    [Senate Hearing 116-394]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 116-394

                           STAKEHOLDER REACTIONS: THE
                          NAVIGABLE WATERS PROTECTION
                         RULE UNDER THE CLEAN WATER ACT

    =======================================================================

                                    HEARING

                                   before the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS

                              UNITED STATES SENATE

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               SEPTEMBER 16, 2020

                                   __________

      Printed for the use of the Committee on Environment and Public Works

                      [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov

                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    42-874 PDF                WASHINGTON : 2023

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                         ONE HUNDRED SIXTEENTH CONGRESS
                                 SECOND SESSION

                        JOHN BARRASSO, Wyoming, Chairman

    JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware,
    SHELLEY MOORE CAPITO, West Virginia      Ranking Member
    KEVIN CRAMER, North Dakota           BENJAMIN L. CARDIN, Maryland
    MIKE BRAUN, Indiana                  BERNARD SANDERS, Vermont
    MIKE ROUNDS, South Dakota            SHELDON WHITEHOUSE, Rhode Island
    DAN SULLIVAN, Alaska                 JEFF MERKLEY, Oregon
    JOHN BOOZMAN, Arkansas               KIRSTEN GILLIBRAND, New York
    ROGER WICKER, Mississippi            CORY A. BOOKER, New Jersey
    RICHARD SHELBY, Alabama              EDWARD J. MARKEY, Massachusetts
    JONI ERNST, Iowa                     TAMMY DUCKWORTH, Illinois
                                         CHRIS VAN HOLLEN, Maryland

                  Richard M. Russell, Majority Staff Director
                  Mary Frances Repko, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page

                               SEPTEMBER 16, 2020

                               OPENING STATEMENTS

    Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     1
    Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     2
    Inhofe, Hon. Thomas M., U.S. Senator from the State of Oklahoma,
      Prepared Statement.............................................    62

                                   WITNESSES

    Gaesser, Ray, Owner-Operator, Gaesser Farms......................     5
        Prepared statement...........................................     8
        Responses to additional questions from Senator Carper........    11
    Davis, Douglas, Jr., President and Chief Executive Officer,
      Fletcher Davis Company.........................................    13
        Prepared statement...........................................    16
        Responses to additional questions from Senator Carper........    24
    Roose, Rebecca, Director, Water Protection Division, New Mexico
      Environment Department.........................................    25
        Prepared statement...........................................    27
        Responses to additional questions from:
            Senator Barrasso.........................................    39
            Senator Carper...........................................    40
            Senator Markey...........................................    42

                              ADDITIONAL MATERIAL

    INSIGHTS, Policy Forum, Science Article, "Distorting science,
      putting water at risk".........................................    63
    Amicus Brief, Full Version.......................................    66
    Navigable Waters Protection Rule Hearing NSSGA Letter............   118
    Mark Ryan blog-WOTUS rule implementability.......................   120
    Motion to intervene..............................................   122
    Waters Advocacy Coalition EPW NWPR Letter........................   140
    Wyoming Press release............................................   144

     STAKEHOLDER REACTIONS: THE NAVIGABLE WATERS PROTECTION RULE UNDER THE
                                CLEAN WATER ACT

                                  ----------

                         WEDNESDAY, SEPTEMBER 16, 2020

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee, met, pursuant to notice, at 10:08 a.m. in
    room 406, Dirksen Senate Office Building, Hon. John Barrasso
    (chairman of the committee) presiding.
        Present: Senators Barrasso, Carper, Braun, Rounds,
    Sullivan, Boozman, Ernst, Cardin, Whitehouse, Booker, Van
    Hollen.

               OPENING STATEMENT OF HON. JOHN BARRASSO,
                 U.S. SENATOR FROM THE STATE OF WYOMING

        Senator Barrasso. Good morning. I call this hearing to
    order.
        Today, the committee will examine the Trump
    Administration's Navigable Waters Protection Rule, defining
    waters of the United States under the Clean Water Act. The new
    rule went into effect in June 2020. The 2020 rule replaces the
    Obama administration's illegal rule issued in 2015. That rule
    gave Washington almost boundless control over what Americans
    can do on their own property.
        The Senate opposed the 2015 rule. We passed a congressional
    Review Act Resolution in 2015, sponsored by Senator Ernst, who
    is a valued member of the committee and who is here with us
    again today. President Obama vetoed that resolution after it
    passed the House in 2016.
        President Trump signed an executive order during the first
    months of his presidency directing his Administration to do
    away with the 2015 rule. The Trump Administration repealed the
    Obama-era rule last year.
        In April of this year, the Trump Administration published
    its replacement, the Navigable Waters Protection Rule. The new
    rule is clear, and it is limited. It is broadly supported by
    landowners, by businesses, and by States. Twenty-three States
    are supporting the rule in court, including my home State of
    Wyoming.
        President Trump's rule will not regulate puddles or prairie
    potholes or dry land. It follows congressional intent, and it
    recognizes that landowners and States, not Washington, should
    lead the protection of most water and property in our Country.
    Washington should have a limited role grounded in interState
    commerce.
        Federal regulations, which are overly broad, can actually
    discourage innovative practices to protect our land and water.
    In addition, confusing and punishing regulation serves as a
    drag on our economy without environmental benefit. We can have
    clean water and a growing economy at the same time.
        The Trump Administration also worked to ensure that its
    agencies collaborated on the new rule. This contrasts sharply
    with how the Obama administration operated.
        In 2017, our committee held a hearing on the old Waters of
    the U.S. Rule. We heard from retired Major General John
    Peabody, a former commanding general of the Civil and Emergency
    Operations at the Corps of Engineers. He testified that the
    Obama administration's rule wasn't based on the Army Corps'
    expertise and experience. In fact, he said, the Army Corps was
    shut out of the process of writing the final rule and the
    support documents.
        The Army Corps is the agency that performs the inspections
    that identify what water is federally regulated. If the rule
    wasn't based on the Army Corps' experience, that means it has
    no technical basis. It was a blatant government power grab by
    Washington's unelected bureaucrats.
        By contrast, the Trump Administration has shown a
    collaborative approach in developing the Navigable Waters
    Protection Rule. Together, the Environmental Protection Agency
    and the Army Corps of Engineers developed a simplified, clear
    definition of waters of the U.S. that respects the law and the
    constitution.
        The Trump Administration's replacement rule restores
    balance between the States and Washington. The new Waters of
    the U.S. Rule avoids needless duplication that provides no
    additional environmental benefit. I applaud the Administration
    for its recognition that clear rules also require consistent
    application.
        Now that the new rule is out, EPA and the Army Corps are
    working on fostering consistent application of the rule. The
    Administration has already issued documents and tools to guide
    implementation in key areas. To ensure consistency, the
    Administration plans to conduct internal reviews at regular
    intervals to check that decisions are consistent, no matter
    what region of the Country they impact.
        This is a good start. The Navigable Waters Protection Rule
    is a great example of Washington listening to the people to
    develop clear rules that result in clean water.
        I will now turn to Ranking Member Carper for his opening
    statement.

