perhaps challenge in court or otherwise, they would come in and seek an approved jurisdiction. takes us a more significant amount of time in preparing the administrative record. the jd has an appeal process and many of them oftentimes end up in litigation. >> thank you, craig. i want to make sure we're on the same page. deidre duncan from hunton and williams office. 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, deidre served as general assistant counsel of army viding general clean water acts section 404 regulatory program. thank you 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 has actually been involved in obtaining jurisdictional determinations both as a regulator when i was with the army and now in private practice on behalf of regulated entities. and from my perspective, this rule, unfortunately, fails to provide the public the clarity it's been asking for. it fails to provide meaningful limits on federal jurisdiction. and it will be incredibly difficult to implement this rule for regulators, especially the corporation of corps of engineers. and i'm going to try to explain why i'm saying these things. first, the rules tributary definition is largely?y unchanged and is as broad as the proposal rule. in many ways may be even broader depending upon some of the language in the preamble. there were really no substantive changes made to the tributary

definition itself. even though many commenters urged that the definition be narrowed or at a minimum clarified. the tributary definition relies on the concept of ordinary high water mark. but for over 20 years the public has told the agencies in comment after comment that using the ordinary high water mark standard is very problematic. instead, the agencies continue to use this term. in fact, state they can use evidence of historic conditions to document an ordinary high water mark. indeed, even just kennedy in the repanos decision xa sidesed the ordinary water mark is problematic. he stated the breadth of the ordinary high water mark standard, whichb-< seems to leave wide room for regulation of drains, ditches and streams, remote from any navigable water and carrying only minor water

volumes towards it precludes its adoption. the agency's use of this problem tinltic permanent makes almost other parts of the regulation equally problematic as the rule's other cat goreegory jurisdiction and exclusion jurisdiction. many of the threshold distances which we've heard about, for adjacent waters and these case-specific other waters are measured from the ordinary high water mark. given the pervasiveness of ordinary high water marks on the landscape, it will become almost impossible to fall beyond these distances. moreover, even if a water is outside the adjacent water distance limits, it can still be regulated as long as it's in a 100-year flood plane or within 1,000 feet of an ordinary high water mark. these limits are even less meaningful in light of the agency's position that if any portion of a feature is within

the limits of the distance threshold, the entire feature is jurisdictional. these problems continue when you try to apply any of the exclueses. mccall everything with ordinary bed and bank and ordinary high water mark is tributary. erosional features are excluded only if they lack ordinary bed and bank high water mark. it's kind of circular in practice, going to be very difficult and not helpful. similarly if ditches are excluded unless they were excluded and a tributary. in other words, unless you can prove there wasn't an ordinary high water mark there on the landscape. it could have occurred a long time ago. ultimately what is the distance between an afemoral ditch and federal streams that are regulated? you guessed it. it all comes back to the ordinary high water mark.

there are also concerns with other key exclueses. for example, exclueses for waste treatment systems, storm water systems, artificial ponds and water-filled depressions are all tied to having to establish that the feature was created in dry land. meaning that you will have to prove that at the time of the feature's construction, be it in 1910, it was created in dry land. importantly, the agencies specifically state there is, quote, no agreed on definition for dry land. given this ambiguity combined with the breadth of the ordinary high water mark concept the rule simply fails to provide clear exclueses for ditches, on-site industrial water and storm water systems. the aim of the rule as we've heard was to provide clarity and make jurisdictional

determination -- but all of the rule's vague and complicated definitions, distance thresholds and exclusions will be incredibly difficult for the public and local regulators to implement, especially the corps of engineers. just to close by illustrating how complicated to apply this rule will be, i wanted to read an example given by the agencies themselves in the preamble to the rule. the agencies stated that, quote under category a-8, for example, the agencies would evaluate on a case-specific basis whether a low centered polygonal tundra with an area with a small flood plane and located beyond the 1500-foot boundary but within the 100-year flood plane of a traditional navigable water, interstate water or territorial seas or within the 4,000-foot boundary or a wetland in which normal farming, ranching or civil cultural activities occur as those terms are used in seconds 404-f and implementing

regulations has a significant nexus as defined in the rule. you tell me if that's going to make jurisdictional determination simpler. >> thank you. next we'll turn to jon devine, senior attorney in washington, d.c. office of natural resources council. he works on implementing, defending and strengthening cleeb water act programs. prior to joining nrdc he was an attorney in general counsel and prior to law school jon was environmental protection agency. thank you for coming over. >> thank you, scott, and thank you for including me in today's session. in general, we at nrdc view the clean water rule as a major step forward. we're grateful to the obama administration and the people in the agencies, like ken and craig, who not only have to wade through a mountain of scientific

and public input on the rule, but also whether baseless claims of being power mad, bureaucrat, bent on controlling and destroying the american economy. given that our review. evidence leads us to conclude all sorts of water resources are important to the overall integrity of the aquatic system. as a result, we're strongly supportive of the aspects of the rule that guarantee protections, to those waters the science shows are critical mainly tributaries and nearby waters. we hoped for more certain protection for other water

bodies but the rule leaves many of those to later evaluation of watershed levels to impacts of downstream water resources. we believe the proper application of this analysis will eventually lead to waters protection, but we think it will require our significant engagement to be sure. on the other hand, we were disappointed by those areas where the agency's excluded features categorically from the law. especially in those instances where the agency's expert science advisers urged them not to provide categorical exemptions. for example, we strongly pushed the agencies to protect so-called isolated waters where the science showed they were significant as a category as well as certain man-made tributaries which had long been protected by the law. but the final rule exempts a number of those features outright.

