[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
THE CLEAN WATER ACT AT FIFTY: HIGHLIGHTS
AND LESSONS LEARNED FROM A HALF CEN-
TURY OF TRANSFORMATIVE LEGISLATION
=======================================================================
(117-59)
REMOTE HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 20, 2022
__________
Printed for the use of the
Committee on Transportation and Infrastructure
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online at: https://www.govinfo.gov/committee/house-
transportation?path=/browsecommittee/chamber/house/committee/
transportation
__________
U.S. GOVERNMENT PUBLISHING OFFICE
49-438-PDF WASHINGTON : 2022
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
PETER A. DeFAZIO, Oregon, Chair
SAM GRAVES, Missouri ELEANOR HOLMES NORTON,
ERIC A. ``RICK'' CRAWFORD, Arkansas District of Columbia
BOB GIBBS, Ohio EDDIE BERNICE JOHNSON, Texas
DANIEL WEBSTER, Florida RICK LARSEN, Washington
THOMAS MASSIE, Kentucky GRACE F. NAPOLITANO, California
SCOTT PERRY, Pennsylvania STEVE COHEN, Tennessee
RODNEY DAVIS, Illinois ALBIO SIRES, New Jersey
JOHN KATKO, New York JOHN GARAMENDI, California
BRIAN BABIN, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
GARRET GRAVES, Louisiana Georgia
DAVID ROUZER, North Carolina ANDRE CARSON, Indiana
MIKE BOST, Illinois DINA TITUS, Nevada
RANDY K. WEBER, Sr., Texas SEAN PATRICK MALONEY, New York
DOUG LaMALFA, California JARED HUFFMAN, California
BRUCE WESTERMAN, Arkansas JULIA BROWNLEY, California
BRIAN J. MAST, Florida FREDERICA S. WILSON, Florida
MIKE GALLAGHER, Wisconsin DONALD M. PAYNE, Jr., New Jersey
BRIAN K. FITZPATRICK, Pennsylvania ALAN S. LOWENTHAL, California
JENNIFFER GONZALEZ-COLON, MARK DeSAULNIER, California
Puerto Rico STEPHEN F. LYNCH, Massachusetts
TROY BALDERSON, Ohio SALUD O. CARBAJAL, California
PETE STAUBER, Minnesota ANTHONY G. BROWN, Maryland
TIM BURCHETT, Tennessee TOM MALINOWSKI, New Jersey
DUSTY JOHNSON, South Dakota GREG STANTON, Arizona
JEFFERSON VAN DREW, New Jersey COLIN Z. ALLRED, Texas
MICHAEL GUEST, Mississippi SHARICE DAVIDS, Kansas, Vice Chair
TROY E. NEHLS, Texas JESUS G. ``CHUY'' GARCIA, Illinois
NANCY MACE, South Carolina CHRIS PAPPAS, New Hampshire
NICOLE MALLIOTAKIS, New York CONOR LAMB, Pennsylvania
BETH VAN DUYNE, Texas SETH MOULTON, Massachusetts
CARLOS A. GIMENEZ, Florida JAKE AUCHINCLOSS, Massachusetts
MICHELLE STEEL, California CAROLYN BOURDEAUX, Georgia
Vacancy KAIALI`I KAHELE, Hawaii
MARILYN STRICKLAND, Washington
NIKEMA WILLIAMS, Georgia
MARIE NEWMAN, Illinois
TROY A. CARTER, Louisiana
SHEILA CHERFILUS-McCORMICK,
Florida
Subcommittee on Water Resources and Environment
GRACE F. NAPOLITANO, California,
Chair
DAVID ROUZER, North Carolina JARED HUFFMAN, California
DANIEL WEBSTER, Florida EDDIE BERNICE JOHNSON, Texas
JOHN KATKO, New York JOHN GARAMENDI, California
BRIAN BABIN, Texas ALAN S. LOWENTHAL, California
GARRET GRAVES, Louisiana TOM MALINOWSKI, New Jersey
MIKE BOST, Illinois CHRIS PAPPAS, New Hampshire
RANDY K. WEBER, Sr., Texas CAROLYN BOURDEAUX, Georgia,
DOUG LaMALFA, California Vice Chair
BRUCE WESTERMAN, Arkansas FREDERICA S. WILSON, Florida
BRIAN J. MAST, Florida SALUD O. CARBAJAL, California
JENNIFFER GONZALEZ-COLON, GREG STANTON, Arizona
Puerto Rico ELEANOR HOLMES NORTON,
NANCY MACE, South Carolina District of Columbia
SAM GRAVES, Missouri (Ex Officio) STEVE COHEN, Tennessee
SHEILA CHERFILUS-McCORMICK,
Florida
PETER A. DeFAZIO, Oregon (Ex
Officio)
CONTENTS
Page
Summary of Subject Matter........................................ vii
STATEMENTS OF MEMBERS OF THE COMMITTEE
Hon. Grace F. Napolitano, a Representative in Congress from the
State of California, and Chair, Subcommittee on Water Resources
and Environment, opening statement............................. 1
Prepared statement........................................... 3
Hon. David Rouzer, a Representative in Congress from the State of
North Carolina, and Ranking Member, Subcommittee on Water
Resources and Environment, opening statement................... 4
Prepared statement........................................... 9
Hon. Peter A. DeFazio, a Representative in Congress from the
State of Oregon, and Chair, Committee on Transportation and
Infrastructure, opening statement.............................. 10
Prepared statement........................................... 11
Hon. Sam Graves, a Representative in Congress from the State of
Missouri, and Ranking Member, Committee on Transportation and
Infrastructure, prepared statement............................. 67
WITNESSES
Joaquin Esquivel, Chair, California State Water Resources Control
Board, oral statement.......................................... 13
Prepared statement........................................... 14
Michael D. Witt, General Counsel, Passaic Valley Sewerage
Commission, Newark, New Jersey, on behalf of the National
Association of Clean Water Agencies, oral statement............ 17
Prepared statement........................................... 19
Stefanie K. Tsosie, Senior Attorney, Tribal Partnerships Program,
Earthjustice, oral statement................................... 21
Prepared statement........................................... 22
David P. Ross, Esq., Partner, Troutman Pepper LLP, oral statement 26
Prepared statement........................................... 28
Laura Gatz, Environmental Policy Analyst, Congressional Research
Service, oral statement........................................ 30
Prepared statement........................................... 32
SUBMISSIONS FOR THE RECORD
Letter of September 20, 2022, to Hon. Michael S. Regan,
Administrator, U.S. Environmental Protection Agency and Hon.
Michael L. Connor, Assistant Secretary of the Army for Civil
Works, U.S. Department of the Army, from 15 Ranking Members of
the House of Representatives, Submitted for the Record by Hon.
David Rouzer................................................... 6
Statement of American Rivers, Submitted for the Record by Hon.
Carolyn Bourdeaux.............................................. 51
Submissions for the Record by Hon. Doug LaMalfa:
Article entitled, ``The reality of legal weed in California:
Huge illegal grows, violence, worker exploitation and
deaths,'' by Paige St. John, Staff Writer, Los Angeles
Times, September 8, 2022................................... 67
Article entitled, ``Nobody knows how widespread illegal
cannabis grows are in California. So we mapped them,'' by
Paige St. John, Staff Writer, Los Angeles Times, September
8, 2022.................................................... 76
Article entitled, ``Illegal pot shops in California booming
in plain sight. Police raids do little to stop them,'' by
Matthew Ormseth, Staff Writer, Los Angeles Times, September
13, 2022................................................... 78
APPENDIX
Questions from Hon. John Garamendi to Joaquin Esquivel, Chair,
California State Water Resources Control Board................. 83
Questions from Hon. Chris Pappas to Michael D. Witt, General
Counsel, Passaic Valley Sewerage Commission, Newark, New
Jersey, on behalf of the National Association of Clean Water
Agencies....................................................... 84
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
September 15, 2022
SUMMARY OF SUBJECT MATTER
TO: Members, Subcommittee on Water Resources and
Environment
FROM: Staff, Subcommittee on Water Resources and
Environment
RE: Subcommittee Hearing on ``The Clean Water Act at
Fifty: Highlights and Lessons Learned from a Half Century of
Transformative Legislation''
PURPOSE
The Subcommittee on Water Resources and Environment will
meet on Tuesday, September 20, 2022, at 10:00 a.m. EDT in the
Rayburn House Office Building, Room 2167, and via Zoom, to
receive testimony on ``The Clean Water Act at Fifty: Highlights
and Lessons Learned from a Half Century of Transformative
Legislation.'' The purpose of this hearing is to examine the
Clean Water Act in its 50th year of enactment and how the
United States is progressing towards its original intent and
goals.
BACKGROUND: OVERVIEW OF THE CLEAN WATER ACT
The Federal Water Pollution Control Act Amendments of 1972,
more commonly known as the Clean Water Act (CWA), is the
federal government's primary statutory tool for protecting the
quality of the nation's surface waters and wetlands.\1\
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\1\ Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq.
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The basis of the law was enacted in 1948--then called the
Federal Water Pollution Control Act--and established the first
comprehensive statement of federal interest in clean water
programs.\2\ Yet, at the time, water pollution continued to be
viewed as primarily a state and local problem and
contemporaneous federal legislation contained ``no federally
required goals, objectives, limits or even guidelines [and]
federal involvement was limited to matters involving interstate
waters and only with the consent of the state in which the
pollution originated.'' \3\ However, even as the federal role
expanded over time to include additional intrastate and
interstate waters, there was ``mounting frustration over the
slow pace of pollution cleanup efforts,'' \4\ including time-
consuming enforcement procedures, flawed approaches to
determining water quality, and a lack of universal
implementation of pollution control technologies, such as
sewage treatment.\5\
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\2\ See Gatz, Laura, ``Clean Water Act: A Summary of the Law,''
Congressional Research Service (RL 30030) updated October 18, 2016.
\3\ Id.
\4\ Id. at 2.
\5\ Id. In the 1950s and 1960s, water pollution control programs
that amended the 1948 statute extended the federal role and federal
jurisdiction to include navigable intrastate and interstate waters, as
well as established a program of water quality standards requiring
states to set standards for interstates waters to determine actual
pollution levels and control requirements.
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Due to this limited progress and with bipartisan consensus
on the importance of ensuring clean, reliable water, Congress
significantly reorganized and expanded the federal clean water
authority in 1972.\6\ This overwhelmingly popular bill, enacted
by a 10-to-1 bipartisan override of former President Nixon's
veto, is now commonly referred to as the Clean Water Act.\7\
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\6\ Id. According to the Congressional Research Service (CRS), the
1972 Clean Water Act did not continue the basic components of previous
laws as much as it set up new ones. It set optimistic and ambitious
goals, required all municipal and industrial wastewater to be treated
before being discharged into waterways, increased federal assistance
for municipal treatment plant construction, strengthened and
streamlined enforcement, and expanded the federal role while retaining
the responsibility of states for day-to-day implementation of the law.
\7\ See https://www.senate.gov/legislative/vetoes/NixonR.htm. See
also 33 U.S.C. Sec. 1251 et seq.
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The 1972 CWA established two national goals: the
elimination of discharge of pollutants into navigable waters by
1985; and, wherever attainable, the achievement of an interim
goal of water quality which provides for the protection and
propagation of fish, shellfish, and wildlife, and provides for
recreation in and on the water by July 1, 1983 (also known as
``swimmable and fishable waters'').\8\ While the nation has
made great progress towards these goals, neither has been met
in all waters yet.\9\
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\8\ See Gatz; Clean Water Act, Section 101.
\9\ See generally, National Water Quality Inventory (https://
www.epa.gov/waterdata/national-water-quality-inventory-report-
congress).
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To achieve its goals, the Clean Water Act has two large
areas of emphasis. The first area of emphasis centers on
regulatory provisions that impose progressively more stringent
technology-based (or water quality-based) requirements on
industries and municipalities to reduce or eliminate the
discharge of pollutants and to regulate the discharge of
dredged or fill materials into wetlands.\10\ The second area
focuses on funding provisions that authorize federal financial
assistance for municipal wastewater treatment plant
construction.\11\ Planning and financial and technical
assistance for various regions and issues are also
addressed.\12\
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\10\ See Gatz.
\11\ Id.
\12\ Id.
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CLEAN WATER ACT PERMITTING PROGRAMS
REGULATION OF POINT SOURCES \13\
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\13\ See generally, National Pollutant Discharge Elimination System
(NPDES) Basics, https://www.epa.gov/npdes/npdes-permit-basics.
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Industries must meet technology-based standards based on
the type of pollutant discharged and the age of the facility
(e.g., ``best available technology achievable''). For
municipalities, secondary treatment (defined in regulation as
an 85 percent reduction in certain conventional pollutant
concentrations as well as maintaining pH levels within a
certain range) must be achieved.\14\ Additional limitations may
also be imposed on dischargers where pollution levels in
receiving waters continue to be too high to protect the
receiving water's designated uses; this is accomplished through
water quality-based effluent limitations.\15\
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\14\ Secondary Treatment Regulation, 40 CFR Sec. 133.102 https://
www.ecfr.gov/current/title-40/chapter-I/subchapter-D/part-133.
\15\ Water Quality Standards, 40 CFR Sec. 131.22 EPA promulgation
of water quality standards.
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The Environmental Protection Agency (EPA) is responsible
for defining what the required level of treatment is for
municipalities and for each type of industry to meet its
standards.\16\ EPA also must develop water quality criteria,
specifying the maximum concentrations of pollutants permitted
for different designated uses of waters.\17\
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\16\ https://www.epa.gov/npdes/npdes-permit-basics.
\17\ Clean Water Act; See Gatz.
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These requirements are implemented and enforced through
permits. All point source dischargers that discharge pollutants
directly into jurisdictional waters must obtain a permit for
that discharge either from EPA or a state if the state has an
EPA-approved permitting program.\18\ Permits are based on both
technology requirements and water quality impacts and set the
concentration and amount of pollutants allowed to be
discharged.\19\
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\18\ https://www.epa.gov/npdes/npdes-permit-basics.
\19\ https://www.epa.gov/npdes/npdes-permit-basics.
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A state may implement its own permit program in lieu of the
federal program if it meets specified requirements and has EPA
approval of the state's program.\20\ Currently, 47 states have
EPA-approved point source discharge permit programs under
section 402 of the Clean Water Act.\21\
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\20\ https://www.epa.gov/npdes/npdes-state-program-authorization-
information.
\21\ See generally, NPDES State Program Authority, https://
www.epa.gov/npdes/npdes-state-program-authority.
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Indirect dischargers, those that discharge to publicly
owned treatment works (POTWs) rather than directly into waters,
must meet pre-treatment standards similar to those established
for direct industrial discharges because POTWs traditionally
are designed primarily for the treatment of domestic
sewage.\22\ Pre-treatment requirements are either enforced by
the POTW or by state or federal authorities.\23\
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\22\ https://www.epa.gov/npdes/national-pretreatment-program-
overview.
\23\ https://www.epa.gov/npdes/national-pretreatment-program-
overview.
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The Clean Water Act also establishes a program for
regulating stormwater dischargers and regulates discharges from
concentrated animal feeding operations.\24\ The law includes
several enforcement provisions, authorizing administrative,
civil, and criminal penalties, as well as citizen suits.\25\
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\24\ 40 CFR Sec. 412, 68 FR 7269, Feb. 12, 2003 as amended.
\25\ 33 USC Sec. 1319.
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PROGRAMS TO ADDRESS NON-POINT SOURCES OF POLLUTION \26\
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\26\ See generally, 319 Grant Program for States and Territories,
https://www.epa.gov/nps/319-grant-program-states-and-territories.
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Section 319 of the act provides federal financial
assistance, in the form of grants, to encourage and assist
states in the control of nonpoint sources of water pollution.
This provision requires states to identify areas not meeting
water quality standards because of nonpoint sources of
pollution and to develop programs, as necessary, if states are
to receive implementation grants. Notwithstanding the
expiration of the authorization for grants, the nonpoint source
program has continued to receive appropriations for state
implementation efforts.
REGULATION OF DREDGE AND FILL ACTIVITIES IN JURISDICTIONAL WATERS \27\
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\27\ See Gatz; see also generally, Permit Program under CWA Section
404, https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404.
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Section 404 of the Clean Water Act requires a separate type
of permit to dispose of dredged or fill materials in
jurisdictional waters (including wetlands). Disposal activities
in such waters is regulated under this program to include fill
for development, water resource projects (such as dams and
levees), infrastructure development (such as highways and
airports) and mining projects. Section 404 requires a permit
before dredged or fill material may be discharged into waters
of the United States, unless the activity is exempt from
Section 404 regulation (e.g., certain farming and forestry
activities). An individual permit is required for potentially
significant impacts.\28\ Individual permits are reviewed by the
U.S. Army Corps of Engineers (Corps) or an approved state or
Tribal program, which evaluates applications under a public
interest review, as well as the environmental criteria set
forth in the CWA Section 404(b)(1) Guidelines regulations
promulgated by EPA.\29\
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\28\ 33 U.S.C. Sec. 1344(e)(2).
\29\ See id. Today, only the states of Michigan, New Jersey, and
Florida have approved section 404 programs. See also, Clean Water Act
404(b)(1) guidelines, located at 40 CFR 230.
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WASTEWATER INFRASTRUCTURE FINANCING \30\
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\30\ See Gatz; see also, Learn about the Clean Water State
Revolving Fund (CWSRF), https://www.epa.gov/cwsrf/learn-about-clean-
water-state-revolving-fund-cwsrf.
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Titles II and VI of the Clean Water Act provide authority
for grants to states and municipalities and the establishment
of clean water state revolving loan funds, respectively, for
the construction of treatment works. The Construction Grants
program contained in Title II was phased out in favor of state
revolving loan funds in the Water Quality Act of 1987 (PL 100-
4). For the Construction Grants program, Congress appropriated
approximately $60 billion over the life of the program.\31\
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\31\ See https://www.epa.gov/enviro/igms-construction-grants-
overview.
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Through the Clean Water State Revolving Fund (``CWSRF'')
program, each state and Puerto Rico maintain revolving loan
funds to provide low-cost financing for approved water quality
infrastructure projects. Funds to establish or capitalize the
CWSRF programs are provided through federal capitalization
grants and state matching funds (generally equal to 20 percent
of federal grants). State revolving funds (``SRFs'') are
available to make low-interest loans, buy or refinance local
debt, subsidize or insure local bonds, make loan guarantees,
act as security or guarantee of state debt, earn interest, and
pay administrative expenses. SRF monies may also be used to
implement other water pollution control programs such as
nonpoint source pollution management and the national estuary
program.\32\
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\32\ 33 U.S.C. Sec. 1383.
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In 2021, Congress reauthorized federal appropriations for
the Clean Water SRF program through enactment of the
Infrastructure Investment and Jobs Act (IIJA).\33\ The IIJA
provided $11.7 billion over five years for the Clean Water SRF
program, and an additional $1 billion for the Clean Water SRF
to specifically address ``emerging contaminants''.
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\33\ Pub. L. 117-58; see also, ``Fact Sheet: EPA & The Bipartisan
Infrastructure Law'' (https://www.epa.gov/infrastructure/fact-sheet-
epa-bipartisan-infrastructure-law).
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OTHER AUTHORITIES
The Clean Water Act contains several targeted programs and
authorities that were designed to improve water quality
throughout the country.
The National Estuary Program authorizes federal financing
for the development and implementation of comprehensive
conservation and management plans for improving the overall
ecological health of the nation's estuaries.\34\
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\34\ https://www.epa.gov/nep/overview-national-estuary-program.
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In addition, the CWA authorizes several targeted programs
for improving regional water quality in the areas of the
Chesapeake Bay, Great Lakes, Long Island Sound, Lake Champlain,
Lake Pontchartrain Basin, and for the management of wet weather
discharges and stormwater best management practices.\35\
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\35\ 33 U.S.C. Sec. 1267 et seq.
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The IIJA provided renewed federal appropriations for
several Clean Water Act authorities, including $1.7 billion for
regional CWA programs and $132 million for the National Estuary
Program.\36\
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\36\ See Pub. L. 117-58. See also, ``Fact Sheet: EPA & The
Bipartisan Infrastructure Law'' (https://www.epa.gov/infrastructure/
fact-sheet-epa-bipartisan-infrastructure-law).
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CURRENT ISSUES
The successes and future challenges of the Clean Water Act
can be succinctly stated. In 1972, only one-third of the
nation's waters met water quality goals. Today, while two-
thirds of those waters do meet water quality goals, one-third
still remain impaired.\37\
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\37\ See generally, National Water Quality Inventory (https://
www.epa.gov/waterdata/national-water-quality-inventory-report-
congress).
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Much of the success of the Clean Water Act can be
attributed to the increased number of municipal sewage
treatment plants constructed to address point source pollution.
From 1972 to the present, the federal government invested over
$100 billion in construction of these systems, with the initial
$60 billion provided by the initial Clean Water Act
construction grant program, and an additional approximately $50
billion in federal capitalization grants through the Clean
Water SRF program.\38\ In addition, the Clean Water Act's
permit programs have substantially reduced pollution from
municipalities and industrial dischargers, further improving
water quality across the nation.
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\38\ See Ramseur, Jonathan, Federally Supported Projects and
Programs for Wastewater, Drinking Water, and Water Supply
Infrastructure, Congressional Research Service (R46471), updated August
2, 2022.
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However, future challenges remain. First, according to
EPA's most recent Clean Water Needs Survey, total capital
wastewater and stormwater treatment and collection needs for
the nation are $271 billion.\39\ This includes capital needs
for publicly owned wastewater pipes and treatment facilities
($197.8 billion), combined sewer overflow correction ($48.0
billion), stormwater management ($19.2 billion), and recycled
water treatment and distribution ($6.1 billion).\40\
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\39\ See https://www.epa.gov/cwns/clean-watersheds-needs-survey-
cwns-2012-report-and-data.
\40\ Id.
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In addition, nonpoint sources of pollution continue to be
identified by states as a leading source of impairment to the
nation's rivers, streams, and lakes.\41\ Nonpoint source
pollution comes from diffuse sources, rather than a more
distinct point source like a discharge pipe.\42\ Nonpoint
pollution sources include agricultural and urban runoff,
silviculture, and construction, transportation, and
recreational activities.\43\
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\41\ See https://www.epa.gov/nps/basic-information-about-nonpoint-
source-nps-pollution.
\42\ Id.
\43\ Id.
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Further, there are ongoing questions regarding the
jurisdictional scope of the Clean Water Act following two U.S.
Supreme Court decisions, Solid Waste Agency of Northern Cook
County v. Corps of Engineers (``SWANCC'') (2001) and Rapanos et
ux., et. al. v. United States (``Rapanos'') (2006), as well as
changes to agency regulations and guidance documents
interpreting the scope of Clean Water Act jurisdiction.\44\ The
Supreme Court also decided to take up a case this term
concerning what is considered the definition of ``water of the
United States'' under the Clean Water Act and granted
certiorari to Michael Sackett, et ux., Petitioners v.
Environmental Protection Agency, et al. (``Sackett'').\45\ Oral
arguments will be heard on October 3, 2022.
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\44\ See generally, Gatz, Laura, Redefining Waters of the United
States (WOTUS): Recent Developments, Congressional Research Service
(R42967), updated July 8, 2022.
\45\ Sackett v. EPA, Case No. 21-454.
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In addition, in the current Congress, the subcommittee has
held several hearings and meetings related to other ongoing
challenges to addressing local water quality including the
issue of emerging contaminants, including PFAS-related
chemicals \46\ and the issue of harmful algal blooms.\47\
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\46\ See generally, Subcommittee hearing on ``Emerging
Contaminants, Forever Chemicals, and More: Challenges to Water Quality,
Public Health, and Communities'', October 6, 2021, https://
transportation.house.gov/committee-activity/hearings/emerging-
contaminants-forever-chemicals-and-more-challenges-to-water-quality-
public-health-and-communities.
\47\ See generally, Subcommittee roundtable on ``Local
Perspectives: Combating Harmful Algal Blooms in the Garden State'',
July 22, 2022, https://transportation.house.gov/committee-activity/
hearings/local-perspectives-combating-harmful_algal-blooms-in-the-
garden-state.
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WITNESS LIST
Joaquin Esquivel, Chair, State Water Resources
Control Board, California
Michael Witt, General Counsel, Passaic Valley
Sewerage Commission, Newark, New Jersey (on behalf of the
National Association of Clean Water Agencies)
Stefanie Tsosie, Senior Attorney, Tribal
Partnerships Program, Earthjustice
Dave Ross, Esq., Partner, Troutman Pepper LLP
Laura Gatz, Analyst, Congressional Research
Service
THE CLEAN WATER ACT AT FIFTY: HIGHLIGHTS AND LESSONS LEARNED FROM A
HALF CENTURY OF TRANSFORMATIVE LEGISLATION
----------
TUESDAY, SEPTEMBER 20, 2022
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:02 a.m. in
room 2167 Rayburn House Office Building and via Zoom, Hon.
Grace F. Napolitano (Chair of the subcommittee) presiding.
Members present in person: Mr. DeFazio, Mr. Huffman, Mr.
Garamendi, Ms. Bourdeaux, Mr. Carbajal, Ms. Norton, Mr. Rouzer,
Mr. Katko, Dr. Babin, Mr. Graves of Louisiana, and Mr. Bost.
Members present remotely: Mrs. Napolitano, Ms. Johnson of
Texas, Mr. Malinowski, Mr. Stanton, Mrs. Cherfilus-McCormick,
Mr. LaMalfa, and Miss Gonzalez-Colon.
Mrs. Napolitano. Good morning, everybody, ladies and
gentlemen. I call this hearing to order.
Today, we are here to celebrate the 50th anniversary of the
passage of the Clean Water Act.
Let me begin by asking unanimous consent that the chair be
authorized to declare a recess at any time during today's
hearing.
Without objection, so ordered.
I also ask unanimous consent that Members not on the
subcommittee be permitted to sit with the subcommittee at
today's hearing and ask questions.
And without objection, so ordered.
As a reminder, please keep your microphone muted unless
speaking. Should I hear inadvertent noise, I will request that
the Member please mute their microphone.
And, finally, to submit a document into the record, please
have your staff email it to [email protected].
Today, the committee will receive testimony from a number
of perspectives on the Clean Water Act and its impacts over the
last 50 years. When Congress enacted this law in 1972, it
recognized that the Nation's waterways were in crisis, and for
too long, we had neglected our moral and financial
responsibility to keep our waterways clean and safe.
In 1972, only one-third of the Nation's waters met water
quality goals. Through the investments in clean water
infrastructure, such as the historic clean water funding in the
Bipartisan Infrastructure Law and rigorous, science-based water
quality protections, we have made significant improvements.
However, the job is not done.
Today, 50 years later, we have failed to achieve the act's
goal of making the waters, all waters, both fishable and
swimmable, with one-third of our waters remaining impaired.
Failing to meet these quality standards goals does not mean
that the act has been a failure. Far from it. New investments
in water treatment and enforcing water quality standards means
that more and more waterways will continue to improve.
For example, thanks to Federal clean water investments and
local support, local water bodies such as the Anacostia River
in the Nation's Capital, once described as the most polluted
river in the United States, may be swimmable and fishable
within the next few years.
In California, I have supported the Los Angeles River
revitalization plan and improvements to the San Ganbriel River.
Because of collaborative work between locals, the State of
California, and the Federal Government, we affirmed the Los
Angeles River as a protected, navigable waterway under the
Clean Water Act over a decade ago. Work continues on
environmental restoration of the Los Angeles River.
Many of today's witnesses have years of experience in
working to protect waterways and provide for public health and
safety. We will hear how they work, both at the State level as
well as locally, to meet the goals and objectives of the Clean
Water Act to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.
Under the Clean Water Act, the States play a critical role
in co-administering the law and taking a leading role in
protecting both locally important waters as well as the health
of upstream and downstream waters from neighboring States. This
Federal and State partnership has been a success for the last
50 years, and it also has been the foundation to the
improvements in our Nation's water quality.
States also play a critical role in managing the Clean
Water Act State Revolving Funds that provide investments for
the construction of water treatment projects. From 1972 to the
present, the Federal Government has invested over $100 billion
in construction of sewage treatment plants, both in grants and
through the Clean Water SRF program.
When the Clean Water Act was enacted, these clean water
infrastructure investments were the largest nonmilitary public
works program since the Interstate Highway System. Yet, because
the investments are often out of sight and therefore out of
mind, we often forget about water infrastructure investments
until there is a problem or crisis, such as we have recently
seen in Jackson, Mississippi.
Earlier this year, Congress passed the bipartisan
Infrastructure Investment and Jobs Act, which provided an
additional $11.7 billion over the next 5 years for the Clean
Water SRF, as well as an additional $1 billion specifically to
address emerging contaminants. These investments make a big
difference in cleaning up waterways and for public safety, as
well as anything else that comes along. We will hear testimony
today on their impacts.
We will also hear about the important work of ensuring that
all communities, including Tribal nations, benefit from the
protections of the Clean Water Act. For too much of our
Nation's history, disadvantaged communities are at the front
lines of pollution and contamination. Environmental injustice
takes many forms and impacts many different communities.
Today also marks a reflection point on the importance of
Federal leadership in protecting our Nation's health, its
economy, and the health of our water-based environment. In the
past 2 years, the Biden administration has taken steady,
scientifically based actions to restore the bedrock
environmental laws that protect our water, our air, our
environment, and our health.
And as I said numerous times before, the previous
administration ignored the bipartisan traditions of Presidents
dating back to President Ronald Reagan in seeking to roll back
Clean Water Act protections. Fortunately, most of these
decisions were quickly overturned by Federal courts as
fundamentally flawed or in violation of Federal law, and those
that were not are being revisited by the current
administration.
However, what the past few years have shown is that
leadership matters. The successes we have fought for over the
past 50 years need to be constantly protected and extended.
That is the task for the next 50 years.
I want to welcome all our witnesses here this morning, and
I am grateful for your willingness to share your views and your
perspectives on the last 50 years of the Clean Water Act.
I now yield to my great partner and great ranking member,
Mr. Rouzer, for any comments and thoughts he might have on the
matter.
[Mrs. Napolitano's prepared statement follows:]
Prepared Statement of Hon. Grace F. Napolitano, a Representative in
Congress from the State of California, and Chair, Subcommittee on Water
Resources and Environment
Today, the committee will receive testimony from a number of
perspectives on the Clean Water Act and its impacts over the last 50
years. When Congress enacted this law in 1972, it recognized that the
nation's waterways were in crisis, and for too long, we had neglected
our moral and financial responsibility to keep our waterways clean and
safe.
In 1972, only one-third of the nation's waters met water quality
goals. Through investments in clean water infrastructure--such as the
historic clean water funding in the Bipartisan Infrastructure Law--and
rigorous, science-based water quality protections, we have made
significant improvements.
However, the job is not yet done.
Today, 50 years later, we have failed to achieve the Act's goal of
making all waters both fishable and swimmable, with one-third of our
waters remaining impaired.
Failing to meet these water quality goals does not mean that the
act has been a failure. Far from it, new investments in water treatment
and enforcing water quality standards mean that more and more waterways
will continue to improve.
For example, thanks to federal clean water investments and local
support, local water bodies, such as the Anacostia River in the
nation's capital--once described as one of the most polluted rivers in
the United States--may be swimmable and fishable within the next few
years.
In California, I have supported the Los Angeles River
Revitalization Plan and improvements to the San Gabriel River. Because
of collaborative work between locals, the state of California, and the
federal government, we affirmed the Los Angeles River as a protected,
navigable waterway under the Clean Water Act over a decade ago. Work
continues on environmental restoration of the Los Angeles River.
Many of today's witnesses have years of experience in working to
protect waterways and provide for public health and safety. We will
hear about how they work, both at the state level as well as locally,
to meet the goals and objectives of the Clean Water Act to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.
Under the Clean Water Act, states play a critical role in co-
administering the law and take a leading role in protecting both
locally-important waters, as well as the health of upstream and
downstream waters from neighboring states. This federal and state
partnership has been a success for the last 50 years and has been a
foundation to the improvements in our nation's water quality.
States also play a critical role in managing the Clean Water Act
State Revolving Funds that provide investments for the construction of
water treatment projects. From 1972 to the present, the federal
government invested over $100 billion in construction of sewage
treatment plants, both in grants and through the Clean Water SRF
program. When the Clean Water Act was enacted, these clean water
infrastructure investments were the largest, nonmilitary, public works
program since the Interstate Highway System. Yet, because the
investments are often out of sight and therefore out of mind, we often
forget about water infrastructure investments until there is a problem
or crisis, such as we've recently seen in Jackson, Mississippi.
Earlier this year, Congress passed the bipartisan Infrastructure
Investment and Jobs Act, which provided an additional $11.7 billion
over the next five years for the Clean Water SRF, as well as an
additional $1 billion specifically to address emerging contaminants.
These investments make a big difference in cleaning up waterways, and
we will hear testimony today on their impacts.
We will also hear about the important work of ensuring that all
communities, including Tribal nations, benefit from the protections of
the Clean Water Act. For too much of our nation's history,
disadvantaged communities are on the frontlines of pollution and
contamination. Environmental injustice can take many forms and impacts
many different communities.
Today also marks a reflection point on the importance of federal
leadership in protecting our nation's health, its economy, and the
health of our water-based environment. In the past two years, the Biden
administration has taken steady, scientifically-based actions to
restore the bedrock environmental laws that protect our air, our water,
our environment, and our health.
As I have said numerous times, the previous administration ignored
the bipartisan traditions of presidents dating back to President Ronald
Reagan in seeking to roll-back Clean Water Act protections.
Fortunately, most of these decisions were quickly overturned by federal
courts as ``fundamentally flawed'' or in violation of federal law, and
those that were not are being revisited by the current administration.
However, what the past few years have shown is that leadership
matters and the successes we have fought for over the past 50 years
need to be constantly protected and extended. That is the task for the
next 50 years.
I want to welcome all our witnesses here this morning, and I am
grateful for your willingness to share your views and perspectives on
the last 50 years of the Clean Water Act.
I now yield to my great partner in the formulation of a new WRDA
bill, Mr. Rouzer, for any comments and thoughts he might have on this
matter.
Mr. Rouzer. Well, thank you, Chair Napolitano. And I
appreciate your holding this hearing today.
I would also like to thank our witnesses for being with us
today.
In 1972, as has been stated and we all know, Congress
passed the Clean Water Act in an overwhelmingly bipartisan
fashion. Members on both sides of the aisle recognized we had a
major problem with water quality in our Nation's waters and
understood the many benefits that we derive from access to
clean, navigable waters.
North Carolina's Seventh Congressional District, which I am
honored to represent, in fact, is known for beautiful waterways
and beaches that provide significant recreational and economic
benefits. We also have many important water bodies that we rely
on for commerce and drinking water. The Clean Water Act has had
great success in its 50 years protecting these waters in North
Carolina and all around the country.
However, we have yet to reach the ambitious goal Congress
set out in 1972 to make all waters in the United States, quote,
``swimmable and fishable.''
We must recognize that to move forward in achieving this
goal, it is vital for Congress and the Federal Government to
modernize and update the Clean Water Act in a way that is fair
and reasonable to all, including the regulated community, which
is so integral to our economy and, I might add, is so important
to our food and fiber production.
Communities and stakeholders have faced years of regulatory
and legal uncertainty in complying with the act. These
challenges include overreach by some States when using their
section 401 authority under the Clean Water Act to certify that
a project meets water quality standards.
Some States have used this authority to block meaningful
infrastructure projects they are politically opposed to, for
reasons well beyond Clean Water Act goals of water quality.