              OPENING STATEMENT OF HON. THOMAS R. CARPER,
                U.S. SENATOR FROM THE STATE OF DELAWARE

        Senator Carper. Mr. Chairman, thanks so much. I want to
    welcome with us here this morning, Douglas Davis, Jr., nice
    meeting you sir, and all the way from St. Augustine, Florida.
    We are happy that you are here. I understand Ray Gaesser is
    down in Corning, is it Iowa? Is it Iowa? Yes? OK. We are happy
    to have one of your constituents here, Joni. I also want to
    welcome, all the way from Santa Fe, Rebecca Roose. You have
    come a long way, or almost, you are coming a long way from a
    long distance, Rebecca, so welcome aboard.
        I really appreciate the opportunity, I think we appreciate
    the opportunity afforded by this hearing to discuss the role of
    the Federal Government in protecting our Nation's waters and in
    providing our States and our businesses with greater certainty
    and predictability. It is interesting; I think it is what
    everybody wants, greater certainty, predictability. So the
    question has always been, how do actually get to that goal?
        Throughout what we call the Delmarva Peninsula, in our part
    of the world, throughout the peninsula can be found something
    called ``whale wallows.'' These shallow, freshwater depressions
    dot and weave through the landscape of the Eastern Shore of
    Virginia, the Eastern Shore of Maryland, and my State of
    Delaware.
        Believed by some to be shallow imprints made by ancient
    whales that were beached by great biblical floods, today these
    iconic wetlands are commonly known as the Delaware Bays. They
    are home to the greatest diversity of plant and animal species
    on the Peninsula, many of which are rare, even endangered.
    These wetlands are also attractive rest stops for pollinators
    and migratory birds alike.
        These unique wetlands also act as a natural filter, helping
    to reduce high levels of nutrients and sediments in the soil
    that result from agricultural production in nearby communities.
    I have mentioned this before, I said to our witnesses and my
    colleagues, you have heard this, there are 400 chickens for
    every person who lives in Delaware, and probably almost as many
    in Maryland on the Eastern Shore, and in Virginia. Our State
    bird is a chicken.
        For decades, as generations of Delmarva farmers have
    produced the poultry and crops that feed our Nation, this
    natural filtration system has helped to keep harmful pollutants
    out of our estuaries, including the Chesapeake Bay in our
    neighboring Maryland.
        Sadly, on April 22 of this year, all of these treasured
    waters throughout the Delmarva ecosystem lost Federal
    protection under the Clean Water Act protection that for years
    ensured that no one could legally dredge them, fill them, or
    otherwise degrade them without a permit. Having relied on
    Federal protection, Delaware does not have a law on the books
    today that prevents anyone from altering or destroying these
    resources.
        Now the Delmarva Bays, those legendary whale wallows that
    provide important habitats, filter harmful nutrients, and act
    as a flood barrier against worsening coastal storms can be
    dredged, developed, or otherwise degraded without consequence.
        The high mountain wetlands of Colorado known as the fens,
    not from Finland, but the fens, F-E-N-S, now face a similar
    fate as does Crater Lake in Oregon, nearly 90 percent of the
    river miles in New Mexico, and hundreds of thousands of miles
    of streams and millions of acres of wetlands across our
    Country.
        Protecting our Nation's waters and ensuring clean water for
    all has long been a shared responsibility between States and
    the Federal Government. However, Congress gave the EPA a clear
    directive in the Clean Water Act ``to ensure the chemical,
    biological, and physical health of our waters.''
        The Trump Administration's rule represents an abdication of
    that responsibility, in my view. We know that from the view of
    a lot of people. We know that the extraordinary science,
    including more than 1,000 peer-reviewed studies that served as
    the foundation of the Obama-era rule that these water bodies
    are critically interconnected.
        When snow melts or rain falls, eventually the water in the
    farthest upper reaches of our river systems will flow downward,
    downhill, and feed into our rivers and also into our oceans.
    When these waters flow, no matter for how long or how
    frequently, they will carry every leaf, every twig, bit of
    dirt, and pollutant that they meet along the way.
        Now that these headwaters can be developed or degraded
    without consequence, this rule, this new rule will ensure more
    pollution and higher costs for families and businesses
    everywhere, especially those in disadvantaged communities
    located downstream, which will see higher utility bills as a
    result. At the same time, the rivers and streams now left
    unprotected feed into drinking water sources for more than 100
    million Americans, jeopardizing clean water for approximately
    one in three Americans.
        I think it is worth asking who truly benefits from Federal
    rules that allow industrial facilities, mining operations, and
    animal feedlots to spill their waste into our Nation's
    headwaters and streams. Certainly, it is not our farmers
    located downstream, who will need to install water treatment
    facilities to have clean water to raise healthy crops and
    livestock. It is certainly not our fishermen and our hunters,
    who will see the quality of outdoor recreation decline.
        Despite the Trump Administration's promises otherwise,
    States are not the real winners of this rule either, far from
    it. For many reasons, including the hardship brought by the
    COVID pandemic, most States are unable to step up and cover the
    costs associated with losing Federal protections of these
    waters.
        As we will hear in greater detail shortly, New Mexico just
    recently lost its only protection for almost 90 percent, almost
    90 percent, of its stream miles. Right now, New Mexico is one
    of several States with no law, no funding, and not enough staff
    to handle this huge influx of orphaned waterways.
        As a former State treasurer and a recovering Governor, I
    don't see how most States will be able to devote additional
    resources to shoulder this new burden, especially given the
    budgetary challenges posed by this pandemic. To complicate
    these financial challenges, 27 States have laws on the books
    that limit, if not prohibit, taking actions that are more
    stringent than Federal regulations.
        I will close by saying that for years, the Trump
    Administration promised its proposal would provide greater
    clarity for our constituents. Clearly, that has not proven to
    be true. Instead, this rule has created more uncertainty and
    higher costs for State, communities, and families, while
    putting the drinking water for over 100 million Americans at
    risk. At no time is this the right thing to do, and it is
    certainly not now.
        Again, I will close with thanking our witnesses. We welcome
    you up here, close, and personal, and far away, as far away as
    New Mexico and Iowa. Thank you, Mr. Chairman.
        Senator Barrasso. Well, thank you so much, Senator Carper.
        We do have, as you mentioned, three witnesses: Rebecca
    Roose, who is the Director of the Water Protection Division at
    the New Mexico Environmental Department. She is visiting with
    us remotely from Santa Fe.
        We have with us in the room Douglas Davis, who is the
    President and CEO of Fletcher Davis in St. Augustine, Florida.
    He is testifying on behalf of the National Association of
    Homebuilders.
        We also have, and I am going, in a second, ask Senator
    Ernst to introduce our witness, who will be coming to us
    directly from Iowa, and that is Mr. Ray Gaesser. He is joining
    us remotely from Corning, Iowa.
        So with that, I would like to turn to Senator Ernst to make
    that introduction, and then to Mr. Gaesser for his testimony.
        Senator Ernst. Yes. Thank you, Mr. Chair. I have the great
    privilege of introducing to the committee a fellow Iowan, Mr.
    Ray Gaesser. Today, Mr. Gaesser is here in his capacity as
    owner-operator of Gaesser Farms in Corning, Iowa, where he
    farms corn and soybeans on 5,400 acres. He has more than 50
    years of farming experience and has advocated locally,
    nationally, and globally for agriculture in Iowa and the United
    States as President of both the Iowa Soybean Association and
    the American Soybean Association.
        Mr. Gaesser received the American Soybean Association
    Distinguished Leader Award in 2018, the Iowa Master Farmer
    Award in 2012, the Adams County Conservation Award, and the
    Lenox Rotary Good Citizen Award.
        On a personal note, I do want to say thank you so much to
    Ray and his wonderful wife, Elaine. They are well-known, not
    just through Southwest Iowa where I am from, but through the
    State of Iowa, as good citizens, and good members of their
    community. So thank you Ray, so very much, and I look forward
    to hearing your testimony today.
        Thank you, Mr. Chair.
        Senator Barrasso. Thank you, Senator Ernst. Mr. Gaesser,
    welcome to the committee. We look forward to your comments
    right now, as you are ready.

        STATEMENT OF RAY GAESSER, OWNER-OPERATOR, GAESSER FARMS

        Mr. Gaesser. Good morning. Can you all hear me?
        Senator Barrasso. Very well, thank you.
        Mr. Gaesser. So, good morning Chairman Barrasso and Ranking
    Member Carper and members of the committee. A sincere thank you
    to Senator Ernst for inviting me to speak about the Navigable
    Waters Protection Rule. It is an honor to share my perspective
    on behalf of Iowa's hard-working family farms.
        My name is Mr. Gaesser. I join you today from my family
    farm in Southwest Iowa. Growing up, I always knew I wanted to
    farm, to grow food we eat, the fiber we wear, and the renewable
    fuels that we use. Forty-three years ago, my wife Elaine and I
    moved here, put down roots, and began growing corn and
    soybeans.
        Ever since we planted our first seed, our mission and
    everything we have done to support it has been to protect our
    greatest asset: the soil. The conservation practices we have
    implemented have allowed us to grow more from less, sequester
    carbon, reduce nutrient runoff, and clean our water. We have
    invested time, energy, and hard-earned money into building the
    conservation infrastructure needed to accomplish our mission.
        We cared tirelessly for our land in hopes that our next
    generation would share the same passion for agriculture. That
    hope became a reality in 2009 when our son, Chris, came home
    and said, ``You know, all I really want to do is farm with
    you.'' It was a great day.
        Our farm's mission and partnership with Chris were thrown
    in jeopardy when the Obama administration muddied the waters
    with its 2015 WOTUS Rule. The EPA wrote a rule that threatened
    my farm with jaw-dropping penalties and even criminal
    prosecution for tilling, spraying, or disturbing a water of the
    U.S.
        The only certainty for farmers today is uncertainty. We do
    our best to manage our farms through unpredictable weather and
    market volatility, which can spoil the best-laid environmental
    plans. Our landscapes are diverse, so there is no perfect
    model. Instead, we need to ability to make the best decision
    possible to successfully manage and mitigate what is out of our
    control.
        The 2015 WOTUS Rule made every small wetland, ditch, or
    stream on my farm a regulatory land mine. The rule's broad
    definition expanded Federal jurisdiction far beyond what was
    authorized by Congress, resulting in burdensome requirements,
    widespread uncertainty, and legal risk for farmers. It would
    have given the Federal Government control over 97 percent of
    Iowa's land, forcing farmers to obtain costly permits or pay
    fines for doing normal activities like spraying weeds or even
    installing fences.
        Farmers care about clean water and preserving the land.
    That is why we support the Navigable Waters Protection Rule.
    This rule brings certainty and predictability into focus,
    giving farmers like me and my son Chris the freedom to farm,
    all while achieving important regulatory oversight.
        This new rule does not change who oversees permanent
    waterways. Instead, it ensures that States can enforce their
    own environmental laws to position farmers and rural
    communities for long-term success. It is a very reasonable
    definition of waters of the U.S. within the limits set by
    Congress.
        I like to say, the rain falls on all of us. By the same
    token, clean water matters to all of us. Just like we all want
    access to safe water for ourselves and our families, we all
    have a role to play in protecting our environment. Farmers have
    been calling for clean water and clear rules for years, and
    now, with the Navigable Waters Protection Rule, we know it is
    possible to have both.
        Rather than force a square peg in a round hole with a one-
    size-fits-all approach, it is our government's best interest to
    provide research, technical assistance, and incentives
    encouraging innovation. This approach will help farmers grow
    more food using fewer resources, protect the soil, improve soil
    health, clean our water, and restore wildlife habitat. That is
    why I remain hopeful that the 2015 WOTUS Rule is forever
    relegated to the archives of history.
        Common sense policy, paired with smart agriculture
    practices, will allow me and my son Chris to meet our mission
    and give us the opportunity to be a part of the solution to
    growing more resilient food, fiber, and fuel. That is why the
    Navigable Waters Protection Rule is the right approach to
    improving the livelihood of American farm families, rural
    communities, and businesses.
        Thank you again for allowing me to share my story,
    thoughts, and values on behalf of Iowa farmers. I am happy to
    answer any questions you might have.
        [The prepared statement of Mr. Gaesser follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Well, thank you so much, Mr. Gaesser.
    Thanks for joining us remotely from Corning, Iowa.
        Thank you, Senator Ernst, for bringing such a wonderful
    witness to the committee and identifying Mr. Gaesser to help us
    in our deliberations today. Thank you both.
        I would now like to welcome Douglas Davis, the President
    and CEO of Fletcher Davis, St. Augustine, Florida, who is
    testifying on behalf of the National Association of
    Homebuilders.
        Mr. Davis, welcome.