on balance, though, we think the benefits of restoring guaranteed protections to the waters at the core of this rule is a major improvement. it assures protections for the kind of streams that provide supply for drinking water providers for one in three americans to say nothing of the wetlands that prevent flooding, filter pollution and support all manner of wildlife. so, thank you for having me. >> thank you jon. we appreciate it very much. we have a number of questions. i'm going to allow the panelists to ask questions and impose questions. . i'll get it started. if you have a question let us know and i'll get a question to you. deidre had a number of comments particularly about tributaries. in the press there's been questions about tributaries as well. anything i would like to respond to about ordinary high water mark categorical exclusion, anything about that comment? >> well, thank you scott. we looked very carefully at the science and what does the

science tell us about the impact on upstream waters and downstream waters? we know from a hydrologist's standpoint the waters with connected. we know the court has made it clear the clean water act does not apply to water simply because it's connected to an upstream from downstream water and you can find that connection. instead what we wanted to focus on is where is that connection significant, such that this can be a significant affect on the downstream water from pollution or destruction of upstream water. we know that the science indicates that those effects have be measured but they also -- you have to be able to find an indication of sufficient flow for water to get from the upstream area to the downstream area. and 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. but we do have a history of working in this area and we will continue to work in this area. we actually think by adding physical characteristics to the definition of tributary for the first time, that we've in fact, made it more clear. we've taken some of the guesswork out. we know now that while deidre 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 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 features. but we think those are important components of the rule and improvements over the existing rule. i also, if i could just very

briefly, comment on, you know, some of the -- some of the exclusions that are in the rule. obviously, many of those are carried forward from preamble 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 feel who are facing this and needing to make their own determination, the idea of the rule particularly the definition of tributary was let people take a look and get a good sense whether they were inclued or excluded? the does the corporation have documents people can consult to find out what an ordinary high water mark looks like in various

regions? guidance put out in the future helping to explain ma what this rule means? do they look at the 200-page long preamble of the rule? what would folks do? >> thanks, scott. the corporations regulators have lots of tools available to them. to include -- to include manuals that they use. i don't -- i don't think it's as hard to identify an ordinary high water mark as deidre would attest to. the industry knows, again, the one thing that -- in the definition i would point out that wasn't identified in deidre's comments was that notwithstanding you have an ordinary high water mark, which has a bed/bank physical indicators of a bed/bank in

ordinary high water mark they have to be of a sufficient type that contributes flow to one of the waters that are navigable. as ken alluded to these are things that are fairly readily evident. and ken says in certain types of the parts of the country, they're different. they're different appearing. but i don't believe that they're that difficult. the corps regulators are well prepared. these are experts. people who are experiencing these matters. they are using all the tools available to them. and they do discuss that with the applicant. they go out, they do site visits. and so i -- it's not that difficult to find an ordinary high water mark. >> if i could just add sdw to that. the agency's existing definition, the one that is being changed just protects

tributaries without elaboration. this provides further definition as to what it involves. and candidly, in some ways, we had urged the agencies not to go. in the proposal for instance, we hadlands and ponds that act as tributaries that are the source for water downstream streams could have been considered tributaries under the rule and protected as such. the agencies opted in the final rule not to do that because those features typically don't have an ordinary high water mark. and so that's among the ways that -- that we had actually urged the rule to be stronger and was not but a choice that the agencies decided was

necessary to give greater clarity to the regulated public. >> deidre, how would you recommend that be approached in lieu of -- or in light of any comments you've heard? >> let me comment a bit and say that, you know, to claim that the science supports the ordinary high water mark, i think, is a bit disingenuous because i don't think the s.a.b. report, the epa report, the connectivity report examine 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. they're all over the place. they can be found almost anywhere. if water has passed at some point in time over the landscape in certain parts of the country they are pervasive. so 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, the substantive public comments, where people actually, you know, were thoughtful in what they were saying, if those had been reviewed carefully, which i assume they were i think the agencies would have seen a lot of people -- a lot of people gave a lot of thought and comment on the term ordinary high water mark being highly problematic problematic. so that's my perspective on ordinary high water mark. with respect to the exclusions remaining largely unchanged like waste treatment, that may be the case. but the real problem is the definitions have not remained unchanged. tributary now has a very broad definition. includes ditches manmade

conveyances in a very explicit way. there's a new category of waters called adjacent waters. and waters in a footnote are broadly defined. so, that's why i think a lot of comments raised concerns about these exclusions not being as clear as they could or should be. you now have these very broad other categories that weren't in the existing regulations before. >> thank you, deidre. i saw a question in the audience. >> thank you. i'm with the national association of home builders. i want to step away from tributary for a second and actually explore the eighth category of waters. these are those that are within 100-year flood plane or one

