[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
STAKEHOLDER PERSPECTIVES ON THE IMPACTS
OF THE BIDEN ADMINISTRATION'S WATERS
OF THE UNITED STATES (WOTUS) RULE
=======================================================================
(118-3)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 8, 2023
__________
Printed for the use of the
Committee on Transportation and Infrastructure
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online at: https://www.govinfo.gov/committee/house-
transportation?path=/browsecommittee/chamber/house/committee/
transportation
__________
U.S. GOVERNMENT PUBLISHING OFFICE
51-661 PDF WASHINGTON : 2023
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Sam Graves, Missouri, Chairman
Rick Larsen, Washington, Eric A. ``Rick'' Crawford,
Ranking Member Arkansas
Eleanor Holmes Norton, Daniel Webster, Florida
District of Columbia Thomas Massie, Kentucky
Grace F. Napolitano, California Scott Perry, Pennsylvania
Steve Cohen, Tennessee Brian Babin, Texas
John Garamendi, California Garret Graves, Louisiana
Henry C. ``Hank'' Johnson, Jr., Georgiavid Rouzer, North Carolina
Andre Carson, Indiana Mike Bost, Illinois
Dina Titus, Nevada Doug LaMalfa, California
Jared Huffman, California Bruce Westerman, Arkansas
Julia Brownley, California Brian J. Mast, Florida
Frederica S. Wilson, Florida Jenniffer Gonzalez-Colon,
Donald M. Payne, Jr., New Jersey Puerto Rico
Mark DeSaulnier, California Pete Stauber, Minnesota
Salud O. Carbajal, California Tim Burchett, Tennessee
Greg Stanton, Arizona, Dusty Johnson, South Dakota
Vice Ranking Member Jefferson Van Drew, New Jersey,
Colin Z. Allred, Texas Vice Chairman
Sharice Davids, Kansas Troy E. Nehls, Texas
Jesus G. ``Chuy'' Garcia, Illinois Lance Gooden, Texas
Chris Pappas, New Hampshire Tracey Mann, Kansas
Seth Moulton, Massachusetts Burgess Owens, Utah
Jake Auchincloss, Massachusetts Rudy Yakym III, Indiana
Marilyn Strickland, Washington Lori Chavez-DeRemer, Oregon
Troy A. Carter, Louisiana Chuck Edwards, North Carolina
Patrick Ryan, New York Thomas H. Kean, Jr., New Jersey
Mary Sattler Peltola, Alaska Anthony D'Esposito, New York
Robert Menendez, New Jersey Eric Burlison, Missouri
Val T. Hoyle, Oregon John James, Michigan
Emilia Strong Sykes, Ohio Derrick Van Orden, Wisconsin
Hillary J. Scholten, Michigan Brandon Williams, New York
Valerie P. Foushee, North Carolina Marcus J. Molinaro, New York
Mike Collins, Georgia
Mike Ezell, Mississippi
John S. Duarte, California
Aaron Bean, Florida
Subcommittee on Water Resources and Environment
David Rouzer, North Carolina,
Chairman
Grace F. Napolitano, California, Daniel Webster, Florida
Ranking Member Thomas Massie, Kentucky
John Garamendi, California Brian Babin, Texas
Emilia Strong Sykes, Ohio, Mike Bost, Illinois
Vice Ranking Member Doug LaMalfa, California
Jared Huffman, California Bruce Westerman, Arkansas
Frederica S. Wilson, Florida Brian J. Mast, Florida
Patrick Ryan, New York Jenniffer Gonzalez-Colon,
Val T. Hoyle, Oregon Puerto Rico
Hillary J. Scholten, Michigan Burgess Owens, Utah
Julia Brownley, California Chuck Edwards, North Carolina
Mark DeSaulnier, California Eric Burlison, Missouri
Greg Stanton, Arizona John James, Michigan
Chris Pappas, New Hampshire Derrick Van Orden, Wisconsin
Seth Moulton, Massachusetts Brandon Williams, New York
Troy A. Carter, Louisiana Mike Collins, Georgia
Eleanor Holmes Norton, Mike Ezell, Mississippi
District of Columbia John S. Duarte, California
Rick Larsen, Washington (Ex Officio) Sam Graves, Missouri (Ex Officio)
CONTENTS
Page
Summary of Subject Matter........................................ vii
STATEMENTS OF MEMBERS OF THE COMMITTEE
Hon. David Rouzer, a Representative in Congress from the State of
North Carolina, and Chairman, Subcommittee on Water Resources
and Environment, opening statement............................. 1
Prepared statement........................................... 3
Hon. Grace F. Napolitano, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on Water
Resources and Environment, opening statement................... 4
Prepared statement........................................... 6
Hon. Sam Graves, a Representative in Congress from the State of
Missouri, and Chairman, Committee on Transportation and
Infrastructure, opening statement.............................. 7
Hon. Rick Larsen, a Representative in Congress from the State of
Washington, and Ranking Member, Committee on Transportation and
Infrastructure, opening statement.............................. 8
Prepared statement........................................... 10
WITNESSES
Garrett Hawkins, President, Missouri Farm Bureau, oral statement. 32
Prepared statement........................................... 33
Alicia Huey, Chairman of the Board, National Association of Home
Builders, oral statement....................................... 38
Prepared statement........................................... 40
Mark Williams, Environmental Manager, Luck Companies, on behalf
of the National Stone, Sand & Gravel Association, oral
statement...................................................... 50
Prepared statement........................................... 52
Susan Parker Bodine, Partner, Earth & Water Law LLC, oral
statement...................................................... 56
Prepared statement........................................... 57
Dave Owen, Harry D. Sunderland Professor of Law and Faculty
Director of Scholarly Publications, University of California
College of Law, San Francisco, oral statement.................. 72
Prepared statement........................................... 74
SUBMISSIONS FOR THE RECORD
Submissions for the Record by Hon. David Rouzer:
Letter of February 7, 2023, to Hon. David Rouzer, Chairman,
Subcommittee on Water Resources and Environment, from
Kristen Swearingen, Vice President, Legislative and
Political Affairs, Associated Builders and Contractors..... 11
Statement of the American Road and Transportation Builders
Association................................................ 12
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and
Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. David Rouzer,
Chairman, and Hon. Grace F. Napolitano, Ranking Member,
Subcommittee on Water Resources and Environment, from Cindy
V. Chetti, Senior Vice President, Government Affairs,
National Multifamily Housing Council, and Gregory S. Brown,
Senior Vice President, Government Affairs, National
Apartment Association...................................... 14
Letter of February 8, 2023, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from Nile Elam, Senior
Director, Energy and Resources Policy, National Association
of Manufacturers........................................... 16
Letter of February 8, 2023, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from Kevin Kuhlman,
Vice President, Federal Government Relations, National
Federation of Independent Business Inc..................... 17
Letter of February 8, 2023, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from the National
Mining Association......................................... 18
Letter of January 30, 2023, to President Joseph R. Biden,
Jr., from the Republican Governors Association............. 20
Submissions for the Record by Hon. Grace F. Napolitano:
Comment, ``State Protection of Nonfederal Waters: Turbidity
Continues,'' James McElfish, Environmental Law Reporter,
September 2022............................................. 5
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and
Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, from the Clean Water for
All Coalition.............................................. 21
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and
Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. David Rouzer,
Chairman, and Hon. Grace F. Napolitano, Ranking Member,
Subcommittee on Water Resources and Environment, from Kate
Miller, Director of Government Affairs, Trout Unlimited.... 23
Letter of February 7, 2023, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from Douglas J. Austen,
Ph.D., Executive Director, American Fisheries Society...... 27
Letter of February 7, 2022, to Ms. Damaris Christensen,
Oceans, Wetlands and Communities Division, Office of Water,
Environmental Protection Agency, and Ms. Stacey Jensen,
Office of the Assistant Secretary of the Army for Civil
Works, Department of the Army, from Jennifer Harriger,
Manager, Environmental Planning Section, Metropolitan Water
District of Southern California............................ 83
Letter of February 7, 2022, to the U.S. Environmental
Protection Agency and U.S. Army Corps of Engineers from
Attorneys General of California, New York, Connecticut,
Illinois, Maine, Maryland, Massachusetts, Michigan, New
Mexico, North Carolina, Oregon, Vermont, Washington,
Wisconsin, the District of Columbia, the City of New York,
and the California State Water Resources Control Board..... 88
Map Showing Percentage of Intermittent Stream Length by
Watershed.................................................. 89
Letter of February 17, 2023, to Hon. Sam Graves, Chairman,
and Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. David Rouzer,
Chairman, and Hon. Grace F. Napolitano, Ranking Member,
Subcommittee on Water Resources and Environment, from the
American Sportfishing Association et al.................... 121
APPENDIX
Question from Hon. Greg Stanton to Garrett Hawkins, President,
Missouri Farm Bureau........................................... 123
Question from Hon. Greg Stanton to Alicia Huey, Chairman of the
Board, National Association of Home Builders................... 124
Questions to Dave Owen, Harry D. Sunderland Professor of Law and
Faculty Director of Scholarly Publications, University of
California College of Law, San Francisco, from:
Hon. Greg Stanton............................................ 126
Hon. Troy A. Carter.......................................... 128
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
February 3, 2023
SUMMARY OF SUBJECT MATTER
TO: LMembers, Subcommittee on Water Resources and
Environment
FROM: LStaff, Subcommittee on Water Resources and
Environment
RE: LSubcommittee Hearing on ``Stakeholder
Perspectives on the Impacts of the Biden Administration's
Waters of the United States (WOTUS) Rule''
_______________________________________________________________________
I. PURPOSE
The Subcommittee on Water Resources and Environment of the
Committee on Transportation and Infrastructure will meet on
Wednesday, February 8, 2023, at 10:00 a.m. ET in Room 2167 of
the Rayburn House Office Building to receive testimony on
``Stakeholder Perspectives on the Impacts of the Biden
Administration's Waters of the United States (WOTUS) Rule.'' At
the hearing Members will receive testimony from representatives
from Earth & Water Law LLC, the Missouri Farm Bureau, National
Stone, Sand & Gravel Association, National Association of Home
Builders, and the UC College of the Law, San Francisco. The
hearing will examine the rule from the Environmental Protection
Agency (EPA) and United States Army Corps of Engineers (Corps)
redefining of the term ``waters of the United States,'' under
the Clean Water Act, and the regulatory impact the rule may
have on interested stakeholders.
II. BACKGROUND
``WATERS OF THE UNITED STATES'' IN THE CLEAN WATER ACT
Congress enacted the 1972 amendments to the Federal Water
Pollution Control Act, commonly referred to as the Clean Water
Act (CWA), with the goal to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters.'' \1\ The CWA protects ``navigable waters,'' which is
defined in the CWA as the ``waters of the United States,
including the territorial seas.'' \2\
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\1\ CWA, Pub. L. 92-500, 86 Stat. 816.
\2\ Id. at Sec. 502(7).
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However, the CWA does not further define the term ``waters
of the United States'' (WOTUS), leaving it up to EPA and the
Corps to define which waters are subject to Federal regulation
under the CWA. Since the CWA grants authority to EPA and the
Corps to implement the Act, EPA and the Corps have promulgated
several sets of rules interpreting the agencies' jurisdiction
over WOTUS and the corresponding scope of CWA authority.
The definition of WOTUS governs the application of CWA
programs--including tribal and state water quality
certification programs, pollutant discharge permits, and oil
spill prevention and planning programs. For example, Section
303, which requires states to develop water quality standards
for their waters such as Total Maximum Daily Load (TMDL),
Section 311, which prohibits the discharge and mandates
reporting of oil and other hazardous substances into WOTUS, and
Section 401, which outlines state approval for Federal permits
that would affect a WOTUS, are all dependent on the definition
of WOTUS.\3\
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\3\ Id. at Sec. Sec. 303, 311, 401.
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In addition, the CWA prohibits the discharge of any
pollutant by any person, unless in compliance with one of the
enumerated permitting provisions in the Act. The two permitting
authorities in the CWA are Section 402 (the National Pollutant
Discharge Elimination System, or ``NPDES'') for discharges of
pollutants from point sources, and Section 404, for discharges
of dredged or fill material.\4\ Both Sections 402 and 404
govern discharges into ``navigable waters,'' and thus are
directly dependent on the definition of WOTUS.
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\4\ Id. at Sec. Sec. 402(b) and 404.
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SUPREME COURT CASES
There has been a substantial amount of litigation in the
Federal courts on the scope of CWA jurisdiction over the years,
including multiple United States Supreme Court cases.
In 1985, the Supreme Court took up United States v.
Riverside Bayview Homes, Inc. (Riverside Bayview).\5\ The Court
unanimously upheld the Corps' jurisdiction over wetlands
adjacent to jurisdictional waters and held that such wetlands
were ``waters of the United States'' under the CWA.\6\
Following Riverside Bayview, EPA and the Corps promulgated
regulations in 1986 and 1988, which remained in effect for much
of the past several decades.\7\
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\5\ United States v. Riverside Bayview Homes, 474 U.S. 121 (1985).
\6\ See id.
\7\ Final Rule for Regulatory Programs of the Corps of Engineers,
51 Fed. Reg. 41206 (November 13, 1986); Clean Water Act Section 404
Program Definitions and Permit Exemptions, Section 404 State Regulation
Programs, 53 Fed. Reg. 20764 (June 6, 1988).
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In 2001, the Court ruled in Solid Waste Agency of Northern
Cook County v. Army Corps of Engineers (``SWANCC''), evaluating
whether CWA jurisdiction included an abandoned sand and gravel
pit which had become a habitat for migratory birds.\8\ A 5-4
decision rejected the Corps' claim that CWA jurisdiction
extended over isolated waters purely based on their usage by
migratory birds, but did not affect the agencies' underlying
regulations defining WOTUS.\9\
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\8\ Solid Waste Agency of Northern Cook County (SWANCC) v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001).
\9\ See generally Stephen P. Mulligan, Evolution of the meaning of
``waters of the United States'' in the Clean Water Act, Cong. Research
Service (R44585), updated March 5, 2019 [Hereinafter CRS Report R44585]
available at https://www.crs.gov/reports/pdf/R44585/R44585.pdf.
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In 2006, the Court issued a 4-1-4 opinion in Rapanos v.
United States (Rapanos) that did not produce a clear, legal
standard on determining jurisdiction under the CWA.\10\ The
Rapanos decision produced three distinct opinions on the
appropriate scope of Federal authorities under the CWA. Justice
Scalia's plurality opinion provided a ``relatively permanent/
flowing waters'' test with ``continuous surface connection.''
\11\ Writing alone, Justice Kennedy proposed a ``significant
nexus'' test for WOTUS, concluding that a case-by-case basis
for determining navigable waters was appropriate.\12\ Justice
Stevens' dissenting opinion advocated for maintenance of
existing EPA and Corps authority over waters and wetlands.\13\
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\10\ Rapanos v. United States, 547 U.S. 715 (2006).
\11\ Id. at 739 and 742.
\12\ Id. at 782 (Kennedy, J., concurring).
\13\ See id. at 788 (Stevens, J., dissenting).
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Following the SWANCC and Rapanos decisions, EPA and the
Corps issued several guidance documents interpreting how the
agencies would implement the Supreme Court decisions. Under
2008 guidance, CWA jurisdiction over navigable waters would be
asserted if such waters meet either the Scalia (``relatively
permanent water'') or Kennedy (``significant nexus'')
tests.\14\
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\14\ EPA & Dep't of the Army, Revised Mem. Clean Water Act
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v.
United States and Carabell v. United States (Dec. 2, 2008) available at
https://www.epa.gov/sites/default/files/2016-02/documents/
cwa_jurisdiction_following_rapanos120208.pdf.
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In January 2022, the Supreme Court announced it would hear
arguments in a case that could also affect the definition of
WOTUS: Sackett v. EPA (Sackett).\15\ The Sackett case raises
the question of whether certain wetlands are WOTUS, and thus
subject to CWA jurisdiction, and could be resolved with a
narrow ruling based solely on the facts of the case.\16\
However, Sackett may also be an opportunity for the Supreme
Court to rule broadly on what the proper test is for
determining WOTUS.\17\
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\15\ Sackett v. EPA, cert. granted, (21-454) 142 S. Ct. 896 (Jan.
24, 2022).
\16\ Ariel Wittenberg & Hannah Northey, Can EPA's Clean Water Rule
survive the courts, E&E News, Jan. 3, 2023, available at https://
www.eenews.net/articles/can-epas-clean-water-act-rule-survive-the-
courts [Hereinafter Wittenberg & Northey].
\17\ Id.
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The petitioners in the Sackett case own a parcel of land in
Idaho which sits across the street from an area of wetlands
that drains into an unnamed tributary of a creek, which in turn
flows into Priest Lake.\18\ The Sacketts' efforts to build on
their parcel of land, around thirty feet from the area of
wetlands, has been the subject of a now decades-long dispute
with EPA and the Corps regarding CWA jurisdiction and
regulatory process.\19\ The petitioners in the case have urged
the Supreme Court to review the Rapanos case and adopt Justice
Scalia's plurality opinion.\20\
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\18\ Kate R. Bowers, Supreme Court revisits scope of ``waters of
the United States'' (WOTUS) under the Clean Water Act, Cong. Research
Service Legal Sidebar (LSB10707), March 11, 2022, available at https://
www.crs.gov/reports/pdf/LSB10707/LSB10707.pdf.
\19\ Id.
\20\ Transcript of Oral Argument, Sackett v. EPA (21-454),
available at https://www.supremecourt.gov/oral_arguments/
argument_transcripts/2022/21-454_g31h.pdf.
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The Supreme Court heard oral arguments in the Sackett case
on October 3, 2022.\21\ It is currently unclear when a decision
in the case could be released. The implications of the Sackett
decision on the current WOTUS definition and the CWA will
likely depend on the scope of the Supreme Court's ruling.\22\
For example, if the majority of the Court rules against the
``significant nexus'' test laid out by Justice Kennedy in
Rapanos, it could require a significant alteration of the Biden
Administration's most recent WOTUS definition.\23\ Similarly,
the Court could leave the Biden WOTUS definition in place and
issue a narrow opinion based on the EPA's application of
adjacency and the specific facts of the Sackett case.\24\
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\21\ Id.
\22\ See Wittenberg & Northey, supra note 16.
\23\ Id.
\24\ Id.
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OBAMA-ERA WOTUS RULE
In 2015, the Obama Administration published in the Federal
Register regulatory changes to the definition of WOTUS that
allowed the Corps and EPA to utilize both the ``relatively
permanent waters'' or ``significant nexus'' concepts.\25\ This
rule, known as the Clean Water Rule, redefined WOTUS in the
agencies' regulations for the first time since the 1980s.
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\25\ Clean Water Rule: Definition of ``waters of the United
States;'' Final Rule, 80 Fed. Reg. 37054 (June 29, 2015).
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The 2015 Clean Water Rule maintained some aspects of the
2008 guidance, including the three-tiered jurisdictional
analysis of waters being categorically jurisdictional,
jurisdictional on a case-by-case basis subject to the
``significant nexus'' test, or categorically excluded from
being a WOTUS.\26\
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\26\ See id.
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The Clean Water Rule also incorporated new features not
found in the 2008 guidance, including definitions and criteria
which established when waters fell into each of the three
tiers, such as ``adjacent,'' ``neighboring,'' ``floodplain,''
``tributary,'' ``wetlands'' and ``significant nexus.'' \27\
Some of these changes from the 2008 guidance expanded waters
that could be classified as categorically WOTUS (rather than
demonstrating CWA jurisdiction under a significant nexus
analysis), and subject to CWA jurisdiction and regulation.\28\
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\27\ Id.
\28\ Laura Gatz & Kate R. Bowers, Redefining waters of the United
States (WOTUS): Recent developments, Cong. Research Service (R46927),
updated July 8, 2022 [Hereinafter CRS Report R46927], available at
https://www.crs.gov/reports/pdf/R46927/R46927.pdf.
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While the Corps and EPA contended that their primary intent
in the 2015 Clean Water Rule was simply to clarify regulatory
jurisdiction, stakeholder reaction to the rule was mixed. Some
viewed the rule as an expansion of CWA jurisdiction, while
others argued that it excluded too many waters from Federal
jurisdiction.\29\ Following the Clean Water Rule's publishing,
many states, industry stakeholders, and several environmental
groups challenged the legality of the rule in courts across the
country, continuing the mire of litigation that plagued the
definition of WOTUS over the last two decades.\30\
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\29\ See e.g., Carolina Bolado, Fla., others sue EPA, Corps, over
Clean Water Act expansion, Law360 (June 30, 2015) available at https://
www.law360.com/articles/674120/fla-others-sue-epa-corps-over-clean-
water-act-expansion; Press Release, Center for Biological Diversity,
EPA and Army Corps release weak Clean Water Rule (May 27, 2015)
available at https://www.biologicaldiversity.org/news/press_releases/
2015/clean-water-rule_05-272015.html.
\30\ CRS Report R46927, supra note 28.
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TRUMP-ERA WOTUS RULE
Following the 2015 Clean Water Rule taking effect, the
Trump Administration, favoring a WOTUS definition more
consistent with the Scalia opinion in Rapanos, took steps to
amend and rescind the Obama-Era rule.\31\ In 2017, President
Trump signed Executive Order 13778, ``Restoring the Rule of
Law, Federalism, and Economic Growth by Reviewing the `Waters
of the United States' Rule,'' which directed EPA and the Corps
to review the 2015 Clean Water Rule and consider proposing a
new rule to rescind or revise that rule.\32\
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\31\ See e.g., Press Release, EPA, U.S. Army repeal 2015 Rule
defining ``waters of the United States'' ending regulatory patchwork
(Sept. 12, 2019) available at https://www.epa.gov/newsreleases/epa-us-
army-repeal-2015-rule-defining-waters-united-states-ending-regulatory-
patchwork.
\32\ Exec. Order No. 13778, (February 28, 2017), available at
https://www.govinfo.gov/content/pkg/DCPD-201700147/pdf/DCPD-
201700147.pdf.
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EPA and the Corps responded to the Executive Order in two
steps. First, the agencies rescinded the Clean Water Rule, and
recodified the 2008 guidance (and its use of either Rapanos-
based test for WOTUS) in effect prior to the 2015 Rule.\33\
Second, in 2020, EPA and the Corps published in the Federal
Register the Navigable Waters Protection Rule, which redefined
WOTUS.\34\
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\33\ Definition of ``waters of the United States''--Recodification
of Pre-Existing Rules, 84 Fed. Reg. 56626 (Oct. 22, 2019).
\34\ The Navigable Waters Protection Rule: Definition of ``Waters
of the United States,'' 85 Fed. Reg. 22250 (April 21, 2020)
[Hereinafter Navigable Waters Protection Rule].
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Overall, the Navigable Waters Protection Rule narrowed the
scope of waters and wetlands that were considered WOTUS and
therefore fell under Federal jurisdiction compared to both the
2015 Clean Water Rule and the pre-2015 rules.\35\ The Navigable
Waters Protection Rule was structured to focus the WOTUS
definition primarily on relatively permanent bodies of water
that provide surface flow to navigable waters or the
territorial seas in a typical year.\36\ The 2020 Rule also
moved away from the ``significant nexus'' test. The Trump-Era
Rule maintained wetlands and adjacent waters as WOTUS but
focused the definitions of ``wetlands'' and ``adjacent waters''
as compared to prior regulations.\37\
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\35\ CRS Report R46927, supra note 28 at 7.
\36\ Supra note 34 at 22273-22274.
\37\ Id. at 22251, 22273.
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As with the 2015 Clean Water Rule, the 2020 Navigable
Waters Protection Rule was met with mixed reactions. While some
praised the Navigable Waters Protection Rule as limiting
government overreach and clarifying uncertainty of WOTUS under
the CWA, others criticized the Rule for potential negative
effects on water quality and resulting in regulatory
inconsistency among state programs.\38\ Again, the 2020 Rule
was met with a myriad of legal challenges and litigation in the
courts, similar to the 2015 Rule.\39\
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\38\ See e.g. Letter from Gregory Ugalde, Chairman of the Board,
Nat'l Ass'n of Homebuilders, to EPA Administrator Andrew Wheeler (March
2020) available at https://www.nahb.org/-/media/NAHB/advocacy/docs/
industry-issues/waters-of-the-us/wotus-analysis-2020.pdf; Press
Release, Waterkeeper Alliance, ``Navigable Water Protection Rule''
guarantees widespread pollution of our Nation's waters, (Feb. 13,
2020), available at https://waterkeeper.org/news/navigable-water-
protection-rule-guarantees-widespread-pollution-of-our-nations-waters.
\39\ See CRS Report R44585, supra note 9.
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III. WATERS OF THE UNITED STATES--BIDEN ADMINISTRATION RULE
Continuing the back-and-forth nature of WOTUS definitions
under various Presidential Administrations, in 2021, the Biden
Administration announced that it would be repealing the Trump
Administration's Navigable Waters Protection Rule.\40\ To begin
with, shortly after taking office in January 2021, President
Biden signed an Executive Order revoking President Trump's
Executive Order directing EPA and the Corps to revise and
rescind the Clean Water Rule.\41\ In addition, EPA sent a
letter to the U.S. Department of Justice (DOJ) in which EPA
requested DOJ seek stays to legal challenges to the Navigable
Waters Protection Rule, while EPA reviewed the Rule.\42\
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\40\ Press Release, White House, Fact Sheet: List of Agency Actions
for Review, (Jan. 20, 2021) available at https://www.whitehouse.gov/
briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-
actions-for-review.
\41\ Exec. Order No. 13990, (Jan. 20, 2021), available at https://
www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01765.pdf.
\42\ Letter from Melissa Hoffer, Acting General Counsel, EPA, to
Jean E. Williams & Bruce S. Gelber, Environmental and Natural Resources
Division, DOJ, (Jan. 21, 2021).
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In June of 2021, EPA and the Corps officially announced
their intent to revise the WOTUS definition.\43\ Following a
rulemaking process intended to return the regulatory landscape
to pre-2015 Clean Water Rule implementation and gauge
stakeholder perspectives, the agencies issued a proposed Rule
to change the definition of WOTUS in December 2021.\44\
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\43\ Press Release, EPA, EPA, Army announce intent to revise
definition of WOTUS, (June 9, 2021) available at https://www.epa.gov/
newsreleases/epa-army-announce-intent-revise-definition-wotus.
\44\ Revised definition of ``waters of the United States'' Proposed
Rule, 86 Fed. Reg. 69372 (Dec. 7, 2021).
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On December 30, 2022, EPA and the Corps released their
final ``Revised Definition of the `Waters of the United States'
'' Rule, which is scheduled to go into effect on March 20,
2023.\45\ The 2022 WOTUS definition is based largely upon the
pre-2015 regulations, while again authorizing CWA jurisdiction
under either the ``relatively permanent waters'' or
``significant nexus'' test concepts.\46\
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\45\ Revised definition of ``waters of the United States'' Final
Rule, 88 Fed Reg. 3004 (Jan. 18, 2023).
\46\ Id.
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Once more, initial public feedback to the latest definition
has been mixed. Some stakeholders have lauded it for returning
to a WOTUS definition viewed as more consistent with
Congressional intent, as outlined in the goals of the CWA.\47\
However, others have been critical of the definition for
possibly adding uncertainty to CWA regulatory processes and for
Federal overreach beyond Congressional intent.\48\
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\47\ See Press Release, EarthJustice, EPA Finalizes Rule Protecting
`Waters of the United States', (Dec. 30, 2022) available at https://
earthjustice.org/news/press/2022/epa-finalizes-rule-for-protecting-
waters-of-the-united-states.
\48\ See Press Release, American Farm Bureau Federation, EPA wrong
about New WOTUS Rule, (Jan. 4, 2023) available at https://www.fb.org/
viewpoints/epa-wrong-about-new-wotus-rule.
---------------------------------------------------------------------------
IV. WITNESSES
LMr. Garrett Hawkins, President, Missouri Farm
Bureau
LMs. Alicia Huey, Chairman, National Association
of Home Builders
LMr. Mark Williams, Environmental Manager, Luck
Companies, on behalf of National Stone, Sand & Gravel
Association
LMs. Susan Parker Bodine, Partner, Earth & Water
Law LLC
LMr. Dave Owen, Professor of Law and Faculty
Director of Scholarly Publications, UC College of the Law, San
Francisco
STAKEHOLDER PERSPECTIVES ON THE IMPACTS OF THE BIDEN ADMINISTRATION'S
WATERS OF THE UNITED STATES (WOTUS) RULE
----------
WEDNESDAY, FEBRUARY 8, 2023
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:01 a.m., in
room 2167 Rayburn House Office Building, Hon. David Rouzer
(Chairman of the subcommittee) presiding.
Members present: Mr. Rouzer, Mr. Graves of Missouri, Mr.
Webster of Florida, Mr. Massie, Dr. Babin, Mr. Bost, Mr.
LaMalfa, Mrs. Gonzalez-Colon, Mr. Owens, Mr. Burlison, Mr.
James, Mr. Van Orden, Mr. Williams of New York, Mr. Collins,
Mr. Ezell, Mr. Duarte, Mrs. Napolitano, Mr. Larsen of
Washington, Mr. Garamendi, Mrs. Sykes, Mr. Huffman, Mr. Ryan,
Ms. Hoyle of Oregon, Ms. Scholten, Ms. Brownley, Mr.
DeSaulnier, Mr. Stanton, Mr. Carter of Louisiana, and Ms.
Norton.
Mr. Rouzer. The Subcommittee on Water Resources and
Environment will come to order.
I ask unanimous consent that the chairman be authorized to
declare a recess at any time during today's hearing.
Without objection, so ordered.
I also ask unanimous consent that Members not on the
subcommittee be permitted to sit with the subcommittee at
today's hearing and ask questions.
Without objection, so ordered.
I now recognize myself for the purposes of an opening
statement for 5 minutes.
OPENING STATEMENT OF HON. DAVID ROUZER OF NORTH CAROLINA,
CHAIRMAN, SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
Mr. Rouzer. For more than a half century, the Clean Water
Act has functioned to improve the quality of our Nation's
rivers, lakes, and streams, and we should be proud of what we
have done and acknowledge its success in protecting waters all
around the country.
However, sweeping legislation like the Clean Water Act,
while certainly beneficial, can lead to bureaucratic overreach
and regulatory headaches that often don't make sense to
regulated communities.
Regulations of any type should be simple and easy to
follow. They should carry out the intent of the law in a clear
and transparent manner, making them easily enforced just by
their mere simplicity. There should be no subjectivity or
wiggle room for any bureaucrat or bureaucrats to substitute
their own biases.
Unfortunately, that is not the case here. As I have said
before, there is no greater example of bureaucratic overreach
under the Clean Water Act than the regulatory nightmare of
complying with and understanding the definition of a ``water of
the United States,'' or WOTUS, as we call it.
For the purposes of what the Clean Water Act covers, this
definition is obviously essential and crucial. It is used for
determining a number of applications under the law, including
State and Tribal water quality certification programs,
pollutant discharge permits, and oilspill prevention and
planning programs.
Importantly, this definition is used for determining who
must obtain a Clean Water Act section 404 ``dredge and fill''
permit, which is well known for being a costly and time-
consuming process, and at times simply is used as a roadblock
to stop projects that some don't like, never mind the merits.
I think we will hear a lot about these permits today, as
they can require mitigation, getting into hundreds of thousands
of dollars for everyday activities people undertake to improve
their own private property. If they take an action modifying a
water and later find the area in question indeed was a WOTUS,
they can face staggering fines and even jail time.
The WOTUS question has been debated for decades in court,
and varying Presidential administrations have issued regulatory
definitions of WOTUS that are quite expansive and subjective,
which was most definitely the case with the 2015 Obama EPA
WOTUS rule.
So, I was heartened in 2020 when the Trump administration
released the Navigable Waters Protection Rule, which finally
brought some clarity and predictability to the nagging question
of what a WOTUS should be. The Trump rule balanced State
jurisdiction with Federal responsibilities I thought quite
well.
As such, I was concerned when the Biden administration
released its final version of a new WOTUS definition, notably,
on the Friday before New Year's Eve, in the thick of the hustle
and bustle of the holidays. Imagine that.
This new definition once again places unnecessary burdens
on the communities, farmers, businesses, and industries who
rely on clean water and clarity of the law.
For example, in areas like North Carolina's Seventh
Congressional District, which I represent, storms can be
frequent. Water often lingers in areas that shouldn't be
classified as wetlands. This inconsistency of the law's
interpretation and the ever-changing status of the weather
promises years of headaches and legal wrangling for North
Carolinians and Americans across the board.
Early last year, the Supreme Court announced it would hear
a case on the definition of WOTUS, which highlights the
enormous impacts these rulemakings have on citizens across the
country. In addition to the content of the Biden
administration's WOTUS rule itself, I am particularly
disappointed they forced it on the public before the Supreme
Court's forthcoming decision.
This action irresponsibly risks taxpayer resources and
everyone's time, as the Supreme Court could very well send the
administration back to the drawing board on a WOTUS definition,
ultimately creating even more confusion and uncertainty. It
would be common sense to pause and wait to see what the Supreme
Court decides before jamming this through now.
It is for this reason, along with those I mentioned
previously, that Chairman Graves and I are leading, along with
more than 150 of my Republican colleagues, a Congressional
Review Act resolution that would void this ill-advised
rulemaking. We should not have to take this step, as the Biden
administration did not have to take this action. However, this
is the situation we find ourselves in, and I am confident the
House will pass the resolution.
I am looking forward to hearing from our panel today about
how this administration's actions will impact various sectors
of the economy and our constituents.
[Mr. Rouzer's prepared statement follows:]
Prepared Statement of Hon. David Rouzer, a Representative in Congress
from the State of North Carolina, and Chairman, Subcommittee on Water
Resources and Environment
For more than half a century, the Clean Water Act has functioned to
improve the quality of our Nation's rivers, lakes, and streams. We
should be proud of what we have done and acknowledge its success in
protecting waters all around the country.
However, sweeping legislation like the Clean Water Act--while
certainly beneficial--can lead to bureaucratic overreach and regulatory
headaches that often don't make sense to regulated communities.
Regulations of any type should be simple and easy to follow. They
should carry out the intent of the law in a clear and transparent
manner, making them easily enforced by their mere simplicity. There
should be no subjectivity or wiggle room for any bureaucrat or
bureaucrats to substitute their own biases.
That's not the case here, unfortunately. As I've said before,
there's no greater example of bureaucratic overreach under the Clean
Water Act than with the regulatory nightmare of complying with and
understanding the definition of a ``water of the United States.'' For
the purposes of what the Clean Water Act covers, this definition is
crucial. It is used for determining a number of applications under the
law, including state and tribal water quality certification programs,
pollutant discharge permits, and oil spill prevention and planning
programs.
Importantly, this definition is used for determining who must
obtain a Clean Water Act Section 404 ``dredge and fill'' permit, which
is well-known for being a costly and time-consuming process, and at
times simply used as a roadblock to stop projects that some don't
like--never mind the merits. I think we'll hear a lot about these
permits today, as they can require mitigation--getting into hundreds of
thousands of dollars for everyday activities people undertake to
improve their own private property. If they take an action modifying a
water, and later find the area in question indeed was a WOTUS, they can
face staggering fines and even jail time.
The WOTUS question has been debated for decades in court, and
varying presidential administrations have issued regulatory definitions
of WOTUS that are quite expansive--and subjective--which was most
definitely the case with the 2015 Obama EPA WOTUS Rule.
I was heartened back in 2020, when the Trump Administration
released the Navigable Waters Protection Rule, which finally brought
clarity and predictability to the nagging question of what a WOTUS
should be. The Trump rule balanced state jurisdiction with federal
responsibilities. As such, I was quite concerned when the Biden
Administration released its final version of a new WOTUS definition,
notably, on the Friday before New Year's Eve, in the thick of the
hustle and bustle of the holidays. This new definition, once again,
places unnecessary burdens on the communities, farmers, businesses, and
industries who rely on clean water and clarity of the law.
For example, in areas like North Carolina's Seventh District, where
storms can be frequent, water often lingers in areas that shouldn't be
classified as wetlands. This inconsistency of the law's interpretation
and the ever-changing status of the weather promises years of headaches
and legal wrangling for North Carolinians and Americans.
Early last year, the Supreme Court announced it would hear a case
on the definition of WOTUS, which highlights the enormous impacts these
rulemakings have on citizens across the country. In addition to the
content of the Biden Administration's WOTUS rule itself, I am
particularly disappointed they forced it on the public before the
Supreme Court's forthcoming decision. This decision irresponsibly risks
taxpayer resources and everyone's time, as the Supreme Court could very
well send the administration back to the drawing board on a WOTUS
definition--ultimately creating even more confusion and uncertainty. It
would be common sense to pause and wait to see what the Supreme Court
decides before jamming this through now.
It is for this reason, along with those I mentioned previously,
that Chairman Graves and I are leading, along with more than 150 of my
Republican colleagues, a Congressional Review Act resolution that would
void this ill-advised rulemaking. We should not have to take this step,
as the Biden Administration did not have to take this action. However,
this is the situation we find ourselves in, and I am confident the
House will pass the resolution.
I'm looking forward to hearing from our panel today about how the
Biden Administration's actions will impact various sectors of the
economy and our constituents.
Mr. Rouzer. I now recognize my dear friend, Ranking Member
Napolitano, for 5 minutes for an opening statement.
OPENING STATEMENT OF HON. GRACE F. NAPOLITANO OF CALIFORNIA,
RANKING MEMBER, SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
Mrs. Napolitano. Thank you, my friend, Mr. Chairman, and
congratulations on your new role leading the Subcommittee on
Water Resources and Environment. I am excited to continue
working with you to provide flood control, water quality
protection, environmental restoration, and navigation for all
our local communities across the country.
This subcommittee was extremely successful last Congress in
addressing the bipartisan needs of the Nation. From enactment
of our fifth consecutive and bipartisan WRDA bill--thank you--
to the first reauthorization of the Clean Water SRF since its
inception, to addressing the individual needs of unique
watersheds throughout the country on a bipartisan basis, this
subcommittee addressed our critical water infrastructure needs
while also protecting our environment for future generations.
We look forward to a sixth bipartisan WRDA bill this Congress.
Clean water was not always a partisan issue. In 1972, the
House voted to enact the Clean Water Act over the veto of
former President Nixon by a 10-to-1 margin, and no issue has
more support among American families than the protection of our
Nation's waters.
The history of water pollution protection in this country,
the law, and science require a comprehensive approach to
protecting our rivers, streams, and wetlands. Yet, former
President Trump's ``dirty water rule'' will return us to those
days when the Great Lakes were declared dead and some rivers
literally caught fire.
There should be a strong partnership between the U.S. Army
Corps of Engineers, the U.S. Environmental Protection Agency,
and our States, for each entity plays a responsible role in
ensuring a level playing field of clean water amongst upstream
and downstream States. Yet, our limited experience under the
``dirty water rule'' showed the exact opposite.
To demonstrate, I ask unanimous consent that a summary of
State legal constraints on protecting waters not covered by the
Clean Water Act prepared by the Environmental Law Institute be
made part of today's hearing record.
Mr. Rouzer. Without objection.
[The information follows:]
Comment, ``State Protection of Nonfederal Waters: Turbidity
Continues,'' James McElfish, Environmental Law Reporter, September
2022, Submitted for the Record by Hon. Grace F. Napolitano
The 14-page comment is retained in committee files and is available
online at https://www.eli.org/sites/default/files/files-pdf/
52.10679.pdf.
Mrs. Napolitano. Thank you, sir.
Mr. Chairman, the Clean Water Act ensures our cities, our
businesses, and our farmers have sufficient, safe, and
sustainable supplies of water to meet quality-of-life needs,
our economic and agriculture needs, and our day-to-day
survival, especially in arid regions of the country such as the
ones that I represent in southern California.
The Trump ``dirty water rule'' eliminated Federal
protections on a minimum of 75 percent of streams and wetlands
that have been protected by the act since its inception. These
are the very same waters and wetlands that are critical to
capturing and storing rain and snowmelt to ensure a long-term
water supply and recharge our underground aquifers.
The ``dirty water rule'' removed protections for streams
and wetlands that are a source of drinking water to over 117
million Americans.
We recognize there is a cost to protecting our communities,
our sources of drinking water, and our environment. However, we
believe this cost should be borne by those seeking to pollute
our waterways or to fill our wetlands for their own personal
gain rather than transferring that cost to average Americans or
to downstream States.
The Trump ``dirty water rule'' would have led to higher
water bills for American families and businesses as water
agencies will be forced to clean the polluted water prior to it
being delivered to our taps.
The ``dirty water rule'' would have increased the level of
pollution in our water bodies, increased the downstream risk of
flooding in our communities, polluted sources of our drinking
water, and make hard-working American families pay for the mess
with increased water rates.
We all want certainty. For decades, the regulations
established by former President Reagan and implemented by every
Republican and Democratic administration since then established
a framework to achieve that certainty. But we believe we can
have certainty as well as clean water. We don't have to choose
between them.
The Trump ``dirty water rule'' chose one definition of
certainty--the elimination of Federal protection of our rivers,
streams, and wetlands--over the goals of the Clean Water Act,
which seeks rightly to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.
Now, supporters of the Trump ``dirty water rule'' are
urging the Supreme Court to create even more uncertainty
through a test that could result in increased litigation and
decreased protection of our water bodies.
I applaud the Biden administration for overturning the
Trump ``dirty water rule'' and reinstating decades-old and
well-understood protections of our Nation's rivers, streams,
and wetlands. The Biden administration recognizes that families
and businesses should not be burdened with paying to clean up
the water pollution of others in order to have clean water at
their tap.
We must protect and strengthen the Clean Water Act to
preserve the health of our economy as well as our communities,
our environment, and our water-dependent futures.
Again, Mr. Chairman, congratulations on your new role as
chairman of the Subcommittee on Water Resources and
Environment, and I look forward to working with you.
I yield back the balance of my time.
[Mrs. Napolitano's prepared statement follows:]
Prepared Statement of Hon. Grace F. Napolitano, a Representative in
Congress from the State of California, and Ranking Member, Subcommittee
on Water Resources and Environment
Thank you, Mr. Chairman, and congratulations on your new role
leading the Subcommittee on Water Resources and Environment. I am
excited to continue to work with you to provide flood control, water
quality protection, environmental restoration, and navigation for our
local communities across the country.
This subcommittee was extremely successful last Congress in
addressing the bipartisan needs of the nation. From enactment of our
fifth-consecutive and bipartisan WRDA bill, to the first
reauthorization of the Clean Water SRF since its inception, to
addressing the individual needs of unique watersheds throughout the
county on a bipartisan basis, this subcommittee addressed our critical
water infrastructure needs while also protecting our environment for
future generations. We look forward to a sixth bipartisan WRDA bill
this Congress.
Clean water was not always a partisan issue.
In 1972, the House voted to enact the Clean Water Act over the veto
of former President Nixon by a 10-to-1 margin, and no issue has more
support among American families than the protection of our nation's
waters.
The history of water pollution protection in this country, the law,
and science require a comprehensive approach to protecting our rivers,
streams, and wetlands. Yet, former-President Trump's Dirty Water Rule
will return us to the days when the Great Lakes were declared ``dead,''
and when some rivers literally caught fire.
There should be a strong partnership between the U.S. Army Corps of
Engineers, the U.S. Environmental Protection Agency, and our States,
where each entity plays a responsible role in ensuring a level-playing
field of clean water among upstream and downstream states. Yet, our
limited experience under the Dirty Water Rule showed the exact
opposite.
To demonstrate, I ask unanimous consent that a summary of state
legal constraints on protecting waters not covered by the Clean Water
Act prepared by the Environmental Law Institute be made part of today's
hearing record.
Mr. Chairman, the Clean Water Act ensures our cities, our
businesses, and our farmers, have sufficient, safe, and sustainable
supplies of water, to meet our quality-of-life needs, our economic and
agricultural needs, and our day-to-day survival, especially in the arid
regions of the country, such as I represent in southern California.
The Trump Dirty Water Rule eliminated federal protections on a
minimum of 75 percent of streams and wetlands that have been protected
by the Act since its inception. These are the very same waters and
wetlands that are critical to capturing and storing rain and snowmelt
to ensure a long-term supply of water and recharge our underground
aquifers. The Dirty Water Rule removed protections of the streams and
wetlands that are a source of the drinking water to over 117 million
Americans.
We recognize that there is a cost to protecting our communities,
our sources of drinking water, and our environment. However, we believe
that this cost should be borne by those seeking to pollute our
waterways or fill our wetlands for their own personal gain rather than
transferring that cost to average Americans, or to downstream states.
The Trump Dirty Water Rule would have led to higher water bills for
American families and businesses, as water agencies will be forced to
clean the polluted water, prior to it being delivered to our taps.
The Dirty Water Rule would have increased the level of pollution in
our waterbodies, increased the downstream risk of flooding in our
communities, polluted sources of our drinking water, and made hard
working American families pay for the mess with increased water rates.
We all want certainty--and for decades, the regulations established
by former President Reagan, and implemented by every Republican and
Democratic administration since then, established a framework to
achieve that certainty--but we believe we can have certainty, as well
as clean water--and we don't have to choose between them.
The Trump Dirty Water Rule chose one definition of certainty--the
elimination of federal protection of our rivers, streams, and
wetlands--over the goals of the Clean Water Act, which seeks to
``restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.''
Now, supporters of the Trump Dirty Water Rule are urging the
Supreme Court to create even more uncertainty through a new test that
could result in increased litigation and decreased protection of our
waterbodies.
I applaud the Biden administration for overturning the Trump Dirty
Water Rule and reinstating decades-old and well-understood protections
of our nation's rivers, streams, and wetlands. The Biden Administration
recognizes that families and businesses should not be burdened with
paying to clean up the pollution of others in order to have clean water
at their tap. We must protect and strengthen the Clean Water Act to
preserve the health of our economy as well as our communities, our
environment, and our water-dependent futures.
Again Mr. Chairman, congratulations on your new role as Chairman of
the Subcommittee on Water Resources and Environment. I yield back the
balance of my time.
Mr. Rouzer. I thank the dear lady.
I now recognize the chairman of the full committee, Mr.
Graves, for up to 5 minutes for an opening statement.
Mr. Graves of Missouri. Thank you, Mr. Chairman. I am not
going to take up much time. By the way, happy birthday.
Mr. Rouzer. Thank you. It is actually my brother's birthday
today. Mine will come next week. But we are celebrating early.
OPENING STATEMENT OF HON. SAM GRAVES OF MISSOURI, CHAIRMAN,
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Mr. Graves of Missouri. I am not going to take up much
time.
I believe that the Obama administration, and then following
up with the Biden administration, this is a massive overreach
of regulatory abuse when it comes to the waters of the U.S.
But the thing that sticks in my craw more than anything
else is when people come up to me and tell me that--and I am
specifically speaking to agriculture, but this has created so
much uncertainty with communities, businesses, agriculture,
farmers, you name it--but I get frustrated when people come up
to me and tell me: Why are you so worried about this? It
exempts farmers. It exempts agriculture.
And have I one simple question: If that is the case, then
why are so many of my farmers embroiled in litigation over the
WOTUS definitions? Person after person in my district calls to
say: What do I do? I am being sued over this or I am being sued
over that. I can't build a pond, I can't build any of my
retainment structures, whatever the case may be, and it is
extraordinarily frustrating.
So, when people tell you that this group or that group is
exempt from WOTUS, it is simply not the case.
And with that, I yield back.
Mr. Rouzer. I now recognize the ranking member of the full
committee, Mr. Larsen, for 5 minutes for an opening statement.
OPENING STATEMENT OF HON. RICK LARSEN OF WASHINGTON, RANKING
MEMBER, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Mr. Larsen of Washington. Thank you, Mr. Chair.
If the WOTUS rule was a Member of Congress, I think its
seniority number would be about 75. I have been at this issue
since 2005, I think was the first hearing I attended in this
committee on the WOTUS rule. So, it has been a while.
Hopefully, we can get to an end at some point.
But my State itself is defined by its clean water,
including the health of the Puget Sound, the hundreds of lakes
that we have, thousands of miles of rivers and streams
throughout the State.
People in my State know that rivers, streams, and wetlands
are intrinsically connected, and the health of our waters and
our water-related economy depend on a strong partnership with
the Federal Government and a level playing field among its
upstream and downstream neighbors, including Tribal lands.
The need for a level playing field was the reason why, 50
years ago, this committee passed the original Clean Water Act.
In the 1970s, Congress specifically noted in the legislative
history of the act that a State-by-State, go-it-alone approach
was, quote ``inadequate in every vital aspect,'' end quote, and
left waters severely polluted.
Recently, my State joined several others in highlighting to
the Supreme Court Congress' deliberate decision in 1972 to
replace an ineffective patchwork of State laws with the Clean
Water Act. In doing so, Congress sought to protect the
interests of downstream States that might otherwise suffer the
environmental consequences and economic burdens of weak or
nonexistent pollution control upstream.
That was our shared bipartisan view of clean water for
decades--a strong Federal-State partnership to protect our
waters, where the Corps and the EPA set a robust Federal floor
of protections, and States could choose to do more but not
less.
It was that view, embodied in the Reagan-era regulations,
that for the most part, have been adopted by every Presidential
administration since. It is also the view embodied in the Biden
proposal that seeks to clarify Clean Water Act regulations
after a Federal district court tossed out the Trump
administration rules.
In 2006, the Supreme Court, though, complicated the Clean
Water Act by issuing a decision that instituted the use of a
test for determining what waters remain protected by the act,
but the Court did not agree on a single test. That is where I
started following the WOTUS issue in several marathon hearings
before this committee and subcommittee--discussing many of the
same issues we are discussing today.
Since the Rapanos decision, every Presidential
administration has adopted the two tests outlined by the
Supreme Court--the ``relatively permanent'' test and the
``significant nexus'' test--for determining Clean Water Act
protections.
The Trump administration's second rulemaking attempt
abandoned the ``significant nexus'' test. The result was an
unfathomable loss of Federal protections in place since 1972
and no evidence that States have the desire or resources to
fill in those gaps.
The Trump rule defied clean water history, defied the law,
and defied science on how watersheds function, and,
fortunately, this rule was rejected by a Federal court only 14
months after it took effect, reinstating the Reagan-era
regulations and continued use of both those tests.
The Biden rule recodifies the Reagan-era framework and the
use of both jurisdictional tests, but also includes significant
improvements and exemptions requested by stakeholders to
address legitimate concerns over uncertainty and to ease
compliance.
The rule seeks to balance the need to protect waters and
wetlands consistent with the goals of the Clean Water Act,
while trying to comply with the law, the science, and various
opinions of the Supreme Court.
The Biden rule is not perfect, but in my opinion, it is a
far better place to start for certainty, for legality, and
protecting the quality of our Nation's waters.
Unfortunately, the recently introduced Congressional Review
Act resolution to block the proposal is likely to create more
uncertainty. Should this resolution become law, it has the
potential to cause even more chaos and confusion.
For example, if the resolution is adopted, it is unlikely
to prevent the continued use of the ``significant nexus'' test,
as this test is already being utilized today. However, passage
of the resolution would eliminate those stakeholder-led
clarifications in the Biden rule and prevent future
administrations from further improving the rule unless Congress
decides to intervene.
Further, enactment of this resolution could block agencies
from helping stakeholders comply with any new jurisdictional
tests that might be announced by this Supreme Court. If that
were the case, stakeholders could be left with an invalidated
rulemaking and a framework for a new, judicially led test, but
no guidance on how to apply that test in the field.
In my view, that is the exact opposite of certainty and a
big mistake. I support this administration's efforts to protect
water quality and provide stakeholders with some additional
clarity on how to comply with the Clean Water Act.
So, I want to thank you for the chance to give an opening
statement.
I thank the witnesses for joining us today and look forward
to your testimony.
Thank you.
[Mr. Larsen of Washington's prepared statement follows:]
Prepared Statement of Hon. Rick Larsen, a Representative in Congress
from the State of Washington, and Ranking Member, Committee on
Transportation and Infrastructure
My state is defined by its clean water, including the health of the
Puget Sound and the hundreds of lakes, and thousands of miles of rivers
and streams throughout Washington.
Washingtonians know that rivers, streams, and wetlands are
intrinsically connected. The health of Washington's waters and its
water-related economy depends on a strong partnership with the federal
government and a level playing field among its upstream and downstream
neighbors, including Tribal lands.
The need for a level playing field was the reason why, 50 years
ago, this committee passed the original Clean Water Act. In the 1970s,
Congress specifically noted in the legislative history of the Act that
a state-by-state, go-it-alone approach was ``inadequate in every vital
aspect'' and left waters severely polluted.
Recently, my state joined several others in highlighting to the
Supreme Court Congress' deliberate decision in 1972 to replace an
ineffective patchwork of state laws with the Clean Water Act.