    STATEMENT OF DOUGLAS DAVIS, JR., PRESIDENT AND CHIEF EXECUTIVE
                    OFFICER, FLETCHER DAVIS COMPANY

        Mr. Davis. Chairman Barrasso, Ranking Member Carper,
    members of the committee, I am humbled and honored to be here
    today. I am a little overwhelmed. This is such a treat to get
    to be here with you guys and to share a little bit about my
    family, about my business, and the impacts of this.
        Again, my name is Doug Davis. I am the President and CEO of
    Fletcher Davis. We are a small, family owned business based in
    St. Augustine, Florida. We focus on development of large,
    conservation-based master plan communities and resorts.
        I commend the committee's desire to highlight the
    stakeholder experience with Clean Water Act compliance. Our
    company has been creating sustainable communities for over 50
    years, that is 5-0 years, and I am proud of the fact that we
    have prioritized environmental protection. In fact, the
    environmental community, NGO's, and others alike, frequently
    applaud our efforts and our methods.
        Over the years, the Federal Government has expanded the
    scope of the regulatory authority, and it frequently changed
    the requirements needed to obtain Federal wetland permits. The
    Obama administration's attempt to clarify Clean Water Act
    jurisdiction would have been especially harmful to my business.
    It would have increased Federal regulatory power over private
    property, led to additional permitting requirements, and
    lengthy delays for any business trying to comply. It was so
    convoluted that even professional wetland consultants with
    decades of experience struggled to determine what is
    jurisdictional.
        My business has fallen victim to an uncertain permitting
    regime. One of our projects was delayed for a decade as we
    sought to obtain the necessary 404 permit. Every step of the
    process offered arduous obstacles, and as the rules changed and
    new requirements were added, it only got more difficult.
        We were left at the mercy of the Federal agencies because
    there was little recourse for landowners in this position.
    Federal agencies have the ability to hold up a project for any
    reason, and nothing can be done to expedite the process.
        I also want to offer one more example. This is an instance
    where stringent Federal regulations almost prevented my
    business from contributing to the preservation of our natural
    resources. In this case, it took us 10 years, a different 10
    years, to navigate the red tape of setting up a wetlands
    mitigation bank. This would have allowed for the creation and
    preservation of over 1,000 acres in one case, and another case,
    6,000 acres. So to be clear, the Federal Government has held up
    the creation and preservation of wetlands for 10 years.
        Thankfully, the Trump Administration finalized the
    Navigable Waters Protection Rule. This new rule provides
    straightforward regulatory requirements, clear jurisdictional
    line, and makes compliance easier. It eliminates ambiguous
    tests to determine jurisdiction and provides landowners with
    greater certainty and focuses on conditions that are more
    easily observable, making it easier to implement in the field.
    The distinction of what is jurisdictional is clear enough to
    allow landowners to determine for themselves what would require
    a Federal permit.
        One of the biggest misconceptions surrounding the Navigable
    Waters Protection Rule is that waters no longer fall under
    Federal jurisdiction will go unprotected. Now, I can tell you
    from my perspective, that is not true. State and local
    governments have the authority to regulate waters, and there
    are a number of environmental requirements that builders and
    developers must comply with.
        In Florida, again, where I live, when creating a
    development, I must consult with the Florida Department of
    Environmental Protection. I have to comply with various State
    wetland laws and regulations, and obtain stormwater permits to
    manage all of my runoff. The State permitting process is far
    easier to navigate because they operate under reasonable
    deadlines and with a greater degree of accountability.
        Homebuilders are especially sensitive to the cost of
    regulations because we have no choice but to pass these costs
    on to the home buyer, which directly affects housing
    affordability, and I know that is big to all of us. NAHB
    estimates that nearly 25 percent, that is 25 percent the cost
    of a single-family home, is due to government regulations, and
    as a result, owning or renting suitable homes is increasingly
    out of financial reach for many households. Due to the COVID-19
    pandemic, many parts of the U.S. economy are likely to
    experience long-lasting economic suffering.
        However, housing has been the bright spot. Housing has
    experienced the strongest rebound among the individual sectors
    in the economy. Construction has remained an essential service
    in most States, and consumer confidence remains strong. Single-
    family permits are now up 8 percent year to date, and housing
    share of GDP rose to a 13-year high.
        Despite all of these successes, many continue to suggest
    that the additional regulatory requirements are necessary.
    Housing has led our Nation out of virtually all economic
    downturns over the last several decades, but it will be unable
    to help lead this economic recovery unless we continue to
    repeal onerous regulations and promote sensible replacements.
        The Navigable Waters Protection Rule is a perfect example
    of the regulatory actions needed to get our economy moving
    again. Our goal is to create more affordable housing. My
    company wants to do this. We want to do it for all Americans,
    but we also want to protect our communities, and we want to
    protect the environment; that is important to us.
        So again, I am humbled to be here today. I look forward to
    answering any questions that I can. Thank you so much.
        [The prepared statement of Mr. Davis follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Well, thank you for your testimony, Mr.
    Davis. Welcome to you, and thank you for being here with us in
    the committee room today.
        The committee is now going to be moving to New Mexico for a
    witness who is visiting us from Santa Fe, and that is Rebecca
    Roose, who is the Director of the Water Protection Division at
    the New Mexico Environment Department. Thank you so much for
    taking time to be with us today, and sharing your thoughts with
    the committee.
        Please proceed, Ms. Roose.