through five water provided they have a significant nexus to one through three water. i want to go through a scenario and explore the, quote, common sense, craig said earlier that was used to base jurisdiction on clean water act. so, to really understand this. we have to understand two terms significant nexus and explore the science or common sense behind the 4,000 feet. significant nexus i want to pull out two examples of what could in and of themselves prove water has a significant nexus. in cfr language for the final rule. e, would be runoff storage. and f would be contribution of flow. so if a water stores runoff it could have -- it would have a significant nexus or if it contributes flow. so there -- waters can function as a source or a sink one or

the other. effectively the way i would read this if you contribute flow or store flow or water you have a significant nexus. secondly, we need to explore this concept of within 4,000 feet of a one through five water. and i'd like to point our attention to the epa's own economic analysis of the final rule that says quote, the agencies have determined vast majority of the nation's water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water or territorial sea. we believe therefore very few waters will be located outside 4,000 feet and within 100-year flood plane. so, in other words it's nearly impossible to find a water -- this is in the agency's own language -- that would not be subject to a significant nexus test. again, to have a significant nexus you either have to store water or contribute water. wouldn't that be all water.

my question s isn't that the common sense and the science used to provide clarity under this final rule? >> craig do you want to start? >> well, there's a lot there. let's start with the -- let's start with the -- these are isolated waters we're talking about in aa. >> that's what i would generally refer to, yes. >> okay. so explain to me again what the first part of your concern 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 still may not be -- may not have a significant enough of a nexus due to

their -- due to their distance. i mean they could be at the outer end of the 100-year flood plane. >> it's defined in the final rule as providing one of those functions. it can be just one of the -- >> you're talking about -- >> the eight or nine. >> -- the eight or nine functions? >> yes. >> if i could, owen, and thanks for allowing for some clarification on this. as you correctly point out, we've specifically listed functions under the significant nexus test. that was in response to -- during the various public meetings we held the agencies held over 400 public meetings. i think you personally participated in more than one. more importantly, as craig said, we received in excess of 1 million comments.

and in answer to your question, yes, they were all looked at. and considered. but i think the -- what we heard was -- you said significant nexus in the proposal. we did a pretty good job of repeating what justice kennedy had said in his concurring opinion. but people said that didn't provide enough meat of the bones, if you will. cue not look at other ways to better quantify what is considered to be a significant nexus? what the agencies did was we heard a lot of can you give us -- can you take these qualitative concepts and turn them into quantitative concepts? for example, on contribution of flow should it be "x" amount of cubic feet per second "x" number of times a year on what average et cetera. so, is there a way to do something that was measurable?

is there -- so we looked at that and determined 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 that what we could do was be more transparent in the final rule about what were the functions the agency would consider in doing the significant nexus nalgs. those are the functions you see listed in the final rule. i believe that we've tried to make it very clear, and if we haven't, we will continue to be -- to make it more clear that those are functions that will be considered, but the single presence of a function does not necessarily make it jurisdictionsal. as craig said, it has to have the ability to have a significant effect. you're probably correct, you know in terms of looking -- it either contributes flow or holds flow. that kind of is the entire universe. you know, that's the yes and the no.

but i think that we do know that different water features provide those functions and their significance can depend very much on which of those it is. in fact, just kennedy in his opinion even said sometimes it's the lack of a connection that provides the significance. and some regions of the country the prairie pothole region, for example, is a good indicator of that. and so -- i know i've gotten a little long on the answer, but i acknowledge your question, but i will tell you the agencies are not going to look at the list and say, oh, if i can find one of those bookm, you're in. the agencies will have to find that -- we believe this is explained in the preamble. it can be a single one of those functions, but have to be morrow bust. it could be a combination of functions but you're still looking for something that has some significance. it's not going to be -- if you

can find a sin till la of evidence of that function that that would get you over the threshold. i hope that helps 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 -- you know, when we introduced the definitions and associated with adjacentcy can the proposal, people said, could you draw more bright lines? cue be clear? as you might remember, we tried to use flood plane to define adjacency. we were told, first of all, people were not comfortable with using the term riparian area because they thought it was too inact and ill-defined. we heeded that. it would not rely on a flood

plane because of the inact nature of the flood planes that are out there. we heard overwhelmingly in the public meetings and in our comments, would you pick a flood plane and work off of that? we remained concerned about -- about exert -- about establishing adjacency jurisdiction in a flood plane when the flood plane could be very large in certain areas of the country. so, we then looked at, were there ways for us to translate what is effectively an inexact science into something that is more predict bl and more clear on its face. and so relying on what the science told us, relying on the expertise and experience of the two agencies as to where we felt you were likely or not likely to find a water that had a significant nexus. we then spent some considerable time figuring out if there was a

place for us to land, knowing that once we draw a line, we're going to create something inside, something outside, and it's not going to be perfect, but we think it's largely substantiated by the evidence we had in our record over the many years of the agency's work in this program. thank you very much. >> 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 flood plane. in certain large river systems the 100-year flood plane may be on the outside of the 4,000, but in most cases, particularly not in the smaller rivers, that the 4,000-foot limit will be the outer limit of the -- of the jurisdiction. >> thanks craig. we have a question from online then we'll move up front. please discuss the significance -- example of

strong water control features that are not created in dry land. i think there's also the question of, is is there any more explanation of what dry land is. as deidre referred to. >> sure. thank you for -- thanks for that question. when we set out to do this rule we did not -- we intended to not affect the jurisdictional status of water features inside a permitted municipal separate storm system or mms4. we heard from working with communities around the country the permitted entities there were concerns we may have affected 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 in their ms-4 does have outfalls, they are also permitted on a geographic basis. for example, the district of columbia's storm water permit covers the district of columbia.