There is also no greater example of overreach under the
Clean Water Act than with the regulatory nightmare of complying
with and understanding the definition of ``waters of the United
States,'' or ``WOTUS.'' This WOTUS definition is used for
determining who must obtain a section 404 Clean Water Act
permit, which is well-known for being a costly and time-
consuming process.
The WOTUS question has been debated for decades in court,
and the EPA, under varying Presidential administrations, has
issued regulatory definitions of WOTUS that are quite
expansive, which was most definitely the case with the 2015
Obama EPA WOTUS rule.
I am very concerned that this administration plans to issue
a similar rule that would once again place unnecessary burdens
on the communities, farmers, businesses, and industries who
also rely on clean water.
This year, the Supreme Court announced it would be taking
up a case on the definition of WOTUS, which further shows the
enormous impacts these rulemakings have on citizens across the
country.
Now I am joining the ranking member of the full committee
and several other of my Republican colleagues to express our
concerns about this administration's actions on their proposed
rules and to urge the administration to consider the pending
Supreme Court's ruling.
I am looking forward to discussing these important issues
with our panel today and learning how we can work together to
make the Clean Water Act more effective over the next 50 years.
Madam Chair, this morning, Ranking Member Graves, myself,
and several other ranking members of the House committees sent
a letter to the EPA and the Corps on WOTUS, which we all know
is an issue of importance to the Clean Water Act.
And I ask unanimous consent to enter this letter into the
record.
Mrs. Napolitano. So ordered.
[The information follows:]
Letter of September 20, 2022, to Hon. Michael S. Regan, Administrator,
U.S. Environmental Protection Agency and Hon. Michael L. Connor,
Assistant Secretary of the Army for Civil Works, U.S. Department of the
Army, from 15 Ranking Members of the House of Representatives,
Submitted for the Record by Hon. David Rouzer
Congress of the United States,
Washington, DC 20515,
September 20, 2022.
The Honorable Michael S. Regan,
Administrator,
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW,
Washington, DC 20004.
The Honorable Michael L. Connor,
Assistant Secretary of the Army for Civil Works,
U.S. Department of the Army, 108 Army Pentagon, Washington, DC 20310.
Dear Administrator Regan and Assistant Secretary Connor:
We write to bring your attention to West Virginia v. Environmental
Protection Agency (EPA), a recent Supreme Court decision that clarified
the limitations of certain agency action.\1\ Although Article I,
Section 1 of the United States Constitution vests ``all legislative
powers'' in Congress,\2\ the Biden Administration has largely relied on
executive action to advance its radical agenda. For example, in his
first year, President Biden issued more executive orders and approved
more major rules than any recent president.\3\ We are concerned that
such reliance on the administrative state undermines our system of
government. Our Founders provided Congress with legislative authority
to ensure lawmaking is done by elected officials, not unaccountable
bureaucrats.\4\ Given this Administration's track record, we are
compelled to underscore the implications of West Virginia v. EPA and to
remind you of the limitations on your authority.
---------------------------------------------------------------------------
\1\ West Virginia v. EPA, 597 U.S. __ (2022).
\2\ U.S. Const. art. I, Sec. 1.
\3\ See Federal Register, Executive Orders (accessed Aug. 2022),
available at https://www.federalregister.gov/presidential-documents/
executive-orders; see also Deep Dive, How Biden Has Made Policy With
Short-Term, Costly Rules: Charts, Bloomberg Law (May 2022), available
at https://news.bloomberglaw.com/environment-and-energy/how-biden-has-
made-policy-with-short-term-costly-rules-charts.
\4\ See U.S. Const. art I; see also The Federalist No. 51 (James
Madison).
---------------------------------------------------------------------------
In West Virginia v. EPA, the Court invoked the ``major questions
doctrine'' to reject an attempt by the EPA to exceed its statutory
authority.\5\ As the Court explained, ``[p]recedent teaches that there
are `extraordinary cases' in which the `history and breadth of the
authority that [the agency] has asserted,' and the `economic and
political significance' of that assertion, provide a `reason to
hesitate before concluding that Congress' meant to confer such
authority.'' \6\ Under this doctrine, an agency must point to ``clear
congressional authorization for the authority it claims.'' \7\ However,
in this instance, the EPA could not point to such authorization.
Rather, the EPA ``discover[ed] an unheralded power representing a
transformative expansion of its regulatory authority in the vague
language of a long-extant, but rarely used, statute designed as a gap
filler.'' \8\ Notably, such discovery ``allowed [EPA] to adopt a
regulatory program that Congress had conspicuously declined to enact
itself.'' \9\ As a result, the Supreme Court rejected the EPA's attempt
to so plainly exceed its statutory authority.
---------------------------------------------------------------------------
\5\ West Virginia, 597 U.S. at 20.
\6\ Id. at 17 (citing FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 129, 159-160).
\7\ West Virginia, 597 at 4.
\8\ Id. at 5.
\9\ Id. at 5.
---------------------------------------------------------------------------
Unfortunately, EPA's attempt to invent new authorities is not
unusual for the Biden Administration. Recently, the Court struck down
the Centers for Disease Control and Prevention's attempt to impose an
eviction moratorium \10\ and the Occupational Safety and Health
Administration's attempt to impose a vaccine or testing mandate.\11\
Thankfully, in West Virginia v. EPA, the Court made clear that such
reliance on the administrative state will no longer be tolerated. To be
clear, ``the Constitution does not authorize agencies to use pen-and-
phone regulations as substitutes for laws passed by the people's
representatives.'' \12\ In the United States, it is ``the peculiar
province of the legislature to prescribe general rules for the
government of society.'' \13\
---------------------------------------------------------------------------
\10\ Alabama Assn. of Relators v. Department of Health and Human
Servs, 594 U.S. __ (2021).
\11\ National Federation of Independent Business v. Occupational
Safety and Health Administration, 595 U.S. __ (2022).
\12\ West Virginia, 597 at 56 (Gorsuch, J., concurring).
\13\ Fletcher v. Peck, 6 Cranch 87, 136 (1810).
---------------------------------------------------------------------------
One of the most serious instances where a presidential
administration has sought to usurp the authority granted to it by
Congress is in the attempts to revise the definition of ``waters of the
United States,'' (WOTUS) under the Clean Water Act.\14\ For decades,
rural communities, farmers, businesses, and industries who rely on
clean water have dealt with legal and regulatory uncertainty,
compounded with confusing and overreaching Federal regulations over
what is considered a WOTUS and subject to Federal regulations and
permitting.\15\ West Virginia v. EPA suggests that there is ``reason to
hesitate'' with regard to this claim of authority given the two
criteria outlined by Chief Justice Roberts: the history and breadth of
the authority asserted and the economic and political significance of
that assertion.\16\
---------------------------------------------------------------------------
\14\ Federal Water Pollution Control Act (Clean Water Act), 33
U.S.C. 1251 et seq.
\15\ Stephen P. Mulligan, Cong. Rsch. Serv., R44585, Evolution of
the Meaning of ``Waters of the United States'' in the Clean Water Act 2
(2022), available at https://crsreports.congress.gov/product/pdf/R/
R44585.
\16\ West Virginia, 597 at 17.
---------------------------------------------------------------------------
Following enactment of the Clean Water Act, the United States Army
Corps of Engineers (USACE or Corps) and EPA (collectively, the
``Agencies'') promulgated WOTUS regulations in 1986 and 1988, which had
been in effect.\17\ However, as time progressed, the Corps and EPA
began interpreting WOTUS in an increasingly broad way. This culminated
in two Supreme Court cases, one in 2001 and the other in 2006, where
the Court interpreted the Clean Water Act's scope more narrowly.\18\
However, in the latter of the two cases, Rapanos v. United States, the
Supreme Court issued a fractured 4-1-4 plurality decision which led to
a significant amount of confusion.\19\ In this case, Associate Justice
Antonin Scalia issued a plurality opinion detailing a narrow,
straightforward approach to determine if a body of water is considered
a WOTUS. However, Associate Justice Anthony Kennedy issued the
concurring opinion that created what is known as the ``significant
nexus'' test for defining WOTUS, which erroneously expands what waters
may be considered WOTUS using vague and malleable terminology.\20\
---------------------------------------------------------------------------
\17\ USACE, ``Final Rule for Regulatory Programs of the Corps of
Engineers,'' 51 Fed. Reg. 41,206, (Nov. 13, 1986), available at https:/
/archives.federalregister.gov/issue_slice/1986/11/13/41202-
41260.pdf#page=5; EPA, ``Clean Water Act Section 404 Program
Definitions and Permit Exemptions; Section 404 State Program
Regulations,'' 53 Fed. Reg. 20,764 (June 6, 1988), available at https:/
/archives.federalregister.gov/issue_slice/1988/6/6/20736-
20789.pdf#page=29.
\18\ See Solid Waste Agency of Northern Cook County (SWANCC) v.
Corps, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715
(2006).
\19\ Rapanos, 547 at 715.
\20\ Id. at 780.
---------------------------------------------------------------------------
The Obama Administration then followed this flawed interpretation
from Justice Kennedy in its 2015 WOTUS rule, which resulted in an
unprecedented expansion of regulatory control by Federal agencies over
what is considered WOTUS.\21\ This 2015 rule was entangled in
litigation to the point that the United States Court of Appeals for the
Sixth Circuit felt compelled to issue a stay on the rule's enforcement
while the Courts evaluated these cases.\22\ Eventually, the rule was
replaced by the Navigable Water Protection Rule in 2020 that brought
long awaited clarity on the extent of waters covered under the Clean
Water Act.\23\ The Biden Administration is now seeking to repeal and
replace this rule in a two-part rulemaking, in what appears to be a
return to the expansive, confusing, and dubious approach taken by the
Obama Administration in 2015.\24\ Simply put, the fight over the
definition of WOTUS is characterized by opportunistic attempts by both
the Obama and Biden Administrations to administratively expand the
authority of both the EPA and the Corps.
---------------------------------------------------------------------------
\21\ Clean Water Rule: Definition of ``Waters of the United
States,'' 80 Fed. Reg. 37,054 (June 29, 2015).
\22\ See Ohio v. Corps (In re EPA & DOD Final Rule), 803 F.3d 804
(6th Cir. 2006) (granting petitioners motion for stay), available at
https://www.opn.ca6.uscourts.gov/opinions.pdf/15a0246p-06.pdf.
\23\ The Navigable Waters Protection Rule: Definition of ``Waters
of the United States,'' 85 Fed. Reg. 22,250 (Apr. 21, 2020).
\24\ Press Release, EPA, Army Announce Intent to Revise Definition
of WOTUS, June 9, 2021, available at https://www.epa.gov/newsreleases/
epa-army-announce-intent-revise-definition-wotus; see, e.g., 33 CFR
Sec. 328.3; 33 U.S.C. Sec. 1251 et seq.
---------------------------------------------------------------------------
This assertion of authority by the Corps and EPA is one of great
economic and political significance. Earlier this year, the United
States Small Business Administration's (SBA's) Office of Advocacy found
that ``the Agencies improperly certified the proposed rule under the
Regulatory Flexibility Act (RFA) because it would likely have direct
significant impacts on a substantial number of small entities.'' \25\
WOTUS and its subsequent rulemakings have had long standing political
and economic significance.\26\
---------------------------------------------------------------------------
\25\ Letter from Major L. Clark, III, Dep. Chief Counsel, Off. of
Advoc., SBA, to Hon. Michael S. Regan, Admin., EPA, and the Hon.
Michael L. Connor, Assistant Sec'y of the Army for Civil Works, Dep't
of the Army (Feb. 7, 2022), available at https://cdn.advocacy.sba.gov/
wp-content/uploads/2022/02/08152154/Comment-Letter-Proposed-WOTUS-
Definition-2022.pdf.
\26\ See e.g.: Letter from the U.S. Chamber of Commerce, to the
Hon. Gina McCarthy, Admin., EPA, and the Hon. Jo-Ellen Darcy, Assistant
Sec'y of the Army for Civil Works, Dep't of the Army (Nov. 12, 2014).
---------------------------------------------------------------------------
As such, the United States Supreme Court decided to grant
certiorari to Michael Sackett, et ux., Petitioners v. EPA, et al.
(Sackett).\27\ In March, over 200 Members of the House of
Representatives wrote to the Agencies urging a halt on all current
rulemaking actions surrounding the WOTUS definition as the Supreme
Court takes up this landmark case.\28\ We reiterate that request, and
now further stress that the Agencies must consider the decision of West
Virginia v. EPA prior to issuing a rulemaking that would clearly
surpass the Agencies' congressional authority to define WOTUS.
---------------------------------------------------------------------------
\27\ Sackett v. EPA, Case No. 21-454.
\28\ Letter from Ranking Member Sam Graves, the Hon. Dan Newhouse,
et al., to Hon. Michael S. Regan, Admin., EPA, and the Hon. Michael L.
Connor, Assistant Sec'y of the Army for Civil Works, Dep't of the Army
(Mar. 8, 2022).
---------------------------------------------------------------------------
As Ranking Members of several House Committees, including those
overseeing your Agencies, we intend to exercise our robust
investigative and legislative authority to not only forcefully reassert
our Article I responsibilities, but to ensure the Biden Administration
does not continue to exceed Congressional authorizations.
Accordingly, to assist in this effort, please answer the following
no later than October 4, 2022, as it relates to your Agencies, please
provide the following:
a. A list of all pending rulemakings concerning the definition of
WOTUS and the specific Congressional authority for each rulemaking.
b. A list of all expected rulemakings concerning WOTUS and the
specific Congressional authority for each rulemaking.
Thank you for your attention to this matter. If you have questions,
please contact Ryan Hambleton, Republican Staff Director, Subcommittee
on Water Resources and Environment.
Sincerely,
Sam Graves,
Ranking Member, Committee on Transportation and Infrastructure.
David Rouzer,
Ranking Member, Subcommittee on Water Resources and Environment.
Mike Bost,
Ranking Member, Committee on Veterans' Affairs.
Blaine Luetkemeyer,
Ranking Member, Committee on Small Business.
Garret Graves,
Ranking Member, Select Committee on the Climate Crisis.
Frank D. Lucas,
Ranking Member, Committee on Science, Space, and Technology.
Tom Cole,
Ranking Member, Committee on Rules.
Bruce Westerman,
Ranking Member, Committee on Natural Resources.
James Comer,
Ranking Member, Committee on Oversight and Reform.
Glenn ``GT'' Thompson,
Ranking Member, Committee on Agriculture.
John Katko,
Ranking Member, Committee on Homeland Security.
Jason Smith,
Ranking Member, Committee on the Budget.
Jim Jordan,
Ranking Member, Committee on the Judiciary.
Rodney Davis,
Ranking Member, Committee on House Administration.
Cathy McMorris Rodgers,
Ranking Member, Committee on Energy and Commerce.
Mr. Rouzer. Again, thank you to our witnesses for being
here. And I look forward to our discussion.
I yield back.
[Mr. Rouzer's prepared statement follows:]
Prepared Statement of Hon. David Rouzer, a Representative in Congress
from the State of North Carolina, and Ranking Member, Subcommittee on
Water Resources and Environment
Thank you, Chair Napolitano. I appreciate your holding this
hearing, and I would also like to thank our witnesses for being here
today to discuss the Clean Water Act.
In 1972, Congress passed what is known today as the Clean Water Act
in an overwhelmingly bipartisan fashion.
They recognized we had a major problem with the quality of our
nation's waters and understood the many benefits that we derive from
access to clean, navigable waters.
The Seventh Congressional District, which I'm honored to represent,
is known for beautiful waterways and beaches that provide significant
recreational and economic benefits. We also have many important water
bodies that we rely on for commerce and drinking water.
The Clean Water Act has had great success in its 50 years
protecting these waters in North Carolina and around the country.
However, we've yet to reach the ambitious goal Congress set out in
1972 to make all waters in the United States ``swimmable and
fishable''.
We must recognize that to move forward in achieving this goal, it
is vital for Congress and the federal government to modernize and
update the Clean Water Act in a way that is fair and reasonable to all,
including the regulated community, which is so integral to our economy
as well as our food and fiber production.
Communities and stakeholders have faced years of regulatory and
legal uncertainty in complying with the Act.
Some of the ways we've seen these challenges include overreach by
some states when using their section 401 authority under the Clean
Water Act to certify that a project meets water quality standards.
Some States have used this authority to block meaningful
infrastructure projects they are politically opposed to for reasons
beyond Clean Water Act goals of water quality.
There's also no greater example of overreach under the Clean Water
Act than with the regulatory nightmare of complying with and
understanding the definition of a ``water of the United States'' or
``WOTUS''.
This ``WOTUS'' definition is used for determining who must obtain a
section 404 Clean Water Act permit, which is well known for being a
costly and time-consuming process.
The WOTUS question has been debated for decades in Court, and the
EPA under varying presidential administrations has issued regulatory
definitions of WOTUS that are quite expansive, which was most
definitely the case with the 2015 Obama EPA WOTUS Rule.
I am very concerned that this Administration plans to issue a
similar rule that would once again place unnecessary burdens on the
communities, farmers, businesses, and industries who rely on clean
water.
This year the Supreme Court announced it would be taking up a case
on the definition of WOTUS, which further shows the enormous impacts
these rulemakings have on citizens across the country.
I've joined the Ranking Member of the Full Committee and several
other of my Republican colleagues to express our concerns about the
Biden Administration's actions on their proposed rules and to urge the
Administration to consider the pending Supreme Court's ruling.
I'm looking forward to discussing these important issues with our
panel today and learning how we can work together to make the Clean
Water Act more effective over the next 50 years.
Again, thank you to our witnesses and I yield back.
Mrs. Napolitano. Thank you, Mr. Rouzer.
I am pleased at this time to yield to the chair of the full
committee, Mr. DeFazio, for any thoughts he may have.
Mr. DeFazio. Thanks, Madam Chair.
Well, I have served here a long time, 36 years. We made one
major attempt at reauthorizing the Clean Water Act when Bud
Shuster was the chair. The markup went on for several days, and
the bottom line was that we would remove virtually all
regulation. And if you wanted to use the water for farming, you
wanted to drink it, whatever, that was your responsibility.
Clean it up. And the bill was so bad that Newt Gingrich
wouldn't even bring it to the floor.
And, unfortunately, now I am hearing echoes of that. And I
certainly saw reflections of that in the Trump administration.
Now, I agree with the ranking member when he says he wants
it to be more effective. I do, too. When the Clean Water Act
passed, Lake Erie was declared dead, dead, d-e-a-d, the
Cuyahoga River caught fire. We were driving over it on my way
west when I was in the Air Force, and they sent me to graduate
school through Ohio.
It said: Do not throw lighted objects from bridge.
Flammable substance below.
That was a river. Those are the good old days. Industry
didn't have to worry about cleaning it. They just dumped it in
the water. Now if you wanted to use that water for something
other than a sewer, it was up to you, you, the municipality,
the individual, whomever.
At that point two-thirds of the waters of the United States
were significantly----
[Audio interruption.]
Mr. DeFazio. Two-thirds of the waters of the U.S. were
impaired.
And, as Mr. Rouzer said, I want to see it more effective. I
do. I would like to see--the fact that one-third is still
impaired, I would like for all the waters of the U.S. to not be
impaired. There are millions of Americans who would like to be
able to swim in the streams or the rivers or the lakes near
their house without worrying about toxic chemicals or other
things.
So much of our society is dependent upon clean water:
fishable, swimmable, drinkable, farmable.
He mentioned North Carolina. North Carolina has such pure
water in the mountains that two of the largest breweries in
America opened up there because the water is so pure. Now, they
aren't going to open up in areas that have impaired water. And
many other businesses are dependent upon clean water, as well
as our farmers, and obviously municipalities, for their
citizens.
So, I am very disturbed at the general trend we have seen
here, the mythology around the rule.
Now, I will grant you that the first rule proposed by the
EPA under the Obama administration was totally indecipherable.
And it allowed these bizarre rumors to arise from the Farm
Bureau. Oh, if you have a birdbath in your backyard, it is
going to be regulated. If there is a mud puddle, it is going to
be regulated. If you have got a drainage ditch, it is going to
be regulated.
It was really, really poorly written. They pulled back.
Totally rewrote it. And after a number of years, we held a
hearing on it. We held it over in the Capitol Visitor Center.
We had a joint hearing. I can't remember with what other
committee.
And the Republicans had been famously showing this farmer's
field and saying, look, this is the kind of thing. He is
regulated.
Yes, he was regulated. It is in the region. The region told
him he had to get permits to expand his farm. And when I showed
that slide to the then-EPA Administrator, I said what would
happen to this gentleman under your new rule. She said, he
would be categorically exempt. The rule would have removed the
ambiguity and the levels of enforcement that varied all around
the United States, depending upon the regional office or local
offices of the regulatory agencies or the States. It was a good
rule.
Then comes the Trump administration, and we will hear from
one of the principals in that later today who came before the
committee and famously said he had no idea of the impact of the
rule they were proposing, how much of the waters the United
States would be removed from any regulatory burdens. He said--I
think at the time he said 18 to 71 percent. He didn't really
know. But they were going to push the rule anyway.
Let's find out afterwards. How much of the wetlands have we
destroyed? How much of the rivers have we polluted? How many of
the tributary streams have become impaired? Turned out it was
70 percent. He was pretty close. His upper estimate said 71.
And now, there are those who want to turn back the clock
and potentially, including the Supreme Court of the United
States, who is dealing with a bizarre, divided, two different
cases on this, defining what are the regulated waters.
I really don't think--and it's like a few other things that
have gone on around here in DC this last year--that the
American people are going to want to know that suddenly, the
local industry can just start dumping crap in the river again
and/or we are not going to deal with other forms of pollution.
I think there will be outrage among the Americans like there
has been on some other recent Supreme Court decisions.
So, I would hope that we can adopt back the attitude in
1972, 10-1 vote to override President Nixon's veto. And he then
became ultimately famous for having passed the Clean Water Act
and other environmental laws. It became part of his legacy,
even though he tried to veto it and was overruled 10-1. Let's
get back to those days. Let's do what the American people
really want.
Thank you.
[Mr. DeFazio's prepared statement follows:]
Prepared Statement of Hon. Peter A. DeFazio, a Representative in
Congress from the State of Oregon, and Chair, Committee on
Transportation and Infrastructure
We are here today to celebrate the 50th anniversary of the passage
of the Clean Water Act. Few laws have done more for our public health
and the environment.
Clean water is a basic human need and a human right. Families rely
on rivers and streams to supply clean drinking water to our homes and
businesses. Farmers and brewers rely on clean water to produce good
food and drink. Hunters, anglers, and birders need water and wetlands
to sustain wildlife and the $669 billion outdoor recreation industry,
which directly supports 4.3 million jobs nationally.
The Clean Water Act was enacted in 1972 on an overwhelming and
bipartisan basis. Before the Act, rivers served as little more than
open sewers, Lake Erie was pronounced ``dead,'' and Ohio's Cuyahoga
River literally caught on fire. Thanks to bipartisan efforts over
decades to implement the Clean Water Act, our rivers and lakes are
cleaner and safer.
I am pleased that the Biden administration takes the legacy,
effectiveness, and importance of this landmark legislation as seriously
as I do. First and foremost, the Infrastructure Investment and Jobs Act
(IIJA) provides roughly $13 billion in critical wastewater
infrastructure funding to states through the Clean Water Act State
Revolving Fund--the first reauthorization of this critical program
since its enactment in 1987. The IIJA also invests an additional $1
billion in wastewater infrastructure improvements to address emerging
contaminants, such as PFAS, in our surface waters, and provides an
additional $2 billion to protect critical waters like the Great Lakes,
Chesapeake Bay, and Puget Sound. The IIJA funding is vital for
upgrading our nation's clean water infrastructure so that we can
realistically achieve the goal of making every body of water fishable
and swimmable.
The Biden administration is also playing an active role in
restoring some of the tools that made the Clean Water Act so
successful. Under the previous administration, we saw unprecedented
rollbacks of over 100 environmental regulations. Thankfully, President
Biden's EPA is taking action to undo some of the most egregious
maneuvers of the former administration.
New rulemakings will permanently undo the ``Trump Dirty Water
Rule''--which was quickly overturned by federal courts as
``fundamentally flawed''--will strengthen the authority of states and
Tribes in protecting their water resources and will restore the
longstanding role of science in the decisionmaking process. These
actions will restore the efficacy of the Clean Water Act, reduce
pollution in our vital natural resources, and protect access to clean
water for hundreds of millions of Americans.
Ensuring that Americans have access to clean water is not a
political game--our health and livelihoods depend on it. While the
Clean Water Act has been tremendously successful, we must keep working
to ensure it remains effective. Additional funding is still needed to
improve our infrastructure which is overburdened by the challenges of
climate change and neglect.
We must be vigilant to ensure that critical investments are
targeted to address historically overlooked communities and regions,
including rural areas, tribal lands, and minority communities, such as
Jackson, Mississippi.
We also must continue to invest in emerging technologies so that we
can adequately treat wastewater and industrial discharges before they
contaminate our wetlands, lakes, and rivers.
Additionally, communities across the country are experiencing
record downpours and flooding or battling lack of access to clean
water. Increasingly severe storms cause our sewer systems to overflow
and expose residents to unsafe and polluted stormwater.
If the Act is to remain relevant and be successful for another 50
years, we must continue to fund its vital programs and enforce the law.
The nation's water quality has come a long way from the 1970s, but
there is still room for improvement. Together, we must remain committed
our goal of providing clean water for every American.
Mrs. Napolitano. Thank you, Mr. DeFazio.
Is Mr. Sam Graves, is he able to participate? If not, we
will go on to the witnesses.
Thank you very much. We will now proceed to hear from our
witnesses who will testify today.
I ask the witnesses to please turn their cameras on and
keep them on for the duration of the panel. Thank you very much
for being here and welcome to you.
On today's panel, we have Joaquin Esquivel, chair of the
California State Water Resources Control Board; Michael Witt,
general counsel of the Passaic Valley Sewerage Commission,
Newark, New Jersey; Stefanie Tsosie, senior attorney at
Earthjustice; David Ross, partner at Troutman Pepper LLP; and,
of course, Laura Gatz, analyst at the Congressional Research
Service.
Without objection, your prepared statements will be entered
into the record.
And all witnesses are asked to limit their remarks to 5
minutes.
Mr. Esquivel, you may proceed.
TESTIMONY OF JOAQUIN ESQUIVEL, CHAIR, CALIFORNIA STATE WATER
RESOURCES CONTROL BOARD; MICHAEL D. WITT, GENERAL COUNSEL,
PASSAIC VALLEY SEWERAGE COMMISSION, NEWARK, NEW JERSEY, ON
BEHALF OF THE NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES;
STEFANIE K. TSOSIE, SENIOR ATTORNEY, TRIBAL PARTNERSHIPS
PROGRAM, EARTHJUSTICE; DAVID P. ROSS, ESQ., PARTNER, TROUTMAN
PEPPER LLP; AND LAURA GATZ, ENVIRONMENTAL POLICY ANALYST,
CONGRESSIONAL RESEARCH SERVICE
Mr. Esquivel. Thank you, Chair Napolitano.
And it is an honor to be here with you as well, Committee
Chair DeFazio and ranking member and members of the
subcommittee.
It is an incredible moment that we have here, 50 years'
worth of history of progress on accessing and having universal
clean water here in the Nation, but still with a lot of
challenges. So, it is an honor to be here with you to discuss
some of the things that we can celebrate but also reflect on
what we still have to do here.
I just want to reflect as well on the conversation that is
here, the backdrop of this celebration of the 50th anniversary
of the Clean Water Act, which is still tension and discussion
around how best we regulate, how best we achieve what, as Chair
DeFazio said, was pretty unanimous agreement that our water
bodies were incredibly impaired, that we were needing to
reconcile this need for a future where we had livable,
swimmable, and clean access to water and air.
But I think it's important to remember that 50 years ago,
it was a time as well of other discussions around civil rights,
around the Endangered Species Act, around other nationally
important pieces of legislation that were passed at a time
where here, not unlike 50 years ago, we had divisions amongst
us, had a need to have a common vision for how we were going to
continue to ensure that we had thriving economies and,
importantly, thriving communities.
And so, it is not lost on me here that California actually
has a special relationship with the Clean Water Act. You dial
back 50 years ago and Porter-Cologne was a State water quality
act that was passed in 1969. And in many ways, it was the
direct model for the national Clean Water Act, the amendments
to the Pollution Control Act at the time where here Justice
Robie in California was then the author in many ways of Porter-
Cologne and was our first chair here at the State Water
Resources Control Board.
And so, this special nexus that California has with the
Clean Water Act, with this discussion around how best we ensure
that clean water is the basis of our modern economies here, is
incredibly important.
What we can reflect on is a lot of progress. You look up
and down the State in California where here the water board is
fortunate to regulate 1.3 million acres of bays and estuaries,
2,100 river-miles, 1,100 miles of coastline. And we have a lot
of progress to be thankful for. I think of the San Diego Harbor
and Bay. I think of here where I currently live in Sacramento,
where we had discharges from wastewater treatment plants going
to our rivers and making them so polluted that we weren't able
to use them, to recreate them in the summer as a warming
climate makes all the access to our recreational opportunities
and clean water even more challenged and important.
And so, that progress is important to remind ourselves. It
is easy to take for granted what is 50 years of cleanup of our
waterways and making them accessible to our communities.
But we have to also acknowledge we have incredible
inequities still. We continue to see headlines around
challenges with access to sanitation, challenges with access to
clean water. And we need to make sure in this moment, these 50
years' worth of progress, we don't actually go back, we don't
start to see the incredible challenges that we saw 50 years ago
and have made progress on.
And that is incumbent upon all of us re-embracing this
challenge, the call to ensure that access to clean water is the
basis of our modern economies and doesn't impair our ability to
enjoy the quality of life that is continuing to be challenged.
We are, in many ways, reconciling the systems that we have
inherited from the 20th century. And we certainly have a lot of
21st-century challenges here amongst us, whether it is the
continued inequities we see or the real challenges of the
climate crisis that is in front of us, where drought, flood,
and wildfire continue to impact the quality of our waters, the
ability for us to ensure, again, that we have access to them
into the future.
So, now is an incredible time for us to reimagine, and
here, recommit, to what is a generational need to reinvest in
our water systems, ensure that access to clean water is at the
core and center of our common good, and not let what is easy
partisan politics make us distracted from what is an incredible
amount of success, but also, an incredible opportunity to
ignite the imagination of a current generation now that is
watching and listening to these very discussions and wondering
if we here in leadership positions will have the vision and the
strength to continue to commit to access to clean water and let
water be a nonpartisan door in which we can all step through
and continue to have the critical conversations around what our
future looks like and how we all contribute to it in common.
So, thank you. It is an honor to be here. I feel privileged
to be so, and look forward to the further discussion here on
this item.
[Mr. Esquivel's prepared statement follows:]
Prepared Statement of Joaquin Esquivel, Chair, California State Water
Resources Control Board
Good morning Chair and Committee Members, and thank you for this
opportunity to participate and reflect on the Clean Water Act in on its
fiftieth anniversary. My name is Joaquin Esquivel and I have the honor
to Chair the State Water Resources Control Board for the State of
California.
California, and the State Water Resources Control Board in
particular, has a unique relationship with the Clean Water Act.
The State Water Board, as we refer to it, came into its present
form in 1967 when the existing State Water Board and the State Water
Rights Board were consolidated.
The State Water Board and the nine Regional Water Quality Control
Boards (Regional Water Boards) have regulatory responsibility for
protecting the water quality of nearly 1.6 million acres of lakes, 1.3
million acres of bays and estuaries, 211,000 miles of rivers and
streams, and approximately 1,100 miles of coastline.
The federal Clean Water Act and the state's Porter-Cologne Water
Quality Control Act are the twin foundations of water quality control
in California.
Water Quality Data and Metrics
As we celebrate fifty years of the Clean Water Act, California
continues the work to protect and restore watersheds, marine waters,
and ecosystems.
Our Strategic Work Plan outlines our objectives, to ensure river
and stream flows support fish, wildlife, recreation and other
beneficial uses.
The Work Plan is ambitious and wide-reaching, focusing on items
such as:
Developing timely Clean Water Act Section 401 water
quality certifications for large hydropower projects,
Improving models, tools, and data needed to evaluate the
interconnection between streamflow and other beneficial uses,
Improving management of surface water temperatures to
reduce fish mortality and improve watershed and ecosystem health,
Amending our state's Ocean Plan to address ocean
acidification and hypoxia, and to align the Ocean Plan with toxicity
policies,
Implementing statewide harmful algal bloom strategies,
Implementing a recently-adopted permit for large habitat
restoration projects
California is geographically and hydrologically complex, and any
effort to apply a statewide water quality standard must begin with an
understanding of the many hydrological regimes that can be found from
our high deserts to our temperate rainforests.
As our collective understanding of the causes of, and contributions
to, water quality impacts grows, so does the work required to ensure a
healthy environment for all Californians.
This work begins with our Water Quality Planning and Standards
Program, which establishes designated water uses, sets water quality
criteria to protect those uses, and develops antidegradation planning
to keep waters clean and to protect existing uses.
To give some idea as to the complexity of water quality issues in
our state, I would turn your attention to the 2020-2022 California
Integrated Report.
The Integrated Report is an inventory and assessment of waters of
the state that the State is required to update and submit to the U.S.
Environmental Protection Agency every two years.
California rotates which regions are required to update their
inventory, and our Central Coast, Central Valley, and San Diego Regions
updated their inventory this year.
In the 2020-2022 report, we evaluated nearly 4.6 million rows of
data for over 1,600 water bodies and made nearly 25,000 water body-
pollutant decisions.
We're learning more and more each year about water in our state,
how it is connected to every facet of our lives, and how our changing
climate is affecting water in ways that are surprising and
unanticipated.
It takes a great deal of time and effort to determine whether a
water body is impaired (i.e., not meeting standards), but that is only
the beginning of our work.
For each water body and pollutant combination, we then establish a
level--a total maximum daily load, known as a TMDL--necessary to
restore the water body and protect its beneficial uses.
Sometimes multiple pollutants can be addressed in a single TMDL,
and sometimes a TMDL can cover multiple water bodies in a watershed,
but each TMDL takes a lot of time and careful consideration.
TMDLs are not casually undertaken, and the State and Regional Water
Boards are currently in the process of developing more than 120 TMDLs.
Once a TMDL is completed and adopted, that State and Regional Water
Boards update water quality control plans.
Each of the nine regions has a water quality control plan for their
jurisdiction, and the State Water Board has water quality control plans
for particular areas such as the San Francisco Bay and Sacramento/San
Joaquin River Delta, Oceans, Inland Surface Waters, and Enclosed Bays
and Estuaries.
Once a TMDL is incorporated into a water quality control plan, the
Water Boards can readopt various NPDES permits to ensure that permitted
activities no longer contribute to water quality impairments.
For pollution sources that do not have a specific point of
discharge, the State Water Board's Nonpoint Source Program takes a
watershed-level approach, collaborating with state and federal agencies
and local governments to control hard-to-pin-down sources of water
quality impairments.
And finally, the State Board's Surface Water Ambient Monitoring
Program and the Constituents of Emerging Concern Program improve the
state's knowledge and understanding of emerging pollutants, and develop
and implement a comprehensive, flexible, statewide management strategy.
These are the programs that will help us better understand
pollutants such as microplastics or Per and Polyfluoroalkyl Substances
like PFOA or PFOS, that are becoming major sources of water quality
impairment.
Our state faces many challenges to ensuring that Californians have
access to a clean and healthy environment.