In doing so, Congress sought to protect the interests of downstream
states that might otherwise suffer the environmental consequences and
economic burdens of weak or non-existent pollution controls upstream.
That was our shared, bipartisan view of clean water for decades--a
strong federal, state partnership to protect our waters, where the
Corps and EPA set a robust federal floor of protections and states
could choose to do more, but not less.
It was the view embodied in the Reagan-era regulations that, for
the most part, have been adopted by every Presidential administration
since--including the previous administration, until it changed its
mind.
It is also the view embodied in the Biden proposal that seeks to
clarify Clean Water Act regulations after a federal district court
tossed out the Trump administration rules.
In 2006, the Supreme Court complicated the Clean Water Act by
issuing a decision that instituted the use of a test for determining
what waters remained protected by the Act, but the Court did not agree
on a single test. That is where I started following the WOTUS issue in
several marathon hearings before this committee and subcommittee--
discussing many of the same issues and uncertainty we are discussing
today.
Since the Rapanos decision, every Presidential administration has
adopted the two tests outlined by the Supreme Court--the ``relatively
permanent'' test and the ``significant nexus'' test--for determining
Clean Water Act protections.
The Trump administration's second rulemaking attempt abandoned the
``significant nexus'' test. The result was an unfathomable loss of
federal protections in place since 1972 for countless streams, lakes,
and wetlands, and no evidence that states have the desire or resources
to fill in the gaps.
The Trump rule defied clean water history, defied the law, and
defied the science on how watersheds function. Fortunately, this rule
was rejected by a federal court only 14 months after it took effect,
reinstating the Reagan-era regulations and the continued use of both
the ``relatively permanent'' and ``significant nexus'' tests.
The Biden rule recodifies the Reagan-era framework and the use of
both jurisdictional tests, but it also includes significant
improvements and exemptions, requested by stakeholders, to address
legitimate concerns over uncertainty and to ease compliance.
The Biden rule seeks to balance the need to protect waters and
wetlands, consistent with the goals of the Clean Water Act, while
trying to comply with the law, the science, and the opinions of the
Supreme Court.
The Biden rule is not perfect. But, in my opinion, it is a far
better starting place for certainty, legality, and protecting the
quality of our nation's waters than the Dirty Water Rule.
Unfortunately, the recently introduced Congressional Review Act
resolution to block the Biden proposal is likely to create more
uncertainty. Should this resolution become law--and I certainly will
work to ensure it does not--it has the potential to cause even more
chaos and confusion over what waters remain protected by the Clean
Water Act.
For example, if the resolution is adopted, it is unlikely to
prevent the continued use of the ``significant nexus'' test, as this
test is already being utilized today. However, passage of the
resolution would eliminate those stakeholder-led clarifications in the
Biden rule and would prevent future administrations from further
improving the rule unless Congress decides to intervene.
Further, enactment of this resolution could block agencies from
helping stakeholders comply with any new jurisdictional test that might
be announced by the Supreme Court. If that were the case, stakeholders
could be left with an invalidated rulemaking and a framework for a new,
judicially-led test, but no guidance on how to apply that test in the
field.
In my view, that is exactly the opposite of certainty and a big
mistake. I support this administration's efforts to protect water
quality and to provide stakeholders with some additional clarity on how
to comply with the Clean Water Act.
I thank the witnesses for joining us today and I look forward to
your testimony.
Mr. Rouzer. Thank you, Mr. Larsen.
The ranking member and I, I see, have a series of dueling
documents to submit for the record. And so, I will go first.
I ask unanimous consent to enter into the record a letter
from the Associated Builders and Contractors dated February 7,
2023.
Without objection, so ordered.
[The information follows:]
Letter of February 7, 2023, to Hon. David Rouzer, Chairman,
Subcommittee on Water Resources and Environment, from Kristen
Swearingen, Vice President, Legislative and Political Affairs,
Associated Builders and Contractors, Submitted for the Record by Hon.
David Rouzer
February 7, 2023.
The Honorable David Rouzer,
Chairman,
U.S. House Committee on Transportation and Infrastructure, Subcommittee
on Water Resources and Environment.
Dear Chairman Rouzer and Members of the U.S. House Committee on
Transportation and Infrastructure Subcommittee on Water Resources and
Environment:
On behalf of Associated Builders and Contractors, a national
construction industry trade association with 68 chapters representing
more than 21,000 members, I write to comment on the U.S. House
Committee on Transportation and Infrastructure Subcommittee on Water
Resources and Environment Hearing, ``Stakeholder Perspectives on
Impacts of the Biden Administration's Water of the United States
Rule.''
ABC applauds the subcommittee for calling this important hearing to
gather stakeholder perspectives. ABC is also appreciative of Chairmen
Graves and Rouzer's joint resolution of disapproval on the Biden
administration's burdensome WOTUS rule under the Congressional Review
Act and urges the U.S. House of Representatives to swiftly consider the
legislation.
As a member of the Waters Advocacy Coalition, ABC filed comments on
the U.S. Environmental Protection Agency and the U.S. Army Corps of
Engineers' proposed rule to revise the definition of ``waters of the
United States'' applicable to all Clean Water Act programs. On Jan. 18,
2023, the agencies released a final rule, effective March 20, that
unfortunately entirely disregarded the concerns expressed by ABC and
the WAC coalition in the comment letter.
The rule would repeal the Trump administration's Navigable Waters
Protection Rule and codify a definition that reflects the pre-2015
regulatory regime that the agencies are currently implementing. Raising
numerous important concerns, the coalition urged the agencies to
withdraw the proposed rule, reconsider the rule while addressing the
coalition's concerns and reengaging stakeholders and repropose a rule
that adheres to the CWA and relevant U.S. Supreme Court precedent.
Instead, ABC supports maintaining the NWPR's concise definition of
WOTUS under the CWA so contractors have the information they need to
comply with the law while also serving as good stewards of the
environment.
ABC and the WAC have consistently urged the agencies to define
WOTUS in a way that:
Gives appropriate weight to the explicit statutory policy
to recognize, preserve and protect the states' traditional and primary
authority over land and water use;
Adheres to the full Supreme Court precedent on the
definition of WOTUS under the CWA;
Gives effect to the term ``navigable'' in the statutory
text;
Draws clear lines between federal and state or tribal
jurisdiction so that regulators and regulated entities can easily
identify which features are subject to federal CWA jurisdiction; and
Accounts for science but recognizes that the statutory
text ultimately dictates jurisdiction.
ABC and the WAC continue to believe that the NWPR is an appropriate
foundation for a durable and defensible rule. Rather than wiping out
that rule in its entirety and replacing it with the flawed framework
that prompted stakeholders to demand more clarity and certainty, the
agencies should focus their efforts on revisions to the NWPR or related
implementation guidance.
Under the 2015 WOTUS rule, the EPA and the Corps gave themselves
unprecedented permitting and enforcement authority over land-use
decisions that Congress did not authorize and had previously been under
state or local jurisdiction. Under that rule, construction companies
needed to rethink conventional building practices near any wet area,
and property owners could face heavy fines for using their own ponds
and creeks. Further, critical infrastructure projects could be slowed
as a result of additional permitting requirements that involve the EPA
and the Corps, when in the past they may have only included city,
county or state governments.
Further, as Congress continues to debate permitting reform efforts,
ABC urges that the codification of the 2020 NWPR remains a priority.
Sen. Shelley Capito's, R-W.Va., ABC-supported legislation, The START
Act, would codify the 2020 NWPR and the Trump administration's Section
401 Certification Rule under the CWA to prevent state actions that
unreasonably block energy projects, which ABC would welcome.
Finally, because the Supreme Court has decided to hear the case of
Sackett v. Environmental Protection Agency, which challenges EPA's
overreach of its CWA jurisdiction, there is no sense in rushing through
a rulemaking proceeding that codifies a standard that the Supreme Court
could change or foreclose altogether.
ABC and its members are committed to building our nation's
infrastructure projects with the highest standards of safety and
quality. ABC members stand ready for the opportunity to build and
maintain America's energy infrastructure to the benefit of the
communities that it will serve.
Sincerely,
Kristen Swearingen,
Vice President, Legislative and Political Affairs,
Associated Builders and Contractors.
CC: Members of the U.S. House Committee on Transportation and
Infrastructure Subcommittee on Water Resources and Environment
Mr. Rouzer. I ask unanimous consent to enter into the
record a statement from the American Road and Transportation
Builders Association from February 8, 2023.
Without objection, so ordered.
[The information follows:]
Statement of the American Road and Transportation Builders Association,
Submitted for the Record by Hon. David Rouzer
The American Road and Transportation Builders Association (ARTBA)
thanks Chairman Rouzer and Ranking Member Napolitano for holding
today's hearing, ``Stakeholder Perspectives on the Impacts of the Biden
Administration's Waters of the United States (WOTUS) Rule.'' The rule
marks the third time in the past seven years the U.S. Environmental
Protection Agency (EPA) and Army Corps of Engineers (Corps) have
redefined the federal jurisdiction of the Clean Water Act (CWA).
ARTBA's principal concern with this series of rule changes has been
roadside ditches, which our members commonly deploy to ensure safety
and environmental compliance on transportation construction projects.
Overreaching or uncertainty in their jurisdiction can trigger federal
permitting requirements, potentially delaying or even interrupting
these projects (while also likely increasing their costs).
Under the 2015 WOTUS rule, virtually any ditch with standing water
could fall under EPA and Corps jurisdiction. In 2020, the Corps and EPA
explicitly exempted roadside ditches from the federal regulation.
Unfortunately, the latest WOTUS rule reverts to the previous approach,
a combination of needless overregulation and onerous case-by-case
determinations of jurisdiction.
Consequently, ARTBA supports the joint resolution introduced by
Chairman Graves and Subcommittee Chairman Rouzer that would rescind the
recent WOTUS rule and restore clarity to the federal permitting process
for transportation construction projects.
Because of the CWA's importance to planning and building projects,
ARTBA has participated in litigation concerning federal jurisdiction
over the nation's waters and wetlands for nearly two decades. This
includes the case of Sackett v. EPA, which the U.S. Supreme Court
agreed to hear in 2022. The Court will determine whether CWA
jurisdiction should be based on ``significant nexus'' or a ``continuous
surface water connection.'' Nonetheless, with this critical decision
pending, the EPA and Corps have continued proceeding with the new WOTUS
rule. Doing so prior to the disposition of Sackett, these agencies risk
moving forward with a rule that may require an almost immediate
rewrite. Therefore, it makes sense for them to suspend implementation
of their new rule until the Court reaches its decision.
At the same time, the Infrastructure Investment and Jobs Act (IIJA)
features an historic federal investment in our nation's infrastructure,
which should yield associated economic benefits across all communities.
Public agencies and the transportation construction industry are
working diligently to maximize these results through safe, efficient
and timely project delivery. Regulatory overreach--such as the latest
WOTUS revision--poses the greatest threat to these efforts.
Through a key IIJA provision, the codification of One Federal
Decision, the law seeks to complete the review and approval process for
projects within two years \1\. Unfortunately, with its expanded
jurisdiction determinations and permitting requirements, the EPA and
Corps' latest WOTUS rule will put this two-year objective out of reach
for many such projects. Do the EPA and Corps want their bureaucratic
obstinance to interfere with achieving this objective, as well as
delaying or diminishing the IIJA's economic benefits?
---------------------------------------------------------------------------
\1\ IIJA, Sec. 11301. According to the White House Council on
Environmental Quality, it currently takes an average of five to seven
years for a transportation project to complete the environmental review
and approval processes.
---------------------------------------------------------------------------
For all these reasons, it is inopportune for the EPA and Corps to
proceed with their third WOTUS revision in seven years. The agencies
should instead definitively exempt roadside ditches from federal
jurisdiction, or, at the very least, suspend implementation of their
latest rule until the Supreme Court issues its decision in Sackett.
ARTBA looks forward to continued collaboration with the committee
towards a clear and consistent CWA regulatory system. Thank you for
considering the viewpoint of the transportation construction industry
on this important policy matter.
Mr. Rouzer. I ask unanimous consent to enter into the
record a letter from the National Multifamily Housing Council
and the National Apartment Association dated February 8, 2023.
Without objection, so ordered.
[The information follows:]
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and Hon. Rick
Larsen, Ranking Member, Committee on Transportation and Infrastructure,
and Hon. David Rouzer, Chairman, and Hon. Grace F. Napolitano, Ranking
Member, Subcommittee on Water Resources and Environment, from Cindy V.
Chetti, Senior Vice President, Government Affairs, National Multifamily
Housing Council, and Gregory S. Brown, Senior Vice President,
Government Affairs, National Apartment Association, Submitted for the
Record by Hon. David Rouzer
February 8, 2023.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Envir., Committee on Transportation
and Infrastructure, U.S. House of Representatives, Washington,
DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Envir., Committee on Transportation
and Infrastructure, U.S. House of Representatives, Washington,
DC 20515.
Dear Chairman Graves, Ranking Member Larsen, Chairman Rouzer and
Ranking Member Napolitano:
The National Multifamily Housing Council (NMHC) and the National
Apartment Association (NAA) provide a single voice for the apartment
industry including the developers, owners and operators of multifamily
rental housing. We are committed to providing affordable and attainable
housing nationwide, yet the nation faces a significant housing
affordability challenge that is exacerbated by an insufficient housing
supply. Therefore, we appreciate the Committee gathering for a hearing
entitled ``Stakeholder Perspectives on the Impacts of the Biden
Administration's Waters of the United States (WOTUS) Rule'' and
encourage you to support efforts to ensure that federal water
requirements do not undermine the ability to develop and build
America's much-needed housing.
One-third of all Americans rent their housing, and our industry
plays a critical role in meeting the nation's housing needs by
providing apartment homes for nearly 39 million residents and
contributing $3.4 trillion annually to the economy. However, undue
regulatory barriers hinder our ability to produce necessary housing and
the recently released U.S. Environmental Protection Agency (EPA) and
U.S. Army Corps of Engineers (Army Corps) final rule revising the
definition of WOTUS under the Clean Water Act (CWA) poses potentially
significant harm to the real estate sector. While the apartment
industry strongly supports protecting our nation's water resources,
expanding the scope of the CWA would result in undue federal regulatory
requirements for housing providers. These additional hurdles would
create delays, add costs and ultimately dampen critically needed
housing construction and development.
Critical Housing Shortages and Regulatory Barriers
It is essential that we build housing at all price points to
address the nation's critical housing challenges and ensure economic
stability for American households. According to recent research
commissioned by NMHC and NAA, the U.S. is facing a pressing need to
build 4.3 million new apartment homes by 2035.\1\ This includes an
existing shortage of 600,000 apartment homes stemming from
underbuilding due in large part to the 2008 financial crisis. Further,
underproduction of housing has translated to higher housing costs--
resulting in a consequential loss of affordable housing units (those
with rents less than $1,000 per month), with a decline of 4.7 million
units from 2015 to 2020.
---------------------------------------------------------------------------
\1\ Hoyt Advisory Services, ``Estimating the Total U.S. Demand for
Rental Housing by 2035.'' (2022), https://www.weareapartments.org/.
---------------------------------------------------------------------------
In fact, the total share of cost-burdened apartment households
(those paying more than 30% of their income on housing) has increased
steadily over several decades and reached 57.6% in 2021.\2\ During this
same period, the total share of severely cost-burdened apartment
households (those paying more than half their income on housing)
increased from 20.9% in 1985 to 31.0%.\3\
---------------------------------------------------------------------------
\2\ NMHC tabulations of 1985 American Housing Survey microdata,
U.S. Census Bureau; 2021 American Housing Survey, U.S. Census Bureau.
\3\ Id.
---------------------------------------------------------------------------
Meanwhile, it is becoming increasingly difficult to build housing
that is affordable to a wide range of income levels. Rental housing
providers stand ready to help meet current and future demand, but
cannot do it alone. Unnecessary, duplicative or unduly burdensome laws,
policies and regulations at all levels of government prevent us from
delivering the housing our country so desperately needs. High
regulatory costs, in particular, create a barrier to affordable housing
supply. Recent research published by NMHC and the National Association
of Home Builders found that regulation imposed by all levels of
government accounts for 40.6 percent of multifamily development
costs.\4\
---------------------------------------------------------------------------
\4\ National Multifamily Housing Council and National Association
of Home Builders Regulation: 40.6 Percent of the Cost of Multifamily
Development, https://www.nmhc.org/globalassets/research--insight/
research-reports/cost-of-regulations/2022-nahb-nmhc-cost-of-
regulations-report.pdf.
---------------------------------------------------------------------------
Impacts of WOTUS Rule
For years, we have asked for clarity on the application of CWA
requirements. Instead, numerous lawsuits, failed congressional reform
efforts and inconsistent rulemakings have created uncertainty and
confusion for property owners. We are therefore deeply disappointed
that this latest WOTUS Rule does not resolve the tension apartment
firms face over the scope of federal jurisdiction under the CWA.
Without such clarity, property owners are deterred from undertaking
critically needed housing construction and development projects.
This federal overreach will greatly expand the universe of
properties, including many with only a tenuous relationship to a body
of water, required to seek very expensive federal permits to develop or
redevelop housing. This additional requirement will create uncertainty
and delay in permitting, add potentially significant costs and create
additional legal risks that will exacerbate the nation's housing
affordability crisis. Further, expanded, federal water regulations are
an expensive, but unnecessary overlay, given that states and localities
have their own water protection rules. Simply determining whether a
property needs a federal permit is an expensive endeavor.
Moreover, the release of this rule now ignores the forthcoming
Supreme Court decision in Sackett v. EPA, which directly relates to
this issue. Implementation of the new rule prior to the release of the
Court's opinion will require businesses to spend significant time and
resources in compliance efforts that may prove inconsistent with the
Supreme Court's decision.
Conclusion
Federal policy efforts should focus on incentivizing and breaking
down existing barriers to housing development rather than add new
regulatory burdens. Improving housing affordability and availability
are key national priorities. We must recognize that additional,
inconsistent and potentially duplicative regulation has a chilling
effect on the market, drives up the cost of housing and disrupts needed
investment at a time of significant affordability and supply
challenges. We are committed to working with policymakers on
protections for our water resources that support the creation of more
housing, preserve affordability and ensure that every American has a
safe, quality place to call home.
Sincerely,
Cindy V. Chetti,
Senior Vice President, Government Affairs, National Multifamily
Housing Council.
Gregory S. Brown,
Senior Vice President, Government Affairs, National Apartment
Association.
CC: Members of Subcommittee on Water Resources and Environment, House
Committee on Transportation and Infrastructure
Mr. Rouzer. I ask unanimous consent to enter into the
record a letter from the National Association of Manufacturers
dated February 8, 2023.
Without objection, so ordered.
[The information follows:]
Letter of February 8, 2023, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from Nile Elam, Senior Director, Energy and Resources
Policy, National Association of Manufacturers, Submitted for the Record
by Hon. David Rouzer
February 8, 2023.
The Honorable David Rouzer,
Chairman,
Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment, U.S. House of Representatives,
Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment, U.S. House of Representatives,
Washington, DC 20515.
Dear Chairman Rouzer and Ranking Member Napolitano:
We thank you for holding today's hearing, ``Stakeholder
Perspectives on the Impacts of the Biden Administration's Water of the
United States (WOTUS) Rule,'' and for your focus on examining the role
of WOTUS and impacts on the regulated community. The National
Association of Manufacturers is the largest manufacturing association
in the United States, representing small and large manufacturers in
every industrial sector and in all 50 states. Manufacturing employs
nearly 13 million Americans, contributes $2.81 trillion to the U.S.
economy annually, pays workers over 18% more than the average for all
businesses and has one of the largest sectoral multipliers in the
economy. Taken alone, manufacturing in the United States would be the
eighth-largest economy in the world.
The Clean Water Act jurisdictions that fall under WOTUS are key for
manufacturers and communities alike regarding the standards and scope
of various permits protecting clean water. A durable and pragmatic
WOTUS rule with clear definitions, that are easily understandable and
applicable across the country, ensures the public has access to clean
water and regulated entities understand their water permits.
Manufacturers prioritize environmental stewardship and protecting
our national waterways, but the EPA's current WOTUS rule leaves
stakeholders confused and relying on unclear terminology that is
difficult to apply universally. Multiple Supreme Court decisions have
touched on the definition of ``navigable waters'' over the years, but
neither the SCOTUS nor the Agencies have provided sufficient clarity.
Compounding this confusion, controversial legal arguments, including
application of ``significant nexus'' underpins the current the
proposal, which broadly expands federal jurisdiction beyond traditional
navigable waters. The rule creates a new sprawling category of various
waters--know as (a)(5) waters--a jurisdictional assertion that has not
been seen since 2003. Because of these expansions and ambiguous terms,
the careful balance between local and state regulators is unpredictable
and can leave permit seekers with little guidance, aside from the need
for more time and money to achieve their permitting requests.
Despite a pending ruling from the Supreme Court on Sackett v EPA,
which could definitively change Clean Water Act jurisdiction and WOTUS
application, the EPA recently released its new WOTUS rule. The NAM has
repeatedly argued that the EPA wait to release any WOTUS rule until
this consequential verdict is released--which many expect by spring--
yet these calls have been ignored, as the EPA has produced a rule that
may no longer be relevant and need to be redrafted before the end of
the year.
The Clean Water Act is a key permitting avenue for any
manufacturer, and as it stands now, WOTUS is ripe with ambiguity and
inconsistent terminology, and we need Congressional intervention in
order to facilitate manufacturing expansion while achieving
environmental stewardship. Today's hearing is a necessary step towards
educating the public and policy stakeholders regarding the immense
permitting regulatory efforts necessary under local and state
jurisdictions, and the need for a complimentary WOTUS rule that
advances permitting protections at the federal level while providing
certainty for the regulated community.
The NAM stands ready to work with your T&I colleagues, along with
the EPA and Corps, regarding sensible, predictable and clear WOTUS
regulations. Thank you again for your focus on permit certainty and in
turn, enhancing manufacturers' ability to deliver their goods, expand
their operations and grow their workforce.
Respectfully,
Nile Elam,
Senior Director, Energy and Resources Policy,
National Association of Manufacturers.
Mr. Rouzer. I ask unanimous consent to enter into the
record a letter from the National Federation of Independent
Business dated February 8, 2023.
Without objection, so ordered.
[The information follows:]
Letter of February 8, 2023, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from Kevin Kuhlman, Vice President, Federal Government
Relations, National Federation of Independent Business Inc., Submitted
for the Record by Hon. David Rouzer
February 8, 2023.
The Honorable David Rouzer,
Chairman,
Water Resources and Environment Subcommittee, Committee on
Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
The Honorable Grace F. Napolitano,
Ranking Member,
Water Resources and Environment Subcommittee, Committee on
Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
Dear Chairman Rouzer and Ranking Member Napolitano,
On behalf of NFIB, the nation's leading small business advocacy
organization, I write concerning today's hearing entitled,
``Stakeholder Perspectives on the Impacts of the Biden Administration's
Waters of the United States (WOTUS) Rule.''
On behalf of small businesses across the United States, thank you
for holding today's hearing. Small business owners appreciate the
opportunity to discuss the impacts of the Environmental Protection
Agency's (EPA) and the Department of the Army's final rule, which
significantly expanded the federal government's regulatory authority
over wetlands, farms, and private property. This regulatory overreach
will increase the regulatory burdens and uncertainty facing America's
small farmers, ranchers, developers, contractors, and other small
businesses.
For many years, NFIB members have ranked ``unreasonable and
burdensome government regulation'' as one of the top problems facing
small businesses.\1\ Unfortunately, the red tape added by the Biden
Administration's regulatory onslaught is unprecedented. In 2021, the
Biden Administration finalized 283 regulations and imposed more than
$200 billion in regulatory costs, the largest total in the first year
of a presidency.\2\ The Biden Administration has followed up these
finalized rules with an additional 311 proposed rules that could add
another $191.2 billion in costs for regulated entities.\3\
---------------------------------------------------------------------------
\1\ Holly Wade & Andrew Heritage, Small Business Problems &
Priorities, NFIB Research Center, August 2020, https://assets.nfib.com/
nfibcom/NFIB-Problems-and-Priorities-2020.pdf.
\2\ Dan Bosch, 2022: The Year in Regulation, American Action Forum,
January 2023, https://www.americanactionforum.org/research/2022-the-
year-in-regulation/.
\3\ Id.
---------------------------------------------------------------------------
These added regulatory costs will fall disproportionately on small
businesses, which do not have compliance divisions to navigate complex
regulatory issues. Unfortunately, the regulatory cost estimates of the
finalized and proposed rules will likely understate the regulatory
burdens imposed on small businesses. For example, when the EPA and the
Department of the Army certified the final WOTUS rule, the agencies
stated the rule ``will not have a significant economic impact on a
substantial number of small businesses.'' \4\ This conclusion by the
EPA and Department of the Army is farcical. America's small farmers,
ranchers, developers, contractors, and other small business owners
believe the final rule will significantly increase their regulatory
costs and uncertainty at a time when many face inflation, supply chain
disruptions, and labor shortages.
---------------------------------------------------------------------------
\4\ 88 Fed. Reg. 3139, col. 3. https://www.epa.gov/system/files/
documents/2023-01/Revised
%20Definition%20of%20Waters%20of%20the%20United%20States%20FRN%20January
%202023.pdf.
---------------------------------------------------------------------------
The disappointing reality is that this regulatory uncertainty
facing small businesses did not have to occur. The Biden Administration
could have simply waited for the Supreme Court decision in the Sackett
v. EPA case, which is anticipated in the coming months. However, by
finalizing the rule before the Supreme Court decision, the Biden
Administration threw caution to the wind and ignored the calls of small
businesses. This inexplicable decision increased the regulatory
uncertainty for small businesses as the federal authority under the
Clean Water Act could once again change following the court decision.
The current regulatory path is not sustainable. Small businesses
cannot invest and grow in an environment where goalposts constantly
shift with every election. We urge Congress to clarify the federal
authorities granted under the Clean Water Act to provide certainty for
regulated entities. Specifically, Congress must:
1. Repeal the EPA's and the Department of the Army's final WOTUS
rule.
2. Write and enact clear statutes to eliminate uncertainty
regarding Congressional intent and improve the ability of small
businesses to comply with the law.
3. Require agencies to conduct thorough economic analyses that
examine the direct and indirect costs of regulations on regulated
entities, including small businesses and consumers.
4. Require agencies to eliminate or streamline outdated,
unnecessary, and burdensome regulations.
5. Conduct robust oversight of and reduce Congressional
appropriations for federal agencies that exceed their regulatory
authorities granted under law.
As this subcommittee conducts oversight and examines legislative
options related to the Clean Water Act, we urge Congress to provide
certainty to America's farmers, ranchers, developers, contractors, and
other small businesses. Small businesses across America appreciate your
leadership on this critical issue and look forward to working with you
to reduce the regulatory and compliance burdens faced by small
businesses.
Sincerely,
Kevin Kuhlman,
Vice President, Federal Government Relations, NFIB.
Mr. Rouzer. I ask unanimous consent to enter into the
record a letter from the National Mining Association dated
February 8, 2023.
Without objection, so ordered.
[The information follows:]
Letter of February 8, 2023, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from the National Mining Association, Submitted for
the Record by Hon. David Rouzer
February 8, 2023.
Chairman David Rouzer,
House Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment, 2333 Rayburn House
Office Building, Washington, DC 20515.
Ranking Member Grace Napolitano,
House Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment, 1610 Longworth House
Office Building, Washington, DC 20515.
Dear Chairman Rouzer and Ranking Member Napolitano:
As the Subcommittee on Water Resources and Environment works to
support a regulatory atmosphere that ensures durability and certainty
for all domestic industries, the National Mining Association (NMA)
writes to express opposition to the Environmental Protection Agency
(EPA) and the U.S. Army Corps of Engineers (Corps) final rule defining
``Waters of the United States.''
The NMA is the voice of the American mining industry in Washington,
D.C. Membership includes more than 275 corporations involved in all
aspects of mining including mineral and coal producers, mineral
processors, equipment manufacturers, state mining associations, bulk
transporters, engineering firms, consultants, financial institutions,
and other companies that supply goods and services to the mining
industry.
The Clean Water Act was intended to provide both essential
environmental protections for our nation's waterways as well as the
regulatory certainty necessary for investment and a thriving economy.
The mining industry relies on these basic regulatory tenets to make
confident decisions that will create jobs, strengthen local
communities, and provide the energy and materials that are the
foundation of our economy.
Unfortunately, the final WOTUS rule could not have been announced
at a more consequential time as our nation intensifies efforts to
secure mineral and material supply chains for infrastructure and
energy, including metallurgical coal for steel production, minerals for
electric vehicle batteries and renewable energy technologies, and other
materials used to support our national defense. The U.S. Geological
Survey's annual commodity summary released last month highlights the
dire state of America's import overreliance, which now makes up more
than one-half of the U.S. apparent consumption for 51 nonfuel mineral
commodities, of which we were 100 percent net import reliant for 15 of
those.\1\
---------------------------------------------------------------------------
\1\ U.S. Geological Survey, 2023 Commodity Summary, https://
pubs.er.usgs.gov/publication/mcs2023
---------------------------------------------------------------------------
While the agencies state the final rule is a return to the familiar
and predictable pre-2015 regulatory regime, the final rule expands
jurisdiction compared to the status quo in several important ways,
including:
The rule continues to rely on the confusing and
subjective significant nexus test;
It expands potential jurisdiction with the creation of a
new catchall (a)(5) ``other waters'' category, which allows federal
jurisdiction over features not identified as (a)(1) through (4) waters
that meet either the relatively permanent or significant nexus test;
The rule expands its regulatory overreach by changing the
way the agencies plan to implement the significant nexus test that will
generally be broader than has been done previously; and
The exclusions in the final rule are not clearly defined
and will be difficult for the mining industry and other regulated
entities to implement.
Despite these and other expansions, the agencies assert that there
are only de minimis costs and benefits associated with this rulemaking.
The same cannot be said for the effect the rule will have on the future
of domestic mining. Currently, it takes between seven and ten years,
and often longer, for a mine to receive all necessary federal permits
to begin production. The uncertainty intrinsic in the final rule will
ultimately disincentivize mining investment in the U.S. due to the long
permitting timelines which require capital-intensive investments to
develop a mine.
The domestic mining industry and the communities in which they
operate deserve certainty and assurance that regulations can be
efficiently administered in a durable and predictable manner and
without the threat of financial hardship and punitive burdens. The NMA
appreciates the Committee on Transportation and Infrastructure
Subcommittee on Water Resources and Environment's consideration and
engagement on these key domestic mining priorities. We look forward to
continuing to work with you.
Mr. Rouzer. I ask unanimous consent to enter into the
record a letter from the Republican Governors Association dated
January 30, 2023.
Without objection, so ordered.
[The information follows:]
Letter of January 30, 2023, to President Joseph R. Biden, Jr., from the
Republican Governors Association, Submitted for the Record by Hon.
David Rouzer
January 30, 2023.
President Joseph R. Biden, Jr.,
The White House,
1600 Pennsylvania Avenue, Washington, DC 20500.
Dear President Biden,
We write in opposition to your rule regarding the Clean Water Act
(CWA) and the revised definition of ``Waters of the United States''
(WOTUS). Specifically, we request you delay its implementation until
the U.S. Supreme Court issues a ruling in Sackett v. EPA. The WOTUS
definition has been under scrutiny for nearly twenty years, and your
Administration's rule only further complicates the efforts to create
certainty under the CWA for rural communities. The problem is
exacerbated by the pending Supreme Court ruling. The final WOTUS rule
released during the holidays is concerning in terms of timing,
substance, and process.
The rule is problematic in and of itself, but its timing is
particularly troubling given record inflation and gas prices that
threaten the livelihoods of so many communities. Those who rely on
farming and small business as a backbone of their local economies are
particularly vulnerable. Another burdensome and overbroad regulation
from the federal government could not come at a worse time for America.
Having already squandered much of America's energy independence, you
should not increase costs for consumers by tying up energy production
with even more red tape.
We call into question the timing and necessity of the rule with the
Court's upcoming Sackett decision which is expected by June of this
year. That opinion could significantly impact the final rule and its
implementation. To change the rule multiple times in six months is an
inefficient and wasteful use of State and federal resources and will
impose an unnecessary strain on farmers, builders, and every other
impacted sector of the American economy.
The substance of the rule hinders State governments as we seek to
give clarity and consistency to businesses, farms, and individuals
regarding the regulatory framework for water. The broad definitions
used in the 514-page document only add to the confusing and complicated
history of WOTUS. In fact, it appears that the EPA is seeking to
regulate private ponds, ditches, and other small water features.
Understanding the final WOTUS rule will require States and the
regulated community to wade through an extensive and unclearly written
web of interpretations. Given the many outstanding issues the recent
WOTUS rule generates, particularly in rural America, we ask that you
delay implementation of the rule until the Court decides Sackett. Small
businesses, farmers, and communities across America simply cannot
afford another costly revision.
Thank you for your consideration of this request. If you have
further questions or would like to learn more from our State agencies,
please do not hesitate to reach out to us.
Sincerely,
Governor Brad Little,
State of Idaho.
Governor Kay Ivey,
State of Alabama.
Governor Mike Dunleavy,
State of Alaska.
Governor Sarah Sanders,
State of Arkansas.
Governor Ron DeSantis,
State of Florida.
Governor Brian Kemp,
State of Georgia.
Governor Eric Holcomb,
State of Indiana.
Governor Kim Reynolds,
State of Iowa.
Governor Tate Reeves,
State of Mississippi.
Governor Mike Parson,
State of Missouri.
Governor Greg Gianforte,
State of Montana.
Governor Jim Pillen,
State of Nebraska.
Governor Joe Lombardo,
State of Nevada.
Governor Chris Sununu,
State of New Hampshire.
Governor Doug Burgum,
State of North Dakota.
Governor Mike DeWine,
State of Ohio.
Governor Kevin Stitt,
State of Oklahoma.
Governor Henry McMaster,
State of South Carolina.
Governor Kristi Noem,
State of South Dakota.
Governor Bill Lee,
State of Tennessee.
Governor Greg Abbott,
State of Texas.
Governor Spencer Cox,
State of Utah.
Governor Glenn Youngkin,
Commonwealth of Virginia.
Governor Jim Justice,
State of West Virginia.
Governor Mark Gordon,
State of Wyoming.
Mr. Rouzer. I now recognize my friend and colleague from
California.
Mrs. Napolitano. That is a long one, Mr. Chairman. Thank
you.
I ask unanimous consent that the following statements be
made part of today's record.
It is a letter from the Clean Water for All Coalition.
Mr. Rouzer. Without objection.
[The information follows:]
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and Hon. Rick
Larsen, Ranking Member, Committee on Transportation and Infrastructure,
from the Clean Water for All Coalition, Submitted for the Record by
Hon. Grace F. Napolitano
February 8, 2023.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, United States House of
Representatives, 2164 Rayburn House Office Building,
Washington, DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, United States House of
Representatives, 2164 Rayburn House Office Building,
Washington, DC 20515.
Chairman Graves, Ranking Member Larsen, Subcommittee Chairman
Rouzer, and Subcommittee Ranking Member Napolitano,
On behalf of the undersigned members and partners of the Clean
Water for All Coalition, thank you for holding this hearing and
prioritizing discussion of our country's water and the ways in which
the U.S. EPA (``EPA'') and U.S. Army Corps of Engineers (``USACE'') are
responsible for ensuring we strive toward the Clean Water Act's (CWA)
goal: to ``restore and maintain the chemical, physical, and biological
integrity of the Nation's waters''.
Clean Water for All is a national coalition that brings together
diverse organizations to advance equitable policies that promote and
increase clean water protections, access, and affordability across the
nation. Our members are from all across the country and include hunters
and fishers, local waterkeepers, environmental justice advocates, and
sustainable businesses. Clean and abundant water resources are
important for public health, agriculture, transportation, flood
control, climate resilience, energy production, recreation, fishing and
shellfishing, municipal and commercial uses, indigenous cultural
practices, and much more. Because of the myriad values of water bodies,
including wetlands protected by the Clean Water Act, our members are
keenly interested in the ``Revised Definition of `Waters of the United
States' '' rule (``the Revised Definition rule'').
The Revised Definition rule is a return to a familiar approach for
EPA and USACE, and regulated entities. In this rule, EPA and USACE
identify waters that qualify as ``Waters of the United States'' in a
way that tracks with the agencies' longstanding framework. In virtually
every respect, it is a codification of the approach outlined in the
Bush administration's 2008 guidance, which has been the basis for
agency decisions for most of the past 15 years. That approach is
decidedly more narrow than the rules implemented in the first three
decades of the Clean Water Act and also substantially narrower than the
2015 Clean Water Rule.
Additionally, the Revised Definition rule is well within the limits
identified in Supreme Court precedent, relies on the best available
science, and draws on the agencies' experience and technical expertise.
The scientific record includes hundreds of studies highlighting the
ways different kinds of waters affect traditional navigable and
interstate waters and therefore should be eligible for protection. The
agencies have long made site-specific jurisdictional determinations
under the CWA by considering this kind of scientific evidence, in both
Republican and Democratic administrations. The science confirms what
the agencies know, and what the authors of the CWA knew: the kinds of
waters eligible for coverage under the rule (though, importantly, not
categorically covered) perform important functions related to navigable
and interstate waters' physical, chemical, and biological condition.
In addition to consistency with historical approaches to
administering the CWA and consistency with modern science, the Revised
Definition rule thoroughly rejects the legal, policy, and factual bases
for the Trump Administration's dangerous and misnamed ``Navigable
Waters Protection Rule''. This rule departed from established precedent
and authorized the pollution or destruction of tens of thousands of
water bodies across the country and especially in the arid Southwest.
The Revised Definition rule provides certainty that a threat to our
waters like the last administration's rule will not be revived.
More than three in four people support stronger federal protections
for our nation's waters--ensuring everyone has clean water is a
bipartisan, common sense issue. Too many communities, especially
Indigenous communities, communities of color, and low wealth
communities, still lack clean water. Our country must continue siding
with people over polluters and work to ensure everyone, no matter their
race, zip code, or income, has access to clean water. We all deserve
clean water to drink, lakes where we can teach our children to swim,
rivers where we can fish with family, and assurances that valuable
wetlands and waters will flourish for generations to come. The Revised
Definition rule is an important, reasonable, and practical step towards
such a future.
Sincerely,
Alabama Rivers Alliance.
Alliance for the Great Lakes.
American Rivers.
Anacostia Riverkeeper.
Clean Water Action.
Earthjustice.
Environment America.
Environmental Law & Policy Center.
Environmental Protection Network.
Freshwater Future.
GreenLatinos.
League of Conservation Voters.
National Parks Conservation Association.
National Wildlife Federation.
Natural Resources Defense Council.
Ohio River Foundation.
Potomac Riverkeeper Network.
River Network.
Sierra Club.
Southern Environmental Law Center.
Surfrider Foundation.
Sustainable Futures L3C.
The Water Collaborative of Greater New Orleans.
Mrs. Napolitano. A letter from Trout Unlimited.
Mr. Rouzer. Without objection.
[The information follows:]
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and Hon. Rick
Larsen, Ranking Member, Committee on Transportation and Infrastructure,
and Hon. David Rouzer, Chairman, and Hon. Grace F. Napolitano, Ranking
Member, Subcommittee on Water Resources and Environment, from Kate
Miller, Director of Government Affairs, Trout Unlimited, Submitted for
the Record by Hon. Grace F. Napolitano
February 8, 2023.
The Honorable Sam Graves,
Chair,
House Transportation and Infrastructure Committee, 2165 Rayburn House
Office Building, Washington, DC 20515-6256.
The Honorable David Rouzer,
Chair,
House Transportation and Infrastructure Committee, Subcommittee on
Water Resources and Environment, H2-585 Ford House Office
Building, Washington, DC 20515-6256.
The Honorable Rick Larsen,
Ranking Member,
House Transportation and Infrastructure Committee, 2165 Rayburn House
Office Building, Washington, DC 20515-6256.
The Honorable Grace F. Napolitano,
Ranking Member,
House Transportation and Infrastructure Committee, Subcommittee on
Water Resources and Environment, H2-585 Ford House Office
Building, Washington, DC 20515-6256.
Re: Letter for the Record, House Subcommittee on Water Resources and
Environment, February 8, 2023 Hearing, ``Stakeholder Perspectives on
the Impacts of the Biden Administration's Water of the United States
(WOTUS) Rule.''
Chairman Graves, Ranking Member Larsen, Subcommittee Chairman
Rouzer, and Subcommittee Ranking Member Napolitano:
Trout Unlimited (``TU'') submits this letter for the record in
connection with your hearing on stakeholders' perspectives on the Clean
Water Act and its implementation by the U.S. EPA (``EPA'') and U.S.
Army Corps of Engineers (``USACE''), specifically the agencies' recent
publication of their ``Revised Definition of 'Waters of the United
States' '' rule (``the Revised Definition Rule'').
TU has more than 350,000 members and supporters in 380 chapters and
36 state councils across America. Our mission is to bring together
diverse interests to care for and recover rivers and streams so our
children can experience the joy of wild and native trout and salmon.
Our members cherish their personal connections with their nearby
streams and rivers. They care deeply about the health of the nation's
waterways and our responsibility to steward water resources for future
generations.
TU supported the revised ``Waters of the United States'' definition
because it meets the purpose of the Clean Water Act, which is to make
our waters healthy, fishable, and swimmable. The revised definition is
rooted in sound science and ensures protection of small streams and
wetlands that provide clean water not just for trout and salmon
fisheries but also for farmers, businesses, and communities. TU has
been a leader in defending the Clean Water Act, and we write today in
support of the Revised Definition Rule.
1. The Revised Definition Rule is a return to the approach under the
Reagan and Bush Administrations.
The Revised Definition Rule is a return to a familiar approach for
EPA and USACE. The agencies' rule returns to the regulatory approach
that dates to President Reagan's administration, updated to reflect
limits the U.S. Supreme Court has placed on federal jurisdiction during
the intervening 36 years. President George H.W. Bush presided over
implementation of a similar agency rule. The agencies' Revised
Definition Rule also tracks the 2008 guidance issued under the
President George W. Bush Administration, which has been the basis for
agency decisions for most of the past 15 years.
Although narrower than the 2015 Clean Water Rule, the Revised
Definition Rule is well within the limits identified in Supreme Court
precedent, relies on the best-available science, and draws on the
agencies' experience and technical expertise. The agencies have long
made site-specific jurisdictional determinations under the Clean Water
Act, under both Republican and Democratic administrations.
Because the Clean Water Act itself exempts from permitting routine,
ongoing farming and ranching activities, these important economic
activities are protected under the Revised Definition Rule. Farming,
ranching, and forestry activities such as plowing, cultivating, minor
drainage, and harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices are all
exempt from 404 permitting under Section 404(f)(1)(A) of the Clean
Water Act.\1\ The Revised Definition Rule recognizes that American
agriculture fulfills a vitally important public need and ensures that
the agricultural exemptions are appropriately implemented.
---------------------------------------------------------------------------
\1\ Memorandum: Clean Water Act Section 404 Regulatory Program and
Agricultural Activities, United States Environmental Protection Agency
and United States Department of the Army, (May 3, 1990), available at:
https://www.epa.gov/cwa-404/memorandum-clean-water-act-section-404-
regulatory-program-and-agricultural-activities (last visited on
February 7, 2023).
---------------------------------------------------------------------------
2. The Revised Definition Rule corrects the deficiencies of the 2020
Navigable Waters Protection Rule.
Over the past two years, TU scientists have documented how drafters
of the 2020 Navigable Waters Protection Rule failed to assess its
potentially devastating impacts on ``ephemeral'' streams, which are
critical tributaries of larger streams--and which a TU-led peer-
reviewed publication estimated comprise 48% of stream channels by
length in the coterminous U.S.\2\ Trout Unlimited, which filed amicus
briefs in two court challenges to the rule, also recently examined the
EPA's Jurisdictional Determinations (JDs) database, to estimate the
loss of Clean Water Act protection under the 2020 Navigable Waters
Protection Rule. Based on previous jurisdictional determinations, we
conservatively estimated that approximately 2.4 million stream miles,
23 percent of stream channels by length in the conterminous U.S., would
lose the protection of jurisdictional consideration under the 2020
Navigable Waters Protection Rule.\3\ This percentage is much higher in
certain regions and watersheds, such as the more arid landscapes of the
Southwestern United States.\4\
---------------------------------------------------------------------------
\2\ K. Fesenmyer et al. Large portion of USA streams lose
protection with new interpretation of Clean Water Act. Freshwater
Science 40(1) (2021), attached as Ex. 1.
\3\ K. Fesenmyer et al. Large portion of USA streams lose
protection with new interpretation of Clean Water Act. Freshwater
Science 40(1) (2021), attached as Ex. 1.
\4\ L.R. Levick et al, The ecological and hydrological significance
of ephemeral and intermittent streams in the arid and semi-arid
American Southwest, EPA & USDA/ARS Southwest Water-shed Research
Center, EPA/600/R-08/134, ARS/233046 (2008). (Levick et al (2008)) (AR
0037).
---------------------------------------------------------------------------
Below is a map showing the percentage of ephemeral streams by
watershed, based on TU research, indicating that over half of
Colorado's stream miles are ephemeral, and therefore categorically
excluded even from consideration for Clean Water Act jurisdiction by
the 2020 Navigable Waters Protection Rule.
The 2020 Rule also categorically excluded geographically isolated,
non-floodplain wetlands from Clean Water Act protection, along with
wetlands that may be adjacent to navigable waters and their
tributaries, but do not directly abut those waters, and do not have a
continual surface water connection to them. Non-floodplain wetlands
alone in Colorado cover an estimated 449,428 acres.\5\ This constitutes
approximately 22 percent of the state's remaining wetland acres that
would have been categorically excluded by the 2020 Rule. Half of
Colorado's wetlands have already been lost to human activity. See below
map of Colorado's wetlands that would have been at-risk under the 2020
Navigable Waters Protection Rule.
---------------------------------------------------------------------------
\5\ C.R. Lane and E. D'Amico, Identification of putative
geographically isolated wetlands of the conterminous United States, 52
J. Am. Water Resources Association 705 (2016) (AR 11724).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Those wetlands that remain have an outsized importance for fish and
wildlife in the state. While wetlands occupy only 2 percent of the
state's land, they provide habitat for 75 percent of the state's
species, including at risk species.\6\ What is more, many of these now
vulnerable wetlands are the rare, ancient groundwater-fed fens in
Colorado's mountains, a preservation priority of Region 6 of the U.S.
Fish and Wildlife Service (USFWS) since 1999.\7\ The USFWS explains
that fens take thousands of years to develop, and essentially are
irreplaceable. Fens also perform important hydrological and water
quality functions. For example, rare native cutthroat trout often
benefit from the water-cleansing action of fens in headwaters of
streams. They also often possess unique biotic assemblages. For all
these reasons, the USFWS mitigation goal for Colorado's mountain fens
is no loss of existing habitat value. In other words, because of the
irreplaceability of the type of habitat, every reasonable effort should
be made to avoid impacting them. However, the 2020 Rule would have
categorically excluded Colorado's mountain fens from Clean Water Act
jurisdiction and permitting requirements.
---------------------------------------------------------------------------
\6\ Colorado Parks and Wildlife, https://cpw.state.co.us/aboutus/
Pages/
Wetlands.aspx#: :text=Why%20should%20you%20care%3F,lost%20half%20of%20it
s%20wetlands.
\7\ US FWS Region 6, https://www.fws.gov/mountain-prairie/es/fen/
FWSRegion6FenPolicy
1999.pdf
---------------------------------------------------------------------------
Taking into account both isolated, non-floodplain wetlands and the
various categories of floodplain wetlands that do not abut or have a
clear surface water connection to perennial and intermittent streams,
recent geospatial modeling estimates indicate that tens of millions of
the nation's remaining wetlands could have lost Clean Water Act
protections due to the 2020 Rule's insistence upon evidence of a
surface water connection to a tributary in a ``typical year.'' \8\ The
Revised Definition Rule's reversal of the 2020 Rule's roll-back of
wetland jurisdiction is especially important at a time when climate
change is driving long-term aridification of the Colorado River
Basin.\9\ Given that reality, scientists began realizing more than a
decade ago that comparing historic conditions to current or future ones
is increasingly unreliable.\10\
---------------------------------------------------------------------------
\8\ U.S. Fish and Wildlife Service, ``Status and Trends of Wetlands
in the Conterminous United States 2004-2009,'' at 16, 37 (2009),
available here.
\9\ Overpeck and Udall, https://www.pnas.org/content/pnas/117/22/
11856.full.pdf
\10\ Stationarity is dead, https://science.sciencemag.org/content/
319/5863/573.
---------------------------------------------------------------------------
3. The Revised Definition Rule protects sizable, sustainable economic
activity.
With the adoption of the Revised Definition Rule, the agencies also
restored the important economic driver of healthy waters that includes
the outdoor recreation economy, anglers, hunters, boaters, swimmers,
other outdoor enthusiasts, commercial fisheries and the fishing
industry. For example, as of 2020, an estimated 1.1 million people
fished and 363,000 went hunting in Colorado,\11\ which delivered $3.28
billion to the state's economy.\12\ In Colorado, recreation and tourism
accounted for twice the amount of private earnings as extractive
industries and employed more than five times as many people in
2010.\13\
---------------------------------------------------------------------------
\11\ Business for Water Stewardship, https://businessforwater.org/
wp-content/uploads/2020/06/Southwick-Technical-report-2020.pdf
\12\ Colorado Parks & Wildlife, https://cpw.state.co.us/Documents/
Trails/SCORP/2017ColoradoOutdoorRecEconomy.pdf
\13\ Benjamen Taber, Recreation in the Colorado River Basin: Is
America's Playground Under Threat?, 2012 Colorado College State of the
Rockies Report Card, at Fig's 2 and 3, accessible from: https://
www.coloradocollege.edu/dotAsset/c1d0b548-4350-4be7-b0a5-
8de6692b973b.pdf (accessed on May 17, 2021).
---------------------------------------------------------------------------
Conclusion
TU commended the EPA and ACOE for taking a significant step forward
with a revised definition that is in line with the objectives of the
Clean Water Act and is based on a compelling scientific and technical
record. TU submits this written testimony for the record in support of
the Revised Definition Rule and urges the Subcommittee to ensure that
accurate information about the Rule is conveyed in the public discourse
of the Rule, particularly about the Rule's clear protections for
America's farmers and ranchers.
Thank you for considering our views.
Sincerely,
Kate Miller,
Director of Government Affairs, Trout Unlimited.
Mrs. Napolitano. A letter from the American Fisheries
Society.
Mr. Rouzer. Without objection.
[The information follows:]
Letter of February 7, 2023, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from Douglas J. Austen, Ph.D., Executive Director,
American Fisheries Society, Submitted for the Record by Hon. Grace F.
Napolitano
February 7, 2023.
Chairman David Rouzer,
U.S. House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment, 2165 Rayburn House Office Building,
Washington, DC 20515.
Ranking Member Grace Napolitano,
U.S. House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment, 2165 Rayburn House Office Building,
Washington, DC 20515.
Dear Chairman Rouzer and Ranking Member Napolitano:
On behalf of the American Fisheries Society (AFS), thank you for
the opportunity provide testimony on the impacts of the Biden
Administration's Waters of the United States (WOTUS) rule (2023 Rule)
published in the Federal Register on January 18, 2023.
AFS is the world's oldest and largest professional society of
fisheries and aquatic scientists and managers. The Society seeks to
improve the conservation and sustainability of fisheries and aquatic
ecosystems by advancing science and promoting the development of
fisheries professionals. We greatly value the country's clean waters
and healthy aquatic ecosystems as they are critical to maintaining
fisheries and other critical ecosystem services such as supporting
biodiversity, flood control, and carbon storage.
The mandate of the Clean Water Act is to restore and maintain the
chemical, physical, and biological integrity of the nation's waters.
This can only be achieved if the definition of WOTUS is grounded in
sound science that recognizes the multiple dimensions of waterbody
connectivity: physical/hydrologic, chemical, and biological.
AFS has long supported a science-based definition of WOTUS. The
2023 Rule, seeks to balance the science with efficiency and provides
additional clarity for implementation of the rule. We oppose returning
to the 2020 Navigable Waters Protection (2020 NWPR) rule. The limited
protections in the 2020 NWPR threaten highly valued fish, fisheries,
ecosystem services, and the communities that rely on them (Colvin et
al. 2019). The 2020 NWPR removes protections for millions of miles of
headwater streams and millions of acres of wetlands and would result in
severe ecological and economic losses and cause irreparable cultural
and social damage (Cohen et al. 2016; Fesenmyer et. al. 2021; Creed et.
al. 2017; Sullivan Declaration 2020.)
