[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]


               STAKEHOLDER PERSPECTIVES ON THE IMPACTS 
                OF THE BIDEN ADMINISTRATION'S WATERS  
                OF THE UNITED STATES (WOTUS) RULE

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

                                (118-3)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                    WATER RESOURCES AND ENVIRONMENT

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 8, 2023

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure
             
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
51-661 PDF                   WASHINGTON : 2023                    
          
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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

  Sam Graves, Missouri, Chairman
Rick Larsen, Washington,             Eric A. ``Rick'' Crawford, 
  Ranking Member                     Arkansas
Eleanor Holmes Norton,               Daniel Webster, Florida
  District of Columbia               Thomas Massie, Kentucky
Grace F. Napolitano, California      Scott Perry, Pennsylvania
Steve Cohen, Tennessee               Brian Babin, Texas
John Garamendi, California           Garret Graves, Louisiana
Henry C. ``Hank'' Johnson, Jr.,      Georgiavid Rouzer, North Carolina
Andre Carson, Indiana                Mike Bost, Illinois
Dina Titus, Nevada                   Doug LaMalfa, California
Jared Huffman, California            Bruce Westerman, Arkansas
Julia Brownley, California           Brian J. Mast, Florida
Frederica S. Wilson, Florida         Jenniffer Gonzalez-Colon,
Donald M. Payne, Jr., New Jersey       Puerto Rico
Mark DeSaulnier, California          Pete Stauber, Minnesota
Salud O. Carbajal, California        Tim Burchett, Tennessee
Greg Stanton, Arizona,               Dusty Johnson, South Dakota
  Vice Ranking Member                Jefferson Van Drew, New Jersey,
Colin Z. Allred, Texas                 Vice Chairman
Sharice Davids, Kansas               Troy E. Nehls, Texas
Jesus G. ``Chuy'' Garcia, Illinois   Lance Gooden, Texas
Chris Pappas, New Hampshire          Tracey Mann, Kansas
Seth Moulton, Massachusetts          Burgess Owens, Utah
Jake Auchincloss, Massachusetts      Rudy Yakym III, Indiana
Marilyn Strickland, Washington       Lori Chavez-DeRemer, Oregon
Troy A. Carter, Louisiana            Chuck Edwards, North Carolina
Patrick Ryan, New York               Thomas H. Kean, Jr., New Jersey
Mary Sattler Peltola, Alaska         Anthony D'Esposito, New York
Robert Menendez, New Jersey          Eric Burlison, Missouri
Val T. Hoyle, Oregon                 John James, Michigan
Emilia Strong Sykes, Ohio            Derrick Van Orden, Wisconsin
Hillary J. Scholten, Michigan        Brandon Williams, New York
Valerie P. Foushee, North Carolina   Marcus J. Molinaro, New York
                                     Mike Collins, Georgia
                                     Mike Ezell, Mississippi
                                     John S. Duarte, California
                                     Aaron Bean, Florida

            Subcommittee on Water Resources and Environment

  David Rouzer, North Carolina, 
             Chairman
Grace F. Napolitano, California,     Daniel Webster, Florida
  Ranking Member                     Thomas Massie, Kentucky
John Garamendi, California           Brian Babin, Texas
Emilia Strong Sykes, Ohio,           Mike Bost, Illinois
  Vice Ranking Member                Doug LaMalfa, California
Jared Huffman, California            Bruce Westerman, Arkansas
Frederica S. Wilson, Florida         Brian J. Mast, Florida
Patrick Ryan, New York               Jenniffer Gonzalez-Colon,
Val T. Hoyle, Oregon                   Puerto Rico
Hillary J. Scholten, Michigan        Burgess Owens, Utah
Julia Brownley, California           Chuck Edwards, North Carolina
Mark DeSaulnier, California          Eric Burlison, Missouri
Greg Stanton, Arizona                John James, Michigan
Chris Pappas, New Hampshire          Derrick Van Orden, Wisconsin
Seth Moulton, Massachusetts          Brandon Williams, New York
Troy A. Carter, Louisiana            Mike Collins, Georgia
Eleanor Holmes Norton,               Mike Ezell, Mississippi
  District of Columbia               John S. Duarte, California
Rick Larsen, Washington (Ex Officio) Sam Graves, Missouri (Ex Officio)

                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................   vii

                 STATEMENTS OF MEMBERS OF THE COMMITTEE

Hon. David Rouzer, a Representative in Congress from the State of 
  North Carolina, and Chairman, Subcommittee on Water Resources 
  and Environment, opening statement.............................     1
    Prepared statement...........................................     3
Hon. Grace F. Napolitano, a Representative in Congress from the 
  State of California, and Ranking Member, Subcommittee on Water 
  Resources and Environment, opening statement...................     4
    Prepared statement...........................................     6
Hon. Sam Graves, a Representative in Congress from the State of 
  Missouri, and Chairman, Committee on Transportation and 
  Infrastructure, opening statement..............................     7
Hon. Rick Larsen, a Representative in Congress from the State of 
  Washington, and Ranking Member, Committee on Transportation and 
  Infrastructure, opening statement..............................     8
    Prepared statement...........................................    10

                               WITNESSES

Garrett Hawkins, President, Missouri Farm Bureau, oral statement.    32
    Prepared statement...........................................    33
Alicia Huey, Chairman of the Board, National Association of Home 
  Builders, oral statement.......................................    38
    Prepared statement...........................................    40
Mark Williams, Environmental Manager, Luck Companies, on behalf 
  of the National Stone, Sand & Gravel Association, oral 
  statement......................................................    50
    Prepared statement...........................................    52
Susan Parker Bodine, Partner, Earth & Water Law LLC, oral 
  statement......................................................    56
    Prepared statement...........................................    57
Dave Owen, Harry D. Sunderland Professor of Law and Faculty 
  Director of Scholarly Publications, University of California 
  College of Law, San Francisco, oral statement..................    72
    Prepared statement...........................................    74

                       SUBMISSIONS FOR THE RECORD

Submissions for the Record by Hon. David Rouzer:
    Letter of February 7, 2023, to Hon. David Rouzer, Chairman, 
      Subcommittee on Water Resources and Environment, from 
      Kristen Swearingen, Vice President, Legislative and 
      Political Affairs, Associated Builders and Contractors.....    11
    Statement of the American Road and Transportation Builders 
      Association................................................    12
    Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and 
      Hon. Rick Larsen, Ranking Member, Committee on 
      Transportation and Infrastructure, and Hon. David Rouzer, 
      Chairman, and Hon. Grace F. Napolitano, Ranking Member, 
      Subcommittee on Water Resources and Environment, from Cindy 
      V. Chetti, Senior Vice President, Government Affairs, 
      National Multifamily Housing Council, and Gregory S. Brown, 
      Senior Vice President, Government Affairs, National 
      Apartment Association......................................    14
    Letter of February 8, 2023, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from Nile Elam, Senior 
      Director, Energy and Resources Policy, National Association 
      of Manufacturers...........................................    16
    Letter of February 8, 2023, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from Kevin Kuhlman, 
      Vice President, Federal Government Relations, National 
      Federation of Independent Business Inc.....................    17
    Letter of February 8, 2023, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from the National 
      Mining Association.........................................    18
    Letter of January 30, 2023, to President Joseph R. Biden, 
      Jr., from the Republican Governors Association.............    20
Submissions for the Record by Hon. Grace F. Napolitano:
    Comment, ``State Protection of Nonfederal Waters: Turbidity 
      Continues,'' James McElfish, Environmental Law Reporter, 
      September 2022.............................................     5
    Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and 
      Hon. Rick Larsen, Ranking Member, Committee on 
      Transportation and Infrastructure, from the Clean Water for 
      All Coalition..............................................    21
    Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and 
      Hon. Rick Larsen, Ranking Member, Committee on 
      Transportation and Infrastructure, and Hon. David Rouzer, 
      Chairman, and Hon. Grace F. Napolitano, Ranking Member, 
      Subcommittee on Water Resources and Environment, from Kate 
      Miller, Director of Government Affairs, Trout Unlimited....    23
    Letter of February 7, 2023, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from Douglas J. Austen, 
      Ph.D., Executive Director, American Fisheries Society......    27
    Letter of February 7, 2022, to Ms. Damaris Christensen, 
      Oceans, Wetlands and Communities Division, Office of Water, 
      Environmental Protection Agency, and Ms. Stacey Jensen, 
      Office of the Assistant Secretary of the Army for Civil 
      Works, Department of the Army, from Jennifer Harriger, 
      Manager, Environmental Planning Section, Metropolitan Water 
      District of Southern California............................    83
    Letter of February 7, 2022, to the U.S. Environmental 
      Protection Agency and U.S. Army Corps of Engineers from 
      Attorneys General of California, New York, Connecticut, 
      Illinois, Maine, Maryland, Massachusetts, Michigan, New 
      Mexico, North Carolina, Oregon, Vermont, Washington, 
      Wisconsin, the District of Columbia, the City of New York, 
      and the California State Water Resources Control Board.....    88
    Map Showing Percentage of Intermittent Stream Length by 
      Watershed..................................................    89
    Letter of February 17, 2023, to Hon. Sam Graves, Chairman, 
      and Hon. Rick Larsen, Ranking Member, Committee on 
      Transportation and Infrastructure, and Hon. David Rouzer, 
      Chairman, and Hon. Grace F. Napolitano, Ranking Member, 
      Subcommittee on Water Resources and Environment, from the 
      American Sportfishing Association et al....................   121

                                APPENDIX

Question from Hon. Greg Stanton to Garrett Hawkins, President, 
  Missouri Farm Bureau...........................................   123
Question from Hon. Greg Stanton to Alicia Huey, Chairman of the 
  Board, National Association of Home Builders...................   124
Questions to Dave Owen, Harry D. Sunderland Professor of Law and 
    Faculty Director of Scholarly Publications, University of 
    California College of Law, San Francisco, from:
    Hon. Greg Stanton............................................   126
    Hon. Troy A. Carter..........................................   128

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                            February 3, 2023

    SUMMARY OF SUBJECT MATTER

    TO:      LMembers, Subcommittee on Water Resources and 
Environment
    FROM:  LStaff, Subcommittee on Water Resources and 
Environment
    RE:      LSubcommittee Hearing on ``Stakeholder 
Perspectives on the Impacts of the Biden Administration's 
Waters of the United States (WOTUS) Rule''
_______________________________________________________________________


                               I. PURPOSE

    The Subcommittee on Water Resources and Environment of the 
Committee on Transportation and Infrastructure will meet on 
Wednesday, February 8, 2023, at 10:00 a.m. ET in Room 2167 of 
the Rayburn House Office Building to receive testimony on 
``Stakeholder Perspectives on the Impacts of the Biden 
Administration's Waters of the United States (WOTUS) Rule.'' At 
the hearing Members will receive testimony from representatives 
from Earth & Water Law LLC, the Missouri Farm Bureau, National 
Stone, Sand & Gravel Association, National Association of Home 
Builders, and the UC College of the Law, San Francisco. The 
hearing will examine the rule from the Environmental Protection 
Agency (EPA) and United States Army Corps of Engineers (Corps) 
redefining of the term ``waters of the United States,'' under 
the Clean Water Act, and the regulatory impact the rule may 
have on interested stakeholders.

                             II. BACKGROUND

``WATERS OF THE UNITED STATES'' IN THE CLEAN WATER ACT

    Congress enacted the 1972 amendments to the Federal Water 
Pollution Control Act, commonly referred to as the Clean Water 
Act (CWA), with the goal to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters.'' \1\ The CWA protects ``navigable waters,'' which is 
defined in the CWA as the ``waters of the United States, 
including the territorial seas.'' \2\
---------------------------------------------------------------------------
    \1\ CWA, Pub. L. 92-500, 86 Stat. 816.
    \2\ Id. at Sec. 502(7).
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    However, the CWA does not further define the term ``waters 
of the United States'' (WOTUS), leaving it up to EPA and the 
Corps to define which waters are subject to Federal regulation 
under the CWA. Since the CWA grants authority to EPA and the 
Corps to implement the Act, EPA and the Corps have promulgated 
several sets of rules interpreting the agencies' jurisdiction 
over WOTUS and the corresponding scope of CWA authority.
    The definition of WOTUS governs the application of CWA 
programs--including tribal and state water quality 
certification programs, pollutant discharge permits, and oil 
spill prevention and planning programs. For example, Section 
303, which requires states to develop water quality standards 
for their waters such as Total Maximum Daily Load (TMDL), 
Section 311, which prohibits the discharge and mandates 
reporting of oil and other hazardous substances into WOTUS, and 
Section 401, which outlines state approval for Federal permits 
that would affect a WOTUS, are all dependent on the definition 
of WOTUS.\3\
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    \3\ Id. at Sec. Sec.  303, 311, 401.
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    In addition, the CWA prohibits the discharge of any 
pollutant by any person, unless in compliance with one of the 
enumerated permitting provisions in the Act. The two permitting 
authorities in the CWA are Section 402 (the National Pollutant 
Discharge Elimination System, or ``NPDES'') for discharges of 
pollutants from point sources, and Section 404, for discharges 
of dredged or fill material.\4\ Both Sections 402 and 404 
govern discharges into ``navigable waters,'' and thus are 
directly dependent on the definition of WOTUS.
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    \4\ Id. at Sec. Sec. 402(b) and 404.
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SUPREME COURT CASES

    There has been a substantial amount of litigation in the 
Federal courts on the scope of CWA jurisdiction over the years, 
including multiple United States Supreme Court cases.
    In 1985, the Supreme Court took up United States v. 
Riverside Bayview Homes, Inc. (Riverside Bayview).\5\ The Court 
unanimously upheld the Corps' jurisdiction over wetlands 
adjacent to jurisdictional waters and held that such wetlands 
were ``waters of the United States'' under the CWA.\6\ 
Following Riverside Bayview, EPA and the Corps promulgated 
regulations in 1986 and 1988, which remained in effect for much 
of the past several decades.\7\
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    \5\ United States v. Riverside Bayview Homes, 474 U.S. 121 (1985).
    \6\ See id.
    \7\ Final Rule for Regulatory Programs of the Corps of Engineers, 
51 Fed. Reg. 41206 (November 13, 1986); Clean Water Act Section 404 
Program Definitions and Permit Exemptions, Section 404 State Regulation 
Programs, 53 Fed. Reg. 20764 (June 6, 1988).
---------------------------------------------------------------------------
    In 2001, the Court ruled in Solid Waste Agency of Northern 
Cook County v. Army Corps of Engineers (``SWANCC''), evaluating 
whether CWA jurisdiction included an abandoned sand and gravel 
pit which had become a habitat for migratory birds.\8\ A 5-4 
decision rejected the Corps' claim that CWA jurisdiction 
extended over isolated waters purely based on their usage by 
migratory birds, but did not affect the agencies' underlying 
regulations defining WOTUS.\9\
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    \8\ Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. 
Army Corps of Engineers, 531 U.S. 159 (2001).
    \9\ See generally Stephen P. Mulligan, Evolution of the meaning of 
``waters of the United States'' in the Clean Water Act, Cong. Research 
Service (R44585), updated March 5, 2019 [Hereinafter CRS Report R44585] 
available at https://www.crs.gov/reports/pdf/R44585/R44585.pdf.
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    In 2006, the Court issued a 4-1-4 opinion in Rapanos v. 
United States (Rapanos) that did not produce a clear, legal 
standard on determining jurisdiction under the CWA.\10\ The 
Rapanos decision produced three distinct opinions on the 
appropriate scope of Federal authorities under the CWA. Justice 
Scalia's plurality opinion provided a ``relatively permanent/
flowing waters'' test with ``continuous surface connection.'' 
\11\ Writing alone, Justice Kennedy proposed a ``significant 
nexus'' test for WOTUS, concluding that a case-by-case basis 
for determining navigable waters was appropriate.\12\ Justice 
Stevens' dissenting opinion advocated for maintenance of 
existing EPA and Corps authority over waters and wetlands.\13\
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    \10\ Rapanos v. United States, 547 U.S. 715 (2006).
    \11\ Id. at 739 and 742.
    \12\ Id. at 782 (Kennedy, J., concurring).
    \13\ See id. at 788 (Stevens, J., dissenting).
---------------------------------------------------------------------------
    Following the SWANCC and Rapanos decisions, EPA and the 
Corps issued several guidance documents interpreting how the 
agencies would implement the Supreme Court decisions. Under 
2008 guidance, CWA jurisdiction over navigable waters would be 
asserted if such waters meet either the Scalia (``relatively 
permanent water'') or Kennedy (``significant nexus'') 
tests.\14\
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    \14\ EPA & Dep't of the Army, Revised Mem. Clean Water Act 
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. 
United States and Carabell v. United States (Dec. 2, 2008) available at 
https://www.epa.gov/sites/default/files/2016-02/documents/
cwa_jurisdiction_following_rapanos120208.pdf.
---------------------------------------------------------------------------
    In January 2022, the Supreme Court announced it would hear 
arguments in a case that could also affect the definition of 
WOTUS: Sackett v. EPA (Sackett).\15\ The Sackett case raises 
the question of whether certain wetlands are WOTUS, and thus 
subject to CWA jurisdiction, and could be resolved with a 
narrow ruling based solely on the facts of the case.\16\ 
However, Sackett may also be an opportunity for the Supreme 
Court to rule broadly on what the proper test is for 
determining WOTUS.\17\
---------------------------------------------------------------------------
    \15\ Sackett v. EPA, cert. granted, (21-454) 142 S. Ct. 896 (Jan. 
24, 2022).
    \16\ Ariel Wittenberg & Hannah Northey, Can EPA's Clean Water Rule 
survive the courts, E&E News, Jan. 3, 2023, available at https://
www.eenews.net/articles/can-epas-clean-water-act-rule-survive-the-
courts [Hereinafter Wittenberg & Northey].
    \17\ Id.
---------------------------------------------------------------------------
    The petitioners in the Sackett case own a parcel of land in 
Idaho which sits across the street from an area of wetlands 
that drains into an unnamed tributary of a creek, which in turn 
flows into Priest Lake.\18\ The Sacketts' efforts to build on 
their parcel of land, around thirty feet from the area of 
wetlands, has been the subject of a now decades-long dispute 
with EPA and the Corps regarding CWA jurisdiction and 
regulatory process.\19\ The petitioners in the case have urged 
the Supreme Court to review the Rapanos case and adopt Justice 
Scalia's plurality opinion.\20\
---------------------------------------------------------------------------
    \18\ Kate R. Bowers, Supreme Court revisits scope of ``waters of 
the United States'' (WOTUS) under the Clean Water Act, Cong. Research 
Service Legal Sidebar (LSB10707), March 11, 2022, available at https://
www.crs.gov/reports/pdf/LSB10707/LSB10707.pdf.
    \19\ Id.
    \20\ Transcript of Oral Argument, Sackett v. EPA (21-454), 
available at https://www.supremecourt.gov/oral_arguments/
argument_transcripts/2022/21-454_g31h.pdf.
---------------------------------------------------------------------------
    The Supreme Court heard oral arguments in the Sackett case 
on October 3, 2022.\21\ It is currently unclear when a decision 
in the case could be released. The implications of the Sackett 
decision on the current WOTUS definition and the CWA will 
likely depend on the scope of the Supreme Court's ruling.\22\ 
For example, if the majority of the Court rules against the 
``significant nexus'' test laid out by Justice Kennedy in 
Rapanos, it could require a significant alteration of the Biden 
Administration's most recent WOTUS definition.\23\ Similarly, 
the Court could leave the Biden WOTUS definition in place and 
issue a narrow opinion based on the EPA's application of 
adjacency and the specific facts of the Sackett case.\24\
---------------------------------------------------------------------------
    \21\ Id.
    \22\ See Wittenberg & Northey, supra note 16.
    \23\ Id.
    \24\ Id.
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OBAMA-ERA WOTUS RULE

    In 2015, the Obama Administration published in the Federal 
Register regulatory changes to the definition of WOTUS that 
allowed the Corps and EPA to utilize both the ``relatively 
permanent waters'' or ``significant nexus'' concepts.\25\ This 
rule, known as the Clean Water Rule, redefined WOTUS in the 
agencies' regulations for the first time since the 1980s.
---------------------------------------------------------------------------
    \25\ Clean Water Rule: Definition of ``waters of the United 
States;'' Final Rule, 80 Fed. Reg. 37054 (June 29, 2015).
---------------------------------------------------------------------------
    The 2015 Clean Water Rule maintained some aspects of the 
2008 guidance, including the three-tiered jurisdictional 
analysis of waters being categorically jurisdictional, 
jurisdictional on a case-by-case basis subject to the 
``significant nexus'' test, or categorically excluded from 
being a WOTUS.\26\
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    \26\ See id.
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    The Clean Water Rule also incorporated new features not 
found in the 2008 guidance, including definitions and criteria 
which established when waters fell into each of the three 
tiers, such as ``adjacent,'' ``neighboring,'' ``floodplain,'' 
``tributary,'' ``wetlands'' and ``significant nexus.'' \27\ 
Some of these changes from the 2008 guidance expanded waters 
that could be classified as categorically WOTUS (rather than 
demonstrating CWA jurisdiction under a significant nexus 
analysis), and subject to CWA jurisdiction and regulation.\28\
---------------------------------------------------------------------------
    \27\ Id.
    \28\ Laura Gatz & Kate R. Bowers, Redefining waters of the United 
States (WOTUS): Recent developments, Cong. Research Service (R46927), 
updated July 8, 2022 [Hereinafter CRS Report R46927], available at 
https://www.crs.gov/reports/pdf/R46927/R46927.pdf.
---------------------------------------------------------------------------
    While the Corps and EPA contended that their primary intent 
in the 2015 Clean Water Rule was simply to clarify regulatory 
jurisdiction, stakeholder reaction to the rule was mixed. Some 
viewed the rule as an expansion of CWA jurisdiction, while 
others argued that it excluded too many waters from Federal 
jurisdiction.\29\ Following the Clean Water Rule's publishing, 
many states, industry stakeholders, and several environmental 
groups challenged the legality of the rule in courts across the 
country, continuing the mire of litigation that plagued the 
definition of WOTUS over the last two decades.\30\
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    \29\ See e.g., Carolina Bolado, Fla., others sue EPA, Corps, over 
Clean Water Act expansion, Law360 (June 30, 2015) available at https://
www.law360.com/articles/674120/fla-others-sue-epa-corps-over-clean-
water-act-expansion; Press Release, Center for Biological Diversity, 
EPA and Army Corps release weak Clean Water Rule (May 27, 2015) 
available at https://www.biologicaldiversity.org/news/press_releases/
2015/clean-water-rule_05-272015.html.
    \30\ CRS Report R46927, supra note 28.
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TRUMP-ERA WOTUS RULE

    Following the 2015 Clean Water Rule taking effect, the 
Trump Administration, favoring a WOTUS definition more 
consistent with the Scalia opinion in Rapanos, took steps to 
amend and rescind the Obama-Era rule.\31\ In 2017, President 
Trump signed Executive Order 13778, ``Restoring the Rule of 
Law, Federalism, and Economic Growth by Reviewing the `Waters 
of the United States' Rule,'' which directed EPA and the Corps 
to review the 2015 Clean Water Rule and consider proposing a 
new rule to rescind or revise that rule.\32\
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    \31\ See e.g., Press Release, EPA, U.S. Army repeal 2015 Rule 
defining ``waters of the United States'' ending regulatory patchwork 
(Sept. 12, 2019) available at https://www.epa.gov/newsreleases/epa-us-
army-repeal-2015-rule-defining-waters-united-states-ending-regulatory-
patchwork.
    \32\ Exec. Order No. 13778, (February 28, 2017), available at 
https://www.govinfo.gov/content/pkg/DCPD-201700147/pdf/DCPD-
201700147.pdf.
---------------------------------------------------------------------------
    EPA and the Corps responded to the Executive Order in two 
steps. First, the agencies rescinded the Clean Water Rule, and 
recodified the 2008 guidance (and its use of either Rapanos-
based test for WOTUS) in effect prior to the 2015 Rule.\33\ 
Second, in 2020, EPA and the Corps published in the Federal 
Register the Navigable Waters Protection Rule, which redefined 
WOTUS.\34\
---------------------------------------------------------------------------
    \33\ Definition of ``waters of the United States''--Recodification 
of Pre-Existing Rules, 84 Fed. Reg. 56626 (Oct. 22, 2019).
    \34\ The Navigable Waters Protection Rule: Definition of ``Waters 
of the United States,'' 85 Fed. Reg. 22250 (April 21, 2020) 
[Hereinafter Navigable Waters Protection Rule].
---------------------------------------------------------------------------
    Overall, the Navigable Waters Protection Rule narrowed the 
scope of waters and wetlands that were considered WOTUS and 
therefore fell under Federal jurisdiction compared to both the 
2015 Clean Water Rule and the pre-2015 rules.\35\ The Navigable 
Waters Protection Rule was structured to focus the WOTUS 
definition primarily on relatively permanent bodies of water 
that provide surface flow to navigable waters or the 
territorial seas in a typical year.\36\ The 2020 Rule also 
moved away from the ``significant nexus'' test. The Trump-Era 
Rule maintained wetlands and adjacent waters as WOTUS but 
focused the definitions of ``wetlands'' and ``adjacent waters'' 
as compared to prior regulations.\37\
---------------------------------------------------------------------------
    \35\ CRS Report R46927, supra note 28 at 7.
    \36\ Supra note 34 at 22273-22274.
    \37\ Id. at 22251, 22273.
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    As with the 2015 Clean Water Rule, the 2020 Navigable 
Waters Protection Rule was met with mixed reactions. While some 
praised the Navigable Waters Protection Rule as limiting 
government overreach and clarifying uncertainty of WOTUS under 
the CWA, others criticized the Rule for potential negative 
effects on water quality and resulting in regulatory 
inconsistency among state programs.\38\ Again, the 2020 Rule 
was met with a myriad of legal challenges and litigation in the 
courts, similar to the 2015 Rule.\39\
---------------------------------------------------------------------------
    \38\ See e.g. Letter from Gregory Ugalde, Chairman of the Board, 
Nat'l Ass'n of Homebuilders, to EPA Administrator Andrew Wheeler (March 
2020) available at https://www.nahb.org/-/media/NAHB/advocacy/docs/
industry-issues/waters-of-the-us/wotus-analysis-2020.pdf; Press 
Release, Waterkeeper Alliance, ``Navigable Water Protection Rule'' 
guarantees widespread pollution of our Nation's waters, (Feb. 13, 
2020), available at https://waterkeeper.org/news/navigable-water-
protection-rule-guarantees-widespread-pollution-of-our-nations-waters.
    \39\ See CRS Report R44585, supra note 9.
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      III. WATERS OF THE UNITED STATES--BIDEN ADMINISTRATION RULE

    Continuing the back-and-forth nature of WOTUS definitions 
under various Presidential Administrations, in 2021, the Biden 
Administration announced that it would be repealing the Trump 
Administration's Navigable Waters Protection Rule.\40\ To begin 
with, shortly after taking office in January 2021, President 
Biden signed an Executive Order revoking President Trump's 
Executive Order directing EPA and the Corps to revise and 
rescind the Clean Water Rule.\41\ In addition, EPA sent a 
letter to the U.S. Department of Justice (DOJ) in which EPA 
requested DOJ seek stays to legal challenges to the Navigable 
Waters Protection Rule, while EPA reviewed the Rule.\42\
---------------------------------------------------------------------------
    \40\ Press Release, White House, Fact Sheet: List of Agency Actions 
for Review, (Jan. 20, 2021) available at https://www.whitehouse.gov/
briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-
actions-for-review.
    \41\ Exec. Order No. 13990, (Jan. 20, 2021), available at https://
www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01765.pdf.
    \42\ Letter from Melissa Hoffer, Acting General Counsel, EPA, to 
Jean E. Williams & Bruce S. Gelber, Environmental and Natural Resources 
Division, DOJ, (Jan. 21, 2021).
---------------------------------------------------------------------------
    In June of 2021, EPA and the Corps officially announced 
their intent to revise the WOTUS definition.\43\ Following a 
rulemaking process intended to return the regulatory landscape 
to pre-2015 Clean Water Rule implementation and gauge 
stakeholder perspectives, the agencies issued a proposed Rule 
to change the definition of WOTUS in December 2021.\44\
---------------------------------------------------------------------------
    \43\ Press Release, EPA, 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.
    \44\ Revised definition of ``waters of the United States'' Proposed 
Rule, 86 Fed. Reg. 69372 (Dec. 7, 2021).
---------------------------------------------------------------------------
    On December 30, 2022, EPA and the Corps released their 
final ``Revised Definition of the `Waters of the United States' 
'' Rule, which is scheduled to go into effect on March 20, 
2023.\45\ The 2022 WOTUS definition is based largely upon the 
pre-2015 regulations, while again authorizing CWA jurisdiction 
under either the ``relatively permanent waters'' or 
``significant nexus'' test concepts.\46\
---------------------------------------------------------------------------
    \45\ Revised definition of ``waters of the United States'' Final 
Rule, 88 Fed Reg. 3004 (Jan. 18, 2023).
    \46\ Id.
---------------------------------------------------------------------------
    Once more, initial public feedback to the latest definition 
has been mixed. Some stakeholders have lauded it for returning 
to a WOTUS definition viewed as more consistent with 
Congressional intent, as outlined in the goals of the CWA.\47\ 
However, others have been critical of the definition for 
possibly adding uncertainty to CWA regulatory processes and for 
Federal overreach beyond Congressional intent.\48\
---------------------------------------------------------------------------
    \47\ See Press Release, EarthJustice, EPA Finalizes Rule Protecting 
`Waters of the United States', (Dec. 30, 2022) available at https://
earthjustice.org/news/press/2022/epa-finalizes-rule-for-protecting-
waters-of-the-united-states.
    \48\ See Press Release, American Farm Bureau Federation, EPA wrong 
about New WOTUS Rule, (Jan. 4, 2023) available at https://www.fb.org/
viewpoints/epa-wrong-about-new-wotus-rule.
---------------------------------------------------------------------------

                             IV. WITNESSES

     LMr. Garrett Hawkins, President, Missouri Farm 
Bureau
     LMs. Alicia Huey, Chairman, National Association 
of Home Builders
     LMr. Mark Williams, Environmental Manager, Luck 
Companies, on behalf of National Stone, Sand & Gravel 
Association
     LMs. Susan Parker Bodine, Partner, Earth & Water 
Law LLC
     LMr. Dave Owen, Professor of Law and Faculty 
Director of Scholarly Publications, UC College of the Law, San 
Francisco

 
 STAKEHOLDER PERSPECTIVES ON THE IMPACTS OF THE BIDEN ADMINISTRATION'S 
                WATERS OF THE UNITED STATES (WOTUS) RULE

                              ----------                              


                      WEDNESDAY, FEBRUARY 8, 2023

                  House of Representatives,
   Subcommittee on Water Resources and Environment,
            Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:01 a.m., in 
room 2167 Rayburn House Office Building, Hon. David Rouzer 
(Chairman of the subcommittee) presiding.
    Members present: Mr. Rouzer, Mr. Graves of Missouri, Mr. 
Webster of Florida, Mr. Massie, Dr. Babin, Mr. Bost, Mr. 
LaMalfa, Mrs. Gonzalez-Colon, Mr. Owens, Mr. Burlison, Mr. 
James, Mr. Van Orden, Mr. Williams of New York, Mr. Collins, 
Mr. Ezell, Mr. Duarte, Mrs. Napolitano, Mr. Larsen of 
Washington, Mr. Garamendi, Mrs. Sykes, Mr. Huffman, Mr. Ryan, 
Ms. Hoyle of Oregon, Ms. Scholten, Ms. Brownley, Mr. 
DeSaulnier, Mr. Stanton, Mr. Carter of Louisiana, and Ms. 
Norton.
    Mr. Rouzer. The Subcommittee on Water Resources and 
Environment will come to order.
    I ask unanimous consent that the chairman 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.
    Without objection, so ordered.
    I now recognize myself for the purposes of an opening 
statement for 5 minutes.

   OPENING STATEMENT OF HON. DAVID ROUZER OF NORTH CAROLINA, 
   CHAIRMAN, SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

    Mr. Rouzer. For more than a half century, the Clean Water 
Act has functioned to improve the quality of our Nation's 
rivers, lakes, and streams, and we should be proud of what we 
have done and acknowledge its success in protecting waters all 
around the country.
    However, sweeping legislation like the Clean Water Act, 
while certainly beneficial, can lead to bureaucratic overreach 
and regulatory headaches that often don't make sense to 
regulated communities.
    Regulations of any type should be simple and easy to 
follow. They should carry out the intent of the law in a clear 
and transparent manner, making them easily enforced just by 
their mere simplicity. There should be no subjectivity or 
wiggle room for any bureaucrat or bureaucrats to substitute 
their own biases.
    Unfortunately, that is not the case here. As I have said 
before, there is no greater example of bureaucratic overreach 
under the Clean Water Act than the regulatory nightmare of 
complying with and understanding the definition of a ``water of 
the United States,'' or WOTUS, as we call it.
    For the purposes of what the Clean Water Act covers, this 
definition is obviously essential and crucial. It is used for 
determining a number of applications under the law, including 
State and Tribal water quality certification programs, 
pollutant discharge permits, and oilspill prevention and 
planning programs.
    Importantly, this definition is used for determining who 
must obtain a Clean Water Act section 404 ``dredge and fill'' 
permit, which is well known for being a costly and time-
consuming process, and at times simply is used as a roadblock 
to stop projects that some don't like, never mind the merits.
    I think we will hear a lot about these permits today, as 
they can require mitigation, getting into hundreds of thousands 
of dollars for everyday activities people undertake to improve 
their own private property. If they take an action modifying a 
water and later find the area in question indeed was a WOTUS, 
they can face staggering fines and even jail time.
    The WOTUS question has been debated for decades in court, 
and varying Presidential administrations have issued regulatory 
definitions of WOTUS that are quite expansive and subjective, 
which was most definitely the case with the 2015 Obama EPA 
WOTUS rule.
    So, I was heartened in 2020 when the Trump administration 
released the Navigable Waters Protection Rule, which finally 
brought some clarity and predictability to the nagging question 
of what a WOTUS should be. The Trump rule balanced State 
jurisdiction with Federal responsibilities I thought quite 
well.
    As such, I was concerned when the Biden administration 
released its final version of a new WOTUS definition, notably, 
on the Friday before New Year's Eve, in the thick of the hustle 
and bustle of the holidays. Imagine that.
    This new definition once again places unnecessary burdens 
on the communities, farmers, businesses, and industries who 
rely on clean water and clarity of the law.
    For example, in areas like North Carolina's Seventh 
Congressional District, which I represent, storms can be 
frequent. Water often lingers in areas that shouldn't be 
classified as wetlands. This inconsistency of the law's 
interpretation and the ever-changing status of the weather 
promises years of headaches and legal wrangling for North 
Carolinians and Americans across the board.
    Early last year, the Supreme Court announced it would hear 
a case on the definition of WOTUS, which highlights the 
enormous impacts these rulemakings have on citizens across the 
country. In addition to the content of the Biden 
administration's WOTUS rule itself, I am particularly 
disappointed they forced it on the public before the Supreme 
Court's forthcoming decision.
    This action irresponsibly risks taxpayer resources and 
everyone's time, as the Supreme Court could very well send the 
administration back to the drawing board on a WOTUS definition, 
ultimately creating even more confusion and uncertainty. It 
would be common sense to pause and wait to see what the Supreme 
Court decides before jamming this through now.
    It is for this reason, along with those I mentioned 
previously, that Chairman Graves and I are leading, along with 
more than 150 of my Republican colleagues, a Congressional 
Review Act resolution that would void this ill-advised 
rulemaking. We should not have to take this step, as the Biden 
administration did not have to take this action. However, this 
is the situation we find ourselves in, and I am confident the 
House will pass the resolution.
    I am looking forward to hearing from our panel today about 
how this administration's actions will impact various sectors 
of the economy and our constituents.
    [Mr. Rouzer's prepared statement follows:]

                                 
 Prepared Statement of Hon. David Rouzer, a Representative in Congress 
 from the State of North Carolina, and Chairman, Subcommittee on Water 
                       Resources and Environment
    For more than half a century, the Clean Water Act has functioned to 
improve the quality of our Nation's rivers, lakes, and streams. We 
should be proud of what we have done and acknowledge its success in 
protecting waters all around the country.
    However, sweeping legislation like the Clean Water Act--while 
certainly beneficial--can lead to bureaucratic overreach and regulatory 
headaches that often don't make sense to regulated communities. 
Regulations of any type should be simple and easy to follow. They 
should carry out the intent of the law in a clear and transparent 
manner, making them easily enforced by their mere simplicity. There 
should be no subjectivity or wiggle room for any bureaucrat or 
bureaucrats to substitute their own biases.
    That's not the case here, unfortunately. As I've said before, 
there's no greater example of bureaucratic 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.'' For 
the purposes of what the Clean Water Act covers, this definition is 
crucial. It is used for determining a number of applications under the 
law, including state and tribal water quality certification programs, 
pollutant discharge permits, and oil spill prevention and planning 
programs.
    Importantly, this definition is used for determining who must 
obtain a Clean Water Act Section 404 ``dredge and fill'' permit, which 
is well-known for being a costly and time-consuming process, and at 
times simply used as a roadblock to stop projects that some don't 
like--never mind the merits. I think we'll hear a lot about these 
permits today, as they can require mitigation--getting into hundreds of 
thousands of dollars for everyday activities people undertake to 
improve their own private property. If they take an action modifying a 
water, and later find the area in question indeed was a WOTUS, they can 
face staggering fines and even jail time.
    The WOTUS question has been debated for decades in court, and 
varying presidential administrations have issued regulatory definitions 
of WOTUS that are quite expansive--and subjective--which was most 
definitely the case with the 2015 Obama EPA WOTUS Rule.
    I was heartened back in 2020, when the Trump Administration 
released the Navigable Waters Protection Rule, which finally brought 
clarity and predictability to the nagging question of what a WOTUS 
should be. The Trump rule balanced state jurisdiction with federal 
responsibilities. As such, I was quite concerned when the Biden 
Administration released its final version of a new WOTUS definition, 
notably, on the Friday before New Year's Eve, in the thick of the 
hustle and bustle of the holidays. This new definition, once again, 
places unnecessary burdens on the communities, farmers, businesses, and 
industries who rely on clean water and clarity of the law.
    For example, in areas like North Carolina's Seventh District, where 
storms can be frequent, water often lingers in areas that shouldn't be 
classified as wetlands. This inconsistency of the law's interpretation 
and the ever-changing status of the weather promises years of headaches 
and legal wrangling for North Carolinians and Americans.
    Early last year, the Supreme Court announced it would hear a case 
on the definition of WOTUS, which highlights the enormous impacts these 
rulemakings have on citizens across the country. In addition to the 
content of the Biden Administration's WOTUS rule itself, I am 
particularly disappointed they forced it on the public before the 
Supreme Court's forthcoming decision. This decision irresponsibly risks 
taxpayer resources and everyone's time, as the Supreme Court could very 
well send the administration back to the drawing board on a WOTUS 
definition--ultimately creating even more confusion and uncertainty. It 
would be common sense to pause and wait to see what the Supreme Court 
decides before jamming this through now.
    It is for this reason, along with those I mentioned previously, 
that Chairman Graves and I are leading, along with more than 150 of my 
Republican colleagues, a Congressional Review Act resolution that would 
void this ill-advised rulemaking. We should not have to take this step, 
as the Biden Administration did not have to take this action. However, 
this is the situation we find ourselves in, and I am confident the 
House will pass the resolution.
    I'm looking forward to hearing from our panel today about how the 
Biden Administration's actions will impact various sectors of the 
economy and our constituents.

    Mr. Rouzer. I now recognize my dear friend, Ranking Member 
Napolitano, for 5 minutes for an opening statement.

 OPENING STATEMENT OF HON. GRACE F. NAPOLITANO OF CALIFORNIA, 
RANKING MEMBER, SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

    Mrs. Napolitano. Thank you, my friend, Mr. Chairman, and 
congratulations on your new role leading the Subcommittee on 
Water Resources and Environment. I am excited to continue 
working with you to provide flood control, water quality 
protection, environmental restoration, and navigation for all 
our local communities across the country.
    This subcommittee was extremely successful last Congress in 
addressing the bipartisan needs of the Nation. From enactment 
of our fifth consecutive and bipartisan WRDA bill--thank you--
to the first reauthorization of the Clean Water SRF since its 
inception, to addressing the individual needs of unique 
watersheds throughout the country on a bipartisan basis, this 
subcommittee addressed our critical water infrastructure needs 
while also protecting our environment for future generations. 
We look forward to a sixth bipartisan WRDA bill this Congress.
    Clean water was not always a partisan issue. In 1972, the 
House voted to enact the Clean Water Act over the veto of 
former President Nixon by a 10-to-1 margin, and no issue has 
more support among American families than the protection of our 
Nation's waters.
    The history of water pollution protection in this country, 
the law, and science require a comprehensive approach to 
protecting our rivers, streams, and wetlands. Yet, former 
President Trump's ``dirty water rule'' will return us to those 
days when the Great Lakes were declared dead and some rivers 
literally caught fire.
    There should be a strong partnership between the U.S. Army 
Corps of Engineers, the U.S. Environmental Protection Agency, 
and our States, for each entity plays a responsible role in 
ensuring a level playing field of clean water amongst upstream 
and downstream States. Yet, our limited experience under the 
``dirty water rule'' showed the exact opposite.
    To demonstrate, I ask unanimous consent that a summary of 
State legal constraints on protecting waters not covered by the 
Clean Water Act prepared by the Environmental Law Institute be 
made part of today's hearing record.
    Mr. Rouzer. Without objection.
    [The information follows:]

                                 
      Comment, ``State Protection of Nonfederal Waters: Turbidity 
  Continues,'' James McElfish, Environmental Law Reporter, September 
       2022, Submitted for the Record by Hon. Grace F. Napolitano
    The 14-page comment is retained in committee files and is available 
online at https://www.eli.org/sites/default/files/files-pdf/
52.10679.pdf.

    Mrs. Napolitano. Thank you, sir.
    Mr. Chairman, the Clean Water Act ensures our cities, our 
businesses, and our farmers have sufficient, safe, and 
sustainable supplies of water to meet quality-of-life needs, 
our economic and agriculture needs, and our day-to-day 
survival, especially in arid regions of the country such as the 
ones that I represent in southern California.
    The Trump ``dirty water rule'' eliminated Federal 
protections on a minimum of 75 percent of streams and wetlands 
that have been protected by the act since its inception. These 
are the very same waters and wetlands that are critical to 
capturing and storing rain and snowmelt to ensure a long-term 
water supply and recharge our underground aquifers.
    The ``dirty water rule'' removed protections for streams 
and wetlands that are a source of drinking water to over 117 
million Americans.
    We recognize there is a cost to protecting our communities, 
our sources of drinking water, and our environment. However, we 
believe this cost should be borne by those seeking to pollute 
our waterways or to fill our wetlands for their own personal 
gain rather than transferring that cost to average Americans or 
to downstream States.
    The Trump ``dirty water rule'' would have led to higher 
water bills for American families and businesses as water 
agencies will be forced to clean the polluted water prior to it 
being delivered to our taps.
    The ``dirty water rule'' would have increased the level of 
pollution in our water bodies, increased the downstream risk of 
flooding in our communities, polluted sources of our drinking 
water, and make hard-working American families pay for the mess 
with increased water rates.
    We all want certainty. For decades, the regulations 
established by former President Reagan and implemented by every 
Republican and Democratic administration since then established 
a framework to achieve that certainty. But we believe we can 
have certainty as well as clean water. We don't have to choose 
between them.
    The Trump ``dirty water rule'' chose one definition of 
certainty--the elimination of Federal protection of our rivers, 
streams, and wetlands--over the goals of the Clean Water Act, 
which seeks rightly to restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters.
    Now, supporters of the Trump ``dirty water rule'' are 
urging the Supreme Court to create even more uncertainty 
through a test that could result in increased litigation and 
decreased protection of our water bodies.
    I applaud the Biden administration for overturning the 
Trump ``dirty water rule'' and reinstating decades-old and 
well-understood protections of our Nation's rivers, streams, 
and wetlands. The Biden administration recognizes that families 
and businesses should not be burdened with paying to clean up 
the water pollution of others in order to have clean water at 
their tap.
    We must protect and strengthen the Clean Water Act to 
preserve the health of our economy as well as our communities, 
our environment, and our water-dependent futures.
    Again, Mr. Chairman, congratulations on your new role as 
chairman of the Subcommittee on Water Resources and 
Environment, and I look forward to working with you.
    I yield back the balance of my time.
    [Mrs. Napolitano's prepared statement follows:]

                                 
  Prepared Statement of Hon. Grace F. Napolitano, a Representative in 
Congress from the State of California, and Ranking Member, Subcommittee 
                   on Water Resources and Environment
    Thank you, Mr. Chairman, and congratulations on your new role 
leading the Subcommittee on Water Resources and Environment. I am 
excited to continue to work with you to provide flood control, water 
quality protection, environmental restoration, and navigation for our 
local communities across the country.
    This subcommittee was extremely successful last Congress in 
addressing the bipartisan needs of the nation. From enactment of our 
fifth-consecutive and bipartisan WRDA bill, to the first 
reauthorization of the Clean Water SRF since its inception, to 
addressing the individual needs of unique watersheds throughout the 
county on a bipartisan basis, this subcommittee addressed our critical 
water infrastructure needs while also protecting our environment for 
future generations. We look forward to a sixth bipartisan WRDA bill 
this Congress.
    Clean water was not always a partisan issue.
    In 1972, the House voted to enact the Clean Water Act over the veto 
of former President Nixon by a 10-to-1 margin, and no issue has more 
support among American families than the protection of our nation's 
waters.
    The history of water pollution protection in this country, the law, 
and science require a comprehensive approach to protecting our rivers, 
streams, and wetlands. Yet, former-President Trump's Dirty Water Rule 
will return us to the days when the Great Lakes were declared ``dead,'' 
and when some rivers literally caught fire.
    There should be a strong partnership between the U.S. Army Corps of 
Engineers, the U.S. Environmental Protection Agency, and our States, 
where each entity plays a responsible role in ensuring a level-playing 
field of clean water among upstream and downstream states. Yet, our 
limited experience under the Dirty Water Rule showed the exact 
opposite.
    To demonstrate, I ask unanimous consent that a summary of state 
legal constraints on protecting waters not covered by the Clean Water 
Act prepared by the Environmental Law Institute be made part of today's 
hearing record.
    Mr. Chairman, the Clean Water Act ensures our cities, our 
businesses, and our farmers, have sufficient, safe, and sustainable 
supplies of water, to meet our quality-of-life needs, our economic and 
agricultural needs, and our day-to-day survival, especially in the arid 
regions of the country, such as I represent in southern California.
    The Trump Dirty Water Rule eliminated federal protections on a 
minimum of 75 percent of streams and wetlands that have been protected 
by the Act since its inception. These are the very same waters and 
wetlands that are critical to capturing and storing rain and snowmelt 
to ensure a long-term supply of water and recharge our underground 
aquifers. The Dirty Water Rule removed protections of the streams and 
wetlands that are a source of the drinking water to over 117 million 
Americans.
    We recognize that there is a cost to protecting our communities, 
our sources of drinking water, and our environment. However, we believe 
that this cost should be borne by those seeking to pollute our 
waterways or fill our wetlands for their own personal gain rather than 
transferring that cost to average Americans, or to downstream states. 
The Trump Dirty Water Rule would have led to higher water bills for 
American families and businesses, as water agencies will be forced to 
clean the polluted water, prior to it being delivered to our taps.
    The Dirty Water Rule would have increased the level of pollution in 
our waterbodies, increased the downstream risk of flooding in our 
communities, polluted sources of our drinking water, and made hard 
working American families pay for the mess with increased water rates.
    We all want certainty--and for decades, the regulations established 
by former President Reagan, and implemented by every Republican and 
Democratic administration since then, established a framework to 
achieve that certainty--but we believe we can have certainty, as well 
as clean water--and we don't have to choose between them.
    The Trump Dirty Water Rule chose one definition of certainty--the 
elimination of federal protection of our rivers, streams, and 
wetlands--over the goals of the Clean Water Act, which seeks to 
``restore and maintain the chemical, physical, and biological integrity 
of the Nation's waters.''
    Now, supporters of the Trump Dirty Water Rule are urging the 
Supreme Court to create even more uncertainty through a new test that 
could result in increased litigation and decreased protection of our 
waterbodies.
    I applaud the Biden administration for overturning the Trump Dirty 
Water Rule and reinstating decades-old and well-understood protections 
of our nation's rivers, streams, and wetlands. The Biden Administration 
recognizes that families and businesses should not be burdened with 
paying to clean up the pollution of others in order to have clean water 
at their tap. We must protect and strengthen the Clean Water Act to 
preserve the health of our economy as well as our communities, our 
environment, and our water-dependent futures.
    Again Mr. Chairman, congratulations on your new role as Chairman of 
the Subcommittee on Water Resources and Environment. I yield back the 
balance of my time.

    Mr. Rouzer. I thank the dear lady.
    I now recognize the chairman of the full committee, Mr. 
Graves, for up to 5 minutes for an opening statement.
    Mr. Graves of Missouri. Thank you, Mr. Chairman. I am not 
going to take up much time. By the way, happy birthday.
    Mr. Rouzer. Thank you. It is actually my brother's birthday 
today. Mine will come next week. But we are celebrating early.

  OPENING STATEMENT OF HON. SAM GRAVES OF MISSOURI, CHAIRMAN, 
         COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

    Mr. Graves of Missouri. I am not going to take up much 
time.
    I believe that the Obama administration, and then following 
up with the Biden administration, this is a massive overreach 
of regulatory abuse when it comes to the waters of the U.S.
    But the thing that sticks in my craw more than anything 
else is when people come up to me and tell me that--and I am 
specifically speaking to agriculture, but this has created so 
much uncertainty with communities, businesses, agriculture, 
farmers, you name it--but I get frustrated when people come up 
to me and tell me: Why are you so worried about this? It 
exempts farmers. It exempts agriculture.
    And have I one simple question: If that is the case, then 
why are so many of my farmers embroiled in litigation over the 
WOTUS definitions? Person after person in my district calls to 
say: What do I do? I am being sued over this or I am being sued 
over that. I can't build a pond, I can't build any of my 
retainment structures, whatever the case may be, and it is 
extraordinarily frustrating.
    So, when people tell you that this group or that group is 
exempt from WOTUS, it is simply not the case.
    And with that, I yield back.
    Mr. Rouzer. I now recognize the ranking member of the full 
committee, Mr. Larsen, for 5 minutes for an opening statement.