California is no stranger to the tangible and real effects of
ongoing climate change.
As we experience our most extreme drought on record, we know that
we will have to change our approach towards maintaining water quality.
We're experiencing an epidemic of harmful algal blooms across the
state, and our aquatic wildlife is struggling to breathe in oxygen
deprived waters from Clear Lake to Lake Merrit in Oakland, and in a
myriad of swimming holes that our small rural communities rely on to
escape the extreme heat.
Our forests--the ecosystems that are the foundation of headwaters
critical to our water system--are suffering as the frequency and
intensity of catastrophic wildfires increases.
This additional threat to our State has required an immediate and
swift change to vegetation and forest management practices and wildfire
resilience projects.
That is why the State Water Board has adopted its Vegetation
Treatment General Order to significantly streamline the permitting and
approval processes of non-commercial vegetation management projects,
without sacrificing water quality.
We also continue to work with our sister agencies such as CalFIRE,
the Department of Conservation, and the Department of Fish and
Wildlife, to implement the Forest Practices Act which governs the
regulation of commercial timber activities on private and state lands,
to ensure that timber harvest plans do not have negative environmental
impacts.
These holistic approaches are important as the Water Board makes
strides to address the environmental justice inequities that have
occurred from past, institutional and outdated decision-making
governance structures.
Environmental Justice, Racial Equity, and Transparency
We seek to meaningfully involve everyone affected by the decision
we make, and provide open and transparent opportunities for people to
participate in public meetings, hearings, and workshops that may affect
their environment and health.
We strive to include those who have been disproportionately
impacted by pollution in decision-making processes through outreach and
engagement approaches, and the development of multi-language, plain-
speaking informational materials.
In that spirit, the Water Boards have declared that meaningful
engagement with our state's Native American Tribes is fundamental to
our mission.
Working with Native American Tribes holds a special value at the
Water Boards because of our parallel relationship to the people we
serve, and because of Tribes' historic knowledge and experience
managing California's water resources since time immemorial.
The State Water Board, working with our tribal partners, recently
developed and defined statewide Tribal Beneficial Uses for water
quality purposes, and those beneficial uses are even now being
incorporated into the state's water quality plans, acknowledging the
importance of traditional ecological knowledge and the unique concerns
and needs of Tribes.
Most notably, in 2021, the State Water Board adopted its Racial
Equity Resolution and publicly acknowledged that the historical effects
of institutional racism must be confronted through government, and we
have condemned racism, xenophobia, bigotry, and racial injustice.
We are taking action to develop and implement a Racial Equity
Action Plan, which will include specific actions the State Water Board
will take to address racial inequities, as well as metrics to measure
our progress.
With this action plan, we envision a sustainable California where
race no longer predicts where clean water is available or who has
access to it.
I want to thank Chair Napolitano and the other members of the
Committee for this opportunity to provide a Californian perspective on
the Clean Water Act, the progress we have made, and the challenges we
face in ensuring everyone in our state has access to clean water.
Thank you.
Mrs. Napolitano. Thank you, Mr. Esquivel.
Mr. Witt, you may proceed.
Mr. Witt. Thank you.
Chairs DeFazio and Napolitano, Ranking Members Graves and
Rouzer, and all members of the subcommittee, good morning.
Thank you for the opportunity to testify on behalf of the
National Association of Clean Water Agencies.
As the country prepares to celebrate the 50th anniversary
of the Clean Water Act, it is an honor to be here with you this
morning to discuss the vital role that public clean water
agencies have played in implementing the far-reaching goals of
the act: improving water quality in our Nation's water bodies
and protecting public health and the environment.
My name is Michael Witt, and I am general counsel for the
Passaic Valley Sewerage Commission in Newark, New Jersey.
Formed in 1897, PVSC is one of the oldest environmental
agencies in the United States, and we have been providing
public sewer service for almost a century. I am also a board
member of NACWA, the Nation's leading organization of public
clean water utilities that, like PVSC, are on the front lines
each day, working to enhance public health and the communities
we proudly serve.
While it is difficult to imagine today, prior to the 1970s,
the most common form of wastewater treatment was simply to
discharge it with little to no processing into the nearest body
of water. Resulting public health and environmental damage
caused across the country by this practice helped to galvanize
national action on wastewater treatment, culminating in the
passage of the Clean Water Act in 1972.
By many measures, the Clean Water Act has had the desired
effect. More than $60 billion of initial funding in the 1970s
and 1980s helped create vital partnerships among the Federal,
State, and local governments to construct and/or update
wastewater treatment facilities. As a result, our Nation's
water quality and public health have improved dramatically. And
public clean water utilities have been at the forefront of that
improvement.
Some examples of Clean Water Act funding successes include,
as the chairman mentioned, the Cuyahoga River in Cleveland,
Ohio, which was so badly polluted that, yes, it actually caught
on fire. Fifty years later, with the help of Federal funding
and my colleagues at Northeast Ohio Regional Sewer District,
water quality in that river has been restored to the level
where now it is safe to eat fish caught there again.
The city of Seattle, Washington, is using grants to build
innovative green stormwater infrastructure to control its
combined sewer system, enabling that city to cut pollution to
its waterways by 75 percent. In Alexandria, Virginia, just
across the river, Alexandria Renew Enterprises has invested in
technology to capture and reuse biogas from its treatment
processes, to use it as a heating fuel. As a result, it has
realized a 25-percent reduction in the emission of greenhouse
gases.
In my place of work, PVSC, we used Federal grants to
construct an advanced secondary treatment process that went
operational in 1981. This allows us to provide wastewater
treatment services to over 1.5 million people, 1 out of every 6
residents in the State of New Jersey, making PVSC the single
most important public health infrastructure investment in the
State's history.
These projects and many others like them were funded, in
part, by the Clean Water Act. The act has also had major social
and economic impacts. Thanks to water quality improvement since
1972, access to outdoor water recreational opportunities has
been greatly upgraded and expanded to tens of millions of
Americans. These activities generate $175 billion per year in
annual spending and are directly responsible for more than 1.5
million jobs.
Cities, both large and small, are experiencing
revitalizations of their once-polluted waterfronts with major
investments being made in housing, small business development,
and entertainment venues.
Investment in wastewater also provides employment. Today,
approximately 1 out of every 300 working Americans is employed
in the clean water sector in a variety of well-paid, local
jobs. These jobs provide opportunities across a diverse
spectrum of educational and skill-set backgrounds.
But while we celebrate the success of the last 50 years, we
must acknowledge the challenges ahead. We must maintain and
update the clean water infrastructure that we have, while at
the same time, plan and build for the future. We must be able
to address new pollutant standards, population growth,
agricultural and industrial expansion, land development
pressures, and a changing climate that directly impacts water
and wastewater systems.
This requires strengthening and maintaining the partnership
between the Federal, State, and local governments, especially
on the issue of clean water funding. While the act and other
funding initiatives provide vital support, they do not meet the
need for clean water infrastructure investment, which is in the
hundreds of billions of dollars.
Thus it is imperative that in the coming fiscal years,
Congress fully appropriate all authorized funding measures,
such as those under the bipartisan Infrastructure Investment
and Jobs Act. Even with Federal assistance, the vast majority
of clean water investment in infrastructure will continue to be
made by our ratepayers, our customers. And many residents will
be pushed up against the limits of affordability. We must,
therefore, fully embrace the concepts of environment justice,
ensuring the equitable provision of clean water services for
all.
Together, public clean water utilities, States, and the
Federal Government can continue the important progress made on
both the investment and policy fronts and see the next 50 years
of the Clean Water Act result in even greater achievements.
Thank you again for the opportunity to speak before you
today. This concludes my oral testimony, and I will be happy to
answer any questions the committee might have.
[Mr. Witt's prepared statement follows:]
Prepared Statement of Michael D. Witt, General Counsel, Passaic Valley
Sewerage Commission, Newark, New Jersey, on behalf of the National
Association of Clean Water Agencies
Chairs DeFazio and Napolitano, Ranking Members Graves and Rouzer,
and all members of the Subcommittee--good morning. Thank you for the
opportunity to testify on behalf of the National Association of Clean
Water Agencies, or NACWA, as the country prepares to celebrate the
Clean Water Act's 50th Anniversary next month. It is an honor to be
with you this morning to discuss the vital role that public clean water
agencies have played in implementing the far-reaching goals of the
Act--improving water quality in our nation's water bodies and
protecting public health and the environment.
My name is Michael Witt, and I am General Counsel for the Passaic
Valley Sewerage Commission, or PVSC, in Newark, New Jersey. Formed in
1897, PVSC is one of the oldest environmental agencies in the United
States and has provided public sewer service for nearly a century. PVSC
operates the fifth-largest wastewater facility in the nation, treating
over 250 million gallons of wastewater per day and providing service to
1.5 million residents in 48 municipalities across northeastern New
Jersey.
I am also a Board member of NACWA, the nation's leading
organization of public clean water utilities that, like PVSC, are on
the front lines each day working to enhance public health in the
communities we proudly serve.
While it is difficult to imagine today, prior to the 1970s, the
most common form of industrial, commercial, and residential wastewater
``treatment'' was simply to discharge it with little to no actual
processing into the nearest stream, river, lake, or ocean. This
practice directly impacted human health and the environment, causing
illnesses and even deaths from waterborne disease, and destroying
entire natural habitats. Indeed, many water bodies were declared to be
``dead zones'' that could no longer support basic ecosystems.
Realizing the dire and growing public health concerns and
environmental degradation, many cities started developing public
treatment systems after World War II. The systems transported sewage
from homes and businesses to treatment works for basic filtration, or
``primary treatment.'' While a good start, these early efforts could
not keep up with increasing population and industrial development, and
the resulting increase in water pollution. This problem was shockingly
immortalized in the late 1960's with the powerful images of the
Cuyahoga River in Cleveland, Ohio catching fire; an indelible image
that helped galvanize national action, culminating in the passage of
the Clean Water Act in 1972.
By many measures, the Clean Water Act has fulfilled the goals of
its drafters. More than $60 billion dollars provided through the Act's
Construction Grants Program in the 1970s and 1980s helped create vital
partnerships among the federal, state and local governments to improve
wastewater treatment facilities. Over the last 50 years, the effects of
the Clean Water Act and its subsequent amendments have had a profoundly
positive impact on improving our nation's water quality and public
health.
Public clean water utilities have resoundingly responded to the
challenge in what can only be described as one of the greatest success
stories of modern engineering, science, and planning, highlighting the
power of the local-state-federal partnership created by the Act.
There are many examples of this success. 50 years after the
Cuyahoga unfortunately served as the posterchild for water pollution,
the Ohio Environmental Protection Agency declared that the river had
been restored to the level where it is now safe to eat fish caught
there. Along with the passage of the Act, my colleagues at the
Northeast Ohio Regional Sewer District and its member communities
deserve much of the credit for that success.
Other examples include the City of Seattle, Washington, which is
using innovative Green Stormwater Infrastructure to control its
combined sewer system, enabling the city to cut pollution to its
waterways by 75%. In Alexandria, Virginia, just across the Potomac
River from where we are sitting, Alexandria Renew Enterprises is
capturing and reusing biogas from its treatment process to use as a
heating fuel. As a result, it has realized a 25% reduction in
greenhouse gas generation since 2005. These projects were funded in
part by the Clean Water Act.
At my place of work, PVSC used Clean Water Act construction grants
to construct an advanced ``secondary treatment'' process that went
operational in 1981. This allows us to provide wastewater treatment
services for one out of every six people in the entire state, making
PVSC the single most important public health infrastructure investment
to date in the State of New Jersey.
These are just a handful of the clean water utility success stories
under the Clean Water Act. There are many others, including those
recorded in NACWA's 50th Anniversary Report--which we celebrated in
2020--at www.nacwa50report.org.
As environmental stewards of our communities, NACWA members take
pride in these achievements. But the story goes beyond just the
environmental impact; it is also about the positive social and economic
impacts the Clean Water Act has had on virtually every community.
Thanks to water quality improvement over the last 50 years, access to
outdoor recreational opportunities has been greatly upgraded and
expanded to tens of millions of Americans who enjoy fishing, swimming,
kayaking, and other water activities. These activities generate $175
billion dollars in annual spending and are directly responsible for
more than 1.5 million jobs.
Cities both large and small are experiencing major revitalizations
of their once polluted waterfronts with major investments being made in
housing, small businesses development, and entertainment venues. Places
like the Santa Monica Bay; the Puget Sound; the Potomac River here in
Washington, DC; and Boston Harbor, to name a few--which were once
considered some of the most polluted in the U.S--are now considered
some of our most valued and treasured bodies of water and support
numerous recreational opportunities.
Further, it is estimated that one out of every 300 working
Americans is employed in the clean water sector in a variety of well-
paid, local jobs. These jobs span a diverse spectrum of education and
skills ranging from technology, science, and engineering to finance,
legal, human resources, and communications, to tradespeople of all
kinds such as mechanics, electricians, plumbers, and steamfitters.
Without the investments made under the Clean Water Act and the
subsequent hard work initiated by utilities, these positive impacts
would not have been realized.
But while we celebrate the success of the past 50 years, we must
acknowledge the challenges that lie ahead. These include maintaining
and updating the clean water infrastructure we have, while expanding
our treatment systems and technologies to address new pollutant
standards, population growth, industrial and agricultural expansion,
land development pressures, and a changing climate that directly
impacts water and wastewater systems.
Central to addressing these future challenges will be maintaining--
and strengthening--the partnership between the federal, state, and
local governments, especially on the issue of clean water
infrastructure funding. While the Clean Water State Revolving Fund
(CWSRF), a federal loan program which replaced the Construction Grants
Program in the 1980s, and other federal funding initiatives including
the recently enacted bipartisan Infrastructure Investment and Jobs Act
(IIJA) provide vital funding support, they do not meet the total need
for clean water infrastructure investment which is in the hundreds of
billions of dollars.
The IIJA is the most important infrastructure bill in a generation,
and NACWA and its members are extremely grateful to Congress for
advancing it. The IIJA authorized and in some cases directly
appropriated historic levels of investment in clean water not seen
since the creation of the Construction Grants Program. It is imperative
that in the coming fiscal years Congress fully appropriate the funding
authorized under the IIJA, both for existing programs such as WIFIA and
EPA's Sewer Overflow and Stormwater Reuse Municipal Grants program, as
well as for newly authorized programs including low-income water
customer assistance and Clean Water Infrastructure Resilience and
Sustainability grants. Full funding for these programs will also,
critically, help ensure that disadvantaged communities--rural and
urban--are able to fully realize the clean water success stories
brought about by the Clean Water Act.
Even with the stepped-up federal assistance, the vast majority of
investment in clean water infrastructure will continue to be made by
our customers through the rates they pay. These rates are anticipated
to continue rising as communities address aging infrastructure,
compliance obligations, the effects of climate change, and increasingly
complex water quality challenges--pushing many against the limits of
affordability. As we face all these challenges, we must fully embrace
the concepts of environmental justice and ensuring equitable provision
of clean water services for all.
As such, to continue advancing clean water progress, Congress,
regulators, and local clean water utilities must commit to
strengthening constructive collaboration. For one, the enhanced use of
Integrated Planning by states and communities in both the enforcement
and permitting contexts is imperative to help communities better manage
costs and prioritize their growing list of clean water investments and
obligations affordably over time to best serve their ratepayers. A
critical step toward advancing this collaborative approach was taken
when, under the bipartisan leadership of members of this Committee,
Integrated Planning was codified into the Clean Water Act in 2018.
Together, public clean water utilities, states and the federal
government can continue progress on both the investment and policy
fronts to ensure the next fifty years of the Clean Water Act results in
even greater achievements than those of the last fifty. Indeed,
collaboration, partnerships, and shared responsibility are embodied
within the Clean Water Act's ``cooperative federalism'' framework. As
the successes of the past 50 years have shown, the nation's public
clean water utilities have earned the right to be a full partner with
the federal government in charting the next 50 years of clean water
success. This must include a greater focus by all stakeholders on
enhanced resource recovery and use of innovative technologies by public
clean water utilities, managing escalating capital, operations and
maintenance costs, alleviating supply chain concerns, and responding to
workforce retention and development challenges. Together we will be
able to address overarching priorities including ensuring water
affordability, advancing environmental justice, and managing climate
uncertainty.
NACWA and its public utility members remain ready and committed to
do our part!
Thank you again for the opportunity to testify before you today.
This concludes my testimony, and I would be happy to answer any
questions the Committee may have.
Mrs. Napolitano. Thank you, Mr. Witt, very much.
Ms. Tsosie, you are recognized.
Ms. Tsosie. [Speaking Native language.]
Thank you, Chair Napolitano and Ranking Member Rouzer, for
the opportunity to testify today. My name is Stefanie Tsosie,
and I am a member of the Navajo Nation. Currently, I serve as a
senior attorney in the Tribal Partnerships Program at
Earthjustice.
In my role as a litigator and advocate at Earthjustice, I
have the immense honor and privilege to represent and work with
Tribal clients across the country.
I am joining you this morning from the Fort McDowell
Yavapai Reservation in the State now known as Arizona, the land
that is home to many Tribal nations, including my own.
It seems appropriate that I get the opportunity to testify
today on the Clean Water Act from a place where water is so
precious. In the 50 years since the Clean Water Act was passed,
it has been an instrumental resource for communities and Tribal
governments in protecting water resources.
The goals of the Clean Water Act are clear: To restore and
maintain the chemical, physical, and biological integrity of
the Nation's waters. Despite this clear directive, many of our
clients and partners are faced with challenges in achieving
these goals. This includes threats to narrow the scope of the
Clean Water Act and limiting the protections that it provides
to our streams, wetlands, and water resources.
Indeed, it is a Tribe from here in Arizona that
successfully litigated an attempt by the Trump administration
to narrow the Clean Water Act's applicability. The Pascua Yaqui
Tribe, along with other Tribal plaintiffs, have a lawsuit in
Federal district court to challenge that Trump-era rule. Under
that interpretation of the Clean Water Act, nearly 1,500
streams in New Mexico and Arizona would fall outside the
protection of the Clean Water Act.
This would have caused significant harm to Tribal
communities here in the Southwest. Fortunately, a new EPA took
back the rule, and the Federal court vacated its applicability.
Our Tribal clients prevailed in keeping the Clean Water Act
protections for the arid Southwest and its precious water
resources intact.
Unfortunately, the Clean Water Act's jurisdiction is an
open question in front of the court once again. Our Tribal
clients and partners filed an amicus brief with the Supreme
Court of the United States in the case of Sackett v. EPA in
hopes of educating both the court and the public of the
importance of the Clean Water Act for Tribal communities.
Clean Water Act jurisdiction is fundamental for our Tribal
clients to participate in the process of protecting water, both
on and off Tribal lands. The permitting requirements set forth
in the various sections of the Clean Water Act provide an
avenue for communities to be involved in reviewing the proposed
projects that have an impact on our valuable water resources.
Our Tribal clients and partners have used these tools
successfully, but they have also faced significant challenges.
My written testimony details a few of these successes and
pitfalls our Tribal clients and partners have faced within the
statutory scheme of the Clean Water Act.
Unfortunately, one source of these pitfalls can be traced
either to the lack of consultation or insufficient consultation
with Tribes. As I am sure this committee is aware, the Federal
Government has a trust responsibility to Tribal nations, which
includes the duty to consult. Our Tribal clients and partners
have been stewards of the waters and their respective
Territories since time immemorial and have a vested interest in
continuing that stewardship.
However, the Army Corps of Engineers and EPA must also be a
part of that process to meaningfully engage with Tribes on how
programs and projects carried out under the Clean Water Act
will affect Tribal water resources.
The Clean Water Act has the tools that Tribes can use to
protect water, but the future of the Clean Water Act depends on
Federal agencies using those tools appropriately. I encourage
this committee to use its oversight authority to encourage EPA
and the Corps to do just that, and I look forward to working
with Federal agencies to make the implementation of the Clean
Water Act more effective.
The Clean Water Act has been a valuable resource in the
past for our Tribal clients and partners, but it is, by no
means, the end of the road to protecting our Tribal waters. The
ongoing impacts of climate change and its effects on Tribal
communities make protecting our water resources even more
critical.
Water is essential for Tribal communities to thrive. Water
is life.
Thank you again for the opportunity to be here today.
[Speaking Native language].
[Ms. Tsosie's prepared statement follows:]
Prepared Statement of Stefanie K. Tsosie, Senior Attorney, Tribal
Partnerships Program, Earthjustice
Thank you, Chair Napolitano, Ranking Member Rouzer, and all the
members of the subcommittee for the opportunity to testify. My name is
Stefanie Tsosie, and I am a senior attorney in the Tribal Partnerships
Program at Earthjustice. Earthjustice is a non-profit environmental law
firm and I have the honor and privilege of working with tribes and
Indigenous communities across the country to protect their natural and
cultural resources. I am an enrolled member of the Navajo Nation and I
come to my role as a litigator with an immense pride of where I am from
and the culture and land that raised me. Although my experiences and my
passion may be similar to those of the tribal clients and partners we
work with, I am not trying to speak for them. My testimony is intended
to provide examples of the experiences we have had at Earthjustice in
navigating the Clean Water Act, with an emphasis on the tribal clients
and partners we work with. The Act has been a critical tool for tribes
to protect the quality of precious waters over its first 50 years, yet
still holds unfulfilled potential and can be implemented even more
effectively in the future.
The Clean Water Act has been instrumental for many tribal
communities as a tool to protect their water resources. The Act and
implementing regulations provide an avenue for tribes to be treated as
states to administer water quality programs with the same authority as
federal agencies. Several tribal nations have used this program to
designate uses, which can include cultural uses, for waters on tribal
lands and have developed water quality standards to protect those uses.
Under the treatment as a state program, the Environmental Protection
Agency (EPA) can approve tribal water quality standards and the tribe
can then enforce those standards within tribal lands. This status also
affords tribes that may be downstream from, or adjacent to, a project
on a waterway that flows into their tribal lands a way to protect their
water quality from degradation or pollution caused by off-reservation
activity. This is a tangible tool that a few of our clients and
partners have used to protect precious water resources.
The federal permitting structure and requirements in the Clean
Water Act are also an avenue that many tribal nations use to
participate in decision-making for potential projects that may impact
tribal lands and waters. This range of participation can include
commenting on permits required under the Clean Water Act to consulting
with federal agencies under Section 106 of the National Historic
Preservation Act. When the Army Corps of Engineers (Corps or Army
Corps) issues a permit under the Clean Water Act, it is a federal
action that triggers other federal laws, protections, and procedures,
including government-to-government consultation. Tribes have used this
requirement to seek and provide input on the environmental review under
the National Environmental Policy Act, to consult on impacted flora and
fauna that may be listed under the Endangered Species Act, and to
consult on tribal historical resources under the National Historic
Preservation Act. Thus, the Clean Water Act permitting process can be a
critically important gateway for tribes to have input on potential
projects that may impact water resources that are not on or adjacent to
tribal lands.
Congress created the Clean Water Act ``to restore and maintain the
chemical, physical and biological integrity of the Nation's waters.''
\1\ Although many of our partners and clients have had some success in
utilizing the Clean Water Act to protect tribal resources, the Act is
only effective if it is being implemented correctly and consistent with
the goal of protecting water resources. Many of our tribal clients and
partners are still left out of the process entirely for decisions that
impact their lands and resources, and provided only token consultation
efforts if they are contacted at all. There are still significant
hurdles for tribal governments and communities regarding tribal
consultation. These hurdles are exacerbated when federal jurisdiction
under the Clean Water Act is narrowed, or in some cases eliminated--an
outcome that has occurred without any tribal consultation whatsoever.
---------------------------------------------------------------------------
\1\ 33 U.S.C. Sec. 1251(a).
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For example, Section 404 of the Clean Water Act prohibits dredge
and fill of material into waters of the United States without a permit
from the Army Corps of Engineers.\2\ This process begins with a
jurisdictional determination--the Army Corps can only require a permit
if the activity will be in jurisdictional ``waters of the United
States.'' Yet, even this first step can pose significant problems for
tribes and neighboring communities. The Army Corps does not always
consult with tribes before making a jurisdictional determination on
areas that affect tribal nations. The effect is that the Corps can make
a negative jurisdictional determination on an area that impacts tribal
resources without input from that tribe. Once the Army Corps makes that
determination, both the Corps' jurisdiction and the suite of federal
statutes, such as the National Environmental Policy Act, the National
Historic Preservation Act, and the Endangered Species Act, that must be
followed to permit an activity in that area can vanish. The effect can
be severe and tribes and local communities can be cut out of any
remaining permitting processes under state laws.
---------------------------------------------------------------------------
\2\ 33 U.S.C. Sec. 1344.
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Another example of where the delegation, and thus relinquishing, of
federal jurisdiction impacts tribes is through the state assumption of
Section 404 permitting.\3\ State-assumed permitting processes, even
though they are required to be at least as stringent as the Clean Water
Act, do not carry with them the federal trust responsibility to consult
with tribes or Native Organizations. We have worked on a case where a
state that assumed Section 404 permitting authority under the Clean
Water Act did not consult with the impacted tribe and did not include
the tribe in the permitting process, as would have been required by a
federal permitting process. In that case, both the Army Corps and the
Environmental Protection Agency claimed they could not provide any
redress to the Tribe. This led to language in a decision from the
Seventh Circuit acknowledging that ``the Tribe got the runaround here''
and the tribe's efforts ``ran into a legal labyrinth and regulatory
misdirection.'' \4\
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\3\ 33 U.S.C. Sec. 1344(g).
\4\ Menominee Indian Tribe of Wisconsin v. EPA et. al., 947 F.3d
1065, 1070, 1074 (7th Cir. 2020).
---------------------------------------------------------------------------
These examples of narrowing Section 404 jurisdiction ultimately
will weaken protection for the nation's waters, in direct contravention
of the goals of the Clean Water Act. The consequences of possibly
losing Clean Water Act jurisdiction are dire for tribes in particular,
as demonstrated in a case pending before the Supreme Court of the
United States, Sackett v. Environmental Protection Agency.\5\ For our
tribal clients, the elimination of federal jurisdiction over a wide
array of wetlands and waters would deprive them of important tools for
protecting water quality standards on reservation. It would also impair
the tribes' ability to enforce treaty rights and protect sacred waters
off reservation.\6\ This potential threat to the Clean Water Act is
also a threat to tribal lands and resources.
---------------------------------------------------------------------------
\5\ Sackett v. Environmental Protection Agency. 8 F.4th 1075 (9th
Cir. 2021, cert. granted, No. 21-454 (U.S. Jan. 24, 2022).
\6\ Brief Amicus Curiae for Menominee Indian Tribe of Wisconsin, et
al., Sackett v. Environmental Protection Agency, No. 21-454 (U.S. June
17, 2022), available at https://www.supremecourt.gov/DocketPDF/21/21-
454/228237/20220617081619977_21-
454%20Amicus%20Menominee%20Indian%20Tribe%20Of%20Wisconsin.pdf (last
accessed Sept. 15, 2022).
---------------------------------------------------------------------------
Another important tool for protecting water quality in the Clean
Water Act is the Section 401 program. This program is incredibly
important for tribes, yet our tribal clients and partners face
potential new hurdles in successfully implementing the Section 401
program. Section 401 requires that a ``certifying authority'',
including a state or tribe, review (or waive review) of whether an
activity will comply with applicable water quality standards before a
federal agency can issue a license or permit.\7\ If the certifying
authority concludes that the activity as proposed will not comply with
applicable water quality standards, which will result in an impairment
of waters within its jurisdiction, it can place conditions on the
license or permit, or must deny certification of the project altogether
if the project cannot be brought into compliance. Several tribes have
developed their own programs under Section 401 to be a certifying
authority and have promulgated water quality standards for tribal
waters.
---------------------------------------------------------------------------
\7\ 33 U.S.C. Sec. 1341(a)(1).
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In 2020, EPA finalized new Section 401 regulations that
dramatically departed from the previous rules, contravened the text and
purpose of the Clean Water Act, and curtailed state and tribal
authority to ensure integrity of their waters.\8\ A federal district
court ordered remand and vacatur of the rule on October 21, 2021,
however, the 2020 rule remains in effect due to the Supreme Court
staying that vacatur order in April. EPA has recently proposed a new
rule announcing an intention to bring EPA's regulations back in line
with the Clean Water Act, subsequent court precedent, and the
cooperative federalist structure that undergirds the Act.\9\
---------------------------------------------------------------------------
\8\ Clean Water Act Section 401 Certification Rule, 85 Fed. Reg.
42,210 (July 13, 2020) (2020 Rule).
\9\ 87 Fed. Reg. 35318-35381 (June 9, 2022).
---------------------------------------------------------------------------
It is imperative that states and tribes retain broad authority to
review projects that may impact their water quality--not just the
point-source discharge itself but the project ``activity as a whole,''
as intended by the Clean Water Act. A review of the whole project can
often reveal a much larger footprint of a project's impacts or the
impacts may be much greater in magnitude, and thus greater impacts to
tribal resources. In addition, as proposed by EPA in its new rule, the
certifying authority should be authorized to consider environmental
justice impacts of a proposed project, including human health impacts
on the local population; impacts to resources used for subsistence,
cultural resources and uses; treaty-protected resources; and historical
injustices such as damming, diversion, or reduction in flow of a water
body, and how those actions have impacted the resources and human
population, and whether the activity as a whole will have a long-term
impact on the watershed. EPA is required to act as the certifying
authority on behalf of states or tribes that do not have ``authority to
give such certification,'' and in carrying out this duty, we support
codification of the requirement that EPA comply with applicable
consultation policies and tribal treaty provisions. Finally, the
requirement that a certifying authority make its determination within a
``reasonable time'' must account for extensions, particularly where
delays in the certification process result from the applicant's failure
to provide complete or requested information about the project and
potential impacts.
Section 401 also provides downstream, or adjacent, tribes with
treatment as a state status and approved water quality standards, an
opportunity to weigh in on whether the upstream project will affect or
impair the water quality within their jurisdiction.\10\ For projects
requiring a federal permit under the Clean Water Act, the Corps might
handle the permitting process, but EPA has an opportunity to review
whether the project will have impacts on neighboring jurisdictions'
water quality. EPA has the authority to notify neighboring
jurisdictions of potential project impacts, and the downstream
jurisdiction can determine whether the project will affect their water
quality. Although the statutory language in Section 401 is clear on the
project materials required and the timing of when such a review period
begins, EPA and the Corps have differed in their interpretation of the
statute and their implementing regulations of this subsection. This
discrepancy has the potential to leave downstream tribal jurisdictions
out of the Section 401(a)(2) process and leave them without redress for
projects that can degrade waters within their jurisdiction.
---------------------------------------------------------------------------
\10\ 33 U.S.C. Sec. 1341(a)(2).
---------------------------------------------------------------------------
Several tribes have successfully used the Section 401 program to
regulate water quality. However, many tribal nations do not have
treatment as a state under the Section 401 program. For example, all of
Alaska's 229 tribes do not have treatment as a state and the state
routinely fails to consult with tribes. For tribes like these around
the country, the language of the statute becomes ever more important.
Section 401 imposes on all certifying authorities, including states, a
duty to safeguard waterways and ensure that the goals of the Clean
Water Act are met. Many of our tribal clients and partners either do
not have or are not eligible for treatment as a state under Section
401, and must work with state agencies to ensure that the statutory
requirements in Section 401 are upheld and implemented fairly and
consistently. If Section 401 is weakened, many of those tribes will
lose one of the strongest tools by which they can work with states to
weigh in on potentially damaging projects and ensure that their
resources are protected.
The Clean Water Act created many tools to achieve its goals, and
also made many parties responsible for its implementation: the Army
Corps of Engineers, EPA, states, and tribes. Unfortunately, states have
often been ill-equipped and ill-prepared to handle Clean Water Act
programs, putting water resources which tribes, and all other
communities, depend on in danger. The state of Florida, a state often
defined by its waters, is a prime example of where state-implemented
Clean Water Act programs have fallen short. Florida's National
Pollutant Discharge Elimination System (NPDES) program, under Section
402 of the Clean Water Act, has failed to ensure clean waterways, and
the state is increasingly known for its toxic algae outbreaks and
massive fish kills more than its pristine waters. Water pollution has
led to starvation of the state's beloved manatees, a once unthinkable
fate. The Trump administration's approval of Florida's inadequate
Section 404 program threatens rampant development, and because it is no
longer federally run, Florida now lacks the community engagement
required under NEPA, the tribal consultation required under NHPA, or
the robust listed species protection guaranteed under the ESA.
If we are to realize the promises and potential of the Clean Water
Act during its future, federal agencies must insist that states meet
their statutory obligations under federal law before they are
authorized to administer a federal program. In addition, federal
agencies must ensure that delegation of these authorities to states
does not absolve them of the federal trust responsibility to safeguard
tribal resources and consult with tribal governments on permitting
actions that impact their water and other resources. Far too often,
tribal communities are left out of the process entirely or are afforded
inadequate tribal consultation. This is a particular danger when states
assume Section 404 permitting authority.
The Army Corps and EPA must also communicate and work together to
ensure the goals of the Clean Water Act are met, and also to protect
tribal and community interests. The discrepancy between the Corps and
EPA is what left the tribe out of a remedy from the Seventh Circuit
when the state assumed Section 404 permitting authority. If the Corps
and EPA responded, the tribe may not have ``gotten the runaround.'' A
potential disagreement between the Corps' and EPA's respective
regulatory schemes implementing Section 401 could also leave a tribal
government that has the authority to regulate waters within its
jurisdiction out of the process entirely. If tribes are going to be
able to utilize the tools within the Clean Water Act to protect
precious water resources, then federal agencies must uphold their end
in ensuring tribes are consulted and they must implement the statutory
requirements as clearly stated in the Act.
For many of our tribal clients and partners the water resources
they are protecting are more than ``resources.'' Water is life. Water
is sacred. Water can be a tie to cultural, spiritual, and historical
resources that are essential to tribal identities. The Clean Water Act
has been a bedrock environmental statute for 50 years, but tribal lands
and waters, and the communities tied to them, date back to time
immemorial. The issues presented in this testimony are not
hypothetical, they involve clients and partners directly facing both
the strengths and pitfalls of the Clean Water Act. As a litigator,
advocate, and tribal member, I am grateful for the opportunity to lift
up these stories, and I am hopeful that we all can act so that we do
not have to wait another 50 years to realize the goals of the Clean
Water Act.
Mrs. Napolitano. Thank you very much, Ms. Tsosie.
Mr. Ross, you are recognized.
Please proceed.
Mr. Ross. Thank you, Chair Napolitano, Ranking Member
Rouzer, and members of the subcommittee. Good morning and thank
you for the opportunity to testify today. It truly is an honor
to be back before the committee.
I have spent the majority of my career working in or around
the Clean Water Act in some capacity, whether or not that is
representing clients in the private sector on how to comply
with the Clean Water Act, or working for the State of Wyoming,
advising the agency on how to implement the Clean Water Act and
its programs, or in serving as a leading environmental
prosecutor for the State of Wisconsin where we prosecuted Clean
Water Act or State-delegated Clean Water Act-style cases. And
then I also had the honor of running the Clean Water Act
program for the Federal Government.
And I can say, with all that experience, I can say
unequivocally that the Clean Water Act actually is
transformative. So, to whoever came up with the title for this
hearing, a gold star. It is very accurate.
I also believe the Clean Water Act is, if not the most, it
is certainly one of the most impactful and important pieces of
legislation this Congress or Congress has ever passed.
So, congratulations and thank you for holding this hearing.