More than a half century of scientific research demonstrates that
the integrity of ``traditionally navigable'' waters fundamentally
depends on tributaries--including headwater ephemeral, intermittent,
and perennial streams--as well as many associated lakes, wetlands, and
off-channel habitats (USEPA, 2015). Aquatic ecosystems depend upon
transfers of chemical components, organisms, sediment, and organic
materials among waterbodies to support the life in and around their
shores. Without the safeguards of the Clean Water Act for these streams
and wetlands, the ability of these waters to convey nutrients, provide
pathways for migrating organisms such as fish and wildlife, and serve
as a drainage and storage system for floodwaters is severely
undermined.
AFS fully supported the 2015 Clean Water Rule (2015 CWR) because it
was based on the demonstrated importance of the many physical,
chemical, and biological connections of headwaters to the ecological
condition of downstream and downslope navigable waters and their biota.
The 2015 CWR was informed by the best scientific information available
as set forth in the comprehensive scientific report that accompanied
the rule, i.e., the ``Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence''
(herein the ``Connectivity Report'' but described in the 2015 CWR as
the ``Science Report''). The Connectivity Report synthesized over 1,200
peer-reviewed publications and provided the technical basis for the
2015 CWR. In the intervening years, interdisciplinary scientific
efforts have further demonstrated the importance of protecting non-
permanent waterbodies, including intermittent and ephemeral headwater
streams and wetlands that are hydrologically and biologically connected
to navigable waters (e.g., Cohen et al. 2016, Rains, et al. 2016, Fritz
et al. 2018, Harvey et al. 2018, Leibowitz et al. 2018, Schofield et
al. 2018, Colvin et al. 2019).
In contrast, the 2020 NWPR was not based on current science and
reversed decades of protections that were put in place to ensure clean
water would be available for future generations (Sullivan et al. 2019,
Sullivan et al. 2020). The 2020 NWPR rule focused only on hydrological
surface connections to establish jurisdiction. It ignored many key
biological and chemical connections that are critical for fully
functioning aquatic ecosystems. It only recognized a limited subset of
connectivity conditions, and it relied on flow permanence and physical
abutment as measures of jurisdiction. Hence, it arbitrarily ignored
other ecologically critical aspects of physical connectivity such as
bed, banks, and high-water marks, and chemical, biological and
ecological connectivity that were incorporated in the 2015 CWR.
The 2020 NWPR eliminated protections for a staggering number of
headwater streams, which are broadly defined as portions of a river
basin that contribute to the development and maintenance of downstream
navigable waters including rivers, lakes, and oceans. Headwaters
include wetlands outside of floodplains and small streams with
permanent flow, intermittent flow, and ephemeral flows. Headwaters
affect downstream and downslope streams and wetlands; that is, they are
hydrologically, chemically, physically, biologically and ecologically
connected to what happens downstream.
Headwaters are key to the sustainability of fish stocks in both
upstream and downstream waters and should be protected (Colvin et al.,
2019). The loss of Clean Water Act protections for headwaters would
diminish ecosystem services provided by those waters, increase threats
to imperiled species, impair commercial and recreational fisheries in
both fresh and salt waters, and degrade fishes of great cultural value
to Native Americans and the recreating public.
Climate change will only exacerbate those losses. Aquatic resources
in many states, particularly in the central and western U.S., are
already stressed by overuse of water and extreme weather patterns. The
reduction in groundwater has greatly impaired flow regimes, causing
many streams to shift from perennial to intermittent or even ephemeral
(Colvin et al., 2019). Under the 2020 NWPR rule, streams and playas may
no longer be protected that were historically perennial but now have
impaired flows because of groundwater depletion. Whereas water rights
and use largely fall outside the jurisdiction of the Clean Water Act,
the negative impacts of unregulated dredge and fill within those
streams and playas would amplify the current stresses faced by aquatic
ecosystems and further reduce the potential for habitat recovery. Such
cumulative impacts increase the likelihood of future listings and
extinctions of fish, amphibians and waterfowl, thereby jeopardizing the
ecological integrity and function of our waters.
In addition to the loss of protection for headwaters, the 2020 NWPR
seeks to eliminate protections for wetlands that do not abut or have a
direct hydrologic surface connection to other WOTUS. Wetlands provide
essential ecosystem services such as protection of drinking water
quantity and quality, provision of floodwater and carbon storage, storm
damage mitigation, resilience against sea-level rise and drought, and
essential fish, shellfish, waterfowl, and wildlife habitat. Wetland
loss in some regions of the U.S. already approaches or exceeds 85
percent. As documented in the Connectivity Report, wetlands that
neighbor other WOTUS, but are not necessarily abutting or having a
direct hydrologic surface connection in a typical year, often exhibit
functional connections with other WOTUS, and should be protected. These
waters equal the size of West Virginia and the loss of ecosystem
services they provide would be staggering.
The 2023 Rule is a vast improvement over the 2020 NWPR and
represents a step forward in protecting our Nation's waters and the
critical ecosystem services they provide for people and the
environment. It appropriately recognizes that science is complex and
cannot be ignored for the convenience of administering the Clean Water
Act. The 2023 Rule addresses the major flaws with the 2020 NWPR, seeks
to balance the science with efficiency, and provides additional clarity
for implementation. It considers the science as established in the
Connectivity Report as well as more recent research on waterbody
connectivity. Further, the 2023 Rule takes a first step at addressing
climate change in the context of federal water protection. Notably, the
2023 Rule states that science does not provide bright lines relative to
defining a specific distance required for adjacency, and clearly
outlines those waters that constitute exclusions from jurisdiction. The
2023 Rule defines the geographic scope (i.e., in the region) for
purposes of significant nexus analysis. It also clarifies that wetland
complexes (i.e., two or more individual wetland areas that are
functionally related and geographically clustered) are to be considered
in the aggregate.
To more fully protect aquatic resources, we recommend that future
rule revisions provide protections to ensure chemical and biological
connectivity as well as groundwater protections.
In closing, we urge you to uphold the 2023 Rule and not return to
the 2020 NWPR for the significant harm it would cause to wildlife,
fish, fisheries and the communities that rely on them. Thank you for
the opportunity to comment. We are willing to assist should you need
additional information or consultation.
Sincerely,
Douglas J. Austen, Ph.D.,
Executive Director, American Fisheries Society.
References
Cohen, M. J., I. F. Creed, L. Alexander, N. B. Basu, A. J. K. Calhoun,
C. Craft, E. D'Amico, E. DeKeyser, L. Fowler, H. E. Golden, J. W.
Jawitz, P. Kalla, L. K. Kirkman, C. R. Lane, M. Lang, S. G.
Leibowitz, D. B. Lewis, J. Marton, D. L. McLaughlin, D. M. Mushet,
H. Raanan-Kiperwas, M. C. Rains, L. Smith, and S. C. Walls. 2016.
Do geographically isolated wetlands influence landscape functions?
Proceedings of the National Academy of Sciences of the United
States of America 113:1978-1986.
Colvin, S. A. R., S. M. P. Sullivan, P. D. Shirey, R. W. Colvin, K. O.
Winemiller, R. M. Hughes, K. D. Fausch, D. M. Infante, J. D. Olden,
K. R. Bestgen, R. J. Danehy, and L. Eby. 2019. Headwater streams
and wetlands are critical for sustaining fish, fisheries, and
ecosystem services. Fisheries 2:73-91.
Creed, I. F., C. R. Lane, J. N. Serran, L. C. Alexander, N. B. Basu, A.
J. K. Calhoun, J. R. Christensen, M. J. Cohen, C. Craft, E.
D'Amico, E. DeKeyser, L. Fowler, H. E. Golden, J. W. Jawitz, P.
Kalla, L. K. Kirkman, M. Lang, S. G. Leibowitz, D. B. Lewis, J.
Marton, D. L. McLaughlin, H. Raanan-Kiperwas, M. C. Rains, K. C.
Rains, and L. Smith. 2017. Enhancing protection for vulnerable
waters. Nature Geoscience 10:809-815.
Declaration of Dr. S. Mazeika Patricio Sullivan, California v. Wheeler
(N.D. Cal.), Case 3:20-cv-03005-RS, Document 30-18.
Fesenmyer, K.A., H.M. Neville, S.J. Wenger, and D. Leigh, Large portion
of USA streams lose protection with new interpretation of clean
water act. Freshwater Science, February 2021.
Fritz, K. M., K. A. Schofield, L. C. Alexander, M. G. McManus, H. E.
Golden, C. R. Lane, W. G. Kepner, S. D. LeDuc, J. E. DeMeester, and
A. I. Pollard. 2018. Physical and chemical connectivity of streams
and riparian wetlands to downstream waters: a synthesis. Journal of
the American Water Resources Association 54:323-345.
Harvey, J., J. Gomez-Velez, N. Schmadel, D. Scott, E. Boyer, R.
Alexander, K. Eng, A. Kettner, C. Konrad, R. Moore, J. Pizzuto, G.
Schwarz, C. Soulsby, and J. Choi. 2018. How hydrologic connectivity
regulates water quality in river corridors. Journal of the American
Water Resources Association 55:369-381.
Hughes, R. M., J. N. Rinne, and B. Calamusso. 2005. Historical changes
in large river fish assemblages of the Americas: a synthesis. Pages
603-612 in J. N. Rinne, R. M. Hughes, and B. Calamusso, editors.
Historical changes in large river fish assemblages of the Americas.
American Fisheries Society, Symposium 45, Bethesda, Maryland.
Leibowitz, S. G., P. J. Wigington, K. A. Schofield, L. C. Alexander, M.
K. Vanderhoof, and H. E. Golden. 2018. Connectivity of streams and
wetlands to downstream waters: an integrated systems framework.
Journal of the American Water Resources Association 54:298-322.
Leprieur F., O. Beauchard, S. Blanchet, T. Oberdorff, and S. Brosse.
2008. Fish invasions in the world's river systems: when natural
processes are blurred by human activities. PLoS Biol 6(2):e28.
doi:10.1371/journal.pbio.0060028
Perkin, J. S., K. B. Gido, J. A. Falke, K. D. Fausch, H. Crockett, E.
R. Johnson, and J. Sanderson. 2017. Groundwater declines are linked
to changes in Great Plains stream fish assemblages. Proceedings of
the National Academy of Sciences of the United States of America
114:7373-7378.
Rains, M. C., S. G. Leibowitz, M. J. Cohen, I. F. Creed, H. E. Golden,
J. W. Jawitz, P. Kalla, C. R. Lane, M. W. Lang, and D. L.
McLaughlin. 2016. Geographically isolated wetlands are part of the
hydrological landscape. Hydrological Processes 30:153-160.
Schofield, K. A., L. C. Alexander, C. E. Ridley, M. K. Vanderhoof, K.
M. Fritz, B. C. Autrey, J. E. DeMeester, W. G. Kepner, C. R. Lane,
S. G. Leibowitz, and A. I. Pollard. 2018. Biota connect aquatic
habitats throughout freshwater ecosystem mosaics. Journal of the
American Water Resources Association 54:372-399.
Stoddard, J. L., D. V. Peck, A.R. Olsen, D. P. Larsen, J. Van Sickle,
C. P. Hawkins, R. M. Hughes, T. R. Whittier, G. Lomnicky, A. T.
Herlihy, P. R. Kaufmann, S. A. Peterson, P. L. Ringold, S. G.
Paulsen, and R. Blair. 2005. Western streams and rivers statistical
summary. EPA 620/R-05/006, U.S. Environmental Protection Agency,
Washington, D.C.
Sullivan, S.M.P., Rains, M.C., Rodewald, Buzbee, W.W., and A.D
Rosemond. 2020. Distorting science, putting water at risk. Science
369:766-768.
Sullivan, S.M.P., Rains, M.C., and A.D. Rodewald. 2019. The proposed
change to the definition of ``waters of the United States'' flouts
sounds science. Proceedings of the National Academy of Sciences
116(24):11558-11561.
U.S. Environmental Protection Agency. 2015. Connectivity of streams and
wetlands to downstream waters: a review and synthesis of the
scientific evidence (final report). U.S. Environmental Protection
Agency, EPA/600/R-14/475F, Washington, D.C.
U.S. Environmental Protection Agency and U.S. Army Corps of Engineers.
2020. The navigable waters protection rule: definition of ``waters
of the United States.'' Federal Register 85:77(21 April
2020):22250.
U.S. Army Corps of Engineers and U.S. Environmental Protection Agency.
2015. Clean water rule: definition of ``waters of the United
States.'' Federal Register 80(29 June 2015):37054.
U.S. Environmental Protection Agency and U.S. Army Corps of Engineers.
2022. Clean water rule: definition of ``waters of the United
States.'' Federal Register 88 (18 January 2023): 3004
Mrs. Napolitano. That is it. Thank you.
Mr. Rouzer. I thank the gentlelady.
As a reminder, for documents submitted into the record, we
would ask that you also please email those documents to
[email protected]. Again, that is DocumentsTI@
mail.house.gov.
I would now like to welcome our witnesses and thank them
for being here today. Mr. Garrett Hawkins, president of the
Missouri Farm Bureau. Ms. Alicia Huey, chairman of the National
Association of Home Builders. Mr. Mark Williams, environmental
manager, Luck Companies, on behalf of the National Stone, Sand
& Gravel Association. Ms. Susan Parker Bodine, partner, Earth &
Water Law LLC. And Mr. Dave Owen, professor of law and faculty
director of scholarly publications, UC College of Law, San
Francisco.
Thank you all for coming. We appreciate the opportunity to
hear from you today.
As you know, when the light hits yellow, that means to wind
it down. We ask that you keep your testimony as close as you
can to 5 minutes. If you run over 5 minutes, I will have to
shut you down, and I don't want to do that. So, try to keep it
within the time limit.
Mr. Chairman, did you have anything you would like to
mention?
Mr. Graves of Missouri. Yes. Thanks for giving me just a
second to thank Garrett Hawkins for being here. Garrett is the
president of the Missouri Farm Bureau. Before he was elected to
lead the Farm Bureau in our great State, he was the deputy
director of agriculture in Missouri, and he served with Farm
Bureau as the director of all national legislative programs.
So, he has been working with farmers and ranchers from all
across Missouri, and for that matter, from across the country,
when it comes to regulatory issues, including WOTUS, for almost
20 years, I believe.
So, I do appreciate you making the trip out here, and
thanks for being here. I look forward to hearing what you have
to say.
Mr. Rouzer. I ask unanimous consent that the witnesses'
full statements be included in the record.
Without objection, so ordered.
So, now we will start with Mr. Hawkins.
You are recognized for 5 minutes for your testimony.
TESTIMONY OF GARRETT HAWKINS, PRESIDENT, MISSOURI FARM BUREAU;
ALICIA HUEY, CHAIRMAN OF THE BOARD, NATIONAL ASSOCIATION OF
HOME BUILDERS; MARK WILLIAMS, ENVIRONMENTAL MANAGER, LUCK
COMPANIES, ON BEHALF OF THE NATIONAL STONE, SAND & GRAVEL
ASSOCIATION; SUSAN PARKER BODINE, PARTNER, EARTH & WATER LAW
LLC; AND DAVE OWEN, HARRY D. SUNDERLAND PROFESSOR OF LAW AND
FACULTY DIRECTOR OF SCHOLARLY PUBLICATIONS, UNIVERSITY OF
CALIFORNIA COLLEGE OF LAW, SAN FRANCISCO
TESTIMONY OF GARRETT HAWKINS, PRESIDENT, MISSOURI FARM BUREAU
Mr. Hawkins. Well, thank you, Chairman Graves, for your
leadership and your kind words.
Chairman Rouzer and Ranking Member Napolitano, thank for
the opportunity to testify today.
My name is Garrett Hawkins, and I serve as president of the
Missouri Farm Bureau. I am a fifth-generation farmer, a
cattleman to be specific, from Appleton City, Missouri.
It is an honor to represent the American Farm Bureau
Federation, and I speak on behalf of thousands of farm and
ranch families, hard-working farm and ranch families, that
produce the food, fiber, and renewable fuel that our Nation and
our world depend upon.
For farmers and ranchers, our livelihood depends on healthy
soils and clean water. We support the Clean Water Act. However,
the vagueness of where jurisdictional lines lie has created
confusion for landowners.
Unfortunately, we have experienced uncertainty for decades
due to ever-changing rulemakings that redefine the Clean Water
Act's scope. As a result, landowners, small businesses, and
American families are the ones who have suffered the most.
The definition of WOTUS is critically important to farmers
and ranchers, which is why we have participated in numerous
rulemakings, legislation, and litigation on this issue for
decades.
Unfortunately, our members are extremely disappointed by
the Biden administration's new WOTUS rule.
The new rule will greatly expand the Federal Government's
reach over private property by allowing them to assert
jurisdiction over ephemeral drainages, such as ditches, swales,
and low spots on a farm field. The use of the ``significant
nexus'' test allows the agencies to aggregate waters together.
And the reliance on the vague terms provides the agencies the
latitude to reach whatever conclusion they please.
It is impossible for any farmer to know if a feature on
their property is a WOTUS.
Considering these features as jurisdictional waters opens
up the potential for regulation of activities that move dirt or
apply products to the land. Everyday farm and ranch activity,
such as tillage, planting, or even fence building in or near
these features, could trigger the Clean Water Act's harsh civil
or even criminal penalties unless a permit is obtained.
As an example, in Missouri, under the pre-2015 regulatory
regime, EPA sent a threatening letter to a landowner which
included severe fines and mitigation requirements because he
was simply trying to save his property from eroding by placing
rock along his streambank.
This is a classic case of heavy-handed punitive action
against a landowner as EPA claimed jurisdiction on the small
creek that ran through his property. They asserted the creek
had a significant nexus to the Mississippi River via two other
connecting rivers.
To add insult to injury, the agencies claim the costs
associated with this rule are de minimis. This conclusion can
only be made by failing to consider the entire gamut of costs
that landowners will incur.
One must consider not only the cost of the permit, but also
the expenses for experts needed to navigate the process, such
as environmental consultants, attorneys, and engineers. You
must also consider the cost of mitigation and project delays,
which makes the process beyond the means of many.
One of the most important factors in the WOTUS debate
centers around a highly consequential legal case that is
currently being considered before the Supreme Court, Sackett v.
EPA. This case should inform the agencies of the proper scope
of a WOTUS definition. Finalizing this rule injects only more
uncertainty for the regulated community.
The American Farm Bureau, Missouri Farm Bureau, numerous
other organizations, and over 200 Members of Congress urge the
agencies to halt this rulemaking because of this. It defies
logic that the agencies would go ahead with the development of
this rule knowing that a directive from the Supreme Court will
be handed down imminently.
Farmers and ranchers are extremely frustrated that our
concerns were not recognized in the final rule. This new rule
will create more confusion for landowners and will harm
important economic drivers that benefit our communities. This
unnecessary regulatory redtape places a burden on farmers and
ranchers while stripping the States of their regulatory role.
Thank you for the opportunity to share our perspective on
this important issue. And I want to stress again that we as
farmers support clean water, but we also need a clear rule.
I look forward to taking your questions.
[Mr. Hawkins' prepared statement follows:]
Prepared Statement of Garrett Hawkins, President, Missouri Farm Bureau
Chairman Rouzer and Ranking Member Napolitano, thank you for the
opportunity to testify today. My name is Garrett Hawkins and I serve as
President of Missouri Farm Bureau (MOFB). I am a fifth-generation
farmer from Appleton City, Missouri, and the third generation in my
family to own and operate the farm on which we live today. Agriculture
runs deep in our extended family and spans livestock, row crop, and
dairy production. It is an honor to be here representing the thousands
of hard-working farm and ranch families that produce the abundant food,
fiber, and renewable fuel that our nation and the world depend on.
The American Farm Bureau Federation (AFBF) is the Voice of
Agriculture and no one cares more deeply about the health of our
environment than our members--the nation's hardworking farm and ranch
families. Unlike many other industry sectors, the livelihood of our
businesses depends on healthy soils and clean water. We support the
objectives of federal environmental statutes such as the Clean Water
Act (CWA), however the ambiguity of where the line between federal and
state jurisdiction lies has created confusion for landowners.
Unfortunately, we have lived in a world of regulatory uncertainty for
decades due to everchanging rulemakings that redefine the scope of the
CWA. We have seen WOTUS definitions change with each Administration,
guidance documents offered and then rescinded and confusing litigation
that have provided more questions than answers. Landowners, small
businesses, and American families are the ones who suffer the most.
Once again, the Environmental Protection Agency and the U.S. Army
Corps of Engineers (the Agencies) have finalized a new regulatory
definition of ``waters of the United States'' (WOTUS) that greatly
expands the federal government's role in regulating land use. I am
pleased to share my perspective as a farmer on this rule and its
potential impact on agricultural producers all across the nation.
The New WOTUS Rule Will Profoundly Affect Everyday Farming and Ranching
Activities.
The definition of WOTUS is critically important to farmers and
ranchers across the country, which is why AFBF and state Farm Bureaus
have participated in numerous rulemakings, legislative proceedings and
litigation on this issue for decades. Farming and ranching are water-
dependent enterprises. Whether they are growing plants or raising
animals, farmers and ranchers need water. For this reason, farming and
ranching tends to occur on lands where there is either plentiful
rainfall or adequate water available for irrigation. There are many
features on those lands that are wet only when it rains and that may be
miles from the nearest ``navigable'' water. Farmers and ranchers regard
these features as simply low spots on their land.
Additionally, many farm and ranch operations rely on ponds used for
purposes such as livestock watering, providing irrigation water, or
settling and filtering farm runoff. Irrigation ditches also carry
flowing water to fields throughout the growing season as farmers and
ranchers open and close irrigation gates to allow water to reach
particular fields. These irrigation ditches are typically close to
larger sources of water, irrigation canals, or actual navigable waters
that are the source of irrigation water--and they channel return flows
back to these source waters. In short, America's farm and ranch lands
are an intricate maze of ditches, ponds, wetlands, and so-called
``ephemeral'' drainages.
Considering these features as jurisdictional ``waters'' opens up
the potential for regulation of activities on those lands that move
dirt or apply products to the land. Everyday activities such as
tillage, planting, or fence building in or near ephemeral drainages,
ditches, or low spots could trigger the CWA's harsh civil or even
criminal penalties unless a permit is obtained. Farmers need to apply
weed, insect, and disease control products to protect their crops.
Fertilizer application is another necessary and beneficial aspect of
many farming operations that is nonetheless swept into the CWA's broad
scope (even organic fertilizer, i.e., manure). 40 C.F.R. Sec. 122.2
(defining ``pollutant''). On much of our most productive farmlands
(i.e., areas with plenty of rain), it would be extremely difficult to
avoid entirely the small wetlands, ephemeral drainages, and ditches in
and around farm fields when applying crop protection products and
fertilizer. And yet, permits could also be required for those
activities, and even accidental deposition would be unlawful, even when
those features are completely dry and even harder to differentiate from
the rest of the fields.
The tens of thousands of dollars in additional costs for federal
permitting of ordinary farming activities are beyond the means of many
small business farmers and ranchers. And even those farmers and
ranchers who can afford it should not be forced to wait months, or even
years, for a federal permit to till, plant, fertilize, or carry out any
of the other ordinary farming and ranching activities on their lands.
For all of these reasons, farmers and ranchers have a keen interest in
how WOTUS is defined.
Unfortunately, our members are disappointed by the Agencies' final
rule. We feel strongly that the Navigable Waters Protection Rule (NWPR)
was a clear, defensible rule that appropriately balanced the objective,
goals, and policies of the CWA. The Agencies should have kept the NWPR
in place, rather than revert to definitions of WOTUS that test the
limits of federal authority under the Commerce Clause and are not
necessary to protect the nation's water resources. The agencies can
ensure clean water for all Americans through a blend of the CWA's
regulatory and non-regulatory approaches, just as Congress intended. It
is unnecessary (and unlawful) to define non-navigable, intrastate,
mostly dry features that are far removed from navigable waters as
``waters of the United States.''
The Rule Thrusts Farmers and Ranchers Back Into a World of Costly
Uncertainty and Inconsistency.
The 2015 WOTUS Rule dramatically expanded the scope of CWA
jurisdiction over land used for normal farming and ranching activities.
The 2022 Rule is different only in degree and timing, not kind. The
Agencies aggregation policy potentially allows them to assert
jurisdiction over any sometimes-wet feature which, taken together with
other sometimes-wet features in the region (broadly defined), have what
the Agencies consider to be a ``significant nexus'' on a ``foundational
water.'' But the term ``significant nexus'' generated significant
confusion and inconsistent results under the pre-2015 regime, and this
rule is likely to only make things worse. Furthermore, the process to
arrive at a jurisdictional determination is tortuous and costly. A
jurisdictional determination could take between six months and a year
to receive, and in the meantime a farmer or rancher is stuck in limbo.
Adding insult to injury, the use of case-by-case determinations
threatens to create a seriously unequal playing field, where identical
features may be viewed as jurisdictional or not depending upon where
the property is located. This is not a dependable, durable, or clear
rule. Rather, the Agencies have set up a system that is based in
arbitrary, interpretation-based decision-making. Furthermore, it is
unclear whether or not the Agencies are equipped to respond to these
determinations in a timely manner, increasing the potential for long
wait times as farmers and ranchers are forced to comply.
Perversely, the Agencies' broad assertion of jurisdiction can make
it more difficult for farmers and ranchers to engage in soil
conservation activities. Farmers and ranchers have more incentive than
most to preserve topsoil on their land; as such, where land is at risk
of erosion, they may want to engage in mitigation activities. Farmers
and ranchers also often take on projects that provide stormwater
management, wildlife habitat, flood control, and nutrient processing
and improve overall water quality in uplands and ephemeral features.
But, if they cannot do this without applying for a federal permit, it
may be cost-prohibitive, resulting in environmental degradation, not
protection.
This rule threatens to impede farmers' and ranchers' ability to
provide safe, affordable, and abundant food, fuel, and fiber to the
citizens of this nation and the world. Their concerns are not
hyperbole, nor are they isolated occurrences. They are lived
experiences illustrating the pitfalls of returning to an overly
expansive definition of ``waters of the United States'' and,
specifically, an outsized view of what it means for a water to have a
``significant nexus.''
The Significant Nexus Standard May Lead To Potentially Unlimited
Jurisdiction.
While the Agencies have resisted the urge to categorically regulate
all tributaries and adjacent waters like they did in the 2015 Rule, the
case-by-case approach that they use in this WOTUS rule is no less of an
overreach. The Agencies once again resurrect the same broad and
confusing significant nexus standard that was the foundation for the
2015 Rule. It is clear the Agencies will just expand their jurisdiction
one watershed at a time, instead of by general fiat--but it is only a
matter of time until the Agencies will find a significant nexus. This
domino effect illustrates the almost limitless jurisdiction that the
Agencies have over private property.
The significant nexus test can be used to assert jurisdiction over
tributaries, adjacent wetlands, and basically any ``other water''
because the rule uses undefined, amorphous terms like ``similarly
situated,'' ``in the region'' and ``material influence'' that will
leave farmers and ranchers guessing about whether waters on their lands
are WOTUS. This suggests that regulators can manipulate the standard to
reach whatever outcomes they please and that farmers and ranchers may
not know the outcomes until they are already exposed to civil and
criminal liability, including devastating penalties. As an example, in
Missouri, under the pre-2015 regulatory regime, EPA sent a threatening
letter to a landowner, which included fines and mitigation
requirements, because he was simply trying to save his property from
eroding by placing rock along his streambank. This is a classic case of
heavy-handed, punitive action against a landowner as EPA claimed
jurisdiction on the small creek that ran through his property, as it
asserted the creek had a ``significant nexus'' to the Mississippi River
via two other connecting rivers.
Because of the subjective nature of the significant nexus test, it
all but guarantees that regulators' assessments are bound to vary from
field-office to field-office and case to case. This approach does not
give ordinary farmers and ranchers fair notice of when the CWA actually
applies to their lands or conduct, nor does it provide any assurance
against arbitrary or discriminatory enforcement. For these reasons,
this rulemaking is unconstitutionally vague.
The Case-By-Case Regulation of Ephemeral Drainages Is Unnecessary.
Much of where we disagree comes down to one classification of
``waters'': ephemeral drainage features. As previously mentioned,
ephemeral drainages are dry land--they are not flowing rivers or
streams. It is simply shocking to property owners to hear that a
``tributary'' can be interpreted to reach ephemerals and sweep in many
features that look just like land. The NWPR provided important
clarification regarding the status of ephemeral streams that flowed
only in response to precipitation by correctly concluding that they
were not WOTUS. The Agencies' rapid about-face in this rulemaking is
disappointing, to say the least.
The Agencies set off on the wrong foot by failing to define
tributary in the first place. The lack of a definition of tributary
with measurable criteria results in significant vagueness and fairness
concerns, especially where the application of ``tributary'' could
substantially expand or limit the scope of jurisdiction under the CWA.
By failing to provide clarity, the Agencies are forcing farmers to
either: (1) presume that an ephemeral drainage that carries water only
when it rains will be deemed a jurisdictional tributary, (2) seek a
jurisdictional determination from the Corps, or (3) take a chance that
their activities near or in such features may result in unlawful
discharges carrying civil penalties of nearly $60,000 a day.\1\ Even
worse, a farmer could face criminal liability with jail time and up to
$100,000 a day in fines. With such stiff statutory penalties at stake--
including the loss of one's own personal liberty--farmers and ranchers
deserve more clarity.
---------------------------------------------------------------------------
\1\ See 87 Fed. Reg. 1,676, 1,678 (Jan. 12, 2022).
---------------------------------------------------------------------------
Ultimately, the question is not whether tributaries or ephemeral
streams are ``important'' or may as a scientific matter have some
connection with downstream navigable waters; rather, the question is
whether they should be considered as falling within the bounds of
federal jurisdiction. As with so many other categories in the
rulemaking, the agencies collapse that distinction. The NWPR was
correct to exclude ephemeral streams categorically, and the Agencies
are wrong to dismiss that approach.
The Adjacency Category Should Be Limited to Wetlands that Directly Abut
Other WOTUS.
The adjacency category is also rife with confusion. First, the
rule's approach to ``relatively permanent'' is not consistent with the
plurality's opinion in Rapanos v. United States, 547 U.S. 715 (2006),
because the Agencies deprive the Court's requirement for a
``continuous'' connection of all meaning by turning it into a mere
``physical connection or ecological connection'' test. Further, the
criteria for establishing whether a wetland is ``adjacent''--such as
whether a ``shallow'' subsurface connection exists or whether wetlands
are in reasonably close proximity to a jurisdictional water--stray too
far from the plurality's test in Rapanos and raise vagueness and fair
notice concerns.
We also oppose the significant nexus approach to adjacent wetlands
used in this rule. The Agencies' approach of aggregating wetlands is
flatly contrary to Justice Kennedy's requirement that each wetland be
judged in its own right to determine whether it (and it alone) bears a
significant nexus to traditional navigable waters. This approach
expands the reach of the significant nexus test even farther and is
even less clearly implementable.
We believe that the Agencies should assert jurisdiction over only
those wetlands that are directly abutting ``waters of the United
States;'' which would provide much needed clarity that is capable of
easy application in the field. Only those wetlands that directly touch
``waters of the United States'' should be considered ``adjacent.''
The Broad Sweep of the ``Other Waters'' Category is Problematic
The most obvious example of the rule's expansion of regulatory
reach lies in the ``other waters'' category. This new category would
reach many intrastate, non-navigable water features that would be
considered ``isolated.''
Worse still is the rule's application of the significant nexus
standard to ``other waters,'' not least because, if that standard is
ever to be applied, it should be to wetlands, and wetlands only.
Applying the significant nexus standard elsewhere allows the Agencies
to aggregate all similarly situated ``other waters'' (e.g., prairie
potholes or ponds that are not part of a tributary system) across an
entire watershed and claim jurisdiction over all such features based on
a finding that they collectively perform a single important function
for a downstream ``foundational'' water. This is plainly not what
Congress intended, and not what the Supreme Court would allow. Through
this rule, countless small wetlands or other small waters that are far
removed from traditional navigable waters (including ephemeral
tributaries and ditches) or coast nevertheless will be potentially
within the scope of federal jurisdiction.
The Agencies should have withdrawn the ``other waters'' category.
Their ability to aggregate waters together will greatly expand the
federal reach and it will be absolutely impossible for any farmer or
rancher to know if a jurisdictional ``other water'' is located on their
property.
The Exemptions Are Challenging to Use
Ditch Exclusion:
Ditches and similar water features commonly found on farms that are
used to collect, convey, or retain water should be excluded from the
definition of ``waters of the United States.'' Without adequate
drainage, farmlands could remain saturated after rain events and unable
to provide adequate aeration for crop root development. Drainage
ditches and other water management structures can help increase crop
yields and ensure better field conditions for timely planting and
harvesting. In areas without sufficient rainfall, irrigation ditches
and canals are needed to connect fields to water supplies and to
collect and convey water that leaves fields after irrigation. Put
simply, ditches are vitally important to support American agriculture
and ultimately, to feed the growing population.
While this rule does provide a ditch exclusion, unfortunately, it
is not particularly meaningful because it is limited to features
constructed on dry land or upland. Because these features are
constructed to store water, it would not typically be useful for them
to be constructed along the tops of ridges, for example. Rather, often
the only rational place to construct a ditch or a farm or stock pond is
in a naturally low area to capture stormwater that enters the ditch or
pond through sheet flow and ephemeral drainages. Depending on the
topography of a given patch of land, ditch or pond construction may be
infeasible without some excavation in a natural ephemeral drainage or a
low area with wetland characteristics.
Prior Converted Cropland Exclusion:
America's farmers and ranchers support the 2023 Rule's maintaining
of the decades-old exclusion for prior converted croplands (``PCC''),
of which there are approximately 53 million acres in the United States.
Farmers and ranchers across the country rely on this critical exclusion
which establishes that PCC may be used for any purposes, so long as
wetland conditions have not returned. In practice, however, numerous
issues have arisen regarding the interpretation and application of the
PCC exclusion. For this reason, we have long advocated for a clear,
commonsense definition and clarification of PCC in the Agencies'
regulations. We welcomed the NWPR's approach to PCC and are
disappointed to see that this rule fails to carry forward the NWPR's
definition of PCC, which was designed to improve clarity and
consistency. For example, the lack of a clear definition of PCC has
presented problems in the past regarding when PCC can be ``recaptured''
and treated as jurisdictional.
The Agencies failed to acknowledge our strong opposition to the
application of USDA's ``change in use'' principle. Additionally, they
have failed to clearly convey if PCC that is shifted to non-
agricultural use becomes subject to CWA jurisdiction. We have presented
these questions to both EPA and Corps officials and have received
completely different answers. Incorporating a ``change in use'' policy
into the PCC exclusion would upend nearly 30 years of largely
consistent implementation in accordance with the 1993 Rule. While we
acknowledge that the Agencies have attempted to make constructive
changes, the result fell well short of that goal.
Real World Impacts of An Expansive WOTUS Rule
The Agencies claim that the costs associated with this rule are de
minimis. This conclusion can only be reached by failing to consider the
entire gamut of costs that landowners will incur. One must consider not
only the cost of the permit, but also the expenses for experts needed
to navigate the permitting process--such as environmental consultants,
attorneys and engineers. You must also consider the cost of mitigation
and project delays, which can be exorbitant and makes the process
simply untenable for many. These costs can amount to a $500/acre or
greater decrease in value of the land. Mitigation costs to proceed with
development could reach thousands of dollars per linear foot.
Additionally, CWA compliance may also trigger review under other
federal environmental statutes, such as the Endangered Species Act and
the National Historic Preservation Act. Many small businesses are
unable to take on these additional costs and they have no choice but to
pass it on to their customers. Expansive regulatory actions like this
new WOTUS definition will exacerbate the affordability challenges that
plague many American families. This rule puts us further away from the
goal of providing affordable and accessible food, housing and energy.
The Rule Fails to Respect the States' Role in Protecting Waters
Additionally, the rule completely usurps the states' role in
protecting our nation's waters. While many aspects of the CWA are
unclear, one area of certainty is that Congress intended for the states
to play an important role in regulating land within their borders. The
objective of the CWA detailed in section 101B explains that
environmental protections are a shared responsibility between the
federal government and state governments. This language only solidifies
the notion that there is a point where federal jurisdiction ends and
state jurisdiction begins. However, this newly finalized WOTUS rule
would greatly expand the federal government's role, effectively cutting
against Congressional intent under the CWA. It is our belief that the
states should retain the authority to protect ephemeral features, not
the federal government.
No WOTUS Before SCOTUS
One of the most important factors in the WOTUS debate centers
around a highly consequential legal case that is currently being
considered before the Supreme Court: Sackett v. EPA. It is undeniable
that this case has the potential to inject great certainty into the new
WOTUS definition. The question before the High Court is whether the
Army Corps can use the significant nexus test to assert jurisdiction.
Given all of the legitimate legal concerns associated with this
regulatory test, there is a strong likelihood that the Court will
prevent the Agencies from using it. It defies logic that the Agencies
would go ahead with the development of this rule, knowing that a
directive from the Supreme Court will be handed down imminently.
Considerable government resources have been expended to craft this
rule, which will only be wasted when the Agencies have to return to the
drawing board after a decision is handed down. Additionally,
introducing a new regulatory definition, to an already convoluted
compliance process, is harmful to the regulated community. We must now
adapt to these new and confusing rules and our ability to plan any
future business development will be hindered. Simply put, the Agencies
should have waited until a decision was handed down before finalizing
this rule.
Conclusion
Our nation's farmers and ranchers are very frustrated that our
concerns were not recognized in the finalized rule. Retaining the NWPR
would have been a far preferable alternative, given the certainty and
predictability it provided. This new rule will only create more
confusion for landowners and will inevitably slow down many of the
important economic drivers that benefit our communities. This
unnecessary regulatory red-tape places a burden on our nation's farmers
and ranchers while stripping the states of their historic regulatory
role. Farmers and ranchers want clean water and clear rules, so they
can remain focused on what they do best--providing food, fiber and
renewable fuel for our nation and the world.
Mr. Rouzer. I thank the gentleman. And right on time.
Ms. Huey, 5 minutes.
TESTIMONY OF ALICIA HUEY, CHAIRMAN OF THE BOARD, NATIONAL
ASSOCIATION OF HOME BUILDERS
Ms. Huey. Thank you, Chairman Rouzer and Ranking Member
Napolitano and members of this committee. On behalf of more
than 140,000 members of the National Association of Home
Builders, I appreciate the opportunity to testify on the
impacts to the home building industry on the recent rule of
waters of the U.S.
My name is Alicia Huey. I am president of AGH Homes, Inc.,
a custom builder and developer for over 30 years near
Birmingham, Alabama. I serve as chairman of the NAHB board of
directors.
I had the opportunity to participate in the agencies' WOTUS
outreach. I recommended they avoid cumbersome jurisdictional
concepts like the ``significant nexus'' test and provide
clarity and certainty to the home building industry.
After seeing the rule, I know the agencies ignored my
advice.
It is difficult to overstate the impact of regulations on
housing affordability. An NAHB study found that government
regulations from Federal, State, and local governments account
for up to 25 percent of the price of a new single-family home
and over 40 percent of multifamily development.
Further, for every $1,000 increase in a median-priced home,
it will price out over 117,000 households.
Creating lots and building homes requires substantial
earth-moving activity. It has never been easy for builders or
land developers to tell if their activities may impact a WOTUS
and therefore require a Federal permit.
Home building activities are unique, and they are regulated
twice under the Clean Water Act. Permitting requirements for
controlling stormwater discharges and fill are triggered when
those activities impact a WOTUS.
Homebuilders rely on a timely and consistent jurisdictional
determination process to know when they need to get a permit.
A clear definition of WOTUS that bases Federal jurisdiction
upon observable landscape features is essential for small
homebuilders. The rule's reliance upon the ``significant
nexus'' test during the JD process falls short of providing the
clarity and certainty the home building industry needs.
The ``significant nexus'' test requires a Federal regulator
to perform a case-by-case analysis on all nonnavigable isolated
ephemeral waters before issuing the homebuilder a JD.
As Federal authority over private property increases, so do
bureaucratic delays for homebuilders awaiting JDs while Federal
permitting requirements increase. Our members are experiencing
6- to 12-month delays in securing JDs, particularly when their
water requires a ``significant nexus'' test. This is in
addition to significant delays during the permit process.
Living under a regulatory regime that relies on the
``significant nexus'' test and determinations from an unelected
bureaucrat will make home building inefficient and costly.
Home building is most often financed using loans. During
the highest inflationary period that our country has seen in
over 40 years, we are being asked to float our finances while
we wait for a decision under the ``significant nexus'' test.
These delays cost real money and directly impact the cost of
housing.
Unfortunately, homebuilders need to rely on the agencies
for answers or be required to pay tens of thousands of dollars
to consultants to help us comply with the Clean Water Act.
These consultant fees are being passed down to the home buyers
and renters.
Under that rule, homebuilders knew which waters were
jurisdictional just by walking the land. A Navigable Waters
Protection Rule removed the need for hiring consultants because
it excluded waters that lacked relatively permanent flow and
eliminated the ``significant nexus'' test. The new rule does
not add new protections for our Nation's water resources but
inappropriately expands the Government's authority over
isolated and ephemeral waters.
The agencies suggest the rule provides clarity. However, it
produces more questions. The rule allows the agencies to
illegally take the easy way out by sweeping everything under
Federal authority.
If the agencies are interested in developing a meaningful
and balanced rule, they must take a more methodical and
sensible approach. The agencies are gaining more authority than
the Clean Water Act gives them, and our members must comply to
keep the process moving.
Lastly, I want to thank Chairmen Graves and Rouzer for
introducing the CRA to reverse the Biden WOTUS rule. Until that
is enacted, I encourage Congress to direct the agencies to
delay the implementation of this rule until the Supreme Court
rules on Sackett v. EPA. NAHB believes there should be no WOTUS
before SCOTUS.
Thank you for the opportunity to testify, and I look
forward to answering your questions.
[Ms. Huey's prepared statement follows:]
Prepared Statement of Alicia Huey, Chairman of the Board, National
Association of Home Builders
Chairman Rouzer, Ranking Member Napolitano, and members of the
subcommittee, on behalf of the more than 140,000 members of the
National Association of Home Builders (NAHB), I appreciate the
opportunity to testify today. My name is Alicia Huey and I am the
president of AGH Homes, Inc., a custom home building company I founded
in 2000. I have been a developer for over 30 years near Birmingham,
Alabama and was just sworn in as NAHB's Chairman of the Board.
NAHB members are involved in the home building, remodeling,
multifamily construction, land development, property management,
subcontracting and light commercial construction industries. Our
industry is primarily dominated by small businesses, with our average
builder member employing 11 employees. Since the Association's
inception in 1942, NAHB's primary goal has been to ensure that housing
is a national priority and that all Americans have access to safe,
decent and affordable housing, whether they buy or rent a home.
NAHB members are strong stewards of the environment; we recognize
the need for clean and sustainable communities that benefit our
residents and potential home buyers. NAHB members are vested in
preserving and protecting our nation's land and water resources. Since
its inception in 1972, the Clean Water Act (CWA) has helped to make
significant strides in improving the quality of our water resources and
our lives. As environmental stewards, the nation's home builders build
neighborhoods and help create thriving communities while maintaining,
protecting, and enhancing our natural resources, including our lakes,
rivers, ponds, and streams. Creating lots and building homes involves
substantial amount of earth-moving activities.
Because the U.S. Environmental Protection Agency and the U.S. Army
Corps of Engineers (hereafter ``the agencies'') have historically
asserted broad federal jurisdiction over ``waters of the US''
(hereafter ``WOTUS'') under the CWA, NAHB members must often obtain CWA
permits to address stormwater, and wetlands impacts to complete their
land development and home building projects. What is most important to
these compliance efforts is a CWA regulatory definition of WOTUS that
is consistently applied, predictable, timely, and focused on protecting
actual aquatic resources. Or as our friends at the American Farm Bureau
Federation describe, the agencies' goal when crafting a regulatory
definition of WOTUS should be clean water and clear rules. Having a
clearly understandable WOTUS regulatory definition empowers landowners
to know when their activities require CWA permits and when the
activities do not require CWA permits. Unfortunately, establishing a
clear regulatory definition of WOTUS is becoming increasingly elusive.
In addition to federal mandates under the CWA, most builders and
developers must also comply with a myriad of state and local
environmental requirements designed to protect water quality and
natural resources and promote conservation. For example, half of the
states protect waterbodies and wetlands more broadly than required
under the CWA, and twenty-three states have explicit regulatory
authority to issue permits for dredge and fill activities in
wetlands.\1\ Further, many local governments have adopted wetlands
protection ordinances and regulations that offer additional
protections.\2\ Beyond complying with these federal, state, and local
mandates, NAHB members regularly make property purchase decisions and
design, site, and develop their projects to avoid impacting and
preserving sensitive areas and seek to showcase natural resources as
important project amenities. For most of the last two decades, builders
and developers have faced constantly changing regulatory definitions of
WOTUS, making our decisions, including project financing, land
acquisitions, project design, land development, and homebuilding
activities exceedingly difficult.
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\1\ Environmental Law Institute, State Constraints: State-Imposed
Limitations on the Authority of Agencies to Regulate Waters Beyond the
Scope of the Federal Clean Water Act (May 2013).
\2\ Kusler, J., Common Questions Local Government Wetland
Protection Programs, Prepared by Association of State Wetlands Managers
and International Institute for Wetlands Science and Public Policy
(June 26, 2006), at 2.
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My business is dedicated to developing, building, and preserving
affordable housing options for all citizens. I have a unique
understanding of how the federal government's regulatory process
impacts businesses in the real world. Additional regulations make it
more difficult for me to provide homes or apartments at a price point
that is attainable for working families. More importantly, living under
a regulatory regime that relies on the significant nexus test and
determinations from an unelected federal bureaucrat will make
homebuilding inefficient and costly.
Housing is a great example of an industry that would benefit from
more intelligent and sensible regulation. According to a study
completed by the NAHB, government regulations from federal, state and
local governments account for up to 25% of the price of a new single-
family home and over 40% of multifamily development. Nearly two-thirds
of this impact is due to regulations that affect the developer with the
rest due to regulations that are imposed on the builder during
construction.\3\ The regulatory requirements we face as builders do not
just come from the federal government. A key component of effective
regulation is ensuring that federal, state, and local agencies
cooperate and coordinate to streamline permitting requirements and
respect the constitutional roles of each level of government. Notably,
more sensible regulation will translate into job growth in the
construction industry.
---------------------------------------------------------------------------
\3\ Survey conducted by Paul Emrath, National Association of Home
Builders, ``How Government Regulation Affects the Price of a New
Home,'' 2011
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The U.S. homebuilding industry is already in a recession; few
industries have struggled more recently than homebuilding. The costs of
housing for homeowners and renters is increasing due to inflation being
at a 40-year high, a broken supply chain, and building costs that are
up 19% compared to last year.\4\ Residential mortgage rates have more
than doubled since the beginning of 2022, and the difference between a
3% and 6% mortgage equates to an increase in a family's monthly
mortgage payment of more than $700 for the cost of a typical home.
Adding increased regulatory pressure on top of these challenges makes
it impossible to provide homes at an attainable price.
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\4\ Building Materials Prices Up More than 19% Year over Year,
https://www.nahb.org/blog/2022/05/building-materials-up-more-than-19-
percent-year-over-year
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2022 was the first year that single-family starts declined in 11
years, falling an estimated 12% to 999,000 units. NAHB projects that
single-family production will fall to 744,000 units this year before
rebounding to its normal pace in 2024.\5\ According to a report from
Redfin, around 63,000 home-purchase agreements in the U.S. fell through
in July 2022, which equates to 16.1% of all homes that went under
contract.\6\ NAHB economists recognize that we will need to exceed 1.1
million starts annually to reduce a deficit due to the underbuilding in
the prior decade. If the home building industry operated normally,
there would be millions more jobs in home building and related trades.
Smart regulation can help unleash that growth.
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\5\ A Housing Downturn in 2023 Followed by a Recovery in 2024,
https://www.nahb.org/news-and-economics/press-releases/2023/01/housing-
downturn-in-2023-followed-by-recovery-in-2024
\6\ Homebuyers Are Increasingly Backing Out of Deals: How To Keep
Your Sale on Track, https://moneywise.com/investing/real-estate/
homebuyers-are-backing-out-of-deals?utm_source=
syn_oath_mon&utm_medium=Z&utm_campaign=14843&utm_content=oath_mon_
14843_home+purchase+agreements+fell+through
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Our impact on the economy is more than just jobs. Buyers of new
homes and investors in rental properties add to the local tax base
through business, income and real estate taxes, and new residents buy
goods and services in the community. NAHB estimates the economic
impacts of building 100 typical single-family homes to include $28
million in wage and business profits, $11.1 million in federal, state
and local taxes, and 297 jobs. In the multifamily sector, the impacts
of building 100 typical rental apartments include $10.8 million in
wages and business profits, $4.2 million in federal, state and local
taxes and 113 jobs.\7\
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\7\ The Economic Impact of Home Building in a Typical Local Area
Income, Jobs, and Taxes Generated, https://www.nahb.org/-/media/NAHB/
news-and-economics/docs/housing-economics/economic-impact/economic-
impact-local-area-2015.pdf
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Any effort to advance our nation's housing recovery is smart
economic policy. To reach these goals, however, we need policies that
streamline and enhance existing efforts and remove regulatory hurdles,
not ones that add layers of regulatory red tape and provide minimal
benefits.
``Waters of the United States'' Final Rule:
On January 18, 2023, the Environmental Protection Agency and U.S.
Army Corps of Engineers issued a final rule redefining the scope of
waters protected under the CWA. For years, landowners and regulators
alike have been frustrated with the continued uncertainty over the
scope of federal jurisdiction over WOTUS. NAHB members initially hoped
the agencies would create a durable and flexible rule to improve the
CWA's implementation. Home builders support removing redundancy,
clarifying jurisdictional authority, and having the agencies facilitate
compliance while protecting and improving the aquatic environment.
Unfortunately, the final rule fails to provide the clarity and
certainty the construction industry seeks. This rule will increase
federal regulatory power over private property and lead to increased
litigation, permit requirements, and lengthy delays for any business
trying to comply. Equally important, these changes will not
significantly improve water quality because much of the rule improperly
encompasses water features already regulated at the state level.
Final Rule Inappropriately Expands Federal Jurisdiction, Especially
Compared to the Navigable Waters Protection Rule.
In the agencies' press release announcing the final rule, they
assert it ``establishes a clear and reasonable definition of WOTUS and
reduces the uncertainty from constantly changing regulatory definitions
that have harmed communities and our nations waters.'' \8\ This claim
is simply inaccurate as the final rule establishes a two-tiered
approach to asserting federal jurisdiction by analyzing certain water
features under the relatively permanent standard or the significant
nexus standard. By implementing this two-tiered approach to determine
this water's jurisdictional status, the agencies are giving themselves
``two bites at the apple'' to regulate impoundments, adjacent wetlands,
non-navigable intrastate waters, and ephemeral streams drainage
ditches.
---------------------------------------------------------------------------
\8\ https://www.epa.gov/newsreleases/epa-and-army-finalize-rule-
establishing-definition-wotus-and-restoring-fundamental
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The agencies intentionally created overly broad terms so they have
the authority to interpret them as they see fit in the field, including
stepping in where they may think a state has not gone far enough. The
regulatory text lacks a clear definition of ``significantly affect.''
Furthermore, key regulatory terms within the final rule remain
completely undefined including terms such as what constitutes a
``tributary,'' ``neighboring,'' and the aforementioned, ``similarly
situated waters in the region,'' giving federal regulators in the field
full and unfettered discretion to interpret and re-interpret these
important and yet undefined terms in a manner that enables the broadest
of federal jurisdiction over otherwise non-navigable, isolated, and
ephemeral waterbodies and landscape features.
Instead of providing clear regulatory definitions, the agencies
rely upon forthcoming regulatory guidance documents to explain how the
regulatory text will be further interpreted and implemented across all
Army Corps Districts. Importantly, none of these regulatory guidance
documents have been subject to public notice and comment and can be
revised or rescinded at any time. For any small business trying to
comply with the law, the last thing needed is a set of new, vague and
convoluted definitions that provide another layer of uncertainty.