 OPENING STATEMENT OF HON. RICK LARSEN OF WASHINGTON, RANKING 
     MEMBER, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

    Mr. Larsen of Washington. Thank you, Mr. Chair.
    If the WOTUS rule was a Member of Congress, I think its 
seniority number would be about 75. I have been at this issue 
since 2005, I think was the first hearing I attended in this 
committee on the WOTUS rule. So, it has been a while. 
Hopefully, we can get to an end at some point.
    But my State itself is defined by its clean water, 
including the health of the Puget Sound, the hundreds of lakes 
that we have, thousands of miles of rivers and streams 
throughout the State.
    People in my State know that rivers, streams, and wetlands 
are intrinsically connected, and the health of our waters and 
our water-related economy depend on a strong partnership with 
the Federal Government and a level playing field among its 
upstream and downstream neighbors, including Tribal lands.
    The need for a level playing field was the reason why, 50 
years ago, this committee passed the original Clean Water Act. 
In the 1970s, Congress specifically noted in the legislative 
history of the act that a State-by-State, go-it-alone approach 
was, quote ``inadequate in every vital aspect,'' end quote, and 
left waters severely polluted.
    Recently, my State joined several others in highlighting to 
the Supreme Court Congress' deliberate decision in 1972 to 
replace an ineffective patchwork of State laws with the Clean 
Water Act. In doing so, Congress sought to protect the 
interests of downstream States that might otherwise suffer the 
environmental consequences and economic burdens of weak or 
nonexistent pollution control upstream.
    That was our shared bipartisan view of clean water for 
decades--a strong Federal-State partnership to protect our 
waters, where the Corps and the EPA set a robust Federal floor 
of protections, and States could choose to do more but not 
less.
    It was that view, embodied in the Reagan-era regulations, 
that for the most part, have been adopted by every Presidential 
administration since. It is also the view embodied in the Biden 
proposal that seeks to clarify Clean Water Act regulations 
after a Federal district court tossed out the Trump 
administration rules.
    In 2006, the Supreme Court, though, complicated the Clean 
Water Act by issuing a decision that instituted the use of a 
test for determining what waters remain protected by the act, 
but the Court did not agree on a single test. That is where I 
started following the WOTUS issue in several marathon hearings 
before this committee and subcommittee--discussing many of the 
same issues we are discussing today.
    Since the Rapanos decision, every Presidential 
administration has adopted the two tests outlined by the 
Supreme Court--the ``relatively permanent'' test and the 
``significant nexus'' test--for determining Clean Water Act 
protections.
    The Trump administration's second rulemaking attempt 
abandoned the ``significant nexus'' test. The result was an 
unfathomable loss of Federal protections in place since 1972 
and no evidence that States have the desire or resources to 
fill in those gaps.
    The Trump rule defied clean water history, defied the law, 
and defied science on how watersheds function, and, 
fortunately, this rule was rejected by a Federal court only 14 
months after it took effect, reinstating the Reagan-era 
regulations and continued use of both those tests.
    The Biden rule recodifies the Reagan-era framework and the 
use of both jurisdictional tests, but also includes significant 
improvements and exemptions requested by stakeholders to 
address legitimate concerns over uncertainty and to ease 
compliance.
    The rule seeks to balance the need to protect waters and 
wetlands consistent with the goals of the Clean Water Act, 
while trying to comply with the law, the science, and various 
opinions of the Supreme Court.
    The Biden rule is not perfect, but in my opinion, it is a 
far better place to start for certainty, for legality, and 
protecting the quality of our Nation's waters.
    Unfortunately, the recently introduced Congressional Review 
Act resolution to block the proposal is likely to create more 
uncertainty. Should this resolution become law, it has the 
potential to cause even more chaos and confusion.
    For example, if the resolution is adopted, it is unlikely 
to prevent the continued use of the ``significant nexus'' test, 
as this test is already being utilized today. However, passage 
of the resolution would eliminate those stakeholder-led 
clarifications in the Biden rule and prevent future 
administrations from further improving the rule unless Congress 
decides to intervene.
    Further, enactment of this resolution could block agencies 
from helping stakeholders comply with any new jurisdictional 
tests that might be announced by this Supreme Court. If that 
were the case, stakeholders could be left with an invalidated 
rulemaking and a framework for a new, judicially led test, but 
no guidance on how to apply that test in the field.
    In my view, that is the exact opposite of certainty and a 
big mistake. I support this administration's efforts to protect 
water quality and provide stakeholders with some additional 
clarity on how to comply with the Clean Water Act.
    So, I want to thank you for the chance to give an opening 
statement.
    I thank the witnesses for joining us today and look forward 
to your testimony.
    Thank you.
    [Mr. Larsen of Washington's prepared statement follows:]

                                 
 Prepared Statement of Hon. Rick Larsen, a Representative in Congress 
    from the State of Washington, and Ranking Member, Committee on 
                   Transportation and Infrastructure
    My state is defined by its clean water, including the health of the 
Puget Sound and the hundreds of lakes, and thousands of miles of rivers 
and streams throughout Washington.
    Washingtonians know that rivers, streams, and wetlands are 
intrinsically connected. The health of Washington's waters and its 
water-related economy depends on a strong partnership with the federal 
government and a level playing field among its upstream and downstream 
neighbors, including Tribal lands.
    The need for a level playing field was the reason why, 50 years 
ago, this committee passed the original Clean Water Act. In the 1970s, 
Congress specifically noted in the legislative history of the Act that 
a state-by-state, go-it-alone approach was ``inadequate in every vital 
aspect'' and left waters severely polluted.
    Recently, my state joined several others in highlighting to the 
Supreme Court Congress' deliberate decision in 1972 to replace an 
ineffective patchwork of state laws with the Clean Water Act.
    In doing so, Congress sought to protect the interests of downstream 
states that might otherwise suffer the environmental consequences and 
economic burdens of weak or non-existent pollution controls upstream.
    That was our shared, bipartisan view of clean water for decades--a 
strong federal, state partnership to protect our waters, where the 
Corps and EPA set a robust federal floor of protections and states 
could choose to do more, but not less.
    It was the view embodied in the Reagan-era regulations that, for 
the most part, have been adopted by every Presidential administration 
since--including the previous administration, until it changed its 
mind.
    It is also the view embodied in the Biden proposal that seeks to 
clarify Clean Water Act regulations after a federal district court 
tossed out the Trump administration rules.
    In 2006, the Supreme Court complicated the Clean Water Act by 
issuing a decision that instituted the use of a test for determining 
what waters remained protected by the Act, but the Court did not agree 
on a single test. That is where I started following the WOTUS issue in 
several marathon hearings before this committee and subcommittee--
discussing many of the same issues and uncertainty we are discussing 
today.
    Since the Rapanos decision, every Presidential administration has 
adopted the two tests outlined by the Supreme Court--the ``relatively 
permanent'' test and the ``significant nexus'' test--for determining 
Clean Water Act protections.
    The Trump administration's second rulemaking attempt abandoned the 
``significant nexus'' test. The result was an unfathomable loss of 
federal protections in place since 1972 for countless streams, lakes, 
and wetlands, and no evidence that states have the desire or resources 
to fill in the gaps.
    The Trump rule defied clean water history, defied the law, and 
defied the science on how watersheds function. Fortunately, this rule 
was rejected by a federal court only 14 months after it took effect, 
reinstating the Reagan-era regulations and the continued use of both 
the ``relatively permanent'' and ``significant nexus'' tests.
    The Biden rule recodifies the Reagan-era framework and the use of 
both jurisdictional tests, but it also includes significant 
improvements and exemptions, requested by stakeholders, to address 
legitimate concerns over uncertainty and to ease compliance.
    The Biden rule seeks to balance the need to protect waters and 
wetlands, consistent with the goals of the Clean Water Act, while 
trying to comply with the law, the science, and the opinions of the 
Supreme Court.
    The Biden rule is not perfect. But, in my opinion, it is a far 
better starting place for certainty, legality, and protecting the 
quality of our nation's waters than the Dirty Water Rule.
    Unfortunately, the recently introduced Congressional Review Act 
resolution to block the Biden proposal is likely to create more 
uncertainty. Should this resolution become law--and I certainly will 
work to ensure it does not--it has the potential to cause even more 
chaos and confusion over what waters remain protected by the Clean 
Water Act.
    For example, if the resolution is adopted, it is unlikely to 
prevent the continued use of the ``significant nexus'' test, as this 
test is already being utilized today. However, passage of the 
resolution would eliminate those stakeholder-led clarifications in the 
Biden rule and would prevent future administrations from further 
improving the rule unless Congress decides to intervene.
    Further, enactment of this resolution could block agencies from 
helping stakeholders comply with any new jurisdictional test that might 
be announced by the Supreme Court. If that were the case, stakeholders 
could be left with an invalidated rulemaking and a framework for a new, 
judicially-led test, but no guidance on how to apply that test in the 
field.
    In my view, that is exactly the opposite of certainty and a big 
mistake. I support this administration's efforts to protect water 
quality and to provide stakeholders with some additional clarity on how 
to comply with the Clean Water Act.
    I thank the witnesses for joining us today and I look forward to 
your testimony.

    Mr. Rouzer. Thank you, Mr. Larsen.
    The ranking member and I, I see, have a series of dueling 
documents to submit for the record. And so, I will go first.
    I ask unanimous consent to enter into the record a letter 
from the Associated Builders and Contractors dated February 7, 
2023.
    Without objection, so ordered.
    [The information follows:]

                                 
      Letter of February 7, 2023, to Hon. David Rouzer, Chairman, 
     Subcommittee on Water Resources and Environment, from Kristen 
    Swearingen, Vice President, Legislative and Political Affairs, 
 Associated Builders and Contractors, Submitted for the Record by Hon. 
                              David Rouzer
                                                  February 7, 2023.
The Honorable David Rouzer,
Chairman,
U.S. House Committee on Transportation and Infrastructure, Subcommittee 
        on Water Resources and Environment.
    Dear Chairman Rouzer and Members of the U.S. House Committee on 
Transportation and Infrastructure Subcommittee on Water Resources and 
Environment:
    On behalf of Associated Builders and Contractors, a national 
construction industry trade association with 68 chapters representing 
more than 21,000 members, I write to comment on the U.S. House 
Committee on Transportation and Infrastructure Subcommittee on Water 
Resources and Environment Hearing, ``Stakeholder Perspectives on 
Impacts of the Biden Administration's Water of the United States 
Rule.''
    ABC applauds the subcommittee for calling this important hearing to 
gather stakeholder perspectives. ABC is also appreciative of Chairmen 
Graves and Rouzer's joint resolution of disapproval on the Biden 
administration's burdensome WOTUS rule under the Congressional Review 
Act and urges the U.S. House of Representatives to swiftly consider the 
legislation.
    As a member of the Waters Advocacy Coalition, ABC filed comments on 
the U.S. Environmental Protection Agency and the U.S. Army Corps of 
Engineers' proposed rule to revise the definition of ``waters of the 
United States'' applicable to all Clean Water Act programs. On Jan. 18, 
2023, the agencies released a final rule, effective March 20, that 
unfortunately entirely disregarded the concerns expressed by ABC and 
the WAC coalition in the comment letter.
    The rule would repeal the Trump administration's Navigable Waters 
Protection Rule and codify a definition that reflects the pre-2015 
regulatory regime that the agencies are currently implementing. Raising 
numerous important concerns, the coalition urged the agencies to 
withdraw the proposed rule, reconsider the rule while addressing the 
coalition's concerns and reengaging stakeholders and repropose a rule 
that adheres to the CWA and relevant U.S. Supreme Court precedent. 
Instead, ABC supports maintaining the NWPR's concise definition of 
WOTUS under the CWA so contractors have the information they need to 
comply with the law while also serving as good stewards of the 
environment.
    ABC and the WAC have consistently urged the agencies to define 
WOTUS in a way that:
      Gives appropriate weight to the explicit statutory policy 
to recognize, preserve and protect the states' traditional and primary 
authority over land and water use;
      Adheres to the full Supreme Court precedent on the 
definition of WOTUS under the CWA;
      Gives effect to the term ``navigable'' in the statutory 
text;
      Draws clear lines between federal and state or tribal 
jurisdiction so that regulators and regulated entities can easily 
identify which features are subject to federal CWA jurisdiction; and
      Accounts for science but recognizes that the statutory 
text ultimately dictates jurisdiction.

    ABC and the WAC continue to believe that the NWPR is an appropriate 
foundation for a durable and defensible rule. Rather than wiping out 
that rule in its entirety and replacing it with the flawed framework 
that prompted stakeholders to demand more clarity and certainty, the 
agencies should focus their efforts on revisions to the NWPR or related 
implementation guidance.
    Under the 2015 WOTUS rule, the EPA and the Corps gave themselves 
unprecedented permitting and enforcement authority over land-use 
decisions that Congress did not authorize and had previously been under 
state or local jurisdiction. Under that rule, construction companies 
needed to rethink conventional building practices near any wet area, 
and property owners could face heavy fines for using their own ponds 
and creeks. Further, critical infrastructure projects could be slowed 
as a result of additional permitting requirements that involve the EPA 
and the Corps, when in the past they may have only included city, 
county or state governments.
    Further, as Congress continues to debate permitting reform efforts, 
ABC urges that the codification of the 2020 NWPR remains a priority. 
Sen. Shelley Capito's, R-W.Va., ABC-supported legislation, The START 
Act, would codify the 2020 NWPR and the Trump administration's Section 
401 Certification Rule under the CWA to prevent state actions that 
unreasonably block energy projects, which ABC would welcome.
    Finally, because the Supreme Court has decided to hear the case of 
Sackett v. Environmental Protection Agency, which challenges EPA's 
overreach of its CWA jurisdiction, there is no sense in rushing through 
a rulemaking proceeding that codifies a standard that the Supreme Court 
could change or foreclose altogether.
    ABC and its members are committed to building our nation's 
infrastructure projects with the highest standards of safety and 
quality. ABC members stand ready for the opportunity to build and 
maintain America's energy infrastructure to the benefit of the 
communities that it will serve.
        Sincerely,
                                        Kristen Swearingen,
                 Vice President, Legislative and Political Affairs,
                               Associated Builders and Contractors.

CC:  Members of the U.S. House Committee on Transportation and 
Infrastructure Subcommittee on Water Resources and Environment

    Mr. Rouzer. I ask unanimous consent to enter into the 
record a statement from the American Road and Transportation 
Builders Association from February 8, 2023.
    Without objection, so ordered.
    [The information follows:]

                                 
Statement of the American Road and Transportation Builders Association, 
             Submitted for the Record by Hon. David Rouzer
    The American Road and Transportation Builders Association (ARTBA) 
thanks Chairman Rouzer and Ranking Member Napolitano for holding 
today's hearing, ``Stakeholder Perspectives on the Impacts of the Biden 
Administration's Waters of the United States (WOTUS) Rule.'' The rule 
marks the third time in the past seven years the U.S. Environmental 
Protection Agency (EPA) and Army Corps of Engineers (Corps) have 
redefined the federal jurisdiction of the Clean Water Act (CWA).
    ARTBA's principal concern with this series of rule changes has been 
roadside ditches, which our members commonly deploy to ensure safety 
and environmental compliance on transportation construction projects. 
Overreaching or uncertainty in their jurisdiction can trigger federal 
permitting requirements, potentially delaying or even interrupting 
these projects (while also likely increasing their costs).
    Under the 2015 WOTUS rule, virtually any ditch with standing water 
could fall under EPA and Corps jurisdiction. In 2020, the Corps and EPA 
explicitly exempted roadside ditches from the federal regulation. 
Unfortunately, the latest WOTUS rule reverts to the previous approach, 
a combination of needless overregulation and onerous case-by-case 
determinations of jurisdiction.
    Consequently, ARTBA supports the joint resolution introduced by 
Chairman Graves and Subcommittee Chairman Rouzer that would rescind the 
recent WOTUS rule and restore clarity to the federal permitting process 
for transportation construction projects.
    Because of the CWA's importance to planning and building projects, 
ARTBA has participated in litigation concerning federal jurisdiction 
over the nation's waters and wetlands for nearly two decades. This 
includes the case of Sackett v. EPA, which the U.S. Supreme Court 
agreed to hear in 2022. The Court will determine whether CWA 
jurisdiction should be based on ``significant nexus'' or a ``continuous 
surface water connection.'' Nonetheless, with this critical decision 
pending, the EPA and Corps have continued proceeding with the new WOTUS 
rule. Doing so prior to the disposition of Sackett, these agencies risk 
moving forward with a rule that may require an almost immediate 
rewrite. Therefore, it makes sense for them to suspend implementation 
of their new rule until the Court reaches its decision.
    At the same time, the Infrastructure Investment and Jobs Act (IIJA) 
features an historic federal investment in our nation's infrastructure, 
which should yield associated economic benefits across all communities. 
Public agencies and the transportation construction industry are 
working diligently to maximize these results through safe, efficient 
and timely project delivery. Regulatory overreach--such as the latest 
WOTUS revision--poses the greatest threat to these efforts.
    Through a key IIJA provision, the codification of One Federal 
Decision, the law seeks to complete the review and approval process for 
projects within two years \1\. Unfortunately, with its expanded 
jurisdiction determinations and permitting requirements, the EPA and 
Corps' latest WOTUS rule will put this two-year objective out of reach 
for many such projects. Do the EPA and Corps want their bureaucratic 
obstinance to interfere with achieving this objective, as well as 
delaying or diminishing the IIJA's economic benefits?
---------------------------------------------------------------------------
    \1\ IIJA, Sec. 11301. According to the White House Council on 
Environmental Quality, it currently takes an average of five to seven 
years for a transportation project to complete the environmental review 
and approval processes.
---------------------------------------------------------------------------
    For all these reasons, it is inopportune for the EPA and Corps to 
proceed with their third WOTUS revision in seven years. The agencies 
should instead definitively exempt roadside ditches from federal 
jurisdiction, or, at the very least, suspend implementation of their 
latest rule until the Supreme Court issues its decision in Sackett.
    ARTBA looks forward to continued collaboration with the committee 
towards a clear and consistent CWA regulatory system. Thank you for 
considering the viewpoint of the transportation construction industry 
on this important policy matter.

    Mr. Rouzer. I ask unanimous consent to enter into the 
record a letter from the National Multifamily Housing Council 
and the National Apartment Association dated February 8, 2023.
    Without objection, so ordered.
    [The information follows:]

                                 
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and Hon. Rick 
Larsen, Ranking Member, Committee on Transportation and Infrastructure, 
and Hon. David Rouzer, Chairman, and Hon. Grace F. Napolitano, Ranking 
Member, Subcommittee on Water Resources and Environment, from Cindy V. 
Chetti, Senior Vice President, Government Affairs, National Multifamily 
     Housing Council, and Gregory S. Brown, Senior Vice President, 
 Government Affairs, National Apartment Association, Submitted for the 
                      Record by Hon. David Rouzer
                                                  February 8, 2023.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, U.S. House of 
        Representatives, Washington, DC 20515.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Envir., Committee on Transportation 
        and Infrastructure, U.S. House of Representatives, Washington, 
        DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, U.S. House of 
        Representatives, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Envir., Committee on Transportation 
        and Infrastructure, U.S. House of Representatives, Washington, 
        DC 20515.
    Dear Chairman Graves, Ranking Member Larsen, Chairman Rouzer and 
Ranking Member Napolitano:
    The National Multifamily Housing Council (NMHC) and the National 
Apartment Association (NAA) provide a single voice for the apartment 
industry including the developers, owners and operators of multifamily 
rental housing. We are committed to providing affordable and attainable 
housing nationwide, yet the nation faces a significant housing 
affordability challenge that is exacerbated by an insufficient housing 
supply. Therefore, we appreciate the Committee gathering for a hearing 
entitled ``Stakeholder Perspectives on the Impacts of the Biden 
Administration's Waters of the United States (WOTUS) Rule'' and 
encourage you to support efforts to ensure that federal water 
requirements do not undermine the ability to develop and build 
America's much-needed housing.
    One-third of all Americans rent their housing, and our industry 
plays a critical role in meeting the nation's housing needs by 
providing apartment homes for nearly 39 million residents and 
contributing $3.4 trillion annually to the economy. However, undue 
regulatory barriers hinder our ability to produce necessary housing and 
the recently released U.S. Environmental Protection Agency (EPA) and 
U.S. Army Corps of Engineers (Army Corps) final rule revising the 
definition of WOTUS under the Clean Water Act (CWA) poses potentially 
significant harm to the real estate sector. While the apartment 
industry strongly supports protecting our nation's water resources, 
expanding the scope of the CWA would result in undue federal regulatory 
requirements for housing providers. These additional hurdles would 
create delays, add costs and ultimately dampen critically needed 
housing construction and development.
           Critical Housing Shortages and Regulatory Barriers
    It is essential that we build housing at all price points to 
address the nation's critical housing challenges and ensure economic 
stability for American households. According to recent research 
commissioned by NMHC and NAA, the U.S. is facing a pressing need to 
build 4.3 million new apartment homes by 2035.\1\ This includes an 
existing shortage of 600,000 apartment homes stemming from 
underbuilding due in large part to the 2008 financial crisis. Further, 
underproduction of housing has translated to higher housing costs--
resulting in a consequential loss of affordable housing units (those 
with rents less than $1,000 per month), with a decline of 4.7 million 
units from 2015 to 2020.
---------------------------------------------------------------------------
    \1\ Hoyt Advisory Services, ``Estimating the Total U.S. Demand for 
Rental Housing by 2035.'' (2022), https://www.weareapartments.org/.
---------------------------------------------------------------------------
    In fact, the total share of cost-burdened apartment households 
(those paying more than 30% of their income on housing) has increased 
steadily over several decades and reached 57.6% in 2021.\2\ During this 
same period, the total share of severely cost-burdened apartment 
households (those paying more than half their income on housing) 
increased from 20.9% in 1985 to 31.0%.\3\
---------------------------------------------------------------------------
    \2\ NMHC tabulations of 1985 American Housing Survey microdata, 
U.S. Census Bureau; 2021 American Housing Survey, U.S. Census Bureau.
    \3\ Id.
---------------------------------------------------------------------------
    Meanwhile, it is becoming increasingly difficult to build housing 
that is affordable to a wide range of income levels. Rental housing 
providers stand ready to help meet current and future demand, but 
cannot do it alone. Unnecessary, duplicative or unduly burdensome laws, 
policies and regulations at all levels of government prevent us from 
delivering the housing our country so desperately needs. High 
regulatory costs, in particular, create a barrier to affordable housing 
supply. Recent research published by NMHC and the National Association 
of Home Builders found that regulation imposed by all levels of 
government accounts for 40.6 percent of multifamily development 
costs.\4\
---------------------------------------------------------------------------
    \4\ National Multifamily Housing Council and National Association 
of Home Builders Regulation: 40.6 Percent of the Cost of Multifamily 
Development, https://www.nmhc.org/globalassets/research--insight/
research-reports/cost-of-regulations/2022-nahb-nmhc-cost-of-
regulations-report.pdf.
---------------------------------------------------------------------------
                         Impacts of WOTUS Rule
    For years, we have asked for clarity on the application of CWA 
requirements. Instead, numerous lawsuits, failed congressional reform 
efforts and inconsistent rulemakings have created uncertainty and 
confusion for property owners. We are therefore deeply disappointed 
that this latest WOTUS Rule does not resolve the tension apartment 
firms face over the scope of federal jurisdiction under the CWA. 
Without such clarity, property owners are deterred from undertaking 
critically needed housing construction and development projects.
    This federal overreach will greatly expand the universe of 
properties, including many with only a tenuous relationship to a body 
of water, required to seek very expensive federal permits to develop or 
redevelop housing. This additional requirement will create uncertainty 
and delay in permitting, add potentially significant costs and create 
additional legal risks that will exacerbate the nation's housing 
affordability crisis. Further, expanded, federal water regulations are 
an expensive, but unnecessary overlay, given that states and localities 
have their own water protection rules. Simply determining whether a 
property needs a federal permit is an expensive endeavor.
    Moreover, the release of this rule now ignores the forthcoming 
Supreme Court decision in Sackett v. EPA, which directly relates to 
this issue. Implementation of the new rule prior to the release of the 
Court's opinion will require businesses to spend significant time and 
resources in compliance efforts that may prove inconsistent with the 
Supreme Court's decision.
                               Conclusion
    Federal policy efforts should focus on incentivizing and breaking 
down existing barriers to housing development rather than add new 
regulatory burdens. Improving housing affordability and availability 
are key national priorities. We must recognize that additional, 
inconsistent and potentially duplicative regulation has a chilling 
effect on the market, drives up the cost of housing and disrupts needed 
investment at a time of significant affordability and supply 
challenges. We are committed to working with policymakers on 
protections for our water resources that support the creation of more 
housing, preserve affordability and ensure that every American has a 
safe, quality place to call home.
        Sincerely,
                                           Cindy V. Chetti,
   Senior Vice President, Government Affairs, National Multifamily 
                                                   Housing Council.
                                          Gregory S. Brown,
     Senior Vice President, Government Affairs, National Apartment 
                                                       Association.

CC:  Members of Subcommittee on Water Resources and Environment, House 
Committee on Transportation and Infrastructure

    Mr. Rouzer. I ask unanimous consent to enter into the 
record a letter from the National Association of Manufacturers 
dated February 8, 2023.
    Without objection, so ordered.
    [The information follows:]

                                 
 Letter of February 8, 2023, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
and Environment, from Nile Elam, Senior Director, Energy and Resources 
Policy, National Association of Manufacturers, Submitted for the Record 
                          by Hon. David Rouzer
                                                  February 8, 2023.
The Honorable David Rouzer,
Chairman,
Committee on Transportation and Infrastructure, Subcommittee on Water 
        Resources and Environment, U.S. House of Representatives, 
        Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Committee on Transportation and Infrastructure, Subcommittee on Water 
        Resources and Environment, U.S. House of Representatives, 
        Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano:
    We thank you for holding today's hearing, ``Stakeholder 
Perspectives on the Impacts of the Biden Administration's Water of the 
United States (WOTUS) Rule,'' and for your focus on examining the role 
of WOTUS and impacts on the regulated community. The National 
Association of Manufacturers is the largest manufacturing association 
in the United States, representing small and large manufacturers in 
every industrial sector and in all 50 states. Manufacturing employs 
nearly 13 million Americans, contributes $2.81 trillion to the U.S. 
economy annually, pays workers over 18% more than the average for all 
businesses and has one of the largest sectoral multipliers in the 
economy. Taken alone, manufacturing in the United States would be the 
eighth-largest economy in the world.
    The Clean Water Act jurisdictions that fall under WOTUS are key for 
manufacturers and communities alike regarding the standards and scope 
of various permits protecting clean water. A durable and pragmatic 
WOTUS rule with clear definitions, that are easily understandable and 
applicable across the country, ensures the public has access to clean 
water and regulated entities understand their water permits.
    Manufacturers prioritize environmental stewardship and protecting 
our national waterways, but the EPA's current WOTUS rule leaves 
stakeholders confused and relying on unclear terminology that is 
difficult to apply universally. Multiple Supreme Court decisions have 
touched on the definition of ``navigable waters'' over the years, but 
neither the SCOTUS nor the Agencies have provided sufficient clarity. 
Compounding this confusion, controversial legal arguments, including 
application of ``significant nexus'' underpins the current the 
proposal, which broadly expands federal jurisdiction beyond traditional 
navigable waters. The rule creates a new sprawling category of various 
waters--know as (a)(5) waters--a jurisdictional assertion that has not 
been seen since 2003. Because of these expansions and ambiguous terms, 
the careful balance between local and state regulators is unpredictable 
and can leave permit seekers with little guidance, aside from the need 
for more time and money to achieve their permitting requests.
    Despite a pending ruling from the Supreme Court on Sackett v EPA, 
which could definitively change Clean Water Act jurisdiction and WOTUS 
application, the EPA recently released its new WOTUS rule. The NAM has 
repeatedly argued that the EPA wait to release any WOTUS rule until 
this consequential verdict is released--which many expect by spring--
yet these calls have been ignored, as the EPA has produced a rule that 
may no longer be relevant and need to be redrafted before the end of 
the year.
    The Clean Water Act is a key permitting avenue for any 
manufacturer, and as it stands now, WOTUS is ripe with ambiguity and 
inconsistent terminology, and we need Congressional intervention in 
order to facilitate manufacturing expansion while achieving 
environmental stewardship. Today's hearing is a necessary step towards 
educating the public and policy stakeholders regarding the immense 
permitting regulatory efforts necessary under local and state 
jurisdictions, and the need for a complimentary WOTUS rule that 
advances permitting protections at the federal level while providing 
certainty for the regulated community.
    The NAM stands ready to work with your T&I colleagues, along with 
the EPA and Corps, regarding sensible, predictable and clear WOTUS 
regulations. Thank you again for your focus on permit certainty and in 
turn, enhancing manufacturers' ability to deliver their goods, expand 
their operations and grow their workforce.
        Respectfully,
                                                 Nile Elam,
                      Senior Director, Energy and Resources Policy,
                             National Association of Manufacturers.

    Mr. Rouzer. I ask unanimous consent to enter into the 
record a letter from the National Federation of Independent 
Business dated February 8, 2023.
    Without objection, so ordered.
    [The information follows:]

                                 
 Letter of February 8, 2023, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
and Environment, from Kevin Kuhlman, Vice President, Federal Government 
Relations, National Federation of Independent Business Inc., Submitted 
                  for the Record by Hon. David Rouzer
                                                  February 8, 2023.
The Honorable David Rouzer,
Chairman,
Water Resources and Environment Subcommittee, Committee on 
        Transportation and Infrastructure, U.S. House of 
        Representatives, Washington, DC 20515.
The Honorable Grace F. Napolitano,
Ranking Member,
Water Resources and Environment Subcommittee, Committee on 
        Transportation and Infrastructure, U.S. House of 
        Representatives, Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano,
    On behalf of NFIB, the nation's leading small business advocacy 
organization, I write concerning today's hearing entitled, 
``Stakeholder Perspectives on the Impacts of the Biden Administration's 
Waters of the United States (WOTUS) Rule.''
    On behalf of small businesses across the United States, thank you 
for holding today's hearing. Small business owners appreciate the 
opportunity to discuss the impacts of the Environmental Protection 
Agency's (EPA) and the Department of the Army's final rule, which 
significantly expanded the federal government's regulatory authority 
over wetlands, farms, and private property. This regulatory overreach 
will increase the regulatory burdens and uncertainty facing America's 
small farmers, ranchers, developers, contractors, and other small 
businesses.
    For many years, NFIB members have ranked ``unreasonable and 
burdensome government regulation'' as one of the top problems facing 
small businesses.\1\ Unfortunately, the red tape added by the Biden 
Administration's regulatory onslaught is unprecedented. In 2021, the 
Biden Administration finalized 283 regulations and imposed more than 
$200 billion in regulatory costs, the largest total in the first year 
of a presidency.\2\ The Biden Administration has followed up these 
finalized rules with an additional 311 proposed rules that could add 
another $191.2 billion in costs for regulated entities.\3\
---------------------------------------------------------------------------
    \1\ Holly Wade & Andrew Heritage, Small Business Problems & 
Priorities, NFIB Research Center, August 2020, https://assets.nfib.com/
nfibcom/NFIB-Problems-and-Priorities-2020.pdf.
    \2\ Dan Bosch, 2022: The Year in Regulation, American Action Forum, 
January 2023, https://www.americanactionforum.org/research/2022-the-
year-in-regulation/.
    \3\ Id.
---------------------------------------------------------------------------
    These added regulatory costs will fall disproportionately on small 
businesses, which do not have compliance divisions to navigate complex 
regulatory issues. Unfortunately, the regulatory cost estimates of the 
finalized and proposed rules will likely understate the regulatory 
burdens imposed on small businesses. For example, when the EPA and the 
Department of the Army certified the final WOTUS rule, the agencies 
stated the rule ``will not have a significant economic impact on a 
substantial number of small businesses.'' \4\ This conclusion by the 
EPA and Department of the Army is farcical. America's small farmers, 
ranchers, developers, contractors, and other small business owners 
believe the final rule will significantly increase their regulatory 
costs and uncertainty at a time when many face inflation, supply chain 
disruptions, and labor shortages.
---------------------------------------------------------------------------
    \4\ 88 Fed. Reg. 3139, col. 3. https://www.epa.gov/system/files/
documents/2023-01/Revised
%20Definition%20of%20Waters%20of%20the%20United%20States%20FRN%20January

%202023.pdf.
---------------------------------------------------------------------------
    The disappointing reality is that this regulatory uncertainty 
facing small businesses did not have to occur. The Biden Administration 
could have simply waited for the Supreme Court decision in the Sackett 
v. EPA case, which is anticipated in the coming months. However, by 
finalizing the rule before the Supreme Court decision, the Biden 
Administration threw caution to the wind and ignored the calls of small 
businesses. This inexplicable decision increased the regulatory 
uncertainty for small businesses as the federal authority under the 
Clean Water Act could once again change following the court decision.
    The current regulatory path is not sustainable. Small businesses 
cannot invest and grow in an environment where goalposts constantly 
shift with every election. We urge Congress to clarify the federal 
authorities granted under the Clean Water Act to provide certainty for 
regulated entities. Specifically, Congress must:
    1.  Repeal the EPA's and the Department of the Army's final WOTUS 
rule.
    2.  Write and enact clear statutes to eliminate uncertainty 
regarding Congressional intent and improve the ability of small 
businesses to comply with the law.
    3.  Require agencies to conduct thorough economic analyses that 
examine the direct and indirect costs of regulations on regulated 
entities, including small businesses and consumers.
    4.  Require agencies to eliminate or streamline outdated, 
unnecessary, and burdensome regulations.
    5.  Conduct robust oversight of and reduce Congressional 
appropriations for federal agencies that exceed their regulatory 
authorities granted under law.

    As this subcommittee conducts oversight and examines legislative 
options related to the Clean Water Act, we urge Congress to provide 
certainty to America's farmers, ranchers, developers, contractors, and 
other small businesses. Small businesses across America appreciate your 
leadership on this critical issue and look forward to working with you 
to reduce the regulatory and compliance burdens faced by small 
businesses.
        Sincerely,
                                             Kevin Kuhlman,
                Vice President, Federal Government Relations, NFIB.

    Mr. Rouzer. I ask unanimous consent to enter into the 
record a letter from the National Mining Association dated 
February 8, 2023.
    Without objection, so ordered.
    [The information follows:]

                                 
 Letter of February 8, 2023, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
 and Environment, from the National Mining Association, Submitted for 
                    the Record by Hon. David Rouzer
                                                  February 8, 2023.
Chairman David Rouzer,
House Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment, 2333 Rayburn House 
        Office Building, Washington, DC 20515.
Ranking Member Grace Napolitano,
House Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment, 1610 Longworth House 
        Office Building, Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano:
    As the Subcommittee on Water Resources and Environment works to 
support a regulatory atmosphere that ensures durability and certainty 
for all domestic industries, the National Mining Association (NMA) 
writes to express opposition to the Environmental Protection Agency 
(EPA) and the U.S. Army Corps of Engineers (Corps) final rule defining 
``Waters of the United States.''
    The NMA is the voice of the American mining industry in Washington, 
D.C. Membership includes more than 275 corporations involved in all 
aspects of mining including mineral and coal producers, mineral 
processors, equipment manufacturers, state mining associations, bulk 
transporters, engineering firms, consultants, financial institutions, 
and other companies that supply goods and services to the mining 
industry.
    The Clean Water Act was intended to provide both essential 
environmental protections for our nation's waterways as well as the 
regulatory certainty necessary for investment and a thriving economy. 
The mining industry relies on these basic regulatory tenets to make 
confident decisions that will create jobs, strengthen local 
communities, and provide the energy and materials that are the 
foundation of our economy.
    Unfortunately, the final WOTUS rule could not have been announced 
at a more consequential time as our nation intensifies efforts to 
secure mineral and material supply chains for infrastructure and 
energy, including metallurgical coal for steel production, minerals for 
electric vehicle batteries and renewable energy technologies, and other 
materials used to support our national defense. The U.S. Geological 
Survey's annual commodity summary released last month highlights the 
dire state of America's import overreliance, which now makes up more 
than one-half of the U.S. apparent consumption for 51 nonfuel mineral 
commodities, of which we were 100 percent net import reliant for 15 of 
those.\1\
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    \1\ U.S. Geological Survey, 2023 Commodity Summary, https://
pubs.er.usgs.gov/publication/mcs2023
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    While the agencies state the final rule is a return to the familiar 
and predictable pre-2015 regulatory regime, the final rule expands 
jurisdiction compared to the status quo in several important ways, 
including:
      The rule continues to rely on the confusing and 
subjective significant nexus test;
      It expands potential jurisdiction with the creation of a 
new catchall (a)(5) ``other waters'' category, which allows federal 
jurisdiction over features not identified as (a)(1) through (4) waters 
that meet either the relatively permanent or significant nexus test;
      The rule expands its regulatory overreach by changing the 
way the agencies plan to implement the significant nexus test that will 
generally be broader than has been done previously; and
      The exclusions in the final rule are not clearly defined 
and will be difficult for the mining industry and other regulated 
entities to implement.

    Despite these and other expansions, the agencies assert that there 
are only de minimis costs and benefits associated with this rulemaking. 
The same cannot be said for the effect the rule will have on the future 
of domestic mining. Currently, it takes between seven and ten years, 
and often longer, for a mine to receive all necessary federal permits 
to begin production. The uncertainty intrinsic in the final rule will 
ultimately disincentivize mining investment in the U.S. due to the long 
permitting timelines which require capital-intensive investments to 
develop a mine.
    The domestic mining industry and the communities in which they 
operate deserve certainty and assurance that regulations can be 
efficiently administered in a durable and predictable manner and 
without the threat of financial hardship and punitive burdens. The NMA 
appreciates the Committee on Transportation and Infrastructure 
Subcommittee on Water Resources and Environment's consideration and 
engagement on these key domestic mining priorities. We look forward to 
continuing to work with you.

    Mr. Rouzer. I ask unanimous consent to enter into the 
record a letter from the Republican Governors Association dated 
January 30, 2023.
    Without objection, so ordered.
    [The information follows:]

                                 
Letter of January 30, 2023, to President Joseph R. Biden, Jr., from the 
  Republican Governors Association, Submitted for the Record by Hon. 
                              David Rouzer
                                                  January 30, 2023.
President Joseph R. Biden, Jr.,
The White House,
1600 Pennsylvania Avenue, Washington, DC 20500.
    Dear President Biden,
    We write in opposition to your rule regarding the Clean Water Act 
(CWA) and the revised definition of ``Waters of the United States'' 
(WOTUS). Specifically, we request you delay its implementation until 
the U.S. Supreme Court issues a ruling in Sackett v. EPA. The WOTUS 
definition has been under scrutiny for nearly twenty years, and your 
Administration's rule only further complicates the efforts to create 
certainty under the CWA for rural communities. The problem is 
exacerbated by the pending Supreme Court ruling. The final WOTUS rule 
released during the holidays is concerning in terms of timing, 
substance, and process.
    The rule is problematic in and of itself, but its timing is 
particularly troubling given record inflation and gas prices that 
threaten the livelihoods of so many communities. Those who rely on 
farming and small business as a backbone of their local economies are 
particularly vulnerable. Another burdensome and overbroad regulation 
from the federal government could not come at a worse time for America. 
Having already squandered much of America's energy independence, you 
should not increase costs for consumers by tying up energy production 
with even more red tape.
    We call into question the timing and necessity of the rule with the 
Court's upcoming Sackett decision which is expected by June of this 
year. That opinion could significantly impact the final rule and its 
implementation. To change the rule multiple times in six months is an 
inefficient and wasteful use of State and federal resources and will 
impose an unnecessary strain on farmers, builders, and every other 
impacted sector of the American economy.
    The substance of the rule hinders State governments as we seek to 
give clarity and consistency to businesses, farms, and individuals 
regarding the regulatory framework for water. The broad definitions 
used in the 514-page document only add to the confusing and complicated 
history of WOTUS. In fact, it appears that the EPA is seeking to 
regulate private ponds, ditches, and other small water features.
    Understanding the final WOTUS rule will require States and the 
regulated community to wade through an extensive and unclearly written 
web of interpretations. Given the many outstanding issues the recent 
WOTUS rule generates, particularly in rural America, we ask that you 
delay implementation of the rule until the Court decides Sackett. Small 
businesses, farmers, and communities across America simply cannot 
afford another costly revision.
    Thank you for your consideration of this request. If you have 
further questions or would like to learn more from our State agencies, 
please do not hesitate to reach out to us.
        Sincerely,
Governor Brad Little,
  State of Idaho.
Governor Kay Ivey,
  State of Alabama.
Governor Mike Dunleavy,
  State of Alaska.
Governor Sarah Sanders,
  State of Arkansas.
Governor Ron DeSantis,
  State of Florida.
Governor Brian Kemp,
  State of Georgia.
Governor Eric Holcomb,
  State of Indiana.
Governor Kim Reynolds,
  State of Iowa.
Governor Tate Reeves,
  State of Mississippi.
Governor Mike Parson,
  State of Missouri.
Governor Greg Gianforte,
  State of Montana.
Governor Jim Pillen,
  State of Nebraska.
Governor Joe Lombardo,
  State of Nevada.
Governor Chris Sununu,
  State of New Hampshire.
Governor Doug Burgum,
  State of North Dakota.
Governor Mike DeWine,
  State of Ohio.
Governor Kevin Stitt,
  State of Oklahoma.
Governor Henry McMaster,
  State of South Carolina.
Governor Kristi Noem,
  State of South Dakota.
Governor Bill Lee,
  State of Tennessee.
Governor Greg Abbott,
  State of Texas.
Governor Spencer Cox,
  State of Utah.
Governor Glenn Youngkin,
  Commonwealth of Virginia.
Governor Jim Justice,
  State of West Virginia.
Governor Mark Gordon,
  State of Wyoming.
  

    Mr. Rouzer. I now recognize my friend and colleague from 
California.
    Mrs. Napolitano. That is a long one, Mr. Chairman. Thank 
you.
    I ask unanimous consent that the following statements be 
made part of today's record.
    It is a letter from the Clean Water for All Coalition.
    Mr. Rouzer. Without objection.
    [The information follows:]

                                 
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and Hon. Rick 
Larsen, Ranking Member, Committee on Transportation and Infrastructure, 
  from the Clean Water for All Coalition, Submitted for the Record by 
                        Hon. Grace F. Napolitano
                                                  February 8, 2023.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, United States House of 
        Representatives, 2164 Rayburn House Office Building, 
        Washington, DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, United States House of 
        Representatives, 2164 Rayburn House Office Building, 
        Washington, DC 20515.
    Chairman Graves, Ranking Member Larsen, Subcommittee Chairman 
Rouzer, and Subcommittee Ranking Member Napolitano,
    On behalf of the undersigned members and partners of the Clean 
Water for All Coalition, thank you for holding this hearing and 
prioritizing discussion of our country's water and the ways in which 
the U.S. EPA (``EPA'') and U.S. Army Corps of Engineers (``USACE'') are 
responsible for ensuring we strive toward the Clean Water Act's (CWA) 
goal: to ``restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters''.
    Clean Water for All is a national coalition that brings together 
diverse organizations to advance equitable policies that promote and 
increase clean water protections, access, and affordability across the 
nation. Our members are from all across the country and include hunters 
and fishers, local waterkeepers, environmental justice advocates, and 
sustainable businesses. Clean and abundant water resources are 
important for public health, agriculture, transportation, flood 
control, climate resilience, energy production, recreation, fishing and 
shellfishing, municipal and commercial uses, indigenous cultural 
practices, and much more. Because of the myriad values of water bodies, 
including wetlands protected by the Clean Water Act, our members are 
keenly interested in the ``Revised Definition of `Waters of the United 
States' '' rule (``the Revised Definition rule'').
    The Revised Definition rule is a return to a familiar approach for 
EPA and USACE, and regulated entities. In this rule, EPA and USACE 
identify waters that qualify as ``Waters of the United States'' in a 
way that tracks with the agencies' longstanding framework. In virtually 
every respect, it is a codification of the approach outlined in the 
Bush administration's 2008 guidance, which has been the basis for 
agency decisions for most of the past 15 years. That approach is 
decidedly more narrow than the rules implemented in the first three 
decades of the Clean Water Act and also substantially narrower than the 
2015 Clean Water Rule.
    Additionally, the Revised Definition rule is well within the limits 
identified in Supreme Court precedent, relies on the best available 
science, and draws on the agencies' experience and technical expertise. 
The scientific record includes hundreds of studies highlighting the 
ways different kinds of waters affect traditional navigable and 
interstate waters and therefore should be eligible for protection. The 
agencies have long made site-specific jurisdictional determinations 
under the CWA by considering this kind of scientific evidence, in both 
Republican and Democratic administrations. The science confirms what 
the agencies know, and what the authors of the CWA knew: the kinds of 
waters eligible for coverage under the rule (though, importantly, not 
categorically covered) perform important functions related to navigable 
and interstate waters' physical, chemical, and biological condition.
    In addition to consistency with historical approaches to 
administering the CWA and consistency with modern science, the Revised 
Definition rule thoroughly rejects the legal, policy, and factual bases 
for the Trump Administration's dangerous and misnamed ``Navigable 
Waters Protection Rule''. This rule departed from established precedent 
and authorized the pollution or destruction of tens of thousands of 
water bodies across the country and especially in the arid Southwest. 
The Revised Definition rule provides certainty that a threat to our 
waters like the last administration's rule will not be revived.
    More than three in four people support stronger federal protections 
for our nation's waters--ensuring everyone has clean water is a 
bipartisan, common sense issue. Too many communities, especially 
Indigenous communities, communities of color, and low wealth 
communities, still lack clean water. Our country must continue siding 
with people over polluters and work to ensure everyone, no matter their 
race, zip code, or income, has access to clean water. We all deserve 
clean water to drink, lakes where we can teach our children to swim, 
rivers where we can fish with family, and assurances that valuable 
wetlands and waters will flourish for generations to come. The Revised 
Definition rule is an important, reasonable, and practical step towards 
such a future.
        Sincerely,
Alabama Rivers Alliance.
Alliance for the Great Lakes.
American Rivers.
Anacostia Riverkeeper.
Clean Water Action.
Earthjustice.
Environment America.
Environmental Law & Policy Center.
Environmental Protection Network.
Freshwater Future.
GreenLatinos.
League of Conservation Voters.
National Parks Conservation Association.
National Wildlife Federation.
Natural Resources Defense Council.
Ohio River Foundation.
Potomac Riverkeeper Network.
River Network.
Sierra Club.
Southern Environmental Law Center.
Surfrider Foundation.
Sustainable Futures L3C.
The Water Collaborative of Greater New Orleans.

    Mrs. Napolitano. A letter from Trout Unlimited.
    Mr. Rouzer. Without objection.
    [The information follows:]

                                 
Letter of February 8, 2023, to Hon. Sam Graves, Chairman, and Hon. Rick 
Larsen, Ranking Member, Committee on Transportation and Infrastructure, 
and Hon. David Rouzer, Chairman, and Hon. Grace F. Napolitano, Ranking 
  Member, Subcommittee on Water Resources and Environment, from Kate 
Miller, Director of Government Affairs, Trout Unlimited, Submitted for 
                 the Record by Hon. Grace F. Napolitano
                                                  February 8, 2023.
The Honorable Sam Graves,
Chair,
House Transportation and Infrastructure Committee, 2165 Rayburn House 
        Office Building, Washington, DC 20515-6256.
The Honorable David Rouzer,
Chair,
House Transportation and Infrastructure Committee, Subcommittee on 
        Water Resources and Environment, H2-585 Ford House Office 
        Building, Washington, DC 20515-6256.
The Honorable Rick Larsen,
Ranking Member,
House Transportation and Infrastructure Committee, 2165 Rayburn House 
        Office Building, Washington, DC 20515-6256.
The Honorable Grace F. Napolitano,
Ranking Member,
House Transportation and Infrastructure Committee, Subcommittee on 
        Water Resources and Environment, H2-585 Ford House Office 
        Building, Washington, DC 20515-6256.

Re:  Letter for the Record, House Subcommittee on Water Resources and 
Environment, February 8, 2023 Hearing, ``Stakeholder Perspectives on 
the Impacts of the Biden Administration's Water of the United States 
(WOTUS) Rule.''

    Chairman Graves, Ranking Member Larsen, Subcommittee Chairman 
Rouzer, and Subcommittee Ranking Member Napolitano:
    Trout Unlimited (``TU'') submits this letter for the record in 
connection with your hearing on stakeholders' perspectives on the Clean 
Water Act and its implementation by the U.S. EPA (``EPA'') and U.S. 
Army Corps of Engineers (``USACE''), specifically the agencies' recent 
publication of their ``Revised Definition of 'Waters of the United 
States' '' rule (``the Revised Definition Rule'').
    TU has more than 350,000 members and supporters in 380 chapters and 
36 state councils across America. Our mission is to bring together 
diverse interests to care for and recover rivers and streams so our 
children can experience the joy of wild and native trout and salmon. 
Our members cherish their personal connections with their nearby 
streams and rivers. They care deeply about the health of the nation's 
waterways and our responsibility to steward water resources for future 
generations.
    TU supported the revised ``Waters of the United States'' definition 
because it meets the purpose of the Clean Water Act, which is to make 
our waters healthy, fishable, and swimmable. The revised definition is 
rooted in sound science and ensures protection of small streams and 
wetlands that provide clean water not just for trout and salmon 
fisheries but also for farmers, businesses, and communities. TU has 
been a leader in defending the Clean Water Act, and we write today in 
support of the Revised Definition Rule.
1. The Revised Definition Rule is a return to the approach under the 
        Reagan and Bush Administrations.
    The Revised Definition Rule is a return to a familiar approach for 
EPA and USACE. The agencies' rule returns to the regulatory approach 
that dates to President Reagan's administration, updated to reflect 
limits the U.S. Supreme Court has placed on federal jurisdiction during 
the intervening 36 years. President George H.W. Bush presided over 
implementation of a similar agency rule. The agencies' Revised 
Definition Rule also tracks the 2008 guidance issued under the 
President George W. Bush Administration, which has been the basis for 
agency decisions for most of the past 15 years.
    Although narrower than the 2015 Clean Water Rule, the Revised 
Definition Rule is well within the limits identified in Supreme Court 
precedent, relies on the best-available science, and draws on the 
agencies' experience and technical expertise. The agencies have long 
made site-specific jurisdictional determinations under the Clean Water 
Act, under both Republican and Democratic administrations.
    Because the Clean Water Act itself exempts from permitting routine, 
ongoing farming and ranching activities, these important economic 
activities are protected under the Revised Definition Rule. Farming, 
ranching, and forestry activities such as plowing, cultivating, minor 
drainage, and harvesting for the production of food, fiber, and forest 
products, or upland soil and water conservation practices are all 
exempt from 404 permitting under Section 404(f)(1)(A) of the Clean 
Water Act.\1\ The Revised Definition Rule recognizes that American 
agriculture fulfills a vitally important public need and ensures that 
the agricultural exemptions are appropriately implemented.
---------------------------------------------------------------------------
    \1\ Memorandum: Clean Water Act Section 404 Regulatory Program and 
Agricultural Activities, United States Environmental Protection Agency 
and United States Department of the Army, (May 3, 1990), available at: 
https://www.epa.gov/cwa-404/memorandum-clean-water-act-section-404-
regulatory-program-and-agricultural-activities (last visited on 
February 7, 2023).
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2. The Revised Definition Rule corrects the deficiencies of the 2020 
        Navigable Waters Protection Rule.
    Over the past two years, TU scientists have documented how drafters 
of the 2020 Navigable Waters Protection Rule failed to assess its 
potentially devastating impacts on ``ephemeral'' streams, which are 
critical tributaries of larger streams--and which a TU-led peer-
reviewed publication estimated comprise 48% of stream channels by 
length in the coterminous U.S.\2\ Trout Unlimited, which filed amicus 
briefs in two court challenges to the rule, also recently examined the 
EPA's Jurisdictional Determinations (JDs) database, to estimate the 
loss of Clean Water Act protection under the 2020 Navigable Waters 
Protection Rule. Based on previous jurisdictional determinations, we 
conservatively estimated that approximately 2.4 million stream miles, 
23 percent of stream channels by length in the conterminous U.S., would 
lose the protection of jurisdictional consideration under the 2020 
Navigable Waters Protection Rule.\3\ This percentage is much higher in 
certain regions and watersheds, such as the more arid landscapes of the 
Southwestern United States.\4\
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    \2\ K. Fesenmyer et al. Large portion of USA streams lose 
protection with new interpretation of Clean Water Act. Freshwater 
Science 40(1) (2021), attached as Ex. 1.
    \3\ K. Fesenmyer et al. Large portion of USA streams lose 
protection with new interpretation of Clean Water Act. Freshwater 
Science 40(1) (2021), attached as Ex. 1.
    \4\ L.R. Levick et al, The ecological and hydrological significance 
of ephemeral and intermittent streams in the arid and semi-arid 
American Southwest, EPA & USDA/ARS Southwest Water-shed Research 
Center, EPA/600/R-08/134, ARS/233046 (2008). (Levick et al (2008)) (AR 
0037).
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    Below is a map showing the percentage of ephemeral streams by 
watershed, based on TU research, indicating that over half of 
Colorado's stream miles are ephemeral, and therefore categorically 
excluded even from consideration for Clean Water Act jurisdiction by 
the 2020 Navigable Waters Protection Rule.



    The 2020 Rule also categorically excluded geographically isolated, 
non-floodplain wetlands from Clean Water Act protection, along with 
wetlands that may be adjacent to navigable waters and their 
tributaries, but do not directly abut those waters, and do not have a 
continual surface water connection to them. Non-floodplain wetlands 
alone in Colorado cover an estimated 449,428 acres.\5\ This constitutes 
approximately 22 percent of the state's remaining wetland acres that 
would have been categorically excluded by the 2020 Rule. Half of 
Colorado's wetlands have already been lost to human activity. See below 
map of Colorado's wetlands that would have been at-risk under the 2020 
Navigable Waters Protection Rule.
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    \5\ C.R. Lane and E. D'Amico, Identification of putative 
geographically isolated wetlands of the conterminous United States, 52 
J. Am. Water Resources Association 705 (2016) (AR 11724).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Those wetlands that remain have an outsized importance for fish and 
wildlife in the state. While wetlands occupy only 2 percent of the 
state's land, they provide habitat for 75 percent of the state's 
species, including at risk species.\6\ What is more, many of these now 
vulnerable wetlands are the rare, ancient groundwater-fed fens in 
Colorado's mountains, a preservation priority of Region 6 of the U.S. 
Fish and Wildlife Service (USFWS) since 1999.\7\ The USFWS explains 
that fens take thousands of years to develop, and essentially are 
irreplaceable. Fens also perform important hydrological and water 
quality functions. For example, rare native cutthroat trout often 
benefit from the water-cleansing action of fens in headwaters of 
streams. They also often possess unique biotic assemblages. For all 
these reasons, the USFWS mitigation goal for Colorado's mountain fens 
is no loss of existing habitat value. In other words, because of the 
irreplaceability of the type of habitat, every reasonable effort should 
be made to avoid impacting them. However, the 2020 Rule would have 
categorically excluded Colorado's mountain fens from Clean Water Act 
jurisdiction and permitting requirements.
---------------------------------------------------------------------------
    \6\ Colorado Parks and Wildlife, https://cpw.state.co.us/aboutus/
Pages/
Wetlands.aspx#::text=Why%20should%20you%20care%3F,lost%20half%20of%20it
s%20wetlands.
    \7\ US FWS Region 6, https://www.fws.gov/mountain-prairie/es/fen/
FWSRegion6FenPolicy
1999.pdf
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    Taking into account both isolated, non-floodplain wetlands and the 
various categories of floodplain wetlands that do not abut or have a 
clear surface water connection to perennial and intermittent streams, 
recent geospatial modeling estimates indicate that tens of millions of 
the nation's remaining wetlands could have lost Clean Water Act 
protections due to the 2020 Rule's insistence upon evidence of a 
surface water connection to a tributary in a ``typical year.'' \8\ The 
Revised Definition Rule's reversal of the 2020 Rule's roll-back of 
wetland jurisdiction is especially important at a time when climate 
change is driving long-term aridification of the Colorado River 
Basin.\9\ Given that reality, scientists began realizing more than a 
decade ago that comparing historic conditions to current or future ones 
is increasingly unreliable.\10\
---------------------------------------------------------------------------
    \8\ U.S. Fish and Wildlife Service, ``Status and Trends of Wetlands 
in the Conterminous United States 2004-2009,'' at 16, 37 (2009), 
available here.
    \9\ Overpeck and Udall, https://www.pnas.org/content/pnas/117/22/
11856.full.pdf
    \10\ Stationarity is dead, https://science.sciencemag.org/content/
319/5863/573.
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3. The Revised Definition Rule protects sizable, sustainable economic 
        activity.
    With the adoption of the Revised Definition Rule, the agencies also 
restored the important economic driver of healthy waters that includes 
the outdoor recreation economy, anglers, hunters, boaters, swimmers, 
other outdoor enthusiasts, commercial fisheries and the fishing 
industry. For example, as of 2020, an estimated 1.1 million people 
fished and 363,000 went hunting in Colorado,\11\ which delivered $3.28 
billion to the state's economy.\12\ In Colorado, recreation and tourism 
accounted for twice the amount of private earnings as extractive 
industries and employed more than five times as many people in 
2010.\13\
---------------------------------------------------------------------------
    \11\ Business for Water Stewardship, https://businessforwater.org/
wp-content/uploads/2020/06/Southwick-Technical-report-2020.pdf
    \12\ Colorado Parks & Wildlife, https://cpw.state.co.us/Documents/
Trails/SCORP/2017ColoradoOutdoorRecEconomy.pdf
    \13\ Benjamen Taber, Recreation in the Colorado River Basin: Is 
America's Playground Under Threat?, 2012 Colorado College State of the 
Rockies Report Card, at Fig's 2 and 3, accessible from: https://
www.coloradocollege.edu/dotAsset/c1d0b548-4350-4be7-b0a5-
8de6692b973b.pdf (accessed on May 17, 2021).
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                               Conclusion
    TU commended the EPA and ACOE for taking a significant step forward 
with a revised definition that is in line with the objectives of the 
Clean Water Act and is based on a compelling scientific and technical 
record. TU submits this written testimony for the record in support of 
the Revised Definition Rule and urges the Subcommittee to ensure that 
accurate information about the Rule is conveyed in the public discourse 
of the Rule, particularly about the Rule's clear protections for 
America's farmers and ranchers.
    Thank you for considering our views.
        Sincerely,
                                               Kate Miller,
                   Director of Government Affairs, Trout Unlimited.