I do believe it is important to take the time to look back,
to reflect, to take a look at our successes. I think they are
invigorating. I think they will inspire work as we look around
the corner at the work that remains left to do. It also allows
us to take a look back and see where we have had some gaps,
some problems. Is the act right now ready to be applied for the
next 50 years? And so, this type of hearing, looking back,
helps us think about whether or not we need to make
enhancements to the act, or whether or not we have funding, et
cetera. So, congratulations.
Without question, and as you have heard other witnesses in
the opening statements, I think the Clean Water Act has been a
success. In fact, if you take a look at the Association of
Clean Water Administrators, ACWA, as they are called, because
the water community loves its acronyms, they have this really,
really cool interactive book. I am sure there is a technical
name for it. But, effectively, it is a storybook. And you can
go spend some time taking a look at the great successes that
the Clean Water Act [inaudible] has come before. I do encourage
members of the subcommittee to take a look at that.
In my personal experience, those stories are representative
of the successes that the Clean Water Act has been responsible
for.
But we have major work left to do by no question. In fact,
we have far, far too many rivers and lakes that are still
impaired. I think we have a major challenge. We have done a
nice job with conventional pollutants, heavy metals, things
like that. But we have major, major work to do with nutrients.
I think for certain contaminants like nutrients, things aren't
getting better. I think they are probably getting worse. We
have emerging contaminant issues like PFAS and others that we
are going to have to grapple with. We are still having
questions about definitional issues which, I think after 50
years, is unfortunate. So, there is no question we have work to
do.
But for me, I want to highlight in my opening statement
what I see as the ``big three'' going forward for what the
Clean Water Act needs to focus on. The first--you have heard it
and it is important--it is infrastructure. Now, congratulations
to this Congress for financing significant investments in
helping us upgrade our water and wastewater systems. It is not
enough. And I think we need, going forward, the courage to be
able to fund, on an annual basis, greater investments in our
communities.
Our local communities are making those investments, but I
think it is incumbent upon the Federal Government and State
governments to help finance that, to help the private sector
finance that.
Look, I am concerned about the future financial viability
of future generations. I am concerned on how much money we are
spending. But I have a little bit of bias in the water sector.
And so, I fully support additional investment for
infrastructure.
I am really happy we are having a serious national
conversation about affordability. I do congratulate this
administration for its focus on environmental justice, focus on
getting resources to disadvantaged communities. I think it is
time, and I think it is admirable the work they are doing.
I think we have to be aware of what drives affordability.
Affordability is an environmental justice issue, but what
causes it is multifaceted. And so, as we think about
structuring regulations going forward under the Clean Water
Act, we also must remember that there are drinking water
issues, stormwater issues, and all those converge on a single
ratepayer. And so, we have to keep that in mind. That single
ratepayer is the affordability question, and all of us must
keep our eyes on that ball.
And, finally, I think the most important issue--and it
certainly does not get talked enough about, and I think
Congress really needs to spend some time thinking about it--is
the workforce issue. We would not be having the discussion
about the success of the Clean Water Act without the dedicated
professionals who actually implement it at the water and
wastewater treatment plants.
We have a dire situation facing us over the next decade
with retirement profile. The retirements are richly earned, but
we need to be thinking about that workforce pipeline. We are
investing billions of dollars in infrastructure. But if we do
not invest in human capital, those investments in the
infrastructure will be wasted.
So, congratulations on this hearing. I look forward to
participating. Thank you so much.
[Mr. Ross' prepared statement follows:]
Prepared Statement of David P. Ross, Esq., Partner, Troutman Pepper LLP
Chairs DeFazio and Napolitano, Ranking Members Graves and Rouzer,
and members of the Subcommittee, thank you for the opportunity to
testify today. It is an honor.
My name is Dave Ross. I am currently a partner at Troutman Pepper
LLP in our Washington, DC office, but I live just north of Lake Mendota
near Madison, Wisconsin. I appear before this Subcommittee in my
personal capacity and offer my perspectives from a career spent
navigating the many complexities of the Clean Water Act (CWA). While I
did not know it then, my first job out of college was created by the
CWA's secondary treatment standards for wastewater, as San Diego,
California was looking for innovative ways to reuse wastewater and
reduce future capacity demands at its main wastewater treatment plant.
I was hired to research various technologies for reclaiming wastewater
and looking back now I owe my professional lifelong interest in water
reuse to the CWA. I have counseled clients in the private sector on CWA
compliance, served as the lead water quality attorney for the State of
Wyoming, prosecuted water quality violations for the State of
Wisconsin, and managed the nation's CWA program for the federal
government. I therefore offer the Subcommittee a fairly unique
perspective on CWA implementation, at least based on my lessons learned
over the past quarter century.
I want to begin by congratulating the Subcommittee on holding this
hearing. In a world that seems drawn to the negative like mosquitos to
exhaled breath, it is nice to pause for a moment to celebrate the
vision of your predecessors and the hard work of countless Americans
who have worked to implement the CWA over the past fifty years. The
title of this hearing characterizes the CWA as ``transformative.'' It
many ways it was. And it continues to be one of the most significant
pieces of legislation this institution has ever passed.
I was born in 1971, the year in which the 92nd Congress was
crafting and debating this transformative legislation. It was an era
filled with vivid imagery of rivers on fire and water devoid of life. I
grew up near the banks of the Fox River in Appleton, Wisconsin. We
would play along the river and in the ravines that cut into our
neighborhoods. There were vines hanging from the trees that would allow
you to swing out over the water, but unlike those idyllic images of
plunging into the water cannonball style, we were terrified that the
vines would break before returning to the shore. The river was a
flowing cesspool.
Thanks to the passage of the CWA, over time the industrial
discharges were controlled, the wastewater treatment plants were
upgraded, and stormwater and watershed management plans were
implemented. Now bald eagles nest and hunt along its banks, people
recreate on its waters, and communities celebrate the river for its
contribution to the quality of life in the valley.
This story is not unique, as rivers and lakes throughout this
country have been revitalized and protected thanks to the multiple
program elements included in the Water Pollution Control Act Amendments
of 1972, as the CWA is more formally known. Cormorants now fish in the
Anacostia, the Milwaukee Riverwalk is a weekend destination, and we are
having serious discussions about swimming in the Potomac, an
unthinkable concept when I first moved to Washington, DC twenty years
ago.
These restorative highlights owe their success to the rather
ingenious structure of the CWA. Rather than focus on a single issue or
solution, Congress crafted a complex and yet interrelated suite of
programs that tackled water pollution on multiple fronts. The Act
provided funding mechanisms for communities to invest in
infrastructure, incentives for watershed-based planning, water quality-
focused standard setting and permitting designed to achieve those
standards, technology-forcing provisions and more nuanced recommended
criteria, anti-backsliding, adaptive management, enforcement,
institutionalized modernization, and public participation. Congress
also recognized the careful legal balance between the traditional land
and water use authority of the states and the commerce power of the
federal government, both explicitly and implicitly. Rare is the statute
that uses both regulatory and non-regulatory programs with equal
success and intention. In that regard, the CWA should be a model for
generations to come. The statute also provides immense planning and
implementation power to the states while ensuring a cabined but
powerful role for the federal government. In short, Congress did an
admirable job back in 1972, and in later amendments, crafting a
remarkably balanced and innovative piece of legislation.
But as with all things, the CWA has some imperfections. Anyone who
has spent more than a passing moment with the Act will wish Congress
had invested a bit more time defining the term ``navigable waters.''
And only a law school professor enjoys figuring out the definitional
distinctions between ``navigable waters'' and ``navigable waters of the
United States.'' Also, what did Congress mean when it wrote the phrase
``any other appropriate requirement of State law,'' why did it clearly
authorize partial program delegation under Section 402 and remain
silent under Section 404, and why craft a structure where folks need to
figure out whether a ditch is a point source or a water, or both?
Perhaps it was lawyers creating more work for future lawyers, but it
does demonstrate how difficult it is to craft clean and unambiguous
legislation.
While the CWA should be viewed as a success through a reflective
lens, it is by no means complete in its work. In fact, we have a long
way to go to achieve the full vision of the Act. There may be some
waters that will never be fishable or swimmable, but we have far too
many waters that remain legitimately impaired, and I suspect that as
method detection limits continue to drop and our public health sciences
continue to advance, the net list of impairments is likely to grow at
least for the foreseeable future. And for all our success reducing
heavy metals and other conventional pollutants in surface waters, our
greatest challenge, at least in terms of specific pollutants, remains
excess nutrients. The CWA has limitations in how it addresses non-point
sources of pollution, but we have creative tools that can be applied to
make significant progress in tackling this challenge. We have not yet
meaningfully adopted watershed-based permitting strategies,
environmental markets remain underutilized, and water quality trading
lacks regulatory certainty. I also believe the Section 319 program has
untapped and extremely valuable potential, but at current funding
levels it lacks the critical mass to make meaningful improvements in
water quality or to be applied more creatively.
As we look to the future, Congress and our state and federal
regulators need to remain vigilant in ensuring that the CWA and its
programs adapt to our changing needs. For example, we are finally
having a national discussion about water affordability, water security,
and aging infrastructure. Congress has provided a much-needed infusion
of capital to address our aging water and wastewater infrastructure,
including in our tribal and environmental justice communities, but
there is a disconnect between providing the capital and understanding
how that capital is deployed at the community level and the resources
that it will take to operate and maintain the new assets. Communities
are also looking to secure new sources of water, including embracing
water reuse, stormwater capture and desalination technologies, as they
design and plan for more resilient futures. But these communities must
also plan and adapt to a surge of new regulations coming at both the
federal and state level. All these developments impact affordability,
and we must be cognizant that with each new requirement, the price of
providing water and wastewater services increases and invariably is
paid by individual rate payers, many of whom already struggle with
monthly bills. This country needs to be much more intentional about
embracing integrated planning and recognizing that individual
regulatory decisions, while reasonable in a vacuum, have broader
societal implications.
As we modernize our way of thinking, we must continue to embrace
and deploy modern technology. The water sector is entering the era of
digitalization, and we need to incentivize the deployment of real-time
monitoring and related systems to optimize the performance of our
infrastructure. But we must also recognize that cybersecurity is of
paramount importance in our interconnected society and that the
wastewater sector needs to take cyber risks as seriously as the
drinking water sector.
It is also time we modernize the way we plan and budget for future
infrastructure investments. We need to institutionalize, annualize,
staff, and fund the needs survey process, and ensure that we are
gathering actionable intelligence about the state of our water and
wastewater infrastructure using the most advanced asset surveillance
techniques. While I am deeply concerned about our generation's apathy
for the financial security of future generations, my bias for the water
sector allows me to call for increased funding on an annualized basis
to ensure that we close the funding gap in what I consider to be the
most critical lifeline sector in our society. But to do that, we
rationally need better and more timely data.
I want to close with what I believe is likely the most overlooked,
or at least most under-appreciated, risk to the water sector. Over the
next decade, an unacceptably high percentage of water and wastewater
operators will retire. The same holds true for the skilled trades,
engineers, analysts, and other professionals who support that critical
workforce. There is no doubt in my mind that we would not be
celebrating the success of the CWA if not for the dedicated
professionals who operate our nation's wastewater treatment plants,
stormwater control features, and related infrastructure. The water
sector workforce does not receive the recognition it deserves in our
communities, in our state and federal regulatory agencies, and in the
halls of Congress.
Over the past year, we have been quick to praise the much-needed
investments in our water and wastewater infrastructure. But without a
skilled workforce to operate our treatment facilities, the investments
in brick and mortar will be wasted. Compounding the problem is the
acceleration of technology in this sector. The technology is outpacing
our training and development pipeline and will only accelerate as we
continue to see the convergence of drinking and wastewater operations
through water reuse strategies and the growing interest and need in
harvesting stormwater. Congress needs to think about what the water
sector looks like a decade from now and help state and local
communities plan for the retirement surge that is already occurring.
To the dedicated professionals within the Office of Water at the
U.S. Environmental Protection Agency, the thousands of experts working
within state agencies across the country, and the hundreds of thousands
of people who make the water sector the backbone of our way of life,
thank you. The success of the past fifty years is your accomplishment,
and the hope for the next fifty is your charge.
To the members of the Subcommittee, thanks again for the
opportunity to testify today. I look forward to answering any questions
you may have.
Mrs. Napolitano. Thank you, Mr. Ross, very much for your
comments.
And now we go to Ms. Gatz. You are on, Ms. Gatz.
Ms. Gatz. Chairwoman Napolitano, Chairman DeFazio, Ranking
Member Rouzer, and members of the subcommittee, good morning.
I am Laura Gatz, an environmental policy analyst for the
Congressional Research Service. On behalf of CRS, I would like
to thank you for inviting me to testify.
As requested by the subcommittee, my testimony focuses on
the Clean Water Act's history and goals, selected trends in its
implementation, and remaining challenges.
Growing concern about sewage and industrial waste polluting
our Nation's waterways prompted enactment of the Federal Water
Pollution Control Act in 1948. The act was the first major law
Congress enacted specifically to address water pollution. It
was designed to control pollution primarily through State
efforts with a limited Federal role.
By the 1970s, frustration over the pace of cleanup,
increased public interest in environmental protection, and a
growing perception that existing law was inadequate set the
stage for major changes to the statute.
On October 18, 1972, Congress passed sweeping amendments to
the Federal Water Pollution Control Act, which became known as
the Clean Water Act. The amendments significantly reorganized
and expanded the statute, establishing a new framework to
control water pollution. The amendments set ambitious goals for
water quality, established the structure for regulating
pollutant discharges, and increased Federal assistance for
wastewater treatment facility construction.
The amendments expanded the Federal role, giving the
recently established EPA authority to implement the act's
programs, while retaining the State's role in day-to-day
implementation.
The Clean Water Act's objective, as stated in 1972, is to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. The act also established two
goals: To eliminate the discharge of pollutants into navigable
waters by 1985 and, as an interim goal, to achieve water
quality that is fishable and swimmable by July 1, 1983. While
those dates have long passed, efforts to obtain the goals
continue.
The past 50 years of the Clean Water Act's implementation
have yielded improvements. The act's funding and permitting
programs have done much to reduce direct discharges of sewage
and industrial waste to the Nation's waterways.
The 1972 Clean Water Act authorized grants for wastewater
treatment facility construction. Between 1973 and 1990,
Congress appropriated nearly $52 billion under the program,
representing the largest nonmilitary public works program since
the Interstate Highway System.
In 1987, Clean Water Act amendments effectively replaced
the grant's program with the Clean Water State Revolving Fund
program, which has since received more than $49 billion in
appropriations.
EPA and States have used their permitting authorities under
the Clean Water Act to reduce discharges from direct, or point,
sources of pollution. As these sources became better controlled
over time, attention turned to the remaining sources preventing
attainment of water quality goals, including stormwater
discharges and nonpoint, or diffuse, sources of pollution.
The amendments to the Clean Water Act in 1987 added
stormwater permitting requirements. In the decades following
promulgation of these requirements, many municipalities have
faced challenges in implementing and funding efforts to manage
stormwater.
The 1987 amendments also established requirements for
States to develop plans to address nonpoint source pollution.
Since that time, concern about nonpoint source pollution and
its significance to remaining water quality issues has
persisted. Notably, EPA recognizes that nutrient pollution,
much of which comes from nonpoint sources such as runoff from
agricultural and residential areas, is one of the Nation's most
challenging water quality problems. The Clean Water Act does
not authorize EPA to regulate nonpoint sources, which some
observe as a challenge in achieving the act's objectives.
The Clean Water Act has also yielded some success through
its place-based restoration programs including its Geographic
Programs and National Estuary Program, which have bolstered
stakeholder coordination, leveraged resources, and led to the
development of comprehensive restoration plans.
Challenges remain as population growth, development, and
climate-related impacts limit progress in addressing remaining
water quality issues. In addition, infrastructure funding needs
persist as States and localities address aging systems and
needs for increased capacity and resilience. These and other
aspects of implementation will continue to present Congress,
EPA, States, and others with hurdles in their efforts to
achieve the ambitious goals of the act.
This concludes my brief remarks. Thank you for the
opportunity to testify, and I look forward to your questions.
[Ms. Gatz's prepared statement follows:]
Prepared Statement of Laura Gatz, Environmental Policy Analyst,
Congressional Research Service
Chairwoman Napolitano, Ranking Member Rouzer, and Members of the
subcommittee, good morning. My name is Laura Gatz, and I am an analyst
in Environmental Policy for the Congressional Research Service (CRS).
On behalf of CRS, I want to thank you for inviting me to testify today.
I have been asked by the Subcommittee to discuss the history of the
Clean Water Act, including the goals of the act, selected trends in its
implementation identified by the subcommittee, and challenges that
remain.
In serving the U.S. Congress on a nonpartisan and objective basis,
CRS does not take positions on legislation and makes no recommendations
to policymakers. My testimony draws on my own area of specialization at
CRS--the Clean Water Act and water quality. I work with a team of
analysts with relevant expertise, including policy, economics,
toxicology, chemistry, engineering, and law to address related issues
for Congress. My CRS colleagues and I remain available to assist the
subcommittee in its development and consideration of water quality
issues and other legislation.
History of the Clean Water Act
The origins of the modern-day Clean Water Act date back to the 1899
Rivers and Harbors Act (RHA), which was the first use of a federal
statute to control water pollution.\1\ Under Section 13 of the RHA,
sometimes referred to as the ``Refuse Act,'' it was unlawful to
discharge ``any refuse matter of any kind or description whatever other
than that flowing from streets and sewers and passing therefrom in a
liquid state into any navigable water of the United States, or into any
tributary of any navigable water.'' \2\ Although the statute focused on
preventing obstacles to navigation, it became a tool for controlling
water pollution.\3\
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\1\ 33 U.S.C. Sec. 401 et seq.
\2\ 33 U.S.C. Sec. 407.
\3\ Joel M. Gross and Lynn Dodge, ``History of the Clean Water
Act,'' in Clean Water Act (American Bar Association, 2005), p. 5.
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The Federal Water Pollution Control Act of 1948 (FWPCA) was the
first major law enacted by Congress specifically to address water
pollution in the United States.\4\ Growing concern about untreated
domestic sewage and industrial waste polluting waterways, and the
impacts on public health and welfare, prompted its enactment.\5\ The
FWPCA was designed to control water pollution primarily through state
efforts, with a limited federal role. It did not include federally
required goals, objectives, limits, or guidelines. Rather, the federal
role consisted mainly of support for research and limited loans to
state and local governments to assist in the construction of wastewater
treatment facilities. Federal involvement in enforcement was limited to
matters involving interstate waters and only with the consent of the
state in which the pollution originated.
---------------------------------------------------------------------------
\4\ P.L. 80-845.
\5\ See, for example, U.S. Congress, House Committee on Public
Works, Water Pollution Control, Bills to Provide for Water-Pollution-
Control Activities in the United States Public Health Service, and for
Other Purposes, 80th Cong., 1st sess., June 1947.
---------------------------------------------------------------------------
During the latter half of the 1950s and well into the 1960s,
several amendments to the FWPCA shaped water pollution control
programs.\6\ The amendments dealt largely with federal assistance to
municipal dischargers and with federal enforcement programs for all
dischargers. During this period, the federal role and federal
jurisdiction were gradually extended to include navigable intrastate
waters, as well as interstate waters. Water quality standards became a
feature of the law in 1965, requiring states to set standards for
interstate waters that would be used to determine actual pollution
levels and pollution control requirements.\7\ By the late 1960s, a
widespread perception by a range of stakeholders existed that the
enforcement procedures were too time-consuming, and that the water
quality standards approach was flawed because of difficulties in
linking a particular discharger to violations of stream quality
standards.\8\ Additionally, frustration among stakeholders mounted over
the slow pace of pollution cleanup efforts, and the concern that
control technologies were being developed but not applied to the
problems.\9\ These perceptions and frustrations, along with increased
public interest in environmental protection, set the stage for the 1972
amendments.
---------------------------------------------------------------------------
\6\ P.L. 84-660, P.L. 87-88, P.L. 89-234, and P.L. 89-753.
\7\ P.L. 89-234.
\8\ Joan M. Kovalic, The Clean Water Act with Amendments
(Washington, D.C.: The Water Pollution Control Federation, 1982), p. 7.
\9\ Ibid.
---------------------------------------------------------------------------
In congressional hearings and reports in the early 1970s, some
Members of Congress contended that the existing water pollution control
legislation was inadequate, and that many of the nation's waters
continued to be polluted, with those waters near urban and industrial
areas ``unfit for most purposes.'' \10\
---------------------------------------------------------------------------
\10\ Congressional Research Service (CRS), A Legislative History of
the Water Pollution Control Act Amendments of 1972, Serial No. 93-1,
January 1973, pp. 1412, 1420-1425.
---------------------------------------------------------------------------
On October 18, 1972, Congress passed sweeping amendments to the
FWPCA, which gave the act its current shape.\11\ As amended in 1972,
the law became commonly known as the Clean Water Act (CWA). The 1972
amendments significantly reorganized and expanded the FWPCA,
establishing a new framework to control water pollution. Among the
revisions, the amendments set ambitious goals for water quality;
established the basic structure for regulating pollutant discharges
into waters of the United States; strengthened and streamlined
enforcement; and increased federal assistance for municipal treatment
facility construction. The amendments expanded the federal role, giving
the recently established U.S. Environmental Protection Agency (EPA)
authority to implement the act's programs while retaining the states'
role of day-to-day implementation of the law.\12\
---------------------------------------------------------------------------
\11\ P.L. 92-500.
\12\ Ibid.
---------------------------------------------------------------------------
The CWA's objective, as stated in the 1972 amendments, is ``to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' \13\ The CWA also established two goals: to
eliminate the discharge of pollutants into navigable waters by 1985;
and as an interim goal, wherever attainable, to achieve water quality
that is ``fishable'' and ``swimmable'' by July 1, 1983.\14\ Although
much progress has been made, those goals have not been met fully in
many places. While those dates have long passed, the goals remain, and
efforts to attain them continue.
---------------------------------------------------------------------------
\13\ CWA Sec. 101(a); 33 U.S.C. Sec. 1251.
\14\ Ibid. Fishable and swimmable are the terms commonly used to
reflect the goal that waters provide for the protection and propagation
of fish, shellfish, and wildlife, as well as for recreation in and on
the water.
---------------------------------------------------------------------------
Over the years, a number of laws have amended portions of the CWA.
While a comprehensive discussion of the amendments is beyond the scope
of this testimony, some of these amendments are discussed below in the
context of trends in CWA implementation.
Selected Trends in Clean Water Act Implementation
The CWA consists of six titles and a range of provisions, which
collectively aim to achieve the act's objectives. The following
discussion of trends focuses on selected elements of the statute,
identified by the subcommittee:
federal financial assistance for wastewater
infrastructure;
permitting programs to reduce discharges of pollutants
into waters of the United States;
efforts to manage more diffuse nonpoint source pollution;
and
place-based restoration programs, such as the National
Estuary Program and CWA Geographic Programs.
Wastewater Infrastructure Funding \15\
---------------------------------------------------------------------------
\15\ Jonathan Ramseur, CRS Specialist in Environmental Policy,
authored this section.
---------------------------------------------------------------------------
Prior to the 1972 amendments to the CWA, the federal government
administered a comparatively small program of aid for constructing
municipal wastewater treatment plants.\16\
---------------------------------------------------------------------------
\16\ The FWPCA of 1948 (P.L. 80-845) first started the federal aid
to municipal wastewater treatment authorities.
---------------------------------------------------------------------------
Title II of the 1972 CWA authorized grants to states for wastewater
treatment plant construction under a program administered by the EPA.
Federal funds were provided through annual appropriations under a
state-by-state allocation formula contained in the act. States used
their annual allotments to make grants to local governments to build or
upgrade categories of wastewater treatment projects, including
treatment plants and related sewer infrastructure. Between FY1973 and
FY1990, Congress appropriated nearly $52 billion under the CWA Title II
program, representing the largest nonmilitary public works program
since the Interstate Highway System.\17\
---------------------------------------------------------------------------
\17\ This figure is nominal (not adjusted for inflation).
---------------------------------------------------------------------------
The Water Quality Act of 1987 (P.L. 100-4) amended the CWA to
establish the Clean Water State Revolving Fund (CWSRF) program. The
CWSRF program is the main federal funding program for wastewater
infrastructure projects throughout the country.\18\ After a two-year
transition period, this program effectively replaced the CWA Title II
grants program. Since the first appropriations for the CWSRF program in
FY1989, Congress has provided more than $49 billion in grants to states
and Puerto Rico to capitalize their CWSRFs.\19\ According to EPA's
national CWSRF funding data report, federal funds--together with state
matching contributions, repaid loans, and other funds--have provided
$153 billion in SRF assistance to support more than 44,000 SRF loans
and debt refinance agreements.\20\ Figure 1 illustrates the history of
EPA wastewater infrastructure appropriations from FY1973 to FY2026 in
both nominal dollars and inflation-adjusted (2018) dollars.\21\
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\18\ 33 U.S.C. Sec. Sec. 1381-1387. For more details regarding the
history of the CWSRF and its predecessor grant program in CWA Title II,
see CRS Report 96-647, Water Infrastructure Financing: History of EPA
Appropriations, by Jonathan L. Ramseur and Mary Tiemann.
\19\ U.S. territories, Indian tribes, and the District of Columbia
receive grants from EPA under separate CWA authorities. This figure is
nominal (not adjusted for inflation).
\20\ EPA, Clean Water SRF Program Information, National Summary,
February 2022, https://www.epa.gov/cwsrf/clean-water-state-revolving-
fund-cwsrf-national-information-management-system-reports. This figure
is nominal (not adjusted for inflation).
\21\ The increase in FY2009 was due to $4.0 billion in emergency
supplemental appropriations from the American Recovery and Reinvestment
Act of 2009 (ARRA; P.L. 111-5). For more information, see CRS Report
R46464, EPA Water Infrastructure Funding in the American Recovery and
Reinvestment Act of 2009, by Jonathan L. Ramseur and Elena H.
Humphreys. The appropriations for FY2022 through FY2026 include
emergency supplemental appropriations provided in the Infrastructure
Investment and Jobs Act (IIJA; P.L. 117-58). The FY2022 CWSRF
appropriations include both supplemental appropriations from IIJA of
$1.902 billion and regular appropriations (P.L. 117-103), a portion of
which did not go directly to the CWSRF program. The regular
appropriations for FY2022 in P.L. 117-103 include ``community project
funding/congressionally directed spending'' (CPF/CDS) items, which some
have referred to as ``earmarks.'' The act sets aside 27% ($443.6
million) of the FY2022 CWSRF appropriations ($1.639 billion) to CPF/
CDS. Such funds are to be distributed directly to recipients, instead
of to states' SRF programs. Thus, the reservation of funds effectively
decreases the total amount available for allotment as state
capitalization grants to $1.195 billion. The combined FY2022
appropriations illustrated in the figure for the CWSRF program are
$3.097 billion.
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Figure 1. EPA Wastewater Infrastructure Annual Appropriations
(adjusted [$2018] and not adjusted for inflation [nominal])
Source: Prepared by CRS using information from annual appropriations
acts, committee reports, and explanatory statements presented in the
Congressional Record. Amounts reflect applicable rescissions and
supplemental appropriations, including $4 billion in the American
Recovery and Reinvestment Act of 2009 (P.L. 111-5). Constant dollars
calculated from Office of Management of Budget, Table 10.1, ``Gross
Domestic Product and Deflators Used in the Historical Tables: 1940-
2026,'' https://www.whitehouse.gov/omb/historical-tables/. The deflator
values used for FY2021 through FY2026 are estimates.
Notes: The funding levels for FY2023 through FY2026 are likely to
change reflecting funding for the CWSRF through annual appropriations.
The Consolidated Appropriations Act, 2022 provides $1.639 billion for
the CWSRF program in FY2022. Of this amount, $443 million would be
provided as ``Community Project Funding Items/Congressionally Directed
Spending,'' and is not included in the figure. In addition, the figure
does not include funding for special purpose projects (often referred
to as ``earmarks'') that occurred between FY1989 and FY2011. For more
historical details, see CRS Report 96-647, Water Infrastructure
Financing: History of EPA Appropriations, by Jonathan L. Ramseur and
Mary Tiemann.
Figure 2 illustrates the enacted appropriations for the CWSRF
program. The figure depicts regular appropriations between FY1989 and
FY2022. As the figure indicates, regular appropriation levels have
remained relatively consistent in recent years. The figure also
illustrates (1) the supplemental appropriations from the American
Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5), which
provided $4 billion in FY2009, and (2) supplemental appropriations from
the Infrastructure Investment and Jobs Act (IIJA; P.L. 117-58), which
provides supplemental appropriations for FY2022 through FY2026.\22\
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\22\ For more information, see CRS Report R46892, Infrastructure
Investment and Jobs Act (IIJA): Drinking Water and Wastewater
Infrastructure, by Elena H. Humphreys and Jonathan L. Ramseur.
---------------------------------------------------------------------------
Figure 2. CWSRF Appropriations: FY1989 FY2026
(not adjusted for inflation)
Source: Prepared by CRS using information from annual appropriations
acts, ARRA, IIJA, committee reports, and explanatory statements
presented in the Congressional Record.
Notes: ARRA = American Recovery and Reinvestment Act of 2009 (P.L. 111-
5); IIJA = Infrastructure Investment and Jobs Act (P.L. 117-58), signed
by President Biden on November 8, 2021. IIJA provided supplemental
appropriations for the CWSRF for FY2022 through FY2026. The funding
levels for FY2023 through FY2026 are likely to change reflecting
funding for the CWSRF through annual appropriations. The Consolidated
Appropriations Act, 2022 provides $1.639 billion for the CWSRF program
in FY2022. Of this amount, $443 million would be provided as
``Community Project Funding Items/Congressionally Directed Spending,''
and is not included in the figure. In addition, the figure does not
include funding for special purpose projects (often referred to as
``earmarks'') that occurred between FY1989 and FY2011. For more
historical details, see CRS Report 96-647, Water Infrastructure
Financing: History of EPA Appropriations, by Jonathan L. Ramseur and
Mary Tiemann.
Over time, Congress has amended the list of projects and activities
eligible for CWSRF assistance. Prior to 2014, states were authorized to
provide CWSRF financial assistance for a range of projects and
activities that was more narrow than the list of eligible projects and
activities available today. This earlier list generally included the
construction or repair of publicly owned municipal wastewater treatment
plants, related equipment and piping, and stormwater systems. Prior to
2014, additional eligible uses included implementation of approved
state nonpoint source management programs, and development and
implementation of Comprehensive Conservation and Management Plans
developed under the National Estuary Program.\23\
---------------------------------------------------------------------------
\23\ 33 U.S.C. Sec. 1383(c).
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In 2014, the Water Resources Reform and Development Act of 2014
(WRRDA; P.L. 113-121) amended the CWA, adding several projects and
activities, including measures to manage, reduce, treat, or recapture
stormwater or subsurface drainage water; replacement of decentralized
treatment systems (e.g., septic tanks); energy-efficiency improvements
at treatment works; reuse and recycling of wastewater or stormwater;
and security improvements at treatment works.
In 2018, the America's Water Infrastructure Act of 2018 (AWIA; P.L.
115-270) amended the list of eligible activities to allow qualified
nonprofits to provide assistance to certain individuals for the repair
or replacement of existing decentralized wastewater treatment systems,
or for the connection of an individual household to a centralized
publicly owned treatment works.
Although the CWSRF program is generally a loan program, the CWSRF
program authorizes states to provide SRF recipients with additional
subsidization (e.g., ``forgiveness of principal'' and ``negative
interest loans'') under certain conditions. The conditions for awarding
this support include either (1) affordability criteria (as determined
by the state) for the entity receiving the subsidization; or (2)
project eligibility, which include projects that (i) address water-
efficiency goals; (ii) address energy-efficiency goals; (iii) mitigate
stormwater runoff; or (iv) encourage sustainable project planning,
design, and construction. IIJA amended the CWSRF statutory provisions
to direct states to use at least 10% of their capitalization grants for
additional subsidization under certain conditions. This ``floor'' for
additional subsidization would apply to grants provided through the
regular appropriations process in the future. In addition,
appropriations acts from recent years have required states to use
minimum percentages of their federal grant amounts to provide
additional subsidization. This trend began with the ARRA in 2009 (P.L.
111-5), which required states to use at least 50% of their funds to
``provide additional subsidization to eligible recipients in the form
of forgiveness of principal, negative interest loans or grants or any
combination of these.'' Subsequent appropriation acts have included
similar conditions, with varying percentages of subsidization. The
FY2022 appropriations act (P.L. 117-103) contains a provision that
requires states to use 10% of their capitalization grant for additional
subsidization. In an EPA memorandum on May 12, 2022, EPA interprets
this provision as ``additive'' to the 10% floor in the CWA.
In addition to the CWSRF program, Congress has established other
funding and financing programs in recent years that support wastewater
infrastructure projects.\24\ These programs include the following:
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\24\ For more information, see CRS Report R46471, Federally
Supported Projects and Programs for Wastewater, Drinking Water, and
Water Supply Infrastructure, coordinated by Jonathan L. Ramseur.
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Water Infrastructure Finance and Innovation Act (WIFIA)
Program. Congress established the WIFIA program in the Water Resources
Reform and Development Act of 2014 (P.L. 113-121; 33 U.S.C.
Sec. Sec. 3901-3914). WIFIA authorizes EPA and the U.S. Army Corps of
Engineers (USACE) to provide credit assistance--secured or direct
loans--for a range of water infrastructure projects.\25\ Under WIFIA,
EPA provides credit assistance directly to an eligible recipient. To be
eligible for WIFIA assistance, projects must generally cost $20 million
or more. The WIFIA program can provide a large amount of credit
assistance relative to its budget authority. Annual WIFIA
appropriations primarily cover long-term credit subsidy costs, which
are calculated to cover the risk that the loan will not be repaid. As
such, relative to its budget authority (e.g., $63.5 million in FY2022
to cover subsidy costs), appropriations provide a larger amount of
total credit assistance. For example, Congress capped the FY2022 WIFIA
credit assistance authority at $12.5 billion.
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\25\ For information on USACE implementation, see CRS Insight
IN11577, U.S. Army Corps of Engineers Civil Works Infrastructure
Financing Program (CWIFP): Status and Issues.
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Sewer Overflow and Stormwater Grant Program. In 2000, the
Consolidated Appropriations Act, 2001 (P.L. 106-554) amended the CWA by
adding Section 221, which authorized EPA to establish a grant program
to address overflows from municipal combined sewer systems and from
municipal separate sanitary sewers. In 2018, AWIA modified the program
to include stormwater infrastructure. P.L. 117-103 provides $43.0
million for FY2022.
Infrastructure Investment and Jobs Act (IIJA)
Programs.\26\ IIJA established several new grant programs that address
specific objectives, such as efficiency, resiliency, and support for
infrastructure in low-income communities or communities with smaller
populations. The act authorized appropriations for these new programs,
but to date, these programs have not received appropriations.
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\26\ For more information, see CRS Report R46892, Infrastructure
Investment and Jobs Act (IIJA): Drinking Water and Wastewater
Infrastructure, by Elena H. Humphreys and Jonathan L. Ramseur.
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Permitting Programs
Another key aspect of the CWA is the statute's permit requirements.
The CWA prohibits the discharge of pollutants from any point source
(i.e., a discrete conveyance such as a pipe or outfall) to waters of
the United States without a permit.\27\ One such permit, issued by
states and EPA under the act's National Pollutant Discharge Elimination
System (NPDES) program, applies to industrial and municipal
dischargers.\28\ These permits incorporate both technology-based and
water-quality-based requirements. A separate type of permit, issued
primarily by the USACE under Section 404 of the act, is required to
discharge dredged or fill material into waters of the United
States.\29\ Both of these permitting programs were established in the
1972 CWA.
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\27\ 33 U.S.C. Sec. 1311.
