[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





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        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:]


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    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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