within the district of columbia you have natural water features that are actually carrying storm water and are part of their general and overall municipal storm sueewer system. i mean for example you know, 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 would be a jurisdictional tributary to the potomac would it then be a jurisdictional water in and of itself such that the storm water would have to be treated somehow before it got into rock creek, even though rock creek is part of the overall system that controls storm water in the district of columbia. and, so the exclusions that we put in were designed to address the ability for communities to

look at their totality of their storm system and look at things such as retention ponds, green infrastructure components those kinds of things, that were 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 jurisdictional and if they are not jurisdictional today they will not become jurisdictional and he believe in the final rule we've not changed things. >> so, ken, as an example, a rain garden that a municipality designs to capture and infiltrate forest water, if that took on characteristics over time, that would not be covered water. >> that is correct.

and so we would hope it would take on those characteristics over time because it would do a good job of taking over pollutants but taking over commercial development and you see them all over the place and the use of green infrastructure is something that our agencies strongly support and we want to encourage it and do not want to create a fear in a regulatory environment that we're taking a way a tool that we think is popular within the communities and within local governments and also in response to the development community who makes use of this all over the country. >> can i raise just a question about the rain garden example and make talk from a practical experience perspective, which is salientenity has created the wet lands that has developed fast

forward 20 years and it is a wet land. and relying on the exemption for green infrastructure created in dry land, talking to a regulator trying to tell them that the rain garden which is now functioning as a wet land was created in dry land becomes very difficult from a practical point of view, i think. and i don't see anything in this rule on the face of the cfr language that gives that entity a lot of comfort that were you to go out and undertake this activity now that you have -- that you will have certainty 10 or 15 years down the road that you can point to in again rural language that you are exempt. that is one question on the green infrastructure and i have another on the ms 4 if time permits. >> well let me respond to that. first of all, of course, we're

talking about areas that are subject to the permitting program in 402. and i'm expecting that 20 years from now that community is still going to have a 402 p permit. it is not as though they are going to completely lose track as where the rain gardens are. secondly, if the rain garden was put in and takes on the characteristics as we hope of functioning well, keep in mind the clean water effect will take effect if somebody wants to dump pollutants in -- >> and can i say that and i hear you say that in outreach and oftentimes municipalities, local governments and also just entities that have a facility have these features on their property and they want to actually improve them, change them in a way that may be beneficial for the over all management of water on the site. and that then raises the question of triggering permit requirements. it also raises the concern of other elements of the clean

water act like water quality standards that even if you aren't undertaking the destruction of that feature apply. so the fact that something is water of the united states limits and that is i think the goal -- limits the ability to do something in that regardless of whether you are trying to destroy or change the area. >> will always respond to say that i -- i guess we'll know in 20 years. but i find it to be a little overly speculative that in a 20 or 30 year time frame somehow both the regulated entity and the regulators will lose track of the fact that this rain garden was put in as part of the storm water permit program. and i will concede, it is conceivable that people could lose track of it. but if you are living in a world where your permit is renewed every five years i find it stretching it a bit that in 28 years or 25 years or whatever

that everybody is going to forget. i also would say it was put in, it was exempt when it was put in and if a community wants to come in and makes changes or improvements to it, you haven't out lined a factual situation to cause the exemption or the exclusion i should say from the clean water program to change. so i just -- i realize that what you are raising is a hypothetical. i can't say definitively it cannot happen but your hypothetical is raising a set of facts that i find a little overly speculative that it will be a problem when you are living in a world of an already regulated entity. >> okay. can i also just chime in because the whole notion of an exclusion being tied to created in uplands or draining uplands or created in dry lands, whatever the phrase is, as you said, was in the preamble, and there were exclusions to the preamable and

so i think the regulated public and i personally have been involved in jurisdictional determinations where the fact pattern scenario that we are talking about which as a feature was created for a purpose, maybe not rain garden but for an industrial use, was created in a water of the united states, before the clean water act, and then now 20, 30 years from -- from now, today, you are being forced to assess was it created in up lands, dry land and you are looking at all kinds of historic evidence, it is very complicated even where you've had that feature created through a permit, these are real factual circumstances that occurred under the skplugss -- exclusions as currently exist. >> i will say i do find it interesting that the points that

we're hearing that we're being criticized for doing is we're taking language out of a preamble that has no real operable effect that preserve the right for the agency to change its mind any time it choose to and we put it into a final rule that binds the agency and we no longer have the discretion to change our mind and put in the same concept that has been around for well over 20 years. we formalize it and make it legally binding and are criticized for it. and so the option for us would be to go back and take the exclusions that we proposed in april of last year and simply take them out. and then that would have left everybody with far less rights than they have today. and so while i hear that you would have liked to have had more clarity and specificity, i don't want to lose sight of the fact that we have done here is created exclusions from the clean water act that do not