    Mrs. Napolitano. A letter from the American Fisheries 
Society.
    Mr. Rouzer. Without objection.
    [The information follows:]

                                 
 Letter of February 7, 2023, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
  and Environment, from Douglas J. Austen, Ph.D., Executive Director, 
 American Fisheries Society, Submitted for the Record by Hon. Grace F. 
                               Napolitano
                                                  February 7, 2023.
Chairman David Rouzer,
U.S. House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Water 
        Resources and Environment, 2165 Rayburn House Office Building, 
        Washington, DC 20515.
Ranking Member Grace Napolitano,
U.S. House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Water 
        Resources and Environment, 2165 Rayburn House Office Building, 
        Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano:
    On behalf of the American Fisheries Society (AFS), thank you for 
the opportunity provide testimony on the impacts of the Biden 
Administration's Waters of the United States (WOTUS) rule (2023 Rule) 
published in the Federal Register on January 18, 2023.
    AFS is the world's oldest and largest professional society of 
fisheries and aquatic scientists and managers. The Society seeks to 
improve the conservation and sustainability of fisheries and aquatic 
ecosystems by advancing science and promoting the development of 
fisheries professionals. We greatly value the country's clean waters 
and healthy aquatic ecosystems as they are critical to maintaining 
fisheries and other critical ecosystem services such as supporting 
biodiversity, flood control, and carbon storage.
    The mandate of the Clean Water Act is to restore and maintain the 
chemical, physical, and biological integrity of the nation's waters. 
This can only be achieved if the definition of WOTUS is grounded in 
sound science that recognizes the multiple dimensions of waterbody 
connectivity: physical/hydrologic, chemical, and biological.
    AFS has long supported a science-based definition of WOTUS. The 
2023 Rule, seeks to balance the science with efficiency and provides 
additional clarity for implementation of the rule. We oppose returning 
to the 2020 Navigable Waters Protection (2020 NWPR) rule. The limited 
protections in the 2020 NWPR threaten highly valued fish, fisheries, 
ecosystem services, and the communities that rely on them (Colvin et 
al. 2019). The 2020 NWPR removes protections for millions of miles of 
headwater streams and millions of acres of wetlands and would result in 
severe ecological and economic losses and cause irreparable cultural 
and social damage (Cohen et al. 2016; Fesenmyer et. al. 2021; Creed et. 
al. 2017; Sullivan Declaration 2020.)
    More than a half century of scientific research demonstrates that 
the integrity of ``traditionally navigable'' waters fundamentally 
depends on tributaries--including headwater ephemeral, intermittent, 
and perennial streams--as well as many associated lakes, wetlands, and 
off-channel habitats (USEPA, 2015). Aquatic ecosystems depend upon 
transfers of chemical components, organisms, sediment, and organic 
materials among waterbodies to support the life in and around their 
shores. Without the safeguards of the Clean Water Act for these streams 
and wetlands, the ability of these waters to convey nutrients, provide 
pathways for migrating organisms such as fish and wildlife, and serve 
as a drainage and storage system for floodwaters is severely 
undermined.
    AFS fully supported the 2015 Clean Water Rule (2015 CWR) because it 
was based on the demonstrated importance of the many physical, 
chemical, and biological connections of headwaters to the ecological 
condition of downstream and downslope navigable waters and their biota. 
The 2015 CWR was informed by the best scientific information available 
as set forth in the comprehensive scientific report that accompanied 
the rule, i.e., the ``Connectivity of Streams and Wetlands to 
Downstream Waters: A Review and Synthesis of the Scientific Evidence'' 
(herein the ``Connectivity Report'' but described in the 2015 CWR as 
the ``Science Report''). The Connectivity Report synthesized over 1,200 
peer-reviewed publications and provided the technical basis for the 
2015 CWR. In the intervening years, interdisciplinary scientific 
efforts have further demonstrated the importance of protecting non-
permanent waterbodies, including intermittent and ephemeral headwater 
streams and wetlands that are hydrologically and biologically connected 
to navigable waters (e.g., Cohen et al. 2016, Rains, et al. 2016, Fritz 
et al. 2018, Harvey et al. 2018, Leibowitz et al. 2018, Schofield et 
al. 2018, Colvin et al. 2019).
    In contrast, the 2020 NWPR was not based on current science and 
reversed decades of protections that were put in place to ensure clean 
water would be available for future generations (Sullivan et al. 2019, 
Sullivan et al. 2020). The 2020 NWPR rule focused only on hydrological 
surface connections to establish jurisdiction. It ignored many key 
biological and chemical connections that are critical for fully 
functioning aquatic ecosystems. It only recognized a limited subset of 
connectivity conditions, and it relied on flow permanence and physical 
abutment as measures of jurisdiction. Hence, it arbitrarily ignored 
other ecologically critical aspects of physical connectivity such as 
bed, banks, and high-water marks, and chemical, biological and 
ecological connectivity that were incorporated in the 2015 CWR.
    The 2020 NWPR eliminated protections for a staggering number of 
headwater streams, which are broadly defined as portions of a river 
basin that contribute to the development and maintenance of downstream 
navigable waters including rivers, lakes, and oceans. Headwaters 
include wetlands outside of floodplains and small streams with 
permanent flow, intermittent flow, and ephemeral flows. Headwaters 
affect downstream and downslope streams and wetlands; that is, they are 
hydrologically, chemically, physically, biologically and ecologically 
connected to what happens downstream.
    Headwaters are key to the sustainability of fish stocks in both 
upstream and downstream waters and should be protected (Colvin et al., 
2019). The loss of Clean Water Act protections for headwaters would 
diminish ecosystem services provided by those waters, increase threats 
to imperiled species, impair commercial and recreational fisheries in 
both fresh and salt waters, and degrade fishes of great cultural value 
to Native Americans and the recreating public.
    Climate change will only exacerbate those losses. Aquatic resources 
in many states, particularly in the central and western U.S., are 
already stressed by overuse of water and extreme weather patterns. The 
reduction in groundwater has greatly impaired flow regimes, causing 
many streams to shift from perennial to intermittent or even ephemeral 
(Colvin et al., 2019). Under the 2020 NWPR rule, streams and playas may 
no longer be protected that were historically perennial but now have 
impaired flows because of groundwater depletion. Whereas water rights 
and use largely fall outside the jurisdiction of the Clean Water Act, 
the negative impacts of unregulated dredge and fill within those 
streams and playas would amplify the current stresses faced by aquatic 
ecosystems and further reduce the potential for habitat recovery. Such 
cumulative impacts increase the likelihood of future listings and 
extinctions of fish, amphibians and waterfowl, thereby jeopardizing the 
ecological integrity and function of our waters.
    In addition to the loss of protection for headwaters, the 2020 NWPR 
seeks to eliminate protections for wetlands that do not abut or have a 
direct hydrologic surface connection to other WOTUS. Wetlands provide 
essential ecosystem services such as protection of drinking water 
quantity and quality, provision of floodwater and carbon storage, storm 
damage mitigation, resilience against sea-level rise and drought, and 
essential fish, shellfish, waterfowl, and wildlife habitat. Wetland 
loss in some regions of the U.S. already approaches or exceeds 85 
percent. As documented in the Connectivity Report, wetlands that 
neighbor other WOTUS, but are not necessarily abutting or having a 
direct hydrologic surface connection in a typical year, often exhibit 
functional connections with other WOTUS, and should be protected. These 
waters equal the size of West Virginia and the loss of ecosystem 
services they provide would be staggering.
    The 2023 Rule is a vast improvement over the 2020 NWPR and 
represents a step forward in protecting our Nation's waters and the 
critical ecosystem services they provide for people and the 
environment. It appropriately recognizes that science is complex and 
cannot be ignored for the convenience of administering the Clean Water 
Act. The 2023 Rule addresses the major flaws with the 2020 NWPR, seeks 
to balance the science with efficiency, and provides additional clarity 
for implementation. It considers the science as established in the 
Connectivity Report as well as more recent research on waterbody 
connectivity. Further, the 2023 Rule takes a first step at addressing 
climate change in the context of federal water protection. Notably, the 
2023 Rule states that science does not provide bright lines relative to 
defining a specific distance required for adjacency, and clearly 
outlines those waters that constitute exclusions from jurisdiction. The 
2023 Rule defines the geographic scope (i.e., in the region) for 
purposes of significant nexus analysis. It also clarifies that wetland 
complexes (i.e., two or more individual wetland areas that are 
functionally related and geographically clustered) are to be considered 
in the aggregate.
    To more fully protect aquatic resources, we recommend that future 
rule revisions provide protections to ensure chemical and biological 
connectivity as well as groundwater protections.
    In closing, we urge you to uphold the 2023 Rule and not return to 
the 2020 NWPR for the significant harm it would cause to wildlife, 
fish, fisheries and the communities that rely on them. Thank you for 
the opportunity to comment. We are willing to assist should you need 
additional information or consultation.
        Sincerely,
                                  Douglas J. Austen, Ph.D.,
                    Executive Director, American Fisheries Society.
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    Mrs. Napolitano. That is it. Thank you.
    Mr. Rouzer. I thank the gentlelady.
    As a reminder, for documents submitted into the record, we 
would ask that you also please email those documents to 
[email protected]. Again, that is DocumentsTI@
mail.house.gov.
    I would now like to welcome our witnesses and thank them 
for being here today. Mr. Garrett Hawkins, president of the 
Missouri Farm Bureau. Ms. Alicia Huey, chairman of the National 
Association of Home Builders. Mr. Mark Williams, environmental 
manager, Luck Companies, on behalf of the National Stone, Sand 
& Gravel Association. Ms. Susan Parker Bodine, partner, Earth & 
Water Law LLC. And Mr. Dave Owen, professor of law and faculty 
director of scholarly publications, UC College of Law, San 
Francisco.
    Thank you all for coming. We appreciate the opportunity to 
hear from you today.
    As you know, when the light hits yellow, that means to wind 
it down. We ask that you keep your testimony as close as you 
can to 5 minutes. If you run over 5 minutes, I will have to 
shut you down, and I don't want to do that. So, try to keep it 
within the time limit.
    Mr. Chairman, did you have anything you would like to 
mention?
    Mr. Graves of Missouri. Yes. Thanks for giving me just a 
second to thank Garrett Hawkins for being here. Garrett is the 
president of the Missouri Farm Bureau. Before he was elected to 
lead the Farm Bureau in our great State, he was the deputy 
director of agriculture in Missouri, and he served with Farm 
Bureau as the director of all national legislative programs.
    So, he has been working with farmers and ranchers from all 
across Missouri, and for that matter, from across the country, 
when it comes to regulatory issues, including WOTUS, for almost 
20 years, I believe.
    So, I do appreciate you making the trip out here, and 
thanks for being here. I look forward to hearing what you have 
to say.
    Mr. Rouzer. I ask unanimous consent that the witnesses' 
full statements be included in the record.
    Without objection, so ordered.
    So, now we will start with Mr. Hawkins.
    You are recognized for 5 minutes for your testimony.

TESTIMONY OF GARRETT HAWKINS, PRESIDENT, MISSOURI FARM BUREAU; 
  ALICIA HUEY, CHAIRMAN OF THE BOARD, NATIONAL ASSOCIATION OF 
   HOME BUILDERS; MARK WILLIAMS, ENVIRONMENTAL MANAGER, LUCK 
   COMPANIES, ON BEHALF OF THE NATIONAL STONE, SAND & GRAVEL 
 ASSOCIATION; SUSAN PARKER BODINE, PARTNER, EARTH & WATER LAW 
 LLC; AND DAVE OWEN, HARRY D. SUNDERLAND PROFESSOR OF LAW AND 
   FACULTY DIRECTOR OF SCHOLARLY PUBLICATIONS, UNIVERSITY OF 
            CALIFORNIA COLLEGE OF LAW, SAN FRANCISCO

 TESTIMONY OF GARRETT HAWKINS, PRESIDENT, MISSOURI FARM BUREAU

    Mr. Hawkins. Well, thank you, Chairman Graves, for your 
leadership and your kind words.
    Chairman Rouzer and Ranking Member Napolitano, thank for 
the opportunity to testify today.
    My name is Garrett Hawkins, and I serve as president of the 
Missouri Farm Bureau. I am a fifth-generation farmer, a 
cattleman to be specific, from Appleton City, Missouri.
    It is an honor to represent the American Farm Bureau 
Federation, and I speak on behalf of thousands of farm and 
ranch families, hard-working farm and ranch families, that 
produce the food, fiber, and renewable fuel that our Nation and 
our world depend upon.
    For farmers and ranchers, our livelihood depends on healthy 
soils and clean water. We support the Clean Water Act. However, 
the vagueness of where jurisdictional lines lie has created 
confusion for landowners.
    Unfortunately, we have experienced uncertainty for decades 
due to ever-changing rulemakings that redefine the Clean Water 
Act's scope. As a result, landowners, small businesses, and 
American families are the ones who have suffered the most.
    The definition of WOTUS is critically important to farmers 
and ranchers, which is why we have participated in numerous 
rulemakings, legislation, and litigation on this issue for 
decades.
    Unfortunately, our members are extremely disappointed by 
the Biden administration's new WOTUS rule.
    The new rule will greatly expand the Federal Government's 
reach over private property by allowing them to assert 
jurisdiction over ephemeral drainages, such as ditches, swales, 
and low spots on a farm field. The use of the ``significant 
nexus'' test allows the agencies to aggregate waters together. 
And the reliance on the vague terms provides the agencies the 
latitude to reach whatever conclusion they please.
    It is impossible for any farmer to know if a feature on 
their property is a WOTUS.
    Considering these features as jurisdictional waters opens 
up the potential for regulation of activities that move dirt or 
apply products to the land. Everyday farm and ranch activity, 
such as tillage, planting, or even fence building in or near 
these features, could trigger the Clean Water Act's harsh civil 
or even criminal penalties unless a permit is obtained.
    As an example, in Missouri, under the pre-2015 regulatory 
regime, EPA sent a threatening letter to a landowner which 
included severe fines and mitigation requirements because he 
was simply trying to save his property from eroding by placing 
rock along his streambank.
    This is a classic case of heavy-handed punitive action 
against a landowner as EPA claimed jurisdiction on the small 
creek that ran through his property. They asserted the creek 
had a significant nexus to the Mississippi River via two other 
connecting rivers.
    To add insult to injury, the agencies claim the costs 
associated with this rule are de minimis. This conclusion can 
only be made by failing to consider the entire gamut of costs 
that landowners will incur.
    One must consider not only the cost of the permit, but also 
the expenses for experts needed to navigate the process, such 
as environmental consultants, attorneys, and engineers. You 
must also consider the cost of mitigation and project delays, 
which makes the process beyond the means of many.
    One of the most important factors in the WOTUS debate 
centers around a highly consequential legal case that is 
currently being considered before the Supreme Court, Sackett v. 
EPA. This case should inform the agencies of the proper scope 
of a WOTUS definition. Finalizing this rule injects only more 
uncertainty for the regulated community.
    The American Farm Bureau, Missouri Farm Bureau, numerous 
other organizations, and over 200 Members of Congress urge the 
agencies to halt this rulemaking because of this. It defies 
logic that the agencies would go ahead with the development of 
this rule knowing that a directive from the Supreme Court will 
be handed down imminently.
    Farmers and ranchers are extremely frustrated that our 
concerns were not recognized in the final rule. This new rule 
will create more confusion for landowners and will harm 
important economic drivers that benefit our communities. This 
unnecessary regulatory redtape places a burden on farmers and 
ranchers while stripping the States of their regulatory role.
    Thank you for the opportunity to share our perspective on 
this important issue. And I want to stress again that we as 
farmers support clean water, but we also need a clear rule.
    I look forward to taking your questions.
    [Mr. Hawkins' prepared statement follows:]

                                 
 Prepared Statement of Garrett Hawkins, President, Missouri Farm Bureau
    Chairman Rouzer and Ranking Member Napolitano, thank you for the 
opportunity to testify today. My name is Garrett Hawkins and I serve as 
President of Missouri Farm Bureau (MOFB). I am a fifth-generation 
farmer from Appleton City, Missouri, and the third generation in my 
family to own and operate the farm on which we live today. Agriculture 
runs deep in our extended family and spans livestock, row crop, and 
dairy production. It is an honor to be here representing the thousands 
of hard-working farm and ranch families that produce the abundant food, 
fiber, and renewable fuel that our nation and the world depend on.
    The American Farm Bureau Federation (AFBF) is the Voice of 
Agriculture and no one cares more deeply about the health of our 
environment than our members--the nation's hardworking farm and ranch 
families. Unlike many other industry sectors, the livelihood of our 
businesses depends on healthy soils and clean water. We support the 
objectives of federal environmental statutes such as the Clean Water 
Act (CWA), however the ambiguity of where the line between federal and 
state jurisdiction lies has created confusion for landowners. 
Unfortunately, we have lived in a world of regulatory uncertainty for 
decades due to everchanging rulemakings that redefine the scope of the 
CWA. We have seen WOTUS definitions change with each Administration, 
guidance documents offered and then rescinded and confusing litigation 
that have provided more questions than answers. Landowners, small 
businesses, and American families are the ones who suffer the most.
    Once again, the Environmental Protection Agency and the U.S. Army 
Corps of Engineers (the Agencies) have finalized a new regulatory 
definition of ``waters of the United States'' (WOTUS) that greatly 
expands the federal government's role in regulating land use. I am 
pleased to share my perspective as a farmer on this rule and its 
potential impact on agricultural producers all across the nation.
The New WOTUS Rule Will Profoundly Affect Everyday Farming and Ranching 
                              Activities.
    The definition of WOTUS is critically important to farmers and 
ranchers across the country, which is why AFBF and state Farm Bureaus 
have participated in numerous rulemakings, legislative proceedings and 
litigation on this issue for decades. Farming and ranching are water-
dependent enterprises. Whether they are growing plants or raising 
animals, farmers and ranchers need water. For this reason, farming and 
ranching tends to occur on lands where there is either plentiful 
rainfall or adequate water available for irrigation. There are many 
features on those lands that are wet only when it rains and that may be 
miles from the nearest ``navigable'' water. Farmers and ranchers regard 
these features as simply low spots on their land.
    Additionally, many farm and ranch operations rely on ponds used for 
purposes such as livestock watering, providing irrigation water, or 
settling and filtering farm runoff. Irrigation ditches also carry 
flowing water to fields throughout the growing season as farmers and 
ranchers open and close irrigation gates to allow water to reach 
particular fields. These irrigation ditches are typically close to 
larger sources of water, irrigation canals, or actual navigable waters 
that are the source of irrigation water--and they channel return flows 
back to these source waters. In short, America's farm and ranch lands 
are an intricate maze of ditches, ponds, wetlands, and so-called 
``ephemeral'' drainages.
    Considering these features as jurisdictional ``waters'' opens up 
the potential for regulation of activities on those lands that move 
dirt or apply products to the land. Everyday activities such as 
tillage, planting, or fence building in or near ephemeral drainages, 
ditches, or low spots could trigger the CWA's harsh civil or even 
criminal penalties unless a permit is obtained. Farmers need to apply 
weed, insect, and disease control products to protect their crops. 
Fertilizer application is another necessary and beneficial aspect of 
many farming operations that is nonetheless swept into the CWA's broad 
scope (even organic fertilizer, i.e., manure). 40 C.F.R. Sec.  122.2 
(defining ``pollutant''). On much of our most productive farmlands 
(i.e., areas with plenty of rain), it would be extremely difficult to 
avoid entirely the small wetlands, ephemeral drainages, and ditches in 
and around farm fields when applying crop protection products and 
fertilizer. And yet, permits could also be required for those 
activities, and even accidental deposition would be unlawful, even when 
those features are completely dry and even harder to differentiate from 
the rest of the fields.
    The tens of thousands of dollars in additional costs for federal 
permitting of ordinary farming activities are beyond the means of many 
small business farmers and ranchers. And even those farmers and 
ranchers who can afford it should not be forced to wait months, or even 
years, for a federal permit to till, plant, fertilize, or carry out any 
of the other ordinary farming and ranching activities on their lands. 
For all of these reasons, farmers and ranchers have a keen interest in 
how WOTUS is defined.
    Unfortunately, our members are disappointed by the Agencies' final 
rule. We feel strongly that the Navigable Waters Protection Rule (NWPR) 
was a clear, defensible rule that appropriately balanced the objective, 
goals, and policies of the CWA. The Agencies should have kept the NWPR 
in place, rather than revert to definitions of WOTUS that test the 
limits of federal authority under the Commerce Clause and are not 
necessary to protect the nation's water resources. The agencies can 
ensure clean water for all Americans through a blend of the CWA's 
regulatory and non-regulatory approaches, just as Congress intended. It 
is unnecessary (and unlawful) to define non-navigable, intrastate, 
mostly dry features that are far removed from navigable waters as 
``waters of the United States.''
   The Rule Thrusts Farmers and Ranchers Back Into a World of Costly 
                     Uncertainty and Inconsistency.
    The 2015 WOTUS Rule dramatically expanded the scope of CWA 
jurisdiction over land used for normal farming and ranching activities. 
The 2022 Rule is different only in degree and timing, not kind. The 
Agencies aggregation policy potentially allows them to assert 
jurisdiction over any sometimes-wet feature which, taken together with 
other sometimes-wet features in the region (broadly defined), have what 
the Agencies consider to be a ``significant nexus'' on a ``foundational 
water.'' But the term ``significant nexus'' generated significant 
confusion and inconsistent results under the pre-2015 regime, and this 
rule is likely to only make things worse. Furthermore, the process to 
arrive at a jurisdictional determination is tortuous and costly. A 
jurisdictional determination could take between six months and a year 
to receive, and in the meantime a farmer or rancher is stuck in limbo. 
Adding insult to injury, the use of case-by-case determinations 
threatens to create a seriously unequal playing field, where identical 
features may be viewed as jurisdictional or not depending upon where 
the property is located. This is not a dependable, durable, or clear 
rule. Rather, the Agencies have set up a system that is based in 
arbitrary, interpretation-based decision-making. Furthermore, it is 
unclear whether or not the Agencies are equipped to respond to these 
determinations in a timely manner, increasing the potential for long 
wait times as farmers and ranchers are forced to comply.
    Perversely, the Agencies' broad assertion of jurisdiction can make 
it more difficult for farmers and ranchers to engage in soil 
conservation activities. Farmers and ranchers have more incentive than 
most to preserve topsoil on their land; as such, where land is at risk 
of erosion, they may want to engage in mitigation activities. Farmers 
and ranchers also often take on projects that provide stormwater 
management, wildlife habitat, flood control, and nutrient processing 
and improve overall water quality in uplands and ephemeral features. 
But, if they cannot do this without applying for a federal permit, it 
may be cost-prohibitive, resulting in environmental degradation, not 
protection.
    This rule threatens to impede farmers' and ranchers' ability to 
provide safe, affordable, and abundant food, fuel, and fiber to the 
citizens of this nation and the world. Their concerns are not 
hyperbole, nor are they isolated occurrences. They are lived 
experiences illustrating the pitfalls of returning to an overly 
expansive definition of ``waters of the United States'' and, 
specifically, an outsized view of what it means for a water to have a 
``significant nexus.''
   The Significant Nexus Standard May Lead To Potentially Unlimited 
                             Jurisdiction.
    While the Agencies have resisted the urge to categorically regulate 
all tributaries and adjacent waters like they did in the 2015 Rule, the 
case-by-case approach that they use in this WOTUS rule is no less of an 
overreach. The Agencies once again resurrect the same broad and 
confusing significant nexus standard that was the foundation for the 
2015 Rule. It is clear the Agencies will just expand their jurisdiction 
one watershed at a time, instead of by general fiat--but it is only a 
matter of time until the Agencies will find a significant nexus. This 
domino effect illustrates the almost limitless jurisdiction that the 
Agencies have over private property.
    The significant nexus test can be used to assert jurisdiction over 
tributaries, adjacent wetlands, and basically any ``other water'' 
because the rule uses undefined, amorphous terms like ``similarly 
situated,'' ``in the region'' and ``material influence'' that will 
leave farmers and ranchers guessing about whether waters on their lands 
are WOTUS. This suggests that regulators can manipulate the standard to 
reach whatever outcomes they please and that farmers and ranchers may 
not know the outcomes until they are already exposed to civil and 
criminal liability, including devastating penalties. As an example, in 
Missouri, under the pre-2015 regulatory regime, EPA sent a threatening 
letter to a landowner, which included fines and mitigation 
requirements, because he was simply trying to save his property from 
eroding by placing rock along his streambank. This is a classic case of 
heavy-handed, punitive action against a landowner as EPA claimed 
jurisdiction on the small creek that ran through his property, as it 
asserted the creek had a ``significant nexus'' to the Mississippi River 
via two other connecting rivers.
    Because of the subjective nature of the significant nexus test, it 
all but guarantees that regulators' assessments are bound to vary from 
field-office to field-office and case to case. This approach does not 
give ordinary farmers and ranchers fair notice of when the CWA actually 
applies to their lands or conduct, nor does it provide any assurance 
against arbitrary or discriminatory enforcement. For these reasons, 
this rulemaking is unconstitutionally vague.
   The Case-By-Case Regulation of Ephemeral Drainages Is Unnecessary.
    Much of where we disagree comes down to one classification of 
``waters'': ephemeral drainage features. As previously mentioned, 
ephemeral drainages are dry land--they are not flowing rivers or 
streams. It is simply shocking to property owners to hear that a 
``tributary'' can be interpreted to reach ephemerals and sweep in many 
features that look just like land. The NWPR provided important 
clarification regarding the status of ephemeral streams that flowed 
only in response to precipitation by correctly concluding that they 
were not WOTUS. The Agencies' rapid about-face in this rulemaking is 
disappointing, to say the least.
    The Agencies set off on the wrong foot by failing to define 
tributary in the first place. The lack of a definition of tributary 
with measurable criteria results in significant vagueness and fairness 
concerns, especially where the application of ``tributary'' could 
substantially expand or limit the scope of jurisdiction under the CWA.
    By failing to provide clarity, the Agencies are forcing farmers to 
either: (1) presume that an ephemeral drainage that carries water only 
when it rains will be deemed a jurisdictional tributary, (2) seek a 
jurisdictional determination from the Corps, or (3) take a chance that 
their activities near or in such features may result in unlawful 
discharges carrying civil penalties of nearly $60,000 a day.\1\ Even 
worse, a farmer could face criminal liability with jail time and up to 
$100,000 a day in fines. With such stiff statutory penalties at stake--
including the loss of one's own personal liberty--farmers and ranchers 
deserve more clarity.
---------------------------------------------------------------------------
    \1\ See 87 Fed. Reg. 1,676, 1,678 (Jan. 12, 2022).
---------------------------------------------------------------------------
    Ultimately, the question is not whether tributaries or ephemeral 
streams are ``important'' or may as a scientific matter have some 
connection with downstream navigable waters; rather, the question is 
whether they should be considered as falling within the bounds of 
federal jurisdiction. As with so many other categories in the 
rulemaking, the agencies collapse that distinction. The NWPR was 
correct to exclude ephemeral streams categorically, and the Agencies 
are wrong to dismiss that approach.
The Adjacency Category Should Be Limited to Wetlands that Directly Abut 
                              Other WOTUS.
    The adjacency category is also rife with confusion. First, the 
rule's approach to ``relatively permanent'' is not consistent with the 
plurality's opinion in Rapanos v. United States, 547 U.S. 715 (2006), 
because the Agencies deprive the Court's requirement for a 
``continuous'' connection of all meaning by turning it into a mere 
``physical connection or ecological connection'' test. Further, the 
criteria for establishing whether a wetland is ``adjacent''--such as 
whether a ``shallow'' subsurface connection exists or whether wetlands 
are in reasonably close proximity to a jurisdictional water--stray too 
far from the plurality's test in Rapanos and raise vagueness and fair 
notice concerns.
    We also oppose the significant nexus approach to adjacent wetlands 
used in this rule. The Agencies' approach of aggregating wetlands is 
flatly contrary to Justice Kennedy's requirement that each wetland be 
judged in its own right to determine whether it (and it alone) bears a 
significant nexus to traditional navigable waters. This approach 
expands the reach of the significant nexus test even farther and is 
even less clearly implementable.
    We believe that the Agencies should assert jurisdiction over only 
those wetlands that are directly abutting ``waters of the United 
States;'' which would provide much needed clarity that is capable of 
easy application in the field. Only those wetlands that directly touch 
``waters of the United States'' should be considered ``adjacent.''
    The Broad Sweep of the ``Other Waters'' Category is Problematic
    The most obvious example of the rule's expansion of regulatory 
reach lies in the ``other waters'' category. This new category would 
reach many intrastate, non-navigable water features that would be 
considered ``isolated.''
    Worse still is the rule's application of the significant nexus 
standard to ``other waters,'' not least because, if that standard is 
ever to be applied, it should be to wetlands, and wetlands only. 
Applying the significant nexus standard elsewhere allows the Agencies 
to aggregate all similarly situated ``other waters'' (e.g., prairie 
potholes or ponds that are not part of a tributary system) across an 
entire watershed and claim jurisdiction over all such features based on 
a finding that they collectively perform a single important function 
for a downstream ``foundational'' water. This is plainly not what 
Congress intended, and not what the Supreme Court would allow. Through 
this rule, countless small wetlands or other small waters that are far 
removed from traditional navigable waters (including ephemeral 
tributaries and ditches) or coast nevertheless will be potentially 
within the scope of federal jurisdiction.
    The Agencies should have withdrawn the ``other waters'' category. 
Their ability to aggregate waters together will greatly expand the 
federal reach and it will be absolutely impossible for any farmer or 
rancher to know if a jurisdictional ``other water'' is located on their 
property.
                 The Exemptions Are Challenging to Use
Ditch Exclusion:
    Ditches and similar water features commonly found on farms that are 
used to collect, convey, or retain water should be excluded from the 
definition of ``waters of the United States.'' Without adequate 
drainage, farmlands could remain saturated after rain events and unable 
to provide adequate aeration for crop root development. Drainage 
ditches and other water management structures can help increase crop 
yields and ensure better field conditions for timely planting and 
harvesting. In areas without sufficient rainfall, irrigation ditches 
and canals are needed to connect fields to water supplies and to 
collect and convey water that leaves fields after irrigation. Put 
simply, ditches are vitally important to support American agriculture 
and ultimately, to feed the growing population.
    While this rule does provide a ditch exclusion, unfortunately, it 
is not particularly meaningful because it is limited to features 
constructed on dry land or upland. Because these features are 
constructed to store water, it would not typically be useful for them 
to be constructed along the tops of ridges, for example. Rather, often 
the only rational place to construct a ditch or a farm or stock pond is 
in a naturally low area to capture stormwater that enters the ditch or 
pond through sheet flow and ephemeral drainages. Depending on the 
topography of a given patch of land, ditch or pond construction may be 
infeasible without some excavation in a natural ephemeral drainage or a 
low area with wetland characteristics.
Prior Converted Cropland Exclusion:
    America's farmers and ranchers support the 2023 Rule's maintaining 
of the decades-old exclusion for prior converted croplands (``PCC''), 
of which there are approximately 53 million acres in the United States. 
Farmers and ranchers across the country rely on this critical exclusion 
which establishes that PCC may be used for any purposes, so long as 
wetland conditions have not returned. In practice, however, numerous 
issues have arisen regarding the interpretation and application of the 
PCC exclusion. For this reason, we have long advocated for a clear, 
commonsense definition and clarification of PCC in the Agencies' 
regulations. We welcomed the NWPR's approach to PCC and are 
disappointed to see that this rule fails to carry forward the NWPR's 
definition of PCC, which was designed to improve clarity and 
consistency. For example, the lack of a clear definition of PCC has 
presented problems in the past regarding when PCC can be ``recaptured'' 
and treated as jurisdictional.
    The Agencies failed to acknowledge our strong opposition to the 
application of USDA's ``change in use'' principle. Additionally, they 
have failed to clearly convey if PCC that is shifted to non-
agricultural use becomes subject to CWA jurisdiction. We have presented 
these questions to both EPA and Corps officials and have received 
completely different answers. Incorporating a ``change in use'' policy 
into the PCC exclusion would upend nearly 30 years of largely 
consistent implementation in accordance with the 1993 Rule. While we 
acknowledge that the Agencies have attempted to make constructive 
changes, the result fell well short of that goal.
             Real World Impacts of An Expansive WOTUS Rule
    The Agencies claim that the costs associated with this rule are de 
minimis. This conclusion can only be reached by failing to consider the 
entire gamut of costs that landowners will incur. One must consider not 
only the cost of the permit, but also the expenses for experts needed 
to navigate the permitting process--such as environmental consultants, 
attorneys and engineers. You must also consider the cost of mitigation 
and project delays, which can be exorbitant and makes the process 
simply untenable for many. These costs can amount to a $500/acre or 
greater decrease in value of the land. Mitigation costs to proceed with 
development could reach thousands of dollars per linear foot. 
Additionally, CWA compliance may also trigger review under other 
federal environmental statutes, such as the Endangered Species Act and 
the National Historic Preservation Act. Many small businesses are 
unable to take on these additional costs and they have no choice but to 
pass it on to their customers. Expansive regulatory actions like this 
new WOTUS definition will exacerbate the affordability challenges that 
plague many American families. This rule puts us further away from the 
goal of providing affordable and accessible food, housing and energy.
    The Rule Fails to Respect the States' Role in Protecting Waters
    Additionally, the rule completely usurps the states' role in 
protecting our nation's waters. While many aspects of the CWA are 
unclear, one area of certainty is that Congress intended for the states 
to play an important role in regulating land within their borders. The 
objective of the CWA detailed in section 101B explains that 
environmental protections are a shared responsibility between the 
federal government and state governments. This language only solidifies 
the notion that there is a point where federal jurisdiction ends and 
state jurisdiction begins. However, this newly finalized WOTUS rule 
would greatly expand the federal government's role, effectively cutting 
against Congressional intent under the CWA. It is our belief that the 
states should retain the authority to protect ephemeral features, not 
the federal government.
                         No WOTUS Before SCOTUS
    One of the most important factors in the WOTUS debate centers 
around a highly consequential legal case that is currently being 
considered before the Supreme Court: Sackett v. EPA. It is undeniable 
that this case has the potential to inject great certainty into the new 
WOTUS definition. The question before the High Court is whether the 
Army Corps can use the significant nexus test to assert jurisdiction. 
Given all of the legitimate legal concerns associated with this 
regulatory test, there is a strong likelihood that the Court will 
prevent the Agencies from using it. It defies logic that the Agencies 
would go ahead with the development of this rule, knowing that a 
directive from the Supreme Court will be handed down imminently. 
Considerable government resources have been expended to craft this 
rule, which will only be wasted when the Agencies have to return to the 
drawing board after a decision is handed down. Additionally, 
introducing a new regulatory definition, to an already convoluted 
compliance process, is harmful to the regulated community. We must now 
adapt to these new and confusing rules and our ability to plan any 
future business development will be hindered. Simply put, the Agencies 
should have waited until a decision was handed down before finalizing 
this rule.
                               Conclusion
    Our nation's farmers and ranchers are very frustrated that our 
concerns were not recognized in the finalized rule. Retaining the NWPR 
would have been a far preferable alternative, given the certainty and 
predictability it provided. This new rule will only create more 
confusion for landowners and will inevitably slow down many of the 
important economic drivers that benefit our communities. This 
unnecessary regulatory red-tape places a burden on our nation's farmers 
and ranchers while stripping the states of their historic regulatory 
role. Farmers and ranchers want clean water and clear rules, so they 
can remain focused on what they do best--providing food, fiber and 
renewable fuel for our nation and the world.

    Mr. Rouzer. I thank the gentleman. And right on time.
    Ms. Huey, 5 minutes.

   TESTIMONY OF ALICIA HUEY, CHAIRMAN OF THE BOARD, NATIONAL 
                  ASSOCIATION OF HOME BUILDERS

    Ms. Huey. Thank you, Chairman Rouzer and Ranking Member 
Napolitano and members of this committee. On behalf of more 
than 140,000 members of the National Association of Home 
Builders, I appreciate the opportunity to testify on the 
impacts to the home building industry on the recent rule of 
waters of the U.S.
    My name is Alicia Huey. I am president of AGH Homes, Inc., 
a custom builder and developer for over 30 years near 
Birmingham, Alabama. I serve as chairman of the NAHB board of 
directors.
    I had the opportunity to participate in the agencies' WOTUS 
outreach. I recommended they avoid cumbersome jurisdictional 
concepts like the ``significant nexus'' test and provide 
clarity and certainty to the home building industry.
    After seeing the rule, I know the agencies ignored my 
advice.
    It is difficult to overstate the impact of regulations on 
housing affordability. An NAHB study found that government 
regulations from Federal, State, and local governments account 
for up to 25 percent of the price of a new single-family home 
and over 40 percent of multifamily development.
    Further, for every $1,000 increase in a median-priced home, 
it will price out over 117,000 households.
    Creating lots and building homes requires substantial 
earth-moving activity. It has never been easy for builders or 
land developers to tell if their activities may impact a WOTUS 
and therefore require a Federal permit.
    Home building activities are unique, and they are regulated 
twice under the Clean Water Act. Permitting requirements for 
controlling stormwater discharges and fill are triggered when 
those activities impact a WOTUS.
    Homebuilders rely on a timely and consistent jurisdictional 
determination process to know when they need to get a permit.
    A clear definition of WOTUS that bases Federal jurisdiction 
upon observable landscape features is essential for small 
homebuilders. The rule's reliance upon the ``significant 
nexus'' test during the JD process falls short of providing the 
clarity and certainty the home building industry needs.
    The ``significant nexus'' test requires a Federal regulator 
to perform a case-by-case analysis on all nonnavigable isolated 
ephemeral waters before issuing the homebuilder a JD.
    As Federal authority over private property increases, so do 
bureaucratic delays for homebuilders awaiting JDs while Federal 
permitting requirements increase. Our members are experiencing 
6- to 12-month delays in securing JDs, particularly when their 
water requires a ``significant nexus'' test. This is in 
addition to significant delays during the permit process.
    Living under a regulatory regime that relies on the 
``significant nexus'' test and determinations from an unelected 
bureaucrat will make home building inefficient and costly.
    Home building is most often financed using loans. During 
the highest inflationary period that our country has seen in 
over 40 years, we are being asked to float our finances while 
we wait for a decision under the ``significant nexus'' test. 
These delays cost real money and directly impact the cost of 
housing.
    Unfortunately, homebuilders need to rely on the agencies 
for answers or be required to pay tens of thousands of dollars 
to consultants to help us comply with the Clean Water Act. 
These consultant fees are being passed down to the home buyers 
and renters.
    Under that rule, homebuilders knew which waters were 
jurisdictional just by walking the land. A Navigable Waters 
Protection Rule removed the need for hiring consultants because 
it excluded waters that lacked relatively permanent flow and 
eliminated the ``significant nexus'' test. The new rule does 
not add new protections for our Nation's water resources but 
inappropriately expands the Government's authority over 
isolated and ephemeral waters.
    The agencies suggest the rule provides clarity. However, it 
produces more questions. The rule allows the agencies to 
illegally take the easy way out by sweeping everything under 
Federal authority.
    If the agencies are interested in developing a meaningful 
and balanced rule, they must take a more methodical and 
sensible approach. The agencies are gaining more authority than 
the Clean Water Act gives them, and our members must comply to 
keep the process moving.
    Lastly, I want to thank Chairmen Graves and Rouzer for 
introducing the CRA to reverse the Biden WOTUS rule. Until that 
is enacted, I encourage Congress to direct the agencies to 
delay the implementation of this rule until the Supreme Court 
rules on Sackett v. EPA. NAHB believes there should be no WOTUS 
before SCOTUS.
    Thank you for the opportunity to testify, and I look 
forward to answering your questions.
    [Ms. Huey's prepared statement follows:]

                                 
  Prepared Statement of Alicia Huey, Chairman of the Board, National 
                      Association of Home Builders
    Chairman Rouzer, Ranking Member Napolitano, and members of the 
subcommittee, on behalf of the more than 140,000 members of the 
National Association of Home Builders (NAHB), I appreciate the 
opportunity to testify today. My name is Alicia Huey and I am the 
president of AGH Homes, Inc., a custom home building company I founded 
in 2000. I have been a developer for over 30 years near Birmingham, 
Alabama and was just sworn in as NAHB's Chairman of the Board.
    NAHB members are involved in the home building, remodeling, 
multifamily construction, land development, property management, 
subcontracting and light commercial construction industries. Our 
industry is primarily dominated by small businesses, with our average 
builder member employing 11 employees. Since the Association's 
inception in 1942, NAHB's primary goal has been to ensure that housing 
is a national priority and that all Americans have access to safe, 
decent and affordable housing, whether they buy or rent a home.
    NAHB members are strong stewards of the environment; we recognize 
the need for clean and sustainable communities that benefit our 
residents and potential home buyers. NAHB members are vested in 
preserving and protecting our nation's land and water resources. Since 
its inception in 1972, the Clean Water Act (CWA) has helped to make 
significant strides in improving the quality of our water resources and 
our lives. As environmental stewards, the nation's home builders build 
neighborhoods and help create thriving communities while maintaining, 
protecting, and enhancing our natural resources, including our lakes, 
rivers, ponds, and streams. Creating lots and building homes involves 
substantial amount of earth-moving activities.
    Because the U.S. Environmental Protection Agency and the U.S. Army 
Corps of Engineers (hereafter ``the agencies'') have historically 
asserted broad federal jurisdiction over ``waters of the US'' 
(hereafter ``WOTUS'') under the CWA, NAHB members must often obtain CWA 
permits to address stormwater, and wetlands impacts to complete their 
land development and home building projects. What is most important to 
these compliance efforts is a CWA regulatory definition of WOTUS that 
is consistently applied, predictable, timely, and focused on protecting 
actual aquatic resources. Or as our friends at the American Farm Bureau 
Federation describe, the agencies' goal when crafting a regulatory 
definition of WOTUS should be clean water and clear rules. Having a 
clearly understandable WOTUS regulatory definition empowers landowners 
to know when their activities require CWA permits and when the 
activities do not require CWA permits. Unfortunately, establishing a 
clear regulatory definition of WOTUS is becoming increasingly elusive.
    In addition to federal mandates under the CWA, most builders and 
developers must also comply with a myriad of state and local 
environmental requirements designed to protect water quality and 
natural resources and promote conservation. For example, half of the 
states protect waterbodies and wetlands more broadly than required 
under the CWA, and twenty-three states have explicit regulatory 
authority to issue permits for dredge and fill activities in 
wetlands.\1\ Further, many local governments have adopted wetlands 
protection ordinances and regulations that offer additional 
protections.\2\ Beyond complying with these federal, state, and local 
mandates, NAHB members regularly make property purchase decisions and 
design, site, and develop their projects to avoid impacting and 
preserving sensitive areas and seek to showcase natural resources as 
important project amenities. For most of the last two decades, builders 
and developers have faced constantly changing regulatory definitions of 
WOTUS, making our decisions, including project financing, land 
acquisitions, project design, land development, and homebuilding 
activities exceedingly difficult.
---------------------------------------------------------------------------
    \1\ Environmental Law Institute, State Constraints: State-Imposed 
Limitations on the Authority of Agencies to Regulate Waters Beyond the 
Scope of the Federal Clean Water Act (May 2013).
    \2\ Kusler, J., Common Questions Local Government Wetland 
Protection Programs, Prepared by Association of State Wetlands Managers 
and International Institute for Wetlands Science and Public Policy 
(June 26, 2006), at 2.
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    My business is dedicated to developing, building, and preserving 
affordable housing options for all citizens. I have a unique 
understanding of how the federal government's regulatory process 
impacts businesses in the real world. Additional regulations make it 
more difficult for me to provide homes or apartments at a price point 
that is attainable for working families. More importantly, living under 
a regulatory regime that relies on the significant nexus test and 
determinations from an unelected federal bureaucrat will make 
homebuilding inefficient and costly.
    Housing is a great example of an industry that would benefit from 
more intelligent and sensible regulation. According to a study 
completed by the NAHB, government regulations from federal, state and 
local governments account for up to 25% of the price of a new single-
family home and over 40% of multifamily development. Nearly two-thirds 
of this impact is due to regulations that affect the developer with the 
rest due to regulations that are imposed on the builder during 
construction.\3\ The regulatory requirements we face as builders do not 
just come from the federal government. A key component of effective 
regulation is ensuring that federal, state, and local agencies 
cooperate and coordinate to streamline permitting requirements and 
respect the constitutional roles of each level of government. Notably, 
more sensible regulation will translate into job growth in the 
construction industry.
---------------------------------------------------------------------------
    \3\ Survey conducted by Paul Emrath, National Association of Home 
Builders, ``How Government Regulation Affects the Price of a New 
Home,'' 2011
---------------------------------------------------------------------------
    The U.S. homebuilding industry is already in a recession; few 
industries have struggled more recently than homebuilding. The costs of 
housing for homeowners and renters is increasing due to inflation being 
at a 40-year high, a broken supply chain, and building costs that are 
up 19% compared to last year.\4\ Residential mortgage rates have more 
than doubled since the beginning of 2022, and the difference between a 
3% and 6% mortgage equates to an increase in a family's monthly 
mortgage payment of more than $700 for the cost of a typical home. 
Adding increased regulatory pressure on top of these challenges makes 
it impossible to provide homes at an attainable price.
---------------------------------------------------------------------------
    \4\ Building Materials Prices Up More than 19% Year over Year, 
https://www.nahb.org/blog/2022/05/building-materials-up-more-than-19-
percent-year-over-year
---------------------------------------------------------------------------
    2022 was the first year that single-family starts declined in 11 
years, falling an estimated 12% to 999,000 units. NAHB projects that 
single-family production will fall to 744,000 units this year before 
rebounding to its normal pace in 2024.\5\ According to a report from 
Redfin, around 63,000 home-purchase agreements in the U.S. fell through 
in July 2022, which equates to 16.1% of all homes that went under 
contract.\6\ NAHB economists recognize that we will need to exceed 1.1 
million starts annually to reduce a deficit due to the underbuilding in 
the prior decade. If the home building industry operated normally, 
there would be millions more jobs in home building and related trades. 
Smart regulation can help unleash that growth.
---------------------------------------------------------------------------
    \5\ A Housing Downturn in 2023 Followed by a Recovery in 2024, 
https://www.nahb.org/news-and-economics/press-releases/2023/01/housing-
downturn-in-2023-followed-by-recovery-in-2024
    \6\ Homebuyers Are Increasingly Backing Out of Deals: How To Keep 
Your Sale on Track, https://moneywise.com/investing/real-estate/
homebuyers-are-backing-out-of-deals?utm_source=
syn_oath_mon&utm_medium=Z&utm_campaign=14843&utm_content=oath_mon_
14843_home+purchase+agreements+fell+through
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    Our impact on the economy is more than just jobs. Buyers of new 
homes and investors in rental properties add to the local tax base 
through business, income and real estate taxes, and new residents buy 
goods and services in the community. NAHB estimates the economic 
impacts of building 100 typical single-family homes to include $28 
million in wage and business profits, $11.1 million in federal, state 
and local taxes, and 297 jobs. In the multifamily sector, the impacts 
of building 100 typical rental apartments include $10.8 million in 
wages and business profits, $4.2 million in federal, state and local 
taxes and 113 jobs.\7\
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    \7\ The Economic Impact of Home Building in a Typical Local Area 
Income, Jobs, and Taxes Generated, https://www.nahb.org/-/media/NAHB/
news-and-economics/docs/housing-economics/economic-impact/economic-
impact-local-area-2015.pdf
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    Any effort to advance our nation's housing recovery is smart 
economic policy. To reach these goals, however, we need policies that 
streamline and enhance existing efforts and remove regulatory hurdles, 
not ones that add layers of regulatory red tape and provide minimal 
benefits.
              ``Waters of the United States'' Final Rule:
    On January 18, 2023, the Environmental Protection Agency and U.S. 
Army Corps of Engineers issued a final rule redefining the scope of 
waters protected under the CWA. For years, landowners and regulators 
alike have been frustrated with the continued uncertainty over the 
scope of federal jurisdiction over WOTUS. NAHB members initially hoped 
the agencies would create a durable and flexible rule to improve the 
CWA's implementation. Home builders support removing redundancy, 
clarifying jurisdictional authority, and having the agencies facilitate 
compliance while protecting and improving the aquatic environment. 
Unfortunately, the final rule fails to provide the clarity and 
certainty the construction industry seeks. This rule will increase 
federal regulatory power over private property and lead to increased 
litigation, permit requirements, and lengthy delays for any business 
trying to comply. Equally important, these changes will not 
significantly improve water quality because much of the rule improperly 
encompasses water features already regulated at the state level.
  Final Rule Inappropriately Expands Federal Jurisdiction, Especially 
           Compared to the Navigable Waters Protection Rule.
    In the agencies' press release announcing the final rule, they 
assert it ``establishes a clear and reasonable definition of WOTUS and 
reduces the uncertainty from constantly changing regulatory definitions 
that have harmed communities and our nations waters.'' \8\ This claim 
is simply inaccurate as the final rule establishes a two-tiered 
approach to asserting federal jurisdiction by analyzing certain water 
features under the relatively permanent standard or the significant 
nexus standard. By implementing this two-tiered approach to determine 
this water's jurisdictional status, the agencies are giving themselves 
``two bites at the apple'' to regulate impoundments, adjacent wetlands, 
non-navigable intrastate waters, and ephemeral streams drainage 
ditches.
---------------------------------------------------------------------------
    \8\ https://www.epa.gov/newsreleases/epa-and-army-finalize-rule-
establishing-definition-wotus-and-restoring-fundamental
---------------------------------------------------------------------------
    The agencies intentionally created overly broad terms so they have 
the authority to interpret them as they see fit in the field, including 
stepping in where they may think a state has not gone far enough. The 
regulatory text lacks a clear definition of ``significantly affect.'' 
Furthermore, key regulatory terms within the final rule remain 
completely undefined including terms such as what constitutes a 
``tributary,'' ``neighboring,'' and the aforementioned, ``similarly 
situated waters in the region,'' giving federal regulators in the field 
full and unfettered discretion to interpret and re-interpret these 
important and yet undefined terms in a manner that enables the broadest 
of federal jurisdiction over otherwise non-navigable, isolated, and 
ephemeral waterbodies and landscape features.
    Instead of providing clear regulatory definitions, the agencies 
rely upon forthcoming regulatory guidance documents to explain how the 
regulatory text will be further interpreted and implemented across all 
Army Corps Districts. Importantly, none of these regulatory guidance 
documents have been subject to public notice and comment and can be 
revised or rescinded at any time. For any small business trying to 
comply with the law, the last thing needed is a set of new, vague and 
convoluted definitions that provide another layer of uncertainty.
    Let me discuss some of the problematic features in detail:
Rule's Reliance on the Significant Nexus Test:
    Through the significant nexus test, federal regulators using a 
case-by-case approach must determine the jurisdictional status of 
numerous types of waterbodies or landscape features based on several 
vague and completely undefined factors. Ultimately, the significant 
nexus process culminates with a federal regulator making a 
jurisdictional determination that a waterbody or landscape feature, 
either alone or in combination with similarly situated features in the 
region (another undefined term), has a material influence upon the 
chemical, physical, or biological integrity of a traditional navigable 
water (TNW). Under the recently finalized WOTUS rule, the 
``significantly affects'' test will be applied to three out of the five 
jurisdictional categories, e.g., tributaries, adjacent wetlands, and 
intrastate waters. These categories include features such as isolated 
lakes, ponds, streams, human-made drainage ditches or even a wetland.
    In the rule's preamble, the agencies outline that they will be 
providing useful tools to the public with step-by-step information 
needed for the agencies to make informed and consistent determinations 
of federal jurisdiction. That information should be part of the 
regulations and the public should have had the opportunity to comment. 
Furthermore, the rule goes into effect on March 20, 2023, and the 
public has yet to weigh in on any of these guidance documents. One such 
regulatory guidance the agencies have just recently released is 
entitled, ``Joint Coordination Memorandum to the Field Between the U.S. 
Department of the Army, U.S. Army of Engineers (Corps) and the U.S. 
Environmental Protection Agency (EPA).'' \9\ This joint Corps/EPA 
regulatory guidance document creates a required internal interagency 
review process for all draft approved jurisdictional determinations 
(e.g., including those where the agency determined a feature was non-
jurisdictional) under the final rule's significantly affects standard. 
Under this guidance document, the Corps districts must wait for a 
minimum period of five days to allow staff within the EPA's Regional 
Office to review and request additional information from the Corps 
District concerning the draft jurisdictional determination (JD). Under 
the guidance document, if the staff within the EPA Regional Office has 
any comment or questions about the Corps district's draft JD, an 
additional 14-day waiting period is triggered to allow EPA Regional 
Office staff time to review, comment, or even hold a meeting with Corps 
district staff to discuss its findings under the draft JD. If agreement 
cannot be reached on a draft JD between Corps district staff and staff 
within the EPA Regional Office, or if the draft JD concerns a 
``significant affect'' determination for any feature covered under the 
final rule's intrastate water jurisdictional category, then a 
headquarters review by the agencies is triggered. Any headquarters 
review of a draft JD triggers an additional 14-day delay but can be 
extended beyond 14 days provided staff from both the agencies agree (in 
writing) to an unspecified longer timeframe to complete their review of 
the draft JD.
---------------------------------------------------------------------------
    \9\ https://www.epa.gov/system/files/documents/2022-12/
Waters%20of%20the%20United
%20States_Coordination%20Memorandum.pdf
---------------------------------------------------------------------------
    Importantly, nowhere within this joint regulatory guidance must the 
federal agencies either notify or seek the consent of the landowner who 
is seeking the JD from the Corps district. Nor under the joint guidance 
does a failure on the part of the agencies to adhere to the guidance's 
deadlines result in the issuance of the requested draft JD. Ultimately, 
this joint guidance illustrates the unnecessary complexity and 
bureaucratic delays that have become the hallmarks of the ``significant 
nexus test.''
    By comparison, the WOTUS definition under the Navigable Waters 
Protection Rule (hereafter ``NWPR''), which the recently finalized 
WOTUS rule rescinds, based federal jurisdiction on observable landscape 
conditions. That rule empowered landowners to determine whether their 
activities might impact a waterbody or landscape feature that is 
jurisdictional under the CWA. The NWPR's definition of WOTUS did this 
by requiring CWA jurisdictional features to maintain surface water 
connections during a ``typical year'' to TNWs and territorial seas, and 
tributaries of those features.
    By linking CWA jurisdiction to observable surface conditions, the 
NWPR addressed many of NAHB's concerns. For example, the original 1986 
regulations and this final rule define the extent of ``adjacent 
wetlands'' to encompass ambiguous terms such as ``neighboring'' 
features. By comparison, the NWPR clearly defined ``adjacent wetlands'' 
and eliminated vague and undefined regulatory concepts such as 
``neighboring'' and ``similarly situated,'' which rendered the 
``significant nexus'' test irrelevant, and categorically exempted from 
CWA jurisdiction all ``ephemeral'' features that form only in response 
to rainfall events as well as all ditches that failed to meet the 
NWPR's definition of ``tributary.'' Compared to the agencies' recently 
finalized WOTUS rule, the WOTUS regulatory definition under the NWPR 
provided many improvements including:
      Eliminated ``Significantly affects'' test: By avoiding 
the onerous significant nexus test the NWPR linked federal CWA 
jurisdiction to those waterbodies and landscape features that 
maintained a surface water connection to another traditional navigable 
water.
      Encompassed far fewer adjacent wetlands: Since the NWPR 
only asserted federal CWA jurisdiction over wetlands that directly abut 
(i.e., touch) or maintain a surface water connection to other 
jurisdictional water during a typical year (a defined term under the 
NWPR) and avoided overly expansive and confusing terms like 
``neighboring'' and ``similarly situated'' found under today's final 
WOTUS rule.
      Excluded all ephemeral features: The NWPR included both a 
regulatory definition of ephemeral features and an explicit CWA 
categorical jurisdictional exclusion for all such ephemeral features., 
By contrast, the recently finalized WOTUS rule not only rescinds the 
NWPR's ephemeral definition and exclusion but purposefully fails to 
distinguish under the final rule's ditches exclusion when ephemeral 
flow equates to a CWA jurisdictional relatively permanent flow.
      Narrowed federal jurisdiction over tributaries: Since the 
NWPR required tributaries to maintain perennial or at least 
intermittent flow, the NWPR did not depend on subsequent field surveys 
such as observations of ``bed and banks and ordinary high-water mark'' 
(OHWM) that in arid and semi-arid areas of the country have proven to 
be difficult to discern from erosional features left on the landscape 
following instances of ephemeral flow. In comparison under the recently 
finalized WOTUS definition, determining the presence of a tributary 
return to a subjective field survey approach of locating a ``bed and 
bank'' and OHWM.
      Excluded more ditches: Under the NWPR all ditches were 
excluded unless they met the conditions of either a TNW or a tributary. 
By comparison under the recently finalized WOTUS rule, all ditches are 
included unless they meet narrow exemptions.
      Excluded basing jurisdiction on ``interstate waters'': 
Under the NWPR, the agencies recognized that the federal government is 
limited to regulating ``interstate commerce'' and that just because a 
wetland or waterbody crosses a state line, it does not provide the 
federal government with jurisdiction over that feature.