\28\ 33 U.S.C. Sec. 1342. Under CWA Section 402, the authority to
issue NPDES permits to regulated sources and enforce permits is
delegated to states that meet the statutory criteria for delegation
(e.g., adequate laws and procedures). EPA has authorized 47 states and
1 territory to administer the NPDES permit program. EPA administers
NPDES permits in Massachusetts, New Hampshire, New Mexico, the District
of Columbia, and certain territories and Indian lands. Per CWA Section
502(3) (33 U.S.C. Sec. 1362(3)), state is defined to include a state,
the District of Columbia, or any of the U.S. territories. Per CWA
Section 518 (33 U.S.C. Sec. 1377), EPA is authorized to treat an Indian
tribe as a state for certain sections of the CWA, including the
sections pertaining to CWA permitting.
\29\ 33 U.S.C. Sec. 1344.
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For many years following the enactment of the CWA, EPA and states
used their NPDES permitting authorities to reduce discharges from
municipal wastewater treatment facilities and industrial facilities. As
these more discrete sources of pollution became better controlled,
attention turned to the remaining sources that continued to prevent
attainment of water quality standards. In the 1987 CWA amendments,
Congress directed EPA to implement permitting requirements for
stormwater discharges from municipal separate storm sewer systems,
construction activities, and industrial activities.\30\
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\30\ P.L. 100-4.
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In the decades following the promulgation of stormwater permitting
requirements, municipalities, in particular, have faced challenges in
complying with these permitting requirements, and in funding efforts to
achieve compliance, particularly in areas with more stringent permit
limits.\31\ Some of these challenges have been exacerbated in more
recent years by increased rainfall and flooding events.\32\ Population
growth and development have also, in some areas, led to increases in
impervious surfaces (e.g., roads, parking lots) that block rainfall
from infiltrating into the subsurface. These changes may increase both
the volume and pollutant concentrations in the stormwater runoff.
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\31\ Environmental Financial Advisory Board, Evaluating Stormwater
Infrastructure Funding and Financing, March 2020, https://www.epa.gov/
sites/default/files/2020-04/documents/efab-
evaluating_stormwater_infrastructure_funding_and_financing.pdf.
\32\ Ibid.
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Congress has responded to the concerns of municipalities through
efforts such as modifying eligible uses for CWSRF funds and by amending
the eligibility provisions for the CWA Section 221 grant program
(discussed above) to include stormwater infrastructure. Congress and
EPA have also taken action to support the use of green infrastructure--
measures that use plant or soil systems, permeable pavement, or other
similar surfaces to help reduce stormwater runoff.\33\ Some studies
have shown that green infrastructure may be more cost-effective than
traditional gray infrastructure, particularly when co-benefits are
considered.\34\
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\33\ The American Recovery and Reinvestment Act of 2009 (ARRA: P.L.
111-5) required states to use not less than 20% of ARRA grants ``for
projects to address green infrastructure, water or energy efficiency
improvements or other environmentally innovative activities.''
Additionally, the Water Infrastructure Improvement Act (P.L. 115-436),
which was enacted in January 2019, amended the CWA to add a definition
for the term green infrastructure (at 33 U.S.C. Sec. 1362(27) and a new
section directing the EPA Administrator to ``promote the use of green
infrastructure in, and coordinate the integration of green
infrastructure into, permitting and enforcement under this Act,
planning efforts, research, technical assistance, and funding guidance
of the Environmental Protection Agency.''
\34\ EPA, ``Green Infrastructure Cost-Benefit Resources,'' https://
www.epa.gov/green-infrastructure/green-infrastructure-cost-benefit-
resources.
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Efforts to Manage Nonpoint Source Pollution
Prior to the 1987 CWA amendments, CWA programs were primarily
directed at point source pollution. Except for general planning
activities, little attention had been given to nonpoint source
pollution (runoff from agricultural lands, forests, and urban areas),
despite estimates that it might represent a significant source of the
nation's remaining surface water pollution issues.\35\ Amendments to
the CWA in 1987 established measures intended to address such pollution
by directing states to develop and implement nonpoint source management
programs.\36\ Further, the 1987 amendments authorized EPA to provide
funds to implement nonpoint source management programs. Under Section
319, EPA awards grants to states, territories, and tribes to support a
variety of activities including technical assistance, financial
assistance, education, training, technology transfer, demonstration
projects, and monitoring to assess the success of specific nonpoint
source implementation projects.\37\ Figure 3 illustrates the history of
Section 319 grant funds provided by EPA, in millions, from 1990 through
2022.
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\35\ See, for example, ``Senate consideration and passage of 100
H.R. 1,'' Congressional Record, vol. 133 (January 21, 1987), pp. 1578,
1581, 1583.
\36\ P.L. 100-4.
\37\ EPA, ``319 Grant Program for States and Territories,'' https:/
/www.epa.gov/nps/319-grant-program-states-and-territories.
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Over the past several decades, concern about nonpoint source
pollution, and its significance to remaining water quality issues, has
persisted. Notably, EPA recognizes that nutrient pollution--including
nitrogen and phosphorus--is one of the nation's most serious,
pervasive, costly, and challenging water quality problems.\38\ Nutrient
pollution contributes to toxic harmful algal blooms and anoxic zones,
contamination of drinking water sources, and costly impacts on
recreation, tourism, and fisheries. While both point and nonpoint
sources contribute nutrients to waterways, it is widely recognized that
nonpoint sources play a substantial role in nutrient pollution in many
watersheds.\39\ The CWA does not authorize EPA to regulate nonpoint
sources. EPA's authority to address nonpoint sources involves the use
of grants and funding--such as Section 319--and related grants and
technical assistance. Some argue that the voluntary nature of
controlling nonpoint sources is a key challenge in achieving the act's
water quality objectives. Some also argue that EPA's current role
emphasizes the importance of funds that support nonpoint source
pollution reduction efforts.
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\38\ EPA, ``Nutrient Pollution,'' https://www.epa.gov/
nutrientpollution/issue. See also Joel Beauvais, Deputy Assistant
Administrator, EPA, memorandum to State Environmental Commissioners,
State Water Directors, ``Renewed Call to Action to Reduce Nutrient
Pollution and Support for Incremental Actions to Protect Water Quality
and Public Health,'' September 22, 2016, https://www.epa.gov/nutrient-
policy-data/renewed-call-action-reduce-nutrient-pollution-and-support-
incremental-actions.
\39\ Ibid.
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Figure 3. CWA Section 319 Grant Funds: 1990 2022
(as reported by EPA, in millions; not adjusted for inflation)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: EPA, 319 Grant Program for States and Territories, https://
www.epa.gov/nps/319-grant-program-states-and-territories.
Place-Based Restoration Programs
Although not initially included in the 1972 CWA, place-based
restoration programs, another key element of the CWA, have been
established through amendments to the act. Place-based restoration
programs include the National Estuary Program (NEP) and CWA Geographic
Programs.
National Estuary Program (NEP)
Congress established the NEP through amendments to the CWA in
1987.\40\ This program, administered by the EPA, identifies ``estuaries
of national significance'' \41\ that are threatened by pollution,
development, or overuse. Under this program EPA awards grants intended
to support the development and implementation of Comprehensive
Conservation and Management Plans (CCMPs) to restore and protect
them.\42\ CCMPs are long-term plans that contain actions to address a
range of environmental issues, including water quality, habitat, land
use, fish and wildlife, and invasive species in the estuary. Through
the NEP, EPA works with federal agencies, state and local governments,
nonprofit organizations, industry, and citizens to address the
environmental challenges in each estuary. The NEP includes 28 estuaries
located along the Atlantic, Gulf, and Pacific Coasts, and in Puerto
Rico.\43\ Congress has reauthorized the NEP program several times;
changes have included establishing new competitive grant awards to
address urgent and challenging issues that threaten the ecological and
economic well-being of coastal areas, or that relate to the coastal
resiliency of NEP estuaries.\44\
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\40\ P.L. 100-4.
\41\ The CWA does not define ``estuary of national significance.''
However, to facilitate its review of estuary nominations, EPA developed
guidance on the nomination process. Regarding national significance,
governors were to provide information on why the estuary is important
to the nation, the geographic scope of the estuary, and how lessons
learned from the estuary could apply to other areas, among other
things. EPA, The National Estuary Program: Final Guidance on the
Contents of a Governor's Nomination, January 1990.
\42\ P.L. 100-4.
\43\ EPA, ``Overview of the National Estuary Program,'' https://
www.epa.gov/nep/overview-national-estuary-program. Accessed August 12,
2021.
\44\ P.L. 114-162 and P.L. 116-337. CWA Sec. 320(g)(4)(C) lists
seven specific issues, such as extensive seagrass habitat losses that
result in significant impacts on fisheries and water quality, recurring
harmful algal blooms, and unusual marine mammal mortalities, that are
included as ``urgent and challenging issues.''
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CWA Geographic Programs
The CWA Geographic Programs, administered by EPA, also reflect
broader collaborative efforts to improve some of the nation's aquatic
resources that Congress, EPA, and states have identified as
economically and ecologically valuable. Some of the Geographic Programs
have specific statutory authority under individual provisions of the
CWA (e.g., Chesapeake Bay, Great Lakes, Long Island Sound, Lake
Champlain, Lake Pontchartrain Basin, and Columbia River Basin). The
1987 amendments to the CWA added the Chesapeake Bay and Great Lakes
provisions to the statute.\45\ Congress later added provisions for Long
Island Sound and Lake Champlain in 1990,\46\ for Lake Pontchartrain in
2000,\47\ and for the Columbia River Basin in 2016.\48\
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\45\ P.L. 100-4. Chesapeake Bay (33 U.S.C. Sec. 1267), Great Lakes
(33 U.S.C. Sec. 1268).
\46\ P.L. 101-596. Long Island Sound (33 U.S.C. Sec. 1269), Lake
Champlain (33 U.S.C. Sec. 1270).
\47\ P.L. 106-457. 33 U.S.C. Sec. 1273.
\48\ P.L. 114-322. 33 U.S.C. Sec. 1275. In 2016, Congress
authorized the Columbia River Basin program in the Water Infrastructure
Improvements for the Nation Act (P.L. 114-322), but did not provide an
authorization of appropriations for the program. In 2018, Congress
amended the CWA to add an authorization of appropriations for the
program in America's Water Infrastructure Act (P.L. 115-270).
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Several other geographic programs are not individually authorized
in the CWA, but Congress has provided funding for each program in EPA
appropriations (e.g., Gulf of Mexico, Puget Sound, South Florida, San
Francisco Bay, and Southern New England estuaries). Within its
congressional budget justifications, EPA cites broad CWA authority for
the administration of these other programs. Some of the geographic
programs receive funds through both the CWA Geographic Programs
appropriations and through NEP appropriations (e.g., Long Island Sound,
Puget Sound, and San Francisco Bay).
Under the CWA Geographic Programs, activities include efforts to
address water quality impairments, clean up beaches, decrease coastal
erosion, protect and improve aquatic habitat, support fisheries, and
protect public water supplies. Appropriations provided for the CWA
Geographic Programs leverage additional resources including funding and
technical assistance made available from other federal and state
programs, local stakeholder groups, individuals, and others.
Successes and Challenges
The past 50 years of CWA implementation have yielded improvements
in water quality in certain aspects. CWA funding programs and CWA
permitting programs have done much to reduce direct discharges of
untreated domestic sewage and industrial waste to the nation's
waterways. States continue to make progress in their efforts to reduce
stormwater discharges and to address nonpoint sources of pollution
through best management practices and other activities. Implementation
of place-based programs, such as the National Estuary Program and CWA
Geographic Programs, have also bolstered coordination among a range of
stakeholders, leveraged resources, and led to comprehensive plans to
achieve water quality and restoration goals.
However, challenges remain as population growth and development and
climate-related changes (e.g., increased frequency and intensity of
storms) limit the progress made in addressing remaining water quality
issues, including those caused by nonpoint sources of pollution. In
addition, although Congress has provided and continues to provide funds
for wastewater and stormwater infrastructure, funding needs persist as
states and localities address aging systems and needs for increased
capacity and resilience to address population growth and climate-
related impacts.\49\ These and other aspects of CWA implementation will
continue to present Congress, EPA, states, and other stakeholders with
hurdles in their efforts to achieve the ambitious goals of the 1972
act.
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\49\ For example, EPA published its most recent needs survey in
2016, documenting infrastructure needs from 2012. In this survey, EPA
estimated that the capital cost of wastewater infrastructure needed to
meet statutory water quality and public health requirements and
objectives exceeds $270 billion over a 20-year period. EPA, Clean
Watersheds Needs Survey (CWNS) Report to Congress--2012, 2016, https://
www.epa.gov/cwns.
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This concludes my prepared remarks. Thank you for the opportunity
to testify, and I look forward to answering any questions you may have.
If additional research and analysis related to this issue would be
helpful, my CRS colleagues and I stand ready to assist the
subcommittee.
Mrs. Napolitano. Thank you, Ms. Gatz.
Thank you to all our witnesses. We will now move to Member
questions, and each Member will be recognized for 5 minutes.
And I begin with Chairman DeFazio for questions.
Mr. DeFazio, you are recognized.
Mr. DeFazio. Thank you, Madam Chair. And thanks to all the
witnesses for their testimony.
I think there was unanimity among the witnesses that the
Clean Water Act is very important, wastewater infrastructure is
very important, and those are great points.
But I do want to just hark back to the threats. And the
threats come because of litigation over the Trump ``dirty water
rule,'' and a conflicted Supreme Court decision from many years
ago, two different decisions.
Now my question for Mr. Ross, 3 years ago you testified
before this subcommittee, and you were promoting what we have
come to call the Trump ``dirty water rule.'' And at the time, I
asked you how many streams and wetlands would lose protection
under that rule. And you said, again and again and again and
again and again, we don't know.
And I thought, well, do you really want to put forward a
rule when you don't know what the impact is going to be on
massive tributaries and the scope of the rule and its impact on
pollution? But the administration pressed ahead.
And when you testified, there were leaked documents from
the EPA saying between 18 and 71 percent would be impaired, and
roughly 50 percent of all wetlands would be jeopardized,
wetlands being very critical. Now we do have those documents,
and it came out to 70 percent. Seventy percent would have been
at risk under that rule.
Do you have any doubt to the accuracy of these analyses,
Mr. Ross?
Mr. Ross. Thank you, Chairman, for the question.
I do think there are some questions about the accuracy----
Mr. DeFazio [interrupting]. Well, come on. Let's get to the
point. Do you doubt the accuracy? Would it have had a major
impact somewhere around 70 percent would be removed from
jurisdiction?
Mr. Ross. Chair, I----
Mr. DeFazio [interrupting]. Yes or no?
Mr. Ross. I think that data needs to be analyzed
holistically in context. And so, I haven't been there----
Mr. DeFazio [interrupting]. OK. So, you can't answer.
So, despite your outstanding testimony today, which I
thought would have come from either a municipal or someone
representing wastewater people and all the great things you
talked about there, what good does it do us to spend incredible
amounts of money cleaning up the wastewater when some industry,
or agricultural group, has dumped a bunch of crap in there
which is making the water no longer fishable, swimmable
upstream and downstream? That doesn't really help.
I appreciate the little bit of whitewashing. I assume the
firm you work for knows your history or whoever your clients
are knows your history. But you seem like a very different
person here today, and it doesn't seem like you are going
answer anymore honestly than you did 3 years ago.
I do appreciate you saying we should increase funding. I
hope that your Republican colleagues on that side of the aisle
listen. That was the first reauthorization of the SRF since
1987. We proposed a much larger number here in the House, which
was opposed by my Republican colleagues. Luckily, the Senate
was a little bit more enlightened, and we got a decent amount
of money. But as you noted, we need much, much more around the
Nation.
Do any other members of the panel wish to opine upon the
jeopardy proposed by any reinstatement of the Trump ``dirty
water rule'' or a successful defense of its implications?
Anyone want to testify to that? Anyone other than Mr. Ross?
[No response.]
OK. That is a pretty quiet panel.
All right. No one? OK.
How about the importance of investment wastewater? Anybody
want to comment than? I've got 36 seconds left.
Go ahead, Mr. Witt.
Mr. Witt. Thank you, Chairman.
I would love to comment on that. It is absolutely critical
that we continue investment in wastewater. And you have to look
no further than things that happened in places like Jackson,
Mississippi, to find out what happens when we don't invest in
wastewater and in drinking water, as well.
In the industry, all of the NACWA members and people who
aren't NACWA members pride ourselves on the jobs we do. You
don't really hear about problems with wastewater plants,
because they don't happen very often. But when they do, it can
be catastrophic. And without the proper investment in clean
water industry, it will start happening again.
I can tell you that at my place of employment, we have
lines. As I said, we have been treating, providing public
wastewater services for almost a century now. We have sewer
lines that are 100 years old. They were built by hand, by
immigrants coming over from Europe, straight from Ellis Island,
put to work and beautiful brickwork, beautiful woodwork, all
these beautiful facilities. But they are not going to last
forever. They have outlived their usefulness.
And that is the same all up and down the east coast. As you
move further west in newer communities, you have newer sewer
lines. But in particular where you have older sewer lines, in
urban centers, and especially where disadvantaged people and
people who do suffer the adverse impacts of environmental
justice, you have got a lot of old infrastructure there. And
these people are at risk. They are at risk. There is no other
way to put it.
Mr. DeFazio. I thank the gentleman.
I thank the chair for her indulgence.
That was a very comprehensive answer. We are much at risk.
Even when I was a county commissioner, we built the system with
85 percent Federal assistance. Still working great, but it is
now 50 years old. That is a new one.
Thank you.
Mrs. Napolitano. Thank you, Mr. DeFazio.
Mr. Rouzer, you are recognized.
Mr. Rouzer. Well, thank you, Madam Chair.
Mr. Ross, I was interested in your answer. And I know you
didn't quite get an opportunity to fully, fully explain your
perspective there. Do you want to go back to the chairman's
question and elaborate just a little bit?
And my own comment, too, I think it is important that we
have balance. You could shut down all industry, you could shut
down all activity, and that would probably help clean up the
water, too. But that is not obviously realistic, or even
appropriate. You have got to have balance with this.
So, would you like to comment further, Mr. Ross?
Mr. Ross. Yes, sure, thank you.
I recognize that there is passion, obviously passion, maybe
the most divisive issue in the Clean Water Act.
But the number one point I want to make on that data issue
is I think the Federal Government has failed for decades. We
really don't have a resource map of our regulated waters. And
I, like the Obama administration before me, we were sort of
operating in the dark. And so, we started a mapping effort
collaboratively with the Corps of Engineers, the Department of
the Interior, EPA, and other Federal agencies to try to build
that data.
With that said, it is a 10-year effort to build that data.
And you do have to provide some clarity as to the scope of the
Clean Water Act. And so, the Obama administration, the Trump
administration, and now the Biden administration are trying to
provide that clarity. That is a really, really difficult issue.
Mr. Rouzer. Speaking of clarity, it appears the EPA is
rushing to finish their rule before the decision in the Sackett
case. Based on your experience, do you think it is wise for an
agency to be undertaking a rule about its own scope of
authority when the Supreme Court is considering that very same
issue? Shouldn't the EPA wait for the Supreme Court's ruling?
Mr. Ross. Well, if I was there, let me answer it this way:
I may make a different decision. But I do understand the
drivers. So, I get the reasons why they are doing it. But I
think the chance of providing--the Supreme Court finally
providing some clarity is a good thing. And it would be nice
have the Federal regulatory process match whatever decisions
the Supreme Court may make.
Mr. Rouzer. So, the administration claims in its press
statements that its part 1 WOTUS rule is just a return to the
pre-2015 standard. Is this actually the case based on what you
know?
Mr. Ross. Well, I think we will have to see how they
finalize the rule. The rule is now sitting over in OMB. I think
some folks have made some comments about that.
I think it drifts a bit towards the 2015 rule. At least it
did in the proposal. And so, we will have to see how it comes
out in final. But I think it was more than a return to the 1986
framework.
Mr. Rouzer. Mr. Witt, I want to move to you real quickly.
PFAS is a big issue for us in North Carolina and elsewhere
around the country. Can you discuss the impact that regulations
might have on clean water agencies and other utilities as it
relates to PFAS if those regulations are not given appropriate
thought and balance and consideration?
Mr. Witt. Thank you, Ranking Member, for the question.
Yes, this is an extremely important issue for all clean
water agencies. And we support, NACWA supports the further and
ongoing efforts under the Clean Water Act to delineate and
understand exactly the scope of the PFAS problem.
We have a real problem, and I personally have described
this to my colleagues as having the potential to be
catastrophic, cataclysmic, whatever word you want to use there,
is the expansion of PFAS to be included as a hazardous
substance under CERCLA, under the Superfund law, and the
potential impact that could have on clean water agencies if
there is not a congressional exemption for clean water agencies
with regard to that definition.
Clean water agencies don't use PFAS. We don't make PFAS. We
don't benefit from PFAS. We don't profit from PFAS at all. But
if there is not an exclusion under CERCLA for wastewater
entities, we are going to be held liable for it because we get
it through the sewers. We are a passive recipient of PFAS. We
can't stop it from coming in the sewer system, but now we might
be held liable for discharging it when it goes through our
treatment process. And nobody's treatment process at this point
is geared towards removing PFAS.
The reason that we have the PFAS problem is because they
are so biopersistent. It is very difficult to treat them, and
there isn't even an agreed-upon treatment method yet. So, until
that is developed, holding clean water agencies responsible for
discharging PFAS is holding our ratepayers responsible for
discharging PFAS, people who did not make them, people who do
not benefit from them monetarily. But that is who will be asked
to pay, in part, for those issues.
And that is why it is such an important issue to us to have
the exemption under the law, if PFAS are included as hazardous
substances.
Mr. Rouzer. Thank you.
I yield back.
Mrs. Napolitano. Thank you, Mr. Rouzer.
I will now recognize myself for 5 minutes.
And I will start with Chairman Esquivel. It is great to see
you again.
Much of California residents and farms receive water that
starts as ephemeral or intermittent streams. If they are
polluted, Californians will bear the cost of cleaning the water
before it is drinkable, swimmable, and usable.
Can you discuss how important it is to protect them?
Mr. Esquivel. Yes. I really appreciate the question.
And to maybe touch upon some of the discussion that we have
been having around, and I appreciate the ranking member's word,
``balance,'' for the protection of our beneficial uses. I will
note many of California's waters originate within the State,
flow within the State, don't cross interstate borders. And so,
we use Porter-Cologne, our own authorities to regulate them and
including expanding our definition for wetlands.
So, as this expanding and contracting jurisdictional
discussion on the Clean Water Act happens, California can
protect its waters and protect itself. But this has the most
impact on our interstate waters, the Colorado River, here,
front and center of many of our thoughts as we address the
quantity issues on that river. But so, too, are important are
the quality issues that, especially in a drying and arid
climate, become so fundamental in the arid West to protect, to
ensure that we are here as the basis or our economy is here
truly protecting that and the polluters amongst that system are
paying.
And so, there, ensuring that ephemeral streams which,
again, especially in the West--I had the great fortune of being
in DC for about a decade. So, I know the East and its water
management can seem very different than what we have to manage
in the West.
But our waterways are incredibly different. We have
ephemeral streams. They don't free flow during the entire year.
And they deserve protection, because when water does run down
them, when we have storms, when we have--and especially with
increasing and warming climate--floods, they can overwhelm and
really impact our ability to continue to use our water as well.
And so, it is incredibly important that this jurisdictional
issue be addressed and, importantly, we find some common ground
here on how best we really lend ourselves to the science, the
interconnectivity, the biological, as we have said, and
chemical integrity of our waterways.
Mrs. Napolitano. Thank you, sir. I yield to Mr. DeFazio, if
you would like to have the time? Mr. DeFazio?
And then I will, again, Mr. Esquivel, many sanitation
agencies in our State are working towards water reuse and
recycling to address our drought conditions. What are the
issues the State board is focusing on to support water
recycling?
Mr. Esquivel. Thank you, Congresswoman, Chair. Here, so
proudly is the fact that the State Water Resources Control
Board has actually been able to invest $1.8 billion, along with
importantly our local leaders and partners in water recycling
projects in the State of California. That means in these next
years, we will have an additional 124,000-acre-feet of water,
enough to support nearly 600,000 homes here with clean water.
And with a warming climate, we know that we are going to have
to continue to invest in these 21st-century systems, water
recycling, and maximizing our use of our water resources,
particularly, in the arid West. And there, it is an incredible
thing that we are actually going to be, next year, adopting
direct potable-reuse regulations, which will usher in a whole
new generation of projects, not unlike water recycling did here
in the early 1970S in California. We looked to be the leaders
in ensuring that we are expanding our water supply portfolio,
even as we adapt to what we know will be a hotter and arid
future.
Mrs. Napolitano. Thank you. Under the last administration,
efforts were made for major rollback of protections under
section 401, and the State board adopted its own wetlands
policy in response to ensure continued compliance. Can you
discuss the importance of section 401? Now, we've just got a
few minutes.
Mr. Esquivel. Yes, I will note that California, as I said
during my remarks, we are really reconciling the system that we
have inherited. And there have been a lot of decisions that
have been made that have actually worked against having access
to clean water and ensuring it for our communities, no more so
than the paving over and development of 95 percent of the
State's wetlands. So, that last 5 percent that we have left,
the need to actually grow it, is so important and is why the
definition for wetlands that are incorporating those
protections in our policies was critical to responding to,
again, these different jurisdictional issues when it comes to
ephemeral streams or definitions of things, like the wetlands
and the scope of 401 regulations.
And again, going to this theme of balance, here we have to
remember that we are reconciling our systems. And on balance,
we have to be protecting our communities and ensuring clean
water. And that's the basis for our modern economies.
Mrs. Napolitano. Thank you very much, sir. I will now move
to Mr. Garret Graves. You are recognized, sir.
Mr. Graves of Louisiana. Thank you, Madam Chair. Madam
Chair, I want to join the chorus of folks, Ranking Member
Rouzer, yourself, as well as Chairman DeFazio in celebrating
some of the successes of the Clean Water Act. There is no
question that the law has resulted in benefits to many
communities and our environment across the United States in
many cases.
I also want to highlight, because I think we need to stay
focused on building on successes and addressing deficiencies.
Madam Chair, in my home State of Louisiana, we have lost
2,000 square miles of our coast--2,000 square miles of our
coast--which are jurisdictional wetlands. They are
jurisdictional wetlands. The primary cause of the loss is the
very agency that is in charge of regulating wetlands. That
would be the Corps of Engineers under the delegated authority.
So, there is something that we need to be, kind of, pausing
on and thinking about. How has this law that is supposed to be
protecting our wetlands resulted in the agency in charge of
regulating them the greatest loss of wetlands in the United
States history? And this isn't just historic, this is ongoing
because of how they manage the Mississippi River system and our
water resources.
No question, as Mr. Rouzer and our chairman have noted, no
question there have been successes we need to celebrate. Gaping
holes and failures that need to be addressed.
There is another one. I have heard folks talk about section
401. Section 401 certification certainly has a place in that,
in that States need to have a role in looking at water
resources, looking at certification, and ensuring that we are
not carrying out actions at the Federal level that are
adversely affecting our environment and adversely affecting
States. However, we have got to look at the consequences of
that and ensure that those decisions are confined to the
intents of section 401.
We have watched, the States have come in, misapplied
section 401 in ways to achieve their objectives related to
climate change goals. And what I mean by that is blocking
interstate gas pipelines. Ironically, their very efforts to use
section 401 to achieve their climate change goals have actually
resulted in greater emissions, resulted in consumers paying
more for energy prices by blocking, for example, natural gas
pipelines up in the Northeast only to watch Vladimir Putin go
on Twitter and troll the United States because we chose them,
the only option, to bring in liquefied natural gas from Russia.
It resulted in us having to burn home heating oil, which
has greater emissions. These are boneheaded decisions that are
clearly outside of the scope of the Clean Water Act.
Now, I heard Chairman DeFazio talking about the Clean Water
Rule and the ``dirty water rule,'' which I am not sure what
that is. I haven't seen that one yet.
But I am curious, Mr. Ross, you have a very active Supreme
Court case right now, Sackett v. EPA, that is before the
Supreme Court. Clearly, the court, as it has multiple times, is
getting ready to step in and effectively redefine, or at least
put some parameters on the Clean Water Act, on WOTUS.
Based on your experience having served in EPA, why would an
agency go out and do a final rule when they are getting ready
to have a parameter change? And does that make sense? Or should
we wait for the Sackett decision to then inform a final rule.
Mr. Ross?
Mr. Ross. As I said earlier, I may have chosen to make a
different decision and let the Supreme Court act. We don't know
exactly--it is hard to predict what the Supreme Court is going
to do. Is it going to provide the final clarity and overcome
the mistakes of its earlier decisions in really disrupting the
Clean Water Act jurisdiction and creating this confusion? Or is
it going to rule more narrowly?
And so, to the extent they are moving forward, without the
Supreme Court acting, I get it. Again, I might not have made
that decision. And I do think it is more likely than not that
we will get some clarity from the Supreme Court on some pretty
important issues. And it will be nice to then integrate that
into whatever Federal rule comes out after that.
Mr. Graves of Louisiana. Thank you, Mr. Ross. Quick second
question for you. In looking at the administration's regulatory
agenda, how they are carrying out regulations, yet, looking at
how they are trying to similarly achieve infrastructure project
completion or execution, things like implementing water
projects across the United States. They are actually being
hampered or impeded by the regulatory agenda. And I think that
the Clean Water Act is an example of that in the need to
modernize the regulatory process. If you can just quickly
comment on the proposed waters, the U.S. regulations, and how
it is going to impact much-needed water infrastructure
projects.
Mr. Ross. Well, I think there is a tension between the need
to modernize our water infrastructure, our renewable energy
infrastructure, whatever it is. The Federal permitting process
is long, difficult, and expensive. And without clarity into the
scope of jurisdiction, folks are having to grapple with how to
go through the permitting process. And so, I think there is
tension there, and tension that needs to be resolved.
Mr. Graves of Louisiana. Thank you. I yield back.
Mrs. Napolitano. Thank you very much, Mr. Graves.
Mr. Huffman, you are recognized.
Mr. Huffman. Thank you, Madam Chair and Ranking Member, for
holding this important hearing to recognize the 50th
anniversary of the Clean Water Act. This very important act
serves as one of our Nation's foundational environmental laws.
It is an important tool allowing us to better protect our
communities and our environment. But sadly, 50 years later, we
still have to defend the communities' right to clean water and
defend the Clean Water Act itself from attempts to weaken it.
Chairman DeFazio did a great job talking about how the
Trump administration in 2020 tried to implement their ``dirty
water rule'' to significantly limit the type of waterways that
would even qualify for protection as well as the rights of
States and Tribes under section 401 of the Clean Water Act.
This, of course, is where they have the authority to review,
certify, and potentially block harmful projects within their
jurisdiction.
Now, thankfully, the Biden administration's proposed
section 401 rule will further safeguard these important
protections. But despite all of this, we may potentially see
before us so-called permitting reform language from a Senate
backroom deal. And what we know about this comes from a leaked
American Petroleum Institute watermarked version of text that
would weaken section 401 protections to significantly narrow
the scope of projects that States and Tribes can review as well
as to change the timeframe for them to conduct their
environmental reviews.
And so, I would have like to begin with a question to Ms.
Tsosie. In your testimony, ma'am, you talked about how several
Tribes have successfully used section 401 programs to regulate
water quality. And you went on to say that if that section is
weakened, many of those Tribes will lose one of the strongest
tools they have to work with States and to weigh in on
potentially damaging projects and ensure their resources are
protected. Can you talk a little more about how a narrower
scope, or a shorter timeframe, will impact Tribes in their
ability to protect their water quality resources?
Ms. Tsosie. Thank you, Representative Huffman. Section 401
is a strong tool for Tribal governments to review water quality
and the impacts that projects will have on Tribal waters, both
on and off reservation. Narrowing the scope of that review in
any way, such as narrowing the project review, narrowing the
impacts that might be evaluated under that review can have
significant impacts. These projects are not proposed in a
vacuum. They often have secondary effects. Or they will have
effects that if you narrow the scope can't be seen. And so, it
is important that we look at the entire project's impacts as a
whole as part of the section 401 process.
Further, shortening the timeline, or placing a timeline at
all, really is an arbitrary move and can complicate the review
of these projects, leading either to a denial where a project
might otherwise have been approved, or an approval that falls
short of protecting water quality standards. It also places an
unreasonable burden on Tribes to do that review within that
timeline. And so, that process has nothing to do with
protecting the water quality, if we are placing that timeline
there. Thank you.
Mr. Huffman. Thank you. Chair Esquivel, same question to
you, from the perspective of the State. What does it mean if
the State only has 6 months to review a project instead of a
year, or if a State is limited to only reviewing these quote,
unquote, ``water quality requirements of State law''? These are
the type of restrictions proposed in the outline of this ideal
that we have seen. Why is that a problem from the perspective
of California water quality protection?
Mr. Esquivel. Thank you. I appreciate the question. And I
think we have to remember that we have here an inherited
history of really bad decisionmaking. And while I appreciate
and acknowledge that there is a tension around permitting,
around getting the infrastructure investments that we know we
need into our communities, and in doing so, at the pace that
the urgency that climate change is really putting on us is
important. But we can't afford ourselves here to continue to
make bad decisions quickly. We have to be able to balance here,
importantly, how we make the right considerations, how we
evaluate projects in a way that, yes, we should concentrate on
how we do that expeditiously, but also, how we do that well,
and not put arbitrary timelines onto what are very difficult,
and sometimes significant projects that need the time and
consideration but can also deal with improvements around the
way we look at data, the way we evaluate, we in common seeing
what we need to best match up against our considerations for
these investments.
Mr. Huffman. All right. Thank you. I yield back.
Mrs. Napolitano. Thank you, Mr. Huffman. Mr. LaMalfa, are
you there? Mr. LaMalfa?
[No response.]
Then I will proceed to the next Member.
Mr. Malinowski, you are on, please. Mr. Malinowski.
Mr. Malinowski. Hi, thank you so much, Madam Chair. Thank
you to all our witnesses. And we are marking an anniversary
here of a law that I think has done tremendous good for the
American people. And as we look forward, I think it is
important for us to look backward on what it has done.
Mr. Witt, you and I are both from New Jersey. I think we
can talk forever about the changes that have occurred in our
State over the last 50 years for the better because of the
Clean Water Act. And I think it is worth reviewing some of
those. I think you mentioned in your testimony, that prior to
the 1970s, the most common form of industrial, commercial, and
residential wastewater treatment, quote, unquote, ``was simply
to discharge it with little to no actual processing into the
nearest stream, river, lake, or ocean.''
And we certainly experienced that in New Jersey in the
early 1900s. For example, chemical and plastics companies like
the American Cyanamid Company dumped hundreds of thousands of
pounds of chemical waste into the Raritan River that flows
through my district. At the height of World War II, industrial
waste was regularly dumped into our Delaware River. It became
basically an open sewer. It was said that the river's water was
so dirty that it would turn the paint of ships running through
the river brown. And today, there are kids and families
swimming and tubing in that river in my district every year.
And along the Passaic, which, of course, you know very
well, where industry boomed in the 19th century into the 20th,
more than 100 industrial facilities have been identified as
potentially responsible for discharging contaminants into the
river according to the EPA.