Let me discuss some of the problematic features in detail:
Rule's Reliance on the Significant Nexus Test:
Through the significant nexus test, federal regulators using a
case-by-case approach must determine the jurisdictional status of
numerous types of waterbodies or landscape features based on several
vague and completely undefined factors. Ultimately, the significant
nexus process culminates with a federal regulator making a
jurisdictional determination that a waterbody or landscape feature,
either alone or in combination with similarly situated features in the
region (another undefined term), has a material influence upon the
chemical, physical, or biological integrity of a traditional navigable
water (TNW). Under the recently finalized WOTUS rule, the
``significantly affects'' test will be applied to three out of the five
jurisdictional categories, e.g., tributaries, adjacent wetlands, and
intrastate waters. These categories include features such as isolated
lakes, ponds, streams, human-made drainage ditches or even a wetland.
In the rule's preamble, the agencies outline that they will be
providing useful tools to the public with step-by-step information
needed for the agencies to make informed and consistent determinations
of federal jurisdiction. That information should be part of the
regulations and the public should have had the opportunity to comment.
Furthermore, the rule goes into effect on March 20, 2023, and the
public has yet to weigh in on any of these guidance documents. One such
regulatory guidance the agencies have just recently released is
entitled, ``Joint Coordination Memorandum to the Field Between the U.S.
Department of the Army, U.S. Army of Engineers (Corps) and the U.S.
Environmental Protection Agency (EPA).'' \9\ This joint Corps/EPA
regulatory guidance document creates a required internal interagency
review process for all draft approved jurisdictional determinations
(e.g., including those where the agency determined a feature was non-
jurisdictional) under the final rule's significantly affects standard.
Under this guidance document, the Corps districts must wait for a
minimum period of five days to allow staff within the EPA's Regional
Office to review and request additional information from the Corps
District concerning the draft jurisdictional determination (JD). Under
the guidance document, if the staff within the EPA Regional Office has
any comment or questions about the Corps district's draft JD, an
additional 14-day waiting period is triggered to allow EPA Regional
Office staff time to review, comment, or even hold a meeting with Corps
district staff to discuss its findings under the draft JD. If agreement
cannot be reached on a draft JD between Corps district staff and staff
within the EPA Regional Office, or if the draft JD concerns a
``significant affect'' determination for any feature covered under the
final rule's intrastate water jurisdictional category, then a
headquarters review by the agencies is triggered. Any headquarters
review of a draft JD triggers an additional 14-day delay but can be
extended beyond 14 days provided staff from both the agencies agree (in
writing) to an unspecified longer timeframe to complete their review of
the draft JD.
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\9\ https://www.epa.gov/system/files/documents/2022-12/
Waters%20of%20the%20United
%20States_Coordination%20Memorandum.pdf
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Importantly, nowhere within this joint regulatory guidance must the
federal agencies either notify or seek the consent of the landowner who
is seeking the JD from the Corps district. Nor under the joint guidance
does a failure on the part of the agencies to adhere to the guidance's
deadlines result in the issuance of the requested draft JD. Ultimately,
this joint guidance illustrates the unnecessary complexity and
bureaucratic delays that have become the hallmarks of the ``significant
nexus test.''
By comparison, the WOTUS definition under the Navigable Waters
Protection Rule (hereafter ``NWPR''), which the recently finalized
WOTUS rule rescinds, based federal jurisdiction on observable landscape
conditions. That rule empowered landowners to determine whether their
activities might impact a waterbody or landscape feature that is
jurisdictional under the CWA. The NWPR's definition of WOTUS did this
by requiring CWA jurisdictional features to maintain surface water
connections during a ``typical year'' to TNWs and territorial seas, and
tributaries of those features.
By linking CWA jurisdiction to observable surface conditions, the
NWPR addressed many of NAHB's concerns. For example, the original 1986
regulations and this final rule define the extent of ``adjacent
wetlands'' to encompass ambiguous terms such as ``neighboring''
features. By comparison, the NWPR clearly defined ``adjacent wetlands''
and eliminated vague and undefined regulatory concepts such as
``neighboring'' and ``similarly situated,'' which rendered the
``significant nexus'' test irrelevant, and categorically exempted from
CWA jurisdiction all ``ephemeral'' features that form only in response
to rainfall events as well as all ditches that failed to meet the
NWPR's definition of ``tributary.'' Compared to the agencies' recently
finalized WOTUS rule, the WOTUS regulatory definition under the NWPR
provided many improvements including:
Eliminated ``Significantly affects'' test: By avoiding
the onerous significant nexus test the NWPR linked federal CWA
jurisdiction to those waterbodies and landscape features that
maintained a surface water connection to another traditional navigable
water.
Encompassed far fewer adjacent wetlands: Since the NWPR
only asserted federal CWA jurisdiction over wetlands that directly abut
(i.e., touch) or maintain a surface water connection to other
jurisdictional water during a typical year (a defined term under the
NWPR) and avoided overly expansive and confusing terms like
``neighboring'' and ``similarly situated'' found under today's final
WOTUS rule.
Excluded all ephemeral features: The NWPR included both a
regulatory definition of ephemeral features and an explicit CWA
categorical jurisdictional exclusion for all such ephemeral features.,
By contrast, the recently finalized WOTUS rule not only rescinds the
NWPR's ephemeral definition and exclusion but purposefully fails to
distinguish under the final rule's ditches exclusion when ephemeral
flow equates to a CWA jurisdictional relatively permanent flow.
Narrowed federal jurisdiction over tributaries: Since the
NWPR required tributaries to maintain perennial or at least
intermittent flow, the NWPR did not depend on subsequent field surveys
such as observations of ``bed and banks and ordinary high-water mark''
(OHWM) that in arid and semi-arid areas of the country have proven to
be difficult to discern from erosional features left on the landscape
following instances of ephemeral flow. In comparison under the recently
finalized WOTUS definition, determining the presence of a tributary
return to a subjective field survey approach of locating a ``bed and
bank'' and OHWM.
Excluded more ditches: Under the NWPR all ditches were
excluded unless they met the conditions of either a TNW or a tributary.
By comparison under the recently finalized WOTUS rule, all ditches are
included unless they meet narrow exemptions.
Excluded basing jurisdiction on ``interstate waters'':
Under the NWPR, the agencies recognized that the federal government is
limited to regulating ``interstate commerce'' and that just because a
wetland or waterbody crosses a state line, it does not provide the
federal government with jurisdiction over that feature.
Compared to the WOTUS regulatory definition under the NWPR, today's
WOTUS rule subjects more areas to federal CWA jurisdiction and returns
to ambiguous regulatory terms and requires landowners to await the
results of overly complex and bureaucratic delays inherent under the
``significant nexus test'' before knowing the CWA jurisdictional status
of many non-navigable, isolated, and ephemeral features. Instead of
relying upon observable features as under the NWPR that had made making
jurisdictional determinations in the field much easier.
Intrastate Waters
The rule also provides a catchall ``intrastate waters'' category
for areas that may not fit neatly into a specific water category but
for which the agencies have retained complete discretion to find a
significant nexus on a case-by-case basis. Significantly, this also
includes the ability to make blanket jurisdictional determinations by
considering all similarly situated waters in the region to determine if
they, taken together, have a significant nexus to a TNW. The ability to
aggregate waters, even within a catchment area, further illustrates the
notion that there is no limit to federal jurisdiction under this rule.
These definitions will leave home builders in a constant state of
confusion. This unpredictability will make it difficult for my business
to comply and grow. The agencies suggest that the rule provides
clarity; however, all it does is produce more questions. Unfortunately,
builders will need to rely on the agencies for answers or be required
to pay tens of thousands of dollars to consultants to help us comply
with the CWA.
Under CWA Section 101(b), Congress explicitly recognizes the
primary responsibilities and rights of states in helping to prevent,
reduce and eliminate pollution in our waterbodies. Intrastate
waterbodies that do not impact federal commerce or other jurisdictional
waters should not be federally regulated. In fact, these waterbodies
should be expressly excluded in any definition of WOTUS moving forward.
Final Rule is Inconsistent with Supreme Court Precedent:
The CWA was designed to strike a careful balance between federal
and state authorities. This has proven to be a difficult task, and to
some extent, the efforts of the courts to provide clarity have only
added to the uncertainty. The courts have been clear on one issue,
which is that there is a limit to the federal jurisdiction of waters.
In fact, the Supreme Court has twice affirmed that the U.S.
Constitution and CWA place limits on federal authority over intrastate
waters. To view the rule through this legal framework, it is necessary
to look at the key cases:
Solid Waste Agency of Northern Cook County v. Army Corps of Engineers
(SWANCC):
In 2001, for the first time, the Supreme Court limited the federal
government's jurisdictional authority under the CWA through the SWANCC
decision. The case questioned whether the CWA conferred the Corps of
Engineers with authority over isolated, seasonal ponds at an abandoned
sand and gravel pit in suburban Chicago because they were susceptible
to being used by migratory birds. The agency tried to explain that
those isolated features impacted interstate commerce and therefore were
navigable waters. The Court rejected the Corps' assertion of
jurisdiction because the agency's authority does not extend to
isolated, abandoned sand and gravel pits with seasonal ponds, which
provide migratory bird habitats.\10\ In other words, the Corps could
not assert jurisdiction over a feature without a connection to
navigation.
---------------------------------------------------------------------------
\10\ Solid Waste Agency of Northern Cook County v. U.S. Army Corps
of Engineers, 531 U.S. 159 (2001)
---------------------------------------------------------------------------
Rapanos v. United States and Carabell v. U.S. Army Corps of
Engineering:
Both the Rapanos \11\ and Carabell \12\ cases followed the same
fact pattern: wetlands miles away from TNWs that drained through
multiple ditches, culverts, and creeks, eventually draining into a TNW.
The question of this court case was over the jurisdictional theory that
waters are jurisdictional if they have a ``hydrological connection'' to
a TNW. Rapanos provided a significant clarification that CWA
jurisdiction does not reach non-navigable features merely because they
may be hydrologically connected to downstream navigable waters. In
short, the ``any hydrologic connection'' theory was rejected.
---------------------------------------------------------------------------
\11\ Rapanos v. United States, 126 S.Ct 2208 (2006)
\12\ Carabell v. United States, 126 S.Ct. 1295 (2006)
---------------------------------------------------------------------------
However, two theories emerged from the majority's opinion in
Rapanos. The first, written by Justice Scalia, claimed that CWA
coverage extended to `` . . . only those relatively permanent,
standing, or continuously flowing [emphasis added] bodies of water
`forming geographic features that are described in ordinary parlance as
`stream[s,] . . . oceans, rivers, [and] lakes.' '' \13\ The plurality
also developed a jurisdictional rule for wetlands in particular:
``[O]nly those wetlands with a continuous surface connection to bodies
that are `waters of the United States' in their own right, so that
there is no clear demarcation between `waters' and `wetlands,' are
`adjacent to' such waters and covered by the Act.'' \14\ The second
test was authored by Justice Kennedy, who concurred with the judgment
but wrote separately for himself. He elevated the concept of
``significant nexus,'' by explaining that ``[W]etlands possess the
requisite nexus, and thus comes within the statutory phrase `navigable
waters,' if the wetlands, either alone or in combination with similarly
situated lands in the region, significantly affect the chemical,
physical, and biological integrity of other covered waters more readily
understood as `navigable.' '' \15\ ``Consistent with SWANCC and with
the need to give the term `navigable' some meaning, the Corps'
jurisdiction over wetlands depends on a significant nexus between the
wetlands in question and navigable waters in the traditional sense.''
\16\
---------------------------------------------------------------------------
\13\ Rapanos 126 S.Ct. at 2225
\14\ Id. at 2226
\15\ Id. at 2226
\16\ Id. at 2249
---------------------------------------------------------------------------
The most significant clarification that Rapanos provided was that
the five Justices agreed that CWA jurisdiction does not reach non-
navigable features merely because they are hydrologically connected to
downstream navigable water. However, many have maligned Rapanos because
the Justices failed to reach a majority opinion that announced the
``correct'' test for CWA jurisdiction. In many cases, the existence of
two tests only adds more confusion and disagreement regarding the scope
of the CWA. While the agencies face a difficult task in resolving this
conflict, the proposed rule is obviously inconsistent with these
Supreme Court decisions and will expand the scope of waters that can be
regulated by the agencies. The rule would extend coverage to many
features that are remote and/or carry only minor volumes of water, and
contrary to the Supreme Court's findings, its provisions provide no
meaningful limit to federal jurisdiction. This broad overreach is
unacceptable.
Sackett v. Environmental Protection Agency
The Supreme Court heard oral arguments in Sackett v. EPA on Monday,
October 3, 2022. The question presented in Sackett is ``Should Rapanos
be revisited to adopt the plurality's test for wetlands jurisdiction
under the Clean Water Act?'' If the Court answers this question
affirmatively, it would reject that the significant nexus test is the
proper test for determining CWA jurisdiction.
While the public waits for the Court's decision, the agencies
rushed to finalize this rule. It is especially shortsighted and a waste
of federal resources, given that the Supreme Court's upcoming ruling
under Sackett v. EPA is squarely focused on the legality of the
significant nexus test.
The Proposed Rule Ignores Federal/State Balance
While many aspects of the CWA are vague, Congress explicitly
intended to create a partnership between federal agencies and state
governments to protect our nation's water resources. Congress states in
section 101 of the CWA that ``[f]ederal agencies shall cooperate with
state and local agencies to develop comprehensive solutions to prevent,
reduce and eliminate pollution in concert with programs for managing
water resources.'' Under this notion, there is a point where federal
authority ends and state authority begins.
The rule published by the agencies, however, blatantly ignores this
history of partnership and fails to recognize that there are limits to
federal authority. If this rule is implemented as written, the federal
government will severely cripple the state's role in protecting our
nation's water resources, which would be a huge mistake and
unconstitutional. Litigation is a likely result, and while it makes its
way through the court system, regulators and businesses will be left in
a lurch.
In addition, because the change in jurisdictional authority applies
not only to section 404 of the CWA but also to all programs, the states
will be required to conduct more monitoring and develop water quality
standards for these newly jurisdictional waters in addition to those
that are already covered. States will also be required to develop total
maximum daily loads if these waters do not meet their water quality
goals. Because many of these newly designated waters are on the drier
side of the spectrum and/or will be conveyances designed to move water
from one place to another, I am particularly concerned with the impacts
this rule will have on section 402 stormwater permitting requirements
and how the states and localities may pass on the myriad of new,
onerous, and costly requirements to landowners. For many years, States
have adequately regulated their own waters and wetlands. States take
their responsibilities to protect their natural resources seriously and
do not need the federal government to meddle in their affairs and
unnecessarily assert jurisdiction. In fact, every state has the
authority to exceed federal law so long as there is a compelling
reason. If you looked around the country, you would find that many
states are protecting their natural resources more aggressively than
when the CWA was enacted--a testament to their desire and willingness
to do so.
In these times of austere budgets and competing priorities, the
agencies should heed the CWA's directive and allow the states to
maintain their prerogatives to regulate the lands and waters within
their boundaries as they see fit.
Potential Impacts on Construction:
Home building is a complex and highly regulated industry. As costs,
regulatory burdens, and delays increase, the small businesses that make
up a majority of the industry must adapt. This can include paying
higher prices for land or purchasing smaller parcels, redrawing
development, or house plans, and completing mitigation or resource
enhancement projects. All these adaptations must be financed by the
builder and ultimately arrive in the market as a combination of higher
prices for the consumers and lower output for the industry. As output
declines and jobs are lost, other sectors that buy from or sell to the
construction industry also contract and lose jobs. Builders and
developers, already crippled by the economic downturn, cannot depend
upon the future homebuying public to absorb the many costs associated
with overregulation.
Because compliance costs for regulations are often incurred before
home sales, builders and developers must essentially finance these
additional carrying costs until the property is sold. Because of the
increased price, it may take longer for the home to be sold. Carrying
these additional costs only adds more risk to an already risky business
yet is one of the difficult realities that home builders face every
day. This final rule only adds to the headwinds that our industry
faces.
Even moderate cost increases can have significant negative market
impacts. This is of particular concern in the affordable housing sector
where relatively small price increases can have an immediate impact on
low to moderate-income home buyers. Such buyers are more susceptible to
being priced out of the market. As the price of the home increases,
those on the verge of qualifying for a new home will no longer be able
to afford this purchase. As of 2021, an analysis done by NAHB
illustrates the number of households priced out of the market for a
median-priced new home due to a $1,000 price increase. Nationally, this
price difference means that when a median new home price increases from
$345,000 to $346,000, 153,967 households can no longer afford that
home.\17\
---------------------------------------------------------------------------
\17\ NAHB Priced-Out Estimates for 2021, https://www.nahb.org/-/
media/NAHB/news-and-
economics/docs/housing-economics-plus/special-studies/2021/special-
study-nahb-priced-out-
estimates-for-2021-february-2021.pdf
---------------------------------------------------------------------------
The picture becomes starker when you consider the time and cost to
obtain a CWA section 404 permit. A 2002 study found that it takes an
average of 788 days and $271,596 to obtain an individual permit and 313
days and $28,915 for a ``streamlined'' nationwide permit. Over $1.7
billion is spent annually by the private and public sectors obtaining
wetlands permits.\18\ Importantly, these ranges do not consider the
cost of mitigation, which can be exorbitant. When considering these
excesses, it becomes clear that we need to find a necessary balance
between protecting our nation's water resources and allowing citizens
to build and develop on their private land.
---------------------------------------------------------------------------
\18\ David Sunding and David Zilberman, ``The Economics of
Environmental Regulation by Licensing: An Assessment of Recent Changes
to the Wetland Permitting Process,'' 2002
---------------------------------------------------------------------------
Increased Number of Federal Permits:
Construction projects rely on efficient, timely, consistent
permitting procedures and review processes under CWA programs. Builders
and developers are generally ill-equipped to make their own
jurisdictional determinations and must hire outside consultants to
secure necessary permits and approval. This takes time and money.
Delays often lead to higher costs, which lead to greater risks. Onerous
permitting liabilities could delay or eventually kill a real estate
deal. If the rule is implemented as written, the ability to sell,
build, expand, or retrofit structures or properties will suffer notable
setbacks, including added costs and delays in development and
investment.
Specifically, for the ``intrastate waters'' category, builders will
be at the mercy of the agencies. Builders will have to request a
jurisdictional determination from the agencies to ensure they are not
disturbing land near an aggregated water. Consequently, an increase in
the number of jurisdictional determinations requests, across all
industries, will result in greater permitting delays as the agencies
are flooded with paperwork.
Increased Federal Consultations:
Many federal statutes tie their approval/consultation requirements
to those of the CWA--meaning that if one needs to obtain a CWA permit,
he/she must also obtain others (examples include the Endangered Species
Act, National Historic Preservation Act, and National Environmental
Policy Act). If more areas are considered jurisdictional, more CWA
permits will be required, triggering these additional statutory
reviews. Because project proponents do not have a seat at the table
during these additional reviews and the consulting agencies are not
bound by a specific time limit, builders and developers are immediately
placed at a disadvantage. Lengthened permitting times will include an
increased number of meetings, formal and informal hearings, and
appeals. These federal consultations are just another layer of red tape
that the federal government has placed on small businesses, and it is
doubtful that the agencies will be equipped to handle this inflow.
Preliminary Jurisdictional Determinations:
After the issuance and implementation of the Clean Water Rule in
2015, many home builders across the country felt helpless while waiting
for the agencies to process their jurisdictional determinations.
Instead, many within the industry turned to preliminary jurisdictional
determinations to advance the permitting process.
As the Philadelphia District of the Corps explains it, ``a
landowner, permit applicant or other affected party may elect to use a
preliminary JD to voluntarily waive or set aside questions regarding
CWA jurisdiction over a particular site, usually in the interest of
allowing the landowner to move ahead expeditiously to obtain a Corps
permit authorization where the party determines that it is in his or
her best interest to do so.'' \19\ PJDs cannot be appealed.
---------------------------------------------------------------------------
\19\ https://www.nap.usace.army.mil/Missions/Regulatory/
Jurisdictional-Determinations/
---------------------------------------------------------------------------
Essentially, our members gave up their right to defend themselves
just to move the process along. NAHB fears this will happen again with
the implementation of this final rule. Many of our members will be
stuck in permit backlogs AJD reviews so they will opt for a PJD
instead. Through this, many home builders recognize that we are giving
authority to the federal government to regulate the water that it does
not have the authority to regulate--but to speed along the process, our
members often accept this.
The WOTUS Rule's Exclusions Are Too Limited and Fails to Recognize
Longstanding Categorical Exemptions:
NAHB is concerned that the agencies' failure to recognize
longstanding categorical exclusions from federal jurisdiction under the
WOTUS final rule will result in federal overreach and unnecessary
regulatory confusion on the part of regulators and landowners. Under
the final rule, the agencies have not recodified nearly a dozen
features that were categorically excluded from CWA jurisdiction under
prior iterations of the WOTUS regulatory definition. Instead, the
agencies claim that they intend to implement exclusions under the final
rule in a manner consistent with prior agency practices, where certain
features were not specifically excluded by the rule, but the agencies
would ``generally'' not assert jurisdiction over those features. NAHB
believes that any clearly worded WOTUS regulatory definition must also
have clearly worded jurisdictional exclusions rather than relying upon
general statements by the agencies on how they have typically
interpreted prior categorical exclusions. The agencies must instead
ensure the final WOTUS rule is implemented in a consistent and clear
manner by specifying within the final rule a list of features that are
categorically excluded from jurisdiction by rule and can be relied upon
by landowners and regulators alike. NAHB had urged agencies during the
public comment process to include the following categorical exclusions
for stormwater management facilities and treatment ponds, green
infrastructure, and municipal separate storm sewer systems (MS4)
infrastructure.
Stormwater Management Facilities including Stormwater Treatment Ponds
are not WOTUS features:
NAHB members typically must secure NPDES stormwater permits before
discharging stormwater to a WOTUS or a municipal separate storm sewer
system (MS4). A required element of all NPDES stormwater permits for
active construction sites is the Storm Water Pollution Prevention Plan
(SWPPP), which identifies specific sediment and erosion control
measures necessary to protect water quality. Historically, the
preferred method for treating stormwater under an SWPPP has been using
on-site retention or dentition ponds, infiltration trenches, or other
conveyance systems. These man-made ponds and trenches are designed to
slow concentrated stormwater runoff and trap sediment to protect
receiving streams, lakes, and other downstream waterbodies (i.e., WOTUS
features). Without an explicit exclusion, however, stormwater treatment
ponds could be deemed a WOTUS because of the final WOTUS rule's overly
broad jurisdictional categories including ``tributary,'' ``adjacent
wetlands, '' or ``intrastate waters.''
While the final WOTUS rule's categorical exclusion for ``water
treatment systems'' should cover stormwater management facilities and
stormwater treatment ponds, absent a specific categorical exclusion,
NAHB remains concerned home builders could be punished. Specifically,
without such categorical exclusions for stormwater treatment ponds,
home builders face the prospect of being required to secure CWA Section
402 NPDES permits coverage to address construction-related stormwater
discharges leaving their active construction sites and a federal
wetlands permit (CWA Section 404 dredge or fill permit) for their own
discharges into their own stormwater treatment ponds. This admittingly
would be a perverse outcome and inconsistent with the common-sense
interpretation of the agencies' ``waste treatment systems'' exclusion.
Nevertheless, without an explicit categorical exclusion for stormwater
treatment ponds, developers and home builders risk having to obtain CWA
404 permits for routine maintenance activities of these facilities.
Green Infrastructure Features are not WOTUS features:
EPA has defined green infrastructure as a means of ``protecting and
restoring natural landscape features and using natural systems (or
systems engineered to mimic natural processes) to manage rainwater as a
resource,'' and the agencies tout its many benefits, including
increased climate resiliency, reduced urban island effects, lowering a
buildings' energy demands, and sustainable communities.\20\ The
agencies ``support(s) expanded use of green infrastructure to protect
and restore waters while creating more environmentally and economically
sustainable communities'' and see green infrastructure as part of its
``strategic agenda to protect waters.'' Despite the agencies'
unequivocal support for green infrastructure, there is no indication
under the final WOTUS rule that green infrastructure features such as
rain gardens, stormwater infiltration cells, and other low-impact
development techniques to manage the stormwater runoff will be covered
under the final WOTUS rule's waste treatment system exclusions. This is
troubling to NAHB's membership since localities often encourage or
require developers and builders to install green infrastructure on new
projects. By not explicitly excluding green infrastructure features
from CWA jurisdiction, the agencies have created a powerful
disincentive to developers, builders, and local governments from
installing such features moving forward. If green infrastructure
features such as rain gardens, bioswales, and other stormwater
management devices are not categorically excluded from the WOTUS
regulatory definition, then landowners and local governments alike face
the prospect of having to obtain costly and time-consuming CWA Sec. 404
permits to perform routine maintenance of these same features. A clear
disincentive to NAHB members who otherwise would consider installing
green infrastructure devices into new residential developments.
---------------------------------------------------------------------------
\20\ www.epa.gov/green-infrastructure/what-green-infrastructure
---------------------------------------------------------------------------
Municipal Separate Storm Sewer Systems (MS4) Are Not WOTUS Features:
Municipal Separate Storm Sewer Systems (MS4s) systems are owned and
operated by state and local governments and vary in size; however,
their function is universal--to transport or convey a city's stormwater
through pipes, drains, gutters and open ditches.\21\ Many MS4 systems
are regulated as point sources and therefore are required to obtain
Sec. 402 National Pollutant Discharge Elimination System permits and
develop stormwater management programs. Because exposed ditches and
intermittent streams are often part of MS4 systems, I am concerned that
the proposed may regulate MS4s (or their components) as WOTUS. This
would be problematic because these features are already regulated as a
point source. Further, there are miles of roadside ditches that are
simply there to carry stormwater from the roadways for public safety
and for which it makes little sense to consider it as federally
regulable water.
---------------------------------------------------------------------------
\21\ 40 C.F.R. Sec. 122.26(b)(8).
---------------------------------------------------------------------------
Impacts of Declaring Roadside Ditches Jurisdictional:
The dilemma caused by the CWA jurisdictional status of the common
ditch is so important to the residential construction industry because
ditches are so ubiquitous that they criss-cross the American landscape
nearly everywhere. The Federal Highways Administration estimates there
are more than 3.9 million miles of roadways within the United States,
and federal regulations generally require those roads to be drained by
ditches.\22\ \23\ Therefore, having the agencies declare even a
fraction of the millions of miles of roadside drainage ditches
jurisdictional has major regulatory and permitting ramifications for
residential developers and builders. Particularly since NAHB members
typically must install culverts, roads, and even driveways across
ditches to access their residential developments or even an individual
homebuilding lot.
---------------------------------------------------------------------------
\22\ U.S. Department of Transportation, Federal Highways
Administration, Highway Statistics 2021 Sec. 4 Highway Infrastructure,
Public road length by ownership and Federal-aid highways at https://
www.fhwa.dot.gov/policyinformation/statistics/2021/
\23\ 30 C.F.R. Sec. 816.151(d).
---------------------------------------------------------------------------
Historically, the Corps did not assert jurisdiction over roadside
drainage and irrigation ditches constructed in upland areas. In
addition, Congress established a statutory exemption from CWA Sec. 404
permitting requirements for the construction or maintenance of
irrigation or drainage ditches under CWA Section 404(f)(1)(C). The
problem for NAHB's membership is that the Corps districts have applied
the statutory exclusion from CWA 404 permitting requirements
inconsistently across the country resulting in regulatory confusion and
litigation.
Under the NWPR the agencies created an exclusion for irrigation and
drainage ditches provided those ditches were not constructed within a
wetland, relocated an existing tributary, nor satisfied the NWPR's
definition of a tributary.\24\ Because of the NWPR's ditch exclusion
and the exclusion of all ephemeral features, the jurisdictional status
of ditches narrowed under the NWPR. Furthermore, because the NWPR did
not use the ``significant nexus test,'' any isolated wetlands located
near non-jurisdictional ditches could not subsequently be deemed
jurisdictional by the agencies using a case-by-case approach. By
comparison, the current WOTUS regulatory definition eliminated the
NWPR's ditch exclusion. In addition, under the final rule, roadside
drainage ditches (including ditches with only ephemeral flow) can be
considered jurisdictional using the significant nexus test under either
the tributary or interstate water jurisdictional categories. Finally,
because the final rule returns to using the ``significant nexus test''
this means any isolated wetlands located nearby a jurisdictional ditch
can also be deemed jurisdictional.
---------------------------------------------------------------------------
\24\ 40 C.F.R. Sec. 328.3(b)(5)
---------------------------------------------------------------------------
Conclusion:
The final rule does not add new protections for our nation's water
resources but rather, inappropriately shifts the jurisdictional
authority of many drier-end features and non-navigable isolated
wetlands, streams, and drainage ditches to the federal agencies. As a
builder serving the affordable housing market, I am concerned about
additional government regulations and the continued uncertainty this
rule ensures. Builders cannot continue to provide affordable housing to
those in need while weighed down by additional regulatory burdens and
requirements like these that provide little environmental benefit.
In addition, the rule allows the agencies to illegally ``take the
easy way out'' by sweeping everything under federal authority. If the
agencies are interested in developing a meaningful and balanced rule,
they must take a more methodical and sensible approach. I have
significant concerns with the final rule, and I would encourage
Congress to direct the agencies to implement a durable and practical
definition of WOTUS.
I appreciate the opportunity to discuss these important issues.
Mr. Rouzer. I thank the gentlelady.
Mr. Williams.
TESTIMONY OF MARK WILLIAMS, ENVIRONMENTAL MANAGER, LUCK
COMPANIES, ON BEHALF OF THE NATIONAL STONE, SAND & GRAVEL
ASSOCIATION
Mr. Williams. Good morning, Chairman Rouzer, Ranking Member
Napolitano, and other members of the subcommittee. Thank you
for inviting me to testify on behalf of the National Stone,
Sand & Gravel Association at this hearing.
NSSGA is the voice of the aggregates industry. We have over
9,000 operations in nearly every congressional district,
producing over 2.5 billion tons of material that is the key
ingredient to build every home and infrastructure project in
the U.S.
My name is Mark Williams. I am the environmental manager at
Luck Companies, an aggregate producer in Virginia, North and
South Carolina, and Georgia. I have over 40 years of experience
in the water treatment industry. I am a Virginia Certified
Professional Wetland Delineator since the inception of that
program 18 years ago.
In its 100 years, Luck Companies provides aggregates that
allow communities across the region to grow and thrive. We
support numerous voluntary initiatives that improve waters,
like using aggregate materials to restore habitat for the
Atlantic sturgeon in the James River, protecting the Chesapeake
Bay shoreline, or creating wetlands and other critical
habitats, and have even donated a former quarry to Loudoun
County in Virginia for future drinking water supplies.
Like all NSSGA members, we go above and beyond the many
local, State, and Federal regulations to protect our
surrounding environments. Remember, stone, sand, and gravel are
used in nearly all building projects, public works projects,
roads, highways, bridges, dams, energy projects and airports,
as well as environmental purposes, such as treating drinking
water, stormwater, and stream restoration.
Unlike other businesses, we are limited to where natural
forces have deposited those materials that we use, so, we must
engage in careful planning to ensure that every community has
access to aggregates. And because of high transportation and
environmental costs, we normally are unable to move the vast
amount of aggregates we use over a long distance.
NSSGA members are deeply concerned that EPA's new WOTUS
rule will further complicate an already lengthy and burdensome
process to establish or access these resources. Today it takes
10 or even 20 years to develop a quarry.
While the new rule is being portrayed as a familiar
regulation, it in fact poses more questions than it answers by
making it difficult for businesses to plan and hire the
workforce necessary to supply those materials. This rule could
add millions in costs and delays for supplying new aggregates.
We want to do things the right way, but this unclear rule
makes it nearly impossible to know what that right way is. For
example, the new rule states ditches are exempt. However, the
rule also states that ditches should be included if they move
water from one wet area to another jurisdictional region.
It seems to me the purpose of a ditch is to remove water
and convey it to another location, and so, the new rule would
in fact make all ditches jurisdictional.
Further, the rule comes at a time when our industry is
working in overdrive to supply materials needed to build the
projects that were authorized by this committee under the
Infrastructure Investment and Jobs Act. The delays and
additional costs caused by multiple rules and consultations,
surveys, reports, and permits processed could lead to the
abandonment of aggregates projects. This not only impacts our
infrastructure future that hampers supply chains, it will
severely harm the ability to produce renewable energy sources.
The finalization of this rule is occurring mere months
before the Supreme Court is expected to issue a ruling that
will likely change how the definition of WOTUS is determined,
once again requiring the agencies to rewrite the rules.
We thank the bipartisan Members of this Congress who have
implored the agencies to wait for the SCOTUS ruling to be
finalized so aggregates operators are not forced to comprehend
another rule change.
In closing, we thank the members of this committee for
their time today to hear how the new WOTUS rule will impact the
aggregates industry and our Nation.
We share the goals of every member of this committee to
find ways to advance infrastructure investments and building
projects that improve our communities and deliver economic
success for every American.
Unfortunately, with my decades of experience, I feel this
rule falls short of that goal at a time when we are seeking to
maximize the outcomes of the infrastructure investments
provided by Congress.
Thank you. I look forward to answering your questions.
[Mr. Williams' prepared statement follows:]
Prepared Statement of Mark Williams, Environmental Manager, Luck
Companies, on behalf of the National Stone, Sand & Gravel Association
Aggregates are Vital to Infrastructure and the Environment
Chairman Rouzer, Ranking Member Napolitano and members of the
Subcommittee, thank you for inviting me to testify on behalf of the
National Stone, Sand & Gravel Association (NSSGA) at this hearing.
The National Stone, Sand & Gravel Association is the voice of our
nation's aggregates industry, which operates over 9,000 operations and
employs over 100,000 people in high-paying jobs to source 2.6 billion
tons of aggregates each year that are critical to the supply chain and
used to sustain our modern way of life and build our nation's
communities and infrastructure.
My name is Mark Williams, and I am the Environmental Manager at
Luck Companies, the nation's largest family-owned and operated
aggregates company, which has 21 active aggregate operations throughout
the southeast from Virginia to Georgia. I have a BS in Biology and have
been working in the environmental field for over 35 years. I am a
Virginia Certified Professional Wetland Delineator and have been active
in laboratory testing, field monitoring and permitting, as well as
performing wetland delineations. I have worked at Luck Companies for 17
years and am responsible for permit compliance, environmental training
and community engagement. I am the former chair of the NSSGA
Environmental Committee and the 2019 recipient of the NSSGA
Environmental Leader Award.
Luck Companies was started 100 years ago and remains a family-owned
and operated business. We have aggregates operations in Virginia, North
Carolina, South Carolina and Georgia. Luck Companies has a long history
of providing aggregates for the betterment of the nation, including the
DC metro area roads and bridges, the Dulles airport, homes and schools,
as well as providing materials used for stream restoration and erosion
control. Perhaps you've seen our quarry adjacent to the Manassas
Battlefield Park or you've ridden a bike on the W&OD trail that bridges
across our quarry in Leesburg. Flying into Atlanta, we operate the
quarry that is directly adjacent to the southern runway. We have won
national and local awards for conservation, community service and
safety. Luck Companies has a Memorandum of Understanding with Loudoun
County that we will mine the resource efficiently and completely, and
then the quarries will be transferred at no cost to the county to be
used for the storage of as much as 29 billion gallons of drinking water
for the citizens of Loudoun County, enhancing the growing community's
water supply.
Luck Companies supports a number of nonprofit organizations and
activities in the communities we operate in and near. For example, we
participate in events with the Alliance for the Chesapeake Bay and the
James River Association to help improve the water quality of and
appreciation for these national treasures. We are Model Level members
of the RiverStars program of the Elizabeth River Project. We fund
school and trail projects with the Nature Generation, a non-profit that
develops programs for Loudoun County Schools. These partnerships have
led to such notable collaborative projects as the installation of
sturgeon breeding reefs in the James River; creation of a wetlands park
in Norfolk Virginia; and the installation of many walking trails in
Loudoun and Spotsylvania Counties in Virginia. Another project that
we're particularly proud of is the work that was done in collaboration
with Virginia Commonwealth University's Rice Rivers Center to study and
enhance the life cycle of the endangered Atlantic Sturgeon. Luck
Companies donated over 5,000 cubic yards of randomly sized aggregates
to be placed in two locations in the James River near Richmond,
Virginia. Each location was about the size of a football field and
researchers continue to study the fish that are spawning and feeding in
this area. Although dozens of sturgeon are captured and tagged each
year, the spawning grounds of these enormous fish have not been
identified. Hatchlings and juvenile fry have been captured and
released, but there have been no eggs found in the river. Luck
Companies personnel have been involved in the production of the stone,
the delivery to the river locations, the placement and the study of the
reef. Aggregate materials are also a major component of the
installation of many structures that are necessary for environmental
protection. Riprap is used for the protection against erosion from
running water, and for the creation of living shorelines in the
Chesapeake Bay and its major tributaries. Even larger stone is used for
shoreline protection when smaller measures can be washed away by
frequent hurricane forces. This armor stone is also used to protect
piers, railroad trestles, bridges such as the Chesapeake Bay Bridge
Tunnel, and the bases of new windmills that are being installed 27
miles offshore of the Virginia coast.
Like all aggregates operations, Luck Companies is regulated by
numerous entities including local and state governments and federal
agencies such as the EPA, the Mine Safety and Health Administration,
and the U.S. Army Corps of Engineers. Before we begin operations, we
must obtain permits to construct and operate our facilities. After we
start operations, our facilities are routinely monitored to ensure we
are operating in a safe and environmentally responsible manner.
Finally, when an operation is no longer productive or needed, we
prepare a reclamation plan that will allow the former quarry operation
to benefit the community in any number of meaningful ways. We are
committed to optimizing our operations with the community in mind to
ensure that we are good neighbors.
Aggregates are the chief ingredient in asphalt pavement and
concrete and are used in nearly all residential, commercial, and
industrial building construction and in most public works projects,
including roads, highways, bridges, dams, and airports. A disruption in
the aggregates supply chain can slow or stop these important projects
and break crucial links in moving other goods across the U.S.
Aggregates are used for many environmental purposes, including treating
drinking water and in sewage treatment plants; for erosion control and
stream restoration; and in cleaning air emissions from power plants.
Biofiltration is a recent innovation where aggregates and organic
materials are blended to create a mixture that removes substantial
quantities of nitrogen and phosphorus from stormwater runoff, which is
a significant benefit to water quality. While Americans take these
essential natural materials for granted, they are imperative for
construction. Unlike other businesses, we cannot simply choose where we
operate. We are limited to where natural forces have deposited the
materials we use. There are also competing land uses that can affect
the feasibility of any project.
Through its economic, social and environmental contributions,
aggregates production helps to create sustainable communities and is
essential to the quality of life Americans enjoy. Aggregates are a
high-volume, low-cost product. Due to high product transportation
costs, proximity to market is critical; thus, most congressional
districts are home to an aggregates operation. Generally, if aggregates
are transported outside a 25-mile limit, the cost of the material can
increase substantially, in addition to creating higher air-borne
emissions. Because so much of our material is used in public projects,
any cost increases are ultimately borne by the taxpayer.
As the industry that provides the basic material for everything
from the roads on which we drive to purifying the water we drink, NSSGA
members are deeply concerned that EPA's rushed and unnecessary new
WOTUS rule will further complicate an already lengthy and burdensome
process. The aggregates industry removes naturally occurring materials
from the ground, then crushes and sorts them by size. Hazardous
chemicals are not used, produced or discharged during removal or during
the processing of aggregates. When aggregates producers are finished
using the stone, sand or gravel in an area, they pay to return the land
to other productive uses, such as residential development, nature
preserves or water supply features.
NSSGA members pride themselves on meeting or exceeding compliance
with all pertinent environmental laws and regulations and emphasize
sustainable practices. Luck Companies pays very close attention to our
resources, particularly water. Careful design of our plants ensures
that we maximize the recycling of precipitation and the reuse of all of
our water supplies. Our associates live and play near our operations,
and environmental stewardship is a key issue for all of us.
The New WOTUS Rule is Confusing & Unnecessary
We have been given multiple statements about the proposed rule by
EPA. First, it was a simple withdrawal of the 2020 Navigable Waters
Protection Act and a return to the pre-2015 regulatory framework. Now
it is intended to be a ``durable'' rule, while at the same time the
Supreme Court is considering an important case that could limit or
eliminate the Significant Nexus Test, which this new rule is based on.
EPA had no reason to rush this rule before the court decision. This is
already the fifth rule change that the regulated community and
regulators have experienced in the last 10 years, and the court
decision could well require a sixth change. This adds to the time for
all parties to understand a new rule that may only exist for a few
months, which is an unnecessary drain on corporate and government
resources.
EPA claims this rule change is needed because so many waters are
unprotected, but that is not true: states and local governments have
rules that effectively manage these resources, and the pre-2015
regulatory structure is currently in place. Additionally, states and
many municipalities regulate any potential negative impacts to
stormwater run-off and require detailed stormwater pollution prevention
plans. These plans are required for every project, both during
construction and operations. For example, I have a certification from
the Commonwealth of Virginia to assess wetlands and water issues that
are unique to the state. This is what the Congress intended with the
Clean Water Act (CWA): states and local governments are best suited to
regulate unique local environments and make land-use decisions that
balance economic and environmental benefits. The 2020 rule provided the
clarity that regulated companies like mine need to know--what is
federally jurisdictional and what is not.
This new rule poses more questions than it answers. For example,
the rule includes exemptions for ditches, pits for fill and storage
features used for water treatment. Looking closer, however, the
conditions that these exemptions must fulfill are nearly impossible to
meet in most cases, rendering them useless. For example, the rule says
that ditches are exempt, unless they convey water from one wetland area
to another that meets the jurisdictional definition. In my mind, the
only purpose of a ditch is to convey water from someplace where you
don't want it, so doesn't this make every ditch jurisdictional? Luck
Companies wants to do things the right way, but this unclear rule makes
it nearly impossible to know what the right way is. Clarity is key
because operators are at risk of large fines and even jail time under
the Clean Water Act.
Before breaking ground, operators must always evaluate whether we
are affecting jurisdictional water, which requires consultation with
the Corps and often involves hiring a consultant. The delay caused by
multiple rules and consultations, surveys, reports and individual
wetland permits processed will add significant new costs during the
permitting process which would lead to the abandonment of projects that
were once considered viable. The aggregates industry requires large
land areas to process and remove the extensive quantities of material
needed for public works projects. This rule could effectively place
many areas ``off limits'' due to the cost of new permits and/or the
mitigation required to offset losses to now regulated ``waters,'' which
may be mere depressions in the land, ditches or other features remote
from navigable waters, worsening supply chain problems.
Having a clear jurisdictional determination for each site is
critical to the aggregates industry. These decisions impact the
planning, financing, constructing and operation of aggregates
facilities. The CWA 404 ``dredge and fill'' permitting process and the
corresponding states' 401 Certification process is long and costly.
Now, we must add a new set of unclear terms that may sweep in waters
previously unregulated.
While jurisdictional determinations are good for five years, as an
industry we make business decisions to buy or lease properties to
extract aggregates for very long terms; planning 15 to 30 years in
advance is not uncommon in our industry. The companies in our industry
are very concerned that past understandings of what would be
jurisdictional will now be subject to additional review. A change in
what is considered jurisdictional can have significant impacts on our
material reserves, which will affect the life of our facilities and
delay the startup of new sites. Ultimately, this change will disrupt
the supply of aggregates to our biggest customers, which are government
agencies; thus, affecting highway programs, airports and municipal
projects.
There is already inefficiency in the current regulatory system.
However, adding vague terms and undefined concepts to an already
complicated program is not the way to fix the problem. In some cases,
this rule could have a negative effect on the environment and safety.
Ditches without maintenance can degrade and lead to increased flooding
or erosion and sediment issues.
The mitigation for such impacts is also costly, difficult or even
impossible to obtain. An expansion of the jurisdictional definition
leads to the need for additional mitigation of those impacts. This has
already led to a strain on the available mitigation resources for
projects that are necessary for existing, approved transportation
contracts. Approval of potential new mitigation banks is now estimated
at five to nine years, and approval of permits depends on the
availability of mitigation credits. Luck Companies has experienced
delays that are directly tied to the lack of available credits. The
approval of new credits is inevitably delayed, in part due to the
outdated 2008 rule. Unlike WOTUS, this rule is in need of an update
because mitigation science has expanded greatly since 2008, and an
update that allows for banks that are constructing projects that are
known to be beneficial should be approved more quickly. Instead of
ensuring that this program was running as efficiently as possible
before increasing the jurisdiction of WOTUS (and therefore the need for
more mitigation banks and projects), this administration has made it
more difficult for any projects to proceed, even those that benefit
communities and the environment.
EPA Flouted the Regulatory Flexibility Act and Disregarded Costs
EPA should have undertaken a full evaluation of the effects that
this rule will have on small businesses via a Small Business Advocacy
Review (SBRFA) Panel. The proposed rule will put small businesses at
risk of large daily fines if a permit is required and not obtained,
which could wipe out a small business that does not realize a permit is
needed for work far from ``navigable'' water. EPA bypassed the
requirements to comply with the Regulatory Flexibility Act and failed
to get input from affected small businesses before proposing a rule
(see the U.S. Small Business Administration comments on the proposed
rule, February 2, 2022).
EPA's economic analysis of this rule does not accurately show what
businesses like ours will end up paying, if this rule is finalized.
Whenever jurisdiction is expanded, as this rule clearly does,
additional features will be determined to be federally jurisdictional,
and if impacted, will require replacement, typically at an increased
ration, known as mitigation. Additional mitigation required under this
rule can cost a new individual aggregates operation or expansion an
additional million dollars or more in mitigation, and cause delays. For
our business, time is a valuable asset. Any new requirements lead to a
long learning curve for both the regulators and the regulated. Just
getting a jurisdictional determination can take months and permits can
take years; how much longer will it take to break ground with so many
vague and undefined terms in this new rule?
The proposed rule has no clear line on what is ``in'' and what is
``out,'' making it very difficult for our industry and other businesses
to plan new projects and make hiring decisions. If it is determined
that development of a site will take too long or cost too much in
permitting or mitigation, we won't move forward. This means that a
whole host of economic activities in a community will not occur, all in
the name of protecting a ditch or a farm pond.
Another NSSGA member has described the impacts of fluctuating CWA
jurisdictional rules (including the new Rule which may only be in
effect for a short time, followed quickly by another based on the
possible outcome of Sackett v EPA):
Our business is very capital-intensive and typically viable
only if in operation for many decades. Aggregate companies
invest in land for future operations based on the quality of
the reserves and the proximity to areas of expected population
growth. Therefore, changes in the regulations during the
permitting process greatly influence the ability to obtain the
necessary permits. Finalizing a new WOTUS rule prior to the
Supreme Court's decision on the Sackett case will create
unnecessary hardships for our industry and further delays our
ability to supply the much-needed aggregates for our Country's
infrastructure. For just one of our properties, we have been
trying to get a permit for over six years, and this new rule
will just add to the delay, probably by years if this Rule is
allowed to go into effect. The Corps of Engineers issued the
original Jurisdictional Determination (JD) in late 2016. The
cost of evaluating the site and the JD approval was
approximately $330,000 and took over two years to complete.
Various other environmental studies were being performed and
finalized as well during this time period. The updated JD was
obtained under the 2020 WOTUS Rule in 2021 at a cost of
$30,000. This revised JD process took approximately nine months
before a decision was issued. An additional study was also
conducted to evaluate the quality and type of each wetland on
the site to re-evaluate this site in light of the Army Corps of
Engineers policy of not accepting decisions made under the 2020
rule. This additional effort costs approximately $180,000.
Total cost to date is $540,000 in the Section 404 permit
process alone. With the uncertainty surrounding this new rule
and a possible SCOTUS decision that could require yet another
rule, we could be looking at tens of thousands of dollars of
additional cost and further delay to account for additional
study and permitting. Mitigation costs of this site will be in
the millions, but we cannot proceed given the uncertainties of
the regulatory framework. Any new proposals or changes in the
Section 404 requirements will slow down the permitting process
and require additional costs and delays.
Taken further, a significant reduction in aggregates production
could lead to a shortage of construction aggregate, causing supply
chain issues and raising the costs of concrete and hot mix asphalt
products for state and federal road building and repair and commercial
and residential construction. As material costs increase, supply
becomes limited, which will further inflate prices and reduce growth
and employment opportunities in our industry. Increases in costs of our
materials for public works would be borne by taxpayers and delay road
repairs and other crucial projects.
NSSGA appreciates this opportunity to speak on the devastating
effects of a broad expansion of CWA jurisdiction on the aggregates
industry. Thank you, Mr. Chairman, and I will be happy to respond to
any questions.
Mr. Rouzer. Thank you, sir.
Ms. Bodine.
TESTIMONY OF SUSAN PARKER BODINE, PARTNER, EARTH & WATER LAW
LLC
Ms. Bodine. Thank you, Chairman Rouzer, Ranking Member
Napolitano, and members of the subcommittee. Thank you for
inviting me to testify today on the Biden administration's new
waters of the United States rulemaking, the WOTUS rule.
I am currently a partner with the firm Earth & Water Law. I
have worked on Clean Water Act issues for my entire career,
including while serving as a staff director of this
subcommittee a long time ago and as chief counsel for the
Senate Environment and Public Works Committee. So, my goal
today is to help the subcommittee understand the scope and
impact of this new rule.
No one disputes the ecological value of wetlands or the
importance of water, whether the wetland abuts a navigable
water or is isolated, and whether the water is in a river, if
it is rainfall, snowmelt, groundwater. But just because
wetlands and water supplies are important does not mean that
Congress gave EPA and the Corps of Engineers authority to
regulate all water in the Nation under the Clean Water Act.
As a former congressional staffer, I deeply respect the
role of Congress in deciding where and when to grant Federal
authority. As described in my written statement, in my view,
the rule sets up a framework that would allow EPA and the Corps
to expand their authority beyond that which was given to them
by Congress.
In particular, the rule allows the agencies to claim
extremely broad authority over isolated ponds and wetlands that
they have not attempted to regulate since the 2001 SWANCC
decision.
The actual impacts are difficult to quantify because the
rule relies on case-by-case determinations. However, past
experience, including examples of overreach in my written
testimony, suggest that the agencies will aggressively claim
authority over both land and water.
When landowners, farmers, and municipalities later
challenge that overreach, the agencies will tell the Court that
they get deference because they are interpreting their own
regulation.
It is clear that the rule was designed to evade judicial
review because most of the detail on how it is implemented is
in the preamble and in these very lengthy, dense technical
background documents. However, the new ``significant nexus''
test is in rule language and can be challenged on its face.
The regulation says that EPA and the Corps can claim
control over any tributary, adjacent wetland, or other lake,
pond, stream, or wetland if they determine that it can
significantly affect a navigable or interstate water or
Territorial sea, including by providing, quote, ``habitat and
food resources for aquatic species located in one of those
waters.''
The preamble uses connections between migrating salmon and
the upper reaches of a tributary as an example of where this
would apply. That is very disingenuous.
If you look at the technical background document, you can
see what the Corps and EPA really mean is that they can claim
Federal control over water and wetlands because an animal can
carry insects or algae on feathers and fur or in their
intestines and travel between an isolated water and a navigable
water.
Agencies call this dispersal, and what they are really
referring to is bird droppings and animal scat. I cannot see
how the Supreme Court would ever uphold that as a test for
establishing Federal control over land and water.
It clearly falls within the admonition that Justice Breyer
recently gave in the Maui case, which was a point source case,
not a WOTUS case. But he said that the agency should not be
regulating, quote, ``in surprising, even bizarre,
circumstances, such as for pollutants carried to navigable
waters on a bird's feathers,'' close quote.
However, that is not the only example of surprising
attempts to expand Federal authority in the rule. As described
in my written statement, the rule embraces the concepts that
erosional features created by runoff can be considered
regulative tributaries; groundwater aquifers can create
connections that would support jurisdiction over isolated
waters; flows from back-to-back rainstorms can be considered
relatively permanent water; and water and wetlands can be
called adjacent if they overlay a karst geological formation.
These interpretations will have enormous economic
consequences for farmers, landowners, and municipalities. But
the Biden administration rule does not even include many of the
exclusions that were found in the 2015 WOTUS rule that included
similar expansions of Federal authority.
I would be happy to answer any questions.
[Ms. Bodine's prepared statement follows:]
Prepared Statement of Susan Parker Bodine,\1\ Partner,
Earth & Water Law LLC
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\1\ Former Senior Counsel and Subcommittee Staff Director, House
Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment; former Assistant Administrator, U.S.
Environmental Protection Agency, Office of Solid Waste and Emergency
Response (now Office of Land and Emergency Management); former Chief
Counsel, Senate Committee on Environment and Public Works; former
Assistant Administrator, U.S. Environmental Protection Agency, Office
of Enforcement and Compliance Assurance. This testimony is on behalf of
myself, not any organization.