        STATEMENT OF REBECCA ROOSE, DIRECTOR, WATER PROTECTION
              DIVISION, NEW MEXICO ENVIRONMENT DEPARTMENT

        Ms. Roose. Thank you. Mr. Chairman, Ranking Member Carper,
    members of the committee, my name is Rebecca Roose, and I
    oversee implementation of the Clean Water Act programs for the
    New Mexico Environment Department. Thank you for the
    opportunity to provide testimony today on the impact of the
    Navigable Waters Protection Rule in New Mexico.
        My testimony draws on my nearly 15 years of Clean Water Act
    experience at the State and Federal levels. Despite being one
    of the driest States, New Mexico is rich with iconic rivers,
    such as the Rio Grande, stream networks that support multi-
    generational farms, and wetlands, lakes, and reservoirs that
    are critical for drinking water supplies and growing economy.
        The impact of the rule on Clean Water Act jurisdiction in
    New Mexico is severe. As Ranking Member Carper noted in his
    opening statements, under the new rule, ephemeral streams,
    those that flow in response to precipitation, are not
    protected. Nearly 90 percent of New Mexico's rivers and streams
    could be left out of Clean Water Act protections as a result.
    Ephemeral waters are the capillaries of watersheds, recharging
    aquifers and delivering water downstream for beneficial uses.
        In addition, the new definition of adjacent wetland results
    in the loss of protections for many wetlands in New Mexico, for
    example, affecting up to 20 to 70 percent in one particular
    watershed.
        The interplay between fewer enforceable water quality
    requirements and climate change does not bode well for our
    Nation's waters. More intense droughts and shifting
    precipitation patters due to climate change result in lower
    water levels in rivers, lakes, and streams. More frequent and
    powerful storms increase polluted runoff from urban and
    disturbed areas to nearby waterways. These changes stress
    aquatic ecosystems and dramatically impact communities
    throughout the U.S.
        In short, our precious surface waters are more in need of
    protection than ever before. A core argument by those in favor
    of the rule is that it returns control to States, while
    maintaining strong water protections nationwide. It may be true
    that some States will utilize existing authorities to close the
    regulatory gap and retain the critical water quality
    accomplishments of the last 50 years. But meanwhile, in New
    Mexico and many other States, as well as across Tribal lands,
    it could take years and millions of unavailable, unappropriated
    dollars to prevent water quality and watershed degradation.
        Most States today are working through complex steps that
    involve evaluating how the new definition affects their waters,
    analyzing existing authorities to protect State waters, and
    then identifying and prioritizing actions to close any
    regulatory gaps. Simply put, New Mexico has no ready substitute
    under State laws and budget to maintain the critical surface
    water protections achieved through the Clean Water Act.
    Establishing such a program requires significant time, funding,
    and staff, a high hurdle in the best economic times, let alone
    an economic recession.
        This loss of jurisdictional waters could lead to hundreds
    of fewer Federal permits in New Mexico alone. Without an
    established State program to pick up the slack, we could see
    thousands of pounds of additional pollutant discharged into our
    surface waters in New Mexico every year. The value of clean
    water in New Mexico is both cultural and economic.
        Tribes, Pueblos, and traditional rural communities rely on
    fresh water for ceremonial purposes and to feed their families.
    Not only are polluted waters costly for drinking water,
    utilities, farmers, and the outdoor recreation industry, we
    also see implementation of the rule as creating new areas of
    regulatory uncertainty that will burden New Mexico businesses
    and communities.
        The rule significantly changes the national regulatory
    landscape, cutting away at the Clean Water Act authors' goal of
    establishing a level playing field from State to State. In
    addition, determining whether water bodies are perennial or
    intermittent in a typical year is a key provision of the new
    rule, and a task that demands site-specific analysis. In some
    areas, the rule will create a patchwork of WOTUS and non-WOTUS
    segments along the path of a single river, making it extremely
    difficult for landowners to know what is required.
        A final example of new regulatory uncertainty flows from
    the agency's failure to address implications for entities that
    could find themselves newly subject to waste management
    requirements under the Resource Conservation and Recovery Act
    due to revised Clean Water Act jurisdiction.
        I appreciate the opportunity today to provide the
    Environment Department's reaction to the Navigable Waters
    Protection Rule. We now face a perfect storm of water quality
    devastation and economic harm from the rule itself and its
    rushed implementation by EPA and the Army Corps of Engineers,
    which precludes any opportunity for New Mexico to cover the
    regulatory gap before our precious waterways degrade.
        Thank you, and I welcome your questions.
        [The prepared statement of Ms. Roose follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Well, thank you so very much for your
    thoughtful testimony, and thanks for joining us from New
    Mexico.
        I will start with questions. I know we have a number of
    votes starting at 11:30, but I think we will have plenty of
    time for all the members to ask questions.
        My first is to Mr. Davis. Federal jurisdiction under the
    2015 WOTUS Rule would have extended to isolated wetlands, to
    areas that flow only when it rains, to many man-made ditches.
    Can you discuss how overly broad regulations can really drive
    up permitting costs and how that impacts housing affordability?
        Mr. Davis. Yes, thank you. Overly broad rules provide
    uncertainty, and each of the witnesses today, I have heard all
    of us say kind of the same thing. Uncertainty is challenging,
    and for us in the developing and home-building sector,
    uncertainty means delays, and delay means additional expenses
    related to reports, to consultants.
        Additional financing costs, a lot of people don't realize
    that whenever you have attractive land or you are building a
    home, you are only paid when you are complete, so your debt
    service costs just go up and up and up, and these things are in
    return, they make their way into the price of a home. In fact,
    if I may just, for every $1,000 increase in a home price, for
    each time that home goes up $1,000, 158,000 people are
    displaced from the home market.
        So thank you for that question.
        Senator Barrasso. Mr. Gaesser, I have been talking about
    this 2015 WOTUS Rule that I believe has been unclear and been
    overly broad. Certainly in Wyoming, I also saw this trampled on
    the property rights of farmers, ranchers, but not just in
    Wyoming, all across the Country.
        You are there in Iowa. I have heard it was an illegal rule,
    extended Washington's authority well beyond the powers under
    the Clean Water Act. Could you explain a little bit how this
    new definition of waters of the U.S., how that works to respect
    your right to manage your land?
        Mr. Gaesser. Yes, and thanks for the question. The old
    rule, was is really about uncertainty for us, and created
    uncertainty of what we could do and how we could do things,
    even to the practices of improving our water and our soil
    health, and all the other good things that we want to do.
        The new rule allows us as farmers and at the State level to
    make recommendations and to help us to innovate, and it is
    about innovating. The old rule was uncertainty, and really,
    Federal oversight to that delayed everything we did. We were
    waiting on, we would have waited on the Federal Government to
    make any decisions, whether it was planting or applications or
    fertilizer or whatever it was. We could not make a living under
    those kind of conditions.
        The new rule clarifies that and allows the States to help
    with that and make their own decisions on their area of
    responsibility for water. That is what I like about it. It
    allows farmers to have more certainty.
        Senator Barrasso. Thank you.
        Mr. Davis then, with this new rule, the Trump
    Administration is focused on what we talked about as consistent
    implementation. In your testimony, you talked about how home-
    building is one of the bright spots in our economic recovery at
    this point, and the housing sector's share of the economy has
    risen to a 13-year high. Do you anticipate the housing demand
    to remain high and help drive recovery out of this pandemic?
    Will this new rule and consistent implementation help with the
    recovery?
        Mr. Davis. Yes, sir, great question. The answer is
    absolutely, on behalf of the homebuilders and developers, we
    stand absolutely ready to lead in this effort. We are already
    there.
        You have seen housing routinely over the decades take the
    lead, leading us into economic recovery. The old guy and my
    mentor who started our company used to always remind me, he
    said, don't ever underestimate and forget the impact that we
    are having on our economy.
        NAHB, kind of transitioning now to, he always said it as
    more of a saying, but now, as we look at the stats, NAHB says
    that for every 1,000 homes that we build, so every 1,000
    single-family homes that we build, we create 3,000 full-time
    jobs. That same 1,000 homes also adds over $100 million to the
    tax rolls that support our first-line, defenders of police,
    firefighters, schoolteachers, along with our government.
        So, yes, sir, the answer is absolutely, we stand ready.
        Senator Barrasso. Mr. Gaesser, going through your
    biography, I was really struck by your strong personal
    commitment to conservation in farming. I know Senator Ernst
    will have some questions in a second.
        But along these lines, it does seem, the 2015 Rule seemed
    to doubt a farmer's commitment to environmental stewardship of
    the water resources located on your own property. It just seems
    that heavy-handed Federal regulations can prevent a farmer from
    using innovative conservation practices to protect their land
    and water. Am I right about that?
        Mr. Gaesser. Yes, Senator, you are absolutely right about
    that. We do take it personally. And it is not, I am not the
    only farmer in Iowa, you know, that really does care for the
    land and the water. Most of us do, and we are all trying to do
    the best job we can under the uncertainty of the environmental
    conditions that we have with droughts and floods and winds,
    now, and hurricanes in the south part of the U.S.
        But we live with uncertainty, and having a one-size-fits-
    all rule from the Federal Government will not fit agriculture.
    Because what we have learned with two decades of testing on
    farm network testing on environmental programs, and watersheds
    with the Iowa Soybean Association is that one size does not fit
    all, within a watershed or even within a farm.
        We have areas on our farm that need to be managed
    separately or differently than other areas of our farm. Having
    to wait on someone from the Federal Government to give you an
    approval or not, means are you going to get your crops planted
    this year or not, are you going to get it fertilized or not,