    Compared to the WOTUS regulatory definition under the NWPR, today's 
WOTUS rule subjects more areas to federal CWA jurisdiction and returns 
to ambiguous regulatory terms and requires landowners to await the 
results of overly complex and bureaucratic delays inherent under the 
``significant nexus test'' before knowing the CWA jurisdictional status 
of many non-navigable, isolated, and ephemeral features. Instead of 
relying upon observable features as under the NWPR that had made making 
jurisdictional determinations in the field much easier.
Intrastate Waters
    The rule also provides a catchall ``intrastate waters'' category 
for areas that may not fit neatly into a specific water category but 
for which the agencies have retained complete discretion to find a 
significant nexus on a case-by-case basis. Significantly, this also 
includes the ability to make blanket jurisdictional determinations by 
considering all similarly situated waters in the region to determine if 
they, taken together, have a significant nexus to a TNW. The ability to 
aggregate waters, even within a catchment area, further illustrates the 
notion that there is no limit to federal jurisdiction under this rule. 
These definitions will leave home builders in a constant state of 
confusion. This unpredictability will make it difficult for my business 
to comply and grow. The agencies suggest that the rule provides 
clarity; however, all it does is produce more questions. Unfortunately, 
builders will need to rely on the agencies for answers or be required 
to pay tens of thousands of dollars to consultants to help us comply 
with the CWA.
    Under CWA Section 101(b), Congress explicitly recognizes the 
primary responsibilities and rights of states in helping to prevent, 
reduce and eliminate pollution in our waterbodies. Intrastate 
waterbodies that do not impact federal commerce or other jurisdictional 
waters should not be federally regulated. In fact, these waterbodies 
should be expressly excluded in any definition of WOTUS moving forward.
        Final Rule is Inconsistent with Supreme Court Precedent:
    The CWA was designed to strike a careful balance between federal 
and state authorities. This has proven to be a difficult task, and to 
some extent, the efforts of the courts to provide clarity have only 
added to the uncertainty. The courts have been clear on one issue, 
which is that there is a limit to the federal jurisdiction of waters. 
In fact, the Supreme Court has twice affirmed that the U.S. 
Constitution and CWA place limits on federal authority over intrastate 
waters. To view the rule through this legal framework, it is necessary 
to look at the key cases:
Solid Waste Agency of Northern Cook County v. Army Corps of Engineers 
        (SWANCC):
    In 2001, for the first time, the Supreme Court limited the federal 
government's jurisdictional authority under the CWA through the SWANCC 
decision. The case questioned whether the CWA conferred the Corps of 
Engineers with authority over isolated, seasonal ponds at an abandoned 
sand and gravel pit in suburban Chicago because they were susceptible 
to being used by migratory birds. The agency tried to explain that 
those isolated features impacted interstate commerce and therefore were 
navigable waters. The Court rejected the Corps' assertion of 
jurisdiction because the agency's authority does not extend to 
isolated, abandoned sand and gravel pits with seasonal ponds, which 
provide migratory bird habitats.\10\ In other words, the Corps could 
not assert jurisdiction over a feature without a connection to 
navigation.
---------------------------------------------------------------------------
    \10\ Solid Waste Agency of Northern Cook County v. U.S. Army Corps 
of Engineers, 531 U.S. 159 (2001)
---------------------------------------------------------------------------
Rapanos v. United States and Carabell v. U.S. Army Corps of 
        Engineering:
    Both the Rapanos \11\ and Carabell \12\ cases followed the same 
fact pattern: wetlands miles away from TNWs that drained through 
multiple ditches, culverts, and creeks, eventually draining into a TNW. 
The question of this court case was over the jurisdictional theory that 
waters are jurisdictional if they have a ``hydrological connection'' to 
a TNW. Rapanos provided a significant clarification that CWA 
jurisdiction does not reach non-navigable features merely because they 
may be hydrologically connected to downstream navigable waters. In 
short, the ``any hydrologic connection'' theory was rejected.
---------------------------------------------------------------------------
    \11\ Rapanos v. United States, 126 S.Ct 2208 (2006)
    \12\ Carabell v. United States, 126 S.Ct. 1295 (2006)
---------------------------------------------------------------------------
    However, two theories emerged from the majority's opinion in 
Rapanos. The first, written by Justice Scalia, claimed that CWA 
coverage extended to `` . . . only those relatively permanent, 
standing, or continuously flowing [emphasis added] bodies of water 
`forming geographic features that are described in ordinary parlance as 
`stream[s,] . . . oceans, rivers, [and] lakes.' '' \13\ The plurality 
also developed a jurisdictional rule for wetlands in particular: 
``[O]nly those wetlands with a continuous surface connection to bodies 
that are `waters of the United States' in their own right, so that 
there is no clear demarcation between `waters' and `wetlands,' are 
`adjacent to' such waters and covered by the Act.'' \14\ The second 
test was authored by Justice Kennedy, who concurred with the judgment 
but wrote separately for himself. He elevated the concept of 
``significant nexus,'' by explaining that ``[W]etlands possess the 
requisite nexus, and thus comes within the statutory phrase `navigable 
waters,' if the wetlands, either alone or in combination with similarly 
situated lands in the region, significantly affect the chemical, 
physical, and biological integrity of other covered waters more readily 
understood as `navigable.' '' \15\ ``Consistent with SWANCC and with 
the need to give the term `navigable' some meaning, the Corps' 
jurisdiction over wetlands depends on a significant nexus between the 
wetlands in question and navigable waters in the traditional sense.'' 
\16\
---------------------------------------------------------------------------
    \13\ Rapanos 126 S.Ct. at 2225
    \14\ Id. at 2226
    \15\ Id. at 2226
    \16\ Id. at 2249
---------------------------------------------------------------------------
    The most significant clarification that Rapanos provided was that 
the five Justices agreed that CWA jurisdiction does not reach non-
navigable features merely because they are hydrologically connected to 
downstream navigable water. However, many have maligned Rapanos because 
the Justices failed to reach a majority opinion that announced the 
``correct'' test for CWA jurisdiction. In many cases, the existence of 
two tests only adds more confusion and disagreement regarding the scope 
of the CWA. While the agencies face a difficult task in resolving this 
conflict, the proposed rule is obviously inconsistent with these 
Supreme Court decisions and will expand the scope of waters that can be 
regulated by the agencies. The rule would extend coverage to many 
features that are remote and/or carry only minor volumes of water, and 
contrary to the Supreme Court's findings, its provisions provide no 
meaningful limit to federal jurisdiction. This broad overreach is 
unacceptable.
Sackett v. Environmental Protection Agency
    The Supreme Court heard oral arguments in Sackett v. EPA on Monday, 
October 3, 2022. The question presented in Sackett is ``Should Rapanos 
be revisited to adopt the plurality's test for wetlands jurisdiction 
under the Clean Water Act?'' If the Court answers this question 
affirmatively, it would reject that the significant nexus test is the 
proper test for determining CWA jurisdiction.
    While the public waits for the Court's decision, the agencies 
rushed to finalize this rule. It is especially shortsighted and a waste 
of federal resources, given that the Supreme Court's upcoming ruling 
under Sackett v. EPA is squarely focused on the legality of the 
significant nexus test.
            The Proposed Rule Ignores Federal/State Balance
    While many aspects of the CWA are vague, Congress explicitly 
intended to create a partnership between federal agencies and state 
governments to protect our nation's water resources. Congress states in 
section 101 of the CWA that ``[f]ederal agencies shall cooperate with 
state and local agencies to develop comprehensive solutions to prevent, 
reduce and eliminate pollution in concert with programs for managing 
water resources.'' Under this notion, there is a point where federal 
authority ends and state authority begins.
    The rule published by the agencies, however, blatantly ignores this 
history of partnership and fails to recognize that there are limits to 
federal authority. If this rule is implemented as written, the federal 
government will severely cripple the state's role in protecting our 
nation's water resources, which would be a huge mistake and 
unconstitutional. Litigation is a likely result, and while it makes its 
way through the court system, regulators and businesses will be left in 
a lurch.
    In addition, because the change in jurisdictional authority applies 
not only to section 404 of the CWA but also to all programs, the states 
will be required to conduct more monitoring and develop water quality 
standards for these newly jurisdictional waters in addition to those 
that are already covered. States will also be required to develop total 
maximum daily loads if these waters do not meet their water quality 
goals. Because many of these newly designated waters are on the drier 
side of the spectrum and/or will be conveyances designed to move water 
from one place to another, I am particularly concerned with the impacts 
this rule will have on section 402 stormwater permitting requirements 
and how the states and localities may pass on the myriad of new, 
onerous, and costly requirements to landowners. For many years, States 
have adequately regulated their own waters and wetlands. States take 
their responsibilities to protect their natural resources seriously and 
do not need the federal government to meddle in their affairs and 
unnecessarily assert jurisdiction. In fact, every state has the 
authority to exceed federal law so long as there is a compelling 
reason. If you looked around the country, you would find that many 
states are protecting their natural resources more aggressively than 
when the CWA was enacted--a testament to their desire and willingness 
to do so.
    In these times of austere budgets and competing priorities, the 
agencies should heed the CWA's directive and allow the states to 
maintain their prerogatives to regulate the lands and waters within 
their boundaries as they see fit.
                   Potential Impacts on Construction:
    Home building is a complex and highly regulated industry. As costs, 
regulatory burdens, and delays increase, the small businesses that make 
up a majority of the industry must adapt. This can include paying 
higher prices for land or purchasing smaller parcels, redrawing 
development, or house plans, and completing mitigation or resource 
enhancement projects. All these adaptations must be financed by the 
builder and ultimately arrive in the market as a combination of higher 
prices for the consumers and lower output for the industry. As output 
declines and jobs are lost, other sectors that buy from or sell to the 
construction industry also contract and lose jobs. Builders and 
developers, already crippled by the economic downturn, cannot depend 
upon the future homebuying public to absorb the many costs associated 
with overregulation.
    Because compliance costs for regulations are often incurred before 
home sales, builders and developers must essentially finance these 
additional carrying costs until the property is sold. Because of the 
increased price, it may take longer for the home to be sold. Carrying 
these additional costs only adds more risk to an already risky business 
yet is one of the difficult realities that home builders face every 
day. This final rule only adds to the headwinds that our industry 
faces.
    Even moderate cost increases can have significant negative market 
impacts. This is of particular concern in the affordable housing sector 
where relatively small price increases can have an immediate impact on 
low to moderate-income home buyers. Such buyers are more susceptible to 
being priced out of the market. As the price of the home increases, 
those on the verge of qualifying for a new home will no longer be able 
to afford this purchase. As of 2021, an analysis done by NAHB 
illustrates the number of households priced out of the market for a 
median-priced new home due to a $1,000 price increase. Nationally, this 
price difference means that when a median new home price increases from 
$345,000 to $346,000, 153,967 households can no longer afford that 
home.\17\
---------------------------------------------------------------------------
    \17\ NAHB Priced-Out Estimates for 2021, https://www.nahb.org/-/
media/NAHB/news-and-
economics/docs/housing-economics-plus/special-studies/2021/special-
study-nahb-priced-out-
estimates-for-2021-february-2021.pdf
---------------------------------------------------------------------------
    The picture becomes starker when you consider the time and cost to 
obtain a CWA section 404 permit. A 2002 study found that it takes an 
average of 788 days and $271,596 to obtain an individual permit and 313 
days and $28,915 for a ``streamlined'' nationwide permit. Over $1.7 
billion is spent annually by the private and public sectors obtaining 
wetlands permits.\18\ Importantly, these ranges do not consider the 
cost of mitigation, which can be exorbitant. When considering these 
excesses, it becomes clear that we need to find a necessary balance 
between protecting our nation's water resources and allowing citizens 
to build and develop on their private land.
---------------------------------------------------------------------------
    \18\ David Sunding and David Zilberman, ``The Economics of 
Environmental Regulation by Licensing: An Assessment of Recent Changes 
to the Wetland Permitting Process,'' 2002
---------------------------------------------------------------------------
Increased Number of Federal Permits:
    Construction projects rely on efficient, timely, consistent 
permitting procedures and review processes under CWA programs. Builders 
and developers are generally ill-equipped to make their own 
jurisdictional determinations and must hire outside consultants to 
secure necessary permits and approval. This takes time and money. 
Delays often lead to higher costs, which lead to greater risks. Onerous 
permitting liabilities could delay or eventually kill a real estate 
deal. If the rule is implemented as written, the ability to sell, 
build, expand, or retrofit structures or properties will suffer notable 
setbacks, including added costs and delays in development and 
investment.
    Specifically, for the ``intrastate waters'' category, builders will 
be at the mercy of the agencies. Builders will have to request a 
jurisdictional determination from the agencies to ensure they are not 
disturbing land near an aggregated water. Consequently, an increase in 
the number of jurisdictional determinations requests, across all 
industries, will result in greater permitting delays as the agencies 
are flooded with paperwork.
Increased Federal Consultations:
    Many federal statutes tie their approval/consultation requirements 
to those of the CWA--meaning that if one needs to obtain a CWA permit, 
he/she must also obtain others (examples include the Endangered Species 
Act, National Historic Preservation Act, and National Environmental 
Policy Act). If more areas are considered jurisdictional, more CWA 
permits will be required, triggering these additional statutory 
reviews. Because project proponents do not have a seat at the table 
during these additional reviews and the consulting agencies are not 
bound by a specific time limit, builders and developers are immediately 
placed at a disadvantage. Lengthened permitting times will include an 
increased number of meetings, formal and informal hearings, and 
appeals. These federal consultations are just another layer of red tape 
that the federal government has placed on small businesses, and it is 
doubtful that the agencies will be equipped to handle this inflow.
Preliminary Jurisdictional Determinations:
    After the issuance and implementation of the Clean Water Rule in 
2015, many home builders across the country felt helpless while waiting 
for the agencies to process their jurisdictional determinations. 
Instead, many within the industry turned to preliminary jurisdictional 
determinations to advance the permitting process.
    As the Philadelphia District of the Corps explains it, ``a 
landowner, permit applicant or other affected party may elect to use a 
preliminary JD to voluntarily waive or set aside questions regarding 
CWA jurisdiction over a particular site, usually in the interest of 
allowing the landowner to move ahead expeditiously to obtain a Corps 
permit authorization where the party determines that it is in his or 
her best interest to do so.'' \19\ PJDs cannot be appealed.
---------------------------------------------------------------------------
    \19\ https://www.nap.usace.army.mil/Missions/Regulatory/
Jurisdictional-Determinations/
---------------------------------------------------------------------------
    Essentially, our members gave up their right to defend themselves 
just to move the process along. NAHB fears this will happen again with 
the implementation of this final rule. Many of our members will be 
stuck in permit backlogs AJD reviews so they will opt for a PJD 
instead. Through this, many home builders recognize that we are giving 
authority to the federal government to regulate the water that it does 
not have the authority to regulate--but to speed along the process, our 
members often accept this.
  The WOTUS Rule's Exclusions Are Too Limited and Fails to Recognize 
                  Longstanding Categorical Exemptions:
    NAHB is concerned that the agencies' failure to recognize 
longstanding categorical exclusions from federal jurisdiction under the 
WOTUS final rule will result in federal overreach and unnecessary 
regulatory confusion on the part of regulators and landowners. Under 
the final rule, the agencies have not recodified nearly a dozen 
features that were categorically excluded from CWA jurisdiction under 
prior iterations of the WOTUS regulatory definition. Instead, the 
agencies claim that they intend to implement exclusions under the final 
rule in a manner consistent with prior agency practices, where certain 
features were not specifically excluded by the rule, but the agencies 
would ``generally'' not assert jurisdiction over those features. NAHB 
believes that any clearly worded WOTUS regulatory definition must also 
have clearly worded jurisdictional exclusions rather than relying upon 
general statements by the agencies on how they have typically 
interpreted prior categorical exclusions. The agencies must instead 
ensure the final WOTUS rule is implemented in a consistent and clear 
manner by specifying within the final rule a list of features that are 
categorically excluded from jurisdiction by rule and can be relied upon 
by landowners and regulators alike. NAHB had urged agencies during the 
public comment process to include the following categorical exclusions 
for stormwater management facilities and treatment ponds, green 
infrastructure, and municipal separate storm sewer systems (MS4) 
infrastructure.
Stormwater Management Facilities including Stormwater Treatment Ponds 
        are not WOTUS features:
    NAHB members typically must secure NPDES stormwater permits before 
discharging stormwater to a WOTUS or a municipal separate storm sewer 
system (MS4). A required element of all NPDES stormwater permits for 
active construction sites is the Storm Water Pollution Prevention Plan 
(SWPPP), which identifies specific sediment and erosion control 
measures necessary to protect water quality. Historically, the 
preferred method for treating stormwater under an SWPPP has been using 
on-site retention or dentition ponds, infiltration trenches, or other 
conveyance systems. These man-made ponds and trenches are designed to 
slow concentrated stormwater runoff and trap sediment to protect 
receiving streams, lakes, and other downstream waterbodies (i.e., WOTUS 
features). Without an explicit exclusion, however, stormwater treatment 
ponds could be deemed a WOTUS because of the final WOTUS rule's overly 
broad jurisdictional categories including ``tributary,'' ``adjacent 
wetlands, '' or ``intrastate waters.''
    While the final WOTUS rule's categorical exclusion for ``water 
treatment systems'' should cover stormwater management facilities and 
stormwater treatment ponds, absent a specific categorical exclusion, 
NAHB remains concerned home builders could be punished. Specifically, 
without such categorical exclusions for stormwater treatment ponds, 
home builders face the prospect of being required to secure CWA Section 
402 NPDES permits coverage to address construction-related stormwater 
discharges leaving their active construction sites and a federal 
wetlands permit (CWA Section 404 dredge or fill permit) for their own 
discharges into their own stormwater treatment ponds. This admittingly 
would be a perverse outcome and inconsistent with the common-sense 
interpretation of the agencies' ``waste treatment systems'' exclusion. 
Nevertheless, without an explicit categorical exclusion for stormwater 
treatment ponds, developers and home builders risk having to obtain CWA 
404 permits for routine maintenance activities of these facilities.
Green Infrastructure Features are not WOTUS features:
    EPA has defined green infrastructure as a means of ``protecting and 
restoring natural landscape features and using natural systems (or 
systems engineered to mimic natural processes) to manage rainwater as a 
resource,'' and the agencies tout its many benefits, including 
increased climate resiliency, reduced urban island effects, lowering a 
buildings' energy demands, and sustainable communities.\20\ The 
agencies ``support(s) expanded use of green infrastructure to protect 
and restore waters while creating more environmentally and economically 
sustainable communities'' and see green infrastructure as part of its 
``strategic agenda to protect waters.'' Despite the agencies' 
unequivocal support for green infrastructure, there is no indication 
under the final WOTUS rule that green infrastructure features such as 
rain gardens, stormwater infiltration cells, and other low-impact 
development techniques to manage the stormwater runoff will be covered 
under the final WOTUS rule's waste treatment system exclusions. This is 
troubling to NAHB's membership since localities often encourage or 
require developers and builders to install green infrastructure on new 
projects. By not explicitly excluding green infrastructure features 
from CWA jurisdiction, the agencies have created a powerful 
disincentive to developers, builders, and local governments from 
installing such features moving forward. If green infrastructure 
features such as rain gardens, bioswales, and other stormwater 
management devices are not categorically excluded from the WOTUS 
regulatory definition, then landowners and local governments alike face 
the prospect of having to obtain costly and time-consuming CWA Sec. 404 
permits to perform routine maintenance of these same features. A clear 
disincentive to NAHB members who otherwise would consider installing 
green infrastructure devices into new residential developments.
---------------------------------------------------------------------------
    \20\ www.epa.gov/green-infrastructure/what-green-infrastructure
---------------------------------------------------------------------------
Municipal Separate Storm Sewer Systems (MS4) Are Not WOTUS Features:
    Municipal Separate Storm Sewer Systems (MS4s) systems are owned and 
operated by state and local governments and vary in size; however, 
their function is universal--to transport or convey a city's stormwater 
through pipes, drains, gutters and open ditches.\21\ Many MS4 systems 
are regulated as point sources and therefore are required to obtain 
Sec. 402 National Pollutant Discharge Elimination System permits and 
develop stormwater management programs. Because exposed ditches and 
intermittent streams are often part of MS4 systems, I am concerned that 
the proposed may regulate MS4s (or their components) as WOTUS. This 
would be problematic because these features are already regulated as a 
point source. Further, there are miles of roadside ditches that are 
simply there to carry stormwater from the roadways for public safety 
and for which it makes little sense to consider it as federally 
regulable water.
---------------------------------------------------------------------------
    \21\ 40 C.F.R. Sec.  122.26(b)(8).
---------------------------------------------------------------------------
Impacts of Declaring Roadside Ditches Jurisdictional:
    The dilemma caused by the CWA jurisdictional status of the common 
ditch is so important to the residential construction industry because 
ditches are so ubiquitous that they criss-cross the American landscape 
nearly everywhere. The Federal Highways Administration estimates there 
are more than 3.9 million miles of roadways within the United States, 
and federal regulations generally require those roads to be drained by 
ditches.\22\ \23\ Therefore, having the agencies declare even a 
fraction of the millions of miles of roadside drainage ditches 
jurisdictional has major regulatory and permitting ramifications for 
residential developers and builders. Particularly since NAHB members 
typically must install culverts, roads, and even driveways across 
ditches to access their residential developments or even an individual 
homebuilding lot.
---------------------------------------------------------------------------
    \22\ U.S. Department of Transportation, Federal Highways 
Administration, Highway Statistics 2021 Sec. 4 Highway Infrastructure, 
Public road length by ownership and Federal-aid highways at https://
www.fhwa.dot.gov/policyinformation/statistics/2021/
    \23\ 30 C.F.R. Sec.  816.151(d).
---------------------------------------------------------------------------
    Historically, the Corps did not assert jurisdiction over roadside 
drainage and irrigation ditches constructed in upland areas. In 
addition, Congress established a statutory exemption from CWA Sec. 404 
permitting requirements for the construction or maintenance of 
irrigation or drainage ditches under CWA Section 404(f)(1)(C). The 
problem for NAHB's membership is that the Corps districts have applied 
the statutory exclusion from CWA 404 permitting requirements 
inconsistently across the country resulting in regulatory confusion and 
litigation.
    Under the NWPR the agencies created an exclusion for irrigation and 
drainage ditches provided those ditches were not constructed within a 
wetland, relocated an existing tributary, nor satisfied the NWPR's 
definition of a tributary.\24\ Because of the NWPR's ditch exclusion 
and the exclusion of all ephemeral features, the jurisdictional status 
of ditches narrowed under the NWPR. Furthermore, because the NWPR did 
not use the ``significant nexus test,'' any isolated wetlands located 
near non-jurisdictional ditches could not subsequently be deemed 
jurisdictional by the agencies using a case-by-case approach. By 
comparison, the current WOTUS regulatory definition eliminated the 
NWPR's ditch exclusion. In addition, under the final rule, roadside 
drainage ditches (including ditches with only ephemeral flow) can be 
considered jurisdictional using the significant nexus test under either 
the tributary or interstate water jurisdictional categories. Finally, 
because the final rule returns to using the ``significant nexus test'' 
this means any isolated wetlands located nearby a jurisdictional ditch 
can also be deemed jurisdictional.
---------------------------------------------------------------------------
    \24\ 40 C.F.R. Sec.  328.3(b)(5)
---------------------------------------------------------------------------
                              Conclusion:
    The final rule does not add new protections for our nation's water 
resources but rather, inappropriately shifts the jurisdictional 
authority of many drier-end features and non-navigable isolated 
wetlands, streams, and drainage ditches to the federal agencies. As a 
builder serving the affordable housing market, I am concerned about 
additional government regulations and the continued uncertainty this 
rule ensures. Builders cannot continue to provide affordable housing to 
those in need while weighed down by additional regulatory burdens and 
requirements like these that provide little environmental benefit.
    In addition, the rule allows the agencies to illegally ``take the 
easy way out'' by sweeping everything under federal authority. If the 
agencies are interested in developing a meaningful and balanced rule, 
they must take a more methodical and sensible approach. I have 
significant concerns with the final rule, and I would encourage 
Congress to direct the agencies to implement a durable and practical 
definition of WOTUS.
    I appreciate the opportunity to discuss these important issues.

    Mr. Rouzer. I thank the gentlelady.
    Mr. Williams.

    TESTIMONY OF MARK WILLIAMS, ENVIRONMENTAL MANAGER, LUCK 
   COMPANIES, ON BEHALF OF THE NATIONAL STONE, SAND & GRAVEL 
                          ASSOCIATION

    Mr. Williams. Good morning, Chairman Rouzer, Ranking Member 
Napolitano, and other members of the subcommittee. Thank you 
for inviting me to testify on behalf of the National Stone, 
Sand & Gravel Association at this hearing.
    NSSGA is the voice of the aggregates industry. We have over 
9,000 operations in nearly every congressional district, 
producing over 2.5 billion tons of material that is the key 
ingredient to build every home and infrastructure project in 
the U.S.
    My name is Mark Williams. I am the environmental manager at 
Luck Companies, an aggregate producer in Virginia, North and 
South Carolina, and Georgia. I have over 40 years of experience 
in the water treatment industry. I am a Virginia Certified 
Professional Wetland Delineator since the inception of that 
program 18 years ago.
    In its 100 years, Luck Companies provides aggregates that 
allow communities across the region to grow and thrive. We 
support numerous voluntary initiatives that improve waters, 
like using aggregate materials to restore habitat for the 
Atlantic sturgeon in the James River, protecting the Chesapeake 
Bay shoreline, or creating wetlands and other critical 
habitats, and have even donated a former quarry to Loudoun 
County in Virginia for future drinking water supplies.
    Like all NSSGA members, we go above and beyond the many 
local, State, and Federal regulations to protect our 
surrounding environments. Remember, stone, sand, and gravel are 
used in nearly all building projects, public works projects, 
roads, highways, bridges, dams, energy projects and airports, 
as well as environmental purposes, such as treating drinking 
water, stormwater, and stream restoration.
    Unlike other businesses, we are limited to where natural 
forces have deposited those materials that we use, so, we must 
engage in careful planning to ensure that every community has 
access to aggregates. And because of high transportation and 
environmental costs, we normally are unable to move the vast 
amount of aggregates we use over a long distance.
    NSSGA members are deeply concerned that EPA's new WOTUS 
rule will further complicate an already lengthy and burdensome 
process to establish or access these resources. Today it takes 
10 or even 20 years to develop a quarry.
    While the new rule is being portrayed as a familiar 
regulation, it in fact poses more questions than it answers by 
making it difficult for businesses to plan and hire the 
workforce necessary to supply those materials. This rule could 
add millions in costs and delays for supplying new aggregates.
    We want to do things the right way, but this unclear rule 
makes it nearly impossible to know what that right way is. For 
example, the new rule states ditches are exempt. However, the 
rule also states that ditches should be included if they move 
water from one wet area to another jurisdictional region.
    It seems to me the purpose of a ditch is to remove water 
and convey it to another location, and so, the new rule would 
in fact make all ditches jurisdictional.
    Further, the rule comes at a time when our industry is 
working in overdrive to supply materials needed to build the 
projects that were authorized by this committee under the 
Infrastructure Investment and Jobs Act. The delays and 
additional costs caused by multiple rules and consultations, 
surveys, reports, and permits processed could lead to the 
abandonment of aggregates projects. This not only impacts our 
infrastructure future that hampers supply chains, it will 
severely harm the ability to produce renewable energy sources.
    The finalization of this rule is occurring mere months 
before the Supreme Court is expected to issue a ruling that 
will likely change how the definition of WOTUS is determined, 
once again requiring the agencies to rewrite the rules.
    We thank the bipartisan Members of this Congress who have 
implored the agencies to wait for the SCOTUS ruling to be 
finalized so aggregates operators are not forced to comprehend 
another rule change.
    In closing, we thank the members of this committee for 
their time today to hear how the new WOTUS rule will impact the 
aggregates industry and our Nation.
    We share the goals of every member of this committee to 
find ways to advance infrastructure investments and building 
projects that improve our communities and deliver economic 
success for every American.
    Unfortunately, with my decades of experience, I feel this 
rule falls short of that goal at a time when we are seeking to 
maximize the outcomes of the infrastructure investments 
provided by Congress.
    Thank you. I look forward to answering your questions.
    [Mr. Williams' prepared statement follows:]

                                 
   Prepared Statement of Mark Williams, Environmental Manager, Luck 
 Companies, on behalf of the National Stone, Sand & Gravel Association
       Aggregates are Vital to Infrastructure and the Environment
    Chairman Rouzer, Ranking Member Napolitano and members of the 
Subcommittee, thank you for inviting me to testify on behalf of the 
National Stone, Sand & Gravel Association (NSSGA) at this hearing.
    The National Stone, Sand & Gravel Association is the voice of our 
nation's aggregates industry, which operates over 9,000 operations and 
employs over 100,000 people in high-paying jobs to source 2.6 billion 
tons of aggregates each year that are critical to the supply chain and 
used to sustain our modern way of life and build our nation's 
communities and infrastructure.
    My name is Mark Williams, and I am the Environmental Manager at 
Luck Companies, the nation's largest family-owned and operated 
aggregates company, which has 21 active aggregate operations throughout 
the southeast from Virginia to Georgia. I have a BS in Biology and have 
been working in the environmental field for over 35 years. I am a 
Virginia Certified Professional Wetland Delineator and have been active 
in laboratory testing, field monitoring and permitting, as well as 
performing wetland delineations. I have worked at Luck Companies for 17 
years and am responsible for permit compliance, environmental training 
and community engagement. I am the former chair of the NSSGA 
Environmental Committee and the 2019 recipient of the NSSGA 
Environmental Leader Award.
    Luck Companies was started 100 years ago and remains a family-owned 
and operated business. We have aggregates operations in Virginia, North 
Carolina, South Carolina and Georgia. Luck Companies has a long history 
of providing aggregates for the betterment of the nation, including the 
DC metro area roads and bridges, the Dulles airport, homes and schools, 
as well as providing materials used for stream restoration and erosion 
control. Perhaps you've seen our quarry adjacent to the Manassas 
Battlefield Park or you've ridden a bike on the W&OD trail that bridges 
across our quarry in Leesburg. Flying into Atlanta, we operate the 
quarry that is directly adjacent to the southern runway. We have won 
national and local awards for conservation, community service and 
safety. Luck Companies has a Memorandum of Understanding with Loudoun 
County that we will mine the resource efficiently and completely, and 
then the quarries will be transferred at no cost to the county to be 
used for the storage of as much as 29 billion gallons of drinking water 
for the citizens of Loudoun County, enhancing the growing community's 
water supply.
    Luck Companies supports a number of nonprofit organizations and 
activities in the communities we operate in and near. For example, we 
participate in events with the Alliance for the Chesapeake Bay and the 
James River Association to help improve the water quality of and 
appreciation for these national treasures. We are Model Level members 
of the RiverStars program of the Elizabeth River Project. We fund 
school and trail projects with the Nature Generation, a non-profit that 
develops programs for Loudoun County Schools. These partnerships have 
led to such notable collaborative projects as the installation of 
sturgeon breeding reefs in the James River; creation of a wetlands park 
in Norfolk Virginia; and the installation of many walking trails in 
Loudoun and Spotsylvania Counties in Virginia. Another project that 
we're particularly proud of is the work that was done in collaboration 
with Virginia Commonwealth University's Rice Rivers Center to study and 
enhance the life cycle of the endangered Atlantic Sturgeon. Luck 
Companies donated over 5,000 cubic yards of randomly sized aggregates 
to be placed in two locations in the James River near Richmond, 
Virginia. Each location was about the size of a football field and 
researchers continue to study the fish that are spawning and feeding in 
this area. Although dozens of sturgeon are captured and tagged each 
year, the spawning grounds of these enormous fish have not been 
identified. Hatchlings and juvenile fry have been captured and 
released, but there have been no eggs found in the river. Luck 
Companies personnel have been involved in the production of the stone, 
the delivery to the river locations, the placement and the study of the 
reef. Aggregate materials are also a major component of the 
installation of many structures that are necessary for environmental 
protection. Riprap is used for the protection against erosion from 
running water, and for the creation of living shorelines in the 
Chesapeake Bay and its major tributaries. Even larger stone is used for 
shoreline protection when smaller measures can be washed away by 
frequent hurricane forces. This armor stone is also used to protect 
piers, railroad trestles, bridges such as the Chesapeake Bay Bridge 
Tunnel, and the bases of new windmills that are being installed 27 
miles offshore of the Virginia coast.
    Like all aggregates operations, Luck Companies is regulated by 
numerous entities including local and state governments and federal 
agencies such as the EPA, the Mine Safety and Health Administration, 
and the U.S. Army Corps of Engineers. Before we begin operations, we 
must obtain permits to construct and operate our facilities. After we 
start operations, our facilities are routinely monitored to ensure we 
are operating in a safe and environmentally responsible manner. 
Finally, when an operation is no longer productive or needed, we 
prepare a reclamation plan that will allow the former quarry operation 
to benefit the community in any number of meaningful ways. We are 
committed to optimizing our operations with the community in mind to 
ensure that we are good neighbors.
    Aggregates are the chief ingredient in asphalt pavement and 
concrete and are used in nearly all residential, commercial, and 
industrial building construction and in most public works projects, 
including roads, highways, bridges, dams, and airports. A disruption in 
the aggregates supply chain can slow or stop these important projects 
and break crucial links in moving other goods across the U.S. 
Aggregates are used for many environmental purposes, including treating 
drinking water and in sewage treatment plants; for erosion control and 
stream restoration; and in cleaning air emissions from power plants. 
Biofiltration is a recent innovation where aggregates and organic 
materials are blended to create a mixture that removes substantial 
quantities of nitrogen and phosphorus from stormwater runoff, which is 
a significant benefit to water quality. While Americans take these 
essential natural materials for granted, they are imperative for 
construction. Unlike other businesses, we cannot simply choose where we 
operate. We are limited to where natural forces have deposited the 
materials we use. There are also competing land uses that can affect 
the feasibility of any project.
    Through its economic, social and environmental contributions, 
aggregates production helps to create sustainable communities and is 
essential to the quality of life Americans enjoy. Aggregates are a 
high-volume, low-cost product. Due to high product transportation 
costs, proximity to market is critical; thus, most congressional 
districts are home to an aggregates operation. Generally, if aggregates 
are transported outside a 25-mile limit, the cost of the material can 
increase substantially, in addition to creating higher air-borne 
emissions. Because so much of our material is used in public projects, 
any cost increases are ultimately borne by the taxpayer.
    As the industry that provides the basic material for everything 
from the roads on which we drive to purifying the water we drink, NSSGA 
members are deeply concerned that EPA's rushed and unnecessary new 
WOTUS rule will further complicate an already lengthy and burdensome 
process. The aggregates industry removes naturally occurring materials 
from the ground, then crushes and sorts them by size. Hazardous 
chemicals are not used, produced or discharged during removal or during 
the processing of aggregates. When aggregates producers are finished 
using the stone, sand or gravel in an area, they pay to return the land 
to other productive uses, such as residential development, nature 
preserves or water supply features.
    NSSGA members pride themselves on meeting or exceeding compliance 
with all pertinent environmental laws and regulations and emphasize 
sustainable practices. Luck Companies pays very close attention to our 
resources, particularly water. Careful design of our plants ensures 
that we maximize the recycling of precipitation and the reuse of all of 
our water supplies. Our associates live and play near our operations, 
and environmental stewardship is a key issue for all of us.
             The New WOTUS Rule is Confusing & Unnecessary
    We have been given multiple statements about the proposed rule by 
EPA. First, it was a simple withdrawal of the 2020 Navigable Waters 
Protection Act and a return to the pre-2015 regulatory framework. Now 
it is intended to be a ``durable'' rule, while at the same time the 
Supreme Court is considering an important case that could limit or 
eliminate the Significant Nexus Test, which this new rule is based on. 
EPA had no reason to rush this rule before the court decision. This is 
already the fifth rule change that the regulated community and 
regulators have experienced in the last 10 years, and the court 
decision could well require a sixth change. This adds to the time for 
all parties to understand a new rule that may only exist for a few 
months, which is an unnecessary drain on corporate and government 
resources.
    EPA claims this rule change is needed because so many waters are 
unprotected, but that is not true: states and local governments have 
rules that effectively manage these resources, and the pre-2015 
regulatory structure is currently in place. Additionally, states and 
many municipalities regulate any potential negative impacts to 
stormwater run-off and require detailed stormwater pollution prevention 
plans. These plans are required for every project, both during 
construction and operations. For example, I have a certification from 
the Commonwealth of Virginia to assess wetlands and water issues that 
are unique to the state. This is what the Congress intended with the 
Clean Water Act (CWA): states and local governments are best suited to 
regulate unique local environments and make land-use decisions that 
balance economic and environmental benefits. The 2020 rule provided the 
clarity that regulated companies like mine need to know--what is 
federally jurisdictional and what is not.
    This new rule poses more questions than it answers. For example, 
the rule includes exemptions for ditches, pits for fill and storage 
features used for water treatment. Looking closer, however, the 
conditions that these exemptions must fulfill are nearly impossible to 
meet in most cases, rendering them useless. For example, the rule says 
that ditches are exempt, unless they convey water from one wetland area 
to another that meets the jurisdictional definition. In my mind, the 
only purpose of a ditch is to convey water from someplace where you 
don't want it, so doesn't this make every ditch jurisdictional? Luck 
Companies wants to do things the right way, but this unclear rule makes 
it nearly impossible to know what the right way is. Clarity is key 
because operators are at risk of large fines and even jail time under 
the Clean Water Act.
    Before breaking ground, operators must always evaluate whether we 
are affecting jurisdictional water, which requires consultation with 
the Corps and often involves hiring a consultant. The delay caused by 
multiple rules and consultations, surveys, reports and individual 
wetland permits processed will add significant new costs during the 
permitting process which would lead to the abandonment of projects that 
were once considered viable. The aggregates industry requires large 
land areas to process and remove the extensive quantities of material 
needed for public works projects. This rule could effectively place 
many areas ``off limits'' due to the cost of new permits and/or the 
mitigation required to offset losses to now regulated ``waters,'' which 
may be mere depressions in the land, ditches or other features remote 
from navigable waters, worsening supply chain problems.
    Having a clear jurisdictional determination for each site is 
critical to the aggregates industry. These decisions impact the 
planning, financing, constructing and operation of aggregates 
facilities. The CWA 404 ``dredge and fill'' permitting process and the 
corresponding states' 401 Certification process is long and costly. 
Now, we must add a new set of unclear terms that may sweep in waters 
previously unregulated.
    While jurisdictional determinations are good for five years, as an 
industry we make business decisions to buy or lease properties to 
extract aggregates for very long terms; planning 15 to 30 years in 
advance is not uncommon in our industry. The companies in our industry 
are very concerned that past understandings of what would be 
jurisdictional will now be subject to additional review. A change in 
what is considered jurisdictional can have significant impacts on our 
material reserves, which will affect the life of our facilities and 
delay the startup of new sites. Ultimately, this change will disrupt 
the supply of aggregates to our biggest customers, which are government 
agencies; thus, affecting highway programs, airports and municipal 
projects.
    There is already inefficiency in the current regulatory system. 
However, adding vague terms and undefined concepts to an already 
complicated program is not the way to fix the problem. In some cases, 
this rule could have a negative effect on the environment and safety. 
Ditches without maintenance can degrade and lead to increased flooding 
or erosion and sediment issues.
    The mitigation for such impacts is also costly, difficult or even 
impossible to obtain. An expansion of the jurisdictional definition 
leads to the need for additional mitigation of those impacts. This has 
already led to a strain on the available mitigation resources for 
projects that are necessary for existing, approved transportation 
contracts. Approval of potential new mitigation banks is now estimated 
at five to nine years, and approval of permits depends on the 
availability of mitigation credits. Luck Companies has experienced 
delays that are directly tied to the lack of available credits. The 
approval of new credits is inevitably delayed, in part due to the 
outdated 2008 rule. Unlike WOTUS, this rule is in need of an update 
because mitigation science has expanded greatly since 2008, and an 
update that allows for banks that are constructing projects that are 
known to be beneficial should be approved more quickly. Instead of 
ensuring that this program was running as efficiently as possible 
before increasing the jurisdiction of WOTUS (and therefore the need for 
more mitigation banks and projects), this administration has made it 
more difficult for any projects to proceed, even those that benefit 
communities and the environment.
    EPA Flouted the Regulatory Flexibility Act and Disregarded Costs
    EPA should have undertaken a full evaluation of the effects that 
this rule will have on small businesses via a Small Business Advocacy 
Review (SBRFA) Panel. The proposed rule will put small businesses at 
risk of large daily fines if a permit is required and not obtained, 
which could wipe out a small business that does not realize a permit is 
needed for work far from ``navigable'' water. EPA bypassed the 
requirements to comply with the Regulatory Flexibility Act and failed 
to get input from affected small businesses before proposing a rule 
(see the U.S. Small Business Administration comments on the proposed 
rule, February 2, 2022).
    EPA's economic analysis of this rule does not accurately show what 
businesses like ours will end up paying, if this rule is finalized. 
Whenever jurisdiction is expanded, as this rule clearly does, 
additional features will be determined to be federally jurisdictional, 
and if impacted, will require replacement, typically at an increased 
ration, known as mitigation. Additional mitigation required under this 
rule can cost a new individual aggregates operation or expansion an 
additional million dollars or more in mitigation, and cause delays. For 
our business, time is a valuable asset. Any new requirements lead to a 
long learning curve for both the regulators and the regulated. Just 
getting a jurisdictional determination can take months and permits can 
take years; how much longer will it take to break ground with so many 
vague and undefined terms in this new rule?
    The proposed rule has no clear line on what is ``in'' and what is 
``out,'' making it very difficult for our industry and other businesses 
to plan new projects and make hiring decisions. If it is determined 
that development of a site will take too long or cost too much in 
permitting or mitigation, we won't move forward. This means that a 
whole host of economic activities in a community will not occur, all in 
the name of protecting a ditch or a farm pond.
    Another NSSGA member has described the impacts of fluctuating CWA 
jurisdictional rules (including the new Rule which may only be in 
effect for a short time, followed quickly by another based on the 
possible outcome of Sackett v EPA):

        Our business is very capital-intensive and typically viable 
        only if in operation for many decades. Aggregate companies 
        invest in land for future operations based on the quality of 
        the reserves and the proximity to areas of expected population 
        growth. Therefore, changes in the regulations during the 
        permitting process greatly influence the ability to obtain the 
        necessary permits. Finalizing a new WOTUS rule prior to the 
        Supreme Court's decision on the Sackett case will create 
        unnecessary hardships for our industry and further delays our 
        ability to supply the much-needed aggregates for our Country's 
        infrastructure. For just one of our properties, we have been 
        trying to get a permit for over six years, and this new rule 
        will just add to the delay, probably by years if this Rule is 
        allowed to go into effect. The Corps of Engineers issued the 
        original Jurisdictional Determination (JD) in late 2016. The 
        cost of evaluating the site and the JD approval was 
        approximately $330,000 and took over two years to complete. 
        Various other environmental studies were being performed and 
        finalized as well during this time period. The updated JD was 
        obtained under the 2020 WOTUS Rule in 2021 at a cost of 
        $30,000. This revised JD process took approximately nine months 
        before a decision was issued. An additional study was also 
        conducted to evaluate the quality and type of each wetland on 
        the site to re-evaluate this site in light of the Army Corps of 
        Engineers policy of not accepting decisions made under the 2020 
        rule. This additional effort costs approximately $180,000. 
        Total cost to date is $540,000 in the Section 404 permit 
        process alone. With the uncertainty surrounding this new rule 
        and a possible SCOTUS decision that could require yet another 
        rule, we could be looking at tens of thousands of dollars of 
        additional cost and further delay to account for additional 
        study and permitting. Mitigation costs of this site will be in 
        the millions, but we cannot proceed given the uncertainties of 
        the regulatory framework. Any new proposals or changes in the 
        Section 404 requirements will slow down the permitting process 
        and require additional costs and delays.

    Taken further, a significant reduction in aggregates production 
could lead to a shortage of construction aggregate, causing supply 
chain issues and raising the costs of concrete and hot mix asphalt 
products for state and federal road building and repair and commercial 
and residential construction. As material costs increase, supply 
becomes limited, which will further inflate prices and reduce growth 
and employment opportunities in our industry. Increases in costs of our 
materials for public works would be borne by taxpayers and delay road 
repairs and other crucial projects.
    NSSGA appreciates this opportunity to speak on the devastating 
effects of a broad expansion of CWA jurisdiction on the aggregates 
industry. Thank you, Mr. Chairman, and I will be happy to respond to 
any questions.

    Mr. Rouzer. Thank you, sir.
    Ms. Bodine.

 TESTIMONY OF SUSAN PARKER BODINE, PARTNER, EARTH & WATER LAW 
                              LLC

    Ms. Bodine. Thank you, Chairman Rouzer, Ranking Member 
Napolitano, and members of the subcommittee. Thank you for 
inviting me to testify today on the Biden administration's new 
waters of the United States rulemaking, the WOTUS rule.
    I am currently a partner with the firm Earth & Water Law. I 
have worked on Clean Water Act issues for my entire career, 
including while serving as a staff director of this 
subcommittee a long time ago and as chief counsel for the 
Senate Environment and Public Works Committee. So, my goal 
today is to help the subcommittee understand the scope and 
impact of this new rule.
    No one disputes the ecological value of wetlands or the 
importance of water, whether the wetland abuts a navigable 
water or is isolated, and whether the water is in a river, if 
it is rainfall, snowmelt, groundwater. But just because 
wetlands and water supplies are important does not mean that 
Congress gave EPA and the Corps of Engineers authority to 
regulate all water in the Nation under the Clean Water Act.
    As a former congressional staffer, I deeply respect the 
role of Congress in deciding where and when to grant Federal 
authority. As described in my written statement, in my view, 
the rule sets up a framework that would allow EPA and the Corps 
to expand their authority beyond that which was given to them 
by Congress.
    In particular, the rule allows the agencies to claim 
extremely broad authority over isolated ponds and wetlands that 
they have not attempted to regulate since the 2001 SWANCC 
decision.
    The actual impacts are difficult to quantify because the 
rule relies on case-by-case determinations. However, past 
experience, including examples of overreach in my written 
testimony, suggest that the agencies will aggressively claim 
authority over both land and water.
    When landowners, farmers, and municipalities later 
challenge that overreach, the agencies will tell the Court that 
they get deference because they are interpreting their own 
regulation.
    It is clear that the rule was designed to evade judicial 
review because most of the detail on how it is implemented is 
in the preamble and in these very lengthy, dense technical 
background documents. However, the new ``significant nexus'' 
test is in rule language and can be challenged on its face.
    The regulation says that EPA and the Corps can claim 
control over any tributary, adjacent wetland, or other lake, 
pond, stream, or wetland if they determine that it can 
significantly affect a navigable or interstate water or 
Territorial sea, including by providing, quote, ``habitat and 
food resources for aquatic species located in one of those 
waters.''
    The preamble uses connections between migrating salmon and 
the upper reaches of a tributary as an example of where this 
would apply. That is very disingenuous.
    If you look at the technical background document, you can 
see what the Corps and EPA really mean is that they can claim 
Federal control over water and wetlands because an animal can 
carry insects or algae on feathers and fur or in their 
intestines and travel between an isolated water and a navigable 
water.
    Agencies call this dispersal, and what they are really 
referring to is bird droppings and animal scat. I cannot see 
how the Supreme Court would ever uphold that as a test for 
establishing Federal control over land and water.
    It clearly falls within the admonition that Justice Breyer 
recently gave in the Maui case, which was a point source case, 
not a WOTUS case. But he said that the agency should not be 
regulating, quote, ``in surprising, even bizarre, 
circumstances, such as for pollutants carried to navigable 
waters on a bird's feathers,'' close quote.
    However, that is not the only example of surprising 
attempts to expand Federal authority in the rule. As described 
in my written statement, the rule embraces the concepts that 
erosional features created by runoff can be considered 
regulative tributaries; groundwater aquifers can create 
connections that would support jurisdiction over isolated 
waters; flows from back-to-back rainstorms can be considered 
relatively permanent water; and water and wetlands can be 
called adjacent if they overlay a karst geological formation.
    These interpretations will have enormous economic 
consequences for farmers, landowners, and municipalities. But 
the Biden administration rule does not even include many of the 
exclusions that were found in the 2015 WOTUS rule that included 
similar expansions of Federal authority.
    I would be happy to answer any questions.
    [Ms. Bodine's prepared statement follows:]

                                 
         Prepared Statement of Susan Parker Bodine,\1\ Partner,
                         Earth & Water Law LLC
---------------------------------------------------------------------------
    \1\ Former Senior Counsel and Subcommittee Staff Director, House 
Committee on Transportation and Infrastructure, Subcommittee on Water 
Resources and Environment; former Assistant Administrator, U.S. 
Environmental Protection Agency, Office of Solid Waste and Emergency 
Response (now Office of Land and Emergency Management); former Chief 
Counsel, Senate Committee on Environment and Public Works; former 
Assistant Administrator, U.S. Environmental Protection Agency, Office 
of Enforcement and Compliance Assurance. This testimony is on behalf of 
myself, not any organization.
---------------------------------------------------------------------------
    Chairman Rouzer, Ranking Member Napolitano, and members of the 
Subcommittee, thank you for the invitation to testify today on the 
Biden administration's final rule revising the definition of ``Waters 
of the United States'' (WOTUS).\2\ I am currently a partner with the 
firm Earth & Water Law. I have worked on Clean Water Act (CWA) issues 
for my entire career, including while serving as staff director of this 
subcommittee and as chief counsel for the Senate Environment and Public 
Works Committee.
---------------------------------------------------------------------------
    \2\ 88 Fed. Reg. 3004 (Jan. 18, 2023).
---------------------------------------------------------------------------
    My goal today is to help the Subcommittee understand the scope and 
impacts of this new rule and clarify some of the statements made by EPA 
and the Corps in their preamble and background documents.
    I want to make three points. First, the history of the CWA is a 
history of ever-expanding federal regulation through administrative 
interpretations, without any change in the statute. For this reason, 
the claims by EPA and the Corps of Engineers (the agencies) that the 
rule is simply a return to the ``pre-2015 regulatory regime'' \3\ is a 
myth. Second, it has required the intervention of the courts to push 
back on agency overreach. Third, the agencies have inaccurately 
characterized the 2023 WOTUS rule as a codification of Justice Scalia's 
and Justice Kennedy's opinions in Rapanos.\4\ Instead, rule is a 
codification of the agencies' prior overreach and an attempt to get 
judicial deference for that overreach.
---------------------------------------------------------------------------
    \3\ 88 Fed. Reg. at 3046.
    \4\ Rapanos v. United States, 547 U.S. 715 (2006).
---------------------------------------------------------------------------
                I. The Ever-Expanding CWA Jurisdiction.
    No one disputes the ecological value of wetlands or the importance 
of water, whether the wetland abuts a navigable water or is isolated, 
and whether water is in a river or is rainfall, snowmelt, or 
groundwater. But just because wetlands and water supplies are important 
does not mean that Congress gave EPA and the Corps authority to 
regulate all water in ``the Nation'' under the CWA. As a former 
Congressional staffer, I deeply respect the role of Congress in 
deciding where and when to grant federal authority.
    In 1972, Congress did not tell EPA and the Corps: ``do whatever you 
think is necessary to protect water.'' Instead, the CWA represents a 
legislative compromise that carefully prescribes the scope of federal 
authority. For example, Congress was well aware of the importance of 
groundwater, but deliberately excluded groundwater from the regulatory 
provisions of the CWA. Congress was well aware of the ecological 
importance of wetlands, but as recognized in the 1973 final report of 
the congressionally chartered National Water Commission, Congress left 
the regulation of isolated wetlands and waters to the states.\5\ 
Congress was well aware that nonpoint sources contributed to water 
pollution, but Congress deliberately excluded nonpoint sources from the 
regulatory authority of the Act. Congress was well aware of the 
importance of water supplies, but deliberately refrained from 
regulating water supply in the CWA.
---------------------------------------------------------------------------
    \5\ See National Water Commission (June 1973), Water Policies For 
The Future: Final Report to the President and to the Congress of the 
United States at 200-201, 279 (identifying regulation of intrastate, 
non-navigable water as a gap in federal jurisdiction and recommending 
state protections).
---------------------------------------------------------------------------
    But lack of a grant of authority from Congress has not stopped 
federal agencies from trying to expand their control. As noted by 
Justice Scalia in Rapanos, the agencies have sought to broaden federal 
jurisdiction through a series of actions over the course of many 
years.\6\
---------------------------------------------------------------------------
    \6\ Rapanos at 725 (``Following our decision in Riverside Bayview, 
the Corps adopted increasingly broad interpretations of its own 
regulations under the Act.'').
---------------------------------------------------------------------------
    In 1973, EPA issued regulations that expanded federal authority to 
intrastate lakes rivers and streams based on use by interstate 
travelers, use for fishing for sale in interstate commerce, and use by 
industries engaging in interstate commerce.\7\ This claim of authority 
was not grounded in Congress' authority over navigation and was called 
into question by the Supreme Court in SWANCC.\8\
---------------------------------------------------------------------------
    \7\ 40 C.F.R. 125.1 (1973); 38 Fed. Reg. 13,528, 13,529 (May 22, 
1973).
    \8\ Solid Waste Agency of Northern Cook County v. U.S. Army Corps 
of Engineers (SWANCC), 531 U.S. 159, 171-72 (2001).
---------------------------------------------------------------------------
    In 1977, federal agencies floated the idea that the CWA could be 
used to regulate groundwater withdrawals and surface water diversions 
because water quantity is related to water quality.\9\ In response, 
Congress added section 101(g) to the CWA to halt that effort.\10\
---------------------------------------------------------------------------
    \9\ See 42 Fed. Reg. 36,787, 36,793 (July 15, 1977).
    \10\ According to its sponsor, section 101(g) reaffirms 
Congressional intent to use the Federal Water Pollution Control Act to 
address water pollution only: ``This amendment came immediately after 
the release of the Issue and Option Papers for the Water Resource 
Policy Study now being conducted by the Water Resources Council. . . . 
This `State's jurisdiction' amendment reaffirms that it is the policy 
of Congress that this act is to be used for water quality purposes 
only.'' 123 Cong. Rec. 39, 211-12 (1977) (floor statement of Senator 
Wallop).
---------------------------------------------------------------------------
    In 1977, the Corps expanded its interpretation of the term 
tributary. Even though the preamble to the Corps' 1975 interim final 
regulations specified that the upstream limit of jurisdiction is the 
headwaters or a point where average annual stream flow is five cubic 
feet per second,\11\ the preamble to the Corps' 1977 regulations 
instead specified that jurisdiction extends to the entire surface 
tributary system.\12\ This expansion of the scope of regulated 
tributaries was later called into question by the Supreme Court in 
Rapanos.
---------------------------------------------------------------------------
    \11\ 40 Fed. Reg. 31,320, 31,321 (July 25, 1975).
    \12\ 42 Fed. Reg. at 37,129.
---------------------------------------------------------------------------
    In 1985, the EPA General Counsel tried to expand EPA's 
interpretation of the CWA even further by issuing a memorandum stating 
that ``other waters'' (not navigable, interstate, tributary, or 
adjacent) that are used or would be used by migratory birds or 
endangered species are categorically regulated under the CWA.\13\ In 
1986, the Corps adopted EPA's expansive interpretation and, in a 
preamble, claimed that it could presume jurisdiction under the Commerce 
Clause over isolated, intrastate waters:
---------------------------------------------------------------------------
    \13\ Memorandum from Francis S. Blake, EPA General Counsel, to 
Richard E. Samderson, Acting Assistant Administrator, EPA Office of 
External Affairs (Sept. 12, 1985).
---------------------------------------------------------------------------
    a.  which are or would be used as habitat by birds protected by 
Migratory Bird Treaties; or
    b.  which are or would be used as habitat by other migratory birds 
which cross state lines; or
    c.  which are or would be used as habitat for endangered species; 
or
    d.  used to irrigate crops sold in interstate commerce.\14\
---------------------------------------------------------------------------
    \14\ 51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986).