Since then, since 1972, New Jersey, like many other States,
has taken, I think, extraordinary steps to clean up our waters,
to keep them clean. We are modernizing our aging water
infrastructure, we are punishing polluters, we are defending
the law at every opportunity, including during the previous
administration when the law was on the chopping block.
So, I wanted to ask if you might be willing to reflect a
little bit on that progress that we have made, and perhaps
share some thoughts about where you see us going with the Clean
Water Act for the next 50 years to deal with the very real
challenges we still face in New Jersey.
Mr. Witt. Thank you for the question, Congressman. And I
happen to live right across the street from the Congressman's
district, and live near the American Cyanamid Project Superfund
Site that the Congressman referred to. I live in Bound Brook,
New Jersey, which is right where it is, it is right along the
banks of the Raritan River. And, certainly, we have made a
tremendous amount of impact in those areas and along the
Passaic River.
I would, however, like to tie this back into the work that
we still need to do. And as the committee, I am sure, is aware,
Superfund law was created, in large part, because of New
Jersey. New Jersey has more Superfund sites than anywhere in
the United States.
And so, looking at the Clean Water Act and where we can go
in the future is again the importance of continuing to fund
infrastructure, not only New Jersey, but elsewhere, all around
the country, in order to stop the continued pollution of these
waterways. Because they are already at the point where it is
too much. And we need to stop adding to the problem and start
resolving the problem.
But again, getting back to the ranking member's point about
developments with CERCLA, and certainly with regard to
Congressman Malinowski's statement about the Passaic River,
yes, that is exactly where Agent Orange was made for the
Vietnam War, the defoliant that we used in the Vietnam War. And
dioxin is one of the byproducts of making Agent Orange. It is
basically the most toxic substance that human beings know how
to make that is not radioactive. And the company that is, by
and large, responsible for making most of that dioxin just
dumped it into the Passaic River.
We are now involved in the largest Superfund case in U.S.
history along that river. There are some estimates by region 2
of EPA that it could cost as much as $10 billion to $12 billion
to clean up that river. And at this point, 44 public entities--
municipalities in New Jersey--45 public entities, including
PVSC have been drawn into that lawsuit by the other polluters,
because there is no exemption under the law for wastewater
facilities.
So, you have got the situation now, where basically you
have millions of customers who are going to be paying
potentially for the privilege of having their river poisoned
for the last 80 years. And we can't have that. There must be
that exemption. That is where we need to go. We need to
continue the regulation with the Clean Water Act, and account
for new contaminants like PFAS. But we also need to realize
that there is an action going on that needs to be fixed. You
can't keep treating wastewater entities like they are part of
the problem. We are part of the solution. We want to help. We
are the troops on the ground.
Mrs. Napolitano. Mr. Malinowski, you are out of time. Thank
you, Mr. Malinowski.
Ms. Bourdeaux, you are recognized.
Ms. Bourdeaux. Thank you, Chairwoman Napolitano and Ranking
Member Rouzer, for holding today's hearing. As we get ready to
celebrate the 50th anniversary of the Clean Water Act next
month, I appreciate having this forum to highlight the
successes of this landmark piece of legislation as well as
discuss some areas of need for improvement. I am grateful to
all of our witnesses for joining us for this important
conversation.
Before I begin, I want to ask unanimous consent to submit a
letter from American Rivers for the record.
Mrs. Napolitano. So ordered.
[The information follows:]
Statement of American Rivers, Submitted for the Record by
Hon. Carolyn Bourdeaux
Since 1973, American Rivers has protected wild rivers, restored
damaged rivers, and conserved clean water for people and nature. With
headquarters in Washington, D.C. and 355,000 supporters, members, and
volunteers across the country, we are the most trusted and influential
national river conservation organization in the United States.
American Rivers is pleased to submit comments for the record in
support of a strong Clean Water Act (CWA) to meet the nation's emerging
water pollution challenges impacting rivers, streams, lakes, and
wetlands. This bedrock environmental law lays the foundation for
improving water quality by limiting sludge, sewage, and other toxic
waste from entering our rivers. Yet with clean water supplies becoming
scarce and polluted due to climate change, the mounting pressures of
rising population, and sprawling development trends, the law has fallen
short of its intended purpose. If we fail to embrace innovative
solutions to strengthen it, state and federal agencies will struggle to
deliver clean water for rivers, fish, wildlife, and communities.
In our recommendations, we highlight key opportunities to make the
Clean Water Act more effective through improved enforcement measures,
monitoring systems, and technological standards. American Rivers looks
forward to working with the committee to formulate bipartisan solutions
that brings this law into the 21st Century.
History of the Clean Water Act
In the early 1970s, two-thirds of the nation's lakes, rivers, and
coastal waters were unsafe for fishing or swimming, and untreated
sewage and industrial waste was dumped into open water. The widespread
and uncontrolled contamination of public water supplies resulted in
rivers catching on fire, massive loss of aquatic life and the
contamination of whole communities. From bacterial levels in the Hudson
River, New York to massive fish die-offs in Florida, the public had had
enough and demanded action.
In 1972, Congress amended and passed, the Clean Water Act to
establish a foundation for enhanced water quality protection. The law
gave the Environmental Protection Agency the explicit and specific
authority to implement pollution controls such as setting wastewater
standards for industry as well as direct federal investments to improve
our nation's water infrastructure.
The enactment of the law has resulted in the steady improvement of
our rivers and streams benefiting public health and the environment. A
2018 study revealed the Clean Water Act has reduced pollution in U.S.
waterways.\1\ Data shows the number of rivers safe for fishing
increased by 12 percent from 1972-2001.\2\ While this progress is
encouraging, more needs to be done; due to lax enforcement, oversight,
sprawling development and other new sources of pollution. Today, 46
percent of our streams and rivers are in poor condition.\3\
Furthermore, many of these polluted rivers and streams flow through
communities that have traditionally received less investment and
support, like tribal communities, African American neighborhoods, and
other communities of color.
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\1\ Keiser David A., Shapiro Joseph S. ``Consequence of the Clean
Water Act and the Demand for Water Quality'', The Quarterly Journal of
Economics, Volume 134, Issue 1, February 2019, 49-396, https://doi.org/
10.1093/qje/qjy019
\2\ Ibid.
\3\ US Environmental Protection Agency. National Water Quality
Inventory: Report to Congress, 2017
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Our America's Most Endangered Rivers report is one of the longest-
lived annual reports spotlighting river health issues.\4\ The list is
curated based on major proposed actions that the public could help
influence to better protect rivers and understand the scale of the
threats in their backyards. Each year, we find the Clean Water Act is
severely underutilized in many parts of the country--falling short to
protect rivers and vital watersheds that serve as essential public
water supplies.
---------------------------------------------------------------------------
\4\ American Rivers. America's Most Endangered Rivers of 2022
America's Most Endangered Rivers of 2022
1. Colorado River
Threats: Climate crisis, outdated water management
2. Snake River
Threats: Four federal dams
3. Mobile River
Threats: Coal ash contamination
4. Maine's Atlantic Salmon Rivers
Threats: Dams
5. Coosa River
Threats: Agricultural pollution
6. Mississippi River
Threats: Pollution, habitat loss
7. Lower Kern River
Threats: Excessive water withdrawals
8. San Pedro River
Threats: Excessive water pumping; loss of Clean Water Act
protections
9. Los Angeles River
Threats: Development, pollution
10. Tar Creek
Threats: Pollution
How the Clean Water Act Protects Rivers
The Clean Water Act protects rivers and streams through the
establishment of different permitting programs. The first permit system
in the Act is the National Pollutant Discharge Elimination System
(NPDES), which requires permits for any point source such as a
discharge from a chemical plant, factory, or wastewater treatment
facility, entering into ``waters of the United States''. This permit
limits pollutants from contaminating or overloading waterways with
dangerous chemicals that can alter or change the natural environment or
harm public health.
The second permit system is established under Section 404 of the
Clean Water Act and requires permits for the discharge of dredge and
fill materials reserved principally for construction activities in, on,
or around waterbodies. Additionally, Section 401 of the Clean Water Act
requires that any applicant for a Section 404 permit also obtain a
Water Quality Certification from the state in which the activity is
occurring. The purpose of the certification is to confirm that the
discharge of fill materials will be in compliance with the state's
applicable Water Quality Standards.
The Environmental Protection Agency and U.S. Army Corps of
Engineers, respectively, issue these permits, but the Clean Water Act
delegates to the States the authority to make permitting decisions for
activities that discharge pollutants to streams and wetlands within
their borders.
Over the last half century, American Rivers has tackled some of the
nation's greatest threats to water quality by working with state and
federal agencies, wastewater utilities, community leaders, and
scientists. Our network of more than 1.3 million volunteers
participates in our National River Cleanup, a key initiative focused
on achieving national litter reduction goals in our waterways.\5\
Through this program, we have led cleanups across the country, covering
more than 261,000 miles of waterways and removing more than 32.5
million pounds of litter and debris.
---------------------------------------------------------------------------
\5\ American Rivers. National River Cleanups. See: https://
www.americanrivers.org/make-an-impact/national-river-cleanup/
---------------------------------------------------------------------------
We believe a strong Clean Water Act allows us to continue working
with state and federal agencies, local partners, and the public to
achieve even greater victories for clean water and healthy rivers.
Success Stories from Across the Country
The Clean Water Act today serves as a critical tool to preserve,
enhance, and restore our nation's waterways. Below are success stories
that exemplify the importance of the Clean Water Act when properly
enforced:
In Pascua Yaqui Tribe v. U.S. Environmental Protection
Agency, the U.S. District Court for the District of Arizona invalidated
the ``Navigable Waters Protection Rule,'' a harmful rule, despite its
name, which left many wetlands, lakes, and streams without critical
clean water protections.
Dominion, and its partner Duke Energy, canceled the
proposed Atlantic Coast Pipeline due to popular local demand and
community response. People from the region were able to utilize citizen
input and response tools outlined in the Clean Water Act to make their
voices heard. This a proposed 600-mile pipeline threatened water
quality and vulnerable communities throughout Virginia and the
Chesapeake Bay.
The City of Burlington in North Carolina agreed to
investigate the sources of per- and polyfluoroalkyl (PFAS) chemicals
and 1,4-dioxane in the city's wastewater discharges.
The Environmental Protection Agency charged the Montana
Department of Environmental Quality to revise its narrative water
quality standards to protect the state's waterways.
The Wisconsin Supreme Court ruled that a 2011 law gives a
state agency authority to enforce water quality standards through the
use of CWA permit conditions for large agricultural operations known as
concentrated animal feeding operations or ``CAFOs.''
The New Jersey Department of Environment Protection
upgraded protections for 600 miles of streams, setting stricter limits
on pollution, and development. The upgrade means cleaner, safer
recreational opportunities, and safeguarding rivers, streams and
drinking water sources from pollution.
The New Hampshire Department of Environmental Services
was able to delist the Black Brook River from their CWA required
impaired waters list. The removal of a century-old dam eliminated a
source of water pollution and improved the health of the river.
The California Central Valley Regional Water Quality
Board worked with farmers on a grasslands bypass project to reduce
Selenium in the San Joaquin Basin.
Georgia's Environmental Protection Division removed a
six-mile segment of Broxton Creek from the list of impaired waters.
Farmers helped install best management practices on pasturelands to
remove fecal coliform originating from animal agriculture and failing
septic tanks. This led to improved water quality and fishing.
The Clean Water Act is Working but Falling Short to Protect Rivers
For nearly half a century, the Clean Water Act has been successful
at reducing pollution entering our rivers, streams, and lakes from
point sources or single identifiable sources of pollution like
wastewater treatment plants and factories. But rivers across America
continue to be dumping grounds for human, industrial, and agricultural
waste. And most importantly the places where pollution continues to be
a problem are in communities where the Clean Water Act has not been
properly enforced--communities where there has been a lack of
investment in clean water infrastructure and other public amenities.
The law falls short of serving its intended purpose in these cases
because it is not being used or enforced.
Emerging contaminants and nonpoint source pollution also pose
significant problems that are not fully covered by the Clean Water Act.
These growing water quality threats need to be addressed if we, as a
nation, are to have clean water for the future.
The Clean Water Act has driven critical improvements in U.S. water
quality since it was passed. But as we move into the future, growing
and evolving threats to clean water require the Clean Water Act to be
strengthened. The next 50 years of the Clean Water Act must include
effectively addressing the impacts of climate change, advancing
environmental injustices, tackling CAFOs, nonpoint source pollution,
and emerging water pollution problems.
Access to clean water is a necessity, not a commodity. To create a
swimmable, fishable, and drinkable clean water future for all, we urge
members Congress to support and strengthen the Clean Water Act.
Recommendations for Strengthening the Clean Water Act
The Clean Water Act protects millions of acres of wetlands and
millions of miles of streams that feed into larger rivers, lakes, and
other waterbodies across the United States. America's network of rivers
stretches more than 12,000 miles--making it an essential economic
engine for many cities and towns. But in 2020, the Trump administration
introduced the Navigable Waters Protection Rule, aka the Dirty Water
Rule, which severely limited the ability of the Clean Water Act to
prevent pollution and protect critical wetlands, rivers, lakes, and
other waters. The rule gave industry a license to pollute our waters,
jeopardizing the health of our families and communities.
To reverse the damage done by the Dirty Water Rule, the Biden-
Harris administration has released a new proposed rule that would
reinstate longstanding guidance and protections. We hope that rule will
be finalized soon. In October, the Supreme Court will hear arguments in
a case called Sackett v. EPA, which will consider which waters should
and should not be covered under the law. This case has the potential to
greatly undermine the goals of the Clean Water Act and the ability of
the federal government to protect our waterways. We need to ensure that
the public and members of Congress understand what is at stake in this
case: our fundamental right to clean water and healthy rivers.
The Clean Water Act was passed with a goal to ``restore and
maintain the chemical, physical and biological integrity of the
Nation's waters.'' While the Clean Water Act, and the EPA's efforts to
enforce it have made gains in improving our nation's waters since the
passage of the act, there is still much work to do. We recommend the
following:
1. Support a comprehensive definition of the ``Waters of the
United States'' that includes small streams and wetlands as Congress
intended when the law was amended and passed in 1972.
2. Support a scientifically robust review process under Section
401 to ensure states and tribes have the specific authority to
condition or deny water quality certifications for infrastructure
projects.
3. Direct EPA to update its technology-based limits for industry
water pollution control systems as frequently and consistently as
possible to protect public health.
4. Strengthen the Clean Water Act by closing its loophole for
agricultural runoff and other ``nonpoint'' sources of pollution, which
are by far the largest sources of impairments in waterways across the
U.S.
5. Consider more consistent, universal guidelines for waterway
impairment designations for all 50 states, and for gauging unhealthy
levels of key pollutants like nitrogen.
6. Make it easier to effectively enforce key provisions and
requirements of the Clean Water Act, including the cleanup plans--
called ``Total Maximum Daily Loads''.
7. Boost funding for the EPA and state environmental agency staff
required to measure water quality, and to develop and implement the
cleanup plans needed to bring impaired waterways back to life.
8. Require EPA to produce and publish an updated National Water
Quality Assessment report, which they are required to send to Congress
biennially under section 305(b) of the Clean Water Act. Congress should
also require the EPA to update their data requirements to include
improved information on stormwater pollution.
Our organization is fully committed to working with you on these
timely federal water issues and appreciate your strong leadership.
Thank you for your consideration.
Attachment
``America's Most Endangered Rivers 2022''
The 23-page report is retained in committee files and is available
online at https://www.americanrivers.org/wp-content/uploads/2022/04/
MER2022_Report_
Final_04062022.pdf.
Ms. Bourdeaux. Thank you, Chairwoman. My district is home
to a number of organizations that are on the cutting edge of
water technology, including The Water Tower and the F. Wayne
Hill Water Resources Center. The Water Tower is a nonprofit
organization committed to creating an ecosystem of water
innovation, which brings together public and private sectors,
the water industry, as well as academic and policy experts to
tackle challenges the water industry faces. The work of these
organizations and other public, private, and nonprofit
institutions across this country would not be possible if it
were not for the Clean Water Act.
So, my first question is for Mr. Esquivel. And in your
testimony, you mentioned the problem that California is having
with harmful algal blooms, which I know is a concern for many
members of this committee. We have similar concerns around Lake
Lanier, which is in my district and provides 70 percent of the
drinking water for the Atlanta metro area. I am pleased that a
study on this issue was included in the House-passed version of
WRDA. I was wondering if you could expand on the impact HABs
have and the process to mitigate these issues.
Mr. Esquivel. Thank you so much, Congresswoman. I really
appreciate the question. Recently, the San Francisco Bay
suffered a red tide, a harmful algal bloom, not to human
health, but certainly to fish, where we saw mass mortalities
because of nutrient inputs into our waterways, into our water
bodies. Those inputs come from wastewater treatment plants,
that although are treating now the secondary standards, are
effluent, and in many cases, in some cases increasingly
tertiary, meaning the higher level of removal of nutrients and
other pollutants.
We are still really challenged by harmful algal blooms. And
with a warming climate, the heat is making these inputs all the
more challenging for us. We are actually setting drinking water
standards currently, notification levels for some of the toxins
in harmful algal blooms for our drinking water systems as a
response.
But we also have to get a control on the inputs themselves.
As has been noted here in our discussion, nonpoint source
pollution and our partners in agriculture and other industries,
stormwater as well in cities, are the sources. And they are so
much cheaper to clean up at the source than it is to have to
then at the back end here like so many of our challenges invest
and have fall upon our ratepayers the affordability issues.
There, the State is fortunate in that we have Porter-
Cologne, which allows us to actually regulate nitrate
discharges in agriculture. It has been a slow, but important
relationship and process here at the State these last decades
to really begin to develop the science that helps us understand
what is an acceptable level of nitrate application for our
partners in agriculture.
How do we ensure that we aren't here harming our ability to
grow food and fiber, but, instead, improve our watersheds? And
so, this nexus between nutrient inputs and harmful algal blooms
is going to become all the more important, and so too are these
solutions that we have amongst us to measure, to manage, and to
work with our partners across in agriculture, to address these
increasingly challenging issues.
Ms. Bourdeaux. Thank you. And I just want to put a point on
that, that we are seeing algal blooms in the drinking water of
the Atlanta metro area and really do not yet have our arms
around what is causing it, and how to prevent it, and what a
large strategy needs to be. And so, I think, emphasizing that
as we go forward is going to be very, very important.
Mr. Witt, I appreciate your testimony focused on water
utility success stories. Gwinnett County's wastewater treatment
facility, the F. Wayne Hill Water Resources Center, is an
award-winning advanced wastewater treatment facility. It cleans
and returns to the environment some of the highest quality
wastewater in the United States. I see I am running out of
time. But I just wanted to talk with you briefly. What is
currently the biggest hurdle you see in the creation of clean
water infrastructure?
Mr. Witt. It is funding, without a doubt. Treating
wastewater is expensive. It is very energy-intensive. It is
very resource-intensive. And as one of the other witnesses
brought up today, we are at the point now where we are losing
our best people to--I believe as Mr. Ross said--well-deserved
retirements. But the brain drain is incredible. And if we don't
have funding for educational programs to start training people
for these jobs--again, 1 out of 300 Americans are employed in
the clean water sector, well-paying jobs, local jobs--getting
the training for that, getting the money to build the
infrastructure, getting the money to train the people to run
that infrastructure are the two biggest hurdles.
Ms. Bourdeaux. Thank you so much. I yield back.
Mrs. Napolitano. Thank you very much, Ms. Bourdeaux.
And, next, we have Ms. Johnson. Ms. Johnson, you are
recognized.
Ms. Johnson of Texas. Thank you very much. And I would like
to offer my opening remarks for the record, so I can go right
to the questions.
[Ms. Johnson of Texas did not submit a prepared statement
for the record.]
Ms. Johnson of Texas. Mr. Esquivel, as we have seen in
Flint, Michigan, and Jackson, Mississippi, poor and minority
communities are hardest hit by a lack of investment in water
infrastructure. And I am pleased your organization made it a
priority to address this situation with the development of the
racial equity plan. Can you go more into detail on why this was
necessary and how successful it has been so far?
Mr. Esquivel. Thank you so much, Congresswoman Johnson.
When we have looked at the challenges that we face here at the
50th anniversary of the Clean Water Act, the inequities that
still exist are so very linked to racial inequity. When we look
at access to clean water and air means that it is really
important that we as governments have a discussion around how
we ensure that our programs are touching all of us, are
ensuring that the benefit of access to clean water, both
drinking water and sanitation, are a common benefit.
What we say in California, a human right to water and
sanitation is pivotal and is actually part of our water code.
So, having a discussion with our communities to understand what
are the barriers to access, how we as government institutions
ensure that there is equity in access amongst our communities
is so critical. And especially because, unfortunately, we are
inheritors of a history of explicit lack of extension of
municipal services to so many of our communities based on race.
And so, it is incumbent upon us here in this moment to best
understand the context of those challenges. As difficult as it
is, especially as governments, to talk about race in a way that
does credit to the complexity of this history that we are
inheritors of. And it is not lost on me, again, that 50 years
ago, these were fundamental discussions that we were having as
a nation: access to clean water, access to clean air, the
livability of our communities, and how racial equity was
something that we were going to be able to achieve. And we have
made strides, certainly, but there is still a long way to go.
Ms. Johnson of Texas. Well, thank you very much.
Ms. Gatz, what other tools can we give to the States and
municipalities to help address the clean drinking water? I know
that someone said money, but are there other tools?
Ms. Gatz. Yes, there are options available under the Clean
Water Act to address communities. One of the things I think
that is helpful is the way that permitting is set up under the
Clean Water Act. One of the tools that is available, the
administrator or the delegated State authority, when they are
issuing a permit or renewing a permit, they must consider the
cumulative impacts, in a sense, because they have to look at
the quality of the receiving water body, and whether or not
that is meeting water quality standards.
So, as permitting authorities are looking to identify what
limits should be allowed from a particular discharge of perhaps
a new industrial facility, they must consider whether or not
the water quality of their receiving water body is meeting
standards or not. And then I would just echo, as others have
talked about, the funding it and making it available in forms
that can assist communities that are disadvantaged.
Ms. Johnson of Texas. Thank you very much. I yield back.
Mrs. Napolitano. Thank you, Ms. Johnson. Mr. LaMalfa, you
are recognized. Mr. LaMalfa, you are recognized.
[Pause.]
You are muted. Mr. LaMalfa, you are muted. There.
Mr. LaMalfa. Yes. Thank you. OK. Thank you, Madam Chair. I
appreciate your patience on that. And thank you for the hearing
today. I am sorry. I am bouncing between committees here today.
So, I want to talk about some issues going on in far
northern California with the water challenges we have, partly
due to the actions taken by the Water Resources Control Board
of California. And some of the things that they need to know
about with what is--basically water [inaudible] stealing. Now,
we have a gigantic problem with marijuana grows all over our
State, but it is certainly--in L.A. County, Riverside, San
Bernardino as well as a lot of it in Siskiyou County, Shasta
County, Butte, and others. And the amount of water we are
losing to these grows illegally is very significant.
So, at the same time as the water board is coming in and
shutting down water to agriculture on the Shasta River Water
Association, as their water diversions are beginning for crop
season, they have to grow food for people. They had the farmers
up there to plead to allow the use of the water for fire
suppression and keeping their livestock they already have alive
through watering. And so, they face penalties of $500 per day
for violating a curtailment, $10,000 per day for violating the
cease and desist. And the board is requiring a minimum flow of
50 cubic feet per second through the Shasta River.
So, the situation with the basically unregulated marijuana
grows doesn't seem to get that same attention. So, the State
board's priorities seem to look like farmers have their water
taken away. Fire suppression probably won't get water from a
nearby source. They would have to fly the helicopters and
aircraft and others much farther away to get water. But the
fish are guaranteed water. So, we have illegal grows. The water
theft is basically being ignored. It is not being enforced.
These grows are happening against county ordinance. They are
happening against the size the State would perhaps allow under
legislation that passed. And they are certainly against Federal
law. So, we've got a giant problem.
So, it has been publicized several times in the L.A. Times,
for example. So, I would like to actually submit, for the
record, Madam Chairman, these articles from the L.A. Times to
talk about this very seriously on the marijuana grow problem
around the State.
Mrs. Napolitano. So ordered.
[The articles are on pages 67-81.]
Mr. LaMalfa. Thank you, ma'am. Thank you. So, Chairman
Esquivel, why is the State spending its time and resources
enforcing water diversions that have been going on for many
decades in normal farming and ranching operations producing
food as well as drinking water sources that you would have for
these small towns up there, and instead the needs of the
cartels setting up illegal water theft operations growing
illegal marijuana are allowed to thrive? We have multinational
cartels up there getting away with this as farms go dry, and
even water for fire suppression is taken away.
Mr. Esquivel. Thank you, Congressman. And I appreciate and
acknowledge that we are in a historic drought. An incredible
circumstance is up and down our watersheds. The State board
itself currently is supporting over 2,200 households with
hauled water throughout the State because of declining
groundwater levels. So, managing our water resources in the
middle of this drought is incredibly important. And if you look
across the West, curtailment is far more a regular function of
actually administering water rights. And, actually, this last
year was the first time in California's history that we are
actively administering water rights because of water levels
being so low.
And I would note, though, that these curtailments largely
protect senior water right holders in watersheds and is our
here rational way of managing through what is incredible
scarcity. I have to politely push back. It is not an either/or.
If you look at the curtailment and enforcement work that the
board is doing, we are also following up on illegal diversions
from cannabis, and actually have here years of working with
locals to try to best bring the folks that are coming to the
legal space legally, and making sure that we are enforcing
against illegal growths and, importantly, illegal diversions,
whether it is cannabis or other diversions in the watershed in
the middle of this incredible drought.
So, I welcome your interest in this. I would be glad to
continue to follow up and explain the enforcement actions that
the board is taking against illegal cannabis as one aspect of
what is a multipronged drought response that includes putting
our communities in the center of that response and ensuring
they have access to clean water, as well as curtailing and as
well as ensuring that the quality of our waters are protected.
Mr. LaMalfa. Well, I appreciate that. But everything I
represent is north of Sacramento. So, I can't speak to how much
the board might be enforcing in southern California. But we are
not seeing it in the North.
Mr. Esquivel. I have specific numbers. I can pull them up
and share them certainly with you of dozens of inspections and
current violations that we are pursuing. I have to be careful.
I am actually fire-walled from a lot of that enforcement work
because I have my role here ultimately as a judge, if there are
any disputes amongst that enforcement work. But I know, and we
have statistics around, specifically in the Scott and the
Shasta, and up in Siskiyou County, the enforcement work that we
have been doing.
Mrs. Napolitano. Mr. LaMalfa?
Mr. LaMalfa. [Inaudible] law enforcement on farming and
ranching, but we need it for the marijuana site. The marijuana
is running rampant with cartels.
Mrs. Napolitano. Mr. LaMalfa, your time has expired.
Mr. LaMalfa. OK. I look forward to that information from
Mr. Esquivel. Thank you.
Mrs. Napolitano. Thank you, sir.
Mr. Esquivel. I will follow up.
Mrs. Napolitano. We are now recognizing Ms. Norton. Ms.
Norton, you may proceed.
Ms. Norton. I want to thank you, Chair Napolitano, for
holding this important hearing, and Chair DeFazio for including
my provisions, authorizing studies of swimming in the Potomac
and Anacostia Rivers, and of a second drinking water source and
increased storage capacity in the House-passed Water Resources
Development Act. And I hope these provisions will be included
in the final bill.
Mr. Esquivel, it is well-established that racial
discrimination is pervasive in access to clean water resources.
Communities of color are the most likely to be impacted by
water pollution and denied access to clean, safe, drinking
water. Could you explain more what factors are being taken into
account as the California State Water Resources Control Board
develops its racial equality plan, and are there factors that
other districts may consider when working to combat racial
discrimination in clean water access?
Mr. Esquivel. Thank you so much, Congresswoman, for the
question. And I think I will start by saying so much of our
work, the most important part is actually seeing communities.
There on the drinking water side, the leadership of the State
water board, but importantly with communities, with water
agencies, with Californians, developed a drinking water needs
assessment where we looked at the technical, managerial,
financial capacity of systems, their violations.
We at the State water board actually regulate nearly 3,000
water systems in the State of California. And altogether, we
have somewhere--those are community water systems--we have
7,000 public water systems. And those vary from Los Angeles to
San Francisco, very well-resourced large agencies,
sophisticated agencies to those that are serving below 500
connections: smaller agencies, part-time boards, and a real
challenge with access to clean water. And that nexus between
racial equity and race and access to water, but importantly the
data to actually see communities, not wait for systems to fail,
not wait for a solution to be brought to us from communities
that are struggling to provide other basic services that we
know are disadvantaged in so many ways. It is unfair for the
State to sit back and say the challenge is on you. And instead,
so much of the work that we have done is about lifting up that
lift experience through data and making sure then by having
that data, we can funnel funding, we can funnel discussions and
consolidate systems across regions, which is really the long-
term solution for so many of us. But that requires so much
discussion and, importantly, putting people first, that it has
been the resources that Governor Newsom has provided the board
has really made the difference to see communities, to be part
of discussions, and to lift up the challenges and experiences
that so many of our communities have suffered under for
decades.
I will say that has been so much of the important work as
we pursue it is really on that data side.
Ms. Norton. Thank you for that response. Ms. Gatz, bodies
of water in the District of Columbia are affected by urban
runoff and nonpoint source pollution. Since the Clean Water Act
does not authorize the regulation of nonpoint sources, what can
be done to increase regulation of these sources? Is a CWA
amendment the best option or what is?
Ms. Gatz. Of course, Congresswoman, CRS doesn't take
positions on the best option, but I can provide you with some
options that are available to Congress in addressing this. Some
proponents will argue that regulation of nonpoint sources is
something that should be pursued, and that there is a
disproportionate amount of pressure on point sources to reduce
discharges. But others will argue that the observers believe
that the best approach is to continue collaborative,
stakeholder-based approaches that try to utilize financial
assistance from the Federal Government, from Congress, through
grants, technical assistance and other means to address
nonpoint source pollution.
So, in those cases, an option for Congress would be to
continue to support the types of programs that help manage
nonpoint source pollution, like the Clean Water Act section 319
program, and some of the areas around the Nation, some of the
Geographic Programs, the National Estuary Program can also help
support such efforts. And even the Clean Water SRF, which we
have talked a lot about today, also, does have eligibility for
those types of projects as well.
Ms. Norton. Thank you very much. I see my time has expired.
Mrs. Napolitano. Thank you, Ms. Norton.
Mr. Carbajal, you are recognized.
Mr. Carbajal. Thank you, Madam Chair. And thank you to all
the witnesses for being here today. Before I came to Congress,
I served in local government as a county supervisor in Santa
Barbara County. And I am very familiar with the role of the
State Water Resources Control Board, and the balancing role
that it has in trying to address the regulatory framework of
all these water systems and yet try to do it in a balanced way
that collaborates with those being regulated. And it is always
a challenge and never easy.
Mr. Esquivel, I really appreciate your leadership and the
role that you played in making the State board work
collaboratively with stakeholders. On October 18, 1972,
Congress took a historic step when it enacted the Clean Water
Act into law. For the past 50 years, this landmark legislation
has been responsible for protecting one of our Nation's most
precious and finite resources from pollution: our waterways,
including our oceans, lakes, and rivers.
Mr. Esquivel, as California continues to deal with the
prolonged drought conditions, can you discuss how the State is
dealing with this challenge?
Mr. Esquivel. Thank you, Congressman. It is multipronged.
We have communities that are running out of water because of
drought. We have a need to administer water rights to ensure
that we are not draining our watersheds to the last drop. And
here managing through what may very well be another dry near
because of a La Nina. So, the actions that the State is taking
are ones of immediate response, certainly, making sure that our
communities are supported; we don't have communities running
out of hauled water, including those on domestic wells; setting
up programs with our county partners, which are such a
critical, key part of responding to the drought; but then,
also, thinking about the long term, how we make investments in
the next century's worth of infrastructure, including water
recycling, stormwater capture, and groundwater recharge.
Governor Newsom, under his leadership, we just developed a
water supply strategy that is trying to really quantify what is
this aridification, this hotter, drier State that we are going
to have to continue to adapt to. And where do we need to
continue to conserve? And how do we also grow our water
portfolio? And it is going to take, really, and it has been
noted here, focusing on workforce development, focusing on
bringing in the best and brightest minds to the challenges we
are facing. And drought is one aspect of it, but it is also a
future flood. It is also really being specific and, here,
adapting our water systems to this new 21st-century climate
that we know we have.
So, it has been on the immediate, it has been about
responding to communities and the growing complexity there, but
also about funding and shaping the policies that will help
guide us through this next generation of projects, including
direct potable reuse.
Mr. Carbajal. Thank you. The Bipartisan Infrastructure Law,
which my colleagues and I helped draft, made available billions
of dollars in supplemental funding for the Department of the
Interior and the U.S. Department of Agriculture to address
drought, wildfire, and ecosystem restoration needs.
Specifically, we provided the Department of the Interior with
over $8 billion to help Western States like California.
Can you delve into how the Bipartisan Infrastructure Law
has helped California continue to lead and comply with the
Clean Water Act? Mr. Esquivel?
Mr. Esquivel. Thank you again, Congressman. I think that as
was noted, you dial back 50 years ago, and so much of the
progress that we have had was because of the investments we
made to actually achieve the water quality standards we were
looking for from our clean water sector, wastewater treatment
plants, and other folks in the industry.
And as we look forward now, the Bipartisan Infrastructure
Law is a good downpayment for what is the need of a new
generational reinvestment. Because of aging infrastructure,
because of the pressures we know and have spoken of on climate
change, and the inequities we see, it is going to take
resources. And, regrettably, as we think of affordability, as
we ensure that we can have sustainable systems into the future,
that Federal investment, that backbone investment is so
critical. And you see other sectors--transportation, energy,
things that are so fundamental to our economies--be funded at
the Federal level to help subsidize the pressures in our
communities. And we saw a regression of that on the clean water
side, on the drinking water side, from those historic
investments in the 1970s.
Now is the time to--and as the Bipartisan Infrastructure
Law has done is energize so many of the discussions, because
with the resources to actually invest, it is bringing people to
the table, it is bringing communities and other interested
parties to figure out how we accomplish this huge goal.
Mr. Carbajal. Thank you. With the limited time, Ms. Tsosie,
thank you for your testimony you gave----
Mrs. Napolitano [interrupting]. You are out of time.
Mr. Carbajal. Since I am the last one, may I have 30 extra
seconds, Madam Chair?
Mrs. Napolitano. You may.
Mr. Carbajal. Thank you very much. Ms. Tsosie, thank you
for your testimony today. Can you discuss what are the biggest
challenges Tribes face in providing clean water to their
communities?
Ms. Tsosie. Thank you, Representative. There are several
challenges. I am happy to get you and your office a list given
the limited amount of time. But funding, infrastructure, and
regulation are some of the biggest ones that I have noticed in
my capacity.
Mr. Carbajal. Thank you very much, Madam Chair, I yield
back.
Mrs. Napolitano. Thank you very much, Mr. Carbajal. Miss
Gonzalez-Colon, do you wish to speak?
Miss Gonzalez-Colon. Yes, ma'am.
Mrs. Napolitano. You are recognized.