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Chairman Rouzer, Ranking Member Napolitano, and members of the
Subcommittee, thank you for the invitation to testify today on the
Biden administration's final rule revising the definition of ``Waters
of the United States'' (WOTUS).\2\ I am currently a partner with the
firm Earth & Water Law. I have worked on Clean Water Act (CWA) issues
for my entire career, including while serving as staff director of this
subcommittee and as chief counsel for the Senate Environment and Public
Works Committee.
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\2\ 88 Fed. Reg. 3004 (Jan. 18, 2023).
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My goal today is to help the Subcommittee understand the scope and
impacts of this new rule and clarify some of the statements made by EPA
and the Corps in their preamble and background documents.
I want to make three points. First, the history of the CWA is a
history of ever-expanding federal regulation through administrative
interpretations, without any change in the statute. For this reason,
the claims by EPA and the Corps of Engineers (the agencies) that the
rule is simply a return to the ``pre-2015 regulatory regime'' \3\ is a
myth. Second, it has required the intervention of the courts to push
back on agency overreach. Third, the agencies have inaccurately
characterized the 2023 WOTUS rule as a codification of Justice Scalia's
and Justice Kennedy's opinions in Rapanos.\4\ Instead, rule is a
codification of the agencies' prior overreach and an attempt to get
judicial deference for that overreach.
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\3\ 88 Fed. Reg. at 3046.
\4\ Rapanos v. United States, 547 U.S. 715 (2006).
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I. The Ever-Expanding CWA Jurisdiction.
No one disputes the ecological value of wetlands or the importance
of water, whether the wetland abuts a navigable water or is isolated,
and whether water is in a river or is rainfall, snowmelt, or
groundwater. But just because wetlands and water supplies are important
does not mean that Congress gave EPA and the Corps authority to
regulate all water in ``the Nation'' under the CWA. As a former
Congressional staffer, I deeply respect the role of Congress in
deciding where and when to grant federal authority.
In 1972, Congress did not tell EPA and the Corps: ``do whatever you
think is necessary to protect water.'' Instead, the CWA represents a
legislative compromise that carefully prescribes the scope of federal
authority. For example, Congress was well aware of the importance of
groundwater, but deliberately excluded groundwater from the regulatory
provisions of the CWA. Congress was well aware of the ecological
importance of wetlands, but as recognized in the 1973 final report of
the congressionally chartered National Water Commission, Congress left
the regulation of isolated wetlands and waters to the states.\5\
Congress was well aware that nonpoint sources contributed to water
pollution, but Congress deliberately excluded nonpoint sources from the
regulatory authority of the Act. Congress was well aware of the
importance of water supplies, but deliberately refrained from
regulating water supply in the CWA.
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\5\ See National Water Commission (June 1973), Water Policies For
The Future: Final Report to the President and to the Congress of the
United States at 200-201, 279 (identifying regulation of intrastate,
non-navigable water as a gap in federal jurisdiction and recommending
state protections).
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But lack of a grant of authority from Congress has not stopped
federal agencies from trying to expand their control. As noted by
Justice Scalia in Rapanos, the agencies have sought to broaden federal
jurisdiction through a series of actions over the course of many
years.\6\
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\6\ Rapanos at 725 (``Following our decision in Riverside Bayview,
the Corps adopted increasingly broad interpretations of its own
regulations under the Act.'').
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In 1973, EPA issued regulations that expanded federal authority to
intrastate lakes rivers and streams based on use by interstate
travelers, use for fishing for sale in interstate commerce, and use by
industries engaging in interstate commerce.\7\ This claim of authority
was not grounded in Congress' authority over navigation and was called
into question by the Supreme Court in SWANCC.\8\
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\7\ 40 C.F.R. 125.1 (1973); 38 Fed. Reg. 13,528, 13,529 (May 22,
1973).
\8\ Solid Waste Agency of Northern Cook County v. U.S. Army Corps
of Engineers (SWANCC), 531 U.S. 159, 171-72 (2001).
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In 1977, federal agencies floated the idea that the CWA could be
used to regulate groundwater withdrawals and surface water diversions
because water quantity is related to water quality.\9\ In response,
Congress added section 101(g) to the CWA to halt that effort.\10\
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\9\ See 42 Fed. Reg. 36,787, 36,793 (July 15, 1977).
\10\ According to its sponsor, section 101(g) reaffirms
Congressional intent to use the Federal Water Pollution Control Act to
address water pollution only: ``This amendment came immediately after
the release of the Issue and Option Papers for the Water Resource
Policy Study now being conducted by the Water Resources Council. . . .
This `State's jurisdiction' amendment reaffirms that it is the policy
of Congress that this act is to be used for water quality purposes
only.'' 123 Cong. Rec. 39, 211-12 (1977) (floor statement of Senator
Wallop).
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In 1977, the Corps expanded its interpretation of the term
tributary. Even though the preamble to the Corps' 1975 interim final
regulations specified that the upstream limit of jurisdiction is the
headwaters or a point where average annual stream flow is five cubic
feet per second,\11\ the preamble to the Corps' 1977 regulations
instead specified that jurisdiction extends to the entire surface
tributary system.\12\ This expansion of the scope of regulated
tributaries was later called into question by the Supreme Court in
Rapanos.
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\11\ 40 Fed. Reg. 31,320, 31,321 (July 25, 1975).
\12\ 42 Fed. Reg. at 37,129.
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In 1985, the EPA General Counsel tried to expand EPA's
interpretation of the CWA even further by issuing a memorandum stating
that ``other waters'' (not navigable, interstate, tributary, or
adjacent) that are used or would be used by migratory birds or
endangered species are categorically regulated under the CWA.\13\ In
1986, the Corps adopted EPA's expansive interpretation and, in a
preamble, claimed that it could presume jurisdiction under the Commerce
Clause over isolated, intrastate waters:
---------------------------------------------------------------------------
\13\ Memorandum from Francis S. Blake, EPA General Counsel, to
Richard E. Samderson, Acting Assistant Administrator, EPA Office of
External Affairs (Sept. 12, 1985).
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a. which are or would be used as habitat by birds protected by
Migratory Bird Treaties; or
b. which are or would be used as habitat by other migratory birds
which cross state lines; or
c. which are or would be used as habitat for endangered species;
or
d. used to irrigate crops sold in interstate commerce.\14\
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\14\ 51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986).
Under this theory, the Corps could claim jurisdiction over any
isolated wetland, pond, or puddle based on its potential use by a
migratory bird. As such, it became known as the ``Migratory Bird Rule''
or the ``Glancing Goose'' test.\15\
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\15\ See January 16, 2001, Wall Street Journal, available at http:/
/www.wsj.com/articles/SB979603030985179200
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In 1986, the Corps removed an exclusion for ditches from its
regulations.\16\
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\16\ 51 Fed. Reg. at 41,217.
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In 2000, in the preamble of its Nationwide Permits, the Corps
specified that federal jurisdiction extends to ephemeral flows, if the
Corps believes they can see an ordinary high-water mark.\17\ This
further expansion of the definition of tributary based on an ordinary
high-water mark also is questioned by the Rapanos case.
---------------------------------------------------------------------------
\17\ 65 Fed. Reg. 12,818, 12,823 (Mar. 9, 2000).
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In 2008, the Corps issued guidance that allows the Corps to claim
jurisdiction over dry land in the arid west based on a 5-to-10-year
flood event.\18\ Use of the floodplain in lieu of an ordinary high-
water mark to expand the definition of a tributary in the arid west is
embraced in the 2023 WOTUS Rule.\19\
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\18\ A Field Guide to the Identification of the Ordinary High-Water
Mark (OHWM) in the Arid West Region of the Western United States A
Delineation Manual, Robert W. Lichvar and Shawn M. McColley August
2008, at 31-32 (recommending use of a 5-to-10-year precipitation event
to establish federal jurisdiction over the entire floodplain).
\19\ 88 Fed. Reg. at 3083; Technical Support Document for the Final
``Revised Definition of the Waters of the United States'' Rule (Dec.
2022), at 165.
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II. Judicial Push-Back on Claims of Expansive Federal Jurisdiction.
In the last twenty years, the Supreme Court has pushed back four
times on broad authority claimed by EPA and the Corps under the CWA.
In the 2001 SWANCC decision, the Supreme Court rejected the
``Migratory Bird Rule.'' The Court found no evidence that Congress
acquiesced to ``the Corps' claim of jurisdiction over nonnavigable,
isolated, intrastate waters,'' and declined to hold ``that isolated
ponds, some only seasonal, wholly located within two Illinois counties,
fall under Sec. 404(a)'s definition of `navigable waters' because they
serve as habitat for migratory birds.'' \20\ Importantly, the Court
held that CWA jurisdiction was an exercise of Congress' authority over
navigation--hence the regulatory reach of the Act protects waters based
on their use as channels of commerce, not use as habitat. That is why
this Committee has jurisdiction over the CWA, not the Committee on
Natural Resources.
---------------------------------------------------------------------------
\20\ Solid Waste Agency of Northern Cook County v. U.S. Army Corps
of Engineers (SWANCC), 531 U.S. 159, 171-72 (2001).
---------------------------------------------------------------------------
Concern that the agencies were exceeding their statutory authority
reached the Supreme Court again in 2006. In the Rapanos case both the
plurality opinion, authored by Justice Scalia, and Justice Kennedy's
concurring opinion, held that the Corps did not demonstrate that it
could regulate wetlands adjacent to a ditch in Michigan. Justice
Scalia's opinion held that CWA jurisdiction extended to ``relatively
permanent'' waters and wetlands that abut those waters.\21\ Justice
Kennedy's opinion held that ``to constitute `navigable waters' under
the Act, a water or wetland must possess a `significant nexus' to
waters that are or were navigable in fact or that could reasonably be
so made.'' \22\ Importantly, neither Justice Scalia nor Justice Kennedy
agreed that finding an ordinary high water mark was sufficient to
establish federal jurisdiction.\23\
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\21\ Rapanos at 739, 742.
\22\ Id. at 759.
\23\ 547 U.S. at 725 (criticizing the Corps' use of an ordinary
high water mark to establish jurisdiction noting that ``[t]his
interpretation extended `the waters of the United States' to virtually
any land feature over which rainwater or drainage passes and leaves a
visible mark--even if only `the presence of litter and debris' '')
(plurality opinion); 547 U.S. at 781 (criticizing use of an ordinary
high water mark to delineate tributaries because ``breadth of this
standard--which seems to leave wide room for regulation of drains,
ditches, and streams remote from any navigable-in-fact water and
carrying only minor water volumes toward it--precludes its adoption as
the determinative measure of whether adjacent wetlands are likely to
play an important role in the integrity of an aquatic system comprising
navigable waters as traditionally understood (J. Kennedy, concurring).
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In 2012, the Supreme Court reviewed EPA's claim that it could order
a couple to stop building a house and that the CWA did not allow the
couple to challenge that order until EPA brought an enforcement action.
In the Sackett case, a unanimous Supreme Court disagreed with EPA and
held that the administrative order requiring a couple to stop building
a house was juridically reviewable.\24\ During the oral argument the
Justices were appalled by the admission of the Deputy Solicitor General
that EPA's claim of jurisdiction was only ``initial,'' EPA believed it
could issue an order without doing a sufficient investigation, and if
the homeowner wanted to appeal a jurisdictional determination they had
to first submit themselves to federal jurisdiction and make a permit
application.\25\
---------------------------------------------------------------------------
\24\ Sackett v. EPA, 566 U.S. 120 (2012).
\25\ Transcript of oral argument, Sackett v. United States, Sup.
Ct. No. 10-1062, at 52-53, 58.
---------------------------------------------------------------------------
In the 2016 Hawkes case the Supreme Court held that a landowner
could get judicial review of a Corps jurisdictional determination that
a peat farm 95 miles from the nearest navigable river was
regulated.\26\ Tellingly, in his concurring opinion in Hawkes, Justice
Kennedy, the author of the ``significant nexus'' test, called the reach
of the Act ``ominous'' and said ``[t]he Act . . . continues to raise
troubling questions the Government's power to cast doubt on the full
use and enjoyment of private property throughout the Nation.'' \27\ On
January 24, 2017, following the Court's remand, the District Court for
the District of Minnesota found that the record relied on by the Corps
to assert jurisdiction in Hawkes continued to fail to demonstrate that
a peat farm located more than 90 miles from the nearest navigable water
was a water of the United States. In the record for that case, the
Corps' relied on the same type of connections that would establish
jurisdiction under the 2023 WOTUS Rule (the functions of wetlands in
providing floodwater storage and in retaining nutrients and sediments,
functions of streams and rivers and transport of nutrients and
chemicals downstream). The court said that the Corps' reliance on these
connections, in the absence of any data on the frequency, volume, and
type of actual (not hypothetical) flow from the peat farm to the river,
to claim a ``significant'' nexus was ``arbitrary and capricious.'' \28\
---------------------------------------------------------------------------
\26\ U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. 590, 598
(2016).
\27\ 578 U.S. at 602.
\28\ Hawkes Co., Inc., et al. v. U.S. Army Corps of Engineers, D.
Minn., Civil No. 13-107 Memorandum Opinion and Order, January 24, 2017.
The Corps finally gave up trying to regulate the Hawkes peat farm.
---------------------------------------------------------------------------
Finally, even though it did not involve the definition of WOTUS, in
the recent Maui case, Justice Breyer rejected the idea that the CWA
would regulate ``in surprising, even bizarre, circumstances, such as
for pollutants carried to navigable waters on a bird's feathers.'' \29\
Yet, as discussed below, the 2023 Rule's ``significant nexus'' test
would do just that.
---------------------------------------------------------------------------
\29\ Cty. Of Maui, Hawaii v. Hawai'i Wildlife Fund, 140 S. Ct.
1462, 1471 (2020).
---------------------------------------------------------------------------
III. The 2023 WOTUS Rule and Examples of Overreach That Would be
Condoned Under the Rule.
In the 2023 WOTUS Rule (like the 2015 rule) the agencies are trying
to codify the authority to expand their jurisdiction with case-by-case
determinations by field staff and get judicial deference for those
actions. They justify this action by claiming that the rule is
implementing both Justice Scalia's and Justice Kennedy's opinions in
Rapanos.
The final rule is superficially familiar, regulating traditional
navigable waters, territorial seas, interstate waters (including
interstate wetlands),\30\ impoundments, tributaries, and adjacent
wetlands. However, for the first time since the 2001 SWANCC decision,
under the 2023 WOTUS rule the agencies also will claim jurisdiction
over ``other waters,'' i.e., all other intrastate lakes, ponds,
streams, and wetlands (1) that are relatively permanent and that have a
relatively permanent connection to navigable or interstate waters or
territorial seas or relatively permanent tributaries, or (2) that the
agencies believe significantly affect the chemical, physical, or
biological integrity of navigable or interstate waters or territorial
seas.
---------------------------------------------------------------------------
\30\ Although the statute does not include interstate waters in its
definition of navigable waters, the agencies claim authority over all
interstate waters and wetlands with no showing of any connection to
navigable waters or territorial seas, citing their general Commerce
Clause authority, even though the SWANCC case said jurisdiction had to
be based on Congress' authority over navigation. 88 Fed. Reg. at 3073.
---------------------------------------------------------------------------
The rule language and, in particular, the guidance provided in the
preamble and background documents, encourage the agencies to indulge in
the same overreach that has been a concern of farmers, landowners,
municipalities, and Congress for many years. The agencies do that by
codifying the concept that CWA jurisdiction covers all waters with a
``significant nexus'' to a navigable water, interstate water, or a
territorial sea. This argument is loosely based on Justice Kennedy's
Rapanos opinion but would codify the practices that concerned Justice
Kennedy in both the Rapanos and the Hawkes cases. The agencies also
purport to codify the ``relatively permanent'' waters standard from
Justice Scalia's plurality opinion in Rapanos. However, as described
below, the 2023 WOTUS rule stretches that standard beyond recognition.
The agencies attempt to assure Congress and the public that
regulatory exemptions will protect farmers and landowners. However,
their own history of applying those exemptions demonstrates that this
assertion is not true.
A. ``Relatively Permanent'' Test.
Under the final rule a tributary is federally regulated if it is a
``relatively permanent, standing or continuously flowing body of
water.'' \31\ Wetlands that are adjacent to ``relatively permanent''
waters and with a ``continuous surface connection'' to those waters
also are federally regulated.\32\ Finally all other intrastate lakes,
ponds, streams, and wetlands are federally regulated if they are
``relatively permanent'' and have a ``continuous surface connection''
to a relatively permanent water.\33\ The agencies decide on a case-by-
case basis whether a water body is relatively permanent and whether the
connection is continuous.
---------------------------------------------------------------------------
\31\ 33 C.F.R. 328(a)(3)(i).
\32\ 33 C.F.R. 328(a)(4)(ii).
\33\ 33 C.F.R. 328(a)(5)(i).
---------------------------------------------------------------------------
Perhaps concerned that in its forthcoming Sackett decision the
Supreme Court will disallow use of the ``significant nexus'' standard
to find federal jurisdiction, EPA and the Corps have expanded the
``relatively permanent'' standard.
Justice Scalia's plurality opinion in Rapanos held that the CWA
authorized federal control over ``only those relatively permanent,
standing or continuously flowing bodies of water `forming geographic
features' that are described in ordinary parlance as `streams[,] . . .
oceans, rivers, [and] lakes.' '' \34\ Justice Scalia emphasized that
relatively permanent waters do not include tributaries ``whose flow is
`[c]oming and going at intervals . . . [b]roken, fitful' or `existing
only, or no longer than, a day . . .'' \35\ Accordingly, the 2008
Rapanos Guidance (which is now revoked by the 2023 WOTUS Rule)
interpreted relatively permanent to mean only those non-navigable
tributaries that flowed continuously or that had continuous flow at
least seasonally (typically three months).\36\ Further, in 2008 EPA and
the Corps determined that ``relatively permanent'' waters do not
include ephemeral tributaries which flow only in response to
precipitation and intermittent streams which do not typically flow
year-round or have continuous flow at least seasonally.\37\
---------------------------------------------------------------------------
\34\ Rapanos, at 739.
\35\ Rapanos, at 733.
\36\ U.S. EPA & U.S. Army Corps of Engineers, Clean Water Act
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v.
United States & Carabell v. United States (Dec. 2, 2008), at 1.
\37\ Rapanos Guidance, at 7.
---------------------------------------------------------------------------
In contrast, in the 2023 WOTUS Rule, water from ``back-to-back
precipitation events'' can be considered relatively permanent flow.\38\
Under that interpretation, the agencies could argue that almost any
ditch or stormwater control feature in parts of California is a
relatively permanent WOTUS as a result of repeated storms.\39\
---------------------------------------------------------------------------
\38\ 88 Fed. Reg. at 3086.
\39\ See Appendix A, Exhibit 1.
---------------------------------------------------------------------------
Under the 2023 WOTUS Rule, the agencies don't even need to observe
water to identify a ``relatively permanent'' tributary, wetland, pond,
or puddle. Biological indicators, including the presence of aquatic
insects or plant, can be used to determine that a tributary is
relatively permanent.\40\ An ordinary high-water mark also can be used
to determine that a tributary is relatively permanent even though, as
noted above, both Justice Scalia and Justice Kennedy agreed that an
ordinary high-water mark was not sufficient to establish CWA
jurisdiction.\41\
---------------------------------------------------------------------------
\40\ 88 Fed. Reg. at 3087-88.
\41\ Id.
---------------------------------------------------------------------------
Further, when regulating a wetland that is adjacent to a relatively
permanent water, the regulatory text does not require a relatively
permanent hydrological connection. Only the geographic or artificial
feature that forms the connection needs to be continuous.\42\
---------------------------------------------------------------------------
\42\ Id. at 3092, 3117. See also, id. at 3096 (``A continuous
surface connection is not the same as a continuous surface water
connection, by its terms and in effect.'')
---------------------------------------------------------------------------
B. ``Significant Nexus'' Test.
Under the final rule the agencies can regulate a tributary that
lacks ``relatively permanent'' flow if, on a case-by-case basis, EPA or
the Corps decide that it ``significantly affects the chemical physical,
or biological integrity'' of a navigable or interstate water or a
territorial sea.\43\ Adjacent wetlands also can be regulated based on
such effects.\44\ Finally all other intrastate lakes, ponds, streams,
and wetlands also are federally regulated if the Corps or EPA determine
that they ``significantly affect the chemical physical, or biological
integrity'' of a navigable or interstate water or a territorial
sea.\45\
---------------------------------------------------------------------------
\43\ 33 C.F.R. 328(a)(3)(ii).
\44\ 33 C.F.R. 328(a)(4)(iii).
\45\ 33 C.F.R. 328(a)(5)(ii).
---------------------------------------------------------------------------
Jurisdiction based on a ``significant nexus'' to navigable water is
not a long-standing agency interpretation of the Act. In 2009, the
agencies took the position that the Rapanos case severely limited their
jurisdiction and encouraged Congress to act.\46\ Some members of
Congress introduced legislation to remove the term ``navigable'' from
the CWA.\47\ After that legislation failed to advance over the course
of two Congresses, in 2011 the agencies changed their strategy and
developed a draft guidance to reinterpret both the CWA and Justice
Kennedy's opinion.\48\
---------------------------------------------------------------------------
\46\ See May 20, 2009, letter from CEQ Chairman Nancy Sutley, EPA
Administrator Jackson, Acting Assistant Secretary of the Army Rock
Salt, Agriculture Secretary Tom Vilsack, and Interior Secretary Ken
Salazar to Senator Boxer.
\47\ The Clean Water Restoration Act (HR 2421 and S. 1870 110th
Congress; S. 787 111th Congress).
\48\ EPA and Army Corps of Engineers Guidance Regarding
Identification of Waters Protected by the Clean Water Act,'' 76 Fed.
Reg. 24,479 (May 2, 2011).
---------------------------------------------------------------------------
The logic for the new interpretation goes as follows: federal
jurisdiction over water is as broad as the objective of the CWA set
forth in section 101(a) (stating that the objective of the Act is ``to
restore and maintain the chemical, physical and biological integrity of
the Nation's waters''). Continuing the logic: a ``significant nexus''
to navigable water can be formed by any chemical, physical, or
biological connection.
Far from being grounded in Justice Kennedy's Rapanos concurrence,
this interpretation of the CWA is in fact based on Justice Steven's
dissenting opinion and an amicus brief he cited in support.\49\
---------------------------------------------------------------------------
\49\ SWANCC, 531 U.S. at 176 n. 2 (Justice Stevens, dissenting);
Brief for Dr. Gene Likens et al. as Amici Curiae in SWANCC. This brief
was included in the docket for the 2015 WOTUS rule, document no. EPA-
HQ-OW-2011-0880-8591.
---------------------------------------------------------------------------
This interpretation is deeply flawed. First, it turns an objective
of a law into an operative jurisdictional statement, despite
admonitions against doing so by the Supreme Court.\50\ Second, it
violates a standard canon of statutory interpretation by reading the
terms ``chemical, physical, and biological integrity'' in section
101(a) of the Act to refer to the scope of waters to be protected even
though in the seven other places where that phrase is used in the Act,
it refers to the level of protection for the waters that are already
subject to the Act.\51\ Even Justice Kennedy considered such an
interpretation of his ``significant nexus'' test to be an
overreach.\52\ Finally, the agencies' legal interpretation takes a term
used once in the CWA, ``Nation's waters,'' and assumes that this term
is equivalent to the term ``waters of the United States.'' That
assumption also violates principles of statutory interpretation.
Congress is assumed to mean different things when it uses different
terms.\53\ The ``Nation's waters'' addressed by the CWA through
nonregulatory programs includes waters that are not WOTUS. In fact, the
policies and goals listed in section 101(a) include ``the national
policy that areawide treatment management planning processes be
developed and implemented to assure adequate control of sources of
pollutants in each State,'' a provision of the Act that expressly
addresses waters that are not regulated at the federal level.\54\
---------------------------------------------------------------------------
\50\ The Supreme Court has stated, ``it frustrates rather than
effectuates legislative intent simplistically to assume that whatever
furthers the statute's primary objective must be the law.'' Rodriguez
v. United States, 480 U.S. 522, 526 (1987). The Rapanos plurality made
the same point: ``This is the familiar tactic of substituting the
purpose of the statute for its text, freeing the Court to write a
different statute that achieves the same purpose. . . . It would have
been an easy matter for Congress to give the Corps jurisdiction over
all wetlands (or, for that matter, all dry lands) that ``significantly
affect the chemical, physical, and biological integrity of'' waters of
the United States. It did not do that, but instead explicitly limited
jurisdiction to ``waters of the United States.'' Rapanos, 547 U.S. at
755-56 (2006) (Scalia, J., plurality).
\51\ See 33 U.S.C. Sec. 1362(11), Sec. 1362(15), Sec. 1362(19),
Sec. 1314(a)(1)(B), Sec. 1314(b)(1)(A), Sec. 1254(b), and Sec.
1255(d)(3). A term appearing in several places in a statutory text is
generally read the same way each time it appears.'' Ratzlaf v. United
States, 510 U.S. 135, 143 (1994); Antonin Scalia and Bryan Garner,
Reading Law: The Interpretation of Legal Texts (2012), at 170
(discussing the ``Presumption of Consistent Usage'' canon) (hereinafter
``Reading Law'').
\52\ U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. at 602
(concurring opinion by Justice Kennedy ``point[ing] out that, based on
the Government's representations in this case, the reach and systemic
consequences of the Clean Water Act remain a cause for concern'' and
referring to the ``ominous reach'' of the Act).
\53\ Reading Law, at 170 (presumption of consistent usage also
means that a material variation in words suggests a variation in
meaning).
\54\ CWA section 101(a)(5), referring to section 208 of the Act,
which encourages the development of plans to address ``substantial
water quality control problems,'' including identifying pollution
problems associated with nonpoint sources, saltwater intrusion, and
pollution of groundwater, all of which fall outside the regulatory
reach of the Act. See CWA section 208(a)(1) and (b)(2)(F), (I), and
(K).
---------------------------------------------------------------------------
To support expanded jurisdiction under the 2023 WOTUS Rule, the
agencies now claim that an isolated water can affect the ``biological
integrity'' of a navigable water.\55\ The preamble uses anadromous
fish, like salmon, to provide an example of biological connections.\56\
To understand what the agencies really mean, one has to read the
Technical Support Document. That document reveals that the agencies
believe they can claim jurisdiction over an isolated water if they
determine that birds can fly from the isolated water to a navigable
water and leave bird droppings that contain seeds of aquatic plants or
they determine that beavers that live in the isolated water can move
from the pond to a tributary of a navigable water and leave scat that
includes larva of aquatic insects.\57\ The agencies call this
``dispersal.''
---------------------------------------------------------------------------
\55\ 33 C.F.R. 328.3(c)(6).
\56\ 88 Fed. Reg. at 3021.
\57\ See Technical Support Document, at 209 and studies cited
including Figuerola, J., and A.J. Green. 2002. ``Dispersal of Aquatic
Organisms by Waterbirds: A Review of Past Research and Priorities for
Future Studies.'' Freshwater Biology 47:483-494; Figuerola, J., et al.
2005. ``Invertebrate Eggs Can Fly: Evidence of Waterfowl-Mediated Gene
Flow in Aquatic Invertebrates.'' American Naturalist 165:274-280;
dispersal capacity of a broad spectrum of aquatic invertebrates via
waterbirds,'' Aquatic Sciences 69:568-574 (2007); and Roscher, J. P.,
``Alga dispersal by muskrat intestinal contents,'' Transactions of the
American Microscopical Society 86:497-498 (1967).
---------------------------------------------------------------------------
The Technical Support Document is replete with examples of
``dispersal studies'' that purportedly support jurisdiction over
isolated waters. These include studies of mammals ``that can disperse
overland,'' insects that ``hitchhike on birds and mammals from non-
floodplain wetlands to the stream network,'' insects ``that are flight-
capable,'' and ``frogs, toads, and newts'' that ``move between streams
or rivers and non-floodplain ``other waters.'' \58\ The Technical
Support Document even cites papers to support the idea that the
agencies can assert federal jurisdiction over land and water based on
the hypothesis that birds transport fairy shrimp to vernal pools.\59\
In all, the Technical Support Document uses the word ``dispersal'' 140
times.
---------------------------------------------------------------------------
\58\ Technical Support Document, at 212.
\59\ Technical Support Document, at 64, 548.
---------------------------------------------------------------------------
In the preamble, the agencies repeatedly state that they will not
base federal jurisdiction over isolated waters on use of water as
habitat by migratory birds. However, this claim is disingenuous. Rather
than relying on use of a water body by a bird, the Technical Support
Document makes it clear that they will assert jurisdiction based on
dispersal of insects and plants by a bird.
Jurisdiction based on dispersal of biota is likely to become the
new ``Glancing Goose'' test. The Technical Support Document states
that: ``Biological connections are likely to occur between most non-
floodplain wetlands and downstream waters through either direct or
stepping stone movement of amphibians, invertebrates, reptiles,
mammals, and seeds of aquatic plants, including colonization by
invasive species.'' \60\ The Technical Support Document further states
that ``[e]mergent and aquatic vegetation found in non-floodplain `other
waters' disperse downstream by water, wind, and hitchhiking on (i.e.,
adhering to) migratory animals'' (emphasis added).\61\
---------------------------------------------------------------------------
\60\ Technical Support Document, at 22.
\61\ Technical Support Document, at 209.
---------------------------------------------------------------------------
The 2023 WOTUS Rule preamble claims its ``significant nexus''
standard is based on protection of water quality.\62\ However, in the
2023 WOTUS Rule for the first time ever the agencies claim that they
consider the presence of animals to be water quality parameters.\63\
---------------------------------------------------------------------------
\62\ See 88 Fed. Reg. at 3034 (``The standard is consistent with
the plain language of the Act's objective because it is based upon
effects on the water quality of paragraph (a)(1) waters . . .'').
\63\ See Section 12 of the Response to Comments Document, at 46
(describing storage of water and providing habitat for aquatic species
as functions that improve water quality).
---------------------------------------------------------------------------
Contrary to this novel interpretation of the CWA, there is no basis
in the text or history of the CWA to support the idea that federal
jurisdiction is based on the movement of animals. Water quality is the
presence or absence of pollution that impacts the ability of a body of
water to meet its designated uses. As stated in section 101(a)(1),
water quality ``provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in and on the
water.'' It is not the presence or absence of an animal or recreation
itself. Despite this fact, the 2023 WOTUS Rule allows the federal
government to assert jurisdiction over water based on functions such as
``provision of habitat and food resources for aquatic species located
in [navigable or interstate waters or territorial seas].'' \64\
---------------------------------------------------------------------------
\64\ 33 C.F.R. 328.3(c)(6)(i)(E).
---------------------------------------------------------------------------
To support expanded jurisdiction under the 2023 WOTUS Rule, the
agencies also claim that an isolated water can affect the integrity of
a navigable water by either preventing or contributing water flows.\65\
These flows include overland sheet flow spilling from a wetland \66\
and contributions to groundwater that later recharges to surface
water.\67\ They make this claim even though claiming jurisdiction based
on water supply functions contravenes section 101(g) of the CWA.
Further, in 2015 the Corps' Assistant Secretary of the Army (Civil
Works), Jo-Ellen Darcy, responded to written congressional questions
stating that: ``The Corps has never interpreted groundwater to be
jurisdictional water or a hydrologic connection because the Clean Water
Act (CWA) does not provide such authority.'' \68\ Despite the admission
that groundwater connections are not a basis for jurisdiction the
Technical Support Document for the 2023 WOTUS Rule does just that,
finding that ``[n]on-floodplain wetlands and open waters are frequently
connected to their local and regional aquifers, and hence to the stream
networks, through groundwater flows.'' \69\
---------------------------------------------------------------------------
\65\ 33 C.F.R. 328.3(c)(6)(i)(A) and (C).
\66\ 88 Fed. Reg. at 3094 (discussing water spilling from
wetlands).
\67\ 88 Fed. Reg. at 3033, 3120 (discussing groundwater recharge
from wetlands).
\68\ See Response to Follow-Up Questions for Written Submission to
Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) (June 2,
2015) (emphasis added) (attached).
\69\ TSD, at 65 (citations omitted).
---------------------------------------------------------------------------
The agencies claim that the rule relies on their ``extensive
experience'' in making jurisdictional determinations.\70\ However,
those claims were thoroughly rebutted by internal Corps of Engineers
memoranda repudiating the suggestion that the Corps' experience
supports the significant nexus framework of the 2015 Rule, which is
repeated in the 2023 WOTUS Rule.\71\
---------------------------------------------------------------------------
\70\ The preamble to the final rule makes this claim at least eight
times.
\71\ See April 24, 2015, Memorandum from Lance Wood to MG Peabody
(legal analysis); April 24, 2015, memorandum from Jennifer Moyer to MG
Peabody (technical analysis), introduced into the record of S. Hrg.
114-203, ``Oversight of the Army Corps of Engineers' Participation in
the Development of the New Regulatory Definition of ``Waters of the
United States,'' before the Senate Environment and Public Works
Committee, Sept. 30, 2015, and available at https://www.congress.gov/
114/chrg/CHRG-114shrg99458/CHRG-114shrg99458.pdf
---------------------------------------------------------------------------
As the agencies admit, they have no experience asserting
jurisdiction over intrastate, nonnavigable waters based on
``significant nexus.'' \72\
---------------------------------------------------------------------------
\72\ 88 Fed. Reg. at 3102-03 (admitting that the agencies have not
asserted jurisdiction over isolated waters since the SWANCC decision in
2001).
---------------------------------------------------------------------------
The Technical Support Document notes that most connections with
navigable waters are through biological or groundwater connections.''
\73\ Dispersal of biota and groundwater are likely to become the
primary ways EPA and the Corps claim control over private property,
even though nothing in the CWA or its legislative history supports this
outcome.
---------------------------------------------------------------------------
\73\ In the studies they reviewed, the agencies found that
biological connections are the most common type of connection for all
stream types (including ephemeral channels) (Technical Support
Document, at 51) and floodplain wetlands and open waters (Technical
Support Document, at 52). For isolated waters, the Technical Support
Document, found groundwater was the most common basis for finding a
connection (Technical Support Document, at 65).
---------------------------------------------------------------------------
C. Expansion of the Concept of ``Tributary''
The 2023 WOTUS Rule does not define the term ``tributary.''
Tributaries of navigable or interstate waters or territorial seas or
impoundments are regulated.\74\ The preamble states that a tributary is
a water body that flows directly or indirectly to one of those
waters.\75\ On its face, this definition appears to be uncontroversial.
However, the preamble makes it clear that a feature on the land can be
considered a tributary as long as EPA or the Corps decide they can see
an ordinary high-water mark.\76\ For example, in 2014 comments on the
proposal that became the 2015 WOTUS Rule the State of Tennessee noted
that the Corps claimed jurisdiction over a Tennessee farmer's field by
claiming erosion from an ephemeral flow was a regulated tributary.\77\
---------------------------------------------------------------------------
\74\ 33 CFR 328.3(a)(3).
\75\ 88 Fed. Reg. at 3083.
\76\ 88 Fed. Reg. at 3116.
\77\ See the photo in the Appendix, Exhibit 2, from the Comments of
the State of Tennessee, Department of Environment and Conservation on
the 2014 proposed WOTUS Rule, document no. EPA-HQ-OW-2011-0880-17074,
at 19, available at https://www.regulations.gov/comment/EPA-HQ-OW-2011-
0880-17074
---------------------------------------------------------------------------
In fact, the 2023 WOTUS Rule goes even further and states that a
surface flowpath is not needed.\78\ Water also can be considered a
tributary even if it no longer is an identifiable hydrographic feature,
such as a stream that disappears underground, including through
groundwater aquifers in karst geology found below about 20 percent of
the United States.\79\
---------------------------------------------------------------------------
\78\ 88 Fed. Reg. at 3084.
\79\ Id. at 3083.
---------------------------------------------------------------------------
The preamble also gives EPA and the Corps the discretion to decide
that a buried stream is a tributary.\80\ This language could convert a
city sewer into a regulated water of the United States.\81\
---------------------------------------------------------------------------
\80\ 88 Fed. Reg. at 3083.
\81\ See Hidden Washington: Tiber Creek (describing how Tiber Creek
formerly found in Northwest Washington was converted in the 19th
century to an underground sewer that discharges to the Anacostia
River), available at https://parkviewdc.com/2011/09/08/hidden-
washington-tiber-creek/ See also, Senator James M. Inhofe, ``Your
Sewers and Streets Could be Waters of the United States,'' Municipal
Water Leader, Vol. 1, Issue 3, October 2015, at 24, available at
https://municipalwaterleader.com/vol-1-iss-3/
---------------------------------------------------------------------------
Under the rule, the agencies can use aerial photographs, light
detection and ranging (LIDAR) date, and even soil surveys to identify a
tributary and determine that it is ``relatively permanent.'' \82\ This
can put landowners in an untenable situation.
---------------------------------------------------------------------------
\82\ 88 Fed. Reg. at 3087 (tributaries generally), 3114 (discussing
how to determine a ditch is not excluded).
---------------------------------------------------------------------------
For example, in 2014, a farmer in Indiana cleared trees from his
property to expand his farming operation. The Corps claimed that this
activity destroyed a regulated tributary of a ``water of the United
States.'' The Corps claimed jurisdiction based on a soil survey
(although the Corps did not claim wetlands were present), Google Earth
aerial photographs taken before the trees were cleared, and speculation
that a drainage existed beneath the tree canopy. The landowner
submitted an affidavit from the person who performed the clearing,
affirming that no stream existed on the parcel cleared in 2014 and any
marks on the ground were log skidder tracks from logging that took
place in the early 2000s. Although the nearest traditional navigable
water was 117 miles away and the nearest relatively permanent water
feature (Mud Ditch) was a mile and a half away, the Corps ordered the
farmer to cease and desist his tree clearing.\83\ Under the 2023 WOTUS
Rule, the same kind of information can be used to claim that a farm has
a ``relatively permanent'' tributary.
---------------------------------------------------------------------------
\83\ Testimony submitted by Martin Farms, Hearing on ``Erosion of
Exemptions and Expansion of Federal Control--Implementation of the
Definition of Waters of the United States,'' May 24, 2016, before the
Senate Committee on Environment and Public Works Subcommittee on
Fisheries, Water, and Wildlife, available at https://
www.epw.senate.gov/public/index.cfm/hearings?ID=3F9479F7-CA54-44B6-
A202-631D86380A66 See Appendix A, Exhibit 4 for photo.
---------------------------------------------------------------------------
D. Expansion of the Concept of ``Adjacency.''
Under the 2023 WOTUS rule, adjacency is determined on a case-by-
case basis, with no outer boundary. The preamble points out that even
if a wetland is more than a few hundred feet from a navigable or
interstate water or a territorial sea or an impoundment, or a tributary
of any of these waters, EPA and the Corps can still claim a wetland is
adjacent based on a surface or shallow subsurface connections, pipes,
ditches, or--like tributaries--karst geology.\84\
---------------------------------------------------------------------------
\84\ 88 Fed. Reg. at 3089.
---------------------------------------------------------------------------
The Corps has claimed a wetland was adjacent due to the presence of
damp soil 12 inches below the surface.\85\
---------------------------------------------------------------------------
\85\ See Testimony submitted by Valerie Wilkinson, Hearing on
``Erosion of Exemptions and Expansion of Federal Control--
Implementation of the Definition of Waters of the United States,'' May
20, 2016, available at https://www.epw.senate.gov/public/index.cfm/
hearings?ID=3F9479F7-CA54-44B6-A202-631D86380A66
---------------------------------------------------------------------------
The Corps has claimed wetlands are adjacent based on ruts formed by
a log skidder.\86\
---------------------------------------------------------------------------
\86\ Testimony of Gary W. Perkins, Hearing on ``Inconsistent
Regulation of Wetlands and Other Waters,'' Before the Committee on
Transportation and Infrastructure, Water Resources and Environment
Subcommittee, Mar. 30, 2004, 108th Congress (GPO Serial No. 108-58).
---------------------------------------------------------------------------
The Corps has claimed that a puddle is an adjacent wetland based on
tire ruts. In 2007, the Corps required a landowner to obtain a permit
for tire ruts along a dirt road even though the ruts, which collected
rainwater, lacked both hydric soils and wetlands vegetation, and
therefore did not meet the definition of a wetland. To justify
regulating a tire rut, the Corps surmised that use of the road
prevented the growth of vegetation. In 2014, when the landowner was
seeking approval of phase II of its project, the Corps again asserted
jurisdiction over the road. Depressions made by cars collected standing
water following a heavy rain. The Corps again called these
wetlands.\87\
---------------------------------------------------------------------------
\87\ Response to Questions for the Record submitted by Don Parrish,
Case Study 1, Hearing on ``Erosion of Exemptions and Expansion of
Federal Control--Implementation of the Definition of Waters of the
United States,'' May 20, 2016, available at https://www.epw.senate.gov/
public/index.cfm/hearings?ID=3F9479F7-CA54-44B6-A202-631D86380A66 See
Appendix A, Exhibit 6.
---------------------------------------------------------------------------
The agencies plan to use aerial photos to identify wetlands that it
may consider adjacent.\88\ That can lead to abuses as well. In 2015,
the Corps claimed that lichen covered rock outcroppings were wetlands
based on a review of an aerial photograph.\89\
---------------------------------------------------------------------------
\88\ 88 Fed. Reg. at 3094.
\89\ Response to Questions for the Record submitted by Don Parrish,
Case Study 9, Hearing on ``Erosion of Exemptions and Expansion of
Federal Control--Implementation of the Definition of Waters of the
United States,'' May 20, 2016, available at https://www.epw.senate.gov/
public/index.cfm/hearings?ID=3F9479F7-CA54-44B6-A202-631D86380A66
---------------------------------------------------------------------------
Finally, EPA and the Corps will consider a wetland to be adjacent
even if there is no surface or subsurface connection to a
jurisdictional water based by inferring that the wetland is close
enough to have an impact on an aquatic ecosystem.\90\
---------------------------------------------------------------------------
\90\ 88 Fed. Reg. at 3089.
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E. Erosion of Exemptions.
In the preamble of the 2023 WOTUS Rule, the agencies repeatedly say
that farmers are exempt from CWA permitting under section 404(f)(1) of
the statute. This claim is disingenuous. Section 404(f)(2) allows the
agencies to require permits for discharges into navigable waters for a
new use that reduces the waters' flow or circulation or reach. The
agencies have interpreted that ``recapture'' provision so broadly that
one court called it an administrative repeal.'' \91\
---------------------------------------------------------------------------
\91\ See Memorandum and Order, United States v. County of Steams,
Civ. 3-89-616 (D. Minn. March 15, 1990), at 18.
---------------------------------------------------------------------------
In 2013, the Corps issued a ``cease and desist'' order to
Subcommittee member Congressman John Duarte claiming that he needed a
CWA 404 permit to plow a field on his farm. The Corps claimed that the
field contained wetlands and plowing caused the mounded soil next to
the furrows to dry out, calling those mounds ``mini mountain ranges,''
``uplands,'' and ``dry land.'' \92\ According to the Corps,
notwithstanding section 404(f) of the CWA, plowing is not exempt
because it converts wetlands to uplands.
---------------------------------------------------------------------------
\92\ See ``From Preventing Pollution of Navigable and Interstate
Waters to Regulating Farm Fields, Puddles and Dry Land: A Senate Report
on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers
and the U.S. Environmental Protection Agency under the Clean Water
Act,'' Sept. 20, 2016, available at https://www.epw.senate.gov/public/_
cache/files/9/9/99dc0f4b-50a8-4b9e-a604-cb720e7f19bc/
1C09C14A8FD18AB786684EB1E
6538262.wotus-committee-report-final1.pdf and the photograph in
Appendix Exhibit 4.
---------------------------------------------------------------------------
In 2015, the Corps claimed that changing use of a field from
alfalfa to orchards was a change and therefore was not an exempt normal
farming activity.\93\
---------------------------------------------------------------------------
\93\ Response to Questions for the Record submitted by Don Parrish,
Case Study 7, Hearing on ``Erosion of Exemptions and Expansion of
Federal Control--Implementation of the Definition of Waters of the
United States,'' May 20, 2016, available at https://www.epw.senate.gov/
public/index.cfm/hearings?ID=3F9479F7-CA54-44B6-A202-631D86380A66
---------------------------------------------------------------------------
The 2023 WOTUS Rule also greatly reduces the scope of the long-
standing exemption for prior converted cropland. This exemption was
included in the regulatory definition of WOTUS in 1993. The preamble of
that rule stated that an area would lose its status as prior converted
cropland if the cropland is ``abandoned,'' meaning that crop production
ceases and the area reverts to a wetland state. Specifically, the
preamble to the 1993 regulations stated that prior converted cropland
that now meets wetland criteria will be considered abandoned unless
``once in every five years it has been used for the production of an
agricultural commodity, or the area has been used and will continue to
be used for the production of an agricultural commodity in a commonly
used rotation with aquaculture, grasses, legumes, or pasture
production.'' \94\ In 2005, the Corps attempted to change that
interpretation for its field staff in a memorandum, replacing the
``abandonment'' test with a change of use test. The District Court for
the Southern District of Florida set aside that memorandum as a
spurious rulemaking that violated the Administrative Procedure Act.\95\
Notwithstanding the Corps' attempt to change the definition of prior
converted cropland, EPA continued to use the abandonment test until
now.\96\ Thus, the 2023 WOTUS Rule is a change from ``pre-2015
practice,'' despite claims to the contrary, which will result in costs
to farmers. The agencies recognize this in their Economic Analysis
although they claim they cannot quantify the costs.\97\ In comments on
the proposal that led to the 2023 WOTUS Rule, the agriculture community
estimated that the cost could be billions.\98\
---------------------------------------------------------------------------
\94\ 88 Fed. Reg. at 3106-07.
\95\ New Hope Power Co. v. U.S. Army Corps of Eng'rs, 746 F. Supp.
2d 1272 (S.D. Fla. 2010). The Corps followed the directive of the court
only in the area subject to the court's jurisdiction. 88 Fed. Reg. at
3107.
\96\ Economic Analysis, at 49-50.
\97\ Id.
\98\ 88 Fed. Reg. at 3109.
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The 2023 WOTUS Rule also raises the specter of CWA regulation of
rice fields. The 2015 WOTUS rule expressly excluded flooded rice fields
in the regulatory text and they would not have been jurisdictional
under the 2020 rule. However, the 2023 WOTUS Rule exempts flooded rice
fields only if they are used exclusively for purposes such as rice
growing.\99\ This ``exclusive use'' limitation ignores the fact that
many rice farmers lease their fields to duck hunters and obtain another
source of revenue. The preamble to the 2023 WOTUS Rule says the
agencies will not claim jurisdiction over a rice field if it is being
used by waterfowl or other wildlife but says nothing about use by duck
hunters.\100\
---------------------------------------------------------------------------
\99\ 33 CFR 328.3(b)(5).
\100\ 88 Fed. Reg. at 3116.
---------------------------------------------------------------------------
Finally, the 2023 WOTUS Rule fails to exclude stormwater control
features, wastewater recycling basins, and groundwater recharge basins
even though those features were excluded from the 2015 rule and would
not have been swept in by the 2020 rule.
The 2023 WOTUS Rule gives EPA and the Corps extensive tools to
claim control over land, creating uncertainty for and imposing burdens
on landowners, farmers, and municipalities across the United States.
appendix a
EXHIBIT 1: Back-to-back storms.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Windsor, California, Jan. 9, 2023.
EXHIBIT 2: Tennessee farmer's field identified as WOTUS by the Corps in
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
EXHIBIT 3: Karst Map of the Conterminous United States_2020
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
United States Geological Survey at https://www.usgs.gov/mission-areas/
water-resources/science/karst-aquifers
EXHIBIT 4: Photograph of Congressman Duarte's field.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Photograph from U.S. Department of Justice, Expert Team Rebuttal
Report, Duarte Nursery, Inc. et al. U.S. Army Corps of Engineers/United
States v. Duarte Nursery, Inc. et al., No. 2:13-cv-02095, Document 244-
4, filed Aug. 15, 2016.
EXHIBIT 5: Martin's Farm
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Before clearing
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
After clearing.
EXHIBIT 6: Tire ruts that the Corps claimed were jurisdictional
wetlands.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mr. Rouzer. I thank the gentlewoman.
Mr. Owen, you are now recognized.
Mr. Owen. Thank you, Chairman Rouzer, Ranking Member
Napolitano, I appreciate the opportunity to speak today.
Mr. Rouzer. I don't think your mic is on.
Mr. Owen. Oh, the mic is not on.
Mr. Rouzer. And if you can pull that microphone closer to
you.
Mr. Owen. Yes, I will do that.
Mr. Rouzer. There you go.
TESTIMONY OF DAVE OWEN, HARRY D. SUNDERLAND PROFESSOR OF LAW
AND FACULTY DIRECTOR OF SCHOLARLY PUBLICATIONS, UNIVERSITY OF
CALIFORNIA COLLEGE OF LAW, SAN FRANCISCO
Mr. Owen. Thank you, Chairman Rouzer, Ranking Member
Napolitano, and Ranking Member Larsen, for the opportunity to
speak with you today.
In my testimony, I am going to explain how the 2022 waters
of the United States rule is better for water quality, better
for the economy, better for States, and a better interpretation
of statutory text.
Protecting water quality is the point of the Clean Water
Act. Through years of research, scientists have concluded that
we cannot have water quality in our rivers, lakes, and seas if
we do not protect the smaller streams and wetlands that feed
those rivers, lakes, and seas. Those small streams and wetlands
are as important to larger waterways as our capillaries are to
our pulmonary system or as a tree's leaves and roots are to its
trunk.
Despite that importance, the 2020 rule would have
eliminated Clean Water Act protection from most of the Nation's
small wetlands and streams. The 2020 rule never tried to
explain how this change would be better for water quality nor
could it.
The 2022 rule restores those protections, and it does so by
establishing familiar standards that date back to 1975 and have
been elaborated in detail since 1986. This will improve water
quality across the Nation.
Next, economics.
Because the new rule makes environmental sense, it also
makes economic sense. Water quality is valuable. Hunting,
fishing, and often tourism require clean water. Clean water is
an important input for many manufacturing processes. Everyone
needs clean water to drink. But drinking water treatment is
expensive, and it is more expensive if the source water is
dirtier.
An honest appraisal of the economic benefits of cleaner
water should have been part of the 2020 rule. It was not.
Instead, the previous rule's economic analysis pretended that
some well-known benefits did not exist, claimed inaccurately
that others could not be measured, and premised its analysis on
some demonstrably fallacious assumptions, like, for example, an
assumption that States would simply backfill whatever
protections the Federal Government withdrew.
The whole rule was based on sleight-of-hand accounting,
with that accounting designed to hide millions of dollars in
costs to the American public.
The new rule fixes these problems. Through a good faith
accounting, it explains that restored benefits will produce
hundreds of millions of dollars in benefits. Adopting this rule
was the economically responsible thing to do.
The new rule also supports States. This might be a sort of
surprising claim because the Clean Water Act's detractors
typically claim to be on the side of State power, but that
claim misunderstands how Clean Water Act federalism actually
works.
The Clean Water Act was designed to address major problems
that States could not address on their own. States have no
authority over pollution sources beyond their borders. And
polluting industries will play States against each other,
creating a race to the bottom and seeking the weakest possible
form of regulation.
Sorry, I am missing a couple pages here.
In fact, however, the Clean Water Act was designed to
respond to these State challenges by empowering States in
multiple ways.
So, the first key way in which it empowers States is again
by allowing them to participate in every program that is part
of the statute. In addition, it allows States to comment on
permits from upstream sources. And it finally allows, through
section 401, States to assert power over the Federal
Government.
In other words, section 401 gives States the ability to
condition permits issued by the Federal Government in ways that
are protective of State water quality. That is a huge benefit
that would be taken away if the scope of Clean Water Act
jurisdiction shrinks.
Finally, the rule does a better job with statutory text.
The key text that we are interpreting here is the waters of the
United States. Under any plausible reading of that text, it
would include aquatic features that have water and that are
permanently present. That includes streams, that includes
wetlands, that includes ponds, even if they don't have a
permanent connection to some larger water body.
The new rule respects that text, and in contrast the
previous rule mangles statutory text by creating some strange
distinctions between waters that are covered and waters that
are not.
So, in summary, the new rule is a better interpretation of
statutory text, it is better for the economy, it is better for
States, and, most importantly, it is better for water quality.
I look forward to your questions. Thank you.
[Mr. Owen's prepared statement follows:]
Prepared Statement of Dave Owen, Harry D. Sunderland Professor of Law
and Faculty Director of Scholarly Publications, University of
California College of Law, San Francisco
I. Introduction
Last year was the 50th anniversary of the passage of the Federal
Water Pollution Control Act, which we now refer to as the Clean Water
Act. That anniversary was an occasion to celebrate the act's
extraordinary achievements--achievements we also ought to be
celebrating here today.