    Under this theory, the Corps could claim jurisdiction over any 
isolated wetland, pond, or puddle based on its potential use by a 
migratory bird. As such, it became known as the ``Migratory Bird Rule'' 
or the ``Glancing Goose'' test.\15\
---------------------------------------------------------------------------
    \15\ See January 16, 2001, Wall Street Journal, available at http:/
/www.wsj.com/articles/SB979603030985179200
---------------------------------------------------------------------------
    In 1986, the Corps removed an exclusion for ditches from its 
regulations.\16\
---------------------------------------------------------------------------
    \16\ 51 Fed. Reg. at 41,217.
---------------------------------------------------------------------------
    In 2000, in the preamble of its Nationwide Permits, the Corps 
specified that federal jurisdiction extends to ephemeral flows, if the 
Corps believes they can see an ordinary high-water mark.\17\ This 
further expansion of the definition of tributary based on an ordinary 
high-water mark also is questioned by the Rapanos case.
---------------------------------------------------------------------------
    \17\ 65 Fed. Reg. 12,818, 12,823 (Mar. 9, 2000).
---------------------------------------------------------------------------
    In 2008, the Corps issued guidance that allows the Corps to claim 
jurisdiction over dry land in the arid west based on a 5-to-10-year 
flood event.\18\ Use of the floodplain in lieu of an ordinary high-
water mark to expand the definition of a tributary in the arid west is 
embraced in the 2023 WOTUS Rule.\19\
---------------------------------------------------------------------------
    \18\ A Field Guide to the Identification of the Ordinary High-Water 
Mark (OHWM) in the Arid West Region of the Western United States A 
Delineation Manual, Robert W. Lichvar and Shawn M. McColley August 
2008, at 31-32 (recommending use of a 5-to-10-year precipitation event 
to establish federal jurisdiction over the entire floodplain).
    \19\ 88 Fed. Reg. at 3083; Technical Support Document for the Final 
``Revised Definition of the Waters of the United States'' Rule (Dec. 
2022), at 165.
---------------------------------------------------------------------------
  II. Judicial Push-Back on Claims of Expansive Federal Jurisdiction.
    In the last twenty years, the Supreme Court has pushed back four 
times on broad authority claimed by EPA and the Corps under the CWA.
    In the 2001 SWANCC decision, the Supreme Court rejected the 
``Migratory Bird Rule.'' The Court found no evidence that Congress 
acquiesced to ``the Corps' claim of jurisdiction over nonnavigable, 
isolated, intrastate waters,'' and declined to hold ``that isolated 
ponds, some only seasonal, wholly located within two Illinois counties, 
fall under Sec.  404(a)'s definition of `navigable waters' because they 
serve as habitat for migratory birds.'' \20\ Importantly, the Court 
held that CWA jurisdiction was an exercise of Congress' authority over 
navigation--hence the regulatory reach of the Act protects waters based 
on their use as channels of commerce, not use as habitat. That is why 
this Committee has jurisdiction over the CWA, not the Committee on 
Natural Resources.
---------------------------------------------------------------------------
    \20\ Solid Waste Agency of Northern Cook County v. U.S. Army Corps 
of Engineers (SWANCC), 531 U.S. 159, 171-72 (2001).
---------------------------------------------------------------------------
    Concern that the agencies were exceeding their statutory authority 
reached the Supreme Court again in 2006. In the Rapanos case both the 
plurality opinion, authored by Justice Scalia, and Justice Kennedy's 
concurring opinion, held that the Corps did not demonstrate that it 
could regulate wetlands adjacent to a ditch in Michigan. Justice 
Scalia's opinion held that CWA jurisdiction extended to ``relatively 
permanent'' waters and wetlands that abut those waters.\21\ Justice 
Kennedy's opinion held that ``to constitute `navigable waters' under 
the Act, a water or wetland must possess a `significant nexus' to 
waters that are or were navigable in fact or that could reasonably be 
so made.'' \22\ Importantly, neither Justice Scalia nor Justice Kennedy 
agreed that finding an ordinary high water mark was sufficient to 
establish federal jurisdiction.\23\
---------------------------------------------------------------------------
    \21\ Rapanos at 739, 742.
    \22\ Id. at 759.
    \23\ 547 U.S. at 725 (criticizing the Corps' use of an ordinary 
high water mark to establish jurisdiction noting that ``[t]his 
interpretation extended `the waters of the United States' to virtually 
any land feature over which rainwater or drainage passes and leaves a 
visible mark--even if only `the presence of litter and debris' '') 
(plurality opinion); 547 U.S. at 781 (criticizing use of an ordinary 
high water mark to delineate tributaries because ``breadth of this 
standard--which seems to leave wide room for regulation of drains, 
ditches, and streams remote from any navigable-in-fact water and 
carrying only minor water volumes toward it--precludes its adoption as 
the determinative measure of whether adjacent wetlands are likely to 
play an important role in the integrity of an aquatic system comprising 
navigable waters as traditionally understood (J. Kennedy, concurring).
---------------------------------------------------------------------------
    In 2012, the Supreme Court reviewed EPA's claim that it could order 
a couple to stop building a house and that the CWA did not allow the 
couple to challenge that order until EPA brought an enforcement action. 
In the Sackett case, a unanimous Supreme Court disagreed with EPA and 
held that the administrative order requiring a couple to stop building 
a house was juridically reviewable.\24\ During the oral argument the 
Justices were appalled by the admission of the Deputy Solicitor General 
that EPA's claim of jurisdiction was only ``initial,'' EPA believed it 
could issue an order without doing a sufficient investigation, and if 
the homeowner wanted to appeal a jurisdictional determination they had 
to first submit themselves to federal jurisdiction and make a permit 
application.\25\
---------------------------------------------------------------------------
    \24\ Sackett v. EPA, 566 U.S. 120 (2012).
    \25\ Transcript of oral argument, Sackett v. United States, Sup. 
Ct. No. 10-1062, at 52-53, 58.
---------------------------------------------------------------------------
    In the 2016 Hawkes case the Supreme Court held that a landowner 
could get judicial review of a Corps jurisdictional determination that 
a peat farm 95 miles from the nearest navigable river was 
regulated.\26\ Tellingly, in his concurring opinion in Hawkes, Justice 
Kennedy, the author of the ``significant nexus'' test, called the reach 
of the Act ``ominous'' and said ``[t]he Act . . . continues to raise 
troubling questions the Government's power to cast doubt on the full 
use and enjoyment of private property throughout the Nation.'' \27\ On 
January 24, 2017, following the Court's remand, the District Court for 
the District of Minnesota found that the record relied on by the Corps 
to assert jurisdiction in Hawkes continued to fail to demonstrate that 
a peat farm located more than 90 miles from the nearest navigable water 
was a water of the United States. In the record for that case, the 
Corps' relied on the same type of connections that would establish 
jurisdiction under the 2023 WOTUS Rule (the functions of wetlands in 
providing floodwater storage and in retaining nutrients and sediments, 
functions of streams and rivers and transport of nutrients and 
chemicals downstream). The court said that the Corps' reliance on these 
connections, in the absence of any data on the frequency, volume, and 
type of actual (not hypothetical) flow from the peat farm to the river, 
to claim a ``significant'' nexus was ``arbitrary and capricious.'' \28\
---------------------------------------------------------------------------
    \26\ U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. 590, 598 
(2016).
    \27\ 578 U.S. at 602.
    \28\ Hawkes Co., Inc., et al. v. U.S. Army Corps of Engineers, D. 
Minn., Civil No. 13-107 Memorandum Opinion and Order, January 24, 2017. 
The Corps finally gave up trying to regulate the Hawkes peat farm.
---------------------------------------------------------------------------
    Finally, even though it did not involve the definition of WOTUS, in 
the recent Maui case, Justice Breyer rejected the idea that the CWA 
would regulate ``in surprising, even bizarre, circumstances, such as 
for pollutants carried to navigable waters on a bird's feathers.'' \29\ 
Yet, as discussed below, the 2023 Rule's ``significant nexus'' test 
would do just that.
---------------------------------------------------------------------------
    \29\ Cty. Of Maui, Hawaii v. Hawai'i Wildlife Fund, 140 S. Ct. 
1462, 1471 (2020).
---------------------------------------------------------------------------
   III. The 2023 WOTUS Rule and Examples of Overreach That Would be 
                        Condoned Under the Rule.
    In the 2023 WOTUS Rule (like the 2015 rule) the agencies are trying 
to codify the authority to expand their jurisdiction with case-by-case 
determinations by field staff and get judicial deference for those 
actions. They justify this action by claiming that the rule is 
implementing both Justice Scalia's and Justice Kennedy's opinions in 
Rapanos.
    The final rule is superficially familiar, regulating traditional 
navigable waters, territorial seas, interstate waters (including 
interstate wetlands),\30\ impoundments, tributaries, and adjacent 
wetlands. However, for the first time since the 2001 SWANCC decision, 
under the 2023 WOTUS rule the agencies also will claim jurisdiction 
over ``other waters,'' i.e., all other intrastate lakes, ponds, 
streams, and wetlands (1) that are relatively permanent and that have a 
relatively permanent connection to navigable or interstate waters or 
territorial seas or relatively permanent tributaries, or (2) that the 
agencies believe significantly affect the chemical, physical, or 
biological integrity of navigable or interstate waters or territorial 
seas.
---------------------------------------------------------------------------
    \30\ Although the statute does not include interstate waters in its 
definition of navigable waters, the agencies claim authority over all 
interstate waters and wetlands with no showing of any connection to 
navigable waters or territorial seas, citing their general Commerce 
Clause authority, even though the SWANCC case said jurisdiction had to 
be based on Congress' authority over navigation. 88 Fed. Reg. at 3073.
---------------------------------------------------------------------------
    The rule language and, in particular, the guidance provided in the 
preamble and background documents, encourage the agencies to indulge in 
the same overreach that has been a concern of farmers, landowners, 
municipalities, and Congress for many years. The agencies do that by 
codifying the concept that CWA jurisdiction covers all waters with a 
``significant nexus'' to a navigable water, interstate water, or a 
territorial sea. This argument is loosely based on Justice Kennedy's 
Rapanos opinion but would codify the practices that concerned Justice 
Kennedy in both the Rapanos and the Hawkes cases. The agencies also 
purport to codify the ``relatively permanent'' waters standard from 
Justice Scalia's plurality opinion in Rapanos. However, as described 
below, the 2023 WOTUS rule stretches that standard beyond recognition.
    The agencies attempt to assure Congress and the public that 
regulatory exemptions will protect farmers and landowners. However, 
their own history of applying those exemptions demonstrates that this 
assertion is not true.
A. ``Relatively Permanent'' Test.
    Under the final rule a tributary is federally regulated if it is a 
``relatively permanent, standing or continuously flowing body of 
water.'' \31\ Wetlands that are adjacent to ``relatively permanent'' 
waters and with a ``continuous surface connection'' to those waters 
also are federally regulated.\32\ Finally all other intrastate lakes, 
ponds, streams, and wetlands are federally regulated if they are 
``relatively permanent'' and have a ``continuous surface connection'' 
to a relatively permanent water.\33\ The agencies decide on a case-by-
case basis whether a water body is relatively permanent and whether the 
connection is continuous.
---------------------------------------------------------------------------
    \31\ 33 C.F.R. 328(a)(3)(i).
    \32\ 33 C.F.R. 328(a)(4)(ii).
    \33\ 33 C.F.R. 328(a)(5)(i).
---------------------------------------------------------------------------
    Perhaps concerned that in its forthcoming Sackett decision the 
Supreme Court will disallow use of the ``significant nexus'' standard 
to find federal jurisdiction, EPA and the Corps have expanded the 
``relatively permanent'' standard.
    Justice Scalia's plurality opinion in Rapanos held that the CWA 
authorized federal control over ``only those relatively permanent, 
standing or continuously flowing bodies of water `forming geographic 
features' that are described in ordinary parlance as `streams[,] . . . 
oceans, rivers, [and] lakes.' '' \34\ Justice Scalia emphasized that 
relatively permanent waters do not include tributaries ``whose flow is 
`[c]oming and going at intervals . . . [b]roken, fitful' or `existing 
only, or no longer than, a day . . .'' \35\ Accordingly, the 2008 
Rapanos Guidance (which is now revoked by the 2023 WOTUS Rule) 
interpreted relatively permanent to mean only those non-navigable 
tributaries that flowed continuously or that had continuous flow at 
least seasonally (typically three months).\36\ Further, in 2008 EPA and 
the Corps determined that ``relatively permanent'' waters do not 
include ephemeral tributaries which flow only in response to 
precipitation and intermittent streams which do not typically flow 
year-round or have continuous flow at least seasonally.\37\
---------------------------------------------------------------------------
    \34\ Rapanos, at 739.
    \35\ Rapanos, at 733.
    \36\ U.S. EPA & U.S. Army Corps of Engineers, Clean Water Act 
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. 
United States & Carabell v. United States (Dec. 2, 2008), at 1.
    \37\ Rapanos Guidance, at 7.
---------------------------------------------------------------------------
    In contrast, in the 2023 WOTUS Rule, water from ``back-to-back 
precipitation events'' can be considered relatively permanent flow.\38\ 
Under that interpretation, the agencies could argue that almost any 
ditch or stormwater control feature in parts of California is a 
relatively permanent WOTUS as a result of repeated storms.\39\
---------------------------------------------------------------------------
    \38\ 88 Fed. Reg. at 3086.
    \39\ See Appendix A, Exhibit 1.
---------------------------------------------------------------------------
    Under the 2023 WOTUS Rule, the agencies don't even need to observe 
water to identify a ``relatively permanent'' tributary, wetland, pond, 
or puddle. Biological indicators, including the presence of aquatic 
insects or plant, can be used to determine that a tributary is 
relatively permanent.\40\ An ordinary high-water mark also can be used 
to determine that a tributary is relatively permanent even though, as 
noted above, both Justice Scalia and Justice Kennedy agreed that an 
ordinary high-water mark was not sufficient to establish CWA 
jurisdiction.\41\
---------------------------------------------------------------------------
    \40\ 88 Fed. Reg. at 3087-88.
    \41\ Id.
---------------------------------------------------------------------------
    Further, when regulating a wetland that is adjacent to a relatively 
permanent water, the regulatory text does not require a relatively 
permanent hydrological connection. Only the geographic or artificial 
feature that forms the connection needs to be continuous.\42\
---------------------------------------------------------------------------
    \42\ Id. at 3092, 3117. See also, id. at 3096 (``A continuous 
surface connection is not the same as a continuous surface water 
connection, by its terms and in effect.'')
---------------------------------------------------------------------------
B. ``Significant Nexus'' Test.
    Under the final rule the agencies can regulate a tributary that 
lacks ``relatively permanent'' flow if, on a case-by-case basis, EPA or 
the Corps decide that it ``significantly affects the chemical physical, 
or biological integrity'' of a navigable or interstate water or a 
territorial sea.\43\ Adjacent wetlands also can be regulated based on 
such effects.\44\ Finally all other intrastate lakes, ponds, streams, 
and wetlands also are federally regulated if the Corps or EPA determine 
that they ``significantly affect the chemical physical, or biological 
integrity'' of a navigable or interstate water or a territorial 
sea.\45\
---------------------------------------------------------------------------
    \43\ 33 C.F.R. 328(a)(3)(ii).
    \44\ 33 C.F.R. 328(a)(4)(iii).
    \45\ 33 C.F.R. 328(a)(5)(ii).
---------------------------------------------------------------------------
    Jurisdiction based on a ``significant nexus'' to navigable water is 
not a long-standing agency interpretation of the Act. In 2009, the 
agencies took the position that the Rapanos case severely limited their 
jurisdiction and encouraged Congress to act.\46\ Some members of 
Congress introduced legislation to remove the term ``navigable'' from 
the CWA.\47\ After that legislation failed to advance over the course 
of two Congresses, in 2011 the agencies changed their strategy and 
developed a draft guidance to reinterpret both the CWA and Justice 
Kennedy's opinion.\48\
---------------------------------------------------------------------------
    \46\ See May 20, 2009, letter from CEQ Chairman Nancy Sutley, EPA 
Administrator Jackson, Acting Assistant Secretary of the Army Rock 
Salt, Agriculture Secretary Tom Vilsack, and Interior Secretary Ken 
Salazar to Senator Boxer.
    \47\ The Clean Water Restoration Act (HR 2421 and S. 1870 110th 
Congress; S. 787 111th Congress).
    \48\ EPA and Army Corps of Engineers Guidance Regarding 
Identification of Waters Protected by the Clean Water Act,'' 76 Fed. 
Reg. 24,479 (May 2, 2011).
---------------------------------------------------------------------------
    The logic for the new interpretation goes as follows: federal 
jurisdiction over water is as broad as the objective of the CWA set 
forth in section 101(a) (stating that the objective of the Act is ``to 
restore and maintain the chemical, physical and biological integrity of 
the Nation's waters''). Continuing the logic: a ``significant nexus'' 
to navigable water can be formed by any chemical, physical, or 
biological connection.
    Far from being grounded in Justice Kennedy's Rapanos concurrence, 
this interpretation of the CWA is in fact based on Justice Steven's 
dissenting opinion and an amicus brief he cited in support.\49\
---------------------------------------------------------------------------
    \49\ SWANCC, 531 U.S. at 176 n. 2 (Justice Stevens, dissenting); 
Brief for Dr. Gene Likens et al. as Amici Curiae in SWANCC. This brief 
was included in the docket for the 2015 WOTUS rule, document no. EPA-
HQ-OW-2011-0880-8591.
---------------------------------------------------------------------------
    This interpretation is deeply flawed. First, it turns an objective 
of a law into an operative jurisdictional statement, despite 
admonitions against doing so by the Supreme Court.\50\ Second, it 
violates a standard canon of statutory interpretation by reading the 
terms ``chemical, physical, and biological integrity'' in section 
101(a) of the Act to refer to the scope of waters to be protected even 
though in the seven other places where that phrase is used in the Act, 
it refers to the level of protection for the waters that are already 
subject to the Act.\51\ Even Justice Kennedy considered such an 
interpretation of his ``significant nexus'' test to be an 
overreach.\52\ Finally, the agencies' legal interpretation takes a term 
used once in the CWA, ``Nation's waters,'' and assumes that this term 
is equivalent to the term ``waters of the United States.'' That 
assumption also violates principles of statutory interpretation. 
Congress is assumed to mean different things when it uses different 
terms.\53\ The ``Nation's waters'' addressed by the CWA through 
nonregulatory programs includes waters that are not WOTUS. In fact, the 
policies and goals listed in section 101(a) include ``the national 
policy that areawide treatment management planning processes be 
developed and implemented to assure adequate control of sources of 
pollutants in each State,'' a provision of the Act that expressly 
addresses waters that are not regulated at the federal level.\54\
---------------------------------------------------------------------------
    \50\ The Supreme Court has stated, ``it frustrates rather than 
effectuates legislative intent simplistically to assume that whatever 
furthers the statute's primary objective must be the law.'' Rodriguez 
v. United States, 480 U.S. 522, 526 (1987). The Rapanos plurality made 
the same point: ``This is the familiar tactic of substituting the 
purpose of the statute for its text, freeing the Court to write a 
different statute that achieves the same purpose. . . . It would have 
been an easy matter for Congress to give the Corps jurisdiction over 
all wetlands (or, for that matter, all dry lands) that ``significantly 
affect the chemical, physical, and biological integrity of'' waters of 
the United States. It did not do that, but instead explicitly limited 
jurisdiction to ``waters of the United States.'' Rapanos, 547 U.S. at 
755-56 (2006) (Scalia, J., plurality).
    \51\ See 33 U.S.C. Sec.  1362(11), Sec.  1362(15), Sec.  1362(19), 
Sec.  1314(a)(1)(B), Sec.  1314(b)(1)(A), Sec.  1254(b), and Sec.  
1255(d)(3). A term appearing in several places in a statutory text is 
generally read the same way each time it appears.'' Ratzlaf v. United 
States, 510 U.S. 135, 143 (1994); Antonin Scalia and Bryan Garner, 
Reading Law: The Interpretation of Legal Texts (2012), at 170 
(discussing the ``Presumption of Consistent Usage'' canon) (hereinafter 
``Reading Law'').
    \52\ U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. at 602 
(concurring opinion by Justice Kennedy ``point[ing] out that, based on 
the Government's representations in this case, the reach and systemic 
consequences of the Clean Water Act remain a cause for concern'' and 
referring to the ``ominous reach'' of the Act).
    \53\ Reading Law, at 170 (presumption of consistent usage also 
means that a material variation in words suggests a variation in 
meaning).
    \54\ CWA section 101(a)(5), referring to section 208 of the Act, 
which encourages the development of plans to address ``substantial 
water quality control problems,'' including identifying pollution 
problems associated with nonpoint sources, saltwater intrusion, and 
pollution of groundwater, all of which fall outside the regulatory 
reach of the Act. See CWA section 208(a)(1) and (b)(2)(F), (I), and 
(K).
---------------------------------------------------------------------------
    To support expanded jurisdiction under the 2023 WOTUS Rule, the 
agencies now claim that an isolated water can affect the ``biological 
integrity'' of a navigable water.\55\ The preamble uses anadromous 
fish, like salmon, to provide an example of biological connections.\56\ 
To understand what the agencies really mean, one has to read the 
Technical Support Document. That document reveals that the agencies 
believe they can claim jurisdiction over an isolated water if they 
determine that birds can fly from the isolated water to a navigable 
water and leave bird droppings that contain seeds of aquatic plants or 
they determine that beavers that live in the isolated water can move 
from the pond to a tributary of a navigable water and leave scat that 
includes larva of aquatic insects.\57\ The agencies call this 
``dispersal.''
---------------------------------------------------------------------------
    \55\ 33 C.F.R. 328.3(c)(6).
    \56\ 88 Fed. Reg. at 3021.
    \57\ See Technical Support Document, at 209 and studies cited 
including Figuerola, J., and A.J. Green. 2002. ``Dispersal of Aquatic 
Organisms by Waterbirds: A Review of Past Research and Priorities for 
Future Studies.'' Freshwater Biology 47:483-494; Figuerola, J., et al. 
2005. ``Invertebrate Eggs Can Fly: Evidence of Waterfowl-Mediated Gene 
Flow in Aquatic Invertebrates.'' American Naturalist 165:274-280; 
dispersal capacity of a broad spectrum of aquatic invertebrates via 
waterbirds,'' Aquatic Sciences 69:568-574 (2007); and Roscher, J. P., 
``Alga dispersal by muskrat intestinal contents,'' Transactions of the 
American Microscopical Society 86:497-498 (1967).
---------------------------------------------------------------------------
    The Technical Support Document is replete with examples of 
``dispersal studies'' that purportedly support jurisdiction over 
isolated waters. These include studies of mammals ``that can disperse 
overland,'' insects that ``hitchhike on birds and mammals from non-
floodplain wetlands to the stream network,'' insects ``that are flight-
capable,'' and ``frogs, toads, and newts'' that ``move between streams 
or rivers and non-floodplain ``other waters.'' \58\ The Technical 
Support Document even cites papers to support the idea that the 
agencies can assert federal jurisdiction over land and water based on 
the hypothesis that birds transport fairy shrimp to vernal pools.\59\ 
In all, the Technical Support Document uses the word ``dispersal'' 140 
times.
---------------------------------------------------------------------------
    \58\ Technical Support Document, at 212.
    \59\ Technical Support Document, at 64, 548.
---------------------------------------------------------------------------
    In the preamble, the agencies repeatedly state that they will not 
base federal jurisdiction over isolated waters on use of water as 
habitat by migratory birds. However, this claim is disingenuous. Rather 
than relying on use of a water body by a bird, the Technical Support 
Document makes it clear that they will assert jurisdiction based on 
dispersal of insects and plants by a bird.
    Jurisdiction based on dispersal of biota is likely to become the 
new ``Glancing Goose'' test. The Technical Support Document states 
that: ``Biological connections are likely to occur between most non-
floodplain wetlands and downstream waters through either direct or 
stepping stone movement of amphibians, invertebrates, reptiles, 
mammals, and seeds of aquatic plants, including colonization by 
invasive species.'' \60\ The Technical Support Document further states 
that ``[e]mergent and aquatic vegetation found in non-floodplain `other 
waters' disperse downstream by water, wind, and hitchhiking on (i.e., 
adhering to) migratory animals'' (emphasis added).\61\
---------------------------------------------------------------------------
    \60\ Technical Support Document, at 22.
    \61\ Technical Support Document, at 209.
---------------------------------------------------------------------------
    The 2023 WOTUS Rule preamble claims its ``significant nexus'' 
standard is based on protection of water quality.\62\ However, in the 
2023 WOTUS Rule for the first time ever the agencies claim that they 
consider the presence of animals to be water quality parameters.\63\
---------------------------------------------------------------------------
    \62\ See 88 Fed. Reg. at 3034 (``The standard is consistent with 
the plain language of the Act's objective because it is based upon 
effects on the water quality of paragraph (a)(1) waters . . .'').
    \63\ See Section 12 of the Response to Comments Document, at 46 
(describing storage of water and providing habitat for aquatic species 
as functions that improve water quality).
---------------------------------------------------------------------------
    Contrary to this novel interpretation of the CWA, there is no basis 
in the text or history of the CWA to support the idea that federal 
jurisdiction is based on the movement of animals. Water quality is the 
presence or absence of pollution that impacts the ability of a body of 
water to meet its designated uses. As stated in section 101(a)(1), 
water quality ``provides for the protection and propagation of fish, 
shellfish, and wildlife and provides for recreation in and on the 
water.'' It is not the presence or absence of an animal or recreation 
itself. Despite this fact, the 2023 WOTUS Rule allows the federal 
government to assert jurisdiction over water based on functions such as 
``provision of habitat and food resources for aquatic species located 
in [navigable or interstate waters or territorial seas].'' \64\
---------------------------------------------------------------------------
    \64\ 33 C.F.R. 328.3(c)(6)(i)(E).
---------------------------------------------------------------------------
    To support expanded jurisdiction under the 2023 WOTUS Rule, the 
agencies also claim that an isolated water can affect the integrity of 
a navigable water by either preventing or contributing water flows.\65\ 
These flows include overland sheet flow spilling from a wetland \66\ 
and contributions to groundwater that later recharges to surface 
water.\67\ They make this claim even though claiming jurisdiction based 
on water supply functions contravenes section 101(g) of the CWA. 
Further, in 2015 the Corps' Assistant Secretary of the Army (Civil 
Works), Jo-Ellen Darcy, responded to written congressional questions 
stating that: ``The Corps has never interpreted groundwater to be 
jurisdictional water or a hydrologic connection because the Clean Water 
Act (CWA) does not provide such authority.'' \68\ Despite the admission 
that groundwater connections are not a basis for jurisdiction the 
Technical Support Document for the 2023 WOTUS Rule does just that, 
finding that ``[n]on-floodplain wetlands and open waters are frequently 
connected to their local and regional aquifers, and hence to the stream 
networks, through groundwater flows.'' \69\
---------------------------------------------------------------------------
    \65\ 33 C.F.R. 328.3(c)(6)(i)(A) and (C).
    \66\ 88 Fed. Reg. at 3094 (discussing water spilling from 
wetlands).
    \67\ 88 Fed. Reg. at 3033, 3120 (discussing groundwater recharge 
from wetlands).
    \68\ See Response to Follow-Up Questions for Written Submission to 
Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) (June 2, 
2015) (emphasis added) (attached).
    \69\ TSD, at 65 (citations omitted).
---------------------------------------------------------------------------
    The agencies claim that the rule relies on their ``extensive 
experience'' in making jurisdictional determinations.\70\ However, 
those claims were thoroughly rebutted by internal Corps of Engineers 
memoranda repudiating the suggestion that the Corps' experience 
supports the significant nexus framework of the 2015 Rule, which is 
repeated in the 2023 WOTUS Rule.\71\
---------------------------------------------------------------------------
    \70\ The preamble to the final rule makes this claim at least eight 
times.
    \71\ See April 24, 2015, Memorandum from Lance Wood to MG Peabody 
(legal analysis); April 24, 2015, memorandum from Jennifer Moyer to MG 
Peabody (technical analysis), introduced into the record of S. Hrg. 
114-203, ``Oversight of the Army Corps of Engineers' Participation in 
the Development of the New Regulatory Definition of ``Waters of the 
United States,'' before the Senate Environment and Public Works 
Committee, Sept. 30, 2015, and available at https://www.congress.gov/
114/chrg/CHRG-114shrg99458/CHRG-114shrg99458.pdf
---------------------------------------------------------------------------
    As the agencies admit, they have no experience asserting 
jurisdiction over intrastate, nonnavigable waters based on 
``significant nexus.'' \72\
---------------------------------------------------------------------------
    \72\ 88 Fed. Reg. at 3102-03 (admitting that the agencies have not 
asserted jurisdiction over isolated waters since the SWANCC decision in 
2001).
---------------------------------------------------------------------------
    The Technical Support Document notes that most connections with 
navigable waters are through biological or groundwater connections.'' 
\73\ Dispersal of biota and groundwater are likely to become the 
primary ways EPA and the Corps claim control over private property, 
even though nothing in the CWA or its legislative history supports this 
outcome.
---------------------------------------------------------------------------
    \73\ In the studies they reviewed, the agencies found that 
biological connections are the most common type of connection for all 
stream types (including ephemeral channels) (Technical Support 
Document, at 51) and floodplain wetlands and open waters (Technical 
Support Document, at 52). For isolated waters, the Technical Support 
Document, found groundwater was the most common basis for finding a 
connection (Technical Support Document, at 65).
---------------------------------------------------------------------------
C. Expansion of the Concept of ``Tributary''
    The 2023 WOTUS Rule does not define the term ``tributary.'' 
Tributaries of navigable or interstate waters or territorial seas or 
impoundments are regulated.\74\ The preamble states that a tributary is 
a water body that flows directly or indirectly to one of those 
waters.\75\ On its face, this definition appears to be uncontroversial. 
However, the preamble makes it clear that a feature on the land can be 
considered a tributary as long as EPA or the Corps decide they can see 
an ordinary high-water mark.\76\ For example, in 2014 comments on the 
proposal that became the 2015 WOTUS Rule the State of Tennessee noted 
that the Corps claimed jurisdiction over a Tennessee farmer's field by 
claiming erosion from an ephemeral flow was a regulated tributary.\77\
---------------------------------------------------------------------------
    \74\ 33 CFR 328.3(a)(3).
    \75\ 88 Fed. Reg. at 3083.
    \76\ 88 Fed. Reg. at 3116.
    \77\ See the photo in the Appendix, Exhibit 2, from the Comments of 
the State of Tennessee, Department of Environment and Conservation on 
the 2014 proposed WOTUS Rule, document no. EPA-HQ-OW-2011-0880-17074, 
at 19, available at https://www.regulations.gov/comment/EPA-HQ-OW-2011-
0880-17074
---------------------------------------------------------------------------
    In fact, the 2023 WOTUS Rule goes even further and states that a 
surface flowpath is not needed.\78\ Water also can be considered a 
tributary even if it no longer is an identifiable hydrographic feature, 
such as a stream that disappears underground, including through 
groundwater aquifers in karst geology found below about 20 percent of 
the United States.\79\
---------------------------------------------------------------------------
    \78\ 88 Fed. Reg. at 3084.
    \79\ Id. at 3083.
---------------------------------------------------------------------------
    The preamble also gives EPA and the Corps the discretion to decide 
that a buried stream is a tributary.\80\ This language could convert a 
city sewer into a regulated water of the United States.\81\
---------------------------------------------------------------------------
    \80\ 88 Fed. Reg. at 3083.
    \81\ See Hidden Washington: Tiber Creek (describing how Tiber Creek 
formerly found in Northwest Washington was converted in the 19th 
century to an underground sewer that discharges to the Anacostia 
River), available at https://parkviewdc.com/2011/09/08/hidden-
washington-tiber-creek/ See also, Senator James M. Inhofe, ``Your 
Sewers and Streets Could be Waters of the United States,'' Municipal 
Water Leader, Vol. 1, Issue 3, October 2015, at 24, available at 
https://municipalwaterleader.com/vol-1-iss-3/
---------------------------------------------------------------------------
    Under the rule, the agencies can use aerial photographs, light 
detection and ranging (LIDAR) date, and even soil surveys to identify a 
tributary and determine that it is ``relatively permanent.'' \82\ This 
can put landowners in an untenable situation.
---------------------------------------------------------------------------
    \82\ 88 Fed. Reg. at 3087 (tributaries generally), 3114 (discussing 
how to determine a ditch is not excluded).
---------------------------------------------------------------------------
    For example, in 2014, a farmer in Indiana cleared trees from his 
property to expand his farming operation. The Corps claimed that this 
activity destroyed a regulated tributary of a ``water of the United 
States.'' The Corps claimed jurisdiction based on a soil survey 
(although the Corps did not claim wetlands were present), Google Earth 
aerial photographs taken before the trees were cleared, and speculation 
that a drainage existed beneath the tree canopy. The landowner 
submitted an affidavit from the person who performed the clearing, 
affirming that no stream existed on the parcel cleared in 2014 and any 
marks on the ground were log skidder tracks from logging that took 
place in the early 2000s. Although the nearest traditional navigable 
water was 117 miles away and the nearest relatively permanent water 
feature (Mud Ditch) was a mile and a half away, the Corps ordered the 
farmer to cease and desist his tree clearing.\83\ Under the 2023 WOTUS 
Rule, the same kind of information can be used to claim that a farm has 
a ``relatively permanent'' tributary.
---------------------------------------------------------------------------
    \83\ Testimony submitted by Martin Farms, Hearing on ``Erosion of 
Exemptions and Expansion of Federal Control--Implementation of the 
Definition of Waters of the United States,'' May 24, 2016, before the 
Senate Committee on Environment and Public Works Subcommittee on 
Fisheries, Water, and Wildlife, available at https://
www.epw.senate.gov/public/index.cfm/hearings?ID=3F9479F7-CA54-44B6-
A202-631D86380A66 See Appendix A, Exhibit 4 for photo.
---------------------------------------------------------------------------
D. Expansion of the Concept of ``Adjacency.''
    Under the 2023 WOTUS rule, adjacency is determined on a case-by-
case basis, with no outer boundary. The preamble points out that even 
if a wetland is more than a few hundred feet from a navigable or 
interstate water or a territorial sea or an impoundment, or a tributary 
of any of these waters, EPA and the Corps can still claim a wetland is 
adjacent based on a surface or shallow subsurface connections, pipes, 
ditches, or--like tributaries--karst geology.\84\
---------------------------------------------------------------------------
    \84\ 88 Fed. Reg. at 3089.
---------------------------------------------------------------------------
    The Corps has claimed a wetland was adjacent due to the presence of 
damp soil 12 inches below the surface.\85\
---------------------------------------------------------------------------
    \85\ See Testimony submitted by Valerie Wilkinson, Hearing on 
``Erosion of Exemptions and Expansion of Federal Control--
Implementation of the Definition of Waters of the United States,'' May 
20, 2016, available at https://www.epw.senate.gov/public/index.cfm/
hearings?ID=3F9479F7-CA54-44B6-A202-631D86380A66
---------------------------------------------------------------------------
    The Corps has claimed wetlands are adjacent based on ruts formed by 
a log skidder.\86\
---------------------------------------------------------------------------
    \86\ Testimony of Gary W. Perkins, Hearing on ``Inconsistent 
Regulation of Wetlands and Other Waters,'' Before the Committee on 
Transportation and Infrastructure, Water Resources and Environment 
Subcommittee, Mar. 30, 2004, 108th Congress (GPO Serial No. 108-58).
---------------------------------------------------------------------------
    The Corps has claimed that a puddle is an adjacent wetland based on 
tire ruts. In 2007, the Corps required a landowner to obtain a permit 
for tire ruts along a dirt road even though the ruts, which collected 
rainwater, lacked both hydric soils and wetlands vegetation, and 
therefore did not meet the definition of a wetland. To justify 
regulating a tire rut, the Corps surmised that use of the road 
prevented the growth of vegetation. In 2014, when the landowner was 
seeking approval of phase II of its project, the Corps again asserted 
jurisdiction over the road. Depressions made by cars collected standing 
water following a heavy rain. The Corps again called these 
wetlands.\87\
---------------------------------------------------------------------------
    \87\ Response to Questions for the Record submitted by Don Parrish, 
Case Study 1, Hearing on ``Erosion of Exemptions and Expansion of 
Federal Control--Implementation of the Definition of Waters of the 
United States,'' May 20, 2016, available at https://www.epw.senate.gov/
public/index.cfm/hearings?ID=3F9479F7-CA54-44B6-A202-631D86380A66 See 
Appendix A, Exhibit 6.
---------------------------------------------------------------------------
    The agencies plan to use aerial photos to identify wetlands that it 
may consider adjacent.\88\ That can lead to abuses as well. In 2015, 
the Corps claimed that lichen covered rock outcroppings were wetlands 
based on a review of an aerial photograph.\89\
---------------------------------------------------------------------------
    \88\ 88 Fed. Reg. at 3094.
    \89\ Response to Questions for the Record submitted by Don Parrish, 
Case Study 9, Hearing on ``Erosion of Exemptions and Expansion of 
Federal Control--Implementation of the Definition of Waters of the 
United States,'' May 20, 2016, available at https://www.epw.senate.gov/
public/index.cfm/hearings?ID=3F9479F7-CA54-44B6-A202-631D86380A66
---------------------------------------------------------------------------
    Finally, EPA and the Corps will consider a wetland to be adjacent 
even if there is no surface or subsurface connection to a 
jurisdictional water based by inferring that the wetland is close 
enough to have an impact on an aquatic ecosystem.\90\
---------------------------------------------------------------------------
    \90\ 88 Fed. Reg. at 3089.
---------------------------------------------------------------------------
E. Erosion of Exemptions.
    In the preamble of the 2023 WOTUS Rule, the agencies repeatedly say 
that farmers are exempt from CWA permitting under section 404(f)(1) of 
the statute. This claim is disingenuous. Section 404(f)(2) allows the 
agencies to require permits for discharges into navigable waters for a 
new use that reduces the waters' flow or circulation or reach. The 
agencies have interpreted that ``recapture'' provision so broadly that 
one court called it an administrative repeal.'' \91\
---------------------------------------------------------------------------
    \91\ See Memorandum and Order, United States v. County of Steams, 
Civ. 3-89-616 (D. Minn. March 15, 1990), at 18.
---------------------------------------------------------------------------
    In 2013, the Corps issued a ``cease and desist'' order to 
Subcommittee member Congressman John Duarte claiming that he needed a 
CWA 404 permit to plow a field on his farm. The Corps claimed that the 
field contained wetlands and plowing caused the mounded soil next to 
the furrows to dry out, calling those mounds ``mini mountain ranges,'' 
``uplands,'' and ``dry land.'' \92\ According to the Corps, 
notwithstanding section 404(f) of the CWA, plowing is not exempt 
because it converts wetlands to uplands.
---------------------------------------------------------------------------
    \92\ See ``From Preventing Pollution of Navigable and Interstate 
Waters to Regulating Farm Fields, Puddles and Dry Land: A Senate Report 
on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers 
and the U.S. Environmental Protection Agency under the Clean Water 
Act,'' Sept. 20, 2016, available at https://www.epw.senate.gov/public/_
cache/files/9/9/99dc0f4b-50a8-4b9e-a604-cb720e7f19bc/
1C09C14A8FD18AB786684EB1E
6538262.wotus-committee-report-final1.pdf and the photograph in 
Appendix Exhibit 4.
---------------------------------------------------------------------------
    In 2015, the Corps claimed that changing use of a field from 
alfalfa to orchards was a change and therefore was not an exempt normal 
farming activity.\93\
---------------------------------------------------------------------------
    \93\ Response to Questions for the Record submitted by Don Parrish, 
Case Study 7, Hearing on ``Erosion of Exemptions and Expansion of 
Federal Control--Implementation of the Definition of Waters of the 
United States,'' May 20, 2016, available at https://www.epw.senate.gov/
public/index.cfm/hearings?ID=3F9479F7-CA54-44B6-A202-631D86380A66
---------------------------------------------------------------------------
    The 2023 WOTUS Rule also greatly reduces the scope of the long-
standing exemption for prior converted cropland. This exemption was 
included in the regulatory definition of WOTUS in 1993. The preamble of 
that rule stated that an area would lose its status as prior converted 
cropland if the cropland is ``abandoned,'' meaning that crop production 
ceases and the area reverts to a wetland state. Specifically, the 
preamble to the 1993 regulations stated that prior converted cropland 
that now meets wetland criteria will be considered abandoned unless 
``once in every five years it has been used for the production of an 
agricultural commodity, or the area has been used and will continue to 
be used for the production of an agricultural commodity in a commonly 
used rotation with aquaculture, grasses, legumes, or pasture 
production.'' \94\ In 2005, the Corps attempted to change that 
interpretation for its field staff in a memorandum, replacing the 
``abandonment'' test with a change of use test. The District Court for 
the Southern District of Florida set aside that memorandum as a 
spurious rulemaking that violated the Administrative Procedure Act.\95\ 
Notwithstanding the Corps' attempt to change the definition of prior 
converted cropland, EPA continued to use the abandonment test until 
now.\96\ Thus, the 2023 WOTUS Rule is a change from ``pre-2015 
practice,'' despite claims to the contrary, which will result in costs 
to farmers. The agencies recognize this in their Economic Analysis 
although they claim they cannot quantify the costs.\97\ In comments on 
the proposal that led to the 2023 WOTUS Rule, the agriculture community 
estimated that the cost could be billions.\98\
---------------------------------------------------------------------------
    \94\ 88 Fed. Reg. at 3106-07.
    \95\ New Hope Power Co. v. U.S. Army Corps of Eng'rs, 746 F. Supp. 
2d 1272 (S.D. Fla. 2010). The Corps followed the directive of the court 
only in the area subject to the court's jurisdiction. 88 Fed. Reg. at 
3107.
    \96\ Economic Analysis, at 49-50.
    \97\ Id.
    \98\ 88 Fed. Reg. at 3109.
---------------------------------------------------------------------------
    The 2023 WOTUS Rule also raises the specter of CWA regulation of 
rice fields. The 2015 WOTUS rule expressly excluded flooded rice fields 
in the regulatory text and they would not have been jurisdictional 
under the 2020 rule. However, the 2023 WOTUS Rule exempts flooded rice 
fields only if they are used exclusively for purposes such as rice 
growing.\99\ This ``exclusive use'' limitation ignores the fact that 
many rice farmers lease their fields to duck hunters and obtain another 
source of revenue. The preamble to the 2023 WOTUS Rule says the 
agencies will not claim jurisdiction over a rice field if it is being 
used by waterfowl or other wildlife but says nothing about use by duck 
hunters.\100\
---------------------------------------------------------------------------
    \99\ 33 CFR 328.3(b)(5).
    \100\ 88 Fed. Reg. at 3116.
---------------------------------------------------------------------------
    Finally, the 2023 WOTUS Rule fails to exclude stormwater control 
features, wastewater recycling basins, and groundwater recharge basins 
even though those features were excluded from the 2015 rule and would 
not have been swept in by the 2020 rule.
    The 2023 WOTUS Rule gives EPA and the Corps extensive tools to 
claim control over land, creating uncertainty for and imposing burdens 
on landowners, farmers, and municipalities across the United States.
                               appendix a

                    EXHIBIT 1: Back-to-back storms.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Windsor, California, Jan. 9, 2023.

EXHIBIT 2: Tennessee farmer's field identified as WOTUS by the Corps in
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

      EXHIBIT 3: Karst Map of the Conterminous United States_2020
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

 United States Geological Survey at https://www.usgs.gov/mission-areas/
                 water-resources/science/karst-aquifers

          EXHIBIT 4: Photograph of Congressman Duarte's field.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

   Photograph from U.S. Department of Justice, Expert Team Rebuttal 
Report, Duarte Nursery, Inc. et al. U.S. Army Corps of Engineers/United 
States v. Duarte Nursery, Inc. et al., No. 2:13-cv-02095, Document 244-
                        4, filed Aug. 15, 2016.

                        EXHIBIT 5: Martin's Farm
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            Before clearing

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            After clearing.

    EXHIBIT 6: Tire ruts that the Corps claimed were jurisdictional 
                               wetlands.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


    Mr. Rouzer. I thank the gentlewoman.
    Mr. Owen, you are now recognized.
    Mr. Owen. Thank you, Chairman Rouzer, Ranking Member 
Napolitano, I appreciate the opportunity to speak today.
    Mr. Rouzer. I don't think your mic is on.
    Mr. Owen. Oh, the mic is not on.
    Mr. Rouzer. And if you can pull that microphone closer to 
you.
    Mr. Owen. Yes, I will do that.
    Mr. Rouzer. There you go.