exist today in the rule, they exist mostly in practice but not in the rule and we put them in the rule and we're being criticized for them. >> and i would like to build on that. i mean, it is impossible to describe with specificity all of the kind of water resources that exist in the united states. i mean, in a rule of length that isn't biblical, it is impossible. and so there is -- there are going to remain questions in the future about how the specific language in this rule apply to factual situations, and that is -- that's just part of the deal here. with respect to things that might be marginal or have been created in waters originally, might not have been, looking at those closely in the future doesn't trouble me. i imagine it might trouble you, in the least. because what we're talking about here is whether or not we're going to allow their destruction or pollution without a regulatory over sight. and having that check-in before those kind of things happen to such features is often very much appropriate. >> so i want to make sure we don't lose questions in the office and ken, if you could pull the microphone closer to

you. we have a question up front. >> thank you. i'm miss burn balm with scb strategies. it is interesting the conversation got around to the question i have which is for deidre. at the end of your talk, you quoted an example from the preamble and suggested it wasn't a model of clarity and my reaction was pretty different. i thought it was clear. i thought it contained a number we have a question up front. >> thank you. i'm miss burn balm with scb strategies. it is interesting the conversation got around to the question i have which is for deidre. at the end of your talk, you

quoted an example from the preamble and suggested it wasn't a model of clarity and my reaction was pretty different. i thought it was clear. i thought it contained a number of detailed criteria but then having that detailed criteria was necessary to make it clear. and so i'm wondering, from your perspective, is there a single criteria that would designate the jurisdiction of the water act and that is reductionist and what does clarity look like if it doesn't look like a detailed set of criteria. what do you think would look like and what would it look like if it wasn't trying to cite down the conditions. >> i would love it if you diagram the example and explain to me -- i didn't say it wasn't complicated and having a junior level core district gs 12, 11, 10 -- i don't know what the core regulators are in the field working through this example will be challenging. i don't know if you've ever worked with on a jurisdictional

determination with somebody at the corp of engineers but it is challenging. and an example like that would be difficult. in terms of clarity, i would go back to the term ordinary high water mark. for -- ever since i've been a lawyer, which i graduated in 1996 and worked with the army, the term ordinary high water mark has been a term that people have longed for some clarity in. the word ordinary would seem to imply some form of ordinary flow. but in practice, it bnls a mark on the landscape which bears no resemblance to ordinary flow and so i think the comments have asked for clarity and criteria as ken said and maybe they considered this and decided not to, but frequency, duration of flow, to create an ordinary high water mark. that would have been something that i think a criteria that would have been very helpful and beneficial again to the regulator, to the public, in defining what a tributary is. that is one example.

water -- what is a water under the clean water act. is an industrial water that holds industrial byproduct a water meant to be protected by the clean water act? if it is next to a ditch, is it then an adjacent water? these are the kinds of questions that i think when you read the comments, a lot of comments, they ask for clarity on these questions. and the rule tiptoes up and around those but doesn't really take them on. and instead leaves a lot of the definitions vague, like dry land, for example. >> if i can just comment briefly

in response. to me, changing the definition of ordinary high water make would be saying we're going to take a technical term which has an established meaning and give it a different meaning which strikes me odd. but each thing you talk about is a question of setting out a different criteria or solution and it is necessarily going to be complicated. i was wondering if you think there is a way to write it that is not complicated because you suggestion it fairs on the clarity test because it is complicated. >> that is not what i -- this is complicated. that is not necessarily why it fails to be clear. i thif there are a lot of terms that are un -- i think that there are a lot of terms that undefined that are subjective and lead to inconsistent results. ordinary water mark and dry

land, there are some of the chief offenders. something can be complicated and detailed and yet be very clear and i don't think this is that. >> let me throw a comment in on just one thing. and defend the core regulators. i said before in one of my responses, i don't think it is that difficult to understand if your a professional biologist or hydrologist to go out and look in the field and identify through field research and being on the ground to find an ordinary high walkment it is not something we concocted. this is a technical term of art long used in this business. the corp regulators don't have difficulty finding, identifying ordinary high water marks. one of the things when we -- in context, one of the things that could have been done perhaps as an alternative to ordinary high water mark is to require gaging, putting in gauges all over the o&[g place, which would confound a whole host of other issues that we would have been criticized for, for requiring people to put gauges in their streams, whether the gauges are properly maintained, are they adequate and being read properly.