Miss Gonzalez-Colon. Thank you, ma'am. Mr. Ross, as many of
us here today know, Puerto Rico is still in the midst of
responding to Hurricane Fiona which has dropped more than 20
inches of rain in part of the island. And it has continued to
rain. And as of yesterday, more than 700,000 customers of
Puerto Rico Aqueduct and Sewer Authority, PRASA, as we call it,
are without drinking water service after the island was hit.
Rivers are still overrunning their banks. And more than 112
filtration plants across Puerto Rico are not operating due to
flooding. On top of the water issues is that electricity across
the island is, again, down for the vast majority of people and
services such as water treatment facilities, among others.
So, my question for you and the rest of the panel is this:
What resources are available under the Clean Water Act in these
emergency situations to ensure that my constituents will have
safe drinking water available in the most efficient manner
while response and eventual recovery are ongoing?
Mr. Ross. Representative, thank you so much for the
question. And our heart breaks for what is happening down there
in Puerto Rico right now. I know we spent so much time--EPA
spent a lot of time working to help the island of Puerto Rico
recover from some of the last significant blows.
I will look at that in two-fold. I think there is
significant funding on the Clean Water Act, both in some of the
grant programs and long-term financing and flexible financing,
including the new enhancements that have come out in the most
recent round of legislation. I think the short term, I would
also take a look at FEMA. There is a very, very significant
pool of funding both in emergency response, but also in
proactive future resilient building. And there was a fairly
significant, over the last 5 or 6 years, modification to the
FEMA funding opportunity. And so, I would really encourage
Puerto Rico to spend a lot of time looking at resiliency
funding under FEMA, in addition to the Clean Water Act and
Drinking Water Act portfolio.
Miss Gonzalez-Colon. And we are still managing that. Right
now we are working with FEMA to have generators actually up and
running those water plants. But we may not be able to have
generators, all power, to all treatment plants on the island as
soon as we want.
So, how can the Clean Water Act be best utilized post-
hurricane recovery to mitigate against future losses and
develop green infrastructure to help deal with excessive
waters? Mr. Ross, can you help me with that?
Mr. Ross. Yes, I do think--there is flexibility under the
existing authorities in the State revolving funds,
particularly, even with the loan forgiveness, but I think that
that is particularly important down in Puerto Rico, to be
funding the green infrastructure and to be looking at
stormwater capture, not only as protecting public health, but
also as new sources of water, right? And I think that is one of
the transitions the water sector is going through right now is
looking more holistically at rather than stormwater being an
emergency thing that we had to grapple around, it is also
finding a way to using green infrastructure to build more
protective resilient communities, and also looking at capturing
other sources of water going forward, whether or not it is a
short-term emergency response or long-term viability of the
island operations.
Miss Gonzalez-Colon. Well, thank you. And, again, if anyone
else on the panel would like to add anything, I just would
welcome the input.
Mr. Ross, if Congress moved a disaster supplemental for
those affected by Hurricane Fiona, in your experience, what
should be included there to better mitigate against future
disasters?
Mr. Ross. Well, I really think, looking at that resilient--
I think it is a set-aside out of every annual appropriation for
FEMA for the emergency response. They can set aside 5 or 6
percent of the appropriation for future resiliency building. I
think that is really innovative, and it is a way to be thinking
about how can we build the resilient infrastructure so we are
not recovering?
I do think we also need to be looking at--and I saw this,
even when we were there, the speed at which the Federal
Government can respond. The administrative State is difficult
to operate in, and trying to find a way with a single lead to
get all the agencies on the same page. So, I think that
interagency coordination needs work in the future to be more
responsive.
Miss Gonzalez-Colon. Thank you. And for the final, how can
implementation of that green infrastructure in the watershed
help protect water treatment facilities and critical water
infrastructure during and post-natural disasters, such as
Hurricane Fiona? Anyone on the panel?
Mr. Witt. Congresswoman, I will answer that question. Thank
you for posing it. I think one of the issues is that, it is
what you can build back with the FEMA funds. And I totally
agree with Mr. Ross that FEMA is certainly where Puerto Rico
should be looking right now, and that was the best source for
help. But it is what you can build back with FEMA funds. And,
unfortunately, PVSC in New Jersey has a lot of experience with
this, as PVSC was completely wiped out in Superstorm Sandy a
decade ago. And so, we are currently in the process of still
rebuilding our facility from that devastation.
But in order for the funds to be really useful, what you
need to be able to do is not only build back what you had and
then protect that, but maybe build something better to begin
with when you are building back, as opposed to just what you
had. And removing restrictions on what you can and can't build
going forward with using those FEMA funds may be a better way
to go about it.
Miss Gonzalez-Colon. Thank you. My time expired. So, I want
to thank all the members of the panel. Madam Chair, I yield
back.
Mrs. Napolitano. Thank you, Madam. I am listening with
great intent, but we want to make sure the Native Americans and
the communities of color have more focus from especially the
Army Corps and the EPA, as Ms. Norton indicated. It is time
that they got recognition, that they have been overlooked. And
we certainly want to celebrate the 50th anniversary of the
Clean Water Act next month. And I think we have learned a lot
from the highlights and lessons learned from the witnesses. And
I thank them very much for their input. It was a good hearing.
But I also want to thank the whole staff for putting it
together for us.
And I ask unanimous consent that the record of today's
hearing remain open until such time as our witnesses have
provided answers to any questions that may be submitted to them
in writing. And I also ask for unanimous consent that the
record remain open for 15 days for any additional comments and
information submitted by the Members or witnesses to be
included in the record of today's hearing. Without objection,
so ordered.
I also would like to thank our witnesses again for your
valuable testimony today. It is very insightful and
enlightening. And if no other Members have anything to add, the
subcommittee stands adjourned.
[Whereupon, at 11:56 a.m., the subcommittee was adjourned.]
Submissions for the Record
----------
Prepared Statement of Hon. Sam Graves, a Representative in Congress
from the State of Missouri, and Ranking Member, Committee on
Transportation and Infrastructure
Thank you, Chair Napolitano, and thank you to our witnesses for
being here today.
Today, we look back on the impact the Clean Water Act (CWA) has had
on our nation's waters since the bill's passage 50 years ago.
While progress has been made, plenty of work remains in order to
accomplish the Clean Water Act's goals.
Unfortunately, we have consistently seen improper interpretations
of the CWA result in the implementation of flawed, overreaching water
policies.
This has hindered our ability to achieve the bill's underlying
water quality goals.
There is no clearer example of this than the debate over the
definition of a ``water of the United States,'' also known as a
``WOTUS,'' and the controversy over how to regulate these waters.
Decades of back-and-forth have created uncertainty for rural
communities, farmers, business, and industries who rely on clean water.
Although the 2020 Navigable Water Protection Rule finally provided
long-awaited clarity on the scope of WOTUS, the new Administration has
decided to unravel this rule, once again creating confusion and chaos.
Today, I look forward to hearing more from each of you about the
implications a return to a costly, burdensome, and broad WOTUS
definition could have on local communities, in addition to your
insights into what other work needs to be done to achieve the goals of
the Clean Water Act we set about to achieve over 50 years ago.
Article entitled, ``The reality of legal weed in California: Huge
illegal grows, violence, worker exploitation and deaths,'' by Paige St.
John, Staff Writer, Los Angeles Times, September 8, 2022, Submitted for
the Record by Hon. Doug LaMalfa
The reality of legal weed in California: Huge illegal grows, violence,
worker exploitation and deaths
by Paige St. John, Staff Writer
Los Angeles Times, Sept. 8, 2022, 5 a.m. PT
At sunset from atop Haystack Butte, the desert floor below shimmers
with a thousand lights.
Illegal cannabis farms.
At this hour and distance, serene hues cloak the rugged enclave of
Mount Shasta Vista, a tense collective of seasonal camps guarded by
guns and dogs where the daily runs of water trucks are interrupted by
police raids, armed robberies and, sometimes, death. So many hoop
houses pack this valley near the Oregon border that last year it had
the capacity to supply half of California's entire legal cannabis
market.
Proposition 64, California's 2016 landmark cannabis initiative,
sold voters on the promise a legal market would cripple the drug's
outlaw trade, with its associated violence and environmental wreckage.
Instead, a Los Angeles Times investigation finds, the law triggered
a surge in illegal cannabis on a scale California has never before
witnessed.
Rogue cultivation centers like Mount Shasta Vista now engulf rural
communities scattered across the state, as far afield as the Mojave
Desert, the steep mountains on the North Coast, and the high desert and
timberlands of the Sierra Nevada.
Residents in these places describe living in fear next to heavily
armed camps. Criminal enterprises operate with near impunity, leasing
private land and rapidly building out complexes of as many as 100
greenhouses. Police are overwhelmed, able to raid only a fraction of
the farms, and even those are often back in business in days.
The raids rip out plants and snare low-wage laborers while those
responsible, some operating with money from overseas, remain untouched
by the law, hidden behind straw buyers and fake names on leases.
Labor exploitation is common, and conditions are sometimes lethal.
The Times documented more than a dozen deaths of growers and workers
poisoned by carbon monoxide.
The scale of the crisis is immense. A Times analysis of satellite
imagery covering thousands of square miles of the state showed dramatic
expansion in cannabis cultivation where land is cheap and law
enforcement spread thin, regardless of whether those communities
permitted commercial cultivation.
The boom accompanied a switch in cultivation technique, from annual
harvests of outdoor plots to large, canopy-covered hoop houses that
permit three to five harvests a year.
The explosive growth has had grave, far-reaching consequences,
according to a Times review of state, county and court records as well
as interviews with scores of local residents, legal and illegal
cannabis growers, laborers, law enforcement, market analysts, community
activists and public officials:
Outlaw grows have exacerbated cannabis-related violence,
bringing shootouts, robberies, kidnappings and, occasionally, killings.
Some surrounded residents say they are afraid to venture onto their own
properties.
Laborers often toil in squalid, dangerous conditions and
frequently are cheated of wages. In four counties alone since
legalization, carbon monoxide from generators and charcoal braziers has
killed seven workers as they labored or tried to stay warm in sealed
greenhouses on illegal farms, and eight more inside uninhabitable
buildings, coroner records show.
Intense cultivation is causing unmeasured environmental
damage. Millions of gallons of water are being diverted at a time of
severe drought, pulled out of aquifers even as the wells of local
homeowners go dry. Unchecked chemical fertilizers have been deployed,
along with banned, lethal pesticides.
The immense scale of illegal cultivation fed a glut that
crashed wholesale prices last year, jeopardizing even those in the
licensed market. Small-scale legal farmers unable to sell their crop
have been pushed toward financial ruin.
The pitch for Proposition 64 focused on grand benefits: an end to
drug possession laws that penalized the poor and people of color, and
the creation of a commercial market that in 2021 generated $5.3 billion
in taxed sales.
But California failed to address the reality that decriminalizing a
vast and highly profitable illegal industry would open the door to a
global pool of organized criminals and opportunists.
For those sidestepping taxes and regulation, the reduced criminal
penalties included in Proposition 64 lowered the cost and risk of doing
business.
Although no hard data exist on the size of the illegal market, it
is indisputably many times larger than the licensed community. The
Times' analysis of satellite images shows that unlicensed operations in
many of California's biggest cultivation areas, such as parts of
Trinity and Mendocino counties, outnumbered licensed farms by as much
as 10 to 1.
Butte County, at the northern end of the state's Central Valley,
tried to ban commercial cultivation, but the area covered by cannabis
greenhouses in Berry Creek soared 700% in five years. Ravaged by
wildfire, it is not rebuilt homes but the shiny plastic of greenhouses
that gleams between the charred black skeletons of the forest.
Neither a ban nor lack of water dissuaded outlaw growers from
erecting hoop houses on the desert sands of Lucerne Valley, where the
state mapped 13 cannabis plots before legalization and The Times last
year found 935 greenhouses. A still-running campaign by the San
Bernardino County sheriff in 12 months razed more than 8,200
greenhouses without running out of targets.
California has done little to address the crisis.
Enforcement efforts against the illicit market are spread across a
variety of state agencies with insufficient resources and very
different priorities. Seven years after water regulators set out to map
and measure the impact of cannabis cultivation in California, the work
remains unfinished.
Under Gov. Gavin Newsom, a champion of legalization, California has
subscribed to an industry-backed theory that market forces will
eventually squeeze out illegal growers. When licensed growers this year
complained they could not compete, Newsom agreed to tax breaks and his
administration created incentives to expand the market by giving grants
to communities that allow commercial cannabis.
At the same time, he increased the penalties against those that
don't. Communities that prohibit commercial cannabis are already barred
from key state enforcement grants. A measure written into Newsom's
budget bill also blocks them from the closed-door meetings of a task
force set up to advise the governor's administration on cannabis
policy, including what to do about the illegal market.
Illegal cannabis' thorniest challenges fall on overwhelmed local
law enforcement agencies and code enforcement departments, ill-equipped
to contend with criminal networks behind the growth.
The rugged forests and valleys of Mendocino County, deep in the
heart of California's famed Emerald Triangle, renowned for the quality
and quantity of its weed production, have an estimated 5,000 illegal
cannabis farms. The grows range from homestead farms to dangerous drug-
trade operations, such as one where deputies this spring found an AK-47
modified for full-automatic fire.
The sheriff's cannabis enforcement team consists of a single
sergeant and a part-time deputy. They try to identify the worst
offenders, borrow officers from neighboring counties for raids and
ignore the rest.
``It's like taking on a gargantuan army with a pocket knife,'' said
Sheriff Matt Kendall.
Noel Manners' licensed farm had a problem--too much cannabis.
Regulators in 2020 sent satellite images that showed large hoop
houses on his Mendocino County property that were not permitted under
his state cultivation license.
But Manners knew the offending weed wasn't his.
A large illegal grow had crept onto his 800-acre timber tract.
Manners waited for winter, when he knew the operation would be dormant,
and hiked up the hillside. He found trees felled for a half-acre
clearing, three giant plastic-covered hoop houses, and--especially
repugnant because the longtime grower was a leader in organic cannabis
farming--chemical fertilizers spilled on the ground.
Manners shoved the outlaw operation back across his fence line with
his mini-dozer. It returned the next spring--with unwelcome signs of
activity.
Soap suds frothed in his mountain pond. Gunfire echoed at night.
Walking his land one rainy day, Manners smelled something foul.
``I saw these little white, almost like, flowers on the ground,''
he said.
He was standing in a field of toilet paper.
Manners, 63, was a pioneer in cannabis, a former bicycle shop owner
with a laid-back smile and the habit of hanging his eyeglasses on the
collars of his Grateful Dead T-shirts. He left the Sacramento Valley
three decades ago to move his family to this remote mountain
overlooking Round Valley.
He joined the generations of growers who dodged the law while
building an economic and social fabric that filled the void left by the
collapse of the timbering industry.
When California led the nation by legalizing medical marijuana in
1996, he and other farmers became part of a gray market--one that
fostered sham medical recommendations and farms of 99 plants, one less
than the federal threshold for a mandatory five-year prison term.
Absent state regulation, permitting took the form of zip ties sold by
the sheriff to identify legal plants and protect them from raids.
Manners successfully navigated every shift in California's unstable
cannabis landscape. He developed strains that would help form the
foundation for today's industrial growers. High Times, the
counterculture magazine dedicated to weed, heralded his off-the-grid
operation, Camp Cool, as one of the nation's premier sun-grown cannabis
farms.
The interlopers on his mountain made Manners uncomfortable. He
would not go near the grow if it was occupied. But he could not avoid
them.
Manners met growers cutting through the woods, one carrying an
assault rifle. Another had a bandanna over half his face.
``I pointed at them and said, `This is my land. I'm the one who put
up the ``No Trespassing'' signs and whatnot last year.' And then I
asked them, `So how long, when are you guys going to be finished and be
off of my land?'
``And they said, `Oh, 10 weeks . . .'
``And I said, `Good enough.' That was my cue to leave.''
In July 2021, Mendocino County sheriff's deputies finally raided
the operation.
Manners returned to the site this winter, and discovered the
operation still standing. Three enormous hoop houses stood ready, each
the length of two houses. Three giant Doughboy swimming pools were set
up for mixing chemical-laden water for ``fertigation.''
``They're getting ready for another expansion,'' Manners said as he
documented the grow with his phone, his gray ponytail reflected in the
glass of the abandoned truck. He pointed out an overturned truck camper
top, and enclosures made from black plastic hung from the trees--
makeshift toilets.
Manners died unexpectedly in early April, falling and cracking his
head after the main artery from his heart suddenly tore. His brain
swelled and he did not regain consciousness after emergency surgery.
Afterward, his son noticed something uncharacteristic on his father's
nightstand: a .44 magnum pistol.
A coiled belt of bullets sat on the shelf below.
In the run-up to California's 2016 watershed cannabis vote, Mouying
Lee positioned himself at the forefront of a wave.
He moved from Fresno to Siskiyou County's high desert to snap up
scores of cheap lots in a failed vacation resort called Mount Shasta
Vista, little more than a spiderweb of cinder paths bulldozed between
lava rock and juniper scrub.
Then Lee sold most of the dusty, empty plots to Hmong like himself.
Hundreds moved from across the United States to the area populated
mostly by white hay farmers and cattle ranchers.
The would-be entrepreneur described his vision of a cultural center
for his people, Laotian refugees persecuted for siding with the U.S.
during the Vietnam War.
But in the dry volcanic valley, punished by sun and desiccating
wind, the newcomers built virtually no homes. They slept in sheds, or
beneath tarps, and tended 99-plant gardens of cannabis, one leafy stalk
short of the federal cutoff for prison. When the snow arrived, they and
the harvest disappeared.
Similar cannabis-centric enclaves emerged across Northern
California, often named after Laotian mountains or battlefields. They
were controversial in the Hmong community, but even critics said the
farms provided a steady flow of cash to a struggling population of
immigrants.
Lee said most of the cannabis in Mount Shasta Vista was grown for
personal use and ``the old way of medicine,'' such as brewing cannabis
tea and putting it in the shower for steam baths. He voiced dismay that
Siskiyou County's more established residents accused the Hmong arrivals
of organized crime.
Law enforcement frequently intercepted shipments of hundred-pound
parcels of cannabis sent from the Mount Shasta Vista farms. The
sheriff's posse mounted dawn raids and the county Board of Supervisors
passed ordinances that not only banned commercial cannabis but the
water deliveries that kept the grows green.
Lee said it was a cultural misunderstanding, if not overt racism.
Court filings show Lee was central to a highly organized cannabis
operation. Investigators raiding his houses found water delivery
schedules and receipts for dues for a 534-member association. The files
tracked members' medical marijuana cards and voting records as well as
search warrants executed by the sheriff. An investigator alleged the
organization even insured members against losses from raids. In texts
admitted into the court record, Lee brokered cannabis sales by the
hundreds of pounds to buyers flying in from afar.
With the opening of the recreational cannabis market, Lee expanded
beyond his Hmong clientele. He bought large parcels outside Mount
Shasta Vista, bulldozing one 620-acre tract so barren the scar is
visible from space. Dubbed the ``Cinder Pit'' by police, it contained
82 plots, each with two greenhouses and a shed. Tenants arrested during
drug raids told police they had leased their plots for $10,000 a
season.
It was not the sheriff but a tax agent who stopped Lee's expansion.
In 2020, with help from the California Franchise Tax Board, county
authorities charged Lee with money laundering and tax fraud, accusing
him of hiding some $1.5 million in unreported earnings. Lee pleaded not
guilty. Prosecutors asked a judge to set his bail at $3 million, but
Lee was released on his own recognizance.
Even with Lee sidelined, the expansion of cannabis farms in Mount
Shasta Vista continued, attracting other groups who spilled out across
the valley of Juniper Flat.
Single-family plots gave way to multi-season greenhouses. Some
built industrial-scale complexes that made the small Hmong camps look
timid.
``I never thought it was going to be like that,'' Lee said this
spring as he paced the upper balcony at the courthouse, waiting for his
Beverly Hills lawyer to fly in for settlement talks with the county
prosecutor.
At night the cannabis camps glow like a small city. The Times
mapped more than 1,300 farms in Juniper Flat last year. Their
greenhouses covered more than 10 million square feet, a 4,200% increase
since 2018.
It is the densest known concentration of illegal cannabis
cultivation in California.
Once the dominion of ranchers and retirees, the valley has taken on
outlaw qualities. Lookouts are posted at entrances off the highway.
Armed robberies are frequent. In 2018, deputies seized seven guns
during raids on illegal farms. Last year, they found 66. This spring,
police were summoned to one farm to fetch two intruders left tied to a
fence post.
Last month, four men who appeared to be in their 30s surrounded a
Times' photographer parked along the public highway outside Mount
Shasta Vista where he had stopped to document water trucks in the
distance filling up at a hay farmer's well. One of the men took out a
tire iron and began hitting the photographer's car, denting the body
and smashing the rear windshield and a sideview mirror.
Another told him: ``The only reason you don't have a bullet in your
head right now is because you are talking to me.''
Two years ago, masked assailants attacked a Mount Shasta Vista
grower and his companions, tied them up and killed the grower. Police
suspect it was an execution. It remains unsolved.
Also that summer, three men from Southern California carrying AR-
15-style assault rifles tried to rob growers. In the ensuing shootout,
one of the men was killed and his wounded accomplices fled on foot
through the rocky cannabis farms, calling 911 to beckon police to their
rescue. That killing also remains unsolved.
So do the killings of two Hmong women from Milwaukee in 2019. They
were shot on a cannabis farm near the Oregon state line, where another
enclave has settled, rarely visited by police.
Since 2016, at least eight cannabis growers in Siskiyou County have
died of carbon monoxide poisoning as they tried to keep warm with
charcoal braziers and unventilated generators, according to coroner
records obtained by The Times. The body of a ninth carbon monoxide
victim was found last year dumped on the side of Interstate 5, wrapped
in his sleeping bag. Police have no clue where he died, but they
presume it was a cannabis operation. Six of the dead were Hmong.
Det. Sgt. Cory Persing commands the county drug enforcement unit,
wrestling not just with cannabis but fentanyl, meth and everything
else. The five-person unit is down to two, Persing and another
sergeant, so they must call for volunteers from the jail to staff
raids.
Because of the Proposition 64 prohibition barring counties that do
not permit commercial growing from state enforcement grants, they rely
on funding from the federal Drug Enforcement Agency.
The ballot measure also dramatically lowered the cost of business
for illegal operators, reducing the criminal penalty for unlicensed
cultivation from a felony punishable with time behind bars to a $500
misdemeanor no matter how large the crop. To bring a felony case that
might shut down an operation, state prosecutors must find other
charges. That requires investigators.
Persing has none.
He is caught in an endless cycle of writing search warrants and
ripping out plants. Nine out of 10 grows go untouched. He has returned
to raided farms three days later to find them back in operation.
On a sunny day in October, Persing's team hit four small growing
camps. Alerted by the lookouts, the growers had fled by the time the
convoy arrived. Only a penned dog was left, snarling and snapping, a
pile of dry food on the ground kicked through the bars as though even
its owners were afraid to get close.
Officers used a mini-dozer to raze cannabis beneath a hoop house
built out of PVC pipe, while Persing peered inside one of the plywood
sheds used for habitation. He laid the search warrant and a receipt for
157 pounds of seized cannabis on a mattress set on two-by-fours, beside
an empty rifle case.
An outdated watering schedule hung on the unfinished wall. The shed
held personal financial papers for at least four people, and an offer
to buy 70 acres in eastern Oklahoma where there is a cannabis land
rush. A garbage pail and a plastic bucket in a makeshift stall
suggested a shower. A single-burner camp stove suggested cooking, but
there was no food.
Persing stood on the ridge road, sunglasses perched atop his close-
cropped head, and pointed out Mount Shasta Vista.
Then he used his arm to trace the expansion since 2019. In the
valley below, the white forms of hoop houses stretched for miles.
``This is all of the new stuff,'' Persing said, sweeping his arm
east across the valley. ``I mean, like, prior to this, there was one
house up in here. It has just grown, swoosh, all the way around.''
Some cannabis camps empty their pit toilets onto the ground and
trash into other holes. When the wind blows, empty fertilizer bags wrap
themselves around fences like tumbleweeds. Growers have bulldozed
parcels flat, scraping away vegetation, and the land is cut by deep
erosion scars littered with empty water totes and growing piles of
detritus. With the market collapse, some of the hoop houses are
abandoned, and dogs that once guarded the farms now run in packs that
sometimes attack cattle, and are frequently found dead or starving.
``All of that's illegal. Nobody seems to care,'' said Persing,
exasperation wearing on his voice.
Beyond Highway Patrol and wildlife officers who sometimes lend a
hand with physical labor, Persing said, ``we don't get much help from
any state agency.''
Struggling licensed cannabis growers like Mary Gaterud also feel
abandoned.
She is part of the cultural movement that was at the core of
California's early cannabis industry.
Gaterud earned a master's degree in existential phenomenal
psychology, took a look at her job prospects in the late 1990s, and
thought, ``Yeah, I think I'm just going to drop out and grow weed.''
She set up a small outdoor cannabis farm in Humboldt County on the
banks of the Eel River.
Her plants are organically nurtured in microbe-rich soil and
mulched with a winter cover of fava beans. She spent years developing
sweet-scented stocks, grown herself from seed, so that when she pops
opens a harvest tub in her state-inspected processing facility, a
converted root cellar, the smell is heavy with pineapple and coconut.
Her harvest fell victim to a glut in cannabis that drove down
wholesale prices. A pound of dried flower, which just a few years
earlier would sell in California for more than $2,000, was now worth
less than $300. If it sold at all.
Late last year, as Gaterud cut the summer's harvest, her
distributor in Los Angeles shipped back her 2020 crop, unsold and so
damaged by poor storage Gaterud wasn't even sure it was hers.
There was nothing else to do with the premium plants but ship them
to an extractor to be mulched and reduced to generic oil.
Gaterud and many other small farmers now face financial disaster.
``I'm barely hanging on,'' she said.
The glut was driven by two factors: the surge in illegal growing
and the state's issuance of licenses to grow more cannabis than
Californians consume.
Nicole Elliott, the governor's cannabis advisor and the head of the
Department of Cannabis Control, said she believed California's licensed
cannabis crop was about 3.6 million pounds, in a state that consumed
less than 2 million pounds.
The Times' analysis of state licensing records and production
estimates put the state's 2021 legal crop at well more than 7 million
pounds, even accounting for crop failures and growers who did not
plant.
Asked about The Times' findings of increased illegal cultivation,
Elliott said: ``Do I think it's worse? I honestly couldn't say one way
or another.''
Elliott said ensuring the integrity of the legal market is her
first focus ``before we expand those efforts out to the illegal
market.'' Other state agencies, she said, are better equipped to
contend with illicit grows.
Still, she said, ``it's not like we're sitting on our hands doing
nothing.''
In July, the department issued a news release heralding the removal
of illicit cannabis from the market, but detailed warrant logs obtained
by The Times under California's public records law show most of those
seizures were led by other police agencies. In the year since July
2021, the department's 59 sworn officers have initiated only 26 of
their own warrants against illicit growers.
The department's enforcement chief told The Times he was unable to
provide a list of criminal cases that resulted from those efforts.
The logs show most of the division's focus is on urban areas and
Southern California. In that same time frame, the Department of
Cannabis Control enforcement actions in Mendocino County--beset with
violent, large-scale criminal operations--were limited to a single day
of raids on four small farms along a creek, at the behest of wildlife
officers. There were no arrests.
The remainder of state enforcement is fractured and limited in
focus. National Guard teams still conduct summer raids that slash
plants, but they remove less than a quarter of the crop of eradication
campaigns a decade earlier. The state water resources boards were
front-runners in approaching illicit cannabis as an environmental
threat, but when fees from cannabis permits fell short of budgeted
projections, the boards in 2020 cut their cannabis enforcement
departments by half.
The biggest state player in combating illicit cannabis is the
Department of Fish and Wildlife, which focuses on the impact growers
have on streams and fauna.
Cannabis growing that endangers either remains a felony. But the 68
Fish and Wildlife cannabis field officers who have the expertise to
document those crimes are spread thin. Nine agents cover the seven-
county area responsible for an estimated 40% of illegal cultivation.
State regulators have had authority since 2019 to fine unlicensed
growers up to $30,000 a day, and to seek civil penalties that can
exceed $300,000 a day.
Although the state has sanctioned licensed growers for violating
regulations, The Times found the state attorney general has never
invoked civil penalties for unlicensed cultivation. The Department of
Cannabis Control used the tool once--against a Shasta County school
janitor and his wife accused of leasing their land for nine illegal
greenhouses.
Elliott could not explain why the case was filed at all. She said
it was a departure from what she believed department priorities should
be.
Other states experiencing rampant outlaw activity have taken more
aggressive measures. In Oregon, the problem prompted a special session
of the Legislature to step up police raids and services for exploited
workers. Oklahoma's attorney general is investigating law firms accused
of helping growers skirt residency requirements.
Gaterud, on her farm deep in the mountains of Humboldt County, said
she feels betrayed by California and angry that she suffers while those
flouting the law go unstopped.
Regulators, she said, repeatedly demanded detailed drawings of her
farm's plans and conducted nine separate inspections. She estimates she
spent$100,000 on fees and improvements to her property to meet local
and state requirements.
As the winter rains set in, she began borrowing money from friends
and relatives to live on. She got a part-time online job as coordinator
of an astrology school to make ends meet.
Her 2021 crop came back from the distributor, also unsold.
``I'm afraid that I am one bad piece of news away from having to
list my property,'' she said, ``and abandon my dream, life, everything
I have fought for.''
In the summer of 2020, Julian ``Terps'' Sanchez left his Orange
County apartment for long buying trips in Northern California to scour
illegal farms for 100-pound boxes of processed cannabis buds.
At home, his father, a former meth distributor named Miguel
Sarabia, used a strip mall cellphone and satellite dish franchise in
Lakewood to build a clandestine lab to make distilled oil for edibles
and vaping cartridges imported from Hong Kong.
The father and son represented the connection that enables illicit
growers like those in Mount Shasta Vista to reach a national market.
Sanchez supplied a Milwaukee operation some 250 pounds of cannabis
a month, and his father provided thousands of vape cartridges,
according to plea statements and other court filings. In just six
months, the California wholesalers were paid an estimated $1.7 million,
much of it sent through the mail with bills painstakingly taped between
the pages of magazines. It was a low-risk drug that commanded high
street prices, especially sold as vape cartridges, Sarabia's defense
lawyer said, making cannabis more attractive and more lucrative than
cocaine or heroin.
On the Milwaukee side, affidavits and plea statements filed in
federal court detail stash houses, business fronts and large weapons
caches that included untraceable ``ghost guns.'' The arsenal of one
woman, who gathered family members in a basement to assemble vape
cartridges, included a baby blue Glock on her dresser and another Glock
in a baby bassinet. The ring's local leader was a Mexican Posse gang
member who, an informant told investigators, twice boasted of shooting
a ``snitch.''
Sarabia had his eyes on the expanding world of legal cannabis.
Should Wisconsin approve recreational cannabis, he claimed on a 2020
wiretapped call, influential political connections guaranteed Sarabia a
wholesale license. He had already bought the building.
``I'll be the first one,'' he boasted.
Federal and state investigators in Wisconsin shut down the trade in
late 2020, charging 26 defendants. Sanchez pleaded guilty to drug and
gun charges for a 10-year sentence. Sarabia admitted to a single drug
conspiracy charge and was given five years in prison. None of the farms
supplying the drug ring were identified.
Few ever are.
Police and prosecutors told The Times that cannabis-related crimes
are a low priority, even in the federal court system, where cannabis is
classified the same as heroin and LSD. They described unwritten hurdles
their investigations must clear--such as proof of laundering millions
of dollars--before superiors will approve money and time to prosecute.
In the rare instances when charges are filed, they generally don't
target the people who head or fund the operations.
Federal justice officials in 2018 heralded investigators who used
utility bills and tracking devices to identify some 130 indoor grow
houses in Sacramento run by a network of buyers who wired money from
China. Nearly half of the 21 people charged were Chinese citizens.
Five years after the first arrests, most of those charged have yet
to go to trial. The operation's leaders weren't identified. A federal
official connected with the case, who was not authorized to speak
publicly, said Chinese authorities won't cooperate on such
investigations and U.S. Justice Department supervisors in Washington,
D.C., did not give the green light to continue digging.
The best hope, he said, was to seize local assets and ``disrupt the
finances . . . and put pressure on whoever is organizing this stuff.''
Nearly half of the money for the grow houses came from local
private investors who made high-interest loans to buyers with few
obvious financial resources. Court records show the lenders included a
Sacramento physician who told the court he hated cannabis, but was
unwittingly steered into underwriting illegal grow houses by a real
estate agent now charged in the conspiracy. And, he said, it was very
profitable.
Federal prosecutors allowed him, as they do with other such
lenders, to recoup his money when the property sold, even though a
forfeiture motion remained pending.
In one of the few federal cases that resulted in a conviction for
illegal cultivation, probation officials recommended four years in
prison for Aaron Li.
Li, who has a PhD in vision science from UC Berkeley, used money
from unindicted conspirators in China to turn nine suburban homes in
San Bernardino County into clandestine grow houses. Court records laid
out the mechanics of a sophisticated scheme that ran until 2019,
involving stolen electricity, straw buyers, fake leases, purloined
passport information and money moved from China to shell companies in
the U.S. One of the participants was a confessed money-laundering
courier for a Mexican narcotics ring.
Li's defense lawyer told a judge that his client was acting under
orders from unnamed bosses he feared, a claim she repeated to The
Times.
U.S. District Judge George Wu initially announced an eight-month
sentence. After Li said that he had young children, the judge reduced
it to six months.
``Marijuana is being cultivated legally--it's just a question of
getting the licenses,'' Wu said during sentencing. ``There's so much of
it. So why would I impose a lengthy sentence?''
A federal prosecutor in the case said there was no interest in
investigating beyond Li, saying the case had met its primary goal,
shutting down a community nuisance.
State Assemblyman Thurston ``Smitty'' Smith (R-Apple Valley) this
winter proposed restoring felony charges for large-scale growers but,
with no co-signers, he yanked the doomed bill before its first hearing.
His substitute measure to increase civil fines passed the Assembly but
failed to progress in the Senate.
A growers' group, the California Cannabis Equity Alliance, called
the proposed increase in fines ``a symbolic deterrent that will be good
for a press release and little else.''
``The potential profits to be made are too great.''
In the bowl of a beautiful and tragic valley bordered by the Eel
River in Mendocino County sits tiny Covelo.
It was the site of California's largest state-financed massacre--a
campaign that in 1856-59 slaughtered more than 1,000 Yuki tribal
members--and the destination for the U.S. military's forced march of
five more tribes. Remote and at times unreachable, the community has
struggled since the downturn of the timber industry and closure of the
local flour mill.
But Covelo had cannabis.
Small outdoor cash crops were common on Round Valley's patchwork of
private, federal and reservation lands. Mendocino County and the tribes
were tolerant, even if the U.S. Bureau of Indian Affairs did not
approve.
After legalization, outsiders rolled into the town in expensive,
lifted trucks with Central Valley license plates, moving as a group.
They began leasing land from tribal members.
By the summer of 2021, the town was overtaken. A Times analysis of
satellite images showed the valley floor that summer had 1,033 homes
and 2,423 cannabis hoop houses, almost one for every resident.
More than half are unlicensed. Hoop houses not only fill farm lots,
but backyards and front yards. They stand by the schools, behind the
auto parts store, beside the Catholic chapel.
``We have been totally overrun,'' Round Valley Indian Tribes
director James Russ said at a county advisory committee meeting last
year. ``Not just this reservation, but also this whole valley.''
