[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
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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.
[all]