Around the nation, rivers that once were open sewers now are
treasured community resources, even as this nation has experienced
sustained economic growth.\1\ It is not hard to understand why popular
support for water quality protections remains so strong.\2\
---------------------------------------------------------------------------
\1\ 50 Years after the Clean Water Act--Gauging Progress, U.S.
Govt. Accountability Office, October 17, 2022, https://www.gao.gov/
blog/50-years-after-clean-water-act-gauging-progress.
\2\ Americans Strongly Support Environmental Protections in the
Clean Water Act, Walton Family Foundation, September 20, 2022, https://
www.waltonfamilyfoundation.org/learning/access-and-availability-to-
clean-water-is-a-concern-nationwide (``The poll found strong support
among Americans for the Clean Water Act, with 75% in favor of
protecting more waters and wetlands. It also showed Americans strongly
prefer the federal government, through the Environmental Protection
Agency, to maintain water standards in the country.'').
---------------------------------------------------------------------------
But protecting these achievements, and fulfilling the Clean Water
Act's promise, will require continued support from this Congress, as
well as continued implementation efforts by the United States Army
Corps of Engineers (Army Corps) and the U.S. Environmental Protection
Agency (EPA).
Protecting water quality remains a work in progress. Thousands of
waterways remain impaired, imposing huge costs on the nation. We are
much better off than we were in 1972, but we are still far from making
our waters fishable and swimmable.\3\
---------------------------------------------------------------------------
\3\ 50 Years after the Clean Water Act--Gauging Progress, U.S.
Govt. Accountability Office, October 17, 2022, https://www.gao.gov/
blog/50-years-after-clean-water-act-gauging-progress.
---------------------------------------------------------------------------
For reasons I will explain in more detail, the 2022 Army Corps and
EPA rule interpreting the statutory phrase ``the waters of the United
States'' is crucial to protecting the progress we have made and to
turning the additional promise of the Clean Water Act into reality.
The rule is necessary to protect water quality. It is consistent
with the Clean Water Act's text and with decades of nearly
uninterrupted agency interpretations and practice. It makes economic
sense. And it is also necessary because the regulation it replaces--a
rule promulgated in 2020 under the previous administration--was at odds
with statutory text, water quality protection, rational economics, and
its own stated justifications.
I am the Harry D. Sunderland Professor at the University of
California College of Law, San Francisco, where I teach classes in
environmental law, water law, and statutory interpretation and
administrative law. I have worked in the environmental field for my
entire career, first as a consultant helping regulated businesses
comply with environmental laws and then as a water lawyer and law
professor.\4\ Most of my research focuses on water resource management,
and several of my research papers focus specifically on implementation
of the Clean Water Act by the Army Corps and EPA.\5\ I also have spent
much of my research career trying to understand, often through
conversations with regulators and regulated-entity attorneys, how
regulators and regulated communities work together to promote
environmental protection and economic development.\6\
---------------------------------------------------------------------------
\4\ These comments draw on that previous work, and they also draw
in places on text I have written for amicus briefs submitted on behalf
of members of Congress.
\5\ See Little Streams and Legal Transformations, 2017 Utah L. Rev.
1; Regional Federal Administration, 63 UCLA L. Rev. 58 (2016).
\6\ See, e.g. The Negotiable Implementation of Environmental Law,
75 Stan. L. Rev. 137 (2023); Consultants, the Environment, and the Law,
61 Ariz. L. Rev. 823 (2019); Critical Habitat and the Challenge of
Regulating Small Harms, 64 Florida L. Rev. 141 (2012); Urbanization,
Water Quality, and the Regulated Landscape, 82 U. Colo. L. Rev. 431
(2011); see also Todd Aagaard, Dave Owen & Justin Pidot, Practicing
Environmental Law (2nd ed. 2021).
---------------------------------------------------------------------------
II. Statutory Text
Our governance system requires that agencies take actions
consistent with their statutory mandates. The 2022 EPA/Army Corps rule
respects that responsibility. The preceding regulation did not.
Each rule tries to explain the meaning of the statutory phrase
``the waters of the United States.'' \7\ The two rules differ primarily
in their application of that phrase to aquatic features, like streams,
wetlands, and ponds, that lack continuous surface-water connections to
larger waterways. The 2020 rule would have excluded most of those
aquatic features. The 2022 rule would include those features, so long
as protecting them has ``sufficient nexus''--in other words, a genuine
connection--to maintaining water quality in what we refer to as
``navigable-in-fact'' waterways.\8\
---------------------------------------------------------------------------
\7\ 33 U.S.C. Sec. 1362(7).
\8\ The test comes from Justice Kennedy's opinion in Rapanos v.
United States, 547 U.S. 715 (2006). Because the four dissenting
justices also would also have supported finding jurisdiction for any
water with a significant nexus to water quality in navigable-in-fact
waters, Justice Kennedy's opinion has held controlling weight for
waters to which it applies.
---------------------------------------------------------------------------
Statutory interpretation is supposed to start with the ordinary
meaning of the text,\9\ and as a matter of textual reading, the former
rule's demand for continuous surface connections to navigable-in-fact
waterways does not make sense. In normal, everyday speech, a pond,
swamp, or stream counts as ``waters'' regardless of the average flow
level in its outlet or the fact that it might come and go with the
seasons.\10\ If someone tells you, ``There are no waters on this
land,'' you would not expect to encounter a pond, stream, or wetland.
And if you did encounter such a feature, you certainly would not say,
``Well, it's not actually a body of water because the outlet might dry
up in July.'' Normal speech does not even hint at the tortured
linguistic distinctions of the 2020 rule. In contrast, everyday
language is consistent with a definition that includes the nation's
intermittent streams and disconnected wetlands as part of ``the waters
of the United States.'' They are waters, and they are of the United
States.
---------------------------------------------------------------------------
\9\ See FCC v. AT&T Inc., 562 U.S. 397, 403 (2011) (``When a
statute does not define a term, we typically give the phrase its
ordinary meaning.'') (internal quotation marks omitted).
\10\ See, e.g., Porter v. Armstrong, 39 S.E. 799, 799 (N.C. 1901)
(referring to ``the waters'' of a swamp); Com. v. Reed, 34 Pa. 275
(1859) (same). Outside of legal speech, the same conventions exist. The
Bible, for example, repeatedly refers to ``the waters'' of springs
without mentioning whether those springs had continuous surface
connections to navigable-in-fact waters. E.g. Judges 5:19 (referring to
``the waters of Meggido'').
---------------------------------------------------------------------------
The 2022 rule's interpretation also is historically grounded. In
1975, the Army Corps issued regulations interpreting Clean Water Act
jurisdiction as extending to ``the entire length of rivers and
streams,'' bringing its interpretation in line with a position EPA had
asserted several years earlier.\11\ In 1977, the Army Corps finalized
those rules.\12\ For the next four decades, both agencies consistently
maintained that interpretation of their jurisdiction. Only under the
Trump administration did they purport to discover a narrower mandate in
the statute. Meanwhile, Congress twice enacted significant amendments
to the Clean Water Act, both times choosing to leave these
jurisdictional interpretations intact--as it also did in the many years
it chose to leave the Clean Water Act alone.\13\
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\11\ Permits for Activities in Navigable Waters or Ocean Waters, 40
Fed. Reg. 31320 (July 15, 1975).
\12\ Regulatory Programs of the Army Corps of Engineers, 42 Fed.
Reg. 37,122, 31,129 (July 19, 1977).
\13\ Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566
(1977); see Sam Kalen, Commerce to Conservation: The Call for a
National Water Policy and the Evolution of Federal Jurisdiction over
Wetlands, 69 N.D. L. Rev. 873, 881-86 (1993).
---------------------------------------------------------------------------
The 2022 regulations therefore are not doing something novel or
unfamiliar. They are simply clarifying long-established standards and
correcting a historical anomaly.
III. Water Quality and a Scientific Basis
Congress chose the Clean Water Act's name for a reason. The central
purpose of the Clean Water Act, as repeatedly stated by Congress, is to
protect water quality, and Congress clearly expected that protection to
be grounded in scientific knowledge. The statute opens by declaring,
``[t]he objective of this chapter is to restore and maintain the
chemical, physical, and biological integrity of the Nation's Waters.''
\14\ The statute's opening section also states that water quality
regulation must provide for ``the protection and propagation of fish,
shellfish, and wildlife'' and ``provide[] for recreation,'' all of
which requires understanding, through science, the conditions upon
which fish, shellfish, wildlife, and recreation depend, and the
relationships between those conditions and water pollution.\15\ Any
lawful regulation interpreting the term ``waters of the United States''
must respect this text and must be crafted to advance this central
statutory purpose.\16\
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\14\ 33 U.S.C. Sec. 1251(a).
\15\ 33 U.S.C. Sec. 1251(a)(2).
\16\ See 5 U.S.C. Sec. 706(2)(A); Motor Vehicle Mfrs. Assn. of
United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S.
29, 43, 49 (1983) (finding that an agency's rule was arbitrary and
capricious when it failed to consider options consistent with the
intent of the underlying statutory scheme)
---------------------------------------------------------------------------
The 2020 rule made no pretense of honoring that purpose. The
agencies did not even try to explain how their new rule would improve
water quality. They also made almost no effort to grapple with the
extensive scientific studies they had previously compiled, or with the
huge body of scientific literature upon which those studies drew.
Indeed, they did not even try to gather information on the numbers of
streams and wetlands that would lose protection. When asked for that
information by members of Congress, a political appointee candidly
admitted that the agencies did not know.\17\
---------------------------------------------------------------------------
\17\ Hearing before the Subcommittee on Water Resources and the
Environment of the Committee on Transportation and Infrastructure,
September 18, 2019, pp 16-17 (Sept. 18, 2019), available at https://
www.govinfo.gov/content/pkg/CHRG-116hhrg40826/pdf/CHRG-
116hhrg40826.pdf.
---------------------------------------------------------------------------
If the 2020 rule had taken water-quality science seriously, it
would have acknowledged how important protecting wetlands and small
streams is to protecting water quality everywhere. The agencies'
earlier studies and the supporting scientific literature explain in
great detail how protecting even the smallest tributaries--including
intermittent and ephemeral tributaries and wetlands that lack direct
surface connections to nearby waters--is essential to protecting water
quality in larger waterways.\18\ Small tributaries and wetlands absorb
nutrients, limiting toxic and costly algae blooms in downstream
waterways.\19\ They capture and store floodwaters, sustaining
navigability and protecting people who live or work downstream.\20\
They nurture fish and wildlife, sustaining the food webs that make
rivers fishable--and that support popular human activities like hunting
and birdwatching.\21\
---------------------------------------------------------------------------
\18\ See Dave Owen, Little Streams and Legal Transformations, 2017
Utah L. Rev. 1, 6-11 (summarizing this literature).
\19\ See Richard B. Alexander et al., Dynamic Modeling of Nitrogen
Losses in River Networks Unravels the Coupled Effects of Hydrologic and
Biogeochemical Processes, 93 Biogeochemistry 91, 110 (2009)
\20\ See Comm. On Reducing Stormwater Discharge Contributions to
Water Pollution, Nat'l Research Council, Urban Stormwater Management in
the United States 166-70 (2009) (describing flooding impacts).
\21\ See Judy L. Meyer et al., The Contribution of Headwater
Streams to Biodiversity in River Networks, 43 J. Am. Water Resources
Ass'n 86 (2007).
---------------------------------------------------------------------------
In short, the scientific literature demonstrates that small
wetlands and streams are as essential to a river system as leaves are
to a tree.\22\ The 2020 rule simply ignored that importance.
---------------------------------------------------------------------------
\22\ U.S. EPA, Connectivity of Streams and Wetlands to Downstream
Waters: A Review and Synthesis of the Scientific Evidence 2-14 (2015).
---------------------------------------------------------------------------
The 2022 rule, with its emphasis on water quality connections,
appropriately respects the importance of science. This time around, the
agencies have quantified the areas that would retain protection.
Likewise, they have explained, at length, how scientific research
informs their choices about the geographic scope of Clean Water Act
protection. They have respected, rather than ignored, their mandate
from Congress.
IV. The 2022 Regulations Make Economic Sense
Because it makes environmental sense, the 2022 rule also makes
economic sense. The 2020 rule did not, and indeed, the previous
administration went to great lengths to hide just how much its rule
would cost America.\23\ That should be of great concern to this
Congress, which is appropriately focused on the nation's economy. It
also is a major legal reason why the 2020 rule needed to be replaced.
Regulations must be informed by careful economic analyses, not by
sleight of hand.
---------------------------------------------------------------------------
\23\ See David A. Keiser et al, Report on the Repeal of the Clean
Water Rule and its Replacement with the Navigable Waters Protection
Rule to Define Waters of the United States (WOTUS) 4-6 (2020), https://
cb4388c0-f641-4b7b-a3ad-281c0e6f8e88.filesusr.com/
ugd/669644_5aa4f5f0493a4902a3aaed117bd92aef.pdf.
---------------------------------------------------------------------------
The 2022 rule recognizes the obvious: water quality is economically
valuable. Improved water quality raises home values.\24\ Many economic
activities directly depend on clean water and on protection of the
physical integrity of streams and wetlands. Hunting, fishing, and
boating are all large industries--as well as activities that bring many
Americans the difficult-to-quantify happiness that comes from
recreating outside.
---------------------------------------------------------------------------
\24\ See, e.g., See Lynne Y. Lewis et al., Dams, Dam Removal and
River Restoration: A Hedonic Property Value Analysis, 26 Contemp. Econ.
Pol'y 175, 185 (2008)
---------------------------------------------------------------------------
Many other businesses depend on quality water as an industrial
input. A notorious recent example captures this importance: in 2012,
when the City of Flint switched to a dirtier water supply, a General
Motors plant dealt with months of operational problems and finally had
to find a new water source.\25\ Additionally, every business in the
nation has employees who need to drink.
---------------------------------------------------------------------------
\25\ See Mike Colias, How GM Saved Itself from Flint Water Crisis,
Automotive News, January 31, 2016.
---------------------------------------------------------------------------
Dirty water also poses huge financial burdens on public water
suppliers and the customers they serve.\26\ Water treatment is
expensive, and it becomes more expensive if the water source has more
contaminants.\27\ Preventing pollution is usually much cheaper than
cleaning it up, but if the Clean Water Act does not apply, and
pollution prevention does not occur, the public can get stuck with big
bills.
---------------------------------------------------------------------------
\26\ See Margo Pollans, Drinking Water Protection and Agricultural
Exceptionalism, 77 Ohio St. L.J. 1195 (2016).
\27\ See David Sedlak, Water 4.0 (2014).
---------------------------------------------------------------------------
As other researchers have explained in detail, the 2020 rule
pretended that many of these benefits didn't exist. A study by the
Institute for Policy Integrity (at NYU Law School) provides a succinct
summary of the previous rule's analytical failings:
[T]hese analyses suffer from severe methodological flaws. And
correcting the analyses would very likely show that the
rollbacks are net costly to society, depriving the public of
potentially billions of dollars in annual forgone benefits. The
agencies' flaws fall into several broad categories.
First, the agencies leave out most of the harmful impacts
from their cost-benefit analyses--including impacts on safe
drinking water, flooding, and habitats for aquatic and
endangered species--claiming false helplessness in the face of
data gaps. Second, though the agencies monetize the impact of
the rollbacks on wetlands that will be lost, their analysis
arbitrarily excludes most of the relevant forgone benefits. For
example, they arbitrarily limit their calculations to the
benefits of protecting wetlands inside a state only, ignoring
the well-recognized benefits that people derive from waters
outside of their state. Moreover, the agencies erroneously
limit the benefits that in-state residents derive from wetlands
protection, through an arbitrary assumption that allows them to
undervalue the per-acre benefits and through ignoring the
unique local benefits that wetlands provide. The agencies also
make the unsupported assumption that states will choose to fill
the regulatory gap left after the rollbacks--despite the lack
of any federal mandate to do so and the fact that many states
have recently demonstrated antipathy to additional clean-water
regulation. And third, the agencies overvalue the cost savings
of the rules.\28\
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\28\ Bethany Davis Noll et al., Beneath the Surface: The Concealed
Costs of the Clean Water Rule Rollback (2020).
Even with all this sleight of hand, the agencies still could not
say that their calculations showed a net benefit to society. Instead,
they simply speculated that such a benefit might occur.
On the other side of the ledger, the costs of protecting wetlands
and streams tend to be greatly overstated. The subset of businesses
that objects to Clean Water Act regulations typically argues that the
law shuts down productive activities and that perceived ambiguities in
the scope of Clean Water Act coverage create crippling uncertainty.
But the former claim ignores the flexibility available to property
owners through permitting processes. In many places, the presence of
protected streams or wetlands does not prevent construction; instead,
the property can be developed in a different way that avoids the
wetlands or streams. That avoidance will benefit the people who
ultimately use the site; their houses or businesses will not be
constructed in places that routinely flood.\29\
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\29\ Construction techniques can protect houses and buildings from
floodwaters, but usually just by pushing the water somewhere else. It
still will come down from the sky and go somewhere. That means filling
in streams and wetlands--which, even if they are ephemeral, are places
that predictably flood--almost inevitably means putting people's
property, and perhaps their lives, at risk.
---------------------------------------------------------------------------
And if avoidance is not possible, property owners may use
compensatory mitigation--which means compensating for on-site impacts
by protecting or restoring similar streams or wetlands in a different
place--to proceed with their project.\30\ The result can be economic
development and enhanced environmental protection, with each occurring
in places where they make the most sense. A secondary result is the
growth and sustenance of industries devoted to finding ways to
accommodate both development and environmental protection.\31\
---------------------------------------------------------------------------
\30\ See Palmer Hough & Morgan Robertson, Mitigation Under Section
404 of the Clean Water Act: Where It Comes from, What It Means, 17
Wetlands Ecology & Mgmt. 15 (2009)
\31\ See National Environmental Banking Association, https://
environmentalbanking.org/.
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The latter claim ignores the many ways property owners can find out
about the scope of Clean Water Act coverage. The Army Corps publishes a
detailed manual explaining how to identify waters subject to regulatory
coverage.\32\ An extensive environmental consulting industry can help
landowners identify protected aquatic features.\33\ In fact,
consultants had done just that in some of the most prominent Clean
Water Act controversies. John Rapanos, for example, was warned that
there were protected wetlands on his properties, and he chose to
destroy those wetlands in open defiance of the law, not because he was
ignorant of the Clean Water Act's applicability.\34\
---------------------------------------------------------------------------
\32\ U.S. Army Corps of Engineers, Corps of Engineers Wetlands
Delineation Manual (1987), https://www.lrh.usace.army.mil/Portals/38/
docs/USACE%2087%20Wetland%20Delineation
%20Manual.pdf.
\33\ See Dave Owen, Consultants, the Environment, and the Law, 61
Ariz. L. Rev. 823 (2019).
\34\ See Rapanos v. United States, 547 U.S. 715, 763 (2006)
(Kennedy, J. concurring). As Justice Kennedy summarizes:
Informed that the site included between 48 and 58 acres of
wetlands, Rapanos allegedly threatened to ``destroy'' the consultant
unless he eradicated all traces of his report. Rapanos then ordered
$350,000-worth of earthmoving and landclearing work that filled in 22
of the 64 wetlands acres on the Salzburg site. He did so without a
permit and despite receiving cease-and-desist orders from state
officials and the EPA. At the Hines Road and Pine River sites,
construction work--again conducted in violation of state and federal
compliance orders--altered an additional 17 and 15 wetlands acres,
respectively.
Id.
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Additionally, if landowners do not want to pay for consultants or
want a second opinion, they can ask the Army Corps for a jurisdictional
determination--a service the agency provides for free.
The 2022 rule, which is accompanied by detailed and careful
economic studies, reveals just how egregious the flaws in the 2020
economic analysis were. After considering the many benefits the 2020
rule pretended were nonexistent, the 2022 economic analysis finds that
the new rule is likely to produce between $854 million and $1.97
billion in net benefits.\35\ These numbers are inexact, of course, and
the 2022 economic analysis acknowledges these uncertainties.\36\ But
the overall point of the analysis is clear. The 2022 rule will save
lots of money and deliver significant benefits to people all across the
country.
---------------------------------------------------------------------------
\35\ U.S. Environmental Protection Agency and Department of the
Army, Economic Analysis for the Final ``Revised Definition of `Waters
of the United States' '' Rule xvi (2022).
\36\ Id.
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V. Protecting State Authority
An additional major failing of the 2020 rule was its
misunderstanding of state roles in Clean Water Act implementation. This
failing was ironic, for the previous administration claimed that
federalism was the central justification for its regulatory changes.
But it got Clean Water Act federalism completely wrong.
The Clean Water Act is designed to empower states by helping them
work with the federal government to protect their water quality. It was
not designed to let states turn polluters loose. The act, in other
words, seeks to empower states--and in fact does so--but it empowers
them to clean up waterways, not to leave them dirty. Because the 2020
rule misunderstood this basic principle, it would have undermined state
power.
The Clean Water Act is built on cooperative federalism. In this
system, states are crucially important as partners in working toward
the shared national goal of water quality protection. That system was a
deliberate choice. Congress knew that water pollution does not respect
state boundaries and that in the absence of statutory coverage, states
would be unable to protect themselves from pollution flowing from
further upstream. Congress also knew that polluting industries would
play states against each other, seeking favorable treatment. As
Minnesota Governor Wendell Anderson explained, in testimony quoted by
multiple members:
Every governor in the country knows what is the greatest
political barrier to effective pollution control. It is the
threat of our worst polluters to move their factories out of
any State that seriously tries to protect its environment. It
is the practice of playing off one State against the other.\37\
---------------------------------------------------------------------------
\37\ A Legislative History of the Water Pollution Control
Amendments of 1972 152 (1972) (Statement of Rep. Reuss).
Congress also knew that state employees were ready to work on
improving water quality and could tailor water quality programs to
local needs, which meant they could be valuable partners in improving
the nation's water quality--if they had federal mandates and support.
Members repeatedly stressed the important roles states would play in
implementing the regulatory regime, and the basic concept was to
``engage[] all levels of government . . . in a concerted national
effort to cleanse our water.'' \38\
---------------------------------------------------------------------------
\38\ Id. at 218 (Statement of Sen. Eagleton).
---------------------------------------------------------------------------
The 2020 rule misunderstood all of this. Its misunderstanding
began, ironically, with the very text it chose to selectively
emphasize. They 2020 rule's preamble relied heavily--in fact, nearly
exclusively--on Clean Water Act section 101(b), which states, in
relevant part,
It is the policy of the Congress to recognize, preserve, and
protect the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution, to plan the
development and use (including restoration, preservation, and
enhancement) of land and water resources, and to consult with
the Administrator in the exercise of his authority under this
chapter.\39\
---------------------------------------------------------------------------
\39\ 33 U.S.C. Sec. 1251(b) (parentheses in original).
This language clearly emphasizes the importance of states. But it
expresses Congress's desire for the states to be heavily involved in
protecting waters that are subject to Clean Water Act jurisdiction. It
says nothing about excluding a class of aquatic features from that
protection or about turning states loose to authorize pollution.
Other language of section 101 also indicates that the purpose of
state involvement was to restrain water pollution, not protect
polluters. Section 101(b) itself begins by noting the
``responsibilities and rights of States to prevent, reduce, and
eliminate water pollution.'' \40\ And in section 101(a)--indeed, in the
very first words of the statute--Congress emphasized that ``[t]he
objective of this chapter is to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' \41\ It
then listed seven specific national policies, all focused on improving
water quality.
---------------------------------------------------------------------------
\40\ 33 U.S.C. 1251(b).
\41\ 33 U.S.C. 1251(a).
---------------------------------------------------------------------------
The text therefore makes the goal of section 101(b) crystal clear.
Congress was enlisting the states in pursuit of the crucial national
goal of protecting water quality. It was not trying to limit the scope
of the Clean Water Act's coverage.
Section 101 is not the only Clean Water Act section that
demonstrates Congress's intent that states be key participants in the
project of achieving national water quality goals. This emphasis on
state participation is particularly salient in the act's key permitting
programs. Clean Water Act section 402, which authorizes the National
Pollutant Discharge Elimination System (NPDES) permitting program,
authorizes delegation of permitting authority to state agencies.\42\
Nearly every state in the country has taken up this invitation, and
NPDES permitting now is largely handled at the state level.\43\
---------------------------------------------------------------------------
\42\ 33 U.S.C. Sec. 1342.
\43\ See EPA, NPDES State Program Information, https://www.epa.gov/
npdes/npdes-state-program-information.
---------------------------------------------------------------------------
Similarly, Clean Water Act section 404, which creates the
permitting program for discharges of dredged or fill material,
authorizes delegation of permitting authority (except for a subset of
waters reserved for federal permitting authority) to state agencies,
but it does not give states the option to exempt waters from regulatory
protection.\44\
---------------------------------------------------------------------------
\44\ 33 U.S.C. Sec. 1344(e).
---------------------------------------------------------------------------
The theme of all these sections, and many others, is that Congress
valued state involvement, and it expected that state involvement to be
directed toward the national project of restoring the nation's waters.
These and other provisions of the Clean Water Act also reflect a
second theme of section 101(b), which is empowering the states to go
further than the federal government in protecting water quality, even
where that meant giving states power over the federal government. One
of the clearest authorizations for these efforts comes from section
401, which authorizes states to issue water quality certifications for
projects involving federally licensed discharges.\45\ Section 401 gives
states authority to require additional steps, beyond those already
imposed by federal agencies, to protect state water quality.\46\
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\45\ 33 U.S.C. Sec. 1341. In 2020, EPA issued a final rule
drastically curtailing the scope of states' section 401 certification
authority, while baldly asserting that its restrictions ``neither
diminish[] nor undermine[] cooperative federalism.'' Clean Water Act
Section 401 Certification Rule, 85 Fed. Reg. 42210, 42226 (2020). The
position embodied in these two rulemakings--that federalism carries
outcome-determinative importance when states want to authorize water
pollution and is irrelevant when the states seek to protect their
waterways--turns the core objective of the Clean Water Act on its head.
See 33 U.S.C. 1251(a) (``The objective of this chapter is to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters.'').
\46\ 33 U.S.C. Sec. 1341.
---------------------------------------------------------------------------
Section 401 reflects a broader theme. As Justice John Paul Stevens
once pointedly noted, ``[n]ot a single sentence, phrase, or word in the
Clean Water Act purports to place any constraint on a State's power to
regulate the quality of its own waters more stringently than federal
law might require. In fact, the Act explicitly recognizes States'
ability to impose stricter standards.'' \47\ Likewise, section 1365(e)
preserves state common law protections, and section 1370 allows
additional state regulation as long as it is not ``less stringent''
than federal requirements.\48\ And section 404, which tends to be at
the center of jurisdictional controversies, similarly preserves state
authority to regulate above and beyond federal requirements, even when
that state regulation constrains federal activities.\49\
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\47\ PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology, 511
U.S. 700, 723 (1994) (Stephens, J. concurring) (citing 33 U.S.C. Sec.
1311(b)(1)(C)).
\48\ See 33 U.S.C. Sec. Sec. 1365(e), 1370.
\49\ 33 U.S.C. Sec. 1344(t).
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For decades, states have acted in reliance on these federal
commitments.\50\ Clean Water Act implementation has honored Congress's
blueprint for substantial state roles in advancing water quality, while
also preserving states' ability to be partners in water quality
protection and to manage land and water resources. Indeed, because many
of these partnerships depend on federal Clean Water Act jurisdiction,
the NWPR would actually have undermined state authority.
---------------------------------------------------------------------------
\50\ For a general summary of state programs, see Association of
State Wetlands Managers, Status and Trends Report on State Wetlands
Programs in the United States (2015), https://
www.nawm.org/pdf_lib/state_summaries/
status_and_trends_report_on_state_wetland_
programs_in_the_united_states_102015.pdf.
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In practice, states do take the lead in implementing nearly every
key part of the statute. They adopt water quality standards.\51\ They
draft water pollution budgets and engage in continuing planning
processes.\52\ Nearly every state holds delegated authority to issue
NPDES permits.\53\ And while only three states (Florida, Michigan, and
New Jersey) have elected to hold delegated authority to issue section
404 permits, states influence those permits in a variety of ways. Using
their authority under section 401, states routinely work with the Army
Corps' district offices to craft the terms of section 404 permits, and
they also work with the Corps to implement compensatory mitigation
programs.\54\
---------------------------------------------------------------------------
\51\ See EPA, State-Specific Water Quality Standards Effective
under the Clean Water Act (CWA), https://www.epa.gov/wqs-tech/state-
specific-water-quality-standardseffective-under-clean-water-act-cwa
(last visited October 6, 2020).
\52\ See EPA, Impaired Waters and TMDLs, https://www.epa.gov/tmdl/
overview-total-maximum-daily-loads-tmdls (last visited October 6,
2020).
\53\ EPA, NPDES State Program Information, https://www.epa.gov/
npdes/npdes-state-program-information.
\54\ See Dave Owen, Regional Federal Administration, 63 UCLA. L.
Rev. 58, 98-99, 115 (2016).
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State involvement, in short, pervades every part of Clean Water Act
implementation, and state implementation of that authority is often
intertwined with and supported by federal efforts and contingent upon
waters falling within Clean Water Act jurisdiction. Consequently,
unless states enact new legislation and appropriate additional funds,
many of these state programs would shrink if Clean Water Act
jurisdiction were narrowed.
Importantly, there are many other ways in which the Clean Water Act
leaves state authority intact. Even if a waterway is subject to federal
jurisdiction, states still retain primary responsibility for allocating
water rights in that waterway.\55\ If the waterway is navigable-in-
fact--and thus unquestionably subject to Clean Water Act jurisdiction--
the state in which it is located still owns its streambed.\56\
Similarly, so long as streams or wetlands are not on federally owned
land, states and local governments retain their land use authority over
those streams and wetlands and surrounding uplands. Nor is there de
facto preemption of that authority. If states or local governments want
to authorize development in areas with jurisdictional aquatic features,
they generally can, and they routinely do so; the Corps issues tens of
thousands of fill permits every year, and permit denials are
exceedingly rare.\57\
---------------------------------------------------------------------------
\55\ See generally Barton H. Thompson et al., Legal Control of
Water Resources (6th ed. 2018) (describing, over hundreds of pages, the
doctrines states use to allocate waters from waterways subject to Clean
Water Act jurisdiction)
\56\ PPL Montana, LLC v. Montana, 565 U.S. 576, 589 (2012)
(describing ``[t]he rule that the States, in their capacity as
sovereigns, hold title to the beds under navigable waters'').
\57\ See Ryan W. Taylor, Federalism of Wetlands 88 (2013) (``During
the time of this study, the USACE approved an average of 86,427 permits
per year.''); Dave Owen, Little Streams and Legal Transformations, 2017
Utah L. Rev. 1, 41 (quoting an experienced state water-quality
regulator, who observed that ``there is no stopping things, with very,
very, very limited exceptions'').
---------------------------------------------------------------------------
In short, federal and state authority routinely and productively
coexist and support each other, just as the Clean Water Act's drafters
hoped and intended they would. The 2020 regulations would have
undermined those partnerships--and would have done so in the false
guise of protecting states. The 2022 regulations place those
partnerships back on their traditional foundations, so that states, the
federal government, and the people of the United States may benefit.
* * * * *
In summary, the new Clean Water Act ``waters of the United States''
regulations should be welcomed by this Congress. They are consistent
with the statute, governing legal authority, decades of tradition, and
the preferences of the American public. They are consistent with
extensive scientific research emphasizing the importance of streams and
wetlands--even small ones--to water quality throughout our nation. They
will help sustain and restore traditional, and successful, partnerships
between federal and state governments. And they will save the American
public hundreds of millions of dollars.
This new rule is not a complete solution to the water quality
challenges facing the United States, and we have much more work to do
if we are to fulfill the Clean Water Act's promise and end widespread
impairment of our waterways. But the new rule is an important step in
the right direction.
Mr. Rouzer. I thank the gentleman. I thank all the
witnesses again for their great testimony.
We will now move into Member questions, and I will
recognize myself for 5 minutes.
Ms. Bodine, I noted in your testimony you state that back-
to-back rainstorms can be considered, quote, ``relatively
permanent flow.'' What would that mean for California after its
recent storms or for my home State of North Carolina after a
hurricane?
Ms. Bodine. Thank you, Chairman Rouzer.
I was very surprised when I read that in the preamble. What
is clear is that the agencies are trying to expand the
``relatively permanent'' test because they are worried that the
Sackett case will in fact get rid of the ``significant nexus''
test.
And so, it has language in there about what would be
considered relatively permanent--and remember, that would be
automatically regulated--and included flows from back-to-back
rainstorms as an example.
That would mean that water that covered the landscape
because of multiple rainstorms and then ended up moving across
the landscape could be considered a relatively permanent flow.
I think that is ludicrous, but the fact that they put that
as an example in there was deeply troubling.
Mr. Rouzer. Mr. Hawkins, can you speak to how
overregulation and broad scope interpretations like
``significant nexus'' gives firepower to radical
environmentalists, and trial lawyers in particular, and how it
creates an easy path to stall or shut down family farms and
animal agriculture in North Carolina, Missouri, and across the
country.
Mr. Hawkins. Thank you for the question, Mr. Chairman.
I would say, if I could use one word to describe how my
fellow farmers and ranchers feel, it is ``overwhelmed.'' We
feel like this new rule essentially shifts the burden of proof
back to us rather than the agencies. It is almost a notion that
we are guilty until proven innocent.
And while folks talk about the exemptions that
agriculturists had, the reality is I wouldn't be testifying
today if those longstanding exemptions were tight enough that
we weren't having farmers embroiled in litigation, not just in
Missouri but all around the country.
So, as you look at an expansive definition of WOTUS and the
potential for more features to fall under Federal regulatory
control, our farmers have to be concerned about the citizen
suit provisions and what that could mean in challenging normal,
everyday practices.
They have every right to be concerned about future
investment in their farming operations and have to second-guess
whether putting in place that conservation practice or building
that structure or investing in that building is worth it if you
are going to be embroiled in redtape in a potentially years'
long process.
So, overwhelmed with the uncertainty that comes with an
expansive rule, Mr. Chairman, that would summarize how our
farmers feel.
Mr. Rouzer. Ms. Huey, everybody wants affordable housing.
You hear that talked about all over. I certainly hear it back
home. Why can't we have more affordable housing when the prices
are skyrocketing left and right? How would this affect
affordable housing?
Ms. Huey. Thank you for the question. We talked about the
6- to 12-month delay in the jurisdictional determination. That
is where our project just sits, and we continue to make
interest payments.
As a small business owner, that is how I make a living, is
building homes. I can't absorb all those regulatory costs. I
have to pass it on to the home buyer.
As I said earlier, for every $1,000 increase in a median-
priced home, and that is about $412,000, that is 117,000
families that it prices out of the market. And right now, about
87.5 million people cannot afford a median-priced home.
Thank you.
Mr. Rouzer. Mr. Williams, in your testimony you indicated
that ditches can be regulated in practice under the new WOTUS
rule, but the agencies say they will be exempt. What do you
think is leading to this confusion?
Mr. Williams. We have had many different rules over the
years. Sometimes ditches are exempt, sometimes they are
included.
The current rule states that any ditch that has flowing
water or conveys water from one area to another becomes
jurisdictional. This has a big effect on properties that have
agricultural fields, for example, or even residential areas
where ditches are currently included, and it effects our
ability to permit areas like that, it causes lengthy delays.
And we will continue to look for ways in which we can get those
permits and reduce our mitigation costs for those.
Mr. Rouzer. I thank the panelists. My time has expired.
I now recognize my good friend from California, Mrs.
Napolitano.
Mrs. Napolitano. Thank you, Mr. Chairman.
I ask unanimous consent to insert in the record public
comments by the Metropolitan Water District of Southern
California and public comments from different attorneys
general, especially the California attorney general and various
other attorneys general, supporting the Biden Clean Water Rule.
Mr. Rouzer. Without objection.
[The information follows:]
Letter of February 7, 2022, to Ms. Damaris Christensen, Oceans,
Wetlands and Communities Division, Office of Water, Environmental
Protection Agency, and Ms. Stacey Jensen, Office of the Assistant
Secretary of the Army for Civil Works, Department of the Army, from
Jennifer Harriger, Manager, Environmental Planning Section,
Metropolitan Water District of Southern California, Submitted for the
Record by Hon. Grace F. Napolitano
February 7, 2022.
Submitted Electronically
https://www.regulations.gov
Ms. Damaris Christensen,
Oceans, Wetlands and Communities Division,
Office of Water (4504-T), Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
Ms. Stacey Jensen,
Office of the Assistant Secretary of the Army for Civil Works,
Department of the Army, 108 Army Pentagon, Washington, DC 20310-0104.
Dear Ms. Christensen and Ms. Jensen:
Docket ID No. EPA-HQ-OW-2021-0602 Revised Definition of ``Waters of the
United States''
The Metropolitan Water District of Southern California
(Metropolitan) appreciates the opportunity to comment on the U.S.
Environmental Protection Agency (EPA) and the Department of the Army's
(collectively, Agencies) proposed rule, Revised Definition of ``Waters
of the United States'' (Proposed Rule). It is Metropolitan's
understanding that the Agencies intend to revise the definition of
``waters of the United States'' (WOTUS) using two rulemakings--(1) a
foundational rule to restore longstanding protections (Part I), and (2)
an anticipated second rule (Part II) that builds on that regulatory
foundation; and that the Proposed Rule is only Part I of this
rulemaking process. (86 Fed. Reg. 69372, 69374 (Dec. 7, 2021.)
Metropolitan supports the Agencies' Proposed Rule that puts back
into place the pre-2015 definition of ``WOTUS,'' updated to reflect
consideration of Supreme Court decisions. As the Agencies expressly
recognize, the objective of the Clean Water Act (CWA) to protect water
quality must be considered when defining ``WOTUS.'' (86 Fed. Reg. at
69387.) The definition of WOTUS is central to the implementation of the
CWA and has significant implications for Metropolitan's day-to-day
operations and source water protection efforts.
After carefully reviewing the Proposed Rule, Metropolitan
respectfully submits the following comments:
1. Support for the Pre-2015 Definition of WOTUS;
2. Support for Recent Supreme Court Decisions;
a. Any tributary that contributes a significant volume of flow
to another WOTUS should be covered under the CWA
b. Functional equivalency is an important concept to protect the
Nation's waterways
3. Additional Supreme Court Findings Not Reflected in the Proposed
Rule;
c. Metropolitan requests that the Agencies clarify that
artificial water supply infrastructure is excluded from the definition
of WOTUS, consistent with Justice Scalia's plurality opinion in Rapanos
v. United States \1\;
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\1\ See Rapanos v. United States, 547 U.S. 715, 736 n.7 (2006)
(``highly artificial, manufactured, enclosed conveyance systems . . .
and the `mains, pipes, hydrants, machinery, buildings, and other
appurtenances and incidents' . . . likely do not qualify as `waters of
the United States,' despite the fact that they may contain continuous
flows of water'') (some citations omitted).
---------------------------------------------------------------------------
d. If the Agencies add an exclusion for water supply and
delivery facilities and infrastructure, Metropolitan requests that the
Agencies clarify that such an exclusion would not affect the
applicability of the Water Transfers Rule to water transfers from one
WOTUS to another WOTUS via water supply infrastructure.
4. Request Clarification of Part II of Rulemaking Process.
A. BACKGROUND
Metropolitan is a regional water wholesaler that delivers water to
26 member agencies, which in turn, directly or through their sub-
agencies, provide water to nearly 19 million people in Los Angeles,
Orange, Riverside, San Bernardino, San Diego, and Ventura counties.
Metropolitan imports water from the Colorado River and northern
California and is the largest distributor of treated drinking water in
the United States. To supply southern California with reliable and safe
water, Metropolitan owns and operates an extensive water system
including the Colorado River Aqueduct, 15 hydroelectric facilities, 9
open-water reservoirs, 830 miles of large-scale pipes, and 5 water
treatment plants.
As a steward of southern California's imported water supply,
Metropolitan supports CWA amendments and regulations that protect
current and future water quality for both surface water bodies and
groundwater basins that serve as drinking water sources. The watersheds
for Metropolitan's water sources span California and the Colorado River
Basin, which includes the states of Wyoming, Utah, Colorado, Arizona,
Nevada, and New Mexico. Protection of these source waters and
watersheds is of paramount importance. As such, any potential for
source water degradation through insufficient oversight in areas
proximate to rivers and tributaries is an issue of concern.
Metropolitan strongly supports the stated objectives of the CWA to
restore and maintain the quality of the Nation's waters while
respecting the primary responsibilities and rights of states and tribes
over their land and water resources. In this regard, Metropolitan
appreciates that the Agencies realize they must consider the CWA's
principal objective ``to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters'' in interpreting the
scope of the statutory term ``waters of the United States.'' (86 Fed.
Reg. 69387.) Furthermore, ``as the text and structure of the Act,
supported by legislative history and Supreme Court decisions, make
clear--chemical, physical and biological integrity refers to water
quality.'' (Id.) In the comments below, Metropolitan asks the Agencies
to clarify a few areas and to continue to ensure the protection of
sources of drinking water in the new rule.
B. COMMENTS ON THE PROPOSED RULE
1. Support for the Pre-2015 Definition of WOTUS
The Proposed Rule retains the familiar categories of waters in the
1986 regulations--traditional navigable waters, interstate waters,
``other waters,'' impoundments, tributaries, the territorial seas, and
adjacent wetlands--while proposing to add, where appropriate, a
requirement that waters also meet either the significant nexus standard
or the relatively permanent standard. (86 Fed. Reg. at 69387.) In
general, Metropolitan agrees with the Agencies that returning to the
pre-2015 definition of WOTUS provides ``a known and familiar framework
for co-regulators and stakeholders.'' (86 Fed. Reg. at 69374; see also
id. at 69404-06.) For example, Metropolitan relies on A Field Guide to
the Identification of the Ordinary High Water Mark (OHWM) in the Arid
West Region of the Western United States (ERDC/CRREL TR-08-12, Lichvar
and McColley 2008) to discern the physical limits of non-wetland
aquatic resources, as well as the EPA's and Army Corps' Rapanos
Guidance \2\ to determine potential federal jurisdiction. Also, the
Agencies have over a decade of nationwide experience in making
decisions regarding jurisdiction under the 1986 regulations consistent
with the relatively permanent standard and the significant nexus
standard as interpreted by the Rapanos Guidance. (86 Fed. Reg. at
69405.) Thus, because the Proposed Rule ``reflects consideration of the
agencies' experience and expertise, as well as updates in
implementation tools and resources, it is familiar and implementable.''
(86 Fed. Reg. at 69374.)
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\2\ ``Clean Water Act Jurisdiction Following the U.S. Supreme
Court's Decision in Rapanos v. United States & Carabell v. United
States,'' EPA and Army Corps, December 2, 2008.
---------------------------------------------------------------------------
More specifically, Metropolitan supports the pre-2015 practice of
identifying jurisdictional tributaries through physical indicators,
specifically: (1) indicators of ordinary high water mark (OHWM), and
(2) connectivity to a traditional navigable waterway. First, the
regulations identify the factors to be applied to identify the OHWM,
defined in 33 CFR Part 328.3, and these regulations have been further
explained in the Regulatory Guidance Letter (RGL) 05-05 (December 7,
2005) (RGL 05-05). Metropolitan understands that under the Proposed
Rule, the Agencies will apply the regulations, RGL 05-05, and
applicable OHWM delineation manuals and take other steps as needed to
ensure that the OHWM identification factors are applied consistently
nationwide. (86 Fed. Reg. at 69437 (citing Rapanos Guidance at 10-11,
n. 36.)) Second, in the Rapanos Guidance, the Agencies identify
numerous functions provided by tributaries and wetlands that are
relevant to the significant nexus determination. (86 Fed. Reg. at
69437.)
In comparison, the Navigable Waters Protection Rule's (NWPR's) and
the Clean Water Rule's reliance on alternative characteristics--
including flow regime, watershed size, landscape position, or distance
from a navigable waterway--are not relevant characteristics of
jurisdictional tributaries. In addition, Metropolitan agrees with the
Agencies that key elements of the NWPR's definition of tributary were
very difficult to implement. (86 Fed. Reg. at 69422.) For these
reasons, Metropolitan supports the pre-2015 practice of identifying
jurisdictional tributaries through physical indicators.
2. Support for Recent Supreme Court Decisions
a. A Tributary that Contributes a Significant Volume of
Flow to Another WOTUS Should Be Covered Under the
CWA
As explained above, the watersheds for Metropolitan's water sources
span California and the Colorado River Basin. Protection of these
source waters and watersheds is critical to the health and welfare of
the residents of southern California and will support Metropolitan's
and other western water agencies' efforts to provide reliable and
affordable high-quality water in the western United States. As a
regional water provider with source water originating in multiple
jurisdictions, Metropolitan highly values the protection of the quality
of its source waters.
Metropolitan believes that any tributary that contributes a
significant volume of flow--whether it is ephemeral, intermittent, or
perennial, and whether the flow is contributed above the surface or
transmitted through waters located below the surface--to another WOTUS
should be covered under the CWA. As the Agencies previously recognized,
``an ephemeral feature may constitute a point source that discharges
pollutants to a `water of the United States.' '' (84 Fed. Reg. 4154,
4176 (Feb. 14, 2009) (citing Rapanos v. United States, 547 U.S. at 743-
44 (Scalia, J., plurality)).
b. Functional Equivalency is an Important Concept to
Protect the Nation's Waterways
Metropolitan supports the Supreme Court's ruling in County of Maui
v. Hawaii Wildlife Fund that found a CWA permit is required when a
point source pollutant discharged to groundwater has the same
functional equivalency as a direct discharge to a navigable water.
County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1476 (2020).
The Supreme Court set forth seven factors that help determine
functional equivalency: ``(1) transit time, (2) distance traveled, (3)
the nature of the material through which the pollutant travels, (4) the
extent to which the pollutant is diluted or chemically changed as it
travels, (5) the amount of pollutant entering the navigable waters
relative to the amount of the pollutant that leaves the point source,
(6) the manner by or area in which the pollutant enters the navigable
waters, and (7) the degree to which the pollution (at that point) has
maintained its specific identity.'' (County of Maui, 140 S. Ct. 1462,
1476 (April 23, 2020).) This ruling is consistent with Metropolitan's
previous comments on Docket ID Number: EPA-HQ-OW-2018-0063--Clean Water
Act Coverage of ``Discharges of Pollutants'' via a Direct Hydrologic
Connection to Surface Water, as well as previous CWA guidance by EPA
(66 Fed. Reg. 2960, 3017 (Jan. 12, 2001)).
Metropolitan believes that subjecting the above features to CWA
permitting is consistent with the text, structure, and purpose of the
CWA. The CWA's objective is to ``restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' (33 U.S.C.
Sec. 1251(a).) The Agencies have the authority to permit such
releases, and CWA permitting is the best way to protect the chemical,
physical, and biological integrity of source water quality, such as in
the Colorado River Basin states. Furthermore, Metropolitan appreciates
the Agencies' recognition that ``[c]onsistent with the Supreme Court's
opinion in Maui, a rule defining `waters of the United States' must
consider its effects on the chemical, physical, and biological
integrity of the Nation's waters. And--as the text and structure of the
Act, supported by legislative history and Supreme Court decisions, make
clear--chemical, physical, and biological integrity refers to water
quality.'' (86 Fed. Reg. at 69407.) The development of a Proposed Rule
that protects source water quality is of paramount importance to
Metropolitan.
3. Additional Supreme Court Findings Not Reflected in the Proposed Rule
a. Artificial water supply infrastructure should be
excluded from the definition of WOTUS, consistent
with Justice Scalia's plurality opinion in Rapanos
v. United States
Metropolitan requests that the Agencies provide a separate, clear
exclusion for water supply and delivery facilities and infrastructure.
Adding an express exclusion for water supply and delivery facilities
and infrastructure would further the Agencies' goal of providing
greater clarity over which waters are and are not regulated under the
CWA, would simplify the jurisdictional determination process, and would
be consistent with the purpose of the CWA and the Agencies'
interpretation of the CWA and Supreme Court precedent. (See 86 Fed.
Reg. at 69424 (the longstanding exclusions for prior converted cropland
and waste treatment systems from the WOTUS definition ``provide
important clarity''); see also 85 Fed. Reg. 22250, 22317-18 (Apr. 21,
2020).)
Public water supply and delivery facilities and infrastructure
should be excluded from regulation under WOTUS, similar to the
exclusion provided for waste treatment systems. (See 85 Fed. Reg. at
22324--recognizing the importance of water reuse and recycling
``particularly in the arid West where water supplies can be limited and
droughts can exacerbate supply issues,'' the Agencies excluded water
reuse and wastewater recycling structures constructed or excavated in
upland or non-jurisdictional waters.) Waste treatment systems treat
waters to remove contaminants to allow that water to be discharged to
the ground for groundwater recharge and other beneficial uses. The
longstanding practice of the Agencies has been to exclude these
facilities from regulation under the CWA. (86 Fed. Reg. at 69424.)
Public water systems typically divert waters from a WOTUS into a
water system that conveys, stores, treats, and delivers water to
residential, agricultural, and industrial users. This water has value,
and the costs to treat water to drinkable standards are high.
Generally, public water agencies are extremely protective of the
quality of water in their systems and spend a large amount of money to
protect water quality both in the system and in source waters.
Excluding these systems from regulation as a WOTUS will not result in a
degradation of water quality. Conversely, regulating public water
systems will result in increased costs for permitting and compliance
and may subject public water systems to separate and conflicting
regulations when these agencies try to comply with federal and state
drinking water requirements, as well as CWA requirements.
When clean water is delivered to water agency customers, those
users then subject that water to various residential, agricultural, and
industrial uses. Wastewaters from those uses are delivered to
wastewater recycling agencies, where the water is treated and then
reused or released. If excluding waste treatment systems from the
definition of WOTUS is consistent with the goals of the CWA, then
surely excluding public water systems that supply clean water to users
before the wastewater is generated should be excluded for the same
reasons.
Accordingly, Metropolitan requests that the Agencies provide a
clear exclusion for artificial drinking water supply and delivery
facilities and infrastructure. Similar to the exclusion for waste
treatment systems which includes treatment ponds or lagoons (86 Fed.
Reg. at 69449 (proposed revised 33 C.F.R. Sec. 328.3(a)(8))), an
exclusion for drinking water supply infrastructure should include all
components which are necessary for the supply, transportation, storage
treatment, and delivery of drinking water, including canals, siphons,
pipelines, reservoirs, groundwater basins, dewatering structures, water
treatment plants, and pumping plants. Adding this exclusion would
further the Agencies' goal of providing greater clarity over which
waters are and are not regulated under the CWA and would simplify the
jurisdiction issue. (See 86 Fed. Reg. at 69424; 85 Fed. Reg. at 22317-
18.) Excluding water supply infrastructure would also be consistent
with the Agencies' view that ``features that move water (particularly
in the arid West) that do not eventually reconnect into a tributary or
other jurisdictional water would not be jurisdictional. . . .'' (84
Fed. Reg. at 4195.)
Furthermore, artificial water supply infrastructure features are
regulated under a number of other federal laws, including the federal
Safe Drinking Water Act. Also, requiring water agencies to maintain
water stored in an artificial reservoir or canal at water quality
levels equal to natural water bodies, or to obtain dredge and fill
permits to perform maintenance work in an artificial canal, does not
further the purposes of the CWA. Lastly, excluding water supply
infrastructure is consistent with case law that certain waters and
features are not subject to the CWA. See, e.g., Rapanos v. United
States, 547 U.S. 715, 736 n.7 (2006) (``highly artificial,
manufactured, enclosed conveyance systems--such as `sewage treatment
plants,' . . . and the `mains, pipes, hydrants, machinery, buildings,
and other appurtenances and incidents' of the city of Knoxville's
`system of waterworks,' Knoxville Water Co. v. Knoxville, 200 U.S. 22,
27, 26 S. Ct. 224, 50 L. Ed. 353, 3 Ohio L. Rep. 572 (1906)--likely do
not qualify as `waters of the United States,' despite the fact that
they may contain continuous flows of water'') (some citations omitted).
b. Clarify That The Water Transfers Rule Will Continue To
Apply To Water Transfers Through Water Supply
Infrastructure
If the Agencies add an exclusion for water supply and delivery
facilities and infrastructure, Metropolitan requests that the Agencies
clarify that such an exclusion would not affect the applicability of
the Water Transfers Rule to water transfers from one WOTUS to another
WOTUS via water supply infrastructure. Under the Water Transfers Rule,
water transfers are exempt from the requirements of obtaining a permit
under Section 402 unless pollutants are introduced by the water
transfer activity itself to the water being transferred. (40 C.F.R.