 TESTIMONY OF DAVE OWEN, HARRY D. SUNDERLAND PROFESSOR OF LAW 
 AND FACULTY DIRECTOR OF SCHOLARLY PUBLICATIONS, UNIVERSITY OF 
            CALIFORNIA COLLEGE OF LAW, SAN FRANCISCO

    Mr. Owen. Thank you, Chairman Rouzer, Ranking Member 
Napolitano, and Ranking Member Larsen, for the opportunity to 
speak with you today.
    In my testimony, I am going to explain how the 2022 waters 
of the United States rule is better for water quality, better 
for the economy, better for States, and a better interpretation 
of statutory text.
    Protecting water quality is the point of the Clean Water 
Act. Through years of research, scientists have concluded that 
we cannot have water quality in our rivers, lakes, and seas if 
we do not protect the smaller streams and wetlands that feed 
those rivers, lakes, and seas. Those small streams and wetlands 
are as important to larger waterways as our capillaries are to 
our pulmonary system or as a tree's leaves and roots are to its 
trunk.
    Despite that importance, the 2020 rule would have 
eliminated Clean Water Act protection from most of the Nation's 
small wetlands and streams. The 2020 rule never tried to 
explain how this change would be better for water quality nor 
could it.
    The 2022 rule restores those protections, and it does so by 
establishing familiar standards that date back to 1975 and have 
been elaborated in detail since 1986. This will improve water 
quality across the Nation.
    Next, economics.
    Because the new rule makes environmental sense, it also 
makes economic sense. Water quality is valuable. Hunting, 
fishing, and often tourism require clean water. Clean water is 
an important input for many manufacturing processes. Everyone 
needs clean water to drink. But drinking water treatment is 
expensive, and it is more expensive if the source water is 
dirtier.
    An honest appraisal of the economic benefits of cleaner 
water should have been part of the 2020 rule. It was not. 
Instead, the previous rule's economic analysis pretended that 
some well-known benefits did not exist, claimed inaccurately 
that others could not be measured, and premised its analysis on 
some demonstrably fallacious assumptions, like, for example, an 
assumption that States would simply backfill whatever 
protections the Federal Government withdrew.
    The whole rule was based on sleight-of-hand accounting, 
with that accounting designed to hide millions of dollars in 
costs to the American public.
    The new rule fixes these problems. Through a good faith 
accounting, it explains that restored benefits will produce 
hundreds of millions of dollars in benefits. Adopting this rule 
was the economically responsible thing to do.
    The new rule also supports States. This might be a sort of 
surprising claim because the Clean Water Act's detractors 
typically claim to be on the side of State power, but that 
claim misunderstands how Clean Water Act federalism actually 
works.
    The Clean Water Act was designed to address major problems 
that States could not address on their own. States have no 
authority over pollution sources beyond their borders. And 
polluting industries will play States against each other, 
creating a race to the bottom and seeking the weakest possible 
form of regulation.
    Sorry, I am missing a couple pages here.
    In fact, however, the Clean Water Act was designed to 
respond to these State challenges by empowering States in 
multiple ways.
    So, the first key way in which it empowers States is again 
by allowing them to participate in every program that is part 
of the statute. In addition, it allows States to comment on 
permits from upstream sources. And it finally allows, through 
section 401, States to assert power over the Federal 
Government.
    In other words, section 401 gives States the ability to 
condition permits issued by the Federal Government in ways that 
are protective of State water quality. That is a huge benefit 
that would be taken away if the scope of Clean Water Act 
jurisdiction shrinks.
    Finally, the rule does a better job with statutory text. 
The key text that we are interpreting here is the waters of the 
United States. Under any plausible reading of that text, it 
would include aquatic features that have water and that are 
permanently present. That includes streams, that includes 
wetlands, that includes ponds, even if they don't have a 
permanent connection to some larger water body.
    The new rule respects that text, and in contrast the 
previous rule mangles statutory text by creating some strange 
distinctions between waters that are covered and waters that 
are not.
    So, in summary, the new rule is a better interpretation of 
statutory text, it is better for the economy, it is better for 
States, and, most importantly, it is better for water quality.
    I look forward to your questions. Thank you.
    [Mr. Owen's prepared statement follows:]

                                 
 Prepared Statement of Dave Owen, Harry D. Sunderland Professor of Law 
     and Faculty Director of Scholarly Publications, University of 
                California College of Law, San Francisco
                            I. Introduction
    Last year was the 50th anniversary of the passage of the Federal 
Water Pollution Control Act, which we now refer to as the Clean Water 
Act. That anniversary was an occasion to celebrate the act's 
extraordinary achievements--achievements we also ought to be 
celebrating here today.
    Around the nation, rivers that once were open sewers now are 
treasured community resources, even as this nation has experienced 
sustained economic growth.\1\ It is not hard to understand why popular 
support for water quality protections remains so strong.\2\
---------------------------------------------------------------------------
    \1\ 50 Years after the Clean Water Act--Gauging Progress, U.S. 
Govt. Accountability Office, October 17, 2022, https://www.gao.gov/
blog/50-years-after-clean-water-act-gauging-progress.
    \2\ Americans Strongly Support Environmental Protections in the 
Clean Water Act, Walton Family Foundation, September 20, 2022, https://
www.waltonfamilyfoundation.org/learning/access-and-availability-to-
clean-water-is-a-concern-nationwide (``The poll found strong support 
among Americans for the Clean Water Act, with 75% in favor of 
protecting more waters and wetlands. It also showed Americans strongly 
prefer the federal government, through the Environmental Protection 
Agency, to maintain water standards in the country.'').
---------------------------------------------------------------------------
    But protecting these achievements, and fulfilling the Clean Water 
Act's promise, will require continued support from this Congress, as 
well as continued implementation efforts by the United States Army 
Corps of Engineers (Army Corps) and the U.S. Environmental Protection 
Agency (EPA).
    Protecting water quality remains a work in progress. Thousands of 
waterways remain impaired, imposing huge costs on the nation. We are 
much better off than we were in 1972, but we are still far from making 
our waters fishable and swimmable.\3\
---------------------------------------------------------------------------
    \3\ 50 Years after the Clean Water Act--Gauging Progress, U.S. 
Govt. Accountability Office, October 17, 2022, https://www.gao.gov/
blog/50-years-after-clean-water-act-gauging-progress.
---------------------------------------------------------------------------
    For reasons I will explain in more detail, the 2022 Army Corps and 
EPA rule interpreting the statutory phrase ``the waters of the United 
States'' is crucial to protecting the progress we have made and to 
turning the additional promise of the Clean Water Act into reality.
    The rule is necessary to protect water quality. It is consistent 
with the Clean Water Act's text and with decades of nearly 
uninterrupted agency interpretations and practice. It makes economic 
sense. And it is also necessary because the regulation it replaces--a 
rule promulgated in 2020 under the previous administration--was at odds 
with statutory text, water quality protection, rational economics, and 
its own stated justifications.
    I am the Harry D. Sunderland Professor at the University of 
California College of Law, San Francisco, where I teach classes in 
environmental law, water law, and statutory interpretation and 
administrative law. I have worked in the environmental field for my 
entire career, first as a consultant helping regulated businesses 
comply with environmental laws and then as a water lawyer and law 
professor.\4\ Most of my research focuses on water resource management, 
and several of my research papers focus specifically on implementation 
of the Clean Water Act by the Army Corps and EPA.\5\ I also have spent 
much of my research career trying to understand, often through 
conversations with regulators and regulated-entity attorneys, how 
regulators and regulated communities work together to promote 
environmental protection and economic development.\6\
---------------------------------------------------------------------------
    \4\ These comments draw on that previous work, and they also draw 
in places on text I have written for amicus briefs submitted on behalf 
of members of Congress.
    \5\ See Little Streams and Legal Transformations, 2017 Utah L. Rev. 
1; Regional Federal Administration, 63 UCLA L. Rev. 58 (2016).
    \6\ See, e.g. The Negotiable Implementation of Environmental Law, 
75 Stan. L. Rev. 137 (2023); Consultants, the Environment, and the Law, 
61 Ariz. L. Rev. 823 (2019); Critical Habitat and the Challenge of 
Regulating Small Harms, 64 Florida L. Rev. 141 (2012); Urbanization, 
Water Quality, and the Regulated Landscape, 82 U. Colo. L. Rev. 431 
(2011); see also Todd Aagaard, Dave Owen & Justin Pidot, Practicing 
Environmental Law (2nd ed. 2021).
---------------------------------------------------------------------------
                           II. Statutory Text
    Our governance system requires that agencies take actions 
consistent with their statutory mandates. The 2022 EPA/Army Corps rule 
respects that responsibility. The preceding regulation did not.
    Each rule tries to explain the meaning of the statutory phrase 
``the waters of the United States.'' \7\ The two rules differ primarily 
in their application of that phrase to aquatic features, like streams, 
wetlands, and ponds, that lack continuous surface-water connections to 
larger waterways. The 2020 rule would have excluded most of those 
aquatic features. The 2022 rule would include those features, so long 
as protecting them has ``sufficient nexus''--in other words, a genuine 
connection--to maintaining water quality in what we refer to as 
``navigable-in-fact'' waterways.\8\
---------------------------------------------------------------------------
    \7\ 33 U.S.C. Sec.  1362(7).
    \8\ The test comes from Justice Kennedy's opinion in Rapanos v. 
United States, 547 U.S. 715 (2006). Because the four dissenting 
justices also would also have supported finding jurisdiction for any 
water with a significant nexus to water quality in navigable-in-fact 
waters, Justice Kennedy's opinion has held controlling weight for 
waters to which it applies.
---------------------------------------------------------------------------
    Statutory interpretation is supposed to start with the ordinary 
meaning of the text,\9\ and as a matter of textual reading, the former 
rule's demand for continuous surface connections to navigable-in-fact 
waterways does not make sense. In normal, everyday speech, a pond, 
swamp, or stream counts as ``waters'' regardless of the average flow 
level in its outlet or the fact that it might come and go with the 
seasons.\10\ If someone tells you, ``There are no waters on this 
land,'' you would not expect to encounter a pond, stream, or wetland. 
And if you did encounter such a feature, you certainly would not say, 
``Well, it's not actually a body of water because the outlet might dry 
up in July.'' Normal speech does not even hint at the tortured 
linguistic distinctions of the 2020 rule. In contrast, everyday 
language is consistent with a definition that includes the nation's 
intermittent streams and disconnected wetlands as part of ``the waters 
of the United States.'' They are waters, and they are of the United 
States.
---------------------------------------------------------------------------
    \9\ See FCC v. AT&T Inc., 562 U.S. 397, 403 (2011) (``When a 
statute does not define a term, we typically give the phrase its 
ordinary meaning.'') (internal quotation marks omitted).
    \10\ See, e.g., Porter v. Armstrong, 39 S.E. 799, 799 (N.C. 1901) 
(referring to ``the waters'' of a swamp); Com. v. Reed, 34 Pa. 275 
(1859) (same). Outside of legal speech, the same conventions exist. The 
Bible, for example, repeatedly refers to ``the waters'' of springs 
without mentioning whether those springs had continuous surface 
connections to navigable-in-fact waters. E.g. Judges 5:19 (referring to 
``the waters of Meggido'').
---------------------------------------------------------------------------
    The 2022 rule's interpretation also is historically grounded. In 
1975, the Army Corps issued regulations interpreting Clean Water Act 
jurisdiction as extending to ``the entire length of rivers and 
streams,'' bringing its interpretation in line with a position EPA had 
asserted several years earlier.\11\ In 1977, the Army Corps finalized 
those rules.\12\ For the next four decades, both agencies consistently 
maintained that interpretation of their jurisdiction. Only under the 
Trump administration did they purport to discover a narrower mandate in 
the statute. Meanwhile, Congress twice enacted significant amendments 
to the Clean Water Act, both times choosing to leave these 
jurisdictional interpretations intact--as it also did in the many years 
it chose to leave the Clean Water Act alone.\13\
---------------------------------------------------------------------------
    \11\ Permits for Activities in Navigable Waters or Ocean Waters, 40 
Fed. Reg. 31320 (July 15, 1975).
    \12\ Regulatory Programs of the Army Corps of Engineers, 42 Fed. 
Reg. 37,122, 31,129 (July 19, 1977).
    \13\ Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 
(1977); see Sam Kalen, Commerce to Conservation: The Call for a 
National Water Policy and the Evolution of Federal Jurisdiction over 
Wetlands, 69 N.D. L. Rev. 873, 881-86 (1993).
---------------------------------------------------------------------------
    The 2022 regulations therefore are not doing something novel or 
unfamiliar. They are simply clarifying long-established standards and 
correcting a historical anomaly.
               III. Water Quality and a Scientific Basis
    Congress chose the Clean Water Act's name for a reason. The central 
purpose of the Clean Water Act, as repeatedly stated by Congress, is to 
protect water quality, and Congress clearly expected that protection to 
be grounded in scientific knowledge. The statute opens by declaring, 
``[t]he objective of this chapter is to restore and maintain the 
chemical, physical, and biological integrity of the Nation's Waters.'' 
\14\ The statute's opening section also states that water quality 
regulation must provide for ``the protection and propagation of fish, 
shellfish, and wildlife'' and ``provide[] for recreation,'' all of 
which requires understanding, through science, the conditions upon 
which fish, shellfish, wildlife, and recreation depend, and the 
relationships between those conditions and water pollution.\15\ Any 
lawful regulation interpreting the term ``waters of the United States'' 
must respect this text and must be crafted to advance this central 
statutory purpose.\16\
---------------------------------------------------------------------------
    \14\ 33 U.S.C. Sec.  1251(a).
    \15\ 33 U.S.C. Sec.  1251(a)(2).
    \16\ See 5 U.S.C. Sec.  706(2)(A); Motor Vehicle Mfrs. Assn. of 
United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 
29, 43, 49 (1983) (finding that an agency's rule was arbitrary and 
capricious when it failed to consider options consistent with the 
intent of the underlying statutory scheme)
---------------------------------------------------------------------------
    The 2020 rule made no pretense of honoring that purpose. The 
agencies did not even try to explain how their new rule would improve 
water quality. They also made almost no effort to grapple with the 
extensive scientific studies they had previously compiled, or with the 
huge body of scientific literature upon which those studies drew. 
Indeed, they did not even try to gather information on the numbers of 
streams and wetlands that would lose protection. When asked for that 
information by members of Congress, a political appointee candidly 
admitted that the agencies did not know.\17\
---------------------------------------------------------------------------
    \17\ Hearing before the Subcommittee on Water Resources and the 
Environment of the Committee on Transportation and Infrastructure, 
September 18, 2019, pp 16-17 (Sept. 18, 2019), available at https://
www.govinfo.gov/content/pkg/CHRG-116hhrg40826/pdf/CHRG-
116hhrg40826.pdf.
---------------------------------------------------------------------------
    If the 2020 rule had taken water-quality science seriously, it 
would have acknowledged how important protecting wetlands and small 
streams is to protecting water quality everywhere. The agencies' 
earlier studies and the supporting scientific literature explain in 
great detail how protecting even the smallest tributaries--including 
intermittent and ephemeral tributaries and wetlands that lack direct 
surface connections to nearby waters--is essential to protecting water 
quality in larger waterways.\18\ Small tributaries and wetlands absorb 
nutrients, limiting toxic and costly algae blooms in downstream 
waterways.\19\ They capture and store floodwaters, sustaining 
navigability and protecting people who live or work downstream.\20\ 
They nurture fish and wildlife, sustaining the food webs that make 
rivers fishable--and that support popular human activities like hunting 
and birdwatching.\21\
---------------------------------------------------------------------------
    \18\ See Dave Owen, Little Streams and Legal Transformations, 2017 
Utah L. Rev. 1, 6-11 (summarizing this literature).
    \19\ See Richard B. Alexander et al., Dynamic Modeling of Nitrogen 
Losses in River Networks Unravels the Coupled Effects of Hydrologic and 
Biogeochemical Processes, 93 Biogeochemistry 91, 110 (2009)
    \20\ See Comm. On Reducing Stormwater Discharge Contributions to 
Water Pollution, Nat'l Research Council, Urban Stormwater Management in 
the United States 166-70 (2009) (describing flooding impacts).
    \21\ See Judy L. Meyer et al., The Contribution of Headwater 
Streams to Biodiversity in River Networks, 43 J. Am. Water Resources 
Ass'n 86 (2007).
---------------------------------------------------------------------------
    In short, the scientific literature demonstrates that small 
wetlands and streams are as essential to a river system as leaves are 
to a tree.\22\ The 2020 rule simply ignored that importance.
---------------------------------------------------------------------------
    \22\ U.S. EPA, Connectivity of Streams and Wetlands to Downstream 
Waters: A Review and Synthesis of the Scientific Evidence 2-14 (2015).
---------------------------------------------------------------------------
    The 2022 rule, with its emphasis on water quality connections, 
appropriately respects the importance of science. This time around, the 
agencies have quantified the areas that would retain protection. 
Likewise, they have explained, at length, how scientific research 
informs their choices about the geographic scope of Clean Water Act 
protection. They have respected, rather than ignored, their mandate 
from Congress.
              IV. The 2022 Regulations Make Economic Sense
    Because it makes environmental sense, the 2022 rule also makes 
economic sense. The 2020 rule did not, and indeed, the previous 
administration went to great lengths to hide just how much its rule 
would cost America.\23\ That should be of great concern to this 
Congress, which is appropriately focused on the nation's economy. It 
also is a major legal reason why the 2020 rule needed to be replaced. 
Regulations must be informed by careful economic analyses, not by 
sleight of hand.
---------------------------------------------------------------------------
    \23\ See David A. Keiser et al, Report on the Repeal of the Clean 
Water Rule and its Replacement with the Navigable Waters Protection 
Rule to Define Waters of the United States (WOTUS) 4-6 (2020), https://
cb4388c0-f641-4b7b-a3ad-281c0e6f8e88.filesusr.com/
ugd/669644_5aa4f5f0493a4902a3aaed117bd92aef.pdf.
---------------------------------------------------------------------------
    The 2022 rule recognizes the obvious: water quality is economically 
valuable. Improved water quality raises home values.\24\ Many economic 
activities directly depend on clean water and on protection of the 
physical integrity of streams and wetlands. Hunting, fishing, and 
boating are all large industries--as well as activities that bring many 
Americans the difficult-to-quantify happiness that comes from 
recreating outside.
---------------------------------------------------------------------------
    \24\ See, e.g., See Lynne Y. Lewis et al., Dams, Dam Removal and 
River Restoration: A Hedonic Property Value Analysis, 26 Contemp. Econ. 
Pol'y 175, 185 (2008)
---------------------------------------------------------------------------
    Many other businesses depend on quality water as an industrial 
input. A notorious recent example captures this importance: in 2012, 
when the City of Flint switched to a dirtier water supply, a General 
Motors plant dealt with months of operational problems and finally had 
to find a new water source.\25\ Additionally, every business in the 
nation has employees who need to drink.
---------------------------------------------------------------------------
    \25\ See Mike Colias, How GM Saved Itself from Flint Water Crisis, 
Automotive News, January 31, 2016.
---------------------------------------------------------------------------
    Dirty water also poses huge financial burdens on public water 
suppliers and the customers they serve.\26\ Water treatment is 
expensive, and it becomes more expensive if the water source has more 
contaminants.\27\ Preventing pollution is usually much cheaper than 
cleaning it up, but if the Clean Water Act does not apply, and 
pollution prevention does not occur, the public can get stuck with big 
bills.
---------------------------------------------------------------------------
    \26\ See Margo Pollans, Drinking Water Protection and Agricultural 
Exceptionalism, 77 Ohio St. L.J. 1195 (2016).
    \27\ See David Sedlak, Water 4.0 (2014).
---------------------------------------------------------------------------
    As other researchers have explained in detail, the 2020 rule 
pretended that many of these benefits didn't exist. A study by the 
Institute for Policy Integrity (at NYU Law School) provides a succinct 
summary of the previous rule's analytical failings:

          [T]hese analyses suffer from severe methodological flaws. And 
        correcting the analyses would very likely show that the 
        rollbacks are net costly to society, depriving the public of 
        potentially billions of dollars in annual forgone benefits. The 
        agencies' flaws fall into several broad categories.
          First, the agencies leave out most of the harmful impacts 
        from their cost-benefit analyses--including impacts on safe 
        drinking water, flooding, and habitats for aquatic and 
        endangered species--claiming false helplessness in the face of 
        data gaps. Second, though the agencies monetize the impact of 
        the rollbacks on wetlands that will be lost, their analysis 
        arbitrarily excludes most of the relevant forgone benefits. For 
        example, they arbitrarily limit their calculations to the 
        benefits of protecting wetlands inside a state only, ignoring 
        the well-recognized benefits that people derive from waters 
        outside of their state. Moreover, the agencies erroneously 
        limit the benefits that in-state residents derive from wetlands 
        protection, through an arbitrary assumption that allows them to 
        undervalue the per-acre benefits and through ignoring the 
        unique local benefits that wetlands provide. The agencies also 
        make the unsupported assumption that states will choose to fill 
        the regulatory gap left after the rollbacks--despite the lack 
        of any federal mandate to do so and the fact that many states 
        have recently demonstrated antipathy to additional clean-water 
        regulation. And third, the agencies overvalue the cost savings 
        of the rules.\28\
---------------------------------------------------------------------------
    \28\ Bethany Davis Noll et al., Beneath the Surface: The Concealed 
Costs of the Clean Water Rule Rollback (2020).

    Even with all this sleight of hand, the agencies still could not 
say that their calculations showed a net benefit to society. Instead, 
they simply speculated that such a benefit might occur.
    On the other side of the ledger, the costs of protecting wetlands 
and streams tend to be greatly overstated. The subset of businesses 
that objects to Clean Water Act regulations typically argues that the 
law shuts down productive activities and that perceived ambiguities in 
the scope of Clean Water Act coverage create crippling uncertainty.
    But the former claim ignores the flexibility available to property 
owners through permitting processes. In many places, the presence of 
protected streams or wetlands does not prevent construction; instead, 
the property can be developed in a different way that avoids the 
wetlands or streams. That avoidance will benefit the people who 
ultimately use the site; their houses or businesses will not be 
constructed in places that routinely flood.\29\
---------------------------------------------------------------------------
    \29\ Construction techniques can protect houses and buildings from 
floodwaters, but usually just by pushing the water somewhere else. It 
still will come down from the sky and go somewhere. That means filling 
in streams and wetlands--which, even if they are ephemeral, are places 
that predictably flood--almost inevitably means putting people's 
property, and perhaps their lives, at risk.
---------------------------------------------------------------------------
    And if avoidance is not possible, property owners may use 
compensatory mitigation--which means compensating for on-site impacts 
by protecting or restoring similar streams or wetlands in a different 
place--to proceed with their project.\30\ The result can be economic 
development and enhanced environmental protection, with each occurring 
in places where they make the most sense. A secondary result is the 
growth and sustenance of industries devoted to finding ways to 
accommodate both development and environmental protection.\31\
---------------------------------------------------------------------------
    \30\ See Palmer Hough & Morgan Robertson, Mitigation Under Section 
404 of the Clean Water Act: Where It Comes from, What It Means, 17 
Wetlands Ecology & Mgmt. 15 (2009)
    \31\ See National Environmental Banking Association, https://
environmentalbanking.org/.
---------------------------------------------------------------------------
    The latter claim ignores the many ways property owners can find out 
about the scope of Clean Water Act coverage. The Army Corps publishes a 
detailed manual explaining how to identify waters subject to regulatory 
coverage.\32\ An extensive environmental consulting industry can help 
landowners identify protected aquatic features.\33\ In fact, 
consultants had done just that in some of the most prominent Clean 
Water Act controversies. John Rapanos, for example, was warned that 
there were protected wetlands on his properties, and he chose to 
destroy those wetlands in open defiance of the law, not because he was 
ignorant of the Clean Water Act's applicability.\34\
---------------------------------------------------------------------------
    \32\ U.S. Army Corps of Engineers, Corps of Engineers Wetlands 
Delineation Manual (1987), https://www.lrh.usace.army.mil/Portals/38/
docs/USACE%2087%20Wetland%20Delineation
%20Manual.pdf.
    \33\ See Dave Owen, Consultants, the Environment, and the Law, 61 
Ariz. L. Rev. 823 (2019).
    \34\ See Rapanos v. United States, 547 U.S. 715, 763 (2006) 
(Kennedy, J. concurring). As Justice Kennedy summarizes:
    Informed that the site included between 48 and 58 acres of 
wetlands, Rapanos allegedly threatened to ``destroy'' the consultant 
unless he eradicated all traces of his report. Rapanos then ordered 
$350,000-worth of earthmoving and landclearing work that filled in 22 
of the 64 wetlands acres on the Salzburg site. He did so without a 
permit and despite receiving cease-and-desist orders from state 
officials and the EPA. At the Hines Road and Pine River sites, 
construction work--again conducted in violation of state and federal 
compliance orders--altered an additional 17 and 15 wetlands acres, 
respectively.
    Id.
---------------------------------------------------------------------------
    Additionally, if landowners do not want to pay for consultants or 
want a second opinion, they can ask the Army Corps for a jurisdictional 
determination--a service the agency provides for free.
    The 2022 rule, which is accompanied by detailed and careful 
economic studies, reveals just how egregious the flaws in the 2020 
economic analysis were. After considering the many benefits the 2020 
rule pretended were nonexistent, the 2022 economic analysis finds that 
the new rule is likely to produce between $854 million and $1.97 
billion in net benefits.\35\ These numbers are inexact, of course, and 
the 2022 economic analysis acknowledges these uncertainties.\36\ But 
the overall point of the analysis is clear. The 2022 rule will save 
lots of money and deliver significant benefits to people all across the 
country.
---------------------------------------------------------------------------
    \35\ U.S. Environmental Protection Agency and Department of the 
Army, Economic Analysis for the Final ``Revised Definition of `Waters 
of the United States' '' Rule xvi (2022).
    \36\ Id.
---------------------------------------------------------------------------
                     V. Protecting State Authority
    An additional major failing of the 2020 rule was its 
misunderstanding of state roles in Clean Water Act implementation. This 
failing was ironic, for the previous administration claimed that 
federalism was the central justification for its regulatory changes. 
But it got Clean Water Act federalism completely wrong.
    The Clean Water Act is designed to empower states by helping them 
work with the federal government to protect their water quality. It was 
not designed to let states turn polluters loose. The act, in other 
words, seeks to empower states--and in fact does so--but it empowers 
them to clean up waterways, not to leave them dirty. Because the 2020 
rule misunderstood this basic principle, it would have undermined state 
power.
    The Clean Water Act is built on cooperative federalism. In this 
system, states are crucially important as partners in working toward 
the shared national goal of water quality protection. That system was a 
deliberate choice. Congress knew that water pollution does not respect 
state boundaries and that in the absence of statutory coverage, states 
would be unable to protect themselves from pollution flowing from 
further upstream. Congress also knew that polluting industries would 
play states against each other, seeking favorable treatment. As 
Minnesota Governor Wendell Anderson explained, in testimony quoted by 
multiple members:

        Every governor in the country knows what is the greatest 
        political barrier to effective pollution control. It is the 
        threat of our worst polluters to move their factories out of 
        any State that seriously tries to protect its environment. It 
        is the practice of playing off one State against the other.\37\
---------------------------------------------------------------------------
    \37\ A Legislative History of the Water Pollution Control 
Amendments of 1972 152 (1972) (Statement of Rep. Reuss).

    Congress also knew that state employees were ready to work on 
improving water quality and could tailor water quality programs to 
local needs, which meant they could be valuable partners in improving 
the nation's water quality--if they had federal mandates and support. 
Members repeatedly stressed the important roles states would play in 
implementing the regulatory regime, and the basic concept was to 
``engage[] all levels of government . . . in a concerted national 
effort to cleanse our water.'' \38\
---------------------------------------------------------------------------
    \38\ Id. at 218 (Statement of Sen. Eagleton).
---------------------------------------------------------------------------
    The 2020 rule misunderstood all of this. Its misunderstanding 
began, ironically, with the very text it chose to selectively 
emphasize. They 2020 rule's preamble relied heavily--in fact, nearly 
exclusively--on Clean Water Act section 101(b), which states, in 
relevant part,

        It is the policy of the Congress to recognize, preserve, and 
        protect the primary responsibilities and rights of States to 
        prevent, reduce, and eliminate pollution, to plan the 
        development and use (including restoration, preservation, and 
        enhancement) of land and water resources, and to consult with 
        the Administrator in the exercise of his authority under this 
        chapter.\39\
---------------------------------------------------------------------------
    \39\ 33 U.S.C. Sec.  1251(b) (parentheses in original).

    This language clearly emphasizes the importance of states. But it 
expresses Congress's desire for the states to be heavily involved in 
protecting waters that are subject to Clean Water Act jurisdiction. It 
says nothing about excluding a class of aquatic features from that 
protection or about turning states loose to authorize pollution.
    Other language of section 101 also indicates that the purpose of 
state involvement was to restrain water pollution, not protect 
polluters. Section 101(b) itself begins by noting the 
``responsibilities and rights of States to prevent, reduce, and 
eliminate water pollution.'' \40\ And in section 101(a)--indeed, in the 
very first words of the statute--Congress emphasized that ``[t]he 
objective of this chapter is to restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters.'' \41\ It 
then listed seven specific national policies, all focused on improving 
water quality.
---------------------------------------------------------------------------
    \40\ 33 U.S.C. 1251(b).
    \41\ 33 U.S.C. 1251(a).
---------------------------------------------------------------------------
    The text therefore makes the goal of section 101(b) crystal clear. 
Congress was enlisting the states in pursuit of the crucial national 
goal of protecting water quality. It was not trying to limit the scope 
of the Clean Water Act's coverage.
    Section 101 is not the only Clean Water Act section that 
demonstrates Congress's intent that states be key participants in the 
project of achieving national water quality goals. This emphasis on 
state participation is particularly salient in the act's key permitting 
programs. Clean Water Act section 402, which authorizes the National 
Pollutant Discharge Elimination System (NPDES) permitting program, 
authorizes delegation of permitting authority to state agencies.\42\ 
Nearly every state in the country has taken up this invitation, and 
NPDES permitting now is largely handled at the state level.\43\
---------------------------------------------------------------------------
    \42\ 33 U.S.C. Sec.  1342.
    \43\ See EPA, NPDES State Program Information, https://www.epa.gov/
npdes/npdes-state-program-information.
---------------------------------------------------------------------------
    Similarly, Clean Water Act section 404, which creates the 
permitting program for discharges of dredged or fill material, 
authorizes delegation of permitting authority (except for a subset of 
waters reserved for federal permitting authority) to state agencies, 
but it does not give states the option to exempt waters from regulatory 
protection.\44\
---------------------------------------------------------------------------
    \44\ 33 U.S.C. Sec.  1344(e).
---------------------------------------------------------------------------
    The theme of all these sections, and many others, is that Congress 
valued state involvement, and it expected that state involvement to be 
directed toward the national project of restoring the nation's waters.
    These and other provisions of the Clean Water Act also reflect a 
second theme of section 101(b), which is empowering the states to go 
further than the federal government in protecting water quality, even 
where that meant giving states power over the federal government. One 
of the clearest authorizations for these efforts comes from section 
401, which authorizes states to issue water quality certifications for 
projects involving federally licensed discharges.\45\ Section 401 gives 
states authority to require additional steps, beyond those already 
imposed by federal agencies, to protect state water quality.\46\
---------------------------------------------------------------------------
    \45\ 33 U.S.C. Sec.  1341. In 2020, EPA issued a final rule 
drastically curtailing the scope of states' section 401 certification 
authority, while baldly asserting that its restrictions ``neither 
diminish[] nor undermine[] cooperative federalism.'' Clean Water Act 
Section 401 Certification Rule, 85 Fed. Reg. 42210, 42226 (2020). The 
position embodied in these two rulemakings--that federalism carries 
outcome-determinative importance when states want to authorize water 
pollution and is irrelevant when the states seek to protect their 
waterways--turns the core objective of the Clean Water Act on its head. 
See 33 U.S.C. 1251(a) (``The objective of this chapter is to restore 
and maintain the chemical, physical, and biological integrity of the 
Nation's waters.'').
    \46\ 33 U.S.C. Sec.  1341.
---------------------------------------------------------------------------
    Section 401 reflects a broader theme. As Justice John Paul Stevens 
once pointedly noted, ``[n]ot a single sentence, phrase, or word in the 
Clean Water Act purports to place any constraint on a State's power to 
regulate the quality of its own waters more stringently than federal 
law might require. In fact, the Act explicitly recognizes States' 
ability to impose stricter standards.'' \47\ Likewise, section 1365(e) 
preserves state common law protections, and section 1370 allows 
additional state regulation as long as it is not ``less stringent'' 
than federal requirements.\48\ And section 404, which tends to be at 
the center of jurisdictional controversies, similarly preserves state 
authority to regulate above and beyond federal requirements, even when 
that state regulation constrains federal activities.\49\
---------------------------------------------------------------------------
    \47\ PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology, 511 
U.S. 700, 723 (1994) (Stephens, J. concurring) (citing 33 U.S.C. Sec.  
1311(b)(1)(C)).
    \48\ See 33 U.S.C. Sec. Sec.  1365(e), 1370.
    \49\ 33 U.S.C. Sec.  1344(t).
---------------------------------------------------------------------------
    For decades, states have acted in reliance on these federal 
commitments.\50\ Clean Water Act implementation has honored Congress's 
blueprint for substantial state roles in advancing water quality, while 
also preserving states' ability to be partners in water quality 
protection and to manage land and water resources. Indeed, because many 
of these partnerships depend on federal Clean Water Act jurisdiction, 
the NWPR would actually have undermined state authority.
---------------------------------------------------------------------------
    \50\ For a general summary of state programs, see Association of 
State Wetlands Managers, Status and Trends Report on State Wetlands 
Programs in the United States (2015), https://
www.nawm.org/pdf_lib/state_summaries/
status_and_trends_report_on_state_wetland_
programs_in_the_united_states_102015.pdf.
---------------------------------------------------------------------------
    In practice, states do take the lead in implementing nearly every 
key part of the statute. They adopt water quality standards.\51\ They 
draft water pollution budgets and engage in continuing planning 
processes.\52\ Nearly every state holds delegated authority to issue 
NPDES permits.\53\ And while only three states (Florida, Michigan, and 
New Jersey) have elected to hold delegated authority to issue section 
404 permits, states influence those permits in a variety of ways. Using 
their authority under section 401, states routinely work with the Army 
Corps' district offices to craft the terms of section 404 permits, and 
they also work with the Corps to implement compensatory mitigation 
programs.\54\
---------------------------------------------------------------------------
    \51\ See EPA, State-Specific Water Quality Standards Effective 
under the Clean Water Act (CWA), https://www.epa.gov/wqs-tech/state-
specific-water-quality-standardseffective-under-clean-water-act-cwa 
(last visited October 6, 2020).
    \52\ See EPA, Impaired Waters and TMDLs, https://www.epa.gov/tmdl/
overview-total-maximum-daily-loads-tmdls (last visited October 6, 
2020).
    \53\ EPA, NPDES State Program Information, https://www.epa.gov/
npdes/npdes-state-program-information.
    \54\ See Dave Owen, Regional Federal Administration, 63 UCLA. L. 
Rev. 58, 98-99, 115 (2016).
---------------------------------------------------------------------------
    State involvement, in short, pervades every part of Clean Water Act 
implementation, and state implementation of that authority is often 
intertwined with and supported by federal efforts and contingent upon 
waters falling within Clean Water Act jurisdiction. Consequently, 
unless states enact new legislation and appropriate additional funds, 
many of these state programs would shrink if Clean Water Act 
jurisdiction were narrowed.
    Importantly, there are many other ways in which the Clean Water Act 
leaves state authority intact. Even if a waterway is subject to federal 
jurisdiction, states still retain primary responsibility for allocating 
water rights in that waterway.\55\ If the waterway is navigable-in-
fact--and thus unquestionably subject to Clean Water Act jurisdiction--
the state in which it is located still owns its streambed.\56\ 
Similarly, so long as streams or wetlands are not on federally owned 
land, states and local governments retain their land use authority over 
those streams and wetlands and surrounding uplands. Nor is there de 
facto preemption of that authority. If states or local governments want 
to authorize development in areas with jurisdictional aquatic features, 
they generally can, and they routinely do so; the Corps issues tens of 
thousands of fill permits every year, and permit denials are 
exceedingly rare.\57\
---------------------------------------------------------------------------
    \55\ See generally Barton H. Thompson et al., Legal Control of 
Water Resources (6th ed. 2018) (describing, over hundreds of pages, the 
doctrines states use to allocate waters from waterways subject to Clean 
Water Act jurisdiction)
    \56\ PPL Montana, LLC v. Montana, 565 U.S. 576, 589 (2012) 
(describing ``[t]he rule that the States, in their capacity as 
sovereigns, hold title to the beds under navigable waters'').
    \57\ See Ryan W. Taylor, Federalism of Wetlands 88 (2013) (``During 
the time of this study, the USACE approved an average of 86,427 permits 
per year.''); Dave Owen, Little Streams and Legal Transformations, 2017 
Utah L. Rev. 1, 41 (quoting an experienced state water-quality 
regulator, who observed that ``there is no stopping things, with very, 
very, very limited exceptions'').
---------------------------------------------------------------------------
    In short, federal and state authority routinely and productively 
coexist and support each other, just as the Clean Water Act's drafters 
hoped and intended they would. The 2020 regulations would have 
undermined those partnerships--and would have done so in the false 
guise of protecting states. The 2022 regulations place those 
partnerships back on their traditional foundations, so that states, the 
federal government, and the people of the United States may benefit.
          * * * * *
    In summary, the new Clean Water Act ``waters of the United States'' 
regulations should be welcomed by this Congress. They are consistent 
with the statute, governing legal authority, decades of tradition, and 
the preferences of the American public. They are consistent with 
extensive scientific research emphasizing the importance of streams and 
wetlands--even small ones--to water quality throughout our nation. They 
will help sustain and restore traditional, and successful, partnerships 
between federal and state governments. And they will save the American 
public hundreds of millions of dollars.
    This new rule is not a complete solution to the water quality 
challenges facing the United States, and we have much more work to do 
if we are to fulfill the Clean Water Act's promise and end widespread 
impairment of our waterways. But the new rule is an important step in 
the right direction.

    Mr. Rouzer. I thank the gentleman. I thank all the 
witnesses again for their great testimony.
    We will now move into Member questions, and I will 
recognize myself for 5 minutes.
    Ms. Bodine, I noted in your testimony you state that back-
to-back rainstorms can be considered, quote, ``relatively 
permanent flow.'' What would that mean for California after its 
recent storms or for my home State of North Carolina after a 
hurricane?
    Ms. Bodine. Thank you, Chairman Rouzer.
    I was very surprised when I read that in the preamble. What 
is clear is that the agencies are trying to expand the 
``relatively permanent'' test because they are worried that the 
Sackett case will in fact get rid of the ``significant nexus'' 
test.
    And so, it has language in there about what would be 
considered relatively permanent--and remember, that would be 
automatically regulated--and included flows from back-to-back 
rainstorms as an example.
    That would mean that water that covered the landscape 
because of multiple rainstorms and then ended up moving across 
the landscape could be considered a relatively permanent flow.
    I think that is ludicrous, but the fact that they put that 
as an example in there was deeply troubling.
    Mr. Rouzer. Mr. Hawkins, can you speak to how 
overregulation and broad scope interpretations like 
``significant nexus'' gives firepower to radical 
environmentalists, and trial lawyers in particular, and how it 
creates an easy path to stall or shut down family farms and 
animal agriculture in North Carolina, Missouri, and across the 
country.
    Mr. Hawkins. Thank you for the question, Mr. Chairman.
    I would say, if I could use one word to describe how my 
fellow farmers and ranchers feel, it is ``overwhelmed.'' We 
feel like this new rule essentially shifts the burden of proof 
back to us rather than the agencies. It is almost a notion that 
we are guilty until proven innocent.
    And while folks talk about the exemptions that 
agriculturists had, the reality is I wouldn't be testifying 
today if those longstanding exemptions were tight enough that 
we weren't having farmers embroiled in litigation, not just in 
Missouri but all around the country.
    So, as you look at an expansive definition of WOTUS and the 
potential for more features to fall under Federal regulatory 
control, our farmers have to be concerned about the citizen 
suit provisions and what that could mean in challenging normal, 
everyday practices.
    They have every right to be concerned about future 
investment in their farming operations and have to second-guess 
whether putting in place that conservation practice or building 
that structure or investing in that building is worth it if you 
are going to be embroiled in redtape in a potentially years' 
long process.
    So, overwhelmed with the uncertainty that comes with an 
expansive rule, Mr. Chairman, that would summarize how our 
farmers feel.
    Mr. Rouzer. Ms. Huey, everybody wants affordable housing. 
You hear that talked about all over. I certainly hear it back 
home. Why can't we have more affordable housing when the prices 
are skyrocketing left and right? How would this affect 
affordable housing?
    Ms. Huey. Thank you for the question. We talked about the 
6- to 12-month delay in the jurisdictional determination. That 
is where our project just sits, and we continue to make 
interest payments.
    As a small business owner, that is how I make a living, is 
building homes. I can't absorb all those regulatory costs. I 
have to pass it on to the home buyer.
    As I said earlier, for every $1,000 increase in a median-
priced home, and that is about $412,000, that is 117,000 
families that it prices out of the market. And right now, about 
87.5 million people cannot afford a median-priced home.
    Thank you.
    Mr. Rouzer. Mr. Williams, in your testimony you indicated 
that ditches can be regulated in practice under the new WOTUS 
rule, but the agencies say they will be exempt. What do you 
think is leading to this confusion?
    Mr. Williams. We have had many different rules over the 
years. Sometimes ditches are exempt, sometimes they are 
included.
    The current rule states that any ditch that has flowing 
water or conveys water from one area to another becomes 
jurisdictional. This has a big effect on properties that have 
agricultural fields, for example, or even residential areas 
where ditches are currently included, and it effects our 
ability to permit areas like that, it causes lengthy delays. 
And we will continue to look for ways in which we can get those 
permits and reduce our mitigation costs for those.
    Mr. Rouzer. I thank the panelists. My time has expired.
    I now recognize my good friend from California, Mrs. 
Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    I ask unanimous consent to insert in the record public 
comments by the Metropolitan Water District of Southern 
California and public comments from different attorneys 
general, especially the California attorney general and various 
other attorneys general, supporting the Biden Clean Water Rule.
    Mr. Rouzer. Without objection.
    [The information follows:]

                                 
    Letter of February 7, 2022, to Ms. Damaris Christensen, Oceans, 
   Wetlands and Communities Division, Office of Water, Environmental 
   Protection Agency, and Ms. Stacey Jensen, Office of the Assistant 
  Secretary of the Army for Civil Works, Department of the Army, from 
      Jennifer Harriger, Manager, Environmental Planning Section, 
 Metropolitan Water District of Southern California, Submitted for the 
                   Record by Hon. Grace F. Napolitano
                                                  February 7, 2022.

                                           Submitted Electronically
                                        https://www.regulations.gov

Ms. Damaris Christensen,
Oceans, Wetlands and Communities Division,
Office of Water (4504-T), Environmental Protection Agency, 1200 
        Pennsylvania Avenue NW, Washington, DC 20460.
Ms. Stacey Jensen,
Office of the Assistant Secretary of the Army for Civil Works,
Department of the Army, 108 Army Pentagon, Washington, DC 20310-0104.
    Dear Ms. Christensen and Ms. Jensen:

Docket ID No. EPA-HQ-OW-2021-0602 Revised Definition of ``Waters of the 
United States''

    The Metropolitan Water District of Southern California 
(Metropolitan) appreciates the opportunity to comment on the U.S. 
Environmental Protection Agency (EPA) and the Department of the Army's 
(collectively, Agencies) proposed rule, Revised Definition of ``Waters 
of the United States'' (Proposed Rule). It is Metropolitan's 
understanding that the Agencies intend to revise the definition of 
``waters of the United States'' (WOTUS) using two rulemakings--(1) a 
foundational rule to restore longstanding protections (Part I), and (2) 
an anticipated second rule (Part II) that builds on that regulatory 
foundation; and that the Proposed Rule is only Part I of this 
rulemaking process. (86 Fed. Reg. 69372, 69374 (Dec. 7, 2021.)
    Metropolitan supports the Agencies' Proposed Rule that puts back 
into place the pre-2015 definition of ``WOTUS,'' updated to reflect 
consideration of Supreme Court decisions. As the Agencies expressly 
recognize, the objective of the Clean Water Act (CWA) to protect water 
quality must be considered when defining ``WOTUS.'' (86 Fed. Reg. at 
69387.) The definition of WOTUS is central to the implementation of the 
CWA and has significant implications for Metropolitan's day-to-day 
operations and source water protection efforts.
    After carefully reviewing the Proposed Rule, Metropolitan 
respectfully submits the following comments:
    1.  Support for the Pre-2015 Definition of WOTUS;
    2.  Support for Recent Supreme Court Decisions;
      a.  Any tributary that contributes a significant volume of flow 
to another WOTUS should be covered under the CWA
      b.  Functional equivalency is an important concept to protect the 
Nation's waterways
    3.  Additional Supreme Court Findings Not Reflected in the Proposed 
Rule;
      c.  Metropolitan requests that the Agencies clarify that 
artificial water supply infrastructure is excluded from the definition 
of WOTUS, consistent with Justice Scalia's plurality opinion in Rapanos 
v. United States \1\;
---------------------------------------------------------------------------
    \1\ See Rapanos v. United States, 547 U.S. 715, 736 n.7 (2006) 
(``highly artificial, manufactured, enclosed conveyance systems . . . 
and the `mains, pipes, hydrants, machinery, buildings, and other 
appurtenances and incidents' . . . likely do not qualify as `waters of 
the United States,' despite the fact that they may contain continuous 
flows of water'') (some citations omitted).
---------------------------------------------------------------------------
      d.  If the Agencies add an exclusion for water supply and 
delivery facilities and infrastructure, Metropolitan requests that the 
Agencies clarify that such an exclusion would not affect the 
applicability of the Water Transfers Rule to water transfers from one 
WOTUS to another WOTUS via water supply infrastructure.
    4.  Request Clarification of Part II of Rulemaking Process.
                             A. BACKGROUND
    Metropolitan is a regional water wholesaler that delivers water to 
26 member agencies, which in turn, directly or through their sub-
agencies, provide water to nearly 19 million people in Los Angeles, 
Orange, Riverside, San Bernardino, San Diego, and Ventura counties. 
Metropolitan imports water from the Colorado River and northern 
California and is the largest distributor of treated drinking water in 
the United States. To supply southern California with reliable and safe 
water, Metropolitan owns and operates an extensive water system 
including the Colorado River Aqueduct, 15 hydroelectric facilities, 9 
open-water reservoirs, 830 miles of large-scale pipes, and 5 water 
treatment plants.
    As a steward of southern California's imported water supply, 
Metropolitan supports CWA amendments and regulations that protect 
current and future water quality for both surface water bodies and 
groundwater basins that serve as drinking water sources. The watersheds 
for Metropolitan's water sources span California and the Colorado River 
Basin, which includes the states of Wyoming, Utah, Colorado, Arizona, 
Nevada, and New Mexico. Protection of these source waters and 
watersheds is of paramount importance. As such, any potential for 
source water degradation through insufficient oversight in areas 
proximate to rivers and tributaries is an issue of concern.
    Metropolitan strongly supports the stated objectives of the CWA to 
restore and maintain the quality of the Nation's waters while 
respecting the primary responsibilities and rights of states and tribes 
over their land and water resources. In this regard, Metropolitan 
appreciates that the Agencies realize they must consider the CWA's 
principal objective ``to restore and maintain the chemical, physical, 
and biological integrity of the Nation's waters'' in interpreting the 
scope of the statutory term ``waters of the United States.'' (86 Fed. 
Reg. 69387.) Furthermore, ``as the text and structure of the Act, 
supported by legislative history and Supreme Court decisions, make 
clear--chemical, physical and biological integrity refers to water 
quality.'' (Id.) In the comments below, Metropolitan asks the Agencies 
to clarify a few areas and to continue to ensure the protection of 
sources of drinking water in the new rule.
                    B. COMMENTS ON THE PROPOSED RULE
1. Support for the Pre-2015 Definition of WOTUS
    The Proposed Rule retains the familiar categories of waters in the 
1986 regulations--traditional navigable waters, interstate waters, 
``other waters,'' impoundments, tributaries, the territorial seas, and 
adjacent wetlands--while proposing to add, where appropriate, a 
requirement that waters also meet either the significant nexus standard 
or the relatively permanent standard. (86 Fed. Reg. at 69387.) In 
general, Metropolitan agrees with the Agencies that returning to the 
pre-2015 definition of WOTUS provides ``a known and familiar framework 
for co-regulators and stakeholders.'' (86 Fed. Reg. at 69374; see also 
id. at 69404-06.) For example, Metropolitan relies on A Field Guide to 
the Identification of the Ordinary High Water Mark (OHWM) in the Arid 
West Region of the Western United States (ERDC/CRREL TR-08-12, Lichvar 
and McColley 2008) to discern the physical limits of non-wetland 
aquatic resources, as well as the EPA's and Army Corps' Rapanos 
Guidance \2\ to determine potential federal jurisdiction. Also, the 
Agencies have over a decade of nationwide experience in making 
decisions regarding jurisdiction under the 1986 regulations consistent 
with the relatively permanent standard and the significant nexus 
standard as interpreted by the Rapanos Guidance. (86 Fed. Reg. at 
69405.) Thus, because the Proposed Rule ``reflects consideration of the 
agencies' experience and expertise, as well as updates in 
implementation tools and resources, it is familiar and implementable.'' 
(86 Fed. Reg. at 69374.)
---------------------------------------------------------------------------
    \2\ ``Clean Water Act Jurisdiction Following the U.S. Supreme 
Court's Decision in Rapanos v. United States & Carabell v. United 
States,'' EPA and Army Corps, December 2, 2008.
---------------------------------------------------------------------------
    More specifically, Metropolitan supports the pre-2015 practice of 
identifying jurisdictional tributaries through physical indicators, 
specifically: (1) indicators of ordinary high water mark (OHWM), and 
(2) connectivity to a traditional navigable waterway. First, the 
regulations identify the factors to be applied to identify the OHWM, 
defined in 33 CFR Part 328.3, and these regulations have been further 
explained in the Regulatory Guidance Letter (RGL) 05-05 (December 7, 
2005) (RGL 05-05). Metropolitan understands that under the Proposed 
Rule, the Agencies will apply the regulations, RGL 05-05, and 
applicable OHWM delineation manuals and take other steps as needed to 
ensure that the OHWM identification factors are applied consistently 
nationwide. (86 Fed. Reg. at 69437 (citing Rapanos Guidance at 10-11, 
n. 36.)) Second, in the Rapanos Guidance, the Agencies identify 
numerous functions provided by tributaries and wetlands that are 
relevant to the significant nexus determination. (86 Fed. Reg. at 
69437.)
    In comparison, the Navigable Waters Protection Rule's (NWPR's) and 
the Clean Water Rule's reliance on alternative characteristics--
including flow regime, watershed size, landscape position, or distance 
from a navigable waterway--are not relevant characteristics of 
jurisdictional tributaries. In addition, Metropolitan agrees with the 
Agencies that key elements of the NWPR's definition of tributary were 
very difficult to implement. (86 Fed. Reg. at 69422.) For these 
reasons, Metropolitan supports the pre-2015 practice of identifying 
jurisdictional tributaries through physical indicators.
2. Support for Recent Supreme Court Decisions
            a. A Tributary that Contributes a Significant Volume of 
                    Flow to Another WOTUS Should Be Covered Under the 
                    CWA
    As explained above, the watersheds for Metropolitan's water sources 
span California and the Colorado River Basin. Protection of these 
source waters and watersheds is critical to the health and welfare of 
the residents of southern California and will support Metropolitan's 
and other western water agencies' efforts to provide reliable and 
affordable high-quality water in the western United States. As a 
regional water provider with source water originating in multiple 
jurisdictions, Metropolitan highly values the protection of the quality 
of its source waters.
    Metropolitan believes that any tributary that contributes a 
significant volume of flow--whether it is ephemeral, intermittent, or 
perennial, and whether the flow is contributed above the surface or 
transmitted through waters located below the surface--to another WOTUS 
should be covered under the CWA. As the Agencies previously recognized, 
``an ephemeral feature may constitute a point source that discharges 
pollutants to a `water of the United States.' '' (84 Fed. Reg. 4154, 
4176 (Feb. 14, 2009) (citing Rapanos v. United States, 547 U.S. at 743-
44 (Scalia, J., plurality)).
            b. Functional Equivalency is an Important Concept to 
                    Protect the Nation's Waterways
    Metropolitan supports the Supreme Court's ruling in County of Maui 
v. Hawaii Wildlife Fund that found a CWA permit is required when a 
point source pollutant discharged to groundwater has the same 
functional equivalency as a direct discharge to a navigable water. 
County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1476 (2020). 
The Supreme Court set forth seven factors that help determine 
functional equivalency: ``(1) transit time, (2) distance traveled, (3) 
the nature of the material through which the pollutant travels, (4) the 
extent to which the pollutant is diluted or chemically changed as it 
travels, (5) the amount of pollutant entering the navigable waters 
relative to the amount of the pollutant that leaves the point source, 
(6) the manner by or area in which the pollutant enters the navigable 
waters, and (7) the degree to which the pollution (at that point) has 
maintained its specific identity.'' (County of Maui, 140 S. Ct. 1462, 
1476 (April 23, 2020).) This ruling is consistent with Metropolitan's 
previous comments on Docket ID Number: EPA-HQ-OW-2018-0063--Clean Water 
Act Coverage of ``Discharges of Pollutants'' via a Direct Hydrologic 
Connection to Surface Water, as well as previous CWA guidance by EPA 
(66 Fed. Reg. 2960, 3017 (Jan. 12, 2001)).
    Metropolitan believes that subjecting the above features to CWA 
permitting is consistent with the text, structure, and purpose of the 
CWA. The CWA's objective is to ``restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters.'' (33 U.S.C. 
Sec.  1251(a).) The Agencies have the authority to permit such 
releases, and CWA permitting is the best way to protect the chemical, 
physical, and biological integrity of source water quality, such as in 
the Colorado River Basin states. Furthermore, Metropolitan appreciates 
the Agencies' recognition that ``[c]onsistent with the Supreme Court's 
opinion in Maui, a rule defining `waters of the United States' must 
consider its effects on the chemical, physical, and biological 
integrity of the Nation's waters. And--as the text and structure of the 
Act, supported by legislative history and Supreme Court decisions, make 
clear--chemical, physical, and biological integrity refers to water 
quality.'' (86 Fed. Reg. at 69407.) The development of a Proposed Rule 
that protects source water quality is of paramount importance to 
Metropolitan.
3. Additional Supreme Court Findings Not Reflected in the Proposed Rule
            a. Artificial water supply infrastructure should be 
                    excluded from the definition of WOTUS, consistent 
                    with Justice Scalia's plurality opinion in Rapanos 
                    v. United States
    Metropolitan requests that the Agencies provide a separate, clear 
exclusion for water supply and delivery facilities and infrastructure. 
Adding an express exclusion for water supply and delivery facilities 
and infrastructure would further the Agencies' goal of providing 
greater clarity over which waters are and are not regulated under the 
CWA, would simplify the jurisdictional determination process, and would 
be consistent with the purpose of the CWA and the Agencies' 
interpretation of the CWA and Supreme Court precedent. (See 86 Fed. 
Reg. at 69424 (the longstanding exclusions for prior converted cropland 
and waste treatment systems from the WOTUS definition ``provide 
important clarity''); see also 85 Fed. Reg. 22250, 22317-18 (Apr. 21, 
2020).)
    Public water supply and delivery facilities and infrastructure 
should be excluded from regulation under WOTUS, similar to the 
exclusion provided for waste treatment systems. (See 85 Fed. Reg. at 
22324--recognizing the importance of water reuse and recycling 
``particularly in the arid West where water supplies can be limited and 
droughts can exacerbate supply issues,'' the Agencies excluded water 
reuse and wastewater recycling structures constructed or excavated in 
upland or non-jurisdictional waters.) Waste treatment systems treat 
waters to remove contaminants to allow that water to be discharged to 
the ground for groundwater recharge and other beneficial uses. The 
longstanding practice of the Agencies has been to exclude these 
facilities from regulation under the CWA. (86 Fed. Reg. at 69424.)
    Public water systems typically divert waters from a WOTUS into a 
water system that conveys, stores, treats, and delivers water to 
residential, agricultural, and industrial users. This water has value, 
and the costs to treat water to drinkable standards are high. 
Generally, public water agencies are extremely protective of the 
quality of water in their systems and spend a large amount of money to 
protect water quality both in the system and in source waters. 
Excluding these systems from regulation as a WOTUS will not result in a 
degradation of water quality. Conversely, regulating public water 
systems will result in increased costs for permitting and compliance 
and may subject public water systems to separate and conflicting 
regulations when these agencies try to comply with federal and state 
drinking water requirements, as well as CWA requirements.
    When clean water is delivered to water agency customers, those 
users then subject that water to various residential, agricultural, and 
industrial uses. Wastewaters from those uses are delivered to 
wastewater recycling agencies, where the water is treated and then 
reused or released. If excluding waste treatment systems from the 
definition of WOTUS is consistent with the goals of the CWA, then 
surely excluding public water systems that supply clean water to users 
before the wastewater is generated should be excluded for the same 
reasons.
    Accordingly, Metropolitan requests that the Agencies provide a 
clear exclusion for artificial drinking water supply and delivery 
facilities and infrastructure. Similar to the exclusion for waste 
treatment systems which includes treatment ponds or lagoons (86 Fed. 
Reg. at 69449 (proposed revised 33 C.F.R. Sec.  328.3(a)(8))), an 
exclusion for drinking water supply infrastructure should include all 
components which are necessary for the supply, transportation, storage 
treatment, and delivery of drinking water, including canals, siphons, 
pipelines, reservoirs, groundwater basins, dewatering structures, water 
treatment plants, and pumping plants. Adding this exclusion would 
further the Agencies' goal of providing greater clarity over which 
waters are and are not regulated under the CWA and would simplify the 
jurisdiction issue. (See 86 Fed. Reg. at 69424; 85 Fed. Reg. at 22317-
18.) Excluding water supply infrastructure would also be consistent 
with the Agencies' view that ``features that move water (particularly 
in the arid West) that do not eventually reconnect into a tributary or 
other jurisdictional water would not be jurisdictional. . . .'' (84 
Fed. Reg. at 4195.)
    Furthermore, artificial water supply infrastructure features are 
regulated under a number of other federal laws, including the federal 
Safe Drinking Water Act. Also, requiring water agencies to maintain 
water stored in an artificial reservoir or canal at water quality 
levels equal to natural water bodies, or to obtain dredge and fill 
permits to perform maintenance work in an artificial canal, does not 
further the purposes of the CWA. Lastly, excluding water supply 
infrastructure is consistent with case law that certain waters and 
features are not subject to the CWA. See, e.g., Rapanos v. United 
States, 547 U.S. 715, 736 n.7 (2006) (``highly artificial, 
manufactured, enclosed conveyance systems--such as `sewage treatment 
plants,' . . . and the `mains, pipes, hydrants, machinery, buildings, 
and other appurtenances and incidents' of the city of Knoxville's 
`system of waterworks,' Knoxville Water Co. v. Knoxville, 200 U.S. 22, 
27, 26 S. Ct. 224, 50 L. Ed. 353, 3 Ohio L. Rep. 572 (1906)--likely do 
not qualify as `waters of the United States,' despite the fact that 
they may contain continuous flows of water'') (some citations omitted).
            b. Clarify That The Water Transfers Rule Will Continue To 
                    Apply To Water Transfers Through Water Supply 
                    Infrastructure
    If the Agencies add an exclusion for water supply and delivery 
facilities and infrastructure, Metropolitan requests that the Agencies 
clarify that such an exclusion would not affect the applicability of 
the Water Transfers Rule to water transfers from one WOTUS to another 
WOTUS via water supply infrastructure. Under the Water Transfers Rule, 
water transfers are exempt from the requirements of obtaining a permit 
under Section 402 unless pollutants are introduced by the water 
transfer activity itself to the water being transferred. (40 C.F.R. 
Sec.  122.3(i).) ``Water transfer means an activity that conveys or 
connects waters of the United States without subjecting the transferred 
water to intervening industrial, municipal, or commercial use.'' (40 
C.F.R. Sec.  122.3(i).) Typical water transfers ``route water through 
tunnels, channels, and/or natural stream water features, and either 
pump or passively direct it for uses such as providing public water 
supply, irrigation, power generation, flood control, and environmental 
restoration.'' (73 Fed. Reg. 33697, 33698 (June 13, 2008). (Emphasis 
added.)
    As EPA has noted, ``Water transfers are an essential component of 
the nation's infrastructure for delivering water that users are 
entitled to receive under State law.'' (73 Fed. Reg. at 33702.) In 
fact, ``[m]any large cities in the west and the east would not have 
adequate sources of water for their citizens were it not for the 
continuous redirection of water from outside basins.'' (Id., at 33698.) 
On January 18, 2017, the Second Circuit upheld the Water Transfers Rule 
as a ``reasonable construction of the Clean Water Act supported by a 
reasoned explanation.'' Catskill Mountains Chapter of Trout Unlimited, 
Inc. v. EPA, 846 F.3d 492, 533 (2nd Cir. 2017), cert. denied, 138 S. 
Ct. 1164 (2018). In the Preamble to the Proposed Rule, the Agencies 
state that the Proposed Rule ``would not affect the existing statutory 
or regulatory exemptions or exclusions from section 402 NPDES 
permitting requirements, such as . . . the status of water transfers.'' 
(86 Fed. Reg. at 69416.) Accordingly, Metropolitan asks the Agencies to 
clarify that the Water Transfers Rule--which is essential for the 
social and economic health of the arid West where water sources are 
often located far away from where the water is ultimately used--will 
continue to apply to water transfers from one WOTUS to another WOTUS 
via water supply infrastructure, even if water supply infrastructure is 
excluded from the definition of WOTUS. If portions of Metropolitan's 
drinking water infrastructure were to be considered WOTUS, expensive, 
complex, and time-consuming CWA permits could be required, except if 
the Water Transfers Rule applied.
4. Request Clarification of Part II of Rulemaking Process
    Metropolitan requests that the Agencies clarify the process and 
substance of Part II of the WOTUS rulemaking process. The Agencies 
state in the Preamble to the Proposed Rule that they ``anticipate 
developing another rule that builds upon the regulatory foundation of 
this rule with the benefit of additional stakeholder engagement and 
which could, among many issues, consider more categorical approaches to 
jurisdiction.'' (86 Fed. Reg. at 69399.) It is unclear at this point 
what other issues would remain and what additional regulations would be 
needed after Part I of this rulemaking process to better restore the 
chemical, physical, and biological integrity of the Nation's waterways.
    Also, over the past several years, the definition of ``waters of 
the United States'' has changed each time there has been a new 
Administration, and every new definition has been challenged with 
litigation. As a result, Metropolitan asks the Agencies to adopt a rule 
in 2022 that: (1) reduces or eliminates the uncertainty that led to the 
past decade of debate over WOTUS; (2) accommodates regional hydrologic, 
geologic, and geographic differences where warranted and appropriate; 
and (3) strikes a balance that preserves the environmental values 
identified in the CWA while allowing for regulatory certainty and the 
timely and cost-effective investment in infrastructure needed to meet 
local water supply and treatment needs.
                             C. CONCLUSION
    The definition of WOTUS is critical to the implementation of the 
CWA. How WOTUS is defined has significant implications for 
Metropolitan's day-to-day operations, as well as source water 
protection efforts. Metropolitan requests that the Agencies: (1) 
clarify that water supply infrastructure is excluded from the 
definition of WOTUS; and (2) continue to ensure the protection of 
source water quality.
    We appreciate having the opportunity to provide input to this 
process. If you have any comments or questions, please contact Sean 
Carlson.
        Very truly yours,
                                         Jennifer Harriger,
                           Manager, Environmental Planning Section,
                Metropolitan Water District of Southern California.