this is a common sense surrogate. clearly everybody reads the case, justice kennedy recognized that it was a term of art. didn't come up with anything himself that could be better. but he did identify that the breath could be used for unlimited capabilities and both in the 2008 guidance that we did you can watch the rest of this online on c-span.org as we head back to live coverage on proposed epa rules on greenhouse gas emissions. the chair west virginia senator shelly moore capito. >> i thought it would be best to go ahead and move on. so, i want to welcome everyone to the hearing of the clean air and nuclear safety subcommittee. and the hearing is entitled the impacts ofei3uñ epa's proposed carbon regulations on energy costs for american businesses, rural communities and families. and a legislative hearing on my bill, s-1324 which is better known as the arena act,

affordable, reliable electricity now act. i introduced in may and proud to have more than 30 cosponsors including leader mcconnell and all my fellow epw republicans. i introduced and holding this hearing today because of the devastating impact that epa's proposed regulations will have on the families and businesses my home state of west virginia and across the nation. i am not exaggerating when i say almost every day back home in west virginia, there are new stories detailing closed plants job loss and price increases. i have a letter here today sent to me by amars incorporated. operates 19 magic mark stores in west virginia, virginia and eastern kentucky. the letters accompanied by a petition signed by 26,000 magic mark customers calling on epa to end the war on coal and catastrophic impact on local economies. been active in the region for 95

years. and according to this letter, the present economic crunch is the most difficult challenge this company has faced. let me quote directly. quote, there was a time when your greatest obstacle was your competitor. but if you worked hard, took care of your customers and offered quality merchandise at a fair price you could compete successfully. unfortunately, that is not the case now. the largest impediment we have now operating our business successfully is our own government, particularly the epa. the rulings issued by the epa have devastated our regional economy. coal provides 96% of west virginia's electricity last year and west virginia had among the lowest electricity prices in the nation. the average price was 27% below the national average. but that will not survive this administration's policies. studies have projected that our electricity prices will rise from 12% to 16%. earlier this month 450,000 west virginians learned of a 16% increase in the cost of electricity. multiple factors that contributed to this, compliance

with epa regulations played a significant part. if we allow these plans to move forward, last week's rate increase will only be the tip of the iceberg. affordable energy matters. the 430,000 low and middle-income families in west virginia, which is nearly 60% of our state's household take home an average of less than $1900 a month and spend 17% of their after tax income on energy. these families are especially vulnerable to the place increases that result from the clean power plant. but this isn't just about the impacts on coal-producing states like west virginia. this is about impacts across the country. it's important to note that all electricity has to come from somewhere. in many states odds are, it is being imported from a state that relies on coal. but no one is talking about that. we're going to learn in some of the panelists' testimony from reggie, which is the regional greenhouse gas initiative. one of the witnesses we'll hear from today, mr. martins, and

thank you for coming, is affiliated with reggie, a program of nine northeastern states that uses market principles to reduce emissions from the power sector. mr. martins may not mention that the nine states consume five times more energy than they produce. and my little state of west virginia produces twice as much energy as all of the nine states in reggie combined. there are energy-producing states and energy consuming states. only 13 states produce more energy than they consume. west virginia ranks second and wyoming ranks first. and for the 10 of the 13 states that export energy, coal is critical to have a net positive result. put simply there is no way that this massive largely epa driven reduction in coal-fired electricity generation is going to impact only coal states. it is going to impact the majority of states, the families and businesses within them. often, the poorest and most vulnerable of our populations

will bear the brunt. i look forward to hearing in greater detail from our witnesses about these impacts and the need for clean air policies that don't overburden our states and cripple our economy. so with that, we'll just go ahead and begin our panelists, our first panelist is mr. eugene trisco. and i welcome you, mr. trisco. thank you for coming. >> thank you very much, chair capito. and distinguished members. i'm eugene trisco. energy economist and attorney in are private practice. i'm here today to discuss the impacts of energy costs on american families. i've conducted these household energy cost studies periodically since 2000 for the american coalition for clean coal electricity and its predecessor organizations. the study i will summarize today, energy cost impacts on american families estimates

consumer energy costs for households in the year 2016. the principal findings of the study are, one, some 48% of american families have pre-tax annual incomes of $50,000 or less with an average after tax income among these households of $22,732, or a take home income of less than $1,900 per month. two, the 48% of households earning less than $50,000 to vote an estimated average of 17% of their after tax incomes to residential and transportation energy. energy costs for the 29% of households earning less than $30,000 before taxes represent 23% of their after tax family incomes before accounting for

any energy assistance programs. now, this 23% of income is more than three times higher than the 7% of gross income paid for energy by households earning more than $50,000 per year. three, american consumers have benefitted recently from lower gasoline prices, but higher oil prices are now reducing consumer savings at the gas pump. meanwhile, residential electricity prices are continuing to rise. residential electricity represents 69% of total household utility bills. a 2011 survey of low-income households for the national energy assistance directors association reveals some of the adverse health and welfare impacts of high-energy costs. low-income households reported these responses to high energy bills.

24% went without food for at least one day. 37% went without medical or dental care. 34% did not fill a prescription or took less than the full dose. 19% had someone become sick because their home was too cold. the relatively low median incomes of minority and senior households detailed in the study attached to my statement indicate that these groups are among the most vulnerable to energy price increases. recent and perspective increases in residential energy costs should be assessed in the context of the long-term declining trend of real income among american families. the u.s. census bureau reports that the real pre-tax incomes of american households have declined across all five income

quintiles since 2001. the largest percentage losses of income are in the two lowest income quintiles. in 2014, the average price of residential electricity in the u.s. was 32% above its level in 2005. compared with the 22% increase in the consumer price index. d.o.e. projects continued escalation of residential electricity prices due to the costs of compliance with environmental regulations and other factors. moreover d.o.e. epa and others project that electricity prices will increase even more because of e.p.a.'s proposed clean power plant. lower income families are more vulnerable to energy costs increases than higher income families because energy represents a larger portion of their household budgets. energy costs reduce the amount of income that can be spent on