    and are you going to make a living for your family or not.
        Senator Barrasso. Thank you so much for that answer.
        Senator Carper.
        Senator Carper. Thanks, Mr. Chairman.
        Ms. Roose, your two Senators asked me to tell you hello,
    Tom Udall and Martin Heinrich. They are not members on this
    committee, but they are very much involved with us in a lot of
    issues, including the ones we are talking about here today, and
    they send their best.
        Mr. Gaesser, you mentioned you have a son named Chris. We
    have three sons; one is named Chris. I call him Christopher,
    and he is a farmer.
        [Laughter.]
        Senator Carper. No, he is not a farmer. He would like to be
    a farmer, but he is a mechanical engineer who lives and works
    out on the West Coast for a technology company.
        He is also a biathlete, triathlete, and he has actually
    done Ironman before. He is a better athlete than I will ever
    be. But he went out to ride, he rides his bike a lot on
    weekends up in Marin County north, in the northern part of the
    State, north of San Francisco and couldn't really breathe, had
    to stop, and basically say, this is not a good thing, it is not
    helping my lungs.
        As it turns out, it is not just the Bay Area, it is not
    just the northern part of California. It is California, it is
    Washington State, it is Oregon State, and the place is on fire.
    We have seen the footage, the destruction, loss of life, huge
    damage of housing and other property.
        As we gather here today, I think there is landfall today as
    Hurricane Sally came ashore in Southern Alabama, Florida. Not
    huge winds, but listen to this: 15 inches of rain in some
    places. Something is happening here, and this comes on the
    heels of a huge hurricane, Category 4/Category 5 hurricane into
    Louisiana just about a week or two ago.
        With that, that is the predicate. I just wanted to lay it
    out and say, Ms. Roose, I think we are all concerned about the
    impacts of hurricanes or wildfires, whether it is Sally or some
    other name, which I understand could dump up to, this latest
    hurricane, up to 35 inches of rain in some parts of Alabama and
    the Florida panhandle.
        What impact would the Trump WOTUS Rule have on wetlands and
    their capacity to help mitigate the flooding associated with
    these massive storms?
        Ms. Roose. Thank you, Senator Carper, for that question.
    And thank you for passing along the greetings from Senator
    Heinrich and Senator Udall. I appreciate that.
        To your questions about wetlands impacts, there are well-
    known, well-established benefits of wetlands for a range of
    ecosystem services. Among them, helping to buffer our
    communities, our coastlines against the impacts of more intense
    storms brought on by changing climate.
        This is a time when we, as a Country, should be coming
    together to, as one of the other witnesses said, innovate. And
    I would say innovate in the area of identifying all the ways in
    which we can better protect the natural resources that both, in
    protecting them, help to prevent the ongoing intensity of
    climate change and also increase our resiliency against the
    impacts of climate change.
        This rule, in that it reduces protections for wetlands that
    nevertheless are critical to economic viability and climate
    change resiliency, that is going to make it harder for our
    State and local communities and Tribes to continue to put up
    the strongest fight that they can against the impacts of the
    changing climate.
        Senator Carper. All right, thanks so much.
        One more question, if I could, Ms. Roose. Your testimony
    points out that Federal agencies overlook the rule's
    implications for hazardous waste compliance under the Federal
    Resources Conservation Recovery Act, we call it RCRA, our
    Nation's solid waste law.
        My question would be, how does the rule's revised
    definition of Federal clean water jurisdiction potentially
    impact municipalities and industrial facilities under RCRA,
    under the Resources Conservation Recovery Act?
        Ms. Roose. Thank you for that question, Senator.
        It is a complicated interplay between two Federal statutes
    that are designed, by way of exemptions, one direction or the
    other, to avoid duplication of regulation for the regulated
    community, which makes a lot of sense.
        In this instance, where we have the revision of Clean Water
    Act jurisdiction that is, in some parts of the Country, well,
    all across the Country and in some areas more than others,
    going to result in facilities that have been covered under
    Section Clean Water Act 402 permits, NPDES permits, that no
    longer are required to meet those programmatic requirements
    under the Clean Water Act.
        That then, may remove an exemption from some of these
    industrial facilities that discharge directly to water bodies
    and those that discharge to municipal wastewater treatment
    plants through a pretreatment program that they now could be
    subject to RCRA requirements, Subtitle C, for hazardous waste.
        This is an area that we were disappointed, here in New
    Mexico, that the EPA and the Army Corps of Engineers didn't pay
    more attention to this in the final rule to provide more
    regulatory certainty for both the regulated entities that could
    be impacted by this, what this means for their compliance
    requirements, and also for the State and Federal agencies that
    are charged with implementing the Resource Conservation and
    Recovery Act.
        So it is unfolding, and we are concerned about the added
    uncertainty that it creates in terms of the interplay between
    these two Federal programs.
        Senator Carper. Ms. Roose, thanks very much for that
    response, and again, thank you very much for joining us from
    New Mexico. Thanks.
        Senator Barrasso. Senator Braun?
        Senator Braun. Thank you, Mr. Chairman. This is a hearing
    important to me. I have been here a little over a year and a
    half, and I have probably had more input from constituents back
    in Indiana when it comes to developers, when it comes to
    farmers.
        I would agree with Ms. Roose 100 percent, if we were
    talking about 48 years ago. I know back then, you couldn't fish
    in our local rivers because they were full of pollutants and
    hazardous waste material.
        I think you have to acknowledge that, and what I disagree
    with 100 percent, is that the stewardship of landowners, the
    States themselves, have now had 48 years since the Clean Water
    Act to know what is best for their own properties and so forth.
    And I think the amount of regulations that have accumulated
    over time have swamped the system, so to speak.
        So I think this is a perfect pivot to where we will not
    forget about where we have come from and that idea that only
    the Federal Government can be the steward that takes,
    literally, micromanagement, whether it is on the part of Mr.
    Gaesser on his farm, or Mr. Davis and his developments. I think
    this is a perfect time to kind of go the other way and not let
    up or forget any of the things that we have accomplished along
    the way.
        First question is for Mr. Davis. A couple developers that
    had to mitigate were shocked in terms of the dollar amount of
    the development when their alternative was a $2 million
    mitigation versus what ended up being a $200,000 mitigation.
        I would like to hear some of the graphic things that you
    have run into along the lines of that, first of all, to know
    that from experts, there was a 90 percent difference in what a
    consultant said needed to be done to mitigate. If you could
    give us a few graphic instances like that, I think it would be
    good for the public to appreciate what you are up against.
        Mr. Davis. Why, certainly, and thank you for the question,
    Senator.
        My mind goes to kind of two things. No. 1, not only am I a
    developer, but I also do mitigation banks, and so you know, the
    concept behind a mitigation bank is that you go and you find
    land that is in distress; it is of regional consequence; it is
    land that hasn't been taken care of, and that through
    enhancement, creation, and preservation, you lift the
    environment up, and you create it back to the way it would have
    been kind of pre-industrial revolution, as it were.
        When we do that, we create these mitigation banks, and then
    developers like your constituents will often buy credits from
    us. Part of the reason that is so expensive is, this goes to
    the second part of your question, I think, part of the reason
    it is so expensive, is one of the banks that I did, about 1,000
    acres, it took me 10 years and over $1 million just to create,
    enhance, and preserve wetlands.
        And so those dollars then have to bubble up to the cost of
    the mitigation credit. And that is the reason why these costs
    can be so egregious, as your constituents have noticed.
        Then, second, the other thing I would say is it happens to
    us often when we are doing developments. The overreach that we
    experience from regulators interpreting the rule prior to the
    most recent clarifications is overwhelming. It is absolutely
    overwhelming. We spend hundreds of thousands of dollars with
    expert consultants in order to help us identify where the
    wetland line is, and even once we do, the regulators still pull
    it up the hill further.
        When those impacts occur, we have to purchase these
    mitigation credits and do onsite conservation and preservation,
    and the cost just absolutely skyrockets. Finally, that is the
    bottom line. That is the reason why we are struggling with
    housing affordability.
        Senator Braun. Thank you.
        Next question is for Mr. Gaesser. Another reason to be
    hopeful that with this rule, we won't forget where we have come
    from. Less than a year ago, we started a climate caucus within
    the Senate, and I was proud to be the first Republican, as a
    life-long conservationist, to do that. And we have actually got
    a bill that came out of the gate, bipartisan, the Growing
    Climate Solutions Act, which basically is wanting to help
    farmers, ag and trade, to certify their ground to take
    advantage of voluntary and compliance markets that are out
    there.
        So, Mr. Gaesser, my question would be for you, with this
    new rule, do you think you will still do the stewardship
    practices on your home farm, riparian buffers, grass waterways,
    or even further modify your practices to sequester carbon and
    do some of the things that would be rewarded by this bill, will
    this new adjustment from the Trump Administration help you do
    that?
        Mr. Gaesser. Thank you, Senator, and yes. Farmers have
    always been innovative, and we have always been innovative on
    our farm, and that is not going to change. We really do love
    the land, and we want to do the best job that we can to protect
    the soil, clean our water, you know, be more resilient, and
    address the severe weather issues that we continue to have, and
    having more and more all the time.
        So our practices aren't going to change. Our practice of
    innovation is not going to change. Our practices are changing.
    Just as an example in the last 30 years for us, or 40 years,
    you know, we have built terraces and waterways early on, and
    then we transitioned to a no-till 100 percent. Then 10 years
    ago, we began growing cover crops, and we are over half our
    land in cover crops now, owned or rented, is doesn't matter. We
    do it because it is the right thing to do, and it makes sense.
        Farmers are going to continue to do that, and we have more