                                 
Letter of February 7, 2022, to the U.S. Environmental Protection Agency 
and U.S. Army Corps of Engineers from Attorneys General of California, 
   New York, Connecticut, Illinois, Maine, Maryland, Massachusetts, 
  Michigan, New Mexico, North Carolina, Oregon, Vermont, Washington, 
  Wisconsin, the District of Columbia, the City of New York, and the 
   California State Water Resources Control Board, Submitted for the 
                   Record by Hon. Grace F. Napolitano
    The 22-page letter is retained in committee files and is available 
online at https://oag.ca.gov/system/files/attachments/press-docs/
WOTUS%20Rule%20States%27%20
Comment%20Letter_02072022.pdf.

    Mrs. Napolitano. I also ask unanimous consent to include in 
the record the latest map produced by EPA that shows the areas 
of the country that depend on ephemeral and intermittent 
streams for their drinking water.
    Mr. Rouzer. Without objection.
    [The information follows:]

                                 
  Map Showing Percentage of Intermittent Stream Length by Watershed, 
          Submitted for the Record by Hon. Grace F. Napolitano

         Percentage of Intermittent Stream Length by Watershed
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


    Mrs. Napolitano. As shown above, you can tell where all the 
drought is where the ephemeral and intermittent streams meet 
which are affected most.
    Mr. Owen, many California residents and farmers receive 
water that starts as ephemeral or intermittent streams. Over 
the past month, the West has experienced extensive storms that 
have temporarily replenished these streams, but are unlikely to 
resolve the long-term drought.
    As the Southern California MWD and California's attorney 
general have stated in the comments just submitted for the 
record, source waters must be protected by the Clean Water Act 
or else families, businesses, and farmers will bear the costs 
of cleaning the water before it is suitable for drinking, 
swimmable, or usable.
    Can you discuss how important it is for water agencies and 
water users to have protection of their water sources, and what 
effects they face if their waters are not protected?
    Mr. Owen. Yes. There are two main effects that come from 
failing to protect source waters. One is a loss of water 
supply. If you fill in source waters, then often you are 
filling in areas where water infiltrates, seeps into the 
ground, and then back into surface waterways, or from which it 
flows into larger waterways.
    That water instead moves off the landscape much more 
quickly as a flood, which is obviously damaging, but it also 
means that later on, when things dry out and we need more 
water, it is not there. And so, that forces water suppliers to 
go in search for additional water, which can be very costly if 
they can find it.
    The other effect is a loss of water quality. That is 
because pollution flows downstream. And so, as we put 
pollutants in source waters, which is what we are discussing 
doing today, some of that pollution will migrate downstream.
    We also lose the pollution control ability of source 
waters. So, smaller waterways are very, very effective at 
taking some nutrients out of waterways. When those nutrients 
move downstream, we tend to get blue-green algae blooms, which 
are toxic, which can again shut down water supplies.
    So, all of this means that when we don't protect source 
waters, we are essentially giving up a significant part of our 
water supply and water treatment infrastructure. And then we 
just have to spend more money further downstream in order to 
replace the infrastructure we have let go, and those costs are 
passed on to consumers.
    Mrs. Napolitano. Thank you, sir.
    Mr. Owen, during the Trump administration, efforts were 
made to roll back the protections under section 401 of the 
Clean Water Act which allow States and Tribes to protect State 
water resources.
    Can you discuss the importance of strong section 401 
protections and how that might be impacted by Trump's ``dirty 
water rule''?
    Mr. Owen. Yes. So, I think section 401 is one of the least 
appreciated and most important parts of the statute. As I 
explained earlier, section 401 is key to the Clean Water Act 
giving States power to protect their water quality and power 
over the Federal Government. And during the Trump 
administration, the administration proposed rules that were 
specifically designed to gut section 401 authority and limit 
State power.
    I think that gives the lie to the claim that this is all 
about protecting States or that it is significantly about 
protecting States. That was not the motivation.
    If you combine a loss of authority under section 401 with a 
loss of the scope of jurisdiction under the Clean Water Act 
more generally, that is a one-two gut punch to State power to 
protect water quality, because it means not only do the States 
have less influence where jurisdiction exists, but they also 
less ability to protect themselves from activities authorized 
by the Federal Government.
    Mrs. Napolitano. Thank you, Chairman Rouzer. I yield back, 
sir.
    Mr. Rouzer. Mr. Webster, you are recognized for 5 minutes.
    Mr. Webster of Florida. Thank you, Mr. Chair.
    Mr. Hawkins, you, I think, mentioned in your testimony that 
there were advantages, and one of those advantages was low-
lying areas in a field would collect water. And could you 
explain how those are advantages?
    Mr. Hawkins. Congressman, can you repeat the last part of 
your question?
    Mr. Webster of Florida. Could you explain how having low-
lying areas in a field that collect water in a storm or 
something are--actually I think you used the word 
``advantage.'' So, how are they advantaged by that?
    Mr. Hawkins. Well, as I think about agriculture as a whole, 
as I think about my own State of Missouri, something we are 
blessed with is certainly diversity in agriculture. And we farm 
or ranch where we do because we have access to water.
    And as I think through this rule, every farmer or rancher 
has to think about the features that they have on their 
property and question whether all of a sudden now they are 
potentially jurisdictional and therefore fall under the 
authority of the EPA and the Corps.
    As we talk about features, truly what comes back to my 
mind, Congressman, is uncertainty, regulatory uncertainty as to 
the responsibility that comes along with those features.
    As I hear from our farmers, as they have questions because 
of the length and the scope of this rule when they read terms 
like ``similarly situated,'' ``in the region,'' ``material 
influence,'' when they say, ``What do I need to do?'' I can't 
in good faith ask them to go to one of our six district Corps 
offices in the State without first consulting with legal 
counsel or an environmental expert to walk them through the 
potential ramifications and what happens as they look at 
continuing to invest in their property and ultimately put more 
conservation on the ground.
    So, that is what comes to mind. Whether it is a low-lying 
area, a ditch or anything, our farmers and ranchers across the 
country are a mesh of all of these features. And truly they are 
blessings when we think about access to water and ultimately 
our ability to produce food, fiber, and renewable fuel.
    Ultimately this is what it is about for us, Congressman. It 
is about continuing to use the resources with which we have 
been blessed and are truly the envy of the world.
    So, let's take a commonsense approach to this, and that is 
what our farmers have asked for a long time. We want clean 
water because we need clean water for our families and for our 
livestock, but we also need clear rules.
    Thank you.
    Mr. Webster of Florida. Thank you for that answer.
    Several years ago, we had a joint hearing with the 
Committee on Transportation and Infrastructure and the Senate 
Committee on Environment and Public Works and others after the 
Supreme Court had ruled the definition to be unconstitutional.
    At that time, the Army Corps of Engineers and the EPA, I 
believe, had joined up to do a new rule, which was similar or 
maybe even more oppressive than the one that was there. Now I 
am hearing that they are teaming up again.
    Why do you think that is?
    Mr. Hawkins. Was that directed to me again, Congressman?
    Mr. Webster of Florida. Yes.
    Mr. Hawkins. Well, I would just say, as I think back to the 
2015 rule, I guess one thing that was certain is that there was 
the broadest expansion of the Clean Water Act arguably that we 
had seen since its inception in 1972.
    What is different about this approach? I would describe it 
as regulatory creep, regulatory creep in the sense that it is 
going to come in a case-by-case determination across the 
landscape, whether that is in Missouri, California, you name 
it.
    So, I still think the end results will be the same in terms 
of more dry land under the jurisdiction of the Federal 
agencies, but it is going to happen over time, case by case, 
and ultimately a regulatory creep that is going to happen 
across the United States landscape.
    Mr. Webster of Florida. Thank you very much. That is a 
great definition: regulatory creep. So, thank you for bringing 
that up, too.
    Mr. Chairman, I yield back.
    Mr. Rouzer. The gentleman yields back.
    I now recognize Mr. Larsen.
    Mr. Larsen of Washington. Thank you, Mr. Chair. Some 
questions for the panelists.
    I am not a lawyer. I presume, Mr. Williams, Ms. Huey, and 
Mr. Hawkins, you are not lawyers as well. So, we can maybe talk 
at that level. But I do want your opinion on the law.
    First, from Mr. Hawkins. And maybe you don't have one. 
Maybe the Farm Bureau has an opinion on whether or not you 
expect the Supreme Court to write a new test in the Sackett 
case if the Government loses and the proponents win. What is 
your expectation?
    Mr. Hawkins. OK. Well, I would certainly hope that we----
    Mr. Larsen of Washington [interrupting]. I am not asking 
what you hope.
    Mr. Hawkins. I think that the arguments that the American 
Farm Bureau, that the Sackett family have put forward, are very 
compelling arguments. I would say that.
    Mr. Larsen of Washington. Do you expect, though, that the 
Supreme Court will write a new test? They could decide for 
Sackett and not write a test. They could write a new test. If 
they don't write a test, we have uncertainty. If they do write 
a test, you don't know what it is, and I don't know what it is, 
and that sounds like uncertainty.
    Mr. Hawkins. It is uncertainty. That is why we have said no 
SCOTUS before WOTUS--or no WOTUS before SCOTUS. Sorry. I got it 
backwards.
    Mr. Larsen of Washington. I understood what you meant.
    Ms. Huey, so, the same question for the homebuilders, what 
the position on that is. What do you expect if Sackett--if the 
proponents win, what do you expect?
    Ms. Huey. Well, I would still love to hope. But----
    Mr. Larsen of Washington [interrupting]. We are in the hope 
business up here, but we have to actually make decisions 
sometimes based on what we know and what we don't know.
    Ms. Huey. Yes, sir. I agree with my colleague. It is the 
uncertainty that is the problem for us.
    I deal with codes and everything in construction that gives 
me a clear guideline for how to build a house.
    Mr. Larsen of Washington. Yes, sure.
    Ms. Huey. But this does not. We need the certainty and the 
clear rules.
    Mr. Larsen of Washington. And I don't mean to interrupt you 
or talk over you. But if you don't get a test out of the 
Supreme Court if the proponents win, then you don't have a 
test, and we are left with uncertainty.
    Ms. Huey. Uncertainty, yes, sir.
    Mr. Larsen of Washington. That is kind of the point I am 
getting at. I mean, arguing about certainty really doesn't fly.
    Mr. Williams, we talked yesterday, so I kind of teed you up 
a little bit on this. Do the Sand & Gravel folks have a view on 
that?
    Mr. Williams. We believe the Supreme Court will be able to 
offer a clear definition of what is jurisdictional, help us to 
create that line that says: What is relatively permanent? What 
is not under Federal jurisdiction but should be under State 
jurisdiction?
    Mr. Larsen of Washington. As clear as Scalia and Kennedy 
did in 2000 and whatever it was?
    Mr. Williams. We believe they can come up with a clearer 
definition this time around.
    Mr. Larsen of Washington. OK. Thanks. I am making my point. 
You guys get it. I am making my point on this one.
    Mr. Owen, is it a fair assessment--I am thinking through 
about this issue--kind of leaving it to the States to fill the 
gap when the Trump-era rule came out, to fill a gap on clean 
water. It doesn't sound like that happened. Is it a fair 
assessment that there is little evidence the States had 
uniformly to come in to fill the gaps created by the Trump-era 
rule?
    Mr. Owen. So, there have been some moves in a few States to 
fill gaps, but no across-the-board movement, nothing close to 
it. And it is understandable. Like, it is essentially an 
unfunded mandate for States to come up with water quality 
programs to backfill what the Federal Government had been 
doing, or at least an unfunded request because they don't have 
to do it.
    And the States don't have the resources. They have been 
relying, in many cases, on a partnership with the Federal 
Government to protect waters and not developing their own 
programs. And so, it is not an easy thing for them to do, and 
we shouldn't be surprised that they don't do it.
    Mr. Larsen of Washington. Yes. Look, as a former county 
council member, I am not--I mean, I support the Clean Water 
Act. I support clean water. I support having the EPA involved. 
But I also understand that there is a frustration with 
uncertainty, and I am just saying--thinking back when I was on 
the county council trying to make some decisions as a local 
elected about what is certain and what is not certain on land 
use.
    I mean, I get what you are going through. I am not arguing 
that houses aren't great, and food isn't great, and we don't 
need sand and gravel. I am not making those arguments at all.
    I am just concerned that we are not going to get what 
anyone wants out of the Supreme Court because I just don't 
know--unless they become an activist Supreme Court--which I 
presume we don't want out of the Supreme Court, I thought that 
they weren't supposed to be activists--and they move forward 
and write a test.
    And so, I just think we are headed towards a more uncertain 
future.
    And with that, I have no time to yield back.
    Mr. Rouzer. Mr. Babin.
    Dr. Babin. Yes, sir. Thank you very much, Mr. Chairman.
    And I want to thank all the witnesses for being here today 
as well.
    Unfortunately, over the last few decades, we have watched 
the Obama and Biden administrations use WOTUS and its 
definition basically as a political football used to punish 
farmers, the energy industry, builders and contractors who rely 
on water, and prop up lawyers racking up legal fees. Bigger 
Government, confusion, and redtape, that is what this 
administration seems to see as an end goal to WOTUS.
    The rule was released as the U.S. Supreme Court prepares, 
as we speak, to decide a case, as we have heard today, Sackett 
v. EPA, which will provide more clarity on the issue. I am very 
disappointed that EPA has moved ahead with its final rule while 
the Supreme Court will soon render a decision on this matter.
    And we can hope, and we can expect, and on and on. But the 
fact of the matter is, the Supreme Court will make a ruling. 
And this ruling could negate major elements of this WOTUS rule 
and will create even more uncertainty for farmers.
    Unfortunately, the new WOTUS rule, once again, gives the 
Federal Government sweeping authority over private lands, and 
this isn't what clean water regulations were intended to do 
originally. This new rule is vague, it creates uncertainty for 
America's farmers, even if they are miles from the nearest 
navigable waters.
    As a result of all this, you have seen members of the 
agriculture community rally and legally challenge this rule. 
Republicans strongly support this.
    Mr. Hawkins of the Missouri Farm Bureau, sir, this is your 
question. You have made some great points with your comments 
and some of your answers today. If there is one takeaway that 
you would like the members of the committee and the folks 
watching at home to take away from this hearing today, please, 
what would it be?
    Mr. Hawkins. Well, Congressman, thank you for the question.
    If I can talk personally, as a farmer and a father, there 
is nothing more that I want to do than bring my kids home to 
the farm. And as I plan for the future, everything that I am 
doing is about trying to hopefully instill a work ethic and a 
passion for my kids that they love production agriculture and 
want to become the sixth generation.
    Right now, we are investing our own dollars in putting in 
an intensive grazing system. This is the first time my family 
has actually contracted with the USDA to do something like 
this, to put more conservation on the ground. We already do 
conservation, but in this case we put our own dollars on the 
line to cost-share through the Environmental Quality Incentives 
Program.
    As I think about this, we are doing it because it is the 
right thing to do, to better steward the forage that we have 
and to better steward our water resources, ultimately produce 
healthy cattle as we think about how we rotate those animals. 
And it is all about stewardship.
    As I think about this rule, though, I have to question, how 
is that going to impact going forward my ability to do more 
conservation on the ground or to construct facilities on the 
ground and how I manage my livestock? And then it begs the 
question: Why? Why would my kids want to do it if they see 
their father embroiled in redtape with the Government?
    And so, truly, Congressman, as I think about this, I 
implore you to help us help those who are going to come behind 
us, because that is truly why I am here. It is about helping 
the next generation of those who are going to produce food, 
fiber, and fuel for this country.
    Dr. Babin. Absolutely. And I really appreciate that honest 
answer.
    Still a minute left, if any of the other witnesses would 
like to chime in on that.
    Mr. Williams. I would be glad to.
    Dr. Babin. Yes, sir. Mr. Williams.
    Mr. Williams. Congress has provided an immense amount of 
funding for infrastructure. The aggregates industry wants to be 
the provider and get those projects done, get those projects on 
the ground. And if we have delays that come from wetland 
permitting and other delays that are required by this entire 
process, all of that just makes these projects last longer and 
perhaps we can't even get our permits to open a new facility.
    So, our dream is to get to work and be able to get our 
permits when we need them.
    Dr. Babin. Absolutely.
    Mr. Chairman, I am almost out of time. So, I will yield 
back. Thank you.
    Mr. Bost [presiding]. And the gentleman yields back.
    The gentleman, Mr. Garamendi, is recognized.
    Mr. Garamendi. Thank you.
    Mr. Hawkins, I wasn't going to ask you a question, but in 
your response to Mr. Babin you very well articulated my own 
personal situation. I am a rancher. Our ranch is in a 
conservation easement.
    My question to you, as you talked about the future and 
about your ranch and your love of it, how would you write the 
law or the regulations to protect the waters that are on your 
ranch and adjacent and probably flowing into larger streams? 
How would you write it?
    Mr. Hawkins. Thank you for the question. And thank you for 
your ranching background and what you have contributed through 
the years as well.
    I would say, what our farmers and ranchers appreciated 
about the Navigable Waters Protection Rule was that, for the 
first time since 1972, that there were actual bright lines. And 
we in Missouri are very comfortable with the regulatory 
authority within our Department of Natural Resources and the 
example of cooperative federalism that we see under the Clean 
Water Act.
    We have a citizen-led commission, the Clean Water 
Commission in the State, that is essentially a sounding board 
and an oversight mechanism as the Clean Water Act and the 
State-accompanying laws and regulations are implemented.
    So, I would say, in our example, we have a process that 
works. And so, the bright lines under the NWPR were what were 
appreciated because, for the first time, we actually felt 
certainty.
    I would also add, Congressman, that outside of the scope of 
the Clean Water Act, we in Missouri have shown time and time 
again that we are willing to go above and beyond to put 
practices on the ground that ultimately preserve soil and 
improve water quality.
    Since the mid-1980s, we have had in place a sales tax, the 
one-tenth cent sales tax, half of which goes to State parks, 
the other to soil and water conservation. That has been 
reapproved overwhelmingly by Missouri in every decade since 
because it has proven--proven--to improve parks, but more 
importantly, it is helping us save soil and improve water 
quality by helping cost-share with farmers to do more on the 
ground.
    That is what this is about, truly, for us. We have shown 
that we care about clean water, and we put our money out there 
every day to access these resources to do more.
    Mr. Garamendi. I appreciate that. But we are in the 
business of writing law. We have gone--what do we call it? 
Let's say we write, we rescind, and we repeat. That is what we 
have done for the last almost 40 years now.
    And it seems to me that we are going to have to have some 
clarity here in the law; otherwise, we are going to continue to 
write, rescind, and repeat.
    And what my question to you and really to all of the 
witnesses and to ourselves is: What should the law say? How do 
we provide clarity so that we don't go through this unending 
process--apparently unending process?
    I don't know the answer. But it seems to me that we have 
the responsibility of answering that question, that is to 
provide the clarity in the law itself to the extent that--well, 
far more extensive than the present situation. Otherwise, it is 
going to be back and forth forever as the shifting winds of 
Congress and the Presidency happen, and it will.
    I search for that. And I really challenge myself. How would 
I write it? What would I actually put in the law so that there 
would be clarity? I understand the clarity and the necessity 
for it. I have got ponds that I know eventually drain into a 
river, and I am going: Hmm, how does this affect me? Don't know 
the answer, but we have got to search for that answer.
    And, Mr. Graves, your resolution would prevent us--would 
prevent any further action until we wrote the law.
    I yield back.
    Mr. Bost. Mr. Burlison.
    Mr. Burlison. Thank you, Mr. Chairman.
    Mr. Owen, I wanted to ask you, I heard previously you had 
mentioned that States really can't shoulder the burden of some 
of this responsibility, that only the Federal Government has 
the resources to do that.
    I was puzzled by that because that is not, from my 
experience, the case. From our State's perspective, the EPA is 
really leaning on the State to do all of the work and shoulder 
all of the burden in enforcing their regulations.
    Mr. Owen. Let me clarify the answer.
    What I am saying is it is very hard for States to do it 
alone, in the same way that, as you just mentioned, it is 
really hard for the Federal Government to do it alone.
    And the system set up by the Clean Water Act is designed to 
be a partnership within areas where there is Federal 
jurisdiction under the statute, but that there is also State 
authority.
    And I think the other point I would make is that that 
partnership has generally worked really well, where you have 
Federal authority delegated to States, States acting with 
Federal support, and all working on a joint project of trying 
to advance water quality.
    And so, the fear I was expressing is that, when the Federal 
Government pulls back, the partnership goes away. And now the 
States still have the authority to act, but that would mean, in 
some cases, enacting new legislation, staffing up the effort, 
gaining experience.
    And so, that is challenging. That is where the difficulty 
lies.
    Mr. Burlison. So, certainly you can understand that the 
water issues in the Midwest are different than the issues in 
your State of California.
    Do you feel that the Federal Government creating a one-
size-fits-all solution is appropriate, or do you believe that 
the States should have more control?
    Mr. Owen. So, I think calling it a one-size-fits-all 
solution is not quite right because there is some flexibility 
in the regulatory language that allows it to be adapted to the 
different circumstances of different places.
    That flexibility also leaves more room for interpretation, 
which is I think the fear that we are hearing from the rest of 
the panel.
    Mr. Burlison. Certainly you have heard from some of the 
testimony from the farming community of the impact that they 
have. Do you sympathize or understand or share any of those 
concerns? Have you ever been on a farm or worked on a farm, 
tried to produce food to feed anyone?
    Mr. Owen. So, I have tried to produce food. I have 
gardened. I am bad at it. So, it was not a very successful 
effort, but I have made the attempt. And I have spent time on 
farms. I have not been employed on one ever.
    So, to your question, do I sympathize? Absolutely. 
Absolutely. I think everybody on this panel would agree that 
water quality is important. I think everyone on this panel 
would agree that economic development is important. And 
everybody would agree that producing food, that producing 
housing, that all of these things really matter.
    Mr. Burlison. Thank you. Thank you, Mr. Owen.
    Mr. Hawkins, I appreciate you being here today. I wanted to 
get an idea. Whenever I was campaigning, I heard everywhere the 
impact of the supply chain on farming, the impact of energy 
costs, fertilizer costs, the impact of fuel costs.
    I think my question to you is, is this the appropriate time 
to saddle the farming community with these regulations?
    Mr. Hawkins. Well, Congressman, thank you. Thank you for 
the question.
    I would say there is never a good time to saddle 
agriculture or any sector of the economy with uncertain 
regulatory requirements.
    Congressman, as we think through this issue, as we think 
through the regulatory process alone, if a farmer is subject to 
a permit and must go through it, that is one thing. There are 
costs associated with that permit, of hiring the experts that 
are needed to help get you through the process. There are costs 
associated with mitigation. And there are costs associated with 
the time that it takes to ultimately see your project through 
fruition on the farm as a result of the permit.
    I would also say you have the uncertainty that is 
associated with compliance and the threat of potential civil or 
criminal penalties.
    Mr. Burlison. I understand the cost can be anywhere from 
$10,900 to $2.4 million.
    Mr. Hawkins. That is a lot of money, Congressman.
    Mr. Burlison. Right. The impact of a Missouri farming 
family--what are the average size of the family farms or the 
farming operations in Missouri?
    Mr. Hawkins. Yes. So, the average size farm in Missouri 
would be about 300 acres. But, again, Missouri, we kind of 
represent the diversity of American agriculture. We do 
everything but really citrus and sugar.
    Mr. Burlison. Yes.
    Mr. Hawkins. But we truly are a melting pot when it comes 
to just diversity of production.
    Mr. Burlison. So, I would imagine, I mean, that would be a 
huge impact to any family farm.
    Thank you. My time has expired.
    Mr. Duarte [presiding]. Thank you, Mr. Burlison.
    Mrs. Sykes, I will recognize you for 5 minutes.
    Mrs. Sykes. Thank you, Mr. Chair.
    Thank you to the panel for your presentations today.
    I want to bring our conversation back to water quality, 
because essentially that is what we are talking about. And I am 
going to direct this first question to you, Mr. Owen.
    We just talked a bit about an issue in my district where 
people who can access well water--I know that is not 
necessarily our jurisdiction today--but the impact that it has 
on not accessing clean, potable water and what that means to 
your life and to a community's quality of life.
    So, could you talk just a little bit or provide some 
suggestions on how we can best add to clean water protections, 
somewhat to my colleague's conversation of what specifically 
could we do? What are the specific suggestions you have for us 
as we contemplate this rule and future legislation?
    Mr. Owen. I think the first suggestion is that, in order to 
protect clean water, we have to protect our rivers, our lakes, 
our streams, but also our smaller wetlands, our smaller 
streams, even the ephemeral ones. We cannot get the clean water 
that we want without protecting that natural infrastructure.
    That is a starting point. That is a foundation. It is not a 
complete answer to the question.
    Within that protection, there are a number of things we can 
do. I mean, the reality is that a lot of the water pollution 
that we have in this country comes from agriculture. In terms 
of the density of pollution from a particular area, it is 
higher in urban areas. But we have so much agricultural 
production, that is so much of our land, that that is where a 
lot of water quality impacts come from.
    And so, we have to find ways, whether it is through the 
kind of incentive programs that were described before, through 
regulation of nonpoint source runoff, through increased State 
effort. But that is a huge--I mean, particularly for your State 
of Ohio, where that is a primary source of pollution in Lake 
Erie, that is a huge focus.
    I would say the other area where we need to do a tremendous 
amount of work is with urban stormwater because, again, that is 
a major source of pollution. It is also a potential water 
supply, especially in arid areas. And it is a challenging, 
difficult issue because it is expensive for cities to deal 
with.
    So, those are general answers. I would be happy to follow 
up with more specifics. But I think that is a starting point.
    Mrs. Sykes. Thank you, Mr. Owen.
    And I am going to direct my next set of questions to Mr. 
Hawkins.
    And I know you are getting a lot of attention today, but it 
goes to show how important agriculture is. It is the number one 
industry in Ohio, and we rely upon you, and we thank all of the 
members, all of your members of the Farm Bureau across the 
country, for what you do to feed us and allow us to live.
    But to the point of what Mr. Owen said, a lot of pollution 
is attributed to agriculture. And a couple years ago, we had 
some algal blooms in Lake Erie which prohibited access to 
drinking water, again, impacting the quality of life of people 
who rely upon the beautiful Great Lakes for drinking water.
    So, we are going to deal with the farm bill. I know that is 
not this committee, but everyone is still talking about the 
farm bill. And I am sure we are going to hear conversations 
around agriculture, runoff, what you all are or are not doing 
to help us keep our clean water clean.
    So, I am asking you, what is your understanding of the 
normal farming activities exemption to the Clean Water Act, and 
do you agree that these activities are generally exempt from 
Clean Water Act permitting regardless of their jurisdiction of 
this rule?
    Mr. Hawkins. OK. Thank you, Congresswoman. And, again, 
thank you. I appreciate Ohio Farm Bureau a great deal. They 
have been mentors to me through the years in my Farm Bureau 
career. And so, just a couple of thoughts initially.
    One, nonpoint sources are excluded, obviously, from the 
Clean Water Act. And as I think specifically to the issue that 
you raised in Ohio, I think it is a prime example of 
cooperative federalism at work when the agriculture community 
worked with the State legislature and regulators to come up 
with a solution and put tools in the toolbox for Ohio farmers 
that worked. It didn't necessitate a heavy hand out of 
Washington, DC, to solve a problem. It was Ohioans coming 
together for an Ohio-focused solution.
    And that is what I have learned from my colleagues as we 
have internal conversations within Farm Bureau, learning from 
other States about what works as we put tools in the toolbox 
for farmers.
    And I would just implore this committee--I appreciate you 
recognizing that you all are going to be involved in writing a 
farm bill this year, and there will be a lot of discussion 
about the conservation title. And I would implore you all to 
focus on working lands and make sure that farmers and ranchers 
have the tools that they need.
    Because guess what? If you make the programs workable, if 
you cut redtape, my fellow farmers and ranchers will raise 
their hand and walk through the door of their USDA office and 
say they want to put more conservation on the ground.
    So, I would encourage you, keep that in mind. Make these 
programs workable for those who are working hard to produce 
food, fiber, and fuel.
    Mr. Rouzer [presiding]. The gentlelady's time has expired.
    Mr. Collins.
    Mr. Collins. Thank you, Mr. Chairman.
    Ms. Bodine, with my Baptist upbringing, I just got to add 
an amen to that opening statement. Thank you.
    There are multiple new terms used in the Biden rule, such 
as ``regional,'' ``shallow surface,'' ``significant effects,'' 
and ``shallow aquifer management,'' that appear throughout this 
remarkably long preamble. And it is in a variety of contexts.
    Now, what do these new terms do? And do they simplify or 
clarify or expedite the WOTUS process, or do they add more 
confusion to it?
    Ms. Bodine. Thank you for that question.
    The terms, as you point out, are vague. Most of the 
explanation is in the preamble, and everything is case by case. 
It depends on the individual Corps field staff person, the 
individual EPA inspector. That is the person who gets to decide 
what the rule means.
    And the landowner is at their mercy to a great extent 
because of the fact that if there is a project that wants to go 
forward, people want clarity. They want certainty. And at some 
times, they need to actually put themselves under the 
jurisdiction of the Corps just to get a jurisdictional 
determination in a timely way. So, it gives enormous authority 
to the field staff on a case-by-case basis.
    Mr. Collins. Thank you.
    Ms. Huey, I am also a small businessman. My wife and I, 30 
years ago, we started our own business and grew it. And so, I 
know firsthand how conducting business in an environment where 
regulations change every 2 to 4 years make it hard to stay in 
business. Matter of fact, I have seen a lot of small businesses 
go out of business due to rules and regs imposed on them. 
Either that, or they have to sell out to someone else to 
continue for their employees to have a job.
    And like you, Mr. Hawkins, I love what I do. And I have 
often said out there in the past several years that my kids 
don't have the same opportunity that I had, and that is to 
start and grow a business. And the reason is, in most cases, it 
is because there is some overreach by the Federal Government, 
by some bureaucrat out there making regulations, and who, in 
most cases, doesn't have a clue what they are regulating.
    So, Ms. Huey, I would like for you, if you could, speak on 
the final rule and the uncertainty that it contains and just 
how it is impacting your members, please.
    Ms. Huey. It makes it very difficult when I have a 
homeowner call me or a potential client call me and want me to 
walk a piece of property with them that they bought to build 
their dream home, and I see water standing on the property that 
I and my colleagues don't know what to do with.
    We have to walk back and say: I don't know what I can do 
with this. We are going to have to wait. We are going to have 
to go through the testing, through the process, and see if you 
can even build on this lot. That is for my colleagues all 
across the country.
    We deal with regulations every day. Every day is a new 
challenge in our business. And you have to like challenges. We 
are not saying that we don't need regulation in our industry. 
We are just saying that we need to work together to come up 
with exactly what works for all Americans, for all properties.
    Mr. Collins. Thank you.
    Thank you, Mr. Chairman. That is all I have, and I yield 
back.
    Mr. Rouzer. Mr. Huffman is recognized for 5 minutes.
    Mr. Huffman. Thank you, Mr. Chairman.
    There has been a lot of talk about the need for certainty 
and reducing litigation. It would be easy to forget, listening 
to some of this debate, that before the Obama administration 
waded into this difficult, fraught exercise of defining the 
waters of the United States, there was incredible uncertainty. 
There was incredible conflict and litigation. That is why the 
Supreme Court waded in and confused us a little more with their 
different standards and tests.
    So, I think it is important that we remember that it wasn't 
Democratic rulemakings that created this problem with 
litigation and uncertainty. It was to some degree the lack of 
clarity and the lack of rulemakings, and to some extent, the 
inherent challenge of defining something as tricky as waters of 
the United States if we are trying to protect water quality 
throughout the United States.
    It would also be easy to forget, listening to some of this 
debate, that the Clean Water Act is about protecting clean 
water and that clean water is really, really important. It has 
been, in some cases, made into a bit of a bogeyman. It has been 
trivialized. It has been ridiculed, almost demonized by some 
terms of this debate.
    But remember how we got here. We had rivers that would 
catch fire, and we couldn't put them out, because, in many 
cases, the pollution that had been dumped right into that 
river, some of that came from tributaries upstream.
    We had Lake Erie and other water bodies that were written 
off as dead, as unable to support fish life, because of all the 
pollution. Again, not because of stuff discharged directly into 
Lake Erie, but things that were discharged further upstream 
into tributaries and other water bodies that connect.
    So, clean water matters. And this Clean Water Act is 
important. People throughout this country deserve clean water, 
and they value clean water.
    And I think they are, frankly, if they are paying 
attention, pretty alarmed when you see proposals that would 
roll back protection for 70 percent of the rivers, 50 percent 
of the wetlands that have had that protection for the last 50 
years. That is extreme. That is troubling. And so, that is an 
important part of our context here.
    Mr. Owen, I appreciate your discussion of the importance of 
protecting headwater streams in unconnected wetlands, 
intermittent, ephemeral water bodies, all of which would 
dramatically lose protection under the Trump administration's 
``dirty water rule''. And you discussed also how this 
contributes to toxic, costly algal blooms and other problems in 
downstream waters.
    I appreciate the fact that you drew our attention to the 
Clean Water Act's opening section, which states that water 
quality regulation must provide for the protection and 
propagation of fish, shellfish, and wildlife, as well as 
provide for recreation. This wasn't just about navigation. 
Navigable waters was the jurisdictional hook that got us into 
the important challenge of protecting water quality throughout 
the United States.
    So, could you talk a little bit more about why it is 
important that the Clean Water Act exists to support popular 
human activities like hunting and bird-watching, fish and 
wildlife values, and why that should matter to all of us?
    Mr. Owen. I think I would mostly say amen to the question. 
I think these things are obviously tremendously important. 
Water is--we all drink it. We all recreate with it. The public 
overwhelmingly wants stronger water quality protection.
    And, in fact, to bring this back to what we have been 
discussing before, I would highlight one other thing, which is 
that, when we talk about constructing things in places that are 
wetlands or are ephemeral streams, we are talking about 
construction in places that flood. We are talking about 
building homes in places that flood.
    And in addition to the water quality impacts of it, it is 
also a dangerous thing to do and a costly thing to do, because 
the Federal Government may ultimately be on the hook for the 
flood insurance payments.
    And so, I think it is important to keep that piece of the 
context here as well, that the Clean Water Act is not only 
protecting our water quality, it is also protecting us from 
making costly mistakes of building in places that are prone to 
flooding.
    Mr. Huffman. What about the protection of groundwater? In 
California, everybody knows we are very concerned about the 
availability of water. In some years, 40 percent of our water 
supply can come from groundwater. Entire communities have lost 
groundwater due to pollution. And that didn't come from--it did 
come from groundwater plumes, but eventually, that pollution 
traces back to surface water pollution.
    Why is it important that everyone care about groundwater 
when we talk about this issue?
    Mr. Owen. Because a lot--I see the time is almost up--
because a lot of groundwater starts as surface water. So, what 
happens at the surface gets into the ground and gets into our 
drinking water.
    Mr. Huffman. Thank you. I yield back.
    Mr. Rouzer. Mr. Van Orden, you are recognized.
    Mr. Van Orden. Thank you, Mr. Chairman.
    It was brought up during our testimony today that, 
unfortunately, some of the pollution that is in water comes 
from agriculture. I would like to remind everyone here that all 
food also comes from agriculture.
    I am not going to mince words. This bill would be more 
aptly named ``Woke us,'' as it is mostly confusing, partially 
nonsensical, not based in science, and will cause many more 
negative, unintended consequences than I believe the Biden 
administration has contemplated.
    Under this new ``Woke us'' rule, about 85 percent of the 
waterways in my congressional district will be subject to EPA 
oversight. In some places in my district, it would actually 
harm the environment, and I am going to tell you exactly why.
    Several of my farmers are pioneers in environmental 
stewardship. What they started to do is they were collecting 
the runoff from agriculture in these ponds that they dug. And 
so, what happens is the phosphates and nitrates settle to the 
bottom. Then they are able to recycle the water, and they can 
also recycle some of these nitrates and phosphates, which 
lowers your input cost, which is killing everybody. So, they 
partially recycle that, and again, it lowers the cost for 
everybody across the board.
    So, if ``Woke us'' goes into effect, these farmers will 
stop these practices, as their ponds will become navigable 
waterways and subject to draconian Federal regulations. And 
what this means is that all of these ag byproducts will 
actually enter the watersheds and wind up in the Mississippi 
River. That is the exact opposite intended consequence of this 
foolish regulation.
    We are concerned with the disappearance of small family 
farms who are just getting by due to skyrocketing costs, yet 
you appear to be advocating--this rule appears to be advocating 
for adding additional costs to their operations.
    So, Mr. Owen, you said that you have been to farms before. 
I have got boots in my office that have manure on them from a 
small family farm. And my first question to you is, when is the 
last time you stepped in manure on a small family farm?
    Mr. Owen. This isn't the last time, but even though I grew 
up in the suburbs, we were the one house in the Boston suburb 
that got regular deliveries of horse manure for my mother's 
garden.
    Mr. Van Orden. All right.
    Mr. Owen. So, I grew up not only stepping in that manure, 
but offending the entire neighborhood with the smell.
    Mr. Van Orden. Great. And how old are you now, Mr. Owen?
    Mr. Owen. What is that?
    Mr. Van Orden. How old are you now?
    Mr. Owen. I am 48 now.
    Mr. Van Orden. How old were you then?
    Mr. Owen. That was when I was a kid. More recently----
    Mr. Van Orden [interrupting]. OK. So, 30 to 40 years ago is 
the answer to that question.
    Mr. Owen. No, it is more recent than that.
    Mr. Van Orden. Mr. Owen?
    Mr. Owen. But next question.
    Mr. Van Orden. So, here is your next question. How many 
family farmers, township chairmen, and county board supervisors 
did you personally speak to about the economic effect that this 
is going to have on their villages, their townships, and their 
farms? How many did you personally speak to before you prepared 
yourself to come here to testify about the awesome economic and 
environmental effect of this foolish rule?
    Mr. Owen. In preparing this testimony, I did not speak to 
anyone.
    Mr. Van Orden. OK. That is my concern, Mr. Owen, is that we 
have a bunch of nameless bureaucrats who are trying to apply a 
4,000-mile screwdriver to fix a problem that they can't even 
see.
    So, when we have people that are deciding the fates of our 
family farmers without firsthand knowledge, they are actually 
degrading the ability of them to produce food for the world. 
And that is shameful. And we have got to stop it.
    So, I am going to encourage you and the rest of your folks 
to get out there and talk to these farmers. Go to the township 
meetings. Ask them how it is going to affect them. It is going 
to destroy family farming. And I am not willing to stand by and 
let that happen.
    With that, I yield back.
    Mr. Rouzer. The gentleman yields.
    Mr. Owen. May I respond to that, or is----
    Mr. Rouzer [interrupting]. The gentleman has yielded back.
    Mr. Owen. OK.
    Mr. Rouzer. Ms. Brownley is recognized.
    Ms. Brownley. Thank you, Mr. Chairman.
    Mr. Owen, would you like to respond to the last comment?
    Mr. Owen. I would tell you first off that I have spent, in 
multiple research projects, lots of time talking to farmers 
about the impacts of regulatory programs. I did not talk to 
them in preparing this specific testimony.
    The other thing that I would say is that I have also spent 
many years interviewing the agency staff who interview this and 
other programs. They generally are in field offices, so, they 
are closer to the areas. They typically are people who grew up 
in those specific areas.
    And for them, what they have told me is, having a sense of 
understanding of the community, being able to get out and see 
farms, or since that is not usually who they are regulating, 
see development sites, is really important to them as well.
    And so, I think it is important to give the bureaucrats 
some credit here for the efforts that they have made to try to 
understand the people that they are regulating.
    Ms. Brownley. Mr. Owen, my question to you is, you 
mentioned that the requirement to obtain a clean water permit 
does not necessarily prohibit development and that the property 
owners have use of compensatory mitigation. Could you elaborate 
on this option?
    Mr. Owen. Yes. So, if an area is declared to be 
jurisdictional, that does not mean it is off limits for 
development. The Army Corps will typically ask the landowner: 
Can you avoid development in this area? And if they can, then 
they will prefer that. And if they can minimize impacts, they 
are, again, asked to do that.
    But if neither of those things are possible and the project 
still wants to go forward, you can get a permit, and coupled 
with that permit is a requirement to purchase compensatory 
mitigation, which basically means restoring environmental 
conditions in some other time or place.
    If it is done well, it can be a win-win, because you can 
get development where you want and you can also get protection 
in places where it is desired. And, in fact, a number of 
counties in California have done proactive planning to try to 
streamline approval processes and make this possible. They are 
good examples of how that can be done well.
    One other thing I would say to that point is, in the 
written testimony there are some concerns about the cost of 
compensatory mitigation. Part of the reason for that cost is 
because the compensatory mitigation industry has had so much 
uncertainty because of uncertainty about whether regulatory 
restrictions would apply. If that industry has more stability, 
it will likely have more investment, and in the long term, that 
should bring costs down.
    Ms. Brownley. Very good.
    So, in reference to certainty, and we have talked--and 
uncertainty, as we have talked a lot about in this hearing so 
far--and Mr. Garamendi sort of alluded to this in his line of 
questioning. But if the Congressional Review Act proposed by 
the chairman passes that disapproves the waters of the United 
States rule, what would be the practical effect? And do you 
think it would repeal and create regulatory certainty or more 
uncertainty?
    Mr. Owen. The short-term effect would be probably more 
uncertainty, although I think we are even uncertain about the 
uncertainty at this point.
    Ms. Brownley. Yes.
    Mr. Owen. And the reason for that is that, right now, the 
regulatory regime that is in place because the implementation 
of the Trump rule was enjoined is very similar to what this 
particular rule would create. So, in the short term, it would 
not really change much of anything at all.
    In the long term, the Congressional Review Act prohibits a 
rule being adopted that is substantially the same, which is a 
phrase that courts really have not interpreted very much. We 
don't have much of a sense of what that means.
    So, that means the long-term consequences for future 
rulemaking and for responses to future court decisions would be 
really hard to predict. So, I don't think that is a path to 
certainty.
    Ms. Brownley. Thank you.
    And I just have a little bit of time left. But you also 
noted in your testimony that the Trump administration's 2020 
failed to use proper economic analysis. Can you elaborate on 
that a bit?
    Mr. Owen. Yes. So, to properly analyze the value of Clean 
Water Act protections, you need to look not just at the impacts 
upon regulated industries--and those exist, they are real--but 
also at the benefits that people get both through avoided costs 
of treating water, through avoided need to provide new water 
supplies, through avoided flood impacts, but also through 
things like hunting, fishing. You need to quantify those 
benefits as well and weigh them against the costs.
    And the Trump administration's approach was essentially to 
do an arm wave at the benefits and say either we can't 
calculate them or we don't think they exist. And the upshot of 
that was that you had a very, very imbalanced analysis.
    Ms. Brownley. Thank you so much.
    And, Mr. Chairman, I yield back.
    Mr. Rouzer. I thank the gentlelady.
    Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman.
    I will tell you one thing. If Congress was writing this 
legislation now the way there are folks trying to interpret--
Army Corps of Engineers, EPA--there is no chance it would pass 
Congress, certainly back in the 1970s nor now, because people 
would be calling for the heads of the Members of Congress 
voting for such a far-reaching, overreaching piece of 
legislation.
    So, here we are. Something that was passed in the 1970s 
that has been interpreted and reinterpreted more recently in 
the Obama era under WOTUS went very far-reaching to mean that 
human-built drainage ditches and agricultural irrigation 
ditches are now under the scope.
    We see areas that want to regulate water running off your 
roof into a rain barrel, saying you can't keep that rain barrel 
water without some kind of permit because it belongs to someone 
else.
    It seems the scope has expanded so much that no drop of 
water anywhere doesn't belong to the United States.
    So, let's talk about home building for just a little bit. 
And I also want to touch, too, that the Army Corps is holding 
up a project in my district for 3 years because it is about a 
half a mile from a river.
    So, hearing Mr. Owen mention that one of the test questions 
is: Can you avoid building this building, building this 
project? Can you avoid it? Well, no. I own this piece of land 
right here. Private property. I want to build my building here, 
not have somebody ask me if I can avoid building it. I need it 
to store my equipment in or build whatever it is.
    So, I want to come to Ms. Huey.
    Ms. Huey, you mentioned in your testimony, there are 
basically two tests, I think as you put it, when you go to 
build a house or housing project. One was stormwater runoff. 
What was the second one? There were two pieces in line before 
we even get to water quality.
    Ms. Huey. Oh, I am sorry. You are talking about the fill 
material?
    Mr. LaMalfa. Pardon?
    Ms. Huey. Fill material.
    Mr. LaMalfa. Is that it? OK. All right. So, there were two 
pieces you would have to certify before you can get going on a 
project there on fill material, right?
    Mr. Owen. I think it was that you were subject to 404 and 
then also stormwater controls.
    Ms. Huey. Yes. Thank you.
    Mr. LaMalfa. OK. 404. All right. Thank you for that.
    So, you have already got a big lift in order to build any 
kind of housing project with those.
    What are the timelines to get through those two types of 
permits to build housing?
    Ms. Huey. In my area in Alabama, it takes several years to 
get through those processes.
    Mr. LaMalfa. Several years?
    Ms. Huey. Yes. And then there are even more layers after 
that.
    Once the development starts, we have--in Alabama, it is the 
Alabama Department of Environmental Management that we have to 
go through, and then the municipalities that come through every 
month and make a list of things that we need to correct, from 
silt fence to, if we've got a pile of dirt that we have moved, 
that it needs to be seeded and hayed, and if it is not--if we 
don't get it taken care of in a couple of days or a week or so.
    And that is when we have three detention ponds on a piece 
of property as well. Those detention ponds, for a subdivision I 
was in about 4 or 5 years ago, let the water out in an 18-inch 
pipe. And now in a development that I am somewhat involved in, 
we have to hold the water on the property for 24 hours, 
stormwater, before it is released.
    Mr. LaMalfa. And so, what is the process of having to build 
the retaining ponds? Do you have to get permits for that? 
Because I know farmers and ranchers do, and sometimes they 
can't obtain those because you are somehow changing the 
watershed. How is that for you?
    Ms. Huey. Right. We used to fill out the forms to do that. 
Now we have to hire an environmental consultant, and that could 
be $5,000 to $10,000. The detention pond itself costs about 
$100,000 on the project that I am working on now.
    Mr. LaMalfa. To make a retention pond in order to do what 
they want to do so no silt gets away?
    Ms. Huey. Yes, sir.
    Mr. LaMalfa. Because this is primarily about silt. When we 
are talking about pollutants, you seem to have plenty of 
regulations on how to use ag chemicals, farm chemicals, other 
things that are in a factory setting that are--someone is 
regulating all of that effluent of what is coming off there.
    So, when I hear talk of that 50 percent of it is 
agriculture, what we are really talking about is silt. And so, 
if you go to any river upstream of agriculture after a heavy 
amount of rain, you see an awful lot of brown water coming down 
the rivers that isn't the fault of a farmer somewhere.
    And also, you see that up in my district in northern 
California, if they are successful with their extremism of 
tearing out some hydroelectric dams we need for electricity, we 
are going to release at least 20 million cubic yards of silt 
down the river.
    Now, silt is bad for gold mining and all that sort of 
thing, bad for fish or turbidity, except we had a high-ranking 
official at a recent hearing say, well, the river is very 
starved for silt.
    So, I am wondering what the hell anybody is supposed to do, 
how any farmer, how any homeowner is supposed to figure out how 
to navigate this when it takes so long to get a permit to build 
a pond or anything else. Three years. Three years for this 
farmer in my district who wanted to build a building that he 
can't avoid building.
    I yield back, Mr. Chairman.
    Mr. Rouzer. The gentleman's time has expired.
    Mr. Stanton, you are recognized.
    Mr. Stanton. Thank you very much, Mr. Chairman.
    Water is a precious resource. It must be protected. In no 
place does water matter more than in my home State of Arizona; 
3.2 million people in Arizona receive their drinking water from 
systems that rely at least in part on intermittent, ephemeral, 
or headwater streams.
    As we grapple with the impacts of climate change and the 
worst drought in 1,200 years, safeguarding these waters is top 
of mind for many Arizonans.
    Across the country, water bodies vary from State and region 
to region, and so, how waters of the United States is defined 
to account for these differences is very, very important.
    In Arizona, more than 90 percent of our stream-miles are 
ephemeral, meaning they only flow during heavy rains. While 
these streams flow for only a brief period of time, they play a 
very key role in the arid Southwest, protecting water quality, 
recharging our groundwater, and carrying floodwaters and 
sediment flows to protect property.
    Mr. Owen, how does the rule account for regional 
differences in areas like in the arid Southwest that have high 
concentrations of ephemeral streams?
    Mr. Owen. I would say the most important way it accounts 
for them is by extending protection to not all of those 
ephemeral streams, but the streams that have significant 
connections to water quality in larger waterways. And in a 
landscape like Arizona, that is going to be many of those 
waterways.
    Mr. Stanton. How does the treatment of ephemeral streams 
under this rule compare to those issued during the Obama and 
Trump administrations?
    Mr. Owen. Let me step back a little bit further.
    I think you often hear that we have been having dueling 
rulemakings and huge shifts. I disagree with that perspective 
to some degree. I think that the Trump administration rule was 
in fact a massive shift.
    Other than that, we have had a lot of continuity in terms 
of the scope of jurisdiction, really dating back, not just to 
1986, but to 1975.
    So, the Biden administration rule is, I think, not that 
different from what was done under the Obama administration 
before or after 2015, but it is also very similar to what was 
done under the W. Bush administration, the Reagan 
administration, the first Bush administration, and the Carter 
administration, and towards the end of the Ford administration. 
So, there is a lot of continuity there. And the Trump rule, for 
a couple years, was the outlier.
    Mr. Stanton. Thank you.
    I have a question for Mr. Williams.
    As you heard from previous testimony by Mr. Owen, these 
ephemeral streams were not protected under the previous rule 
advanced by the Trump administration, and there are challenges 
in some States to adding their own protections.
    So, where do you think we can find common ground on this 
issue to ensure your industry has clarity and certainty for the 
work you do, yet broader protections for these important 
streams?
    Mr. Williams. We are certainly in favor of broader clarity. 
We have been searching for that. I have been working in the 
wetlands industry for 23 years now, and I have been out in the 
field with some of our project managers. I have had great 
experience in that, and I have a hard time deciding what is 
ephemeral and what is relatively permanent water. We have been 
looking for kind of a bright line in the sand of what that 
could be.
    Our industry is in favor of clean water. We need the 
aggregates products to clean water. Sand is part of 
biofiltration and water treatment. The ephemeral channels are a 
pollution issue, whether nutrients get into that channel or 
not, and this WOTUS rule is more of a construction issue. It 
is, where are we allowed to excavate or fill ephemeral 
channels? And that is more construction than it is any 
pollutant issue that we are concerned of.
    Mr. Stanton. The same question for Mr. Owen.
    Common ground. Ensuring the industry has clarity and 
certainty, yet provide for broader protections for streams as I 
have described in Arizona.
    Mr. Owen. So, I think the honest answer is, this is going 
to be hard. And it is going to be hard because, no matter what 
standard we adopt--and this was true of the Trump rule as well 
as the more recent rule--drawing lines between water and land 
can be tricky where you have seasonal features. And it is 
really particularly hard in a place like Arizona where those 
features can go from dry for very long periods of time to 
torrential amounts of water moving through.
    And so, I think we all agree that certainty would be really 
desirable. I think in this particular setting, the only ways to 
get the level of certainty that industry is hoping for--and 
reasonably hoping for--but the only ways to get that would be 
to say, essentially, everything is jurisdictional or nothing 
is.
    In between, you are going to have hard, long-drawn 
problems. And I think the best way to approach those is to say: 
Well, what are we trying to accomplish here? We are trying to 
protect water quality and honor the text of the statute. And if 
that does not produce perfect certainty or even high levels of 
certainty, that may just be something we have to live with, 
unfortunately.
    Mr. Stanton. Thank you. I will submit my other questions in 
writing. I will yield back.
    Mr. Rouzer. The gentleman yields back.
    Mr. Duarte.
    Mr. Duarte. Hello, and thank you.
    I am a farmer. We talked a lot about case-by-case analysis 
of Clean Water Act delineations, determinations. This is one 
time I am very thankful to be the presenter right before lunch, 
because we all should look at my case very acutely and reflect 
upon our food system here in America.
    I planted wheat in a wheat field in 2011 that had been 
planted to wheat many, many times before and had wheat base 
acreage by the FSA determined across the entire property, 450 
acres. Across the property were several streams that we did not 
farm for practical reasons as well as--just for practical 
reasons alone, you don't farm streams. You can't get crop out 
of them.
    But it also had vernal pools, the largest of which wasn't 
an acre, the smallest of which was 16 square feet. All of them 
were determined to have been jurisdictional wetlands under 
WOTUS. These had all been farmed through the section 404 permit 
process. The compromise made was clearly stated that plowing 
shall never be a discharge, and soil shall never be a 
pollutant.
    But nonetheless, my family and I were prosecuted robustly 
by the Army Corps of Engineers and the Department of Justice. 
The American Farm Bureau literally put up the Duarte defense 
account. I believe I recall meeting Ms. Bodine somewhere in the 
process here in the Capitol. And it became very much a flash 
point for American farmers and Clean Water Act jurisdictions.
    At the end of the day, having tilled 4 to 7 inches deep, 
wetlands, features as small as 16 square feet, no larger than 
an acre, that had been planted many times before, I had the 
Department of Justice threatening me and suggesting to a judge, 
Federal judge, that my family be fined $28 to $40 million in 
penalties and restoration and mitigation costs.
    The Obama rule, when it came out, the Farm Bureau took a 
look at it and started analyzing it and mapping it nationwide. 
Some States were 95 percent jurisdictional wetlands of their 
total surface area under the Obama WOTUS. Now we are talking 
about case-by-case analysis by field agents.
    Well, Mr. Hawkins mentioned that he works for the FSA, the 
USDA, the NRCS, many local agencies that are fully staffed 
within his county to help guide and comply with environmental 
and farming regulations as well as improve practices and 
enhance conservation on his farm and throughout his county. 
Throughout Missouri, for that matter.
    In my case--we mentioned, Mr. Owen, your vision of an Army 
Corps of Engineers local field agent, having grown up in the 
area and being familiar with what was going on.
    Well, my field agent grew up in southern California. He had 
a five-county territory that he was set to serve. He thought I 
was tilling the ground 30 inches deep, by his own deposition. 
That turned out to be in fact 4 to 7 inches deep. When I asked 
him to come to the field and take a look, he didn't have time 
and didn't respond.
    When they sent me a cease and desist order the following 
February, we requested a hearing and were kicked up to 
enforcement. We then went to the Pacific Legal Foundation, who 
saw the cease and desist order as a fairly dire offense to our 
Fifth Amendment due process rights, since we simply wanted to 
harvest our wheat and couldn't get direction as to whether that 
would be permitted or not under the cease and desist order, and 
we were supported in the Federal court until a retaliatory case 
was filed against us for destruction of wetlands.
    So, I recite that, and I just want to make sure that we are 
on record that this is anything but a small nuisance or a small 
threat to American farmers.
    Mr. Hawkins, I will yield back to you for what little 
balance of time I have left and invite you to give comments. If 
you don't, then Ms. Bodine may.
    Mr. Hawkins. Well, Congressman, thank you for your story, 
your leadership through the years, your example, that, 
unfortunately, is an illustration of what we have seen across 
the country, including the example I shared earlier.
    Right now we have a group of farmers who are working and 
have been working for almost 20 years in Missouri to save soil 
from being sloughed off along their creeks. They truly just 
want to save soil and improve water quality.
    We are undergoing a pilot project now and the regulatory 
officials say it may by 2025 before they can reach a decision 
on how to proceed with said pilot project.
    Meanwhile, we are losing soil, and farmers just want to use 
rock to secure those banks and use a commonsense, affordable 
solution that they believe should be workable. That is just 
another example.
    And I guess to your point, Congressman, I would just say, 
what you described illustrates and begs the question for those 
who are going to follow us of whether they want to come home to 
the farm or what you have experienced may be the deciding 
factor for mom and dad, or grandma and grandpa to decide to 
exit the business altogether.
    Mr. Duarte. Thank you.
    Mr. Rouzer. The gentleman's time has expired.
    The gentleman, Mr. Carter, is recognized.
    Mr. Carter of Louisiana. Thank you very much.
    Mr. Owen, in Louisiana one of the biggest challenges we 
face is in our coastal restoration. Our State has the highest 
rate of wetland loss in the country, with the State accounting 
for nearly 80 percent of the Nation's total coastal wetland 
loss.
    To that end, officials across the State are working with 
stakeholders and Federal agencies to consider diversion 
projects that may help restore our coasts.
    The problem is that the seafood industry says that these 
projects will hurt the fish and wildlife and the base of the 
Mississippi Delta.
    What steps might you recommend to be considered when 
weighing the needs of our coast and our bustling fishing 
industry?
    Mr. Owen. So, I don't want to get too deep into the weeds 
because the answers to any question like this are going to be 
specific to a particular landscape. But based on what I know of 
Louisiana, I would suggest a couple of things.
    First, I would suggest that Louisiana is an excellent case 
study in the importance of the subject we are talking about 
today. And that is both because of the amount of pollution that 
comes down the Mississippi River to Louisiana from other 
States, much of which could be contained more effectively with 
better protection of source water.
    So, returning to our theme today, I think Louisiana has 
suffered more than probably any other State from the Clean 
Water Act not going as far as it needs to, not protecting as 
much.
    The second piece is on your specific question of how to 
balance the needs of the shrimping industry and the fishing 
industry with the desire to restore wetlands.
    Again, to the extent that you can limit other strains on 
those wetlands, which could include things like oil and gas 
activities that are affecting those wetlands, causing dredge 
and fill, again section 404 of the Clean Water Act provides a 
protective mechanism.
    That doesn't get at the heart of your question, which is: 
How do you balance restoration with the needs of the fishing 
communities? And the most specific answer I think is that I 
think you try to find common ground, reduce strains that affect 
both, and then try to do what you can to balance.
    Mr. Carter of Louisiana. So, you mean you don't have a 
magic wand for it?
    Mr. Owen. I do not have a magic wand for you, no.
    Mr. Carter of Louisiana. You don't have a magic wand. I 
didn't think you would.
    Do you see the WOTUS rules as helping facilitate to trend 
our State action and protect our water bodies?
    Mr. Owen. Yes, absolutely, because protecting wetlands from 
fill is very important, especially to a place like Louisiana 
where the wetlands are so important to the ecology. And then 
again also because this gives you protection that you cannot 
provide on your own from pollution issues coming at you from 
upstream States.
    Mr. Carter of Louisiana. Critically important.
    Mr. Hawkins, as the existential threat of climate change 
grows, one of the results is increased risk of flooding. Baton 
Rouge, in my district, suffered one of the worst floods in 
history in 2016. The community was devastated and needed help 
in rebuilding.
    Unfortunately, instead of bringing peace, the National 
Flood Insurance Program has only served to keep too many of my 
constituents up at night worrying.
    As a member of the Farm Bureau, would you please explain 
how the NFIP has hurt your industry?
    Mr. Hawkins. Well, thank you for the question, Congressman. 
And honestly, to do it justice, I will supply a response in 
writing if you will so that maybe we can get into those issues.
    But I would just say, historically, Missouri farmers, 
ranchers, landowners, certainly we sympathize and empathize 
with our fellow farmers, ranchers, and the residents of 
Louisiana.
    We experience flooding along the Missouri and Mississippi 
Rivers it seems like every few years. And so, certainly floods 
present not just challenges at the time but ongoing challenges 
from a recovery standpoint, particularly for us in agriculture 
when we repair levees and try to restore farmland to its pre-
flood condition.
    So, the detailed response we will get back to you with you 
and your staff. Thank you.
    Mr. Carter of Louisiana. Thank you very much.
    And, Mr. Owen, could you likewise give a detailed response 
to the question that I referred to you as well?
    Mr. Owen. Yes, but likewise I would also prefer to do so in 
writing rather than spontaneously.
    Mr. Carter of Louisiana. That is what I was referring to, 
would you likewise do it in writing?
    I yield back. Thank you.
    Mr. Rouzer. The gentlemen yields back.
    I now recognize Mr. Owens for 5 minutes.
    Representative Owens of Utah. Thank you, Mr. Chair. I would 
like to yield my time to Mr. Duarte.
    Mr. Duarte. Thank you, Congressman.
    So, another topic. The Army Corps of Engineers in my 
district, Merced County is included, just had a river levee 
break and flood out a grammar school, an elementary school, in 
a town of many farm workers and lower income residents for the 
second time in 5 years.
    Mr. Hawkins, is the Army Corps of Engineers, in your 
opinion, competent in their primary responsibilities of flood 
control, levee maintenance? And are they prepared and staffed 
to take on the additional responsibilities of regulating every 
farm in America down to its last mud puddle or, in your case, 
riprap installation along a drainage?
    Mr. Hawkins. Congressman, thank you for the question.
    I would say within Missouri, we have had a longstanding, 
let's say, open conversation with the Army Corps of Engineers, 
from the local issue I raised about just the movement of gravel 
to secure and slow soil erosion to how the Missouri River is 
managed.
    Unfortunately, with what we have seen in Missouri--and 
Chairman Graves knows this all too well--we have seen the 
Endangered Species Act essentially used as the trump card to 
help dictate to the Army Corps of Engineers its management 
decisions for systems like the Missouri River.
    So, that has long been the frustration for our farmers and 
landowners, is that they feel like the ESA is used as the trump 
card and the species are put above people.
    Mr. Duarte. Thank you very much.
    We had the exact same situation. We had rivers and ditches 
that needed to be drained. The irrigation districts locally 
were very willing to put the resources into providing the 
backhoe and the excavator and draining them. The Army Corps 
couldn't issue a permit because Fish and Wildlife wouldn't 
permit the permit. It went back and forth for years.
    Meanwhile, these families are flooded, they are throwing 
their couches, their belongings, their clothing into dumpsters 
parked along the street, they are being hauled away to the city 
dump. FEMA is out there making very meager offerings of support 
to help these families reestablish and balance their books and 
get on with their lives.
    They will be stripping their drywall, their carpets, and 
rebuilding significant amounts of their houses simply because 
Fish and Wildlife and the Army Corps of Engineers couldn't get 
it together to perform their core responsibilities and 
functions.
    So, thank you. There is more similar than different.
    Ms. Bodine, I know you have been at these types of issues 
for quite a while. We are sitting here on the precipice of not 
only a Supreme Court WOTUS decision coming down that should 
give us clarity on what is the significant nexus that has been, 
in my opinion, manipulated by the agencies, but also Chevron 
deference cases coming down this year.
    And I would like you to walk us through what we can expect 
and how some clarity may come in this year's Supreme Court 
sessions.
    Ms. Bodine. Thank you, Congressman.
    So, I actually reread the oral argument from the second 
case, I think, yesterday. The issue presented to the Court was 
whether or not there was a significant nexus to a stream that 
was actually north of the Sacketts' property, in fact, across 
the road from the Sacketts' property.
    Mr. Duarte. It was an adjacency issue, but yes.
    Ms. Bodine. But it was adjacent not to the lake but to a 
stream, which was actually a ditch that flowed to a stream.
    Mr. Duarte. Yes.
    Ms. Bodine. But in that case the Justices were troubled, 
and this includes Justice Sotomayor and Justice Kagan, by the 
``significant nexus'' test.
    The Deputy Solicitor General presented an argument that the 
``significant nexus'' test was really about hydrology, which is 
very disingenuous because, as I spoke earlier and in my written 
testimony, it is much, much broader than that, includes these 
biological connections.
    So, I actually would suggest and perhaps anticipate that 
the Justices will not uphold a ``significant nexus'' test. The 
question then is what else, and I think that was questions 
other people have raised. And that I don't know. But I thought 
that they were deeply troubled by the ``significant nexus'' 
test in that case.
    Mr. Duarte. So, in this window of time when we have a new 
rule put before us that may not be supported by the Supreme 
Court, the most efficient thing right now would be to exercise 
our responsibilities under the Congressional Review Act, set 
this aside, and wait for clarity to come down from the Supreme 
Court.
    I also would like to ask, and maybe in a future session I 
will, can we make a deal anymore? In 1972, we sat down with the 
agencies on the other side of the aisle, and we created the 
Clean Water Act. And we have serious limitations on what those 
authorities were that have been greatly eroded by the agencies. 
Will we be able to solve the next problem?
    Mr. Rouzer. The gentleman's time has expired.
    Mr. Williams is recognized.
    Representative Williams of New York. Thank you, Mr. 
Chairman.
    I am just going to rapid fire a few questions and comments. 
And if you could keep your answers brief, it will make sense, I 
hope.
    Mr. Hawkins, my wife and I also started a farm. We are 
members of the New York Farm Bureau. And we live in a beautiful 
place that has Skaneateles Lake, one of the cleanest lakes in 
the world. In fact, it provides the drinking water for the city 
of Syracuse untreated, and it is one of the few in our country 
to do so.
    It is surrounded by farms and it is surrounded by homes. 
And the Farm Bureau in our State has been critical to working 
with farmers to implement those things, to keep that water 
pure, and it is a great success story. I know those farmers; I 
have toured their farms. I have seen the investment that they 
have labored under.
    I just want to move on, though, to Mr. Williams, no 
relation.
    You are familiar with the TCLP test? And in a very brief 
way, can you describe how you use TCLP in your mines?
    Mr. Williams. A TCLP is a toxic characteristic. So, soils 
and other potentially hazardous materials are analyzed to see 
if they have things like mercury or arsenic or if they have 
cyanide or if they are going to affect groundwater in a long-
term situation.
    Representative Williams of New York. Right. Passing TCLP is 
one of the key features of being able to release water back 
into the environment or if it has to undergo further treatment.
    I spent a lot of time around acid mine drainage in the 
mining industry looking at novel new technologies to treat that 
water. And so, that is why I know about TCLP. But thank you for 
that explanation, because it is really important.
    And, Ms. Bodine, you are an expert regulator and have spent 
a career in regulating issues. Based on the testimony today and 
of course of your own study and understanding, are you 
concerned that the proposed wording of this rule would open the 
way for very selective prosecution, for great discretion to be 
applied by EPA Administrators on who and when and what to 
prosecute? Because, as many of you, in fact all of have you 
testified, there is a great deal of uncertainty and vagueness 
in the language of the law.
    Are you concerned that this rule could open up that kind of 
prosecution?
    Ms. Bodine. Yes, I am, because it is a case-by-case 
determination.
    Representative Williams of New York. That is right.
    Ms. Bodine. I would point out that the GAO looked at this 
issue back in 2004 and found out that there were just vastly 
inconsistent interpretations of what was Clean Water Act 
jurisdiction by different Corps districts across the country.
    The examples I put in my testimony, which included 
Congressman Duarte's experience, also showed how individual 
field agents can make decisions that would be considered very 
extreme, but it is difficult for the landowner to push back.
    Representative Williams of New York. Thank you.
    Mr. Owen, one question for you.
    Have you ever read ``The Gulag Archipelago''? Are you 
familiar with that work?
    Mr. Owen. I have not read it.
    Representative Williams of New York. I recommend it to you. 
It is an excellent work. I am just going to read a few quotes 
and then I will conclude my time here.
    ``Nothing is easier than stamping your foot and shouting: 
`That's mine!' It is immeasurably harder to proclaim: `You may 
live as you please.' '' I think that echoes, really, much of 
the testimony here.
    It goes on to say, ``Unlimited power in the hands of 
limited people always leads to cruelty.'' And I think if you 
listen to the farmers and builders and even the mines, you will 
hear that concern.
    The last quote I will share with you is that, ``You only 
have power over people as long as you don't take everything 
away from them. But when you've robbed a man of everything, 
he's no longer in your power--he's free again.''
    And I share that with you because I will close with a quote 
often attributed to Joseph Stalin's head of secret police. 
``Show me the man and I'll show you the crime.'' And I believe 
that is what this rule leads to in the hands of the EPA 
regulators.
    I yield back, sir.
    Mr. Rouzer. The gentleman's time has expired.
    Mr. Massie is recognized.
    Mr. Massie. I thank Mr. Rouzer for yielding me 5 minutes.
    Ms. Bodine, in Kentucky when we build ponds on our farms, 
there is this miraculous thing that always happens. You can go 
500 feet up on top of your hill and dig a pond and within a few 
months there will be frogs in it, there will be snapping 
turtles. And these snapping turtles ostensibly should be 500 
feet lower. We know frogs can climb.
    And then within a year or two, even though you have not 
stocked the pond, you end up with fish in it. It is sort of a 
miracle of life, and it is one of the reasons I would say 
farmers are the greenest people on the planet, because we love 
building ponds.
    Can you describe--I was actually surprised, but it does 
feel like ``Groundhog Day,'' I think we were here 8 years ago 
or 10 years ago with the WOTUS ruling that expanded things, 
that now there is another attempt to expand. But can you talk 
about this effort to increase the jurisdiction of the Federal 
Government into isolated waters and how they are using the life 
that just generates in these ponds as a nexus?
    Ms. Bodine. Yes, thank you. And that is the ``significant 
nexus'' test.
    As I pointed out earlier, the Supreme Court in 2001 called 
into question whether there was jurisdiction over isolated 
waters. And since then neither EPA or the Corps have tried to 
regulate them.
    This rule tries to reinvigorate that authority, using a 
``significant nexus'' test which isn't just water pollution, 
water quality, it is not even just water, it is literally 
moving biota, whether it is larva or plants, from one location, 
like your pond, to another, by an animal, and that that is 
enough of a nexus to bring a pond into jurisdiction--if it is 
not exempt.
    Now, there is an exemption for farm ponds built wholly in 
uplands, but it would be burden on you to show what was there 
before you built your pond. And, again, having to meet that 
burden would be quite difficult.
    Mr. Massie. Besides fish and frogs, we always get cattails, 
and we are not always happy about that.
    But life just spreads, like you said. And I think it would 
be dangerous to put it on the burden of the landowner to say 
that he had a farming nexus to avoid this wildlife nexus that 
the Federal Government seems to be trying to create here.
    I appreciate you flagging that for us.
    Ms. Huey, I am particularly taken by your testimony because 
I am in a growing district, there is a lot of need for housing, 
particularly affordable housing for people that work. For 
instance, in our Amazon facility, we have an Amazon hub in our 
district, and the homebuilders, there is literally nowhere they 
could put 20 houses together.
    Now, you might be able to go find a place where you could 
put one or two houses and not run afoul of some Federal nexus, 
but there is almost nowhere left in northern Kentucky where you 
could put 20 houses without getting into this issue.
    Can you talk about--my homebuilders right now are facing 
inflation, supply chain issues, and higher interest rates, and 
that all goes on the homeowner, whether it is a first home for 
somebody who is just trying to get their family started or 
whether it is low- or moderate-income housing, multifamily 
dwellings.
    Can you talk about how these regulations add to the cost of 
that type of housing?
    Ms. Huey. Certainly I can. And I think you named everything 
except workforce. We have workforce challenges.
    Mr. Massie. We are working on that. We have got an 
internship program.
    Ms. Huey. That is wonderful.
    So, yes, we are dealing with all that. And it costs more 
money because it takes more time to build houses. All the 
regulations and the increases during COVID that we experienced, 
with fuel surcharges and just the increase in material----
    Mr. Massie [interrupting]. How long can it add to a 
project?
    Ms. Huey. For me, a custom home that I build, it is about 
3,200, 3,500 square feet, it would take about 8 months. It is 
taking me almost 12 months now. For some first-time home 
buyers, the builder in my area, they could build a house in 4 
months. It is taking him 8 months.
    So, the process takes longer. There is more interest we 
have to pay. People have to wait longer, so, they are paying 
more rent in their apartments before they can move in if they 
are first-time home buyers. And it is just a domino effect all 
across the board.
    Mr. Massie. One of the issues we run up against, because I 
am in a tristate area, is disparate decisions depending on 
which Corps you are in or division or which State.
    Do you see that as a problem across the Nation, is 
disparate application of these laws?
    Ms. Huey. Are you talking about with the Corps? Is that 
what you said?
    Mr. Massie. Well, the WOTUS ruling and the regulations that 
trickle from that.
    Can she answer? Mr. Chairman, can she answer the question?
    Mr. Rouzer. The gentleman's time has expired.
    Mr. Massie. Wow, he is quick with the gavel. But I will 
take a Republican chairman over a Democratic chairman.
    Mr. Rouzer. I treat everybody fairly.
    Mr. Ezell.
    Mr. Ezell. Thank you very much, Mr. Chairman.
    We have heard today how constantly changing, overreaching 
regulations confuse hard-working farmers and landowners. It is 
also clear that a lack of certainty leads to higher costs and 
delays for essential infrastructure projects.
    Mr. Williams, the aggregates industry plays an important 
role in building our Nation's infrastructure. What happens to 
mitigation cost when your business is forced to work with a new 
jurisdictional definition?
    Mr. Williams. When the jurisdictional definition is 
expanded and we have to find other ways to mitigate for a 
project, that increases cost and time delays. It is a 
multifaceted answer.
    If mitigation credits are available nearby, we can purchase 
those credits. But frequently there are no longer mitigation 
credits in that area, so then we have to come up with other 
ways to mitigate for the project.
    We have one project in South Carolina where we had to build 
our own wetlands there because there were not mitigation 
projects available.
    Another cause could be that the cost just becomes 
astronomical. We had a particular project that we looked at 
under the 2020 rule that had about 1,800 feet of jurisdiction 
and maybe 2 acres of wetlands under that rule. But under an 
expanded rule, it became almost 8,000 feet of streams and about 
8 acres of wetlands because of the ditches present on a former 
agricultural project. That made the mitigation costs rise from 
$780,000 for the first definition to $3.8 million for the 
second definition. So, that is over four times more or over $3 
million more just for that one project.
    Mr. Ezell. Thank you.
    I would also like to discuss a key issue before the Supreme 
Court, the legality of the ``significant nexus'' test.
    How does the ``significant nexus'' test expand Federal 
jurisdiction over waters? What will happen if the Supreme Court 
limits the scope of significant nexus?
    Mr. Williams. When we look at significant nexus, we have a 
couple of different definitions already when we were using that 
definition 10 years ago and actually under the regime that we 
are in now, because the vacated rule from Trump. The 
significant nexus said if it affected the physical, chemical, 
and biological integrity of the jurisdictional water.
    And they have now inserted the word ``or'' instead of the 
word ``and''. And so, we have to, if it affects any of those 
certain things, we have had a number of moments of testimony 
today about how ludicrous that might be for bird feathers or 
other things that have been discussed.
    So, it has a significant effect on what could be 
jurisdictional and how that affects our projects.
    Mr. Ezell. Thank you.
    Ms. Huey, you mentioned the same ``significant nexus'' test 
in your testimony as well. How would the current rule affect 
real estate development?
    Ms. Huey. It would dramatically affect home building in our 
industry.
    For the ``significant nexus'' test, I use a simple example 
or I thought of a simple example yesterday. I have got a 
customer who wanted me to put a fence up for them, they've got 
a puppy and wanted to put a fence up.
    They have a ditch beside their house, only gets water when 
it rains. Do we have to go through the ``significant nexus'' 
test just to put a fence up? That is what we are looking at 
with the test.
    Mr. Ezell. Thank you very much.
    Mr. Chairman, I yield back.
    Mr. Rouzer. The gentleman yields back.
    Mrs. Gonzalez-Colon.
    Mrs. Gonzalez-Colon. Thank you, Mr. Chairman.
    I think all of us are aware, share an awareness of the 
importance of protecting our water resources and making sure 
that we can have the necessary economic activity without 
causing harm to waters that everybody depends on. I am coming 
from an island, I can tell you about that.
    At the same time, many of us are aware of the challenges 
that we are facing when needing to engage in, for example, 
recovery of infrastructure and agriculture production after 
disasters. That is my own experience, when compliance with 
regulations becomes confusing due to the changes in guidance.
    This is why it is important that the rules about protecting 
waters are stable and consistent and, of course, clearly 
focused on the congressional intent of the Clean Water Act.
    For my district in Puerto Rico, as an island beset by 
tropical storms, it is a constant struggle to make sure that 
the necessary work for prevention and mitigation of floods or 
shore erosion or for even protection of public-private 
properties near bodies of water and for protection of the 
drinking water supplies, once approved, can begin and be 
completed as planned promptly. And this will change all of 
that.
    And we have received large amounts of Federal funding for 
mitigation, but very often we find that the local entities, who 
are a critical part of this effort, like the municipalities, 
State agencies, the nonprofit organizations, cannot start to do 
the work until permits and authorizations are processed and for 
which requirements sometimes aren't clear or change from one 
administration to the other one while the work is halfway 
through.
    And that is our current situation. We have got thousands of 
projects, federally funded projects. And this is the case of 
Puerto Rico. But the same thing happens in natural disasters 
all across the Nation. How is this new ruling going to affect 
the cost of all those Federal projects, the permitting process 
as well?
    So, I think consistency and clarity is critical to make 
sure they are implemented well and achieve the intent of the 
legislator. And in this case, the waters of the United States 
rules, Congress delegated that power in the Army Corps of 
Engineers and EPA.
    The two agencies are recognized for their high technical 
expertise. But even they have to face changes in direction that 
can make their own work even harder.
    So, in that sense, when I am hearing all the different 
stakeholders and how this affects them, and particularly in the 
agriculture sector and the homebuilder sector, this is a very 
important one for me since all of our States and Territories 
find themselves needing more affordable housing.
    My question will be: How will this affect directly all the 
Federal reconstruction projects that are underway right now?
    Ms. Huey. Thank you for the question, Congresswoman.
    I had the opportunity to visit Puerto Rico, beautiful 
Puerto Rico twice this past year, and I had meetings with the 
homebuilders there.
    There are extreme challenges with rebuilding. And having to 
do the ``significant nexus'' test and everything, it just 
delays the process and makes it a lot more expensive.
    There is no affordable housing right now, in my opinion, 
with all the regulations that are coming down. I want 
affordable housing for everyone. I want home ownership, the 
American Dream, for everyone. But the affordability is a crisis 
in America.
    Mrs. Gonzalez-Colon. You visited the island, so, you know 
how instability in this rulemaking will impede the development 
or redevelopment of safe, affordable housing. In our case, we 
don't have any more space to build.
    And when I saw Ms. Parker Bodine, you included in your 
presentation a map of locations of karst geology, and almost 
all Florida, large parts of Missouri and Texas, are included 
there.
    And what does that mean for farm ponds, isolated wetlands 
that are in those areas, because we do have the same situation 
in Puerto Rico, and we cannot move them.
    So, what is going to be the effect of this ruling in those 
karst geology areas? Ms. Bodine?
    Ms. Bodine. I am sorry? What will be the effect on . . . ?
    Mrs. Gonzalez-Colon. On all areas----
    Ms. Bodine [interrupting]. In the karst areas, yes.
    Mrs. Gonzalez-Colon [continuing]. For farm ponds.
    Ms. Bodine. So, the new rule identifies karst, which karst 
geology would mean that there is fractured bedrock and water 
flowing through it, that is a basis for creating jurisdiction, 
calling something adjacent. So, it would vastly increase the 
waters that would be regulated.
    Mrs. Gonzalez-Colon. Thank you. I yield back.
    Mr. Rouzer. The gentlelady's time has expired.
    I will note that any question that you want to provide 
additional answers to or supplement your answer to, the record 
will be open, and you can do that at that time. I know 5 
minutes is a short period with a complicated topic such as 
this, and so, I just want to make sure you are aware. Any 
question that was asked of you where you want to add to your 
answer, you certainly have that opportunity to do so in 
writing.
    Seeing no other Member that has not already been 
recognized, this concludes our hearing for today. I would like 
to thank each of the witnesses for your testimony--very good 
testimony, I might add.
    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.
    Without objection, so ordered.
    I also ask unanimous consent that the record remain open 
for 15 days for any additional comments and information 
submitted by Members or witnesses to be included in the record 
of today's hearing.
    Without objection, so ordered.
    The subcommittee stands adjourned.
    [Whereupon, at 12:33 p.m., the subcommittee was adjourned.]