food housing, health care and other basic necessities. fixed income seniors are among the most vulnerable to energy cost increases due to their relatively low average incomes and high per capita energy use. senior citizens and other low-income groups will bear the burden of higher energy costs imposed by epa's cleaned power plant but be among the least likely to invest in or benefit from the energy efficiency programs that the proposed rule envisions. thank you for the opportunity. >> thank you very much. our next witness is paul sisio. welcome. >> thank you. chairman capito, ranking member carper, and members of the subcommittee, thank you for this opportunity. the industrial energy consumers

of america is a trade association whose members are exclusively large companies who are energy-intensive trade exposed. these industries often refer to as eite consume 73% of the manufacturing sector's use of electricity and 75% of the natural gas. as a result, small changes in energy prices can add relatively large impacts to our global competitive competitiveness. we use as a manufacturing sector 40 quads of energy. and this has basically not changed in 40 years. meanwhile, manufacturing output has increased 761%. this is a true success story. the industrial sector is the only sector of the economy whose greenhouse gas emissions are 22% below 1973 levels. these industries are very energy-efficient. ieca reports action to reduce

greenhouse gas emissions so long as it does not impair our competitiveness. we must have a level playing field with our global competitors. several countries that we compete with control prices to their industrials. and two of them are china and germany. they provide subsidies and practices to give them competitive advantage. if we were military, one would say that we are engaged in hand to hand combat and competitiveness. all costs of unilateral action by the united states through the clean power plant will be passed on to us, the consumer. as proposed the clean power plan will dramatically increase the cost of power and natural gas, accomplish little to reduce climate change and provide offshore competitors and economic vaj potentially creating industrial greenhouse gas emission leakage with harmful effect to the middle class, the economy and the

environment. the epa cannot look at the clean power plan in isolation from the significant cumulative cost that it will impose on the industrial sector either directly or indirectly through a number of recent rule makings. since 2000, the manufacturing sector is still down 4.9 million jobs. since 2010, manufacturing employment has increased 525,000 jobs. we are still in the early stages of recovery. we do fear that the clean power plan and the ozone rule is going to threaten this recovery. in contrast, for example, china. our primary competitor has increased employment by 31% since 2000. and u.s. manufacturing trade deficits since 2002 has grown $524 billion, 70% of that is with one country, china. china's industrial greenhouse gas emissions have risen over

17% since 2008 alone. china produces 29% more manufactured goods than we in the u.s. and emits 317% more co-2. that's over three times the amount of co-2 than the u.s. industrial sector. but despite our low greenhouse gas emissions, the epa will increase our costs and will make it easier for china's carbon-intensive products to be imported. which means the clean power plan will be directly responsible for increasing global emissions. there are consequences to increasing energy costs on the industrial sector, and it's called greenhouse gas leakage. and the epa has failed to address this issue and thus the costs are underestimated. for example, when a state's electricity costs rise due to the power plan companies with multiple manufacturing locations will shift their production to states with lower costs.

along with the greenhouse gas emissions creating state winners and losers. and when they do it will increase the price of electricity to the remaining state rate payers, including the households. if these companies cannot be competitive, they move offshore moving jobs and greenhouse gas emissions accomplishing nothing environmentally. one only needs to look at california. since a.b. 32 to our knowledge, there is not a single energy intensive trade exposed company that has built a new facility in california. and the same goes for the eu under the etus. california is importing their energy-intensive products and they are losing or forfeiting jobs. it is for this reason we would;/zl urge policy makers to hold offshore manufacturing competitors to at least this same carbon content standard as we in the united states. thank you. >> thank you very much.

our next witness is mr. harry al fort who is president and ceo of the national black chamber of commerce. welcome. >> good afternoon, chair capito and distinguished members of the subcommittee. my name is harry alford, i'm the president and ceo of the black chamber of commerce. represents 2.2 million black owned businesses within the united states. i'm here to testify about the environmental protection agency's proposal to regulate greenhouse gas emissions from power plants and the potential impacts of those proposed regulations on energy costs for american businesses, rural communities and families. and particular, i would like to focus on the potential adverse economic and employment impacts of the clean power plan on low-income groups and minorities, including individuals, families and minority businesses. while increased costs often come with increased regulation, the clean power plan in particular seems poised to escalate energy

costs for blacks and hispanics in the united states. according to a recent study commissioned by the national black chamber of commerce the clean power plan would increase black poverty by 23% and hispanic poverty by 26%. result in cumulative job losses of 7 million for blacks and nearly 12 million for hispanics in 2035. and median income, household income by 455 and $550 respectfully in 2035. for these minority and low-income groups, increased costs have impact on their lives, jobs and businesses because a larger percentage of their incomes, revenues are spent on energy costs. what may seem like a nominal increase in energy costs to some will have a much more harmful effect on minorities and low-income groups. our members are very concerned about these potentially devastating economic impacts of