    and better technology all the time. We need to encourage that
    innovation and that adaptation. We need to encourage our
    companies, you know, to help us with that.
        Our latest thing on our sprayer was exact apply. Each
    nozzle on our new sprayer shuts on and off at exactly the right
    time. There is basically zero overlap. It is just one of the
    things that we do, and we will continue to do that if we are
    allowed to.
        Senator Braun. Thank you so much.
        Senator Barrasso. Thank you, Senator Braun. Senator Cardin?
        Senator Cardin. Thank you, Mr. Chairman, and let me thank
    all of our witnesses. The Clean Water Act for 48 years has been
    so critically important, not just to our environment, but to
    our economy. It is based upon the premise that we need to have
    a clean environment for our health, for our quality of life,
    but also for our economy.
        The Clean Water Act, to me, is a critically important part
    of our legacy, and we need to make sure that it is preserved so
    that we can preserve, protect, and restore our Nation's waters.
        I appreciate the testimony of all three of our witnesses,
    and I don't disagree with your passion and your assessment on
    how farmers or landowners respect the land and environment,
    because I agree with you on that. But I strongly disagree with
    two of you and your assessment of what the Trump
    Administration's regulation will do. Because I think it will
    move us in the wrong direction, and let me tell you why.
        I believe that farmers, I could tell you that Maryland
    farmers do great things to protect the Chesapeake Bay, because
    they recognize that the land is so critically important to
    their way of life. And they want it for future generations. So
    they do the right thing, and they want to do the right thing.
        But when you see Maryland farmers stepping up to the plate
    and doing everything that they need to do, but to have upstream
    problems that counter a lot of the progress that we have made
    in cleaning up the Chesapeake Bay, that Maryland has no control
    over whatsoever. So the proper regulation of the Waters of the
    U.S. becomes a very important part of our commitment to achieve
    the environmental successes that science tells us that we can
    achieve.
        My objection to the Trump regulation is that it is not
    based upon best science. It is a political statement that will
    make it more difficult for us to accomplish our objective for
    our environment.
        Let me just give you one example. You have the nutrient
    goals that we need to achieve in the Chesapeake Bay Partnership
    by 2025. There are six States and D.C. that are all part of
    this coalition. The Chesapeake Bay Program is a program that
    was developed at the local level with buy-in from all
    stakeholders. It is not partisan at all. It is embraced by all
    stakeholders in Maryland. But it requires the Federal
    Government to be an objective umpire to make sure that we all
    achieve what we say we are going to achieve. Without
    establishing the right regulations of the waters that are
    impacted, it makes it more difficult.
        My question to Ms. Roose is that, we have certain
    requirements that we need to accomplish under Section 303(d) of
    the Clean Water Act to restore impaired waters. How will this
    new regulation work? Will it make it more difficult for us to
    achieve those objectives, even though a State does everything
    it needs to do, it can't control what other States are doing?
        Ms. Roose. Good morning, Senator Cardin. Thank you for that
    question. There is clear interplay between where the Clean
    Water Act jurisdiction stops and starts, and how our water
    bodies are going to respond. You are right, in terms of that
    the interState connections here under this rule, interState
    waters are not jurisdictional, just based on that fact alone,
    which is a change from the past. That can complicate cross-
    boundary regulation and protections and collaborative efforts
    along the lines of what you described in the Chesapeake Bay.
        There is also this connection between, in the States that
    do not have the programs to fill the gaps, as I described for
    New Mexico, there's this connection between what happens in the
    meantime. If facilities that had been meeting certain pollutant
    limit requirements for their end-of-pipe discharge no longer
    have to do that under Federal law, and there is not a State law
    to pick it up, we could see more pollutant loads. That is going
    to impact streamwater quality, which is going to cause
    additional impairment.
        So, one thing that that does, it strains already strained
    resources to tackle the existing impaired waters if we have to
    be redirecting and adding additional resources to address
    potentially increasing and new impairments over time as a
    result of fewer protections.
        Senator Cardin. Let me ask you one other question, which
    has not been brought up yet. Fresh streams are a critical
    source for our drinking water. Under this new rule, there will
    be less regulation on some of those streamwaters that go into
    our drinking water, causing additional burdens on making sure
    that we have safe drinking water for the people of this
    Country.
        I can tell you, in Maryland, we already have an
    affordability issue in regard to clean water and safe drinking
    water. What impact will this regulation have on the
    affordability of drinking water? Will it put more pressure on
    the rates in order to make sure that water is safe, again,
    putting pressure on those who perhaps, are least likely to be
    able to afford that increase?
        Ms. Roose. That is a likely scenario, Senator, for a number
    of communities, that if in fact, streamwater quality degrades,
    dirtier water coming into a surface water intake at a drinking
    water utility is more costly to treat. They may need to upgrade
    their systems. We have seen examples of this in our State under
    existing requirements from major disasters and spills.
        If the utility has to increase their treatment, they are
    going to have to incur costs. How do those costs get borne out?
    Many times, we do see it getting passed along to ratepayers,
    and that is absolutely one of the key economic concerns at the
    local level that we identified in our testimony.
        Senator Cardin. Thank you.
        I know my time is expired. I just really want to make one
    last point, and that is, I really do think this new rule will
    provide less certainty rather than more certainty. It is not
    going to end this issue, and that is unfortunate.
        We should have clarified from the Supreme Court decisions
    in regard to certainty. The Obama Rule did that; this rule will
    not. So I am afraid that the certainty that all of us want to
    see is not going to be there.
        Thank you, Mr. Chairman. I appreciate it.
        Senator Barrasso. Thank you very much, Senator Cardin.
        Senator Ernst.
        Senator Ernst. Thank you, Mr. Chair, and as we heard in Mr.
    Gaesser's testimony, the Obama administration's flawed WOTUS
    Rule posed some serious challenges for Iowa's farmers in not
    knowing whether a ditch or a puddle could be subject to Federal
    regulation created confusion, fear, and additional costs.
        In 2015, I was proud to introduce legislation that would
    have nullified the Obama Rule, which gave the Federal
    Government the authority to regulate 97 percent of Iowa's land.
    My bill passed both the House and the Senate with bipartisan
    support, but was ultimately vetoed by President Obama.
        Getting this ill-conceived rule off the books has been one
    of my top priorities since entering office. I was delighted to
    see the Trump Administration finalize the Navigable Waters
    Protection Rule, which provides much-needed predictability and
    certainty for farmers by establishing clear and reasonable
    definitions of what actually qualifies as a Water of the U.S.
        Mr. Gaesser, we will start with you. What challenges, and
    you have mentioned a couple of those, but what challenges did
    the Obama administration's WOTUS Rule cause for farmers like
    you, and can you provide a few more of those examples? You
    mentioned just simply putting in a new fence row would create
    difficulties with permitting. Can you provide some other
    examples?
        Mr. Gaesser. Yes, thank you, Senator.
        Yes, there are lots of examples, but doing, repairing
    drainage tile is one of them. Adding to a livestock facility is
    a big issue. But to me, it was, you know, and then for many of
    us, it was that uncertainty of a Federal overreaching rule that
    had a bureaucrat come and tell you exactly what you needed to
    do, which really did discourage the innovation that I talked
    about. And it has discouraged practices that really did work,
    rather, in lieu of a rule that wasn't practical for our
    conditions on our local farm, or in Iowa, in a lot of cases.
        And we are doing so many things in Iowa and on our farm to
    encourage that innovation, but to clean the water. Our
    Department of Agriculture and Land Stewardship, we are working
    with the Iowa nutrient reduction strategy that has been in
    place for seven, 8 years now, we are making lots of progress
    there.
        And part of that [indiscernible] that I cochaired with
    Secretary Naig is the conservation infrastructure. It is those
    incentives and encouraging for agriculture in our communities
    to clean the water, to protect the soil, to reduce nutrient
    load, all those things. We are making progress, and it allows
    States and local communities to make their decision on how to
    best make that happen.
        Senator Ernst. Yes, thank you, Mr. Gaesser, and I do know
    that when this rule was put into place, I heard from farmers
    and contractors as well because they were in the process of
    actually doing conservation projects on various farms. And they
    didn't even know if they would be allowed to do those
    conservation projects because of the WOTUS Rule. So I
    appreciate your answer.
        In your testimony, Mr. Gaesser, you express support of the
    Navigable Waters Protection Rule, and you did say that it
    provides more clarity, more certainty. How does the new rule
    eliminate that confusion and uncertainty caused by the Obama
    Rule?
        Mr. Gaesser. Well, and overall, regulation from the Federal
    Government really never applies to local issues, you know, and
    that is what I keep coming back with. All these issues are
    local, you know, and if you have a one-size rule or a
    regulation, it doesn't allow us to adapt and to adopt our
    practices, or what we are doing to really address the issue. We
    need to encourage that, those local initiatives, those farm
    initiatives.
        As I said before, one thing that we have learned with two
    decades now of studying with the environmental and the ARMFarm
    Network and Iowa soybeans is that no one size fits all, and
    every farm is different and every watershed. There are 1,600
    HUC 12 watersheds in Iowa, and every watershed can have a
    different practice that works equally well for their water.
    Certainty is what we need, and innovation.
        Senator Ernst. Yes. Thank you, Mr. Gaesser.
        Just finally, very briefly, you know that this current rule
    put in place by the Trump Administration could be undone by
    future administrations, and then, once again, replaced by the
    Obama WOTUS Rule from 2015, or a more extreme version of it.
    Our Country is trying to rebound from COVID-19, and in Iowa, we
    are trying to recover from a devastating derecho. We need to be