                      Submissions for the Record

                              ----------                              


  Letter of February 17, 2023, to Hon. Sam Graves, Chairman, and Hon. 
     Rick Larsen, Ranking Member, Committee on Transportation and 
  Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F. 
    Napolitano, Ranking Member, Subcommittee on Water Resources and 
    Environment, from the American Sportfishing Association et al., 
          Submitted for the Record by Hon. Grace F. Napolitano
                                                 February 17, 2023.
The Honorable Sam Graves,
Chair,
House Transportation and Infrastructure Committee, 2165 Rayburn House 
        Office Building, Washington, DC 20515-6256.
The Honorable David Rouzer,
Chair,
House Transportation and Infrastructure Committee, Subcommittee on 
        Water Resources and Environment, H2-585 Ford House Office 
        Building, Washington, DC 20515-6256.
The Honorable Rick Larsen,
Ranking Member,
House Transportation and Infrastructure Committee, 2165 Rayburn House 
        Office Building, Washington, DC 20515-6256.
The Honorable Grace F. Napolitano,
Ranking Member,
House Transportation and Infrastructure Committee, Subcommittee on 
        Water Resources and Environment, H2-585 Ford House Office 
        Building, Washington, DC 20515-6256.

Re:  Letter for the Record, House Subcommittee on Water Resources and 
Environment, February 8, 2023 Hearing, ``Stakeholder Perspectives on 
the Impacts of the Biden Administration's Water of the United States 
(WOTUS) Rule.''

    Chairman Graves, Ranking Member Larsen, Subcommittee Chairman 
Rouzer, and Subcommittee Ranking Member Napolitano:

    The below-signed members of the hunting and fishing community 
submit this letter for the record in connection with your hearing on 
stakeholders' perspectives on the Clean Water Act and its 
implementation by the U.S. EPA (``EPA'') and U.S. Army Corps of 
Engineers (``USACE''), specifically the agencies' recent publication of 
their ``Revised Definition of `Waters of the United States' '' rule 
(``the Revised Definition Rule'').
    Our members and supporters live and work across the country, 
spanning urban and rural areas, and they include small business owners, 
farmers, ranchers, and many other diverse livelihoods. Our members have 
in common personal connections with their nearby streams and rivers. 
They care deeply about the health of the nation's waterways and our 
responsibility to steward water resources for future generations.
    Our members have supported the revised ``Waters of the United 
States'' definition because it meets the purpose of the Clean Water 
Act, which is to make our waters healthy, fishable, and swimmable. The 
Revised Definition Rule is rooted in sound science and ensures 
protection of small streams and wetlands that provide clean water not 
just for fisheries but also for farmers, businesses, and communities. 
Hunters and anglers have been consistent defenders of the Clean Water 
Act, and we write today in support of the Revised Definition Rule.
1. The Revised Definition Rule reflects approaches under the Reagan and 
        Bush II Administrations.
    The Revised Definition Rule is a return to approaches for EPA and 
USACE used prior to the 2015 Obama rule. The agencies' rule limits the 
application of a 1986 Reagan-era interpretation with an approach almost 
identical to the 2008 guidance issued under the President George W. 
Bush Administration, which has been the basis for agency decisions for 
most of the past 15 years.
    Although narrower than the 2015 Clean Water Rule, the Revised 
Definition Rule is well within the limits identified in Supreme Court 
precedent, relies on solid science, and draws on the agencies' 
experience and technical expertise. The agencies have long made site-
specific jurisdictional determinations under the Clean Water Act, under 
both Republican and Democratic administrations. The Revised Definition 
Rule restores the long-standing requirement to obtain a 404 Permit for 
disturbance to many headwater streams and wetlands under the case-by-
case agency analysis that had been reversed by the 2020 Navigable 
Waters Protection Rule.
2. Farmers and Ranchers have clarity and certainty under the Revised 
        Definition Rule.
    Routine farming and ranching activities are protected from 
permitting under the Revised Definition Rule. Because the Clean Water 
Act itself exempts from permitting routine, ongoing farming and 
ranching activities, these important economic activities are protected 
under the Revised Definition Rule. Farming, ranching, and forestry 
activities such as plowing, cultivating, minor drainage, and harvesting 
for the production of food, fiber, and forest products, or upland soil 
and water conservation practices are all exempt from 404 permitting 
under Section 404(f)(1)(A) of the Clean Water Act.\1\ The Revised 
Definition Rule recognizes that American agriculture fulfills a vitally 
important public need and ensures that the agricultural exemptions are 
appropriately implemented.
---------------------------------------------------------------------------
    \1\ Memorandum: Clean Water Act Section 404 Regulatory Program and 
Agricultural Activities, United States Environmental Protection Agency 
and United States Department of the Army, (May 3, 1990), available at: 
https://www.epa.gov/cwa-404/memorandum-clean-water-act-section-404-
regulatory-program-and-agricultural-activities (last visited on 
February 7, 2023).
---------------------------------------------------------------------------
3. The Revised Definition Rule protects sustainable economic activity.
    With the adoption of the Revised Definition Rule, the agencies also 
restored the important economic driver of healthy waters that includes 
the outdoor recreation economy, anglers, hunters, boaters, swimmers, 
other outdoor enthusiasts, commercial fisheries and the fishing 
industry. For example, in 2021, an estimated 52.4 million Americans 
fished \2\ and over 30 million Americans hunted.\3\ Nationwide, outdoor 
recreation accounts for 1.9 percent of gross domestic product, 
supporting the employment of 4.5 million Americans.\4\
---------------------------------------------------------------------------
    \2\ Recreational Boating and Fishing Federation, https://
www.takemefishing.org/getmedia/155fcbd1-716a-41e5-ad5b-1450b76b9162/
2022-Special-Report-on-Fishing.pdf (accessed on February 17, 2023).
    \3\ Council to Advance Hunting and Shooting Sports, https://
cahss.org/our-research/2022-special-report-on-hunting-and-the-shooting-
sports (accessed on February 17, 2023).
    \4\ Outdoor Recreation Roundtable, https://
recreationroundtable.org/economic-impact/ (accessed on February 17, 
2023).
---------------------------------------------------------------------------
                               Conclusion
    The undersigned members of the hunting and fishing community 
commend the EPA and ACOE for taking a significant step forward with a 
revised definition that is in line with the objectives of the Clean 
Water Act and is based on a compelling scientific and technical record. 
We submit this written testimony for the record in support of the 
Revised Definition Rule and urge the Subcommittee to ensure that 
accurate information about the Rule is conveyed in the public discourse 
of the Rule, particularly about the Rule's clear protections for 
America's farmers and ranchers.
        Sincerely,
                         American Sportfishing Association.
                            Izaak Walton League of America.
                              National Wildlife Federation.
               Theodore Roosevelt Conservation Partnership.
                                           Trout Unlimited.


                                Appendix

                              ----------                              


Question from Hon. Greg Stanton to Garrett Hawkins, President, Missouri 
                              Farm Bureau

    Question 1. In your opinion, is this rule broader or narrower in 
scope than the 2008 Bush Guidance as it was applied following the 
Supreme Court decisions in SWANCC and Rapanos? If broader, please 
explain specifically how it is broader and what waters under the rule 
are new compared to the 2008 guidance.
    Answer. The Biden Administration's rulemaking is broader than the 
2008 Bush Guidance that was released after the SWANCC and Rapanos 
decision. I can provide a few examples in the preamble that indicate 
that this is an expansion in scope.
    Interpretation of the Relatively Permanent Test: The final rule 
makes the relatively permanent standard more expansive compared to the 
Rapanos Guidance, which used the concept of continuous flow for at 
least one season (typically three months) as a benchmark. The final 
rule abandons the seasonal concept and does not use any bright line 
tests (days, weeks, or months). Relatively permanent tributaries have 
flowing or standing water year-round or continuously during certain 
times of the year. Relatively permanent waters do not include 
tributaries with flowing or standing water for only a short duration in 
direct response to precipitation. This subtle change will greatly 
expand what areas the agencies can assert jurisdiction over, within 
every category, using the relatively permanent test.
    Conversely, because the relatively permanent standard is broader 
than the approach described in the 2008 guidance some of the exemptions 
will become narrower. For example, the ditch exclusion appears 
identical to the exclusion in the 2008 guidance however, as it is 
applied under this new interpretation of the relatively permanent 
test--the exclusion becomes far harder to apply.
    Adjacent Wetlands Category: The agencies interpret continuous 
surface connection to mean a physical connection that does not need to 
be a continuous hydrologic connection.
    Under the relatively permanent standard for adjacent wetlands, 
wetlands meet the continuous surface connection requirement if they are 
separated from a relatively permanent impoundment of a tributary by a 
natural berm, bank, dune, or similar natural landform so long as that 
break does not sever a continuous surface connection and provides 
evidence of a continuous surface connection. This is broader than the 
2008 Guidance, which used to equate continuous surface connection with 
directly abutting and not separated by a berm, dike, or similar 
feature.
    Scope of Significant Nexus Test: Under the 2008 Rule, the agencies 
applied the test to a specific reach of a tributary plus wetlands 
adjacent to that reach. The new rule applies a broader catchment 
approach. The agencies would start by identifying where a specific 
reach flows into a higher order stream. But rather than looking just at 
that reach and its adjacent wetlands, the agencies would look at the 
combined effect of all lower order tributaries upstream of that point 
plus all wetlands adjacent to those lower order tributaries.
    (A)(5) Category: This category was not even mentioned in the 2008 
guidance. The 2008 guidance focuses only on applying the significant 
nexus test to a specific tributary reach plus its adjacent wetlands, 
and it says nothing about how to apply the test to waters outside of 
the tributary system. The new rule applies the significant nexus test 
to this category, and even though the agencies say they will 
``generally'' evaluate whether such waters meet the test on an 
individual basis, the rule on its face allows the agencies to consider 
whether waters ``alone or in combination with similarly situated 
[(a)(5)] waters in the region'' meet the significant nexus test.
    Several key terms and concepts are vague, lack definitions, or are 
contradictory: While this certainly existed in the 2008 guidance, the 
key terms used to apply the significant nexus test are incredibly 
vague. Terms like ``in the region,'' ``similarly situated,'' and 
``significantly affect'' were poorly defined then, and remain ambiguous 
now. Failing to provide these definitions gives the agencies the 
latitude to assert jurisdictional however they please. Landowners and 
small businesses will be forced to hire costly consultants and 
attorneys to determine whether their property has WOTUS and required 
federal permits.

Question from Hon. Greg Stanton to Alicia Huey, Chairman of the Board, 
                 National Association of Home Builders

    Question 1. In your opinion, is this rule broader or narrower in 
scope than the 2008 Bush Guidance as it was applied following the 
Supreme Court decisions in SWANCC and Rapanos? If broader, please 
explain specifically how it is broader and what waters under the rule 
are new compared to the 2008 guidance.
    Answer. Representative Stanton, thank you for your question 
regarding the difference between the Revised Definition of waters of 
the United States (2023 Rule) \1\ and the 2008 Rapanos Guidance 
(Guidance) \2\. In short, the 2023 Rule and its heavy reliance upon the 
problematic significant nexus test are far broader than the Guidance. 
I'll provide a few examples below--
---------------------------------------------------------------------------
    \1\ 88 Fed. Reg. Sec. 3004 (January 18, 2023)
    \2\ U.S. Environmental Protection Agency and U.S. Army Corps of 
Engineers, (December 2, 2008), Clean Water Act Jurisdiction Following 
the U.S. Supreme Court's Decision in Rapanos v. United States & 
Carabell v. United States. Retrieved March 13, 2023, from https://
www.epa.gov/sites/default/files/2016-02/documents/
cwa_jurisdiction_following_
rapanos120208.pdf.
---------------------------------------------------------------------------
      The agencies' interpretation of the relatively permanent 
test is clearly more expansive than under the Guidance. Importantly, 
the agencies' interpretation of the relatively permanent test is 
intentionally more expansive than under the Guidance, resulting in more 
ephemeral features being jurisdictional while eroding the utility of 
the 2023 Rule's exclusions for ditches. Specifically, under the 2023 
Rule, the agencies flatly reject their own approach under the Guidance 
that had described relatively permanent tributaries as having either 
year-round flow or at least seasonal flow (described as possessing 
water at least three months during a given year).\3\ \4\
---------------------------------------------------------------------------
    \3\ 88 Fed. Reg. Sec. 3085 (January 18, 2023)
    \4\ Id., page 7
---------------------------------------------------------------------------
         The agencies refuse to provide any limitations or clarify what 
constitutes relatively permanent flow in the final rule or preamble. 
Leaving the interpretation of this undefined term completely at the 
discretion of federal regulators ensures inconsistent and conflicting 
interpretations in the field. Instead of attempting to provide any 
clarity, the final rule's preamble is littered with conflicting 
descriptions of what might constitute a relatively permanent flow. 
Examples include tributaries or even human-made ditches that contain 
flow only in response to water diversions or even the discharge of 
treated effluent.\5\ Abandoning the description of relatively permanent 
flows used in the Guidance undermines the ditch exclusion and 
significantly expands federal jurisdiction compared to the pre-2015 
regulatory regime. Elsewhere within the final rule's preamble, the 
agencies claim that some ephemeral tributaries that possess water only 
briefly and directly respond to a rainfall event do not constitute 
relatively permanent flow. However, elsewhere in the preamble, the 
agencies claim instances where tributaries or ditches containing flow 
from ``concentrated back-to-back precipitation events'' represent 
relatively permanent flow.\6\
---------------------------------------------------------------------------
    \5\ 88 Fed. Reg. Sec. 3085 (January 18, 2023)
    \6\ 88 Fed. Reg. Sec. 3086 (January 18, 2023)

      The 2023 Rule dramatically expands the use of the 
significant nexus tests by applying it to 3 out of the 5 final rule's 
jurisdictional categories. By comparison, the Guidance limited the use 
of the significant nexus test to only certain reaches of tributaries 
and only those wetlands that were directly adjacent to those specific 
portions of those same tributaries.\7\ \8\ Further, the 2023 Rule's 
(a)(5) jurisdictional category was not even contemplated by the 
agencies under the Guidance because it did not assert jurisdiction over 
any feature outside a tributary system.
---------------------------------------------------------------------------
    \7\ 88 Fed. Reg. Sec. 3142 (January 18, 2023)
    \8\ U.S. Environmental Protection Agency and U.S. Army Corps of 
Engineers, (December 2, 2008), Clean Water Act Jurisdiction Following 
the U.S. Supreme Court's Decision in Rapanos v. United States & 
Carabell v. United States. Page 8. Retrieved March 13, 2023, from 
https://www.epa.gov/sites/default/files/2016-02/documents/
cwa_jurisdiction_following_
rapanos120208.pdf
---------------------------------------------------------------------------
         The 2023 Rule's approach for conducting a significant nexus 
test on an (a)(5) feature creates confusion over the geographic size of 
the area subject to the significant nexus analysis. Specifically, the 
2023 Rule's regulatory text includes the phrase, ``either alone or in 
combination with similarly situated waters in the region.\9\ Thus, the 
regulatory text clearly allows federal regulators to aggerate otherwise 
isolated (a)(5) features when performing significant nexus tests. 
Meanwhile, the rule's preamble contradicts the regulatory text by 
claiming significant nexus analyses performed on (a)(5) features will 
be done individually on a case-by-case basis. By establishing a rule 
where the preamble contradicts the regulatory text, which approach 
might the agencies ultimately take?
---------------------------------------------------------------------------
    \9\ 88 Fed. Reg. Sec. 3142 (January 18, 2023)
---------------------------------------------------------------------------
         Beyond this regulatory confusion created by the rule's 
approach for conducting significant nexus tests on an (a)(5) feature, 
the agencies acknowledged that under the pre-2015 regulatory regime, 
they have never asserted jurisdiction over a feature now covered under 
the final rule's (a)(5) jurisdictional category.\10\ Especially 
following the U.S. Supreme Court's (2001) SWANCC ruling that expressly 
rejected the agencies' assertion of jurisdiction over identical 
isolated ponds and wetlands under the repealed migratory bird rule. 
Thus the 2023 Rule's approach for applying the significant nexus test 
over otherwise non-navigable, isolated, and ephemeral features under 
the 2023 Rule's (a)(5) jurisdictional category is clearly broader than 
the agencies' pre-2015 practices.
---------------------------------------------------------------------------
    \10\ 88 Fed. Reg. Sec. 3103 (January 18, 2023)
---------------------------------------------------------------------------
         The final rule defines ``significantly affect'' as ``a 
material influence on the chemical, physical or biological integrity'' 
of a WOTUS.\11\ Through the significant nexus test, federal regulators 
will determine the jurisdictional status of a water based on its 
functions and factors. Federal agency staff will consider the 
following: contribution to flow; trapping, transformation, filtering 
and transport of materials, including nutrients, sediment and other 
pollutants; retention and attenuation of floodwaters and runoff; 
modulation of temperature in waters; provision of habitat and food 
resources for aquatic species located in waters; the distance from a 
WOTUS; hydrologic features, such as the frequency, duration, magnitude, 
timing and rate of hydrologic connections, including shallow subsurface 
flow; the size, density or numbers of waters that have been determined 
to be similarly situated; landscape position and geomorphology; 
climatology variables such as temperature, rainfall, and snowpack.\12\ 
The agencies fail to describe the necessary impacts before claiming 
jurisdiction over any feature. In contrast, the Guidance established 
the significant nexus test to consider: volume, duration and frequency 
of flow, including consideration of certain physical characteristics of 
the tributary; proximity to the traditional navigable water; the size 
of the watershed; average annual rainfall; average annual winter 
snowpack; the potential of tributaries to carry pollutants and flood 
waters to a TNW; provision of aquatic habitat that supports a TNW; the 
potential of wetlands to trap and filter pollutants or store flood 
waters; maintenance of water quality in TNW.\13\ The agencies are 
expanding what they seek to determine ``material influence'' and 
significant nexus impacts on a WOTUS.
---------------------------------------------------------------------------
    \11\ 88. Fed. Reg. Sec. 3067 (January 18, 2023)
    \12\ 88. Fed. Reg. Sec. 3120 (January 18, 2023)
    \13\ Id., page 8

    The crux of the issue is that instead of issuing a final rule that 
is so reliant upon the significant nexus test to capture otherwise non-
navigable, isolated, and ephemeral features as jurisdictional, the 
agencies should have waited until the Supreme Court issues its ruling 
in Sackett v. EPA to learn if the significant nexus is even legal under 
the CWA. The Court's ruling under Sackett will clearly determine the 
legality of the significant nexus test, a crucial part of the final 
rule. Instead, the agencies have decided to implement this final rule 
before the Court issues a ruling under Sackett. By doing so, the 
agencies are not only creating additional bureaucratic and project 
delays but also directly raising housing costs when the nation is 
already experiencing a housing affordability crisis. Should the 
agencies not provide any further guidance on how the significant nexus 
and relatively permanent standards will be applied in the field, 
regulated landowners and their paid consultants, must simply interpret 
and reinterpret ambiguous descriptions contained within the rule's 
preamble. Lastly, please review the testimony submitted by Frank Murphy 
on behalf of NAHB to the U.S. Small Business Committee on March 8, 
2023, on the impacts the 2023 Rule will have on small businesses and 
the complications of the significant nexus test.\14\
---------------------------------------------------------------------------
    \14\ Small Business Perspectives on the Impacts of the Biden 
Administrations Waters of the United States (WOTUS) Rule: Hearing 
before the House Committee on Small Business, 118th Cong. (2023) 
(testimony of Frank Murphy)
---------------------------------------------------------------------------

   Question from Hon. Greg Stanton to Dave Owen, Harry D. Sunderland 
   Professor of Law and Faculty Director of Scholarly Publications, 
         University of California College of Law, San Francisco

    Question 1. In your opinion, is this rule broader or narrower in 
scope than the 2008 Bush Guidance as it was applied following the 
Supreme Court decisions in SWANCC and Rapanos? If broader, please 
explain specifically how it is broader and what waters under the rule 
are new compared to the 2008 guidance.
    Answer. The 2022 rule is almost identical in scope to the 2008 
guidance document, both as that 2008 guidance was written and as it was 
applied. Both the 2022 rule and the 2008 guidance use Justice Kennedy's 
significant nexus test and Justice Scalia's continuous surface 
connection test as alternative standards for establishing jurisdiction, 
and both extend jurisdiction to adjacent wetlands. Both define the 
significant nexus test in the same basic terms (which are consistent 
with the Clean Water Act's definition of water quality), and thus treat 
hydrologic and ecological connections as relevant to the significant 
nexus analysis. Both treat as jurisdictional ditches that are built in 
or functionally replace natural waterways. Both also include 
traditional exemptions for prior converted cropland, stormwater-control 
features, and short-term flow features like swales and erosional 
gullies.
    The two documents are not the same, but the differences are 
generally in the depth of explanation rather than the scope of 
coverage. For example, the 2022 rule specifically exempts a wider 
variety of features and activities from Clean Water Act coverage. These 
exemptions generally are not new; they have been part of regulatory 
practice for decades. But the 2022 rule makes them more explicit than 
the 2008 guidance did. Likewise, because it is a much longer document, 
the 2022 rule's preamble provides more explanation of the reasons for 
inclusion or exclusion of specific features. But, again, these are just 
differences of explanation. The scope of coverage is the same.
    Because of the variety of features to which the 2022 rule and the 
2008 guidance apply, the similarities between the systems might be 
easiest to see in tabular form, and the table below summarizes the 
consistency.

------------------------------------------------------------------------
                                    Treatment, 2008     Treatment, 2022
   Aquatic Feature or Activity         Guidance              Rule
------------------------------------------------------------------------
Traditional navigable waters....  Jurisdictional....  Jurisdictional.
------------------------------------------------------------------------
Interstate waters...............  Not explicitly      Jurisdictional.
                                   mentioned but
                                   treated as
                                   jurisdictional.
------------------------------------------------------------------------
Wetlands adjacent to navigable    Jurisdictional      Jurisdictional
 waters.                           (even if a man-     (even if a man-
                                   made barrier        made barrier
                                   exists between      exists between
                                   the wetland and     the wetland and
                                   the navigable       the navigable
                                   waters).            waters).
------------------------------------------------------------------------
Non-navigable tributaries with    Jurisdictional....  Jurisdictional.
 relatively permanent surface
 connections to navigable waters.
------------------------------------------------------------------------
Wetlands abutting jurisdictional  Jurisdictional....  Jurisdictional.
 but non-navigable tributaries.
------------------------------------------------------------------------
Non-navigable tributaries that    Jurisdictional      Jurisdictional
 lack relatively permanent         only if             only if
 connections to navigable waters.  protection of the   protection of the
                                   tributary has a     tributary has a
                                   significant nexus   significant nexus
                                   (individually or    (individually or
                                   in combination      in combination
                                   with other          with other
                                   similar features)   similar features)
                                   to water quality    to water quality
                                   in navigable-in-    in navigable-in-
                                   fact waters.        fact waters.
------------------------------------------------------------------------
Wetlands adjacent to tributaries  Jurisdictional      Jurisdictional
 that lack relatively permanent    only if             only if
 connections to navigable waters.  protection of the   protection of the
                                   wetland has a       wetland has a
                                   significant nexus   significant nexus
                                   (individually or    (individually or
                                   in combination      in combination
                                   with other          with other
                                   similar features)   similar features)
                                   to water quality    to water quality
                                   in navigable-in-    in navigable-in-
                                   fact waters.        fact waters.
------------------------------------------------------------------------
Wetlands adjacent to but not      Jurisdictional      Jurisdictional
 directly abutting permanent,      only if             only if
 nonnavigable waters.              protection of the   protection of the
                                   wetland has a       wetland has a
                                   significant nexus   significant nexus
                                   (individually or    (individually or
                                   in combination      in combination
                                   with other          with other
                                   similar features)   similar features)
                                   to water quality    to water quality
                                   in navigable-in-    in navigable-in-
                                   fact waters.        fact waters.
------------------------------------------------------------------------
Ditches constructed wholly in     Non-jurisdictional  Non-
 uplands and with non-permanent                        jurisdictional.
 flow.
------------------------------------------------------------------------
Ditches that are constructed in   Jurisdictional, if  Jurisdictional, if
 or that replace natural stream    the ditch meets     the ditch meets
 flows.                            the relatively      the relatively
                                   permanent surface   permanent surface
                                   connection or       connection or
                                   significant nexus   significant nexus
                                   test.               test.
------------------------------------------------------------------------
Swales or erosional features      Non-jurisdictional  Non-
 with only occasional flow.                            jurisdictional.
------------------------------------------------------------------------
Prior converted cropland........  Non-jurisdictional  Non-
                                                       jurisdictional.
------------------------------------------------------------------------
Artificially irrigated areas      Not explicitly      Non-
 that would revert to dry land     mentioned but       jurisdictional.
 if irrigation ceased.             generally treated
                                   as
                                   nonjurisdictional.
------------------------------------------------------------------------
Artificial lakes and ponds        Not explicitly      Non-
 created in dry land and used      mentioned but       jurisdictional.
 for purposes like stock           generally treated
 watering, irrigation, settling    as
 basins, or rice growing.          nonjurisdictional.
------------------------------------------------------------------------
Pits and other temporary          Not explicitly      Non-
 features created during           mentioned but       jurisdictional.
 construction.                     generally treated
                                   as
                                   nonjurisdictional.
------------------------------------------------------------------------

  Question from Hon. Troy A. Carter to Dave Owen, Harry D. Sunderland 
   Professor of Law and Faculty Director of Scholarly Publications, 
         University of California College of Law, San Francisco

    Question 1. Mr. Owen, do you see the Biden administration's WOTUS 
rules as helping to facilitate the current trend of state action being 
taken to protect our waterways?
    Answer. The Biden Administration's WOTUS rules will help facilitate 
state protection of waterways. They will do so in several ways.
    First, by retaining the traditional geographic reach of the Clean 
Water Act, the rules will retain the traditional geographic scope of 
state programs designed to implement the Clean Water Act. Almost all 
states implement key parts of the statute, including the National 
Pollutant Discharge Elimination System, which is the statute's most 
important permitting program, and many states have chosen to make state 
regulatory jurisdiction consistent with the scope of the federal 
statute. That means that if federal jurisdiction shrinks, state 
jurisdiction shrinks with it--unless the state revises its statutes and 
individually pursues programs that it previously implemented with 
collaboration and support from the federal government.
    Shrinking the scope of jurisdiction would undermine state authority 
in other ways. For example, states would lose important authority under 
Clean Water Act section 401. Section 401 allows states to condition 
federal authorization for any activity involving a discharge upon 
compliance with state laws protecting water quality. In other words, it 
gives states authority to make sure the federal government does not 
harm state waters without state permission. States routinely use this 
authority, particularly with respect to permits issued by the US Army 
Corps of Engineers. But section 401 authority only reaches as far as 
the Clean Water Act reaches. If the scope of the Act's protections 
becomes narrower, states will lose much of their authority under 
section 401.
    Both of these examples capture a broader point. Because so much of 
Clean Water Act implementation is done by the states, and because the 
Clean Water Act protects water quality, retaining the traditional 
geographic scope of Clean Water Act coverage means retaining and 
supporting traditional state water quality protection. Those 
protections will benefit not just the states in which the protective 
activity occurs, but also every downstream state.
    I hope you find these responses helpful, and please do not hesitate 
to contact me if I can be of additional assistance.

                            [all]