Sec. 122.3(i).) ``Water transfer means an activity that conveys or
connects waters of the United States without subjecting the transferred
water to intervening industrial, municipal, or commercial use.'' (40
C.F.R. Sec. 122.3(i).) Typical water transfers ``route water through
tunnels, channels, and/or natural stream water features, and either
pump or passively direct it for uses such as providing public water
supply, irrigation, power generation, flood control, and environmental
restoration.'' (73 Fed. Reg. 33697, 33698 (June 13, 2008). (Emphasis
added.)
As EPA has noted, ``Water transfers are an essential component of
the nation's infrastructure for delivering water that users are
entitled to receive under State law.'' (73 Fed. Reg. at 33702.) In
fact, ``[m]any large cities in the west and the east would not have
adequate sources of water for their citizens were it not for the
continuous redirection of water from outside basins.'' (Id., at 33698.)
On January 18, 2017, the Second Circuit upheld the Water Transfers Rule
as a ``reasonable construction of the Clean Water Act supported by a
reasoned explanation.'' Catskill Mountains Chapter of Trout Unlimited,
Inc. v. EPA, 846 F.3d 492, 533 (2nd Cir. 2017), cert. denied, 138 S.
Ct. 1164 (2018). In the Preamble to the Proposed Rule, the Agencies
state that the Proposed Rule ``would not affect the existing statutory
or regulatory exemptions or exclusions from section 402 NPDES
permitting requirements, such as . . . the status of water transfers.''
(86 Fed. Reg. at 69416.) Accordingly, Metropolitan asks the Agencies to
clarify that the Water Transfers Rule--which is essential for the
social and economic health of the arid West where water sources are
often located far away from where the water is ultimately used--will
continue to apply to water transfers from one WOTUS to another WOTUS
via water supply infrastructure, even if water supply infrastructure is
excluded from the definition of WOTUS. If portions of Metropolitan's
drinking water infrastructure were to be considered WOTUS, expensive,
complex, and time-consuming CWA permits could be required, except if
the Water Transfers Rule applied.
4. Request Clarification of Part II of Rulemaking Process
Metropolitan requests that the Agencies clarify the process and
substance of Part II of the WOTUS rulemaking process. The Agencies
state in the Preamble to the Proposed Rule that they ``anticipate
developing another rule that builds upon the regulatory foundation of
this rule with the benefit of additional stakeholder engagement and
which could, among many issues, consider more categorical approaches to
jurisdiction.'' (86 Fed. Reg. at 69399.) It is unclear at this point
what other issues would remain and what additional regulations would be
needed after Part I of this rulemaking process to better restore the
chemical, physical, and biological integrity of the Nation's waterways.
Also, over the past several years, the definition of ``waters of
the United States'' has changed each time there has been a new
Administration, and every new definition has been challenged with
litigation. As a result, Metropolitan asks the Agencies to adopt a rule
in 2022 that: (1) reduces or eliminates the uncertainty that led to the
past decade of debate over WOTUS; (2) accommodates regional hydrologic,
geologic, and geographic differences where warranted and appropriate;
and (3) strikes a balance that preserves the environmental values
identified in the CWA while allowing for regulatory certainty and the
timely and cost-effective investment in infrastructure needed to meet
local water supply and treatment needs.
C. CONCLUSION
The definition of WOTUS is critical to the implementation of the
CWA. How WOTUS is defined has significant implications for
Metropolitan's day-to-day operations, as well as source water
protection efforts. Metropolitan requests that the Agencies: (1)
clarify that water supply infrastructure is excluded from the
definition of WOTUS; and (2) continue to ensure the protection of
source water quality.
We appreciate having the opportunity to provide input to this
process. If you have any comments or questions, please contact Sean
Carlson.
Very truly yours,
Jennifer Harriger,
Manager, Environmental Planning Section,
Metropolitan Water District of Southern California.
Letter of February 7, 2022, to the U.S. Environmental Protection Agency
and U.S. Army Corps of Engineers from Attorneys General of California,
New York, Connecticut, Illinois, Maine, Maryland, Massachusetts,
Michigan, New Mexico, North Carolina, Oregon, Vermont, Washington,
Wisconsin, the District of Columbia, the City of New York, and the
California State Water Resources Control Board, Submitted for the
Record by Hon. Grace F. Napolitano
The 22-page letter is retained in committee files and is available
online at https://oag.ca.gov/system/files/attachments/press-docs/
WOTUS%20Rule%20States%27%20
Comment%20Letter_02072022.pdf.
Mrs. Napolitano. I also ask unanimous consent to include in
the record the latest map produced by EPA that shows the areas
of the country that depend on ephemeral and intermittent
streams for their drinking water.
Mr. Rouzer. Without objection.
[The information follows:]
Map Showing Percentage of Intermittent Stream Length by Watershed,
Submitted for the Record by Hon. Grace F. Napolitano
Percentage of Intermittent Stream Length by Watershed
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Mrs. Napolitano. As shown above, you can tell where all the
drought is where the ephemeral and intermittent streams meet
which are affected most.
Mr. Owen, many California residents and farmers receive
water that starts as ephemeral or intermittent streams. Over
the past month, the West has experienced extensive storms that
have temporarily replenished these streams, but are unlikely to
resolve the long-term drought.
As the Southern California MWD and California's attorney
general have stated in the comments just submitted for the
record, source waters must be protected by the Clean Water Act
or else families, businesses, and farmers will bear the costs
of cleaning the water before it is suitable for drinking,
swimmable, or usable.
Can you discuss how important it is for water agencies and
water users to have protection of their water sources, and what
effects they face if their waters are not protected?
Mr. Owen. Yes. There are two main effects that come from
failing to protect source waters. One is a loss of water
supply. If you fill in source waters, then often you are
filling in areas where water infiltrates, seeps into the
ground, and then back into surface waterways, or from which it
flows into larger waterways.
That water instead moves off the landscape much more
quickly as a flood, which is obviously damaging, but it also
means that later on, when things dry out and we need more
water, it is not there. And so, that forces water suppliers to
go in search for additional water, which can be very costly if
they can find it.
The other effect is a loss of water quality. That is
because pollution flows downstream. And so, as we put
pollutants in source waters, which is what we are discussing
doing today, some of that pollution will migrate downstream.
We also lose the pollution control ability of source
waters. So, smaller waterways are very, very effective at
taking some nutrients out of waterways. When those nutrients
move downstream, we tend to get blue-green algae blooms, which
are toxic, which can again shut down water supplies.
So, all of this means that when we don't protect source
waters, we are essentially giving up a significant part of our
water supply and water treatment infrastructure. And then we
just have to spend more money further downstream in order to
replace the infrastructure we have let go, and those costs are
passed on to consumers.
Mrs. Napolitano. Thank you, sir.
Mr. Owen, during the Trump administration, efforts were
made to roll back the protections under section 401 of the
Clean Water Act which allow States and Tribes to protect State
water resources.
Can you discuss the importance of strong section 401
protections and how that might be impacted by Trump's ``dirty
water rule''?
Mr. Owen. Yes. So, I think section 401 is one of the least
appreciated and most important parts of the statute. As I
explained earlier, section 401 is key to the Clean Water Act
giving States power to protect their water quality and power
over the Federal Government. And during the Trump
administration, the administration proposed rules that were
specifically designed to gut section 401 authority and limit
State power.
I think that gives the lie to the claim that this is all
about protecting States or that it is significantly about
protecting States. That was not the motivation.
If you combine a loss of authority under section 401 with a
loss of the scope of jurisdiction under the Clean Water Act
more generally, that is a one-two gut punch to State power to
protect water quality, because it means not only do the States
have less influence where jurisdiction exists, but they also
less ability to protect themselves from activities authorized
by the Federal Government.
Mrs. Napolitano. Thank you, Chairman Rouzer. I yield back,
sir.
Mr. Rouzer. Mr. Webster, you are recognized for 5 minutes.
Mr. Webster of Florida. Thank you, Mr. Chair.
Mr. Hawkins, you, I think, mentioned in your testimony that
there were advantages, and one of those advantages was low-
lying areas in a field would collect water. And could you
explain how those are advantages?
Mr. Hawkins. Congressman, can you repeat the last part of
your question?
Mr. Webster of Florida. Could you explain how having low-
lying areas in a field that collect water in a storm or
something are--actually I think you used the word
``advantage.'' So, how are they advantaged by that?
Mr. Hawkins. Well, as I think about agriculture as a whole,
as I think about my own State of Missouri, something we are
blessed with is certainly diversity in agriculture. And we farm
or ranch where we do because we have access to water.
And as I think through this rule, every farmer or rancher
has to think about the features that they have on their
property and question whether all of a sudden now they are
potentially jurisdictional and therefore fall under the
authority of the EPA and the Corps.
As we talk about features, truly what comes back to my
mind, Congressman, is uncertainty, regulatory uncertainty as to
the responsibility that comes along with those features.
As I hear from our farmers, as they have questions because
of the length and the scope of this rule when they read terms
like ``similarly situated,'' ``in the region,'' ``material
influence,'' when they say, ``What do I need to do?'' I can't
in good faith ask them to go to one of our six district Corps
offices in the State without first consulting with legal
counsel or an environmental expert to walk them through the
potential ramifications and what happens as they look at
continuing to invest in their property and ultimately put more
conservation on the ground.
So, that is what comes to mind. Whether it is a low-lying
area, a ditch or anything, our farmers and ranchers across the
country are a mesh of all of these features. And truly they are
blessings when we think about access to water and ultimately
our ability to produce food, fiber, and renewable fuel.
Ultimately this is what it is about for us, Congressman. It
is about continuing to use the resources with which we have
been blessed and are truly the envy of the world.
So, let's take a commonsense approach to this, and that is
what our farmers have asked for a long time. We want clean
water because we need clean water for our families and for our
livestock, but we also need clear rules.
Thank you.
Mr. Webster of Florida. Thank you for that answer.
Several years ago, we had a joint hearing with the
Committee on Transportation and Infrastructure and the Senate
Committee on Environment and Public Works and others after the
Supreme Court had ruled the definition to be unconstitutional.
At that time, the Army Corps of Engineers and the EPA, I
believe, had joined up to do a new rule, which was similar or
maybe even more oppressive than the one that was there. Now I
am hearing that they are teaming up again.
Why do you think that is?
Mr. Hawkins. Was that directed to me again, Congressman?
Mr. Webster of Florida. Yes.
Mr. Hawkins. Well, I would just say, as I think back to the
2015 rule, I guess one thing that was certain is that there was
the broadest expansion of the Clean Water Act arguably that we
had seen since its inception in 1972.
What is different about this approach? I would describe it
as regulatory creep, regulatory creep in the sense that it is
going to come in a case-by-case determination across the
landscape, whether that is in Missouri, California, you name
it.
So, I still think the end results will be the same in terms
of more dry land under the jurisdiction of the Federal
agencies, but it is going to happen over time, case by case,
and ultimately a regulatory creep that is going to happen
across the United States landscape.
Mr. Webster of Florida. Thank you very much. That is a
great definition: regulatory creep. So, thank you for bringing
that up, too.
Mr. Chairman, I yield back.
Mr. Rouzer. The gentleman yields back.
I now recognize Mr. Larsen.
Mr. Larsen of Washington. Thank you, Mr. Chair. Some
questions for the panelists.
I am not a lawyer. I presume, Mr. Williams, Ms. Huey, and
Mr. Hawkins, you are not lawyers as well. So, we can maybe talk
at that level. But I do want your opinion on the law.
First, from Mr. Hawkins. And maybe you don't have one.
Maybe the Farm Bureau has an opinion on whether or not you
expect the Supreme Court to write a new test in the Sackett
case if the Government loses and the proponents win. What is
your expectation?
Mr. Hawkins. OK. Well, I would certainly hope that we----
Mr. Larsen of Washington [interrupting]. I am not asking
what you hope.
Mr. Hawkins. I think that the arguments that the American
Farm Bureau, that the Sackett family have put forward, are very
compelling arguments. I would say that.
Mr. Larsen of Washington. Do you expect, though, that the
Supreme Court will write a new test? They could decide for
Sackett and not write a test. They could write a new test. If
they don't write a test, we have uncertainty. If they do write
a test, you don't know what it is, and I don't know what it is,
and that sounds like uncertainty.
Mr. Hawkins. It is uncertainty. That is why we have said no
SCOTUS before WOTUS--or no WOTUS before SCOTUS. Sorry. I got it
backwards.
Mr. Larsen of Washington. I understood what you meant.
Ms. Huey, so, the same question for the homebuilders, what
the position on that is. What do you expect if Sackett--if the
proponents win, what do you expect?
Ms. Huey. Well, I would still love to hope. But----
Mr. Larsen of Washington [interrupting]. We are in the hope
business up here, but we have to actually make decisions
sometimes based on what we know and what we don't know.
Ms. Huey. Yes, sir. I agree with my colleague. It is the
uncertainty that is the problem for us.
I deal with codes and everything in construction that gives
me a clear guideline for how to build a house.
Mr. Larsen of Washington. Yes, sure.
Ms. Huey. But this does not. We need the certainty and the
clear rules.
Mr. Larsen of Washington. And I don't mean to interrupt you
or talk over you. But if you don't get a test out of the
Supreme Court if the proponents win, then you don't have a
test, and we are left with uncertainty.
Ms. Huey. Uncertainty, yes, sir.
Mr. Larsen of Washington. That is kind of the point I am
getting at. I mean, arguing about certainty really doesn't fly.
Mr. Williams, we talked yesterday, so I kind of teed you up
a little bit on this. Do the Sand & Gravel folks have a view on
that?
Mr. Williams. We believe the Supreme Court will be able to
offer a clear definition of what is jurisdictional, help us to
create that line that says: What is relatively permanent? What
is not under Federal jurisdiction but should be under State
jurisdiction?
Mr. Larsen of Washington. As clear as Scalia and Kennedy
did in 2000 and whatever it was?
Mr. Williams. We believe they can come up with a clearer
definition this time around.
Mr. Larsen of Washington. OK. Thanks. I am making my point.
You guys get it. I am making my point on this one.
Mr. Owen, is it a fair assessment--I am thinking through
about this issue--kind of leaving it to the States to fill the
gap when the Trump-era rule came out, to fill a gap on clean
water. It doesn't sound like that happened. Is it a fair
assessment that there is little evidence the States had
uniformly to come in to fill the gaps created by the Trump-era
rule?
Mr. Owen. So, there have been some moves in a few States to
fill gaps, but no across-the-board movement, nothing close to
it. And it is understandable. Like, it is essentially an
unfunded mandate for States to come up with water quality
programs to backfill what the Federal Government had been
doing, or at least an unfunded request because they don't have
to do it.
And the States don't have the resources. They have been
relying, in many cases, on a partnership with the Federal
Government to protect waters and not developing their own
programs. And so, it is not an easy thing for them to do, and
we shouldn't be surprised that they don't do it.
Mr. Larsen of Washington. Yes. Look, as a former county
council member, I am not--I mean, I support the Clean Water
Act. I support clean water. I support having the EPA involved.
But I also understand that there is a frustration with
uncertainty, and I am just saying--thinking back when I was on
the county council trying to make some decisions as a local
elected about what is certain and what is not certain on land
use.
I mean, I get what you are going through. I am not arguing
that houses aren't great, and food isn't great, and we don't
need sand and gravel. I am not making those arguments at all.
I am just concerned that we are not going to get what
anyone wants out of the Supreme Court because I just don't
know--unless they become an activist Supreme Court--which I
presume we don't want out of the Supreme Court, I thought that
they weren't supposed to be activists--and they move forward
and write a test.
And so, I just think we are headed towards a more uncertain
future.
And with that, I have no time to yield back.
Mr. Rouzer. Mr. Babin.
Dr. Babin. Yes, sir. Thank you very much, Mr. Chairman.
And I want to thank all the witnesses for being here today
as well.
Unfortunately, over the last few decades, we have watched
the Obama and Biden administrations use WOTUS and its
definition basically as a political football used to punish
farmers, the energy industry, builders and contractors who rely
on water, and prop up lawyers racking up legal fees. Bigger
Government, confusion, and redtape, that is what this
administration seems to see as an end goal to WOTUS.
The rule was released as the U.S. Supreme Court prepares,
as we speak, to decide a case, as we have heard today, Sackett
v. EPA, which will provide more clarity on the issue. I am very
disappointed that EPA has moved ahead with its final rule while
the Supreme Court will soon render a decision on this matter.
And we can hope, and we can expect, and on and on. But the
fact of the matter is, the Supreme Court will make a ruling.
And this ruling could negate major elements of this WOTUS rule
and will create even more uncertainty for farmers.
Unfortunately, the new WOTUS rule, once again, gives the
Federal Government sweeping authority over private lands, and
this isn't what clean water regulations were intended to do
originally. This new rule is vague, it creates uncertainty for
America's farmers, even if they are miles from the nearest
navigable waters.
As a result of all this, you have seen members of the
agriculture community rally and legally challenge this rule.
Republicans strongly support this.
Mr. Hawkins of the Missouri Farm Bureau, sir, this is your
question. You have made some great points with your comments
and some of your answers today. If there is one takeaway that
you would like the members of the committee and the folks
watching at home to take away from this hearing today, please,
what would it be?
Mr. Hawkins. Well, Congressman, thank you for the question.
If I can talk personally, as a farmer and a father, there
is nothing more that I want to do than bring my kids home to
the farm. And as I plan for the future, everything that I am
doing is about trying to hopefully instill a work ethic and a
passion for my kids that they love production agriculture and
want to become the sixth generation.
Right now, we are investing our own dollars in putting in
an intensive grazing system. This is the first time my family
has actually contracted with the USDA to do something like
this, to put more conservation on the ground. We already do
conservation, but in this case we put our own dollars on the
line to cost-share through the Environmental Quality Incentives
Program.
As I think about this, we are doing it because it is the
right thing to do, to better steward the forage that we have
and to better steward our water resources, ultimately produce
healthy cattle as we think about how we rotate those animals.
And it is all about stewardship.
As I think about this rule, though, I have to question, how
is that going to impact going forward my ability to do more
conservation on the ground or to construct facilities on the
ground and how I manage my livestock? And then it begs the
question: Why? Why would my kids want to do it if they see
their father embroiled in redtape with the Government?
And so, truly, Congressman, as I think about this, I
implore you to help us help those who are going to come behind
us, because that is truly why I am here. It is about helping
the next generation of those who are going to produce food,
fiber, and fuel for this country.
Dr. Babin. Absolutely. And I really appreciate that honest
answer.
Still a minute left, if any of the other witnesses would
like to chime in on that.
Mr. Williams. I would be glad to.
Dr. Babin. Yes, sir. Mr. Williams.
Mr. Williams. Congress has provided an immense amount of
funding for infrastructure. The aggregates industry wants to be
the provider and get those projects done, get those projects on
the ground. And if we have delays that come from wetland
permitting and other delays that are required by this entire
process, all of that just makes these projects last longer and
perhaps we can't even get our permits to open a new facility.
So, our dream is to get to work and be able to get our
permits when we need them.
Dr. Babin. Absolutely.
Mr. Chairman, I am almost out of time. So, I will yield
back. Thank you.
Mr. Bost [presiding]. And the gentleman yields back.
The gentleman, Mr. Garamendi, is recognized.
Mr. Garamendi. Thank you.
Mr. Hawkins, I wasn't going to ask you a question, but in
your response to Mr. Babin you very well articulated my own
personal situation. I am a rancher. Our ranch is in a
conservation easement.
My question to you, as you talked about the future and
about your ranch and your love of it, how would you write the
law or the regulations to protect the waters that are on your
ranch and adjacent and probably flowing into larger streams?
How would you write it?
Mr. Hawkins. Thank you for the question. And thank you for
your ranching background and what you have contributed through
the years as well.
I would say, what our farmers and ranchers appreciated
about the Navigable Waters Protection Rule was that, for the
first time since 1972, that there were actual bright lines. And
we in Missouri are very comfortable with the regulatory
authority within our Department of Natural Resources and the
example of cooperative federalism that we see under the Clean
Water Act.
We have a citizen-led commission, the Clean Water
Commission in the State, that is essentially a sounding board
and an oversight mechanism as the Clean Water Act and the
State-accompanying laws and regulations are implemented.
So, I would say, in our example, we have a process that
works. And so, the bright lines under the NWPR were what were
appreciated because, for the first time, we actually felt
certainty.
I would also add, Congressman, that outside of the scope of
the Clean Water Act, we in Missouri have shown time and time
again that we are willing to go above and beyond to put
practices on the ground that ultimately preserve soil and
improve water quality.
Since the mid-1980s, we have had in place a sales tax, the
one-tenth cent sales tax, half of which goes to State parks,
the other to soil and water conservation. That has been
reapproved overwhelmingly by Missouri in every decade since
because it has proven--proven--to improve parks, but more
importantly, it is helping us save soil and improve water
quality by helping cost-share with farmers to do more on the
ground.
That is what this is about, truly, for us. We have shown
that we care about clean water, and we put our money out there
every day to access these resources to do more.
Mr. Garamendi. I appreciate that. But we are in the
business of writing law. We have gone--what do we call it?
Let's say we write, we rescind, and we repeat. That is what we
have done for the last almost 40 years now.
And it seems to me that we are going to have to have some
clarity here in the law; otherwise, we are going to continue to
write, rescind, and repeat.
And what my question to you and really to all of the
witnesses and to ourselves is: What should the law say? How do
we provide clarity so that we don't go through this unending
process--apparently unending process?
I don't know the answer. But it seems to me that we have
the responsibility of answering that question, that is to
provide the clarity in the law itself to the extent that--well,
far more extensive than the present situation. Otherwise, it is
going to be back and forth forever as the shifting winds of
Congress and the Presidency happen, and it will.
I search for that. And I really challenge myself. How would
I write it? What would I actually put in the law so that there
would be clarity? I understand the clarity and the necessity
for it. I have got ponds that I know eventually drain into a
river, and I am going: Hmm, how does this affect me? Don't know
the answer, but we have got to search for that answer.
And, Mr. Graves, your resolution would prevent us--would
prevent any further action until we wrote the law.
I yield back.
Mr. Bost. Mr. Burlison.
Mr. Burlison. Thank you, Mr. Chairman.
Mr. Owen, I wanted to ask you, I heard previously you had
mentioned that States really can't shoulder the burden of some
of this responsibility, that only the Federal Government has
the resources to do that.
I was puzzled by that because that is not, from my
experience, the case. From our State's perspective, the EPA is
really leaning on the State to do all of the work and shoulder
all of the burden in enforcing their regulations.
Mr. Owen. Let me clarify the answer.
What I am saying is it is very hard for States to do it
alone, in the same way that, as you just mentioned, it is
really hard for the Federal Government to do it alone.
And the system set up by the Clean Water Act is designed to
be a partnership within areas where there is Federal
jurisdiction under the statute, but that there is also State
authority.
And I think the other point I would make is that that
partnership has generally worked really well, where you have
Federal authority delegated to States, States acting with
Federal support, and all working on a joint project of trying
to advance water quality.
And so, the fear I was expressing is that, when the Federal
Government pulls back, the partnership goes away. And now the
States still have the authority to act, but that would mean, in
some cases, enacting new legislation, staffing up the effort,
gaining experience.
And so, that is challenging. That is where the difficulty
lies.
Mr. Burlison. So, certainly you can understand that the
water issues in the Midwest are different than the issues in
your State of California.
Do you feel that the Federal Government creating a one-
size-fits-all solution is appropriate, or do you believe that
the States should have more control?
Mr. Owen. So, I think calling it a one-size-fits-all
solution is not quite right because there is some flexibility
in the regulatory language that allows it to be adapted to the
different circumstances of different places.
That flexibility also leaves more room for interpretation,
which is I think the fear that we are hearing from the rest of
the panel.
Mr. Burlison. Certainly you have heard from some of the
testimony from the farming community of the impact that they
have. Do you sympathize or understand or share any of those
concerns? Have you ever been on a farm or worked on a farm,
tried to produce food to feed anyone?
Mr. Owen. So, I have tried to produce food. I have
gardened. I am bad at it. So, it was not a very successful
effort, but I have made the attempt. And I have spent time on
farms. I have not been employed on one ever.
So, to your question, do I sympathize? Absolutely.
Absolutely. I think everybody on this panel would agree that
water quality is important. I think everyone on this panel
would agree that economic development is important. And
everybody would agree that producing food, that producing
housing, that all of these things really matter.
Mr. Burlison. Thank you. Thank you, Mr. Owen.
Mr. Hawkins, I appreciate you being here today. I wanted to
get an idea. Whenever I was campaigning, I heard everywhere the
impact of the supply chain on farming, the impact of energy
costs, fertilizer costs, the impact of fuel costs.
I think my question to you is, is this the appropriate time
to saddle the farming community with these regulations?
Mr. Hawkins. Well, Congressman, thank you. Thank you for
the question.
I would say there is never a good time to saddle
agriculture or any sector of the economy with uncertain
regulatory requirements.
Congressman, as we think through this issue, as we think
through the regulatory process alone, if a farmer is subject to
a permit and must go through it, that is one thing. There are
costs associated with that permit, of hiring the experts that
are needed to help get you through the process. There are costs
associated with mitigation. And there are costs associated with
the time that it takes to ultimately see your project through
fruition on the farm as a result of the permit.
I would also say you have the uncertainty that is
associated with compliance and the threat of potential civil or
criminal penalties.
Mr. Burlison. I understand the cost can be anywhere from
$10,900 to $2.4 million.
Mr. Hawkins. That is a lot of money, Congressman.
Mr. Burlison. Right. The impact of a Missouri farming
family--what are the average size of the family farms or the
farming operations in Missouri?
Mr. Hawkins. Yes. So, the average size farm in Missouri
would be about 300 acres. But, again, Missouri, we kind of
represent the diversity of American agriculture. We do
everything but really citrus and sugar.
Mr. Burlison. Yes.
Mr. Hawkins. But we truly are a melting pot when it comes
to just diversity of production.
Mr. Burlison. So, I would imagine, I mean, that would be a
huge impact to any family farm.
Thank you. My time has expired.
Mr. Duarte [presiding]. Thank you, Mr. Burlison.
Mrs. Sykes, I will recognize you for 5 minutes.
Mrs. Sykes. Thank you, Mr. Chair.
Thank you to the panel for your presentations today.
I want to bring our conversation back to water quality,
because essentially that is what we are talking about. And I am
going to direct this first question to you, Mr. Owen.
We just talked a bit about an issue in my district where
people who can access well water--I know that is not
necessarily our jurisdiction today--but the impact that it has
on not accessing clean, potable water and what that means to
your life and to a community's quality of life.
So, could you talk just a little bit or provide some
suggestions on how we can best add to clean water protections,
somewhat to my colleague's conversation of what specifically
could we do? What are the specific suggestions you have for us
as we contemplate this rule and future legislation?
Mr. Owen. I think the first suggestion is that, in order to
protect clean water, we have to protect our rivers, our lakes,
our streams, but also our smaller wetlands, our smaller
streams, even the ephemeral ones. We cannot get the clean water
that we want without protecting that natural infrastructure.
That is a starting point. That is a foundation. It is not a
complete answer to the question.
Within that protection, there are a number of things we can
do. I mean, the reality is that a lot of the water pollution
that we have in this country comes from agriculture. In terms
of the density of pollution from a particular area, it is
higher in urban areas. But we have so much agricultural
production, that is so much of our land, that that is where a
lot of water quality impacts come from.
And so, we have to find ways, whether it is through the
kind of incentive programs that were described before, through
regulation of nonpoint source runoff, through increased State
effort. But that is a huge--I mean, particularly for your State
of Ohio, where that is a primary source of pollution in Lake
Erie, that is a huge focus.
I would say the other area where we need to do a tremendous
amount of work is with urban stormwater because, again, that is
a major source of pollution. It is also a potential water
supply, especially in arid areas. And it is a challenging,
difficult issue because it is expensive for cities to deal
with.
So, those are general answers. I would be happy to follow
up with more specifics. But I think that is a starting point.
Mrs. Sykes. Thank you, Mr. Owen.
And I am going to direct my next set of questions to Mr.
Hawkins.
And I know you are getting a lot of attention today, but it
goes to show how important agriculture is. It is the number one
industry in Ohio, and we rely upon you, and we thank all of the
members, all of your members of the Farm Bureau across the
country, for what you do to feed us and allow us to live.
But to the point of what Mr. Owen said, a lot of pollution
is attributed to agriculture. And a couple years ago, we had
some algal blooms in Lake Erie which prohibited access to
drinking water, again, impacting the quality of life of people
who rely upon the beautiful Great Lakes for drinking water.
So, we are going to deal with the farm bill. I know that is
not this committee, but everyone is still talking about the
farm bill. And I am sure we are going to hear conversations
around agriculture, runoff, what you all are or are not doing
to help us keep our clean water clean.
So, I am asking you, what is your understanding of the
normal farming activities exemption to the Clean Water Act, and
do you agree that these activities are generally exempt from
Clean Water Act permitting regardless of their jurisdiction of
this rule?
Mr. Hawkins. OK. Thank you, Congresswoman. And, again,
thank you. I appreciate Ohio Farm Bureau a great deal. They
have been mentors to me through the years in my Farm Bureau
career. And so, just a couple of thoughts initially.
One, nonpoint sources are excluded, obviously, from the
Clean Water Act. And as I think specifically to the issue that
you raised in Ohio, I think it is a prime example of
cooperative federalism at work when the agriculture community
worked with the State legislature and regulators to come up
with a solution and put tools in the toolbox for Ohio farmers
that worked. It didn't necessitate a heavy hand out of
Washington, DC, to solve a problem. It was Ohioans coming
together for an Ohio-focused solution.
And that is what I have learned from my colleagues as we
have internal conversations within Farm Bureau, learning from
other States about what works as we put tools in the toolbox
for farmers.
And I would just implore this committee--I appreciate you
recognizing that you all are going to be involved in writing a
farm bill this year, and there will be a lot of discussion
about the conservation title. And I would implore you all to
focus on working lands and make sure that farmers and ranchers
have the tools that they need.
Because guess what? If you make the programs workable, if
you cut redtape, my fellow farmers and ranchers will raise
their hand and walk through the door of their USDA office and
say they want to put more conservation on the ground.
So, I would encourage you, keep that in mind. Make these
programs workable for those who are working hard to produce
food, fiber, and fuel.
Mr. Rouzer [presiding]. The gentlelady's time has expired.
Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman.
Ms. Bodine, with my Baptist upbringing, I just got to add
an amen to that opening statement. Thank you.
There are multiple new terms used in the Biden rule, such
as ``regional,'' ``shallow surface,'' ``significant effects,''
and ``shallow aquifer management,'' that appear throughout this
remarkably long preamble. And it is in a variety of contexts.
Now, what do these new terms do? And do they simplify or
clarify or expedite the WOTUS process, or do they add more
confusion to it?
Ms. Bodine. Thank you for that question.
The terms, as you point out, are vague. Most of the
explanation is in the preamble, and everything is case by case.
It depends on the individual Corps field staff person, the
individual EPA inspector. That is the person who gets to decide
what the rule means.
And the landowner is at their mercy to a great extent
because of the fact that if there is a project that wants to go
forward, people want clarity. They want certainty. And at some
times, they need to actually put themselves under the
jurisdiction of the Corps just to get a jurisdictional
determination in a timely way. So, it gives enormous authority
to the field staff on a case-by-case basis.
Mr. Collins. Thank you.
Ms. Huey, I am also a small businessman. My wife and I, 30
years ago, we started our own business and grew it. And so, I
know firsthand how conducting business in an environment where
regulations change every 2 to 4 years make it hard to stay in
business. Matter of fact, I have seen a lot of small businesses
go out of business due to rules and regs imposed on them.
Either that, or they have to sell out to someone else to
continue for their employees to have a job.
And like you, Mr. Hawkins, I love what I do. And I have
often said out there in the past several years that my kids
don't have the same opportunity that I had, and that is to
start and grow a business. And the reason is, in most cases, it
is because there is some overreach by the Federal Government,
by some bureaucrat out there making regulations, and who, in
most cases, doesn't have a clue what they are regulating.
So, Ms. Huey, I would like for you, if you could, speak on
the final rule and the uncertainty that it contains and just
how it is impacting your members, please.
Ms. Huey. It makes it very difficult when I have a
homeowner call me or a potential client call me and want me to
walk a piece of property with them that they bought to build
their dream home, and I see water standing on the property that
I and my colleagues don't know what to do with.
We have to walk back and say: I don't know what I can do
with this. We are going to have to wait. We are going to have
to go through the testing, through the process, and see if you
can even build on this lot. That is for my colleagues all
across the country.
We deal with regulations every day. Every day is a new
challenge in our business. And you have to like challenges. We
are not saying that we don't need regulation in our industry.
We are just saying that we need to work together to come up
with exactly what works for all Americans, for all properties.
Mr. Collins. Thank you.
Thank you, Mr. Chairman. That is all I have, and I yield
back.
Mr. Rouzer. Mr. Huffman is recognized for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman.
There has been a lot of talk about the need for certainty
and reducing litigation. It would be easy to forget, listening
to some of this debate, that before the Obama administration
waded into this difficult, fraught exercise of defining the
waters of the United States, there was incredible uncertainty.
There was incredible conflict and litigation. That is why the
Supreme Court waded in and confused us a little more with their
different standards and tests.
So, I think it is important that we remember that it wasn't
Democratic rulemakings that created this problem with
litigation and uncertainty. It was to some degree the lack of
clarity and the lack of rulemakings, and to some extent, the
inherent challenge of defining something as tricky as waters of
the United States if we are trying to protect water quality
throughout the United States.
It would also be easy to forget, listening to some of this
debate, that the Clean Water Act is about protecting clean
water and that clean water is really, really important. It has
been, in some cases, made into a bit of a bogeyman. It has been
trivialized. It has been ridiculed, almost demonized by some
terms of this debate.
But remember how we got here. We had rivers that would
catch fire, and we couldn't put them out, because, in many
cases, the pollution that had been dumped right into that
river, some of that came from tributaries upstream.
We had Lake Erie and other water bodies that were written
off as dead, as unable to support fish life, because of all the
pollution. Again, not because of stuff discharged directly into
Lake Erie, but things that were discharged further upstream
into tributaries and other water bodies that connect.
So, clean water matters. And this Clean Water Act is
important. People throughout this country deserve clean water,
and they value clean water.
And I think they are, frankly, if they are paying
attention, pretty alarmed when you see proposals that would
roll back protection for 70 percent of the rivers, 50 percent
of the wetlands that have had that protection for the last 50
years. That is extreme. That is troubling. And so, that is an
important part of our context here.
Mr. Owen, I appreciate your discussion of the importance of
protecting headwater streams in unconnected wetlands,
intermittent, ephemeral water bodies, all of which would
dramatically lose protection under the Trump administration's
``dirty water rule''. And you discussed also how this
contributes to toxic, costly algal blooms and other problems in
downstream waters.
I appreciate the fact that you drew our attention to the
Clean Water Act's opening section, which states that water
quality regulation must provide for the protection and
propagation of fish, shellfish, and wildlife, as well as
provide for recreation. This wasn't just about navigation.
Navigable waters was the jurisdictional hook that got us into
the important challenge of protecting water quality throughout
the United States.
So, could you talk a little bit more about why it is
important that the Clean Water Act exists to support popular
human activities like hunting and bird-watching, fish and
wildlife values, and why that should matter to all of us?
Mr. Owen. I think I would mostly say amen to the question.
I think these things are obviously tremendously important.
Water is--we all drink it. We all recreate with it. The public
overwhelmingly wants stronger water quality protection.
And, in fact, to bring this back to what we have been
discussing before, I would highlight one other thing, which is
that, when we talk about constructing things in places that are
wetlands or are ephemeral streams, we are talking about
construction in places that flood. We are talking about
building homes in places that flood.
And in addition to the water quality impacts of it, it is
also a dangerous thing to do and a costly thing to do, because
the Federal Government may ultimately be on the hook for the
flood insurance payments.
And so, I think it is important to keep that piece of the
context here as well, that the Clean Water Act is not only
protecting our water quality, it is also protecting us from
making costly mistakes of building in places that are prone to
flooding.
Mr. Huffman. What about the protection of groundwater? In
California, everybody knows we are very concerned about the
availability of water. In some years, 40 percent of our water
supply can come from groundwater. Entire communities have lost
groundwater due to pollution. And that didn't come from--it did
come from groundwater plumes, but eventually, that pollution
traces back to surface water pollution.
Why is it important that everyone care about groundwater
when we talk about this issue?
Mr. Owen. Because a lot--I see the time is almost up--
because a lot of groundwater starts as surface water. So, what
happens at the surface gets into the ground and gets into our
drinking water.
Mr. Huffman. Thank you. I yield back.
Mr. Rouzer. Mr. Van Orden, you are recognized.
Mr. Van Orden. Thank you, Mr. Chairman.
It was brought up during our testimony today that,
unfortunately, some of the pollution that is in water comes
from agriculture. I would like to remind everyone here that all
food also comes from agriculture.
I am not going to mince words. This bill would be more
aptly named ``Woke us,'' as it is mostly confusing, partially
nonsensical, not based in science, and will cause many more
negative, unintended consequences than I believe the Biden
administration has contemplated.
Under this new ``Woke us'' rule, about 85 percent of the
waterways in my congressional district will be subject to EPA
oversight. In some places in my district, it would actually
harm the environment, and I am going to tell you exactly why.
Several of my farmers are pioneers in environmental
stewardship. What they started to do is they were collecting
the runoff from agriculture in these ponds that they dug. And
so, what happens is the phosphates and nitrates settle to the
bottom. Then they are able to recycle the water, and they can
also recycle some of these nitrates and phosphates, which
lowers your input cost, which is killing everybody. So, they
partially recycle that, and again, it lowers the cost for
everybody across the board.
So, if ``Woke us'' goes into effect, these farmers will
stop these practices, as their ponds will become navigable
waterways and subject to draconian Federal regulations. And
what this means is that all of these ag byproducts will
actually enter the watersheds and wind up in the Mississippi
River. That is the exact opposite intended consequence of this
foolish regulation.
We are concerned with the disappearance of small family
farms who are just getting by due to skyrocketing costs, yet
you appear to be advocating--this rule appears to be advocating
for adding additional costs to their operations.
So, Mr. Owen, you said that you have been to farms before.
I have got boots in my office that have manure on them from a
small family farm. And my first question to you is, when is the
last time you stepped in manure on a small family farm?
Mr. Owen. This isn't the last time, but even though I grew
up in the suburbs, we were the one house in the Boston suburb
that got regular deliveries of horse manure for my mother's
garden.
Mr. Van Orden. All right.
Mr. Owen. So, I grew up not only stepping in that manure,
but offending the entire neighborhood with the smell.
Mr. Van Orden. Great. And how old are you now, Mr. Owen?
Mr. Owen. What is that?
Mr. Van Orden. How old are you now?
Mr. Owen. I am 48 now.
Mr. Van Orden. How old were you then?
Mr. Owen. That was when I was a kid. More recently----
Mr. Van Orden [interrupting]. OK. So, 30 to 40 years ago is
the answer to that question.
Mr. Owen. No, it is more recent than that.
Mr. Van Orden. Mr. Owen?
Mr. Owen. But next question.
Mr. Van Orden. So, here is your next question. How many
family farmers, township chairmen, and county board supervisors
did you personally speak to about the economic effect that this
is going to have on their villages, their townships, and their
farms? How many did you personally speak to before you prepared
yourself to come here to testify about the awesome economic and
environmental effect of this foolish rule?
Mr. Owen. In preparing this testimony, I did not speak to
anyone.
Mr. Van Orden. OK. That is my concern, Mr. Owen, is that we
have a bunch of nameless bureaucrats who are trying to apply a
4,000-mile screwdriver to fix a problem that they can't even
see.
So, when we have people that are deciding the fates of our
family farmers without firsthand knowledge, they are actually
degrading the ability of them to produce food for the world.
And that is shameful. And we have got to stop it.
So, I am going to encourage you and the rest of your folks
to get out there and talk to these farmers. Go to the township
meetings. Ask them how it is going to affect them. It is going
to destroy family farming. And I am not willing to stand by and
let that happen.
With that, I yield back.
Mr. Rouzer. The gentleman yields.
Mr. Owen. May I respond to that, or is----
Mr. Rouzer [interrupting]. The gentleman has yielded back.
Mr. Owen. OK.
Mr. Rouzer. Ms. Brownley is recognized.
Ms. Brownley. Thank you, Mr. Chairman.
Mr. Owen, would you like to respond to the last comment?
Mr. Owen. I would tell you first off that I have spent, in
multiple research projects, lots of time talking to farmers
about the impacts of regulatory programs. I did not talk to
them in preparing this specific testimony.
The other thing that I would say is that I have also spent
many years interviewing the agency staff who interview this and
other programs. They generally are in field offices, so, they
are closer to the areas. They typically are people who grew up
in those specific areas.
And for them, what they have told me is, having a sense of
understanding of the community, being able to get out and see
farms, or since that is not usually who they are regulating,
see development sites, is really important to them as well.
And so, I think it is important to give the bureaucrats
some credit here for the efforts that they have made to try to
understand the people that they are regulating.
Ms. Brownley. Mr. Owen, my question to you is, you
mentioned that the requirement to obtain a clean water permit
does not necessarily prohibit development and that the property
owners have use of compensatory mitigation. Could you elaborate
on this option?
Mr. Owen. Yes. So, if an area is declared to be
jurisdictional, that does not mean it is off limits for
development. The Army Corps will typically ask the landowner:
Can you avoid development in this area? And if they can, then
they will prefer that. And if they can minimize impacts, they
are, again, asked to do that.
But if neither of those things are possible and the project
still wants to go forward, you can get a permit, and coupled
with that permit is a requirement to purchase compensatory
mitigation, which basically means restoring environmental
conditions in some other time or place.
If it is done well, it can be a win-win, because you can
get development where you want and you can also get protection
in places where it is desired. And, in fact, a number of
counties in California have done proactive planning to try to
streamline approval processes and make this possible. They are
good examples of how that can be done well.
One other thing I would say to that point is, in the
written testimony there are some concerns about the cost of
compensatory mitigation. Part of the reason for that cost is
because the compensatory mitigation industry has had so much
uncertainty because of uncertainty about whether regulatory
restrictions would apply. If that industry has more stability,
it will likely have more investment, and in the long term, that
should bring costs down.
Ms. Brownley. Very good.
So, in reference to certainty, and we have talked--and
uncertainty, as we have talked a lot about in this hearing so
far--and Mr. Garamendi sort of alluded to this in his line of
questioning. But if the Congressional Review Act proposed by
the chairman passes that disapproves the waters of the United
States rule, what would be the practical effect? And do you
think it would repeal and create regulatory certainty or more
uncertainty?
Mr. Owen. The short-term effect would be probably more
uncertainty, although I think we are even uncertain about the
uncertainty at this point.
Ms. Brownley. Yes.
Mr. Owen. And the reason for that is that, right now, the
regulatory regime that is in place because the implementation
of the Trump rule was enjoined is very similar to what this
particular rule would create. So, in the short term, it would
not really change much of anything at all.
In the long term, the Congressional Review Act prohibits a
rule being adopted that is substantially the same, which is a
phrase that courts really have not interpreted very much. We
don't have much of a sense of what that means.
So, that means the long-term consequences for future
rulemaking and for responses to future court decisions would be
really hard to predict. So, I don't think that is a path to
certainty.
Ms. Brownley. Thank you.
And I just have a little bit of time left. But you also
noted in your testimony that the Trump administration's 2020
failed to use proper economic analysis. Can you elaborate on
that a bit?
Mr. Owen. Yes. So, to properly analyze the value of Clean
Water Act protections, you need to look not just at the impacts
upon regulated industries--and those exist, they are real--but
also at the benefits that people get both through avoided costs
of treating water, through avoided need to provide new water
supplies, through avoided flood impacts, but also through
things like hunting, fishing. You need to quantify those
benefits as well and weigh them against the costs.
And the Trump administration's approach was essentially to
do an arm wave at the benefits and say either we can't
calculate them or we don't think they exist. And the upshot of
that was that you had a very, very imbalanced analysis.
Ms. Brownley. Thank you so much.
And, Mr. Chairman, I yield back.
Mr. Rouzer. I thank the gentlelady.
Mr. LaMalfa.
Mr. LaMalfa. Thank you, Mr. Chairman.
I will tell you one thing. If Congress was writing this
legislation now the way there are folks trying to interpret--
Army Corps of Engineers, EPA--there is no chance it would pass
Congress, certainly back in the 1970s nor now, because people
would be calling for the heads of the Members of Congress
voting for such a far-reaching, overreaching piece of
legislation.
So, here we are. Something that was passed in the 1970s
that has been interpreted and reinterpreted more recently in
the Obama era under WOTUS went very far-reaching to mean that
human-built drainage ditches and agricultural irrigation
ditches are now under the scope.
We see areas that want to regulate water running off your
roof into a rain barrel, saying you can't keep that rain barrel
water without some kind of permit because it belongs to someone
else.
It seems the scope has expanded so much that no drop of
water anywhere doesn't belong to the United States.
So, let's talk about home building for just a little bit.
And I also want to touch, too, that the Army Corps is holding
up a project in my district for 3 years because it is about a
half a mile from a river.
So, hearing Mr. Owen mention that one of the test questions
is: Can you avoid building this building, building this
project? Can you avoid it? Well, no. I own this piece of land
right here. Private property. I want to build my building here,
not have somebody ask me if I can avoid building it. I need it
to store my equipment in or build whatever it is.
So, I want to come to Ms. Huey.
Ms. Huey, you mentioned in your testimony, there are
basically two tests, I think as you put it, when you go to
build a house or housing project. One was stormwater runoff.
What was the second one? There were two pieces in line before
we even get to water quality.
Ms. Huey. Oh, I am sorry. You are talking about the fill
material?
Mr. LaMalfa. Pardon?
Ms. Huey. Fill material.
Mr. LaMalfa. Is that it? OK. All right. So, there were two
pieces you would have to certify before you can get going on a
project there on fill material, right?
Mr. Owen. I think it was that you were subject to 404 and
then also stormwater controls.
Ms. Huey. Yes. Thank you.
Mr. LaMalfa. OK. 404. All right. Thank you for that.
So, you have already got a big lift in order to build any
kind of housing project with those.
What are the timelines to get through those two types of
permits to build housing?
Ms. Huey. In my area in Alabama, it takes several years to
get through those processes.
Mr. LaMalfa. Several years?
Ms. Huey. Yes. And then there are even more layers after
that.
Once the development starts, we have--in Alabama, it is the
Alabama Department of Environmental Management that we have to
go through, and then the municipalities that come through every
month and make a list of things that we need to correct, from
silt fence to, if we've got a pile of dirt that we have moved,
that it needs to be seeded and hayed, and if it is not--if we
don't get it taken care of in a couple of days or a week or so.
And that is when we have three detention ponds on a piece
of property as well. Those detention ponds, for a subdivision I
was in about 4 or 5 years ago, let the water out in an 18-inch
pipe. And now in a development that I am somewhat involved in,
we have to hold the water on the property for 24 hours,
stormwater, before it is released.
Mr. LaMalfa. And so, what is the process of having to build
the retaining ponds? Do you have to get permits for that?
Because I know farmers and ranchers do, and sometimes they
can't obtain those because you are somehow changing the
watershed. How is that for you?
Ms. Huey. Right. We used to fill out the forms to do that.
Now we have to hire an environmental consultant, and that could
be $5,000 to $10,000. The detention pond itself costs about
$100,000 on the project that I am working on now.
Mr. LaMalfa. To make a retention pond in order to do what
they want to do so no silt gets away?
Ms. Huey. Yes, sir.
Mr. LaMalfa. Because this is primarily about silt. When we
are talking about pollutants, you seem to have plenty of
regulations on how to use ag chemicals, farm chemicals, other
things that are in a factory setting that are--someone is
regulating all of that effluent of what is coming off there.
So, when I hear talk of that 50 percent of it is
agriculture, what we are really talking about is silt. And so,
if you go to any river upstream of agriculture after a heavy
amount of rain, you see an awful lot of brown water coming down
the rivers that isn't the fault of a farmer somewhere.
And also, you see that up in my district in northern
California, if they are successful with their extremism of
tearing out some hydroelectric dams we need for electricity, we
are going to release at least 20 million cubic yards of silt
down the river.
Now, silt is bad for gold mining and all that sort of
thing, bad for fish or turbidity, except we had a high-ranking
official at a recent hearing say, well, the river is very
starved for silt.
So, I am wondering what the hell anybody is supposed to do,
how any farmer, how any homeowner is supposed to figure out how
to navigate this when it takes so long to get a permit to build
a pond or anything else. Three years. Three years for this
farmer in my district who wanted to build a building that he
can't avoid building.
I yield back, Mr. Chairman.
Mr. Rouzer. The gentleman's time has expired.
Mr. Stanton, you are recognized.
Mr. Stanton. Thank you very much, Mr. Chairman.
Water is a precious resource. It must be protected. In no
place does water matter more than in my home State of Arizona;
3.2 million people in Arizona receive their drinking water from
systems that rely at least in part on intermittent, ephemeral,
or headwater streams.
As we grapple with the impacts of climate change and the
worst drought in 1,200 years, safeguarding these waters is top
of mind for many Arizonans.
Across the country, water bodies vary from State and region
to region, and so, how waters of the United States is defined
to account for these differences is very, very important.
In Arizona, more than 90 percent of our stream-miles are
ephemeral, meaning they only flow during heavy rains. While
these streams flow for only a brief period of time, they play a
very key role in the arid Southwest, protecting water quality,
recharging our groundwater, and carrying floodwaters and
sediment flows to protect property.
Mr. Owen, how does the rule account for regional
differences in areas like in the arid Southwest that have high
concentrations of ephemeral streams?
Mr. Owen. I would say the most important way it accounts
for them is by extending protection to not all of those
ephemeral streams, but the streams that have significant
connections to water quality in larger waterways. And in a
landscape like Arizona, that is going to be many of those
waterways.
Mr. Stanton. How does the treatment of ephemeral streams
under this rule compare to those issued during the Obama and
Trump administrations?
Mr. Owen. Let me step back a little bit further.
I think you often hear that we have been having dueling
rulemakings and huge shifts. I disagree with that perspective
to some degree. I think that the Trump administration rule was
in fact a massive shift.
Other than that, we have had a lot of continuity in terms
of the scope of jurisdiction, really dating back, not just to
1986, but to 1975.
So, the Biden administration rule is, I think, not that
different from what was done under the Obama administration
before or after 2015, but it is also very similar to what was
done under the W. Bush administration, the Reagan
administration, the first Bush administration, and the Carter
administration, and towards the end of the Ford administration.
So, there is a lot of continuity there. And the Trump rule, for
a couple years, was the outlier.
Mr. Stanton. Thank you.
I have a question for Mr. Williams.
As you heard from previous testimony by Mr. Owen, these
ephemeral streams were not protected under the previous rule
advanced by the Trump administration, and there are challenges
in some States to adding their own protections.
So, where do you think we can find common ground on this
issue to ensure your industry has clarity and certainty for the
work you do, yet broader protections for these important
streams?
Mr. Williams. We are certainly in favor of broader clarity.
We have been searching for that. I have been working in the
wetlands industry for 23 years now, and I have been out in the
field with some of our project managers. I have had great
experience in that, and I have a hard time deciding what is
ephemeral and what is relatively permanent water. We have been
looking for kind of a bright line in the sand of what that
could be.
Our industry is in favor of clean water. We need the
aggregates products to clean water. Sand is part of
biofiltration and water treatment. The ephemeral channels are a
pollution issue, whether nutrients get into that channel or
not, and this WOTUS rule is more of a construction issue. It
is, where are we allowed to excavate or fill ephemeral
channels? And that is more construction than it is any
pollutant issue that we are concerned of.
Mr. Stanton. The same question for Mr. Owen.
Common ground. Ensuring the industry has clarity and
certainty, yet provide for broader protections for streams as I
have described in Arizona.
Mr. Owen. So, I think the honest answer is, this is going
to be hard. And it is going to be hard because, no matter what
standard we adopt--and this was true of the Trump rule as well
as the more recent rule--drawing lines between water and land
can be tricky where you have seasonal features. And it is
really particularly hard in a place like Arizona where those
features can go from dry for very long periods of time to
torrential amounts of water moving through.
And so, I think we all agree that certainty would be really
desirable. I think in this particular setting, the only ways to
get the level of certainty that industry is hoping for--and
reasonably hoping for--but the only ways to get that would be
to say, essentially, everything is jurisdictional or nothing
is.