    cognizant of the impact of regulations on our farms and
    businesses.
        What would the reinstatement of the Obama WOTUS Rule mean
    for our ag economy?
        Mr. Gaesser. Well, it would be the same uncertainty that we
    have, and you know, we do continue to live in uncertainty.
    Sometimes, you know, we need some help, you know, and we need
    incentives to offset that uncertainty, and create practices and
    learn new practices. So we need that research and we need that
    investment to help us, you know, advance, and address the
    issues that the uncertain weather and the climate issues that
    we are seeing all the time now. We need that help.
        Senator Ernst. Thank you, Ray, very much for joining us
    today. Thank you, Mr. Chair.
        Senator Barrasso. Thank you very much, Senator Ernst.
        Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        I have noticed we seem to be talking a lot more about
    regulatory burden here than we are about clean water. At the
    end of the day, what we really count on is actually having
    clean water.
        Sometimes people like to pollute. Old as time, old as
    mankind. It is cheap, it is easy, it washes down, somebody
    else's problem. So I think that there remains a very important
    role in trying to keep waters clean.
        I note that there is a doctrine, this will be, I guess, a
    question for Ms. Roose. There is a doctrine that once the
    Federal Government chooses to regulate in a certain area, that
    displaces the traditional common law nuisance doctrine that has
    been the law of the Anglo-American tradition back into the
    mists of time.
        Ms. Roose, would it be your view that once that regulatory
    protection is withdrawn, the waters and wetlands that no longer
    enjoy Federal protection would revert to being protected by
    common law nuisance liability and that as a result, downstream
    injured riparian folks can sue for pollution and upstream
    mistreatment?
        Ms. Roose. Thank you, Senator, for that question. It is
    something that I can't speak to definitively, as a legal
    matter, but I think, yes, there are going to be at least, as a
    general matter, people looking at all of the other legal
    availability, legal opportunities that they have to protect
    themselves, their families, their business, from any number of
    things that are out there coming against them, including
    upstream pollution that comes down and onto their property.
        I know that certainly doesn't make up for preventing the
    pollution in the first place, and States that don't have
    readily available programs to roll out and implement to prevent
    the pollution, we are going to see more and more, probably,
    reliance on laws like nuisance laws and other provisions that
    allow people to seek damages when in fact, that is the
    situation they encounter.
        Senator Whitehouse. So let's talk about when that upstream
    problem crosses State lines. The theory of this is that the
    Federal Government will step back and that State regulators
    will step in, and that the water will be protected and we will
    all continue to have safe, clean drinking water. That is the
    theory of the case, but if the effect of a polluting source is
    primarily being felt in one State, but the source is in
    another, how does the polluted State regulate the upstream
    polluter in another State? If EPA won't step in, where do you
    go?
        Ms. Roose. Again, Senator, I would point to, it is a
    complicated interplay between where Clean Water Act
    Jurisdiction comes into that pattern. I am not exactly sure
    what the downstream State, what the remedies would be. That is
    something that I would have to look into and get back to you
    on.
        Senator Whitehouse. But clearly, an individual whose water
    has been polluted in some way, or a municipality that has to
    redo its water treatment system to deal with upstream pollution
    coming from out of State, if they are in Rhode Island and they
    go to the Rhode Island Department of Environmental Management,
    they are not able to get from the Rhode Island Department of
    Environmental Management relief against a Massachusetts
    polluter, are they?
        Ms. Roose. I believe that is true, yes.
        Senator Whitehouse. So that opens up a pretty serious
    problem for interState pollution, particularly if a polluter
    has a lot of clout in the State that has to regulate them and
    can stop that, but the local clean water agency can protect
    him. You could be in a real stuck situation where you can't
    defeat the politics of the polluting State, and you can't get
    relief from your own regulatory agencies, and so you are stuck.
        Can I ask one more question? It is a little bit unrelated.
        Senator Barrasso. Yes, please proceed, Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        I see that Mr. Davis is here, and his testimony says that
    he represents the National Association of Homebuilders. We are
    right now, with Senator Barrasso's active assistance, and
    Senator Carper's, trying to put together an energy bill that we
    hope can get some agreement and move forward. The area of
    contention right now appears to be building efficiency
    measures. I keep hearing that the National Association of
    Homebuilders is actively in against those building efficiency
    measures.
        I know builders in Rhode Island and around the world who
    actually are efficiency builders. That is their work. You have
    a whole group of contractors for whom this is their business.
    So it is strange that the organization would be against it.
        Second, as you update building codes to meet new efficiency
    standards, it seems to me that that actually creates work for
    the industry as new windows, new forms of insulation, new, more
    efficient boilers and so forth, have to be installed.
        So, I am a bit at a loss as to figuring out why the
    National Association of Homebuilders has been the enemy of
    this, when everything that I see about it makes me think that
    it is in your interest to have building efficiency standards.
        Don't you want, as an association, to have America have the
    most efficient buildings? Don't you want the people who you
    serve who build these homes to have the lower utility bills and
    the more efficient outcomes? I am struggling to understand why
    I keep hearing that the National Association of Homebuilders is
    the impediment to that bill.
        Mr. Davis. Yes, thank you for the question. Let me
    apologize ahead of time. I came today to testify about the
    Clean Water Act.
        Senator Whitehouse. I know, and I appreciate that. I said
    that this was off topic.
        Mr. Davis. I appreciate that.
        Senator Whitehouse. I understand.
        Mr. Davis. I just wanted to apologize to say that I am not
    really prepared to answer that. I think it is a great question;
    I think you deserve an answer. I am sure that the National
    Homebuilders can followup with you on that.
        But I would love to just also speak to your other comment
    around clean water, because really, I mean, that is my passion,
    that is what I was here today to talk about. You brought up a
    couple of points about how the areas that would no longer be
    captured by the jurisdiction of the Corps and the EPA, how are
    they regulated.
        So I just did want to speak to that, just real quickly, you
    know, I from Florida. I do work in Florida and Georgia and the
    Southeast. I can tell in emphatically that the State and local
    government is every bit on top of every square inch of
    wetlands, whether they are jurisdictional or not. So we go
    through the same rigorous processes at the State level with the
    water management districts, with the DEP, with local
    governments, we have to account for all of our runoff, 100
    percent of our runoff. Not only do we have to account for it,
    but we have to attenuate it, and we have to treat it. So we are
    held accountable for what it looks like both pre-development
    and post-development.
        So I came here to just share, all I can do is share from my
    perspective. I can't talk about the other witnesses, but from
    my perspective, clean water will be the in perpetuity in
    Florida. We have the appropriate measures in place outside of
    what the government needs to regulate. I believe that this new
    Trump Rule will actually, it will create some certainty for us.
    It will allow predictability and accountability now at the
    National level, as well.
        Senator Whitehouse. Thank you, Chairman.
        Senator Barrasso. Well, thank you, Senator Whitehouse, and
    thank you Senator Van Hollen. You have been patiently awaiting,
    and we look forward to your questions at this point. Thank you,
    Senator.
        Senator Van Hollen. Thank you, Mr. Chairman, and to the
    Ranking Member, and to all our witnesses.
        I would like to followup a little bit on the points made by
    Senator Cardin with respect to the Bay, and also really
    referenced by Senator Whitehouse and Senator Carper earlier
    regarding the impact of activity outside of one State on
    another.
        The photograph behind me is of the Blackwater National
    Wildlife Refuge in Maryland, one of two national wildlife
    refuges near the Bay and its tributaries. We have an interState
    compact between Maryland and Virginia, the District of
    Columbia, and Pennsylvania, to protect the Bay. It can only
    work if all the parties to that agreement are really enforcing
    its provisions and complying with the nutrient reduction goals.
    The EPA is designated to enforce that.
        We have been having trouble with the current EPA fully
    enforcing those provisions with respect to some of the States,
    especially, right now, the State of Pennsylvania. The
    Susquehanna River runs through Pennsylvania, comes into the
    Chesapeake Bay.
        What this change in the WOTUS Rule would do is take away
    important tools that are needed to help the Federal Government
    and local officials enforce that compact. I appreciate the
    testimony about Florida's active efforts at the State level to
    protect their waters. But when you have a really important and
    essential national estuary like the Chesapeake Bay with more
    than one State involved in its protection, these provisions are
    very important.
        I would just ask Ms. Roose to elaborate on that, because in
    your statement, in your written testimony, you say ephemeral
    streams are the capillaries of watersheds, recharging aquifers
    and delivering water downstream for aquatic life, wildlife, and
    human use. Well, the Chesapeake Bay is downstream from a lot of
    those sources.
        Can you elaborate more on how these proposed changes to the
    rule would make it harder to enforce Clean Water standards in
    order to protect the Chesapeake Bay downstream?
        Ms. Roose. Thank you, Senator. Yes, speaking to the
    interState issues is really important, and I will answer more
    generally. This would apply to the Chesapeake Bay Region and
    other areas.
        One of the advantages of having Federal Clean Water Act
    permits in play, State to State to State, for common
    waterbodies and waterbodies that flow across States, watersheds
    that don't know State lines, is that a downstream State has an
    opportunity to review a permit before it is issued to see if
    that permit is going to put limits in place that will protect
    the downstream State use.
        If the permit in the upstream State is no longer required
    under Federal law, it is maybe being issued under State law,
    then we aren't necessarily, as a downstream State, going to be
    able to be involved in that process, ensure that that permit,
