E&E News: In final House appearance, Perciasepe spars with Republicans over waters rule, trust issues
By Amanda Peterka, E&E Reporter
July 31, 2014
The House Small Business Committee yesterday sent departing U.S. EPA Deputy Administrator Bob Perciasepe off with a contentious hearing over agency regulations.
Throughout the hearing, House lawmakers sparred over the agency's recent proposal to define which waters of the United States are included under the jurisdiction of the Clean Water Act. They jumped on comments by Perciasepe that the rule would not have a direct impact on small businesses or expand the scope of EPA's authority under the Clean Water Act.
It was Perciasepe's last time in the congressional hot seat before he leaves EPA in a couple of weeks to head a climate change group. Although Perciasepe did not give an inch in defending the waters rule, he expressed a desire for the agency to work more with Congress.
"I'm trying to explain what our intent is and trying to build a bridge," he said.
But Republican members of the committee said there were deep trust issues impeding cooperation.
"Nobody trusts the EPA," Rep. Chris Collins (R-N.Y.) said.
Perciasepe, who has been the agency's longest-serving deputy administrator, will take the helm of the Center for Climate and Energy Solutions on Aug. 11, succeeding Eileen Claussen. EPA announced his departure two weeks ago.
During his time as deputy administrator, Perciasepe has taken the brunt of congressional furor over agency rulemakings, appearing as the agency's representative at numerous hearings.
Though yesterday's hearing touched at times on EPA's long-awaited rules for reducing carbon dioxide emissions at power plants, talk of the waters rule dominated the hearing. The proposed rule released earlier this year seeks to clarify which streams and wetlands receive automatic protection under the Clean Water Act.
Farmers have lashed out at the proposal, calling it a federal power grab and raising concerns that they would be required to obtain permits for everyday farming activities.
Perciasepe sought to quell some of those concerns, saying that the rule that merely defines where other parts of the Clean Water Act will apply.
"If you have a permit now, you have to get a permit under this. But if you don't have to get a permit now, it's most likely you would not need a permit under this," he said.
But House Small Business Chairman Sam Graves (R-Mo.) said that before issuing the rule, the agency should have gone through the Regulatory Flexibility Act, a law that requires an agency to convene small-business review panels to determine potential impacts.
"I think a lot of these concerns may have been identified if the EPA had complied with the RFA," he said.
Perciasepe said EPA determined that the rule would not have direct impacts on small businesses.
"It doesn't directly impose any requirements on anybody if they're not discharging pollutants," he said. "So it doesn't directly impact large businesses or small businesses in any way."
But those comments drew some scorn and disbelief from Republican members of the committee. Not going through that review process is "either extremely naïve and incompetent, or it's arrogance to the highest degree," said Rep. Blaine Luetkemeyer (R-Mo.).
Even ranking member Nydia Velazquez (D-N.Y.) said she was concerned that EPA hadn't more fully examined the rule's impact on small businesses.
"I just do not understand how do you come to the conclusion that there is not direct impact on small entities, because you haven't provided us the process in which you arrived to that conclusion," she said.
But Velazquez distanced herself from statements made at the hearing that Congress -- both Republicans and Democrats -- do not trust the agency and believe it should completely start over with the waters rule.
Perciasepe also said he doesn't believe "that most people don't trust EPA" and dismissed the idea of withdrawing the rule. Congress, he said, has put the agency in a difficult position in light of Supreme Court directions that the agency clarify the scope of its authority over waters in the United States.
"I have a Supreme Court chief who's saying, 'Why don't the agencies do this?'" Perciasepe said. "There are three branches of government. I have one branch [the legislative] who wrote to me when I was acting administrator saying please do a rulemaking. Now I have that branch saying maybe we should withdraw it."
But those comments led one lawmaker, Rep. Richard Hanna (R-N.Y.), to accuse Perciasepe of falling back on the Supreme Court and not taking responsibility for EPA's actions. Perciasepe was "not going anywhere" with his testimony if the goal was increasing the trust between EPA and Congress, he said.
Members of the committee only briefly acknowledged Perciasepe's impending departure.
"I got to give you a lot of credit," Collins said. "I think you knew you were coming into the lion's den today, and here you are. It's hard to defend the indefensible, and that's what your agency has sent you to do."