With the surge in illegal cultivation came heavy-duty weapons,
violence and lethal chemicals. On one 2021 raid, deputies found bottles
of Metrifos, with ``peligroso''--dangerous--and a skull and crossbones
on the label. The nerve poison, taken off the U.S. market in 2009, is
still sold in Mexico to protect crops from rodents. The sheriff said
one deputy became ill after the raid and was hospitalized with
poisoning symptoms.
Working conditions on the farms are harsh. Laborers described 14-
hour days, living in tents without sanitation and having to provide
their own food with the promise of pay after the harvest, if it came at
all. Wage theft is so common laborers circulate lists of ``no pay''
farms.
In 2019, 40-year-old Jose Ramon Mejia Rios, a local man, died
inside the cannabis greenhouse he was tending. The county coroner
determined carbon monoxide killed him. A young woman living on the
property told The Times that Rios was part of a crew of growers who
leased space for their illegal greenhouses from her aunt. They pulled
out after the death, she said, and others took over.
The next year, two more workers died less than a mile apart, under
similar conditions, coroner records show.
Osnin Noe Quintanilla-Melendez, 32, from Honduras died sleeping in
a cannabis hoop house with a running generator.
Across from the local landfill, on a site with 52 illegal
greenhouses, Wilson Andres Rodriguez Villalobos, a 32-year-old worker
from Colombia, was found face-down inside an illegal greenhouse warmed
by propane torches.
Months later, on the same farm, another worker disappeared. Victor
Medina's family in San Jose received a ransom call from kidnappers
unable to prove the missing man was still alive.
``Cuidado con Covelo,'' one person wrote on a WhatsApp forum for
cannabis workers, ``que esta muy turbio.''
Watch out for Covelo. It's very shady.
``Aparecen muertos a cada rato.''
Dead people appear all the time.
In the late fall, a game warden investigating the smell from an
abandoned car outside Covelo opened the trunk to find the decomposed
corpse of Marco Antonio Barrera Beltran, 51, a Mexican citizen living
in the Central Valley. The sheriff said he had been working on an
illegal cannabis farm in Covelo. Beltran had been shot to death.
The murder investigation included a search of a bank of cannabis
farms where another worker died of carbon monoxide poisoning the year
before. But the case remains unsolved.
Covelo residents who spoke to The Times asked that their names not
be used because they were fearful of the growers around them.
One woman's water well now runs dry each May, the shallow aquifer
tapped by massive greenhouses that surround her house on three sides.
She has gone to extremes: let the garden die, collect drips from the
faucets, clean dishes with a spray bottle, and rely on a garden hose
from the neighbors and a storage tank to get through the summer. The
growers next door haul in water by the truckload. Their generators run
constantly, workers defecate in her yard, and she must block her
windows at night with cardboard to cut the glare from greenhouses.
Other residents described finding a cannabis worker, unpaid and
stranded in the hills, weeping and afraid his employer would return to
kill him. During a recent raid of an illegal farm, sheriff's deputies
encountered two workers from Mexico who said they had been held there
against their will.
``Right now, from the decimation I see in my valley, it . . .
breaks my heart,'' said Kat Willits, a local school administrator and
former council member of the Round Valley Indian Tribes.
Willits spent her childhood in Covelo visiting family, roaming the
valley, swimming in the creek beside spawning salmon. She was appalled
to return as an adult and find so many community members dependent on
leasing to illegal growers.
``Some people say that's the only way they can make money now,''
said Willits. ``[But] they're not making money . . . they're also
decimating their own land with the byproducts of cannabis grows.''
She said cannabis cash has hastened Covelo's social decay, not
uplifted it. There are more junked cars, more decaying homes, and more
violence.
``Great tradeoff,'' she said, with apparent sarcasm, ``for some
California college kids to be able to puff on a pen filled with a
cannabis product in public.
``What people think of as a harmless drug or medicinal product have
not seen what lies in the belly of the beast.''
Article entitled, ``Nobody knows how widespread illegal cannabis grows
are in California. So we mapped them,'' by Paige St. John, Staff
Writer, Los Angeles Times, September 8, 2022, Submitted for the Record
by Hon. Doug LaMalfa
Nobody knows how widespread illegal cannabis grows are in California.
So we mapped them
by Paige St. John, Staff Writer
Los Angeles Times, Sept. 8, 2022, 5 a.m. PT
By 2013, illegal cannabis grows were such a destructive
environmental force in California that state water regulators decided
it was time to go beyond their complaint-driven, piecemeal approach at
enforcement.
That required knowing how much cannabis there was statewide, and
where.
Nearly a decade later, the answer still eludes California.
So the Los Angeles Times embarked on its own effort to map
illegally grown cannabis, one that depended on a view from space.
Cannabis operations are easy to spot in satellite imagery. Plastic-
covered hoop houses and plots of individual dark-green plants are
distinctive and hard to miss, even more so in clear-cut tracts of
forest or vast expanses of desert.
The Times obtained 2021 satellite imagery from a mix of public and
private sources to canvass nearly 3,000 square miles of land in parts
of six counties: Siskiyou, Trinity, Mendocino, Shasta, Butte and San
Bernardino.
The analysis counted outdoor cultivation spots and measured the
square footage of greenhouses. It avoided areas with other active
agriculture that could be mistaken for cannabis, and looked for
telltale signs of weed, such as outdoor swimming pools to hold water
and outdoor plots adjacent to hoop houses.
To estimate greenhouse crops, The Times used industry-supplied
yield formulas. Not all greenhouses were filled and some crops were
lost to wildfire or police raids, so The Times followed another
industry practice and reduced raw crop estimates by 30%.
Measured that way, the survey area contained 25 million square feet
of illicit greenhouses with ample capacity to grow 2.6 million pounds
of weed--enough to supply the entire legal California market.
The illegality of these grows was determined using licensing maps
obtained from the state Department of Cannabis Control, county permit
databases, hemp registrations and tax assessor parcel records. On
Native American reservations, where unique ordinances sometimes permit
commercial cultivation, The Times also used ownership maps obtained
from the Department of Interior's Bureau of Indian Affairs.
By comparing these 2021 maps with those created from satellite
imagery four to five years earlier by The Times or by state
contractors, the analysis documented dramatic shifts in how and where
cannabis is grown.
In every place The Times looked, illicit cannabis production had
increased since California reduced criminal penalties for unlicensed
operations as part of legalization. There was little variation between
areas that licensed cannabis and those that banned it. The findings
suggest efforts to draw cannabis growers into the legal market are
foundering. All but 68 of the 782 cannabis farms below Post Mountain in
Trinity County, for instance, lacked a state license as of early 2022.
Cannabis researchers at UC Berkeley follow a similar methodology to
map and measure changes in cannabis cultivation. Humboldt and El Dorado
counties also use satellite imagery to find illicit growers and enforce
local cannabis codes.
California's effort to map cannabis began in 2013 after complaints
from Butte and other counties that failure to curb illicit operations
violated the federal Clean Water Act. The state's various environmental
agencies created marijuana enforcement divisions, and the California
State Water Resources Control Board in 2015 brought in a private
contractor to identify cannabis crops.
The results were outmoded and incomplete. The company reviewed
satellite images for only a fraction of California's geography,
steering clear of federal and agricultural lands. Its process was so
slow the final maps were two to four years out of date, and the 29,000
``facilities'' identified as cannabis grows included not just
greenhouses and gardens but also shopping centers.
Deep within the California Water Resources Control Board, a state
engineer in 2017 took up the task of building a faster, more
comprehensive tool. It was a machine-learning program that could
automatically detect cannabis cultivation on high-resolution satellite
images.
Agency staff dubbed it CannaVision.
By 2020, CannaVision could find cannabis farms missed by the state
contractor, and canvass entire counties overnight. The program
generated keen interest across state agencies from staff frustrated by
years of hunting for cannabis crops degrading streams and endangering
wildlife.
Over the course of eight months, talking point memos and draft news
releases were prepared describing CannaVision as able to quickly
identify illegal sites, and steer regulators to where environmental
damage was greatest.
The software also was credited with the ability to calculate the
amount of cannabis grown in California--though state officials say it
has yet to be put to that task.
Ready for public launch, the agency in August 2020 gave Gov. Gavin
Newsom's office its first full look at CannaVision, including maps that
showed that illicit cultivation outnumbered licensed grows. The
governor's office was represented by Newsom's senior cannabis advisor,
now head of the Department of Cannabis Control, Nicole Elliott.
Days later, the public rollout was killed and its website taken
down, according to documents released under the state's public records
law. Even public relations staff who spent months honing the media
package were not told why. The deputy water agency director who had led
the presentation to Elliott described the situation as ``a giant
clusterf--'' and told fellow directors he would explain only by private
chat.
Elliott didn't recall making specific comments or objections at the
meeting, a spokesperson for the Department of Cannabis Control said,
``but to the best of her knowledge there was a discussion related to
data quality and use of the resource as an investigative tool.'' The
water agency said that after the briefing with Elliott, staff
``received questions about the accuracy of the data'' from unnamed
participants and a decision was made that CannaVision ``was still in
its infancy and a formal rollout would be premature.''
A shroud of secrecy then soon enveloped the program. Water
administrators sought legal advice on keeping CannaVision out of the
public eye, exempt from public records disclosure.
Internal discussions show they struggled to provide a reason to
keep CannaVision confidential. Suggestions ranged from whether a
private company could replicate the software for profit to whether
CannaVision might make illegal cultivators targets for robbery.
``We need to put on our nefarious hats and think about how someone
could use this data to do ill,'' CannaVision's developer wrote. ``I
think we should try to slow the release of it for a while since we
don't really have the full picture of how a bad actor could use this.''
Privacy concerns were raised again a year later to deny The Times
access to CannaVision's raw maps. The water agency agreed to provide
only maps showing the number of greenhouses per square mile.
It took nine months for the state agency to release the documents
and emails used to produce this story, while an agency spokesperson
sought to blur CannaVision's singular focus on cannabis, suggesting it
could also be used to identify avocado plantations.
But internally, CannaVision was embraced as a tool against illegal
cultivation.
Agency records and interviews show the computer program's data runs
are now shared with agencies willing to sign confidentiality
agreements, including the Department of Fish and Wildlife, which raids
illegal farms. Most recently, it was used to identify cannabis
cultivation on a Humboldt County watershed where low water conditions
imperil native salmon. Weeks later, state cannabis officers began a
series of surprise farm inspections in the area.
At a December agency presentation, the governor's environmental
protection secretary, Jared Blumenfeld, applauded CannaVision as a tool
to target and deter illicit cultivators, who, he said, ``would be like,
`Jesus, these guys have an eye in the sky, we need to think twice.' ''
Article entitled, ``Illegal pot shops in California booming in plain
sight. Police raids do little to stop them,'' by Matthew Ormseth, Staff
Writer, Los Angeles Times, September 13, 2022, Submitted for the Record
by Hon. Doug LaMalfa
Illegal pot shops in California booming in plain sight. Police raids do
little to stop them
by Matthew Ormseth, Staff Writer
Los Angeles Times, Sept. 13, 2022, 5 a.m. PT
When the cannabis dispensary Hierba opened on Cesar Chavez Avenue
in October, customers had ``sticker shock,'' Guillermo Menjivar, the
general manager, recalled.
Even with a 30% opening week discount, shoppers still couldn't
understand why, for instance, a gram of First Class Funk cost $15.
They could be forgiven: Until Hierba--the first legal dispensary in
the city's Boyle Heights neighborhood--opened its doors, the only
options in the area were unlicensed storefronts that charge far less
for cannabis products because they don't abide by the raft of taxes and
regulatory obligations that state and local officials impose on
legitimate operations.
A mile east of Menjivar's clean, brightly lit business, in fact, an
unmarked and unlicensed shop had put a folding sign out on the sidewalk
that read, ``4.5 grams for $20.'' Inside the dimly lit room was a bare-
bones array of grimy mason jars piled high with bargain-priced buds.
The continuing success of illegal cannabis shops and the struggles
of legal ones in the heart of L.A.'s Eastside offer a stark
illustration of how California's legalization of marijuana has gone
wrong. Far from being eradicated, the black market is booming in plain
sight, luring customers away from aboveboard retailers with their
cheaper--if untested and unregulated--product.
Unlicensed dispensaries have become hotbeds of crime. Sometimes the
operators are the perpetrators, authorities say, selling cocaine and
methamphetamine alongside cannabis. At other times, they are the
victims. In August 2021, a man was gunned down in the doorway of the
illegal dispensary he ran in East Los Angeles.
Authorities have made little progress in curbing the cannabis black
market. Prosecutions are rare, according to court records, and shop
employees say some dispensaries don't even wait a day to reopen after
being shut down by the police.
``I don't see it slowing down,'' said one security guard at an
illegal dispensary that has been raided four times in the last year and
a half. ``Just look up and down the street. It's everywhere. And
everyone's making money.''
In the battle over black-market and legal cannabis, Indiana Street
is a dividing line. To its west is the city of Los Angeles, where local
laws allow retail cannabis businesses to operate, provided the required
licenses and permits are obtained.
On the other side of Indiana Street is East Los Angeles,
unincorporated county land where cannabis licenses are not issued and
it remains illegal for anyone to operate a dispensary.
Investigators for the L.A. County Sheriff's Department say there
are 25 to 30 illegal dispensaries operating in the East Los Angeles
area--the most of any of the department's patrol regions. In all, there
are an estimated 150 to 160 illegal dispensaries in the department's
jurisdiction, which includes unincorporated county land and cities that
contract with the sheriff, according to a sheriff's narcotics
investigator who asked to remain anonymous because he works undercover.
Most of East L.A.'s dispensaries are clustered along Whittier
Boulevard. Long the commercial heart of the neighborhood, the boulevard
is crowded with narrow storefronts offering money transfers, phone
repairs and tailoring, pawnshops and medical clinics, shoe stores and
immigration law practices. Racks of discounted clothing compete for
sidewalk space with women selling aguas frescas and chopped fruit.
Some of the dozen or so illegal dispensaries operating on any given
day along the boulevard advertise openly, with signage on the property
and Yelp pages. Others are more discreet, changing their names or
forgoing names altogether. One shop covered its windows with signage
from the car insurance agency next door.
When undercover detectives asked employees in the shop's lobby if
they sold insurance, they laughed and said no, according to a search
warrant application. Detectives served the warrant last September,
seizing cannabis, cash from the register and a safe, two handguns, a
rifle, a drum ammunition magazine and bags of what authorities
suspected was cocaine, court records show.
A Times reporter visited the dispensary two months after the raid.
Through the first door was a gloomy lobby with couches pushed up
against the walls, a vending machine in a corner and a door at the back
with a sign that read, ``We're open.'' Through that door, then another
one, was a small room lined with glass display cases. Inside were jars
full of cannabis priced from $8 to $10 a gram.
The sole employee said he was just a clerk and couldn't say who
managed the dispensary. A request for comment left with the clerk
wasn't returned.
Dozens of affidavits filed at the East Los Angeles courthouse to
obtain search warrants make clear that for most dispensaries along
Whittier Boulevard, being raided by the police is no deterrent. One
shop on Whittier Boulevard has been searched by the Sheriff's
Department four times in the last year and a half, most recently in
February, when detectives carried off its inventory and $819 in cash.
The dispensary's security guard described a recent raid to a Times
reporter. Deputies broke down the door, seized all the product and
money, and cited him and several other employees. With a court date
approaching, the guard said he didn't plan to show up and predicted the
authorities wouldn't pursue the case.
The security guard, who declined to give his name, said he had
worked at a Marshalls department store before getting the job at the
dispensary. He said he didn't know who owns the shop, the source of the
cannabis it sells or how much money it makes. He and other employees
were ``just trying to make our bread,'' he said.
``People come in and they're appreciative because it's a lot
cheaper than if they went somewhere legal,'' the guard said, noting
that the price they see is the price they pay--no taxes added.
Down Whittier Boulevard, a dispensary called Whittier's Best Buds
has been raided five times in the last year, search warrants show.
Investigators seeking a judge's permission to search an unlicensed
dispensary and carry off evidence--cannabis, digital video recorders,
cash, paperwork that might indicate its ownership structure--have a low
bar to clear, search warrant records show. It is often as simple as
noting people entering a storefront empty-handed and leaving with small
white bags, walking into a shop in plainclothes and asking an employee
about marijuana prices, or citing a dispensary's Yelp page.
Detectives can also apply for a court order to shut off the
business' power for 90 days, although, as a deputy wrote in seeking yet
another warrant to search Whittier's Best Buds, operators ``find
creative ways to power the business.'' When the shop was raided in
February, detectives carried off a Predator 3500 generator along with
cannabis and $4,159 in cash.
Sandwiched between a cellphone store and a shop selling women's
clothing, the dispensary offers grams of ``top shelf'' marijuana for as
little as $8, according to a menu taped above a security window. In the
dispensary's lobby, which was painted with a large, colorful cartoon
character inhaling from a bong, a man who identified himself as the
owner complained to a Times reporter about the Sheriff's Department's
raids, which he described as ``legal robbery.''
Wearing a baseball cap that read ``F-- Joe Biden,'' he said his
initial goal was to obtain a license and the necessary permits to run
an above-board business in an area of the county that allows it. ``Lots
of people want to get licensed, but the government doesn't want to give
it to them,'' he said.
``Tax, permit, license,'' he said, ticking off the things for which
a legal operator has to pay. ``We're going to take your money. Without
[the] license, we're going to f-- you up with raids. Either way, you're
going to lose.''
The raids have not made him consider shutting down, he said. ``Why
am I going to close shop? People are crying for this stuff, crying for
weed.''
Many of the people arrested on suspicion of operating or working at
illegal dispensaries in unincorporated parts of the county are not
prosecuted. Those who are typically don't face cannabis offenses, but
weapons charges after being caught with guns, according to a review of
court records. Even then, some defendants were allowed to enter
diversion programs and have their charges dismissed.
One man was arrested at Whittier's Best Buds on suspicion of
maintaining a place to sell controlled substances, a felony, and was
found to be carrying a handgun, records show. Charged five months later
with a misdemeanor crime of possessing a concealed gun, the man avoided
prosecution by entering a diversion program. After he showed he'd taken
a gun safety class and registered the weapon, the judge ordered the
Sheriff's Department to return $600 in cash and the newly registered
Glock 19 handgun they'd seized from him, records show.
Greg Risling, a spokesman for the Los Angeles County district
attorney's office, said prosecutors charge people with crimes
associated with operating illegal dispensaries ``when the evidence has
been sufficient to prove.'' The typical charge, Risling said, is a
violation of the county prohibition on cannabis dispensaries, a
misdemeanor.
Lt. Howard Fuchs of the Sheriff's Department's Narcotics Bureau
disputed this. ``The district attorney will not file these cases
whatsoever,'' he said. ``Even if it's near a school, they've told us
they will not file these cases.''
The lieutenant said prosecuting people who operate or work at
illegal dispensaries--and securing meaningful penalties--would be the
most effective way to shut them down. Other strategies, like obtaining
court orders to cut off a dispensary's utilities, are easily
circumvented, he said, while civil actions pursued by county lawyers to
evict or lock out illegal operators are time-consuming and difficult to
carry out in a meaningful way given the scale of the problem.
When it comes to charging people for crimes related to illegal
dispensaries, ``there's this attitude: It's just cannabis, we're not
going to incarcerate people for that,'' Fuchs said. ``Well, you're just
telling the legal market, `Good luck.' ''
Illegal dispensaries, meanwhile, are making money ``hand over
fist,'' Fuchs said. His detectives have seized cash and ledgers
documenting sales that indicate the busier ones are making as much as
$25,000 a day in revenue, he said.
An illegal dispensary can cost just a few thousand dollars to open,
investigators say: rent, product, some display cases, a surveillance
system, wages for a few employees.
Compare this to Menjivar's dispensary, Hierba. The shop's backers
have invested several million dollars and worked for nearly three years
to open it, he said. Driving up the start-up cost, he said, are delays
in the application process: state regulators certified the dispensary
in April 2021, but city authorities did not allow it to open until
October.
For some applicants, the process has taken as long as 18 months,
Menjivar said. All the while they must keep paying rent. ``You're
literally at their mercy,'' he said.
Legal operators must also abide by local regulations that dictate
where dispensaries can operate, so called ``green zones'' away from
schools and playgrounds. This restricts the real estate available to a
scrupulous dispensary operator.
All of this contributes to the price that consumers pay, Menjivar
said. Certification that the product has been tested for toxins, excise
taxes on wholesale purchases, sales taxes levied by state and local
authorities--``it costs more to do it the right way,'' he said.
Vito Ceccia, a detective supervisor who oversees enforcement of
unlicensed cannabis shops for the LAPD, said police work alone won't be
enough to ensure legal dispensaries survive. Local officials will need
to educate the public about the benefits of patronizing licensed shops
and stress the quality control that goes into their products.
``We realize this is not a law-enforcement-specific issue
anymore,'' he said. ``We're not going to arrest our way out of
unlicensed cannabis sales.''
The evening of Aug. 11, 2021, Daniel Franco was standing outside
the illegal dispensary that he operated on Whittier Boulevard when a
barrage of gunshots were fired from across the street.
As Franco tried to retreat inside, a bullet went through his head.
He died on the floor of the shop, six feet from his revolver, which was
resting on a table, according to a coroner's report. A coroner's
investigator noted bullet holes in the walls and ``large amounts'' of
cannabis heaped in plastic trays in the room where Franco died.
Twelve shell casings fired from an assault rifle were found across
the street. Eight more casings lay near the doorway of the dispensary,
indicating that the shooter had chased after Franco, the investigator
wrote.
His death is one example of the violence that plagues illegal
dispensaries, whose owners, employees and customers are vulnerable to
being robbed, swindled or killed, authorities say. Nonfatal crimes are
rarely reported for fear of drawing scrutiny from the police.
It's unclear why Franco was targeted; the sheriff's detective
investigating his death, Scott Giles, declined to discuss the case.
``We don't want the public or the people responsible to know what we
know,'' he said. No arrests have been made.
In a search warrant served in connection with the shooting,
sheriff's investigators said they believed Franco's shop may have been
associated with another illegal dispensary. A week after the killing,
someone called the Sheriff's Department to report seeing two men, one
carrying an AR-15-style assault rifle, enter a store on Cesar Chavez
Avenue a mile and a half northwest of Franco's shop, a detective wrote
in an affidavit used to obtain the warrant.
When deputies responded to the call and entered the store, they
discovered it was a dispensary. Cannabis, hashish, honey oil and, in a
corner, an AR-15 were in plain view, according to the warrant. Three
men and a woman were detained, and detectives carried off the rifle,
the cannabis products and $971 in cash.
Deputies had raided the shop--a blue stucco building with an iron
security door and no signage--three times in the last four months.
Detectives believed the dispensary was ``related'' to Franco's shop
``because the same employees have been arrested at both locations on
multiple occasions,'' the warrant says.
One of the men detained that day, Israel Zuniga, has been charged
with possessing a concealed gun in a public place, records show. He was
arrested at the same dispensary three months later and charged with
maintaining a place for the purposes of selling marijuana. In March, he
was arrested a third time at the shop and now faces a second charge of
possessing a concealed firearm, records show. Zuniga, 23, has pleaded
not guilty to the charges--all misdemeanors--and remains free, pending
the resolution of his cases. He has not been charged in connection to
Franco's killing.
The dispensary on Cesar Chavez Avenue where Zuniga was detained
remains open. In its reception area, a Times reporter asked the clerk
to speak with the shop's proprietor. ``Hold on,'' he said, and
disappeared through a door in the back of the store. He returned about
a minute later and said he would have to ``kindly decline'' due to
``privacy reasons.''
Most of the illegal dispensaries in East Los Angeles are being
``taxed'' by gangs, said the undercover sheriff's investigator. The
more sophisticated gangs demand money, while the cruder ones are
content with free product, the investigator said.
``They know they're both doing illicit activity, and no one's going
to say anything,'' he said.
Two of the area's largest gangs, Varrio Nuevo Estrada and East
L.A.-13, have opened dispensaries of their own, according to the
investigator, staffing them with gang members and selling not just
marijuana but methamphetamine, heroin and guns.
``They saw it was not complicated at all to run a cannabis
storefront,'' he said.
One security guard who works at several illegal dispensaries said
gang members had been trying to tax the owners of a shop where he
worked on Whittier Boulevard. The guard, a 26-year-old Compton resident
who earns $15 an hour to stand guard with an unregistered handgun,
asked not to be identified because he is involved in illegal activity.
Around 9 one night last September, he noticed several men standing
outside the dispensary. It seemed like they were casing the shop, he
said, so he walked outside and hid his gun in his car: If he was about
to get robbed, he thought he'd rather not have it on him.
Eight men walked into the dispensary. One pointed a gun at him and
told him to lay down and put his hands behind his head, he recalled.
They took his phone and his keys. He heard the screams of the women who
worked as bud tenders, he said, and he thought they were all about to
die.
The men took ``everything we had,'' he said, including the shop's
product, money from the register, and money and personal property from
him and other employees.
He believed the men who robbed the dispensary were from the same
gang that had been trying to tax it. As far as he knew, he said, the
owners never reported the robbery or the extortion.
``What are the shops going to do?'' he asked. ``Call the cops, when
it's illegal?''
Appendix
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Questions from Hon. John Garamendi to Joaquin Esquivel, Chair,
California State Water Resources Control Board
Question 1. Chair Esquivel, do you agree that modern, commonsense
water management in drought-prone states like California should rely on
real-time monitoring and adaptive management?
Answer. Yes. We have learned tremendously since 2013, when
California entered the current period of extended drought. Prior to
that time, diversions were not metered or frequently measured, and
diversion data was reported only every three years. We learned that we
cannot manage a system without having a robust and meaningful
accounting for diversions and demands (including municipal,
agricultural, and environmental needs). But at present, we do not have
a real-time system to monitor diversions. There is growing, if not
consensus, recognition that the models and data that we relied upon
during the last century of water development are not suited to an era
of climate change and rapid aridification. The lack of real-time data
has presented challenges in the general administration of California's
water rights system, not only for the State Water Board but for all
water users.
California has taken significant steps to better manage and
understand water use data since the start of the current drought.
Legislation enacted in 2015, during the last drought, now requires
diverters to meter and measure their water use, and importantly, to
report that data to the Board. Additional investments in 2021 of more
than $30 million were allocated to modernize the state's water rights
data management system. Further investments in 2022 will initiate pilot
projects to obtain telemetered diversion data so that we can understand
real-time demands to better respond and adapt as conditions warrant.
These efforts are expensive, but the costs of not taking action are
even greater, and the ongoing costs point towards the need for
sustained and ongoing funding for data and information technology
infrastructure.
Question 2. Chair Esquivel, are you aware of any credible legal
challenge to the 2016 WIIN Act by an outside litigator, specifically
that law's requirements for real-time monitoring and adaptive
management for the coordinated operations of the federal and state
water projects?
Answer. The State Water Board is not aware of litigation
challenging the narrow issue of real-time monitoring and adaptive
management for the coordinated operations of the Central Valley Project
and State Water Project (CVP/SWP). However, the term adaptive
management can be challenging because it means different things to
different people and in the context of the WIIN Act provisions related
to California Water, it is undefined. (Public Law 114-322, sections
4001-4014.) It should also be noted that the State Water Board would
not be a party to litigation challenging the WIIN Act. The U.S.
Department of Justice or applicable federal agencies may be better
positioned to answer such questions.
The State Water Board is aware of more general, ongoing litigation
involving the 2019 biological opinions for the CVP/SWP operations. To
the extent the WIIN Act required the delivery of ``the maximum quantity
of water supplies practicable'' (Sect. 4001, subd (a)) and the use of
``research and adaptive management procedures'' in implementing
biological opinions for smelt and salmon under the federal Endangered
Species Act that ``could result in the availability of additional water
supplies'' (Sect. 4001, subd. (b)(12)), these principles were
incorporated into the reconsultation that resulted in the 2019
biological opinions and 2020 Record of Decision for CVP/SWP operations
that are at issue in the ongoing litigation of California Natural
Resources Agency et al. v. Raimondo and Pacific Coast Federation of
Fisheries Associations et al. v. Raimondo.
Question 3. Chair Esquivel, do you agree that the metric of
unimpaired flow should be just one of many criteria the State Water
Resources Control Board uses in determining the correct application of
environmental laws like the Clean Water Act or similar state
regulations? In other words, do you agree that focusing solely on
unimpaired flows can ignore the other, equally or more important,
environmental conditions in the water body that affect water quality
and endangered species?
Answer. Native species in the Bay-Delta ecosystem are experiencing
an ecological crisis and a large body of scientific information
indicates that increasing flows into and through the Delta will improve
conditions. The importance of adequate flows for the protection of fish
and wildlife cannot be underestimated. For fish and other aquatic life,
flow is habitat and it influences the quality of nearly every other
habitat feature, including temperature, water chemistry, and food
production, such as through floodplain inundation. These habitat
features, in turn, affect the risk of disease and predation,
reproductive success, growth, migration, feeding behavior, and other
ecological factors that determine the viability of native fish.
Unimpaired flow represents the water production of river basins,
unaltered by upstream diversions, storage, or by export or import of
water to or from other watersheds. It differs from natural flow because
it is the flow that occurs at a specific location under the current
configuration of channels, levees, floodplain, wetlands, deforestation,
and urbanization. A flow objective based on unimpaired flows is
intended to restore a specific percent of the flows for the reasonable
protection of fish and wildlife. In 2018, the State Water Board adopted
new flow objectives for the San Joaquin River and its three major
tributaries the Stanislaus, Tuolumne, and Merced rivers. These flow
objectives are expressed as a range from 30 to 50 percent of the
rivers' unimpaired flow with a starting point of 40 percent. In
establishing the new flow objectives, the State Water Board balanced
many factors including the past, present, and probable future
beneficial uses of water (e.g., municipal supply, agricultural supply,
recreation, etc.) as well as economic and other considerations.
The State Water Board acknowledges, however, that increased flow is
just one tool that can be brought to bear to improve ecosystem
conditions. While the State Water Board's regulatory authorities in the
water quality planning context are primarily limited to parameters such
as flow, we have long encouraged watershed stakeholders to come
together to propose Voluntary Agreements that provide a broader suite
of solutions, including flow and non-flow actions such as new and
enhanced habitat that could provide greater ecosystem benefits than
flow alone and potentially do so at a lower water cost to water users.
Therefore, at the same time that the State Water Board adopted
objectives based on unimpaired flows, it included a pathway for
implementing voluntary actions which, depending on the scale of the
non-flow measures, could support a reduction in the unimpaired flows to
as low as 30 percent. This means that under the current Bay-Delta plan
requirements up to 70 percent of San Joaquin River tributary flows can
still be diverted for human use.
The State Water Board's provision of an alternate pathway in its
2018 Bay-Delta Plan update is a reflection of how we have long
encouraged watershed stakeholders to come together to propose Voluntary
Agreements. To this end, the State Water Board has directed its staff
to provide technical and regulatory assistance for the development of
Voluntary Agreements that could be considered by the Board as an
implementation mechanism for a comprehensive update to the Bay-Delta
Plan. We are optimistic about the progress that has been made to craft
Voluntary Agreements and remain committed to evaluating them as part of
our Bay-Delta update process, as these agreements create the best
opportunity to for the Board to consider and incorporate non-flow
actions. In summary, the Board considers multiple factors and
mechanisms, in addition to unimpaired flow, when establishing water
quality requirements and fulfilling its responsibilities under the
Clean Water Act and Porter-Cologne Water Quality Control Act.
Questions from Hon. Chris Pappas to Michael D. Witt, General Counsel,
Passaic Valley Sewerage Commission, Newark, New Jersey, on behalf of
the National Association of Clean Water Agencies
Question 1. Mr. Witt: For the past fifty years, the Clean Water Act
has helped to ensure that all Americans have access to clean and safe
water. Now, communities across the nation are facing growing threats to
clean water access, including aging infrastructure and increased
flooding and droughts. Digital, smart water technologies can help water
managers adapt to these challenges and maintain access to clean and
safe water. Using digital tools, water managers can make better use of
their data to improve asset management strategies, mitigate the impacts
of flooding and drought, and save time and money. For example, the
water sector has identified lack of data on the condition and
functioning of water assets as a key factor that leads to poor resource
prioritization and unexpected crises, problems that can be solved
through digital asset management.
In your experience, how can smart, digital water infrastructure
technologies help communities mitigate the impact of climate change?
Answer. Infrastructure technology is the heart of every wastewater
reclamation facility in the United States. It informs, guides, and in
many instances, governs day-to-day operational decisions. To add
context to the importance of infrastructure technology, the Passaic
Valley Sewerage Commission collects approximately 12,000 data points
from its facilities on an average frequency of almost every 15 seconds.
It is an enormous amount of information to manage, digest, and put into
useable form for facility operators.
With this context in mind, smart digital water infrastructure is an
invaluable partner in modern wastewater operations. Enhanced
digitization, smart technology, and innovative software platforms allow
reclamation facilities to better manage assets and data, track trends,
provide quantitative and qualitative outcomes, and improve operations
in a way that was not previously possible. These key tools are
imperative to ensuring full optimization of clean water utilities and
hardening assets against climate change.
Wet weather events are becoming more extreme and sensors and
applications for real time monitoring are more imperative than ever to
mitigate against these impacts. For example, the use of flow meters and
hydraulic modeling to manage infiltration and inflow in the collection
system are crucial prior to and during storms by helping utilities with
real-time monitoring and increased system awareness. In short, the
finer the control over the facility, the more efficient and optimal its
operations become, resulting in the ability to take in and treat an
increased amount of flow during wet weather events. This, in turn, can
reduce overflows in areas with combined sewer systems and/or reducing
local area flooding caused by surcharged sewer lines.
Technology also plays a major role in helping utilities reduce
their carbon footprint. Sensors and data analysis platforms targeting
energy efficiency and optimization, such as energy management platforms
and asset monitoring devices, can help utilities manage and reduce
their energy use.
Question 2. The Bipartisan Infrastructure Law provided critical
funding to rebuild and modernize our nation's water infrastructure,
including directing the Environmental Protection Agency to accelerate
the identification and deployment of advanced water technologies.
In your opinion, how could the federal government help facilitate
the adoption of smart, digital water technologies?
Answer. Like any industry, the wastewater treatment sector is not
immune to change and the passage of time, and must be prepared for
both. The last two decades in particular have posed a number of rising
challenges, including: the management and optimization of aging
infrastructure; the escalation of energy, capital, operations, and
maintenance costs; the expansion of compliance obligations; the
emergence of PFAS and other contaminants; resource recovery, climate
concerns, and the need to reduce the carbon footprint; and workforce
retention and development difficulties. Combined, these challenges have
placed public clean water utilities at a critical juncture regarding
the affordability and sustainability of their services.
Developments in current technologies have already helped to address
some of these challenges in a cost-effective manner. As these
challenges grow and become more complex however, continued innovations
in digitization and smart technology will be key to fully optimizing
public clean water utility operations and ensuring the ability to
continue meeting our communities' public health and environmental
goals.
The federal government must be an integral partner with states and
local communities in ensuring this happens. Congressional and
administrative policies and resources must be targeted to ensure
greater implementation and use of developing smart wastewater
technologies. This includes dedicating appropriations for programs that
advance technological innovation, establishing an ARPA-H2O style
program, having EPA provide greater clarity and guidance that
innovative technologies are eligible funding uses under the State
Revolving Funds (SRFs), and expanding and prioritizing eligibilities
for technology through the SRFs.
This is an area in which NACWA has taken a strong focus and lead
over the past several years with both its public and private sector
leaders. We look forward to working with Congress and the
Administration on this important matter.
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