    when issued, is strict and stringent enough to protect not just
    the State waters that it is in, but the waters as they flow
    down into the next State.
        So, the more jurisdictions you have at play, like in the
    Chesapeake Bay Watershed, the more complicated that gets, the
    more interplays that may be lost of having those checks and
    balances to make sure that the protections are effective for
    the entire watershed.
        Senator Van Hollen. Right. I just want to emphasize in the
    case of the Chesapeake Bay, even the existing authorities don't
    seem adequate if you have the Federal regulatory agency, in
    this case, the EPA, not fully using their authorities, which is
    why the State of Maryland, the Chesapeake Bay Foundation, and
    others have filed a lawsuit against the EPA for lack of
    enforcement, and that is with its existing toolbox. This would
    further diminish those tools available.
        I want to point out, because we are talking about the
    intersection of the WOTUS Rules and economic interest, that the
    Maryland Watermen's Association is a party to that lawsuit,
    together with the State of Maryland and the Chesapeake Bay
    Foundation. Because obviously the degradation of the waters of
    the Chesapeake Bay very much harm the interests of the watermen
    and fisheries and oystermen.
        So as we think about the environmental and economic
    impacts, it is important to remember that taking away some of
    these protections not only can result in more environmental
    degradation to the Bay, but have a very negative, harmful
    impact on important industries in the State of Maryland.
        That is just one example. Obviously, you can extend that
    nationally, and the same holds true with respect to States
    trying to protect wetlands as buffers in general, and, as you
    said earlier, Ms. Roose, with respect to the impact of climate
    change.
        This interState component is something that is very
    troubling. A lot of the testimony from the proponents of these
    changes have focused just on activities within a particular
    State. But there's a fundamental question about what recourse
    States like Maryland have without the tools available.
        So, I want to thank all of you for your testimony. I look
    forward to continuing the conversation. I think we all would
    like to see more clarity. That is in everybody's interest. But
    we don't want changes that will take away very important tools
    to protect national and natural treasures like the Chesapeake
    Bay.
        Senator Barrasso. Thank you very much, Senator Van Hollen.
        Senator Carper, do you have any additional questions?
        Senator Carper. Maybe two, if I could, Mr. Chairman.
        Senator Barrasso. Please.
        Senator Carper. Thanks so much.
        The first question, this would be for Ms. Roose again. Ms.
    Roose, if you would, would you just give us an example of the
    kind of facilities that would be subject to fewer pollution
    controls as a result of the Trump Administration's Navigable
    Waters Protection Rule?
        Ms. Roose. Yes, Senator. It is a variety. We will see, and
    speaking of New Mexico, down where we have a significant amount
    of waters that lose jurisdiction, we may have a wider range of
    facilities.
        But we are talking about hard rock mines that are
    disturbing significant amounts of land using chemicals to
    extract materials, we are talking about municipal wastewater
    treatment plants, private wastewater treatment plants that may
    take on not just domestic sewage but industrial wastewater as
    well, manufacturing facilities, there is a wide range of types
    of facilities.
        Senator Carper. Let me just followup if I could. How would
    the increased pollution you have just described, impact the
    environment and human health?
        Ms. Roose. Well, to name a few impacts, filling wetlands
    and ephemeral streams can degrade water quality throughout a
    watershed. Also, in the arid West, where there is a real
    connection between water quality and water quantity, we could
    see flows diminished that are critical for some of our
    interState compact agreements out here in New Mexico. We could
    see impacts from ephemeral waters that are no longer protected
    and pollutant discharges no longer restricted under Federal
    law, and without a State backup, would not be restricted, then
    causing impairments downstream in the waters that the Trump
    Rule does deem jurisdictional.
        So we could actually see water quality impacts, and we
    expect to, in the State of New Mexico, as a result of this
    rule, where you have got impairments, waters and streams not
    meeting their designated uses, whether that be for recreation,
    drinking water, irrigation for crops, as a result of upstream
    waters no longer having protection.
        Senator Carper. Let me make sure I understood this. How
    will the public know about the impacts that you have just
    described, over time?
        Ms. Roose. That is a good question. One of the cornerstones
    of the Clean Water Act is a monitoring program, where States
    devote resources to get boots on the ground, go out, collect
    data about what the actual water quality in streams, rivers,
    and lakes is, and then assess that data to see whether or not
    those water bodies are meeting their intended uses.
        So we will see over time through the data that is
    generated, these monitoring assessments. We will see whether or
    not impairments do, in fact, go up in certain parts of the
    Country and certain regions and certain localities. Wo we will
    be able to watch that data to understand what the actual water
    quality impacts are as the regulatory landscape comes full
    circle.
        Senator Carper. Thanks. One more last question, if I could,
    for Mr. Davis, again, on clarity under the new rule.
        Administrator Wheeler has promised that this rule would
    enable property owners to make their own determination of what
    is in and what is out when it comes to jurisdictional
    determination. To me, the rule does more than that. It seems to
    put the responsibility on you and your staff to make the
    determination about whether a particular parcel of land you may
    want to develop requires a Federal permit.
        Would you just think about that? My question I guess, would
    be, under this new rule, do you, and maybe even more
    importantly, your attorneys, feel confident that if you walked
    your property and determined whether a Federal permit is or is
    not required to develop some part of that land, that you may
    have gotten it right?
        Mr. Davis. Yes, sir, great question, and thank you. My
    reaction to that would be, as a developer, I rely on
    consultants often. Some of my best friends are scientific
    consultants and so forth, and so under the new rule, we are
    still going to have scientists out there looking at the
    projects, because remember, not only are we concerned about
    jurisdictional wetlands, but we are also concerned about State
    wetlands as well.
        So the DEP, the DNRs, the water management districts, they
    are still requiring that we go out there and we flag these
    wetlands, and we understand what resources that we have on our
    projects.
        So for me personally, it is not that we are now going to
    not be concerned about certain wetlands that fall outside of
    the jurisdiction, but rather it is more about having certainty
    on where this jurisdictional line ends and where the State
    picks up. So for us, this rule is about clarity. So for me, I
    would have no intention on necessarily doing this without
    consultants, but it will absolutely provide the clarity that we
    need and avoid some of the delays that we are experiencing.
        Senator Carper. Thank you.
        Thanks very much, and thanks to all of our witnesses. Let
    me just conclude, Mr. Chairman, I would ask unanimous consent
    that several items be included in the record, please.
        Senator Barrasso. Without objection.
        [The referenced information follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. As well, I ask unanimous consent to enter
    into the record letters of support for today's hearing from the
    National Stone, Sand, and Gravel Association, and the Waters
    Advocacy Council, which includes members from the retail,
    energy, transportation, construction, and many other sectors.
        [The referenced information follows:]
        Senator Carper. Can I just mention one last thing? One of
    the things that the Chairman and I and members of this
    committee, Democrat and Republican, have worked on, is
    legislation dealing with hydrofluorocarbons and trying to phase
    them down over the next 15 years or so. I am very proud of the
    bipartisan products that we developed. Hopefully, it is going
    to be included in the energy legislation that was referenced
    earlier by Senator Whitehouse.
        A good friend of the Chairman, and a pretty good friend of
    mine now, is a fellow from Wyoming, who is Assistant Secretary
    of the Department of the Interior, and he has a saying that he
    shared with us here in this room, and it is that bipartisan
    solutions are lasting solutions, that is what he said.
    Bipartisan solutions are lasting solutions.
        On this issue, we have the issue of clean water, Waters of
    the U.S., navigable waters, navigable rivers, and so forth. We
    have a situation where we have one administration coming forth
    with one rule, and then a new administration coming forth with
    another rule. We are going to have an election on November 3d,
    and that might even be changed, and who is going to be living
    and working out of the White House. And we face the prospect of
    doing it again. It is almost like ping-pong.
        I don't know if it is unrealistic, but wouldn't it be nice
    if we could somehow find the middle. I like to quote Ted
    Kennedy when I was new in the Senate. I asked him, I said to
    him, why, Senator Kennedy, a very liberal Democrat, you know,
    all these Republicans in the Senate, they always want you to be
    their lead Democrat on bipartisan legislation that they are
    introducing. And I said, why do they always want you to be
    their lead Democrat?
        And I will never forget what he said. He said, ``I am
    always willing to compromise on policy; I am never willing to
    compromise on principle.'' Always willing to compromise on
    policy, never willing to compromise on principle. At the end of
    the day, I think, we probably aren't that far apart in agreeing
    on the principles. We are struggling, at least through these
    regulatory processes, coming together on the policies.
        This issue is not going to go away; we are going to have an
    opportunity here to probably to revisit in a new Congress,
    maybe with a new administration. These are important issues,
    and I hope that we can just bring our best efforts to bear as
    we have with hydrofluorocarbons and climate change, and get us
    to a better place. Thank you.
        Senator Barrasso. Well, thanks for your continued
    partnership, friendship, and leadership. Thank you.
        Thanks to all three of our witnesses today. It was a very
    productive hearing. I am very grateful for all of you. We had
    11 different members participating in the hearing today. Some
    may have additional questions that they will submit to you in
    writing, so we will keep the hearing record open for 2 weeks,
    and we would appreciate your response to those questions.
        Thank you all again for a very informative hearing today.
    With that, this hearing is adjourned.
        [Whereupon, at 11:37 a.m., the hearing was adjourned.

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