In between, you are going to have hard, long-drawn
problems. And I think the best way to approach those is to say:
Well, what are we trying to accomplish here? We are trying to
protect water quality and honor the text of the statute. And if
that does not produce perfect certainty or even high levels of
certainty, that may just be something we have to live with,
unfortunately.
Mr. Stanton. Thank you. I will submit my other questions in
writing. I will yield back.
Mr. Rouzer. The gentleman yields back.
Mr. Duarte.
Mr. Duarte. Hello, and thank you.
I am a farmer. We talked a lot about case-by-case analysis
of Clean Water Act delineations, determinations. This is one
time I am very thankful to be the presenter right before lunch,
because we all should look at my case very acutely and reflect
upon our food system here in America.
I planted wheat in a wheat field in 2011 that had been
planted to wheat many, many times before and had wheat base
acreage by the FSA determined across the entire property, 450
acres. Across the property were several streams that we did not
farm for practical reasons as well as--just for practical
reasons alone, you don't farm streams. You can't get crop out
of them.
But it also had vernal pools, the largest of which wasn't
an acre, the smallest of which was 16 square feet. All of them
were determined to have been jurisdictional wetlands under
WOTUS. These had all been farmed through the section 404 permit
process. The compromise made was clearly stated that plowing
shall never be a discharge, and soil shall never be a
pollutant.
But nonetheless, my family and I were prosecuted robustly
by the Army Corps of Engineers and the Department of Justice.
The American Farm Bureau literally put up the Duarte defense
account. I believe I recall meeting Ms. Bodine somewhere in the
process here in the Capitol. And it became very much a flash
point for American farmers and Clean Water Act jurisdictions.
At the end of the day, having tilled 4 to 7 inches deep,
wetlands, features as small as 16 square feet, no larger than
an acre, that had been planted many times before, I had the
Department of Justice threatening me and suggesting to a judge,
Federal judge, that my family be fined $28 to $40 million in
penalties and restoration and mitigation costs.
The Obama rule, when it came out, the Farm Bureau took a
look at it and started analyzing it and mapping it nationwide.
Some States were 95 percent jurisdictional wetlands of their
total surface area under the Obama WOTUS. Now we are talking
about case-by-case analysis by field agents.
Well, Mr. Hawkins mentioned that he works for the FSA, the
USDA, the NRCS, many local agencies that are fully staffed
within his county to help guide and comply with environmental
and farming regulations as well as improve practices and
enhance conservation on his farm and throughout his county.
Throughout Missouri, for that matter.
In my case--we mentioned, Mr. Owen, your vision of an Army
Corps of Engineers local field agent, having grown up in the
area and being familiar with what was going on.
Well, my field agent grew up in southern California. He had
a five-county territory that he was set to serve. He thought I
was tilling the ground 30 inches deep, by his own deposition.
That turned out to be in fact 4 to 7 inches deep. When I asked
him to come to the field and take a look, he didn't have time
and didn't respond.
When they sent me a cease and desist order the following
February, we requested a hearing and were kicked up to
enforcement. We then went to the Pacific Legal Foundation, who
saw the cease and desist order as a fairly dire offense to our
Fifth Amendment due process rights, since we simply wanted to
harvest our wheat and couldn't get direction as to whether that
would be permitted or not under the cease and desist order, and
we were supported in the Federal court until a retaliatory case
was filed against us for destruction of wetlands.
So, I recite that, and I just want to make sure that we are
on record that this is anything but a small nuisance or a small
threat to American farmers.
Mr. Hawkins, I will yield back to you for what little
balance of time I have left and invite you to give comments. If
you don't, then Ms. Bodine may.
Mr. Hawkins. Well, Congressman, thank you for your story,
your leadership through the years, your example, that,
unfortunately, is an illustration of what we have seen across
the country, including the example I shared earlier.
Right now we have a group of farmers who are working and
have been working for almost 20 years in Missouri to save soil
from being sloughed off along their creeks. They truly just
want to save soil and improve water quality.
We are undergoing a pilot project now and the regulatory
officials say it may by 2025 before they can reach a decision
on how to proceed with said pilot project.
Meanwhile, we are losing soil, and farmers just want to use
rock to secure those banks and use a commonsense, affordable
solution that they believe should be workable. That is just
another example.
And I guess to your point, Congressman, I would just say,
what you described illustrates and begs the question for those
who are going to follow us of whether they want to come home to
the farm or what you have experienced may be the deciding
factor for mom and dad, or grandma and grandpa to decide to
exit the business altogether.
Mr. Duarte. Thank you.
Mr. Rouzer. The gentleman's time has expired.
The gentleman, Mr. Carter, is recognized.
Mr. Carter of Louisiana. Thank you very much.
Mr. Owen, in Louisiana one of the biggest challenges we
face is in our coastal restoration. Our State has the highest
rate of wetland loss in the country, with the State accounting
for nearly 80 percent of the Nation's total coastal wetland
loss.
To that end, officials across the State are working with
stakeholders and Federal agencies to consider diversion
projects that may help restore our coasts.
The problem is that the seafood industry says that these
projects will hurt the fish and wildlife and the base of the
Mississippi Delta.
What steps might you recommend to be considered when
weighing the needs of our coast and our bustling fishing
industry?
Mr. Owen. So, I don't want to get too deep into the weeds
because the answers to any question like this are going to be
specific to a particular landscape. But based on what I know of
Louisiana, I would suggest a couple of things.
First, I would suggest that Louisiana is an excellent case
study in the importance of the subject we are talking about
today. And that is both because of the amount of pollution that
comes down the Mississippi River to Louisiana from other
States, much of which could be contained more effectively with
better protection of source water.
So, returning to our theme today, I think Louisiana has
suffered more than probably any other State from the Clean
Water Act not going as far as it needs to, not protecting as
much.
The second piece is on your specific question of how to
balance the needs of the shrimping industry and the fishing
industry with the desire to restore wetlands.
Again, to the extent that you can limit other strains on
those wetlands, which could include things like oil and gas
activities that are affecting those wetlands, causing dredge
and fill, again section 404 of the Clean Water Act provides a
protective mechanism.
That doesn't get at the heart of your question, which is:
How do you balance restoration with the needs of the fishing
communities? And the most specific answer I think is that I
think you try to find common ground, reduce strains that affect
both, and then try to do what you can to balance.
Mr. Carter of Louisiana. So, you mean you don't have a
magic wand for it?
Mr. Owen. I do not have a magic wand for you, no.
Mr. Carter of Louisiana. You don't have a magic wand. I
didn't think you would.
Do you see the WOTUS rules as helping facilitate to trend
our State action and protect our water bodies?
Mr. Owen. Yes, absolutely, because protecting wetlands from
fill is very important, especially to a place like Louisiana
where the wetlands are so important to the ecology. And then
again also because this gives you protection that you cannot
provide on your own from pollution issues coming at you from
upstream States.
Mr. Carter of Louisiana. Critically important.
Mr. Hawkins, as the existential threat of climate change
grows, one of the results is increased risk of flooding. Baton
Rouge, in my district, suffered one of the worst floods in
history in 2016. The community was devastated and needed help
in rebuilding.
Unfortunately, instead of bringing peace, the National
Flood Insurance Program has only served to keep too many of my
constituents up at night worrying.
As a member of the Farm Bureau, would you please explain
how the NFIP has hurt your industry?
Mr. Hawkins. Well, thank you for the question, Congressman.
And honestly, to do it justice, I will supply a response in
writing if you will so that maybe we can get into those issues.
But I would just say, historically, Missouri farmers,
ranchers, landowners, certainly we sympathize and empathize
with our fellow farmers, ranchers, and the residents of
Louisiana.
We experience flooding along the Missouri and Mississippi
Rivers it seems like every few years. And so, certainly floods
present not just challenges at the time but ongoing challenges
from a recovery standpoint, particularly for us in agriculture
when we repair levees and try to restore farmland to its pre-
flood condition.
So, the detailed response we will get back to you with you
and your staff. Thank you.
Mr. Carter of Louisiana. Thank you very much.
And, Mr. Owen, could you likewise give a detailed response
to the question that I referred to you as well?
Mr. Owen. Yes, but likewise I would also prefer to do so in
writing rather than spontaneously.
Mr. Carter of Louisiana. That is what I was referring to,
would you likewise do it in writing?
I yield back. Thank you.
Mr. Rouzer. The gentlemen yields back.
I now recognize Mr. Owens for 5 minutes.
Representative Owens of Utah. Thank you, Mr. Chair. I would
like to yield my time to Mr. Duarte.
Mr. Duarte. Thank you, Congressman.
So, another topic. The Army Corps of Engineers in my
district, Merced County is included, just had a river levee
break and flood out a grammar school, an elementary school, in
a town of many farm workers and lower income residents for the
second time in 5 years.
Mr. Hawkins, is the Army Corps of Engineers, in your
opinion, competent in their primary responsibilities of flood
control, levee maintenance? And are they prepared and staffed
to take on the additional responsibilities of regulating every
farm in America down to its last mud puddle or, in your case,
riprap installation along a drainage?
Mr. Hawkins. Congressman, thank you for the question.
I would say within Missouri, we have had a longstanding,
let's say, open conversation with the Army Corps of Engineers,
from the local issue I raised about just the movement of gravel
to secure and slow soil erosion to how the Missouri River is
managed.
Unfortunately, with what we have seen in Missouri--and
Chairman Graves knows this all too well--we have seen the
Endangered Species Act essentially used as the trump card to
help dictate to the Army Corps of Engineers its management
decisions for systems like the Missouri River.
So, that has long been the frustration for our farmers and
landowners, is that they feel like the ESA is used as the trump
card and the species are put above people.
Mr. Duarte. Thank you very much.
We had the exact same situation. We had rivers and ditches
that needed to be drained. The irrigation districts locally
were very willing to put the resources into providing the
backhoe and the excavator and draining them. The Army Corps
couldn't issue a permit because Fish and Wildlife wouldn't
permit the permit. It went back and forth for years.
Meanwhile, these families are flooded, they are throwing
their couches, their belongings, their clothing into dumpsters
parked along the street, they are being hauled away to the city
dump. FEMA is out there making very meager offerings of support
to help these families reestablish and balance their books and
get on with their lives.
They will be stripping their drywall, their carpets, and
rebuilding significant amounts of their houses simply because
Fish and Wildlife and the Army Corps of Engineers couldn't get
it together to perform their core responsibilities and
functions.
So, thank you. There is more similar than different.
Ms. Bodine, I know you have been at these types of issues
for quite a while. We are sitting here on the precipice of not
only a Supreme Court WOTUS decision coming down that should
give us clarity on what is the significant nexus that has been,
in my opinion, manipulated by the agencies, but also Chevron
deference cases coming down this year.
And I would like you to walk us through what we can expect
and how some clarity may come in this year's Supreme Court
sessions.
Ms. Bodine. Thank you, Congressman.
So, I actually reread the oral argument from the second
case, I think, yesterday. The issue presented to the Court was
whether or not there was a significant nexus to a stream that
was actually north of the Sacketts' property, in fact, across
the road from the Sacketts' property.
Mr. Duarte. It was an adjacency issue, but yes.
Ms. Bodine. But it was adjacent not to the lake but to a
stream, which was actually a ditch that flowed to a stream.
Mr. Duarte. Yes.
Ms. Bodine. But in that case the Justices were troubled,
and this includes Justice Sotomayor and Justice Kagan, by the
``significant nexus'' test.
The Deputy Solicitor General presented an argument that the
``significant nexus'' test was really about hydrology, which is
very disingenuous because, as I spoke earlier and in my written
testimony, it is much, much broader than that, includes these
biological connections.
So, I actually would suggest and perhaps anticipate that
the Justices will not uphold a ``significant nexus'' test. The
question then is what else, and I think that was questions
other people have raised. And that I don't know. But I thought
that they were deeply troubled by the ``significant nexus''
test in that case.
Mr. Duarte. So, in this window of time when we have a new
rule put before us that may not be supported by the Supreme
Court, the most efficient thing right now would be to exercise
our responsibilities under the Congressional Review Act, set
this aside, and wait for clarity to come down from the Supreme
Court.
I also would like to ask, and maybe in a future session I
will, can we make a deal anymore? In 1972, we sat down with the
agencies on the other side of the aisle, and we created the
Clean Water Act. And we have serious limitations on what those
authorities were that have been greatly eroded by the agencies.
Will we be able to solve the next problem?
Mr. Rouzer. The gentleman's time has expired.
Mr. Williams is recognized.
Representative Williams of New York. Thank you, Mr.
Chairman.
I am just going to rapid fire a few questions and comments.
And if you could keep your answers brief, it will make sense, I
hope.
Mr. Hawkins, my wife and I also started a farm. We are
members of the New York Farm Bureau. And we live in a beautiful
place that has Skaneateles Lake, one of the cleanest lakes in
the world. In fact, it provides the drinking water for the city
of Syracuse untreated, and it is one of the few in our country
to do so.
It is surrounded by farms and it is surrounded by homes.
And the Farm Bureau in our State has been critical to working
with farmers to implement those things, to keep that water
pure, and it is a great success story. I know those farmers; I
have toured their farms. I have seen the investment that they
have labored under.
I just want to move on, though, to Mr. Williams, no
relation.
You are familiar with the TCLP test? And in a very brief
way, can you describe how you use TCLP in your mines?
Mr. Williams. A TCLP is a toxic characteristic. So, soils
and other potentially hazardous materials are analyzed to see
if they have things like mercury or arsenic or if they have
cyanide or if they are going to affect groundwater in a long-
term situation.
Representative Williams of New York. Right. Passing TCLP is
one of the key features of being able to release water back
into the environment or if it has to undergo further treatment.
I spent a lot of time around acid mine drainage in the
mining industry looking at novel new technologies to treat that
water. And so, that is why I know about TCLP. But thank you for
that explanation, because it is really important.
And, Ms. Bodine, you are an expert regulator and have spent
a career in regulating issues. Based on the testimony today and
of course of your own study and understanding, are you
concerned that the proposed wording of this rule would open the
way for very selective prosecution, for great discretion to be
applied by EPA Administrators on who and when and what to
prosecute? Because, as many of you, in fact all of have you
testified, there is a great deal of uncertainty and vagueness
in the language of the law.
Are you concerned that this rule could open up that kind of
prosecution?
Ms. Bodine. Yes, I am, because it is a case-by-case
determination.
Representative Williams of New York. That is right.
Ms. Bodine. I would point out that the GAO looked at this
issue back in 2004 and found out that there were just vastly
inconsistent interpretations of what was Clean Water Act
jurisdiction by different Corps districts across the country.
The examples I put in my testimony, which included
Congressman Duarte's experience, also showed how individual
field agents can make decisions that would be considered very
extreme, but it is difficult for the landowner to push back.
Representative Williams of New York. Thank you.
Mr. Owen, one question for you.
Have you ever read ``The Gulag Archipelago''? Are you
familiar with that work?
Mr. Owen. I have not read it.
Representative Williams of New York. I recommend it to you.
It is an excellent work. I am just going to read a few quotes
and then I will conclude my time here.
``Nothing is easier than stamping your foot and shouting:
`That's mine!' It is immeasurably harder to proclaim: `You may
live as you please.' '' I think that echoes, really, much of
the testimony here.
It goes on to say, ``Unlimited power in the hands of
limited people always leads to cruelty.'' And I think if you
listen to the farmers and builders and even the mines, you will
hear that concern.
The last quote I will share with you is that, ``You only
have power over people as long as you don't take everything
away from them. But when you've robbed a man of everything,
he's no longer in your power--he's free again.''
And I share that with you because I will close with a quote
often attributed to Joseph Stalin's head of secret police.
``Show me the man and I'll show you the crime.'' And I believe
that is what this rule leads to in the hands of the EPA
regulators.
I yield back, sir.
Mr. Rouzer. The gentleman's time has expired.
Mr. Massie is recognized.
Mr. Massie. I thank Mr. Rouzer for yielding me 5 minutes.
Ms. Bodine, in Kentucky when we build ponds on our farms,
there is this miraculous thing that always happens. You can go
500 feet up on top of your hill and dig a pond and within a few
months there will be frogs in it, there will be snapping
turtles. And these snapping turtles ostensibly should be 500
feet lower. We know frogs can climb.
And then within a year or two, even though you have not
stocked the pond, you end up with fish in it. It is sort of a
miracle of life, and it is one of the reasons I would say
farmers are the greenest people on the planet, because we love
building ponds.
Can you describe--I was actually surprised, but it does
feel like ``Groundhog Day,'' I think we were here 8 years ago
or 10 years ago with the WOTUS ruling that expanded things,
that now there is another attempt to expand. But can you talk
about this effort to increase the jurisdiction of the Federal
Government into isolated waters and how they are using the life
that just generates in these ponds as a nexus?
Ms. Bodine. Yes, thank you. And that is the ``significant
nexus'' test.
As I pointed out earlier, the Supreme Court in 2001 called
into question whether there was jurisdiction over isolated
waters. And since then neither EPA or the Corps have tried to
regulate them.
This rule tries to reinvigorate that authority, using a
``significant nexus'' test which isn't just water pollution,
water quality, it is not even just water, it is literally
moving biota, whether it is larva or plants, from one location,
like your pond, to another, by an animal, and that that is
enough of a nexus to bring a pond into jurisdiction--if it is
not exempt.
Now, there is an exemption for farm ponds built wholly in
uplands, but it would be burden on you to show what was there
before you built your pond. And, again, having to meet that
burden would be quite difficult.
Mr. Massie. Besides fish and frogs, we always get cattails,
and we are not always happy about that.
But life just spreads, like you said. And I think it would
be dangerous to put it on the burden of the landowner to say
that he had a farming nexus to avoid this wildlife nexus that
the Federal Government seems to be trying to create here.
I appreciate you flagging that for us.
Ms. Huey, I am particularly taken by your testimony because
I am in a growing district, there is a lot of need for housing,
particularly affordable housing for people that work. For
instance, in our Amazon facility, we have an Amazon hub in our
district, and the homebuilders, there is literally nowhere they
could put 20 houses together.
Now, you might be able to go find a place where you could
put one or two houses and not run afoul of some Federal nexus,
but there is almost nowhere left in northern Kentucky where you
could put 20 houses without getting into this issue.
Can you talk about--my homebuilders right now are facing
inflation, supply chain issues, and higher interest rates, and
that all goes on the homeowner, whether it is a first home for
somebody who is just trying to get their family started or
whether it is low- or moderate-income housing, multifamily
dwellings.
Can you talk about how these regulations add to the cost of
that type of housing?
Ms. Huey. Certainly I can. And I think you named everything
except workforce. We have workforce challenges.
Mr. Massie. We are working on that. We have got an
internship program.
Ms. Huey. That is wonderful.
So, yes, we are dealing with all that. And it costs more
money because it takes more time to build houses. All the
regulations and the increases during COVID that we experienced,
with fuel surcharges and just the increase in material----
Mr. Massie [interrupting]. How long can it add to a
project?
Ms. Huey. For me, a custom home that I build, it is about
3,200, 3,500 square feet, it would take about 8 months. It is
taking me almost 12 months now. For some first-time home
buyers, the builder in my area, they could build a house in 4
months. It is taking him 8 months.
So, the process takes longer. There is more interest we
have to pay. People have to wait longer, so, they are paying
more rent in their apartments before they can move in if they
are first-time home buyers. And it is just a domino effect all
across the board.
Mr. Massie. One of the issues we run up against, because I
am in a tristate area, is disparate decisions depending on
which Corps you are in or division or which State.
Do you see that as a problem across the Nation, is
disparate application of these laws?
Ms. Huey. Are you talking about with the Corps? Is that
what you said?
Mr. Massie. Well, the WOTUS ruling and the regulations that
trickle from that.
Can she answer? Mr. Chairman, can she answer the question?
Mr. Rouzer. The gentleman's time has expired.
Mr. Massie. Wow, he is quick with the gavel. But I will
take a Republican chairman over a Democratic chairman.
Mr. Rouzer. I treat everybody fairly.
Mr. Ezell.
Mr. Ezell. Thank you very much, Mr. Chairman.
We have heard today how constantly changing, overreaching
regulations confuse hard-working farmers and landowners. It is
also clear that a lack of certainty leads to higher costs and
delays for essential infrastructure projects.
Mr. Williams, the aggregates industry plays an important
role in building our Nation's infrastructure. What happens to
mitigation cost when your business is forced to work with a new
jurisdictional definition?
Mr. Williams. When the jurisdictional definition is
expanded and we have to find other ways to mitigate for a
project, that increases cost and time delays. It is a
multifaceted answer.
If mitigation credits are available nearby, we can purchase
those credits. But frequently there are no longer mitigation
credits in that area, so then we have to come up with other
ways to mitigate for the project.
We have one project in South Carolina where we had to build
our own wetlands there because there were not mitigation
projects available.
Another cause could be that the cost just becomes
astronomical. We had a particular project that we looked at
under the 2020 rule that had about 1,800 feet of jurisdiction
and maybe 2 acres of wetlands under that rule. But under an
expanded rule, it became almost 8,000 feet of streams and about
8 acres of wetlands because of the ditches present on a former
agricultural project. That made the mitigation costs rise from
$780,000 for the first definition to $3.8 million for the
second definition. So, that is over four times more or over $3
million more just for that one project.
Mr. Ezell. Thank you.
I would also like to discuss a key issue before the Supreme
Court, the legality of the ``significant nexus'' test.
How does the ``significant nexus'' test expand Federal
jurisdiction over waters? What will happen if the Supreme Court
limits the scope of significant nexus?
Mr. Williams. When we look at significant nexus, we have a
couple of different definitions already when we were using that
definition 10 years ago and actually under the regime that we
are in now, because the vacated rule from Trump. The
significant nexus said if it affected the physical, chemical,
and biological integrity of the jurisdictional water.
And they have now inserted the word ``or'' instead of the
word ``and''. And so, we have to, if it affects any of those
certain things, we have had a number of moments of testimony
today about how ludicrous that might be for bird feathers or
other things that have been discussed.
So, it has a significant effect on what could be
jurisdictional and how that affects our projects.
Mr. Ezell. Thank you.
Ms. Huey, you mentioned the same ``significant nexus'' test
in your testimony as well. How would the current rule affect
real estate development?
Ms. Huey. It would dramatically affect home building in our
industry.
For the ``significant nexus'' test, I use a simple example
or I thought of a simple example yesterday. I have got a
customer who wanted me to put a fence up for them, they've got
a puppy and wanted to put a fence up.
They have a ditch beside their house, only gets water when
it rains. Do we have to go through the ``significant nexus''
test just to put a fence up? That is what we are looking at
with the test.
Mr. Ezell. Thank you very much.
Mr. Chairman, I yield back.
Mr. Rouzer. The gentleman yields back.
Mrs. Gonzalez-Colon.
Mrs. Gonzalez-Colon. Thank you, Mr. Chairman.
I think all of us are aware, share an awareness of the
importance of protecting our water resources and making sure
that we can have the necessary economic activity without
causing harm to waters that everybody depends on. I am coming
from an island, I can tell you about that.
At the same time, many of us are aware of the challenges
that we are facing when needing to engage in, for example,
recovery of infrastructure and agriculture production after
disasters. That is my own experience, when compliance with
regulations becomes confusing due to the changes in guidance.
This is why it is important that the rules about protecting
waters are stable and consistent and, of course, clearly
focused on the congressional intent of the Clean Water Act.
For my district in Puerto Rico, as an island beset by
tropical storms, it is a constant struggle to make sure that
the necessary work for prevention and mitigation of floods or
shore erosion or for even protection of public-private
properties near bodies of water and for protection of the
drinking water supplies, once approved, can begin and be
completed as planned promptly. And this will change all of
that.
And we have received large amounts of Federal funding for
mitigation, but very often we find that the local entities, who
are a critical part of this effort, like the municipalities,
State agencies, the nonprofit organizations, cannot start to do
the work until permits and authorizations are processed and for
which requirements sometimes aren't clear or change from one
administration to the other one while the work is halfway
through.
And that is our current situation. We have got thousands of
projects, federally funded projects. And this is the case of
Puerto Rico. But the same thing happens in natural disasters
all across the Nation. How is this new ruling going to affect
the cost of all those Federal projects, the permitting process
as well?
So, I think consistency and clarity is critical to make
sure they are implemented well and achieve the intent of the
legislator. And in this case, the waters of the United States
rules, Congress delegated that power in the Army Corps of
Engineers and EPA.
The two agencies are recognized for their high technical
expertise. But even they have to face changes in direction that
can make their own work even harder.
So, in that sense, when I am hearing all the different
stakeholders and how this affects them, and particularly in the
agriculture sector and the homebuilder sector, this is a very
important one for me since all of our States and Territories
find themselves needing more affordable housing.
My question will be: How will this affect directly all the
Federal reconstruction projects that are underway right now?
Ms. Huey. Thank you for the question, Congresswoman.
I had the opportunity to visit Puerto Rico, beautiful
Puerto Rico twice this past year, and I had meetings with the
homebuilders there.
There are extreme challenges with rebuilding. And having to
do the ``significant nexus'' test and everything, it just
delays the process and makes it a lot more expensive.
There is no affordable housing right now, in my opinion,
with all the regulations that are coming down. I want
affordable housing for everyone. I want home ownership, the
American Dream, for everyone. But the affordability is a crisis
in America.
Mrs. Gonzalez-Colon. You visited the island, so, you know
how instability in this rulemaking will impede the development
or redevelopment of safe, affordable housing. In our case, we
don't have any more space to build.
And when I saw Ms. Parker Bodine, you included in your
presentation a map of locations of karst geology, and almost
all Florida, large parts of Missouri and Texas, are included
there.
And what does that mean for farm ponds, isolated wetlands
that are in those areas, because we do have the same situation
in Puerto Rico, and we cannot move them.
So, what is going to be the effect of this ruling in those
karst geology areas? Ms. Bodine?
Ms. Bodine. I am sorry? What will be the effect on . . . ?
Mrs. Gonzalez-Colon. On all areas----
Ms. Bodine [interrupting]. In the karst areas, yes.
Mrs. Gonzalez-Colon [continuing]. For farm ponds.
Ms. Bodine. So, the new rule identifies karst, which karst
geology would mean that there is fractured bedrock and water
flowing through it, that is a basis for creating jurisdiction,
calling something adjacent. So, it would vastly increase the
waters that would be regulated.
Mrs. Gonzalez-Colon. Thank you. I yield back.
Mr. Rouzer. The gentlelady's time has expired.
I will note that any question that you want to provide
additional answers to or supplement your answer to, the record
will be open, and you can do that at that time. I know 5
minutes is a short period with a complicated topic such as
this, and so, I just want to make sure you are aware. Any
question that was asked of you where you want to add to your
answer, you certainly have that opportunity to do so in
writing.
Seeing no other Member that has not already been
recognized, this concludes our hearing for today. I would like
to thank each of the witnesses for your testimony--very good
testimony, I might add.
And I ask unanimous consent that the record of today's
hearing remain open until such time as our witnesses have
provided answers to any questions that may be submitted to them
in writing.
Without objection, so ordered.
I also ask unanimous consent that the record remain open
for 15 days for any additional comments and information
submitted by Members or witnesses to be included in the record
of today's hearing.
Without objection, so ordered.
The subcommittee stands adjourned.
[Whereupon, at 12:33 p.m., the subcommittee was adjourned.]
Submissions for the Record
----------
Letter of February 17, 2023, to Hon. Sam Graves, Chairman, and Hon.
Rick Larsen, Ranking Member, Committee on Transportation and
Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F.
Napolitano, Ranking Member, Subcommittee on Water Resources and
Environment, from the American Sportfishing Association et al.,
Submitted for the Record by Hon. Grace F. Napolitano
February 17, 2023.
The Honorable Sam Graves,
Chair,
House Transportation and Infrastructure Committee, 2165 Rayburn House
Office Building, Washington, DC 20515-6256.
The Honorable David Rouzer,
Chair,
House Transportation and Infrastructure Committee, Subcommittee on
Water Resources and Environment, H2-585 Ford House Office
Building, Washington, DC 20515-6256.
The Honorable Rick Larsen,
Ranking Member,
House Transportation and Infrastructure Committee, 2165 Rayburn House
Office Building, Washington, DC 20515-6256.
The Honorable Grace F. Napolitano,
Ranking Member,
House Transportation and Infrastructure Committee, Subcommittee on
Water Resources and Environment, H2-585 Ford House Office
Building, Washington, DC 20515-6256.
Re: Letter for the Record, House Subcommittee on Water Resources and
Environment, February 8, 2023 Hearing, ``Stakeholder Perspectives on
the Impacts of the Biden Administration's Water of the United States
(WOTUS) Rule.''
Chairman Graves, Ranking Member Larsen, Subcommittee Chairman
Rouzer, and Subcommittee Ranking Member Napolitano:
The below-signed members of the hunting and fishing community
submit this letter for the record in connection with your hearing on
stakeholders' perspectives on the Clean Water Act and its
implementation by the U.S. EPA (``EPA'') and U.S. Army Corps of
Engineers (``USACE''), specifically the agencies' recent publication of
their ``Revised Definition of `Waters of the United States' '' rule
(``the Revised Definition Rule'').
Our members and supporters live and work across the country,
spanning urban and rural areas, and they include small business owners,
farmers, ranchers, and many other diverse livelihoods. Our members have
in common personal connections with their nearby streams and rivers.
They care deeply about the health of the nation's waterways and our
responsibility to steward water resources for future generations.
Our members have supported the revised ``Waters of the United
States'' definition because it meets the purpose of the Clean Water
Act, which is to make our waters healthy, fishable, and swimmable. The
Revised Definition Rule is rooted in sound science and ensures
protection of small streams and wetlands that provide clean water not
just for fisheries but also for farmers, businesses, and communities.
Hunters and anglers have been consistent defenders of the Clean Water
Act, and we write today in support of the Revised Definition Rule.
1. The Revised Definition Rule reflects approaches under the Reagan and
Bush II Administrations.
The Revised Definition Rule is a return to approaches for EPA and
USACE used prior to the 2015 Obama rule. The agencies' rule limits the
application of a 1986 Reagan-era interpretation with an approach almost
identical to the 2008 guidance issued under the President George W.
Bush Administration, which has been the basis for agency decisions for
most of the past 15 years.
Although narrower than the 2015 Clean Water Rule, the Revised
Definition Rule is well within the limits identified in Supreme Court
precedent, relies on solid science, and draws on the agencies'
experience and technical expertise. The agencies have long made site-
specific jurisdictional determinations under the Clean Water Act, under
both Republican and Democratic administrations. The Revised Definition
Rule restores the long-standing requirement to obtain a 404 Permit for
disturbance to many headwater streams and wetlands under the case-by-
case agency analysis that had been reversed by the 2020 Navigable
Waters Protection Rule.
2. Farmers and Ranchers have clarity and certainty under the Revised
Definition Rule.
Routine farming and ranching activities are protected from
permitting under the Revised Definition Rule. Because the Clean Water
Act itself exempts from permitting routine, ongoing farming and
ranching activities, these important economic activities are protected
under the Revised Definition Rule. Farming, ranching, and forestry
activities such as plowing, cultivating, minor drainage, and harvesting
for the production of food, fiber, and forest products, or upland soil
and water conservation practices are all exempt from 404 permitting
under Section 404(f)(1)(A) of the Clean Water Act.\1\ The Revised
Definition Rule recognizes that American agriculture fulfills a vitally
important public need and ensures that the agricultural exemptions are
appropriately implemented.
---------------------------------------------------------------------------
\1\ Memorandum: Clean Water Act Section 404 Regulatory Program and
Agricultural Activities, United States Environmental Protection Agency
and United States Department of the Army, (May 3, 1990), available at:
https://www.epa.gov/cwa-404/memorandum-clean-water-act-section-404-
regulatory-program-and-agricultural-activities (last visited on
February 7, 2023).
---------------------------------------------------------------------------
3. The Revised Definition Rule protects sustainable economic activity.
With the adoption of the Revised Definition Rule, the agencies also
restored the important economic driver of healthy waters that includes
the outdoor recreation economy, anglers, hunters, boaters, swimmers,
other outdoor enthusiasts, commercial fisheries and the fishing
industry. For example, in 2021, an estimated 52.4 million Americans
fished \2\ and over 30 million Americans hunted.\3\ Nationwide, outdoor
recreation accounts for 1.9 percent of gross domestic product,
supporting the employment of 4.5 million Americans.\4\
---------------------------------------------------------------------------
\2\ Recreational Boating and Fishing Federation, https://
www.takemefishing.org/getmedia/155fcbd1-716a-41e5-ad5b-1450b76b9162/
2022-Special-Report-on-Fishing.pdf (accessed on February 17, 2023).
\3\ Council to Advance Hunting and Shooting Sports, https://
cahss.org/our-research/2022-special-report-on-hunting-and-the-shooting-
sports (accessed on February 17, 2023).
\4\ Outdoor Recreation Roundtable, https://
recreationroundtable.org/economic-impact/ (accessed on February 17,
2023).
---------------------------------------------------------------------------
Conclusion
The undersigned members of the hunting and fishing community
commend the EPA and ACOE for taking a significant step forward with a
revised definition that is in line with the objectives of the Clean
Water Act and is based on a compelling scientific and technical record.
We submit this written testimony for the record in support of the
Revised Definition Rule and urge the Subcommittee to ensure that
accurate information about the Rule is conveyed in the public discourse
of the Rule, particularly about the Rule's clear protections for
America's farmers and ranchers.
Sincerely,
American Sportfishing Association.
Izaak Walton League of America.
National Wildlife Federation.
Theodore Roosevelt Conservation Partnership.
Trout Unlimited.
Appendix
----------
Question from Hon. Greg Stanton to Garrett Hawkins, President, Missouri
Farm Bureau
Question 1. In your opinion, is this rule broader or narrower in
scope than the 2008 Bush Guidance as it was applied following the
Supreme Court decisions in SWANCC and Rapanos? If broader, please
explain specifically how it is broader and what waters under the rule
are new compared to the 2008 guidance.
Answer. The Biden Administration's rulemaking is broader than the
2008 Bush Guidance that was released after the SWANCC and Rapanos
decision. I can provide a few examples in the preamble that indicate
that this is an expansion in scope.
Interpretation of the Relatively Permanent Test: The final rule
makes the relatively permanent standard more expansive compared to the
Rapanos Guidance, which used the concept of continuous flow for at
least one season (typically three months) as a benchmark. The final
rule abandons the seasonal concept and does not use any bright line
tests (days, weeks, or months). Relatively permanent tributaries have
flowing or standing water year-round or continuously during certain
times of the year. Relatively permanent waters do not include
tributaries with flowing or standing water for only a short duration in
direct response to precipitation. This subtle change will greatly
expand what areas the agencies can assert jurisdiction over, within
every category, using the relatively permanent test.
Conversely, because the relatively permanent standard is broader
than the approach described in the 2008 guidance some of the exemptions
will become narrower. For example, the ditch exclusion appears
identical to the exclusion in the 2008 guidance however, as it is
applied under this new interpretation of the relatively permanent
test--the exclusion becomes far harder to apply.
Adjacent Wetlands Category: The agencies interpret continuous
surface connection to mean a physical connection that does not need to
be a continuous hydrologic connection.
Under the relatively permanent standard for adjacent wetlands,
wetlands meet the continuous surface connection requirement if they are
separated from a relatively permanent impoundment of a tributary by a
natural berm, bank, dune, or similar natural landform so long as that
break does not sever a continuous surface connection and provides
evidence of a continuous surface connection. This is broader than the
2008 Guidance, which used to equate continuous surface connection with
directly abutting and not separated by a berm, dike, or similar
feature.
Scope of Significant Nexus Test: Under the 2008 Rule, the agencies
applied the test to a specific reach of a tributary plus wetlands
adjacent to that reach. The new rule applies a broader catchment
approach. The agencies would start by identifying where a specific
reach flows into a higher order stream. But rather than looking just at
that reach and its adjacent wetlands, the agencies would look at the
combined effect of all lower order tributaries upstream of that point
plus all wetlands adjacent to those lower order tributaries.
(A)(5) Category: This category was not even mentioned in the 2008
guidance. The 2008 guidance focuses only on applying the significant
nexus test to a specific tributary reach plus its adjacent wetlands,
and it says nothing about how to apply the test to waters outside of
the tributary system. The new rule applies the significant nexus test
to this category, and even though the agencies say they will
``generally'' evaluate whether such waters meet the test on an
individual basis, the rule on its face allows the agencies to consider
whether waters ``alone or in combination with similarly situated
[(a)(5)] waters in the region'' meet the significant nexus test.
Several key terms and concepts are vague, lack definitions, or are
contradictory: While this certainly existed in the 2008 guidance, the
key terms used to apply the significant nexus test are incredibly
vague. Terms like ``in the region,'' ``similarly situated,'' and
``significantly affect'' were poorly defined then, and remain ambiguous
now. Failing to provide these definitions gives the agencies the
latitude to assert jurisdictional however they please. Landowners and
small businesses will be forced to hire costly consultants and
attorneys to determine whether their property has WOTUS and required
federal permits.
Question from Hon. Greg Stanton to Alicia Huey, Chairman of the Board,
National Association of Home Builders
Question 1. In your opinion, is this rule broader or narrower in
scope than the 2008 Bush Guidance as it was applied following the
Supreme Court decisions in SWANCC and Rapanos? If broader, please
explain specifically how it is broader and what waters under the rule
are new compared to the 2008 guidance.
Answer. Representative Stanton, thank you for your question
regarding the difference between the Revised Definition of waters of
the United States (2023 Rule) \1\ and the 2008 Rapanos Guidance
(Guidance) \2\. In short, the 2023 Rule and its heavy reliance upon the
problematic significant nexus test are far broader than the Guidance.
I'll provide a few examples below--
---------------------------------------------------------------------------
\1\ 88 Fed. Reg. Sec. 3004 (January 18, 2023)
\2\ U.S. Environmental Protection Agency and U.S. Army Corps of
Engineers, (December 2, 2008), Clean Water Act Jurisdiction Following
the U.S. Supreme Court's Decision in Rapanos v. United States &
Carabell v. United States. Retrieved March 13, 2023, from https://
www.epa.gov/sites/default/files/2016-02/documents/
cwa_jurisdiction_following_
rapanos120208.pdf.
---------------------------------------------------------------------------
The agencies' interpretation of the relatively permanent
test is clearly more expansive than under the Guidance. Importantly,
the agencies' interpretation of the relatively permanent test is
intentionally more expansive than under the Guidance, resulting in more
ephemeral features being jurisdictional while eroding the utility of
the 2023 Rule's exclusions for ditches. Specifically, under the 2023
Rule, the agencies flatly reject their own approach under the Guidance
that had described relatively permanent tributaries as having either
year-round flow or at least seasonal flow (described as possessing
water at least three months during a given year).\3\ \4\
---------------------------------------------------------------------------
\3\ 88 Fed. Reg. Sec. 3085 (January 18, 2023)
\4\ Id., page 7
---------------------------------------------------------------------------
The agencies refuse to provide any limitations or clarify what
constitutes relatively permanent flow in the final rule or preamble.
Leaving the interpretation of this undefined term completely at the
discretion of federal regulators ensures inconsistent and conflicting
interpretations in the field. Instead of attempting to provide any
clarity, the final rule's preamble is littered with conflicting
descriptions of what might constitute a relatively permanent flow.
Examples include tributaries or even human-made ditches that contain
flow only in response to water diversions or even the discharge of
treated effluent.\5\ Abandoning the description of relatively permanent
flows used in the Guidance undermines the ditch exclusion and
significantly expands federal jurisdiction compared to the pre-2015
regulatory regime. Elsewhere within the final rule's preamble, the
agencies claim that some ephemeral tributaries that possess water only
briefly and directly respond to a rainfall event do not constitute
relatively permanent flow. However, elsewhere in the preamble, the
agencies claim instances where tributaries or ditches containing flow
from ``concentrated back-to-back precipitation events'' represent
relatively permanent flow.\6\
---------------------------------------------------------------------------
\5\ 88 Fed. Reg. Sec. 3085 (January 18, 2023)
\6\ 88 Fed. Reg. Sec. 3086 (January 18, 2023)
The 2023 Rule dramatically expands the use of the
significant nexus tests by applying it to 3 out of the 5 final rule's
jurisdictional categories. By comparison, the Guidance limited the use
of the significant nexus test to only certain reaches of tributaries
and only those wetlands that were directly adjacent to those specific
portions of those same tributaries.\7\ \8\ Further, the 2023 Rule's
(a)(5) jurisdictional category was not even contemplated by the
agencies under the Guidance because it did not assert jurisdiction over
any feature outside a tributary system.
---------------------------------------------------------------------------
\7\ 88 Fed. Reg. Sec. 3142 (January 18, 2023)
\8\ U.S. Environmental Protection Agency and U.S. Army Corps of
Engineers, (December 2, 2008), Clean Water Act Jurisdiction Following
the U.S. Supreme Court's Decision in Rapanos v. United States &
Carabell v. United States. Page 8. Retrieved March 13, 2023, from
https://www.epa.gov/sites/default/files/2016-02/documents/
cwa_jurisdiction_following_
rapanos120208.pdf
---------------------------------------------------------------------------
The 2023 Rule's approach for conducting a significant nexus
test on an (a)(5) feature creates confusion over the geographic size of
the area subject to the significant nexus analysis. Specifically, the
2023 Rule's regulatory text includes the phrase, ``either alone or in
combination with similarly situated waters in the region.\9\ Thus, the
regulatory text clearly allows federal regulators to aggerate otherwise
isolated (a)(5) features when performing significant nexus tests.
Meanwhile, the rule's preamble contradicts the regulatory text by
claiming significant nexus analyses performed on (a)(5) features will
be done individually on a case-by-case basis. By establishing a rule
where the preamble contradicts the regulatory text, which approach
might the agencies ultimately take?
---------------------------------------------------------------------------
\9\ 88 Fed. Reg. Sec. 3142 (January 18, 2023)
---------------------------------------------------------------------------
Beyond this regulatory confusion created by the rule's
approach for conducting significant nexus tests on an (a)(5) feature,
the agencies acknowledged that under the pre-2015 regulatory regime,
they have never asserted jurisdiction over a feature now covered under
the final rule's (a)(5) jurisdictional category.\10\ Especially
following the U.S. Supreme Court's (2001) SWANCC ruling that expressly
rejected the agencies' assertion of jurisdiction over identical
isolated ponds and wetlands under the repealed migratory bird rule.
Thus the 2023 Rule's approach for applying the significant nexus test
over otherwise non-navigable, isolated, and ephemeral features under
the 2023 Rule's (a)(5) jurisdictional category is clearly broader than
the agencies' pre-2015 practices.
---------------------------------------------------------------------------
\10\ 88 Fed. Reg. Sec. 3103 (January 18, 2023)
---------------------------------------------------------------------------
The final rule defines ``significantly affect'' as ``a
material influence on the chemical, physical or biological integrity''
of a WOTUS.\11\ Through the significant nexus test, federal regulators
will determine the jurisdictional status of a water based on its
functions and factors. Federal agency staff will consider the
following: contribution to flow; trapping, transformation, filtering
and transport of materials, including nutrients, sediment and other
pollutants; retention and attenuation of floodwaters and runoff;
modulation of temperature in waters; provision of habitat and food
resources for aquatic species located in waters; the distance from a
WOTUS; hydrologic features, such as the frequency, duration, magnitude,
timing and rate of hydrologic connections, including shallow subsurface
flow; the size, density or numbers of waters that have been determined
to be similarly situated; landscape position and geomorphology;
climatology variables such as temperature, rainfall, and snowpack.\12\
The agencies fail to describe the necessary impacts before claiming
jurisdiction over any feature. In contrast, the Guidance established
the significant nexus test to consider: volume, duration and frequency
of flow, including consideration of certain physical characteristics of
the tributary; proximity to the traditional navigable water; the size
of the watershed; average annual rainfall; average annual winter
snowpack; the potential of tributaries to carry pollutants and flood
waters to a TNW; provision of aquatic habitat that supports a TNW; the
potential of wetlands to trap and filter pollutants or store flood
waters; maintenance of water quality in TNW.\13\ The agencies are
expanding what they seek to determine ``material influence'' and
significant nexus impacts on a WOTUS.
---------------------------------------------------------------------------
\11\ 88. Fed. Reg. Sec. 3067 (January 18, 2023)
\12\ 88. Fed. Reg. Sec. 3120 (January 18, 2023)
\13\ Id., page 8
The crux of the issue is that instead of issuing a final rule that
is so reliant upon the significant nexus test to capture otherwise non-
navigable, isolated, and ephemeral features as jurisdictional, the
agencies should have waited until the Supreme Court issues its ruling
in Sackett v. EPA to learn if the significant nexus is even legal under
the CWA. The Court's ruling under Sackett will clearly determine the
legality of the significant nexus test, a crucial part of the final
rule. Instead, the agencies have decided to implement this final rule
before the Court issues a ruling under Sackett. By doing so, the
agencies are not only creating additional bureaucratic and project
delays but also directly raising housing costs when the nation is
already experiencing a housing affordability crisis. Should the
agencies not provide any further guidance on how the significant nexus
and relatively permanent standards will be applied in the field,
regulated landowners and their paid consultants, must simply interpret
and reinterpret ambiguous descriptions contained within the rule's
preamble. Lastly, please review the testimony submitted by Frank Murphy
on behalf of NAHB to the U.S. Small Business Committee on March 8,
2023, on the impacts the 2023 Rule will have on small businesses and
the complications of the significant nexus test.\14\
---------------------------------------------------------------------------
\14\ Small Business Perspectives on the Impacts of the Biden
Administrations Waters of the United States (WOTUS) Rule: Hearing
before the House Committee on Small Business, 118th Cong. (2023)
(testimony of Frank Murphy)
---------------------------------------------------------------------------
Question from Hon. Greg Stanton to Dave Owen, Harry D. Sunderland
Professor of Law and Faculty Director of Scholarly Publications,
University of California College of Law, San Francisco
Question 1. In your opinion, is this rule broader or narrower in
scope than the 2008 Bush Guidance as it was applied following the
Supreme Court decisions in SWANCC and Rapanos? If broader, please
explain specifically how it is broader and what waters under the rule
are new compared to the 2008 guidance.
Answer. The 2022 rule is almost identical in scope to the 2008
guidance document, both as that 2008 guidance was written and as it was
applied. Both the 2022 rule and the 2008 guidance use Justice Kennedy's
significant nexus test and Justice Scalia's continuous surface
connection test as alternative standards for establishing jurisdiction,
and both extend jurisdiction to adjacent wetlands. Both define the
significant nexus test in the same basic terms (which are consistent
with the Clean Water Act's definition of water quality), and thus treat
hydrologic and ecological connections as relevant to the significant
nexus analysis. Both treat as jurisdictional ditches that are built in
or functionally replace natural waterways. Both also include
traditional exemptions for prior converted cropland, stormwater-control
features, and short-term flow features like swales and erosional
gullies.
The two documents are not the same, but the differences are
generally in the depth of explanation rather than the scope of
coverage. For example, the 2022 rule specifically exempts a wider
variety of features and activities from Clean Water Act coverage. These
exemptions generally are not new; they have been part of regulatory
practice for decades. But the 2022 rule makes them more explicit than
the 2008 guidance did. Likewise, because it is a much longer document,
the 2022 rule's preamble provides more explanation of the reasons for
inclusion or exclusion of specific features. But, again, these are just
differences of explanation. The scope of coverage is the same.
Because of the variety of features to which the 2022 rule and the
2008 guidance apply, the similarities between the systems might be
easiest to see in tabular form, and the table below summarizes the
consistency.
------------------------------------------------------------------------
Treatment, 2008 Treatment, 2022
Aquatic Feature or Activity Guidance Rule
------------------------------------------------------------------------
Traditional navigable waters.... Jurisdictional.... Jurisdictional.
------------------------------------------------------------------------
Interstate waters............... Not explicitly Jurisdictional.
mentioned but
treated as
jurisdictional.
------------------------------------------------------------------------
Wetlands adjacent to navigable Jurisdictional Jurisdictional
waters. (even if a man- (even if a man-
made barrier made barrier
exists between exists between
the wetland and the wetland and
the navigable the navigable
waters). waters).
------------------------------------------------------------------------
Non-navigable tributaries with Jurisdictional.... Jurisdictional.
relatively permanent surface
connections to navigable waters.
------------------------------------------------------------------------
Wetlands abutting jurisdictional Jurisdictional.... Jurisdictional.
but non-navigable tributaries.
------------------------------------------------------------------------
Non-navigable tributaries that Jurisdictional Jurisdictional
lack relatively permanent only if only if
connections to navigable waters. protection of the protection of the
tributary has a tributary has a
significant nexus significant nexus
(individually or (individually or
in combination in combination
with other with other
similar features) similar features)
to water quality to water quality
in navigable-in- in navigable-in-
fact waters. fact waters.
------------------------------------------------------------------------
Wetlands adjacent to tributaries Jurisdictional Jurisdictional
that lack relatively permanent only if only if
connections to navigable waters. protection of the protection of the
wetland has a wetland has a
significant nexus significant nexus
(individually or (individually or
in combination in combination
with other with other
similar features) similar features)
to water quality to water quality
in navigable-in- in navigable-in-
fact waters. fact waters.
------------------------------------------------------------------------
Wetlands adjacent to but not Jurisdictional Jurisdictional
directly abutting permanent, only if only if
nonnavigable waters. protection of the protection of the
wetland has a wetland has a
significant nexus significant nexus
(individually or (individually or
in combination in combination
with other with other
similar features) similar features)
to water quality to water quality
in navigable-in- in navigable-in-
fact waters. fact waters.
------------------------------------------------------------------------
Ditches constructed wholly in Non-jurisdictional Non-
uplands and with non-permanent jurisdictional.
flow.
------------------------------------------------------------------------
Ditches that are constructed in Jurisdictional, if Jurisdictional, if
or that replace natural stream the ditch meets the ditch meets
flows. the relatively the relatively
permanent surface permanent surface
connection or connection or
significant nexus significant nexus
test. test.
------------------------------------------------------------------------
Swales or erosional features Non-jurisdictional Non-
with only occasional flow. jurisdictional.
------------------------------------------------------------------------
Prior converted cropland........ Non-jurisdictional Non-
jurisdictional.
------------------------------------------------------------------------
Artificially irrigated areas Not explicitly Non-
that would revert to dry land mentioned but jurisdictional.
if irrigation ceased. generally treated
as
nonjurisdictional.
------------------------------------------------------------------------
Artificial lakes and ponds Not explicitly Non-
created in dry land and used mentioned but jurisdictional.
for purposes like stock generally treated
watering, irrigation, settling as
basins, or rice growing. nonjurisdictional.
------------------------------------------------------------------------
Pits and other temporary Not explicitly Non-
features created during mentioned but jurisdictional.
construction. generally treated
as
nonjurisdictional.
------------------------------------------------------------------------
Question from Hon. Troy A. Carter to Dave Owen, Harry D. Sunderland
Professor of Law and Faculty Director of Scholarly Publications,
University of California College of Law, San Francisco
Question 1. Mr. Owen, do you see the Biden administration's WOTUS
rules as helping to facilitate the current trend of state action being
taken to protect our waterways?
Answer. The Biden Administration's WOTUS rules will help facilitate
state protection of waterways. They will do so in several ways.
First, by retaining the traditional geographic reach of the Clean
Water Act, the rules will retain the traditional geographic scope of
state programs designed to implement the Clean Water Act. Almost all
states implement key parts of the statute, including the National
Pollutant Discharge Elimination System, which is the statute's most
important permitting program, and many states have chosen to make state
regulatory jurisdiction consistent with the scope of the federal
statute. That means that if federal jurisdiction shrinks, state
jurisdiction shrinks with it--unless the state revises its statutes and
individually pursues programs that it previously implemented with
collaboration and support from the federal government.
Shrinking the scope of jurisdiction would undermine state authority
in other ways. For example, states would lose important authority under
Clean Water Act section 401. Section 401 allows states to condition
federal authorization for any activity involving a discharge upon
compliance with state laws protecting water quality. In other words, it
gives states authority to make sure the federal government does not
harm state waters without state permission. States routinely use this
authority, particularly with respect to permits issued by the US Army
Corps of Engineers. But section 401 authority only reaches as far as
the Clean Water Act reaches. If the scope of the Act's protections
becomes narrower, states will lose much of their authority under
section 401.
Both of these examples capture a broader point. Because so much of
Clean Water Act implementation is done by the states, and because the
Clean Water Act protects water quality, retaining the traditional
geographic scope of Clean Water Act coverage means retaining and
supporting traditional state water quality protection. Those
protections will benefit not just the states in which the protective
activity occurs, but also every downstream state.
I hope you find these responses helpful, and please do not hesitate
to contact me if I can be of additional assistance.
[all]