[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
             
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     Available online at: https://www.govinfo.gov/committee/house-
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                             transportation
                             
                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \27\ See Gatz; see also generally, Permit Program under CWA Section 
404, https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

     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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
      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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
      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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
                          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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \30\ P.L. 100-4.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
              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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

            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\
---------------------------------------------------------------------------
    \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.''
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    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

                              ----------                              


    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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