the clean power plan. and we appreciate the opportunity to highlight them for our committee. for the committee. in light of these concerns the national black chamber of commerce undertook an effort to examine the potential economic and employment impacts of the clean power plan on minority's low-income groups. on june 11 2015, the nbcc released a study on the threat of the regulations to low-income groups and minorities. the study finds that the clean power plan will inflict severe and disproportionate economic burdens on poor families, especially minorities. and particular, the rule imposed the most harm on residents of seven states with the highest concentrations of blacks and hispanics. from existing power plants is a slap in the face to poor and minority families. these communities already suffer from high unemployment and poverty rates compared to the

rest of the country. yet, the epa's regressive energy tax threatens to push minorities and low-income americans even further into poverty. i want to highlight some of the key findings of the study. epa rule increases black poverty by 2% and hispanic poverty by 26%. and 2035 job losses totaled $7 million for blacks and $12 million for hispanics. median household income will be $455 and $515 less respectively. compared to whites, spend about 20% and 90% of the income on food. 10% and 5% more on housing, 40% on clothing and 50% and 10% more on utilities respectfully. the role with the highest concentrations of blacks and hispanics. arizona, california florida georgia, illinois, new york and

texas. the study demonstrates that the epa clean power plan would harm minorities' health by forcing tradeoffs between housing, food energy, and inability to pay energy bills is second only to the inability to pay rent as leading cause of homelessness. groups are not only entities expressing concerns about the clean power plan. states which would be responsible for implementing the clean power plan have criticized the plan for numerous deficiencies. officials from 28 states said that the epa should withdraw its proposal citing concerns as higher energy costs threats to reliable and lost jobs. officials from 29 states have said that epa's proposed rule goes well beyond the agency's legal authority under the clean air act and 15 states have already joined in lawsuit. the nbcc totally supports the

arena act, s-3124, and we certainly encourage all members of this committee to put the bill to vote and make it law. thank you so much. >> thank you very much. our next witness is joseph j. martins, commissioner new york state, department of environmental conservation welcome, mr. commissioner. thank you. >> thank you. chair capito, ranking member, and members of the subcommittee thank you for providing me with the opportunity to testify this afternoon. my name is joe martens. and i'm the commissioner as pointed out, also the vice chair of the board of directors. a program of nine northeastern states that uses market principles to reduce greenhouse gas emissions from the sector. i thank the committee for providing me the opportunity to discuss the success that we've had in reducing carbon emissions in new york while creating jobs and keeping energy bills in check.

i've spoken with many of my colleagues from other states across the country and i've heard many of them discuss their concerns about the rule. i recognize that each state faces different circumstances, but i think that in reggie, we have a successful model in reducing emissions while creating jobs and reducing energy bills. other states can use similar approaches to comply with the clean power plan, tailored to their own circumstances. reggie was started in 2005 by a bipartisan group of northeastern and mid-atlantic governors. it sets a declining cap on emissions and allows the market to determine efficiently where the emission reductions will occur. in addition to their participation in reggie each of the states has aggressive energy efficiency and renewable energy programs. under a single emission cap and ensures that the carbon reductions from these programs are realized and accounted for. in proceeds from reggie allowance options helps fund many of these initiatives

creating a virtueous cycle. our program has been a resounding success. the state greatly exceeded their original 10% reduction target achieving a 40% reduction by 2012. to achieve even greater reduction, the reggie state acted to further reduce the cap to 50% below 2005 levels in 2020. we achieved this reduction in an economy that grew 8% over the period from 2005 to 2013, adjusted for inflation. in new york, we have realized economic benefits from reggie and associated programs including creating jobs and reducing energy bills. for example, governor cuomo's new york sun program has made new york fourth in the nation for solar jobs. as of the end of 2014 we've committed more than 550 million in proceeds from the auction of reggie emission allowances to programs that will provide energy bill savings of over $1 billion or other benefits to over 130,000 households and

2,500 businesses. beneficiaries of programs funded by proceeds include low-income families and businesses. for example, two energy efficiency programs that are targeted specifically at income-eligible families are providing 100,000 low and moderate income families with more than $80 million in cumulative energy bill savings. and to those who say that reducing emissions will cause electric rates for businesses to rise, we've actually reduced industrial electricity rates while reducing carbon emissions from 50% over the national average to 13% below. we've enjoyed similar outcomes across the reggie region. an independent analysis undertaken by the highly respected analysis group concludes that the reinvestment of auction proceeds from the first three years of the program is reducing total energy bills in the reggie regions by 1. 3 billion, adding 1.6 billion to the regional economy and creating an estimated 16,000 jobs.

reducing emissions also provides substantial public health benefits including saving lives, reducing illness, health care costs and lost workdays. our experience demonstrates a group of states can reduce emissions substantially and grow the economy at the same time. therefore, instead of asking whether we can afford to reduce that pollution, a more pertinent question is whether we can afford not to act now to reduce the emissions that are causing our climate to change. in new york, we are already experiencing a destructive effects of climate-driven extreme weather. three years ago, hurricane sandy decimated many communities and tens of thousands of homes in new york and new jersey at a cost of $67 billion. over 70 lives lost in the area struck by the storm. a year earlier, hurricanes irene and lee caused 66 deaths and 17 billion in damage. these storms disproportionately harmed low-income families and smaller businesses and communities located in low-lying